Opinion
No. C99-0133
November, 2000.
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to briefs on the merits of this application for disability insurance benefits. This matter was referred to the undersigned United States Magistrate Judge for the issuance of a report and recommendation. It is recommended that the court find in favor of the Plaintiff, and against the Defendant, and remand for an award of benefits.
PROCEDURAL BACKGROUND
Plaintiff Denise Bricker filed for Title II and Title XVIII social security disability income benefits on September 19, 1996, alleging an inability to work because of low back pain. Her application was originally denied and denied again on reconsideration. On May 28, 1998, Administrative Law Judge (ALJ) John P. Johnson found Plaintiff was not entitled to benefits. On August 10, 1999, after consideration of additional evidence, the Appeals Council of the Social Security Administration denied Plaintiffs request for review. Plaintiff filed this petition for judicial review on October 12, 1999.
FACTUAL BACKGROUND
Plaintiff is a forty-four year old female. (Tr. 58). She is five-feet four-inches tall and weighs 250 pounds. (Tr. 75). She has a high school diploma and is a certified nurse's assistant (CNA). (Tr. 58). She worked for twenty-two years as a CNA. (Tr. 59). Plaintiff also performed the duties of a Certified Staff Member (CSM), which included applying ointments to patients. (Tr. 23-24). Plaintiff also had some type of training as a certified med aide. (Tr. 98). This job required her to pass medications, but Plaintiff only performed the job for a short length of time. (Tr. 100).
On March 7, 1996, Plaintiff injured her back while reaching into a cabinet. (Tr. 62). On March 8, 1996, she sought treatment from W.J. Lawton, M.D., her primary care physician. (Tr. 182). Dr. Lawton prescribed pain medication and instructed her to start physical therapy. (Tr. 182). When Dr. Lawton re-evaluated her on March 12, 1996, Plaintiff had improved thirty percent. (Tr. 182). By March 15, 1996, she was fifty percent better. (Tr. 18 1-82). On March 22, 1996, Plaintiff reported that she had severe lower back pain. (Tr. 181). Dr. Lawton prescribed medication and instructed her to continue physical therapy. (Tr. 181). On March 29, 1996, Plaintiff could flex to 60 degrees with stiffness, and had moderate muscle tenderness in her back. (Tr. 181). Dr. Lawton allowed her to return to work on a light duty basis. (Tr. 181).
On April 8, 1996, Plaintiff reported she had experienced increased pain in her back after attempting to return to work. (Tr. 181). Dr. Lawton diagnosed her with a probable lumbosacral strain. (Tr. 181). X-rays were negative. (Tr. 181). Dr. Lawton recommended that she be off work completely and continue physical therapy. (Tr. 181). On April 22, 1996, Plaintiff reported she was not better, and Dr. Lawton referred her for an orthopedic consultation. (Tr. 181).
On April 23, 1996, Michael L. McCarty, M.D., an orthopedic surgeon, examined Plaintiff and diagnosed myofascial pain. (Tr. 183). He prescribed muscle relaxants for pain, suggested use of a back support, and told her to apply moist heat when in pain. (Tr. 183). He suggested a follow-up examination in two weeks. (Tr. 183).
On August 22, 1996, Veronika Kolder, M.D., a gynecologist, evaluated Plaintiff. (Tr. 184-85). Dr. Kolder diagnosed Plaintiff with probable uterine fibroids. On September 11, 1996, Lowell R. Hughes, M.D., examined Plaintiff and indicated that a hysterectomy was unlikely to alleviate her back pain. (Tr. 189).
On August 15, 1996, Plaintiff met with Karen Drake, M.A., a physical therapist, who concluded that Plaintiff had lingering back symptoms which appeared to be largely in soft tissues. (Tr. 191-92). She gave Plaintiff a program of activities to assist in dealing with her symptoms, and referred her to a vocational rehabilitation specialist. (Tr. 192). Also on August 15, 1996, Plaintiff met with Tom Lanes, the vocational rehabilitation specialist to whom Karen Drake referred her. (Tr. 190). Plaintiff stated she wished to engage in competitive employment in the future. (Tr. 190). Mr. Lanes gave Plaintiff suggestions for assistance in finding permanent employment. (Tr. 190).
Plaintiff has Fragile X Syndrome. On October 4, 1996, Randi Hagerman, M.D., a developmental pediatrician at the Fragile X Treatment and Research Center in Denver, Colorado, reported that Plaintiff had undergone DNA testing in 1993. (Tr. 209). Plaintiff has the FMRI gene mutation and is a mosaic carrier for Fragile X Syndrome. (Tr. 209). Fragile X is associated with clinical findings of connective tissue disorder. (Tr. 209). Dr. Hagerman stated that Plaintiffs low back pain could be associated with Fragile X Syndrome. (Tr. 209).
On December 23, 1996, R.M. Carney, M.D., treated Plaintiff for mid-sternal pain that radiated down her ribcage. (Tr. 212). Plaintiff had recently had her gallbladder removed and had eaten some chocolate and gas-forming foods. (Tr. 212). Dr. Carney prescribed medication and suggested dietary changes. (Tr. 212).
On March 5, 1997, Dr. Hagerman evaluated Plaintiff at the Fragile X Treatment and Research Center. (Tr. 225-27). During her visit, she was also seen by Dr. Eilert, who was concerned about Plaintiffs obesity and diagnosed her with a degenerative disk which he felt would a take a year from which to recover. (Tr. 226). Dr. Hagerman stated that Plaintiff "was not retarded from fragile X syndrome but it has caused significant cognitive deficits which take her down into the borderline range." (Tr. 226). Dr. Hagerman stated Plaintiff was not having significant emotion problems related to Fragile X other than social anxiety, which may require medication in the future. (Tr. 226). Dr. Hagerman heard a cardiac murmur during the evaluation. (Tr. 227). Because mitral valve prolapse is common in adult patients with Fragile X, Dr. Hagerman recommended a cardiac evaluation. (Tr. 227). Dr. Hagerman also recommend Plaintiff see an ophthalmologist or optometrist. (Tr. 227).
During her evaluation at the Fragile X Center, Plaintiff was evaluated by a developmental specialist, Rebecca O'Connor. (Tr. 226). Plaintiff was given the WAIS-R. (Tr. 226, 22829). Her full scale IQ was 87, in the low normal range; the verbal score was 83, in the borderline range; and her performance score was 92, in the normal range. (Tr. 226, 22829). Plaintiff demonstrated significant strength on the Vocabulary Subtest, but demonstrated significant difficulty and a relative weakness on the Arithmetic Subtest which required solving a series of arithmetic problems mentally. (Tr. 228). Ms. O'Connor stated this observation was fairly consistent with the findings in other women with Fragile X syndrome. (Tr. 228-29).
John D. Bayless, Ph.D., a licensed psychologist, examined Plaintiff on March 10, 1997 for disability purposes. (Tr. 231-33). Dr. Bayless noted that comprehensive neuropsychological assessments revealed significant impairments. (Tr. 232). He characterized Plaintiffs performance in mathematics as "a relative deficit" and ranked her performance in the first percentile. (Tr. 232). Dr. Bayless stated her intellectual and neuropsychological evaluation revealed significant impairment in her nonverbal abilities, with deficits in visuoperceptual and visuospatial abilities and organization. (Tr. 232). He reported Plaintiff had significant deficits in memory and learning acquisition, low average reading and spelling skills with defective mathematics performance, and psychosocial impairments. (Tr. 232-33). Dr. Bayless also stated: "Significant impairments in learning acquisition, memory, judgment and nonverbal abilities probably preclude all but the most repetitive job placements. . . . Given her cognitive performances, I do not believe she should have ever been functioning as a certified nursing assistant independently in charge of patient cares [sic]." (Tr. 233). Based on his findings, Dr. Bayless concluded that Plaintiff "should be considered virtually unemployable for the purposes of full-time competitive employment." (Tr. 256).
On April 10, 1997, a state agency psychologist reviewed Plaintiffs records. (Tr. 249). The psychologist stated Plaintiff would have difficulty performing complex cognitive activity requiring attention to minute details, and that she would have "difficulty sustaining activity in settings where she were required to have frequent stressful interaction with large numbers of people." (Tr. 249).
On February 11, 1998, Plaintiff underwent a physical evaluation for Rural Employment Alternatives, Inc. (Tr. 264-65). Her physical capacity evaluation stated that clerical work was acceptable, and that she should avoid heavy physical work, and bending or sitting for prolonged periods. (Tr. 265).
On June 11, 1998, Plaintiff saw Matthew Rizzo, M.D., a neurologist. (Tr. 267-68). Dr. Rizzo noted Plaintiffs Fragile X Syndrome, obesity, cognitive weakness and chronic low back pain. (Tr. 267). He also noted that Plaintiff "had problems with serial subtractions and could not count backwards and spell very well." (Tr. 268). The EMG/NCV results were consistent with lubrosacral radiculopathy. (Tr. 268). An MRI of the lumbar spine showed mild to moderate central stenosis. (Tr. 268).
The hearing before the ALJ was held on April 8, 1998. (Tr. 55-108). Plaintiff testified that she had a difficult time in school, and that no special education classes had been available to help her. (Tr. 58-59). Plaintiff testified that her duties as a CNA had included moving patients, assisting them with getting ready for bed, and turning patients over while in bed. (Tr. 60). After injuring her back, Plaintiff testified walking, climbing stairs, and sitting or standing for more than fifteen minutes at a time is difficult. (Tr. 72, 79-81). Plaintiff testified she had difficulty reading and comprehending the newspaper, but that she did not have difficulty writing. (Tr. 76). She testified that mathematics was difficult for her, especially subtraction. (Tr. 76). She testified that when she makes a purchase at the store, she would know how much money to give the cashier, but that she would not know whether she received the correct change. (Tr. 76).
Plaintiff testified that she has difficulty remembering things and understanding and following directions. (Tr. 81-83). She stated that when learning to do something, she usually has to be shown how to do something two or three times before being able to perform the task herself. (Tr. 82-83). Plaintiff testified that on a typical day, she gets up around 7 a.m. and goes to bed around 10 p.m. (Tr. 84). She has no difficulties bathing, dressing or feeding herself. (Tr. 84). She helps her mother with dishes after meals, she can fold clothes and do some housework. (Tr. 84). She also assists in caring for her disabled brothers. (Tr. 84-85).
Plaintiffs mother, Vera Beth Bricker, also testified at the hearing. (Tr. 87). Mrs. Bricker testified that Plaintiffs description of her pain since injuring her back was genuine. (Tr. 88-89). Of Plaintiffs family of eight, four have Fragile X Syndrome. (Tr. 89). Plaintiffs brothers suffer from severe mental retardation. (Tr. 89).
Dr. Bayless, the psychologist who evaluated Plaintiff, also testified at the hearing. (Tr. 90). Dr. Bayless stated that Plaintiffs brain damage is probably more right-sided than left-sided. (Tr. 93). In regards to performing as a CNA, Dr. Bayless stated: "I frankly don't believe she had any business taking care of patients in any capacity, and I believe she shouldn't have done that job." (Tr. 93).
CONCLUSIONS OF LAW Scope of Review
In order for the court to affirm the Administrative Law Judge's (ALJ) findings of fact, those findings must be supported by substantial evidence appearing on the record as a whole. See Lochner v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992); Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989). Substantial evidence is more than a mere scintilla; it means relevant evidence a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1997);Cruse, 867 F.2d at 1184; Taylor v. Bowen, 805 F.2d 329, 331 (8th Cir. 1986). The court must take into account evidence which fairly detracts from the ALJ's findings. Cruse, 867 F.2d at 1184; Hall v. Bowen, 830 F.2d 906, 911 (8th Cir. 1987). Substantial evidence requires something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence." Cruse, 867 F.2d at 1184 (quoting Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620 (1966)). The court must consider the weight of the evidence appearing in the record and apply a balancing test to contradictory evidence. Gunnels v. Bowen, 867 F.2d 1121, 1124 (8th Cir. 1989); Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987).
ALJ's Determination of Disability
Determining whether a claimant is disabled is evaluated by a five-step process. See 20 C.F.R. § 404.1520 (a)-(f); Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
The five steps are:
(1) If the claimant is engaged in substantial gainful activity, disability benefits are denied.
(2) If the claimant is not engaged in substantial gainful activity, her medical condition is evaluated to determine whether her impairment, or combination of impairments, is medically severe. If the impairment is not severe, benefits are denied.
(3) If the impairment is severe, it is compared with the listed impairments the Secretary acknowledges as precluding substantial gainful activity. If the impairment is equivalent to one of the listed impairments, the claimant is disabled.
(4) If there is no conclusive determination of severe impairment, then the Secretary determines whether the claimant is prevented from performing the work she performed in the past. If the claimant is able to perform her previous work, she is not disabled.
(5) If the claimant cannot do her previous work, the Secretary must determine whether she is able to perform other work in the national economy given her age, education, and work experience.Trenary v. Bowen, 898 F.2d 1361, 1364 n. 3 (8th Cir. 1990) (citing Bowen v. Yuckert, 482 U.S. at 140-42); 20 C.F.R. § 404.1520 (a)-(f).
"To establish a disability claim, the claimant bears the initial burden of proof to show that he is unable to perform his past relevant work."Frankl v. Shalala, 47 F.3d 935, 937 (8th Cir. 1995) (citing Reed v. Sullivan, 988 F.2d 812, 815 (8th Cir. 1993)). If the claimant meets this burden, the burden of proof then shifts to the Commissioner to demonstrate that the claimant retains the residual functioning capacity (RFC) to perform a significant number of other jobs in the national economy that are consistent with the claimant's impairments and vocational factors such as age, education and work experience. Id.
Under the first step of the analysis, the ALJ found that Plaintiff had not been engaged in substantial gainful activity since March 7, 1996. (Tr. 14). Under the second step, the ALJ determined Plaintiffs impairments were medically severe as defined in the regulations. (Tr. 14). Under the third step, the ALJ determined Plaintiffs impairments did not meet any of the criteria of any listed impairment. (Tr. 24-25). Under the fourth step, the ALJ determined Plaintiff did not have the RFC to perform her past relevant work. Under the fifth step, the ALJ determined Plaintiff had the following transferrable skills from her past work: "following verbal/written orders, working independently, record keeping/charting, documentation skills and knowledge of medicine dosages, etc." (Tr. 25). The ALJ concluded the Plaintiff had:
[T]he residual functional capacity to perform the physical exertion and nonexertional requirements of work except for lifting and/or carrying more than 20 pounds occasionally and 10 pounds frequently; standing, walking, or sitting for more than 60 minutes at a time; bending, stooping, squatting, kneeling, crawling or climbing repetitively; and mentally doing complex-technical work or work requiring very close attention to detail, no supervision or more than a regular pace.
(Tr. 26). Based on this RFC, the ALJ concluded Plaintiff could perform work as a Medical Records Clerk, DOT 245.362-010. The ALJ also determined that Plaintiff could perform the following unskilled jobs: Parking Lot Cashier, DOT 211.462-010; Arcade Attendant, DOT 342.667-022; and Microfilm Document Preparer, DOT 249.587-018. (Tr. 25). Therefore, the ALJ denied benefits.
Evaluation of Cognitive Limitations
Plaintiff does not contest the physical RFC found by the ALJ; instead, Plaintiff claims the ALJ failed to consider her cognitive limitations. Dr. Bayless repeatedly expressed the opinion that Plaintiff should not have been performing the duties of a CNA with her level of mental impairments. (Tr. 93, 233). The ALJ noted Dr. Bayless' opinion that Plaintiffs combination of physical impairments and mental impairments rendered her "virtually unemployable for full-time competitive employment." (Tr. 23). However, the ALJ gave the opinion of Dr. Bayless no weight. (Tr. 24). In deciding to give no weight to Dr. Bayless' opinion, the ALJ noted Plaintiffs work experience as a CNA and as a CSM:
Dr. Bayless' opinion . . ., is inconsistent with the claimant's 20 year successful work experience, not only as a CNA, but also as a CSM. The record contains a letter from Mac [sic] Stanerson, a registered nurse, who worked with the claimant for 15 years, and who attested to her ability to perform the duties of her job. . . . Contrary to Dr. Bayless' opinion, the claimant was able to function not only as a certified nursing assistant, but she was able to perform the detailed and responsible duties as a certified staff member including the dispensing of medication. Considering the record as a whole, the opinion of Dr. Bayless is given no weight.
(Tr. 23-24). The ALJ also gave no weight to the state agency medical consultants who reviewed Plaintiffs medical records and determined Plaintiff should be limited to "simple, repetitive, and routine cognitive activity without severe restrictions of function." (Tr. 24, 249). The ALJ concluded: "The claimant is not able to do very complex-technical work, but [is] able to do more than simple, routine, repetitive work. . . ." (Tr. 24). This finding is not supported by substantial evidence in the record as a whole.
First, the record contains very little evidence regarding Plaintiffs performance as a CSM. When asked about how the duties of a CSM differed from a CNA, Plaintiff testified:
A. They just have you do treatments.
Q. And what type of treatments would they have you do?
A. Well, it's on a card so that you'd know exactly what to do.
Q. Would that [be something like] dressing changes —
A. Oh, I — it wouldn't exactly be a dressing change, it's just a topic[al] type of cream or something they'd put on like a mole, or, or [something].
(Tr. 23-24). The record also contains a small amount of testimony about Plaintiff becoming a certified med aide. (Tr. 98-99). Plaintiff received some type of training for this position. (Tr. 98). Plaintiff testified:
Q. How was the med aide job different than either the certified nursing assistant or the certified staff member?
A. The med aide did, did all of that, plus passing the meds, plus —
Q. That would just qualify you to pass the medications?
A. Yes, it did.
Q. And when you passed the medications, would you have to notate the chart on that?
A. Yes, you did.
(Tr. 99). Plaintiff had not worked in the med aide position long enough to be evaluated. (Tr. 99). The record does not indicate whether Plaintiff actually performed the duties of a med aid.
Second, when deciding to give no weight to Dr. Bayless' opinion, the ALJ's opinion specifically refers to the letter written by Mae Stanerson, a registered nurse who was Plaintiffs co-worker. In this letter, Stanerson wrote:
[Plaintiff] worked with me for about 15 years. She was a very good CNA. She worked everywhere nursery, labor room, and on the floor-wherever she was needed. She loved people and gave very good care, especially to older people.
Being [in] a small town, we had a lot of elderly people to care for and that means a lot of lifting. . . .
Working 11-7, sometimes means you don't have enough staff and you lift a lot by yourself.
I feel anyone who has given community service this long deserves some help in return.
I hope she will receive [sic] this help.
(Tr. 162). The supplemented record before the Appeals Council contains a follow-up letter from Stanerson:
About Denise, my letter was intended to address the fact that she was a hard worker and gave her best effort.
It was not intended to be a [sic] evaluation of her mental capacity.
As a CNA she was under supervision. They have many duties. They are an aid to help the nurse and the patient. They work as a team to care for patients.
Much of that time is lifting, turning and moving patients. . . .
(Tr. 271).
Plaintiffs work history and the letter from Plaintiffs co-worker are not inconsistent with the record as a whole, and the ALJ's decision to give no weight to Dr. Bayless' opinion is not supported by substantial evidence. Dr. Bayless stated he believed that Plaintiff "should never have been functioning as a certified nursing assistant independently in charge of patient cares [sic]." (Tr. 233) (emphasis added). The record does not indicate that Plaintiff functioned independently without supervision. As stated in the follow-up letter, Ms. Stanerson's first letter was not meant to be a comment upon Plaintiffs level of mental capacity. Moreover, the record also indicates Plaintiff struggled both in school growing up and in her CNA class. The record does not contain substantial evidence to support the ALJ's decision to give no weight to the opinion of Dr. Bayless.
Deterioration of a Mental Impairment
The Commissioner contends the ALJ properly rejected the mental capacity medical opinions regarding Plaintiffs employability. The Commissioner argues that Plaintiff had worked for twenty-two years as a CNA without her Fragile X Syndrome impeding upon her ability to perform the duties of her job. Therefore, unless Plaintiff is able show significant deterioration, the impairment from the Fragile X Syndrome cannot be considered disabling because it has not precluded her from working in the past.
Generally, a claimant's "function[ing] in the past with certain impairments is not necessarily substantial evidence of present ability to work since `(a) condition which was tolerable at one time can deteriorate to the point that it becomes intolerable'" Davis v. Califano, 605 F.2d 1067, 1072 (8th Cir. 1979) (quoting Johnson v. Califano, 572 F.2d 186, 188 (8th Cir. 1978)); see also Cleaver v. Secretary of Health Human Services, 683 F. Supp. 708, 711 (E.D. Ark. 1988); Johnston v. Harris, 511 F. Supp. 178, 180 (W.D. Mo. 1981). While Plaintiff made no showing of deterioration of her mental impairments and Dr. Bayless testified that Plaintiffs Fragile X Syndrome was congenital and most likely a static condition, (Tr. 97), the Commissioner's argument fails to take into account any accommodation made by Plaintiffs previous employer. The Commissioner argues that the ALJ's implicit finding that Plaintiff worked without accommodation is reasonable; however, Plaintiffs work record indicates that she primarily lifted and turned patients, and applied ointments to patients as directed. The record does not indicate that she independently dispensed medications or worked without close supervision. She was able to perform the physical requirements of her job with her level of mental impairment. The record, however, does not support the conclusion that Plaintiff does not have impaired mental functioning and can therefore perform more than simple, routine, repetitive work.
Ability to Perform Other Jobs
Based on the hypothetical posed to the vocational expert, the ALJ concluded that Plaintiff could perform the duties of a medical records clerk, a parking lot cashier, an arcade attendant, and a microfilm document preparer. (Tr. 25). Plaintiff argues the ALJ failed to take into account her inability to do arithmetic when determining she could perform these jobs, and that the Commissioner failed to meet its burden of showing Plaintiff could perform these jobs. The Commissioner argues the failure to consider mathematical deficiencies was not in error and that it properly met its burden at step five of the sequential analysis.
A considerable portion of the Commissioner's brief is devoted to arguing that the Commissioner properly met its burden of proof at step five of the sequential analysis. Step five requires a determination of whether a claimant is able to perform work in the national economy based on the claimant's age, education and work experience. 20 C.F.R. § 404.1520. The Commissioner cites to Roth v. Shalala, which states the burden of production shifts to the Commissioner "to demonstrate that there are jobs available in significant numbers in the national economy that [a claimant] is able to perform," while the burden of persuasion remains with the claimant. Roth v. Shalala, 45 F.3d 279 (8th Cir. 1995). Roth and a footnote in Young v. Apfel seem to be two of the only Eighth Circuit cases which take this position. See Young v. Apfel, 221 F.3d 1065, 1069 n. 5 (8th Cir. 2000). The overwhelming majority of Eighth Circuit cases, however, indicate that the Commissioner has the burden at step five to prove a significant number of jobs exist in the national economy that a claimant can perform. See McPherson v. Apfel, 110 F. Supp.2d 1162, 1169 (ND. Iowa 2000) (citing seventeen cases decided between 1998 and 2000 indicating the burden is proof rather than production); Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000) ("If the Commissioner finds that the claimant does not meet the Listings but is nevertheless unable to perform his or her past work, the burden of proof shifts to the Commissioner to prove, first, that the claimant retains the residual functional capacity to perform other kinds of work, and, second, that other such work exists in substantial numbers in the national economy."); Cunningham v. Apfel, 222 F.3d 496, 501 (8th Cir. 2000) ("If the claimant is unable to perform his or her past work, the burden of proof shifts to the Commissioner. . ."); Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000) ("In our circuit it is well settled law that once a claimant demonstrates that he or she is unable to do past relevant work, the burden of proof shifts to the Commissioner to prove, first that the claimant retains the residual functional capacity to do other kinds of work, and, second that other work exists in substantial numbers in the national economy that the claimant is able to do."); see also Fenton v. Apfel, 149 F.3d 907, 910 (discussing the burden at the fifth step as a two-fold burden: (1) "to first prove by medical evidence that the claimant has the requisite residual functional capacity (RFC) . . . to do other kinds of work," and (2) "to demonstrate that jobs are available in the national economy, realistically suited to claimant's qualifications and capabilities."). Based on the overwhelming majority of Eighth Circuit cases, the Commissioner must prove that jobs exist in the national economy which Plaintiff can perform.
The Commissioner is correct in its assertion that RFC includes both medical and vocational factors. The burden of proof, however, remains with the Commissioner to prove a claimant can perform jobs in the national economy. The hypothetical posed to the vocational expert should precisely describe the claimant's impairments in order for the expert to properly evaluate the availability of jobs the claimant can perform.Newton v. Chater, 92 F.3d 668, 694-95 (8th Cir. 1996). An improper hypothetical cannot serve as substantial evidence. Whitmore v. Bowen, 785 F.2d 262, 263-64 (8th Cir. 1986).
The ALJ concluded that Plaintiff could perform the duties of a medical records clerk, a parking lot cashier, an arcade attendant, and a microfilm document preparer. (Tr. 25). The record indicates Plaintiff had poor arithmetic skills, falling in the first percentile. (Tr. 232). In addition, Plaintiff testified that she would not know whether she had received the correct change after making a purchase. (Tr. 76). The Commissioner argues that the jobs identified by the vocational expert require Plaintiff to have math skills equal to or less than that required in her past relevant work as a CNA. Therefore, the Commissioner argues because she performed her past work, she should be able to perform other jobs requiring the same or lower levels of mathematics skills. According to the DOT, Plaintiffs past work as a CNA required level two of mathematical development. Dictionary of Occupational Titles 355.674-14 (4th ed. 1991) [hereinafter DOT. Level Two of mathematical development requires the ability to "[a]dd, subtract, multiply, and divide all units of measure. Perform the four operations with like common and decimal fractions. Compute ratio, rate, and percent. Draw and interpret bar graphs. Perform arithmetic operations involving all American monetary units." DOT Appendix C.
The ALJ concluded Plaintiff could work as a medical records clerk, parking lot cashier, arcade attendant, and microfilm document preparer. The first position, a medical records clerk, includes duties such as maintaining records, reviewing records for completeness, assembling them into a standard order, filing the records in an alphabetic and numeric filing system, compiling statistical data, and operating a computer to enter and retrieve data. DOT 245.362-010. The position requires a level three of mathematical development, which requires the following skills:
Compute discount, interest, profit and loss; commission, markup, and selling price; ratio and proportion; and percentage. Calculate surfaces, volumes, weights, and measures.
Algebra: Calculate variables and formulas; monomials and polynomials; ratio and proportion variables; and square roots and radicals.
Geometry: Calculate plane and solid figures; circumference, area, and volume. Understand kinds of angles and properties of pairs of angles.
DOT Appendix C. The record indicates that Plaintiffs position as a CNA primarily required lifting patients. The record also indicates Plaintiff has a below average IQ and significant cognitive impairments. The evidence in the record does not support a finding that Plaintiff could perform the duties of a medical records clerk.
The second and third positions, the Parking Lot Attendant and Arcade Attendant, require level two of mathematical development and require the ability to make change and deal with money. DOT 211.462-010, 342.667-014. The fourth position, a Microfilm Document Preparer, requires the ability to organize and index material according to an index code, and requires level one of mathematical development: "Add and subtract two digit numbers. Multiply and divide by 10's and 100's by 2, 3, 4, 5. Perform the four basic arithmetic operations with coins as part of a dollar. Perform operations with units such as cup, pint, and quart; inch, foot, and yard; and ounce and pound." DOT 249.587-018, Appendix C.
The Commissioner did not meet its burden of proof and the conclusion that Plaintiff could perform these jobs is not supported by substantial evidence. Plaintiff testified that she has difficulty with math and does not know how to make change. Her test scores place her in the first percentile of mathematical intelligence function. The record does not support the ALJ's conclusion that Plaintiff could perform any of the positions identified by the vocational expert.
Upon the foregoing,
IT IS RECOMMENDED that unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, the court find in favor of the plaintiff and remand for an award of benefits.
Objections must specify the parts of the report and recommendation to which objections are made. Objections must also specify the parts of the record, including exhibits and transcripts lines, which form the basis for such objections. See Fed R. Civ. P . 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).