Opinion
Case No. 8:01CV3181
October 8, 2002
AMENDED MEMORANDUM AND ORDER
This matter is before the Court on the denial, initially and on reconsideration, of an application for disability insurance benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. § 401-433 and an application for supplemental security income (SSI) benefits based on disability under Title XVI, 42 U.S.C. § 1381-1383. The Court has carefully considered the record and the parties' briefs.
PROCEDURAL BACKGROUND
On August 21, 1998, the Plaintiff, Hope E. Calmer, filed an application for disability benefits. In her application, Calmer alleged that, after a August 18, 1998 fall, she aggravated a previous injury and became disabled due to back, ankle and hip pain. (Tr. 107-09.) The claims were denied initially (Tr. 72, 74-79) and on reconsideration (Tr. 73, 82-86.) In denying Calmer's claims, the Social Security Commissioner noted that Calmer is overweight. (Tr. 74.) On June 3, 1999, an administrative hearing was held before administrative law judge ("ALJ") Jan E. Dutton. (Tr. 36-71.) While Calmer's case was still pending before the ALJ, on August 24, 1999 the Social Security Administration ("SSA") issued the Revised Medical Criteria for Determination of Disability, Endocrine System and Related Criteria, 64 Fed. Reg. 46,122 (Aug. 24, 1999). The revised medical criteria deleted Listing 9.09 (Obesity) from 20 C.F.R. Part 404, subpart P, appendix I, also known as the "listings," and made additional changes in the listings to ensure that obesity would continue to be addressed. Id. at 46,123.
These changes were to take effect on October 25, 1999. Id. at 46,122. On September 22, 1999, the ALJ issued a decision finding that Calmer was not "disabled" within the meaning of the Act and therefore is not eligible for either disability or SSI benefits. (Tr. 19-31.) On October 6, 1999, Calmer filed a request for review of the ALJ's decision. (Tr. 16-18.) On May 15, 2000, the SSA issued a new Social Security Ruling 00-3p, relating to obesity. Soc. Sec. Rul. 00-3p, 65 Fed. Reg. 31,039 (May 15, 2000). Often referred to as a "clarifying ruling," ruling 00-3p stated specifically that the final rules deleting Listing 9.09 applied to two types of claims filed before October 25, 1999: those awaiting either an initial determination or decision on appeal at any level of the administrative review process; or those that had been appealed to "court." On May 21, 2001, after considering additional evidence (Tr. 367-68), the Appeals Council denied Calmer's request for review. (Tr. 5-6.) Neither the ALJ nor the Appeals Council specified whether the listings that applied were those in effect before October 25, 1999 or those that took effect after that date. (Tr. 5-6, 19-31.) Calmer now seeks judicial review of the ALJ's determination as the final decision of the Defendant, the Commissioner of the SSA. (Filing No. 1.)
Jo Anne B. Barnhart, the new Commissioner of Social Security, is substituted for Larry G. Massanari, Acting Commissioner of the Social Security Administration, as Defendant pursuant to Federal Rule of Civil Procedure 25(d)(1).
Calmer claims that the ALJ erred in: 1) failing to explain the determination that Calmer does not meet the requirements of the listings; 2) determining that substantial evidence does not support the finding that Calmer does not meet the listings; and 3) finding Calmer's testimony not credible. In conjunction with the second issue, Calmer discusses the October 25, 1999 change in the listings.
Upon careful review of the record, the parties' briefs and the law, the Court concludes that the Commissioner's final decision denying benefits is not supported by substantial evidence on the record as a whole. Therefore, the Court will reverse the Commissioner's decision and remand this case for reconsideration and further proceedings consistent with this Memorandum and Order.
FACTUAL BACKGROUND
Calmer is now forty-one years old. (Tr. 107.) She attended two years of college, studying child care. (Tr. 143.) Calmer's occupational experience includes work as a home health aide, nursing aide, fast food worker, nursery school attendant, and factory assembly worker. (Tr. 235-36.) Since August 18, 1998, Calmer has not engaged in any substantial gainful employment. (Tr. 23.)
Calmer's Testimony
At the hearing, Calmer testified that she worked in the past as a nursing assistant and in the fast food industry. Calmer testified that her longest term of employment was two years at a plastic manufacturing plant. (Tr. 42.) She stated that her last regular job consisted of part-time work at a nursing home until her initial February 1997 injury. (Tr. 43, 45.) In March 1998, Calmer worked one week for the state revenue department as a temporary employee through Kelly Services. (Tr. 42-43.) Calmer stated that her last job was as a cashier at a truck stop for one week before she fell and reinjured her back in August 1998. (Tr. 43.) Calmer testified that she did not file for worker's compensation after the reinjury. (Tr. 43.)
Calmer testified, however, that she missed two of the five days she worked at the revenue department. She stated that, with accommodations, she could sit for the entire three and one-half hour work day on the three days she worked. (Tr. 50.)
Calmer testified that she considered her back pain to be her worst physical problem, and that her pain was not alleviated with medication. She added that bending, lifting, or standing or sitting for long periods of time is uncomfortable. She stated that she can only sit for twenty minutes, and then she must move to another chair, walk, or lie down. Calmer testified that, within the week prior to the hearing, she began sleeping with ice packs on her back at night. (Tr. 44.) Calmer testified that she weighed 375 pounds. (Tr. 55.)
Calmer testified that she has seen Mark Butler, M.D., a family practitioner and her primary care physician, for two to three years. (Tr. 44.) Calmer stated that Dr. Butler referred her in 1997 to Daniel Noble, M.D., an orthopedic surgeon, for her back problems. (Tr. 44.) Calmer testified that either Dr. Butler or Dr. Noble referred her to Madonna Rehabilitation Hospital (Tr. 45), where Raj. Kumar, M.D., a family practitioner, saw Calmer for a consultative examination that lasted about twenty to thirty minutes. She stated that Dr. Kumar weighed her and, with difficulty, took Xrays. (Tr. 63-64.)
Calmer testified that a medical doctor at Madonna Rehabilitation recommended that she obtain a sedentary job. However, Calmer stated that she could not find a sedentary job because she lacks basic skills such as typing and computer skills. (Tr. 45.) Calmer testified that although she tried telemarketing positions in 1985 and 1998, she was unsuccessful because she continually dialed wrong numbers. (Tr. 45-46.) During 1997 and 1998, Calmer received unemployment income for six to nine months. (Tr. 47.) She testified that once she found a job after her period of unemployment, her brother was killed and she was terminated for being absent from work because of his death. (Tr. 47.)
Calmer testified that she would see Dr. Butler or Dr. Noble the week after the hearing for cortisone shots. (Tr. 48.) She testified that she was taking Effexor and a generic brand of Xanax for depression suffered because of her breakup with her boyfriend and the deaths of her brother and father. (Tr. 49.) She testified that she was also taking the following medications: Darvocet every forty-six hours; "Lodine" twice daily; Ultram every four to six hours; and extra strength Tylenol. (Tr. 56.)
Calmer testified that during a typical day, she gets up at about 9:00 a.m., takes her medicine, eats breakfast, watches television, lies down, cooks while seated, does some laundry, lies down, reads and writes letters. (Tr. 51-52.) With some difficulty, she washes a few dishes and does some light vacuuming. (Tr. 54.) Calmer goes to bed between 10:00 and 10:30 p.m., but she testified that she does not fall asleep until between 2:00 and 4:00 a.m. (Tr. 53.) During this time Calmer sometimes reads, writes letters, and reads the Bible. (Tr. 53.) Calmer stated that this pattern of sleeping about four hours each night has lasted regularly for the last four or five months prior to the hearing. (Tr. 53-54.) Calmer prepares approximately half of her meals. (Tr. 52.) Calmer relies on her mother a great deal for assistance with daily activities. (Tr. 52.) Calmer drives once a week to see her counselor for depression. (Tr. 52.)
Calmer testified that she can stand for fifteen minutes, and she can walk for one or two blocks before she needs to sit down. (Tr. 54.) She experiences numbing in her right leg for no apparent reason sometimes every few days. (Tr. 54-55.) She experiences a tingling, numbing pain in her back that increases with movement. (Tr. 56.)
Calmer testified that she cannot work at a sedentary job for more than four hours per day because she must frequently stand or change positions. (Tr. 56-57.) Calmer feels that employers are unwilling to make necessary accommodations for her. (Tr. 57.)
Dorothy Stutzman's Testimony
Dorothy Stutzman, Calmer's mother, testified that although she does not work she supports Calmer, paying for her insurance and medications. (Tr. 58.) Stutzman testified that Calmer has lived with her since 1990, and therefore Stutzman has observed Calmer after her two back injuries. (Tr. 58.) Through several leading questions, Stutzman testified that after the second injury in 1998 she knows that Calmer has been in pain. Stutzman stated that she was aware of Calmer's pain because she has witnessed Calmer's crying episodes and wincing facial expressions. (Tr. 59.) Stutzman testified that Calmer takes her medication regularly. (Tr. 59.) Stutzman has observed Calmer awake during the night, stating that Calmer does not do much at home "because it hurts her." (Tr. 60.) Stutzman testified that Calmer has difficulty with or cannot do tasks such as washing dishes, making her bed, moving furniture, cooking, and doing laundry. (Tr. 60-61.) Stutzman has to assist Calmer with bathing, because Calmer cannot get herself out of the bathtub. (Tr. 62.) Stutzman testified that Calmer sometimes naps between 12:30 and 3:00 p.m. (Tr. 63.) Again through leading questions, Stutzman testified that Calmer's pain and other difficulties have been consistent since her August 1998 injury. (Tr. 63.)
Vocational Expert's Testimony
Testimony was also heard from vocational expert ("VE") Barbara Boehm, under contract with the Social Security Administration ("SSA"). Boehm described Calmer's vocational profile as follows: a "younger person, a high school graduate with two years of college which is high school education and above." (Tr. 65.) Boehm identified Calmer's past work in Exhibit 14E (Tr. 65, 235-36), and opined that Calmer could perform the full range of sedentary activities (Tr. 67-68). However, Boehm testified that, if Calmer were considered credible, she would be unable to perform even sedentary work. (TR 68.)
Boehm's name was misspelled in the transcript as "Bain." (Tr. 64.)
Barbara Boehm's curriculum vitae is in the record. (Tr. 99-100.)
Documentary Evidence Before the ALJ
In addition to oral testimony, the ALJ considered medical evidence stemming from Calmer's initial back injury in February 1997 and her second injury suffered on August 18, 1998. These records include counseling and rehabilitation reports and reports from Drs. Noble, Butler, and Kumar. (Tr. 193-234, 245-86, 292-324, 335-37, 344-64.) On September 15, 1997, Kathryn Hajj, M.D. examined Calmer at the Madonna Rehabilitation Hospital on an outpatient basis. (Tr. 271-73.) Dr. Hajj noted that Calmer showed no "loss of range [of motion] secondary to pain," but that "limitation was noted due to . . . morbid obesity." (Tr. 272.) At that time, Calmer was about five feet, four inches tall, and she weighed approximately 340 pounds. (Tr. 272.)
Calmer attended physical therapy from September 22, 1997 until she was discharged on December 19, 1997. (Tr. 263-64.) While she had slight restriction in lower extremity strength, her range of motion was normal. (Tr. 263.) Calmer cancelled her remaining appointments, stating that she would return after seeing her doctor. However, Calmer failed to return for therapy. (Tr. 264.)
On February 12, 1998, Dr. Hajj again examined Calmer in order to assign her a permanent impairment rating. (Tr. 256-60.) Calmer complained that she suffered from pain and difficulty in standing, walking, bending and stooping. (Tr. 257-58.) Calmer told Dr. Hajj that she could not lift more than twenty-five pounds. (Tr. 257.) Upon examination, Dr. Hajj found that Calmer's back was not tender and that she had full strength and normal reflexes. (Tr. 259.) Although Calmer's range of motion was limited in her lower back, she could flex to eighty degrees, extend to twenty degrees, and laterally bend and rotate thirty degrees in each direction. (Tr. 259.) Dr. Hajj opined that Calmer had reached maximum medical improvement, and that she suffered a five percent impairment of her whole person. (Tr. 259.) Dr. Hajj cautioned Calmer to restrict bending and stooping in future work situations. (Tr. 260.)
On August 18, 1998, the alleged onset of Calmer's disability, Calmer told Dr. Butler that she had fallen the previous night at work and injured herself. (Tr. 295, 339.) Although Calmer complained of pain, Dr. Butler noted normal range of motion, negative straight leg raise, normal sensation, and no loss of muscle strength. (Tr. 295.) During Calmer's next visit to Dr. Butler, she did not complain of any back pain. Rather, Calmer complained of abdominal pain. (Tr. 294.) Calmer never complained of back pain during any future visits with Dr. Butler, even after falling on ice. (Tr. 294, 356-59.)
On March 9, 1999, Dr. Kumar examined Calmer on a consultative basis. (Tr. 335-37, 340.) Calmer told Dr. Kumar that after her February 1997 injury she returned to work at a truck stop, but that she was unable to work after August 1998 after falling on a wet floor. (Tr. 335.) Dr. Kumar noted that Calmer walked normally and without a limp. She had a "diffuse" tenderness in her lower spine. (Tr. 336.) Regarding her range of motion, Dr. Kumar noted that she could bend down until her fingertips were about six inches from her toes. Given Calmer's size, Dr. Kumar considered her bending ability normal. Calmer could laterally bend and extend her back to twenty degrees, and she could rotate her trunk thirty degrees. (Tr. 336.)
In a letter dated June 24, 1999, Dr. Noble stated that he could not render an opinion as to whether Calmer's obesity caused Calmer's disability. (Tr. 338, 367.) However, Dr. Noble thought that Calmer could perform "normal work duties in at least a medium category." (Tr. 367.)
THE ALJ'S DECISION
The ALJ found that Calmer was found not "disabled" pursuant to sections 216(i) and 223 of the Act based on her application for disability benefits or pursuant to sections 1602 and 1614(a)(3)(A) of the Act based on her application for SSI benefits.
The ALJ followed the five-step sequential evaluation process set out in 20 C.F.R. § 416.1520 and 416.920 to determine whether Calmer was disabled, considering:
work activity; the severity of any medically determinable impairments; whether Calmer met the listings; and residual functional capacity with regard to the ability to perform past relevant work or other work that exists in significant numbers in the regional and national economies. This latter step requires an assessment of Calmer's age, education and past work experience.
(Tr. 23-29.) Following this analysis, the ALJ found that Calmer is not disabled. (Tr. 30.)
STANDARD OF REVIEW
In reviewing an ALJ's decision to deny disability benefits, a district court does not reweigh evidence or the credibility of witnesses or revisit issues de novo. Bates v. Chater, 54 F.3d 529, 532 (8th Cir. 1995); Harris v. Shalala, 45 F.3d 1190, 1193 (8th Cir. 1995). Rather, the district court's role under 42 U.S.C. § 405(g) is limited to determining whether substantial evidence in the record as a whole supports the Commissioner's decision and, if so, to affirming that decision. Harris, 45 F.3d at 1193.
"Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept it as adequate to support a decision." Holmstrom v. Massanari, 270 F.3d 715, 720 (8th Cir. 2001). The Court must consider evidence that both detracts from, as well as supports, the Commissioner's decision. Id. As long as substantial evidence supports the Commissioner's decision, that decision may not be reversed merely because substantial evidence would also support a different conclusion or because a district court would decide the case differently. McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000); Harris, 45 F.3d at 1193.
DISCUSSION
Calmer argues that the ALJ's decision is erroneous for the following reasons: 1) the ALJ failed to explain the determination that Calmer does not meet the requirements of the listings; 2) substantial evidence does not support the finding that Calmer does not meet the listings; and 3) the ALJ erred in finding that Calmer's testimony was not credible. In conjunction with the second issue, Calmer argues that the listings in effect before October 25, 1999 applied to her case.
Substantial Evidence Fails to Support Finding that Calmer Does Not Meet Listings
In conjunction with Calmer's discussion of the second issue in her brief, she argues that although the "obesity" Listing 9.09 was deleted on October 25, 1999, the listing was still binding on her case. Brief of Plaintiff at 7.
The Eighth Circuit Court of Appeals recently addressed the applicability of Listing 9.09 to a pending case. Ingram v. Barnhart, No. 01-3824, 2002 WL 31011123 (8th Cir. Sept. 10, 2002). In Ingram's first appeal to the Eighth Circuit in 1997, the case was remanded to the ALJ, because the ALJ erred in finding that Ingram was not disabled based on her obesity. Id. at *1. On remand in February 1998, the ALJ again found that Ingram was not disabled. While Ingram's appeal of the ALJ's post-remand decision was pending before the Appeals Council, Listing 9.09 was deleted, and clarifying ruling 00-3p was issued. Seven months after the clarifying ruling, the Appeals Council denied Ingram's request for review, failing to state whether it applied Listing 9.09 or the new listings. Id. Ingram then appealed to the district court. The Commissioner filed a motion to remand Ingram's appeal to the agency to determine whether Ingram satisfied Listing 9.09 when the listing was still in effect. Ingram, however, argued that an outright award under Listing 9.09 was appropriate. The district court determined that Ingram's appeal was no longer "germane" because ruling 00-3p showed the Commissioner's intent to apply the new listings to Ingram's pending claims. The district court remanded the case to the ALJ to apply the amended listings. Ingram appealed. Id. at *2.
The Eighth Circuit stated the following:
Generally, if an agency makes a policy change during the pendency of a claimant's appeal, the reviewing court should remand for the agency to determine whether the new policy affects its prior decision. See NLRB v. Food Store Employees Union, 417 U.S. 1, 10 n. 10 (1974) (stating that an agency should be given the initial opportunity to decide whether a new policy governs in a pending appeal). Rather than adopting such a course of action, however, the district court determined for itself that the new obesity regulations applied to Ingram's claims, even though the Social Security Administration had never taken that position in the case, and the Commissioner had not asked the court to remand based on the intervening rule change.
It was improper for the district court to rely on Social Security Ruling 00-3p as an expression of the agency's intent to apply the new rules to Ingram's claims.Id.
The Ingram case differs from Calmer's case in that Ingram obtained a decision in her favor when she first came before the Eighth Circuit. In part because of this favorable decision, the Eighth Circuit found that the equitable considerations differ from a typical disability appeal that is pending review. However, aside from this difference , the Eighth Circuit indicated that "[n]ormally," it would have remanded the case to the ALJ for a decision as to whether the amended listings apply. Id. at *3.
The Eighth Circuit also considered the length of time that the Ingram case had been pending as well as the Commissioner's failure to move for a remand or take other action to seek out evidence as to the applicability of the new listings. The Eighth Circuit expressed its displeasure that the Commissioner caused Ingram's claims to "languish before the Appeals Council for almost a year after the rule change." Id. The Eighth Circuit concluded that "because the Commissioner's present assertion that the new obesity regulations govern Ingram's claims is untimely and unfair given the history of this case, we conclude the Commissioner has waived any right to determine whether Ingram is disabled under the new regulations." Id.
In deciding Calmer's case which was pending when the changes were made in the listings regarding obesity, the ALJ stated only that Calmer's "severe impairments do not meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4." (Tr. 30.) The ALJ did not state whether the decision denying benefits was based on the listings as they existed before or after the anticipated changes relating to obesity and Listing 9.09. (Tr. 30.) Similarly, the Appeals Council issued a form order that also failed to indicate which set of listings were applied to Calmer's case. (Tr. 5-6.) Therefore, this Court finds it prudent to follow the Eighth Circuit's directive expressed in Ingram because: the SSA made a pertinent policy change during the pendency of Calmer's appeal; remand was not requested by the Commissioner pursuant to the policy change; and neither the ALJ nor the Appeals Council addressed the applicability, if any, of the changes in the listings that are highly relevant to Calmer's case.
Therefore, the Court finds that the Commissioner's decision denying benefits is not supported by substantial evidence. The Court will reverse the Commissioner's decision and remand this case to the ALJ pursuant to sentence four of 42 U.S.C. § 405(g) to determine whether the listings in effect after October 25, 1999 apply to Calmer's case. See Ingram, 2002 WL 31011123, at *2. The ALJ is directed to hold another hearing, receive any additional relevant evidence, and issue a new opinion.
CONCLUSION
For the reasons discussed, the Court concludes that the Secretary's decision is not based on substantial evidence on the record as a whole. The Court is unable to determine whether an award of benefits is appropriate, based on the record. Callison v. Callahan, 985 F. Supp. 1182, 1188 (D.Neb. 1997). The case will be remanded to the ALJ pursuant to sentence four of 42 U.S.C. § 405(g) for reconsideration. Specifically, the ALJ shall determine whether the 20 C.F.R. Part 404, subpart P, appendix I, also known as the "listings," that existed before October 25, 1999 apply in Calmer's case, or whether the listings after that date apply. The ALJ shall hold another hearing, receive any relevant additional evidence, and issue a new opinion. In view of the Court's decision, the remaining issues raised in this appeal need not be addressed.
IT IS ORDERED that judgment will be entered by separate document reversing the final decision appealed from pursuant to sentence four of 42 U.S.C. § 405(g) and remanding this case for reconsideration and further proceedings consistent with this Memorandum and Order.