Opinion
No. C00-0162
July 24, 2001
ORDER
This matter comes before the court pursuant to briefs on the merits of this application for disability insurance benefits. The parties consented to the exercise of jurisdiction by a United States Magistrate Judge. For the reasons set forth below, the court finds in favor of the plaintiff and remands for an award of benefits.
PROCEDURAL BACKGROUND
Plaintiff Clyde Davis applied for Title II Social Security benefits and Title XVI supplemental security income benefits on February 9, 1994 alleging an inability to work since January 6, 1994 due to head injuries. His application was originally denied and denied again on reconsideration. A hearing before Administrative Law Judge (ALJ) John P. Johnson was held December 13, 1995. In an opinion dated March 29, 1996, the ALJ denied benefits. The Appeals Council remanded with instructions on May 7, 1998. A second hearing was held before ALJ Johnson on December 7, 1999. In an opinion dated January 28, 2000, the ALJ again denied benefits. The Appeals Council denied review on September 25, 2000. This action for judicial review was timely filed on October 11, 2000.
FACTUAL BACKGROUND
The plaintiff was born on November 20, 1953. (Tr. 239). He is a high school graduate and has two years of college. (Tr. 268). He has past relevant work as a janitor and janitorial supervisor. (Tr. 269). The plaintiff was beaten severely in the head with a baseball bat in January 1994. (Tr. 85). He spent three weeks in a coma following the beating. (Tr. 86). While he was in a coma, he had a blood clot which caused him to have a stroke and left him partially paralyzed on his left side. (Tr. 86). Following the injury, the plaintiff was diagnosed by James R. LaMorgese, M.D., with the following: closed head injury with acute epidural hematoma with herniation; basal ganglia infarction secondary to herniation on the right; respiratory failure secondary to head injury; probable aspiration pneumonitis; status post craniotomy with evacuation of epidural hematoma; status post tracheostomy; and status post gastrojejunostomy. (Tr. 302). In addition, he had rib fractures and pelvic trauma. (Tr. 369). After on-going treatment in a rehabilitation facility, orientation, repetition and memory had improved, though he still had memory, calculations and constructional ability difficulties. (Tr. 543). In May 1994, the plaintiff had numerous physical residuals including numbness in the face, severe weakness in the left arm and leg, and a neurogenic bladder. (Tr. 543). His medical records also indicate voice and visual problems.
On May 16, 1994, Dr. LaMorgese, plaintiff's neurosurgeon, stated that plaintiff would "continue to have significant left hemiparesis as a permanent residual of his injury." He noted that the plaintiff could do a sedentary-type position, but that he would have to be restricted to using only his right hand. On July 25, 1994, Dr. LaMorgese stated that the plaintiff was disabled as a result of his injuries. (Tr. 467). In a December 2, 1994 letter, Dr. LaMorgese noted that plaintiff wore a splint on his left foot and leg to help him ambulate, and that he had a significant impairment of the left arm and hand as a result of the hemiparesis. He stated that the plaintiff was disabled from all gainful employment. (Tr. 501).
Teri S. Formanek, M.D., treated plaintiff's left hand. (Tr. 503). Dr. Formanek stated plaintiff had left hemiplegia with myositis ossificans of the left elbow. He also had shoulder pain which was a direct result of the injury. (Tr. 503). Dr. Formanek stated:
"His left arm is of minimal use to him in any daily tasks and this will be a permanent situation without expected improvement. I would concur with Dr. LaMorgese's opinion that he is disabled from gainful employment because of his neurologic injuries."
Ellen M. Ballard, M.D., treated plaintiff during his rehabilitation following the 1994 head injury. On August 25, 1994, she stated that the plaintiff was permanently disabled. (Tr. 621).
Winthrop S. Risk, M.D., another treating physician, wrote a letter to disability services on August 4, 1998. Dr. Risk concluded that the plaintiff "is totally disabled for any type of commercial employment." (Tr. 666).
Albert R. Coates, M.D., treated the plaintiff for impingement syndrome in his shoulder. Dr. Coates stated that plaintiff had significant inability for activities that involve lifting, pulling, and pushing, and that these impairments were permanent. (Tr. 647).
The plaintiff was treated at the Cedar Centre Psychiatric Group by Charles G. Wellso, M.D. In a June 14, 1999 evaluation, Dr. Wellso diagnosed him a probable mental disorder NOS due to a general medical problem, traumatic head injury and left hemiparesis. He noted that plaintiff had a history of substance abuse, including cocaine and marijuana. His GAF score was 60. Dr. Wellso recommended that a plaintiff get a psychiatric consultation and then possibly begin antidepressants. (Tr. 756-59).
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 in 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 physical residual functional 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 determined that the plaintiff had not engaged in substantial gainful employment since January 6, 1994. At the second step, the ALJ determined the plaintiff had the following impairments:
status post head injury with craniotomy to evacuate the hematoma with left hemiparesis, a history of neurogenic bladder, a history of voice disturbance, left homonymous hemianopsia, a history of mental function disturbance, a medically determinable impairment with complaints of pain in his right shoulder, a disc protrusion at L4-5 which impinges on the nerve root, a small disc protrusion at L3-4, L4-5 radiculopathy, and a history of an acute cervical strain status post a motor vehicle accident which occurred on July 3, 1996 . . . .
(Tr. 34). At the third step, the ALJ determined that the Plaintiff's impairments were not equivalent to one of the listed impairments. At the fourth step, the ALJ determined the plaintiff had the residual functional capacity (RFC) to perform the physical exertional and nonexertional requirements of work except for lifting up to 20 pounds occasionally and ten pounds frequently with his right hand only. He can stand for about 30 minutes at a time and can walk for one or two blocks at a time. He cannot repetitively bend, stoop, twist, squat, kneel, crawl, or climb. He cannot push or pull, operate hand controls, grip, or perform gross or fine manipulation with his left upper extremity. He cannot perform repetitive work with his left upper extremity above shoulder level. He cannot operate foot controls with his left lower extremity. He cannot work at heights or around moving machinery. He cannot perform work which requires full peripheral vision. He cannot perform very complex-technical work, but can perform more than constant, very close, attention to detail. He requires occasional supervision and cannot work at more than a regular pace. He can tolerate no more than a mild to moderate amount of work-related stress. (Tr. 35).
The ALJ determined that the plaintiff is unable to perform his past relevant work; however, based on this RFC, the ALJ determined that the plaintiff could perform a full range of light work, and that jobs exist in the national economy which the plaintiff could perform, specially telephone solicitor and security guard.
Opinion of Treating Physician
The government does not contend that the decision of the ALJ was based upon substantial evidence. The government, instead, argues the case should be remanded to correct legal errors. Specifically, the ALJ discredited the opinions of plaintiff's treating physicians Dr. LaMorgese, Dr. Formanek, and Dr. Risk. In discrediting these opinions, the ALJ stated the ultimate issue of disability rests with the commissioner and that the opinions of the treating physicians are not given controlling weight.
"A treating physician's opinion should not ordinarily be disregarded and is entitled to substantial weight. A treating physician's opinion regarding an applicant's impairment will be granted controlling weight, provided the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record." Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000) (citation omitted). The regulations require the ALJ to give reasons for giving weight to or rejecting the statements of a treating physician. See 20 C.F.R. § 404.1527(d)(2). "The ALJ may discount or disregard such an opinion if other medical assessments are supported by superior medical evidence, or if the treating physician has offered inconsistent opinions." Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001).
The plaintiff has an extensive medical history dating back to his head injury in 1994. The plaintiff's treating physicians are all in agreement that the plaintiff is totally disabled and is unable to work. The ALJ did not give reasons for discounting the opinions of the treating physicians. The vocational expert testimony at the hearing indicates, based on the extensiveness of plaintiff's limitations, that the plaintiff is totally disabled and is unable to perform jobs in the national economy.
IT IS ORDERED
This matter is remanded to the Commissioner of Social Security for an award of benefits.