Opinion
Civil No. 03-4124 ADM/SRN.
August 27, 2004
Fay E. Fishman, Esq., Peterson Fishman P.L.L.P., Minneapolis, MN, on behalf of Plaintiff.
Lonnie F. Bryan, Assistant United States Attorney, Minneapolis, MN, on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Defendant Social Security Commissioner Jo Anne B. Barnhart ("Defendant") denied Plaintiff Tammi R. Delgehausen's ("Plaintiff") application for disability benefits after determining that Plaintiff was not disabled under the Social Security Act ("Act"). 42 U.S.C. §§ 416(i) and 423. This matter is now before the undersigned United States District Judge pursuant to Defendant's Objections to the Magistrate Judge's Report and Recommendation ("Objections") [Docket No. 14]. The Report and Recommendation ("RR") of Magistrate Judge Susan R. Nelson [Docket No. 13] recommends that: (1) Plaintiff's Motion for Summary Judgment [Docket No. 8] be granted; (2) Defendant's Motion for Summary Judgment [Docket No. 10] be denied; (3) the ALJ's decision denying benefits be reversed; and (4) the case be remanded and an award of benefits be granted to Plaintiff. For the reasons set forth below, the RR is adopted. The factual and procedural background of this case is set forth in the RR and is incorporated by reference for the purposes of Defendant's present Objections.
II. DISCUSSION
The district court must undertake an independent, de novo review of those portions of the RR to which a party objects, and "may accept, reject, or modify, in whole or part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); see also D. Minn. LR 72.1(c)(2).
Defendant objects to the RR's recommendation that the case be remanded for an award of benefits to Plaintiff. Objections at 1, 3. Defendant argues that the evidence in the record does not overwhelmingly support a finding of disability and thus a judicial award of benefits is improper. Id. at 2. Instead, Defendant contends that the case should be remanded to the ALJ for further consideration of conflicting evidence regarding Plaintiff's condition. Id. at 3.
A. Standard of Review
When the Commissioner improperly denies a plaintiff benefits, the reviewing court normally remands the case to the ALJ for further administrative proceedings. Ingram v. Barnhart, 303 F.3d 890, 895 (8th Cir. 2002) (citation omitted). However, courts may remand and order an award of benefits if the evidence overwhelmingly supports a finding of disability. Id.; see Buckner v. Apfel, 213 F.3d 1006, 1011 (concluding that the court may reverse the Commissioner's denial and award benefits outright if overwhelming evidence proves the plaintiff is disabled). In reviewing the administrative record for "overwhelming evidence," courts should consider the following factors: (1) the ALJ's credibility findings; (2) the plaintiff's vocational factors; (3) the medical evidence from treating and consulting physicians; (4) the plaintiff's subjective complaints relating to exertional and nonexertional activities and impairments; (5) any corroboration by third parties of the plaintiff's impairments; and (6) the testimony of vocational experts, when required, based upon a proper hypothetical question setting forth the plaintiff's impairments.See Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989) (internal quotation omitted).
B. Judicial Award of Benefits
Overwhelming evidence supports a finding of disability in this case.
1. The ALJ's Credibility Findings and Plaintiff's Subjective Complaints
First, the ALJ improperly discounted Plaintiff's credibility concerning her subjective assertions of pain and impairment.See Shelton v. Chater, 87 F.3d 992, 995 (8th Cir. 1996);Robinson v. Sullivan, 956 F.2d 836, 839 (8th Cir. 1992) (holding that when discrediting a claimant's complaints of pain, the ALJ must expressly "set forth on the record inconsistencies that lead to this conclusion"). While the ALJ determined that Plaintiff was not credible due to "significant inconsistencies in the record as a whole," the record actually supports Plaintiff's credibility because the ALJ misstated the extent of Plaintiff's daily activities. R. at 21, 24 [Docket No. 7]. For example, prior to her impairment, Plaintiff was self-supporting and completely independent. R. at 162. Since the onset of her fatigue, however, Plaintiff frequently relies on family to care for her and possesses a limited ability to perform household tasks. R. at 48, 162, 167, 168. Additionally, uncontroverted evidence shows that Plaintiff no longer participates in outdoor activities and social gatherings as she previously did. R. at 35-36, 161-65. Thus, the record as a whole supports Plaintiff's assertion that she is disabled within the meaning of the Act. See Ross v. Apfel, 218 F.3d 844, 849 (8th Cir. 2000) (stating that the ability to sporadically perform light activities does not mean that the claimant can perform full-time competitive work).
The ALJ discredited Plaintiff's claims further because of her "generally unpersuasive appearance and demeanor" at the hearing. R. at 22. The ALJ may consider a claimant's demeanor in discounting her subjective complaints and credibility, but must consider other factors as well. Ply v. Massanari, 251 F.3d 777, 779 (8th Cir. 2001); Muncy v. Apfel, 247 F.3d 728, 736 (8th Cir. 2001). Consequently, the ALJ's comments about Plaintiff's appearance at the hearing do not support his credibility finding absent other evidence of inconsistency. Additionally, the Plaintiff's favorable work history prior to her illness enhances her credibility, contrary to the ALJ's findings. See Nunn v. Heckler, 732 F.2d 645, 648 (8th Cir. 1984); R. at 123.
2. The ALJ's Analysis of Treating Physician's Opinion
The ALJ also improperly disregarded the opinion of Plaintiff's treating physician and instead considered the testimony of consulting physicians who had not examined Plaintiff. R. at 18-19. The ALJ should give a treating provider's opinion controlling weight if it is "supported by acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record." Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004); see also 20 C.F.R. § 404.1527(d)(2). The ALJ may discount a treating physician's opinion and place greater emphasis on testimony from a consulting physician if the latter is "supported by better or more thorough medical evidence [or if] a treating physician renders inconsistent opinions that undermine the credibility of such opinions." Anderson v. Barnhart, 344 F.3d 809, 813 (8th Cir. 2003).
The ALJ discounted the opinion of Dr. Jonathan Katz, Plaintiff's treating physician, after concluding the following: (1) Dr. Katz did not conduct physical examinations or diagnostic tests to support the work restrictions he imposed for Plaintiff; 2) Dr. Katz is not a mental health expert or specialist in chronic fatigue syndrome; and 3) Dr. Katz based his opinion primarily on Plaintiff's self-reports. R. at 19. Despite these findings, the ALJ should have given Dr. Katz's testimony controlling weight because he failed to note any inconsistencies in the medical opinion, and did not find that the consulting physicians' opinions were supported by better or more thorough medical evidence. Anderson, 344 F.3d at 813. Therefore, the ALJ erroneously relied on the consulting physicians' opinions as substantial evidence. Id.; see also Kelley v. Callahan, 133 F.3d 583, 589 (holding that the opinion of a consulting physician who has limited contact with the claimant does not normally constitute substantial evidence).
Moreover, the ALJ's proffered reasons for giving the consulting physicians' opinions controlling weight are unavailing. First, a lack of diagnostic tests does not automatically undermine Dr. Katz's conclusion that Plaintiff has chronic fatigue syndrome because, as noted in the Commissioner's own policy concerning the disease, sufferers often have normal test results. See Social Security Ruling 99-2p, 64 Fed. Reg. 23,380, 23,382 n. 4 (Apr. 30, 1999). Additionally, the consulting physicians did not contradict Dr. Katz's diagnosis, but merely stated that Plaintiff's symptoms required "medium" work restrictions. See R. at 334-35, 338. Second, because the record does not contain testimony from a specialist that contradicts Dr. Katz's assessment, Dr. Katz's lack of expertise is irrelevant. See Kelley, 133 F.3d at 589. Finally, Dr. Katz reasonably relied on Plaintiff's self-reports in evaluating her chronic fatigue syndrome because determining the severity of an individual's fatigue often eludes objective measurement. See Rose v. Shalala, 34 F.3d 13, 19 (1st Cir. 1994). Further, none of the medical professionals who treated Plaintiff suggested the she was malingering about her condition. Therefore, the ALJ erroneously failed to give the treating physician's disability opinion and restrictions controlling weight. Anderson, 344 F.3d at 813.
3. The ALJ's Reliance on the Vocational Expert's Opinion
Finally, in denying Plaintiff benefits, the ALJ considered testimony from a vocational expert ("VE") who suggested that Plaintiff could perform work in the national economy. R. at 22-23, 50-52. However, the VE based his testimony on hypothetical scenarios posed by the ALJ which did not include all of Plaintiff's impairments, particularly her fatigue-related limitations. See Harvey v. Barnhart, 368 F.3d 1013, 1016-17 (8th Cir. 2004) ("[F]or a vocational expert's opinion to be relevant, an ALJ must accurately characterize a claimant's medical conditions in hypothetical questions posed to the vocational expert"). Therefore, the ALJ improperly relied on the VE's testimony in denying Plaintiff disability benefits. Id.
4. Summary of Evidence Supporting an Award of Benefits
Overwhelming evidence supports a finding of disability. See Ingram, 303 F.3d at 895. The ALJ should not have discredited Plaintiff's subjective complaints of pain and fatigue, and her treating physician's opinion is entitled to controlling weight.Anderson, 344 F.3d at 813; Shelton, 87 F.3d at 995. Further, once presented with a complete description of Plaintiff's impairments, the VE determined that Plaintiff cannot perform work within the national economy given the restrictions her treating physician imposed. R. at 23, 53-55. Therefore, the case is remanded for an award of benefits to Plaintiff.
III. CONCLUSION
Based upon the foregoing, and all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that:1. The Defendant's Objections [Docket No. 14] are DENIED;
2. The RR [Docket No. 13] is ADOPTED;
3. Plaintiff's Motion for Summary Judgment [Docket No. 8] is GRANTED;
4. Defendant's Motion for Summary Judgment [Docket No. 10] is DENIED; and
5. The Commissioner's decision is REVERSED. The case is REMANDED for an award of benefits to Plaintiff.