Opinion
Civil Action No. 98-3034
Filed: August 12, 1999
Albert G. Weiss, Esq., Collingswood, N.J., Attorney for Plaintiff.
Faith S. Hochberg, United States Attorney, By: Peter G. O'Malley, Assistant United States Attorney, United States Attorney's Office, Newark, N.J., Attorney for Defendant.
OPINION
This matter comes before the Court pursuant to section 205(g) of the Social Security Act ("Act"), as amended, 42 U.S.C. § 405(g), to review the final decision of the Commissioner of the Social Security Administration denying plaintiff's claim for Disability Insurance benefits under Title II of the Act.
Plaintiff, Jeffrey Denish, alleges that the Commissioner's decision denying plaintiff benefits was erroneous. Plaintiff raises numerous arguments: that his ailments meet or equal a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1; that the Administrative Law Judge ("ALJ") improperly rejected plaintiff's allegations regarding his pain; that the ALJ improperly declined to give plaintiff's treating physician's opinions controlling weight; that the ALJ erroneously failed to consider plaintiff's allegations of pain in his opinion; and that the Appeals Council did not give the report of Dr. Sidney Tobias proper weight. Because the ALJ's opinion lacked sufficient discussion during the step four residual functional capacity ("RFC") analysis, this court can not agree that the ALJ's findings regarding plaintiff's ability to perform medium level work were supported by substantial evidence, and the Commissioner's decision is vacated and remanded for further consideration consistent with the views set forth herein.
I. BACKGROUND
A. Procedural History
Plaintiff, Jeffrey Denish, born November 26, 1955 (R. 64), applied for Social Security Disability benefits on December 7, 1994, alleging that he became disabled on or about February 13, 1994. Plaintiff's application for Disability Insurance Benefits under Title II was denied initially and upon reconsideration.
On May 8, 1996, plaintiff timely filed a request for an administrative hearing to be held before an ALJ to review the denial of disability insurance benefits. (R. 94.) On May 12, 1997, a hearing was held before ALJ Daniel G. Healy. (R. 30.) On July 24, 1997, the ALJ issued a decision denying plaintiff benefits (R. 14-19). In this decision, the ALJ found that claimant was able to perform medium level work and could therefore return to his past relevant work running a videocassette distribution business. (R. 18.) On September 15, 1997, plaintiff filed a Request for Review of the ALJ's decision. (R. 7.) On May 7, 1998, the Appeals Council denied plaintiff's request for review (R. 4), and the ALJ's Opinion became the final decision of the Commissioner. Plaintiff then timely commenced this action for judicial review of the Commissioner's final decision.
B. Plaintiff's Testimony
At his hearing on May 12, 1997 before Judge Healy, an Administrative Law Judge ("ALJ") for the SSA, plaintiff testified that he suffers occasional pain down his right arm and numbness in his fingers, and that he cannot lift objects that are "too heavy." (R. 33.) Plaintiff stated that he has not worked at all since approximately February of 1994 because he "just couldn't do anything" any more (R. 35-36), that prior to February 1994 he was self-employed, selling audio and video cassettes, a job which required lifting items of up to eighty pounds, but that he can no longer perform this job (id.), and that he is on a "lot of" medication (R. 37), including medication for his headaches. (R. 38.) Plaintiff stated that he sees Dr. Pettinelli approximately every two months, and that the last time he saw Dr. Pettinelli, the doctor told him to continue to walking around the yard and doing stretching exercises. (R. 39-40, 54.) Plaintiff further stated that prior to working in music and video distribution, he worked as a limousine driver, but he would be currently unable to perform this work because it is uncomfortable for him to drive. (R. 52.) However, plaintiff did state that he drives a car approximately two times per week. (R. 34.)
Plaintiff testified about his typical daily activities at the time of the hearing. He testified that he feeds and dresses himself, does some cooking, but does not wash dishes because of the bending required. (R. 41.) He stated that he cares for his two daughters (then thirteen months and two and a half years old) while his wife is at work, including cooking for them, walking them around the yard and occasionally changing diapers. (R. 42-43.) He stated that he does not do any house cleaning, but occasionally does grocery shopping and helps with laundry. (R. 41-42.) Plaintiff further testified that he used to play tennis frequently, but has not done so since 1991, and that he used to golf, but has not played golf except for in his yard since 1994. (R. 53-55.)
Plaintiff further testified that he has pain in his lower back going down his legs, neck and arms (R. 37), that he suffers headaches on most days and constantly suffers burning pain in his neck and from his hip down through his legs (R. 37), and that he suffers from pain down his right arm. (R. 38.) Plaintiff stated that he suffers from cluster migraine headaches, regular migraine headaches, and other headaches "[a]ll the time" (R. 38, 40), that there is no effective medicine for his headaches, and that he must occasionally lie down to alleviate them. (Id.).
Plaintiff testified that the medications he takes (according to Dr. Pettinelli's instructions) make him tired and drowsy, but do not cause nausea or stomach pain (R. 38); that these medications help with some of his ailments, but not his headaches (R. 39); that he is not supposed to, and usually does not, operate a motor vehicle after taking his pain medication or muscle relaxants (id. at 47); that he has attempted to quit using medication, but was in too much pain to do so (id. at 52); that he can sit for between five and fifteen minutes, stand for approximately five minutes, and walk around the yard two or three times before feeling pain (id. at 53); and that "pretty much anything" (including the sitting too long or standing) that he does makes his back pain worse. (Id. at 45.)
Plaintiff discussed his medical history, including three back surgeries and a 1992 neck surgery following an automobile accident. He stated that it was difficult to work after the neck surgery, but that he became unable to continue working in late 1993 or 1994, prior to his most recent back surgery, which temporarily made plaintiff feel better and more stable. (Id. at 49-50.)
Plaintiff testified that he was able to continue work following his 1991 neck surgery, but that it was difficult to do so (R. 49); that he became unable to continue working near the end of 1993 or the beginning of 1994 (R. 49); that at that time, he could not lift anything, could hardly stand, and experienced constant pain going down his legs (R. 49); and that following the third back surgery (performed by Dr. Balderston in 1994), he initially felt better and more stable, but that his pain has worsening ever since. (R. 50.)
C. Medical Evidence
The record contains medical reports prepared by the West Jersey Health System relating to a CAT scan of plaintiff's lumbar spine and a lumbar myelogram performed on April 15, 1994. These reports diagnosed plaintiff with lumbar canal stenosis, arachnoditis, a complete block of L4-5 of the lumbosacral spine, degeneration of both zygapophyseal joints, and grade I to grade II spondylolisthesis. (R. 116-19.) The reports concluded that "[t]he patient tolerated the procedure well and was transferred from the department in good condition." (R. 119.)
Plaintiff stayed at Thomas Jefferson University Hospital from May 26, 1994 through June 2, 1994, following a spinal operation. (R. 120.) The final diagnosis was spondylosis of L4-5 and L5-S1. (Id.). Dr. Richard Balderston performed the operations. The discharge instructions permitted plaintiff to shower, climb stairs, perform light exercise, and resume passive sexual activity, but did not permit him to lift anything, take baths, do heavy housework or drive a car. (Id. at 122.)
Dr. Balderston's consultation report, dated April 27, 1994, stated that claimant had begun to feel severe pain in his back accompanied by numbness in both legs approximately eight weeks prior to their consultation. (R. 135.) The report further stated that ninety percent of the pain was in claimant's back, with only mild pain in the legs, that claimant could not walk without a cane, but that "his general health is otherwise good." (Id.). Dr. Balderston found upon radiographic examination that plaintiff suffered from "a complete block on myelogram with a spondylolisthesis at L4-5 and at L5-S1," and diagnosed plaintiff with spondylolisthesis with progressive spinal stenosis (narrowing or stricture of the spinal canal) and a complete block on the myelogram. (Id.).
The record also contains Dr. Balderston's June 28, 1994 progress notes following plaintiff's May 26, 1994 lumbar laminectomy. (Id. at 137). The notes state that "[plaintiff] is currently ambulating four to six miles daily" (id.), that plaintiff was taking "Tylenol #3" for the post-operative pain (id.), that plaintiff may sit, ride in, and/or operate an automobile "as tolerated" (id.), that he should avoid lifting over ten pounds (id.), and that plaintiff was totally disabled from any and all employment. (Id.). The August 17, 1994 progress notes stated that plaintiff continued to have a "good result" with significantly diminished pain in his back and legs. (Id. at 138). Dr. Balderston further stated that X-rays indicated excellent position of the bone fusion and instrumentation (id.), and that plaintiff could begin to wean away from his knee brace. (Id.).
Dr. Balderston's October 12, 1994 notes stated that plaintiff continued to "do well with significantly diminished back pain" five months after the surgery. (Id. at 139). He further stated that he had prescribed plaintiff medication for physical therapy aimed at increasing plaintiff's range of and strength of muscular motion.
Dr. Balderston's final progress report, prepared on January 13, 1995, stated that plaintiff "continues to have a good result. His back and leg pain have significantly improved." (Id. at 140). Dr. Balderston further stated that plaintiff had completed physical therapy and would be recommended some further low back exercises, and that plaintiff could resume playing golf, but only with certain clubs (no woods or low irons). (Id.).
Dr. Young B. Lee examined claimant several months thereafter, on May 4, 1995. Dr. Lee reported that claimant drove himself to the examination. (R. 141.) Dr. Lee summarized plaintiff's maladies, including spondylolisthesis since birth, an automobile accident and four back surgeries. (R. 141-42.) He stated that plaintiff reported suffering from occasional shoulder and neck pain, constant stabbing pain in both sides of the lumbosacral area and on the buttocks, occasional numbness in the heels of the feet and toes, and constant headaches. (R. 141.)
Dr. Lee also reported plaintiff's recounting of his daily activities. Plaintiff stated that he looks after his seven month old baby the entire day while his wife is away (but that he could not have lifted the baby prior to his most recent operation) (id. at 142); that he cooks, operates a motor vehicle, goes shopping about ten times a month and walks to the supermarket two blocks away. (Id.).
Upon physical examination of the plaintiff, Dr. Lee reported that "[plaintiff] is well-developed and well-nourished. No acute physical distress is noted." (Id.). Dr. Lee further noted that plaintiff was able to sit, stand and walk without physical manifestations or complaints of pain. (Id.). Dr. Lee stated that plaintiff exhibited adequate hearing, pupil reaction, motor system performance, sensory system performance and tendon reflexes (Id.). Dr. Lee further stated that:
Stance and gait are normal.
He was able to walk on heels and toes and squat down and stand up without any difficulty. He was not able to bend forward because he was afraid that he might develop a pain in the back. He was able to bend sidewards without any limitation and he was able to move his neck without any limitation of motion.
(Id. at 143). Dr. Lee's final impression was that, following his recent spondylolisthesis operation, claimant "is in the process of healing." (Id.).
The record also contains three reports prepared by Dr. Frank P. Pettinelli, Jr., dated April 19, 1996, May 8, 1997 and May 16, 1997. The April 19, 1996 report states that Dr. Pettinelli first met with plaintiff in November of 1995, when plaintiff came in for a consultation, and told Dr. Pettinelli about his long history of back problems and current neck and lower back pains. (Id. at 145). Dr. Pettinelli discussed plaintiff's back problems (id.), and stated that plaintiff suffers pain while sitting, standing, walking, carrying, and lifting (id.); that plaintiff has suffered ongoing pain since undergoing a cervical myelogram in 1991 (id.); and that there was "marked diminished range of motion noted" in the neck and lower back areas. (Id. at 146). Dr. Pettinelli diagnosed plaintiff as having chronic pain syndrome with a poor long-term prognosis, to be treated by an exercise program and continued narcotic medication. (Id. at 146-47).
Dr. Pettinelli's next report was dated May 8, 1997. In this report, Dr. Pettinelli discussed plaintiff's ongoing pain (id. at 157); stated that plaintiff's "range of motion was diminished approximately 50% of normal in all planes" (id.); that plaintiff's motor and sensory examination was "essentially intact" (id.); that plaintiff suffered from chronic pain syndrome and herniated spine and was functionally impaired; and that plaintiff's "prognosis remains guarded." (Id.).
In his "Complete Medical Report" of May 16, 1997 prepared for the Social Security Administration's Office of Hearings Appeals, Dr. Pettinelli stated that plaintiff's response to his treatment has been minimal. (Id. at 150). The completed Medical Assessment of Ability to Do Work-Related Activities form attached to the May 16, 1997 report stated that plaintiff could lift a maximum of twenty pounds occasionally, and a maximum of ten pounds frequently, because of a herniated disc (Id. at 151). Dr. Pettinelli further indicated that plaintiff could sit for only two hours per work day and for only twenty minutes without interruption and that plaintiff could stand and/or walk for only two hours per work day and for only twenty minutes without interruption (id. at 152); that plaintiff could only occasionally balance or kneel, and never climb, stoop, crouch, or crawl (id.); that plaintiff's reaching and pushing and/or pulling abilities are affected by his impairments. (Id. at 153). Dr. Pettinelli also stated that he had prescribed that plaintiff take four tablets of oxycontin, two to four doses of percocet, three to four shots of stadol, three doses of skelaxin and one dose of ambien each day. (Id. at 155).
Additionally, the record contains two Residual Functional Capacity Assessment Forms ("RFCA Form(s)") completed by state medical consultants. The first, dated July 18, 1995, indicated that plaintiff could occasionally lift objects of up to fifty pounds, frequently lift objects of up to twenty-five pounds, stand and/or walk approximately six hours in a eight hour day, or sit for approximately six hours in an eight hour day, and push or pull objects without limit. (R. 66.) The RFCA form further indicated that plaintiff could occasionally climb ramps and/or stairs, and could occasionally perform balancing, stooping, kneeling, crouching, and crawling (R. 67); and that there were no manipulative, visual, communicative or environmental limitations established. (R. 68-69.)
A second RFCA form, completed on April 24, 1996, indicated that plaintiff could lift fifty pounds occasionally and twenty-five pounds frequently (R. 84); could stand and/or walk for six hours out of an eight-hour day (id.); could sit for six hours out of an eight-hour day (id.); could push and/or pull objects without limitation (id.); could frequently climb ramps, stairs ladders, ropes and scaffolds, and could frequently perform stooping, kneeling, balancing, crouching and crawling (R. 85); and had no manipulative, visual, communicative or environmental limitations. (R.86-87.)
The record also contains a report prepared by Dr. Sidney Tobias on November 5, 1997, several months after the ALJ's decision. The Tobias report was sent to the Appeals Council by plaintiff's attorney on December 5, 1997. (R. 159.) This was a detailed report, prepared after a consultation with plaintiff and a review of many years of medical records. The Tobias report discusses plaintiff's history of medical problems in a manner consistent with the above medical evidence. Dr. Tobias reported that plaintiff "ambulates with a wide based shuffling gait, bent forward, in obvious discomfort." (Id. at 161).
Dr. Tobias further noted that, relating to the cervicodorsal spine, plaintiff exhibits: a flattened cervical curve through the proximal dorsal curve (id.); moderate spasms in the posterior and lateral cervical musculature (id.); significant restriction of cervical motion in all planes (id.); and significant deficiencies of ranges of motion in flexion, extension, bending and rotation. (Id. at 162).
Dr. Tobias noted that, relating to the lumbar, lumbodorsal, and lower extremity regions, plaintiff exhibits markedly stiff "backed stance and gait with marked flattening of the lumbar and lumbodorsal curves" (id.); marked pelvic tilt (id.); scoliosis in the pelvic region (id.); marked restrictions of trunk motion in all planes (flexion, extension, bending, rotation, and straight leg raising) (id. at 163); and an episode of severe lumbar spasm during the examination. (Id.). Dr. Tobias further reported that plaintiff exhibited difficulty arising from the examination table, and left the examining room in a "shuffling gait, bent over and in obvious pain." (Id.).
Dr. Tobias concluded by diagnosing that claimant suffered from residuals of acute cervical sprain and contusion and sprain of the left knee, (id. at 164-65), that plaintiff was in the post operative state for anterior cervical discectomy and fusion, for arthropy and partial medial meniscectomy of the left knee and for multiple lumbar surgical procedures (id.), and that plaintiff suffered from failed back syndrome, chronic lumbar myositis and fimbromyositis, and bilateral lower extremity radiculopathy. (Id. at 165). Dr. Tobias also opined that "this patient should be considered permanently and totally disabled as an overall functional unit. . . . [H]e will be unable to perform any type of gainful employment, either sedentary or physically demanding at any time in the foreseeable future." (Id.).
II. DISCUSSION
The Social Security Act defines "disability" for purposes of plaintiff's entitlement to benefits as the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(A). Under this definition, a claimant qualifies as disabled "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has promulgated regulations that determine disability by application of a five-step sequential analysis codified in 20 C.F.R. § 404.1520. The Commissioner evaluates each case according to a five-step process until a finding of "disabled" or "not disabled" is obtained. 20 C.F.R. § 404.1520(a). This five-step process is summarized as follows:
1. If the claimant currently is engaged in substantial gainful employment, he will be found "not disabled."
2. If the claimant does not suffer from a "severe impairment," he will be found "not disabled."
3. If the severe impairment meets or equals a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 and has lasted or is expected to last for a continuous period of at least twelve months, the claimant will be found "disabled."
4. If the claimant can still perform work he has done in the past ("past relevant work") despite the severe impairment, he will be found "not disabled."
5. Finally, the Commissioner will consider the claimant's ability to perform work ("residual functional capacity"), age, education and past work experience to determine whether or not he is capable of performing other work which exists in the national economy. If he is incapable, a finding of disability will be entered. On the other hand, if the claimant can perform other work, he will be found not to be disabled.20 C.F.R. § 404.1520(b)-(f). Entitlement to benefits is dependent upon a finding that the claimant is incapable of performing some other type of work in the national economy.
This analysis involves a shifting burden of proof. Wallace v. Secretary of Health Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983). In the first four steps of the analysis, the burden is on the claimant to prove every element of her claim by a preponderance of the evidence. In the final step, however, the Commissioner bears the burden of proving that work is available for the plaintiff: "Once a claimant has proved that he is unable to perform his former job, the burden shifts to the Commissioner to prove that there is some other kind of substantial gainful employment he is able to perform." Kangas, 823 F.2d at 777. See Olsen v. Schweiker, 703 F.2d 751, 753 (3d Cir. 1983). As this case did not escape the fourth step of the analysis, the burden of proof remained with the plaintiff at all times.
A reviewing court must uphold the Commissioner's factual decisions if they are supported by "substantial evidence." 42 U.S.C. § 405(g), 1383(c)(3); Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992),cert. denied, 507 U.S. 924 (1993). "Substantial evidence" means more than "a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The inquiry is not whether the reviewing court would have made the same determination, but, rather, whether the Commissioner's conclusion was reasonable. See Brown, 845 F.2d at 1213. Thus, substantial evidence may be slightly less than a preponderance. See Hanusiewicz v. Bowen, 678 F. Supp. 474, 476 (D.N.J. 1988).
Some types of evidence will not be "substantial." For example,
[a] single piece of evidence will not satisfy the substantiality test if the [Commissioner] ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence — particularly certain types of evidence (e.g. that offered by treating physicians) — or if it really constitutes not evidence but mere conclusion.Wallace, 722 F.2d at 1153 (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)).
The reviewing court, however, does have a duty to review the evidence in its totality. See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984). In order to do so, "a court must `take into account whatever in the record fairly detracts from its weight.'" Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (quoting Willbanks v. Secretary of Health Human Servs., 847 F.2d 301, 303 (6th Cir. 1988) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951))). The Commissioner has a corresponding duty to facilitate the court's review: "[w]here the [Commissioner] is faced with conflicting evidence, he must adequately explain in the record his reasons for rejecting or discrediting competent evidence." Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D.Pa. 1987) (citing Brewster v. Heckler, 786 F.2d 581 (3d Cir. 1986)). As the Third Circuit has held, access to the Commissioner's reasoning is indeed essential to a meaningful court review:
Unless the [Commissioner] has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits, to say that his decision is supported by substantial evidence approaches an abdication of the court's duty to scrutinize the record as a whole to determine whether the conclusions reached are rational.Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978). The ALJ must set out a specific factual basis for each finding. Baerga v. Richardson, 500 F.2d 309 (3d Cir. 1974), cert. denied, 420 U.S. 931 (1975); Root v. Heckler, 618 F. Supp. 76, 79 (D.Del. 1985). Simply referring to the "record" is insufficient. Abshire v. Bowen, 662 F. Supp. 8 (E.D.Pa. 1986). Also, the ALJ must analyze all of the evidence in the record and provide an adequate explanation for disregarding evidence. Adorno v. Shalala, 40 F.3d 43 (3d Cir. 1994). Nevertheless, the district court is not "empowered to weigh the evidence or substitute its conclusions for those of the fact-finder." Williams, 970 F.2d at 1182.
Moreover, apart from the substantial evidence inquiry, a reviewing court is entitled to satisfy itself that the Commissioner arrived at her decision by application of the proper legal standards. Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983); Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981).
III. ANALYSIS
The court holds that the ALJ's finding that claimant's impairments neither meet nor equal any impairment listed in 20 C.F.R. § 404, Appendix 1, Subpart P, Regulations No. 4 was supported by substantial evidence. The ALJ's discussion regarding claimant's allegations of pain was also supported by substantial evidence. However, this court finds that the ALJ's treatment of the step 4 Residual Functional Capacity assessment was insufficient, and is unable to hold that the findings in the opinion were supported by substantial evidence. Upon remand, the ALJ shall consider the Tobias report and plaintiff's allegations of the side effects of his medication.
A. The ALJ's Finding that Claimant's Impairments did not Meet a Listed one was Supported by Substantial Evidence.
The ALJ held that claimant's impairments neither met nor equaled any impairment listed in 20 C.F.R. § 404, Appendix 1, Subpart P, Regulations No. 4. Claimant contends that the Commissioner of Social Security's affirmance of this finding was erroneous. Of course, any step three ALJ holding, in order to be reversed, must be unsupported by substantial evidence, and the burden of proof remains with the plaintiff.
In Sullivan v. Zebley, the Supreme Court explained the implications of a finding of disability at step three. See Sullivan v. Zebley, 493 U.S. 521, 532 (1986). The level of severity required to meet or equal a listed impairment is higher than that needed to meet or equal the statutory standard for disability. Id. at 532. That is, the listings define impairments which would prevent an adult, regardless of his age, education, or work experience, from performing not just substantial gainful activity, but any gainful activity. Id.; see also 20 C.F.R. § 416.925(a); S.S.R. 86-8. Hence, the listings operate as a presumption of disability. See Zebley, 493 U.S. at 532. If an adult is not working and possesses an impairment which matches or equals a listed impairment, that individual is conclusively presumed to be disabled and awarded benefits without further inquiry. See Bowen v. Yuckert, 482 U.S. 137, 141 (1987). See also Petition of Sullivan, 904 F.2d 826, 845 (3d Cir. 1990) (holding that a finding of disabled at step three implicitly includes a finding that the symptoms of the disease have progressed to a degree that objectively precludes any gainful work). However, if the impairment is not one that is conclusively presumed to be disabling, then the evaluation proceeds to the fourth step. See Yuckert, 482 U.S. at 141. See also Bowen v. City of New York, 476 U.S. 467, 471 (1986) (stating "[i]f a person claimant's condition meets or equals the listed impairments, he is conclusively presumed to be disabled and entitled to benefits"; if not, "the process moves to the fourth step").
An adult claimant must present evidence that an unlisted impairment, or combination of impairments, equals the severity of all the criteria for a listed impairment to establish equivalence. Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992). The ALJ must adequately explain findings on equivalence. Marcia v. Sullivan, 900 F.2d 172 (9th Cir. 1990).
Plaintiff claims that his impairments equal those listed in 20 C.F.R. pt. 404, App. 1, § 1.05(C). This section requires, in order to establish a step three finding of disability, the existence of or equivalence with:
1.05 Disorders of the spine:
* * *
C. Other vertebrogenic disorders (e.g., herniated nucleus puplosus, spinal stenosis) with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2:
1. Pain, muscle spasm, and significant limitation of motion in the spine; and
2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.Id. (emphasis added). Plaintiff's own treating physician, however, in his most recent post-examination report on record, stated that plaintiff's "[m]otor and sensory examination was essentially intact." (Respondent's brief at 15; R. 157). Additionally, Dr. Lee's report stated that plaintiff's muscle system exhibited normal tone and power, with no evidence of atrophy. (R. 142). A report from one's own treating physician, corroborated by another examining physician, certainly constitutes substantial evidence for a finding that the requirements of 20 C.F.R. pt. 404, App. 1, § 1.05(C)(2) have not been met or equaled. Therefore, this court holds that the ALJ's determination that plaintiff did not meet or equal a listed impairment is supported by substantial evidence. This Court now proceeds to examine the ALJ's step four analysis.
C.The ALJ's consideration of Plaintiff's Allegations of Pain was not Erroneous
Plaintiff further argues that his statements regarding pain were not given enough credence by the ALJ. This Court finds that the weight given these allegations by the ALJ was supported by substantial evidence. Two doctrinal strands often overlap in the realm of evaluating subjective complaints of pain. First, in general, an ALJ decision regarding the credibility due to a claimant whom the ALJ has had the opportunity to observe is entitled to much deference. Second, a claimant's testimony regarding pain, if supported by medical evidence, is also to be given great deference. The ALJ's decision here to give limited credence to claimant's allegations of pain was supported by substantial evidence.
On page four of his July 24, 1997 opinion, the ALJ, following his examination of claimant's daily activities, states that:
In reaching the conclusion that claimant is not disabled, the undersigned has considered his subjective complaints pursuant to 20 C.F.R. § 404.1529(c) of the Social Security Regulations and Social Security Ruling (SSR) 96-7p. Although claimant has an underlying medically determinable impairment that could reasonably cause the symptoms alleged, his symptoms are not of such severity, persistence, or intensity as to preclude all work activity. . . .
. . . Notwithstanding these allegations, claimant's symptoms are not supported by the objective medical evidence in the record to the degree to which they are claimed.
Allegations of pain must be accompanied by medical signs and laboratory findings which show that the claimant has a medical impairment which could reasonably be expected to produce the pain or other symptoms alleged. See Bittel v. Richardson, 441 F.2d 1193, 1195 (3d Cir. 1971). The ALJ is required to give serious consideration to the claimant's subjective complaints of pain, even though those assertions are not fully confirmed by the objective medical evidence, Welch v. Heckler, 808 F.2d 264, 270 (3d Cir. 1986), but the ALJ is not bound to accept unquestioningly the credibility of such subjective evidence. Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). It is within the ALJ's discretion "to evaluate the credibility of a claimant and to arrive at an independent judgment in light of medical findings and other evidence regarding the true extent of the pain alleged by the claimant. Brown v. Schweiker, 562 F. Supp. 284, 287 (E.D.Pa. 1983) (quoting Bolton v. Secretary of HHS, 504 F. Supp. 288 (E.D.N.Y. 1980)). Subjective symptoms of pain can be validated if observed and treated over time by a physician. Dorf v. Bowen, 794 F.2d 896 (3d Cir. 1986). While there must be objective medical evidence of some condition that could reasonably produce pain, there need not be objective evidence of the pain itself.Green v. Schweiker, 749 F.2d 1066, 1071 (3d Cir. 1984). In the present case, the ALJ indeed acknowledged that plaintiff has an underlying medically determinable impairment that could reasonably cause the symptoms alleged. (R. 17.)
But the inquiry does not end here. Even if a medically determinable impairment exists which can reasonably be expected to produce pain, the intensity and persistence of symptoms must also be evaluated in order to determine how they might limit a claimant's ability to work. See 20 C.F.R. § 404.1529(c)(1) (1995). When a claimant's subjective complaints of pain indicate a greater severity of impairment than the objective medical evidence supports, the ALJ can give weight to factors such as physician's reports and claimant's daily activities. See 20 C.F.R. § 404.1529(c)(3) (1995). The ALJ must indicate the basis for conclusions that the claimant's testimony is not credible. Cotter v. Harris, 642 F.2d 700.
When a plaintiff testifies that she suffers from pain and that testimony is corroborated by medical reports, the ALJ must give the subjective allegations great weight. See 20 C.F.R. § 404.1529(a)-(c); Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986). However, the ALJ has discretion "to evaluate the credibility of a claimant and to arrive at an independent judgment in light of medical rulings and other evidence regarding the true extent of the [ailment] alleged by the claimant." LaCorte v. Bowen, 678 F. Supp. 80, 83 (D.N.J. 1988) (quoting Brown v. Schweiker, 562 F. Supp. 284, 287 (E.D.Pa. 1983)). On review, the Court must consider whether the ALJ's findings with regard to subjective complaints of pain are supported by substantial evidence. Dumas v. Schweiker, 712 F.2d 1545, 1552. Further, a lack of atrophy can strongly support the proposition that the claimant is not restricting her body movements due to pain, since the major muscle groups have retained essentially normal size and strength through use.
The regulations provide:
Since symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone, we will carefully consider any other information you may submit about your symptoms. . . . Because symptoms, such as pain, are subjective and difficult to quantify, any symptom-related functional limitations which you, your treating or examining physician or psychologist, or other persons report, which can be reasonably accepted as consistent with the objective medical evidence and other evidence, will be taken into account . . . in reaching a conclusion as to whether you are disabled.20 C.F.R. § 404.1529(c)(3).
The ALJ had the opportunity to view and hear plaintiff during the May 12, 1997 hearing. The ALJ examined plaintiff's reports of his daily activities to Dr. Lee. The ALJ also examined medical evidence on record which can reasonably be said to contradict the claimant's allegations about the extent of pain suffered. Dr. Lee found that on the date of his examination (May 4, 1995), claimant was able to toe walk, sit, stand, and squat with no visible pain. (R. 143.) Dr. Lee also specifically found in his report that plaintiff did not exhibit muscle atrophy. (R. 142.) Dr. Balderston stated that plaintiff was ambulating four to six miles per day (R. 137); that as of October 12, 1994, he suffered "significantly diminished back pain" (id. at 139); that as of January 13, 1995, "his back and leg pain have significantly improved" (id. at 140); and that he was prescribing plaintiff further exercises and allowing him to play golf. (Id.)
This evidence was substantial, and this court holds that the ALJ's finding that plaintiff's allegations of pain were only partially credible was supported by substantial evidence, and was therefore not erroneous based upon the information then available to the ALJ.
D.The ALJ Erred in His Step Four Residual Functional Capacity Analysis
As this case will be remanded for further consideration of residual functional capacity, the Tobias report and the side effects of plaintiff's chronic medication, as discussed below, the ALJ will obviously again have the opportunity to assess the severity and duration of plaintiff's pain in light of the entire record.
Plaintiff argues that the ALJ erroneously declined to give the opinion of Dr. Pettinelli sufficient weight during the step four residual functional capacity analysis. This court agrees in part. The ALJ was not erroneous in declining to give Dr. Pettinelli's reports controlling weight. However, the ALJ's RFC findings were inadequately analyzed and explained, and this case is therefore remanded.
Plaintiff alleges that the ALJ improperly did not give his treating physician's reports controlling weight. Plaintiff cites numerous cases which support a basic principle of Social Security disability cases, that the opinion of the treating physician, in general, is to be given controlling weight in the absence of substantial controverting evidence. However, a treating physician's report is to be given controlling weight only in the absence of substantial controverting evidence. 20 C.F.R. § 404.1527(d)(2). The ALJ, prior to the RFC determination, analyzed certain evidence of the record, such as the reports of Drs. Lee and Balderston and plaintiff's statements about his daily activities. These reports, combined with plaintiff's reports of his daily activities, would probably constitute substantial evidence to controvert the opinion of Dr. Pettinelli.
See generally 20 C.F.R. § 404.1527(d)(2); Mason v. Shalala , 994 F.2d 1058, 1067 (3d Cir. 1993); Kane v. Heckler , 776 F.2d 1130, 1135 (3d Cir. 1985); Rocco v. Heckler , 826 F.2d 1348 (3d Cir. 1987). Generally, an ALJ cannot reject the opinion of a treating physician in the absence of other medical evidence of record; Kent v. Schweiker , 710 F.2d 110, 115 n. 5 (3d Cir. 1983); Jones v. Sullivan , 954 F.2d 125, 128-29 (3d Cir. 1991); Smith v. Sullivan , 720 F. Supp. 62, 64 (E.D.Pa. 1989). An ALJ can only reject the opinion of a treating physician if he or she explains on the record the reasons for doing so. See Allen v. Bowen , 881 F.2d 37, 41 (3d Cir. 1989); Brewster , 786 F.2d at 585. The opinion of the treating physician is entitled to more weight than that of a one-time consultative examiner, Adorno v. Shalala , 40 F.3d 43 (3d Cir. 1994); or that of a medical advisor or other non-examining physician, Dorf v. Bowen , 794 F.2d 896 (3d Cir. 1986).
Moreover, plaintiff's claim that the ALJ improperly ignored his treating physician's opinion relates only to the RFC analysis. Although the diagnosis of a treating physician is considered as to whether a claimant is "disabled," the ALJ has the final responsibility to determine a claimant's residual functional capacity. 20 C.F.R. § 404.1527(e)(2). A treating physician's opinion in this area, even if uncontroverted, is not to be given controlling weight. 20 C.F.R. § 404.1527(e)(2) states that "[a]lthough we consider opinions from treating and examining sources on issues such as . . . your residual functional capacity . . . the final responsibility for deciding these issues is reserved to the Secretary. We will not give any special significance to the source of the opinion on these issues." (Id.) (emphasis added). The ALJ did not err in declining to give controlling weight to the treating physician during the RFC analysis.
Plaintiff further argues that reports of a claimant's daily activities can not constitute substantial evidence to controvert a treating physician's opinion. The Court does not agree. See S.S.R. 96-2p at 3-4, stating that there is occasionally an "obvious inconsistency between the opinion and the other substantial evidence; for example, when a treating source's report . . . is inconsistent with the statements of the individual's spouse about the individual's actual activities. . . . [A]ny kind of medical or nonmedical evidence can potentially satisfy the substantial evidence test." (emphasis added); see also 20 C.F.R. § 1513(c)(1)(e)(2) (listing "observations by non-medical sources" as acceptable medical evidence about what activities a claimant can still engage in).
Nonetheless, the ALJ's RFC analysis was deficient because the ALJ insufficiently explained his analysis of the relevant evidence. His discussion of the factual findings underlying the "medium work" RFC assessment were supported by neither sufficient reasoning nor sufficient analysis of the evidence.
The ALJ, after analyzing some of the medical evidence on the record, states:
[C]ontrolling weight is generally given to a treating physician's opinion. In this case however, it is not, as the opinion is contradicted by more compelling evidence of record. Although Dr. Pettinelli, claimant's treating physician, opines that claimant cannot even do sedentary work, claimant's activities, as reported to Dr. Lee, contradict this assessment. Claimant wakes up each day at 5:30 a.m. He feeds the baby and cares for it all day until his wife comes home from work. He has been able to lift his child since the 1994 surgery. He cooks, reads, and watches t.v. He drives several times a week and walks to the nearby supermarket.
(R. 17) (citations to the record omitted). The ALJ then goes into a discussion discounting claimant's allegations of pain, and states:
After careful consideration of the entire record, the undersigned concludes that claimant has the residual functional capacity to perform work at medium levels of exertion. Claimant can lift up to fifty pounds, he can sit, walk and stand for up to eight hours per day, although he should avoid climbing ladders[,] ropes or scaffolding.
(Id.). The ALJ rejected the specific findings of Dr. Pettinelli, plaintiff's treating physician, by referring merely to plaintiff's daily activities and discounting plaintiff's testimony regarding pain. The ALJ found that plaintiff could (1) lift up to fifty pounds and (2) sit, walk and stand for up to eight hours per day, without pointing to a single piece of evidence on the record, medical or otherwise, to support either of these specific findings.
The Social Security Administration recently released a ruling which governs the standard which the ALJ must follow in selecting an RFC for a claimant. In this case, the ALJ properly stated function-by-function findings about plaintiff's abilities to lift, sit, stand and walk. However, the discussion underlying these findings was insufficient, and the only evidence cited by the ALJ in this section of the opinion, claimant's reports to Dr. Lee of his daily activities, does not constitute substantial evidence for the ALJ's findings. The ability to lift an infant does not constitute substantial evidence that plaintiff can occasionally lift fifty pounds or to frequently lift twenty pounds. Also, the mere fact that plaintiff performs household chores and cares for his young children while his wife is at work does not constitute substantial evidence for a finding that he is able to sit, stand or walk for eight hours per day.
Social Security Ruling 96-8p states in part: "4. The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraphs (b), (c), and (d) of 20 C.F.R. § 404.1545 and 416.945.
. . .
. . . In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e. 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record.
This does not say that substantial evidence does not exist which could support these findings, only that the ALJ's analysis and attention given to the evidence were lacking. The ALJ ignored virtually every piece of evidence in the record with respect to the plaintiff's residual functional capacity. He did not mention Dr. Pettinelli's opinion that plaintiff could lift a maximum of twenty pounds. He did not mention Dr. Balderston's opinions regarding plaintiff's post-operative physical capacities. He did not mention the generous assessments of plaintiff's functional capacities noted in the two state Residual Functional Capacity Assessment Forms. He did not discuss plaintiff's hearing testimony at about his lifting or standing/walking/sitting ability. The ALJ provided very little information regarding the weight that he actually gave to the medical evidence. This insufficient discussion does not support an informed or meaningful review. The ALJ must set out a specific factual basis for each finding. Baerga v. Richardson, 500 F.2d 309 (3d Cir. 1974), cert. denied, 420 U.S. 931 (1975); Root v. Heckler, 618 F. Supp. 76, 79 (D.Del. 1985). Simply referring to the "record" is insufficient.Abshire v. Bowen, 662 F. Supp. 8 (E.D.Pa. 1986). The ALJ must analyze all of the pertinent evidence in the record and provide an adequate explanation for disregarding evidence. Adorno v. Shalala, 40 F.3d 43 (3d Cir. 1994).
This court declines to review the record and to perform an RFC analysis consistent with 96-8p. As the Third Circuit has held, access to the Commissioner's reasoning is indeed essential to a meaningful court review:
Unless the [Commissioner] has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits, to say that his decision is supported by substantial evidence approaches an abdication of the court's duty to scrutinize the record as a whole to determine whether the conclusions reached are rational.Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978).
In conclusion, because the ALJ did not cite which evidence he considered during his RFC analysis (and certainly did not cite any evidence supporting the finding of plaintiff's ability to lift fifty pounds or to walk, sit or stand eight hours per day) and because the ALJ's explanation of his reasoning during the RFC analysis was deficient, this court is unable to agree that substantial evidence supports the ALJ's RFC analysis. Also, testimony of a claimant's daily activities can constitute substantial medical evidence, but in this case they do not in and of themselves constitute substantial evidence for an RFC to perform medium level work.
E.Upon Remand, the ALJ Must Consider Plaintiff's Contentions About Side Effects of Medication
In his opinion denying benefits to the plaintiff, the ALJ did not consider the effects of the various narcotic medications which plaintiff frequently was taking for pain. This was erroneous, and upon remand, the ALJ shall consider plaintiff's claims about the side effects of his medication on his ability to perform substantial gainful activities. Although it may appear that the side effects of plaintiff's medications were not highly significant, this does not mean that such effects, when alleged by a claimant, may be ignored by an ALJ.
The side effects of medications, when raised by claimant, must be considered by an ALJ in determining a claimant's overall level of impairments. The record before the ALJ established that plaintiff was regularly taking five at least five prescribed medications daily: oxycontin (4 tablets per day); percocet (two to four times per day); stadol (three to four shots per day); skelaxin (three times per day); and ambien (once per day). (R. 155). Plaintiff testified that his medications made him "tired and drowsy." (R. 38). He later testified to drowsiness from his medication, and that he is not supposed to, and usually does not, operate a motor vehicle after taking his medication. On page three of his July 4, 1997 Decision, the ALJ stated that "Dr. Pettinelli prescribed medication to alleviate claimant's pain." This was the ALJ's only mention of the effects of plaintiff's medication. In fact, plaintiff, has found it necessary to take substantial narcotic and non-narcotic prescription pain relievers throughout the entire period of his alleged disability. (See, e.g., R. 110-12, 115, 120-21, 122-23, 128, 143, 145 ("he has been maintained with chronic narcotic medication"), 146, 150, 154 ("[r]equires chronic narcotic medication secondary to pain. Modest relief [with] meds"), 155, 158.)
When examining the overall level of impairment suffered by a claimant, an ALJ must take into account any side effects of prescribed medications which are alleged by the claimant. See 20 C.F.R. Part 404, Subpart P, Appendix 1, § 11.00 (stating that where an ailment can be treated only with unusually large doses, "the possibility of impairment resulting from the side effects of this medication must also be assessed"); see also Young v. Shalala, 1995 WL 34024 (E.D.Pa. 1995) (remanding because the ALJ ignored "problematic side effects" of medications mentioned by examining physicians); Cruz v. Bowen, 1991 WL 147504 (E.D.Pa. 1991) (stating that the "Secretary shall hold a new impartial hearing . . . [and] evaluate the evidence concerning the effect of the multiple medications prescribed for plaintiff. . . ."). This court agrees with the First Circuit's opinion in Figueroa v. Secretary of Health, 585 F.2d 551, 553-54 (1st Cir. 1978), a comparable case in which the Court stated "we feel that the Secretary's response was inadequate. . . . At very least, the [ALJ] should have made a finding on appellants claim regarding the side effects, making it possible for a reviewing tribunal to know that the claim was not entirely ignored."
In Figueroa , the Court felt that claimant's claims of side effects were not well supported. In this case, the claims are indeed strong (and supported by the opinions of multiple examining physicians) but the allegations might not indicate particularly severe side effects.
F. ALJ Shall Consider the Tobias Report Upon Remand
Plaintiff alleges that the Appeals Counscil erred by failing to give proper weight to the Tobias report. The report of Sidney Tobias, M.D., dated November 5, 1997, was unavailable to the ALJ at the time of plaintiff's hearing six months earlier, but it appeared in the record at R. 160-65 and it was allegedly considered by the Appeals Council, as discussed below. As this court is remanding this case to the Commissioner for reasons discussed in part III-D above, we do not have occasion to answer these allegations. This court requires, however, that upon remand, the ALJ shall consider the Tobias report.
Dr. Tobias noted plaintiff's surgeries in 1972 and 1975 for osteochondritis, followed by a lumbar laminectomy and discectomy at L4-5 in 1981. (R. 160.) The 1991 motor vehicle accident and and resulting injury to his cervical spine and re-injury of his lumbar spine were noted, followed by his 1992 anterior cervical discectomy and fusion at the C5-6 and C6-7 levels. (Id.) When increasingly severe low back pain continued, he had surgery in 1994 at Thomas Jefferson University Hospital in a spinal decompression and laminectomy and partial facetectomy at L4-5 with spinal instrumentation as well as a left iliac crest bone graft. (Id.) Due to "constant severe pain" (R. 161), including frequent headaches, he continued to take Percocet and Oxycodone twice daily as presceibed by Dr. Pettinelli . (R. 161.) After conducting range of motion and other physical examinations, Dr. Tobias found plaintiff totally disabled and unable to perform any type of gainful activity. (R. 165.)
As plaintiff notes in his reply brief, the Appeals Council explicitly accepted the Tobias report as evidence, but apparently did not feel that this report was worth discussing in their declination of review. According to 20 C.F.R. § 404.970(b), if evidence is submitted "which does not relate to the period on or before the date of the administrative law judge hearing decision, the Appeals Council will return the additional evidence . . . with an explanation as to why it did not accept the additional evidence." The Appeals Council did not return the Tobias report with an explanation as to why it was being rejected. On page one of the Appeals Council's Action on Request for Review of May 7, 1998, they stated that "[t]he Appeals Council has also considered . . . the additional evidence identified on the attached Order of the Appeals Council . . ." The Order of Appeals Council of May 7, 1998 stated:
Evidence in addition to that which was before the Administrative Law Judge has been received by the Appeals Council and is hereby made a part of the record. That evidence consists of the following exhibit(s):
Exhibit AC-1: Medical report from Sidney Tobias, M.D., dated November 5, 1997 under cover letter from Albert G. Weiss, Attorney at Law, dated December 5, 1997.
(emphasis added). That the Tobias report is now a part of the record is no longer up for debate. Therefore, on remand, the ALJ shall consider it. It is not in the purview of this court to decide exactly how much weight should have been or should be given to the Tobias report. This is the province of the ALJ and the Appeals Council. We merely note that the Tobias opinion is an in-depth analysis of the plaintiff by an examining physician who comprehensively examined plaintiff and reviewed much of the other medical evidence on record, and as such may not be simply ignored. Dr. Tobias is also a Fellow of the American Academy of Disability Evaluating Physicians (R. 160), and on remand the ALJ may choose to give substantial weight to this disability specialist's findings.
VI. CONCLUSION
The ALJ's holdings that (a) plaintiff's impairments did not constitute or equal a listed one and (b) that plaintiff's allegations of pain suffered were only partially credible were both supported by substantial evidence. Also, this court can not hold that the ALJ erroneously declined to give enough credit to plaintiff's treating physician. However, the ALJ's step four Residual Functional Capacity analysis was not properly explained and did not sufficiently examine the relevant evidence on record. Further, the ALJ erroneously neglected to consider the alleged deleterious side effects of plaintiff's medications.
Upon remand, the ALJ shall perform a more adequate RFC evaluation consistent with the above discussion. Upon remand, the ALJ shall consider the evidence regarding the detrimental side effects of plaintiff's medications, including chronic narcotic prescription painkillers. The ALJ shall also consider the report of Dr. Sidney Tobias, which has been explicitly admitted by the Appeals Council as part of the record.
ORDER
This matter having come before the court upon plaintiff Jeffrey Denish's application to review the final decision of the Secretary of Health and Human services denying plaintiff's application of disability benefits under Title II of the Social Security act; and this court having considered the entire record and all submissions on behalf of the parties; and for the reasons stated in the Opinion of today's date and for good cause shown:
IT IS this day of August, 1999, hereby ORDERED that the final decision of the Secretary be, and hereby is, REMANDED for a renewed Residual Functional Capacity analysis and further proceedings consistent with the accompanying Opinion.