Opinion
Civ. No. 99-2785
March 29, 2000
ORDER AND REASONS
Plaintiff Earl M. Falls seeks judicial review pursuant to Section 405(g) of the Social Security Act (the "Act") of the final decision of the Commissioner of Social Security Administration (the "Commissioner"), which denied his claim for disability income benefits ("DIB") and supplemental security income benefits ("SSI") under Title II, §§ 216(I) and 223 of the Act, 42 U.S.C. § 416(I) and 423, and under Title XVI, §§ 1602 and 1614(a)(3)(A) of the Act, 42 U.S.C. § 1381(a). Plaintiff and defendant filed timely memoranda of facts and law. Record Doc. Nos. 6, 7.
1. PROCEDURAL HISTORY
Falls applied for DIB and SSI on October 20, 1997, alleging disability since May 1, 1997, due to "major depression." (Tr. 84-86, 100). The Commissioner denied his application initially and on reconsideration. (Tr. 62-65, 66-67). Plaintiff requested a hearing before an administrative law judge ("ALJ"). Two hearings were held; one on June 22, 1998 (Tr. 25-43), and one on August 20, 1998 (Tr. 44-57). The ALJ denied his application on September 23, 1998. (Tr. 9-22). After the Appeals Council denied review on July 14, 1999 (Tr. 4-5), the ALJ's decision became the final decision of the Commissioner for purposes of this Court's review.
2. STATEMENT OF ISSUES ON APPEAL
Plaintiff's request for judicial review raises the following issue: whether or not plaintiff was denied a fair hearing, and whether or not the ALJ improperly rejected the opinion of the vocational expert in the first hearing in favor of the vocational expert in the second hearing.
3. ALJ'S FINDINGS RELEVANT TO ISSUES ON APPEAL
A. The medical evidence establishes that the claimant has the severe impairment of severe major depression, recurrent, which interferes with his ability to do basic work activities. Therefore, the claimant has a "severe" impairment. However, these impairments do not meet or equal any listed impairments found at 20 C.F.R. Part 404, Subpart P, Appendix I.
B. The claimant has pain and functional limitations resulting from the pain. However, his complaints of pain and alleged functional limitation are not as severe as alleged and are not credible.
C. The claimant has the residual functional capacity to perform a full range of heavy level work, pursuant to the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix II, § 204.00, restricting him to lifting and/or carrying no more than 50-100 lbs. occasionally, and 25-50 lbs. frequently; standing and/or walking no more than six hours in an eight hour day; sitting no more than six hours in an eight hour day; no limitations on pushing or pulling other than those listed under lifting and/or carrying; but with the non-exertional limitations of only occasional direct exposure to the public; only simple instructions and tasks; with the ability to handle changes in routine work and engage in unlimited phone contact with the public.
D. The claimant cannot perform his past relevant work.
E. The claimant is able to perform other jobs in the national and local economy, including the following; [the ALJ lists a large number of available jobs, based on the testimony of the vocational expert.]
F. The claimant is not under a "disability," as defined in the Social Security Act, at any time through the date of this decision ( 20 C.F.R. § 404.1520(f) and 416.920(f)).
4. ANALYSIS Standards of Review
The function of this Court on judicial review is limited to determining whether there is substantial evidence in the record to support the final decision of the Commissioner as trier of fact and whether the Commissioner applied the appropriate legal standards in evaluating the evidence. Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). Substantial evidence is more than a scintilla but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.Richardson v. Perales, 402 U.S. 389, 401 (1971); Spellman, 1 F.3d at 360. This Court may not reweigh the evidence, try the issues de novo or substitute its judgment for the Commissioner's Id.;Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
The Commissioner is entitled to make any finding that is supported by substantial evidence, regardless whether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91 (1992). Despite this Court's limited function, it must scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence exists to support it. Villa, 895 F.2d at 1022; Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). Any findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).
To be considered disabled and eligible for DIB, plaintiff must show that he is unable "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 twelve months." 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has promulgated regulations that provide procedures for evaluating a claim and determining disability. 20 C.F.R. § 404.1501 to 404.1599 Appendices, §§ 416.901 to 416.998 (1995). The regulations include a five-step evaluation process for determining whether an impairment prevents a person from engaging in any substantial gainful activity. Id. §§ 404.1520, 416.920; Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); Moore v. Sullivan, 895 F.2d 1065, 1068 (5th Cir. 1990). The five-step inquiry terminates if the Commissioner finds at any step that the claimant is or is not disabled. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The five-step analysis requires consideration of the following:
First, if the claimant is currently engaged in substantial gainful employment, he or she is found not disabled. 20 C.F.R. § 404.1520(b), 416.920(b).
Second, if it is determined that, although the claimant is not engaged in substantial employment, he or she has no severe mental or physical impairment which would limit the ability to perform basic work-related functions, the claimant is found not disabled.Id. §§ 404.1520(c), 416.920(c).
Third, if an individual's impairment has lasted or can be expected to last for a continuous period of twelve months and is either included in a list of serious impairments in the regulations or is medically equivalent to a listed impairment, he or she is considered disabled without consideration of vocational evidence. Id. §§ 404.1520(d), 416.920(d).
Fourth, if a determination of disabled or not disabled cannot be made by these steps and the claimant has a severe impairment, the claimant's residual functional capacity and its effect on the claimant's past relevant work are evaluated. If the impairment does not prohibit the claimant from returning to his or her former employment, the claimant is not disabled. Id. §§ 404.1520(c), 416.920(c).
Fifth, if it is determined that the claimant cannot return to his or her former employment, then the claimant's age, education and work experience are considered to see whether he or she can meet the physical and mental demands of a significant number of jobs in the national economy. If the claimant cannot meet the demands, he or she will be found disabled. Id. §§ 404.1520 (f)(1), 416.920(f)(1). To assist the Commissioner at this stage, the regulations provide certain tables that reflect major functional and vocational patterns. When the findings made with respect to claimant's vocational factors and residual functional capacity coincide, the rules direct a determination of disabled or not disabled. Id. § 404, Subpt. P, App. 2, §§ 200.00-204.00, 416.969 (1994) ("Medical-Vocational Guidelines").
The claimant has the burden of proof under the first four parts of the inquiry. Id. If he successfully carries this burden, the burden shifts to the Commissioner to show that other substantial gainful employment is available in the national economy, which the claimant is capable of performing. Greenspan, 38 F.3d at 236;Kraemer v. Sullivan, 885 F.2d 206, 208 (5th Cir. 1989). When the Commissioner shows that the claimant is capable of engaging in alternative employment, "the ultimate burden of persuasion shifts back to the claimant." Id.; accord Selders, 914 F.2d at 618.
The Court "weigh[s] four elements of proof when determining whether there is substantial evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) [her] age, education, and work history." Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995). "The Commissioner, rather than the courts, must resolve conflicts in the evidence." Id.
B. Factual Background
Plaintiff Earl M. Falls testified at his hearings on June 22, 1998 and August 20, 1998 before the ALJ. (Tr. 25-43, 44-57). He was 32 years old at the time, with a high school degree and three years of college. Plaintiff had a number of jobs since that time, but has a great deal of trouble dealing with pressure and stress; he said it brings him to "a state of confusion, a lot of anxiety." (Tr. 34). However, he had very recently, on April 17, 1998, received a certificate in ship fitting from a ""voc. tech. school"." (Tr. 35). He said he had an accident right after that and tore tendons and suffered a partial dislocation of the left shoulder after he fell down some stairs, but was recovering from that and had not been told he could not do certain types of work.
The ALJ decided at this point that he wanted to review the CHNO medical records on this recent injury, which were not in the file, before making a final determination and gave counsel 30 days to provide them. (Tr. 38).
On a typical day, Falls testified that he would wake up and go to a 12 step Alcoholics Anonymous program. He also has counseling once or twice a week at Central City Mental Health Center (CCMHC). He does basic household chores and mows the lawn, but does not go grocery shopping or socialize with anyone other than his grandmother, one or two cousins and an aunt that occasionally come over. He says he has difficulty concentrating and has a very short attention span, which he has had for a very long period of time. He states that at times his depression makes it very hard for him to function. But he also said he thought he could handle jobs that did not involve a lot of stress or pressure or being around people. He stated that being around people made him feel anxious, suspicious, "like nervousness." He also says he doesn't handle criticism very well. (Tr. 41-42).
The ALJ asked vocational expert (VE) Sherry Carthane, in what he referred to as his first hypothetical, whether a person such as plaintiff, who had a slight limitation in three of the four mental abilities required for work, specifically in sustained concentration and persistence, social interaction and adaptation, could perform any jobs. The VE said no, because even in a simple, repetitive job, one must still be able to concentrate in order to perform any type of substantial gainful employment. (Tr. 42-43). After asking counsel for claimant if he had any questions for the VE, the ALJ then closed the hearing.
At the second hearing on August 20, 1998, after the ALJ stated that he had reviewed the supplemental evidence from the Medical Center of Louisiana at New Orleans (CHNO) and verified that claimant was making no claim for any impairment other than depression. (Tr. 46-49). As it turned out, a different VE, Kelly Roberts, was present at this hearing. As it also turned out, the ALJ did not word the hypothetical he presented to this VE in exactly the same manner. Rather, he asked the VE to assume a person such as the claimant should have limited or occasional exposure to the general public, and that the person had mental limitations from depression, but remained able to understand, remember and carry out simple instructions, make simple work related decisions, respond appropriately to supervision, co-workers and ususal work situations, and handle changes in routine work settings appropriately. He asked whether there were any positions that such a claimant could perform. She mentioned a number of light and sedentary jobs in the local economy he could perform. When the hypothetical was expanded to include limited or occasional exposure to the general public, including contact over the telephone, that eliminated all but "miscellaneous food preparation," which would be about 5,200 in Louisiana and 387,000 nationally.
Counsel for plaintiff was allowed to question the VE, and he essentially propounded the hypothetical put forth by the ALJ at the first hearing to the first VE. The VE at this hearing said that 60% to 70% of the food preparation jobs would be eliminated because of the slight impairment in concentration, persistence and pace. (Tr. 57).
C. Medical Evidence
This Court has reviewed the medical records in evidence and the ALJ's summary of the medical evidence (Tr. 14-17), and finds the ALJ's summary of the evidence was, for the most part, correct and incorporates it herein by reference, with the following observations:
Plaintiff presented on May 30, 1997 at the Medical Center of Louisiana (CHNO) with complaints of insomnia and severe worsening depression; he also stated he had feelings of hopelessness and reported a history of physical and sexual abuse. He was given Trazodone and told to follow up with CCMHC. [Tr. 119-124].
Medical records from CCMHC indicate that plaintiff first came to them on June 2, 1997. He was given an adult psychiatric evaluation on July 31, 1997. The records indicate that plaintiff was suffering from major depression, that he was homeless (except for his current residence at Bridge House, a half-way house.) He reported that he had no income, he had no support system and no friends: he said that his problems had isolated him and he again reported suffering sexual abuse as a child. He told them he had three years of college and had been in the Navy for one year and three months [September, 1989 to January, 1991, Tr. 110]. He failed a drug and alcohol rehabilitation program in the Navy, however, and was given less than an honorable discharge. It was recommended that he continue taking the antidepressant medication that he was being prescribed and that he get psychiatric evaluation testing and see a social worker for an appointment. (Tr. 126-135).
Falls was reported to be off drugs and alcohol for approximately four months, according to the adult psychiatric evaluation of July 31, 1997 by CCMHC. He was diagnosed as suffering from major depression at that time. The recommendation was that Falls continue the antidepressant medication he was being given and follow up for treatments and appointments with the social worker. (Tr. 126-135).
CCMHC records reveal that plaintiff attended individual counseling from June 2, 1997 on a regular basis through at least May of 1998 and had regular appointments for medications during the same time period. (Tr. 126, 127, 153-155, and 166-173). He also attended family counseling on November 3, 1997 and November 13, 1997. Id. CCMHC records also reveal that a psychological evaluation was performed on October 9, 1997 by Psychologist Christina C. Scott, Ph.D. Her diagnosis was that Falls suffered major depression, recurrent, severe, without psychotic features. His problems were noted to be educational, economic, housing, and primary support group. Her recommendation was that plaintiff continue medical management; and continue monitoring of progress with a social worker. (Tr. 168-169).
Dr. Helen E. Ullrich, Ph.D., M.D., reported on an interview that she conducted with Falls on December 19, 1997. He told her that he had a problem with depression for years but had been reluctant to seek help. He first sought help in May of 1997, at a time when he became suicidal. He now reports that he has a bad day or two here and there, but since the current medication he has improved greatly. Falls reported being interested in reading, math, listening to music and also that he plays the clarinet, saxophone, flute and drums. He played in a concert band in high school, and at Dillard, he played in a jazz ensemble where he played tenor sax and the clarinet. He stopped playing after he left school and transferred from Dillard to Southern University for engineering. He developed personal problems and lost confidence. He was put on academic probation for one semester in 1987. Falls reported a family history of depression in an aunt and a cousin and also reported that his maternal grandfather was an alcoholic. At this time, he is estranged from his family. His brother is a pharmacist and his sister is a nurse. "I'm from a good family. They look at me as being a failure." He noted to the doctor that he had failed a urinalysis in the Navy so his discharge [in 1991] was other than honorable. Plaintiff has lived with his maternal grandmother since age 13, as he never got along with his father who was physically and verbally abusive. For instance, his father used to beat plaintiff with his fists. At this time, he is not on talking terms with his father.
Dr. Ullrich's diagnosis was as follows:
"Mr. Falls gives the impression of being a sincere goal directed man who is doing something about his history of substance abuse and dependence. In addition, he is being treated for a major depressive episode with appropriate medication.
In my opinion, Mr. Falls, should be awarded financial assistance, is capable of handling his own money. I think he would be best served by completing college and then going on into a profession of his choice. He appears to have the intelligence. The question is whether he will stay away from substances. He appears to be responsive to the current therapy and I would argue that he should be given the benefit of the doubt with regard to managing his own funds, however, perhaps consultation with a social worker before final decision about disability and whether he should manage his own money would be a wise move." (Tr. 138).
Five days later, on December 24, 1997, plaintiff was evaluated by a DDS physician using one of the DDS psychiatric review technique forms where the doctor for the most part merely checks off certain areas. Although the doctor noted that plaintiff was suffering from major depression (Tr. 142), he "checked off" that the impairment was not severe. (Tr. 139). The doctor also "checked off" that plaintiff had affective disorders and substance addiction disorders. Id. In the section dealing with the rating of impairment severity, the doctor only noted a slight degree of limitation with regard to plaintiff's restriction of activities of daily living. With regard to all other categories listed under functional limitation, the doctor found plaintiff suffered from no degrees of limitation. (Tr. 146).
On January 29, 1998, a psychiatric reassessment form was filled out and the interview was conducted by a physician. It was found that plaintiff reported some good days and some bad days, that his sleep was fair, that he had a normal appetite. He was no longer complaining of crying spells. He did report occasional suicide ideation, though not for the last few weeks prior to this interview. At that time, he reported that he was living with his grandmother, that he had no income, and that he was trying to get disability. Patient was found to be pleasant, polite, and cooperative, and also exhibited good eye contact. His affect was noted to be constricted, but he had good grooming and his thoughts seemed logical and goal directed. The current diagnosis was major depression but the impairment was noted to be moderate and the prognosis was noted to be fair. (Tr. 152) (Emphasis added).
It was noted in the progress notes from CCMHC on March 19, 1998 that plaintiff was doing well and feeling pretty good, that he was sleeping fairly well and had a good appetite. He also reported no crying spells, and although he had some thoughts of suicide, they were passive thoughts, and he had not had any lately. He reported some paranoia, and feels his conscience talking to him. His affect was found to be appropriate, his thoughts logical and goal directed. The plan was to continue current medications at the current level and to return on May 14, 1998. (Tr. 167) (Emphasis added).
On the next DDS Psychiatric Review Technique form filled out on March 18, 1998, the doctor also noted that plaintiff suffered from an impairment which he showed to be not severe and from substance addiction disorders. (Tr. 157). The doctor further noted under affective disorders that the plaintiff suffered from depression, secondary to alcoholism, but that it was "in remission." (Tr. 160). The doctor at that time indicated no degrees of limitation with regard to functional limitations. (Tr. 164).
The only other medical evidence of record is from CHNO when plaintiff went twice in April of 1998 to the emergency room. The first time was for bilateral eye burning which was apparently caused while plaintiff was welding, apparently while attending welding school. He was given eye drops containing Gentamycin and Lortab #5 for pain. (Tr. 196-199). He was again treated on April 18, 1998 for a fall down approximately fourteen steps where he suffered a laceration on his chin, as well as pain in the back of his head, left shoulder and hip. X-rays were conducted and no fractures or other injuries were found except for the laceration. (Tr. 183).
Plaintiff testified that he attended a ship fitting/welding class in April, 1998 at a "voc. tech. school". (Tr. 35).
The Court notes at this point that the ALJ found that at at least one intake sheet on this occasion indicated that alcohol was involved, citing Exh. 8F/11 [Tr. 184]. The Court believes this finding to be incorrect, as the handwritten record at that page indicates ETOH, which the Court knows from reviewing an abundance of medical records, means "No Alcohol." There is a note right next to that notation which seems to read "Last times 2 months ago." This may or may not indicate that plaintiff last used alcohol two months ago; at any rate, it does not mean that alcohol was involved in this particular accident, and the court could find no other reference in the hospital records from this incident that would indicate alcohol was involved. (Tr. 177-187).
D. Legal Argument
As noted above, plaintiff characterizes the issue in this case as whether or not plaintiff was denied a fair hearing, and whether or not the ALJ improperly rejected the opinion of the vocational expert in the first hearing in favor of the vocational expert in the second hearing. The Court notes, first of all, that the ALJ decided during the initial hearing to hold the case open for an additional 30 days to obtain and review recent medical records from CHNO when plaintiff was injured in a fall. He did this before asking the hypothetical of the VE. Then, when he did propose the hypothetical to her, he stated it was "hypothetical I." He did not, for some reason, at that time go on to propose any further hypotheticals to her. Perhaps it was because he had already announced he was holding the case open for 30 days and wanted a chance to review the additional medical evidence before proposing any additional hypotheticals. Regardless, he did hold a second hearing and did word the hypothetical differently, and this time a different VE was present. While this is not the scenario the Court would prefer, it nevertheless has determined that plaintiff was not denied a fair hearing and that the ALJ did not "improperly" reject the opinion of the first VE in favor of that of the second.
First of all, it is the ALJ's duty, not the vocational expert's, to assess a claimant's RFC. Randall v. Sullivan, 956 F.2d 105, 106 (5th Cir. 1992) (citing 20 C.F.R. § 404.1546). The ALJ is not bound by VE testimony which is based on evidentiary assumptions ultimately rejected by the ALJ. See Owens v. Heckler, 770 F.2d 1276, 1282 (5th Cir. 1985). Therefore, the ALJ was free to conclude that the evidentiary assumption that plaintiff had a slight impairment in mental abilities in "sustained concentration and persistence, social interaction and adaptation" was incorrect, and therefore the first VE's opinion based on that particular evidentiary assumption was not binding on the ALJ.
Secondly, a hypothetical question is defective and will not be allowed to stand unless it reasonably incorporated all of the disabilities recognized by the ALJ, "and the claimant or his representative is afforded the opportunity to correct deficiencies in the ALJ's question by mentioning or suggesting to the vocational expert any purported defects in the hypothetical questions (including additional disabilities not recognized by the ALJ's findings and disabilities recognized but omitted from the question)." Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994). The assumptions presented by the ALJ to the second VE in this case reasonably incorporated all of the disabilities recognized by the ALJ; moreover, the claimant's attorney was afforded the opportunity to correct any defect in the hypothetical to the second VE.
Thirdly, while the Court has no doubt that this plaintiff has gone through an extremely difficult period in his life, and was for a time suffering from a very severe depression, he now seems to have taken control of his life, gotten the help he needed, and was, at the time of the hearing, well on the way to recovery. In addition, he was able to take and successfully complete a course in pipe fitting in April of 1998, just two months prior to the hearing. This Court believes that this, along with the other evidence of record, indicates that plaintiff has the persistence, concentration and pace, along with sufficient social skills, to perform at least all of the jobs listed by the ALJ.
CONCLUSION
Substantial evidence in the record supports the ALJ's decision that the limitations resulting from Falls' impairments were not so severe as to be debilitating and that he has the residual functional capacity to perform the type of work activity set forth in the ALJ's opinion, which is available in the national economy, with the restrictions noted in the ALF's opinion.
Accordingly, IT IS ORDERED that plaintiff's complaint be and is hereby DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 28th day of March, 2000.