Opinion
Civil Action No. 00-0023, Section "C" (4)
April 10, 2001
ORDER AND REASONS
Before the Court is the Report and Recommendations of the Magistrate Judge, affirming the denial of disability benefits to Plaintiff Green by the Administrative Law Judge (hereinafter "ALJ"). For the foregoing reasons, the Court vacates the decision of the ALJ and remands with instructions.
Background
Johnny Green first applied for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. (hereinafter "Act") on November 27, 1990, alleging an inability to work beginning December 11, 1989 because of back problems, neck problems and loss of sight in his left eye resulting from a car accident. On March 12, 1992, ALJ Kunderer conducted a hearing, and on September 23, 1992, denied Plaintiffs application for benefits, finding that Plaintiff was not disabled as defined by Title II of the Act. The Appeals Council vacated this decision on May 11, 1992, and remanded the case, instructing the ALJ to (1) obtain additional evidence from Dr. Manale, Plaintiffs treating physician, about Green's neck and back problems since July 1991, (2) evaluate Plaintiffs subjective complaints according to the Social Security Rulings and regulations pertaining to the evaluation of symptoms, (3) give further consideration to claimant's residual functional capacity, (4) give further weight to the treating source opinion and provide good reasons for the weight given such opinion evidence, and (5) obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on claimant's occupational base, inter alia, by using hypothetical questions that reflect the Plaintiffs specific capacity and limitations as established by the record as a whole.
See Decision in the Case of Johnny B. Green, September 23, 1992 (hereinafter "1992 ALJ Decision") (Rec. pp. 184-92).
See Order of Appeals Council, May 11, 1993 (Rec. pp. 212-14).
On May 20, 1994, ALJ Kunderer held a second hearing, and again found the Plaintiff ineligible for disability benefits under the Act. On review, the Appeals Council again vacated and remanded the case. This time, however, they directed that the case be reassigned to another ALJ. Further, the Council directed the next ALJ to (1) consider the testimony of Dr. O'Keefe as that of a treating physician, pursuant to 20 C.F.R. § 404.1527, (2) obtain evidence from an impartial medical expert to aid in determining the nature and severity of Plaintiffs impairments and the limitations imposed by these impairments, and (3) if warranted, obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base, citing Social Security Ruling No. 83-14. The Council reiterated that the ALJ "must ensure that the hypothetical questions reflect the specific capacity/ limitations established by the record as a whole."
See Decision in the Case of Johnny B. Green, August 22, 1994 (hereinafter "1994 ALJ Decision") (Rec. pp. 267-75).
See Order of Appeals Council, May 26, 1996 (Rec. pp. 295-96).
The third hearing was conducted by ALJ Torres on January 28, 1997, with a supplemental hearing held on August 12, 1997. In his March 14, 1998 ruling, the ALJ denied Plaintiffs application for benefits, finding that there were jobs available that matched Plaintiffs residual functional capacity, and therefore, Plaintiff did not meet the statutory definition of disabled. In reaching this conclusion, the ALJ found that the testimony of Doctors Manale and O'Keefe, Green's treating physicians, "was not supported by the weight of the objective medical evidence of record." In determining that there were other jobs available in the economy that Plaintiff was capable of performing, the ALJ presented the vocational expert with the following hypothetical:
See Decision in the Case of Johnny B. Green, March 14, 1998 (hereinafter "1998 ALJ Decision") (Rec. pp. 15-31) at 10 (Rec. p. 24).
An individual who has the same age, education and work experience as the claimant, who can perform light work activity with the following non-exertional limitations and restrictions: no repetitive bending or crawling; no repetitive climbing ladders, scaffolds, or unprotected heights; no prolonged stooping; should avoid repetitive use of the upper extremities for overhead work; should not operate hazardous machinery that requires accurate depth perception; and unable to follow complex, technical tasks but able to follow simple and detailed instructions not involving an extremely high stressful work environment during an 8 hour work day.
See id. at 14 (Rec. p. 28). For the actual hypothetical posed by the ALJ, see Transcript of August 12, 1997 Hearing at 26 (Rec. p. 502).
The vocational expert found that there were approximately 12,000 entry level manager positions in Louisiana, 6,000 of which would allow Plaintiff to alternate sitting/standing positions. The 7,800 other jobs cited by the vocational expert — dispatchers (3,000), customer service representatives (2,000), purchasing agents (800), maintenance schedulers (1,000), and security monitors (1,000) — also allowed the employee to alternate positions. Plaintiffs counsel asked the expert to revise her recommendation assuming instead that the hypothetical claimant could sit for a maximum of one hour at a time and for no more than four hours total in an eight hour workday. The vocational expert found that the claimant would not be eligible for any of the 6,000 managerial positions previously described by her. Plaintiffs counsel also proposed a hypothetical where claimant has problems with his memory and concentration, and the vocational expert again noted that the number of jobs for which the claimant was be eligible would be reduced. The ALJ rejected Plaintiffs revised hypothetical, however, finding that "the restrictions and limitations set forth by claimant's attorney to the vocational expert are not borne out or supported by the medical evidence and therefore are not credible." The Appeals Council affirmed the ALJ's decision on December 10, 1999, and Plaintiff appealed to federal court. The matter was referred to the Magistrate Judge, and on February 22, 2001, the Magistrate Judge issued a Report and Recommendation that the ALJ's denial of benefits be affirmed. Plaintiff objected to the following determinations made by the Magistrate Judge: (1) the determination that the ALJ's hypothetical question to the vocational expert was not fatally flawed for failure to properly and adequately incorporate all documented impairments; and (2) the determination that the ALJ used the proper legal analysis in rejecting the treating physician's opinions and that he did not err in making that finding. The Court considers these objections in turn.
See Transcript of August 12, 1997 Hearing at 27 (Rec. p. 503).
See id.; see also 1998 ALJ Decision at 14, 17 ¶ 18 (Rec. pp. 28, 31).
See Transcript of August 12, 1997 Hearing at 28 (Rec. p. 504).
See id. at 29 (Rec. p. 505)
1998 ALJ Decision at 14-15 (Rec. pp. 28-29).
See Order of Appeals Council, December 10, 1999 (Rec. pp. 8-9).
Standard of Review
This Court reviews the Report and Recommendation of the Magistrate Judge de novo. See 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72(b). However, the function of this Court on judicial review under 42 U.S.C. § 405 (g) is limited to determining whether there is substantial evidence in the record to support the Commissioner's decision, and whether the Commissioner applied the appropriate legal standards in reaching the decision. See Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). "The Court may not reweigh the evidence nor may it substitute its judgment for the Secretary's. . . . Nonetheless, the court must scrutinize the administrative record to determine if substantial evidence does indeed support the Secretary's decision." Neal v. Bowen, 829 F.2d 528, 530 (5th Cir. 1987). "This is so because `substantial evidence' is less than a preponderance but more than a scintilla." Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1995). The Commissioner's final decision must be upheld if it is supported by substantial evidence. See 42 U.S.C. § 405 (g).
The plaintiff bears the burden of proving that he is disabled within the meaning of the Social Security Act, 42 U.S.C. § 423 (d). Once the plaintiff has satisfied the initial burden of showing that he cannot perform his previous work, the Secretary bears the burden of establishing that the claimant is capable of performing substantial gainful activity and is therefore not disabled. See Neal, 829 F.2d at 528. The determination is guided by a five-step sequential procedure set forth in 20 C.F.R. § 404.1520 (b)-(f):
1. If a person is engaged in substantial gainful activity, he will not be found disabled regardless of medical findings;
2. A person who does not have a "severe impairment" will not be found to be disabled;
3. A person who meets the criteria in the list of impairments in Appendix 1 of the Regulations will be considered disabled without consideration of vocational factors;
4. If a person can still perform his past work, he is not disabled;
5. If a person's impairment prevents him from performing his past work, other facts, including age, education, past work experience, and residual functional capacity must be considered to determine if other work can be performed.
Plaintiff may be found conclusively ineligible for disability benefits under either step one, two or four, thereby ending the analysis. See Lovelace v. Bowen, 813 F.2d 55, 58 n. 15 (5th Cir. 1987). Likewise, if Plaintiffs disability is one that has been identified in Appendix 1, he is entitled to benefits without further assessment of vocational factors. See id. It is undisputed that Plaintiff cannot perform his previous work as a gas lift specialist, a pumper/gauger and a roustabout, and therefore Step 4 is not implicated. Plaintiff has not been engaged in substantial gainful activity since 1989, thereby averting a finding of ineligibility under Step 1. However, his alleged mental and physical disabilities are not of the kind that have been specified in Appendix 1, which precludes an automatic finding of eligibility under Step 3. This case hinges on the fifth factor — namely, whether, in spite of his impairments, Plaintiff can perform other work available in the economy.
See also 1998 ALJ Decision at 16 617 (Rec. p. 30).
Treating Physician's Testimony
Social Security Ruling 96-2 provides the standard for evaluating the opinion of a treating physician. The Ruling states, in pertinent part:
If a treating source's medical opinion is well-supported and not inconsistent with the other substantial evidence in the case record, it must be given controlling weight; i.e., it must be adopted. A finding that a treating source's medical opinion is not entitled to controlling weight does not mean that the opinion is rejected. It may still be entitled to deference and be adopted by the adjudicator.
The Ruling defines various terms pertinent to the Court's analysis. "Controlling weight" which requires adoption applies when the opinion comes from a treating source, is a "medical opinion," is "well-supported" by "medically acceptable" clinical and laboratory diagnostic techniques and is "not inconsistent" with the other "substantial evidence" in the individual's case record. "If any of the above factors is not satisfied, a treating source's opinion cannot be entitled to controlling weight . . . However, when all of the factors are satisfied, the adjudicator must adopt a treating source's medical opinion irrespective of any finding he or she would have made in the absence of the medical opinion." Id.
The Regulations, 20 C.F.R. § 404.1527 (d), offer five factors that an ALJ must consider in deciding the weight to be given to a medical opinion: (1) examining relationship; (2) treatment relationship — including (i) the length of the treatment relationship and (ii) the frequency of examination, and the nature and extent of the treatment relationship; (3) supportability of the treating source's opinion; (4) consistency of the opinion with the record as a whole; and (5) the treating physician's specialization. The Regulations explain why the opinion of a treating physician is entitled to special deference:
Subdivision (6) also allows for the consideration of any other relevant factor.
Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examination, such as consultative examinations or brief hospitalizations.20 C.F.R. § 404.1 527(d)(2) Because of the strong preference in favor of treating physicians, the Regulations specify that "[w]hen we do not give the treating source's opinion controlling weight, we apply the factors listed in paragraphs (d)(2)(i) and (d)(2)(ii), as well as the factors in paragraphs (d)(3) through (d)(6) of this section in determining the weight to give the opinion." Id.
Although the Magistrate Judge cited other evidence in the record that arguably contradicts the opinions of Doctors Manale and O'Keefe, the Court finds that the ALJ did not provide a thorough analysis of all of the factors that must be considered before disregarding the otherwise controlling assessment of the treating physicians. For example, the Court notes that Dr. Manale was Plaintiffs treating physician since 1990, and saw Plaintiff regularly every other month for seven years. In light of their continuous treatment of Plaintiff and familiarity with the ebb and flow of his symptomology over the last seven years, Doctor Manale and O'Keefe were uniquely positioned, as Plaintiffs treating physicians, to assess the nature of Plaintiffs injuries and the severity of Plaintiffs pain. These are exactly the kinds of assessments made by a treating physician that the Regulations suggest are entitled to deference. A more balanced review of the full record than that provided by the ALJ in his opinion also demonstrates that Doctor Manale's and Doctor O'Keefe's recommendations are supported by significant evidence, notwithstanding the fact that other physicians — namely, those whom the Plaintiff saw at the request of the Disability Determination Services — came to different conclusions. Furthermore, the Court finds that the ALJ erred when it stated that Dr. O'Keefe failed to support his recommendations with any records from his office. The record had established that Doctors Manale and O'Keefe shared an office and the Dr. O'Keefe worked from the same file regarding Plaintiffs case when Dr. Manale was unavailable. Therefore, when Dr. Manale provided the Court with his records, these records also provided the foundational support for Doctor O'Keefe's assessments as well. For this reason, the Court finds that the ALJ erred when he failed to justify adequately his decision not to give the recommendations of the treating physicians controlling weight, and his decision to virtually disregard those opinions in their entirety.
See 1998 ALJ Decision at 10-11 (Rec. p. 24-25).
See id. at 4 (Rec. p. 18).
See id. at 6-7 (Rec. p. 20-21).
Citing Plaintiffs failure to pursue surgery as a reason for denying his claim, see Report and Recommendations at 28, 33, seems particularly unjust in light of his repeated statements that he has been financially precluded from pursuing treatment he would have otherwise preferred to receive. See, e.g., Transcript of May 20, 1994 at 12 (Rec. p. 347).
Documentation of Dr. Manale's treatment of Plaintiff is interspersed throughout the record. See, e.g., Rec. pp. 138, 141, 142-44, 149, 152, 153-54, 156, 230-31, 234, 237, 257-63, 396-407, 409-10, 429-32, 440-45. However, the Court also emphasizes that Doctor Manale's and Doctor O'Keefe's assessments are also independently verified by other practitioners who treated Plaintiff, including, inter alia, Cindy Harris, a licensed rehabilitation counselor.
The Plaintiff saw the following physicians at the instruction of the Disability Determination Services ("DDS"): Dr. Williams, Dr. Fontenelle, Dr. Landry, Dr. Mason, Dr. Rumage, and Dr. Sanders. The ALJ relied almost exclusively on the opinions of these physicians in determining that Dr. Manale and Dr. O'Keefe were incorrect in their assessment of Plaintiffs condition. See 1998 ALJ Decision at 12-13 (Rec. p. 26-27). However, the Court finds that the opinions of Dr. Manale and Dr. O'Keefe were adequately supported by the record. The fact that the record also contained conflicting opinions by the numerous other doctors whose services were retained by the DDS is insufficient to justify deviation from the Regulation's clear mandate that the opinion of the treating physician be given controlling, or at a minimum, substantial weight.
See id. at 11 (Rec. p. 25) ("The undersigned notes that as of the date of the instant decision, Dr. O'Keefe has not submitted any medical records or test results regarding claimant during the time period specified to support his conclusory statement of `disabled.'").
See Testimony of Dr. O'Keefe (Rec. p. 364).
Hypothetical Posed to Vocational Expert
The hypothetical posed to the vocational expert by the ALJ must fairly and reasonably incorporate all the plaintiffs impairments, or the determination of non-disability based on such a defective question cannot stand. See Bowling, 36 F.3d at 436. The ALJ found that Plaintiff suffered from an affective disorder, namely major depression. The ALJ also found that the Plaintiff "seldom to often" suffers from deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner (in work settings or elsewhere). However, the ALJ did not include any of these factors in his hypothetical to the vocational counselor. Furthermore, the ALJ only presented a hypothetical where the claimant had limited depth perception, rather than where the claimant was actually blind in one eye, which is a more accurate characterization of Plaintiff's condition. When Plaintiffs counsel amended the hypothetical to include these characteristics, the counselor clearly indicated that her assessment would be affected, and, in particular, that an impairment of memory or concentration would preclude the jobs for which she had found Plaintiff eligible. The Magistrate Judge determined that the ALJ's errors were harmless because Plaintiff's counsel had the "opportunity to correct the problem and did so." However, an "opportunity to correct the problem" is rendered meaningless if the amended assessment by the vocational counselor is subsequently ignored by the ALJ. The Court finds that the ALJ erred when it failed to pose a hypothetical that "incorporate[d] reasonably all the disabilities of the claimant recognized by the ALJ." Bowling, 36 F.3d at 436. Conclusion
See OHA Psychiatric Review Technique Form (Rec. p. 32-34).
See id. Notably, Judge Kunderer made the same assessment regarding Plaintiffs mental deficiencies. See 1992 ALJ Decision (Rec. p. 200).
See Transcript of August 12, 1997 Hearing at 26 (Rec. p. 502).
See id. The Court is uncertain whether blindness in one eye would render one absolutely unfit for the position of security monitor, but posits that there is a difference between "depth perception" and partial blindness for the purposes of evaluating a claimant's ability to perform this job.
See Report and Recommendations at 40 (citing Bowling v. Shalala, 36 F.3d 431 (5th Cir. 1994)).
In this case, the vocational counselor determined that certain jobs would be totally precluded by an impairment in memory and concentration, and the number of other jobs ostensibly available would be reduced. See Transcript of August 12, 1997 Hearing at 29 (Rev. p. 505).
The Court also finds that the ALJ's erroneous determination of which disabilities were necessary to render the hypothetical accurate related in part to his failure to accord the appropriate deference to the treating physicians' assessments.
Under normal circumstances, the Court would vacate and remand this case for further adjudication by the ALJ. However, this matter comes to the Court after Plaintiffs third unsuccessful attempt to have the merits of his claim adjudicated without legal error. After ten years of litigation on this claim, the Court finds that "the record has been fully and fairly developed." See Frey v. Bowen, 816 F.2d 508, 518 (10th Cir. 1987). Therefore, this Court exercises its right to remand with the direction that disability benefits be awarded. See id. (vacating Secretary's decision with instructions to award benefits after noting that "[m]ore than six years have passed since [claimant] first applied for disability benefits under the Social Security Act. This is the second appeal of his claim to this court, following two administrative hearings and two reviews by the Appeals Council. . . . We can see nothing to be gained by remand for further hearing; further administrative proceedings would only prolong an already too lengthy process and delay the long-overdue receipt of benefits.").
There appears to be one remaining dispute, however, as to the appropriate period of Plaintiff's disability insurance coverage. The ALJ found that Plaintiff "met the disability insurance status requirements of the Act of the alleged onset date of December 11, 1989 and through December 31, 1994, which is the end of the adjudication period." However, this Court cannot discern the basis for the ALJ's selection of December 31, 1994 as the cutoff date of Plaintiff's insurance coverage. To the extent that this determination was based on the finding that Plaintiff was not disabled after that date, the Court finds, as explainedsupra, that Plaintiff has met his burden of proving — through the testimony of his treating physicians and other practitioners — that he remains disabled to the present. However, the Court instructs the ALJ to clarify with specificity any other reason under 42 U.S.C. § 416 (i) and 423 why Plaintiff would not be eligible for disability benefits after December 31, 1994.
See 1998 ALJ Decision at 2-3, 15 ¶ 2 (Rec. pp. 16-17, 29).
The record indicates that Plaintiff originally agreed to modify his application for benefits to include only a closed period of disability ending in January 1995, in the hopes of facilitating resolution of this case. See Rec. pp. 447-48. However, Plaintiff, at the advice of counsel, withdrew his request so as not to be placed in the potentially contradictory position of arguing that he is no longer disabled in these proceedings, while maintaining his disability in other fora. See Transcript of August 12, 1997 Hearing at 1-5 (Rec. pp. 477-81). During the 1997 hearing and in his 1998 decision, the ALJ granted Plaintiff's request to withdraw his motion for a closed period of disability. Therefore, Plaintiff and his treating physicians continue to maintain that he is totally disabled to the present day. The relevant standard for determining when Plaintiffs period of disability ends is found at 42 U.S.C. § 416 (8)(2)(D).
Therefore, IT IS ORDERED that this Court REVERSES AND REMANDS with the direction that disability benefits be immediately awarded Plaintiff for the period beginning on December 11, 1989 until December 31, 1994. Furthermore, the ALJ is directed to make a prompt determination of Plaintiff's eligibility for benefits from January 1, 1995 until the present day, in a manner not inconsistent with this Ruling.