Opinion
No. 1:03-CV-222.
December 1, 2004
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case is referred to the undersigned United States Magistrate Judge for review, hearing if necessary, and submission of a report with recommended findings of fact and conclusions of law.
See 28 U.S.C. § 636(b) (1) (B) (2001) and Loc. R. CV-72 App. B, R.1 (H) for the Assignment of Duties to United States Magistrate Judges, and Beaumont General Order 03-02.
I. NATURE OF THE CASE
Plaintiff seeks judicial review of the Commissioner of Social Security Administration's (SSA) decision denying plaintiff's application for Supplemental Security Income (SSI). Title 42 U.S.C. § 405 authorizes United States district courts to conduct judicial review of the Commissioner's final decisions regarding applications for social security benefits. 42 U.S.C. § 405 (2003).Judicial review is limited. The court's abbreviated role is to determine whether (a) the Commissioner applied proper legal standards and (b) the decision is supported by substantial evidence. See Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992). If proper principles of law were applied, and if the Commissioner's decision is supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed.Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co., 305 U.S. 197, 230, 59 S. Ct. 206, 217, 83 L.Ed. 126 (1938)); see also, 42 U.S.C. § 405(g).
By local orders of the court, complaints seeking judicial review of administrative decisions denying applications for social security benefits are treated as appeals. The party seeking review is required to specify alleged points of error, and to submit a brief containing legal arguments directed to those points. The Commissioner is ordered to file a brief in response. The court limits the scope of its judicial review to the points argued in the briefs. See Order Directing Filing of Briefs (Docket No. 13) and Notice to Parties in Social Security Appeal Cases (Docket No. 12).
Judicial review of a decision denying Social Security benefits based on physical or mental disability is colored by the statute's stringent definition. The Act defines disability as inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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). This imposes on Social Security claimants a formidable burden of proof, "so stringent that it has been described as bordering on the unrealistic." Oldham v. Schweiker, 660 F.2d 1078, 1083 (5th Cir. 1981). Thus, when limited scope of judicial review is factored in with a definition so narrow that persons who are disabled in a general sense do not qualify for benefits, the judicial review process is enormously deferential to the Commissioner's decision.
II. PROCEEDINGS
Plaintiff applied for SSI on May 8, 2000 (Tr. 50-3), claiming disability due to "open heart surgery" (Tr. 50). In a "Reconsideration Disability Report," plaintiff also listed severe depression as an impairment (Tr. 99).
Plaintiff's claim was denied initially (Tr. 20) and upon reconsideration (Tr. 21). Plaintiff then requested a hearing before an administrative law judge ("ALJ") (Tr. 30). ALJ Christopher K. Bullard convened an evidentiary hearing on November 19, 2002, at which plaintiff appeared and testified. Plaintiff was represented at the hearing by attorney Jonathan Healy, Esq. ALJ Bullard also received testimony from Dr. Giao N. Hoang, a medical expert (ME); and Patricia A. Cowen, a vocational expert ("VE"). The remaining evidentiary record consisted of plaintiff's subjective testimony; medical records of his treatment from March, 2000, through February, 2002, including those from plaintiff's treating cardiologist, Dr. Scott Sherron, M.D.; two psychiatric review technique forms from non-examining physicians; and a consultative report from examining physician, Dr. Nehme Alkarra, M.D.
Dr. Giao N. Hoang, M.D., of Houston, Texas, is board certified in internal medicine. Tr. 47.
A medical advisor, at the request of the Social Security Administration, reviews the claimant's medical records and then gives an expert opinion as to the extent of claimant's impairment. See 20 C.F.R. § 416.927(f)(2)(iii) (2004). When a medical professional functions as an expert witness rather than an advisor in the course of an administrative law judge hearing, Social Security Ruling 96-6p designates such professional as a "medical expert." Soc. Sec. R. 96-6p, 1996.
In the instant case, the administrative record identifies Dr. Hoang as a "medical expert." Tr. 29.
Ms. Cowen is a Certified Rehabilitation Counselor and Certified Vocational Evaluator Specialist. Tr. 44.
Vocational Experts are utilized by the ALJ to "assess whether jobs exist for a person with the claimant's precise abilities." Gilliam v. Califano, 620 F.2d 691 (8th Cir. 1980). The VE's testimony must: (1) assess the effect of any limitation on the range of work at issue; (2) advise whether the impaired person's residual functional capacity permits him or her to perform substantial numbers of occupations within the range of work at issue; and, (3) identify jobs if they exist and provide a statement of the incidence of such jobs in the region in which the person lives. See Ellison v. Sullivan, 921 F.2d 816 (8th Cir. 1990).
The "Psychiatric Review Technique Form" (PRTF) is a Social Security Administration document which adjudicators utilize to assess a claimant's mental capacity to perform work activities, in compliance with regulations. See Soc. Sec. R. 96-8p (1996);see also Boyd v. Apfel, 239 F.3d 698, 705 (5th Cir. 2001). The form provides a scale to evaluate each of the following factors: restrictions of activities of daily living and difficulties in maintaining social functioning; deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner (in work settings or elsewhere); and episodes of deterioration or decompensation in work or work-like settings which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms.
A consultative physician is a physician who performs a discrete individual examination of the plaintiff at the request of Social Security Administration. See 20 C.F.R. § 416.919 (2004).
ALJ Bullard issued a written decision on December 27, 2002, concluding that plaintiff was not disabled. The Appeals Council denied plaintiff's request for review of the decision on February 28, 2003. Plaintiff timely initiated this suit in federal district court on April 16, 2003 (Docket No. 1).
III. THE ADMINISTRATIVE DECISION
Regulations require a five-step sequential analysis for initial disability determinations. If a claimant is found not disabled at any step, remaining steps are not considered. 20 C.F.R. § 416.920 (2004). The burden is on claimants at every stage, except at Step Five. Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002); Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987). The five-step sequential analysis model is approved by courts.
See Bowen v. Yuckert, 482 U.S. 137, 153, 107 S. Ct. 2287, 2297, 96 L.Ed.2d 119 (1987) (citing Heckler v. Campbell, 461 U.S. 458, 461, 103 S. Ct. 1952, 1954, 76 L.Ed.2d 66 (1983)) (The use of the sequential evaluation process "contribute[s] to the uniformity and efficiency of disability determinations").
ALJ Bullard found it necessary to address all five steps. He concluded that plaintiff has severe impairments consisting of ischemic heart disease, chronic obstructive pulmonary disease, and angina (Tr. 13) which, although not presumptively disabling, impair plaintiff's ability to perform his past relevant work. Tr. 14-15. He concluded, however, that plaintiff retains residual functional capacity for light work (Tr. 15), and — based on VE Cowen's testimony — concluded that plaintiff can perform alternative jobs that are available in substantial numbers in the national economy (Tr. 16). Specifically, ALJ Bullard found that plaintiff can perform work as an assembler, sorter, or packager. In each category 1,000 jobs exist regionally and 200,000 nationally. Tr. 16.
The five steps are as follows:
1. The Commissioner ascertains whether the applicant is currently engaging in substantial gainful activity. (If so, a finding of non-disability is entered and the inquiry ends.)
2. The Commissioner determines if the applicant's impairment or combination of impairments is severe, that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities. (If not, the inquiry ends and a finding of non-disability is entered.)
3. The Commissioner determines whether the severe impairment equals or exceeds those in the Listing of Impairments, 20 C.F.R. Subpt. P, Appendix 1 ("the Listings"). (If so, disability is presumed and benefits are awarded.)
4. The Commissioner determines whether the impairment prevents the individual from engaging in his regular previous employment. (If so, a prima facie case of disability is established and the burden of going forward (to the fifth step) shifts to the Commissioner. See Chaparro v. Bowen, 815 F.2d at 1010.
5. The Commissioner determines whether other work exists in the national economy which the applicant can perform. (If the Commissioner establishes that an applicant can perform alternative employment, the burden shifts back to the applicant to show he cannot perform the alternative labor. See Id.; Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986); 20 C.F.R. § 416.920 (a)-(g) (2004)).
Crucial to this proceeding is ALJ Bullard's determination at Steps Four and Five that plaintiff has "residual functional capacity" for "light work." ALJ Bullard relied on evidence from ME Hoang that plaintiff's condition does not meet Listing 4.04 (Tr. 363) and that plaintiff can perform work at the light exertional level (Tr. 370). He rejected a treating physician's opinion that plaintiff "is unable to work in any meaningful capacity due to class II-III angina" (Tr. 338). He also discounted as not credible plaintiff's subjective testimony that, when attempting to work at home, constant pain and breathing difficulty prevent him from doing much of anything for any amount of time (Tr. 350).
In response to his attorney's question regarding ability to work at home, plaintiff testified:
"I pretty much anything up to any amount of time."
Tr. 350. Read in context, however, plaintiff clearly meant that is unable to perform any work around the house for any length of time. Plaintiff testified that he has "chest pains pretty much all the time" (Tr. 347), for which he takes nitroglycerin and Imdur (Tr. 350-51). He testified that sometimes his wife must assist him in rising from bed, that he no longer hunts or fishes (Tr. 349), that his wife does all shopping but never leaves him alone (Tr. 350). He further testified that he cannot maintain his yard and cannot pull his trash barrel to the end of his driveway because does not "have the wind" (Tr. 350). Plaintiff testified that he takes Paxil for depression (Tr. 349) but has never seen a mental health professional (Tr. 356). Plaintiff testified that he admitted himself to "detox" treatment for alcohol abuse in the 1980's (Tr. 356) but denied that he abuses alcohol or was ever "treated for alcohol abuse" (Tr. 358). In response to ALJ Bullard's question regarding medical evidence of "ethanol abuse," plaintiff responded that he has sought treatment at the hospital when drinking. Tr. 358.
IV. POINTS OF ERROR
Plaintiff asserts seven points of error, recited verbatim in the note. For ease of analysis, plaintiff's points — restated and reordered — are as follows:
A: The Commissioner deprived plaintiff of due process of law by failing to provide an adequate administrative record and thus rendering judicial review unworkable;
B: The Commissioner failed to apply proper principles of law because ALJ Bullard failed to:
1. Evaluate plaintiff's treating physician's opinion as required by Regulation 20 C.F.R. § 416.927(d)(2) and Ruling 96-5p;
2. Evaluate plaintiff's subjective complaints of pain as required by Regulation 20 C.F.R. § 416.929(c)(3) and Ruling 96-7p;
3. Perform a function-by-function assessment of plaintiff's residual functional capacity as required by Ruling 96-8p; and
4. Consider all of plaintiff's impairments in combination when assessing their severity; and
C: The Commissioner's decision is not supported by substantial evidence because:
1. ALJ Bullard did not articulate sound and plausible reasons for rejecting plaintiff's subjective complaints of pain; and
2. Medical evidence does not support ALJ Bullard's determination that plaintiff's coronary impairment is not at the Listings level.
V. ADEQUACY OF ADMINISTRATIVE RECORD
If the administrative record is not susceptible to meaningful review, it is futile to attempt analysis of the alleged errors. Therefore, the court should address this point first.A. Competing Arguments
Plaintiff argues that numerous notations of "inaudible" appear in transcribed testimony of ME Hoang. Plaintiff argues that such omissions compromise counsel's ability to analyze ME Hoang's opinion regarding plaintiff's medical condition. Plaintiff further argues, but without elaboration, that the "inaudible segments are significant and material to the meaning of the ME's testimony, particularly on cross examination by the attorney." Pl.'s Br. at p. 26.
The Commissioner responds that most instances of inaudible testimony are "one word or short omissions which do not affect the ability to understand the testimony," and that ME Hoang's remaining testimony clearly is that plaintiff's impairment fails to meet Listings level, and permits his performance of light work with no exposure to environmental factors. Deft.'s Br. at p. 7. The Commissioner argues that remand is not required, despite missing evidence, because the remaining record provides ample evidence from which a determination may be made. Id.
B. Analytical Standards
Undoubtedly, courts responsible for appellate review of administrative agency action may remand when informed judicial review is impossible because of an inadequate record. See Harrison v. PPG Industries, Inc., 446 U.S. 578, 594, 100 S. Ct. 1889 (1980). The touchstone, however, is not whether evidence is missing, but whether the existing record contains ample evidence from which a determination may be made. Torres v. Shalala, 48 F.3d 887, 894 (5th Cir. 1995); Brady v. Apfel, 41 F.Supp. 2d 659, 668 (E.D. Tex. 1999). Inaudible portions of transcripts fall within the ambit of this rule. Williams v. Barnhart, 289 F.3d 556, 557-58 (8th Cir. 2002); Chittenden v. Barnhart, No. 01-3417, 2002 WL 31640483, at n. 1 (E.D. La. Nov. 2, 2002).
C. Application
Plaintiff correctly argues that the transcript of proceedings submitted by the Commissioner contains several "inaudible" notations, primarily in ME Hoang's testimony. For example, the transcript of ME Hoang's direct testimony reads as follows:
"He also has (inaudible) pulmonary disease, listing 3.02."
(Tr. 360.)
" Now for the substance addiction disorder to (inaudible) and then smoking, 12.09. There is repeated in the record that he was not complying with the smoking cessation and he (inaudible)."
(Tr. 363.)
" I would look at exhibit 12F, page one, dated July 27, 2002, he has a complication condition known as a (inaudible)."
(Tr. 364.)
Similarly, during plaintiff's attorney's cross-examination, ME Hoang's explanation of reasons for inserting stents to relieve arterial occlusions contains five inaudible notations (Tr. 365). In another exchange about occluded arteries, ME Hoang's testimony in response to the attorney's questions is marred by six inaudible segments (Tr. 365).
This many omissions do not reflect admirably on the Commissioner's evidentiary record. However, these numerous omissions do not prevent meaningful review. In both cross-examination instances cited above, either plaintiff's attorney or ALJ Bullard asked follow-up questions, and ME Hoang's responses clarify the missing transcript items. As for the stenting discussion, for example, plaintiff's attorney summarized ME Hoang's explanation thus:
Q: "And so they stinted (sic) one of the occluded bypasses, is that right?"
A: "Yes."
(Tr. 365). And regarding arterial occlusions, ALJ Bullard asked:
Q: "[C]onsidering the bypass, considering the stint (sic), are there any significant occlusions left?"
A: "No, Your Honor."
(Tr. 366.) ME Hoang further responded to plaintiff's counsel:
Q: "I'm looking on the left side and it still has 80% blockage."
A: "[T]hose blockage (sic) have been taken care of by the three graph (sic). You see the two graph from the veins and you have the big, you know, (inaudible), which it pushes the coronary artery going to the left arterial destiny. So that is a big (inaudible) to provide enough stimulation to his heart."
(Tr. 367.) Ultimately, ME Hoang's testimony on the subject is clear:
A: "They really took care of, of all the occluded area. And the proof is . . . when they repeat the stress test in June 18 of 2000, the stress test was negative after. . . . the stint (sic) placement."
(Tr. 369.)
Although the record is shoddy, the transcript of ME Hoang's testimony is sufficiently intelligible and understandable to enable meaningful judicial review. Most inaudible portions, if read in context, omit only a few words and are frequently preceded or followed by references to exhibits. See, e.g., Tr. 366. Testimony omitted as inaudible usually was clarified by follow-up questions with audible responses. Finally, and of equal significance, there is no indication that any missing portion of the transcript would bolster plaintiff's arguments. See Williams v. Barnhart, 289 F.3d at 557-58. Plaintiff's Due Process point of error therefore fails.
VI. SEVERITY OF IMPAIRMENTS
A claimant's impairments and severity thereof are determined at Step Two of the sequential evaluation process. Should legal error occur at this early stage, it would impact the remainder of the analysis and likely impugn the overall evaluation. Accordingly, the next logical point of error to address is that which attacks the Commissioner's Step Two findings.
A. Competing Arguments
Plaintiff argues that ALJ Bullard considered each claimed impairment separately, but thereafter erroneously ignored any impairment found non-severe. Plaintiff argues ALJ Bullard should have considered the cumulative effect of all impairments throughout the disability determination process. Plaintiff particularly complains about ALJ Bullard's failure to consider his mental depression after having found it to be non-severe when considered separately.
In another unflattering instance, the Commissioner's brief does not directly respond to plaintiff's argument.
B. Analytical Standards:
The Commissioner's regulation addresses consideration of multiple impairments in combination as follows:
"In determining whether your physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under the law, we will consider the combined effect of all of your impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity [to be the basis of eligibility under the law]. If we do find a medically severe combination of impairments, the combined impact of the impairments will be considered throughout the disability determination process."20 C.F.R. § 404.1523 (2004) (italics added).
Case law embraces this common-sense convention. See, e.g., Crowley v. Apfel, 197 F.3d 194, 197 (5th Cir. 1999); Anthony, 954 F.2d at 293. Moreover, failure to consider combined impact of multiple impairments constitutes a failure to apply correct principles of law. Loza v. Apfel, 219 F.3d 378, 393, 399 (5th Cir. 2000); Owens v. Heckler, 770 F.2d 1276, 1282 (5th Cir. 1985) (citing Dillon v. Celebrezze, 345 F.2d 753, 756-57 (4th Cir. 1965) ("[The examiner erred] in his application of the proper legal standards. . . . [T]he examiner so fragmentized [plaintiff's] several ailments . . . that he failed properly to evaluate their effect in combination.").
C. Application
The Commissioner's regulation is susceptible to varying interpretations. If applied broadly, a claims adjudicator would have to consider every alleged impairment throughout the disability determination process, irrespective of its severity. Applied narowly, only impairments determined to be severe — whether singly or in combination with other impairments — would warrant evaluation at every step.
The latter approach is more logical and consistent with the Commissioner's five-step sequential analysis approach. If every alleged impairment were relevant throughout, there often would be little justification for administrative law judges to engage in interim determinations at Step Two and Step Three. Conversely, the sequential analysis process makes sense if Steps Three through Five address only impairments determined at Step Two to be severe, whether singly or in combination.
A befitting approach at Step Two ultimately involves three questions: First, does an allegedly disabling condition constitute an "impairment" as that term is understood in social security parlance? If so, does it constitute a "severe impairment" as that term is defined by the Commissioner and interpreted by courts? If not, does the impairment nevertheless combine with other impairments so that their cumulative effect amounts to a "severe impairment?" An affirmative answer at either the second or third stages triggers a duty to consider the combined effect of the impairment throughout the remaining steps. In other words, once adjudicators find a medically severe combination of impairments, they must consider the combined effect of such impairments in determining eligibility at all remaining steps of the analysis. On the other hand, the regulation does not require adjudicators to continue considering an impairment which, even in combination with other impairments, is not severe.
Social Security benefits based on disability are awarded only for "impairments" that render a person unable to engage in any substantial gainful activity for a continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(A). For Social Security disability purposes, an "impairment" is an abnormality that can be shown by medically acceptable clinical and laboratory diagnostic techniques, and, in fact, must be established by medical evidence, as opposed to the claimant's subjective statement or symptoms. 20 C.F.R. § 416.908 (2004).
See n. 11, supra.
Had ALJ Bullard's analysis proceeded along this course, he most likely would have determined at the outset that plaintiff's alleged depression does not rise to the level of an impairment, thus mooting the challenge that plaintiff now forcefully advances. Apart from plaintiff's testimony that he feels "worthless" and takes Paxil (Tr. 349), there was no evidence from mental health professionals that he has been diagnosed or undergone treatment for depression. This evidentiary deficiency would have precluded a finding of any mental impairment. (See n. 11, supra.) Moreover, on September 28, 2000, and April 30, 2001, a consulting physician reviewed plaintiff's records and completed the PRTF. In both instances, the physician concluded that the record contains insufficient evidence to establish a mental impairment as alleged by plaintiff. Tr. 239, 251, 253.
See n. 9, supra.
See n. 8, supra.
Instead of addressing the threshold question, however, ALJ Bullard casually skipped to the second prong of the inquiry and considered whether plaintiff's alleged mental depression met the definition of severity. He found it not a severe impairment because "it does not significantly interfere with his ability to work." Tr. 13. He referred to the record which shows that plaintiff "has not sought regular and routine treatment from a mental health specialist." Id. He did not thereafter factor in mental depression in his decision.
The critical question is whether ALJ Bullard — having at least inferred that plaintiff's alleged depression constituted an impairment — erred by failing to consider whether it combined with other impairments to meet the definition of severity. ALJ Bullard did not say in haec verba that he considered the combined effect of depression and plaintiff's other impairments. However, the record does not affirmatively demonstrate that he ignored that duty. To the contrary, ALJ Bullard mentioned at least twice in his decision that he considered impairments in combination. Tr. 13, 16. One reference was amid his analysis of plaintiff's alleged depression. Tr. 13. Clearly, ALJ Bullard was aware of his duty to consider impairments singly and in combination. Ultimately, he found that plaintiff had a combination of impairments that constituted a severe impairment for Step Two purposes. See Tr. 13, 16. The fact that mental depression was not expressly mentioned can mean only that ALJ Bullard did not find it to contribute to a condition affecting plaintiff's ability to work. Hence, he was not obliged to continue to evaluate mental depression at subsequent analytical steps.
Loza v. Apfel, on which plaintiff relies, is not to the contrary. There, the Fifth Circuit found that an ALJ failed to apply correct legal standards in making a severity determination because he disregarded the Stone v. Heckler severity standard applicable in the Fifth Circuit, Id., 219 F.3d at 392. Because the ALJ's severity determination was faulty in its inception, it precipitated further error by causing the ALJ to not consider combined effects of all impairments. Contrary to the argument advanced by plaintiff here, the court did not remand simply because the ALJ failed to consider a non-severe impairment in combination with other severe impairments.
The Fifth Circuit held:
"[W]e will in the future assume that the ALJ and Appeals Council have applied an incorrect standard to the severity requirement unless the correct standard is set forth by reference to this opinion or another of the same effect, or by an express statement that the construction we give to 20 C.F.R. § 404.1520(c) (1984) is used."Stone v. Heckler, 752 F. 2d 1099, 1106 (5th Cir. 1985).
Here, plaintiff's application was not denied for lack of proof that he suffered from a severe impairment. ALJ Bullard found a combination of impairments that met the level of medical severity to satisfy plaintiff's burden of proof at Step Two. He considered those impairments in combination at Steps Three through Five.
Lastly, plaintiff points to no evidence regarding the alleged mental impairment that ALJ Bullard did not consider and weigh at Step Two. Plaintiff offers no specific argument suggesting that further consideration of plaintiff's alleged depression at subsequent steps would have affected the final determination.
For all these reasons, this point of error also fails notwithstanding the Commissioner's failure to respond to it.
VII. ALLEGED DISREGARD OF "THE LISTINGS"
ALJ Bullard accepted plaintiff's evidence establishing multiple impairments, viz., ischemic heart disease, chronic obstructive pulmonary disease, and angina. Moreover, ALJ Bullard concluded that plaintiff sustained his burden of proving those impairments to be severe. This finding completed the Step Two analysis, and was favorable for plaintiff.
This favorable finding triggered a duty for ALJ Bullard to proceed to Step Three, and to consult "The Listings" to determine whether plaintiff's severe impairments are presumptively disabling. "The Listings" — a shorthand reference to Appendix I, Subpart P, Part 404 of the Regulations — catalogue various impairments and indicators of their medical severity. 20 C.F.R. Pt. 404, Subpt. P, App. 1 (2004). A person whose impairment meets or exceeds an impairment in the Listing is presumptively disabled. 20 C.F.R. § 416.920(d) (2004); Soc. Sec. R. 88-3c (1988).
If one or more of plaintiff's impairments met or exceeded an impairment in the Listings, the inquiry should have ended, and plaintiff should have been awarded benefits. Consequently, plaintiff's point of error challenging ALJ Bullard's Step Three determination is appropriate for examination next.
A. Competing Arguments
Plaintiff argues that ALJ Bullard improperly declined to find that plaintiff's ischemic heart disease meets Listing 4.04. Plaintiff further argues that this impairment meets the Listing because medical evidence shows he suffers from severe angina, while his testimony establishes that he suffers "constant fatigue and anginal discomfort on ordinary physical activity." Pl.'s Br. at p. 26. Finally, plaintiff argues that medical improvement of his condition following surgery "does not rule out the fact that there still remain several arteries that are severely clogged and that [he] still suffers from angina and fatigue." Id. Therefore, he argues that his impairment meets the requirements of Listing 4.04 for ischemic heart disease, and he should have been found presumptively disabled.
The Commissioner responds that surgery relieved plaintiff's condition and that medication alleviates his pain. The Commissioner contends that plaintiff does not carry his burden of showing that his impairment meets the Listing because case law holds that a condition which can be remedied or controlled by treatment or medication cannot serve as the basis for disability. Deft.'s Br. at p. 6.
B. Analytical Principles
Listing 4.04 provides parameters for a finding of presumptive disability due to ischemic heart disease. The Listing is lengthy, but generally provides that ischemic heart disease provides a basis of presumptive disability when the evidence includes:
• documentation by a sign- or symptom-limited exercise test of abnormality (which meets clinical severity as specified in the regulation); OR
• documented impaired myocardial function or coronary artery disease; AND
• opinion of an evaluating program physician that performance of exercise testing would pose a significant risk to the claimant; AND
• marked limitation of physical activity demonstrated by fatigue, palpitation, dyspnea, or anginal discomfort on ordinary physical activity.20 C.F.R. Pt. 404, Subpt. P, App. 1, § 4.04 (2004).
C. Application
Plaintiff suffers from blockage of coronary arteries, attendant angina, and fatigue. However, angina and fatigue alone are insufficient for a finding of presumptive disability based on Listing 4.04. The record does not include, nor does plaintiff provide:
a. evidence of an exercise test providing results which meet the level of clinical severity specified in the Listing, or
b. an opinion from an evaluating physician that performance of such an exercise test would pose a significant risk to plaintiff.
In the absence of either factor, plaintiff's angina, although severe, cannot provide a basis for presumptive disability under Listing 4.04. Plaintiff's point of error regarding ALJ Bullard's Step Three finding therefore fails.
VIII. CHALLENGES TO RESIDUAL FUNCTIONAL CAPACITY FINDING
Plaintiff's remaining points of error all attack the manner in which ALJ Bullard reached his conclusion that plaintiff has residual functional capacity for light work. Each point is addressed separately, but it is appropriate to first note that plaintiff complains in each instance that the Commissioner erred because ALJ Bullard failed to comply with a regulation found in Part 404 of Title 20, Code of Federal Regulations. These alleged errors cannot serve as a basis for remand because Part 404 governs applications for disability insurance benefits, not supplemental security income benefits which are at issue in this case. However, Part 416 has corresponding and substantively identical requirements for supplemental security income applications. Hence, this segment addresses plaintiff's arguments in the context of Part 416.
ALJ Bullard did not find that plaintiff's residual functional capacity permits him to perform a full range of light work. Rather, he found that plaintiff's functional capacity is limited by a need to avoid "environmental factors." Neither party attaches significance to this limitation.
Before analyzing the merits, a general overview of residual functional capacity will enhance overall understanding as subsequent analysis twines its laborious course through each point.
A. Residual Functional Capacity — Generally
Residual functional capacity (RFC) is defined as "the most you can still do despite your limitations." 20 C.F.R. § 416.945(a)(1) (2004). An ALJ determines RFC at Steps Four and Five of the sequential evaluation process, after a claimant has demonstrated impairment severe enough to limit ability to perform basic work activities, but not severe enough to match listed impairments that indicate presumptive disability. The RFC determination is an integral prerequisite finding that enables an ALJ to then consider whether a claimant can perform past relevant work (Step Four) or any available work (Step Five). Proper assessment of RFC is crucial to any disability determination.
When considering residual functional capacity, the Commissioner assesses an applicant's physical, mental, and sensory abilities, evaluates how they apply to that applicant's work-related functioning, and finally considers whether that applicant can sustain work-related activities in a work setting on a regular and continuing basis. See 20 C.F.R. § 416.945 (2004); Soc. Sec. R. 96-8p, 61 F.R. 34474 (July 2, 1996). To guide claims adjudicators through that process, the Commissioner has promulgated a regulation and issued a ruling that are at the focus of plaintiff's first challenge to ALJ Bullard's RFC finding. That point, therefore, is considered first.
B. Failure to Perform a Function-by-Function Analysis
Regulation 20 C.F.R. § 416.945(b) identifies seven ordinary physical functions that are pertinent to an individual's residual functional capacity. The regulation directs evaluators to consider the extent to which a claimant can perform these ordinary functions on a regular and continuing basis equivalent to an ordinary work schedule. More significantly here, Ruling 96-8p gives explicit and detailed directions for RFC evaluations and requires adjudicators to perform a function-by-function assessment. The ruling requires an adjudicator to perform this assessment, function-by-function, before expressing RFC in terms of exertional levels of work. Further:
The seven factors are:
1. Sitting
2. Standing
3. Walking
4. Lifting
5. Carrying
6. Pushing
7. Pulling
"A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." Soc. Sec. R. 96-8p (1996).
"Each function must be considered separately . . . even if the final RFC assessment will combine activities (e.g. walk/stand, lift/carry, push/pull). . . . [T]he adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis . . . and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record."
Soc. Sec. R. 96-8p (1996).
1. Competing Arguments
Plaintiff argues that ALJ Bullard failed to perform a function-by-function RFC assessment. Plaintiff argues that ALJ Bullard's decision omits discussion of three required factors,viz., plaintiff's ability to carry, push or pull. Plaintiff argues that this omission was prejudicial because ALJ Bullard's finding that plaintiff can perform light work presupposes that he can carry 10 to 20 pounds and operate leg and arm controls with push/pull movements, whereas plaintiff's testimony regarding inability to perform housework implies that he cannot carry, push, or pull to the degree required by light work. Pl.'s Br. at p. 16-18.
The Commissioner again does not directly address plaintiff's point. Rather, the Commissioner proffers a general argument that ALJ Bullard "appropriately assessed Plaintiff's residual functional capacity." Deft.'s Br. at p. 3.
2. Discussion and Analysis
Plaintiff's contention that ALJ Bullard failed to comply with SSR 96-8p's requirement for a function-by-function assessment clearly is correct. ALJ Bullard assessed plaintiff's RFC without first performing a function-by-function assessment. He did not address strength demands separately or discuss plaintiff's ability to perform any functions on a regular and continuing basis. Rather, he simply relied on record medical evidence from examining and non-examining physicians to determine plaintiff's RFC. Tr. 13.
That ALJ Bullard committed legal error is clear. However, the inquiry does not end at this juncture. ALJ Bullard's error was failure to comply with a ruling, which is a statement of internal policy and interpretation adopted by the Social Security Administration. While a ruling is "binding on all components of the Social Security Administration," it lacks the force of law. 20 C.F.R. § 402.35(b)(1) (2004); see also Spellman v. Shalala, 1 F.3d 357, 361 (5th Cir. 1993); Alamo Express, Inc. v. United States, 613 F.2d 96 (5th Cir. 1980); Pacific Molasses Co. v. Federal Trade Commission, 356 F.2d 386 (5th Cir. 1966). Rulings, however, may be consulted when the statute at issue provides little guidance. B.B. ex. rel. A.L.B. v. Schweiker, 643 F.2d 1069, 1071 (5th Cir. 1981). The Fifth Circuit frequently relies on rulings in evaluating ALJs' decisions. See Myers v. Apfel, 238 F.3d 617 (5th Cir. 2001) (relying on SSR 96-8p and 96-9p); Newton v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000) (relying on SSR 96-2p); Scott v. Shalala, 30 F.3d 33, 34 (5th Cir. 1994) (relying on SSR 83-12);Spellman v. Shalala, 1 F.3d at 362 (relying on SSR 83-20). In this circuit, the general reaction of courts to administrative departures from rulings is stated succinctly as follows:
"Should an agency in its proceedings violate its rules and prejudice result, the proceedings are tainted and any actions resulting from the proceeding cannot stand."Hall v. Schweiker, 660 F.2d 116, 119 (5th Cir. 1981) (citingPacific Molasses Co. v. Federal Trade Commission, 356 F.2d at 390) (emphasis added). Thus, a plaintiff in an action for judicial review who establishes error arising from failure to comply with a ruling must also demonstrate prejudice arising from that error to be entitled to relief. Id. A claimant establishes prejudice by showing that adherence to the ruling might have led to a different decision. Newton, 209 F.3d at 458 (citing Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995) (Ripley ultimately citing Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984)); see also Welsh v. Barnhart, No. 1:01cv220, 2002 WL 32073076 (E.D. Tex. Dec. 23, 2002).
While plaintiff's brief presents a colorable argument, full consideration of the evidentiary record compels the conclusion that plaintiff fails to show that adherence to the ruling would have led to a different decision. ALJ Bullard found examining physician Dr. Nehme Alkarra, M.D., to be credible. Dr. Alkarra opined that plaintiff can occasionally lift 20 pounds, stand and/or walk about 6 hours in an 8-hour workday, and sit about 6 hours in an 8-hour workday. Tr. 275. Such evidence supports ALJ Bullard's ultimate finding that plaintiff can perform light work. Moreover, ALJ Bullard resolved inconsistencies in the record against plaintiff. He found plaintiff's subjective complaints lacking credibility because they were unsupported by "objective or otherwise credible evidence." Tr. 14; see Sec. VIII.D.3, infra. Similarly, he rejected treating physician Sherron's ultimate issue opinion. Tr. 14. Finally, he weighed all medical evidence which, apart from Dr. Sherron's ultimate issue opinion, failed to establish that plaintiff cannot perform light work. Under these circumstances, there is no basis for the court to conclude that faithful adherence to the function-by-function evaluation required by Ruling 96-8p might have led to a different decision. Therefore, while plaintiff's point succeeds to the extent of demonstrating legal error, plaintiff does not show that the error warrants reversal of the Commissioner's RFC determination.
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. . . . [Light work] requires a good deal of walking or standing, or . . . sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, [a claimant] must have the ability to do substantially all of these activities." 20 C.F.R. § 416.967(b) (2004).
C. Failure to Properly Evaluate Treating Physician Opinion
Dr. Scott Sherron, M.D., plaintiff's treating physician, expressed an opinion that plaintiff's coronary artery disease is "unresponsive to maximal medical therapy" and plaintiff "is unable to work in any meaningful capacity due to class II-III angina." Tr. 338. ALJ Bullard clearly rejected this assessment when concluding that plaintiff retains residual functional capacity for light work. In this point, plaintiff asserts that ALJ Bullard failed to comply with applicable law when rejecting Dr. Sherron's opinion.
1. Competing Arguments
Plaintiff argues that regulations and case law required ALJ Bullard to weigh Dr. Sherron's opinion according to six factors. Plaintiff argues that ALJ Bullard failed to perform that six-factor analysis, thus committing legal error. Plaintiff contends that Dr. Sherron's opinion — even if not entitled to controlling weight — nevertheless should have been considered as significant evidence regarding plaintiff's angina. Pl.'s Br. at p. 18-21.
Plaintiff cites 20 C.F.R. § 404.1527(d) (2) and Newton v. Apfel, 209 F.3d 448 (5th Cir. 2000).
The Commissioner responds that ALJ Bullard noted his awareness of and duty to follow appropriate regulations, but was not required to undertake a "formalistic" recitation of each factor. The Commissioner further argues that ALJ Bullard acted within the scope of sound discretion because the record contains evidence from examining physician Dr. Alkarra, which controverts Dr. Sherron's opinion, and because Dr. Sherron's ultimate issue opinion is based on plaintiff's subjective complaints and is not supported by objective medical evidence. Deft.'s Br. at p. 5.
The Commissioner cites Falco v. Shalala, 27 F.3d 160, 163-4 (5th Cir. 1994).
2. Analytical Standards
General guidelines regarding deference to treating physicians' opinions are reasonably well-developed, and are summarized succinctly in bullet-list format as follows:
• Treating physicians' opinions on medical issues, i.e., the nature and severity of a patient's impairment, ordinarily are entitled to controlling weight.
• Treating physicians' opinions regarding medical issues may be rejected or discounted for good cause.
• When treating physicians' opinions are not afforded controlling weight, they cannot be ignored. They are entitled to some degree of weight to be determined by a six-factor analysis identified in Regulation 20 C.F.R. § 416.927(d) (2004).
• Treating physicians' opinions on ultimate issues governing entitlement to benefits are entitled to no special significance.
See 20 C.F.R. § 416.927(d) (2) (2004); SSR 96-2p, 61 F.R. 34490, 34491 (July 2, 1996); Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985) (citing Barajas v. Heckler, 738 F.2d 641, 644 (5th Cir. 1984); see also Myers v. Apfel, 238 F.3d at 621 (citing Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994) (internal citations omitted)); Newton, 209 F.3d at 455; Leggett, 67 F.3d at 566.
Good cause may exist when the physician's statements are conclusory and brief; when statements are unsupported by medically acceptable clinical, laboratory, or diagnostic techniques; otherwise unsupported by the evidence; or when the treating physician is not credible because (s)he is "leaning over backwards to support the application for disability benefits."See Myers, 238 F.3d at 621; Newton, 209 F.3d at 455-56;Greenspan, 38 F.3d at 237; Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990); Scott v. Heckler, 770 F. 2d at 485; see also Myers, 238 F.3d at 621 (citing Greenspan, 38 F.3d at 237); Newton, 209 F.3d at 456.
The six factors are:
1. Examining relationship;
2. Treatment relationship, specifically
a. Length of treatment relationship and frequency of examination,
b. Nature and extent of treatment relationship;
3. Supportability;
4. Consistency;
5. Specialization; and
6. Other factors brought to the adjudicator's attention.20 C.F.R. § 416.927(d) (2004).
See 20 C.F.R. § 416.927(e)(1) (2004).
Thus, in actions seeking judicial review, plaintiffs who show that an ALJ failed to subject a treating-physician opinion to the regulatory analysis before affording the opinion little or no weight thereby prove that the Commissioner failed to apply proper principles of law when denying their claims.
Substantive regulations authorized by and consistent with a statute have the force and effect of law, and are binding on federal courts, provided the regulation is "not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. §§ 706 (2) (A), (C); see Chrysler Corp. v. Brown, 441 U.S. 281, 295-96, 99 S. Ct. 1705, 1714, 60 L. Ed. 2d 208 (1979); Batterton v. Francis, 432 U.S. 416, 425, 97 S. Ct. 2399, 2405, 53 L. Ed. 2d 448 (1977).
3. Discussion and Analysis
ALJ Bullard did not engage in the regulatory six-factor analysis of Dr. Sherron's opinion. However, ALJ Bullard accepted and gave controlling weight to all of Dr. Sherron's medical opinions. Hence, there was no need to comply with the regulation and undertake a six-factor analysis to determine how much lesser weight to give. ALJ Bullard rejected only Dr. Sherron's ultimate issue opinion. Neither Regulation 20 C.F.R. § 416.927(d) (2004), nor case law requires a six-factor analysis of an ultimate issue opinion. Consequently, plaintiff fails to demonstrate legal error with respect to ALJ Bullard's handling of treating physician opinion.
Soc. Sec. R. 96-5p instructs administrative adjudicators to never ignore ultimate issue opinions of treating physicians, and to weight them under the same six factors that regulations require for treating physician medical opinions. However, plaintiff does not complain of ALJ Bullard's failure to comply with the ruling, nor has plaintiff shown prejudice arising from that error. (See Section VIII.B.2. at 23-24, supra, regarding necessity of demonstrating prejudice arising from error in disregarding a Social Security ruling.) Independent review does not suggest that a six-factor analysis under Ruling 96-5p would have highlighted any material evidence that ALJ Bullard did not address in other contexts. Consequently, there is no obvious reason to think that a six-factor analysis might have led to a different decision.
D. Assessment of Subjective Complaints of Pain
This section addresses plaintiff's remaining points of error, both of which challenge ALJ Bullard's treatment of plaintiff's subjective testimony regarding pain and its effects. When ALJ Bullard determined that plaintiff retains residual functional capacity for light work, he clearly gave little weight to plaintiff's subjective testimony that constant pain and breathing difficulty prevent him from doing much of anything for any amount of time when attempting to work around the house. See Tr. 350. This section examines plaintiff's contention that ALJ Bullard committed two distinct errors when making his credibility determination.
1. Competing Arguments
Plaintiff argues first that ALJ Bullard committed a legal error by failing to evaluate plaintiff's subjective complaints of pain in light of seven factors required by 20 C.F.R. § 416.929(c)(3) and Soc. Sec. R. 96-7p. Second, plaintiff argues that ALJ Bullard failed to articulate sound and plausible reasons for rejecting plaintiff's testimony, thus depriving his residual functional capacity determination of substantial evidentiary support. Specifically, plaintiff argues that the credibility factors relied upon by ALJ Bullard — plaintiff's poor working history and his continued smoking and drinking — do not disprove or impugn plaintiff's testimony that he suffers pain as alleged. Pl.'s Br. at p. 22-3.
The Commissioner responds that ALJ Bullard properly noted that Plaintiff's condition has been relieved with surgery and that medication alleviates Plaintiff's alleged disabling pain. Deft.'s Br. at p. 6. Further, the Commissioner argues that ALJ Bullard properly factored plaintiff's noncompliance with physician instructions regarding smoking and drinking and his poor work history in his credibility determination. Deft.'s Br. at p. 6-7.
2. Analytical Principles
Social Security jurisprudence recognizes that pain alone constitutes a disabling condition when it is "constant, unremitting, and wholly unresponsive to therapeutic treatment."Wren v. Sullivan, 925 F.2d 123, 128 (5th Cir. 1991); Cullivan v. Shalala, 886 F. Supp. 568, 577 (E.D.Tex. 1995). The ALJ is responsible for determining the disabling nature of a claimant's subjective complaints of pain. Carrier v. Sullivan, 944 F.2d 243, 247 (5th Cir. 1991). Subjective pain usually is analyzed as a potential nonexertional limitation. Dellolio v. Heckler, 705 F.2d 123, 127 (5th Cir. 1983); See also Carter v. Heckler, 712 F.2d 137, 142 (5th Cir. 1983).
Regulations first specify that pain must accompany a "medically determinable impairment that could reasonably be expected to produce . . . symptoms such as pain." 20 C.F.R. § 416.929(b) (2004); See Wren, 925 F.2d at 129; Houston v. Sullivan, 895 F.2d 1012, 1016 (5th Cir. 1989). When a claimant proves that (s)he has such a medically determinable impairment, an ALJ and the Commissioner may not wholly reject complaints of pain, even if medical evidence does not support those complaints to the degree alleged. 20 C.F.R. § 416.929(c)(2) (2004).
When a claimant's subjective complaints of pain are deemed not credible despite uncontroverted medical evidence which shows a basis for pain, the ALJ must articulate reasons for rejecting the claimant's subjective complaints. See Falco v. Shalala, 27 F.3d at 163; Abshire v. Bowen, 848 F.2d 638, 642 (5th Cir. 1988). Social Security Ruling 96-7p mirrors case law, and directs administrative adjudicators to articulate specific reasons for the credibility finding. Soc. Sec. R. 96-7p (1996). Failure to articulate credible and plausible reasons for rejecting subjective complaints deprives the ALJ's decision of substantial evidentiary support and requires remand. Id.
An ALJ may reasonably reject complaints of pain which are not corroborated by objective medical evidence. Similarly, complaints of pain which can be remedied or controlled by surgery, medication, or prescribed therapy need not be credited as disabling. The regulations set forth seven additional factors to be considered when evaluating subjective pain and symptoms. Those factors are as follows:
See Wren, 925 F.2d at 129; Houston v. Sullivan, 895 F.2d at.
Johnson v. Bowen, 864 F.2d 340, 348 (5th Cir. 1988).;Cullivan v. Shalala, 886 F. Supp. at 577; see Villa v. Sullivan, 895 F.2d 1019 (5th Cir. 1990). Wingo v. Bowen, 852 F.2d 827, 831 n. 3 (5th Cir. 1988); Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987); 20 C.F.R. § 416.930 (a)-(b) (2004).
(1) daily activities;
(2) location, duration, frequency, and intensity of pain and other symptoms;
(3) precipitating and aggravating factors;
(4) type, dosage, effectiveness, and side effects of medication;
(5) treatment, other than medication, for relief of pain or other symptoms;
(6) any other measures taken to alleviate pain or other symptoms; and
(7) other factors concerning functional limitations and restrictions brought to the adjudicator's attention. 20 C.F.R. § 416.929(c)(3) (2004). Ruling 96-7p clarifies and amplifies the process of evaluating subjective symptoms in comparison to these factors.
For example, the ruling requires the adjudicator to consider all evidence on record and "draw appropriate inferences and conclusions about the credibility of the individual's statements." Soc. Sec. R. 96-7p, at *5. Furthermore, the adjudicator may examine the consistency of the claimant's statements, "both internally and with other information in the case record." Id. The adjudicator may also examine the claimant's longitudinal medical record, or lack thereof, to draw conclusions regarding credibility of subjective complaints. Finally, the ruling indicates that the adjudicator may partially credit a claimant's complaints.
3. Discussion and Analysis
Addressing the arguments in reverse order, this section first considers whether ALJ Bullard failed to give sufficient justification for his credibility choice, and then examines whether he committed legal error by disregarding a governing regulation.
a. Stated Reasons for Credibility Choice
An applicant's poor work history, standing alone, does not constitute a sufficient reason to reject the applicant's testimony regarding subjective pain and symptoms. The Commissioner offers no contrary authority. The court must conclude, therefore, that ALJ Bullard stated one invalid reason for his credibility choice.
However, ALJ Bullard articulated other sound reasons for his credibility pick. He cited examining physician Dr. Nehme Alkarra, M.D., of Quality Care Medical Group in Beaumont, Texas, who found that taking deep breaths resolved plaintiff's shortness of breath; that chest x-rays indicated no evidence of acute cardiopulmonary disease; and, upon examination, reported that plaintiff's lungs were clear and breath sounds were normal and symmetric. Id., Tr. 267-70. With respect to plaintiff's testimony regarding constant chest pain and nitroglycerin usage, ALJ Bullard noted that plaintiff has not been hospitalized since August, 2000. Tr. 13-14. He also noted that plaintiff's wheezing was diagnosed as bronchitis, that plaintiff has failed to provide evidence of disabling chronic obstructive pulmonary disease, and that no physician has placed a work restriction. Id. Hence, the court cannot conclude that the Commissioner's decision lacks substantial evidence for want of articulated and plausible reasons for rejecting or discounting subjective testimony.
This brings the court to plaintiff's final argument, viz., that ALJ Bullard committed legal error by not applying a seven-factor analysis to plaintiff's subjective testimony. Certainly, plaintiff's argument here has appeal because ALJ Bullard's written decision is muddled at best when examined in the narrowly focused context of Regulation 416.929(c)(3) (2004) and Ruling 96-7p. However, neither the regulation, the ruling, nor interpretive case law requires an ALJ to name, enumerate, and discuss each factor in outline or other rigid, mechanical form.Falco v. Shalala, 27 F.3d at 164. Rather, an administrative decision is adequate, albeit barely, when it is sufficiently specific to make clear that the required factors were considered, at least to the extent that the record contains material and relevant evidence. Id. at 163-64.
Here, despite a jumbled and disordered format, one cannot affirmatively conclude that ALJ Bullard disregarded the regulation and ruling when considering plaintiff's subjective testimony. First, ALJ Bullard expressly stated that he considered the seven factors. Tr. 14. Second, given the various reasons he articulated for finding that "evidence does not support the degree of pain and limitation alleged by the claimant" (Tr. 14), the court may reasonably infer that consideration of several of the regulatory factors was intrinsic to ALJ Bullard's credibility decision. Finally, plaintiff identifies no other material and relevant evidence regarding the seven factors available for ALJ Bullard to factor into analysis. Plaintiff argues that ALJ Bullard should have analyzed the "disabling effects of the Vicoprofen and Vicodin that Plaintiff took regularly," but plaintiff introduced no evidence of any disabling effects, and it does not otherwise appear in the record. Plaintiff argues that ALJ Bullard should have analyzed plaintiff's testimony regarding a one-time inability to roll his garbage container to the front of the driveway without becoming winded, but ALJ Bullard implicitly considered that testimony when discussing plaintiff's pulmonary obstructive disease. In short, there is insufficient reason for the court to conclude that regulatory factors were ignored.
IX. CONCLUSIONS
Under the foregoing analysis, none of plaintiff's points of error succeed. In a vacuum, such result is not surprising for, as noted at the outset, judicial review is deferential to the Commissioner, especially with respect to disability determinations that involve a stringent burden of proof "bordering on the unrealistic."In context, however, one might plausibly — perhaps persuasively — argue that in this instance, judicial review has been too deferential. This report notes, but lets pass, a shoddy, incomplete administrative transcript. The report excuses the Commissioner's failure to respond to points raised in plaintiff's brief. The analysis forgives the Commissioner's failure to enforce her own rulings requiring (a) a function-by-function, seven-factor analysis when evaluating residual functional capacity, and (b) a six-factor analysis when determining weight to give a treating physician's ultimate-issue opinion, by holding such errors inconsequential for lack of ensuant prejudice. Finally, the report concludes that the Commissioner implicitly complied with a regulation and clarifying ruling, both requiring a seven-factor analysis of subjective testimony.
A Commissioner's decision can reflect multiple deficits just as claimants may suffer from multiple impairments. The Commissioner's duty is to evaluate multiple impairments, singly and in combination, while the court — mindful of its overarching duty to do justice — should reasonably consider the overall effect of multiple Commissioner deficiencies in deciding whether a claimant received full and fair consideration of the evidence.
It serves no useful purpose to speculate whether the Commissioner submitted for judicial review a decision so fraught with errors, and a brief so incomplete, deliberately or inadvertently. However, there is a constructive purpose for pondering at what point courts should withdraw from the painstaking review reflected above and simply remand on Due Process grounds, noting wholesale disregard of the Commissioner's governing rules and failure to participate meaningfully in the judicial action. This case comes very close to that point.
X. RECOMMENDATION
The Commissioner's decision should be affirmed.
VII. OBJECTIONS
Objections must be: (1) specific, (2) in writing, and (3) served and filed within ten days after being served with a copy of this report. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 1(a), 6(b), and 72(b).
A party's failure to object bars that party from: (1) entitlement to de novo review by a district judge of proposed findings and recommendations, Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error, of unobjected-to factual findings and legal conclusions accepted by the district court, Douglass v. United Servs. Auto. Ass'n., 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).