Opinion
Civil Action No. 03-5122.
September 3, 2004
MEMORANDUM
I. Introduction
Phim Khon brings this action under 42 U.S.C. § 405(g) and 1383(c), seeking reversal of the final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's claim for social security benefits under Title II of the Social Security Act. Plaintiff and defendant have each filed a Motion for Summary Judgment. For the reasons that follow, including that the ALJ failed to explain if she gave consideration to the treating physician's report, that the ALJ failed to support her finding that there was alternative work appropriate for plaintiff, and that the ALJ failed to resolve a conflict between vocational expert testimony and the Dictionary of Occupational Titles, the matter is remanded to the Commissioner for a new hearing.
II. Procedural History
Plaintiff applied for Social Security Income ("SSI") disability benefits on November 30, 1998. (R. at 60.) Her claim was denied on February 16, 1999. (R. at 30.) She filed a Request for Reconsideration, which was denied on July 5, 1999. (R. at 35.) She then filed a Request for Hearing on August 10, 1999. (R. at 39.) An administrative hearing was held before Administrative Law Judge ("ALJ") Diane C. Moskal on January 6, 2000. (R. at 167-86.) On July 10, 2000, the ALJ issued a decision in favor of the Commissioner. (R. at 9-19.) Plaintiff filed a Request for Review with the Appeals Council on August 21, 2000, along with a list of objections to the ALJ's decision. (R. at 5-7.) On October 20, 2000, the Appeals Council denied plaintiff's Request for Review, stating that the decision of the ALJ would stand as the final decision of the Commissioner. (R. at 3-4.) Plaintiff then filed a timely appeal with this court. Pursuant to the Commissioner's own unopposed motion, which requested a remand to allow further assessment of plaintiff's impairments, consideration of plaintiff's treating physician, and to update the vocational record, the court remanded the matter to the Commissioner for further proceedings. (R. at 236-40.)
On November 7, 2002, a second administrative hearing was held before the same ALJ. (R. 208-33.) Plaintiff had voluntarily altered the time period for which she was seeking benefits, thereby affecting testimony and evidence relevant to her claim. (R. at 199.) On January 6, 2003, the ALJ, relying heavily on her prior findings, again ruled in favor of the Commissioner. (R. at 195-204.) Plaintiff's counsel filed exceptions thereto. However, on July 14, 2003, the Appeals Council denied plaintiff's request, stating that the second decision of the ALJ would stand as the final decision of the Commissioner. (R. at 187-89.) Plaintiff then filed the instant lawsuit.
III. Factual History
Phim Khon was born in Cambodia on June 3, 1948, and was fifty-one years old during the alleged period of her disability, between June 1999 and August 2000. (R. at 60; Pl.'s Br. at 15, 17.) According to suggested agency guidelines, Khon was a "person closely approaching advanced age." Claimant has no formal education and is unable to speak English. (R. at 203.) Claimant suffers from bilateral shoulder impairments and left eye blindness, impairments acknowledged as "severe" by the ALJ. (Id.)
A person between fifty and fifty-four years old is considered "closely approaching advanced age." 20 C.F.R. § 416.963(d).
Khon began treatment for diabetes and hypertension in 1995 and 1997, respectively. (R. at 93.) On January 26, 1999, Dr. Oung Thain examined her and reported that she complained of having had knee pain for three years, chest pain for two years, dizziness for three years, and arthritis for three years. (R. at 102). Dr. Thain diagnosed Khon with hypertension, Type II Diabetes, degenerative joint disease in right knee, prosthetic left eye, possible Meniere's Disease, and external chest pain. (R. at 103.) Khon was found to have a "normal gait" with a "slight limp" due to right knee pain. (Id.) Dr. Thain did not find claimant capable of a medium exertional level of work. (R. at 107.) He did find that she had the capacity to lift and carry twenty pounds frequently and to stand or walk four hours a day. (Id.) Further, he found a slightly limited range in the right shoulder abduction, but otherwise found a full range of motion for the shoulder bilaterally, and all remaining motion normal. (R. at 105-06.)
Degenerative joint disease is also called "osteoarthritis." Jacob E. Schmidt, 2 Attorney's Dictionary of Medicine, D-39 (2003). It is a form of arthritis characterized by bone remodeling, overgrowth of bone, and degeneration of cartilage associated with joints. Id. at 4 O-114.
Meniere's diseases is a disease of the inner ear associated with a dilation of the membranous labyrinth, characterized by attacks of dizziness, ringing in the ears, deafness, peculiar movements of the eyes, and vomiting. Jacob E. Schmidt, 4Attorney's Dictionary of Medicine, M-121 (2003).
Abduction is the pulling or drawing of a part of the body. From the imaginary median line which is conceived as running through the center or axis of the body. With regard to the arm, it is the movement which takes the limb away from the side of the trunk. Jacob E. Schmidt, 1 Attorney's Dictionary of Medicine, A-18 (2003).
On February 10, 1999, an agency physician found that plaintiff was capable of a medium exertional level, and had no limitation whatsoever standing, sitting, walking, pushing, pulling, and that she had no postural, manipulative, communication, or environmental limitations. (R. at 110-16.) The agency physician's conclusions differed diametrically from Dr. Thain's. The agency physician even asserted that Dr. Thain's assessment was "non-credible." (R. at 114.)
Claimant's amended date of onset is June 25, 1999, the date on which another treating physician, Dr. Jose Aramburo, entered a note referring to plaintiff's right shoulder symptoms, attributable to a fall in March or April of 1999.
The record is ambiguous with regard to the date that plaintiff's fall occurred. Dr. Aramburo's June 25, 1999 note speaks of a fall "one month ago." (R. at 137.) A Temple Hospital outpatient record from July 14, 1999 notes a fall occurring "approximately three months ago." (R. at 158.) A MossRehab Evaluation form from January 21, 2000 notes a fall occurring in "March 1999." (R. at 330.) The ALJ, in her July 10, 2000 decision, found the claimant's fall to have been in March 1999. (R. at 14.)
On July 2, 1999, agency physician, Dr. Aulisio, completed a medical assessment form that asserted that claimant had the exertional capacity for medium level work, although he found a sixty percent restricted range of motion in all directions for the right shoulder. (R. at 150-57.)
The normal range of motion for the shoulder is: abduction at 150 degrees; forward flexion at 180 degrees; extension at 45 degrees; external rotation at 90 degrees; internal rotation at 90 degrees. Scott Moses, Family Practice Notebook, at www.fpnotebook.com/ORT127.htm.
On July 14, 1999, Dr. Aramburo, after examination, noted that plaintiff could not perform internal rotation/abduction due to pain. (R. at 158.) He stated that the shoulder had "never gotten better," although there was no swelling or dislocation, and patient had nearly full bicep strength. (Id.)
On September 9, 1999, Dr. Aramburo reported right shoulder bursitis and tendinitis, degenerative joint disease in right shoulder, as well as plaintiff's claims of marked limitations of activities of daily living ("ADL"). (R. at 163-64.) On September 15, 1999, he noted that his patient still had pain and restricted range of motion ("ROM") in the right shoulder. (R. at 159.) He recommended physical therapy ("PT"). (Id.) Plaintiff underwent six PT sessions at the Temple University Physical Therapy Associates in September 1999. (R. at 165-66.) Claimant missed two appointments. (R. at 165.) The next PT session occurred in January 2000 at MossRehab Center. (R. at 200.)
On January 7, 2000, plaintiff reported pain in the right shoulder to her primary care physician, Dr. Truong. (R. at 275.) On January 17, 2000, Drs. Handal and McDonald initially evaluated patient, and found no external rotation, only 80 degrees abduction, and only 80 degrees forward flexion in the right shoulder. (R. at 295.) Dr. Handal, whose assessment was "frozen right shoulder," gave Khon a subacromial right shoulder steroid injection. (R. at 295-96.) Khon reported no relief from PT for pain or her limited ROM, which the physical examination confirmed. (R. at 295.) Drs. Handal and McDonald found Khon fully intact neurovascularly in both upper extremities, that her deltoid muscle was intact, that she had no acromioclavicular joint tenderness, and but minimum palpable subacromial tenderness. (Id.) On January 21, 2000, Khon had an initial PT evaluation at MossRehab. (R. at 330-34.) She noted that her activities were limited by pain at that time. (Id.) She was unable to reach into the upper cabinet, needed assistance bathing, and had numbness in fingertips. (R. at 331.) Khon complained of decreased ROM, pain, and limitations of ADL. (R. at 332-34.) Testing found ROM limited to 30 degrees external rotation, 19 degrees internal rotation, 92 degrees abduction, and 100 degrees shoulder flexion. (R. at 332-33.) The MossRehab evaluation found ambulation deficits, impaired posture/body mechanics, decreased strength, decreased balance, but made no modification of work status. (R. at 332-34.)
In the movement of limbs or any jointed part of the body, flexion is that motion which bends the parts involved. Jacob E. Schmidt, 2 Attorney's Dictionary of Medicine, F-112 (2003).
Frozen shoulder is a condition in which movement in the shoulder joint and between the shoulder blade and the ribs is restricted, and there is pain both on moving the arm and at rest. The term is also applied to numerous conditions which limit movement at the shoulder joint. Jacob E. Schmidt, 2 Attorney's Dictionary of Medicine, F-187-88 (2003).
Subacromial means beneath the acromion. See note 10,infra.
The acromion is the rectangular end of the spine of the shoulder blade, which forms a joint with the clavicle (collarbone). Jacob E. Schmidt, 1 Attorney's Dictionary of Medicine, A-92 (2003). The acromioclavicular joint connects the outer end of the clavicle with the acromion. Id. at A-92. The chief movements of the joint are gliding and rotation. Id.
Ambulatory means the process or act of walking. Jacob E. Schmidt, 1 Attorney's Dictionary of Medicine, A-275 (2003).
Between January 21, 2000 and March 8, 2000, plaintiff attended twelve PT sessions. (R. at 321). On January 28, 2000, she reported that her right shoulder felt "a little better." (R. at 324.) On February 2, 2000, she reported that her right shoulder pain was "not that bad". (Id.) On February 9, 2000, a physical therapist reported improved ROM, decreased pain, and that she had a significant increase in strength. (R. at 321-22.) The same therapist noted that plaintiff would need to continue a home rehabilitation program for a gradual return of the ROM in her right shoulder. (Id.)
On March 27, 2000, plaintiff reported to Dr. Handal that she could perform ADL independently but still had difficulty lifting heavy objects. (R. at 294.) On physical examination, however, Dr. Handal noted that the patient had palpable tenderness in the subacromial region and poor strength with the "empty can test." (Id.) Dr. Handal recommended and prescribed PT, and gave the patient a subacromial steroid injection. (Id.)
The "empty can test" consists of holding one's arms to the side as if holding cans bilaterally. Then the patient pronates their wrists as if emptying cans. Scott Moses, Family Practice Network, available at www.fpnotebook.com/ORT123.htm (as of Sept. 1, 2004).
On May 22, 2000, Drs. Handal and Mark noted that the patient had poor strength on abduction and a "frozen right shoulder." (R. at 293.) Furthermore, Drs. Handal and Mark noted that Khon had not participated in any of the twelve sessions of PT prescribed for her on March 27, 2000. (Id.) Drs. Handal and Mark wrote another prescription for twelve bi-weekly sessions, and recommended her to return in two months for re-evaluation. (Id.) They found ROM improvement, and 100 degrees abduction, 100 degrees forward flexion, external rotation of 20 degrees, and internal rotation of 70 degrees. (Id.)
Plaintiff returned to PT for twelve sessions during the period from July 19, 2000 to August 18, 2000 at MossRehab. (R. at 320.) The Moss discharge summary of August 18, 2000 reported that short term goals had been met: increased ROM, increased strength, decreasing pain by two to three grades, and establishing independent functional mobility and ADL. (Id.) Although she reported some pain, Khon was able to sweep, vacuum, mop, and carry groceries weighing approximately five pounds with her upper right extremity. (Id.)
IV. Standard of Review
Plaintiff has brought this action under U.S.C. §§ 405(g) and 1383(c)(3) for review of the Commissioner's decision to deny her claim for Social Security Income (SSI) disability benefits under Title XVI of the Social Security Act. The scope of judicial review is whether the decision has been supported by substantial evidence. The court may not set aside the Commissioner's decision if it is supported by substantial evidence, even if the court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
Substantial evidence has been defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate." Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999); Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Determining the existence or non-existence of substantial evidence requires a qualitative examination. Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983). A single piece of evidence will not satisfy the substantiality test if the Commissioner ignores, or fails to resolve, a conflict created by countervailing evidence. Id. Nor is evidence substantial if it is overwhelmed by other evidence, or if it really constitutes not evidence but mere conclusion. Id.
The existence of substantial evidence depends upon the thoroughness of the Commissioner's decision. The Commissioner's "findings should be as comprehensive and analytical as feasible and, where appropriate, should include a statement of subordinate factual foundations on which ultimate factual conclusions are based, so that a reviewing court may know the basis for the decision. This is necessary so that the court may properly exercise its responsibility under 42 U.S.C. § 405(g) to determine if the Secretary's decision is supported by substantial evidence." Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981) (quoting Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974)); see also Hargenrader v. Califano, 575 F.2d 434, 436 (3d Cir. 1978). "[T]he orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained." Sec. and Exchange Comm'n v. Chenery Corp., 318 U.S. 80, 94 (1943).
In assessing the respective arguments pertaining to this case, the court considers not only the relevant facts and law, but also whether the purposes of the original remand have been fulfilled. The Commission requested a voluntarily remand for this case for the following reasons:
"[F]urther evaluation of Khon's claim is warranted . . . including, but not limited to, reassessing the severity of and limitations resulting from all of Khon's alleged impairments; evaluating the medical evidence concerning Khon's shoulder injury; reevaluating the medical opinions of Khon's treating physician, Dr. Aramburo; reconsidering Khon's maximum residual functional capacity in light of any exertional or nonexertional limitations . . . updating the medical and vocational evidence of record. . . ."
(R. at 235.)
V. Social Security Procedure
1. Disability Evaluation
The Social Security Act (SSA) defines "disability" in terms of the effect a physical or mental impairment has on a person's ability to function in the workplace. It provides disability benefits only to persons who are unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." Heckler v. Campbell, 461 U.S. 458, 459-60 (1983) (quoting 42 U.S.C. § 423(d)(1)(A)). A person must not only be unable to do his previous work, but must be unable, considering his age, education, and work experience, to engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A).
The Commissioner has defined a five step sequential evaluation process for determining disability. 20 C.F.R § 404.1520(a). Step one considers claimant's work activity, if any. If she is doing substantial gainful activity, then she is found not disabled. Id. The second step considers the medical severity of impairments. If claimant does not have a severe medically determinable physical or mental impairment, which lasts for a continuous period of twelve months, then she is found not disabled. Id. The third step considers the medical severity of claimant's impairments. Id. If claimant has impairments that meet or equal one of the agency's defined disabilities, then he will be found disabled. Id. The fourth step considers the agency's assessment of claimant's RFC and past relevant work. If she can still do past relevant work, she is found not disabled. Id. Claimant bears the burden to demonstrate disability during the first four steps of the evaluation process. Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999).
At the fifth and last step the burden of proof shifts to the Commissioner who must demonstrate that the claimant is capable of performing alternative work. 20 C.F.R. § 404.1520(a). At the fifth step, the Commissioner considers the agency assessment of claimant's RFC and age, education, and work experience to determine if she can make an adjustment to "alternative work."Id. If she cannot make such an adjustment, a finding of disability is required. Id. The fifth step of inquiry is divided into "two stages." Heckler v. Campbell, 461 U.S. 458, 460 (1983) (citing 42 U.S.C § 423(d)(2)(A); 20 C.F.R § 404.1520(d)). First, the Commissioner assesses each claimant's present employment qualifications, considering "the factors Congress has identified as relevant: physical ability, age, education and work experience." Id. Second, the Commissioner considers whether there is relevant alternative work, meaning whether "jobs exist in the national economy that a person having the claimant's qualifications could perform." Id. at 461. "Work which exists in the national economy" is defined as "work which exists in significant numbers either in the region where the individual lives or in several regions of the country." 42 U.S.C. § 423(d)(2)(A).
Here, Khon satisfied her burden during the first four steps, demonstrating that she had a severe physical impairment and had no relevant past work experience. (R. at 203.) Accordingly, the Commissioner decided the case at the fifth step of the evaluation process.
2. Medical Vocational Guidelines
When claimant suffers only from exertional limitations, the Commissioner determines disability by first assessing the claimant's RFC to do work of some kind (e.g., `sedentary,' `light,' or `medium' work) and then applying the Medical Vocational Guidelines ("grids") contained in 20 C.F.R. Regulations No. 4, Subpt. P, App. 2 (1987). Stunkard v. Sec'y of Health and Human Servs., 841 F.2d 57, 60 (3d Cir. 1988). The grids "consist of a matrix of the four factors identified by Congress — physical ability, age, education, and work experience," and set forth decisions identifying whether jobs requiring specific combinations of these factors exist in significant numbers in the national economy. Heckler v. Campbell, 461 U.S. 458, 461-62 (1983). In their determinations of "disabled" or "not disabled," the grids reflect whether there exists alternative work for a claimant in the national economy. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200(b). The Commissioner has the burden of proof at this stage of the disability evaluation process.
If a person's RFC falls between the ranges of work indicated in the grids, her ability to engage in substantial gainful work is decided not by directed decision, but instead is guided by the "overall structure" of the grids, and the "frame of reference" they provide. Id. at § 200(d). Furthermore, since the grids are predicated on the individual's having an impairment which manifests itself by limitations in meeting the strength requirements of jobs, these grids may not be fully applicable where the nature of an individual's impairments does not result solely in strength or exertional limitations. Id. at § 200(e). If an individual had certain mental, sensory, or skin impairments would be an example. Id.
Here, plaintiff's left eye blindness is an example of a limitation for which the grids are not fully applicable, since it is not a strength based limitation. The grids are initially used to determine whether a finding of disabled is possible based on exertional limitations alone. Id. at § 200(b). If such a finding is not directed, then the ALJ must consider the individual's age, education, and work experience and nonexertional limitations to determine the individual's diminished work capacity. Id. at § 200(c). Here, owing to Khon's nonexertional limitation of left-eye blindness, the ALJ is not directed by the grids and is required to consider all the relevant facts.
The ALJ found that the plaintiff to have a medium exertional level and to be "closely approaching advanced age." (R. at 203.) The ALJ found that Khon had no formal education and was unable to speak English, and also that she had no past relevant work experience. (Id.) While the ALJ found that "based on claimant's age and educational background, the Grids would direct a conclusion of `not disabled'," the ALJ acknowledged that further evidence was necessary owing to plaintiff's nonexertional impairments.
VI. Analysis
1. Residual Functional Capacity
Plaintiff claims that the ALJ's finding that Khon had the RFC for medium level work between June 25, 1999 and August 19, 2000 was not supported by substantial evidence. Specifically, plaintiff argues that the evidence from her treating physician was not properly considered by the ALJ. (Pl.'s Br. at 15, 17.)
Here, the ALJ determined that plaintiff had the RFC to perform the exertional and nonexertional requirements of the "full range of medium work." (R. at 203.) RFC is defined as "that which an individual is still able to do despite the limitations caused by his or her impairments." Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000) (quoting Hartranft v. Apfel, 181 F.3d 358, 359 n. 1 (3d Cir. 1999)); see also 20 C.F.R. § 404.1545(a). In order to show that a claimant is capable of undertaking medium jobs that exist in the national economy, both exertional and nonexertional physical impairments must be taken into account. Stunkard v. Sec'y of Health and Human Servs., 841 F.2d 57, 60 (3d Cir. 1988). Exertional impairments involve limitations on claimant's ability to meet certain strength requirements of a job, such as lifting or pushing and pulling.Id. (citing 20 C.F.R. § 404.1545). The exertional requirements for medium work are defined as lifting/carrying fifty pounds occasionally and twenty-five pounds frequently, as well as the ability to sit or walk for six hours a day. 20 C.F.R. § 404.1567(c). Nonexertional impairments involve limitations such as postural, manipulative, or vision impairments that do not affect a claimant's physical strength, but may prevent a claimant from engaging in substantial gainful employment. Stunkyard, 841 F.2d at 60. Plaintiff has a nonexertional impairment based on her monocular vision.
Plaintiff asserts that the alleged period of disability was between June 25, 1999 and August 18, 2000. (Pl's Br. at 15, 17.) On June 25, 1999, plaintiff's treating physician, Dr. Aramburo, entered a treatment note referring to right shoulder symptoms attributable to a fall "one month ago," and that Khon had sixty percent restricted movement in all directions in her right shoulder. (R. at 137.) August 18, 2000 is the date on which the Moss Physical Therapy discharge summary reported that plaintiff could only carry five pounds in her upper right extremity. (R. at 320.)
Between these dates, plaintiff cites numerous treating physician reports in support of her alleged incapacity to perform at a medium work level. Dr. Aramburo treated patient between July 1999 and September 1999. On July 14, 1999 patient was unable to perform internal rotation or abduction with the right shoulder. (R. at 158.) On September 9, 1999, plaintiff's physical therapist reported bursitis, tendinitis, degenerative joint disease, and ADL deficits and limitations. (R. at 163-64.) Treating orthropedist Dr. Handal treated patient between January 2000 and May 2000. Dr. Handal found no ability for external rotation of the right shoulder on January 17, 2000, assessed a "frozen right shoulder," and gave patient a subacromial steroid injection. (R. at 295-96.) Patient reported that PT provided no relief from pain or limited ROM. (Id.) Khon attended twelve PT sessions at Moss between January 21, 2000 and March 8, 2000. (R. at 321.) On March 27, 2000, patient showed difficulty lifting "heavy objects," palpable tenderness in subacromial region, poor strength with the "empty can test," and was given a subacromial steroid injection. (R. at 294.) At an exam on May 22, 2000, Handal still found a "frozen right shoulder," and that the patient had poor strength on abduction. (R. at 293.) Plaintiff attended twelve more PT sessions between July 19, 2000 and August 18, 2000. (R. at 320.)
The Commissioner contends that the ALJ supported her RFC determination with substantial evidence. (Def.'s Br. at 17.) The ALJ found that the record supported the correctness of the original decision and that the plaintiff had the RFC for medium work and was not disabled: "In general . . . a review of the entire documentary record reveals little more than that which was determined in the prior decision in this case . . ." (R. at 202.) The only support given for this determination was the previous findings made by the ALJ. (Id.) She did not make new findings, despite the amended relevant period, and the specific directions to do so by the Commissioner. Rather, she incorporated contents of objective medical documents from her July 2000 decision "by reference" into her January 2003 decision, stating, "These documents support a conclusion that claimant is and has been capable of a full range of medium work." (R. at 200.) In so doing, the ALJ failed to give sufficient consideration to the new medical evidence, failed to use the opportunity to elicit new vocational testimony, and thus failed to articulate any objective basis for her findings.
In concluding that Khon had the RFC for medium work in her original July 2000 decision, the ALJ considered two separate assessments by agency physicians, written on February 10, 1999 and July 2, 1999 respectively, that opined that plaintiff was able to carry or lift fifty pounds occasionally and twenty-five pounds frequently, and was able to stand or walk six hours per eight hour workday. (R. at 110-16, 150-57.) In doing so, the ALJ rejected the January 1999 assessment of plaintiff's treating physician, Dr. Thain, and his assessment after examination that plaintiff was only capable of light work in that she could only lift twenty pounds frequently and could stand or walk only four hours per day. The ALJ found Dr. Thain's conclusions unsupported by and inconsistent with his physical examination of plaintiff, but without explanation. (R. at 15.) Although the ALJ purported to incorporate her prior findings to support her second decision, because plaintiff had amended her alleged onset date to June 25, 1999, the only report the ALJ had previously considered that was even relevant was the July 2, 1999 agency examination. To the extent that the ALJ incorporated and, thus, relied upon her analysis of an irrelevant agency doctor's assessment, she erred. Further, she failed to include any analysis of the treating physicians' reports made during the relevant time period.
It is well-established that treating physicians' opinions must receive great weight and consideration. See, e.g., Gilliland v. Heckler, 786 F.2d 178, 183 (3d Cir. 1986); Wallace v. Sec'y of Health and Human Svcs., 722 F.2d 1150, 1155 (3d Cir. 1983);Smith v. Sullivan, 720 F. Supp. 62, 64 (E.D. Pa. 1989). An ALJ conclusion of residual capacity for work that conflicts with a treating physician's opinion, and that is made without analytical comment or record reference to any contradictory medical evidence, is simply a conclusion not supported by substantial evidence. Gilliland, 786 F.2d at 183. The third circuit has emphasized that agency physicians' formulaic reports cannot be given the same weight as treating physicians. "Form reports in which a physician's obligation is only to check a box or fill in a blank are weak evidence at best . . . [W]here these so-called `reports are unaccompanied by thorough written reports, their reliability is suspect . . .'" Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) (quoting Brewster v. Heckler, 786 F.2d 581, 585 (3d Cir. 1986)).
The only relevant information relied upon by the ALJ, the July 2, 1999 evaluation by agency physician, Dr. Aulisio, is such a "form report," consisting of "checked boxes," and some "filled out blanks," which are largely inconclusive, sometimes illegible. (R. at 150-57.) The report is a standardized agency RFC assessment form, primarily consisting of boxes to be checked by the agency physician in determining exertional and nonexertional limitations of the patient. (Id.) And, Dr. Aulisio never examined or saw or plaintiff. (Id.; Oral Argument Transcript, 9/2/04.) The suspect nature of the report is further heightened when one considers that the July 2, 1999 assessment, noting plaintiff's March 1999 fall and resulting severe injuries, found her capable of exactly the same exertional level as the February 1999 evaluation, an evaluation written before the injuries were sustained. (Compare R. at 110-16 with R. at 150-57.)
The exertional capacity "evaluations" of both agency reports, before and after the injury to the right shoulder are identical, except for a marking of "limited in upper extremities" in pushing and/or pulling in July 1999, which does not materially effect the determination of a medium exertional level. (R. at 151.)
By contrast, the reports from treating physicians, Drs. Handal and Aramburo, are detailed and temporally longitudinal. The ALJ fails to make any specific findings which would undermine their finding and conclusions based upon objective testimony. Indeed, the ALJ failed to make mention of their objective finding that plaintiff's shoulder movement was restricted by sixty percent in June 1999, and failed to address the finding of plaintiff's inability to lift more than five pounds with her upper right extremity in August 2000. The medical significance, and how the evidence relates to the plaintiff's RFC, are central to the issues in this case. There does not appear to be any objective medical evidence supportive of a conclusion of medium exertional capacity, that is, ability to lift fifty pounds occasionally and twenty-five pounds frequently.
An ALJ is obligated to consider and explain the reasons for discounting all of the pertinent evidence in making a RFC determination. The third circuit has recognized that there is a "particularly acute need" for some explanation by the ALJ when he has "rejected relevant evidence" or when there is "conflicting probative evidence in the record." Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981). Failure to provide such an explanation for non-consideration or rejection of a treating physician's opinion is contrary to third circuit precedent and requires reversal or remand. See Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000) (the ALJ "must give some indication of the evidence which he rejects and his reason(s) for discounting such evidence"); Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) ("the ALJ must consider all the evidence and give some reason for discounting the evidence she rejects"); Schaudeck v. Comm'r of Soc. Sec. Admin., 181 F.3d 429, 433 (3d Cir. 1999) ("the ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding"); Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981) ("[i]n the absence of such an indication, the reviewing court cannot tell if significant probative evidence was not credited or simply ignored").
The ALJ's failing to consider claimant's treating physicians' findings and opinions is particularly troubling since the Commissioner had sought remand to "reevaluat[e] the medical opinions of Khon's treating physician, Dr. Amamburo" and to "reconsider Khon's maximum residual functional capacity in light of any exertional or nonexertional limitations." (R. at 235.) Thus, even though the ALJ was specifically informed of how to supplement her analysis, she failed to do so.
Since the ALJ entirely failed to evaluate Khon's treating physicians' reports, the ALJ's determination is not supported by substantial evidence. This matter is remanded so that the treating physicians' reports and opinions can be fully considered along with the rest of the record, without bias. Since the ALJ in this matter appears wed to her findings and methodology which the court finds problematic, at best, the court directs that this matter be reviewed by a different ALJ. There should be a new medical opinion adduced which encompasses all of the medical and PT evaluations through the time of the second ALJ hearing. Such does not exist in this record. Neither the ALJ or a reviewing court should be put in the position of attempting to opine on medical matters.
2. Alternative Work
Plaintiff additionally claims the ALJ failed to demonstrate that there exists substantial, gainful and alternative work in significant numbers at a medium level which plaintiff could perform. Here, the ALJ has found that Khon is capable of making a vocational adjustment to alternative work which exists in significant numbers, and is consequently not disabled according to the definition of the SSA. (R. at 203.)
Generally, an ALJ will consult the Dictionary of Occupational Titles (DOT), a publication of the United States Department of Labor that contains descriptions of the requirements for thousands of jobs that exist in the national economy, in order to determine whether any jobs exist that a claimant can perform.Boone v. Barnhart, 353 F.3d 203, 205-06 (3d Cir. 2003); Burns v. Barnhart, 312 F.3d 113, 119 (3d Cir. 2002). However, when the claimant has both exertional and nonexertional impairments, in order to meet her "burden of proof" at the step five inquiry into alternative work, the ALJ must employ the testimony of a VE or "similar evidence." Sykes v. Apfel, 228 F.3d 259, 273 (3d Cir. 2000). Without such evidence in addition to the grids, the Commissioner cannot establish that there are jobs in the national economy that someone with the claimant's combination of impairments can perform. Id.
Here, the ALJ utilized a VE because of plaintiff's nonexertional impairments. Testimony of a VE typically includes, and often centers upon, one or more hypothetical questions posed by the ALJ. Burns, 312 F.3d at 120 (citing Podedwomy v. Harris, 745 F.2d 210, 217 (3d Cir. 1984)). The ALJ asked the VE to identify medium level unskilled jobs, taking into account Khon's inability to communicate in English, her shoulder impairments, her lack of formal education, and her left-eye blindness. (R. at 223.)
At the first hearing, in 2000, VE Walker testified that the claimant was capable of three jobs, "cleaner," "hand packager," and "mold injection machine operator," and, respectively, that 7,716, and 1,660, and 1,160 jobs existed locally, and that over 100,000 existed for each job nationally. (R. at 179.) At the second hearing a VE, Ms. Levin, presented vocational evidence. VE Levin testified that of the three jobs previously identified by VE Walker as being suitable alternative work for plaintiff and existing in significant numbers in the national economy, only the cleaner and hand packager were suitable. (R. at 223.) VE Levin testified that the position of mold injection operator was not suitable because of Khon's monocular vision. The ALJ agreed that VE Walker had made an error and credited VE Levin's conclusion that only the jobs of cleaner and hand packager were appropriate for Khon. (R. at 203.)
VE Levin also stated the job of Dishwasher would be appropriate for plaintiff. (R. at 224.) However, the ALJ did not include Dishwasher in her findings of what jobs were suitable. (R. at 203.)
• Cleaner
Regarding the job of "cleaner," the record is unclear as to which position in the DOT the ALJ determined was appropriate for plaintiff. At the 2000 hearing, VE Walker testified that Khon was capable of performing the DOT listings of "cleaner" at number 381.687-010. (R. at 181.) However, this number was given in error. In the DOT, "381.687-010" corresponds not to any cleaner, but instead to a "central supply worker." 3 Dictionary of Occupational Titles 282 (2003). This job is listed as having a Specific Vocational Preparation ("SVP") level of four, meaning that between three and six months preparation is required. Id. at 3 1009. It appears that a SVP of four is inappropriate for Khon, a non-English speaking woman with no formal education or relevant work experience. Even assuming the numerical designation is only an inadvertent labeling error, this court cannot speculate as to which "cleaner" job was determined to be appropriate, as many types of "cleaners" are listed in the DOT.
The section of the 2003 edition DOT used here is a duplicate of the 1993 edition used in the Khon hearings.
• Hand Packager
Both VEs Walker and Levin found that hand packager would be an appropriate position for plaintiff. However, the DOT lists the hand packager jobs as having a "Language Development" level of two, indicating the need for command of the English language capable of "[reading] adventure stories and comic books, looking up unfamiliar words in dictionary for meaning, spelling, and pronunciation . . . [and writing] compound and complex sentences." 3 Dictionary of Occupational Titles 1011. In addition, the DOT requires an ability to "speak clearly and distinctly with appropriate pauses and emphasis, correct pronunciation, variations in word order, using present, perfect, and future tenses." Id. It is undisputed that Khon cannot read or speak English. Thus, Khon cannot satisfy the requirements of a Language Development Level two job.
Occupational evidence provided by a VE generally should be consistent with the occupational information supplied by the DOT.See SSR 00-4p, 2000 WL 1898704, *2. SSR 00-4p requires the ALJ to ask the VE whether any possible conflict exists between the VE's testimony and the DOT, and that, if the testimony does appear to conflict with the DOT, to "elicit a reasonable explanation for the apparent conflict . . ." Burns v. Barnhart, 312 F.3d 113, 127 (3d Cir. 2002) (quoting SSR 00-4p, 2000 WL 1898704). Without being given an objective basis for an opinion, the ALJ cannot rely upon the resulting VE's mere assertion to support a conclusion that the person is not disabled. See SSR 00-4p, 2000 WL 1898704, *4. SSR 00-4p requires that the explanation be made on the record and that the ALJ explain in her decision how the conflict was resolved. Id. When there is a conflict between VE evidence and the DOT, neither automatically prevails. Id. at *2. However, it is essential that the ALJ adequately resolve the conflict by providing "a basis for relying on the VE . . . testimony rather than on the DOT information." Id.
Here, the conflict between the Language Development level and Khon's actual abilities could be overcome by an explanation from the VE that a requirement listed in the DOT is not essential, owing to the actual training practices and performance of the job. While VE Walker addressed this issue in the 2000 hearing, his explanation did not give a sufficient explanation of why the language level required by the DOT was not applicable in this case. (R. at 181-82.) VE Walker merely agreed with the ALJ when asked if these were "the type of jobs . . . that can normally be learned by someone watching a demonstration of how to do the job." (Id.) VE Walker did not give specific explanation to each position, nor did he address how the plaintiff would communicate with supervisors or receive necessary safety and performance directions, nor did he address the number of positions available where only demonstration would be adequate. Accordingly, VE Walker's comment or assertion is not sufficient to resolve the conflict between his testimony and the DOT.
In her latter decision, the ALJ does not raise or discuss the conflict. She does not explicitly incorporate VE Walker's prior testimony on the subject, nor does she reference it in any way. Likewise, VE Levin was never asked to re-examine the issue to update the vocational record or to expand on VE Walker's explanation. (R. at 181-82.) Because the relevant time period for disability and symptoms had changed from the previous hearing, this court cannot assume that the prior assertion of plaintiff's capabilities, particularly one that is not incorporated into the current decision, resolves the direct conflict between the VE testimony and the DOT. Further, it appears that the ALJ found by inference that VE Walker's analyses lacked credibility, as he was found to have erroneously testified that the mold injection operator job was appropriate for plaintiff and was found to have given an incorrect DOT number for the cleaner position. There is no explanation why the ALJ found him to be otherwise reliable. SSR 00-4p places upon the ALJ the burden to resolve with adequate explanation any conflict between the DOT and VE opinion. That burden has not yet been satisfied.
VII. Conclusion
The plaintiff's motion for summary judgment is denied. The defendant's motion for summary judgment is also denied. This matter is remanded to the Commissioner for further proceedings consistent with this opinion.
An appropriate order follows.
ORDER
AND NOW, this ____ day of September, 2004, in consideration of Plaintiff's Motion for Summary Judgment, Defendant's Motion for to Summary Judgment, oral argument, and the record, it is hereby ORDERED that:1. The both Motions for Summary Judgment are DENIED;
2. This case is REMANDED in accordance with the fourth sentence of 42 U.S.C. § 405(g) to the Commissioner of the Social Security Administration.