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finding a serious procedural error where the ALJ relied, in part, upon evidence not in the record at the time of the hearing and failed to issue a proffer letter to plaintiff
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CAUSE NO. 1:02-CV-278
June 25, 2003
MEMORANDUM OF DECISION AND ORDER
I. INTRODUCTION
This matter is before the Court for judicial review of a final decision of the defendant, Commissioner of Social Security ("Commissioner"), denying the application of the Plaintiff, Sandra Lovellette (the "Plaintiff'), for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") beginning March 8, 2000.
Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting.
Section 205(g) of the Social Security Act ("the Act") provides, inter alia, "[a]s part of [her] answer, the [Commissioner] shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the case for a rehearing." It also provides, "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive . . ." 42 U.S.C. § 405(g).
For the following reasons, the Commissioner's final decision will be REMANDED.
II. THE PROCEDURAL AND FACTUAL BACKGROUND
A. The Procedural Background
On March 9, 2000, the Plaintiff filed an application for DIB and SSI with social security, alleging an onset date of March 8, 2000. Social Security denied the Plaintiffs claim initially, and upon reconsideration. The Plaintiff then requested an administrative hearing, and on January 3, 2001, the Administrative Law Judge Bryan Bernstein (the "ALJ") conducted a hearing at which the Plaintiff was represented by counsel and testified. Also testifying were James Lovellete, the Plaintiff's husband, and Edward Pagella, a vocational expert ("VE").
More than 15 months later, on April 9, 2002, the ALJ issued his decision wherein he made the following findings:
1. The claimant meets the nondisability requirements for a period of disability and Disability Insurance Benefits set forth in Section 216(i) of the Social Security Act and is insured for benefits through the date of this decision.
2. The claimant has not engaged in substantial gainful activity since the alleged onset of disability.
3. The claimant's lumbar disc disease is a severe impairment, based upon the requirements in the Regulations ( 20 C.F.R. § 404.1521).
4. This medically determinable impairment does not meet or medically equal one of the listed impairments in Appendix 1, Subpart F, Regulation No, 4.
5. The undersigned finds the claimant's allegations regarding her limitations are not reliable.
6. The claimant has no transferable skills from any past relevant work and/or transferability of skills is not an issue in this case ( 20 C.F.R. § 404.1568).
7. The claimant has the following residual functional capacity: lift and carry up to 15 pounds, and requires a sit/stand option. She also requires a restroom readily available to her work.
8. The claimant is unable to perform any of her past relevant work ( 20 C.F.R. § 404.1565).
9. The claimant is an "individual [sic] closely approaching advanced age" ( 20 C.F.R. § 404.1563).
10. The claimant has "a limited education" ( 20 C.F.R. § 404.1564).
11. The claimant has the residual functional capacity to perform a significant range of light work ( 20 C.F.R. § 416.967).
13. [sic] Although the claimant's exertional limitations do not allow her to perform the full range of light work, there are a significant number of jobs in the national economy that she could perform.
14. [sic] The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision 20 C.F.R. § 404.1520(f).
(Tr. at 20-21.)
Based on these findings, the ALJ determined that the Plaintiff was not entitled to DIB or SSI as of March 8, 2000. The Plaintiff requested review by the Appeals Council, which was denied on July 5, 2002, leaving the ALJ's decision as the final decision of the Commissioner. This appeal followed.
The Plaintiff filed his opening brief on April 28, 2003. The Commissioner responded with her "Memorandum in Support of the Commissioner's Decision" on June 12, 2003, and the Plaintiff replied on June 23, 2003.
B. The Factual Background
The Plaintiff was fifty years old as of the date of the ALJ's decision, a "person closely approaching advanced age" as defined in the Act. See 20 C.F.R. § 404.1563(d).
The Plaintiff was forty-eight years old in March 2000, the date of her alleged disability, a "younger person" as defined by the Act. 20 C.F.R. § 404.1563(c).
Although the Plaintiffs hearing testimony is unclear on the matter, it appears she dropped out of school at age 15 before completing the seventh grade. (Tr. at 115.) Moreover, her scholastic records for the seventh grade indicate extremely poor performance for a 15-year old, scoring a "D" average, with one F, and no grade higher than a "C+." (Tr. at 115.) Additionally, the Plaintiff's school records indicate an IQ score of 69. (Tr. at 116.)
During the hearing, the ALJ asked the Plaintiff "How far did you go in school?" to which she responded "7th grade." (Tr. at 248.) However, the ALJ never asked her whether she completed the seventh grade or how old she was at the time, or whether she had ever been held back.
The Plaintiff previously worked in light to medium exertional level positions in shipping/receiving and as a trophy assembler. (Tr. at 79).
The Plaintiff claims a disability due to a back condition and bladder problems.
On March 8, 2000, the Plaintiff saw her family doctor, Dr. Herbert Acker, complaining of low back pain she claims to have had for years, but which had become incapacitating with radiation into the left buttock. (Tr. at 126.) She complained that this back pain negatively impacted her ability to perform basic work, for example, she noted that she had dropped several boxes. ( Id.) On physical examination Dr. Acker noted that there was a slight loss of lumbar lordosis but no obvious scoliosis. ( Id.) Although he found no particular lumbar tenderness, he believed that her straight-leg raising test was somewhat positive on the left at 75 degrees. ( Id.) Her reflexes were normal, and she could heel-and-toe walk. ( Id.) Dr. Acker diagnosed the Plaintiff with lumbar radiculitis. ( Id.) He prescribed Depo-Medrol, Vioxx, and Flexeril. ( Id.)
On March 16, 2000, the Plaintiff reported that her neck pain was better, but that her lower back pain continued to be a significant problem. ( Id.) Dr. Acker believed that she probably had some other muscular disease such polymyalgia. ( Id.) During his examination, Dr. Acker noted no significant leg discrepancy, but he noticed that her left leg is significantly larger in girth than the right, which suggested a problem with venous valvular competence. ( Id.) He planned additional tests for inflammatory disease, and placed the Plaintiff on Relafen. ( Id.)
On March 22, 2000, the Plaintiff saw Dr. Acker for a follow-up examination which showed some tenderness over the area just lateral to the S1 joint on the left with pain radiating into her upper left leg. (Tr. at 125.) The Plaintiffs range of motion for her hip was normal. but she complained of knee pain. ( Id.) Dr. Acker prescribed Prednisone and physical therapy. ( Id.)
On that same day, the Plaintiff saw Craig Shannon, a physical therapist. (Tr. at 8687.) She told the therapist that she had been waking up at night on an hourly basis because of her low back pain, which she described as a dull, constant ache with occasional shooting pain into the left posterior hip and upper thigh. (Tr. at 86.) She related that she experienced swelling of the left leg over the past couple of weeks, and rated her low back dysfunction as 53 percent. ( Id.)
During the physical examination, the Plaintiff demonstrated increased pain with lumbar extension and decreased pain with flexion. ( Id.) Additionally, her hip flexors and internal rotators were tight, but abdominal strength was 4/5. ( Id.) Her posture and awareness of body mechanics was poor to fair. ( Id.) Five functional goals were set for her, including demonstrating proper posture and body mechanics, maintaining a posterior pelvic tilt with functional activities, establish a home exercise program, return to work without low back pain, and the ability to tolerate bowling without low back pain. ( Id.)
Mr. Shannon made a final report on the physical therapy on May 1, 2000, noting that she had attained all of her goals. (Tr. at 123.)
On May 11, 2000, Dr. Acker noted that the Plaintiff had somewhat disappointing results and continued to complain of significant pain and discomfort; thus, he referred her for orthopedic consultation. (Tr. at 125.)
On April 27, 2000, the Plaintiff saw Dr. Michael McArdle, an orthopedic surgeon. (Tr. at 148.) Dr. McArdle noted that she had some low back pain radiating to her left buttock area down her leg, apparently caused by a motor vehicle accident 27 years earlier. ( Id.) During the physical examination, the Plaintiffs straight-leg raising was negative, and while a CT scan showed small arthritic facet joints, he rated those joints as fairly good overall. ( Id.) The Plaintiff noted that she was frustrated about her back pain as it kept her from the doing the things she wanted to do. ( Id.) Dr. McArdle then scheduled an MRI. ( Id.)
On May 11, 2000, Dr. McArdle went over the results of the MRI with the Plaintiff, and he noted that they looked fairly good, although she had some degenerative facet joints. (Tr. at 146.) Moreover, while the Plaintiff talked about low back pain with left radiculopathy, Dr. McArdle noted that there was no surgical lesion. ( Id.) Thus, she was referred to Dr. Ronald VanDerNoord for further evaluation and possible injection. ( Id.)
On May 15, 2000, the Plaintiff saw Dr. Birjis Chinoy for a consultative exam at the request of Social Security. (Tr. at 92-94) During the examination, the Plaintiff complained of low back problems as well as pain in her left leg. (Tr. at 92.) She told him that she could carry up to about five pounds without pain, and that she woke up every hour at night because of pain. ( Id.) However, apparently she did not have any problems bending, and in fact, bending somewhat relieved her pain. ( Id.) During the physical examination, the Plaintiffs gait was antalgic, there was paravertebral spinal tenderness, her strength was 4/5, but was limited by pain in the proximal and distal group of muscles in the lower extremities, knee jerks, ankle jerks, and plantars were normal, sensory deficits were absent in both lower extremities, and the range of motion in her dorsal lumbar spine was limited. (Tr. at 93-94.) Dr. VanDerNoord diagnosed the Plaintiff with chronic low back pain and radiculopathy. (Tr. at 93)
On May 26, 2000, the Plaintiff returned to see Dr. VanDerNoord, who reviewed the laboratory test results. ( Id.) He noted that she had an anterior wedge deformity at T12. ( Id.) A CT scan indicated that she had some dextroscolosis at L2-3 and a leg length discrepancy. ( Id.) He also noted that she had undergone a Doppler ultrasound which was normal and did not show any deep venous thrombosis. ( Id.)
During the examination, the Plaintiff primarily complained of isolated centralized low back discomfort which radiated into the left buttock and left lower extremity. ( Id.) He noted that she had a preexisting history of bladder pathology, but she had not recently noticed any change in her bowel or bladder control or habits. (Tr. at 141.) She told them that sitting, standing, lifting, and lying on her stomach along with walking and driving seemed to exacerbate her symptoms. ( Id.) She noted that the physical therapy had been somewhat useful and that her medications had been intermittently beneficial. ( Id.) She stated that deep heat and ice had been helpful with her pain. ( Id.) On physical examination she did not display any inappropriate pain behavior. (Tr. at 142.) Otherwise, the exam was fairly normal. ( Id.) Dr. VanDerNoord diagnosed her with chronic axial low back discomfort with segmental dysfunction, leg length discrepancy with secondary dextroscoliosis, possible posterior element dysfunction/facet syndrome, and probable secondary lumbosacral myofascial pain. ( Id.) However, he found no clinical evidence for lumbar radiculopathy, caudal equinal syndrome, intrinsic hip dysfunction, or sacroiliac pathology. ( Id.)
Dr. VanDerNoord recommended diagnostic facet joint nerve blocks to rule out pain from the posterior elements. (Tr. at 143.) He also felt it prudent to correct the leg length discrepancy and treat her symptoms symptomatically. ( Id.) Thus, he prescribed a corrective orthosis as well as a trial of Vioxx and Ultram for breakthrough pain. ( Id.) He directed the Plaintiff to follow up with further evaluation and treatment recommendations with Dr. Mark Zolman. ( Id.)
On June 8, 2000, the Plaintiff saw Dr. Mark Zolman. (Tr. at 107-109.) He reviewed and summarized her history and treatment, and noted that the heel lift orthosis provided by Dr. VanDerNoord and the medications he prescribed had apparently been helpful. (Tr. at 107.) During Dr. Zolman's physical examination, the Plaintiff was able to make a transition independently from sitting to standing, and on and off the examination table. (Tr. at 108.) Dr. Zolman noted that she was bowlegged and flat footed. ( Id.) Her gait was nonantalgic, and there was evidence of forefoot pronation, worse on the right. ( Id.) Inspection of her spine showed convex right lumbar scoliosis. ( Id.) There was tenderness in the bilateral sacroiliac joints, and left lumbar paraspinals with muscle guarding in the right lumbar paraspinals. ( Id.) The Plaintiffs range of motion for the lumbar spine was within functional limits; however, she had increased pain with extension maneuvers. ( Id.) Quadrant loading of the lumbosacral spine was positive bilaterally, and she exhibited decreased sensation to light touch in the left S1 distribution with intact joint position sense. ( Id.) The Plaintiffs strength was normal throughout her legs except for left extensor hallucis longus which was 4/5. (Id.)
Dr. Zolman noted that the MRI of the lumbar spine showed degenerative changes primarily involving the lower lumbar facets and mild degenerative disc changes with an old anterior wedge compression deformity at T12. (Tr. at 109.) He diagnosed the Plaintiff with lumbar facet syndrome, chronic low back and left leg pain, possible left lumbar radiculopathy, and leg length discrepancy. ( Id.) Dr. Zolman recommended that the Plaintiff receive lumbar medial branch blocks to see if her pain came from the facets. ( Id.) If the tests were diagnostic, then he recommended that she undergo radiofrequency ablation. ( Id.) He noted that there had been multiple studies which did show the safety and efficacy of such procedures provided a diagnostic response to the nerve block. ( Id.)
Radiofrequency ablation, as explained in the information provided to the Plaintiff by Dr. Zolman, is a non-surgical treatment in which radio waves are used to produce heat to deaden nerve cells and reduce the ability to transmit pain "messages." However, the information also indicates that the treated nerves regrow within 6 months to 1 year, at which time a repeat treatment may be necessary. (Tr. at 111-112.)
On June 15, 2000, Dr. VanDerNoord performed diagnostic bilateral L3, L4, and L5 facet joint nerve blocks based on her clinical presentation, radiographic imaging studies, and the failure to progress with other conservative measures. (Tr. at 134-139.) Dr. VanDerNoord reported she tolerated the procedure well without complications or inappropriate pain behavior. (Tr. at 138.) She did have significant relief immediately, but she did have some left leg numbness which was expected to resolve spontaneously. (Tr. at 139.)
On June 23, 2000, the Plaintiff had a follow-up visit with Dr. VanDerNoord, who noted that she had a clearly diagnostic response to the nerve blocks with almost complete mitigation of her pain for four hours; however, the pain returned which was expected. (Tr. at 132.) He explained that with these results, she was a candidate for radiofrequency ablation, and he discussed in detail the realistic long and short-term prognoses along with the risks. ( Id.) At that time she elected to postpone scheduling of this treatment; however, Dr. VanDerNoordleft it open for her to schedule the procedure in the future even over the phone. ( Id.)
On July 25, 2000, Dr. VanDerNoord provided a "letter of medical necessity" as it pertained to the Plaintiffs insurance policy. (Tr. at 117-118 and 192.) In the letter, he reported that based on her diagnosis, the next step was to proceed with radiofrequency ablation/neurotomy. (Tr. at 117.) He cited literature and studies indicating that this was an appropriate standard of care in her case. (Tr. at 118)
The Plaintiff decided to go ahead and schedule the ablation procedure; however, on August 22, 2000, she contacted the doctor's office and requested that the surgery be rescheduled to a later date because she needed to have some other tests run. (Tr. at 190.) Furthermore, she indicated she was canceling at the advice of her attorney so she could receive a second opinion. (Tr. at 191.)
On September 11, 2000, she saw Dr. Jonathan Norton, a podiatrist, because on September 9, 2000, her back gave out and she fell on her foot. (Tr. at 186-187.) She went to the St. Joseph Emergency Room where an X-ray was taken, and she was told to follow up at his office for a fracture of her right foot. (Tr. at 186.) The Plaintiff reported some pain and swelling in the foot, and she had been trying to stay off it as much as possible. ( Id.) Dr. Norton diagnosed her with fifth metatarsal base fracture of the right foot, and scheduled her for surgery. (Tr. at 187.)
On September 12, 2000, Dr. Norton performed open reduction, internal fixation of the fifth metatarsal base of the right foot. (Tr. at 182-184)
The Plaintiff continued to see Dr. Norton on a regular basis, and she was in a cast until it was removed on November 9, 2000. (Tr. at 167-175.) On that date X-rays showed healing of the fifth metatarsal base structure. (Tr. at 167.) However, Dr. Norton noted that there was a problem with a screw coming loose, which was causing irritation and needed to be removed. (Tr. at 167) Until that procedure was complete, Dr. Norton recommended that the Plaintiff use a walker, or crutches as tolerated. ( Id.)
On November 10, 2000, Dr. Norton removed the screw and on November 21, 2000, he released her from the hospital. (Tr. at 155)
After the hearing, the ALJ contacted Dr. Zolman by letter. On February 2, 2001, Dr. Zolman responded by reporting that the Plaintiff had decided not to proceed with radiofrequency ablation. (Tr. at 151.) In his opinion, the Plaintiff would have difficulty lifting more than 20-25 pounds, and she would have difficulty with repetitive bending and twisting-type activities as well as prolonged standing and walking. ( Id.) He felt her remaining capacity at that time was for the performance of sedentary activities. ( Id.) However, in his opinion, with radiofrequency ablation she could have increased her capacity to perform light level work. ( Id.)
On March 2, 2001, the Plaintiff returned to see Dr. VanDerNoord. (Tr. at 196.) She told him that after having taken some significant time to consider the ablation procedure, she had decided to proceed. ( Id.)
On March 13, 2001, Dr. VanDerNoord performed the ablation procedure on several levels of the medial branch nerves. (Tr. at 201-209.) The Plaintiff tolerated the procedures without complications, and she displayed no inappropriate pain behaviors. (Tr. at 208.) She had excellent sensory and motor stimulation at each level, and the doctor thought she should have good results. ( Id.)
On April 6, 2001, the Plaintiff saw Dr. VanDerNoord in his office for the first time after the procedure. (Tr. at 210.) She told him that the procedure had taken the edge off, and the pain was not as severe. ( Id.) She stated that almost all of the pain in her low back with sitting had been resolved; however, she still had residual low back pain with household activities. ( Id.) Thus, the procedure has unfortunately not relieved any of her hip pain which would effectively rule out contribution from the posterior elements to her hip symptoms. ( Id.) Dr. VanDerNoord encouraged her to see Dr. Zolman. ( Id.)
On June 5, 2001, the Plaintiff followed up with Dr. Zolman. (Tr. at 212-213) She reported that in general her symptoms were about the same as when he last saw her a year earlier, and prior to the radiofrequency ablation. (Tr. at 212.) Dr. Zolman noted that unfortunately, the procedure did not provide any long-term relief of her symptoms. ( Id.) The Plaintiff continued to have some edema in her left lower extremity and described her pain as 9/10 at its worst and 4/10 at its best. ( Id.) Dr. Zolman's physical examination revealed a nonantalgic gait, a moderately limited range of lumbar spine motion, and increased abnormal curvature of the spine. (Tr. at 212213.) Dr. Zolman diagnosed the Plaintiff with lumbar facet syndrome with non-therapeutic medial branch ablation despite diagnostic response, chronic low back and left leg pain, possible lumbar radiculopathies, and leg length discrepancy. ( Id.)
III. STANDARD OF REVIEW
To be entitled to Social Security benefits, the Plaintiff must establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months. . . ." 42 U.S.C. § 416(i)(1); 42 U.S.C. § 423(d)(1)(A). A physical or mental impairment is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). It is not enough for the Plaintiff to establish that an impairment exists. It must be shown that the impairment is severe enough to preclude the Plaintiff from engaging in substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840, 844 (4th Cir. 1962); Garcia v. Califano, 463 F. Supp. 1098 (N.D. Ill. 1979).
A five step test has been established to determine whether a claimant is disabled. See Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 482, U.S. 137, 107 S.Ct. 2287, 2290-91 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test as follows:
The following steps are addressed in order: (1) Is the claimant presently unemployed? (2) Is the claimant's impairment "severe"? (3) Does the impairment meet or exceed one of a list of specific impairments? (4) Is the claimant unable to perform his or her former occupation? (5) Is the claimant unable to perform any other work within the economy? An affirmative answer leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than step 3, stops the inquiry and leads to a determination that the claimant is not disabled.Nolen v. Sullivan, 939 F.2d 516, 518 (7th Cir. 1991) (citing Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987)); Nelson v. Bowen, 855 F.2d 503, 504 n. 2 (7th Cir. 1988); accord Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001); Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001). A claimant has the joint burdens of production and persuasion through at least step four, where the individual's residual functional capacity ("RFC") is determined. Yuckert, 482 U.S. at 146 n. 5; 20 C.F.R. § 404.1545, 416.945. At step five, the Commissioner bears the burden of proving that there are jobs in the national economy the plaintiff can perform. Herron v. Shalala, 19 F.3d 329, 333 n. 18 (7th Cir. 1994). From the nature of the ALJ's decision to deny benefits, it is clear that step five was the determinative inquiry.
IV. DISCUSSION
Given the foregoing framework, "[t]he question before [this court] is whether the record as a whole contains substantial evidence to support the [Commissioner's] findings." Garfield v. Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) (citing Whitney v. Schweiker, 695 F.2d 784, 786 (7th Cir. 1982); 42 U.S.C. § 405(g)); Burnett v. Bowen, 830 F.2d 731, 734 (7th Cir. 1987). "Substantial evidence" has been described as "more than a mere scintilla." Anderson v. Bowen, 868 F.2d 921, 923 (7th Cir. 1989). It means, "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. . . ." Id. (quoting Richardson v. Perales, 402 U.S. 389 (1971); see also Allen v. Weinberger, 552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed . . . unless there has been an error of law." Garfield, 732 F.2d at 607; see also Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).In the present case, the ALJ found that the Plaintiff had not engaged in any substantial gainful activity since the alleged onset date. At step two, the ALJ found that the Plaintiffs impairments were severe; however, the ALJ found that the Plaintiffs impairments did not meet or exceed one of the listed impairments under step three. Under step four, the ALJ found that the Plaintiff is unable to perform her past relevant work. However, under step five, the ALJ found that the Plaintiff was capable of performing a significant number of jobs in the regional economy, and was thus, not disabled.
The Plaintiff contends that the ALJ's decision is not supported by substantial evidence because he (A) failed to consider whether she met the requirements for Listing 12.05(C); (B) improperly considered her non-compliance with a prescribed course of treatment and failed to follow Social Security's rules of accepting post-hearing evidence; (C) failed to comply with SSR 83-14 in determining whether significant work existed under step 5 of the sequential analysis; (D) improperly determined that she had a "limited education" rather than a "marginal education" and (E) failed to comply with Social Security Ruling ("SSR") 00-4p.
A. The ALJ Failed to Address Listing 12.05(C)
The Plaintiff first claims that the ALJ committed reversible error by failing to consider whether she met the requirements for mental retardation, Listing 12.05(C).
Listing 12.05 defines mental retardation as "a significantly sub-average general intellectual functioning with deficits in adaptive behavior initially manifested during the developmental period (before age 22)." Under Listing 12.05(C), a claimant is considered disabled due to mental retardation when she has "[a] valid verbal, performance, or full scale I.Q. of 60 through 70 and a physical or other mental impairment imposing additional and significant work-related limitation of function." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05(C); Blakes v. Barnhart, ___ F.3d ___, 2003 WL 21278799, *5 (7th Cir. June 4, 2003); Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir. 1999). The Plaintiff bears the burden of proving that she satisfies all of these criteria. Maggard, 167 F.3d at 380.
The Commissioner contends that the Plaintiffs argument is "patently groundless" because Plaintiff never alleged mental retardation to be an impairment on the Disability Report she submitted along with her application for disability benefits. (Commissioner's Resp. Br. at 8.)
The Commissioner also defends the ALJ's failure to address Listing 12.05(C) on the theory that the Plaintiff cannot be mentally retarded because she "was a productive member of the workforce for many years and the record indicates that [her] social and personal functioning were substantially normal[.]" (Commissioner's Br. at 8.) Although we have serious misgivings about the logic undergirding this argument, we can simply ignore it because it seems to advance grounds the ALJ never offered. Golembiewski v. Barnhart, 322 F.3d 912, 916 (7th Cir. 2003) ("principles of administrative law preclude the Commissioner's lawyers from advancing grounds in support of the agency's decision that were not given by the ALJ.").
However, the failure to allege an impairment in the Disability Report does not conclusively waive it from consideration. After all, the Plaintiff apparently completed her Disability Report without the assistance of an attorney, and doubtless, referring to oneself as "mentally retarded," regardless of actual IQ, is difficult. Moreover, the Seventh Circuit recognizes that an ALJ has the duty to consider an unclaimed impairment where there is evidence that should have "alerted the ALJ [of] another relevant impairment that could contribute to the cumulative effect of her other impairments." Clifford v. Apfel, 227 F.3d 863, 873 (7th Cir. 2000) (ALJ should have considered effect of obesity even though not alleged in the Disability Report).
Here, there was sufficient evidence to alert the ALJ about a serious issue regarding the Plaintiffs mental functioning. Significantly, the Plaintiffs school records from the 7th grade clearly state that she has an IQ of 69, which places her squarely within the parameters of Listing 12.05(C). (Tr. at 116.) Indeed, this condition is further reflected by the fact that as a 15 year-old 7th grader (we are unsure whether she was held back a grade or two), the Plaintiff could muster only a "D" average, with one "F" and no grade better than a "C+" (Tr. at 115.) Moreover, during the hearing, the Plaintiff testified that she quit school because she was "stupid," and could not even comprehend written material in a newspaper. (Tr. at 249-251.)
Accordingly, this evidence was sufficient to place the ALJ on notice that there was a serious issue regarding the Plaintiffs intellectual functioning and whether she met the requirements for Listing 12.05(C). Accordingly, the ALJ's decision must be remanded for further consideration of this point.
B. The ALJ Improperly Considered the Plaintiffs Non-Compliance and Failed to Follow the Rules for Post-Hearing Evidence
Next, the Plaintiff argues that the ALJ improperly considered her failure to undergo a radiofrequency ablation procedure recommended by Dr. Zolman. Of course, the Plaintiff ultimately underwent this procedure, albeit after the administrative hearing, which leads to the Plaintiffs second complaint, that the ALJ admitted post-hearing evidence without following the due process requirements spelled out by Social Security in its Hearing, Appeals, and Litigation Law Manual ("HALLEX") I-2-7-30(a).
In the ALJ's decision, he found that the Plaintiff's non-compliance with a suggested course of treatment, the radiofrequency ablation, rendered her incredible:
The claimant's testimony and discussions of impairments are not reliable [i.e., not credible]. The claimant's account of her capacity is inconsistent with the assessment of her physicians. The claimant admitted that she had declined treatment physicians predicted would relieve pain and improve her capacity; when she finally underwent the treatment, physicians reported that their estimations were confirmed.
(Tr. at 16.)
The Plaintiff argues that this is a misuse of the non-compliance regulation. 20 C.F.R. § 404.1530(a) provides that "[i]n order to get benefits, you must follow treatment prescribed by your physician if this treatment can restore your ability to work." The failure to do so without good reasons will result in a denial of benefits. 20 C.F.R. § 404.1530(b); see also SSR 82-59 (the failure to follow prescribed treatment may result in finding of not disabled if the evidence establishes that the individual is disabled, prescribed treatment is clearly expected to improve capacity to work and yet claimant refused to follow prescribed treatment); Shramek v. Apfel, 226 F.3d 809, 812 (7th Cir. 2000).
However, the trouble with this argument is that the ALJ apparently only considered the Plaintiffs non-compliance in making his credibility determination, rather than using the noncompliance regulation to find the claimant not disabled. Nevertheless, the Plaintiff also argues that even under Social Security's rules for assessing credibility, the ALF's decision should be remanded. A credibility assessment is entitled to special deference because the ALJ is in the best position to see and hear the witness and determine her credibility, and will not be overturned unless it is "patently wrong." Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001); Shramek, 226 F.3d at 811. However, where, as here, credibility determinations "rest on objective factors or fundamental implausibilities rather than subjective considerations such as a claimant's demeanor," this special deference drops out, Clifford, 227 F.3d at 872, and we must consider whether the ALJ has built a logical bridge between the evidence and the result. Shramek, 226 F.3d at 811.
Social Security also provides rules for when it is appropriate to consider non-compliance in a credibility assessment:
[An] individual's statements may be less credible . . . if the medical reports or records show that the individual is not following the treatment as prescribed and there is no good reason for this failure. However, the adjudicator must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide[.]
SSR 96-7p.
Here, because the ALJ's credibility assessment suffers from fatal gaps and is marred by obvious defects, it must be remanded. To begin with, the ALJ has not provided any indication that he considered the reasons why the Plaintiff refused to undergo the procedure prior to the hearing, as specifically required by SSR 96-7p, so we are left to speculate as to whether there was good reason for the Plaintiffs delay. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002) (ALJ must articulate his decision such that the reviewing Court can follow the path of his reasoning); Zuraswski, 245 F.3d at 887.
The Commissioner's argument that the ALJ's credibility assessment was not solely based on other objective medical evidence is misplaced in this proceeding because the ALJ never advanced these grounds in support of his decision. See Golembiewski, 322 F.3d at 916.
But more fundamentally, it is particularly troubling that the ALJ found the Plaintiff incredible based on her supposed failure to have the radiofrequency ablation when she ultimately underwent that procedure. After all, if we are to believe that her hearing testimony lacked credibility because she had not undergone the procedure at that time, then doesn't the fact that she later had the procedure make her more credible now? According to both the ALJ and the Commissioner, we should not even consider this question because, they claim, the ablation worked, improving her condition, and showing her to be incredible regardless of the time frame. However, this claim that the procedure worked is simply not supported by the evidence. After all, while the procedure initially "[took] some of the edge off' of the Plaintiffs back pain, (Tr. at 210-211) (noting that the Plaintiffs back pain was about 20% better), any improvement was short lived since it lasted only "a few days to a few weeks but then [the Plaintiff's] symptoms returned to [their] original level." (Tr. at 212.) Accordingly, the ALJ's credibility determination is not supported by substantial evidence and must e remanded.
Of course, all of this underscores serious procedural errors made by the ALJ in collecting post-hearing evidence which he then ostensibly used against the Plaintiff. In Tom v. Heckler, the Seventh Circuit stated that "[t]he use of an adverse post-hearing report without an opportunity to cross-examine its author and to present rebuttal evidence has been held to violate a claimant's right to due process of law." Tom v. Heckler, 779 F.2d 1250, 1252 n. 2 (7th Cir. 1985) (emphasis added). This is because 42 U.S.C. § 405(b) requires the Commissioner to give an applicant an opportunity for a hearing, and if a hearing is held, to make her decision on the basis of evidence adduced at that hearing. Lonzollo v. Weinberger, 534 F.2d 712, 714 (7th Cir. 1976). But when the Commissioner bases her final decision on evidence not presented at the hearing, and when the claimant lacks notice and the opportunity to rebut that evidence, then a due process violation occurs. Id.
To ensure compliance with due process, the HALLEX I-2-7-30(a) requires the ALJ to submit a proffer letter to the Plaintiff which
1. give[s] the claimant a time limit to object to, comment on, or refute the evidence, or [to] exercise his or her rights with respect to requesting a supplemental hearing and the opportunity to cross-examine the author(s) of any post-hearing report(s); and
2. if the ALJ is proposing to enter medical reports into the record as exhibits, also inform[s] the claimant of the right to:
1. submit the new evidence to a treating source(s); and
2. submit any comments from the treating source(s) to the ALJ for inclusion in the record.
HALLEX 1-2-7-30(b).
In this case, because the ALJ's adverse decision was based, in part, on evidence that was not in the record at the time of the hearing, he should have issued a proffer letter for the new evidence he proposed to make part of the record. Indeed, his failure to do so is cause for remand.
C. The ALJ Failed to Comply with SSR 83-14
The Plaintiff also argues that this case should be remanded because the ALJ's decision fails to cite examples of occupations/jobs that she can functionally and vocationally perform.
SSR 83-14 requires that
Whenever vocational resources are used [as in this case], and an individual is found to be not disabled, [ALJ's] decision will include (1) citations of examples of occupations/jobs the person can do functionally and vocationally and (2) a statement of incidence of such work in the region in which the individual resides or in several regions of the country.
SSR 83-14 (emphasis added).
Here, the ALJ stated that "The vocational expert testified that the claimant is capable of making a vocational adjustment to other work. The vocational expert testified that the light and sedentary occupational bases are eroded by 85%. He testified that there are 6800 unskilled jobs at the sedentary exertional level of exertion [sic], and 31,900 unskilled jobs at the light exertional level within the Fort Wayne community." (Tr. at 20.)
The Commissioner claims that the ALJ properly relied on the testimony of the VE to support his decision. However, this reasoning clearly evinces a fundamental misunderstanding of the Plaintiffs argument, which is not that the ALJ relied on a VE, but rather that the ALJ failed to state, in his decision, what jobs the Plaintiff has the capacity to perform. Of course, all the ALJ had to do was look at the VE's testimony for those specific occupations. (Tr. at 273) (testifying that the Plaintiff could perform work as an assembler, packer, and sorter), but his failure to identify any jobs or occupations at all was legal error, requiring remand. See Prince v. Sullivan, 933 F.2d 598, 602-03 (7th Cir. 1991) ("Although this court reviews the ALJ's determination for substantial evidence, we are not in a position to draw factual conclusions on behalf of the ALJ. . . . [and] we will hold ALJs to the requirements set out in [the SSRs] by the Secretary.").
D. ALJ Improperly Found that the Plaintiff had a "Limited Education"
Next, the Plaintiff argues that the ALJ improperly determined that she had a "limited education" rather than a "marginal education." The regulations state that Social Security "generally considers] . . . a 7th grade through the 11th grade level of formal education [to be] a limited education," while a marginal education is "formal schooling at a 6th grade level or less." 20 C.F.R. § 404.1564(b)(2) (3).
In this case, the ALJ found, without much discussion, that the Plaintiff has a 7th grade education. However, the school records in evidence indicate that while she attended the 7th grade, she never finished it. (Tr. at 115.) Since Social Security looks to the "numerical grade level you completed in school" in making this determination, it is apparent that the Plaintiff actually has a marginal, rather than a limited, education, a point the Commissioner evidently concedes. 20 C.F.R. § 404.1564(b); (Commissioner's Resp. Br. at 11, n. 1.)
Nevertheless, the Commissioner argues that whether the Plaintiffs education is marginal or limited is simply irrelevant because the grid rules do not distinguish between a marginal and limited education. (Commissioner's Br. at 11, n. 1.) However, because the ALJ determined that the Plaintiff is not capable of performing a full range of light work, the grid rules do not control and this distinction is relevant. Indeed, the Plaintiff drives this point home by citing to statistical data for the Fort Wayne metropolitan area that indicates that there are between 73-81% fewer jobs at the sedentary and light exertional levels for those with a "marginal" education than for those with a "limited" education. ( See Pl.'s Reply, Attach. 1, "Unskilled Employment Quarterly.") Since this reduction might whittle away at the number of positions identified by the VE, the ALJ should have included the fact that the Plaintiff had a marginal education in the hypothetical question posed to the VE.
Accordingly, because the ALJ incorrectly assessed the Plaintiffs educational level, and failed to include that information in the hypothetical posed to the VE, this matter must be remanded.
E. Whether the VE's Testimony Conflicted with the Dictionary of Occupational Titles
Finally, Plaintiff argues that the ALJ had the duty to inquire of the VE about whether his testimony regarding occupational evidence conflicts with information provided by the Dictionary of Occupational Titles ("DOT"), but failed to elicit such testimony here. SSR 00-4p states that the ALJ "has an affirmative responsibility to ask about any possible conflict between the VE . . . evidence and information provided in the DOT," and if there is a conflict, the VE should explain it, and the ALJ must ultimately resolve it. In this case, the ALJ did not make this initial inquiry.
Nevertheless, the Commissioner argues that the ALJ was not required to inquire about any such conflict because a Seventh Circuit case, in dicta, summarized SSR 00-4p as requiring "an explanation [of the conflict] only if the claimant (or the ALJ on his behalf) noticed the conflict and asked for his substantiation." Donahue v. Barnhart, 279 F.3d 441, 446-447 (7th Cir. 2002) (emphasis added). The Plaintiff responds that this language from Donahue directly contradicts SSR 00-4p because it places no duty on the ALJ to inquire about a conflict unless it is brought up at the hearing, and urges us to ignore it as dicta.
However, we need not resolve this dispute here; since this case is being remanded on multiple issues, on remand, the ALJ should inquire of the VE about any conflicts between the VE's testimony and the DOT.
F. Scope of the Remedy
Having determined that this case must be remanded on each of the substantive issues raised by the Plaintiff, we must next determine the proper scope of the remedy. In her brief, the Plaintiff requests that we order this case remanded to a different ALJ or at least recommend to the Commissioner that she assign it to a different ALJ because of the alleged bias of ALJ Bernstein.
The Plaintiff argues that the ALJ is biased because "[he] formed a preconceived opinion, independent of the sequential analysis of evidence, then misstated the evidence to fit his [pre]ordained conclusion." (Pl.'s Br. at 21.) However, in pointing to the specific examples of bias, she only points to the errors we have addressed supra, and complains that the ALJ took "an unreasonably long 15 months to issue a decision." ( Id.)
The right to trial by an impartial decision maker is a basic requirement of due process. In re Murchison, 349 U.S. 133, 136 (1955). A tribunal must not only be unbiased but must also avoid even the appearance of bias. See Commonwealth Coatings Corp. v. Cont'l Casualty Co., 393 U.S. 145, 150 (1968); SECv. Antar, 71 F.3d 97, 101 (3rd Cir. 1995). Such is the "sine qua non" of the American legal system. Haines v. Liggett Group, Inc., 975 F.2d 81, 98 (3rd Cir. 1992).
However, in addressing claims of bias, we must begin with the presumption that the ALJ was unbiased, see Schweiker v. McClure, 456 U.S. 188, 195-196 (1982), which can be rebutted by showing that the ALJ "displayed deep-seated and unequivocal antagonism that would render fair judgment impossible," Liteky v. United States, 5 10 U.S. 540, 556 (1994), or had a conflict of interest or some other reason for disqualification that was so extreme as to deprive the Plaintiff of the fundamental fairness mandated by due process. Schweiker, 456 U.S. at 195-196. After all, "expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women . . . sometimes display" do not establish bias, Liteky, 510 U.S. at 555-56, instead, evidence is required that the decision maker "had it in" for the party for reasons unrelated to the officer's view of the law. McLaughlin v. Union Oil Co., 869 F.2d 1039, 1047 (7th Cir. 1989).
However, in reviewing the record in this case, the Plaintiff has clearly failed overcome the presumption that the ALJ is unbiased. Indeed, the hearing transcript does not reveal that the ALJ engaged in intimidation and anger tactics to shorten the hearing, refused to hear evidence, or denied the Plaintiff the ability to cross examine witnesses. Indeed, at the heart of the Plaintiffs claim is that the ALJ revealed his bias through his decision. However, rulings alone are almost never sufficient evidence of bias. Liteky, 510 U.S. at 555; Marozsan v. United States, 90 F.3d 1284, 1290 (7th Cir. 1996). In fact, the record does not even reveal an inference of an "extrajudicial source" of bias or otherwise suggest that the ALJ "had it in" for the Plaintiff. McLaughlin, 869 F.2d at 1047 (7th Cir. 1989).
Although we do not cite it as authority, we note that the Ninth's Circuit's unpublished decision in Bronson v. Barnhart, 56 Fed. Appx. 793, 793, 2003 WL 329292, *1 (9th Cir. Feb. 13, 2003), is one of the few cases we could locate in which the court found actual bias. In that case, the court was struck by the ALJ's "abusive conduct" like repeatedly interrupting counsel's direct and cross-examinations to berate the claimant's attorney, and questioning the attorney's competence, including accusing her of being from "outer space" or having just returned from her "spaceship." Id.
As for the ALJ's rather lackadaisical adherence to the HALLEX requirements for post-hearing evidence, such obvious shortcomings, as discussed supra, are grounds for remand, but certainly do not reveal any "deep-seated and unequivocal antagonism" against the Plaintiff. Liteky, 510 U.S. at 556.
Finally, we are uncertain why it took the ALJ 15 months to issue a nine-page decision, particularly since the record is not overly large (indeed, it only contains about one and a half years' worth of medical records), and the alleged impairments are common. Of course, while the Plaintiff claims this time delay reveals the ALJ's bias, such a delay standing alone fails to demonstrate the antagonism necessary to prove bias.
Nevertheless, the delay here is troubling, and in fact it is at least the fourth case we have seen from this ALJ with such a lag between the hearing and his decision. See, e.g., Sunday v. Barnhart, 1:02-CV-23 (N.D. Ind. Jan. 23, 2003) (Cosbey, Magis. J.) (unpublished order) (11 month delay); Liscano v. Barnhart, 230 F. Supp.2d 871 (N.D. Ind. 2002) (Cosbey, Magis. J.) (12 month delay); Carradine v. Barnhart, 2002 WL 32073071, 1:02-CV-122 (N.D. Ind. Oct. 22, 2002) (Cosbey, Magis. J.) (16 month delay). Indeed, in most of the Social Security appeals this Court sees, the ALJs have issued competent decisions within weeks, or at most, a few months. The Court believes that fifteen (15) months of delay is unreasonable, particularly since most social security claimants are seeking these benefits to pay for a medical procedure or life's basic necessities. Although we infer no bias from this delay, the ALJ should strive for greater efficiency in the future.
CONCLUSION
For the forgoing reasons, the decision of the ALJ is not supported by substantial evidence and must be REMANDED to the Commissioner for a new hearing consistent with this order. SO ORDERED.