Opinion
Civ. No. Y-98-4157.
October 1999.
Vincent J. Piazza, Esquire, Baltimore, Maryland, counsel for Plaintiff.
Honorable Lynn A. Battaglia, United States Attorney, Baltimore, Maryland, and Allen F. Loucks, Assistant United States Attorney, Baltimore, Maryland, counsel for Defendant.
MEMORANDUM OPINION
This case is before the Court on cross motions for summary judgment. The Plaintiff, Valerie A. McIntosh, filed an application for Supplemental Security Income ["SSI"] on January 31, 1994, alleging that she had been disabled since May 1, 1985, due to arthritis in her hands, knees, back and ankle, trigger points damage, headache, backache, vision problems, diabetes, vascular disease, sarcoidosis, and nerve damage to the spine and legs. She was 48 years old at the time of her application. McIntosh had achieved a tenth grade education and, over the previous fifteen years, had worked as an armored car driver and a security guard.
Her application was denied initially and on reconsideration. She filed a timely request for a hearing and appeared before the Administrative Law Judge ["ALJ"] on January 31, 1997, represented by her attorney. In a written opinion issued on June 24, 1997, the ALJ found McIntosh was not disabled under the Act. On October 28, 1998, the Appeals Council denied McIntosh's request for review and affirmed the ALJ's decision.
On December 23, 1998, McIntosh filed this action under § 205(g) of the Social Security Act ["Act"], 42 U.S.C. § 405(g) and 1383(c)(3), seeking review of a final decision made by Commissioner of Social Security ["Commissioner"] denying her claim for SSI.
I. STANDARD OF REVIEW
The primary function of this Court in reviewing Social Security disability determinations is not to try the plaintiff's claim de novo, but rather to leave the findings of fact to the Agency and determine upon the whole record whether the Agency's decision is supported by substantial evidence. Coffmann v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence is more than a scintilla, but less than a preponderance of the evidence presented. Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). It is such evidence that a reasoning mind would accept as sufficient to support a particular conclusion. Id. Ordinarily, if the Court finds substantial evidence, then it must uphold the ALJ's decision. Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986). The ALJ's factual findings, however, are not binding on the court if they were "reached by means of an improper standard or misapplication of the law." Coffmann, 829 F.2d at 517.
The Commissioner has promulgated regulations that set forth a sequential, five-step process for determining a claimant's eligibility for benefits under the Act. The details of this process are well-documented elsewhere. See, e.g., Baker v. Chater, 957 F. Supp. 75, 77-78 (D. Md. 1996).
II. THE ALJ'S FINDINGS
In the first step of the analysis, the ALJ found that McIntosh has not engaged in substantial gainful activity since January 31, 1994, when she filed her application for SSI. Proceeding to steps two and three, the ALJ found that the medical evidence established that McIntosh suffers from a variety of "severe" impairments, but none meeting the criteria of the "Listing of Impairments." In step four, the ALJ determined that McIntosh cannot perform her past relevant work, but is able to perform some sedentary work or work requiring maximum lifting of ten pounds and a minimal amount of walking and standing.
Osteoarthritis of the knees, muscle strain of the lumbar and cervical spines, diabetes mellitus, and vascular disease.
The ALJ found in step five that McIntosh is a "younger individual," has a "limited" education, and has acquired some work skills from her past jobs that are transferable to other work. Although she is unable to perform the full range of sedentary work, the ALJ concluded, after receiving testimony from a vocational expert ["VE"], that there are a significant number of jobs that McIntosh could perform in the national economy. The ALJ then concluded, using Rule 201.18, Table 1, Appendix 2, Subpart P, Regulations No. 4, as a "framework," that McIntosh is not disabled as defined in the Act.
Examples of these jobs are: (1) security monitor (400 jobs locally, 1,300 jobs statewide, and 72,000 jobs nationally); (2) telephone salesperson/surveyor (750 jobs locally, 1,900 statewide, and 110,000 nationally); and (3) information clerk (475 jobs locally, 1,100 statewide, and 65,000 nationally).
III. DISCUSSION
A. Hypothetical Questions to the Vocational Expert
McIntosh first alleges that the ALJ's hypothetical question to the vocational expert ["VE"] did not precisely set forth all of her physical and mental limitations. In particular, McIntosh points to two possible shortcomings in the ALJ's approach both resulting from a colloquy with the VE. First, she claims that the hypothetical question was imprecise because the ALJ asked "Let's assume you were limited" in the second hypothetical. This inquiry, she suggests, asked the VE to put himself in the place of a person who was limited to sedentary work with the need to alternate positions. Second, McIntosh alleges that the ALJ's questions — e.g., "is limited to sedentary" with "a need to alternate position" — were too imprecise and contradictory to elicit meaningful answers.
The colloquy was as follows:
ALJ: Assume we have an individual same age, education, past work experience as the claimant. For the purpose of this hypothetical, light physical exertion, 20 pounds maximum, ten ponds [sic] or less on a frequent basis with a need to alternate positions. With these limitations, are there any jobs such an individual could perform?
VE: Yes, Your Honor. There are light positions that would require standing while perform [sic] the duty but there would be opportunities throughout the day in which the individual would be able to sit. That would be positions such as [gate tender, security industry, arcade attendant, usher, and lobby attendant].
ALJ: Okay. Second hypothetical. Let's assume if you were limited to a sedentary, ten pounds maximum, less than that on a frequent basis, with a need to alternate position, any jobs?
VE: Yes, Your Honor. There are sedentary positions that you can consider that have a sit/stand, with a sit/stand option. There would be security monitor, sedentary, unskilled, entry level. . . . Also, Your Honor, consider a position as telephone sales/surveyor. . . . And finally, Your Honor, consider a position of information clerk, unskilled, sedentary. . . .
For the VE's testimony to be credible, the ALJ must elicit it with proper hypothetical questions that fairly set out the claimant's impairments. Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). The purpose of this requirement is to ensure that the VE knows and understands the claimant's abilities and limitations.Id. at 51. In this case, the Court finds that the VE's testimony was credible and constituted substantial evidence. In the first scenario, it is clear from the record that the VE understood that the ALJ was not asking him to put himself in the hypothetical. The ALJ simply asked a follow up question, based on the same hypothetical person in a slightly altered situation. Furthermore, even if the VE was somehow misled by the ALJ's line of questioning, McIntosh's attorney cleared up any misunderstanding when he asked the VE to repeat the second hypothetical. The VE responded that it pertained to "an individual that is limited to sedentary work and the limitations were similar to the first [hypothetical]. . . ." Tr. 493.
Similarly, it is clear that the phrasing of the ALJ's questions did not cause any confusion to the VE. In response to the question where the ALJ used the complained-of language (i.e., "is limited to sedentary" with "a need to alternate position"), the VE discussed sedentary positions with a sit/stand option. This response indicates not only that the VE understood the thrust of the ALJ's question, but also that the VE and the ALJ were considering occupations that take into account the plaintiff's limitations.
McIntosh also claims that the Commissioner failed to carry his burden because the VE provided evidence of only three occupations in the entire economy at which she could work. Because this testimony eliminated 98.5% of all sedentary occupations recognized by the Commissioner, McIntosh disputes the ALJ's finding that her work capacity has not been significantly compromised.
This claim is clearly without merit. The VE was not asked to provide an exhaustive list of occupations, and his testimony made clear that these occupations were merely examples. Moreover, even if the list were exhaustive, the VE testified that approximately 1625 such jobs existed locally and over 4,000 statewide. Tr. 492. This number of jobs provides an adequate occupational base to support the ALJ's determination. See Hicks v. Califano, 600 F.2d 1048, 1050 (4th Cir. 1979).
B. Doctors' Reports
McIntosh next claims that, in posing the hypothetical question to the VE, the ALJ failed to accord "great weight" to the reports of the treating physicians. In particular, she refers to reports submitted by Doctors Han, Kim, Banda, and Piscotta, some portions of which contain support for plaintiff's claims that she is disabled. The important point, however, is that some portions of the doctors' reports are exactly in line with the ALJ's conclusion that McIntosh is not disabled. A physician's statement that a claimant is disabled or unable to work is not determinative of the claimant's disabled status, Baker v. Chater, 957 F. Supp. 75, 80 (D. Md. 1996), and a treating physician's testimony does not have to be given controlling weight, Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996). The Commissioner will give a physician's opinions controlling weight only if the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant's] case record." 20 C.F.R. § 416.927(d)(2).
Here, the ALJ formulated his hypothetical question to the VE based on Dr. Banda's January 23, 1997, report, which concluded that McIntosh could sit for prolonged periods of time and did not need to spend significant periods of time lying down. Tr. 17, 299-302. The Court finds that the ALJ's reliance on Dr. Banda's report was proper. Because Dr. Banda gave this report after having treated McIntosh for 16 months, the ALJ was entitled to give it more weight than the other reports, which were compiled after short periods of treatment. See 20 C.F.R. § 416.927(d)(2)(i); Tr. 285, 289, 292, 403.
Moreover, the ALJ was not beholden to give great weight to any of the doctors' reports unless he found them to be medically supported and not inconsistent with the other evidence in the record. 20 C.F.R. § 416.927(d)(2). When medical testimony differs, the ALJ need not give significant weight to opinions of treating physicians that conflict with the conclusions of other physicians. See Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984); Baker v. Chater, 957 F. Supp. 75, 80 (D. Md. 1996). The expert opinions of Doctors Han, Kim, Banda, and Piscotta contain contradictory conclusions about the McIntosh's limitations. For example, whereas Doctors Han and Kim opined that McIntosh did not have the endurance to remain in a seated position for six hours out of an eight hour period, Dr. Banda concluded in both 1995 and 1997 that she did have the requisite endurance. Tr. 285, 289, 293. Given these conflicting opinions, the ALJ was entitled to give greater weight to Dr. Banda's 1997 conclusions.
Furthermore, the ALJ's hypothetical was fully in line with Dr. Piscotta's assessment that McIntosh was precluded from work as a security guard or an armored car operator. Tr. 403. Aside from being a conclusory opinion entitled to little weight,see Baker, 957 F. Supp. at 80, Dr. Piscotta's report referred only to McIntosh's past occupations, which the ALJ agreed she was unable to perform. Tr. 20.
C. Grid Rules
McIntosh also asserts that the ALJ improperly applied the medical vocational guidelines, or "grid rules," to determine that she was not under a disability. The grid rules "take administrative notice of the availability of job types in the national economy for persons having certain characteristics, namely age, education, previous work experience, and residual functional capacity." Grant v. Schweiker, 699 F.2d 189, 191-92 (4th Cir. 1983). Each table in the grid, however, considers only the strength or "exertional" component of the claimant's disability. Id. at 192. For that reason, the regulations provide that where the claimant's impairment is non-exertional, or combines exertional and non-exertional limitations, the grid rules are not conclusive. Instead, the claimant must be given full individualized consideration. Id. Where the claimant's residual functional capacity ["RFC"] does not coincide with one of the defined exertional ranges of work, the ALJ may have to consult a VE to ascertain whether specific jobs exist that would accommodate the claimant's RFC. SSR 83-12.
The ALJ properly followed the regulations. Taking into account McIntosh's allegations of pain, Tr. 17, the ALJ found that McIntosh's "capacity for the full range of sedentary work is diminished by the requirement that she be allowed to alternate between sitting and standing." Tr. 17, 20. The ALJ then used grid rule 201.18 as a "framework" and questioned the VE on the issue of job availability. Tr. 20.
McIntosh claims, however, that she suffers non-exertional limitations that were not considered by the ALJ, citing the above-mentioned doctors' reports and two episodes of blurry vision in 1993. The ALJ, however, was not required to give great weight to any of these reports unless he found them to be medically supported and not inconsistent with the other substantial evidence in the record. 20 C.F.R. § 416.927(d)(2). Because these reports contain contradictory conclusions, the ALJ acted within his discretion in placing the greatest weight on Dr. Banda's 1997 report, where Dr. Banda concluded, after 16 months' experience with McIntosh, that she could maintain the requisite concentration to perform in a competitive workplace, and had no significant restrictions in her capacity for stooping, bending, climbing, or crouching. Tr. 301-02.
Although this report also indicated that McIntosh's impairments would preclude her exposure to work environments involving significant amounts of dust, smoke, or fumes, Tr. 301, previous reports reached the opposite conclusion and the ALJ noted in his opinion that McIntosh's lung x-rays were generally clear. Tr. 15, 17. The ALJ was also concerned with the credibility of the claimant's statements concerning her impairments because of the low level of medical treatment required to treat them. Tr. 17 (mentioning clear lungs). Accordingly, the ALJ acted on the basis of substantial evidence.
Equally meritless is McIntosh's claim that the Commissioner failed to show that section 201.00(h) of the grid rules is not applicable. Section 201.00(h) prescribes criteria for determining whether a "younger individual" qualifies as disabled when restricted to sedentary work. This section makes clear that persons between the age of 45 and 49 who are limited to sedentary work, like McIntosh, should qualify as disabled if they are also unskilled and illiterate or otherwise unable to communicate. § 201.00(h). There is no evidence that McIntosh has no skills or is illiterate; thus, this part of the rule does not apply. The rule also provides two examples of particular applications of the criteria. In both cases, the hypothetically-disabled individual suffers a severe non-exertional impairment that further narrows the range of any sedentary work. Because McIntosh has no severe impairment, these examples are inapposite.
D. Sit/Stand Option
McIntosh also asserts that the ALJ's use of a sit/stand option in her claim is not based on substantial evidence and is contrary to the Commissioner's ruling in SSR 83-12. This claim rests on McIntosh's interpretation of SSR 83-12, which, in her estimation, allows the ALJ to employ a sit/stand option only in cases where the claimant has professional or managerial skills and has an RFC between sedentary and light.
McIntosh, however, has misread SSR 83-12. This Ruling points out that jobs with a sit/stand option are typically professional and managerial, but then notes that "a Vocational specialist should be consulted to clarify the implications for the occupational base." SSR 83-12. This is exactly what the ALJ did. Furthermore, there is no indication in SSR 83-12 that the sit/stand option applies only to individuals with an RFC between sedentary and light.
E. Consideration of all Impairments
Finally, McIntosh asserts that the ALJ failed to consider all of her impairments singularly or in combination. The Commissioner has a duty to consider the combined effect of a claimant's impairments without fragmenting them. Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). Here, the ALJ has met this duty. The record clearly shows that the ALJ reviewed the medical evidence and found that most of McIntosh's alleged impairments either had no effect on her ability to work or could be controlled with proper diet and medication.
IV. CONCLUSION
Based on the foregoing analysis, the Court finds that the ALJ's decision is supported by substantial evidence. The Plaintiff's Motion for Summary Judgment, therefore, will be denied. The Commissioner's Motion for Summary Judgment will be granted and judgment entered for the Commissioner.
ORDER
In accordance with the attached Memorandum, it is this ___ day of October 1999, by the United States District Court for the District of Maryland, ORDERED:
1. That Plaintiff's Motion for Summary Judgment BE, and the same IS, DENIED; and
2. That Defendant's Motion for Summary Judgment BE, and the same IS, hereby GRANTED; and
3. That judgment BE, and the same IS, hereby ENTERED for the Defendant; and
4. That copies of this Memorandum and Order be mailed to counsel for the parties.