Opinion
No. 9:01-CV-28
April 10, 2003
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case is referred to the undersigned United States Magistrate Judge for review, hearing if necessary, and submission of a report with recommended findings of fact and conclusions of law.
See 28 U.S.C. § 636(b)(1)(B) (2001) and Loc.R. CV-72 App. B, R.1(H) for the Assignment of Duties to United States Magistrate Judges.
I. Nature of the Case
Plaintiff seeks judicial review of the Commissioner of Social Security Administration's (SSA) decision denying plaintiff's application for Social Security benefits. The court has jurisdiction pursuant to 42 U.S.C. § 405(g) (1994).II. Proceedings
Plaintiff applied for Disability Insurance Benefits on November 3, 1997. Tr. 71. Plaintiff claimed inability to work as of May 2, 1994, due to degenerative disk disease, fibromyalgia, chronic fatigue syndrome, depression and pain attendant to these conditions.
The Commissioner initially denied plaintiff's application for benefits, as well as her request for reconsideration. Plaintiff timely appealed and requested a hearing before an Administrative Law Judge (ALJ).
An evidentiary hearing was held on September 21, 1999, before ALJ Arnold Battise. At that hearing, plaintiff was represented by legal counsel, Don Richardson, Esq. ALJ Battise issued a written decision on October 25, 1999. He determined that plaintiff was not entitled to benefits because she is not considered "disabled" under the governing rules.
On December 1, 2000, the Appeals Council declined to review ALJ Battise's decision. Thus, it became the Commissioner's final determination.
Plaintiff initiated this suit in federal district court on February 2, 2001. The action is timely because it was filed within the 60-day period established by statute for bringing actions for judicial review. 42 U.S.C. § 405(g).
III. Judicial Review
Judicial review is limited. The court's abbreviated role is to determine whether (a) the Commissioner applied proper legal standards and (b) the decision is supported by substantial evidence. See Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).
Substantial evidence is more than a scintilla, but less than a preponderance, Anthony v. Sullivan, 954 F.2d at 292; it requires evidence relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1427 (1971); Marcello v. Bowen, 803 F.2d 851, 853 (5th Cir. 1986) (citing Jones v. Heckler, 702 F.2d 616, 620 (5th Cir. 1983). The evidence must be "enough to justify, if the trial were submitted to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." National Labor Relations Bd. v. Columbian Enameling Stamping Co., 306 U.S. 262, 299-300, 59 S.Ct. 206, 217 (1939), cited in Harvey L. McCormick, Social Security Claims and Procedures § 672 (4th ed. 1991).
To determine whether substantial evidence exists to support the ALJ's findings, the entire record must be scrutinized carefully. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. denied 514 U.S. 1120, 115 S.Ct. 1984 (1995); Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983). The court in reviewing the record may not, however, reweigh the evidence or review the ALJ's decision de novo. Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th Cir. 1989); Neal v. Brown, 829 F.2d 528, 530 (5th Cir. 1987). Rather, it is for the Commissioner to weigh evidence and resolve conflicts. See Anthony, 954 F.2d at 295; Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir 1990).
If proper principles of law were applied, and if the Commissioner's decision is supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co., 305 U.S. at 230, 59 S.Ct. at 217); see also, 42 U.S.C. § 405(g).
By local orders of the court, complaints seeking judicial review of administrative decisions denying applications for Social Security benefits are treated as appeals. The party seeking review is required to specify alleged points of error, and to submit a brief containing legal arguments directed to those points. The Commissioner is ordered to file a brief in response. The court limits the scope of its judicial review to the points argued in the briefs.
See "Order Directing Filing of Briefs," Docket No. 9, and "Notice to Parties in Social Security Appeal Cases and Order," Docket No. 10.
IV. Eligibility For Disability Benefits
Social Security claimants bear a formidable burden of proof, "so stringent that it has been described as bordering on the unrealistic."Oldham v. Schweiker, 660 F.2d 1078, 1083 (5th Cir. 1981). Proof of the existence of a serious disease or impairment alone does not establish a disability within the meaning of the Social Security Act. Neither is a showing of general disability sufficient. Rather, in addition, a claimant must also prove inability to engage in any substantial gainful employment. See Herridge v. Richardson, 464 F.2d 198 (5th Cir. 1972);Ratliff v. Richardson, 445 F.2d 440 (5th Cir. 1971).To qualify for disability insurance benefits, the plaintiff must meet the requirements set forth in the Social Security Act ("Act"). See 42 U.S.C. § 423(a). That is, the plaintiff must be under age 65, file an application for such benefits, and be under a disability as defined by the Act. See 42 U.S.C. § 416(I), 423(a). Those claiming disability insurance benefits under the Act have the burden of showing the existence of a disability. Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir. 1979), cert. denied, 444 U.S. 952, 100 S.Ct. 428 (1979); Rhynes v. Califano, 586 F.2d 388 (5th Cir. 1978); Kirkland v. Weinberger, 480 F.2d 46 (5th Cir.), cert. denied, 414 U.S. 913, 94 S.Ct. 255 (1973).
The Act defines a disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). A physical or mental impairment is one which "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). A claimant is disabled "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).
Establishment of a disability is thus a dual process. First, the claimant must prove that he suffers from a medically determinable impairment. 42 U.S.C. § 416(I)(1), 423(d)(1)(A). Second, the claimant must prove that his impairment or combination of impairments renders him unable to engage either in the work he previously performed or other substantial gainful employment that exists in the national economy. 42 U.S.C. § 416(I)(1), 423(d)(2).-(C).
V. Sequential Evaluation Process
The law requires, in every case, that the Commissioner determine whether the claimant has a disability. See Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952 (1983). The Commissioner utilizes a five-step sequential evaluation analysis to aid in determining when claimants are disabled. If a claimant is found not to be disabled at any step, the remaining steps are not considered. 20 C.F.R. § 404.1520 (2002). This procedure has judicial approval as a fair and just way for determining disability applications in conformity with the Social Security Act. See Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 2297 (1987) (citing Heckler v. Campbell, 461 U.S. at 461, 103 S.Ct. at 1954) (The use of the sequential evaluation process "contribute[s] to the uniformity and efficiency of disability determinations").
The five steps — with explanatory parenthetical commentary — generally are as follows:
The Commissioner ascertains whether the applicant is currently engaging in substantial gainful activity . (If so, a finding of non-disability is entered and the inquiry ends.)
The Commissioner determines if the applicant's impairment or combination of impairments is severe , that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities. (If not, the inquiry ends and a finding of non-disability is entered.)
The Commissioner determines whether the severe impairment equals or exceeds those in the Listing of Impairments, 20 C.F.R. Subpt. P, Appendix 1 ("the Listings"). (If so, disability is presumed and benefits are awarded.)
The Commissioner determines whether the impairment prevents the individual from engaging in his regular previous employment . (If so, a prima facie case of disability is established and the burden of going forward (to the fifth step) shifts to the Commissioner. See Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987)).
The Commissioner determines whether other work exists in the national economy which the applicant can perform . (If the Commissioner establishes that an applicant can perform alternative employment, the burden shifts back to the applicant to show he cannot perform the alternative labor. See Id.; Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986); 20 C.F.R. § 404.1520(a)-(f) (2002)).
In conjunction with steps four and five determinations, the Commissioner utilizes a residual functional capacity ("RFC") assessment. That is, the Commissioner decides whether the applicant, notwithstanding severe impairment, has the physical and mental ability to perform the activities generally required by competitive, remunerative work. See 20 C.F.R. § 404.1545; Social Security Ruling 96-8p, 61 F.R. 34474 (July 2, 1996). The Commissioner assesses the applicant's physical, mental, and sensory abilities, evaluates how they apply to the applicant's work-related functioning, and finally considers whether the applicant can sustain work-related activities in a work setting on a regular and continuing basis. Id. Thereafter, at step four, the Commissioner determines if claimant has the physical and mental abilities to perform past relevant work. See Chaparro, 815 F.2d at 1010. If the applicant's RFC meets or exceeds the requirements of regular previous employment, the disability claim is denied. See 20 C.F.R. § 404.1561. If not, however, the inquiry must proceed to step 5 where the Commissioner has the burden to show that the applicant can do work as it is generally performed in the national economy. See Chaparro, 815 F.2d at 1010; 20 C.F.R. § 404.1566.
Residual functional capacity is defined as "what you can still do despite your limitations." 20 C.F.R. § 404.1545(a). It has three components: physical abilities, mental abilities, and other abilities affected by impairments. See 20 C.F.R. § 404.1545(a).
VI. ALJ's Decision
Following the sequential analysis framework discussed earlier, ALJ Battise made the following determinations:
Step 1: Claimant has not engaged in substantial gainful activity since May 2, 1994. Tr. 20, Finding 2.
Step 2: Claimant's degenerative disc disease is a severe impairment. Tr. 20, Finding 3.
Step 3: Claimant's impairment "does not meet or equal the criteria of any impairments listed in Appendix 1, Subpart P, Regulations No. 4 ("the Listings"). Id.
Step 4: (A) Claimant has "residual functional capacity to perform the exertional demands of light work . . . [and] no significant non-exertional limitations which narrow the range of work she could perform." Tr. 18.
(B) "[C]laimant's impairment did not prevent her from performing her past relevant work on the date her insured status expired." Tr. 20, Finding 8.
Since ALJ Battise concluded that plaintiff's residual functional capacity permitted her to perform her past relevant work, he determined that plaintiff is "not disabled" at the fourth step of the sequential evaluation process.
In his decision, ALJ Battise considered and discussed each of plaintiff's alleged impairments except chronic fatigue syndrome. He found plaintiff's degenerative disk disease to be a severe impairment. Applying the standard required by Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985), he found plaintiff's alleged mental impairment as not severe. Finally, he concluded that plaintiff's subjective complaints of pain were "not entirely credible in light of the reports of the treating and examining practitioners," and her alleged chronic pain "did not cause limitations to the extent alleged." Tr. 17-8. In reaching this decision, ALJ Battise specifically mentioned that plaintiff's "allegations are inconsistent with her appearance at the hearing. She was able to walk, sit, and move about with no observable difficulty. No fidgeting or squirming was noted." Tr. 18.
"[A]n impairment can be considered as not severe only if it is a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience." Stone at 1101, citing Estran v. Heckler, 745 F.2d 340, 341 (5th Cir. 1984) (quotingBrady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984))
VII. Points of Error
Plaintiff's raises two points of error in the "statement of issues" section of her brief. They are reprinted verbatim in the note. Both points allege that the Commissioner failed to apply proper principles of law. In light of her complaint and content of her brief, these points of error are rephrased and recharacterized for analytical convenience as follows:
Plaintiff's Complaint for Judicial Review outlines the following issues:
1. "The ALJ erred in failing to consider that Claimant suffered from Chronic Fatigue Syndrome (CFS), a medically determinable impairment, and in failing to evaluate the limiting effects of Claimant's CFS on Claimant's ability to do even sedentary work, where the ALJ noted in his decision that CFS was one of the bases for Claimant's application, and where the medical evidence and Claimant's subjective testimony indicated that Claimant exhibited symptoms of CFS;" and
2. "The ALJ erred in finding that the Claimant was not a credible witness; specifically, the ALJ engaged in 'sit and squirm jurisprudence' in determining Claimant's credibility with respect to Claimant's subjective testimony about her symptoms."
Pl.'s Br. at Statement of the Issues.
The Commissioner erred in failing to consider plaintiff's alleged impairment of chronic fatigue syndrome and to evaluate it in accordance with Social Security Ruling 99-2p; and
The Commissioner's evaluation of plaintiff's pain is flawed because ALJ Battise improperly considered plaintiff's demeanor when assessing credibility of her testimony.
VIII. Discussion and Analysis
This section addresses the above points in the same order as listed.A. Failure to Evaluate Chronic Fatigue Syndrome
1. Competing Arguments
Plaintiff asserts that the Commissioner erred as a matter of law by failing to consider and appraise all of her impairments. Plaintiff argues that the medical evidence and her subjective testimony document symptoms of chronic fatigue syndrome (hereafter "CFS"). Plaintiff contends that CFS is a medically determinable, potentially disabling impairment that should have been assessed in accordance with Social Security ruling 99-2p ("the Ruling"). Specifically, plaintiff alleges that her symptoms include impairments in short term memory and concentration, muscle and joint pain in several areas, unrefreshing sleep, aggravation of pain and fatigue upon exertion, and major depressive disorder. Pl.'s Br. at Argument. Plaintiff concedes that the Ruling requires not only symptoms, but also "appropriate medical signs or laboratory findings" before CFS is considered a medically determinable impairment However, plaintiff suggests that her diagnosed depression is one such medical sign.
In response, Commissioner Barnhart argues that ALJ Battise did not err in excluding CFS from his analysis. The Commissioner further argues that the record contains no definitive diagnosis of CFS and that "mere allegation of chronic fatigue does not compel the ALJ to make such an analysis." Deft.'s Br. at III.B. Further, "it would have been improper for the ALJ to make his own diagnosis of chronic fatigue syndrome, when that function can only be performed by a physician." Id. Finally, the Commissioner argues that the record demonstrates plaintiff's fatigue has been only intermittent and mild; therefore, it does not meet the Ruling's definition of CFS.
2. Defining and Evaluating Chronic Fatigue Syndrome
CFS is a malady that began to figure in social security disability calculus only recently. Physicians often cannot make a conclusive diagnosis at the outset of treatment, and there is no "dipstick" laboratory test for diagnosing the condition. Sisco v. United States Department of Health and Human Services, 10 F.3d 739 (10th Cir. 1993). Broadly speaking, CFS is characterized as persistent fatigue, unexplained by association with another disorder, and causing substantial reduction in functioning. Dorland's Illustrated Medical Dictionary, 29th ed., defines the condition somewhat more explicitly as follows:
The undersigned's independent research reveals no federal appellate decisions involving CFS and social security disability before 1993. The first administrative reference to CFS appears in the "Secretary's Program Operations Manual System (1993)."
A persistent, debilitating fatigue of recent onset, with reduction of physical activity to less than half of usual, accompanied by some combination of muscle weakness, sore throat, mild fever, tender lymph nodes, headaches, and depression, with the symptoms not attributable to any other source. A number of names have been used for this syndrome, including Iceland disease, benign myalgic, chronic Epstein-Barr virus infection, chronic mononucleosis, and epidemic neuromyasthenaia.
Persons who adjudicate social security disability claims need highly-developed and specific case criteria to apply in individual cases. The Commissioner provides such criteria in Social Security Ruling 99-2p which has a three-fold purpose:
A. to define CFS in accordance with the definition established by the Centers for Disease Control and Prevention ("CDC");
B. to establish requirements by which CFS can be found to be a medically determinable impairment that can be the basis for a disability finding;
C. to guide adjudicators in evaluating claims involving CFS.
Predictably and necessarily, the Commissioner's definition of CFS is elaborate. The Commissioner's definition is reprinted in the note. Of special significance is the requirement that an applicant's symptoms and fatigue associated therewith must be "of new and definite onset" and not "explained by another physical or mental disorder" that the person exhibits. Other disorders with symptoms similar to CFS include fibromyalgia, Gulf War Syndrome, depression, and neurological or psychological disorders. SSR 99-2p, 64 F.R. 23380 (April 30, 1999).
The Commissioner's definition of CFS, found in Social Security Ruling 99-2p, is as follows:
a systemic disorder,
2. with a complex of four or more symptoms that may vary in incidence, duration, and severity, which must have persisted or recurred during 6 or more consecutive months and must not have pre-dated the fatigue, examples being:
a. self-reported impairment in short-term memory or concentration severe enough to cause substantial reduction in previous levels of occupational, educational, social, or personal activities
b. sore throat
c. tender cervical or axillary lymph nodes
d. muscle pain
e. multi-joint pain without joint swelling or redness
f. headaches of a new type, pattern, or severity
g. unrefreshing sleep
h. postexertional malaise lasting more than 24 hours
i. wide range of other manifestations within these parameters (a laundry list of other possible symptoms is listed in the Ruling) characterized by prolonged (6 months or more) fatigue
a. which is of new or definite onset (not lifelong)
b. that cannot be explained by another physical or mental disorder
c. that is not caused by ongoing exertion
d. that is not substantially alleviated by rest
e. that causes substantial reduction in previous levels of occupational, educational, social, or personal activities
For Social Security disability purposes, discernible ailments must be recognized as significant enough to provide a basis for a disability finding. Social Security regulations generally do not permit a finding of disability based on subjective complaints alone. 20 C.F.R. § 404.1528(a) (2003); SSR 99-2p, 64 F.R. 23380 (April 30, 1999). Since CDC's definition permits a finding or diagnosis of CFS based on an individual's reported symptoms alone, that finding, alone, is insufficient to qualify an applicant's condition as a significant impairment. Therefore, the Commissioner imposes an added requirement. Before recognizing CFS as a medically determinable, potentially disabling impairment, the Commissioner requires that reported symptoms also be accompanied by one or more objectively observable medical signs orlaboratory findings.
"Signs are anatomical, physiological, or psychological abnormalities which can be observed, apart from your statements (symptoms). Signs must be shown by medically acceptable clinical diagnostic techniques." 20 C.F.R. § 404.1528(b) (2003).
Social Security Ruling 99-2p gives examples of signs suggesting CFS as follows:
"1. Medical Signs — one or more required:
a. palpably swollen or tender lymph nodes on physical examination
b. non-exudative pharyngitis
c. persistent, reproducible muscle tenderness on repeated examination any other medical signs that are consistent with medically accepted clinical practice and are consistent with other evidence in the case record documentation by mental status examination or psychological testing of on-going mental problems with:
short-term memory
information processing
visual-spatial difficulties
comprehension
concentration
speech
vii word-finding
calculation
other symptoms suggesting persistent neurocognitive impairment."
"Laboratory findings are anatomical, physiological, or psychological phenomena which can be shown by the use of medically acceptable laboratory diagnostic techniques. Some of these diagnostic techniques include chemical tests, electrophysiological studies (electrocardiogram, electroencephalogram, etc.), roentgenological studies (X-rays), and psychological tests." 20 C.F.R. § 404.1528(c) (2003).
Social Security Ruling 99-2p gives examples of fitting laboratory findings suggesting CFS as follows:
"2. Laboratory Findings — one or more required:
an elevated antibody titer to Epstein-Barr virus capsid antigen equal to or greater than 1:5120, or early antigen equal to or greater than 1:640 an abnormal magnetic resonance imaging brain scan neurally mediated hypotension as shown by tile table testing or another clinically accepted form of testing
any other laboratory findings that are consistent with medically accepted clinical practice and are consistent with the other evidence in the case record, e.g., abnormal stress test or abnormal sleep studies."
When claimants successfully prove that they have CFS qualifying as a medically determinable impairment, evaluation of their disability claims thereafter reverts to the customary five-step sequential evaluation process discussed earlier. At Step 1, applicants must show they are not engaging in substantial gainful activity. At Step 2, they must demonstrate that CFS symptoms cause more than a minimal limiting effect on ability to perform work-related activity. SSR 99-2p, 64 F.R. 23380 (April 30, 1999). CFS is not included in the Listings, so applicants can never show presumptive disability at Step 3. Steps 4 and 5 follow traditional analytical precepts for determining applicants' residual functional capacity and whether they are unable to perform past relevant work (Step 4), or have proven inability to perform other work proffered by the Commissioner (Step 5).
Notwithstanding absence of CFS in the Listings, Social Security Ruling 99-29 instructs administrative adjudicators to compare their findings to any pertinent listing to determine whether medical equivalence may exist. If there is a mental or psychological component to a claimant's symptoms, adjudicator should also compare findings to section 12 of the Listings. SSR 99-2p, 64 F.R. 23380 (April 30, 1999).
If the inquiry proceeds to Step 5 (where the Commissioner has the burden of proof) and the ALJ finds claimant's residual functional capacity limited to the extent of being incapable of performing the full range of sedentary work, Social Security Ruling 99-2p requires adjudicators to consider the claimant's limitations and erosion of the occupational base in determining whether the claimant can make an adjustment to other work. SSR 99-2p, 64 F.R. 23380 (April 30, 1999).
At the risk of oversimplification, an applicant seeking disability on the basis of CFS must at a minimum show the following under Social Security Ruling 99-2p:
Element Required Proof
1. To show applicant has CFS:
* 4 or more recognized symptoms;
* prolonged fatigue (a) not explained by other disorders, (b) of recent onset, (c) not caused by exertion, and (d) not alleviated by rest;
* substantial reduction in previous level of activities.
2. To show applicant's CFS is a medically determinable impairment: * 1 or more recognized medical signs or laboratory findings
3. To show applicant's CFS is disabling: * Sustain affirmative and rebutting burdens of proof through 5-step sequential evaluation process.
3. Application
Each party's opening salvo advances a position that is substantially correct. Plaintiff is generally right when arguing that an ALJ must consider all impairments and evaluate all evidence. 20 C.F.R. § 404.1520(a); 404.1508. But the Commissioner properly counters that there is no duty to evaluate a claimed impairment when it is unsupported by any medical evidence, or supported only by isolated claimant testimony that is itself insufficient to prove disability. Fraga v. Bowen, 810 F.2d 1296, 1305 (5th Cir. 1987); 20 C.F.R. § 404.1512(c).
There is no explicit reference to CFS in the entire administrative evidentiary record. No medical source mentions it. Plaintiff did not testify that she has the condition. Therefore, the tie goes to the Commissioner on the first round of the argument.
In most cases, however, absence of a specific medical diagnosis might end the matter. When CFS is at issue, the Commissioner's first round victory does not constitute a knockout. Social Security Ruling 99-2p nowhere demands a formal medical diagnosis of CFS. Moreover, the Commissioner has expressly acknowledged that a specific diagnosis of CFS is not required, because "the medical community has not reached agreement on a single set of diagnostic criteria. All the Act and regulations require is that some physical or mental impairment be established through medically acceptable clinical and laboratory diagnostic techniques." Memorandum from Susan Daniels, Ph.D., Deputy Commissioner for Disability and Income Security Programs, to Verrell L. Dethloff, Administrative Law Judge (May 11, 1998) (in Wilborn's Social Security Disability Advocate's Handbook, 3-16-19). Accordingly, ALJ Battise could not ignore plaintiff's CFS claim for lack of a medical diagnosis, and it was his duty, notwithstanding his status as a medical layman, to review the evidence and determine whether plaintiff proved that she suffered from CFS as claimed notwithstanding lack of a formal medical diagnosis. If he felt that he was incapable of doing so for lack of expertise, he had the ability to call a medical expert to assist in that endeavor. 20 C.F.R. § 404.1527(f)(2)(iii) (2003).
A medical advisor, at the request of the Social Security Administration, reviews the claimant's medical records and then gives an expert opinion as to the extent of claimant's impairment. See 20 C.F.R. § 404.1527(f)(2)(iii) (2001). When a medical professional functions as an expert witness rather than an advisor in the course of an administrative law judge hearing, Social Security Ruling 96-6p designates such professional as a "medical expert." Social Security Ruling 96-6p, 1996.
Having the Commissioner figuratively on the ropes, plaintiff also takes the next round of the argument. Plaintiff's brief points to record evidence of four or more symptoms that the Commissioner recognizes as associated with CFS. Plaintiff points to her diagnosed depression as a medical sign sufficient to satisfy the added requirement for showing CFS to be a medically determinable impairment. This evidence, if credible, was sufficient to impose on ALJ Battise a duty to evaluate plaintiff's alleged CFS within the boundaries of Social Security Ruling 99-2p. His failure to do so constituted error.
"Individuals with CFS may also exhibit medical signs, such as anxiety or depression." SSR 99-2p, 64 F.R. 23380 (April 30, 1999) (emphasis added).
Not every error is reversible, however. When the Commissioner's legal error consists of failure to follow the statute or a regulation having the force of law, reversal of the Commissioner's decision usually must follow. Newton v. Apfel, 209 F.3d 448, 458 (5th Cir. 2000). ALJ Battise's error, however, consists of failing to apply a Social Security ruling, i.e. failing to evaluate plaintiff's CFS under standards prescribed in Social Security Ruling 99-2p.
Generally, substantive regulations have the force and effect of law, and always bind private parties and the government. Moreover, they are binding on federal courts when authorized by and consistent with the statute they implement, properly promulgated, and "not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A), (C); see Chrysler Corp. v. Brown, 441 U.S. 281, 295-96 (1979); Batterton v. Francis, 432 U.S. 416, 425 (1977).
Social Security rulings constitute internal interpretations and general policy statements which do not have the force and effect of law. Morton v. Ruiz, 415 U.S. 199, 237 (1974) (administrative interpretations do not have the force of law); Skidmore v. Swift Co., 323 U.S. 134, 140 (1944); Lauer v. Apfel, 169 F.3d 489, 492 (7th Cir. 1999) (social security rulings do not have the force of law); Paxton v. Health Human Serv.s, 856 F.2d 1352, 1356 (9th Cir. 1988) ("[t]he Secretary's Social Security Rulings which are interpretive rulings 'do not have the force and effect of law') (internal citations omitted). While entitled to deference and frequently relied upon by courts, they are not binding on courts. Myers v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001) ("[t]he Social Security Administration's rulings are not binding on this court"); B. B. ex rel. A.L.B. v. Schweiker, 643 F.2d 1069, 1071 (5th Cir. 1981). Administrative failure to follow a Ruling does not necessarily constitute reversible error. Accordingly, when an ALJ errs by failing to apply a ruling, a plaintiff seeking judicial review must also demonstrate prejudice arising from that error to be entitled to relief. Hall v. Schweiker, 660 F.2d 116, 119 (5th Cir. 1981) (citing Pacific Molasses Co. v. Fed. Trade Comm'r, 356 F.2d 386 (1966)); see also Morton v. Ruiz, 415 U.S. 199 (1974).
A claimant establishes prejudice by showing that adherence to the ruling might have led to a different decision. Newton, 209 F.3d at 458 (citing Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995) (Ripley ultimately citing Kane v. Heckler, 731 F.2d 1216 (5th Cir. 1984)). Here, plaintiff has not shown that prejudice flowed from ALJ Battise's error in not applying the analysis specified in Social Security Ruling 99-2p. Plaintiff has not shown, for example, that had ALJ Battise followed the Ruling he would have concluded that plaintiff's fatigue is not explainable by reference to her other conditions, such as fibromyalgia, or that her fatigue is of new and definite onset. Plaintiff has not argued or shown that ALJ Battise would likely have altered any of his findings in the 5-step sequential analysis procedure had he first recognized CFS as a medically determinable impairment. Plaintiff has not shown that even if ALJ Battise had carried the analysis to Step 5 and concluded that plaintiff's residual functional capacity is for less than the full range of sedentary work, he would have found limitations and erosion of the occupational base such that he would be compelled to find that plaintiff cannot adjust to other work.
In short, plaintiff's first point of error — while valid to the extent of demonstrating legal error in failing to follow a ruling — ultimately fails due to failure to show attendant prejudice.
Considering Demeanor when Assessing Credibility of Plaintiff's Testimony Regarding Effects of Pain
Plaintiff testified that her disabilities are pain, fatigue, short term memory loss, and depression. Tr. 307. Plaintiff testified that her pain medication makes her "sleepy, tired, sluggish" (Tr. 302) and that her sleep disorder is caused by pain (Tr. 314). She further testified that at one point when she lived in Oregon, she was "in bed 24-7" (Tr. 301). She testified that she can sit for 30 minutes and walk for two blocks (Tr. 294-5), stand for 30 minutes (Tr. 317), cook "in short increments" and do some housekeeping (Tr. 304), use a computer for up to 20 minutes (Tr. 305), and lift 10 pounds (Tr. 306).
At the administrative evidentiary hearing, ALJ Battise questioned plaintiff regarding her pain. He did not at that time mention or question plaintiff's apparent lack of pain at the hearing. In his subsequent decision, however, he stated that plaintiff's "allegations are inconsistent with her appearance at the hearing. She was able to walk, sit, and move about with no observable difficulty. No fidgeting or squirming was noted." Tr. 18.
Pain, alone, constitutes a disabling condition when it is "constant, unremitting and wholly unresponsive to therapeutic treatment." Wren v. Sullivan, 925 F.2d 123, 138 (5th Cir. 1991). In order for an ALJ to evaluate the effect of pain in any given case, the claimant necessarily must testify subjectively regarding the nature of his or her pain. The ALJ must then make a credibility determination. While credibility is an issue for the ALJ and Commissioner to resolve, regulations and governing circuit law require that an ALJ articulate sound and plausible reasons when rejecting or discounting subjective complaints of pain. See SSR 96-7p, 61 F.R. 34483 (July 2, 1996); Abshire v. Bowen, 848 F.2d 638, 642 (5th Cir. 1988).
An ALJ may not properly discredit a claimant's testimony simply because she does not appear to exhibit pain, symptoms or discomfort during an administrative hearing. Lovelace v. Bowen, 813 F.2d 55, 59-60 (5th Cir. 1987); see also Muncy v. Apfel, 247 F.3d 728 (8th Cir. 2001); Miller v. Sullivan, 916 F.2d 659 (11th Cir. 1990). This rule is sometimes referred to as the "sit and squirm doctrine." See Muncy, 247 F.3d at 736; Miller, 916 F.2d at 422.
Plaintiff argues that ALJ Battise improperly utilized a "sit and squirm" standard. ALJ Battise did indeed recite his personal observations of plaintiff's appearance at the administrative hearing. In fact, he actually used the exact word "squirming" in his decision. However, neither the transcript of the hearing nor the ALJ Battise's written determination suggests that he discredited plaintiff's testimony based solely on personal observations of her demeanor at the administrative hearing. ALJ Battise clearly referred to several other factors in the record when analyzing plaintiff's credibility, and cited the following as justification for his finding:
a. MRI results which fail to identify an orthopedic reason for the degree of pain as alleged by plaintiff;
b. presence of positive Waddell's signs;
When evaluating patients complaining of back pain, physicians employ the term "Waddell signs" (comprising eight clinical findings) to indicate that one or more complaints of pain are not caused by physical abnormality. The presence of three or more of these findings is "usually considered sufficient to make a diagnosis of functional disorder or deliberate deception (malingering) and to rule out physical abnormality."Attorneys Medical Deskbook 3d § 11:2 (1993). Plaintiff's Waddell's Signs were reported as "positive 5 out of 5." Tr. 235.
c. plaintiff's testimony that she could walk for 1 to 2 blocks, stand for minutes, and sit for 20 to 30 minutes at a time;
d. plaintiff's ability to shop and visit the doctor on good days;
e. plaintiff's husband's statement of her ability to sew, crochet, do laundry, and dust; lack of side effects from medication; and plaintiff's ability to walk, sit, and move about with no observable difficulty at the hearing.
Tr. 18.
While exclusive reliance upon demeanor in credibility determinations is inappropriate, it is not reversible error to consider demeanor as one of several factors in evaluating a claimant's credibility. Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990). As demeanor was but one of several reasons for finding plaintiff's complaints of pain incredible, consideration of that factor was not improper. Id.
Plaintiff's second point of error also is without merit.
IX. Recommendation
The Commissioner's decision denying benefits should be affirmed.
X. Objections
Objections must be: (1) specific, (2) in writing, and (3) served and filed within ten days after being served with a copy of this report. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 1(a), 6(b), and 72(b).
A party's failure to object bars that party from: (1) entitlement to de novo review by a district judge of proposed findings and recommendations, Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error, of unobjected-to factual findings and legal conclusions accepted by the district court, Douglass v. United Servs. Auto. Ass'n., 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).