Opinion
CAUSE NO. 1:03CV12
August 29, 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, Larry Mitchell ("the Plaintiff"), for Supplemental Social Security Income ("SSI") beginning April 27, 1998.
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 May 1, 2003, the Plaintiff filed an application for SSI, alleging an onset date of April 27, 1998. Social Security denied the Plaintiff's claim initially, and upon reconsideration. The Plaintiff then requested an administrative hearing, and on April 19, 2000, the Administrative Law Judge, Brian Bernstein ("ALJ"), conducted a hearing at which the Plaintiff was represented by counsel and testified. Also testifying were Patricia Mitchell, the Plaintiff's wife, and Christopher Young, a vocational expert ("VE").
Over eight months later, on December 27, 2000, the ALJ issued his decision wherein he made the following findings:
1. The claimant has not engaged in substantial gainful activity since 1993.
2. The medical evidence establishes that the claimant has cardiovascular disease and diabetes mellitus, impairments which are severe but which do not meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4.
3. The claimant's statements concerning his impairment and its impact on his ability to work are not entirely credible.
4. The claimant has the residual functional capacity to perform sedentary exertion that is low stress, with no regimented pace and no public contact.
5. The claimant is unable to perform his past relevant work as a paint worker, press operator, quality control inspector, and dishwasher.
6. The claimant's capacity for the full range of sedentary work is diminished by the limitations noted in Finding No. 4 above.
7. The claimant is 49 years old, a "younger individual age 45-49."
8. The claimant has a high school education.
9. Based on an exertional capacity for sedentary work, and the claimant's age, educational background, and work experience, Section 416.969 and Rule 201.21, Table 1, Appendix 2, Subpart P, Regulations No. 4, would direct a conclusion of "not disabled." The same result would be reached without regard to the skill level of Mr. Mitchell's former work or to questions pertaining to transferability of work skills.
10. Although the claimant is unable to perform the full range of sedentary work, he is capable of making an adjustment to work which exists in significant numbers in the national economy. A finding of "not disabled" is therefore reached within the framework of the above-cited rule.
11. The claimant has not been 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) and 416.920(f)).
(Tr. 26-27).
Based upon these findings, the ALJ determined that the Plaintiff was not entitled to SSI as of April 27, 1998. The Plaintiff's request for review by the Appeals Council was denied in November 2002, leaving the ALJ's decision as the final decision of the Commissioner. (Tr. 8-9). This appeal followed.
The Plaintiff filed his opening brief on June 30, 2003. The Commissioner responded with her "Memorandum in Support of the Commissioner's Decision" on August 14, 2003, and the Plaintiff replied on August 25, 2003.
B. The Factual Background
The Plaintiff was 49 years old at the time of the hearing, having been born on February 12, 1951. (Tr. 106). He obtained a high school equivalency diploma. (Tr. 19). His past work was as a paint worker, press operator, quality control worker, dishwasher, and short order cook. (Tr. 158). He amended his onset date of disability to April 27, 1998. (Tr. 74).
The Plaintiff claims a disability due to an enlarged heart, high blood pressure, and diabetes mellitus. (Tr. 125).
The Plaintiff was admitted to St. Vincent Hospital on July 10, 1991, for a cardiac catheterization. (Tr. 165). He was diagnosed with left ventricular hypertrophy with near cavity obliteration and hyperdynamic systolic left ventricular function. (Tr. 170). These problems were believed to be secondary to hypertensive cardiovascular disease. (Tr. 168-69).
Left ventricular hypertrophy is a condition in which the muscle fibers of the myocardium of a ventricle (usually the left) increase in thickness (rather than in length). This results in a thickening in the walls of the ventricle. J. E. Schmidt, M.D., Schmidt's Attorneys' Dictionary of Medicine, Volume 5 V-64 (1994). (Hereinafter "Schmidt's").
On January 29, 1992, Plaintiff underwent a psychosocial assessment while incarcerated for dealing drugs. (Tr. 176-78). He was diagnosed with cocaine dependence and cannabis abuse. (Tr. 178). It was determined that treatment could be successful. (Id.).
On July 28, 1997, Dr. Robert Rauh performed a general medical examination for vocational rehabilitation. (Tr. 185-86). He found that work environments/conditions to be avoided were stress, heavy lifting, and prolonged standing or walking. (Tr. 186).
On July 9, 1997, Dr. Paul S. Martin performed a psychological assessment at the request of Vocational Rehabilitation. (Tr. 189-198). Testing by Dr. Martin showed that Plaintiff was of normal intelligence with academic skills satisfactory for associate level of studies and, possibly, bachelor level programming. (Tr. 194). However, Plaintiff did complain of diminished energy. (Tr. 194). Although he did not complete the MMPI, Dr. Martin found that Plaintiff was within normal limits from a psychological standpoint. (Tr. 197).
The MMPI test is an objective personality test composed of items that the subject scores as "true or false" applied to himself or herself. The test contains ten scales for clinical assessment and three "validity" scales to assess the person's test-taking attitude or candor. Gary B. Melton et al, Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers 632 (2d ed. 1997).
On September 19, 1997, the MMPI was given again to Plaintiff by Dr. Martin. (Tr. 187-88). Plaintiff was "putting his best foot forward" when responding, and Dr. Martin thought that the clinical profile may have underestimated Plaintiff's functional distress on a day-to-day basis. (Tr. 187). Dr. Martin found that Plaintiff suffered signs and symptoms such as weakness and easy fatigue, somatic display of psychic stress, unusual health concerns, hypochondriacal tendencies, somatic display of psychic stress, insecurity, emotional overreactivity, limited capacity to express emotion in modulated fashion, worrisome nature, and demandingness of sympathy from others. (Id.). Dr. Martin also noted that the elevations demonstrated a variety of antisocial and asocial behaviors. (Id.). Thus, he diagnosed Plaintiff as suffering from adjustment disorder with atypical features. (Tr. 188). Dr. Martin found that there is a significant psychophysiologic component at work in this case, and treatment should be considered. (Id.). However, he was of the opinion that these were probably secondary to the physical difficulties Plaintiff experienced and should remit relatively quickly in the context of appropriate care. (Id.). Finally, he concluded that Plaintiff was likely to experience exacerbated physical difficulties and concerns during stressful or trying times but, nevertheless, he opined that Plaintiff should be able to press ahead vocationally. (Id.).
The essential feature of an adjustment disorder is the development of a clinically significant emotional or behavioral symptoms and response to an identifiable psychosocial stressor or stressors. Diagnostic and Statistical Manual of Mental Disorders 623 (4th ed. 1994).
On August 21, 1997, Dr. Subodli S. Gupte, a board certified cardiologist conducted an evaluation for Vocational Rehabilitation Services. (Tr. 203-205). Dr. Gupte noted that Plaintiff was symptom free of any symptoms from a cardiovascular standpoint. (Tr. 204). He reported that an electrocardiogram performed by him of the Plaintiff definitely revealed changes suggestive of left ventricular hypertrophy with strain. (Id.). These changes were compatible with the diagnosis of hypertrophic cardiomyopathy. (Id.). The echocardiogram showed that the interventricular septum was thickened in the mid-portion. (Id.).
Hypertrophic cardiomyopathy is a disease of the muscular wall of the heart (of a noninflammatory nature) that is marked by an enlargement of the heart and overgrowth (thickening) of the muscular wall. There is also a thickening of the interventricular septum, the "partition" between the two lower chambers. The condition occurs most often in young adults and may result in sudden death when the affected individual engages in strenuous physical activity. Other patients, however, may have no symptoms at all. Schmidt's, Volume 2 at H-235.
During the systole there was a figure eight (8) pattern in the left ventricle causing mid-ventricular obstruction. (Id.). There was a very slight systolic anterior movement of the mitral valve as well as mid-systolic closure. (Id.). There was mild mitral regurgitation. (Id.). Dr. Gupte recommended that Plaintiff refrain from isometric exercises like pushing, pulling, lifting, and digging as these activities involve mostly arm movements, which were not good for Plaintiff; however, leg activities such as walking, were not necessarily harmful and may have actually proven to be useful. (Id.). Sedentary activities like desk work, counseling, and administrative work are not harmful to Plaintiff and can be continued. (Id.). Finally, Dr. Gupte noted that he was not involved in the direct care of Plaintiff. (Tr. 205).
On December 11, 1997, Dr. Javaid Iqbal, a neurologist, evaluated Plaintiff for Vocational Rehabilitation. (Tr. 180-81). Plaintiff complained of having had numbness and pain in his right arm for one month. (Tr. 180). On motor examination he had normal strength involving the arms and legs. (Id.). He had a positive Tinel's sign at the right wrist. (Tr. 181). The cervical spine showed no restrictions of movement. (Id.). Dr. Iqbal assessed Plaintiff as having underlying carpal tunnel syndrome, and he felt that testing should be done to rule out right-sided cervical radiculopathy. (Id.).
The site of local nerve damage may be identified by Tinel's sign, a distal paresthesia in the distribution of the nerve elicited by percussion over the site of the compression. The Merck Manual, 1491 (17th ed. 1999).
Radiculopathy is any disease of the roots of spinal nerves. Schmidt's, Volume 4 at R-8.
Plaintiff returned to see Dr. Iqbal on January 12, 1998. (Tr. 179). The MRI scan of the Plaintiff's cervical spine found a small herniated disc at C6-C7, which led to symptoms of numbness and pain involving Plaintiff's right arm. (Id.). His right arm EMG had shown evidence of a mild degree of C6-C7 radiculopathy. (Id.).
On January 26, 1998, Plaintiff was seen in the emergency room of Marion General Hospital. (Tr. 216-227). His chief complaint was frequent urination and increased thirst. (Tr. 219). He denied any palpitations to the front of his chest, but did complain of a generalized weakness. (Id.). He stated that this had been going on for several weeks but that it had gotten progressively worse over the last couple of days. (Id.).
An EKG was done which showed marked left ventricular hypertrophy with ST segment depression and T-wave inversion in V3, 4, 5 and 6. (Tr. 220).
The ST segment is that part of an electrocardiogram tracing which lies between the end of the S wave and the beginning of the T wave. Schmidt's, Volume 4 at 5-192. ST segment depression suggests cardiac ischemia. David A. Morton, III, M.D., Social Security Disability Medical Tests 4-68 (2002).
T-wave inversion suggests ischemia. Id. at 4-69.
The diagnostic impression was diabetes mellitus out of control with a questionable involvement of strain on the heart due to his hypertrophy cardiomyopathy and the fact that his CPK's appeared to be rising with the MB fractions also rising. (Tr. 222). There was a concern whether Plaintiff had suffered a silent myocardial infarction. (Id.).
CPK-MB is a creatine phosphokinase myocardial band which is an isoenzyme found in the heart muscle. Failure of CPK-MB to rise within 24 hours rules against the diagnosis of acute myocardial infarction (MI). Values of 5% of the total CPK may suggest a diagnosis of acute MI if other enzyme, laboratory, EKG, and clinical data are compatible with the diagnosis. CPA-MB above 40% of the total of the total CPK is strongly diagnostic of MI with compatible clinical data. Id. at 4-43.
On August 1, 1998, a consultative psychological exam was performed on Plaintiff by Dr. Jack H. Papazian at the request of Social Security. (Tr. 238-241). Dr. Papazian found that Plaintiff had cocaine dependence and cannabis abuse in remission. (Tr. 241).
On June 17, 1998, Plaintiff was evaluated by Dr. Vijay K. Kajla at the Caylor-Nickel Clinic. (Tr. 275-76). Plaintiff was diagnosed with uncontrolled type II diabetes. (Tr. 276). Dr. Kajla felt that the Rezulin alone was not controlling Plaintiff's diabetes and he should be on sulfonylurea. (Id.).
On July 8, 1998, Plaintiff was seen by Dr. C. David Steury for evaluation of his gastrointestinal problems. (Tr. 271). Dr. Steury performed a esophagogastroduodenoscopy. (Id.). In Dr. Steury's opinion Plaintiff may very well have had gastric and/or duodenal ulcers causing his pain, and he certainly required treatment for being Helicobacter positive. (Id.).
Plaintiff's eyes were also checked by Dr. Eric Purdy on July 8, 1998, and he was found to be clear of diabetes-related eye problems. (Tr. 270).
On July 24, 1998, an echocardiogram was performed on Plaintiff at Caylor-Nickel Medical Center. (Tr. 267). The test indicated that Plaintiff had significant left ventricular hypertrophy and left ventricular enlargement. (Id.).
On February 1, 1999, Dr. Bruce Waller performed an office history and physical on Plaintiff. (Tr. 284-88). He complained of mild shortness of breath and major fatigue. (Tr. 265). An electrocardiogram was performed which was markedly abnormal with deeply inverted T-waves in lateral precordial leads, anterior precordial leads and voltage criteria for left ventricular hypertrophy. (Tr. 288).
In a letter Dr. Waller stated that Plaintiff's condition put him at high risk for unexpected sudden death, and he stated that Plaintiff's congenital cardiac problem was well known for this sudden death phenomena. (Tr. 284). The sudden death can occur in an unpredictable situation, but clearly has been associated with exertional activities. (Id.). Thus, Plaintiff was to be restricted from all exertional activities. (Id.). Nevertheless, he still remained at risk for sudden unexpected death. (Id.). Dr. Waller concluded that Plaintiff was completely disabled. (Id.).
Dr. Waller supplemented his previous letter in a letter dated September 24, 1999. (Tr. 319). He stated that the word exertional applied to any form of physical activity, including lifting, walking briskly, jogging and other competitive athletics. (Id.). He noted that his type of cardiomyopathy puts Plaintiff at high risk under any of the aforementioned exertional activities. (Id.). Dr. Waller noted that Plaintiff was suited for sedentary work provided that the work did not produce stressful conditions such as deadlines and tight schedules. (Id.). He also found that Plaintiff was disabled under Listing 4.02 of the Social Security Regulations due to his left ventricular enlargement and hypertrophy, as documented by EKG and 2D echo. (Id.). Finally, Dr. Waller stated that based on an eight (8) hour day, five day a week schedule, Plaintiff would be limited to, at best, part-time work in which there were no stressful conditions, deadlines, or exertional activities. (Id.).
Dr. Emil Balasandrian also completed a questionnaire giving his medical opinions on Plaintiff's medical condition and ability to function. (Tr. 336-342). He found that Plaintiff had diabetes, GERD, cardiac murmur, hypertrophic cardiomyopathy, hypertension, nicotine dependency, renal failure, and probable neuropathy. (Tr. 336). Dr. Balasandrian found that Plaintiff had marked limitations of physical activity based upon the cardiologist's evaluation. (Tr. 337). Dr. Balasandrian also noted that stress can exacerbate symptoms and increase risk for sudden death by increasing heart rate and blood pressure. (Id.). Dr. Balasandrian found that Plaintiff was capable of performing low stress jobs. (Id.) Finally, Dr. Balasandrian found that Plaintiff could walk less than one (1) block, could stand or walk for less than two (2) hours and sit at least six (6) hours out of an eight (8) hour workday, occasionally carry up to ten (10) pounds but never twenty (20) pounds, and would miss work about three (3) times a month. (Tr. 338-41).
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. Rather, it must be shown that the impairment is severe enough to preclude the Plaintiff from engaging in substantial gainful activity. See Gotshaw v. Ribicoff, 307 F.2d 840, 844 (4th Cir. 1962), cert. denied 372 U.S. 945, 83 S.Ct. 938, 9 L.Ed.2d 970 (1963); 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. That test requires a consideration of:
(1) whether the claimant is currently employed, (2) whether the claimant has a severe impairment, (3) whether the claimant's impairment is one that the Commissioner considers conclusively disabling, (4) if the claimant does not have a conclusively disabling impairment, whether [he] can perform [his] past relevant work, and (5) whether the claimant is capable of performing any work in the national economy.
Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). A claimant has the joint burdens of production and persuasion through step four, at which the individual's residual functional capacity ("RFC") is determined. Bowen v. Yuckert, 482 U.S. 137, 146, 107 S.Ct. 2287, 2294, 96 L.Ed.2d 119, n. 5 (1987). 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. 8 (7th Cir. 1994). From the nature of the ALJ's decision to deny benefits, it is clear that steps three and five were the determinative inquiries.
RFC is "an administrative assessment of what work-related activities an individual can perform despite [his] limitations." Dixon v. Massanari, 270 F.3d 1171, 1178 (5th Cir. 2001).
IV. DISCUSSION
Given the foregoing framework, the question before the Court is whether the Commissioner's decision is supported by substantial evidence. Johansen v. Barnhart, 314 F.3d 283, 287 (7th Cir. 2002). "Evidence is `substantial' if it is sufficient for a reasonable person to accept as adequate to support the decision." Id. Accordingly, a court "will reverse the Commissioner's findings only if they are not supported by substantial evidence or if the Commissioner applied an erroneous legal standard." Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). In making the substantial evidence determination, a court will review the entire administrative record but will "not reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute . . . [its] judgment for that of the Commissioner." Id.
In the present case, the ALJ found that Plaintiff had not engaged in any substantial gainful activity since the alleged onset date. At step two, the ALJ found that Plaintiff's impairments were severe; however the ALJ found that Plaintiff's impairments did not meet or exceed one of the listed impairments under step three. Under step four, the ALJ found that Plaintiff is unable to perform his past 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, thus, was not disabled.
Plaintiff contends that the ALJ: failed to comply with Social Security Ruling ("SSR") 83-14 (1983 WL 31253) by failing at step five to list examples of occupations or jobs that he can functionally and vocationally perform; erred by finding at step three that he did not meet Listing 4.02; and failed to give proper weight to the opinions of Drs. Waller and Balasandrian, the treating physicians.
A. Failure to Comply with SSR 83-14
SSR 83-14 requires that:
Whenever a vocational resource is used [as in this case] and an individual is found to be not disabled, the [ALJ's] determination or decision will include (1) citations of examples of occupations/jobs the person can do functionally and vocationally and (2) a statement of the incidence of such work in the region in which the individual resides or in several regions of the country.
1983 WL 31253 at *6. (emphasis added). The ALJ's decision does not contain a citation to a single specific occupation or job which Plaintiff can do functionally or vocationally, nor does it state the incidence of such work in this region. Rather, the ALJ's decision merely states that:
The Administrative Law Judge asked the vocational expert whether there were jobs that an individual with the claimant's particular residual functional capacity and vocational profile could perform. The expert witness was asked to take into account the claimant's age, educational background, and employment history. The vocational expert testified that assuming Mr. Mitchell's specific work restrictions and vocational profile, such an individual would be capable of making a vocational adjustment to other work. These limitations erode the sedentary occupational base by fifty percent. However, the remaining fifty percent of the sedentary occupational base still leaves a significant number of jobs that exist in the regional and national economies.
For all the foregoing reasons, the Administrative Law Judge concludes that Mr. Mitchell retains the capacity to make an adjustment to work which exists in significant numbers in the national economy. Because the claimant is capable of making an adjustment to other work, he is not disabled within the meaning of the Social Security Act.
(Tr. at 25-26).
The Commissioner claims that the Plaintiff waived this issue by failing to ask the VE to expound on his findings at the hearing. While further testimony by the VE would have been beneficial, the Commissioner's burden-shifting argument must fail as it is the ALJ's duty to fully develop the record. See Kendrick v. Shalala, 998 F.2d 455, 456 (7th Cir. 1993 ("The process used to determine a both a claimant's abilities and the work available in today's economy is partly adversarial and partly inquisitorial. A claimant may elect legal representation, but procedures are informal. With the informality . . . comes a duty for the presiding officer to develop a complete record . . .") (citations omitted): Thompson v. Sullivan, 933 F.2d 581, 585 (7th Cir. 1991) ("A well-settled proposition regarding social security disability hearings is that it is a basic obligation of the ALJ to develop a full and fair record") (citations and internal quotation marks omitted). Furthermore, it is the ALJ's duty to "build an accurate and logical bridge from the evidence to his conclusion[,]" Clifford, 227 F.3d at 872, which he obviously cannot do if he fails to ensure that sufficient evidence is adduced. Finally, the Commissioner's argument is inapposite as the Commissioner, not the Plaintiff, bears the burden at this step of the analysis. Herron, 19 F.3d at 333.
The VE's testimony at the hearing contains no discussion of what specific jobs Plaintiff can perform.
In the alternative, the Commissioner argues that "the lack of specific job testimony does not require reversal" as the Commissioner "has taken administrative notice of the fact that the sedentary job base consists of approximately 200 separate unskilled occupations, each representing numerous positions and many more jobs in the economy." Defendant's Memorandum in Support of the Commissioner's Decision, p. 12. However, this ignores the fact that SSR 83-14 expressly requires the ALJ to specifically cite the occupations and jobs which Plaintiff could perform and the incidence of those jobs in the region.
The ALJ's failure to identify any jobs or occupations at all was legal error, requiring remand. See Prince v. Sullivan, 933 F.2d 598, 603 (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. . . . Until the Social Security Administration revokes . . . [SSR 83-14] we will hold the ALJs to the requirements set out in that ruling by the Secretary [Commissioner]"); Schmoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980) ("When the Secretary [Commissioner] . . . commits an error of law, reversal is, of course, warranted irrespective of the volume of evidence supporting the findings"). In fact, this precise issue (in an appeal from the same ALJ) was addressed by the undersigned in Lovellette v. Barnhart, 2003 WL 21918642 (N.D.Ind. June 25, 2003). As in Lovellette, the Court finds that remand is necessary for further findings by the ALJ in accordance with SSR 83-14.
B. Listing 4.02
Listing 4.02 is found at 20 C.F.R. Pt. 404, Subpt. P, App. 1. That listing is in the section containing common impairments resulting from cardiovascular disease which the Commissioner deems to be "severe enough to prevent a person from engaging in gainful activity." 20 C.F.R. Pt. 404, Subpt. 4, App. 1, § 4.00. The ALJ erred, Plaintiff contends, by not finding that he meets the requirements of § 4.02, which provides as follows:
Chronic heart failure while on a regimen of prescribed treatment (see 4.00A if there is no regimen of prescribed treatment). With one of the following:
A. Documented cardiac enlargement by appropriate imaging techniques (e.g., a cardiothoracic ratio of greater than 0.50 on a PA chest x-ray with good inspiratory effort or left ventricular diastolic diameter of greater than 5.5 cm on two-dimensional echocardiography), resulting in inability to carry on any physical activity, and with symptoms of inadequate cardiac output, pulmonary congestion, systemic congestion, or anginal syndrome at rest (e.g., recurrent or persistent fatigue, dyspnea, orthopnea, anginal discomfort);
Or
B. Documented cardiac enlargement by appropriate imaging techniques (see 4.02A) or ventricular dysfunction manifested by S3, abnormal wall motion, or left ventricular ejection fraction of 30 percent or less by appropriate imaging techniques; and
1. Inability to perform on an exercise test at a workload equivalent to 5 METs or less due to symptoms of chronic heart failure, or, in rare instances, a need to stop exercise testing at less than this level of work because of:
a. Three or more consecutive ventricular premature beats or three or more multiform beats; or
b. Failure to increase systolic blood pressure by 10 mmHg, or decrease in systolic pressure below the usual resting level (see 4.00C2b); or
c. Signs attributable to inadequate cerebral perfusion, such as ataxic gait or mental confusion; and
2. Resulting in marked limitation of physical activity, as demonstrated by fatigue, palpitation, dyspnea, or anginal discomfort on ordinary physical activity, even though the individual is comfortable at rest;
Or
C. Cor pulmonae fulfilling the criteria in 4.02A or B.
Plaintiff apparently concedes on page eleven (11) of his opening brief that the x-rays and echocardiograms performed on him did not meet the cardiac enlargement or ejection fraction requirements set forth in Listing 4.02. However, Plaintiff relies upon an echocardiogram performed by Dr. Waller in February 1999 which Dr. Waller termed "markedly abnormal[.]" Tr. 288. According to Plaintiff, the ALJ should have recontacted Dr. Waller to determine if that echocardiogram met the requirements of Listing 4.02.
On July 11, 1991, Dr. Mitchell Russ found that Plaintiff's "heart and aorta are normal." Tr. 172. A similar finding was made by Dr. Donald J. Burns on January 26, 1998. (Tr. 227). Dr. Gupte measured an ejection fraction of 73% on August 21, 1997, along with left ventricular dimensions of 2.2 cm to 3.8 cm. (Tr. 206). Finally, Dr. Kajla found an ejection fraction of 72%, along with only a "slightly enlarged" left ventricular diameter in July 1998. (Tr. 267).
Plaintiff's argument is without merit. All of the prior tests fell well short of the standards enumerated in Listing 4.02 and there is nothing to indicate that Plaintiff's condition markedly worsened between July 1998 (when the last test prior to the one in question was performed) and February 1999. Plaintiff bears the burden at step three to show that his impairment is one that the Commissioner deems conclusively disabling (i.e., the impairment meets Listing 4.02). Yuckert, 482 U.S. at 146, 107 S.Ct. 2294 n. 5. Plaintiff, therefore, was the one upon whom the burden fell to ask Dr. Waller to elaborate as to the February 1999 echocardiogram's relation to the criteria of Listing 4.02A. Plaintiff did not do so. The Court must "respect the authority of the administrative law judge to decide how much [evidence] is enough" as "one may always obtain another medical examination, seek the views of one more consultant, wait six months to see whether the claimant's condition changes, and so on." Kendrick, 998 F.2d at 456-57, 458. Given the fact that all of the other tests fell prominently short of the standards enumerated in Listing 4.02, the Court agrees with the Commissioner that the ALJ could have reasonably concluded that recontacting Dr. Waller was unnecessary.
Plaintiff argues that his hospitalization in January 1998 evidences a worsening of his condition. However, the hospitalization occurred prior to the tests performed by Dr. Kajla in June 1998. Those tests did not show that Plaintiff's condition met the requirements of Listing 4.02A. (Tr. 267).
Plaintiff's argument that 20 C.F.R. § 416.912(e) essentially required the ALJ to recontact Dr. Waller is without merit. That subsection states that a physician will be recontacted if the documents containing the physician's opinions are inadequate for a disability determination to be made. Given the other medical evidence in this case, the ALJ had adequate evidence before him to make a complete determination as to Plaintiff's disability.
Finally, Plaintiff contends that it is not necessary for the testing to meet the numeric parameters set forth in Listing 4.02. Rather, Plaintiff contends that he may meet the listing by showing only that he has a documented cardiac enlargement which results in an "inability to carry on any physical activity. . . ." Listing 4.02A. Assuming, arguendo, that Plaintiff is correct as to the showing required to meet Listing 4.02A, the ALJ's decision is amply supported by substantial evidence that Plaintiff did, in fact, have the ability to carry on at least some physical activities. The record indicates that Plaintiff played the piano, attended Bible courses, choir practice and church services. (Tr. 57, 59, 61, 63). Furthermore, Dr. Gupta opined that Plaintiff could walk and perform "desk activit[ies], Tr. 203, Dr. Balasandrian found that Plaintiff was capable of working at a low stress job, Tr. 337, and Dr. Waller found that Plaintiff could perform part-time sedentary work. Tr. 319. Thus, the ALJ had sufficient grounds to find that Plaintiff did not meet all of the requirements for Listing 4.02. Cf. Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir. 1999) ("To meet or equal a listed impairment, the claimant must satisfy all of the criteria of the listed impairment") (emphasis added).
C. Weight to Be Afforded Treating Physicians
Plaintiff contends that the ALJ failed to sufficiently articulate why he did not afford controlling weight to the opinions of the treating physicians, Drs. Waller and Balasandrian.
Generally, "more weight is . . . given to the opinion of a treating physician because of his greater familiarity with the claimant's conditions and circumstances." Clifford, 227 F.3d at 870. However, "a treating physician's opinion is entitled to controlling weight only if it is not inconsistent with other substantial evidence in the record." Johansen, 314 F.3d at 287. As a practical matter, this means that "[w]hen treating and consulting physicians present conflicting evidence, the ALJ may decide whom to believe, so long as substantial evidence supports that decision." Dixon, 270 F.3d at 1178.
Plaintiff concedes that Drs. Waller and Balasandrian's opinions regarding his ability to work are inconsistent with those of Dr. Gupte and the "State Agency physicians." Opening Brief, p. 12 (citing Tr. 24). The main thrust of Plaintiff's argument, however, is his contention that the ALJ's opinion "does not give any reason or reasons why he chose one set of opinions over another. . . ." Id.
The crux of the ALJ's findings on this issue are as follows:
Dr. Waller's opinion and Dr. Balasandrian's opinion are not entitled to controlling weight even though they are treating medical sources because there is other substantial evidence in the records that is inconsistent with their opinions (Social Security Ruling 96-2p). For example, Dr. Gupte opined that the claimant could perform sedentary exertion and Dr. Gupte did not limit the claimant to part-time work. The findings of the State Agency physicians constitute medical expert opinion at the hearing level, and they opined that the claimant remained capable of performing some work in spite of his impairments.
Tr. 24.
An ALJ is required to "articulate, at some minimal level, his analysis of the record so that the reviewing court can follow his reasoning." Johansen, 314 F.3d at 287. See also Clifford, 227 F.3d at 870 ("We have repeatedly stated, however, that an ALJ must `minimally articulate his reasons for crediting or rejecting evidence of disability'") (quoting Scivally v. Sullivan, 966 F.2d 1070, 1076 (7th Cir. 1992)); 20 C.F.R. § 404.1527(d)(2) ("We will always give good reasons . . . for the weight we give your treating source's opinion"). In fact, even if the opinion of a treating physician is not entitled to controlling weight, "such opinion is still entitled to deference and must be weighed using the factors set out in the regulations [ 20 C.F.R. § 404.1527(d)]." McGraw v. Apfel, 87 F. Supp.2d 845, 853 (N.D.Ind. 1999).
Those factors include the length of the treatment relationship, the nature and extent of the treatment relationship, the evidence supporting the treating physician's opinion, the consistency of the treating physician's opinion, and whether the treating physician is a specialist in the medical fields in question. See 20 C.F.R. § 404.1527(d)(2)(i)-(d)(5).
The Commissioner discusses some of those factors on page ten (10) of her brief. However, the ALJ did not discuss any of the factors contained in 20 C.F.R. § 404.1527(d), meaning that the Court is unable to determine whether the ALJ's rejection of the treating physicians' opinions is supported by substantial evidence. As the ALJ has failed to meet his duty to articulate the reasons underpinning his rejection of the opinions of the treating physicians, remand for additional findings is necessary. See McGraw at 87 F. Supp.2d 855-56.
Plaintiff also contends that, in the course of rejecting the opinions of the treating physicians, the ALJ failed to consider the possibility that his condition had worsened since Dr. Gupte and the State Agency physicians rendered their opinions. Opening Brief, p. 13. The Commissioner argues that there is no evidence to support a finding that Plaintiff's condition had worsened. Memorandum in Support of Commissioner's Decision, p. 11. As this case is being remanded for, inter alia, the ALJ to make further findings regarding the weight to be afforded the treating physicians' opinions, the Court need not resolve that dispute here. On remand, the ALJ should, in the course of addressing the weight to be given to each physician's opinion, make findings as to whether Plaintiff's condition had worsened since Dr. Gupte and the State Agency physicians rendered their opinions.
Lest this opinion be misconstrued, the Court is not stating that, on remand, the ALJ may not again reject the opinions of the treating physicians; rather, the Court merely finds that the ALJ must sufficiently articulate his reasons for rejecting those opinions.
V. CONCLUSION
For the foregoing reasons, the decision of the ALJ is not supported by substantial evidence and must be REMANDED to the Commissioner for further findings consistent with this order. SO ORDERED.