Opinion
Civil Action No. 03-4836.
May 10, 2004
MEMORANDUM
Presently before the Court are Plaintiff Michael Morris' Motion for Summary Judgment, or, in the alternative, Motion for Remand regarding plaintiff's application for disability insurance benefits ("DIB"); Defendant's Brief in Opposition to Plaintiff's Motion and in Support of Defendant's Motion for Summary Judgment; and Plaintiff's Reply Brief. On March 3, 2004, a United States Magistrate Judge filed a Report ("Rep. and Rec.") recommending that this Court grant Defendant's motion for summary judgment and deny Plaintiff's motion for summary judgment. After careful and independent consideration of the matter, and for the following reasons, the court will not adopt the Report and Recommendation and will remand the case to the Commissioner of the Social Security Administration (the "Commissioner") for further proceedings consistent with this opinion.
I. Factual and Procedural Background
I will give a short recitation of the facts that are more fully laid out in the Magistrate's Report and Recommendation. On December 10, 2001. Plaintiff filed an application for SSI, alleging disability due to a heart attack as of October 12, 2000. After his application was denied, he filed a timely request for hearing, which was held before an ALJ. At the hearing held on February 6, 2003, plaintiff, his wife and a vocational expert testified. The ALJ issued her decision on February 27, 2003 denying benefits. The Commissioner's decision became final upon the Appeals Council's refusal to review. Plaintiff thereafter commenced this action.
Born February 11, 1955, plaintiff was almost 48 at the time of the ALJ's decision. After completing the eleventh grade, he joined the Marine Corps. Upon his return from service, he also completed four courses at community college, but was unable to finish due to family responsibilities. He worked as a truck driver for Philadelphia Newspapers from 1985 to 1988 and as a registered letter carrier for the United States Postal Service from 1988 to 2001.
On October 12, 2000 after experiencing severe chest pain, Plaintiff went to the University of Pennsylvania Medical Center, where he was diagnosed with non-cardiogenic chest pain, with secondary diagnosis of hypercholesterolemia, and discharged the following day. Following 24 hours of chest pain and discomfort in the left arm, plaintiff was admitted to Northwestern Hospital on November 3, 2000 and later transferred to Temple University Hospital for cardiac catheterization. This showed a 60 percent mid left anterior descending artery stenosis, and complete occlusion of the mid portion of the right coronary artery. Four stents were inserted and he was diagnosed with acute inferior myocardial infarction (heart attack) status post PTCA and stent to the right coronary artery. Additional blockages were found in December 2000 and additional stenting was performed.
He received follow-up treatments from Dr. McDonald. On January 3, 2001, Dr. McDonald noted no further anginal discomfort or pain in plaintiff, but some mild shortness of breath. On February 20, 2001, plaintiff's primary care physician, Dr. Donna Loughlin, upon review of his medical records indicated he was permanently disabled due to his coronary artery disease with secondary hyperlipidemia on a form for the Department of Public Welfare. He was seen by Dr. Mosen Alavi, a state agency physician, on April 26, 2001. Dr. Alavi gave plaintiff a fair prognosis, but indicated he had to stop smoking, lose weight and be more physically active. He believed there to be a high probability of inter-stent stenosis in the future in regard to his coronary artery stents. In the accompanying "Medical Source Statement of Claimant's Ability to Perform Work-Related Physical Activities," Dr. Alavi assessed Mr. Morris as able to lift or carry 20 pounds frequently and occasionally 25 pounds; stand and walk for 1 to 2 hours; and occasionally bend, kneel, stoop, crouch, balance, or climb.
On May 10, 2001, Plaintiff met with Dr. McDonald again. He commented that plaintiff's cardiac status was stable with a regular heart rate and rhythm and no peripheral edema. On May 17, 2001, upon reviewing his medical records, state agency physician Sharon Wander, M.D. completed a Physical Residual Functional Capacity Assessment remarking his activities were not severely limited and that his alleged symptoms are only partially credible. On June 28, 2001, plaintiff met with Dr. Loughlin who commented that plaintiff was not watching his diet, still smoking, and not exercising. On February 4, 2002, Dr. McDonald noted one episode of chest discomfort since May 10, 2001, his last appointment. In August 2002, Dr. McDonald commented the Plaintiff had a stable coronary disease and need not make any changes in his medical regimen.
In June 2002, after twisting his left knee, an MRI revealed joint effusion and a torn meniscus. After checkup on July 29, 2002, Dr. Loughlin made no notes regarding the injury, but reported Plaintiff felt well, lost nine pounds and was working out in his pool.
At the hearing, Plaintiff testified that he lives in a three story house, drives his wife to work and on errands and his mother-in-law to the doctor, goes fishing, helps with grocery shopping, cleans, and occasionally goes to dinner with his wife. When driving long distances he uses the cruise control because his legs get tired, he cannot do steady overhead work, experiences shortness of breath when walking too much, still smokes, and does not watch his diet. Plaintiff's wife testified the plaintiff is slower and forgets things, and indicated that the doctors will not operate on his knee because of his heart. The vocational expert, Bruce Martin, testified that he had transferrable skills from his past work and could do sedentary work as a routing clerk or information clerk and the light work positions of a mail clerk and records clerk. In response to Mr. Martin's testimony, plaintiff reiterated his doctor's instructions to do no work and indicated he passes out in the afternoon due to his medication. Although Mr. Martin stated the recommended jobs existed in significant numbers in the regional and national economies, he indicated that if a person fell asleep every afternoon or had to nap for half an hour, his occupational base would be eroded.
II. Standard of Review
A district court judge may refer an appeal of a decision of the Commissioner to a Magistrate Judge. See 28 U.S.C. § 636(b)(1). Within ten days after being served a copy of the Magistrate Judge's report and recommendation, a party may file timely and specific objections thereto. See 28 U.S.C. § 636(b)(1)(c). The district court judge will then make a de novo determination of those portions of the report and recommendation to which objection is made. See id. The judge may accept, reject, modify, in whole or in part, the findings or recommendations made by the magistrate, receive further evidence, or recommit the matter to the magistrate with instructions. See id.
There is limited judicial review of administrative decisions. In reviewing the Commissioner's decision, the court is bound by the ALJ's findings of fact if they are supported by substantial evidence in the record. See 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate." Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). The ALJ must also give "some indication of the evidence which was rejected." Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981) (remanding case where ALJ failed to explain rejection of probative testimony).
III. Discussion
To receive disability insurance benefits, a claimant must show that he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 42 U.S.C. §§ 423(d)(1)(A). There is a five-step sequential evaluation conducted when evaluating disability claims. 20 C.F.R. § 404.1520. In her February 6, 2003 decision, the ALJ evaluated Morris' appeal utilizing the 5-step analysis and found that: (1) "[t]he claimant has not engaged in substantial gainful activity;" (2) "[t]he claimant's status post heart attack is a severe impairment, based upon the requirements in the Regulations," but that (3) "[t]his medically determinable impairment does not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulations No. 4;" and his allegations regarding his limitations were not totally credible. (ALJ Report at 7.) In regard to his ability for future employment, the ALJ also found that (4) the "claimant is unable to perform any of his past relevant work," but (5) "has the residual functional capacity for sedentary work without repeated overhead use of arms." Id. The ALJ reasoned that "[a]lthough the claimant's exertional limitations do not allow him to perform the full range of sedentary work, using Medical Vocational Rule 201.22 as a framework for decision-making, there are a significant number of jobs in the national economy that he could perform." Id. In her decision, the ALJ only briefly mentioned that the claimant lost 9 pounds and was working out in his pool and while she noted his meniscus tear, she relates that there was no mention of his knee bothering him. Id. at 4. The plaintiff was not represented by counsel at the hearing.
In his motion for summary judgment, Plaintiff claimed (1) the ALJ did not consider whether Plaintiff's obesity, in combination with his other impairments, met or equaled a listing and (2) that the findings concluding Plaintiff has the residual functional capacity to perform sedentary work was not supported by substantial evidence. In his Report and Recommendation the Magistrate Judge found that substantial evidence existed to support the ALJ's findings. Pursuant to 28 U.S.C. § 636(b)(1)(C), the Plaintiff timely filed six objections to the Magistrate Judge's Report and Recommendation. I discuss each of these objections below.
A. Impact of Plaintiff's Obesity
Plaintiff's first objection is that "the Magistrate Judge committed reversible error of law in ruling that the . . . ALJ did not err by failing to assess the impact of Plaintiff's obesity as mandated by Social Security Ruling (SSR) 02-01p." (Pl's. Obj. at 1.) In support, Plaintiff argues that ruling mandates discussion of the impact of obesity in steps 2, 3, and 5 of the Sequential Evaluation Process, particularly in musculoskeletal, respiratory and cardiovascular impairments.Id. See also 2002 SSR Lexis 1, *7. The ALJ concluded the claimant's status post heart attack is a severe impairment, but did not explicitly consider any of Plaintiff's other impairments in making her determination as to whether Plaintiff met or equaled the requirements of a listed impairment. The Magistrate Judge found it significant that none of the doctors made any issue of plaintiff's weight and did not find any evidence in the record that his combined impairments satisfied either prong of listing 4.04c (coronary artery disease). The Magistrate Judge also pointed to Plaintiff's improved conditions. While at first glance, Plaintiff may seem not to meet listing standards, I give weight to the lack of an explicit explanation by the ALJ, which is noted by the Magistrate judge. As the ALJ did not provide an explanation in her report as to whether Plaintiff's obesity was considered, the Magistrate Judge could not make a factual finding that the plaintiff's obesity did not have an impact.
As Plaintiff argues, the ALJ did not make an inquiry into the impact of claimant's weight even though his body mass index, which fell into the lower end of the obesity scale, was in the record. Plaintiff contends the ALJ should have considered whether obesity amounted to a severe impairment at step 2 and also how obesity affects the Plaintiff at steps 3 and 5 of the analytical process. (Pl. obj. at 2). I look to Social Security Ruling ("SSR") 02-01p, "Titles II and XVI: Evaluation of Obesity," September 12, 2002, for guidance on this issue. The ruling states obesity is considered in the determinations of medically determinable impairment, severity of impairment, whether that impairments meets or equals a listing, and whether the impairment prevents the ability to do past relevant work or other work. 2002 SSR LEXIS 1, *7.
Considering the ALJ found the plaintiff has a severe impairment and is limited to less than the full range of sedentary work, the ALJ should have inquired of a medical expert, whether due to his obesity he meets or equals one of the impairments as there is evidence in the record of Morris's obesity. In addition to his level I obesity classification and coronary artery disease, Plaintiff claimed a medical meniscus tear and degenerative changes in his left knee and degenerative disc disease of the lumbar spine. Nowhere in the record is there a discussion or analysis or even a mere mention of the effect of a combination of these impairments.
The Magistrate Judge observed that there was no medical opinion in the treating physicians' notes or state agency reports; however, silence on the issue by the physician is not evidence of a medical conclusion. See Mason v. Shalala, 994 F.2d 1058, 1068 n. 15 (3d Cir. 1993). The ALJ did not conduct an analysis of the impact of plaintiff's obesity, the effect of the combination of plaintiff's other impairments, or an explanation as to why this analysis was not done. Even though alone each of these does not equal a listing, a determination that does not consider how the combination affects the Plaintiff is not supported by substantial evidence. Therefore, upon remand, the ALJ should conduct a thorough analysis taking into consideration Plaintiff's obesity and other impairments. Caballero v. Barnhart, 2003 WL 22594256 (issued 9-29-03).
B. Whether the ALJ failed to develop the record
An ALJ has a duty to develop a full and fair record. Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995). Morris argues the ALJ failed in her obligation to develop the record. (Pl. obj. at 7). The Magistrate concluded the claimant bears the initial burden of proving the existence of a condition and the ALJ need not create a record "from scratch or even from a one time MRI result indicating some knee problem." (Rep. and Rec. at 26.) We must also consider the ALJ had notice by observing the plaintiff and reading the medical records that plaintiff had several ailments. I find it significant that the ALJ noted plaintiff lost an insignificant amount of weight and was working out in his pool. She also heard the wife's testimony regarding the knee injury in addition to the MRI. These notations indicate the ALJ was aware of Plaintiff's weight and knee injury, but did not explain why there was no further inquiry.
When a pro se claimant appears before the ALJ, the ALJ has a duty to help the claimant develop the administrative record.Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003). Since the meniscus tear was recent compared to the other ailments, plaintiff may not have known its significance, particularly given his belief that the heart problem alone should have been enough. The record also shows Plaintiff worked out in a pool, which may indicate an inability to engage in activities that involve more pressure on the knee. The record reveals Plaintiff was doing well on his current regimen, but the ALJ did not inquire whether his current inactivity contributed to his progress. Despite the fact that the ALJ inquired generally whether there was anything else, knowing the claimant was pro se, the ALJ should have inquired further to reconcile any doubts she had about the claimant's injury. Moreover, the ALJ's report did not contain evidence of whether or not the combination of impairments plaguing the Plaintiff were considered in determining whether he met or equaled a listing. "We need from the ALJ not only an expression of the evidence she considered which supports the result, but also some indication of the evidence which was rejected. Cotter V. Harris, 642 F.2d 700, 705 (3d Cir. 1981). I will therefore vacate and remand the case to the ALJ for further development of the record and explanation of his findings regarding whether the effects of Plaintiff's other impairments either individually or combined, are or are not equivalent in severity to one of the listed impairments.
During the hearing, plaintiff testified: "I don't feel that anywhere in this Government where Social Security is concerned that any citizen of this country should have to have an attorney represent them for benefits that they're entitled to." (Tr. 22-23.)
C. Whether the ALJ's finding that Plaintiff's only severe impairment relates to his heart condition is supported by substantial evidence.
Plaintiff further objects that the "Magistrate Judge's adoption of the ALJ finding that Plaintiff's only severe impairment relates to his heart condition is not supported by substantial evidence and represents a reversible error of law." (Pl. obj. at 9.) The Magistrate Judge reasoned that there was no evidence in the record that Plaintiff had a "degenerative disk disease." (Rep. and Rec. at 15.) He further reasoned that Plaintiff's failure to mention any pain associated with his knee injury at the hearing supported the ALJ's refusal to find that to be a "severe" impairment. Lastly, the Magistrate Judge found that because Plaintiff's weight fell in the lower end level I of the obesity scale and "no doctor ever opined that plaintiff's `obesity' was the cause of any limitations or resulted in any complications with his heart condition," there was substantial evidence for the ALJ to not classify it to be a severe impairment. (Rep. and Rec. at 16-17.)
A severe impairment is one "which significantly limits your physical or mental ability to do basic work activities." 20 C.F.R. Section 404.1520. Whereas we found the record was not adequately developed regarding plaintiff's obesity and knee injury, a developed record may, if it does not now, show such severity. Because the ALJ did not fully develop the record on these other impairments, we will remand the case to the Commissioner for reconsideration of Step Two.
D. The Magistrate Judge's Adoption of the ALJ's Findings that Plaintiff has the Residual Functional Capacity to Perform a Significant Range of Sedentary Work.
In his objections, plaintiff argues the ALJ's finding that Plaintiff has the residual functional capacity to perform a significant range of sedentary work is not supported by substantial evidence. He argues that the ALJ should have asked the vocational expert whether a claimant limited to walking and standing as little as one hour could perform the routing and information clerk jobs. Plaintiff contends the ALJ relied only on Dr. Alavi's Medical Assessment which limited Plaintiff to walking or standing to no more than 2 hours, despite the Magistrate Judge's finding that the ALJ also relied on the state agency consultative physicians conclusions as well as the testimony of the Plaintiff and the Plaintiff's wife. Despite the lack of explanation regarding Plaintiff's obesity, the ALJ's report specifically states, "[c]onsideration has also been given the conclusion of the state agency Disability Determination Service." (ALJ Report at 4.) If Plaintiff is not found to be presumptively disabled with the introduction of further evidence, this would not serve as a reason to reverse or remand
E. Magistrate's Findings and Recommendations
Plaintiff objects to the Magistrate Judge's adoption of the Commissioner's finding that Plaintiff is not disabled as well as to the Magistrate Judge's recommendation that Plaintiff's Motion for Summary Judgment be denied and Defendant's Motion for Summary Judgment be granted. I conclude that the finding that Claimant is not disabled is not supported by substantial record evidence as recited above. As previously stated, the record needs to be more fully developed and consideration needs to be given to Plaintiff's other impairments before a determination of plaintiff's disability is made. Therefore, the case will be remanded to the Commissioner for a report consistent with the findings of this opinion.
IV. Conclusion
The ALJ failed to develop the full and fair record as required by law. As such, this case will be remanded to the Secretary for further proceedings as directed by the Third Circuit in. "The decision to direct the district court to award benefits should be made only when the administrative record of the case has been fully developed and when substantial evidence on the record as a whole indicate that the Claimant is disabled and entitled to benefits." 786 F.2d 178. Most importantly, the ALJ failed to provide a sufficient explanation as to whether plaintiff's obesity was taken into consideration. In developing the record, the Commissioner should consider plaintiff's obesity pursuant to SSR 02-01p, and should determine the severity of plaintiff's other impairments. Even if those individual impairments are not found to be severe, the Commissioner should either consider the combination's effect on plaintiff's listing and residual functional capacity or provide explanations as to why they are omitted.
An appropriate order follows.
ORDER
AND NOW, this ____ day of May, 2005, upon consideration of the parties' cross motions for summary judgment, and after careful review of the Report and Recommendation of the United States Magistrate Judge, IT IS HEREBY ORDERED that:1. Plaintiff's objection as to an insufficiently developed record are SUSTAINED.
2. The motion of Plaintiff Michael Morris for summary judgment is DENIED. His motion to remand is GRANTED.
3. The motion of Defendant Jo Anne B. Barnhart, Commissioner of Social Security, for summary judgment is DENIED.
4. The case is REMANDED to the Commissioner for further proceedings consistent with this memorandum.