Summary
finding that the ALJ erred in failing to consider whether plaintiff, who "was four months away from his fiftieth birthday," was "closely approaching advanced age for purposes of a determination of disability"
Summary of this case from Brown v. ColvinOpinion
NO. CIV-10-0912-HE.
August 18, 2011
ORDER
Plaintiff Mark Noteware instituted this action seeking judicial review of the final decision of the Commissioner of the Social Security Administration denying his applications for disability insurance and supplemental security income benefits. Consistent with 28 U.S.C. § 636(b)(1)(B), the case was referred to Magistrate Judge Bana Roberts, who recommends that the Commissioner's decision be reversed and the matter remanded for further proceedings.
The magistrate judge found the decision of the Administrative Law Judge ("ALJ") decision was flawed in that he failed to address certain objective medical evidence of record relating to whether plaintiff had an impairment or combination of impairments that met or equaled Listing 1.04(A). She also concluded the ALJ failed to evaluate plaintiff's borderline age in conjunction with his claim for supplemental security income payments. Finally, the magistrate judge recommended that the court not order the Commissioner to issue a decision that plaintiff was disabled for supplemental security income purposes as of his fiftieth birthdays, as plaintiff requested.
The parties, having failed to object to the Report and Recommendation, waived their right to appellate review of the factual and legal issues it addressed. United States v. One Parcel of Real Property, 73 F.3d 1057, 1059-60 (10th Cir. 1996). See 28 U.S.C. § 636(b)(1)(C). Accordingly, the court adopts Magistrate Judge Robert's Report and Recommendation, REVERSES the final decision of the Commissioner and REMANDS the case for further proceedings consistent with the Report and Recommendation, a copy of which is attached to this order.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
Mark Noteware ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the Defendant Commissioner's final decision denying Plaintiff's applications for disability insurance benefits and supplemental security income payments under the Social Security Act. This matter has been referred to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Upon review of the pleadings, the record ("Tr.") and the parties' briefs, the undersigned recommends that the Commissioner's decision be reversed and matter remanded for further proceedings.Administrative Proceedings
Plaintiff initiated these proceedings by protectively filing his applications seeking disability insurance benefits and supplemental security income payments in August, 2007 [Tr. 119 — 122, 123 — 125, and 146]. He alleged that the condition of his lower back, legs, and knees results in constant pain, in bending and lifting problems, and causes his legs to "just go out from under" him when walking. [Tr. 151]. He maintained that he became disabled as of February 1, 2005 [Tr. 119, 123, and 151]. Plaintiff's claims were denied and, at his request [Tr. 85], an Administrative Law Judge ("ALJ") conducted a June, 2009 hearing where Plaintiff, who was represented by counsel, and a vocational expert testified [Tr. 6 — 48]. In his October, 2009 decision, the ALJ found that while Plaintiff was unable to perform his past relevant work, he retained the capacity to perform other available work and, accordingly, was not disabled within the meaning of the Social Security Act [Tr. 57 — 66]. The Appeals Council of the Social Security Administration declined Plaintiff's request for review [Tr. 1 — 4], and Plaintiff subsequently sought review of the Commissioner's final decision in this court.
Standard of Review
This court is limited in its review of the Commissioner's final decision to a determination of whether the ALJ's factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied. Lax v. Astrue , 489 F.3d 1080, 1084 (10th Cir. 2007) (citations and quotations omitted). Nonetheless, while this court can neither reweigh the evidence nor substitute its own judgment for that of the ALJ, the court's review is not superficial. "To find that the [Commissioner's] decision is supported by substantial evidence, there must be sufficient relevant evidence in the record that a reasonable person might deem adequate to support the ultimate conclusion." Bernal v.Bowen, 851 F.2d 297, 299 (10th Cir. 1988) (citation omitted). "A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it." Id. at 299.
Determination of Disability
The Social Security Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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). The Commissioner applies a five-step inquiry to determine whether a claimant is disabled. See 20 C.F.R. §§ 404.1520(b)-(f), 416.920(b)-(f); see also Williams v. Bowen, 844 F.2d 748, 750-752 (10th Cir. 1988) (describing five steps in detail). Under this sequential procedure, Plaintiff bears the initial burden of proving that he has one or more severe impairments. 20 C.F.R. §§ 404.1512, 416.912; Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). Then, if Plaintiff makes a prima facie showing that he can no longer engage in prior work activity, the burden of proof shifts to the Commissioner to show that Plaintiff retains the capacity to perform a different type of work and that such a specific type of job exists in the national economy. Turner, 754 F.2d at 328; Channel v. Heckler, 747 F.2d 577, 579 (10th Cir. 1984).
Plaintiff's Claims of Error
It is Plaintiff's first claim that "[t]he ALJ erred, as a matter of law, in failing to evaluate whether [Plaintiff] fell within a borderline age situation, and should have been considered `closely approaching advanced age,' for purposes of applying the Medical-Vocational Guidelines." [Doc. No. 20, p. 13]. As his second appellate claim, Plaintiff maintains that "[t]he ALJ's findings at step three of the sequential evaluation were legally flawed and not supported by substantial evidence." Id. at 17. Plaintiff's claims are addressed in the order of the sequential review process.
Analysis
Step Three Findings
In determining that Plaintiff does not have an impairment or combination of impairments that meets or equals one of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, the ALJ stated that he had considered §§ 1.02 and 1.04 of Appendix 1 and concluded as follows:
Plaintiff does not assert error in connection with the ALJ's § 1.02 findings and, thus, the ALJ's description of that listing is not included in this Report.
Section 1.04 of Appendix 1 allows for a presumption of disability when there is evidence of disorders of the spine resulting in compromise of a nerve root of the spinal cord with (A) evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine); or (B) spinal arachnoiditis, confirmed by an operative note or pathology report or tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthsia, resulting in the need for changes in position or posture more than once every hour; or (C) lumbar spinal stenosis resulting in pseudoclaudation, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness resulting in an inability to ambulate effectively.
In progress notes from Veterans Affairs Medical Center (VAMC) dated September 18, 2006, the claimant was documented to have decreased range of motion in all planes of the lumbar spine with gait disturbance. Also, there was decreased sensation to the bilateral lower extremities. However, cranial nerves II through VII were intact. Straight leg raising was negative. Likewise, crossed straight leg raising was negative bilaterally. Strength was 5/5 in the upper extremities. Radiological findings showed multilevel degenerative disc disease with only minimal neural foramen narrowing bilaterally at L4-5 and L5-S1.
When seen on November 16, 2007, the claimant was documented to have normal range of motion of the lower extremities. Additionally, there were no joint crepitations or pain on range of motion (Exhibit 6F, pages 6 and 7). Based on the objective medical evidence, as discussed further in the body of this decision, the claimant does not have an impairment or combination of impairments that meet or medically equals in severity the medical criteria of sections 1.02 or 1.04 of Appendix 1.
[Tr. 61].
Both Plaintiff and the Commissioner agree that
[i]n order to meet Listing 1.04(A), Plaintiff must show a spine disorder resulting in compromise of a nerve root . . . or the spinal cord with . . . [e]vidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine).
[Doc. No. 23, p. 8]. Thus, both Plaintiff and the Commissioner agree that the ALJ considered the appropriate components of § 1.04 at step three. Nevertheless, Plaintiff argues that the ALJ erred by failing to address certain objective medical evidence indicating that the components of the listing may have been satisfied: "evidence of neuro-anatomic pain distribution in the form of lower back pain radiating to one or both legs"; "evidence of lower extremity muscle weakness [including findings] of give-way leg weakness and . . . findings of inabilities to walk normally and/or on the heels and toes"; and, "positive straight leg raise testing." [Doc. No. 20, p. 22]. Plaintiff further maintains that "while the ALJ appears to acknowledge that [Plaintiff] satisfied Listing 1.04(A)'s elements of decreased lumbar range of motion and sensory loss . . . there is ample additional evidence [of] these elements that the ALJ acknowledged elsewhere in his decision or, in most cases, did not discuss." Id. at 21.
See Doc. No. 20, p. 19.
Plaintiff's supporting record citations include Tr. 227, 251, 261, and 345 [Doc. No. 20, p. 22].
Plaintiff's record citations include Tr. 221, 242 — 243, 252, 289 — 290, 298, 399, 402, 440, and 469 [Doc. No. 20, p. 22].
The relevant record citations include Tr. 243, 252, and 402 [Doc. No. 20, p. 22].
As support, Plaintiff proffers record citations including Tr. 252, 270, 345, and 402 [Doc. No. 22, p. 21].
Moreover, it is Plaintiff's argument that "to the extent the ALJ believed that the evidence of `only minimal' neuroforaminal narrowing shown by [Plaintiff's] May 2005 MRI was not sufficient to satisfy Listing 1.04(A), [Plaintiff] would point out that Listing 1.04(A) does not specify any particular degree of impingement that must be present." Id. Plaintiff further points to the ALJ's failure to include in his discussion of the step three evidence that the physician who reviewed Plaintiff's MRI found that it "showed a significant L4-5 disk bulge, worse on the right, consistent with [Plaintiff's] symptoms of right radicular pain." Id. Finally, as to radiculopathy, Plaintiff observes that "the ALJ fails to mention the multiple references in the record to [Plaintiff] suffering from radiculopathy (nerve root disease)[.]" Id. at 22.
See Tr. 253.
The Tenth Circuit noted in Wall v. Astrue, 561 F.3d 1048, 1056, n. 9 (10th Cir. 2009), that "`[r]adiculopathy' refers to damage caused to a nerve root by an injury to the spinal cord." ( citing University of Wisconsin-Madison Neuroscience Resource Page,
Plaintiff's record citations include Tr. 222, 227, 253, 270, 446, 470, and 477 [Doc. No. 20, p. 22].
The undersigned has quoted extensively from Plaintiff's opening brief because it is significant that through his responsive brief the Commissioner does not challenge Plaintiff's claim that the ALJ failed to address certain, specific objective medical evidence of record, evidence which Plaintiff contends could have satisfied the requisite components of § 1.04(A). Neither does the Commissioner suggest that Plaintiff's citations to such evidence are inaccurate. Likewise, the Commissioner makes no attempt to distinguish the legal authority submitted by Plaintiff in support of his theory that it was legal error for the ALJ to fail to address this potentially conclusive evidence. In this regard, Plaintiff places particular reliance on a recent unpublished decision by the Tenth Circuit Court of Appeals in the case of Groberg v. Astrue, 415 Fed. Appx. 65 (10th Cir. 2011).
In Groberg, the ALJ determined that while the claimant experienced chronic back pain, § 1.04 was not met because there was no evidence of nerve root compression, spinal arachnoiditis, or pseudoclaudication; the claimant maintained that the ALJ erred by failing to discuss the medical evidence that caused him to reach this conclusion. Id. at 72. The court concluded that an ALJ is not required to discuss the specific evidence relevant to his listing determination where " there is in fact no evidence" but that "where as here there is evidence that may meet the listing requirements, the ALJ is required to provide a proper analysis." Id. The court concluded that "[o]therwise, it is impossible to know how the ALJ weighed the evidence." Id. The court then discussed the pertinent evidence — evidence that is of a similar nature to that of record and identified by Plaintiff in the instant appeal:
Turning to that evidence, various treating and examining physicians and health care personnel included radiculopathy (disease of the nerve roots) or herniated discs in Groberg's diagnosis. . . . He also provided at least some indication that he met other requirements of the listing, including neuro-anatomic distribution of pain, . . . limited range of motion in his spine, . . . motor loss, . . . sensory loss, . . . and positive straight-leg raising tests[.]Id.
Remand for additional proceedings is required in this case in order for the adjudicator to fully address all of the evidence relating to whether § 1.04(A) has been satisfied. The adjudicator — who has the option of seeking assistance from a medical expert — can then evaluate and weigh all such evidence and reach a decision which would allow a reviewing court to understand both how — by identifying the specific evidence that was relied upon — and why — by explaining what that evidence establishes from a medical standpoint — the conclusion was reached.
Borderline Age
Pursuant to regulation, the Social Security Administration utilizes various age categories — younger (under age 50); closely approaching advanced age (age 50-54); advanced age (age 55 or older) — when making a finding about a claimant's ability to work. See 20 C.F.R. §§ 404.1563(b); 416.963(b). At the time of the ALJ's decision, Plaintiff was forty-nine years old — a younger individual — but was four months away from his fiftieth birthday and, thus, four months from closely approaching advanced age for purposes of a determination of disability. The difference between the two categories is significant from a vocational standpoint in this case because while "we generally do not consider that [a younger person's] age will seriously affect [his] ability to adjust to other work," id., the age of a claimant who is categorized as closely approaching advanced age "along with a severe impairment(s) and limited work experience may seriously affect [his] ability to adjust to other work." 20 C.F.R. §§ 404.1563(c), 416.963(c).
In this case, the ALJ found that Plaintiff was a younger individual [Tr. 64]; that he had a high school education, id.; that he was able to communicate in English, id.; that whether or not he had transferable skills was not material under the Medical-Vocational Guidelines ("Grids") [Tr. 65]; and, that he could perform less than a full range of sedentary work [Tr. 61]. The ALJ further found that had Plaintiff been able to perform a full range of sedentary work, "a finding of `not-disabled' would be directed by Medical-Vocational Rule 201.28 and Rule 201.21." [Tr. 65]. Because the occupational base was eroded by Plaintiff's inability to perform a full range of sedentary work, the ALJ relied on the testimony of a vocational expert in concluding that there jobs in the national economy that Plaintiff could perform.
Based on these same findings and qualifications, however, had Plaintiff been considered a person closely approaching advanced age without skills transferrable to sedentary work rather than a similarly situated younger individual, the grids would direct a finding of "disabled." See Grid Rule 201.14. Consequently, Plaintiff maintains that the ALJ erred by not considering whether Plaintiff — who, again, was four months away from his fiftieth birthday and, thus, four months from closely approaching advanced age for purposes of a determination of disability on his claim for supplemental security income payments — was entitled to a finding of "disabled" based on his borderline age under the following regulations:
We will use each of the age categories that applies to you during the period for which we must determine if you are disabled. We will not apply the age categories mechanically in a borderline situation. If you are within a few months of reaching an older age category, and using the older age category would result in a determination or decision that you are disabled, we will consider whether to use the older age category after evaluating the overall impact of all the factors of your case.20 C.F.R. §§ 404.1563(b), 416.963(b). Under the law of the Tenth Circuit, while the ALJ has the discretion to find that an older age category should not be used, he must evaluate the borderline age situation — by determining which of the categories on either side of the borderline best describes Plaintiff — and make a reviewable finding. Daniels v. Apfel, 154 F.3d 1129, 1133, n. 5 (10th Cir. 1998).
The Commissioner does not contest the accuracy of any of the foregoing but simply maintains that Daniels is distinguishable because the ALJ did not mechanically apply the grids but rather relied on the testimony of a vocational expert in making his "not disabled" finding. [Doc. No. 23, p. 5 — 6]. In support of this theory, the Commissioner argues that the vocational expert "was aware of Plaintiff's age" and other vocational factors. Id. at 6. Under the law of the Tenth Circuit, however, "[a]n expert cannot support a finding of nondisability by contravening the empirical determinations and policy directives formally incorporated by the Secretary into the grids." Baker v. Chater, No. 95-7001, 1995 WL 656987, at * 2 (10th Cir. Nov. 8, 1995) (unpublished op.). See also, Lee v. Astrue,, No. 09-CV-465-CVE-PJC, 2010 WL 2471680, at *8 (N.D. Okla. Jun. 16, 2010). On remand, the adjudicator must evaluate the borderline age situation — by determining which of the categories on either side of the borderline best described Plaintiff at the time the borderline evaluation should have been made by the first adjudicator — and make findings susceptible to review.
As an additional matter and one based on the fact that Plaintiff's fiftieth birthday occurred four months after the ALJ issued his decision in this matter, Plaintiff has requested that "the remand Order should direct that the Commissioner issue a decision no less favorable to [Plaintiff] than finding him disabled for SSI purposes as of his fiftieth birthday pursuant to 20 C.F.R., Part 404, Subpart P, Appendix 2, § 201.06." [Doc. 20, p. 16]. Not only would such an order require this court to step outside its role of reviewing alleged error in the final decision of the Commissioner but the prospective, ongoing determination of the supplemental security income claim brought by Plaintiff stands to be informed by more-current evidence which could include medical improvement or a change in monetary circumstances. It is recommended that the court reject Plaintiff's request.
RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
For the foregoing reasons, the undersigned recommends that the Commissioner's decision be reversed and the matter remanded for further proceedings.
The parties are advised of their right to object to this Report and Recommendation by August 8, 2011, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The parties are further advised that failure to make timely objection to this Report and Recommendation waives their right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the Magistrate Judge in this matter.
http://www.neuroanatomy.wisc.edu/SClinic/Radiculo/Radiculopathy.htm.)Plaintiff's record citations include Tr. 222, 227, 253, 270, 446, 470, and 477 [Doc. No. 20, p. 22].