Opinion
CIVIL ACTION NO. 02-1289
September 26, 2003
REPORT AND RECOMMENDATION
Craig Perry ("Plaintiff) seeks judicial review, pursuant to 42 U.S.C. § 405(g) and 1383(c), of the final decision of the Commissioner of the Social Security Administration ("Commissioner"), denying his claim for disability insurance benefits ("DIB") under Title II of the Social Security Act ("Act"). The parties have filed cross-motions for summary judgment. For the reasons set forth below, it is recommended that the Commissioner's Motion for Summary Judgment be DENIED, that Plaintiff's Motion for Summary Judgment be GRANTED in part and DENIED in part and that the matter be REMANDED to the Commissioner for further proceedings consistent with this recommendation.
I. PROCEDURAL HISTORY
I have reviewed and considered the following documents in analyzing this case: Plaintiff's Complaint and Motion for Summary Judgment, Defendant's Motion for Summary Judgment, and the Court transcript ("R."), including all exhibits thereto.
On September 14, 2000, Plaintiff applied for DIB. (R. 13, 192). He claimed to have been disabled by back pain since January 15, 1999, when he slipped and fell in his employer's parking lot while at work. (R. 33, 44, 49). Benefits were denied initially on January 30, 2001. (R. 23-24). Thereafter, Plaintiff requested and was granted an administrative hearing. On September 20, 2001, represented by counsel, Plaintiff testified before James Garrett, an Administrative Law Judge ("ALJ"). (R. 190-208). A vocational expert ("VE"), Agnes Gallen, also testified. (R. 202-206).
On November 20, 2001, the ALJ, using the sequential evaluation process, concluded that, notwithstanding Plaintiff's impairments, he had the residual functional capacity to return to his former work and, thus, was not "disabled," as defined by the Act. (R. 18, Finding No. 7). The Appeals Council declined Plaintiff's request for review on February 22, 2002, thus, rendering the ALJ's unfavorable decision the final decision of the Commissioner. (R. 3-5). Plaintiff filed the within complaint seeking judicial review of the Commissioner's determination. This case was referred to the undersigned by the Honorable Cynthia M. Rufe, under the authority of 28 U.S.C. § 636(b)(1)(B), for preparation of a report and recommendation.
The Social Security Regulations provide the following five-step sequential evaluation for determining whether or not a claimant is disabled:
1. If claimant is working, doing substantial activity, a finding of not disabled is directed. Otherwise proceed to Step 2. See 20 C.F.R. § 404.1520(b).
2. If claimant is found not to have a severe impairment which significantly limits his or her physical or mental ability to do basic work activity, a finding of not disabled is directed. Otherwise proceed to Step 3. See 20 C.F.R. § 404.1520(c).
3. If claimant's impairment meets or equals criteria for a listed impairment or impairments in Appendix 1 of Subpart P of Part 404 of 20 C.F.R. a finding of disabled is directed. Otherwise proceed to Step 4. See 20 C.F.R. § 404.1520(d).
4. If claimant retains the residual functional capacity to perform past relevant work, a finding of not disabled is directed. Otherwise proceed to Step 5. See 20 C.F.R. § 404.1520(e).
5. The Commissioner will determine whether, given claimant's residual functional capacity, age, education and past work experience in conjunction with criteria listed in Appendix 2, he is or is not disabled. See 20 C.F.R. § 404.1520(f).
II. FACTUAL BACKGROUND
A. Personal HistoryPlaintiff, born on October 6, 1952 (R. 33), was a younger individual at the time of the ALJ's decision. He has a twelfth (12th) grade education, lives with his wife, and received disability pension payments in the amount of $27,805.56 in 1999 and $46,805.56 in 2000. (R. 14, 55, 194-95, 199).
A "younger person" is under the age of 50. See 20 C.F.R. § 404.1563(c). "The Commissioner does not consider that age will seriously affect a younger person's ability to adapt to a new work situation." Id.
B. Plaintiff's Statements and Testimony
Plaintiff testified that he last worked on January 15, 1999, the day he "took a fall in the parking lot." (R. 196). He attempted to go back to work "a couple of different times," but was unsuccessful. (R. 193, 198). Prior to taking disability retirement, Plaintiff had been employed twenty-eight (28) years with ATT; he served twenty years as a technician. (R. 193-94). From 1984 through 1990, Plaintiff worked as a communications technician. ( Id.). His duties included "running telephone jumpers on cranes and climbing ladders and placing plug ins and things like that. And then as technology changed, naturally the job became more, sitting . . ., at a consul and everything was computerized more or less." (R. 194). Plaintiff's most recent position at ATT, held from 1991 until 1999, was that of a "Switching Equipment Manager." (R. 58). In this position, Plaintiff lifted less then ten (10) pounds, sat for seven (7) hours and stood for one hour daily. (R. 59). Specifically, he handled "installation and trouble shooting of . . . special telephone circuits and . . . data circuits." (R. 195).
Plaintiff testified that he quit his job because of constant back pain. ( Id.). He said he "cannot walk for any extended period. [He] cannot stand, [he] cannot sit, [he] cannot drive, [and he cannot]. . . sleep." (R. 195). Plaintiff described pain "in [his] lower back; [his] left whole side, all the way down to [his] leg." ( Id.). Plaintiff stated that he could not return to his former employment, having three failed attempts to do so. (R. 201).
Plaintiff testified that he treats with Dr. Kozin monthly for his back pain. (R. 197). While medications cause Plaintiff to feel fatigued, he admitted that they "did help a little." (R. 70-71). Other alleged side effects to Plaintiff's medications include "nausea, trouble with [his] stomach and teeth [sic] decay." (R. 196).
Plaintiff stated that, in a typical day, he "just lays around the house. [He] can't do any household work at all with [his] back problems. Sometimes [he does not] leave the house for 3 or 4 days at a time. [He] may do an errand or go to [the] store for something, but [he] can't drive for any long periods." (R. 66). Furthermore, Plaintiff said he does not cook, do yard work or shop; he barely cleans the house, sometimes drives and "can walk a couple of minutes and maybe two blocks." (R. 67-68, 72-73). Plaintiff alleged difficulty dressing himself; he uses public transportation, and has insomnia. (R. 68, 72-73). Regarding sitting or standing, Plaintiff testified that after he sits or stands "twenty minutes to a half-hour," he needs to stretch or get up. (R. 198-201). Plaintiff testified that he cannot watch an entire half-hour television show, without "moving or squirming" and standing up. (R. 200). Plaintiff further complained of concentration deficits. (R. 200-01).
C. Medical History
William Kozin, M.D., has been Plaintiff's family physician since childhood. On August 1, 1994, Dr. Kozin's impression was that Plaintiff had a "[d]isc bulging at L2-3, L4-5 and L5-S1 with minimal herniated nuclear material suspected at the latter two levels." (R. 148). In an October 27, 1997 letter, Dr. Kozin stated that Plaintiff had been out of work and receiving non-steroidal agents and epidural steroid injections to control his back and radicular pain. (R. 147). Dr. Kozin's office notes well-document Plaintiff's chronic pain syndrome (R. 149, 181), spasms (R. 150, 152, 156, 158-159, 162-163, 165-166), inability to work or sleep (R. 149, 152, 155, 181), and inability to sit (R. 160). Dr. Kozin, on July 6, 1998 and May 10, 2000, advised Plaintiff's former employer, that Plaintiff was restricted to sedentary duty with the ability to stand and stretch as necessary. (R. 133, 137). Plaintiff was to do no bending, squatting, stooping, climbing and could only "work 1/2 tour of [his] scheduled work tour."
On August 13, 1998, Dr. Debra L. Braverman, M.D., interpreted a four level discography as indicating a rupture at L2-L3 and fissures at levels L3-L4, L4-L5 and L5-S1. She further noted Plaintiff's complaint of "concordant pain." (R. 94). Plaintiff was deemed a non-surgical candidate. ( Id.). His range of motion was "approximately 70 degrees, [he could] extend to approximately 5 degrees and . . . bend approximately 10 degrees." (R. 95). Furthermore, "extension and left lateral bend cause[d] the [radicular] symptomatology in his left buttock and his left leg. Straight leg raise [was] negative on the right, but positive on the left. He [had] posterior thigh pain with straight leg raise at 30 degrees on the left." (91, 95).
On September 17, 1998, Dr. Braverman, re-examined Plaintiff and noted his "three year history of chronic left-sided low back pain and left lower limb pain secondary to multilevel internal disc disruption syndrome of the lumbar spine." (R. 91). She increased the strength of Plaintiff's Neurontin to 300 m.g. He was tolerating the medication well, but without much improvement; the Amitriptyline 25 m.g. did help Plaintiff sleep. ( Id.). Upon examination, Plaintiff's range of motion and straight leg raise test were unchanged. (Id.). Plaintiff was walking 10-15 minutes most days and had lost a little weight, however, he felt no decrease in his left side pain. His sitting tolerance was noted to be "poor." ( Id.). As of November 18, 1998, Dr. Braverman increased Plaintiff's Neurontin strength to 500 m.g., as still no "significant pain relief was observed. (R. 83). On December 12, 1998, after involvement in a motor vehicle accident, Plaintiff's pain was exacerbated. (R. 79). Accordingly, Dr. Braverman increased his Neurontin to 700 m.g. ( Id.).
Neurontin is indicated for the management of postherpetic neuralgia in adults. See Physicians' Desk Reference 2565 (57th ed. 2002)(" PDR").
Ami triply line, or Elavil, is used for short-term treatment of various forms of depression and to quiet chronic neuropathic pain (nerve pain). See RxList, available at http://rxlist.com/cgi/pharmclips 2.cgi?keyword=%20Amitriptyline.
On January 15, 1999, Plaintiff reported continued "pain in his low back and left lower limb into the medial thigh area" that showed no significant improvement after acupuncture. (R. 77). Dr. Braverman continued Plaintiff on "light duty" and prescribed Neurontin and Elavil. (Id.).
October 11, 1999 interrogatory responses prepared by Dr. Kozin, reaffirmed that while Plaintiff suffers from chronic low back pain, his medications abate his pain, with no side effects. (R. 187). Dr. Kozin failed to state how long Plaintiff could sit or stand; he responded saying "undetermined" (R. 187-88), but concluded that Plaintiff could do "no work at all." (R. 188).
John A. Handal, M.D., evaluated Plaintiff's lumbar disc disease on October 13, 1999. (R. 102). Dr. Handal confirmed that a MRI of the lumbar spine revealed "lumbar disc disease with disc protrusions as L3-L4, L4-L5 and L5-S1, discography of the lumbar spine is reported as painful disc at L3-L4, L4-L5 and L5-S1, at the L2-3 level there is radial tearing as well of the annular fibers and an April 1998 EMG of the lower extremity which was normal." ( Id.). This doctor opined that pain management was Plaintiff's only treatment option. ( Id.).
On January 11, 2000, Bruce H. Grossinger, D.O., evaluated Plaintiff. (R. 107-115). He confirmed that Plaintiff suffered from left L5 radiculopathy and opined that "[Plaintiff's] work accident [of January 15, 1999] substantially aggravated both a disc-spur complex at L4-L5, as well as a herniated disc at L5-S1." (R. 109). Dr. Grossinger opined, that Plaintiff remained unfit for duty. ( Id.). On March 31, 2000, Dr. Grossinger further noted that patient had sacroiliac dysfunction (R. 107) and remained "unfit for duty." (R. 107).
D. Medical Assessments
Brent Weinerman, D.O., on May 8, 2000, after an independent medical examination of Plaintiff (R. 116-121), reported Plaintiff's "increased discomfort standing for more than 30 minutes or walking for more than several blocks and . . . difficulty getting up from a seated to a standing position." (R. 116). Dr. Weinerman further noted that, "although [Plaintiff] is complaining of sensory loss on examination, the EMG nerve conduction and velocity study was negative." (R. 121). The doctor concluded that Plaintiff could return to his duties as a Switching Equipment Technician, part-time (four hours per day), with ability to stand up and stretch periodically during the day as needed. ( Id.).
On July, 25, 2000, Dr. Edward Pickering, M.D., observed that Plaintiff's "straight leg rasing was tolerated at 80 degrees on the right and only 20 degrees on the left before he developed burning pain;" he concluded, "[Plaintiff is] disabled from work and the time of return is undetermined." (R. 123).
On January 5, 2001, Merrill Jay Mirman, D.O., a state agency reviewer, evaluated Plaintiff on behalf of the Commissioner. (R. 168-71). This reviewer noted that Plaintiff was medicated with Oxycontin and Ambien and diagnosed: 1) discogenic disorder of the lumbar region; 2) herniated intervertebral disc at lumbar 2; 3) chronic pain syndrome; and 4) degenerative joint disorder — hip (left). (R. 171). She opined that Plaintiff could lift and carry ten (10) pounds occasionally, stand and walk one hour or less, sit eight hours, with alternating sitting or standing at his option, push and pull, but should not conduct postural activities, or work around heights, moving machinery or vibrations. ( Id.).
Oxycontin tablets are used for "the management of moderate to severe pain when a continuous, around-the-clock analgesic is needed for an extended period of time." PDR at 2852.
Ambien is indicated for the short-term treatment of insomnia. PDR at 2980.
Next, on January 20, 2001, Daniel J. Luce, DDS, on behalf of the Commission, completed a Physical Residual Functional Capacity Assessment Form. (R. 173-80). Based upon his review of medical records, he determined that Plaintiff could occasionally lift twenty pounds, frequently lift ten pounds, stand and walk about 6 hours, sit about 6 hours and push or pull without limitation. (R. 174). Additionally, Plaintiff could only "occasionally" climb, balance, stoop, kneel, crouch, or crawl, and he should avoid vibrations and hazards. (R. 175, 177).
E. Vocational Testimony
At the administrative hearing, the ALJ elicited testimony from VE Gallen to determine if Plaintiff could return to his former job, and, if not, whether jobs exist in the national and local economies that a person of Plaintiff's age, education, physical and mental limitations could perform. (R. 202).
First, the VE classified Plaintiff's past primary position as a communications technician as light and skilled work. He categorized Plaintiff's desk position as sedentary and semi-skilled. (R. 202-03).
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." 20C.F.R. § 404.1567(b).
"Skilled work requires qualifications in which a person uses judgment to determine the machine and manual operations to be performed in order to obtain the proper form, quality, or quantity of material to be produced. Skilled work may require laying out work, estimating quality, determining the suitability and needed quantities of materials, making precise measurements, reading blueprints or other specifications, or making necessary computations or mechanical adjustments to control or regulate the work. Other skilled jobs may require dealing with people, facts, or figures or abstract ideas at a high level of complexity." 20 C.F.R. § 404.1568(c).
"Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Althougha sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." 20 C.F.R. § 404.1567(a).
"Semi-skilled work is work which needs some skills but does not require doing the more complex work duties. Semi-skilled jobs may require alertness and close attention to watching machine processes; or inspecting, testing or otherwise looking for irregularities; or tending or guarding equipment, property, materials, or persons against loss, damage or injury; or other types of activities which are similarly less complex than skilled work, but more complex than unskilled work." 20 C.F.R. § 404.1568(b).
The ALJ, then, asked the VE to assume an individual of Plaintiff's "age, education and past work history" who was capable of performing a full range of light work and could
lift carry, push, pull, up to 25 pounds occasionally and up to ten pounds frequently. That if that person could sit, stand or walk up to eight hours in a day. After two hours, that person would be required to have a 15 minute break for rest, relaxation, recuperation. After four hours, that person would requires no less than a 30 minute break. Minimal restrictions on that person's ability, climb, balance, stoop, crouch, kneel, crawl. No restrictions in the person's ability to engage in fine and gross manipulation. Minimal restrictions in that person's ability to work around moving equipment, unprotected heights, chemicals, excessive noise, heat, humidity, dust, fumes and gases. No mental limitations. Specifically, no limitations in that person's ability to follow work rules, to relate to coworkers, to deal with public, to use judgement, interact with supervisors, deal with stress, to function independently, to maintain attention, concentration, pace and persistence, to understand, remember and carry out job instructions, to maintain personal appearances, to behave in an emotional stable manner, to relate predictably in social situations or to demonstrate job reliability.
(R. 203-04). The VE assumed that Plaintiff could perform his previous job assuming the above criteria. Id. The VE further testified that Plaintiff could also return to the previous position as a maintenance technician or maintenance mechanic. (R. 204-05).
Next, the ALJ asked the VE to assume, hypothetically, a person with limits testified to by Plaintiff:
. . . severe limitations in his ability to lift, carry, push, pull, meaning less than five pounds. Severe restrictions in his ability to sit, stand and walk meaning no more than two hours in any one day. Total accumulatively. Moderate restrictions in his ability to climb, crouch, kneel and stoop and crawl. No restrictions in his ability to engage in fine and gross manipulations. Environmental restrictions were minimal to moderate as described by the [Plaintiff]. He described a level of pain that is uncontrolled by pain medications such that the following mental limitations would apply. Severe limitations in his ability to use judgement. Severe limitations in his ability to deal with stresses. Severe limitations in his ability to maintain attention, concentration, pace and persistence. And severe limitations in his ability to demonstrate job reliability."
(R. 205). Given these restrictions, the VE responded "[it is] less than a full range of sedentary work," Plaintiff could perform neither his past relevant, nor, indeed, any work. (R. 205-06).
III. DISCUSSION
A. Standard of Judicial Review
The role of this Court upon judicial review is to determine if substantial evidence in the administrative record supports the Commissioner's final decision. See Stunkard v. Sec'y of Health and Human Serv., 841 F.2d 57, 59 (3d Cir. 1988); Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986). Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) ( citations omitted). It is more that a mere scintilla of evidence but may be less than a preponderance. See Stunkard, 841 F.2d at 59. It is the responsibility of the ALJ to resolve conflicts in evidence, determine credibility of witnesses and weigh the evidence presented. See Richardson, 402 U.S. at 401. This Court's review is not de novo, and the evidence of record will not be weighed a second time. See Monsour Medical Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986), cert. denied, 482 U.S. 905 (1987).
B. Burden of Proof in Disability Proceedings
In order to be found "disabled" under the Act, a Plaintiff must carry the initial burden of demonstrating that he/she is unable 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 twelve months." 42 U.S.C. § 423 (d)(1)(A); 20 C.F.R. § 404.1505(a). Plaintiff may establish a disability through: (a) medical evidence meeting one or more of the serious impairments detailed in 20 C.F.R. Part 404, Subpart P, App. 1; or (b) proof that the impairment is severe enough that Plaintiff cannot engage in any type of "substantial gainful work which exists in the national economy." Heckler v. Campbell, 461 U.S. 458, 460 (1983); 42 U.S.C. § 423 (d)(2)(A).
Under the first method, a Plaintiff is considered per se disabled by meeting one of the "listed" impairments. Under the second method, a Plaintiff must initially demonstrate that a medically determinable disability prevents her/him from returning to employment. See Brown v. Bowen, 845 F.2d 1211, 1214 (3d Cir. 1988). If Plaintiff proves that her/his impairment results in functional limitations to performing her/his past relevant work, then the burden of proof shifts to the Commissioner to prove that work does in fact exist in the national economy which Plaintiff is capable of performing given his or her age, education, and work experience. See Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). This is a two-fold analysis. First, the Commissioner must evaluate the Plaintiff's job qualifications such as physical ability, age, education, and work experience. See 42 U.S.C. § 423 (d)(2)(A); 20 C.F.R. § 404.1520(f). Second, the Commissioner must consider, given Plaintiff's qualifications, whether jobs exist in the national economy that a similarly situated person could perform. See 20 C.F.R. § 404.1520(f), 404.1566-1569.
C. Review of the Administrative Law Judge's Decision
Plaintiff is seeking reversal of the ALJ's decision and remand for an award of benefits, from February 1, 1997 forward, on grounds that 1) the ALJ's determination was not supported by substantial evidence; 2) the ALJ erred in finding Plaintiff's allegations regarding his pain and limitations not entirely credible; and 3) the ALJ erred by postulating an improper and incomplete VE hypothetical. The Defendant requests affirmance of the Commissioner's decision that the Plaintiff was not disabled. If the ALJ's decision that Plaintiff was not disabled at any time through the day of his decision is supported by substantial evidence in the record, it should be affirmed. See 42 U.S.C. § 405 (g).
1. The ALJ's finding that Plaintiff can perform her past relevant work is unsupported.
In the fourth step of the sequential evaluation process for determining disability, the ALJ must determine the individual's capacity to perform past relevant work. See SSR 82-62.
Your impairment must prevent you from doing past relevant work. If we cannot make a decision based on your current work activity or on medical facts alone, and you have a severe impairment, we then review your [RFC] and the physical and mental demands of the work you have done in the past. If you can still do this kind of work, we will find that you are not disabled.Id. In this case, the ALJ considered the requirements of Plaintiff's past relevant employment, determined his current RFC and then decided that Plaintiff could still perform his past sedentary exertional job. This conclusion, however, is not fully supported by the record.
First, the ALJ, relying on the testimony of the VE, correctly concluded that Plaintiff's past relevant work as a switching equipment technician was performed at a sedentary exertional level. (R. 17). According to Plaintiff, he lifted no more than ten pounds frequently, sat for seven hours a day, walked minimally and never climbed, stood or lifted heavy items. (R. 50, 59). "The [Plaintiff] is the primary source for vocational documentation, and statements by the [Plaintiff] regarding past work are generally sufficient for determining the skill level; exertional demands and nonexertional demands of such work." SSR 82-62 at 3. The attributes Plaintiff gave are consistent with the Commissioner's definition of sedentary work. See 20 C.F.R. § 404.1567(a). Difficulty arises, however, because Plaintiff testified that, based on pain, he could no longer sit continually as his past job required. (R. 195, 198). Rather, he indicated that the short breaks afforded were inadequate to relax his back. (R. 202). Plaintiff said several attempts to work failed precisely because he could not stand and stretch at will. (R. 193, 201-02). Plaintiff's functional limitation to less than a full range of sedentary work is supported by several medical sources. (R. 91, 121, 133, 137, 171).
The ALJ noted Plaintiff's well documented back problems:
[Plaintiff] has a history of low back pain and has undergone a series of acupuncture treatments, physical therapy, and epidurals and has been prescribed various medications. In January 1999, he slipped and fell. He alleges that he has been unable to work since that time because of lower back pain. When examined December 13, 1999, his gait was normal. He had no pain on internal or external rotation of the hip. Neurologic examination of the lower extremities, motor, sensory and deep tendon reflexes are all normal. MRI of the lumbar spine indicated that [Plaintiff] had lumbar disc disease with disc protrusion at the L3-4, L4-5 and L5-S1. Discogram revealed painful disc at the L3-4-L4-5 and L5-S1. His medications included Vicoprofen, Oxycontin, E-flexor and Ambien. No side effects from any of the medications was noted.
(R. 15). The ALJ also considered the opinion of a state agency physician, Dr. Luce, who determined that Plaintiff retained the capacity to perform light exertional work and, hence, could return to his past relevant work as a communications technician. (R. 16). The ALJ found, however, that "[Plaintiff was] slightly more limited than found by the state agency, but even giving [Plaintiff] the benefit of doubt as to the limitations imposed by his impairment, he still retains the functional capacity for sedentary exertional work." ( Id.) However, Plaintiff's ability to perform the full range of sedentary work was incomplete.
Numerous medical assessments further restricted Plaintiff's sedentary residual capacity. Dr. Kozin, Plaintiff's treating physician, restricted Plaintiff's postures, workhours and specifically noted his need to stand and stretch as necessary. (R. 133, 137). Dr. Kozin, appropriately, based his restrictions on Plaintiff's consistently reported pain and spasms, reported inability to work, sleep or sit, and Plaintiff's objectively confirmed tri-level bulging and/or herniated disks. (R. 148). Dr. Braverman, for identical medical reasons (R. 94), Plaintiff's limited range of motion upon examination, and radiculopathy also assessed that Plaintiff's sitting tolerance was poor. (R. 91). Dr. Grossinger, added sacroiliac dysfunction to the Plaintiff's list of back ailments and deemed Plaintiff "unfit for duty." (R. 107, 109). Dr. Weinerman, D.O., reported that Plaintiff had "increased discomfort standing for more than 30 minutes or walking for more than several blocks and [hed] difficulty getting up from a seated to a standing position." (R. 116). He recommended Plaintiff work only four hours a day, and have the option to stand up and stretch at will periodically throughout the work day. ( Id.) Dr. Pickering, based on objective findings of radiculopathy, concluded that Plaintiff was indefinitely "disabled from work." (R. 123).
Moreover, Merrill Jay Mirman, a state agency reviewer, noted Plaintiff's diagnosis: 1) discogenic disorder of the lumbar region; 2) herniated intervertebral disc at lumbar 2; 3) chronic pain syndrome; and 4) degenerative joint disorder — hip (left). (R. 171). She opined that Plaintiff could lift and carry ten pounds on occasion, stand and walk one hour or less, sit eight hours with alternating sitting or standing at his option, push and pull, but could not perform postural activities or work around heights, moving machinery or vibrations. ( Id.) (emphasis added).
The ALJ's decision does not specifically address the above cited reports and progress notes. Hence, he did not give reasons for accepting or rejecting their contents. Inasmuch as these physicians' conclusions, if credible, would reduce Plaintiff's physical RFC to less than a full range of sedentary work, Plaintiff's ability to return to his former position is questionable. This case should be remanded so that the ALJ can resolve conflicts in the medical opinions and fully explain his choice among RFC's set by various medical providers. Thereafter, any well-supported limitations, shall be included in any hypothetical posed to the VE.
2. The ALJ's credibility assessment is not supported by substantial evidence.
Plaintiff argues that the ALJ erred in finding his subjective testimony to be not fully substantiated by medical evidence. To be credible, subjective complaints of pain must bear some relationship to the claimant's physical status, as demonstrated by objective medical findings, diagnoses, and opinions. See Baerga v. Richardson, 500 F.2d 309 (3d Cir. 1974), cert. denied, 420 U.S. 931 (1975); see also 20 C.F.R. § 404.1526, 404.1529. An ALJ may discredit a claimant's complaints of pain when: (1) there is contrary medical evidence in the record, and (2) the ALJ explains the basis for rejecting the complaints. See Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993). If medical signs or laboratory findings show that claimant has a medically determinable impairment that could produce pain, the ALJ must consider all available evidence, including claimant's statements, to determine whetherand howthe symptoms limit claimant's capacity to work. See 20 C.F.R. § 404.1529(c)(1).
Pain can be a disabling condition in itself, but only where it is so intense as to preclude an individual from engaging in substantial gainful activity. See Cancel v. Harris, 512 F. Supp. at 69 (E.D. Pa. 1981); Dupkunis v. Celebrezze, 323 F.2d 380, 381 n. 5 (3d Cir. 1963). Plaintiff bears the burden of establishing by credible evidence that his pain is real and of disabling severity. See Torres v. Harris, 494 F. Supp. 297, 300 (E.D. Pa. 1980)( citing Bittel v. Richardson, 441 F.2d 1193, 1195 (3d Cir. 1971)).
Relevant factors in evaluating subjective complaints of pain include: Plaintiff's daily activities; the location, duration, frequency, and intensity of Plaintiff's pain or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness and side effects of any medication Plaintiff takes or has taken to alleviate her pain or other symptoms; treatment, other than medication, Plaintiff receives or has received for relief of pain or other symptoms; any measures Plaintiff uses or has used to relieve pain or other symptoms; and other factors concerning functional limitations and restrictions due to pain or symptoms. See 20 C.F.R. § 404.1529(c)(3); SSR 96-7p.
Also, Plaintiff's statements, appearance, and demeanor; evidence of treatment; and opinions of physicians with regard to credibility and severity of claimant's subjective complaints may help to determine credibility. See Alvarez v. Sec'y of Health and Human Serv., 549 F. Supp. 897, 899-900 (E.D.Pa. 1982). When credible testimony is compromisedby conflicting objective medical testimony, alleged symptoms and pain will only be considered to the degree that they are consistent with medical and other evidence. See 20 C.F.R. § 404.1527(c); 416.927(c).
The ALJ incorrectly applied the above-cited criteria in assessing Plaintiff's credibility. The ALJ correctly summarized Plaintiff's subjective complaints as follows:
[Plaintiff] testified that he cannot return to work because sitting is difficult. He said that he can sit for 20 to 30 minutes at a time, stand for 30 minutes and walk one block. He said he has difficulty sleeping and takes medications. He also said he has difficulty concentrating, but is not seeing any psychiatrist or psychologist. [Plaintiff] testified that he has lower back pain that radiates down his left leg. Because of this pain, he cannot sit or stand for long periods of time. He said that his medications Oxycontin upsets his stomach. He said that he cannot lift a great deal of weight, but he can take the trash out.
(R. 16). Next, the ALJ assessed Plaintiff's credibility:
The Administrative Law Judge finds [Plaintiff] is not as limited as he alleges. Although [Plaintiff's] impairment would cause some limitations, the Administrative Law Judge finds that [Plaintiff's] statements concerning his impairment and its impact on his ability to work are not fully credible.
( Id.).
This truncated analysis does not adequately apprise the court of what aspects of Plaintiff's complaint's or testimony were found to be not credible. Hence, it is impossible to tell if the ALJ discredited Plaintiff for legally proper reasons or for no reason at all. See 20 C.F.R. § 404.1529(c)(1); 404.1529(c)(3). This detailed analysis is required, since Plaintiff's subjective complaints are consistent with his diagnosed discogenic disease. (R. 16, 91, 123, 149, 181, 187). Plaintiff's assertion that he can sit "20 to 30 minutes at a time, stand for 30 minutes and walk one block" (R. 16) was documented by and deemed credible by Doctors Weinerman, Braverman, Kozin and Mirman. Dr. Weinerman opined that Plaintiff "has increased discomfort standing for more than 30 minutes or walking for more than several blocks and has difficulty getting up from a seated to a standing position." (R. 116). Dr. Braverman asserted that Plaintiff only "walks 10-15 minutes a day" and that his "sitting tolerance is poor." (R. 91). Furthermore, Dr. Kozin also noted Plaintiff's inability to sit or walk more than "one to two blocks." (R. 160, 187). Dr. Mirman, a state agency reviewer, recognized Plaintiff's limited ability to stand and walk, and recommended a sit/stand at will option. (R. 171).
Plaintiff's doctors also imposed lifting and postural limits. Dr. Kozin, restricted Plaintiff in "bending, squatting, stooping and climbing." (R. 133, 137). Furthermore, Dr. Mirman imposed a ten pound lifting limitation. (R. 171). The ALJ was required to consider and address these medical opinions in assessing Plaintiff's credibility, as Plaintiff's symptoms are fairly consistent with his subjective complaints. When a conflict exists in the evidence, the ALJ may determine the weight of the respective medical opinions, but cannot reject evidence arbitrarily. See Plummer v. Apfel, 1999 WL 571062 (3d Cir. 1999) (citing Mason, 994 F.2d at 1066). Upon remand, the ALJ shall reevaluate Plaintiff's credibility in light of the entire record and give specific medical reasons for finding any doctor's medical restriction (not ultimate conclusion) inappropriate.
3. The ALJ relied upon the VE's response to an incomplete hypothetical question.
Finally, Plaintiff claims that the VE's testimony was based on a defective hypothetical and, therefore, did not constitute substantial evidence. To serve as substantial evidence that a Plaintiff can perform his prior work, the VE must respond to a hypothetical question that encompasses all of Plaintiff's limitations that are supported by the objective medical evidence of record. See Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987); Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984); While the "ALJ need not include facts that are substantiated by Plaintiff's testimony alone," Podedworny, 745 F.2d at 217, he must include credible symptoms of a serious condition.
The first hypothetical scenario presented to the VE acknowledged Plaintiff's postural and environmental restrictions. (R. 204). However, it was legally insufficient in not including Plaintiff's well-documented need for a sit/stand at will option.
The ALJ asserted that "[a]fter two hours, he would be required to have a 15 minute break for rest, relaxation, recuperation. After four hours, [Plaintiff] would require no less than a 30 minute break." Because this hypothetical scenario does not encompasses all of Plaintiff's limitations that are supported by the objective medical evidence of record, the ALJ's reliance on the VE's response thereto does not constitute substantial evidence. See Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987).
Upon remand, the ALJ shall submit a complete list of all of Plaintiff's credible impairments/limitations to the VE in a hypothetical question. Furthermore, should the ALJ determine that Plaintiff cannot return to his prior sedentary position, he shall determine, using VE testimony, if other work in the national economy exists that Plaintiff could perform. See 20 C.F.R. § 404.1520(f). This court is by no means suggesting that Plaintiff be found disabled. Rather, the ALJ's conclusion, based on a flawed VE testimony, is not supported by substantial evidence.
IV. CONCLUSION
After a thorough review of the record, this court finds that several aspects of the ALJ's decision are not supported by substantial evidence in the record. Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 26th day of September 2003, it is respectfully requested that:
1. The Report and Recommendation be APPROVED and ADOPTED;
2. The Commissioner's Motion for Summary Judgment be DENIED;
3. The Plaintiff's Motion for Summary Judgment be GRANTED in part and DENIED in part; and
4. The matter be REMANDED to the Commissioner of the Social Security Administration, so that the Administrative Law Judge (ALJ) can conduct additional proceedings consistent with this Report and Recommendation. Specifically, upon remand the ALJ should 1) properly re-evaluate and assess Plaintiff's RFC, obtaining a medical expert if necessary; 2) re-evaluate Plaintiff's credibility; and 3) present a complete hypothetical question to the VE.