Opinion
8:00CV149
March 19, 2001
MEMORANDUM, ORDER, AND JUDGMENT
I. Introduction
Before me is the plaintiff's motion for summary judgment. Filing No. 13. The plaintiff asks me 1) to find that the defendant erred in determining that she is not disabled within the meaning of the Social Security Act (Act), and 2) to order the defendant to pay her disability insurance benefits under Title II of the Act, 42 U.S.C. § 401 et seq., and supplemental security income (SSI) benefits under Title XVI of the Act, 42 U.S.C. § 1381 et seq., or in the alternative, to remand the matter to the defendant for further hearings. I have reviewed the parties' briefs, the transcript, and the applicable law, and I conclude that the case must be remanded to the defendant for further proceedings in accordance with this opinion.
II. The Record
Because the plaintiff was pro se at the time of the defendant's decision to deny benefits and because the plaintiff allegedly waived her right to personally appear for a hearing, due process concerns require me to scrutinize the record carefully to determine whether the defendant's decision is supported by substantial evidence in the record as a whole. See Shiver v. Shalala, 879 F. Supp. 1021, 1024 (D. Neb. 1995).
Plaintiff's Medical Conditions. The plaintiff was thirty-eight years old at the time of the ALJ's decision. She is a high school graduate. The plaintiff had worked for United of Omaha/Mutual of Omaha for over thirteen years when, in 1994, she was transferred to a new position as a senior customer service analyst. Filing No. 9, Transcript 102-103 (TR). She soon began to experience physical difficulties associated with the long hours spent sifting at a desk, answering the phone and working on the computer. TR 104. She consulted a physician, who recommended anti-inflammatory drugs and exercise. TR 205. Her employer several times attempted to adjust her work station to alleviate her discomfort, but the pain in her legs, lower back, wrists, and neck persisted. TR 205, 244, 246, 247, 250, 252.
In 1995, the plaintiff began to see Dr. Virginia Aguila, M.D. Dr. Aguila initially prescribed physical therapy and ordered the plaintiff off work for three weeks. The plaintiff then returned to work half days, continuing to experiment with various work station adjustments, but the plaintiff's pain returned as soon as she increased her hours to six a day. TR 241-251. The plaintiff and her employer discussed finding her a different position, but nothing came of these discussions. TR 241. Her employer apparently sent the plaintiff to Dr. Kurtis Hoppe, M.D., at Immanuel Rehabilitation for a functional capacity evaluation sometime in late 1995 and then again in January 1996, but Dr. Hoppe's reports are not part of the transcript. TR 230-240, 242-244. As part of his recommendations, he evidently suggested to Dr. Aguila that the plaintiff begin a second antidepressant such as Zoloft in addition to the Elavil she had been taking since July 1995. TR 239, 248. The plaintiff continued to experience progressively worsening chronic pain, however, and the stress of not being able to perform her job began to take its toll on the plaintiff's mental and emotional states. TR 237. Dr. Aguila again took the plaintiff off work at the end of March 1996. TR 236.
In an attempt to discover the cause of the plaintiff's chronic pain, Dr. Aguila referred the patient to a rheumatologist, Dr. Jay Kenik, M.D., in early April 1996. Dr. Kenik diagnosed the plaintiff as having "classic" fibromyalgia. TR 235, 279, 281. In a letter to Dr. Aguila dated April 5, 1996, he wrote that the plaintiff
has diffuse aching discomfort in the proximal upper and lower extremities. Most of her symptoms are towards the supra and infrascapular region. She has very characteristic tender points, along with a strong history of chronic fatigue, along with poor quality of sleep and symptoms of numbness and tingling in the hands do not follow a specific median or ulnar distribution. Many of these symptoms did originate as a result of some repetitive use with her arms extended as a data processing entry worker. Therapeutically, she's been on Zoloft recently started at 50 mg per day, along with amitriptyline 75 [mg] at bed which she takes intermittently. She does exercise every other day with an exercise bike. Our physical examination today did reveal characteristic tender points. No discrete synovitis or effusion was noted. Neurologically there were no focal deficits.
TR 279. On April 26, 1996, Dr. Kenik wrote to the plaintiff's employer about the fibromyalgia diagnosis. He stated that
a trial of sedentary type work would be appropriate with the patient avoiding any repetitive activities or lifting greater than 10-15 pounds occasionally. She should be given the opportunity to get up and move around and rest periodically and this could be started as a trial with four hours, gradually working up to eight hours per day.
TR 277.
The plaintiff's employer eliminated her job in April 1996.
In November 1996, the plaintiff's employer also determined that she was not eligible for long-term disability because "no physical or psychiatric disability exists that would prevent you from performing the material duties of your occupation [of a customer service representative]." TR 199.
On May 9, 1996, the plaintiff was hospitalized during a psychotic episode. On May 8, she had begun to hear voices, including those of Dr. Aguila and her mother, giving her instructions. Later that day, after having attended religious services, she came to believe that God had chosen her to be the mother of the messiah. That evening, believing that the Holy Spirit had instructed her not to be ashamed of anything, she walked out of her house naked to sit on her porch. TR 188. The plaintiff's hospitalization lasted five days. A psychiatrist, Dr. Joanna E. Faryna, M.D., diagnosed the plaintiff with a psychotic disorder, not otherwise specified, and possibly manic depressive illness with psychotic features. TR 184-190, 232, 363. Dr. Faryna discontinued the plaintiff's Zoloft prescription and instead prescribed Depakote.
Following this hospitalization, the plaintiff continued to see Dr. Kenik. In a letter to her then-attorney dated May 16, 1996, Dr. Kenik stated that
work was a significant contributing factor to the onset of these signs and symptoms [of fibromyalgia]. These signs and symptoms are rendering her temporarily totally disabled from her previous occupation. . . . It is my feeling that the protracted sifting that she was doing did indeed contribute to her signs and symptoms. While environmental stressors such as in the work place can contribute to fibromyalgia, I did not address this in my evaluation of the [plaintiff] to determine if this was a significant contributing factor. At present, her current underlying condition does preclude [the plaintiff] from performing the duties which she was performing as a customer service representative.
TR 276. In September 1997, Dr. Kenik observed that the plaintiff remained symptomatic. He noted that she also exhibited anxiety symptoms and some hyperventilation as well as coughing. Her rheumatic complaints persisted as did her depressive symptoms. While she continued to have evident soft tissue tender points, Dr. Krenik found that he had good strength and "no objective synovitis or effusion." TR 336.
In that same month, Dr. Kenik noted in a report to a claims examiner that the plaintiff "has responded poorly to our therapeutic endeavors" and that the plaintiff's "rheumatic complaints have indeed persisted," with "multiple soft tissue tender points." TR 265. He stated that the plaintiff would have trouble with any repetitive activity particularly if it involved extending her arms out, would have difficulty sifting for an eight-hour day without being allowed to get up and move around, would have difficulty standing for protracted periods, and would only occasionally be able to lift weight heavier than ten pounds. Id. Dr. Kenik also mentioned the plaintiff's chronic fatigue, suggesting that a "work hardening program" might help the plaintiff increase her endurance from three to fours hours a day to a goal of eight hours a day. Id. Dr. Kenik warned, however, that "[i]n spite of our endeavors, 10-15% of patients remain functionally disabled. In [the plaintiff's] case the restrictions as noted above would indeed exist." Id. Dr. Kenik apparently saw the plaintiff for the last time in December 1997. TR 337.
The plaintiff also continued to see Dr. Faryna after her hospitalization. Her diagnosis remains psychotic disorder, not otherwise specified, most likely due to bipolar affective disorder, manic phase with psychotic features. TR 338, 363. In connection with the plaintiff's application for SSI, Dr. Faryna wrote in a letter dated August 29, 1997, that while the plaintiff's psychotic symptoms in May 1996 resolved rapidly with treatment with Haldol, she continues to struggle with depression and anxiety. Dr. Faryna noted that the plaintiff's
symptomatology has been in response to stress in her life. She did not have any psychiatric problems until about two years ago. Around that time, her physical health started deteriorating due to fibromyalgia and pain syndrome, which apparently were diagnosed by [the plaintiff's] primary care physician — Dr. Aguila. It is noted that due to various physical and emotional problems, [the plaintiff] has not been able to return to competitive employment. It is of concern that she's very prone to have exacerbation of her psychiatric condition when under a lot of stress, which would be anticipated in a work environment.
TR 363. In April 1998, Dr. Faryna sent the administrative law judge (ALJ) a letter describing the plaintiff's progress related that the plaintiff
has done relatively well over the last few months although she continues to say that she has `good days and bad days'. At times, the [plaintiff] experiences increase in depression and anxiety and she recognizes that it is very difficult for her to handle any stress. She still does not feel completely back to her normal self from prior to her first psychotic episode. Ms. Scott continues to be prone to experience mood disturbance and is at risk of having another psychotic episode if exposed to stressful situations. Prognosis remains guarded.
TR 338.
Despite the plaintiff's physical and mental difficulties in 1996, she applied for and received vocational rehab services in mid-1997, and began taking accounting classes at a community college in December 1997. TR 96, 146, 1 202. The plaintiff and vocational rehabilitation counselors believe that if she receives an accounting degree, she able to work from home on a computer at her own pace. TR 183. Her fibromyalgia, however, precludes her from eve her own papers. Id.
In a letter supporting the plaintiff's application for services, Dr. Faryna wrote that the plaintiff no longer suffered from hallucinations, delusions, or disorganized thinking, and that although her mood was stable, she still experienced low-grade depression or anxiety. Dr. Faryna further stated that the plaintiff's prognosis with continued treatment was "good," but that she needed to remain on medications and under a doctor's care. TR 200. She also observed that "[d]ue to the underlying psychiatric condition, [the plaintiff] is probably prone to increased symptomatology when under a lot of stress, which may put some limitations on her ability to function in competitive employment." Id. Dr. Aguila also wrote a letter for the plaintiff in which she stated that the plaintiff had been diagnosed with fibromyalgia. She observed that repetitive movements performed in the plaintiff's former work as a data processing entry worker had "caused numbness and tingling in the hands." TR 222. Dr. Aguila noted physical therapy and treatment at a pain clinic had brought about no significant improvement in the plaintiff's condition. Id. Consultative Examinations. Dr. Bruce Gutnik, M.D., conducted a two-hour consultative psychiatric diagnostic evaluation of the plaintiff on July 15, 1997. TR 135, 203-214. Dr. Gutnik also reviewed the plaintiff's medical records, physical therapy records, and a deposition the plaintiff gave in June 1997 in connection with a traffic accident that had occurred ten years earlier. TR 203. Dr. Gutnik concluded that the plaintiff suffered, first, from bipolar I disorder, the most recent episode being manic with mood congruent psychotic features, and second, from anxiety disorder not otherwise specified. TR 213. He stated that the former was in full remission. Id. He also stated, with reasonable medical certainty, that both conditions were long standing, predating the onset of the plaintiff's fibromyalgia. Id. He further stated, with reasonable medical certainty, that "neither condition was caused by or exacerbated by work related stress" and that the plaintiff was not at the time of the examination psychiatrically disabled. Id.
From April 1996 through February 1997, the plaintiff also continued to see Dr. Aguila for acute, chronic sinusitis. TR 224-233.
In July and October 1997, DDS physicians also completed Mental Residual Functional Capacity assessment forms, TR 282-285; 305-313, Psychiatric Review Technique forms, TR 286-296; 314-322, and Residual Functional Capacity assessment forms, TR 297-304; 323-330. While the ALJ clearly considered the information in these assessments, the ALJ did not specifically refer to them in the decision.
Dr. George Pratt, D.O., the medical director of Works Occupational Health Services — Omaha Works, also conducted a consultative examination of the plaintiff in July 1997. TR 215-217. In the "Impressions" section of his report, Dr. Pratt stated that a finding of fibromyalgia was not supported by his examination, despite Dr. Kenik' s 1996 diagnosis. TR 216. He noted that at the time of the examination, she had full range of motion without pain or restriction to any of her joints. He also stated that the plaintiff was morbidly obese and that diet and exercise might decrease her fibromyalgia symptoms and her knee pain. Id. He also mentioned that the plaintiff engaged in "tobacco abuse on no income," evidently referring to the plaintiff's twenty-year habit of smoking one package a day of cigarettes, and that she had a "history of illicit drug use," referring to her experimentation seventeen years previously. TR 215, 216. Dr. Pratt concluded that the plaintiff's
ability to perform income producing / work-related activities is not impaired. Sitting standing, walking, bending, lifting, and carrying objects of reasonable weight should not be a problem. Hearing, speaking, or traveling should not be a problem. It does not appear the alleged impairment affects use of the patient's back, hands, wrists, or feet. No assistive devices are currently medically indicated.Id. (emphasis in original).
Plaintiff's Statements. As noted at the outset of this opinion, the plaintiff did not appear before the administrative law judge (ALJ) at a hearing. She did, however, complete several reports and forms containing statements that the ALJ used to evaluate the plaintiff's credibility.
These reports and forms included a disability report, TR 79-100; a work history report, TR 101-115; a function report, TR 116-120; a pain report, TR 120-128; a reconsideration disability report, TR 133-136; a supplemental disability report, TR 142-145; a claimant's statement form, TR 146-148; a claimant's list of medications, TR 150; a claimant's work background, TR 152; and an application for SSI, TR 345-348. In addition, she mistakenly filled out portions of the interrogatories sent to her for informational purposes that were intended for the vocational expert. TR 154-160.
The plaintiff reported that she cannot work because she cannot sit or stand for much more than an hour, nor can she repeat motions or type because she gets cramps in her hands and wrists. TR 80. She noted that in April 1995, she experienced "multiple problems (legs, wrists, upper and lower back)" that were not diagnosed until April 1996 when the plaintiff began treatment with Dr. Kenik. TR 82. He increased her anti-depression medication and advised her to exercise every day. TR 84. The plaintiff reported that she was hospitalized for an "emotional breakdown" in April 1996. TR 86. At the time she completed the disability report, the plaintiff was taking hydroxyzine for anxiety, amitriptyline as a sleep aid and for depression, and Depakote for depression and mood swings. TR 93. When she completed the reconsideration disability report in September 1997, she indicated her condition had worsened with "[i]ncreased mood swings and depression, chronic sinus attacks from fibromyalgia, continued ongoing joint, neck and back pain." TR 133. She noted that the increased mood swings and depression occurred whenever she experienced "any stress in everyday activities" Id.
In mid 1997, Dr. Kenik apparently took the plaintiff off amitriptyline because it caused her to crave sweets and resulted in excessive weight gain. As an over-the-counter sleep aid, Dr. Kenik advised the plaintiff to take melatonin. TR 146, 147, 150.
Functionally, the plaintiff reported that she experienced lower back pain when she tried to vacuum and upper back and neck pain when she carried grocery bags. TR 117. She wrote that she tired easily from light house work, and that even sweeping causes her lower back to hurt. TR 122. She washes dishes "every other week once a day," but only washes the laundry, leaving the folding and putting away to her school-aged children. TR 142. She also reported that she found it difficult to walk even short distances, to go up and down stairs, or to drive for a long time. TR 118, 135. She is able to do her own grocery shopping. TR 143. She wrote that she cooked two or three times a week, making salads, sandwiches, or baked chicken. TR 142. She does only light yard work, watering the grass twice a month and picking up debris from the yard or weeding "once a week as needed." TR 143. She has difficulty lifting herself from the bathtub, and experiences wrist pain and finger cramps when combing her hair or brushing her teeth. TR 135, 144.
The plaintiff also indicated that she could no longer sit, stand, walk, kneel, squat, climb, bend, lift, or use her hands without experiencing pain. TR 119. She noted that anything can make her pain worse. "If I forget and attempt to open a jar, I cannot use my hand for a week or two." TR 122. "[A]ny activity can result in all over or isolated body pain at any time. Whenever it rains I am bothered with severe body pain and can barely get out of bed." TR 136. Exercise relieves her pain somewhat; she wrote that the physical therapy, heat, and massage she received in July 1995 while covered by insurance also helped. TR 123. The plaintiff characterized her pain as a continuous aching, burning, cramping, stiffness in both legs, lower and upper back, wrists, and hands. TR 122. Stress aggravates her pain. TR 122.
The plaintiff described a circumscribed social life, limited to visiting her mother once a month for approximately thirty minutes to an hour. She "very seldom" sees friends and relatives unless they come to her home. TR 142. She attends church and community activities occasionally, but her participation is limited to "sitting and listening." Id. She supervises her children in family activities and after school, helping them with homework and with getting something to eat. TR 143. She also indicated her limitations negatively affected her home life and raising her children. TR 157. For relaxation or recreation, the plaintiff "take[s] quiet time once a day." TR 143. She indicated that she naps from one to three hours a day. TR 144. The plaintiff reads or watches old movies, documentaries, and sitcoms for an hour or two at a time. TR 143. She also noted that it takes her "twice as long to stay focused and complete bills, paperwork, etc." TR 157.
When asked if her illness had changed her life in any way, the plaintiff wrote:
Yes. Physically and mentally limited to non-stressful activities. I am a single parent who was making $2400 a mo [sic] living comfortably. I am now barely surviving on $364 a mo [sic] and will have to be retrained in a totally different field with no stress. I will never be able to work full time for a co. [sic] again. I can not [sic] stand too long, I cannot sit too long. There is pain in my body at all times. I cannot be confined to any setting other than home for more than 3 hours at a time unless I can lay down or exercise or stand up at leisure. I am very disturbed by this new reality.
TR 144.
Mother's Statements. The plaintiff's mother, Betty Hughes, filled out a supplemental information form in September 1997, TR 139-141, which the ALJ considered in making a credibility determination. TR 21. Ms. Hughes indicated that she talked to the plaintiff every day on the phone and saw her on average three days a week. TR 139.
According to Ms. Hughes, the plaintiff's days are quiet. "Thea only does what's necessary and she has help from her family." TR 141. Ms. Hughes wrote that the plaintiff gets up at 6:30 a.m. and gets the children ready for and off to school. TR 139, 141. Combing her own hair and the children's hair is difficult for the plaintiff because it causes pain in her fingers and wrists. TR 140. The plaintiff walks one daughter to school when her pain is not too intense. TR 139. She does grocery shopping and light household chores, as needed, but her family must assist her with the remainder of the housework. TR 139, 141. She exercises on a stationary bike as directed by her physician. TR 141. To relieve stress, she also tries to nap during the day while her two children are at school. TR 139. The plaintiff prepares most meals for her family, but her oldest daughter must help her. Id. Ms. Hughes says that the plaintiff does not watch daytime television, but reads on average one hour a day. TR 139. In the evenings, she prepares dinner for the children and spends time with them. TR 139, 141. She might watch television or read, but is in bed by 10:30 p.m.
Id. The plaintiff participates in church activities and community events when she feels up to it, but does not otherwise socialize with friends since the onset of her illness. She does not drink. TR 139.
As to the plaintiff's physical condition, Ms. Hughes reports that the plaintiff has stress-related sinus attacks that cause her to sweat profusely and to choke and cough. The coughing in turn causes incontinence. The plaintiff becomes nervous, withdrawn, and anxious during these attacks, and suffers mood swings. TR 140. Ms. Hughes also notes that the plaintiff responds to changes in her routine with anxiety, mood swings, and an inability to concentrate. TR 140-141.
In her concluding remarks, Ms. Hughes wrote:
I watched my daughter change from a well adjusted, self-sufficient person to someone that had to accept an illness that changed her whole life. She has physical problems such as difficulty using her hands, back and leg problems. Stress affects her condition. It has been hard for her to accept her physical limitations and this has affected her mental condition further. She lost her earnings and had to accept welfare which she can barely exist on. Not to mention the stigma attached to welfare recipients. This is a person that was employed for 15 1/2 yrs. [sic] with one employer. Her position was terminated after she became ill and she has been refused disability payments although her illness is job related. Thea has not fully accepted her illness, to this date[,] and I'm afraid she does not realize how fragile her health is now. Also, we have been helping Thea in every way we can since her illness. She does not receive any help from other sources with support services etc. [sic]
TR 141.
Vocational Expert's Answers to ALJ's Interrogatories. In June 1998, the ALJ sent written interrogatories about the plaintiff to Gail F. Leonhardt, a vocational expert (VE) under contract to the Social Security Administration's Office of Hearings and Appeals. The VE initially determined that the plaintiff's job as a senior customer service representative was a semi-skilled job, "at the highest level of semi-skilled, only one level below skilled." TR 171.
The ALJ posed three hypotheticals. In the first, ALJ asked the VE to assume an individual with fibromyalgia who is thirty-seven years old with a 12th grade education and who is able to lift ten pounds occasionally and frequently; is able to stand and/or walk with normal breaks for a total of about two hours in an eight-hour workday, but should avoid standing for protracted periods of time; is able to sit with normal breaks for a total of about six hours in an eight-hour workday; should avoid having arms outstretched in front of her or "extended overhead for repetitive or protracted periods," TR 165; should avoid stressful work environments with frequent changes in work setting; has a moderate limitation in ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without rest periods; and a moderate limitation in ability to maintain attention and concentration for extended periods. TR 164-165.
In the second hypothetical, the ALJ asked the VE to assume an individual with fibromyalgia who is thirty-seven years old with a 12th grade education and who is able to occasionally lift and/or carry twenty pounds; is able to frequently lift and carry ten pounds; able to stand or sit with normal breaks for six hours out of an eight-hour workday provided she has the opportunity to periodically alternate sitting and standing to relieve discomfort; should avoid stressful work environments with frequent changes in work settings; has a moderate limitation in ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without rest periods; and a moderate limitation in ability to maintain attention and concentration for extended periods. TR 165.
In the third hypothetical, the ALJ asked the VE to assume that the statements that the plaintiff wrote on her courtesy copy of the interrogatories and submitted to the ALJ were credible. TR 165.
In response to the first two hypotheticals, the VE concluded that the plaintiff would not be able to return to her past relevant work as it is typically performed in the national economy or was actually performed by the plaintiff because a senior customer service representative is considered a highly unpredictable, stressful position. TR 171. The VE further concluded that the plaintiff would be able to function as a cashier or a receptionist. In the Dictionary of Occupational Titles, a cashier is classified as light in terms of exertional requirement and unskilled. A receptionist is considered a sedentary, semi-skilled position, "consistent with her past transferable skills. It would certainly demand a lower stress level than an accounting clerk (accounts receivable, accounts payable, or bookkeeper), for which she is presently pursuing part-time training." TR 172.
The VE stated that cashier and receptionist jobs existed in substantial numbers in the national, state, and local economies. Id. The VE noted, however, that few semi-skilled cashier jobs exist; most are unskilled jobs to which the plaintiff could transfer the skills she acquired as a result of her high school education and her post-secondary accounting classes. The plaintiff would be able to transfer the skills acquired in her past work to a job as a receptionist, since those skills — calculator use as well as telephone and clerical skills — are "much more demanding and complicated" than any needed in a receptionist position. Id.
III. ALJ's Decision
An ALJ evaluates a disability claim according to a five-step sequential analysis prescribed by Social Security regulations. The ALJ examines
any current work activity, the severity of the claimant's impairments, the claimant's residual functional capacity and age, education and work experience. See 20 C.F.R. § 404.1520(a); Braswell v. Heckler, 733 F.2d 531, 533 (8th Cir. 1984). If a claimant suffers from an impairment that is included in the listing of presumptively disabling impairments (the Listings), or suffers from an impairment equal to such listed impairment, the claimant will be determined disabled without considering age, education, or work experience. See Braswell, 733 F.2d at 533. If the Commissioner finds that the claimant does not meet the Listings but is nevertheless unable to perform his or her past work, the burden of proof shifts to the Commissioner to prove, first, that the claimant retains the residual functional capacity to perform other kinds of work, and second, that other such work exists in substantial numbers in the national economy. See Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000). A claimant's residual function capacity is a medical question. See Id. at 858.Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000).
Using this analysis, the ALJ concluded that the plaintiff is not disabled within the meaning of the Social Security Act. TR 25. The ALJ found at step one that the plaintiff had not engaged in substantial and gainful work activity since March 29, 1996. TR 15. At step two, the ALJ found that the plaintiff had three severe medically determinable impairments: fibromyalgia; psychotic disorder, not otherwise specified; and bipolar disorder. Id. At step three, the ALJ determined that the plaintiff's medically determinable impairments did not meet or equal the Listings. Id.
At step four the ALJ determined the plaintiff no longer has the residual functional capacity (RFC) to perform her work as a customer service representative. TR 22. The ALJ determined that based upon the objective medical evidence in the record and despite the plaintiff's medically determinable impairments, the plaintiff has the RFC to occasionally lift and carry twenty pounds; frequently lift and carry ten pounds; sit and stand, each for a total of six hours out of an eight-hour workday, with normal breaks; and periodically alternate sifting and standing to relieve discomfort. TR 21. The ALJ also determined that the plaintiff must avoid stressful work environments with frequent changes in the work setting. Id. Further, the ALJ found that the plaintiff is moderately limited in completing a normal workday and workweek without interruptions from psychologically based symptoms; performing at a consistent pace without rest periods; and maintaining attention and concentration for extended periods. TR 21-22.
At step five, the ALJ determined that notwithstanding the non-exertional limitations resulting from the plaintiff's medically determinable impairments, the plaintiff had the RFC to perform those sedentary and light occupations which the VE described in the answers to the ALJ's interrogatories and which exist in the regional and national economies in significant numbers. TR 24.
IV. Legal Standard
When reviewing the decision not to award disability benefits, the district court does not act as a fact finder or substitute its judgment for the judgment of the ALJ or the Commissioner of the Social Security Administration. Bates v. Chater, 54 F.3d 529, 532 (8th Cir. 1995). Rather, the district court will affirm the Commissioner's decision to deny benefits if it is supported by substantial evidence in the record as a whole. Eback v. Chater, 94 F.3d 410, 411 (8th Cir. 1996). "Substantial evidence is that which a reasonable mind would find as adequate to support the ALJ's decision." Brown v. Chater, 87 F.3d 963, 964 (8th Cir. 1996) ( citing Baumgarten v. Chater, 75 F.3d 366, 368 (8th Cir. 1996)). In determining whether the evidence in the record is substantial, the court must consider "evidence that detracts from the Commissioner's decision as well as evidence that supports it." Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999). If the record contains substantial evidence supporting the Commissioner's decision, the court may not reverse the outcome, or because [the court] would have decided the case differently." Mckinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000) (citations omitted). The court may, however, "reverse the administrative determination on the ground of unreasonableness." Bradley v. Bowen, 660 F. Supp. 276, 279 (W.D. Ark. 1987) ( citing Gavin v. Heckler, 811 F.2d 1195, 1199-1201 (8th Cir. 1987), and Deuter v. Schweiker, 568 F. Supp. 1414 (N.D. Ill. 1983)).
V. Discussion
Waiver of Appearance. The Act provides that a claimant must have an opportunity to appear personally at a hearing before a claim for disability benefits can be denied. 42 U.S.C. § 405(b). A claimant may waive personal appearance with a voluntary and knowing waiver. Stoner v. Secretary of Health and Human Servs, 837 F.2d 759, 761 (6th Cir. 1981). The applicable Social Security Ruling states that a person filing a request for a hearing needs
a thorough explanation of the hearing procedure. The individual should fully understand . . . her rights to appear personally before the presiding officer and present evidence, to introduce witnesses and oral or written arguments, and to be represented by an attorney or other person of . . . her choice. The individual must also be advised of the value of personal appearance at a hearing. It should be made clear that, in some cases, additional evidence obtained at the hearing, particularly through personal appearance and/or oral testimony, may be essential to the proper evaluation of the factors at issue.
Soc. Sec. R. 79-19.
On December 11, 1997, the plaintiff signed a waiver of personal appearance in which she stated she not appear before the ALJ in person "because I don't feel my appearance will make a difference in the dec TR 54. On January 5, 1998, an ALJ in the Social Security Administration's Office of Hearings and Appeal the plaintiff a letter acknowledging her waiver and describing what a hearing held before an ALJ would be I sum, "not a highly formal proceeding." TR 58. The letter also explained the function of the ALJ and the pla right to be represented by a lawyer or other person. TR 58-59.
The plaintiff now contends that the waiver form and the letter were not sufficient to meet the require of Ruling 79-19, since the ALJ should have known from the record that the plaintiff's circumstances made written contact inadequate. The record indicates that stress is an aggravating factor to both her physic mental conditions. See TR 122, 46, 56, 183, 200, 338. The plaintiff argues that given her pro se statu physical danger to her of any stress, and her risk of another psychotic episode, the ALJ should have known the plaintiff's waiver was not voluntary and knowing, but instead "based on her fear of exacerbating fibro pain and her need to avoid the physical and mental pain of appearing at an unfamiliar and potentially confr proceeding." Plaintiff's Brief at 14.
In most circumstances, the written waiver form together with the ALJ's letter would meet the requirements of Ruling 79-19. The question here, however, is whether the "`surrounding circumstances suggest another interpretation,' such as that the waiver was not knowing or intelligent." Stiver v. Shalala, 879 F. Supp. at 1021 ( quoting Madden v. Heckler, 1986 WL 2118, *1 (N.D. Ill. 1986)). In Stiver the plaintiff lived in Sutherland, Nebraska. He had a painful back problem for which he had two surgeries. He waived his right to hearing because a non-lawyer representative wrongly advised him that he could have a hearing only if he made the more than 200 mile car trip from his home in western Nebraska to Omaha or Lincoln. The district court found that under these circumstances, the plaintiff's waiver of hearing was not knowing and voluntary because it was induced by his fear, based on misinformation from his non-lawyer representative, of having to make the long, painful trip. Id. at 1025. The court also found that the plaintiff was prejudiced by the waiver because the ALJ's decision to deny benefits focused on the plaintiff's lack of credibility with regard to disabling pain. "Where disabling pain is a significant issue at a social security hearing, `it is particularly important for the ALJ to be able to make observations of claimant and to question the claimant directly.'" Id. ( quoting Stoner v. Secretary of Health and Human Sevrs., 837 F.2d at 761). Since the ALJ did not have an opportunity to observe the plaintiff and question him about his pain, and since the plaintiff did not have the opportunity to convince the ALJ about the severity of his pain, the district court remanded the case for further proceedings. Id.
Here, the plaintiff also would likely not have waived a hearing had she known that her credibility about the severity of her pain would be the focus of the ALJ's subsequent written decision. The letter that the plaintiff received from the ALJ about the waiver of appearance states that in reaching a decision, the ALJ "will consider his observations at the hearing as well as the testimony given as additional evidence to be weighed." TR 58. It does not, however, tell a claimant what negative consequences are possible when the claimant does not personally appear, particularly where, as here, the plaintiff's credibility about pain is the ultimate issue. Accordingly, based on Stiver this case must be remanded for further proceedings. While the plaintiff cannot be compelled to appear before the ALJ, she must at least be given the opportunity to waive the hearing with full knowledge of the consequences of that decision.
Plaintiff's Credibility. The ALJ found that the "documentary record fails to substantiate [the plaintiff's] allegations of disabling pain and inability to cope with stress." TR 19. The ALJ also found that the plaintiff's "allegations, insofar as they pertained to the inability to perform virtually any type of work activity on a sustained basis, were not credible." TR 21. The plaintiff now claims that the ALJ's credibility determinations are in error because they fail: 1) to consider the plaintiff's good work history; 2) to address the plaintiff's attempts to return to work and to accommodate her physical complaints; 3) to include corroborative medical evidence; and 4) to give proper weight to the statements made by the plaintiff's mother.
First, the plaintiff contends that the ALJ was not justified in ignoring the plaintiff's sixteen years of employment with the same employer, since in a different situation, the ALJ would have been obliged to consider a spotty or poor work history. See, e.g., Stephens v. Shalala, 46 F.3d 37, 39 (8th Cir. 1995) (claimant's testimony not credible given, inter alia, erratic work history). While an ALJ is not bound to consider and discuss directly a claimant's good work history, a solid work history certainly should be a factor operating in a claimant's favor when the ALJ makes a credibility determination. The ALJ must give "full consideration to all of the evidence presented relating to subjective complaints, including the claimant's prior work record . . . ." Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). While "[c]redibility findings are for the ALJ to make in the first instance," Smith v. Heckler, 760 F.2d 184, 187 (8th Cir. 1985), the ALJ here does not appear to have assigned any positive weight to the plaintiff's steady, responsible employment record.
Second, and in a related vein, the plaintiff contends that the ALJ did not give her sufficient credit for attempting to find a way to work after the onset of her fibromyalgia symptoms. As the record demonstrates, the plaintiff and her employer attempted to deal with the plaintiff's symptoms by adjusting her work station to make it more ergonomic, to no avail. The plaintiff also attempted a "work hardening" program, trying to gradually increase her endurance from a few hours to a full eight-hour day, again to no avail. The defendant suggests that the plaintiff's attempts to return to work "discredit her subjective complaints of pain in that they show that Plaintiff believed herself capable of working during the time she now claims she is disabled." Defendant's Brief at 13. This disturbing cynical comment denigrates the plaintiff's honest attempts to deal with a life-changing illness that made it impossible for her to do the job she had done for sixteen years. The defendant further suggests that the plaintiff's decision to seek vocational rehabilitation to learn a new trade which she could do at her own pace from her own home, at a time she was claiming disability, "is inconsistent with claims of disabling pain and is perhaps indicative of secondary motivation in seeking benefits because of failure in the job market." Id. Nothing in the record supports this interpretation of the plaintiff's motivation in seeking benefits or vocational rehabilitation. Again, suggesting that the plaintiff harbors some ulterior motive in seeking disability benefits when the record offers no corroborative evidence impugns the plaintiff's attempts to cope with her "new reality." TR 144. The plaintiff should not be penalized or libeled for trying to put her life back together.
Third, the plaintiff contends that the ALJ ignored medical evidence corroborating her claims of disabling pain and inability to cope with stress, focusing instead on medical evidence, primarily from consultative physicians, that minimizes the plaintiff's condition. The corroborating medical evidence to which the plaintiff points includes Dr. Aguila's repeated but unsuccessful attempts over a two-year period to find a treatment for the plaintiff's pain, TR 220-253, 339-343; Dr. Kenik's prescriptions for the anti-depressants Elavil and Zoloft to relieve the psychological component of the plaintiff's complaints and for amitriptyline to allow the plaintiff to sleep, TR 262-281, 337; Dr. Kenik's orders limiting and restricting the plaintiff's work, including an order regarding the plaintiff's need to rest during the day, TR 267; the worker's compensation award the plaintiff received in 1995 for repetitive use injury that caused bilateral wrist and upper back pain, TR 78; and Dr. Faryna's written opinions regarding the role of stress in exacerbating the plaintiff's symptoms and in limiting her ability to compete in the workplace, TR 200, 338, 363.
The ALJ acknowledged that "the record of current medical treatment is somewhat sparse." TR 20. That being the case, it is not clear why the ALJ selected certain medical evidence that supported the ruling, while rejecting other substantial medical evidence from the plaintiff's treating physicians that, while it may not have completely established the plaintiff's disability, at least offered support of her claims of chronic, disabling pain and inability to cope with stress. The ALJ may not "search out any and all findings which support a denial of benefits and disregard those which do not." Johnson v. Sullivan, 740 F. Supp. 627, 630 (E.D. Ark. 1990).
The ALJ stated that the plaintiff was not credible, in part, because of a lack of objective medical evidence, but the ALJ neglected to weigh into the determination the evidence favoring the plaintiff from her treating physicians. "[A] treating physician's opinion should be accorded substantial weight. A consulting physician's opinion as to a patient he has seen only once, in contrast, `does not constitute "substantial evidence'" . . ., especially when contradicted by the evaluation of the claimant's treating physician.'" Onstead v. Sullivan, 962 F.2d 803, 805 (8th Cir. 1992) (citations omitted). Moreover, a treating physician's opinion may not be discounted if "supported by medically acceptable clinical or diagnostic data." Wilson v. Chater, 76 F.3d 238, 241 (8th Cir. 1996) ( citing Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994)). With such a difference of opinion among the treating specialists and consultative physicians' opinions — the plaintiff's treating specialists diagnosing her with fibromyalgia and psychotic disorder and the consultative physicians essentially finding neither — then the ALJ hardly had current, substantial evidence to determine that the plaintiff's subjective claims of pain were not credible.
Finally, the plaintiff contends that the ALJ erred in discounting the written statement submitted by the plaintiff's mother on the grounds that 1) Ms. Hughes might have a "pecuniary interest in the outcome of her daughter's application" for benefits, and 2) Ms. Hughes merely "reiterated her daughter's allegations of total disability, which lack credibility for the reasons noted above." TR 21. The ALJ did not clarify what pecuniary interest Ms. Hughes might have in the plaintiff's award of benefits, and I cannot find in the record any evidence to justify the ALJ's statement. While it is true that the plaintiff wrote that her mother "had lived with me throughout this ordeal," TR 99, her mother indicated, however, that she telephoned the plaintiff at least once a day and saw the plaintiff on average three days a week, TR 139. Ms. Hughes would hardly have made these statements if she and the plaintiff lived together in the same house. Neither Ms. Hughes nor the plaintiff anywhere indicated that Ms. Hughes has assumed any financial responsibility for the plaintiff. Nor does Ms. Hughes' statement duplicate or conflict with the plaintiff's statements. Rather, her statement shows how a concerned third party perceived the effect of the plaintiff's illness in her day-to-day life and in the lives of her children.
Based on these weaknesses in the ALJ's credibility determination, this case must be remanded for a full and fair hearing.
State of the Record. The plaintiff also contends that the ALJ failed to develop a full and complete record, particularly in view of the plaintiff's pro se status and her waiver of appearance. The ALJ made the decision to deny benefits nearly a year after the ALJ made her only two requests for additional records and nearly a year after Dr. Gutnik performed his consultative examination. The plaintiff argues that in addition to lacking current medical information about her condition, the ALJ and VE also lacked information that would have been available from Vocation Rehabilitation Services about the significant limitations plaintiff faced in attempting to return to work and the services for which she was eligible.
According to the plaintiff, the ALJ requested two additional months of treatment records from Dr. Aguila (up to September 3 1997) and Dr. Kenik (up to November 14, 1997). Plaintiff's Brief at 23. The ALJ's decision is dated September 16, 1998. TR 26.
According to the only Vocational Rehabilitation document in the record, the plaintiff had "serious" functional limitations in interpersonal skills (exhibits emotional behaviors); mobility (significantly restricted in distance she can safely move); work skills (unable to perform essential work skills); and work limitations (unable to sustain standing or sitting position for eight-hour workday; unable to sustain consistent physical or mental work effort for eight-hour workday, five day workweek, or fifty-two week year). These limitations put the plaintiff in Priority Group 1 for services. These services included assessment, counseling, job placement and followup, vocational training, and — significantly — "physical and mental restoration." TR 202.
While the defendant is not expected to develop a claimant's whole case, Thompson v. Califano, 556 F.2d 616, 618 (1st Cir. 1977), the defendant is nevertheless charged with making "`an investigation that is not wholly inadequate under the circumstances,'" Battles v. Shalala, 36 F.3d 43, 45 (8th Cir. 1994) ( quoting Miranda v. Secretary of Health, Educ. Welfare, 514 F.2d 996, 998 (1st Cir. 1975)). "[T]his duty is enhanced when the claimant is not represented by counsel." Cox v. Apfel, 160 F.3d 1203, 1209 (8th Cir. 1998) ( citing Mitchell v. Shalala, 25 F.3d 712, 714 (8th Cir. 1994)). Here, I find that the ALJ failed to fully and fairly develop the record, particularly in view of the plaintiff's pro se status, the nature of her psychiatric diagnosis, and her allegedly voluntary waiver of appearance. By failing to obtain more current medical and psychiatric information about the plaintiff's conditions or to take advantage of relevant information about the plaintiff from Vocational Rehabilitation Services, the ALJ made the decision to deny benefits on an incomplete record. The inadequacies in the record can certainly be cured on remand.
Hypothetical Questions. Finally, the plaintiff contends that the ALJ improperly concluded, based on the VE's testimony, that the plaintiff could perform unskilled receptionist and cashier jobs at the light and sedentary levels. The ALJ reached this allegedly erroneous conclusion because the hypothetical questions posed to the VE in interrogatories failed to include 1) the limitations Dr. Kenik imposed, TR 265; 2) Dr. Faryna's opinion that the plaintiff's mood disturbance made it difficult for her to handle any stress and that stress put her at risk for another psychotic episode, TR 338; and 3) the plaintiff's functional limitations as assessed by Vocational Rehabilitation Services, TR 202. In addition, the VE was told that any job he identified could permit periodically alternate sitting and standing to relieve discomfort, TR 165, but the VE was not told that the plaintiff had previously attempted — unsuccessfully — to deal with the fibromyalgia pain by alternating sitting and standing. Finally, the plaintiff faults the ALJ's instruction to the VE to consider the period between March 1996 and the date he prepared his answers, July 28, 1998, since the ALJ had no medical evidence about the plaintiff after 1997. The plaintiff believes that had the VE had this additional information, he would have formed a different opinion about the plaintiff's RFC.
Supra, at 5.
The hypothetical questions are not quite as imprecise as the plaintiff contends, at least with respect to the limitations found in Dr. Kenik's medical report. Dr. Kenik limited the plaintiff's ability to do repetitive activities, especially with her arms extended; the ALJ told the VE in the first hypothetical to assume an individual who should "avoid having her arms outstretched in front of her or extended overhead for repetitive or protracted periods." TR 165. Dr. Kenik also limited the plaintiff's ability to do repetitive standing or walking and detailed her need for rest periods throughout the day; the ALJ told the VE in the first hypothetical to assume an individual who was able to stand and/or walk with normal breaks for a total of about two hours in an eight-hour workday, but should avoid standing for protracted periods of time; and is able to sit with normal breaks for a total of about six hours in an eight-hour workday. Further, the ALJ told the VE in the second hypothetical to assume an individual who is able to stand or sit with normal breaks for six hours out of an eight-hour workday provided she has the opportunity to periodically alternate sitting and standing to relieve discomfort. I find that these hypotheticals include the primary limitations found in Dr. Kenik's report.
The ALJ was less precise in including the limitations listed in the Vocational Rehabilitation Services report, TR 202. The hypothetical questions pulled elements of the work tolerance limitations and part of the mobility limitation, but they did not mention or include the work skills or interpersonal skills limitations.
Likewise, the ALJ's hypothetical questions do not convey the full flavor of Dr. Faryna's evaluation found in her April 1998 letter to the ALJ, TR 338. Dr. Faryna wrote that with medication and treatment, the plaintiff had done "relatively well" since her May 1996 psychotic episode, but that her prognosis was "guarded." Id. The plaintiff continued to experience periodic depression and found it "very difficult" to handle "any stress." Id. The plaintiff also continued "to be prone to experience mood disturbance and is at risk of having another psychotic episode if exposed to stressful situations." Id. In contrast, and apparently relying on the consultative physician's opinion, the ALJ told the VE in the first and second hypothetical to assume an individual who should
avoid stressful work environments with frequent changes in work settings; has a moderate limitation in ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without rest periods; and a moderate limitation in ability to maintain attention and concentration for extended periods.
TR 165. The plaintiff contends that if the VE had been made aware that Dr. Faryna believed that any stress might expose the plaintiff to the risk of another psychotic break, he might have eliminated many or all cashier or receptionist jobs. While this hypothetical implicates part of the Vocational Rehabilitation Services work tolerance limitation, I find that it understates the significant limitations in Dr. Faryna's opinions.
In this circuit, a high degree of accuracy in the ALJ's questions to a VE is expected. "[I]nsofar as a claimant's impairments and allegations of pain are concerned, in order for the testimony of a vocational expert to qualify as substantial evidence, the hypothetical question posed to the expert must precisely describe the claimant's condition." Hogg v. Shalala, 45 F.3d 276, 279 (8th Cir. 1995). Given the divergent medical opinions found in the record, forming truly accurate questions for the VE may have been nearly impossible. Since this matter is being remanded on other grounds, however, the question of whether the ALJ improperly relied on the VE's expert testimony need not be resolved at this time. Any omissions in the ALJ's hypothetical questions can be remedied on remand.
VI. Conclusion
The defendant's decision is not supported by substantial evidence on the record as a whole. This matter is therefore remanded to allow supplementation of the medical record with current treatment information, to provide the plaintiff with an opportunity to appear personally before the ALJ for a full and fair hearing if she so chooses, and to request the ALJ to make written credibility determinations consistent with this opinion.
Judgment here triggers the running of the time in which to file an application for attorney's fees under 28 U.S.C. § 2412(d)(1)(B) (Equal Access to Justice Act). See Shalala v. Schaefer, 509 U.S. 292 (1993).
IT IS THEREFORE ORDERED:
1. The plaintiff's motion for summary judgment, Filing No. 13, is granted;
2. Judgment is hereby entered for the plaintiff and against the defendant;
3. This matter is remanded to the defendant for further proceedings in accordance with this opinion; and
4. This judgment triggers the running of the time in which to file an application for attorney's fees under 28 U.S.C. § 2412(d)(1)(B) (Equal Access to Justice Act).