Opinion
NO. 1:01-CV-249
February 11, 2003
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case is referred to the undersigned United States Magistrate Judge for review, hearing if necessary, and submission of a report with recommended findings of fact and conclusions of law.
See 28 U.S.C. § 636(b)(1)(B) (2001) and Local Rules for the Assignment of Duties to United States Magistrate Judges.
I. Nature of the Case
Plaintiff seeks judicial review of the Commissioner of Social Security Administration's final determination denying plaintiff's application for Social Security disability benefits. The court has jurisdiction pursuant to 42 U.S.C. § 405(g) (2001).II. Proceedings
Plaintiff applied for disability insurance benefits on August 4, 1999, alleging an onset of disability beginning May 26, 1998. Tr. 48-50. In August, 1996, plaintiff fell from a scaffold while at work and sustained injuries to his left wrist and left knee. He claims disability due to complications resulting from those injuries. Tr. 63. Plaintiff also claims back pain, resulting from two deteriorating disks, as another disabling impairment. Tr. 106.After administrative denial of his claim initially and on reconsideration, he requested and was granted a hearing before an administrative law judge ("ALJ"). That hearing was conducted on August 10, 2000, before ALJ Harry L. Williams, Jr. Judge Williams issued a decision denying benefits on September 19, 2000.
Following the administrative hearing, plaintiff requested review of the ALJ's decision by the Appeals Council. In conjunction with that petition, plaintiff also submitted additional medical evidence consisting of a "Medical Assessment of Ability to Do Work-Related Activities" prepared and signed by plaintiff's treating physician (Tr. 248-53).
On April 3, 2001, the Appeals Council denied plaintiff's request for review (Tr. 5-7). Thereafter, plaintiff timely filed the instant appeal in federal court on April 23, 2001.
III. Judicial Review
Judicial review is limited. The court's abbreviated role is to determine whether (a) the Commissioner applied proper legal standards and (b) the decision is supported by substantial evidence. See Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).
Substantial evidence is more than a scintilla, but less than a preponderance, Anthony, 954 F.2d at 292; it requires evidence relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1427 (1971); Marcello v. Bowen, 803 F.2d 851, 853 (5th Cir. 1986) (citing Jones v. Heckler, 702 F.2d 616, 620 (5th Cir. 1983).
To determine whether substantial evidence exists to support the ALJ's findings, the entire record must be scrutinized carefully. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. denied 514 U.S. 1120, 115 S.Ct. 1984 (1995); Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983). The court in reviewing the record may not, however, reweigh the evidence or review the ALJ's decision de novo. Haywood v. Sullivan, 888 F.2d 1462, 1466 (5th Cir. 1989); Neal v. Brown, 829 F.2d 528, 530 (5th Cir. 1987). Rather, it is for the Commissioner to weigh evidence and resolve conflicts. See Anthony, 954 F.2d at 295; Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
If proper principles of law were applied, and if the Commissioner's decision is supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co. of New York v. National Labor Relations Board, et al., 305 U.S. 197, 230, 59 S.Ct. 206, 217 (1938)); see also, 42 U.S.C. § 405(g) (2001).
By local orders of the court, complaints seeking judicial review of administrative decisions denying applications for social security benefits are treated as appeals. The party seeking review is required to specify alleged points of error, and to submit a brief containing legal arguments directed to those points. The Commissioner is ordered to file a brief in response. The court limits the scope of its judicial review to the points argued in the briefs.
See "Notice to Parties in Social Security Cases," Docket No. 9.
IV. Eligibility for Disability Insurance Benefits
To qualify for disability insurance benefits, a claimant must meet the requirements set forth in the Social Security Act ("Act"). See 42 U.S.C. § 423(a) (2001). That is, the claimant must be under age 65, file an application for such benefits, and be under a disability as defined by the Act. See 42 U.S.C. § 416(I), 423(a) (2001). Those claiming disability insurance benefits under the Act have the burden of showing the existence of a disability. Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir. 1979), cert. denied, 444 U.S. 952, 100 S.Ct. 428 (1979); Rhynes v. Califano, 586 F.2d 388 (5th Cir. 1978); Kirkland v. Weinberger, 480 F.2d 46 (5th Cir.), cert. denied, 414 U.S. 913, 94 S.Ct. 255 (1973).
The Act defines a disability as the "inability 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 12 months." 42 U.S.C. § 423(d)(1)(A) (2001). A physical or mental impairment is one which "results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3) (2001). A claimant is disabled "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A) (2001).
Establishment of a disability is thus a dual process. First, the claimant must prove that he suffers from a medically determinable impairment. 42 U.S.C. § 416(I)(1), 423(d)(1)(A) (2001). Second, the claimant must prove that his impairment or combination of impairments renders him unable to engage either in the work he previously performed or other substantial gainful employment that exists in the national economy. 42 U.S.C. § 416(I)(1), 423(d)(2) (2001).
V. Sequential Evaluation Process
The law requires, in every case, that the Commissioner determine whether the claimant has a disability. See Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952 (1983). The Commissioner utilizes a five-step sequential evaluation analysis to aid in determining when claimants are disabled. If a claimant is found not to be disabled at any step, the remaining steps are not considered. 20 C.F.R. § 404.1520 (2002). This procedure has judicial approval as a fair and just way for determining disability applications in conformity with the Social Security Act. See Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 2297 (1987) (citing Heckler v. Campbell, 461 U.S. at 461, 103 S.Ct. at 1954) (The use of the sequential evaluation process "contribute[s] to the uniformity and efficiency of disability determinations").
The five steps — with explanatory parenthetical commentary — generally are as follows:
The Commissioner ascertains whether the applicant is currently engaging in substantial gainful activity. (If so, a finding of non-disability is entered and the inquiry ends.)
The Commissioner determines if the applicant's impairment or combination of impairments is severe, that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities. (If not, the inquiry ends and a finding of non-disability is entered.)
The Commissioner determines whether the severe impairment equals or exceeds those in the Listing of Impairments, 20 C.F.R. Subpt. P, Appendix 1 ("the Listings"). (If so, disability is presumed and benefits are awarded.)
The Commissioner determines whether the impairment prevents the individual from engaging in his regular previous employment. (If so, a prima facie case of disability is established and the burden of going forward (to the fifth step) shifts to the Commissioner. See Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987)).
The Commissioner determines whether other work exists in the national economy which the applicant can perform. (If the Commissioner establishes that an applicant can perform alternative employment, the burden shifts back to the applicant to show he cannot perform the alternative labor. See Id.; Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986); 20 C.F.R. § 404.1520(a)-(f) (2002)).
In conjunction with steps four and five determinations, the Commissioner utilizes a residual functional capacity ("RFC") assessment. That is, the Commissioner decides whether the applicant, notwithstanding severe impairment, has the physical and mental ability to perform activities generally required by competitive, remunerative work. See 20 C.F.R. § 404.1545 (2002); Soc. Sec. Ruling 96-8p, 61 F.R. 34474 (July 2, 1996). The Commissioner assesses the applicant's physical, mental, and sensory abilities, evaluates how they apply to the applicant's work-related functioning, and finally considers whether the applicant can sustain work-related activities in a work setting on a regular and continuing basis. Id. Thereafter, the Commissioner determines if claimant has the physical and mental abilities to perform past relevant work. See Chaparro, 815 F.2d at 1010. If the applicant's RFC meets or exceeds the requirements of regular previous employment, the disability claim is denied. See 20 C.F.R. § 404.1561 (2002). If not, however, the inquiry proceeds to step 5 where the Commissioner has the burden to show that the applicant can do work as it is generally performed in the national economy. See Chaparro, 815 F.2d at 1010; 20 C.F.R. § 404.1566 (2002).
Residual functional capacity is defined as "what you can still do despite your limitations." 20 C.F.R. § 404.1545(a) (2002). It has three components: physical abilities, mental abilities, and other abilities affected by impairments. See 20 C.F.R. § 404.1545(a) (2002).
VI. ALJ's Decision
ALJ Williams issued a written opinion wherein he concluded that plaintiff is not disabled under governing rules. Following the sequential analysis framework, ALJ Williams found that plaintiff carried his evidentiary burden through Step 4, and proved that he suffers from severe impairments which prevent him from engaging in his past relevant work. However, ALJ Williams concluded at Step 5 that plaintiff is capable of performing work that exists in significant numbers in the national economy. Specifically — and relying on expert vocational testimony — ALJ Williams concluded that plaintiff can perform certain jobs rated as light work: "returned case inspector," "label machine operator," and "label coder." Tr. 19. ALJ Williams therefore concluded that plaintiff is not disabled and therefore is ineligible for benefits.
ALJ Williams discussed his findings at length in a 9 page decision. Page 8 of that decision is omitted from the transcript supplied to the court. ALJ Williams's findings and conclusions are clearly enunciated in the remaining pages, and the court presumes that the missing page 8 was devoted simply to enumerating and re-stating them again in summary form.
Remand is not required automatically when the transcript before the court, although incomplete, is nevertheless sufficient to permit meaningful review. See Harrison v. PPG Industries, Inc., 446 U.S. 578, 594, 100 S.Ct. 1889 (1980); Torres v. Shalala, 48 F.3d 887 (5th Cir. 1995) (remand need not be ordered when evidence is missing but there is still ample evidence from which a determination may be made); Brady v. Apfel, 41 F. Supp.2d 659, 667-8 (E.D.Tex. 1999) (remand not required where missing documents are immaterial to ALJ's decision).
Here, neither party argues that the missing page is crucial, or that remand is appropriate because of it. Moreover, there is no need for remand to secure the missing page because the ALJ's findings and reasoning can be discerned unambiguously from the remaining text of his decision. Thus, meaningful judicial review is not hindered.
"Light work involves lifting no more than twenty pounds at a time with frequent lifting or carrying of objects weighing up to ten 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. To be considered capable of performing a full or wide range of light work, [plaintiff] must have the ability to do substantially all of these activities." 20 C.F.R. § 404.1567(b), 416.967(b) (2002).
Critical to this action is ALJ Williams's residual functional capacity assessment. Succinctly stated, that assessment was that plaintiff retains residual functional capacity for "less than the full range of light work but more than sedentary work." Tr. 18. Stated another way, ALJ Williams determined that plaintiff is capable of more than sedentary exertion, but less than the full range of light work. Id. Specifically, he found that plaintiff can lift and carry up to 20 pounds occasionally and up to 10 pounds frequently, and sit through a normal work day with the option to sit or stand at will. He further determined that plaintiff can climb stairs, stoop and kneel, but may never climb ropes, ladders, or scaffolding, and he may not crawl. He also determined that plaintiff can use his left hand as a guide only, and he should have only minimal contact with the public. Tr. 16-17.
"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. . . . Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." 20 C.F.R. § 404.1567(a) (2002).
In reaching this conclusion, ALJ Williams specifically rejected a contrary opinion of plaintiff's treating physician, Carl J. Beaudry, M.D., who considers plaintiff totally and permanently disabled. ALJ Williams's rejected this opinion because Dr. Beaudry did not provide an explicit or detailed opinion regarding plaintiff's residual functional capacity. ALJ Williams stated his reasons as follows:
Carl J. Beaudry, M.D., claimant's treating physician, has not made a statement . . . of claimant's residual functional capacity using the analysis of claimant's ability to lift, to carry, to stand, to walk or to sit, and the other issues for deciding residual functional capacity. Dr. Beaudry has written that claimant is totally and permanently disabled from returning to his regular duties, and that claimant has been advised that no modified or light duties are available where claimant is, or was, employed. . . . No other doctor who has treated or examined claimant for treatment has made any statement as to his residual functional capacity.
Tr. 16 (italics added).
VII. Points of Error
Plaintiff's points of alleged error are in a lengthy "Statement of the Issues" reprinted verbatim in the note. After considering these issues, and the parties' arguments, the undersigned concludes that the court need address only two that are interrelated. For analytical convenience, these are rephrased as follows:
Plaintiff's brief recites the points as follows:
A. Substantial evidence does not support the decision because:
1. The treating physician rated plaintiff's abilities at no more than a sedentary work capacity, and the vocational expert testified that the sedentary work range would be "significantly destroyed."
2. Substantial evidence does not support the Commissioner's finding that plaintiff is capable of doing light work, and therefore the medical vocational guidelines were improperly applied in deciding plaintiff's claim.
3. The second hypothetical question posed to the vocational expert did not contain all of the limitations shown by the evidence and testimony, and therefore the vocational expert's testimony in response to that question is not substantial evidence to support the denial of the plaintiff's claim.
B. The Commissioner rejected the treating doctor's opinions without giving reasons for rejecting them.
C. Good cause for remand exists because:
1. additional, relevant medical evidence demonstrating significant, disabling pain and physical restrictions has not been considered by the Administrative Law Judge.
2. the regulations were incorrectly applied to the decision in plaintiff's claim.
Pl.'s Br. at "Statement of the Issues."
1. The Commissioner did not apply proper principles of law in that she failed to afford great weight to plaintiff's treating physician's opinion; and
2. The Commissioner's decision is not supported by substantial evidence because it is not based on all of the evidence.
VIII. Discussion and Analysis
Both points focus on the "Medical Assessment of Ability to Do Work-Related Activities" prepared and signed by plaintiff's treating physician, and submitted for consideration after ALJ Williams issued his decision. This assessment, if credible, cured the deficiency noted by ALJ Williams. That is, instead of constituting a conclusory, ultimate-issue opinion ("totally and permanently disabled"), Dr. Beaudry engaged in an item-by-item analysis of claimant's ability to lift, carry, stand, walk or sit, and other issues relevant to assessing a person's residual functional capacity. Dr. Beaudry concluded that plaintiff cannot perform any light work or the full range of sedentary work.Dr. Beaudry's post-hearing residual functional capacity assessment differed significantly from that of ALJ Williams. The difference is especially significant when considered in context of expert vocational testimony given at the administrative hearing. Specifically, Phillip Roddy, Certified Rehabilitation Counselor, testified as a vocational expert (VE). VE Roddy, accepting ALJ Williams's hypothesis that plaintiff has residual functional capacity for a limited range of light work, identified jobs in the light work category that a person of plaintiff's age, education and experience could perform. However, in response to an alternative hypothetical, VE Roddy was unable to identify any jobs which plaintiff could perform at a lower exertional level (sedentary), given his exertional and nonexertional limitations. Tr. 283. Consequently, if Dr. Beaudry's residual functional capacity assessment (i.e., plaintiff can perform work only at the sedentary exertional level) is credited, there is no evidentiary support for the proposition that jobs are available in the national economy that plaintiff can perform.
The Appeals Council received this new evidence and included it in the administrative evidentiary record. However, the Appeals Council did not discuss the new evidence, but rather simply denied plaintiff's request for review without further analytical comment. This omission, plaintiff contends, reveals that the Appeals Council either did not consider the new evidence, or if it did, it failed to provide adequate reasons for rejecting it. In either event, the Commissioner erred.
These two arguments require the court to examine two well-established tenets of law developed specifically in relation to adjudication of claims for Social Security benefits: (1) necessity of considering the entire record, and (2) deference afforded treating physician opinions.
A. Duty to Consider All Evidence 1. Principles of Analysis
The Commissioner's own regulations and rules require claims adjudicators to consider all evidence in a claimant's case when making a disability determination or decision. 20 C.F.R. § 404.1520(a) (2002); Soc. Sec. Ruling 96-7p (1996). Governing circuit case law establishes a similar reguirement. Myers v. Apfel, 238 F.3d 617, 621 (5th Cir. 2001). Thus, the Commissioner must issue decisions based on the record as a whole, and adjudicators are not free to pick and choose only the evidence supporting a particular position. Loza, 219 F.3d 378, 393 (5th Cir. 2000); Switzer v. Heckler, 742 F.2d 382, 385-86 (5th Cir. 1984). Moreover, when the Commissioner fails to take into account all relevant evidence, a reviewing court deems the Commissioner's decision to be unsupported by substantial evidence. Myers, 238 F.3d at 621.
This duty to consider all evidence applies not only to an ALJ at the evidentiary hearing, but also to the Appeals Council, which issues the Commissioner's final decisions. Cf. Carry v. Heckler, 750 F.2d 479, 486 (5th Cir. 1985) (requiring the Appeals Council on remand to consider all evidence of record, including new evidence).
2. Application
The Appeals Council, having elected to receive post-hearing evidence in this case, had a duty to consider and evaluate it, or to recommit the case to ALJ Williams for that purpose. The Appeals Council did not return the case to Judge Williams, and its summary denial of plaintiff's request for review provides no indication that it independently and fairly weighed the new evidence itself. Consequently, the court cannot confidently conclude that all of the evidence was considered. Remand to the Commissioner for further consideration of the new evidence by either the Appeals Counsel or ALJ Williams is appropriate here.
The Appeals Council tersely stated only that"neither [plaintiff's] contentions nor the additional evidence provides a basis for changing the Administrative Law Judge's decision." Tr. 5. The Appeals Council articulated no further reason for rejecting the treating physician's assessment.
B. Deference Due Treating Physician Opinion 1. Principles of Analysis
Common sense suggests that opinions, diagnoses, and medical evidence of a treating physician intimately familiar with a claimant's injuries, treatments, and responses usually constitute the best evidence of the nature and severity of a patient's impairment. Consequently, the Commissioner's regulations and governing circuit precedent both postulate that a treating physician's medical opinion is entitled to great deference. The Commissioner even requires that a treating physician's opinion as to the nature and severity of a patient's impairment be given controlling weight if it is "well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with . . . other substantial evidence." 20 C.F.R. § 404.1527(d)(2) (2002); SSR 96-2p, 61 F.R. 34490, 34491 (July 2, 1996). Likewise, the Fifth Circuit similarly holds that "`ordinarily the opinions, diagnoses, and medical evidence of a treating physician . . . [are] accorded considerable weight in determining disability.'" Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985) (citing Barajas v. Heckler, 738 F.2d 641, 644 (5th Cir. 1984); see also Myers, 238 F.3d at 621 (citing Greenspan, 38 F.3d at 237 (internal citations omitted)); Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000); Leggett v. Chater, 67 F.3d at 566.
Common experience also teaches that treating physicians often are unfamiliar with technical and specific Social Security Act disability definitions. Moreover, human nature is such that an intimate physician-patient relationship may on occasion affect a physician's objectivity. Consequently, the Commissioner's regulations and governing circuit precedent both recognize that treating physicians' opinions on ultimate issues governing entitlement to benefits are not entitled to special significance. Circuit law acknowledges that it remains the sole responsibility of the Commissioner to determine whether a claimant is "disabled" under governing rules, notwithstanding the express and well-established deference afforded treating physician's opinions as to the nature and severity of patients' impairments. See Newton, 209 F.3d at 455; Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990). The Commissioner's regulations reflect this rule even more succinctly:
We will not give any special significance to the source of an opinion on issues reserved to the Commissioner [i.e., administrative findings dispositive of the case such as if the claimant is disabled or unable to work]
See 20 C.F.R. § 416.927(e)(3) (2002).
There remains the vast middle ground of how much weight to afford a treating physician opinion when it is not entitled to controlling weight. Again, governing circuit law and the Commissioner's regulations and rulings are in accord. The Fifth Circuit allows an ALJ to reject or discount the weight of a treating physician's opinion — even with respect to medical issues — when "good cause" is shown. See Myers, 238 F.3d at 621; Newton, 209 F.3d at 455-56; Greenspan, 38 F.3d at 237; Moore, 919 F.2d at 905. Good cause may exist when physician statements are conclusory and brief; when statements are unsupported by medically acceptable clinical, laboratory, or diagnostic techniques; otherwise unsupported by the evidence; or when the treating physician is not credible because (s)he is "leaning over backwards to support the application for disability benefits." Scott, 770 F.2d at 485; see also Myers, 238 F.3d at 621 (citing Greenspan, 38 F.3d at 237); Newton, 209 F.3d at 456.
When an adjudicator does not assign controlling weight to the opinion of the treating physician, regulations require articulation of reasons therefor. 20 C.F.R. § 404.1527(d)(2) (2002); see also Myers, 238 F.3d at 621. Failure to give great weight to the treating physician's opinion absent good cause for rejecting it constitutes disregard of applicable principles of law. Newton, 209 F.3d at 455-6.
2. Application
ALJ Williams had no initial opportunity to consider Dr. Beaudry's detailed residual functional capacity analysis, the "Medical Assessment of Ability to Do Work-Related Activities." Thus, plaintiff can show no error on ALJ Williams's part with respect to weighting the treating physician's opinion. Plaintiff can, however, reasonably complain that the Appeals Council had the post-hearing evidence before it, was therefore required to consider and evaluate it, and was further required to give it great weight absent a showing of good cause.
The Appeals Council did not return the case to Judge Williams for determining what weight to give Dr. Beaudry's detailed, post-hearing residual functional capacity assessment. The Appeals Council did not itself express or purport to show good cause for rejecting Dr. Beaudry's assessment. The final result, therefore, is that the Commissioner has rejected a treating physician's opinion without showing good cause. In such circumstance, the Commissioner has failed to apply proper principles of law.
IX. Other Alleged Errors
Because plaintiff is entitled to remand based on the Commissioner's failure to show good cause for rejecting the treating physician's opinion, or, alternatively, for failing to consider the entire record, it is not necessary to address plaintiff's remaining points of error.
Recommendation
The Commissioner's decision should be reversed and this action remanded for further consideration consistent with the foregoing opinion.
Objections
Within ten (10) days after receipt of the magistrate judge's report, any party may serve and file written objection to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C) (2001).
Failure to file written objections to the proposed findings and recommendation contained in this report within 10 days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings and recommendations.