Opinion
CAUSE NO. 1:02-CV-23
September 24, 2002
MEMORANDUM OF DECISION AND ORDER
I. INTRODUCTION
This matter is before the Court for judicial review of a final decision of the defendant, Commissioner of Social Security ("Commissioner"), denying the application of the plaintiff, Lynn Sunday ("Plaintiff"), for Disability Insurance Benefits ("DIB") and for Supplemental Security Income ("SSI") beginning July 31, 1998.
Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting.
Section 205(g) of the Social Security Act ("the Act") provides, inter alia, "[a]s part of his answer, the [Commissioner] shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the case for a rehearing." It also provides, "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g).
II. THE PROCEDURAL AND FACTUAL BACKGROUND
A. The Procedural Background
On December 23, 1998, the Plaintiff filed an application for DIB and SSI, and he alleges an inability to work beginning July 31, 1998. The Plaintiff's claims were denied initially and upon reconsideration. On May 19, 2000, a hearing was held before the Administrative Law Judge Bryan J. Bernstein ("ALJ"). The Plaintiff was represented by counsel and testified at the hearing. Also testifying were the Plaintiff's son, Ryan Sunday, and Christopher Young, a vocational expert ("VE").
Nearly one year later, on April 25, 2001, the ALJ issued his decision wherein he made the following findings:
1. The claimant met the disability insured status requirements of the Act on July 31, 1998, the date the claimant stated he became unable to work, and has acquired sufficient quarters of coverage to remain insured through at least December 31, 2002.
2. The claimant has not engaged in substantial gainful activity since July 31, 1998.
3. The medical evidence establishes that the claimant has physical residuals from a stroke, an impairment which is severe but which does not meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart p, Regulations No. 4.
4. The claimant's statements concerning his impairment and its impact on his ability to work are not entirely credible. The testimony of Ryan Sunday was credible, but did not establish disability.
5. The claimant has the residual functional capacity to lift and/or carry 20 pounds occasionally. He can walk for five to ten minutes at a time. He cannot perform work requiring fine coordination or repetitive gripping. He cannot work at a closely regimented pace. He needs the option to alternate sitting and standing at will.
6. The claimant is unable to perform his past relevant woik as a maintenance millwright.
7. The claimant is 51 years old, an individual "closely approaching advanced age."
8. The claimant has a high school education.
9. The claimant has skilled work experience but has acquired no transferable work skills.
10. Considering the claimant's age, educational background, and residualfunctional capacity, he is able to make a successful vocational adjustment to work which exists in significant numbers in the national economy. Such work includes employment as a cashier (500 positions) and office helper (600 positions).
12. [sic] The claimant has not been under a disability, as defined in the Social Security Act, at any time through the date of this decision ( 20 C.F.R. § 404.1520(f) and 416.920(f)).
(Tr. at 17-18.)
Based on these findings, the ALJ determined that the Plaintiff was not entitled to DIB or SSI. The Plaintiff requested review by the Appeals Council, which was denied on November 27, 2001, leaving the ALJ's decision as the final decision of the Commissioner. This appeal followed.
The Plaintiff filed his opening brief on July 15, 2002. The Commissioner filed her "Memorandum in Support of the Commissioner's Decision" on August 28, 2002. The Plaintiff replied on September 12, 2002.
B. The Factual Background
The Plaintiff was forty-nine years old in July 1998, the alleged onset date of disability, a "younger individual" as defined in the Act. See 20 C.F.R. § 404.1563(c).
The Plaintiff was fifty-one years old at the date of the hearing, a "person closely approaching advanced age." See 20 C.F.R. § 404.1563(d). In his opinion, the ALJ considered the Plaintiff's age at the time of the hearing in determining whether he could return to past employment.
The Plaintiff has a ninth grade education and has previous work activity as a millwright.
The Plaintiff has received a GED equivalency diploma.
The Plaintiff claims a disability due to residual effects of a prior stroke, an organic mental disorder, and brain atrophy.
Between July 20 and July 31, 1998, the Plaintiff was hospitalized at the Veterans Administration ("VA") Hospital after developing dizzy spells, headaches, nausea, slurred speech, difficulty balancing, ringing in his right ear, and a left facial dmop. (Tr. at 313.) He was admitted to the Intensive Care Unit, and a CT scan of the head showed an old infarct in the carotid nucleus but no new acute infarct. ( Id.) A neurological examination indicated muscle power in both extremities at 5/5, no sensory deficits, and an unsteady gait. (Tr. at 314.) The VA physician initially diagnosed the Plaintiff with ataxia marked by symptoms of vertigo, and possible left cerebrovascular accident. ( Id.) A carotid ultrasound showed findings consistent with 70%-90% stenosis of the origin of the right internal carotid artery, but no "hemodynamically significant stenosis" was present. ( Id.) However, a subsequent MRI scan performed in Indianapolis, showed a hemorrhagic infarct. ( Id.)
An infarct is an area of necrosis resulting from a sudden insufficiency of arterial or venous blood supply. Stedman's Medical Dictionary, 706 (5th L.E.d. 1982) (hereinafter " Stedman's").
Ataxia is the inability to coordinate the muscles in the execution of voluntary movement. Stedman's at 135.
A cerebrovascular accident is the sudden rupture or blockage of a blood vessel within the brain, causing serious bleeding or local obstruction to blood circulation. American Medical Association, Encyclopedia of Medicine 249 (1989) (hereinafter Encyclopedia of Medicine).
On August 3, 1998, a physical therapy note from the VA indicated that the Plaintiff had received seven treatments for balancing/coordination exercises and gait training, and he was able to ambulate independently and perform balance/coordination exercises with 90% accuracy (Tr. at 317.) The physical therapist concluded that the goal of being able to ambulate independently had been met. ( Id.)
On August 24, 1998, a psychological evaluation was performed by Dr. Jay Patel and Diane Thomas at the request of Vocational Rehabilitation. (Tr. at 94-104) He complained of problems with stamina and difficulty with coordination, depression, difficulty sleeping, a lack of motivation, and difficulty concentrating and remembering. (Tr. at 94.) Dr. Patel and Dr. Thomas opined that he demonstrated the cardinal symptoms of depression. (Tr. at 102.) The Plaintiff was diagnosed with alcohol dependence, in early remission, cannabis dependence, in early remission, and dysthymia. (Tr. at 103.) The Plaintiff's Global Assessment of Functioning ("GAF") score during the preceding year was 60. ( Id.)
The essential feature of Dysthymic Disorder is a chronically depressed mood that occurs for most of the days for more days than not for at lest 2 years. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders at 345 (4th ed. 1994) (hereinafter " DSM-IV").
On September 10, 1998, the Plaintiff saw Dr. Sherwin Kepes for another psychological examination at the request of Vocational Rehabilitation. (Tr. at 105-111.) When asked about the presence of a learning disability, the Plaintiff stated that he was never good with spelling and he tended to invert numbers. (Tr. at 106.) Dr. Kepes noted that the Plaintiff's affect was somewhat flat, suggesting some underlying depression. (Tr. at 107.)
Dr. Kepes administered a number of psychological tests. On the WAIS-III, the Plaintiff test results provided a verbal IQ of 88, a performance IQ of 75, and a full scale IQ of 80, which placed him at the lower limit of the low average range and within the borderline range based on DSM-IV criteria. ( Id.) Dr. Kepes also administered the Wechsler Memory Scale-III. (Tr. at 108.) Dr. Kepes opined that the Plaintiff's scores indicated a primary deficit in immediate memory, with an ability "to retain what he is able to encode." ( Id.) Dr. Kepes noted that the Plaintiff's difficulty comes in stages, suggesting that he will need to engage in more repetition as a means of enhancing his general memory function. ( Id.) Dr. Kepes also administered the Wide Range Achievement Test-III ("WRAT-III"). The Plaintiff's scores reflected reading skills at the 8th grade level, spelling skills at the 5th grade level, and arithmetic skills at the 5th grade level. (Tr. at 109.) However, he scored at the 12th grade level on the vocabulary test but with comprehension at the 7th grade level. ( Id.)
Regarding functional occupational limitations, Dr. Kepes opined that the Plaintiff would have difficulties with balance and mobility, and his short term memory would require that he be placed in a reasonably structured environment where the speed of learning is not especially important. (Tr. at 110.) He diagnosed the Plaintiff with Recurrent Major Depressive Disorder, and Mild and Alcohol Dependence in early and full Remission. (Tr. at 111.)
The essential feature of Major Depressive Disorder is a clinical course that is characterized by one or more of Major Depressive Episodes without a history of manic, mixed or Hypomanic Episodes. Mild episodes are characterized by the presence of 5 or 6 depressive symptoms and either mild disability or the capacity to function normally but with substantial or unusual effort. DSM-IV at 339; 376.
On September 16, 1998, the Plaintiff had a CT scan performed on his head which revealed no significant change from an MRI performed 2 months earlier. (Tr. at 230.)
On September 17, 1998, a carotid arteriography revealed approximately 50% stenosis at the origin of the right internal carotid artery with mild narrowing of the precavernous portion of the internal carotid artery (Tr. at 219.) The left common carotid artery and intemal carotid artery was normal. ( Id.)
Between September 29 and October 2, 1998 the Plaintiff was hospitalized at the VA Hospital in Indianapolis because of residual balance problems, right hand numbness and parasthesia, as well has chronic and unrelenting tinnitus and hearing loss in his right ear, which apparently all set in after his stroke. (Tr. at 238-241.) Light-touch, pin-prick, and vibration tests were grossly intact distally in all four extremities. (Tr. at 240.) Strengili was 5/5, but slightly reduced on the right side and muscle stretch reflexes were 1+ throughout. ( Id.) His casual walk showed slight ataxia. ( Id.)
During the Plaintiff;s hospitalization, a CT scan of his head showed evidence of right cerebellar infarct consistent with right PICA distribution and an acute/subacute infarct involving caudate nucleus, as well as evidence of small vessel ischemic disease, and a MRI showed the same lesions. ( Id.) The Plaintiff had no symptoms during hospitalization, and the VA physician opined that symptoms were probably due to Meniere's disease and referred him to the HENT Clinic. (Tr. at 241.)
On October 30, 1998, the Plaintiff was seen for a routime check-up at the VA, and he noted some depression, and worried about his physical condition because of his right-side paralysis. (Tr. at 275.) The Plaintiff reported that he recently began using a cane for balance, and felt as though his dqression had improved since his medicine was increased. (Tr. at 276.) He also reported becoming short of breath after walking eight to ten blocks. ( Id.)
On October 30, 1998, the Plaintiff underwent a general medical examination at the VA by Dr. William Ungemach. (Tr. at 303-306.) The Plaintiff complained that his feet hurt and that he had poor balance, requiring the use of a cane to steady himself. (Tr. at 304.) However, the Plaintiff was able to ambulate in the room without the use of the cane. ( Id.) Dr. Ungemach was unable to locate posterior tibial pulses and dorsalis pedis pulses by palpation, but with the Doppler, the Plaintiff had excellent pulses indicating an absence of significant arterial stenosis in his lower extremities. (Tr. at 305.) Blood pressure in his legs when supined was 170/110 and in his arm it was 120/88. ( Id.) An X-ray of the feet indicated heel spurs bilaterally (Tr. at 307.)
On November 3, 1998, the Plaintiff saw Dr. Rumi A. Germano at the VA hospital. Dr. Germano's examination indicated that the Plaintiff could not walk steadily on the treadmill; thus, he scheduled a persantine thallium test. (Tr. at 270.)
On January 7, 1999, the Plaintiff returned to the VA for a follow up, and it was noted that he had somewhat shaky balance at times. (Tr. at 262.)
On February 17, 1999, the Plaintiff was treated at the VA for complaints of his right great toe and joint being swollen and painful with red skin. (Tr. at 504.) An examination of the first metatarsal joint on the fight foot was red and inflamed and marked by pain. ( Id.) An X-ray revealed nonspecific soft tissue swelling around the first MTP joint with some bunion formation, but gout could not be excluded based on the findings. (Tr. at 375.)
On February 23, 1999, Dr. Michael E. Holton performed a physical consultative disability examination at the request of Social Security. (Tr. at 324-3 27.) Dr. Holton noted that the Plaintiff used a cane on the left side for balance. (Tr. at 324.) The Plaintiff described chronic pain in both feet reportedly secondary to arthritis and heel spurs. ( Id.) The Plaintiff also complained of constant lxIin in the right foot as the result of dysesthesias in both feet. ( Id.) Finally, the Plaintiff complained of memory loss, shortness of breath, and a lack of energy since his stroke. ( Id.) He also described constant tinnitus in his right ear. ( Id.)
Dysesthesia is the impairment of sensation short of anesthesia. Stedman's at 432.
Upon examination Dr. Holton noted right side weakness when the Plaintiff attempted to get in or out of his chair, and on and off the examination table. ( Id.) Dr. Holton also noted right-side hearing loss, since the Plaintiff occasionally required the occasional repetition of words spoken in a conversational voice. (Tr. at 325.) Additional findings revealed that the dorsalis pedis pulses were diminished to three out of four bilaterally, but the radial pulses appeared normal. ( Id.) There were mild trophic changes of the distal lower extremities as well as evidence of poor venous return, some scattered superficial skin breaks, and an ulceration at the right great toe MTP joint. ( Id.) The musculoskeletal evaluation revealed a broad-based occasional lurching gait with weakness favoring the right lower extremity. ( Id.) However, the Plaintiff was able to walk across the room without the cane. ( Id.) Nevertheless, Dr. Holton found that the Plaintiff would likely need the cane for distance walking or walking on uneven surfaces. ( Id.) Dr. Holton observed that the Plaintiff became significantly unstable with weight shifting to the weaker right lower extremity, and for this reason ambulatory maneuvers were not performed due to a concern for the claimant's safety. ( Id.) There was also a mild lagging of the right-sided extremity on active range of motion testing. ( Id.)
Dr. Holton's neurological evaluation showed muscular strength and tone diminished to three out of five in the right lower extremity and four out of five in the right upper extremity. ( Id.) Additionally, there was evidence of right side extremity atrophy, (Tr. at 325-326), deep tendon reflexes were diminished throughout to minus four, (Tr. at 326), and a patchy right hemibody sensory loss was noted on light touch testing. ( Id.) The Plaintiff performed fine finger manipulations with mild bilateral stiffness especially on the right where associated dysmetria was noted. ( Id.) However, he was eventually able to button, zip or pick up a coin with either hand despite increased difficulty in the right hand. ( Id.) Grip strength was diminished to three out of five on the right, but appeared to be normal on the left. ( Id.)
Dysmetria is the condition in which the person is unable to properly judge the range of movement of the limbs. Stedman's at 433.
Dr. Holton opined that the Plaintiff suffered post stroke residual right side sensory and motor loss, degenerative arthritis (presumptive osteoarthritis), hearing loss, chronic obstructive pulmonary disease, depression/post traumatic stress disorder, carotid artery stenosis, venous insufficiency of lower extremities, right foot ulceration with history of chronic right foot pain, and disequilibrium. ( Id.)
On February 26, 1999, the Plaintiff returned to the VA with complaints of continued foot problems, and he was also concerned about the possibility of diabetes. (Tr. at 391.) The assessment/diagnosis was peripheral neuropathy/PVD with a history of CVA. ( Id.)
On March 1, 1999, the Plaintiff saw Dr. Daniel Hauschild for a psychological evaluation at the request of Social Security. (Tr. at 328-339.) During the mental status examination, the Plaintiff was able to repeat five digits forward and five digits backwards, and he could perform simple addition, subtraction, and multiplication. (Tr. at 330.) His affect seemed constricted and mildly depressed, his mood was withdrawn and apathetic, and he described himself as anhedonic. (Tr. at 331.)
Dr. Hauschild noted that the available records indicated that the Plaintiff functioned in the borderline range of intelligence. ( Id.) Additionally, he observed that the Plaintiff did not appear to be capable of managing his own funds, and he stated that gave his money to his sister to handle because he has had difficulty with numbers since his stroke. (Tr. at 332.)
Dr. Hauschild also administered the Weschler Memory Scale-III, and the Plaintiff's General Memory Index score of 81 placed him in the low average range for overall memory functioning. ( Id.) Dr. Hauschild was unable to ascertain whether the Plaintiff's overall level of memory functioning was a loss from a previously higher premorbid level of functioning. ( Id.) However, he indicated that it was consistent with the Plaintiff's most recently assessed level of general intellectual functioning. ( Id.) Dr. Hauschild noted that the possibility of a higher level of premorbid functioning could not be ruled out. ( Id.)
Dr. Hauschild noted differential performances on various types of memory measures demonstrate a number of trends. ( Id.) The Plaintiff performed well within the Average Range on the Working Memory Index which indicated an intact capability to manipulate and organize information held in immediate memory. ( Id.) However, the Plaintiff had scored poorly for Immediate Memory, as evidence by his Borderline Range performance on tasks involving the immediate recall to auditory and visual stimuli. ( Id.) The Plaintiff was able to organize and process small quantities of information normally, but when presented larger amount of information, his capacities were overwhelmed and he performed poorly. ( Id.)
Dr. Hauschild found that these performance deficits suggested difficulty with initial memory storage, and that the Plaintiff's impairment is significant enough to prevent him from acquiring any new learning, even with repeated trials when working with a quantity of information exceeding his working memory. (Tr. at 333.) He found that such a pattern could be caused by chronic alcohol use but also might be due to the Plaintiff's stroke. ( Id.) Finally, Dr. Hauschild noted that relative to the previous testing, the Plaintiff's performance improved on some indexes and worsened on others. ( Id.) Yet there was no consistent trend of improvment or decline, and in light of the inconsistencies between his present and previous cognitive assessments, Dr. Hauschild opined that the interpretations of pattern analysis should be considered speculative at best. ( Id.)
His diagnosis was Major Depressive Disorder, Recurrent Mild; Post-Traumatic Stress Disorder; and Cognitive Disorder NOS. ( Id.)
Cognitive Disorder NOS is the category for disorders marked by cognitive dysfunction presumed to be due to the direct physiological affect of a general medical condition but not meeting the criteria for any specific deliriums, dementia, or amnestic disorders. DSM-IV at 163.
On March 19, 1999, the Plaintiff returned to the VA, and reported feeling much better and had marked improvement in the right foot with proper care. (Tr. at 385.) However, his right foot still had a small area which continued with some erythema. ( Id.)
On April 9, 1999, the Plaintiff went to the VA for a follow-up examination, and the VA physician noted the absence of any edema on his right MTP joint; however, there was a persistent superficial ulcer on it, and the assessment was infection of the right MTP joint. (Tr. at 367.)
On November 9, 1999, Dr. Holton performed a second physical disability examination. (Tr. at 464-467.) The physical examination revealed diminished radial pulses to 3 out of 4 bilaterally. (Tr. at 465.) The dorsalis pedis pulses were absent bilaterally. ( Id.) The posterior tibial pulses were diminished to 1 out of 4. ( Id.) There were marked trophic changes with derimatitias noted in the distal lower extremities. ( Id.)
Dr. Holton's musculoskeletal evaluation revealed a moderately slow and unstable, broad-based gait with antalgic features favoring the right lower extremity. ( Id.) He was able to take a few steps in the examining room without the use of a cane, but he felt the cane was necessary for any distance walking or walking on uneven surfaces since he had moderate to marked instability when walking on the heels and toes particularly with tandem walking. ( Id.) The Plaintiff was very unstable on extension testing of the dorsolumbar spine. ( Id.) Moderate generalized stiffness was noted as well as early bilateral Heberden's nodes. ( Id.)
Dr. Holton's neurological evaluation revealed muscular strength and tone to be diminished to 4 out of 5 in the right upper and right lower extremities. (Tr. at 466.) Dependent reflexes were diminished throughout the extremities to minus 2 except minus 1 right and Patellar reflex and ankle jerks were bilaterally absent. ( Id.) Some sensory light touch testing revealed an essentially hemibody loss differentially on the right. ( Id.) A plantar loss was also demonstrated on the left. ( Id.) The Plaintiff performed fine finger manipulations with moderate difficulty in the right but with a less difficulty on the left. ( Id.) However, he was able to button, zip, or pick up a coin with either hand despite difficulty, which would likely preclude repetitive or precision fine finger manipulations on either side, particularly the right. ( Id.)
On November 5, 1999, Dr. Hauschild performed a second psychological evaluation at the request of Social Security. (Tr. at 454-463.) The Plaintiff reported that he could write checks and perform tasks which required correspondence. (Tr. at 455.) He was able to perform simple addition and subtraction, but he had trouble with multiplication. (Tr. at 456.) A second Weschler Memory Scale-III was given, and Dr. Hauschild found that his present performance was consistent with the last test performed. (Tr. at 458.)
However, Dr. Hauschild noted performance inconsistencies, but stated that they went to attention, concentration, stamina and motivational set during testing. (Tr. at 459.) Dr. Hauschild noted that his attention and concentration appeared to be well supported as his cognitive strengths by his performance across the three assessments. ( Id.) The falling stamina would not serve to explain his inconsistencies as he did better on the later trial than earlier one. ( Id.) An exaggeration of deficits appeared to be unlikely, as his performance was too remarkably consistent across the two assessments for someone to be attempting to present an artificially low level of performance. ( Id.) Dr. Hauschild concluded that the Plaintiff does have significant memory deficits. ( Id.)
On June 26, 2000, the Plaintiff saw Dr. Bhupendra K. Shah for a neurological evaluation, which revealed normal muscle strength in the upper and lower extremities, deep tendon reflexes 1+ in the upper extremities and at the knees but absent at the ankles. (Tr. at 559-560.) Sensory examination revealed decreased pinprick in the right leg and decreased vibration in both legs. (Tr. at 560.) Muscle coordination was normal, and the Romberg was negative. ( Id.) Dr. Shah's gait examination revealed that the Plaintiff walks with a slightly wide-based gait. ( Id.) And he was able to walk without his cane with no problems.
Dr. Shah found that the Plaintiff had the following limitations: can stand for only 2 hours in an 8-hour workday, and can only walk for 1 hour (Tr. at 562); can lift and/or carry up to 5 pounds continuously, 6 to 10 pounds frequently, and 11 to 20 pounds occasionally ( Id.); can occasionally bend, squat, crawl, climb, and reach (Tr. at 563). Additionally, Dr. Shah opined that the Plaintiff is totally restricted from working at unprotected heights, ( Id.); mildly restricted to marked changes in temperature and humidity ( Id.); and mildly restricted to exposure to dust, fumes and gasses. ( Id.)
On August 12, 2000, Dr. R. Pourmand performed a Compensation Pension Exam for the VA. (Tr. at 567-569.) The Plaintiff complained of difficulty walking, a numbness of the right side of the body, and numbness of both feet with muscle cramp (Tr. at 567.) Dr. Pourmand performed a neurological examination which showed that the Plaintiff's speech and language as intact. ( Id.) Although his memory was generally intact, Dr. Pourmand noted that the Plaintiff's short-term memory was poor. ( Id.) Dr. Pourmand also noted mild facial weakness on the left side. ( Id.) On strength testing, the Plaintiff had mild right-sided hemiparesis, normal tone, and normal bulk, although his reflexes were diminished throughout. ( Id.) Sensory examination showed stocking-glove sensory deficit to pinprick and light touch. ( Id.) Additionally, while the Plaintiff walked with a cane, his walk was not ataxic. ( Id.)
Dr. Pourmand noted that the Plaintiff's stroke had manifested as sensory loss, and that he also had generalized polyneuropathy, which was most likely due to alcohol and diabetes. ( Id.) Dr. Pourmand diagnosed the Plaintiff with hypertension; non-insulin-dependent diabetes mellitus-diabetic neuropathy; hyperlipidemia; right carotid artery artherosclerotic disease-status post endarterectomy; ataxia; history of alcohol abuse; and nicotine dependence (Tr. at 569.)
III. STANDARD OF REVIEW
To be entitled to Social Security benefits, the Plaintiff must establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months . . . ." 42 U.S.C. § 416(i)(1); 42 U.S.C. § 423(d)(1)(A). A physical or mental impairment is "an impairment that 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). It is not enough for the Plaintiff to establish that an impairment exists. It must be shown that the impuirment is severe enough to preclude the Plaintiff from engaging in substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840, 844 (4th Cir. 1962), cert. denied, 372 U.S. 945 (1963); Garcia v. Califano, 463 F. Supp. 1098 (N.D. Ill. 1979).
A five step test has been established to determine whether a claimant is disabled. See Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 482, U.S. 137, 107 S.Ct. 2287, 2290-91 (1987). The United States Court of Appeals forthe Seventh Circuit has summarized that test as follows:
The following steps are addressed in order: (1) Is the claimant presently unemployed? (2) Is the claimant's impairment "severe"? (3) Does the impairment meet or exceed one of a list of specific impairments? (4) Is the claimant unable to perform his or her former occupation? (5) Is the claimant unable to perform any other work within the economy? An affirmative answer leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than step 3, stops the inquiry and leads to a determination that the claimant is not disabled.Nelson v. Bowen, 855 F.2d 503, 504 n. 2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160, 162 n. 2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). A claimant has the joint burdens of production and persuasion through at least step four, where the individual's residual functional capacity ("RFC") is determined. Yuckert, 482 U.S. at 146 n. 5; 20 C.F.R. § 404.1545, 416.945. At step five the Commissioner bears the burden of proving that there are jobs in the national economy the plaintiff can perform. Herron v. Shalala, 19 F.3d 329, 333 n. 18 (7th Cir. 1994). From the nature of the ALJ's decision to deny benefits, it is clear that step five was the determinative inquiry.
IV. DISCUSSION
Given the foregoing framework, "[t]he question before [this court] is whether the record as a whole contains substantial evidence to support the [Commissioner's] findings." Garfield v. Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) (citing Whitney v. Schweiker, 695 F.2d 784, 786 (7th Cir. 1982); 42 U.S.C. § 405(g)); Burnett v. Bowen, 830 F.2d 731, 734 (7th Cir. 1987). "Substantial evidence" has been described as "more than a mere scintilla." Anderson v. Bowen, 868 F.2d 921, 923 (7th Cir. 1989). It means, "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion . . . ." Id. (quoting Richardson v. Perales, 402 U.S. 389 (1971); see also Allen v. Weinberger, 552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed . . . unless there has been an error of law." Garfield, 732 F.2d at 607; see also Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).
In the present case, the ALJ found that the Plaintiff had not engaged in any substantial gainful activity since the alleged onset date. At step two, the ALJ found that the Plaintiff's impairment was severe; however, the ALJ found that the Plaintiff's impairment did not meet or exceed one of the listed impairments under step three. Under step four, the ALJ found that the Plaintiff was precluded from returning to his past relevant work. However, under step five, the ALJ found the Plaintiff capable of making a vocational adjustment to perform work at the light unskilled level in the region as a cashier or an office helper.
The Plaintiff contends that the ALJ committed reversible error by (A) improperly assessing the Plaintiff's RFC with regard to his ability to stand and walk, (B) improperly considering the Plaintiff's ability to make an adjustment to other work, (C) improperly assessing the Plaintiff's educational level, and (D) incorrectly proffering Dr. Shah's report, which denied the Plaintiff due process of law.
A. The ALJ Improperly Assessed the Plaintiff's RFC for Standing and Walking
The Plaintiff contends that the ALJ incorrectly assessed his RFC because he failed to account for Dr. Shah's report which limited the Plaintiff to only 2 hours of standing and 1 hour of walking in an 8-hour workday. The Plaintiff argues that this limitation alone would render him incapable of performing any jobs in the light work category, yet the ALJ never discussed it in his RFC determination.
The ALJ found that the Plaintiff retained the RFC to perform light work. Light work is defined as "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 in a particular light job may be very little, a job is in this category when it requires a good deal of walking or standing — the primary difference between sedentary and most light jobs." 20 C.F.R. § 404.1567(b). SSR 83-10 fuither explains the standing and walking requirement: "[s]ince frequent lifting or carrying requires being on one's feet up to two-thirds of a workday, the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday." SSR 83-10 (emphasis added).
Although the ALJ is charged with building an accurate and logical bridge between the evidence and his decision, Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002); here, he fliiled to fully explain what medical evidence he relied on in establishing the Plaintiff's RFC. In particular, it is unclear what evidence the ALJ utilized to conclude that there were no restrictions on the amount of time the Plaintiff could walk or stand during an eight hour day. Certainly, the ALJ never discussed Dr. Shah's limitations on the Plaintiff's ability to walk and stand, but if he had, we do not believe he could have found the Plaintiff capable of perfonning light work. After all, light work requires standing or walking for about 6 hours a day, but according to Dr. Shah, the Plaintiff can only do these activities for a total 3 hours per day.
Nevertheless, since the entire record contains only two opinions concerning the Plaintiff's ability to stand and walk, and since the ALJ apparently did not rely on Dr. Shah's opinion on this matter, we must assume that he relied on the opinion of the State Agency physician, Dr. F. Montoya. ( See Tr. at 397.) In contrast to Dr. Shah, Dr. Montoya never examined the Plaintiff, yet he indicated that the Plaintiff could walk and stand for about six hours a day. Yet despite the conflict between Dr. Shah's and Dr. Montoya's opinions, the ALJ did not bother to weigh these opinions to determine which was entitled to greater weight. Powers v. Apfel, 207 F.3d 431, 434 (7th Cir. 2000) (ALT must weigh evidence and resolve any conflicts in the evidence). If he had, Dr. Shah's opinion would doubtless be entitled to greater weight than that of Dr. Montoya. After all, a report from a non-examining physician, like Dr. Montoya, cannot by itself trump the findings of an examining source. Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995) ("[t]he opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of . . . an examining physician"). Moreover, form RLFC reports, like the one Dr. Montoya completed by merely checking a box without elaboration, are "entitled to relatively little weight" when completed by a non-examining doctor. Brasel v. Massanari, 2002 WL 1160155, * 10 n. 3 (N.D.Ill. May 30, 2002) (quoting Berrios-Lopez v. SHHS, 951 F.2d 427, 431 (1st Cir. 1991)). Additionally, 20 C.F.R §§ 404.1527(d) 416.927(d) provide a list of factors to consider when weighing medical opinions. Thus in determining the amount of weight to give to an opinion, the ALJ must consider whether the physician examined the claimant, whether treatment was prescribed, the length of treatment relationship and frequency of examinations; nature and extent of the treatment relationship; consistency, supportability; specialization; and other factors. Id. Based on these factors, certainly Dr. Shah's opinion would be entitled to greater weight, since he actually examined the Plaintiff and is a neurology specialist.
Furthermore, it is difficult to understand why the ALT discounted Dr. Shah's opinion about walking and standing at all. After all, the ALT praised Dr. Shah's opinion as "the best and most recent assessment of the [Plaintiff's] physical limitations" and he noted that Dr. Shah is a neurology specialist. (Jr. at 26.) Yet despite this endorsement, the ALJ, as the Commissioner concedes, proceeded to discount without comment the sole portion of Dr. Shah's opinion which indicates that the Plaintiff is incapable of light work. However, the ALJ may not ignore evidence that is contrary to his findings, Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001); Henderson v. Apfel, 179 F.3d 507, 514 (7th Cir. 1999), rather he must "articulate at some minimal level his analysis of the evidence" to permit an informed review. Scott, 297 F.3d at 593; Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
Nevertheless, the Commissioner argues that because the ALJ stated that he considered all of the evidence in the record, he properly excised this portion from Dr. Shah's opinion. However, this argument seems rather disingenuous given that this evidence was crucial to the Plaintiff's case, yet the ALJ made no effort to build a bridge between the evidence and his conclusion. Scott, 297 F.3d at 595; Steele, 290 F.3d at 941. Indeed, while the ALJ mentioned this portion of Dr. Shah's opinion earlier in his decision, he fails to even minimally explain why he was excluding it from his RFC determination. (Tr. at 26.) Rather than explaining the basis for his determination, the ALJ stated that Dr. Shah's limitations would allow the Plaintiff to do more work than the his RFC determination. However, as discussed above, this misstates Dr. Shah's opinion since the walking and standing limitations would preclude any light work. In short, Dr. Shah's opinion regarding the Plaintiff's ability to walk and stand was crucial to the Plaintiff's case and the ALJ had the affirmative duty to address it in his decision.
Finally, although neither party argues the point, we note that the VE certainly did not take Dr. Shah's limitation into account when he testified about what jobs the Plaintiff could perform. To begin with, the ALJ did not include this limitation in his hypothetical question to the VE. But a hypothetical question is not necessarily faulty if it does not include every one of the claimant's impairments, so long as the VE has reviewed the record and listened to the hearing testimony. See Ragsdale v. Shalala, 53 F.3d 816, 820 (7th Cir. 1995); Ehrhart v. Sec. Health Human Servs., 969 F.2d 534, 540 (7th Cir. 1992); Connor v. Shalala, 900 F. Supp. 994, 1003 (N.D. Ill. 1995). However, here Dr. Shah did not examine the Plaintiff until after the disability hearing and after the VE testified. Accordingly, it was impossible for the VE to independently assess the Plaintiff's limitations on walking and standing.
Thus, because the ALJ failed to explain his consideration of Dr. Shah's opinion about the Plaintiff's ability to stand and walk, his RFC determination is not supported by substantial evidence.
B. The ALJ's Decision on a Sit/Stand Option is Supported by Substantial Evidence
In his opening brief, the Plaintiff contends that the ALJ's decision that the Plaintiff is capable of performing work as a cashier or an office helper is not supported by substantial evidence because the Plaintiff's need for a sit/stand option allegedly precludes all light work. To support this contention, the Plaintiff quotes SSR 83-12 and Peterson v. Chater, 96 F.3d 1015, 1016 (7th Cir. 1996) for the proposition that an individual who "may be able to sit for a time but then must get up and stand and walk for awhile [sic] before returning to sitting. . . . is not functionally capable of doing . . . the prolonged standing and walking contemplated by most light work." SSR 83-12; Peterson, 96 F.3d at 1016.
However, as the Commissioner points out, Peterson goes on to hold that this does not end the case, rather at that point an ALJ must submit this evidence to a VE, which is precisely what the ALJ did here. Peterson, 96 F.3d at 1016.
Nevertheless, in his reply brief, the Plaintiff attempts to demonstrate that the ALJ submitted an inaccurate hypothetical question to the VE since he did not include the Plaintiff's age. However, as discussed supra, that alone does not invalidate the hypothetical question since the VE had ample opportunity to discern the Plaintiff's age. See Ehrhart, 969 F.2d at 540; Ragsdale, 53 F.3d at 820; Connor, 900 F. Supp. at 1003. Indeed, the VE reviewed the record (Tr. at 53) which contained numerous references to the Plaintiff's age.
Accordingly, the ALJ did not err in considering the Plaintiff's need for a sit/stand option, and his decision on this point is supported by substantial evidence.
C. The ALJ Improperly Assessed the Plaintiff's Educational Level
Next, the Plaintiff contends the ALJ erred in evaluating his level of education based on the regulations in 20 C.F.R. § 404.1564(b) 416.964(b). In his decision, the ALJ described the Plaintiff as having a high school education; however, he never discussed the basis for that statement. (Tr. at 27.) Presumably, the ALJ felt confident in concluding that the Plaintiff had a high school education because while he dropped out of school in the 9th or 10th grade, he went on to receive his GED equivalency degree in 1981, and apparently even took some classes at a vocational college. (Tr. at 468.) Nevertheless, as the Plaintiff points out, objective testing indicated that his spelling skills were at the 5th grade level, his arithmetic scores were at the 5th grade level, and his reading skills were at the 8th grade level.
Although the Seventh Circuit has not directly address this issue, the Eighth Circuit and at least one other court in this district have considered the effect of 20 C.F.R. § 404.1564(b) and 416.964(b) in determining a claimants educational ability. See Walston v. Sullivan, 956 F.2d 768 (8th Cir. 1992); Lewis v. Barnhart, 201 F. Supp.2d 918 (N.D. Ind. 2002). In these cases, the court recognized that the grade completed or, by implication, the receipt of a GED may not accurately represent a claimant's education ability. Walston, 956 D.2d at 771; Lewis, 201 F. Supp.2d at 934. "A claimant's formal education is conclusive proof of his educational abilities only if no other evidence is presented to contradict it." Id. (emphasis added); see also 20 C.F.R. § 404.1564(b) 416.964(b) ("the numerical grade level you completed in school may not represent your actual educational abilities. These may be higher or lower. However, if there is no other evidence to contradict it, we will use your numerical grade level to determine your educational abilities."). In Lewis, the court held that the ALJ had erred in using the fact that the claimant had completed high school to determine his educational level, when objective testing placed his spelling skills at the 5th grade level and his computation skills at the 8th grade level. Lewis, 201 F. Supp.2d at 934.
Although we do not cite it as authority, we note that the Seventh Circuit has held that the grade completed is not conclusive of educational ability in at least one unpublished decision. See Heldenbrand v. Chater, 132 F.3d 36, 1997 WL 775098, *5-6 (7th Cir. Dec. 15, 1997). In that case, the court determined that although the claimant had a high school education, the ALJ failed to fully consider his educational level since there was considerable evidence of illiteracy. Id.
Likewise, in this case, the psychologist who administered the educational test (the WRAT-III) to the Plaintiff stated that he was functioning at the "low average range" of overall ability, but that he had significant impairments in spelling and arithmetic, where he scored at the 5th grade level, and in reading, where he scored at the 8th grade level. Under the regulations, the spelling and arithmetic scores indicate that the Plaintiff has only a "marginal education, " while the reading score places him in the "limited education" category. 20 C.F.R. § 404.1564(b)(2)(3) 416.964(b)(2)(3).
However, the ALJ never discussed the Plaintiff's educational abilities, and it appears he simply presumed that if the Plaintiff has a GED, then he functions at the high school level. While this presumption is justified in the absence of contrary evidence, the WRAT-III clearly indicated that in spelling, reading and arithmetic, the Plaintiff functioned well below the high school level.
All of this is significant because among the two occupations the VE found the Plaintiff capable of performing (i.e., cashier and office helper), all of the cashier jobs and some of the office helper require a high school education. ( See Pl. Opening Br., App. ( Unskilled Employment Quarterly, Census Code ## 276, 357 (United States Publishing, 2000)). Additionally, no cashier or office helper jobs exist in the Fort Wayne regional market for persons of marginal education. ( Id.)
The Commissioner does not object to the Plaintiff's use of the Unskilled Employment Quarterly or to his characterization that the office helper is listed as one of seven positions within the "messenger" title.
Accordingly, the ALJ's failure to accurately assess the Plaintiff's educational level constitutes harmful error, and the decision of the ALJ on this point is not supported by substantial evidence.
D. The ALJ's Properly Proffered Dr. Shah's Report to Plaintiff's Counsel
Finally, the Plaintiff contends that the ALJ's post-hearing proffer of Dr. Shah's report to plaintiff's counsel was defective, and denied the Plaintiff due process of law.
In Tom v. Heckler, the Seventh Circuit stated that "[t]he use of an adverse post-hearing report without an opportunity to cross-examine its author and to present rebuttal evidence has been held to violate a claimant's right to due process of law." Tom v. Heckler, 779 F.2d 1250, 1252 n. 2 (7th Cir. 1985) (emphasis added). This is because 42 U.S.C. § 405(b) requires the Commissioner to give an applicant an opportunity for a hearing, and if a hearing is held to make her decision on the basis of evidence adduced at that hearing. Lonzollo v. Weinberger, 534 F.2d 712, 714 (7th Cir. 1976). But when the Commissioner bases her final decision on evidence not presented at the hearing and the claimant lacks notice and the opportunity to rebut that evidence, then a due process violation occurs. Id.
To ensure compliance with due process, Social Security's Hearing, Appeals, and Litigation Law Manual ("HALLEX") I-2-7-30(a) requires the ALJ to submit a proffer letter to the Plaintiff which
1. give[s] the claimant a time limit to object to, comment on, or refute the evidence, or [to] exercise his or her rights with respect to requesting a supplemental hearing and the opportunity to cross-examine the author(s) of any post-hearing report(s); and
2. if the ALJ is proposing to enter medical reports into the record as exhibits, also inform[s] the claimant of the right to:
1. submit the new evidence to a treating source(s); and
2. submit any comments from the treating source(s) to the ALJ for inclusion in the record.
HALLEX I-2-7-30(b).
Here, the ALJ offered a proffer letter that arguably failed to comply with the due process requirements of HALLEX I-2-7-30(b). Indeed, it provides in full:
This is in reference to the above-captioned claim for disability benefits. I have received additional evidence which I propose to include in the record of this case. This evidence is enclosed for your information.
If you wish to submit written comments concerning the evidence received, I will carefully consider them. Please reply within ten (10) days from the date of this letter. If you need additional time, please let me know.
(Tr. at 565.) Indeed, in Oyen v. Shalala, the district court found that a similar proffer letter violated the claimant's due process rights under 42 U.S.C. § 405(b). Oyen v. Shalala, 865 F. Supp. 497, 509 (N.D. Ill. 1994). There the proffer letter instructed the claimant to "study the additional documentation and submit in writing to me any objections you may have." Id. at 503. The court concluded that because the ALJ relied heavily on the post-hearing report to deny benefits and because the proffer letter failed to comply with the HALLEX requirements, the claimant was denied due process of law. Id. at 509.
To be sure, if the ALJ here had relied on Dr. Shah's report to determine the Plaintiff's RFC and if that report were actually adverse to the Plaintiff's claims, a due process violation would have occurred. After all, the ALJ failed to alert the Plaintiff of his right to cross-examine Dr. Shah, refute his report, or submit the report to his own treating physician for commentary. However, since, as discussed supra, Dr. Shah's report is crucial to the Plaintiff's case, and since the ALJ improperly failed to account for this report in determining the Plaintiff's RFC, all of this is of no moment here. Dr. Shah's report is advantageous to the Plaintiff because it indicates that he cannot stand and walk for more than three hours a day and thus cannot perform any light work. Certainly this evidence is not adverse to the Plaintiff's claims, and accordingly we see no due process violation. See Tom, 779 F.2d at 1252 n. 2 (reliance on an adverse post-hearing report without an opportunity to cross-examine violates due process).
CONCLUSION
For the foregoing reasons, the decision of the ALJ is REVERSED and REMANDED.