Opinion
Case No. 04-4020-JAR.
December 20, 2004
MEMORANDUM ORDER
Plaintiff Robert E. Wilson brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of Defendant Commissioner of Social Security's denial of his application for a period of disability and disability insurance benefits under Title II of the Social Security Act (Act) and supplemental security income under Title XVI of the Act. According to plaintiff, defendant erred in: assessing whether his impairments met or equaled a Listed Impairment; analyzing his credibility; according weight to the physicians' opinions; and assessing his mental and physical residual functional capacity. Because the defendant's decision was in part based on insubstantial evidence and/or on an incorrect application of the law, the Court reverses and remands this case.
I. Procedural Background
On December 1, 2000, plaintiff filed his application for a period of disability, disability insurance benefits, and supplemental security income. These applications claimed disability since February 2, 1999, due to radial nerve damage to the right arm and a knee injury. The applications were denied initially and upon reconsideration. At plaintiff's request, an administrative law judge (ALJ) held a hearing on April 21, 2003, at which both plaintiff and his counsel were present. The ALJ denied all benefits on the basis that plaintiff was not under a "disability" as defined by the Act. Plaintiff's request for review by the Appeals Council was denied. Thus, the ALJ's decision is the final decision of defendant.
II. Standard of Review
Judicial review under 42 U.S.C. § 405(g) is limited to whether defendant's decision is supported by substantial evidence in the record as a whole and whether defendant applied the correct legal standards. The Tenth Circuit has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." In the course of its review, the court may not reweigh the evidence or substitute its judgment for that of defendant.
See White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001) (citing Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994)).
Id. (quoting Castellano, 26 F.3d at 1028).
Id.
III. Relevant Framework for Analyzing Claim of Disability and the ALJ's Findings
"Disability" is defined in the Act as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . . ." The Act further provides that an individual "shall be determined to be under a disability 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. . . ."
Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (quoting 42 U.S.C. §§ 423 (d)(1)(A), 1382c(a)(3)(A) (1982)).
Id. (quoting 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B) (1982 Supp. III 1985)).
The Social Security Administration has established a five-step sequential evaluation process for determining whether a claimant is disabled, and the ALJ in this case followed the five-step process. If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary. Step one determines whether the claimant is presently engaged in substantial gainful activity. If he is, disability benefits are denied. If he is not, the ALJ must proceed to the second step. Here, the ALJ determined that plaintiff was not engaged in substantial gainful activity and, thus, properly proceeded to the second step.
See id. (citing 20 C.F.R. §§ 404.1520, 416.920 (1986)).
Id.
Id.
Id.
Id.
The second step of the evaluation process involves a determination of whether "the claimant has a medically severe impairment or combination of impairments." This determination is governed by certain "severity regulations," is based on medical factors alone, and consequently, does not include consideration of such vocational factors as age, education, and work experience. Pursuant to the severity regulations, the claimant must make a threshold showing that his medically determinable impairment or combination of impairments significantly limits his ability to do basic work activities. If the claimant is unable to show that his impairments would have more than a minimal effect on his ability to do basic work activities, he is not eligible for disability benefits. If, on the other hand, the claimant presents medical evidence and makes the de minimis showing of medical severity, the ALJ proceeds to step three. The ALJ in this case concluded that plaintiff satisfied the severity requirement based on the following impairments: fracture of the tibia and fibular in the left leg; degenerative joint disease in the left knee; status post right epicondylectomy; depression/major depression/anxiety/PTSD; and possible somatoform disorder and dependent personality disorder. Thus, the ALJ proceeded to step three.
Id. (quoting Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987)).
Id. (citing 20 C.F.R. §§ 404.1520(c), 416.920(c) (1986)).
Id. at 750-51 (citing 20 C.F.R. §§ 404.1521(b), 416.921(b) (1986)).
Id. at 751.
Id.
In step three, the ALJ "determines whether the impairment is equivalent to one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." If the impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to benefits. If not, the evaluation proceeds to the fourth step, where the claimant must show that the "impairment prevents [the claimant] from performing work he has performed in the past." If the claimant is able to perform his previous work, he is not disabled. With respect to the third step of the process in this case, the ALJ determined that plaintiff's impairments were not listed or medically equivalent to those listed in the relevant regulations. At the fourth step, the ALJ concluded that plaintiff was unable to perform his past relevant work.
Id. (citing 20 C.F.R. §§ 404.1520 (d), 416.920(d) (1986); Bowen v. Yuckert, 482 U.S. at 141).
Id.
Id. (citing 20 C.F.R. §§ 404.1520 (e), 416.920(e) (1986); Bowen v. Yuckert, 482 U.S. at 141).
Id.
Thus, the ALJ proceeded to the fifth and final step of the sequential evaluation process — determining whether the claimant has the residual functional capacity (RFC) "to perform other work in the national economy in view of his age, education, and work experience." At that point, the ALJ properly shifted the burden of proof to defendant to establish that plaintiff retains the capacity "to perform an alternative work activity and that this specific type of job exists in the national economy." At this step, the ALJ concluded that plaintiff was not disabled because he could perform a significant number of jobs in the state and national economies, including microfilm mounter, grinder operator, and parts assembler.
See id. at 750.
See id. (citations omitted); accord White, 271 F.3d at 1258 (at fifth step, burden of proof shifts to Commissioner to show that claimant retains the functional capacity to do specific jobs).
IV. Analysis of Plaintiff's Specific Arguments
Plaintiff contends that the ALJ failed to: (1) properly assess whether plaintiff's impairments met or equaled a Listed Impairment; (2) properly analyze plaintiff's credibility; (3) accord proper weight to the physicians' opinions; and (4) adequately support her determination of plaintiff's mental and physical residual functional capacities. The Court addresses each of these arguments in turn.
A. The Listing of Impairments
Plaintiff argues that the ALJ erred when she determined that his condition did not meet a Listed Impairment under 20 C.F.R. Pt. 404, Subpt. P, App. 1, without discussing the particular evidence she relied on, as required by Clifton v. Chater. In Clifton, the Tenth Circuit held that it was a reversible error for the ALJ to not "discuss the evidence or his reasons for determining that [plaintiff] was not disabled at step three, or even identify the relevant Listing or Listings." The ALJ's only discussion of evidence or reasons for the determination at step three was:
79 F.3d 1007 (10th Cir. 1996).
Id. at 1009.
At the hearing, claimant, by and through his attorney, stated he was not contending his condition meets or equals any of the medical criteria contained in the listing of impairments. Claimant has the burden of proof at this step in the sequential evaluation process and accordingly had not met it. Further, no treating or examining physician has mentioned findings equivalent in severity to the criteria of any listed impairment.
Plaintiff offered pertinent medical and other evidence probative on the issues at step three, yet the ALJ's decision fails to indicate whether she considered, analyzed or relied on any of this evidence. Although the ALJ need not discuss every piece of evidence when making a decision, she must discuss evidence to explain and support her findings that claimant does not meet a Listing, for "[t]he record must demonstrate that the ALJ considered all of the evidence. . . ." The ALJ has a duty to discuss evidence and explain such a finding, because:
Id. (citing Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (emphasis added)).
In the absence of ALJ findings supported by specific weighing of the evidence, we cannot assess whether relevant evidence adequately supports the ALJ's conclusion that appellant's impairments did not meet or equal any Listed Impairment, and whether he applied the correct legal standards to arrive at that conclusion.
Id.
Absent any discussion by the ALJ of relevant, supportive evidence, as well as probative evidence that the ALJ chooses not to rely on, the ALJ's findings and conclusion are beyond meaningful judicial review.
See Id. at 1009.
Defendant argues that plaintiff conceded that his condition did not meet a Listing, in light of his attorney's failure to address this issue in oral argument at the hearing or in a written submission after the hearing. At the hearing, the ALJ asked plaintiff's attorney whether any of plaintiff's conditions met or equaled a Listing. The attorney responded that he was not ready to answer the question. Although the ALJ directed the attorney to submit a written response within 10 days, the attorney never submitted a response.
But counsel's failure to address this issue does not constitute substantial evidence that plaintiff did not meet a Listing. For plaintiff is only required to comply with the requirement that he "furnish medical and other evidence that [the ALJ] can use to reach conclusions about [the claimant's] medical impairments. . . ." As long as the claimant has provided the required evidence, the ALJ's duty to discuss evidence and explain findings exists irrespective of whether the claimant argues that he meets a particular listing. The attorney's failure to respond during or after the hearing did not relieve the ALJ of her duty to discuss the evidence in the record and determine whether plaintiff's impairments met or equaled a Listed Impairment.
Defendant also argues that there is substantial evidence in the record supporting the ALJ's determination at step three. But it exceeds the bounds of judicial review to consider the evidence that defendant identifies and argues as probative. For the Court cannot rely on evidence that the ALJ may not have considered. The Court simply cannot substitute its judgment for the judgment of the commissioner. Thus the Court is unable to fulfill its duty, which is to determine whether the ALJ's decision was supported by substantial evidence.
See Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir. 2004).
See Hamilton v. Sec'y of Health and Human Servs., 961 F.2d 1495, 1500 (10th Cir. 1992) (citing Hargis v. Sullivan, 945 F.2d 1482, 1486 (10th Cir. 1991)).
Although this is reversible error requiring a remand, the Court will address plaintiff's remaining arguments in the interest of determining whether the ALJ will need to take any further actions should she determine on remand that plaintiff's impairments do not meet a Listing.
B. Physicians' Opinions
Plaintiff contends that the ALJ erred when evaluating the evidence provided by a treating psychologist and an examining physician. The ALJ must give "controlling weight" to the opinion of a treating physician, provided that the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques." If the opinion is well supported, then the ALJ must also confirm that it is consistent with other substantial evidence in the record. If either of these requirements are not met, the opinion is not entitled to controlling weight. If, after this determination, the ALJ decides the treating source's opinion is not entitled to controlling weight, the opinion is still entitled to deference and must be weighed using factors such as: the length of the treatment relationship, the frequency of examination, the nature and extent of treatment provided, the extent to which the opinion is supported by objective medical evidence, the opinion's consistency with the record as a whole, and other factors brought to the attention of the ALJ that tend to support or contradict the opinion. In short, the ALJ cannot disregard a treating source's opinion without giving legitimate and specific reasons for doing so.
Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *2)).
Id.
Id.
Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004) (quoting Watkins, 350 F.3d at 1300-01; Soc. Sec. Rul. 96-2p)).
Id.
The ALJ must give the most weight to treating physicians' opinions; opinions of physicians who have examined the claimant are given less weight; and opinions of physicians who merely review the claimant's records are to be given the least amount of weight. In addition, the ALJ must consider specific factors when deciding the weight to give any physician's opinion, including the length of the treatment relationship, the frequency of examination, and the extent to which the opinion is supported by objective medical evidence.
Talbot v. Heckler, 814 F.2d 1456, 1463 (10th Cir. 1987).
Goatcher v. U.S. Dept. of Health Human Servs., 52 F.3d 288, 290 (10th Cir. 1995).
Plaintiff argues that the ALJ did not properly weigh the opinions of Dr. Curtis, an examining physician, and Dr. Berg, a treating psychologist. Dr. Curtis examined plaintiff on one occasion and opined that plaintiff was not capable of substantial gainful activity. The ALJ mentioned this finding but did not mention what weight she accorded Dr. Curtis's opinion; nor did she weigh Dr. Curtis's opinion using the factors listed above. Because she did not explain why she gave Dr. Curtis's opinion no weight, her decision does not comply with required legal standards.
The ALJ similarly gave no weight to the opinions of Dr. Berg, one of plaintiff's treating psychologists. The ALJ explained that she gave no weight to one of Dr. Berg's opinions because it was beyond his expertise to comment on plaintiff's physical abilities. The ALJ was apparently referring to Dr. Berg's March 13, 2003, addendum to a letter he had authored three days before the addendum. In this addendum, Dr. Berg noted that plaintiff was applying for jobs; but his physical limitations kept him from performing even simple unskilled labor; and that plaintiff could not think of a job that would not cause him significant pain in his leg, arm or back.
But the ALJ failed to discuss the opinion from Dr. Berg's March 10, 2003, letter that was within his expertise. This letter stated that based on Dr. Berg's observations during his evaluation and psychotherapy sessions with plaintiff, he believes plaintiff's mental condition renders him incapable of substantial gainful activity. The ALJ made note of Dr. Berg's June 2001 opinion that plaintiff had post traumatic stress disorder and major depressive disorder; and his May 2002 opinion that plaintiff was doing well enough that Dr. Berg had encouraged plaintiff to return to work. But the ALJ entirely failed to discuss the March 10, 2003, opinion. Because the ALJ gave the opinion of a treating psychologist no weight, without explanation or justification, the Court must reverse and remand.
On remand, the ALJ must consider all of Dr. Berg's opinions, follow the guidelines explained above to determine what weight, if any, the opinions deserve, and state the factors on which she relies. Moreover, the ALJ must similarly determine and explain what weight, if any, she gives the opinions of other medical practitioners.
C. Assessment of Plaintiff's Credibility
Plaintiff further contends that the ALJ's credibility analysis was not supported by substantial evidence. The ALJ must apply the Tenth Circuit's credibility test in Luna v. Bowen. The ALJ must determine whether the claimant's subjective complaints are credible, considering the objective medical evidence and such factors as: the claimant's persistent attempts to find relief and his willingness to try any treatment prescribed; whether the claimant has regular contact with a doctor; the claimant's daily activities; the dosage, effectiveness, and side effects of the claimant's medication; and subjective measures of credibility that are peculiarly within the judgment of the ALJ. Moreover, the ALJ must give specific reasons for rejecting a claimant's subjective complaints. Ultimately, credibility determinations "are peculiarly the province of the finder of fact," and should not be upset if supported by substantial evidence.
834 F.2d 161 (10th Cir. 1987).
Id. at 165-66; Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988); Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000).
White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001) (citing Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995)).
Id. (citing Kepler, 68 F.3d at 390-91).
A review of the ALJ's decision in this case reveals that she considered several factors in assessing plaintiff's credibility, including: (1) his lack of consistent need for narcotic pain medication; (2) that he required no surgery after his leg injury and was able to return to work; and (3) his daily activities. Although some of the ALJ's analysis has evidentiary support, a review of the entire record reveals that the ALJ's credibility determination is not supported by substantial evidence.
One factor the ALJ relied on was plaintiff's lack of a consistent need for narcotic pain medication. Plaintiff argues that the ALJ failed to consider evidence that he now takes methadone regularly. But the ALJ properly considered plaintiff's usage of medications during the relevant time period after the alleged onset date. Plaintiff needed only mild or over-the-counter medication to control his pain for most of the relevant period. In March and June of 2000, plaintiff was using only over-the-counter pain medications; and in November 2000, a physician noted that plaintiff took narcotic pain medications only intermittently.
While noting plaintiff's inconsistent use of narcotic pain medications, the ALJ failed to discuss the efficacy of plaintiff's medications. Plaintiff testified that his pain was not resolved by the medication Daypro; and that injections did not relieve the pain and caused swelling. The ALJ did not address this evidence, nor evidence of plaintiff's other ameliorative measures. There was such evidence that plaintiff had tried: stretching; massage; physical therapy; surgery on his elbow; as well as refraining from working. The ALJ should have evaluated and discussed this evidence.
Another factor the ALJ relied on was the fact that plaintiff did not require surgery for a nondisplaced fracture of his leg and was able to return to work after this injury. Although this may not be dispositive of the issue, the fact that plaintiff needed no surgery and was soon able to return to work, weighs against plaintiff's credibility. Plaintiff argues that the ALJ ignored his testimony that his work performance declined after the injury. But the record shows that plaintiff's testimony could either be interpreted to mean that plaintiff was "slowing down" at work, or that the work was "slowing down," resulting in a lay off of plaintiff and all others who worked the night shift. In any event, based on plaintiff's testimony and a medical record, the ALJ found that plaintiff was able to return to work, and lost his job not because of his work performance, but because the company downsized. Such evidence, that a claimant quit or left his job for reasons other than disability, is important to the determination of whether he is disabled. Defendant also notes that although it did not raise to the level of substantial gainful employment, plaintiff did work after his alleged onset date, and actually working during a period of alleged disability is also highly probative of a claimant's ability to work.
See Williams v. Chater, 923 F. Supp. 1373, 1379 (D. Kan. 1996); Pugh v. Sec'y of HEW, 448 F. Supp. 37, 41 (D. Kan. 1978).
Williams, 923 F. Supp at 1379 (citing 20 C.F.R. 404.1517 "The work . . . that you have done during any period which you believe you are disabled may show that you are able to work at the substantial gainful activity level. . . . Even if the work you have done was not substantial gainful activity, it may show that you are able to do more work than you actually did.")
On the other hand, the ALJ should have considered plaintiff's testimony that he was able to work because his employer had accommodated his injury, giving him lighter work and allowing him rest breaks as needed. And, the ALJ should also consider any evidence that plaintiff had a positive work history until the alleged onset date, evidence that weighs in favor of plaintiff's credibility.
See Ward v. Apfel, 65 F. Supp. 2d 1208, 1214 (D. Kan. 1999) (internal citations omitted) (plaintiff had been successfully employed for almost fifteen years before her illness, had made numerous attempts to return to work on a part-time basis, and treating physicians had noted her frustration at not working and her courageous effort to return to work).
A third factor the ALJ considered was plaintiff's activities of daily living. The ALJ based his determination of plaintiff's activity level on plaintiff's description of his daily activities, as reported in a March 14, 2003, RFC evaluation. The ALJ noted that at the hearing, plaintiff agreed that this report gave an accurate account of his daily activities. Plaintiff starts his day by waking up at 5:00 a.m. and getting his three children ready for school. Plaintiff drives the children to school, about 15 minutes away, then returns home to spend the day with his mother. He helps tidy the house and typically receives many visitors throughout the day. After school, plaintiff takes his children to their practices, and watches them practice while he waits. Plaintiff then takes the children home, prepares supper, watches T.V., and retires to bed about 8:00 p.m. The ALJ found that plaintiff had a very full day in which he engaged in a full range of physical and mental activities. The ALJ commented that this indicated that plaintiff was not as depressed as Dr. Berg's report might suggest.
On the other hand, there was other evidence in the RFC report that suggested that plaintiff's activities are less vigorous and more limited. The ALJ did not discuss that plaintiff reported that his sleep is disturbed by periodic bouts of pain. Plaintiff reported to the examiner that he awakens every four hours because of pain. Moreover, plaintiff notes that his children are older and do not require much assistance getting ready for school; and that there was no evidence concerning the duration, frequency, or intensity with which he performed housework and cooking, nor evidence concerning how his receiving visitors evidences his ability to perform work activities.
Plaintiff compares his daily activities with those of the claimant in Piatt v. Barnhart, 225 F. Supp. 2d 1278, 1291 (D. Kan. 2002). In Piatt, this Court determined that claimant's caring for three children between the ages of 7 and 13, cooking, and performing some household tasks, was not substantial evidence justifying the ALJ's finding that claimant was not credible. But in Piatt, there was also evidence that the claimant's activities were limited by impairments, including her inability to stoop or reach down, her need to take 10 to 15 minute breaks, as well as evidence that on claimant's bad days, she was able to do much less.
Overall, the Court concludes that although there is evidence supporting the ALJ's credibility analysis, the evidence is not substantial. On remand, the ALJ should consider the entire record, set forth the specific evidence she relies upon, apply the correct legal standards in evaluating plaintiff's testimony, and base her determination on substantial evidence in the record as required.
D. RFC Determination
Plaintiff contends that the ALJ improperly determined both his mental and physical RFC. The Court's determination that the ALJ did not properly weigh the medical opinions and did not properly assess plaintiff's credibility will affect plaintiff's RFC determination on remand. Therefore, the ALJ will have to reconsider plaintiff's RFC after properly considering that evidence. The Court further notes that the ALJ's mental RFC assessment needs further explanation on remand. The ALJ simply made reference to the four criteria from the psychiatric review technique and determined that plaintiff could not perform work requiring significant contact with the public. The ALJ should be mindful that the four mental functioning areas from the psychiatric review technique:
are not an RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process. The mental RFC assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment by itemizing various functions contained in the broad categories found in [the four criteria from the psychiatric review technique].
Soc. Sec. Rul. 96-8p, 1996 WL 374184, at *4.
V. Conclusion
Therefore, the Court finds that this action should be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to conduct further proceedings as follows:
Upon receiving the Court's final order of remand, the Appeals Council of the Social Security Administration will remand this case and direct the ALJ to reassess the severity of plaintiff's impairments in accordance with the statutes and regulations. The ALJ should examine whether plaintiff's impairments meet or equal a Listed Impairment, explaining her reasons for her decision. She should also reexamine the physicians' and psychologists' opinions and reassess plaintiff's credibility. Finally, the ALJ should reevaluate plaintiff's mental and physical RFC. The ALJ must support each finding with substantial evidence from the record.IT IS THEREFORE ORDERED BY THE COURT THAT defendant's decision denying plaintiff disability benefits is REVERSED AND REMANDED pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings in accordance with this Memorandum and Order.
IT IS SO ORDERED.