Opinion
Civ. No. 03-5255 (PAM/JSM).
November 23, 2004
MEMORANDUM AND ORDER
This matter is before the Court on Defendant's objections to the Report and Recommendation ("RR") of United States Magistrate Judge Janie S. Mayeron dated August 16, 2004, which recommended that Plaintiff's Motion for Summary Judgment be granted and Defendant's Motion for Entry of Judgment with Remand under 42 U.S.C. § 405(g) be denied.
The Court must conduct a de novo review of any portion of the Magistrate Judge's opinion to which specific objections are made. See 28 U.S.C. § 636(b)(1); Local Rule 72.1(c)(2). Based on that review of the record and the submissions of the parties, the Court adopts the RR.
The Magistrate Judge correctly found that remanding this case would be futile because even Defendant concedes that Plaintiff has been disabled since she has reached the age of 55. However, Defendant objects to the RR and claims that a remand is necessary to determine if Plaintiff was eligible for benefits when she was 52-54 years old. Defendant therefore requests a remand to correct the mistaken Vocational Expert ("VE") testimony, and to re-determine whether Plaintiff qualified for benefits during that time.
A. Standard of Review
An Administrative Law Judge's ("ALJ's") decision will be upheld if it is supported by substantial evidence. 42 U.S.C. § 405(g);Johnson v. Apfel, 210 F.3d 870, 874 (8th Cir. 2000). "The substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). Once the claimant has demonstrated that he or she cannot work, the burden is on the Commissioner to show that the claimant can engage in gainful activity. Martonik v. Heckler, 773 F.2d 236, 238 (8th Cir. 1985). This Court may modify or reverse the Commissioner's decision with or without remanding the case for a rehearing. 42 U.S.C. § 405(g). Normally, absent substantial evidence in the record to support the ALJ's decision, the case is remanded for further proceedings. Id. (citing Cox v. Apfel, 160 F.3d 1203, 1210 (8th Cir. 1998)). However, this Court may award benefits without remanding the case for a rehearing where the evidence in the record overwhelmingly supports an immediate finding of disability. Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir. 2000) (emphasis added). Factors to be considered when reviewing the record for "overwhelming evidence" include:
See also Ingram v. Barnhart, 303 F.3d 890, 895 (8th Cir. 2002); Thompson v. Sullivan, 957 F.2d 611, 614 (8th Cir. 1992); Fowler v. Bowen, 866 F.2d 249, 253 (8th Cir. 1989);Talbott v. Bowen, 821 F.2d 511, 514 (8th Cir. 1987);Delgehausen v. Barnhart, 2004 WL 1922126, at *4 (D. Minn. Aug. 27, 2004) (Montgomery, J.).
(1) the ALJ's credibility findings; (2) the plaintiff's vocational factors; (3) the medical evidence from treating and consulting physicians; (4) the plaintiff's subjective complaints relating to exertional and nonexertional activities and impairments; (5) any corroboration by third parties of the plaintiff's impairments; and (6) the testimony of vocational experts, when required, based upon a proper hypothetical question setting forth the plaintiff's impairments.Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989).
B. The ALJ's Credibility Findings
The ALJ improperly determined that Plaintiff's subjective complaints were not fully credible. The appropriate analysis of a claimant's subjective complaints is set forth in Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984). According to Polaski, the adjudicator must consider all evidence, giving particular attention to: (1) the claimant's daily activities; (2) the duration, frequency and intensity of the pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects of medication; and (5) functional restrictions. Id. at 1322. The court in Polaski further recognized that "subjective complaints may be discounted if there are inconsistencies in the evidence as a whole." Id.
Based on a cursory Polaski analysis that excluded both treating and non-treating physicians' opinions, the ALJ found that Plaintiff's subjective complaints were not fully credible. (Tr. 25.) This finding is not supported by substantial evidence because Plaintiff's subjective complaints are consistent with the record as a whole. First, the ALJ stated that Plaintiff was not credible because her "tenuous connection with the work force is not indicative of an individual highly motivated to work." (Tr. 25.) However, this assertion is contrary to the weight of the evidence and ignores Plaintiff's employment from 1982-2000 as a live-in personal attendant. (Tr. 25.) Second, the ALJ found that Plaintiff's alleged weight gain was not credible, yet this determination is also erroneous because he failed to cite any reason for his unilateral opinion aside from his own personal and subjective disbelief that a person could gain twenty pounds in less than one month. (Tr. 26.)
Furthermore, the ALJ erred in determining that Plaintiff's complaints of pain and debilitating anxiety were not credible. (Tr. 26-27.) There is ample evidence in the record corroborating Plaintiff's assertion that she is in pain. For example, the record shows that Plaintiff takes medication for arthritis, anxiety, and depression. (Tr. 26.) There is also ample documentation regarding these complaints and there is physician testimony, which the ALJ should have considered, that supports her testimony that she experiences pain, depression, and anxiety. (Tr. 126-128, 138-147, 156, 158, 160, 162, 170-199, 211.)
C. Plaintiff's Vocational Factors
Plaintiff does not possess a significant amount of marketable employment skills. Plaintiff's only work experience has consisted of working in the homes of private persons as a general companion. (Tr. 25.) This work was performed on a semi-informal basis in exchange for room and board, and sometimes cash. (Tr. 25.) Based on Plaintiff's past work experience, the ALJ found that she has no transferable skills. (Tr. 29.) Plaintiff has never been able to drive a vehicle, and has a high school education. (Tr. 19, 23.) Plaintiff currently lives alone, however she relies on a state operated community support system employee to take her out of her home so that she does not become reclusive. (Tr. 24.) Finally, even the ALJ determined that Plaintiff's exertional limitations would not allow her to perform a full range of light work. (Tr. 30.)
D. Medical Evidence
The ALJ erred when he rejected all of the expert opinion that was presented at the hearing and made findings that required a medical opinion. See Hill v. Callahan, 981 F.Supp. 1178 (S.D. Iowa 1997); Davis v. Callahan, 985 F.Supp. 907 (S.D. Iowa 1997). The ALJ also erred by failing to give weight to the treating physician's opinion. Controlling weight should be given to a treating doctor's opinion. 20 C.F.R. § 404.1527(d)(1). This is especially so where the opinion is consistent with other substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2).
In this case, Plaintiff was treated by several physicians who testified that she experienced pain and was either mentally or physically disabled. Plaintiff was treated by Dr. Bracken in 2001, and he opined that she would not be able to work for twelve months. (Tr. 21.) Dr. Bracken based his opinion, in part, on x-rays of Plaintiff's ankles that revealed mild degenerative changes and calcaneal spurring. (Tr. 21.) The ALJ declared that because Dr. Bracken used the word "mild" when commenting on the x-rays, his opinion that Plaintiff would be unable to work for twelve months was against the weight of the evidence. (Tr. 21.) A treating physician is in a better position to read x-rays, and his findings are not inconsistent merely because he uses the word "mild."
The ALJ should have given Dr. Bracken's opinion controlling weight because there is ample evidence in the record that is consistent with his conclusion. For example, Plaintiff had surgery on her knee and takes medication for arthritis. (Tr. 22.) Furthermore, the impartial medical expert, Dr. Horozaniecki, concurred with Dr. Bracken and also testified that Plaintiff's arthritis was an impairment. (Tr. 22-23.) Finally, the ALJ did give some weight to the opinion of Dr. Schmitz, Plaintiff's treating orthopedist, but failed to consider Dr. Schmitz's conclusion that Plaintiff had severe degenerative arthritis in her right knee. (Tr. 22.)
Plaintiff was also treated by Tom Dominik, a treating Physician's Assistant (P.A.), for chronic back pain. (Tr. 22.) Like the testimony of Dr. Bracken, the ALJ decided that the treating P.A.'s testimony should not be given significant weight. (Tr. 22.) In doing so, the ALJ improperly reasoned that the record did not support the P.A.'s testimony. (Tr. 22.) The ALJ's conclusion is erroneous for several reasons. First, the testimony should be given controlling weight because it is consistent with the testimony of both Dr. Bracken and Dr. Horozaneiki. (Tr. 21-23.) Second, the testimony should be given controlling weight because it is supported by the facts of record. For example, Plaintiff has been taking Tylenol and Celebrex to treat her back pain, and she has made several complaints about her back to her treating physicians. (Tr. 22-23, 126-127).
The ALJ also erroneously failed to give controlling weight to the testimony of two physicians who have evaluated Plaintiff's mental complaints. (Tr. 23-24.) Both Dr. Lewis and Dr. Hintz testified that Plaintiff has issues with confidence, shyness, a borderline IQ, and poor conversational skills. (Tr. 23-24, 170-198.) The ALJ improperly stated that these findings were inconsistent with the record because Plaintiff worked as a live-in caretaker and was able to tolerate the stress of pursuing Social Security benefits. (Tr. 24.) Yet, this finding is also inconsistent with the record which reflects that Plaintiff sees a psychologist on a regular basis, and she is assisted by the services of a community support person who helps her with social and home management. (Tr. 24, 170-198.) Furthermore, Plaintiff is represented by counsel and a community support representative through these proceedings. (Tr. 24.)
Finally, the ALJ also erred in discrediting the opinions of the State Agency Medical Consultants (SAMCs). The ALJ rejected their opinions on the basis that there has been new evidence submitted since their review of the file. (Tr. 25.) Unfortunately, the ALJ did not address what new evidence was submitted or whether it is even relevant to their opinions. (Tr. 25.)
E. Vocational Expert Testimony
The ALJ found that Plaintiff could only perform a restricted amount of light work, and that she could only tolerate brief, superficial contact with the public, co-workers, and supervisors. (Tr. 29.) Based on a hypothetical posed by the ALJ to the VE, the VE found that Plaintiff could perform various work including that of a sales attendant, cashier, or food server, and that there were plenty of positions available in these fields. (Tr. 30.) However, even the Commissioner acknowledges that the VE testimony was incorrect because the positions would require a significant amount of communication with the public, which is a skill that is beyond Plaintiff's capabilities. As the RR correctly points out, the ALJ erred in failing to solicit a reasonable explanation from the VE for the discrepancy between Plaintiff's capabilities and the recommended positions.
F. Conclusion
The Court concludes that overwhelming evidence supports a finding that Plaintiff is disabled. The ALJ erroneously rejected all expert opinion; failed give full weight to the opinions of Plaintiff's treating physicians; did not include Plaintiff's borderline IQ in her Residual Functional Capacity (RFC); did not resolve conflicts between Plaintiff's RFC, the VE's testimony and the DOT job descriptions; and erroneously discredited Plaintiff's subjective complaints. Even the Commissioner agrees that Plaintiff should have been receiving benefits since she turned 55 last year. Moreover, Plaintiff filed her application for SSI benefits in April of 2001. Not only is a remand unnecessary, but it would only cause further delay when Plaintiff is unquestionably entitled to benefits. See Cook v. Bowen, 797 F.2d 687, 691 (8th Cir. 1986).
As the statute requires, the Court has reviewed the record regarding the RR. Based on the review and all the submissions of the parties, the Court ADOPTS the RR.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's Motion for Summary Judgment (Clerk Doc. No. 6) is GRANTED and Plaintiff is immediately entitled to SSI benefits; and
2. Defendant's Motion for Entry of Judgment with Remand Under Sentence Four, 42 U.S.C. § 405(g) (Clerk Doc. No. 8) is DENIED.