Opinion
NO. 1:05-CV-694.
November 16, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This action requesting judicial review of the Commissioner of Social Security Administration's denial of an application for Supplemental Security Income (SSI) is referred to the undersigned for review and a recommended disposition.
See 28 U.S.C. § 636(b)(1)(B) (2001) and Loc. R. CV-72 App. B, R.1(H) for the Assignment of Duties to United States Magistrate Judges; see also Gen. Order 05-6.
I. PROCEEDINGS
SSI applicants must prove their "disability" as that term is defined in the Social Security Act. Plaintiff claimed disability due to "infection in both ears and face paralized (sic), back hurts." Tr. 62. Her application proceeded to an evidentiary hearing before an administrative law judge (ALJ), Larry Marcy. Tr. 389. Judge Marcy considered plaintiff's application in accordance with a five-step sequential analysis prescribed by regulation and approved by courts. Judge Marcy found that plaintiff has "residual functional capacity" to perform "light work with some restrictions" and that she retains capacity to perform past relevant work. Tr. 18. This finding, at Step Four of the sequential analysis, generated a conclusion that plaintiff remains capable of engaging in substantial gainful employment, and thus is not disabled within the meaning of the statute.II. POINTS OF ERROR
Judicial review of adverse Commissioner's decisions is limited to determinations of whether the decision is supported by substantial evidence and whether it reflects application of correct principles of law. 42 U.S.C. § 405 (2003). Plaintiff contends that the Commissioner's decision is not supported by substantial evidence because:
1. The vocational testimony, upon which the ALJ's decision is based, is unreliable in that it conflicts with the DOT and uses different meanings to the limitations posed by the ALJ.
2. The vocational expert testimony, upon which ALJ relied, is based on a defective hypothetical.
3. The ALJ failed to make explicit and necessary findings as to the physical and mental demands of the Plaintiff's past work.
Pl.'s Br., p. 1.
III. DISCUSSION AND ANALYSIS
A. ALJ's Findings1. Severe Impairments
ALJ Marcy found that plaintiff has the following severe impairments: "facial problems with pain on the right side and depression." Tr. 13. In making this determination, ALJ Marcy credited medical evidence supporting plaintiff's claim of facial pain: diagnosis of "cranial neuralgia secondary to acute otitis externa, acute otitis externa, sinusitis, and facial edema." Tr. 14; see Tr. 195. He also credited a psychiatric examination report which indicates that plaintiff "has major depressive disorder." Tr. 15; see Tr. 351-356.
2. Residual Functional Capacity
ALJ Marcy assessed functional limitations resulting from plaintiff's mental impairment. He found that plaintiff's mental impairment results in mild limitations of activities of daily living and social functioning; moderate limitation in concentration, persistence, and pace; and no episodes of decompensation. Tr. 15-16. Based on these findings, ALJ Marcy found that plaintiff residual functional capacity for light work is "reduced or compromised by the following non-exertional limitations: the claimant is limited to carrying out only simple tasks due to pain and depression." Tr. 17.
ALJ Marcy's assessment of plaintiff's functional limitations resulting from depression complies with regulation 20 C.F.R. § 416.920a (2006), which mandates a corollary procedure for evaluating mental impairments.
Regulations require the adjudicator to assess mental impairment-related functional limitations in "four broad areas: Activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation." 20 C.F.R. § 416.920a(c)(3) (2006). Assessment of the first three areas requires use of a "five-point scale: None, mild, moderate, marked, and extreme." 20 C.F.R. § 416.920a(c)(4). Assessment of the fourth area requires use of a "four-point scale: None, one or two, three, four or more." Id. "The last point on each scale represents a degree of limitation that is incompatible with the ability to do any gainful activity." Id.
3. Step Four Finding
Relying on the vocational expert's testimony, ALJ Marcy made the following determination at Step Four of the sequential analysis:
Monica Ann Hebert, Vocational Rehabilitation Director of Vocational Support Services, Nederland, Texas. Tr. 49.
The claimant's past relevant work as fast food worker did not require the performance of work-related activities precluded by her residual functional capacity.
Plaintiff's past relevant work also includes clerical work, which the vocational expert identified as "light, unskilled." Tr. 409. The vocational expert also testified a hypothetical claimant with plaintiff's RFC and non-exertional limitations could perform plaintiff's past clerical work. Tr. 410. The vocational expert expressed no reservations on this issue, as she did on the hypothetical claimant's ability to perform fast food work. See Sec. III.B., infra. However, ALJ Marcy did not find that plaintiff could perform past work as a clerical worker.
Tr. 18, Finding 7. Because he found plaintiff capable of performing past employment as a fast food worker, he determined that plaintiff "was not under a `disability' as defined in the Social Security Act, at any time through the date of the decision." Id., Finding 9.
B. Hypothetical Question and Vocational Testimony
ALJ Marcy asked the vocational expert to consider:
an individual that has facial pain that occurs two or three times a day and lasts for a few seconds at a time. . . . several seconds. . . . and this is an extremely sharp pain. In addition, we have an individual that has Depression and the pain condition and the Depression would limit this person to understanding, remembering and carrying out only simple tasks.
Tr. 409. The vocational expert testified that the hypothetical claimant could perform plaintiff's past relevant work "as a fast food worker." Tr. 410. The vocational expert qualified her testimony, however. She stated that, as she understood plaintiff's past work in the fast food industry, plaintiff "wasn't really involved with any of the equipment. . . . But now she's saying she was. . . . If so, that could be a problem." Tr. 410.
C. Analysis
1. Legal Standards
Substantial evidence is more than a scintilla, but less than a preponderance. Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992); 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). The evidence must be "enough to justify, if the trial were submitted to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." National Labor Relations Bd. v. Columbian Enameling Stamping Co., 306 U.S. 262, 299-300, 59 S.Ct. 206, 217 (1939), cited in Harvey L. McCormick, Social Security Claims and Procedures §§ 672 (4th ed. 1991).
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).
2. Application
Plaintiff argues that "making and cooking food. . . . necessarily involves use of equipment." Pl.'s Br., p. 14. Plaintiff further argues that "[t]he VE's misunderstanding of this factual background . . . tainted his (sic) testimony and rendered it unreliable." Id. The Commissioner responds that this argument is without merit, because "the ALJ did not find that Plaintiff could not work with equipment. . . . In fact, the ALJ asked the VE whether the jobs might involve being around vibrating machinery or whether a person's face might come in contact with objects in some way. . . . The VE stated that he did not think so." Deft.'s Br., p. 8.
The vocational expert's testimony, that possible use of equipment in past relevant work "could be a problem," remained undeveloped and therefore ambiguous. Uncontroverted evidence of record establishes precisely the work situation which the vocational expert identified as "a problem." Plaintiff testified that her work in the fast food industry involved "fixing food." Tr. 394. In "Work History Report," plaintiff averred that she "[m]ade food," and she affirmed that she "[u]se[d] machines, tools, or equipment" in her work in the fast food industry. Tr. 106.
Form SSA-3369-BK. Plaintiff completed this Social Security Administration Form as part of the initial application process. Tr. 104-111.
Logically, the "problem" could be multi-faceted and related either to plaintiff's sudden attacks of facial pain or her requirement for "simple tasks" (Tr. 18, Finding 6) because of limited ability to concentrate "due to pain and depression" (Id.). Either impairment could preclude ability to maintain work which requires operation of potentially dangerous equipment such as that in most commercial kitchens. The Commissioner's argument that ALJ Marcy adequately addressed "vibrating machinery" or the possibility that plaintiff's "face might come in contact with objects in some way" misses the mark, because vocational testimony did not explore the types of machinery and equipment involved in plaintiff's past relevant work. In light of the vocational expert's qualified testimony, the ALJ's finding that plaintiff can perform "past relevant work as fast food worker" is not supported by substantial evidence.
RECOMMENDATION
This case should be remanded to the Commissioner for further consideration of plaintiff's ability to perform past relevant work or other work available in substantial numbers in the national economy.
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).
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.
MEMORANDUM OPINION ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
The Court heretofore ordered that this matter be referred to the Honorable Earl S. Hines, United States Magistrate Judge, for consideration pursuant to applicable law and orders of this Court. The Court has received and considered the Report of the United States Magistrate Judge pursuant to such order, along with the record, pleadings and all available evidence. No objections to the Report of the United States Magistrate Judge were filed by the parties.
Accordingly, the findings of fact and conclusions of law of the United States Magistrate Judge are correct and the Report of the United States Magistrate Judge is ADOPTED. A Final Judgment will be entered separately, remanding this action to the Commissioner for further consideration of plaintiff's ability to perform past relevant work or other work available in substantial numbers in the national economy.
SIGNED this the 8 day of December, 2006.
____________________________ Thad Heartfield United States District Judge