Opinion
Civil No. 99-784-HA
September 5, 2000
Tim Wilborn Portland, OR Attorney for Plaintiff.
Renee C. McFarland Special Assistant United States Attorney Seattle, WA Attorney for Defendant.
OPINION AND ORDER
Plaintiff Leo Benally has petitioned the court under Title II of the Social Security Act, 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration denying plaintiff's claim for Social Security disability benefits pursuant to 42 U.S.C. § 416 and 423. For the reasons stated below, this court concludes that the Commissioner's decision is not supported by substantial evidence and that plaintiff is entitled to benefits.
I. Procedural History of the Case
In 1991, plaintiff was found disabled under the Social Security Act on the basis of affective disorders and alcoholism. After the Social Security Act was amended in 1997 to preclude consideration of alcoholism as a basis for disability, plaintiff's benefits were ceased. Plaintiff reapplied for benefits. After initial denial of the claim, a hearing was held before an administrative law judge ("ALJ"), who found against plaintiff's application, and the Appeals Council rejected plaintiff's administrative appeal.
II. The ALJ's Findings
Plaintiff has been diagnosed with insulin-dependent diabetes under poor control and dysthymia. (Tr. 209.) He suffers from severe pain and neuropathy in his lower extremities, has "very minimal sensation in his feet bilaterally up to the ankles," and has a chronic diabetic ulcer on his great left toe. (Tr. 236, 238, 498.) Plaintiff has great difficulty walking without a cane. (Tr. 580-81.) One of his doctors reported, "When the patient is asked to walk without his cane he has difficulty and needs to go from one piece of furniture, i.e., the desk to the exam table to counter, with difficulty and marked instability with walking secondary to weakness. The patient has difficulty standing without the assistive device from greater than 15 seconds secondary to weakness and pain." (Tr. 581.) He has "marked atrophy and poor muscle tone throughout all four extremities." (Tr. 581.) When plaintiff sits, he is required to keep his feet elevated. (Tr. 45 and 48.)
Plaintiff describes the pain in his legs as "sharp. From my nerves all the way down from my legs all the way up from, to my knees a sharp pain." (Tr. 45.) Standing and walking make the pain worse. (Tr. 47.) Plaintiff also suffers from an impaired pancreas for which he must also take medication. (Tr. 46-47.) Because of his medications, plaintiff gets nauseated and has trouble holding his food down. Before the onset of his ailments, plaintiff weighed 180 pounds. When he was placed in a nursing home for a time in the late 1990's, his weighed had dropped down to 99 pounds. (Tr. 50, 227.) During the past year, he gained some weight back due to a change in medication, but he still weighed only 130 pounds at the time of the hearing. (Tr. 50.)
Plaintiff has had a history of alcoholism, but realizes that drinking beer hurts his stomach and his diabetes. In 1996, he would not drink during the week, but would drink two 40-ounce beers on most weekends. (Tr. 575-76.) At the time of the hearing, he had stopped drinking altogether, although he has had relapses. (Tr. 52.) Although plaintiff generally feels better when he does not drink, the level of pain in his legs does not change. (Tr. 53.)
Finally, plaintiff has low mental functioning, scoring 51 points out of 100 on the Global Assessment of Functioning scale. (Tr. 576.) A score under 50 points is indicative of a disability purely on a psychological basis. Plaintiff also has deficiencies in concentration, persistence, and pacing often resulting in failure to complete tasks in a timely manner. (Tr. 30.)
Despite these medical diagnoses and plaintiff's credible testimony, the ALJ ruled that plaintiff's disabilities do not satisfy the criteria for a listed impairment and that plaintiff retains the residual capacity to perform work in the national economy as a cannery worker or a cashier, based on the vocational expert's testimony that plaintiff could perform these jobs if employers accommodated plaintiff by allowing him to sit with his leg elevated. The ALJ further found that plaintiff's alcoholism materially contributes to his impairments.
III. Standard of Review
The Social Security Act provides for payment of disability insurance benefits to people who have contributed to the Social Security program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1). The burden of proof to establish a disability rests upon the claimant. Gomez v. Chater, 74 F.3d 967, 970 (9th Cir.), cert. denied, 117 S.Ct. 209 (1996). In order to meet this burden, a claimant must demonstrate an inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). An individual will be determined to be disabled only if there are physical or mental impairments of such severity that the individual is not only unable to do previous work but cannot, considering his or her age, education, and work experience, engage in any other kind of substantial gainful work existing in the national economy. 42 U.S.C. § 423(d)(2)(A). The impairment must result from "anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(1)(A).
Social Security regulations provide a five-step sequential analysis for determining whether a claimant is disabled. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. § 404.1520. First, the claimant must not currently be performing "substantial gainful activity." Second, the claimant, based on medical evidence, must have a "severe" impairment or combination of impairments. A severe impairment is one "which significantly limits the claimant's physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). Third, a "severe" impairment must be equivalent in nature to an impairment listed in the regulations as one which the Commissioner acknowledges is so severe as to preclude substantial gainful activity. 20 C.F.R. § 404.1529(d). Fourth, if the claimant does not have a listed impairment, the impairment must in combination with other factors prevent the claimant from doing past work. Fifth and finally, if the claimant has established that the impairment prevents performance of past work, the burden shifts to the Commissioner to demonstrate that the claimant can perform other types of work that exist in the national economy, given the claimant's residual functional capacity, age, education, and work experience. Distasio v. Shalala, 47 F.3d 348, 348, (9th Cir. 1995).
When this court reviews a decision of the Commissioner, it will be upheld if it is supported by substantial evidence and the ALJ applied the correct legal standards. "Substantial evidence is `more than a mere scintilla.' It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. It does not have to rise to a preponderance of the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975).
IV. Discussion
The ALJ's findings are not supported by substantial evidence. First, the ALJ's finding that plaintiff's condition does not meet the criteria of a listed impairment is contrary to the evidence. Listing 9.08A of 20 C.F.R. § 404, Subpart P, Appendix 1 requires that in order to support a finding of disability, plaintiff's diabetes to be characterized by "neuropathy demonstrated by significant and persistent disorganization of motor function in two extremities resulting in sustained disturbance of gross and dexterous movement, or gait and station." Plaintiff's testimony and medical history demonstrate his neuropathy is so significant he cannot walk without the aid of a cane. Therefore, plaintiff's impairment meets the criteria of 9.08A.
Second, the ALJ's reliance on the vocational expert's testimony that plaintiff retains the ability to work is unfounded. The expert testified that plaintiff could perform work as in a cannery or as a cashier if the employer were to accommodate plaintiff by allowing him to work seated with his leg elevated. As an initial matter, the expert offered no data on employers who would be willing to employ a worker requiring such an accommodation. In addition, this suggestion ignores plaintiff's medical requirement that he not sit for long periods at a time because the neuropathy in his legs becomes worse. (Tr. 57.) Moreover, when he does sit, his legs must be elevated above the level of his hips. The expert admitted under cross-examination that this degree of leg elevation is impractical in the workplace. (Tr. 64.) Furthermore, the expert's job suggestions ignore plaintiff's significant problems with performing tasks in a timely manner. The Commissioner has failed to meet his burden of demonstrating that plaintiff retains the ability to perform work.
Finally, the ALJ's finding that plaintiff's alcoholism is a material factor in his disability is belied by the record. The ALJ speculated that plaintiff's condition would improve dramatically if he did not drink. The record demonstrates, however, that plaintiff's neuropathy and the related pain in his legs shows no improvement even when he is in a period of complete sobriety. The evidence shows that even in the absence of alcohol, plaintiff is disabled.
V. Conclusion.
The record as it now stands demonstrates that plaintiff is unable to engage in any substantial gainful activity by reason of his impairments and that plaintiff is disabled within the meaning of the Act. The record is fully developed, and further administrative proceedings would serve no useful purpose. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). The decision of the Commissioner is reversed, and this case is remanded to the Commissioner for the calculation and award of benefits. Any other pending motions are denied as moot.
IT IS SO ORDERED.