Opinion
4:01CV3267
April 7, 2003
MEMORANDUM AND ORDER ON REVIEW OF THE FINAL DECISION OF THE COMMISSIONER OF SOCIAL SECURITY
Now before me is Plaintiff Mario F. Bradford's Complaint, filing 1, which is brought pursuant to 42 U.S.C. § 405(g) and 1383(c)(3). The plaintiff is seeking a review of the defendant Commissioner of Social Security's decision denying the plaintiff's application for (1) disability insurance benefits under Title II of the Social Security Act, as amended, and (2) supplemental security income benefits under Title XVI of the Social Security Act, as amended. See 42 U.S.C. § 401 et seq.; id. §§ 1381 et seq. The defendant has responded to the plaintiff's complaint by filing an answer and a transcript of the administrative record. (See filings 10, 11.) In addition, pursuant to my order of February 22, 2002, filing 12, each of the parties has submitted a brief in support of his or her position. (See generally Pl.'s Br.; Def.'s Reply Br. (hereinafter Def.'s Br.); Pl.'s Reply Br.) After carefully reviewing these materials, I find that the Commissioner's decision must be reversed.
I. BACKGROUND
According to the decision of the Administrative Law Judge (hereinafter "ALJ"), the plaintiff filed applications for disability insurance benefits under Titles II and XVI of the Social Security Act on November 23, 1998. (See Transcript of Social Security Proceedings (hereinafter "Tr.") at 21.) The plaintiff's applications appear to have been based upon a "C3 neck fracture" that occurred in November of 1998, (id. at 413), although the plaintiff's alleged disability onset date was ultimately changed from November 1998 to January 1, 1989, (see id. at 21, 45-46). After his applications were denied initially and on reconsideration, (see id. at 412-16, 419-23) the plaintiff requested a hearing before an ALJ, (see id. at 424). This hearing was conducted on July 28, 1999, and, in a decision dated October 26, 1999, the ALJ concluded that the plaintiff was not entitled to disability insurance benefits or supplemental security income benefits. (See id. at 31.) In reaching this decision, the ALJ found, inter alia, the following:
There is some confusion and controversy associated with the plaintiff's Title II claim. (See infra Part IV.A.) Although ALJ's decision reports that the Title II claim was filed on November 23, 1998, the materials before me show that the plaintiff's Title II claim was not filed until May 1999. (See id.)
It is unclear whether this hearing actually occurred on June 28, 1999, or July 28, 1999. (Compare Tr. at 35 (indicating June 28) with id. at 21, 37 (indicating July 28).)
That, since January 1, 1989 the Claimant has not performed substantial and gainful work activity.
That the record establishes the existence of severe impairments, namely, his condition status post fracture of C3 and contusion of C3-4 with numbness.
That, while his impairments have not revealed the same or equivalent attendant medical findings as are recited in Appendix 1 to Subpart P of the Social Security Administration's Regulations No. 4, they have imposed significant limitations upon his ability to function. Specifically, the Claimant would be able to occasionally lift and carry up to 20 lbs. and 10 lbs. frequently. He would be able to stand and walk for approximately six hours in an eight hour work day. He would have unlimited ability to push and pull. He would be able to only occasionally climb, balance, stoop, kneel, crouch, and crawl.
That, in view of such limitations, the Claimant has been unable to return to his past relevant work as a construction worker, a store laborer/order packer and a material handler.
That, in spite of the limitations associated with his impairments, the Claimant has the residual functional capacity to perform certain light occupations which, according to a highly qualified vocational expert, exist within his geographic region in significant numbers.
That, accordingly, the Claimant cannot be found "disabled" within the meaning of the Social Security Act, as amended.
That pursuant to the criteria for evaluating pain and other subjective complaints under Polaski v. Heckler, 739 F.2d 1320, 3121-22 (8th Cir. 1984) and Social Security Ruling 96-7p, the Claimant's testimony insofar as it is related to disabling subjective complaints of pain was not credible and, therefore, is not entitled to weight and consideration.
(Tr. at 29-30.)
The plaintiff requested that the Appeals Council of the Social Security Administration review the ALJ's decision. (See Tr. at 12-17, 125.) This request was denied by letter dated August 16, 2001, (see Tr. at 9-10), and, therefore, the ALJ's decision stands as the final decision of the Commissioner of Social Security.
On October 22, 2001, the plaintiff filed the instant action. (See Compl., filing 1.) He seeks a reversal of the Commissioner's decision and an order remanding the case "for purposes of payment of benefits," (filing 1 at 4), for the following reasons: (1) "The final decision of the Commissioner is erroneous as a matter of law in that it fails to properly apply Social Security Ruling 96-2p . . ., nor did the final decision properly reject the opinions of the treating medical source"; (2) "The final decision of the Commissioner is erroneous as a matter of law and unsupported by substantial evidence in that . . . it did not afford the greatest weight to the opinions of the treating medical source"; (3) "The final decision of the Commissioner is erroneous as a matter of law and unsupported by substantial evidence in that the [ALJ] failed to fully develop the record "; (4) "The final decision of the Commissioner is erroneous as a matter of law and unsupported by substantial evidence in that the [ALJ] erred by failing to continue the hearing"; (5) "The final decision of the Commissioner is erroneous as a matter of law and unsupported by substantial evidence in that . . . it failed to make proper credibility findings as to the plaintiff's subjective complaints of pain and depression"; and (6) "The final decision of the Commissioner . . . is not in accordance with the law and is not supported by substantial evidence. . . ." (Id., ¶¶ 5-10.) My analysis of the plaintiff's position follows.
The plaintiff also seeks an award of costs, a trial, and "[s]uch other relief as this Court deems just and equitable." (See filing 1 at 4.)
II. STANDARD OF REVIEW
In reviewing the Commissioner's decision, I must ascertain "whether there is substantial evidence on the record as a whole to support the . . . decision." Hutsell v. Sullivan, 892 F.2d 747, 748-49 (8th Cir. 1989) (citation omitted). "Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion." Hogan v. Apfel, 239 F.3d 958, 960-61 (8th Cir. 2001). See also Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The decision should not be reversed "merely because substantial evidence would have supported an opposite conclusion." Harris v. Shalala, 45 F.3d 1190, 1193 (8th Cir. 1995) (citation omitted). However, the court's review is not simply "a rubber stamp for the [Commissioner's] decision and involves more than a search for evidence supporting the [Commissioner's] findings." Tome v. Schweiker, 724 F.2d 711, 713 (8th Cir. 1984). Indeed, "[t]o determine whether existing evidence is substantial, `[I] must consider evidence that detracts from the [Commissioner's] decision as well as evidence that supports it.'" Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999) (quoting Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). In addition, the court's review of the decision must include a determination as to whether the proper legal standards were applied. See Nettles v. Schweiker, 714 F.2d 833, 836 (8th Cir. 1983).
The ALJ is required to follow a five-step sequential analysis to determine whether an individual claimant is disabled. See 20 C.F.R. § 404.1520; id. § 416.920. The ALJ continues the analysis until either a claimant is found to be "not disabled" at one of the steps, or the claimant is found to be "disabled" at step three or step five. See id. Step one requires the ALJ to determine whether the claimant is currently engaged in any substantial gainful activity. See 20 C.F.R. § 404.1520(b); id. § 416.920(b). If the claimant is engaged in substantial gainful activity, the ALJ will find that the claimant is not disabled. See id. Step two requires the ALJ to determine whether the claimant has an impairment or a combination of impairments that significantly limits her ability to do basic work activities. See 20 C.F.R. § 404.1520(c); id. § 416.920(c). Such activities include, inter alia, walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, seeing, hearing, speaking, and understanding. 20 C.F.R. § 404.1521(b); id. § 416.921(b). If the claimant cannot prove such an impairment, the ALJ will find that the claimant is not disabled. See 20 C.F.R. § 404.1520(c); id. § 416.920(c). Step three requires the ALJ to compare the claimant's impairment or combination of impairments to a list of predetermined "disabling" impairments. See 20 C.F.R. § 404.1520(d); id. § 416.920(d). If the claimant has an impairment that is listed or is equal to a listed impairment, the analysis ends and the claimant is found to be "disabled." See id. If a claimant does not suffer from a listed impairment or its equivalent, then the analysis proceeds to steps four and five. Step four requires the ALJ to determine whether the impairment or impairments prevent the claimant from engaging in past relevant work. See 20 C.F.R. § 404.1520(e); id. § 416.920(e). If the claimant is able to perform any past relevant work, the ALJ will find that the claimant is not disabled. See id. Step five requires the ALJ to consider the claimant's residual functional capacity, age, education, and past work experience to determine whether the claimant can do work other than that which the claimant has done in the past. See 20 C.F.R. § 404.1520(f)1); id. § 416.920(f)(1). If the ALJ determines that the claimant cannot do such work, the claimant will be found to be "disabled" at step five. "In order to qualify for disability benefits, a claimant bears the burden of proving that he or she is unable to engage in any substantial gainful activity because of a medically determinable physical or mental impairment which is expected to last for at least twelve months or result in death." Nettles v. Schweiker, 714 F.2d 833, 836 (8th Cir. 1983). However, at step five of the sequential analysis described above, the burden shifts to the Commissioner to establish that the claimant has the residual functional capacity to do "some job that exists in the national economy." Id.
"`Residual functional capacity' is what the claimant is able to do despite limitations caused by all of the claimant's impairments." Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000) (citing 20 C.F.R. § 404.1545(a)).
III. THE PLAINTIFF'S MEDICAL HISTORY
According to the ALJ's summary of the evidence, the plaintiff was injured in July 1988 after being struck "on the left temple, postier [sic] and neck and back with a steel bar." (Tr. at 24.) The plaintiff was taken to Memorial Southwest in Houston, Texas, for treatment and x-rays, and he was then sent home. (See, e.g., id. at 289.) After a follow-up consultation with a Dr. Bernstein, the plaintiff began therapy to address his continuing complaints of neck, head, and back pain. (See id.) The plaintiff's pain failed to subside, and therefore on March 20, 1989, an "MRI study" was performed. (Id. at 24. See also id. at 287.) The MRI revealed "unusual marrow signal and disc herniation at L5-S1," and, as a result, the plaintiff was admitted to St. Luke's Episcopal Hospital on June 7, 1989, for "L5-S1 left laminotomy, foraminotomy, exploration of disc, dicectomy, nerve root decompression." (Id. at 24. See also id. at 286.) The plaintiff was discharged from the hospital on June 10, 1989, (see id. at 24), and his condition began to improve, (see id. at 285).
In December 1989, the plaintiff "underwent neurological consultation due to persistent pain, numbness and weakness of the right upper extremity." (Tr. at 25.) "Electromyographic examinations revealed `evidence to suggest a chronic right ulnar neuropathy localized at or above the elbow segment and suspected superimposed brachial plexus neuropathy.'" (Id.) Given the results of these examinations, the plaintiff "underwent right ulnar nerve exploration, external neurolysis and a transposition of the ulnar nerve" on January 19, 1990. (Id.) The plaintiff's condition began to improve within ten days of his surgery, and by March 8, 1990, he was described by a Dr. Barrash as "doing nicely." (Id.) However, a letter dated September 27, 1990, indicates that the plaintiff re-injured his right arm and experienced pain and swelling. (See id. at 275.) Further testing was recommended, but the records do not indicate whether this testing was performed. (See id.)
The plaintiff was admitted to a "VA hospital" (Tr. at 25) on June 12, 1995, to receive treatment for severe diarrhea (see id. at 360). During this admission, it was noted that the plaintiff was stabbed in the abdomen on December 8, 1994, which resulted in "extensive hospitalization, ICU care, and protracted midline closure." (Id. at 360.)
On November 6, 1998, the plaintiff appeared at St. Elizabeth Community Health Center in Lincoln, Nebraska, complaining of head, neck, and shoulder injuries. (See Tr. at 216.) According to the records, the plaintiff injured himself by hitting his neck and shoulders against a wall while engaging in wrestling horseplay. (See, e.g., id.) The plaintiff was intoxicated at the time of his injury, and there was evidence of intoxication during his examination at the hospital. (See id.) A "cervical CT scan" was performed and felt to be within normal limits, and an x-ray of the plaintiff's right shoulder revealed "a mild cortical defect in the glenoid on the right side." (Id. at 25.) The plaintiff "was placed in a right shoulder immobilizer and diagnosed as experiencing intoxication, cervical strain and right glenoid cortical fracture," (id.), and was released from the hospital (see Tr. at 243). However, the plaintiff was readmitted on the following day (see id. at 245) after the radiology report (id. at 222) was more thoroughly reviewed by Dr. G. L. Pattee, who noted,
St. Elizabeth Community Health Center is also referred to as "St. Elizabeth Regional Medical Center" in the records. (Compare Tr. at 218 with id. at 220.)
The patient had a cervical spine image, as well as a CT scan of the neck last night. He was apparently cleared after being fitted with a shoulder immobilizer and sent home in a wheelchair. . . . Today, after review of the C-spine series, there was noted to be a right transverse process vertebral artery foraminal fracture, and he was brought back for further evaluation. MRI imaging through the cervical spine revealed evidence of C3-C4 disc disease with C4-C5 disc and noted cord contusion at 3-4.
(Tr. at 243.) Dr. Pattee's impressions were, "1. Status post trauma to head and neck, with questionable loss of consciousness and C3-C4 cord contusion"; "2. Right lateral C3 transverse process vertebral foraminal fracture with some displacement"; and "3. Right shoulder injury." (Tr. at 244-45.) Dr. Pattee suggested that the plaintiff be admitted to the hospital for observation and that he continue to wear a hard cervical collar. (Id. at 245.)
The record also contains a report of an emergency MRI that was performed on November 7, 1998. (See Tr. at 255.) This report contains the following conclusions: "1) Small central to right cord contusion at the C3-4 levels"; "2) C3, 4 and C4-5 central canal stenosis with cord flattening primarily due to broad annular disc bulges and bony bridge formation"; and "3) Multi-level disc space degenerative change." (Id.)
After his release from St. Elizabeth Community Health Center, the plaintiff participated in physical therapy at the Veterans Administration Hospital in Grand Island, Nebraska, from approximately November 10, 1998, until his discharge on November 25, 1998. (See Tr. at 223-240.) At the time of his discharge, the plaintiff was "tapered off of Decadron Po and he was actually having no significant pain and was utilizing Motrin and Tylenol." (Id. at 393.)
On December 29, 1998, the plaintiff was seen by Dr. Pattee for a follow-up examination. Dr. Patee noted that the plaintiff had been rehabilitating in Grand Island and that he has continued to wear a "C-spine collar." (Tr. at 242.) The plaintiff indicated to Dr. Pattee that his overall sensation and his strength in his lower extremities had been improving, but that he was experiencing weakness in his right hand. Dr. Pattee also reported that the plaintiff "does need to use a cane when ambulating." (Id.) Dr. Pattee concluded that x-rays should be taken to determine whether the plaintiff should remain in the cervical collar, and he recommended that the plaintiff continue with physical therapy. He also stated that the plaintiff should avoid physical activities and take care when lifting, bending, or otherwise exerting himself, but noted that, "[o]verall, [the plaintiff] seems to be showing signs of significant improvement from the time of our last evaluation." (Id.)
The records indicate that after his follow-up examination with Dr. Pattee, the plaintiff continued his physical therapy at the Veterans Administration Hospital in Lincoln, Nebraska. (See Tr. at 246-255.) It appears that the plaintiff was initially examined and received therapy on January 4, 1999, due to complaints of neck pain. (See Tr. at 253.) According to the consultation report prepared on that date, the plaintiff was placed on a six-week physical therapy program to decrease his "pain symptoms." (Id.) The plaintiff attended therapy sessions on January 12, 14, 19, 21, and February 12, 1999, but failed to attend sessions scheduled for January 27 and February 3. (See id. at 248-50.) There is evidence that the plaintiff's physical therapy continued in March, 1999. (See, e.g., id. at 343.) Indeed, the plaintiff testified that his physical therapy had been continuing through the date of the hearing and that he did his exercises at home. (See id. at 62.)
In a "general note" dated March 11, 1999, Dr. Jackson Bence indicated that the plaintiff used a cane to walk, that his muscle strength in his upper and lower extremities was "[s]omewhat generally weak," and that his "[d]eep tendon reflexes were very sluggish." (Tr. at 349.) Dr. Bence also noted that "the only doctor he is following with here is P.A. Ward." (Id.) Subsequent to the hearing before the ALJ, the plaintiff submitted a "Vertebrogenic Disorders Questionnaire" that had been completed by Mr. Ward. (See id. at 379-382.) Mr. Ward opined that given the plaintiff's limitations, he would only be able to work "0-3 days per week" and "less than 2 hours" per day. (Id. at 382.) However, the ALJ concluded that "[t]his opinion is not given significant weight since it is not supported by the objective medical evidence of record or the opinion of a treating medical doctor." (Id. at 26.)
At the hearing, the plaintiff testified that he experienced numbness from his neck down to his feet and stated that this feeling had not improved since the time of his injury. (See Tr. at 63-64.) He also testified that he experiences pain in his stomach, lower back, neck, and head, and added that he takes a daily injection in his stomach. (See id. See also id. at 616 (describing injections).) He stated too that he has used a cane ever since his discharge from the hospital in Grand Island, Nebraska. (See id. at 65.) The plaintiff claims that he becomes stiff and experiences pain if he sits for a prolonged period of time. (See id. at 66.)
The plaintiff also testified that his daily activities include staying home, watching TV, resting, and visiting with his niece and cousin. (See Tr. at 70.) He stated that he can sweep, vacuum, and mop for 15 minutes, and that he sometimes goes into the grocery store even though he cannot help put items in the cart. (See Tr. at 70-71.) He also indicated that he went on one trip out of state since his neck injury — a 21-hour car ride from Nebraska to Louisiana to attend a relative's funeral. (See id. at 89-91.)
After the ALJ denied the plaintiff's applications for benefits (see Tr. at 18-20), the plaintiff requested that the Appeals Council of the Social Security Administration review the ALJ's decision (see id. at 12). The plaintiff submitted additional evidence for consideration by the Council, and this evidence was received and made part of the administrative record. (See id. at 11.) The additional evidence indicates that the plaintiff received outpatient substance abuse treatment from November 29, 1999, through January 11, 2000. (See id. at 518.) On December 1, 1999, the plaintiff's left shoulder was x-rayed, evidently to investigate the plaintiff's complaints of pain and weakness in that shoulder. (See id. at 594.) These x-rays were negative. On January 17, 2000, the plaintiff was involved in a motor vehicle accident and fractured his right wrist. (See id. at 506.) Shortly thereafter, he began substance abuse counseling again. (See id. at 507.) This counseling continued through May 2000. (See id. at 466, 469, 478-79, 490-93, 497-502.) On May 30, 2000, the plaintiff evidently appeared at the Veterans Administration Medical Center in Lincoln complaining of low back pain and bladder control problems. (See Tr. at 462.) MRI images taken of the plaintiff's spine revealed "1. Broad-based disc bulge causing mild to moderate stenosis and bilateral nerve root impingement L4-5 and L5-S1"; "2. Small central disc herniation L5-S1"; and "3. Mild disc space narrowing L5-S1." (Id.) The record next contains a series of notes concerning the plaintiff's abdominal problems and complaints of pain. (See id. at 452-59.) There then appears a note dated August 7, 2000, stating that the plaintiff appeared at the hospital complaining of left side pain as a result of being hit by a car on July 25. (See id. at 446. See also id. at 442-445.) An examination of the plaintiff's left knee revealed "[m]inimal narrowing of the medial tibiofemoral joint space," but was otherwise negative. (Id. at 438.) Finally, an examination of the plaintiff performed on September 7, 2000, revealed "Mild degenerative change involving the left hip." (Id. at 437.)
The records reviewed by the Appeals Council also included a "Medical Impairment Evaluation" that was completed by Dr. Bence, one of the plaintiff's treating physicians. (See Tr. at 628-30.) Dr. Bence indicated that he had been seeing the plaintiff on a regular basis since March 1999. (See id. at 628.) He opined that the plaintiff's neck fracture was a disabling impairment that he would expect to last for a continuous period of at least 12 months, (see id.), and that the plaintiff's condition had not improved since the date of its occurrence. (See id. at 629). Dr. Bence also stated that he prescribed pain medication for the plaintiff, that physical therapy was the treatment available for the plaintiff's condition, and that the plaintiff had complied with the prescribed treatment. (See id. at 629.) Dr. Bence described the plaintiff's pain as constant and his prognosis as "poor," and added that the plaintiff was not a "malingerer." (Id.) He noted too that the plaintiff used a cane to walk. (See id.)
Dr. Bence also completed a "Physical Capacities Evaluation" for the plaintiff. (See Tr. at 631-33.) In this evaluation, Dr. Bence opined, inter alia, that the plaintiff could sit for two hours, stand for two hours, and walk for one hour in a normal workday. (See id. at 631.)
IV. ANALYSIS
The plaintiff argues that he is entitled to relief because the Commissioner failed to grant the plaintiff's request for a continuance; failed to fully develop the record; failed to consider the opinion of the plaintiff's treating physician and accord it due weight; failed to apply properly the credibility determination criteria set forth in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984); and failed to construct a proper hypothetical question for consideration by the vocational expert. (See Pl.'s Br. at 9-10.) I shall analyze each of the plaintiff's arguments in turn.
A. The ALJ's Denial of the Plaintiff's Request for a Continuance and Failure to Obtain Records Relating to Previous Applications for Benefits.
The plaintiff's claim was originally filed under Title XVI of the Social Security Act. (See Tr. at 37, 394-411.) His application for benefits under Title II of the Social Security Act was not filed until May 1999, (see Tr. at 37, 138-40), and apparently it was filed only after the intervention or urging of staff members at the Social Security office, (see Tr. at 41-42, 132). The plaintiff's counsel was appointed on March 16, 1999, (see Tr. at 33), and although the appointment form indicates that claims were being asserted under both Title II and Title XVI (see id.), it is clear from the record that no Title II claim had been filed until after counsel's appointment. Counsel evidently was not informed of the new Title II claim despite the fact that he was representing the plaintiff at the time of its filing, and, in fact, it seems that counsel did not learn that a "Title II application [was] relevant and material" until the day of the hearing before the ALJ. (Tr. at 41.) Upon learning of the viability of the Title II claim, counsel requested a continuance to explore the records from four previous applications for benefits that had been filed by the plaintiff — records that had not yet been produced by the Commissioner. (See id. at 40, 42.) In support of his request for a continuance, counsel expressed concern as to whether or not one of the plaintiff's previous applications should be reopened, and stated, "We simply can't properly focus on what kind of a Title II claim we have here today." (Id. at 42.) He also indicated that he was unable to determine whether the medical evidence supported an onset date prior to November 1998 because he had not seen many records from previous years. (See id. at 45-46.) The ALJ denied the request for a continuance, stating that she "would entertain a supplemental hearing if there is evidence that would suggest that this is warranted." (Id. at 43.) The ALJ also recommended that the onset date be changed to 1989, "just to be on the safe side." (Id. at 46.)
On July 29, 1998 — the day after the hearing — the ALJ faxed the following handwritten message to the plaintiff's counsel:
Sir:
After the close of testimony and upon reflection of your claimant's testimony, I have decided it is not necessary to request the 4th application file from Chicago. I am able to adjudicate this 5th application in light of the fact that claimant testified he worked steadily from May-Nov 98 in Nebraska doing heavy to very heavy labor, that he was crew chief of 5 other laborers on week-long demolition jobs out of state, that he also worked week end overtime until he injured his neck in Nov 98. These activities would suggest a healthy musculo-skeletal system up to Nov 98 and the current file contains the pertinent evidence from the date of injury Nov 98.
If you disagree with this decision, please respond.
(Tr. at 125.) The plaintiff responded to the ALJ's fax with a letter dated August 3, 1999. (See Tr. at 16-17.) In this letter, the plaintiff objected to the ALJ's decision for the following reasons: (1) the September 1998 decision denying the plaintiff's previous application for benefits indicates that the plaintiff had a residual functional capacity "that equated with a full range of light exertional work activity," and there is no evidence concerning any medical improvement that would justify a finding that the plaintiff had a "healthy musculo-skeletal system" prior to November 1998; (2) the plaintiff's work between May and November 1998 might constitute an unsuccessful work attempt or trial work period; (3) it is the Commissioner's responsibility to develop the record dating back through the alleged onset date of January 1, 1989, and objective medical evidence concerning the years prior to 1998 is lacking; and (4) counsel did not receive timely notice of the Title II claim. (Id.)
Evidently, the ALJ was not persuaded by the plaintiff's objections. In her decision of October 26, 1999, the ALJ stated,
Prior to the hearing, the Claimant's attorney requested a continuance so that the prior files from the Claimant's prior application could be obtained and in case the other application's [sic] were re-openable.
After the close of testimony and upon careful consideration of the Claimant's testimony, the Administrative Law Judge decided it is not necessary to request the 4th application file, from Chicago. In light of the fact that the Claimant testified he worked steadily from May through November of 1998 in Nebraska doing heavy to very heavy labor, that he was crew chief to 5 other laborers on week-long demolition jobs out of state, that he also worked weekend overtime until he injured his neck in November 1998. [sic]. These activities would suggest a healthy musculoskeletal system up to November 1998 and the current file contains the pertinent evidence from date of injury November 1998. [sic]. The undersigned does not feel that the prior applications and files are necessary in order to adjudicate this 5th and current application and would only cause undue delay in processing this latest application.
(Tr. at 21-22.)
The plaintiff argues that the ALJ's failure to obtain the records from the plaintiff's previous applications for benefits has left the current record incapable of substantially supporting the decision. (See Pl.'s Br. at 13-14.) The plaintiff also claims that the ALJ's failure to obtain the records and her decision to proceed without a continuance deprived him of the opportunity for a full and fair hearing. (See id. at 12-13.)
Preliminarily, I note that the ALJ's justification for not requesting the files (i.e., the fact that the plaintiff had a "healthy musculoskeletal system" prior to his injury in November 1998) is not supported by substantial evidence. First, it is clear that the record was not fully developed with respect to the plaintiff's medical condition prior to November 1998. At the hearing, the ALJ suggested that the plaintiff's disability onset date be changed to January 1, 1989, despite the fact that plaintiff's counsel could not assert that this date would be supported by medical evidence. (See Tr. at 45-46.) The ALJ admitted, "I don't know what objective evidence there is to support an onset date of 1989, but I'm willing to give him the benefit of the broadest period of time." (Id. at 46 (emphasis added).) Thus, although she apparently understood that evidence for the years between 1989 and 1998 was lacking, the ALJ nevertheless ultimately decided that it was unnecessary to place a request for the files associated with the plaintiff's previous applications because the plaintiff's testimony established that he had "a healthy musculoskeletal system up to November 1998." (Id. at 22.) Second, while it is true that the plaintiff testified to performing several months of very heavy labor prior to his injury in November 1998, (see Tr. at 52-60), it must be noted that the plaintiff did not testify that he was capable of heavy labor at all times prior to his injury in November 1998 (see id. at 52-60). His testimony only concerned the time period between May 1998 and November 1998. (See id.) Moreover, the ALJ herself evidently concluded that the "very heavy labor" (id. at 22) performed by the plaintiff between May and November 1998 did not amount to "substantial and gainful work activity." (See id. at 29 ("[S]ince January 1, 1989 the Claimant has not performed substantial and gainful work activity.").) In short, the plaintiff's testimony does not constitute substantial evidence in support of the ALJ's assumption that the plaintiff had a "healthy musculoskeletal system" prior to November 1998. Third, there are indications that plaintiff's "musculoskeletal system" was in fact impaired, at least intermittently, between 1989 and 1998. Specifically, there is evidence that the plaintiff actually "received Social Security benefits from . . . [July] of `89 through [February] of `93, when he was ceased for medical improvement." (Id. at 37.) Also, in a decision dated September 18, 1998, which resulted in the denial of one of the plaintiff's previous applications for benefits, (see id. at 116-124), ALJ Drucker found that the plaintiff's residual functional capacity precluded him from lifting more than 10 pounds frequently and 20 pounds occasionally. (Id. at 123.) These prior decisions flatly contradict the ALJ's assumption that the plaintiff had a "healthy musculoskeletal system" up until his injury in November 1998 and undermine the justification for her decision that all of the medical evidence for the years between 1989 and 1998 is not "pertinent." (Id. at 22.) For each of these reasons, I find that the reasons given by the ALJ for not requesting the relevant records are not supported by substantial evidence.
It should be noted that counsel's inability to support the use of this date is attributable to the Commissioner's failure to produce the records associated with the plaintiff's prior claims for benefits. (See Tr. at 45-46.)
The plaintiff relies upon Cox v. Apfel, 160 F.3d 1203 (8th Cir. 1998), in support of his argument that the ALJ has failed to fully develop the record. In Cox, the Eighth Circuit held that the ALJ's failure to explore a particular aspect of the case, coupled with the absence of certain medical records, required a remand to the Commissioner for further development of the record. See id. at 1209-10. The instant case is somewhat similar to Cox, in that the ALJ never adequately developed or explored the plaintiff's claim insofar as it was based upon an alleged onset date of January 1, 1989, and the ALJ did not attempt to obtain the records from the plaintiff's previous denial determinations. This case also differs from Cox, however, because here the ALJ intentionally decided not to develop the plaintiff's Title II claim and attempted to justify her decision by drawing an unsupported inference about the plaintiff's health during the years in question.
Although Cox is factually distinguishable from the instant case, I agree with the plaintiff that the ALJ's failure to request the prior claims files requires a remand for further proceedings. An ALJ has an affirmative duty to assist the claimant in developing the record fully and fairly, even when the claimant is represented by counsel. See Battles v. Shalala, 36 F.3d 43, 44 (8th Cir. 1994). However, a remand is unnecessary unless the claimant was prejudiced or treated unfairly as a result of the ALJ's failure to develop the record. See Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993). "There is no bright line test for determining when the [ALJ] has . . . failed to develop the record," and "[t]he determination in each case must be made on a case by case basis." Id. at 45 (quoting Lashley v. Secretary of Health Human Serv., 708 F.2d 1048, 1052 (6th Cir. 1983)). Here, the circumstances strongly support a finding that the ALJ's failure to request the prior claims files resulted in prejudice and unfairness to the plaintiff.
First, even though no attempt was made to produce the relevant records, and even though the ALJ recognized that she did not know what the objective medical evidence for the years between 1989 and 1998 might show, the ALJ decided to assume that the plaintiff had a healthy "musculoskeletal system" from 1989 to 1998. This assumption, which appears unjustified in view of the evidence currently in the record, clearly resulted in unfair prejudice to the plaintiff. Furthermore, this unfairness was compounded by the fact that the plaintiff was denied access to the records that he might use to challenge the ALJ's unjustified assumption. In short, the ALJ's willingness to give the plaintiff the benefit of the doubt and alter the alleged onset date to January 1, 1989, was rendered meaningless by her failure to attempt to obtain the evidence that might allow the plaintiff to support the use of such a date.
It must be recalled that the relevant records are within the control of the Commissioner, and therefore the plaintiff has no choice but to rely upon the Commissioner to produce them.
Second, it seems to me that the ALJ's refusal to request the prior claims files also unfairly prejudiced the plaintiff's case in more subtle ways. For example, I note that the ALJ's decision includes a finding that the plaintiff's testimony was not credible. (See Tr. at 23, 30.) This finding was partly supported by the ALJ's determination that the plaintiff's work history has been poor. (See id. at 24.) Specifically, the ALJ stated, "The Claimant has worked at jobs on and off over the years and does not appear to be an individual who is motivated to obtain and maintain employment." (Id.) However, there is evidence to suggest that the plaintiff's ability to work has been limited by injuries. (See, e.g., id. at 37, 39, 123.) The ALJ's failure to request the relevant records may have deprived the plaintiff of an opportunity to challenge the finding that the plaintiff was not "motivated to obtain and maintain employment."
My analysis of the plaintiff's argument that the ALJ's credibility determination was improper is presented in a separate section below. (See infra Part IV.C.)
Finally, the ALJ's refusal to obtain the files unfairly deprived the plaintiff of an opportunity to determine whether or not a previous denial determination ought to have been reopened. At the hearing, the plaintiff's counsel argued,
[N]ow that I've seen the medical workup that's in this file, and now that I've seen the ALJ's decision [of September 1998], I have serious consider — concerns for whether or not all of the claimant's medical conditions, to and including that which he got benefits for back in `89, `90, `91, `92, `93, were properly before the Judge in Chicago, because, while I've seen the decision, I haven't seen the Exhibit list, and certainly haven't seen the Exhibit file. And it gives me serious concerns about whether or not there might be new and material evidence relating to the 1996 application, which was denied at the hearing in 1998, and we can't make any or — any of — any meaningful or knowledge [sic] decisions about whether or not there is an opportunity to reopen a prior application, even though it terminated in a hearing decision, without seeing what was the basis for that decision. And that's why I'm asking for a continuance.
(Tr. at 42.) The ALJ's denial of the plaintiff's the request for a continuance (see id. at 43) and subsequent decision not to request the records associated with the 1996 application (see id. at 22) prevented the plaintiff from determining whether or not he should seek a reopening of that application.
The defendant argues that the ALJ's assumption regarding the plaintiff's "healthy musculoskeletal system" (Tr. at 22) amounts to an implied determination that the evidence did not warrant a reopening of the prior applications. (See Def.'s Br. at 12.) I disagree. Although the ALJ noted that the plaintiff requested a continuance to determine whether other applications could be reopened (see Tr. at 21), her decision fails to address the plaintiff's "reopening" concerns, (see generally id. at 21-31). Instead, the ALJ found only "that the prior applications and files are [not] necessary in order to adjudicate this 5th and current application and would only cause undue delay in processing this latest application." (Id. at 22 (emphasis added).) While the defendant is correct that judicial review of a decision by the Commissioner not to reopen a prior claim is not generally available, in this case there has been no decision, implied or otherwise, that the plaintiff's previous applications cannot be reopened. The reopening issue was simply not addressed. I find that the ALJ's failure to obtain the files associated with the plaintiff's 1996 application unfairly prevented the plaintiff from putting forth an argument in favor of reopening that application, and thereby deprived the plaintiff of a full and fair hearing.
The Supreme Court has stated that section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), does not authorize "judicial review of alleged abuses of agency discretion in refusing to reopen claims for social security benefits." Califano v. Sanders, 430 U.S. 99, 108 (1977). Judicial review is only available in "those rare instances where the [Commissioner's] denial of a petition to reopen is challenged on constitutional grounds." Id. at 109.
For the foregoing reasons, the ALJ's decision not to seek to obtain the files associated with the plaintiff's prior claims for benefits resulted in unfair prejudice to the plaintiff. See Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993). I therefore conclude that the ALJ breached her duty to fully and fairly develop the record, see Battles v. Shalala, 36 F.3d 43, 44 (8th Cir. 1994), and that this case must be remanded to the Commissioner for further proceedings.
B. The Opinion of the Plaintiff's Treating Physician
As I noted in my review of the plaintiff's medical history (see supra Part III), the plaintiff submitted a "Medical Impairment Evaluation" (see Tr. at 628-30) and a "Physical Capacities Evaluation" (see Tr. at 631-33) for consideration by the Appeals Council during its review of the ALJ's decision. These evaluations were performed by the plaintiff's treating physician, Dr. Bence. (See Tr. at 628-33.) Dr. Bence opined, inter alia, that the plaintiff retained the ability to sit for two hours, stand for two hours, and walk for one hour in a normal workday. (See Tr. at 631.) The plaintiff argues that the Appeals Council erred by failing to modify the ALJ's residual functional capacity assessment in light of Dr. Bence's opinions and by failing to accord significant, if not controlling, weight to Dr. Bence's opinions. (See Pl.'s Br. at 14-21.)
In cases involving the submission of supplemental evidence subsequent to the ALJ's decision, the record includes that evidence submitted after the hearing and considered by the Appeals Council. See Jenkins v. Apfel, 196 F.3d 922, 924 (8th Cir. 1999) (citing Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994)). Thus, in situations such as the present, this court's role is to determine whether the ALJ's decision "is supported by substantial evidence on the record as a whole, including the new evidence submitted after the determination was made." Riley, 18 F.3d at 622. In practice, this requires this court to decide how the ALJ would have weighed the new evidence had it existed at the initial hearing. See id.
United States v. Bergmann, 207 F.3d 1065, 1068 (8th Cir. 2000). In this case, the Appeals Council indicated that it considered all of the evidence submitted by the plaintiff after the hearing. (See Tr. at 11 ("Evidence in addition to that which was before the Administrative Law Judge has been received by the Appeals Council and is hereby made a part of the record."); see also id. at 9 ("The Appeals Council has also considered . . . the additional evidence identified on the attached Order of the Appeals Council [Tr. at 11]. . . .").) Thus, the record now arguably includes all of this evidence. United States v. Bergmann, 207 F.3d 1065, 1068 (8th Cir. 2000) (citing Jenkins v. Apfel, 196 F.3d 922, 924 (8th Cir. 1999)). However, the defendant argues that much of the evidence submitted to the Appeals Council should not be considered because it concerns "after-acquired conditions or post-decision deterioration of a pre-existing condition." (Def.'s Br. at 13, 15 (citing Bergmann, 207 F.3d at 1069-70).)
The defendant's argument is not without merit. 20 C.F.R. § 404.970(b) states,
If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision. The Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the administrative law judge hearing decision.
As the defendant correctly argues, "material" evidence "must be relevant to claimant's condition for the time period for which benefits were denied" and "must not merely detail after-acquired conditions or post-decision deterioration of a pre-existing condition." United States v. Bergmann, 207 F.3d 1065, 1069-70 (8th Cir. 2000). It seems to me that much of the evidence submitted by the plaintiff to the Appeals Council concerns after-acquired conditions or post-decision deterioration of his pre-existing condition. For example, the injuries sustained by the plaintiff in motor vehicle accidents might fall within either of these categories, depending upon whether these injuries exacerbated his pre-existing condition. (See Tr. at 442-446, 506.) Therefore, the Appeals Council's decision to receive and consider all of the additional evidence submitted by the plaintiff was not consistent with the Eighth Circuit's interpretation of section 404.970(b). See Bergmann, 207 F.3d at 1069-70. However, the evaluations submitted by Dr. Bence present specific findings and conclusions that are not merely cumulative of other evidence in the record, and they are relevant to the plaintiff's condition during the time period for which benefits were denied. See id. Dr. Bence's evaluations are therefore "new and material evidence" within the meaning of section 404.970(b) and were properly considered by the Appeals Council.
The "Medical Impairment Evaluation" indicates that Dr. Bence began his treatment of the plaintiff in March 1999, and that the "evaluation period" spanned from November 4, 1998, through September 28, 2000. (See Tr. at 628, 630.) To refresh, the ALJ's decision was issued on October 26, 1999. Therefore, the evaluations "relate to the period on or before the date of the [ALJ's] hearing decision." 20 C.F.R. § 404.970(b). The fact that the evaluation period extends beyond the date of the hearing decision and the fact that the evaluation was completed subsequent to the hearing decision do not affect the materiality of Dr. Bence's evaluations. See, e.g., United States v. Bergmann, 207 F.3d 1065, 1070 (8th Cir. 2000) (finding that doctor's report dated subsequent to the hearing decision was material). The defendant points out that the evaluations contain opinions that are partly retrospective, since the designated evaluation period begins prior to Dr. Bence's first treatment of the plaintiff in March 1999. (See Def.'s Br. at 14.) However, it seems to me that the defendant's observation is relevant to the weight to be accorded to Dr. Bence's opinions, as opposed to their materiality.
Since Dr. Bence's evaluations are properly included in the record, I must now determine "how the ALJ would have weighed the new evidence had it existed at the initial hearing." United States v. Bergmann, 207 F.3d 1065, 1068 (8th Cir. 2000) (citing Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994)). The Eighth Circuit has noted that "[i]t is well-settled that a treating physician's opinion is entitled to substantial weight `unless it is unsupported by medically acceptable clinical or diagnostic data.'" Id. at 1069 (quoting Kirby v. Sullivan, 923 F.2d 1323, 1328 (8th Cir. 1991)). See also 20 C.F.R. § 404.1527(d); id. § 416.927(d). Here, as in Bergmann, it is undisputed that Dr. Bence is the plaintiff's treating physician, and the Commissioner has not argued that Dr. Bence's opinions are not supported by medically acceptable clinical or diagnostic data. See Bergmann, 207 F.3d at 1069. Therefore, Dr. Bence's evaluations are entitled to great weight.
It remains to be determined whether, in view of Dr. Bence's opinions, the functional capacity assessment adopted by the ALJ is supported by substantial evidence. The ALJ concluded that "the evidence" shows that the plaintiff "would be able to stand and walk for approximately six hours in an eight hour work day" and "would be able to sit for approximately six hours in an eight hour work day." (Id. at 28.) The ALJ did not specifically identify any evidence that supports her conclusions, and therefore I cannot find that those conclusions are supported by substantial evidence. I find that in view of the weight that must be accorded to Dr. Bence's opinion, if Dr. Bence's opinion had been available for consideration by the ALJ, the ALJ would have determined that the plaintiff retained only the ability to sit for two hours, stand for two hours, and walk for one hour in a normal workday, (see Tr. at 631). No other conclusion would be supported by substantial evidence.
In studying the record I have discovered that the ALJ conclusions are consistent with the residual functional capacity assessments performed by two non-treating physicians who evidently did not personally examine the plaintiff. (See id. at 256-71.) However, "[t]he opinion of a consulting physician who examines a claimant once or not at all does not generally constitute substantial evidence." Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999) (quoting Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998)). In view of Dr. Bence's assessment of the plaintiff's residual functional capacity, I have no difficulty concluding that the assessments of the non-treating physicians do not amount to substantial evidence. See id. (citing Henderson v. Sullivan, 930 F.2d 19, 21 (8th Cir. 1991). In other words, even if the ALJ had specifically relied upon the assessments of the non-treating physicians in her decision, I would conclude that her adoption of those assessments is not supported by substantial evidence.
It should be noted that since the vocational expert's testimony that the plaintiff was capable of performing a certain range of light jobs was based upon the unsupported conclusion that the plaintiff retained the capacity to sit or stand for six hours in an eight hour workday (see id. at 94-97), the expert's testimony cannot constitute substantial evidence that the plaintiff could perform substantial gainful activity other than his past relevant work. See Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999) (citing Ness v. Sullivan, 904 F.2d 432, 436 (8th Cir. 1990)). This means that the Commissioner has failed to satisfy her burden at step five of the sequential analysis described above. (See supra Part II; infra Part IV.D.) I shall discuss the vocational expert's testimony in further detail below. (See supra Part IV.D.)
The ALJ stated that the vocational expert testified that the plaintiff could perform the "full range of light jobs." (Tr. at 29.) In fact, the vocational expert specifically stated that the plaintiff could not perform the full range of light work. (See id. at 95.)
C. The ALJ's Credibility Determination
The plaintiff next argues that the ALJ improperly determined that the plaintiff's complaints of pain were not credible.
In analyzing a claimant's subjective complaints of pain, an ALJ must examine: (1) the claimant's daily activities; (2) the duration, frequency, and intensity of the pain; (3) dosage, effectiveness, and side effects of medication; (4) precipitating and aggravating factors; and (5) functional restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). Other relevant factors include the claimant's relevant work history and the absence of objective medical evidence to support the complaints. See id. The ALJ may discount subjective complaints of pain if inconsistencies are apparent in the evidence as a whole. See Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998).
Cox v. Apfel, 160 F.3d 1203, 1207 (8th Cir. 1998). If an ALJ adequately explains and supports her credibility determination by acknowledging and examining the considerations set forth in Polaski and by citing inconsistencies in the record, her credibility determination will not be disturbed. See Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000). However, the ALJ's credibility determination must be supported by substantial evidence. See, e.g., Cline v. Sullivan, 939 F.2d 560, 565 (8th Cir. 1991).
Citing Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984), the ALJ set forth three reasons for discounting the plaintiff's subjective complaints. (See Tr. at 23-27.) First, the ALJ stated that the plaintiff's work history was poor. (See id. at 24.) As I noted previously, I have misgivings about the ALJ's decision to weigh the plaintiff's work history against the plaintiff's credibility due to the fact that the ALJ has failed to develop the record concerning the plaintiff's medical history prior to November 1998. (See supra Part IV.A.) I do not believe that the ALJ can properly use the plaintiff's work history to discount his subjective complaints under these circumstances.
Second, the ALJ stated that "the record contains no reported `observations' of third parties including treating physicians and consulting physicians concerning the Claimant's daily activities; the duration, frequency, and intensity of his alleged symptoms; precipitating and aggravating factors; functional restrictions; etc.," and suggested that even if such evidence were available, recorded observations by physicians "would have little probative value." (Tr. at 24.) On the contrary, the record does contain probative statements by third parties concerning the plaintiff's functional restrictions; the duration, frequency, and intensity of the plaintiff's symptoms; and his medication dosages. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). For example, Dr. Pattee recommended that the plaintiff avoid physical activities and take care when lifting, bending, or otherwise exerting himself, and noted that the plaintiff wore a cervical collar and used a cane when walking. (Id. at 242. See also id. at 349 (describing plaintiff's reliance upon a cane).) Also, Mr. Ward opined that the plaintiff could not work for more than two hours a day, three days per week. (Id. at 382.) Dr. Pattee, Dr. Bence, Ward, and the physical therapy records all provide some documentation of the plaintiff's pain and weakness. (See, e.g., id. at 225, 242, 248, 253, 349, 381, 383. See also id. at 629.) The records also describe the medications taken by the plaintiff. (See, e.g., id. at 340, 383, 388, 393, 616. See also id. at 629.) In sum, I find that the ALJ's determination that the record contains none of the third-party observations described in Polaski is not supported by substantial evidence. Furthermore, it seems that the ALJ ignored a substantial quantity of evidence when evaluating the plaintiff's credibility.
Third, the ALJ determined that the plaintiff's subjective complaints were not credible because they were supported by objective medical evidence. (See Tr. at 24-27.) The ALJ presented five observations in support of this determination. First, the ALJ reviewed the available medical evidence from July 1988 through September 1999 to search for inconsistencies. (See id. at 24-27.) Given the ALJ's previous determination that the evidence predating the plaintiff's November 1998 injury was not pertinent and that, therefore, she need not request the records from the plaintiff's previous applications for disability benefits (see id. at 22), it seems to me that the ALJ's consideration of the pre-1998 evidence here presents another example of the unfair prejudice caused by the ALJ's failure to fully and fairly develop the record. (See supra Part IV.A.) Furthermore, it must be noted that the ALJ only questioned the plaintiff about the pain and numbness he has experienced since his November 1998 injury. (See Tr. at 47-91.) Nevertheless, she found that his testimony was not credible because he was capable of performing heavy labor before his November 1998 injury. (See id. at 27 ("[F]ollowing the last Administrative [L]aw Judge denial the claimant went on to do heavy to very heavy work for at least six months.").) In other words, the ALJ used records predating the plaintiff's most recent injury in order to discredit his testimony concerning that injury. Although I cannot say that such an analysis would be unacceptable under all circumstances, in this case I find that the ALJ's attempt to use records predating the plaintiff's November 1998 injury to attack the plaintiff's credibility was improper.
Second, the ALJ stated that, although the plaintiff "undoubtedly has suffered from discomfort[, he] has only received conservative treatment for his neck contusion and fracture and he appears to have responded to that treatment." (Tr. at 27.) While it is true that the plaintiff's November 1998 injury was not treated with surgery, the record indicates that the plaintiff has undergone extensive physical therapy, including two weeks of inpatient physical therapy in Grand Island, Nebraska. (See id. at 223-40, 349.) I also note that Dr. Bence opined that the plaintiff's condition had not improved since his impairment first developed. (See id. at 629.) However, while I might not characterize the plaintiff's treatment regimen as "conservative," there appears to be substantial evidence in the record, including the opinions of treating physicians other than Dr. Bence, which supports the ALJ's conclusion that the plaintiff's condition did respond to non-surgical treatment. (See, e.g., id. at 242, 393.) Therefore, there is some support for the ALJ's determination that the plaintiff's complaints were not supported by objective medical evidence.
Third, ALJ found that the plaintiff "does not appear to have given full effort in attempts to gauge his functional limitations," and therefore, presumably, he is not credible because his complaints are not supported by objective medical evidence. (Tr. at 27.) This finding is not supported by evidence, and therefore it does not support the ALJ's decision to discount the plaintiff's testimony.
Fourth, the ALJ suggested that the plaintiff's testimony was not credible because, "At the hearing, the Claimant had no difficulty concentrating on the proceedings and answered all questions in a logical and concise manner." (Id.) I fail to see how this observation exposes an inconsistency in the plaintiff's testimony, since the plaintiff apparently did not claim that his pain and numbness specifically affects his ability to concentrate. Furthermore, since the plaintiff's demeanor while testifying is to be considered as a part of the credibility determination, see Johnson v. Apfel, 240 F.3d 1145, 1147-48 (8th Cir. 2001), I note that the ALJ seems to have ignored the fact that the plaintiff had difficulty sitting still and began to feel numbness while testifying. (See id. at 81, 83, 88.) For these reasons, substantial evidence does not support the ALJ's conclusion that the plaintiff's demeanor was inconsistent with his testimony.
Finally, the ALJ found that the plaintiff's complaints are not supported by objective medical evidence because there is "no evidence of a psychological disorder which could serve as a basis of Mr. Bradford's alleged disability." (Tr. at 27.) This appears to be a true statement, and it therefore supports the ALJ's credibility determination. However, based upon my analysis of the ALJ's three main reasons for discrediting the plaintiff's complaints of pain and numbness (i.e., (1) the plaintiff's poor work history; (2) the absence of observations regarding the duration, frequency, and intensity of the plaintiff's symptoms, any precipitating and aggravating factors, the plaintiff functional restrictions, and the plaintiff's medication and treatment; and (3) the lack of objective medical evidence supporting the plaintiff's complaints), the only evidence that supports the ALJ's credibility decision is the absence of a "psychological disorder which could serve as a basis of Mr. Bradford's alleged disability," (Tr. at 27), and the fact that the plaintiff showed improvement without undergoing surgical treatment. This evidence, which reduces to a finding that the plaintiff's testimony was not supported by objective medical findings, is not enough to justify discrediting the plaintiff's subjective complaints of pain. "[O]bjective medical evidence is not needed to support subjective testimonial evidence of pain and an ALJ may not base a denial of benefits solely on a lack of objective medical evidence." Cline v. Sullivan, 939 F.2d 560, 566 (citing Polaski v. Heckler, 751 F.2d 943, 953 (8th Cir. 1984) [sic]; Tome v. Schweiker, 724 F.2d 711, 713 (8th Cir. 1984).) Although the ALJ "[did] not purport to rely solely on the alleged absence of supportive medical evidence to discredit [the plaintiff's] allegations of pain," "the net result of [my] inquiry is that the [absence of] medical evidence stands alone as a potential justification" for the ALJ's credibility determination. Cline, 939 F.2d at 567. Under these circumstances, it is clear that the ALJ's decision to discount the plaintiff's subjective complaints of pain and numbness was erroneous. See, e.g, Cline, 939 F.2d at 567; Tome v. Schweiker, 724 F.2d 711, 713 (8th Cir. 1984).
A citation to Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) was probably intended here.
D. The Hypothetical Posed to the Vocational Expert
The plaintiff was found not to be disabled at step five of the five-step analysis set forth earlier in this memorandum. (See supra Part II. See also Tr. at 29, 30.) To refresh, at step five the ALJ must consider the claimant's residual functional capacity, age, education, and past work experience to determine whether the claimant can do work other than that which the claimant has done in the past. See 20 C.F.R. § 404.1520(f)1); id. § 416.920(f)(1). It must also be recalled that the Commissioner bears the burden of establishing that the plaintiff can perform such work. See, e.g., Nettles v. Schweiker, 714 F.2d 833, 836 (8th Cir. 1983). In finding the plaintiff not disabled at step five, the ALJ relied upon the testimony of a vocational expert to establish that, given the plaintiff's residual functional capacity, there are thousands of jobs that the plaintiff is capable of performing. (See Tr. at 29, 95-97.) Specifically, the ALJ asked the vocational expert whether the plaintiff could return to his past work if he "could occasionally lift or carry 20 pounds, frequently lift or carry 10 pounds, if he could stand and or walk with normal breaks for six hours out of an eight hour work day, if he could sit with normal breaks for six hours out of an eight hour work day, had no limitations in pushing or pulling, but could only do postural activities on an occasional basis, and I'm referring to climbing, balancing, stooping, kneeling, crouching, crawling. . . ." (Id. at 94.) The vocational expert responded that the plaintiff could not return to his past work given these limitations. (See id.) However, the expert also testified that although the plaintiff would not be able to perform a full range of light work, there are ten thousand jobs in the state of Nebraska that the plaintiff could perform. (See id. at 95.) The ALJ next asked the vocational expert whether the plaintiff could perform any light, unskilled jobs if the plaintiff's testimony were deemed credible. (See id.) To this, the vocational expert responded, "No, he cannot," and provided specific "vocationally significant reasons" to support her answer. (Id. at 95-96.)
The plaintiff argues that the hypothetical presented by the ALJ did not precisely and accurately describe the limitations imposed by his injury, and that the testimony of the vocational expert therefore cannot constitute substantial evidence that the plaintiff is able to perform certain jobs.
The plaintiff is correct that "in order for the testimony of a vocational expert to qualify as substantial evidence, the hypothetical question posed to the expert must precisely describe the claimant's impairments." Whitmore v. Bowen, 785 F.2d 262, 263 (8th Cir. 1986). See also Newton v. Chater, 92 F.3d 688, 694-95 (8th Cir. 1996) ("A hypothetical question must precisely describe a claimant's impairments so that the vocational expert may accurately assess whether jobs exist for the claimant." (citation omitted)). However, "a hypothetical need only include impairments that are supported by the record and which the ALJ accepts as valid." Young v. Apfel, 221 F.3d 1065, 1069 (8th Cir. 2000).
Preliminarily, I note that since the ALJ's decision to discount the plaintiff's testimony was not supported by substantial evidence (see supra Part IV.C), the hypothetical posed to the vocational expert is deficient because the limitations contained within it are inconsistent with the plaintiff's testimony. Indeed, the vocational expert's testimony establishes that if the plaintiff's testimony were deemed credible, the plaintiff would be incapable of performing any of the ten thousand light, unskilled jobs that she previously identified. (See Tr. at 95-96.) Furthermore, for the following reasons, I find that even if the ALJ properly discredited the plaintiff's testimony regarding his pain and functional limitations, the hypothetical is flawed in that it appears to be based on an inadequate residual functional capacity assessment.
The ALJ "`bears the primary responsibility for assessing a claimant's residual functional capacity based on all relevant evidence. . . .'" Lauer v. Apfel, 245 F.3d 700, 703-04 (8th Cir. 2001) (quoting Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir. 2000)). According to the Eighth Circuit, "a `claimant's residual functional capacity is a medical question.'" Id. (quoting Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000)). Thus, "`some medical evidence' . . . must support the [ALJ's] determination of the claimant's residual functional capacity, and the ALJ should obtain medical evidence that addresses the claimant's `ability to function in the workplace.'" Id. (quoting Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir. 2000) (per curiam); Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000)).
As I discussed above (see supra Part IV.B), the ALJ did not identify the evidence supporting her decision to use the limitations outlined in the hypothetical that was presented to the vocational expert. (See Tr. at 28.) Therefore, I cannot determine whether her assessment of the plaintiff's residual functional capacity was based upon any medical evidence at all. Under these circumstances, the ALJ's residual functional capacity assessment is not supported by substantial evidence. See, e.g., Lauer v. Apfel, 245 F.3d 700, 703-04, 705-706 (8th Cir. 2001).
I have also explained that, even if the ALJ's residual functional capacity assessment were based on the Physical Residual Functional Capacity Assessments completed in March and April 1999 (compare Tr. at 256-71 with id. at 28), these assessments do not constitute substantial evidence in support of the ALJ's assessment. (See supra Part IV.B.) See also Lauer v. Apfel, 245 F.3d 700, 705 (8th Cir. 2001) ("Generally, even if a consulting physician examines a claimant once, his or her opinion is not considered substantial evidence, especially if, as here, the treating physician contradicts the consulting physician's opinion."); Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998) ("The opinion of a consulting physician who examines a claimant once or not at all does not generally constitute substantial evidence."); O'Leary v. Schweiker, 710 F.2d 1334, 1341 (8th Cir. 1983) ("Because of the interpretive problems inherent in the use of forms such as the physical capacities checklist, our Court has held that while these forms are admissible, they are entitled to little weight and do not constitute `substantial evidence' on the record as a whole." (citations omitted)).
As I indicated above, the record now contains the plaintiff's treating physician's opinion that the plaintiff can only sit for two hours, stand for two hours, and walk for one hour in a normal workday. (See Tr. at 631; see also supra Part IV.B.) In view of this evidence and the other evidence in the record, including the plaintiff's own testimony and the documentation of the plaintiff's medications, physical therapy, and use of assistive devices, I find that the record does not support the ALJ's assessment as to the degree to which the plaintiff's impairment affects his residual functional capacity. Furthermore, since the vocational expert's testimony was based on the ALJ's unsupported assessment, I also find that the expert's testimony was not substantial evidence that the plaintiff could perform any substantial gainful activity. See Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999).
The evidence indicates that the plaintiff needed to use a cane when walking. (See, e.g., Tr. at 65, 242, 349, 629.) The ALJ's hypothetical failed to mention this functional limitation, and was therefore flawed. See Whitmore v. Bowen, 785 F.2d 262, 263 (8th Cir. 1986); Newton v. Chater, 92 F.3d 688, 694-95 (8th Cir. 1996). I note too that the vocational expert testified that if the plaintiff needed to use a cane for balance, it would eliminate the plaintiff's ability to perform light work with a sit or stand option. (See Tr. at 96-98.)
V. CONCLUSION
In this case the ALJ failed to fairly and fully develop the record with respect to the plaintiff's Title II claim, improperly discredited the plaintiff's testimony regarding his subjective complaints of pain, and embraced an inadequate and unsupported functional capacity assessment. I also find that if the opinion of Dr. Bence were before the ALJ, the ALJ would have given that opinion great weight. Dr. Bence's opinion would have bolstered the credibility of the plaintiff and would have provided substantial evidence in support of an assessment of the plaintiff's capabilities that differs significantly from the unsupported functional capacity assessment adopted by the ALJ.
The total record convincingly establishes that the plaintiff was disabled as of November 23, 1998, which the plaintiff identifies as his protective filing date. It is therefore appropriate for me now to order benefits going forward from November 23, 1998. See, e.g., Cline v. Sullivan, 939 F.2d 560, 569 (8th Cir. 1991). In addition, the case must be remanded for further proceedings to permit the full and fair development of the plaintiff's Title II claim.
IT IS ORDERED that the Commissioner of Social Security's decision is reversed, and the case is remanded to the Commissioner with directions to award benefits to the plaintiff in the appropriate amount and to conduct further proceedings consistent with the memorandum accompanying this order.