Opinion
Civil Action No. SA: 04-CA-0695-XR.
August 4, 2005
ORDER
On this date the Court considered Plaintiff's appeal of an adverse disability determination by the Social Security Administration and Plaintiff's objections to the Report and Recommendation of the United States Magistrate Judge that her appeal be denied. After careful consideration of the record and Plaintiff's objections, the Court SUSTAINS Plaintiff's objections, REVERSES the Administrative Law Judge's ruling and ORDERS that this case be REMANDED to the Social Security Administration for a new hearing.
I. Background
Plaintiff was 45 years old at the date of the hearing. She has a high school education and completed less than 2 years of college. Plaintiff was previously employed as a legal assistant. Her alleged disability began on August 15, 2000, because she suffered from Raynaud's phenomenon, fibromyalgia, missed connective tissue disease, lupus, and rheumatoid arthritis. Plaintiff has not been employed since her alleged onset date. Plaintiff stated in September of 2000 that this was a result of her work day being increased from 6.5 to 8 hours per day, which she could not handle on account of fatigue. Her previous employer noted that Plaintiff had difficulty typing, due to her fingers becoming blue and numb.
The National Institute of Arthritis and Musculoskeletal and Skin Diseases (NIAMS) defines Raynaud's phenomenon as a disorder that causes constriction of blood vessels in the extremities. Blood supply is greatly decreased and the skin can change color. Cyanosis (blueness) may appear because the fingers or toes do not get enough oxygen-rich blood, resulting in coldness and numbness.
Plaintiff complains of numerous physical limitations. Dr. Thomas Mieras diagnosed Plaintiff with fibromyalgia on January 12, 1999, noting multiple trigger points. Plaintiff was admitted to the hospital on December 9, 1999 for pain and swelling in her foot, and she was diagnosed with right ankle arthralgia. Dr. Michelle Scanlan, Plaintiff's treating physician, diagnosed Plaintiff with Raynaud's phenomenon and treated her for that problem beginning in May 2000. Dr. Joe Cole, a rheumatologist referred to Plaintiff by Dr. Scanlan, diagnosed severe fibromyalgia with multiple trigger points, depression, and arthralgias on September 28, 2000. On December 29, 2000, Dr. Cole included Raynaud's as the cause of Plaintiff's finger pain and swelling.
On February 20, 2001, Plaintiff was diagnosed at the emergency room with an exacerbation of her connective tissue disorder, indicated by swelling in her left foot. At an April 16, 2001 internal medicine consultative examination, Dr. Sabine Ross found that Plaintiff suffered from rheumatoid arthritis in her right hand and complained of body aches consistent with fibromyalgia. Plaintiff also complained of low back pain but was able to bend forward without difficulty. Laboratory tests also failed to support a finding of active collagen tissue disease. On May 30, 2001, Dr. Cole noted severe fibromyalgia, sleep disturbance, Raynaud's and Gastrointestinal Reflux Disease. Plaintiff was diagnosed with painful extremities and parasthesia during an April 8, 2002 emergency room visit. Further, Dr. Scanlan indicated in October 2002 that Plaintiff continued to have symptoms of Raynaud's, depression and widespread pain due to fibromyalgia. She wrote a letter in January 2003 stating that Plaintiff was a candidate for disability, but did not see Plaintiff again after October 23, 2002. While hospitalized for psychiatric reasons in February and March 2003, Plaintiff's fingers exhibited symptoms of Raynaud's phenomenon and she was diagnosed with Scleroderma. On May 7, 2003, Plaintiff was diagnosed at the rheumatology clinic with Scleroderma with secondary Raynaud's. On May 22, 2003, she was diagnosed with a small airway disease. On November 26, 2003, Plaintiff was diagnosed with systemic Scleroderma, interstitial lung disease, fibromyalgia, Raynaud's phenomenon and bipolar disorder.
The NIAMS describes Scleroderma as a symptom of a group of diseases involving abnormal growth of connective tissue. Scleroderma is a hardening of the skin that in some cases affects blood vessels and internal organs, such as the heart, lungs, and kidneys. Systemic Scleroderma is the term for the disease that includes not only the skin, but the tissues beneath to the blood vessels and major organs. There are two types of Systemic Scleroderma, Limited and Diffuse. Limited Scleroderma may manifest itself as Raynaud's phenomenon for years before skin thickening starts. Diffuse Scleroderma typically comes on suddenly and skin thickening occurs quickly over a wide area of the body. People with the diffuse disease are often tired, lose appetite and weight, have joint swelling and/or pain, and have irritated skin.
In addition to her physical ailments, Plaintiff complains of psychological problems. A psychiatric evaluation with Dr. John Harris in April 2001 indicated that Plaintiff had moderate dysthymia and moderate generalized anxiety disorder. Dr. Harris gave her a global assessment of function (GAF) of 50 to 59. In March 2002, Plaintiff had a psychiatric hospitalization at which she was diagnosed with a bipolar disorder and alcohol dependence. She was again hospitalized from February 26 to March 6, 2003 for psychiatric problems and detoxification; the record indicates that she had stopped taking the bipolar medication prescribed to her during her previous hospitalization. She stated that the medicine, Depakote, helped with mood stabilization but that she ceased taking it because it was causing hair loss. Plaintiff was admitted with a GAF of 20 and discharged with a GAF of 40, with a diagnosis of Bipolar II, MRE depressed, alcohol dependence, and marijuana abuse. Dr. Fermin Sarabia indicated on March 27, 2003 that he was treating Plaintiff's bipolar disorder and that the problem rendered her unable to hold productive employment.
Plaintiff has a history of substance abuse, primarily with alcohol. She also admitted to occasionally smoking marijuana and she tested positive for cocaine in March 2003. Plaintiff admitted to attempting suicide while intoxicated several times in the past and has never received treatment for alcohol abuse other than the detoxification in February 2003.
A vocationalexpert testified at Plaintiff's administrative hearing. The vocational expert stated that Plaintiff would be able to make a vocational adjustment to other work, such as an assembler, a cashier (self-service gas station), or a surveillance camera monitor, based on her RFC and other vocational factors. The vocational expert also testified that such jobs existed in significant numbers in the national economy.
II. Procedural History
Plaintiff filed an application for disability benefits on January 11, 2001. Her application was denied on May 21, 2001 and again, on reconsideration on August 28, 2001. Administrative Law Judge (ALJ) Jonathan P. Blucher issued a third denial on September 25, 2003 after hearings conducted on January 10, 2003, April 3, 2003 and July 1, 2003. Plaintiff then filed an appeal to the Appeals Council on November 25, 2003, but her request for review was denied. The instant action was filed on August 4, 2004. Plaintiff alleged that the ALJ failed to properly evaluate the evidence and that the decision contained errors of law. On June 10, 2005, United States Magistrate Judge Pamela A. Mathy filed a Report and Recommendation that the judgment of the ALJ be affirmed. Plaintiff objected on the basis that the ALJ failed to properly consider the evidence.
III. Analysis
The Court reviews de novo those portions of the Report and Recommendation to which objection is made. See 28 U.S.C. § 636(b)(1). Such a review means that the Court will examine the entire record and will make an independent assessment of the law. However, in examining the Commissioner's decision denying disability insurance benefits, the Court is limited to a determination of whether substantial evidence supports the decision and whether the Commissioner applied the proper legal standards in evaluating the evidence. Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995). In this case, Plaintiff objects on the basis of a lack of substantial evidence to support the decision of the ALJ.
"Substantial evidence is more then a scintilla, less then a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). When substantial evidence supports the Commissioner's findings, they are conclusive and must be affirmed. Martinez, 64 F.3d at 173. Four elements are weighed by the Court in determining whether the Commissioner's decision is based on substantial evidence: (1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) the claimant's age, education, and work experience. Id. at 174. While a de novo review may result in the Court reaching a different ultimate conclusion, conflicts in the evidence are to be resolved by the Commissioner. Id.
The Social Security Administration has set out a five-step process to evaluate disability claims. 20 C.F.R. §§ 404.1520, 416.920. The first step is to determine whether the claimant is currently employed in substantial gainful activity. If so, the claimant is not disabled. The second step is to determine whether the claimant's impairment is severe. Only a severe impairment allows for advancement to step three. During step three, the severe impairment is compared with a list of specific impairments. If the claimant's impairment meets or medically equals one of the listed impairments, the plaintiff is disabled. Otherwise, the analysis must progress to step four, at which point the Commissioner determines whether, in light of the claimant's residual functional capacity (RFC), the impairment precludes a claimant from returning to her past relevant work. Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir. 1999). If it is determined that the claimant cannot return to her past relevant work, the burden of proof shifts to the Commissioner during step five to show that the impairment does not prevent the claimant from performing other jobs that exist in significant numbers in the national economy, considering residual capacities, age, education and work experience. Id. If the Commissioner carries this burden, the burden shifts back to the claimant to prove that she is unable to perform the alternative work. Id.
Plaintiff correctly notes that the pertinent section of the Social Security Act for this objection is that which provides that the Court has the power, based upon the pleadings and the transcript of administrative record, to enter a judgment affirming, modifying or reversing the decision of the Commissioner, with or without remanding the cause for a rehearing. 42 U.S.C.A § 405(g).
Plaintiff submitted new evidence to the ALJ after her hearing but before his decision in her case, and also to the Appeals Council after the ALJ's decision. The Appeals Council must consider additional evidence where it relates to the period on or before the date of the ALJ's decision. 20 C.F.R 404.970(b). The evidence submitted must be both new and material. Id. If new and material evidence was properly presented to and considered by the Appeals Council, the Court should consider that evidence as part of the entire record even if the Appeals Council denied review. Rodriguez v. Barnhart, 252 F.Supp.2d 329, 335 (S.D. Tex. 2003). The Commissioner's decision does not become final until the Appeals Council makes its conclusion about the claimant's case. Id. at 333. "When the Appeals Council denies review, the ALJ's decision becomes the final decision, but the Court should still consider the entire record, including the new evidence considered by the Appeals Council, when reviewing the ALJ's decision." Id. at 336. In other words, a final decision includes the Appeals Council's denial of review and evidence submitted to the Appeals Council is to be considered part of the record for the Court's review. Higginbotham v. Barnhart, 405 F.3d 332, 337-38 (5th Cir. 2005).
In the case at bar, the ALJ determined that Plaintiff failed at the fifth step in the process of evaluation of disability claims. The ALJ noted that other sufficient light employment existed in sufficient numbers in the national economy for Plaintiff to find a job, but Plaintiff objects that not all the evidence was considered in determining her RFC. Magistrate Judge Mathy stated that the ALJ considered all of plaintiff's subjective allegations of pain and other symptoms in accordance with SSR 96-7p. However, the Court finds no indication that the ALJ and the Appeals Council properly considered the evidence that Plaintiff was diagnosed with Scleroderma and small airway disease in May of 2003, before the ALJ's decision of September 25, 2003. Pain was not the only, or even the primary, consideration as to the diagnoses of Scleroderma and lung disease. In addition, other seemingly serious symptoms elucidated by the new evidence were never mentioned by the ALJ.
Furthermore, there is no indication that there was any consideration of the further diagnoses of diffuse systemic Scleroderma and interstitial lung disease on November 26, 2003, despite the fact that the Appeals Council added the information to the record and indicated in their denial form letter that they reviewed it. The Court believes that this evidence was new, material, and related to the period before the ALJ's decision. Though the Appeals Council stated that it considered the evidence, there is no specific mention of the Plaintiff's newly diagnosed conditions, and the Appeals Council did not delineate why they rejected review after examining the new evidence or give any indication that they actually did consider the evidence.
Upon examination of the evidence presented to the ALJ and Appeals Council that is part of the record, the Court finds that it is reasonable to conclude that this evidence could have changed the ALJ's decision had it been properly considered. In May 2003, Plaintiff complained of coughing and wheezing, which was found to be due to small airway lung disease. In November 2003, after the ALJ hearing, Plaintiff visited the emergency room and fluid was found in her esophagus, consistent with Scleroderma. She was later diagnosed with diffuse systemic Scleroderma and interstitial lung disease. In addition to not mentioning the diagnoses, neither the ALJ nor the Appeals Council made any mention of the symptoms, namely chronic coughing and shortness of breath. In fact, the ALJ never mentioned Scleroderma as an ailment, though the record shows that Plaintiff was diagnosed with it as early as March 2003, before Plaintiff's hearing in April. Evidently the May 2003 diagnosis was submitted before the ALJ reached its decision, because it is included in the record and otherwise would have been specified on the list of new evidence submitted to the Appeals Council, which offers proof of Plaintiff's Scleroderma worsening. Furthermore, Plaintiff claims that she was undergoing chemotherapy as of December 2, 2003 to treat her Scleroderma, which had apparently spread to her lungs and esophagus.
Considering that the ALJ did not mention the lung and esophageal ailments at all, and that they have developed or worsened according to new evidence submitted before he rendered his decision (a fact supplemented by evidence that the Appeals Council considered according to its denial notice), the Court determines that the ALJ must be given the opportunity to specifically consider the comprehensive record, including the noted new evidence, on remand. The Court believes that such ailments, considered in conjunction with Plaintiff's other physical and psychological ailments, could have a detrimental effect on her RFC, which in turn could potentially affect her disability status determination. There are a total of 3 separate treating doctors opining that Plaintiff is disabled or will have significant trouble working, in consideration of her medical problems. They are Dr. Scanlan, Dr. Sarabia, and Dr. Debendra Pattanaik, a rheumatology fellow. According to Scott v. Heckler, treating physicians' opinions should generally be given "considerable weight," though less weight may be given when there is good cause to the contrary. Scott, 770 F.2d 482, 285 (5th Cir. 1985). On remand, the ALJ should give the proper consideration to Plaintiff's submitted medical opinions.
IV. Conclusion
Plaintiff seeks review of the decision to deny her disability benefits and objects to the Report and Recommendation of the United States Magistrate Judge that the decision be affirmed. She alleges that the medical evidence of Scleroderma and interstitial lung disease was not properly considered by the ALJ and Appeals Council and that she could not perform work available in the national economy. The record indicates that all of the plaintiff's evidence was not properly considered and thus the ALJ's decision was not supported by substantial evidence. Accordingly, the Court SUSTAINS Plaintiff's objections to the Magistrate Judge's Recommendation, REVERSES the ALJ's ruling and ORDERS that the case be remanded to the Social Security Administration for a new hearing consistent with this Order. The ALJ is hereby directed to consider the new evidence and, based on the entire record, make a determination as to whether Plaintiff is entitled to Social Security benefits.