Opinion
Civ. No. 97-5516 (DRD)
August 20, 1999
Esther Candido, Union, New Jersey, Pro se Plaintiff.
Faith S. Hochberg, Esq., United States Attorney, By: Anthony J. LaBruna, Jr., Esq., Assistant U.S. Attorney, Newark, New Jersey, Attorney for Defendant.
OPINION
Pro se plaintiff, Esther Candido, appeals pursuant to 42 U.S.C. § 1383(c)(3) from a final determination of the Commissioner of Social Security ("Commissioner"), denying her application for Supplemental Security Income benefits ("SSI") under Title XVI of the Social Security Act ("Act"). Plaintiff seeks reversal of the dismissal of her claim by the Administrative Law Judge ("ALJ"). Plaintiff has not submitted a brief as required by L. Civ.R. 9.1; however, in light of herpro se status, the Court will review the administrative record without the benefit of briefs from either party. For the reasons set forth below, the Commissioner's decision will be reversed and remanded for further proceedings consistent with this opinion.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On February 15, 1994 Plaintiff applied for SSI benefits under the Act alleging disability since her early teens due to endometriosis. (Tr. 30-32; 46-53.) In later statements she indicated that she also had spastic colitis since 1979 and obstruction of the right osteomeatal complex. (Tr. 13.) Her application was denied initially and again on reconsideration. (Tr. 33-41.) Plaintiff requested a hearing before an ALJ and the hearing was originally scheduled for April 16, 1996. (Tr. 28-29.) The hearing was rescheduled for September 10, 1996, and Plaintiff subsequently submitted a doctor's note requesting that the ALJ, Ralph J. Muehlig, make his decision based on the record because she did not feel well enough to attend a hearing. (Tr. 22, 75.) The ALJ, in his decision dated September 27, 1996, held that Plaintiff was not disabled since her impairments did not prevent her from performing substantially the full range of light work. (Tr. 19.) Plaintiff appealed to the Appeals Council and submitted additional evidence that was made a part of the record. (Tr. 7, 76-80.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on May 29, 1997. (Tr. 5-6.) Plaintiff now seeks review of that final decision.
Endometriosis is a condition in which the lining of the uterus grows aberrantly in various locations outside the uterus including the fallopian tubes and ovaries. Richard Sloane, The Sloane-Dorland Annotated Medical-Legal Dictionary 252 (1987).
The administrative record discloses the following facts. Plaintiff was born on May 30, 1957. (Tr. 30.) Plaintiff is five feet tall and in 1994 weighed between 93 and 99 1/2; pounds. (Tr. 67, 69.) Plaintiff has a ninth grade education. (Tr. 50.) Plaintiff receives food stamp benefits and general welfare assistance through the Township of Union's Human Services Department. (Tr. 31, 56.) Plaintiff has not engaged in substantial gainful activity since her alleged onset date of disability. (Tr. 13, 46.)
Because there was no hearing during which Plaintiff could describe her alleged disability and its impact on her day to day life it is important to consider the statements she made in her written submissions to the Commissioner. In a Disability Report dated February 10, 1994 Plaintiff stated that she had had endometriosis since her early teens. (Tr. 46.) She explained how her condition kept her from working: "A lot of pain and fatigue. I even get rectal pain also. And at times I have some rectal bleeding. Pain walking, bending, sitting. Pain on my lower back, lower abdominal pain, and on right and left side by pelvis. And at times I get dizzy." (Id.) She stated that she went to Marven H. Wallen, M.D. for treatment as necessary starting on February 4, 1991 and that she had last seen him on November 2, 1993. (Tr. 47.) In February 1991 she was treated by Dr. Wallen for acute sinusitis and pleurisy, and in November 1993 he treated her for "a bad cold and bronchitis." (Id.) Plaintiff stated that she took Ovcon-35 and aspirin-free Anacin. (Id.) In response to a question regarding whether her doctor told her to cut back or limit her activities, she wrote that Dr. Wallen "told me I'm unable to work, or do anything, because of my condition." (Tr. 49.) She indicated that she doesn't do any household chores because she has pain, has no recreational activities or hobbies, and that her social contacts are limited to visits from friends, relatives and neighbors because she tires easily. (Id.)
In a Reconsideration Disability Report dated September 3, 1994 Plaintiff described her limitations since she filed her claim:
This chronic disease gives me pain and fatigue, I get rectal pain, and rectal bleeding. Pain walking, bending, sitting. I get pain on my lower back, and lower and upper abdominal area. Pain on right and left side by pelvis. At times I get dizzy also and nausea.
(Tr. 54.) She stated that besides endometriosis she had had spastic colitis since 1979. (Id.) Plaintiff noted that she had seen Dr. Wallen on August 22, 1994 for a viral infection and that she had "all over aches and pains, swollen glands, chest and back [pain]. Also runny nose and sneezing." (Tr. 55.) During this office visit she was treated with a shot of the antibiotic Ceclor and aspirin-free Anacin. (Id.) As in her initial Disability Report Plaintiff stated that her illness caused her a lot of pain and fatigue and that she was "unable to work, and unable to do anything because of my condition." (Tr. 57.) Plaintiff explained that a report submitted by Dr. Wallen as part of her application for benefits had apparently been lost in the mail and that the Commissioner disapproved her claim without waiting for Dr. Wallen to return from vacation and resubmit his report. (Tr. 58-59.) Plaintiff also complained that the Commissioner's consultative examiner
did not mention [in his report] what I told him, I told him that I also have Spastic Colitis. I told him so much more than he reported. He stated I do have internal problems. And he said, although it causes you some discomfort. How could he say some discomfort, he doesn't get the pain I get, and he doesn't feel my pain. So why does the Social Security Administration send people to their doctors?
(Tr. 58-59.)
According to the Functional Assessment Questionnaire completed by Plaintiff on November 1, 1994 she lived in her mother's home with her mother and brother. (Tr. 62.) Plaintiff regularly took Ovcon-35 and aspirin-free Anacin. (Id.) Plaintiff was kept awake by her pain. (Tr. 63.) She did not need any special help to take care of her personal needs or grooming. (Id.) Her mother prepared her meals. (Id.) She did not do housework or perform any household chores because of her pain. (Tr. 64.) According to Plaintiff she went shopping only when needed because of her pain, and her brother drove her. (Id.) It was painful for her to lift things and it hurt to bend. (Id.) Regarding her participation in social or recreational activities, Plaintiff wrote, "I do not participate in sports or hobbies. Friends or relatives visit me. And I do not belong to clubs, groups or organizations." (Tr. 66.)
On June 16, 1995 Plaintiff completed a form called "Claimant's Statement When Request for Hearing is Filed and the Issue is Disability." (Tr. 60-61.) In this statement she wrote that she saw Richard G. Pizzano, M.D. on April 18, 1995 for "bad headaches, facial pain and dizziness" and that a CT scan and blood tests were performed. (Tr. 60.) Plaintiff indicated that she took extra strength Tylenol as needed, and that she was prescribed Axid, Levsin and Darvocet by Dr. Pizzano but she stopped taking the Axid and Levsin because they caused dry mouth. (Tr. 61.) She also wrote that she consulted Rocco R. Tutela, M.D. twice, on April 14, 1995 and June 9, 1995, regarding pain due to obstruction of the right osteomeatal complex. (Tr. 61.) According to Plaintiff, Dr. Tutela recommended surgery. (Id.)
MEDICAL EVIDENCE
The medical evidence in the administrative record is far from abundant. Apparently only four "medical reports," including a check-the-boxes form report filled out by a non-examining Medical Expert appointed by the Social Security Administration ("SSA") and a one-sentence letter concerning Plaintiff's request not to appear at a hearing, were submitted for the ALJ's consideration. Plaintiff supplemented the record before the Appeals Council with three additional documents: a hospital report from 1988, a one-page letter prepared by a treating physician after the ALJ's unfavorable decision was issued, and a letter from Plaintiff responding to the ALJ's decision.
Evidence Before the ALJ
At the request of the SSA, M.J. Feman, M.D. examined Plaintiff on July 19, 1994 and filed a Consultative Examination Report. (Tr. 67-68.) Dr. Feman noted that Plaintiff was a single 37-year-old female whose complaints started in 1979 when she developed abdominal pain. (Tr. 67.) Plaintiff's history revealed that an ultrasound evaluation had shown an abdominal cyst. (Id.) Plaintiff had recurrent pain and eventually in 1988 underwent abdominal surgery for an ovarian cyst on the left side. (Id.) Plaintiff was told at that time that she had endometriosis. (Id.) Approximately in 1992 Plaintiff had an episode of pleurisy. (Id.) Dr. Feman noted that Plaintiff complained of left side abdominal pain, pinching and burning and rectal bleeding and rectal pain. (Id.) The pain was not totally related to her periods. (Id.) However, Plaintiff would get some recurrent bloating, low back pain, lower abdominal pain, difficulty in urination and difficulty with bowel movements. (Id.) According to Dr. Feman Plaintiff had been on birth control pills for some years with no change in pain quality. (Id.)
Dr. Feman's physical examination of Plaintiff revealed the following:
Height 60 inches, weight 93 pounds, blood pressure 110/80, pulse 72, respirations normal. Skin clear. Pupils react to light and accommodation. Neck veins not distended. Carotids, no bruits. Lungs are clear. The heart is regular sinus rhythm, no thrills or murmurs. The abdomen is soft. There is tenderness in the mid lower abdomen with no guarding or rebound. Bowel sounds are normal. Rectal and pelvis examination were not performed. Extremities were unremarkable, no clubbing, cyanosis or edema. Full range of motion of all extremities. Normal gait. Normal reflexes.
(Tr. 67-68.) Dr. Feman noted that the one laboratory test performed, the SMA 21, was unremarkable. (Tr. 68.) Dr. Feman's diagnosis was "1) chronic and recurrent abdominal pain, irritable bowel syndrome suspected and 2) endometriosis possible but without further clinical evidence, a diagnosis cannot be made on this examination." (Id.)
On December 19, 1994 Dr. Wallen, one of Plaintiff's treating physicians, completed a General Medical Report form requested by the Division of Disability Determinations. (Tr. 69.) Dr. Wallen stated that he first examined Plaintiff on February 4, 1991 and saw her every two to three months. (Id.) He noted that Plaintiff was five feet tall, weighed 99 ½ pounds, her blood pressure was 100/70 and she had been steadily losing weight. (Id.) Dr. Wallen stated that Plaintiff "has endometriosis with recurrent abdominal pain" and that his physical findings were "diffuse tenderness especially in the right and left lower quadrant." (Id.) Endometriosis was Dr. Wallen's only diagnosis, and as for treatment and response, he wrote, "analgesics with only temporary relief of pain. Patient is unable to work due to recurrent abdominal pain." (Id.)
On May 3, 1995 Plaintiff underwent a CT scan of the paranasal sinuses at North Essex Imaging. (Tr. 70.) In a report dated May 4, 1995 Mario Giudici, M.D. noted his impression from the CT scan as obstruction of the right osteomeatal complex, with mild mucosal thickening observed in the frontal and maxillary sinuses. (Id.)
On April 14, 1996 Martin A. Fechner, M.D. completed a Physical Capacities Evaluation form ("PCE") in his capacity as Medical Expert on behalf of the SSA (the "ME"). (Tr. 73-74.) He is board certified in internal medicine and has worked in private practice in internal medicine since 1983. (Tr. 71-72.) The ME did not examine Plaintiff and he filled out the PCE based on his review of the sparse record. The ME stated that the medical basis for Plaintiff's impairments was "possible endometriosis." (Tr. 73.) He determined that in an eight-hour workday Plaintiff could sit for eight hours and stand and walk for an aggregate of six hours. (Id.) In the ME's opinion Plaintiff could lift five to ten pounds frequently and 11-20 pounds occasionally; use both hands for simple grasping, pushing and pulling of arm controls and fine manipulation; use both feet for repetitive movements as in pushing and pulling leg controls; and could frequently bend and occasionally squat, crawl, climb and reach. (Tr. 73-74.) The ME found no restriction of activities involving unprotected heights, being around moving machinery, exposure to temperature and humidity, driving automotive equipment and exposure to dust, fumes and gases. (Tr. 74.) The ME stated that in his professional medical opinion, Plaintiff's condition was liable to last more than twelve months and concluded with his opinion as to the medically determinable basis for Plaintiff's pain:
Endometriosis can cause moderate to severe lower abdominal pains often around time of menstruation. This can at least be partially controlled with pain medication. Total hysterectomy often completely cures the patient which is an option for this patient who is almost 40 years old.
There is no definite diagnosis on the chart such as biopsy or the results of the surgery (ovarian cyst) she had in 1988. This would help in definitely pinning down the diagnosis of endometriosis.
(Id.)
On August 23, 1996 Dr. Pizzano, one of Plaintiff's treating physicians, wrote a brief note to support Plaintiff's request not to appear at a hearing before the ALJ. (Tr. 75.) That note reads, "Please be informed that my patient Esther Candido cannot attend the Social Security disa[b]ility meeting because she is being treated for Chronic endometriosis, and chronic spastic colitis." (Id.) No other medical records from Dr. Pizzano were submitted as part of the initial administrative record even though he apparently had been treating Plaintiff for some time.
Plaintiff was referred to North Essex Imaging for her May 3, 1995 CT scan by Dr. Pizzano. (Tr. 70)
Additional Evidence Before the Appeals Council
To supplement the record Plaintiff submitted to the Appeals Council a medical report from Columbus Hospital dated July 19, 1988 to July 23, 1988. (Tr. 76-77.) This report documents Plaintiff's hospital stay for surgery to remove a cyst on her left ovary. The cyst and pelvic pain are noted as the principal diagnosis, with endometriosis noted as the secondary diagnosis. (Tr. 76.) The post-operative pathological report describes the specimen as "ovarian cyst partial lined by epithelium, with recent and old hemorrhage, consistent with endometriosis." (Tr. 77.)Plaintiff also submitted a letter from Dr. Pizzano dated November 21, 1996. (Tr. 78.) In this letter Dr. Pizzano stated:
Esther Candido has been under my medical care since Feb. 21, 1980 and her complaints have been right lower quadrant, and pelvic pain. Since that time the patient was seen on consultation by Doctor Frank DeGregorio, OB/GYN specialist who performed surgery on her. The pathology report showed ovarian cyst with recent, and old hemorrhage consistent with endometriosis.
The patient has also had an anxiety disorder, and in addition a frontal and maxillary sinusitis. She had a CT scan of the paranasal sinuses on May 3, 1995 which showed obstruction of the right osteomeatal complex with a mild mucosal thickening in the frontal and maxillary sinuses.
In addition the patient is afflicted with chronic irritable colon. Also because of all these above described problems the patient is completely disabled and is unable to sit for any long period of time.
(Id.)
Finally, Plaintiff supplemented the record with her own letter dated November 27, 1997. (Tr. 79.) In her letter Plaintiff disputed the ALJ's finding that she had taken birth control pills for her endometriosis since she was a teenager. (Id.) She asserted that she "took birth control pills for my endometriosis for 4 1/2 years only, in my whole life. I had to stop the pills, because they were causing side effects, and making me more sick." (Id.) Plaintiff also disputed the ALJ's contention that she has substantial motives to exaggerate her health problems because she is over 35 years old, never worked and lives with her mother. Plaintiff wrote:
Apparently this portion of the ALJ's discussion refers to Dr. Feman's Consultative Examination Report which stated that Plaintiff "has been on birth control pills for some years with no change in pain quality." (Tr. 67.)
I do not have a motive, and I do not exaggerate about my health problems, please believe me. I've been through a lot of pain, and suffering in my lifetime, with my Chronic Disease Endometriosis which causes fatigue and pain, combined with Spastic Colitis, these Diseases together cause a lot of pain and problems. And there is no motive, because I'm over thirty-five years old, and living with my mother, there is nothing wrong with that. I live with my mom because I love her, and we are a very close family. Even if I was well, and in perfect health, I would still live with my mother.
(Tr. 79-80.) Plaintiff concluded her letter by stating, "I did not ask for my health problems, the Chronic Diseases I have, unfortunately I just have them. Also I wanted to let you know, as for the Obstruction, I had surgery on my nose, for that." (Tr. 80.)
DETERMINATION OF DISABILITY AND BURDENS OF PROOF
An individual is eligible for SSI benefits under the Act if she "is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). An individual's impairment must be "of such severity that [s]he is not only unable to do [her] previous work but cannot, considering h[er] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has promulgated a five-step analysis for evaluating a claimant's disability. See 20 C.F.R. § 404. The Commissioner first considers whether the claimant is currently engaged in "substantial gainful activity." 20 C.F.R. § 404.1520(a). If the claimant is working and the work is substantial gainful activity, his application for disability benefits is automatically denied. See 20 C.F.R. § 404.1520(b). If the claimant is not employed, the ALJ then proceeds to step two and determines whether the claimant has a "severe impairment" or "combination of impairments." 20 C.F.R. § 404.1520(c). A claimant who does not have a "severe impairment" is not disabled. Id.
Third, if the impairment is found to be severe, the ALJ determines whether the impairment is listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. If so, the claimant is conclusively presumed to be disabled, and the evaluation ends there. See 20 C.F.R. § 404.1520(d). If the impairment is not a listed impairment or its equivalent, the ALJ proceeds to step four.
At the fourth step, the ALJ determines whether the claimant can return to his previous type of employment. See 20 C.F.R. § 404.1520(e). If the claimant can perform his previous work, the claimant is not disabled. Id. The claimant has the burden of proving that he is unable to return to his former occupation. Rossi v. Califano, 602 F.2d 55, 57 (3d Cir. 1979). The Rossi court noted that a "plaintiff satisfies her initial burden of showing that she is unable to return to her previous employment when her doctor substantiates her subjective claims." Id. If the claimant has satisfied his initial burden that he is no longer able to perform his previous type of employment, the evaluation must continue to the fifth and final step.
For the fifth step "the burden of proof shifts to the [Commissioner] to show that the claimant, given [his] age, education and work experience, has the capacity to perform specific jobs that exist in the national economy." Id. at 55, 57. Entitlement to benefits is dependent on a finding that the claimant is incapable of performing some other type of work in the national economy. See 20 C.F.R. § 404.1520(f).
ADMINISTRATIVE FINDINGS
On September 27, 1996, ALJ Muehlig determined the following:
1) The claimant has not engaged in substantial gainful activity since at least November 15, 1993.
2) The medical evidence establishes that the claimant has endometriosis and spastic colitis which significantly affect her ability to perform some basic work activities; and that she also has an obstruction of the right osteomeatal complex and mucosal thickening in her sinuses which are not severe; but that she does not have an impairment or combination of impairments listed in, or medically equal to one listed in, Appendix 1, Subpart P, Regulations No. 4.
3) The claimant's subjective allegations of a debilitating degree of pain in her abdominal, pelvic, rectal and low back areas; fatigue; difficulty sleeping; rectal bleeding; bloating; intermittent dizziness; nausea; severe headaches and facial pain are not sufficiently consistent with the record as a whole to be factored into her residual functional capacity.
4) The claimant has the residual functional capacity to perform work-related activities except for lifting or carrying more than 20 pounds occasionally and lifting or carrying more than 10 pounds frequently. There are no nonexertional limitations.
5) The claimant has not worked in the relevant past.
6) The claimant is less than 40 years old, which is defined as a younger individual ( 20 C.F.R. § 416.963).
7) The claimant has a limited education.
8) The claimant has no work experience.
9) Section 416.969 of Regulations No. 16 and Rule 202.17, Table No. 2 of Appendix 2, Subpart P, Regulations No. 4, direct a conclusion that she is not disabled. Examples of light exertion jobs existing in significant numbers in the national economy which she can perform, considering her medical impairments, residual functional capacity, age, education and work experience, are assembler, packer, and machine operator.
10) The claimant has not been under a "disability," as defined in the Social Security Act, at any time through the date of this decision ( 20 C.F.R. § 416.920(f)).
(Tr. 20-21.)
STANDARD OF REVIEW
A court must accept the findings of fact by the Commissioner if those findings are supported by "substantial evidence." 42 U.S.C. § 495(g). The Supreme Court has defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," which is "more than a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Morales on behalf of Morales v. Bowen, 833 F.2d 481, 488 (3d Cir. 1987). The Court of Appeals for the Third Circuit has developed certain rules to scrutinize the evidentiary basis for administrative findings:
This oft-cited language [describing the standard of substantial evidence] is not, however, a talismanic or self-executing formula for adjudication; rather, our decisions make clear that determination of the existence vel non of substantial evidence is not merely a quantitative exercise. A single piece of evidence will not satisfy the substantiality test if the [Commissioner] ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence — particularly certain types of evidence (e.g., that offered by treating physicians) — or if it really constitutes not evidence, but mere conclusion. . . . The search for substantial evidence is thus a qualitative exercise without which our review of social security disability cases ceases to be merely deferential and becomes instead a sham.Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983) (citations omitted). "However, `even if the [Commissioner]'s factual findings are supported by substantial evidence, a court may review whether the administrative determination was made upon correct legal standards.'" Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983) (quoting Curtain v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981)).
To enable a court to properly perform its function of review, an administrative decision "should be accompanied by a clear and satisfactory explanation of the basis on which it rests." Cotter v. Harris, 642 F.2d 700, 704 (3d Cir.), reh'g denied, 650 F.2d 481 (1981). The ALJ should indicate not only the evidence which supports his or her conclusion, but also indicate "significant probative evidence" that was rejected in order for the reviewing court to determine whether such evidence was not credited or simply ignored. Id. at 705. Additionally, when faced with conflicting evidence, an administrative decision must adequately explain in the record its reasons for rejecting or discrediting competent evidence. Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D.Pa. 1987).
DISCUSSION
The duty of a district court is not to review the case de novo, but instead to discern whether substantial evidence exists in the record to support the findings and determinations of the ALJ. See Bradley v. Bowen, 667 F. Supp. 161 (D.N.J. 1987).
Here, the ALJ found that Plaintiff met the first four steps of the five-step evaluation. First, it is undisputed that Plaintiff was not engaged in substantial gainful activity since the onset of her disability. Second, the ALJ found that Plaintiff's impairments were severe "because they are likely to cause significant limitations on the claimant's ability to perform basic work activities." (Tr. 15.) Third, the ALJ determined that Plaintiff's impairments did not meet or equal the listed impairments in section 5 (digestive system) or 6 (genito-urinary system) in 20 C.F.R. Appendix 1, Subpart P, Part 404. (Tr. 16) Fourth, a determination of whether Plaintiff had the residual functional capacity to return to her past relevant work was unnecessary because Plaintiff did not work in the relevant past. (Id.)
The ALJ had found that there was no objective evidence in the record that Plaintiff had the impairments she alleged but he nonetheless "assume[d] that the claimant does have medically determinable endometriosis and spastic colitis, since her physicians prescribed medications for them, which they generally would not have done without some clinical and/or laboratory evidence on which to base their diagnoses." (Tr. 15.)
At the fifth step, the Commissioner has the burden of showing that there are jobs existing in significant numbers in the national economy which Plaintiff can perform, consistent with her medically determinable impairments, functional limitations, age, education and work experience. The ALJ gave "substantial weight" to the ME's "impartial opinion that [Plaintiff] does not have significant limitation of her ability to perform work-related activities, except for inability to lift more than 20 pounds occasionally or more than 10 pounds frequently." (Id.) He stated that the ME had "considered the fact that the objective basis for a diagnosis of endometriosis is undocumented in the record and the fact that her symptoms, if she does have endometriosis, can be at least partially controlled with analgesic medication." (Id.) The ALJ correspondingly gave "minimal weight" to the opinions of Plaintiff's treating physicians. He criticized Dr. Wallen's December 21, 1994 opinion that Plaintiff was unable to work because that opinion was "not well supported by objective findings, does not specify which activities the claimant can and cannot do, and is based only upon the claimant's reports of recurrent abdominal pain and one relatively subjective clinical finding — diffuse lower abdominal tenderness." (Tr. 17.) The ALJ further questioned Dr. Wallen's familiarity with the exact clinical findings due to an "apparently inaccurate" reference to Plaintiff's steady weight loss and found that Dr. Wallen's opinion was inconsistent with his own statement that temporary relief was available with analgesics. (Id.)
The ALJ apparently misunderstood the ME's evaluation regarding Plaintiff's capacity to lift; the ME found that Plaintiff could lift 5-10 pounds frequently and 11-20 pounds occasionally, not that she was unable to lift more than 20 pounds occasionally or more than 10 pounds frequently. (Tr. 73.)
Dr. Wallen had noted in December 1994 that Plaintiff, who then weighed 99 1/2; pounds, had been steadily losing weight while a few months earlier, in July 1994, Dr. Fechner, the consultative examiner, reported that Plaintiff actually weighed less — only 93 pounds.
The ALJ found that claimant's allegations of limitations "beyond those indicated by the medical expert" were "not sufficiently consistent with the record as a whole to be factored into her residual functional capacity." (Id.) He stated that many of Plaintiff's complaints had not been noted by any physician, nor was there any clinical evidence of these complaints (with the minor exception of the CT scan evidence of a paranasal sinus obstruction). (Id.) While the ALJ observed that Dr. Pizzano was treating Plaintiff for spastic colitis and that Dr. Feman had noted tenderness of the abdomen in the consultative examination, he found that neither of Plaintiff's treating physicians had identified any clinical signs for spastic colitis or detailed the frequency or intensity of any colitis-related symptoms. (Tr. 17-18.) Furthermore, the ALJ did not find Plaintiff's subjective complaints of pain to be credible or consistent with the evidence:
The ALJ listed Plaintiff's subjective complaints as "pain in her abdominal, pelvic, rectal and low back areas that is not necessarily related to her menstrual cycle; chronic fatigue; difficulty sleeping; rectal bleeding; bloating; intermittent dizziness; nausea; severe headaches; and facial pain." (Tr. 17.)
It is noted that she describes very curtailed daily activities, which is consistent with her claims that walking, bending, lifting things, and even sitting, are painful. However, she has not gone to an emergency room or been hospitalized. The analgesics she has taken have primarily been those available over-the-counter. Although she reported that she received a prescription for a narcotic analgesic from her new doctor for use as necessary, there is no indication that she needed to use it frequently or for a prolonged period of time. Her assertion that the birth control pills she has taken since she was a teenager have not helped her significantly is not very credible, especially considering that there is no indication that total hysterectomy was ever recommended by her treating physicians — although this could possibly solve her problem according to the medical expert. She does allege that she had to stop taking additional medications that were prescribed because she developed dryness of her mouth on account of her paranasal sinus obstruction. There is no indication that replacement medications were ever tried, although it is difficult to fathom that such medications do not exist. Finally, substantial motive(s) to exaggerate whatever health problems she does have are likely, considering that the claimant is over thirty five years old, has never worked and is still living with her mother.
(Tr. 18.) The ALJ concluded that despite Plaintiff's impairments she had a residual functional capacity for light work under vocational rule 202.17, 20 C.F.R. Appendix 2, Subpart P, Part 404. (Tr. 19.)
As discussed above, Plaintiff supplemented the record before the Appeals Council with three additional documents not considered by the ALJ. In its decision not to review the ALJ's decision the Appeals Council notified Plaintiff: "The Appeals Council has also considered the contentions raised in your letter dated November 27, 1997, as well as the additional evidence from Columbus Hospital dated July 23, 1988 and from Richard G. Pizzano, M.D. dated November 21, 1996, but concluded that neither the contentions nor the additional evidence provides a basis for changing the Administrative Law Judge's decision." (Tr. 5.)
After carefully considering the entire administrative record and the ALJ's decision, this Court finds that remand is warranted for four reasons.
First, although a claimant generally has the burden of producing medical and other evidence necessary to establish disability in proceedings under Title II of the Act, in SSI cases (such as the present case) the Commissioner is expected to secure sufficient evidence to make a "sound determination." Ferguson v. Schweiker, 765 F.2d 31, 36 n. 4 (3d Cir. 1985). Pursuant to 20 C.F.R. § 404.1517 the Commissioner may order a consultative examination at its expense: "If your medical sources cannot or will not give us sufficient medical evidence about your impairment for us to determine whether you are disabled or blind, we may ask you to have one or more physical or mental examinations or tests." According to the regulations governing the Commissioner's purchase and use of consultative examinations:
As noted by the Third Circuit in Ferguson :
The statutory language in Title II which places the burden of proof as to the medical basis of a finding of disability on the claimant at all times is simply not present in Title XVI. See 42 U.S.C. § 423(d)(5) (1976). For example, although the definitions of disability for the Supplemental Security Income for the Aged, Blind and Disabled Program (Title XVI of the Act) are practically identical to the definitions in Title II ( cf . 42 U.S.C. § 1382c(a)(3)(A), (B), (C) (D) with 42 U.S.C. § 423(d)(1)(2), (3) (4)), a provision such as § 423(d)(5) is noticeably absent from Title XVI.The reason for such absence is explained in the legislative history. The legislative history makes clear that the SSI benefits program is a program for needy aged, blind, and disabled who do not have insured status and thus do not qualify for benefits under Title II. H.R. No. 92-231, reproduced in 1972 U.S. Code Cong. Ad. News 4989-92, 5133. Thus, although the definitions of disability under both programs are the same, the burden of producing the medical documentation required to establish disability is not:
Your committee recognizes that under a needs program, it would be unreasonable to expect a claimant to pay for the medical evidence necessary to establish disability or blindness or even to provide the same extent of medical documentation required under Title II of the Social Security Act. Thus, the Secretary would be expected to secure the needed medical evidence and [sic] the evidence was needed to make a sound determination .Id . at 5134 (emphasis added). Thus, in an SSI case, if there is insufficient medical documentation or if the medical documentation is unclear, it is incumbent upon the Secretary to secure any additional evidence needed to make a sound determination.
Ferguson , 765 F.2d at 36 n. 4.
The decision to purchase a consultative examination for you will be made after we have given full consideration to whether the additional information needed (e.g., clinical findings, laboratory tests, diagnosis, and prognosis) is readily available from the records of your medical sources. . . . Before purchasing a consultative examination we will consider not only existing medical reports, but also the disability interview form containing your allegations as well as other pertinent evidence in your file.
When we purchase a consultative examination, we will use the report from the consultative examination to try to resolve a conflict or ambiguity if one exists. We will also use a consultative examination to secure needed medical evidence the file does not contain such as clinical findings, laboratory tests, a diagnosis or prognosis necessary for decision.20 C.F.R. § 404.1519a(a)(1)-(2).
The Commissioner apparently believed that a consultative examination was required to assist the ALJ in his review of Plaintiff's medical evidence because one was ordered for her with Dr. Feman. However, no rectal or pelvic examination was performed — even though Plaintiff's chief complaints were pain stemming from spastic colitis and endometriosis, and no clinical tests specifically relevant to Plaintiff's medical impairments were performed — even though Dr. Feman himself noted in his diagnosis that "endometriosis [was] possible but without further clinical evidence, a diagnosis cannot be made on this examination." (Tr. 68) (emphasis added). The utility of such a consultative examination is thus highly questionable. On remand the Commissioner should purchase another consultative examination and specify that the consultative examiner should perform a rectal and pelvic examination, as well as any other medical examinations or laboratory or diagnostic tests that would develop the record more fully. In addition, in her November 27, 1996 letter supplementing the record before the Appeals Council Plaintiff pointed out that while Dr. Feman's report stated that Plaintiff had been on birth control pills for some years with no change in pain quality she had actually told Dr. Feman that she stopped taking the pills after 4 1/2; years because of unwanted side effects. (Tr. 79.) The consultative examination report prepared on remand should more accurately reflect Plaintiff's stated medical history.
In his decision the ALJ adopted Dr. Feman's statement regarding Plaintiff's use of birth control pills. (Tr. 18.)
Second, the ALJ improperly speculated that Plaintiff was not availing herself of the most effective analgesic available and that, as a result, her complaints of pain were likely exaggerated. The ALJ properly noted that Plaintiff took primarily over-the-counter pain medication and that she had stopped taking some prescription analgesics because they caused dryness of the mouth, but he proceeded to opine: "There is no indication that replacement medications were ever tried, although it is difficult to fathom that such medications do not exist." (Tr. 18) (emphasis added). It was inappropriate for the ALJ to make this speculative statement, especially in light of the fact that not one single physician involved in Plaintiff's case, either treating, consultative or expert, was of the opinion that there was any alternative analgesic that would alleviate Plaintiff's pain. Dr. Wallen stated that use of analgesics would afford Plaintiff "only temporary relief of pain." (Tr. 69) Indeed, the only recommendation made by any physician regarding relieving Plaintiff's pain was the ME's brief comment that "total hysterectomy often completely cures the [endometriosis] patient . . ." (Tr. 74.) An ALJ's own medical opinions which are contrary to medical evidence, especially from treating physicians, are invalid. Allen v. Bowen, 881 F.2d 37, 41 (3d Cir. 1989). As a result, it was improper for the ALJ to assume that a more effective pain medication must exist, and his inference that Plaintiff's complaints of pain therefore must be exaggerated is not supported by substantial evidence.
Third, an ALJ's findings regarding residual functional capacity must be supported by medical evidence. Doak v. Heckler, 790 F.2d 26, 29 (3d Cir. 1986). A Physical Capacities Evaluation form without a thorough written medical report is not substantial evidence. Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) ("Form reports in which a physician's obligation is only to check a box or fill in a blank are weak evidence at best. As we pointed out in discussing residual functional capacity reports, where these so-called reports are unaccompanied by thorough written reports, their reliability is suspect. . . .") (citation and internal quotation marks omitted). In this case, the ME's PCE consisted entirely of a two-page check-the-boxes form, with a brief five-sentence comment at the end. Moreover, because he did not examine Plaintiff and prepared the PCE based on his review of the record the ME presumably based his conclusions at least partially on the results of Dr. Feman's consultative examination, an examination which, as discussed above, was far from thorough in that it failed to include a rectal or pelvic examination or any specifically relevant clinical tests and thus was itself not deserving of great weight. In his decision the ALJ gave "substantial weight" to the ME's opinion in determining Plaintiff's functional limitations. (Tr. 16.) Because the PCE is not substantial evidence, the ALJ's decision, which gave "substantial weight" to the PCE, is therefore not supported by substantial evidence. On remand, the ME should prepare a new PCE addressing the additional evidence that is submitted.
Finally, the ALJ improperly failed to consider the combined effect of Plaintiff's exertional and non-exertional impairments. In cases where only exertional impairments exist, the Commissioner may use the grids in order to determine whether there exist, in the national economy, jobs which a person with the claimant's qualifications and limitations could perform. In determining that the claimant is able to engage in gainful employment, the Commissioner must show that the claimant's vocational profile is contained within the grid guidelines. See Santise v. Schweiker, 676 F.2d 925, 934 (3d Cir. 1982), cert. denied, 461 U.S. 911 (1983); 20 C.F.R. Part 404, Appendix 2, § 200.00(d). The Commissioner must consider four factors — physical ability, age, education, and work experience — to set forth rules that identify whether employment opportunities requiring specific combinations of these factors exist in significant numbers in the national economy. If such employment opportunity exists, the claimant is not considered disabled. Heckler v. Campbell, 461 U.S. 458 (1983); 20 C.F.R. § 404.1529.
Use of the grids, however, may not be fully applicable where a "claimant suffers from non-exertional impairments, instead of, or in addition to, exertional impairments." 20 C.F.R. Part 405, Appendix 2, § 200.00(e); Santise, 676 F.2d at 934-935. When both exertional and non-exertional impairments exist, the Commissioner must rely on additional supporting evidence to demonstrate whether the claimant has the ability to perform the functions of employment available in the national economy. Washington v. Heckler, 756 F.2d 959, 967 (3d Cir. 1985).
By the terms of the Act, the ALJ must consider the combined effect of exertional and non-exertional impairments. Exertional impairments involve limitations on a claimant's ability to meet certain strength requirements of a job. 20 C.F.R. § 404.1545(b). Non-exertional impairments, however, involve limitations such as postural or manipulative impairments that do not limit physical exertion, but may prevent one from engaging in gainful activity. 20 C.F.R. § 404.1545(d). Such postural or manipulative functions include reaching, handling, stooping, climbing, crawling, or crouching. 20 C.F.R. § 404.1569a(c)(vi). The ALJ must also provide "a clear and satisfactory explanation of the basis on which it rests." Cotter, 642 F.2d at 704.
In this case, the ALJ adopted the ME's conclusions regarding Plaintiff's residual functional capacity and held that Plaintiff "has the residual functional capacity to perform work-related activities except for lifting or carrying more than 20 pounds occasionally and lifting or carrying more than 10 pounds frequently. There are no nonexertional limitations." (Tr. 20.) The ALJ concluded that these limitations did not prevent Plaintiff from performing the full range of light work. (Tr. 21.)
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds, in addition to "a good deal of walking or standing" or "sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567(b) .
The ALJ used the grids as a guideline for determining whether or not Plaintiff was disabled and found that Plaintiff was not disabled as she was less than 40 years old at the time of his decision and therefore a "younger individual" under the grids. As a younger individual, Plaintiff cannot be considered disabled under the grids. See 20 C.F.R. Part 404, Subpart P, Appendix 2.
In Jesurum v. Sec'y of the Dep't of Health Human Services, 48 F.3d 114, 120 (3d Cir. 1995), the Third Circuit stated that when a claimant cannot remain in either a sitting or standing position for the majority of the workday, it is inappropriate to categorize that claimant as capable of doing either sedentary or light work. In fact, with regard to alternate sitting and standing abilities, the Commissioner has stated:
In some disability claims, the medical facts lead to an assessment of RFC which is compatible with the performance of either sedentary or light work except that the person must alternate periods of sitting and standing. The individual may be able to sit for a time, but then must get up and stand or walk for a while before returning and sitting. Such an individual is not functionally capable of doing . . . the prolonged sitting contemplated in the definition of sedentary work . . .
There are some jobs in the national economy — typically professional and managerial ones — in which a person can sit or stand with a degree of choice. . . . However . . . unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will. In cases of unusual limitation of ability to sit or stand, a [vocational specialist] should be consulted to clarify the implications for the occupational base.
SSR 83-12.
In the present case, the ME indicated on the PCE form that in an eight-hour workday Plaintiff could sit for eight hours and stand and walk for an aggregate of six hours. (Tr. 73.) However, as discussed above, the PCE can not be considered substantial evidence, and Plaintiff's submissions suggest that the opposite conclusion regarding her ability to sit or stand for any length of time could be drawn. In her Disability Report Plaintiff stated that she has pain walking, bending and sitting and that her social contacts are limited to visits from friends, relatives and neighbors because she tires easily. (Tr. 46, 49.) In her Reconsideration Disability Report Plaintiff again stated that she is fatigued and that she has pain walking, bending and sitting. (Tr. 54.) In her Functional Assessment Questionnaire Plaintiff noted that she doesn't perform any household chores because it is too painful and that she shops infrequently and then only with help because "I can't lift things, it gives pain, and it gives me pain, and hurts to bend." (Tr. 62-66.) Plaintiff did not even feel well enough to attend a hearing before the ALJ. Indeed, Plaintiff's treating physicians both stated that Plaintiff is unable to work, with Dr. Pizzano specifically observing that Plaintiff "is unable to sit for any long period of time." (Tr. 69, 78.) Since these records indicate that Plaintiff may not be able to sit or stand for a prolonged period of time, under Jesurum, the ALJ's exclusive use of the grids to determine Plaintiff's disability was inappropriate.
While it was improper to use only the grids to determine Plaintiff's disability in this case, the Commissioner might still find, based on the testimony of a vocational expert, that Plaintiff is capable of performing other jobs in the national economy. Jesurum, 48 F.3d at 121. On remand, a vocational expert should be called upon to determine whether Plaintiff is capable of performing other jobs in the national economy.
CONCLUSION
In light of the foregoing, the decision of the Commissioner will be reversed and remanded for further proceedings consistent with this opinion. On remand, the ALJ should consider the evidence submitted by Plaintiff to supplement the record before the Appeals Council, along with any additional evidence Plaintiff decides to submit and all additional medical and vocational evidence required by this opinion. An appropriate order follows.
ORDER
This matter having been opened to the Court by plaintiff Esther Candido on an appeal of a decision by the Commissioner denying her Supplemental Security Income benefits, and notice having been given to all parties, in consideration of the administrative record, for good cause shown, and for the reasons set forth in the Court's opinion of even date,
IT IS, on this ___ day of August 1999, ORDERED that the Commissioner's decision be REVERSED and REMANDED to the Commissioner for further proceedings consistent with the opinion.