Opinion
2:98-CV-126
January 17, 2001
REPORT AND RECOMMENDATION TO VACATE DECISION OF THE COMMISSION AND REMAND FOR FURTHER PROCEEDINGS
Plaintiff MIGUEL V. CHAVEZ appeals the administrative agency denial of his claim for Social Security disability benefits. The question presented to this Court is whether substantial evidence exists to support the decision of defendant KENNETH S. APFEL, Commissioner of Social Security (Commissioner), that plaintiff is not disabled within the meaning of the Social Security Act and, thus, is not entitled to disability benefits. It is the opinion of the undersigned Magistrate Judge that there was NOT substantial evidence to support the decision of the Commissioner. Accordingly, it is the opinion of the undersigned United States Magistrate Judge that the decision of the defendant Commissioner be VACATED and REMANDED.
I. THE RECORD
On March 6, 1987, plaintiff was injured in an on-the-job accident resulting in the amputation of his right arm below the elbow. (Tr. 71, 95-99) Nonetheless, plaintiff reported earnings for 1987 and 1988, as well as 1991 and 1994. (Tr. 62) On April 7, 1995, plaintiff applied for disability insurance benefits and supplemental security income, alleging a disability onset date of October 1, 1989, due to the amputation of his arm and pain in his right shoulder. (Tr. 22-26) In a Disability Report completed that same date, plaintiff averred his condition finally made him stop working on September 20, 1991., (Tr. 73) In a Supplemental Questionnaire completed May 3, 1995, plaintiff stated he has no symptoms or pain, instead noting his limitations as a result of only having one hand. (Tr. 81-86).
Plaintiff reported that he used a "made up" Social Security number for work performed in 1989. (Tr. 24)
On June 7, 1995, plaintiff was examined by Dr. Neil Veggeberg. In correspondence dated June 9, 1995 to the Texas Rehabilitation Commission, Dr. Veggeberg stated:
I do feel at this point in time that [plaintiff] is able to be employed, but he is going to have to work primarily with his nondominant Side that is his left side, for working with no use of his right hand, no overhead work, and no lifting with his left arm greater than 50 pounds due to the destabilizing effect on the right side. If such job can be made available to [plaintiff], I would be glad to write him a work restriction that would be suitable. (Tr. 104-05)
On June 26, 1995, plaintiff's claim for disability benefits was denied, the Administration determining plaintiff's condition was not disabling on any date through June 30, 1990, the date he was last insured. (Tr. 36-40) The Administration also denied plaintiff supplemental security income, finding plaintiff's condition was not severe enough to keep him from working. (Tr. 41-44)
In a Reconsideration Disability Report submitted July 11, 1995, plaintiff asserted he feels pain in his right shoulder, and is unable to lift heavy objects due to his right arm amputation. Plaintiff acknowledged no restrictions had been placed on him by a physician since he filed his claim and that he had not suffered any additional illness or injury. Plaintiff advised he had not seen any physician or agencies, or been hospitalized or treated since filing his claim. Plaintiff explained that because of his amputation and/or pain associated therewith, it takes him longer to bathe and dress himself, and that he is unable to do any heavy lifting. During an interview conducted that same date, the Administration interviewer observed plaintiff has difficulty reading, writing, and using his hands, noting plaintiff is unable to read or write in English, and that he kept his right forearm hidden in his pocket during the interview. The interviewer concluded, however, that plaintiff did not require assistance, and did not appear to need capability development or development of work activity. (Tr. 87-92)
In a Statement supporting his request for a rehearing, plaintiff advised he had not worked since July 11, 1995, the date he requested reconsideration, and that there had been no change in his condition or daily activities and/or social functioning, no treatment or examination by a doctor or in a hospital, nor had he received medical or vocational services from a community agency since that date. Plaintiff noted he was not taking any prescription drugs, but did take aspirin as needed. (Tr. 93-94) On July 26, 1995, the Administration affirmed its previous denial of disability benefits and supplemental security income. (Tr. 47-55)
On May 22, 1996, plaintiff, represented by an attorney, received a hearing before an Administrative Law Judge ("ALJ"). Testimony was received from plaintiff and a vocational expert, Mr. Gerry M. Clink. On January 10, 1997, the ALJ made the following findings:
1. The claimant met the disability insured status requirements of the Act on October 1, 1989, the date the claimant stated he became unable to work, and continues to meet them through June 30, 1990;
2. The claimant has not engaged in substantial gainful activity since October 1, 1989;
3. The medical evidence establishes that the claimant has severe trauma to the upper right extremity resulting in below elbow amputation, but that he 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, particularly listings 1.09, 1.12, and 1.13;
4. The claimant's allegations of pain and other subjective complaints are not substantiated by the medical evidence to the extent alleged and do not support a finding of disability;
5. The claimant has the residual functional capacity for work which does not require use of a dominant hand, overhead work, or lifting more than 50 pounds with the non-dominant arm;
6. The claimant is unable to perform his past relevant work;
7. The claimant is 28 years old which is defined as a younger individual;
8. The claimant has an 8th grade education completed in Mexico; however, he is illiterate in English;
9. The issue of transferability of work skills is not material;
10. Taking into account the claimant's age, education, work experience, and residual functional capacity, Mr. Clink [a vocational expert] identified the following jobs the claimant could perform with an unimpaired nondominant hand and a "helper" hand: housekeeping cleaner (10,000 jobs existing in the region and 160,000 in the national economy). Mr. Clink also identified the following jobs which could be performed without the dominant hand if extra effort were applied: conveyor line worker (1,500 jobs existing in the region and 40,000 in the national economy). The claimant could be expected to make a vocational adjustment to other work.
11. The claimant was not under a "disability," as as defined in the Social Security Act, at any time through June 30, 1990, the date he was last insured for disability insurance benefits (for purposes of disability insurance benefits) or through the date of this decision for purposes of supplemental security income.
(citations omitted). The ALJ concluded that, based on the application filed April 7, 1995, plaintiff was not entitled to a period of disability insurance benefits and was not eligible for supplemental security income. (Tr. 9-16)
On March 11, 1998, the Appeals Council affirmed the decision of the ALJ (Tr. 4-7), rendering the ALJ's decision the final decision of the defendant Commissioner. Plaintiff now seeks judicial review.
II. FIVE-STEP ANALYSIS
A claimant is not entitled to disability benefits unless he establishes he is unable "to engage in any substantial gainful activity by reason of [a] medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 416 (i), 423(d)(1)(A). To determine whether a claimant is capable of engaging in any substantial gainful activity, the Commissioner has promulgated regulations that establish a five-step sequential process. 20 C.F.R. § 404.1520 (1995). All of the various regulatory definitions and terms which will be used in this process appear in 20 C.F.R. § 404.1501 et seq. The claimant bears the burden of proving the first four (4) sequential steps in the test for disability. On the final step, if it is reached, the defendant Commissioner bears the burden of proof. The five step sequential test has been discussed and judicially approved many times. Bowen v. Yuckert, 482 U.S. 137, 154, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987).
A. First Step
To proceed past the first step, the claimant, at the time of his or her claim for disability, must not be engaged in substantial gainful activity. If the claimant is engaged in substantial gainful activity, then the claimant is not disabled. 20 C.F.R. § 404.1520 (b), .1510, and .1572.
B. Second Step
If the ALJ determines the claimant is not engaged in substantial gainful activity at the time of his or her claim for disability, the second determination to be made is whether the claimant has an impairment and if it is severe. 42 U.S.C. § 423 (d)(2)(A). A severe impairment is one which, at a minimum, significantly limits the claimant's physical or mental ability to do basic work activities, i.e., the abilities and aptitudes necessary to do most jobs. 20 C.F.R. § 4O4.1520 (c); .1521. If the claimant does not have both an impairment and a severe one, there is no disability. 20 C.F.R. § 4O4.1520 (c), .1508, .1513, .1520-.1530; Bowen, 482 U.S. at 141.
C. Third Step
If the ALJ determines the claimant has a severe impairment and that such impairment has lasted, or is expected to last, for a continuous period of at least twelve (12) months, he must refer to the tables and grids published by the Commissioner to determine if the impairment is a per se disability. See Appendix 1 to Subpart P of Title 404; 20 C.F.R. § 404.1525. If the grid or table shows the claimant's impairment is disabling, then the inquiry ends, the claimant is found disabled and is entitled to disability benefits. Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). However, if the grid or table does not show a per se disability, it does not result in a final determination of no disability. 20 C.F.R. § 404.1520 (d).
D. Fourth Step
If the ALJ finds the claimant's impairment is not listed in the tables and is not equal to a listed impairment, he must then determine whether the claimant's severe impairment prevents his or her performance of past relevant work. If the claimant is capable of doing past relevant work despite his or her severe impairment, there is no disability. 20 C.F.R. § 4O4.1520 (e).
E. Fifth Step
If the ALJ finds the claimant is not capable of doing past relevant work at the fourth step, then he must determine whether the claimant's severe impairment prevents him or her from performing any other work. At this final step, the burden of proof is on the ALJ. The residual functional capacity, the age, education, and past work experience of the claimant are to be considered in making this determination. 20 C.F.R. § 404.1520 (f), .1545-.1568. If the ALJ determines the claimant is limited to sedentary, light, or medium work, then the ALJ is required to refer to the tables in Appendix 2 to Subpart P of Title 404; 20 C.F.R. § 404.1569, to determine if, under the claimant's residual functional capacity with his or her severe medically determinable impairments, the claimant is disabled.
III. STANDARD OF REVIEW
In reviewing disability determinations of the Commissioner, this Court's role is limited. Under 42 U.S.C. § 4O5 (g), judicial review is to determine whether the Commissioner's decision is supported by substantial evidence in the record, when considered as a whole, and whether proper legal standards were used in evaluating the evidence. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) (quoting Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990)). Substantial evidence is that relevant evidence a reasonable person would accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Warncke v. Harris, 619 F.2d 412, 416 (5th Cir. 1980). It must be more than a scintilla, but may be less than a preponderance. Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983). Where the decision is supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. 389, 390 (1971). The reviewing court may not substitute its own judgment for that of the Commissioner, even if the court determines the evidence preponderates toward a different finding. Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980). Conflicts in the evidence are to be resolved by the Commissioner, not the courts, Laffoon v. Califano, 558 F.2d 253, 254 (5th Cir. 1977), and only a "conspicuous absence of credible choices" or "no contrary medical evidence" will produce a finding of no substantial evidence. Hames v. Heckler, 707 F.2d at 164.
IV. GROUNDS
In his brief, plaintiff contends the Commissioner's decision that plaintiff is not disabled should be reversed because:
1. Plaintiff's impairment is "functionally equivalent" to the disabling impairments listed at 20 C.F.R. Pt. 404, Subpt. P. App. 1, §§ 1.12 and 1.13 so as to render plaintiff disabled and entitle him to benefits; and
2. The ALJ did not meet his burden of proving plaintiff retained the residual functional capacity to perform the jobs identified by the vocational expert.
V. MERITS OF THE CASE
The issues presented to this Court involve the determinations made by the ALJ at Step Three and Step Five of the five-step sequential analysis. Therefore, this Court shall review only the issues of whether there is substantial evidence supporting a finding that plaintiff's impairment is not listed in the tables and is not medically equal to a listed impairment, and whether there is substantial evidence supporting a finding that plaintiff's severe impairment prevents him from performing any other work.A. "Functional Equivalence" of Plaintiff's Impairment
Citing 20 C.F.R. § 1520(d), plaintiff contends his impairment "equals a listed impairment in appendix 1," thereby mandating a finding that he is disabled without consideration of his age, education, and work experience. Specifically, plaintiff argues his impairment equals or is "medically equivalent to" the listed impairments in sections 1.12 and/or 1.13. These sections, dealing with the musculoskeletal system, address fractures of an upper extremity (1.12) and soft tissue injuries of an upper or lower extremity (1.13). Sections 1.12 and 1.13 specifically address impairments resulting from fractured limbs for which there was not an amputation.
Plaintiff acknowledges he does not "meet" a listed impairment because he no longer has his forearm.
Defendant, for reasons unknown, has not directly addressed plaintiff's argument that he suffers from the medical equivalent of a listed disability. Instead, defendant merely relies on the fact that plaintiff's impairment did not meet the criteria set forth in 20 C.F.R. Pt. 40, Subt. P, App. 1, §§ 1.09, 1.12 and 1.13 and, therefore, plaintiff is not per se disabled.
In his reply to defendant's response, plaintiff concedes that his disability does not meet the criteria of the listed impairments, but re-asserts his claim that his impairment is, however, "equivalent" to a listed impairment. Defendant failed to file any sur-reply.
For a claimant to qualify for benefits by showing his unlisted impairment is "equivalent" to a listed impairment, he must present medical findings of at least equal medical significance to the most closely analogous listed impairment. See 20 C.F.R. § 416.926 (a)(2) (2000). In his brief, plaintiff argues the total absence of the functional part of a limb is as disabling as that of an arm that is present, but non-functional. Therefore, plaintiff maintains his impairment is "functionally equivalent" to, or worse than, the impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 1.12 and 1.13.
At first blush, plaintiff appears to make a persuasive argument, i.e., that it cannot "be logically asserted that an absent member [limb] is more functional than a remaining [nonfunctional] extremity." This argument ignores, however, the fact that amputees, as opposed to individuals with non-functioning limbs, are often able to improve their capabilities through various methods, such as the use of prostheses, etc. of course, in the instant case, plaintiff Chavez does not have a prosthesis, but the mere fact that the listings differentiate between an amputee versus a person with no functional use of a limb is not an unreasonable distinction.
Plaintiff's functional equivalency argument also fails to recognize that in the Supreme Court case of Sullivan v. Zebley, 493 U.S. 521, 531, 110 S.Ct. 885, 892, 107 L.Ed.2d 967 (1990), the Court stated that "a claimant cannot qualify for benefits under the "equivalence" step by showing that the overall functional impact of his unlisted impairment or combination of impairments is as severe as that of a listed impairment." Therefore, plaintiff's argument is misplaced as medical equivalence, rather than funcional equivalence, is the standard for comparison.
Compare section 416.926a concerning "functional equivalence for children."
The plaintiff has lost his right arm, below the elbow, due to amputation. The most closely analogous listed impairments are found at 20 C.F.R. § 404, Subpt. P, App. 1 § 1.09 dealing with amputation. Section 1.09 clearly requires an amputation of more than one limb to dictate a per se disability. There is no medical evidence in the record reflecting any other impairment other than the partial arm amputation. Additionally, no medical evidence was offered to support plaintiff's assertion of equivalency. Therefore, substantial evidence supports the finding that plaintiff's impairment is not medically equivalent to the conditions described in section 1.09. Plaintiff's first ground should be denied.
B. Plaintiff's Ability to Perform Other Jobs
In his second ground, plaintiff asserts the vocational findings of the ALJ that plaintiff is able to perform the jobs of housekeeping cleaner and conveyor line worker are not supported by substantial evidence. Defendant responds that the evidence of the medical doctor as to plaintiff's capabilities supports the ALJ's finding that plaintiff is capable of working despite his impairment. Defendant completely fails to address, however, the conflicting testimony of the vocational expert regarding the work available to this specific plaintiff, an individual who has lost the use of his dominate arm, is illiterate, and cannot speak English. (Tr. 140-45). In his reply, plaintiff maintains that the evidence at the hearing does not support the ALJ's finding that the plaintiff can find employment considering his illiteracy, inability to speak English, and loss of his dominant arm. Defendant failed to respond to plaintiff's reply.
The burden is on the defendant Commissioner, at Step Five, to prove there is other substantial gainful employment in the economy which the plaintiff can perform. Here, at the administrative hearing, the ALJ asked the vocational expert questions regarding the specific work limitations of plaintiff in light of his physical impairment (partial arm amputation) and his limitations regarding literacy and inability to speak English. (Tr. 142-43) The vocational expert stated plaintiff, considering his age, work history, and limited language skills, would be able to perform the jobs of housekeeping cleaner and conveyor line worker if he had the use of his dominant hand and a helping hand. (Tr. 143) Critically, the vocational expert further stated that without the use of the dominant hand, it would take "a motivated individual" to perform the given jobs, meaning that it would "take extra effort and motivation to be successful." (Tr. 143) The vocational expert stated that plaintiff should "acquire the primary language skills that's used in the region, and to develop expertise in jobs that would — in other words, retraining, so that he could be employable in something that could utilize the English language, which would give him a lot more opportunities." (Tr. 144)
It is clear from the evidence that plaintiff suffered the loss of hisdominant hand. (Tr. 104, 135) The vocational expert offered testimony only as to an individual who had the use of his dominant hand and stated that plaintiff, without the use of his dominant hand, would have to learn to speak English in order for him to have more job opportunities, and would have to be a "motivated individual," i.e., put forth extra effort. (Tr. 144) There is, therefore, no evidence from the vocational expert as to work this plaintiff, with his present limitations, can currently perform.
Defendant proffers, as supporting evidence of non-disability, the statement of the medical doctor who assessed plaintiff's residual functional capacity. As noted above, Dr. Veggeberg, in his letter to the Texas Rehabilitation Commission, stated that plaintiff "is able to be employed, but he is going to have to work primarily with his nondominant side, that is his left side, for working with no use of his right hand, no overhead work, and no lifting with his left arm greater than 50 pounds due to the destabilizing effect on the right side." (Tr. 104-05).
Defendant's reliance on Dr. Veggeberg's statements is misplaced. To base a finding of vocational capacity on the written statement of a medical doctor exceeds the discretion of the ALJ. In Millet v. Schweiker, 662 F.2d 1199 (5th Cir. 1981), the Fifth Circuit concluded that a statement from a medical doctor, without further development of his qualifications regarding his vocational expertise, was insufficient evidence of the plaintiff's ability to do other work. Id. at 1204. Similarly, in the instant case, the evidence offered at the administrative hearing regarding plaintiff's ability to find work in the national economy is in direct conflict with the ALJ's ultimate ruling. Therefore, there is no substantial evidence in the record to support the determination that plaintiff is capable of performing the job of a housekeeping cleaner with an "unimpaired non-dominant hand and a `helper' hand," or the job of a conveyor line work "if extra effort were applied." There is no evidence to support any finding, and in fact no finding was made, that plaintiff is, would or could become literate in English, and/or was "highly motivated" to the degree necessary to perform the identified jobs. Plaintiff's second ground should be granted.
VIII. RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the decision of the defendant Commissioner be VACATED and this case be REMANDED to the defendant for further proceedings consistent with this report.
IX. INSTRUCTIONS FOR FILING and NOTIFICATION OF RIGHT TO OBJECT
The United States District Clerk is directed to send a copy of this Report and Recommendation to plaintiff's attorney of record, and to the Assistant United States Attorney by certified mail, return receipt requested, or by any other agreed means which evidences a date of receipt.
Any party may object to the proposed findings, conclusions, or recommendation by filing such objections within fourteen (14) days from the date of this Report and Recommendation. Fed.R.Civ.P. 72; R. 4 (a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be made in a separate pleading entitled "Objections to Magistrate Judge's Report and Recommendation" and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the un-objected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).
IT IS SO RECOMMENDED.