Opinion
1:04-cv-0469-JDT-TAB.
June 28, 2005
ENTRY REVIEWING COMMISSIONER'S DECISION
This Entry is a matter of public record and may be made available to the public on the court's web site, but is not intended for commercial publication either electronically or in paper form. The ruling or rulings within will govern in this case, but the discussion is not sufficiently novel or instructive to justify commercial publication or subsequent citation in other proceedings.
Plaintiff Larry Conner seeks judicial review of the decision of the Commissioner of Social Security that he is not entitled to receive Disability Insurance Benefits (DIB) or Social Security Supplemental Income (SSI) benefits under the Social Security Act (SSA).
I. Background
This case concerns the Plaintiff's application for DIB and SSI. The Plaintiff initially applied for benefits on February 20, 2001, with an alleged onset of disability of September 5, 2000. After the Plaintiff was denied both initially, and then upon reconsideration, a hearing was held before ALJ Atherly (ALJ) on April 3, 2002. After both claims were denied, another hearing was held before the same ALJ after the Appeals Council remanded the case for a clarification of the Plaintiff's non-exertional limitations. The ALJ issued a second denial in the case on March 18, 2003, finding that under step five a significant number of jobs exist that the Plaintiff can perform. The Appeals Council denied review, thus converting the ALJ's decision into the final decision of the Social Security Administration for purposes of judicial review.
The Plaintiff bases both of his claims on symptoms resulting from diabetes mellitus, alcohol and drug abuse, depression, anxiety, and a personality disorder. Presently the Plaintiff is forty-four years old, has completed a high school education, and has past work experience as a carpenter. He has not worked since his alleged onset date of September 5, 2000.
The medical record details the Plaintiff's several hospitalizations for diabetic ketoacidosis, gastrointestinal bleeding, and vomiting from failure to adequately regulate his blood sugar. (R. at 165-272.) Psychiatric testing indicates that the Plaintiff suffers from depressive disorder, generalized anxiety disorder, mixed personality disorder, alcohol abuse and dependance (with possible partial remission), history of cannabis abuse, and history of cocaine abuse. (R. at 334, 346.) At the hearing, when the ALJ asked about the Plaintiff's ability to return to work, the Plaintiff responded: "I'm not dependable or reliable, and if you're not dependable or reliable you can't hold a job." (R. at 73.) When asked why he could not be relied upon, the Plaintiff answered briefly that it was due to his unregulated blood sugar, but then went on to speak at length of his nervousness and anxiety. ( Id. at 73-74.)
This appeal centers on whether the ALJ's decision at step five is supported by substantial evidence. The Plaintiff first argues that the ALJ, by relying on the grid alone, did not meet his burden of proving that a significant number of jobs are available in the national economy that the Plaintiff can perform. Second, the Plaintiff argues that the ALJ committed error under SSR 82-59 when he failed to investigate the justifiable reasons for the Plaintiff's noncompliance with his diabetes treatment. Third, the Plaintiff contends that the ALJ failed to consider the effect of his impairments in the aggregate, or as a whole. The Defendant essentially argues that the ALJ relied on substantial evidence when making his decision.
II. Discussion
Judicial review of an ALJ's decision is limited to substantial evidence and legal standard determinations. 42 U.S.C. § 405(g). The burden rests on the Plaintiff to prove that he is disabled. Maggard v. Apfel, 167 F.3d 376, 379 (7th Cir. 1999). Therefore, in order to receive social security benefits, the Plaintiff is required to prove that his medical condition prevented him from doing any substantial gainful activity since September 2000. See 20 C.F.R. §§ 404.1505, 416.905.
Judicial review of the ALJ's decision is governed by 42 U.S.C. § 405(g), which provides that "the findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." Substantial evidence is defined as "such evidence as a reasonable mind might accept as adequate to support a conclusion." Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003). "In our substantial evidence determination, we review the entire record; however, we do not substitute our judgment for that of the Commissioner by reconsidering facts, reweighing evidence, resolving conflicts in evidence, or deciding questions of credibility." Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).
Determinations of disability for the purposes of social security disability benefits are made using a five-part test. See 20 C.F.R. §§ 404.1520, 416.920. In short, the five-step test is as follows: 1) Determine if the claimant is engaging in substantial gainful activity (SGA). If so, the claimant is not disabled. 2) Determine if the claimant has a severe impairment that would hinder his or her ability to perform SGA. If no severe impairment exists, the claimant is not disabled. 3) If the claimant's impairment meets or equals one of the impairments in the Listing of Impairments, an allowance will be made on medical factors alone. 4) If the claimant has a severe impairment, but his or her residual functional capacity (RFC) does not prevent performance of previous relevant work (PRW), a finding of not disabled is made. 5) If a claimant has a severe impairment which prevents performance of PRW, the ability to engage in SGA must be determined based on both the individual's RFC to perform work-related functions and the individual's vocational capabilities. Boiles v. Barnhart, 395 F.3d 421, 424 (7th Cir. 2005). At step five the Commissioner has the burden to show that a significant number of jobs exist in the national economy that the plaintiff can perform. 20 C.F.R. §§ 404.1520, 416.920; see also McKinnie v. Barnhart, 368 F.3d 907, 911 (7th Cir. 2004).
The ALJ's decision in this case is based on his finding that the Plaintiff does not pass step five because a significant number of jobs exist in the national economy that the Plaintiff can perform. (R. at 22.) The ALJ found that the Plaintiff passed steps one and two as the Plaintiff had not been employed since before his initial benefits application date and his diabetes, gastrointestinal, and psychological conditions were considered severe impairments. (R. at 19.) The ALJ found that the Plaintiff does not pass step three because his condition does not match any of the listed impairments. ( Id.) At step four, the ALJ concluded, based on his review of the entire medical record, that the Plaintiff has an RFC of unskilled light exertional work. (R. at 20.) In reviewing the Plaintiff's psychological impairments, the ALJ found that the Plaintiff had "no more than mild restrictions in activities of daily living, mild difficulties in the ability to maintain social functioning, or moderate deficiencies of concentration, persistence or pace." (R. at 19-20.) The ALJ concluded that the Plaintiff could not return to his PRW as a carpenter because carpentry requires semiskilled work and more physical exertion than unskilled light exertional work. (R. at 22.) At step five, the ALJ based his negative decision solely upon his determination that the Plaintiff satisfied the criteria of a particular Medical-Vocational Rule (the "grid"). ( Id.) See 20 C.F.R. §§ 404.1569 and 416.969; App. 2, Subpt. P, No. 4, § 200.00(b) .
The Plaintiff first argues that when the ALJ used only the grid at step five he committed error. (Pl.'s Br. at 12-17.) Typically, an ALJ's use of the grid alone is sanctioned when the claimant's severe impairments are only physical in nature or when substantial evidence supports its use. Walker v. Bowen, 834 F.2d 635, 640-641 (7th Cir. 1987); Nelson v. Sec'y of Health Human Servs., 770 F.2d 682, 684-85 (7th Cir. 1985). But "[t]he fact that a claimant suffers from a non-exertional impairment does not . . . immediately preclude utilization of the grid." Nelson, 770 F.2d at 684-685. However, in Warmoth v. Bowen the court states that the "[a]pplication of the grid is precluded, . . . in cases where a claimant's non-exertional limitation restricts the full range of employment opportunities at the level of work that he is physically capable of performing; in such cases, resolution of the issue generally will require consultation of occupational reference materials or the services of a vocational expert." 798 F.2d 1109, 1112 (7th Cir. 1986). "Thus, if non-exertional impairments are severe enough, use of the grid is not appropriate and [the court] will reverse a determination of non-disability based on the grid." Walker, 834 F.2d at 641.
The Plaintiff further cites Kasarsky v. Barnhart, where the court reversed the ALJ's decision because he did not ask the vocational expert at the hearing about concentration, persistence and pace limitations that the ALJ himself marked as "frequent" on a psychiatric evaluation form. 335 F.3d 539, 543-544 (7th Cir. 2003). The court found this to be error because without taking into consideration this specific type of severe non-exertional limitation, it cannot know how the plaintiff would be affected in both his ability to gain employment and maintain that employment. Id; see also Menefee v. Barnhart, No. 1:03-CV-1064-TAB-DFH, slip op. at 7-9 (S.D. Ind. Aug. 3, 2004) (a similar case to the present one decided by Magistrate Judge Baker, who found that a vocational expert was needed to consider the effect of the plaintiff's "moderate" mental impairments on his job prospects); Maciejewski v. Apfel, No. 99 C 6231, 2000 WL 1788437 (N.D. Ill. Dec. 5, 2000) (where the court found that when the plaintiff "often" had deficiencies in concentration, persistence and pace, in addition to other "moderate" and "slight" non-exertional limitations, substantial evidence did not exist to conclude that use of the grid alone was sufficient); Zwick v. Apfel, No. 97 Civ. 5140(JGK), 1998 WL 426800 (S.D.N.Y. July 27, 1998) (where the court found that the ALJ committed error when he relied on the grid alone, and that vocational expert testimony was required when "moderate" limitations in daily living and social functioning could deprive the plaintiff of meaningful employment opportunities).
Here, as in Warmoth and Kasarsky, the Plaintiff has severe non-exertional limitations that require the testimony of a vocational expert or the consultation of occupational reference materials, in addition to the use of the grid. While the counsel for the Defendant stated at oral argument that the regulations require a significant diminishment in the ability to work for there to be required vocational . . . expert testimony, the authority quoted above from Warmoth suggests otherwise. Warmoth, 798 F.2d at 1112. A more correct view is that if the full range of employment opportunities are restricted by non-exertional limitations, then testimony from a vocational expert is generally warranted. Id. Social Security Regulations also require that the effect of the Plaintiff's psychological impairments on his ability to control his diabetes be examined. See generally 20 C.F.R. §§ 404.1523, 416.923, regarding an ALJ's duty to examine the combined effects of the claimant's impairments. The combination of these non-exertional and exertional limitations could reasonably have an effect on the Plaintiff's employment prospects, and therefore should be examined more thoroughly than the ALJ has documented.
While the Defendant does not rebut the Plaintiff's citation of Warmoth, he finds that Kasarsky can be distinguished. (Def.'s Br. at 11.) This argument is not persuasive. The Defendant notes that the finding of a "frequent" mental limitation on a psychiatric evaluation form from Kasarsky does not correspond to the marking of a "moderate" limitation in this case. However, the Plaintiff correctly notes that both "frequent" and "moderate" limitations are considered severe mental limitations; an ALJ does not have the expertise to determine on his own the extent of the erosion of the job market for a claimant with these limitations without the additional help of the rules, regulations, or a vocational expert. See Zolek v. Apfel, 123 F. Supp. 2d 1136, 1142 (N.D. Ill. 2000) (where the court found that "moderate" mental impairments were sufficient to require the assistance of a vocational expert); Newton v. Chater, 92 F.3d 688, 695 (8th Cir. 1996) (where a vocational expert found that moderate deficiencies in concentration, persistence and pace would negatively affect a claimant's ability to maintain employment, regardless of the job's physical requirements).
Second, the Plaintiff argues that the ALJ erred in his assessment of the Plaintiff's credibility because he failed to investigate the Plaintiff's non-compliance with his diabetes regimen. Although the Plaintiff cites SSR 82-59 to support this claim, the controlling ruling in this circumstance is SSR 96-7p. SSR 82-59 applies when the evidence shows that an individual is disabled, but prescribed treatment is expected to improve the disability, and the individual refuses to follow the treatment, the individual is therefore not disabled under the SSA. SSR 96-7p, on the other hand, applies when an ALJ must assess the credibility of an individual's statements. SSR 96-7p provides that:
[An] individual's statements may be less credible if . . . records show that the individual is not following the treatment as prescribed and there are no good reasons for this failure. However, the adjudicator must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment. The adjudicator may need to recontact the individual or question the individual at the administrative proceeding in order to determine whether there are good reasons the individual does not seek medical treatment or does not pursue treatment in a consistent manner.
The Seventh Circuit Court of Appeals in Brindisi ex rel. Brindisi v. Barnhart states that: "[i]n evaluating the credibility of statements supporting a Social Security application, we have noted that an ALJ must comply with the requirements of Social Security Ruling 96-7p." 315 F.3d 783, 787 (7th Cir. 2003) (citation omitted). Furthermore, in Lovellette v. Barnhart, the court found that the ALJ erred when he failed to determine if there was a good reason why the claimant was not complying with prescribed treatment. No. 1:02-CV-278, 2003 WL 21918642 (N.D. Ind. June 25, 2003). The Lovellette court, in remanding the ALJ's decision, stated: "the ALJ has not provided any indication that he considered the reasons why the plaintiff refused to undergo the procedure prior to the hearing, as specifically required by SSR 96-7p, so we are left to speculate as to whether there was good reason for the plaintiff's delay." Id.; see also Parris v. Barnhart, No. 03 C 0251, 2004 WL 3008744 (N.D. Ill. Dec. 28, 2004) (where the court found that the ALJ erred under SSR 96-7p first when he neglected to question the plaintiff about her failure to seek certain medications or treatments, and second when he did not cite any explanation for her lack of treatment in his decision).
Likewise in the instant case, when the Plaintiff stated that he lacked diabetic control (R. at 74), the ALJ made no attempt to determine if his non-compliance was justified. He failed to ask the Plaintiff any questions about his diabetes treatment, as required. ( Id. at 74-75.) The only relevant question the ALJ asked the Plaintiff at this point was in regard to his drinking. (R. at 75.) This does not demonstrate sufficient inquiry into the issue, particularly in light of the Plaintiff's history of depression and anxiety, in addition to his history of alcohol abuse. Further, the ALJ had notice that the Plaintiff's mental limitations could be a factor in his non-compliance with treatment. The record indicates that the Plaintiff's physician Dr. Greene noted that the patient had "inadequate control of diabetes mellitus complicated by underlying depression and mental disease." (R. at 478.) As shown above, under SSR 96-7p and related case authority, the ALJ has a duty to investigate reasons of non-compliance when determining the credibility of a claimant. Instead, the ALJ, even though he noted the Plaintiff's non-compliance (R. at 21), found that the Plaintiff's "subjective complaints and allegations concerning the severity of his impairments are not reasonably consistent with the objective medical and other evidence of record." (R. at 20.) Again, the ALJ does not offer any reasoning or consideration of the cause of the Plaintiff's noncompliance with his diabetes treatment. As in Lovellette, the ALJ must, upon remand, consider why the Plaintiff has difficulty complying with his treatment plan when making a credibility judgment.
Lastly, the Plaintiff's argument that the ALJ has a duty to consider the aggregate effect of the claimant's impairments is valid. (Pl.'s Br. at 16.) See 20 C.F.R. §§ 404.1523, 416.923. However, the Defendant correctly notes that the ALJ considered both mental and physical impairments when making his RFC finding. ( See R. at 20-21, Def.'s Br. at 13.) Thus, instead of making an additional argument, the Plaintiff here is merely adding support to his previous argument that the ALJ must consult a vocational expert in considering the effect of the Plaintiff's mental limitations and physical impairments as a whole.
III. Conclusion
The Commissioner's decision will be VACATED and REMANDED for the following: (1) a supplemental hearing, (2) testimony by a vocational expert regarding the effect of the Plaintiff's non-exertional limitations on his ability to gain employment, (3) an exploration of any reasons why the Plaintiff is unable to fully comply with his medical treatment, and (4) a new decision. An appropriate judgment will be entered contemporaneously with this entry.