Opinion
CV 01-6050-BR
August 15, 2001
MARTIN J. MCKEOWN, for Plaintiff.
MICHAEL W. MOSMAN United States Attorney, WILLIAM W. YOUNGMAN Assistant, United States Attorney, NORMAN N. BARBOSA Special Assistant United States Attorney, for Defendant.
OPINION AND ORDER
Plaintiff Harley K. Davis seeks judicial review of a final decision of the Commissioner of the Social Security Administration (SSA) denying his application for disability insurance (DI) benefits. This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Following a thorough and careful review of the record, the Court concludes this matter must be remanded for further proceedings.
ADMINISTRATIVE HISTORY
Davis filed an application for DI benefits on February 3, 1997. Tr. 133-35. Davis alleged he had become unable to work on February 9, 1996, due to carpal tunnel syndrome, a variety of mental impairments, and injury of the lower back and right knee. Tr. 147. Davis later stipulated to a disability onset date of March 1, 1996. Tr. 46. His application was denied initially and upon reconsideration. Tr. 114-16, 119-21.
Davis requested a hearing before an Administrative Law Judge (ALJ). Tr. 122. At a hearing held before an ALJ on July 22, 1998, Davis was represented by an attorney. Tr. 46. Davis, a medical expert (ME), and a vocational expert (VE) testified at the hearing. Tr. 46-97.
On August 10, 1998, the ALJ issued a partially favorable decision awarding Davis benefits for a closed period from March 1, 1996, through August 25, 1997. Tr. 27-34. Davis requested review of the ALJ's decision and submitted additional evidence to the Appeals Council for the SSA. Tr. 9-21. The decision of the ALJ became the final decision of the Commissioner on December 28, 2000, when the Appeals Council denied Davis's request. Tr. 6-7. See Russell v. Bowen, 856 F.2d 81, 83-84 (9th Cir. 1988).
FACTUAL HISTORY
Davis was born on March 13, 1957, and was 41 years old at the time of the ALJ hearing. Tr. 44, 50. He finished the tenth grade, mostly in special education classes. Tr. 28. His past relevant work experience consists of janitor and forklift operator. Tr. 29. Other than two brief unsuccessful work attempts, Davis has not worked since the alleged onset date. Tr. 29, 58. Davis now alleges disability based on borderline intellectual functioning, obsessive-compulsive disorder, carpal tunnel syndrome, attention deficit hyperactivity disorder, hypertension, hyperlipidemia, and pain in the lower back and lower right leg. Tr. 28.
The Court has reviewed Davis's medical records; the transcript of the July 22, 1998, ALJ hearing; and other evidence of record, including evidence submitted for the first time to the Appeals Council. Tr. 1-497.
STANDARDS
A claimant is disabled if he or she is unable "to engage in any substantial gainful activity by reason of any 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. § 423(d)(1)(A). The initial burden of proof rests upon the claimant to establish his or her disability. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996). The Commissioner bears the burden of developing the record. DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991).
The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g). See also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews, 53 F.3d at 1039. The court must weigh all of the evidence whether it supports or detracts from the Commissioner's decision. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be upheld, however, even if "the evidence is susceptible to more than one rational interpretation." Andrews, 53 F.3d at 1039-40.
The decision whether to remand for further proceedings or for immediate payment of benefits is within the discretion of the court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.), cert. denied, 121 S.Ct. 628 (2000).
SUMMARY OF ALJ'S FINDINGS
The ALJ must engage in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. § 404.1520. Below is a summary of the five steps, which also are described in Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999):
Step One. The Commissioner determines whether claimant is engaged in substantial gainful activity. If so, claimant is not disabled. If claimant is not working in a substantially gainful activity, the Commissioner proceeds to evaluate claimant's case under Step Two. 20 C.F.R. § 404.1520(b).
Step Two. The Commissioner determines whether claimant has one or more severe impairments. If not, claimant is not disabled. If claimant has a severe impairment, the Commissioner proceeds to evaluate claimant's case under Step Three. 20 C.F.R. § 404.1520(c).
Step Three. Disability cannot be based solely on a severe impairment; therefore, the Commissioner next determines whether claimant's impairment "meets or equals" one of the impairments listed in the SSA regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1. If so, claimant is disabled. If claimant's impairment does not meet or equal one listed in the regulations, the Commissioner's evaluation of claimant's case proceeds under Step Four. 20 C.F.R. § 404.1520(d).
Step Four. The Commissioner determines whether claimant is able to perform work he or she has done in the past. If so, claimant is not disabled. If claimant demonstrates he or she cannot do work performed in the past, the Commissioner's evaluation of claimant's case proceeds under Step Five. 20 C.F.R. § 404.1520(e).
Step Five. The Commissioner determines whether claimant is able to do any other work. If not, claimant is disabled. If the Commissioner finds claimant is able to do other work, the Commissioner must show a significant number of jobs in the national economy exist that claimant can do. The Commissioner may satisfy this burden through the testimony of a VE or by reference to the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner demonstrates a significant number of jobs exist in the national economy that claimant can do, claimant is not disabled. If the Commissioner meets this burden, claimant is disabled. 20 C.F.R. § 404.1520(f)(1). See also Tackett, 180 F.3d at 1099.
The burden of proof is on the claimant as to Steps One through Four. Tackett, 180 F.3d at 1098. At Step Five, the burden shifts to the Commissioner to show a significant number of jobs exist in the national economy that claimant can perform. Id.
In this matter, the ALJ first determined Davis had not engaged in substantial gainful activity after the alleged onset date of March 1, 1996. Tr. 32. The ALJ also found Davis had severe impairments consisting of borderline intellectual functioning, obsessive-compulsive disorder, left upper extremity pain, right lower extremity pain, hypertension, and hyperlipidemia. Id. In addition, the ALJ determined Davis's carpal tunnel syndrome precluded repetitive use of his wrists between March 1, 1996, and August 25, 1997. Id.
The ALJ further concluded Davis did not have an impairment, or any combination of impairments, that meets or is medically equal to the criteria for any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.
The ALJ summarized Davis's residual functional capacity as follows:
The claimant's impairments prevent him from performing the full range of light duty work. Further, the claimant experiences moderate limitations based on his mental impairments. These enable the claimant to perform only simple repetitive tasks. . . . Between March 1, 1996, and August 25, 1997, the claimant was unable to perform activity requiring bilateral manual dexterity.
Tr. 33. The ALJ concluded Davis is unable to perform his past relevant work. Id.
The ALJ also determined Davis's inability to perform activity requiring bilateral manual dexterity between March 1, 1996, and August 25, 1997, rendered him unable to perform any other work. Thus the ALJ found Davis disabled for that closed period based on Rule 201.00(h) of the Medical-Vocational Guidelines. Id. The ALJ determined, however, Davis was able as of August 25, 1997, to perform substantial gainful activity at jobs existing in significant numbers in the national and regional economy. Id. Such jobs were identified as button assembler, jewel stringer, and machine egg washer. Tr. 31.
DISCUSSION
Davis argues the Commissioner's decision should be reversed because the ALJ erred by: (1) finding Davis's carpal tunnel syndrome no longer prevented him from engaging in substantial gainful activity after August 25, 1997, and (2) not considering the combined effect of both his physical and mental impairments on Davis's ability to engage in substantial gainful activity. With regard to the latter assignment of error, Davis contends his physical and mental impairments combine to medically equal the criteria for a listed impairment.
1. Carpal Tunnel Syndrome After August 25, 1997.
The medical evidence indicates Mark Jewell, M.D., performed a "left carpal tunnel release" on Davis on June 11, 1997. Tr. 493. On March 22, 1998, Dr. Jewell stated in a letter to the SSA that he last saw Davis on August 25, 1997. Id. According to Dr. Jewell, Davis reported at that time that his left hand had "improved dramatically following surgery" and that his right hand was "no longer symptomatic." Id. The ALJ relied on this report and concluded Davis's carpal tunnel syndrome was no longer a severe impairment after August 25, 1997; that is, it did not preclude manual bilateral dexterity after that date. Tr. 31. At the beginning of the ALJ hearing, however, the ALJ asked Davis to stipulate that his physical limitations were accurately characterized by a residual functional capacity (RFC) assessment (Tr. 446-55) completed as part of the administrative disability determination. Tr. 46. This RFC assessment reflected Davis was limited in the upper extremities and had "no forceful or repetitive push, pull, grip, grasp, twist or flex [with upper extremities]." Tr. 449. In asking Davis to make this stipulation, the ALJ indicated the assessment would apply to Davis for the "relevant period." The ALJ did not indicate he might find subsequently that this period ended on August 25, 1997. Tr. 46.
Based on the record before this Court, the ALJ's reliance on Dr. Jewell's report when the ALJ limited the RFC assessment to a closed period unfairly deviated from the stipulation made at the hearing. In his decision, the ALJ justified this deviation by finding Dr. Jewell's report, as a medical opinion from a treating source, should be given controlling weight. Tr. 31. The ALJ also noted the record lacked "any type of credible sign or laboratory finding" required to substantiate continuing symptoms related to carpal tunnel syndrome after August 25, 1997. Id.
For a medical opinion to be given controlling weight, it must be "well-supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with the other substantial evidence." 20 C.F.R. § 404.1527(d)(2). See also Social Security Ruling (SSR) 96-2p. Here Dr. Jewell's opinion is supported in the record by brief chart notes describing a single visit with Davis on August 25, 1997. Tr. 494. Thus, Dr. Jewell's opinion is not "well-supported" by medical evidence. In addition, while Dr. Jewell's opinion is not necessarily inconsistent with other substantial evidence in the record, the Court notes the ALJ refused to allow Davis to present lay testimony to corroborate his alleged symptoms. Tr. 31. Such testimony may have served to sufficiently refute Dr. Jewell's opinion. SSR 96-2p ("[A]ny kind of medical or nonmedical evidence can potentially satisfy the substantial evidence test."). The ALJ, therefore, erred in giving Dr. Jewell's opinion controlling weight.
With regard to the lack of medical findings to support Davis's claim of continuing pain and limitation from carpal tunnel syndrome, Davis submitted to the ALJ the results of an electrodiagnostic examination of Davis's wrists performed on August 12, 1998, by Bryan L. Andresen, M.D. Tr. 18-21. When he sent the report, Davis apparently was unaware the ALJ had already issued his decision three days earlier. Tr. 18. Davis then submitted this evidence to the Appeals Council and contended it demonstrated his carpal tunnel syndrome did not improve appreciably after August 25, 1997. Tr. 5, 12-14. The Appeals Council found this new evidence did not provide a basis for changing the ALJ's decision. Tr. 6. Davis now relies on this same evidence in his arguments to this Court.
Even though this report was not before the ALJ, the Court may consider it because the Appeals Council addressed it in the context of denying Davis's request for review. Id. Harman, 211 F.3d at 1180 (citing Ramirez v. Shalala, 8 F.3d 1449 (9th Cir. 1993)). This report appears to include the signs or laboratory findings derived from medically-acceptable diagnostic techniques that the ALJ found lacking in the record. 20 C.F.R. § 404.1528. The ALJ, however, rather than the Court, should assess the value of this new evidence. Harman, 211 F.3d at 1180. See also McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989).
Because the ALJ erred when he gave Dr. Jewell's opinion controlling weight, and in light of Davis's submission of new and material evidence, this matter must be remanded to allow the ALJ to consider Dr. Andresen's objective medical findings (and any other medical evidence Davis may provide) and to determine whether the new evidence substantiates Davis's claims of continuing pain and limitation from carpal tunnel syndrome. Harman, 211 F.3d at 1180. See also Embrey v. Bowen, 849 F.2d 418, 423-24 (9th Cir. 1988); Burton v. Heckler, 724 F.2d 1415, 1417-18 (9th Cir. 1984). In addition, the ALJ must also allow Davis to present any evidence, including lay testimony, that may corroborate his symptom allegations.
2. Davis's Physical and Mental Impairments in Combination.
Davis contends the ALJ erred by not considering the combined effect of both his physical and mental impairments on his ability to engage in substantial gainful activity. Davis contends his physical and mental impairments combine to medically equal the criteria for Listing Section 12.06 Anxiety Related Disorders. Specifically, he argues medical equivalence is established because: (1) the ALJ made a finding that Davis's impairments meet the paragraph A criteria of this listing, and (2) his pain symptoms combined with his mental impairments impose functional limitations that meet the paragraph B criteria.
The criteria for 12.06 Anxiety Related Disorders:
In these disorders anxiety is either the predominant disturbance or it is experienced if the individual attempts to master symptoms; for example, confronting the dreaded object or situation in a phobic disorder or resisting the obsessions or compulsions in obsessive compulsive disorders.
The required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in both A and C are satisfied.
A. Medically documented findings of at least one of the following:
1. Generalized persistent anxiety accompanied by three out of four of the following signs or symptoms: a. Motor tension; or b. Autonomic hyperactivity; or c. Apprehensive expectation; or d. Vigilance and scanning; or
2. A persistent irrational fear of a specific object, activity, or situation which results in a compelling desire to avoid the dreaded object, activity, or situation; or
3. Recurrent severe panic attacks manifested by a sudden unpredictable onset of intense apprehension, fear, terror and sense of impending doom occurring on the average of at least once a week; or
4. Recurrent obsessions or compulsions which are a source of marked distress; or
5. Recurrent and intrusive recollections of a traumatic experience, which are a source of marked distress; AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration, OR
C. Resulting in complete inability to function independently outside the area of one's home.
The ALJ found Davis met the paragraph A criteria for Listing Section 12.06 based on the presence of "recurrent obsessions or compulsions which are a source of marked distress." Tr. 37. He also concluded, however, Davis's impairments met neither the paragraph B nor paragraph C criteria for the listing section. Tr. 37-38. Davis asserts the ALJ would have found greater limitation with regard to Davis's "restrictions of activities of daily living" (B.1.) and "deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner" (B.2) if the ALJ properly had considered Davis's physical pain combined with the effects of his obsessive-compulsive disorder and borderline intellectual functioning.
The Court agrees with the Commissioner that the ALJ duly considered the functional limitations imposed by Davis's mental impairments. The ALJ questioned the ME at the ALJ hearing with regard to each functional limitation listed in the paragraph B criteria and deferred to the ME's findings in his decision. Tr. 29, 70-1. The ALJ did not incorporate, however, the possible limitations arising from Davis's pain symptoms into the mental impairment listing analysis. As noted in Lester v. Chater:
Pain merges into and becomes a part of the mental and psychological responses that produce functional impairments. The components are not neatly separable. Given that the consequences of [the claimant's] physical and mental impairments are so inextricable linked, the Commissioner must consider whether these impairments taken together result in limitations equal in severity to those specified by the listings. . . . (Emphasis in the original.)81 F.3d 821, 830-31 (9th Cir. 1996). The ALJ did not include pain in his listing analysis because he improperly relied on Dr. Jewell's opinion to dismiss Davis's allegations that symptoms from carpal tunnel syndrome persisted after August 25, 1997.
As discussed above, the ALJ also did not permit Davis to present lay testimony to corroborate his symptom allegations. Tr. 31. In addition, the hearing transcript contains practically no testimony from Davis himself as to continuing pain. Tr. 50-67. Davis's failure to testify at the hearing about his physical impairments might be explained by reliance on his putative agreement with the ALJ to use the RFC assessment as the description of his physical functional limitations. Nonetheless, the ALJ has a special duty to fairly and to fully develop the record. Smolen v. Chater, 80 F.3d 1273, 1283 (9th Cir 1996).
The Commissioner contends a claimant generally must establish that he or she meets or equals the criteria for a listed impairment based on medical findings. Sullivan v. Zebley, 493 U.S. 521, 531 (1990). Even so, the SSA specifically has recognized, for listed mental impairments, testimony from lay persons and the claimant are cognizable sources of evidence to demonstrate the claimant meets the functional limitation criteria. 20 C.F.R. § 404.1513(e), 404.1520a and Part 404, Subpart P, Appendix 1, Section 12.00. Accordingly, the ALJ must solicit and consider evidence from Davis and from lay persons in order to assess Davis's functional limitations within the context of paragraph B of Listing Section 12.06. The ALJ must then determine whether pain in combination with Davis's mental impairments imposes sufficient functional limitation to meet or to equal the paragraph B criteria.
3. Remand for Further Proceedings Is Warranted
Davis argues judgment should be entered in his favor for an award of continuing benefits from the date the ALJ found him no longer disabled, August 25, 1997. If the matter is remanded, the Commissioner maintains it should be for further proceedings rather than for a finding of disability.
A decision whether to remand for further proceedings generally "turns upon the likely utility of such proceedings." Harman, 211 F.3d at 1179 (citation omitted). If the issue is the ALJ's rejection of evidence, a remand for an award of benefits is appropriate when:
(1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.
Id. at 1178. (citation omitted). See also Smolen, 80 F.3d at 1292 (court "may direct an award of benefits where the record has been fully developed and where further administrative proceedings would serve no useful purpose.").
The Court finds a remand for award of benefits is not warranted at this point. Dr. Andresen's August 12, 1998, report was submitted after the ALJ made his decision; thus, the ALJ did not reject the report. As explained above, the ALJ must be given the opportunity to consider and to assign proper weight to this evidence. Similarly, the Court cannot find Davis's impairments equal the criteria for Listing Section 12.06 as a matter of law. As it stands, the record lacks the evidentiary support for such a determination. This is an outstanding issue, therefore, that must be resolved after consideration of any additional evidence, including testimony, that Davis may be able to provide.
To summarize, the ALJ must on remand: (1) consider Dr. Andresen's August 12, 1998, report and findings, and any other medical evidence that Davis can provide, to determine whether it constitutes sufficient objective medical evidence to support Davis's claim that carpal tunnel syndrome continued to be a "severe" physical impairment after August 25, 1997; (2) develop the record with regard to any symptoms of pain or functional limitation resulting from Davis's alleged carpal tunnel syndrome after August 25, 1997; and (3) determine whether Davis continued to be disabled after August 25, 1997.
CONCLUSION
Based on the foregoing, the Commissioner's decision is REVERSED and REMANDED for further proceedings consistent with this Opinion.
IT IS SO ORDERED.