Opinion
No. C94-2077.
March 31, 1999.
ORDER
This matter is before the Court on Plaintiff's Complaint (Doc. 1), filed November 15, 1994, appealing the Commissioner's denial of her application for Supplemental Security Income (SSI) under Title II upon consideration and reconsideration. Plaintiff's application alleges an inability to work since January 1, 1988 because of a back injury; arthritis in her hands, hips and shoulders; and constant pain.
The Administrative Law Judge (ALJ) rendered his decision denying Plaintiff benefits on July 26, 1994. The Appeals Council of the Social Security Administration denied Plaintiff's request for review, thus, the ALJ's finding that Plaintiff was not under a "disability" as defined by the Social Security Act at any time when she met the earnings requirement under Title II is the final decision of the Commissioner.
The Plaintiff appeals this decision and requests the Court find that she is entitled to benefits or, in the alternative, to vacate the decision and remand to the Commissioner for further proceedings.
Background
Plaintiff was born on May 27, 1942. She obtained an eighth grade education and her GED before becoming certified as a nurses' aide. She had worked exclusively in that profession until pain in her back and arthritis caused her to cease employment. Plaintiff's eligibility for Social Security benefits ended on March 31, 1993.
The Plaintiff testified at the hearing before the ALJ that since she was involved in an automobile accident in the 1960's, she has experienced back problems. The Plaintiff has been seeing a chiropractor since 1981. In recent years, however, the chiropractor has been less able to remedy her pain. The Plaintiff has experienced increasing pain in the last few years in the mid-lower back running into her right side and shoulders. The Plaintiff has experienced a constant aching feeling recently. Occasionally, she experiences a jabbing-type pain when she moves. She also experiences muscle spasms across her lower back.
Plaintiff also reports that she has pain in her left leg when her back "goes out." She also experiences hip pain when she sits, constant left arm pain that increases with activity, shortness of breath, and difficulty climbing stairs. When she stands too long, her left leg becomes numb. She stated that she experiences swelling and numbness in her hands which lasts for several days.
Describing her daily physical activity, Plaintiff stated that it hurts to lift a gallon of milk, that she cannot bend, and that her ability to stand is limited to twenty minutes. She is also limited to sitting for one to two hours, she can only walk two to three blocks, and her ability to twist her body or reach overhead is very limited. She reported that she performs light housework, drives only short distances, and has abandoned her hobbies of fishing and gardening. On "bad days," she is forced to lay down and rest "a couple" times per day. She experiences "bad days" several times each week.
The ALJ found the Plaintiff's subjective complaints of physical limitations and symptom intensity and persistence credible only to the degree reflected in her residual functional capacity because her testimony was not supported, and sometimes contradicted, by the medical evidence in the record. In general, the ALJ based his credibility finding on Plaintiff's failure to seek medical treatment despite her complaints of debilitating pain, her failure to cease smoking despite medical directives to do so, her explanation of lack of funds to obtain treatment despite the fact that her husband was employed, and the lack of medical evidence to support her reports of pain.
A disability evaluation by Dr. Susan Woo in November 1992 revealed that the Plaintiff had normal range of motion in her shoulders except for pain on extreme elevation, had normal upper extremities and, although her shoulders were tender, there was no point tenderness or muscle atrophy. (R. 133.) The examination of her back revealed "Normal configuration. No CVA tenderness. Percussion is tender mostly in the L4 and below area including the sacroiliac areas. She points to the flank areas and the lower rib cage area where the muscles hurt in connection with movement of the shoulders. However, palpation does not reveal any spastic muscles or other abnormality. ROMs of the back are decreased slightly in flexion to 80 degrees, bilaterally but with much discomfort on extremes of all the movements." Id.
Upon examination, neither of Plaintiff's hands showed swelling, however, she did demonstrate a decrease of her grip strength, 3+ in the right hand and 4+ on the left hand, with 5+ being normal. (R. 134.) The doctor also found no obvious arthritic changes of her fingers, despite pain in her fingers and joints from movement. Id. Plaintiff's knee joints showed marked crepitation. Id.
Dr. Woo concluded Plaintiff most likely suffered from degenerative arthritis of all joints involved. She recommended that the Plaintiff take NSAIDs to help with her arthritis symptoms and urged her to quit smoking. Id. At least two physicians reviewed the Plaintiff's case and the evaluation by Dr. Woo. The doctors who reviewed the evidence stated that the findings were so minimal that the Plaintiff should be limited to no greater than a medium exertional capability with other limitations. (R. 15.) The ALJ based his decision to deny benefits primarily on this evidence.
The Plaintiff's chiropractor, Dr. W. N. Peterson, D.C., stated that the Plaintiff suffered from intersegmental dysfunction of C-2-T-5-T-8-T-12-L-4-L-5, rotary scoliosis of the thoracic/lumbar spine, decrease disc spacing (degenerative arthritis), extreme reversal of the cervical spine, and myofascial/myofibralgia syndrome. (R. 144, 162.) He noted that her condition was aggravated by excessive movement and suggested her lifting and carrying be restricted to five pounds. Id.
The ALJ gave the chiropractor's medical evidence less weight than the evidence provided by medical doctors since reports prepared by chiropractors do not constitute "acceptable medical evidence" pursuant to 20 C.F.R. § 404.1513. (R. at 15.) Such reports do constitute "other sources" that can be used to understand how am impairment affects an individual's ability to work. 20 C.F.R. § 404.1513(e).
An April 1993 exam by Dr. Thomas Patee, the Plaintiffs' primary care physician (R. 179), revealed that the Plaintiff experienced decreased abduction of her shoulder bilaterally, slightly decreased external rotation of her hips, negative straight leg raising, normal DTR's, biceps, triceps, and knee, and questionable decreased sensation of her left lower extremity. (R. 151.) Tests performed based on her complaints of pain produced normal results, and the doctor concluded that Plaintiff suffered from multi-polyathraglis mainly localized in the low back, however no evidence of rheumatoid or other connective tissue disease was present. ( Id. at 152.) In June 1993, Dr. Patee noted that Plaintiff had moderate trigger points in the lower lumbar area only, negative straight leg raising, and questionable slightly decreased left Achilles reflex, but her lower extremity strength was normal. Id. Despite her low back pain with other diffuse arthralgias, she had no evidence of active synovitis and did not meet the criteria of fibromyalgia. Id.
Plaintiff visited Dr. Arnold Delbridge, an orthopedic surgeon in Waverly, Iowa, on several occasions. At an examination on November 5, 1993, Dr. Delbridge noted that the Plaintiff had normal range of motion for all joints, although she did experience some pain, and stiff motion that suggested either fibromyalgia or rheumatoid arthritis. (R. at 165.) Plaintiff's X-rays showed "spurring of the lumbar spine . . . some facet joint osteoarthritis and a hint of disc space narrowing at L2 and L3 although it is minimal." Id. The doctor diagnosed the Plaintiff with fibromyalgia, low grade polyarthritis with a decreased grip in both hands and evidence of hand inflammation at times, pain secondary to fibromyalgia of the shoulders and upper back, facet joint osteoarthritis of her lumbar spine, chronic obstructive lung disease and cigarette smoking, and mallet finger right ring finger. Id. After examining the Plaintiff, Dr. Delbridge suspected that the Plaintiff suffered from fibromyalgia. Dr. Delbridge recommended a consultation with a rheumatologist, Dr. George Ho. Dr. Ho confirmed that she did indeed suffer from fibromyalgia. (R. 179-80.)
Dr. Ho's December 1993 examination revealed diffuse swelling of Plaintiff's hands with tenderness across the PIP and MCP joints, and tenderness in her lower back with numerous trigger points in the paraspinal muscles in the lumbosacral region. (R. at 179.) Her joints were otherwise normal. While X-rays revealed disc space narrowing, facet joint osteoarthritis, and a slight degree of spondylolisthesis, they also showed no significant degenerative or arthritic changes in the bones or joints of the hands and wrists. (R. at 179, 182-83.) The doctor diagnosed the Plaintiff with possible hypertrophic osteoarthropathy, low-grade polyarthritis, degenerative disc disease, and facet joint osteoarthritis. (R. at 180.)
After the consultation with Dr. Ho, Dr. Delbridge recommended that Plaintiff lift no more than ten pounds, start work on a half-day basis, stand no more than one and one-half to two hours at a time with at least one hour of sitting during a four hour day, no repeated manipulation of fine objects because that would cause her hands to "flare up," no repetitive hard gripping and no repetitive twisting or turning of her neck and upper back. (R. at 166.) The doctor noted that the Plaintiff was developing osteoarthritis or Heberden's nodes of her distal fingers and that her situation could not be improved with surgical intervention or additional medication. Id.
In a letter to Plaintiff's counsel signed on May 12, 1994, Dr. Delbridge stated that the restrictions he placed on the Plaintiff in November 1993 would have been in place in November 1992 if he had seen her at that time. (R. at 196.) He expressed doubt that the limitations would have been as restrictive prior to 1992: "There is some possibility that [the Plaintiff] would have had the limitations she has now earlier, but it is doubtful the limitations would be as severe as they are now prior to 1992." Id. Since Dr. Delbridge retrospectively diagnosed the Plaintiff, he effectively determined that the Plaintiff suffered from substantial exertional limitations in November 1992. This time period is especially relevant as the Plaintiff's date last insured (DLI) was March 31, 1993. The ALJ gave the opinions of Dr. Delbridge diminished weight because he examined the Plaintiff more than seven months after her insured period ended and, therefore, he was not a treating source while Plaintiff was in insured status. (R. at 16.)
After considering Plaintiff's testimony and medical evidence, the ALJ formed the following hypothetical:
. . . an individual who was 50 years old as of the date last insured for Title II benefits, and 45 years old as of the date of the alleged onset date of disability. She is a female. She has a General Equivalency Diploma for high school, plus training as a certified nurse aide. And she has past relevant work . . . She has a medically determinable disorder resulting in complaints of pain in multiple joints and the back, and probable chronic obstructive pulmonary disease, and high blood pressure . . . Except for lifting [no] more than 20 pounds, routinely lifting 10 pounds, with no standing or walking or more than + to one hour at a time; no sitting for more than one hour at a time; with no repetitive bending, stooping, twisting, squatting, kneeling, crawling or climbing. No work requiring repetitive pushing or pulling; no work requiring continuous strong gripping. This individual should not have work at unprotected heights, or in the presence of excessive dust or fumes.
(R. at 72-73.) In response to the hypothetical, the vocational expert opined that, while the work Plaintiff had performed in the past would exceed the exertional limitations of the hypothetical and she had no transferable skills, Plaintiff was capable of performing a number of light work activity jobs. (R. at 73.) These included small parts assembler or bench assembler, marker or labeler, and inspector and hand packager. Id. When the additional limitation of no repetitive gripping was added, the vocational expert stated that Plaintiff would be effectively eliminated from competitive employment. (R. at 76.) She would also be eliminated if she were only able to work four hour days and required to take frequent rests. (R. at 76-77.) Based on the testimony of the vocational expert, the ALJ concluded that Plaintiff did not qualify as "disabled" for purposes of Social Security benefits because a sufficient number of jobs in the national economy existed that the Plaintiff could perform.
Standard of Review
On appeal, the Court is limited to determining whether the ALJ's decision is supported by substantial evidence on the record as a whole. The Eighth Circuit has stated the standard of review for appeals from a denial of Social Security benefits:
On review, it is [a court's] duty to determine whether substantial evidence in the record as a whole supports the Secretary's decision. 42 U.S.C. § 405(g) (1988); Jeffery v. Secretary of Health Human Servs., 849 F.2d 1129, 1132 (8th Cir. 1988). As we have repeatedly noted, this standard of review involves more than a mere search for evidence supporting the Secretary's findings. See, e.g., McMillian v. Schweiker, 697 F.2d 215, 220 (8th Cir. 1983). [A court] must examine all of the evidence on the record, Brand v. Secretary of Dep't of Health, Educ. Welfare, 623 F.2d 523, 527 (8th Cir. 1980), and take into account whatever fairly detracts from its weight. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 95 L. Ed. 456, 71 S. Ct. 456 (1951); Tome v. Schweiker, 724 F.2d 711, 713 (8th Cir. 1984).Delrosa v. Sullivan, 922 F.2d 480, 484 (8th Cir. 1991).
Determination of Disability
Determination of a claimant's disability involves a five step evaluative process. 20 C.F.R. § 404.1520(a-f). The claimant carries the burden of proof at the first four steps, whereupon the burden shifts to the Commissioner on the fifth step. In this case, it is undisputed that Plaintiff met her burden of proving at step four that she cannot perform the requirements of her past relevant work. The burden of proof, therefore, shifted to the Commissioner on the fifth and final step to prove that Plaintiff can perform other jobs that exist in significant numbers in the national economy. Smith v. Shalala, 46 F.3d 45, 47 (8th Cir. 1995); 20 C.F.R. § 404.1520(f).
The issue presented by the Plaintiff is whether the ALJ's finding regarding her residual functional capacity was supported by substantial evidence in the record as a whole. Plaintiff contends that the ALJ did not fully and accurately consider all exertional and non-exertional restrictions in determining her residual functional capacity. The Plaintiff appears to argue that the ALJ improperly discounted Plaintiff's testimony regarding her subjective complaints of pain and Dr. Delbridge's retrospective medical findings and opinions laid out in his letter of May 12, 1994.
The ALJ found the Plaintiff's residual functional capacity to encompass the following:
Linda Epperson has the residual functional capacity to perform the physical exertional and nonexertional requirements of work except for: She can lift 20 pounds maximum and 10 pounds repeatedly. She can stand one-half to one hour or walk one-half to one hour at a time. She can sit one hour at a time. She must avoid repetitive bending, stooping, twisting, squatting, kneeling, crawling, climbing, and pushing and pulling. As mentioned, she must avoid activities requiring continuous strong grip. She must avoid heights, dust, and fumes.
(R. at 22.) Among the restrictions Plaintiff seeks to be included in her residual functional capacity are no repetitive gripping, no repetitive use of her hands, not more than a four hour work day, and resting fifteen to thirty minutes an average of two to three times per week. (See R. at 76.) These restrictions mirror those suggested by Dr. Delbridge.
The record in this case reflects that the Plaintiff would have qualified as disabled if the ALJ would have included either the repetitive gripping limitation or the limit of four hours of work a day. Consequently, the ALJ's decision to exclude the opinion of the treating physician effectively determined the outcome in this case.
In discounting Dr. Delbridge's opinion, the ALJ cited the time of his examination (seven months after Plaintiff's insured period), the doctor's reliance on Plaintiff's subjective allegations of impairment which the ALJ had already rejected in part based on a perceived lack of credibility, and the fact that a treating physician's conclusions that a patient is disabled or unable to work do not alone constitute a sufficient basis for a finding of disability. Since the ALJ discounted Dr. Delbridge's retrospective diagnosis, the ALJ determined that the Plaintiff's condition deteriorated to the point of disability after the expiration of her insured status on March 31, 1993 and she was not entitled to benefits.
Retrospective medical diagnoses constitute relevant evidence of pre-expiration disability. Jones v. Chater, 65 F.3d 102, 104 (8th Cir. 1995). It is improper for an ALJ to reject a doctor's retrospective diagnosis when the retrospective diagnosis is supported by evidence in the Plaintiff's medical records. Grebenick v. Chater, 121 F.3d 1193, 1199 (8th Cir. 1997). Where the impairment onset date is critical, retrospective medical opinions alone will usually not suffice unless the claimed disability date is corroborated, as by subjective evidence from lay observers like family members. Jones, 65 F.3d at 104 (emphasis added).
While it is true that Dr. Delbridge's medical opinion standing alone without corroboration would not prove conclusive in determining disability status, Grebenick, 121 F.3d at 1199, additional evidence exists in this record to reinforce Dr. Delbridge's retrospective diagnosis. In deciding that the Plaintiff was not disabled, the ALJ relied primarily on a disability evaluation performed by an examining physician, Dr. Woo, in November 1992. While Dr. Woo's evaluation provided the basis for the ALJ's finding, Dr. Woo's notes also provide evidence of the Plaintiff's deteriorating degenerative arthritis. Dr. Woo stated that the Plaintiff experienced decreased grip strength and marked crepitation in the knee joints. Dr. Woo concluded her November 1992 exam by stating that Plaintiff "most likely has degenerative arthritis of all joints involved." (R. 134.) Dr. Woo recommended that the Plaintiff be placed on "any of the new NSAIDs," a group of drugs used to treat the symptoms of arthritis. Id.
Crepitation is defined as the noise made by rubbing together the ends of a fractured bone. Dorland's Illustrated Medical Dictionary (25th ed., 1974).
The additional objective medical evidence in Dr. Woo's evaluation serves to reinforce Dr. Delbridge's retrospective diagnosis. Additionally, as a treating physician, Dr. Delbridge was acutely aware of the Plaintiff's medical condition. Presumably, he based is retrospective diagnosis on the several occasions he examined the Plaintiff and information he received from the rheumatologist (Dr. Ho) to whom he referred the Plaintiff. Evidence from the treating physician is accorded greater deference and carries greater weight than other non-treating physicians. 20 C.F.R. § 404.1527(d)(2). Moreover, Dr. Delbridge, as an orthopedic surgeon, possesses special expertise in diseases of arthritis. The opinion of a specialist carries more weight in disability benefits cases than the opinion of a non-specialist. Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998); Stephens v. Heckler, 766 F.2d 284, 289 (7th Cir. 1985) (a specialist may contribute more knowledge to the administrative process after a one-hour examination than the general practitioner contributes after years on the case) (Easterbrook, J.).
Accordingly, the ALJ should have considered Dr. Delbridge's medical conclusions when making a disability determination of the Plaintiff. Since the vocational expert stated that the Plaintiff would be effectively eliminated from competitive employment if (1) the additional limitation of no repetitive gripping was added (R. at 76.) or (2) the Plaintiff were only able to work four hour days (R. at 76-77.), Dr. Delbridge's opinion would support a finding that the Plaintiff was disabled. When the ALJ failed to consider the opinion of Dr. Delbridge and found that the Plaintiff did not suffer from a disability on her DLI, he committed reversible error.
In summary, the Court finds that the Plaintiff's condition deteriorated to the point of disability at some date before March 31, 1993. Based on Dr. Woo's diagnosis, the Plaintiff was not disabled in November 1992. However, Dr. Delbridge determined that the Plaintiff could not perform repetitive gripping and was limited to a four-hour work day after several examinations beginning in November 1993. He also stated that these limitations "would probably have been in force" since November 1992. (R. 196.) The critical date for the purposes of this case is March 31, 1993-the Plaintiff's DLI. While it is not absolutely clear that the Plaintiff was disabled in November 1992, it is clear that she was suffering from a degenerative disease and her condition was deteriorating in the 1992-1993 timeframe.
In light of these circumstances, this Court finds that the ALJ should not have completely discounted Dr. Delbridge's medical diagnosis in denying the Plaintiff benefits. Dr. Delbridge's diagnosis is supported by additional objective medical evidence from Dr. Woo's examination, and the diagnosis is probative to the question of whether the Plaintiff was disabled on March 31, 1993. Based on the evidence in the record, the Court is convinced that the ALJ based his decision on an improper hypothetical question which failed to take into account Dr. Delbridge's diagnosis. When the Court considers Dr. Delbridge's diagnosis, it is apparent that no substantial evidence exists in the record to support the ALJ's decision that the Plaintiff was not disabled. Accordingly, the decision of the ALJ is reversed.
In making this finding, the Court need not reach the issue of whether the ALJ properly discounted the Plaintiff's subjective complaints of pain. Dr. Delbridge's retrospective diagnosis is reinforced with evidence in the record independent of the Plaintiff's subjective complaints of pain.
In this case, where evidence is indicative of a disability and additional hearings would serve no useful purpose, an immediate order granting benefits is appropriate. Andler v. Chater, 100 F.3d 1389, 1394 (8th Cir. 1996).
Accordingly, IT IS ORDERED that the Plaintiff's motion is GRANTED, the Defendant's motion is DENIED, and the Commissioner's decision is REVERSED. This case is remanded to the ALJ for the sole purpose of calculating the benefits due to the Plaintiff.