Summary
In Goberman, the ALJ failed to consider the combined effects of all impairments, both severe and non-severe. 2001 WL 267209 at *4.
Summary of this case from Gaffney ex rel. J.K. v. SaulOpinion
Case No. 2:99-cv-316-FtM-26DNF
March 12, 2001
Carol Ann Avard, Douglas D. Mohney, Avard Law Offices, P.A., Cape Coral, FL, Counsel for Plaintiffs.
Jacqueline H. Robinson, U.S. Attorney's Office Middle District of Florida, Ft. Myers, FL, Susan R. Waldron, U.S. Attorney's Office Middle District of Florida, Tampa, FL, Mary Ann Sloan, Marilynn B. Kelm, Dennis R. Williams, General Counsel's Office Social Security Administration, Sam Nunn, Atlanta, GA.
OPINION AND ORDER
Both parties have consented to the exercise of jurisdiction by a magistrate judge, and the case has been referred to the undersigned by an Order of Reference dated January 24, 2001. (Doc. 13).
This matter is before the Court on the plaintiff's complaint (Doc. #1), seeking review of the final decision of the Commissioner of Social Security of the Social Security Administration ("the Commissioner") denying his claim for a period of disability and disability insurance benefits (DIB), 42 U.S.C. § 405(g). The Commissioner has filed the Transcript of the proceedings (hereinafter referred to as "Tr." Followed by the appropriate page number), and the parties have filed legal memoranda. For the reasons set forth below, the Court finds that the Commissioner's decision is due to be REVERSED and REMANDED.
I. Social Security Act Eligibility, the ALJ Decision, and Standard of Review
The Plaintiff is entitled to disability benefits when he is unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to either result in death or last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A); 1382c(a)(3)(A). The Commissioner has established a five-step sequential evaluation process for determining whether the plaintiff is disabled and therefore entitled to benefits. See 20 C.F.R. § 416.920(a)-(f); Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997). The plaintiff bears the burden of persuasion through Step 4, while at Step 5 the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987).On or about August 26, 1996, the plaintiff filed for disability and disability insurance, asserting a disability onset date of July 3, 1995. The plaintiff's applications were denied initially, and he exhausted his administrative remedies.
The Decision of Administrative Law Judge (ALJ) Ruben Rivera, Jr., dated November 17, 1999, denied the plaintiff's claim for disability and disability insurance. At Step I the ALJ found the plaintiff had not engaged in substantial gainful activity since July 3, 1995. (Tr. 21). At Step 2 the ALJ found the plaintiff's impairments significantly limited his ability to lift, a basic work activity, and, therefore, he has a severe impairment. (Tr. 22). At Step 3 the ALJ found that the plaintiff's disabling condition would not be expected to last 12 months, which listing section 1.05C requires. The ALJ found that the plaintiffs impairments do not meet or equal the requirements of a listed impairment (SSR 96-6p). (Tr. 22). At Step 4 the ALJ determined the plaintiff was unable to perform his past relevant work as a construction worker. At Step 5 the ALJ found the plaintiff to be a younger individual with an eighth grade education and unskilled work history able to perform the full range of light work. (Tr.22).
The plaintiff sought review by the Appeals Councils, which considered additional evidence but denied review. (R. 7, 8). The evidence submitted by the plaintiff to the Appeals Counsel was a memorandum dated October 1, 1998, from the plaintiff's representative. (Ex. AC-1).
The Court reviews the Decision of the ALJ and that portion of the Appeals Council's decision which considered the new evidence as the final decision of the Commissioner. Falge v. Apfel, 150 F.3d 1320, 1322-23 (11th Cir. 1998), cert. Denied, 119 S.Ct. 907 (1999), Keeton v. Department of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).
In reviewing a decision by the Commissioner, the District Court is bound to uphold the Commissioner's findings if they are supported by substantial evidence and based upon proper legal standards. 42 U.S.C. § 405(g), 1383(c)(3); Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir. 1997). Factual findings are conclusive if supported by "substantial evidence," which is more than a scintilla and consists of such relevant evidence as a reasonable person would accept as adequate to support a conclusion. Lewis v. Callahan, 125 F.3d at 1440. The Court does not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). If the Commissioner's decision is supported by substantial evidence, the Court must affirm even if the evidence predominates against the decision. Miles v. Chater, 184 F.3d at 1400. However, the Court must conduct an exacting examination of whether the Commissioner followed the appropriate legal standards in deciding the claim and reached the correct legal conclusions. Miles v. Chater, 84 F.3d at 1400. The failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted will mandate reversal. Keeton v. Department of Health and Human Servs., 21 F.3d at 1066.
II. Review of Facts and Conclusions of Law
A. Background Facts
The plaintiff was born on September 25, 1950, and was forty-seven years old at the time of the decision. The plaintiff is not a high school graduate and only completed formal education through the eighth grade. The plaintiffs past relevant work was in construction. The plaintiff testified at his hearing that he was a superintendent on his last few jobs but his previous duties of work had included setting steel, reinforcing steel, setting concrete, pouring concrete and digging footers. The plaintiff alleges that his disability began on July 3, 1995, when he was remodeling a home. The plaintiff had climbed up on the house to cut rafters. When the plaintiff climbed down, he felt a tug in his left arm. (Tr. Pg.48). The plaintiff testified he was in extreme pain from the neck down on his left side and behind his left shoulder and he couldn't move. (Tr. Pg. 49). The plaintiff further alleges disability due to diabetes.
On September 22, 1995, the plaintiff had unsuccessful surgery to correct the C7 radiculopathy with foraminal stenosis at C5-6, C6-7, left side (Tr. 158). After the surgery, the plaintiff still had tingling and numbness left thumb, index, and middle finger. He also had absent biceps, brachial radialis, triceps reflexes on the left and diminished strength in the wrist extensor triceps, thenar and hypothenar distribution. The surgery included a hemilaminectomy (remove of vertebral limina) and foraminotomy using a microscope with depression of the left C6-7 nerve roots, done by Dr. Samuel Spiel. (Tr. 158-159).
After the surgery which was performed on September 28, 1995, an MRI documented the continued existence of severe foraminal stenosis at C5-6, C6-7 with herniated disc on the left (Tr. 173), consistent with C7 radiculopathy. The plaintiff was told to stay in traction and lift no more than 20 lbs. (Tr. 173).
On January 5, 1996, when the plaintiff first went to see Dr. Joy Arpin, he had shooting pain down the left arm with persistent numbness in the index and middle finger of the left hand, pain around the elbow, low back pain, neck pain, and shoulder pain. Dr. Arpin reported the plaintiff was in significant distress with any type of neck movement. Dr. Arpin's opinion was the plaintiff had a persistent cervical radicular problem and recommended a two level anterior cervical discectomy and allograft interbody arthrodesis. (Tr. 181). Dr. Joy Arpin reported the plaintiff had trouble getting follow-up treatment through the workers' compensation insurer (Tr. 175) and it appears from the record that the plaintiff did not pursue frequent visits because of the lack of funds to pay for additional treatment. On September 4, 1996, more than twelve months after the accident, Dr. Arpin reported the plaintiff still had chronic disc herniation, with chronic neck and left arm pain and she was unsure whether the numbness in the hand would ever improve. (Tr. 175). The record evidence, therefore, documents that the plaintiffs condition had in fact lasted for 12 months. Additionally, Dr. Arpin recommended a second surgery. However, the record showed there was not a lot of hope that surgery would ever change the plaintiffs numbness in his hand and since the first surgery had been unsuccessful, the plaintiff did not want a second surgery performed.
B. Specific Issues:
I. There was no substantial evidence that the claimant did not meet the medical listing 1.05(C).
Dr. Joy Arpin opined that the Plaintiff met the medical listing of 1.05(C), (Tr. 233). Listing 1.05C, Disorders of the spine, requires:
A vertebrogenic disorder . . . with the following persisting for at least three months despite prescribed therapy and expected to last 12 months. With both 1 and 2:
(1) Pain, muscle spasm, and significant limitation on motion of the spine.
(2) Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss. 20 C.F.R. Part 404, Subpart P, Appendix 1, Section 1.05(c) (1999).
The evidence documents the plaintiffs condition had in fact lasted for 12 months.
2. There was no substantial evidence that the claimant had the capacity to perform the full range of light unskilled work.
On October 8, 1996, the State agency program physician, Aaron Long, M.D., found the plaintiff frequently (up to 2/3rds of a work day), had limitations in the areas of fingering, feeling and handling. (Tr. 185). The ALJ's decision failed to refute this opinion. SSR 96-6 — requires the ALJ to not only consider the program physician opinions because these physicians are considered experts, but in addition, must state the weight he has given the opinions in their decision. Since the primary work requirement of unskilled jobs comprises handling, there would be no substantial evidence the plaintiff could perform the full range of light unskilled work. That is, the full range of work would necessarily be significantly reduced by the existence of non exertional manipulative limitations.
The record shows that the plaintiff lacked the use of his fingers for fine manual dexterity such that he had no feeling in three fingers. The plaintiff gave examples of his inability to work with screws or buttons (Tr. 58) and burning himself with a cigarette because he could not feel it (Tr. 53). In addition, he reported he was not able to lift a 6-pound dumb bell with his left hand without dropping it. The inability to lift up to 10 pounds would have a significant effect on the capacity to perform both sedentary and light work since sedentary work requires occasional lifting of up to 10 pounds and light work requires frequent lifting of up to 10 pounds. 20 C.F.R. § 404.1567(a) and (b).
3. The ALJ failed to evaluate all of claimant's impairments both singly and in combination.
There was evidence in the record that the Plaintiff had several significant non exertional limitations which included: numbness in the left arm, pain in the left arm and neck, affecting reaching, spasms in the back, weakness in the left arm, drowsiness and disorientation due to side effects from Hydrocordone Apap for pain, loss of vision due to diabetes (Tr. 207), headaches and pain affecting concentration. (Tr. 49-52).
The ALJ never assessed the plaintiffs residual functional capacities that remained as a result of his diabetes — decreased vision, lower back pain, shoulder pain, abnormal liver functioning allegedly due to hepatitis, side effects from medication, drowsiness, varicosities with clots in the legs and pain which interfered with concentration. (Tr. 207, 52, 57, 152, 161, 25, respectively). At Step 2 the ALJ states the plaintiff suffers from a chronic cervical disc disease. (Tr. 27). The Eleventh Circuit has held that an ALJ must consider the combined effects of all impairments in evaluating disability even if none of the individual impairments is disabling by itself Walker v. Bowen, 826 F.2d 996, 1001 (11th Cir. 1987).
4. The ALJ relied on the Medical-Vocational Guidelines ("GRIDS") and failed to obtain testimony from a vocational expert.
The Commissioner contends the ALJ properly relied on the "GRIDS" and properly determined the Plaintiff had the residual functional capacity to perform a frill range of light work (Tr. 27).
Since the ALJ found that the claimant could not return to his prior work, the burden of proof shifted to the Commissioner to establish that the claimant could perform other work that exists in the national economy. Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). In determining whether the Commissioner has met this burden, the ALJ must develop a full record regarding the vocational opportunities available to a claimant. Foote, 67 F.3d at 1558; Allen v. Sullivan, 880 F.2d 1200, 1201 (11th Cir. 1989). This burden may sometimes be met through exclusive reliance on the Medical-Vocational Guidelines [the "grids"]. Foote, 67 F.3d at 1558. Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant non exertional factors. 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00 (e); Foote, 67 F.3d at 1559; Heckler v. Campbell, 461 U.S. 458 (1983).
Where non exertional limitations significantly reduce the plaintiffs functioning at the unskilled level, obtaining an opinion from a Vocational Expert is the appropriate way to determine the extent of erosion of the occupational base in light of gross and fine dexterity limitations. Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990) holding that where non exertional impairments significantly limit basic work activities the grids do not apply and a vocational expert should be consulted.
Accordingly, the Clerk shall enter a judgment pursuant to sentence four of 42 U.S.C. § 405(g) reversing the decision of the Commissioner and remanding to allow the Administrative Law Judge to:
1. Properly evaluate the plaintiff's impairments singly and in combination.
2. Consult with and elicit testimony from a vocational expert to properly consider the limitations, if any, of the plaintiff performing work on a regular and sustained basis.
3. Determine the availability of suitable alternative jobs in the local and national economy based on the aforementioned information and documentation.