Opinion
Civ. Action No. 3:01CV616
October 18, 2002
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
This matter is before the Court for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) on cross motions for summary judgment. Plaintiff Steven J. Greene seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of the Defendant Commissioner denying his application for supplemental security income (SSI) and social security disability insurance benefits (DIB). The Commissioner's final decision is based on a finding by an Administrative Law Judge (ALJ) that, as defined by the Social Security Act (the Act) and applicable regulations, the Plaintiff was not disabled.
For the reasons discussed below, it is the Court's recommendation that the Plaintiff's Motion for Summary Judgment be GRANTED; the Defendant's Motion for Summary Judgment be DENIED; and the decision of the Commissioner be REVERSED and REMANDED for the calculation of benefits.
Procedural History
Alleging an onset date of January 1, 1996, the Plaintiff filed the applications currently under review for SSI and DIB benefits claiming he was disabled due to degenerative joint disease of the left hip including osteoporosis and bone destruction. (R. at 90, 151, 161). His application was denied initially and on reconsideration. (R. at 61-65, 66-67, 70-72, 167-173). Plaintiff timely requested a hearing by an ALJ which was held on April 18, 2000. (R. at 31-60). In addition to the Plaintiff, the ALJ also heard testimony of a vocational expert (VE), John W. Caknipe, Jr. (R. at 34-60). The ALJ issued an unfavorable decision on April 25, 2000, in which he held that the Plaintiff was not disabled as defined by the Act. (R. at 13-20). The Appeals Council denied Plaintiff's request for review, thereby rendering the ALJ's decision as the final decision of the Commissioner. (R. at 4-6). The Plaintiff thereafter filed a timely appeal to this Court. Upon its initial review, this Court solicited supplemental briefing from the parties on several specific inquiries related to the interpretation of the term "markedly limited" as it affected the application of a controlling Listing in the governing regulations. Order, Aug. 19, 2002. In response, the Plaintiff urged as an alternative to summary relief a remand to clarify the issue(s) addressed by the Court. For the reasons set forth herein, the Court finds a remand is inappropriate in the absence of an existing standard against which the evidence could be weighed and that dispositive relief should therefore be granted.
Question Presented
Is the Commissioner's decision that the Plaintiff is not entitled to benefits supported by substantial evidence on the record and the application of the correct legal standard?
Standard of Review
In reviewing the decision of the Commissioner to deny benefits, the Court is limited to determining whether the Commissioner's decision was supported by substantial evidence on the record and whether the proper legal standard was applied in evaluating the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence is more than a scintilla, less than a preponderance, and is the kind of relevant evidence a reasonable mind could accept as adequate to support its conclusion. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citingRichardson v. Perales, 402 U.S. 389, 401 (1971); and Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)).
In order to find whether substantial evidence exists, the Court is required to examine the record as a whole, but may not "undertake to re-weigh the conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the Secretary." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). In considering the decision of the Commissioner based on the record as a whole, the court must "take into account whatever in the record fairly detracts from its weight." Breeden v. Weinberger, 493 F.2d 1002, 1007 (4th Cir. 1974). The Commissioner's findings as to any fact, if the findings are supported by substantial evidence, are conclusive and must be affirmed. Perales, 402 U.S. at 390. While the standard is high, where the ALJ's determination is not supported by substantial evidence on the record or where the ALJ has made an error of law, the district court must reverse the decision. Coffman, 829 F.2d at 517.
A sequential evaluation is required in order to determine if a claimant is eligible for benefits and the evaluation is based on a review of the claimant's work and medical history. 20 C.F.R. § 416.920; see Mastro, 270 F.3d at 177. The analysis is conducted for the Commissioner by the ALJ and it is that process that a court must examine on appeal to determine whether the correct legal standards were applied and whether the resulting decision of the Commissioner is supported by substantial evidence on the record.
The first step in the sequence is to determine whether the Plaintiff was working at the time of application and, if so, whether the work constituted "substantial gainful activity" (SGA). 20 C.F.R. § 416.920(b); § 404.1520(b). If a claimant's work equals SGA and is more than an unsuccessful work attempt, the analysis ends and the claimant must be found "not disabled" regardless of any medical condition. Id. If the claimant establishes that he did not engage in SGA, the second step of the analysis requires him to prove that he has "a severe impairment or combination of impairments which significantly limit[s] [his] physical or mental ability to do basic work activities." 20 C.F.R. § 416.920(c); § 404.1520(c). In order to qualify as a severe impairment that entitles one to benefits under the Act, it must cause more than a minimal effect on one's ability to function. Id. If the claimant has an impairment that meets or equals an impairment listed in Appendix 1, Part 404, Subpart P, and lasts, or is expected to last, for twelve months or result in death, it constitutes a qualifying impairment. 20 C.F.R. § 416.920(d); 20 C.F.R. § 404.1520(d). If the impairment does not meet or equal a listed impairment, then the evaluation proceeds to the fourth step in which the ALJ is required to determine whether the claimant can return to past relevant work based on an assessment of the claimant's residual functional capacity (RFC) and the "physical and mental demands of work [the claimant] has done in the past." 20 C.F.R. § 416.920(e). If such work can be performed, benefits will not be awarded. Id. However, if the claimant cannot perform his past work, the burden shifts at the fifth step to the Commissioner to show that considering his age, education and work experience, the claimant is capable of performing other work available in significant numbers in the national economy. 20 C.F.R. § 416.920(f); § 404.1520(f); Powers v. Apfel, 207 F.3d 431, 436 (4th Cir. 2000) (citing Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987)). The Administrator can show this through the testimony of a vocational expert (VE). The function of the ALJ in a situation involving a VE is to pose a hypothetical question to the VE that accurately represents the claimant's RFC considering all evidence on the record and fairly sets out all of the claimant's impairments so that the VE can determine if any jobs exist in the national economy that the claimant can perform. Only when the hypothetical posed represents all of the claimant's impairments will the testimony of the VE be "relevant or helpful." Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). If the ALJ finds that the claimant is not capable of SGA, then the claimant is entitled to benefits based on a finding of disability. 20 C.F.R. § 416.920(f)(1).
SGA is work that is both substantial and gainful as defined by the C.F.R. Substantial work activity is "work activity that involves doing significant physical or mental activities. Your work may be substantial even if it is done on a part-time basis or if you do less, get paid less, or have less responsibility than when you worked before." Gainful work activity is work activity done for "pay or profit, whether or not profit is realized." Taking care of oneself, performing household tasks or hobbies, therapy or school attendance, and the like are not generally considered substantial gainful activities. 20 C.F.R. § 404.1572.
Past relevant work experience is defined as SGA in the past fifteen years that lasted long enough for an individual to learn the basic job functions involved. 20 C.F.R. § 416.965(a); 20 C.F.R. § 404.1565(a).
RFC is defined as "an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. A `regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." SSR-96-8p. When assessing RFC
the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record.
Id. (footnote omitted.)
The Administration may satisfy its burden by showing that considering the claimant's RFC, age, education and work experience, the claimant is either disabled or not disabled based on medical-vocational guidelines, or "grids," published at 20 C.F.R. Pt. 404, Subpt. P, App. 2. However, technical application of the grids is not always appropriate, and thus the Commissioner must rely on the testimony of a vocational expert to determine whether and individual claimant is in fact capable of performing SGA available in significant numbers. 20 C.F.R. § 416.920(f); § 404.1520(f); Heckler v. Campbell, 461 U.S. at 466; SSR 83-10.
Analysis
The Plaintiff assigns several errors to the Commissioner's final decision that the Plaintiff was not disabled:
(1) There is not substantial evidence in the record to support the Commissioner's conclusion that the Plaintiff's impairment did not meet or equal the relevant Listing; and
(2) The Appeals Council failed to consider that the Plaintiff was within a year of becoming fifty years old when he would have to be viewed as "closely approaching advanced age" and thereby disabled pursuant to the relevant grid given his "severe" impairment.
The first step in the sequential analysis was resolved in Plaintiff's favor by the ALJ's determination that the Plaintiff had not engaged in SGA since the onset date of January 1, 1996. (R. at 14). The second step was also resolved in Plaintiff's favor by the ALJ's determination that "[t]he claimant suffers from degenerative joint disease of the left hip which has more than a minimal effect on his ability to function, and, as such, this condition is `severe.'" (R. at 16) While the ALJ found that the Plaintiff suffered from a "severe" impairment, he also concluded at step three of the analysis that it was not so severe as to meet or equal any of the impairments listed in the applicable regulations so as to render him disabled. Id.
Having resolved step three adversely to the Plaintiff, the ALJ proceeded, as required, to the next step in which he concluded in Plaintiff's favor that he was unable to return to his past relevant work as an auto mechanic. (R. at 17, 19). However, at the final step, the ALJ found, based on the testimony of the VE, that there were a sufficient number of employment opportunities in the national economy that the Plaintiff could perform given his RFC, age, education, and work experience. (R. at 17). The Plaintiff does not directly contest the ALJ's findings at either step four or five and therefore the central issue for the Court concerns the ALJ's resolution at step three of the sequential analysis.
The relevant Listing that the Plaintiff asserts he satisfied to qualify as being disabled under the Act is 1.03(A):
1.03 Arthritis of a major weight-bearing joint (due to any cause):
With history of persistent joint pain and stiffness with signs of marked limitation of motion or abnormal motion of the affected joint on current physical examination. With:
A. Gross anatomical deformity of hip or knee (e.g. subluxation, contracture, bony or fibrous ankylosis, instability) supported by X-ray evidence of either significant joint space narrowing or significant bony destruction and markedly limiting ability to walk and stand.20 C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ held that although the available medical evidence "revealed severe degenerative disease with joint space narrowing and some areas of bone destruction, these findings were not accompanied by evidence of a marked limitation of joint motion or abnormal motion or by a markedly limited ability to walk and stand so as to meet" the definition of the Listing. (R. at 16). The Plaintiff challenges the ALJ's determination that there was insufficient evidence of marked limitation as is required to meet the Listing for several reasons. First, the Plaintiff submits that the ALJ's analysis is flawed because he did not identify what would constitute "marked limitation" that the Plaintiff failed to meet by explaining what nature or degree of impairment beyond that suffered by the Plaintiff would be sufficient. (Pl.'s Mot. Summ. J. or Alt. Mot. for Remand (Pl.'s Mem.) at 4-5). Second, the Plaintiff challenges the decision because the ALJ seemingly rejected a part of the opinion of the non-examining physician and substituted his own medical judgment by reducing the number of hours per day that the Plaintiff could sit, stand, and walk during any employment, thereby effectively negating any medical foundation for the decision that Plaintiff's impairment did not meet the Listing. Id. at 5. The Plaintiff also asserts that the ALJ failed to consider the Plaintiff's deficient hearing and obesity as those additional impairments, when considered in combination with the severe degenerative joint disease, should have resulted in a determination of equivalency sufficient to meet the requirements of the Listing. Id. at 4-6. See 20 C.F.R. § 416.926, 404.1526.
The term "markedly limiting" is not defined in the Act or implementing regulations in force and effect at the relevant time as it relates to Listing 1.03. The regulations require that joint motion be measured by established techniques set forth in the current edition of "Guides to the Evaluation of Permanent Impairment" (Guides) published by the American Medical Association, but nowhere in the Guides is there a definition of what constitutes "marked limitation" with respect to joint motion. GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT (Linda Cocchiarella Gunnar B. J. Anderson eds., 5th ed. 2001); 20 C.F.R. Subpt. P, App. 1, 1.00E. Arguably, it is a concept that is susceptible of common sense interpretation and application when based on sufficient evidence. Here, although the Consultative Examiner (CE) made findings that six motion tests related to the Plaintiff's left hip impairment resulted in abnormal results, his overall conclusion was that the Plaintiff could "ambulate with a moderately limping gait over the left hip" without any assistive device. (R. at 149, 153). Such a conclusion is not necessarily precluded by the motion test results and is consistent with the Plaintiff's own statements to the CE that he could walk fairly well and climb steps most of the time without difficulty although he experienced pain at times that prevented these activities. (R. at 147). Such statements are also consistent with the Plaintiff's testimony before the ALJ that he could perform a variety of household and yard chores, that he was able to drive as well as shop, and that he could work part-time as an auto mechanic in performing tasks that required standing for short periods of time and the lifting of weights up to thirty pounds. (R. at 35-36, 38-44, 46-47, 50-51). The Plaintiff also testified that he may be able to work one day, but as a consequence "might not be able to get to the bathroom the next." (R. at 36). However, the fact remains that there is no existing standard established by the Commissioner explaining what constitutes "markedly limiting ability to walk and stand"; nor is there even an accepted medical or legal definition of the concept. Counsel have discovered no case precedent on the point, perhaps because (as pointed out by Plaintiff's counsel), the courts are appropriately reluctant to define and apply essential administrative criteria in the absence of administrative pronouncement. See Preston v. Heckler, 769 F.2d 988, 990 (4th Cir. 1985); but see Byrd v. Apfel, 2000 WL 726212, at *6 (S.D. Ala. April 28, 2000) (holding that a plaintiff who could walk and stand a majority of the work day was not markedly limited by his condition). The dilemma is compounded by the fact that the determination of what constitutes "marked limitation" in walking and standing must be based, at least in part, on a medical determination. However, the Plaintiff was repeatedly rebuffed in his efforts to obtain and introduce such evidence. (R. at 60, 174); SSR 83-20. Accordingly, even though a claimant bears the burden of proving that an impairment meets or equals a listing, it offends a basic sense of due process to require that the claimant meet some unstated standard and then to foreclose his ability to do so. Therefore, this Court is unwilling to recommend that any administrative standard or criteria be created by judicial fiat.
New final listings effective February 19, 2002, attempt to address the problem identified in this case by eliminating the terms "marked limitation" and "markedly limiting" altogether. The new regulations replace the undefined terms with the requirement that the Plaintiff show the "inability to ambulate effectively." Listing § 1.00B. Whether the definition of effective ambulation is sufficient remains to be tested. However, the Court is obligated to proceed under regulations in place at the time the claim was decided and, therefore, the new listings are inapplicable to this claim. See generally, Richard C. Ruskell, SOCIAL SECURITY DISABILITY CLAIMS PRACTICE AND PROCEDURE 190-191 (2002).
The current edition of the Guides describes the standards for evaluating arthritis-related impairments using the range of motion method of measurement. (533-544). In addition, the Guides also establish the standard for assessing impairment from a diagnosis-based estimate of impairment that takes into consideration all of the ancillary effects of a disease or treatment. (545, 549). The Guides specifically require that the impact of even successful treatment such as hip replacement be evaluated for impairment. For instance, an individual who has had successful hip replacement may nonetheless need to take prophylactic measures in activities of daily living in order to reduce the risk of reinjury or other setback. (545). For degenerative joint disease due to fractures, the Guides provide that the rating should be based either on the ROM or the diagnosis-based evaluation coupled with the Guides arthritis rating, whichever yields the greater impairment estimate. (549).
Such statements, as well as those by the Plaintiff suggesting that he managed his condition with only the help of over-the-counter medication, could support the conclusion that the Plaintiff did not suffer from persistent pain as required by the Listing if there was evidence that the over-the-counter treatment controlled his pain or that it was the only regimen prescribed by a physician. There is no such evidence in the record.
The fact that the ALJ gave the Plaintiff the benefit of any doubt and accepted the Plaintiff's own estimation of his ability to stand or walk on a continuous basis in a normal workday, as opposed to the opinion of the non-examining physician, does not mean that the ALJ's opinion is fatally inconsistent or otherwise based on insufficient medical evidence. (R. at 46-47, 156). It means, at most, that the ALJ's ultimate conclusion at step five of the analysis that is based on the VE's testimony must, as it does, fairly account for such a restriction.
Even so as concerns this case (and as argued by the Plaintiff), there is a basis to conclude that the Plaintiff's disease markedly limited his ability to walk and stand so as to further justify relief at this stage without remand given the ALJ's finding, based on medical evidence, that the Plaintiff could only stand for a maximum of two to three hours a day and must be permitted to alternate his position at will to perform even a restricted range of sedentary work. (R. at 18, 20); SSR 83-12. Although the finding was made in the final step of the sequential analysis and not directly in reference to whether the Plaintiff's impairments met or equaled a listing at the third step, such a finding is supported by substantial evidence, including evidence of persistent pain.
Listing 1.03(A) requires the Plaintiff to carry the burden of proving several elements. Sullivan v. Zebley, 493 U.S. 521 (1990) (every element must be satisfied in order to meet a listing.) First, there must be a "history of persistent joint pain and stiffness." Although the Commissioner argues on appeal that there is no evidence of persistent joint pain and stiffness, the ALJ made no finding on this element. (R. at 16, Def.'s Mem. at 10). However, given the objective medical evidence of severe degenerative disease and the Plaintiff's unrebutted testimony regarding the genesis of his hip problem, it can hardly be disputed but that Plaintiff's disease corroborates his allegations of joint pain. Furthermore, despite the lack of medical evidence dating back to the hip injury, the ALJ did not discount the Plaintiff's credibility or testimony about the persistence of his joint pain.
Plaintiff must also show that his pain and stiffness is accompanied by "signs of marked limitation of motion or abnormal motion of the affected joint on current physical exam." Although the Commissioner argues on appeal that the state agency medical examiner, Dr. Al-Abdulla, "failed to indicate anything even approaching a `marked' limitation or `abnormal motion.' of the left hip," the ALJ finding on this element is clearly in error. (Def.'s Mem. at 10; R. at 16). Based on the evidence, this element is met by the clinical testing establishing abnormality of Plaintiff's ROM, gait, station and coordination, as well as his reflexes. (R. at 152-153). Moreover, the state agency's medical reviewer, W.C. Amos, M.D., confirmed Dr. Al-Abdulla's findings and rendered a substantially similar opinion that the Plaintiff's documented impairment and abnormal ROM could likely produce the Plaintiff's allegations of pain. (R. at 161). Although the Listing provides that marked limitation would fulfill the element, the Listing equally provides that nothing more than abnormal ROM is required.
Plaintiff also bears the burden of proving by X-ray evidence that he suffers a gross anatomical deformity, but that requirement is also met in this case by the documented X-ray and clinical evidence of severe degeneration, significant joint space narrowing, and bone destruction. (R. at 150, 152-153). It is undisputed that an x-ray of Plaintiff's hip demonstrated severe degenerative joint disease, osteoporosis, bone destruction, and severe narrowing of the joint space. (R. at 150). Based on the results of the medical evaluation by the state agency's consultative examiner, Dr. Al-Abdulla, it was the opinion of the reviewing physician, Dr. Amos, that "claimants' allegation of pain appears credible at this time due to the x-ray evidence of severe degenerative disease." (R. at 161). Dr. Al-Abdulla also rated Plaintiff's left coordination, gait and station to be abnormal in five of six different areas. (R. at 152). Plaintiff's lower extremity reflexes were all graded as depressed. Id. Dr. Al-Abdulla clinically documented limitations in Plaintiff's ROM of the left hip. (R. at 153). In reviewing Dr. Al-Abdulla's assessment, Dr. Amos noted that "there is tenderness and significant restriction in active/passive ROM of the (L) hip." (R. at 161). Nevertheless, in the very next paragraph, Dr. Amos wrote, "[a]lthough the claimants' ROM in the (L) hip is moderately restricted; the claimant still has the ability to perform his usual daily activities of living such as cooking, cleaning and yard work." (R. at 161) The reviewer's comments also include a handwritten sentence that "[c]laimant told CE MD that he can walk o.k. most of the time." (R. at 161). Such opinions are clearly contrary to the underlying medical evidence.
Dr. Al-Abdullah failed to grade the degree of dysfunction as mild, moderate or severe in conformity with the instructions on the neurological evaluation supplement. (R. at 152)
The CE found decreased active or passive motion restrictions in the Plaintiff's left heel-knee coordination as well as his left toe, heel, arm-swing, tandem gait, left one-foot station, and left hip range movements. (R. at 152).
Finally, in order to meet the Listing, Plaintiff must demonstrate that the disease causes a "markedly limiting ability to walk and stand." This is where the ALJ found that Plaintiff failed to carry his burden of proof and thus did not meet the Listing. Plaintiff argues that the ALJ's finding that he was unable "to stand more than 2-3 hours in a day [with] the need to change positions at will constitutes `markedly limiting ability to walk and stand' in the parlance of Listing 1.03(A)." (Pl.'s Mem. at 5). However, as previously noted, there is no Fourth Circuit case law cited by either the Plaintiff or the Defendant that discusses the meaning of "markedly limiting" under Listing 1.03(A). Although the Plaintiff established all of the other elements of the Listing, Plaintiff's testimony, in fact, was that his ability to walk and stand without having to sit was that he could only walk for two-and-a-half blocks and that he could only stand for "anywhere between a half hour and a hour and a half." (R. at 46). He also testified that he could "mostly stand in front of [his] work bench . . . walk about 100 feet to my, my mom's garage." (R. at 46). Plaintiff also testified that he could only climb nine to twelve steps with a rail. (R. at 47). The state agency consultative examiner offered no opinion about Plaintiff's ability to stand and walk. (R. at 147-154). Dr. Amos, who never examined the Plaintiff, estimated that his ability to stand and/or walk was about six hours in an eight-hour day and that Plaintiff self-reported that he could "walk o.k. most of the time." (R. at 161). Such an opinion is, again, contrary to the underlying evidence.
At step three, the ALJ summarily concluded that the laboratory findings were not accompanied by evidence that the Plaintiff was markedly limited in his ability to walk and stand. The ALJ actually discussed the Plaintiff's ability to walk and stand in assessing the Plaintiff's RFC at step four, not whether his impairment or combination of impairments met or equaled the Listing at step three.
In his discussion of the Plaintiff's RFC, the ALJ also overstated the Plaintiff's testimony regarding his ability to engage in activities of daily living such as Plaintiff's testimony specific to his ability to walk and stand. For instance, Plaintiff testified that he was only able to stand in front of a bench to work on differentials "just usually an hour, hour and a half" at a time, approximately five or six days a month. (R. at 39, 46). It was also noted that he was also able to walk approximately 100 feet to visit his neighbor, but there is no indication how often he did that. (R. at 41). Plaintiff was also reported to be able to go to a laundromat weekly to do his laundry, although there is no testimony or finding regarding how much standing and walking this task required. (R. at 42). Plaintiff also testified that he used a leaf blower to clear leaves, but there is no information about how much standing and walking was required or its frequency. (R. at 43). The ALJ found it decisive that Plaintiff ambulated without any assistive device and that the only drug he used to treat his pain was Exedrin, but such are hardly determinative factors. (R. at 16). The ALJ held as well that the objective medical evidence showed "a mild restriction of left hip motion" which, however, is contradicted by Dr. Al-Abdulla's objective findings, coupled with Dr. Amos' comments regarding those findings, as previously discussed. (R. at 17; 152-153; 161). With the exception of left hip adduction, all the hip ROM readings were abnormal. (R. at 153). Dr. Al-Abdulla made no comment on the severity of the restriction. Nevertheless, Dr. Amos characterized the exam results as showing "significant restriction in active/passive ROM of the (L) hip . . . claimants' ROM in the (L) hip is moderately restricted." (R. at 161). Therefore, there is no opinion or objective evidence to support the conclusion that the Plaintiff's restriction is mild as characterized by the ALJ. (R. at 17).
The question, then, is whether the ALJ's finding that Plaintiff is able to stand and walk for two to three hours a day in the RFC assessment consistent with disease that is markedly limiting in one's ability to walk and stand. Confronted with a similar dilemma, the district court inByrd v. Apfel observed that, absent relevant Eleventh Circuit case law discussing the meaning of "markedly limiting," a Plaintiff failed to demonstrate that his ability to walk and stand was markedly limited when he could "be on his feet for up to seven hours, the majority of the work day." 2000 WL 726212, at *6 (S.D. Ala. April 28, 2000). In this case, the ALJ found that the Plaintiff can be on his feet for no more than two to three hours a day which is drastically different from a majority of the work day and, therefore, the Byrd v. Apfel precedent is inapposite.
The Defendant argues that no further clarification is required as to what qualifies as markedly limiting ability to walk and stand because the listings define the required level of impairment that precludes any gainful activity and the ALJ, based on substantial evidence, found that the Plaintiff could engage in at least some type of sedentary employment involving no more than two hours of standing and walking each eight hour workday. (Def.'s Resp. to Court's Queries at 1-2 (citing regs))(Def.'s Resp.). However, the ALJ, in fact, found that the Plaintiff could stand only two to three hours a day and must be allowed to alternate his position at will. This finding was made in determining Plaintiff's RFC at step four in the sequential analysis. (R. at 17, 19, 23). Accordingly, the Defendant's argument is unavailing because if the ALJ's findings were that Plaintiff could only stand two to three hours in a day with the requirement that he could alternate positions at will, those facts should have been applied at step three and the Plaintiff should have been found to be disabled. If a Plaintiff meets a listing at step three, he has carried his burden and the analysis ends. However, there is no standard by which a plaintiff suffering from arthritis of the hip with severe degenerative changes and joint space narrowing and who is limited to standing a maximum of two to three hours a day with or without the opportunity to alternate positions can prove he is "markedly limited" in his ability to walk and stand. When the Commissioner's regulations are arbitrary, capricious or manifestly contrary to the authorizing statute, they are entitled to no deference. Chevron U.S.A., Inc. v. Nat'l Res. Defense Council. Inc., 467 U.S. 837, 843 n. 9, 844 (1984) (citations omitted). Since neither the Commissioner nor the medical community have provided a measurement for marked limitation, this element of Listing 1.03(A) is arbitrary because it cannot be fairly applied.
The regulations provide that if an individual meets or equals a listed impairment, he is presumptively disabled without any consideration of vocational factors. 20 C.F.R. § 1520(d). The sequential evaluation is a necessary instrument for determining eligibility for benefits and if the Plaintiff proves he is disabled at any point in the evaluation, benefits must be awarded. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). Plaintiff demonstrated that his impairment met all the elements of Listing 1.03(A) with the exception of whether it markedly limited his ability to walk and stand. The Commissioner would have the Court ignore both the sequential analysis as well as the infirmity in the Listing and jump ahead to step five where the burden shifts to the Commissioner to show that the Plaintiff is able to engage in SGA. Because the element regarding marked limitation cannot be applied fairly where the Commissioner has not established and standard by which it can be measured, the Court finds that the element is invalid.
The Plaintiff's additional arguments that the ALJ failed to consider the issue of equivalency based on the additional complaints of impaired hearing and obesity are insufficient, however, in supporting his alternate position that he sustained his burden of proof at step three of the analysis. As to the Plaintiff's alleged hearing deficiency, the only evidence is his self-serving testimony at the administrative hearing and during an agency intake interview that clearly lacks any medical substantiation. (R. at 45, 105). Moreover, even though the Social Security Ruling (SSR) regarding obesity was effective at least before the Appeals Council completed its review and issued its adverse decision in Plaintiff's case, there is simply no evidence in the record (other than information regarding Plaintiff's weight and efforts at reducing it) that could reasonably support any conclusion of impairment. The Plaintiff, of course, has the burden of producing sufficient evidence to support a finding that he suffers from a qualifying impairment. Evans v. Sec'y Health Human Servs., 820 F.2d 161, 164 (6th Cir. 1987). The Plaintiff failed to sustain that burden as to the alleged additional impairments regarding his hearing and obesity and, therefore, the ALJ's conclusion concerning the issue is sufficiently supported by the record.
If anything, the Plaintiff's own statement that he did not experience relief after reducing his weight from approximately 300 pounds to 220 pounds suggests an opposite conclusion to what he is urging. (R. at 147).
Finally, the Plaintiff argues in support of his contention that he suffered from an impairment or combination of impairments that met or equaled a listing that his situation should have been evaluated in the context of his age category (50) that he reached during the administrative appellate process. (Pl.'s Mem. at 7). If such an evaluation had been conducted, the Plaintiff would have been in a higher age category (50-54 years old) that the Defendant concedes would have mandated relief. (Def.'s Br. in Supp. Mot. Summ. at 12). The Plaintiff urges that the placement of the Plaintiff in the lower category was done in a mechanical, if not arbitrary fashion. (Pl.'s Mem. at 7). Although it is correct, as the Plaintiff argues, that applicable regulations require "that age not be applied mechanistically in a borderline case," the relevant time frame is when the matter was before the ALJ, not later in the process. Id.; see Wilkins v. Sec'y Health Human Servs., 953 F.2d 93, 95 (4th Cir. 1991); Varley v. Sec'y Health Human Servs., 820 F.2d 777, 780 (6th Cir. 1987). The Plaintiff had just turned forty-nine when the hearing was held before the ALJ. (R. at 34). It was not a matter of but a few days or other minimal period for the Plaintiff to have reached the age for the higher category as in Kane v. Heckler, 776 F.2d 1130 (3rd Cir. 1985), in which the court held that strict application of the deadlines in such a "borderline situation" was inappropriate. In addition, the fact that the categories are of relatively brief duration themselves (45 to 49 and 50-54), a "gap" of approximately one quarter of the time frame does not present a "borderline" situation. See Russell v. Bowen, 865 F.2d 81, 84 (9th Cir. 1988) (holding that the categories were not unreasonable and that a shortfall by the claimant of seven months in age did not constitute a borderline situation meriting relief).
Conclusion
In promulgating Listing 1.03(A), the Commissioner failed to properly execute her rulemaking authority and established an element that is impossible to meet because it has no acceptable legal, medical, or Social Security — specific definition. It thus "exceeds the bounds of the permissible." Barnhart v. Walton, ____ U.S. ____, 122 S.Ct. 1265, 1269 (2002) (citing Chevron, 467 U.S. at 843 and United States v. Mead Corp., 533 U.S. 218, 227 (2001)). The question, then, is whether a court may ignore the improper element as being inconsistent with the provisions of the Act in order to afford the Plaintiff a fair opportunity to prove disability at step three. Although the Listing is not the exclusive means by which the Plaintiff can prove disability, but for the promulgation of the improper element, he would have succeeded at step three. See Martin v. Sec'y Health Human Servs., 492 F.2d 905, 910 (4th Cir. 1974) (holding that the regulations requiring end stage organ failure for individuals with diabetes were contrary to the statute because a person afflicted with diabetes could be disabled under the statute without suffering from organ failure). Therefore, where the Commissioner has exceeded her authority by promulgating an impossible standard in Listing 1.03(A), the infirm element should be disregarded and a finding of disability be made. Id. at 910 (awarding benefits where the Plaintiff showed she was disabled but for the improper regulation).
Having found that no standard existed at the relevant time by which an ALJ could evaluate the determinative issue of whether the Plaintiff's impairment of degenerative joint disease caused a marked limitation in his ability to walk and stand so as to render him disabled within the applicable regulations, there is no purpose to be served by remanding the case. Accordingly, the ALJ's conclusion as to the issue of marked limitation is either not supported by substantial evidence or is the result of the application of an incorrect, i.e., non-existent, legal standard.
It is therefore recommended that the Plaintiff's Motion for Summary Judgment be GRANTED; the Defendant's Motion for Summary Judgment be DENIED; and that the case be remanded for the calculation and payment of benefits.
Let the Clerk forward a copy of this Report and Recommendation to the Honorable Richard L. Williams and to all counsel of record.
It is so Ordered.