Opinion
Civ. No. 99-1212, SECTION "LLM" (5).
February 14, 2000.
ORDER AND REASONS
Plaintiff Myrtis Hendricks seeks judicial review pursuant to Section 405(g) of the Social Security Act (the "Act") of the final decision of the Commissioner of Social Security Administration (the "SSA"), which denied her claim for supplemental security income benefits ("SSI") under Title XVI, §§ 1602 and 1614(a)(3)(A) of the Act, 42 U.S.C. § 1381(a), and Widow's Insurance disability benefits (WDB) under Title II, § 202(e) of the Act, 42 U.S.C. § 401 et seq. Plaintiff and defendant filed timely cross-motions for summary judgment. Record Doc. Nos. 8, 11.
1. PROCEDURAL HISTORY
Hendricks applied for SSI on June 6, 1996, alleging disability since November 10, 1997, because of problems with her right knee, and for WDB on February 5, 1998. (Tr. 32-40, 104-109). The Commissioner denied her application initially and on reconsideration. (Tri. 20-23, 26-27). Plaintiff requested a hearing before an administrative law judge ("ALJ"), which was held on April 21, 1998. (Tr. 110-123). The ALJ denied Hendricks' application on May 11, 1998. (Tri. 8-15). After the Appeals Council denied review on June 9, 1998 (Tr. 3-4), the ALJ's decision became the final decision of the Commissioner for purposes of this Court's review.
The onset date of disability was amended at the hearing by plaintiff's attorney from June 5, 1996, to November 10, 1997.
The ALJ asserted that claimant filed both applications based on "problems with her right knee and obesity," (Tr. 11), but there is no reference in either application to "obesity." However, in her opening statement at the hearing, plaintiff's attorney asserted that plaintiff met the Section 909A listing of impairments because of her height (64") and weight (280 lbs.) and x-ray evidence of arthritis in a major weight bearing joint. (Tr. 113).
2. STATEMENT OF ISSUES ON APPEAL
Plaintiff's request for judicial review raises the following issues:
1. Whether the ALJ failed to consider whether the plaintiff's medical condition met or equaled Section 9.09(a) of the Listing of Impairments and therefore, failed to follow the proper steps in the sequential evaluation process [ 20 C.F.R. § 404.1520(d)], and whether this is a reversible error of law.
2. Whether the ALJ failed to secure an updated medical opinion regarding a finding of equivalence as required by SSR 96-6p, and whether this is a reversible issue of law.3. ALJ'S FINDINGS RELEVANT TO ISSUES ON APPEAL
The Commissioner made the following findings relevant to the issues on appeal:
A. Claimant is the widow of wage earner, Larry Hendricks, who died fully insured in 1991. The prescribed period within which claimant must prove disability expires in December, 1998.
B. Claimant suffers with obesity and osteoarthritis of both knees which are more than "non-severe." Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985).
C. Claimant's combination of impairments do not meet or equal the criteria of any impairment in the Listing of Impairments of Appendix 1, Subpart P, Regulations No. 4.
D. Claimant's assertions as to pain, limitations and the complete inability to do work are not substantiated by record evidence and are not credible.
E. Claimant has the residual functional capacity for light work or sedentary work.
F. Claimant's impairment(s) and residual functional capacity do not preclude her from doing her past relevant work as a janitor and washerteria worker.
G. Claimant has not been under a "disability" as defined in the Act at any relevant time through the date of this decision.4. ANALYSIS A. Standards of Review
The function of this Court on judicial review is limited to determining whether there is substantial evidence in the record to support the final decision of the Commissioner as trier of fact and whether the Commissioner applied the appropriate legal standards in evaluating the evidence. Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). Substantial evidence is more than a scintilla but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.Richardson v. Perales, 402 U.S. 389, 401 (1971); Spellman, 1 F.3d at 360. This Court may not reweigh the evidence, try the issues de novo or substitute its judgment for the Commissioner's. Id.;Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
The Commissioner is entitled to make any finding that is supported by substantial evidence, regardless whether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91 (1992). Despite this Court's limited function, it must scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence exists to support it. Villa, 895 F.2d at 1022; Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). Any findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).
To be considered disabled and eligible for DIB, plaintiff must show that she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to 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 promulgated regulations that provide procedures for evaluating a claim and determining disability. 20 C.F.R. § 404.1501 to 404.1599 Appendices, §§ 416.901 to 416.998 (1995). The regulations include a five-step evaluation process for determining whether an impairment prevents a person from engaging in any substantial gainful activity. Id. §§ 404.1520, 416.920; Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); Moore v. Sullivan, 895 F.2d 1065, 1068 (5th Cir. 1990). The five-step inquiry terminates if the Commissioner finds at any step that the claimant is or is not disabled. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The five-step analysis requires consideration of the following:
First, if the claimant is currently engaged in substantial gainful employment, he or she is found not disabled. 20 C.F.R. § 404.1520(b), 416.920(b).
Second, if it is determined that, although the claimant is not engaged in substantial employment, he or she has no severe mental or physical impairment which would limit the ability to perform basic work-related functions, the claimant is found not disabled. Id. §§ 404.1520(c), 416.920(c).
Third, if an individual's impairment has lasted or can be expected to last for a continuous period of twelve months and is either included in a list of serious impairments in the regulations or is medically equivalent to a listed impairment, he or she is considered disabled without consideration of vocational evidence. Id. §§ 404.1520(d), 416.920(d).
Fourth, if a determination of disabled or not disabled cannot be made by these steps and the claimant has a severe impairment, the claimant's residual functional capacity and its effect on the claimant's past relevant work are evaluated. If the impairment does not prohibit the claimant from returning to his or her former employment, the claimant is not disabled. Id. §§ 404.1520(e), 416.920(e).
Fifth, if it is determined that the claimant cannot return to his or her former employment, then the claimant's age, education and work experience are considered to see whether he or she can meet the physical and mental demands of a significant number of jobs in the national economy. If the claimant cannot meet the demands, he or she will be found disabled. Id. §§ 404.1520(f)(1), 416.920(f)(1). To assist the Commissioner at this stage, the regulations provide certain tables that reflect major functional and vocational patterns. When the findings made with respect to claimant's vocational factors and residual functional capacity coincide, the rules direct a determination of disabled or not disabled. Id. § 404, Subpt. P. App. 2, §§ 200.00-204.00, 416.969 (1994) ("Medical-Vocational Guidelines").
The claimant has the burden of proof under the first four parts of the inquiry. Id. If she successfully carries this burden, the burden shifts to the Commissioner to show that other substantial gainful employment is available in the national economy, which the claimant is capable of performing. Greenspan, 38 F.3d at 236;Kraemer v. Sullivan, 885 F.2d 206, 208 (5th Cir. 1989). When the Commissioner shows that the claimant is capable of engaging in alternative employment, "the ultimate burden of persuasion shifts back to the claimant." Id.; accord Selders, 914 F.2d at 618.
The Court "weigh[s] four elements of proof when determining whether there is substantial evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) [her] age, education, and work history." Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995). "The Commissioner, rather than the courts, must resolve conflicts in the evidence." Id.
B. Factual Background
Plaintiff Myrtis Ruth Hendricks made 50 years old on December 3, 1997, approximately four months before the hearing in this case. She was married to Larry Hendricks, who died in December, 1991, and has not remarried. She last worked in 1995. She did janitor type work, cleaning banks and race tracks, and was working full time at that job for about a year. She maintained she had to stop working because of the pain in her knees. She said she was "dragging too slow and I couldn't keep up." (Tr. 116). She is 5'4" tall (she stated she thought she was 5'6" or 5'7", but her attorney noted that the consultative physician to whom she had been referred on October 8, 1996 found her height to be 64") and weighs about 278 pounds. (Tr. 116). She has an eight grade education, and can read and write, but is "not too good on arithmetic [i]f I could take my time and do it." (Tr. 117). In 1978, she worked at Howard Johnson's from 8:00 a.m. to 4:00 p.m., then worked part time for Tasty Donuts "to about seven in the morning" as a cashier, but that was over 20 years earlier. (Tr. 117). She also worked at a washerteria in 1982 and 1983, where she ran washing machines, and folded and pressed clothes. She also closed up, opened up, including on Sunday mornings, and cleaned the floors. Id.
When asked by the ALJ why she could not work now, she responded, "I can't stand very long and I'm sort of off balance and for a little while I could stand up and after that I have to get somewhere and sit down. And without walking with this stick for a little while, I'll fall. Sort of clumsy." (Tr.n118). The ALJ then asked how long she had been using a stick. She replied, "I got this cane, this thing here in `94. I have a, they gave me this crutch and a walking stick. But I can't use the walking stick because I'm off balance and I'll fall. So I'm more balanced with the crutch so that's why I keep the crutch." Id. (Emphasis added).
The vocational expert (VE) testified, given the ALJ's hypotheticals, that claimant's past jobs would be classified as light and that she should still be able to do the work she did in the past. (Tr. 121). Plaintiff's attorney asked the VE that if claimant, because of the arthritis in her knees, was limited to a sedentary occupation, would she have any skills from her past job that would be transferable to those jobs. The VE responded that plaintiff has no transferrable skills. (Tr. 121).
C. Medical Evidence
This Court has reviewed the entire record, including all medical records in evidence, the hearing testimony and the ALJ's Decision of May 11, 1198. The medical evidence reveals an undated prescription by Dr. Robert C. Brown for "Naprosyn, 375 or 500 mg, two or three times a day for knee pain." (Tr. 76) (Since there were copies of two other prescriptions by Dr. Brown on the same page in the record dated May 24, 1994, the Court presumes the prescription for Naprosyn was written on that date). (Tr. 76).
The next medical evidence of record is an October 9, 1996 report by Dr. Gary F. Caroll, an internist to whom plaintiff was referred by SSA. He examined plaintiff on September 30, 1996. (Tr. 77). His diagnosis of plaintiff was:
1. Morbid obesity [64 inches tall and weighing 280 lbs].
2. Right carpal tunnel syndrome [of right wrist].
3. History of internal derangement of the right knee, post-op surgical intervention in 1982. The patient has findings compatible with degenerative joint disease involving both knees.
4. Post-op status: Left carpal tunnel release procedure in the 1980's.
5. History of chest pain not compatible with angina pectoris.
SUMMARY
Ms. Hendricks is a 48-year-old-lady with a lifelong history of obesity. She sustained an injury to the right knee in 1982 requiring surgical intervention to remove damaged cartilage. She reports a history of left carpal tunnel syndrome for which she underwent carpal tunnel release procedure in the mid 1980's. Since 1991, she has experienced pain and stiffness involving her right knee and pain related to her right wrist with numbness of her thumb, index, and middle fingers. She is not presently under medical follow-up and uses over-the-counter Ibuprofen.
The patient is markedly obese standing 64 inches tall without shoes and weighing 280 pounds in street clothing. Her blood pressure is within normal limits. Her heart size is normal. Funduscopic examination was unremarkable. Pertinent physical findings are related to the knees where there are bilateral hypertrophic changes. There is a well-healed, non-tender surgical scar involving the lateral aspect of the right knee, probably associated with a lateral meniscectomy. The patient has full range of motion of both knees but pain and spasm are elicited on full flexion and full extension of the right knee . (Emphasis added). Physical examination demonstrates no deformities or functional limitations involving the wrists.
There is diminished appreciation of pinprick and light touch involving the thumb, index, and middle fingers of the right hand with diminished grip strength. Tinel's sign was positive on the right. (Emphasis added). The patient has no impairment of station or gait.
The patient has no functional limitations related to the cardiovascular or respiratory systems. She has no impairment of the range of motion of the knees, wrists or fingers but has findings typical of a right carpal tunnel syndrome. She has diminished grip strength of the right hand as described above . (Emphasis added). She has no psychiatric disabilities.
"Hypertrophic changes" means excessive development of an organ or part; specifically, increase in bulk (as by thickening of muscle fibers) without multiplication of parts. Merriam Webster Dictionary, 1999 edition.
Thank you for referring this patient to me.
(Tr. 81-82).
After discussing Dr. Carroll's report, the ALJ noted that "claimant was assessed as having no impairment of range of motion of the knees." (Tr. 12). He made no mention of Dr. Carroll's finding that the patient had pain and spasm at extreme abduction and extension on the right. (Pain is subjective; a finding of spasm is not.)
On October 2, 1996, an x-ray was conducted by Dr. Albert Hendler, associated with Dr. Carroll, which revealed that plaintiff suffered from degenerative arthritic change affecting both the left and right knee, manifested by narrowing of the joint space medially and hypertrophic reaction. He stated there was no evidence of fracture, dislocation or other disease, and that his impression was that plaintiff suffered from osteoarthritis. (Tr. 85).
Plaintiff was next treated at Pendleton Memorial Methodist Hospital in November of 1996 in the Emergency Room for pain in her right shoulder. She was diagnosed with shoulder pain secondary to bursitis. "The patient was given Toradol 60 mg with significant relief of pain. She will be advised to apply ice to the shoulder. She will be given a sling for the next several days and kept on Naprosyn for an anti-inflammatory. She should follow-up with her regular physician." (Tr. 87).
Plaintiff was seen on November 10, 1997, at the Medical Center of New Orleans (Charity Hospital) with right knee pain. At that time it was noted that she "uses [right] crutch or walker . . . unable to use cane . . . hinged brace helps." (Tr. 100). As noted by the ALJ, at that time plaintiff had 0-100 degrees range of motion in the right leg. (Tr. 12, 100). The ALJ stated that range of motion is largely subjective. (Tr. 13). However, in evaluating the intensity and persistence of symptoms, limitations on range of motion has been found to be an objective factor that can corroborate the existence of disabling pain, along with x-ray evidence and other objective indicators. See Hollis v. Bowen, 837 F.2d 1378 (5th Cir. 1988).
On December 1, 1997, plaintiff was again examined at the Medical Center of New Orleans. Her right knee pain was found to be compatible with osteoarthritis of the right knee. In addition to a number of other x-ray findings, it was noted that she suffered from a small suprapatellar joint effusion of the right knee. (Tr. 98). She was given an injection in the knee for relief of pain. (Tr. 99).
The ALJ found it significant that plaintiff sought no on-going treatment for her condition after her 1982 surgery for a torn cartilage in the right knee. (Tr. 13). However, there is medical evidence in the record that plaintiff saw Dr. Robert C. Brown in 1994, from whom she received various prescriptions, including one for Naprosyn. The Court takes into consideration that for medical treatment, she must go to Charity Hospital. As her attorney stated at the hearing, she was treated with injections in the knee at Charity in late 1997, which the attorney believes was either celestone or lidocaine, and she has a return appointment in May [of 1998].
The ALJ also stated in his decision that he did not find claimant's testimony to be entirely consistent or credible, because she stated that she had been using a crutch or cane since 1994, but at her medical evaluation by internist Dr. Carroll, there was no mention of the use of assistant devices for ambulation. Of course, there is always the possibility that the doctor simply failed to mention it. The ALJ further stated:
There are no records of any medical treatment until November 1997 clearly indicating that such treatment was not warranted. Furthermore, Charity Hospital notes of November 1997 reveal that she used a crutch or walker, not a cane, further eroding her credibility that she used a cane since 1994. (Emphasis added.).
The ALJ's findings on this issue are internally inconsistent. He first states that it was her testimony that she had been using a crutch or cane since 1994. In the same paragraph, he then makes the above statement, that her credibility was eroded because Charity Hospital notes that she used a crutch or walker, not a cane. The Court does not accept the ALJ's finding that plaintiff's testimony was not consistent or credible on this issue.
Her actual testimony was: "I got this cane, this thing here in `94. I have a, they gave me this crutch and a walking stick. But I can't use the walking stick because I'm off balance and I'll fall. So I'm more balanced with the crutch so that's why I keep the crutch." (Tr. 118).
The plaintiff argued that the ALJ failed to consider whether her medical condition met or equaled section 9.09(a) of the Listing of Impairments and therefore, failed to follow the proper steps in the sequential evaluation process in 20 C.F.R. § 404.1520(d). She also maintains that the ALJ failed to secure an updated medical opinion regarding a finding of equivalence as required by Social Security Ruling (SSR) 96-6p.
9.09 Obesity. Weight equal to or greater than the values specified in Table I for males, Table II for females (100 percent above desired level), and one of the following:
A. History of pain and limitation of motion in any weight-bearing joint or the lumbosacral spine (on physical examination) associated with findings on medically acceptable imaging techniques of arthritis in the affected joint or lumbosacral spine;. . . .
Table II. — Women
Height without shoes Weight (pounds) (inches)
* * *
64 ................................ 258
SSR-96-6p 3. An updated medical expert opinion must be obtained by the administrative law judge or the Appeals Council before a decision of disability based on medical equivalence can be made. CITATIONS (AUTHORITY): Sections 216(i), 223(d) and 1614(a) of the Social Security Act (the Act), as amended; Regulations No. 4, sections 404.1502, 404.1512(b)(6), 404.1526, 404.1527, and 404.1546; and Regulations No. 16, sections 416.902, 416.912(b)(6), 416.926, 416.927, and 416.946. 1996 WL 374180, *4 (SSA).
Effective October 25, 1999, the Section 9.09 listing of impairment with regard to obesity was deleted by the SSA. However, the ALJ's decision was rendered on May 11, 1998, and the Appeals Council ruled on March 18, 1999. Therefore, Section 9.09 should still have been applied. Plaintiff seems to clearly meet Section 9.09A of the listing of impairments. At the very least, the ALJ should have, under the guidance of SSR 96-6p, secured an updated medical opinion regarding a finding of equivalence. For some reason, he did not even discuss Section 9.09A, perhaps in the mistaken belief that it no longer applied, not realizing that the deletion of that section was not effective until October 25, 1999.
The SSA noted "[w]e are deleting listing 9.09, "Obesity," from appendix 1, subpart P of part 404, the "Listing of Impairments" (the listings). Although many individuals with obesity are appropriately found "disabled" within the meaning of the Social Security Act (the Act), we have determined that the criteria in listing 9.09 were not appropriate indicators of listing-level severity because they did not represent a degree of functional limitation that would prevent an individual from engaging in any gainful activity. However, in response to public comments, we are adding guidance about evaluating claims for benefits involving obesity to the prefaces of the musculoskeletal, respiratory, and cardiovascular body system listings."
DATES: These regulations will be effective on October 25, 1999.
In summary, it appears to this Court that the plaintiff does meet the criteria under section 9.09A for disability. However, it will remand the case to the ALJ to reconsider plaintiff's claim under that section, and/or secure an updated medical opinion regarding a finding of equivalency if he determines such is still necessary after reconsideration.
New Orleans, Louisiana, this 10th day of February, 2000.
MINUTE ENTRY CHASEZ, M.J. FEBRUARY 9, 2000