Opinion
Case No. 1:02-CV-103-C.
April 15, 2004
REPORT AND RECOMMENDATION
Plaintiff Sarah K. Henry seeks judicial review of a decision of the Defendant, Jo Anne B. Barnhart, Commissioner of Social Security, denying Henry's application for disability benefits.
Statement of the Case
Henry applied for benefits in 1998, claiming she became unable to work on December 1, 1997. (Tr. 51.) After her claim was denied initially and on reconsideration (Tr. 23-33), she sought and was given a hearing before Administrative Law Judge (ALJ) Ward D. King, who denied her claim as well (Tr. 34-35, 12-29). The Appeals Council denied review. (Tr. 5-6.)
At the time of the administrative hearing, Henry was 59 years old. She has a degree in pharmacy (Tr. 196) and previously worked as a pharmacist, clinical technician, and teacher (Tr. 199.). She most recently worked as a self-employed farmer. (Tr. 203.) She testified that she broke her foot in May 1985, but the break did not heal properly, resulting in soft tissue damage and pain. (Tr. 204.) In 1990, she saw Dr. Reynolds about the pain, and he performed surgery. (Tr. 205.) In addition to the pain in her foot and ankle, she was suffering from hypertension and pain in her knees. She was unable to work due to these problems. (Tr. 206.) From 1990 through 1996, she tried to perform three different jobs but was unable to work for longer than a few months at a time due to pain. (Tr. 206-07.)
Dr. Reynolds treated Henry beginning in 1990 and last saw her in 1997. He performed surgery on her left foot in October 1990 but the foot failed to respond as expected. She experienced a great deal of pain in her left foot, ankle, and knee, which persisted despite physical therapy and other treatments. Analgesics and anti-inflammatory medications did not control the pain. Her condition was compounded by her hypertension and peptic ulcer symptoms. An MRI scan in 1992 showed degenerative changes and a torn meniscus in the knee. Her pain persisted to such a degree that she was unable to stand or even sit for more than 30 minutes in any position. By 1997, she was unable to continue working because of the pain. (Tr. 171.) Dr. Reynolds stated that Henry was unable to perform work requiring prolonged sitting or standing and activities of daily living. (Tr. 172.) According to a residual functional capacity questionnaire, Dr. Reynolds concluded that Henry was able to stand and/or walk one hour during an 8-hour workday, 30 minutes continuously, and was able to sit 3 hours in an 8-hour workday, 30 minutes to 1 hour continuously. He answered "unlikely" to the question, "Can the patient do work providing he/she can alternate between sitting and standing?" (Tr. 168-70.)
Standard of Review
Judicial review of the Commissioner's determination is limited to whether it is supported by substantial evidence based on the record as a whole and whether the Commissioner applied the proper legal standard. Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001) (citing Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994)).Discussion
In making disability determinations, the Commissioner applies a five-step analysis. The hearing officer decides whether: (1) the claimant is unable to engage in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment is listed, or equivalent to an impairment listed, in appendix I of the social security regulations; (4) the impairment prevents the claimant from doing past relevant work; and (5) the impairment prevents the claimant from performing any other substantial gainful activity. Leggett v. Chater, 67 F.3d 558, 563 n. 2 (5th Cir. 1995). The claimant has the burden of proof on the first four steps. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). If the claimant meets the burden on steps one, two, and three, then she is disabled. If the claimant does not meet the burden on step three but does on step four, then, on the fifth step, the burden shifts to the Commissioner to show that the claimant is capable of performing work in the national economy. Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984).
This case is a step four denial. At step one, ALJ King found that Henry had not engaged in substantial gainful activity since her alleged onset date. (Tr. 16.) At step two, he found that she had the severe impairments of status post stroke, status post ankle surgery, osteoarthritis of the right hip, chronic left ankle pain, and mild pattelofemoral pain on the left and that these impairments significantly limited her ability to perform basic work-related activities prior to her last date insured. ( Id.) At step three, ALJ King found that these impairments, singly and in combination, did not meet or equal the criteria for any listed impairment. ( Id.)
It is the ALJ's findings at step four with which Henry takes issue, specifically, his finding that she retained the Residual Functional Capacity (RFC) to perform light work. ALJ King found that Henry could perform work at the light exertional level prior to December 31, 1997, that she "could lift and carry 20 pounds occasionally and 10 pounds frequently," and that she "could also sit, stand, and walk six hours in an eight-hour day." (Tr. 18.) Henry contends the RFC finding is not supported by substantial evidence and/or was reached through errors of law. She complains that the ALJ failed to give any weight to the opinion of J. Christopher Reynolds, M.D., and that the ALJ erred by finding that Dr. Reynolds' opinion was based solely on her subjective complaints of pain. She contends that objective medical evidence is present to support her complaints. Henry further argues that the ALJ erred in finding that she had a sporadic work history.
Social Security Ruling 96-8p provides that RFC is an assessment of a claimant's ability to perform sustained work-related physical and mental tasks in a work setting on a regular and continuing basis. Myers, 238 F.3d at 620. "A `regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." SSR 96-8p. RFC is what a claimant can do despite his or her limitations, 20 C.F.R. § 404.1545; it is not the least the claimant can do but the most, SSR 96-8p.
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 416.967(b). A claimant must have the ability to perform substantially all of the foregoing to be considered capable of light work. Id. According to Social Security Ruling 83-10, light work entails standing or walking off and on for a total of about 6 hours in an 8-hour day and intermittent sitting throughout the day.
In the administrative decision where ALJ King found that Henry could perform work at the light exertional level, he did not cite to any exhibits in support of this finding. (Tr. 18.) No medical expert testified at the administrative hearing, and there are no functional capacity assessments or physician statements which support the ALJ's findings as to Henry's functional abilities. The record is, in fact, devoid of any such assessments — except for those of Dr. Reynolds.
The administrative decision rests on the rejection of Dr. Reynolds' opinion. Before declining to give any weight to a treating doctor's opinion, an ALJ must consider the following factors: length of treatment; frequency of examination; nature and extent of relationship; support provided by other evidence; consistency of opinion with record; and specialization. Myers, 238 F.3d at 621 (citing Newton v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000)). In evaluating Dr. Reynolds' opinions, the ALJ substantially complied with the regulation. He discussed length of treatment, history of examination, other evidence to some extent, and consistency of opinion with the record. However, he did not discuss Dr. Reynolds' assessment of Henry's functional abilities. (Tr. 168-70.) Furthermore, as mentioned above, he did not support his findings as to Henry's residual functional capacity with any evidence because there is no opinion or evidence in the record concerning Henry's functional abilities other than Dr. Reynolds' assessment, which the ALJ did not discuss at all. Basically, Dr. Reynolds' assessment is uncontroverted. Since the ALJ did not discuss it, there is no showing that he considered it. Even if he had discussed and rejected it, there is nothing to show that Henry meets the requirements for light work.
The Commissioner's decision must be reversed for consideration of Henry's ability to perform light work. There is nothing in the record to show that she can. There is only evidence that she, in fact, cannot. The substantial evidence standard requires that there be some evidence to support the Commissioner's decision. See Myers, 238 F.3d at 619 (citing Greenspan, 38 F.3d at 236).
For the foregoing reasons, this court recommends that the United States District Court reverse the Commissioner's decision and remand this case for further proceedings.
Pursuant to 28 U.S.C. § 636(b)(1), any party has the right to serve and file written objections to the Report and Recommendation within 10 days after being served with a copy of this document. The filing of objections is necessary to obtain de novo review by the United States District Court.