Opinion
Civil Action No. 97-831 (JBS)
Filed: April 14, 1999
Elizabeth A. Patterson, Esq., Polonsky Polonsky, Audobon, N.J., Attorney for Plaintiff.
Faith S. Hochberg, United States Attorney, By: Peter G. O'Malley, Assistant United States Attorney, Newark, N.J., Attorney for Defendant.
OPINION
This matter comes before the court pursuant to section 205 of the Social Security Act ("Act"), as amended, 42 U.S.C. § 405(g), to review the final decision of the Commissioner of the Social Security Administration ("Commissioner"), denying plaintiff's claim for a period of disability and disability insurance benefits under Title II of the Act. The principal issue to be decided is whether the Commissioner's decision that Mr. Jacques retains the residual functional capacity to perform other jobs which exist in significant numbers in the national economy is supported by substantial evidence. For the reasons stated herein, this court reverses the Commissioner's decision and awards benefits.
I. Background
A. Procedural History
Plaintiff, Mark Jacques, applied for social security benefits under the Social Security Act (the "Act") on January 12, 1995. (Stip. of Facts at B1.) The claim was denied initially and upon reconsideration. (Id. at B2.) On March 13, 1996, plaintiff appeared at a hearing before Administrative Law Judge ("ALJ") Alan M. Neff. (Id. at B3.) The ALJ ruled that the plaintiff was not disabled because he remained capable of performing sedentary work, which became the final decision of the Commissioner on January 15, 1997 when plaintiff's request for review was denied. (Id. at B4-5.)
In his decision, the ALJ determined that plaintiff did not have a disability as defined in the Act. (Id. at B11.) The ALJ noted that plaintiff has not engaged in substantial gainful activity since December 15, 1994, that he is afflicted by hepatitis C, dysthymia, and alcohol abuse, and that he is unable to perform his past relevant work, but he found that plaintiff does not have a listed impairment (or combination of impairments) under the Act. (Id. at B2-3, B6.) The ALJ, furthermore, indicated that plaintiff has the residual functional capacity to perform the physical exertion requirements of work, with the exception that he is unable to lift and carry items in excess of ten pounds on a sustained basis. (Id. at B5.)
Although plaintiff demonstrated that he was unable to resume his past relevant work due to his impairments, the ALJ concluded that plaintiff has the residual functional capacity to perform sedentary work. (R. at 23.) Based on plaintiff's exertional capacity for sedentary work and his age, education, and work experience, the ALJ concluded that the regulations supported a finding of not disabled. (Stip. of Facts at B9.)
On July 25, 1996, plaintiff submitted a request for review of the ALJ's decision and submitted additional evidence. (R. at 8.) On January 15, 1997, the Appeals Council concluded that neither the additional evidence nor plaintiff's contentions provided a basis for changing the ALJ's decision. (Id. at 5.)
The additional evidence, a residual functional capacity evaluation dated February 2, 1996 and a psychiatric report dated July 12, 1996, are discussed in detail in plaintiff's medical history.
B. Personal and Medical History
Plaintiff, born on June 14, 1954, received sixteen years of education and last worked in December 1994 at a bakery counting and boxing frozen rolls. (Stip. of Facts at A7, A9, B8.) He served in the military, first in the National Guard from 1972 to 1975, and then from 1975 to 1978 in the United States Army 101st Airborne. (R. at 51.) After his service, plaintiff received a bachelor's degree in social sciences and psychology. (Id. at 52.) Continuing through 1994, with the exception of the two times he was admitted to a drug and alcohol detoxification center, in 1981 and 1989, plaintiff's work history has been steady. Though the ALJ did not note it in his decision, the record reflects that plaintiff spent the bulk of his career working as a residential counselor with school aged autistic children, a physically demanding position because of the need to physically prompt the children. (Id.) Plaintiff additionally worked as a Sears mechanic, a carpenter's helper, a lab technician, a warehouse clerk, a salesman, and a chemical wholesaler, many of which were physically demanding jobs. (Joint Stipulation of Facts at A9.) The chemical wholesaler's position, for example, involved carrying 50 and 100 pound bags, loading trucks, and driving all over New Jersey. (R. at 52-53.)
Plaintiff testified that he has been unable to work since December of 1994 due to pain, fatigue, and mental confusion. (Id. at A10.) At that time, plaintiff began to complain of arthritis. (R. at 21.) By February of 1995, the Veteran's Administrative Hospital ("VA") found that plaintiff was suffering from hepatitis C and cyroglobulinemia. (Id.) Plaintiff also was depressed and easily fatigued. (Id.) That summer, plaintiff was involved in an automobile accident. (Id. at 22.) Plaintiff currently receives treatment from a chiropractor for a ruptured disc in his neck, he experiences considerable pain in his hips, shoulders, and knees, and he is frequently fatigued and has difficulty sleeping. (Id.) In a typical day, plaintiff accomplishes very little beyond basic household chores. (Id.) He testified, for example, that after he drives his paramour to work in the morning, he must come home immediately and take a nap, and that the 25 mile drive from his home to the Veteran's Administration in Philadelphia for check-ups once or twice a month exhaust him. (R. at 53, 58.) Plaintiff also testified that he is unable to do a whole load of dishes, and that he is often forgetful while cooking. (Id. at 58-59.)
In addition to plaintiff's physical problems and fatigue, plaintiff also has a history of depression. When admitted to the detoxification center in 1989, he was depressed and suicidal. (Id.) Though doctors and tests have confirmed that plaintiff has been alcohol and drug free since April of 1994 (Id. at 21, 22), plaintiff continues to suffer from dysthymic disorder. (Joint Medical Abstracts at 9.) Plaintiff testified that he is under doctor's care for his emotional state. (R. at 56.) At the time of the hearing, plaintiff had begun to be treated for depression, an action which had not previously been done because of possible complications with the Interferon treatment plaintiff was already receiving. (Id. at 57.)
The record contains a great deal of evidence accumulated from the various doctors who have treated plaintiff over the years. Descriptions of those doctors' reports which are relevant to the current appeal follow.
On March 8, 1995, at the request of the New Jersey Division of Disability Determinations, Barry Geller, M.D. conducted a psychiatric evaluation of plaintiff. (Joint Medical Abstracts at 8.) Plaintiff complained that he was immobilized by chronic fatigue, and that as a result he stopped working in December 1994. (Id.) Dr. Geller opined that plaintiff suffered from polysubstance abuse and dysthymic disorder. (Id. at 9.)
R. Ahmad, M.D. also treated plaintiff on March 8, 1995, and noted that plaintiff complained of constant fatigue and pain in his joints. (R. at 236.) Dr. Ahmad stated, "However, he is able to ambulate easily without any problem, after adequate rest." (Id.) Furthermore, Dr. Ahmad found that plaintiff's range of motion of all joints was normal, except for discomfort during extreme motions. (Id.)
Lawrence Barr, D.O. conducted an orthopedic evaluation of plaintiff on August 25, 1995 due to plaintiff's left hip and shoulder pain secondary to a motor vehicle on June 23, 1995. (Joint Medical Abstracts at 12.) Dr. Barr found that flexion, side bending, and rotation of the cervical spine were 70% normal, and that all motions were painful. (Id.) Dr. Barr also found tenderness and limited motion in plaintiff's upper thoracic region and lumbosacral spine. (Id.) However, Dr. Barr found that plaintiff has a good range of motion in his left hip and left arm. (Id.) An MRI revealed a bulging disc at C5-6 and a herniated nucleus pulposus at C6-7. (Id.) Plaintiff was diagnosed with acute traumatic cervical, thoracic, and lumbosacral sprain and strain. (Id. at 12-13.) Dr. Barr found that plaintiff's injuries were severe, and recommended that plaintiff continue his physiotherapy regimen and avoid strenuous activity. (Id. at 13.)
The plaintiff's entire medical history is summarized in the Medical Abstracts. The court has selected the medical reports relevant to its determination.
On August 28, 1995, Dennis Ribatsky, D.D.S. treated plaintiff for injuries from the accident, examining clicking in his jaw, pain in his right ear, pressure behind his right eye, and headaches in the ocular and frontal regions. (Id.) Dr. Ribatsky diagnosed traumatically induced arthropathy, retrodiscal synovitis, capsulitis, anterior dislocation of the interarticular disc of the right temporomandibular joint, and myoplasm of the masticatory musculature, and treated plaintiff accordingly. (Id. at 13-14.) Dr. Ribatsky found that plaintiff's injuries were permanent, that he would periodically experience pain as a result, and that he would have to limit his diet and the range of his jaw motion on a long-term basis. (Id.)
Dr. Barr treated plaintiff again on October 13, 1995 and November 15, 1995 and affirmed his prior diagnoses. (Id. at 14-15.) He noted that plaintiff continued to complain that his daily activities remained significantly limited due to his pain. (Id. at 15.) Dr. Barr recommended that plaintiff continue with his treatment and continue to modify his daily activities. (Id.) Dr. Barr also recommended an MRI of plaintiff's lumbar spine and left hip. (R. at 287.)
O. Volchanek, M.D. completed plaintiff's residual functional capacity evaluation on February 2, 1996. (Joint Medical Abstracts at 16.) Dr. Volchanek found that plaintiff could sit for two out of eight hours in a day and that plaintiff could stand or walk for one out of eight hours. (Id. at 16-17.) Dr. Volchanek indicated that plaintiff could lift one to four pounds on a continuous basis, five to nine pounds frequently, and fifteen to nineteen pounds occasionally. (Id. at 17.)
On July 12, 1996, A. Harkaut, Ph.D. treated plaintiff and diagnosed affective disorder and anxiety related disorder. (Id.) Dr. Harkaut noted that plaintiff was anxious and depressed, experienced difficulty sleeping, decreased appetite, and chronic fatigue. (Id.) Dr. Harkaut characterized the psychological problems as mixed anxiety depressive disorder. (Id.)
It is with this background in mind that the court now determines whether the ALJ's denial of disability insurance benefits is based on substantial evidence in the record.
II. Discussion
A. "Disability" Defined and Burdens of Proof
The Social Security Act defines "disability" for purposes of plaintiff's entitlement to benefits as the inability "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 12 months." 42 U.S.C. § 1382c(a)(3)(A). Under this definition, a claimant qualifies as disabled "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has promulgated regulations for determining disability applicable to Disability Insurance cases. See 20 C.F.R. § 404.1501-404.1599. Under these regulations, substantial gainful activity is defined as "work that — (a) involves doing significant and productive physical or mental duties; and (b) is done (or intended) for pay or profit." 20 C.F.R. § 404.1510. This definition presupposes a regular, continuing, and sustained ability to perform such work. Kangas v. Bowen, 823 F.2d 775, 778 (3d Cir. 1987).
The Commissioner has promulgated regulations that determine disability by application of a five-step sequential analysis codified in 20 C.F.R. § 404.1520. The Commissioner evaluates each case according to a five-step process until a finding of "disabled" or "not disabled" is obtained. 20 C.F.R. § 404.1520(a). This five-step process is summarized as follows:
1. If the claimant currently is engaged in substantial gainful employment, he will be found "not disabled."
2. If the claimant does not suffer from a "severe impairment," he will be found "not disabled."
3. If the severe impairment meets or equals a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 and has lasted or is expected to last for a continuous period of at least twelve months, the claimant will be found "disabled."
4. If the claimant can still perform work he has done in the past ("past relevant work") despite the severe impairment, he will be found "not disabled."
5. Finally, the Commissioner will consider the claimant's ability to perform work ("residual functional capacity"), age, education and past work experience to determine whether or not he is capable of performing other work which exists in the national economy. If he is incapable, a finding of disability will be entered. On the other hand, if the claimant can perform other work, he will be found not to be disabled.20 C.F.R. § 404.1520(b)-(f).
This analysis involves a shifting burden of proof. Wallace v. Secretary of Health Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983). In the first four steps of the analysis, the burden is on the claimant to prove every element of her claim by a preponderance of the evidence. In the final step, however, the Commissioner bears the burden of proving that work is available for the petitioner: "Once a claimant has proved that he is unable to perform his former job, the burden shifts to the Commissioner to prove that there is some other kind of substantial gainful employment he is able to perform." Kangas, 823 F.2d at 777. See Olsen v. Schweiker, 703 F.2d 751, 753 (3d Cir. 1983).
B. Standard of Review
A reviewing court must uphold the Commissioner's factual decisions if they are supported by "substantial evidence." 42 U.S.C. § 405(g), 1383(c)(3); Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992),cert. denied, 507 U.S. 924 (1993); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986); Newhouse v. Heckler, 753 F.2d 283, 285 (3d Cir. 1985). "Substantial evidence" means more than "a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The inquiry is not whether the reviewing court would have made the same determination, but, rather, whether the Commissioner's conclusion was reasonable. See Brown, 845 F.2d at 1213. Thus, substantial evidence may be slightly less than a preponderance. See Hanusiewicz v. Bowen, 678 F. Supp. 474, 476 (D.N.J. 1988).
The reviewing court, however, does have a duty to review the evidence in its totality. See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984). In order to do so, "a court must `take into account whatever in the record fairly detracts from its weight.'" Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (quoting Willbanks v. Secretary of Health Human Servs., 847 F.2d 301, 303 (6th Cir. 1988) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). The Commissioner has a corresponding duty to facilitate the court's review: "[w]here the [Commissioner] is faced with conflicting evidence, he must adequately explain in the record his reasons for rejecting or discrediting competent evidence." Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D.Pa. 1987) (citing Brewster v. Heckler, 786 F.2d 581 (3d Cir. 1986)). As the Third Circuit has held, access to the Commissioner's reasoning is indeed essential to a meaningful court review:
Unless the [Commissioner] has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits, to say that his decision is supported by substantial evidence approaches an abdication of the court's duty to scrutinize the record as a whole to determine whether the conclusions reached are rational.Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978). Nevertheless, the district court is not "empowered to weigh the evidence or substitute its conclusions for those of the fact-finder." Williams, 970 F.2d at 1182.
Some types of evidence will not be "substantial." For example,
[a] single piece of evidence will not satisfy the substantiality test if the [Commissioner] ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence — particularly certain types of evidence (e.g. that offered by treating physicians) — or if it really constitutes not evidence but mere conclusion.Wallace, 722 F.2d at 1153 (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)).
The Third Circuit has long held that "[a] court considering a claim for disability benefits must give greater weight to the findings of a treating physician." Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993). See Kane v. Heckler, 776 F.2d 1130, 1135 (3d Cir. 1985). This is particularly true "`when the opinion reflects an expert judgement based on a continuing observation of the patient's condition over a prolonged period of time.'" Rocco v. Heckler, 826 F.2d 1348, 1350 (3d Cir. 1987) (quoting Podedworny v. Harris, 745 F.2d 210, 217 (3d Cir. 1984)).
The Third Circuit has also held that the ALJ cannot reject a treating physician's testimony in the absence of contradictory medical evidence.See Jones v. Sullivan, 954 F.2d 125, 128-29 (3d Cir. 1991); Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988); Rossi v. Califano, 602 F.2d 55, 58 (3d Cir. 1979). However, an ALJ can reject the opinion of a treating physician if he or she explains on the record the reasons for doing so.See Allen v. Bowen, 881 F.2d 37, 41 (3d Cir. 1989); Brewster, 786 F.2d at 585. Moreover, apart from the substantial evidence inquiry, a reviewing court is entitled to satisfy itself that the Commissioner arrived at her decision by application of the proper legal standards. Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983); Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981).
III. Analysis
The ALJ rested at step five of the five-step process, finding that plaintiff retained the residual functional capacity to perform sedentary work and thus found that plaintiff is not disabled under the Act.
Plaintiff claims that: (1) the ALJ failed to consider plaintiff's impairments in combination; (2) the ALJ committed an error of law by rejecting the treating physician's medical opinion without offering an adequate explanation; (3) the ALJ failed to consider plaintiff's mental impairments; (4) the ALJ's rejection of plaintiff's subjective complaints was not supported by substantial evidence; (5) the ALJ's finding that plaintiff can perform sedentary work is unsupported by substantial evidence; and (6) the ALJ failed to solicit the testimony of a vocational expert under step five of the sequential evaluation.
Defendant argues that the ALJ's determination that plaintiff is not disabled is supported by substantial evidence.
A. Consideration of the Plaintiff's Impairments in Combination
Plaintiff first contends that the ALJ failed to consider his impairments in combination. To determine at step five whether there are occupations in the national economy which the plaintiff can perform, the ALJ must evaluate the plaintiff's exertional and non-exertional impairments together. See Burnham v. Schweiker, 682 F.2d 456, 457-58 (3d Cir. 1982).
The ALJ noted that plaintiff "has hepatitis C, dysthymia, alcohol and polysubstance abuse, but that he does not have . . . [a] combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4." (R. at 24.) In rejecting the plaintiff's complaints, the ALJ stated that there was "no evidence of [depression] on psychiatric examination." (Id. at 23.) However, that statement contradicts the ALJ's own finding that Dr. Geller diagnosed plaintiff with dysthymia, which is characterized by depression. As discussed below, the ALJ did not adequately consider the plaintiff's mental impairments, and thus he failed to consider all the impairments in combination.
Moreover, all of the medical evidence confirms that plaintiff has been alcohol and drug free since April of 1994, so the ALJ's statement that plaintiff continued to suffer from polysubstance abuse was not technically accurate.
B. Consideration of the Treating Physician's Medical Opinion
Plaintiff next contends that the ALJ committed an error of law by rejecting the medical opinion of the treating physician, Dr. Barr. (Pl. Brief at 11-13.) Plaintiff notes that the ALJ rejected Dr. Barr's medical opinions as they were inconsistent with a residual functional capacity assessment reputedly prepared by Dr. Barr. (Id. at 13.) Plaintiff claims that Dr. Barr did not conduct the residual functional capacity assessment, that in fact it was completed by Dr. Kemenosh. (Id.) In addition, plaintiff claims that the ALJ failed to consider the evidence offered by Drs. Volchanek and Harkaut. (Id.)
The ALJ must be especially circumspect "about dis-regarding the opinions of attending physicians, particularly `when the opinion reflects a patient's condition over a prolonged period of time.'" Rocco, 826 F.2d at 1350 (quoting Podedworny, 745 F.2d at 17). Accordingly, an ALJ may not make purely speculative inferences from medical reports. See Smith v. Califano, 637 F.2d 968, 972 (3d Cir. 1981). The Third Circuit has repeatedly held that "an ALJ is not free to set his own expertise against that of physicians who present competent medical evidence." Van Horn v. Schweiker, 717 F.2d 871, 874 (3d Cir. 1983) (quoting Fowler v. Califano, 596 F.2d 600, 603 (3d Cir. 1979)). In the absence of medical evidence to the contrary, an ALJ must accept the medical judgment of a treating physician. See Jones, 954 F.2d at 128-29.
Nevertheless, when opinions offered by treating physicians fail to explain discrepancies in plaintiff's medical history, the ALJ can determine that those opinions are not controlling. Id. at 129 (citingWright v. Sullivan, 900 F.2d 675, 683 (3d Cir. 1990)); Newhouse, 753 F.2d at 286. Furthermore, the better the explanation a source provides for an opinion, the more weight an ALJ should give that opinion. 20 C.F.R. § 404.1527(d)(3). The ALJ should evaluate the degree to which these opinions consider all of the pertinent evidence in plaintiff's claim, including opinions of treating and examining sources.Id. It is not appropriate for the ALJ to substitute his own opinion for those of experts in matters requiring expert skill, knowledge, or experience. See Gatling v. Sullivan, No. 91-5072 (CSF), 1992 WL 209537, at *4 (D.N.J. Aug. 13, 1992) (quoting LaFace v. Heckler, 589 F. Supp. 192-98 (S.D.N.Y. 1984)).
After discussing Dr. Barr's orthopedic treatment of plaintiff, the ALJ stated, "In the opinion of the undersigned, the residual functional capacity questionnaire completed by Dr. Barr on August 15, 1995, is inconsistent with his examination." The August 15, 1995 residual functional capacity assessment, as plaintiff correctly argues, was not completed by Dr. Barr. Not only is the residual functional capacity assessment signed by Dr. Kemenosh, but it is also completely blank; this court fails to understand how a blank assessment could be inconsistent with Dr. Barr's medical opinion. (See R. at 271-72.) Thus, the ALJ did not offer an adequate explanation for rejecting the treating physician's opinion.
Dr. Barr found that plaintiff's injuries after the accident were severe, and he recommended that plaintiff avoid strenuous activity and continue to modify all activities of daily living. (Id. at 273, 287.) These conclusions are consistent with the ALJ's finding that plaintiff is incapable of performing his past relevant work, but they controvert the ALJ's finding that plaintiff retains the residual functional capacity to perform sedentary work. Thus, the ALJ's rejection of Dr. Barr's medical opinion is not supported by substantial evidence.
As a sidenote, neither Dr. Volchanek nor Dr. Harkaut treated plaintiff with sufficient frequency to qualify as treating physicians, and the ALJ is not required to accord their opinions substantial deference. The reports of Dr. Volchanek and Dr. Harkaut, however, were not available to the ALJ at the hearing and will be discussed in greater detail, infra, Parts III.C and III.E.
C. Consideration of Plaintiff's Mental Impairments
Plaintiff argues that the ALJ failed to consider the plaintiff's mental impairments. Plaintiff claims that the ALJ did not consider his depression and mixed anxiety depressive disorder in reaching his conclusion, because plaintiff presented additional evidence of these claims after the ALJ's decision was handed down. (Pl. Brief at 18.)
The Appeals Council must consider any additional evidence submitted after the ALJ's decision, as long as it is material and relates to the period "on or before the date of the administrative law judge hearing decision." 20 C.F.R. § 404.970, 416.1470 (1997). The Appeals Council must evaluate the entire record and the new evidence, and need not review the case unless it finds that the ALJ's conclusion is "contrary to the weight of the evidence currently of record." Id.
The ALJ stated that plaintiff "testified to confusion and depression but we find no evidence of this on psychiatric evaluation." (R. at 23.) Although the ALJ was unable to base his decision on the subsequent finding by Dr. Harkaut that plaintiff suffers from depression and mixed anxiety depressive disorder, the ALJ apparently failed to recognize that dysthymia, which he explicitly noted that Dr. Geller diagnosed plaintiff as having, is characterized by ongoing depression. Nevertheless, the ALJ concluded that plaintiff did not suffer from a significant mental disorder and rejected the plaintiff's subjective complaints as exaggerated.
Although the Appeals Council failed to discover the ALJ's error, the Appeals Council should have found that the ALJ's finding was contrary to the weight of the evidence of record based on the additional evidence offered by plaintiff such as Dr. Harkaut's diagnosis of mixed anxiety depressive disorder. Thus, the Appeals Council's rejection of the additional evidence is not supported by substantial evidence. Plaintiff's claim should be reevaluated in light of this additional evidence.
This court would usually send the case back to the ALJ for reexamination in light of such relevant evidence. Here, however, the evidence which the ALJ already did consider and did not adequately explain alone leads to the conclusion that plaintiff is disabled. Therefore, this court will enter judgment for the plaintiff.
D. Weighing Plaintiff's Subjective Complaints of Pain
Plaintiff claims that the ALJ's rejection of his subjective complaints of pain is not supported by substantial evidence. (Pl. Brief at 19.) Plaintiff argues that subjective complaints of pain must be seriously considered even when not supported by objective medical evidence, and that the ALJ failed to identify a clear rationale for his finding. (Id. at 20, 22.)
When a plaintiff testifies that he suffers from pain and that testimony is corroborated by medical reports, the ALJ must give the subjective allegations great weight. See 20 C.F.R. § 404.1529(a)-(c); Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986). However, the ALJ has discretion "to evaluate the credibility of a claimant and to arrive at an independent judgment in light of medical rulings and other evidence regarding the true extent of the [ailment] alleged by the claimant."LaCorte v. Bowen, 678 F. Supp. 80, 83 (D.N.J. 1988) (quoting Brown v. Schweiker, 562 F. Supp. 284, 287 (E.D.Pa. 1983)). Where the "[Commissioner] is faced with conflicting evidence, he must adequately explain in the record his reasons for rejecting or discrediting competent evidence." Willbanks, 847 F.2d at 303.
The regulations provide:
Since symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone, we will carefully consider any other information you may submit about your symptoms. . . . Because symptoms, such as pain, are subjective and difficult to quantify, any symptom-related functional limitations which you, your treating or examining physician or psychologist, or other persons report, which can be reasonably accepted as consistent with the objective medical evidence and other evidence, will be taken into account . . . in reaching a conclusion as to whether you are disabled.20 C.F.R. § 404.1529(c)(3).
The ALJ found, "The claimant's testimony to the effect that he suffers such severe pain and fatigue, memory or concentration loss, as to preclude all work activity is not considered credible to the degree alleged when viewed in light of the record in its entirety." (R. at 24.) Dr. Ahmad's report, which implicitly questions plaintiff's subjective complaints of pain based on the doctor's single examination of the plaintiff in March of 1995, is the only evidence of record that could be at all construed to support this conclusion, and even that report does not contradict plaintiff's complaints of fatigue associated with Hepatitis-C. (See R. at 236-238.)
On the other hand, Dr. Barr's examination shows that plaintiff's range of motions and the severity of his injuries were consistent with his complaints of pain. As the treating physician, Dr. Barr's medical opinion is entitled to greater weight than the opinion of Dr. Ahmad. Furthermore, Dr. Ribatsky found that Mr. Jacques experienced significant pain in his jaw.
The medical evidence, especially that of plaintiff's treating physicians, thus confirms plaintiff's own subjective complaints. In light of the overwhelming medical evidence supporting plaintiff's recounting of his symptoms, no reasonable mind could accept Dr. Ahmad's single examination, which did not say that plaintiff did not suffer from fatigue or depression, as adequate to support a conclusion that plaintiff was not suffering from pain or fatigue. Thus, the ALJ's finding that plaintiff's complaints of pain and fatigue were not credible is not supported by substantial evidence.
E. Consideration of the Plaintiff's Residual Functional Capacity
Plaintiff argues that the ALJ's finding that plaintiff retains the residual functional capacity to perform sedentary work is unsupported by substantial evidence. (Pl. Brief at 27.) Plaintiff contends that his medical conditions and psychological impairments preclude his performance of sedentary activity. (Pl. Brief at 29.)
The ALJ stated, "The claimant has the residual functional capacity to perform the physical exertion and non-exertional requirements of work except for lifting and carrying in excess of 10 pounds on a sustained basis (exertional)." (R. at 24.) Thus, the ALJ found that plaintiff retains the residual functional capacity for sedentary work. Certainly troubling in this light is Dr. Volchanek's residual functional capacity questionnaire, presented after the ALJ's decision, which indicates that plaintiff cannot stand for more than one hour or sit for more than two hours in an eight hour work day. The Appeals Council's determination not to review the ALJ's decision based on this new evidence is questionable at best, as the ALJ's finding was contrary to the weight of the record including this evidence.
In addition, the ALJ's finding is inconsistent with the record that actually was before it, including the medical opinion of Dr. Barr that plaintiff's motions were severely limited and the plaintiff's subjective complaints of pain. Thus, the ALJ's finding that plaintiff has the residual functional capacity for sedentary work is not supported by substantial evidence.
F. Examination of the ALJ's Step Five Analysis
Plaintiff argues that the ALJ failed to evaluate fully the plaintiff's claim under step five of the sequential evaluation process as he failed to secure the required testimony of a vocational expert. (Pl. Brief at 29.)
At Step 5 of the sequential analysis, the burden shifts to the ALJ to prove that there is some other kind of substantial gainful employment that the plaintiff is able to perform. Kangas, 823 F.2d at 777. The ALJ must determine whether plaintiff, "considering age, education, mental and physical limitations and work experience[,] `has the capacity to perform specific jobs that exist in the national economy.'" Olsen, 703 F.2d at 753 (quoting Rossi, 602 F.2d at 57). An ALJ is never required to use a vocational expert, but rather has discretionary power to do so. See C.F.R. § 404.1566(e). At step five, the ALJ need only rely on "competent evidence", not necessarily the opinion of a vocational expert, in determining whether the claimant can perform sedentary work.See Gilliand v. Heckler, 786 F.2d 178, 183 (3d Cir. 1986).
The ALJ stated in his findings that "[b]ased on an exertional capacity for sedentary work, and the claimant's age, education, and work experience, [the rules and regulations] direct a conclusion of `not disabled.'" R. at 24.) This finding shows that the ALJ relied on competent evidence in reaching his conclusion. It was not necessary for the ALJ to employ a vocational expert to support this conclusion.
G. The Appropriate Remedy Here is Reversal and Award of Benefits
Upon review of the entire record, the reviewing court "shall have power to enter . . . a judgement affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). In reviewing a case and awarding benefits to a claimant, the reviewing court must establish that the administrative record of the case has been fully developed and that substantial evidence in the record as a whole indicates that the claimant is disabled and entitled to benefits. Podedworny, 745 F.2d at 221-223. When "further administrative proceedings would simply prolong [the claimant's] waiting and delay his ultimate receipt of benefits, reversal is especially appropriate." (Id. at 223.) These principles have been consistently reaffirmed by the Third Circuit. See e.g. Woody v. Secretary of Health Human Servs., 859 F.2d 1156, 1162-1163 (3d Cir. 1988); Caffee v. Schweiker, 752 F.2d 63, 68 (3d Cir. 1985).
This case is ripe for reversal. The administrative record is fully developed and to this court's best knowledge Mr. Jacques has fully cooperated in providing the Commissioner with all the necessary documents for the comprehensive analysis of this case to which the law entitles him.
The result of this cooperation, unfortunately, has been not only a superficial analysis by the ALJ but also an erroneous one. In this court's opinion, there exists more than "substantial evidence on the record as a whole indicat[ing] that [plaintiff] is disabled and entitled to benefits." Podedworny, 745 F.2d at 221-222. Indeed, there is overwhelming evidence of disability and remand for a new hearing is not necessary. Based on all of the evidence before this Court, it is evident that Mr. Jacques, excepting a history of polysubstance abuse which ended at least eight months before plaintiff began to experience pain, worked steadily over his lifetime and was unable to continue only when Hepatitis-C set in, causing pain by way of arthritis (which was worsened by a car accident), fatigue, and depression/dysthymia. Due to all of these conditions, which are overwhelmingly supported by evidence in the record, some of which the ALJ considered and some of which he did not, plaintiff is now totally disabled and cannot perform any job in the national economy. Any further proceedings on this matter would simply prolong plaintiff's waiting and delay his ultimate receipt of benefits.See Podedworny, 745 F.2d at 223.
IV. Conclusion
For the reasons discussed, this court finds that the Commissioner's determination that plaintiff is capable of performing sedentary work and not disabled within the meaning of the Act is not supported by substantial evidence. Accordingly, the court reverses the Commissioner's decision and awards benefits.
ORDER
This matter having come before the court upon review of the final decision of the Commissioner of the Social Security Administration denying the claim of plaintiff Mark Jacques for Disability Insurance benefits pursuant to § 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g); and
Upon consideration of the entire record and the submissions of the parties in connection with this matter the court finds that the Commissioner's determination that plaintiff is not disabled within the meaning of the Social Security Act is not supported by substantial evidence;
IT IS this day of April 1999, ORDERED that the Commissioner's decision is REVERSED and the Commissioner shall award benefits to plaintiff.