Opinion
Case No. 03-4100-RDR
March 30, 2004
MEMORANDUM AND ORDER
This is an action to review the decision of defendant to terminate plaintiff's disability benefits. In 1994 plaintiff received a disability benefits award which found that plaintiff was disabled from substantial gainful employment as of January 1, 1992. In 1997 the benefits were continued after plaintiff's status was reviewed. In 2003 defendant adopted the 2002 decision of an administrative law judge (ALJ) who determined that due to medical improvement plaintiff's period of disability ceased as of November 2000. This action seeks a reversal of that decision.
ALJ's 2002 decision
In October 2002, the ALJ made the following findings in reaching the decision relied upon by defendant.
Plaintiff was born in 1954. She has a high school education. She worked as a valve assembler before she became disabled. This work would be classified as "light" work for purposes of analyzing plaintiff's functional capacity. Plaintiff suffered a back injury in 1989. Her attempts to maintain or resume her employment failed, and she was determined to be disabled from substantial gainful employment as of January 1, 1992.
The ALJ determined that plaintiff's condition had improved because her daily activities had increased. The ALJ made reference to plaintiff's description of her daily activities in her testimony and in her answers to a questionnaire.
[C]laimant testified that while her husband was at work during the day, she performed some cooking, did the laundry, and cleaned the house when she was able. Additionally, she indicated that she could drive an automobile, and did so for running errands in town and going to doctor's appointments. Hobbies included canvas sewing, and claimant also noted that she enjoyed reading. Other activities for claimant consisted of visits to her mother-in-law wherein they would talk and have coffee. Otherwise, claimant testified that she spent her day watching television, or alternating ice and heat on her back in the afternoons.
(Tr. 27).
On an activities questionnaire . . . claimant reported no significant problems with respect to self care. Household chores, according to the questionnaire, consisted of cooking about 6 times per week, and doing 5 loads of laundry per week. Herein, claimant reported that she cooked only easy hamburger recipes, and required assistance with carrying heavy loads of laundry. Claimant further reported that she spent about 3 hours per week on house cleaning, i.e., dusting and washing dishes, and she required some assistance with vacuuming, mopping and sweeping. Reference was made to the family finances and herein, claimant reported that, about once a week, she wrote out the checks for the various household bills. Grocery shopping was carried out about once a week and herein, claimant reported that she spent 1 to 2 hours on this activity. Additionally, she indicated that she required assistance with carrying the heavy grocery items. Pleasurable activities, according to the questionnaire, consisted of watching television, reading, or listening to the radio and claimant also reported that she spent 1 1/2 hours per week on reading, and about 1 to 2 hours daily on sewing. She also stated that she spent 1 to 3 hours away from home each day, visiting with her mother-in-law, to talk and drink coffee. Additionally, claimant reported that she went to church services once a week, and these services lasted 1 1/2 hours.
(Tr. 27).
The ALJ found that these activities had increased "considerably" since before November 2000. (Tr. 28).
The ALJ also based his conclusion of medical improvement on the findings of a medical examination dated March 15, 2001.
[C]laimant ambulated without difficulty, and was able to toe and heel walk. It was also reported that claimant was able to touch her toes, and there was no gross scioliosis (sic). Although claimant's thoracic curvature had greater than normal kyphosis, range of motion of the neck and shoulders was full. Additionally, claimant was able to straight leg raise both lower extremities without difficulty, albeit flexion and external rotation equivocally reproduced pain, more on the left than the right.
(Tr. 28-29). The ALJ further recounted that:
An MRI taken of claimant's lumbar spine in July 2001 . . . showed degenerative changes in the L4-5 and L5-S1 intervertebral disc with only mild disc bulging "likely of no clinical significance." Additionally, x-rays taken of claimant's thoracic spine in July 2001 . . . revealed moderate degenerative spurring in the mid and lower dorsal spine, with no subluxation. Moreover, it was noted that the vertebral bodies, interspaces and posterior elements appear intact. Reference is further made to updated treatment records for January 2002 through April 2002 . . . which showed no significant findings on examination, and most of these office visits are with respect to claimant's complaints of chest pressure and heartburn. . . . [Also] examination findings have shown full range of motion of the lumbar spine with only some minor paravertebral spinal muscle tenderness.
(Tr. 29).
The ALJ also noted events that had not happened to support his decision. He found that plaintiff had not required on-going care for bilateral hip pain for some time and that this was an indication of medical improvement. (Tr. 28). He also found that plaintiff had not been hospitalized as an inpatient since November 2000, and that no doctor had stated that plaintiff was disabled or recommended surgery since that date. (Tr. 29).
The ALJ concluded that plaintiff had the following medical impairments: kyphosis of the thoracic spine; somatic dysfunction; osteopenia, lumbar spine; obesity; and degenerative changes, lumbar spine. (Tr. 30). He further concluded that plaintiff was still disabled from her former employment as a valve assembler. (Tr. 30). But, he found that "[s]ubstantial evidence . . . convinces the [ALJ] that claimant, as a result of her orthopedic condition, would be limited to a light, non-physically stressful job wherein she would be allowed to sit and stand at will, and not have to climb ladders, ropes or scaffolding, and would only occasionally have to climb ramps and stairs, and only occasionally stoop, kneel, crouch or crawl." (Tr. 29). He determined on the basis of a vocational expert's testimony that plaintiff could perform various "sedentary/light jobs offering a sit/stand option." (Tr. 29).
ALJ's 1994 decision
In 1994, the ALJ (a different person from the ALJ who issued the 2002 decision) found that "by January 1, 1992, [claimant's] residual functional capacity had reduced to the point she could no longer perform a full range of sedentary work." (Tr. 45). He continued:
Beginning on January 1, 1992, while the claimant still had no impairment, singly or in combination, which met or equaled the medical criteria of any listed impairment in Appendix 1 to Subpart P of Regulations No. 4, her severe neck and back pain so interfered with her ability to function that she was unable to lift and carry even 10 pounds; she could sit for no longer than one hour at a time for a maximum of three to four hours a day; and she could stand and walk for two to three hours at a time for a maximum of three to four hours a day. She was limited in her ability to push and pull hand and foot controls, reach, handle, finger, and feel. She could only occasionally climb, stoop, balance, kneel, crouch, and bend. Therefore, beginning January 1, 1992, she could perform less than a full range of sedentary work.
(Tr. 45).
He concluded:
Beginning January 1, 1992, the claimant was unable to perform any past relevant light to medium work and considering her residual functional capacity for less than a full range of sedentary work with her age (almost 39), her education (twelfth grade), and past relevant work experience, section 201.00(h) of Appendix 2 to Subpart P of Regulations No. 4 then indicates finding of "disabled" is appropriate.
Beginning January 1, 1992, considering the claimant's impairments and limitations within the framework of the Secretary's medical/vocational rules, as supported by vocational information of record, she cannot be expected to make a vocational adjustment to work existing in significant numbers in the national economy.
(Tr. 46).
1997 disability review
In 1997, plaintiff's disability situation was reviewed by the Social Security Administration, and it was determined that plaintiff's disability from substantial gainful activity was continuing. (Tr. 65). No specific findings were made regarding plaintiff's residual functional capacity.
Standards
Defendant's decision to terminate benefits must be based on:
a finding that the physical or mental impairment on the basis of which such benefits are provided has ceased . . .[which is] supported by —
(1) substantial evidence which demonstrates that —
(A) there has been any medical improvement in the individual's impairment or combination of impairments (other than medical improvement which is not related to the individual's ability to work), and
(B) the individual is now able to engage in substantial gainful activity. . . .42 U.S.C. § 423(f). "Medical improvement" is defined as:
any decrease in the medical severity of [the] impairment(s) which was present at the time of the most recent favorable medical decision that [the claimant was] disabled or continued to be disabled. A determination that there has been a decrease in medical severity must be based on changes (improvement) in the symptoms, signs and/or laboratory findings associated with [the] impairment(s).20 C.F.R. § 404.1594(b)(1).
The Tenth Circuit has discussed the application of this standard.
To apply the medical improvement test, the ALJ must first compare the medical severity of the current impairment(s) to the severity of the impairment(s) which was present at the time of the most recent favorable medical decision finding the claimant disabled. [20 C.F.R.] § 404.1594(b)(7). Then, in order to determine that medical improvement is related to ability to work, the ALJ must reassess a claimant's residual functional capacity (RFC) based on the current severity of the impairment(s) which was present at claimant's last favorable medical decision. [20 C.F.R.] § 404.1594(c)(2). The ALJ must then compare the new RFC with the RFC before the putative medical improvements. The ALJ may find medical improvement related to an ability to do work only if an increase in the current RFC is based on objective medical evidence.
Shepherd v. Apfel, 184 F.3d 1196, 1201 (10th Cir. 1999).
We review defendant's decision "to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied." Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quotations and citation omitted). However, "[a] decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it." Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988). A failure to apply the correct legal standards or demonstrate it was done is also grounds for reversal. Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996).
Analysis
In the instant case, plaintiff argues in part that "the ALJ appears to have treated [p]laintiff's claim as if she had never been found `disabled' by the Social Security Administration." Initial brief at p. 13. Plaintiff then focuses her arguments to a large extent upon the ALJ's credibility analysis. We believe that the ALJ failed to apply or that defendant failed to show the court that the ALJ applied the proper legal standards for a medical improvement case. The ALJ acknowledged that plaintiff had been previously determined to be disabled but did not base his determination that she was no longer disabled upon the proper standards for analysis. Instead, he appeared to make a somewhat conclusory evaluation of plaintiff's residual functional capacity with little or no comparison or analysis of how plaintiff's ability to perform basic work functions had or had not improved. In this respect, we agree with plaintiff that the ALJ treated plaintiff as if she had not previously been found disabled. This, we believe, is error. Therefore, while we do not reach plaintiff's arguments regarding credibility, we shall reverse and remand for an application of the proper standards to determine whether benefits should be terminated because of medical improvement.
The ALJ determined that plaintiff has made medical improvement. He appears to have based that conclusion on the following grounds: plaintiff had better range of motion in her back; she can ambulate without difficulty; her straight leg raising result did not suggest significant impairment; she no longer complains of pain in her hips; her trips for medical treatment have become more sporadic; her activities of daily living have increased; and a consulting physician (Dr. Queenan) stated that, "I cannot declare her disabled." (Tr. 28 307).
It is the court's opinion that the ALJ failed to properly consider this and other evidence in the record in the context of the correct legal standards or to show the court that he has done so, and therefore that a remand is necessary in this case.
The standards require, first, that there be a comparison in the medical severity of the impairments present when plaintiff received a favorable disability decision and when plaintiff allegedly ceased to be disabled. Here, there is objective medical evidence of improved range of motion in her back and a decrease or elimination of hip pain. The record also supports the ALJ's findings regarding ambulation and straight leg raising on or about 2000 when disability benefits were terminated, but there is no comparison in those categories to when plaintiff received a favorable disability decision. So, there is no indication that ambulation and straight leg raising have actually improved.
Next, the standards require that the ALJ determine whether the medical improvement is related to the ability to work by comparing the plaintiff's residual functional capacity (RFC) based on the current severity of the impairments, and then examine the RFC at the time before the alleged medical improvements. According to the regulations of the Social Security Administration, RFC is determined:
by looking at how your functional capacity for doing basic work activities has been affected. Basic work activities means the abilities and aptitudes necessary to do most jobs. Included are exertional abilities such as walking, standing, pushing, pulling, reaching and carrying, and nonexertional abilities and aptitudes such as seeing, hearing, speaking, remembering, using judgment, dealing with changes and dealing with both supervisors and fellow workers.
. . .
When new evidence showing a change in signs, symptoms and laboratory findings establishes that both medical improvement has occurred and your functional capacity to perform basic work activities, or residual functional capacity, has increased, we say that medical improvement which is related to your ability to do work has occurred. A residual functional capacity assessment is also used to determine whether you can engage in substantial gainful activity and, thus, whether you continue to be disabled. . . .20 C.F.R. § 404.1594(b)(4).
Here, the ALJ made no finding as to how the improvements in range of motion and hip pain, as well as any alleged improvement in straight leg raising and ambulation, had a positive impact on plaintiff's ability to walk, stand, push, pull, reach and carry and, then ultimately, why they caused an increase in plaintiff's RFC so that plaintiff could perform some light and some sedentary work jobs. Nor are the other references to medical reports applied in an analysis of the basic work activities that are part of determining residual functional capacity.
The remaining factors mentioned by the ALJ to support his decision are the alleged increase in plaintiff's activities of daily living, the less frequent or more sporadic visits to the doctor, and the statement of Dr. Queenan. These items do not constitute "objective medical evidence" which, as stated in Shepherd, supra, is supposed to be the basis for finding an increase in RFC. Moreover, in the court's opinion these factors do not constitute substantial evidence in support of finding an increase in plaintiff's RFC. Once again, these items are not linked specifically to better performance of basic work activities such as standing, sitting, etc. Furthermore, taken individually, these factors are not adequate to persuade a reasonable mind that plaintiff's RFC has increased.
The court has reviewed the various accounts of plaintiff's activities of daily living that are included in the record. In some accounts, plaintiff cooks more meals per week or does more laundry per week than in other accounts. We do not find the increase to be terribly probative to the issues in this matter. Plaintiff's doctor visits may have declined. But, plaintiff has not been asked to explain this. Furthermore, it appears to the court that after 13 years of back trouble, various therapies, and many visits to the doctor, it is as reasonable to view the reduction in doctor's visits as evidence of resignation to the situation as it is to view it as evidence of medical improvement. Finally, Dr. Queenan's view on the ultimate issue of disability does not deserve controlling weight; he is not a treating physician in this matter. See 20 C.F.R. § 404.1427(d)(2) (only treating physician's opinions are given controlling weight and then only as to nature and severity of impairment and only when well-supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence). An opinion that a claimant is disabled (or not disabled) is not a "medical opinion" under Social Security regulations to be weighed in determining a claimant's ability to perform substantial gainful activity. 20 C.F.R. § 404.1527(e). Accordingly, no substantial weight can be attached to this broad opinion in deciding plaintiff's RFC.
In sum, the ALJ failed to compare many of the factors which allegedly demonstrated medical improvement to plaintiff's condition when she was determined to be disabled. In addition, the ALJ failed to explain how these factors resulted in an increased RFC by describing their impact upon basic work activities like sitting, standing, walking, lifting, carrying, pushing and pulling. Finally, the ALJ appeared to rely upon factors which did not constitute objective medical evidence or proper medical opinion and which would not amount to substantial evidence of medical improvement to a condition which would justify the termination of disability benefits.
Conclusion
The court concludes that defendant did not conduct the legally required analysis prior to terminating plaintiff's benefits. We do not reach any contention that substantial evidence does not support a termination of benefits. However, we reverse the decision to terminate benefits and remand to the defendant for further proceedings in accordance with this order and judgment.
IT IS SO ORDERED.