LAM v. APFEL

Full title: CUL LAM, Plaintiff v. KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY…

Court: United States District Court, N.D. Texas, Dallas Division

Date published: Apr 6, 2000

Civ. No. 3:99-CV-2203-D (N.D. Tex. Apr. 6, 2000)

Opinion

Civ. No. 3:99-CV-2203-D.

April 6, 2000.

MEMORANDUM OPINION

SIDNEY A. FITZWATER, District Judge.

Plaintiff Cul Lam ("Lam") brings this action pursuant to § 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), for judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for supplemental security income payments under title XVI of the Act.¹ The court affirms in part, and vacates and remands in part, the decision of the Commissioner.

1 Lam also seeks review of the denial of disability insurance benefits under title II of the Act. Compl. ¶ 1. Lam has not shown that he applied for the title II benefits that he now contends were denied and has not briefed this issue. This assertion appears to be a typographical error in the complaint and provides no basis for relief.

I

Lam, born December 22, 1933, applied on December 14, 1993 for supplemental security income payments, alleging that he has been unable to work since January 6, 1990 due to headaches, dizziness, high blood pressure, back pain, knee pain, and chest pain. Tr. 1, 30, 70. The Commissioner denied Lam's application after a hearing before an Administrative Law Judge ("ALJ"). Based on medical expert testimony and Lam's own testimony, the ALJ determined that Lam was capable of performing light work and retained the residual functional capacity ("RFC") to return to his past relevant work as a farmer. Tr. 14. The Appeals Council denied relief, Tr. 3-4, Tr. 210-11, and Lam sought judicial review in this court. The Commissioner moved to remand Lam's case for further administrative proceedings. Judge Solis remanded the case pursuant to the fourth sentence of § 405(g). Lam v. Commissioner, Civil Action No. 3:97-CV-1126-P (N.D. Tex. Oct. 23, 1997) (Solis, J.) (order). On remand, the ALJ determined, based on additional vocational expert ("VE") testimony, that Lam was capable of performing light work and that he retained the RFC to return to his past relevant work as a rice and vegetable farmer. Tr. 197. The Appeals Council denied relief and the ALJ's decision became the final decision of the Commissioner. Lam now seeks judicial review of the Commissioner's second denial of his claim, presenting the single issue whether the ALJ's decision that Lam is not disabled is supported by substantial evidence.

II

The court's review of the Commissioner's decision is limited to determining whether the decision is supported by substantial evidence and whether the proper legal standards were applied to evaluate the evidence. Ripley v. Chater, 67 F.3d 552, 555 (5^th Cir. 1995); Martinez v. Chater, 64 F.3d 172, 173 (5^th Cir. 1995) (per curiam). "The Commissioner's decision is granted great deference and will not be disturbed unless the reviewing court cannot find substantial evidence in the record to support the Commissioner's decision or finds that the Commissioner made an error of law." Leggett v. Chater, 67 F.3d 558, 564 (5^th Cir. 1995) (footnotes omitted).

"The court may not reweigh the evidence or try the issues de novo or substitute its judgment for that of the [Commissioner]." Kane v. Heckler

, 731 F.2d 1216, 1219 (5^th Cir. 1984). "If the Commissioner's findings are supported by substantial evidence, then the findings are conclusive and the Commissioner's decision must be affirmed." Martinez, 64 F.3d at 173. "Substantial evidence is such relevant evidence as a reasonable mind might accept to support a conclusion." Ripley, 67 F.3d at 555 (quoting Greenspan v. Shalala, 38 F.3d 232, 236 (5^th Cir. 1994)). "It is `more than a mere scintilla and less than a preponderance.'" Id. (quoting Spellman v. Shalala, 1 F.3d 357, 360 (5<sup>th</sup> Cir. 1993)). "To make a finding of `no substantial evidence,' [the court] must conclude that there is a `conspicuous absence of credible choices' or `no contrary medical evidence.'" Dellolio v. Heckler, 705 F.2d 123, 125 (5^th Cir. 1983) (citing Hemphill v. Weinberger, 483 F.2d 1137 (5^th Cir. 1973)). Even if the court should determine that the evidence preponderates in the claimant's favor, the court must still affirm the Commissioner's findings if there is substantial evidence to support these findings. See Carry v. Heckler, 750 F.2d 479, 482 (5^th Cir. 1985). The resolution of conflicting evidence is for the Commissioner rather than for this court. See Patton v. Schweiker, 697 F.2d 590, 592 (5^th Cir. 1983). To determine whether a claimant is disabled, the Commissioner uses a five-step sequential inquiry. Leggett, 67 F.3d at 563; Martinez, 64 F.3d at 173-74. The Commissioner must consider (1) whether the claimant is presently working; (2) whether the claimant's ability to work is significantly limited by a physical or mental impairment; (3) whether the claimant's impairment meets or equals an impairment listed in Appendix 1 to the regulations; (4) whether the impairment prevents the claimant from doing past relevant work; and (5) whether the claimant cannot presently perform relevant work that exists in significant numbers in the national economy. Leggett, 67 F.3d at 563 n. 2; Martinez, 64 F.3d at 173-74; 20 C.F.R. § 404.1520 (1999). Once the Commissioner demonstrates that other jobs are available to a claimant, the burden of proof shifts to the claimant to rebut this finding. Selders v. Sullivan, 914 F.2d 614, 618 (5^th Cir. 1990).

For purposes of social security determinations, "disability" means the inability to engage in substantial gainful activity because of any medically determinable physical or mental impairment that could be expected to last for at least 12 months. 42 U.S.C. § 423(d)(1)(A). To establish disability, the record must show that the limitations imposed by plaintiff's conditions prevent him from engaging in any substantial gainful activity. See Jones v. Heckler, 702 F.2d 616, 620 (5^th Cir. 1983). When determining the propriety of a decision of "not disabled," this court's function is to ascertain whether the record considered as a whole contains substantial evidence that supports the final decision of the Commissioner, as trier of fact. The court weighs four elements of proof to determine if 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) age, education, and work history. Martinez, 64 F.3d at 174 (citing Wren v. Sullivan, 925 F.2d 123, 126 (5^th Cir. 1991)). "The ALJ has a duty to develop the facts fully and fairly relating to an applicant's claim for disability benefits." Ripley, 67 F.3d at 557. If the ALJ does not fulfill this duty, the decision is not substantially justified. Id. Reversal of the ALJ's decision is appropriate, however, only if the applicant shows that he was prejudiced. Id.

III A

Lam contends the ALJ lacked substantial evidence for finding at step four that Lam could perform his past relevant work of farming, because the nonexertional physical demands of farming exceed the RFC that the ALJ found. He points out that the ALJ found that his past work required frequent bending and that he had only the RFC necessary to perform the full range of light work. Lam maintains that light work includes only occasional bending, and that frequent bending requires the ability to perform the full range of medium work. He contends that because he cannot bend frequently the ALJ erred by finding that he is able to perform his past relevant work as a farmer.²

2 Lam also argues that it was improper for the ALJ, in reaching her conclusions, to cite 20 C.F.R. § 416.967, because it does not include the postural factors of 20 C.F.R. § 416.945. The court will not overturn a procedurally imperfect administrative ruling unless the substantive rights of a party have been prejudiced. See Smith v. Chater, 962 F. Supp. 980, 984 (N.D. Tex. 1997) (Fitzwater, J.). Lam has failed to articulate how his substantive rights were affected by the ALJ's citation to 20 C.F.R. § 416.967 rather than to 20 C.F.R. § 416.945. Therefore, Lam's assertion is insufficient to disturb the ALJ's decision.

The Commissioner responds that the ALJ's finding that Lam was only able to perform the full range of light work does not preclude a finding that he could perform some of the requirements for medium work (here, that he can bend frequently). The Commissioner argues that even if there were such a limitation, Lam has failed to carry his burden of proof by adducing evidence that he cannot bend frequently. The Commissioner also maintains that there is substantial evidence to support the determination that Lam can perform his past relevant work.

B

The ALJ's assessment of RFC "must address both the remaining exertional and nonexertional capacities of the individual." Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8p, 1996 WL 374184, at *5 (S.S.A.). As to nonexertional activities, the ALJ must

consider all work-related limitations and restrictions that do not depend on an individual's physical strength; i.e., all physical limitations and restrictions that are not reflected in the seven strength demands, and mental limitations and restrictions. It assesses an individual's abilities to perform physical activities such as postural (e.g., stooping, climbing), manipulative (e.g., reaching, handling), visual (seeing), communicative (hearing, speaking), and mental (e.g., understanding and remembering instructions and responding appropriately to supervision). In addition to these activities, it also considers the ability to tolerate various environmental factors (e.g., tolerance of temperature extremes).

Id. at *6 In addition, the ALJ's assessment of RFC

must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations). The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.

Id. at *7.

Russell H. Wilson, M.D. ("Dr. Wilson") testified at Lam's hearing as an impartial medical expert. The ALJ never questioned Dr. Wilson about Lam's postural limitations. Tr. 202-04. After examining Dr. Wilson, the ALJ elicited testimony from Joyce Shoop, a VE, who stated that according to Lam's file, he had no postural, manipulative, visual, communicative, or environmental limitations. Tr. 207. The ALJ concluded in her RFC assessment that "[Lam] has no significant non-exertional limitations which narrow the range of work he can perform." Tr. 197. The ALJ did not cite any specific evidence for this conclusion. Id. The ALJ described Lam's lower back pain as "controlled with no more than over the counter medications." Tr. 195. Finally, the ALJ did include a narrative description of Lam's daily activities that was supportive of her conclusion that Lam did not suffer from nonexertional limitations. Tr. 196. Although the ALJ's decision is not well-developed, there is substantial evidence in the record to support the ALJ's conclusion,

Moreover, Lam failed to adduce any evidence that he is unable to bend frequently. The ALJ found that Lam's testimony concerning the level of his pain, shortness of breath, and headaches was not supported by objective medical evidence. Tr. 195-96. Credibility determinations are generally the province of the ALJ and are entitled to deference. See Carrier v. Sullivan, 944 F.2d 243, 247 (5^th Cir. 1991). The subjective complaints of a claimant must be corroborated by objective medical evidence that demonstrates the existence of the symptoms before a disability may be determined. See Wren, 925 F.2d at 129; 20 C.F.R. § 404.1528(a) (1999) ("[Claimant's] statements alone are not enough to establish that there is a physical or mental impairment."). The ALJ's "determination or decision [regarding credibility] must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight." Policy Interpretation Ruling Titles II and XVI, SSR 96-7p, 1996 WL 374186, at *2.

The ALJ provided specific reasons for her credibility determination. She noted that

[a]lthough the claimant has an underlying medical condition that could reasonably give rise to some pain, shortness of breath and headaches, the objective medical evidence of record does not support the level of the claimant's allegations.

* * *

[Dr. Wilson's] clinical notes show that when Mr. Lam takes his medication as prescribed he has an absence of shortness of breath and pain[.]

* * *

Also probative to the determination of the claimant's credibility are his daily activities. Significantly, Mr. Lam is the primary care giver for his four children when his wife is at work. He has reported that he performs household chores to include dusting and sweeping, cooks, and walks his children 100 meters to the bus stop. He is also able to care for his personal needs, reads, watches television and attends church. Such an extensive level of daily activities is not consistent with those of a disabled individual but are consistent with an individual who can perform the exertional demands of light work. . . . Moreover, the claimant has been prescribed no more than over the counter medications for the treatment of his pain and which have provided adequate relief without any reported side-effects.

Tr. 195-96. Lam has failed to direct the court to any other evidence to bolster his credibility. Absent such evidence, he has failed to carry his burden of proving he is disabled. See Vaughan v. Shalala, 58 F.3d 129, 132 (5^th Cir. 1995) (per curiam) (holding that claimant failed to meet her burden of proof under disability test where she offered no evidence that she was incapable of performing the types of work that the ALJ determined were available and that she was capable of performing). Therefore, the court affirms the ALJ's determination regarding Lam's nonexertional limitations.

IV

The court is unable to determine, however, whether the ALJ's assessment of Lam's exertional level is supported by substantial evidence. Based heavily on Dr. Wilson's testimony, the ALJ determined that Lam "retains the residual functional capacity to perform the exertional demands of light work." Tr. 197 (emphasis added). The ALJ also found that "[Lam] lacks the residual functional capacity to lift and carry more than 20 pounds." Tr. 198 (Finding No. 4). The ALJ also made a determination, however, that the court cannot reconcile with the findings concerning exertional limitations:

The vocational expert. . . . having reviewed the evidence of the case record, described the claimant's past employment as a rice and vegetable farmer as relevant work. She stated that in the United States such work is usually performed at the medium level of exertion and is skilled in nature. Inasmuch as the undersigned has determined that the claimant retains the residual functional capacity for a full range of light work, he is capable of performing the type of work he performed in the past.

Tr. 197 (emphasis added). Additionally, the VE testified that based on Lam's file, his past relevant work requires that he be able to "lift occasionally 50 pounds, frequently 25 which would put him into the medium category and therefore based on this, [he] could, should be able to do his previous work." Tr. 207 (emphasis added).

The ALJ must explain any material inconsistencies in the evidence. See SSR 96-8p, 1996 WL 374184, at *7. If the ALJ does not fulfill her duty to develop the evidence fully, the decision is not substantially justified. Ripley 67 F.3d at 557. Reversal of the ALJ's decision is appropriate, however, only if the applicant shows that he was prejudiced. Id.

The ALJ has not addressed the apparent contradictions between the medical expert's testimony and the VE's testimony regarding Lam's exertional capacity. The ALJ has not attempted to explain the basis for her conclusion that Lam could perform past relevant work that is usually performed at the medium exertional level. Nor has she elaborated on what testimony she relied upon in reaching this conclusion. Therefore, the court is unable to hold that the ALJ's finding is supported by substantial evidence. The court vacates the ALJ's decision in this respect and remands this matter to the Commissioner for further proceedings.

AFFIRMED in part; VACATED and REMANDED in part.