Opinion
CIVIL ACTION NO. 01-5965.
January 29, 2003
REPORT AND RECOMMENDATION
Plaintiff, Frank LaMacchia, brought this action under 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security (Commissioner) denying plaintiff's claim for disability insurance benefits (DIB) and supplemental security income (SSI) under Titles II and XVI of the Social Security Act (Act). The parties have filed cross-motions for summary judgment. For the reasons which follow, it is recommended that both motions be denied and the case remanded to the Commissioner.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff is a forty-nine year-old male born on October 1, 1953 (Tr. 87). He has only a marginal education in Italy and is literate in English (Tr. 27-28). He has past work experience as a longshoreman and dock worker, but hasn't worked since 1991 when he was laid-off (Tr. 27-28). Disability is alleged as of January 1, 1994 due to neck and back pain, and depression (Tr. 88-97).
Plaintiff's application for DIB and SSI was denied both initially and upon reconsideration (Tr. 73-85). He then requested a hearing before an Administrative Law Judge (ALJ). A hearing was held on September 10, 1999, at which, plaintiff, represented by counsel, testified along with a vocational expert (VE) (Tr. 24-69). In a decision rendered September 24, 1999, the ALJ determined that the plaintiff has "severe back problems as well as nonsevere depression and stuttering," which prevent him from performing his past work. The ALJ, however, further determined that plaintiff retains the residual functional capacity to do limited light work. Thus, plaintiff was determined not entitled to benefits (Tr. 15-20).
The ALJ's findings became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on October 26, 2001 (Tr. 4-5). Presently, plaintiff has appealed that decision to this court.
JUDICIAL REVIEW
The role of this court, on judicial review, is to determine whether the Commissioner's decision is supported by substantial evidence. 42 U.S.C. § 405(g); Pierce v. Underwood, 587 U.S. 552 (1988). "Substantial evidence" is not "a large or significant amount of evidence but rather such relevant evidence as a reasonable mind might accept to support a conclusion." Id. at 664-65. "The Court is bound by the ALJ's findings of fact if they are supported by substantial evidence in the record." Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999).
To establish a disability under the Social Security Act, a claimant must demonstrate that there is some "medically determinable basis for an impairment that prevents him from engaging in any `substantial gainful activity' for a statutory twelve-month period." Stunkard v. Secretary of Health and Human Services, 841 F.2d 57 (3d Cir. 1988), quoting Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987); 42 U.S.C. § 423(d)(1) (1982). A claimant can establish such a disability in either of two (2) ways: (1) by producing medical evidence that one is disabled per se as a result of meeting or equaling certain listed impairments set forth in 20 C.F.R. Regulations No. 4, Subpart Plaintiff, Appendix 1 (1987); see Heckler v. Campbell, 461 U.S. 458 (1987); Stunkard v. Secretary of Health and Human Services, 841 F.2d at 59; Kangas v. Bowen, 823 F.2d at 777; or (2) by demonstrating an impairment of such severity as to be unable to engage in "any kind of substantial gainful work which exists in the national economy." Heckler v. Campbell, 461 U.S. at 461; 42 U.S.C. § 423(d)(2)(A).
This method of proving disability requires that the claimant first show that he/she is unable to return to his/her former work due to a physical or mental impairment. Once a claimant has demonstrated that he/she is unable to perform his/her former work, the burden shifts to the Commissioner to prove that there is some other kind of substantial gainful employment he/she is able to perform, taking into consideration the claimant's physical ability, age, education and work experience. See Kangas v. Bowen, supra; Rossi v. Califano, 602 F.2d 55, 57 (3d Cir. 1979); 42 U.S.C. § 423(d)(2)(A).
This case was decided under the medical-vocational regulations which require a five-step sequential evaluation of disability claims. See generally, Heckler v. Campbell, supra; Santise v. Schweiker, 676 F.2d 925 (3d Cir. 1982). The sequential evaluation considers in turn current work activity, the severity of impairments, the ability to perform past work and vocational factors. 20 C.F.R. § 404.1520 and 416.920.
In this case, the Commissioner reached the fifth step of the evaluation and determined that plaintiff was capable of performing limited light work.
MEDICAL HISTORY
The relevant evidence in this case consists of medical reports and testimony which are summarized as follows:
Orthopedic surgeon, Dr. Phillip Spinuzza, examined plaintiff on April 24, 1995. He reported that an examination of the thoracolumbar spine revealed "local lumbosacral tenderness, mild myospasm and modest restriction of motion of both forward flexion and extension. There is mild tenderness in the left sciatic notch." He added that "neurologic examination reveals the deep tendon reflexes to be intact and equal bilaterally. Manual motor testing reveals no motor deficits, no gross sensory deficits, no pathologic reflex." Sciatic tension sign was positive on the left for pain radiating into the calf. Dr. Spinuzza's impression was lumbar spondylosis, and lumbar radiculopathy. He recommended that plaintiff get an MRI of the lumbar spine (Tr. 100-101).
Spondylosis — general term for degenerative spinal changes due to osteoarthritis. Dorland's Illustrated Medical Dictionary, Twenty-ninth Edition, 2000, p. 1684.
Plaintiff had an MRI of the lumbar spine on May 12, 1995. Eric Shreck, M.D., stated that there "is a large posterior herniation of the L5-S1 disc, which extends posteriorly both centrally and somewhat to the left of midline. It moderately impresses upon the ventral aspect of the thecal sac and significantly displaces the left S1 nerve root posteriorly." No other herniations were found, and there was no evidence of spinal stenosis (Tr. 102).
On May 30, 1995, plaintiff had nerve conduction studies performed on his lower extremities. Dr. James Bonner reported that the results were "consistent with a moderate left S1 radiculopathy." He recommended epidural steroids, and if not of benefit, traction, and then surgical intervention (Tr. 103-104).
On March 11, 1996, plaintiff was evaluated by Robert Naseef, Ph.D., at the request of the Pennsylvania Bureau of Disability Determination. Dr. Naseef noted that plaintiff has no history of any mental or emotional problems. He found plaintiff's mood to be "rather flat," continuity of thought to be goal-directed, logical, and concrete. There were no delusions in thought processes, and his judgment was intact. Plaintiff was diagnosed with "dysthymia related to physical condition," and given a prognosis of "fair."
Dysthymic — a mood disorder characterized by depressed feeling (sad, blue, low), loss of interest or pleasure in one's usual activities, and by at least some of the following: altered appetite, disturbed sleep patterns, lack of energy, low self-esteem, poor concentration or decision-making skills, and feelings of hopelessness. Symptoms have persisted for more than two years but are not severe enough to meet the criteria for major depressive disorder. Dorland's at 529.
Regarding activities of daily living, Dr. Naseef opined that plaintiff is able to clean and shop for himself. He lives with his mother, but is able to pay bills and maintain a residence. As to social functioning, he is able to initiate contact with people, but is limited by his language problems. He has a grasp of appropriate social behavior, can follow directions, and has no difficulty with persons in authority. Plaintiff has no history of any altercations, firings, or any other incidents. Addressing concentration and task persistence, plaintiff told Dr. Naseef that he had difficulty completing tasks, working in a routine, and adapting to stressful situations because of pain (Tr. 117-122).
The record also contains handwritten office notes from Dr. Julius Mingroni from January 31, 1997 through June 22, 1999. These notes indicate that plaintiff was treated for back pain, depression, and anxiety, but they are, for the most part, illegible (Tr. 136-140).
A vocational expert (VE) also testified at the hearing. The ALJ asked the VE to consider an individual with plaintiff's vocational profile who could perform light work, but due to pain, could not tolerate high levels of stress or maintain a high degree of concentration. The VE responded that such an individual could perform a significant number of jobs in the national economy such as janitor, hand packer, and assembler. The ALJ also asked the VE to assume that the same individual was restricted to sedentary work. The VE answered that there were a significant number of unskilled sedentary jobs that such a person could do such as assembler, inspector or checker, and laborer. The VE added that all of these jobs could be performed with a sit or stand option (Tr. 56-58).
DISCUSSION
The Commissioner's findings must be affirmed if they are supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales,supra at 401. The role of this court is to determine whether there is substantial evidence to support the Commissioner's decision. Doak v. Heckler, supra; Newhouse v. Heckler, supra.
In coming to a decision, it is the ALJ's responsibility to resolve conflicts in the evidence and to determine credibility and the relative weights to be given to the evidence. Richardson v. Perales, supra; 659 F.3d 1071 (3d Cir. 1981).
In this case, the ALJ found that the medical evidence establishes that plaintiff has "severe back problems as well as nonsevere depression and stuttering" which prevent him doing his past work. The ALJ, however, further determined that plaintiff retains the residual functional capacity to perform light work except for lifting and carrying more than twenty pounds at a time or more than ten pounds frequently, tasks requiring a high degree of concentration, and stressful situations (Tr. 19-20). Plaintiff was, thus, found not to be entitled to benefits under the Act (Tr. 19-20). After a review of the record, this court finds that the ALJ's decision is not supported by substantial evidence and the matter should be remanded to the Commissioner for the reasons stated below.
Light work is defined as:
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. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.20 C.F.R. § 404.1567(b).
Plaintiff asserts that the ALJ erred under Burnett v. Apfel, 220 F.3d 112 (3d Cir. 2000) in failing to discuss why he did not meet a listed impairment at step three in the five-step evaluation. In Burnett, the ALJ, in addressing the claimant's impairment at step three, stated that "[although [claimant] has established that she suffers from a severe musculoskeletal [impairment], said impairment failed to equal the level of severity of any disabling condition contained in Appendix 1. . . ."Id. at 119. The court held that because the ALJ's decision was so devoid of evidentiary support for the conclusion reached, it was "hopelessly inadequate" and "beyond meaningful judicial review." Id. at 119-120. The court remanded the case with instructions for the ALJ to more fully develop the record, "identify the relevant listed impairment(s)," explain his findings, and to make explicit "whether and why" the claimant's impairments were "not equivalent in severity to one of the listed impairments." Id. at 120; see also Kish v. Massanari, 2001 WL 1287459 (E.D.Pa.).
In this matter, in fairness to the ALJ, his opinion was rendered prior to the Burnett decision. However, the instant case is very similar toBurnett. Here, the ALJ also merely stated in his decision that "I find that claimant has a back impairment which is severe but does not meet or equal in severity the requirements of Appendix 1" (Tr. 16).
Like Burnett, there is evidence of record, here, that indicates that plaintiff's back condition may meet Section (C) of the listing for Disorders of the Spine, 12.05. Such must be considered and discussed under this regulation by the ALJ. An MRI of plaintiff's lumbar spine in May 1995 revealed a "large posterior herniation of the L5-S1 disc, which extends posteriorly both centrally and somewhat to the left of midline. It moderately impresses upon the ventral aspect of the thecal sac and significantly displaces the left S1 nerve root posteriorly" (Tr. 102). Also, in May 1995, Dr. James Bonner reported the results of nerve conduction studies as "consistent with a moderate left S1 radiculopathy." He recommended surgery if epidural steroids and traction failed to give relief (Tr. 103-104). In addition, although most of his office notes are illegible, Dr. Mingroni treated plaintiff for back pain for several years from January 1997 through 1999 (Tr. 136-140).
"C. Other vertebrogenic disorders (e.g, herniated nucleus pulposus, spinal stenosis) with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2:
1. Pain, muscle spasm, and significant limitation of motion in the spine; and
2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.
20 C.F.R. Pt. 404, Subpt. Plaintiff, App.1.
Thus, this matter should be remanded for the same reasons as Bonner. The ALJ's decision is entirely devoid of any supporting evidence in his decision as to plaintiff's back condition not meeting a listing. Likewise, it should also be remanded for the ALJ to identify the listed impairment he considered, to explain his findings, and give reasons why plaintiff's back impairment did or did not meet the relevant listing.
It must also be noted that plaintiff never had a consultative examination conducted for his back condition. Accordingly, it is recommended, upon remand, that the plaintiff be given such an examination specifically addressing the issue of whether this condition meets a listed impairment, as well as any other limitations it imposes.
Such an examination would not be beneficial for the evaluation of plaintiff's DIB claim since his eligibility for these benefits expired on December 31, 1996, however, it would be relevant for his SSI claim.
Furthermore, on remand, the ALJ must also reconsider the issue of the severity of plaintiff's depression at step two of the five-step evaluation. Step two is known as the "severity regulation" and focuses on whether the claimant is suffering from a severe impairment. 20 C.F.R. § 404.1520(c). An impairment is severe if it is "of magnitude sufficient to limit significantly the individual's ability to do basic work activities." Santise v. Schweiker, 676 F.2d 925, 927 (3d Cir. 1982) (quoting 20 C.F.R. § 404.1520(c)).
Basic work activities are defined in the regulations as "the abilities and aptitudes necessary to do most jobs." Examples include: "(1) [p]hysical functions such as walking, standing, lifting, pulling, reaching, carrying, or handling; (2) [c]apacities for seeing, hearing, and speaking; (3) [u]nderstanding, carrying out, and remembering simple instructions; (4) [u]se of judgment; (5) [r]esponding appropriately to supervision, co-workers and usual work situations; and (6) [d]ealing with changes in a routine work setting" 20 C.F.R. § 404-1521(b)(1)-(6).
A non-severe impairment is a "slight abnormality" which has a minimal effect on the individual such that it would not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience. Bowen v. Yuckert, 482 U.S. 137, 149-50 (1987).
Here, the ALJ needs to reconsider the question of "severity" of plaintiff's depression. A reviewing court may remand where relevant, probative, and available evidence was not explicitly weighed in deciding plaintiff's claim. Dobrowolsky v. Califano, supra at 407.
The evidence indicates that plaintiff's depression may be "severe" under the above regulations and case law. The agency's own physician, Dr. Naseef, diagnosed plaintiff with "dysthymia related to a physical condition." He added that plaintiff had. difficulty completing tasks and working in a routine (Tr. 117-122). In addition, plaintiff's treating physician, Dr. Mingroni, treated him for depression from January 1997 through June 1999 (Tr. 136-140).
On remand, the ALJ must reconsider whether this impairment causes more than "slight abnormalities" which have more than a "minimal effect" upon plaintiff's ability to work. Bowen v. Yuckert, supra. If it does, the ALJ must move past step two of the evaluation with regard to this condition.
Therefore, the court makes the following:
RECOMMENDATION
AND NOW, this 29th day of January, 2003,
IT IS RESPECTFULLY RECOMMENDED that the Cross-Motions for Summary Judgment be DENIED and the matter REMANDED to the Commissioner of the Social Security Administration.
ORDER
AND NOW, this 29th day of January, 2003, upon consideration of the parties' cross-motions for summary judgment, and after careful review of the Report and Recommendation of United States Magistrate Judge Linda K. Caracappa. IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The Cross-Motions for Summary Judgement are DENIED.
3. The case is REMANDED in accordance with the fourth sentence of 42 U.S.C. § 405(g) to the Commissioner of the Social Security Administration for proceedings consistent with the Report and Recommendation of United States Magistrate Linda K. Caracappa.
It is so ORDERED.
BY THE COURT: