Opinion
CV-00-1037-HA.
June 29, 2001.
OPINION AND ORDER
INTRODUCTION
Plaintiff brings this action pursuant to the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his requests for disability insurance benefits under Title II of the Social Security Act and Supplemental Security Income disability benefits under Title XVI of the Social Security Act. For the reasons set forth below, this court finds that the decision of the Commissioner must be reversed and remanded for further consideration.
Larry G. Massanari became the Acting Commissioner of Social Security on March 29, 2001. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, Larry G. Massanari is therefore substituted for Acting Commissioner William A. Halter as the defendant in this case.
PROCEDURAL BACKGROUND
Plaintiff initially filed an application for benefits on April 14, 1992. The Commissioner denied this initial application and also denied reconsideration. Plaintiff did not request a hearing. Thereafter, on May 12, 1997, he filed the current application for benefits, alleging disability beginning July 5, 1987. His applications were denied initially and upon reconsideration. Plaintiff then requested a hearing before an administrative law judge ("ALJ"). The hearing was held on October 28, 1998, in Pendleton, Oregon. Plaintiff appeared with counsel. He testified, as did his wife, Wendy Long, and a vocational expert ("VE"). The ALJ considered the testimony and the evidence in the record and issued his decision on April 28, 1999. He found plaintiff not disabled because, on the date his insured status expired (June 30, 1991), he could perform work existing in significant numbers in the national economy. On March 9, 2000, the Appeals Council declined to review the ALJ's findings. Thus, the ALJ's decision is the final agency decision, subject to review by this court. 20 C.F.R. § 416.1481.
STANDARDS
The initial burden of proof rests upon the claimant to establish disability. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert denied, 517 U.S. 1122 (1996). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months. . . ." 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § §§ 404.1520, 416.920. First the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § §§ 404.1520(b), 416.920(b).
In step two the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.
In step three the Commissioner determines whether the impairment meets or equals "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Id; 20 C.F.R. § §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
In step four the Commissioner determines whether the claimant can still perform "past relevant work." 20 C.F.R. § §§ 404.1520(e), 416.920(e). If so, the claimant is not disabled. If the claimant cannot perform past relevant work, then the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § §§ 404.1520(e) (f), 416.920(e) (f). If the Commissioner meets this burden and proves that the claimant is able to perform other work which exists in the national economy, then the claimant is not disabled. 20 C.F.R. § §§ 404.1520(f), 416.920(f).
The Commissioner's decision denying benefits will be disturbed only if it is based on legal error or it is not supported by substantial evidence in the record. Flaten v. Secretary of Health Human Serv's., 44 F.3d 1453, 1457 (9th Cir. 1995). Substantial evidence is "more than a scintilla but less than a preponderance." Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997). "Substantial evidence is relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion." Flaten, 44 F.3d at 1457. The court must weigh "both the evidence that supports and detracts from the [Commissioner]'s conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
STATEMENT OF THE FACTS
I. Witness Testimony A. Plaintiff
Plaintiff was unemployed at the time of the hearing. Tr. 38. He possesses a high school education and two or three years of college. Tr. 30. He has worked as a manager for a hotel, "a lounge manager and assistant hotel manager". Tr. 43. In 1972, plaintiff suffered an injury while playing football at college, and needed surgery. Tr. 32. In 1985, plaintiff had a "three level laminectomy," but had a good recovery following that surgery. In 1987, he suffered a "crippling injury" when he was lifting a 300-pound table at work. Tr. 32. Following this injury, plaintiff "had a triple laminectomy done in my lower back." Tr. 32. In 1988, plaintiff had a "three-level fusion done on the * * * same vertebrae" due to continuing pain and instability. Tr. 32-33. However, plaintiff then experienced increased pain and continuing numbness. Tr. 33. In 1994, plaintiff had another surgery involving the fusion of a "false joint down lower in my hip." Tr. 33.
Citations are to the page(s) indicated in the official transcript of record filed with the Commissioner's Answer on December 28, 2000 (docket #11).
In 1998, plaintiff had another operation to stabilize the vertebrae. Tr. 34-35. Following that operation, he experienced complications from a staph infection. Tr. 35-36. Plaintiff testified that he suffers from degenerative disc disease. Tr. 36. He also noted that in 1987 he told his doctors that his hands repeatedly became numb, and was advised it was because he spent so much time in bed reading, leaning on one side or the other. Tr. 36-37. Because it was not a "huge problem at that time," plaintiff ignored it. Tr. 37.
In 1993, plaintiff began working part-time at a golf course a "couple of miles" from his house, doing small engine maintenance. Tr. 38. Plaintiff knew the owner of the golf course, and the owner allowed plaintiff to determine his own schedule. This allowed plaintiff to work one or two hours and then go home to lie down. Tr. 38. Plaintiff has "never worked full-time since 1987, when I was injured." Tr. 37. The hand problem became more significant during this part-time employment. Plaintiff's hands would become numb after 20 minutes. Tr. 37. This worsened to the point that by 1995 he could not use his hands for more than five to ten minutes at a time. Tr. 37.
He left the golf course job during 1994 for one of the surgeries noted above. Tr. 38. In 1995, he returned to the golf course for a short period of time, and then stopped working "for the last time" in 1995. Tr. 37-38. In 1995 plaintiff worked as little as two hours a day up to six hours a day, but never more than two hours continuously. Tr. 38. Plaintiff testified to a number of physical problems that affect his ability to work. He reported that every day he lives with constant pain in his back, hands and elbows. He noted that he has arthritis in his hands and elbows, and suffers from carpal tunnel syndrome. He testified that he cannot lift a telephone to talk for more than a few minutes, and that he cannot grasp with his hands because the hands become numb. Plaintiff reported multiple surgeries on his knees and that he cannot squat or stand for more than 20 minutes. He designates his "major problem" as his back, in which he has constant pain which radiates down both legs. Tr. 39.
At the time of the hearing, plaintiff was taking "Vicoprofen" eight to ten times a day, "baclofen, a muscle relaxant" eight times each day, Phenergan, which he takes to help prolong sleep, and Xanax to help him sleep and for mild depression. Tr. 42. Plaintiff noted that his pain forces him to take the medications, and that the "drugs allow me to live." Tr. 50.
Through questioning from the ALJ which focused on plaintiff's condition on or before June 30, 1991 (the date of expiration of plaintiff's insured status), plaintiff testified that he first complained about numbness in his hands in the hospital in 1987. Tr. 55. Plaintiff noted that since his injury in 1987 he has been unable to work, and that against doctor's advice he tried to work part-time at the golf course in 1993. Tr. 55. Plaintiff's ability to sit in 1991 was "not much better than it is today," and his ability to stand was also poor. Tr. 55. Plaintiff described his attempts to address his pain through various medications and counseling, and undergoing a number of surgeries. Tr. 57. Plaintiff opined that he was unemployable in 1991 and has been taking narcotic medications since 1987 "just to stay sane" and to be able to function at the level that he functions today. Tr. 58.
Referring to a medical report prepared by Dr. Raaf on October 7, 1987 (Tr. 575-580), plaintiff testified that the symptoms noted in that report were accurate in 1987, and remained accurate as of the time of the hearing. Raaf's report noted pain in the low back, both thighs becoming numb when standing, pain radiating in the back and lower right side of his neck, and numbness on the outer side of both forearms and the little finger of both hands. Tr. 61. Plaintiff confirmed Raaf's report. Tr. 61-62. Plaintiff noted that he cannot stand more than 15 or 20 minutes now. Tr. 35. During 1987 to 1991 plaintiff considered lighter work but the problem was he could not then sit, stand or walk for extended periods of time. Additionally, because of the medications he took, he was unemployable in any industry in which he had ever worked. Tr. 58. Concerning his limitations on his ability to concentrate, plaintiff testified that his condition has destroyed his ability to concentrate, and that he cannot not spend more than 10 or 15 minutes doing anything because of his pain. Tr. 64.
Plaintiff testified that since 1987, on a normal day, he awakes between 6:00 and 8:00 a.m. and has a light breakfast, takes some medication and lies down for about an hour to make sure the medication is working. Tr. 64, 46. He then takes his dogs for a walk and puts wood in the woodstove, spending about one to one and one-half hours. Tr. 46. Plaintiff testified that he requires a brace when walking the dogs. Tr. 40. He then goes to bed for an hour or two and reads, and then performs light housework such as vacuuming and putting dishes in the dishwasher. Occasionally he goes to town for groceries. Plaintiff is forced to break his activities into hourly periods, and then requires a break for at least a couple of hours. Tr. 46. Plaintiff's wife or a friend splits wood for him. Tr. 47. Plaintiff is able to drive only a distance of about 10 miles without major discomfort. His ability to drive is also impacted by the narcotic medications. Tr. 48-49.
B. Wendy Long
Wendy Long testified that in 1991 plaintiff was able to do some chores, such as putting dishes in a dishwasher or putting clothes in the washer and dryer, but that she has to do all the yard work and other chores. Tr. 66-67. During 1991 plaintiff spent at least 75 to 80 percent of his day in a hospital bed they had rented. Tr. 68. She testified that she is a registered nurse and that in 1991 plaintiff was taking either "Percocet or Vicodin type narcotic pain medication," skeletal muscle relaxants, and different antidepressants to help with depression and nerve root conduction down his legs, hands and arms. Tr. 68-69. She also testified that plaintiff's pain condition has remained essentially unchanged since 1991. Tr. 69. She further noted that he has complained of numbness in his hands since the injury in 1987. Tr. 70.
II. Medical Evidence
Generally, plaintiff's physical difficulties stem from back injuries beginning with an injury in 1972, and an on-the-job injury to his back on July 5, 1987, when he was lifting a heavy table. An MRI in August of 1987 revealed a significant disc protrusion at the L3-4 and L4-5 levels with the most severe degree of protrusion seen at the L3-4 level. John Misko, M.D., noted that this "appears to cause bilateral nerve root impingement, right greater than left." Tr. 237. Dr. Misko also noted "grade 1 anterior spondylolisthesis of L5 on S1 with resultant narrowing of the neural foramina bilaterally at L5-S1." Tr. 237. Authorization for surgery was requested by Dr. Misko in August, 1987, but authorization was not received from the insurance company until October, 1987. Tr. 213. On October 12, 1987, Dr. Misko noted "marked disc protrusion at 3-4 and a lesser one at 4-5. He is admitted to the hospital for laminectomy and exploration and disc protrusion removal." Tr. 233. Plaintiff underwent a laminectomy and partial disc removal on October 13, 1987. Tr. 225-226.
Prior to the surgery in October of 1987, plaintiff had two laminectomies, one in 1972 and the second in July, 1986. Tr. 219, 356. Dr. Misko noted on January 6, 1988 that plaintiff had "done quite poorly" after the third laminectomy and continued to have pain and might need stabilization. Tr. 219. On February 26, 1988, Dr. Misko noted that plaintiff has complained of persistent pain requiring analgesic medication. Tr. 213. On April 21, 1988, three medical doctors examined plaintiff. In their report they noted that for the last month, following a two-day admission to a hospital for traction and analgesics, plaintiff stopped taking analgesic medications. Tr. 353, 355.
On October 5, 1988, a chart note states that plaintiff had experienced a marked, persistent increase in pain, and an MRI revealed a disc protrusion at L3-4 with degeneration at L4-5 and spondylolisthesis and degeneration at L5-S1. Following a "three level Steffi plate fusion" in December, 1988, plaintiff's condition deteriorated, with "daily unremitting back pain." Tr. 258. On June 7, 1990, Frederick Tiley, M.D., noted "arachnoiditis and perineural scarring" and pseudarthrosis at L5-S1. Tr. 259. Dr. Tiley, after noting the previous four surgical "failure[s]" described plaintiff's condition as "a very difficult situation." Tr. 259-60.
III. Vocational Expert Testimony
The VE classified plaintiff's past relevant work as "Manager of liquor establishments, light, SVP 6, skilled. Janitor, medium, SVP 3, semi-skilled. Electric golf cart repairer, medium, 5, skilled * * * [and] Small engine repair, medium, 6, skilled." Tr. 72-73. The VE noted that as described by plaintiff, the golf course jobs (golf cart and small engine repair) would be classified probably more light than sedentary. Tr. 73. The VE then considered a hypothetical worker of "similar age, education, work experience" as plaintiff, who should not do any repetitive lifting, bending, stooping, or twisting, without prolonged sitting, longer than 30 minutes at a time. These limitations were taken by the ALJ from a letter from John Scoltock, M.D. Tr. 73, 362. The VE concluded that three jobs might qualify under these limitations (1) Order clerk/food and beverage (sedentary, SVP2, unskilled, that allows a person to sit or stand, generally); (2) surveillance system monitor (sedentary, SVP2, unskilled, with "sit or stand options"; and (3) telephone solicitor (sedentary, SVP2, and that can be done sit or stand). Tr. 73-74.
In a second, two-part hypothetical, the VE considered limitations drawn from a letter from Eric Sandefur, an orthopedic surgeon. Tr. 74, 489. The hypothetical again assumed an individual of "similar age, education, and work experience" as plaintiff, with "difficulty standing or walking for any period of time. Must alternate sitting and standing, being able to sit or stand for only one half hour at a time, and then needing the ability to change position. His walking ability is limited to less than one block. He should not carry objects greater than 20 pounds, except * * * for very short distances. * * * He can occasionally lift objects greater than 40 pounds. He should not do repetitive bending, lifting, twisting, squatting, crawling, kneeling or climbing ladders." Tr. 74-75. The VE concluded that plaintiff's work in electrical golf cart repair or small engine repair would fall within these limitations, as would the three jobs available in the first hypothetical. Tr. 75.
The ALJ then added an additional limitation that a change in position might require lying down. The VE concluded that the only employment that could "probably be performed lying down" would be the telephone solicitor position in an at-home job. The VE concluded that lying down would preclude the other jobs. Tr. 75.
Finally, the ALJ posed a third hypothetical assuming similar age, education and work experience as plaintiff, restricted to sedentary work, with a sit or stand option for the relief of pain, the ability to sit as long as 30 minutes at a time, and with no repetitive or prolonged twisting, bending, or stooping. Additional limitations of "simple work" were added, due to pain and a deficit of concentration. Tr. 75-76. The VE responded there would be no work for such an individual in the national economy due to the deficit of concentration. Tr. 76.
The transcript of the next question asked of the VE is unclear. The transcription of the hearing indicates the ALJ asking the VE "Would they require, these three jobs that you indicated, at least have the concentration abilities?" Tr. 76 (emphasis supplied). The VE responded affirmatively to the ALJ's question. Defendant asserts that the question should have been transcribed as follows "Would they require, these three jobs that you indicated, at least average concentration abilities?"
Plaintiff's attorney asked the VE how the order clerk, surveillance system monitor and telephone solicitor jobs would be impacted by numbness in the forearms and arms and hands. The VE responded that telephone solicitor could be done by headset or a voice activated telephone, or with a phone cradle, and the need to use hands or forearms in that kind of job would not be necessary, generally speaking. The VE noted that an order clerk may have to punch up an order on a computer or use a telephone or other device to communicate the orders, so there would not be a lot of repetitive use of hands or forearms, and the same would be true of the surveillance system monitor. Tr. 77. Plaintiff's attorney asked if numbness when standing more than 15 to 20 minutes and the requirement of lying down for 5 to 10 minutes, coupled with the ingestion of narcotics to control pain, would exclude all three of the jobs identified by the VE. The VE replied that these factors would exclude all three jobs. Tr. 78.
ALJ'S DECISION
The ALJ first determined that plaintiff had not engaged in any substantial gainful work activity since the disability onset date of July 5, 1987. Pursuant to the second step of the sequential evaluation process, the ALJ then determined that the medical record evidences a combination of "severe" impairments. Specifically, he determined that plaintiff, at the time of the expiration of his insured status, suffered from back and leg pain, and that this constituted a severe impairment.
At the third step in the evaluation process, the ALJ determined that plaintiff's impairments, alone or in combination, do not meet or equal the requirements set forth in the Listing of Impairments at 20 C.F.R. § Part 404, Subpart P, Appendix 1 ("Listings"). The ALJ then proceeded to the fourth step in the evaluation process and discussed plaintiff's residual functional capacity ("RFC"), which describes the range of work activities that a claimant can perform despite his impairments. He determined that plaintiff's statements concerning his impairments and their impact on his ability to work were not credible, in light of the descriptions of his activities and lifestyle contained in the record. Tr. 19. He also determined that on the date his insured status expired he retained the residual functional capacity to perform the exertional demands of less than the full range of sedentary work. The ALJ found plaintiff's capacity for sedentary work was limited by a need to alternate between sitting and standing due to an inability to sit longer than 30 minutes at a time. The ALJ further found that plaintiff was unable to perform repetitive or prolonged twisting, bending or stooping, and that due to pain he was unable to perform activities requiring a high level of concentration but retained an average ability to concentrate.
Based on this RFC, the ALJ proceeded to step five of the evaluation process and determined with the assistance of the VE that at the time his insured status expired, plaintiff could not return to any of his past relevant work. Finally, the ALJ found, relying on the testimony of the VE, that there are three occupations which exist in significant numbers in the national economy that plaintiff was capable of performing on the date his insured status expired. Specifically, the ALJ found that the VE's testimony showed that plaintiff could perform the jobs of order clerk, surveillance system monitor and telephone solicitor. Accordingly, the ALJ found plaintiff not disabled.
DISCUSSION
Plaintiff argues that the ALJ committed reversible error by (1) failing to find plaintiff disabled based upon the ALJ's findings; (2) finding that plaintiff is vocationally qualified to perform the occupation of telephone solicitor; and (3) failing to properly utilize the VE as required under social security administration rulings.
I. ALJ's findings establishing disability
Plaintiff's argument concerning the ALJ's findings is that in light of the residual functional capacity found by the ALJ, which included only average concentration abilities, the testimony of the VE established disability because all three of the occupations require greater than average concentration abilities.
The ALJ found that plaintiff was limited to less than the full range of sedentary work, and noted the plaintiff could carry ten pounds, needed to alternate between sitting and standing due to an inability to sit for more than 30 minutes, and was unable to perform repetitive or prolonged twisting, bending or stooping. The ALJ further found that, due to pain, plaintiff was unable to perform activities requiring a high level of concentration but retained an average ability to concentrate. Plaintiff's first argument concerning this issue assumes that the transcript of the hearing before the ALJ correctly reported that the question asked shortly after the third hypothetical posed by the ALJ was: "Would they require, these three jobs that you indicated, at least have the concentration abilities?" Tr. 76 (emphasis supplied). Plaintiff thus assumes that the foregoing question added nothing to the analysis, and assumes that the third hypothetical stands as asked; i.e., that "because of pain, and a deficit of concentration, they should be restricted to simple work, and nothing that would be complex." Tr. 76. Plaintiff then concludes that because the VE concluded there would be no occupations available for such an individual, this court must find plaintiff disabled under the ALJ's own findings.
Defendant asserts that the question asked by the ALJ following the third hypothetical should have been transcribed as follows "Would they require, these three jobs that you indicated, at least average concentration abilities?" Plaintiff responds that even assuming that the defendant's speculation of the proper transcription is correct, the VE still testified that the three occupations identified by the VE require "at least average concentration abilities." As noted above, the VE answered the question affirmatively, whatever the correct transcription. The ALJ did not ask the VE any additional questions concerning the concentration abilities required in the three identified occupations.
Based upon the testimony of the VE, and due to the disputed question, the court concludes that record is unclear about whether the three occupations identified by the VE all require, at a minimum, average concentration abilities. The VE clearly testified that if a hypothetical worker with all of the other restrictions identified in the third hypothetical posed by the ALJ were able only to perform simple work, there would be no occupations available in the national economy. However, depending upon the correct transcription, the record may or may not establish that the three occupations identified by the VE require, at a minimum, average concentration abilities. The court is not prepared to assume the correctness of the transcription which appears in this record, but is also not prepared to accept defendant's guess as to the correct transcription. The court also agrees with plaintiff that regardless of defendant's interpretation, plaintiff does not necessarily meet the requirements of any of the three occupations identified by the VE in light of the ALJ's findings. The court concludes that remand for further proceedings is appropriate.
II. Telephone solicitor classification
Plaintiff also argues that the ALJ improperly found plaintiff capable of the occupation of telephone solicitor, due to a discrepancy between the VE's classification and the Dictionary of Occupational Titles (DOT). Were this the only issue raised by plaintiff, it might be considered moot since two other occupations were identified by the ALJ after considering the VE's testimony. See Brawner v. Secretary of Health Human Servs., 839 F.2d 432, 434 (9th Cir. 1988). However, in light of the court's conclusion that this case must be remanded for further proceedings, the court will assume that this issue will be addressed upon remand.
III. Improper utilization of VE
Plaintiff also argues that under Social Security Ruling ("SSR") 96-9p, a finding of disability is required because of significant erosion of the sedentary occupation classification due to plaintiff's inability to perform repetitive or prolonged twisting, bending or stooping, and because plaintiff must alternate between sitting and standing due to an inability to sit for more than 30 minutes. However, SSR 96-9p does not mandate a finding of disability. Instead, the ruling provides that an ALJ should consult a VE when the claimant is limited by an inability to stoop, and the ruling states that consulting with a VE may be helpful when a claimant must alternate between sitting and standing. Plaintiff is limited by an inability to repetitively bend or stoop and the inability to sit for more than 30 minutes. SSR 96-9p provides that when the extent of erosion of the unskilled sedentary occupational base is unclear, the ALJ may consult with a VE. That is precisely what the ALJ in this case did, using the grids as a framework. SSR 96-9p did not mandate a finding of disability in this case. See generally Moore v. Apfel, 216 F.3d 864, 870 (9th Cir. 2000) (when claimant suffers from exertional and nonexertional limitations, the grids are only a framework and a VE must be consulted).
IV. Remand vs. award of benefits
This court has discretion to remand a case either for additional evidence and findings or to award benefits. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). An award of benefits may be directed where the record has been fully developed and where further administrative proceedings would serve no useful purpose. Id. In this case, the VE's testimony and the ALJ's findings concerning the concentration abilities required in the three occupations identified by the VE, although vague and not discernible on the record before the court, do not establish that a finding of disability is clearly required. Therefore, the court finds that remand for further proceedings is appropriate.
On this point, this case is somewhat similar to the first remand in Moore v. Apfel, 216 F.3d 864, 866 (9th Cir. 2000), where the court noted that an earlier remand occurred because of the discrepancy between the ALJ's finding that the claimant could only sit for "four to six" hours, and the ALJ's question to the VE which assumed the ability to sit for six hours.
ORDER
For the reasons set forth above, the Commissioner's decision regarding plaintiff Michael W. Long's application for benefits is reversed and remanded for further proceedings.
IT IS SO ORDERED.