Opinion
CA 00-0821-BH-C
May 23, 2001
REPORT AND RECOMMENDATION
Plaintiff brings this action pursuant to 42 U.S.C. § 405 (g) and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security denying his claims for disability insurance benefits and supplemental security income. This action has been referred to the Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B). Upon consideration of the administrative record, plaintiff's proposed report and recommendation, the Commissioner's proposed report and recommendation, the plaintiff's response to the defendant's report and recommendation, the defendant's reply to plaintiff's response, and the arguments of the parties at the May 18, 2001 hearing before the Magistrate Judge, it is determined that the decision to deny benefits should be reversed and this cause remanded to the Commissioner of Social Security for further proceedings not inconsistent with this decision.
Plaintiff alleges disability due to a total left hip replacement and a Booker class IV heterotopic ossification in need of bone resection. The Administrative Law Judge (ALJ) found that while the claimant cannot perform his past relevant work as a nurse's aide/orderly, he retains the residual functional capacity to lift and carry up to 50 pounds occasionally and 25 pounds on a regular basis but "must be afforded the opportunity to alternate positions between sitting, standing and walking throughout the day." ( See Tr. 24, Findings 5 6) The ALJ specifically determined that plaintiff could perform work identified by the vocational expert at the administrative hearing, specifically work as a hand packager, cashier and data entry clerk. (Tr. 24, Finding 11) The Appeals Council affirmed the ALJ's decision (Tr. 5-6) and thus, the hearing decision became the final decision of the Commissioner of Social Security.
DISCUSSION
In all Social Security cases, the claimant bears the burden of proving that he is unable to perform his previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). In evaluating whether the claimant has met this burden, the examiner must consider the following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; and (4) the claimant's age, education and work history. Id. at 1005. Once the claimant meets this burden, as here, it becomes the Commissioner's burden to prove that the claimant is capable, given his age, education and work history, of engaging in another kind of substantial gainful employment which exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985).
The task for the Magistrate Judge is to determine whether the Commissioner's decision to deny claimant benefits, on the basis that he can perform work as a hand packager, cashier and data entry clerk, is supported by substantial evidence. Substantial evidence is defined as more than a scintilla and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). "In determining whether substantial evidence exists, we must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
This Court's review of the Commissioner's application of legal principles, however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
The claimant contends that the ALJ committed reversible error by (1) failing to fully develop the record regarding his need for further surgery; (2) failing to properly apply the treating physician rule; (3) failing to apply the three-pronged pain standard required by the Eleventh Circuit; (4) conducting a flawed credibility evaluation; (5) posing an incomplete hypothetical question to the vocational expert; and (6) by finding that he does not meet Listing 1.03.
Plaintiff also contends that the Appeals Council erred in failing to properly weigh the evidence submitted to it and that such evidence should have resulted in a remand to the ALJ for further consideration. Because this case is due to be remanded for other reasons, there is no need for the undersigned to consider this issue or many of the other issues raised by the plaintiff. Cf. Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985) ("Because the `misuse of the expert's testimony alone warrants reversal,' we do not consider the appellant's other claims.").
The focus of plaintiff's oral arguments on May 18, 2001, and the issues dispositive of the present appeal, were his contentions that the ALJ failed to apply the Eleventh Circuit's three-pronged pain standard and that he conducted a flawed credibility evaluation. The following represents the totality of the ALJ's discussion of Long's subjective complaints of pain:
The Administrative Law Judge must next determine the claimant's residual functional capacity, a term which describes the range of work activities the claimant can perform despite his impairment. In assessing the claimant's residual functional capacity, consideration must be given to subjective allegations. In evaluating subjective complaints, the undersigned must give careful consideration to all avenues presented that relate to such matters as:
1. The nature, location, onset, duration, frequency, radiation, and intensity of any pain;
2. Precipitating and aggravating factors (e.g., movement, activity, environmental conditions);
3. Type, dosage, effectiveness, and adverse side-effects of any pain medication;
4. Treatment, other than medication, for relief of pain;
5. Functional restrictions; and
6. The claimant's daily activities
( 20 C.F.R. § 404.1529 and 416.929).
The claimant's statements concerning his impairment and its impact on his ability to work are mostly credible, but suggest primarily the need to alternate positions frequently throughout the day. The claimant testified to an inability to do any activity which would necessitate maintaining any particular posture for an extended period. He can't stand or walk for prolonged intervals. He was able to sit throughout Dr. Ikard's examination, and acknowledged the ability to drive. The claimant reported hobbies of watching television and reading.
. . . .
4. The claimant's statements concerning his impairment and its impact on his ability to work are mostly but not entirely credible.
(Tr. 21 24)
The Eleventh Circuit has established a three-part pain standard that applies when a claimant attempts to establish his disability through testimony of pain. "The pain standard requires (1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can reasonably be expected to give rise to the alleged pain." Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (citation omitted). "A claimant may establish that her pain is disabling through objective medical evidence that an underlying medical condition exists that could reasonably be expected to produce the pain. 20 C.F.R. § 404.1529 provides that once such an impairment is established, all evidence about the intensity, persistence, and functionally limiting effects of pain or other symptoms must be considered in addition to the medical signs and laboratory findings in deciding the issue of disability." Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995).
A review of the ALJ's decision in this case reveals that the ALJ did not completely apply the Eleventh Circuit's three-part pain standard as is required by law. First, while the ALJ made reference to plaintiff's total hip replacement and implicitly finds that this is an underlying medical condition he makes no mention whatsoever of a second underlying medical condition plaintiff possesses with respect to his left hip, that is, a Booker class IV heterotopic ossification. More importantly, the ALJ's findings contain no indication that he considered whether Long's subjective complaints were confirmed by the objective medical evidence, as required by the second Holt prong, or whether the ossification is of such severity that it can be reasonably expected to give rise to the alleged pain, as required by the third Holt prong. In fact, in discussing Long's subjective pain complaints, the ALJ makes no reference whatsoever to objective medical evidence which supports the allegations of pain though required to do so by the very regulations the ALJ cites. See, e.g., 20 C.F.R. § 404.1529 (c)(2) (2000) ("Objective medical evidence is evidence obtained from the application of medically acceptable clinical and laboratory diagnostic techniques, such as evidence of reduced joint motion, muscle spasm, sensory deficit or motor disruption. Objective medical evidence of this type is a useful indicator to assist us in making reasonable conclusions about the intensity and persistence of your symptoms and the effect those symptoms, such as pain, may have on your ability to work. We must always attempt to obtain objective medical evidence and, when it is obtained, we will consider it in reaching a conclusion as to whether you are disabled. However, we will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the available objective medical evidence does not substantiate your statements.") Finally, the ALJ only paid lip service to the factors he outlined on page 21 of the administrative record, rather than giving those factors the careful consideration he claimed they were due, and misconstrued Long's testimony relative to those factors. ( Compare Tr. 21 with Tr. 49-50 52-54) For instance, while the ALJ lists as one factor that needs careful consideration to be the "nature, location, onset, duration, frequency, radiation, and intensity of any pain" (Tr. 21), he makes no mention of Long's evidentiary hearing testimony that he is never without pain and that within every hour his pain reaches a 10, on a scale of 1 to 10 with 10 being the worst ( see Tr. 49-50 53). This factor, when properly considered and evaluated, is very important in informing the decision of whether the objectively determined medical condition is of such severity that it can be reasonably expected to give rise to the alleged pain.
In this case there is clear evidence of reduced joint motion both prior and subsequent to Long's January 23, 1998 hip replacement surgery. ( Compare Tr. 141 (November 21, 1997 examination revealed decreased range of motion of the left hip) and Tr. 147 (December 2, 1997 examination of left hip revealed significant limitation of internal and external rotation as well as abduction) with Tr. 212 (January 19, 1999 examination revealed limited motion of the left hip due to the heterotopic ossification))
29 C.F.R. § 404.1529 (c)(4) specifically provides that "[i]n determining the extent to which [a claimant's] symptoms, such as pain, affect [his) capacity to perform basic work activities, [the Social Security Administration] consider[s] all of the available evidence described in paragraphs (c)(1) through (c)(3) of this section." In this case, the ALJ considered only a truncated version of the factors outline in subsection (c)(3) and nowhere, as aforesaid, considered objective medical evidence. This was clear error.
The ALJ also made no mention in his decision of plaintiff's testimony that he lies in bed most of the day. (Tr. 52)
Based upon the foregoing, the Magistrate Judge finds that the ALJ in this case not only failed to articulate the applicable pain standard in this circuit but also failed to apply that standard as required by law or evaluate all the available pain evidence as required by 20 C.F.R. § 404.1529 416.929. Accordingly, this case should be remanded to the Commissioner of Social Security for application of the Eleventh Circuit's three-part pain standard.
It is also clear in this circuit that "[a]fter considering a claimant's complaints of pain, the ALJ may reject them as not creditable, and that determination will be reviewed for substantial evidence." Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (citation omitted). "If the ALJ decides not to credit such testimony, he must articulate explicit and adequate reasons for doing so." Holt, supra, 921 F.2d at 1223 (citation omitted). In this case, the ALJ's credibility decision is unclear inasmuch as he states in his decision that "[t]he claimant's statements concerning his impairment and its impact on his ability to work are mostly credible, but suggest primarily the need to alternate positions frequently throughout the day[,]" (Tr. 21) and in his findings that "[t]he claimant's statements concerning his impairment and its impact on his ability to work are mostly but not entirely credible[,]" (Tr. 24). Because neither of these statements constitute a "clearly articulated credibility finding[,]" see Foote, supra, 67 F.3d at 1562 ("If proof of disability is based upon subjective evidence and a credibility determination is, therefore, critical to the decision, `the ALJ must either explicitly discredit such testimony or the implication must be so clear as to amount to a specific credibility finding.' . . . Explicit credibility findings are `necessary and crucial where subjective pain is an issue.'"), there being no reasons articulated regarding why plaintiff's disabling pain testimony was treated in the manner it was by the ALJ this cause is due to be remanded to the Commissioner for specific findings regarding Long's credibility.
This is simply not what plaintiff's testimony suggests particularly in light of his clear testimony that he spends the majority of each day in bed. (Tr. 52) More importantly, it is clear from the ALJ's questioning of the VE that he was well aware of the fact that plaintiff's testimony did not suggest primarily the need to alternate positions frequently throughout the day. (Tr. 60-61 ("The second hypothetical is that I accept as fully credible, the testimony offered by this gentleman as to the limitations he has by reason of the impairments that have been identified, that I accept as — them as fully credible and supported by the objective medical evidence. It would appear to me that given the needs that he's indicated for having to lie down a substantial period of the day, the degree of pain that he suffers with by his testimony, being a 10 out of 10 level at least once every hour throughout a 24 hour period, and accepting that as a — at a level that would substantially interfere with his ability to maintain attention, concentration, persistence and pace, that such would preclude his work — ability to do not only the work you've identified, but also all other work, is that correct? . . . Yes, sir."))
In other words, given the severity of pain which plaintiff described and the limitations caused by that pain there was simply no room given for the ALJ to "mostly" credit such testimony. The ALJ should have explicitly credited or discredited the testimony, and if discredited, he should have given explicit and adequate reasons for doing so.
CONCLUSION
The Magistrate Judge recommends that the decision of the Commissioner of Social Security denying plaintiff benefits be reversed and remanded pursuant to sentence four of § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), for further proceedings not inconsistent with this decision. The remand pursuant to sentence four of § 405(g) makes the plaintiff a prevailing party for purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412. Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), and terminates this Court's jurisdiction over this matter.
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.