Opinion
No. 99 C 6231
December 5, 2000
MEMORANDAM OPINION AND ORDER
The Plaintiff, Gerald Maciejewski, seeks judicial review pursuant to the Social Security Act, 42 U.S.C. § 405 (g), of a final decision of the Commissioner of Social Security ("Commissioner") denying his request for continuation of Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1381 (a). Plaintiff filed his Motion for Summary Judgment or Remand on March 22, 2000. In turn, the Commissioner filed a cross-motion for Summary Judgment in his favor on April 26, 2000. For the reasons set forth below, the Court grants Plaintiff's motion in part, and denies the Commissioner's motion. Specifically, this case is remanded to the Commissioner for further proceedings consistent with this Opinion.
PROCEDURAL HISTORY
On April 1, 1986, Plaintiff applied for SSI benefits, and on May 20, 1987, an Administrative Law Judge ("ALJ") issued a favorable decision to Plaintiff and found him disabled under § 1614(a)(3)(A) of the Social Security Act. (R. at 12, 268-74.) The ALJ found that Plaintiff suffered from "diffuse degenerative arthritis and lumbar spondylosis and narrowing of L5-S1; degenerative changes of the cervical spine; marked narrowing of the joint spaces of the knees; chronic alcohol abuse; and dependent personality disorder." (R. at 273.) Plaintiff qualified as disabled under §§ 12.09(d), 12.08(A)(5), 12.08(B) (1, 2, and 3), which are listings for personality disorder and substance addiction disorder. (R. at 250, 273.)
References are to the certified administrative record prepared by the Commissioner and filed with this Court pursuant to 42 U.S.C. § 405 (g).
Approximately ten years later, Plaintiff's case was reconsidered under 42 U.S.C. § 1382c (a)(3)(J), which had eliminated the listing for substance abuse disorders. Applying the new law, the agency determined that Plaintiff was not disabled. (R. at 250.) Plaintiff requested a review of the decision, contending that he was, indeed, disabled, independent of his past abuse of alcohol. (R. at 50.) However, on October 9, 1996, the agency ruled, pursuant to Public Law 104-121, that he was not disabled, and accordingly, his benefits would cease on January 1, 1997. (R. at 19, 41-43.) The agency determined that Plaintiff was capable of medium, unskilled work activity. (R. at 41.) On October 15, 1996, Plaintiff filed a request for hearing, (R. at 44), and he appeared before an ALJ on both August 11, 1997 and November 18, 1997. (R. at 297-372.) On March 24, 1998, the ALJ ruled that plaintiff was not disabled. (R. at 12-20.) plaintiff filed a request for review with the Appeals Council on April 20, 1998, because he believed "that not all of the facets of my medical disabilities were looked into properly." (R. at 8.) The Appeals Council denied his request on July 19, 1999, concluding that there was no basis for granting a review under the regulations. (R. at 5-7.) plaintiff requested that the decision be reopened because of new evidence, including treatment records from June 1999. On August 30, 1999, the Appeals Council declined to reopen the decision because it found that the new records "provide[d] no new information pertinent to the period at issue. (R. at 4.) Therefore, Plaintiff sought judicial review of the case.
FACTUAL BACKGROUND
A. Biographical Information
Plaintiff is a high-school graduate who last worked in 1980 during a six-month period as a janitor. (R. at 47, 55, 239.) Prior to that employment, he had worked for five years as an elevator installer. (R. at 51.) He states that his condition of a ruptured disk in his back caused him to become disabled on June 6, 1980. (R. at 41.) Additional infirmities include rheumatoid arthritis and insulin-dependent diabetes. (R. at 51.) He complains of swollen legs, pain, and difficulty walking. (R. at 51.) More specifically, he contends that he only has 30% usage of his right leg and 70% usage of his left leg, and therefore cannot walk or stand in place for long periods of time. (R. at 44.)
Plaintiff, born on July 18, 1943, was 54 years old at the time of the ALJ's decision. (R. at 270.) Plaintiff lives with his mother, (R. at 250), and notes that he continues to think about suicide and suffers from a short memory and loss of concentration. (R. at 46-47.)
B. Medical Evidence
The February and June 1986 x-rays report a narrowing of the disc spaces in the plaintiff's spine. (R. at 213, 235.) In 1987, Plaintiff was treated at a VA Hospital for suicidal ideation and somatic complaints, distressed from physical changes perceived from insulin-dependent diabetes. (R. at 217-18.) Plaintiff was diagnosed with major depression. (R. at 218.)
On September 11, 1996, Dr. Stephen Epner, an internist, examined Plaintiff. (R. at 73-76.) Dr. Epner documented, in his evaluation, that Plaintiff had been hospitalized twice for back pains in the early 1970's, but had not undergone surgery to alleviate the pain. (R. at 73, 74.) Rather, Plaintiff took Motrin. (R. at 73.) He further noted that Plaintiff often uses a cane and has a limp, but can walk distances greater than fifty feet without assistance (R. at 73, 74), and that Plaintiff experiences tenderness to palpation in the lower back, back spasms, and a decreased range of motion in the lower back. (R. at 76.) There was also trace edema in Plaintiff's legs. (R. at 75.) Dr. Epner further recorded Plaintiff's history of diabetes, resulting in dependence on insulin and decreased sensation in his lower extremities, as well as his pain and swelling resulting from rheumatoid arthritis. (R. at 73, 76.) In noting Plaintiff's history of alcohol abuse, Dr. Epner stated that Plaintiff notes a decreased memory, and, at the time of the examination, consumed ten cans of beer each day. (R. at 74.)
The same day as Dr. Epner's examination, September 11, 1996, Dr. John Conran, a psychiatrist, performed a psychiatric evaluation of Plaintiff. (R. at 81-83.) Dr. Conran interviewed Plaintiff for approximately forty-five minutes and diagnosed him with mild depression, diabetes mellitus, and alcohol abuse by history. (R. at 83.) Dr. Conran noted that Plaintiff said that he had been in the psychiatric unit twice, in 1986 and 1987, at Hines V.A. Hospital for depression and drinking. (R. at 82.) "He said about 8 to 10 years ago he claimed to be suicidal and was treated with antidepressants however he has not had any treatment of this type since then." (R. at 82.) He recorded that Plaintiff's medications did not, at that time, include any psychotropic medication, (R. at 82.), and further determined that Plaintiff was "down at times appropriate to his situation." (R. at 83.)
On September 30, 1996, Dr. Jose L. Gonzalez, a non-examining physician, completed a Residual Functional Physical Capacity Assessment. (R. at 84.) Dr. Gonzalez determined that Plaintiff could perform medium work, with restrictions on climbing, balancing, stooping, kneeling, crouching, and crawling. (R. at 85, 87.) On September 30, 1996, Dr. Carl Hermsmeyer, Ph.D., a non-examining consulting psychologist, submitted a Psychiatric Review Technique form. (R. at 64-72.) On that form, he noted that the Plaintiff suffered from mild depression, but that he "seldom" was limited by deficiencies in concentration, persistence or pace. (R. at 67, 71.)
Dr. Hermsmeyer also completed a Mental Residual Functional Capacity Assessment on September 30, 1996. (R. at 92-94.) He listed plaintiff as not significantly limited in all categories except two, where he considered the Plaintiff moderately limited in his ability to understand and carry out detailed instructions. (R. at 92-94.) Dr. Hermsmeyer concluded that Plaintiff had the "mental capacity to perform simple tasks." (R. at 94.) Dr. Hermsmeyer based his assessments, in part, on Dr. Conran's report, but did not have any of the 1997 records from Hines VA Hospital, when Plaintiff was treated for various medical conditions, including depression.
Among the evidence submitted for the ALJ hearings were medical reports from Plaintiff's stays at Northern Illinois Medical Center and Hines VA Hospital. (R. at 249.) plaintiff was hospitalized at Hines VA in May 1997 for upper gastrointestinal bleeding, diabetes mellitus, and thrombocytopenia. (R. at 127.) The July 1997 Northern Illinois Medical Center visit resulted from an accident whereby Plaintiff was hit by an automobile while bicycle riding. (R. at 263.) A corresponding radiology report found "extensive vascular calcification" in his knee. (R. at 265.) The August 1997 Hines VA Hospital report diagnosed Plaintiff with anemia, liver cirrhosis, insulin-dependent diabetes mellitus, alcohol dependence, thrombocytopenia, and depression. (R. at 257.)
Plaintiff's hematocrit was recorded at 30.2%. (R. at 257-58.)
Thrombocytopenia is a decrease in the number of platelets in one's blood. (Defendant's Memorandum in Support of Commissioner's Motion for Summary Judgment at 4.)
Plaintiff's medications included insulin, vitamins, and anti-depressants as of November 1997. (R. at 266, 280.)
C. The ALJ Hearings
An initial hearing before ALJ Rosemary Denson was held on August 11, 1997. (R. at 297-323.) A supplemental hearing was held on November 18, 1997. (R. at 324-372.) The hearings before the ALJ included testimony by: (1) the Plaintiff; (2) Dr. William Newman, an orthopedic surgeon; and (3) Mr. Lee Knutson, a vocational expert ("VE"). (R. at 12, 299.)
Dr. Newman had not medically examined Plaintiff, but was present at the hearings and testified about Plaintiff's conditions as the medical expert. (R. at 99.) At the initial hearing, Dr. Newman discussed Plaintiff's liver disease with the ALJ, but noted that relevant lab work was missing from the records, including liver function tests. (R. at 311.) Dr. Newman further testified that he could not determine, based on the records before him, whether Plaintiff's impairments qualified as a disability under any Social Security listing. (R. at 311.) He stated, "I'm not that good on, on liver problems." (R. at 311.) During the hearing, Dr. Newman reviewed the records brought to the hearing by Plaintiff's attorney, in order to assess the primary cause of Plaintiff's disability, and to recommend the appropriate type of medical expert to testify. (R. at 313.) After this brief review, Dr. Newman included diabetes in his primary diagnosis, but then indicated that he could not conclude whether Plaintiff met any disability listing for diabetes, stating, "that's not my field. I'd have to look it up actually." (R. at 315.) The ALJ asked the doctor: "So you would recommend an internist?" to which he replied "Yeah, that would be okay. I could also do it myself and go over a little bit carefully." (R. at 315.) Because Dr. Newman indicated that he needed time to review all of the medical records, the ALJ continued the case for a supplemental hearing. (R. at 318-20.)
At the supplemental hearing on November 18, 1997, liver function tests were, again, absent from the record Dr. Newman reviewed, because, according to Plaintiff's attorney, the VA Hospital had not responded to his requests for the relevant blood tests. (R. at 327-28.) Plaintiff had had a blood count on either October 20 or October 23, 1997. (R. at 330.) When Plaintiff's attorney asked if he could supplement the record at a later time with the October blood tests, the ALJ refused, informing Plaintiff's attorney that he should have followed-up with a subpoena. (R. at 328.)
In response to the ALJ's question as to whether Plaintiff met a Social Security listing, Dr. Newman replied, "Well, I think, I don't think he meets a particular listing that I know of. He's got a number of different things wrong with him." (R. at 338.) The ALJ then went into greater detail and questioned the medical expert regarding Plaintiff's liver disease. (R. at 338.) Dr. Newman testified that, "I'm not an expert on that because I'm not an internist. And that's why I thought it would be nice to have the liver tests to help us out on that . . ." (R. at 339.) Dr. Newman testified that Plaintiff's liver and spleen were enlarged. (R. at 339.) He furthermore noted that it would be helpful to get blood tests to address the rheumatoid arthritis problems. (R. at 361.)
Specifically, Dr. Newman noted that Plaintiff had decreased motion from the arthritis that would limit his squatting, kneeling, crawling, and bending, but declared that he didn't think it was a severe impairment. (R. at 341.) Dr. Newman also testified about Plaintiff's "significant back trouble" and his degenerative disk disease, which would prevent him from doing any heavy lifting, repeated bending, or prolonged sitting. (R. at 342.) Dr. Newman recommended that Plaintiff only lift up to twenty pounds occasionally, and no more than ten pounds frequently. (R. at 342.) Dr. Newman further opined that Plaintiff should not sit for more than two hours at a time, or stand more than an hour at a time, without a ten-minute interruption. (R. at 362.) Plaintiff's spondylosis (neck problems) also limited his overhead work. (R. at 342.) Dr. Newman declared that the back, knee and neck problems limited Plaintiff functionally, but that his liver problems did not. (R. at 344.) Dr. Newman testified that he believed Plaintiff experienced acute episodes of thrombocytopenia in May and July 1997, but that the recent blood counts (which he did not have) could provide information about whether the condition was chronic. He declared that "You [the ALJ) would want to have a follow-up on that." (R. at 355-56.)
Mr. Knutson, the vocational expert, classified Plaintiff's prior work history as medium to very heavy work. (R. at 346.) Based on the restrictions determined by Dr. Newman, Mr. Knutson testified that Plaintiff could not do any past relevant work. (R. at 347.) He further testified that Plaintiff's skills were not transferable. (R. at 347-48.) However, Plaintiff had the residual functional capacity ("RFC") to work as a bench work assembler (6,000 jobs), gate attendant (1000 jobs), or car porter (600 jobs), totaling at least 7,000 jobs. (R. at 362-63.)
Plaintiff testified at the hearing about persistent fatigue, which he thought may be caused by his medications. (R. at 353.) Plaintiff further testified that he had not consumed any beer since the initial hearing before the ALJ. (R. at 332.)
At the end of the second hearing, the ALJ announced that she would not hold the case open for a third hearing. (R. at 370.) She stated that, "I did an evaluation of the depression as it is, we don't have more than the medical records that we already have on that. That was in 1986, I think the hospitalization or `87, I might have that wrong." (R. at 370.) Plaintiff's attorney requested that the record remain open so that he could submit additional medical evidence and a closing brief, but the ALJ denied his request. (R. at 12, 371.) Consequently, records by Dr. Barbara Benton, who had prescribed Plaintiff an anti-depressant medication on November 3, 1997 — just three weeks before the November 18th hearing — were not included as a part of the record. (R. at 280.)
Plaintiff's attorney did not specify, exactly, what medical records he would like to provide at a later date. Based on the record, however, it appears that he would have liked to supplement the record, at a minimum, with the recent blood work.
Plaintiff's attorney did not explicitly mention Dr. Benton's records when he made his request that the record remain open. However, the ALJ was aware that Plaintiff had been prescribed an anti-depressant by Dr. Benton on November 3, 1997. (R. at 280, 349.) She stated, though, that she did not find "a disabling depression in the medical records" and that his depression could be controlled with medication. (R. at 349.)
D. The ALJ's Findings
The ALJ found that Plaintiff was not under a "disability" covered by the Act: "Because of his alcohol abuse and ability to perform light unskilled work, I find claimant not eligible for supplemental security income effective January 1, 1997, and thereafter." (R. at 14.) Plaintiff's conditions included "insulin diabetes mellitus, cervical spondylosis, history of alcoholism, mild depression, cirrhosis of the liver, status post right knee surgery, and degenerative changes in the lumbar spine." (R. at 19.) According to the ALJ, these conditions, while severe, failed to qualify Plaintiff for benefits under any section of the Listing of Impairments. (R. at 19.) Furthermore, the ALJ, relying on the assessments of Drs. Newman and Gonzalez, concluded that the combination of Plaintiff's impairments did not qualify him for benefits under medical equivalence. (R. at 16.) In assessing the Plaintiff's residual functional capacity ("PFC"), the ALJ found that the claimant was not credible in his testimony of pain and fatigue. (R. at 19.) On the "OHA Psychiatric Review Technique Form" attached to her decision, the ALJ noted that the Plaintiff suffered "often" from deficiencies in concentration, persistence or pace. (R. at 23.)
"'Residual functional capacity' is that which a claimant can do despite (his] physical and mental limitations" and is utilized to assess what level of work (sedentary, light, medium, heavy or very heavy) the Plaintiff is still capable of performing. Clifford v. Apfel, 227 F.3d 863, 872 n. 7 (7th Cir. 2000).
With regard to working, the ALJ recognized that Plaintiff was unable to perform his past janitorial work and that he had no transferable skills. (R. at 19.) However, the ALJ stated that Plaintiff's non-exertional impairments did not prevent him from performing other light unskilled jobs. (R. at 20.) "Considering the claimant's age, education, work history and residual functional capacity, and using, as a framework, Rule 202.13, of the Medical Vocational Guidelines, a finding of "not disabled" is warranted." (R. at 18.)
E. Post-ALJ Hearing Evidence
On February 5, 1999, Dr. John Tirado examined Plaintiff and completed a psychological evaluation of him. (R. at 291-96.) Dr. Tirado found that Plaintiff experienced "a moderate degree of depression," (R. at 295), and that his medical impairments, in conjunction with his "diminished level of energy, slow pace, and mediocre motivation to return to work, limit his capacity to function effectively in most job situations." (R. at 296.) Dr. Tirado concluded that Plaintiff "would not be able to complete work tasks in a timely and dependable fashion." (R. at 296.) This psychological evaluation was received by the Appeals Council and, apparently, included in the record. (R. at 7.)
STANDARD OF REVIEW
In reviewing the Commissioner's (here the ALJ's) decision, the court may not decide facts anew, reweigh the evidence, or substitute its own judgment for that of the Commissioner. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994) Rather, the court must accept findings of fact that are supported by "substantial evidence," 42 U.S.C. § 405 (g) (1988), where substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Herron, 19 F.3d at 333 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971))). The ALJ must consider all relevant evidence and may not select and discuss only that evidence that favors his ultimate conclusion. Id. Where conflicting evidence allows reasonable minds to differ, the responsibility for determining whether a claimant is disabled falls upon the Commissioner (or ALJ), not the courts. Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990). See also Stuckey v. Sullivan, 881 F.2d 506, 509 (7th Cir. 1989) (the ALJ has the authority to assess medical evidence and give greater weight to that which he finds more credible). This court is limited to determining whether the Commissioner's final decision is supported by substantial evidence and based upon proper legal criteria. Erhart v. Secretary of Health and Human Services, 969 F.2d 534, 538 (7th Cir. 1992).
This does not mean the Commissioner (or ALJ) is entitled to unlimited judicial deference, however. In addition to relying on substantial evidence, the ALJ must articulate his analysis at some minimal level and state his reasons for accepting or rejecting "entire lines of evidence," although he need not evaluate in writing every piece of evidence in the records. See Herron, 19 F.3d at 333; see also Young v. Secretary of Health and Human Services, 957 F.2d 386, 393 (7th Cir. 1992) (ALJ must articulate his reason for rejecting evidence "within reasonable limits" in order for meaningful appellate review); Guercic v. Shalala, No. 93 C 323, 1994 WL 66102, *9 (N.D. Ill. 1994) (ALJ need not spell out every step in his reasoning, provided he has given sufficient direction that the full course of his decision may be discerned), (citing Brown v. Bowen, 847 F.2d 342, 346 (7th Cir. 1988)).
The Social Security regulations prescribe a sequential five-part test for determining whether a claimant is disabled. See 20 C.F.R. § 404.1520, 416.920 (2000). The ALJ must consider: (1) whether the claimant is presently unemployed; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the claimant's impairment meets or equals any impairment listed in the regulations as being so severe as to preclude substantial gainful activity; (4) whether the claimant is unable to perform his past relevant work; and (5) whether the claimant is unable to perform any other work existing in significant numbers in the national economy. Id.; see also Young, 957 F.2d at 389. A finding of disability requires an affirmative answer at either step 3 or step 5. A negative answer at any step (other than step 3) precludes a finding of disability. Id. While the claimant bears the burden of proof at steps 1-4, the Commissioner bears the burden at step 5. Id.
The ALJ's analysis at step 5 typically involves an evaluation of the claimant's RFC to perform a particular category of work (i.e. sedentary, light, medium, heavy or very heavy work), in combination with the application of the Grid to determine whether an individual of the claimant's age, education, and work experience could engage in substantial gainful activity. See 20 C.F.R. Pt. 404, Subpt. P, App. 2 (2000).
The Grid is a chart which classifies a claimant as disabled or not disabled, based on the claimant's physical capacity, age, education, and work experience. Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987). The Grid was promulgated to simplify the process, and improve the consistency, of disability determinations. Id. If the use of the Grid is appropriate, the Commissioner or designee (ALJ) may rely upon it for determining disability, and, in such a case, the Grid alone constitutes substantial evidence sufficient to uphold the decision of the Commissioner. Id. However, use of the Grid may be inappropriate if the claimant suffers from severe nonexertional impairments which prevent the claimant from performing the work indicated by the Grid. Id. at 640-41. Thus, if nonexertional impairments are severe enough, use of the Grid is not appropriate and the courts will reverse a determination of nondisability based on the Grid. Id. at 641.
The determination as to whether use of the Grid is appropriate is a question of fact, and the ALJ's use of the Grid will be upheld if substantial evidence supports its application. Walker, 834 F.2d at 641. The fact that a claimant suffers from a non-exertional impairment does not automatically preclude utilization of the Grid; in such a case, the ALJ must determine whether the claimant's nonexertional impairments are severe enough to substantially limit the claimant's abilities. Id. "To uphold the ALJ's finding that grids may be used in a given case, we require only `that there be reliable evidence of some kind that would persuade a reasonable person that the limitations in question do not significantly diminish the employment opportunities otherwise available.'" Id. (citing Warmoth v. Bowen, 798 F.2d 1109, 1112 (7th Cir. 1986).)
DISCUSSION
After reviewing the record, the Court finds that, although the ALJ properly supported her finding that Plaintiff failed to prove his disability at step 3, this case should be remanded because the ALJ failed to properly support her findings at step 5. In the case at bar, the ALJ found that the Plaintiff satisfied his burden of proof as to steps 1, 2, and 4. The ALJ also found, at step 3, that Plaintiff failed to demonstrate any impairment that met or equaled the requirements in the listing. Moving to step 5, the ALJ found that Plaintiff was capable of performing work which exists in significant numbers in the national economy.
Based primarily on Plaintiff's physical impairments, the ALJ concluded that he could no longer perform his past relevant work, but that he could perform work at the light exertional level. She further concluded that, while Plaintiff suffered from depression, a non-exertional impairment, he retained the mental ability to perform simple, unskilled work. Then, using Grid Rule 202.13 as a framework for her decision, the ALJ concluded that Plaintiff was not disabled. Because the ALJ concluded that Plaintiff was unable to perform any of his past jobs (Step 4), she went to Step 5 (where the burden of proof shifted from Plaintiff to the Commissioner). The ALJ found that the Commissioner met that burden by application of the Grid and the testimony of the vocational expert, and found that Plaintiff could, indeed, perform a substantial number of jobs in the workforce.
Light work requires that the claimant be able to lift up to twenty pounds as well as stand or walk for a total of six to eight hours a day. Allen v. Sullivan, 977 F.2d 385 (7th Cir. 1992) (citing in part Social Security Ruling 83-10, Titles II and XVI.)
Plaintiff makes several arguments about the ALJ's application of step 5; plaintiff's arguments are separated into two main areas: physical and mental impairments. First, with respect to the physical impairments, Plaintiff contends that the ALJ committed legal error in her assessment of his physical conditions, because she did not fully develop the record in that regard. Plaintiff focuses on the issue of fatigue and pain. The issue of fatigue is significant, because the ALJ categorized Plaintiff's RFC as allowing him to perform light work. Had Plaintiff been found to be limited by fatigue to sedentary work, as opposed to light work, for instance, then he would have been deemed disabled under Rule 201.12 of the Grid. 20 C.F.R. Part 404, Subpt. P, Appendix 2, Table No. 1, Rule 201.12. Additionally, the existence of a limitation due to fatigue and pain impacts the vocational expert's findings of available jobs for the Plaintiff. Plaintiff's attorney questioned the vocational expert, Mr. Knutson, about the impact of a fatigue or pain limitation on the jobs available to Plaintiff. (R. at 368-69.) The vocational expert explained that such limitations would eliminate the bench assembler and bench machine tender positions (6000 jobs). Significantly, such positions constitute a majority of the 7600 jobs that the vocational expert found the Plaintiff could perform.
Plaintiff notes that fatigue is related to both his conditions of thrombocytopenia and liver disease and is a side effect of his medications. (Plaintiff's Motion for Summary Judgment or Demand at 10.) Plaintiff further focuses on Plaintiff's hematocrit level of 30.2%, where the disability listing for such is 30%. Id.
In dismissing Plaintiff's complaints about fatigue and pain, the ALJ determined that his testimony about fatigue and pain was not credible, in part because she found there was a lack of objective medical evidence supporting his complaints. (R. at 17.) Notably, the ALJ relied solely, during the hearings, on the testimony of a medical expert who was an orthopedic surgeon. Considering the significance of fatigue in evaluating Plaintiff's RFC, the ALJ could have called an internist to testify to Plaintiff's non-orthopedic impairments, including Plaintiff's liver condition and thrombocytopenia, and the potential for limitations based on pain and fatigue. The orthopedic surgeon admitted his lack of knowledge about diabetes, thrombocytopenia, and liver conditions and indicated that it would be a good idea for the ALJ to call an internist for the supplemental hearing. It was legal error for the ALJ not to call the appropriate medical expert to testify, especially when Plaintiff testified regarding fatigue and pain at the hearing. See 20 C.F.R. § 416.929 (c)(2) ("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.").
Despite the ALJ's contention that there was no objective medical evidence to support Plaintiff's complaints of fatigue and pain, there are, indeed, notations documented in the record of Plaintiff's complaints of an inability to walk or stand for long periods of time, which could be tied, in part, to fatigue. (R. at 44.) Furthermore, the existence of pain is noted in both his submissions to Social Security as well as in physician's records. (R. at 44, 51, 73, 76.) Dr. Epner specifically lists back pain in his list of Plaintiff's four ailments in the diagnosis section, along with diabetes, rheumatoid arthritis, and history of alcohol abuse. (R. at 76.) The ALJ failed to question Dr. Newman about the likelihood of fatigue or pain being a consequence of Plaintiff's ailments or medications.
Further, the medical expert testified that, in order to accurately assess Plaintiff's conditions, the record should contain the results of liver tests. The results of such tests were not a part of the record for either of the two hearings, and at the end of the supplemental hearing, the ALJ refused to keep the record open. In light of Plaintiff's testimony that blood tests had, indeed, been done in the month before the supplemental hearing, as well as the medical expert's testimony that such tests would be helpful in accurately determining the severity of Plaintiff's non-orthopedic impairments, the ALJ should have allowed the record to remain open for the results of such tests, especially considering Plaintiff's attorney had attempted to obtain the blood tests from the VA Hospital prior to the supplemental hearing. Without the tests, the severity and impact of Plaintiff's liver disease or thrombocytopenia were uncertain. The medical expert's testimony, lacking evidence in the form of test results on which to base his opinion, as well as expertise in the relevant medical areas, does not constitute substantial evidence. The ALJ incorrectly based her decision on less than a complete record, which she had an obligation to develop. Thompson v. Sullivan, 933 F.2d 581, 585 (citations omitted.)
While the ALJ informed Plaintiff's attorney that he should have submitted subpoenas to the VA Hospital, instead of writing letters and making telephone inquiries, in order to retrieve the relevant test results, it was legal error not to keep the record open and allow Plaintiff's attorney the chance to subpoena the records, especially given his honest attempt to obtain the records.
While the medical expert testified that Plaintiff's thrombocytopenia was not a chronic condition, he, admittedly, did not have the recent blood work to see if Plaintiff's platelets had actually improved. As Plaintiff points out, Dr. Newman's testimony is based on unsupported speculation and cannot be the basis for substantial evidence.
As Plaintiff explains, the ALJ could have asked Dr. Newman to review, at a later time, Plaintiff's more recent blood work, and then answer via interrogatory whether the objective evidence conclusively showed chronic thrombocytopenia. The ALJ did not do this, and, consequently, did not take adequate steps to fully develop the record.
The Court also finds that the ALJ committed error with regard to the assessment of Plaintiff's mental impairments, by failing to develop the record and properly analyze their potential impact on Plaintiff's vocational options. The ALJ specifically found that Plaintiff had an affective disorder, accompanied by a depressive syndrome evidenced by decreased energy, feelings of guilty or worthlessness, difficulty concentrating or thinking, and thoughts of suicide. (R. at 21-22.) Functionally, the ALJ noted that Plaintiff had "moderate" restrictions of daily living activities, "slight" difficulty in maintaining social functioning, and "often" deficiencies of concentration, persistence or pace. (R. at 23.) Significantly, the ALJ failed to justify the use of the Grid, given that she found that Plaintiff had severe non-exertional impairments (e.g. affective personality disorder accompanied by depression). Consequently, the Court finds that there is not substantial evidence to support the application of the Grid, where Plaintiff's "severe" impairments were non-exertional. Luna v. Shalala, 22 F.3d 687, 691 (7th Cir. 1994). Here, the ALJ noted on the Psychiatric Review Technique Form under the Medical Summary section that "a severe impairment is present which does not meet or equal a listed impairment." (R. at 21.) While not meeting a listing, the ALJ found Plaintiff's affective disorder to be severe. Moreover, the ALJ found that Plaintiff's affective disorder often resulted in deficiencies of concentration, persistence or pace, resulting in failure to complete tasks in a timely manner. (R. at 23.) Thus, while the fact that plaintiff suffers from a non-exertional impairment would not automatically preclude utilization of the Grid, the ALJ did not explain her apparent rationale that his limitations would not significantly diminish the employment opportunities indicated by the Grid. See Warmoth v. Bowen, 798 F.2d 1109, 1112 (7th Cir. 1986).
Additionally, assuming the use of the Grid as a framework in making her decision was proper, the ALJ did not pose an appropriate hypothetical to the vocational expert that included, for example, consideration of Plaintiff's "often" deficiencies of concentration, persistence, or pace. Therefore, the ALJ committed legal error in not submitting this information to the vocational expert for his consideration. The hypothetical questions to the vocational expert should have included plaintiff's deficiencies of concentration, persistence, or pace. See Newton v. Chater, 92 F.3d 688, 695 (8th Cir. 1996). "Since these deficiencies [including inter alia concentration, persistence, or pain] were not included in the hypothetical question, the expert did not base his opinion on the full extent of [Plaintiff's] limitations and his testimony could not have constituted substantial evidence to support the Commissioner's decision." Id.
Finally, the ALJ failed to fully develop the record with regard to Plaintiff's mental impairments. Specifically, the ALJ was unwarranted in denying counsel's request to leave the record open for the submission of information regarding plaintiff's depression, especially after Dr. Benton made a diagnosis of depression and prescribed Plaintiff an anti-depressant in November 1997, a few weeks prior to the supplemental hearing. Instead, the ALJ relied on Dr. Hermsmeyer, a non-examining and non-testifying psychologist, to conclude that Plaintiff did not suffer from a severe non-exertional impairment of depression. Dr. Hermsmeyer, however, had relied, in part, on Dr. Conran's notes that specifically found that Plaintiff was not taking an anti-depressant medication. Furthermore, Dr. Hermsmeyer did not have access to the VA records which had mentioned depression. Instead of submitting such information to Dr. Hermsmeyer for review, the ALJ chose to draw her own conclusions about the recent prescription of an anti-depressant medication, stating, "I don't find the depression disabling. That can be controlled with medication, he's on medication now, so that's not doing it . . ." (R. at 349.) Rather, it would have been beneficial to have a mental health specialist testify at the hearing about Plaintiff's depression, or at a minimum, have a non-examining psychiatrist or psychologist review the full and complete record.
The Commissioner contends that the failure of plaintiff to submit Dr. Benton's records to the Appeals Council (while submitting a 1999 psychological evaluation by Dr. Tirado) should result in a negative inference about the impact of Dr. Benton's records on the overall analysis. The Court, however, does not find such inference compelling, mainly because the ALJ specifically informed Plaintiff's counsel that he could not supplement the record after the November 18th hearing, even though the decision did not issue until four months later.
Defendant argues that the VA records would not have contributed to Dr. Hermsmeyer's assessment of Plaintiff's mental condition. The Court notes, however, that the post-September 1996 VA records do diagnose Plaintiff with depression, but do not appear to provide any further details with regard to that diagnosis. (R. at 257.)
Accurate findings regarding depression are particularly significant given that, when Plaintiff's attorney asked Mr. Knutson how the consequences of a history of depression, resulting in limitations on the ability of someone to interact with others, could affect the relevant job base, Mr. Knutson responded, "I don't think there are other jobs in the economic [sic] if you add that restriction to the other restrictions we, we already have." (R. at 370.) Hence, a better understanding of Plaintiff's depression would likely have an impact on plaintiff's ability to perform certain jobs.
After reviewing the record, the Court finds that the Commissioner has failed to sustain his burden at step 5 of providing substantial evidence that Plaintiff could perform a significant number of jobs despite his physical and mental impairments. Therefore, this case is remanded pursuant to sentence four(4) of 42 U.S.C. § 405 (g), where a court must reverse an ALJ's decision if it is not supported by substantial evidence or is based on legal error. Eads v. Secretary of Department of Health and Human Services, 983 F.2d 815, 817 (7th Cir. 1993). Both are present in this case.
The Court remands this case pursuant to sentence four (4) of 42 U.S.C. § 405 (g), because of legal error and lack of substantial evidence. The Plaintiff did not request, and the Court, therefore, does not need to consider remand under sentence six (6) of 42 U.S.C. § 405 (g), dealing with new and material evidence. Consequently, the Commissioner's argument that plaintiff did not ask for a sentence six (6) remand when he, apparently, submitted new evidence (e.g. Dr. Tirado's analysis) to the Appeals Council after the relevant time period, is irrelevant. The Court remands this case under sentence four (4), and does not need to address whether a sentence six (6) remand would be appropriate.
Upon remand, the ALJ should refer Plaintiff for a consultative examination with an internist and have the examining physician render an opinion, pursuant to 20 C.F.R. § 416.919n(c)(6), as to what Plaintiff can still do despite his impairments. Thereafter, Plaintiff should be granted another hearing during which a more complete record will be made regarding his complaints of fatigue and pain, and lab records during the relevant time periods will be included therein.
Furthermore, upon, remand, the ALJ must determine whether Plaintiff's mental impairments alone, or in combination with his physical impairments, would render him unable to engage in work functions. As set forth above, these determinations should be made through an evaluation by another psychologist/psychiatrist with full access to all of the relevant medical records, and/or testimony by such professional at a hearing. The ALJ should allow Plaintiff to add relevant evidence to the record regarding his depression and anti-depressant medication, and may wish to have Plaintiff undergo another consultative psychological evaluation. The ALJ should also reexamine the use of the Grid, because of Plaintiff's, apparently, severe non-exertional impairments. If the ALJ concludes that the use of the Grid is, indeed, appropriate, then the ALJ must ask the vocational expert the appropriate hypothetical, with reference to "often" deficiencies of concentration, persistence, or pain, which can erode the unskilled job base. The ALJ may take any other action not inconsistent with this opinion.
CONCLUSION
The Court, having carefully reviewed the entire record herein, concludes that the ALJ's finding that Plaintiff can perform a substantial number of jobs was not based on substantial evidence, and that the ALJ committed legal error in reaching this conclusion.
Accordingly,
IT IS HEREBY ORDERED that the Commissioner's Motion for Summary Judgment be, and the same hereby is, denied.
IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment be, and the same hereby is, granted in part. This cause is hereby remanded to the Commissioner for further proceedings consistent with this Opinion.