Opinion
Civil Action No. 00-2408.
April 3, 2001
ORDER AND REASONS
Before the Court is the claimant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Commissioner's response to the aforesaid motion for summary judgment was in the form of a Motion to Reverse the ALJ's Decision and Remand for the purpose of considering new evidence pursuant to the fourth sentence of 42 U.S.C. § 405(g), citing Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 2163-65 (1991) as authority to do so. The Court, having reviewed the motions, memoranda, exhibits/administrative record, and the applicable law, and for the reasons detailed herein below, this Court GRANTS claimant's motion for summary judgment and GRANTS the Commissioner's motion, but only insofar as it seeks reversal of the ALJ's decision. To the extent the Commissioner seeks remand for the purpose of considering new evidence, his motion is DENIED.
I. UNDISPUTED FACTUAL BACKGROUND.
Plaintiff/claimant, Warren C. Martin, seeks judicial review pursuant to Section 405(g) of the Social Security Act (the Act) of the final decision of the Commissioner of Social Security Administration (SSA), denying his claim for disability benefits (DIB), and as well as his application for supplemental security income (SSI).
Four long years ago, claimant filed his application for Title II benefits on July 9, 1997. After approximately 20 years aboard vessels working primarily as a waiter/cook, Martin suffered a fall aboard ship operating near Guam on November 16, 1996. In a coma, he was air evacuated to Guam and was treated at Tripler Army Medical Center for a closed head injury. His Glascow coma score was 7, which was consistent with a severe traumatic head injury. [Adm.Rec. 113, 137-38]. A CT-Scan revealed a right temporal lobe contusion and right Sylvan fissure hematoma. The claimant underwent several procedures including but not limited to: (1) brain surgery ( i.e., open right temporal craniotomy with hematoma evacuation of the right temporal lobe ( i.e., the contused brain was suctioned out), concluded with replacement of the bone flap which was secured using plates [Adm.Rec. 113-14]; and (2) via stab incision in the frontal lobe a Camino intracranial pressure monitor was screwed into his head, which monitor registered intracranial pressures elevated into the 20's [Adm.Rec. 94, 111, 113, 114]. It was noted during his brain surgery that "the entire temporal lobe was contused" [Adm.Rec. 114]. Then, through an incision in the left frontal area made with a twist drill a ventricular catheter was placed to a depth of 6 cm, it was tunneled posteriorly approximately 3", exited through a stab incision and connected to an external drainage system and a pressure transducer [Adm.Rec. 111-12]. Claimant's final diagnosis was closed head injury with right temporal and frontal lobe contusions with associated epidural and subdural hematomas. In addition, he was also diagnosed with pancreatitis. Claimant spent nine days in intensive care (ICU), and then transferred to the ward where he received occupational and physical therapy, along with speech pathology. He was discharged on December 15, 1996 in stable condition and transferred to a New Orleans Rehabilitation Center with a specific plan to follow-up with neurosurgery in New Orleans. He was also prescribed Dilantin and instructed on its use "to treat seizures" and problems associated with such, including confusion, weakness of extremities, drowsiness, dizziness, uncoordinated movements and blurred vision, inter alia. He was further warned to use caution requiring tasks that require alertness. [Adm.Rec. 93, 102, 103, 104].
With a seventh grade education, Martin served had served in the U.S. Marine Corps for two years, and upon discharge joined the Seafarers International Union working as a merchant mariner performing duties as a steward, waiter, cook and galley-hand.
He fell onto a gangplank, striking the back of his head.
Dilantin is an anti-epileptic drug indicated for the control of tonic-clonic (grand mal) and complex partial (psychomotor, temporal lobe seizures) and treatment of seizures occurring during or following neurosurgery. The most common adverse reactions with drug therapy included nystagnums, ataxia, slurred speech, decreased coordination, and mental confusion. Also, dizziness, insomnia, transient nervousness, motor twitchings and headaches have been observed. See Physician's Desk Reference (PDR 55), at 2425-26 (55 ed. 2001).
On December 16, 1996, Martin was admitted to Touro Infirmary with depression, anxiety, and moderate cognitive disorganization with poor attention. He required supervision with self-care and functional mobility (ambulation and stairs). The MMPI performed by Dr. Hauck in neuropsychiatry showed evidence of some depression, anxiety, possibly paranoia. Both physicians in Touro's neuropsychiatry department recommended neuropsychiatric treatment to follow his mental dysfunction . Noted from the outset were cognitive and memory problems and the decision was made to continue the Dilantin for purposes of seizure prevention. [Adm.Rec. 139].
During his stay at Touro he was also diagnosed with anemia (i.e., his platelets got as low as 42, which required transfusion with fresh frozen plasma). [Adm.Rec. 133].
Hepatitis studies accomplished at Touro showed hepatitis A, B, and C antibodies were positive, and Dr. Salvadore Caputto noted possibly some splenic sequestration of blood cells. Additionally, in light of the claimant's history of hepatitis, Dr. Caputto recommended follow up with a hepatologist regarding a possible immunological problem with the blood cells. [Adm.Rec. 133-341].
Surgery at Touro Hospital on January 23, 1997 was performed on his right arm, since X-Ray confirmed nonunion of a right humeral shaft fracture. Surgeons removed an intramedullary rod and interlocking screw of the right humerus and a right iliac crest bone graft and open reduction fixation of the right humerus was performed. [Adm.Rec. 134, 163]. He did not do well after surgery. Martin developed breathing/pulmonary problems, required transfusion with 2 units of packed red blood cells. Id.
In addition to his shoulder problem, also noted was ossification of the anterior longitudinal ligament of the spine, consistent with diffuse idiopathis skeletal hypertosis (DISH). [Adm.Rec. 154].
On February 7, 1997 Martin, then 44 years old, was "discharged home to his mother" with the following recommendations: (1) "supervision at all times secondary to safety issues" [Adm.Rec. 135, 140]; (2) physical therapy indication for his limited range of motion in both shoulders and for strengthening of the right upper extremity after surgery; (3) follow up of neuropsychology for behavioral problems and depression; (4) follow up with a hepatologist for work up of his neutropenia and thrombocytopenia. His discharge diagnosis was: (1) status post traumatic brain injury with subdural hematoma, epidural hematoma and subarachnoid hemorrhage; (2) neutropenia and thrombocytopenia, of unknown etiology; (3) depression; (4) status post right humerus orif with right iliac crest bone graft; and (5) high frequency hearing loss.
Claimant was prescribed Paxil for his depression, inter alia, but drug therapy was discontinued on account of nausea. Before discharge from Touro, the anti-depressant drug Zoloft was administered, however, such medication was refused by claimant after two days because of his belief/paranoia that the facility was contributing to his mental decline and the medication would not help. (Adm.Rec. 1343].
Following a seizure on June of 1997 Martin was transported via ambulance to East Jefferson Hospital Emergency (EJH) room at 7:50 a.m. [Adm.Rec. 1703. Because of his confusion and his vital signs, he was transported to the nearest hospital. [Adm.Rec. 174]. EJH emergency room physicians noted abrasions on his right shoulder and back. [Adm.Rec. 171]. Cerebryx 1.0 gram and Activan 1.0 gram were administered intravenously. [Adm.Rec. 170]. Chart notes indicate that he was very agitated and uncooperative at times. At 10:05 a.m., he had a seizure in the emergency room that lasted about 5 to 6 minutes. Further seizure activity was noted at 11:30 a.m. [Adm.Rec. 172, 179]. He was diagnosed with seizures and discharged to his brother at 2:30 p.m. Dilantin 100mg was prescribed, three times a day. Its use was explained to claimant and his brother. [Adm.Rec. 173, 186]. The records reveal that the claimant had difficulty adhering to orders to follow his prescription drug regimen which was at all pertinent times in effect for the purpose of controlling and/or moderating his seizures/seizure disorder.
Cerebryx is indicated for short-term IV or parenteral administration when other means of phenytoin [i.e., active ingredient in Dilantin] administration are unavailable or inappropriate. It is used for the control of generalized convulsive status epilepticus and prevention and treatment of seizures occurring during neurosurgery. It can also be substituted, short term, for oral phenytoin. PDR 55, at 2422.
Both the claimant and his brother went as instructed by the nurse to EJH's social services and were given instructions regarding how to apply for financial aid including Medicaid and Social Security Disability. The chart entry from social services indicates that Martin's brother informed the office that he had begun that slow process and planned to continue the process of applying for financial assistance for his brother. [Adm.Rec. 186].
On August 14 1997, Dr. Gary Glynn, the claimant's board certified physical medicine and rehabilitation specialist opined regarding the claimant's physical and mental conditions:
Although he has shown substantial improvements in the area of the brain injury, he still has significant cognitive deficits relative to insight and some higher level skills. As a result of this problem, he has not been completely compliant with recommendations to follow up with his orthopedic surgeon.
Nonetheless, the problem with the fractured humerus also creates limitations for him.
On a cognitive basis alone, I think that it is virtually certain that Mr. Martin could not obtain and sustain competitive employment . . . . [Rec.Doc. No. 190].
The claimant was referred by Disability Determinations Claims Examiner, Glenda Kelly, to Dr. Scuddy F. Fontenelle III in February 1999 for psychological evaluation. At the time the claimant was living with his brother in Metairie and did not drive because of his seizure disorder. [Adm.Rec. 206]. His complaints were: (1) seizure disorder (i.e., he reported experiencing black outs, memory loss, and is not able to drive and automobile); (2) headaches, Depression and difficulty adjusting to life; and (3) head injury because of his fall aboard ship. [Adm.Rec. 206-07]. As a result of testing on February 8, 1999, Dr. Fontenelle reported claimant's scores: (1) WAIS-R fullscale I.Q. of 84 indicating verbal and performance skills within the Dull Normal range. [Adm.Rec. 207]. Some difficulty was noted in relating his background history. Also observed was "significant weakness and limitation associated with educations skills." [Adm.Rec. 208]. Reading and spelling skills were extremely weak at the 3rd and 4th grade levels, with math calculation skills at the 5th grade level.
Dr. Fontenelle opined that such substantial deficiencies in acquired knowledge reinforces the notion that Martin experiences characteristic features of Developmental Learning Disability. He further observed that the claimant needs someone to assist him in meeting his financial needs, to maintain stability in a place of residence, and to assist him in getting to his doctor's appointments. Dr. Fontenelle diagnosed: Axis I: Depressive Disorder; Axis II: Dull Normal Intelligence/Probable Developmental Learning Disability; and Axis III: Seizure Disorder/Head Injury. Dr. Fontenelle stated that the claimant showed "significant disruption and limitation in social skills due to neurological problem." He further recommended that Martin maintain his medication (i.e., Dilantin) for his seizure disorder as directed by his physician, and consult a mental health professional regarding his depression disorder. [Adm.Rec. 209].
Dr. Fontenelle specifically found that insofar as dealing with the public, dealing with work stress, functioning independently, and ability to maintain attention/concentration, Martin had poor to no ability. [Adm.Rec. 211]. Dr. Fontenelle's examination of this claimant was approximately two and a half years post-accident.
Another consult, Dr. D'Souza noted Martin's seizure disorder and opined that his primary limitations are related to his seizures, "which have been poorly controlled." [Adm.Rec. 218].
In addition to his cognitive deficiencies noted above, Dr. Wilmot Ploger, an orthopaedist, also consulted by Disability Determinations Services, reported that X-Rays of the shoulder and humerus revealed a healed fracture of the humerus fixed with a plate and eight screws. He noted evidence of a prior intramedullary rodding of the humerus and degenerative changes of the right glenohumeral joint. He found a permanent limitation of motion of the shoulder resulting from post traumatic arthritic changes involving that joint. Additionally, he noted weakness as a result of the atrophy and probable loss of the deltoid muscle from intramedullary nailing. Because of these physical limitations, Dr. Ploger opined that Mr. Martin should avoid any occupation in which would involve repetitive overhead work with the upper right extremity and limited lifting and carrying to 25 or 30 pounds. [Adm.Rec. 195].
Dr. D'Souza, Disability Determinations Services' neurological consult, opined that because of his head injury and consequent seizures, the claimant should never work where climbing, balance, moving machinery, heights or extreme temperatures are involved. Dr. D'Souza further found that Mr. Martin should lift only 25 pounds on account of his shoulder injury.
To recap, prior to the injuries which occasioned the instant Title II application, Martin worked for twenty-two years, i.e., two years in the the Marine Corps and twenty years aboard vessels as a merchant mariner. Martin's work history alone belies any suggestion that he either suffers from a poor work ethic or that he is a malingerer. On his last hitch on a vessel operating near Guam, the claimant suffered a severe and traumatic closed head injury in November of 1996, was "medi-vac'ed" to Tripler Airforce Base in Guam, where he underwent three surgical procedures to the head including open brain surgery. According to his treating physicians, Martin suffers with significant cognitive deficiencies, memory loss, seizures which have not been controlled with medication, and depression, inter alia. The claimant is on Dilantin 100mg, 3X a day, is diagnosed with a seizure disorder secondary to his shipboard fall and brain surgery depression, anxiety, and various physical limitations due to shoulder surgery and arthritic changes. His physical limitations due to shoulder joint post traumatic arthritic changes include weakness of the upper extremity atrophy and/or complete loss of the deltoid muscle due to nailing. His seizures, which remain uncontrolled and depression pose various and sundry significant environmental restrictions, to wit: no heights, no climbing, no moving machinery, no extremes in temperature, no stress, no positions which require either physical or mental balance. Martin's medical diagnoses also compelled the following conclusions by medical professionals regarding his functional limitations/inabilities: (1) inability to deal with the public; (2) inability to interact with supervisors; (3) inability to deal with stress; (4) inability function independently; and (5) inability to live alone or at home independently. The claimant must visit the doctors for continuing psycho and physical therapy, to follow up his many diagnosed medically determined impairments and his treatment records uniformly reflect that he requires assistance in also doing that.
II. PROCEDURAL BACKGROUND
It is against that backdrop that the Commissioner responded to claimant's motion for summary judgment with a motion to reverse the ALJ's decision and to remand. The Commissioner suggests that additional consults, and updated medical evidence are necessary to determine disability in this case which involves the time period of from July of 1997 to the date of decision, a year or so in the past.
No further explanation was submitted by the Commissioner explaining either the necessity or materiality of additional evidence to be taken over two years post-decision and four years post-accident. No new medical or other evidence has been brought to this Court's attention and the requisite showing of materiality which would argue in favor of remand taking additional evidence and rehearing is likewise absent.
In this particular case, it should not take five stabs at putting the information together (i.e., all the severe impairments and concomitant undisputed exertional and nonexertional limitations), and discerning disability status. Mr. Martin has already been stabbed enough.
Martin's July 9, 1997 application for benefits was denied on December 16, 1997. His March 19, 1998 Request for Reconsideration was denied approximately three weeks later on April 8, 1998. Pursuant to his April 18, 1998 for a hearing, his case was heard before ALJ Michael S. Hertzig on January 13, 1999. On May 27, 1999, Notice of Unfavorable Decision issued. [Adm.Rec. 6-24].
Based on the review of the medical evidence as a whole, the ALJ's findings included that claimant's allegation that he is wholly unable to work was an exaggeration since the medical evidence revealed only mild functional limitations. Based on the ALJ's assessment of the claimant's credibility, Dr. Fontenelle's assessment was totally rejected for the reason that it was based almost entirely upon assertions made by the claimant. At step two of the five-step sequential analysis, claimant's status-post head injury, seizure disorder, and status post right humeral fracture were determined to be severe impairments within the meaning of Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985) and SSR 96-3p.
The ALJ rejected the allegation of any mental impairment, stating inter alia, that the claimant "has at no time been treated for a mental impairment which would suggest an inability to deal with others or respond appropriately to direction." [Adm.Rec. 15].
At step 3, the ALJ further determined without any analysis or discussion of claimant's medically determined severe impairments vis a vis the listing requirements, that the claimant's impairments did not meet or equal any impairment in the Listing of Impairments of Appendix 1, subpart P, Part 404 of 20 C.F.R. Nevertheless, it was determined that such severe impairments prevented him from performing his past relevant work. Recognizing that it was the Commissioner's burden to demonstrate that the claimant had retained the functional capacity to engage in gainful employment, the ALJ determined that this burden was met and that the claimant had the residual functional capacity to perform light exertional level work with no climbing, balancing, working around moving machinery, at heights or in extreme temperatures. It was further determined that the "Grids" applied to preclude a finding of disability in Martin's case, and that he was not and had not been disabled at any time through the date of decision. [Adm.Rec. 15-16].
On July 22, 1999, Martin appealed the unfavorable decision to the Appeals Council. On June 16, 2000, Martin's appeal was denied. The decision is ripe for judicial review.
III. Statement of Issues on Appeal
The Commissioner concedes much in responding to claimant's motion for summary judgment with a proposed order reversing the ALJ's decision and further seeking remand. Martin's request for judicial review argues that the Commissioner's decision, given the record as whole, is not based upon "substantial evidence" specifically citing the following errors: (1) it was error to find Martin has not been under a "disability" since he is and has been disabled as defined by the Social Security Act; (2) it was error to find Mr. Martin's assertions as to functional limitation and complete inability to do work not supported by the record evidence and not credible since his assertions are amply supported by the record evidence and thus, credible; (3) it was error to find that Mr. Martin has the residual functional capacity to perform light exertional work with no climbing, etc., because medical evidence uniformly reflects that the claimant suffers from a seizure disorder uncontrolled by his medication, has poor or no ability to deal with the public, interact with supervisors, deal with stress, or function independently and with such limitations there are no jobs which he can perform; and (4) it was error to apply the Grids in this claimant's case and to determine that there are a significant number of jobs in the national economy that he is capable of performing, when there are no jobs available to an individual with such significant exertional and non-exertional limitations.
Claimant here refers to Dr. Glynn's report, which was not rejected by the ALJ, which states, "on a cognitive basis alone, I think it is virtually certain that Mr. Martin could not obtain and sustain competitive employment." [Adm.Rec. 190-91].
See Claimant's Motion for Summary Judgment and Memorandum in Support. [Fed.Rec.Doc. No. 10].
IV. ANALYSIS
A. Standards of Review
The function of this Court on judicial review is limited to determining whether there is "substantial evidence" in the record, as a whole, to support the final decision of the Commissioner as trier of fact, and whether the Commissioner applied the appropriate legal standards in evaluating the evidence. See 42 U.S.C. § 405(g); Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993); Carriere v. Sullivan, 944 F.2d 243, 245 (5th Cir. 1991); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990); Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993).
This premise guides the Court's determination of the specific issues raised by the plaintiff in this case.
"Substantial evidence" is that which is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); and Spellman, 1 F.3d at 360. The evidence must be more than a scintilla but may be less than a preponderance. Id.
A district court may not try the issues de novo, reweigh the evidence or substitute its own judgment for that of the Commissioner. Ripley, 67 F.3d at 555; Spellman, 1 F.3d at 360; and Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). It must, however, scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence exists to support it. Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992); Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990); Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). Any of the findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Ripley, 67 F.3d at 554.
The Commissioner is entitled to make any finding that is supported by substantial evidence, regardless of whether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992).
B. Entitlement Disability Benefits under the Act
To be considered disabled and eligible for disability benefits under the Act, the plaintiff must show that he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has promulgated regulations that provide procedures for evaluating a claim and determining disability. 20 C.F.R. §§ 404.1501 to 404.1599 Appendices, §§ 416.901 to 416.998 (1995). The regulations include a five-step evaluation process for determining whether an impairment prevents a person from engaging in any substantial gainful activity. Id. §§ 404.1520, 416.920; Greenspan v. Shalala, 38F.3d 232, 236 (5th Cir. 1994); Moore v. Sullivan, 895 F.2d 1065, 1068 (5th Cir. 1990). The five-step inquiry terminates if the Commissioner finds at any step that the claimant is or is not disabled. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The five-step analysis requires consideration of the following: First, if the claimant is currently engaged in substantial gainful employment, he or she is found not disabled. 20 C.F.R. §§ 404.1520(b), 416.920(b) Second, if it is determined that, although the claimant is not engaged in substantial employment, he or she has no severe mental or physical impairment which would limit the ability to perform basic work-related functions, the claimant is found not disabled. Id. §§ 404.1520(c), 416.920(c). Third, if an individual's impairment has lasted or can be expected to last for a continuous period of twelve months and is either included in a list of serious impairments in the regulations or is medically equivalent to a listed impairment, he or she is considered disabled per se ( i.e., without consideration of vocational evidence). Id., 404.1520(d), 416.920(d). Fourth, if a determination of disabled or not disabled cannot be made by these steps and the claimant has a severe impairment, the claimant's residual functional capacity and its effect on the claimant's past relevant work are evaluated. If the impairment does not prohibit the claimant from returning to his or her former employment, the claimant is not disabled. Id. §§ 404.1520(e), 416.920(e). Fifth, if it is determined that the claimant cannot return to his or her former employment, then the claimant's age, education and work experience are considered to see whether he or she can meet the demands of a significant number of jobs in the national economy. If the claimant cannot meet the demands, he or she will be found disabled. Id. §§ 404.1520(f)(1), 416.920(f)(1). To assist the Commissioner at this stage, the regulations provide certain tables that reflect major functional and vocational patterns. When the findings made with respect to claimant's vocational factors and residual functional capacity coincide, the rules direct a determination of disabled or not disabled. Id. § 404, Subpt. P, App. 2, §§ 200.00-204.00, 416.969 (1994) ("Medical Vocational Guidelines").
The claimant has the burden of proof under the first four parts of the inquiry. Id. If he successfully carries this burden, the burden shifts to the Commissioner to show that other substantial gainful employment is available in the national economy, which the claimant is capable of performing. Greenspan, 38 F.3d at 236; Kraemer v. Sullivan, 885 F.2d 206, 208 (5th Cir. 1989) When the Commissioner shows that the claimant is capable of engaging in alternative employment, "the ultimate burden of persuasion shifts back to the claimant. Id.; accord Selders, 914 F.2d at 618.
The Court "weigh[s] four elements of proof when determining whether there is substantial evidence of disability: (1) objective medical facts; (2) diagnosis and opinions of treating or examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) his age, education, and work history." Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995). "The Commissioner, rather than the courts, must resolve the conflicts in the evidence." Id.
C. Medical Opinions of a Treating Source.
As to medical opinions of a "treating source," the ALJ must follow the guidelines set forth in 96-2p to determine whether "controlling weight" should be given such opinions. These guidelines are: (1) the opinion must come from a "treating source;" (2) the opinion must be a "medical opinion;" (3) the treating sources medical opinion must be "well supported" by "medically acceptable" clinical and laboratory techniques; and (4) even if supported, the opinion must not be inconsistent with other substantial evidence. Even if the ALJ finds that the treating source medical opinion is not entitled to controlling weight, that does not mean that the opinion can be rejected. "Treating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 C.F.R. §§ 404.1527 and 416.927." (SSR 92-2p) The factors provided in 20 C.F.R. § 404.1527 and 416.927 include: (1) Examining relationship; (2) Treatment relationship, length of treatment, frequency of examination, nature and extent of relationship; (3) Supportability; (4) Consistency; and (5) Specialization.
As to medical opinions of a specialist regarding the issues, they are generally accorded more weight than the opinions of a source who is not a specialist. 20 C.F.R. §§ 404.1527(d)(5), 416.927(d)(5). However, specialization is only one of several factors considered in the evaluation of medical opinions. 20 C.F.R. §§ 404.127(d)(1)-(6), 416.927(d)((1)-(6). More weight is given to opinions supported by specific explanations and clinical findings and which are consistent with the record as a whole and an ALJ need not give weight to medical opinions not supported by clinical findings. 20 C.F.R. §§ 404.1527(d)(3), (4), 416.927(d)(3), (4).
Additionally, no special significance is accorded to the source of an opinion on issues reserved to the Commissioner, such as whether impairments meet or equal the requirements for impairments in the Listing. Where there is conflicting evidence regarding an issue reserved for the Commissioner, the Commissioner has the responsibility to resolve that conflict. The final decision on whether a claimant is disabled for purposes of the Act is a legal one rather than a medical one, and that determination may be made only by the Commissioner. 20 C.F.R. § § 404.1527(e)(1), (2), 416.927(e)(1), (2); see also Tamez v. Sullivan, 888 F.2d 334, 336 n. 1 (5th Cir. 1989); and Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990).
In summary, the Commissioner has considerable discretion in assigning weight to medical opinions and is free to reject the opinion of any physician when the evidence supports a contrary conclusion. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d), (e); see also Greenspan, 38 F.3d at 237 (holding that the Act empowers the Commissioner to analyze the physicians' testimony and when substantial evidence supports the ALJ's decision to disregard a physician's conclusions, that basis alone is enough to survive judicial review); Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995); Spellman, 1 F.3d at 364; Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990).
The Commissioner may give less weight to a physician's opinion when the physician's opinion is so brief and conclusory that it lacks strong persuasive weight, is not supported by medically acceptable clinical or laboratory diagnostic techniques, or is otherwise unsupported by the evidence. Leggett, 67 F.3d at 566; Spellman, 1 F.3d at 364.
D. Discussion of the Issues.
The only issue left up to discussion in this case is whether the Court should remand Martin's case for the purposes of taking additional evidence and rehearing by the ALJ. It is a foregone conclusion that the decision of the Commissioner should be reversed on the bases of both disregard of the applicable regulations and on paucity of evidence supporting the ALJ's decision in this case.
Not the least of such errors includes application of "the Grid" in a case in which there are indisputedly significant nonexertional, as well as exertional limitations, which preclude reliance on "Grid Rules." The medical-vocational grid at 20 C.F.R. pt. 404, subpart P, appendix 2, measures whether a person is disabled based on his or her age, education, and work experience. An exertional limitation is one imposed by the claimant's impairments, which affect his ability to meet the strength demands of a job. 20 C.F.R. § 404.1569a(a). When determining that the claimant can perform a given type of work, the ALJ must find that the applicant can meet the job's exertional requirements on a sustained basis. Carter v. Heckler, 712 F.2d 137, 142 (5th Cir. 1983). A nonexertional impairment affects the claimant's ability to meet the non-strength demands of job and includes mental and emotional impairments, manipulative impairments, and the like. 20 C.F.R. § 404.1569a(c)(1). Residual functional capacity (RFC) measures what the claimant can still do despite his limitations. 20 C.F.R. § 404.1545(a). It is an assessment "based upon all of the relevant evidence" including the claimant's own descriptions of limitations that go beyond the symptoms of the impairment, such as pain, observations of treating/examining physicians, including medical records; and observations by other relevant witnesses. Id. "The adjudicator must consider all allegations of physical and mental limitations or restrictions and make every reasonable effort to ensure the file contains sufficient evidence to assess RFC. Social Security Ruling 96-8p. Use of the "Grid Rules" is appropriate when it is established that the claimant suffers only from exertional impairments, or that the claimant's nonexertional impairments do not significantly affect his residual functional capacity. Crowley v. Apfel, 197 F.3d 194, 199 (5th Cir. 1999). If a claimant cannot perform his past work and suffers nonexertional impairments that prevent him from performing a full range of other available work, the Secretary must produce expert vocational testimony or similar evidence to establish that jobs exist in the national economy that the claimant can perform. See Loza v. Apfel, 219 F.3d 378, 399 (5th Cir. 2000). It would be a real stretch here, to conclude that Mr. Martin's non-exertional impairments were merely slight abnormalities of minimal effect on his ability to work.
Absent from this record is medical evidence which would support a finding that Mr. Martin is capable of getting a job and performing any gainful employment at any level on a sustained basis. Martin's treatment records and physician's assessments clearly recognize his need for 24 hour supervision for any number of reasons, including his diagnosed seizure disorder, to ensure claimant follows his prescription drug regimen as ordered by the doctors, and other safety issues indicated in his case. Treating hospitals, i.e., Tripler, Touro, and EJH, only released Mr. Martin to follow up care from another hospital or to the care of family members (i.e., his mother and/or his brother), advising 24 hour supervision and/or recognizing that the patient should not live alone.
Martin's significant cognitive deficiencies were addressed by several treating physicians, not just by Dr. Fontenelle. Drs. Bick, Hauck, and Gary Glynn at Touro Infirmary recommended supervision at all times (i.e., "24 hour supervision") secondary to safety issues, as well as neuropsychology for Martin's behavioral problems and depression. In summation, Dr. D'Souza reported in March of 1999 that claimant's "primary limitations are related to his history of seizures which have been poorly controlled."
See, Touro Infirmary's Discharge Summary [Adm.Rec. 135-36]. Dr. Gary Glynn opined that Martin had "significant cognitive deficits" which accounted for his inability to be compliant with the instructions/order of his treating physicians. He further noted that on a cognitive basis alone, the claimant could neither obtain nor sustain competitive employment. Dr. Glynn further doubted the possibility of any success in a vocational program because his behavioral issues may similarly preclude his success even there. [Adm.Rec. 190-91].
Adm.Rec. at 218.
A district court has the authority, based upon the pleading and the transcript, to reverse the Commissioner's judgment. See 42 U.S.C. § 405(g); and McQueen v. Apfel, 168 F.3d 152, 156 (5th Cir. 1999). In this particular case, the Court has been invited to do so by the Commissioner. However, in addition the defendant seeks remand for the purposes of obtaining updated medical expert testimony to assist the ALJ in determining the claimant's exertional and nonexertional limitations.
See, Defendant's Motion to [Reverse and] Remand [Fed.Rec.Doc. No. 12], moving to reverse the ALJ's decision and to remand pursuant to the fourth sentence of § 405(g) "so that the ALJ can obtain updated medical evidence and testimony from a medical expert to assist him in identifying plaintiff's exertional and nonexertional limitations . . . ." Id., at 1-2.
A court may "at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." Id. In Melkonyan v. Sullivan, 501 U.S. 91, [ 501 U.S. 89] 111 S.Ct. 2157, 2159 (1991) the Supreme Court made it clear that "[a] district may remand a final decision of the Secretary only as provided in sentences four and six of 42 U.S.C. § 405(g)," to wit:
in conjunction with a judgment affirming, modifying, or reversing the Secretary's decision (sentence four), or in light of additional evidence without any substantive ruling as to the correctness of the Secretary's decision, but only if the claimant shows good cause for failing to present the evidence earlier (sentence six). The conclusion that Congress intended to so limit courts' authority to enter remand orders is dictated by § 405(g)'s language, which explicitly delineates only two circumstances under which remands are authorized, and is supported by § 405(g)'s legislative history.Id.
The fourth sentence of section 405(g) provides:
The court shall have power to enter, upon the pleadings and transcript of the record, judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for rehearing.
The sixth sentence of section 405(g) provides:
The court may, on motion of the Secretary made for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding; and the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or his decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based.
Implicit in the materiality requirement is that new evidence relate to the time period for which benefits were denied. Particularly considering the fact that the defendant points to no new medical evidence, it is doubtful that any such evidence could possibly relate to the time period for which benefits were denied in this case (i.e., the time period pre-dating the ALJ's decision in this case).
In any event, the defendant has moved for remand pursuant to sentence four which permits reversal, etc. and remand for purposes of rehearing and there is no mention of taking new evidence, medical or otherwise. Also absent in this case is the requisite showing of good cause for failure to incorporate such evidence.
The Commission's disregard for its own standards does not constitute good cause for the failure to incorporate evidence which is only now perceived as necessary. Mr. Martin's application for benefits was denied four times at the administrative level: (1) his initial application was denied; (2) his application for reconsideration was denied; (3) pursuant to an administrative hearing his applications for benefits were denied by the ALJ; and then, (4) the Appeal's Council denied his applications and adopted the ALJ's decision based on its review of the administrative record. Throughout the pendency of his case at the administrative level, Mr. Martin's physicians opined severe and debilitating nonexertional and exertional impairments which would preclude his gainful employment, stemming from his seizure disorder, in addition to significant cognitive deficiencies, behavioral issues, inter alia.
The record before this Court evinces no good cause for failure to adduce additional material medical evidence in the prior proceedings at some point during the four level administrative review. Disregard of the applicable standards and regulations does not constitute cause for failure to incorporate additional evidence. Nor does the record evince any other good cause for that failure.
Owing to errors at the administrative review level, Martin has been without disability benefits and supplemental income for approximately four years. Considering that the Commissioner's response to the claimant's motion for summary judgment was a Motion to Reverse, inter alia, that substantial evidence in the record does not support the ALJ's decision that the claimant can perform other work, and that the extensive array of medical evidence from claimant's treating physicians which presently constitutes the record in this case, and which evidence indicates that on the basis of claimant's medically determined impairments/limitations, he is neither capable of obtaining nor sustaining employment, it is highly improbable that the Commission could sustain its burden at step five of the sequential analysis, even with the assistance of a vocational expert's testimony. Accordingly, the Court REVERSES the Commissioner's determination in this case and REMANDS the case with instructions for the Commission to GRANT Martin's application and to calculate disability benefits due him.
The medical evidence in this case describes a whole panoply of injuries, impairments, ailments, touching on wide a variety exertional and nonexertional impairments including, but not limited to significant cognitive impairments. The only reports which imply that the claimant's seizure disorder would not preclude the claimant from working are the one-time neurologic consult October 1997 report of Dr. Ploger (Adm. Rec. at 194-195) and Dr. D'Souza October 1997 neuro-psychiatric evaluation (Adm. Rec. 192-193). Dr. Ploger stated that it was his opinion that Martin should avoid any occupation in which he would have to do repetitive overhead work with the right upper extremity and lifting and carrying should be limited to 25 or 30 pounds. His statement of opinion is hardly conclusive since he examined only one aspect of the claimant's many problems, that is, the claimant's orthopedic impairments. Turning the October 24, 1997 neuropsychiatric evaluation of Dr. D'Souza, he simply described claimant's impairments as continuing problems related to his right arm with pain, particularly with movement and that the claimant is being followed by an orthopedic surgeon. [Adm. Rec. at 192]. On the one hand without stating what, if any, psychological testing was administered and/or any results obtained, Dr. D'Souza concluded that there was at that moment no evidence of a thought disorder, no impairment of cognitive functions, claimant's judgment and insight were fair, and his memory function is unimpaired. However, he also concluded that the claimant's intellect was slow and suggested that may possibly related to his educational level without any further inquiry or explanation. He also opined that the claimant did suffer from a seizure disorder which was poorly controlled, related to claimant's noncompliance with medication and alcohol use. Dr. D'Souza further noted the impression that claimant's memory difficulties were related to a poor attention span and poor concentration. Finally, Dr. D'Souza recognized limitations from an orthopedic standpoint regarding the use/continuing pain in his shoulder and limitation of movement. Dr. D'Souza did not suggest one way or the other that the claimant could resume any work in his October 1997 report. The RFC assessment completed by a non-treating, non-examining physician on 11/4/97 [Adm. Rec. 196-201] related a primary diagnosis of "Osteoarthritis (Traumatic) Right Shoulder" and no other (i.e., no secondary diagnosis and no other alleged impairments). [Adm. Rec. at 196]. Apparently, even Dr. D'Souza's diagnosis of "seizure disorder" was ignored. Other than heights, no evironmental limitations were noted. Despite the fact that the claimant had a seizure disorder and was on Dilantin three times a day, the RFC assessment noted that claimant be exposured to extremes in temperature (cold and heat), poor ventilation, and the hazards of working with and around machinery. [Adm.Rec. 200]. In a February 1999 post-hearing consult/evaluation (neurologic only), Dr. D'Souza again noted that Martin had seizure disorder, the last one documented being one month prior to his consultation. He further noted memory problems in that the claimant could not give details of his seizures and most of the time such seizures were unwitnessed. Dr. D'Souza also noted that his history of alcohol use may contribute to claimant's seizures. The post-hearing RFC assessment finally took into account only one other impairment in addition to his right shoulder problem (i.e., claimant's seizure disorder noting that it had been poorly controlled). [Adm.Rec. 217-18].
Cf., McQueen v. Apfel, 168 F.3d 152, 156 (5th Cir. 1999) (citing Emory, 936 F.2d at 1095, which court refused to remand for further proceedings where the Commission failed to consider high probability and probably could not sustain its burden of doing so, and similarly reversing the judgment of the district court and remanding the case with instructions to the Commission to grant claimant's application and to calculate benefits); see also Western v. Harris, 633 F.2d 1204, 1206-07 (5th Cir. 1981) (reversing the judgment of the district court because in the sizable array of evidence demonstrated there was not substantial evidence to support the ALJ's conclusion that the claimant could perform sedentary work and the ALJ erred in placing the burden on the claimant to prove she could not perform other work at the fifth step of the sequential analysis). In the Western case, the Fifth Circuit pointed out that the statements regarding the claimant's residual functional capacity were incongruous with expert testimony that the claimant would not be able to perform any work. Id., at 1207.
Accordingly, and for all of the above foregoing reason's,
IT IS ORDERED that the Claimant's Motion for Summary Judgment is GRANTED;
IT IS FURTHER ORDERED that the Commissioner's Motion to Reverse and Remand for the purpose of taking additional medical evidence and further proceedings is GRANTED in part (i.e., the Motion to Reverse only is granted); and insofar as Remand for the purpose of taking additional medical evidence and further proceedings is sought, the Commissioner's motion is DENIED in pertinent part; IT IS FURTHER ORDERED that the captioned matter is REMANDED pursuant to sentence four of § 405(g) with instructions to GRANT Martin's applications for disability insurance benefits under Title II benefits of the Social Security Act and supplemental security income (SSI) and to calculate such benefits due him.