Opinion
CAUSE NO. SA-02-CA-1100-WRF
September 26, 2003
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
TO: W. Royal Furgeson, Jr., United States District Judge Pursuant to the informal referral in the above-styled and numbered cause of action to the undersigned United States Magistrate Judge and consistent with the authority vested in United States Magistrate Judges under the provisions of 28 U.S.C. § 636(b)(1)(B) and rule l(d) and (h) of the Local Rules for the Assignment of Duties to United States Magistrate Judges in the Western District of Texas, the following report is submitted for your review and consideration.
I. JURISDICTION
The Court has jurisdiction under 42 U.S.C. § 405(g) and § 1383(c)(3).
II. ADMINISTRATIVE PROCEEDINGS
This is an action to review a decision of the Commissioner of Health and Human Services under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Plaintiff, Felipe Martinez, instituted this action pursuant to 42 U.S.C. § 405(g) seeking review of the determination of Jo Anne B. Barnhart, the Commissioner of the Social Security Administration, that plaintiff was not disabled, and, therefore, not entitled to receive disability insurance benefits.
Plaintiff filed an application for benefits on February 14, 2000 alleging disability since December 31, 1997. The Social Security Administration dented the application both initially and upon reconsideration. On July 10, 2001, an Administrative Law Judge ("ALT') held a hearing, at which plaintiff was represented by an attorney. On November 28, 2001, the ALJ determined that plaintiff was not disabled. The Appeals Council considered contentions raised by plaintiff's representative and additional medical records from the Veterans Administration Medical Center ("VA") for January 3, 2000 to June 28, 2001, but denied plaintiffs request for review, making the determination of the ALJ the final decision of the Commissioner. Plaintiff has appealed the determination.
Transcript at 11, 76-79, 83.
Id. at 52-58, 60-63.
Id. at 21-51.
Id. at 11-18.
Id. at 4-6.
III. ISSUES
1. Whether substantial evidence supports the Administrative Law Judge's decision that plaintiff was not disabled under the Social Security Act.
2. Whether the decision comports with relevant legal standards.
IV. STANDARD OF REVIEW
In reviewing the Commissioner's decision denying disability or supplemental security income benefits, the Court is limited to a determination of whether the decision is supported by substantial evidence and whether the Commissioner applied the proper legal standards in evaluating the evidence. Substantial evidence is more than a scintilla, less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It must do more than create a suspicion of the existence of the fact to be established but "no substantial evidence" will be found only where there is a conspicuous absence of credible choices or no contrary medical evidence.If the Commissioner's findings are supported by substantial evidence, they are conclusive and must be affirmed. "The court does not re-weigh the evidence in the record, try the issues de novo, or substitute its judgment for the Commissioner's. even if the evidence weighs against the Commissioner's decision." Conflicts in the evidence are for the Commissioner to resolve. Four elements of proof are weighed in determining if substantial evidence supports the Commissioner's determination: (1) objective medical facts, (2) diagnoses and opinions of treating and examining physicians, (3) the claimant's subjective evidence of pain and disability, and (4) the claimant's age, education and work experience.
Martinez v. Chater. 64 F.3d 172, 173 (5th Cir. 1995).
Carey v. Apfel. 230 F.3d 131. 135 (5th Cir. 2000).
Id.
Martinez, 64 F.3d at 174.
V. ALPS FINDINGS AND PLAINTIFFS CONTENTIONS
At the time of the decision, plaintiff was a fifty-one year old male with the equivalent of a high school education. Plaintiff had past relevant work experience as a contract/self-employed house painter. According to the ALJ, plaintiff alleged disability beginning on December 31, 1997.To determine whether plaintiff met the criteria for disability, the ALJ found, at the first step, that plaintiffs alleged onset date was the day his contractual relationship to paint houses for a real estate agency ended. The ALJ found that plaintiffs records reflected low earnings in 1998, none in 1999, and 810, 914.54 for the time period from July to December 2000. Accordingly, the ALJ determined that plaintiff had engaged in substantial gainful employment in 200 as an interior house painter after his alleged disability onset date. The ALJ noted that plaintiffs periods of unemployment from 1997 to the time of the hearing were not due to disability.
Id. at 12.
Id.
Id.
The ALJ found, at the second step, that plaintiff had severe impairments due to post-traumatic stress disorder ("PTSD"), major depressive disorder, borderline personality disorder, diabetes mellitus, diabetic neuropathy, hypertension, and hyperlipidemia. The ALJ concluded at step three that plaintiff did not have an impairment or combination of impairments that met or equaled a listed impairment.
Id. at 15.
Id.
In making the determinations regarding plaintiff's alleged physical and mental impairments, the ALJ first considered plaintiff's testimony that he had served a ten-month tour in Vietnam during which he allegedly lost the hearing in his left ear. Plaintiff testified that he did not report the hearing loss to the VA because he felt the loss was minor in comparison to other things he witnessed in Vietnam. Plaintiff testified that he has generally worked as a self-employed painter and has earned as much as $33,000 in a year. In 1997, he earned $17,000, had a falling out with a real estate company, and lost business. Plaintiff reportedly earned little in 1998 and testified that he finds it difficult to deal with people. From July to December 2000, plaintiff did interior house painting as an employee of a repair and remodeling company.
Id. at 12.
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Plaintiff testified that he worked okay alone in vacant houses, but allegedly experienced difficulties when others began working along side him. Plaintiff reported that he had been looking unsuccessfully for other work. Plaintiff claimed that he had to work alone and "has to shut the world out." Plaintiff testified that after painting for twenty years, painting is the only work he knows. Plaintiff said that talking about his situation is uncomfortable because he has difficulty facing what has happened and because he is embarrassed. Plaintiff testified that there are people in his life for whom he is responsible. Plaintiff testified that his VA disability was first assessed at ten percent but was increased to one hundred percent after successful appeals. Plaintiff reported that the VA benefits would likely be reduced if he returns to work. Plaintiff testified that he has been hospitalized three times for problems associated with PTSD; the last hospitalization due to suicidal thoughts lasted seventeen days. Plaintiff testified that he has had diabetes for seven or eight years and has been "shaking" for the same period of time. The shaking is allegedly growing worse such that plaintiff is unable to hold things. Plaintiff testified that he is treated by doctors at the VA for his physical and psychological problems. Plaintiff indicated that he has a brace for his left knee and cannot lift his arms over his shoulders. Plaintiff testified that he spends the day sitting in his garage doing nothing and avoiding people. Plaintiff lives with his girlfriend, a child, and a friend who is also a Vietnam veteran. Plaintiff drives only when necessary and sleeps a lot during the day. Plaintiff testified that the primary reason he does not work is because he cannot get down on his knees.
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The ALJ also considered plaintiff's medical records. The ALJ found little documentary evidence of medical problems prior to 1998 and no evidence for 1998. On October 6, 1999, plaintiff was seen at the VA for restlessness and suicidal thoughts beginning in September 1998. Plaintiff was diagnosed with PTSD and a GAF of 65-mild symptoms. Plaintiff was admitted into the hospital on December 14, 1999, due to PTSD with depression. Plaintiff showed improvement, and he was prescribed 40 milligrams daily of Effexor for his depressive symptoms. Plaintiff was diagnosed with non-insulin dependent diabetes, placed on 10 milligrams of Glipizide twice daily, and referred for diabetic training. Plaintiff was discharged on December 22, 1999, and was to be followed-up by outpatient psychiatry on January 21, 2000. At the time of discharge, plaintiff was cooperative with good eye contact, alert, and mildly depressed with appropriate affect. Plaintiff's thought process was normal with no delusions or hallucinations. Plaintiff denied suicidal ideation.
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The ALJ considered the report of a consultative physical evaluation performed on April 24, 2000. The report indicates plaintiff was complaining of diabetes, PTSD, hypertension, and high cholesterol. Plaintiff reported that his medications included Simvastatin, Metaformin, Glipizide, Hydroxyzine, Citopram, Fosinpril, and Buspirone. Plaintiffs history was positive for alcohol consumption and smoking. The examination revealed that plaintiff was in no acute distress and he was able to get on and off the examination table without assistance or difficulty. Plaintiff was not using an assistive device. Plaintiffs blood pressure was reported as 160/100. An external ear examination was normal, and plaintiff was able to hear and understand normal conversational voices. Plaintiff was reportedly able to bend all the way over and get back up; had a normal gait and station; and was able to stand on heel and toes without difficulty. The examination revealed no evidence of effusion, inflammation, or swelling in any joints tested, and straight leg raising was negative. Motor strength was 5/5 in muscle groups tested and the sensory examination was normal, as was deep tendon reflexes, handgrip, fine finger movement, and ability to handle small objects. Range of motion in the extremities and spine was normal. Plaintiffs cerebellar functions appeared normal, and he was alert and oriented times three. Plaintiff was assessed with a history of PTSD, high cholesterol, diabetes mellitus, and hypertension under medical control. The report indicated that plaintiff had the ability to do work activities such as lift, carry, sit, stand, handle objects, move about, hear and speak, The report reflected the absence of end organ damage due to diabetes mellitus or hypertension.
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The ALJ considered a consultative psychological evaluation performed on April 28, 2000. The report indicated that plaintiff drove to the evaluation. Plaintiff reported that he had been depressed and had experienced flashbacks for the previous eight years. Plaintiff reported that he had been married twice and had two sons from the first marriage, four daughters from the second marriage, and a son with his girlfriend. Plaintiff admitted a history of consuming alcohol in excess but claimed he stopped drinking three years prior to the evaluation. Plaintiff described himself as unstable and grouchy. Plaintiff reported that he had been hospitalized twice for severe depression, anxiety, and thoughts of suicide. Plaintiff claimed to have crying spells and denied having any interests. Plaintiff reportedly slept for two to three hours, woke up, and then dozed. Plaintiff was unconcerned with whether his house was clean. Plaintiff said he was taking Hydroxyzine, Citalopram, and Buspirone. Plaintiff reported that he lived with his girlfriend and had been a house painter for eighteen and one-half years so he would not have to deal with people. Plaintiff complained that he had difficulty concentrating and felt distracted, forgetful, and preoccupied. Plaintiff reported seven to eight months of decreased libido and claimed to have been withdrawn from associating with people for the prior three years. Plaintiff claimed that he had not worked in the past one and one-half years. Although plaintiff preferred to be isolated and alone, the evaluator found plaintiff was friendly, cooperative, and talkative. He was found to be mildly to moderately depressed with appropriate affect. Plaintiff denied auditory hallucinations except during flashbacks. Plaintiffs speech was productive and spontaneous; he was relevant and coherent; and he was oriented to person, place, and time. Plaintiff was reportedly of average intelligence and could spell "world" backward and forward. Plaintiffs daily activities included arising between 5 and 7 a.m.; making coffee; sitting quietly with television on; getting a three year-old and a nine year-old ready and off to school; eating lunch; retrieving the three year-old from day care; spending the day watching television or listening to the radio; and retiring for bed at 10 p.m. Plaintiff claimed that at times he just sat quietly in the living room and did nothing. Plaintiff reportedly had one friend with whom he spent time. Plaintiff was found to be in a constantly decompensated state and was diagnosed with dysthymic disorder with melancholic features; PTSD-mild to moderate; and borderline personality disorder. His GAF was 45.
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Other medical evidence revealed that on September 29, 2000, plaintiff reported that he was getting enough exercise from work. On November 13, 2000, after moving a refrigerator, plaintiff complained of pain in his right groin and was assessed with a right inguinal hernia which was repaired in January 200 1. On January 22, 2001, the Department of Veterans Affairs issued a ratings decision reporting that, based on the guidelines, plaintiff was entitled to individual unemployability granted effective May 21, 2000, due to one hundred percent disability. The VA reported that in a September 28, 2000 examination, plaintiff had psychological stressors, traumatic combat in Vietnam, and inability to work. The VA noted that plaintiff had many nightmares, crying spells, and panic attacks.
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The ALJ considered January 23, 2001 progress notes indicating a diagnosis of diabetes mellitus, hypertension, PTSD, and hypercholesterolemia. Plaintiff reportedly walked for exercise but did not make nutritional changes or follow recommended diabetes diet principles. On January 24, 2001, plaintiff reported noncompliance with all medications for the prior two or three months. Plaintiff claimed that he had requested the medications from the clinic but did not receive them in the mail. Plaintiff reported drinking ten cups of coffee each day and smoking an average of one pack of cigarettes while drinking the coffee. Plaintiff denied alcohol consumption. Plaintiff was continued on Humulin and Metaformin for diabetes; restarted on Lisnopril, increased physical activity, and reduced salt intake for hypertension; restarted on Simvastatin and a diet low in fat/cholesterol for hyperlipidemia; instructed to stop smoking and decrease coffee intake; and encouraged to be proactive when he ran short of medication. On February 14, 2001, control of plaintiffs diabetes mellitus was reportedly improved.
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Id. at 15.
The ALJ considered a March 22, 2001 evaluation, at which plaintiff reported receiving insulin injections for the prior six months, increasing numbness in his legs extending below the knees, and some erectile dysfunction over the prior two years. Plaintiffs blood pressure was 140/90 and he was wearing a brace on the left leg. Plaintiff complained of pain in most joints but the examination revealed no edema, deformities of the joints, or swelling. No motor abnormality was noted but there was evidence of decreased sensation to the legs bilaterally. Plaintiff was diagnosed with diabetes mellitus, type 2, on insulin; diabetic neuropathy manifested by numbness of both lower extremities and some erectile dysfunction; and a history of PTSD with recurrent major depression, under current psychiatric care.
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Notes from May 15, 2001, reveal that plaintiffs diabetes was uncontrolled. Plaintiff reported that he had taken himself off insulin and returned to using Glypizide. Plaintiff walked two or three times daily; drink one beer periodically; and was eating poorly. Plaintiffs blood pressure was 130/82. The physical examination was normal, and plaintiff was reportedly doing well except for depression. Plaintiff was instructed on the importance of complying with diet and medication. On June 26, 2001, plaintiff claimed to be in compliance with his medications but admitted consuming alcohol on special occasions. His medications included Glipizide, Insulin Novolin, Lisnopril, Metaformin HCL, Pioglitazone, and Simvastatin,
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Having determined from the above evidence that plaintiff did not have an impairment or combination of impairments that met or equaled a listed impairment, the ALJ proceeded to the fourth step and considered plaintiffs residual functional capacity and whether plaintiff was able to do past relevant work, The ALJ found that plaintiff's allegations of symptoms and limitations were not totally credible. The ALJ concluded that objective medical evidence revealed no physical limitations and that the psychological symptoms would not preclude employment. The ALJ considered an August 3, 2001 letter from plaintiffs previous employer, Van's Repair and Remodeling, Inc., which indicated plaintiff was employed from June 26, 2000 to December 22, 2000. During that time, plaintiff was out sick one time for forty-eight hours. Plaintiff left his employment in December 2000 to have surgery, which the ALJ presumed was the right inguinal hernia repair, and subsequently informed the employer in February 2001 that he would not return to work. The employer reported that during his employment, plaintiff performed all duties required including sitting, standing, lifting, and kneeling. The ALJ noted that in late January 2001, the VA increased plaintiff's service-connected disability to one hundred percent. The ALJ also noted that plaintiff testified he was looking for work but admitted that his VA benefits would likely be reduced if he returned to work. Accordingly, the ALJ found that the issue of secondary gain existed. Because plaintiff began working for the repair and remodeling company shortly after he was assessed in April 2000 with a GAF of 45, the ALJ concluded the assessment of plaintiff's mental functioning was underestimated. With respect to VA's assessment of a one hundred percent service-connected disability, the A1J stated that the Social Security Administration was not bound by the assessment. But, the ALJ also questioned the credibility of the VA assessment because it was based on a September 2000 examination which erroneously concluded that plaintiff was unable to work. The Court noted that at the time of the examination, plaintiff was painting houses for the repair and remodeling company.
Id. at 16.
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The ALJ considered the Mental Residual Functional Capacity Assessments completed by the state agency medical consultants and concluded that because the assessments were supported by the medical evidence, they should be accorded substantial weight. Based on the assessments, the ALJ found that plaintiff had a residual functional capacity restricted by a "moderately limited ability" to: remember, understand, and carry out detailed instructions; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; make simple work-related decisions; complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; respond appropriately to changes in the work setting; and set realistic goals or make plans independently of others.
Id.
Id. at 17.
To determine whether plaintiffs residual functional capacity precluded his past work, the ALJ considered the testimony of the vocational expert that plaintiffs past relevant work was medium, skilled work. The vocational expert testified that a person with plaintiffs residual functional capacity could perform plaintiffs past relevant work as a self-employed house painter. The ALJ accepted this testimony and found, at step four, that plaintiff was not disabled for the purposes of receiving disability insurance benefits.
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On June 23, 2003, plaintiff filed a combined motion for summary judgment and memorandum in support, asking the Court to reverse the decision of the Commissioner and award benefits or, in the alternative, remand for a new hearing. Plaintiff identified one issue on appeal, namely, that because the ALJ applied an incorrect standard in determining plaintiffs residual functional capacity, the residual functional capacity findings are not supported by substantial evidence. On July 24, 2003, defendant filed a brief in support of the Commissioner's decision which denies plaintiff's allegations and asserts the ALJ's decision is supported by substantial evidence and correctly applies the relevant legal standards. On August 28, 2003, plaintiff filed a reply in support of his motion for summary judgment, essentially reiterating his arguments and questioning the applicability of case law cited by defendant.
Docket no. 15 at 11 Plaintiffs memorandum in support is attached to the motion for summary judgment and represents one document on the docket sheet in this case. The document is numbered consecutively with the motion for summary judgment being pages 1 and 2 and the memorandum being pages 3-11.
Id. at 3.
Docket no. 17.
Docket no. 20.
VI. ARGUMENTS AND CONCLUSIONS OF LAW
In this section the Court will discuss in greater detail the applicable legal standards before applying those standards to plaintiffs specific claims as raised in his brief.A. Entitlement to Benefits
Every individual who is insured for disability insurance benefits, has not attained retirement age, has filed an application for benefits, and is under a disability is entitled to receive disability insurance benefits. Each aged, blind or disabled individual who meets certain income and resources limitations is entitled to receive supplemental security income. The term "disabled" or "disability" means the inability 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. A person shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in significant numbers in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. B. Evaluation Process and Burden of Proof
42 U.S.C. § 423(a)(1)(1995).
Regulations set forth by the Commissioner prescribe that disability claims are to be evaluated according to a five-step process. A finding that a claimant is disabled or not disabled at any point in the process is conclusive and terminates the Commissioner's analysis. The first step involves determining whether the claimant is currently engaged in substantial gainful activity. If so, the claimant will be found not disabled regardless of his medical condition or his age, education, and work experience. The second step involves determining whether the claimant's impairment is severe. If it is not severe, the claimant is deemed not disabled. In the third step, the Commissioner compares the severe impairment with those on a list of specific impairments. If it meets or equals a listed impairment, the claimant is deemed disabled without considering his age, education, and work experience. If the impairment is not on the list, the Commissioner, in the fourth step, reviews the claimant's residual functional capacity and the demands of his past work. If he can still do this kind of work, he is not disabled. If he cannot perform his past work, the Commissioner moves to the fifth and final step of evaluating the claimant's ability, given his residual capacities and his age, education, and work experience, to do other work. If he cannot do other work, he will be found to be disabled. The claimant bears the burden of proof at the first four steps of the sequential analysis. Once he has shown that he is unable to perform his previous work, the burden shifts to the Commissioner to show that there is other substantial gainful employment available that claimant is capable of performing. If the Commissioner adequately points to potential alternative employment, the burden then shifts back to the claimant to prove that he is unable to perform the alternative work. C. Plaintiff's Claim in Appealing the ALJ's Decision
20 C.F.R. § 404.1520.
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
Id. at 564.
Anderson v. Sullivan, 887 F.2d 630, 632 (5th Cir. 1989).
Id., at 632-633.
Plaintiff asserts that the assessment of his residual functional capacity is not supported by substantial evidence because the ALJ relied on an incorrect standard in defining the term `'moderately limited." Specifically, plaintiff argues that the ALJ defined "moderately limited" as "satisfactory," a definition which "is not supported by any case law, regulation, statute, or reasoning." Plaintiff argues that the ALJ should have used the definition of "fair" which is defined on the Medical Assessment of Ability to Do Work-Related Activity (Mental) form as the "ability to function in this area is seriously limited but not precluded." The form is often completed by physicians to provide more detailed information about non-exertional limitations. Plaintiff contends that based on the ratings on a supplemental mental assessment form completed by state agency consultants, and relied upon by the ALJ in assessing plaintiffs residual functional capacity, "a moderate limitation would be one that is significant but not marked." Therefore, plaintiff argues, a "significant limitation would seem synonymous with a serious limitation" supporting the "use of the standard definition of `fair' and a finding that plaintiff was precluded from all work as the vocational expert testified." Plaintiff also suggests other definitions that "find logical support in case law, or in the established practices of the State Agency."
Docket no. 15 at 6.
Docket no. 15, exhibit A. The form also includes ratings for: "unlimited or very good" ability to function in this area is more than satisfactory; "good," ability to function in this area is limited but satisfactory; and "poor to none," no useful ability to function in this area. Id.
Docket no. 15 at 9.
See transcript at 126-28.
Docket no. 15 at 9.
Id.
Id. at 10.
Before addressing plaintiff's arguments, it is important to understand how the ALJ determined that plaintiff was capable of returning to his past relevant work. When assessing plaintiff's residual functional capacity, the ALJ found plaintiff was restricted only by nonexertional limitations due to his mental impairments. Specifically, based on forms completed by state agency consulting physicians, the ALJ found that plaintiff was restricted by the moderately limited ability to: remember, understand, and carry out detailed instructions; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; make simple work-related decisions; complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; respond appropriately to changes in the work setting; and set realistic goals or make plans independently of others. In determining whether plaintiff had the capacity to perform his past work as a house painter, the ALJ asked the vocational expert to consider these moderately limited restrictions. The ALJ posed two definitions for "moderate." The first definition, "the ability to function in that particular area is otherwise known as fair, and it means that the person can perform the activity satisfactorily some of the time," was described by the ALJ as the "more extreme meaning of the word moderate." The second definition posed was that "the person has a severe limitation, but is still able to do the function satisfactorily."
Transcript at 117-28.
Id. at 17.
Id. at 43.
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Id. at 43-44.
Id. at 44.
With regard to the first, "more extreme," definition, the vocational expert testified that a person would only be able to paint houses part-time. The expert opined that under the second definition, a person would be capable of full-time employment. The expert testified that under either definition, a self-employed painter would be less affected by the limitations. The expert explained:
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For instance, attendance is very important to an employer, but for an independent contractor, it needs to be done next week at 1:00 o'clock. The independent contractor is free to do it in the mId.dle of the night, he's free to do it anytime he wishes, the only stipulation is it's completed — the job is done at a certain time. So it eliminates really one of the limitations, the attendance. I certainly decreases the limitation of concentration for extended periods because the independent contractor is free then to quit when he can't concentrate, but then go back when he can. Half the problem of concentration is the extended period required in an eight hour day. So what I'm saying is that you stretch out your time and do it when you wish as an independent contractor. Without interruptions is somewhat lessened when you pick your own times. You can pick times when there will be less interruptions.
Id. at 45-46.
The expert did testify that an independent contractor would have more stress in making deals for work as well as in handling the end product and complaints. In response to questioning by plaintiffs representative, the vocational expert testified that if a person had "marked limitations" for ability to work in proximity to others without being distracted and for ability to interact with the general public, the person would be excluded from sub-contract work and would likely be excluded from all work. Relying on the vocational expert's testimony regarding moderately limited abilities, the ALJ concluded that plaintiff would be able to perform his past work as a contract/self-employed house painter.
Id. at 46-47.
Id. at 48-50.
Transcript at 18.
Turning to plaintiffs argument that the wrong standard was applied and that "moderately limited" should be defined as `'ability to function in this area is seriously limited but not precluded," the Court first notes the vocational expert did not opine that a house painter would be precluded from all work under any definition suggested by the ALJ. Rather, the expert testified that, under either definition for "moderate," a self-employed painter would be less affected by restrictions caused by moderately limited abilities. Thus, the ALJ did not necessarily rely on one definition over the other in finding that plaintiff could perform his past relevant work. To the extent the ALJs decision is based solely on defining "moderately limited" as the ability to function satisfactorily, because there is no clear definition or case law on the matter, the Court cannot conclude the ALJ relied on an incorrect standard. The Social Security regulations do not define "moderate." But, Listing 12.00 of the Social Security regulations provides that:
Where we use "marked" as a standard for measuring the degree of limitation, it means more than moderate but less than extreme. A marked limitation may arise when several activities or functions are impaired, or even when only one is impaired, so long as the degree of limitation is such as to interfere seriously with your ability to function independently, appropriately, effectively, and on a sustained basis.
20 C.F.R. pt. 4C4, subpt. P, app. 1, listing 12.00C.
In this case, because ALJ derived the restrictions imposed on plaintiffs residual functional capacity from assessments indicated on a form promulgated by the Social Security Administration, which includes a category for "markedly limited," the Court presumes any definitions set forth in the regulations would be applicable. Thus, pursuant to Listing 12.00, "`moderately limited" cannot be a serious limitation, as plaintiff argues, because a "marked" limitation by definition is greater than a moderate limitation and seriously interferes with the ability to function.
See transcript at 126 (Form SSA-4734-FA-SUP).
The Court notes at least one circuit court has found the definition of "fair" is "essentially the same as the listing requirements' definition of "marked."' Cruse v. United States Dep't of Health Human Serv., 49 F.3d 614, 617 (10th Cir. 1995), But see Cantrell v. Apfel, 231 F.3d 1104, 1107-08 (8th Cir. 2000) (discussing Cruse but holding that "The word `fair' is both a measure of ability and disability. It is on the balance between poor ability to function and greater ability to function. A physician's use of the term `fair' does not, on it own, declare that the claimant cannot return to past work. Rather, the term `fair' requires a review of the entire record in order to judge whether the balance tips toward functional ability or toward disability."). If "fair" and "marked" are construed as synonymous terms, then pursuant to the definitions on theMedical Assessment of Ability to Do Work-Related Activity (Mental) form, see note 153 above, "moderate" would be most akin to "limited but satisfactory," one definition provided by the ALJ.
Plaintiff argues that some courts have defined "moderately limited" as meaning "the claimant is unable to perform the task up to a third of the time." The cases plaintiff cites as authority are from courts in the Third Circuit and are based on that court's decision in Morales v. Apfel. In Morales, the Third Circuit included the definition for "moderately limited" in a footnote to the section entitled "Facts" and explained that it had been provided in testimony from the vocational expert. No other information is provided about the source of the definition and, more importantly, the Third Circuit offers no opinion about the merits of the definition. Nevertheless, plaintiff cites two district court cases that have relied on Morales for the definition of "moderately limited." Based on a fair reading of Morales, the undersigned cannot conclude the Third Circuit intended the definition to be more than noted factual information. Because the district court cases plaintiff cites offer no analysis or explanation why Morales should be construed to provide a definitive definition for "`moderately limited," the undersigned finds them unpersuasive.
Docket no. 15 at 9.
225 F.3d 310 (3d Cir. 2000).
Id. at 315 n. 4.
The Court notes that in Morales, the Third Circuit reversed the ALJ's decision to deny benefits because the ALJ ignored the opinions of physicians that plaintiff was "seriously limited" or was rated to have "poor or no" abilities in many areas. Thus,Morales seems to suggest that the Third Circuit would not view "moderately limited" and "seriously limited" as synonymous ratings.
See Schuh v. Commissioner of Social Security, No. Civ. A. 01-676-KAJ, 2003 WL 21087132, at * 5 n. 9 (D. Del., May 6, 2003); Walls v. Barnhart, No. Civ. A. 01-2361, 2002 WL 485641, at * 6 (E. D. Pa., Mar. 28, 2002). In Schuh, when posing the hypothetical question to the vocational expert, the ALJ relied on information from forms like those at issue showing restrictions similar to those listed above for plaintiff. Schuh, 2003 WL 21087132 at * 5. Based on the expert's testimony that even with the mental restrictions, there was work available in the national economy, the ALJ found Schuh was not disabled. Id. at * 5-7. The district court granted the Commissioner's motion for summary judgment.Id. at * 8. In Walls, the ALJ also found, in part based on forms similar to those at issue, that the plaintiff was not disabled. Walls, 2002 WL 485641 at * 6, 7 n. 5. The district court reversed and remanded because the ALJ failed to give proper weight to contrary treating physician evidence and there was insubstantial evidence to support the ALJ's credibility assessments. Id. Neither district court, reversed on the ground that with "moderately limited" abilities, the claimant would be disabled from all work. Plaintiff also cited Fitts v. Massanari. No. CA-00-0624-BH-C, 2001 WL 530475 (S.D.Ala., May 7, 2001). Because no mental impairments were at issue, Fitts is not relevant to the disposition of the case at hand.
Finally, the Court notes that the Psychiatric Review Technique Form ("PRTF") completed by the state agency consultants indicates plaintiff had moderate limitations in activities of daily living and social functioning and was often deficient in concentration, persistence, and pace. These limitations are not sufficient to satisfy the requirements of a listed impairment such that all work would be precluded. The consultants' marks of "not significantly limited" and "moderately limited" on the mental assessment supplement, and relied on by the ALJ to describe plaintiff's residual functional capacity, are consistent with and support the limitations indicated on the PRTF. The opinions of the state agency consultants support the ALJ's decision. Plaintiff has cited no medical evidence contrary to the consultants' opinions.
Id. at 124.
See 20 C.F.R. pt. 404, subpt. P, app. 1, listing 12.04B, 12.06B, and 12.08B ("marked" and "frequent" satisfy listed impairment).
Transcript at 126-27.
In sum, the Court cannot conclude that the ALJ applied an improper standard when defining `moderately limited" as satisfactory. Because the ALJ's decision is supported by substantial evidence and comports with the proper legal standards, there is no error.
VII. RECOMMENDATION
The Court recommends that plaintiffs motion for summary judgment be DENIED and that the Commissioner's decision be AFFIRMED. The ALJ's report is supported by substantial evidence and correctly applies the relevant legal standards. Judgment should be entered for defendant; each side to bear its own costs.
Docket no. 15.
VIII. INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT/APPEAL
The United States District Clerk shall serve a copy of this Report and Recommendation on each and every party either (I) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to 28 U.S.C. § 636(b)(1) and Rule 72(b), FED. R. CIV. P., any party who desires to object to this report must serve and file written objections to the Report and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Report and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Am. 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985).
Acuna v. Brown Root Inc., 200 F.3d 335, 340 (5th Cir. 2000); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996).