Summary
holding that the new rules eliminating the obesity listing were applicable to the plaintiff's claim
Summary of this case from Parker v. Comm'rOpinion
Civil Action No. 3:00CV420
August 10, 2001
Bruce K. Billman, Counselors for Plaintiff.
Goan E. Evans, U.S. Attorney's Office, Counselors for Defendant.
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
This matter is before the Court on the Plaintiffs Motion for Summary Judgment and the Defendant's unilateral Motion to Remand the matter "for further administrative proceedings and development." (Def.'s Mot. to Remand). Plaintiff, Barbara Parker, seeks judicial review pursuant to 42 U.S.C. § 405 (g) of the final decision of the Defendant Commissioner denying her applications for a period of disability insurance benefits (DIB) and supplemental security income (SSI). The Commissioner's final decision is based on a finding by an Administrative Law Judge (ALJ) that the Plaintiff was not disabled as defined by the Social Security Act (Act) and applicable regulations.
For the reasons discussed below, it is this Court's recommendation that the Plaintiffs Motion for Summary Judgment be GRANTED in part and DENIED in part, that the Defendant's Motion to Remand be DENIED, and that the Commissioner's decision be REVERSED and REMANDED for additional proceedings.
Procedural History
The Plaintiff filed applications for SSI and DIB on February 29, 1996, alleging a disability onset date of March 30, 1993. (Record (R.) at 14, 83-85). The application was denied May 9, 1996, and though the Plaintiffs diabetes mellitus and obesity were noted, it was determined that she could return to her work as a mail processor. (R. at 66-67, 70-71). Following the initial denial, the Plaintiff supplied the Social Security Administration (Administration) with further evidence of her condition and requested a reconsideration of her claim. On June 20, 1996, she was again denied benefits. (R. at 68-69, 74-76). The Plaintiff timely filed a request for hearing by an ALJ on July 23, 1996. (R. at 77). A hearing before ALJ Jose R. Davila, Jr. was held June 19, 1997, and the ALJ's decision to deny the Plaintiff SSI and DIB was filed on September 26, 1997. (R. at 14-24).
Documentation of the Plaintiffs SSI claim was not included in the Record. However, a footnote at page i of the Record notes: "Exhibits SSI-1, SSI-2, SSI-3, SSI-4, SSI-5, and SSI-6 are not available for inclusion" which the Court accepts as sufficient substantiation that the claims were properly submitted. (R. at i).
Diabetes mellitus is "a chronic metabolic disorder in which utilization of carbohydrate is impaired and that of lipid and protein enhanced . . . characterized, in more severe cases, by chronic hyperglycemia, glycosuria, water and electrolyte loss, ketoacidosis, and coma." Stedman's Medical Dictionaiy 490 (Maureen Barlow Pugh ed., Lippincott, Williams, and Wilkins 27th ed. 1999).
The Plaintiff timely requested a review of the ALJ's decision. (R. at 9). The request was denied by the Appeals Council on November 9, 1999 (R. at 6), and the Plaintiff filed this complaint on July 6, 2000. (Pl.'s Compl. for Judicial Review). On October 23, 2000, Plaintiff filed a pleading entitled "Motion for Judgment" seeking judicial review and on December 13, 2000, the Defendant filed a motion for remand to which the Plaintiff objects.
The notice of the Appeals Council's decision to deny review was returned to the Council as undeliverable and it therefore never reached the Plaintiffs attorney. A new letter was sent to the Plaintiffs counsel on May 3, 2000, explaining the return of the original notice, and the Appeals Council noted: "however, the time limits for your further rights to appeal will commence the date of this notice." (R. at 5). Thus, the Plaintiff had not breached her sixty-day time limit to file in this Court.
Question Presented
Is the Commissioner's decision that the Plaintiff is not entitled to disability insurance benefits and supplemental security income supported by the application of the correct legal standard and substantial evidence on the record?
Standard of Review
In reviewing the decision of the Commissioner to deny benefits, the Court is limited to determining whether the decision was supported by substantial evidence on the record and whether the proper legal standard was applied in evaluating the evidence. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence is more than a scintilla, less than a preponderance, and is the kind of relevant evidence which a reasonable mind could accept as adequate to support its conclusion. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971); and Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)).
In order to find whether substantial evidence exists, the Court is required to examine the record as a whole, but may not "undertake to re-weigh the conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the Secretary." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). In considering the record as a whole, the Court must "take into account whatever in the record fairly detracts from its weight." Breeden v. Weinberger, 493 F.2d 1002, 1007 (4th Cir. 1974). The Commissioner's findings as to any fact, if the findings are supported by substantial evidence, are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. at 390. While the standard is high, where the ALJ's determination is not supported by substantial evidence on the record or where the ALJ has made an error of law, the district court must reverse the decision. Coffman v. Bowen, 829 F.2d at 517.
Medical Evidence
The majority of the medical evidence on the record is based on the results of the Plaintiffs medical exams related to a pregnancy in 1993. (R. at 128-201). On April 14, 1993, the Plaintiff gave birth with no recorded complications. (R. at 128-32). However, the attending obstetrician, J. Andrew Fastl, M.D., did note that the Plaintiff suffered from diabetes mellitus and cholelithasis. Id. The following month, the Plaintiff was admitted to Mary Washington Hospital for a scheduled cholecystectomy that was performed by Paulino D. Sambat, M.D. (R. at 133-34). Both Dr. Fantl and Dr. Sambat recorded the Plaintiffs weight as being excessive. Dr. Fantl described the Plaintiff as "obese" and noted her weight as 336 pounds. Id. Dr. Sambat noted her weight during her two visits following the procedure he performed as 311 1/4 pounds (June 4, 1993) and 313 3/4 pounds (June 18, 1993). (R. at 135). While medical evidence does not exist for the period prior to her pregnancy, the Plaintiffs weight condition was continually mentioned throughout the available records during the relevant time period. In fact, the Plaintiffs obesity was noted during an ultrasound on January 20, 1993, when the radiologist wrote: "Due to the patient's extreme size she was very difficult to image." (R. at 150).
Cholelithasis is the "presence of concretions in the gallbladder or bile ducts." Stedman's at 339.
A cholecystectomy is the "surgical removal of the gallbladder."Id. at 337.
On September 4, 1995, the Plaintiff was admitted to the Spottsylvania Emergency Center. (R. at 164). She complained of nausea (though she was not vomiting), headaches, and tension in her neck over a five-day period. Id. She was diagnosed with an anxiety reaction. Id. Her lungs, heart, and abdomen were all found to be "normal" and she was prescribed Xanax to control her anxiety. Id. Her weight was noted as 350 pounds. Id. J. Bryon Cook, M.D., examined the Plaintiff on April 29, 1996, for an evaluation of arthritic and cardiac impairment. (R. at 182-87). He described the Plaintiff as a "very obese lady in no acute distress" and noted her weight as "greater than 350 [pounds]." (R. at 183). Dr. Cook made few comments at the time concerning the Plaintiffs cardiovascular situation. (R. at 182-87). He did note her own assessment of "no known cardiovascular disease" and he also wrote: "she does have chronic dyspnea on exertion . . ." (R. at 182). Her heart was found to have a "regular rhythm without murmur." (R. at 184). Dr. Cook also noted, however, that the Plaintiff has a "[h]istory of variable blood pressures at this point. In the office she is normal tensive with two separate blood pressures." Id.
Xanax is a brand name for alprazolam, which is "a benzodiazepine minor tranquilizer used for management of anxiety disorders and panic attack." Stedman's at 51.
Before Dr. Cook's examination, the Plaintiff had never sought medical therapy and never had an x-ray evaluation of her arthritic complaints. (R. at 182-83). X-ray's and a "Range of Motion" test were conducted as part of Dr. Cook's examination to determine the Plaintiffs ability to move her spine and joints. (R. at 185-86). Concerning the Plaintiffs lumbosacral spine, Michael J. Hewitt, M.D., noted: "Anatomy looks within normal limits." (R. at 185). Regarding her right and left knees, the Dr. Hewitt found "[t]here is a mild decrease in the medial femorotibial joint space bilaterally. I suspect some decrease in the patellofemoral joint space also, but this is hard to define clearly. Despite repeat [ sic] views, we had quite a bit of difficulty imaging either knee in a true lateral projection." Id. Dr. Hewitt, finding nothing remarkable about the Plaintiffs anatomy, noted: "No occult fracture. Nothing to suggest an erosive arthritis. No definite effusion detected on either side." Id.
The results of the Range of Motion test indicated limitation. (R. at 186-87). In the dorsolumbar spine test, the normal flexion range is 90 degrees and the normal extension is 30 degrees. (R. at 186). The Plaintiff received scores of 45 degrees and 10 degrees, respectively, and experienced pain during each test. Id. The normal flexion for one's right and left knees is 150 degrees. (R. at 187). The plaintiff could only achieve 90 degrees for each knee. Id. In his assessment of the Plaintiff, Dr. Cook noted a "probable chronic lumbosacral strain secondary to [the plaintiffs morbid obesity]" and that "most of her joint symptoms were most likely due secondary to her obesity, limiting the range of motion." (R. at 184).
Following her hearing, but prior to the ALJ's decision, the Plaintiff was referred to Therese May, Ph.D., for an evaluation of her mental status. (R. at 202-08). The Plaintiff told the examiner that she is an only child, that her mother was on disability for mental problems, and that both her mother and father were physically, sexually, and verbally abusive. (R. at 203). Doctor May found the Plaintiffs short-term memory to be mildly impaired and her fund of information very limited. Id. The examiner estimated her intellectual potential to be at the borderline to low average range and noted that the Plaintiff "tear[ed] up easily" with a "strong dysthymic and depressed tone to her presentation." (R. at 204). The examiner felt the Plaintiff neglected her grooming and appeared overwhelmed and encumbered by her weight. Id. Dr. May summarized her report, noting: "Ms. Parker comes across as a chronically depressed and morbidly obese woman who has a history of abusive relationships. She appears passive and withdrawn . . . and unmotivated to do anything about either her physical or psychological difficulties." (R. at 205). The doctor's impressions of the Plaintiff also included: passive dependent traits, chronic pain and mobility problems, poor interpersonal communication skills, morbid obesity, and psychological factors affecting physical condition.
The Decision of September 26, 1997
The Administration has established a sequential evaluation process to determine if a claimant is eligible for benefits. 20 C.F.R. § 416.920. The sequence requires a review of the claimant's work and medical history. The first criterion for the Plaintiff to overcome to receive benefits is that she must not be working at the time of application and, if so, that work must not be substantial gainful activity (SGA). § 416.920(b). If a claimant's work does equal SGA, a finding of not disabled will immediately result. Id. Should the claimant establish that she does not participate in SGA, she must then prove that she has "a severe impairment or combination of impairments which significantly limit [her] physical or mental ability to do basic work activities." § 416.920(c). With an impairment established, a claimant may receive benefits if the impairment is listed in Appendix 1 and meets the duration requirement. § 416.920(d).
In defining "Substantial Gainful Activity", the C.F.R. defines "substantial work activity" and "gainful work activity". Substantial work activity is "work activity that involves doing significant physical or mental activities. Your work may be substantial even if it is done on a part-time basis or if you do less, get paid less, or have less responsibility than when you worked before." Gainful work activity is work activity done for "pay or profit, whether or not profit is realized." Taking care of oneself, performing household tasks or hobbies, therapy or school attendance, and the like are not generally considered substantial gainful activities. 20 C.F.R. § 404.1572.
If benefits cannot be rewarded based on the claimant's medical and work history, the Administration will assess the individual's Residual Functional Capacity (RFC) and the "physical and mental demands of work [she has] done in the past." § 416.920(e). If this work can be performed, benefits will not be rewarded. Id. However, if the claimant's past work cannot presently be performed, a finding of disabled is not made but benefits can only be denied if the Administration establishes that other work can be performed, considering the age, education, past work experience, and RFC of the claimant. If that finding cannot be made, then a finding of disabled will result. § 416.920(f)(1).
The ALJ began his analysis by noting that the Plaintiff had not engaged in SGA since March 30, 1993, and that her "diabetes mellitus, obesity, and dysthymia are considered `severe' impairments . . . in that they cause more than a minimal effect on her ability to function." (R. at 15). Sections 416.920(b) and 4 16.920(c) were accordingly satisfied. The ALJ then reviewed the medical evidence that is now before the Court, including the examination by Dr. May that was conducted after the hearing. (R. at 16-18).
The ALJ noted a doctor's report from the Spotsylvania Health Department from which he concluded it "indicated that the claimant did not have any physical limitations." (R. at 15). The ALJ also reviewed Dr. Cook's assessment of the Plaintiff and noted that the Plaintiff had "never sought medical therapy for her arthritic complaints," that she "was in no acute distress," and was without hypertension or diabetic retinopathy. (R. at 15-16). The ALJ ended his review of Dr. Cook's examination by noting the doctor's conclusions, found above. Id. However, the ALJ also noted that the x-rays of the Plaintiffs right and left knees "were within normal limits." Id. Although it does not appear that Drs. Cook and Hewitt made such a statement concerning the Plaintiffs knees, at least in those terms, Dr. Hewitt did note suspected joint space decrease and an inability to clearly define the knees due to the Plaintiffs size, but "nothing to suggest an erosive arthritis." (R. at 16, 185).
The document in question states that there are no "physical limitations on the type of work patient may perform." (R. at 139). It does not indicate, however, that the Plaintiff does not have any physical limitations.
The ALJ then reviewed the psychological examination administered by Dr. May. (R. at 16-17). He noted the doctor's conclusions regarding the Plaintiff, namely her passive dependent traits, dysthymia, and psychological factors affecting her physical condition. (R. at 17). Having established her impairments and their extent, the ALJ proceeded to explain why none of the impairments met the Listings in Appendix 1. Id. Although the Plaintiff is morbidly obese, the ALJ found that she did not meet the listing under § 9.09 of Appendix 1, in effect at the time, that required obesity and, in the Plaintiffs situation, "a history of pain and limitation of motion in any weight-bearing joint or the lumbosacral spine associated with findings on medically acceptable imaging techniques of arthritis." Id.; 20 C.F.R. Pt. 404, Subpt. P, App. 1. § 9.09(a). The ALJ concluded: "There is no medical evidence of arthritis in any joints or the lumbosacral spine. X-rays taken in conjunction with the consultative examination of Dr. Cook were within normal limits. The record does not indicate the claimant's obesity or diabetes mellitus meets or equals the requirement of the listing . . ." (R. at 17).
Section 9.09 was deleted from the Appendix effective October 25, 1999. Obesity, however, is still a factor in determining disability and is explained in Social Security Ruling 00-3p. SSR 00-3p, Titles II and XVI: Evaluation of Obesity, 65 Fed. Reg. 31039 (May 15, 2000).
The ALJ then assessed the Plaintiffs dysthymia in accordance with § 12.04 of the Appendix. Id. The ALJ found her able to take care of her personal needs and "perform a variety of activities" and concluded that the Plaintiff had only a "moderate limitation of daily activities due to psychiatric symptoms." Id. Noting her ability to interact and the presence of a boyfriend in her life, the ALJ found the Plaintiff only "slightly deficient" in social functioning. Id. And despite the Plaintiffs concentration problems, the ALJ thought they would not preclude her from performing unskilled work. (R. at 18). In concluding his review of the psychiatric review, the ALJ noted: "[The Plaintiff] does not meet or equal the requirements of listing section 12.04 or any other psychiatric listing section of Appendix 1." Id. The ALJ then ended his review of the Plaintiffs diagnosed impairments by stating: "The record does not reflect an impairment or combination of impairments meeting or equalling [ sic] the requirements of conditions in Appendix 1 to Subpart P, Regulations No. 4." Id.
The ALJ, before discussing her RFC, also explained why the Plaintiff did not qualify for DIB and SSI on account of her pain alone. (R. at 18-20). The ALJ followed the requirements of 20 C.F.R. § 404.1529, 406.929, 404.1569(a), and 416.969(a), and assessed the Plaintiffs medical evidence as well as the Plaintiffs subjective complaints regarding her pain. Id. Although the Plaintiff was in pain, and experienced shortness of breath, numbness in her hands, and testified that she had bone spurs in her feet, the ALJ found that her abilities to drive, shop, vacuum, dust, care for herself and her son, and walk a quarter mile proved that her pain was not so great that it constituted a disability. (R. at 20).
As the Plaintiffs impairments failed to meet the listings requirements, the ALJ, in accordance with § 416.920(e), assessed the Plaintiffs RFC and her ability to perform past work. (R. at 19-21). Considering her abilities as discussed when assessing the Plaintiffs pain as a possible disability, the ALJ found that the Plaintiff had an RFC to lift up to 35 pounds — frequently lifting 20 pounds — with the functional ability "consistent with the performance of a full range of sedentary work and a limited range of light work." Id. The ALJ also found that the Plaintiff required low levels of interaction with the public or co-workers, and thus found her unable to return to her previous work as a mail processor, cashier, fast food worker, or telemarketer. (R. at 20-21).
Having found the Plaintiff unable to perform her past relevant work, the ALJ noted, in accordance with § 416.920(f)(1), that the burden shifted to the Defendant to prove that jobs existed in the national and local economies which she can perform. (R. at 21). The ALJ then questioned Certified Rehabilitation Counselor Robert Jackson, who testified as a Vocational Expert (VE), about the Plaintiffs ability to work. Id. The ALJ asked the following hypothetical of the VE:
Assume you have a person capable of lifting objects weighing up to 35 pounds at a time with frequent lifting and carrying of objects weighing up to 20 ponds at a time. They have the ability to sit for periods of up to seven hours alternating their position in an eight-hour day. They have the unlimited ability to be able to push and pull with their upper extremities. Considering her age, education, and past work experience you have described, do any jobs exist in significant numbers in the regional and national economy, jobs with low to moderate levels of stress and frustration and there's a need to limit interaction with the public and co-workers. (R. at 59).
The VE responded that the jobs of production inspector, parking lot attendant, and courier were all jobs which such an individual could perform. (R. at 21). When the ALJ added the element of pain of a moderate or mild nature that does not interfere with attention or concentration to the hypothetical, the VE responded that such jobs could still be performed. (R. at 22). However, were such pain so severe that it caused periodic loss of concentration, problems attending to tasks, and difficulty meeting attendance standards, the VE replied that such an individual would be unable to perform any SGA. Id. The ALJ concluded by finding that the Plaintiff was able to perform the "unskilled, sedentary or light jobs identified by the vocational expert. . . . [thus] the claimant is not disabled within the meaning of the Social Security Act and Regulations." (R. at 22).
Analysis
The Defendant requests that the matter be remanded for additional findings by the ALJ because "[t]he ALJ failed to incorporate into [the] hypothetical to [the] vocational expert sufficient information regarding the plaintiffs mental limitations, pursuant to 20 C.F.R. § 404.1520; and further, the analysis at step 3 of the sequential evaluation process (listing analysis of impairments) was incomplete. . . ." (Def.'s Mot. to Remand). The Plaintiff objects on the basis that a case on review cannot be remanded in the absence of some substantive action affirming, modifying, or reversing the decision in question and that the evidence of record is insufficient as a matter of law to deny her benefits under the listing of impairments pertaining to obesity (§ 9.09). (Pl.'s Resp. to Def.'s Mot. to Remand).
The Plaintiff is correct that a remand in a § 405(g) review can only occur if the decision is affirmed, modified or reversed pursuant to the express language of § 405(g): "The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405 (g); See Melkonvan v. Sullivan, 501 U.S. 89, 98-101 (1991); Sargent v. Sullivan, 941 F.2d 1207 (table) (4th Cir 1991), 1991 WL 160091, **2. However, the Plaintiff is incorrect in asserting that the present review should be based on the sufficiency of the evidence of record concerning a disability determination pursuant to 20 C.F.R. § 404, Subpart P, Appendix 1 § 9.09 because that provision was deleted on October 25, 1999, with obesity incorporated into other existing listings involving musculoskeletal, cardiovascular, and respiratory conditions. Social Security Report 00-3p, a Policy Interpretation Ruling, explains the Administration's position regarding obesity and how it is to be determined now that Listing § 9.09 has been deleted. SSR 00-3p, 65 Fed. Reg. 31039. Although § 9.09 was in effect when the final administrative decision was rendered, the Court is required to apply the law in effect at the time of its decision. Zemonick v. Consolidation Coal Co., 762 F.2d 381 (4th Cir. 1985) (Ervin, J., dissenting) (citing Bradley v. Richmond School Board, 416 U.S. 696, 711 (1974)), rev'd en banc, 796 F.2d 1546 (4th Cir. 1986) (adopting the analysis in J. Ervin's dissent); Fulbright v. Apfel, 114 F. Supp.2d 465, 476 (W.D.N.C., Sept. 11, 2000).
The Tenth Circuit held in Nash v. Apfel, 215 F.3d 1337, 2000 WL 71049, at **2 (10th Cir. June 1, 2000) (unpublished table decision), that "[a] rule changing the law is retroactively applied only if Congress expressly authorized retroactive rulemaking and the agency clearly intended the rule to have retroactive effect." But, Bradley requires retroactivity unless doing so would result in "manifest injustice."Bradley, at 711. The Plaintiff will not experience manifest injustice here. Furthermore, the Tenth Circuit, in Nash, never cited to SSR 00-3p, which clearly states: "The final rules deleting listing 9.09 apply to claims that were filed before October 25, 1999, and that were awaiting an initial determination or that were pending appeal at any level of the administrative review process or that had been appealed to court. The change affected the entire claim, including the period before October 25, 1999. This is our usual policy with respect to any change in our listings." SSR 00-3p, 65 Fed. Reg. at 31042. SSR 00-3p was published only two weeks before Nash was filed by the Tenth Circuit.
The superceding provision defines "obesity" in broad terms:
In one sense, the cause of obesity is simply that the energy (food) taken in exceeds the energy expended by the individual's body. However, the influences on intake, the influences on expenditure, the metabolic processes in between, and the overall genetic controls are complex and not well understood. The National Institutes of Health (NIH) established medical criteria for the diagnosis of obesity in its Clinical Guidelines on the Identification, Evaluation, and Treatment of Overweight and Obesity in Adults (NIH Publication No. 98-4083, September 1998). These guidelines classify overweight and obesity in adults according to Body Mass. Index (BMI). BMI is the ratio of an individual's weight in kilograms to the square of his or her height in meters (kg/m2). For adults, both men and women, the Clinical Guidelines describe a BMI of 25-29.9 as "overweight" and a BMI of 30.0 or above as "obesity." The Clinical Guidelines recognize three levels of obesity. Level I includes BMIs of 30.0-34.9. Level II includes BMIs of 35.0-39.9. Level III, termed "extreme" obesity and representing the greatest risk for developing obesity related impairments, includes BMIs greater than or equal to 40. These levels describe the extent of obesity, but they do not correlate with any specific degree of functional loss.
SSR 00-3p, 65 Fed. Reg. at 31040.
The regulation also requires the "severity" of the condition to be assessed on a case-by-case basis and the evidence on the record concerning the Plaintiffs obesity, when factored in with the prescribed disabilities contained in the Listings, may be sufficient for an equivalency determination that would support a disability rating: "For example, if the obesity is of such a level that it markedly limits the individual's ability to walk and stand, it may substitute for arthritis of a weight bearing joint with `gross anatomical deformity of a hip or knee' in listing 1.03A, and we will then make a finding of equivalence."Id. at 31041.
The record contains substantial evidence to support the ALJ's conclusion that the Plaintiffs obese condition was "severe." (R. at 15). It also is clear that the Plaintiff suffers from a host of problems in combination with obesity, including diabetes, depression, chronic pain, bone spurs, shortage of breath, and passive dependent traits. Id., (R. at 182, 192, 195, 205). Furthermore, the existing record contains a notation by Dr. Hewitt that the Plaintiff suffers from "mild decrease in joint space" (R. at 85), which is corroborated, as emphasized by counsel, by the Defendant's own consultative examiner, Dr. Cook, who also noted:
The Plaintiffs height and weight are noted during the various documented examinations as ranging from 5"10" and 313 lbs. to 5"10" and 350/lbs. which translate into "extreme" obesity scores according to standards established by the National Institute of Health. See 00-3p, 65 Fed. Reg. at 31040.
"The essential feature of Dependant Personality disorder is a pervasive and excessive need to be taken care of that leads to submissive and clinging behavior and fears of separation." Diagnostic and Statistical Manual of Mental Disorders 665 (Am. Psychiatric Ass'n ed., 4th ed. 1994).
There is marked decrease range of motion felt secondary to her morbid obesity or her post intrinsic joint disease. Straight leg raising test was positive bilaterally at approximately 20 degrees and there is marked decrease range of motion as documented on the range of motion chart. All of which are charted and felt to be secondary to obesity.
(R. at 184) (emphasis added).
However, such observations are not sufficiently identified in the Listings, either alone or in combination, to necessarily constitute or equal a prescribed disability listing, especially in light of the requirement for additional medical expert opinion on the issue of equivalency: "An updated medical expert opinion must be obtained . . . before a decision of disability based on medical equivalence can be made." SSR 96-6p, Titles II and XVI: Consideration of Admin. Findings of Fact by State Agency Med. Psychological Consultants and Other Program Physicians Psychologists at the Admin. Law Judge and Appeals Council Levels of Admin. Review; Med. Equivalence, 61 Fed. Reg. 34466, at 34467 (June 7, 1996).
Additional findings are necessary, in any event, before the Plaintiff could be found to be ineligible for benefits because the ALJ's hypothetical to the VE at step five of the analysis did not encompass all of the Plaintiffs limitations as revealed by the post-hearing psychological evaluation:
The purpose of bringing in a vocational expert is to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform. In order for a vocational expert's opinion to be relevant or helpful, it must be based upon a consideration of all other evidence in the record, Chester v. Mathews, 403 F. Supp. 110 (D.Md. 1975), and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments. Stephens v. Secretary of Health, Education and Welfare, 603 F.2d 36 (8th Cir. 1979). In this case the ALJ did not ask questions that ensured that the vocational expert knew what the claimant's abilities and limitations were. Therefore, his answers to those questions were not particularly useful.Walker v. Brown, 889 F.2d 49, 50 (4th Cir. 1989).
Although the ALJ's hypothetical did not include reference to the Plaintiffs mental and emotional limitations observed by Dr. May because the evaluation was conducted after the administrative hearing (but before issuance of the ALJ's decision), Dr. May's conclusions could have affected the VE's response.
CONCLUSION
Although the matter has been pending for an inordinate length of time and the Court would prefer to resolve the matter at this juncture, it does not recommend doing so for the reasons stated. Therefore, it is the recommendation of the Court that the Plaintiffs Motion for Summary Judgment seeking final relief in the award of benefits be DENIED, that the motion be GRANTED to the extent of reversing the Commissioner's decision and remanding the case for further proceedings, and that the Defendant's unilateral Motion to Remand be DENIED.
Let the Clerk forward a copy of this report to the Honorable Richard L. Williams, United States District Court Judge, and all counsel of record.
It is so Ordered.