Opinion
Civ. Action No. 3:99 CV 509
May 25, 2001
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
This civil action is before the Court on cross motions for summary judgment. Under 42 U.S.C. § 405 (g), Plaintiff seeks judicial review of the final decision of the Commissioner of the Social Security Administration (Commissioner; SSA) to deny Supplemental Security Income Benefits (SSI) on a finding of the Administrative Law Judge that despite Plaintiffs medical impairments, he is able to engage in sedentary work and that there are a substantial number of sedentary jobs available in the national economy.
Because the Administrative Law Judge posed hypothetical questions to a vocational expert that failed to reflect all of the Plaintiffs impairments that are supported by the record, the hypothetical questions were deficient and the expert's answer therefore cannot be considered as substantial evidence.
Therefore, the final decision of the Commissioner should be vacated and the matter should be remanded to SSA for proceedings that are consistent with SSA regulations and the law of this circuit.
STANDARD OF REVIEW
In reviewing the Commissioner's decision denying benefits because Plaintiff retained the residual functional capacity to engage in at least sedentary work and was, therefore, not disabled, the Court is limited in its review to determining whether the Commissioner's 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) (citingRichardson 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 ALJ must "'take into account whatever in the record fairly detracts from its weight.'" Abbott v. Sullivan, 905 F.2d 918, 923 (4th Cir. 1990). 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. 389. While the standard is high, where the ALJ's determination is not supported by substantial evidence on the record or has made an error of law, the district court must reverse the decision. Coffman v. Bowen, 829 F.2d at 517.
Questions Presented
The questions presented in this appeal are: (1) whether the final decision of the Commissioner was reached by application of the correct legal standard and is supported by substantial evidence on the record where evidence upon which the ALJ relied included hypothetical questions posed to a vocational expert; and (2) whether the final decision of the Commissioner must be reversed because the ALJ's failed to consider Plaintiffs claims of illiteracy.
Procedural History
Plaintiff initially applied for SSI benefits on February 6, 1997, claiming his disability commenced on August 15, 1994. (R. at 84). Plaintiffs application for SSI was denied initially on May 30, 1997, and on reconsideration on August 8, 1997. Plaintiff timely requested a hearing and the case was heard by the Honorable F. Michael Ahem, United States Administrative Law Judge for the Social Security Administration, on April 22, 1998. (R. 34-61). Plaintiff was not represented by counsel at the hearing, but there were two witnesses who appeared. Elizabeth Campbell, a woman with whom Plaintiff lives, and Dr. Andrew Beale, a vocational expert who had reviewed "the pertinent medical evidence" in Plaintiffs file, both testified and responded to questioning by the ALJ. (R. at 53, 57).
The Court notes that the record in general refers on occasion to Mr. Patterson's "wife," "companion," or "friend." While not especially relevant, it seems apparent that this companion of eight to nine years, Elizabeth Campbell, is often identified as his wife in the medical and other records. Ms. Campbell appears to be knowledgeable and active in Mr. Patterson's daily life and in addressing his medical problems.
On July 23, 1998, the ALJ issued a decision denying benefits, finding that Plaintiff was not disabled for SSI purposes and that he retained the capacity to do sedentary work. (R. at 18-31).
Plaintiff timely applied to the Appeals Council for a review of the ALJ's findings and denial of benefits. (R. at 5). On May 14, 1999, the Appeals Council affirmed the ALJ's decision rendering it the final decision of the Commissioner. (R. at 5-6). The instant action was filed in United States District Court for the Eastern District of Virginia on July 14, 1999. The matter has been fully briefed on both sides and is ready for resolution on the record. See Myers v. Califano, 611 F.2d 980 (4th Cir. 1980).
Evidence on the Record
The ALJ found and Plaintiffs medical records confirm that he has multiple medical problems including hepatitis C, diabetes mellitus, cataracts of the right eye, and depression. (R. at 22). In addition to his family physician, Rajendra S. Trivedi, M.D. at Danville Regional Medical Center (M.C.), a number of other physicians have treated Mr. Patterson over the years, including, among others, surgeon John M. Stoneburner, M.D. at Danville Regional M.C.; Thomas J. Hardy, M.D., at Danville Regional M.C.; Okafor Uekwuwa, M.D. at Danville Regional M.C.; emergency room doctor Frank Ramsey, M.D. at Chippenham M.C.; Robert Bennett, M.D. at Chippenham M.C.; radiologists Harold B. Owens, M.D. and George Economu, M.D. at Danville Diagnostic Imaging Center; doctors Carroll and Han at Sandy River M.C.; ophthalmologist C. Thomas Harvey, M.D., F.A.C.S., at Piedmont Regional Eye Center; Richard Browne, Ph.D.; Carth Stevens, Jr., M.D., Howard Jolles, M.D. and Valerie Gutterman at Medical College of Virginia Hospital (MCV); staff professionals at Outpatient A.D. Williams Clinic (R. at 156, 161, 165, 174, 179, 182, 205, 215, 216, 217, 232, 235, 236, 249). The medical evidence on the record dates back to May of 1994.
Reports in the Record from Plaintiff's Health Care Providers
Much of Mr. Patterson's medical history from May 25, 1994 through March 5, 1997 is documented in his chart kept by Sandy River M.C. (R. at 184-215).
Notes from Mr. Patterson's chart dated May 25, 1994, indicate Mr. Patterson presented with a chief complaint of weakness, urinary frequency, urinary urgency and fatigue. (R. at 214). Complete work-up was performed and findings were negative. Id. "Certain studies," including a chest x-ray, were performed because of a chronic cough but failed to show any abnormalities except increased linear scarring in both upper lobes of his lungs which are consistent with heavy smoking. (R. at 214-215).
On May 27, 1994, notes indicate that Ms. Campbell, his companion, called and indicated that he had been having severe headaches with vomiting that had happened seven to eight times a day since he was seen two days prior. (R. 211-214).
Notes of June 1, 1994, indicate that Mr. Patterson presented mainly for chronic headaches and had no real changes in headaches until March 15, 1993, at which time his wife expressed that he blamed himself for a barn roof falling in causing her injury. Mr. Patterson was reportedly off work for 3 to 4 months to take care of her at home. (R. at 211). He appeared to the physician to be sluggish and had slurring speech, although his physical exam showed no other abnormality. Id. The notes addressing the primary diagnosis of chronic headaches show that the treating physician believed that they were likely stress induced. Id. The physician also noted that Mr. Patterson's heavy smoking was "probably [his] most severe long term risk." Also, it is notable that Plaintiff was urged to lose weight and engage in some physical activity regarding his previously diagnosed hyperlipidemia. Id. Notes indicate that there was no need for further work-up for the slight acceleration in otherwise stable pattern of headaches. Mr. Patterson was given a prescription for Elavil and "really strongly urged" to seek counseling independent of the Elavil for mood and possible suicidal ideations. (R. at 212).
Hyperlipidemia, or hyperlipoproteinemia, refers to any number of conditions characterized by elevated lipoprotein levels in the plasma. The several types of hyperlipidemia can cause abdominal pain, chronic vomiting and nausea, hepatomegaly, vascular disease, insulin resistence, obesity, peripheral neuropathy, acute or fatal pancreatitis, eruptive xanthomas, lipemia retinalis, renal and liver failure. The Merck Manual of Diagnosis and Therapy 200-211 (Mark H. Beers et al. eds., 1999).
Mr. Patterson presented to Sandy River M.C. on May 8, 1996 with chief complaints of frequent diarrhea and indigestion more than 10 months in duration. (R. at 206). At that time, Mr. Patterson's weight was 210 pounds and he was diagnosed as suffering from hepatomegaly. Id. The lab report indicated Mr. Patterson was positive for hepatitis C. (R. at 208). Abdominal sonogram of May 9, 1996 performed at Danville Diagnostic Imaging Center by Dr. Owens was normal. (R. at 205).
Hepatomegaly is an enlargement of the liver, primary or secondary to liver disease which is consistent with hepatitis. The Merck Manual of Diagnosis and Therapy 358.
Hepatitis C is one of several forms of acute viral infections causing liver inflammation characterized by diffuse or patchy necrosis (death of cells/organ) affecting all acini, caused by specific hepatrophic viruses. The Merck Manual of Diagnosis and Therapy 377, 380. Hepatitis C patients have the highest rate of chronicity among sufferers of Hepatitis viruses, about 75%. Id. at 381.
Mr. Patterson was admitted to Danville Regional M.C. May 11 through May 14, 1996, for cholecystitis and dehydration. (R. at 156-165). He was treated by Drs. Trivedi and Stoneburner and discharged home with instructions to follow up with an office appointment. Dr. Stoneburner performed a successful laparoscopic cholecystectomy which Mr. Patterson appeared to tolerate well. Id. This admission by Mr. Patterson's family physician also contains a brief medical history which not only documents the emergency removal of his diseased gall bladder, but discusses three of Mr. Patterson's other medical conditions, including that he suffers from hepatitis C, mild hyperglycemia, history of alcoholism. (R. at 157).
Acute gall bladder inflammation. The Merck Manual of Diagnosis and Therapy 402.
Elevated levels of sugar in the blood stream are characteristic of diabetes mellitus. The Merck Manual of Diagnosis and Therapy 166-167.
On May 21, 1996, Mr. Patterson had an office visit to follow-up on his surgery and hospital stay. (R. at 204). It was expressly noted that at this post-operative visit two weeks after the gall bladder removal, Mr. Patterson's weight was 203 pounds on the date of the exam and he reported depression to the healthcare provider. Id.
A little over a month after having the gall bladder removed, Mr. Patterson presented to Danville Regional M.C. emergency room on June 18, 1996, with symptoms of abdominal pain, vomiting and chest burning. (R. at 174). He reported that he continued to have problems following the procedure, including chronic vomiting. Id. Mr. Patterson was diagnosed at this point with gastroesophagitis, prescribed Vistaril and Zantac, and advised to see his family physician.Id.
Chart notes of June 18, 1996, state that Mr. Patterson's wife called to report that Mr. Patterson was vomiting everything he ate, perspiring heavily and had spit up blood with the vomit. Mr. Patterson was complaining of painful heartburn and a splitting headache, of which she said he complained once a week. (R. at 204). She was advised to take the patient to the Sandy River M.C. emergency room and to call back with a report. (R. at 204). Mr. Patterson missed an appointment with Dr. Trivedi at Sandy River M.C. on June 21, 1996. (R. at 203).
On October 30, 1996, Mr. Patterson again presented to Sandy River M.C. complaining of weakness, nausea, vomiting, and headaches. (R. at 200). Hemoglobin count was 15.9. (R. at 201). His weight was 212 pounds. (R. at 200). Dr. Trivedi addressed his various complaints of abdominal pain, headaches, hepatitis C, post gall-bladder removal, obesity and smoking with various medications and behavior modifications and noted that his options treating the hepatitis were limited due to financial constraints.Id.
Mr. Patterson reported to Dr. Trivedi at the Sandy River M.C. on November 18, 1996, with lower left quadrant pain in his abdomen, epigastric pain, frequency of urine and some polydypsia. His blood sugar was 263 and it was noted that he was not adhering to a recommended diet. (R. at 198). Mr. Patterson was switched from Zantac to Carafate for epigastric pain. Id. Diabetes and hyperlipidemia were noted by Dr. Trivedi who also recommended a 1500 calorie diet and exercise. Id. Dr. Trivedi noted that if the diet and exercise did not work, she would prescribe medication to control the diabetes.
Mr. Patterson submitted to a barium enema at Danville Regional M.C. on November 20, 1996. Diverticulosis and obstruction diverticulosis were ruled out due to normal results from the test. (R. at 195-196).
Various glucose tests were performed following the diagnosis of onset of diabetes. On November 19, 1996, his accucheck glucose level was 202. (R. at 196) On December 2, 1996, lab results reported accucheck glucose to be 391. (R. at 193). That day, Mr. Patterson's weight was 207, and the staff noted that an application on his behalf was made for assistance in receiving two drugs prescribed: gluccotrol and catapress. (R. at 194). On December 13, 1996, lab results reported accucheck glucose to be 321 on a day when he did not fast prior to the test — he had water and soft drink. (R. at 192). Mr. Patterson reported for follow-up regarding his abdominal pain and diabetes. Mr. Patterson reported that stomach pain was better and he was trying to lose weight, but was skipping meals which was noted by Dr. Trevidi as "not good for him." (R. at 191). While the abdominal pain resolved, its etiology was still unclear. Id. On December 19 and 20, 1996, chart notes indicate a need to instruct Mr. Patterson on the use of gluccotrol. Id.
On December 27, 1996, Mr. Patterson's glucose was re-checked at the Sandy River M.C. (R. at 188). Mr. Patterson admitted to eating a piece of cake that morning but had a better glucose reading than usual. (R. at 188). His weight was at 209. (R. at 187). Lab results reported accucheck glucose to be 223. (R. at 190). Mr. Patterson was referred to an ophthalmologist, but he could not afford the eye appointment. (R. at 187). Diabetes was noted to be under good control. Id. However, the notes still reflect continued headaches, gas, and nervousness. Id. Dr. Trivedi noted anxiety and depression for which she prescribed doxepin, klonopin, and possibly one other drug for which the notation is illegible. Id.
Notations entered on February 4, 1996, indicate that the Sandy River staff were attempting to obtain assistance to get Mr. Patterson these drugs. (R. at 185). On February 17, 1997, Dr. Trivedi received a phone call to contact MCV for a consult on Mr. Patterson. Id.
Mr. Patterson presented to Chippenham M.C. emergency room on February 14, 1997 with complaints of chest pain and nosebleed. (R. at 179). Mr. Patterson complained to Dr. Ramsey that although he had no symptoms at the time he was being seen, he had two episodes over the previous two days. with the most recent episode beginning just prior to arrival and the longest lasting for one hour. Id. An EKG monitor was attached for cardiac monitoring and he was referred for a stress test. Id. Dr. Ramsey also noted Mr. Patterson's risk factors in his overall medical condition including a history of hypertension for which he was then taking Calan; history of hyperlipidemia; adult onset type II non-insulin dependent diabetes; and that he smoked two to three packs of cigarettes a day. (R. at 180)
A stress test performed by Dr. Bennett at Chippenham M.C. the next day revealed that Mr. Patterson could only tolerate the treadmill for five minutes and 59 seconds. (R. at 182). He reported no chest pain and had a blunted heart rate response and normal blood pressure response. Id. Dr. Bennett's conclusions were that Mr. Patterson had poor exercise tolerance, that he had no exertional chest pain as a result of this test and that the result was within normal limits for both resting and exercise EKG. Id.
Mr. Patterson was prescribed 50 milligrams of Doxepin on March 5, 1997. (R. at 184). The record contains a letter from Dr. C. Thomas Harvey of the Piedmont Regional Eye Center, Inc. dated March 10, 1997, who diagnosed Mr. Patterson with both traumatic cataract of the right eye and probable migraine headaches. (R. at 216).
On April 1, 1997, Mr. Patterson presented to MCV-Outpatient A.D. Williams Clinic for what appears to be a transfer of care resulting from a move to Richmond. (R. at 240). Among other things, he was referred for a podiatry visit for foot care secondary to his diabetes and asked to return in 6 weeks.
Mr. Patterson presented to Podiatry Ambulatory Care Center for diabetic foot care on April 16, 1997. (R. at 239).
Notes from another visit to MCV — Outpatient A. D. Williams Clinic on April 22, 1997, discussed Mr. Patterson's knowledge deficit about his disease (diabetes). (R. at 237). Notes indicate also that Mr. Patterson was blind in right eye and beginning to have problems with his left eye. Id. He missed his last ophthalmology appointment in Danville because of his move to Richmond and had not had a follow-up appointment in three years. Id. The physician once again stressed the importance of diet in Mr. Patterson's care. (R. at 238).
Mr. Patterson presented to MCV — Outpatient A. D. Williams Clinic on May 20, 1997 complaining of diffuse stomach pain, nausea, vomiting and diarrhea. (R. at 236). He was diagnosed with acute gastrointestinal illness with bleeding. Mr. Patterson reported he was regularly taking nine to twelve BC powders in a day. Id. The record noted that he suffered from chronic problems of hepatitis C, hypertension, diabetes and depression. Id.
A radiology report dated May 29, 1997, is barely legible, but it appears to indicate that a chest x-ray yielded a conclusion of "normal heart size with discoid atelectasis scarring. (R. at 235).
The incomplete expansion of lobules or lung segments which may result in a collapsed lung. Professional Guide to Diseases 503 (Edith McMahon, et al. eds. 1995).
Mr. Patterson was treated at the Podiatry Ambulatory Care Center on June 25, 1997, for foot care subsequent to his diabetes. (R. at 234). Mr. Patterson had surgery for the removal of cataract from his right eye at MCV hospital on July 7, 1997. (R. at 233).
Mr. Patterson underwent a liver biopsy at MCV on March 11, 1998 and was diagnosed with moderate macrovascular steatosis with minimal portal and lobular inflammation of liver. However, a trichrome stain was performed and revealed preserved hepatic architecture. (R. at 249).
Refers to accumulation of fat in the liver, hepatomegaly, in an alcoholic, obese or diabetic person. It is usually not harmful in and of itself and can be reversible even in cases where the condition can be fatal. The Merck Manual of Diagnosis and Therapy 367-368.
Psychology Report of Richard Browne. Ph.D .
Mr. Patterson submitted to a mental status examination by Richard Browne, Ph.D. on April 7, 1997. The report reflects that Mr. Patterson claimed that he worked about one year previously as a "handy man" doing "painting and repair work for a friend" for approximately three months. (R. at 218). Prior to that time, he was a bricklayer's helper for approximately three months and prior to that, he did some carpentry work for approximately 15 to 20 years. Id. He claimed not to be able to see out of his right eye subsequent to trauma caused by an automobile accident 23 years before and that was the reason why he quit carpentry work because he began making mistakes on the job. Id. Mr. Patterson also reported that he had a cataract in his right eye and was only able to see shadows. Id. He claimed to have quit drinking one year prior to the exam. Id. To that point, he had been consuming a half gallon of whiskey on weekends. Id.
The Court notes that Mr. Patterson did seek ophthalmological treatment and surgery for a cataract of the right eye in July of 1997, a little less than four months after the mental status examination by Dr. Browne.
When Dr. Browne evaluated Mr. Patterson, he lived with his mother and his wife, which was consistent with his applications for SSI. Id. Mr. Patterson was able to engage in all of his activities of daily living — bathing, grooming and dressing himself. Id. Mr. Patterson's primary daily activity involved working in his vegetable garden which he reported to be approximately a quarter of an acre in size. He reported that he plants flowers and shrubs six to eight hours a day. Id. He vacuumed occasionally. Id. Mr. Patterson stated that he did not read newspapers, books or magazines because he has significant difficulty with reading. Id. He stated that his favorite activity was wood work and he tried to do this daily, but his gardening chores were interfering. Id. He also said he smoked three packs of cigarettes a day. Id. Mr. Patterson denied any drug or alcohol use at that time. Id.
Dr. Browne indicated that Mr. Patterson appeared to be comfortable in his current lifestyle and he would probably relate well with others in both social and occupational settings. (R. at 220). Dr. Browne performed various tests including the WAIS-R intelligence test. Mr. Patterson scored Verbal (72) IQ which is "in the borderline range" of 3 percent of the general population. (R. at 220) On the performance test, he scored (82) which is in the low average range of about 12 percent of the population. (R. at 221). His full IQ was 76, which was characterized by Dr. Browne as borderline and in 12 percent of the general population. (R. at 221). Dr. Browne noted that Mr. Patterson experienced no significant neuropsychological functioning decline and has probably functioned at or near his current level. Id. Despite Mr. Patterson's good orientation and adequate recall, he was found to be easily confused, to have limited verbal skills as well as fine motor difficulties. Dr. Browne reported that he felt Mr. Patterson could handle his own funds. (R. at 222).
Dr. Browne also noted Mr. Patterson had an 11th grade education, but had been in special education classes. (R. 222) Although he had worked most of his adult life, he stopped working as a carpenter due to mistakes made on the job. Id.
A Psychiatric Review was completed May 28, 1997 by an SSA retained reviewer, David U. Niemeier, Ph.D. In the medical summary, Dr. Niemeier selected "no medically determinable impairment" from among the choices to enter for Mr. Patterson's medical disposition. (R. at 224). His report was then reviewed by Alan D. Entin, Ph.D. on August 1, 1997. Dr. Niemeier's notes state that, among other things, Mr. Patterson alleged anxiety, illiteracy, hepatitis C, diabetes, high blood pressure, and vision impairment. (R. at 225). Dr. Niemeier noted Mr. Patterson's previous evaluation with Dr. Browne and that he did gardening and woodworking, and was an alcoholic in remission since August of 1996. Id. Dr. Niemeier found that Mr. Patterson had no diagnosis of mental problems and no history of treatment other than marriage counseling. Id.
High School Records
Mr. Patterson's eleventh grade school records appear to indicate that he had been in special education classes in the tenth and part of the eleventh grade. His grades fell dramatically in the fall of the eleventh grade, and resulted in almost complete failure when it appears he was no longer in special education classes. (R. at 250-251).
Testimony of Richard Patterson:
Mr. Patterson testified about his impairments, his medical history and his activities of daily living at the ALJ hearing. (R. 39-54). The ALJ propounded questions to elicit the testimony as to his level of impairment. At the time of the hearing, Mr. Patterson was 43 years old, weighed 228 pounds, and was living in Richmond, Virginia, with Ms. Elizabeth Campbell. (R. at 39, 54). Mr. Patterson admitted that his driver's license had been revoked pursuant to a driving-under-the-influence (DUI) charge approximately 10 years prior to the hearing. (R. at 40). Mr. Patterson testified that he had steady back pain and difficulty reading and understanding words. (R. at 41). He hadn't worked since 1994 when he was employed approximately 4 months as a bricklayer's helper doing heavy lifting. (R. 42-43). He had a work history in construction where he performed heavy lifting, stooping, bending, and was on his feet all day. (R. at 42).
Mr. Patterson testified he stopped working because he got sick almost every day with headaches, weakness, and vomiting. Id. He stated that his companion takes care of him, he was not receiving public aid, and was not currently doing odd jobs around the house. (R. at 43). In response to the ALJ's questions about various maladies, Mr. Patterson confirmed to the ALJ that he is diagnosed and being treated for diabetes, high blood pressure, high cholesterol, and vision problems. (R. at 43-44).
He testified that he received medication both by mouth and by injection for diabetes. Id. He also responded that he does take medication for his blood pressure and cholesterol. (R. 44). He admitted to having blurry vision in right eye, with normal vision in left eye. (R. at 46). Mr. Patterson also responded to questions about the liver biopsy exhibit and indicated that a doctor had not yet prescribed a course of treatment. (R. at 46).
See note 8, supra.
Mr. Patterson also responded affirmatively to the ALJ's question, "And you're also being treated for depression?" (R. at 47). The ALJ followed up by asking, "How often do you see a counselor for your depression?" to which Mr. Patterson responded, "just once every two or three months."Id.
Mr. Patterson responded that his "aching" low back pain was due to increased activity, but "[t]hey say [it] mean[s] [the] spleen [is] infected because of that" and that previously he had never had a low back injury. (R. at 48). The ALJ also inquired as to the abdominal pain Mr. Patterson experienced from his liver, to which he responded that he has sharp pain two to three times per week due to the liver. (R. at 48). Mr. Patterson admitted to arthritis pain in his knees and ankles that is present most of the time. (R. at 48-49). He testified that he "keeps himself occupied" by cleaning up the yard anywhere from a half hour to an hour before he has to "come in and rest for a while and then go back out and start again." (R. at 49). Mr. Patterson stated that he "ain't really walking a long time," but in response to the ALJ's query said that he can probably walk five blocks. Although he said he hadn't "really tested" himself he guessed he could stand comfortably for about half an hour. (R. at 50). While he reported that he had no trouble sitting, he did not say how long he could remain seated. He also stated that he had trouble bending over or reaching down because his "stomach's real swollen" due to liver inflammation. (R. at 50).
Mr. Patterson stated that he was not able to lift 15 pounds, but would be able to reach above his head using his arms and hands to get a dish, for instance. (R. at 51). He also reported that he gets "out of breath a lot." Id. The ALJ questioned whether Mr. Patterson thought he could return to his previous work. After some confusing banter, Mr. Patterson's answer was "I wouldn't think so." (R. 52). Mr. Patterson estimated his daily pain level to be around four on a scale of "one to ten." Id.
Mr. Patterson told the ALJ that he experienced headaches "most days I have them every day" and they last "two or three hours, most." Id. Mr. Patterson also confirmed that he is depressed over his medical condition and that he is "worrying a lot." Id. He also testified he feels weak all the time and has difficulty sleeping through the night. Id. He denied alcohol use since 1995. Id.
Elizabeth Campbell Testimony
Ms. Campbell was sworn in and described herself as Mr. Patterson's friend with whom he had lived for "eight or nine years." (R. at 54). She confirmed that Mr. Patterson's hepatitis "flares up" with episodes of vomiting, pain and that he "gets kind of yellowish — kind of a yellowish tint like he's got now, to his skin" and "it makes him so weak that he can't stand up." (R. at 55, 57). The periods of time when the hepatitis is "worse than other times" last from three to four days, two to three times a month. Id. In her opinion, the witness stated that Mr. Patterson would not be able to work eight hours a day/five days a week because of the frequency of hepatitis related episodes and "with his headaches . . . he's taking pain medicine constantly." (R. at 56-57). With that, the ALJ concluded the questioning of Ms. Campbell. (R. at 57).
Dr. Andrew V. Beale, Vocational Expert Testimony
Dr. Beale was called as a witness who had reviewed all of the evidence on the record regarding Mr. Patterson. (R. at 57). Dr. Beale stated that in all of Mr. Patterson's work, his skills would not be transferable to lighter occupations and that all of his work in the construction trade would be at a medium to heavy work level. Id.
In response to the ALJ's hypothetical question that he assume essentially all of Mr. Patterson's limitations were as he described in the hearing, Dr. Beale stated that Mr. Patterson would not be able to do his previous work. (R. at 58). Dr. Beale also testified that there would be no work for him considering his limitations and qualifications in this region or regions of the country because, under those conditions, Mr. Patterson would not be able to perform "sustained physical activity, eight hours a day, five days a week." (R. 59).
The ALJ then propounded a second hypothetical, "assume on the other hand I find that, although the claimant experiences pain, that it's mild to moderate and does not affect his ability to alternately stand and sit for sustained periods of time during the day, would that have any affect on ability to perform work activity?" Id.
Dr. Beale responded that if the ALJ were to find that if Mr. Patterson has mild to moderate pain, where he "could perform sustained activity" including sitting and standing, that Mr. Patterson could perform "unskilled jobs, of a sit down nature." Id. Dr. Beale further stated that a person with depression of a mild or moderate nature would be able to perform the jobs which would fall to Mr. Patterson's capabilities. (R. at 60). However, severe depression that prevented sustained mental activity would eliminate these jobs. Id.
Analysis
The Commissioner is required to evaluate claims for SSI disability using a five-step sequential evaluation. 20 C.F.R. § 404.1520, 416.920. First the Plaintiff must show that he is not currently engaged in substantial gainful activity. 20 C.F.R. § 404.1520 (b). In this case, the ALJ found, and the evidence supports the finding, that Plaintiff has not been engaged in any substantial gainful activity since filing his application for benefits on February 6, 1997. (R. at 21).
Next, the Plaintiff must show that he has a severe impairment. 20 C.F.R. § 404.1520 (c). The evidence supports the ALJ's finding that "[h]is impairments are 'severe' . . . in that they cause more than a minimal effect on his ability to function." (R. at 22) (citations omitted). Further, Plaintiff is required to prove that he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which is expected to result in death or has lasted for a continuous period of not less than 12 months.English v. Shalala, 10 F.3d 1080, 1082 (4th Cir. 1993) (citing 42 U.S.C. § 423 (d)(1)(A)). In this case, the evidence shows that since 1996, Mr. Patterson has suffered from diagnoses of hepatitis C, diabetes mellitus, cataract of the right eye, depression, hyperlipidemia, hepatomegaly, gastroesophagitis, depression, vomiting, abdominal pain, and chronic headaches which are supported by medical records from several treating physicians at several medical facilities and the testimony of his companion.
Next, the regulations provide an appendix of listed impairments. See 20 C.F.R. § 404.1520 (d); Appendix 1, Subpart P. If a Plaintiff has an impairment that meets or equals a listing, the inquiry stops and disability is found without any need to consider vocational factors.Johnson v. Bowen, 864 F.2d 340, 344 (4th Cir. 1988). In this case, the ALJ found that the medical evidence established that Plaintiff had "hepatitis C, diabetes mellitus, cataracts of the right eye, and depression," but that he does not have "an impairment or combination of impairments meeting the requirements of conditions contained in Appendix 1 to Subpart P, Regulations No. 4." (R. at 22). The ALJ went on to decide that "the combination of the claimant's impainnents" did not "impose such functional limitations as to be equal in severity to any section of Appendix 1." Id.
Because the ALJ found that while Plaintiffs impairments were severe, they did not meet or equal a listing, the ALJ was required examine whether Plaintiff could perform his past relevant work. If so, the inquiry would end and no disability could be found. If not, then the burden shifts to the Commissioner to show that the Plaintiff could perform other substantial gainful activity. Heckler v. Campbell, 461 U.S. 458, 466 (1983).
In this case, Mr. Patterson's past relevant work consisted of both skilled and unskilled, medium to heavy work, requiring constant walking, standing, stooping, bending, and lifting. (R. at 58).
Since the Plaintiff in this case has shown that he cannot engage in past relevant work, the burden shifts to the Commissioner who "must establish that the claimant has sufficient residual functional capacity to engage in an alternative job existing in the national economy." McLain v. Schweiker, 715 F.2d 866, 869 (4th Cir. 1983) (case was remanded in order to allow SSA to "adduce appropriate proof to counter the claimants prima facie case" through the testimony of a vocational expert). To prove that such jobs exist, especially where non-exertional limitations exist such as pain, depression and borderline IQ, the ALJ must rely on the testimony of a vocational expert to point to jobs that are within the abilities of the claimant that exist in significant numbers. Id.
In this case, the ALJ propounded several hypothetical questions to the vocational expert in order to determine what jobs, if any, existed in the national economy given Mr. Patterson's impairments. (R. 58-60). The ALJ found that Mr. Patterson's subjective complaints of pain were unsupported by the medical evidence, he experienced only mild to moderate depression, and considering his age, limited education, past relevant work, and the vocational expert's testimony, the ALJ concluded Mr. Patterson could perform sedentary work. (R. at 26).
The Court is of the opinion that error occurred when the burden shifted to the Commissioner to show that the Plaintiff could engage in sedentary work and that such work existed in significant numbers in the national economy. The ALJ erred in that his decision is not supported by substantial evidence on the record because he relied on the vocational expert's testimony that Mr. Patterson could engage in sedentary work but the vocational expert's testimony was elicited by the ALJ in response to improper hypothetical questions.
While the Court may not reweigh the evidence or substitute its own judgment for that of the Commissioner, it must look at the record as a whole and determine whether substantial evidence supports the Commissioner's decision. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
The ALJ Propounded Improper Questions to the Vocational Expert. Rendering the Vocational Expert's Testimony and Opinions "Not Substantial Evidence" Upon Which the ALJ Could Base a DecisionThe questions propounded to the vocational expert by the ALJ are improper because such hypotheticals must be "based upon a consideration of all relevant evidence of record on the claimant's impairment." English v. Shalala, 10 F.3d 1080, 1085 (4th Cir. 1993). In this case, the ALJ approached the first question by asking the expert to assume that all the evidence given by Mr. Patterson at the hearing was true, including limitations caused by pain, his age, education, training and work experience and the expert responded that Mr. Patterson would not be able to do his former work, nor any other work for which he would be qualified. (R. at 59).
ALJ: All right. Doctor, assume that I will find that the claimant's functional limitations are essentially as we've heard them here today, that is as a result of his low back pain and daily headaches which last two or three hours, his abdominal pain because of his liver, and the arthritis which effects his knees and ankles, that he experiences pain which is severe to the extent that it effects his ability to function. And considering his age, education, training, and other work experience, would he be able to do the work that he formally did?
VE: No, sir. He would not be able to do his previous work.
ALJ: Would there be any work in this region or the several regions of the country for which he would be qualified?
VE: No, sir. He could not perform sustained physical activity, eight hours a day, five days a week, there would not be work, no, sir.
The ALJ's next question only addressed limitations caused by pain if it were found to be in the mild to moderate range, and the expert responded that Mr. Patterson could engage in sedentary work as long as he could do it on "a sustained, day in, day out basis." Id.
ALJ: All right, Doctor, assume on the other hand I find that, although the claimant experiences pain, that it's mild to moderate and does not affect his ability to alternately stand and sit for a sustained period of time during the day, would that have any effect on ability to perform work activity?
VE: Well, I think if it were found that he could perform sustained activity, sitting and standing, that there would be jobs, unskilled jobs, of a sit down nature that a person can perform. These jobs would include work in the production area as an inspector or a checker or a sorter. In Virginia there are approximately 3,300 positions such as this, and in the national economy, approximately 81, 000. or work as a hand packer or packager, working at a line either seated or standing or alternating sitting or standing, there are approximately 4, 100 hand packaging positions in Virginia and approximately 199,000 in the national economy. or work as a parking garage attendant, for example, one who takes tickets, makes change, they're approximately 800 parking garage attendants in Virginia and a little over 48,000 in the national economy. And of course, they key is, as I've said, is the ability to do this sustained, day in, day out basis.
ALJ: All right, Doctor, and these are entry level jobs which require lifting no more than 10 or 15 pounds:
VE: Yes, sir, that is correct. Lifting would be manageable, and these are all unskilled, entry level simple demonstration on the job.
ALJ: Sedentary or light?
VE: Most of them would be classified as light, because they would (INAUDIBLE) work if they opted to alternate standing and sitting. But the lifting would be well within the 10 pounds maximum.
The third hypothetical limited the variable factor to whether Plaintiffs depression was severe or mild to moderate. (R. at 60).
ALJ: All right, Doctor, assume further that I will find that the claimant experiences depression which is severe to the point of effecting his ability to think, concentrate and reason, or in the alternative, and does not prevent him in engaging in sustained work activity, would that have any effect on his ability to perform the jobs you've enumerated.
VE: The depression of a mild to moderate nature, as you've described, would not change my opinion that these jobs would fall to his capabilities. Sever depression, however, that prevented sustained mental activity would eliminate these jobs in consideration, as well as all other jobs. (R. at 58-60).
The ALJ's questions appear to be inadequate given the requirement that the hypotheticals must fairly represent "all relevant evidence of record on claimant's impairment." Enalish v. Shalala, 10 F.3d at 1085 (citingWalker v. Bowen, 876 F.2d 1097, 1100 (4Eh Cir. 1989) and remanding the case for new proceedings because the vocational expert relied on an outdated version of the Dictionary of Occupational Titles).
In English v. Shalala, the Plaintiff complained that the ALJ "did not incorporate all pertinent information as to English's disabilities." Id. Even though the court thought there may be merit to the Commissioner's argument that the question could be viewed in the context of all the testimony, the court nonetheless remanded the case for proper development of hypothetical questions. Id. Because the ALJ "attributed certain functional capacities to [the plaintiff] that were unsupported by evidence in the record," for instance assuming the plaintiffs ability to lift a certain amount of weight and misrepresenting his intellectual and educational status, the court instructed the ALJ on remand to develop the evidence by propounding proper hypotheticals that more accurately represented the Plaintiffs abilities. Id.
In this case, as in English v. Shalala, even though the ALJ prefaced his questioning of the vocational expert by asking Dr. Beale if he had reviewed "all the pertinent medical evidence in the file," he neglected to craft questions that reflected the impairments as supported by the evidence. (R. at 57). Similar to the facts in English v. Shalala, the vocational expert here heard all the testimony and reviewed all of the medical evidence, but the scope of the questions posed by the ALJ failed to include all of the impairments or loosely characterized others and "on remand, information as to [the claimants] abilities should be more accurately presented to the expert witness." 10 F.3d at 1086.
In this case, the ALJ failed to propound questions that included all of Mr. Patterson's impairments, even though he did ask the expert to evaluate residual functional capacity hypothetically as it related to the non-exertional variables such as pain and depression. It is inadequate to refer only to Mr. Patterson's testimony, and even though the ALJ asked Mr. Patterson many questions that related to his impairments, it was not helpful in developing the necessary record to substantiate the vocational expert's testimony.
As set forth fully herein, the uncontradicted medical evidence in the record demonstrates that Mr. Patterson had ongoing exertional and non-exertional limitations due to hepatitis C, diabetes, hyperlipidemia, hepatomegaly, abdominal pain, vomiting, diarrhea, nausea, gastroesophagitis, chronic headaches, impaired vision in the right eye, deterioration of sight in the other eye, obesity, depression, borderline IQ, possible illiteracy, and that he was recovering from alcoholism. In addition to his chronic problems, he had hospital visits for medical intervention such as surgeries for removal of his gall bladder and cataracts, as well as emergency room visits for acute problems with vomiting, abdominal pain, chest pain, and similar maladies.
As to Mr. Patterson's vision impairment and borderline IQ, the Commissioner argues that "it is well settled that a pre-existing impairment which did not preclude a claimant from working will not constitute a basis for a finding of disability." Citing Craig v. Chater, 76 F.3d at 596 n. 7. This is an improper application of rule to fact. In this case, Mr. Patterson's pre-existing impairments are fairly considered on the record as a whole where they co-exist with other impairments that caused a deterioration in the Plaintiffs overall condition. It is clear that Mr. Patterson did not claim that he became disabled until after he was diagnosed with, among other things, diabetes and hepatitis C, in addition to his existing medical condition impairments. His limitations due to all his impairments are the proper subjects for determination of disability.
In cases such as Mr. Patterson's, where a claimant appears pro se at the hearing, an ALJ has "'a duty to assume a more active role in helping claimants develop the record.'" Craig v. Chater, 76 F.3d 585, 591 (4th Cir. 1996) (finding that the ALJ "fully discharged the duty" by questioning the claimant on "all relevant matters . . . [including] her education level (ninth grade), her ability to read and write, her living conditions, her former work, her daily activities, and her subjective complaints of pain . . . all of her medical records in painstaking detail). While the hearing transcript reveals that the ALJ touched on these types of questions, it was more of a perfunctory nature and therefore inadequate. A pro se witness who, as a matter of law, is entitled to the ALJ's help in developing the record, should be more fairly probed as to the effect of his impairments which are fairly put forward in his medical evidence, especially as it relates to nonexertional factors. Id.
It is correct that it is within the ALJ's province to determine whether a claimant's subjective reports of pain are credible and that they must be based on objective medical evidence "that could reasonably be expected to produce the pain alleged." Craig v. Chater, 76 F.3d at 591, 593. Clearly, the evidence on the record supports Mr. Patterson's subjective complaints of pain, and he admits that on a daily basis, pain is a "four" on a "scale of one to ten." (R. at 52). The ALJ reviewed the evidence, and although he failed to incorporate all of the impairments fairly into his questions to the expert, he reviewed all the records and still found that the claims of pain weren't credible. The ALJ's finding that "claimant's testimony and statements [were] not credible regarding the extent to which his impairments affect his functional abilities" was, however, within his discretion. (R. at 27).
In his ruling, the ALJ recites the highlights of the medical evidence, including that Mr. Patterson experienced "decreased intellectual functioning, general weakness and pain, he is restricted from engaging in more than routine tasks," but he did not incorporate that information into the hypotheticals that he posed to Dr. Beale, the vocational expert. (R. at 25)
While the ALJ found that Mr. Patterson "can sit without difficulty," he failed to elicit at the hearing the length of time Mr. Patterson could do so. In order to rely on the vocational expert's testimony that Mr. Patterson could engage in sedentary work, it is the ALJ's burden to prove that Mr. Patterson could intermittently sit, stand, walk, and lift for an entire workday, on a "day in, day out basis." (R. at 59). The inability to sit for 6 hours in an 8 hour work day precludes a finding that a plaintiff can engage in sedentary work. See 20 C.F.R. § 404.1567.
In addition, the Commissioner argues that Mr. Patterson is not illiterate under 20 C.F.R. § 416.964 (b)(1), and even if he is illiterate, it is not relevant. Mr. Patterson's limited ability to read and write is noted throughout his medical history and also in Dr. Browne's evaluation. Education is most certainly a vocational factor that must be considered, within that category of considerations is literacy. While the extent of Mr. Patterson's difficulty reading and writing is unclear, the ability to write a few spelling words does not mean a person is literate under the rules. A person who is literate must be able to read or write "a simple message such as instructions or inventory lists." 20 C.F.R. § 416.964 (b)(1). On remand, the ALJ should develop the evidence as to Mr. Patterson's literacy and incorporate this information, as well as other education information, into his hypothetical questions.
This is not a case where the ALJ's findings and his reliance on Dr. Beale's testimony as substantial evidence on the record is a discretionary decision. See Goodermote v. Secretary, 690 F.2d 5, 8 (1st Cir. 1982) (holding that where the ALJ failed to specifically refer to certain medical reports, but accurately discussed the contents, there was no error). This is a case where the ALJ engaged in impermissible selectivity in the variables he presented to the vocational expert which did not fairly represent the evidence of the claimant's impairments that were not subject to a credibility finding by the ALJ.
It may be that following a new hearing in which the ALJ will have the opportunity to elicit more testimony of the Plaintiff and propound additional questions to the vocational expert, the result will be the same. However, the case must nevertheless be returned to require the ALJ to review a record that includes a vocational expert's testimony that fairly responds to all of Mr. Patterson's impairments that are supported by the record.
Conclusion
For the foregoing reasons, it is recommended that the final decision of the Commissioner be VACATED and that it be REMANDED to the SSA for a new hearing consistent with the law of this circuit as addressed herein.
Notice to Parties
Failure to file written objections to the proposed findings, conclusions and recommendations of the magistrate judge contained in the foregoing report within ten (10) days after being served with a copy of this report shall bar you from attacking on appeal the findings and conclusions accepted and adopted by the District Judge except upon grounds of plain error.