Summary
stating that the determination whether an attempt to work "confirm or refute the existence of a disability" should be made on a case by case basis
Summary of this case from Ferstl v. BarnhartOpinion
Case No. 00-4155-JAR
March 28, 2003
MEMORANDUM AND ORDER ADOPTING RECOMMENDATION AND REPORT
The Commissioner of Social Security denied Plaintiff's application for disability insurance benefits and supplemental security income under sections 216(i), 223, 1602 and 1614(a)(3)(A) of the Social Security Act ("Act"). Plaintiff sought review of the Administrative Law Judges's (ALJ) decision and the Honorable John Thomas Reid issued a Recommendation and Report (Doc. 18) which found that the decision of the Commissioner should be reversed and the case remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g).
42 U.S.C. § 416(i), 423, 1318a, and 1382c(a)(3)(A).
The matter is currently before the Court upon Defendant's Objection to the United States Magistrate Judge's Report and Recommendation (Doc. 19). The standards this Court must employ when reviewing objections to the recommendation and report are clear. Only those portions of the recommendation and report that have been specifically identified as objectionable will be reviewed. The review of those identified portions is de novo and the Court must "consider relevant evidence of record and not merely review the magistrate judge's recommendation."
See Garcia v. City of Albuquerque, 232 F.3d 760, 767 (10th Cir. 2000); Gettings v. McKune, 88 F. Supp.2d 1205, 1211 (D.Kan. 2000).
See Griego v. Padilla, 64 F.3d 580, 584 (10th Cir. 1995) (citation omitted).
Defendant objects to the Magistrate Judge's statement that because Plaintiff's work after his alleged onset date of disability constituted an "unsuccessful work attempt," the ALJ improperly discounted Plaintiff's credibility based on his performance of such work. Plaintiff testified that he worked for about three and a half hours doing "roll on roofing," but "[t]he guy [he] had working for [him] did most of the work." Plaintiff also testified that he leveled gravel at a cemetery for about a day-and-a-half and he "couldn't quit [sic] take it because of [his] shoulders." Plaintiff testified that he had no other jobs since 1995 that lasted more than a few days.
R. 32-33.
R. 33-34.
R. 33.
The ALJ found that these work attempts, occurring after the date on which Plaintiff alleges disability, did not constitute substantial gainful activity. Although the ALJ did not specifically find that these work activities were "unsuccessful work attempts," the Magistrate Judge found that they fit the definition. The regulations define any work, occurring after a significant break in the continuity of the claimant's work, lasting less than three weeks, and which the claimant ceased because of his impairment, as an unsuccessful work attempt.
R. 15.
Defendant points out that because the ALJ never determined that Plaintiff performed substantial gainful activity within the relevant time period, it was not necessary for the ALJ to determine whether Plaintiff's work was an "unsuccessful work attempt." Thus, Defendant argues that it was proper for the ALJ to consider the work as one factor in the credibility determination. Defendant cites 20 C.F.R. § 404.1571 and 416.971, and argues that evidence of employment during a period of alleged disability is highly probative of a claimant's ability to work. Sections 404.1571 and 416.971 provide that "[e]ven if the work you have done was not substantial gainful activity, it may show that you are able to do more work than you actually did."
20 C.F.R. § 404.1571 and 416.971 (emphasis added).
The Magistrate Judge found that rather than showing that Plaintiff is able to work, the facts as far as the ALJ investigated them tend to show that such work attempts were merely additional confirmation, at least in Plaintiff's mind, of his inability to perform work activities because of his impairments and the resulting symptoms. Thus, whether work attempts confirm or refute the existence of a disability would depend on the particular facts of a case. In that regard, this case is distinguishable from Williams v. Chater, where the claimant, after his alleged disability began, worked for two years as a real estate agent and for three months as a microfilm machine operator. The claimant in Williams left his employment as a realtor due to economic reasons, not because of physical or emotional problems. Thus, the work didn't end because of the claimant's impairment. Here, Plaintiff tried to work two different jobs. Even with extra help, he only worked for three-and-a-half hours on the first one, and because of his pain he only lasted a day-and-a-half on the second one. While facts similar to those in Williams may weigh against the claimant's credibility, the Court agrees with the Magistrate Judge that the work attempts in the present case do not support the ALJ's finding that Plaintiff's allegations are incredible.
See Koss v. Schweiker, 582 F. Supp. 518, (S.D.N.Y. 1984) (stating that the court had no difficulty accepting the proposition that the existence of a disability may not become known during the period of disability and that later unsuccessful work efforts may confirm its existence, and that "the ALJ should carefully weigh the evidence to determine whether plaintiff's subsequent work history confirms or refutes the existence of disability during eligibility"); see also Jerome Smith, Social Security Appeals in Disability Cases, 28 ADMIN. L. REV. 13, 21 (1976) ("It is wise for an attorney to discuss with the claimant his past and current attempts to work. Many administrative law judges feel that effective evidence of disability is found in unsuccessful work attempts.")
923 F. Supp. 1373, 1379 (D.Kan. 1996).
Id.
Defendant further objects to the Magistrate Judge's statement that the evidence of record is controverted and that some of the evidence supports the credibility of Plaintiff's allegations, relying on the opinion of Daniel D. Zimmerman, M.D., a consultative examiner. Dr. Zimmerman opined that Plaintiff could stand or walk for less than two hours and sit for less than six hours in an eight hour workday.
R. 243.
Defendant argues that the ALJ properly discounted Dr. Zimmerman's opinion as unsupported by Dr. Zimmerman's own objective findings and as contrary to Plaintiff's own testimony that he could stand for about two hours before he must sit. The Magistrate Judge properly found that there are objective findings in Dr. Zimmerman's report that support his disability finding. Dr. Zimmerman's opinion regarding limitations in Plaintiff's ability to sit, stand, and walk, is based upon his consideration of the "severity of [Plaintiff's] pain and discomfort affecting the lumbar paraspinous musculature." Dr. Zimmerman's examination revealed tenderness from L4 through S1, tenderness of the lumbar paraspinous musculature, reduced pinprick perception on the right side, bilateral sciatic notch tenderness, bilateral positive straight leg raising test, and pain affecting the lumbar paraspinous musculature during both straight leg raising and the bounce test. Dr. Zimmerman also reviewed "numerous x-rays demonstrating that [Plaintiff] has extensive pathology in his cervical spine, shoulders, and lumbosacral spine."
Defendant cites to pages 17 and 50 of the Record to show that Plaintiff's own testimony shows that he could stand for about two hours before he must sit. Page 17 is the ALJ's decision that states that Plaintiff testified that he "grocery shops with his wife, and can stand for about two hours on a good day, otherwise he has to sit on a bench and wait." Page 50, however, is Plaintiff's actual testimony in response to a question about how long he is in the store when he goes shopping with his wife. Plaintiff answered that "probably on a good day a couple of hours maybe." W hen asked whether he was on his feet the whole time, he responded "[n]o, most of the time they have little benches up in the front. Sometimes I'll disappear and go up there and sit down." (Emphasis added)
R. 243.
R. 241-42.
R. 242.
The Magistrate properly found that the ALJ failed to explain why he rejected Dr. Zimmerman's opinion regarding Plaintiff's ability to sit, stand, or walk. An ALJ may not reject a physician's opinion regarding Plaintiff's RFC without explaining why it was rejected.
See Soc. Sec. Rul. 96-8p, 1996 WL 374184, at *7.
Defendant points to the opinion of Dr. Reser, Plaintiff's treating physician, that Plaintiff could sit for six hours and stand for two hours in an eight hour day. The Magistrate Judge found that the evidence is controverted due to conflicting RFC assessments. While it is true that a treating physician's opinion is usually entitled to greater weight than that of a consulting physician, it is the ALJ's function to resolve conflicts among the various medical opinions of record. Therefore, with regard to Dr. Reser's and Dr. Zimmerman's conflicting RFC assessments, the Magistrate Judge correctly found that "[s]uch evidence is for the ALJ to weigh and make findings."
Tr. 267.
See 20 C.F.R. § 404.1527(d) and 416.927(d); Washington v. Shalala, 37 F.3d 1437, 1441 (10th Cir. 1994); Hintz v. Chater, 913 F. Supp. 1486, 1492 (D.Kan. 1996).
See Casisas v. Secretary of HHS, 933 F.2d 799, 801 (10th Cir. 1991) (citing Richardson v. Pereles, 402 U.S. 389, 399 (1971)).
Dr. Reser's opinion was not before the ALJ. Plaintiff requested review and submitted these additional medical records to the Appeals Council which accepted them and made them part of the record. See R. 9.
Defendant's objections are overruled based on the Court's de novo review, considering the relevant evidence of record. The Court accepts the February 5, 2003 Recommendation and Report (Doc. 18) and adopts it as its own.
IT IS THEREFORE ORDERED that Defendant's Objection to the United States Magistrate Judge's Recommendation and Report (Doc. 19) shall be OVERRULED.
IT IS FURTHER ORDERED that this case be reversed and remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings in accordance with this Memorandum and Order Adopting Recommendation and Report.
IT IS SO ORDERED.