Opinion
Civil Action No. 99-2247-GTV
March 1, 2001
MEMORANDUM AND ORDER
Plaintiff Estella L. Robbins brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Commissioner's decision to deny her application for supplemental security income benefits filed under Title XVI of the Social Security Act. For the reasons set forth below, the court reverses the Commissioner's decision, and remands the case for further proceedings.
I. Procedural Background
On December 6, 1995, Plaintiff filed an application for supplemental security income benefits claiming disability since November 30, 1991. The application was denied both initially and upon reconsideration. At Plaintiff's request, a hearing was held before an administrative law judge (ALJ). The ALJ issued a written decision on July 25, 1997, in which he ordered that Plaintiff was not entitled to supplemental security income benefits. Plaintiff requested the Appeals Council to review the ALJ's unfavorable decision. The Appeals Council denied her request on April 2, 1999. The ALJ's decision, therefore, stands as the final decision of the Commissioner.
II. Discussion
The court's review is limited to determining whether (1) the record as a whole contains substantial evidence to support the Commissioner's decision and (2) the Commissioner applied the correct legal standards in arriving at his decision. See 42 U.S.C. § 405(g); Ross v. Chater, 930 F. Supp. 1452, 1454 (D.Kan. 1996) (citing Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994)). To determine whether substantial evidence supports the decision, the court examines the record as a whole, including any additional material submitted to the Appeals Council. See Hodgson v. Apfel, No. 98-2067, 1999 WL 46689, at *4 (10th Cir. Feb. 3, 1999) (citing O'Dell v. Shalala, 44 F.3d 855, 858, 859 (10th Cir. 1994)). Substantial evidence is "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Reversal may be appropriate not only where there is lack of substantial evidence, but where "the Commissioner uses the wrong legal standards or the Commissioner fails to demonstrate reliance on the correct legal standards." Banks v. Apfel, No. 98-4214-SAC, 2000 WL 1863382, at *1 (10th Cir. Nov. 13, 2000) (citing Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994)).
In his July 25, 1997 order, the ALJ made the following findings:
* [Plaintiff] has not engaged in substantial gainful activity since November 30, 1995.
* The medical evidence establishes that [Plaintiff] has atherosclerotic heart disease with an occlusion of the right carotid artery, mild osteoarthritis of the knees bilaterally, minimal disc bulging at C5-6, chronic obstructive pulmonary disease with emphysema, and major depression, but she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, 20 C.F.R. Part 404.
* [Plaintiff's] subjective allegations of pain and disabling limitations are . . . not credible. . . .
* [Plaintiff's] impairments, in combination, prevent her from performing the following work-related activities: She cannot lift more than ten pounds frequently or twenty pounds occasionally. She cannot engage in work activities requiring prolonged walking. She cannot perform any work activity without having the opportunity to alternate sitting and standing positions at will in order to relieve pain. Her ability to write during a workday is limited to signing her name and making brief entries in logs or reports. She cannot perform any work activity requiring even moderate exposure to extreme heat and humidity, extreme cold, smoke, fumes, dust, odors, or gases. In addition, [Plaintiff's] mental impairment, which is not considered separately severe, imposes on her [the following functional limitations:
Slight restrictions of activities of daily living; Slight difficulties in maintaining social functioning; and Seldom deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner (in work settings or elsewhere).]
* [Plaintiff] has no past relevant work or transferable work skills.
* [Plaintiff] is 52 years old, which is defined as closely approaching advanced age ( 20 C.F.R. § 416.963).
* [Plaintiff] has a marginal education, although she completed the eighth grade ( 20 C.F.R. § 416.964).
* Considering [Plaintiff's] above-described residual functional capacity, her age, marginal education, and lack of past relevant work experience, she is able to perform unskilled light jobs in the occupations of photography finisher and hand packager which exist in significant numbers in the national economy. . . .
. [Plaintiff] was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision ( 20 C.F.R. § 416.920(f)).
Plaintiff contends that the ALJ incorrectly concluded that she has the physical residual functional capacity to perform a narrow range of light work. She complains that the ALJ should have found, at best, that she has the residual functional capacity to perform only sedentary work. After thorough evaluation, the court concludes that the ALJ's determination is substantially supported by the record and should be affirmed.
A person is able to perform light work if he or she can lift up to twenty pounds at a time and frequently lift and carry objects weighing up to ten pounds. See 20 C.F.R. § 404.1567(b). In determining that Plaintiff is able to perform light work, the ALJ found that Plaintiff is able to lift up to ten pounds frequently, and twenty pounds occasionally. Plaintiff complains about this finding, because she testified at the hearing that she experiences back pain when lifting only five pounds. However, a medical consultant named N. Berner, M.D. reviewed the medical and other evidence concerning Plaintiff's case, and determined that Plaintiff should be able to occasionally lift up to twenty pounds and frequently lift up to ten pounds.
None of Plaintiff's treating physicians gave an assessment concerning Plaintiff's ability to lift objects.
Moreover, the ALJ reasonably concluded that Plaintiff's testimony concerning her complaints of pain and other symptoms was exaggerated. Substantial evidence indicates that Plaintiff's reports of pain and disabling symptoms were inconsistent with the objective medical evidence. See Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988) (noting that the court should consider "the consistency or compatibility of nonmedical testimony with objective medical evidence" in determining whether a claimant's pain is disabling). In addition, substantial evidence shows that Plaintiff refused multiple treatment options for her back pain, including surgery, physical therapy, occupational therapy, and EMG testing. Plaintiff's refusals can be deemed as inconsistent with the behavior of a person experiencing severe or disabling pain. See id. (noting that the extensiveness of a claimant's attempts to obtain relief is relevant to a determination of whether the claimant's pain is disabling).
Plaintiff next contends that, even if she has the residual functional capacity to perform light work, she is disabled under the Social Security Act because she is illiterate. The Medical Vocational Guidelines, commonly referred to as the Grids, provide that a person is disabled if he or she (1) has a residual functional capacity limited to light work; (2) is closely approaching advanced age (i.e., between the ages of 50 and 54); (3) is illiterate; and (4) possesses no previous work experience. See 20 C.F.R. pt. 404, subpt. P, app. 2, table 2 § 202.09. In this case, the ALJ found that Plaintiff possessed a residual functional capacity limited to light work; that Plaintiff was 52 years old; and that Plaintiff had no prior relevant work experience. The ALJ also apparently found that Plaintiff was literate, because he did not find her disabled pursuant to the Grids. Moreover, he stated in his "Findings" that Plaintiff is able to engage in writing during a workday, providing it is limited "to signing her name and making brief entries in logs or reports."
Plaintiff complains that the ALJ's finding of literacy is not substantially supported by the record. She argues that the ALJ should have determined that she is illiterate, because she is able to read, but not write. After thorough evaluation, the court concludes that it is unable to address thoroughly Plaintiff's argument. Based upon the record before it, the court is unable to conclude whether the ALJ followed the correct legal standards in determining whether Plaintiff is literate and, therefore, unable to determine whether the Commissioner's decision should be affirmed. As previously stated, the court's function in reviewing a decision of the Commissioner is not only to determine whether the Commissioner's decision is substantially supported by the record as a whole, but to determine whether the Commissioner applied the correct legal standards in arriving at his decision. See 42 U.S.C. § 405(g); Ross, 930 F. Supp. at 1454 (citing Castellano, 26 F.3d at 1028). A reversal may be appropriate where the Commissioner either uses the wrong legal standards, or fails to demonstrate his reliance on the correct legal standards. See Banks, 2000 WL 1863382, at *1 (citing Glass, 43 F.3d at 1395).
It is well-settled that a person's literacy or lack thereof turns on his or her ability to read as well as write. See Dixon v. Heckler, 811 F.2d 506, 510 (10th Cir. 1987). For purposes of applying the Grids, a person is considered illiterate if he or she "`cannot read or write a simple message such as instructions or inventory lists even though the person can sign his or her name.'" Id. (quoting 20 C.F.R. § 404.1564(b)(1)).
In his written order, the ALJ makes only one reference as to the basis for his apparent belief that Plaintiff is literate. Specifically, in the "General Background" section, he states: "Due to extremely limited reading and writing skills to which [Plaintiff] testified at the hearing, [she] is considered to have only a marginal education, despite having completed the eighth grade" (emphasis added). The problem with the ALJ's statement is that Plaintiff's testimony at the hearing alone does not support a determination that Plaintiff is literate under the law. At the hearing, Plaintiff testified as to the following:
* Can you read and write okay?
* I read and spell very poorly.
* All right. Let's take reading first. Can you read a newspaper article or magazine article?
* If the words aren't too big.
* Do you read books at all?
* Very seldom.
* Do you read letters that people write to you or notes, maybe somebody telling you where they've gone?
* Yes, sir.
* You can read that sort of thing.
* Yes, sir.
* Okay. Now what about your writing? Do you do much writing?
* Not if I don't have to.
* Do you have difficulty spelling words?
* Yes.
* Could you write out a list or some instructions for somebody else or perhaps directions, something like that?
* No, sir.
* You couldn't do that?
* No, sir.
Plaintiff's testimony establishes, at best, that she is able to read with some difficulty, but unable to write even simple messages such as a list, directions or instructions. A person is considered illiterate if he or she "`cannot write a simple message such as instructions or inventory lists.'" Dixon, 811 F.2d at 510 (quoting 20 C.F.R. § 404.1564(b)(1)).
The court notes, however, that the record contains several other pieces of evidence that may support a finding that Plaintiff is literate. For instance, the record contains several questionnaires that purportedly were filled out by Plaintiff in Plaintiff's own handwriting. One questionnaire, dated December 27, 1995 and entitled "Activities of Daily Living," contains extensive information concerning Plaintiff and her alleged disability. In addition, it contains Plaintiff's signature and the following questions and answers:
* Did you require any help to complete this form?
* No.
* Was this form completed in your own handwriting?
* Yes.
Nevertheless, the court is unable to conclusively determine, based upon the record before it, that the ALJ relied upon the proper legal standards in making his determination concerning Plaintiff's literacy; therefore, the court is unable to affirm the Commissioner's decision that Plaintiff is not disabled. The Commissioner's decision is thus reversed and remanded for further consideration concerning Plaintiff's literacy.
Plaintiff finally contends that the Commissioner erred in finding that her mental impairment causes her to have seldom, as opposed to often, "deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner (in work settings or elsewhere)." After thorough evaluation, the court concludes that its meaningful review of this issue is hindered by an inadequate record, and thus the Commissioner's decision as to it must be reversed.
The ALJ issued a decision in this case on July 25, 1997. Plaintiff requested that the Appeals Council review that decision on September 16, 1997. Along with her request, Plaintiff sent additional evidence that she had acquired from her treating psychiatrist, Dr. Allen L. Hueston. The new evidence consisted of an August 15, 1997 letter written by Dr. Hueston, stating that Plaintiff was being treated in his office for major depression of moderate severity, and a Psychiatric Review Technique Form completed by Dr. Hueston, stating that Plaintiff would often have "deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner (in work settings or elsewhere)." The Appeals Council denied Plaintiff's request on April 2, 1999. In its written order, the Appeals Council stated that it had considered the contentions raised in Plaintiff's request for review, as well as the additional evidence submitted, and "concluded that neither the contentions nor the additional evidence provides a basis for changing the [ALJ's] decision."
Plaintiff acquired this evidence subsequent to the hearing before the ALJ. A claimant is authorized to submit new and material evidence to the Appeals Council providing it relates to the period on or before the ALJ's decision. See Hodgson, 1999 WL 46689, at *2 (citing 20 C.F.R. § 404.970(b)).
Generally, the Commissioner must give controlling weight to a treating physician's well-supported opinion about the nature and severity of a claimant's impairments. See Banks, 2000 WL 1863382, at *10 (citing Adams v. Chater, 93 F.3d 712, 714 (10th Cir. 1996)). The Commissioner may reject a treating physician's opinion, however, if he believes that the physician's opinion is (1) not supported by specific findings, (2) not supported by clinical and/or laboratory diagnostic techniques, (3) inconsistent with other substantial evidence in the record, or (4) brief, conclusory, and unsupported by medical evidence. See id. (citing Castellano, 26 F.3d at 1027, 1029; Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987); 20 C.F.R. § 404.1527(d), 416.927(d)(2)). But to do so, the Commissioner must "`articulate specific, legitimate reasons.'" Id. (quoting Washington v. Shalala, 37 F.3d 1437, 1440 (10th Cir. 1994) (further citation omitted)).
In this case, the Appeals Council failed to articulate any specific, legitimate reasons for rejecting the opinion of Dr. Hueston. The Appeals Council offered no more than the conclusory explanation that "neither the contentions nor the additional evidence provides a basis for changing the [ALJ's] decision." For this reason, the case must be remanded for further proceedings. See Banks, 2000 WL 1863382, at *11 n. 1 (refusing to affirm a decision to deny benefits in part because "the Appeals Council, which simply concluded [without explanation] that . . . the additional evidence provides no basis for changing the [ALJ's] decision," did not give specific, legitimate reasons for rejecting a treating physician's opinion); see also Reyes v. Bowen, 845 F.2d 242, 245 (10th Cir. 1988) (same).
In his briefing to this court, the Commissioner does not address the Appeals Council's failure to specify its reasons for rejecting the opinion of Dr. Hueston; instead, the Commissioner simply suggests several reasons for why the Appeals Council may have rejected the opinion. For example, he points out that there are no treatment notes of Dr. Hueston in the record and that Dr. Hueston specifically stated in his August 15, 1997 letter that "[Plaintiff's] ability to sustain work was never addressed or assessed." While these reasons may or may not be sufficient to reject Dr. Hueston's opinion, and may or may not be the reasons why the Appeals Council, in fact, rejected Dr. Hueston's opinion, the law is clear: To reject a treating physician's opinion, the Commissioner must "`articulate specific, legitimate reasons.'" Banks, 2000 WL 1863382, at *10 (citing Washington, 37 F.3d at 1440 (citation and quotation marks omitted)).
IT IS, THEREFORE, BY THE COURT ORDERED that the decision of the Commissioner is reversed and the case is remanded for further proceedings consistent with this order.
Copies of this order shall be mailed to counsel of record for the parties.
IT IS SO ORDERED.