Opinion
Civ. No. 98-3320 (DRD)
September 29, 1999.
Agnes S. Wladyka, Esq., Abromson Carey, Newark, N.J., Attorney for Plaintiff.
Faith S. Hochberg, Esq., United States Attorney, By: Anthony J. Labruna, Esq., Assistant U.S. Attorney, Newark, N.J., Attorney for Defendant.
O P I N I O N
Ms. Rumpeltin appeals pursuant to 42 U.S.C. § 405(g) and 1383(c)(3) from a final determination of the Commissioner of Social Security ("Commissioner"), denying her application for social security disability insurance benefits under Title II and XVI of the Social Security Act ("Act"). Ms. Rumpeltin moves for a reversal of the dismissal of her claim by the Administrative Law Judge ("ALJ"). For the reasons set forth below, Ms. Rumpeltin's appeal is granted and the Commissioner's decision will be remanded for further review consistent with this opinion.
STATEMENT OF FACTS' AND PROCEDURAL HISTORY
The following facts are set forth in the administrative records. Ms. Rumpeltin, was born December 4, 1955 (Tr. 55) and has a high school diploma. (Tr. 33) Ms. Rumpeltin last worked from 1990 to 1994 as an emergency room admitting clerk at Bergen Pines County Hospital. (Tr. 33-34) Her clerical duties included registering patients, getting charts, billing, typing information into the computer and processing insurance forms. (Tr. 34) Her job was performed seated, but when needed, she got patients' files which required her to stand and carry up to four files. (Tr 34-35) From March until August 1990, Ms. Rumpeltin worked as a cashier in a supermarket. (Tr 1990) As a cashier, Ms. Rumpelton primarily stood and lifted groceries. (Tr 37) In May 1990, Ms. Rumpelton also worked as a legal secretary for about a year where she typed, took dictation, and scheduled court appearances. (Tr 37-38) Previously, Ms. Rumpeltin also worked as a bookkeeper and a real estate agent. (Tr 38-39)
On July 18, 1995, Ms. Rumpeltin applied for disability insurance benefits under the Act. (Tr. 55-57 and 94-101) Ms. Rumpeltin alleged disability since January 10, 1994 (Tr 55) due to ankylosing spondylitis, a form of arthritis. (Tr. 49) On October 25, 1995 Ms. Rumpeltin's claim was initially denied and denied again on reconsideration on January 2, 1996. (Tr. 67-71, 75) On March 12, 1996 Ms. Rumpeltin requested a hearing before an ALJ. (Tr. 77-78) On March 25, 1997, Ms. Rumpeltin appeared before the ALJ, Honorable Richard L. De Steno. (Tr. 30) In his decision of May 27, 1997 the ALJ held that Ms. Rumpeltin had a severe impairment involving ankylosing spondyltis but that she was not disabled since she retained the residual capacity to perform her past relevant work of bookkeeper, secretary and hospital admissions clerk. (Tr. 19) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Ms. Rumpeltin's request for review on June 17, 1998. (Tr. 4-5) Ms. Rumpeltin now seeks review of the ALJ's decision.
At the March 25, 1997 hearing, Ms. Rumpeltin testified that she is unable to work due to pain caused by ankylosing spondylitis. (Tr. 49) Further, Ms. Rumpeltin testified that she experiences pain in her hips, lower back and spine. (Tr. 40)
Ms. Rumpeltin testified that she cannot sit or stand for long periods of time because of constant pain. (Tr. 40-53) Ms. Rumpeltin testified that she must lie down after sitting or standing for ten to twenty minutes. (Tr. 44) She stated that she fell down the stairs and experiences excruciating pain. (Tr. 44-46) She also testified that she loses feeling and occasionally cannot hold things because of Raynaud's syndrome. (Tr. 51) She then testified that she suffers from depression and headaches. (Tr. 52) The record repeatedly reflects that Ms. Rumpeltin was bent over and contorted throughout the hearing. (Tr. 32, 46, 49) Ms. Rumpeltin testified that she cannot remember the last time she sat upright. (Tr. 46) Ms. Rumpeltin testified that she can drive to the doctor and purchase groceries when necessary. (Tr. 42) Ms. Rumpeltin testified that she takes Fiorinal with codeine, aspirin, Paraforn Forte, and Tylenol for the pain. (Tr. 40-42)
MEDICAL EVIDENCE
Dr. Frank Mazzarella is Ms. Rumpeltin's treating physician. (Tr. 95) In November of 1992 Dr. Mazzarella's records show that Ms. Rumpeltin had acute arthritis. (Tr. 132) In a letter dated January 14, 1993, Dr. Charles G. Satir wrote Dr. Mazzarella that Ms. Rumpeltin had a long history of low back pain and was bedridden for three days because of the pain. (Tr. 133) The letter recited that Dr. Satir prescribed Ms. Rumpeltin: Soma, Fiurinal with codeine, Phenylbutazone for pain, and Trental for Raynaud's syndrome. On July 8, 1993 to May 3, 1994 Dr. Mazzarella's progress notes outlined Ms. Rumpeltin's medical treatment for abrasions throughout her body and a dislocated shoulder. (Tr. 128-130) Furthermore, Dr. Mazzarella's notes indicated that the initial injuries resulted from an altercation between Ms. Rumpeltin and her brother. (Tr. 128) Dr. Mazzarella's notes indicated that during this time Ms. Rumpeltin received treatment for her injuries, chronic pain and anxiety; and on May 3, 1994 Ms. Rumpeltin decided to apply for disability. (Tr. 130) On September 12, 1995 Dr. L. Vassallo, Social Security's consultative expert, concluded Ms. Rumpeltin's assessment with: "1. This patient who has an ankylosis spondylitis of her back has clinical evidence of stiffening and very difficult motion of the right hip. 2. Stiffness of her lumbosacral spine. 3. This patient cannot sit, bend or stand for long periods of time. 3. [4.] She can use both hands for fine and gross manipulation." (Tr. 165) On July 7, 1995 Ms. Rumpeltin had a heart test by Dr. Savino, which ruled out the source of Ms. Rumpeltin's pain as cardiac. (Tr. 159) On September 29, 1995 Dr. Philip Silverberg sent a memo to Dr. Mazzarella stating that Ms. Rumpelton has mild scoliosis. (Tr. 140-141) Dr. Randall W. Miller's notes indicated that he treated Ms. Rumpeltin as an out patient from March 3, 1996 to February 3, 1996. (Tr. 193-200) Dr. Miller's notes recorded that initially Dr. Miller found no pathology of the pelvis (Tr. 193) but subsequently treated Ms. Rumpeltin for ankylosing spondylitis and severe pain which at times radiated down Ms. Rumpeltin's legs and caused spasms.
DETERMINATION OF DISABILITY AND BURDENS OF PROOF
Under Social Security guidelines, disability is defined as the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(2)(A).
The Secretary of Health and Human Services ("Secretary") has promulgated a five-step analysis for evaluating a claimant's disability.See 20 C.F.R. § 404. The Secretary first considers whether the claimant is currently engaged in "substantial gainful activity." 20 C.F.R. § 404.1520(a). If the claimant is working and the work is substantial gainful activity, her application for disability benefits is automatically denied. See 20 C.F.R. § 404.1520(b). If the claimant is not employed, the ALJ then proceeds to step two and determines whether the claimant has a "severe impairment" or "combination of impairments" 20 C.F.R. § 404.1520(c). A claimant who does not have a "severe impairment" is not disabled. Id.
Third, if the impairment is found to be severe, the ALJ determines whether the impairment is listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. If so, the claimant is conclusively presumed to be disabled, and the evaluation ends there. See 20 C.F.R. § 404.1520(d). If the impairment is not a listed impairment or its equivalent, the ALJ proceeds to step four.
At the fourth step, the ALJ determines whether the claimant can return to his previous type of employment. See 20 C.F.R. § 404.1520(e). If the claimant can perform her previous work, the claimant is not disabled. Id. The claimant has the burden of proving that she is unable to return to her former occupation. Rossi v. Califano, 602 F.2d 55, 57 (3d Cir. 1979). The Rossi court noted that a "plaintiff satisfies her initial burden of showing that she is unable to return to her previous employment when her doctor substantiates her subjective claims." Id. If the claimant has satisfied her initial burden that she is no longer able to perform her previous type of employment, the evaluation must continue to the fifth and final step.
For the fifth step "the burden of proof shifts to the Secretary to show that the claimant, given [his] age, education and work experience, has the capacity to perform specific jobs that exist in the national economy." Id. at 55, 57. Entitlement to benefits is dependent on a finding that the claimant is incapable of performing some other type of work in the national economy. See 20 C.F.R. § 404.1520(f) (1995).
ADMINISTRATIVE FINDINGS
On May 27, 1997, the Administrative Law Judge, Richard L. De Steno, determined the following:
1. The claimant met the disability insured status requirements of the Act on January 10, 1994 and continues to meet them through the date of this decision.
2. The claimant has not engaged in substantial gainful activity since January 10, 1994.
3. The medical evidence establishes that the claimant has had a "severe" impairment involving ankylosing spondlitis, but does not establish medical findings which meet or equal in severity the clinical criteria of any impairment listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's subjective complaints of disabling pain and other symptoms and limitation precluding all significant work activity are not credited or supported by the evidence.
5. The claimant's residual functional capacity has been, since January 10, 1994, limited to performing work that involves lifting and carrying up to 10 pounds; sitting up to six hours, and standing and walking up to two hours in an eight hour day; and a full range of sedentary work. The claimant has not had any significant non-exertional limitations.
6. The claimant has had, since January 10, 1994, the residual functional capacity to perform her past relevant work of bookkeeper, secretary, and hospital admissions clerk.
7. The claimant has not been disabled as defined by the Social Security Act and its regulations.
STANDARD OF REVIEW
A court must accept the findings of fact by the Commissioner if those findings are supported by "substantial evidence." 42 U.S.C. § 495(g). The Supreme Court has defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," which is "more than a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Morales on behalf of Morales v. Bowen, 833 F.2d 481, 488 (3d Cir. 1987). The Court of Appeals for the Third Circuit has developed certain rules to scrutinize the evidentiary basis for administrative findings:
This oft-cited language [describing the standard of substantial evidence] is not, however, a talismanic or self-executing formula for adjudication; rather, our decisions make clear that determination of the existence vel non of substantial evidence is not merely a quantitative exercise. A single piece of evidence will not satisfy the substantiality test if the Secretary ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence — particularly certain types of evidence (e.g., that offered by treating physicians) — or if it really constitutes not evidence, but mere conclusion. . . . The search for substantial evidence is thus a qualitative exercise without which our review of social security disability cases ceases to be merely deferential and becomes instead a sham.Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983) (citations omitted). "However, `even if the Secretary's factual findings are supported by substantial evidence, a court may review whether the administrative determination was made upon correct legal standards.'" Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983) (quoting Curtain v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981)).
To enable a court to properly perform its function of review, an administrative decision "should be accompanied by a clear and satisfactory explanation of the basis on which it rests." Cotter v. Harris, 642 F.2d 700, 704 (3d Cir.), reh'g denied, 650 F.2d 481 (1981). The ALJ should indicate not only the evidence which supports his or her conclusion, but also indicate "significant probative evidence" that was rejected in order for the reviewing court to determine whether such evidence was not credited or simply ignored. Id. at 705. Additionally, when faced with conflicting evidence, an administrative decision must adequately explain in the record its reasons for rejecting or discrediting competent evidence. Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D.Pa. 1987).
DISCUSSION
The duty of a district court is not to review the case de novo, but instead to discern whether substantial evidence exists in the record to support the findings and determinations of the ALJ. See Bradley v. Bowen, 667 F. Supp. 161 (D.N.J. 1987).
Ms. Rumpeltin asserts the ALJ's decision was not supported by substantial evidence. Specifically, Ms. Rumpeltin contends the following: 1) The Commissioner's determination that Ms. Rumpeltin has not sufficiently established that her impairments as defined by Section 216(I) and 223 of the Social Security Act, either singularly or in combination is of such severity as to preclude her from engaging in substantial gainful activity; 2) the Commissioner improperly evaluated the medical evidence; 3)the Commissioner erred in not considering Ms. Rumpeltin's non-exertional impairment, pain.
Generally, a claimant who wishes to qualify for Social Security disability benefits must demonstrate that there is some "medically determinable basis for an impairment that prevents him from engaging in any substantial gainful activity for a statutory twelve-month period."Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987). A claimant may make such a showing in one of two ways. The claimant can introduce medical evidence showing that she is disabled per se because she suffers from one or more of a number of serious impairments delineated in 20 C.F.R. Regulations No. 4, Subpart P, Appendix 1. If, however, the claimant's impairments do not meet or equal the Listing of Impairments, the claimant must demonstrate that she is nevertheless unable to engage in any other kind of substantial gainful work existing in the national economy.
The ALJ found that Ms. Rumpeltin was not under a disability as defined in the Social Security Act at any time through the date of the ALJ's decision. The ALJ determined that Ms. Rumpeltin had a severe impairment, but that the medical evidence did not establish that the impairment equaled in severity the clinical criteria of any impairment listed in Regulations No. 4, Subpart P, Appendix 1.
Ms. Rumpeltin first argues that the Commissioner improperly evaluated the medical evidence. In considering Ms. Rumpeltin's testimony, the ALJ has considerable discretion in evaluating the credibility of a claimant.See Williams v. Sullivan, 970 F.2d 1178, 1186-87 (3d Cir. 1992), cert. denied, 502 U.S. 924 (1993); LaCorte v. Bowen, 678 F. Supp. 80, 83 (D.N.J. 1988). The ALJ must view the claimant's complaints in light of the medical evidence in the records. Id.
In finding that Ms. Rumpeltin's "subjective complaints of disabling pain and other symptoms and limitation precluding all significant work activity are not credible or consistent with the Social Security Ruling," (Tr. 17) the ALJ evaluated Ms. Rumpeltin's "to be particularly lacking in credibility". (Tr. 18)
By the terms of the Act, the ALJ must consider the combined effect of exertional and non-exertional impairments. Exertional impairments involve limitations on Ms. Rumpeltin's ability to meet certain strength requirements of a job. 20 C.F.R. § 404.1545(b). Non-exertional impairments, however, involve limitations such as postural or manipulative impairments that do not limit physical exertion, but may prevent one from engaging in gainful activity. 20 C.F.R. § 404.1545(d). Such postural or manipulative functions include reaching, handling, stooping, climbing, crawling, or crouching. 20 C.F.R. § 404.1569a(c)(vi). The ALJ must also provide "a clear and satisfactory explanation of the basis on which it rests." Cotter, 642 F.2d at 704.
In this case, the ALJ concluded that the testimony and the medical records established that Ms. Rumpeltin has been "unable to perform the degree of standing, walking, lifting, and carrying associated with work in the light and more exertional categories." (Id.) The ALJ, on the basis of the medical evidence recited above, concluded that Ms. Rumpeltin has residual functional capacity to perform work that involves lifting and carrying objects weighing up to 10 pounds; sitting up to six hours, and standing and walking up to two hours in an eight hour day; and the full range of sedentary work. (Id.) Ms. Rumpeltin consistently testified to constant pain (Tr. 40-53), the treating physician, and all but one of his referrals' records (TR. 140-141, Dr. Silverberg), report that the Ms. Rumpeltin's ankylosing spondylitis results in significant pain (Tr. 132, Dr. Mazzarella, Tr. 133, Dr. Satir, Tr. 193 Dr. Miller, Tr. 165, Dr. Vassallo) As noted above, Dr. Vassallo was the Commissioner's consultative expert and concluded that Ms. Rumpeltin: cannot straighten without "excruciating back pain." (Tr. 136)
The ALJ failed to provide reason to give more weight to one physician's findings (Tr. 15, Dr. Silverberg of Clara Mass. Hospital) against other physicians, particularly Ms. Rumpeltin's treating physician (Dr. Mazzarella). The ALJ's reliance on Dr. Savino (Tr. 15)was misplaced because Dr. Savino was testing Ms. Rumpletin's heart and discounted it as a reason for Ms. Rumpeltin's pain. (Tr. 159) The ALJ did not consider Ms. Rumpeltin's non-exertional impairment of pain nor did he consider significant evidence of psychiatric problems which appeared in the reports of several examining physicians as required (supra p. 12).
The ALJ's judgment that Ms. Rumpeltin lacked credibility is inconsistent with the record in the case. The ALJ simply ignored the conclusions of the medical evidence which he relied upon from the consultative expert. The ALJ states that Ms. Rumpeltin can perform work that involves sitting up to six hours (Tr. 10) despite overwhelming evidence to the contrary, including the report of the consultative expert, Dr. Vassalo, who states that Ms. Rumpeltin "cannot sit, bend or stand for long periods of time." (Tr. 165).
In sum, substantial evidence does not exist to support the ALJ's finding that Ms. Rumpeltin has had, since January 10, 1994 the residual functional capacity to perform her past relevant work of bookkeeper, secretary, and hospital clerk.
CONCLUSION
It is difficult to believe that there are any jobs in the national economy that Ms. Rumpeltin is capable of performing, but the case will be remanded to the ALJ to undertake the fifth step in the five step analysis for evaluating a claimant's disability. An appropriate order will be entered.