Opinion
No. C98-2031
May 12, 1999.
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to briefs on the merits submitted herein. On November 18, 1998 this matter was referred to the undersigned United States Magistrate Judge for the issuance of a report and recommendation. It is recommended that the final decision of the Commissioner of the Social Security Administration be reversed and this case remanded for the award of benefits.
Procedural Background
The plaintiff in this case, Clotel Sanders (Sanders), filed an application for disability and supplemental security income benefits on August 14, 1995, alleging an inability to work since August 3, 1995. Sanders' claim was denied both initially and upon reconsideration. On December 4, 1995 Sanders requested a hearing before an administrative law judge (ALJ) and a hearing was held on February 18 1997. In his April 29, 1997 decision, the ALJ found that Sanders is capable of performing jobs existing in significant numbers in the national economy and therefore is not "disabled" as defined in the Social Security Act. Sanders requested the Appeals Council review the decision of the ALJ. On December 23, 1997 the Appeals Council affirmed the decision of the ALJ. On January 26, 1998, the Appeals Council vacated its prior affirmation so that it could consider additional evidence. After the additional evidence was considered, the Appeals Council again denied Sander's request for review, thereby making the ALJ's decision the final decision of the Commissioner of Social Security.
Sanders contends that the ALJ's decision to deny benefits was erroneous for the following reasons. First, Sanders argues that the ALJ did not give sufficient weight to the opinion of her treating physician. Second, Sanders claims that the ALJ's determinations regarding her residual functional capacity (RFC) were erroneous and not based upon substantial evidence. Third, Sanders contends that the ALJ's finding that she was not fully credible was wrong and was not supported by the evidence. Fourth, Sanders claims that the ALJ improperly discounted her subjective complaints of pain. Finally, Sanders argues that the ALJ improperly relied upon the Medical-Vocational Guidelines and failed to consider all relevant factors in determining the existence of other jobs she could perform.
Factual Background
Sanders was born on December 22, 1951, making her 43 years of age at the alleged onset date, 45 years of age at the time of the hearing before the ALJ, and 47 years of age currently. Sanders is a high school graduate and has had no further education or vocational training. Sanders currently lives in Waterloo, Iowa, with her husband and son. Sanders has past work experience as a meat trimmer, a machine operator, a janitor, and a hand packager. Most recently, Sanders worked as a meat trimmer at IBP.
In the past, Sanders has been treated for hypertension, hypothyroidism, degenerative arthritis in her knees, back pain, degenerative arthritis in her right wrist, premenstrual tension, and situational depression. Sanders has had arthroscopic surgery on both of her knees and is taking pain medication for her joint pain other medications for her premenstrual tension and depression. Sanders recovered well from her surgery, but continued to report aching and discomfort in her knees. Sanders also reports continuing pain in her back and pain and weakness in her right wrist.
Sanders' daily activities include cooking, housework, reading, attending church when able, and driving a car once or twice per week. She also does the exercises as prescribed by her doctor. Sanders' family members help her with the housework. She is able to attend to her own personal needs.
Scope of Review — Substantial Evidence
The scope of a district court's review of the Commissioner's final decision is set forth in 42 U.S.C. § 405(g) which provides, in part, that:
[t]he court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . .42 U.S.C. § 405(g).
In order for the court to affirm the ALJ's findings of fact, those findings must be supported by substantial evidence appearing on the record as a whole. See Lochner v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992); Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989). Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Cruse, 867 F.2d at 1184; Taylor v. Bowen, 805 F.2d 329, 331 (8th Cir. 1986). The court must take into account evidence which fairly detracts from the ALJ's findings. Cruse, 867 F.2d at 1184; Hall v. Bowen, 830 F.2d 906, 911 (8th Cir. 1987). Substantial evidence requires "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence." Cruse, 867 F.2d at 1184 (quoting Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). The court must consider the weight of the evidence appearing in the record and apply a balancing test to contradictory evidence. Gunnels v. Bowen, 867 F.2d 1121, 1124 (8th Cir. 1989); Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987).
CONCLUSIONS OF LAW Determination of Disability
Determining whether or not a claimant is disabled is evaluated using a five-step process. 20 C.F.R. § 404.1520(a-f). First, if a claimant is working and the work constitutes substantial gainful activity, she will not be found disabled regardless of her medical condition, age, education, or work experience. Id. Second, a claimant must have an impairment or combination of impairments which significantly limits their physical or mental ability to do basic work activities. Id. Third, if the impairment(s) meets the duration requirement or is listed in Appendix 1, or equals a listed impairment(s), the claimant will be found disabled regardless of age, education, and work experience. See 20 C.F.R. Pt. 404, App. 1, Subpt. P. Fourth, the impairment must prevent the claimant from doing her past relevant work. Fifth, the impairment must prevent the claimant from doing any other work. 20 C.F.R. § 404.1520.
"To establish a disability claim, the claimant bears the initial burden of proof to show that [s]he is unable to perform his past relevant work." Frankl v. Shalala, 47 F.3d 935, 937 (8th Cir. 1995) (citing Reed v. Sullivan, 988 F.2d 812, 815 (8th Cir. 1993)). If the claimant meets this burden, the burden of proof then shifts to the Commissioner to demonstrate that the claimant retains the physical RFC to perform a significant number of other jobs in the national economy that are consistent with the claimant's impairments and vocational factors such as age, education, and work experience. Id.
It is undisputed that Sanders met the disability insured status requirements on the alleged onset date and will continue to do so through December 31, 1999, but not thereafter. It is undisputed that Sanders has not engaged in substantial gainful activity at any time pertinent to this decision. It is also undisputed that Sanders' impairments significantly affect her ability to basic work related activities and prevent her from doing her past relevant work. However, the ALJ found that Sanders' impairments do not meet or equal the level of severity of a listed impairment, nor do they prevent her from doing any other work.
The ALJ determined Sanders' residual functional capacity to be as follows:
Having reviewed the credible evidence of record, the undersigned finds that a combination of the claimant's impairments precludes her from: lifting more than 10 pounds; frequent bending, twisting, or turning; and standing or working more than two hours of an eight-hour workday. After two hours of sitting she would need to move.
Based upon this determination, the ALJ concluded that there are jobs existing in significant numbers in the national economy which Sanders can perform. Examples of such jobs include surveillance monitor, charge account clerk, and order clerk (food and beverage). Therefore, the ALJ declared that Sanders was not under a "disability" as defined in the Social Security Act, at any time through the date of this decision.
Residual Functional Capacity — Discounting Opinion of the Treating Physician
On November 8, 1995, Sanders treating physician, Dr. Kothari, stated his opinion regarding Sanders' ability to work as follows:
[I]n my opinion, it is not going to be possible for Mrs. Sanders to return to any type of work that would be physical or require standing or walking all day long or any heavy lifting or any bending, twisting or turning with her back or kneeling or squatting with her knees.
On February 27, 1996, Dr. Kothari's set forth more detailed restrictions:
The patient also has degenerative arthritis in the right wrist and is unable to use her right wrist for any work, so she has multifocal orthopedic problems, and at this time is not really ready to return to any kind of working situation as she needs to use the cane and she is not able [sic] walk or stand for any length of time on account of her arthritic knee. Also, on account of her problem with her right wrist, she is not able to use her right wrist or do any work that would require repetitive use of her hand and wrist. On account of her back problem, that also poses another problem as far as employability is concerned as she is not able to do any work that would require frequent bending, twisting and turning or any lifting more than five to 10 pounds.
In June of 1996, Dr. Kothari's opinion regarding Sanders' condition and work restrictions remained unchanged. At the close of the hearing, the ALJ instructed Sanders' counsel to obtain Dr. Kothari's most recent opinion regarding Sanders' work restrictions and submit that opinion. Dr. Kothari's opinion as of March 1, 1997 was as follows:
Although I have not treated her for back pain I am aware of her back condition. [B]asically Mrs. Sanders has moderately advanced degenerative arthritic changes in both knees which results into a disability that would prevent her from any work that requires prolonged standing, walking, climbing steps or ladder, kneeling and squatting.
Mrs. Sanders is unable to perform any work that would require prolonged sitting more than one hour at a time or any work that requires frequent twisting, turning and bending with her lower back. She would have a weight restriction of 10 to 15 pounds on account of her back condition.
[S]he could sit one hour at a time before taking a break on account of her back condition.
Because of the arthritic right wrist the patient is unable to do any work that requires repetitive use of her hand and wrist or any work that requires the use of vibrating equipment with her right hand.
The ALJ, however, refused to accord Dr. Kothari's opinion regarding Sanders' work restrictions as related to her back condition, significant weight because Dr. Kothari has never examined nor treated Sanders' back. The ALJ further noted that the records failed to indicate that Dr. Kothari had reviewed the treatment records regarding Sanders' back condition prior to rendering his opinion.
The Eighth Circuit Court of Appeals recognizes that a treating physician's opinion on disability is entitled to substantial weight. Onstead v. Sullivan, 962 F.2d 803, 805 (8th Cir. 1992). "However, a treating physician's opinion is `not conclusive in determining disability status and must be supported by medically acceptable clinical or diagnostic data." Chamberlain v. Shalala, 47 F.3d 1489, 1494 (8th Cir. 1995) (quoting Matthews v. Bowen, 879 F.2d 422, 424 (8th Cir. 1989)). Thus, "[w]hile the opinions of treating physicians are entitled to special weight, they do not automatically control, since the record must be evaluated as a whole." Bentley v. Shalala, 52 F.3d 784, 785-86 (8th Cir. 1995).
In evaluating the record as a whole, the court finds no error in the ALJ's refusal to give controlling weight to Dr. Kothari's opinion regarding Sanders' work restrictions as related to her back condition since Dr. Kothari had never examined nor treated Sanders' back. However, the law does not permit the ALJ to refuse to rely upon it altogether. Dr. Kothari's records do indicate that he treated Sanders over an extended period of time and that he was familiar with her back condition. Furthermore, Dr. Kothari is an orthopedic surgeon and, as such can assess Sanders' entire skeletal system. This evidence has to be helpful to an ALJ. The mere fact that Dr. Kothari never actively treated Sanders' back does not explain why Dr. Kothari's opinion relating to Sanders' wrist and knees was not given controlling weight.
Sanders began treating with Dr. Kothari on August 30, 1995. A clinical examination was conducted and x-rays were reviewed. Dr. Kothari concluded that Sanders had "varus" knees on both sides, a click on the lateral side of the patella, localized tenderness, and uncomfortable and painful flexion beyond 110 degrees. A flexion rotation test was also conducted. The x-rays showed "moderately advanced degenerative arthritic changes in both knees, the left somewhat worse than the right." Along with the degenerative arthritis, Dr. Kothari diagnosed Sanders as suffering from a "probable degenerative and flap tear of the posterior horn of the medial meniscus." Dr. Kothari scheduled Sanders for arthroscopic surgery on her left knee in September of 1995.
In early November of 1995, Dr. Kothari examined Sanders' knees and made the following observations. "She continues to have arthritic pain in both knees from medial compartment arthritis and with varus knee." On December 20, 1995, Sanders returned to Dr. Kothari for a follow-up appointment. Based upon his physical examination of Sanders, Dr. Kothari offered the following opinion:
Patient continues to have sharp pain with catching and clicking in her opposite right knee. Clinically she has localized tenderness over the medial joint space of the posteromedial joint line. Full flexion and flexion rotation was uncomfortable and painful. McMurrays was also uncomfortable and painful with a click on the medial joint space at the posteromedial corner.
Sanders underwent arthroscopic surgery on her right knee on January 8, 1996. Also during the December 20, 1995 visit, Sanders complained of shooting pain, swelling, and stiffness in her right wrist and hand. X-rays of Sanders' wrist were reviewed and resulted in the following finding:
Evidence of old chronic scapholunate dissociation with secondary and degenerative and avascular necrotic type changes in the proximal pole of the navicular bone. The patient also has secondary posttraumatic arthritic changes in the proximal row of the carpal bones with scapholunate dissociation. The patient also has an osteophyte on the radial side of the distal radius.
Dr. Kothari's office notes of March 26, 1996 and June 25, 1996 indicate that Sanders continued to have bilateral knee pain and right wrist pain.
It is beyond dispute that Dr. Kothari was Sanders' treating physician for her wrist and knee problems. Furthermore, as stated above, Dr. Kothari's notes of February 27, 1996 indicate his opinion regarding Sanders' wrist as follows: "Also, on account of her problem with her right wrist, she is not able to use her right wrist or do any work that would require repetitive use of her hand and wrist." However, the hypothetical question posed to the vocational expert at Sanders' hearing failed to mention any restrictions as related to her wrist. The only mention of Sanders' wrist to the vocational expert was the question, "Okay, so the right wrist wouldn't knock out all sedentary?" The vocational expert answered, "No."
Based upon the following, the court finds that the decision of the ALJ to discount Dr. Kothari's opinion regarding Sanders' RFC was not based upon substantial evidence. See Whitmore v. Bowen, 785 F.2d 262, 263-64 (8th Cir. 1986) (an improper hypothetical question cannot serve as substantial evidence under § 405(g), and can result in a remand or reversal); House v. Shalala, 34 F.3d 691, 694 (8th Cir. 1994) (a hypothetical question must completely describe a claimant's individual impairments). As a result, the ALJ's failure to include Dr. Kothari's opinion as it related to Sanders' right wrist impairment is not supported by substantial evidence on the record as a whole.
Subjective Complaints of Pain
Sanders asserts that the ALJ improperly discounted her subjective complaints of disabling pain. Before an ultimate decision regarding a determination of disability can be made, the ALJ must also evaluate the claimant's subjective testimony regarding pain before deciding on whether she is, in fact, disabled. Barry v. Shalala, 885 F. Supp. 1224, 1246 (N.D. Iowa 1995). When evaluating an applicant's claim of pain or other subjective impairment, the ALJ must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant's prior work record, and observations by third parties and treat and examining physicians relating to such matters as: (1) the applicant's daily activities; (2) the duration, frequency and intensity of pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects of medication; and (5) functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir. 1984); Baker v. Secretary of Dep't Health and Human Servs., 955 F.2d 552, 555 (8th Cir. 1992).
The ALJ "is not free to accept or reject the claimant's subjective complaints solely on the basis of personal observations." Polaski, 739 F.2d at 1322 (emphasis in original). Subjective complaints may be discounted if inconsistencies exist in the evidence as a whole. Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir. 1994); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th cir. 1993). When deciding whether subjective complaints are credible, the ALJ must discuss the five factors, as well as any inconsistent medical evidence, and show that all the evidence was evaluated. Herbert v. Heckler, 783 F.2d 128, 130 (8th Cir. 1986). The ALJ must say more than that the testimony on pain is not credible, the ALJ's credibility findings must be explicit. Rainey v. Bowen, 814 F.2d 1279, 1281 (8th Cir. 1987). The hypothetical cannot omit allegations of pain unless the ALJ makes findings that reject the asserted pain and sets forth reasons for doing so. Baugus v. Secretary of Health and Human Servs., 717 F.2d 443, 447 (8th Cir. 1983).
Sanders testified that she could only stay on her feet for 45 minutes to an hour before her legs swelled and she had to elevate her feet. This limitation was included in a hypothetical question posed to the vocational expert. The expert responded that the necessity to elevate her feet would significantly impact Sanders ability to perform unskilled entry level jobs to the extent that it could preclude gainful activity.
The ALJ found several "inconsistencies" in the evidence to support his determination that Sanders' subjective complaints regarding her feet and legs are not credible. Interestingly enough, however, these "inconsistencies" were discovered after the close of the hearing at which Sanders' husband and son were not allowed to testify because the ALJ stated that he believed Sanders.
ALJ: Well, aren't they (Sanders' husband and son) just going to back up what she's said?
ATTY: Absolutely.
CLMT: Uh-huh.
ATTY: Yes, they are.
ALJ: Yeah, well I believe her.
ATTY: All right.
ALJ: I don't think we need that.
Regarding Sanders' activities during the time she allegedly became disabled, the ALJ noted that she cooked, washed dishes, read, attended church when able, drove her car once or twice per week, and does her doctor prescribed exercises. The ALJ also noted that Sanders' family members helped her with the housework, that she spends most of her day lying down, that she has pursued arthroscopic surgery for her knees, and that 0she takes pain medication consistent with her allegations. Nonetheless, it was the ALJ's opinion that "[t]he claimant's rather extensive activities of daily living are not consistent with the presence of disabling pain and other subjective complaints." Other "inconsistencies" relied upon by the ALJ in discrediting Sanders' subjective complaints include the fact that she has not been referred to a pain clinic and she elected not to proceed with knee replacement surgery, which might more effectively alleviate her pain. "[A] `disability' under the Social Security Act does not mean total disability or exclusion from all forms of human and social activity." Barry, 885 F. Supp. at 1249. A claimant's ability to cook, shop, clean, do laundry and visit friends does not constitute substantial evidence that they can engage in substantial activity. Harris v. Secretary of Dep't of Health and Human Servs., 959 F.2d 723, 726 (8th Cir. 1992). "[A] claimant need not prove that he or she is bedridden or completely helpless to be found disabled." Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989). Similarly, the fact that a claimant can drive a car is not dispositive of whether they are disabled. Ludden v. Bowen, 888 F.2d 1246, 1248 (8th Cir. 1989). Therefore, Sanders' ability to perform lightweight routine tasks of everyday living does not constitute substantial evidence that she is not disabled. Moreover, the absence of a referral to a pain clinic is beyond Sanders' control. Finally, Sanders' reluctance to undergo extensive knee surgery is an insufficient basis upon which to discount her current subjective complaints of pain.
Application of the Guidelines
Sanders argues that the ALJ erred by failing to take account her non-exertional impairments and using the Social Security Grid Regulations in making a finding that she was not disabled. The government counters with the fact that the ALJ elicited the testimony of a vocational expert and relied upon the expert's opinion when determining that Sanders was not disabled. The court agrees with the government.
If a claimant is found to have only exertional impairments, the Commissioner may meet his burden of proving the existence of work in the economy that the claimant can perform by referring to the Medical-Vocational Guidelines. Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992) (citing Rainey v. Bowen, 814 F.2d 1279, 1282 (8th Cir. 1987); Tucker v. Heckler, 776 F.2d 793, 795 (8th Cir. 1985)). "But, if the claimant is also found to have non-exertional impairments that diminish the claimant's capacity to perform the full range of jobs listed in the Guidelines, the Secretary [Commissioner] must solicit testimony from a vocational expert to establish that there are jobs in the national economy that the claimant can perform." Robinson, 956 F.2d at 841. Because the ALJ did solicit testimony from a vocational expert in this case, Sanders' argument that it was error not to do so must fail.
Local Availability of Jobs
Sanders claims that it was error for the ALJ to determine that there existed jobs in significant numbers in the national economy that she was capable of performing without considering factors such as her health, her medical condition, her economic circumstances, her family situation, her lack of training or experience, and the local availability of such jobs. However, the local availability of jobs, the economic circumstances of the claimant and the family situation of the claimant are not factors that the ALJ is required to consider in making that determination. Moreover, the record shows that the vocational expert was instructed to consider Sanders' medical condition and lack of experience or training.
If the claimant proves that she is unable to perform her past relevant work, the burden of proof then shifts to the Commissioner to demonstrate that she retains the physical RFC to perform a significant number of other jobs in the national economy that are consistent with the claimant's impairments and vocational factors such as age, education, and work experience. Frankl, 47 F.3d at 937 (citing Reed v. Sullivan, 988 F.2d 812, 815 (8th Cir. 1993)) (emphasis added). The testimony elicited in the hearing revealed that Sanders was a 45 year-old woman with a high school education. The testimony also revealed her work experience. The ALJ committed no error in this regard.
Reversal or Remand
The scope of a district court's review of the Commissioner's final decision is set forth in 42 U.S.C. § 405(g) which provides, in part, that:
[t]he court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing.42 U.S.C. § 405(g). The Eighth Circuit Court of Appeals has stated that:
[w]here the total record is overwhelmingly in support of a finding of disability and the claimant has demonstrated his disability by medical evidence on the record as a whole, we find no need to remand.Gavin, 811 F.2d at 1201-02. See also Beeler v. Brown, 833 F.2d 124, 127 (8th Cir. 1987) (although there was no shift in the burden to the Secretary, reversal of denial of benefits was proper where "the total record overwhelmingly supports a finding of disability."); Stephens v. Secretary of Health, Educ., Welfare, 603 F.2d 36, 42 (8th Cir. 1979) (reversal of denial of benefits is justified where no substantial evidence exists to support a finding that the claimant is not disabled). "Pain is recognized as disabling only when it is not remediable and precludes a claimant from engaging in any form of substantial gainful activity." Cruse, 867 F.2d at 1186.
In the present case, the court concludes that the medical records as a whole support Sanders' subjective complaints of disabling pain. There were no medical records cited by the ALJ indicating that Sanders' subjective complaints of pain were overstated or not sincere. Moreover, it has already been noted by the court that the ALJ's discounting the opinion of Sanders' treating physician is not supported by substantial evidence.
Accordingly, the court finds that the record overwhelmingly supports a finding of disability based on Sanders' subjective complaints of severe disabling pain. Because a remand for "further hearings would merely delay receipt of benefits, an order granting benefits is appropriate." Parsons v. Heckler, 739 F.2d 1334, 1341 (8th Cir. 1984).
Attorney Fees Costs
In her complaint Sanders asks that the Court enter an award of costs, attorney fees and expenses pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. This section provides, in relevant part,
[u]nless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys . . . to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action.28 U.S.C. § 2412(b).
However, this section also provides that:
[a] party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized statement from any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The party shall also allege that the position of the United States was not substantially justified. Whether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought.28 U.S.C. § 2412 (d)(1)(B). Thus, the court will rule upon this matter when the application and necessary accompanying statements are submitted.
Upon the foregoing,
IT IS RECOMMENDED that unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, the decision of the Commissioner be reversed with instructions to the Commissioner to pay benefits to the plaintiff.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P . 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).