Opinion
Civil Action No. SA-04-CA-1195 RF (NN).
December 8, 2005.
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
I. Introduction
Plaintiff Maria Schwennesen seeks review and reversal of the administrative denial of her application for Disability Insurance Benefits ("DIB") by the Administrative Law Judge ("ALJ") on July 30, 2004. Plaintiff contends that ALJ Bernard McKay's conclusion that plaintiff retained the residual functional capacity ("RFC") to perform certain of her past work is not supported by the substantial evidence of the record. For this reason, plaintiff requests that the court reverse, remand and order the entry of a finding of disability, or, in the alternative, remand the case for proper development.
Docket Entries 1, 11, 13. See also Administrative Transcript ("Transcript"), at 10-18.
After considering plaintiff's brief in support of her complaint, defendant's brief in support of the Commissioner's decision, plaintiff's reply brief, the transcript of the Social Security Administration (hereinafter "SSA") proceedings, the pleadings on file, the applicable case authority and relevant statutory and regulatory provisions, and the entire record in this matter, it is my recommendation that plaintiff's request for relief be GRANTED and this action REMANDED for further proceedings consistent with this Memorandum and Recommendation.
Docket Entry 11.
Docket Entry 12.
Docket Entry 13.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
II. Jurisdiction
The court has jurisdiction under 42 U.S.C. § 405(g).
III. Administrative Proceedings
According to the record in this case, plaintiff fully exhausted her administrative remedies prior to filing this action in federal court. Plaintiff filed an application for DIB on August 2, 2002, alleging a disability beginning November 9, 2001. The SSA denied plaintiff's application both initially, on November 25, 2002, and on reconsideration, March 7, 2003.
Transcript, at 13, 43-45.
Transcript, at 21-26.
Transcript, at 28-31.
On March 24, 2003, plaintiff requested a hearing before an ALJ. The hearing was held on March 29, 2004. Plaintiff was represented by counsel at the hearing. Plaintiff's attorney was able to examine and question plaintiff and the vocational expert, Bill Brown, during the hearing.
Transcript, at 32.
Transcript, at 233-274.
At the administrative hearing, plaintiff testified that she suffered several on-the-job back injuries from 1993 to 2001. Plaintiff told the ALJ that she last injured her back in November 2001 while she was picking up toys and cleaning tables as part of her job at a child care center on a military base. Although plaintiff tried to return to work in a light duty position after her last injury in November 2001, plaintiff's employer allegedly refused to find plaintiff light duty work. Thereafter, plaintiff retired in lieu of looking for work elsewhere. Plaintiff explained that she did not look for other work because work on the base provided the best rate of pay. Plaintiff also testified that she had past work experience as a recreation aide, as a clerk or cashier in a child care center, and as a receptionist.
Transcript, at 239-244.
Transcript, at 244.
Transcript, at 245.
Transcript, at 246.
Transcript, at 258-259.
Transcript, at 247.
Transcript, at 255, 275-276.
Transcript, at 255.
When asked about her daily and routine activities, plaintiff stated that she often read, watched television, went to the grocery store, washed the dishes, cooked, did laundry and some dusting. Plaintiff testified that her housework was limited to activities she could perform without bending. Plaintiff told the ALJ that she had problems washing her feet and shaving her legs.
Transcript, at 248-250.
Transcript, at 249.
Transcript, at 250.
Plaintiff testified that she had pain in her back and hip. She further stated that she suffered from sciatica and bursitis. Plaintiff estimated that she could stand for fifteen minutes before needing to rest and could sit for ten minutes before becoming stiff. She also told ALJ McKay that her doctor restricted her to walking only around the block.
Transcript, at 251.
Transcript, at 251.
Transcript, at 252.
Transcript, at 252.
The ALJ also heard testimony from vocational expert Bill Brown at the hearing. VE Brown classified plaintiff's past work as a recreational aide as light, unskilled, her work as a program assistant, otherwise known as a child day care worker, as medium, semiskilled and her work as a cashier as sedentary, semiskilled.
Transcript, at 264-275.
Transcript, at 266-268.
The vocational expert opined that plaintiff could perform work as a "companion domestic services," teacher's aide II, computer aide, and classroom monitor based on the hypothetical proffered by the ALJ. Mr. Brown cautioned, however, that if plaintiff had a decreased level of exertional abilities, she would be unable to perform the aforementioned jobs. He stated that plaintiff might still be able to perform her past work as a cashier.
Transcript, at 269-272.
Transcript, at 271-272.
Id.
On July 30, 2004, the ALJ issued his decision in which he concluded that plaintiff was not under a "disability," as defined by the Social Security Act ("the Act"), at any time through the date of the decision. Specifically, ALJ McKay found that plaintiff retained the RFC to perform her past work in the child development field as a companion and as a teacher's aide.
Transcript, at 10-18.
After receiving the ALJ's unfavorable decision dated July 30, 2004, plaintiff requested review of the hearing and decision on September 27, 2004. On October 22, 2004, the Appeals Council concluded that there was no basis upon which it could grant plaintiff's request for review, thereby denying plaintiff's request. Plaintiff commenced the instant action in this court on December 29, 2004.
Transcript, at 9.
Transcript, at 5-7.
Docket Entry 1.
IV. Issue Presented
Whether the ALJ's decision is supported by substantial evidence and comports with relevant legal standards?V. Analysis
A. Standard of ReviewIn reviewing the Commissioner's decision denying disability insurance benefits, I am limited to a determination of whether substantial evidence supports the decision and whether the Commissioner applied the proper legal standards in evaluating the evidence. "Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Substantial evidence "must do more than create a suspicion of the existence of the fact to be established, but `no substantial evidence' will be found only where there is a `conspicuous absence of credible choices' or `no contrary medical evidence.'"
Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); 42 U.S.C. §§ 405(g), 1383(c)(3) (2002).
Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).
Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988) (quoting Hames, 707 F.2d at 164).
If the Commissioner's findings are supported by substantial evidence, then they are conclusive and must be affirmed. In my review of the Commissioner's findings, I must carefully examine the entire record, but refrain from re-weighing the evidence or substituting my judgment for that of the Commissioner. Conflicts in the evidence and credibility assessments are for the Commissioner and not for the courts to resolve. Four elements of proof are weighed by the courts in determining if substantial evidence supports the Commissioner's determination: (1) objective medical facts, (2) diagnoses and opinions of treating and examining physicians, (3) the claimant's subjective evidence of pain and disability, and (4) the claimant's age, education and work experience.
Martinez, 64 F.3d at 173.
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Villa, 895 F.2d at 1021 ("The court is not to reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner.").
Martinez, 64 F.3d at 174.
Id.
1. Entitlement to Benefits
Every individual who is insured for disability insurance benefits, has not reached retirement age, has filed an application for benefits, and is under a disability is entitled to receive disability insurance benefits. The term "disabled" or "disability" means 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 twelve months." A claimant shall be determined to be disabled only if his physical or mental impairment or impairments are so severe that he is unable to not only do his previous work, but cannot, considering his age, education, and work experience, participate in any other kind of substantial gainful work which exists in significant numbers in the national economy, regardless of whether such work exists in the area in which he lives, whether a specific job vacancy exists, or whether he would be hired if he applied for work.
Id. § 1382c(a)(3)(A).
Id. § 1382c(a)(3)(B).
2. Evaluation Process and Burden of Proof
Regulations set forth by the Commissioner prescribe that disability claims are to be evaluated according to a five-step process. A finding that a claimant is disabled or not disabled at any point in the process is conclusive and terminates the Commissioner's analysis.
20 C.F.R. §§ 404.1520 and 416.920 (2002).
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The first step involves determining whether the claimant is currently engaged in substantial gainful activity. If so, the claimant will be found not disabled regardless of his medical condition or his age, education, or work experience. The second step involves determining whether the claimant's impairment is severe. If it is not severe, the claimant is deemed not disabled. In the third step, the Commissioner compares the severe impairment with those on a list of specific impairments. If it meets or equals a listed impairment, the claimant is deemed disabled without considering his age, education, or work experience. If the impairment is not on the list, the Commissioner, in the fourth step, reviews the claimant's RFC and the demands of his past work. If he is still able to do his past work, he is not disabled. If he cannot perform his past work, the Commissioner moves to the fifth and final step of evaluating the claimant's ability, given his residual capacities, age, education, and work experience, to do other work. If he cannot do other work, he will be found disabled. The claimant bears the burden of proof at the first four steps of the sequential analysis. Once he has shown that he is unable to perform his previous work, the burden shifts to the Commissioner to show that there is other substantial gainful employment available that the claimant is not only physically able to perform, but also, taking into account his exertional and non-exertional limitations, able to maintain for a significant period of time. If the Commissioner adequately points to potential alternative employment, the burden shifts back to the claimant to prove that he is unable to perform the alternative work.
20 C.F.R. §§ 404.1520 and 416.920.
Id.
Id.
Id.
20 C.F.R. §§ 404.1520 and 416.920.
Id.
Id.
Id.
Id.
Leggett, 67 F.3d at 564.
Watson v. Barnhart, 288 F.3d 212, 217 (5th Cir. 2002).
Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989).
In the instant case, the ALJ reached his decision at step four of the evaluation process. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful employment since his alleged onset date of disability. ALJ McKay then concluded at steps two and three that plaintiff had an impairment (severe degenerative joint disease of the lumbar spine) which was severe, but did not meet or medically equal a listed impairment as of the date the plaintiff was last insured. At step four, the ALJ found that plaintiff retained the residual functional capacity to perform work at the light exertional level. The ALJ further concluded that plaintiff was able to perform her past work in the child development field as a companion and as a teacher's aide. Based on the foregoing, ALJ McKay concluded that plaintiff was not under a disability. B. Is the ALJ's July 30, 2004 Decision Supported by Substantial Evidence?
Transcript, at 10-18.
Transcript, at 14; ¶ 2, at 17.
Transcript, at 16; ¶ 4, at 17.
Transcript, at 17; ¶ 7, at 18.
Transcript, at 13, 17; ¶ 9, at 18.
Plaintiff challenges the ALJ's decision, asserting that the ALJ: (1) erroneously concluded that plaintiff was capable of performing a full range of light work; and (2) improperly neglected to provide specific reasons for his rejection of plaintiff's testimony. Plaintiff argues that these mistakes constitute reversible error and that substantial evidence does not support the ALJ's decision. In my opinion, certain of plaintiff's grounds for reversal are meritorious. For that reason, I recommend that plaintiff's request for relief be GRANTED and this action REMANDED for further proceedings consistent with this Memorandum and Recommendation.
1. Did the ALJ erroneously conclude that plaintiff was capable of performing a full range of light work ?
In her first point of error, plaintiff asserts that ALJ McKay erroneously held that plaintiff was capable of performing a full range of light work. Specifically, plaintiff contends that the ALJ failed to accept or reject explicitly the myriad medical reports in the record which established that plaintiff has strict limitations on bending and stooping. Because plaintiff is unable to bend or stoop and has lifting limitations, she urges that it was error for the ALJ to conclude that she was capable of performing a full range of light work.
Docket Entries 11, 13.
Plaintiff contends that her exertional limitations are fully supported by the substantial medical evidence of the record, including reports by treating and examining medical professionals. While he is the sole arbiter of the credibility of the evidence before him, "the ALJ must consider all the record evidence and cannot "pick and choose" only the evidence that supports his position." Similarly, the ALJ is free to reject the opinion of a treating physician but only after he has clearly articulated the reasons for so doing. Finally, the ALJ must evaluate every medical opinion received.
Loza v. Apfel, 219 F.3d 378, 393-394 (5th Cir. 2000) (internal citations omitted).
See Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994). See also Policy Interpretation Ruling Titles II and XVI: Giving Controlling Weight to Treating Source Medical Opinions, SSR 96-2p (July 2, 1996); Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987), citing Oldham v. Schweiker, 660 F.2d 1078, 1084 (Former 5th Cir. Unit B 1981).
In the instant case, there are many medical reports in the record which establish that plaintiff was limited in her ability to lift, bend and stoop. These reports are: the report authored by examining physician Frank Kuwamura on November 21, 2001; the report by orthopedist Dr. Roger Lunke dated July 1, 2002, who concluded that plaintiff was "permanently and totally disabled from performing any type of work requiring bending, stooping or squatting" and that it would be impossible for plaintiff to return to her past work; a handwritten note by Dr. Pedroza opining that plaintiff was permanently and totally disabled; a report by Dr. Pedro Fornos dated October 22, 2002, stating that plaintiff had the ability to perform some work activities, such as sitting, standing, handling objects, hearing and speaking, but was limited in her ability to move about or carry and lift heavy objects; and a report authored by Dr. Soper, the physician who performed a spinoscope on plaintiff, which stated that plaintiff had a problem with left lateral bending.
Transcript, at 201-202. Notably, Dr. Kuwamura concluded that plaintiff was permanently restricted to no repetitive bending or stooping and no lifting greater than ten (10) pounds. Transcript, at 202.
Transcript, at 208.
Transcript, at 209.
Transcript, at 175.
Transcript, at 190.
Although the ALJ acknowledges most of these reports and their findings in his decision, he ultimately concluded that plaintiff was capable of performing light work in general and, specifically, her past work in the child development field as a companion and as a teacher's aide. The ALJ failed to articulate his findings as to whether plaintiff was limited in her ability to bend or stoop, indicating that he rejected the limitations set forth in the numerous medical reports. However, he failed to articulate reasons for the rejection. Similarly, although he acknowledged the medical report which opined that plaintiff could not return to her past work, he failed to specify the reasons for rejecting that conclusion.
Transcript, at 14-16.
Transcript, at 16-17.
See Transcript, at 15.
At the administrative hearing, the ALJ posed two hypotheticals to the vocational expert. In the first hypothetical, the ALJ essentially asked the VE if an individual capable of performing work at only the light exertional level would be capable of performing work in the recreational aid or childcare occupational fields. The VE testified that there were a number of positions available for such an individual with a "full range of light capability," including work as a domestic serviceperson, a daycare worker, a childcare worker or a teacher's aid II.
Transcript, at 268.
Transcript, at 268-271.
In the second hypothetical, the ALJ imposed the following limitations:
lifting no more than ten pounds frequently and no more than 20 pounds occasionally. Also requiring an option to sit or stand in the performance of the work activities, and also being limited to work occupations that do not involve frequent bending, stooping, kneeling, crouching, crawling.
Transcript, at 271-272.
The vocational expert testified that the aforementioned restrictions "would eliminate all the light jobs and everything that I've said about a light job . . ." He further explained that such an individual might be capable of performing a cashier job but that he "didn't have enough data."
Transcript, at 272.
Transcript, at 272.
Although the ALJ failed to accept or reject explicitly the bending, stooping, kneeling, crouching and crawling limitations proffered in the second hypothetical (despite acknowledging the medical reports asserting the same), he did incorporate the lifting limitations in his assessment of plaintiff's RFC. At the same time, in direct contradiction to the testimony of the VE and without explanation, the ALJ also held that plaintiff was capable of performing her past work in the child development field as a companion and as a teacher's aide. These inconsistent findings render the decision unsupported by substantial evidence and constitute reversible error.
Transcript, ¶ 7, at 18.
Notably, plaintiff has also argued that the ALJ committed reversible error in failing to acknowledge her urinary frequency issues. There are only a few medical reports in the record that discuss possible urinary incontinence. One record states that plaintiff reported leaking of urine but also concluded that plaintiff did not suffer from incontinence and another indicates that plaintiff had no problems with urinary frequency or urgency. A third report is impossible to decipher as to its conclusions regarding plaintiff's incontinence. At the hearing, plaintiff neglected to mention the urinary issues at all. In sum, plaintiff has failed to prove any actual limitations imposed on her ability to perform daily or work activities as a result of the alleged incontinence. Consequently, she has failed to establish that the ALJ's failure to discuss her urinary incontinence constituted prejudicial, i.e. reversible, error.
Docket Entry 11, at 10.
Transcript, at 174.
Transcript, at 219.
Transcript, at 112.
See Hames v. Heckler, 707 F.2d 162, 165 (5th Cir. 1983):
The mere presence of some impairment is not disabling per se. Plaintiff must show that she was so functionally impaired by her back trouble that she was precluded from engaging in any substantial gainful activity. Demandre v. Califano, 591 F.2d 1088 (5th Cir. 1979); Russell v. Secretary of Health, Education and Welfare, 402 F.Supp. 613 (E.D.Mo. 1975), aff'd 540 F.2d 353 (8th Cir. 1976); Manzanares v. Secretary of Health, Education and Welfare, [Jan. 1976 — Jan. 1977 Transfer Binder] Unempl.Ins.Rep. (CCH) ¶ 14,975 (D.N.M. 1976).
See Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000), "This Court will not reverse the decision of an ALJ for failure to fully and fairly develop the record unless the claimant shows that he or she was prejudiced by the ALJ's failure . . . To establish prejudice, a claimant must demonstrate that he or she `could and would have adduced evidence that might have altered the result (internal citations omitted).'"
For all the foregoing reasons, it is my finding that the ALJ committed reversible error with respect to his conclusions both as to plaintiff's RFC and plaintiff's ability to perform her past relevant work. There is not sufficient evidence, however, to justify directing an award of benefits as there may very well be work available in the local and national economies — either at a limited light or sedentary exertional level — that plaintiff retains the RFC to perform. Thus, it is my recommendation that this action be REMANDED with instructions that the ALJ revisit his assessment of plaintiff's RFC and ability to perform her past relevant work on remand. Should the ALJ conclude that plaintiff is, in fact, incapable of performing her past relevant work, he should obtain additional testimony from a vocational expert as to which, if any, jobs available in the local and national economies plaintiff retains the RFC to perform.
2. Did the ALJ inappropriately neglect to provide specific reasons for his rejection of plaintiff's testimony ?
In her second, and final, point of error, plaintiff avers that the ALJ improperly failed to articulate the precise reasons for his finding that plaintiff's allegations of pain were not consistent with the substantial evidence of the record. Plaintiff urges that the ALJ's failure to articulate the reasons for his rejection of plaintiff's subjective allegations and to support those reasons with references to record evidence constitutes reversible error.
Docket Entry 11, at 11-14. See also Docket Entry 13.
The case law is clear that it is the province of the ALJ to make credibility determinations and to resolve any conflicts in the evidence. As long as the decision is supported by substantial evidence, it must be affirmed.
Martinez, 64 F.3d at 174.
In evaluating the evidence, `[t]he Court may not substitute its own judgment for that of the Secretary, even if it might justifiably have reached a different result upon a de novo review.'
Koffsky v. Apfel, 26 F.Supp.2d 475, 478 (E.D. NY 1998), quoting Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991).
When an ALJ assesses the plaintiff's credibility, however, the regulations mandate:
The finding on the credibility of the individual's statements cannot be based on an intangible or intuitive notion about an individual's credibility. The reasons for the credibility finding must be grounded in the evidence and articulated in the determination or decision.
Social Security Ruling: Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements, SSR 96-7p, at *4. The ruling further states:
The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight. This documentation is necessary in order to give the individual a full and fair review of his or her claim, and in order to ensure a well-reasoned determination or decision.
To assist the factfinder, Social Security Ruling 96-7p was written to clarify the procedure to be used in assessing the credibility of a Social Security claimant's statements about symptoms and pain. The Ruling requires the ALJ to engage in a two-step process. In the first step,
Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims — Assessing the Credibility of an Individual's Statements, SSR 96-7p, at * 1.
the adjudicator must consider whether there is an underlying medically determinable physical or mental impairment(s) . . . that could reasonably be expected to produce the individual's pain or other symptoms.
Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims — Assessing the Credibility of an Individual's Statements, SSR 96-7p, at * 2.
If an underlying physical or mental impairment that could reasonably be expected to produce the individual's pain has been established, the adjudicator
must evaluate the intensity, persistence, and limiting effects of the individual's symptoms to determine the extent to which the symptoms limit the individual's ability to do basic work activities.
Id.
In the instant case, the ALJ reviewed the medical evidence of record, as well as plaintiff's account of her routine activities. He then held:
Transcript, at 16-17.
The claimant's statements concerning her impairments and their impact on her ability to work are not supported in light of the claimant's own description of his ( sic) activities and life style, and the extent of the medical treatment required.
Transcript, at 17.
Taken alone, the ALJ's assessment of plaintiff's credibility is adequate and complies with the applicable legal standards. In the context of the decision as a whole, however, it would be prudent for the ALJ to re-visit his findings as to plaintiff's credibility, in compliance with the applicable legal standards, upon remand. The ALJ's decision in its entirety contains inconsistent findings and, as such, the ALJ should be directed to reassess his conclusions about plaintiff's credibility as they may be impacted by his revised conclusions regarding plaintiff's exertional abilities.
VI. Recommendation
Based on the foregoing, I recommend that plaintiff's request for relief (docket entry 1) be GRANTED, the decision of the Commissioner REVERSED and this action REMANDED for further proceedings consistent with this Memorandum and Recommendation.
VII. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn, 474 U.S. 140, 149-152 (1985).
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).