Opinion
No. 99-0248-P-L.
FILED July 17, 2000.
REPORT AND RECOMMENDATION
The Plaintiff brings this action under 42 U.S.C. § 405(g) and § 1383(c)(3) seeking judicial review of a final decision of the Commissioner of Social Security denying his claim for Supplemental Security Income benefits.
This action was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Oral argument was heard on July 12, 2000. Upon consideration of the administrative record, oral argument and the memoranda of the parties, it is recommended that the decision of the Commissioner be affirmed.
I. Issues on Appeal.
Plaintiff presents the following issue on appeal:
1. The case should be remanded for further administrative proceedings based on new and material evidence consisting of an affidavit from a vocational expert which rebuts the testimony of the vocational expert at the administrative hearing.
II. Procedural History
Plaintiff was born on August 11, 1970 (Tr. 49, 57) and he was twenty-six years old at the time of the administrative hearing (Tr. 34). Plaintiff testified that he completed the tenth grade and worked as a dishwasher (Tr. 35, 86). Plaintiff is blind in his right eye due to an undetermined accident in infancy or childhood (Tr. 107, 117, 200, 203) and has a below-the-knee amputation resulting from a gunshot wound to the left leg (Tr. 169-197). He applied for Title XVI Supplemental Security Income on December 15, 1994 (Tr. 142-144), alleging an inability to work commencing March 1, 1991, because of the disabling conditions of blindness in one eye and a below the knee amputation of his left leg (Tr. 159). The application was denied initially on March 1, 1995 (Tr. 145), and an application for reconsideration was not filed. Therefore, the initial denial is binding. See 20 C.F.R. § 416.1405.
Plaintiff filed another application for Supplemental Security Income on November 22, 1996, alleging inability to work as of March 9, 1991, due to blindness in one eye, below-the-knee amputation of the left leg (Tr. 78-80), knee pain (Tr. 103-104), bad nerves, and bad back (Tr. 82-95). His application was denied initially (Tr. 61-66), and upon reconsideration (Tr. 68-69). Plaintiff requested a hearing before an administrative law judge (ALJ) (Tr. 70) and the hearing was held on August 5, 1997, in Evergreen, Alabama (Tr. 31-56). Present were the Plaintiff, his counsel and a vocational expert (VE).
The ALJ rendered a decision denying disability benefits on August 25, 1997 (Tr. 8-20). The ALJ found Plaintiff had "severe" impairments which precluded performance of his past relevant work as a dishwasher (Tr. 19). However, he retained the residual functional capacity to occasionally lift 20 pounds, frequently lift 10 pounds, sit for 6 hours in an 8-hour workday, stand for 2 hours in an 8-hour workday but no more than thirty minutes at one time, occasionally climb stairs and ramps, never climb ropes and ladders, and occasionally stoop, kneel, crouch, and crawl (Tr. 18). The ALJ also found that Plaintiff was moderately restricted in exposure to hazardous machinery and heights and that Plaintiffs depth perception was limited due to right eye blindness (Tr. 19, 50). The VE identified seven jobs Plaintiff could do despite these limitations. However, the ALJ asked the VE to discuss only three. The VE then presented telephone solicitor, surveillance system monitor, and order clerk (Tr. 18, 50-51).
Based on the testimony of the VE, the ALJ determined that a significant numbers of jobs existed in the national economy which Plaintiff could perform (Tr. 19). The Appeals Council (AC) denied Plaintiffs request for review on January 19, 1999 (Tr. 4-5). Therefore, the ALJ's decision became the final agency decision. See 20 C.F.R. § 416.1481.
III. Discussion
A. Standard of Review .
In reviewing claims brought under the Act, this Court's role is a limited one. The Court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986). The Commissioner's findings of fact must be affirmed if they are based upon substantial evidence. Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991), citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is defined as "more than a scintilla but less than a preponderance," and consists of "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 390, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Bloodsworth, 703 F.2d at 1239. The Secretary's decision must be affirmed if it is supported by substantial evidence even when a court finds that the preponderance of the evidence is against the decision of the Secretary. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (1971); Bloodsworth, 703 F.2d at 1239. "In determining whether substantial evidence exists, we must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Further, it has been held that the Commissioner's "failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal." Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991). This Court's review of the Commissioner's application of legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
B. Statement of the Law
An individual who applies for Social Security disability benefits or Supplemental Security Income must prove their disability. See 20 C.F.R. § 404.1512; 20 C.F.R. § 416.912. The Social Security regulations provide a five-step sequential evaluation process for determining if a claimant has proven their disability. See 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. At the first step, the claimant must prove that he or she has not engaged in substantial gainful activity. At the second step, the claimant must prove that he or she has a severe impairment or combination of impairments. If, at the third step, the claimant proves that the impairment or combination of impairments meets or equals a listed impairment, then the claimant is automatically found disabled regardless of age, education, or work experience. If the claimant cannot prevail at the third step, he or she must proceed to the fourth step where the claimant must prove inability to perform their past relevant work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In evaluating whether the claimant has met this burden, the examiner must consider the following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; (4) the claimant's age, education and work history. Id. at 1005. Once a claimant meets this burden, it becomes the Commissioner's burden to prove at the fifth step that the claimant is capable of engaging in another kind of substantial gainful employment which exists in significant numbers in the national economy, given the claimant's residual functional capacity and age, education, and work history. Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985). If the Commissioner can demonstrate that there are such jobs the claimant can perform, the claimant must prove inability to perform those jobs in order to be found disabled. Jones v. Apfel 190 F.3d 1224, 1228 (11th Cir. 1999); Powell o/b/o Powell v. Heckler, 773 F.2d 1572, 1575 (11th Cir. 1985); Ambers v. Heckler, 736 F.2d 1467, 1469 (11th Cir. 1984). See also Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987), citing Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985).
C. Medical Evidence
On March 9, 1991, the Plaintiff was shot at close range in the left posterior leg which resulted in a below-the-knee amputation (Tr. 169-197). His leg "healed well without complication" (Tr. 189). The medical records indicate that the Plaintiff did not obtain a prosthesis, but ambulated well with crutches (Tr. 191). While hospitalized, he was given a physical examination, which revealed no additional problems but for blindness in his right eye (Tr. 169).
On March 9, 1994' (Tr. 198-201), Bruce M. Pava, M.D., consultatively examined the Plaintiff. Dr. Pava noted Plaintiff was "able to ambulate extremely well with the use of crutches," and "nothing is noted on physical examination that would prevent the patient from preforming [sic] light or sedentary type jobs" (Tr. 201). Plaintiff did not allege pain and the record indicates he did not take pain medications (Tr. 200).
On February 10, 1995, Thomas H. Lane, M.D., consultatively examined the Plaintiff (Tr. 202-203). Upon examination, he denied "any chronic pain," admitted to performing "odd jobs," and the doctor noted that Plaintiff took no pain medication. Dr. Lane had no significant findings other than the amputation and the right eye blindness. He opined Plaintiff was "otherwise in excellent health" (Tr. 203).
On January 23, 1997, R. U. Hayes, M.D., consultatively examined the Plaintiff at the outpatient department of D. W. McMillan Memorial Hospital (Tr. 107-108). Plaintiff told Dr. Hayes he could read and write (Tr. 107). The doctor reported that Plaintiff "has no complaints whatsoever other than the blindness of the right eye and amputation of the left leg" (Tr. 107). The record does not reflect any mention of a back problem, pain, or nerves (Tr. 107-108). Dr. Hayes noted his impression that the Plaintiff "can read and write and should be able to do some sedentary type of job." (Tr. 108).
In the March 10, 1997, Reconsideration Disability Report, Plaintiff complained of "some problems dealing with noise," "bad nerves," and that he did not like being around a crowd of people (Tr. 96-101). Thereafter, on April 24, 1997, Robert DeFrancisco, Ph.D., BCFE (Board Certified Forensic Examiner) conducted a comprehensive psychological evaluation (Tr. 117-118). During the evaluation, Plaintiff acknowledged he enjoyed fishing and could drive a car. He denied any alcohol or drug problems. He denied any recent legal problems, and reported he last had a problem in 1980 for possession of an illegal firearm (Tr. 117). Dr. DeFrancisco made no notations in regard to any statements by the Plaintiff about pain or back problems when describing his disabling condition (Tr. 117-118). Dr. DeFrancisco described Plaintiff as cooperative and friendly, displaying normal, rational and sequential thought processes. He found no psychological impairment (Tr. 118).
On June 30, 1997, Gregory K. Parker, M.D., examined Plaintiff at the request of his lawyer (Tr. 137-141). The ALJ noted this was the first time in the record evidence that Plaintiff asserted he had "chronic lower back pain" and "difficulty" bending (Tr. 17, 137). Dr. Parker completed a Physical Capacities Evaluation (Tr. 139) and a Pain Assessment Questionnaire (Tr. 140-14 1). The evaluation indicates Plaintiff could sit for 3 hours at a time, up to 4 hours in an 8-hour workday, but could not stand or walk at all, and could only occasionally lift up to 5 pounds (Tr. 139). Dr. Parker stated that Plaintiffs pain would be "distracting" to the adequate performance of daily activities or work (Tr. 140-14 1). The medical records prior to this visit do not contain a prescription for pain medication, nor complaints of back pain, bending problems, or side effects from medication. Dr. Parker also stated that Plaintiff was moderately restricted in activities involving exposure to dust, fumes, and gases (Tr. 139) though there is no diagnosis in the record or medical signs, symptoms or findings to support this restriction. He found Plaintiff totally restricted from crawling and restricted in his ability to reach, but able to use his hands and arms for pushing and pulling arm controls (Tr. 139).
D. Plaintiff's Argument
The Plaintiff argues that the case should be remanded to the Commissioner of Social Security for consideration of the affidavit of vocational expert Barry Murphy as rebuttal of the testimony by Richard Freeman, the vocational expert who testified at the Plaintiffs administrative hearing.
"Plaintiff moved for a remand of this case pursuant to 42 U.S.C. § 405(g) for the purpose of considering new evidence consisting of a July 26, 1999, affidavit and resume from Mr. Barry Murphy, another VE (Doc. 10; Doc. 11). The Commissioner filed a response objecting to the Plaintiff's Motion for Remand for consideration of this new evidence (Doc. 13). On August 17, 1999, United States Magistrate Judge William H. Steel denied Plaintiff's Motion to Remand (Doc. 10), but indicated the issues presented therein would be considered at the same time the Court addresses Plaintiff's Statement of Issues.
After review of the record and observation of the Plaintiff's testimony at the hearing, Mr. Freeman was asked by the ALJ to assume a hypothetical person of the Plaintiffs age with a tenth grade education, who could lift 20 pounds occasionally and 10 pounds frequently, could stand for 2 hours in an 8-hours day, could sit for 6 hours in an 8-hour day, could occasionally climb stairs or ramps, never climb ladders, ropes, or scaffolds, could occasionally stoop, kneel, crouch, and crawl, and needed to avoid moderate exposure to hazardous machinery and heights, and then to give his opinion in regard to jobs available for this hypothetical person (Tr. 49-5 0).
Mr. Freeman responded that there were seven jobs available but the ALJ limited Mr. Freeman's discussion to three. He then testified such a person could perform jobs such as a telephone solicitor, a surveillance system monitor, and a food and beverage order clerk (Tr. 50-51). He also testified that over 20, 000 such jobs exist in the national economy. Relying on the testimony of the VE, the ALJ found that a significant number of jobs existed in the national economy that Plaintiff could perform, and that he had not been "disabled" at any time from the alleged disability onset date through the date of the ALJ's decision.
Once the Commissioner demonstrated Plaintiff could perform other work, the burden shifted back to Plaintiff to prove he was incapable of performing the jobs found by the Commissioner. See Allen v. Sullivan, 880 F.2d 1200, 1201 (11th Cir. 1989). Plaintiff failed to meet this burden. Plaintiff now seeks to rebut the testimony of Mr. Freeman with the affidavit of Mr. Murphy wherein he sets forth that, as defined in the U.S. Dep't. of Labor, Dictionary of Occupational Titles, (4th ed., revised 1991) (DOT), the three jobs identified are inappropriate for the hypothetical person. He stated that the job descriptions and requirements for obtaining the jobs have substantially changed since their last update in the DOT and that the hypothetical person cannot perform these jobs as they are actually performed in the national economy.
However, the DOT is only one among many sources the ALJ may use. See 20 C.F.R. § 416.966(d). There is no provision of law, nor regulation, which provides that the generalized information set forth in any reference source should outweigh the testimony of a qualified VE, who has an on-going knowledge of, and familiarity with current local vocational practices and conditions. To the contrary, the regulations specify that the testimony of a VE based upon his or her knowledge and special expertise is the best method for resolution of complex issues. See 20 C.F.R. § 4 16.966(e). The Court of Appeals for the Eleventh Circuit held that where VE testimony conflicts with the DOT, the VE testimony "trumps" the DOT. See Jones v. Apfel, 190 F.3d 1224, 1229-1230 (11th Cir. 1999), cert. denied, 120 S.Ct. 1723, 68 U.S.L.W. 3668 (U.S. Apr. 24, 2000) (No. 99-7588).
The DOT states that it "offers a starting place from which to address issues of training and education, career guidance and employment counseling, and job definition and wage restructuring." DOT, Preface p. v (4th ed., revised 1991). In a Special Note, the DOT states, "Occupational information contained in the revised fourth edition DOT reflects jobs as they have been found to occur, but they may not coincide in every respect with the content of jobs as performed in particular establishments or at certain localities. DOT users demanding specific job requirements should supplement this data with local information detailing jobs with their community." Id. at xiii. Finally, the DOT states, "[t]his information is presented in the hope that it will provide the basic "snapshot' of how jobs continue to be performed in the majority of industries across the country." Id. at xvi.
Also, possible discrepancies between the DOT descriptions and the jobs as described by the VE were explored on direct and cross-examination. At the hearing, the ALJ carefully questioned Mr. Freeman in regard to a variety of physical and mental limitations, and their effect on a hypothetical individual's ability to work. Additionally, Plaintiff did not object to the qualifications of Mr. Freeman (Tr. 34). Therefore, upon consideration of the foregoing, the undersigned finds that the ALJ reasonably relied upon the testimony of Mr. Freeman to establish that there is a significant number of jobs that the Plaintiff can perform which exist in the national economy.
Further, the Plaintiff did not submit Mr. Murphy's affidavit to the ALJ or the Appeals Council (AC). It was submitted for the first time on appeal to the U.S. District Court as supporting evidence for Plaintiff's motion to remand on the theory that the affidavit is new and material evidence not available at the time of the prior hearing or AC review. The Court of Appeals for the Eleventh Circuit has set forth a three-part test to determine if remand based on new and material evidence is appropriate. To obtain a remand, the Plaintiff must establish that (1) there is new, non-cumulative evidence; (2) the evidence is "material" because it is relevant and probative and there is a reasonable possibility that it would change the administrative results; and (3) there is good cause for not submitting the evidence at the administrative level. See Cannon v. Bowen, 858 F.2d 1541, 1546 (11th Cir. 1988), citing Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir. 1986).
The affidavit is new because it was not presented to the VE or the AC and arguably non-cumulative because the Plaintiff did not present VE testimony at the hearing. However, the evidence is not "material." Even though the affidavit may be relevant to the time period before the ALJ, it is not probative in that it is unlikely to change the administrative result. Even if Mr. Murphy's affidavit had been presented to the ALJ, the ALJ would not have been controlled by his statement that the DOT definitions are out of date, because the DOT does not control over testimony by a VE. Therefore, it is unlikely that the ALJ's decision would have been different. Also, as previously stated herein, the Plaintiff did not object to the qualification of Mr. Freeman as a VE or to his testifying as an expert at the hearing. Upon consideration of the weight given to the VE's testimony as opposed to the DOT, as discussed in Jones v. Apfel at 1229-1230, and the unchallenged qualification of the VE; the undersigned finds that the affidavit was not material.
Further, the Plaintiff has not offered any argument to establish good cause for failing to present the affidavit of Mr. Murphy to the ALJ or to the AC. While the non-existence of evidence at the time of the ALJ's decision "may" constitute good cause, Cherry v. Heckler, 760 F.2d 1186, 1192 (11th Cir. 1985), the Eleventh Circuit has concluded, "the good cause requirement reflects a congressional determination to prevent the bad faith manipulation of the administrative process." Milano v. Bowen, 809 F.2d 763, 767 (11th Cir. 1987). It was designed to "prevent claimants from attempting to withhold evidence" or encouraging them to "seek after-acquired evidence, and then use such evidence as an unsanctioned 'backdoor' means of appeal." Id., quoting Szubak v. Secretary, 745 F.2d 831, 834 (3d Cir. 1984). The Eleventh Circuit has found good cause not present if the Plaintiff "procrastinated in obtaining copies of evidence readily available." See Caulder, 791 F.2d at 879.
Szubak, on which the Milano Court relied, in turn relied on Brown v. Schweiker, 557 F. Supp. 190 (M.D. Fla. 1983). See Szubak, 745 F.2d at 834. In Brown, the Plaintiff argued that the good cause requirement was met "simply because the eight reports in questions were not made until after the administrative hearing." Brown, 557 F. Supp. at 193. The Brown Court rejected this approach and, expressing the concerns later cited in Szubak and Milano, concluded the mere non-existence of the records did not satisfy the good cause requirement. Id. The Brown Court cited with approval the standard applied in Birchfield v. Harris, 506 F. Supp. 251 (E.D. Tenn. 1980): To satisfy the good cause standard, the plaintiff must "demonstrate some justification for the failure to acquire and present such evidence to the [Commissioner]." Id., at 192.
The Plaintiff has not offered a sufficient reason for his failure to acquire and present Mr. Murphy's materials prior to the ALJ's decision or the Appeals Council decision. Plaintiff has not proceeded pro se, but has been represented by current counsel since April 27, 1997 (Tr. 29-30) which pre-dates the August 5, 1997, hearing, the August 25, 1997 ALJ decision and the January 19, 1999 decision by the Appeals Council. Plaintiff's counsel did not request that the record remain open for submission of evidence to rebut Mr. Freeman's testimony, though it was held open for submission of the Plaintiff's school records which were not provided. Plaintiff could have obtained an affidavit from Mr. Murphy, or from any other fully qualified VE, in time for the ALJ's consideration. Plaintiff did not obtain the affidavit until after receiving an unfavorable decision from the ALJ, and after denial of his request for review by the AC. These facts do not satisfy the good cause standard. In accordance with Congress' intent to discourage claimants from seeking after-acquired evidence as a means of obtaining reversal of an adverse decision, the undersigned finds that the Plaintiff did not establish good cause for failing to present the affidavit prior to the ALJ's decision.
IV. Conclusion
For the reasons set forth, and upon consideration of the administrative record, the hearing decision, memoranda of the parties and oral argument, it is recommended that the decision of the Commissioner denying the Plaintiff's claim for Supplemental Security Income be affirmed.
The attached sheet contains important information regarding objections to this report and recommendation.
DONE this 17th day of July, 2000.