Opinion
No. 3:02cv319/MCR.
September 7, 2004
ORDER
This action is before the Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) of the Social Security Act ("the Act") for review of a final determination of the Commissioner of Social Security ("the Commissioner") denying Claimant's applications for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") benefits under Titles II and XVI of the Act.
As explained below, the Commissioner's decision denying benefits is reversed and this case is remanded for further proceedings consistent with this Order.
A. PROCEDURAL HISTORY
Claimant's instant applications for SSI and DIB, which allege disability since October 31, 1999, were denied both initially and on reconsideration. Claimant petitioned for a hearing before an administrative law judge ("ALJ"), who held a hearing on April 10, 2001. By decision dated July 25, 2001, the ALJ found that Claimant was not disabled. Claimant's request for review by the Appeals Council was denied, thus making the decision of the ALJ the final decision of the Commissioner. This action followed.
B. FINDINGS OF THE ALJ
As set forth in the "Findings" section of his opinion the ALJ determined that "the medical evidence establishes hypertension . . ., obesity, back pain and `depression' associated with back pain which limits the claimant to a `light' exceptional capacity. . . ." (R. 23). The ALJ further determined that Claimant's impairments, when considered singly or in combination, did not meet or equal the criteria of any listed impairment and that her allegations of limitations and restrictions were not fully credible. (Id.). Because the ALJ concluded that Claimant retained the residual functional mental and physical capacity to return to her past relevant work as a housekeeper or similar custodial work, he found that she had not been disabled at any time through the date of the decision and therefore was not entitled to SSI or DIB.
See 20 C.F.R. § 404, Subpart P, Appendix I.
C. ISSUE PRESENTED
Claimant argues that the ALJ erred in: (1) discounting the opinion of her treating psychologist; (2) rejecting her subjective testimony; and (3) assessing her residual functional capacity ("RFC"). The Commissioner responds that her decision finding Claimant not disabled is supported by substantial evidence, accords with applicable legal standards, and should be affirmed.
The issue thus presented is whether the ALJ's decision that Claimant, in light of her age, education, work experience, and RFC, is not disabled is supported by substantial evidence in the record and based on the proper application of legal principles.
D. STANDARD OF REVIEW
Title 42 U.S.C. § 405(g) sets forth the standard of review for this Court. The Commissioner's decision must be affirmed if it is supported by substantial evidence and the correct legal standards have been applied. Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). Findings of fact by the Commissioner which are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g). Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). "Substantial evidence" has been defined to mean "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citation omitted) (per curiam). It is more than a scintilla, but less than a preponderance. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted). The court may not reweigh the evidence or substitute its judgment for that of the Commissioner. Wolfe v. Chater, 86 F.3d 1072, 1076 (11th Cir. 1996). It must determine only if substantial evidence supports the findings of the Commissioner.See Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987) (per curiam). Even if substantial evidence exists which is contrary to the Commissioner's findings, where there is substantially supportive evidence of the Commissioner's findings, the court cannot overturn them. Barron v. Sullivan, 924 F.2d 227, 230 (11th Cir. 1991). The reviewing court must affirm the Commissioner's decision if it is supported by substantial evidence, "even if the proof preponderates against it." Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). Unlike the deferential review accorded to the Commissioner's findings of fact, her conclusions of law are not presumed valid. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (citations omitted). The Commissioner's failure to apply correct legal standards or to provide the reviewing court with an adequate basis for it to determine whether proper legal principles have been observed requires reversal. Id. (citations omitted).
A disability is defined as an "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)(1)(A). The inability to engage in substantial gainful activity, not simply the claimant's impairment, must have lasted or be expected to last for twelve months in order to establish disability. Barnhart v. Walton, 122 S.Ct. 1265 (2002). To qualify as a disability the physical or mental impairment must be so severe that the claimant is not only unable to do her previous work, "but cannot, considering h[er] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . ." 42 U.S.C. § 423(d)(2)(A).
Pursuant to 20 C.F.R. § 404.1520(a)-(f), the Commissioner analyzes a claim in five steps:
1. Is the individual currently engaged in substantial gainful activity?
2. Does the individual have any severe impairment?
3. Does the individual have any severe impairments that meet or equal those listed in Appendix 1 of 20 C.F.R. Part 404?
4. Does the individual have any impairments which prevent past relevant work?
5. Do the individual's impairments prevent any other work?
A finding of disability or no disability at any step renders further evaluation unnecessary. The claimant bears the burden of establishing a severe impairment that keeps her from performing her past work. If the claimant establishes that her impairment keeps her from performing her past work, the burden shifts to the Commissioner at step five to show the existence of other jobs in the national economy which, given the claimant's impairments, she can perform. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986); MacGregor v. Bowen, 786 F.2d 1050, 1052 (11th Cir. 1986). If the Commissioner carries this burden, claimant must prove that she cannot perform the work suggested by the Commissioner. Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987). It is within the district court's discretion to affirm, modify, or reverse a Commissioner's final decision with or without remand. 42 U.S.C. § 405(g); Myers v. Sullivan, 916 F.2d 659, 676 (11th Cir. 1990).
E. SUMMARY OF CLAIMANT'S MEDICAL RECORDS
As outlined by the ALJ in his decision, the medical records regarding Claimant's physical condition primarily reflect diagnoses of hypertension and lower back strain with radiculopathy and obesity; a 1999 radiograph and 2000 MRI of the spine revealed no significant abnormalities. (See R. 282-83, 295, 297-98, 300, 301, 307, 323, 325, 353). In April 2000 Richard W. Lucey, M.D., reported that a physical examination was largely unremarkable, other than some mild valgus deformities, mild crepitus, and mild hypertrophic changes in the knees. (R. 222-24). In addition, Dr. Lucey noted that the range of motion of the thoracolumbar spine was mildly decreased. Claimant's medical records also reflect that she was diagnosed with depression by several practitioners and received medication for this condition beginning in 1999. (See R. 235-36, 270-71, 287, 349, 354, 364). In June 2000, psychologist Storne L. Shively, Ph.D., opined that Claimant suffered from a mild depression which should not prevent her from working. (R. 281). In September 2000, however, Dr. Shively completed a Supplemental Questionnaire as to Mental Residual Functional Capacity which indicated that Claimant was not able to perform her past relevant work or any other work. (R. 59, 264-66).
Dr. Shively stated that Claimant had "significant concentration, [attention], and memory problems related to her depression [and] panic [disorder] [with] agoraphobia." More specifically, Dr. Shively found that Claimant suffered "slight" restrictions with respect to maintaining social functioning and "mild" problems in responding appropriately to co-workers. She had "moderate" restrictions in activities of daily living, responding appropriately to supervision, and performing repetitive tasks. Claimant experienced "moderate to marked" restrictions in the ability to understand, remember, and carry out instructions; to respond appropriately to customary work pressures; and to perform simple tasks. On a "frequent" basis Claimant suffered deficiencies of concentration, persistence, or pace resulting in the failure to complete tasks in a timely manner, and on a "repeated" basis she experienced episodes of deterioration or decompensation.
F. DISCUSSION
As noted above, in the "Findings" section of his opinion the ALJ stated that the medical evidence established that Claimant suffered from hypertension, obesity, back pain, and "`depression' associated with back pain which limits the claimant to a `light' exceptional capacity. . . ." (R. 23). In the "Evaluation of the Evidence and Rationale" section of his decision, however, the ALJ did not identify any severe impairments. Nevertheless, the ALJ did outline the records which discussed Claimant's obesity, back condition, hypertension, and mental status before concluding that Claimant had a "severe" impairment because she was limited to the performance of light work. (R. 20).
Claimant reads the ALJ's decision as containing an "implicit" finding at Step Two of the sequential analysis that she suffered from a "severe" mental impairment. (Doc. 17, 17 and 23). In response, the Commissioner argues vigorously — and at length — that contrary to Claimant's position the ALJ in fact did not find that Claimant suffered from a "severe" mental impairment; rather, according to the Commissioner, the ALJ made no findings "consistent with a determination that Plaintiff had a `severe' mental impairment." (Doc. 18, 5-7).
In order to conduct a meaningful review of Claimant's case this Court must be able to ascertain which of Claimant's impairments the ALJ considered to be severe at Step Two of the sequential analysis. See Haines v. Apfel, 986 F.Supp. 1212, 1214 (S.D. Iowa 1997) (concluding that remand of case was necessary in part due to ALJ's finding that the medical evidence established the presence of severe impairments but his failure to list which impairments were severe); Dale v. Apfel, 45 F.Supp.2d 674, 680 (E.D.Mo. 1999) (noting that it was "incumbent upon the ALJ to identify the impairment or impairments believed to be severe to enable the Court to determine the presence of substantial evidence vel non as to whether such impairment(s) are disabling."). In the instant case, the Court cannot determine with adequate certainty whether the ALJ intended to include Claimant's depression as a severe impairment. Indeed, any firm conclusion as to whether the interpretation advanced by Claimant regarding the ALJ's Step Two finding is correct or whether that advanced by the Commissioner is correct — or whether some other interpretation is correct — would be speculative. Accordingly, the Court shall remand this case to the Commissioner for clarification and further proceedings. On remand the ALJ should make a specific, clearly articulated finding at Step Two as to which of Claimant's impairments he has determined are "severe," such that a reviewing court will be able to conduct a meaningful review of his decision regarding this step of the sequential analysis as well as any remaining steps which are addressed.
The regulations define a "severe impairment" as one which "significantly limits your physical or mental ability to do basic work activities. . . ." 20 C.F.R. §§ 404.1520(c), 416.920(c).
Moreover, while it might have been helpful in evaluating which impairments the ALJ found severe and which he did not, the ALJ did not specifically list which, if any, of Claimant's alleged impairments he may have considered to be nonsevere.
In fact, the Court is inclined to read the opinion somewhat differently than does either Claimant or the Commissioner — that the ALJ meant to find explicitly that Claimant's depression was "severe" but failed to do so as a result of unclear drafting. This view is based on the Court's observation that on Page 5 of his decision the ALL found that Claimant suffered from a severe impairment in light of her limitation to light work and that on Page 8, Paragraph 3, he relates this limitation to the impairments of hypertension, obesity, back pain, and depression associated with back pain. The Court further observes that such a finding would be supported by substantial evidence, as Step Two of the sequential analysis may do no more than screen out de minimis claims. Stratton v. Bowen, 827 F.2d 1447, 1453 (11th Cir. 1987). The evidence of record in this case (see, e.g., R. 235-36, 264-66, 270-71, 287, 349, 354, 364), does not suggest to the Court that Claimant's depression is so "trivial" that it may be rejected at this threshold level of inquiry. McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986).
As is true in many Social Security cases, the ALJ's Step Two determination in this matter potentially has broad implications. If, having concluded that Claimant suffers from "severe" depression, the ALJ proceeds to Step Four he must explain why this impairment (as well as any other severe impairment) — which by definition "significantly limits" Claimant's ability to do basic work activities — does not prevent her from performing her past relevant work. Moreover, the ALJ discussed an alternative holding, i.e., that even if at Step Four it was determined that Claimant could not return to her past relevant work, a determination at Step Five could be made that other work existed which Claimant could perform. But the ALJ posed no hypothetical questions to the vocational expert, much less one that included all of Claimant's severe nonexertional impairments, including her obesity, hypertension, or back pain.See Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002) (citing Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999). At Step Five, the ALJ must be asked to consider all of a claimant's severe impairments in order for his testimony to constitute substantial evidence in support of the Commissioner's decision. See Pendley v. Heckler, 767 F.2d 1561 (11th Cir. 1985).
Accordingly, it is ORDERED:
1. The decision of the Commissioner of Social Security denying disability benefits is REVERSED pursuant to sentence four of 42 U.S.C. § 405(g).
2. This case is REMANDED to the Commissioner of Social Security for further proceedings consistent with this Order.
3. Judgment shall be entered accordingly.
DONE AND ORDERED.