Opinion
CIVIL ACTION No. 02-2188-GTV
May 15, 2003.
MEMORANDUM AND ORDER
Plaintiff Bruce D. Walker, III, brings this action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3) and D. Kan. Rule 83.7, seeking judicial review of the decision of the Commissioner of Social Security ("Commissioner") to deny his applications for disability insurance benefits, supplemental security income benefits, and adult disabled child's insurance benefits under Titles II and XVI of the Social Security Act. Plaintiff claims that he was disabled for a closed period beginning October 30, 1999 and ending June 30, 2001. He alleges disabling impairments of below-the-knee amputation of his right leg, fracture of the right femur, spleenectomy, IV catheter in the right arm, auditory memory loss, stomach pain, headaches, and phantom pain. He has a high school education and his past work experience was as an automobile transporter/porter, a loader for United Parcel Services, and a night stocker in the wholesale club business.
This appeal focuses on the Commissioner's determination that Plaintiff's "non-exertional impairments," or mental impairments, were not disabling in combination with his exertional impairments. Plaintiff contends that the Commissioner (1) improperly used the Medical-Vocational Guidelines to determine whether he had a disability, (2) failed to include Plaintiff's non-exertional impairments in the residual functional capacity assessment, and (3) asked the vocational expert an inadequate hypothetical question. For the reasons set forth below, the court affirms the Commissioner's decision on the first ground and reverses it based on Plaintiff's second and third arguments. The case is remanded for further consideration in accordance with this Memorandum and Order.
I. Procedural Background
In November and December 1999, Plaintiff filed applications for disability insurance benefits and supplemental security income benefits, alleging that he became disabled as the result of a motor vehicle accident on October 30, 1999. The applications were denied both initially and upon reconsideration. At Plaintiff's request, an administrative law judge ("ALJ") held a hearing on August 23, 2001, at which Plaintiff and his counsel were present. At that time, Plaintiff amended his claim to reflect a closed period of disability ending on June 30, 2001 as a result of his medical improvement and return to work. On September 19, 2001, the ALJ rendered a decision in which he determined that Plaintiff was not under a "disability" as defined by the Social Security Act. After the ALJ's unfavorable decision, Plaintiff requested review by the Appeals Council. The Appeals Council denied Plaintiff's request for review on February 27, 2002, rendering the ALJ's decision the final decision of the Commissioner.
II. Standard of Review
The Commissioner's findings are binding on this court if supported by substantial evidence. 42 U.S.C. § 405(g); Dixon v. Heckler, 811 F.2d 506, 508 (10th Cir. 1987). The court's review is limited to determining whether the Commissioner's decision is supported by substantial evidence in the record and whether the Commissioner properly applied relevant legal standards. Marshall v. Chater, 75 F.3d 1421, 1425 (10th Cir. 1996) (citing Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994)). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Castellano, 26 F.3d at 1028 (citations and internal quotation marks omitted). The court may not reweigh the evidence or substitute its judgment for that of the ALJ or the Commissioner. Hamilton v. Sec'y of Health Human Servs., 961 F.2d 1495, 1500 (10th Cir. 1992).
III. The ALJ's Findings
1. Claimant was born on December 15, 1979 and for Social Security purposes, will attain age 22 on December 15, 2001.
2. Claimant is the unmarried son of the deceased wage earner, Bruce D. Walker, who died fully insured on June 3, 1999.
3. Claimant, based on his own Social Security record, met the special earnings requirements of the Act on October 30, 1999, the beginning date of his requested closed period of disability, but continued to meet them only through June 30, 2001.
4. Claimant did not engage in substantial gainful activity during the closed period in question, i.e., from October 30, 1999 to July, not-the-first, 2001. Claimant has worked at a substantial gainful activity since July, not-the-first, 2001.
5. The medical evidence establishes that claimant has the following severe impairments: status post open reduction and internal fixation of the right femur and a below the knee amputation and spleen removal secondary to trauma sustained in a motor vehicle accident; and auditory memory loss and complaints of headaches secondary thereto. Overall, claimant does not have impairments, considered singularly or in combination, which meet or equal any criteria contained in the Listing of Impairments, Appendix 1, Subpart P, 20 C.F.R. Part 404.
6. Claimant's testimony, as well as that of his mother, as to the severity of claimant's overall medical condition since at least July 2000 through the end of the closed period in question, is unsupported by the objective medical evidence.
7. Claimant, from at least July 2000 through the end of the closed period in question, had the residual functional capacity to perform the exertional and non-exertional requirements of light entry level work with the particular restrictions noted to the vocational expert at the hearing.
8. Claimant was unable to perform any of his past relevant work during the closed period in question due to the exertional requirements of those jobs.
9. Claimant has acquired no vocational skills which would transfer to work within his residual functional capacity and restrictions.
10. Claimant is currently 21 years of age, and under the regulations, is classified as a "younger" individual.
11. Claimant has a "high school" education.
12. Based on an exertional capacity for light work, and claimant's age, education and past relevant work experience from at least July 2000 through the end of the closed period in questions, Rule 201.27 of Table No. 1, Appendix 2, Subpart P, 20 C.F.R. Part 404 directs a conclusion of "not disabled" for said period.
13. Although claimant has some non-exertional limitations, using the above-cited rule as a framework for decisionmaking, it is found that there were a significant number of jobs in the local and national economies which claimant could have performed from at least July 2000 through the end of the closed period in question, the identities of which were specifically set forth by the vocational expert at the hearing.
14. Claimant has not been under a "disability," as defined in the Social Security Act, as amended, at any time through the date of this decision.
IV. Discussion A. Use of Medical-Vocational Guidelines
Plaintiff first claims that the ALJ erroneously determined that he was not disabled solely through the use of the Medical-Vocational Guidelines. Plaintiff's position is unfounded. Paragraph 13 of the ALJ's findings specifically indicates that the ALJ used the Medical-Vocational Guidelines as a framework for decision-making, and that the ALJ did consider Plaintiff's non-exertional limitations. Plaintiff relies only on paragraph 12 for his argument, and fails to read paragraph 12 in conjunction with paragraph 13. The court affirms the ALJ's decision on this basis without further discussion.B. Failure to Include Non-exertional Impairments in RFC Findings
Plaintiff next claims that the ALJ failed to include Plaintiff's non-exertional impairments in his residual functional capacity ("RFC") findings. The court is unable to determine whether Plaintiff's argument has merit.
The ALJ determined that Plaintiff had the RFC to perform light work by at least July 2000, when his physical and mental condition had improved. In making this determination, the ALJ noted that Plaintiff had the following exertional and non-exertional restrictions:
Claimant would also have been restricted to only occasional bending and climbing of stairs or ramps. Squatting, kneeling, crawling, and climbing of ladders, ropes and scaffolds would have been contraindicated, and claimant would have been precluded from any repetitive use of foot controls with the right lower extremity, as well as working around hazardous machinery and unprotected heights. He would have been limited to only simple, routine and repetitive job tasks [(due to auditory memory loss)], and giving claimant every benefit of the doubt with respect to his problems with socialization during the requested closed period, he would have required a job involving minimal public contact.
Elsewhere in his written decision, the ALJ found that Plaintiff had the following non-exertional limitations: a mild degree of limitation with respect to activities of daily living, a mild-to-moderate degree of limitation in maintaining social functioning, and a moderate limitation on his ability to maintain concentration, persistence, or pace.
It is unclear whether the ALJ intended that the moderate limitation on Plaintiff's ability to maintain concentration, persistence, or pace be included as a restriction on Plaintiff's RFC. Without knowing exactly what RFC and restrictions the ALJ assigned to Plaintiff, the court cannot review whether the ALJ's decision is supported by substantial evidence. See Baker v. Bowen, 886 F.2d 289, 291 (10th Cir. 1989) ("Where the record . . . is unclear as to whether the ALJ applied the appropriate standard by considering all the evidence before him, the proper remedy is reversal and remand."). The case is reversed and remanded for clarification on this matter.
C. Inadequate Hypothetical
Finally, Plaintiff alleges that the ALJ failed to include all of his impairments in the hypothetical posed to the vocational expert. Again, the court is unable to review Plaintiff's argument.
In crafting a hypothetical question, the ALJ may only rely on those limitations supported by substantial evidence in the record. Patterson v. Apfel, 62 F. Supp.2d 1212, 1218 (D.Kan. 1999) (citing Talley v. Sullivan, 908 F.2d 585, 588 (10th Cir. 1990)). "Without question, the ALJ may restrict the questions to those limitations which he has found to be based upon credible evidence." Gay v. Sullivan, 986 F.2d 1336, 1341 (10th Cir. 1993). However, a hypothetical question must relate with precision all of a claimant's impairments. Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991). If impairments are omitted or misrepresented, testimony elicited as a result of the hypothetical question cannot constitute substantial evidence. Id. (quotation omitted).
In this case, the ALJ found that Plaintiff had a "moderate" limitation on his ability to maintain concentration, persistence, or pace. He did not include this limitation in his hypothetical to the vocational expert. If the concentration/persistence/pace limitation was intended to be regarded as part of Plaintiff's RFC, the ALJ should have relayed such limitation to the vocational expert. If the ALJ did not intend to include the concentration/persistence/pace limitation within Plaintiff's RFC, there was no need to reference it in the hypothetical. Because the court cannot review the ALJ's decision, the case is reversed and remanded for further consideration of this issue, and possibly additional testimony by the vocational expert.
IT IS, THEREFORE, BY THE COURT ORDERED that the decision of the Commissioner is affirmed in part and reversed in part. The case is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings in accordance with this Memorandum and Order.
The case is closed.
Copies or notice of this order shall be transmitted to counsel of record.
IT IS SO ORDERED.