Opinion
Civ. No. 98-699 (DRD).
August 30, 1999
Robert J. Ryan, Esq., Attorney at Law, Bound Brook, N.J., Attorney for Plaintiff.
Faith S. Hochberg, Esq., United States Attorney, By: Peter G. O'Malley, Esq., Assistant U.S. Attorney, Newark, N.J., Attorney for Defendant.
OPINION
Plaintiff, Mary Williams, appeals pursuant to 42 U.S.C. § 405 (g) and 1383(c)(3) from a final determination of the Commissioner of Social Security ("Commissioner"), denying her application for social security disability insurance benefits and supplemental security income under Title II and XVI of the Social Security Act ("Act"). Plaintiff seeks a reversal of the dismissal of her claim by the Administrative Law Judge ("ALJ"). For the reasons set forth below, the Commissioner's decision will be reversed and the matter will be remanded to the ALJ for further consideration consistent with this opinion.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The following facts are set forth in the administrative records. Plaintiff first applied for disability insurance benefits and supplemental security income disability assistance on May 19, 1992. Tr. 72-98, 233-252. Plaintiff's claims were denied at the initial level and no further review was sought. Id. Plaintiff's current application for Social Security Disability benefits was filed on January 21, 1994. Tr. 99-102, 118-137, 144-164. A claim for supplemental security income that has not been included in the record is also under review. Plaintiff's application was denied both initially and on reconsideration. Tr. 103-115, 138-143, 243-262. Plaintiff requested a hearing and appeared before Administrative Law Judge ("ALJ") Ralph J. Muehlig on July 20, 1995. Tr. 37-72. On July 1, 1996, the ALJ issued a decision holding that Plaintiff was not disabled because she remained capable of performing sedentary work. Tr. 9-18. Once the Appeals Council denied Plaintiff's request for review, the ALJ's decision became the final decision of the Commissioner on December 18, 1997. Tr. 4-8. Plaintiff has exhausted all administrative remedies and now seeks review of the ALJ's decision.
Plaintiff alleged disability since August 29, 1993. Tr. 99. Plaintiff was born on August 13, 1948. Tr. 72. Plaintiff completed high school and has technical training in secretarial skills. Tr. 134. Plaintiff last worked in 1993 as a home health aide. Tr. 125. This job required standing and walking for up to six to eight hours, sometimes more, constant bending, and lifting and carrying up to 20 pounds. Id. Plaintiff also has experience as a senior food service worker, where she had to stand and walk seven to eight hours a day, bend frequently, and lift and carry up to 15 pounds frequently and 20 pounds occasionally. Tr. 126. Previously, Plaintiff had worked as a food service worker position, which was similar to the senior food service worker, except that she was required to lift up to 50 pounds with help. Tr. 128. Previously, Plaintiff worked as a "driver for retarded persons." Tr. 127. This work required Plaintiff to sit for 2 hours, stand or walk for five to seven hours, bend frequently, and lift and carry up to 10 pounds. Id. Plaintiff has applied for desk jobs, but has never been hired. Tr. 48.
A. Hearing Testimony
The following statements were put forth by Plaintiff in her testimony at the July 20, 1995 hearing. Plaintiff testified that she was "released" on medical leave in 1993 because of her asthma, her knees, and high blood pressure. Tr. 41-42. At that time Plaintiff was being seen Dr. Khanna and Dr. Cushman. Tr. 44-45. Plaintiff has had pulmonary function testing performed in 1992 and in 1995. Tr. 47.
Plaintiff fell and injured her right knee in 1992, but as a result of favoring her left knee, Plaintiff experiences pain and burning in both knees. Tr. 49. Plaintiff's back has bothered her since 1984, but her primary complaints concern her knees and asthma. Id. Plaintiff is not married and lives in an apartment with her 19 year old daughter and her 11 year old son. Id. Plaintiff does not have a car and has been receiving welfare since 1993. Id. Plaintiff does some of the cooking and her sisters and her children help sometimes. Tr. 58-59. Plaintiff goes to the local store, about a half a block away and cleans the house to an extent. Tr. 59-60. Plaintiff's asthma does not bother her all the time, but it does bother her every day, usually in the morning and late at night. Tr. 60. Plaintiff's asthma also bothers her more when she is depressed, when someone is smoking around her, if food is burning, if somebody is mopping with strong chemicals around the complex where she lives, and during extreme temperatures. Tr. 68. Plaintiff takes medication for the asthma "all the time." Tr. 67. Plaintiff was last hospitalized for her asthma in 1993. Tr. 69. Plaintiff testified that she has gone to the emergency room due to her asthma, the last time being in 1994. Tr. 70.
Plaintiff testified that she is depressed often, starting in October of 1994, after she stopped working. Tr. 62. Plaintiff gets headaches when her blood pressure is high. Tr. 64. Plaintiff started using a cane on her own for support when she walks and she can walk for approximately half an hour and can stand for about 10 minutes, at which time her knee gives out. Id.
Donald D. Perlman, M.D. testified as a specialist in allergy, immunology and pediatric pulmonary disease. Tr. 52. Dr. Perlman found Plaintiff's medical record to show that she has asthma, hypertension, and a problem with her right knee. Id. Dr. Perlman found no evidence of a backache in the record. Id. Dr. Perlman found the hypertension to be somewhat mild and that Plaintiff suffers from pain due to patella chondromalacia, though reports and x-rays show the knee to be stable and normal. Tr. 54. Tr. 55. Dr. Perlman interpreted one of the pulmonary function tests, performed by Dr. Khanna on June 10, 1992, as showing a poor effort and found it was not very helpful. Id. Dr. Perlman did not find any conclusion in Dr. Khanna's report dated June 11, 1992 and could not find a report from May 1995 which Plaintiff mentioned. Tr. 55-56. Dr. Perlman testified that from the record, Plaintiff's knee pain and her asthma do not meet or equal the listings for those illnesses. Tr. 56.
B. Medical Records
1. Asthma
The record indicates that Plaintiff has a "definite history of bronchial asthma" and shows that Plaintiff suffered a major asthma attack in October of 1988. Id. From May 24, 1992 to May 29, 1992, Plaintiff was admitted to the Hospital Center at Orange for shortness of breath, difficulty breathing, wheezing and chest congestion which was not responding to treatment. Tr. 202-11. The record indicates that Plaintiff had been using three medications for asthma, shortness of breath, and allergies at home. Id. Physical examination revealed bilateral expiratory wheezing in both lungs with decreased breathing sounds. Id. Plaintiff's chest x-ray was normal. Id. X-ray of the sinuses showed mucosal thickening of the maxillary and ethmoid sinuses bilaterally suggesting possible chronic sinusitis. Id. An echocardiogram was normal and an EKG showed normal sinus rhythm with an ST-T wave abnormality. Id. Daily blood theophylline level was normal. Id. Plaintiff was treated with antibiotics and her condition was good at discharge. Id. Plaintiff was diagnosed with asthma with respiratory distress and possible pansinusitis. Id. On discharge, Plaintiff was instructed to resume regular activity and a normal diet. Id.
On June 11, 1992, Dr. Yash K. Khanna prepared a report for the Division of Disability Determinations. Tr. 230. Dr. Khanna indicated that he had first seen Plaintiff on July 24, 1986 for allergic rhinitis and proscribed Tavist for her. Id. Dr. Khanna next saw Plaintiff on June 10, 1992 for an asthma attack, for which Plaintiff was hospitalized from May 24, 1992 until June 1, 1992. Id. Plaintiff was diagnosed with bronchial asthma. Id. An x-ray of Plaintiff's chest was negative. Id. X-rays of Plaintiff's paranasal sinuses showed sinusitis. Id. Pulmonary function studies suggest severe restriction. Id. FEV-1, before bronchodilator, was 1.59, post was 1.20. Id. Total vital capacity was 1.63, post was 1.20.Id. MVC was not done. Id. Dr. Khanna recorded that Plaintiff suffered from asthma and a typical attack included shortness of breath and persistent cough. Id. Dr. Khanna reported that Plaintiff suffered attacks at least once or twice a month, with some wheezing remaining in between attacks. Id. Plaintiff had been treated with steroids, both orally and by inhaler. Id. Dr. Khanna opined that Plaintiff's condition would interfere with her ability to work as she was constantly short of breath. Id.
On January 26, 1994, Plaintiff went to the emergency room of Columbus Hospital with complaints of wheezing. Tr. 213-18. Plaintiff reported pain when taking a deep breath. Id. Plaintiff had seen her primary physician the previous day and was given Proventil. Id. The diagnostic impression was "acute exacerbation of asthma" and Plaintiff was treated with Proventil and Solumedrol. Id.
On August 3, 1994, Dr. Khanna, examined Plaintiff at the request of theDepartment of Labor Division of Disability Determinations. Tr. 229. Dr. Khanna had been seeing Plaintiff since July 24, 1986 approximately two or three times per year, most recently on May 20, 1994. Id. Plaintiff had a history of bronchial asthma and hypertension. Id. Examination showed Plaintiff's blood pressure to be 150/90 and she was diagnosed with hypertension and bronchial asthma. Id. Dr. Khanna recorded that Plaintiff had no functional limitations and that Plaintiff had a good response when she took medications. Id.
Dr. Houshmand performed a pulmonary function test on Plaintiff on July 24, 1995. Tr. 271. The test results suggested a severe restriction. Id. FEV-1 was 1.36 prior to bronchodilation and 1.35 post-bronchodilation.Id. On March 20, 1996, Plaintiff underwent another pulmonary function test, administered by Dr. Lester Nadel. Tr. 272-77. Plaintiff's total vital capacity was 3.05, observed was 2.19, 72% of predicted. Id. No improvement was noted with bronchodilation. FEV-1 was 1.57 which is 64% of predicted, and only went up to 1.69 with bronchodilation. Id. Dr. Nadel reported that this was consistent with mild obstructive airway disease and possible restrictive airway disease with only minimal improvement with bronchodilation. Id.
2. Knee Injury
Plaintiff had an orthopedic consultation at the office of Michael K. Seidenstein, M.D. on April 8, 1991. Tr. 221. Plaintiff reported having pain in her right knee primarily when going up and down stairs as well as occasional stiffness. Id. Plaintiff informed Dr. Seidenstein that she fell out of a van and injured her knee, which worsened over time. Id. Plaintiff told Dr. Seidenstein that she saw Dr. Canario and that he informed her that she had a chipped bone in her knee, though x-rays were not taken according to Plaintiff. Id. Plaintiff showed Dr. Seidenstein an MRI which was normal. Id. Plaintiff reported that she had been advised to participate in physical therapy but that she had been unable to do so because of pain. Id. Plaintiff was also given a brace, but could not wear it due to pain. Id. Plaintiff reported having lost one month from work.Id.
Physical examination revealed that Plaintiff walked with a normal gait with some retropatellar pain, more marked on the right side than on the left, with some discomfort over the lateral aspect of the lateral joint line. Tr. 222. X-rays revealed no evidence of fracture or dislocation.Id. Dr. Seidenstein diagnosed Plaintiff with chondromalacia of her right knee. Id. Dr. Seidenstein further noted that Plaintiff could work, but should have a proper fitting Palumbo brace and should participate in physical therapy specifically designed to increase her quadriceps. Id.
On June 10, 1991, Plaintiff was seen at Dr. Seidenstein's office for physical therapy. Tr. 220. Plaintiff had previously been seen for physical therapy on May 29, 1991. Id. Plaintiff received hot moist packs, ultrasound and strengthening exercises for the chondromalacia in her right knee. Id. Plaintiff reported pain along the medial and lateral joint line in addition to retropatellar pain with pressure. Id. Plaintiff's range of motion remained within functional limits and Plaintiff continued to walk with "antalgic" gait. Plaintiff was instructed in a home program of isometrics and strengthening exercises with limited flexion. Id.
On June 10, 1991, Dr. Seidenstein wrote a letter to Traveler's Insurance stating that Plaintiff had knee complaints in the form of "giving way and pain." Tr. 219. Dr. Seidenstein reported that Plaintiff complained of increased pain when going up and down stairs and when in a seated position. Id. Plaintiff was working and did not follow physical therapy on a routine basis. Id. Plaintiff claimed to have lost control of her van because her knee was giving out. Id. Examination revealed retropatellar pain and mild lateral subluxation. Id. Dr. Seidenstein noted that he "fe[lt] she should continue to work," but that if her knee continued to give way and she could no longer live with the pain, then Plaintiff should have operative arthroscopy with chondroplasty of the patella and lateral release. Id.
Plaintiff underwent a consultative examination by A. Ahamed, M.D. on August 24, 1992. Tr. 224-28. Plaintiff reported taking Theo-Dur, Proventil Inhaler, and Vancenase Spray medications. Id. Orthopedic examination revealed that Plaintiff's upper extremities had no limitations and were within normal ranges of motion for both shoulders, elbows, and wrists. Id. Plaintiff's cervical spine was within a normal range of motion, muscle strength was normal, and there was no pain in any of the "root distributions." Id. Plaintiff's cervical spine showed no sensory loss and deep tendon reflexes were equal bilaterally. Id. Orthopedic examination of Plaintiff's lower extremities showed a normal, but limited active range of motion for both hips because of obesity of the lower body and abdomen. Id. Plaintiff's knee range of motion was normal, although very painful on the right side. Id. There was slight patellar swelling at the medial and lateral site. Id. Patellar pain was present as well as a slight weakness of the quadriceps ligament, measuring 4/5. Id. The knee joint was stable and muscle strength was 5/5 at both ankles. Id. Dr. Ahamed found no leg length discrepancy, no atrophy, and that the ankle joints were stable. Id. Dr. Ahamed detected no spinal tenderness or spasm in Plaintiff's lumbar region. Id. Range of motion was completely normal and Plaintiff could perform the straight leg raising test, which was negative bilaterally. Id.
Examination of Plaintiff's functional status revealed that Plaintiff was able to get on and off the examination table comfortably, dress and undress well, walk up and down the steps without much of a problem, and could stand on her toes, although she could not walk on her toes due to pain from the right knee. Id. Plaintiff tolerated less weight-bearing on the right lower extremity because of severe pain and concern that she could fall if the knee gave way. Id. However, Plaintiff did not need an assistive device to walk. Id. Otherwise, Plaintiff's gait was normal and she did not need any assistive devices. Id. Plaintiff had normal forward flexion, straight leg raising, and range of motion. Plaintiff could tolerate resistance of 4/5 in the right knee in extension and the muscle groups on the left side were normal, 5/5. Dr. Ahamed assessed Plaintiff as a 44 year old female who was having severe pain and limitation on ambulation and he diagnosed her with right patellar chondromalacia. Id.
3. Other Medical Records
From December 11, 1988 to December 18, 1988, Plaintiff was admitted to Columbus Hospital for dilatation and curettage and myomectomy for a fibroid uterus and menorrhagia. Tr. 168-86. On December 2, 1991, Plaintiff underwent dilatation and curettage due to metrorrhagia at Columbus Hospital. Tr. 188-200.
DETERMINATION OF DISABILITY AND BURDENS OF PROOF
Under Social Security guidelines, disability is defined as 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 12 months." 42 U.S.C. § 423(d)(2)(A).
The Commissioner has promulgated a five-step analysis for evaluating a claimant's disability. See 20 C.F.R. § 404. The ALJ first considers whether the claimant is currently engaged in "substantial gainful activity." 20 C.F.R. § 404.1520(a). If the claimant is working and the work is substantial gainful activity, his application for disability benefits is automatically denied. See 20 C.F.R. § 404.1520(b). If the claimant is not employed, the ALJ then proceeds to step two and determines whether the claimant has a "severe impairment" or "combination of impairments." 20 C.F.R. § 404.1520(c). A claimant who does not have a "severe impairment" is not disabled. Id.
Third, if the impairment is found to be severe, the ALJ determines whether the impairment is listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. If so, the claimant is conclusively presumed to be disabled, and the evaluation ends there. See 20 C.F.R. § 404.1520(d). If the impairment is not a listed impairment or its equivalent, the ALJ proceeds to step four.
At the fourth step, the ALJ determines whether the claimant can return to his previous type of employment. See 20 C.F.R. § 404.1520(e). If the claimant can perform his previous work, the claimant is not disabled. Id. The claimant has the burden of proving that he is unable to return to his former occupation. Rossi v. Califano, 602 F.2d 55, 57 (3d Cir. 1979). The Rossi court noted that a "plaintiff satisfies her initial burden of showing that she is unable to return to her previous employment when her doctor substantiates her subjective claims." Id. If the claimant has satisfied his initial burden that he is no longer able to perform his previous type of employment, the evaluation must continue to the fifth and final step.
For the fifth step "the burden of proof shifts to the [Commissioner] to show that the claimant, given [his] age, education and work experience, has the capacity to perform specific jobs that exist in the national economy." Id. at 55, 57. Entitlement to benefits is dependent on a finding that the claimant is incapable of performing some other type of work in the national economy. See 20 C.F.R. § 404.1520(f) (1995).
ADMINISTRATIVE FINDINGS
On July 1, 1996, ALJ Ralph J. Muehlig determined the following:
1. The claimant met the disability insured status requirements of the Act on August 29, 1993, the date the claimant stated [she] became unable to work, and continues to meet them through March 1995.
2. The claimant has not engaged in substantial activity since August 29, 1993.
3. The medical evidence establishes that the claimant has severe impairments due to asthma and chondromalacia of the right knee, but that [she] does not have any impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's testimony concerning her symptoms and limitations was generally credible.
5. The claimant has the residual functional capacity to perform the physical exertion and nonexertional requirements of work except for sitting more than six hours in an eight-hour workday, standing and walking for more than a total of two hours, lifting in excess of 10 lbs., or being exposed to environmental irritants ( 20 C.F.R. § 404.1545 and 416.945).
6. The claimant is unable to perform past relevant work as a transportation driver, home health aide, and food service worker.
7. The claimant's residual functional capacity for the full range of sedentary work is reduced by inability to tolerate exposure to environmental irritants.
8. The claimant is 47 years old, which is defined as a younger individual ( 20 C.F.R. § 404.1563 and 416.963).
9. The claimant has a 12th-grade education ( 20 C.F.R. § 404.1564 and 416.964).
10. The claimant does not have any acquired work skills, which are transferable to the skilled or semiskilled work functions of other work ( 20 C.F.R. § 404.1568 and 416.968).
11. Based on an exertional capacity for sedentary work and the claimant's age, education, and work experience, section 404.1569 of Regulations No. 4 and section 416.969 of Regulations No. 16 and Rule 201.21, Table No. 1, of Appendix 2, Subpart P, Regulations No. 4 would direct a conclusion of "not disabled."
12. The claimant's capacity for the full range of sedentary work has not been significantly compromised by additional nonexertional limitations. Accordingly, using the above-cited rule, as a framework for decisionmaking, the claimant is not disabled.
13. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision ( 20 C.F.R. § 404.1520(f) and 416.920(f)).
Tr. 17-18.
STANDARD OF REVIEW
A court must accept the findings of fact by the Commissioner if those findings are supported by "substantial evidence." 42 U.S.C. § 405(g). The Supreme Court has defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," which is "more than a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Morales on behalf of Morales v. Bowen, 833 F.2d 481, 488 (3d Cir. 1987). The Court of Appeals for the Third Circuit has developed certain rules to scrutinize the evidentiary basis for administrative findings:
This oft-cited language [describing the standard of substantial evidence] is not, however, a talismanic or self-executing formula for adjudication; rather, our decisions make clear that determination of the existence vel non of substantial evidence is not merely a quantitative exercise. A single piece of evidence will not satisfy the substantiality test if the Secretary ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence particularly certain types of evidence (e.g., that offered by treating physicians) or if it really constitutes not evidence, but mere conclusion. . . . The search for substantial evidence is thus a qualitative exercise without which our review of social security disability cases ceases to be merely deferential and becomes instead a sham.Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983) (citations omitted). "However, `even if the Secretary's factual findings are supported by substantial evidence, a court may review whether the administrative determination was made upon correct legal standards.'" Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983) (quoting Curtain v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981)).
To enable a court to properly perform its function of review, an administrative decision "should be accompanied by a clear and satisfactory explanation of the basis on which it rests." Cotter v. Harris, 642 F.2d 700, 704 (3d Cir.), reh'g denied, 650 F.2d 481 (3d Cir. 1981). The ALJ should indicate not only the evidence which supports his or her conclusion, but also indicate "significant probative evidence" that was rejected in order for the reviewing court to determine whether such evidence was not credited or simply ignored. Id. at 705. Additionally, when faced with conflicting evidence, an administrative decision must adequately explain in the record its reasons for rejecting or discrediting competent evidence. Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D.Pa. 1987).
DISCUSSION
The duty of a district court is not to review the case de novo, but instead to discern whether substantial evidence exists in the record to support the findings and determinations of the ALJ. See Bradley v. Bowen, 667 F. Supp. 161 (D.N.J. 1987).
Plaintiff asserts that the ALJ erred by 1) solely basing his decision upon the "grids" and failing to call a vocational expert when Plaintiff has nonexertional impairments and can not perform sedentary work, 2) disregarding Plaintiff's testimony about her depression and other impairments and symptoms, 3) failing to develop the record, and 4) ignoring the opinion of Plaintiff's treating physician and relying upon his own speculations.
Plaintiff's first argument concerns the ALJ's treatment of combined exertional and nonexertional impairments. Exertional impairments involve limitations on a claimant's ability to meet certain strength requirements of a job. 20 C.F.R. § 404.1569(b). Nonexertional impairments affect the claimant's ability to satisfy job demands other than the strength requirements. 20 C.F.R. § 404.1569(c). Nonexertional limitations include difficulty tolerating some physical features of particular work settings, such as an inability to tolerate dust or fumes. Id.
When a "claimant suffers from non-exertional impairments, instead of, or in addition to, exertional impairments" use of the grids may not be fully applicable. 20 C.F.R. Part 405, Appendix 2, § 200.00(e);Santise, 676 F.2d at 934-935. When both exertional and nonexertional impairments are at issue, the grids provide a framework to guide the ALJ's decision. 20 C.F.R. § 404.1569(d). When a claimant suffers from an impairment resulting in both exertional and nonexertional limitations,
the rules in this subpart are considered in determining first whether a finding of disabled may be possible based on the strength limitations alone and, if not, the rule(s) reflecting the individual's maximum residual strength capabilities, age, education, and work experience provide a framework for consideration of how much the individual's work capability is further diminished in terms of any types of jobs that would be contraindicated by the nonexertional limitations. . . . Full consideration must be given to all of the relevant facts in the case.
20 C.F.R. Pt. 404, Subpt. P, App. 2.
An ALJ may not separately evaluate exertional and nonexertional limitations by use of the grids. Burnam v. Schweiker, 682 F.2d 456, 458 (3d Cir. 1982). Rather, an ALJ should consider "whether work exist[s] for a person with the combination of impairments" that the claimant possesses. Id. As discussed in Hernandez v. Heckler, it is a different situation when the ALJ does consider how the claimant's work capability is further diminished by nonexertional limitations. 704 F.2d 857, 862 (5th Cir. 1983). In Hernandez, the ALJ first determined that the claimant's exertional impairments did not result in a disabled status.Id. The ALJ then concluded that the claimant's nonexertional limitations did not significantly alter the claimant's ability to perform sedentary work. Id.
In the current case, as in Hernandez, both exertional and nonexertional impairments were considered as a whole, and the nonexertional impairments were not found to further diminish Plaintiff's work capacity. Id. The ALJ first concluded that Plaintiff was not disabled by using the grids, finding that Plaintiff could perform sedentary work, and then addressed Plaintiff's nonexertional limitations. The ALJ found Plaintiff's ability to perform sedentary work was reduced by her "inability to tolerate exposure to environmental irritants." Tr. 18. The ALJ further stated that Plaintiff's "capacity for the full range of sedentary work has not been significantly compromised by additional non-exertional limitations," i.e., her hypertension. Id. Therefore, the ALJ did give Plaintiff's nonexertional limitations consideration in evaluating her disability and did not commit legal error in using the grids as a framework in his analysis.
Plaintiff's reliance on Green v. Schweiker , 749 F.2d 1066 (3d Cir. 1984) to support her argument that the ALJ erred in directly applying the medical-vocational grids when nonexertional limitations are at issue is unpersuasive. In Green , the ALJ rejected the claimant's complaints of nonexertional limitations, and therefore applied the grids without considering the claimant's nonexertional limitations at all. Id . at 1072.
Plaintiff further argues that the ALJ committed error by failing to utilize a vocational expert. The Commissioner must "persuade an ALJ-and ultimately, in most cases, a court-that jobs exist in the national economy that the claimant is able to fill." Santise v. Schweiker, 676 F.2d 925, 935 (3d Cir. 1982). It has been held that " one possible method of satisfying this burden, of course, might be to introduce testimony from a vocational expert." Id. Furthermore, when nonexertional impairments are found "and medical evidence of record is not dispositive of the determination of the plaintiff's residual functional capacity" a vocational expert must be employed. Burton v. Bowen, 704 F. Supp. 599, 604 (E.D.Pa. 1989) (citing Green v. Schweiker, 749 F.2d 1066, 1072 (3d Cir. 1984). The section of the Social Security Ruling dealing with the full range of sedentary work, SSR 96-9p, provides:
When there is a reduction in an individual's exertional or nonexertional capacity so that he or she is unable to perform substantially all of the occupations administratively noticed in Table No. 1, the individual will be unable to perform the full range of sedentary work: the occupational base will be "eroded" by the additional limitations or restrictions. However, the mere inability to perform substantially all sedentary unskilled occupations does not equate with a finding of disability. There may be a number of occupations from the approximately 200 occupations administratively noticed, and jobs that exist in significant numbers, that an individual may still be able to perform even with a sedentary occupational base that has been eroded.
Social Security Ruling 96-9p, 1996 WL 374185, at *4 (S.S.A. July 2, 1996).
Whether the individual will be able to make an adjustment to other work requires adjudicative judgment regarding factors such as the type and extent of the individual's limitations or restrictions and the extent of the erosion of the occupational base. The claimant's age, education, and work experience, including any transferable skills or education providing for direct entry into skilled work are to be taken into consideration.Id. at *5.
Where there is more than a slight impact on the individual's ability to perform the full range of sedentary work, if the adjudicator finds that the individual is able to do other work, the adjudicator must cite examples of occupations or jobs the individual can do and provide a statement of the incidence of such work in the region where the individual resides or in several regions of the country.Id.
The ALJ failed to state which environments Plaintiff is restricted from working in and the extent of the restriction as required. The ALJ must evaluate restrictions to avoid exposure to dust and odors and which are required to avoid undue exacerbation of Plaintiff's hypertension on an individual basis. Id. An ALJ's assessment "must specify which environments are restricted and state the extent of the restriction."Id. The ALJ's assessment of Plaintiff's ability to work fails to state whether only excessive or even small amounts of dust must be avoided. "An accurate accounting of an individual's abilities, limitations, and restrictions is necessary in order to determine the extent of erosion of the occupational base, the types of sedentary occupations an individual might still be able to do, and whether it will be necessary to make use of a vocational resource." Id. at *6 (emphasis added). However, in cases dealing with light work, this court has held that when an ALJ concludes that a claimant's ability to perform the full range of light work is restricted, the ALJ must utilize a vocational expert in determining whether suitable jobs exist for the claimant. Hanusiewicz v. Bowen, 678 F. Supp. 474, 478 (D.N.J. 1988). Thus, on remand the ALJ should consider the extent Plaintiff's nonexertional limitations limit her ability to perform sedentary work when deciding whether a vocational expert is needed and call such an expert if necessary.
Plaintiff also argues that the ALJ erred in not developing the record fully and by not calling a medical expert about Plaintiff's medical impairments. The ALJ must view the claimant's complaints in light of the medical evidence in the records. Williams v. Sullivan, 970 F.2d 1178, 1186-87 (3d Cir. 1992), cert. denied, 502 U.S. 924 (1993). In the Third Circuit Court of Appeals due process requires that a social security claimant be afforded a full and fair hearing. McCarthy v. Comm'r of Social Security, No. CIV. 95-4534, 1999 WL 325017, at *11 (D.N.J. May 19, 1999) (citing Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995) (citations omitted). It is the ALJ's duty to develop a full and fair record by securing relevant information regarding a claimant's entitlement to social security benefits. Id. However, the ALJ's duty does not displace the claimant's burden to prove her claim of disability. Id. (citing Hess v. Secretary of Health, 497 F.2d 837 (3d Cir. 1974) (acknowledging that although the Social Security Administration provides an applicant with assistance to prove his claim, it is not the ALJ's duty to search out all the relevant evidence available, as this would shift the burden of proof).
Plaintiff cites Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979), as support of her argument that the ALJ has a duty to fully develop the record. While Dobrowolsky focused on the ALJ's duty to play an active role in social security cases where the claimant was unrepresented, there is other authority to support Plaintiff's position. In Ferguson v. Schweiker, 765 F.2d 31, 36-37 (3d Cir. 1985), the Court of Appeals established that an ALJ has a duty to develop the record if he or she believes that there is insufficient evidence to make a sound determination. In addition, under the provisions for determining eligibility for disability insurance benefits, the regulations state that:
We will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques. We may do this by requesting copies of your medical source's records, a new report, or a more detailed report from your medical source, including your treating source, or by telephoning your medical source.20 C.F.R. § 404.1512(e)(1).
While no bright line test exists for determining when the ALJ has failed to develop the record, the ALJ has at least a limited duty to develop the record in both disability insurance benefits and SSI cases where the medical documentation submitted is unclear. Lashley v. Secretary of Health Human Services, 708 F.2d 1048, 1052 (6th Cir. 1983). While it is true that the ALJ does not have to go to great lengths to develop a claimant's case, the ALJ's duty to develop the record applies in cases where the ALJ believes that he or she is lacking information critical to the determination of a factual issue. Ferguson, 765 F.2d at 36; Thompson v. Califano, 556 F.2d 616, 618 (1st Cir. 1977).
The medical evidence in this case was inadequate both with respect to Plaintiff's asthma and with respect to her knee. Referring to the critical pulmonary function studies the ALJ stated, "[g]iven the significant discrepancies in these test results, it is difficult to determine the exact severity of the claimant's condition." Tr. 13. The ALJ relied heavily upon the testimony of the medical expert, Donald D. Perlman, both with respect to Plaintiff's asthma and knee conditions. Dr. Perlman's opinions in both respects were worthless. He testified that he was not an orthopedist, and when the ALJ asked him how to "fix" Plaintiff's chondromalacia, he replied, "[w]ell, I don't know but several of these [orthopedic] doctors have reported that exercises, bracing, so on and so forth and I imagine that the ultimate treatment would be some sort of surgery which hasn't. You could ask [Plaintiff] about that." Tr. 54, 53.
With respect to Plaintiff's asthma Dr. Perlman could only rely on the meager records of Plaintiff's treating physicians. He testified: "Then there's this issue of asthma which is actually poorly documented really in the record . . ." Tr. 55. Referring to critically important pulmonary function tests, he stated as to a report of one such test, ". . . I would interpret as showing a poor effort or not, not very helpful to in terms of interpretation. The doctor himself makes no interpretation." Id. He lamented the absence of the most recent test: "Now [Plaintiff] herself states that there was a pulmonary function test from May of '95 that was done but there's no record of that here at all." Tr. 56. Thus based on a totally inadequate medical record the medical expert, upon whom the ALJ relied, could only state ". . . it's clear that she has pain in her knee and that she has asthma. I can't say from the record that they meet or equal [or, by implication, do not meet or equal] the listings for those illnesses." Id. There was an inadequate medical record on the basis of which the medical expert could give an informed opinion and on the basis of which the ALJ could arrive at a decision. This should be remedied on remand.
Plaintiff's last argument is that the ALJ erred by ignoring the opinion of Plaintiff's treating physician and instead relied upon the non-examining medical expert and his own speculations. Plaintiff correctly points out that opinions from treating physicians are generally given more weight than opinions from non-treating sources, and even more weight than opinions from non-examining sources. 20 C.F.R. § 404.1527(d)(2). Regardless, the ALJ is to evaluate every medical opinion entered into evidence. 20 C.F.R. § 404.1527(d)(1). However, when controlling weight is not given to the treating source's opinion, the ALJ is to state his/her good reasons in the decision for the weight that was given to the treating source's opinion. Id. Also, when an ALJ rejects or discredits relevant evidence he/she must state so and give reasons. Cotter v. Harris, 642 F.2d 700 (3d Cir. 1981).
In the present case, the ALJ accepted the inadequately supported non-examining medical expert's opinions and did not mention Plaintiff's treating physician's opinion that Plaintiff's asthma "will interfere with her ability to work as she is constantly short of breath." Tr. 230-31. To the contrary, the ALJ states in his decision that the medical expert, Dr. Perlman, testified that Plaintiff was capable of performing sedentary work and that his opinion "is uncontradictory to anywhere else in the record. No treating physician has ever stated an opinion that the claimant was disabled for gainful employment . . ." Tr. 16. Because the ALJ failed to state his reasons for not giving weight to Plaintiff's treating physician's opinion, his finding that Plaintiff was capable of performing sedentary work is not supported by substantial evidence. On remand the ALJ should explain the weight he gives to the opinion of Plaintiff's treating physician as it may be supplemented to complete the record.
CONCLUSION
For the foregoing reasons, the decision of the Commissioner will be reversed and the matter will be remanded for further consideration consistent with this opinion. An appropriate order will be entered.