Opinion
Civil Action No: 00-2419-DJW
June 5, 2002.
MEMORANDUM AND ORDER
Plaintiff seeks judicial review, pursuant to 42 U.S.C. § 405(g) and 1383(c)(3), of the final decision of Defendant Commissioner of Social Security Administration (Commissioner) denying Plaintiff's applications for disability insurance and supplemental security income benefits under Titles II and XVI of the Social Security Act, as amended. The parties have filed their consent to jurisdiction by a U.S. Magistrate Judge, pursuant to 28 U.S.C. § 636(c)(1) and Fed.R.Civ.P. 73. (doc. 14) Plaintiff has filed her Brief (doc. 12) seeking judicial review of the Commissioner's decision. Defendant has filed a brief in opposition. (doc. 17) Plaintiff has also filed a reply brief. (doc. 18)
The Court has reviewed the administrative record and the briefs of both parties. As set forth below, the Court reverses the decision of the Commissioner and remands the case back to the administrative law judge for further proceedings consistent with this decision.
I. Standard of Review
Pursuant to 42 U.S.C. § 405(g), a court may render "upon the pleadings and transcript of record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." The court reviews the decision of the Commissioner to determine whether the record as a whole contains substantial evidence to support the Commissioner's decision. Castellano v. Secretary 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." Miller v. Chater, 99 F.3d 972, 975 (10th Cir. 1996) (quoting Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993)). The court may neither reweigh the evidence nor substitute its discretion for that of the Commissioner. Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000) (citing Casias v. Secretary of Health Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)). "Although the court is not to reweigh the evidence, the findings of the [Commissioner] will not be mechanically accepted." Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D.Kan. 1992). Nor will the findings be affirmed by isolating facts and labeling them substantial evidence, as the court must scrutinize the entire record in determining whether the Commissioner's conclusions are rational. Holloway v. Heckler, 607 F. Supp. 71, 72 (D.Kan. 1985). This determination entails a review of "the record as a whole, including whatever in the record fairly detracts from the weight of the Secretary's decision." Vogt v. Chater, 958 F. Supp. 537, 538 (D.Kan. 1997). "Evidence is not 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 conclusions.'" Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir. 1985) (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)).
The court also reviews the decision of the Commissioner to determine whether the Commissioner applied the correct legal standards. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir 1994). The Commissioner's failure to apply the proper legal standard may be sufficient grounds for reversal independent of the substantial evidence analysis. Glass, 43 F.3d at 1395 (citing Thompson, 987 F.2d at 1487). The court reviews the decision of the Commissioner to determine whether the record as a whole contains substantial evidence to support the Commissioner's decision and whether she applied the correct legal standards. Hamilton v. Secretary of Health Human Servs. of U.S., 961 F.2d 1495, 1497 (10th Cir. 1992).
II. Procedural History
Plaintiff constructively filed her application for supplemental security income benefits on April 12, 1996. ( See Certified Tr. of the Record at 110-13, 256, doc. 9, hereinafter referred to as Tr.) Plaintiff also filed an application for disability insurance benefits under Title II of the Act, 42 U.S.C. § 401-33, on April 23, 1996. (Tr. 257-59) In both applications, she claimed she had been disabled as of December 31, 1987. (Tr. 111, 257) The Commissioner denied both claims initially, (Tr. 85, 261-265) and upon reconsideration. (Tr. 86-89, 268-271)
On June 12, 1997, an administrative law judge (ALJ) conducted a hearing on both claims. (Tr. 37-78) Plaintiff appeared in person with her attorney. (Tr. 39) On July 19, 1997, the ALJ issued his decision in which he found Plaintiff was not under a "disability" as defined in the Social Security Act at any time through her date last insured or at any time through the date of the decision. (Tr. 20-31) In reaching his conclusion, the ALJ determined that Plaintiff's impairments did not prevent her from performing her past relevant work as a secretary/office worker. (Tr. 29-30) Therefore, the ALJ concluded that Plaintiff was not disabled under step four of the Commissioner's five-step sequential process for determining disability.
On September 5, 1997, Plaintiff requested a review of the hearing decision by the Appeals Council and submitted additional medical evidence relating to her alleged impairments. (Tr. 321) The Appeals Council issued an Order of Appeals Council stating that the evidence submitted by Plaintiff was received and made a part of the record. (Tr. 7) On July 28, 2000, the Appeals Council found no grounds for review and concluded that neither the contentions nor the additional evidence submitted by Plaintiff provided a basis for changing the ALJ's decision. (Tr. 5-7) Thus, the findings of the ALJ stand as the final decision of the Commissioner in this case.
The additional evidence submitted to the Appeals Council consisted of: (1) July 17, 1989 condition report by Dr. Marshall Brewer, (2) August 2, 1990 condition report by Dr. Brewer, (3) August 1, 1991 condition report by Dr. Brewer, (4) January 23, 1992 verification of disability status report by Dr. Brewer, (5) August 26, 1996 condition report by Dr. Brewer, (6) July 14, 1998 condition report by Dr. Geoffrey Plumlee, (7) August 8, 1997 condition report by Dr. Ronald Dailey, (8) July 6, 2000 letter from Dr. Krishna Rama Das, (9) June 22, 2000 letter from Dr. Gary M. Kramer, (10) July 3, 2000 letter from Dr. Bob Sager, and (11) Plaintiff's treatment records dated in October 1998. These documents are attached to Plaintiff's Brief (doc. 12) as Exhibits A through K.
III. Factual Summary
Plaintiff testified she was age 42 at the time of the hearing. (Tr. 42) Thus, according to Social Security regulations, she is classified as a younger individual. 20 C.F.R. Part 404, Subpart P, App. 2, Rule 200.00(h). She has a high school education and is about two credit hours away from obtaining a two-year associate's degree. (Tr. 42) She has no other formal education or training. (Tr. 43) She was last employed December 1, 1987 and her past work includes secretarial and office contractor work. (Tr. 43, 153) Plaintiff last met the 20/40 earnings requirement for purposes of Title II benefits on March 31, 1992. (Tr. 115) She alleges an onset date of disability of December 31, 1987.
Plaintiff claims she first became disabled after complications from a cesarean section to deliver her son in December 1987. She alleges the following disabilities: incisional hernia due to complications arising from the cesarean section; degeneration of the lumbar and thoracic spine; osteoarthritis of the spine, hips, and knees; osteoporosis; depression; fybromyalgia; and carpal tunnel syndrome.
IV. The ALJ's Findings
In his order of July 19, 1997, the ALJ made the following findings:
1. The claimant met the disability insured status requirements of the Act on December 31, 1987, the date the claimant stated she became unable to work, and has acquired sufficient quarters of coverage to remain insured only through March 31, 1992.
2. The claimant has not engaged in substantial gainful activity since December 31, 1987.
3. The medical evidence establishes that the claimant has degenerative joint disease of the back and lower extremities and emotional impairments which are severe but which do not meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's statements concerning her impairments and their impact on her ability to work are only credible to the extent that they impose the limitations in the statement of residual functional capacity.
5. The claimant has a residual functional capacity for light work with limitations regarding position change option, limitations against continuous or frequent/repetitive handling and some restrictions against close public or co-worker contacts.
6. The claimant's past relevant work as a secretary or office worker did not require the performance of work functions precluded by her medically determinable impairments.
7. The claimant's impairments do not prevent her from performing her past relevant work.
8. The vocational expert did cite a number of alternative skilled and unskilled jobs which the claimant could perform considering any disturbance of fine manipulation capacity and interactive ability.
9. The claimant has not been under a disability, as defined in the Social Security Act, at any time through the date her insured status expired, or at any time through the date of this decision.
(Tr. 30-31)
V. Plaintiff's Challenges to the Commissioner's Decision
Plaintiff challenges the decision of the Commissioner, which denied her disability insurance and supplemental security income benefits, on several grounds. Plaintiff contends that the Appeals Council should have remanded this case back to the ALJ based upon the admittance of new and material evidence submitted to the Appeals Council. Plaintiff also contends the Commissioner's decision was not based on substantial evidence on the record as a whole, and that the ALJ made several errors that are grounds for reversal of his decision. Specifically, she contends that: (1) the ALJ erred in determining the weight to be given her testimony, (2) the ALJ erred in failing to give proper weight to her treating physician, (3) the ALJ failed to fully develop the record regarding her impairments, (4) the ALJ failed to adequately support his step three determination, (5) the ALJ failed to link the residual functional capacity determination with specific evidence in the record, (6) the ALJ failed to make specific findings regarding the physical and mental demands of her past relevant work, (7) the ALJ's Residual Functional Capacity (RFC) determination is not consistent within his decision, (8) the ALJ erred at step two by failing to find her carpal tunnel syndrome to be a severe impairment, and (9) the ALJ erred in the hypothetical presented to the vocational expert. Plaintiff urges reversal with an immediate award of benefits because the evidence establishes that she is totally disabled.
The Commissioner seeks an order affirming the decision, denying plaintiff disability benefits under 42 U.S.C. § 401-33 and supplemental security income under 42 U.S.C. § 1381-85. The Commissioner submits that substantial evidence supports the decision that plaintiff was not disabled during the relevant period of December 31, 1987 through March 31, 1992 or any time through the date of the ALJ's decision.
VI. Analysis and Discussion
A. Remand to the Appeals Council
Plaintiff contends that the Appeals Council should have remanded this case back to the ALJ due to the admittance of new and material evidence that is contrary to the ALJ's findings and conclusion. The Commissioner argues that the Appeals Council specifically stated it considered the additional evidence submitted by Plaintiff but concluded that it did not provide a basis for changing the ALJ's decision.
The Social Security regulations dictate when the Appeals Council is to consider additional evidence. 20 C.F.R. § 404.970(b), 416.1470(b). If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the ALJ's hearing decision. Id. Therefore, the Appeals Council must consider any additional evidence submitted with a request for review if that evidence is (1) new, (2) material, and (3) relates to the time period on or before the ALJ's decision. Hutchison v. Chater, No. 95-4084, 1996 WL 165091, at *10 (D.Kan. Feb. 20, 1996) (citing Box v. Shalala, 52 F.3d 168, 171 (8th Cir. 1995)). The Appeals Council shall evaluate the entire record including the new and material evidence submitted and review will be granted where the Council finds that the ALJ's actions, findings, or conclusion is contrary to the weight of the evidence currently of record. 20 C.F.R. § 404.970(b), 416.1470(b). If the Appeals Council denies review after considering the additional evidence, the ALJ's decision stands as the final decision, but the administrative record reviewed on judicial appeal includes the new evidence first submitted to the Appeals Council. O'Dell v. Shalala, 44 F.3d 855, 858-59 (10th Cir. 1994).
In this case, the Appeals Council considered the additional evidence submitted by Plaintiff, but concluded that there was no basis under 20 C.F.R. § 404.970(b) and 416.1470(b) for granting Plaintiff's request for review. (Tr. 5) Thus, the administrative record reviewed on judicial appeal includes the new evidence submitted by Plaintiff to the Appeals Council. The Court reviews the ALJ's decision and determines whether substantial evidence, which now includes the new evidence, supports the ALJ's findings and decision.
The Appeals Council identified the following additional evidence it considered in its Order of the Appeals Council (Tr. 7):
Exhibit AC-1 Letter from M. Joseph Kuhn, Esq., dated January 15, 1998, and enclosures. (Tr. 282-301)
Exhibit AC-2 Letter from Krishna Rama Das, M.D., F.A.P.A., dated January 27, 1999, and enclosures. (Tr. 302-307)
Exhibit AC-3 Letter from M. Joseph Kuhn, Esq., dated May 3, 1999, and enclosures. (Tr. 308-314)
Exhibit AC-4 Letter from M. Joseph Kuhn, Esq., dated November 4, 1999, and enclosures (Tr. 315-318).
Exhibit AC-5 Letter from M. Joseph Kuhn, Esq., dated April 20, 2000, and enclosures. (Tr. 319-324)
Exhibit AC-6 Brief from M. Joseph Kuhn, Esq., dated July 14, 2000.
(Tr. 325-377)
Plaintiff argues that the Appeals Council erred in not remanding the case back the to ALJ due to this new and material evidence. The Commissioner argues that while some of the records from various treating physicians dating from July 17, 1989, through July 3, 2000 may be new, not all of them are relevant, and many of the records relate to a period after the ALJ's decision of July 19, 1997. The Commissioner asserts that Plaintiff must allege good cause for her failure to submit the relevant records prior to the ALJ's decision.
When Plaintiff requested review by the Appeals Council, she submitted as additional evidence three condition reports and a verification of disability status report from her treating physician for the time period 1989 through 1992. She also submitted condition reports from Drs. Plumlee and Daily and opinion letters from Drs. Das, Kramer, and Sager. In the condition report dated July 7, 1989, Plaintiff's treating physician, Dr. Brewer, stated that, as of February of 1988, Plaintiff's incisional hernia and obesity prevented her from being employed in a competitive workplace and substantially limited her employment capabilities. (Ex. A to Pl.'s Br.) In another condition report dated August 2, 1990, Dr. Brewer reconfirmed his incisional hernia diagnosis, and added anxiety and chronic depression. He again stated that her condition prevented her from being employed in a competitive workplace and substantially limited her employment capabilities. (Ex. B to Pl.'s Br.) In the third condition report submitted to the Appeals Council, dated August 1, 1991, Dr. Brewer stated that due to an abnormal hernia repair, Plaintiff was unable to be employed in a competitive work environment and she was substantially limited in her employment capabilities. (Ex. C to Pl.'s Br.)
These documents are attached to Plaintiff's Brief (doc. 12) as Exhibits A through E.
These documents are attached to Plaintiff's Brief (doc. 12) as Exhibits F through J.
The Court determines that Plaintiff need not show good cause for failing to submit her medical records prior to the ALJ's decision because she submitted these medical records to the Appeals Council. See O'Dell, 44 F.3d at 859 (section 404.970(b) authorizes the submission of new evidence to the Appeals Council without a "good cause" requirement).
Furthermore, inapposite to the Appeals Council's conclusion, the treating physician evidence submitted by Plaintiff appears directly contrary to the ALJ's decision that Plaintiff is not disabled. In fact, the ALJ cites the lack of medical records prior to March 31, 1992 as a reason for discrediting Plaintiff's testimony as to her disability and work limitations. (Tr. 26) The ALJ also states that "no doctor who has treated or examined [Plaintiff] has stated or implied that she is disabled or seriously incapacitated." (Tr. 26) The additional evidence submitted to the Appeals Council appears to directly contradict these statements by the ALJ. Three condition reports from Plaintiff's treating physician, dated 1989 through 1991, state that Plaintiff is substantially limited in her employment capabilities. (Ex. A-C to Pl.'s Br.) Her treating physician opines in two condition reports dated 1989 and 1991 that she has a physical condition that prevents her from being employed other than in noncompetitive work activities in a protected environment (e.g., in a sheltered workshop). (Ex. A-C to Pl.'s Br.) Plaintiff also submitted her treating physician's January 23, 1992 verification of disability/handicapped status for the Southwest Kansas Area Agency on Aging to the Appeals Council. In that document, Dr. Brewer stated that due to a "postoperative ventral hernia," Plaintiff was unable to engage in any substantial gainful activity, and that the condition would last at least twelve months. Furthermore, he listed the disability as beginning about February 1988. (Ex. D to Pl.'s Br.)
As Plaintiff's additional evidence received by the Appeals Council appears contrary to the ALJ's actions, findings, and conclusion and the Appeals Council has not provided any explanation for its determination that there was no basis for remanding the case back to the ALJ, the Court concludes that it is appropriate for this case to be remanded to the ALJ for consideration of this additional evidence of record.
B. Credibility Determination
Plaintiff also contends that the ALJ erred in determining the weight to be given to her testimony. She argues that the ALJ failed to make specific findings supporting his decision to find her testimony regarding her limitations not credible. She states that the ALJ never made a specific credibility determination but instead concluded that "[Plaintiff's] statements concerning her impairments and their impact on her ability to work are credible only to the extent that they impose the limitations in the statement of residual functional capacity." (Tr. 30) She suggests that the erroneous credibility determination caused the ALJ to err in concluding that she was able to perform her past relevant work.
Generally, credibility determinations are the province of the ALJ, "the individual optimally positioned to observe and assess witness credibility." Adams v. Chater, 93 F.3d 712, 715 (10th Cir. 1996) (quoting Casias, 933 F.2d at 801). Consequently, a "court ordinarily defers to the ALJ as trier of fact on credibility, . . . [but] deference is not an absolute rule." Thompson, 987 F.2d at 1490. It is recognized that some claimants exaggerate symptoms for the purposes of obtaining government benefits, and deference to the fact-finder's assessment of credibility is the general rule. Frey v. Bowen, 816 F.2d 508, 517 (10th Cir. 1987). Thus, a court will not upset credibility determinations when supported by substantial evidence. Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995) (quoting Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)). The issue before the court is whether the ALJ based his credibility finding on consideration of all the relevant evidence, and if so, whether his conclusion is supported by substantial evidence.
Where there is evidence of allegedly disabling pain symptoms, courts in the Tenth Circuit look to Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987), for the framework of proper analysis. The court must consider (1) whether claimant established a pain-producing impairment by objective medical evidence; (2) if so, whether there is a "loose nexus" between the proven impairment and the claimant's subjective allegations of pain; and (3) if so, whether considering all the evidence, both objective and subjective, claimant's pain is in fact disabling. Luna, 834 F.2d at 165; see also Kepler, 68 F.3d at 390 (quoting Glass, 43 F.3d at 1395). If objective medical evidence shows a pain-producing impairment, the ALJ then must consider the claimant's allegations of severe pain and decide whether to believe them. Thompson, 987 F.2d at 1489. Factors to be considered at this point include: "the levels of medication and their effectiveness, the extensiveness of the attempts (medical or non-medical) to obtain relief, the frequency of medical contacts, the nature of daily activities, subjective measures of credibility that are peculiarly within the judgment of the ALJ, the motivation of and relationship between the claimant and other witnesses, and the consistency of compatibility of non-medical testimony and objective medical evidence." Kepler, 68 F.3d at 391 (quoting Thompson, 987 F.2d at 1489).
The ALJ must link his credibility finding to substantial evidence by explaining why the specific evidence relevant to each factor led him to conclude claimant's subjective complaints were not credible. Kepler, 68 F.3d at 391. However, findings as to credibility should be "closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings." Id. (quoting Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988) (footnote omitted)). The ALJ must articulate specific reasons for questioning the claimant's credibility where subjective pain testimony is critical. Kent v. Apfel, 75 F. Supp.2d 1170, 1182 (D.Kan. 1999) (citing Kepler, 68 F.3d at 391).
The ALJ found that "[Plaintiff's] complaints suggest a greater severity of impairment than can be shown by the objective medical evidence alone." (Tr. 26) The ALJ listed the factors the regulations provide for determining the credibility of plaintiff's pain testimony. (Tr. at 26) He then provided several reasons for his conclusion that "[Plaintiff's] impairments do not indicate the presence of disability or limitation so severe in nature that they preclude work activity." (Tr. 26)
The first reason the ALJ sets forth in support of his credibility determination is Plaintiff's minimal medical records prior to March 31, 1992, the date Plaintiff was last insured for disability insured status. He further states that "no doctor who has treated or examined the claimant has stated or implied that she is disabled or seriously incapacitated. X-rays of the spine, hip and knee are essentially normal." (Tr. 26) Plaintiff's testimony at the hearing before the ALJ and the medical records presented at the hearing do not substantially support these statements by the ALJ. (Tr. 44, 219-224) Furthermore, Plaintiff's medical records submitted to the Appeals Council contradict several of these statements. The Court determines that on at least six different dates between 1989 and 1996, Plaintiff's treating physician, Dr. Brewer, opined that she had a physical condition that prevented her from being employed. (Tr. 193-94, Exs. A-E to Pl.'s Br.) In addition to her treating physician, four other doctors have opined that she is disabled. (Exs. F-H, J to Pl.'s Br.) In particular, Dr. Kramer, an orthopedic surgeon, stated in a letter dated June 22, 2000 that he had evaluated Plaintiff's radiographs and that they demonstrated "grade I degenerative spondylolisthesis of L5 on S1 and certainly marked degenerative changes in the posterior elements throughout the lumbar spine." He also indicated that there had been a "fairly steady progression of degenerative disease in the back over film reports . . . dated in 1997 and early in 1998." (Ex. I to Pl.'s Br.) The Court therefore determines that the record does not contain substantial evidence to support the ALJ's stated reason for discrediting Plaintiff's complaints.
The ALJ also states in support of his credibility determination that "[Plaintiff] has had no surgery or inpatient hospitalization." (Tr. 26) The Court finds this statement to be inconsistent with the ALJ's earlier factual discussion of Plaintiff's history of an incisional hernia since the birth of her child by cesarean section in February 1988 and her subsequent surgery for hernia repair in December 1990. (Tr.22) The Court again determines that the record does not contain substantial evidence to support the ALJ's stated reason for discrediting her claims of disability.
The ALJ also discredits Plaintiff's testimony based upon his perception that Plaintiff has not always been compliant with medical treatment. (Tr. 27) He states that she attended physical therapy intermittently and was advised to wean herself from prescription pain medications. (Tr. 27) The evidence submitted to the Appeals Council, as well as the record before the ALJ does not support these statements by the ALJ. Physical therapy notes indicate that Plaintiff was discharged from physical therapy due to "little to no relief is being received." (Tr. 196) Also, Dr. Das wrote a letter stating that "[Plaintiff] has been compliant with treatment and has taken the medications as prescribed to her." (Ex. H to Pl.'s Br.)
Regarding the ALJ's statements as to Plaintiff's prescription pain medications, he merely states that "[t]he record indicates a dependency regarding prescription narcotics, however, there does not appear to be a substance addiction disorder." (Tr. 27) He also notes that Plaintiff takes prescription medications but states that the evidence does not indicate that the current medications are ineffective or result in any side effects. (Tr. 27) While the ALJ apparently tries to dismiss Plaintiff's long-term use of narcotic pain medication, as well as other medications as prescribed by her physician, the Court finds that such use of medication supports her allegations of disabling pain.
The ALJ also appears to discredit Plaintiff's testimony as to work limitations on the basis that he perceived discrepancies and exaggerations in her testimony, particularly relating to her relationship with her family, the date she claimed she became disabled, her statement that she has the bones of a 70-year-old person, and her statements as to difficulty with sitting and concentrating. (Tr. 26-27) These discrepancies identified by the ALJ are not supported or corroborated by the record. The ALJ states that Plaintiff testified she "got along well with her family" but she told Dr. Das that she comes from a dysfunctional background where her father was an alcoholic and her mother mentally abusive. At the hearing before the ALJ, Plaintiff testified that: "I loved my father but I don't believe we were ever really close. We had a lot of difficulties but any of the depression I've had has nothing to do with my father's illness or death. I believe I handled that quite well." (Tr. 65-66) The ALJ's characterization of Plaintiff's testimony that she "got along well with her family" is not supported by the record.
The ALJ also discredited Plaintiff's testimony because of claimed discrepancies in her statements. The ALJ found Plaintiff's statement that she became disabled and stopped working in 1987 inconsistent with her later statement that she stopped working because of the birth of her son. The Court determines that the record reflects that Plaintiff's son was born in December 1987, which is consistent with her claims she first became disabled on December 31, 1987 due to complications arising from the birth of her son by cesarean section.
The Court determines that substantial evidence does not support the ALJ's conclusions that "[Plaintiff's] complaints suggest a greater severity of impairment than can be shown by the objective medical evidence alone" and "[Plaintiff's] impairments do not indicate the presence of disability or limitation so severe in nature that they preclude work activity." Therefore, this case should be remanded so that the ALJ can re-evaluate Plaintiff's credibility concerning her claims of disabling pain and work restrictions in light of the medical information submitted to the Appeals Council.
C. Treating Physician's Opinion
Plaintiff next claims that the ALJ erred in failing to give proper weight to the opinion of Dr. Brewer, her treating physician. The Commissioner argues that the ALJ gave proper weight to the medical opinion of Dr. Brewer because he found his opinion inconsistent with the other medical evidence.
"A treating physician may offer an opinion which reflects a judgment about the nature and severity of the claimant's impairments including the claimant's symptoms, diagnosis and prognosis, and any physical or mental restrictions." Castellano, 26 F.3d at 1029; 20 C.F.R. § 404.1527(a)(2). The Commissioner will give controlling weight to that type of opinion if it is well supported by clinical and laboratory diagnostic techniques and if it is not inconsistent with other substantial evidence in the record. Id.; 20 C.F.R. § 404.1527(d)(2). Although the ALJ may disregard the opinion of a treating physician if it is conclusory and unsupported by medical evidence, the ALJ must articulate "specific, legitimate reasons" for doing so. Frey, 816 F.2d at 513. A treating physician may also proffer an opinion that a claimant is totally disabled. Castellano, 26 F.3d at 1029. The treating physician's opinion that claimant is disabled is not dispositive, however, because final responsibility for determining the ultimate issue of disability is reserved for the Commissioner. Id.; 20 C.F.R. § 404.1527(e)(2).
The Court notes that the record before the ALJ contained seven pages of medical records from Plaintiff's treating physician, Dr. Brewer. (Tr. 191, 193-94, 197-200). In a condition report dated August 1995, Dr. Brewer opined that "Plaintiff had marked difficulty standing, walking, and sitting which is expected to persist for 12 months." (Tr. 193-94) In Dr. Brewer's treatment notes dated January 1995 and August 1995, he reported instances where Plaintiff had complained of back pain and back spasms. He then referred her to a physical therapist for her back pain. (Tr. 197-98)
In the ALJ's twelve-page decision, he makes only one brief reference to Plaintiff's treating physician and that reference was to a single notation in the medical records that Plaintiff stated she was "feeling good and doing real well" on October 30, 1995. (Tr. 22) The Court notes that this comment by Plaintiff's treating physician was after the physician noted that Plaintiff had lost twenty pounds. (Tr. 191) Thus, Plaintiff's comment was more likely referring to her feelings about the weight loss and not a general statement of her overall condition. The ALJ also omits the physician's notation that Plaintiff was having some pain in her hips on that same visit. (Tr. 191) The Court determines that the ALJ appears to be selecting statements Plaintiff made to her treating physician and using those statements out of context to support his decision. In addition, the ALJ does not address Dr. Brewer's opinion that Plaintiff had marked difficulty standing, walking, and sitting which was expected to persist for 12 months. (Tr. 194) As the ALJ failed to articulate "specific, legitimate reasons" for disregarding Dr. Brewer's opinion, the Court therefore determines that the ALJ failed to give proper weight to the opinion of Plaintiff's treating physician. Upon remand, the ALJ shall give controlling weight to the opinion of Plaintiff's treating physician unless he articulates specific and legitimate reasons for disregarding them.
D. The ALJ's Duty to Fully Develop the Record
Plaintiff next contends that the ALJ failed to fully develop the record regarding her impairments because he did not obtain additional treatment records from her treating physician, Dr. Brewer. Plaintiff argues that the ALJ noted in his decision that Plaintiff's earliest medical records date from May 1988 (Tr. 22) and there are "minimal medical records" prior to the Plaintiff's date last insured of March 31, 1992 (Tr. 26), but he did not investigate into the lack of medical records prior to that date. The Commissioner argues that Plaintiff is responsible for providing medical evidence that she is disabled.
A claimant bears the burden of proving disability prior to the expiration of her insured status. Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997). Nonetheless, because a social security disability hearing is a nonadversarial proceeding, the ALJ bears responsibility for ensuring that "an adequate record is developed during the disability hearing consistent with the issues raised." Henrie v. United States Dep't of Health Human Servs., 13 F.3d 359, 360-61 (10th Cir. 1993); 20 C.F.R. § 404.1512(a)-(c), 1513, 1516. This duty includes the requirement that the ALJ develop a complete medical record by obtaining medical evidence from the twelve months prior to the date of plaintiff's application for benefits. 42 U.S.C. § 423(d)(5)(B); 20 C.F.R. § 404.1512(d) and 416.912(d). The regulations also require the ALJ to develop Plaintiff's complete medical history for the twelve-month period prior to the month Plaintiff was last insured for disability insurance benefits. 20 C.F.R. § 404.1512(d)(2) and 416.912(d)(2). If evidence from the plaintiff's treating physician is inadequate to determine if the plaintiff is disabled, the Commissioner must first recontact the treating physician to determine if additional needed information is available. 20 C.F.R. § 404.1512(e) and 416.912(e)
Plaintiff constructively filed her application for supplemental security income benefits on April 12, 1996. She filed her application for disability insurance benefits on April 23, 1996. Her date last insured was March 31, 1992. Thus, the ALJ had a duty to develop her complete medical history for the twelve months prior to April 1996 and the twelve months prior to March 1992.
During the hearing before the ALJ, Plaintiff presented medical records from her treating physician, Dr. Brewer, including five pages of history sheets and a condition report dated August 23, 1995. The history sheets from Dr. Brewer's office cover the time period from August 5, 1993 through April 1, 1996. (Tr. 191, 197-200) Plaintiff argues that the ALJ should have obtained records from Dr. Brewer relating to the twelve-month period prior to the month Plaintiff was last insured for disability insurance benefits, or March 31, 1991 through March 31, 1992.
In this case, the ALJ did not meet his burden of fully and fairly developing the record. The medical records presented at the hearing are insufficient to determine whether Plaintiff was disabled for the twelve-month period prior to her date last insured, March 31, 1992. The medical evidence in the record before the ALJ consisted primarily of treatment notes of Plaintiff's treating physician for the time frame of August 1993 through April 1996. Taken alone, these notes are confusing and insufficient from which to draw reliable conclusions about Plaintiff's alleged impairments. They do, however, establish that Plaintiff presented sufficient medical evidence to warrant further investigation of her claimed impairments. Furthermore, the total absence of medical records from Plaintiff's treating physician prior to August 1993, in light of Plaintiff's claimed disability onset date of December 31, 1987 and her statements that she had been treated by Dr. Brewer since June 1988 (Tr. 150, 186), should have alerted the ALJ to the fact that he had not obtained the complete medical record from her treating physician.
E. Listing of Impairments
Plaintiff next argues that the ALJ erred at step three of the sequential evaluation process by failing to adequately discuss the evidence and the reasons for his determination that Plaintiff does not meet or equal a listed impairment.
The Commissioner has developed a five-step sequential evaluation process for determining disability. Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988); 20 C.F.R. § 404.1520(a)-(f), 416.920).
Step one determines whether the claimant is presently engaged in substantial gainful activity. If he or she is not, the decision maker proceeds to step two, determining whether the claimant has a medically severe impairment or combination of impairments which significantly limit the claimant's ability to work. If the claimant is able to make such a showing, the decision maker proceeds to step three, whether the impairment meets or equals one of a number of listed impairments that are so severe as to preclude substantial gainful activity. If the claimant's impairment does not satisfy this step, then the decision maker proceeds to step four, where the claimant must show that the impairment prevents the claimant from performing work he has performed in the past. At step five, the burden shifts to the Commissioner to show that the claimant retains the residual functional capacity (RFC) to do other work that exists in the national economy.Thomas v. Apfel, No. 99-2067-JWL, 1999 WL 1423073, at *3 (D.Kan. Dec. 14, 1999) (internal citations omitted).
At step three of the sequential analysis, the ALJ determines if claimant's impairments meet or equal one of a number of listed impairments. 20 C.F.R. Part 404, Subpart P, Appendix 1 (Listing of Impairments) gives the requirements that must be met for an individual to be conclusively presumed disabled. Section 12.04 of the Listing of Impairments addresses the requirements for affective disorders. In order to be found disabled under Section 12.04, a claimant must show that the criteria in both Sections A and B have been met. When a claimant's impairments either meet or equal the listed criteria in the applicable Listing of Impairments, the claimant is conclusively presumed to be disabled. Bowen v. Yuckert, 482 U.S. 137, 141 (1987).
The required level of severity for affective disorders is met when the requirements of both section A and section B are satisfied, or when the requirements in section C are satisfied. Section A criteria include medically documented persistence, either continuous or intermittent, of the following:
1. Depressive syndrome characterized by at least four of the following:
a. Anhedonia or pervasive loss of interest in almost all activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide, or
i. Hallucination, delusions, or paranoid thinking; . . .20 C.F.R. Part 404, Subpart P, App., 12.04A.
Under Section B criteria for affective disorders, claimant must be found to have at least two of the following functional limitations present:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Deficiencies of concentration, persistence or pace; or
4. Repeated episodes of decompensation, each of extended duration.20 C.F.R. Part 404, Subpart P, App., 12.04B.
When there is evidence of a mental impairment that allegedly prevents a claimant from working, the Commissioner must follow the procedure for evaluating mental impairments set forth in 20 C.F.R. § 404.1520a and 416.920a and document the procedure accordingly. Cruse v. United States Dep't of Health Human Servs., 49 F.3d 614, 617 (10th Cir. 1995). Under the procedure in effect at the time of Plaintiff's hearing before the ALJ, the examiner of the mental disability claim must complete a standard document, called a Psychiatric Review Technique (PRT) form, outlining the listing requirements and evaluating the claimant under the Part A and B criteria. 20 C.F.R. § 404.1520a and 416.920a (1997). At the ALJ hearing level, the regulations allow the ALJ to complete the PRT form with or without the assistance of a medical advisor and require the ALJ to append the form to his or her written decision. Id. The record must contain substantial competent evidence to support the conclusions reached on the PRT form, and if the ALJ prepares the form himself, he must "discuss in his opinion the evidence he considered in reaching the conclusions expressed on the form." Cruse, 49 F.3d at 617-18 (quoting Washington, 37 F.3d at 1442).
Since Plaintiff's hearing, 20 C.F.R. § 404.1520a and 416.920a have been revised and amended, effective August 21, 2000, so that the ALJ is no longer required to complete and append the PRT form to his or her decision. 65 Fed. Reg. 50746, 50757-58 (Aug. 21, 2000).
In the instant case, the ALJ prepared the PRT form and appended it to his decision. (Tr. 32-35) He found that while Plaintiff met the Section A criteria of Section 12.04, she had not met the Section B criteria. (Tr. 24-26, 32-35) Specifically, the ALJ found that "the evidence establishes that the claimant has . . . emotional impairments which are severe but which do not meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4." (Tr. 26,30) In analyzing the Section B criteria, the ALJ found:
In claimant's case, the degree of functional limitation she experiences as a result of her mental impairments is generally mild. The claimant has a slight limitation regarding daily activities. She is able to care for herself and her young son. She does have a moderate limitation in maintaining social functioning. The claimant seldom has deficiencies in concentration, persistence or pace. Althought she indicated that she has deteriorated in this area, she has been able to excel in college level courses. The evidence does not indicate any episodes of deterioration or decompensation in work or work-like settings. Based on the totality of the evidence, and granting to claimant any benefit of the doubt, the undersigned finds that claimant's mental impairment is severe in nature . . . [h]owever, the evidence indicates only a slight, possible restriction against close public or co-worker contact.
(Tr. 25)
Plaintiff disputes the ALJ's conclusion that she did not meet Listing 12.04 (Affective Disorder) and cites Clifton v. Chater, 79 F.3d 1007 (10th Cir. 1996), in support of her argument that the ALJ's conclusion was not sufficiently explained, and that the evidence was not directly associated with his finding that the impairments did not meet the severity requirements for the regulation's listings. In Clifton, the Tenth Circuit reversed the district court and remanded the case for additional proceedings when the ALJ made such a bare conclusion that it was effectively beyond meaningful judicial review. Clifton, 79 F.3d at 1009. However, as the court explained, its decision was based on the fact that "the ALJ did not discuss the evidence or his reasons for determining that appellant was not disabled at step three, or even identify the relevant Listing or Listings; he merely stated a summary conclusion that appellant's impairments did not meet or equal any Listed Impairment." Id. This is not the case here where the ALJ identified the relevant listings, linked his evaluation of the severity of Plaintiff's functional limitations with evidence in the record, and followed the appropriate procedure for documenting the PRT form ratings. These findings are far from the type of summary conclusion rejected in Clifton, and, therefore, are not beyond any meaningful judicial review.
In his decision, the ALJ found that Plaintiff's ability to care for herself and her young son, and her ability to excel in college level courses undermined her reported functional limitations. Furthermore, a PRT conducted by B. Diller, Ph.D., on November 26, 1996, appears to support the ALJ's Section B criteria findings as to Plaintiff's impairments. (Tr. 127-36) The Court has reviewed the record and determines that substantial evidence supports the ALJ's finding that Plaintiff's mental impairments do not meet or equal a listed impairment under Section 12.04.
F. Residual Functional Capacity Determination
Plaintiff next contends that the ALJ erred at step four of the sequential analysis by failing to link Plaintiff's residual functional capacity (RFC) determination with specific evidence in the record, failing to make specific findings regarding the physical and mental demands of Plaintiff's past relevant work, and failing to follow 20 C.F.R. § 404.1545, 416.945 and Soc. Sec. Ruling (SSR) 96-8p, 1996 WL 374184 (1996).
Step four, at which the ALJ found claimant not disabled, is comprised of three phases. "In the first phase, the ALJ must evaluate a claimant's physical and mental RFC, and in the second phase, he must determine the physical and mental demands of the claimant's past relevant work." Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996) (citation omitted). "In the final phase, the ALJ determines whether the claimant has the ability to meet the job demands found in phase two despite the mental and/or physical limitations found in phase one." Id.
A claimant bears the burden of proving that her medical impairments prevent her from performing work that she has performed in the past. Williams, 844 F.2d at 751 n. 2 (citing Yuckert, 482 U.S. at 146). However, in order to make the ultimate finding that a claimant is not disabled at step four, the ALJ is required by SSR 96-8p to make specific and detailed predicate findings concerning the claimant's residual functional capacity, the physical and mental demands of the claimant's past jobs, and how these demands mesh with the claimant's particular exertional and nonexertional limitations. See SSR 96-8p; see also Winfrey, 92 F.3d at 1023-25.
In arriving at an RFC, an ALJ must provide a "narrative discussion describing how the evidence supports" his or her conclusion. SSR 96-8p, 1996 WL 374184 at *7. The ALJ must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. Id. The ALJ must also explain how any material inconsistencies or ambiguities in the case record were considered and resolved. Id. The RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence. Id. The RFC assessment "must not be expressed initially in terms of the exertional categories of "sedentary [or] light;" rather, a function-by-function evaluation is necessary in order to arrive at an accurate RFC. Id. at *3. A failure to first make a function-by-function assessment of the claimant's limitations of restrictions could result in the adjudicator overlooking some of the claimant's limitations or restrictions. SSR 96-8p, 1996 WL 374184 at *4.
1. Linking the RFC determination with specific evidence in the record
Plaintiff specifically contends that the ALJ erred at step four by failing to adequately support the RFC determination by not linking it with specific evidence in the record. The Commissioner argues that the ALJ's decision does comply with the social security rulings because he provided a detailed discussion of Plaintiff's medical and non-medical evidence and Plaintiff's ability to perform sustained work activities on a regular and continuing basis.
In this case, the ALJ found that Plaintiff retains the residual functional capacity to:
[P]erform the exertional demands of light work, or work which requires maximum lifting of twenty pounds and frequent lifting of ten pounds; some light jobs are performed while standing, and those performed in the seated position often require the worker to operate hand or legal controls. The claimant's limitations include a position change option and restrictions against continuous or frequent/repetitive handling.
In making this determination, the undersigned has considered the opinions of the Kansas State Agency medical consultants. While their opinions were reasonable based on the evidence available at that time, additional evidence received into the record at the hearing level indicates that the claimant was limited to light exertional work. This is due in part to the claimant's deconditioned state resulting from years of non-work. The undersigned finds that the claimant has moderate limitations regarding the ability to work in coordination with or proximity to others without being distracted by them. In social interaction, the claimant has a moderate limitation regarding the ability to interact appropriately with the general public and to get along with co-workers without distracting them or exhibiting behavioral extremes.
(Tr. 28-29)
The ALJ states in his decision that he initially based his determination upon the physical and mental functional assessments performed by the State Agency's medical consultants, citing their reports (Exhibits 4-5E) in support, and then adjusted some of the findings in favor of Plaintiff based upon her deconditioned state. The Court, therefore, determines that the ALJ has adequately linked the RFC determination with specific evidence in the record.
2. Making specific findings regarding physical and mental demand of Plaintiff's past relevant work
Plaintiff also contends the ALJ failed in his duty to make specific findings regarding the physical and mental demands of Plaintiff's past relevant work. She argues that the only evidence the ALJ relied upon was the testimony of the vocational expert and there was no comparison between the actual requirements of Plaintiff's past relevant work and the functional limitations set forth in the ALJ's residual functional capacity determination. The Commissioner argues that the ALJ made a proper step four determination and sufficient evidence in the record supported his determination, including the work history section of Plaintiff's disability report, Plaintiff's testimony at the hearing, and a work history evaluation completed by the vocational expert.
At step four, a vocational expert (VE) may supply information to the ALJ about the demands of the claimant's past relevant work. Winfrey, 92 F.3d at 1025.
The VE's role in supplying vocational information at step four is much more limited than his role at step five, where he is called upon to give his expert opinion about the claimant's ability to perform work in the national economy. Therefore, while the ALJ may rely on information supplied by the VE at step four, the ALJ himself must make the required findings on the record, including his own evaluation of the claimant's ability to perform [her] past relevant work.Id.
Here, the ALJ refers to the vocational expert's Work History Evaluation and her testimony "indicating that given [Plaintiff's] particular residual functional capacity, [she] can return to the [sic] this type of work that she performed in the past." (Tr. 29) (emphasis added). Nothing indicates that the ALJ compared the actual requirements of Plaintiff's past relevant work with the functional limitations set forth in the residual functional capacity determination. Without determining the physical and mental demands of her past work, he generally concluded that "[plaintiff's] past work did not require exertion exceeding her physical RFC and did not require frequent or repetitive/continuous gross hand use or ongoing interactive conversation with other workers or the general public." (Tr. 29) The ALJ, therefore, erred by failing to make specific findings regarding the physical and mental demands of Plaintiff's past relevant work before comparing those demands with Plaintiff's particular exertional and nonexertional limitations.
3. Internal inconsistencies within ALJ's Decision
Plaintiff also argues that the ALJ's RFC determination is not consistent within his decision. She argues that the ALJ's RFC determination in the Evaluation of the Evidence section is materially different from the RFC stated in the Findings section of his decision. Specifically, she argues that the RFC determination in the Evaluation of the Evidence section contains a restriction on claimant's lifting to twenty pounds occasionally and ten pounds frequently whereas the findings section does not reiterate this restriction. She also argues that the restriction against "close public or co-worker contacts" in the Findings section is not included in the RFC determination in the Evaluation of the Evidence section. Plaintiff contends that these purported inconsistencies in the ALJ's RFC determination are material errors of law, or, at a minimum, would require a remand to clarify the material ambiguity in the ALJ's decision.
In the ALJ's evaluation of the Evidence section of his decision, he made the following RFC determination:
[Plaintiff] retains the residual functional capacity to perform the exertional demands of light work, or work which requires maximum lifting of twenty pounds and frequent lifting of ten pounds; some light jobs are performed while standing, and those performed in the seated position often require the worker to operate hand or leg controls ( 20 C.F.R. § 404.1567 and 416.967). [Plaintiff's] limitations include a position change option and restrictions against continuous or frequent/repetitive handling.
* * *
[Plaintiff] has moderate limitations regarding the ability to work in coordination with or proximity to others without being distracted by them. In social interaction, [Plaintiff] has a moderate limitation regarding the ability to interact appropriately with the general public and to get along with co-workers without distracting them or exhibiting behavioral extremes.
(Tr. 28-29)
The Findings section of the ALJ's decision states the following RFC determination:
"[Plaintiff] has a residual functional capacity for light work with limitations regarding position change option, limitations against continuous or frequent/repetitive handling and some restrictions against close public or co-worker contacts." (Tr. 30)
The Court determines that the ALJ's RFC determinations are not internally inconsistent so as to warrant a reversal or remand. First, the ALJ's maximum lifting of twenty pounds and frequent lifting of ten pounds restrictions are consistent with his later determination that Plaintiff has a RFC for "light work." The Social Security regulations provide that "[l]ight work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. § 404.1567 (b) and 416.967(b).
Next, the Court finds that the work restrictions against "close public or co-worker contacts" are included in both the Findings section and the Evaluation of the Evidence section.
The Court, therefore, concludes that the ALJ's RFC findings were consistent within his decision.
G. Carpal Tunnel Syndrome as a Severe Impairment
Plaintiff next contends that the ALJ erred at step two of the sequential evaluation process by failing to find plaintiff's carpal tunnel syndrome to be a severe impairment. The Commissioner responds to this contention by stating, "[a]lthough the ALJ might not have been completely accurate in stating that this was not a determinable impairment, the medical record does not indicate that it was a significant continuing problem, as it is not mentioned as such in other reports." (Br. of Comm'r, p. 4)
To be found disabled, an individual must have a medically determinable "severe" physical or mental impairment or combination of impairments 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. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1509. As step two of the sequential evaluation process, claimant bears the burden of establishing he has a severe impairment or combination of impairments. 42 U.S.C. § 423(d)(5)(A). An impairment or combination of impairments is considered "severe" if it significantly limits an individual's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(c); 404.1521 and 4165.920(c), 416.921; Yuckert, 482 U.S. at 141; SSR 96-3P. Basic work activities include: physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or hearing; capacities for seeing, hearing, and speaking; understanding, carrying out, and remembering simple instructions; using judgment; responding appropriately to supervision, co-workers and usual work situations; and dealing with changes in routine work setting. 20 C.F.R. § 404.1521(b)(1)-(6); 416.921(b)(1)-(6).
The Tenth Circuit has determined that for a plaintiff to be considered to have a "severe" impairment, she must make only a "de minimis" showing. Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997). Plaintiff need only show that an impairment would have more than a minimal effect on her ability to do basic work activities. Williams, 844 F.2d at 751. However, she must show more than the mere presence of a condition or ailment. Id. (citing Yuckert, 482 U.S. at 153). If the medical severity is so slight that it could not interfere with or have a serious impact on plaintiff's ability to do basic work activities, an impairment could not prevent plaintiff from engaging in substantial work activity and will not be considered severe. Hinkle, 132 F.3d at 1352.
In this case, the ALJ found that "[Plaintiff's] complaints of carpal tunnel are not medically determinable." (Tr. 22) The Court determines that substantial evidence in the record does not support the ALJ's determination that Plaintiff's carpal tunnel syndrome is not a "severe impairment" at step two. The record indicates that Plaintiff was referred to a physical therapist on October 18, 1993 by Dr. Baughmann "for tennis elbow, as well as, some carpal tunnel concerns." (Tr. 203) A nerve conduction test was performed on November 1993 and he found no evidence of carpal tunnel syndrome, although he did note "some nerve concerns to the right elbow." (Tr. 202) The physical therapist noted that Plaintiff performed all exercises and modality therapy, but continued to experience pain throughout the treatment. Plaintiff was able to increase her overall strength, but failed to increase the strength in her right hand. Some of her range of motion increased, but her right elbow extension continued to have a ten-degree lag. She continued to experience pain in her activities of daily living. (Tr. 203) Further, the therapist found right elbow pain upon palpation. (Tr. 203-4)
On August 27, 1996, Dr. Murati found that Plaintiff's "sensory was decreased in the bilateral thumbs and also decreased to pin prick along the S1 dermatome." (Tr. 239) On a subsequent follow-up a month later, she again complained of numbness in her fingers. (Tr. 236) On October 8, and November 5, 1996, Dr. Murati notes his impressions of right carpal tunnel syndrome and left ulnar cubital syndrome. (Tr. 232 and 234) He recommended that Plaintiff begin physical therapy, including iontophoresis to the left ulnar cubital tunnel, phonophoresis to the left pronator group and splinting for the right carpal tunnel syndrome to be worn at all times. (Tr. 240)
In Plaintiff's visit to Dr. Trotter at the behest of Disability Determination Services on October 1, 1996, Dr. Trotter also found that it would be unlikely that she could handle small objects without complaints of "some kind of arm pain." (Tr. 241)
Based upon the above, the Court determines that the record does not contain substantial evidence to support the ALJ's finding that Plaintiff's complaints of carpal tunnel are not severe impairments. The matter shall be remanded back to the Commissioner for further proceedings. Upon remand, the Commissioner shall include Plaintiff's carpal tunnel syndrome in his consideration of her severe impairments.
H. Hypothetical Presented to the Vocational Expert
Plaintiff's final point of error is that the ALJ erred in his hypothetical presented to the vocational expert by not including limitations related to her carpal tunnel syndrome. The Commissioner's response is that because she failed to fulfill her burden of making a prima facie showing that she could not return to her past relevant work, the burden never shifted to the Commissioner and, thus, the vocational testimony was not necessary.
As the Court finds that Plaintiff has established that her carpal tunnel syndrome is a severe impairment at step two and is remanding the case back to the Commissioner for rehearing, Plaintiff's final point of error relating to the hypothetical presented to the vocational expert is considered moot.
VII. Conclusion
Based upon the reasons set forth above, the Court remands this action to the Commissioner to conduct further proceedings. On remand, the Commissioner shall consider the additional evidence submitted by Plaintiff to the Appeals Council, in particular the evidence from Plaintiff's treating physicians. The Commissioner shall also re-evaluate Plaintiff's credibility, in accordance with the Luna and Kepler factors, concerning her claims of disabling pain and her work restrictions. The Commissioner shall also make specific findings regarding the physical and mental demands of plaintiff's past relevant work and compare how those demands mesh with Plaintiff's particular exertional and nonexertional limitations. Finally, the Commissioner, during the remand proceedings, shall include Plaintiff's carpal tunnel syndrome in his consideration of her severe impairments.
IT IS THEREFORE ORDERED that the decision of the Commissioner denying Plaintiff benefits is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings consistent with this opinion. Such decision will dispose of this case, including Plaintiff's Complaint (doc. 1), which has been considered a petition for review.
IT IS FURTHER ORDERED that Jo Anne B. Barnhart is substituted for William B. Halter as the party defendant in this suit, and the Clerk shall change the docket to reflect the caption as shown on this Memorandum and Order.