Opinion
A-99-CA-808 AA
May 10, 2001
ORDER
Before the Court is Plaintiff's Original Complaint (Clerk's Doc. No. 1), Plaintiff's Brief (Clerk's Doc. No. 12), and Defendant's Brief in Support of Commissioner's Decision (Clerk's Doc. No. 15). The above cause of action was referred to the undersigned Magistrate Judge for resolution upon consent of the parties pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and Rule 1(i) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas.
I. PROCEDURAL HISTORY
Plaintiff, Bill Wright, applied for Social Security Disability Benefits under Title II of the Social Security Act in October of 1996 alleging disability from back pain, arthritis, and post-traumatic stress disorder as of January 31, 1986. His date last insured for purposes of Title II was December 31, 1990. His application was denied. He requested reconsideration of his claim which was denied. Following a hearing on November 3, 1997, the Administrative Law Judge, ("ALJ"), issued a decision denying him benefits. The ALJ found that Wright was not disabled as defined by the Social Security Act because his impairment was did not significant limit his ability to perform basic work related activities so as to qualify for insured status on the date of his last employment. Wright appealed the ALJ's decision to the Appeals Council which denied his request for a review of the decision. Wright's cause of action is properly before this Court for a review of an administrative determination.
II. ISSUE PRESENTED
1. Whether there is substantial evidence to support the final decision of the Commissioner that Wright was not disabled.
III. STATEMENT OF THE CASE
Wright was a 56 year old male as of the date he was last insured with a high school education and additional vocational training received in the military and through the Veterans Administration. Wright was a military pilot until 1972, installed office equipment from that time until 1980, and then worked in sales in the oil industry until 1985. Wright then received vocational training through the Veteran's Administration and studied wood working for two years. The date Wright was last insured for the purposes of the Social Security Act on December 31, 1990. Relying on the Administration's Explanation of Determination, Wright states in his brief that his date of last insured is December 31, 1991. Tr. 135. This is in conflict with the balance of the record as a whole. Wright's earnings compensation report shows the last date of insured as December 1990. Tr. 143. The ALJ's final decision notes the date of last insured as December 31, 1990. Tr. 77. At the administrative hearing, the ALJ commented that Wright's date of last insured was December 31, 1990, without comment from Wright's attorney. Tr. 85. Finally, in Wright's brief, he states he was 56 on the date he last insured, if the date of last insured were 1991, Wright would have been 57. Accordingly, the one document that supports the date being 1991, is in conflict with the majority of the record and therefore appears to be a misprint. This Court holds the date Wright was last insured was December 31, 1990.
Wright's date of birth is October 1, 1935. Tr. 86.
A. Plaintiff's Testimony
At the administrative hearing, Wright testified that he was born on October 1, 1935 and had a high school diploma. Tr. 86. In addition, he received specialized training in the military and served as a military pilot from 1972 through 1977. Tr. 86-87. After leaving the service he went into business setting up office equipment under contract with Business First. He did this from 1977 through 1980 or 1981. Id. This business relationship ended when his partner and accountant were prosecuted for fraudulent bookkeeping. He then went into business selling buck oil to large companies until 1984 or 1985. Id. This endeavor involved heavy lifting and after he was no longer to maintain the physical demands of the business, he received vocational training in woodworking from the Veterans Administration. Id. This also involved heavy physical demands and he had to quit after two years. He apparently has not worked since this date, because the date he was last insured under the Social Security Act is December 31, 1990. Id.; 77; 142-143.
His main health problems are his knees, back, and shoulder. He has had several surgeries on both knees. He has had back pain ever since he was in a plane accident and he is unable to sit or stand for long periods of time. It now hurts him continually and he goes to a clinic in San Antonio about every other week where he receives injections for pain management. Tr. 88-89. Surgery has not yet been recommended on his back. Id. Mr. Wright is married and his wife does most of the cooking, house cleaning, and grocery shopping. Tr. 90-91. He takes out the trash and does most of the driving, although he has to make stops to rest and walk around. Tr. 91-92. He can walk for about a block and a half to two blocks without having to stop. Tr. 92-93. He can sit for about forty-five minutes before he has to change positions. Id. In 1990, he was taking about six regular Tylenol and four Tylenol 3 a day for pain. Id. He now takes 500 mg of Tylenol three to four times a day and Tylenol 3 at night. Tr. 93. He can lift about fifteen pounds on a occasional basis. Tr. 94. On a scale of one to ten he characterized his pain as an eight without medication and a five with the medication. Tr. 96. Three, four, or five times a day he would have to lie down on the floor for about a half an hour to an hour because his knees would hurt. Tr. 97. In total, he sleeps about eight or nine hours a night, although it is intermittent. Tr. 98. He currently wakes in the middle of the night and is not able to return to sleep because he had nightmares about the plane crash he was in as a pilot with Air America in the Vietnam War. He dreams he sees blood and people with missing limbs. Id. He is currently receiving treatment for post-traumatic stress disorder. Tr. 98-101. He has trouble being around crowds because they make him uncomfortable. He has had occasional flashbacks, although not very often. He testified that with the medications he is on he might see something on television that make him nervous in the back of his mind. He is unable to watch movies about war and is unable to be around "Oriental" people because he doesn't trust them. Tr. 100. He has no difficulty bathing, shaving, or dressing. Tr. 102. He was on 60% VA disability and three years ago received a 100% disability rating from the VA. Tr. 103.
B. Medical Expert Testimony
Dr. Homer R. Goehrs testified as the medical expert at the administrative hearing. Dr. Goehrs is a board certified internist specializing in internal medicine and rheumatology. Tr. 104. After reviewing Mr. Wright's medical records, Dr. Goehrs testified that Wright has several primary diagnoses. First, Wright suffers from degenerative arthritis of the knee. In 1992, Wright had an arthroscipic examination which shows three to four chondromalacia (the patella femoral articulation between the kneecap and the thigh bone) as well as in the medial compartment; and, grade two to three in the lateral compartment between the thigh bone and the shin bone. He concluded that Wright "seems to meet the criteria under 1.03(a), arthritis of a major weight bearing joint by the arthroscopic examination as well as chronic pain." Tr. 104. Dr. Goehrs noted that x-rays contained in the medical records showed moderate dry compartment osteoarthritic changes with chrondomalacia changes and anterior and posterior meniscal tears, and were consistent with the knee's wear and tear and degenerative arthritis. Tr. 105. Dr. Goehrs opined that with these changes, one would expect Wright to have chronic pain and a limited ability to stand or walk. Id.
Importantly, Dr. Goehrs noted that the medical records indicate Wright's condition reached this level of severity in August of 1992. When specifically asked by the ALJ, Dr. Goehrs testified that the medical records do not indicate this level of severity before 1992. Tr. 105-106.
Dr. Goehrs also testified tat Wright was described as having right L4 and L5 radiculopathy and a history of low back pain. He had a myleogram and a CT scan in January of 1997 which showed no extra dural defect. Tr. 109. The CT scan showed some narrowing of the neural foramina bilaterally at L5 S1. Id. Dr. Goehrs testified that the back pain is "rather questionable." Tr. 110. He notes there is no indication in the record supporting Wright's subjective complaint of back pain before a neurosurgeon's note in the radiculopathy in October of 1996. Id. Wright is also diagnosed with secondary idiopathic (which means that no cause is known) hypothyroidism and hypogonadism which are under treatment and are not impairments. Tr. 109.
Finally, Dr. Goehrs noted no specific mention of post-traumatic stress disorder. Tr. 110. He did note that Wright attended group psychiatric and psychological session in October of 1996 through January of 1997. Tr. 110. In October of 1991 he attended a couple's session discussing marital conflict but there was no specific mention of post-traumatic stress disorder. Tr. 111. Dr. Goehris noted that in July of 1991 a progress note indicates Wright obtained counseling for marital problems in addition to "PTSD." Id. The same progress notes indicate decreased sleep, intense memories of Vietnam and depression. Tr. 111-112. The records do not contain a specific diagnosis or treatment plan for post-traumatic stress disorder. Finally, Wright was prescribed Pamelar, a psychotropic drug, in June of 1991. Tr. 112. After further reviewing the records via cross-examination of Wright's attorney, Dr. Goehrs again declined to extend his previous opinion that Wright did not suffer a substantial impairment prior to 1992. Tr. 114.
C. Vocational Expert Testimony
Finally, Donna Eager provided vocational expert testimony at the administrative hearing. Ms. Eager testified that Wright had performed past work as both semi-skilled and skilled levels ranging from sedentary to medium in exertional requirements. Tr. 116. Ms. Eager testified that there were occupations within the economy for persons with the same age and education, and capabilities as Wright which use the same or similar skills as his former sedentary work as an office manager. Tr. 116-118. For example, he could work as a billing clerk or a records clerk. Tr. 118. He could also work as an appointments clerk. Tr. 119. Both of these jobs exist in the economy nationally and locally in significant numbers. Tr. 118-119. On cross-examination, Ms. Eager testified that neither job could be maintained with taking three to four one hour rest breaks in a working day. Tr. 120. These jobs would also involve dealings with the public and it would also be possible that Wright would have to interact with "Oriental" people in both of those categories of jobs. Tr. 120-121.
D. Medical Evidence
Mr. Wright's medical records are substantial. However, there is a paucity of records for the relevant time period. To be sure, his knee, back, and mental impairments have degenerated over time. Indeed, if Wright were still insured under the Act and his claim were reviewed today, the Commissioner's analysis and ultimate decision might be different. However, the date Wright was last insured pursuant to the Social Security Act was December 31, 1990. Accordingly, the proper scope of review is whether, at that time, he possessed a disabling condition. Ivy. Sullivan, 898 F.2d 1045, 1048 (5th Cir. 1990). Evidence showing degeneration of a condition after insured status has expired is not relevant to the analysis. See Torres v. Shalala, 48 F.3d 887, 894 (5th Cir. 1995). Accordingly, the Court will address the level of impairment as supported by the record in 1990 and the remaining records only as they are relevant to Wright's condition at that time.
In November of 1986, military records indicate a long history of left knee pain for which Tylenol was prescribed. Tr. 387. X-rays performed in 1977 revealed mild spurring of both tibial emminences, but the remainder of the soft tissue and other osseous structures were normal. Tr. 396. The same x-ray revealed the lumbosacral vertebral bodies were well aligned with normal appearing intervertebral disc spaces. Tr. 396. A November 1986 record refers to a long history of knee pain. Tr. 387. Arthroscopic surgery was performed on the left knee in April 1987 to repair the anterior horn of the left lateral meniscus. Tr. 382. Treatment notes indicate Air Force retirement in 1977 and a clinical impression of good general health. Tr. 380-381. In July, 1989, diagnoses included gout, right tardy ulnar nerve palsy, and right shoulder capsulitis. Tr. 374-375. History of hypertension and hyperlipidemia are also noted. Id. On July 13, 1989, Wright underwent right ulnar nerve transposition. Tr. 370. A follow-up on July 28, 1989 notes marked improvement in his ulnar sensation. Tr. 368. Wright injured his right shoulder in an automobile accident on August 18, 1989. Tr. 368. The doctor prescribed mobilization exercises and a home program with heat and ultrasonic treatments two or three times a week for six weeks. Tr. 367. There are no further notes in the relevant time period. The most recent record to the date last insured (May and October of 1990) notes treatment for nasal congestion, chronic sinusitis, and an impacted molar. Tr. 361-362.
IV. ANALYSIS A. Standard of Review
In Social Security disability appeals, the limited role of the Court is to determine whether the Commissioner applied the proper legal standards, and whether the Commissioner's decision is supported by substantial evidence. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. denied 514 U.S. 1120, 115 S.Ct. 1984 (1995). Substantial evidence is evidence which amounts to more than a scintilla but which is less than a preponderance; it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Ripley, 67 F.3d at 555; Greenspan, 38 F.3d at 236. A finding of "no substantial evidence" will not be found unless "there is a conspicuous absence of credible choices." Harrell v. Brown, 862 F.2d 471, 475 (5th Cir. 1988).
When reviewing a decision on disability, the Fifth Circuit has set the following test:
To determine whether substantial evidence of disability exists, four elements of proof must be weighed: (1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) claimant's subjective evidence of pain and disability; and (4) claimant's age, education, and work history.
Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991).
The Commissioner is the fact finder. A determination as to whether there is substantial evidence in the entire record to support the Commissioner's fact findings does not involve re-weighing the evidence, or trying the issues de novo. Ripley, 67 F.3d at 555. This Court is precluded from substituting its own judgment for the Commissioner's. Neal v. Bowen, 829 F.2d 528, 530 (5th Cir. 1987). The Commissioner, not the courts, has the duty to weigh the evidence, resolve material conflicts in the evidence, and make credibility choices. Carrier v. Sullivan, 944 F.2d 243, 247 (5th Cir. 1991). The court's role is to "scrutinize the record in its entirety to determine whether substantial evidence supports" the Commissioner's findings. Randall v. Sullivan, 956 F.2d 105, 109 (5th Cir. 1992) (citing Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983)). If supported by substantial evidence, the Commissioner's findings are deemed conclusive, and the court must accept them. See Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1422 (1971). In sum, "the role of the courts in this quintessentially administrative process is extremely narrow and the Commissioner's decision is entitled to great deference." Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
Those claiming disability insurance benefits under the Social Security Act have the burden of proving their disability. Leggett, 67 F.3d at 563; DeMandre v. Califano, 591 F.2d 1088 (5th Cir.), cert. denied, 100 S.Ct. 428 (1979). This is a multi-step process. First and foremost, the plaintiff must prove that he suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve (12) months. See 42 U.S.C.A. § 423(d)(1)(A). If this test is not met, the inquiry ends.
Physical or mental impairment means "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable, clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).
Once a plaintiff shows that he suffers from an impairment, it must be determined whether the impairment prevents employment. In determining whether a claimant is unable to perform any gainful employment based on an impairment — and is therefore disabled — the Commissioner utilizes a five-step sequential procedure set forth in 20 C.F.R. § 404.1520(b)-(f) and § 416.920(b)-(f):
1. An individual who is working and engaging in substantial gainful activity will not be found disabled regardless of the medical findings. § 404.1520(b) and § 416.920(b).
2. An individual who does not have a "severe impairment" will not be found to be disabled. § 404.1520(c) and § 416.920(c).
3. An individual who meets or equals a listed impairment in Appendix 1 of the regulations will be considered disabled without consideration of vocational factors. § 404.1520(d) and § 416.920(d).
4. If an individual is capable of performing the work he has done in the past, a finding of "not disabled" must be made. § 404.1520(e) and § 416.920(e).
5. If an individual's impairment precludes him from performing his past work, other factors including age, education, past work experience, and residual functional capacity must be considered to determine if other work can be performed. § 404.1520(f) and § 416.920(f).
Appendix 1 refers to 20 C.F.R. Pt. 404, Subpt. P. Appendix 1.
Leggett, 67 F.3d at 563-64. A finding that a claimant is not disabled at any point in the five-step process is generally conclusive and terminates the Commissioner's analysis. Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992).
The claimant bears the burden of proof on the first four steps. Greenspan, 38 F.3d at 236. If she can show she is not capable of performing her past relevant work, the burden shifts to the Commissioner at the fifth step to show that there are jobs existing in the national economy which she can perform, despite her impairments, given the her age, education, and work experience. Bowen v. Yuckert, 482 U.S. 137, 142 (1987); 20 C.F.R. § 404.1520(f). At this final step, the Commissioner must show the claimant has the residual functional capacity ("RFC") to do some kind of work. Fraga v. Bowen, 810 F.2d 1296, 1303-04 (5th Cir. 1987). If the Commissioner adequately points to potential alternative work, the burden shifts back to the claimant to establish she cannot perform the alternative work. Id.
B. Analysis
A claimant is eligible for benefits only if the onset of the qualifying medical impairment [or combination of impairments] began on or before the date the claimant was last insured. See Ivy, 898 F.2d at 1048. "Claimants bear the burden of establishing a disabling condition before the expiration of their insured status." Id. (citing Milam v. Bowen, 782 F.2d 1284 (5th Cir. 1986)). Factors relevant to the determination of the date of disability include the individual's declaration of the date of when the disability began, work history and available medical history. See id. (citing SSR. 83-20). The claimant's stated onset date of disability is to be used as the established date when it is consistent with available medical evidence and may be rejected only if reasons are articulated and the reasons given are supported by substantial evidence. See Ivy, 898 F.2d at 1048. If a claimant becomes disabled after he has lost insured status, his claim must be denied despite his disability. See Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir. 1979) (per curiam), cert. denied, 414 U.S. 952 (1979).
1. Physical Impairment
As the ALJ noted, there is limited medical evidence from the relevant time period. The ALJ considered the evidence in the record as well as Wright's subjective complaints. Wright has a history of knee problems. X-rays performed in 1977 revealed mild spurring of both tibial emminences, but the remainder of the soft tissue and other osseous structures were normal. Tr. 396.
A November 1986 record refers to a long history of knee pain. Tr. 387. Arthroscopic surgery was performed on the left knee in April 1987 to repair the anterior horn of the left lateral meniscus. Tr. 382. The medical expert testified that Wright had degenerative arthritis of the knee that had been troublesome for years. The condition appeared to qualify as "severe." Tr. 104. The expert testified that the condition would meet this level as far back as 1992. Tr. 106. When explicitly questioned, the expert testified that Wright's condition would not have met a listing prior to 1992. Tr. 114. The expert explained that there was no evidence that he was limited in his walking or standing before 1992. Tr. 114-115. The expert elaborated that many people undergo arthoscopies and walk normally afterward. Tr. 115. The evidence documenting Wright's left knee condition, prior to December 31, 1990, does not establish sufficient functional limitations as of December 31, 1990.
In July of 1989, Wright underwent a right ulnar nerve exploration, cubital tunnel, with anterior transposition of the ulnar nerve. Tr. 370-371. A July 1989 treatment noted diagnosed Wright with tardy ulnar nerve palsy, right, and impingement syndrome, right shoulder. Tr. 370. A transposition of the ulnar nerve, right elbow, was performed in July of 1993. Tr. 306. A 1996 treatment note indicated that Wright had undergone right ulnar nerve transposition "five or six years ago" and that the symptoms had progressively worsened. Tr. 244. Upon questioning from the ALJ, Dr. Goehrs confirmed that an October 1996 record indicated that Wright's condition had gotten worse over the previous twelve months. Tr. 108; 244. Contratry to Wright's suggestion, the medical expert never testified that Wright's right ulnar nerve transplant because of symptoms was a disabling condition. Tr. 106. Dr. Goehrs testified that Wright's back pain was questionable and went back to approximately October of 1996. Tr. 110. Wright himself admits to being better in 1990 than he is today. Tr. 93.
That the VA has now determined that Wright is 100% disabled is not dispositive. The ALJ was correct in not giving the VA's conclusion controlling weight. A disability determination by the Veterans Administration is non-binding on the Secretary because the criteria applied by the two agencies vary. See 20 C.F.R. § 404.1504. Although a VA rating of 100% disability should be closely scrutinized by the ALJ, Rodriguez v. Schweiker, 640 F.2d 682, 686 (5th Cir. 1981), Wright's rating was elevated to 100% around 1994, four years after his date of last insured. Furthermore, the record does not reveal when Wright first received a disability rating of 60%. The Court therefore finds that substantial evidence supports the ALJ's decision that, in 1990, Wright did not suffer from a severe impairment that prevents employment.
2. Psychological Impairment
A July 1991 notation references PTSD. Tr. 356. An August 1991 notation references family stress and "unresolved Vietnam experiences." Tr. 353. Pamelar, a psychotropic medication, was prescribed in June 1991. Tr. 112; 360. The records indicate noted progress. Tr. 350-354. There is no evidence of treatment for mental impairments prior to the date of last insured. A lack of treatment is a factor that may properly be considered as an indication of non-disability. Villa v. Sullivan, 895 F.2d 109, 1024 (5th Cir. 1990). There is no evidence that Wright suffered from a mental impairment that resulted in functional limitations as of the date last insured. Indeed, there is no retrospective analysis. Neither has Wright shown that there was any failure to develop his medical record that resulted in prejudice.
In order to show prejudice Wright would have to show that "could hand would have adduced evidence that might have altered the result." Brock v. Chater, 94 F.3d 726, 728 (5th Cir. 1996).
In summary, although, as the ALJ noted, Wright's testimony and supporting medical records, indicate that his conditions worsened and deteriorated, such evidence is not relevant to the judicial inquiry here — whether Wright suffers a substantial impairment as of the date last insured. See Vaughn v. Shalala, 58 F.3d 129, 131 (5th Cir. 1995). The Court therefore finds that substantial evidence supports the ALJ's decision that, in 1990, Wright did not suffer from a disabling mental impairment.
V. CONCLUSION
For the reasons set forth above, the Court AFFIRMS the Commissioner's decision that Wright is not entitled to benefits because he is not disabled as defined in the Social Security Act at the time of he was last insured.