Opinion
No. 1:03-CV-649.
February 4, 2005
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
In this action, plaintiff seeks judicial review of the Commissioner of Social Security Administration's ("SSA") decision denying her application for Disability Insurance Benefits ("DIB"). This case is referred to the undersigned United States Magistrate Judge for review, hearing if necessary, and submission of a report with recommended findings of fact and conclusions of law. See 28 U.S.C. § 636(B)(1)(B) (2001) and Loc. R. CV-72 App. B, R. 1(H) for the Assignment of Duties to United States Magistrate Judges, and Beaumont General Order 03-02.
The DIB program provides income to individuals who are forced into involuntary, premature retirement, provided they are both insured and disabled. See 42 U.S.C. § 423 (a); see also Mathews v. Castro, 429 U.S. 181, 186 (1976). DIB is authorized by Title II of the Social Security Act, and is funded by Social Security taxes. See Social Security Administration, Social Security Handbook, § 2100 (14th ed. 2001).
I. JUDICIAL REVIEW
Title 42 U.S.C. § 405 authorizes United States district courts to conduct judicial review of the Commissioner's final decisions regarding applications for social security benefits. 42 U.S.C. § 405 (2004). Judicial review is limited. The court's role is to determine whether (a) the Commissioner applied proper legal standards and (b) the decision is supported by substantial evidence. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995);Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992). If proper principles of law were applied, and if the Commissioner's decision is supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971) (quotingConsolidated Edison Co., 305 U.S. 206, 230, 59 S. Ct. at 217 (1938)); see also 42 U.S.C. § 405(g).By local orders, complaints seeking judicial review of administrative decisions denying applications for Social Security, benefits are treated as appeals. The party seeking review is required to specify points of alleged error, and to submit a brief containing legal arguments directed to those points. The Commissioner is ordered to respond. The court limits its judicial review to points argued in the briefs. See Order Directing Filing of Briefs (Docket No. 10) and Notice to Parties in Social Security Appeal Cases (Docket No. 9).
II. PROCEEDINGS
Plaintiff, Rosa L. Zeno, is a 56-year-old female who applied for Disability Insurance Benefits on March 5, 2002. Tr. 57. Plaintiff claimed onset of disability as of February 24, 2001 (Tr. 56), due to (1) "fluid" in her knees, (2) pain caused by arthritis in her knees, (3) high blood pressure, (4) migraine headaches, (5) sinusitis, and (6) "bad nerves." Tr. 76. Her claim was denied initially and upon reconsideration, whereupon plaintiff requested a hearing before an administrative law judge ("ALJ"). Tr. 43.ALJ Larry C. Marcy conducted an evidentiary hearing on March 13, 2003, at which plaintiff, represented by counsel, appeared and testified. In addition, ALJ Marcy received testimony of a vocational expert ("VE"), Margaret Couch. The remaining evidence consisted of written treatment notes and reports of various emergency room and clinic treating physicians and also Walter Buell, M.D., a consulting physician employed by the State Disability Determination Services.
Vocational Experts are utilized by the ALJ to "assess whether jobs exist for a person with the claimant's precise abilities." Gilliam v. Califano, 620 F.2d 691 (8th Cir. 1980). The VE's testimony must: (1) assess the effect of any limitation on the range of work at issue; (2) advise whether the impaired person's residual functional capacity permits him or her to perform substantial numbers of occupations within the range of work at issue; and, (3) identify jobs if they exist and provide a statement of the incidence of such jobs in the region in which the person lives. Ellison v. Sullivan, 921 F.2d 816 (8th Cir. 1990).
"A medical consultant is a member of a team that makes disability determinations in a State agency, as explained in § 404.1615, or for [the Social Security Administration] when [the Administration makes] disability determinations [itself]." 20 C.F.R. § 404.1616(a) (2003). A medical consultant must be "a licensed physician (medical or osteopathic), a licensed optometrist, a licensed podiatrist, or a qualified speech-language pathologist. . . . [and] must meet any appropriate qualifications for his or her specialty as explained in § 404.1513(a)." 20 C.F.R. § 404.1616(b) (2003).
On April 14, 2003, ALJ Marcy issued a decision denying plaintiff's application. Tr. 22. Plaintiff requested the Appeals Council to reconsider. When the Appeals Council denied plaintiff's request on July 25, 2003 (Tr. 7), ALJ Marcy's decision became the Commissioner's final decision. Plaintiff timely initiated suit in the federal court on August 29, 2003.
III. ADMINISTRATIVE DECISION
A. Sequential Evaluation
Regulations require a five-step sequential analysis for initial disability determinations. If a claimant is found not disabled at any step, remaining steps are not considered. 20 C.F.R. § 404.1520 (2004). The burden of proof is on a claimant at every stage, except for the initial inquiry at Step 5. Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002); Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987). The five-step sequential analysis for determining applications for benefits based on disability is approved by courts. See Bowen v. Yuckert, 482 U.S. 137, 153, 107 S. Ct. 2287, 2297, 96 L.Ed.2d 119 (1987) (citing Heckler v. Campbell, 461 U.S. 458, 461, 103 S.Ct. 1952, 1954, 76 L.Ed.2d 66 (1983)) (The use of the sequential evaluation process "contribute[s] to the uniformity and efficiency of disability determinations").
The five steps are as follows:
1. The Commissioner ascertains whether the applicant is currently engaging in substantial gainful activity. (If so, a finding of non-disability is entered and the inquiry ends.)
2. The Commissioner determines if the applicant's impairment or combination of impairments is severe, that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities. (If not, the inquiry ends and a finding of non-disability is entered.)
3. The Commissioner determines whether the severe impairment equals or exceeds those in the Listing of Impairments, 20 C.F.R. Pt. 404, Subpt. P, Appendix 1 (2004) ("the Listings"). (If so, disability is presumed and benefits are awarded.)
4. The Commissioner determines whether the impairment prevents the individual from engaging in his regular previous employment. (If so, a prima facie case of disability is established and the burden of going forward (to the fifth step) shifts to the Commissioner. See Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987).
5. The Commissioner determines whether other work exists in the national economy which the applicant can perform. (If the Commissioner establishes that an applicant can perform alternative employment, the burden shifts back to the applicant to show he cannot perform the alternative labor. See id.;Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986); 20 C.F.R. § 404.1520(a)-(f) (2004)).
B. Decision
ALJ Marcy proceeded through all five steps in order to reach a decision. Ultimately, he found that notwithstanding severe impairments that prevent plaintiff from performing her past relevant work, "[t]he claimant has the residual functional capacity to perform a range of light work." Tr. 22, Finding 7. Based on VE Couch's testimony, he further found that "[t]here are a significant number of jobs in the national economy that [plaintiff] could perform." Tr. 22, Finding 3. Specifically, ALJ Marcy found that plaintiff can work as an usher, a hospital escort, or a parking lot signaler. Tr. 22, Finding 12. Based on these findings, ALJ Marcy concluded that plaintiff "was not under a `disability,' as defined in the Social Security Act, at any time through the date of the decision." Tr. 22, Finding 14 (citing 20 C.F.R. §§ 404.1520(e) and 416.920(f). Because he found that plaintiff is not under a disability as defined in the Social Security Act, and is able to perform jobs in the national economy, ALJ Marcy denied plaintiff's DIB application. Tr. 22.
C. Critical Findings
The critical findings for this appeal are ALJ Marcy's Step Two findings regarding the nature and extent of plaintiff's impairments, and his Step Five finding regarding plaintiff's residual functional capacity. Plaintiff contends that ALJ Marcy impermissibly ignored certain impairments at Step Two, and violated or misapplied applicable law when determining residual functional capacity at Step Five.
IV. POINTS OF ERROR
Plaintiff asserts seven points of error that are stated verbatim in the note. After considering these points as actually argued in plaintiff's brief, they are re-phrased, reordered, and combined for analytical convenience as follows:
Plaintiff's points of error:
The Commissioner failed to apply proper principles of law because:
1. The ALJ failed to properly perform a function by function assessment of the plaintiff's Residual Functional Capacity by failing to discuss all of the plaintiff's exertional and non-exertional limitations in accordance to 20 C.F.R. §§ 404.1545, 416.945; and SSR 96-8p.
2. The ALJ improperly determined the plaintiff's exertional work level prior to performing the function by function assessment of the plaintiff's Residual Functional Capacity in accordance with 20 C.F.R. §§ 404.1545, 416.945; and SSR 96-8p.
3. The ALJ failed to set out whether the plaintiff could perform the exertional and non-exertional demands of light work on a regular and continuing basis.
4. The ALJ failed to consider all of plaintiff's impairments.
5. The ALJ failed to consider all of plaintiff's impairments in combination.
The Commissioner's decision is not supported by substantial evidence because:
6. The ALJ failed to properly evaluate the plaintiff's subjective complaints of pain or other symptoms according to 20 C.F.R. § 404.1529.
7. The ALJ ignored the medical evidence regarding the plaintiff's knees and classified the plaintiff at the wrong exertional category.
Pl.'s Br. at 1.
1. The Commissioner failed to apply proper principles of law by failing to consider all of plaintiff's impairments;
2. The Commissioner failed to apply proper principles of law by ignoring, violating or misapplying regulations, rulings and governing case law that direct specific procedures for making residual functional capacity determinations; and
3. The Commissioner's residual functional capacity determination is not supported by substantial evidence because it ignores relevant evidence and conflicts with ALJ Marcy's Step Four finding that plaintiff cannot perform past relevant work.
Plaintiff's arguments, and the Commissioner's responses, are discussed separately in the succeeding sections.
V. CONSIDERING IMPAIRMENTS
At Step Two, ALJ Marcy found that plaintiff has multiple "severe impairments," including migraine headaches, arthritis of the knees and sinus problems. Tr. 18. Notably, other alleged impairments, viz., high blood pressure and "bad nerves" were not included.
A. Competing Arguments
Plaintiff argues that ALJ Marcy neglected his legal duty to consider all of plaintiff's potentially disabling impairments, singly and in combination. Without pointing to anything specific, plaintiff's brief cites blocks of the medical record which, according to plaintiff, reflect diagnoses of depression and hypertension. Pl.'s Br. at 14-15. Plaintiff also asserts that the medical record shows that she feels fatigued and "sleeps a lot during the day," and that "these symptoms are similar to those typically found in persons with depression." Pl.'s Br. at 16. Plaintiff contends that Regulation 20 C.F.R. § 404.1523 required ALJ Marcy to consider the medical evidence regarding plaintiff's hypertension and depression when finding which of her impairments were "severe" at Step Two of the sequential analytical model. Plaintiff maintains that ALJ Marcy obviously failed to do so because he didn't mention them. Plaintiff concedes that "the severity of plaintiff's depression or hypertension alone may not be enough to cause her disability" but argues that ALJ Marcy was obligated under 20 C.F.R. § 404.1523 to discuss and evaluate them.
Presumably, plaintiff refers to notations that she takes "Plendil", a medication commonly prescribed as treatment for hypertension (Tr. 109), and to plaintiff's emergency room and clinic doctors' handwritten notes containing a notation of "Anxiety State" and abbreviations of "HTN", that may be an acronym for hypertension. Tr. 133-135, 139-140, 171.
In response, the Commissioner argues that ALJ Marcy did consider all of plaintiff's impairments, but that plaintiff never asserted that depression or hypertension contributed to her inability to work. The Commissioner cites portions of ALJ Marcy's opinion that indicate that he considered the entire medical record, including all potential impairments. Def.'s Br. at 3. As a result of plaintiff's failure to present evidence of how her hypertension and alleged depression could affect her ability to work, the Commissioner argues that ALJ Marcy's finding is supported by substantial evidence.
B. Discussion and Analysis
1. Impairments Generally
As a threshold matter, the Commissioner unquestionably must consider all potential impairments. See generally 20 C.F.R. § 404.1523 (2004); Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000); Crowley v. Apfel, 197 F.3d 194, 197 (5th Cir. 1999). Since benefits based on disability are awarded only for impairments that render a person unable to engage in substantial gainful activity, an abnormality or condition with no effect on ability to engage in substantial gainful activity is not an impairment for Social Security purposes. Moreover, regulations further refine the definition of an impairment as an abnormality that can be shown by medically acceptable clinical and laboratory diagnostic techniques, and, in fact, must be established by medical evidence, as opposed to the claimant's subjective statement or symptoms. 20 C.F.R. § 416.908 (2004). Hence, early on in the process, an ALJ decides whether an alleged impairment is an impairment at all within the specialized meaning of that term. If not, there is no error in failing thereafter to mention or analyze it further. Domingue v. Barnhart, 388 F.3d 462, 463 (5th Cir. 2004).
Social Security benefits based on disability are awarded only for "impairments" that render a person unable to engage in any substantial gainful activity for a continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(A).
When there are multiple impairments, the Commissioner's regulation and case law require consideration of the combined effect of all impairments, irrespective of whether any impairment, if considered separately, would not meet the definition of "medical severity." See, e.g., 20 C.F.R. § 404.1523 (2004); Crowley v. Apfel, 197 F.3d at 197; Anthony v. Sullivan, 954 F.2d at 293. If any impairment or combination of impairments is determined to be "medically severe," it must be considered throughout the remainder of the disability determination process. 20 C.F.R. § 404.1523 (2004); Loza v. Apfel, 219 F.3d at 393; Horton v. Barnhart, No. 1:03cv222 at 14-15 (E.D. Tex. filed Dec. 1, 2004).
"In determining whether your physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under the law, we will consider the combined effect of all of your impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity [to be the basis of eligibility under the law]. If we do find a medically severe combination of impairments, the combined impact of the impairments will be considered throughout the disability determination process."20 C.F.R. § 404.1523 (2004) (italics added).
In Horton, the court observed that a "befitting approach" at Step Two ultimately addresses three distinct questions:
• Does an allegedly disabling condition constitute an " impairment" as that term is understood in social security parlance?
• If so, does it constitute a " severe impairment" as that term is defined by the Commissioner and interpreted by courts?
• If not, does the impairment nevertheless combine with other impairments so that their cumulative effect amounts to a "severe impairment?"Id. at 15-16 (italics added). In any event, failure to consider the combined impact of multiple impairments constitutes failure to apply correct principles of law. Loza v. Apfel, 219 F.3d at 393, 399; Owens v. Heckler, 770 F.2d 1276, 1282 (5th Cir. 1985) (citing Dillon v. Celebrezze, 345 F.2d 753, 756-57 (4th Cir. 1965)) ("[The examiner erred] in his application of the proper legal standards. . . . [T]he examiner so fragmentized [plaintiff's] several ailments . . . that he failed properly to evaluate their effect in combination.").
An impairment is severe when its magnitude is sufficient to limit significantly an individual's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c);Barnhart v. Thomas, 540 U.S. 20, 24, 124 S. Ct. 376, 379, 157 L.Ed.2d 333 (2003).
2. Application a. Did ALJ Marcy Fail to Consider All Impairments?
ALJ Marcy never mentioned hypertension or depression ("bad nerves") in his evaluation of plaintiff's alleged impairments. Complete lack of substantive treatment lends some support to plaintiff's argument that ALJ Marcy failed to consider these conditions. Given the fact that ALJ Marcy's decision was thoughtful and thorough otherwise, one might reasonably think that had ALJ Marcy considered these conditions and found them not to be impairments at all, or not severe, singly or in combination, he would have said so. Since he did not, the court might rationally conclude that ALJ Marcy erred in this respect.
The law, however, does not compel such a conclusion. ALJ Marcy clearly was aware of plaintiff's alleged disability due to hypertension because he specifically mentioned it at the outset of his decision. Tr. 17. ALJ Marcy also correctly characterized what regulations require for determining when a medically determinable impairment or combination of impairments is "severe." Tr. 18 (citing 20 C.F.R. §§ 404.1521 and 416.921). He acknowledged that regulations require that, if a severe impairment exists, it must be considered in the remaining steps of the five-step analysis. Tr. 18 (citing 20 C.F.R. §§ 404.1523 and 416.923). Finally, ALJ Marcy repeatedly stated that he considered the entire medical record carefully. Tr. 18, 22 (Finding 6).
ALJ Marcy found that plaintiff has a combination of impairments — migraine headaches, arthritis of the knees and sinus problems — considered severe. Tr. 18, 21 (Finding 3).
ALJ Marcy discussed the combination of impairments that he found to meet the standard of medical severity at Step Two through the remaining three steps of the five-step sequential analysis.
In an analogous case, a federal court of appeals recently held that an ALJ's consideration of all medical evidence permits an inference that (s)he considered all alleged impairments. InSkarbek v. Barnhart, 390 F.3d 500 (7th Cir. 2004), the claimant argued that the ALJ erred by failing to consider obesity in determining whether he was disabled. Id. at 504. The court held that an ALJ's mere failure to specifically mention obesity was not reason enough to remand the proceeding back to the Commission. The court concluded that, even though the ALJ did not mention the claimant's obesity in his decision, the ALJ did state that he had reviewed the record, which included doctors' opinions of the claimant's obesity. Therefore, the court concluded that the claimant's obesity "was factored indirectly into the ALJ's decision as part of the doctors' opinions." Id.
Here, ALJ Marcy stated that he reviewed all evidence. Tr. 22, Finding 6. Moreover, he correctly cited standards for determining medical severity of alleged impairments, singly or in combination. His decision reflects that he applied those standards. Hence, the court — should it embrace the Seventh Circuit's forgiving approach — might well conclude that ALJ Marcy did not err. Rather, the court might infer that ALJ Marcy considered all alleged impairments, determined that plaintiff's alleged depression was no impairment at all, and that plaintiff's hypertension, whether considered separately or in combination with other impairments, did not rise to the level of medical severity.
The question is close. However, the court need not decide here whether its duty of deference to the Commissioner warrants straining to sustain the Commissioner to the same extent as does the Seventh Circuit. This issue need not be addressed because, as explained next, remand is inappropriate even if the court assumes arguendo that ALJ Marcy erred in not considering plaintiff's hypertension and alleged depression.
b. Was any Error Harmless?
In the Administrative Procedure Act, Congress authorized federal district courts to "hold unlawful and set aside agency action, findings, and conclusions found to be . . . not in accordance with law . . . [or] . . . without observance of procedure required by law. . . ." See 5 U.S.C. § 706. However, in that same section, Congress admonished:
Administrative Procedure Act, Pub.L. No. 79-404, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C. (2004)).
"In making the foregoing determinations, . . . due account shall be taken of the rule of prejudicial error."Id. Courts often cite the latter portion of this statute as creating a "harmless error" rule for judicial review of issues involving agency failure to comply with applicable regulation.Landry v. Fed. Deposit Ins. Corp., 204 F.3d 1125, 1143-44 (D.C. Cir. 2000) (Randolph, J., concurring); Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift Supervision, 139 F.3d 203, 212 (D.C. Cir. 1998).
The Supreme Court instructs that invoking the harmless error rule is appropriate when "remand would be an idle and useless formality." NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n. 6, 89 S. Ct. 1426, 1430, 22 L.Ed.2d 709 (1969). In such cases, courts are not required to "convert judicial review of agency action into a ping-pong game." Id. Similarly, a Seventh Circuit case, Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989), articulated a popular test for determining when error is harmless:
"No principle of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe that remand might lead to a different result."Id.
Since Wyman-Gordon, federal appellate courts routinely apply harmless error analysis during judicial review of Social Security disability cases. The Fifth Circuit is no exception.See Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003) ("It is inconceivable that the ALJ would have reached a different conclusion on this record, even had the ALJ accepted at face value Frank's statement that she would prefer to work."); Morris v. Bowen, 864 F.2d 333, 336 (5th Cir. 1988); (Nall v. Barnhart, 78 Fed. Appx. 996, 997 (5th Cir. 2003) (Failure to apply all credibility factors was harmless error, because claimant did not allege missing factors applied to his condition).
Skarbek v. Barnhart, 390 F.3d at 504-505 (finding error harmless); Allen v. Barnhart, 357 F.2d 1140, 1143-45 (10th Cir. 2004) (finding error not harmless); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (finding error harmless); Brueggemann v. Barnhart, 348 F.3d 689, 695-96 (8th Cir. 2003) (finding error not harmless); Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990) (finding error harmless); Booz v. Sec'y of Health and Human Serv., 734 F.2d 1378, 1380 (9th Cir. 1984) (same); Simpson v. Barnhart, 91 Fed.Appx. 503, 507-508 (7th Cir. 2004) (same); Dykes v. Barnhart, 112 Fed.Appx. 463, 468 (6th Cir. 2004) (same); Kobetic v. Comm'r of Soc. Sec., 114 Fed.Appx. 171, 173 (6th Cir. 2004) (same);Hickey-Haynes v. Barnhart, No. 03-2475, 2004 WL 2725964 at *5 (6th Cir. Dec. 1, 2004) (same).
Accordingly, even were the court to assume arguendo that ALJ Marcy erred in failing to consider plaintiff's alleged hypertension and depression, the court nevertheless will affirm the Commissioner unless there is reason to believe that remand for consideration of those conditions might lead to a different result.
i. Depression
Plaintiff's medical record does not contain any reference to depression or note regarding treatment of depression. The only evidence of any mental or emotional problems is contained in plaintiff's own narrative description on her disability application. Tr. 83. Consequently, under specialized definitions applicable in Social Security jurisprudence, it is inconceivable that ALJ Marcy could have determined that plaintiff's "bad nerves" constituted an impairment. Plaintiff's burden was to present medical evidence of her impairments. 20 C.F.R. § 404.1508; see also n. 4, supra. Absent such medical evidence, ALJ Marcy could not infer an impairment of depression from the fact that plaintiff stated during the administrative hearing that she was often fatigued. Simply put, harmless error analysis fails to suggest that remand to consider alleged depression might legitimately change the analysis. ii. Hypertension
On the record before the court, ALJ Marcy might well have considered plaintiff's hypertension to meet the Social Security definition of an impairment. However, the record provides no basis for suggesting that remand to consider hypertension might legitimately result in a conclusion that plaintiff's hypertension, considered separately or in combination, meets the definition of a medically severe impairment. Hypertension generally is considered a remedial condition not disabling under the Social Security Act absent significant complications. Plaintiff never described how hypertension affected her, nor did plaintiff present evidence or testify as to any symptoms or complications of hypertension. Even more significantly, plaintiff's brief does not argue that plaintiff's hypertension affects her ability to work. Rather, plaintiff merely seeks to have the court remand the case on an assumed technical error. Absent evidence that an impairment significantly limits one's ability to do basic work activities, the impairment fails to meet the definition of medical severity. Hence, merely showing error falls short of showing the prejudicial error that Congress instructs courts to find before remanding.
See, e.g., Fraga v. Bowen, 810 F.2d 1296, 1305 n. 11 (5th Cir. 1987); James v. Bowen, 793 F.2d 702, 706 (5th Cir. 1986); Barajas v. Heckler, 738 F.2d 641, 644 (5th Cir. 1984).
Social Security regulations indicate that hypertension must be accompanied by significant complications to be considered disabling at Step Two of the sequential analysis. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 at § 4.01.
V. RESIDUAL FUNCTIONAL CAPACITY
Before making specific findings at Steps Four and Five of the sequential evaluation process, an ALJ must evaluate and determine a claimant's "residual functional capacity." Residual functional capacity is defined as "what you can still do despite your limitations." 20 C.F.R. § 404.1545(a) (2004). It has three components: physical abilities, mental abilities, and other abilities affected by impairments. Id.A. General
Essentially, the Commissioner decides whether an applicant, notwithstanding severe impairment, has the physical and mental ability to perform activities generally required by competitive, remunerative work. See 20 C.F.R. 404.1545; Soc. Sec. R. 96-8p (1996); 61 Fed. Reg. 34474 (July 2, 1996). The Commissioner assesses the applicant's physical, mental, and sensory abilities, evaluates how they apply to the applicant's work-related functioning, and finally considers whether the applicant can sustain work-related activities in a work setting on a regular and continuing basis. 20 C.F.R. 404.1545; Soc. Sec. R. 96-8p (1996).
Next, the Commissioner determines whether the applicant's current residual functional capacity equates with physical and mental ability to perform the applicant's past relevant work.See Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987). When an applicant's residual functional capacity meets or exceeds requirements of regular previous employment, the disability claim is denied. 20 C.F.R. § 404.1560(b)(3). Otherwise, the inquiry proceeds to Step Five where the Commissioner must show that the applicant can do alternative and available work as it is generally performed in the national economy. Taylor v. Bowen, 782 F.2d at 1298; 20 C.F.R. § 404.1566.
B. Procedures for Evaluating Residual Functional Capacity
Residual functional capacity, while conceptually clear-cut, is inherently imprecise in application. To reduce subjectivity and promote uniformity in residual functional capacity determinations, there are statutory, regulatory, internal policy rulings and case law guidelines. First, a policy statement in a Social Security ruling (Soc. Sec. R. 96-8p (1996)) requires an ALJ to make a separate, function-by-function assessment of seven strength demands. Second, Social Security Ruling 96-8p directs adjudicators to separately assess each of the specified physical functions, function-by-function, before expressing residual functional capacity in terms of exertional levels of work. Third, the aforementioned ruling, together with case law, require that every residual functional capacity determination be made in the context of ability to work on a regular and continuing basis. See, e.g., Frank v. Barnhart, 326 F.3d at 621; Watson v. Barnhart, 288 F.3d 212 (5th Cir. 2002); Singletary v. Bowen, 798 F.2d 818 (5th Cir. 1986). Finally, an ALJ has omnipresent duties to fully and fairly develop facts relevant to the issue, and to consider and assess all relevant evidence, including the applicant's testimony regarding subjective complaints of pain. Bowling v. Shalala, 36 F.3d 431, 438 (5th Cir. 1994); Carrier v. Sullivan, 944 F.2d 243, 247 (5th Cir. 1991); Scharlow v. Schweiker, 655 F.2d 645, 648 (5th Cir. 1981).
Those functions are:
1. Sitting
2. Standing
3. Walking
4. Lifting
5. Carrying
6. Pushing
7. Pulling
20 C.F.R. §§ 404.1545(b) and 416.945(b).
The preamble of Soc. Sec. R. 96-8p (1996) states this order of consideration:
The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraphs (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may RFC be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.
Soc. Sec. R. 96-8p (1996).
The regulation provides:
When we assess your physical abilities, we first assess the nature and extent of your physical limitations and then determine your residual functional capacity for work activity on a regular and continuing basis.20 C.F.R. § 404.1545(b) (2004).
Soc. Sec. R. 96-8p (1996) provides:
Ordinarily, RFC is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule.
42 U.S.C. 405(g); 20 C.F.R. 410.640 (2002); see, e.g., Kane v. Heckler, 731 F.2d 1216, 1219-1220 (5th Cir. 1984);
Kane, 731 F.2d at 1219; Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996).
D. ALJ Marcy's Residual Functional Capacity Finding
ALJ Marcy determined that plaintiff could perform a limited range of light work. ALJ Marcy correctly described "light work" as work involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Tr. 19-20; 20 C.F.R. §§ 404.1567(b) and 416.967(b). ALJ Marcy found that plaintiff could "occasionally climb, balance, stoop, kneel, crouch and crawl" and that she "will need the option to sit and stand at her will." Tr. 20.
Under this determination and VE Margaret Couch's testimony, ALJ Marcy determined at Step Four that plaintiff can no longer perform her past relevant work as hotel housekeeper and room inspector, laundry room attendant, or home health aide. However, he concluded that plaintiff can perform certain other available jobs within the light work category, including usher, hospital escort, and parking lot signaler. Tr. 21. This finding of plaintiff's residual functional capacity to perform alternative available work compelled a finding of no disability and resulted in denial of plaintiff's claim.
E. Competing Arguments
Plaintiff perceives multiple errors in ALJ Marcy's residual functional capacity determination. Because the alleged errors are numerous, the competing arguments are summarized in table form below:
PLAINTIFF'S ARGUMENT COMMISSIONER'S RESPONSE
Failure to perform function-by-function analysis. ALJ Marcy substantially complied with the function-by-function analysis requirement. Procedural perfection is not required, and a function-by-function assessment would have been pointless given absence of any physician-recommended limitations. Failure to express residual functional capacity in terms of Residual functional capacity is an assessment of ability to ability to work on regular and continuing basis. do sustained work activities on a regular and continuing basis. Nothing indicates that ALJ Marcy applied the term in any other manner. Expressing residual functional capacity in terms of ALJ Marcy's decision reflects familiarity with applicable exertional level of work prior to performing function-by-function regulations and rulings, and his residual functional capacity analysis. determination is supported by substantial evidence. Ignoring relevant evidence regarding arthritis, resulting in ALJ Marcy's opinion reflects that he considered evidence erroneous classification in wrong exertional category. regarding plaintiff's arthritis, as well as plaintiff's testimony. Evaluation of that evidence is a task particularly within the ALJ's province. Improperly evaluating plaintiff's subjective complaints of ALJ Marcy did not find that plaintiff suffers no pain, but pain. rather that her testimony was not fully credible given its inconsistency with objective medical evidence. ALJ Marcy's decision cites applicable regulations and rulings. An administrative fact-finder's evaluation of credibility regarding subjective complaints of pain is entitled to judicial deference. F. AnalysisThe above arguments are addressed seriatim in this section.
1. Function-by-Function Analysis
ALJ Marcy failed to discuss five strength functions listed in 20 C.F.R. §§ 404.1545 and 416.945 and Soc. Sec. R. 96-8p (1996),viz., plaintiff's ability to sit, stand, walk, push, and pull. Plaintiff argues that this omission was error under Myers v. Apfel, 238 F.3d 617 (5th Cir. 2001), and that she was prejudiced by it because she testified that "she is limited in her walking and standing," and because the jobs that VE Couch and ALJ Marcy determined that she could perform would be severely inhibited by such limitations. Pl.'s Br. at 11.
Plaintiff also argues that ALJ Marcy did not speculate that plaintiff could have some non-exertional limitations, such as mental limitations resulting from plaintiff's alleged anxiety or depression, and environmental limitations that plaintiff contends could result from her sinusitis. Pl.'s Br. at 11. Plaintiff's argument that ALJ Marcy was required to consider non-exertional limitations in the context of a function-by-function analysis under 20 C.F.R. §§ 404.1545 and 416.945 is misplaced. The regulations generally require ALJ's to perform the function-by-function analysis only with regard to strength demands, not non-exertional limitations, such as environmental or mental limitations. In any event, Plaintiff cannot contend that ALJ Marcy ignored medical evidence regarding such non-exertional limitations, because there is no such evidence in the record.
Myers v. Apfel held that an ALJ erred in failing to address all of the strength demand concerns in Soc. Sec. R. 96-8p.Myers, 238 F.3d at 620-21. This and other courts have followedMyers v. Apfel and reversed for legal error when the ALJ's opinion did not fairly reflect that the ALJ engaged in the required seven-factor analysis. At least one other court, however, distinguished Myers v. Apfel as being limited in application to its particular factual circumstances.Turman v. Barnhart, 2001 U.S. Dist. Lexis 20086 at *13, *15 (N.D. Tex. 2001) (stating that SSR 96-8p "does not require an administrative law judge to discuss all of a claimant's abilities on a function-by-function basis.").
See e.g., Ivey v. Barnhart, 2001 WL34043389 at *4 (N.D. Tex. Jan. 15, 2002) ("By not employing a function-by-function analysis, required by SSR 96-8p, the ALJ engaged in a flawed methodology, thereby tainting his decision to deny insurance benefits."); Washington v. Barnhart, No. 1:02-cv-694 (E.D. Tex. Aug. 24, 2004).
The Fifth Circuit recently clarified the extent of the ALJ's duty in Onishea v. Barnhart, ___ Fed. Appx. ___, 2004 WL 1588294 (5th Cir. July 16, 2004). There, the court held that an ALJ may rely on a state examiner's function-by-function assessment of a claimant's exertional limitations when determining residual functional capacity. Id. at *1. This recent clarification illuminates the ALJ's burden to either engage in an explicit function-by-function analysis or consider a state disability examiner's analysis of each required function.
The court recognizes that under Fifth Circuit Local Rule 47.5.4, unpublished opinions are not precedent except under the doctrines of res judicata, collateral estoppel or law of the case. Rule 47.5.4 does provide, however, that unpublished opinions may be persuasive.
The record here contains a function-by-function assessment performed by state disability examiner, Walter Buell, M.D. Tr. 150-57. Dr. Buell's functional assessment contains an evaluation of any possible exertional (Tr. 151) and non-exertional limitations (Tr. 152-54), based on his review of the medical evidence. Under Onishea v. Barnhart, ALJ Marcy was not required to repeat the exercise, and was entitled to rely on Dr. Buell's evaluations. Hence, there was no error.
2. Capacity for Regular and Continuous Work
ALJ Marcy did not state expressly that plaintiff has residual functional capacity for a limited range of light work on a regular and continuing basis. Myers v. Apfel stated that failure to set out whether a claimant can perform strength demands on a regular and continuing basis constitutes error.Myers, 238 F.3d at 620-21. Subsequently, however, the Fifth Circuit narrowed its rule so as to require an explicit statement only when the plaintiff presented evidence of waxing and waning symptoms. Frank v. Barnhart, 326 F.3d at 621 (holding that it is the claimant's responsibility to first establish the waxing and waning of symptoms to require ALJ to specifically state that the claimant can maintain employment). Finally, the Fifth Circuit has further constricted its rule to require no specific statement at all when an ALJ's opinion cites the appropriate regulation and ruling. Dunbar v. Barnhart, 330 F.3d 670, 672 (5th Cir. 2003).
In this instance, ALJ Marcy cited both the appropriate regulation and Social Security ruling that define residual functional capacity as the ability to work on a regular and continuing basis. Tr. 18. ALJ Marcy's citations to the appropriate regulations and ruling suffice as an implicit finding that plaintiff can perform a limited range of light work on a regular and continuing basis. This point of error therefore fails.
3. Expressing Exertional Level RFC Before Function-by-Function Analysis
ALJ Marcy's ultimate determination of plaintiff's RFC is set forth in one principal paragraph, which includes a topic sentence expressing ALJ Marcy's finding that plaintiff can perform light work, and several supporting sentences explaining requirements of light work and stating plaintiff's particular limitations. Tr. 19-20. Plaintiff argues that this paragraph structure reveals that ALJ Marcy violated or misapplied Soc. Sec. R. 96-8p (1996), which instructs adjudicators to separately assess each of the specified physical strength demands, function-by-function, before expressing residual functional capacity in terms of exertional levels of work.
Plaintiff's argument is novel and resourceful. However, it is not self-evident from writing style and paragraph structure that ALJ Marcy expressed residual functional capacity in terms of an exertional level of work before considering the seven strength demands of Ruling 96-8p. Plaintiff's brief does not cite case law or any other authority supporting the bold argument that ALJ Marcy erred by not discussing each function before defining the RFC category of "light work."
More significantly, in the Fifth Circuit, reversal and remand based on disregard of a social security ruling may occur only when the plaintiff also shows that prejudice arose from that error. Hall v. Schweiker, 660 F.2d 116, 119 (5th Cir. 1981). The law does not require the reviewing court to conjure up all possible means by which the plaintiff was prejudiced by the ALJ's findings; instead, the burden rests with the plaintiff, who must explain how he or she was prejudiced as a result of the ALJ's failure to follow an agency ruling. See id;Newton v. Apfel, 209 F.3d 448, 458 (5th Cir. 2000) (citingRipley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995)); Kane v. Heckler, 731 F.2d at 1220. To show prejudice, a plaintiff may present additional evidence that calls the ALJ's findings into question. Ripley, 67 F.3d at 557 n. 22; Newton, 209 F.3d at 458, or point to existing evidence suggesting that the ALJ's decision could have been different had the ALJ considered it.
Here, plaintiff has not proffered additional evidence or shown how the ALJ's discussion of each function individually, followed by a detailed discussion of the ALJ's determination of plaintiff's RFC, could have caused ALJ Marcy to reach a different result. Hence, this point of error also fails.
4. Disregarding Evidence of Arthritis a. Arguments
Plaintiff argues that ALJ Marcy must have ignored medical evidence regarding arthritis in her knees when finding that plaintiff's residual functional capacity was in the exertional category of "light." Pl.'s Br. at 18. Plaintiff reasons that, given ALJ Marcy's Step Four conclusion that plaintiff can no longer perform her prior relevant work as a hotel housekeeper and room inspector due to the arthritis, ALJ Marcy had no rational basis for concluding that plaintiff can still perform jobs involving just as much walking or standing. Plaintiff argues that " certainly prior work as a room inspector is less strenuous than [the jobs of usher, hotel escort, or parking lot signaler]." Id. Plaintiff contends that ALJ Marcy's Step Four finding compelled her to find a residual functional capacity of ability to work only at a lesser exertional level, i.e. "sedentary," and even that with limited standing and walking.
Plaintiff suggests that this error resulted in plaintiff being placed in the wrong exertional RFC category. Further, plaintiff argues that this error changed the out-come of ALJ Marcy's decision. Plaintiff argues that given plaintiff's age, education, and work experience, "the Grids" would have directed a finding of "disabled" had ALJ March classified plaintiff's residual functional capacity at the lower, sedentary level.
When a claimant's impairments are exclusively exertional in nature, (or when nonexertonal impairments do not significantly affect residual functional capacity) administrative adjudicators may make Step Five findings by taking administrative notice of disability vel non by consulting Medical-Vocational Guidelines, commonly referred to as "the Grids." See 20 C.F.R. Pt. 404, Subpt. P, App. 2, §§ 201-03 (2000). The Grids consist of three tables (for sedentary, light, and medium work) which may be consulted following a determination of claimant's residual functional capacity. The tables direct conclusions of disability or non-disability based upon claimant's age, education, and previous work experience.
The Commissioner's response is boilerplate and not necessarily ad rem. Accordingly, summarizing it here serves no useful purpose.
The Commissioner cites the undisputed premise that deciding disability is reserved to the Commissioner. Def.'s Br. at 9. The Commissioner argues that the evaluation of a claimant's symptoms and credibility is a task particularly within the province in the ALJ, who has had the opportunity to review the entire record and observe the claimant at the hearing. The Commissioner points to portions of ALJ Marcy's opinion that indicate that ALJ Marcy considered plaintiff's testimony regarding her functional limitations and restrictions, and cited the appropriate regulations regarding such limitations in rendering his decision.
b. Application
Plaintiff's argument that ALJ Marcy ignored evidence of plaintiff's alleged impairment due to arthritis is flawed. ALJ Marcy recognized plaintiff's arthritis impairment and deemed it to be "severe." Tr. 18. ALJ Marcy cited and discussed portions of the record regarding plaintiff's diagnosis, treatment, and symptoms of her arthritis. Id. at 18-19. Such discussion indicates that ALJ Marcy was well aware of the limitations caused by plaintiff's arthritis in her knees, and did not disregard such portions of the record or exhibit an overt bias against plaintiff. Absent such partiality or purposeful unfamiliarity with the record, a court cannot remand for another round of review of the evidence, or re-weigh the evidence itself, simply because the plaintiff believes that she falls within the "sedentary," and not "light," exertional category.
More to the point, however, plaintiff's brief argues only in conclusory terms that ALJ Marcy's residual functional capacity finding, and his subsequent Step Five finding, are internally inconsistent with his Step Four finding. Plaintiff cites no evidence or other authority sustaining her contention that work as an usher, escort, or parking lot signaler (jobs ALJ Marcy found that plaintiff can still do) involves exertional demands equal or less than as hotel housekeeper and room inspector (plaintiff's prior work). Moreover, independent review of the evidence suggests that this necessary link cannot be established. Upon examination by her attorney at the administrative hearing, plaintiff stated that, while working at the hotel, her duties involved pushing large bags of dirty linen on a laundry cart and dumping it down a chute, moving furniture in the hotel rooms, lifting and turning mattresses, and carrying vacuums up and down stairs. Tr. 30. Given such testimony, it seems logical for ALJ Marcy to differentiate plaintiff's prior hotel work from the duties of a escort, usher, or parking lot signaler.
This point of error, therefore, should not be sustained.
5. Subjective Complaints of Pain a. Argument
Plaintiff argues that 20 C.F.R. § 404.1529(c)(3) sets forth seven separate factors that an ALJ must consider, in addition to objective medical evidence, when assessing credibility of a claimant's subjective complaints of pain. Plaintiff concedes that ALJ Marcy discussed most factors, but argues that ALJ Marcy failed to fully discuss the fourth factor, i.e., type, dosage, effectiveness and side effects of medication.
These factors include:
1. The individual's daily activities;
2. The location, duration, frequency, and intensity of the individual's pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness and side effects of any medication the individual takes or has taken to alleviate the pain or other symptoms;
5. Treatment, other than medication, that the individual receives or has received for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to relieve the plain or other symptoms; and
7. Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.20 C.F.R. § 404.1529(c)(3); Soc. Sec. R. 96-7p (1996).
In yet another instance, the Commissioner responds with general boilerplate material that addresses plaintiff's argument indirectly (if at all). First, the Commissioner's brief relies on the undisputed proposition that a fact-finder's evaluation of the claimant's credibility regarding subjective complaints of pain is entitled to judicial deference, as long as the evaluation is supported by substantial evidence in the record. The Commissioner argues that ALJ Marcy never found that plaintiff is pain-free, but determined that her allegations regarding the severity of her pain were generally inconsistent with the objective medical evidence. Def.'s Br. at 8 (citing Tr. 19, 21). The Commissioner contends that ALJ Marcy reviewed all of plaintiff's medical evidence, applications for benefits, and testimony at the hearing in order to assess plaintiff's subjective complaints; expressed valid reasons for credibility choices; and cited applicable regulations ( 20 C.F.R. §§ 404.1529 and 416.929), and ruling (Soc. Sec. R. 96-7p) thereby indicating his awareness of a duty to consider all symptoms of plaintiff's impairments, including subjective pain.
b. Application
Proper evaluation of subjective complaints of pain often is the focus of judicial review. Reams of text might be devoted to a comprehensive summary of all applicable principles of analysis. However, this case requires a much narrower focus on one specific question:
Does failure to specifically mention and discuss one of the seven objective factors listed in the regulations and ruling suggest error that deprives the decision of substantial evidentiary support?
Undoubtedly, violation or misapplication of applicable regulations and rulings constitutes legal error. Bormey v. Schweiker, 695 F.2d 164, 167-68 (5th Cir. 1983). Moreover, when an administrative law judge does not express adequate reasons for credibility choices, the decision based thereon is not supported by substantial evidence. Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001); Jones v. Heckler, 702 F.2d 616, 622 (5th Cir. 1983). However, as noted earlier, to secure reversal and remand based on such error requires an affirmative showing of prejudice when the error is violation of a ruling, and "harmless error" analysis applies when the error is violation of a regulation. See discussion at § V.B.2.b., supra.
Here, plaintiff testified that her medication causes her to feel drowsy and lie down often. Tr. 33. This subjective testimony, albeit minimal, was enough to trigger ALJ Marcy's duty to consider side effects of medication when assessing credibility of plaintiff's subjective complaints of pain.
ALJ Marcy's decision never discusses "side effects of medication" in haec verba. However, the court cannot automatically accept plaintiff's argument that ALJ Marcy therefore disregarded the fourth objective factor for evaluating plaintiff's credibility. ALJ Marcy's opinion contains a lengthy analysis of plaintiff's complaints of pain. Tr. 19-20. He found medical evidence showing a basis for pain (Tr. 18-19), and credited plaintiff's subjective testimony to the extent of finding that plaintiff suffers from a degree of pain. Tr. 19. He cited specifically the regulations and ruling that require consideration of seven objective factors. Tr. 19. And — most significantly — he discussed plaintiff's medications by name (Tr. 18), noting that (a) plaintiff was not taking an inordinate amount of pain medication; (b) plaintiff's medication was treating her symptoms effectively; (c) no physician imposed or recommended restrictions on plaintiff's movement or activities; and (d) plaintiff testified that she takes care of young grandchildren on a regular basis. Tr. 19. Plaintiff's attorney also questioned her at length before ALJ Marcy at the administrative hearing regarding plaintiff's drowsiness and its effect on the activities that she performed on an average day. Tr. 32-33. These deliberations naturally factored in effects of medication, and the court therefore would judge too harshly if it were to conclude that failure to use explicitly the term "side effects" necessarily indicates failure to comply with regulatory and ruling requirements. Moreover, under the rule of Dunbar v. Barnhart, 330 at 672, and Skarbek v. Barnhart, 390 F.3d at 504, ALJ Marcy's citation to the appropriate regulations and ruling, as well as his statement that he reviewed the entire record, permits the court to infer that he took into account all relevant factors.
If, alternatively, the court assumes arguendo that ALJ Marcy neglected to consider side effects of medication, reversal and remand would be inappropriate nonetheless. Plaintiff's brief does not list any of the medications by name, nor does it discuss dosages or effectiveness of medications. Significantly, it also does not name which pain medications cause plaintiff to suffer disabling side effects. Indeed, the brief argues elsewhere that plaintiff's drowsiness is a result of alleged depression, not medication. Pl.'s Br. at 16. Hence, plaintiff has not in any event satisfied her burden to demonstrate prejudice arising from the alleged error, and the court — in harmless error analysis — cannot fairly conclude that the result could have changed had ALJ Marcy engaged in a more explicit analysis of medication side effects.
This point of error also fails.
VI. RECOMMENDATION
Because none of the plaintiff's points of error should be upheld and plaintiff has not offered adequate reason for remand, the Commissioner's decision should be affirmed and the case dismissed.X. OBJECTIONS
Within ten (10) days after receipt of the magistrate judge's report, any party may serve and file written objection to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C).
Failure to file written objections to the proposed findings and recommendation contained in this report within 10 days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings and recommendations.