Opinion
Civil. No. 01-5483(JBS).
October 31, 2002
Lisa E. Kabel-Barmat, Esquire, JACOBS, SCHWALBE PETRUZZELLI, P.C., Woodcrest Pavilion, Cherry Hill, New Jersey, Attorney for Plaintiff.
Christopher J. Christie, United States Attorney, By: Peter G. O'Malley, Assistant United States Attorney, Newark, New Jersey, Attorney for Defendant.
OPINION
This matter comes before this Court pursuant to section 205(g) of the Social Security Act, as amended 42 U.S.C. § 405(g), to review the final decision of the Commissioner of the Social Security Administration, denying plaintiff's claim for Disability Insurance Benefits and Supplemental Security Income Benefits. This Court must determine whether the decision that Mr. Baker is "not disabled" is supported by substantial evidence. For the reasons stated below, this Court will affirm the Commissioner's decision.
I. BACKGROUND A. Procedural History
Plaintiff, Anthony Baker, Sr., filed an application for Disability Insurance Benefits ("DIB") on July 30, 1996 in which he alleged that he had an onset of disability on June 2, 1996. (R. at 54-56.) His application was denied on September 3, 1996. (R. at 57-58.) Plaintiff then filed a request for reconsideration on January 30, 1997. (R. at 72.) The request was dismissed because there was no "good cause" for the late filing of the reconsideration request. (R. at 73.)
This Court must note, at the outset, that plaintiff has not alleged a disability due to alcoholism although the record is filled with references to his harmful drinking habits. (See applications at R. at 57, 74, 272, 281 which state plaintiff's disability is "seizure disorder and high blood pressure"). The ALJ noted that plaintiff's application was based on a seizure disorder, even though his record shows a history of alcohol abuse. (R. at 16-17.)
The record does show that plaintiff has not always admitted problems with alcohol. Dr. Ellwood Paisley, the state consultative examiner, indicated in his report that plaintiff said he had no past history with alcohol abuse. (R. at 322.) Plaintiff also denied drinking during some of his visits to the emergency room, even though he showed signs of alcohol use. (See R. at 96, 369).
This Court must consider plaintiff's application for disability benefits based on the disability alleged. As a result, this Court will not offer any judgment on whether plaintiff suffers from any disabilities associated with alcohol use.
Plaintiff then filed an application for DIB and for Supplemental Security Income Benefits ("SSI") on September 23, 1997, alleging a June 2, 1996 onset date for disability from a seizure disorder and from high blood pressure. (R. at 277-79, 447-49.) The Commissioner denied the application on initial review and upon reconsideration. (R. at 267-70, 272-74, 450-54, 456-58.) Plaintiff then filed a timely request for review by an Administrative Law Judge ("ALJ"). (R. at 275.) A hearing was held on July 29, 1999 before ALJ Dean W. Determan. (R. at 23-53.) ALJ Determan issued a decision denying benefits on February 22, 2000. (R. at 16-20.) Plaintiff filed a timely request for review by the Appeals Council. (R. at 8-12.) On October 4, 2001, the Appeals Council denied plaintiff's request for review and the February 22, 2000 decision of the ALJ became the final decision of the Commissioner of the Social Security Administration. (R. at 13.)
Plaintiff then filed the present action with this Court on November 29, 2001 seeking judicial review of the ALJ's decision. [Docket Item 1-1.]
B. Evidence in the Record 1. Testimony
Plaintiff was born on May 14, 1946. (R. at 54.) He completed school through the tenth grade. (R. at 28.) He then began jobs as short order cook, janitor, truck driver assistant, and lunch aide. (R. at 78.) From 1970 until 1996, plaintiff was employed by the Camden Board of Education as a food service worker. (R. at 285, 303-308.) At the administrative hearing, plaintiff testified that he was dismissed from his job at Camden High School on June 2, 1996 because of his seizure disorder. (R. at 31.) He stated that he had seizures "a couple of times and they were afraid I was going to fall and hurt myself." (R. at 31.) Plaintiff testified that he then "went from job to job" but no one would hire him because of his seizures. (R. at 281.)
Plaintiff explained that his symptoms include "buzzing," headaches, and lightheadedness and that when he comes out of the seizure, he cannot remember what happened. (R. at 37-38.) As a result, he fears going out alone because, when he used to go out, he would "wind up in an emergency room somewhere" because he had a seizure. (R. at 42-43.) His friends tell him that they can see when he is starting to have a seizure because he starts to shake and his eyes roll back in his head. (R. at 43.) Plaintiff can also tell that a seizure may be imminent if his eyes run and he hears buzzing or feels dizzy. Then, if he falls asleep in his recliner, the feeling usually passes. (R. at 45-46.)
Plaintiff also testified that he has been drinking alcohol for twenty-five years and that every three weeks he drinks for an extended period of time, generally up to half a week. (R. at 32, 35-36.) He went through a detoxification program and had been to one or two Alcoholics Anonymous meetings five or six years ago. (R. at 32-33.)
Plaintiff said that his daily activities generally involve staying home and watching television. (R. at 41.) Every other day, he does some housework, including vacuuming, dusting, and laundry. (R. at 41.) He takes out the trash every Monday night. (R. at 42.) Each night, he sleeps six or seven hours. (R. at 43.)
Plaintiff's daughter also testified at the hearing. (R. at 47-52.) She testified that she does not live with the plaintiff anymore, but that she sees him once or twice a week. (R. at 50.) She has seen plaintiff have a major seizure, and she has seen him have "little seizures" where he gets dizzy and holds his head as though confused. (R. at 49.) She said that the little seizures can happen at any time, even when plaintiff is sitting in an armchair watching television. (R. at 49-50.)
2. Medical reports
Medical records from West Jersey hospital document that plaintiff repeatedly sought treatment for his seizure disorder at the emergency room from January 1995 through July 1998. (R. at 90-264, 335-446.)
On January 4, 1995, plaintiff was admitted as an inpatient at West Jersey. (R. at 93-108.) He had visited the emergency room on January 3, 1995 complaining of rectal bleeding. (R. at 93.) When he came for his follow-up visit the next morning, he suffered a grand mal seizure. (R. at 93.) He denied that he was using alcohol and claimed that he was using his dilantin medication as prescribed. (R. at 96.) A CT scan of his brain did not show any active disease and an EEG produced normal results. (R. at 106, 108.) Dr. Julius Brooks discharged plaintiff, diagnosing seizure disorder, internal hemorrhoids, anemia, and alcohol abuse and withdrawal syndrome. (R. at 91.)
Plaintiff returned to the emergency room on March 20, 1995 because he was lightheaded. (R. at 247.) He admitted that he had not taken his dilantin over the weekend, but that he did take it that morning. (R. at 249.) His dilantin level was tested to be 16.0 within the therapeutic range of 10.0 to 20.0. (R. at 252.) He was given dilantin and discharged. (R. at 247.)
Plaintiff followed this same general scenario in the emergency room repeatedly, though his dilantin level was generally below the therapeutic range. On April 30, 1995, he was treated with dilantin and discharged. (R. at 237-41.) On May 8, 1995, his dilantin level was 6.1 so he was given dilantin and discharged. (R. at 221, 229.) On July 15, 1995, plaintiff's dilantin level tested at 2.5, so he was given dilantin and tylenol and was discharged. (R. at 216, 219.) During the July 15th visit, plaintiff admitted that he had not been taking his dilantin as prescribed. (R. at 217.)
On August 5, 1995, plaintiff visited the emergency room with a blood alcohol level of 380 mg/dl, which falls into the range of "deep, possibly fatal coma." (R. at 200, 207.) He was treated and discharged the same day, but returned to the hospital the next day with a dilantin level of 5.2. (R. at 199-201.) He again admitted that he had not taken his dilantin, was treated with dilantin, and was discharged. (R. at 195-96.)
Plaintiff returned to the hospital three more times in 1995 with low dilantin levels. His level on October 9 was 2.5, on October 10 was 9.1, an on November 17 was 6.2. (R. at 191, 182, 170.) In each case he was given dilantin and discharged. (R. at 185, 176, 168.)
Plaintiff's hospital visits continued in 1996. When he visited the emergency room on April 15, 1996, he was treated with dilantin and instructed to refrain from alcohol and take dilantin as prescribed. (R. at 151, 153.) He was taken to the emergency room on May 9, 1996 because he had suffered three seizures. (R. at 140.) His dilantin level was 7.2. (R. at 143.)
Alcohol remained a problem in 1996. During his May 16th visit to the emergency room, his dilantin level was 2.5. (R. at 132.) He told the doctor that he had not taken his dilantin for two days because he was celebrating his birthday. (R. at 128.) His blood alcohol level measured at 347 mg/dl, again a "deep, possibly fatal coma" measurement. (R. at 132.) On May 26, 1996, plaintiff admitted that he had not taken dilantin because he was drinking alcohol. (R. at 123.) During his June 2, 1996 visit, his blood alcohol level measured at 348 mg/dl and his dilantin level at 2.0. (R. at 120.) On June 16, 1996, plaintiff admitted that he had not taken dilantin for a couple days and that he had been drinking that afternoon. (R. at 110-11.)
After plaintiff filed for benefits, he was sent to a consultative examiner, Dr. Ellwood Paisley. (R. at 322-24.) Plaintiff's dilantin level measured below normal range at 9.2. (R. at 323, 326.) Dr. Paisley found that plaintiff suffered from chronic epilepsy and hypertensive cardiovascular disease and stated that "[a]t the moment, I do not feel he is capable of performing in the labor market." (R. at 323-24.)
Dr. Anthony L. Danza, a state agency review physician, reviewed the record and provided a physical residual functional capacity opinion on March 2, 1998. (R. at 327-34.) He found that plaintiff could lift and/or carry fifty pounds occasionally or twenty-five pounds frequently, that he could stand, sit and walk for about six hours in an eight-hour workday, and that he could push, pull, stoop, kneel, crouch, and crawl. (R. at 328-29.) However, he felt that plaintiff should not try to climb or balance. (R. at 329, 331.) Dr. V. Kheyfets, another state agency review physician, reviewed plaintiff's record on August 21, 1998, and indicated his agreement with Dr. Danza's assessment. (R. at 334.)
Meanwhile in 1998, plaintiff continued his emergency room visits. On March 11, 1998 he denied drinking, but smelled of alcohol. (R. at 369.) His dilantin measured at 2.5. (R. at 373.) On April 10, 1998, plaintiff admitted he had been drinking alcohol and had not been taking dilantin. (R. at 358.) His dilantin again measured at 2.5. (R. at 362.) On May 9, 1998, he again admitted to using alcohol and to not using dilantin. (R. at 350.) On July 21, 1998, his dilantin level was 2.5. (R. at 344.)
In 1999, plaintiff visited West Jersey hospital on March 31st with a "deep, possibly fatal coma" blood alcohol level of .313. (R. at 378.) The doctors found that he had large internal hemorrhoids and a rectal mass. (R. at 377.) Because the staff found it was unlikely that plaintiff would follow-up on the condition as an outpatient, he was admitted and underwent a hemorrhoidectomy on April 14, 1999. (R. at 377, 391.) He was discharged on April 16th with "acute severe alcohol withdrawal with seizures, delirium tremens, large internal and external hemorrhoids with thrombosis, status post two quadrant hemorrhoidectomy, hypertension, [and] tobacco abuse." (R. at 377.)
On May 1, 1999, plaintiff visited the emergency room with a dilantin level of 2.5 and a blood alcohol level of .392. (R. at 410.) On May 6, 1999, plaintiff's dilantin level was measured again at 2.5 and his blood alcohol level was .401. (R. at 420.) Plaintiff visited the emergency room with similar complaints and conditions on May 9, 1999, (R. at 429-30), May 17, 1999, (R. at 432-39), and June 29, 1999, (R. at 441-42).
II. DISCUSSION
In his February 22, 2000 decision, ALJ Dean W. Determan found that there was substantial evidence that established that plaintiff has a seizure disorder and hypertension. (R. at 19.) However, he also found that plaintiff's impairments did not qualify him for disability benefits. (Id.) Plaintiff has appealed the decision to this Court.
A. Standard of Review
Under 42 U.S.C. § 405(g), Congress provided for judicial review of the Commissioner's decision to deny a complainant's application for Disability Insurance Benefits. Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995). A reviewing court must uphold the Commissioner's factual decisions where they are supported by "substantial evidence." 42 U.S.C. §§ 405(g), 1383(c)(3); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000);Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992),cert. denied, 507 U.S. 924 (1993). "Substantial evidence" means more than "a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The inquiry is not whether the reviewing court would have made the same determination, but, rather, whether the Commissioner's conclusion was reasonable. See Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
A reviewing court has a duty to review the evidence in its totality. See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984). "[A] court must `take into account whatever in the record fairly detracts from its weight.'" Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (quoting Willbanks v. Secretary of Health Human Servs., 847 F.2d 301, 303 (6th Cir. 1988) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951))).
The Commissioner must adequately explain in the record his reasons for rejecting or discrediting competent evidence." Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citingBrewster v. Heckler, 786 F.2d 581 (3d Cir. 1986)). The Third Circuit has held that an "ALJ must review all pertinent medical evidence and explain his conciliations and rejections." Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000). Similarly, an ALJ must also consider and weigh all of the non-medical evidence before him. Id. (citing Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983); Cotter, 642 F.2d at 707).
The Third Circuit has held that access to the Commissioner's reasoning is indeed essential to a meaningful court review:
Unless the [Commissioner] has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits, to say that his decision is supported by substantial evidence approaches an abdication of the court's duty to scrutinize the record as a whole to determine whether the conclusions reached are rational.Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978). A district court is not "empowered to weigh the evidence or substitute its conclusions for those of the fact-finder." Williams, 970 F.2d at 1182. However, an ALJ need not explicitly discuss every piece of relevant evidence in his decision. See Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001).
Moreover, apart from the substantial evidence inquiry, a reviewing court is entitled to satisfy itself that the Commissioner arrived at his decision by application of the proper legal standards. Sykes, 228 F.3d at 262; Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983); Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981).
B. Standard for Disability Insurance Benefits
The Social Security Act defines "disability" for purposes of a plaintiff's entitlement to benefits as the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(A). Under this definition, a claimant qualifies as disabled "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has promulgated regulations for determining disability applicable to Disability Insurance cases. See 20 C.F.R. §§ 404.1501-404.1599. Under these regulations, substantial gainful activity is defined as "work that — (a) involves doing significant and productive physical or mental duties; and (b) is done (or intended) for pay or profit." 20 C.F.R. § 404.1510. Importantly, this definition presupposes a regular, continuing, and sustained ability to perform such work. Kangas v. Bowen, 823 F.2d 775, 778 (3d Cir. 1987).
The Commissioner has promulgated regulations that determine disability by application of a five-step sequential analysis that is codified in 20 C.F.R. § 404.1520. The Commissioner evaluates each case according to the five-step process to determine if the plaintiff is "disabled" or "not disabled." 20 C.F.R. § 404.1520(a). This five-step process is summarized as follows:
1. If the claimant currently is engaged in substantial gainful employment, he will be found "not disabled."
2. If the claimant does not suffer from a "severe impairment," he will be found "not disabled."
3. If the severe impairment meets or equals a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 and has lasted or is expected to last for a continuous period of at least twelve months, the claimant will be found "disabled."
4. If the claimant can still perform work he has done in the past ("past relevant work") despite the severe impairment, he will be found "not disabled."
5. Finally, the Commissioner will consider the claimant's ability to perform work ("residual functional capacity"), age, education and past work experience to determine whether or not he is capable of performing other work which exists in the national economy. If he is incapable, he will be found "disabled." If he is capable, he will be found "not disabled."20 C.F.R. § 404.1520(b)-(f). Entitlement to benefits is therefore dependent upon a finding that the claimant is incapable of performing work in the national economy.
This five-step process involves a shifting burden of proof.Wallace v. Secretary of Health Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983). In the first four steps of the analysis, the burden is on the claimant to prove every element of his claim by a preponderance of the evidence. Id. In the final step, the Commissioner bears the burden of proving that work is available for the plaintiff: "Once a claimant has proved that he is unable to perform his former job, the burden shifts to the Commissioner to prove that there is some other kind of substantial gainful employment he is able to perform." Kangas, 823 F.2d at 777.See Olsen v. Schweiker, 703 F.2d 751, 753 (3d Cir. 1983). C. Plaintiff's Arguments
Plaintiff argues that the ALJ's decision which denied him benefits was improper because (1) the ALJ improperly discounted plaintiff's testimony about his limitations, (2) the ALJ did not consider all the medical evidence in the record, (3) the Commissioner did not establish that plaintiff's condition does not meet or equal a "listed impairment" at step three, (4) the ALJ failed to properly determine plaintiff's residual functional capacity at step five, and (5) the ALJ failed to call a vocational expert for step five testimony about plaintiff's ability to hold a job in the national economy. This Court will consider each claim in turn.
1. Plaintiff's testimony
Plaintiff argues that the ALJ did not adequately consider plaintiff's testimony of disabling symptoms. (Pl.s' Br. at 13.) It is true that a plaintiff's subjective testimony of symptoms may support a claim for disability benefits. Bittel v. Richardson, 441 F.2d 1193, 1195 (3d Cir. 1971). However, subjective complaints of pain "do not in themselves constitute disability." Green v. Schweiker, 749 F.2d 1066, 1070 (3d Cir. 1984). They must be accompanied by medical signs and laboratory findings which show that the claimant has a medical impairment that could reasonably be expected to produce the pain or other symptoms alleged. See Bittel v. Richardson, 441 F.2d 1193, 1195 (3d Cir. 1971). The ALJ is required to give serious consideration to the claimant's subjective complaints of pain, even if they are not fully confirmed by the objective medical evidence, Welch v. Heckler, 808 F.2d 264, 270 (3d Cir. 1986), but the ALJ is not bound to accept unquestioningly the credibility of such subjective evidence. Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). It is within the ALJ's discretion "to evaluate the credibility of a claimant and to arrive at an independent judgment in light of medical findings and other evidence regarding the true extent of the pain alleged by the claimant.Brown v. Schweiker, 562 F. Supp. 284, 287 (E.D. Pa. 1983) (quoting Bolton v. Secretary of HHS, 504 F. Supp. 288 (E.D.N.Y. 1980)). Thus, on review, the Court must consider whether the ALJ's findings with regard to subjective complaints of pain are supported by substantial evidence. Dumas, 712 F.2d at 1552. Subjective symptoms of pain can be validated if observed and treated over time by a physician. Dorf v. Bowen, 794 F.2d 896 (3d Cir. 1986). While there must be objective medical evidence of some condition that could reasonably produce pain, there need not be objective evidence of the pain itself. Green v. Schweiker, 749 F.2d 1066, 1071 (3d Cir. 1984).
However, even if a medically determinable impairment exists which can reasonably be expected to produce pain, the intensity and persistence of symptoms must also be evaluated in order to determine how they might limit a claimant's ability to work.See 20 C.F.R. § 404.1529(c)(1) 1995). When a claimant's subjective complaints of pain indicate a greater severity of impairment than the objective medical evidence supports, the ALJ can give weight to factors such as physician's reports and claimant's daily activities. See 20 C.F.R. § 404.1529(c)(3) (1995).
When a plaintiff testifies that he suffers from pain and that testimony is corroborated by medical reports, the ALJ must give the subjective allegations great weight. See 20 C.F.R. § 404.1529(a)-(c); Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986). However, the ALJ has discretion "to evaluate the credibility of a claimant and to arrive at an independent judgment in light of medical rulings and other evidence regarding the true extent of the [ailment] alleged by the claimant."LaCorte v. Bowen, 678 F. Supp. 80, 83 (D.N.J. 1988) (quotingBrown v. Schweiker, 562 F. Supp. 284, 287 (E.D. Pa. 1983)). Where the "[Commissioner] is faced with conflicting evidence, he must adequately explain in the record his reasons for rejecting or discrediting competent evidence." Willbanks, 847 F.2d at 303.
The regulations provide, in pertinent part:
Since symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone, we will carefully consider any other information you may submit about your symptoms. . . . Because symptoms, such as pain, are subjective and difficult to quantify, any symptom-related functional limitations which you, your treating or examining physician or psychologist, or other persons report, which can be reasonably accepted as consistent with the objective medical evidence and other evidence, will be taken into account . . . in reaching a conclusion as to whether you are disabled.20 C.F.R. § 404.1529(c)(3).
Here, the ALJ did consider plaintiff's complaints and medical history to determine that plaintiff suffers from severe medical impairments. (R. at 18.) Plaintiff's testimony and the medical records clearly supported the finding that plaintiff has a seizure disorder that produces sporadic grand mal seizures.
Plaintiff argues, however, that the ALJ then did not consider his testimony about the symptoms and limitations he suffers as a result of the seizure disorder in determining whether he could handle substantial gainful activity. (Pl.'s Br. at 13.) Plaintiff argues that this violated Social Security Ruling 96-7p. (Pl.'s Br. at 14.)
Social Security Ruling 96-7p clarifies the two-step process that an ALJ should follow when a plaintiff testifies about symptoms. First, the ALJ must determine whether there is an "underlying medically determinable physical or mental impairment . . . that could reasonably be expected to product the individual's symptoms." S.S.R. 96-7p. If there is, then the ALJ must "evaluate the intensity, persistence, and limiting effects of the individual's symptoms to determine the extent to which the symptoms limit the individual's activity to do basic work activities." Id. If the plaintiff's testimony about the intensity and limitations of his symptoms is not substantiated by objective medical evidence, the ALJ must make a finding regarding the credibility of the plaintiff's testimony. Id. The ALJ may determine such credibility by considering factors, such as the plaintiff's daily activities, the conduct that precipitates and aggravates the symptoms, and the plaintiff's prescribed medical treatment. Id. The plaintiff's prescribed medical treatment is especially relevant because the Code of Federal Regulations makes clear that:
(a) In order to get benefits, you must follow treatment prescribed by your physician if this treatment can restore your ability to work.
(b) If you do not follow the prescribed treatment without a good reason, we will not find you disabled or, if you are already receiving benefits, we will stop paying you benefits.20 C.F.R. § 404.1530. Social Security Ruling 96-7p thus states that the plaintiff's statements "may be less credible . . . if the medical reports or records show that the individual is not following the treatment as prescribed and there are no good reasons for this failure." See also Welch v. Heckler, 808 F.2d 264, 270 (3d Cir. 1986) (finding that ALJ may consider whether claimant is not taking medication that was prescribed).
Here, ALJ Determan determined that "the subjective complaints of the claimant are not credible considering the objective medical evidence, the testimony of the claimant and his daily living activities." (R. at 20.) This determination is supported by substantial evidence. The record is replete with records that show that plaintiff has not taken his dilantin medication as prescribed. (See, e.g. R. at 110, 123, 126, 152, 187, 195, 217, 249, 354, 359, 388, 428.) At such times, lab results showed that his dilantin level was below the proper therapeutic range, plaintiff was treated with dilantin, and was discharged with instructions to take his dilantin. (See, e.g. R. at 122, 131, 135, 151, 166, 184, 198, 238.) The record also includes ample evidence that plaintiff drinks alcohol, and that the alcohol triggers his symptoms. (See, e.g. R. at 115, 410, 420.) Plaintiff was repeatedly told to stop drinking because seizures can be provoked by alcohol abuse. (See, e.g. R. at 151, 423, 434.) Yet, time and time again, he arrived at the emergency room and admitted that he had not been taking his dilantin. Additionally, at the administrative hearing, plaintiff testified that every three weeks or so, he drinks for an extended period of time that can last as long as three or four days. (R. at 36.) There was clearly substantial evidence in the record to support the ALJ's finding that plaintiff's condition, if properly treated, would not prevent him from pursuing gainful employment.
The ALJ also considered plaintiff's testimony about his daily activities in determining that employment exists that plaintiff is capable of performing. Plaintiff had testified that he could vacuum, do laundry, dust, and take out the garbage, and that he can sleep six or seven hours without interruption. (R. at 41-43.) Thus, based on the entire record, the ALJ determined that plaintiff's "subjective complaints [were] not credible." (R. at 20.)
2. Evaluation of medical evidence
Plaintiff next argues that the ALJ did not consider all the evidence in the record because he did not cite to all of it in his decision. (Pl.'s Br. at 15.) It is true that the ALJ "must provide some explanation for a rejection of probative evidence which would suggest a contrary disposition." Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (citing Brewster v. Heckler, 786 F.2d 581, 585 (3d Cir. 1986)). He may properly accept some parts of the medical evidence and reject other parts, but he must consider all the evidence and give some reason for discounting evidence he rejects. Id. (citing Stewart v. Secretary of H.E.W., 714 F.2d 287, 290 (3d Cir. 1983)).
However, the ALJ is not expected "to make reference to every relevant treatment note where claimant . . . has voluminous medical records." Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001). Rather, the ALJ is expected "to consider and evaluate the medical evidence in the record consistent with his responsibilities under the regulations and case law." Id.
Here, the ALJ did sufficiently explain his conclusion. He was faced with a vast record of plaintiff's emergency visits and he did not cite to every visit in his decision. It was not necessary for the ALJ to mention each treatment where, as in this case, there is a cumulative nature of such evidence, presenting a pattern of extreme intoxication coupled with non-compliance in taking required medication. The ALJ presented his findings clearly and concisely. He summarized plaintiff's testimony, plaintiff's daughter's testimony, and plaintiff's medical records. (R. at 17-19.) He weighed the medical data submitted by the hospital and by the consultative examiners and review physicians. (R. at 17-18.) He addressed plaintiff's credibility, assessed plaintiff's capacity to work, and considered plaintiff's past relevant work. (R. at 17-19.) In so doing, he showed that substantial evidence supported his decision that plaintiff was not entitled to disability benefits.
3. Listed impairment
Plaintiff also argues that the ALJ improperly found that his condition did not meet or equal a "listed impairment" during step three of the analysis. (Pl.'s Br. at 11.) He argues that the ALJ should have quoted the requirements for the listed impairments in their entirety instead of just citing to them. (Pl.'s Br. at 12.) This Court, however, finds that the ALJ properly referred to the appropriate regulations and reached a decision that was supported by substantial evidence in the record.
The listed impairments considered in step three of the analysis are set at a high severity because, if the plaintiff has a "severe impairment [that] meets or equals a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 and [the severe impairment] has lasted or is expected to last for a continuous period of at least twelve months," the plaintiff is conclusively presumed to be disabled and entitled to benefits without further inquiry. 20 C.F.R. § 404.1520(d); see also Bowen v. Yuckert, 482 U.S. 137, 141 (1987); Petition of Sullivan, 904 F.2d 826, 845 (3d Cir. 1990) (holding that step three finding of disabled implicitly includes finding that symptoms preclude any gainful work).
As a result, the level of severity required to meet or equal a listed impairment is higher than that needed to meet or equal the statutory standard for disability. Sullivan v. Zebley, 493 U.S. 521, 532 (1986). That is, the listings define impairments which would prevent an adult, regardless of his age, education, or work experience, from performing not just substantial gainful activity, but any gainful activity. Id.; See also 20 C.F.R. § 416.925(a) (stating that the purpose of the listings is to describe impairments "severe enough to prevent a person from doing any gainful activity"); S.S.R. 86-8 (stating that the listings define "medical conditions which ordinarily prevent an individual from engaging in any gainful activity").
At step three, the burden is on the plaintiff to present evidence that he suffered from a listed impairment, or from an equivalent impairment composed of an unlisted impairment or combination of impairments which equals the severity of all the criteria for a listed impairment. Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992). If the ALJ determines that the plaintiff suffers from an equivalent impairment, he must adequately explain his findings on equivalence. Marcia v. Sullivan, 900 F.2d 172 (9th Cir. 1990).
If the impairment is not a listed impairment or an equivalent impairment, and is thus not conclusively presumed to be disabling at step three, then the evaluation proceeds to the fourth step.See Yuckert, 482 U.S. at 141; Bowen v. City of New York, 476 U.S. 467, 471 (1986) (stating "[i]f claimant's condition meets or equals the listed impairments, he is conclusively presumed to be disabled and entitled to benefits"; if not, "the process moves to the fourth step").
Here, the ALJ determined that plaintiff did not suffer from a listed impairment or an equivalent impairment. (R. at 19.) He cited the two listings for epileptic disorders during the administrative hearing and in his decision and he had substantial evidence to support his finding that plaintiff's condition neither matched nor equaled either. (R. at 18, 46.)
First, he cited to the listing for major motor seizures, which states:
11.02 Epilepsy — convulsive epilepsy, (grand mal or psychomotor), documented by detailed description of a typical seizure pattern, including all associated phenomena; occurring more frequently than once a month in spite of at least 3 months of prescribed treatment.A. Daytime episodes (loss of consciousness and convulsive seizures) or B. Nocturnal episodes manifesting residuals which interfere significantly with activity during the day.20 C.F.R. Part 404, Subpart P, Appendix 1 at § 11.02. Second, he cited to the listing for minor motor seizures, which states:
11.03 Epilepsy — nonconvulsive epilepsy (petitmal, psychomotor, or focal), documented by detailed description of a typical seizure pattern, including all associated phenomena; occurring more frequently than once weekly in spite of at least 3 months of prescribed treatment. With alteration of awareness or loss of consciousness and transient postictal manifestations of unconventional behavior or significant interference with activity during the day.20 C.F.R. Part 404, Subpart P, Appendix 1 at § 11.03.
His decision that plaintiff's condition did not match either listing was supported by substantial evidence. First, plaintiff testified that he went to the hospital every time that he had a seizure. (R. at 44.) The hospital records, however, while they show that he visited the hospital frequently, do not show weekly or monthly visits. Second, the record did not show that the seizures continued at a rate of once per month in spite of "at least three months of prescribed treatment." Instead, the ALJ noted that plaintiff's seizures seemed to be related to non-compliance in taking prescribed dilantin medication. (R. at 18.) The record shows that plaintiff admitted his non-compliance with dilantin during at least twelve of his visits to the emergency room. (R. at 110, 123, 126, 152, 187, 195, 217, 249, 354, 359, 388, 428.) Time and time again, plaintiff was treated at the hospital with dilantin and discharged. The record also includes evidence that plaintiff does not take his medication when he is drinking, and that plaintiff drinks heavily every three weeks. (See, e.g. R. at 36, 110, 123, 128, 350, 359, 425, 428-29.) ALJ Determan had substantial evidence to decide that plaintiff has not followed his prescribed medical treatment for at least three months, and therefore did not fit the requirements of the listings found at section 11.02 and 11.03.
As a result, this Court finds that substantial evidence supports the ALJ's finding that plaintiff's condition did not meet or equal a listed impairment.
4. Residual functional capacity
Plaintiff also argues that when the ALJ proceeded to step five of the regulatory analysis, he did not properly determine plaintiff's residual functional capacity. (Pl.'s Br. at 7.) "Residual functional capacity" is the ability of a plaintiff to perform work in spite of his limitations. 20 C.F.R. § 404.1520(f). Here, ALJ Determan determined that plaintiff has the functional capacity to perform "light work." (R. at 19.) The definition of light work states:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.20 C.F.R. § 404.1567(b). This Court finds that ALJ Determan properly explained his finding of plaintiff's capability to perform light work and had substantial evidence in the record to support his finding.
As defined by the regulation light work requires that plaintiff be able to lift "no more than 20 pounds at a time," be able to frequently lift or carry objects weighing up to 10 pounds, and be able to walk or stand for a good part of the day. 20 C.F.R. § 404.1567(b). Dr. Danza's report found that plaintiff could "lift and/or carry fifty pounds occasionally, twenty-five pounds frequently" and could stand, walk, and sit for up to six hours in an eight-hour day. (R. at 328.) Dr. Kheyfets agreed with Dr. Danza's assessment. (R. at 334.) Upon his two admissions to the hospital, plaintiff was evaluated and the doctors did not find any problems with his ability to stand, walk, or lift objects. (R. at 97, 379.) Dr. Paisley did state that he did not think plaintiff was "capable of performing in the labor market." (R. at 324.) ALJ Determan, however, did not need to give controlling weight to the statement; such decisions of capability are reserved to the ALJ. 20 C.F.R. § 404.1527(e)(3). In addition, Dr. Paisley's statement was inconsistent with substantial evidence in the record, including his own report that plaintiff's body systems were "essentially normal." (R. at 323.) Therefore, this Court finds that the ALJ's decision that plaintiff is able to perform light work is backed by substantial evidence.
5. Vocational expert testimony
Finally, plaintiff argues that the ALJ failed to take testimony of a vocational expert as required by Sykes v. Apfel, 228 F.3d 259 (3d Cir. 2000), to show that there are jobs in the national economy that he can perform given his impairments.
Generally, an ALJ is not required to use a vocational expert at step five. See C.F.R. § 404.1566(e). He need only rely on "competent evidence", which does not necessarily need to be the opinion of a vocational expert, to determine whether the claimant can perform sedentary work. See Gilliand v. Heckler, 786 F.2d 178, 183 (3d Cir. 1986). If the plaintiff does not have any significant non-exertional impairments, then the ALJ may use vocational grids to determine whether jobs exist in the national economy instead of using a vocational expert. Santise v. Schweiker, 676 F.2d 925 (3d Cir. 1982). As a result, where the claimant has a purely exertional impairment and the Medical-Vocational Guidelines call for a finding of disability, the ALJ is bound by the finding. Cooper v. Sullivan, 880 F.2d 1152, 1156-57 (9th Cir. 1989); Green v. Schweiker, 749 F.2d 1066, 1072 (3d Cir. 1984).
If, however, the plaintiff suffers from both exertional and nonexertional limitations, then the ALJ must consider the testimony of a vocational expert or "other similar evidence, such as a learned treatise" to establish that there are jobs in the national economy that someone with the claimant's combination of impairments can perform. Sykes v. Apfel, 228 F.3d 259, 273 (3d Cir. 2000).
Exertional impairments involve limitations on a claimant's ability to meet the seven possible strength requirements of a job: sitting, standing, walking, lifting, carrying, pushing, and pulling. 20 C.F.R. § 404.1545(b); S.S.R. 96-4p. Non-exertional impairments involve limitations such as postural, manipulative, or environmental impairments that do not affect a claimant's physical strength but may nevertheless prevent him from engaging in substantial gainful employment. 20 C.F.R. § 404.1545(d).
Dr. Anthony L. Danza, the state agency review physician, who found that plaintiff's only nonexertional limitations were to avoid hazards and to not climb or balance on ramps, ropes, stairs, ladders, or scaffolds. (R. at 329-31.) However, Social Security Rulings establish that such limitations do not require the ALJ to consider vocational expert testimony. Social Security Rule 83-14 states that "where it is clear that the additional limitation or restriction has very little effect on the exertional occupational base, the conclusion directed by the appropriate rule in [the grid] would not be affected." The Ruling states, as an example of a limitation that would have "very little or no effect on the unskilled light occupational base" is the "inability to ascend or descend scaffolding, poles, and ropes." S.S.R. 83-14. Likewise, functional ability is "not impaired" by an environmental restriction such as staying away from "dangerous moving machinery, or unprotected elevations."Id. This is because "[r]elatively few jobs in the national economy require ascending or descending ladders and scaffolding."Id.; see also S.S.R. 85-15 (stating that restrictions on climbing and balancing do not alone have a "significant impact on the broad world of work").
Here, therefore, ALJ Determan appropriately exercised his discretion when he decided to apply the vocational grids to plaintiff's case. As a result, this Court cannot grant plaintiff the relief he seeks.
III. CONCLUSION
This Court finds that the ALJ's determination that the plaintiff is able to perform the requirements of light work and is therefore "not disabled" under the Act is supported by substantial evidence. Accordingly, the Commissioner's decision denying the Plaintiff's Disability Insurance Benefits and Supplemental Security Income Benefits is affirmed. The accompanying Order is entered.
ORDER
This matter having come before the Court upon plaintiff Anthony Baker, Sr.'s application to review the final decision of the Commissioner of the Social Security Administration denying his application for Disability Insurance Benefits under Title II of the Social Security Act and for Supplemental Security Income Benefits under Title XVI of the Act; and this Court having considered the record and the submissions of the parties; and for the reasons stated in the Opinion of today's date; and for good cause shown;IT IS on this day of October, 2002, hereby
ORDERED that the plaintiff's appeal be, and hereby is DENIED ; and
IT IS FURTHER ORDERED that the final decision of the Commissioner be, and hereby is, AFFIRMED.