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holding that the ALJ's RFC findings were inadequate because he did not evaluate the claimant's abilities on a "function-by-function" basis, or assess the claimant's capacity to work on a "regular and continuing" basis
Summary of this case from Sullivan v. Commissioner of Social SecurityOpinion
01-CV-2962 (JG)
April 15, 2002
EDDY PIERRE PIERRE
Binder and Binder, New York, NY. Attorney for Plaintiff
ALAN VINEGRAD
United States Attorney, Eastern District of New York, Brooklyn, New York., By: David Goldberg, Assistant United States Attorney. Attorney for Defendant
MEMORANDUM AND ORDER
This action seeks review of the Commissioner of Social Security's denial of disability benefits. The Commissioner has moved for a judgment on the pleadings affirming the denial of benefits. The plaintiff has cross-moved for an award of benefits or, in the alternative, for a remand for further proceedings. For the reasons discussed below, the Commissioner's motion is denied, and the cross-motion is granted to the extent that the case is remanded to the Social Security Administration for further proceedings consistent with this opinion.
BACKGROUND
A. Plaintiff's Personal and Work History
Venus Brown is a 54-year-old female who lives with her mother in Queens, New York. Her husband died in 1992, and she has one child. (R. 56.) Brown worked as a housekeeper at the Hotel DuPont in Wilmington, Delaware, for approximately fifteen years in the 1970s and 1980s, before going to work as a data entry operator in 1990 or 1991, for less than a year. She then stopped working, for reasons unrelated to her alleged disability, and apparently has not worked since May 1993 because of her medical problems with her back and legs. (R. 57.)
Citations following "R." are to the administrative record.
B. Procedural History
Brown filed applications for disability insurance benefits and Supplemental Security Income benefits on June 15, 1993. (R. 55-57, 78-81.) Her applications were denied initially on September 24, 1993 (R. 58, 67-70, 82), and upon reconsideration on January 13, 1994. (R. 74-77.) Brown then requested a hearing, which took place on March 1, 1995, with Brown represented by counsel. (R. 46.)
In a written decision dated January 23, 1996, the ALJ concluded that Brown was not disabled. (R. 43-48.) On October 3, 1997, the Appeals Council granted plaintiff's request for a review of the ALJ's decision, based on newly submitted evidence, and remanded the case to the ALJ for further proceedings. (R. 221-23.) The ALJ held another hearing on April 22, 1998 (R. 344-66), and issued a second decision on July 9, 1998, also denying benefits. (R. 20-31.) On March 16, 2001, the Appeals Council denied plaintiff's request for a review of the ALJ's decision, making the ALJ's July 9, 1998 decision the final decision of the Commissioner. (R. 3- 4.)
Brown subsequently filed her complaint in this action. The Commissioner has moved for judgment on the pleadings affinning the denial of benefits. In a cross-motion, Brown asked that I direct an award of benefits, or, in the alternative, remand for further development of the administrative record. Because I find that the ALJ's step four disability determination is infected with legal error, I remand to the Commissioner for further development of the administrative record and proper application of the relevant legal standards.
DISCUSSION
A. The Standard of Review
Under the Social Security Act, a disability is an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The Social Security Administration follows a five-step procedure in evaluating disability applications:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not the [Commissioner] next considers whether the claimant has a "severe impairment" [that] significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment . . . listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience. . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work [that] the claimant could perform.Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000) (quoting Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999)).
B. The Step Four Disability Determination
Brown contends that the ALJ's decision at step four — that she could return to her past relevant work — was infected by legal error. I agree for three reasons: (1) the ALJ failed to apply the treating physician rule; (2) the ALJ did not properly determine the claimant's "past relevant work"; and (3) in assessing the claimant's residual functional capacity, the ALJ improperly discredited Brown's testimony, and failed to conduct the analysis on a "function-by-function" basis or on a "regular and continuing" basis.
1. The Treating Physician Rule
From 1993 to 1998, Brown was treated regularly at the Queens Hospital Center orthopedic clinic. Over the years, she saw several different doctors at the clinic. (Plaintiff's Memorandum of Law, at 13.) Dr. Stafford D. John, the doctor at Queens Hospital Center who provided a medical report dated April 9, 1998 for the administrative proceedings, indicated that he has treated plaintiff since 1994. (R. 333.) In his report, Dr. John opined that plaintiff was not capable of returning to her past work as a housekeeper because she could not lift heavy objects or stand for prolonged periods. (R. 333.) In his functional assessment, Dr. John indicated that plaintiff could sit for up to two hours, stand and/or walk for up to two hours, and lift and/or carry up to five pounds frequently, and up to 20 pounds occasionally. (R. 334.)
"The law gives special evidentiary weight to the opinion of the treating physician." Clark v. Commissioner, 143 F.3d 115, 118 (2d Cir. 1998). Specifically, the Social Security Administration ("SSA") regulations state the following:
Generally, we give more weight to opinions from your treating sources . . . . If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight. When we do not give the treating source's opinion controlling weight, we apply [various factors] in determining what weight to give the opinion. We will always give good reasons in our notice of determination or decision for the weight we give [a claimant's] treating physician's opinion.20 C.F.R. § 404.1527(d)(2) and 416.927(d)(2).
The factors that an ALJ must apply when a treating physician's opinion is not given controlling weight include: "(i) the frequency of the examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion's consistency with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other relevant factors." Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998) (citing 20 C.F.R. § 404.1527(d)(2) and 416.927(d)(2)).
Since Dr. John was the treating physician, the ALJ was bound to give that opinion controlling weight if it was "well-supported by medically acceptable clinical and laboratory diagnostic techniques and [was] not inconsistent with other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2) and 416.927(d)(2). I conclude that the ALJ improperly declined to accord Dr. John's opinion controlling weight.
In his decision, the ALJ decided to give Dr. John's opinion and assessment "little weight" for two reasons: (1) alleged inconsistencies in his report; and (2) a lack of supporting evidence. On the first point, the alleged inconsistencies refers to a residual functional assessment checklist filled out by Dr. John where he checked the box indicating that the claimant had difficulty with low levels of stress, but did not check the box indicating that the claimant had difficulty with moderate levels of stress. (R. 27; citing Exhibit 30, at R. 335.) The ALJ refers to this as a "clearly inconsistent set of answers." It was improper for the ALJ to accord significant weight to this inconsistency. If anything is clear about this "set of answers," it is that it is the product of an innocent mistake by an undoubtedly busy medical professional. Any doubt should have been resolved by contacting the doctor for clarification.
Second, the lack of supporting evidence is simply untrue. The ALJ himself, in his written decision, reviews the extensive supporting evidence from Queens Hospital Center, where Dr. John works. (R. 25-26.) This evidence includes 1993 X-rays showing a "disc space narrowing" and 1993 evidence of back spasms; EMG/nerve conduction studies in 1994 and 1995 suggesting "bilateral lumbosacral posterior rami involvement"; and a 1995 MRI of the lumbar spine, showing "mild to moderate degenerative changes" and "posterior bulging discs." Yet, after recounting all this evidence in his written decision, the ALJ gave it little weight, and accorded greater weight to the opinions of other physicians such as Drs. Smith and Kurzner, who performed consultative exams for the SSA and reached different conclusions than the treating physicians.
Although one of the SSA's consultative physicians, Dr. Seo, made findings consistent with disability, Dr. Seo's findings are not mentioned in the ALJ's written decision. ("Functionally, due to spasm of the paraspinal muscles, presently, she has difficulty standing, walking, bending and lifting heavy objects.") (Examination dated August 31, 1993; report at R. 117.)
If the "treating physician rule" is to have any meaning, it must come into play in situations like this one, where different physicians come to different conclusions, and the question is how much weight to accord the opinion of each physician. Here, the bulk of the evidence from the treating physicians, Drs. John and Murmane, supports a finding of disability; the bulk of the reports from consultative physicians may not. In such a case, the treating physician rule mandates that treating physicians' opinions outweigh those of non-treating physicians if the opinions are "well supported by medical findings and not inconsistent with other substantial record evidence." Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000). This does not mean the treating physicians' opinions must be perfectly consistent with other evidence; rather, they must simply be "not inconsistent" with other substantial record evidence.
In addition, once the ALJ declined to give Dr. John's opinion controlling weight, it was necessary for him to determine how much weight to give it. As stated above, the ALJ was required to "apply [various factors] in determining the weight to give the opinion." 20 C.F.R. § 404.1527(d)(2) and 416.927(d)(2)). The record provides no assurance that the ALJ considered the relevant factors. Specifically, there is no indication that the ALJ considered the first — and perhaps most critical — factor, "the frequency of the examination and the length, nature and extent of the treatment relationship." In his written decision, the ALJ never mentions Dr. John's status as a treating physician, and there is no indication that the ALJ explored the extent of the treatment relationship any further than at the second hearing, where the claimant indicated that she goes to the Queens Hospital clinic about three or four times a month, sees different doctors at this clinic, and that Dr. John of the clinic treats her for her back and leg problems. (R. 348-49, 352.)
2. Past Relevant Work
The ALJ also erred in failing to determine what is the claimant's "past relevant work." The ALJ concluded that the work of a housekeeper was considered "light work" and the work of a data entry operator "sedentary work." Because he concluded that the claimant was capable of doing light work, he ruled that she had the residual functional capacity to return to her past work. (R. 25.)
Work experience is considered "relevant" for these purposes "when it was done within the last 15 years, lasted long enough for [the claimant] to learn to do it, and was substantial gainful activity." Melville v. Apfel, 198 F.3d 45, 53 (2d Cir. 1999) (quoting Social Security Ruling 82-62, 1982 WL 31386, at * 1). The record indicates that Brown worked for less than a year, and possibly for no more than a few months, as a data entry operator, after working for approximately fifteen years as a housekeeper. (R. 100, 354-55.)
I cannot conclude that there is substantial evidence supporting the ALJ's implicit conclusion that both of Brown's past jobs constituted "past relevant work" because there is nothing in the ALJ's opinion indicating that he even considered this question. There is no discussion of whether Brown held the job of data entry operator long enough to learn the necessary skills, or whether her work was of such a brief duration that it could not be considered relevant" The ALJ had a duty to develop the record on these questions and analyze them. The fact that he did not constitutes legal error.
Although I agree with Brown up to this point, I disagree with her contention that I should remand solely for the calculation of benefits. "`Where there are gaps in the administrative record or the ALJ has applied an improper legal standard, we have, on numerous occasions, remanded to the Commissioner for further development of the evidence.'"Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (quoting Pratt v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (internal alteration omitted)). The only exception is where the court concludes that there is "no apparent basis to conclude that a more complete record might support the Commissioner's decision." Id. at 83. I do not find this exception applicable in this case because it is possible that a more complete record on this point could demonstrate, for example, that Brown worked long enough to learn how to conduct data entry. As the Second Circuit noted in a case also addressing whether past job experience constituted past relevant work, "it is not within the proper scope of review for a court to address those questions in the first instance or de novo." Melville, 198 F.3d at 54; see also Rosa, 168 F.3d at 83 ("This case, in our view, is one in which remand for further development of the evidence is the wiser course.").
3. Residual Functional Capacity Assessment
On remand, the ALJ could properly apply the "treating physician rule," properly determine the claimant's "past relevant work," and, potentially, draw the same conclusions about the claimant's residual functional capacity. Therefore, without drawing any specific conclusions about the claimant's residual functional capacity, I must point out that the ALJ committed legal error in evaluating this issue as well.
a. The ALJ Improperly Discredited Brown's Testimony
In finding that Brown could engage in light work, the ALJ discredited Brown's testimony. I recognize that "[i]t is the function of the Commissioner, not [the reviewing courts], to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant" Aponte v. Secretary, Dep't of Health and Human Serv's, 728 F.2d 588, 591 (2d Cir. 1984) (second alteration in original) (quotation omitted). Nonetheless, the ALJ's negative assessment of Brown's credibility was in part premised upon evidence that was not substantial or even relevant, or constituted a mischaracterization of the record.
For the proposition that the medical reports undermine the claimant's credibility, the ALJ cited the testimony of the medical expert who appeared at the hearing, Dr. Richard Goodman, as indicating that Brown's complaints of chronic pain were not "supported by the objective findings." (R. 28.) However, this mischaracterizes Dr. Richard Goodman's testimony; indeed, he indicated several times that the claimant's pain was "well-documented." (R. 356, 358, 360.) The ALJ also appears to have placed weight on the difference between the claimant's representation that she has a "dislocated disc" and the medical record that she has only "bulging discs." This sort of discrepancy hardly warrants the inference that Brown was lying.
b. The ALJ's Findings Were inadequate to Support His Conclusion that Brown Could Return to Her Past Work
The ALJ's findings on residual functional capacity were inadequate in two significant ways — he did not evaluate the claimant's capacity to do her past work on a "function- by-function" basis, or on a "regular and continuing" basis. See Policy Interpretation Ruling Tides II and XVI: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8p, at 1996 WL 374184 (S.S.A. July 2, 1996).
The ALJ's analysis of Brown's past job functions in his written decision is as follows:
Dr. Siegel, the vocational expert, testified that the claimant's prior work as a housekeeper was light, unskilled work, and her work as a data entry operator was sedentary, semiskilled work. In her former job as a data entry operator and a supervisory housekeeper, as performed by the claimant, Ms. Brown was not required to lift more than twenty pounds or perform any strenuous activities. Because Ms. Brown's past relevant work did not require the performance of work activities precluded by her medically determinable impairment, she is able to return to the type of work she performed in the past as a supervisory housekeeper and data entry operator.
(R. 29-30.)
In the papers she filed with the SSA on June 15, 1993, Brown indicated that a typical day in her past work involved seven hours a day of walking, two hours of standing, and three hours of sitting. (R. 100.) The judge's findings on her functional capacity consisted of a finding that Brown was "not able to lift and carry more than twenty pounds" and that Brown had the "non-exertional limitation in frequent bending" which he determined "only minimally narrows the range of light or sedentary work she can perform." (R. 25.) Among other factors, he made no findings on the capacity of the claimant for sitting, standing, or walking. These findings are plainly inadequate to support a finding that she retained the residual functional capacity to do her past work as a housekeeper or data entry operator.
I assume Brown was describing her work as a housekeeper.
SSA regulations specify that the ALJ must do a "function-by-function" analysis of the claimant's capacity to do her past work before classifying the claimant's capacity to work according to exertional categories. See SSR 96-8p, 1996 WL 374184, at *1 ("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 paragraph (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.").
1. Sitting
The ALJ made no findings on the amount of time that Brown could sit per day, a function that is obviously relevant to work as a data entry operator. Dr. John, the treating physician, limited the claimant to 0-2 hours, sitting and standing, in a full eight-hour workday. (R. 362.) Even Dr. Smith, a consultative physician upon whom the ALJ relies, indicated that the claimant could not sit for more than four to six hours total in an eight-hour workday. (R. 330.)
In failing to do an adequate function-by-function assessment first, the ALJ erred, leading to the consequences predicted in the regulation. See SSR 96-8p, 1996 WL 374184, at *3 ("[A] failure to first make a function-by-function assessment of the individual's limitations or restrictions could result in the adjudicator overlooking some of an individual's limitations or restrictions. This could lead to an incorrect use of an exertional category to find that the individual is able to do past relevant work as it is generally performed and an erroneous finding that the individual is not disabled.").
Moreover, the ALJ did not mention the observations of the SSA interviewer on June 15, 1993, when Brown initially applied for benefits. The interviewer observed in the report: "Clint was in noticeable discomfort while seated for a period lasting approx 45 min -1 hr. She repositioned herself periodically." (R. 103.)
See SSR 96-7p, at *5 ("The adjudicator must also consider any observations about the individual recorded by Social Security Administration (SSA) employees during interviews, whether in person or by telephone.").
ii. Standing/Walking
The ALJ also made no findings on the amount of time that Brown could stand per day, although the claimant testified at the hearing that she could now only stand for a half-hour at a time. (R. 351.) Dr. Seo, one of the SSA's consultative physicians, found that Brown had difficulty standing, walking, and bending, but the ALJ did not mention these findings in his written decision. (Examination dated August 31, 1993; report at R. 117.) Also, the ALJ did not mention in his written decision what he learned at the second hearing — that Brown had been using a cane given to her by the Queens Hospital orthopedic clinic in 1993 or 1994. She had the cane with her at the hearing, indicated that she used it every day, and also indicated that she wore a back brace daily as recommended by one of her treating physicians. (R. 350, 352-53.) Finally, the ALJ improperly used the different answers given by the plaintiff in three different years — 1993, 1995, and 1998 — about how long she can walk without pain as evidence of a lack of credibility by the plaintiff. (R. 28.)
iii. "Regular and Continuing" Basis
After evaluating all the evidence, the ALJ noted that "[t]he question is not whether the claimant feels any pain — undoubtedly, she does — but rather to credit her claim that her back and legs hurt so much she cannot perform basic work activities." (R. 28-29.) Although the ALJ did not dispute that Brown had episodes of pain, he concluded that "the claimant's back discomfort occasionally flared up and became significant, but then resolved for extended periods." (R. 29.) This conclusion by the ALJ may be sound, but, without further findings, it violates SSA regulations on determining a claimant's capacity to do her past work.
Specifically, I conclude that the ALJ did not determine, explicitly or implicitly, whether the claimant had the capacity to work on a "regular and continuing basis," as required by the SSA. The first point in SSR 9-8p reads: "Ordinarily, RFC is an assessment of an individual's ability to sustain work-related physical and mental activities in a work setting on a regular and continuing basis. A `regular and continuing basis' means eight hours a day, for five days a week, or an equivalent work schedule."Id. Several district courts and Courts of Appeals have reversed decisions of the Commissioner for not evaluating RFC on this basis. See, e.g., Myers v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001); Bladow v. Apfel, 205 F.3d 356, 360 (8th Cir. 2000); Murray v. Apfel, 1998 WL 412639 (E.D.N.Y. 1998).
In sum, because the ALJ did not properly apply the legal standard in Social Security Ruling 96-8p for assessing residual functional capacity, I cannot properly conclude that his finding that the claimant retained the residual functional capacity to do her past work was supported by substantial evidence. Cf. Melville v. Apfel, 198 F.3d 45, 50 (2d Cir. 1999) (relying in part on SSA regulations and policy rulings in deciding whether step four was performed correctly by the ALJ). See also Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) ("Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles."); 2 Harvey L. McCormick, Social Security Claims and Procedures 504, 504 n. 1 (5th ed. 1998) (noting that the rule that Social Security regulations are binding on the courts, Schisler v. Sullivan, 3 F.3d 563 (2d Cir. 1993), also applies to Social Security Rulings (SSR)).
CONCLUSION
This case is remanded to the Social Security Administration for further proceedings consistent with this opinion. On remand, the Commissioner should ensure that the ALJ (1) properly applies the treating physician rule; (2) properly determines the claimant's "past relevant work"; and (3) in assessing the claimant's residual functional capacity, properly considers Brown's testimony, and conducts the analysis on a "function-by-function" basis and on a "regular and continuing" basis.
The Clerk is advised to enter judgment and close this case.