Opinion
No. NA99-0135-C-H/S
July 24, 2000.
ENTRY ON PETITION FOR JUDICIAL REVIEW
Plaintiff Daniel L. Cage seeks judicial review of the denial of his application for disability insurance benefits under Title II of the Social Security Act. An Administrative Law Judge found that Mr. Cage, despite severe back problems for which he has undergone several surgeries, retained the ability to perform sedentary work so long as it allowed him to stand and stretch every hour. For the reasons explained below, the Commissioner's decision is remanded for further consideration.
Background
Mr. Cage was born on December 1, 1954. He was a high school graduate and worked as a mill operator until June 1995. On April 5, 1996, Mr. Cage filed an application for disability insurance benefits alleging he had been disabled since June 30, 1995. His application was denied both initially and on reconsideration. Mr. Cage then requested an administrative review of his application.
Mr. Cage and his attorney appeared before Administrative Law Judge Michael Nichols.
Vocational expert Constance Brown also testified at the hearing. The ALJ denied Mr. Cage's application. The Appeals Council denied Mr. Cage's request for review on May 28, 1999, making the ALJ's decision the final decision of the Commissioner. Mr. Cage now seeks judicial review of the Commissioner's decision.
The record indicates that the ALJ issued his decision on September 27, 1997, which is two days before the record date of the hearing before the ALJ. See R. 22 (ALJ decision), 34 (hearing transcript); see also the table of contents in the record, which confirms these dates. The parties have not addressed the apparent discrepancy.
Disability and the Standard of Review
To be eligible for disability insurance benefits, Mr. Cage must establish that he suffered from a disability within the meaning of the Social Security Act. The Act defines "disability" as an inability to engage in substantial gainful activity by reason of a medically determinable impairment that can be expected to cause death or to last for twelve continuous months. See 42 U.S.C. § 423(d)(1)(A). Mr. Cage was disabled if his impairments were of such severity that he was unable to perform work he had previously done and if, based on his age, education, and work experience, he could not engage in any other kind of substantial work existing in the national economy. 42 U.S.C. § 423(d)(2)(A).
This standard is a stringent one. The Act does not contemplate degrees of disability or allow for an award based on partial disability. Stephens v. Heckler, 766 F.2d 284, 285 (7th Cir. 1985).
Substantial impairments do not necessarily entitle a claimant to benefits. Before tax dollars-including tax dollars paid by others who work despite serious and painful impairments-are available as disability benefits, it must be clear that the claimant has a severe impairment and cannot perform virtually any kind of work. Under the stringent statutory standard, these benefits are available only as a matter of nearly last resort.
The ALJ followed the familiar five-step analysis set forth in 20 C.F.R. § 404.1520 to determine whether Mr. Cage was disabled under the Social Security Act. The steps are as follows:
(1) Is the claimant engaging in substantial gainful activity? If so, he or she is not dis-abled.
(2) If not, does the claimant have an impairment or combination of impairments that are severe? If not, he or she is not disabled.
(3) If so, does the impairment(s) meet or equal a listed impairment in the appendix to the regulations? If so, the claimant is disabled.
(4) If not, can the claimant do his or her past relevant work? If so, he or she is not disabled.
(5) If not, can the claimant perform other work given his or her residual functional capacity, age, education, and experience? If so, then he or she is not disabled. If not, he or she is disabled.
See generally 20 C.F.R. § 404.1520. When applying this test, the burden of proof is on Mr. Cage for the first four steps and on the Commissioner for the fifth step, if the analysis proceeds that far. Young v. Secretary of Health and Human Services, 957 F.2d 386, 389 (7th Cir. 1992).
The ALJ found that Mr. Cage satisfied step one because he had not engaged in substantial gainful activity since June 1995. The ALJ also found that Mr. Cage satisfied step two because the objective medical evidence established that he suffered from vertebrogenic disorders that more than minimally interfered with his ability to perform basic work activities. The ALJ found, however, that Mr. Cage failed to satisfy step three because the severity of his back problems did not meet or equal any of the criteria in the listing of impairments. At step four, the ALJ found that Mr. Cage was not able to perform his past relevant work, so he moved on to consider whether Mr. Cage's residual functional capacity prevented him from working in other occupations.
The ALJ concluded that Mr. Cage was able to perform sedentary work with certain restrictions.
The ALJ also found that Mr. Cage needed to work in a job that permitted him to stand every hour to relieve his back pain. Based on this assessment, the vocational expert found that Mr. Cage could work as a cashier, bookkeeper, accounting and auditing clerk, cost and rate clerk, investigator, and adjuster, assuming Mr. Cage would not need more than five minutes to rest his back every hour. The vocational expert testified that there were a total of nearly 2,700 of these jobs in Indiana, constituting a significant number of jobs in the economy. The ALJ relied on this testimony to conclude that Mr. Cage was not disabled under the Act. Mr. Cage challenges several aspects of the ALJ's decision as not supported by substantial evidence or contrary to law.
The Social Security Act provides for judicial review of the Commissioner's denial of benefits. 42 U.S.C. § 405(g). Because the Appeals Council denied further review of the ALJ's findings, the ALJ's findings are treated as the findings of the Commissioner. Henderson v. Apfel, 179 F.3d 507, 512 (7th Cir. 1999); Luna v. Shalala, 22 F.3d 687, 689 (7th Cir. 1994). If the Commissioner's findings of fact are supported by substantial evidence, the findings must be upheld by a reviewing court. 42 U.S.C. § 405(g); Maggard v. Apfel, 167 F.3d 376, 379 (7th Cir. 1999). Substantial evidence is evidence that "a reasonable mind would accept as adequate to support a conclusion." Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997). Substantial evidence review is deferential but should not be a rubber-stamp. The court must examine the evidence that favors Mr. Cage as well as the evidence that supports the Commissioner's conclusion. Nelson v. Apfel, 131 F.3d 1228, 1237 (7th Cir. 1997). "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is entitled to benefits," however, the court must defer to the Commissioner's resolution of that conflict. Binion, 108 F.3d at 782. The Commissioner's conclusions of law are not entitled to deference, so "if the Commissioner commits an error of law, reversal is required without regard to the volume of evidence in support of the factual findings." Id.
Discussion
I. ALJ's Assessment of Mr. Cage's Credibility and Complaints of Pain
Mr. Cage argues that the ALJ improperly assessed his complaints of pain in discrediting his testimony that his back problems prevented him from working. In his decision, the ALJ stated, "I have no doubt that the claimant has pain or that it limits his activity level. However, given the record as a whole, I cannot credit his claim that he is completely and totally disabled from all work activity." R. 19. The Social Security regulations set forth a two-part test for determining whether complaints of symptoms such as pain contribute to a finding of disability. First, the claimant must provide objective medical evidence of a medically determinable impairment or combination of impairments that reasonably could be expected to produce the symptoms alleged. 20 C.F.R. § 404.1529(a) (b). Second, once the ALJ has found an impairment that reasonably could cause the symptoms alleged, the ALJ must consider the intensity and persistence of those symptoms. 20 C.F.R. § 404.1529(c). Objective medical evidence is not necessary to support allegations of the extent of the claimed symptoms, but neither ALJs nor the courts are "required to give full credit to every statement of pain, and require a finding of disabled every time a claimant states that she feels unable to work." Rucker v. Chater, 92 F.3d 492, 496 (7th Cir. 1996), quoting Pope v. Shalala, 998 F.2d 473, 486 (7th Cir. 1993); accord, 20 C.F.R. § 404.1529(d).
In this case, Mr. Cage came forward with extensive objective medical evidence of conditions that reasonably could cause the severe pain he described in his testimony. The record is replete with documentation of his back problems, the repeated surgeries, and the other treatments designed to alleviate his pain. Thus, the focus here is on the second phase of the inquiry, the "intensity and persistence" of Mr. Cage's pain symptoms.
Social Security Ruling 96-7p specifies several factors an ALJ should consider in evaluating a claimant's subjective complaints of pain and other symptoms, including:
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 pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received for the relief of pain and other symptoms;
6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
SSR 96-7p; 20 C.F.R. § 416.929(c)(3).
When a claimant complains of pain or other subjective symptoms, the ALJ must make a particular finding regarding the credibility of the claimant's statements about his symptoms and their functional effects. SSR 96-7p. An ALJ must state "specific reasons for the finding on credibility, supported by the evidence in the case record, [which] must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight." Id.
The Seventh Circuit has repeatedly recognized that "an ALJ's credibility determination will not be disturbed unless it is patently wrong." Diaz v. Chater, 55 F.3d 300, 308 (7th Cir. 1995), citing Pope v. Shalala, 998 F.2d 473, 487 (7th Cir. 1995); see also Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000) ("Because hearing officers are in the best position to see and hear the witnesses and assess their forthrightness, [reviewing courts] afford their credibility determinations special deference."). The Seventh Circuit has also explained, however, that for an ALJ's credibility decision to remain undisturbed on appeal, it must have "some support in the record." Herron v. Shalala, 19 F.3d 329, 335 (7th Cir. 1994).
Moreover, the court must critically review the evidence as a whole and must set aside the ALJ's decision if his findings of fact are unreliable because of serious mistakes or omissions. Sarchet v. Chater, 78 F.3d 305, 309 (7th Cir. 1996).
The issue here is whether the ALJ's decision to discredit Mr. Cage's testimony that his pain is so severe as to be disabling is supported by substantial evidence in the record. The medical records show plainly that Mr. Cage suffered from serious back problems that could cause disabling pain. Mr. Cage's back condition was severe enough to warrant multiple surgeries after earlier, more conservative treatments were attempted. After the operations proved unsuccessful, Mr. Cage also underwent spinal injections, medication treatment, and physical therapy to help him deal with his back problems. The records of diagnois and treatment show that Mr. Cage's back problems are serious. The dispute in this case is over the severity of the pain that Mr. Cage suffered. Mr. Cage testified that his back pain was so severe that he believed it precluded him from working. The ALJ disagreed and discredited Mr. Cage's testimony.
In making his decision to discredit, at least to some important extent, Mr. Cage's subjective complaints of pain, the ALJ considered Mr. Cage's daily activities. The ALJ concluded that his activities were "manifestly inconsistent with being disabled." R. 20. The ALJ noted that Mr. Cage did most of the domestic chores such as cooking and shopping, mowed the lawn with a riding mower, and made candles. R. 20. These basic activities are not necessarily "manifestly inconsistent" with an individual suffering from disabling back pain. Mr. Cage testified that he was able to do these things but needed to lie down for extended periods of time after performing many of these activities. For example, Mr. Cage testified that it too him all day to mow his lawn, that an unimpaired person could do the job in an hour and a half, and that he could not do the job two days in a row. See R. 48, 52-53. If Mr. Cage could perform these basic activities only by lying down for extended periods of time during and after them, then his testimony about his daily activities is not, and the activities are not, "manifestly inconsistent" with his suffering from disabling back pain.
The ALJ decided to reject Mr. Cage's claim that he needed to lie down for periods of time during the day based in large part on his observations of Mr. Cage during his hearing. The ALJ found that Mr. Cage showed no outward signs of pain or discomfort and did not need to lie down during the six hour period prior to and during the hearing. Based on his observations, the ALJ stated that he had "good reason to doubt [Mr. Cage's] allegation that he needs to lie down ten times a day." R. 20. In Powers v. Apfel, the Seventh Circuit recognized that such observations could support a credibility determination on pain, but must be used with caution:
Finally, the hearing officer considered Powers' statement that she could not sit for more than ten minutes without severe pain to be inconsistent with his observation of her during the hearing, at which she sat for far longer than ten minutes, apparently without signs of discomfort. Many courts have condemned the "sit and squirm" test, and we are uncomfortable with it as well. See, e.g., Miller v. Sullivan, 953 F.2d 417 (8th Cir. 1992); Myers v. Sullivan, 916 F.2d 659 (11th Cir. 1990); Jenkins v. Sullivan, 906 F.2d 107 (4th Cir. 1990); Lovelace v. Bowen, 813 F.2d 55 (5th Cir. 1987). We doubt the probative value of any evidence that can be so easily manipulated as watching whether someone acts like they are in discomfort. However, we note that even those courts cited by Powers as opposing the "sit and squirm" test endorse the validity of a hearing officer's observations of the claimant. See Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992); Miller, 953 F.2d at 422; Lovejoy v. Heckler, 790 F.2d 1114, 1116 (4th Cir. 1986); Lovelace, 813 F.2d at 60. Likewise, we have repeatedly endorsed the role of observation in determining credibility and refuse to make an exception in this situation. See, e.g., Dray v. Railroad Retirement Bd., 10 F.3d 1306, 1314 (7th Cir. 1993); [Ehrhart] v. Secretary of Health and Human Servs., 969 F.2d 534, 541 (7th Cir. 1992); Strunk v. Heckler, 732 F.2d 1357, 1362 (7th Cir. 1984). The hearing officer had an opportunity to observe Powers for an extended period of time and could gauge whether her demeanor, behavior, attitude and other characteristics suggested frankness and honesty and were consistent with the general bearing of someone who is experiencing severe pain. Also, because the witness showed no signs of pain, there is no danger that she attempted to manipulate the hearing officer by squirming. As one of several factors that contributed to the hearing officer's credibility determination, we cannot say this rendered that judgment "patently wrong." Therefore, we will uphold the hearing officer's credibility determination as supported by substantial evidence.
Powers v. Apfel, 207 F.3d at 436.
In this case, however, unlike Powers, Mr. Cage relies on medical evidence specifically addressing his need to lie down. This evidence came from a treating physician, Dr. John Quakenbush. In a physical capacities evaluation, Dr. Quakenbush found that Mr. Cage required complete freedom to rest frequently without restriction and lie down for substantial periods of time during the day. R. 275. There is no medical evidence in the record from a treating physician that refutes Dr. Quakenbush's finding. Although a treating physician's opinion is not always controlling, of course, the ALJ's observations of Mr. Cage during the hearing do not constitute substantial evidence to support his decision to reject the medical evidence on this point.
In evaluating Mr. Cage's subjective complaints of pain, the ALJ also considered the treatments and medication that Mr. Cage used to alleviate his back pain. The ALJ found that Mr. Cage had "received only conservative treatment (e.g., medication, TNS unit, epidural steroid injections, physical therapy) since his last operation." R. 20.
The ALJ's reliance on the so-called "only conservative treatment" does not reflect a fair view of the record as a whole here. Mr. Cage had already undergone several operations on his back with limited success when he and his doctors chose not to try further operations. Mr. Cage's willingness to undergo multiple unsuccessful procedures on his back does not show that more recent reliance on "only conservative treatment" undermines the credibility of his complaints of pain.
Mr. Cage's doctors gave him the option of continuing with these nonoperative treatment techniques or undergoing another surgical procedure. Dr. John L. Beghin told Mr. Cage that he could attempt a procedure to salvage Mr. Cage's failed bone fusion by performing an additional fusion. However, Dr. Beghin told Mr. Cage that there were a number of risks involved in such a procedure with no guarantee that it would relieve his back pain. Dr. Beghin also told Mr. Cage that there was still the potential for improvement with "continued nonoperative care." R. 220. Given the advice Mr. Cage received from his physicians and the fact that similar procedures proved ineffective in the past, the ALJ could not reasonably fault Mr. Cage for choosing to undergo injections and physical therapy as alternatives to additional surgery.
It is also important to note that while the medical and physical therapy reports may be read as showing some degree of improvement as a result of these nonsurgical treatments, not one of these reports states that Mr. Cage was able to return to work. The reports from Mr. Cage's doctors and therapists show that he experienced good days and bad days, which is consistent with Mr. Cage's testimony at the hearing. R. 51-52. Despite the fact that his medical reports show that Mr. Cage did experience less pain on some days, the reports do not suggest that Mr. Cage's condition had improved to the point that he could return to any type of employment. While the absence of such a statement in these reports does not necessarily mean that Mr. Cage's doctors and therapists believed he was not able to work, in a case as severe as this one, involving repeated unsuccessful operations and a patient who had been off work for a long time, the absence of any mention of returning to work in his medical records is certainly a factor to consider in evaluating Mr. Cage's subjective complaints of pain.
The ALJ also should have considered Mr. Cage's work history in evaluating his claim that he was unable to work. See 20 C.F.R. § 404.1529(c)(3); Nunn v. Heckler, 732 F.2d 645, 648 (8th Cir. 1984), citing Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983); see also Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995) (ALJ properly considered that plaintiff quit working several years before the alleged onset of her disability). There is no indication in his opinion, however, that the ALJ did this.
After serving in the military, Mr. Cage took a position as a mill operator that he held until his back problems began. His earnings record shows long-term, substantial employment through most of his adult life. See R. 96; see also R. 38 (Mr. Cage testified he served in U.S. Marine Corps and had an unspecified felony conviction). He earned more than $60,000 during his last full year of work. R. 96. There is no evidence that Mr. Cage showed any aversion to working that would detract from the credibility of his claim that his back pain prevented him from working. The evidence in the record is to the contrary. Mr. Cage testified that he had difficulty accepting the idea that he was not able to work. R. 48. This long work history prior to the onset of back problems that everyone agrees are serious tends to corroborate Mr. Cage's testimony on the severity of his pain. Therefore, the ALJ should have considered Mr. Cage's work history in evaluating his testimony. Instead, the ALJ relied on evidence that Mr. Cage, who had been earning about $60,000 a year, was receiving disability benefits of about $21,600 a year from his former employer to conclude that he did not have "a strong incentive for him to return to work." R. 20.
In short, there is not substantial evidence in the record to support the ALJ's decision to discredit Mr. Cage's testimony about the severity of his back pain and his claim that he needed to lie down for periods of time to deal with his back pain. Based on the present record, the ALJ erred in rejecting Mr. Cage's testimony that he suffered from disabling back pain and needed to lie down for periods of time during the day to deal with this pain.
II. ALJ's Consideration of the Vocational Expert's Testimony
Even assuming that there were substantial evidence in the record to support the ALJ's decision on the severity of Mr. Cage's back problems, the ALJ still erred in his use of the vocational expert's testimony in the final step of his analysis. In questioning the vocational expert, the ALJ asked her to assume an individual with Mr. Cage's work history who needed to stand every hour "for a period sufficient to relieve his pain from sitting." R. 55. The vocational expert testified that Mr. Cage could perform some sedentary jobs if he only needed to stand for five minutes every hour, but if Mr. Cage needed to rest his back for 15 or 20 minutes, "that might cause a problem." Id. Assuming Mr. Cage could relieve his back pain by standing for five minutes every hour, the vocational expert testified that there were a substantial number of jobs in the economy that he could perform. Nowhere did the vocational expert testify that these jobs included a sit-stand option, meaning that Mr. Cage could perform them either sitting or standing, at his option. Cf. Peterson v. Chater, 96 F.3d 1015, 1016 (7th Cir. 1996) (noting that jobs with sit-stand option are "typically professional and managerial" jobs, quoting SSR 83-12).
The ALJ concluded that Mr. Cage could perform a job in which he could sit for six hours and stand or walk for two hours during an eight-hour workday. R. 21. Such a job would require a sit-stand option enabling Mr. Cage to continue to work during the two hours he was standing or walking during the day. The vocational expert never testified, however, that the jobs Mr. Cage could perform included such a sit- stand option. The jobs that the vocational expert testified about would require Mr. Cage to sit for eight hours during the workday, not six hours, with only five-minute breaks every hour to stand up and relieve his back pain. The ALJ's decision on Mr. Cage's ability to perform a significant number of jobs in the economy is therefore inconsistent with the testimony of the vocational expert and is not supported by substantial evidence in the record.
Conclusion
There is insufficient evidence in the record to support the ALJ's decision to discredit Mr. Cage's claims regarding the severity of his back pain and his need to lie down to deal with this pain. The ALJ's decision regarding the availability of employment given Mr. Cage's functional limitations is also not supported by substantial evidence in the record. Therefore, the court is remanding this case to the Commissioner for further consideration of Mr. Cage's pain and his need to lie down for periods of time during the day. Additional testimony from a vocational expert may also be required to determine accurately whether a significant number of jobs exist in the economy that Mr. Cage could perform given his residual functional capacity. Final judgment will be entered immediately.
FINAL JUDGMENT
The court having issued on this day its Entry on Judicial Review in this cause, now ORDERS, ADJUDGES, AND DECREES that, pursuant to the fourth sentence of 42 U.S.C. § 405(g), the Commissioner's denial of benefits is REMANDED to the Social Security Administration, Office of Hearings and Appeals for further proceedings consistent with the court's Entry on Judicial Review.