Opinion
Civil Action No. 04-11626-PBS.
May 5, 2005
MEMORANDUM AND ORDER
I. INTRODUCTION
Plaintiff Ramon Castillo-Mejia, who suffers from chronic back, shoulder, and knee pain, asks this Court to reverse the decision of the Commissioner of Social Security ("Commissioner") denying his claim for Social Security Disability benefits ("SSDI") under 42 U.S.C. § 405(g). He argues that (1) the Administrative Law Judge ("ALJ") was bound by a prior decision finding that plaintiff could not perform his past relevant work, and (2) the ALJ failed to obtain relevant testimony from a vocational expert regarding plaintiff's Residual Functioning Capacity ("RFC"). For the reasons set forth below, plaintiff's motion to reverse the Commissioner's decision is ALLOWED, and defendant's motion to affirm the decision is DENIED.
II. BACKGROUND
A. Disability ImpairmentThe administrative record contains the following facts. Plaintiff Ramon Castillo-Mejia is a sixty-nine year-old man who is illiterate in the English language. (Tr. 26, 36.) Castillo-Mejia finished high school and spent two years at a technician's school in the Dominican Republic. (Tr. 26, 36-37.) He moved to the United States in 1964 at the age of twenty-eight. (Tr. 66.) Until 1993, Castillo-Mejia worked in the clothing industry, predominantly as a supervisor or manager of factory workers. (Tr. 26.) In 1990, Castillo-Mejia began to feel pain in his joints and returned to the Dominican Republic in hopes that the warm climate would alleviate his pain and enable him to work more easily. (Tr. 48.) He obtained a supervisory position at an American factory there but his pain did not diminish. (Tr. 45-46, 49.) In this position, Castillo-Mejia spent his days walking around, observing employees and the quality of their work. (Tr. 45-46.) A vocational expert deemed this a light-skilled job. (Tr. 47.)
In November 1993, Castillo-Mejia was terminated from his position. (Tr. 49.) He states that his pain prevented him from fully performing his duties. (Tr. 49.) By this time, Castillo-Mejia alleged that he could neither sit down nor walk for more than four hours at a time, and that he was fatigued and needed to rest in his office throughout the day. (Tr. 49.) Additionally, the pain in his elbows prevented him from lifting or pulling anything. (Tr. 51.) Castillo-Mejia allegedly saw the company doctor in the Dominican Republic for his pain four or five times and was occasionally given a prescription pain reliever, but was usually instructed to take Tylenol. (Tr. 80-82.) Following the loss of his job, Castillo-Mejia returned to Massachusetts. (Tr. 49-50.)
B. Medical Evaluation
In June 1994, Castillo-Mejia was treated at Lawrence General Hospital for severe back pain as well as pain in several other areas. (Tr. 51, 199.) Dr. Glenn Newsome diagnosed Castillo-Mejia with a sedimentation rate of 24 mms. per hour instead of the normal 0 to 10. (This reading indicates the patient's level of inflammatory process). (Tr. 112.) In July 1994, Castillo-Mejia applied for disability benefits. (Tr. 4.)
Castillo-Mejia was examined by Dr. Navaratna on July 6, 1994. (Tr. 180.) Dr. Navaratna concluded that Castillo-Mejia's reflex, sensory, and motor functions were normal and that his prognosis was "satisfactory." (Tr. 180.) He noted that Castillo-Mejia had spinal flexion to eighty degrees and extension to thirty-five degrees. (Tr. 181.)
On August 18, 1994, Castillo-Mejia was given a disability examination by Dr. Joel Epstein. (Tr. 182.) Dr. Epstein determined that an x-ray of the lumbosacral spine taken in June 1994 revealed mild osteoarthritis. (Tr. 182.) He determined that Castillo-Mejia had no edema or cyanosis in his extremities and that he had a full range of motion of his left index finger and left elbow. (Tr. 183.) Castillo-Mejia's forward flexion in his spine was limited to 45 degrees due to back stiffness and pain. (Tr. 183.) Dr. Epstein remarked that Castillo-Mejia had "multiple joint pains consistent with an inflammatory arthritis" but that "[t]here is no clear diagnosis at this time." (Tr. 184.) At that time, Castillo-Mejia had been taking both Oruvail and Norflex. (Tr. 182.)
Oruvail is an anti-inflammatory analgesic available in low dosage over the counter. Physicians' Desk Reference Generics 1845-49 (3d ed. 1997). Castillo-Mejia was given a 200 mg dose, which requires a prescription. (Tr. 182.) Norflex is a prescription muscle relaxant. Physicians' Desk Reference 1868-69 (58th ed. 2004).
In September 1994, Dr. Joseph Schaffer reviewed Castillo-Mejia's medical records and prepared a Residual Physical Functional Capacity Assessment (RPFCA). (Tr. 185-88.) His primary diagnosis was a mild osteoarthritic spine. (Tr. 188.) Dr. Schaffer believed that Castillo-Mejia could occasionally lift or carry up to fifty pounds; could frequently lift or carry up to twenty-five pounds; could walk, with normal breaks, for a total of six hours out of an eight-hour work day; could sit, with normal breaks, for a total of six hours out of an eight-hour work day; and had an unlimited ability to push or pull including use of hand or foot controls. (Tr. 186.)
Dr. Seraphim Papajiannis also prepared an RFPCA on Castillo-Mejia in September 1994. (Tr. 189-92.) Dr. Papajiannis' assessment indicated a primary diagnosis of degenerative arthritis. (Tr. 189) This assessment included expectations of residual functioning identical to those of Dr. Schaffer. (Tr. 190.)
From 1995 until 1998, Castillo-Mejia was treated by Dr. Glenn Newsome, who stated that Castillo-Mejia "has chronic lower back pain and morbid obesity." (Tr. 194.) He noted minor degenerative changes in the lumbar spine and no significant arthritis in the knees. (Id.) Dr. Newsome stated that Castillo-Mejia could sit for forty minutes at a time for a total of 3-4 hours during an eight-hour period, stand for twenty minutes at a time for a total of three hours over an eight-hour period, and walk for twenty minutes at a time for a total of 2 hours over an eight-hour period. (Tr. 195.) He could maintain sedentary activity for a maximum period of two hours at a time, for four hours over an eight-hour period, and for ten hours in a fortyhour week. (Id.) Additionally, Castillo-Mejia could lift or carry fifteen pounds on an occasional basis and ten pounds on a frequent basis. (Id.) Dr. Newsome believed that Castillo-Mejia was required to change postures every fifteen minutes and to lie down two or three times per eight-hour period for twenty to thirty minutes at a time. (Id.) According to Dr. Newsome, given the variability of Castillo-Mejia's symptoms and their limitations, Castillo-Mejia could not reasonably predict his ability to attend to work tasks. (Tr. 196.) Finally, Castillo-Mejia could not bend, could rarely reach, grasp, or use hand or foot controls, and could occasionally use fine finger manipulation. (Id.)
Throughout 1997, Castillo-Mejia was treated by Dr. Alberto Sobrado. (Tr. 234-38.) Dr. Sobrado first diagnosed hypertension and morbid obesity, and then a thyroid disorder after receiving laboratory results. (Tr. 237-38.) Although Dr. Sobrado indicated that Castillo-Mejia was doing "quite well," he also noted that Castillo-Mejia was unable to lose weight. (Tr. 234-35.) Castillo-Mejia stopped seeing Dr. Sobrado in December 1997 due to a change in health insurance. (Tr. 234.)
For approximately three months in 1997, Castillo-Mejia worked part-time as a supervisor in a clothing factory before he was laid off. (Tr. 43-45, 85.) The job occasionally required him to sit down at a machine to teach an operator. After ten or fifteen minutes, Castillo-Mejia needed to stand, and had to support himself with his hands in order to stand up. (Tr. 54.) Following the lay off, he received unemployment benefits for approximately six months. (Tr. 45.)
Castillo-Mejia alleges that he became disabled in November 1993 due to arthritis, back pain, joint stiffness, and knee pain. (Tr. 26.) His insured status expired on September 30, 2000, and he is seeking benefits at least through 1998, when he reached the age of sixty-two and began receiving Social Security Retirement Benefits. (Tr. 43, 253, 295.)
C. Social Security Application
Castillo-Mejia filed an application for Social Security Disability benefits ("SSDI") on July 18, 1994, claiming that he had been disabled since November 6, 1993. (Tr. 143.) The Social Security Administration ("SSA") denied his initial application on September 8, 1994, and again upon reconsideration on October 11, 1994. (Tr. 144, 146-47.)
A hearing was held before ALJ Halfyard on December 14, 1995. (Tr. 209.) On January 25, 1996, the ALJ determined that Castillo-Mejia was not disabled, finding that Castillo-Mejia retains the RFC to perform a full range of light work, lifting up to twenty pounds occasionally and up to ten pounds frequently. (Tr. 211.) Thus, the ALJ found that Castillo-Mejia could perform his prior work. (Id.)
Castillo-Mejia appealed this decision to the SSA Appeals Council, which remanded the case to the ALJ on January 21, 2000. (Tr. 220-23.) The Appeals Council stated that the record was incomplete because the hearing tape was missing. (Tr. 222.) Upon remand, the ALJ was instructed to "[o]btain medical evidence concerning the claimant's impairments in order to complete the administrative record in accordance with the regulatory standards." (Id.)
ALJ Halfyard held a new hearing on April 5, 2000. (Tr. 32-60.) At this hearing, Castillo-Mejia was represented by counsel and testified. Testimony was also taken from vocational expert ("VE") Jeff Goldfarb. (Tr. 55-59.) On August 31, 2000, ALJ Halfyard issued a decision that Castillo-Mejia was not disabled and could perform his past work or could transfer his skills to a different sedentary supervisor job. (Tr. 252-59.) ALJ Halfyard stated that Castillo-Mejia was only insured through December 31, 1998, so he did not take into account any diagnosis beyond that time. (Tr. 252-53.) ALJ Halfyard considered the records of Dr. Newsome, Dr. Epstein, and Dr. Navaratna. (Tr. 254.) He found that Castillo-Mejia had no impairment meeting the criteria of a listed impairment, or equal in severity to a listed impairment, and noted that obesity is not a listed impairment. (Tr. 255.)
ALJ Halfyard determined that Castillo-Mejia had the RFC to perform a wide range of light work (maximum lifting of twenty pounds and frequent lifting of ten pounds) and a full range of sedentary work. (Tr. 256.) Based on the VE's testimony, ALJ Halfyard indicated that Castillo-Mejia was qualified and capable of working as a sorter-inspector, towel inspector, checker of semi-conductors, or as a security surveillance monitor. (Tr. 257.)
ALJ Halfyard emphasized that Castillo-Mejia filed for unemployment in 1997 and in so doing "certifie[d] that he is ready, willing, and able to work." (Tr. 256.) The ALJ also noted that Castillo-Mejia alleged disabling pain but was not using prescribed medication. (Id.)
Castillo-Mejia appealed this decision, and on June 7, 2001, the Appeals Council again remanded the matter. (Tr. 269.) A third hearing was held on October 17, 2001 before ALJ Fallon. (Tr. 61-105.) On December 28, 2001, ALJ Fallon issued a decision denying Castillo-Mejia's application. (Tr. 288-96.) ALJ Fallon determined that while Castillo-Mejia could not return to his past employment, he could work in other jobs that exist in significant numbers in the national economy. (Tr. 288-96.)
ALJ Fallon determined that despite a finding of lumbo-sacral strain, minor degenerative changes, mild osteoarthritis, back pain and the residuals thereof, these "significant vocationally relevant limitations" do not constitute any of the listed impairments found in Appendix 1 of the Regulations (Tr. 291 (citing 20 C.F.R., part 404, Subpart P, Appendix 1.)) Based on the testimony of a VE, ALJ Fallon found that Castillo-Mejia was capable of performing work that exists in significant numbers in the national economy. (Tr. 294.) However, ALJ Fallon did not comment on the VE's testimony that Castillo-Mejia's illiteracy in English could prevent him from acquiring some of those positions (Tr. 92-94), and that Castillo-Mejia might not be able to take unscheduled breaks to lie down in jobs for which he is qualified. (Tr. 95-96.) In light of his age, educational background, and RFC, ALJ Fallon determined that Castillo-Mejia was not under a disability at any time through September 30, 2000, when his insurance expired. (Tr. 295.)
On August 30, 2002, the Appeals Council remanded the matter for the third time. (Tr. 305-07.) Upon remand, the ALJ was to provide evidence from the VE as to specific work skills acquired by Castillo-Mejia and vocational adjustment capability. (Tr. 307.) This evidence was to include hypothetical questions that reflect the "specific capacities/limitations established by the record as a whole." (Tr. 307.) The ALJ was also to acquire updated medical records regarding what Castillo-Mejia can still do despite his impairments. (Tr. 306.) Finally, the ALJ was to give further consideration to Castillo-Mejia's maximum RFC and "provide appropriate rationale with specific references to evidence of record in support of the assessed limitations." (Tr. 306 (citing 20 C.F.R. 404.1545 and Social Security Rulings 86-8 and 96-8p.))
ALJ Fallon reheard the matter on December 16, 2003. (Tr. 106-140.) Castillo-Mejia, who was represented by counsel, appeared and testified at the hearing. Dr. Gerald Winkler, an impartial medical expert ("IME"), and Ruth Baruch, an impartial VE, also appeared and testified. (Tr. 117-26, 131-39.)
Dr. Winkler testified that the evidence does not support a diagnosis of inflammatory arthritis. (Tr. 120.) He also testified that Dr. Newsome did not provide laboratory or examination support for his determination of Castillo-Mejia's capacity. (Tr. 121-22.) Dr. Winkler suggested that Dr. Newsome had merely transcribed the information provided to him by Castillo-Mejia. (Id.) In addition, Dr. Winkler testified that although pain is subjective, based on the objective medical evidence in the file he would not expect a person in Castillo-Mejia's condition to experience a disabling amount of pain. (Tr. 122.) He characterized Castillo-Mejia's most frequently used medication, 500ml of Naprosyn twice daily, as an over-the-counter pain medication similar to aspirin. (Tr. 124.)
Ms. Baruch, the VE, testified that Castillo-Mejia performed light, semiskilled work as a manager in a clothing factory. (Tr. 132.) She testified that his supervisory, communications, trouble shooting, and technical sewing skills were all transferable. (Id.) Absent a language barrier, Castillo-Mejia could transfer to unskilled or semiskilled work. (Tr. 133.) In response to a hypothetical question created by ALJ Fallon, Ms. Baruch testified that a person in Castillo-Mejia's condition would be able to perform his prior work. (Tr. 133-134.) She also testified that such a person could work as a surveillance systems operator, a cashier in a parking lot, or an information clerk. (Tr. 135.) However, if that person needed to take multiple breaks in order lie down, a parking lot cashier position might not be feasible. (Id.) Moreover, if that person were not literate in English, he would probably not be qualified for an information clerk position. (Tr. 136.) Ms. Baruch also testified that in none of these positions could a person take a break at unscheduled times to rest for twenty or thirty minutes. (Tr. 136.) Finally, Ms. Baruch testified that after the age of sixty, Castillo-Mejia would not be hired as a supervisor in a clothing factory. (Id.) Castillo-Mejia turned sixty in July 1996.
ALJ Fallon issued a decision on February 27, 2004. (Tr. 19-31.) ALJ Fallon found that the medical evidence established that Castillo-Mejia "has an impairment that is `severe' within the meaning of the Regulations but not `severe' enough to meet or medically equal" a listed impairment. (Tr. 28.) The ALJ then considered whether Castillo-Mejia is disabled based on his RFC. The ALJ relied on the VE's testimony that a person with a functional capacity similar to Castillo-Mejia could perform the actual functional job duties of a factory supervisor. (Tr. 29-30.) Thus, ALJ Fallon found no disability through September 30, 2000. (Tr. 31.) Castillo-Mejia's appeal of this decision was denied by the Appeals Council on May 27, 2004. (Tr. 8-10.)
III. STANDARD
A. Disability Determination Process
The Commissioner has developed a five step sequential evaluation process to determine whether a person is disabled.See 20 C.F.R. § 404.1520; Goodermote v. Sec'y of Health Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982). "Step one determines whether the claimant is engaged in substantial gainful activity. If he is, disability benefits are denied. If he is not, the decisionmaker proceeds to step two, which determines whether the claimant has a medically severe impairment or combination of impairments." Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987) (citations omitted). That determination is governed by the severity regulation, which provides:
If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience.20 C.F.R. §§ 404.1520(c), 416.920(c).
"Basic work activities" are defined as "the abilities and aptitudes necessary to do most jobs." §§ 404.1521(b), 416.921(b). Thus, the severity regulation requires the claimant to show that he or she has an "impairment or combination of impairments which significantly limits . . . the abilities and aptitudes necessary to do most jobs." Bowen, 482 U.S. at 146 (quoting C.F.R. §§ 404.1520(c), 404.1521(b)).
If the Commissioner determines that the claimant has a severe impairment, the third step requires a determination of whether that impairment, or set of impairments,
is equivalent to one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity. . . . If the impairment is not one that is conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents the claimant from performing work he has performed in the past. If the claimant is able to perform his previous work, he is not disabled. If the claimant cannot perform this work, the fifth and final step of the process determines whether he is able to perform other work in the national economy in view of his age, education, and work experience. The claimant is entitled to disability benefits only if he is not able to perform other work.Id. at 141-42 (citations omitted).
Throughout most of the five-step disability process, the burden of proof is on the claimant. See id. at 146 n. 5. At the fifth step, however, the burden shifts to the Commissioner who must provide substantial evidence that the claimant is able to perform work in the national economy. See id. B. Standard of Review
Judicial review of SSDI determinations is available under 42 U.S.C. § 405(g), which provides, inter alia, that:
Any individual, after any final decision of the Commissioner . . . made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner . . . may allow. . . . The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . ., with or without remanding the cause for a rehearing. The findings of the Commissioner . . . as to any fact, if supported by substantial evidence shall be conclusive. . . .
In reviewing such decisions, district courts do not make de novo determinations. Lizotte v. Sec'y of Health Human Servs., 654 F.2d 127, 128 (1st Cir. 1981). This Court "must affirm the [Commissioner's] findings if they are supported by substantial evidence." Cashman v. Shalala, 817 F. Supp. 217, 220 (D. Mass. 1993); see also Rodriguez Pagan v. Sec'y of Health Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) (stating that the Commissioner's determination must be affirmed, "even if the record arguably could justify a different conclusion, so long as it is supported by substantial evidence.") (citation omitted)).
Substantial evidence is "more than a mere scintilla."Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotingConsol. Edison Co. v. Nat'l Labor Rel. Bd., 305 U.S. 197, 229 (1938)). Substantial evidence means such relevant evidence as a "reasonable mind, reviewing the evidence in the record as a whole, [would] accept . . . as adequate to support [a] conclusion." Ortiz v. Sec'y of Health Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (citing Rodriguez v. Sec'y of Health Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)). In reviewing the record for substantial evidence, "issues of credibility and the drawing of permissible inference from evidentiary facts are the prime responsibility of the [Commissioner]." Rodriguez, 647 F.2d at 222 (quoting Rodriguez v. Celebrezze, 349 F.2d 494, 496 (1st Cir. 1965)). When a conflict exists in the record, the Commissioner bears the duty to weigh the evidence and resolve material conflicts in testimony. See Richardson, 402 U.S. at 399;Ortiz, 955 F.2d at 769.
In addition to considering whether the Commissioner's decision was supported by substantial evidence, the Court must consider whether the proper legal standard was applied. "Failure of the [Commissioner] to apply the correct legal standards as promulgated by the regulations or failure to provide the reviewing court with the sufficient basis to determine that the [Commissioner] applied the correct legal standards are grounds for reversal." Weiler v. Shalala, 922 F. Supp. 689, 694 (D. Mass. 1996) (citing Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982)).
IV. DISCUSSION
The parties agree with the findings of the Commissioner as to the first three steps of the disability analysis. Castillo-Mejia has not engaged in substantial gainful activity since the alleged onset of his disability, and his back pain and residual pain thereof are severe but do not constitute an impairment that is presumptively disabling. Castillo-Mejia disputes the Commissioner's finding as to the fourth step, that he is able to perform his past work. Castillo-Mejia also claims that the ALJ was bound by administrative res judicata to a previous holding that Castillo-Mejia could not perform his past work.
A. Administrative Res Judicata
Castillo-Mejia argues that under the doctrine of administrative res judicata, the ALJ was precluded from changing his earlier finding in the December 2001 decision that Castillo-Mejia could not perform his past work. The order of the Appeals Council remanding the case to the administrative law judge concluded:
The least demanding of the claimant's past relevant job was, as classified by the vocational expert at his hearing, light work. The claimant's limitations therefore prevent his performance of past relevant work.
(Tr. 306.) The Remand Order required the ALJ to address specified issues concerning transferability of work skills "and any other issues which [the ALJ] finds to be appropriate." In addition, he was required to update medical records.
Administrative res judicata applies only when there is a final decision by the Commissioner. 20 CFR § 404.957(c)(1). See Torres v. Sec'y of Health Human Services, 845 F.2d 1136, 1138-39 (1st Cir. 1988) (upholding ALJ's dismissal of a claim on res judicata grounds where a final decision was reached before the second claim, based on the same facts, was submitted). Because the Commissioner had not made a final decision, administrative res judicata did not apply. See 42 U.S.C. § 405(h); 20 C.F.R § 404.957(c)(1).
Nor was the ALJ's finding beyond the scope of the remand. The Social Security regulations in effect when the Commissioner made a decision permitted such a remand. 20 § C.F.R. 404.977(b) provides: "Action by administrative law judge on remand. The [ALJ] shall take any action that is ordered by the Appeals Council and may take any additional action that is not inconsistent with the Appeals Council's remand order." See also Muse v. Sullivan, 925 F.2d 785, 790 (5th Cir. 1991). Because a final decision by the Commissioner had not been made prior to the December 2001 ALJ decision and the scope of the remand was not limited, administrative res judicata did not apply and the ALJ was free to reach a different conclusion based on the updated medical and vocational evidence.
B. Substantial Evidence
Castillo-Mejia also argues that there was no substantial evidence in the record to support the ALJ's finding that Castillo-Mejia could perform his past relevant work. The procedural history here is unusual because there have been four hearings. In his earlier 2001 opinion, the ALJ found that the "claimant was unable to perform his past relevant work as a clothing manager or supervisor" (Tr. 295) because he was required to perform "strenuous activities" and he could not perform "a full range of light work." (Tr. 293.) The ALJ also adopted the limitation stated by the treating physician of Castillo-Mejia's "need to lie down for rest periods during the day." (Tr. 294.) As indicated by the above-quoted language, the Appeals Council adopted that finding.
On remand, however, the ALJ did a flip-flop, deciding that Castillo-Mejia could perform his past relevant work. He posed a hypothetical to the vocational expert which included a limitation that the "individual will need to lay [sic] down 20 minutes two or three times per an eight-hour work day and that can be done in schedule [sic] breaks and lunch." (Tr. 134.) When the VE was asked a new hypothetical about unscheduled breaks, she responded: "I think that in his position as a supervisor, there's more leeway in a more professional job." (Tr. 138.) The VE also testified that as a supervisor in a clothing factory, Castillo-Mejia would be able to alternate between standing and sitting. (Tr. 138-39.) When pressed by the claimant's counsel regarding unscheduled breaks to lie down for 20-30 minutes, the vocational expert stated as follows:
Q: Is it your view that a factory supervisor can go and take a 20 to 30 minutes lay down rest and if needed unscheduled, regardless of what's going on in the factory, they can just go do that?
A: It would be more difficult in a professional job during the opportunity to take a break, [sic]
(Tr. 139.) This quoted transcript portion is either mis-reported or ambiguous, or both, and there was no further clarification. The record suggests that claimant was fired from his previous job for taking frequent rest breaks in the office. (Tr. 49.) The impartial medical expert did not address the point.
In his most recent opinion, the ALJ stated that he did not find the limitations specified by the treating physician credible. The ALJ failed to address expressly why he changed his earlier decision regarding claimant's ability to return to his work as a supervisor, particularly with respect to (1) the treating physician's opinion that Castillo-Mejia needed rest breaks to lie down for 20 to 30 minutes, (2) his own previous finding that Castillo-Mejia's past job required "strenuous" work, and (3) the fact that Castillo-Mejia was terminated from his last job for taking rest breaks. If the ALJ determines that claimant needs those breaks to function as a supervisor, he must next determine whether the breaks may be scheduled ones. While the ALJ is free to change his mind based on updated medical evidence and the testimony of an impartial medical expert, and to discredit the opinion of the treating physician and the claimant's subjective complaints of pain, he must point to substantial evidence in the record to support his opinion and not play the ostrich.
Accordingly, unfortunately, the case must (again) be remanded. Maybe the fifth hearing will be the charm.
VI. ORDER
Plaintiff's motion for judgment on the pleadings and to reverse the decision of the Commissioner (Docket No. 9) is ALLOWED. Defendant's motion to affirm the decision of the Commissioner (Docket No. 11) is DENIED. The case is remanded.