Opinion
Civil Action No. 01-1232 (GK)
August 16, 2002
MEMORANDUM OPINION
Plaintiff seeks judicial review of the final decision of the Defendant Commissioner pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405 (g), denying her supplemental security income benefits under 42 U.S.C. § 1381-1382. The matter is before the Court on Defendant's Motion for Judgment of Affirmance and Plaintiff's Motion for Judgment of Reversal or Remand. Upon consideration of the parties' cross-motions, the administrative record, and the entire record herein, for the reasons discussed below, Defendant's Motion is denied and Plaintiff's Motion is granted in part.
I. BACKGROUND
Plaintiff, Dorothy O. Covington, brings this Social Security action to challenge the decision of the Administrative Law Judge (ALJ) dated June 3, 1998, which found that she was not disabled. Ms. Covington, a fifty-two year old woman, suffers from chronic back pain due to a possible herniated nucleus pulposus. (R 232.) In January 1992, Ms. Covington underwent a bilateral total decompressive lumbar laminectorny, which did not seem to relieve her symptoms. CR 207.)
Plaintiff filed an initial application for Supplemental Security Income over ten years ago, on January 2, 1992. Several hearings denying her claim, appeals and remands followed. The decision at issue in this case was rendered on June 3, 1998, denying Plaintiff benefits. The Appeals Council affirmed the ALJ decision on June 1, 2001, noting that there was no basis for granting the request for review.
Plaintiff's January 2, 1992 application was denied in March 1992. Plaintiff filed a timely request for reconsideration on April 9, 1992, which was again denied inn July of the same year. On July 29, 1992, the Plaintiff then requested a hearing in front of an ALJ. The hearing revealed that reports that were considered earlier did not pertain to the Plaintiff. Thus, the case was remanded to the State Agency for further development on January 29, 1993. The application was again denied on June 3, 1993. The ALJ conducted a second hearing in November of 1994. The decision, announced on June 26, 1995, once again denied Plaintiff SSI benefits under the Social Security Act. In August of the same year, Plaintiff requested a review of the ALJ decision by the Appeals Council, which remanded the case for "further proceedings" on April 4, 1997.
A. Disability Determination Process
A disability is defined under the Social Security Act as "an inability to engage in any substantive 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). A person is considered disabled only if her physical or mental impairments are so severe that she is not only unable to do her previous work, but cannot, considering her age, education, and work experience, engage in any other kind of substantial gainful work, which exists in the national economy. 42 U.S.C. § 423 (d)(2)(A).
Evaluations are to be made according to a five-step process used to determine disabilities under the Social Security Act. See 20 C.F.R. § 404.1520, 416.920. First, the ALJ must determine whether the claimant is working or performing a substantial gainful activity. If so, no disability will be found regardless of the medical condition, age, education, and work experience. 20 C.F.R. § 404.1520 (b), 416.920(b). Second, the claimant must show that she has a severe impairment, defined as "any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities. . . ." 20 C.F.R. § 404.1520(c), 416.920(c). Third, the claimant must show that the impairment meets or is equal to an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("Listing"). Fourth, if an impairment does not meet a Listing, the ALJ must determine whether the claimant is able to perform past relevant work. If a decision cannot be based on the claimant's current work or objective medical facts alone, and she has a severe impairment, the ALJ will then review her residual functional capacity (RFC) and the physical and mental demands of past work. 20 C.F.R. § 404.1520 (e), 416.920(e) Fifth and finally, if the claimant is found not to be able to perform relevant work, the ALJ must consider the Government's evidence of her RFC and her age, education and past work experience to determine whether she can otherwise be gainfully employed. 20 C.F.R. § 404.1520 (f)(1), 416.920(f)(1).
The RFC is an assessment of those work activities that the Plaintiff can perform despite her impairment. Using the evaluation process detailed in 20 C.F.R. § 416.920, the ALJ must consider objective medical testimony (including testimony of the claimant's limitations in stooping, pulling, pushing, etc.) and subjective allegations of pain.
B. The ALJ's Ruling
The issues in dispute in this case arise in steps three, four and five of the assessment process. In step three, the ALJ ruled that although Plaintiff's impairment is "severe," it did not meet any of the impairments described in the Listings. In step four, the ALJ determined that, although Plaintiff was incapable of resuming her former employment, she possessed the REC to perform light and sedentary work when given the flexibility to alter her position at will. In the fifth and final step, based on the RFC assessment and a Vocational Expert's (VE) testimony, the ALJ ruled that Ms. Covington would be able to perform work existing in significant numbers in the national economy. (R 26.)
II. STANDARD OF REVIEW
In reviewing the ALJ's decision, the District court must "carefully scrutinize the entire record," Davis v. Heckler, 566 F. Supp. 1193, 1195 (D.D.C. 1983) (quoting Klug v. Weinberger, 514 F.2d 423, 425 (8th Cir. 1975)), in order to determine if there is substantial evidence to uphold the ALJ's final decision. Brown v. Bowen, 794 F.2d 703, 705 (D.C. Cir. 1986). Substantial evidence as defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). Furthermore, the District Court must give deference to "the administrative decision and it is not for the trial court to review de novo the Secretary's final decisions as to findings of fact and the reasonable inferences to be drawn therefrom." Reyes v. Secretary of Health. Ed. and Welfare, 476 F.2d 910, 914 (D.C. Cir. 1973). However, "[t]he broad purposes of the Act require a liberal construction in favor of disability [and] the intent [of the Act] is inclusion rather than exclusion." Taylor v. Heckler, 595 F. Supp. 489, 493 (D.D.C. 1984) (quoting Floyd v. Finch, 441 F.2d 73, 105 (6th Cir. 1971)).
III. ANALYSIS
A. The Listings Impairment Assessment
In step three of the disability determination process, the ALJ ruled that Ms. Covington's impairment did not meet or equal those in the Listings. 20 C.F.R. Part 404, Subpart P, Appendix 1. Listing 1.05c defines the degree of severity necessary for Ms. Covington's type of spinal injury to be deemed a disability:
Other vertebrogenic disorders (e.g., herniated nucleus puplosus, spinal stenosis) with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2:
1. Pain, muscle spasm, and significant limitation of motion in the spine; and
2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.
In concluding that she did not meet a Listing, the ALJ's sole rationale was that "no treating or examining physician has mentioned findings equivalent in severity to the criteria of any listed impairment." (R 17.) The ALJ makes no mention of key medical evidence in the record, which would substantiate the Listing requirements. For example, the record includes doctors' reports of absent ankle jerks, which may evidence sensory and reflex loss (R 165, 168), muscle spasms (R 165, 168) and nonresponsive H reflexes (R 172, 165). In doing so, the ALJ ignored significant probative evidence.
The criteria in the Listings are not optional and cannot be mixed and matched to the benefit of the claimant. They are strict requirements that must be met. It is clear, however, that the ALJ failed to consider evidence, which could be deemed to satisfy the requirements in the Listings. Upon remand, the ALJ should closely scrutinize the medical record and determine whether Ms. Covington's impairments, in totality, equal an impairment in the Listings, with particular attention given to Listing 1.05C.
B. Ability to Do Past Work Based on RFC
At step four, the Commissioner is required to show that a claimant's RFC allows her to perform other work. 20 C.F.R. § 404.1520 (f), 416.920(f)(1). Assessing RFC is based upon all relevant evidence, which may include the claimant's ability to meet physical or mental demands of work, limitations that go beyond the symptoms (such as pain) and observations of limitations by family and friends. 20 C.F.R. § 416.945.
1. Consideration of Objective Medical Evidence
In evaluating Plaintiff's RFC, the only medical evidence the ALJ referred to was Dr. Curfman's October 1991 assessment and his subsequent July 1997 nerve conduction study. He also mentioned Dr. Maximous' December 1997 report. (R 17-18.) The ALJ did not, however, examine other relevant medical evidence, dismissing it as previously examined in the prior decision of June 26, 1995. (R 17.) The ALJ defined Plaintiff's RFC as sedentary work that would allow some type of flexibility in changing positions more than once every hour. (R 91.) Specifically, he ruled that "the claimant [is] capable of performing standing and/or walking and sitting for a total of eight hours in an eight-hour workday when given the flexibility to alter these positions at will." (R 18.)
Dr. Maximous' report is quoted to confirm that no atrophy was related to the impairment. The ALJ also specifically identified Exhibit 41 in which Dr. Maximous reports no motor or sensory deficits in the upper extremities. (R 245.) No mention is made of the doctor's further findings, such as "lumbar disk [sic] disease, multiple levels," a marked degree of limitation in forward flexion, and advanced arthritis of the spine. (R 245.) The RFC analysis also neglected to consider several well documented limitations, including stooping, crouching, kneeling, and environmental restrictions noted in Dr. Maximous' and Dr. Corfman's reports. (R 250, 148.) These inconsistencies have not been reconciled.
By relying on discussion of other medical evidence in a prior (remanded) decision, the ALJ overlooked grave errors in the previous analysis. The prior decision considers Dr. Curfman's October 1991 report and then states, "the medical record contains a gap in treatment until March of 1993." (R 198.) This is simply incorrect. The omission discounts key medical evidence — Ms. Covington's back surgery of January 15, 1992. (R 207.) The past decision also further ignores at least two other medical reports in their entirety.
The ALJ has inadequately reviewed the medical evidence. Not only does his analysis ignore entire medical reports, but it disregards facts within acknowledged reports that directly contradict the final ruling. "The expert opinions of treating physicians as to existence of a disability are binding on the fact finder unless contradicted by substantial evidence to the contrary." Davis v. Heckler, 566 F. Supp. at 1196-97 (quoting Aubeuf v. Schweiker, 649 F.2d 107, 112 (2d Cir. 1981)). Here, the ALJ discounted not only the treating physicians' medical testimony, but also that of Agency-appointed doctors. Upon remand, the ALJ will reconsider the medical testimony in its entirety before assessing Ms. Covington's RFC.
2. Consideration of Claimant's Credibility and Allegations of Pain
In assessing a claimant's RFC, the ALJ must review the physician's and claimant's descriptions of pain, as well as related symptoms affecting the ability to work. 20 C.F.R. § 404.1529, 416.929. Although the ALJ is allowed wide latitude in evaluating a claimant's credibility in reporting subjective pain, he is nevertheless bound by the statute.
The ALJ's judgment regarding the Plaintiff's credibility and her allegations of pain are intertwined. The ALJ bases his doubts about Plaintiff's credibility upon (1) a disability report where Plaintiff notes she could perform "odd jobs" and was able to visit friends; and (2) a document in which Plaintiff notes she could care for her personal needs "slowly." The ALJ determined that these reports conflicted with Ms. Covington's statement at the hearing that her sister "does everything for her." (R 19-20.) Accordingly, the ALJ determined that she was not credible and thus thoroughly discredited her allegations of pain.
The transcript of the hearing does reflect an exchange as to how much Ms. Covington's sister takes care of "everything for her." Regardless of differing interpretations of this exchange, slight discrepancies in the record do not justify the disparagement of a claimant's credibility and in turn, her allegations of subjective pain.See Brown v. Barnhart, 2002 WL 603044 (E.D.N.Y.) (finding the ALJ improperly discredited the Plaintiff's testimony of pain without good reason). In this case, the discrepancies in Plaintiff's statements do not irreparably taint her credibility.
Q. You haven't been able to do any of your own shopping?
A. No.
Q. Do you ever go with your sister?
A. No.
Q. Do any, do you do any of your own housework?
A. No.
Q. Who does that?
A. My sister.
Q. And how long has that been the case?
A. Since "92.
Q. Do you make any of your own meals?
A. No.
(R 69-70.)
It should also be noted that cases in which claimants were able to do simple housework were not dispositive on the issue of whether they were in fact disabled under the rules of the Social Security Act. See, e.g., Ferguson v. Bowen, 1987 WL 13961 (D.D.C. 1987) (claimant did light housework, including cooking her own meals)
In an extended discussion of Plaintiff's allegation of pain, the ALJ found her "near sedentary existence which the claimant described at the hearing is shown by the overall record to be self-imposed . . . (R 20). The ALJ also remarked that if Plaintiff reads and watches television her pain must merely be a "tolerable distress," rather than an actual disability. (R 20)
There is no legal precedent that watching television and reading constitute evidence of insubstantial pain. Moreover, nowhere in the standards promulgating the Social Security Act is it required that pain be thoroughly disabling in order to be considered as an element in assessing a claimant's status. Rather pain is one of the elements which aid in assessing a claimant's RFC. See 20 C.F.R. § 404.1529, 416.929.
The Court acknowledges that complaints of pain are not in themselves sufficient to establish disability and must be supported by objective medical evidence. Simms v. Sullivan, 877 F.2d 1047, 1051 (D.C. Cir. 1989). Here, Ms. Covington's allegations are clearly supported by the medical evidence including MRI's showing radiculopathy, disc height loss and broad based disc herniation (R 170, 147, 145), and X-rays showing degenerative changes in her spine. In addition, observations by friends and family may be used in assessing pain. See 20 C.F.R. § 416.945, 404.159(c). Written testimony by both Ms. Covington's mother, and her former employer were disregarded. (R 189, 208). "[E]vidence of subjective pain is relevant and probative to the law judge's ultimate determination of disability . . . and failure to consider it is ground for remand." Diabo v. Secretary of Health, Education and Welfare, 627 F.2d 278, 282 (D.C. Cir. 1980)
Plaintiff's mother testified that Plaintiff is "in consent [sic] pain, and pain pills don't help anymore." Her former employer notes that Ms. Covington was dismissed due to her "continued pain and suffering."
The ALJ failed to consider probative evidence when assessing Plaintiff's RFC. Upon remand the ALJ should carefully consider the objective medical evidence on record and testimony of pain when measuring the Plaintiff's RFC.
C. Performing Other Work in the National Economy
At step five in the disability determination process, if the claimant is found unable to do any work she has done in the past because of a severe impairment, the ALJ must consider her RFC and age, education, and work experience to see if she can do other work. 20 C.F.R. § 404.1520 (f)(1). If there are non-exertional limitations in question, the ALJ may rely on the expertise of a vocational expert (VE) to assist in ascertaining a claimant's RFC. 20 C.F.R. § 404.1566 (e), 416.966(e). In so doing, the ALJ will ordinarily pose a hypothetical question to the VE, communicating the claimant's age, education, work experience and RFC. If the hypothetical put to the VE is flawed or contains omissions, it undermines "the foundation for the expert's ultimate conclusions that there are alternative jobs appellant can do."Simms, 877 F.2d at 1053.
"The Secretary must introduce expert vocational testimony to prove that a significant number of jobs are available for the claimant." Smith v. Bowen, 826 F.2d 1120, 1122 (D.C. Cir. 1987).
The hypothetical posed to the VE correctly presented the Plaintiff's age, education and work experience. It then limited the claimant to sedentary work that would allow some type of flexibility in changing positions more than once every hour. (R91). The hypothetical neglected to consider several of Plaintiff's medically documented limitations, including stooping, crouching, kneeling, and environmental restrictions noted in Dr. Maximous' and Dr. Curfman's reports. (R 250, 148). Thus the hypothetical was based upon an RFC that is not supported by substantial evidence.
Even if the medical testimony had been properly discredited, "in order for the ALJ to rely upon the expert's opinion as to what jobs the Plaintiff could perform it was imperative that the ALJ accurately describe the Plaintiff's conditions, which would include the extent to which the ALJ credited the Plaintiff's subjective complaints." Males v. Sullivan, 726 F. Supp. 315, 319 (D.D.C. 1989). See also Wilks v. Arfel, 113 F. Supp.2d 30, 33 (D.D.C. 2000) (clearly stating that ALJ must accurately describe the claimant's physical impairments to the VE, "includ[ing] subjective claims of pain"). The ALJ was therefore required to address these claims in the hypothetical posed to the VE. Id.
In sum, the ALJ relied upon a flawed RFC assessment in the hypothetical put to the VE. Upon remand, if the ALJ elects to call a VE, the hypothetical must describe the Plaintiff's physical impairments accurately in light of objective medical testimony and subjective allegations of pain.
D. General Inconsistencies in the ALJ Decision
In addition, there are also several serious inconsistencies in the ALJ's final conclusions. The ALJ's fifth finding, relating to step four in the assessment process, states that the claimant is "unable to perform her past relevant work including . . . as a file clerk . . ." (R 12). The ALJ's eleventh finding, referring to the RFC assessment at step five, determines that although Ms. Covington is "unable to perform a full range of light work, she is capable of making an adjustment to work which exists in significant numbers in the national economy," including work as a file clerk. (R 26.) In another section, the ALJ notes that "the claimant could perform work at the light level such as a file clerk." (R24.) There is no way to reconcile these contradictory findings.
IV. CONCLUSION
Upon consideration of the parties' cross-motions, the administrative record and the entire record herein, this case is hereby remanded to the Commissioner for rulings in steps three, four and five of the disability determination process. In consideration of these steps, the entire medical record and Plaintiff's allegations of pain must be given due regard.
This Court further rules that in light of the full decade this case has been in the system, the Court expects that the Government will handle the remand with great expedition.
ORDER
Upon consideration of Plaintiff's Motion for Judgment of Reversal, Defendant's Motion for Judgment of Affirmance, and the entire record herein, it is hereby
ORDERED that Plaintiff's Motion for Judgment of Reversal is granted in part and denied in part, and it is further
ORDERED that Defendant's Motion for Judgment of Affirmance is denied, and it is further
ORDERED this case is remanded to the Agency for the most expeditious treatment possible.