Opinion
Case No. 01-4069-SAC.
March 24, 2004.
REPORT AND RECOMMENDATION
This matter comes before the court upon plaintiff's Complaint, filed on June 11, 2001, appealing Social Security Commissioner's (the "Commissioner") determination that plaintiff is ineligible for disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. (the "Act").
I. PROCEDURAL BACKGROUND
Plaintiff filed an application for Disability Insurance Benefits on October 24, 1996, alleging disability beginning January 1, 1994. Plaintiff's application was denied initially on January 30, 1997 and was denied upon reconsideration on March 17, 1997. Following plaintiff's request, a hearing was held before Administrative Law Judge Jack Reed ("ALJ") on June 25, 1999. During the hearing, plaintiff amended the alleged date of onset to September 21, 1996. The ALJ rendered a written decision unfavorable to the plaintiff on September 16, 1999. On April 20, 2001, the Appeals Council denied plaintiff's request for review. The plaintiff timely filed a Complaint with this court on June 11, 2001, seeking a reversal of ALJ's decision.
II. STANDARD OF REVIEW
The standard for judicial review of the Commissioner's final decision is set forth in 42 U.S.C. § 405(g). The court must determine whether there is substantial evidence in the record to support the Commissioner's findings. "Substantial evidence" requires a finding that there is more than a scintilla of evidence, which a reasonable mind might accept as adequate to support a conclusion. Any new evidence not considered by the ALJ but submitted to and considered by the Appeals Council is incorporated into the record and will be considered by the court.
See Richardson v. Perales, 402 U.S. 389, 390 (1971) (holding that the "findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. . . ."); see also Marshall v. Chater, 75 F.3d 1421, 1425 (10th Cir. 1996).
See Richardson, 402 U.S. at 401-02.
See O'Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994).
In evaluating the Commissioner's decision, the court should not reweigh the evidence or substitute its judgment for that of the Commissioner. The court, however, should not merely accept the Commissioner's findings.
See Hamilton v. Secretary of HHS, 961 F.2d 1495, 1500 (10th Cir. 1992).
See Claassen v. Heckler, 600 F.Supp. 1507, 1509 (D. Kan. 1985).
The Code of Federal Regulations sets forth a five-step sequential process to evaluate disability claims. The claimant bears the burden of persuasion on the first four of the five steps, and the Commissioner bears the burden on the last step. If the claimant fails at any of the first four steps, consideration of any subsequent steps becomes unnecessary.
See 20 C.F.R. § 404.1520.
See Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988).
Step one in the sequential evaluation process is the determination of whether the claimant is currently engaged in substantial gainful activity. If not, the fact-finder in step two must decide whether the claimant has a medically severe impairment or combination of impairments. A claimant who does not have a medically severe impairment must show, in step three, that his or her impairment "is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity." Step four requires a demonstration that the "impairment prevents the claimant from performing work he has performed in the past." After step four the burden shifts to the Commissioner to show that the claimant has the residual functional capacity ("RFC") "to perform other work in the national economy in view of his age, education, and work experience."
See Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987). See also 20 C.F.R. § 404.1520.
Id. at 141.
Id.
Id. at 142.
III. FACTUAL BACKGROUND
A. RELEVANT MEDICAL HISTORY
At the root of plaintiff's alleged disability are pain in the back and knees and fatigue. The onset of plaintiff's pain was in 1988, when he was treated by Dr. Philip Baker for complaints of bilateral knee pain. Dr. Baker noted that there was extensive swelling in the plaintiff's lower legs, and stated that plaintiff had postural dependent edema related to being on his feet for many hours.
On September 19, 1994, plaintiff complained of pain and tenderness in his right foot. Plaintiff was followed by a chiropractor, Dr. Thomas, from April 13, 1990 until September 27, 1997.
On October 23, 1995, plaintiff was treated by Dr. Thomas Walsh for complaints of dull chest pain, which radiated into his back. An EKG taken by Dr. Walsh revealed sinus bredycardia. Dr. Walsh assessed chest pain of questionable etiology.
Dr. Patrick Sheehy examined the plaintiff on October 24, 1995. Plaintiff complained of chest pain and Dr. Sheehy noted that plaintiff had a history of leg swelling.
On October 3, 1996, plaintiff was again seen by Dr. Walsh for complaints of a sore right foot and persistent knee pain, which lasted for three weeks. This pain was especially severe in the early morning or when rising from a seated position. Plaintiff also reported lower back pain. Dr. Walsh assessed diffuse stiffness and prescribed Relafen 500.
On November 5, 1996, plaintiff was seen by Dr. Phillip Baker for evaluation of multiple aches and pain, particularly in the back and both knees. On examination, plaintiff had lateral bends of 15 degrees bilaterally and five degrees of extension and 60 degrees of flexion. Reflexes were 2/4 bilaterally at the knees and 2/4 bilaterally at the ankles. X-rays taken that day revealed minimal degenerative changes of the right knee, minimal chondrocalcinosis of the left knee and minimal anterior superior osteophytic spurring of L3 and L4 and Schmorl's node formation at T-12. Dr. Baker saw the plaintiff again on November 19, 1996, and his eventual impression was osteoarthritis of the spine.
On January 11, 1997, Dr. Daniel Thompson conducted a consultative physical examination of the plaintiff for the Disability Determination Service. Dr. Thompson noted that plaintiff walked with a wide based gait and had a mild limp on the left. Dr. Thompson noted a 1+ edema and complaints of back pain, knee pain and hip pain. Plaintiff had moderate difficulty getting on and off the examination table, moderate difficulty with heel and toe walking, moderate difficulty squatting and arising from the sitting position and moderate difficulty hopping. Dr. Thompson concluded that plaintiff had obesity and arthralgia with diminished sensation in the right calf with decreased reflex. Dr. Thompson noted that xrays of the lumbar spine showed minimal end plate osteophytosis at the superior surfaces of L3-4 with minimal anterior wedging of the T12 vertebral body and slight superior end plate compression.
On January 13, 1997, plaintiff complained to Dr. Walsh of chest pain and reported that he had chronic knee pain and difficulty walking.
On January 22, 1997, plaintiff reported side effect from his medication, which made him feel as if he were drunk. Plaintiff appeared to have joint stiffness and was again diagnosed with hypertension and obesity. Lab reports taken on this day confirmed the diagnosis of hypertension. On January 29, 1997, the state agency medical consultant opined that plaintiff could lift and carry 25 pounds frequently and up to 50 pounds on occasion. Because no non-exertional limitations were identified, the consultant concluded that plaintiff could perform full range of work at the medium level of exertion. On that same day, plaintiff also saw Dr. Walsh and the clinic note indicated that plaintiff had started exercise that day with a 2 mile walk.
On February 23, 1997, plaintiff checked into the emergency room at the Community Hospital in Onaga, Kansas, with complaints of left knee pain. Plaintiff's knee was red, swollen and painful. Dr. Walsh assessed acute inflammation of the left knee, probable evolving bursitis vs. tendinitis. Dr. Walsh used Toradol for treatment and prescribed Indocin for pain.
On March 28, 1997, plaintiff was injured while working in a bin. On June 28, 1997, plaintiff was injured while pulling a trailer with his truck.
On September 15, 1997, plaintiff reported knee pain, stiffness, swelling and a history of arthritis to Dr. Walsh. The x-rays reviewed on September 17, 1997 indicated that plaintiff's knees were essentially normal. Dr. Walsh followed up with the plaintiff on October 13, 1997 for the knee pain and noted that there was "absolutely no relief of knee pain." Dr. Walsh's impression was bilateral knee pain and he referred the plaintiff to a rheumatologist, Dr. O'Neil.
On March 18, 1998, plaintiff reported to Dr. Walsh that he hit his head on the front of a Hydrocat two weeks earlier while moving hay. During the same visit, Dr. Walsh noted that plaintiff was experiencing problems suggestive of a rotator cuff injury in his left shoulder.
On May 8, 1998, Dr. Arundhati Desai examined plaintiff on referral from the state agency. Dr. Desai noted that plaintiff's main problem was knee and back pain. Tests revealed that straight leg raising was 70 degrees bilaterally and spine range of motion was limited. Dr. Desai assessed history of degenerative arthritis affecting the back and the knees and history of hypertension. Dr. Desai completed a medical assessment of ability to do work-related activities during this examination. Dr. Desai's report reflects that plaintiff can only lift less than five pounds or five gallons and carry it a short distance. The report further states that plaintiff cannot frequently lift any amount and could occasionally lift/carry "not that much," and that plaintiff could stand/walk 15-30 minutes total in a day and 15 minutes without interruption, and could sit for one half of an hour at a time.
Dr. Desai noted both units of measure on the same page of the physical residual functional capacity assessment form. It is clear that the contents of a five-gallon container may exceed five pounds in weight.
On October 21, 1998, Dr. Sharon McKinney examined the plaintiff and noted that he had great difficulty standing on one foot and trying to stand on his toes. Patellar and Achilles reflexes were 1/4 bilaterally with abnormal strength of 4/5. Range of motion of the left shoulder was decreased in flexion as well as internal rotation. Plaintiff also appeared to have performed poorly on the right wrist extension, pronation and supination. Dr. McKinney noted decreased flexion of the right shoulder, right latissimus dorsis and decreased grip strength. Her impression was very early arthritis of the knees, hips, and back, and likely rotator cuffs tear in the left shoulder, with some areas of weakness. Dr. McKinney concluded that, although the plaintiff was sincere in his inability to work, she had been unable to find "medically convincing" reasons for this condition.
Dr. McKinney also suggested referral to Jeanne Frieman, Ph.D., for assessment of the "slow functioning thought processing" she observed in the course of her examination of the plaintiff. Dr. McKinney opined that plaintiff was limited in the amount of physical labor he could do and that any mental difficulties might erode his capacity for sedentary work. Dr. McKinney again examined the plaintiff on October 29, 1998. During that examination, she noted that plaintiff's range of motions decreased by 50% and significant weaknesses were present in both upper and lower extremities. Plaintiff also appeared to have left posterior rotated illium with upslip and possible rotator cuff tear with significant arthritis in the shoulder joints.
Although the document's date is very difficult to discern, it appears that October 29, 1998 is appropriate and was noted as a correct date in Dr. Friedman's report.
On November 11, 1998, plaintiff complained to Dr. Walsh of chest wall pain. He told Dr. Walsh that a few days earlier he had been welding on a bunker and may have hurt his chest when he tried to pick it up and move it. Dr. Walsh's examination revealed that the pain was reproducible with palpation over the left anterior chest. Dr. Walsh assessed chest wall pain and hypertension and prescribed Indocin and Tiazac.
On December 2, 1998, bilateral knee x-rays were normal. On that same day plaintiff saw Dr. Jeanne Frieman for a mental status examination with related psychological testing. The psychiatric diagnostic interview (Bender Gestalt) and mental status examination revealed that plaintiff has organic brain syndrome with problems of reduced memory and internal processing skills. The visit revealed that plaintiff had difficulty starting and completing tasks, had no hobbies or interests, and rarely saw friends. Dr. Frieman opined that plaintiff is capable of one-step simple calculations as long as he knows the facts and does not have to do much internal processing. Plaintiff erred in his serial 3 performance and could not do the serial 7 problem. Dr. Frieman noted that plaintiff could not remember his attorney's name and reported being aware of having memory problems and limited intelligence. Dr. Frieman opined that plaintiff has limitations in visual problem solving and a limited vocabulary.
Dr. Frieman completed a WAIS-R examination and found that plaintiff had a verbal IQ of 78, performance IQ of 79 and a full scale IQ of 78. Dr. Frieman opined that this was in a the low average intelligence range. Dr. Frieman also completed a Bender Gestalt examination, noting that plaintiff had trouble remembering short sentences and scored poorly on the Wechsler Memory Scale. Furthermore, Dr. Frieman noted that plaintiff had evidence of organic brain damage with problems of altered size, rotation and figure collision. On the basis of her evaluation, Dr. Frieman diagnosed the plaintiff with low average intelligence, organic brain syndrome, memory deficits, reduced ability to concentrate, and noted that he had beginning symptoms of Alzheimer's.
On May 6, 1999, Dr. Desai again examined plaintiff for the state agency. At the time of this examination, plaintiff's weight was about 300 pounds. Dr. Desai's assessment was history of back pain with arthritis, affecting the knees, ankles and feet, and history of hypertension. Dr. Desai noted that plaintiff was then on glucosamine, Aleve, and Tylenol. He also noted that the December 1998 x-rays were reported as normal, that ESR was within normal limits, and that rheumatoid factor CRP was negative.
B. PLAINTIFF'S TESTIMONY
At the administrative hearing, plaintiff testified in detail about physical limitations stemming from his alleged disability. At the time of the hearing, the plaintiff was fifty-four years old. He testified that he completed high school by receiving a GED.
Plaintiff testified that he suffers from considerable back pain, knee pain and fatigue. He described the pain in his knees as a "lightning strike" and stated that back pain and fatigue left him irritable and "stressed out." Plaintiff testified that it takes him a half hour each morning to "work out the stiffness" in his body, and when he tried to use a treadmill to loosen up, he could only do it for two minutes. Plaintiff stated that he has difficulty walking and has fallen at times. However, he can only sit for ten minutes before the pain in his knees increases. Plaintiff further testified that he does not sleep well at night due to pain and swelling, and is not rested when he wakes up. In a typical night, plaintiff claims to be awake for approximately two hours.
Plaintiff takes Tylenol and Advil four times a day, but the medication does not fully ease his pain. To help alleviate the pain further, plaintiff spends the majority of his day in his recliner, where he is able to elevate his feet. Plaintiff claims that doctors have refused to perform knee replacement surgery on him. Plaintiff also takes Tiazac and Addican for high blood pressure, and he claimed that his stress level has decreased since he stopped milking cows.
Plaintiff testified that he had difficulty concentrating and was unable to drive to the hearing himself because it would have required finding an unfamiliar place while reading a number of traffic signs. Plaintiff further testified that if he decreased his daily activities, his mood improved, and therefore he spent most of the day reading a newspaper. Because even less strenuous activities caused plaintiff discomfort and pain, he stated that he was only able to work in his shop for half an hour on any given day, and has practically discontinued doing basic household chores, such as mowing the lawn and changing oil in the car. It appears that at times plaintiff helps his brother by driving a tractor during corn harvest.
With respect to his farm, plaintiff testified that since 1996 he has "cash-rented" it to a neighbor. Under this arrangement, the neighbor works on the farm and keeps one half of the profits, while plaintiff, as the owner of the farm, receives the other half.
C. TESTIMONY OF PLAINTIFF'S WIFE
Plaintiff's wife, Mrs. Heiman, testified that after plaintiff was no longer able to work and until the milking operations were sold, she and her sons worked on the farm, sometimes under plaintiff's supervision. Mrs. Heiman said that plaintiff complained of "tremendous pains in his legs more than his back" and that he had "tremendous swelling from the knees down," but they had been unable to find a doctor who could properly diagnose the pain. In her opinion, the plaintiff could no longer engage in farming and she did not think he could do any other job that would require him to be on his feet for long periods of time. Mrs. Heiman also described some rigidity of thought and lack of flexibility on the part of her husband, which might prevent him from learning new job skills. She said she understood Dr. Frieman's comments about plaintiff's mental functioning to preclude him from doing things like doing "square root of anything" but that he "did okay" when he was "in his element."
D. PLAINTIFF'S WORK HISTORY
Following graduation from high school, plaintiff became a dairy farmer, which occupation he continued until sometime in 1993, when he was no longer able to perform the physically demanding work at the farm. Plaintiff continued to provide technical advice and expertise to his family until the operation was rented out in June of 1996. Since then, plaintiff appears to perform some limited household chores around the house.
E. VOCATIONAL EXPERT'S TESTIMONY
The vocational expert ("VE") testified concerning plaintiff's past work and his ability to perform other work given his limitations. She classified plaintiff's past work as a farmer and a dairy farmer as skilled work performed at the heavy level of exertion.
After her initial assessment, the ALJ presented the VE with a hypothetical describing the plaintiff as (a) suffering from knee and back pain and having high blood pressure, (b) completing high school but having low average intelligence, (c) being unable to lift more than 20 pounds at a time or five pounds with any frequency, and (d) requiring an opportunity to sit or stand during a work day.
Based on this hypothetical, the VE testified that plaintiff could not return to his previous job as a diary farmer. In response to the ALJ's question about other jobs the plaintiff could perform given the hypothetical, the VE initially replied that he could perform jobs at the sedentary level, such as being a security monitor. When asked whether plaintiff could do any light or restricted light work, the VE testified that he could be either a gate tender or a machine tender. VE opined that there were 50,000 gate tender jobs nationwide, of which 300 are in Kansas, and 70,000 machine tender jobs nationwide, of which 600 are in Kansas.
In response to the ALJ's question of whether the ability to remember and follow job instructions was a factor in either of the two jobs, the VE stated that it would matter for the gate tender position, as plaintiff would be required to make significant judgments and "handle different things." Furthermore, the VE opined that if the plaintiff's condition was indeed as he and his wife described, the plaintiff would not be employable because of suspect job attendance and inability to stay on task. Furthermore, the VE noted the realistic possibility that the plaintiff would have difficulty making significant vocational adjustment from self-employment to working for someone else.
IV. ALJ'S DECISION
In his decision, the ALJ made the following findings:
1. The claimant met the special insured status requirements of the Act on September 21, 1996, the date he stated he became unable to work, and continues to meet them through September 30, 1997.
2. The claimant has not engaged in substantial gainful activity since September 21, 1996.
3. The claimant has the following severe impairment that limits his ability to perform basic work activities: Pain secondary to arthritis.
4. The severity of the claimant's impairment did not meet or equal the requirements of any of the listed impairments in Appendix 1, Subpart P, Regulations No. 4 ( 20 C.F.R. § 404.1525).
5. The claimant's testimony as to the severity of his impairment, attending symptoms, and ability to work is no more than partially credible for the reasons set forth in the body of [the] decision.
6. The claimant retains the residual functional capacity to perform light work activity allowing a sit/stand option.
7. The claimant is 54 years of age, has 12 years of education, and has past relevant work experience. The claimant does not have the residual functional capacity to perform past relevant work, and acquired no skills which are transferrable to work within his residual functional capacity.
8. If the claimant had the capacity to perform a full range of sedentary work, Rule 202.14 of Table No. 1, Appendix 2, Subpart P, Regulations No. 4, would direct a conclusion of "not disabled."
9. Although the claimant cannot perform the full range of light work, using the above-cited rule as a framework for decisionmaking, there is a significant number of jobs in the national economy that he could perform, as identified by the vocational expert.
10. The claimant was not under a "disability," as defined in the Social Security Act at any time through the date of this decision.
(R. at 23-24).
Plaintiff asserts that the ALJ erred in finding that he has sufficient RFC to perform a significant number of jobs in the national economy. Plaintiff also challenges other conclusions and findings by the ALJ. The court will address plaintiff's contentions below.
V. DISCUSSION
A. ALJ'S DETERMINATION THAT PLAINTIFF'S MENTAL IMPAIRMENT IS NOT A SEVERE IMPAIRMENT
In step two of the sequential analysis, the ALJ determined that plaintiff's mental impairment does not constitute a severe impairment. Plaintiff now challenges this finding.
At step two, the burden of proof is on the claimant to establish a severe impairment. The burden is satisfied by a "de minimis" showing of an impairment. A claimant need only be able to show at this level that the impairment would have more than a minimal effect on his or her ability to do basic work activities. However, the claimant must show more than a mere presence of a condition or ailment. If the medical severity of a claimant's impairments is so slight that the impairments could not interfere with or have a serious impact on the claimant's ability to do basic work activities, the impairments do not prevent the claimant from engaging in substantial work activity. Thus, at step two, the ALJ must look at the claimant's impairment or combination of impairments only and determines the impact the impairment would have on his or her ability to work.
See Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993) (stating that the claimant bears the burden of proof through step four of the analysis).
See Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997); see also Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988) (requiring "de minimis showing of medical severity").
See Williams, 844 F.2d at 751.
See Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997).
When evaluating mental impairments, an ALJ must examine the degree of limitations in four areas: (1) activities of daily living, (2) social functioning, (3) concentration, persistence or pace, and (4) episodes of decompensation. If the ALJ rates the degree of a claimant's limitation in the first three categories as none, and in the fourth category as mild or none, the ALJ will generally conclude, unless the evidence otherwise indicates, that the impairment(s) is(are) not severe.
In his decision, the ALJ found that Mr. Heiman is "slightly restricted in his activities of daily living, not restricted in his ability to maintain social functioning, would seldom, if ever, exhibit deficiencies of concentration, persistence, and pace, and has never had episodes of deterioration or decompensation in work or work-like settings." Based on the evaluation of the evidence and his own observations, the ALJ concluded that plaintiff's "mental condition does not constitute a `severe' impairment." The plaintiff now contests this determination.
(R. at 18).
Id.
During the administrative process, the plaintiff presented both objective and subjective evidence of mental impairment. On December 2, 1998, the plaintiff was evaluated by Dr. Jeanne Frieman, who noted that he was of "low average intelligence" and diagnosed him with "organic brain syndrome with memory deficits and reduced ability to concentrate." Dr. Frieman also reported that Mr. Heiman "may be showing beginning symptoms of Alzheimer's disease." When tested, Dr. Frieman determined plaintiff's verbal IQ to be 78, performance IQ to be 79 and full scale IQ to be 78. Dr. Frieman's evaluation was performed at the suggestion of one of plaintiff's examining physicians, Dr. Sharon McKinney, who observed that Mr. Heiman had "poor memory" and was "slow at thought processing."
(R. at 405).
Id.
(R. at 404).
(R. at 399).
In addition to the medical evidence supplied by Dr. Frieman's report, the plaintiff presented subjective evidence of a mental impairment through his own testimony and that of his wife, Mrs. Heiman. The plaintiff testified that back pain was causing him to lose concentration while he was still working on the farm and to become "grouchier" and "stressed out." Reducing the activity levels improved plaintiff's mood. Mrs. Heiman testified that, in her opinion, the plaintiff did not have the "mental flexibility" to adjust to another kind of work and that he functioned well only in "his element." In addition to the testimony presented during the administrative hearing, Dr. Frieman's report reflects that plaintiff "was depressed and irritable when he kept trying to work while in pain . . . is easily tired . . . has trouble starting things and difficulty completing things . . . [and] has no interests or hobbies and rarely sees friends."
(R. at 42-43).
(R. at 53).
(R. at 64-65).
(R. at 403).
Despite physicians' observations that the plaintiff had beginning symptoms of Alzheimer's disease, poor memory, reduced ability to concentrate, and low average intelligence; a diagnosis of organic brain syndrome; and testimony from both the plaintiff and the plaintiff's wife about his ability to adapt to new working conditions and to perform routine household chores such as laundry and oil changes, ALJ found against the plaintiff on the question of mental impairment. In so doing, ALJ appears to reject Dr. Frieman's unchallenged opinion that the plaintiff exhibits symptoms of a mental impairment. The only evidence the ALJ uses to discount Dr. Frieman's opinion is his own statement that "[a]t the hearing, the Administrative Law Judge observed that Mr. Heiman was able to answer questions, recall dates with accuracy and in general participate fully in the proceedings." As the plaintiff points out in his Initial Brief, the ALJ "is not a medical expert" and may not substitute his own opinion for that of a physician. Furthermore, the ALJ should not extrapolate from the plaintiff's performance during the hearing that the plaintiff would be able to fully participate in a setting of a new job. During the hearing, plaintiff was prepared by his counsel and answered questions related solely to himself, his prior job, and his physical abilities and ailments.
See Miller v. Chater, 99 F.3d 972, 977 (10 Cir. 1996).
As noted above, the plaintiff's burden at step two of the sequential inquiry is a minimal one. Mr. Heiman needs only to show that his mental impairment would have more than a minimal effect on his ability to work. The government advances an argument that the plaintiff must demonstrate a "disabling" mental disturbance. If this were the case, the plaintiff would be required to show that the mental disturbance "must result in a severe functional loss establishing an inability to engage in substantial gainful activity." The court disagrees and notes that the law in the Tenth Circuit requires merely a demonstration of a "severe," not "disabling" impairment, and the precedent proposed by the defendant is not binding on this court.
Defendant's Brief In Support of The Administrative Decision And In Reply To Plaintiff's Brief.
Id, citing Trenary v. Bowen, 898 F.2d 1361, 1364 (8th Cir. 1990).
Plaintiff's testimony reveals that increased levels of activity cause him to suffer stress and irritation. Dr. Frieman observed that the plaintiff "concentrates poorly and has memory deficits" and "often needs directions and questions repeated." Contrary to the ALJ's determination, as memorialized in the Psychiatric Review Technique Form, the evidence shows that the plaintiff is significantly restricted in his activities of daily living, social functioning, and concentration, persistence or pace. Furthermore, it appears that increased pain and anxiety in response to higher levels of physical activity, resulting in higher levels of stress and loss of sleep, could constitute episodes of decompensation.
(R. at 405).
The court finds that substantial evidence does not support the ALJ's ruling that the plaintiff does not have a severe mental impairment. Based on the undisputed medical evidence, the court concludes that plaintiff has clearly satisfied the "de minimis" showing that he has a severe mental impairment which has more than a minimal impact on his ability to work.
B. PLAINTIFF'S PHYSICAL IMPAIRMENT — ALJ'S CREDIBILITY DETERMINATION AND PAIN ANALYSIS
The plaintiff in this case also challenges the credibility determination made by the ALJ in the context of determining the severity of plaintiff's alleged disability. The ALJ's credibility determination must be supported by substantial evidence. The ALJ may judge the truthfulness of plaintiff's subjective claims of pain in the course of evaluating the alleged impairment. The court will not reverse an ALJ's determination when supported by substantial evidence.
The 1987 case of Luna v. Bowen, provides the analytical framework for analyzing allegations of disabling pain.
If a pain-producing impairment is demonstrated by objective medical evidence, the decision maker must consider the relationship between the impairment and the pain alleged. The impairment or abnormality must be one which could reasonably be expected to produce the alleged pain. . . . If an appropriate nexus does exist, the decision maker must then consider all the evidence presented to determine whether the claimant's pain is in fact disabling.
834 F.2d 161, 163 (10th Cir. 1987).
The initial phase of the inquiry — the objective impairment — is demonstrated without regard to subjective evidence. Next, a loose nexus between the impairment and the claimed pain is required to establish the prerequisite relationship. If an impairment is expected to produce some pain, allegations of disabling pain emanating from the impairment are sufficiently consistent to satisfy this part of the evaluation process. Finally, the fact-finder must determine whether, considering all relevant evidence, the claimant is disabled. Included in the relevant evidence are the claimant's subjective allegations of disabling pain. When evaluating such subjective allegations, the ALJ may determine claimant's credibility and accept or reject, in part or in full, his testimony.
See Williams v. Bowen, 844 F.2d 748, 753 (10th Cir. 1988); see also Corber v. Apfel, 2000 WL 1545787 (D. Kan. 2000).
See Luna, 834 F.2d at 163-64.
Id. at 164.
See Social Security Ruling 96-7p, 61 Fed. Reg. at 54486. ("In making a finding about the credibility of an individual's statements, the adjudicator need not totally accept or totally reject the individual's statements.").
The court finds that the first two prongs of the analytical framework advanced in Luna are satisfied. Plaintiff suffers from a pain producing impairment — arthritis; and such pain-producing impairment is one which "could reasonably be expected to produce the alleged pain." The court must now determine whether the ALJ properly evaluated both the objective medical evidence and plaintiff's subjective allegations of disabling pain.
The ALJ concluded that plaintiff's allegations of disabling pain were no more than partially credible. Credibility determinations are peculiarly the province of the finder of fact, and the court will not upset such determinations absent a showing that they are not supported by substantial evidence. "[A]bsence of an objective medical basis for the degree of severity of pain may affect the weight to be given to the claimant's subjective allegations of pain, but a lack of objective corroboration of the pain's severity cannot justify disregarding those allegations." Subjective testimony that a claimant suffers pain, by itself, cannot establish a finding of disability. However, the court recognizes that the severity of the pain is inherently subjective. Therefore, the court must review whether findings of credibility are "closely and affirmatively linked to substantial evidence" and are not just a "conclusion in the guise of findings."
(R. at 22).
See Williams, 844 F.2d at 755 (special deference is traditionally afforded a trier of fact who makes a credibility finding); see also Adams v. Chater, 93 F.3d 712, 715 (10th Cir. 1996).
See Luna, 834 F.2d at 165.
See Musgrave v. Sullivan, 966 F.2d 1371, 1376 (10 Cir 1992); see also Grossett v. Bowen, 862 F.2d 802, 806 (10 Cir 1988).
See Luna, 834 F.2d at 165.
See McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002) (citations omitted).
The court must further evaluate whether "substantial evidence supports the ALJ's reasons for discounting plaintiff's subjective evidence." Factors to be considered include, but are not limited to, "the levels of medication and their effectiveness, the extensiveness of the attempts (medical and nonmedical) to obtain relief, and the frequency of medical contacts. . . ." In the course of his analysis, the ALJ must "explain why the specific evidence relevant to each factor led him to conclude claimant's subjective complaints were not credible."
See Corber, 2000 WL 1545787 (D. Kan. 2000), citing Bean v. Chater, 77 F. 3d 1210, 1213 (10th Cir. 1995).
See Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (citations omitted).
Id.
In his decision, the ALJ set forth an exhaustive list of factors used in evaluating credibility of plaintiff's and Mrs. Heiman's testimony:
In evaluating the testimony, the claimant's prior work record and information and observations by treating and examining physicians and third parties relating to such matters as the duration and frequency and intensity of any pain; precipitating and aggravating factors; type, dosage, effectiveness and adverse side-effects of any pain medication; treatment, other than medication, for relief of pain; functional restrictions; and the claimant's daily activities should also be considered. Also, a claimant's persistent attempts to find relief for his pain and his willingness to try any treatment prescribed, regular use of crutches or a cane, regular contact with a doctor, and the possibility that psychological disorders could combine with physical problems could be relevant to the credibility determination.
(R. at 18), citing Luna, 834 F.2d 161. See also Kepler v. Chater, 68 F.3d 387, 390 (10th Cir. 1995).
Based on his evaluation of the relevant factors, the ALJ determined that plaintiff's and Mrs. Heiman's testimony about the extent of plaintiff's pain and his ability to work was no more than partially credible. The plaintiff now argues that ALJ's credibility determinations are "unsupported by substantial evidence and are mere exaggerations of otherwise credible statements and constitute isolated bits of evidence that the ALJ has attempted to portray as substantial."
Plaintiff's Initial Brief, p. 20.
The ALJ's decision appears to be based in large part on his evaluation of observations made by various physicians during plaintiff's treatment and consultation visits and on the comparison between plaintiff's description of the limitations on his daily activities with the activities he actually engaged in during the relevant time period. The court will consider relevant factors in turn to decide whether the ALJ's conclusion is supported by substantial evidence.
At the initial stage of the inquiry, the ALJ set forth a laundry list of plaintiff's daily activities, which include spending a few minutes on a treadmill, resting in a recliner to relieve pain in his back and swelling in his ankles, doing laundry, working in his shop, reading newspapers and mail, driving a car into town to get mail and attending church weekly. While the ALJ did not make an explicit observation, it appears that he used this array of limited daily activities to show that the plaintiff was not completely disabled and extrapolated that plaintiff would be able to work. However, the plaintiff does not need to be totally incapacitated in order to be disabled.
See Jones v. Sullivan, 804 F.Supp. 1398, 1405 (D. Kan. 1992), see also Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001).
The nature of daily activities is one of many factors to be considered by the ALJ when determining the credibility of pain testimony. The ALJ must keep in mind that the sporadic performance of household tasks or work does not establish that a person is capable of engaging in substantial gainful activity. Therefore, while plaintiff's daily activities should be considered when making a disability determinations, they should not be relied on, in the absence of other evidence, to establish that a person is able to engage in substantial gainful activity.
See Thompson v. Sullivan, 987 F.2d 1482, 1489 (10th Cir. 1993).
See Thompson, 987 F.2d at 1490; see also Broadbent v. Harris, 698 F.2d 407, 413 (10th Cir. 1983) (the fact that claimant admitted to working in his yard, performed a few household tasks, worked on cars, and took occasional trips was found by the court to be activities not conducted on a regular basis and did not involve prolonged physical activity; while this evidence may be considered along with medical testimony in the determination of whether a party is entitled to disability benefits, such diversions do not establish, without more evidence, that a person is able to engage in substantial gainful activity.).
In addition to discussing basic daily activities of the plaintiff, ALJ notes that the plaintiff testified about injuries sustained while performing physical work at the time he claims to be unable to work. ALJ identifies six specific instances, which, he argues, support his credibility determination: (1) injury sustained while working in a bin; (2) injury sustained while pulling a trailer full of sawdust with his truck; (3) injury sustained while welding; (4) head injury when he "hit [his] head on front of hydrocat two weeks ago while moving hay;" (5) injury sustained while welding on a bunker and trying to pick it up and move it; and (6) driving a tractor for his brother. These six incidents took place between March of 1997 and Fall of 1998 — a span of approximately one and a half years.
Defendant contends that the plaintiff thus continued to engage in a "wide range of farm activities." The court disagrees. As an initial matter, it is important to note that at least on three occasions, the injury plaintiff sustained was unrelated to physical exertion — something fell on his thumb while he was working in a bin, a truck he was driving was hit by another vehicle, and his eyes sustained burns while he was assisting a welder. The nature of these injuries does not reveal the type of work plaintiff was engaged in on these six separate incidents. Furthermore, plaintiff's testimony that he could lift a bucket of feed, pick up a bunker or move hay are consistent even with the ALJ's determination of plaintiff's RFC. The court agrees with the plaintiff that six isolated incidents spread over a period of approximately 18 months do not substantiate ALJ's finding that plaintiff lacked credibility when he testified that he no longer could engage in substantial work activity.
As noted later, ALJ determined that the plaintiff was able to lift objects weighing up to 20 pounds.
The majority of the ALJ's decision regarding plaintiff's credibility is based on his evaluation of the medical record. The ALJ concludes that objective medical evidence does not support plaintiff's allegations of disabling pain. As noted above, the reviewing court may not substitute its opinion for that of the ALJ and must allow the ALJ's determination of credibility to stand unless it is not supported by substantial evidence. However, the ALJ cannot abstract selective pieces favorable to his position and ignore evidence favorable to the plaintiff. In the instant case, the court finds that ALJ has ignored a number of medical observations favorable to the plaintiff and instead focused on evidence supporting his ultimate conclusion.
See Owen v. Chater, 913 F. Supp. 1413, 1420 (D. Kan. 1995); see also O'Connor v. Shalala, 873 F. Supp. 1482, 1491 (D. Kan. 1994); Jones v. Sullivan, 804 F. Supp. 1398, 1406 (D. Kan. 1992); Claassen v. Heckler, 600 F. Supp. 1507, 1511 (D. Kan. 1985).
In his decision, the ALJ states that "[t]he medical reports and consultative examinations sometimes describe Mr. Heiman as having more physical ability than what he has described." In particular, ALJ points to an observation made by Dr. Walsh that in November 1995 the plaintiff showed "high fitness for age and sex." The court finds ALJ's reliance on Dr. Walsh's 1995 observation presents an incomplete picture of the plaintiff's condition at the time of the administrative hearing. Although the plaintiff may have been fit for his age in 1995, this assessment was made 11 months prior to the alleged onset of his disability. The record shows that in 1999 Dr. Walsh himself noted on plaintiff's report "history of progressive bilateral knee and back pain with peripheral edema." Equally important to the court is Dr. Walsh's observation that although it is "always difficult to quantify another individual's pain, . . . Mr. Heiman did and does seem to be truly in pain with [sic] his knees . . ." The observations of Dr. Walsh, plaintiff's treating physician, should be given great weight. The ALJ impermissibly ignored both Dr. Walsh's medical diagnosis of plaintiff's problem and his assessment of plaintiff's credibility.
(R. at 20).
(R. at 337).
(R. at 406).
Id.
Next the ALJ stated that in November of 1996 Dr. Baker "did not note any ongoing restrictions," and that "Drs. McKinney and Desai noted few, if any, difficulties with orthopedic maneuvers while conducting their examinations." The court again notes that in relying on Dr. Baker's 1996 opinion, the ALJ, while properly describing one of Dr. Baker's notations, omitted from his decision Dr. Baker's observation that the x-rays of the lumbar spine "reveal degenerative disease, multi level, and some in the lower thoracic spine" and the x-rays of the knees reveal "perhaps very early minimal degenerative disease." In fact, Dr. Baker's ultimate impression was that plaintiff had "spinal arthritis suspected of early osteoarthritis." Similarly, the ALJ failed to acknowledge Dr. McKinney's observation that plaintiff had great difficulty standing on one foot and trying to stand on his toes and that he had "very early arthritis knees, hips and back." In addition to her medical observations, Dr. McKinney also stated that "Mr. Heiman is sincere in his inability to work."
(R. at 20).
(R. at 415).
Id.
(R. at 399).
Id.
The ALJ next questioned plaintiff's assertion that "his knees are filled with arthritis, but the doctors won't give me new knees because I'm too young," on the grounds that "no doctor provided written opinion showing extensive arthritis or suggesting or discussing the possibility of a knee replacement or any other surgery." While no doctor has opined in writing that plaintiff's knees are "filled with arthritis," at least two doctors — Dr. Baker and Dr. McKinney — did supply a diagnosis of early arthritis and degenerative disease. As discussed above, plaintiff suffers from low average intelligence and has an IQ of 78. A person who has no medical training and low average intelligence may describe somewhat inaccurately his medical condition through honest misunderstanding.
(R. at 21).
See FN 60 and FN 62 above.
The ALJ's report also reflects that despite his claim of only being able to sit for 30 minutes, stand for 5 minutes and walk for 30 minutes, plaintiff reported that he started exercising by walking ½ mile on a treadmill three times a week. At the hearing, the plaintiff testified that he used a treadmill in the mornings to work out his stiffness, but he could not walk more than 1-2 minutes. In his decision, the ALJ stated that "there is nothing in the medical records that would account for such a drastic reduction in capability."
(R. at 357).
(R. at 47-48).
The plaintiff argues that there is nothing inconsistent about his testimony that for his exercise he walked approximately ½ mile and that he could walk only 30 minutes at a time. It certainly is possible for a large man plagued by joint pain to walk so slowly that it would take him 30 minutes to walk ½ mile. The court agrees with the plaintiff that substantial evidence does not support the ALJ's conclusion. Furthermore, no evidence was presented that would help the court clarify why at the hearing the plaintiff stated that he could walk only for 1-2 minutes in the mornings. The plaintiff has reported that his pain is most acute in the morning or when he rises from a seated position. Therefore, it is possible that plaintiff is only able to walk on his treadmill for 1-2 minutes in the mornings, when his pain is most severe, yet is also able to exercise for longer periods of time later in the day.
The ALJ considered the extent of plaintiff's efforts to relieve his pain as a factor in determining credibility. The ALJ concluded that despite allegations of disabling pain, the plaintiff was only taking over-the-counter medication, did not use an assistive device, and has never attended a pain clinic nor used "work hardening" or a TENS unit. The government argues that non-aggressive treatment and use of non-prescription pain medication are both inconsistent with a disabling impairment. However, the ALJ fails to mention that plaintiff did attempt to take prescription medication for his pain, but was forced to discontinue its use due to the side effects reported while on these medications. Finally, with respect to lack of aggressive treatment or involvement in a TENS unit, the record indicates that this option was never offered to the plaintiff by any of his physicians. Furthermore, there is no evidence that either of the options suggested by the ALJ would have restored plaintiff to full health. "The court is not in a position to prescribe treatment and cannot punish the plaintiff for never receiving treatment which was not offered to [him]."
See Noble v. Callahan, 975 F. Supp. 980, 986 (D. Kan. 1997); see also Jordan v. Heckler, 835 F. 2d 1314, 1315 (10th Cir. 1987) (claimant not disabled who did not use crutches and controlled his pain with Extra Strength Tylenol).
(R. at 279 (plaintiff reported "feeling drunk"), 353 (plaintiff reported Indocin provided no relief), 409 (plaintiff reported medication causing some impotence)).
See Gumm v. Apfel, 17 F. Supp. 2d 1213, 1221 (D. Kan. 1998).
Plaintiff diligently tried to seek medical help and never wavered in his claims of pain. He constantly takes medication and attempts to alleviate his pain by resting with his feet elevated. Examining physicians, including his own treating physician, have concluded that plaintiff is sincere and, by extension, credible in his complaints about disabling pain. Based on the preceding analysis, the court concludes that the ALJ's determination of credibility is not supported by substantial evidence.
C. ALJ'S RESIDUAL FUNCTIONAL CAPACITY DETERMINATION
At step five, the burden is on the Commissioner to show that the plaintiff has RFC to perform work that exists in the national economy. Plaintiff claims that the ALJ has committed a number of reversible errors at this stage of his analysis. In particular, plaintiff claims that ALJ's conclusion that plaintiff may do light exertional work is not supported by substantial evidence because the ALJ erred in ignoring the report of Dr. Desai, used an incomplete hypothetical when soliciting testimony from the VE, and improperly relied on the Secretary's medical vocational guidelines (the "grids").
See Rutledge v. Apfel, 230 F.3d 1174 (10th Cir. 2000); see also Miller v. Chater, 99 F.3d 972, 975 (10th Cir. 1996), Thompson v. Sullivan, 987 F.3d 1482, 1487 (10th Cir. 1993).
See 20 C.F.R. part 404, subpt. P, App.2.
The ALJ must ascertain the claimant's RFC based on all of the relevant evidence, including medical records, observations of treating physicians and others, and the claimant's own description of his or her limitations. The determination of RFC includes a consideration of all symptoms, including pain, and claimant's mental impairment that qualifies as a severe nonexertional impairment.
See Noble v. Callahan, 978 F. Supp. 980, 987 (D. Kan. 1997), citing 20 C.F.R. §§ 404.1545-46, 416.945-46).
See Hagris v. Sullivan, 945 F. 2d 1482, 1491 (10th Cir. 1991) (Holding that a severe mental impairment is a nonexertional impairment that must be considered in evaluating whether the claimant's RFC is diminished).
Plaintiff argues the ALJ improperly ignored the only medical report showing his RFC determination — that of Dr. Desai. Defendant responds that Dr. Desai's report does not actually determine plaintiff's RFC but represents merely a recitation of plaintiff's subjective complaints not supported by Dr. Desai's own findings. The record appears to contain two reports by Dr. Desai outlining what plaintiff claims to be the objective determination of his RFC. The first is in a report beginning on page 387 and concluding on page 391 of the record; the second is in a report beginning on page 410 and concluding on page 412 of the record. The first report contains a table entitled "Medical Assessment of Ability to Do Work-Related Activities (Physical)." This table contains notations of various limitations which the plaintiff now argues constitute his RFC. The court disagrees.
It is worth noting that the same limitations appear in two other places in Dr. Desai's reports — in the History of Present Illness section on page 387 of the transcript and in the History of Present Illness section on page 410. Defendant argues and the court agrees that both sections represent nothing more than recitations of plaintiff's subjective complaints and his own descriptions of pain and physical limitations. Dr. Desai, in completing the table on page 389, did not identify any medical findings that support the described findings. Such notations should have been made in light of the following admonition printed on the form: "IT IS IMPORTANT THAT YOU RELATE PARTICULAR MEDICAL FINDINGS TO ANY ASSESSED REDUCTION IN CAPACITY. THE USEFULNESS OF YOUR ASSESSMENT DEPENDS ON THE EXTENT TO WHICH YOU DO THIS." Given the lack of Dr. Desai's own notations of the provenance of his RFC determination and observations noted by Dr. Desai in other parts of his diagnostic reports, the court finds that Dr. Desai's alleged RFC determination is inconsistent with his own report and therefore may have been properly discounted by the ALJ. Where a physician's opinion is itself inconsistent, the ALJ is entitled to give little weight to that opinion. The court therefore concludes that the ALJ did not err in excluding Dr. Desai's report purporting to establish plaintiff's RFC from his own determination.
(R. at 389).
See Jenkins v. Chater, 1996 U.S. App. LEXIS 6085, *6-7 (10th Cir. April 1, 1996).
Plaintiff also challenges the conclusion reached by the vocational expert that a significant number of jobs in the restricted light category are available to the plaintiff. Plaintiff claims that the hypothetical presented to the VE by the ALJ did not substantially reflect all the impairments affecting the plaintiff. In particular, plaintiff argues that the ALJ erred in excluding evidence of plaintiff's mental impairment from the hypothetical and in inaccurately describing the extent of plaintiff's allegedly disabling pain and limitations that stem from it.
The ALJ is allowed some latitude in formulating the hypothetical; however, the hypothetical must contain "a full description of a claimant's impairments in order for the testimony elicited by such questions to constitute substantial evidence to support the ALJ's decision." Therefore, the claimant is entitled to "have his nonmedical objective and subjective testimony of pain evaluated by the ALJ and weighed alongside the medical evidence." The ALJ may exclude such evidence from the hypothetical as the ALJ deems neither completely credible nor supported by objective medical evidence.
See Wiley v. Chater, 967 F. Supp. 446, 452 (D. Kan. 1997).
See Huston v. Bowen, 838 F.2d 1125, 1131 (10th Cir. 1988).
See Boone v. Apfel, 1999 U.S. App. LEXIS 20259, * 12 (10th Cir. August 26, 1999), citing Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996) (hypothetical questions need only reflect impairments and limitations supported by the record).
Plaintiff argues that the testimony of the plaintiff and of the plaintiff's wife during the administrative hearing regarding plaintiff's alleged mental impairments should have been included in the hypothetical. The ALJ relied on his determination that the testimony in question was only partially credible to exclude evidence of mental impairments and more severe physical limitations due to pain from the hypothetical. The court has found in Part B of this Report and Recommendation that the ALJ's credibility determination was not supported by substantial evidence. The court concluded that the testimony of both the plaintiff and his wife were credible and supported by objective medical evidence. Furthermore, the court found that plaintiff has a severe mental impairment that limits his ability to do work. Based on these conclusions, the court must now evaluate whether the ALJ may rely on the VE's testimony given in response to his hypothetical to substantiate his finding of "not disabled."
The ALJ presented the VE with a hypothetical describing the plaintiff as (a) suffering from knee and back pain and having high blood pressure, (b) completing high school but having low average intelligence, (c) being unable to lift more than 20 pounds at a time or five pounds with any frequency, and (d) requiring an opportunity to sit or stand during a work day. Absent from this hypothetical was evidence that plaintiff was slow in his thought process or that he was suffering from organic brain disorder and showing the beginning symptoms of Alzheimer's disease. Similarly absent was evidence of severe pain that would preclude even a sit/stand option. Based on the hypothetical presented by the ALJ, the VE concluded that the plaintiff could engage in two types of restricted light work — gate tender and machine tender and in one type of sedentary work — security monitor.
(R. at 66).
Id.
(R. at 67).
When a hypothetical is properly formulated, "the expert's testimony that jobs existed which plaintiff could perform constitute substantial evidence supporting the ALJ finding." However, when a hypothetical does not contain limitations and restrictions which should have been included therein, such hypothetical does not constitute substantial evidence and the ALJ may not rely on the VE testimony to conclude that significant number of jobs are available to the plaintiff in the national economy.
See Noble v. Callahan, 978 F. Supp. 980, 987 (D. Kan. 1997).
The court finds that the hypothetical used by the ALJ did not correctly reflects the plaintiff's RFC. Because both plaintiff and his wife presented credible testimony about his mental impairments and severe pain, a more accurate assessment of plaintiff's ability to find work in the national economy is found in the VE's later testimony in which she was asked to assume that plaintiff was credible. In her response, the VE testified that plaintiff's pain, inability to stay on task and suspect attendance would preclude his ability to function on the jobs she identified as available based on the hypothetical. This conclusion is further supported by Dr. Frieman's report that reveals the plaintiff could not retain simple instructions long term and was not likely to benefit from training. Because the court deems plaintiff's testimony to be credible, the inevitable conclusion on the record appears to be that there are no jobs available in the national economy that the plaintiff could perform given his RFC.
(R. at 69).
(R. at 405).
Plaintiff's final point of contention is the propriety of the ALJ's application of the grids. In his decision, the ALJ stated the following:
The claimant is 54 years of age, has 12 years of education, and has past relevant work experience. The claimant does not have the residual functional capacity to perform past relevant work, and acquired no skills which are transferrable to work within his residual functional capacity.
If the claimant had the capacity to perform a full range of sedentary work, Rule 202.14 of Table No. 1, Appendix 2, Subpart P, Regulations No. 4, would direct a conclusion of "not disabled."
Although the claimant cannot perform the full range of light work, using the above-cited rule as a framework for decisionmaking, there is a significant number of jobs in the national economy that he could perform, as identified by the vocational expert.
R. at 24.
The grids contain tables of rules which direct a determination of disabled or not disabled on the basis of a claimant's RFC category, age, education, and work experience. The grids cannot be used conclusively unless the claimant's characteristics precisely match the criteria of a particular rule. Use of the grids is particularly inappropriate when the claimant has nonexertional limitations, such as pain and mental impairments. In such cases, the grids may only serve as a framework to determine whether sufficient jobs remain within a claimant's RFC range.
See 20 C.F.R. Pt. 404, Subpt. P, App.2.
See Thompson v. Sullivan, 987 F.2d 1482, 1487, citing Frey v. Bowen, 816 F.2d 508, 512 (10th Cir. 1987).
See Hagris v. Sullivan, 945 F.2d 1482, 1490 (10th Cir. 1991).
Id.
An ALJ may not rely conclusively on the grids unless he finds: (1) that the claimant has no significant nonexertional impairments, (2) that the claimant can do the full range of work at some RFC level on a daily basis, and (3) that the claimant can perform most of the jobs at that RFC level. Each of these findings must be supported by substantial evidence.
See Thompson, 987 F.2d at 1487-88.
Given the presence of the nonexertional limitations of pain and mental impairments and in light of the VE testimony that the plaintiff could not perform any job in the national economy, the ALJ erred by relying on the grids.
The court finds that the Commissioner did not satisfy his burden at this step 5 to show that the plaintiff has residual functional capacity to perform other work available in the national economy.
D. PROPRIETY OF A REMAND
When a decision by the Commissioner is reversed, it is within the court's discretion to remand either for further administrative proceedings or for an immediate award of benefits. A key factor the court must consider when remanding is whether further proceedings would serve a useful purpose or would merely delay the receipt of benefits. The decision to direct an award of benefits "should be made only when the administrative record of the case has been fully developed and when substantial evidence on the record as a whole indicates that the claimant is disabled and entitled to benefits."
See Ragland v. Shalala, 992 F.2d 1056, 1060 (10th Cir. 1993).
See Harris v. Secretary of Health Human Services, 821 F.2d 541, 545 (10th Cir. 1987).
Gilliland v. Heckler, 786 F.2d 178, 184 (3rd Cir. 1986).
The court finds that the ALJ committed the following errors: (1) the ALJ improperly disregarded objective medical evidence in concluding that the plaintiff does not suffer from a severe mental impairment; (2) the ALJ improperly concluded that the testimony of the plaintiff and of his wife regarding his nonexertional limitations was no more than partially credible; and (3) the ALJ improperly excluded credible evidence from the determination of the plaintiff's RFC and erroneously concluded that a significant number of jobs were available to the plaintiff in the national economy.
Of the errors committed by the ALJ, the court deems the last one to be the most significant in determining whether additional proceedings on remand would serve a useful purpose. Absent the VE's testimony regarding plaintiff's opportunities given his true condition, the court would be forced to remand for further administrative proceedings. However, in the instant case the VE testified that if the plaintiff were credible, his pain, inability to stay on task and suspect attendance would preclude him from performing any job. Furthermore, the court has the benefit of an observation by Dr. McKinney, who stated that "[a]s far as working goes, [the plaintiff] is really very limited unless we can find some way to stop the muscle pain (strengthening does not usually work in these types of things) and do something about his joint pain. Even then if he goes back to physical labor he will be causing increased damage to his joints and increased weakness of his motor units so he is in a bind and I don't see that he will be able to work in the future." No physician who has ever examined the plaintiff believes that any of his symptoms are exaggerated.
(R. at 397). Similarly, in a letter to Mr. Thomas Leising, Dr. Walsh observed that because of Mr. Heiman's "severe pain," it was not unreasonable for him to discontinue milking as his primary occupation. (R. at 406).
Based on all available credible testimony, it appears that the plaintiff is precluded from doing physical labor due to the severe joint and muscle pain and is precluded from doing non-physically intensive work due to the severe mental impairments such as poor memory, low intelligence, early Alzheimer's and organic brain syndrome. The evidence on the record is more than substantial that plaintiff's impairments prevent him from engaging in any work. The court finds that a remand for further proceedings would serve no useful purpose and would merely delay the receipt of benefits. Therefore, this case should be reversed and remanded for an immediate award of benefits.
IT IS THEREFORE RECOMMENDED that this case be reversed and remanded to the Commissioner for an immediate award of benefits as of the alleged onset date of disability, September 21, 1996.
Copies of this recommendation and report shall be mailed either electronically or via the United States Postal Service to counsel of record for the parties. Pursuant to 28 U.S.C. § 636 (b)(1), as set forth in Federal Rule of Civil Procedure 72(b) and D. Kan Rule 72.1.4, the parties may serve and file written objections to the recommendation within 10 days after being served with a copy.
The filing of this Report and Recommendation terminates the referral of this case to the undersigned.