Opinion
Civil No. 01-4125(JBS).
December 17, 2002
Lisa E. Kabel-Barmat, Esq., Jacobs Schwalbe Petruzzelli, P.C., Cherry Hill, NJ, Attorney for Plaintiff.
Christopher J. Christie, United States Attorney, By: Anthony J. LaBruna, Jr., Assistant United States Attorney, Newark, NJ, Attorney for Defendant.
OPINION
This matter is presently before the court pursuant to section 205(g) of the Social Security Act (the Act), as amended, 42 U.S.C. § 405(g), to review the final decision of the Commissioner of the Social Security Administration ("Commissioner"), denying the application of plaintiff, Pedro Hernandez, for Disability Insurance Benefits ("DIB") under Title II and Supplemental Security Income ("SSI") under Title XVI of the Social Security Act for any time following June 13, 1994.
Plaintiff argues that the decision of the Commissioner is not supported by substantial evidence because (1) he did not follow this Court's directions on remand because he failed to consider the reports of Drs. Reiner and Rushton, (2) he inappropriately rejected plaintiff's complaints of disabling pain, (3) he relied on flawed vocational expert testimony, and (4) he did not discuss whether plaintiff is capable of performing the specific functions required by sedentary work. For the reasons stated herein, this Court finds that the decision of the Commissioner must be remanded to determine the date on which plaintiff's disability ended because substantial evidence does not support the June 13, 1994 recovery date.
I. BACKGROUND
A. Procedural History
The appeal before this Court combines two applications for benefits plaintiff filed with the Social Security Administration, alleging a disability from the same back injury.
1. First Application for Benefits
Plaintiff filed his first application on November 17, 1993 for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB"), alleging an onset date of February 9, 1993. (R. at 15.) His application was denied initially and on reconsideration. (Id.) Plaintiff then filed a timely request for review by an Administrative Law Judge ("ALJ"). (Id.) The hearing was held on October 18, 1994 before ALJ Samuel J. Dantoni. (Id.) ALJ Dantoni issued his decision on June 23, 1995 in which he found that plaintiff was disabled, but solely for the period from February 9, 1993 through June 13, 1994. (Id.)
Plaintiff filed a request for review of the ALJ's decision. (R. at 61.) The Appeals Council denied the request on September 10, 1996, and plaintiff appealed the decision to this Court on October 17, 1996. (R. at 61-62.) The Appeal was docketed with this Court as Civil Action No. 96-4905 (JBS). (R. at 59.) By an Opinion and Order dated August 3, 1998, this Court vacated the ALJ's decision and remanded the case for reconsideration based on new and material evidence that had not been considered by the ALJ. (R. at 76-77.) The ALJ had not been presented with the reports of Dr. Rushton, who treated plaintiff from April 17, 1995 through December 22, 1995 and had performed a second surgery on plaintiff's back. (R. at 77, 79, 83.) This Court remanded the matter with instructions to consider the new evidence and to reconsider Plaintiff's subjective complaints of pain.
The remand hearing was held on January 26, 1999 before ALJ Mark G. Barrett. (R. at 15.)
2. Second Application for Benefits
Meanwhile, plaintiff filed a second application for SSI and DIB on October 17, 1996, alleging an inability to work date of September 1, 1994 because of his back pain. (R. at 15.) This application also went through the administrative process and was denied initially and upon reconsideration. (Id.)
Because of the interrelation of the remanded November 17, 1993 application and the October 17, 1996 application, ALJ Barrett considered both at the January 26, 1999 remand hearing. (Id.) He issued his decision on May 28, 1999. (Id.) He found, like ALJ Dantoni, that plaintiff's disability did not extend past June 13, 1994. (Id. at 15-24.)
ALJ Barrett based his denial of benefits for the period after June 13, 1994 on plaintiff's first application for benefits and dismissed plaintiff's second application, insofar as it pertained to the issue of "disability" after June 13, 1994, under principles of res judicata. (R. at 23-24.)
Plaintiff made a timely request for review that was denied by the Appeals Council on July 20, 2001. (R. at 4-6.) He then filed the present action, Civil Action number 01-4125 (JBS), with this Court on August 31, 2001.
B. Plaintiff's Medical History
Plaintiff, Pedro Hernandez, sustained a back injury while working as a mechanic for Transmission System, a job which required him to stand for most of the day and lift 75 to 80 pound transmissions. (R. at 62.) Previously, he had worked for a landscaping company where he drove a truck and a sitting lawnmower, for American Retail Ticketing, Inc., a clothing warehouse which has since closed, where he counted clothing and made sure the accounts were proper, and for the Green Briar restaurant where he was a cook. (R. at 21, 63.)
1. From February 9, 1993 through June 13, 1994 (period plaintiff found "disabled")
This Court explained plaintiff's medical history from February 9, 1993 through June 13, 1994 in its Opinion of August 3, 1998. (R. at 59-84.) In review, plaintiff's medical history during the period was based on the reports of three physicians, Drs. Reiner, Sheth, and Klein.
Dr. Reiner was plaintiff's treating physician. (R. at 64.) On January 5, 1993, he diagnosed plaintiff with a herniated disc at the L4-L5 level. (Id.) On February 9, 1993, he diagnosed a Medrol Dose Pack for plaintiff's pain. (Id.) On February 16, 1993, he noted that the plaintiff was still suffering from back and leg pain and asked him to have a Myelogram with enhanced CAT scan. (Id.) The tests also showed that plaintiff was suffering from a herniated disc. (R. at 66.) On April 6, 1993, Dr. Reiner suggested that plaintiff undergo surgery because he was not responding to conservative care. (Id.) Dr. Reiner performed the Lubmar Laminectomy L4-L5 with Excision of Herniated Disc on April 28, 1993. (Id.)
Dr. Reiner saw plaintiff on August 31, 1993 and noted that his wounds were well-healed and his lumbar motion was satisfactory. (Id.) He advised plaintiff that he could return to work on September 7, 1993. (Id.) However, plaintiff experienced a flare-up of pain and returned to Dr. Reiner on September 23, 1993. (Id.) He prescribed pain medication and told plaintiff to avoid lifting more than 25 pounds for any longer than five or ten minutes. (Id.) Plaintiff did not return to work. (Id.)
Plaintiff visited Dr. Sheth at Cooper Hospital on March 4, 1994 for an MRI of his lumbar spine. (R. at 65.) He diagnosed plaintiff with lumbar spondylosis with degenerative disc disease at levels L3-4 and L4-5. (Id.)
On March 14, 1994, plaintiff visited Dr. Klein at the request of Dr. Reiner. (Id.) He tested his range of motion, sensory impulses, and strength, and determined that plaintiff had pain and should be referred to the Bureau of Vocational Rehabilitation for possible retraining for another kind of employment. (R. at 65, 67.)
On June 13, 1994, the date that the ALJ found that plaintiff's disability ceased, Dr. Reiner filled out a "Medical Assessment of Ability to Do Work Related Activities (Physical)." (R. at 67.) In it, he said that plaintiff could lift ten pounds occasionally and five pounds frequently, could walk or stand for four hours with, or one hour without, interruptions, and could sit for six hours with, or one hour without, interruptions. (R. at 67-68.)
2. From June 14, 1994 through February 9, 1996 (Period of "new" medical history considered in this Court's first Opinion)
The medical evidence from this period was also detailed in this Court's August 3, 1998 Opinion. It includes reports from Drs. Reiner, Golkow, Manning, and Rushton.
On June 15, 1994, Dr. Reiner filled out a "Clinical Assessment of Pain" form where he concluded that plaintiff had pain, but that it should not affect his functioning in everyday activities. (R. at 68.) He also filled out a "Physical Capacities Evaluation" where he stated that in an eight-hour day, he thought plaintiff could sit, stand, or walk for four hours at a time, could lift up to fifty pounds occasionally, and could use his hands and feet for repetitive motions, but could only bend, squat, crawl, climb, or reach above his shoulder occasionally. (R. at 69.)
On September 19, 1994, plaintiff saw Dr. Golkow for a CT of the lumbosacral spine without contrast and multiplanar reformatted reconstructions of the spine. (Id.) He concluded that plaintiff had a "very mild left internalizing JNP at L3-4" and "soft tissue material in the anterior epidural space at L4-5" where he had his previous surgery. (R. at 69-70.)
From April 17, 1995 through December 22, 1995, plaintiff saw Dr. Rushton as his treating physician instead of Dr. Reiner. (Slip Op. at 12-13.) Dr. Rushton performed surgery on plaintiff on August 15, 1995 to facilitate "re-exploration of a left hemilaminectomy, L4, for excision of recurrent extruded disc L4, left." (Slip Op. at 13.) Dr. Rushton reported on February 8, 1996 that plaintiff's recovery from the surgery was uncomplicated. (Id.)
Plaintiff continued to complain of pain. (Id.) Dr. Rushton sent plaintiff to Dr. Manning for myleograms, and on December 19, 1995, she reported that plaintiff had a "recurrent herniation of the L4-L5 disc." (Id.) On December 22, 1995, Dr. Rushton reported that plaintiff would not be able to return to his former employment and estimated that his permanent partial disability would be thirty-five percent. (Id.) On February 9, 1996, he filled out a "Physical Capacity Evaluation" and indicated that plaintiff could sit or stand for four hours and walk for two hours out of an eight hour day. (Id.)
3. Medical History after February 9, 1996 (Evidence not considered by this Court in the first Opinion)
The present administrative record includes additional medical evidence compiled after the record was closed for the first proceeding.
On November 11, 1996, Dr. Blank filled out a "Residual Functional Capacity Questionnaire" where he found that plaintiff could not lift, move, push, or pull any weight, and could only sit one hour, and walk three hours in an eight-hour day. (R. at 122.) He also found that plaintiff could not stand at all. (Id.) Dr. Blank found that plaintiff had the capacity to use his arms continuously, and had a good ability for understanding, remembering and carrying out instructions and for making social adjustments. (R. at 123.)
Dr. Garrett saw plaintiff on January 28, 1997 and found that his had an "acceptable post-operative appearance." Plaintiff then saw Dr. Montiel who completed an orthopedic report about plaintiff's condition on February 1, 1997. (R. at 181.) He noted that plaintiff was complaining of intermittent pain that radiated from his lower back into his right leg. (Id.) His examination found that plaintiff was "well-developed, well-nourished, in no apparent distress. He has no limp in his gait, required no assistive devices." (R. at 182.) He also found that "examination of the cervical spine and paraspinal musculatures revealed no evidence of pain or tenderness" and that "range of motions were noted to be well preserved, no restrictions, no limitations." (Id.)
On February 26, 1997, a state agency medical consultant completed a "Residual Functional Capacity Questionnaire" where he found that plaintiff could handle six hours of sitting, standing, or walking in an eight-hour day, could lift twenty-five pounds frequently, and could push and pull. (R. at 134.) He also found that plaintiff could climb, balance, stoop, kneel, crouch, and crawl frequently and that he had no manipulative, visual, communicative, or environmental limitations. (R. at 135-137.) Another medical consultant reviewed plaintiff's record and indicated his agreement with February 26th findings on May 16, 1997. (R. at 140.)
On October 27, 1998, Dr. Anthony evaluated plaintiff. (R. at 196.) He found that plaintiff's strength and range of motion in both lower extremities for all motions of the hips, knees, ankles, and toes were normal. (R. at 197.) He also found that "passive range of motion of the hips did not reproduce his pain." (Id.) Instead, he found that plaintiff seemed to be pretending to be in pain, stating that:
[p]alpation of the spinous processes and lumbar and thoracic paraspinals was very instructive, as the patient with only touch of his skin would flinch to the point where he was obviously having a non-physiologic reaction to even the most minimal pressure. In addition, I would note that this extended well up into the mid-thoracic region and did not just involve the lumbar region. There was no meaningful examination possible due to this overreactive phenomenon.
(R. at 197-98.) Dr. Anthony also filled out a "Medical Assessment of Ability to do Work Related Activities (Physical)" form on October 27, 1998. (R. at 199-201.) He found that plaintiff could stand, walk, or sit for eight hours per day provided he could change positions during the eight hours. (R. at 200.) He found that plaintiff could not crawl, bend, push, or pull, but that he could climb, balance, stoop, crouch, kneel, reach, feel, and use fine manipulation. (Id.) He also found that plaintiff had not environmental restrictions. (R. at 201.)
An administrative hearing on plaintiff's applications was held on January 26, 1999 before ALJ Barrett. (R. at 202.) Plaintiff testified at the hearing that he was still having pain in his back and numbness in his legs. (R. at 215.) He said that he could only stand for twenty minutes and could only sit for thirty to thirty-five minutes at a time. (R. at 218.)
A vocational expert, Sonya Mocarski, also testified at the hearing. (R. at 225.) She was given several hypothetical examples based on medical reports in the record. Based on Dr. Reiner's June 13, 1994 report and June 15, 1994 report, Dr. Rushton's February 9, 1996 report, and Dr. Binski's February 26, 1997 report, she testified that there were jobs in the national economy for a person with such limitations, such as surveillance system monitor and ticket seller. (R. at 230-39.) However, based on Dr. Blank's November 6, 1996 report, she found that no jobs existed in the national economy. (R. at 234-36.) Plaintiff's attorney, when given the opportunity to examine the expert, classified the Dr. Blank hypothetical as "one pretty outrageous one." (R. at 239.) Yet, ALJ Barrett recognized that Dr. Blank gave a "very favorable report to the claimant." (R. at 254.) Therefore, because there were no other medical records in the file from Dr. Blank, ALJ Barrett kept the record open for 21 days after the hearing to allow plaintiff the opportunity to provide an "additional medical records or reports from Dr. Benjamin Blank." (R. at 254-56.) No additional reports were submitted.
II. DISCUSSION
A. Standard of Review
A reviewing court must uphold the Commissioner's factual decisions if they are supported by "substantial evidence." 42 U.S.C. §§ 405(g), 1383(c)(3); Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied, 507 U.S. 924 (1993). "Substantial evidence" means more than "a mere scintilla."Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotingConsolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The inquiry is not whether the reviewing court would have made the same determination, but, rather, whether the Commissioner's conclusion was reasonable. See Brown, 845 F.2d at 1213. Thus, substantial evidence may be slightly less than a preponderance.See Hanusiewicz v. Bowen, 678 F. Supp. 474, 476 (D.N.J. 1988).
Some types of evidence will not be "substantial" as:
[a] single piece of evidence will not satisfy the substantiality test if the [Commissioner] ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence — particularly certain types of evidence (e.g., that offered by treating physicians) — or if it really constitutes not evidence but mere conclusion.Wallace, 722 F.2d at 1153 (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)).
The reviewing court, however, does have a duty to review the evidence in its totality. See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984). In order to do so, "a court must `take into account whatever in the record fairly detracts from its weight.'"Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (quoting Willbanks v. Sec'y of Health Human Servs., 847 F.2d 301, 303 (6th Cir. 1988) (quoting Univ. Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951))). The Commissioner has a corresponding duty to facilitate the court's review: "[w]here the [Commissioner] is faced with conflicting evidence, he must adequately explain in the record his reasons for rejecting or discrediting competent evidence." Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing Brewster v. Heckler, 786 F.2d 581 (3d Cir. 1986)). Access to the Commissioner's reasoning is indeed essential to a meaningful court review because:
[u]nless the [Commissioner] has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits, to say that his decision is supported by substantial evidence approaches an abdication of the court's duty to scrutinize the record as a whole to determine whether the conclusions reached are rational.
Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978).
Apart from the substantial evidence inquiry, a reviewing court is entitled to satisfy itself that the Commissioner arrived at her decision by application of the proper legal standards.Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983);Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981).
B. Disability Determination
The Commissioner must apply a five-step sequential analysis to determine whether a claimant is "disabled" or "not disabled." 20 C.F.R. § 404.1520. The five-step process is summarized as follows:
1. If the claimant currently is engaged in substantial gainful employment, he will be found "not disabled."
2. If the claimant does not suffer from a "severe impairment," he will be found "not disabled."
3. If the severe impairment meets or equals a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 and has lasted or is expected to last for a continuous period of at least twelve months, the claimant will be found "disabled."
4. If the claimant can still perform work he has done in the past ("past relevant work") despite the severe impairment, he will be found "not disabled."
5. Finally, the Commissioner will consider the claimant's ability to perform work (his "residual functional capacity"), along with his age, education and past work experience to determine whether or not he is capable of performing other work which exists in the national economy. If he is incapable, he will be found "disabled." If he is capable, he will be found "not disabled."20 C.F.R. § 404.1520(b)-(f). Entitlement to benefits is therefore dependent upon a finding that the claimant cannot work in some job that exists in the national economy.
The analysis involves a shifting burden of proof. Wallace v. Secretary of Health Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983). In the first four steps of the analysis, the burden is on the claimant to prove every element of her claim by a preponderance of the evidence. In the final step, however, the Commissioner bears the burden of proving that work is available for the petitioner: "Once a claimant has proved that he is unable to perform his former job, the burden shifts to the Commissioner to prove that there is some other kind of substantial gainful employment he is able to perform." Kangas, 823 F.2d at 777.
Here, ALJ Barrett concluded that Plaintiff was "not disabled" at any time after June 13, 1994 using the five-step process. At step one, he found plaintiff had not engaged in substantial gainful activity since June 14, 1994. (R. at 22.) At step two, he found that plaintiff suffers from a severe impairment due to his status post laminectomy, but at step three found that the severe impairment does not meet or equal a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.) At step four, he found plaintiff could not perform his past relevant work that required prolonged standing and heavy lifting. (Id.) Finally, at step five, he found plaintiff was capable of performing sedentary work and is "not disabled." (R. at 23.)
Plaintiff challenges the Commissioner's finding that he was "not disabled" after June 13, 1994. (Pl.'s Br. at 27-28.) He argues that the ALJ erred in the following four ways: (1) he did not follow this Court's directions on remand because he failed to consider Dr. Reiner's June 13, 1994 and June 15, 1994 reports and Dr. Rushton's reports, (2) he inappropriately rejected plaintiff's complaints of disabling pain, (3) he relied on flawed vocational expert testimony, and (4) he did not discuss whether plaintiff is capable of performing the specific functions required by sedentary work.
This Court finds that the ALJ followed the remand order and properly exercised his discretion when he discredited plaintiff's testimony and when he considered the testimony of the vocational expert. However, this Court must remand the case because substantial evidence does not support the finding that the plaintiff could perform all the functions of sedentary work beginning on June 13, 1994.
1. Court's instructions on remand
Plaintiff first argues that the ALJ did not comply with this Court's August 3, 1998 Order, which instructed the ALJ to consider certain medical reports and testimony. (Pl.'s Br. at 12-16.) It is true that when the district court remands a case with specific instructions for the ALJ, the ALJ must follow the instructions on remand. See Mefford v. Garnder, 383 F.2d 748, 756 (6th Cir. 1967) (stating that failure to follow instructions "was error"); Hodgson v. Celebrezze, 357 F.2d 750 (3d Cir. 1966) (reversing Secretary's denial of benefits after finding Secretary did not comply with instructions on remand).
Here, this Court instructed the ALJ to consider three specific issues on remand. First, the ALJ needed to consider Dr. Rushton's reports about plaintiff's second surgery as the reports offered new medical evidence that was not available at the underlying administrative proceeding. Second, the Court asked the ALJ to consider inconsistencies between Dr. Reiner's June 13, 1994 and June 15, 1994 reports. Third, the Court instructed the ALJ to reconsider plaintiff's subjective complaints of pain. (Id. at 26-27.)
This Court explained as follows:
If upon reconsideration, the ALJ reaches the same result, it would be helpful for the ALJ to explain why he chose to rely on the June 13, 1994 report of plaintiff's treating physician (indicating that the plaintiff had the capacity to do sedentary work), rather than the June 15, 1994 report of the same physician (indicating that the plaintiff did not have the capacity to do sedentary work). The inconsistencies between these two reports have not been addressed. Given that the record as a whole, including the ALJ's finding that plaintiff was disabled from February 9, 1993 to June 13, 1994 supports the findings of the June 15 report, rather than the June 13 report, it is unclear to this Court why the ALJ found it appropriate to rely on the June 13, 1994 report.
(Slip Opinion at 26 n. 8.)
ALJ Barrett considered all three matters on remand. First, he considered Dr. Rushton's report and its finding that plaintiff could sit for four hours, stand for four hours, and walk for two hours in an eight-hour day. (R. at 18.) He cited the report and stated the fact that plaintiff had surgery and had been discharged from Dr. Rushton's care in December 1995. (Id.)
Second, ALJ Barrett considered the two Reiner reports. The transcript of the administrative hearing makes clear that ALJ Barrett was trying to ensure his compliance with this Court's Opinion and Order as he stated:
Okay, What I don't seem to find and again you can take your time. In the decision of Judge [Simandle] there seems to be a reference to an analysis by Dr. Rushton on the 13th of June 1994 and another one two days later on the 15th of June 1994. Maybe I'm missing something, but you know, just — . . . And that's Dr. Reiner, R-E-I-N-E-R. Okay. Sorry about that. . . .
Oh, I think what the problem is is that Dr. Reiner, what the Judge I think is focusing on is that on the 13th he did the physical capacities evaluation and on the 15th he did the clinical assessment of pain . . .
(R. at 206-09.) ALJ Barrett then presented the facts of both Reiner reports to the Vocational Expert. (R. at 230-31.) Then, in his decision, ALJ Barrett specifically referenced the June 15, 1994 report, which was inconsistent with his ultimate finding, and discounted its weight by stating that it was written "during this period that involved a series of operations [when] the claimant's condition fluctuated." (R. at 19-20.)
Third, the ALJ considered plaintiff's subjective complaints of pain. He asked plaintiff about his pain at the administrative hearing, (R. at 222), and stated in his decision that he did not find plaintiff's testimony to be credible, (R. at 17). He explained that his impression that plaintiff's complaints were not credible was supported by Dr. Montiel's report since plaintiff had enlarged his complaints since seeing Dr. Montiel and by Dr. Anthony's report since the doctor found that plaintiff was "overreactive" in his pain responses. (R. at 19.)
Therefore, this Court finds that ALJ Barrett considered the evidence as instructed by this Court's Opinion and Order of August 3, 1998.
This finding does not indicate that this Court agrees with the ALJ's result or use of the Reiner and Rushton reports. See infra section II(B)(4).
2. Subjective complaints of pain
Plaintiff argues that the ALJ did not adequately consider his testimony of disabling symptoms. (Pl.'s Br. at 23.) A plaintiff's subjective testimony of symptoms may support a claim for disability benefits, but they "do not in themselves constitute disability." Green v. Schweiker, 749 F.2d 1066, 1070 (3d Cir. 1984); Bittel v. Richardson, 441 F.2d 1193, 1195 (3d Cir. 1971). The complaints must be accompanied by medical signs and laboratory findings which show that the claimant has a medical impairment that could reasonably be expected to produce the pain or other symptoms alleged. Id. It is within the ALJ's discretion "to evaluate the credibility of a claimant and to arrive at an independent judgment in light of medical findings and other evidence regarding the true extent of the pain alleged by the claimant. Brown v. Schweiker, 562 F. Supp. 284, 287 (E.D. Pa. 1983) (quoting Bolton v. Secretary of HHS, 504 F. Supp. 288 (E.D.N.Y. 1980)). Thus, on review, the Court must consider whether the ALJ's findings with regard to subjective complaints of pain are supported by substantial evidence. Dumas, 712 F.2d at 1552.
The ALJ is required to give serious consideration to the claimant's subjective complaints of pain, even if they are not fully confirmed by the objective medical evidence, Welch v. Heckler, 808 F.2d 264, 270 (3d Cir. 1986), but the ALJ is not bound to accept unquestioningly the credibility of such subjective evidence. Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Subjective symptoms of pain can be validated if observed and treated over time by a physician. Dorf v. Bowen, 794 F.2d 896 (3d Cir. 1986).
When a plaintiff testifies that he suffers from pain and that testimony is corroborated by medical reports, the ALJ must give the subjective allegations great weight. See 20 C.F.R. § 404.1529(a)-(c); Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986). However, the ALJ still has discretion "to evaluate the credibility of a claimant and to arrive at an independent judgment in light of medical rulings and other evidence regarding the true extent of the [ailment] alleged by the claimant."LaCorte v. Bowen, 678 F. Supp. 80, 83 (D.N.J. 1988) (quotingBrown v. Schweiker, 562 F. Supp. 284, 287 (E.D. Pa. 1983)).
Here, the ALJ found that plaintiff's "statements concerning his impairment and its impact on his ability to work [were] not entirely credible in light of the claimant's demeanor at hearing, the reports of the treating and examining practitioners, and the findings made on examination." (R. at 17.) Plaintiff argues that the ALJ should have found that his complaints were credible because the "medical record is uncontroverted in this matter, in that, the plaintiff suffers a severe vertebrogenic disorder." (Pl.'s Br. at 24.)
Social Security Ruling 96-7p clarifies the two-step process that an ALJ should follow when a plaintiff testifies about symptoms. First, the ALJ must determine whether there is an "underlying medically determinable physical or mental impairment . . . that could reasonably be expected to product the individual's symptoms." S.S.R. 96-7p. If there is, then the ALJ must "evaluate the intensity, persistence, and limiting effects of the individual's symptoms to determine the extent to which the symptoms limit the individual's activity to do basic work activities." Id. If the plaintiff's testimony about the intensity and limitations of his symptoms is not substantiated by objective medical evidence, the ALJ must make a finding regarding the credibility of the plaintiff's testimony. Id. The ALJ may determine such credibility by considering factors, such as the plaintiff's daily activities, the conduct that precipitates and aggravates the symptoms, and the plaintiff's prescribed medical treatment. Id.
Here, ALJ Barrett considered plaintiff's testimony about his pain and about his ability to speak English and found that plaintiff's testimony was not credible on both points. His decision that plaintiff's testimony of pain was not credible was backed by substantial evidence in the record. As he explained, it was "of particular note" that Dr. Anthony noticed plaintiff overreacted during his examination and complained of pain in areas of his back that were not affected by his condition. (R. at 19.) The ALJ's decision was also supported by plaintiff's inconsistency in his complaints. As he noted, plaintiff had complained that the pain was only exacerbated by standing in February 1997, a date much closer to his August 15, 1995 surgery date than the hearing date. (R. at 18.) Yet, at the January 26, 1999 date, plaintiff complained that his pain was exacerbated by standing and by sitting. (Id.) When faced with a medical record that showed plaintiff was constantly improving after his second surgery, ALJ Barrett was justified in discounting plaintiff's complaints that his pain was worsening.
ALJ Barrett's conclusions about plaintiff's proficiency in English were also supported by substantial evidence. He explained that while a Spanish interpreter was present at the administrative hearing, he was "not convinced and was, in fact, dubious about his need for a Spanish interpreter." (R. at 21.) On several occasions at the hearing, plaintiff responded to questions before the question was translated into Spanish. (Id.) The ALJ's impression that plaintiff could speak English was supported by the absence in the record of any mention of communication or language barriers. (Id.) For example, Dr. Montiel did not mention any problems communicating with plaintiff even though he performed an extensive consultative examination on him. (R. at 21.)
As a result, this Court finds that ALJ Barrett was justified in discounting plaintiff's testimony about his pain and his trouble speaking English.
3. Vocational expert testimony
Plaintiff also argues that the ALJ relied upon flawed vocational expert testimony when he found that there are jobs in the national economy that plaintiff can perform given his impairments. A vocational expert may be used when the issue is whether the plaintiff's work skills can be used in other occupations. 20 C.F.R. § 404.1566(3)(1995); Santise v. Schweiker, 676 F.2d 925 (3d Cir. 1982).
The vocational expert's testimony may only be considered if the questions accurately portray the claimant's individual physical and mental limitations. Burns v. Barnhart, ___ F.3d ___, 2002 WL 31716291 (3d Cir. Dec. 4, 2002); Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987). If there is substantial evidence in the record that supports the hypothetical portrayal of the claimant's condition, then the ALJ may rely on the testimony about a person in that condition. Schonewolf v. Callahan, 972 F. Supp. 277, 289 (D.N.J. 1997).
Plaintiff does not question the validity of the hypothetical questions given to the vocational expert, but argues that the answers to the questions were "entirely worthless" because the vocational expert did not state how many jobs were available given plaintiff's limitations. (Pl.'s Br. at 26-27.) The problem with plaintiff's argument is that the ALJ did not need to rely on the vocational expert's testimony because the Medical-Vocational Guidelines compelled a finding of "not disabled."
An ALJ is not required to use a vocational expert to determine whether jobs exist in the national economy. See 20 C.F.R. § 404.1566(e) (stating "[w]e will decide whether to use a vocational expert or other specialist"). Instead, the ALJ is only required to rely on "competent evidence", which may not be the opinion of a vocational expert, to determine whether the jobs are available. See Gilliand v. Heckler, 786 F.2d 178, 183 (3d Cir. 1986). 20 C.F.R. § 404.1566(d) explains that the ALJ may take administrative notice of whether jobs are available, stating that:
When we determine that unskilled, sedentary, light, and medium jobs exist in the national economy (in significant numbers either in the region where you live or in several regions of the country), we will take administrative notice of reliable job information available from various governmental and other publications. For example, we will take notice of —
(1) Dictionary of Occupational Titles, published by the Department of Labor;
(2) County Business Patters, published by the Bureau of the Census;
(3) Census Reports, also published by the Bureau of the Census;
(4) Occupational Analyses, prepared for the Social Security Administration by various State employment agencies; and
(5) Occupational Outlook Handbook, published by the Bureau of Labor Statistics.
In addition, the ALJ may rely on Medical-Vocational Guidelines to determine whether jobs exist in the national economy instead of using a vocational expert if the plaintiff does not have significant non-exertional impairments. Santise v. Schweiker, 676 F.2d 925 (3d Cir. 1982). In fact, when the claimant has a purely exertional impairment and the Medical-Vocational Guidelines call for a finding of disability, the ALJ is bound by the finding even if the vocational expert testifies otherwise. Cooper v. Sullivan, 880 F.2d 1152, 1156-57 (9th Cir. 1989); Green v. Schweiker, 749 F.2d 1066, 1072 (3d Cir. 1984).
Non-exertional impairments involve limitations such as postural, manipulative, or environmental impairments that do not affect a claimant's physical strength but may nevertheless prevent him from engaging in substantial gainful employment. 20 C.F.R. § 404.1545(d).
Exertional impairments involve limitations on a claimant's ability to meet the seven possible strength requirements of a job: sitting, standing, walking, lifting, carrying, pushing, and pulling. 20 C.F.R. § 404.1545(b); S.S.R. 96-4p.
Here, ALJ found that plaintiff did not have non-exertional limitations, applied the Medical-Vocational Guidelines, accounting for plaintiff's age, past relevant work, limited education, and unskilled work experience, and found that the table directed a conclusion of "not disabled." (R. at 22-23.) Thus, the ALJ did not need the vocational expert to testify to exact numbers of jobs available in the national economy because he could take administrative notice that such jobs exist. As a result, this Court also finds, like the ALJ, that "[i]t is not necessary to consider in further detail the testimony of the vocational expert." (R. at 21.)
This finding was supported by substantial evidence as Drs. Binski and Montiel found that plaintiff had no postural, manipulative, or environmental limitations. (R. at 135-38, 181-183.)
4. Residual Functional Capacity
Plaintiff argues that the ALJ improperly determined that he has a residual functional capacity ("RFC") for sedentary work. This Court agrees. The problem with the ALJ's analysis of plaintiff's residual functional capacity is that his determination that plaintiff could perform all the functions of sedentary work for the entire period after June 13, 1994 is not backed by substantial evidence. This Court remanded the case to the ALJ to determine whether plaintiff was disabled at any time after June 13, 1994. Instead, the ALJ seemed to consider whether plaintiff was disabled at the present time, based on January 26, 1999 testimony and on 1997 and 1998 medical records. The ALJ dismissed earlier medical evidence, stating that "[i]t was during this period that involved a series of operations that the claimant's condition fluctuated." (R. at 20.)
Plaintiff argues in depth that the ALJ's decision was flawed because it does not contain a function-by-function assessment of plaintiff's limitations. (Pl.'s Br. at 17.) Social Security Ruling 96-8p states, in part, that "the RFC assessment is a function-by-function assessment based upon all of the relevant evidence of an individual's ability to do work-related activities." S.S.R. 96-8p at 3. Plaintiff is thus correct that:
in order for an individual to do a full range of work at a given exertional level, such as sedentary, the individual must be able to perform substantially all of the exertional and nonexertional functions required in work at that level. Therefore it is necessary to assess the individual's capacity to perform each of these functions in order to decide which exertional level is appropriate and whether the individual is capable of doing the full range of work contemplated by the exertional level.Id. However, plaintiff is not correct when he argues that the ALJ must explicitly detail the function-by-function analysis in his decision. Instead, Social Security Ruling 96-8p only requires a "narrative discussion" that describes how the evidence supports his conclusion and discusses "the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule)." S.S.R. 96-8p at 7. The ALJ's decision is sufficiently detailed if he cites to medical and nonmedical evidence, resolves any inconsistencies in the evidence, and logically explains the effects of the claimant's symptoms on the individual's ability to work. Id.
In assessing the correctness of an ALJ's finding regarding the claimant's date of recovery, "the issue is whether there is substantial evidence in the record to support the date chosen by the ALJ, not whether a [later] date could have been supported."Henderson, 179 F.3d at 512 (quoting Stein v. Sullivan, 892 F.2d 43, 46 (7th Cir. 1990)). Here, the date chosen by the ALJ, namely June 13, 1994, is not supported by substantial evidence.
The ALJ was presented with a record that seems to indicate that plaintiff's health gradually improved since his 1993 injury. It is very likely that substantial evidence supports his conclusion that plaintiff presently is not disabled because he can perform sedentary work. Sedentary work is defined as:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.20 C.F.R. § 404.1567. Social Security Ruling 83-10 clarified the "occasional walking and standing" component of sedentary work by stating that "sitting should generally total approximately six hours of an eight-hour work day."
Social Security Rule 96-9p explains that "there are approximately 200 separate unskilled sedentary occupations, each representing numerous jobs, in the national economy." As a result, a restriction to sedentary work does not "negate work capability for substantial gainful activity in all individuals." S.S.R. 96-9p at 3. Table Number 1 in 20 C.F.R. Part 404, Subpart P, Appendix 2, is the "Residual Functional Capacity: Maximum Sustained Work Capability Limited to Sedentary Work as a Result of Severe Medically Determinable Impairment(s)" which directs the ALJ to a finding of disabled or not disabled. When the ALJ determines that the plaintiff can perform sedentary work, he must also assess the plaintiff's age, education, and previous work experience to determine his residual functional capacity.
Here, the ALJ explained the evidence that supported his decision that plaintiff could perform sedentary work. He cited to medical reports that stated that plaintiff could sit for six hours a day, such as Dr. Anthony's October 27, 1998 report, (R. at 200), the DDS physician's February 26, 1997 report, (R. at 134), Dr. Binksi's May 16, 1997 report, (R. at 140.) He also cites to Dr. Monteil's January 28, 1997 report for its finding that plaintiff has no limitations. (R. at 181-83.) The ALJ also included medical evidence that plaintiff could lift more than ten pounds, referencing Dr. Rushton's December 22, 1995 report, (R. at 18), and Dr. Anthony's October 27, 1998 report, (R. at 18-19). He also considered plaintiff's age, education, and previous work experience, specifically stating that plaintiff "is 29 years old, a `younger individual age 18-44,'" (R. at 22), that he has a "limited education and alleges to have a poor facility with the English language," (R. at 16, 22,) and has "basically unskilled work experience," (R. at 23). Applying these factors to the Medical-Vocational Guidelines, ALJ Barrett found that plaintiff was "not disabled" and "retains the residual functional capacity to perform the exertional demands of sedentary work, or work with is generally performed while sitting and never requires lifting in excess of ten pounds." (R. at 20.)
20 C.F.R. Pt. 404, Subpt. P, App.2(h) states that" the term younger individual is use to denote an individual age 18 through 49." While the ALJ defined the age grouping as ages 18 through 44, he still properly characterized plaintiff as a "younger individual."
20 C.F.R. Pt. 404, Subpt. P, App.2(i) states that there are "sufficient numbers of jobs to indicate substantial vocational scope for those individuals aged 18-44 even if they are illiterate or unable to communicate in English."
20 C.F.R. Pt. 404, Subpt. P, App.2(i) states that" the lack of relevant work experience would have little significance since the bulk of unskilled jobs require no qualifying work experience."
However, even if substantial evidence could support the ALJ's decision that plaintiff was not presently disabled at the 1999 hearing, substantial evidence does not support his decision that plaintiff was not disabled as of June 14, 1994. ALJ Barrett never considered the period of time immediately following June 13, 1994 to determine if plaintiff could have performed all the functions of sedentary work then. This time period is especially crucial to plaintiff's medical history, since his pain and impairment continued, leading to surgery with Dr. Rushton in August, 1995, leading eventually to uncomplicated recovery in February, 1996, as described above. The record does not support a finding that plaintiff's condition in 1995 was better than his condition pre-June, 1994.
This Court cannot remand a case if substantial evidence exists to support the Secretary's decision, even if substantial evidence also exists to support a different decision. Burns v. Barnhart, ___ F.3d ___, 2002 WL 31716291 (3d Cir. Dec. 4, 2002). Here, however, the evidence from 1994 through 1996 does not support a conclusion that plaintiff could then sit for the six hours required by sedentary work. On June 15, 1994, Dr. Reiner thought plaintiff could only sit for four hours. (R. at 11.) On February 9, 1996, Dr. Rushton thought plaintiff could sit for four hours. (Slip Op. at 13.) On November 11, 1996, Dr. Blank thought plaintiff could sit for one hour. (R. at 122.) The Third Circuit has stated that "[w]hile five hours and twenty minutes is fairly close to six hours, four hours is not." Mason v. Shalala, 994 F.3d 1058, 1066 (3d Cir. 1993). The record also shows that it was during this period that plaintiff had a second back surgery. This Court finds it hard to believe that plaintiff could have performed all the functions of sedentary work during the period immediately preceding and following his August 15, 1995 back surgery.
Therefore, while there is evidence that shows that plaintiff's recovery from his second surgery was uncomplicated and that he likely did reach a point where he could handle sedentary work, substantial evidence does not support a conclusion that he could handle sedentary work on June 13, 1994, the recovery date chosen by the ALJ. Therefore, although this Court hesitates to remand the present case a second time, as this case has been embroiled in the administrative process since November 1993, it must. This Court does not have authority to make its own independent findings of fact. Thomas v. Massanari, 28 Fed. Appx. 146, 147 (3d Cir. 2002); see also Henderson v. Apfel, 179 F.3d 507, 512 (7th Cir. 1999) (stating that district court cannot "decide facts anew"). When substantial evidence does not support the recovery date chosen by the Commissioner, the court cannot choose a new date, but must remand the case with instructions for the Commissioner to choose a new date. Stefero v. Gardner, 285 F. Supp. 898, 900 (E.D. Pa. 1968).
As a result, this Court will remand this case to the Secretary for the sole purpose of determining the date on which plaintiff's disability ended.
III. CONCLUSION
This Court finds that the ALJ's determination that the plaintiff was able to perform the requirements of sedentary work, and therefore was "not disabled" under the Act, for the entire period dating from June 13, 1994 to the present is not supported by substantial evidence. Accordingly, the Commissioner's decision denying the Plaintiff's Disability Insurance Benefits and Supplemental Security Income Benefits is vacated and this case is remanded for further consideration consistent with this opinion. The accompanying Order is entered.
ORDER
This matter having come before the Court upon plaintiff Pedro Hernandez's application to review the final decision of the Commissioner of the Social Security Administration denying his application for Disability Insurance Benefits under Title II of the Social Security Act and for Supplemental Security Income Benefits under Title XVI of the Act; this Court having considered the record and the submissions of the parties; for the reasons stated in the Opinion of today's date; and for good cause shown;
IT IS on this day of December, 2002, hereby
ORDERED that the final decision of the Commissioner be, and hereby is, VACATED and REMANDED for further proceedings, specifically to make a determination regarding the date after June 13, 1994 when plaintiff's disability ceased, as determined by the date that the plaintiff was able to perform the functions of sedentary work, consistent with the directives set forth in the accompanying Opinion.