Opinion
NO. 1:00-CV-605
October 4, 2002
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 42 U.S.C. § 405(g), plaintiff seeks judicial review of the Commissioner of Social Security Administration's ("Commissioner") decision denying benefits. Plaintiff claims disability based on leg and lower back pain resulting from an employment-related injury suffered on December 31, 1993. The Commissioner found that plaintiff was not disabled and denied his application for benefits. Plaintiff contests the Commissioner's decision by asserting that the Administrative Law Judge ("ALJ") erred in finding that he was not disabled.
This case is referred to the undersigned United States Magistrate Judge for review, hearing if necessary, and submission of a report with recommended findings of fact and conclusions of law. See 28 U.S.C. § 636(b)(1)(B) and Local Rules for the Assignment of Duties to United States Magistrate Judges. Jurisdiction is invoked pursuant to 42 U.S.C. § 405(g).
I. JUDICIAL REVIEW
The court's role is to determine whether the Commissioner applied the proper legal standards and whether the decision is supported by substantial evidence. See Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).
Substantial evidence is more than a scintilla, but less than a preponderance, Anthony v. Sullivan, 954 F.2d at 292, it requires evidence relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1427 (1971); Marcello v. Bowen, 803 F.2d 851, 853 (5th Cir. 1986) (citing Jones v. Heckler, 702 F.2d 616, 620 (5th Cir. 1983). The evidence must be "enough to justify, if the trial were submitted to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." National Labor Relations Bd. v. Columbian Enameling Stamping Co., 306 U.S. 262, 299-300, 59 S.Ct. 206, 217 (1939), cited in Harvey L. McCormick, Social Security Claims and Procedures § 672, at 193 n. 1 (4th ed. 1991).
To determine whether substantial evidence exists to support the ALJ's findings, the entire record must be scrutinized carefully. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. denied 514 U.S. 1120, 115 S.Ct. 1984 (1995); Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983). The court in reviewing the record should not, however, proceed to reweigh the evidence or review the ALJ's decision de novo. Haywood v. Sullivan, 888 F.2d 1462, 1466 (5th Cir. 1989); Neal v. Brown, 829 F.2d 528, 530 (5th Cir. 1987). Rather, it is for the Commissioner to weigh the evidence and to resolve any conflicts. See Anthony v. Sullivan, 954 F.2d at 295; Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir 1990). If supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co., 305 U.S. at 230, 59 S.Ct. at 217); see also, 42 U.S.C. § 405(g).
II. ELIGIBILITY FOR DISABILITY INSURANCE BENEFITS
Social security claimants bear a formidable burden of proof, "so stringent that it has been described as bordering on the unrealistic."Oldham v. Schweiker, 660 F.2d 1078, 1083 (5th Cir. 1981). Proof of the existence of a serious disease or impairment alone does not establish a disability within the meaning of the Social Security Act. Thus, a showing of general disability is insufficient; in addition a claimant must prove inability to engage in any substantial gainful employment. See Herridge v. Richardson, 464 F.2d 198 (5th Cir. 1972); Ratliff v. Richardson, 445 F.2d 440 (5th Cir. 1971).
To qualify for disability insurance benefits, the plaintiff must meet the requirements set forth in the Social Security Act ("Act"). See 42 U.S.C. § 423(a). That is, the plaintiff must be under age 65, file an application for such benefits, and be under a disability as defined by the Act. See 42 U.S.C. § 416(I), 423(a). Those claiming disability insurance benefits under the Act have the burden of showing the existence of a disability. Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir. 1979), cert. denied, 444 U.S. 952, 100 S.Ct. 428 (1979); Rhynes v. Califano, 586 F.2d 388 (5th Cir. 1978); Kirkland v. Weinberger, 480 F.2d 46 (5th Cir.), cert. denied, 414 U.S. 913, 94 S.Ct. 255 (1973).
The Act defines a disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). A physical or mental impairment is one which "results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). A claimant is disabled "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).
Establishment of a disability is thus a dual process. First, the claimant must prove that he suffers from a medically determinable impairment. 42 U.S.C. § 416(I)(1), 423(d)(1)(A). Second, the claimant must prove that his impairment or combination of impairments renders him unable to engage either in the work he previously performed or other substantial gainful employment that exists in the national economy. 42 U.S.C. § 416(I)(1), 423(d)(2).
III. FACTUAL BACKGROUND
Plaintiff was originally injured on June 24, 1986, when he was working as a truck driver and was struck from behind by a car. Persistent pain resulting from this accident caused him to undergo a left L5-S1 laminotomy with foraminotomy and disk removal on April 1, 1988. On July 10, 1988, plaintiff was hospitalized again to undergo a left C6-7 and right C5-6 laminotomy with foraminotomy and nerve root decompression. Plaintiff returned to work, where he injured his back on December 31, 1993, while picking up heavy equipment. As a result, on October 14, 1994, he underwent a third surgery: L4-L5 lumbar laminectomy with exploration, medial facetectomy with foraminotomy and excision of massive free disk fragments at L4-L5. Plaintiff has not worked since the 1993 work-related injury, claiming that he experiences continual pain and numbness in his legs.
IV. PROCEDURAL BACKGROUND
This is plaintiff's second application for disability insurance benefits ("DIB"). His first application on December 7, 1995 (Tr. 91) resulted in a denial on March 22, 1996 (Tr. 64). Plaintiff reapplied on August 27, 1996 (Tr. 96), and his application was denied on December 5, 1996 (Tr. 69). Plaintiff timely requested reconsideration (Tr. 74) and, when reconsideration still resulted in denial of benefits, he timely requested hearing before an administrative law judge ("ALJ") (Tr. 80).
Because plaintiff re-applied for DIB within a year of the first denial, the first application was automatically reopened, making the application date for this case December 7, 1995. Tr. 29.
The regulations provide that a determination may be reopened for any reason within 12 months of the date of the notice of initial determination. 20 C.F.R. § 404.988(a).
An evidentiary hearing before an administrative law judge (ALJ) occurred on April 14, 1998. ALJ Ann Azdell issued her decision denying benefits on April 21, 1998. Plaintiff timely requested review by Appeals Council (Tr. 5), which request was denied on January 15, 2000 (Tr. 6). Plaintiff was granted extension of time to file civil action in federal court (Tr. 3), and he filed the instant appeal on September 5, 2000.
V. EVIDENCE IN ADMINISTRATIVE RECORD
The administrative record contains relevant evidence from numerous sources. The medical evidence regarding plaintiff's impairments comes from plaintiff's treating physician, a work hardening center, several consultative examining and reviewing physicians, and plaintiff himself. That evidence is summarized below. Also included in this section is a summary of vocational testimony elicited from an expert witness.
Treating Physician's Opinions
Dr. Thomas Mims, M.D., is a neurosurgeon who treated plaintiff from 1988 through 1997. Dr. Mims performed three surgeries on plaintiff: left L5-S1 laminotomy with foraminotomy and disk removal (April, 1988); left C6-7 and right C5-6 laminotomy with foraminotomy and nerve root decompression (July, 1988); and L4-L5 lumbar laminectomy with exploration, medial facetectomy with foraminotomy and excision of massive free disk fragments at L4-L5 (October, 1994).
Following the 1994 surgery, Dr. Mims noted that plaintiff experienced no leg pain and only slight residual back pain. Tr. 211. Dr. Mims noted in February, 1995, that plaintiff was walking frequently and had even started jogging. Tr. 200.
However, as Dr. Mims continued to monitor plaintiff's recuperation, his assessments of plaintiff's capacity for work became increasingly more limited due to plaintiff's continuing complaints of chronic pain. In April, 1995, Dr. Mims released plaintiff to lift and carry up to 40 pounds; walk, stand, and sit up to 6 hours each; climb; but stated that plaintiff could not bend, push, pull, or twist. Tr. 196. In July, 1995, Dr. Mims further limited plaintiff to no climbing, and stooping or bending for no more than 1 hour per day. Tr. 190. In May, 1996, Dr. Mims further limited plaintiff to lifting and carrying under 20 pounds, walking and standing for 2 hours each, sitting for 4 hours in an 8-hour day, and prohibited plaintiff from bending, stooping, kneeling, pushing, or pulling. Tr. 169.
In October, 1996, Dr. Mims noted that plaintiff complained of numbness in both legs, but that there was no different or increasingly severe pain. Tr. 165. One year later, in October, 1997, plaintiff presented the same complaints. Following a lumbar spine MRI scan in December, 1997, Dr. Mims concluded that the MRI shows only post-operative changes and that pain as described by plaintiff "does not really fit the exact pattern of any particular type of nerve problem that [he is] aware of." Tr. 292. Despite that conclusion, in April, 1998, Dr. Mims further limited plaintiff's ability to perform work, concluding that plaintiff is confined to the equivalent of sedentary activity. Tr. 294-5. Dr. Mims prescribed Oruvail, (an anti-inflammatory medication) but otherwise concluded that there is little else he can do.
Dr. Mims limited plaintiff to lifting no more than 10 pounds occasionally and 5 pounds frequently, standing/walking no more than 2 hours and sitting no more than 4 hours in an 8-hour day. He also imposed all postural limitations and the following environmental restrictions: heights, moving machinery, and vibration. Tr. 294-5.
B. Other Medical Evidence 1. Center for Industrial Rehabilitation
On December 1, 1995, plaintiff was evaluated at Center for Industrial Rehabilitation (CIR), a work hardening facility operated by Beverly Enterprises. CIR reported that plaintiff can lift 86 pounds occasionally, and can exert 50 to 100 pounds of force occasionally. The report noted questionable results and inconsistencies in "trunk range of motion testing . . . [and] reports of sensory disturbances." Tr. 175-76. The report further noted that plaintiff "failed to pass established criteria for lumbar flexion and extension [and] therefore impairment [of 14%] was awarded for loss of lateral flexion range of motion only." Tr. 173, 182.
The former Center for Industrial Rehabilitation is now Matrix Rehabilitation, located in Houston, Texas, with corporate offices in Plano, Texas.
2. Ronald Kerr, M.D.
On September 11, 1996, consultative examining physician Ronald Kerr, M.D., concluded that plaintiff's impairment is 12%. Orthopedic examination revealed that plaintiff can walk on his heels and toes, sensation was intact except for slight decrease on bottom of left foot, and seated straight leg raise was negative. He also noted that range of motion test was invalid in flexion and extension. Tr. 159.
3. D. Blacklock, M.D., A. Minyard, M.D. and M.C. Schlecte, M.D.
Consulting and reviewing physicians D. Blacklock, M.D., A. Minyard, M.D., and M.C. Schlecte, M.D., completed functional capacity assessments on October 25, 1995, March 21, 1996, and March 11, 1997, respectively. These physicians conducted medical records reviews, but none examined plaintiff. Drs. Blacklock and Minyard concluded that plaintiff can occasionally lift 50 pounds and frequently lift 25 pounds, stand and walk for 6 hours, sit for 6 hours, and has unlimited ability to push or pull. Dr. Blacklock concluded that plaintiff has no postural limitations; Dr. Minyard limited plaintiff to occasional stooping or crouching. Tr. 146, 152. Dr. Schlecte concluded that plaintiff can lift 20 pounds occasionally and 10 pounds frequently, stand and walk for 6 hours, sit for 6 hours, and has unlimited ability to push or pull. Dr. Schlecte also found that plaintiff should never climb a ladder, rope or scaffold, occasionally can climb stairs and stoop, and can frequently kneel, crouch and crawl. Tr. 279-80.
Plaintiff's Testimony and Credibility of Allegations of Pain
Plaintiff testified to constant back pain and numbness in his legs. He averred that he cares for his daily needs but has trouble putting on socks and shoes. Tr. 34. He can put clothes in the washing machine but cannot lift them out when they are wet and heavy, and he can work in flower beds but has difficulty arising from a kneeling position. Tr. 35. He can walk but has to rest every 100 yards, can ride an exercise bicycle, and can drive for only 30 to 40 minutes before his legs become numb. Tr. 41. He visits neighbors, attends church, shops for groceries. He can carry small packages but cannot lift a gallon of milk from the counter. Tr. 40. Plaintiff also testified that his pain is relieved when he elevates his feet and when he does back exercises. Tr. 42-3. He takes Oruvail, an anti-inflammatory medication, and Tylenol and Ibuprofen for pain. Tr. 42-3.
Vocational Expert's Testimony
Margaret Couch, a vocational rehabilitation counselor, testified as a vocational expert ("VE"). Typically, vocational experts testify when disability applicants have nonexertional impairments that preclude use of administrative notice to determine disability. They respond to hypothetical questions that include applicants' impairments and other relevant vocational factors. They then express opinions as to whether work exists in the national economy that the applicants can perform.
Vocational Experts are utilized by the ALJ to "assess whether jobs exist for a person with the claimant's precise abilities." Gilliam v. Califano, 620 F.2d 691 (8th Cir. 1980). The VE's testimony must: (1) assess the effect of any limitation on the range of work at issue; (2) advise whether the impaired person's residual functional capacity permits him or her to perform substantial numbers of occupations within the range of work at issue; and, (3) identify jobs if they exist and provide a statement of the incidence of such jobs in the region in which the person lives. See Ellison v. Sullivan, 921 F.2d 816 (8th Cir. 1990).
In this case, however, VE Couch's testimony served different purposes. She was asked to express opinions on a variety of topics. Her opinions relevant to this appeal were (a) plaintiff's past relevant work as a truck driver is semi-skilled, and its exertional level is within the category of medium work (Tr. 51); (b) plaintiff's past relevant work in the tool room is skilled, and also involves an exertional level in the medium work category (Tr. 52); and (c) plaintiff's skills as a commercial asphalt truck driver and tool room worker are transferable to jobs with exertional levels in the light work category (Tr. 52, 54). Specifically, VE Couch identified the following jobs in the light work exertional range to which plaintiff's skills would transfer: lot attendant, car rental driver, pharmacy helper, order filler, lab clerk and supply clerk. Tr. 56-7.
Semi-skilled work requires some skills and "may require alertness and close attention to watching machine processes; or inspecting, testing or otherwise looking for irregularities; or tending or guarding equipment, property, materials, or persons against loss, damage or injury, or other types of activities which are . . . more complex than unskilled work. A job may be classified as semi-skilled when coordination and dexterity are necessary, as when hands or feet must be moved quickly to do repetitive tasks." 20 C.F.R. § 404.1568(b).
"Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." The Commissioner presumes that a person capable of medium work is also capable of sedentary and light work. 20 C.F.R. § 404.1568(c).
"Skilled work requires qualifications in which a person uses judgment to determine the machine and manual operations to be performed in order to obtain the proper form, quality, or quantity of material to be produced. Skilled work may require laying out work, estimating quality, determining the suitability and needed quantities of materials, making precise measurements, reading blueprints or other specifications, or making necessary computations or mechanical adjustments to control or regulate the work. Other skilled jobs may require dealing with people, facts, or figures or abstract ideas at a high level of complexity." 20 C.F.R. § 404.1568(c).
Transferable skills "can be used . . . to meet the requirements of skilled or semi-skilled work activities of other jobs or kinds of work." Transferability of skills "depends largely on the similarity of ocupationally significant work activities among different jobs." 20 C.F.R. § 404.1568(d).
To a second hypothetical in which she was asked to assume that plaintiff's residual functional capacity is limited to sedentary work, VE Couch could identify no skills in plaintiff's past relevant work that would transfer to sedentary work. Tr. 56.
VI. SEQUENTIAL EVALUATION PROCESS
The law requires, in every case, that the Commissioner determine whether the claimant has a disability. See Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952 (1983). The Commissioner utilizes a five-step sequential evaluation analysis to aid in determining when claimants are disabled. See 20 C.F.R. § 404.1520. This procedure has judicial approval as a fair and just way for determining disability applications in conformity with the Social Security Act. See Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 2297 (1987) (citing Heckler v. Campbell, 461 U.S. at 461, 103 S.Ct. at 1954) (The use of the sequential evaluation process "contribute[s] to the uniformity and efficiency of disability determinations").
The five steps are as follows:
The Commissioner ascertains whether the applicant is currently engaging in substantial gainful activity . If so, a finding of non-disability is entered and the inquiry ends.
The Commissioner determines if the applicant's impairment or combination of impairments is severe , that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities. If not, the inquiry ends and a finding of non-disability is entered.
The Commissioner determines whether the severe impairment equals or exceeds those in the Listing of Impairments, 20 C.F.R. Subpt. P, Appendix 1 . If so, disability is presumed and benefits are awarded.
The Commissioner determines whether the impairment prevents the individual from engaging in his regular previous employment . If so, a prima facie case of disability is established and the burden of going forward (to the fifth step) shifts to the Commissioner. See Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987).
The Commissioner determines whether other work exists in the national economy which the applicant can perform . If the Commissioner establishes that an applicant can perform alternative employment, the burden shifts back to the applicant to show he cannot perform the alternative labor. See Id.; Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986); 20 C.F.R. § 404.1520(a)-(f).
VII. COMMISSIONER'S BURDEN AT STEP FIVE
At the fifth step, the Commissioner's burden is to establish that an applicant can perform available, alternative employment. To meet this obligation, the Commissioner engages in a two-pronged analysis:
First, the Commissioner determines an applicant's residual functional capacity ("RFC"). That is, the Commissioner decides whether the applicant, notwithstanding severe impairment, has the physical and mental ability to perform activities generally required in various categories of work.
Next, the Commissioner consults the "Medical Vocational Guidelines," commonly called "the grids." The grids are a matrix of general findings, established by rule, as to whether work exists in the national economy that a person can perform, taking into account age, education, work experience, and residual functional capacity. When individual factors for a particular applicant are compared to the general findings in the grids, the Commissioner determines whether alternative work that the particular applicant can perform exists in the national economy.
Residual functional capacity is defined as "what you can still do despite your limitations." 20 C.F.R. § 404.1545(a). It has three components: physical abilities, mental abilities, and other impairments.See 20 C.F.R. § 404.1545(a).
The Medical-Vocational Guidelines consist of three tables (for sedentary, light, and medium work) which may be consulted following a determination of claimant's residual functional capacity. The tables direct conclusions of disability or non-disability based upon claimant's age, education, and previous work experience. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, §§ 201-03 (2000).
When a claimant suffers only from exertional impairments and an ALJ's findings of residual functional capacity, age, education, and previous work experience coincide with the grids, the Commissioner may rely exclusively on the grids to determine whether work exists in the national economy which claimant can perform. 20 C.F.R. § 404.1569a(b). If the grids produce a finding that substantial jobs are not available, the application for benefits is approved. Conversely, if the grids produce a finding that such jobs are available, the application is denied. Use of the grids does not violate the Social Security Act and is judicially approved as a fair and just method of determining disability.See Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952 (1983) (concluding that the use of occupational grids is not violative of the Social Security Act and stating that "[t]his type of general factual issue may be resolved as fairly through rulemaking as by introducing the testimony of vocational experts at each disability hearing").
Exertional impairments "affect only . . . ability to meet strength demands of jobs (sitting, standing, walking, lifting, carrying, pushing, and pulling)." 20 C.F.R. § 404.1569a(b).
While application of the grids serves desirable purposes of promoting uniformity and efficiency, use of the grids is not appropriate in all circumstances. The grids only establish whether there are available unskilled jobs in the national economy for claimants with exertional impairments and who fit the criteria of the rule at various functional levels. They do not purport to establish jobs that exist in the national economy at various functional levels when a claimant has a solely nonexertional impairment (or does not meet criteria of the rule for other reasons). 20 C.F.R. § 404.1569a(c)(2). See also Sykes v. Apfel, 228 F.3d 259, 269 (3d Cir. 2000). Consequently, when an ALJ determines that a claimant suffers from a nonexertional impairment that prevents performance of the claimant's past work, the Commissioner generally must produce "expert vocational testimony or other similar evidence" to establish that jobs exist in the national economy that the applicant can perform. See Lawler v. Heckler, 761 F.2d 195, 198 (5th Cir. 1985); Dellolio v. Heckler, 705 F.2d 123, 127-28 (5th Cir. 1983).
Nonexertional impairments are those which do "not result in [strength] limitations, e.g. certain mental, sensory, or skin impairments. In addition, some impairments may result solely in postural and manipulative limitations or environmental limitations." 20 C.F.R. Pt. 404, Subpt. P, 200(e) (2000).
There are two exceptions to these general precepts. First, even when a claimant has a nonexertional impairment, the Commissioner may nevertheless rely exclusively on the grids to determine whether work exists in the national economy which claimant can perform if (a) the ALJ determines that the nonexertional impairment does not significantly affect the claimant's RFC, and (b) substantial evidence supports that determination. Newton v. Apfel, 209 F.3d 448, 458 (5th Cir. 2000), citingFraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). Second, even when a claimant's RFC is so significantly affected by a nonexertional impairment as to preclude resort to the grids for a disability determination, the grids may nevertheless be consulted as a "framework for consideration of how much the individual's work capability is further diminished in terms of any types of jobs that would be contraindicated by the nonexertional limitations." 20 C.F.R. pt. 404, subpt. P, app.2, § 200.00(§ e)(2) (2001).
VIII. ADMINISTRATIVE DECISION
Following the sequential evaluation process described in the preceding section, ALJ Azdell made the following findings:
Step 1: Claimant has not engaged in substantial gainful activity since his alleged date of disability. Tr. 20, Finding 2.
Step 2: The medical evidence establishes that the claimant has the following medically determinable impairments: status post remote cervical spine surgery and lumbar spine surgery and status post recent repeat lumbar lumbar spine surgery secondary to degenerative disc disease and herniated cervical and lumbar discs. Tr. 20, Finding 3.
Step 3: [Claimant] does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4. Tr. 20, Finding 3.
Step 4: The claimant is unable to perform his past relevant work as a truck driver and a tool room worker. Tr. 20, Finding 6.
Step 5: (a) Claimant has residual functional capacity for a full range of light work: to lift, carry, push and pull 20 pounds occasionally and 10 pounds frequently; to walk and stand for six hours in an eight-hour day and sit for up to six hours. There are no non-exertional limitations. Tr. 20, Findings 5, 7.
(b) Section 404.1569 of Regulations No. 4 and Rules 202.12 and 202.03, Table No. 2 of Appendix 2, Subpart P, Regulations No. 4, direct a conclusion that, considering the claimant's residual functional capacity, age, education, and work experience, he is not disabled. Tr. 21, Finding 11.
At Step 5, the Commissioner engages in a two-pronged analysis. See discussion in Section VII, above.
IX. PLAINTIFF'S POINTS OF ERROR; COMMISSIONER'S RESPONSES
Verbatim, plaintiff's points of alleged error are as follows:
Whether the Commissioner erred as a matter of law by improperly evaluating the opinion of Mr. Hoffman's treating physician, Dr. Mims, and failing to evaluate the plaintiff's subjective complaints of pain.
Whether the ALJ abused her discretion by her failure to apply the proper guidelines and weight with respect to the testimony of the Vocational Expert.
Pl.'s Br. at Statement of the Issues. From a fair reading of plaintiff's brief, these points are restated in a manner more susceptible to analytical judicial review as follows:
The Commissioner failed to apply proper principles of law because ALJ Azdell did not comply with Social Security Ruling 96-2P when (a) not giving controlling weight to a treating physician's opinion, and (b) failing to gather additional information from the treating physician;
The Commissioner's decision is not supported by substantial evidence because (a) it is based on a vocational expert witness's unreliable opinion testimony, and (b) ALJ Azdell did not articulate plausible reasons for discrediting plaintiff's subjective complaints of pain.
Commissioner Barnhart responds that the treating physician's opinion is not controlling because it is cast into doubt by his own records which contain no objective medical basis for plaintiff's continuing complaints of pain and by conflicting medical evidence. Further, the Commissioner argues that ALJ Azdell made affirmative and adequate findings regarding lack of credibility of plaintiff's subjective pain, including inconsistent statements regarding plaintiff's activities, medical findings which contradict plaintiff's claims of limitation, and evidence that plaintiff takes no prescription pain medication. Finally, the Commissioner cites the administrative transcript and argues that it shows evidence supporting the vocational expert's opinion regarding transferability of skills.
X. DISCUSSION AND ANALYSIS
At first blush, one instinctively regards the Commissioner's decision with suspicion. It is premised on ALJ Azdell's determination that plaintiff has a residual functional capacity for a full range of light work. To suggest that anyone who has undergone three major back surgeries has capacity for a full range of work requiring any level of physical exertion contradicts the light of common experience. However, it is appropriate here to remember that judicial review is quite limited. This court is not free to evaluate the evidence de novo, or to make its own common-sense deductions, or to substitute its judgment for that of the Commissioner. Moreover, the court is bound to apply statutory eligibility standards, notwithstanding their unrealistic nature. Similarly, the court must review and evaluate the Commissioner's decision under well-established, albeit arcane, regulations, and cannot base a decision on subjective views of justice. Finally, the court addresses only the points of error presented. It does not scour the record for other potential errors.
That said, substantive analysis begins. Plaintiff's appellate points allege that the Commissioner's decision is infirm due to both legal errors and evidentiary errors. While all points are addressed, it is appropriate to address alleged legal errors first.
A. Alleged Legal Errors
Plaintiff's surgeon Dr. Mims, monitored plaintiff during his surgeries and thereafter for several years. Eventually, Dr. Mims concluded that plaintiff's vocational capacity is limited to sedentary work. ALJ Azdell rejected that assessment and found instead that plaintiff's residual functional capacity is for a full range of light work. Under this finding, she was permitted to consult the grids for a determination. The grids directed a finding of not disabled.
"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. . . . Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." 20 C.F.R. § 404.1567(a).
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. . . . [Light work] requires a good deal of walking or standing, or . . . sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, [a claimant] must have the ability to do substantially all of these activities." 20 C.F.R. § 404.1567(b).
Had ALJ Azdell accepted Dr. Mims's opinion, there likely would have been a different result. When the Commissioner cannot decide whether an applicant is disabled based on medical evidence alone, the Commissioner will consider the applicant's vocational background. This analysis involves consideration of the applicant's past relevant work, the applicant's residual functional capacity for other work, and vocational factors of age, education and work experience. Plaintiff is 56 years old, which places him in the "advanced age" category as defined in 20 C.F.R. § 404.1563(e). The regulations direct that a person of advanced age who is capable of only sedentary work or light work, with no transferable skills, is incapable of making an adjustment to other work and should be found disabled. 20 C.F.R. § 404.1568(d)(4). VE Couch testified that plaintiff's skills are transferable to light work, but not to sedentary work. Therefore, if plaintiff's residual functional capacity were for sedentary work, he would be found disabled.
Plaintiff's legal points of error assert that ALJ Azdell did not apply correct principles of law when rejecting Dr. Mims's residual functional capacity assessment. Specifically, plaintiff asserts that ALJ Azdell's treatment of the issue was contrary to Social Security Ruling 96-2P.
The Commissioner issued Social Security Ruling 96-2P to guide and govern persons making disability determinations. The subject matter of this ruling is the weight and effect to be accorded treating physician's opinions. The ruling states that a treating source's opinion must be given controlling weight if it is both well-supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence in the case record. The ruling further authorizes the disability examiners to request additional evidence from treating physicians to clarify findings or to reconcile inconsistencies.
Plaintiff complains that ALJ Azdell violated the ruling by not giving Dr. Mims's opinion controlling weight, and by failing to further develop the record. Each argument is addressed separately.
1. Failure to give Controlling Weight to Treating Physician Opinion
The first prong of plaintiff's argument glosses over the fact that Social Security Ruling 96-2P requires that disability examiners afford controlling weight to treating physician opinions only when they are (a) well-supported by medically acceptable clinical and laboratory diagnostic techniques and (b) not inconsistent with other substantial evidence in the case record. Thus, this issue turns on examination of these two factors.
Is Dr. Mims's opinion supported by medically acceptable clinical and laboratory diagnostic techniques?
Dr. Mims's opinion (that plaintiff is limited to sedentary work) is based fundamentally on plaintiff's subjective complaints of pain. That plaintiff has impairments which can be expected to produce pain is undisputed. However, Dr. Mims's records do not reveal any diagnostic notes accounting for the level and intensity of pain averred by plaintiff. Indeed, Dr. Mims noted good progress following plaintiff's surgery in 1994. Tr. 200, 211. Only when plaintiff repeatedly complained of pain did Dr. Mims lower his capacity assessments. See Section V.A., infra. Despite repeated examinations, Dr. Mims's treatment notes reveal no medical explanation for plaintiff's alleged level of pain and instead note plaintiff's subjective complaints. Indeed, Dr. Mims's most recent assessment (December, 1997) indicates that he has no physiological explanation for pain as alleged by plaintiff. See Section V.A., infra. Thus, ALJ Azdell acted within her discretion in determining that Dr. Mims's opinion is not supported by medically acceptable clinical and laboratory diagnostic techniques.
Is Dr. Mims's opinion consistent with other substantial evidence of record?
Assessments by consulting and examining physicians and Center for Industrial Rehabilitation indicate that plaintiff is capable of performing at least light work. Also relevant are the notes of two medical sources, Dr. Kerr and Center for Industrial Rehabilitation, which indicate that plaintiff was not fully cooperative in flexion and extension testing to determine lumbar health. See Section V.B., infra. Consequently, ALJ Azdell acted within her discretion when deciding that Dr. Mims's assessment was not consistent with other medical evidence of record.
2. Failure to further Develop the Record
The second prong of plaintiff's argument is that ALJ Azdell failed to request additional information from the treating physician, Dr. Mims, as contemplated by Social Security Ruling 96-2P. Certainly, that option was available. However, the ruling further provides that "development should not be undertaken for the purpose of determining whether a treating source's medical opinion should receive controlling weight if the case record is otherwise adequately developed." Here, the record appears adequately developed — including treating physician's opinions, treatment notes, surgical notes, and opinions of other physicians. There does not appear to be any gap in the treating physician's notes. The plaintiff's brief does not suggest that there is additional clinical evidence supporting plaintiff's complaints of pain. Consequently, there is no discernible error arising from failure to request additional information from the treating physician.
In addition, case law teaches that reversals based on failure to develop the record require a showing of prejudice. Kane v. Heckler, 731 F.2d at 1219 (5th Cir. 1984). Thus, to secure relief here, plaintiff must show that he could and would have adduced evidence that might have altered the result. Plaintiff does not demonstrate how he was prejudiced from lack of evidence, and he does not specify evidence which, if admitted now, would likely alter the decision.
B. Alleged Evidentiary Errors
Plaintiff contends that the Commissioner's decision is not supported by substantial evidence for two reasons. First, ALJ Azdell improperly discounted plaintiff's testimony regarding disabling pain. Second, she improperly embraced VE Couch's testimony that plaintiff possessed vocational skills that were transferable to jobs in the light work category. Each contention is examined in this section.
1. Discounting Plaintiff's Testimony Regarding Pain
Pain alone constitutes a disabling condition when it is "constant, unremitting, and wholly unresponsive to therapeutic treatment." Wren v. Sullivan, 925 F.2d 123, 128 (5th Cir. 1991). Consequently, an ALJ must receive and carefully evaluate an applicant's testimony concerning subjective complaints of pain. Case law establishes numerous grounds on which an ALJ may reject an applicant's testimony. But if an ALJ elects not to credit the applicant's testimony, the judge must articulate creditable reasons. See Social Security Ruling 96-7P (1996); Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994); Abshire v. Bowen, 848 F.2d 638, 642 (5th Cir. 1988). Failure to do so results in a decision not supported by substantial evidence. Falco v. Shalala, 27 F.3d at 163; Abshire v. Bowen, 848 F.2d at 642.
For example, an applicant's subjective complaints of pain may be rejected when they are not corroborated by objective medical evidence.See Wren, 925 F.2d at 129; Houston v. Sullivan, 895 F.2d 1012, 1016 (5th Cir. 1989). Similarly, an applicant's testimony can be discounted when the evidence reflects that pain can be remedied or controlled by medication or therapy. Johnson v. Bowen, 864 F.2d 340, 348 (5th Cir. 1988).; Cullivan v. Shalala, 886 F. Supp. 568, 577 (E.D.Tex. 1995); see Villa v. Sullivan, 895 F.2d 1019 (5th Cir. 1990). Additionally, an applicant's testimony can be disregarded when his daily activities belie his assertions of disabling pain. Leggett v. Chater, 67 F.3d 558, 565 n. 12 (5th Cir. 1995) (citing Reyes v. Sullivan, 915 F.2d 151, 155 (5th Cir. 1990) (per curiam)).
Here, ALJ Azdell found that plaintiff has medically determinable impairments which can reasonably be expected to produce the alleged symptoms, but concluded that medical evidence and other evidence of record does not support the level of severity he alleges. Tr. 18. She articulated specific reasons for assigning lesser weight to plaintiff's subjective complaints. She cited physician examinations revealing "normal sensory and motor examination, normal reflexes, and good range of motion" with "no recorded persistence of muscle spasm." Tr. 18. She also cited the fact that plaintiff has never been treated for "severe, intractable pain," has not required pain management therapy, and takes only non-steroidal, anti-inflammatory medications and no narcotic medications. Tr. 18. Finally, the ALJ stated that severity of pain as alleged by plaintiff would lead to muscle atrophy from non-use, and medical records contain no evidence of muscle atrophy. Tr. 19. In sum, the ALJ followed case law and agency guidelines by articulating reasons for her credibility determination; her reasoning is supported by the record; and she was within her discretion in assigning lesser weight to plaintiff's subjective complaints.
2. Accepting Vocational Expert's Testimony regarding Transferable Skills
As mentioned in an earlier section, vocational expert witnesses generally express opinions based on their training and experience by responding to hypothetical questions. If the hypothetical question is improper or defective, a subsequent decision relying on the opinion testimony is not supported by substantial evidence. Boyd v. Apfel, 239 F.3d 698, 707 (5th Cir. 2001).
Here, the substantial evidence challenge takes a slightly different course. Plaintiff argues that VE Couch's opinion that plaintiff has skills transferable to light work is defective. The focus of this challenge is not on transferability of skills per se, but rather upon whether the skills themselves exist. Put another way, plaintiff asserts that VE Couch had no evidentiary basis, or used an improper resource as a basis, for stating that plaintiff has certain skills.
VE Couch testified that plaintiff's past work was as a truck driver and tool room attendant. In response to ALJ Azdell's request, she stated the numbers assigned to these jobs in the Dictionary of Occupational Titles ("DOT"). She further testified that both jobs involved exertional requirements for medium work.
The Dictionary of Occupational Titles, published by the United States Department of Labor, is a comprehensive listing of job titles in the United States. Detailed descriptions of requirements for each job include assessments of exertional level and reasoning ability necessary for satisfactory performance of the work. For Social Security proceedings, the Commissioner routinely takes administrative notice of job information contained in DOT when determining whether work exists in significant numbers in the national economy. Sykes v. Apfel, 228 F.3d at 269; Gibson v. Heckler, 762 F.2d 1516, 1518 n. 2 (11th Cir. 1985); see 20 C.F.R. § 404.1566(d)(1); see also Social Security Ruling 00-4p (2000).
VE Couch further stated that in performing these jobs, plaintiff acquired certain skills, those being writing simple reports, using hand tools, and driving commercially. Based on her training and experience, she testified that these skills are transferable to jobs involving exertional requirements for light work. She listed specific examples of such light work jobs: lot attendant, car rental driver, pharmacy helper, order filler, lab clerk and supply clerk. Tr. 56-7.
Plaintiff's brief argues that plaintiff did not testify that he used hand tools or wrote reports. Pl.'s Br. at II. Consequently, the brief argues that VE Couch must have either made up out of whole cloth her testimony regarding these skills, or else relied on the Dictionary of Occupational Titles. If the latter, plaintiff argues that Dictionary of Occupational Titles is reliable only to show the way plaintiff's past jobs generally are performed nationally. Plaintiff argues that VE Couch could not rely on Dictionary of Occupational Titles absent showings that plaintiff's past work specifically involved those skills.
These arguments are essentially flawed. First, nothing in the record suggests that VE Couch relied on DOT when expressing her opinion that plaintiff utilized these skills in past relevant work. Second, and more importantly, while true that plaintiff did not testify that he used hand tools or wrote reports, other vocational evidence that VE Couch reviewed contained the evidence. That evidence included plaintiff's Application for Disability Insurance Benefits, wherein he stated that he used "hand tools — for repair," that he used a "fork lift — moved equipment," and that he wrote reports to "describe what repairs I made to the tool, and when I repaired it." Tr. 103. Furthermore, plaintiff stated that he worked as an asphalt truck driver. Tr. 101.
In sum, VE Couch's assessment that plaintiff has transferable skills of using hand tools, writing reports, and driving commercially is based on plaintiff's own statements, not on job descriptions in Dictionary of Occupational Titles or the way jobs are performed nationally. Consequently, ALJ Azdell acted properly when relying on VE Couch's testimony.
XI. RECOMMENDATION
Because none of plaintiff's points of error should be sustained, the Commissioner's decision should be affirmed.
XII. OBJECTIONS
Within ten (10) days after receipt of the magistrate judge's report, any party may serve and file written objection to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C).
Failure to file written objections to the proposed findings and recommendation contained in this report within 10 days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings and recommendations.