Opinion
Civil Action No. 3:00CV381
August 1, 2001
Joel C. Cunningham, Sherman C. Toppin, Counselors for Plaintiff.
M. Hannah Lauck, U.S. Attorney's Office, Counselors for Defendant.
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
This matter is before the Court on cross motions for summary judgment. The Plaintiff, Thomas E. Jennings, seeks judicial review, pursuant to 42 U.S.C. § 405 (g), of the Defendant Commissioner's final decision of May 16, 2000, denying the Plaintiffs applications for supplemental security income (SSI). The Commissioner's final decision resulted from an Appeals Council denial of a request to review the decision of the Administrative Law Judge (ALJ) of February 23, 1999, in which the requested relief was denied. The ALJ, finding "[the claimant] capable of making an adjustment to work which exists in significant numbers in the national economy," concluded that the Plaintiff was not eligible for SSI under Sections 1602 and 1614(a)(3)(A) of the Social Security Act. (Record R. at 28). For the reasons discussed below, it is this Court's recommendation that the Defendant's Motion for Summary Judgment be DENIED, Plaintiffs Motion for Summary Judgment be GRANTED in part and DENIED in part, and that the final decision of the Commissioner be VACATED and REMANDED.
PROCEDURAL HISTORY
Alleging a disability onset date of November 11, 1984, the Plaintiff applied for SSI and Disability Insurance Benefits (DIB) on April 8, 1992. (R. at 35-37). On April 30, 1992, the application was initially denied and again upon reconsideration. Following a February 22, 1994 hearing, the ALJ found that despite a borderline intellect, insulin-dependant diabetes, and a seizure disorder, the Plaintiff could perform a wide range of light work, and his claim was accordingly denied. When the Plaintiff did not appeal this decision, it became the final decision of the Commissioner regarding his alleged disability through February 22, 1994. (R. at 14).
The Plaintiffs application for SSI currently under review was filed on September 7, 1994, alleging a different onset date of November 1, 1982.Id. The differing, alleged onset dates are permitted by the regulations. However, the ALJ deemed the second SSI application too remote from the initial denial date of the original application to allow the former to be reviewed. He further found no bases outside of the regulations to review the initial application denial. Thus, the most recent ALJ decision concerns only the medical evidence corresponding to the period of twelve months or less before the current application date. (R. at 14-15). Despite the Plaintiffs request for both SSI and DIB in his Motion for Summary Judgment, he did not appeal the ALJ's limitation of relief to SSI, based upon the application of September 7, 1994, and, therefore, the request to review the denial of DIB must be summarily denied. (Pl.'s Mot. for Summ. J., at 4).
"With slowly progressive impairments, it is sometimes impossible to obtain medical evidence establishing the precise date an impairment became disabling. . . . [I]n such cases, it will be necessary to infer the onset date from the medical and other evidence that describe the history and symptomatology of the disease process." SSR 83-20; 1983 WL 31249, *2 (S.S.A.); Gray v. Apfel, 191 F.3d 447, 1999 WL 710362, **2 (4th Cir. 1999). To echo the court in Wilson v. Heckler, "[the] question is of sufficient consequence for us to express our confidence that a finding as to the date of the onset of disability will be made if benefits are awarded. This is not to infer that such would not ordinarily be done, but only to call the matter to the attention of the parties." 743 F.2d 218 (4th Cir. 1984).
The current application under review does not request DIB.
The present application was denied initially on October 25, 1994, and again upon reconsideration on January 27, 1995. (R. at 163-66, 169-72). A hearing was held before ALJ Paul Buxbaum on February 28, 1996, who rendered an unfavorable decision on March 22, 1996. (R. at 253-77). Although the ALJ found the Plaintiff "unable to perform the full range of light work," he nevertheless determined that the Plaintiff was "capable of making an adjustment to work that exists in significant numbers in the national economy." (R. at 270).
The decision was reviewed upon request by the Appeals Council, which remanded the claim due to a partially-inaudible transcript and to clarify the differing psychological reports utilized in the first hearing. (R. at 291-292). The ALJ, after the second hearing that was held on September 1, 1998, again found the Plaintiff not disabled and "capable of making adjustments to work which exists in significant numbers in the national economy." (R. at 28). The ALJ based his second decision on "findings concerning [the Plaintiffs] age, education, work experience and residual functional capacity." (R. at 16). On March 2, 1999, the Plaintiff timely requested a review by the Appeals Council of the decision. (R. at 370). Concluding that there was no basis for review, the Appeals Council denied the request on May 16, 2000, and the ALJ's decision therefore became the final decision of the Commissioner concerning the Plaintiffs second application for SSI. (R. at 8-9).
The Appeals Council ordered: "Upon remand, the [ALJ] will: Obtain evidence from a medical expert . . . to interpret the psychological evaluations.[sic] As necessary, obtain a consultative mental status examination with psychological testing and medical source statements about what the claimant can still do despite the impairments.[ sic] If necessary, in light of the claimant's limitations, obtain evidence from a vocational expert to clarify the effect of the assessed limitation on the claimant's occupational base." (R. at 292).
The Plaintiff timely filed the present appeal to this Court. This matter has been fully briefed by both parties and is ready for resolution. See Myers v. Califano, 611 F.2d 980 (4th Cir. 1980).
QUESTION PRESENTED
Is the Commissioner of Social Security's decision that the Plaintiff is not entitled to supplemental security income supported by the application of the correct legal standard and substantial evidence on the record?
STANDARD OF REVIEW
In reviewing the decision of the Commissioner to deny benefits, the Court is limited to determining whether the Commissioner's decision was supported by substantial evidence on the record and whether the proper legal standard was applied in evaluating the evidence. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence is more than a scintilla, less than a preponderance, and is the kind of relevant evidence which a reasonable mind could accept as adequate to support its conclusion. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citingRichardson v. Perales, 402 U.S. 389, 401 (1971); and Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)).
In order to find whether substantial evidence exists, the Court is required to examine the record as a whole, but may not "undertake to re-weigh the conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the Secretary." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). In considering the record as a whole, the Court must "take into account whatever in the record fairly detracts from its weight." Breeden v. Weinberger, 493 F.2d 1002, 1007 (4th Cir. 1974). The Commissioner's findings as to any fact, if the findings are supported by substantial evidence, are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. at 390. While the standard is high, where the ALJ's determination is not supported by substantial evidence on the record or where the ALJ has made an error of law, the district court must reverse the decision. Coffman v. Bowen, 829 F.2d at 517.
MEDICAL EVIDENCE
When the Plaintiff first applied for DIB in 1992, he alleged his ailments to be diabetes and a seizure condition. (R. at 43). This was confirmed by the state agency which reviewed the available evidence. (R. at 19). In preparation for his original hearing, the Plaintiff was evaluated by psychologist Bede Pantaze on February 26, 1993. The examiner noted that the Plaintiff had no difficulties with his gait or posture and that he "related to the examiner, who was a stranger, without any difficulty whatsoever." (R. at 108). The Plaintiffs ability to relate well with the examiner is noted in spite of his "compliant [though] quite indifferent" affect. (R. at 107). Although the Plaintiff informed Dr. Pantaze that watching television and sleeping were his major daily activities, he also stated that he took care of his personal needs, enjoyed painting inside and outside, and cleaned the yard. (R. at 108). Noting the Plaintiffs history of alcohol abuse, including a conviction for driving under the influence, the examiner nonetheless wrote, "the medical information suggests that [the alcohol abuse] is in remission. Therefore this examiner considers Mr. Jennings at this time capable of managing [his] own affairs." (R. at 111).
The Plaintiff was also administered the Wechsler Adult Intelligence Scale — Revised (WAIS-R) and the Bender Visual Motor Gestalt Test as part of the evaluation. On the former, "Mr. Jennings received a full scale general intellectual functioning level which falls toward the upper end of the borderline intellectual range . . . [and] with his reasonable efforts, this appears to be a valid assessment of his current intellectual/cognitive functioning." (R. at 109-10). In regard to the latter test, "there was no evidence in these [tests] to suggest perceptual acuity difficulties or muscle/motor coordination difficulties which would have any type of organic etiology." Id. The examiner also wrote: "Is Mr. Jennings apt to deteriorate or decompensate in the work setting? This would appear to be strictly a medical/physical opinion as from a psychological/emotional/mental status point of view, Mr. Jennings appears to have work-related capabilities. He obviously probably could not work around machinery." (R. at 108).
The WAIS-R is a "continuously revised and updated scale for the measurement of general intelligence . . . in adults." Stedman's Medical Dictionary 1596 (Maureen Barlow Pugh ed., Lippincott, Williams, and Wilkins 27th ed. 1999).
The Bender Visual Motor Gestalt Test is "a psychological test used by neurologists and clinical psychologists to measure a person's ability to visually copy a set of geometric designs; useful for measuring visuospatial and visuomotor coordination to detect brain damage." Id. at 1798.
Following the unfavorable ruling from the ALJ dated February 22, 1994, in which it was concluded the Plaintiff was capable of performing a wide range of light work and, thus, not disabled, and before the submission of his current application, Samuel J. Fletcher, Ph.D., performed a psychological assessment. Dr. Fletcher described the Plaintiff as solemn or serious with his "judgment, common sense, and insight to be limited." (R. at 19, 228-34). The WAIS-R test administered by Dr. Fletcher revealed similar, but slightly lower scores than the test administered by Dr. Pantaze. Addressing the discrepancy, Dr. Fletcher noted that he could not be certain as to why the test scores were different, but that "differences between the examiners may well be a factor." (R. at 233). Dr. Fletcher concluded by stating: "the claimant [is] marginally competent to handle his own funds but it would be better if someone else did." Id.
Furthermore, Dr. Fletcher assessed the Plaintiffs ability to use judgment, as well as his ability to maintain attention and concentration, as "poor to none." (R. at 235). Likewise, the Plaintiffs ability to "understand, remember, and carry out simple job instructions" was determined to be only fair, with poor to no ability to handle detailed or complex instructions. (R. at 236). These limitations are based on Dr. Fletcher's findings of "emotional problems [and] cognitive limitations involving immediate recall and judgment." (R. at 235).
The Disability Determination Service, when processing the current application for the Plaintiff, arranged a consultative physical examination by Christopher J. Ackermann, M.D. Dr. Ackermann noted the Plaintiff had an underlying seizure disorder with a poorly-controlled diabetic state. (R. at 217). He also stated that the Plaintiff was "still experiencing daily hypoglycemia" which was perhaps his only impairment in being able to sit, stand, walk, lift, or carry or handle. Id. Dr. Ackerman felt the Plaintiff would benefit from "`medical management' if he would be willing to pursue that." (R. at 218).
With this information, the ALJ, in accordance with the Appeals Council's instructions, explained why he felt Dr. Fletcher's assessment to be less valid than those by the other two doctors. The ALJ noted that the Plaintiff had prior semi-skilled work experience, but felt that if he was as unintelligent as Dr. Fletcher's testing seemed to indicate, "it is unlikely that the claimant would have been have been capable of semi-skilled work." (R. at 21). The ALJ also viewed Dr. Fletcher's report as less reliable because the doctor noted the Plaintiff was "guarded in his responses and that his statements were of no better than fair reliability." Id.
Following the ALJ's unfavorable ruling, and before the Appeals Council's remanding of the case for a supplemental hearing, the Plaintiff had another consultative psychological/disability evaluation performed at the request of his counsel. Jeffery T. Barth, Ph.D., performed the examination on June 7, 1996. (R. at 318). Among the tests administered to the Plaintiff by Dr. Barth was the WAIS-R. Dr. Barth indicated that the scores received "represent[ed] a midpoint to the two previous examinations." (R. at 321). Like Dr. Fletcher, Dr. Barth found the Plaintiff had no ability to use judgment, deal with the public, function independently, or maintain attention or concentration. The Plaintiff was also noted to have a poor ability to follow rules, but a fair ability to interact with supervisors and deal with work stresses, as well as a good ability to relate to co-workers. (R. at 313). Dr. Barth also concluded that the Plaintiff could not understand, remember or carry out "complex job instructions" or "detailed, but not complex, job instructions" and that he had a poor ability to understand, remember, and carry out "simple job instructions." Id. The rankings are somewhat below Dr. Fletcher's that indicated a fair ability to handle simple job instructions. (R. at 236).
Before the final hearing before the ALJ, the Plaintiff met with another doctor for a consultative psychological evaluation arranged by the state agency. Robert M. Tipton, Ph.D., examined the Plaintiff on February 23, 1998. In contrast to the previous examiners' reports, Dr. Tipton's is notable for his complete distrust of the Plaintiffs responses. Despite observing that the Plaintiff "had no difficulty expressing simple ideas and readily understood my questions and answers," Dr. Tipton felt the Plaintiff "distorted his responses to give the impression that he was totally impaired and inept." (R. at 326). After relating a question/response exchange, the examiner noted, "Mr. Jennings clearly demonstrated throughout the session that he had the ability to give a much higher quality response to this question." (R. at 327). The Plaintiff also received a Verbal Scale IQ of 60 on the WAIS-R. (R. at 328). The score was apparently far lower than scores previously assessed. (R. at 109, 234, 320). Further responses by the Plaintiff to the tests lead Dr. Tipton to conclude that he was unable to make an estimate of the Plaintiffs ability level because he felt the results were invalid. (R. at 328-29).
"When asked why people refrigerate food, [the Plaintiff] responded, `So you can have something to eat.' When asked why they keep it in the refrigerator rather than the cabinet, he responded, `Because you keep cans in the cabinet and they [sic] wouldn't be room for it.'" (R. at 327).
At the final hearing, Robert S. Brown, Jr., M.D., testified as an impartial medical expert based on his review of all the medical evidence. Dr. Brown initially provided an overview of the Plaintiffs condition: "This man has a history of diabetes, head injury, epilepsy, binge drinking type of alcoholism, and poor compliance with medical treatment." (R. at 424). Dr. Brown also noted that the records supported the contention that the Plaintiffs condition had been steadily worsening over two-year periods, at least since 1994. (R. at 426). The doctor, nevertheless, addressed the cause of the Plaintiffs deteriorating condition, stating: "Why has he gotten worse, what are his problems? The real issue is non-compliance. Non-compliance in his being told don't drink. Non-compliance with taking the Dilantin medication. Non-compliance with the regimen of recommendation for the diabetes." Id. Dr. Brown further opined that if the Plaintiff were compliant — were he to take his medication, follow medical advice, and avoid alcohol then he would likely be able to work at a "light and simple" level. (R. at 427).
The ALJ asked the doctor if, based on the record, the Plaintiff met listing 12.02. (R. at 429). Dr. Brown responded that the Plaintiff, at times, did meet the listing, while at other times he did not. He explained that the times the listing requirements were met corresponded to periods of non-compliance. Id. The ALJ also asked if the Plaintiff, after taking into account all the medical evidence, has a "condition which can account for the non-compliance." (R. at 431). The doctor replied in the negative. Id. Asked by the ALJ for further examples of the Plaintiffs non-compliance, Dr. Brown replied that over half of the Dilantin levels in the record were "subtherapeutic." (R. at 435). The Plaintiffs counsel then asked Dr. Brown how that shows noncompliance. The medical expert's response indicated that any level below 2.5 would be unreadable. Id. But, if the Plaintiff had, in fact, been taking the medicine as prescribed, a reading would have been possible. Id. The medical expert said the only other reason for such a reading would be human error in the laboratory, ruling out the combination of the Plaintiffs other prescriptions as a possible cause for the low Dilantin reading. (R. at 435-436).
20 C.F.R. Pt. 404, Subpt. P, App. 1. § 12.02: Organic Mental Disorders: Psychological or behavioral abnormalities associated with a dysfunction of the brain. History and physical examination or laboratory tests demonstrate the presence of a specific organic factor judged to be etiologically related to the abnormal mental state and loss of previously acquired functional abilities.
Upon evaluating the Plaintiffs medical evidence, the ALJ made the following findings: "The medical evidence establishes that the claimant has a history of diabetes and seizures and has a borderline intellect and a visual impairment. This combination of impairments is `severe' but does not meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4." (R. at 27). Furthermore, the ALJ noted that "[t]he claimant's statements concerning his impairments and their impact on his work are not credible." Id.
Plaintiffs vision is described as best corrected at 20/50 and slightly blurry. An eye exam administered by Dr. Ethnie Small Jones on October 15, 1998, noted her impressions as "Adult onset diabetes mellitus without evidence of diabetic retinopathy. Unexplained blurred vision of 20/50 with a question of possibility of uncontrolled glucose." (R. at 364). Although this examination was administered after the hearing, the ALJ received the report into evidence and used it in his ultimate determination. (R. at 24).
VOCATIONAL EVIDENCE
The Social Security Administration has established a sequential evaluation process to determine if a claimant is eligible for benefits. 20 C.F.R. § 416.920. The sequence requires a review of the claimant's work and medical history. The first criterion for the claimant to overcome, if he is to receive benefits, is that he must not be working and, if he is, that work must not be substantial gainful activity (SGA). § 416.920(b). If a claimant's work does equal SGA, a finding of not disabled will immediately result. Id. Should the claimant establish that he does not participate in SGA, he must then prove that he has "a severe impairment or combination of impairments which significantly limit [his] physical or mental ability to do basic work activities." § 416.920(c). With an impairment established, a claimant may receive benefits if the impairment is listed in Appendix 1 and meets the duration requirement. § 4 16.920(d).
In defining "Substantial Gainful Activity", the C.F.R. defines "substantial work activity" and "gainful work activity". Substantial work activity is "work activity that involves doing significant physical or mental activities. Your work may be substantial even if it is done on a part-time basis or if you do less, get paid less, or have less responsibility than when you worked before." Gainful work activity is work activity done for "pay or profit, whether or not profit is realized." Taking care of oneself, performing household tasks or hobbies, therapy or school attendance, and the like are not generally considered substantial gainful activities. 20 C.F.R. § 404.1572.
If benefits cannot be rewarded based on the claimant's medical and work history, the Administration will assess the individual's Residual Functional Capacity (RFC) and the "physical and mental demands of work [he has] done in the past." § 416.920(e). If this work can be performed, benefits will not be rewarded. Id. However, if the claimant's past work cannot presently be performed, a finding of disabled is not made but benefits can only be denied if the Administration establishes that other work can be performed, considering the age, education, past work experience, and RFC of the claimant. If that finding cannot be made, then a finding of disabled will result. § 416.920(f)(1).
The Plaintiff, by his own account, left school in the seventh grade and attended trade school at about the age of seventeen. He related such personal history consistently to the examining physicians during the entire application process. (R. at 106, 228, 319, 324). Dr. Barth, in his report of June 7, 1996, noted that the Plaintiffs school reports appeared incomplete and that his seventh grade educational level could not be confirmed. (R. at 319). However, when Dr. Barth wished to administer the Minnesota Multiphasie Personality Inventory-2 (MMPI-2), the Plaintiff failed to attain the minimum eighth-grade reading level to take the test and he was instead administered the Beck Depression Inventory. (R. at 321).
The MMPI is "a questionnaire type of psychological test for ages 16 and over, with 550 true-false statements coded in validity and 10 personality scales which may be administered in both an individual or group format." Stedman's Medical Dictionary at 1805. The Beck Depression Inventory "is a self-administered 21 item self-report scale measuring supposed manifestations of depression. The BDI takes approximatelylo minutes to complete, although clients require a fifth to sixth grade reading age to adequately understand the questions," available at http://www.criminology.unimelb.edu.au/victims/resources/ assessment/affect/bdi.html.
The Plaintiff was also consistent when relating his work history. To Drs. Barth and Tipton, he said he worked six to seven years for his father as a brick mason and at "the railroad" for seven years. (R. at 318-19, 324-25). Likewise, Drs. Fletcher, Ackermann, and Jones were told of about seven years employment at the Norfolk and Western Railroad. (R. at 215, 229, 363). The Plaintiff stated that he left his job as a railroad-tie splitter following the development of his seizure disorder. (R. at 319, 325).
Dr. Fletcher reported employment dates of 1976-1984, while all of the other doctors recorded dates of 1976-1982. Why Dr. Fletcher recorded a different ending date is unknown.
Drs. Pantaze, Fletcher, Barth, and Tipton all made note of the Plaintiffs Activities of Daily Living (ADL). In 1993, Dr. Pantaze wrote that the Plaintiff took care of his personal needs, ate breakfast, collected wood, and cleaned his yard. (R. at 108). While he no longer hunted or fished, it was noted that the Plaintiff would paint his house, inside and out, and sleep as well as watch television. Id. Dr. Fletcher recorded that the Plaintiff would go to town with his mother. (R. at 230). Dr. Barth's ADL notes are derived from interviewing the Plaintiffs mother, Christine Jennings. (R. at 320). She told Dr. Barth that her son was "once quite helpful around the house" and that "he [would] make his bed, bathe himself, change his clothes and is in fact quite particular about his hygiene, but is otherwise unable to do `exhaustive work'." Id. In 1998, Dr. Tipton noted that the Plaintiff would cut the grass, make his bed, straighten his room, and take out a small bag of trash. (R. at 325).
Dr. Tipton expressed doubt as to the Plaintiffs truthfulness throughout his examination. However, the Plaintiffs answers regarding his ADL appear to coincide with previous answers to his examiners and were accepted by the ALJ.
Dr. Pantaze also noted that the Plaintiff had a very good ability to follow work rules; a fair ability to deal with work stresses; and a good ability to relate to co-workers, deal with the public, use judgment, interact with supervisors, function independently, and maintain attention and concentration. (R. at 113-14). While Dr. Pantaze felt the Plaintiff had only a fair ability to understand, remember, and carry out complex job instructions, she also believed him to have a very good to unlimited ability to understand, remember, and carry out detailed and simple job instructions. Id. The Plaintiffs abilities to maintain personal appearance, behave in an emotionally stable manner, relate predictably in social situations, and demonstrate reliability were all ranked as "good" by the doctor. Id.
In contrast to Doctor Pantaze's findings, Dr. Fletcher, in his report nearly one year later, thought the Plaintiff only possessed a fair ability to follow work rules, relate to co-workers, deal with the public, interact with supervisors, deal with work stresses, and function independently. (R. at 235). The Plaintiff received from Dr. Fletcher a ranking of poor to none on his abilities to use judgment and to maintain attention and concentration. Id. While the Plaintiff had a fair ability to understand, remember, and carry out simple job instructions, he also had, according to Dr. Fletcher, poor to no ability to understand, remember, and carry-out complex or detailed work instructions. (R. at 236). Finally, with a good ability to maintain personal appearance, Dr. Fletcher concluded that the Plaintiff had but a fair ability to behave in an emotionally stable manner, relate predictably in social situations, and demonstrate reliability. Id.
At the 1996 hearing to determine the Plaintiffs disability status, Gerald K. Wells, Ph.D., appeared as a Vocational Expert (VE) to assess the Plaintiffs ability to work. When asked by the ALJ to characterize the Plaintiffs past relevant work, Dr. Wells noted that the Plaintiff had worked as a laborer and machine operator and described this work as "heavy in exertion and semiskilled, but [he] would not consider there to be any transferable skills from that past work." (R. at 388). The brick mason work performed by the Plaintiff was described by the VE as heavy and unskilled. (R. at 389).
The ALJ determined that the Plaintiff was not engaging in SGA and had not since 1982. (R. at 260). In addition, the Plaintiff's impairment was determined to be "severe," as required by 20 C.F.R. § 416.920 to qualify for benefits. The ALJ found the Plaintiff suffering from a combination of impairments as supported by the evidence and wrote, "Mr. Jennings has a seizure disorder, diabetes mellitus, and borderline intellectual functioning, impairments which cause significant vocationally relevant limitations." (R. at 261).
Diabetes mellitus is "a chronic metabolic disorder in which utilization of carbohydrate is impaired and that of lipid and protein enhanced . . . characterized, in more severe cases, by chronic hyperglycemia, glycosuria, water and eletrolyte loss, ketoacidosis, and coma." Stedman's at 490.
The third step in the analysis requires that the claimant's impairments meet the criteria of impairments listed in the regulations. 20 C.F.R. Pt. 404, Sbpt. P, App. 1. Having reviewed the evidence, the ALJ addressed each of the Plaintiffs impairments individually. (R. at 261-62). Regarding the Plaintiffs seizures, the regulations require a finding of either daytime episodes or nocturnal episodes with residuals that interfere with daytime activities, as documented by EEG test results. App. 1, § 11.02. The seizures must also be found to occur more frequently than once a month in spite of at least three months of prescribed treatment. Id. The ALJ noted that the Plaintiff, though experiencing seizures, only had them at night after which he returned to "normal." Furthermore, it was noted as uncertain if the Plaintiff maintained necessary medication compliance. (R. at 261).
The Plaintiffs diabetes mellitus also failed to meet the criteria in the Regulations. Section 9.08 of Appendix One requires the disease to be coupled with neuropathy, acidosis, amputation due to necrosis or peripheral arterial disease, or retinitis proliferans. App. 1 § 9.08. While the ALJ noted that "some [of his] physical changes might represent early neuropathy. he manifests no end-organ complications secondary to diabetes." (R. at 261). The Plaintiff therefore met none of the above required ailments and the ALJ did not otherwise find an ailment to fulfill the requirement. Id.
The Plaintiff does not challenge the validity of the ALJ's medical findings regarding the diabetes mellitus and seizure disorder. Rather, the Plaintiff attacks the ALJ's conclusions regarding his intellectual competence and ability to sustain a work load as demanded by the Regulations.
The listings regarding a claimant's intellect are addressed in § 12.05 of the Appendix. As the ALJ noted, paragraph C of the section requires a valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing additional or significant work-related limitations of function." Id., App. 1, § 12.05, ¶ C. The ALJ disregarded the IQ (based on WAIS-R) assessed by Dr. Fletcher in favor of the score recorded by Ms. Pantaze. (R. at 267-68). He accordingly found the Plaintiff to have an IQ above 70 and thus outside of the applicable range. (R. at 261-62).
As the Plaintiff could not be determined to suffer from a qualifying disability at that point of the sequence, the ALJ had to next determine the Plaintiffs RFC in accordance with step four of the process, "which describes the range of work activities the claimant can perform despite his impairments." (R. at 262). If, after the RFC determination, the ALJ finds that the Plaintiff can return to his past work, then a finding of not disabled will be made and benefits denied. 20 C.F.R. § 416.920 (e); (R. at 263).
Citing Dr. Godsey, the Plaintiffs treating physician, and Dr. Ackermann, the ALJ assessed the Plaintiffs RFC as "light." Dr. Godsey stated that his patient was limited to "light work that would not require him to finger, feel, or perform work that would expose him to heights, moving machinery, temperature extremes, chemicals, noise, fumes, humidity, and vibration." (R. at 136-37, 262). Furthermore, Dr. Godsey stated that the Plaintiff could climb, balance, stoop, crouch, kneel, crawl, and push and pull occasionally. (R. at 135). The ALJ also referred to Dr. Ackermann's report of January 13, 1995, in which the doctor found the Plaintiffs ability to sit, stand, lift, carry or handle . . . unimpaired, except perhaps by possible hypoglycemic episodes which should be managed medically." (R. at 217, 262). The ALJ found the Plaintiff able to perform light work, but with limited capacity based on Dr. Godsey's findings and the Plaintiffs statements regarding his blurry vision. (R. at 262). Given that the Plaintiffs past work experience was rated as heavy and semi-skilled, the ALJ accordingly found the Plaintiff could not return to his previous work with his present RFC assessment. (R. at 263).
"Occasionally" was here defined as "from very little up to 1/3 of an 8-hour day." (R. at 135).
"[T]he claimant . . . cannot perform more than simple, unskilled, low stress jobs." (R. at 262).
Without the ability to return to his past work, the Plaintiff no longer needed to prove his disability, as the burden shifted to the Defendant to prove that jobs exist in the national economy to which the Plaintiff could make adjustment. 20 C.F.R. § 416.920 (f)(1); (R. at 263). When the ALJ posed a hypothetical to the VE concerning the availability of possible employment in the national economy based upon the Plaintiffs medical status and the report issued by Dr. Pantaze (R. at 113-14), the VE responded that such a person could perform work in the national economy as a maid or house person, a furniture finisher, a packager or material handler, or a bus person. (R. at 389-90). However, when the ALJ posed a similar hypothetical to the VE incorporating Dr. Fletcher's results (R. at 235-36) instead of Dr. Pantaze's, the VE responded that no jobs would exist in the economy to which the Plaintiff could make adjustments, apparently because of the attendant stress levels. (R. at 399-400).
Dr. Godsey's and Dr. Ackermann's reports were also incorporated into the hypothetical.
THE DECISION OF MARCH 22, 1996
In his decision of March 22, 1996, the ALJ noted his questioning of the VE on the basis of Dr. Pantaze's conclusions regarding the Plaintiffs ability to work in jobs found in significant numbers in the national economy. (R. at 264). The ALJ also considered the Plaintiffs counsel's questioning of the VE, but discounted Dr. Fletcher's examination, focusing instead on the Plaintiffs drinking and seizure frequency. Id. The ALJ then wrote that the "evidence does not support a finding that the claimant's drinking is uncontrolled or that he has seizures at such a frequency that he would be precluded from performing the jobs identified by the vocational expert . . . The claimant has a below average ability to concentrate, however . . . the jobs identified do not require close attention." Id. Thus, a finding of "not disabled" was made. Id.
Dismissing the Plaintiffs alcohol use as not abusive and equating the Plaintiffs seizures with times that he "misses, skips, or forgets" his dilantin medication (R. at 265), the ALJ addressed the differing psychological reports of Drs. Pantaze and Fletcher. (R. at 267). The ALJ attempted to draw a distinction between the two differing testing scores by assessing the "extra-test behavior." Id. The ALJ noted that, before Dr. Pantaze, the Plaintiff was "cooperative although not highly motivated for testing." The ALJ also recited the Dr. Pantaze's positive assessment of the reliability of the Plaintiffs responses and his lack of diagnosable personality dysfunction. (R. at 267).
The Plaintiff, during his 1995 examination by Dr. Ackermann, stated that he has "seizures 1-2 times a month" and that his seizures correspond to times he does not follow his Dilantin medication regimen. (R. at 215).
This statement by the ALJ seems consistent with Dr. Pantaze's report which describes the Plaintiff as "present[ing] himself in a rather bland, flat, and apathetic manner" and "compliant [although] at times he was quite indifferent." (R. at 107).
When relating the Plaintiffs scores on the WAIS-R, Dr. Pantaze wrote: "With his reasonable efforts, this appears to be a valid assessment of his current intellectual/cognitive functioning." (R. at 109). Dr. Pantaze concluded by stating: "While he is showing some adjustment problems at this time, he is certainly not in this examiner's opinion manifesting or demonstrating to any significant extent, diagnosable personality dysfunction or disorganization." Id.
The ALJ emphasized Dr. Fletcher's observation that the Plaintiff was "annoyed" at the questions posed to him by the examiner and that the Plaintiffs responses were of "no better than fair reliability." (R. at 232, 267). Dr. Fletcher also noted, however, that he did not feel the Plaintiff was malingering. (R. at 232). Nevertheless, the ALJ noted the "intratest scatter" observed by Dr. Fletcher, concluding that it cast further doubt on the validity of the scores. (R. at 267). As both the ALJ and Dr. Fletcher wrote, the intratest scatter might be indicative of "one time higher functioning" (R. at 233, 267). The ALJ, however, dismissed this theory. He wrote, "the intratest scatter observed by Dr. Fletcher is more likely a function of some variance in the subtest scores, rendering the results less than reliable. Ms. Pantaze recorded no intratest variations." (R. at 267).
The ALJ further expressed his support for Dr. Pantaze's examination, over Dr. Fletcher's, by stating that the IQ scores she recorded were "more consistent with the claimant's developmental history (including his ability to complete a nine-month welding course and be promoted to semi-skilled work)." (R. at 268). The circumstances surrounding the examination by Dr. Fletcher were deemed by the ALJ to be suspect; specifically, he "noted that Dr. Fletcher's testing was conducted after the claimant had been denied disability benefits subsequent to his first hearing and while the case was pending review by the Appeals Council."Id. With these findings, the ALJ found the Plaintiff to be not disabled and capable of making "an adjustment to work which exists in significant numbers in the national economy." Id.
The Appeals Council ordered a supplemental hearing to clarify the differing neurological examinations by Drs. Pantaze and Fletcher and because portions of the transcript of the proceedings before the ALJ were inaudible. (R. at 290-92). The Plaintiff did not challenge on the initial appeal the physical conclusions made by the ALJ, but the ALJ addressed them during the supplemental proceedings in any event. (R. at 14-28).
Specifically, Dr. Jones's eye exam and the physical limitations noted by Dr. Godsey were discussed. In addition to Dr. Jones, the Plaintiff was examined by Jeffrey T. Barth, Ph. D., and Robert M. Tipton, Ph.D. (R. at 318, 324). The former was sought by the Plaintiff himself, while the latter examined the Plaintiff by order of the Defendant in preparation for the supplemental hearing.
THE SEPTEMBER 2, 1998 HEARING
The Plaintiff was seen for a neuropsychological examination by Dr. Barth on June 6, 1996, two weeks after the ALJ's initial unfavorable ruling. (R. at 318). The Plaintiff was administered many neurological tests, including the WAIS-R on which he achieved scores in the "borderline to mildly mentally deficient" range with a full scale IQ of 70 +/- 5. (R. at 320). Dr. Barth found this score to be "consistent with [the Plaintiffs] academic history, and represents a midpoint to the two previous examinations." (R. at 321). Dr. Barth also noted that "no significant variation was observed between subtests of performance skills, which ranged from borderline visual integration skills to severely compromised visual attention to detail." (R. at 320). As previously noted, Dr. Barth also completed a Medical Assessment of [the Plaintiffs] Ability to do Work-Related Activities. (R. at 312-17). Along with an assessment of the Plaintiffs ability to carry-out instructions of varying complexity, which is discussed above, Dr. Barth noted the Plaintiffs ability to make personal and social adjustments. (R. at 313-14). His ability to maintain personal appearance, behave in an emotionally stable manner, and react predictably in public were all found to be fair, though he had a poor ability to demonstrate reliability. (R. at 314). The examiner felt the Plaintiff "put forth his best effort" and that the results were "considered highly reliable" and a "reasonable and valid reflection of Mr. Jennings's current level of functioning." (R. at 320). Dr. Barth concluded by assessing the Plaintiffs ability to work. He wrote: "We believe that under the right circumstances and under constant supervision, Mr. Jennings could be productive. . . . In his favor, Mr. Jennings appears to have good frustration tolerance and at least a stated desire to work." (R. at 322).
On February 25, 1998, the Plaintiff was referred to Robert M. Tipton, Ph.D., for a psychological evaluation prior to his re-hearing before the ALJ. (R. at 324). As noted previously, the Plaintiffs rendition of his daily living activities and his work history were consistent with his reports to the other examiners. However, Dr. Tipton's report is most noteworthy though for the total lack of trust Dr. Tipton had in the Plaintiffs level of cooperation: "Mr. Jennings was polite and superficially cooperative," he wrote. "My impression was that he distorted his responses to give the impression that he was totally impaired and inept. Rapport was poor." Id. The Plaintiff received a 60 on the WAIS-R. (R. at 328). Dr. Tipton's "Medical Assessment of Ability to do Work-related Activities" fully reflects his distrust of the Plaintiffs responses. His ability to deal with the public and interact with supervisors was ranked as "good," but none of the other items were evaluated. Dr. Tipton wrote, "I have #3 and #[5] as Mr. Jennings interacted with me during the interview. I am not able to respond to any of the other categories because of his apparent effort to distort the test results." (R. at 331). For the same reason, the Plaintiff did not receive a score regarding his ability to carry out instructions, and was assessed as having only a good ability to maintain appearance which the examiner could ascertain in person during the interview. (R. 331-32). Dr. Tipton concluded by noting, "I consider these findings invalid and cannot, with any degree of confidence, make an estimate of his true ability level . . . His apparently unsophisticated attempt to distort the results suggests the likelihood that he is functioning at a sub-average range, although there is no way to determine that based on these results." (R. at 328-29).
"When asked what a thermometer was, his response was that it was `A scale.' The use of the term `scale' in this context involves a significant element of abstraction . . . On the Arithmetic subtest, I put seven blocks on the desk in front of him and asked him to count them. His response was to start with the block on the left end and count the first four blocks with his fingers. He then began at the opposite end and counted four blocks, after which he looked up at me and responded eight. This was from a man who previously told me he did not know what number came after one, and who could not add two plus two." (R. at 328).
At the supplemental hearing, Andrew V. Beale, Ph.D., appeared as an additional VE. (R. at 437). After outhning the Plaintiffs work history, he was asked by the ALJ various hypothetical questions based upon Dr. Barth's conclusions that the Plaintiff could do only the simplest repetitive jobs and Dr. Godsey's recommendation that the Plaintiff not work around machinery and heights. (R. at 438). The VE responded that institutional cleaner, laundry sorter, and light hand packer are all jobs that exist in the national and local economies that the Plaintiff would be capable of performing. (R. at 438-39). The ALJ inquired about the visual needs of such jobs and the VE responded that "if you could function in your daily activities, that would certainly be sufficient to perform these jobs adequately." (R. at 439).
The Plaintiffs counsel then questioned the VE based upon Dr. Barth's Ability chart findings (R. at 312-17), asking the VE to presume the hypothetical individual has a poor ability to follow rules and no ability to use judgment and maintain attention or concentration. (R. at 440-41). The VE responded that no jobs would exist for such an individual given those additional circumstances. (R. 441).
In his second decision, issued on February 23, 1999, the ALJ reiterated his reasons for preferring Dr. Pantaze's examination to Dr. Fletcher's. (R. at 19-21). Additionally, the ALT felt that "if the claimant were as intellectually limited as Dr. Fletcher's testing indicated, it is unlikely that the claimant would have been capable of semi-skilled work." (R. at 21). Also noted in the ALJ's opinion is Dr. Fletcher's assessment that "the claimant was guarded in his responses and that his statements were of no better than fair reliability." Id. The reports submitted by Drs. Barth and Tipton were further used by the ALJ to lend support to his previous decision.
The ALJ acknowledged the need to clarify the conflicting mental health reports used in the previous hearing as the major purpose of his second decision. The ALJ first noted that the Plaintiff never alleged mental impairment as a disability-causing factor; rather he consistently alleged diabetes and seizure activity. (R. at 18). The ALJ then reviewed the reports of Drs. Fletcher, Pantaze, and Ackerman and, noting again that no mental impairment had been alleged, he reiterated that the Plaintiff "has never sought treatment for a mental impairment." (R. at 21). In fact, the ALJ found no mental questions arose in the treating physician's reports concerning the Plaintiff. Id. The ALJ emphasized his preference for Dr. Pantaze's report over Dr. Fletcher's, writing: "Dr. Fletcher's was not as reliable or accurate as the [earlier report]." Id.
The ALJ also assessed the newly-submitted reports of Dr. Barth and Dr. Tipton, making the same findings as noted above. The ALJ noted that Dr. Barth's testing placed the Plaintiff at a mid-point between the earlier IQ tests, while Dr. Tipton trusted neither the patient nor the corresponding test results. (R. at 22-23). The testimony of Dr. Brown, the ME at the second hearing, was then assessed by the ALJ. The questions of non-compliance with his medication was noted as well as Dr. Brown's findings that if the Plaintiff were compliant with the prescribed treatment regimen, he would be able to complete "light work." (R. at 24). After recounting the Plaintiffs inconsistencies regarding his alcohol use, the ALJ accepted the VE's testimony that the jobs of institutional cleaner, laundry sorter, and production hand packer are all types ofjobs available in significant numbers in the national economy and Virginia to which the Plaintiff could make adjustments. A ruling of not disabled was again made. (R. at 26).
Certainly inconsistencies in the Plaintiffs self-reported substance abuse history exist, but every examiner felt that what abuse may have previously existed was then in remission. Why the ALJ seemingly discounts the consistent conclusions of all the examining experts in unclear.
ANALYSIS
The ALJ followed the required sequential process to determine the Plaintiffs disability status. He determined that the Plaintiff is not currently working and has not since 1982. The ALJ also found that the Plaintiff did not engage in SGA, the first determinative step in the sequence. § 416.920(b), (R. at 260). Furthermore, the Plaintiffs condition was found to be "severe", as required by § 416.920(c) in order to proceed in the analysis. (R. at 261). However, in the opinion of the ALJ, the Plaintiffs impainnent failed to meet the listing in Appendix 1. (R. at 261-62). Thus, the requirements of § 416.920(d) were not met and the Plaintiffs past work experience and current RFC were analyzed to determine if he could return to his former line of work. § 416.920 (e), Id. It was concluded that he could not. (R. at 263).
Without the ability to return to his previous line of employment and with no determination yet made concerning his disability status, step five in the sequence requires an assessment of the Plaintiffs ability to perform other jobs: "If you cannot do any work you have done in the past because you have a severe impairment(s), we will consider your residual functional capacity and your age, education, and past work experience to see if you can do other work. If you cannot, we will find you disabled." § 416.920(f)(1). The burden of proof shifts at step five to the Defendant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983) (indicating that once the claimant makes a prima facie showing of a disability keeping him from performing prior work, the Defendant assumes the burden of proving he does not have the capacity to perform other work).
While the ALJ determined that the Plaintiff does have the capacity to make adjustments to work which exists in significant numbers in the national and Virginia economies, he did not have a sufficient evidentiary basis to do so. The ALJ never determined if the Plaintiff could make adjustments to work and maintain a forty-hour work week, as required. 20 C.F.R. § 404.1545 (b). A Social Security Ruling, effective July 2, 1996, and entitled "Assessing Residual Functional Capacity in Initial Claims," is intended to state the Defendant's definition of the RFC and the required procedure for an RFC determination. SSR 96-8p. The first point under SSR 96-8p's section entitled "Purpose" states: "Ordinarily, RFC is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. A `regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." Id. Furthermore, the Ruling requires, when assessing the RFC, that:
"When we assess your physical abilities, we first assess the nature and extent of your physical limitations and then determine your residual functional capacity for work activity on a regular and continuing basis." § 404.1545(b) (emphasis added).
the adjudicator must discuss 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, 5 days a week, or an equivalent work schedule), and describe the maximum amount of each workrelated activity the individual can perform based on the evidence available in the case record.Id. (footnote omitted).
While the ALJ has certainly been presented with an abundant quantity of information and with several vocational expert's opinions regarding the Plaintiffs ability to work and "make adjustments to work," the ALJ neglected to determine if adjustments could be made which would allow the Plaintiff to work a full eight hour day, five day a week schedule or its equivalent, a necessary finding. SSR 96-8p
"[T]he fact that an individual has the ability to do the work involved in a particular job, even on a `sustained basis,' does not necessarily mean that she can sustain such work for a 40-hour work week."Wallace v. Apfel, 1998 WL 967376, *4 (E.D.Pa.).
The only reference found in the record to a forty-hour work week is in the transcript of the 1996 hearing. (R. at 378). Plaintiffs counsel asked the Plaintiff: "[D]o you feel that you can go back and work eight hours a day, five days a week?"; the Plaintiff responded: "No." Id. Not only is the question posed by counsel and answered by the Plaintiff, rather than a vocational expert, but the exchange also seems to be referring to the Plaintiffs possible return to his original job at the railroad. Id. The Plaintiffs response, aside from being in the negative, is therefore of no value because of the consistent conclusion that the Plaintiff was incapable of returning to his previous type of employment, the recommendation of the consulting experts being that the Plaintiff would onlybe capable of "light work". (R. at 154-155, 269-270, 27-28).
Essentially, therefore, the question of being able to sustain work on a regular and continuing basis was not addressed. Furthermore, much of the evidence in the record focused on the Plaintiffs concentration and ability to maintain attention. Although he did receive a "good" score on those issues from Dr. Pantaze, he was rated "poor to none" in the same categories by Drs. Fletcher and Barth. By his own admission, the Plaintiff spends much of his time watching television (R. at 414). And his mother, Christine Jennings, testified that he was very forgetful and slow when doing activities around their house. (R. at 4384-86). Therefore, the evidence on the state of the present record is insufficient to conclude that the Plaintiff could work on a "regular and continuing basis". Without such a determination by the ALJ of the Plaintiffs ability to work a forty-hour week, or its equivalent as required by SSR 96-8p, a determination of "not disabled" is not supported by the application of the correct legal standard or by substantial evidence in the record.
CONCLUSION
For the foregoing reasons, it is the recommended that the final decision of the Commissioner be VACATED and that it be REMANDED to the SSA for a new hearing consistent with this recommendation.
NOTICE TO PARTIES
Failure to file written objections to the proposed findings, conclusions, and recommendations of the Magistrate Judge contained in the foregoing report within ten (10) days after being served with a copy of this report shall bar you from attacking on appeal the findings and conclusions accepted and adopted by the District Judge except on grounds of plain error.