Opinion
4:01CV3000
October 23, 2001
MEMORANDUM AND ORDER ON REVIEW OF THE FINAL DECISION OF THE COMMISSIONER OF SOCIAL SECURITY
This case is now before me on Robert C. Lacy's Complaint To Review and Set Aside Decision under the Social Security Act and Request for Trial, which is brought pursuant to 42 U.S.C. § 405(g). The plaintiff seeks review of the Commissioner of Social Security's denial of his claim for disability insurance benefits under Title II of the Social Security Act, as amended. See 42 U.S.C. § 401 et seq. In accordance with my order dated March 5, 2001, the parties have submitted briefs in support of their respective positions. Filing 7. The defendant has also filed an answer to the complaint, along with a transcript of the administrative record. Filings 5, 6. After carefully reviewing these materials, I find that the Commissioner's decision must be reversed and the case remanded for further consideration.
I. Background
The plaintiff, born on June 10, 1944, filed an application for disability insurance benefits on October 9, 1997, alleging that he was disabled and unable to work since June 3, 1997. Tr. at 134-136. According to the plaintiff, he is disabled because of a torn rotator cuff in his right shoulder, as well as arthritis in his shoulders, elbows, wrists, and fingers. Tr. at 167. His application was initially denied on November 11, 1997, and his request for reconsideration was denied on May 8, 1998. Tr. at 98-100, 105-106. The plaintiff then requested a hearing before an Administrative Law Judge (hereinafter ALJ). Tr. at 108-109. The ALJ conducted a hearing on December 30, 1998, and, in a decision dated January 25, 1999, concluded that the plaintiff was not entitled to disability insurance benefits. Tr. at 45-95, 17-32. In reaching this decision, the ALJ found, inter alia, the following:
"Tr." refers to the transcript of the administrative record, filing 6.
A discussion of the relevant medical evidence is set forth on page 2-5 of the ALJ's decision. Tr. at 18-21. I will not re-summarize this evidence here.
4. The record establishes that the Claimant has the following medically determinable impairments which have imposed more than slight limitations upon his ability to function: arthralgias/myalgia, early degenerative changes of the right acromioclavicular joint, full thickness tear of the right rotator cuff, and a sleep disorder.
5. While his medically determinable impairments, either singly or collectively, have not revealed the same or equivalent attendant medical findings as are recited in Appendix 1 to Subpart P of the Social Security Administration's Regulations No. 4, they have imposed the following limitations upon his ability to perform basic work-related functions: frequent lifting/carrying in excess of 10 pounds; more than the occasional lifting/carrying of 20 pounds; unlimited use of the upper extremities to push/pull and/or reach overhead; climbing of ladders, ropes, or scaffolds; and working at heights and around heavy, running, dangerous machinery.
6. Notwithstanding such limitations, the Claimant is able to perform his past relevant work as a security guard and vending machine attendant.
7. The Claimant's testimony, when evaluated under 20 C.F.R. § 404.1529, Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir. 1984) and Social Security Ruling 96-7p, was generally credible but does not form the basis for a finding of disability.
8. Accordingly, the Claimant is not disabled, as that term is defined under the Social Security Act, as amended, pursuant to 20 C.F.R. § 404.1520(e).
Tr. at 30-31.
The plaintiff requested that the Appeals Council of the Social Security Administration review the ALJ's decision, but his request was denied by letter dated November 8, 2000. Tr. at 6-8. Thus, the ALJ's decision stands as the final decision of the Commissioner of Social Security. See Tr. at 6.
The plaintiff filed the present action on January 4, 2001, claiming that "[t]he Commissioner's decision is unsupported by substantial evidence." Filing 1 at 3. In his brief, the plaintiff argues the following: (1) the ALJ's credibility finding, combined with the vocational expert's testimony, demonstrate that the plaintiff is, in fact, entitled to an award of benefits; (2) the ALJ used an incorrect legal standard in finding that the plaintiff is able to return to his past relevant work; (3) the vocational expert's testimony on which the ALJ relied to deny the plaintiff's claim was given in response to a legally defective hypothetical question and therefore cannot serve as substantial evidence supporting the ALJ's decision; and (4) the ALJ's decision lacks a legally sufficient analysis of the mental and physical demands of the past work used to deny the plaintiff's claim, and the decision is therefore unsupported by substantial evidence. In terms of relief, the plaintiff requests that I reverse the Commissioner's finding that the plaintiff is not disabled and award the plaintiff benefits. In the alternative, the plaintiff asks that I remand his case for a new hearing.
II. Standard of Review
In reviewing the ALJ's decision to deny disability benefits, I must ascertain "whether there is substantial evidence on the record as a whole to support the [Commissioner's] decision." Hutsell v. Sullivan, 892 F.2d 747, 748-49 (8th Cir. 1989) (citation omitted). Substantial evidence consists of "`more than a mere scintilla,'" and "`means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The ALJ's decision should not be reversed "merely because substantial evidence would have supported an opposite conclusion." Harris v. Shalala, 45 F.3d 1190, 1193 (8th Cir. 1995) (citation omitted). However, the court's review is not simply "a rubber stamp for the [Commissioner's] decision and involves more than a search for evidence supporting the [Commissioner's] findings." Tome v. Schweiker, 724 F.2d 711, 713 (8th Cir. 1984). Accordingly, in analyzing whether existing evidence is substantial, I "`must consider evidence that detracts from the [Commissioner's] decision as well as evidence that supports it.'" Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999) (quoting Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)).
The ALJ is required to follow a five-step sequential analysis in determining whether an individual claimant is disabled. See 20 C.F.R. § 404.1520. The ALJ continues the analysis until either (1) a claimant is found to be "not disabled" at one of the steps, or (2) the claimant is found to be "disabled" at step three or step five. Step one requires the ALJ to determine whether the claimant is currently engaged in any substantial gainful activity. Id. § 404.1520(b). If the claimant is engaged in substantial gainful activity, the ALJ will find that the claimant is not disabled. Id. Step two requires the ALJ to determine whether the claimant has an impairment or a combination of impairments that significantly limits the ability to do basic work activities. Id. § 404.1520(c). "Basic work activities" include, inter alia, walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, seeing, hearing, speaking, and understanding. Id. § 404.1521(b). If the claimant cannot prove such an impairment, the ALJ will find that the claimant is not disabled. Id. § 404.1520(c). Step three requires the ALJ to compare the claimant's impairment or combination of impairments, as the medical evidence alone dictates, to a list of predetermined "disabling" impairments. Id. § 404.1520(d). If the claimant has an impairment that is listed or is equal to a listed impairment, the analysis ends and the claimant is found to be "disabled." Id. If a claimant does not suffer from a listed impairment or its equivalent, the analysis then proceeds to steps four and five. Step four requires the ALJ to determine whether the impairment or impairments prevent the claimant from engaging in past relevant work. Id. § 404.1520(e). If the claimant is able to perform any past relevant work, the ALJ will find that the claimant is not disabled. Id. § 404.1520(e). Step five requires the ALJ to consider the claimant's residual functional capacity, age, education, and past work experience to determine whether the claimant can do any work other than that which the claimant has done in the past. Id. § 404.1520(f). If the ALJ determines that the claimant cannot do such work, the claimant will be found disabled. Id.
III. Analysis A. Credibility Determination
The plaintiff first contends that "[b]ecause of the ALJ's credibility finding and the actual vocational testimony, this matter should be reversed and benefits awarded." Brief in Support of Plaintiff's Position [hereinafter Plaintiff's Brief] at 2. In support of his claim, the plaintiff directs me to the ALJ's findings, in which the ALJ characterizes the plaintiff's testimony as "generally credible." See Tr. at 31, ¶ 7; see also supra at Part I (setting forth several of the ALJ's findings). The plaintiff also directs me to the following passage from the transcript of the plaintiff's December 30, 1998, hearing:
[ALJ]: Another question, if you consider the clamant's [sic] testimony to be credible, do you think that he could do the jobs that you've identified whether it's the semi-skilled jobs or the unskilled jobs?
[Vocational Expert]: Your Honor, taking into consideration the claimant's testimony today, that was presented today, it be [sic] my opinion that he would not be able to perform, perform the positions that have been identified or other positions and this would deal with his physical tolerances which he talked about sitting 20 to 25 minutes at a time. Standing 5 minutes. Walking 15 minutes and lifting up to 1 pound and he also talked about frequent naps throughout the day and even more importantly the inability to repeat activities or to be available on a regular basis to engage in work due to physical problems and symptoms.
Tr. at 94. According to the plaintiff, "[w]hen the ALJ found [the plaintiff's] testimony to be `generally credible' . . . she made this particular part of the [vocational expert's] testimony the controlling part; and that testimony shows that [the plaintiff] is entitled to a finding that he is `disabled' under the Act and entitled to the award of appropriate benefits." Plaintiff's Brief at 3.
In response, the Commissioner first refers me to the ALJ's findings regarding the plaintiff's residual functional capacity (hereinafter RFC). According to the ALJ:
[T]he Claimant possesses the residual functional capacity to lift/carry 20 pounds occasionally and 10 pounds frequently; to sit (with normal breaks and meal period) for 6 hours in an 8-hour work day; to stand/walk (with normal breaks and meal period) for 6 hours in an 8-hour work day; perform tasks requiring frequent climbing of ramps/stairs, balancing, stopping, kneeling, crouching, and/or crawling; and limited use of the upper extremities to perform tasks requiring pushing/pulling or reaching overhead. However, because of his daytime hypersomnolence, the Claimant should avoid working at heights and around heavy, running and dangerous machinery.
Tr. at 29. The Commissioner notes that in reaching her decision, the ALJ observed that while the plaintiff "may have exaggerated his symptomatology and limitations, his testimony . . . was generally credible and consistent with the functional limitations set forth above." Tr. at 30. Thus, the Commissioner contends, "the ALJ clearly did not find that all of Plaintiff's subjective complaints were credible"; rather, "the ALJ explained that Plaintiff's subjective complaints were credible only to the extent included in the RFC." Defendant's Answer Brief [hereinafter Defendant's Brief] at 8. In addition, the Commissioner also notes that the ALJ relied on the following factors to discredit the plaintiff's allegations of debilitating pain: (1) the plaintiff's medical records, which show no significant restrictions imposed by treating physicians and no evidence of any weakness or instability, muscle atrophy, or neurological deficits, but do show that the plaintiff "has full range of motion of [his] spine and, except for decreased range of motion of the right shoulder, he has full range of motion of the upper and lower extremities, bilaterally, as well as good grip and pinch strength"; (2) the plaintiff's reluctance to take prescribed medications and his refusal to proceed with surgical intervention as recommended by one of his physicians; and (3) the plaintiff's ability to pursue "normal daily activities, including routine household chores and personal care, albeit at a slower pace than before his alleged onset date of disability." Tr. at 27, 28. The Commissioner therefore concludes that "the balance of the decision makes clear that the ALJ did not find all of Plaintiff's alleged symptoms credible." Defendant's Brief at 8 (emphasis in original).
An ALJ's credibility determinations are generally entitled to "considerable weight." Barry v. Shalala, 885 F. Supp. 1224, 1242 (N.D.Iowa 1995); see also Delrosa v. Sullivan, 922 F.2d 480, 485 (8th Cir. 1991) ("[B]ecause evidence of pain tends of necessity to be subjective in nature, it is for the ALJ in the first instance to evaluate the credibility to be accorded a claimant's subjective complaints of pain" (citations omitted)); Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000) ("Where adequately explained and supported, credibility findings are for the ALJ to make." (citation omitted)). An ALJ may not, however, disregard a claimant's subjective complaints of pain "solely because of a lack of objective [medical] evidence." Delrosa, 922 F.2d at 485 (citation omitted); see Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). To the contrary, such complaints may be discredited only "if they are inconsistent with the evidence on the record as a whole." Delrosa, 922 F.2d at 485 (citations omitted). In addition, "where an ALJ rejects a claimant's testimony regarding pain, he must make an express credibility determination detailing his reasons for discrediting the testimony." Id. (citations omitted). When making such a determination, the ALJ is guided by the Eighth Circuit's decision in Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984), which requires the ALJ to consider fully all evidence "relating to the claimant's subjective complaints of pain, including the claimant's daily activities; the duration, frequency and intensity of pain; precipitating and aggravating factors; dosage, effectiveness and side effects of medication, and functional restrictions." Id. (citing Polaski, 739 F.2d at 1321-22).
As an initial matter, I agree with the plaintiff that the ALJ's "actual credibility finding" is not consistent with her credibility analysis. Plaintiff's Brief at 3. As the plaintiff notes in his brief, "the ALJ reviews the evidence in a manner suggesting that she was going to find [the plaintiff's] testimony not to be credible," but then "nevertheless concluded that it was in fact `generally credible.'" Id. Furthermore, I am puzzled by the ALJ's express finding that the plaintiff's testimony was "consistent with the functional limitations" set forth above. Tr. at 30. During his hearing, the plaintiff testified that he could sit for a maximum of twenty to twenty-five minutes before his pain would require him to stand. Tr. at 81. With respect to standing, the plaintiff indicated that "[a]fter five minutes, [he's] ready to collapse." Id. The plaintiff also testified that he can walk for about fifteen minutes at a time, covering a distance of about four to six blocks, and lift approximately one pound. Tr. at 82. He specifically noted that he can no longer lift the eight pound weight he has at home. Id. Finally, the plaintiff stated that at times, he has difficulty ascending the stairs leading to his apartment. Tr. at 76 (indicating the severity of his symptoms sometimes prevents him from leaving his apartment because "if [he] get[s] down the stairs, [he] won't be able to get back up . . . the only way [he] can get up the stairs, is to sit on the stairs and back up one at a time to get there"). This testimony is hardly consistent with the ALJ's conclusion that the plaintiff possesses the RFC to lift/carry twenty pounds occasionally and ten pounds frequently; to sit for six hours in an eight-hour workday; to stand/walk for six hours in an eight-hour work day; and to perform tasks requiring frequent climbing of ramps or stairs. See Tr. at 29. Nevertheless, despite these inconsistencies, this is not a case where the ALJ completely ignored her responsibilities under Polaski, as the body of her opinion does refer to some of the Polaski factors. Where the ALJ has "engaged in a proper Polaski analysis," the Eighth Circuit has recognized that "[a]lthough specific delineations of credibility findings are preferable, an ALJ's `arguable deficiency in opinion-writing technique' does not require [reviewing courts] to set aside a finding that is supported by substantial evidence. Carlson v. Chater, 74 F.3d 869, 871 (8th Cir. 1996) (quoting Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992); Benskin v. Bowen, 830 F.2d 878, 883 (8th Cir. 1987)); see also Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000) ("Although specific articulation of credibility findings is preferable, we consider the lack thereof to constitute a deficiency in opinion-writing that does not require reversal because the ultimate finding is supported by substantial evidence in the record." (citation omitted)). I will therefore review the ALJ's credibility analysis to determine whether (1) she "engaged in a proper Polaski analysis," and (2) substantial evidence supports her implicit finding that the plaintiff's testimony regarding his functional limitations and extent of his pain was not credible. See Carlson, 74 F.3d at 871.
As noted above, the Commissioner identifies the following record inconsistencies that the ALJ relied on in discrediting the plaintiff's subjective allegations relating to his pain and functional limitations: (1) the lack of objective medical evidence; (2) the plaintiff's reluctance to take prescribed medications and his refusal to undergo surgery; and (3) the plaintiff's daily activities. See Defendant's Brief at 7-10; Tr. at 27-29; see also Delrosa, 922 F.2d at 485 ("[T]he ALJ may discredit subjective complaints of pain only if they are inconsistent with the evidence on the record as a whole."). In addition, it appears that the ALJ concluded that the plaintiff's prior work record was also inconsistent with the plaintiff's subjective complaints. See Tr. at 28-29; see also Polaski, 739 F.2d at 1322 ("The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant's prior work record . . . ." (emphasis supplied)). After examining each of these alleged inconsistences, I am not persuaded that "they are of such a substantial nature as would support the ALJ's credibility determination." Cline v. Sullivan, 939 F.2d 560, 565 (8th Cir. 1991).
First, with respect to the plaintiff's daily activities, the ALJ determined that "[t]he Claimant is able to function daily in pursuit of normal daily activities, including routine household chores and personal care, albeit at a slower pace than before his alleged onset date of disability." Tr. at 28. The ALJ also noted that the plaintiff (1) "acknowledged a wide range of interests and activities, namely, composing and typing children's stories, composing music, painting occasion cards, sewing clothes, cooking, and playing guitar," (2) is able to "get along with neighbors"; (3) "did not testify to any difficultly in interactions with store clerks or family members"; and (4) "has developed a friendship with a member of the fibromyalgia support group which he attends twice a month." Id. The ALJ, however, did not explain "in what manner [the plaintiff's] daily activities are inconsistent with [his] allegations of pain." Cline, 939 F.2d at 565; see Hall v. Chater, 62 F.3d 220, 223 (8th Cir. 1995) ("The ALJ did list some of [the plaintiff's] activities, but the ALJ did not state how these minor activities showed that [the plaintiff] was not suffering or that he could do a full-time competitive job on an continuing and sustained basis."); Rainey v. Department of Health Human Servs., 48 F.3d 292, 293 (8th Cir. 1995) ("While the ALJ noted some activities in which [the plaintiff] could engage, the ALJ did not indicate how these minor activities were inconsistent with [the plaintiff's] allegation of disabling pain . . . ."). While I would agree that the record supports a conclusion that the plaintiff is able to engage in various activities, the plaintiff testified that because of his constant pain, he is able to perform several of these activities only occasionally, and that he is easily fatigued. Tr. at 69 (stating that although he has tried to heed his doctor's advice to avoid naps, sleep often "just overwhelms [him]" during the day, and he therefore naps, on average, for three hours a day); Tr. at 70 (stating that he is able to write poetry and children's stories only once or twice a week); Tr. at 70-71 (stating that he is able to compose music only about once a week); Tr. at 71 (stating that he gets together with his daughter about once or twice per month); Tr. at 71-72 (stating that he leaves the house about twice a week "[b]asically [for] grocery shopping"); Tr. at 68 (describing his pain as "continuous"); Tr. at 75 (stating that he endures a "constant ache from head to toe," and that "the pain never goes away"); Tr. at 249, ¶ 14 (Interrogatories) (indicating that he works on greeting cards about once a week for twenty to thirty minutes, and that his ability to create these cards "has been greatly limited because of neck, arms and hand and finger pains as well as the problem with sitting for any length of time"); see generally Tr. at 256-277 (Plaintiff's Diary from June to November of 1998) (documenting several daytime naps). The plaintiff also indicated that his pain forces him to perform certain daily tasks "in shifts" or over an extended period of time. Tr. at 69 (stating that it takes about two to three hours "to get motivated" in the morning); Tr. at 78 (stating that it takes about three hours to get ready every morning); Tr. at 79 (stating that he can read for only about fifteen minutes at a time); Tr. at 83 (stating that he can do "spot cleaning . . . a little at a time"); Tr. at 251, ¶ 23 (Interrogatories) (stating that brushing his teeth "is a very painful ordeal MOST of the time," and that "[d]ressing is done in shifts" (emphasis in original)). In short, the record simply does not reflect that the plaintiff is able to perform any of the above activities, except for bathing, without pain.
With respect to bathing, the plaintiff testified as follows: "It generally . . . isn't a problem bathing. It's probably the easiest thing, because I can get in the tub and sit down and relax. It just — I just do it basically a little at a time." Tr. at 78.
In analyzing the plaintiff's daily activities, the ALJ also states the following:
While he testified to using the "hunt and peck" method of typing, reports from the Claimant and excerpts of his journal contained in the evidence of record not only demonstrates he is a fairly good and accurate typist, but he also has the ability to concentrate for extended periods and to organize written material in a succinct, yet descriptive, manner.
Tr. at 28. While I would agree with the ALJ that the plaintiff's journal discounts his allegations regarding his inability to concentrate, the plaintiff's typing abilities do not seem to be inconsistent with his allegations of pain. See Tr. at 73 (stating that because he has "trouble with [his] back and sitting bothers [his] knees and holding [his] arms in [the typing] position is not comfortable," he can sit and type at his typewriter for only five to twenty minutes at a time). Thus, for the reasons outlined above, I fail to see how the plaintiff's modest activities, as described by the ALJ, undermine his credibility regarding his allegations of pain and resulting functional limitations. See Hall, 62 F.3d at 224 ("Of course, the ALJ was not obliged to believe [the plaintiff], but without an express finding that [the plaintiff's] testimony is incredible, with reasons given for the finding, the record does not support the ALJ's finding that [the plaintiff] could perform a full range of sedentary work."); see also id. at 223 ("[The plaintiff] can visit with friends, but that is not much of an indication of what he could do in the workplace."); Burress v. Apfel, 141 F.3d 875, 881 (8th Cir. 1998) ("[T]his court has repeatedly observed that `the ability to do activities such as light housework and visiting with friends provides little or no support for the finding that a claimant can perform full-time competitive work.'" (citations omitted)); Delrosa, 922 F.2d at 485 ("`[A]n applicant need not be completely bedridden . . . to be considered disabled.'" (citations omitted)).
As noted above, the ALJ also discussed prescribed medications and recommended treatments in analyzing the plaintiff's credibility. See Tr. at 27; see also Polaski, 739 F.2d at 1322 (directing ALJ's to consider, inter alia, the "dosage, effectiveness and side effects of medication" in evaluating a claimant's credibility). Noting that the plaintiff was "reluctant to take prescribed medications," the ALJ concluded that "[w]hile such reluctance may be due to side effects experienced when taking some medications, certainly there are agents available which would not cause adverse side effects and would provide some measure of improvement in his alleged level of discomfort.' Tr. at 27. The ALJ, however, does not refer to any medical record, or any other evidence, identifying such "agents." See Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998) ( "Impairments that are controllable or amenable to treatment do not support a finding of disability, and failure to follow a prescribed course of treatment without good reason can be a ground for denying an application for benefits." (emphasis supplied) (citation omitted)); Burnside v. Apfel, 223 F.3d 840, 443-44 (8th Cir. 2000) ("We note that before a claimant is denied benefits because of a failure to follow a prescribed course of treatment an inquiry must be conducted into the circumstances surrounding the failure . . . ."). Furthermore, as the Plaintiff points out in his reply brief, at least one of his treating physicians "does not share the ALJ's optimism concerning the efficacy of prescription pain killers." Reply Brief in Support of Plaintiff's Position [hereinafter Plaintiff's Reply] at 13. According to this physician, "I am not confident that medications are going to be particularly helpful here, although I have suggested that he focus on Tylenol Extra-Strength for pain control. We have also talked about other approaches that might be useful . . . ." Tr. at 304 (Dr. Scott Glickstein). In light of the plaintiff's testimony as to the side effects he experiences with prescribed medications, and the ALJ's failure to explore the circumstances surrounding these alleged side effects, I fail to see how the plaintiff's reluctance to take such medications undermines his credibility regarding his allegations of pain and resulting functional limitations.
In discussing prescribed treatments, the ALJ also noted that the Plaintiff "has declined to proceed with surgical intervention recommended by Dr. McPherson to help alleviate the pain symptoms of the right shoulder." Tr. at 27. Citing the case of Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995), the ALJ then noted that "a Claimant who fails to follow prescribed treatment for a remediable condition which would restore the ability to work, without good reason, is not under a disability." Id.; see also Stout v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993) ("If an impairment can be controlled by treatment or medication, it cannot be considered disabling." (citation omitted)). There is no indication, however, that the recommended surgical treatment would have "remedied" the plaintiff's condition, particularly in light of his complaints of pain throughout his entire body. See Tr. at 75 (stating that he endures a "constant ache from head to toe," and that "the pain never goes away"); Tr. at 245, ¶ 6 (Interrogatories) (indicating that he experiences pain in his "[f]ingers, wrists, arms (from wrists to shoulders), neck, lower back, hips (especially right), upper back (between shoulder blades[)], muscles from above the knee caps up the front of thighs, inside of knees, sometimes the muscle towards the outside of the shin bone, ankles, heels, and toes"); Tr. at 302 (Medical Notes of Dr. Scott L. Glickstein) (noting that the plaintiff reports "pain in virtually all of his joints"). Furthermore, there is evidence suggesting that the plaintiff sought a second opinion regarding the surgical recommendation and that this physician advised against surgery. Tr. at 67 (indicating that a second doctor advised the plaintiff that he did not have a torn rotator cuff "if [his] arm [wasn't] getting stiffer"); Tr. at 340 (Medical Notes of Dr. David G. Rutz) ("Thought he had a torn rotator cuff but he refused surgery as another orthopedic surgeon disagreed."). Thus, in light of the conflicting advice the plaintiff apparently received, it seems to me that his refusal to undergo surgical treatment is, at best, a minuscule factor in undermining his credibility.
The ALJ apparently concluded that the plaintiff's prior work history also discredited his subjective allegations relating to his pain and functional limitations. After noting that the plaintiff had worked at a "variety of part-time jobs" subsequent to the alleged onset date of his disability, the ALJ stated that "[w]hile his job-seeking efforts are admirable, they also establish that he believes he can perform some type of work existing in significant numbers in the national economy." Tr. at 28. Based on the plaintiff's testimony during the hearing, however, it appears that his pain forced him to resign from most of these positions after a short time. See Tr. at 60 (indicating that he could not accept a full-time position as a food demonstrator because he could not handle "standing in one spot six hours a day"); Tr. at 61 (indicating that he had to stop working as a projectionist because the position "required a lot of climbing stairs and [he] couldn't do that"); Tr. at 61-62 (indicating that he did not actually work as a tour guide at Pioneers Park because, during orientation, he learned that he would have to engage in a variety of physical activity that he did not feel he could endure); Tr. at 63-64 (indicating that he worked only two Saturdays as a van driver for the YWCA because he had to work for six-hour blocks of time without a break). The plaintiff also testified that with respect to his then-present employment as a handyman for the City of Lincoln, "[t]here wasn't anything that [he] could do," as "it's just too strenuous." Tr. at 62-63. Finally, the plaintiff stated that in his view, a major hurdle to his employability is his inability to be a "regular reliable employee." Tr. at 83 (explaining that "I might be able to work a couple hours, three or four hours one day and then I'll be out of commission the next two, three days and I don't know of any employer that would be able to handle that"). Given this testimony, and the ALJ's conclusory discussion of the plaintiff's work history, I fail to see how the plaintiff's limited, and, for the most part, unsuccessful attempts at part-time employment since June 3, 1997, demonstrate the plaintiff's belief that "he can perform some type of work existing in significant numbers in the national economy." Tr. at 28.
In his interrogatories, the plaintiff states that he worked for Hammer Residences in August 1997. Tr. at 243, ¶ 2. The ALJ did not, however, explore the circumstances of this employment, and in the interrogatories, the plaintiff indicates that he was merely paid for "Training for Personal Care Attendant." Tr. at 60; Tr. at 243, ¶ 2 (Interrogatories).
Finally, the ALJ also considered "objective medical evidence" in evaluating the plaintiff's credibility. Tr. at 27. After first noting that the plaintiff's "medically determinable impairments could reasonably be expected to produce the type of symptoms" the plaintiff described in his testimony, the ALJ went on to conclude that "[w]ith regard to the `objective medical evidence' . . . the record in this case does not support the Claimant's allegations of debilitating pain, decreased strength in the upper extremities, weakness in the lower extremities, profound fatigue, and deficits in concentration and memory." Tr. at 26-27. The ALJ also noted that "there is nothing in [the] records from treating and/or consulting physicians to suggest that the Claimant is precluded from work activity at all levels of exertional demands." Tr. at 27. Finally, the ALJ refers to the opinion of Ronald M. Bateman, D.O., who, after evaluating the plaintiff in February of 1998, opined as follows: "It appears to me that [the plaintiff's] subjective complaints of pain are quite exaggerated and not substantiated by objective findings. I therefore believe he could work, do ADL's and recreational activities without any restrictions." Tr. at 27 (emphasis supplied) (citing Tr. at 296).
"ADL" is an abbreviation for "activities of daily living." Stedman's Medical Dictionary 28 (27th ed. 2000).
First, with respect to the ALJ's observation that none of the plaintiff's treating or consulting physicians have imposed any significant restrictions, the plaintiff contends that "any such lack in this record simply highlights the ALJ's failure to develop the record fully and fairly by asking, for example, Doctors McPherson, Kathawalla and Rutz, psychologist Lopno and the reviewing physicians to specify or state more precisely the practical effects of the [conditions] which they had diagnosed or noted." Plaintiff's Reply at 11. The Eighth Circuit has recognized that "[a] treating doctor's silence on the claimant's work capacity does not constitute substantial evidence supporting an ALJ's functional capacity determination when the doctor was not asked to express an opinion on the matter and did not do so . . . ." Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001). It seems to me that, by analogy, when a treating physician is not asked to express an opinion as to work restrictions, that physician's silence on such a matter does not constitute an inconsistency that undermines the plaintiff's credibility. See, e.g., Lauer v. Apfel, 245 F.3d 700, 705 (8th Cir. 2001) (concluding that where a treating physician was not asked to express an opinion as to the claimant's ability to engage in work-related activities, "the absence of [such] an opinion does not constitute substantial evidence supporting the ALJ's findings" (citation omitted)). Thus, I agree with the plaintiff that the lack of significant restrictions does not support the ALJ's implicit finding as to credibility.
Next, I turn to what the ALJ characterized as a lack of "objective medical evidence" supporting the plaintiff's allegations of "debilitating pain" and Dr. Bateman's conclusion, based on a lack of objective findings, that the plaintiff's complaints were "quite exaggerated," and that the plaintiff could therefore work without restrictions. See Tr. at 27, 296. As noted above, "an ALJ may not base a denial of benefits solely on a lack of objective medical evidence." Cline, 939 F.2d at 566 (citing Polaski, 751 F.2d at 953; Tome, 724 F.2d at 713); Polaski, 739 F.2d at 1322 ("The adjudicator may not disregard a claimant's subjective complaints solely because the objective medical evidence does not fully support them."). Here, the ALJ "[did] not purport to rely solely on the alleged absence of supportive medical evidence to discredit [the plaintiff's] allegations of pain . . . ." Cline, 939 F.2d at 567. However, given my above findings that the remaining factors relied upon by the ALJ are insubstantial, "the net result of [my] inquiry is that the . . . medical evidence stands alone as a potential justification for the denial of [the plaintiff's] application for benefits." Id. Thus, under Eighth Circuit authority, the ALJ's implicit finding as to credibility must be reversed. See Delrosa, 922 F.2d at 485; Cline, 939 F.2d at 566-67.
The objective medical evidence in this case consists of examination reports and progress notes from several treating physicians as well as reports from consulting physicians. See Tr. at 279-341. As the ALJ correctly notes in her opinion, the medical records and reports show the following: (1) that the plaintiff has full range of motion in his spine (Tr. at 296); (2) that, except for decreased range of motion of the right shoulder joint, the plaintiff has full range of motion of the upper and lower extremities, bilaterally, as well as good grip and pinch strength (Tr. at 296, 298, 303); (3) no evidence of weakness or instability of the lower extremities (Tr. at 303); and (4) no evidence of muscle spasms, muscle atrophy, or neurologic deficits (Tr. at 296, 303). Other records also indicate that (1) the plaintiff suffers from reduced sleep efficiency and severe daytime hypersomnolence, findings that may be consistent with a diagnosis of narcolepsy (Tr. at 295); and (2) the plaintiff has positive abduction impingement arc, some crepitans with rotary-type movements, a positive impingement sign, acromioclavicular joint degenerative changes, and a full thickness rotator cuff tear (Tr. at 306, 298). In addition, an examination in September of 1998 revealed that the plaintiff had some tenderness on palpitation of major muscle masses and multiple trigger points, including the occiput, upper back, both subacromial regions, elbows, wrists, fingers, upper outer legs, low back, medial knees, and ankles. Tr. at 340.
B. Hypothetical Question
The plaintiff also claims that the hypothetical question posed to the vocational expert omitted several impairments that the ALJ found to exist. As a result, the plaintiff argues, the vocational expert's answer to this question does not constitute substantial evidence supporting the ALJ's finding that the plaintiff is able to perform his past relevant work as a security guard and vending machine attendant. Specifically, the plaintiff notes that he testified as to his severe daytime hypersomnolence, difficulty in handling stairs, nervousness in crowds, irritable bowel syndrome aggravated by stress, repeated dropping of objects, walking and standing limitations, and dizziness. See Plaintiff's Brief at 8. The plaintiff contends that because the ALJ expressly found his testimony to be "generally credible," the ALJ should have included these impairments in the hypothetical. See Tr. at 30, 31. In addition, the plaintiff also argues that although the evidence indicates that his reaching is, in fact, limited not just to the overhead area, but in "all directions," the ALJ failed to include this restriction in the hypothetical. See Tr. at 88-89, 315. According to the plaintiff, this omission is prejudicial "because reaching is required frequently in the vending machine maintenance job." Plaintiff's Brief at 9 (citing Dictionary of Occupational Titles 319.464-014). Finally, in his reply brief, the plaintiff also seems to suggest that because the ALJ failed to develop the record with respect to the effects of the plaintiff's impairments, the RFC determination is not supported by substantial evidence. See Plaintiff's Reply at 3 (asserting that "the ALJ fails to identify the `objective medical evidence' upon which her residual functional capacity determinations rely"); id. at 7 (characterizing the ALJ's findings with respect to the plaintiff's sitting and standing tolerances as "conclusory" and unsupported by "substantial evidence"); id. at 11-12 (discussing, in the context of his credibility argument, the ALJ's obligation to develop the record, particularly "where, as here, the central issue is that of the claimant's residual functional capacity" (citation omitted); id. at 18-20 (arguing that the ALJ failed to develop the record with respect to the practical effects of daytime hypersomnolence); id. at 21 (asserting that the ALJ's "incomplete development of the record regarding [the plaintiff's] residual functional capacity prevent[s] the [vocational expert's] testimony from constituting substantial evidence supporting the denial of benefits").
Although I do not specifically reach this particular argument below, I note that the plaintiff's allegations do not appear to have merit. See Plaintiff's Reply at 17-18 (asserting that the two physicians retained by the defendant to review the plaintiff's medical records both concluded that the plaintiff's reaching is limited in "all directions (including overhead)" (citing Tr. at 315, 319)); Tr. at 315 (qualifying the "reaching" restriction and limiting it to "overhead work").
A hypothetical question posed to a vocational expert must "precisely describe the claimant's impairments." Whitmore v. Bowen, 785 F.2d 262, 263 (8th Cir. 1986) (citation omitted); see Newton v. Chater, 92 F.3d 688, 694-95 (8th Cir. 1996) ("A hypothetical question must precisely describe a claimant's impairments so that the vocational expert may accurately assess whether jobs exist for the claimant." (citation omitted)); see also Walters v. Apfel, 998 F. Supp. 1078, 1083 (E.D.Mo. 1998) (finding that "the ALJ could properly use the testimony of a vocational expert at step 4 to determine plaintiff's ability to perform her past relevant work" (citing Haynes v. Shalala, 26 F.3d 812, 815 (8th Cir. 1994) (implicitly approving such a procedure))). Accordingly, "[a]n expert's testimony based upon an insufficient hypothetical question may not constitute substantial evidence to support a finding of no disability." Newton, 92 F.3d at 695 (citation omitted). In order to be deemed "sufficient," the hypothetical "`need only include those impairments that the ALJ accepts as true.'" Johnson v. Chater, 108 F.3d 178, 180 (8th Cir. 1997) (quoting Haynes, 26 F.3d at 815; citing House v. Shalala, 34 F.3d 691, 694 (8th Cir. 1994)); see also Long v. Chater, 108 F.3d 185, 188 (8th Cir. 1997) (providing that the Commissioner, in satisfying its burden under step five, "may pose hypothetical questions to the vocational expert, the parameters of which do not have to include any alleged impairments that the ALJ has rejected as untrue" (citing House, 34 F.3d at 694)).
In this case, the ALJ posed the following hypothetical to the vocational expert:
ALJ: [F]irst of all, if the claimant is restricted to light exertional work and by that I mean if he could occasionally lift and carry 20 pounds and if he could frequently lift or carry 10 pounds. If he could stand with-stand and/or walk with normal breaks for a total of 6 hours out of an 8 hour workday. If he could sit with normal breaks for a total out of 8 hours out of a normal workday. If he could do postural activities on a frequent basis not to exceed 2/3rds of the time and I'm referring to balancing, stooping, kneeling, crouching, crawling, but he should not be in the job that involves ladders, ropes, or scaffolds. If he should not be in the job that avoids — that involves hazards such as dangerous machinery or working at heights and if he should not do overhead work with his right — I believe you are right handed. Are you right handed? Yeah.
As noted below, the restrictions in this hypothetical are based on the Physical Residual Functional Capacity Assessment that was completed and reviewed by physicians retained by Minnesota Disability Determination Services. See Tr. at 312-319. This assessment indicates that the plaintiff can sit, with normal breaks, for a total of about six hours in an eight-hour workday. See Tr. at 313. Thus, it appears the ALJ misstated the physicians' conclusions with respect to the plaintiff's ability to sit. See Tr. at 88; see also Tr. at 89 (response to hypothetical by vocational expert) (repeating restrictions outlined by the ALJ, including "[that the plaintiff could] [s]it up to 8 hours per day").
CLMT: Yes, I am.
ALJ: Okay.
[ALJ]: With his right or dominant arm if he should avoid overhead lifting, would he be able to return to any of [his] past jobs?
Tr. at 88-89. In response, the vocational expert stated that in his opinion, the plaintiff "would be able to perform past relevant work as defined by The Dictionary Occupational Title as a security guard and as a vending machine attendant." Tr. at 89.
I agree with the plaintiff that the above hypothetical is defective and, therefore, does not constitute substantial evidence supporting the ALJ's decision. As an initial matter, I note that if the ALJ determines on remand that the plaintiff's testimony regarding his pain and functional limitations is, indeed, credible, the hypothetical posed to the vocational expert would be deficient, as the limitations included in this hypothetical are clearly inconsistent with the plaintiff's testimony. See Plaintiff's Brief at 8 (listing the various limitations to which the plaintiff testified). Furthermore, even if the ALJ properly discredits the plaintiff's testimony regarding his pain and functional limitations, it seems to me that the hypothetical is fatally flawed, in that it appears to be based on an inadequate RFC assessment.
The ALJ "`bears the primary responsibility for assessing a claimant's residual functional capacity based on all relevant evidence . . . .'" Lauer, 245 F.3d at 703-04 (quoting Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir. 2000)). According to the Eighth Circuit, "a `claimant's residual functional capacity is a medical question.'" Id. (quoting Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000)). Thus, "`some medical evidence' . . . must support the [ALJ's] determination of the claimant's RFC, and the ALJ should obtain medical evidence that addresses the claimant's `ability to function in the workplace.'" Id. (quoting Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir. 2000) (per curiam); Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000)). In addition, "[i]t is the ALJ's duty to develop the record fully and fairly, even in cases in which the claimant is represented by counsel." Bishop v. Sullivan, 900 F.2d 1259, 1262 (8th Cir. 1990) (citation omitted); see also Cunningham v. Apfel, 222 F.3d 496, 502 n. 6 (8th Cir. 2000) ("An ALJ has [a] well-established duty to develop a full and fair record because the hearing is non-adversarial — the goals of the Commissioner and the advocates should be the same: that deserving claimants who apply for benefits receive justice." (citation omitted)).
The limitations outlined in the hypothetical above are based on the Physical Residual Functional Capacity Assessment, which was completed and reviewed by physicians retained by Minnesota Disability Determination Services. Compare Tr. at 312-319 (Physical Residual Functional Capacity Assessment), with Tr. at 88-89 (hypothetical question posed to vocational expert). It does not appear that these physicians examined the plaintiff. See Tr. at 312-319. The only other medical evidence relating to the plaintiff's ability to engage in work-related activities comes from Dr. Bateman, who was apparently a consulting physician. See Tr. at 105 (SSA Notice of Reconsideration) (referring to the "R. Bateman, D.O. — consultative exam of 02/23/98); see also Tr. at 319 (Physical Residual Functional Capacity Assessment) (referring to the "2-23-98 CE [consultative exam]" and the "2-23-98 letter from Dr. McPherson"); Tr. at 296 (Dr. Bateman's Report) (indicating that the examination was done on February 23, 1998, the date of the report). In his report, Dr. Bateman, after examining the patient and reviewing his past records, opined that the plaintiff "could work, do ADL's and recreational activities without any restrictions." Tr. at 296.
On page two of this assessment, a reference is made to an exam conducted on August 11, 1997. Tr. at 313. It appears, however, that this exam was conducted by Dr. Scott McPherson, not the physicians completing the RFC assessment. Compare Tr. at 313, with Tr. at 306.
As a general rule, "even if a consulting physician examines a claimant once, his or her opinion is not considered substantial evidence, especially if . . . the treating physician contradicts the consulting physician's opinion." Lauer, 245 F.3d at 705 (citation omitted); see also Kelley, 133 F.3d at 589 ("The opinion of a consulting physician who examines a claimant once or not at all does not generally constitute substantial evidence." (citation omitted)); O'Leary v. Schweiker, 710 F.2d 1334, 1341 (8th Cir. 1983) ("Because of the interpretive problems inherent in the use of forms such as the physical capacities checklist, our Court has held that while these forms are admissible, they are entitled to little weight and do not constitute "substantial evidence" on the record as a whole." (citations omitted)). Here, as indicated above, the plaintiff's treating physicians were apparently never asked to express an opinion as to the plaintiff's ability to function in the workplace. Because "`the key issue in this case is [the plaintiff's] RFC,'" it seems to me that the ALJ should have sought such opinions. See Nevland, 204 F.3d at 858 (quoting Ford v. Secretary of Health Human Servs., 662 F. Supp. 954, 955 (W.D.Ark. 1987)); see also Naber v. Shalala, 22 F.3d 186, 189 (8th Cir. 1994) ("An ALJ is required to obtain additional medical evidence if the existing medical evidence is not a sufficient basis for a decision." (citing 20 C.F.R. § 416.927(c)(3))); McCoy v. Schweiker, 683 F.2d 1138, 1147 n. 8 (8th Cir. 1982), abrogated on other grounds, 524 U.S. 266 (1998) (recognizing that "fairness dictate[s] that a claimant's treating physician be afforded an equal opportunity to address key issues with that of the [Commissioner's] physician" (citing Woodard v. Schweiker, 668 F.2d 370, 374 (8th Cir. 1981)); Woodard, 668 F.2d at 374 (concluding that in light of the ALJ's "`duty to fairly and fully develop the matters at issue[,] . . . it was incumbent on the ALJ to give both side's doctors an opportunity to specifically address the key question at issue" (note omitted)); Miller v. Heckler, 756 F.2d 679, 681 (8th Cir. 1985) (same). Thus, in light of the ALJ's failure to develop the record fully and fairly with respect to the effects of the plaintiff's impairments, I find that the RFC determination is not supported by substantial evidence. See, e.g., Battles v. Shalala, 36 F.3d 43, 45 (8th Cir. 1994) ("`There is no bright line test for determining when the [ALJ] has . . . failed to develop the record. The determination in each case must be made on a case by case basis.'" (quoting Lashley v. Secretary of Health Human Serv., 708 F.2d 1048, 1052 (6th Cir. 1983)). Since the vocational expert's testimony was based on this determination, I also find that his testimony was not substantial evidence that the plaintiff could perform his past relevant work as a security guard and vending machine attendant. See Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999).
In Nevland, "[t]he ALJ relied on the opinions of non-treating, non-examining physicians who reviewed the reports of the treating physicians to form an opinion of [the plaintiff's] RFC." Nevland, 204 F.3d at 858. After noting that "there [was] no medical evidence about how the [plaintiff's] impairments affect his ability to function now," the Eighth Circuit stated the following: "In our opinion, the ALJ should have sought . . . an opinion from [the plaintiff's] treating physicians [as to the plaintiff's RFC] or, in the alternative, ordered consultative examinations . . . to assess [the plaintiff's] mental and physical residual functional capacity." Id. (emphasis in original); see also Delrosa, 922 F.2d at 485 ("To the extent that the ALJ questioned the existence of [the plaintiff's] diagnosed mental condition, we believe that prevailing case law required the ALJ, at a minimum, to order a consultative psychiatric examination." (emphasis supplied) (note and citations omitted)). Here, a consultative examination was apparently ordered. See Tr. at 296 (Dr. Bateman's Report); Tr. at 105 (SSA Notice of Reconsideration) (referring to a consultative examination performed by Dr. Bateman). Nevertheless, in light of the additional authority cited below, as well as the discrepancies between Dr. Bateman's RFC "assessment" and the RFC determination made by two other physicians retained by Minnesota Disability Determination Services, it seems to me that the ALJ should have sought opinions from the plaintiff's treating physicians. See Tr. at 296 (Dr. Bateman's Report) (concluding that the plaintiff "could work . . . without any restrictions"); Tr. at 312-319 (Physical Residual Functional Capacity Assessment) (concluding that the record established various exertional, postural, manipulative, and environmental limitations).
C. Conclusion
As discussed above, the ALJ's implicit finding as to credibility cannot stand. Recognizing that "`questions of fact, including the credibility of a claimant's subjective testimony, are primarily for the [Commissioner] to decide, not the courts," I am persuaded that remand, rather than a judgment awarding benefits, is the appropriate remedy in this case. See Trew v. Shalala, 861 F. Supp. 860, 870 (D.Neb. 1994); see also Callison v. Callahan, 985 F. Supp. 1182, 1188 (D.Neb. 1997) (concluding that "where [it] cannot be state[d] with certainty that benefits must be awarded under any conceivable circumstance," remand was appropriate). Because I have also determined that substantial evidence does not support the ALJ's finding regarding the plaintiff's ability to perform his past relevant work, I will not address the remaining two arguments raised by the plaintiff, as both of these arguments relate to step four of the sequential analysis followed by the ALJ. See Plaintiff's Brief at 4-8 (asserting that during step four of her analysis, the ALJ erroneously held the plaintiff to a higher evidentiary standard than the regulations require and effectively shifted the Commissioner's burden to the plaintiff); id. at 9-12 (asserting that "[b]ecause the ALJ's decision contains no explicit findings of the actual mental and physical demands of [the plaintiff's] past work as a vending machine attendant or security guard, step 4 of his claim has not yet been adjudicated in a way which would survive appellate review; nor is there any substantial evidence to sustain the denial at that step").
IT IS ORDERED that the decision of the Commissioner is reversed, and the case is remanded to the Commissioner for further consideration in accordance with this memorandum and order. Specifically, the Commissioner is to reconsider the plaintiff's credibility and redetermine whether the plaintiff can perform the work of a security guard and vending machine attendant.
JUDGMENT
In accordance with the Memorandum and Order on Review of the Final Decision of the Commissioner of Social Security:
IT IS ORDERED that the decision of the Commissioner is reversed, and the case is remanded to the Commissioner for reconsideration of the plaintiff's credibility and for a redetermination of whether the plaintiff can perform the work of a security guard and vending machine attendant.