Opinion
NO. 1:00-CV-68
December 13, 2002
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 42 U.S.C. § 405(g), plaintiff seeks judicial review of the Commissioner of Social Security Administration's ("Commissioner") decision denying benefits. Plaintiff claims disability based on neck and back pain and depression, with an onset date of January 20, 1994. The Commissioner found that plaintiff was not disabled and denied her application for benefits. Plaintiff contests the Commissioner's decision by asserting that the Administrative Law Judge ("ALJ") erred in finding that she was not disabled.
This case is referred to the undersigned United States Magistrate Judge for review, hearing if necessary, and submission of a report with recommended findings of fact and conclusions of law. See 28 U.S.C. § 636(b)(1)(B) and Local Rules for the Assignment of Duties to United States Magistrate Judges. Jurisdiction is invoked pursuant to 42 U.S.C. § 405(g).
I. JUDICIAL REVIEW
The court's role is to determine whether the Commissioner applied the proper legal standards and whether the decision is supported by substantial evidence. See Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).
Substantial evidence is more than a scintilla, but less than a preponderance, Anthony v. Sullivan, 954 F.2d at 292; it requires evidence relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1427 (1971); Marcello v. Bowen, 803 F.2d 851, 853 (5th Cir. 1986) (citing Jones v. Heckler, 702 F.2d 616, 620 (5th Cir. 1983). The evidence must be "enough to justify, if the trial were submitted to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." National Labor Relations Bd. v. Columbian Enameling Stamping Co., 306 U.S. 262, 299-300, 59 S.Ct. 206, 217 (1939), cited in Harvey L. McCormick, Social Security Claims and Procedures § 672, at 193 n. 1 (4th ed. 1991).
To determine whether substantial evidence exists to support the ALJ's findings, the entire record must be scrutinized carefully. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. denied 514 U.S. 1120, 115 S.Ct. 1984 (1995); Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983). The court in reviewing the record should not, however, proceed to reweigh the evidence or review the ALJ's decision de novo. Haywood v. Sullivan, 888 F.2d 1462, 1466 (5th Cir. 1989); Neal v. Brown, 829 F.2d 528, 530 (5th Cir. 1987). Rather, it is for the Commissioner to weigh the evidence and to resolve any conflicts. See Anthony v. Sullivan, 954 F.2d at 295; Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir 1990). If supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co., 305 U.S. at 230, 59 S.Ct. at 217); see also, 42 U.S.C. § 405(g).
II. ELIGIBILITY STANDARDS
Plaintiff applied for both Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). DIB and SSI are separate and distinct programs established in and governed by the Social Security Act. See Social Security Administration, Social Security Handbook, § 500(A)-(B) (14th ed. 2001).
Although the two types of benefits serve different purposes, an applicant seeking benefits under either program must prove disability within the meaning of the Social Security Act, which defines disability in virtually identical language for both programs. See 42 U.S.C. § 423(d) and 42 U.S.C. § 1382c(a)(3). Moreover, "[t]he law and regulations governing the determination of disability are the same for both disability insurance benefits and SSI." Greenspan v. Shalala, 38 F.3d 232 (5th Cir. 1994).
The DIB program provides income to individuals who are forced into involuntary, premature retirement, provided they are insured and disabled, regardless of indigency. See 42 U.S.C. § 423(a); see also Mathews v. Castro, 429 U.S. 181, 186 (1976). DIB is authorized by Title II of the Social Security Act and funded by Social Security taxes. See Social Security Administration, Social Security Handbook, § 2100 (14th ed. 2001).
The SSI program is a general public assistance measure that provides an additional resource to the aged, blind, and disabled to assure that their income does not fall below the poverty line. Eligibility for SSI is based upon indigency as well as disability, regardless of insured status. H.R. Rep. No. 92-231, (1972), reprinted in 1972 U.S.C.C.A.N. 4989, 5132-5133. SSI is authorized by Title XVI of the Social Security Act and funded by general tax revenues. See Social Security Administration, Social Security Handbook, § 2100 (14th ed. 2001).
Eligibility for benefits requires proof of disability. A qualifying disability is inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A), 1382c(3)(A). A claimant is disabled "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A), 1382c(3)(B).
III. VOCATIONAL AND FACTUAL BACKGROUND
Plaintiff is a high school graduate whose work history is varied. Her most recent job was cashier at Petro Truck Stop in Beaumont, Texas, where she suffered an injury on December 30, 1993. As a result of that injury, plaintiff suffers low mechanical back pain, depression, and nervousness. Pl.'s Br. at Statement of Case.
The term "body mechanics" is defined as "the application of kinesiology to use of the body in daily life activities and to the prevention and correction of problems related to posture." Dorland's Illustrated Medical Dictionary, 29th Ed.
IV. PROCEDURAL BACKGROUND
Plaintiff filed an application for disability insurance benefits and Supplemental Security Income on March 1, 1994. Tr. 28-35. Upon its denial, she requested and was granted a hearing before an administrative law judge ("ALJ"), Paul Schwarz. That hearing was conducted on April 23, 1996, and ALJ Schwarz's decision denying benefits was issued on September 19, 1996. Appeals Council granted plaintiff's request for extension of time to seek review and also received new evidence proffered by plaintiff. Tr. 9. Ultimately, on November 26, 1999, the Appeals Council upheld ALJ Schwarz's decision (Tr. 4-5). Plaintiff timely filed the instant appeal in federal court on January 25, 2000.
V. EVIDENCE IN ADMINISTRATIVE RECORD
The administrative record contains a vast array of evidence of the type customarily produced in proceedings involving disability claims based on multiple physical, mental, and sensory impairments. Plaintiff's mental impairments (depression) were evaluated by a consulting psychiatrist Dr. Victor M. Fermo, M.D., a consulting physician Frank W. Zimmerman, M.D., and various diagnostic and counseling personnel from Life Resource, Texas Department of Mental Health and Mental Retardation ("Life Resource"). Plaintiff's physical impairments (neck and mechanical back pain) were evaluated by treating physicians, John Baker, M.D., physicians at University of Texas Medical Branch ("UTMB") Pain Clinic in Galveston, Texas, and physicians at St. Elizabeth Hospital Family Practice Center in Beaumont, Texas, Melanie Carreon, M.D., and Paul Guttuso, M.D. Finally, these physical impairments were evaluated radiologically by William Cook, M.D., who performed an MRI on January 21, 1994, and by James D. King, M.D., of Outpatient Diagnostic Center in Beaumont, Texas, who performed a second MRI on August 5, 1996.
"A medical consultant is a person who is a member of a team that makes disability determinations in a State agency, as explained in § 404.1615, or who is a member of a team that makes disability determinations for us when we make disability determinations ourselves." 20 C.F.R. § 404.1616(a) (2002).
A medical consultant must be "a licensed physician (medical or osteopathic), a licensed optometrist, a licensed podiatrist, or a qualified speech-language pathologist. . . . [and] must meet any appropriate qualifications for his or her specialty as explained in § 404.1513(a)." 20 C.F.R. § 404.1616(b) (2002)
MRI is an initialism for magnetic resonance imaging. Dorland's Illustrated Medical Dictionary, 29th Ed.
The remainder of the administrative evidentiary record consists of (a) plaintiff's testimony regarding the disabling nature of her physical pain and effects of depression, (b) testimony of a medical expert, Lloyd C. Jones, M.D., who testified that neither plaintiff's physical impairments nor her mental impairments equal or exceed severity of impairments the Commissioner's "Listing of Impairments" published in 20 C.F.R. Subpt. P, Appendix 1, and (c) testimony of a vocational expert ("VE"), Lorie McQuade-Johnson, who testified that a person with plaintiff's residual functional capacity could perform past relevant work as a cashier.
A medical advisor, at the request of the Social Security Administration, is asked to review the claimant's medical records and then give an expert opinion as to the extent of claimant's impairment. See 20 C.F.R. § 404.1527(f)(2)(iii) (2002). When a medical professional functions as an expert witness rather than an advisor in the course of an administrative law judge hearing, Social Security Ruling 96-6p designates such professional as a "medical expert." Social Security Ruling 96-6p, 1996.
In the instant case, the ALJ refers to Dr. Jones as a "medical expert."
Whether or not a claimant's impairments meet or exceed those published in the Commissioner's listings is relevant to whether disability can be presumed at the third step of the Commissioner's five-step evaluation process. See Section VI, below.
Vocational Experts are utilized by the ALJ to "assess whether jobs exist for a person with the claimant's precise abilities." Gilliam v. Califano, 620 F.2d 691 (8th Cir. 1980). A VE's testimony must: (1) assess the effect of any limitation on the range of work at issue; (2) advise whether the impaired person's residual functional capacity permits him or her to perform substantial numbers of occupations within the range of work at issue; and, (3) identify jobs if they exist and provide a statement of the incidence of such jobs in the region in which the person lives. See Ellison v. Sullivan, 921 F.2d 816 (8th Cir. 1990).
VI. SEQUENTIAL EVALUATION PROCESS
The law requires, in every case, that the Commissioner determine whether the claimant has a disability. See Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952 (1983). The Commissioner utilizes a five-step sequential evaluation analysis to aid in determining when claimants are disabled. See 20 C.F.R. § 404.1520. This procedure has judicial approval as a fair and just way for determining disability applications in conformity with the Social Security Act. See Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 2297 (1987) (citing Heckler v. Campbell, 461 U.S. at 461, 103 S.Ct. at 1954) (The use of the sequential evaluation process "contribute[s] to the uniformity and efficiency of disability determinations").
The five steps are as follows:
The Commissioner ascertains whether the applicant is currently engaging in substantial gainful activity. If so, a finding of non-disability is entered and the inquiry ends.
The Commissioner determines if the applicant's impairment or combination of impairments is severe, that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities. If not, the inquiry ends and a finding of non-disability is entered.
The Commissioner determines whether the severe impairment equals or exceeds those in the Listing of Impairments, 20 C.F.R. Subpt. P, Appendix 1 ("the Listings"). If so, disability is presumed and benefits are awarded.
The Commissioner determines whether the impairment prevents the individual from engaging in his regular previous employment. If so, a prima facie case of disability is established and the burden of going forward (to the fifth step) shifts to the Commissioner. See Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987).
The Commissioner determines whether other work exists in the national economy which the applicant can perform. If the Commissioner establishes that an applicant can perform alternative employment, the burden shifts back to the applicant to show he cannot perform the alternative labor. See Id.; Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986); 20 C.F.R. § 404.1520(a)-(f).
In conjunction with steps four and five determinations, the Commissioner utilizes a residual functional capacity ("RFC") assessment. That is, the Commissioner decides whether the applicant, notwithstanding severe impairment, has the physical and mental ability to perform activities generally required by competitive, remunerative work. See 20 C.F.R. § 404.1545; Social Security Ruling 96-8p, 61 F.R. 34474 (July 2, 1996). The Commissioner assesses the applicant's physical, mental, and sensory abilities, evaluates how they apply to the applicant's work-related functioning, and finally considers whether the applicant can sustain work-related activities in a work setting on a regular and continuing basis. Id. Thereafter, the Commissioner determines if claimant has the physical and mental abilities to perform past relevant work. See Chaparro v. Bowen, 815 F.2d at 1010. If the applicant's RFC meets or exceeds the requirements of regular previous employment, the disability claim is denied. See 20 C.F.R. § 404.1561. If not, however, the inquiry proceeds to step 5 where the Commissioner has the burden to show that the applicant can do work as it is generally performed in the national economy. See Chaparro v. Bowen, 815 F.2d at 1010; 20 C.F.R. § 404.1566.
Residual functional capacity is defined as "what you can still do despite your limitations." 20 C.F.R. § 404.1545(a). It has three components: physical abilities, mental abilities, and other abilities affected by impairments. See 20 C.F.R. § 404.1545(a).
VII. COMMISSIONER'S BURDEN AT STEP FIVE
At the fifth step, the Commissioner's burden is to establish that an applicant can perform available, alternative employment. Having determined the applicant's residual functional capacity, the Commissioner often consults the "Medical Vocational Guidelines," commonly called "the grids." The grids are a matrix of general findings, established by rule, as to whether work exists in the national economy that a person can perform, taking into account age, education, work experience, and residual functional capacity.
The Medical-Vocational Guidelines consist of three tables (for sedentary, light, and medium work) which may be consulted following a determination of claimant's residual functional capacity. The tables direct conclusions of disability or non-disability based upon claimant's age, education, and previous work experience. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, §§ 201-03 (2000).
When individual factors for a particular applicant are compared to the general findings in the grids, the Commissioner determines whether alternative work that the particular applicant can perform exists in the national economy. When a claimant suffers only from exertional impairments and an ALJ's findings of residual functional capacity, age, education, and previous work experience coincide with the grids, the Commissioner may rely exclusively on the grids to determine whether work exists in the national economy which claimant can perform. 20 C.F.R. § 404.1569a(b). If the grids produce a finding that substantial jobs are not available, the application for benefits is approved. Conversely, if the grids produce a finding that such jobs are available, the application is denied. Use of the grids does not violate the Social Security Act and is judicially approved as a fair and just method of determining disability. See Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952 (1983) (concluding that the use of occupational grids is not violative of the Social Security Act and stating that "[t]his type of general factual issue may be resolved as fairly through rulemaking as by introducing the testimony of vocational experts at each disability hearing").
Exertional impairments "affect only . . . ability to meet strength demands of jobs (sitting, standing, walking, lifting, carrying, pushing, and pulling)." 20 C.F.R. § 404.1569a(b).
VIII. ADMINISTRATIVE DECISION
Following the sequential evaluation process described in the preceding section, ALJ Schwarz made the following findings:
Step 1: Plaintiff has not engaged in substantial gainful activity since onset date. Tr. 20, Finding 2.
Step 2: Plaintiff has severe impairments of lower mechanical back pain and depression. Tr. 20, Finding 3.
Step 3: None of plaintiff's "impairments, either individually or in combination, are attended by clinical or laboratory findings which are the same as, or equivalent to, the medical criteria specified for any impairment listed in Appendix 1 to the Regulations." Tr. 20, Finding 4.
Step 4: (a) Plaintiff has residual functional capacity "to perform a limited range of light work restricted to (sic) her inability to crawl; crouch; work at exposed heights such as scaffolding; climbing no more than two steps on a vertical ladder; and stooping and bending on an occasional basis (occasional defined as no more than one-third of an 8-hour workday)." Tr. 20, Finding 6.
(b) Plaintiff "can perform her past relevant work as a head cashier." Tr. 20, Finding 7.
Because the ALJ found plaintiff capable of performing her past relevant work at Step 4 of the sequential analysis, the inquiry ended, and plaintiff was determined to be not disabled and ineligible for benefits.
VIII. PLAINTIFF'S POINTS OF ERROR; COMMISSIONER'S RESPONSES
Plaintiff asserts five points of error that are reprinted verbatim in the note. Close reading of plaintiff's brief reveals that plaintiff argues a sixth point. For analytical convenience, these six points are rephrased and categorized as follows:
Verbatim, plaintiff's points of alleged error are as follows:
A. The Administrative Law Judge failed to properly consider the plaintiff's mental impairment.
The Administrative Law judge included a doctor that was not at the hearing and relied in part on his decision on his statement.
The Administrative Law Judge failed to consider the record as a whole particularly in regard to the plaintiff's back pain.
The Administrative Law Judge relied on the listing to the exclusion of other methods of determining disabilities.
The Administrative Law Judge erroneously states this claimant can do substantially all physical requirements of "light work."
Pl.'s Br. at Issues.
The ALJ committed errors of law:
by failing to consider plaintiff's mental impairment;
by relying on a medical expert who is not a psychologist; and
by relying on the Listings to the exclusion of other methods of determining disability, specifically Medical-Vocational Guidelines.
The Commissioner's decision is not supported by substantial evidence in that the ALJ:
relied on a medical expert who did not testify at the hearing;
failed to consider the record as a whole regarding back pain; and
erroneously found that plaintiff can perform substantially all requirements of light work.
Pl.'s Br. at Issues.
Regarding the alleged legal errors, the Commissioner responds that ALJ Schwarz obviously considered plaintiff's mental impairments because he completed a Psychiatric Review Technique Form as required by the regulations and found plaintiff's mental impairment to be severe. The Commissioner further argues that ALJ's determination that plaintiff's mental impairments are not disabling is supported by substantial evidence. Second, the Commissioner argues that it was not error for a medical doctor — rather than a qualified psychologist — to offer an expert opinion as to whether a claimant's mental impairment meets or exceeds requirements of listed impairments. Finally, the Commissioner argues that the ALJ was not required to consult the Medical-Vocational Guidelines (grids) to determine disability because the grids are relevant only at Step 5. Deft.'s Br. at III.C.
20 C.F.R. § 404.1520a and 416.920a (2002).
Regarding the substantial evidence points, the Commissioner asserts generally that substantial evidence supports the Commissioner's decision. Regarding ALJ Schwarz's reference to physicians who did not testify, the Commissioner argues that the references were typographical mistakes. Second, the Commissioner argues that ALJ Schwarz's determination reflects that he considered all medical evidence, testimony of the medical expert, and plaintiff's subjective complaints regarding back pain. She argues that ALJ Schwarz acted within his discretion in finding plaintiff's back pain not disabling because the medical evidence shows that plaintiff was treated conservatively for mechanical low back pain. Finally, the Commissioner disputes plaintiff's assertion that ALJ Schwarz found that plaintiff's residual functional capacity allows her to perform substantially all requirements of light work. Rather, the Commissioner states that ALJ Schwarz's RFC finding was that plaintiff's ability to perform light work is limited. Deft.'s Br. at III.A.
IX. DISCUSSION AND ANALYSIS
Plaintiff's points of error are addressed in the order listed above:
A. Did the ALJ fail to consider plaintiff's mental impairment?
Both the Social Security Act and the Commissioner's implementing regulations impose on administrative law judges who adjudicate claims the duty to fully and fairly develop facts relevant to a claim for benefits. Kane v. Heckler, 731 F.2d 1216, 1219-1220 (5th Cir. 1984); 42 U.S.C. § 405(g); 20 C.F.R. § 410.640 (2002). An administrative law judge's failure to carry out this duty constitutes a legal error that precipitates a decision not informed by sufficient facts. Consequently, a decision so tainted is also considered unsupported by substantial evidence. James v. Bowen, 793 F.2d 703, 704 (5th Cir. 1986); (quoting Kane v. Heckler, 731 F.2d at 1219); see also Brock v. Chater, 84 F.3d 726 (5th Cir. 1996); Davis v. Califano, 599 F.2d 1324 (5th Cir. 1979); McGee v. Weinberger, 518 F.2d 330 (5th Cir. 1975).
Here, however, the record reflects that ALJ Schwarz considered evidence regarding plaintiff's mental impairments. First, he completed and included in the record the Psychiatric Review Technique Form required by regulations. Specifically, he found that plaintiff's subjective complaints (crying spells, outbursts of anger, hallucinations) were "not so corroborated in severity, duration and intensity as to support a finding of total disability as claimant alleged." Tr. 18. He further found that "claimant's depression does not appear to significantly restrict he[r] (sic) activities of daily living or present difficulties in maintaining social functioning. This mental impairment has not resulted in frequent deficiencies of concentration, persistence or pace and she has had no episodes of deterioration or decompensation in work or work-like setting." Tr. 19.
Plaintiff's brief does not identify any mental impairment evidence overlooked and not considered either by ALJ Schwarz or the Appeals Council. Neither does the brief argue that the Commissioner's decision regarding mental impairments is not informed by sufficient facts. The court's independent review fails to disclose any mental impairment evidence not considered. This point, therefore, lacks merit.
ALJ Schwarz based his findings on reports from Dr. Fermo and Dr. Zimmerman, testimony of plaintiff and ME testimony. The record contains no medical evidence that plaintiff's depression rises to the level of a disabling condition. Apart from examination by Dr. Fermo as part of the state agency determination, evidence before the ALJ does not indicate that plaintiff sought treatment for mental impairment, and plaintiff denied that she had never been hospitalized for psychiatric treatment. Tr. 129. Physicians at UTMB prescribed Elavil "to give pain relief and help with depression" (Tr. 186) but otherwise referred plaintiff for pain management rather than psychiatric treatment. The record does not indicate that she complained to physicians at UTMB of hallucinations caused by her medication. To the contrary, she reported positive results from Elavil. Tr. 179, 186.
Did ALJ err when relying on medical doctor's expert opinion instead of a qualified psychologist's opinon?
As noted in an earlier section, ALJ Schwarz received and relied upon a medical expert, Lloyd C. Jones, M.D., to state an opinion as to whether plaintiff's mental impairments meet or exceed any of the Listings' mental impairments from which disability is presumed. Plaintiff contends that applicable regulations require that such opinion be stated by a qualified psychologist rather than a physician. Thus, ALJ Schwarz should have used a psychological consultant to determine the severity of plaintiff's mental impairment, and his failure to do so constituted legal error. Pl.'s Br. at Argument.
Generally, substantive regulations have the force and effect of law, and always bind private parties and the government. Moreover, they are binding on federal courts when authorized by and consistent with the statute they implement, properly promulgated, and "not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A), (C); see Chrysler Corp. v. Brown, 441 U.S. 281, 295-96 (1979); Batterton v. Francis, 432 U.S. 416, 425 (1977). Consequently, if ALJ Schwarz ignored or violated an applicable regulation when making his Step 3 determination, he committed error of such magnitude that his decision must be regarded as tainted by failure to apply proper principles of law.
Substantive or legislative regulations are rules that "affect the rights of individuals," or have a substantive impact on the public. Morton v. Ruiz, 415 U.S. 199, 235 (1974). In contrast, interpretive rules and general statements of policy do not have the force and effect of law. See Chrysler Corp. v. Brown, 441 U.S. 281, 295-96 (1979); Batterton v. Francis, 432 U.S. 416, 425 (1977).
On this point, plaintiff cites and relies upon 42 U.S.C.A. § 404.1616, which is non-existent. The court presumes that plaintiff intended instead to cite 20 C.F.R. § 404.1616, which reads as follows:
"Medical consultants who are not physicians are limited to evaluating the impairments for which they are qualified . . . [and] are limited . . . when they may serve as a member of a team that makes a disability determination [to cases that involve their specialty]. . . . In all other cases, a physician will be a member of the team that makes a disability determination except in cases in which this function may be performed by a psychological consultant."20 C.F.R. § 404.1616(c) (2002) (italics added).
Plainly, this regulation expresses a general preference that physicians always serve as medical experts. However, it permits qualified non-physicians to serve as such, but only in the fields of their expertise. But nowhere does the regulation or jurisprudence exclude physicians or designate psychologists as exclusive medical advisors when mental impairments must be evaluated. Thus, this regulation does not require that expert testimony regarding mental impairments must be proffered by psychologists.
Plaintiff's second point of error lacks merit.
Did ALJ err in not consulting the grids?
As described earlier, the Commissioner's evaluation process involves potentially five steps. Those steps are sequential, meaning that a decision can be made at any step, depending on how it is determined. An ALJ addresses the next step only if a decision is not reached at an earlier step. For example, if an ALJ determines at the first step that an applicant currently is engaging in substantial gainful employment, the inquiry ends, and the application is denied.
When the evaluation process proceeds through all five steps, it means that (a) the applicant has established a prima facie case of disability, and (b) the burden has shifted to the Commissioner to show that the applicant can perform alternative employment. At that point, the Commissioner's regulations permit an ALJ to consult the grids in many instances for an administrative determination of disability vel non.
In the present case, ALJ Schwarz determined at Step 4 of the Sequential Evaluation Process that plaintiff is capable of performing her past relevant work as a cashier. Thus, the inquiry never reached Step 5, and resort to the grids became a moot issue. Plainly, ALJ Schwarz was not obligated to consult the Medical-Vocational Guidelines (grids) to determine disability status. Therefore, plaintiff's third point — that the ALJ should have consulted Rules 200.00(e)(2) and 201.00(h) of Medical-Vocational Guidelines — is without merit.
Did ALJ rely on evidence not presented at hearing?
Plaintiff argues that ALJ Schwarz's decision indicates that he relied on evidence not presented at the hearing. Specifically, the decision refers to medical expert "Dr. Duran" (Tr. 16), and the transcription of the hearing refers to "Dr. Johns" (Tr. 304), neither of whom testified.
Obviously, a decision based on evidence not presented cannot be considered as supported by substantial evidence. However, a fair reading of the record does not indicate that ALJ Schwarz relied on extrinsic evidence from physicians with surnames "Duran" and "Johns." Rather, it is clear that ALJ Schwarz relied on the medical expert testimony of Lloyd C. Jones, M.D., whom he misidentified as "Dr. Duran" and whom the transcriber misidentified as "Dr. Johns." The reference to "Dr. Johns" appears to be a typographical error, while the unexplained reference to "Dr. Duran" occurred only once and in a paragraph in which he otherwise correctly identified Dr. Jones as the medical expert, and accurately recounted Dr. Jones's testimony. See Tr. 324-25.
Plaintiff's fourth point of error is without merit.
Did the ALJ fail to consider the record as a whole regarding back pain?
The entirety of plaintiff's argument regarding this point of error is as follows:
"Had he looked at any part of the record, it clearly shows that the plaintiff had suffered for some time. She has suffered from back pain since the injury on December 30, 1993."
Pl.'s Br. at Argument.
Plaintiff does not otherwise indicate how she believes ALJ Schwarz erred in his consideration of the record regarding plaintiff's back pain. Consequently, this point presents nothing meaningful to review. At best, it is tantamount to an invitation for the court to simply weigh the evidence de novo and reach a decision different from the Commissioner's. As noted at the outset, the court lacks such authority given the limited nature of judicial review.
The court's independent review fails to disclose any hint that ALJ Schwarz failed to look at any part of the record regarding back pain. Rather, he specifically discussed plaintiff's subjective complaints of pain. He concluded that "objective medical evidence of record reveals that the claimant has been found to be neurologically normal with good strength and range of motion in all extremities." Tr. 18. He further stated that plaintiff's usage of pain medication "does not substantiate the severe, ongoing pain which the claimant alleges." Tr. 18. He developed an administrative record regarding plaintiff's treatment, pain medications, plaintiff's own testimony, and radiological evidence. In sum, the record appears fully developed, thoroughly examined and the subject of a principled decision.
Plaintiff's fifth point of error lacks merit.
Did the ALJ erroneously conclude that plaintiff can perform substantially all physical requirements of light work?
When determining an applicant's residual functional capacity for work existing in the national economy, the Commissioner considers physical exertional requirements of various jobs, and utilizes classifications of "sedentary, light, medium, heavy and very heavy." 20 C.F.R. § 404.1567 (2002). The Commissioner ascribes the same definitions to these categories as they have in the Dictionary of Occupational Titles published by the United States Department of Labor.
ALJ Schwarz's determination regarding plaintiff's residual functional capacity was as follows:
Plaintiff has residual functional capacity "to perform a limited range of light work restricted to (sic) her inability to crawl; crouch; work at exposed heights such as scaffolding; climbing no more than two steps on a vertical ladder; and stooping and bending on an occasional basis (occasional defined as no more than one-third of an 8-hour workday)."
Tr. 20, Finding 6. ALJ Schwarz then compared plaintiff's RFC with the demands of her past relevant work, and concluded that she remains capable of performing her past work as a cashier. Consequently, the application was denied.
The focus of plaintiff's point of error is nebulous. Construed literally, it clearly is misdirected. ALJ Schwarz did not, as argued by plaintiff, find that plaintiff has residual functional capacity for "substantially all physical requirements of `light work.'" Neither did ALJ Schwarz make equivalent findings that plaintiff has residual functional capacity for a full or wide range of light work. Rather, he expressly found that plaintiff's capacity for light work is limited. Consequently, there is no potential error to review.
Semantics aside, a more liberal construction of plaintiff's point again fails to identify any arguable error. Plaintiff's brief does not identify any evidence demon strating more physical limitations on plaintiff's capacity for light work than ALJ Schwarz recognized. Moreover, other than plaintiff's subjective complaints, the record contains no evidence suggesting that plaintiff cannot lift 20 pounds occasionally or 10 pounds frequently, walk or stand frequently, or sit while pushing or pulling arm or leg controls.
"Light work involves lifting no more than twenty pounds at a time with frequent lifting or carrying of objects weighing up to ten pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, [plaintiff] must have the ability to do substantially all of these activities." 20 C.F.R. § 404.1567(b), 416.967(b) (2002)
Plaintiff's final point of error also lacks merit.
XI. RECOMMENDATION
Because none of plaintiff's points of error should be sustained, the Commissioner's decision should be affirmed.
XII. OBJECTIONS
Within ten (10) days after receipt of the magistrate judge's report, any party may serve and file written objection to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C).
Failure to file written objections to the proposed findings and recommendation contained in this report within 10 days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings and recommendations.