Opinion
No. 1:03-CV-925.
January 3, 2005
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
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) (2001) and Loc. R. CV-72 App. B, R.1(H) for the Assignment of Duties to United States Magistrate Judges. This case has been assigned pursuant to Beaumont General Order 98-6.
I. NATURE OF THE CASE
Plaintiff seeks judicial review of the Commissioner of Social Security Administration's (SSA) decision denying plaintiff's application for disability insurance benefits ("DIB").Title 42 U.S.C. § 405 authorizes United States district courts to conduct judicial review of the Commissioner's final decisions regarding applications for social security benefits. 42 U.S.C. § 405 (2004). Judicial review is limited. The court's abbreviated role is to determine whether (a) the Commissioner applied proper legal standards and (b) 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). If proper principles of law were applied, and if the Commissioner's decision is supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed.Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971) (quoting Consolidated Edison Co., 305 U.S. at 230, 59 S. Ct. at 217); see also 42 U.S.C. § 405(g).
By local orders of the court, complaints seeking judicial review of administrative decisions denying applications for social security benefits are treated as appeals. The party seeking review is required to specify alleged points of error, and to submit a brief containing legal arguments directed to those points. The Commissioner is ordered to file a brief in response. The court limits the scope of its judicial review to the points argued in the briefs. See Order Directing Filing of Briefs (Docket No. 8) and Notice to Parties in Social Security Appeal Cases (Docket No. 9).
II. PROCEEDINGS
Plaintiff, Dorothy Thomas, is a 57-year-old female who applied for benefits in January, 2002, alleging disability due to back pain caused by a work-related injury. Tr. 84-85. Her claim was denied initially and upon reconsideration. She then requested an evidentiary hearing before an Administrative Law Judge (ALJ). That hearing was held on April 15, 2003, before ALJ Christopher K. Bullard.On May 8, 2003, ALJ Bullard issued a ruling finding that plaintiff is not disabled because she has the ability to perform her prior relevant work as a data entry clerk. Tr. 17. Plaintiff filed a request for review with the Appeals Council, which denied her request on July 25, 2003. Plaintiff filed her complaint in this court on September 26, 2003.
III. ADMINISTRATIVE DECISION
The Commissioner utilizes a five-step sequential evaluation analysis to aid in determining when claimants are disabled. If a claimant is found not to be disabled at any step, the remaining steps are not considered. 20 C.F.R. § 404.1520 (2002). 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) (use of the sequential evaluation process "contribute[s] to the uniformity and efficiency of disability determinations").
After considering the evidentiary record, including medical records and witness testimony, ALJ Bullard utilized the sequential analysis framework to reach a decision at Step Four. He found:
Step One: "The claimant has not engaged in substantial gainful activity since the alleged onset of [her] disability." Tr. 17, Finding 2.
Step Two: "The claimant has an impairment or combination of impairments considered `severe' based on the requirements in the Regulations. 20 C.F.R. § 404.1520(b)." Tr. 17, Finding 3.
Step Three: "These medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4." Tr. 17, Finding 4.
Step Four: a. Claimant has the residual functional capacity to "perform a range of sedentary work." Tr. 17, Finding 7.
b. "The claimant's past relevant work as a data entry clerk did not require the performance of work-related activities precluded by her residual functional capacity ( 20 C.F.R. § 404.1565)." Tr. 17, Finding 8.
c. "The claimant's medically determinable status post diskectomy, diabetes and hypertension do not prevent the claimant from performing her past relevant work." Tr. 17, Finding 9.
Based on these findings, ALJ Bullard concluded that plaintiff "was not under a `disability,' as defined in the Social Security Act, at any time through the date of the decision." Tr. 17, Finding 10 (citing 20 C.F.R. § 404.1520(e)). Because he found that plaintiff is not under a disability as defined in the Social Security Act, and is able to perform her past relevant work, ALJ Bullard denied plaintiff's DIB application. Tr. 18.
The critical findings for this appeal are:
1. ALJ Bullard's finding at Step Two that plaintiff has multiple severe impairments, including diabetes. (Tr. 14, italics added);
2. ALJ Bullard's finding at Step Four that plaintiff retains residual functional capacity for sedentary work (Tr. 17, Finding 7.); and
3. ALJ Bullard's finding at Step Four that plaintiff's past relevant work was as a "data entry clerk," and that plaintiff was able to perform such work. (Tr. 17, Finding 8.).
IV. POINTS OF ERROR
Plaintiff asserts five points of error that are stated verbatim in the note. For analytical convenience, these points are rephrased, reordered, and combined as follows:1. The Commissioner failed to apply proper principles of law when making a residual functional determination because ALJ Bullard failed to consider each of plaintiff's impairments in combination.
2. The Commissioner's Step Four finding of residual functional capacity to perform sedentary work is not supported by substantial evidence because there is no express finding that plaintiff can perform the demands of sedentary work on a regular and continuing basis;
3. The Commissioner's Step Four finding that plaintiff's prior relevant work was data entry clerk constituted:
a. failure to apply proper principles of law because it improperly bifurcated plaintiff's prior job as cashier into separate jobs, including data entry clerk; and
b. lack of substantial evidence because there is no proof that plaintiff's data entry experiences lasted long enough for plaintiff to learn how to do it, or that data entry constituted substantial gainful activity.
Plaintiff's arguments, and the Commissioner's responses, are discussed separately in the succeeding sections.
V. CONSIDERING IMPAIRMENTS
This point of error emanates from ALJ Bullard's Step Two finding that plaintiff has multiple "severe impairments," including diabetes. This point is addressed first because its subject matter is relevant to an early determination in the sequential analysis procedure.
A. Competing Arguments
Plaintiff argues that ALJ Bullard neglected his legal duty to consider all of plaintiff's potentially disabling impairments, singly and in combination. Plaintiff asserts that ALJ Bullard found at Step Two that she has a severe impairment consisting of diabetes. However, ALJ Bullard did not thereafter at Step Four discuss this impairment or its effects on plaintiff's residual ability to work. Pl.'s Br. at 16. Plaintiff further asserts that this error resulted in ALJ Bullard's failure to include diabetes as an impairment when forming hypothetical questions to vocational expert Cheryl Swisher, vocational rehabilitation consultant, who testified at the evidentiary hearing. Plaintiff argues that expert testimony given in response to a defective hypothetical question does not constitute substantial evidence upon which the Commissioner can base a valid decision.
Vocational Experts are utilized by the ALJ to "assess whether jobs exist for a person with the claimant's precise abilities." Gilliam v. Califano, 620 F.2d 691 (8th Cir. 1980). The testimony must: (1) assess the effect of any limitation on the range of work at issue; (2) advise whether the impaired person's residual functional capacity permits him or her to perform substantial numbers of occupations within the range of work at issue; and, (3) identify jobs if they exist and provide a statement of the incidence of such jobs in the region in which the person lives. See Ellison v. Sullivan, 921 F.2d 816 (8th Cir. 1990).
In response, the Commissioner argues that ALJ Bullard did consider all of plaintiff's impairments, and that plaintiff never asserted that any of her other medical conditions, such as diabetes, contributed to her inability to work. The Commissioner cites portions of the transcript of the evidentiary hearing, wherein plaintiff, in response to a direct inquiry from ALJ Bullard regarding whether there was any other basis for her alleged disability, mentioned only back pain. As a result of plaintiff's failure to present any evidence of how her other impairments could affect her ability to work, the Commissioner argues that ALJ Bullard's finding is supported by substantial evidence.
B. Principles of Analysis
1. Impairments Generally
That the Commissioner must consider all alleged impairments is axiomatic. See 20 C.F.R. § 404.1523 (2004); Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000); Crowley v. Apfel, 197 F.3d 194, 197 (5th Cir. 1999). A claimant's impairments and severity thereof are determined at Step Two of the sequential evaluation process. When multiple impairments are present, the Commissioner's regulation and case law require consideration of the combined effect of all impairments, irrespective of whether any impairment, if considered separately, would not meet the definition of "medical severity." See, e.g., 20 C.F.R. § 404.1523 (2004); Crowley v. Apfel, 197 F.3d at 197; Anthony v. Sullivan, 954 F.2d at 293. If any impairment or combination of impairments is determined to be "medically severe," it must be considered throughout the remainder of the disability determination process. 20 C.F.R. § 404.1523 (2004); Loza v. Apfel, 219 F.3d at 393;Horton v. Barnhart, No. 1:03cv222 at 14-15 (E.D. Tex. filed Dec. 1, 2004).
"In determining whether your physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under the law, we will consider the combined effect of all of your impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity [to be the basis of eligibility under the law]. If we do find a medically severe combination of impairments, the combined impact of the impairments will be considered throughout the disability determination process."20 C.F.R. § 404.1523 (2004) (italics added).
In Horton, this court observed that a "befitting approach" at Step Two ultimately addresses three distinct questions:
• Does an allegedly disabling condition constitute an "impairment" as that term is understood in social security parlance?
• If so, does it constitute a "severe impairment" as that term is defined by the Commissioner and interpreted by courts?
• If not, does the impairment nevertheless combine with other impairments so that their cumulative effect amounts to a "severe impairment?" Id. at 15-16. In any event, failure to consider combined impact of multiple impairments constitutes a failure to apply correct principles of law. Loza v. Apfel, 219 F.3d at 393, 399; Owens v. Heckler, 770 F.2d 1276, 1282 (5th Cir. 1985) (citing Dillon v. Celebrezze, 345 F.2d 753, 756-57 (4th Cir. 1965) ("[The examiner erred] in his application of the proper legal standards. . . . [T]he examiner so fragmentized [plaintiff's] several ailments . . . that he failed properly to evaluate their effect in combination.")
Social Security benefits based on disability are awarded only for "impairments" that render a person unable to engage in any substantial gainful activity for a continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(A). For Social Security disability purposes, an "impairment" is an abnormality that can be shown by medically acceptable clinical and laboratory diagnostic techniques, and, in fact, must be established by medical evidence, as opposed to the claimant's subjective statement or symptoms. 20 C.F.R. § 416.908 (2004).
An impairment is severe when its magnitude is sufficient to limit significantly an individual's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c);Barnhart v. Thomas, 540 U.S. 20, 24 (2003).
2. Impairments and Hypothetical Questions Posed to Vocational Expert
When eliciting expert vocational testimony, an ALJ typically poses a hypothetical question to a vocational expert that incorporates all disabilities that the ALJ has found. Vocational experts are called to testify because they are familiar with job requirements and working conditions. Vaughan v. Shalala, 58 F.3d 129, 132 (5th Cir. 1995). The vocational expert expresses an opinion as to what available work a person with posed disabilities can perform. An ALJ may rely upon the testimony and conclusions of a vocational expert. Leggett v. Chater, 67 F.3d at 565.
When impairments recognized by the ALJ are reasonable under the evidence, and the ALJ's ultimate determination is consistent with the expert vocational testimony, the ensuing decision is considered to be supported by substantial evidence. Morris v. Bowen, 864 F.2d 333 (5th Cir. 1988). However, when a hypothetical question to a vocational expert is defective due to failure to accurately portray a claimant's physical and mental impairments, a determination of non-disability based on the vocational expert's answer to a defective question is not supported by substantial evidence, and cannot stand. Boyd v. Apfel, 239 F.3d 698, 707 (5th Cir. 2001).
There are exceptions to the general rule stated above. Failure to include some symptoms of impairments in a hypothetical is not error when there is no evidence that the symptoms interfere with the claimant's ability to work. Jordan v. Heckler, 835 F.2d 1314, 1316 (10th Cir. 1987). Reliance on a vocational expert's testimony elicited by a hypothetical question that includes only those impairments that the ALJ has found to be credible is not error. Hunter v. Chater, 895 F. Supp. 1454, 1463 (D. Kan. 1995). Finally, any potential error in omitting additional symptoms of impairments in a hypothetical question is minimized when the claimant is represented by counsel at the administrative hearing, and is given a chance to amend the hypothetical question to ensure that it includes all necessary symptoms. Reyes v. Barnhart, 2002 WL 1492208, *6 (W.D.Tex. 2002) (citing Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994)).
C. Discussion and Application
ALJ Bullard found that plaintiff has a severe impairment resulting from diabetes. This finding is puzzling in that (1) plaintiff never claimed disability stemming from diabetes; (2) plaintiff presented no evidence, nor does the transcript reflect either a diagnosis of diabetes or medication therefor; and (3) diabetes generally is considered to be a remediable condition not disabling under the Social Security Act absent significant complications. Nevertheless, it was ALJ Bullard's exclusive prerogative to weigh the evidence and make findings. Absent a challenge to such finding — not presented here — the court does not review it.
See, e.g., Jones v. Bowen, 829 F.2d 524, 527 (5th Cir. 1987) (citing Epps v. Harris, 624 F.2d 1267, 1270 (5th Cir. 1980)); Tibbs v. Shalala, 1994 WL 554177, *7 (E.D. La. 1994).
Social Security regulations indicate that diabetes must be accompanied by significant complications to be considered disabling at Step Two of the sequential analysis. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 at § 9.06 (stating that diabetes must be accompanied by neuropathy, acidosis, or retinitis proliferans to elicit an automatic presumption of disability)).
By definition, when ALJ Bullard determined plaintiff's diabetes to constitute a severe impairment, he necessarily concluded that plaintiff's diabetes was of a magnitude sufficient to significantly affect plaintiff's physical or mental ability to do basic work activities. See note 8, supra. Whatever such effects ALJ Bullard perceived, any objective symptoms associated therewith should have been included in hypothetical questions put to VE Swisher. ALJ Bullard posed two hypothetical questions, both containing several elements. Tr.45-46. However, neither specifically mentioned diabetes, and there is nothing indicating that any particular symptom associated with diabetes was included in either hypothetical question.
Under this circumstance, the court must sustain plaintiff's point of error. ALJ Bullard committed legal error by not further considering what he found to be a severe impairment — diabetes — beyond Step Two. His failure to do so at Step Four — specifically, his failure to include whatever symptoms of diabetes he thought to be of a magnitude to significantly affect the plaintiff's ability to perform basic work activities in the hypothetical questions posed to VE Swisher — deprived his decision based on VE Swisher's testimony of substantial evidentiary support. This case must therefore be remanded for reconsideration.
If the impairments stated in the several hypothetical questions posed were those associated with diabetes, it is incumbent on the Commissioner to so state when reaching a new decision on remand. Should further judicial review be necessary, the court may then evaluate whether appropriate effects of the disease were included in the hypothetical questions.
VI. ABILITY TO WORK ON REGULAR AND CONTINUING BASIS
A. Competing ArgumentsPlaintiff argues that a valid residual functional capacity finding depends on a specific finding that the claimant can maintain employment. Plaintiff argues that residual functional capacity for gainful employment exists only when an individual has ability to engage in remunerative work on a regular and continuing basis. Plaintiff argues that ALJ Bullard omitted this necessary finding, and that the omission was important because plaintiff testified that he had good days and bad days intermittently.
The Commissioner responds that plaintiff's medical records did not indicate that she experienced waxing and waning of symptoms that required ALJ Bullard to specifically consider whether plaintiff could maintain employment on a continuous basis. The Commissioner asserts that ALJ Bullard's decision that plaintiff could return to her past relevant work was "reasonable considering the record as a whole," Def.'s Br. at 4, and should therefore stand.
B. Principles of Analysis
Applicants who retain the capacity for "substantial gainful employment" are not entitled to social security disability benefits. Substantial gainful employment contemplates employment on a regular and continuing basis. Singletary v. Bowen, 798 F.2d 818, 820-21 (5th Cir. 1986); White v. Heckler, 740 F.2d 390, 395 (5th Cir. 1984); see also 20 C.F.R. § 404.1574(a)(1). Hence, any valid residual functional capacity finding must be based on this overarching principle. Both 20 C.F.R. § 404.1545(b) and Soc. Sec. R. 96-8p (1996) set forth general rules that determining residual functional capacity requires consideration of whether a claimant is able to perform work duties on a continuous basis.
The Social Security regulations provide:
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.20 C.F.R. § 404.1545(b) (2004).
Likewise, Soc. Sec. R. 96-8p (1996) provides:
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.
Generally, such a finding is implicit. There is no requirement to make an explicit "regular and continuing basis" finding absent evidence of a waxing and waning nature of the claimant's symptoms, such that the impairments interfere with the claimant's ability to maintain employment on a continuing basis. Singletary v. Bowen, 798 F.2d 818 (5th Cir. 1986) (holding that, where claimant has a mental impairment with effects that sporadically hamper his ability to work, the ALJ must make a specific finding that claimant can maintain employment on a continuing basis);Watson v. Barnhart, 288 F.3d 212 (5th Cir. 2002) (applying theSingletary holding to physical impairments); Frank v. Barnhart, 326 F.3d 618 (5th Cir. 2003) (holding that it is the claimant's responsibility to first establish the waxing and waning of their symptoms to require the ALJ to specifically state that the claimant can maintain employment). Even then, it is not error to omit this explicit finding if the ALJ's decision cites the appropriate regulation and Social Security Ruling mentioned above. In Dunbar v. Barnhart, 330 F.3d 670, 672 (5th Cir. 2003), the court concluded that an ALJ's citation to the appropriate regulation and ruling permitted the court to infer that the ALJ determined that the claimant could perform the work in question on a regular and continuing basis. Overall, the Fifth Circuit has determined that an ALJ's citation to the appropriate regulation and Social Security Ruling suffices to conclude that the claimant can perform work on a regular and continuing basis. Dunbar v. Barnhart, 330 F.3d at 672.
C. Application and Discussion
In this instance, ALJ Bullard cited both the appropriate regulation and Social Security Ruling. He stated: "[t]he term `residual functional capacity' is defined in the Regulations . . . ( 20 C.F.R. § 404.1545(b) and Social Security Ruling 96-8p)." Tr. 15. ALJ Bullard's citations to this regulation and ruling suffice as an implicit finding that plaintiff can perform sedentary work on a regular and continuing basis. This point of error therefore fails.
VII. SEGREGATING DUTIES OF PRIOR RELEVANT WORK
A. Competing ArgumentsALJ Bullard characterized plaintiff's prior relevant work at Brookshire Brothers as "data entry clerk." Based on VE Swisher's testimony, he further concluded that plaintiff could return to that work. Accordingly, plaintiff was found not disabled.
Plaintiff argues that she never worked as a data entry clerk. Rather, she was a cashier who only occasionally entered data into a computer with the aid of an assistant manager. Pl.'s Br. at 12, Tr. 42-43. Plaintiff argues that bifurcating her prior work into two separate jobs — cashier and data entry clerk — was legal error. Further, plaintiff argues that ALJ Bullard's finding that she worked as a data entry clerk is not supported by substantial evidence, because she only performed such duties for a short period of time while under a manager's supervision.
In response, the Commissioner argues that this determination of whether plaintiff ever worked as a data entry clerk boils down to a basic credibility assessment. The Commissioner asserts that plaintiff's work as a data entry clerk was a "major job function" that she "unambiguously reported" as having performed on a work history form. Def.'s Br. at 8 (citing Tr. 110). The Commissioner also argues that plaintiff admitted in testimony that she performed data entry tasks, but then "downplayed her ability to perform the task by herself." Def.'s Br. at 8. The Commissioner concludes that both ALJ Bullard and VE Swisher concluded that something about plaintiff's testimony "did not add up," and therefore determined that plaintiff could perform data entry tasks. Id.
B. Principles of Analysis
Some courts hold that segregating out a segment of former job duties and considering that limited set of duties as past relevant work is improper. See, e.g., Valencia v. Heckler, 751 F.2d 1082, 1086-87 (9th Cir. 1985) (tomato sorting was one of claimant's duties as an agricultural worker, but was not her "past relevant work"); Armstrong v. Sullivan, 814 F. Supp. 1364, 1371-72 (W.D. Tex. 1993) (ALJ erred by separating "cook" and "cashier" portions of claimant's job at a barbeque restaurant when determining whether claimant could meet demands of past relevant work). The Fifth Circuit, however, holds that a claimant's inability to perform certain requirements of a prior job does not mean that the claimant is unable to perform "past relevant work," as that phrase is used in the regulations.Leggett v. Chater, 67 F.3d at 564; Jones v. Bowen, 829 F.2d at 527 n. 2. Overall, the case law on this issue is not uniform, and provides no solid answers with regard to how much bifurcation of jobs can occur without error.
What is clear, however, is that to qualify as past relevant work, work experience must have (a) occurred within the last 15 years; (b) lasted long enough for the claimant to learn to do it; and (c) constituted substantial gainful activity. 20 C.F.R. § 404.1565(a). Courts interpret the "lasted long enough" requirement to be variable, depending on the job at issue.Lashley v. Sec'y of Health and Human Serv., 708 F.2d 1048, 1053 (6th Cir. 1983) (holding that plaintiff's prior work as a stock clerk was not "past relevant employment" because plaintiff attempted to perform the position for only three days before quitting); Alexander v. Apfel, 2000 WL 322784 at *5 (E.D. La. Mar. 28, 2000) (holding that plaintiff, who worked as a telephone operator for two consecutive summers, could return to her past relevant work since she did not indicate that she had any difficulties performing her duties).
20 C.F.R. § 404.1565(a) defines "work experience" in detail: "Work experience means skills and abilities you have acquired through work you have done which show the type of work you may be expected to do. Work you have already been able to do shows the kind of work that you may be expected to do."
C. Application and Discussion
It is not necessary here for the court to tackle the murky question of whether ALJ Bullard acted improperly in focusing solely on plaintiff's data entry duties as a grocery store cashier when determining her past relevant work. Assuming arguendo that segregating out data entry from other duties was not legal error, ALJ Bullard's finding that plaintiff's past relevant work was data entry clerk is not supported by substantial evidence. The record shows that plaintiff only occasionally performed data entry tasks while employed as a cashier at Brookshire Brothers. Tr. 42-43. Plaintiff only performed data entry work under the guidance of the assistant manager of the store, id., and was employed at Brookshire Brothers as a cashier for only 18 months. Tr. 106. The record does not indicate that plaintiff could perform data entry tasks on her own, or that she performed such tasks on a regular basis. Plaintiff's experience with data entry work was scant at best, and the record does not contain substantial evidence that plaintiff's performance of data entry tasks lasted long enough for her to learn how to do data entry work.
VIII. RECOMMENDATION
The court should sustain two of plaintiff's points of error and remand this action to the Commissioner for reconsideration in accordance with the foregoing analysis.
IX. 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.