Opinion
No. 1:00-CV-656
August 30, 2002
Russell James Wright, Silsbee, TX, for Plaintiff.
Steven MacArthur Mason, for Defendant.
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) and Local Rules for the Assignment of Duties to United States Magistrate Judges.
I. Nature of the Case
Plaintiff seeks an award of Social Security disability ("DIB") and supplemental security income ("SSI")benefits, both of which require proof of disability within the meaning of the Social Security Act. Plaintiff claims disability with an onset date of April 25, 1995, based on disabling nerve damage to his right leg and back, Tr. 73, and also mental impairment attributable to illiteracy and limited intellectual functioning.In administrative proceedings, the Commissioner found plaintiff not disabled, and denied his application for benefits. Plaintiff contests the Commissioner's decision by asserting that the Administrative Law Judge ("ALJ") erred in finding him not disabled. Jurisdiction is invoked pursuant to 42 U.S.C. § 405(g), which authorizes United States district courts to conduct judicial review of the Commissioner's final decisions regarding applications for Social Security benefits. Plaintiff exhausted all available administrative remedies before filing suit.
Plaintiff applied for DIB benefits on January 24, 1997, and for SSI benefits on January 6, 1997. Initial determination of non-disability was issued on March 17, 1997. Tr. 36. On May 8, 1997, plaintiff timely requested reconsideration, but the initial determination was affirmed on July 15, 1997. Tr. 35, 46. On September 12, 1997, plaintiff timely requested hearing before an administrative law judge ("ALJ"), which resulted in hearing on October 21, 1998. The ALJ determined that plaintiff is not disabled (Tr. 27) and, on June 8, 1999, plaintiff requested review of hearing decision by Appeals Council (Tr. 10-11). Appeals Council refused to review hearing decision. Tr. 5-6.
II. Judicial Review
A United States district court has "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The court's role is to determine (A) whether the Commissioner applied the proper legal standards, and (B) whether the decision is supported by substantial evidence. See Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001), citing Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000); Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992). The court must affirm the Commissioner's decision unless the ALJ applied an incorrect legal standard, or the ALJ's determination is not supported by substantial evidence. Boyd v. Apfel, 239 F.3d at 704.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); Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983). The court, in reviewing the record, may not 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 based upon correct legal standards and 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, 2 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co., 305 U.S. at 230, 59 S.Ct. at 217); see also, Title 42 U.S.C. § 405(g). If the Commissioner's findings are not supported by substantial evidence, Title 42 U.S.C. § 405(g) permits the court to modify or reverse the Commissioner's decision, with or without remanding the cause for rehearing.
III. Eligibility Standards
Eligibility for DIB and SSI 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).
IV. Administrative Sequential Evaluation Process
The law requires that the Commissioner make individualized determinations. See Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). The eligibility standards cited above require the Commissioner to make both medical and vocational assessments in every case. To accomplish this, the Commissioner's regulations direct persons considering disability applications to utilize a five-step sequential evaluation analysis. See 20 C.F.R. § 404.1520. This procedure contem plates individualized medical determinations. Vocational determinations, however, sometimes come from officially promulgated guidelines and tables from which the Commissioner takes administrative notice of disability vel non. Specifically, the Commissioner may take administrative notice of disability at Step 3 when an applicant's impairments equal or exceed those in the Commissioner's Listing of Impairments found in 20 C.F.R. Subpt. P, Appendix 1. Similarly, the Commissioner may also take administrative notice of disability at Step 5 by comparing an applicant's "residual functional capacity" (RFC) with Medical Vocational Guidelines, commonly called "the grids."
The five steps in the Commissioner's sequential evaluation process are as follows:
The Commissioner ascertains whether the applicant is currently engaging in substantial gainful activity. If so, a finding of non-disability is entered and the inquiry ends.
The Commissioner determines if the applicant's impairment or combination of impairments is severe, that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities. If not, the inquiry ends and a finding of non-disability is entered.
The Commissioner determines whether the severe impairment equals or exceeds those in the Listing of Impairments, 20 C.F.R. Subpt. P, Appendix 1. If so, disability is presumed and benefits are awarded.
The Commissioner determines whether the impairment prevents the individual from engaging in his regular previous employment. If so, a prima facie case of disability is established and the burden of going forward (to the fifth step) shifts to the Commissioner. See Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987).
The Commissioner determines whether other work exists in the national economy which the applicant can perform. If the Commissioner establishes that an applicant can perform alternative employment, the burden shifts back to the applicant to show he cannot perform the alternative labor. See Id.; Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986); 20 C.F.R. § 404.1520(a)-(f).
Appendix 1 to Part 404, Subpart P, of Regulations No. 4 is Listing of Impairments. The Listings describe impairments, categorized by body systems, and clinical findings which direct conclusion of presumptive disability for claimants whose impairment and medical evidence corresponds to the requirements. See 20 C.F.R. Pt. 404, Subpt. P, App. 1.
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.
Under this procedure, the Commissioner in many cases determines whether an applicant is disabled from performing substantial gainful work which exists in the national economy without receiving expensive, cumbersome, and time consuming expert vocational testimony. The procedure has judicial approval as a fair, just, uniform, and expeditious 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) (Sequential evaluation process "contribute[s] to the uniformity and efficiency of disability determinations").
Not every impairment or combination thereof matches the assumption of the grids. Thus, taking administrative notice of disability vel non is inappropriate in some cases. Specifically, at Step 5 — when the Commissioner must show that an applicant can perform alternative employment that exists in the national economy — administrative notice of available alternative employment cannot be taken when an individual's impairments are non-exertional in nature. In such circumstances, expert vocational testimony or other similar evidence must be adduced. Lawler v. Heckler, 761 F.2d 195, 198 (5th Cir. 1985); Dellolio v. Heckler, 705 F.2d 123, 127-28 (5th Cir. 1983).
Non-exertional impairments are those which do "not result in [strength] limitations, e.g. certain mental, sensory, or skin impairments. In addition, some impairments may result solely in postural and manipulative limitations or environmental limitations." 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200(e) (2001).
V. Administrative Law Judge's Decision
The Commissioner's ruling affirmed the determination of an Administrative Law Judge (ALJ) who conducted a hearing on October 21, 1998, and issued a decision on June 8, 1999. At the October, 1998, hearing the ALJ received and considered voluminous evidence from several sources. The ALJ received evidence regarding physical impairments from three treating physicians and two consulting physicians. The ALJ also heard testimony from a medical advisor. The ALJ also considered reports from three psychologists regarding mental impairments. The ALJ further heard plaintiff's testimony regarding both physical and mental impairments. This evidence collectively showed that plaintiff experiences physical complications from a workplace injury sustained to his right knee, and mental impairments due to limited intellectual functioning which, in combination, constitute a severe impairment preventing plaintiff from engaging in his regular previous employment.
Physicians at University of Texas Medical Branch ("UTMB") in Galveston, Texas, diagnosed plaintiff's infirmity as bilateral reflex sympathetic dystrophy. Tr. 129. However, Stefan W. Kreuzer, M.D., of UTMB found that diagnosis very questionable and noted that plaintiff would not comply with physical therapy. Tr. 125.
David Teuscher, M.D., of Beaumont Bone and Joint Clinic, Beaumont, Texas, concluded that plaintiff had no orthopaedic condition which he could treat and recommended physical therapy and evaluation by a neurologist. Tr. 146.
Paul Hill, D.C., diagnosed sciatica caused by possible lumbar disc herniation and a "crush injury to the right knee resulting in meniscal tearing and fragmentation." He concluded that plaintiff could not carry more than ten pounds and could not climb, balance, stoop, crouch, kneel or crawl. Tr. 162-63.
Consulting physician Frankie Siy, M.D., P.A., examined plaintiff and noted that plaintiff's "posture and activities are not consistent with a patient with paralyzed right leg," and that plaintiff's "physical and neurological examination is not consistent with any specific neuromuscular pathology." Tr. 178. Dr. Siy opined that, except for his right knee problem, plaintiff "should be independent in activities of daily living and ambulation." Tr. 178.
Consulting physician Lyman G. Phillips, M.D., concluded that plaintiff has no postural, manipulative, visual, communicative, or environmental limitations, and that plaintiff can lift fifty pounds, can stand and/or walk at least two hours and sit for six hours in an eight-hour workday, and has unlimited capacity for push-pull movements. Tr. 153-56. Dr. Phillips did not examine plaintiff, basing his opinion instead on his evaluation of medical evidence of record.
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. § 1527 (2000). 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. Richard DeYoung as a "medical expert." Dr. DeYoung reported that plaintiff's "stocking anesthesia" — areas of numbness which would be covered by a stocking — cannot be explained anatomically because nerves "do not come down the leg like a stocking does." Tr. 292. He further stated that plaintiff's inability to lift his leg while lying on an examination table conflicts with plaintiff's allegations of paralysis of his right leg, because pelvic muscles lift one's leg in a prone position, and the record indicates no abnormality of pelvic muscles. He also stated that neurological examination was normal, findings "did not follow any pattern of abnormality which would be on an organic basis" (Tr. 292), and that there is no orthopaedic reason for plaintiff to use crutches (Tr. 295).
Psychologist Dan H. Roberts, Ph.D., administered WAIS-R to determine that plaintiff's full scale IQ is 77. Based on plaintiff's MMPI results, Dr. Roberts stated that plaintiff may demonstrate somatization and exaggeration of symptoms, and he recommended treatment in a hospital-based pain program. Tr. 166.
Donald E. Trahan, Ph.D., of Center for Behavioral Studies in Beaumont, Texas, determined that plaintiff's full scale IQ is 78. He opined that plaintiff's cognitive limitations and functional illiteracy would make it difficult for plaintiff to retrain in any career field that would require skill. Tr. 170-71.
Dr. James C. Ronning, of Psychological Consulting Services, Beaumont, Texas, determined that plaintiff's full scale IQ is 82. Dr. Ronning reported that plaintiff's personality profile indicates that he is "egocentric" and "will manipulate others with his complaints," and that he will exaggerate physical pathology. Tr. 237. Concluding that plaintiff needs help managing major business affairs but can live independently, Dr. Ronning stated that plaintiff can use a calculator, pay his bills with cash or money order, can make change, is able to use public transportation and the post office, and can prepare his own meals. Tr. 236.
The ALJ also received the testimony of vocational expert, Norman Hooge, with respect to whether other work exists in the national economy that plaintiff can perform. In response to a hypothetical question from the ALJ, Hooge testified that persons of similar age, experience, and educational level and with physical and mental impairments like those exhibited by plaintiff can make "an adjustment to work which exists in significant numbers in the national economy." Tr. 27.
Vocational Experts (VE) are utilized to "assess whether jobs exist for a person with the claimant's precise abilities." Gilliam v. Califano, 620 F.2d 691 (8th Cir. 1980). The VE's testimony must: (1) assess the effect of any limitation on the range of work at issue; (2) advise whether the impaired person's residual functional capacity permits him or her to perform substantial numbers of occupations within the range of work at issue; and, (3) identify jobs if they exist and provide a statement of the incidence of such jobs in the region in which the person lives. See Ellison v. Sullivan, 921 F.2d 816 (8th Cir. 1990).
Following the hearing, the ALJ — employing the sequential step analysis described earlier — issued a written decision denying benefits, and making the following determinations:
Step 1: Plaintiff has not engaged in substantial gainful activity since April 25, 1995. Tr. 26.
Step 2: Plaintiff has severe impairments of borderline intellectual functioning and a complex meniscal tear of the right knee. Tr. 26.
Step 3: Plaintiff's impairments do not meet or equal the criteria of any of the impairments listed in Appendix 1 to Subpart P of Regulations No. 4. Tr. 26.
Step 4: Plaintiff is unable to perform his past relevant work. Tr. 26.
Step 5: (a) Plaintiff has residual functional capacity to perform the exertional demands of light work. Plaintiff is capable of only basic reading, and is otherwise illiterate; but can perform simple, repetitive tasks; and can stoop and kneel, and climb and balance occasionally. Plaintiff cannot crawl. Tr. 26, Finding 5.
(b) Although unable to perform a full range of light work, plaintiff is capable of making an adjustment to work which exists in significant numbers in the national economy. Tr. 27, Finding 11. Based upon plaintiff's age, education, vocational history, residual functional capacity, and the vocational expert's credible testimony, a finding of "not disabled" is reached within the framework of Sections 404.1569 and 416.969, and Rules 202.16 and 202.17, Table 2, Appendix 2, Subpart P, Regulations No. 4. Tr. 27, Findings 10 and 12.
At Step 5, the Commissioner engages in a two-pronged analysis. First, the Commissioner determines claimant's residual functional capacity ("RFC"). Residual Functional Capacity is defined as "what you can still do despite your limitations." 20 C.F.R. § 404.1545(a). It has three components: physical abilities, mental abilities, and other impairments. See 20 C.F.R. § 404.1545(a). Second, the Commissioner determines whether alternative work that the claimant can perform exists in the national economy.
VI. Points of Error
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 then ordered to file a brief in response. The court limits the scope of its judicial review to the points argued in the briefs.Plaintiff asserts that (a) Commissioner's decision is not supported by substantial evidence because ALJ's hypothetical questions to vocational expert Norman Hooge did not encompass all of plaintiff's impairments. Plaintiff further asserts that Commissioner failed to apply correct legal standards in that (b) the ALJ applied "federal employees' benefit law;" and (c) the ALJ applied Medical-Vocational Guidelines ("grids") under circumstances where it was inappropriate to find disability vel non through administrative notice.
Verbatim, plaintiff's points of appeal are as follows:
A. The Commissioner's finding that claimant is not under a disability is not supported by substantial evidence because the hypothetical questions to the vocational witness were incomplete and did not fully account for Plaintiff's impairments.
1. The hypothetical question did not account for the Plaintiff's disabling impairment, including requirement for Plaintiff to be confined to a wheel chair.
The Commissioner erred as a matter of law in applying federal employees' benefit law in determining that the Plaintiff retained the functional capacity to do light work and was therefore not disabled.
The Commissioner's finding that in the application of Rules 202.16 and 202.17 in Table 2, Appendix 2, Subpart P of 20 C.F.R. Plaintiff is not under a disability is not supported by substantial evidence. Because the finding is in conflict with another finding of the Administrative Law Judge that Plaintiff could not perform the full range of light work [sic].
Pl.'s Br. at Statement of the Issues.
To these points, the Commissioner responds (a) "the hypothetical question posed to the VE [vocational expert] incorporated all of the limitations the ALJ recognized Plaintiff to have, as shown by the conformity of the question with the ALJ's RFC [residual functional capacity] determination" (Deft.'s Br. at 7), and because the issue of whether plaintiff must use a wheelchair arose "after the date of the ALJ's decision [it] is, therefore, not relevant . . . [because it] concerns a subsequent deterioration of a previously non-disabling condition" and therefore does not qualify as new evidence which may be considered post-hearing (Deft.'s Br. at 9-10, 11); (b) "the record does not show that the ALJ applied federal employees' benefit law, but rather shows that he applied the law pertaining to disability determinations under the [social security] Act" (Id.); and (c) the ALJ "based his finding on the VE's testimony" and did not apply the grids but rather used them as a framework. Deft.'s Br. at 10.
VII. Discussion and Analysis
Plaintiff proffers three points of alleged error. One asserts that substantial evidence does not support the ALJ's decision. The other two contend that the ALJ failed to apply proper principles of law. The two latter points should be examined first. If that analysis discloses that the ALJ applied proper legal standards, the court must then address the final point and determine whether the Commissioner's decision is supported by substantial evidence.
A. Did ALJ Wrongfully Apply Federal Employees Benefit Law?
Plaintiff appeals the ALJ's Step 5 finding of residual functional capacity for light work on the ground that the finding was based on "federal employees' benefit law." Plaintiff's brief does not cite any statute setting forth federal employees' benefits standards. More significantly, plaintiff's brief also does not describe the substantive differences, if any, between social security disability standards and federal employees' benefit standards. Consequently, plaintiff's brief does not identify what improper legal standard the Commissioner allegedly applied, and this point raises nothing susceptible to meaningful judicial review.
B. Did ALJ Wrongfully Apply the Grids?
When determining plaintiff's disability status, the ALJ looked to the Medical-Vocational Guidelines ("grids"), specifically Rules 202.16 and 202.17, Table 2, Appendix 2, Subpart P, Regulations No. 4. The ALJ did not directly apply the grids to determine plaintiff's non-disability because he found that plaintiff's residual functional capacity for work is compromised by non-exertional limitations. Rather, he consulted the grids a "framework" of reference. Tr. 25; 27, Findings 11 12. He also elicited specific testimony of a vocational expert — whom he found credible — who opined that plaintiff can make "an adjustment to work which exists in significant numbers in the national economy." Tr. 27. Therefore, based on that testimony, and using Medical-Vocational Guidelines as a framework, the ALJ found that plaintiff is not disabled. Tr. 27, Finding 12.
When applicable, Rule 202.16 directs a finding of non-disability for a younger individual who is illiterate or unable to communicate in English, whose previous work experience is unskilled or none. 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table No. 2 (2001).
When applicable, Rule 202.17 directs a finding of non-disability for a younger individual whose education is limited or less — at least literate and able to communicate in English, whose previous work experience is unskilled or none. 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table No. 2 (2001).
A "younger individual" is one whose age is between 18 and 49. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 201(h) (2001).
As noted earlier, resort to the grids to determine disability vel non is inappropriate in some instances, most notably when — as in this case — the applicant suffers from non-exertional impairments. When the grids are inapplicable, the ALJ must elicit expert vocational testimony or other similar evidence to establish that jobs exist in the national economy that the applicant can perform. See Lawler v. Heckler, 761 F.2d at 198.
The Commissioner's regulations, however, contain a nebulous provision stating that even when a claimant's residual functional capacity is so significantly affected by a non-exertional impairment as to preclude rote resort to the grids for a disability determination, the grids may nevertheless be consulted as a "framework for consideration of how much the individual's work capability is further diminished in terms of any types of jobs that would be contraindicated by the non-exertional limitations." 20 C.F.R. pt. 404, subpt. P, app.2, § 200.00(§ e)(2) (2001). How, exactly, the grids provide such a framework is unclear, and both legal scholars and the courts have noted the disconnect. See John J. Capowski, Accuracy and Consistency in Categorical Decision-Making: A Study of Social Security's Medical-Vocational Guidelines — Two Birds with One Stone or Pigeon-Holing Claimants?, 42 Md. L. Rev. 329, 342 (1983); Sykes v. Apfel, 228 F.3d 259 (3d Cir. 2000) (holding that only expert vocational or similar evidence, not the grids, must establish extent to which a claimant's residual functional capacity is diminished by a non-exertional impairment); Nobles v. Commissioner of Social Security Administration, No. 9:00-CV-128, 2002 U.S. Dist. WL 553735, at *9 (E.D.Tex. Apr. 10, 2002) (holding that at minimum ALJ must articulate credible and plausible reasons supporting assertion that the grids provide a reliable framework when considering extent to which non-exertional impairments affect ability to perform specific jobs existing in national economy).
The Third Circuit's opinion cites numerous cases from other circuits wherein the same result was reached: See Fenton v. Apfel, 149 F.3d 907 (8th Cir. 1998); Abbott v. Sullivan, 905 F.2d 918 (6th Cir. 1990); Swindle v. Sullivan, 914 F.2d 222 (11th Cir. 1990); Ortiz v. Secretary of Health and Human Services, 890 F.2d 520 (1st Cir. 1989); Coffman v. Bowen, 829 F.2d 514 (4th Cir. 1987); Smith v. Bowen, 826 F.2d 1120 (D.C. Cir. 1987); Bapp v. Bowen, 802 F.2d 601 (2nd Cir. 1986); Warmoth v. Bowen, 798 F.2d 1109 (7th Cir. 1986); Francis v. Heckler, 749 F.2d 1562 (11th Cir. 1985).
It is fair to summarize that those courts that have not outright invalidated the Commissioner's framework regulation exhibit a healthy skepticism of an ALJ's use of the grids as a framework. First, such courts will investigate whether the ALJ — despite the framework assertion — relied entirely on the grids when making a determination. If so, the decision will be reversed. See, e.g., Abbott v. Sullivan, 905 F.2d at 927. If not, a reviewing court will require the ALJ to provide an understandable and plausible explanation as to how and why the grids provided a relevant and appropriate frame work in determining the extent to which a non-exertional impairment affected a claimant's ability to perform other work. Nobles, 2002 WL 553735, at *9.
Although courts identify numerous ills that may stem from using the grids as a framework for considering the disabling effect of a non-exertional impairment, legal precedent establishes that the cure for such ills is expert vocational testimony or similar evidence. In Lawler v. Heckler, the Commissioner — applying the grids as a framework — determined that the claimant could perform numerous unskilled light and sedentary jobs available in the national economy. The Fifth Circuit remanded, holding that once the Commissioner accepted the claimant's assertions regarding her non-exertional limitations, her fact situation no longer matched the assumptions of the grids. The Fifth Circuit declared that upon remand, the Commissioner should receive and rely upon expert vocational testimony or similar evidence. Lawler v. Heckler, 761 F.2d at 198.
In the present case, the ALJ, while stating that he resorted to the grids as a framework of reference, nevertheless elicited testimony from a vocational expert. The ALJ relied on that expert testimony in making his decision. Accordingly, the ALJ's reference to the grids as a framework was surplus age, and that reference — whatever may have been meant by it — does not impugn the ultimate decision because it was based properly on expert vocational evidence.
C. Did ALJ's Hypothetical Question Omit Relevant Impairments?
The two preceding sections disclose that the Commissioner applied proper legal standards. The remaining question is whether substantial evidence supports the Commissioner's decision. This issue turns on whether the expert vocational witness's opinion testimony was based on a proper hypothetical question.
When eliciting expert vocational testimony, an ALJ typically poses a hypothetical question that incorporates all disabilities that the ALJ has found. If the disabilities 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, if the hypothetical question is defective due to the ALJ's 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 at 707.
Here, plaintiff contends that the ALJ's hypothetical question to the vocational expert witness failed to accurately portray his disabilities in two respects. First, it misstated plaintiff's educational level. Second, it did not include a physical limitation requiring that plaintiff use a wheelchair. Each alleged defect is examined separately.
1. Educational Level
Regarding educational level, the ALJ asked vocational expert Hooge to assume plaintiff has a sixth grade education. The ALJ directed him to consider that plaintiff's reading ability is "just basic, almost illiterate." Tr. 298. Plaintiff contends that a proper hypothetical question would have stated that plaintiff's educational level was fourth grade, and that plaintiff is wholly illiterate. Pl.'s Br. at III.A.2.a-b.
There were discrepancies in the record regarding plaintiff's educational level. Conflicting evidence indicated that plaintiff might have completed the fifth grade, seventh grade, or "fourteen years of schooling." See Tr. 261 and 264. Plaintiff testified that he cannot read a newspaper or street sign, that he did not collect money or stamp prices when he worked at Walmart, but that he can use a calculator. Tr. 266-68. Seven days after the hearing, plaintiff's attorney adduced further evidence that plaintiff completed the fourth grade.
The ALJ ultimately determined that plaintiff has a "marginal" education, a determination supported by evidence submitted by plaintiff's attorney post-hearing, and "can perform basic reading but is otherwise illiterate in the English language." Tr. 26, Finding 8. The ALJ's hypothetical question encompassed a marginal education and near-illiteracy. The ALJ's determination of plaintiff's educational status is supported by substantial evidence of record, and his assessment of plaintiff's literacy level is reasonable. Consequently, the hypothetical question put to the vocational expert was not defective regarding educational level.
The regulations define marginal education as "ability in reasoning, arithmetic, and language skill which are needed to do simple, unskilled types of jobs. . . . [F]ormal schooling at a 6th grade level or less is a marginal education." 20 C.F.R. § 404.1564(b)(2). Illiteracy is defined as "the inability to read or write. We consider someone illiterate if the person cannot read or write a simple message . . . even though the person can sign his or her name. Generally, an illiterate person has had little or no formal schooling." 20 C.F.R. § 404.1564(b)(1).
2. Wheelchair Limitation
The second prong of Plaintiff's argument that the vocational expert witness's testimony was based on a defective hypothetical question is premised on the contention that the question did not take into account plaintiff's limitation requiring that he use a wheelchair. This point appears to be the principal focus of plaintiff's appeal seeking judicial review.
Plaintiff submitted a prescription form, signed by Harrypersad Singh, M.D., P.A., which simply states "Wheelchair . . . Reflex Sympatetic [sic] Dystrophy R. leg." The date of the prescription is difficult to read, although the year it was issued is clearly 1999. Tr. 242.
Plaintiff cannot argue that the ALJ erred in framing the question at the formal hearing conducted in October, 1998, because no such evidence existed at the time of the ALJ's hearing, or before the ALJ issued his decision. Instead, wheechair limitation evidence was submitted for the first time to the Appeals Council, well after the ALJ's decision. Therefore, the ALJ could not have incorporated need for a wheelchair into his hypothetical question.
Plaintiff's counsel attached the prescription as Exhibit B to his brief (see Tr. 246), submitted to the Appeals Council on February 9, 2000 (see Tr. 243).
Of necessity, plaintiff's argument must be that the Appeals Council should have remanded the case to the ALJ after plaintiff proffered the wheelchair prescription. Upon receipt of additional evidence, the Appeals Council was required by regulation to "consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision. . . . [and only then to] review the case if it finds that the administrative law judge's action, findings, or conclusion is contrary to the weight of the evidence currently of record." 20 C.F.R. § 404.970(b). The Appeals Council declined to remand the case to the ALJ, concluding that "neither [plaintiff's] contention nor the additional evidence provides a basis for changing the Administrative Law Judge's decision." Tr. 5. Because the wheelchair prescription is dated after the ALJ's decision, it clearly falls outside of the relevant time period. By declining to remand the case based on such evidence, the Appeals Council acted within its discretion and in compliance with governing regulations. Consequently, failure to obtain expert vocational evidence evaluating plaintiff's ability to perform available work with a wheelchair limitation is not a valid basis for reversing the Commissioner's decision.
XI. Conclusion
Plaintiffs' points of error fail to show either that the Commissioner applied improper standards of law or that her decision is not supported by substantial evidence because based on a defective hypothetical question. Accordingly, plaintiff has not shown that the decision should be reversed.
Plaintiff's brief concludes with a statement suggesting that the wheelchair prescription is "new evidence which is material and there is good cause shown for not including it in the record at the administrative hearing." Pl.'s Br. at IV. A remand for consideration of new and material evidence under 42 U.S.C. § 405(g) is not one of the points of error alleged and argued in plaintiff's brief, and therefore is not addressed in this report. Such point, had it been raised, would not likely have merit. Since the wheelchair evidence was considered and rejected by the Commissioner, the evidence is neither new nor is it likely to change the Commissioner's decision. Both such showings are necessary to win a remand. Johnson v. Heckler, 767 F.2d 180, 183 (5th Cir. 1985). Additionally, plaintiff's attorney characterized the wheelchair prescription as evidence that plaintiff's condition is worsening (Tr. 244, 246). Proof of "subsequent deterioration of the previously non-disabling condition" is not cause for remand. Falco v. Shalala, 27 F.3d 160, 164 (5th Cir. 1994), citing Haywood v. Sullivan, 888 F.2d 1463, 1471 (5th Cir. 1989).
XII. RECOMMENDATION
The Commissioner's decision should be affirmed.XIII. 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.