Opinion
Civ. No. 02-4453 (DRD).
October 27, 2004
Abraham S. Alter, Esq., Langton Alter, Rahway, NJ, Attorney for Plaintiff.
Christopher J. Christie, United States Attorney, By: Anthony J. Labruna, Assistant United States Attorney Newark, New Jersey, Attorney for Defendant.
OPINION
Plaintiff appeals from a final determination of the Commissioner of Social Security ("Commissioner"), denying his application for Disability Insurance Benefits and Supplemental Security Income Benefits under the Social Security Act, alleging disability since June 19, 1997. By decision dated February 24, 1999, the Administrative Law Judge ("ALJ") determined that plaintiff was not entitled to a period of disability or disability insurance benefits under sections 216(I) and 223 of the Social Security Act, as amended ("Act"), and is not eligible for supplemental security income under sections 1602 and 1614(a)(3)(A) of the Act. The Appeals Council denied Plaintiff's request for review on July 10, 2002, making the ALJ's decision final. Tr. 7-8. For the reasons set forth in this opinion, the Commissioner's determination is vacated and this case is remanded for reconsideration.
Facts and Procedural History
Plaintiff was born in Puerto Rico on February 1, 1942, and did not obtain more than a ninth grade education. Tr. 36, 61, 456. At the time of the hearing before the ALJ, plaintiff: 1)had lived in the United States for 37 years; 2) stated he could not read, write, or speak any English; and 3) was 57 years old. Tr. 38.
Plaintiff worked cleaning glass tubing for neon lamps from September 1987 until June 1997 when he stopped working. Tr. 79-80. Cleaning of the tubes involved removing the glass tubing from a box, submerging them in a tank of water and then placing them on a cart. Tr. 40 94. In the cleaning process, plaintiff would lift and carry up to 50 pounds for approximately 10 feet. Tr. 40, 82, 96. Plaintiff's boss fired him from this job because every now and then he had to sit down and rest. Plaintiff subsequently received 5 months of unemployment insurance. Tr. 40-41.
Plaintiff filed an application for Disability Insurance Benefits and Supplemental Security Income ("SSI") disability benefits under Title XVI of the Act on June 26, 1997, alleging disability since June 19, 1997, due to heart, kidney and lung conditions which caused shortness of breath and dizziness. Tr. 40, 112, 500-503. After Plaintiff's application was denied initially and upon reconsideration, he requested a hearing before an ALJ. Tr. 61. A hearing was held on December 14, 1998. The ALJ determined Plaintiff was not entitled to a period of disability or disability insurance benefits under sections 216(I) and 223 of the Act, nor was he eligible for SSI under 1602 and 1614(a)(3)(A) of the Act. Tr. 25 65. This decision became final when the Appeals Council denied Plaintiff's request for review. On September 13, 2002, Plaintiff brought this action appealing the final decision of the Commissioner on the grounds that the ALJ erred in making his final determination.
Administrative Decision/Findings
In a written decision, the ALJ made the following findings:
1. The claimant meets the disability insured status at all times relevant to this decision.
2. There is no evidence of work activity since the alleged onset date in this case.
3. The medical evidence establishes that the claimant has the following medically determinable impairments: chronic obstructive pulmonary disease and an adjustment disorder. Since the claimant's impairments significantly limit his ability to perform basic work activities, there is a "severe" impairment.
4. The claimant's impairments neither meet, nor equal, the requirements for any impairment listed in Appendix 1 to Subpart P, Regulations No. 4.
5. The claimant's allegations of disabling symptoms and limitations are not fully credible.
6. The claimant has the residual functional capacity to perform the requirements of work except for: lifting more than 50 pounds occasionally or 25 pounds frequently ( 20 CFR 404.1545 416.945).
7. The claimant's past relevant work as a neon tube cleaner did not require the performance of the work-related activities precluded by the above limitation ( 20 CFR 404.1565 416.965).
8. The claimant was not under a "disability", as defined in the Social Security Act, at any time through the date of this decision ( 20 CFR 404.1520(e) 416.920(e)). Tr. 19-25.
Plaintiff contends the decision of the ALJ is not based on substantial evidence in the record. Plaintiff asserts four reasons for this contention: 1) The ALJ intentionally omitted evidence and failed to articulate any evidentiary foundation for his decision at the third step of the sequential evaluation; 2) the ALJ failed to articulate any reason for his residual functional capacity ("RFC") assessment; 3) the ALJ's conclusion that Plaintiff can perform past relevant work is unsubstantiated; and 4) the ALJ did not engage in a pain evaluation.
Evidence Before the ALJ
Evidence before the ALJ consisted of Plaintiff's testimony and Plaintiff's medical records.
I. Plaintiff's Testimony
At a hearing held on December 14, 1998, in Newark, New Jersey, Plaintiff testified before ALJ Gerald Ryan. Tr. 34. A translator was present and participated in this hearing. Tr. 52.
Plaintiff, born on February 1, 1942, was married and lived with his spouse in a city housing apartment. Tr. 37-38, 501. Having lived in the United States for thirty-seven years, since the age of 18, Plaintiff did not read, speak, write or understand any English and completed seventh grade in school Tr. 38 477. Plaintiff was 5'1" tall, and weighed 130 pounds. Tr. 38-39.
Records indicate that Plaintiff stands between 5'1" and 5'3" tall, and weighed between 109-130 pounds. Tr. 38-39, 112, 265, 413.
In 1994 Plaintiff underwent a lung operation, during which, a part of his lung was removed. Tr. 39. Plaintiff indicated that the lung operation also resulted in additional problems for him — mainly loss of breath and exhaustion. Tr. 39-40.
Plaintiff last worked on June 18, 1997, when he was employed washing glass tubing for neon lamps (which were packed in containers that weighed about 50 pounds). Tr. 40. Plaintiff stopped working in June of 1997 because he was fired as a result of not being able to do his job, as he would frequently sit down and rest. Tr. 39-40. Plaintiff never received Worker's Compensation, but received Unemployment Insurance Benefits for five months. Tr. 40-41.
Plaintiff's doctor told him that medication would not take care of his medical problem, but rest would help. Plaintiff did not take any prescription medication though he sometimes took Mylanta for his stomach. Tr. 41. Plaintiff could not do any housework at his apartment, and did not cook, wash dishes, sweep, mop, clean the kitchen or bathroom, or take out the garbage because the trash receptacle was located on a lower level, and he became fatigued and out of breath from climbing the steps from and to his third floor apartment. Tr. 41-42. Plaintiff sometimes accompanied his wife to the supermarket, but other than that, only went to church, the doctor's and lawyer's offices. Tr. 42. When he accompanied his wife to the supermarket, Plaintiff sometimes sat down until his wife finished shopping; and he could not carry anything. Tr. 48.
Plaintiff could lift a maximum of 5 to 10 pounds, and carry the weight for a short distance. Tr. 43. Plaintiff could walk for a period of five to ten minutes, after which time, he had to sit down and rest. Tr. 43. Plaintiff had difficulty standing for more than 5 to 10 minutes, but reported no difficulty sitting, using his arms or hands. Tr. 44. Plaintiff had a hearing problem in one ear, though he had no health insurance that could be used to have the problem treated. Tr. 44. Plaintiff had a breathing problem, did not take any medication for the problem, but went to the doctor every month for treatment at the Elizabeth General Medical Center. Tr. 45. Plaintiff testified that he got dizzy at times, and that the doctor was treating him generally. Tr. 46. Plaintiff usually didn't feel well throughout the week; instead he felt tired, fatigued, and had spells of dizziness, which sometimes required him to sit down until they subsided. Tr. 48. Plaintiff remarked that his complaint was difficulty in breathing, and that his doctors told him that his lung condition might come back and he should not smoke or drink. Tr. 46-47. Plaintiff testified he did not smoke. Tr. 46.
Plaintiff's doctor told him that his heart was getting enlarged due to his lung operation. Tr. 47-48. Plaintiff experienced pains in his chest, and his heart raced or beat very hard when he was exhausted. Tr. 48.
Plaintiff reported he was treated for three months (ending three months before the hearing) at the Department of Behavioral Health and Psychiatry of the Elizabeth General Medical Center. Tr. 50.
II. Medical Records
Medical records reflect doctors' treatment or examination of Plaintiff between 1994 and 1998.
Masor Report
On April 5, 1994, Plaintiff was admitted to the Irvington General Hospital on an emergency basis with the complaint of cough, shortness of breath, chest pain and weight loss. He was examined by Dr. Harvey Masor. Tr. 154. Dr. Masor found evidence of a pleural effusion and admitted Plaintiff to the hospital with a diagnosis of carcinoma of the right lung. After Plaintiff was admitted to Irvington General Hospital a series of tests and surgical procedures was performed which disclosed various impairments but ruled out lung cancer. He underwent thoracocentesis and the biopsy findings were non-diagnostic. Tr. 161. He underwent mediastinoscopy on April 13, 1994 and the biopsy was positive for granulomatous disease. There was evidence of multi-nucleated giant cells with areas of extensive fibrosis. Some of the granulomatas showed focal necrosis. Id. Plaintiff further underwent thoracotomy. His post operative care was unremarkable. During his April 1994 stay at the Hospital numerous tests were performed.
On April 6, 1994, the Pulmonary Function Laboratory at Irvington General Hospital reported Plaintiff had decreased lung volumes and small airway obstruction. Tr. 265-266. This same report showed Plaintiff having an FVC (forced vital capacity) of 2.19 liters and FEV-1 (forced expiratory volume in 1 second) of 1.76 liters. Tr. 265. Dr. Masor noted there was mild restrictive ventilatory defect. Tr. 266. A chest x-ray ordered on April 13, 1994 revealed segmental calcifications of the thoracic aorta and opacification of the right hemithorax. Tr. 258. There was frequent reference in the medical reports of Plaintiff's "known pulmonary tuberculosis". (e.g., Tr. 261). Plaintiff had an unremarkable recovery and was discharged from the hospital on April 28, 1994. Tr. 411.
Munoz Report
Plaintiff initially visited Dr. Francisco Munoz of Union Square Medical Associates on April 12, 1996 for a general evaluation. Tr. 443. Dr. Munoz reported that Plaintiff's lungs were clear to auscultation and percussion, heart was regular in rate and rhythm, and extremities showed no clubbing, cyanosis or edema. Tr. 443. Dr. Munoz noted Plaintiff might have Chronic Obstructive Pulmonary Disease ("COPD"). Tr. 444.
On April 18, 1996, an artifact was detected in Plaintiff's right upper lobe. Tr. 434. Plaintiff visited Dr. Munoz again on May 20, 1996, and records indicate that Plaintiff's lungs were clear. Tr. 413-415. In an April 9, 1997 report, the doctor noted that the questionable artifact in the right upper hemithorax, referenced in the April 18, 1996 report, was believed to correlate with Plaintiff's previous surgery. Tr. 433-34.
A chest x-ray from June 14, 1997 depicted no abnormality of the heart, and clear lungs with signs only indicating previous surgery; there was no indication of pleural effusion or pneumothorax. Tr. 419. On June 16, 1997, Plaintiff was sent from work to Union Square Medical Associates, because he was complaining of chest pains. Tr. 418. On July 9, 1997, a request for information on Plaintiff's status was sent to Dr. Munoz from the State of New Jersey, Department of Labor. Tr. 417.
Plaintiff was seen on October 10, 1997, and dyspnea is noted in the physician's progress reports. Tr. 418. A radiographic report requested by EMS, dated October 31, 1997, revealed the presence of suture in the right upper chest, aerated lungs, and an unremarkable cardiovascular silhouette. Tr. 447. Plaintiff's lungs showed no active parenchymal lung disease, pulmonary congestion, pneumothorax or pleural effusion. Tr. 447.
Milazzo Report
Plaintiff was examined by Dr. Salvatore Milazzo, a consultative doctor from Evaluative Medical Services on October 31, 1997 for medical evaluation. Tr. 453. Dr. Milazzo conducted the evaluation for the State of New Jersey, Department of Labor, Division of Disability and Determination Services. Tr. 453. The doctor's report was issued on November 8, 1997. Tr. 453-455.
In his report, Dr. Milazzo wrote that Plaintiff made little effort on his own in terms of muscle resistance on any body part — including inspiration and expiration, there was thoracolumbosacral muscular tightness, slow but functional range of motion, lungs were faint in terms of breath sounds though they appeared to be clear, heart was regular, no cyanosis, edema or clubbing, and pulmonary function tests showed FVC of 81% and FEV-1 of 64% indicating obstructive disorder, postbronchodilator and FVC 69% and FEV-1 82%, there was high variability. Tr. 453-455. Dr. Milazzo stated:
"In summation this is a 56-year-old man who presents today, in my impression, possibly being depressed, asks his son to do anything physical, gives no muscular effort on his own even including inspiration and expiration, gives a strength of only 3+/5, has full range of motion of his extremities, no neurological findings, no radicular pain, no sensory abnormalities. His lungs have faint breath sounds, but they appear to be clear. His pulmonary function test appears to be very variable in terms of trying to get true values of his lung function. His chest x-ray is normal. His blood work is normal. His EKG shows sinus rhythm and is normal." Tr. 454-455.
Plaintiff's test results for October 31, 1997 showed Plaintiff stood at 63 inches, weighed 135 pounds, with pre and post FVC values of 2.49 and 2.12 respectively, pre and post FEV-1 values of 1.59 and 2.04 respectively, pre and post FEV-1/FVC% of 63.9 and 96.2 respectively. Tr. 456. Predicted values for FVC and FEV-1 are 3.06 and 2.49 respectively, and FEV1/FVC%-80.8. Tr. 456, 469.
The Spirometric Pulmonary Function Test Summary showed the Vital Capacity ("VC") as 2.49, observed before bronchodilators and 2.12 observed after bronchodilators and the FEV-1 as 1.03 before bronchodilators and 2.04 after bronchodilators. Tr. 469. The predicated value for the VC was 3.06 and the predicted value for the FEV-1 was 2.49. Tr. 469. Pulmonary function testing occurred on October 31, 1997. Tr. 469. The description of Plaintiff's cooperation and effort is incomplete on the summary sheet, reading in its entirety, "claimant cooperation effort was claimant. (sic)" Tr. 469.
A bronchodilator is a medication used to improve bronchial airflow.
Ghanbari Report
On June 25, 1998, Plaintiff was examined at Elizabeth General Medical Center. Plaintiff had faint or decreased breathing sounds at the right base. Tr. 416. A July 2, 1998 examination did not show an enlarged heart, but atherosclerotic changes of the thoracic aorta were seen, in addition to fibrotic changes at the base. Tr. 497. At the time of examination, a recommendation for comparison with old films or a CT scan was made. Tr. 497. On each of four visits, June 25, 1998, July 23, 1998, September 3, 1998, and October 29, 1998, medical records indicate that Plaintiff had faint or decreased breathing sounds at the right base. Tr. 491, 490.
Atherosclerosis is the progressive narrowing and hardening of arteries over time, often resulting from deposits of fatty substances, cholesterol, cellular waste products, calcium, and other substances building up in the inner lining of an artery. The build up is referred to as plaque.
Brito Report
Plaintiff went for an initial evaluation on April 28, 1998 at Elizabeth General Medical Center Department of Behavioral Health and Psychiatry. Maria Brito, social worker, completed the Comprehensive Intake Assessment. Tr. 479. During intake, Plaintiff complained of poor memory, poor concentration, poor impulse control, erratic sleep patterns and diminished appetite. Tr. 480. Brito noted that Plaintiff drinks occasionally, has no more than a ninth grade education, and speaks Spanish and limited English. Tr. 481, 484, 486. Brito noted Plaintiff's physician did not determine a physical handicap, but that this view is different than Plaintiff's. Tr. 486. Brito wrote that Plaintiff describes mild depressive symptoms attributed to the loss of his job due to his difficulty performing the required work. Tr. 487. Brito diagnosed Plaintiff with intermittent explosive disorder. Tr. 487.
Determination of Disability and Burdens of Proof
Disability, as defined by statute means, "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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). It will be determined that a person is under a disability "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).
As required by the Act, the Commissioner of the Social Security Administration has prescribed a five step sequential analysis to be used for evaluating disability claims. 20 C.F.R. § 404.1520. First, a determination of whether the claimant is engaged in "substantial gainful activity" is made. If claimant is engaged in such, claimant will be deemed non-disabled, resulting in ineligibility for benefits irrespective of claimant's medical condition, education, work experience or age. 20 C.F.R. §§ 404.1520(b), 404.1520(a)(4)(I). Second, medical severity of the impairment is considered, irrespective of age, education and work experience. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520©). Third, the medical severity of the impairment is again considered to determine whether the impairment is or is the equivalent of one of the impairments contained on the list in 20 C.F.R. § 404, Subpt. P, App. 1. If claimant's impairment is included on the list and meets the duration requirement, then claimant is deemed disabled at the third step, irrespective of age, education and work experience. 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d). If claimant's impairment is not listed, a determination is made at the fourth step, as to whether claimant retains the RFC to perform his past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f). At the fourth step, claimant bears the burden of proving he is unable to return to his previous type of employment. At the fifth step, the Commissioner bears the burden of showing that claimant, based on his age, education, work experience and an assessment of his RFC, has the capacity to perform other work that exists in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g).
Standard of Review
This court is charged with determining whether the findings of fact by the ALJ are supported by substantial evidence in the record. 42 U.S.C. 405(g). The court will, "determine whether the record, as a whole, contains substantial evidence to support the Commissioner's findings." Claussen v. Chater, 950 F. Supp. 1287, 1292 (D.N.J. 1996); Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994). The court is bound by the ALJ's findings of fact supported by substantial evidence in the record and will exercise plenary review of the legal issues. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000); Fargnoli v. Massanari, 247 F. 3d 34, 38 (3d Cir. 2001); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Winston v. Heckler, 585 F. Supp. 362 (D.N.J. 1984), 366 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The evidence "must do more than create a suspicion of the existence of the fact to be established . . . [I]t must be enough to justify, if the trial were 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." N.L.R.B. v. Columbian Enameling Stamping Co., 306 U.S. 292, 300 (1939).
Discussion
The issue in this case is whether substantial evidence supports the ALJ's decision that Plaintiff was not entitled to a period of disability or disability insurance benefits under sections 216(I) and 223 of the Act, nor was he eligible for SSI under 1602 and 1614(a)(3)(A) of the Act. Tr. 25 65. It is necessary that there be substantial evidence in the record as a whole to support the ALJ's findings. Winston v. Heckler, 585 F. Supp. at 266.
The ALJ's Analysis
At step one of the five step analysis, the Commissioner determines whether the claimant is engaged in substantial gainful activity. The ALJ determined Plaintiff was not engaged in substantial gainful activity, as the Plaintiff had not worked since June 18, 1997. There is no dispute between parties at this step of the analysis.
Plaintiff also meets the criteria set forth in step two of the analysis, requiring severe impairment. The ALJ determined that Plaintiff is suffering from a severe impairment.
At step three of the analysis, it is determined whether claimant's impairment is one of the listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. If so, the claimant is conclusively presumed to be disabled. 20 C.F.R. § 404.1520(d), Knepp v. Apfel. In this case, the ALJ determined that Plaintiff's severe impairment did not meet or equal those listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1.
The ALJ states, "the claimant's condition does not satisfy that standard [having a condition that meets or equals the requirements for any impairment listed in Appendix 1 to Subpart P. Regulations No. 4.]. For example, his chronic obstructive pulmonary disease did not result in a forced expiratory volume after one second (FEV-1) of 1.05 liters or less, or a forced vital capacity (FVC) of 1.25 liters or less as measured by acceptable pulmonary function studies. Even considering the combination of the claimant's impairments, the level of severity does not equal that contemplated for any of the Appendix 1 impairments. Disability cannot be established at this step of the evaluation.". Tr. 20-21.
Step 4 requires the ALJ to consider whether the claimant retains the RFC to perform his or her past relevant work or some other work that proves to be less demanding. 20 C.F.R. § 404.1520(d), Knepp v. Apfel, Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999). The claimant bears the burden of demonstrating an inability to return to his or her past relevant work. Adorno v. Shalala, 40 F.3d at 46. An ALJ's finding of RFC must "be accompanied by a clear and satisfactory explication of the basis on which it rests." Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). This is necessary so that the court may properly exercise its responsibility under 42 U.S.C. § 405(g) to determine if the Secretary's decision is supported by substantial evidence. Id. at 705.
In this case, the ALJ ended his analysis at step 4 because he determined that Plaintiff retained an RFC that did not require Plaintiff to lift more than 50 pounds occasionally or 25 pounds frequently. The ALJ determined that Plaintiff's job as a neon-tube cleaner did not require him to perform duties precluded by his limitations. Tr. 21, 23-24.
In Cotter, 642 F.2d at 704, the Court of Appeals for the Third Circuit stated, "The ALJ has the duty to hear and evaluate all relevant evidence in order to determine whether an applicant is entitled to disability benefits." While the ALJ is not required to explicitly analyze every piece of evidence in the record, the ALJ is required to set forth essential considerations on which the decision was based. Id. at 705.
Treatment of Medical Evidence
The ALJ must include in his opinion his reasons for rejecting or discrediting medical evidence. Cotter at 707. The ALJ should not weigh all medical reports equally. He or she must analyze the examining relationship and the frequency of examination, the nature and extent of the treatment relationship, supportability, consistency, and the reporting physician's specialization. 20 C.F.R. § 404.1527. Generally, the opinions of treating physicians are given more weight than the opinions of non-treating physicians. 20 C.F.R. § 404.1527.
In this case, the ALJ erred by failing to explain his treatment of relevant medical evidence. He did not articulate why and whether certain medical evidence is more persuasive. The voluminous records of the Irvington General Hospital contained important information about the condition of Plaintiff's lungs, but the ALJ treated these records only in the most cursory way. The ALJ did not fully develop the record and the court cannot conclude that he based his decision on substantial evidence contained in the record in making his determination.
The ALJ frequently makes reference to some of the objective medical evidence contained in the record. In his decision, the ALJ points to Dr. Milazzo's subjective notes and credits them. Plaintiff's claims are not ignored, but the weight given to them is obviously less than that given to Dr. Milazzo's findings. The ALJ wrote, ". . . the objective findings in this case fail to provide strong support for the claimant's allegations of disabling symptoms and limitations". Tr. 21. It should be noted that the objective findings of Dr. Milazzo also include the subjective opinion of Dr. Milazzo, as some test results conducted by Dr. Milazzo were inconclusive.
Controlling weight is given to evidence when it is "well-supported . . ." 20 C.F.R. § 404.1527. Dr. Milazzo is a consultative physician. He was hired to perform a one-time examination of Plaintiff. The ALJ's opinion contains no indication of the consideration or relative weight granted to medical records and reports prepared by Plaintiff's treating physicians as compared to those of Dr. Milazzo. This type of analysis is imperative, particularly in a case in which the ALJ appears to draw many of his conclusions from the consultative doctor's records. In this case, the ALJ refers to Dr. Milazzo's records on a number of occasions. He states, "[Plaintiff's] credibility was suspect during medical testing." Tr. 23. Further examination of other medical records contained in the record was needed to determine the appropriateness of this observation.
The consultative physician, Dr. Milazzo, concluded that all Plaintiff's tests were normal, except for the PFT and motor testing. However, these two tests are the basis upon which the Plaintiff's case would ultimately be determined. Though results of at least one of these tests indicate Plaintiff could fall within the range to qualify as disabled under the guidelines, Tr. 461, the ALJ grants significant weight to Dr. Milazzo's belief that Plaintiff does not exert the effort he could have exerted when he completed the tests. The ALJ failed to address evidence which would negate the conclusion that Plaintiff was malingering. For example, there is medical evidence in the record that Plaintiff's COPD resulted in an FEV-1 of 1.05 liters or less, which might well render Plaintiff disabled at step three. Tr. 459. This taken in conjunction with Plaintiff's history of operative procedures on his lungs, tuberculosis, various other lung impairments and his testimony about his breathing difficulties tend to negate a finding of malingering. The court also notes that there is no record of Plaintiff's treating physicians doubting Plaintiff's subjective complaints of pain and difficulty breathing, lifting and carrying.
The ALJ determined that Plaintiff had an FEV-1 less than 1.05 liters. It is unclear to the court what height the ALJ used when assuming Plaintiff's FEV-1 had to be equal to or less than 1.05 liters. The record referred to Plaintiff's height as being between 5'1" and 5'3" on numerous occasions. The ALJ, because he takes the FEV-1 value documented in Dr. Milazzo's medical records, should have noted that Plaintiff's height is listed on the same records as 63" (5'3"). Tr. 459. The ALJ writes, "his chronic obstructive pulmonary disease did not result in a forced expiratory volume after one second (FEV-1) of 1.05 liters or less." Tr. 20-21. The ALJ says this is why Plaintiff's impairment does not meet the level of severity necessary. A height between 61" and 63" requires an FEV-1 level equal to or less than 1.15 liters. Multiple test results included in the record show Plaintiff's FEV-1 level less than 1.15. Tr. 459, 461.
In reaching his conclusion that Plaintiff's FEV-1 had to be 1.05 liters or less, the ALJ should have articulated what standard was used, and how he applied it in this case. It appears that the ALJ did not accept some of the test results contained in the record prepared by Dr. Milazzo.
During the hearing, the ALJ requested Plaintiff's medical records update from 1998. Tr. 51. Plaintiff's attorney noted that the records had been requested and would be furnished to the ALJ as soon as they were received from the examining doctor. Tr. 51. The ALJ gave Plaintiff's attorney until January 14, 1999 to submit the records update. Tr. 52. Though he requested the additional information concerning Plaintiff's medical status, the ALJ did not state whether and how he considered the 1998 records from Plaintiff's doctors. Consideration of the additional evidence might have lead the ALJ to give different weight to the medical evidence already submitted. In Stewart v. Secretary of HEW, 714 F.2d 287, 291 (3d Cir. 1983), the court recognized that the introduction of new evidence might lead the ALJ to place less weight on the testimony of one doctor.
Plaintiff's Credibility
An ALJ may consider and weigh credibility. However, the ALJ must give some indication of the evidence he rejects and his reasons for discounting the evidence. Plummer v. Apfel, 186 F.3d at 429; Cotter v. Harris, 642 F.2d at 705. Appellant's demeanor, and other indicia of credibility might be considered to discredit Plaintiff's claim. Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).
In this case, the ALJ's finding that Plaintiff is not credible, is not supported by substantial evidence. The ALJ bases his conclusion about Plaintiff's credibility on the opinion of Dr. Milazzo and a statement made by Plaintiff that Plaintiff completed seventh grade, when in fact he may have completed ninth grade. This rather minor discrepancy, if indeed it was a discrepancy, hardly justifies rejection of Plaintiff's testimony on significant matters.
The ALJ wrote, ". . . the claimant's credibility was suspect during medical testing due to poor or contrived efforts by the claimant". Tr. 23. The ALJ merely refers to the report of Dr. Milazzo in his determination of Plaintiff's credibility, perhaps limiting his ability to assess other evidence in the record, as he points to little else to support his determination. In Stewart v. Secretary of HEW, 714 F.2d at 290, the ALJ did not credit claimant's testimony. However, the ALJ's opinion was based on, "careful review of the medical record, which reveal[ed] an essential paucity of objective findings, as well as by claimant's appearance, demeanor, and testimony at the hearing."
The ALJ does not state he bases his conclusion, that Plaintiff is not credible, on factors such as Plaintiff's appearance or demeanor, rather he excerpts a few lines of testimony from more than fifteen pages of transcript.
Plaintiff stated that he had problems understanding the English language which means he had limited English proficiency. The record indicates that during Plaintiff's testimony (an interpreter was present), Plaintiff told the ALJ that he had attained a seventh grade level of education. Information contained in the record reports Plaintiff completed eighth grade, and the record also reports that Plaintiff completed the ninth grade. Tr. 123, 484. The ALJ states, "the claimant testified that he completed the seventh grade. However, file evidence shows that the claimant completed the ninth grade". Tr. 23. It is not clear from the medical report that the ALJ refers to in his decision, whether a translator was present during Plaintiff's intake. Tr. 479-488. If a translator were present, a determination of Plaintiff's credibility on a statement about the level of education he attained, when three pieces of contradictory evidence exist in the record, does not constitute sufficient evidence to call into question Plaintiff's credibility or disregard the whole of Plaintiff's testimony.
Subjective Complaints of Pain
Pain can be a basis for disability. As stated in Stewart v. Secretary of HEW, 714 F.2d at 289, "pain, in and of itself, can represent a disability". In Smith v. Califano, 637 F. 2d 968, 970 (3d Cir. 1981), the court found that appropriate consideration was not given to Plaintiff's testimony of severe pain. In that case, the ALJ, drew an impermissible inference of no disability.
The factors relevant to Plaintiff's symptoms that must be considered along with objective medical evidence presented in a case are outlined in 20 C.F.R. § 416.929 and 20 C.F.R. § 404.1529. Included among the factors are Plaintiff's "daily activities, the location, duration, frequency and, intensity of [Plaintiff's] pain or other symptoms, precipitating and aggravating factors . . ." 20 C.F.R. §§ 404.1529(C)(3), 416.929(c)(3). In assessing the total limiting affects of [one's] impairment(s) and any related symptoms, we will consider all of the medical and nonmedical evidence . . ." 20 C.F.R. § 404.1545(e). Information from Plaintiff's prior work record may also be considered as evidence presented. 20 C.F.R. §§ 404.1529(C)(3), 416.929(c)(3).
The ALJ has the discretion to arrive at an independent judgment in light of medical findings and other evidence, regarding the true pain of claimant. Marcus v. Califano, 615 F.2d at 27. The Court of Appeals for the Second Circuit has held that, "if . . . the ALJ in fact did not consider the credibility of appellant's claims of disabling pain, but instead rejected her claims on the ground that objective, clinical findings did not establish a cause for such intense pain, then the Secretary's decision was premised on an erroneous legal standard". Id. Appellant's demeanor, and other indicia of credibility might be considered to discredit Plaintiff's claim of severe, disabling, pain, and evidence of the sort may represent substantial evidence. Id. Subjective complaints of pain may not be disregarded in the absence of objective evidence supporting the claim. Id.
The ALJ may use discretion in giving weight to the testimony of claimant's subjective pain. However, controlling weight must be given to all aspects of the reports — including Plaintiffs' subjective testimony of significant pain, lack of breath, and limited ability to stand, walk, and lift.
Though the ALJ has discretion in making his determination, the ALJ does not point to substantial evidence contained in the record on which he based his determination. The ALJ's decision does not address how and whether he considered Plaintiff's pain in making his determination.
The ALJ wrote, "[Plaintiff] was still capable of running errands, enjoying leisure activities . . ." Tr. 23. Plaintiff's testimony includes statements that Plaintiff could not complete many "errands", as he could not walk up and down the stairs to his third floor apartment with ease, often had to remain seated in the front of the grocery store while his wife shopped, and lost breath when he walked or stood for more than 10 minutes or lifted more than 10 pounds.
The record indicated that Plaintiff had muscle weakness and slow range of motion, shortness of breath and diminished breath sounds. The ALJ wrote, ". . . treatment notes . . . noted [Plaintiff] was feeling okay with only occasional shortness of breath". Tr. 23. Plaintiff stated that his inability to breathe with ease occurs when he is engaged in certain activities, including walking, standing, and lifting, which are three activities the ALJ believes Plaintiff may still actively engage in.
The ALJ's failure to address Plaintiff's subjective complaints of pain in his decision constitutes an error. Though the ALJ writes that he considered Plaintiff's subjective pain when making his determination, the ALJ should clearly lay out whether he accepted or rejected evidence of Plaintiff's pain contained in the record, and the reasons for rejecting or accepting it.
RFC Assessment and Past Relevant Work
The ALJ should articulate reasons for the RFC assessment he reaches. The ALJ must consider all relevant evidence when determining an individual's RFC in step four of the five step analysis. 20 C.F.R. § 404.1527(e)(2). Evidence to be considered includes medical records, observations made during formal medical examinations, descriptions of limitations by the claimant and others, and observations of the claimant's limitations by others. 20 C.F.R. § 404.1545(a). Included among limitations are those resulting from Plaintiff's symptoms, such as pain as described and outlined by Plaintiff. 20 C.F.R. § 404.1545. The Plaintiff is generally charged with providing the evidence to be used in making a finding about Plaintiff's RFC. 20 C.F.R. § 404.1545(a)(3).
A Plaintiff's RFC often becomes the benchmark upon which disability is either awarded or denied. Therefore, the ALJ must consider and explain reasons for discounting evidence before him when making an RFC determination. Burnett v. Comm'r of Social Security, 220 F.3d 112, 121 (3d Cir. 2000). RFC is assessed based on all relevant evidence contained in the case record. 20 C.F.R. § 416.945. Physical and mental demands of past relevant work will be compared with the RFC assessment. 20 C.F.R. § 416.960(b). The ALJ must consider the Plaintiff's particular limitations to determine whether the claimant retains the ability to perform either her former work or some less demanding employment. Adorno v. Shalala, 40 F.3d at 47, citing Heckler v. Campbell, 461 U.S. 458, 459-460 (1983). Of major significance in determining whether Plaintiff could perform his former work is his unrebutted testimony that he was fired by his employer because he could not meet the physical demands of that work.
The ALJ in this case did not expound on his consideration of Plaintiff's possible limitations. In his decision, the ALJ writes, "after carefully considering the entire record, including the claimant's subjective complaints of disabling symptoms and limitations, a finding is warranted that the claimant's impairments preclude only the following work-related activities: lifting more than 50 pounds occasionally or 25 pounds frequently." Tr. 21. The ALJ's decision does not contain an adequate comparison of the physical and mental demands of Plaintiff's past relevant work with the RFC assessment, nor is there any discussion of how the ALJ concluded that Plaintiff is capable of or will be successful in performing his past relevant work.
There is no discussion of testimony given by Plaintiff regarding his inability to lift and carry certain weights. As the record indicated, Plaintiff was fired from a job requiring lifting of up to 50 pounds. In fact, it was the same job that the ALJ asserted Plaintiff is capable of performing. Even Dr. Milazzo's report indicated that Plaintiff had a slow, functional range of motion. Based on the record, it is unclear how the ALJ determined Plaintiff is capable of performing the same work at the same job from which he was fired (for his inability to perform the required work). If the ALJ is convinced Plaintiff is only precluded by his impairments from lifting more than 50 pounds occasionally or 25 pounds frequently, then the ALJ must clearly articulate what evidence he used in making his determination.
Medical records included a report by Dr. Milazzo that said Plaintiff did not exert effort during the manual muscle power test, and that Plaintiff's score on the test of 3+/5 did not accurately reflect Plaintiff's ability to do the tasks he was asked to do. Tr. 23, 455. The ALJ may not assume, when determining Plaintiff's RFC, that Plaintiff is capable of exerting more effort, because as the ALJ noted, "these test results were not acceptable . . .". Tr. 22.
The ALJ did not examine the requirements of Plaintiff's past relevant work. There is no indication in the record, beyond Plaintiff's description of his work duties contained in the ALJ's decision. Thus it cannot be determined whether substantial evidence supports the ALJ's finding at step four of the disability evaluation.
Conclusion
The ALJ's decision is not based on substantial evidence contained in the record. The ALJ failed to develop the record adequately. This case will be remanded to the ALJ for reconsideration and adequately supported findings.