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refusing to take into consideration a measurement error of 5 points
Summary of this case from Burns v. BarnhartOpinion
C.A. No. 99-039-SLR
March 30, 2000
Neilson C. Himelein, Esquire, Community Legal Aid Society, Inc., Wilmington, Delaware, Attorney for Plaintiff.
Carl Schnee, United States Attorney, Luis M. Matos, Assistant United States Attorney, United States Attorney's Office, Wilmington, Delaware. Attorneys for Defendant. Of Council: James A. Winn, Chief Council, Region III, Nora R. Koch, Assistant Regional Council, Social Security Administration, Philadelphia, Pennsylvania.
MEMORANDUM OPINION
I. INTRODUCTION
Ann Williams ("plaintiff") filed this action against defendant Kenneth S. Apfel, the Commissioner of Social Security ("Commissioner"), on February 1, 1999. (D.I. 2) Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405 (g) of a decision by the Commissioner denying her claim for disability insurance benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401-433 and §§ 1381-1383d. Presently before the court are the parties' cross-motions for summary judgment. (D.I. 15, 17) For the reasons that follow, the court shall deny plaintiff's motion and grant the Commissioner's motion.
II. PROCEDURAL HISTORY
On January 19, 1994, plaintiff filed a claim for disability benefits based on hypertension, mental retardation, back pain, and alcohol abuse. Plaintiff alleged an onset date of June 2, 1991. (D.I. 11 at 14, 77-94, 104) The claim was rejected by the Social Security Administration (DI. 11 at 95-97), and on August 17, 1994 plaintiff requested, and was granted, reconsideration. (D.I. 11 at 100, 104-06) Upon reconsideration, the Social Security Administration denied plaintiff's claim on December 20, 1994. (D.I. 11 at 104) On February 21, 1995, plaintiff filed a request for a hearing before an Administrative Law Judge ("ALJ"). (D.I. 11 at 110) A hearing before an ALJ was conducted on May 24, 1996, at which plaintiff testified and was represented by a "senior paralegal." (D.I. 11 at 46-76) Medical evidence was submitted to supplement testimony given at the hearing. (D.I. 11 at 133-227)
On November 27, 1996, the ALJ issued his decision denying plaintiff benefits. (D.I. 11 at 11-22) In considering the entire record, the ALJ found the following:
1. The claimant has not engaged in substantial gainful activity since June, 1991.
2. The medical evidence establishes that the claimant has severe subaverage intellectual functioning and alcohol abuse, but that she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
3. Claimant['s] complaints of pain and functional limitations are not credible.
4. The claimant has the residual functional capacity to perform work-related activities except for work involving more than medium [sic] ( 20 C.F.R. § 416.965).
5. The claimant's past relevant work as [sic] did not require the performance of work related activities precluded by the above limitations ( 20 C.F.R. § 416.965).
6. The claimant's impairments do not prevent the claimant from performing her relevant work.
7. The claimant was not under a "disability" as defined in the Social Security Act, at any time through the date of the decision ( 20 C.F.R. § 416.920 (e)).
(D.I. 11 at 21)
Plaintiff sought review of the ALJ's determination before the Appeals Council. (D.I. 11 at 8-10) In addition to the material which was before the ALJ, plaintiff's paralegal provided the Appeals Council with a legal memorandum and an "attachment regarding musculoskeletal and connective tissue disorders." (D.I. 11 at 3, 246-256) The legal memorandum submitted to the Appeals Council challenges the ALJ's determination on several grounds. First, it states that "the ALJ did not satisfy his duty to fully and fairly develop the facts," because he refused to order a back x-ray. (D.I. 11 at 246-47) Second, that memorandum challenges "the ALJ's finding that the claimant's medical retardation does not meet or equal the requirements . . . is not supported by substantial evidence." (D.I. 11 at 248-50) Third, it challenges the ALJ's rejection of a post hearing medical report as not supported by substantial evidence. (D.I. 11 at 250-51)
On October 28, 1998, the Appeals Council denied plaintiff's request for review of the ALJ's decision, finding that there was no basis under the regulations for granting her request. (D.I. 11 at 4-6) The Appeals Council stated that it had considered the additional evidence, but that the evidence did not provide a basis for changing the ALJ's decision. (D.I. 11 at 4) The Appeals Council also stated that the ALJ's "decision stands as the final decision of the Commissioner of Social Security in your case." (D.I. 9 at 6) Plaintiff then sought review of this final decision before this court pursuant to 42 U.S.C. § 405 (g) and 1383 (c)(3).
III. PRE-HEARING MEDICAL AND QUESTIONNAIRE EVIDENCE
Plaintiff claims that her back problems began after she left her employment with "Urban Picnic" in June 1991. (D.I. 11 at 57-58; D.I. 15 at 4) Plaintiff filed a claim for disability on January 14, 1994. (D.I. 11 at 77-80)
On January 14, 1994, plaintiff completed a "Disability Report." (D.I. 11 at 133-40) In that report, plaintiff indicated that she was disabled because of "high blood pressure, bad back, [my] legs go out from under me, [and] short[ness] of breath." (D.I. 11 at 133) Plaintiff specified June 1991 as both the date these conditions first bothered her and the date that she stopped working because of them. (D.I. 11 at 133) Plaintiff also indicated that she was unable to walk or stand for long periods of time, and that she suffered from shortness of breath when she washes dishes and transverses stairways. (D.I. 11 at 133) Plaintiff indicated that her "household maintenance" included cleaning up the kitchen, taking out the trash, doing laundry, cooking, dusting, and vacuuming. (D.I. 11 at 138) Plaintiff further indicated that she watches TV, entertains friends, attends church on a bi-weekly basis, and that she does not drive. (D.I. 11 at 138)
On June 14, 1994 a doctor completed a "residual physical functional capacity assessment." (D.I. 11 at 155-62) That assessment indicates that plaintiff can "[o]ccasionally lift and/or carry" 50 pounds, "[f]requently lift and/or carry" 25 pounds, and that her ability to "[p]ush and/or pull" is unlimited. (D.I. 11 at 156) The assessment also indicates that plaintiff is able to "[s]tand and/or walk" for 6 hours a day, and that she is able to sit for the same time period. (D.I. 11 at 156) The form also indicates that plaintiff has a "postural limitation" in that she can only occasionally balance, and that she should "avoid even moderate exposure" to both hazards and heights. (D.I. 11 at 157, 159) That report indicates at least some of these restrictions to be based on "active alcohol[ism]." (D.I. 11 at 154) Lastly, the assessment indicates that plaintiff has no other "postural," manipulative," "visual," "communicative," or "environmental" limitations. (D.I. 11 at 157-59)
The doctor's signature is illegible.
At the request of the State Disability Service, on June 10, 1994, Dr. Singh completed and submitted a disability determination based on visits with plaintiff. (D.I. 11 at 173-74; D.I. 15 at 4) The visits took place between December 6, 1992 and May 27, 1994. (D.I. 11 at 173) That disability determination indicates that plaintiff suffered from "chronic backache," "headaches," and high blood pressure. (D.I. 11 at 173-74) The report also indicates that plaintiff was given motrin (for pain) as well as several other medications. (D.I. 11 at 174) It also appears that in making that determination, Dr. Singh did not rely on or obtain x-ray tests of plaintiff's back. (D.I. 11 at 174)
Plaintiff became dissatisfied with the treatment of Dr. Singh, and transferred to the Henrietta Johnson Medical Center for treatment beginning June 19, 1994. (D.I. 11 at 53, 193) The record contains progress notes from this facility. (D.I. at 193 (214) (June 19, 1994 through August 11, 1994); 192 (210) (August 11, 1994 through August 22, 1994); 209 (August 22, 1994 through October 27, 1994); 208 (January 20, 1995 through February 28, 1995); 204 (April 3, 1995); and 203 (May 23, 1995 through September 19, 1995)) These medical notes are, for the most part, illegible. It does appear, however, that the Henrietta Johnson Medical Center sent plaintiff to various locations for several medical tests.
Although these progress notes are labeled "Southbridge Medical Advisory Council, Inc." it appears that these notes are from the Henrietta Johnson Medical Center. (D.I. 15 at 5)
Several of these records appear twice in the record, and the duplicate page is indicated in parenthesis, where applicable.
On August 17, 1994 plaintiff completed a "Reconsideration Disability Report." (D.I. 11 at 141) In that report, plaintiff indicated that since she filed her initial claim, she "pass(es] out at times-without warning." (D.I. 11 at 141) Plaintiff also indicated that "my back locks upon me for 5 or 10 minutes whenever I bend over." (D.I. 11 at 141) Plaintiff further indicated that Dr. Singh was treating her for "high blood pressure, headaches, [and] back problems," and that her last visit was in May 1994. (D.I. 11 at 142) Plaintiff also indicated that she had been to the "Henrietta Johnson Center" three times for blackouts and back problems. (D.I. 11 at 142)
On October 26, 1994, plaintiff underwent a "holter monitor" test at St. Francis Hospital in Wilmington, Delaware. (D.I. 11 at 179, 209) That test revealed "basic rhythm is normal sinus, with areas of sinus tachycardia approaching 125 beats per minute," and "a rare, isolated ventricular premature contraction." (D.I. 11 at 179 (212)) Plaintiff also underwent an electroencephalogram ("EEG") test that revealed "EEG within the limits of normal variability in the wakeful and light sleep states." (D.I. 11 at 180 (213))
Plaintiff returned to St. Francis Hospital on August 24, 1994 to undergo an "upper GI" related to chest pains and "blackouts." The "impression" listed on the result is "normal upper GI series." (D.I. 11 at 183). On September 26, 1994, plaintiff received a pap smear test at the Henrietta Johnson Medical Center, also in Wilmington, Delaware. That test diagnosed plaintiff as being "within normal limits." (D.I. 11 at 181-182)
On December 15, 1994, a unnamed person completed a "residual physical functional capacity assessment." (D.I. 11 at 147-54) That assessment indicates that plaintiff can "[o]ccasionally lift and/or carry" 50 pounds, "[f]requently lift and/or carry" 25 pounds, and that her ability to "[plush and/or pull" is unlimited. (D.I. 11 at 148) The assessment also indicates that plaintiff is able to "[s]tand and/or walk" for 6 hours a day, and that she is able to sit for the same time period. (D.I. 11 at 148) That form also indicates that plaintiff must avoid unprotected heights and all exposure to hazards, because she is an "active alcoholic." (D.I. 11 at 149, 151, 154) Lastly, the assessment indicates that plaintiff has no other "postural," manipulative," "visual," "communicative," or "environmental" limitations. (D.I. 11 at 149-51)
The signature on that form is illegible.
On February 24, 1995, plaintiff completed a "claimant's statement when request for hearing is filed and the issue is disability." On that form, plaintiff indicates that since August 17, 1994 her blackout spells have increased in frequency, and that "I am even afraid to go out to shop because I am afraid I may black[out]." (D.I. 11 at 145) The record shows that no x-ray testing was completed on plaintiff's back prior to the hearing before the ALJ. That hearing took place on May 24, 1996. (D.I. 11 at 46)
The record is somewhat unclear as to the exact date of the questionnaire's completion. February 24, 1995 is the last date listed on this form, and the exhibit list indicates the date completed as February 25, 1995. In any event, the title of that form leads to the conclusion that it was completed prior to the hearing before the ALJ. (D.I. 11 at 1, 145-46)
IV. FACTS EVINCED AT THE ADMINISTRATIVE LAW HEARING
A hearing concerning plaintiff's claim for disability was held before an ALJ on May 24, 1996. (D.I. 11 at 46) Plaintiff stated that she was born on April 5, 1938. (D.I. 11 at 48) Plaintiff has a ninth grade education. (D.I. 11 at 49) Her past relevant work included pressing children's clothes, working in food preparation, and office cleaning. (D.I. 11 at 49-52) Since June 1991, plaintiff has not had gainful employment. (D.I. 11 at 52) At that time, the restaurant where she worked went out of business. (D.I. 11 at 54) Plaintiff testified that since that time she has been unable to work due to both back pain and her inability to gain employment. (D.I. 11 at 52)
Plaintiff testified that, as a result of her back pain, she is restricted in her activities. Specifically, she testified that she is unable to walk for more than two blocks. (D.I. 11 at 62) In addition, she testified that she can stand for only "10 minutes or so," and that she has trouble bending over. (D.I. 11 at 63) Further, plaintiff testified that she can only kneel if she has to, and that she can only sit for limited periods of time. (D.I. 11 at 63) Plaintiff testified that she is unable to lift ten pounds, and more specifically that she "tr[ies] not to." (D.I. 11 at 63) She testified that lifting was her main problem. (D.I. 11 at 67) Plaintiff stated that a bag of groceries will cause her to strain. (D.I. 11 at 64) Plaintiff also testified that she can do laundry and that, "I go to the laundromat." (D.I. 11 at 66)
Plaintiff described other physical ailments at the administrative law hearing. For example, plaintiff testified that she suffers from high blood pressure, which causes her to feel "light-headed." (D.I. 11 at 58) She also testified that she suffers from depression, including passing suicidal thoughts. (D.I. 11 at 58, 72-73)
The ALJ questioned plaintiff about her problems with alcohol abuse. (D.I. 11 at 59) Plaintiff testified that, "I've been drinking heavily recently since I've been out of work." (D.I. 11 at 59) However, she also stated that "I haven't had a drink in over a month." (D.I. 11 at 59) Plaintiff testified that, since she last worked, she has spent a brief period in a detoxification center, but that she left against medical advice. (D.I. 11 at 60) Plaintiff stated that she left because the medication given to her scared her, because she was "not aware of what's going on around me." (D.I. 11 at 60)
The ALJ also questioned plaintiff about her ability to perform her prior employment tasks. When asked about office cleaning, plaintiff responded that she would be unable to perform well, because she would have trouble dusting and bending over to empty trash cans. (D.I. 11 at 67) When asked about her ability to cook, plaintiff responded that she was unable to do so, because cooking requires "a lot of lifting." (D.I. 11 at 67) When asked about pressing clothes, plaintiff testified that she would be unable press, because the job requires "standing all day, 8 hours." (D.I. 11 at 68)
At the hearing, no testimony was heard from any physicians, family members, friends, or vocational counselors. Further, the ALJ indicated that he would order both an "orthopedic" exam and a "psychiatric" exam. (D.I. 11 at 75-76)
V. POST-HEARING MEDICAL EVIDENCE
The record contains a psychiatric report concerning plaintiff dated July 11, 1996. (D.I. 11 at 228-33) That report indicates that plaintiff "admits to drinking approximately six beers and one pint of wine per day." (D.I. 11 at 228) The Intelligence Quotient (IQ) testing revealed "a verbal IQ of 66, a performance IQ of 62, and a full scale IQ of 63." (D.I. 11 at 229) Further, "all scores fall within the moderately impaired range." (D.I. 11 at 229) Also, the report indicates that, "it is likely that her cognitive skills have always been somewhat impaired." (D.I. 11 at 230)
Plaintiff visited Dr. Labowitz, a consultative medical examiner, on August 7, 1996. (D.I. 11 at 243) The report of that consultation indicates that plaintiff "had no x-rays of her lumbar spine to date." (D.I. 11 at 234) That report also indicated that "[plaintiff] has a history of chronic low back pain but has no severe restriction of motion when tested and has no evidence of a radiculopathy on neurologic examination." (D.I. 11 at 235) Further, "examination of the lumbar spine revealed slight tenderness . . . [but] no spasm[s] detected." (D.I. 11 at 235)
Examination of the rest of plaintiff's back revealed normal results, no tenderness, and a normal range of motion. (D.I. 11 at 235) That exam also revealed that plaintiff's "hypertension does not appear to be in good control with the present medications." (D.I. 11 at 235) The report contains a "medical assessment of ability to do work-related activities (physical)." (D.I. 11 at 241-43) The assessment indicates that plaintiff can lift or carry 15 pounds, with a "maximum occasionally" rating of 25 pounds, and a "maximum frequently" rating of 5 pounds. These findings were based on plaintiff's history. (D.I. 11 at 241) That medical assessment indicates that plaintiff can stand or walk 2 hours of an 8-hour workday. (D.I. 11 at 242) Lastly, the report indicates that plaintiff can' never "climb," "balance," "stoop," "crouch," or "crawl," but that she can occasionally "kneel." (D.I. 11 at 242) This finding was based on both plaintiff's history and the physical exam. (D.I. 11 at 242)
The term "maximum occasionally" is defined as "from very little up to 1/3 or (sic] an 8-hour day." (D.I. 11 at 241)
The term "maximum frequently" is defined as "from 1/3 to 2/3 of an 8-hour day." (D.I. 11 at 241)
VI. STANDARD OF REVIEW
"The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, [are] conclusive," and the court will set aside the Commissioner's denial of plaintiff's claim only if it is "unsupported by substantial evidence." 42 U.S.C. § 405 (g); 5 U.S.C. § 706 (2)(E) (1999); see Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986) As the Supreme Court has held,
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." Accordingly, it "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.Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (quotingNLRB v. Columbian Enameling Stamping Co., 306 U.S. 292, 300 (1939)) (internal citations omitted).
The Supreme Court also has embraced this standard as the appropriate standard for determining the availability of summary judgment pursuant to Fed.R.Civ. p. 56.
The inquiry performed is the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.
Petitioners suggest, and we agree, that this standard mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict. If reasonable minds could differ as to the import of the evidence, however, a verdict should not be directed.Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 250-51 (1986) (internal citations omitted). Thus, in the context of judicial review under § 405(g),
[a] single piece of evidence will not satisfy the substantiality test if the (Commissioner] ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence — particularly certain types of evidence (e.g., that offered by treating physicians) — or if it really constitutes not evidence but mere conclusion.Brewster v. Heckler, 786 F.2d 581, 584 (3d Cir. 1986) (quotingKent v. Schwieker, 710 F.2d 110, 114 (3d Cir. 1983)). Where, for example, the countervailing evidence consists primarily of the claimant's subjective complaints of disabling pain, the Commissioner "must consider the subjective pain and specify his reasons for rejecting these claims and support his conclusion with medical evidence in the record." Matullo v. Bowen, 926 F.2d 240, 245 (3d Cir. 1990).
VII. DISCUSSION
A. Standards for Determining Disability
Congress enacted the Supplemental Security Income Program in 1972 "to assist "individuals who have attained age 65 or are blind or disabled' by setting a guaranteed minimum income level for such persons." Sullivan v. Zebley, 493 U.S. 521, 524 (1990) (citing 42 U.S.C. § 1381 (1982 ed.)). Disability is defined in § 1382c (a)(3) as follows:
(A) Except as provided in subparagraph (C), an individual shall be considered to be disabled for purposes of this subchapter if he is unable 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 twelve months.
(B) For purposes of subparagraph (A), an individual shall be determined to be 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. . . .
(D) For purposes of this paragraph, a physical or mental impairment is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.42 U.S.C. § 1382c(a)(3). Governing regulations set forth a five-step test for determining whether a claimant falls within this definition.
The first two steps involve threshold determinations that the claimant is not presently working and has an impairment which is of the required duration and which significantly limits his ability to work. See 20 C.F.R. § 416.920 (a) through (c) (1989). In the third step, the medical evidence of the claimant's impairment is compared to a list of impairments presumed severe enough to preclude any gainful work. See 20 C.F.R. pt. 404, subpt. P, App. 1 (pt. A) (1989). If the claimant's impairment matches or is "equal" to one of the listed impairments, he qualifies for benefits without further inquiry. [20 C.F.R.] § 416.920(d). If the claimant cannot qualify under the listings, the analysis proceeds to the fourth and fifth steps. At these steps, the inquiry is whether the claimant can do his own past work or any other work that exists in the national economy, in view of his age, education, and work experience. If the claimant cannot do his past work or other work, he qualifies for benefits. (20 C.F.R.] §§ 416.920(e) and (f).Sullivan, 493 U.S. at 525.
The determination whether a claimant can perform other work may be based on the administrative rulemaking tables provided in the Department of Health and Human Services Regulations ("the grids"). See Jesurum v. Secretary of Health Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Heckler v. Campbell, 461 U.S. 458, 468-70 (1983)). The grids require the ALJ to take into consideration the claimant's age, educational level, previous work experience, and residual functional capacity. See 20 C.F.R. § 404, subpt. P, app. 2 (1999). If the claimant suffers from significant non-exertional limitations, such as pain or psychological difficulties, the ALJ must determine, based on the evidence in the record, whether these non-exertional limitations further limit the claimant's ability to work. See id. § 404.1569a(c), (d). If they do not, the grids may still be used. If, however, the claimant's non-exertional limitations are substantial, the ALJ must use the grids as a "framework" only. See id. § 404, subpt. P, app. 2, § 200(d), (e). In such a case, or if a claimant's condition does not match the definition provided in the grids, determination of whether the claimant can work is ordinarily made with the assistance of a vocational specialist. See Santise v. Schweiker, 676 F.2d 925, 935 (3d Cir. 1982); see also Gauthney v. Shalala, 890 F. Supp. 401, 409 (E.D. Pa. 1995) (holding that a vocational expert is necessary when plaintiff's non-exertional impairments must be evaluated); Walker v. Harris, 504 F. Supp. 806, 811 (D. Kan. 1980) (holding that testimony from a vocational expert is necessary where the applicant possesses non-exertional problems).
The regulations list the following examples of non-exertional limitations:
(i) You have difficulty functioning because you are nervous, anxious, or depressed;
(ii) You have difficulty maintaining attention or concentrating;
(iii) You have difficulty understanding or remembering detailed instructions;
(iv) You have difficulty in seeing or hearing;
(v) You have difficulty tolerating some physical feature(s) of certain work settings, e.g., you cannot tolerate dust or fumes; or
(vi) You have difficulty performing the manipulative or postural functions of some work such as reaching, handling, stooping, climbing, crawling, or crouching.20 C.F.R. § 404.1569a(c).
B. Application of the Five Step Test
In the present case, the first step of the five part test to determine whether an individual is disabled is not at issue because plaintiff is not working. At step two, the ALJ determined that plaintiff's lower back pain is not severe, and thus concluded that plaintiff does not meet step 2 of the five-part test. (D.I. 11 at 16)
1. Plaintiff's Back Pain
The ALJ determined that, "(w]ith respect to claimant's chronic lower back pain, the evidence is that this is intermittent, is helped by medication, and does not cause physical limitations in terms of range of motion or other functions. . . ." (D.I. 11 at 15) That finding was based, inter alia, on plaintiff's medications and the two consultative reports dated August 27, 1996 and July 11, 1996. (D, I. 11 at 221, 228-43) That finding is also implicitly based on the ALJ's determination that plaintiff's complaints of pain are not credible. (D.I. 11 at 21) The ALJ found plaintiff's lower back pain "to be non-severe in that [the] condition [does] not significantly affect her ability to perform basic work related activities." (D.I. 11 at 16) See 20 C.F.R. pt. 404, subpt. P, App. 1 (pt. A). The ALJ thus concluded that plaintiff failed to satisfy step 2 of the five-step test.
Plaintiff challenges that determination as unsupported by substantial evidence. (D.I. 15 at 12-18) Specifically, plaintiff contends (1) the ALJ did not meet his duty to conduct a full and fair inquiry by not ordering an x-ray of plaintiff's back, (2) the ALJ improperly rejected the medical report of Dr. Labowitz dated August 27, 1996, and (3) the ALJ improperly rejected plaintiff's subjective complaints of pain. (D.I. 15 at 12-18)
With respect to plaintiff's claim that the ALJ failed to conduct a full and fair inquiry because no x-rays were taken of her back, that argument has no merit. The report of Dr. Labowitz indicates that although plaintiff exhibited some tenderness, there was "no severe restriction of motion when tested and has no evidence of a radiculopathy on neurologic examination." (D.I. 11 at 235) That report also indicates that plaintiff's range of motion is normal. (D.I. 11 at 235) The fact that the report indicates no x-rays had been taken of plaintiff has no implication here, because that report does not in any way indicate that an x-ray was needed to evaluate plaintiff's condition. (D.I. 11 at 234) No evidence has been proffered that could show that the physical assessment conducted by Dr. Labowitz was insufficient to reveal a disabling back problem.
Claimant's reliance on Diller v. Bowen, 654 F. Supp. 628 (W.D. Pa. 1987) is misdirected. In Diller, the court found a single hip x-ray to be insufficient in light of the claimant's persistent arthritic condition of many joints. The court relied heavily on the ALJ's focus on a lack of medical evidence, while at the same time plaintiff was unable to afford sufficient x-ray examinations. The x-ray examination that was completed inDiller consisted of a single x-ray of claimant's hip, while the claimant alleged an arthritic condition in several joints. The court explained that the ALJ has a duty to provide such examinations, so as to complete a full and fair inquiry into a claimant's condition.
In the present case, the ALJ provided for a consultative exam of the plaintiff with Dr. Labowitz following the administrative hearing. Although the ALJ rejected Dr. Labowitz's physical restriction recommendations, reliance was placed on the clinical findings of that exam. (D.I. 11 at 20) The exam reveals only moderate pain and tenderness in the plaintiff's back, and in fact Dr. Labowitz found "no severe restriction of motion when tested." (D.I. 11 at 235) The instant case is to be distinguished fromDiller, because plaintiff was provided with a complete consultive examination. The report of Dr. Labowitz did not indicate that an x-ray of plaintiff's back was necessary for a complete diagnosis. (D.I. 11 at 234-35)
Claimant asserts that the ALJ improperly rejected the report of Dr. Labowitz. Close examination of the ALJ's determination, however, reveals that only the postural limitations of Dr. Labowitz's report were rejected. (D.I. 11 at 14-22) The ALJ determined those limitations to be inconsistent with claimant's description of her daily activities as well as the clinical findings of Dr. Labowitz's report. (D.I. 11 at 20) Applicable regulations specifically allow the Secretary to consider the internal consistency of a medical report. See 20 C.F.R. § 404.1527 (d)(3)-(4), 416.927(d)(3)-(4). The postural limitations placed on plaintiff by Dr. Labowitz's assessment appear to contradict his clinical findings. Those clinical findings reveal predominantly normal functioning with only minor tenderness. (D.I. 11 at 234-43) The ALJ's determination that claimant's back pain was non-severe was therefore based on substantial evidence. See Universal Camera, 340 U.S. at 477.
Plaintiff also challenges the ALJ's rejection of plaintiff's subjective complaints of pain as incredible. "In order for an ALJ to reject a claim of disabling pain, he must consider the subjective pain and specify his reasons for rejecting these claims and support his conclusion with medical evidence in the record." Matullo v. Bowen, 926 F.2d 240, 245 (3d Cir. 1990).
In support of this conclusion, the ALJ relied on medical and testimonial evidence that plaintiff "does not take her [pain] medication as prescribed." (D.I. 11 at 19) Plaintiff received "cyclobenzaprine" medication for her back pain. (D.I. 11 at 221) At the administrative hearing, plaintiff testified that the medication "ease[es] the pain but it's a temporary situation, I mean it [does not] stop it." (D.I. 11 at 54) This statement shows that plaintiff's back pain was controlled, at least partially. The ALJ also specifically considered the clinical findings of Drs. Labowitz and Kurz in his determination. (D.I. 11 at 15, 18-19)
The ALJ determined plaintiff's subjective complaints of back pain to be "inconsistent with claimant's own description of daily activities and the medical findings." (D.I. 11 at 19) Review of the record reveals that plaintiff's testimony, particularly the description of her daily activities, is inconsistent with her complaints of disabling back pain. (D.I. 11 at 62-67) Further, the ALJ's determination makes clear that he considered not only the assessment of Dr. Labowitz, but also plaintiff's medical records as a whole. (D.I. 11 at 15, 18-19) Following this, the ALJ satisfied his burden to substantiate his rejection of subjective complaints of pain. See Matullo, 926 F.2d at 245.
The applicable regulation, 20 C.F.R. § 416.921, provides that, "[a]n impairment . . . is not severe if it does not significantly limit your physical or mental ability to do basic work activities." That regulation also lists several basic human functions used to measure a claimant's ability to perform basic work activities. Generally, the regulation lists basic motor, sensory, mental, sociological, and adaptive functions that are essential to productive work. See 20 C.F.R. § 416.921. The evidence discussed above, relied on by the ALJ in his determination, constitutes "relevant evidence [that] a reasonable mind might accept as adequate to support [the] conclusion" that plaintiff does not suffer from a severe impairment. See Universal Camera, 340 U.S. at 477.
It is clear that the ALJ based his determination that plaintiff's back condition is non-severe on a sufficiently developed record of medical evidence. That determination was also permissibly based on the ALJ's rejection of claimant's subjective complaints of pain.
2. Plaintiff' a Mental Impairment
The ALJ concluded that, "[t]he medical evidence establishes that the claimant has severe subaverage intellectual functioning and alcohol abuse, but that she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4." (D.I. 11 at 21) Plaintiff challenges this determination as not being based on substantial evidence.
At step two of the five-step test, the ALJ determined that claimant suffered from a severe mental impairment. (D.I. 11 at 21) The ALJ went on to conclude, however, that plaintiff does not meet the definition of "mental retardation" as set forth in the applicable regulations. The conditions imposed by 20 C.F.R. pt. 404, subpt. P. app. 1, § 12.05 require that 1) the mental deficit exhibit itself prior to the claimant's 22nd birthday, and 2) the mental deficit must be accompanied by additional work-related limitations of function.
a. Onset Age
The term "mental retardation" is defined in 20 C.F.R. pt. 404, Subpt. P, App. 1, § 12.05C as "significantly subaverage general intellectual functioning with deficits in adaptive behavior initially manifested during the developmental period (before age 22)." This definition, on its face, requires a compensable mental disability to have manifested itself prior to a claimant's 22nd birthday. Plaintiff asserts that her current IQ test results place her with significant subaverage intellectual functioning. Following the administrative hearing, claimant underwent a psychological evaluation with Dr. Kurz that included intelligence testing. Those test indicated a "verbal IQ of 66, a performance IQ of 62, and a full scale IQ of 63." (D.I. 11 at 229) These test results place plaintiff in the range of mild impairment. (D.I. 11 at 229)
Plaintiff contends that a legal presumption that she manifested those deficits prior to her 22nd birthday arises. The Third Circuit has yet to address the issue of whether mental deficits such as those exhibited by the plaintiff are presumed to have manifested themselves in the developmental period. There is, however, considerable precedent both within and without this circuit indicating such a presumption to be warranted. In Luckey v. Department of Health Human Servs., 890 F.2d 666, 668-69 (4th Cir. 1989), the Fourth Circuit specifically imposed such a presumption on the Secretary. The court reasoned that "there are many possible reasons why an adult would not have obtained an IQ test early in life and the absence of an IQ test during the developmental years does not preclude a finding of mental retardation predating age 22." Further, "it must be assumed that the claimant's IQ ha(s] remained relatively constant." Luckey, 890 F.2d at 668 (citing Branham v. Heckler, 775 F.2d 1271, 1274 (4th Cir. 1985)); see also Sird v. Chater, 105 F.3d 401, 402 n. 4 (8th Cir. 1997) (adopting presumption of onset during developmental period); Guzman v. Bowen, 801 F.2d 273, 275 (7th Cir. 1986) (same); Lebron v. Sullivan, No. 90-1135 (E.D. Pa. Oct. 2 1990) (same)
The ALJ, while discussing this requirement, stated that his review of the record reveals no evidence indicating plaintiff's mental impairment manifested itself prior to her 22nd birthday. (D.I. 11 at 16) Based on this finding, the ALJ concluded that plaintiff does not meet the requirements of § 12.05C. The ALJ made no mention of this presumption, nor apparently did he apply it to the case at hand. Although it is clear that the ALJ failed to take this presumption into account, because the regulations impose a two-prong test, his determination will stand if his finding of no secondary impairment was supported by substantial evidence.
b. Secondary Impairment Requirement
The applicable listing requires that the IQ test for "mental retardation" be accompanied by "a physical or other mental impairment imposing additional and significant work-related limitation of function." 20 C.F.R. Pt. 404, subpt. P, app. 1, § 12.05C. Courts have interpreted this language fairly liberally, requiring only that the secondary impairment's effect on a claimant's ability to work be "more than slight or minimal."Fanning v. Bowen, 827 F.2d 631, 634 (9th Cir. 1987); Cook v. Bowen, 797 F.2d 687, 690 (8th Cir. 1986); Nieves v. Secretary of Health Human Servs., 775 F.2d 12, 14 (1st Cir. 1985). Plaintiff at bar claims that her back condition meets the second prong of § 12.05C. The ALJ determined that "the weight of the evidence indicates that [plaintiff's back condition] does not in fact limit claimant in any significant way." (D.I. 11 at 17) The question before the court is whether the ALJ's determination meets the appropriate legal standard and is supported by substantial evidence.
During the administrative proceedings, plaintiff claimed that both her back condition and her hypertension were secondary impairments under § 12.05C.
A "Residual Physical Functional Capacity Assessment" conducted in June 1994 indicates that plaintiff could frequently carry 25 pounds and could both sit and stand and/or walk for about 6 hours in an 8 hour workday. This assessment recognized only two limitations, a "postural limitation" in that plaintiff could only "occasionally" balance, and an "environmental limitation" in that plaintiff should avoid even moderate exposure to "heights." Neither of these limitations was related in the document to plaintiff's back condition. (D.I. 11 at 155-62)
Another "Residual Physical Functional Capacity Assessment" was performed in December 1994. The findings were consistent with the June assessment, except that the only limitation noted was that of avoiding all exposure to "unprotected heights." This limitation was specifically related to plaintiff's "active alcoholi[sm and] blackouts." (D.I. 11 at 147-54)
An examination was conducted in August 1996 by Dr. Labowitz. Dr. Labowitz acknowledged plaintiff's "history of chronic low back pain" without reference to any other medical reports; it is assumed, therefore, that he accepted her subjective complaints (an oral history) of low back pain. In his evaluation, Dr. Labowitz described essentially normal functioning with slight tenderness of the lumbar spine noted. He also reported the fact that plaintiff took medication for her back pain. Despite the absence of any physiological basis for plaintiff's complaints of back pain, Dr. Labowitz imposed substantial limitations on plaintiff's ability to perform activities, citing primarily to her subjective "history." (D.I. 11 at 234-43)
Plaintiff testified at the hearing that the medication was effective in easing her pain. (D.I. 11 at 54)
The ALJ rejected Dr. Labowitz's assessment of plaintiff's physical functional capacity based on the apparent inconsistencies between the doctor's objective findings and his ultimate conclusions. See 20 C.F.R. § 404.1527 (d)(3)-(4), 416.927(d) (3)-(4). Based on the other medical evidence of record, the ALJ found that plaintiff's back pain "is intermittent, is helped by medication, and does not cause physical limitations in terms of range of motion or other functions." (D.I. 11 at 15)
The ALJ did not use the words "more than slight or minimal," instead using the language of the regulation in finding no "significant" work related limitation of function. If the regulation in fact required a "significant" limitation, as that word is commonly understood, the court would not hesitate to affirm the ALJ's determination. The regulation, however, has been interpreted to mean a limitation that is only "more than slight or minimal." Without specific guidance from the ALJ and based upon the record presented, the court cannot say with confidence that plaintiff's back condition is not "more than slight or minimal." In other words, the court concludes that reasonable minds could differ as to the import of the evidence presented, thereby precluding a finding that the ALJ's determination of nondisability is supported by substancial evidence.
Important, weighty, notable.
c. Listing 12.05B and Testing Error
According to the regulations concerning "mental retardation," a verbal, performance, or full scale IQ test result of 59 or less meets the required level of severity for awarding benefits. See 20 C.F.R. pt. 404, subpt. 2, app. 1, § 12.05B. Claimant scored a "verbal IQ of 66, a performance IQ of 62, and a full scale IQ of 63." (D.I. 11 at 229) The parties do not dispute these scores.
It also appears that IQ test results are subject to a margin of error of 5 points. See. e.g., Colavito v. Apfel, 75 F. Supp.2d 385, 402 n. 25 (E.D. Pa. 1999) (citing Halsted v. Shalala, 862 F. Supp. 86, 90 (W.D. Pa. 1994)). Claimant maintains that her IQ testing results should be adjusted downward to reflect this margin of error. Doing so would place plaintiff's scores at the 59 or less mark set by Listing 12.05B. The regulations are silent as to whether IQ scores should be adjusted downward to allow for the margin of error. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05. No controlling authority exists concerning whether this margin of error should be taken into account. The overall majority of courts that have examined this issue have refused to adjust IQ scores downward to reflect this margin of error. See Brainard v. Secretary of Health Human Servs., 25 F.3d 1055 (10th Cir. 1994) (refusing to lower IQ test scores by the standard deviation); Bennett v. Bowen, 884 F.2d 1387 (4th Cir. 1989) (rejecting argument to include 3 point margin of error);Lawson v. Apfel, 46 F. Supp.2d 941, 948 (W.D. Mo. 1998) (refusing to incorporate 5 point margin of error); Peterson v. Callahan, No. 96-2825, 1997 WL 642981, at *4 n. 6 (E.D. La. Oct. 15, 1997) (same); Bendt v. Chater, 940 F. Supp. 1427, 1431 (S.D. Iowa 1996) (holding "[i]ncorporating a five point measurement error into a claimant's IQ test results would effectively expand the requisite IQ"); but see Hampton v. Apfel, No. 97-6651, 1999 WU 46614, at *2 (E.D. Pa. Jan. 6, 1999) (incorporating 5 point margin of error); Halsted, 862 F. Supp. at 90 (same). Although the authority mentioned above deals with Listing 12.05C, there is no reason why the rationale employed should change when applied to Listing 12.05B, because both sections deal with IQ test results. This court agrees with the proposition that the margin of error associated with IQ tests should not be taken into account.
Plaintiff's verbal IQ score would remain above the 59 scoring limitation.
3. Past Relevant Work and Substantial Evidence
Claimant contends that the ALJ erred in determining that plaintiff is able to return to her past relevant work. The argument, however, is based entirely on alleged points of error that this court has already addressed.
VIII. CONCLUSION
For the reasons stated above, the court shall grant plaintiff's motion and deny the Commissioner's motion. An appropriate order shall issue.