Opinion
Civ. No. 99-1083.
February 3, 2000.
REPORT AND RECOMMENDATION
This cause is before the Court on the Plaintiff Wolstenholme's Motion for Summary Judgment (d/e 9) and the Commissioner's Motion for Summary Judgment (d/e 12). Pursuant to 42 U.S.C. § 405(g), Plaintiff seeks review of the Social Security Commissioner's final decision denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI").
I. Procedural Background
Plaintiff Wolstenholme applied for DIB and SSI on July 18, 1996, alleging disability due to multiple factors. (Tr. 527-29). After initial denials at the lower levels, Plaintiff then requested a hearing before an ALJ. On September 30, 1997, Plaintiff appeared with counsel and testified before ALJ Peter Caras. (Tr. 68-103). Plaintiff's mother and a vocational expert also testified.
On October 25, 1997, the ALJ denied Plaintiff's claim after determining that he was capable of performing a significant number of jobs in the national economy. (Tr. 21-30). On February 19, 1999, the Appeals Council denied Plaintiff's request for review. (Tr. 10-11). This action followed.
II. Facts
Plaintiff was 33 years old at the time of the ALJ's decision. (Tr. 21). He completed the ninth grade in special educations classes and previously worked as a cook, garbage collector, house cleaner, car wash attendant, and material handler. (Tr. 293, 416, 475).
This case is Plaintiff's second claim for benefits. His first claim was denied and the Court is not reviewing the prior denial. With regard to the current claim, Plaintiff has alleged that he has been disabled since March 17, 1996. (Tr. 398). Thus, the Court will only consider evidence which relates to the March 17, 1996 onset date, and will treat evidence prior to that date as background information.
A. Medical Evidence
On April 24, 1994, in connection with his prior applications for DIB and SSI, Plaintiff underwent a consultive psychological examination with Dr. Alan Jacobs. (Tr. 283-287). Dr. Jacobs administered the Weschler Adult Intelligence Scale-Revised ("WAIS-R") on which Plaintiff received a verbal IQ score of 71, a performance IQ score of 67, full range score of 67. Dr. Jacobs also noted that Plaintiff had problems with school, poor reading skills, significant short-term memory impairments, and alcohol abuse. (Tr. 283-285). However, on May 24, 1994, Dr. Jacobs, without explanation, changed Plaintiff's IQ scores to 71 verbal, 77 performance, and 71 full scale.
Plaintiff fell and received a severe closed head injury after falling 8 to 10 feet off a ladder on June 8, 1994. (TR. 239). As a result of the fall, Plaintiff had to undergo immediate surgery to evacuate a subdural hematoma.
One week later, Plaintiff started physical and occupational therapy, as well as speech and neurologic rehabilitation. (Tr. 246). Upon discharge, doctors indicated that Plaintiff had some cognitive memory and problem solving difficulties, but that he had improved. (Tr. 243).
On September 30, 1994, Dr. Edward Posuniak reported that Plaintiff was progressing very satisfactorily. (Tr. 282). His seizures were managed with Dilantin, but he complained of headaches. (Tr. 282). Dr. Posuniak's impression was "continued resolution of Plaintiff's traumatic brain injury with residual left monoparesis involving the left lower extremity." (Tr. 282). In March of 1995, Dr. Posuniak reported that Plaintiff had made excellent recovery from his head injury, but was being evaluated for continuing spasms and clonus in his left leg. (Tr. 300) After an exam, Dr. Posuniak concluded that Plaintiff had a resolved traumatic brain injury with only mild left hemiparesis with non-sustained clonus. (Tr. 300).
On May 30, 1995, Plaintiff saw Dr. Dietra Teichmann, a psychologist, for a neuropsychological evaluation. (Tr. 307). On the WAIS-R, Plaintiff achieved an estimated score of 76 on verbal IQ, 76 on the performance IQ, and a full scale IQ of 75. (Tr. 312). Dr. Teichmann opined that Plaintiff's ability to pay attention and concentrate was mildly impaired, and was functionally illiterate. (Tr. 315, 318). Her impression was organic personality syndrome, and she opined that due to Plaintiff's memory difficulties, he would have difficulty learning a new job. (Tr. 321). Lastly, she recommended that Plaintiff would do best in a sheltered workshop type of a position. (Tr. 321).
On September 12, 1996, Plaintiff underwent a consultative psychological examination with Dr. Harold Benner. (Tr. 503-08). Plaintiff indicated to Dr. Benner that he started drinking alcohol at the age of 13, and had lost jobs as a result of the drinking. Plaintiff also indicated that he heard voices two or three times a week, and saw visual hallucinations of "motions or movements." He supported himself by mowing lawns, and that his hobby was fixing cars. (Tr. 503).
On the Wide Range Achievement Test ("WRAT"), Plaintiff scored a 5.4 grade level in reading. (Tr. 505). On the WAIS-R, Plaintiff achieved a verbal IQ score of 74, a performance IQ of 73, and a full scale IQ of 73. (Tr. 506). Dr. Benner opined that Plaintiff had problems with sleep, alcohol, and cannabis dependence, and that his physical, intellectual, social and emotional problems would limit his ability to understand, concentrate, adapt to new situations, and be persistent. (Tr. 508).
On October 5, 1996, Plaintiff underwent a consultative examination with Dr. Stanley Rabinowitz. (Tr. 509-11). Dr. Rabinowitz noted that Plaintiff walked normally without any assistive devices, and that his range of motion testing of Plaintiff's joints and spine was normal. (Tr. 510). Plaintiff's reflexes and sensation were normal, and his motor strength was intact. (Tr. 511).
On March 10, 1997, Plaintiff was referred to Human Service Center for depression counseling. (Tr. 515). He was recently released from the psychiatric unit at St. Francis hospital for a self-inflicted cut on the wrist. (Tr. 515). Plaintiff did not go undergo a formal mental status examination, but the clinician, Craig Burgess, reported that Plaintiff appeared somewhat depressed. (Tr. 516). Mr. Burgess rated Plaintiff's overall level of functioning as having major impairment, and recommended psychological treatment. (Tr. 517).
On May 21, 1997, Plaintiff began treatment with Gary Anderson, M.A. (Tr. 520). After meeting with Plaintiff, Mr. Anderson concluded that Plaintiff did not have clinical depression, but that his drinking history and head injury were the problems. (Tr. 520).
B. Other Evidence
Plaintiff testified that he had last worked a year ago, but was fired after having a seizure. (Tr. 73-74). He was currently on Dilatin and Depakote and was compliant with the prescriptions. Plaintiff indicated that his worst problem was losing track of what people were saying, and that he had experienced this problem ever since he fell on his head in June of 1994. (Tr. 77). He testified that at that time, he drank only a little beer, and had recently stopped using marijuana. (Tr. 77-78). He also testified that the alcohol in and of itself would not prevent him from working. (Tr. 78).
He testified that he was not receiving any psychological treatment and had not recently had any seizures. (Tr. 80). Plaintiff described a typical day as tinkering around the yard and helping his grandparents with yard work and groceries three or four times a week. (Tr. 83-85). He stated that he cooked, cleaned, took out the trash, and did dishes, but that yard work was his main activity. (Tr. 85-86). Plaintiff testified that he liked working on cars and fishing, and that he went fishing four or five times a year in Minnesota. (Tr. 86-87). He also testified that he could take care of his personal needs. (Tr. 88).
With regard to his other medical problems, Plaintiff testified that his left leg tremors would come and go and made it hard to walk. (Tr. 90). He also had problems with severe headaches, and that he would relieve his headaches with Tylenol and by applying pressure. (Tr. 91).
Plaintiff's mother testified that Plaintiff got along with people pretty well, but that small things would sometimes irritate him. (Tr. 92). She stated that Plaintiff had trouble remembering things and with reading. (Tr. 93-94).
Lastly, Dennis Gustafson, a vocational expert ("VE"), testified at Plaintiff's hearing. The ALJ asked the VE about job possibilities for a hypothetical individual of Plaintiff's age with a limited education who could not climb ladders, ropes, or scaffolds and needed to avoid concentrated exposure to unprotected heights and hazardous machinery. (Tr. 96). The VE testified that the hypothetical individual was capable of performing only unskilled work, had occasional deficiencies in concentration and attention, and could handle only occasional interaction with co-workers, the public and supervisors. (Tr. 96). The VE further testified that such an individual could perform Plaintiff's past job as a car attendant, as well as 23,020 jobs as a hand packager; 11,398 jobs as an industrial laborer; and 64,228 jobs as an industrial assembler in the State of Illinois. (Tr. 96-97).
C. ALJ's Findings
The ALJ found that:
1. The Claimant (Wolstenholme) met the disability insured status requirements of the Act on March 17, 1996, the date the claimant stated he became unable to work, and continued to meet them through the date of the decision.
2. The Claimant has not engaged in substantial gainful activity since March 17, 1996.
3. The medical evidence established that the claimant has the following impairments: history of closed head injury with subsequent evacuation of a subdural hematoma and consequent seizure disorder and memory impairment, and alcohol and marijuana abuse. The claimant had an impairment or combination of impairments which is "severe" within the meaning of the Social Security Act and Regulations.
4. The claimant does not have an impairment or combination of impairments listed in, or medically equivalent to an impairment listed in, the Listing of Impairments (Appendix 1, Subpart P, Regulations No. 4.)
5. The claimant's statements regarding his subjective symptoms and functional limitations are not fully supported by the medical evidence and are not fully consistent with his daily activities and treatment history, and therefore are not fully credible.
6. The claimant has the residual function capacity to perform the non-exertional requirements of work except for work requiring any climbing of ladders, ropes, or scaffolds, exposure to hazardous machinery or unprotected heights. He is further limited to unskilled work which would not be precluded by occasional deficiencies of attention and concentration. There are no exertional limitations. ( 20 C.F.R. § 404.1545 and 416. 945).
7. The claimant is unable to perform any past relevant work.
8. On March 17, 1996, the claimant was 31 years old, which is defined as a younger individual. ( 20 C.F.R. § 404.1564 and 416.964).
9. The claimant has limited education. ( 20 C.F.R. § 404.1564 and 416.963).
10. The claimant does not have any acquired work skills which are transferable to the skilled or semi-skilled work functions of other work that is within his residual functional capacity. ( 20 C.F.R. § 404.1568 and 416.968).
11. If the claimant's non-exertional limitations did not significantly compromise his ability to perform work at all exertional levels, Rule 204.00, Appendix 2, Subpart P, Regulations No. 4 indicates that a finding of not disabled would be appropriate. If his capacity to work at all levels were significantly compromised, the remaining work which he would functionally be capable of performing would be considered in combination with his age, education, and work experience to determine whether a work adjustment could be made.
12. Considering the types of work which the claimant is still functionally capable of performing in combination with his age, education, and work experience, he can be expected to make a vocational adjustment to work which exists in significant numbers in the national economy.
13. The claimant has not been under a "disability," as defined in the Social Security Act, at any time from March 17, 1996, through the date of this decision. ( 20 C.F.R. § 404.1520(f) and 416.920(f)).
III. Analysis
A. Legal Standard of Review
In order to be entitled to DIB and/or SSI, the claimant generally must show that his inability to work is medical in nature and that he is disabled. DIB is meant only for sick or disabled persons and are not intended to be a surrogate unemployment insurance or a welfare program. Thus, economic conditions, personal factors, financial considerations, and attitudes of employers are irrelevant in determining whether the claimant is eligible for DIB and/or SSI.
The framework used to demonstrate the existence of a disability is well established. A plaintiff/claimant is required to present evidence of a medically determinable mental or physical impairment that 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).
The Social Security Regulations provide the well-known five step evaluation used to determine the existence of a disability. The steps are examined in order as follows:
1. Is the claimant presently employed?
2. Is the claimant's impairment "severe?"
3. Does the impairment meet or exceed one of a list of specified impairments?
4. Is the claimant able to perform his former work?
5. Is the claimant able to perform any other work in the national economy? 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920; Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
If the claimant can satisfy steps one, two, and three, he "will automatically be found disabled." Knight, 55 F.3d at 313. If the claimant "satisfies steps one and two, but not three, then he must satisfy step four." Id. If the claimant satisfies step four, the burden shifts to the Commissioner to establish that the claimant is capable of performing other work in the national economy, i.e. step five. Id. If the Commissioner establishes that the claimant can perform other work in the national economy, DIB and/or SSI will be denied.
Section 205(g) of the Social Security Act requires that the Secretary's findings must be upheld if they are supported by substantial evidence. 42 U.S.C. § 405(g) (1991). "Substantial evidence" is less than a preponderance but "more than a mere scintilla," and means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Lee v. Sullivan, 988 F.2d 789, 792 (7th Cir. 1993) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); Green v. Shalala, 51 F.3d 96, 100-01 (7th Cir. 1995).
B. Plaintiff's Arguments
Plaintiff essentially challenges steps three and five of the sequential analysis. First, Plaintiff argues that the ALJ failed to fully evaluate Plaintiff's mental impairments and did not evaluate whether Plaintiff equaled Listing 12.05, and did not summon a medical advisor to give testimony of equivalence at step three of the sequential evaluation. Specifically, he argues that although the ALJ acknowledges in his decision that if Plaintiff has a Listing level impairment Plaintiff must be found disabled, the ALJ failed to discuss whether Plaintiff has a condition which meets or medically equals one of the listed impairments. The Court disagrees.
When evaluating the medical equivalence, the Code of Federal Regulations require the ALJ to compare the Plaintiff's "symptoms, signs and laboratory findings" of his impairment, as shown by the medical evidence, to a listed impairment, and if it is not listed, to the closest resembling listed impairment. See 20 C.F.R. § 404.1527(a). The ALJ evaluated Plaintiff under 12.02-Organic Disorders, and 12.09-Substance Addiction Disorders, and found that Plaintiff's impairment was not comparable. (Tr. 25). Although Plaintiff does not dispute these findings, he appears to argue that the ALJ should have evaluated him under 12.05-Mental Retardation and Autism. As evidence that Plaintiff's symptoms equaled the impairment listed in 12.05, Plaintiff points to his WAIS-R test score of 67 in 1994, two years before his onset date. The ALJ correctly determined that Plaintiff did not suffer from an impairment under 12.05.
First, the Court notes that the comparison must be made based on medical evidence. See 20 C.F.R. § 404.1526(b). Thus, if there is no medical evidence which suggests that Plaintiff has an impairment which equals the impairment listed in Appendix 1, § 12.05, the ALJ was not required to compare them. That being said, in order to raise an error, Plaintiff must show that he suffered from an impairment which equaled one listed in § 12.05. The Court finds nothing in the record which supports Plaintiff's argument.
The IQ score Plaintiff relies on is contradicted by Dr. Jacob's later revision of the score. In the revision, Plaintiff scored a full scale score of 72. See (Tr. 287). During the time period near the onset date, other doctors opined that Plaintiff's full scale IQ was 73. (Tr. 506). Based on Plaintiff's scores, he did not automatically meet the severity requirement in § 12.05. That section requires a WAIS-R score of something less than 70. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(B)-(D). The medical evidence suggested that Plaintiff was above the limit, and the record lacks any evidence to the contrary. In addition, the record does not suggest that Plaintiff depended on others for personal needs, as stated in § 12.05(a). None of the doctors opined that Plaintiff could not take care of himself. In fact, Plaintiff himself testified that he could perform such functions as grocery shop, work on cars, and other household chores. (Tr. 83-85).
Based on this evidence, the Court finds that the ALJ did not err by not comparing Plaintiff's impairments with the one listed in § 12.05. Further, the Court finds that the ALJ's assessment of Plaintiff's impairments with § 12.02 and 12.09 was supported by substantial evidence in the record.
As to Step five of the sequential analysis, Plaintiff argues that the VE's expert testimony was insufficient to support a finding that Plaintiff could perform other kinds of gainful employment which exists in the national economy, because the hypothetical given to the VE did not include all of Plaintiff's impairments. Specifically, Plaintiff argues that the ALJ's hypothetical did not include any exertional limitations, or Plaintiff's borderline intellectual functioning.
Initially, the Court notes that a vocational expert's testimony is not required or even an essential part of a disability benefits hearing. See Ehrhart v. Secretary of Health and Human Services, 969 F.2d 534, 540 (7th Cir. 1992). Next, the Seventh Circuit has held that in order for a hypothetical to be valid, it need not contain every impairment which the claimant asserts, as long as the question reflects the claimant's impairments to the extent the ALJ found them supported by the record. See id. (Citing Meredith v. Bowen, 833 F.2d 650, 654 (7th Cir. 1987) ("All that is required is that the hypothetical question be supported by the medical evidence in the record.") Therefore, the question becomes whether the ALJ's decision not to include the limitations in the hypothetical was because the limitations were not supported by substantial evidence in the record.
In other words, whether the ALJ properly rejected the limitations as suggested by Plaintiff by not including them in the hypothetical.
The Court finds that the ALJ properly rejected Plaintiff's claim of exertional limitations. None of the examining physicians have opined that Plaintiff was limited to medium work. See e.g., (Tr. 282, 299-300). Dr. Rabinowitz opined that Plaintiff had normal range of motion in his spine and joints. (Tr. 509-11). Moreover, Plaintiff's testimony regarding his daily activities-e.g., doing yard work and grocery shopping-is consistent with the ALJ's finding that Plaintiff was not exertionally limited. The evidence presented simply does not support Plaintiff's contention that he has an exertional limitation. Accordingly, the ALJ did not err by excluding such limitations from the hypothetical.
With regard to the borderline intellectual functioning, the ALJ did limit the hypothetical to include some of Plaintiff's limitations, such as education, deficiencies in attention and concentration. (Tr. 96). Even if this was insufficient, the ALJ's restrictions were consistent with the medical evidence. The medical evidence suggests that Plaintiff is capable of performing simple one or two step work despite his impairments, and that Plaintiff had only moderate psychological symptoms. (Tr. 442, 508).
The ALJ also properly discredited Dr. Teichmann's opinion since it conflicts with the evidence mentioned above. Moreover, Dr. Teichmann's report does not appear to pertain to Plaintiff's condition during the time period after the onset date, March 16, 1996.
The ALJ's findings as to Plaintiff's limitations were properly supported by substantial evidence in the record. In turn, the Court finds that the hypothetical posed by the ALJ sufficiently contained Plaintiff's limitations as the ALJ found them to be supported by the evidence. Accordingly, the Court finds no error in the ALJ's decision to rely on the vocational expert's opinion to satisfy his burden under step five of the sequential analysis.
Lastly, Plaintiff argues that the ALJ prevented him from properly cross-examining the VE as to additional limitations and deprived him an opportunity to present evidence of additional limitations, in violation of due process. During the cross-examination of the VE, Plaintiff's attorney asked the VE the following:
Q: Let me ask you a couple of questions. Perhaps this is unusual. You've seen the files and you've worked with head injury individuals in the past, have you not?
A: Yes, I have.
Q: Are there any other additional restrictions or concerns that you would have in looking at his medical history that would be incorporated in that —
[At this point, the ALJ interrupted and limited the questioning in the form of a hypothetical.]
Plaintiff cites Ehrhart v. Secretary of Health and Human Services, 969 F.2d 534 (7th Cir. 1992), and Ragsdale v. Shalala, 53 F.3d 816 (7th Cir. 1995) for the proposition that Plaintiff should be able to inquire into the additional hypothetical restrictions the VE considered in the determination. The Court agrees that the cases cited stand for the proposition that Plaintiff may inquire into the basis for the VE's response when answering the hypothetical question posed by the ALJ. However, the Court finds that the question posed by Plaintiff did not go to the basis of the VE's expert opinion, but rather, asked the VE to give an opinion as to additional relevant limitation based on his own review of the record and past experiences with similar cases. In effect, Plaintiff wants the VE to point out additional limitations that he feels should have been included in the hypothetical.
To the extent Plaintiff argues that the hypothetical posed by the ALJ is deficient, the Court finds no error, since the VE was present during Plaintiff's testimony regarding his abilities. As such, the VE was aware of the additional limitations of the Plaintiff.
Vocational experts are not consulted for their medical expertise. It is the responsibility of the ALJ to determine what a claimant's impairments and limitations are. See Ragsdale, 53 F.3d at 819. To that end, in forming a hypothetical, the ALJ and not the VE, has discretion in determining which impairments are supported by the record. Thus, the Court finds that the question posed by Plaintiff was not in proper form, and the ALJ properly excluded it.
Since the Court holds that the question was improper, the Court also rejects Plaintiff's argument that his inability to question the VE resulted in a deprivation of due process. Moreover, the Court notes that the ALJ permitted Plaintiff to cross-examine the bases of the VE's conclusions through the use of an alternate hypothetical. (Tr. 102). Thus, the Court concludes that Plaintiff was not deprived a meaningful opportunity to confront witnesses.
In sum, the Court finds that the ALJ's findings and conclusions are supported by substantial evidence in the record.
Wherefore, the Court recommends that the Plaintiff's Motion for Summary Judgment (Reversal) (d/e 9) be denied, and Defendant's Motion for Summary Judgment (Affirmance) (d/e 12) be allowed.
The parties are advised that any objection to this Report and Recommendation must be filed in writing with the Clerk of the Court within ten working days after being served with a copy of this Report and Recommendation. See 28 U.S.C. § 636(b)(1). Failure to file a timely objection will constitute a waiver of objections on appeal. Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986). See also Local Rule 72.2.