June 26, 2000
REPORT AND RECOMMENDATION
Plaintiff brings this action pursuant to 42 U.S.C. § 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security denying his claim for supplemental security income benefits. This action has been referred to the Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Upon consideration of the administrative record, as supplemented, plaintiffs proposed report and recommendation and motion to remand for new and material evidence, the Commissioner's proposed report and recommendation and response to plaintiffs sentence six motion to remand, and the arguments of the parties at the June 22, 2000 hearing before the Magistrate Judge, it is determined that the decision to deny benefits should be affirmed.
Plaintiff alleges disability due to a somatoform disorder. The Administrative Law Judge (ALJ) determined that "[t]he claimant has the residual functional capacity to perform the physical exertion and nonexertional requirements of work except for lifting and/or carrying objects weighing more than 20 pounds, frequently lifting and/or carrying objects weighing more than 10 pounds, constantly standing without an opportunity to shift his weight, and he has a somatization disorder that results in slight restriction of activities of daily living, slight difficulties maintaining social functioning, and in his seldom experiencing deficiencies of concentration, persistence or pace." (Tr. 28, Finding No. 4) The ALJ concluded that even though plaintiff cannot perform his past relevant work he is capable of performing those jobs identified by the vocational expert at the administrative hearing. (See Tr. 28-29, Findings 5, 6 11) The Appeals Council affirmed the ALJ'S decision (Tr. 4-6) and thus, the hearing decision became the final decision of the Commissioner of Social Security.
In all Social Security cases, the claimant bears the burden of proving that he is unable to perform his previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). In evaluating whether the claimant has met this burden, the examiner must consider the following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; and (4) the claimant's age, education and work history. Id. at 1005. Once the claimant meets this burden, as here, it becomes the Commissioner's burden to prove that the claimant is capable, given his age, education and work history, of engaging in another kind of substantial gainful employment which exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985).
The task for the Magistrate Judge is to determine whether the Commissioner's decision to deny claimant benefits, on the basis that he can perform the reduced range of light work identified by the vocational expert (VE) and is therefore not disabled, is supported by substantial evidence. Substantial evidence is defined as more than a scintilla and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). "In determining whether substantial evidence exists, we must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
This Court's review of the Commissioner's application of legal principles, however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
The plaintiff claims that the ALJ improperly evaluated his nonexertional limitations and as a consequence of this failure posed an incomplete hypothetical question to the vocational expert (VE). In addition, plaintiff contends in his brief, and his motion to remand for consideration of new and material evidence, that the Appeals Council erred in failing to remand his case to the ALJ for consideration of new evidence relating to his mental impairment.
The undersigned first considers whether the ALJ'S decision denying benefits is supported by substantial evidence based solely upon the evidence that was before the ALJ when he made his decision. Thereafter, the undersigned will consider whether a remand is necessary so that an ALJ can consider the new evidence submitted to the Appeals Council.
A. Plaintiff's Nonexertional Limitations . Plaintiff contends that the ALJ erred in failing to find that his nonexertional limitations include that he often has deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner in work settings and elsewhere, as reflected in the records of two non-examining physicians (Tr. 117 137), and that he has had repeated episodes of deterioration or decompensation in work or work-like settings which have caused him to withdraw from that situation or to experience exacerbation of signs and symptoms, as reflected in the records of one-time examiner Dr. Claude Brown (Tr. 217). According to plaintiff, the ALJ'S failure to recognize these nonexertional limitations amounts to a rejection of these physicians' opinions in their entirety and substitution of his own medical opinion. See Marbury v. Sullivan, 957 F.2d 837, 840-841 (11th Cir. 1992) ("An ALJ may, of course, engage in whatever idle speculations regarding the legitimacy of the claims that come before him in his private or personal capacity; however, as a hearing officer he may not arbitrarily substitute his own hunch or intuition for the diagnosis of a medical professional."). The undersigned disagrees.
The findings by the non-examining physicians that plaintiff has often had deficiencies of concentration, persistence or pace (Tr. 117 137) is at odds with Dr. Brown's finding that plaintiff has seldom had deficiencies of concentration, persistence or pace (Tr. 217) and therefore, the undersigned finds no error in the ALJ'S rejection of the non-examiners' evidence in favor of the evidence of Dr. Brown in this regard. "`The opinions of nonexamining, reviewing physicians, . . . when contrary to those of examining physicians are entitled to little weight in a disability case, and standing alone do not constitute substantial evidence.'" Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988), quoting Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987). Therefore, the undersigned finds the ALJ'S finding that plaintiff seldom experiences deficiencies of concentration, persistence or pace (Tr. 28) supported by substantial evidence.
Turning to Dr. Brown's finding that plaintiff has repeatedly (i.e., on three or more occasions) had episodes of deterioration or decompensation in work or work-like settings which caused him to withdraw from that situation or to experience exacerbation of signs and symptoms (Tr. 217), the undersigned agrees with the ALJ that this particular finding is inherently inconsistent with Brown's finding that plaintiff has seldom had deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner in work settings and elsewhere and with plaintiffs own testimony that he worked full time despite sleeping problems, nightmares, anger, depression and the post traumatic stress disorder (Tr. 81-83). In fact, it is clear from the record that it was nothing other than an episode of Bell's palsy (not a stroke) that caused plaintiff to withdraw from working full time in 1996 and to not perform full-time work since then due to the tension and pain he has experienced since that episode of Bell's palsy in the woods. (Tr. 59-62, 64-65, 69 76-77) In other words, there is no evidence of record which would support Dr. Brown's finding that plaintiff has repeatedly had episodes of deterioration or decompensation in work or work-like settings related to his mental condition; rather, the most that can be said of the evidence is that plaintiff stopped working because of a physical deterioration while working but never due to a mental deterioration or decompensation. Accordingly, the ALJ'S rejection of Dr. Brown's opinion in this regard is found to be supported by substantial evidence.
It is interesting to note that in response to specific questions posed by the ALJ and. plaintiffs counsel, the vocational expert testified that three instances of deterioration or decompensation easily could be accommodated from a vocational standpoint. ( See Tr. 96-97) Therefore, even if this Court were to find that the ALJ erred in totally rejecting Dr. Brown's opinion such an error would be found to be harmless since nothing of record would indicate that plaintiff has had more than three episodes of deterioration or decompensation and thus, there is no basis upon which to find that plaintiffs problems in this area could not be accommodated by an employer.
B. RFC Determination and Hypothetical Question to the VE .The ALJ posed the following hypothetical to the VE at the September 16, 1997 administrative hearing:
I'm going to pose a hypothetical individual to you. And this hypothetical individual is 48 years of age, licensed driver, had a stable marriage for the past 25 years, is literate, can read and write, served honorably in the United States Army, was in the, the area of combat he was a cook, wasn't combattype. He, he worked — good work record, driving trucks, logger, skidder, chipper. Always out there working, physically, without a doubt. This is an individual who has Bell's Palsy and a lot of somatoform complaints. He has — in his somatoform complaints, you know, it's hard to, because of the nature of them, and you know that's tough. It really is. And he said, well they're somatogate (Phonetic). They're really him. They're really him. And that's how you have to look at it. You know, the psychiatrist can say they're not real, and he says they are real. But he's been examined by a psychiatrist, and the psychiatrist looked at him and said that he's a well developed, well nourished male. Appears his [stated] age, station [and] gait are normal, no restriction of any motion noted, no psychotic ideations. He seems like he's a clear, coherent fellow. And that's my impression too. I am not — no problems with that. His intellectual abilities [are] normal, and he has no insight, in which is — where we're going, he views himself as incapacitated by a host of varied complaints. And his judgment is fair, he's not confused, nor is there any disorientation. Competent to manage his affairs. He has in his functional assessment, the RFC's except for episodes of deterioration and decompensation in work or work-like settings, which cause the individual to withdraw from the situation or experience exacerbation of signs and symptoms. And these will be repeated. More than on[c]e or twice. Not continual, but repeated with three or more, whatever that may mean. And moderate inability to respond appropriate[ly] to the customary work p[ressures]. . . . The neurological examination is normal, and there are no limiting factors from the Bell's Palsy that translate into — thought it was that way with no limitations on his physical actions. The neurologist thinks that he can sit, stand, and walk for eight hours each. He can continuously go up to 25 pounds and frequently up to 100, that's lift[ing] and carry[ing] with no other restrictions. And no, no non-exertional at all. But since we're talking about a somatoform problem, I have to put that in my hypothetical. And the somatoform complaints, none of it is standing. Walking — standing requires the ability to shift from foot to foot. No problem with reaching. He can pick up to 25 pounds. He can drive up to 35 miles. And he feels limited on two areas, climbing stairs and heat. Those are non-exertionals. And since those are limitations, they're self-imposed, but I assume that they're real. The — and that's what we have to assume. So, that's going [to] limit him. And if we're talking about lifting up to 25 pounds, carrying 25 pounds, it's going to pull them to light.
(Tr. 90-92 92-93) In response to this convoluted and somewhat confusing hypothetical, the VE identified numerous light work that such a hypothetical individual can perform along with the numbers of those jobs existing in the local, state and national economies. (Tr. 94-96)
Plaintiff contends that the ALJ's failure to consider the documented level of severity of his somatization disorder on his ability to function makes incomplete the hypothetical question posed to the VE by the ALJ. As aforesaid, the ALJ correctly failed to credit the concentration, persistence and pace limitation noted by the two nonexamining physicians and the deterioration and decompensation limitation noted by Dr. Brown and therefore, the undersigned does not find the ALJ'S question to the hypothetical incomplete. See Pendley v. Heckler, 767 F.2d 1561, 1562 (11th Cir. 1985). The undersigned recognizes that the ALJ included in his hypothetical to the VE Brown's deterioration and decompensation limitation only to reject that limitation in his decision; however, no error was committed by the ALJ in this regard.
Plaintiff makes no argument regarding the exertional findings contained in the ALJ's hypothetical (Tr. 92), undoubtedly because those findings are supported by substantial evidence (Tr. 69-72 (plaintiff s testimony regarding his physical abilities); Tr. 223 (July 14, 1997 physical capacities evaluation by neurologist Dr. John G. Yager); Tr. 252 (September 22, 1997 functional limitations from completed by Dr. Kathryn Pitman)).
C. New Evidence . Plaintiff filed his application for supplemental security income benefits on September 9, 1996 (Tr. 102-104) and has been represented by Brenda Pierce, Esquire, since on or about December 5, 1996 (Tr. 43). The administrative hearing was conducted on September 16, 1997 (Tr. 46) and the ALJ'S decision denying plaintiff benefits bears a date of January 28, 1998 (Tr. 30). On March 2, 1998, plaintiffs counsel filed a request for review of the ALJ'S decision (Tr. 9-10) and later submitted in support of the request for review the results of a July 22, 1998 evaluation performed by clinical psychologist Dr. Daniel L. Koch (Tr. 256-261) and a memorandum of law (Tr. 262-265).
In its July 2, 1999 decision, the Appeals Council denied plaintiffs request for a review of the hearing decision. (Tr. 4-6)
The Appeals Council has . . . considered the contentions raised in your representative's letter dated February 9, 1999. In determining the residual functional capacity, the Administrative Law Judge considered the medical findings and medical opinion of record with respect to all of your impairments, as well as your statements regarding your functional abilities, and his finding in this regard is supported by substantial evidence.
The Administrative Law Judge further considered the impact of your symptoms within the guidelines of 20 C.F.R. § 416.929 and Social Security Ruling 96-7p, and evaluated the credibility of the statements regarding your symptoms in light of all the evidence. Specifically, contrary to your representative's contentions, and as indicated above, the Administrative Law Judge's mental limitation findings (Finding #6) appear supported by the substantial evidence of record, including the psychiatric consultative examination findings at Exhibit 12. With reference to the new evidence from Dr. Koch, as indicated in the summary of his report, Dr. Koch found only a mild neuropsychological impairment. The subtests reported by Dr. Koch indicative of severe neuropsychological damage are not corroborated by clinical observations and seem at odds with your reported level of functioning including your belief that you could work as a truck driver but for the strain involved. The low average IQ scores found by Dr. Koch are commensurate with your ability to engage in the unskilled alternate work identified by the vocational expert. As noted by the Administrative Law Judge, there is no evidence that the somatization disorder, as also diagnosed by Dr. Brown, has resulted in any episodes of decompensation. As also noted by the Administrative Law Judge, you have complained of nightmares. However, the record does not indicate that you have followed up with any continuing treatment for a severe mental impairment or reports of continuing intrusive flashbacks which significantly interferes with your ability to work.
Plaintiff contends in his statement of issues that the Appeals Council erred in failing to remand this case for further development of his mental impairment and further testimony of a vocational expert based upon a hypothetical question which incorporates the findings of both Dr. Koch and Dr. Brown.
In Keeton v. Department of Health Human Services, 21 F.3d 1064, 1067 (11th Cir. 1994), the Eleventh Circuit held that "new evidence first submitted to the Appeals Council is part of the administrative record that goes to the district court for review when the Appeals Council accepts the case for review as well as when the Council denies review." Thus, under 42 U.S.C. § 405(g), this Court may remand this case to the Commissioner of Social Security for consideration of new evidence if the court finds that the new evidence is material and that good cause exists for Byrd's failure to incorporate this evidence into the record in the proceedings before the ALJ. In other words, in order to be entitled to a remand the plaintiff must establish that: (1) there is new, noncumulative evidence; (2) the evidence is material, that is, relevant and probative so that a reasonable probability exists that it would change the administrative result; and (3) good cause exists for the failure to incorporate the evidence into the record in the proceedings before the ALJ. See Keeton, supra, 21 F.3d at 1067-1068.
While Dr. Koch's report constitutes new non-cumulative evidence and there is good cause for the failure to present same to the Appeals Council, as implicitly admitted by the defendant ( see Doc. 21, at 30 ("However, this new evidence does not justify a remand because it is not material; therefore, it does not meet the second prong of the Falge analysis.")), the undersigned agrees with the defendant that the plaintiff has not shown that this evidence is material. The materiality prong of the new-evidence standard can be established where the evidence is relevant and probative so that a reasonable probability exists that it would change the administrative result. The materiality prong of the new evidence standard has not been established in this case as reflected in the Appeals Council decision. ( See Tr. 5) The undersigned would simply add to the Appeals Council's analysis of this evidence that nothing in Koch's report leads the undersigned to believe that the VE'S testimony would have been any different had Koch's mild findings ( see Tr. 260 (low average intelligence mild neuropsychological impairment)) been incorporated into the hypothetical posed by the ALJ. See Smith v. Bowen, 792 F.2d 1547, 1550 (11th Cir. 1986) ("Each time a claimant undergoes new medical treatment, the results of the treatment do not automatically necessitate a remand of the case."); Caulder v. Bowen, 791 F.2d 872, 876 (11th Cir. 1986) ("We agree with the Fifth Circuit's observation that `not every discovery of new evidence, even if relevant and probative, will justify a remand to the [Commissioner], for some evidence is of limited value and insufficient to justify the administrative costs and delay of a new hearing.'"). Moreover, even though the evidence from Koch relates tangentially to plaintiffs somatization disorder none of the clinical psychologist's findings in this regard add anything of significance to the findings of Dr. Brown. See Caulder, 791 F.2d at 878 ("We find that there is a reasonable possibility that the new evidence would change the administrative outcome because it consists of medical evidence that relates directly to one of Caulder's principal alleged impairments, about which there was inadequate evidence presented to the ALJ.").
In light of the foregoing, plaintiffs contention that the Appeals Council erred in failing to remand this case to the ALJ is rejected.
The Magistrate Judge recommends that the Commissioner's decision denying plaintiff supplemental security income benefits be affirmed.