finding the ALJ's non-disability conclusion unsupported by substantial evidence where the ALJ failed to consider the claimant's need to take on-demand nebulizer treatments when necessarySummary of this case from Holdren v. Comm'r of Soc. Sec.
Case Number 00-10427-BC.
July 14, 2004
The plaintiff filed the present action on November 8, 2000 seeking review of the Commissioner's decision denying the plaintiff's claim for a period of disability, disability insurance benefits, and supplemental security income benefits under Titles II and XVI of the Social Security Act. The case was referred to United States Magistrate Judge Charles E. Binder pursuant to 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3). Thereafter, the plaintiff filed a motion for summary judgment seeking reversal of the decision of the Commissioner and an award of benefits. The defendant filed a motion for summary judgment requesting that the decision of the Commissioner be affirmed, to which the plaintiff responded. Magistrate Judge Binder filed a report and recommendation on August 31, 2001 recommending that the plaintiff's motion for summary judgment be denied, the defendant's motion for summary judgment be granted, and the findings of the Commissioner be affirmed. The plaintiff filed timely objections to the recommendation and this matter is now before the Court.
The Court has reviewed the file, the report and recommendation, and the plaintiff's objections, and has made a de novo review of the administrative record in light of the parties' submissions. The plaintiff's objections challenge the magistrate judge's conclusion that substantial evidence supports the decision of the Administrative Law Judge (ALJ) that the plaintiff had the residual functional capacity to perform a limited range of sedentary work. The plaintiff also complains that the magistrate judge's report contains inaccuracies and does not reflect the administrative record "taken as a whole." For example, the plaintiff states that although the magistrate judge's report indicates that he continued to work through mid-February 1998, the administrative record clearly reflects at page 31 and pages 84 through 88 that the plaintiff did not work in 1998. The plaintiff also complains that the magistrate judge overlooked key facts relating to his pulmonary capacity. The plaintiff's objections include a complaint that the magistrate judge failed to address the plaintiff's arguments that the vocational expert and the ALJ did not account for the limitations of having to take breathing treatments using a nebulizer as needed rather than on scheduled breaks, and the plaintiff's loss of vision in one eye thereby eliminating depth perception.
The plaintiff, who is now fifty-three years old, applied for a period of disability, disability insurance benefits, and supplemental security income benefits on January 6, 1998 when he was forty-six years old. He had an unbroken work record of thirty years including two years in a factory rebuilding alternators, five months at a rubber company, seven years as a janitor for a dairy company, and three years at a auto parts manufacturing plant. The plaintiff has a well-documented history of respiratory problems dating from 1992, and he was diagnosed with chronic obstructive pulmonary disease (COPD) that grew progressively worse, no doubt due to his continued smoking of cigarettes, and eventually caused him to stop working. He last worked on January 2, 1998, which was the date he alleged his disability began.
In his application for disability insurance benefits, the plaintiff alleged that he was disabled and unable to work because of shortness of breath. His claim was initially denied, and the denial was upheld on reconsideration. In denying the claim, the Commissioner considered COPD and asthma as possible bases of disability. The plaintiff requested a hearing before an administrative law judge. On March 30, 1999, the plaintiff appeared before ALJ Paula M. Zera when he was forty-seven years old. ALJ Zera filed a decision on July 30, 1999 in which she found that the plaintiff was not disabled. The ALJ reached that conclusion by applying the five-step sequential analysis prescribed by the Secretary in 20 C.F.R. §§ 404.1520, 416.920. The ALJ concluded that the plaintiff had not engaged in substantial gainful activity since January 2, 1998 (step one); the medical evidence in the plaintiff's case established that he has "severe" impairments secondary to chronic obstructive pulmonary disease, asthmatic bronchitis, allergies, arthralgias, and loss of vision is his right eye (step two); these impairments did not by themselves or in combination meet or equal a listing in the regulations (step three); and the plaintiff could not perform any of his past relevant work, which the ALJ found to be unskilled and requiring up to medium exertion (step four).
In applying the fifth step, the ALJ concluded that the plaintiff retained the functional capacity to perform a limited range of sedentary work. His limitations included no lifting weights over 10 pounds; no climbing; no exposure to fumes, odors, dust, gasses, or extreme temperatures; and no close interaction with the general public or others. Relying on the testimony of a vocational expert, the ALJ found that such jobs as assembler, inspector, and security monitor fit within those limitations, and that those jobs existed in significant numbers in the local and regional economies.
The parties agree with the magistrate judge that the plaintiff has the burden of proving disability in order to qualify for social security disability and supplemental security income benefits, and that "disability" is defined as the "inability to engage in any substantial gainful activity" due to a "physical or mental impairment" that could cause death or might reasonably be expected to last continuously for at least twelve months. See 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Of course, a person is not disabled merely because his or her limitation prevents the person from performing previous work if that person can perform other "substantial gainful work which exists in the national economy." 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B). The parties also accept the rule that the authority of this Court to review administrative decisions of the Commissioner is limited to deciding whether the proper legal standards were used and "whether there is substantial evidence in the record to support the findings." Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003) (quoting Duncan v. Sec'y of Health Human Servs., 801 F.2d 847, 851 (6th Cir. 1986)). The plaintiff takes issue with the application of this rule, however, arguing that the magistrate judge and the ALJ culled from the record only that evidence that favored a determination of no disability, violating the familiar instruction that a decision can not be based on a single piece of evidence in disregard of other pertinent evidence that exists in the record, see Hephner v. Matthews, 574 F.2d 359, 362 (6th Cir. 1978), and that "the substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984).
As noted above, the medical reports in the administrative record amply support the finding that the plaintiff suffers from COPD and that he requires regular treatment from inhalers and the use of a nebulizer several times each day to obtain relief. He testified that he used his nebulizer on average of ten times per day and that each use takes about ten minutes. Tr. at 37, 39, 49. The ALJ did not explicitly reject that testimony, but by implication she must have discounted it since her conclusion that the plaintiff could perform work within his limitations is based on the vocational expert's opinion that the plaintiff could take his nebulizer treatments at work during his three scheduled breaks. See tr. at 21.
Although there is no medical testimony documenting a need to use neublizer treatments as often as ten or twelve times per day, the plaintiff's treating pulmonologist, David H. Payne, M.D., has the plaintiff taking nebulized Atrovent and Albuterol treatments five to six times daily as of August 24, 1998, and on a "prn" [as needed] basis by November 23, 1998. Tr. at 229, 255-56. On this later date, the plaintiff was instructed to have oxygen on hand to get through the acute attacks. This evidence is uncontradicted. The consulting internal medicine specialist, Joseph J. Souza, M.D., confirmed the diagnosis of COPD in May 1998 and characterized the impairment as "mild to moderate." Tr. at 179. Dr. Payne previously had characterized the plaintiff's COPD as "severe" in June 1997.
The ALJ's conclusion that the plaintiff could perform a limited range of sedentary work appears to be contingent upon his ability to accommodate his need for periodic breathing treatments. The vocational expert stated that the light-duty and sedentary jobs he described allowed for scheduled breaks, but there were no accommodations to stop work for breathing treatments as needed. There is no medical evidence in the record, however, that the plaintiff will benefit from nebulizer treatments taken at scheduled times. Indeed, as noted earlier, the most recent record prescribes the treatment "as needed."
Although one of the ALJ's hypothetical questions to the vocational expert posed the premise that the plaintiff required more treatments than there were breaks, that is, based on the plaintiff's own estimate of the need to use the nebulizer eight to twelve times daily, the ALJ's questions did not allow for the use of the nebulizer on an "as needed" basis, that is, other than at scheduled breaks even on a less frequent basis than described by the plaintiff. The plaintiff has objected to the basis of the hypothetical question on this ground.
It is well established that assessment of residual functional capacity for work must be made only after all of a claimant's limitations have been taken into account. 20 C.F.R. § 416.945. Further, a hypothetical question posed to a vocational expert must include a "complete assessment of [the claimant's] physical and mental state and should include an accurate portrayal of her individual physical and mental impairments." Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002) (internal quotes and alterations omitted) (quoting Varley v. Sec'y of Health Human Servs., 820 F.2d 777, 779 (6th Cir. 1987)).
The ALJ fount that the plaintiff satisfied his burden through the first four steps of the analytical process. Therefore, the burden shifts to the Commissioner to establish that the plaintiff possesses the residual functional capacity to perform other substantial gainful activity. Varley, 820 F.2d at 779. See also Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980). "To meet this burden, there must be a finding supported by substantial evidence that plaintiff has the vocational qualifications to perform specific jobs." Varley, 820 F.2d at 779 (internal quotes and citations omitted). However, there is no evidence in the record that the plaintiff could sustain his breathing by taking the undisputedly required nebulizer treatments on a scheduled basis. The ALJ's conclusion otherwise is not supported by substantial evidence.
The Court notes also that there is no discussion of the plaintiff's vision impairment. The ALJ found that the plaintiff lost the sight in one eye. There is also undisputed evidence that his vision blurs after his neublizer treatments due to the atomized medication misting into his eyes. The Commissioner argues that there is no evidence that the plaintiff's eye problems ever interfered with his work in the past. However, the records indicate that the vision impairment, particularly the blurry vision, became exacerbated when the plaintiff's nebulizer treatments increased in frequency, including the period after the alleged onset of his disability.
Having determined that the Commissioner's decision is not supported by substantial evidence, the question remains whether further fact-finding is required, for "[i]f a court determines that substantial evidence does not support the Secretary's decision, the court can reverse the decision and immediately award benefits only if all essential factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits." Faucher v. Sec. of Health Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). In Faucher, the district court found that the Commissioner's decision was not supported by substantial evidence because the hypothetical question posed by the ALJ to a vocational expert did not incorporate all of the claimant's impairments. The district court also concluded that it was unable to remand for taking new and additional evidence because of the limitation contained in sentence six of 42 U.S.C. § 405(g), which conditions a remand on a showing of good cause. Rather, the district court remanded for an award of benefits. On appeal, the court of appeals agreed that sentence six of Section 405(g) requires the Secretary to establish good cause as a prerequisite to a remand However, a post-judgment remand for further proceedings is authorized under sentence four of Section 405(g). See Melkonyan v. Sullivan, 501 U.S. 89, 97-98 (1991).
The court of appeals in Faucher agreed that the Commissioner's decision was not supported by substantial evidence, but concluded that a remand for benefits was inappropriate in that case. The court reasoned that the record was incomplete because the correct hypothetical question was never posed to the vocational expert. The witness was never given an opportunity to respond to a question that incorporated not only plaintiff's physical impairments but also the severity of his emotional impairments, and the record contained conflicting evidence on the severity of plaintiff's emotional impairments. The court observed that the district court had acknowledged that "it was not known whether plaintiff might be capable of performing a significant number of jobs in the national economy that would accommodate his combined limitations." Faucher, 17 F.3d at 176. The court concluded, therefore, that "the case must be remanded to the ALJ for further consideration of this issue." Ibid.
In Mowery v. Heckler, 771 F.2d 966 (6th Cir. 1985), the plaintiff sought Social Security disability insurance benefits, which were denied at the agency level, and he did not prevail in the district court. He suffered from hypertension, headaches and dizziness, and aches and pains. He was forced to stop work as a construction laborer because of pain. He had worked several years earlier as a night watchman. His I.Q. was below-average. Psychological tests established that plaintiff was able to function only in construction and mining jobs, and an orthopedic examination showed that the plaintiff had limitation in movement which precluded that activity. The ALJ had denied benefits concluding that plaintiff could perform light work, such as that of a night watchman, although there was evidence in the record that plaintiff had suffered a hearing loss and could only perform as a night watchman when assisted by his son and daughter. The court of appeals reversed the district court and remanded the case to the agency for an award of benefits. The court held:
The court finds it unnecessary to remand the case to the Secretary for further evaluation. In cases where there is an adequate record, the Secretary's decision denying benefits can be reversed and benefits awarded if the decision is clearly erroneous, proof of disability is overwhelming, or proof of disability is strong and evidence to the contrary is lacking.Id. at 973.
In this case, additional factual questions require resolution at the administrative level. A remand for further fact finding is required so that the Commissioner can take full account of the plaintiff's visual impairment and the limitations imposed as a result of the need for breathing treatments at the intervals medically required as demonstrated by the record. In making this determination, the ALJ is reminded that an observation of the plaintiff as he appears at the administrative hearing is neither appropriate nor relevant to the determination that must be made.
Accordingly, it is ORDERED that the magistrate judge's report and recommendation is REJECTED.
It is further ORDERED that the plaintiff's motion for summary judgment [dkt #17] is GRANTED IN PART and DENIED IN PART.
It is further ORDERED that the defendant's motion for summary judgment [dkt #20] is DENIED. The findings of the Commissioner are REVERSED, and the matter is REMANDED to the Social Security Commission for further proceedings.