Summary
In Acosta, the magistrate judge found prejudicial error in the ALJ's decision because the ALJ did not juxtapose specific statements found to be lacking in credibility with evidence in the record supporting this conclusion.
Summary of this case from Rodriguez v. Commissioner of Social Security AdminOpinion
Civil Action No. SA-04-CA-0456 XR (NN).
April 25, 2005
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
TO: Xavier Rodriguez United States District Judge
I. Introduction
Plaintiff Guy Acosta seeks review and reversal of the administrative denial of his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") by the Administrative Law Judge ("ALJ") on May 28, 2002. Plaintiff contends that ALJ Peter Belli's conclusion that plaintiff retained the residual functional capacity ("RFC") to perform work available in the local and national economies is not supported by the substantial evidence of the record. For this reason, plaintiff requests that the court reverse, remand and order the entry of a finding of disability, or, in the alternative, remand the case for proper development.After considering plaintiff's brief in support of his complaint, defendant's brief in support of the Commissioner's decision, plaintiff's reply brief, the transcript of the Social Security Administration (hereinafter "SSA") proceedings, the pleadings on file, the applicable case authority and relevant statutory and regulatory provisions, and the entire record in this matter, it is my recommendation that plaintiff's request for relief be GRANTED and the decision of the Commissioner REVERSED.
Docket Entry 11.
Docket Entry 13.
Docket Entry 14.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
II. Jurisdiction
The court has jurisdiction under 42 U.S.C. §§ 405(g), 1383.
III. Administrative Proceedings
According to the record in this case, plaintiff fully exhausted his administrative remedies prior to filing this action in federal court. Plaintiff filed applications for DIB and SSI in March 2001, alleging a disability beginning April 1998. The SSA denied plaintiff's applications both initially, on April 12, 2001, and on reconsideration, July 30, 2001.
Transcript, at 16, 48-58.
See Transcript, at 25-29.
See Transcript, at 31-34.
On August 1, 2001, plaintiff requested a hearing before an ALJ. The hearing was held on March 5, 2001. Plaintiff was represented by counsel at the hearing. Plaintiff's attorney was able to examine and question plaintiff, the vocational expert, Lloyd Fatzinger, and the medical expert, Dr. John Cegleski, during the hearing.
Transcript, at 35.
Transcript, at 384-427.
The plaintiff, who was thirty six (36) years old at the May 2002 hearing, testified that he lived in an apartment with his parents. Plaintiff told the ALJ that he had an eighth grade education and, despite some evidence in the record to the contrary, had not obtained a GED. Plaintiff stated, however, that he was able to speak Spanish, as well as speak, read and write in English. Plaintiff testified to past work experience as a certified nursing assistant and as a janitor. Plaintiff also admitted that he had been incarcerated for "credit card abuse."
Transcript, at 389.
Transcript, at 390.
Transcript, at 394.
Transcript, at 391.
Transcript, at 395-396.
Transcript, at 391.
When asked about his ability to perform daily and routine activities, plaintiff testified that he was able to bathe and dress himself with occasional assistance from his mother. Plaintiff stated that he cooked and made his bed occasionally, but did not do any laundry. Plaintiff further told the ALJ that he watched television during the day, often for two to three hours at a time. However, plaintiff stated that he did not go to the movies, only occasionally attended Church or socialized and had no valid drivers' license.
Transcript, at 394, 395.
Transcript, at 407.
Transcript, at 395, 400.
Transcript, at 399, 400.
When asked about his medical impairments, plaintiff testified that he had Hepatitis B, high blood pressure, and was HIV positive. Plaintiff told the ALJ that he had chronic diarrhea which caused him to go to the bathroom approximately four to five times during the night and to have occasional accidents. Plaintiff further testified that he had hemorrhoids and a fungal rash. Plaintiff stated that he occasionally used a cane, but not a back support. Plaintiff told the ALJ that he had not had surgery or been hospitalized for ten years preceding the administrative hearing, and had not been to the emergency room for the twelve months preceding the hearing. Similarly, plaintiff had not ever had psychiatric or psychological care or similar hospitalization.
Transcript, at 397.
Transcript, at 397, 400, 411, 412.
Transcript, at 403.
Transcript, at 401.
Transcript, at 396, 397.
Transcript, at 398.
ALJ Belli also heard testimony from medical expert Dr. Cegleski during the hearing. Dr. Cegleski noted that plaintiff had past problems in complying with prescribed medical treatments. The medical expert further testified that there was no evidence in the record that plaintiff was unable to perform his assigned cell duties while incarcerated as a result of any of his medical conditions. The doctor commented that plaintiff's accounting of the severity of his diarrhea was inconsistent with the evidence of record as plaintiff had not received any treatment for dehydration and gained, as opposed to lost, weight in the time preceding the administrative hearing. Dr. Cegleski concluded that none of plaintiff's conditions met or medically equaled a listing and that plaintiff was capable of performing light work.
Transcript, at 418-424.
Transcript, at 418-419.
Transcript, at 419.
Transcript, at 419-420.
Transcript, at 420.
ALJ Belli also heard testimony from vocational expert Lloyd Fatzinger. VE Fatzinger classified plaintiff's past work as a certified nursing assistant as medium, semi-skilled, and his past work experiences as a busboy and an office cleaner as medium, unskilled. The vocational expert testified that plaintiff could perform work as an assembler, a packer/hand, and a grader/sorter.
Transcript, at 424-426.
Transcript, at 426.
On May 28, 2002, the ALJ issued his decision in which he concluded that plaintiff was not under a "disability," as defined by the Social Security Act ("the Act"), at any time through the date of the decision. Specifically, ALJ Belli found that plaintiff retained the RFC to perform work available in the local and national economies.
Transcript, at 12-21.
After receiving the ALJ's unfavorable decision dated May 28, 2002, plaintiff requested review of the hearing and decision on June 19, 2002. On April 23, 2004, the Appeals Council concluded that there was no basis upon which it could grant plaintiff's request for review, thereby denying plaintiff's request. Plaintiff commenced the instant action in this court on May 25, 2004.
Transcript, at 9.
Transcript, at 5-8.
Docket Entry 1.
IV. Issue Presented
Whether the ALJ's decision is supported by substantial evidence and comports with relevant legal standards?V. Analysis
A. Standard of Review
In reviewing the Commissioner's decision denying disability insurance benefits, I am limited to a determination of whether substantial evidence supports the decision and whether the Commissioner applied the proper legal standards in evaluating the evidence. "Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind night accept as adequate to support a conclusion." Substantial evidence "must do more than create a suspicion of the existence of the fact to be established, but `no substantial evidence' will be found only where there is a `conspicuous absence of credible choices' or `no contrary medical evidence.'"
Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); 42 U.S.C. §§ 405(g), 1383(c)(3) (2002).
Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).
Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988) (quoting Hames, 707 F.2d at 164).
If the Commissioner's findings are supported by substantial evidence, then they are conclusive and must be affirmed. In my review of the Commissioner's findings, I must carefully examine the entire record, but refrain from re-weighing the evidence or substituting my judgment for that of the Commissioner. Conflicts in the evidence and credibility assessments are for the Commissioner and not for the courts to resolve. Four elements of proof are weighed by the courts in determining if substantial evidence supports the Commissioner's determination: (1) objective medical facts, (2) diagnoses and opinions of treating and examining physicians, (3) the claimant's subjective evidence of pain and disability, and (4) the claimant's age, education and work experience.
Martinez, 64 F.3d at 173.
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Villa, 895 F.2d at 1021 ("The court is not to reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner.").
Martinez, 64 F.3d at 174.
Id.
1. Entitlement to Benefits
Every individual who is insured for disability insurance benefits, has not reached retirement age, has filed an application for benefits, and is under a disability is entitled to receive disability insurance benefits. The term "disabled" or "disability" means the inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." A claimant shall be determined to be disabled only if his physical or mental impairment or impairments are so severe that he is unable to not only do his previous work, but cannot, considering his age, education, and work experience, participate in any other kind of substantial gainful work which exists in significant numbers in the national economy, regardless of whether such work exists in the area in which he lives, whether a specific job vacancy exists, or whether he would be hired if he applied for work.
Id. § 1382c(a)(3)(A).
Id. § 1382c(a)(3)(B).
2. Evaluation Process and Burden of Proof
Regulations set forth by the Commissioner prescribe that disability claims are to be evaluated according to a five-step process. A finding that a claimant is disabled or not disabled at any point in the process is conclusive and terminates the Commissioner's analysis.
20 C.F.R. §§ 404.1520 and 416.920 (2002).
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The first step involves determining whether the claimant is currently engaged in substantial gainful activity. If so, the claimant will be found not disabled regardless of his medical condition or his age, education, or work experience. The second step involves determining whether the claimant's impairment is severe. If it is not severe, the claimant is deemed not disabled. In the third step, the Commissioner compares the severe impairment with those on a list of specific impairments. If it meets or equals a listed impairment, the claimant is deemed disabled without considering his age, education, or work experience. If the impairment is not on the list, the Commissioner, in the fourth step, reviews the claimant's RFC and the demands of his past work. If he is still able to do his past work, he is not disabled. If he cannot perform his past work, the Commissioner moves to the fifth and final step of evaluating the claimant's ability, given his residual capacities, age, education, and work experience, to do other work. If he cannot do other work, he will be found disabled. The claimant bears the burden of proof at the first four steps of the sequential analysis. Once he has shown that he is unable to perform his previous work, the burden shifts to the Commissioner to show that there is other substantial gainful employment available that the claimant is not only physically able to perform, but also, taking into account his exertional and non-exertional limitations, able to maintain for a significant period of time. If the Commissioner adequately points to potential alternative employment, the burden shifts back to the claimant to prove that he is unable to perform the alternative work.
20 C.F.R. §§ 404.1520 and 416.920.
Id.
Id.
Id.
20 C.F.R. §§ 404.1520 and 416.920.
Id.
Id.
Id.
Id.
Leggett, 67 F.3d at 564.
Watson v. Barnhart, 288 F.3d 212, 217 (5th Cir. 2002).
Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989).
In the instant case, the ALJ reached his decision at step five of the evaluation process. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful employment since his alleged onset date of disability. ALJ Belli then concluded at steps two and three that plaintiff had an impairment or combination of impairments (HIV positive, hypertension and Hepatitis B) which were severe, but did not meet or medically equal a listed impairment as of the date the plaintiff was last insured. At step four, the ALJ found that, although he was unable to return to his past relevant work, plaintiff retained the residual functional capacity to perform light work. At step five, the ALJ held that given plaintiff's age (defined as a younger individual), education (a high school equivalent), and vocational experience (no transferable skills from previous work), plaintiff could perform work as an assembler, hand packager or grade sorter. Based on the foregoing, ALJ Belli concluded that plaintiff was not under a disability. B. Is the ALJ's May 28, 2002 Decision Supported by Substantial Evidence?
Transcript, at 16; ¶ 2, at 20.
Transcript, at 17; ¶ 3, at 20.
Transcript, at 17; ¶ 4, at 20.
Transcript, at 18; ¶ 8, at 20.
Transcript, at 18, 19; ¶ 7, at 20.
Transcript, at 19; ¶ 9, at 20.
Transcript, at 19; ¶ 10, at 20. Even though the ALJ noted that plaintiff had a high school equivalent education in the decision — a misstatement which plaintiff contends is reversible error (Docket Entry 11, at 10) — he included plaintiff's correct education level (a seventh grade education) in his hypothetical to the vocational expert. Transcript, at 425. Because the ALJ incorporated the correct educational level in the hypothetical posed to the vocational expert — and relied on the answer given to the same in the decision — I find plaintiff's accusation of error as to this point unavailing. Plaintiff has failed to establish prejudicial, i.e., reversible error as to the same. See Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000), "This Court will not reverse the decision of an ALJ for failure to fully and fairly develop the record unless the claimant shows that he or she was prejudiced by the ALJ's failure . . . To establish prejudice, a claimant must demonstrate that he or she `could and would have adduced evidence that might have altered the result (internal citations omitted).'"
Transcript, at 19; ¶ 13, at 21.
Transcript, at 15, 20, ¶ 14, at 21.
Plaintiff challenges the ALJ's decision, asserting that the ALJ improperly assessed his credibility. Plaintiff argues that this mistake constitutes reversible error and that substantial evidence does not support the ALJ's decision. In my opinion, plaintiff's grounds for reversal are meritorious. For that reason, I recommend that plaintiff's request for relief be GRANTED.
1. Did the ALJ improperly assess plaintiff's credibility?
In his first, and only, point of error, plaintiff asserts that the ALJ improperly assessed his credibility. Plaintiff contends that the ALJ failed to comply with the applicable Social Security Ruling (SSR) outlining the procedure by which an ALJ must assess a plaintiff/claimant's credibility. Plaintiff argues:
The ALJ listed the medical evidence (Tr. 17), Mr. Acosta's testimony (Id.), the State agency medical consultants' determination (Tr. 18), the medical expert's opinion (Id.), his finding that Mr. Acosta could perform a significant range of light work and, consequently, cannot return to his past (medium) relevant work (Id.), the vocational expert's opinion (Tr. 19), and, eventually, he summarily listed his findings (Tr. 20-21). No word was spent on Mr. Acosta's credibility, much less why Mr. Acosta's allegations should be rejected as not credible.
Docket Entry 11, at 8.
For these reasons, plaintiff contends that the ALJ committed a legal error which necessarily warrants reversal.
Social Security Ruling 96-7p was written to clarify the procedure to be used in assessing the credibility of a Social Security claimant's statements about symptoms and pain. The Ruling requires the ALJ to engage in a two-step process. In the first step,
Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims — Assessing the Credibility of an Individual's Statements, SSR 96-7p, at * 1.
the adjudicator must consider whether there is an underlying medically determinable physical or mental impairment(s) . . . that could reasonably be expected to produce the individual's pain or other symptoms.
Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims — Assessing the Credibility of an Individual's Statements, SSR 96-7p, at * 2.
If an underlying physical or mental impairment that could reasonably be expected to produce the individual's pain has been established, the adjudicator
must evaluate the intensity, persistence, and limiting effects of the individual's symptoms to determine the extent to which the symptoms limit the individual's ability to do basic work activities.
Id.
When the adjudicator needs additional information to assess the plaintiff's credibility, he should assess the following kinds of factors:
1. The individual's daily activities;
2. The location, duration, frequency, and intensity of the individual's pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims — Assessing the Credibility of an Individual's Statements, SSR 96-7p, at * 3.
Plaintiff asserts the following specific errors with respect to the ALJ's credibility assessment:
let it be mentioned that the ALJ's summary of Mr. Acosta's testimony and background is inaccurate and raises a question of the ALJ's credibility much more than of Mr. Acosta. The ALJ stated that Mr. Acosta has `a high school GED certificate' or `a high school equivalent education.' Tr. 16, 19. Mr. Acosta, however, testified under oath that he completed the 7th grade, dropped out while in the 8th, never got a GED and the record is inaccurate that he got one. Tr. 390-391. The ALJ further stated that Mr. Acosta testified that `he cooks, makes his bed, watches television, occasionally goes to church, and he visits friends and family members. He takes care of his personal needs; bathes, dresses, and handles his utensils. He also goes to grocery store. [. . .] [. . .] ( sic) and he has loose stools, but has not had any accidents' ( sic) Tr. 17. Mr. Acosta, in fact, testified that he needs assistance to bathe himself `because I get very weak and my mom has to help me with that.' Tr. 394. While in prison he was also helped with bathing. Id. Sometimes he can dress himself but sometimes he needs help. Tr. 395. He watches TV, up to 2-3 hours, laying down. Id. He sometimes goes to church, does not go to the movies, and does not socialize with friends since he got released (`I noticed that I couldn't be around a lot of crowds.') Tr. 399. His family comes and visits him. Id. He does not like to be around people because of `[t]he noise.' Tr. 410. His sister gives him a ride if needs ( sic) to go anywhere, like occasionally to a grocery store but he waits in the car. Tr. 401. He goes to a drug store every two months for his medication. Id. He does not do laundry but sometimes he makes his own bed. Tr. 407. He does not make it to the bathroom all the time and his mother helps him clean. Tr. 412.
Docket Entry 11, at 10.
In fact, there are two problems with the ALJ's decision. The first is that ALJ Belli failed to comply with the applicable regulations as to his assessment of plaintiff's credibility. Aside from concluding that plaintiff's "allegations regarding his limitations [we]re not credible as set forth in the body of the decision," the ALJ failed to juxtapose the specific statements he found lacked credibility with the evidence of record supporting his conclusions as to the same. Similarly, although the ALJ cited SSR 96-7p, he failed to perform the step-by-step analysis required by said regulation. This constitutes a failure to comply with the applicable legal standards which requires reversal.
Transcript, ¶ 5, at 20.
Transcript, at 18.
See Delgado v. Barnhart, 305 F.Supp. 2d 704, 708 (S.D. Tex. 2004), citing Leidler v. Sullivan, 885 F.2d 291, 294 (5th Cir. 1989). See also Western v. Harris, 633 F.2d 1204, 1206 (5th Cir. 1981) ("Under the statute, findings of fact by the Secretary are conclusive if supported by substantial evidence. Of course, no similar presumption of validity attaches to the Secretary's conclusions of law, including determinations of the proper standards to be applied in reviewing claims and the proper allocation of the burden of proof.")
The second problem with the ALJ's decision is the disparity between plaintiff's testimony as to his limitations and impairments — such as his need for occasional assistance in activities of daily living, accidents that occur on the way to the bathroom, and the like — and the ALJ's failure to discuss the same or to make contrary findings without explanation regarding the same in the decision. The ALJ may not ignore evidence and, because he relied on those same activities of daily living to reject plaintiff's claims for benefits, must address them in the decision.
Transcript, at 394.
Transcript, at 412.
See, e.g., Transcript, at 17, "he has loose stools, but has not had any accidents."
See Loza v. Apfel, 219 F.3d 378, 393-394 (5th Cir. 2000), "it is clear that the ALJ must consider all the record evidence and cannot `pick and choose' only the evidence that supports his position."
In her brief, the Commissioner outlines evidence in the record which supports the ALJ's decision. However, the ALJ's decision must be self-contained and self-supporting. Moreover, the ALJ's commission of a legal error warrants reversal and cannot be avoided by a showing that the record evidence supports the decision. For all the foregoing reasons, it is my finding that plaintiff has established prejudicial, i.e., reversible, error.
See Docket Entry 13.
VI. Recommendation
Based on the foregoing, I recommend that plaintiff's request for relief be GRANTED, and the case REMANDED so that the ALJ can assess plaintiff's credibility in compliance with the applicable legal standards.
VII. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn, 474 U.S. 140, 149-152 (1985).
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).