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finding that where there is "ample factual support in the record" for a particular listing, the ALJ should perform a listing analysis
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Civil Action No. WMN-99-3696.
December 15, 2000.
MEMORANDUM
I. Background
Plaintiff, Stephen Beckman, brought this action, pursuant to 42 U.S.C. § 405(g), for review of a final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his claim for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 401-433, and supplemental security income benefits ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1382. Currently pending are Plaintiff's Motion for Summary Judgment and Defendant's Motion for Summary Judgment. (Paper Nos. 10 and 11). These motions have been assigned to the undersigned on consent of the parties pursuant to 28 U.S.C. § 636 and Local Rule 301. No hearing is deemed necessary. Local Rule 105.6. For the reasons that follow, this court grants Plaintiff's Motion for Summary Judgment, denies Defendant's Motion for Summary Judgment, and remands this case to the Commissioner for further proceedings consistent with this Memorandum.
Mr. Beckman applied for DIB and SSI on August 5, 1996, alleging an inability to work since August 18, 1995 due to rheumatoid arthritis and status-post bilateral carpal tunnel surgery with pain, numbness, and swelling. (Record ("R") 11, 189-91, 194-95). The Social Security Administration denied his application initially and upon reconsideration. (R. 189-91, 194-95). An Administrative Law Judge ("ALJ") held hearings on December 17, 1997 and May 14, 1998; an attorney represented Mr. Beckman at the second hearing. (R. 18-25, 26-52). On May 22, 1998 the ALJ issued a decision finding Mr. Beckman not disabled. (R. 11-17). On October 25, 1999, the Appeals Council denied Mr. Beckman's request for review, making the decision of the Commissioner final and reviewable. (R. 4-5).
II. Standard of Review
The role of this court on review is to determine whether substantial evidence supports the ALJ's decision and whether the ALJ applied the correct legal standards. 42 U.S.C. § 405(g) (1991); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). This court cannot try the case de novo or resolve evidentiary conflicts but rather must affirm a decision supported by substantial evidence. Id. at 1456. Substantial evidence is that which "a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966); accord Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984). It is more than a scintilla but less than a preponderance of the evidence presented. Id. It is such evidence sufficient to justify a refusal to direct a verdict if the case were before a jury. Hays, 907 F.2d at 1456. In reviewing for substantial evidence, the court does not weigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the agency. Id.
This court must also determine whether the ALJ properly applied the law. "A factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law." Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
In determining whether one is disabled, the Commissioner has promulgated regulations that set forth a five-step sequential evaluation procedure. 20 C.F.R. § 404.1520. This five-step process, described by the Supreme Court in Bowen v. Yuckert, 482 U.S. 137 (1987), begins with the ALJ determining whether the claimant is engaged in substantial gainful activity as defined in 20 C.F.R. § 404.1571 and § 416.971 et seq. If the claimant is engaged in a substantial gainful activity, the claimant is considered not disabled. 20 C.F.R. § 404.1520(a) and 416.920(a). If the claimant is not engaged in a substantial gainful activity, the ALJ, at the second step, examines the physical and/or mental impairments alleged by the claimant and determines whether these impairments meet the durational and severity requirements set forth in 20 C.F.R. § 404.1520 and § 416.920.
If the durational and severity requirements are met, the ALJ's analysis proceeds to a third step — a consideration of whether the impairment or impairments, either severally or in combination, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, which is known as the Listing of Impairments. If one of the listings is met, disability will be automatically found without consideration of age, education, or work experience. If a listing is not met, however, the ALJ then moves to a fourth step and considers whether the claimant retains the residual functional capacity ("RFC") to perform past relevant work. If the ALJ finds that a claimant does retain the RFC to perform past relevant work, then the claimant will be found to be not disabled.
If a determination is made that the claimant is not capable of performing past relevant work, the ALJ moves to a fifth and final step and considers whether, based upon the claimant's RFC, age, education, and past work experience, the claimant is capable of some other work. The burden shifts to the Commissioner at this step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). If the claimant suffers solely from exertional impairments, the Medical-Vocational Guidelines, as defined in part 404, Subpart P, Appendix 2 (the "Guidelines"), provide rules to be applied in determining whether a claimant is disabled. Gory v. Schweiker, 712 F.2d 929, 930 (4th Cir. 1983). An ALJ, in applying the Guidelines, will examine the claimant's age, education, work experience, and residual functional capacity ("RFC") to determine which rule applies. Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984). The rule will direct a conclusion as to whether a claimant is disabled. Gory, 712 F.2d at 930.
Impairments may be exertional and nonexertional. An exertional impairment is one that affects the claimant's ability to meet the strength demands of certain jobs. 20 C.F.R. § 404.1569a and 416.969a. A nonexertional impairment is a "limitation that is present whether a claimant is attempting to perform the physical requirements of the job or not." Gory v. Schweiker, 712 F.2d 929, 930 (4th Cir. 1983). "[W]here the claimant's impairment is nonexertional — not manifested by a loss of strength or other physical abilities — or is marked by a combination of exertional and nonexertional impairments, the [Guidelines'] Rules are not conclusive, and full individualized consideration must be given to all relevant facts of the case." Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
The Guidelines, however, will not be used when the claimant suffers from both exertional and nonexertional impairments. Smith v. Schweiker, 719 F.2d 723, 725 (4th Cir. 1984). In such a case, the ALJ is required to employ the use of a vocational expert ("VE") to determine whether the claimant is still capable of some work. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983). If the claimant is not capable, disability will be found.
III. ALJ's Decision
The ALJ evaluated Mr. Beckman's claim for DIB and SSI using the above-described, five-step sequential process set forth in 20 C.F.R. § 404.1520 and 416.920. At the first step, the ALJ determined that Mr. Beckman had not engaged in substantial gainful activity since August 18, 1995. (R. 15). At step two, the ALJ determined that Mr. Beckman suffered from sero-negative rheumatoid arthritis and status-post bilateral carpal tunnel release which, in combination, were severe. (R. 16). At step three, he concluded that Mr. Beckman did not have an impairment(s) listed in or equal to those in the Listing of Impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.). At step four, the ALJ found that Mr. Beckman retained the RFC to perform less than the full range of light work and that he would be unable to perform his past relevant work as a truck driver. (Id.). At step five, the ALJ found that Mr. Beckman could perform numerous jobs in the national economy given his age, education, and RFC to perform less than the full range of light work. (R. 17). Accordingly, the ALJ concluded that Mr. Beckman was not disabled. (Id.).
The ALJ found that Mr. Beckman was "approaching advanced age" and had a twelfth-grade high school education, and that the transferability of his work skills was immaterial. (R. 16).
IV. Summary of Evidence
Mr. Beckman was fifty-two years old at the time of his hearings. (R. 20, 32). He testified that he received a G.E.D., that he could read and write, and was able to do simple math. (R. 20-21).
On July 3, 1995, at age 49, Mr. Beckman was examined by Dr. David Tuel for his complaints of swelling in his fingers and wrist, which he had been experiencing for several months. (R. 148). Dr. Tuel noted stiffness in plaintiff's right wrist, a stiff metacarpophalangeal ("MP") joint, on his right ring finger, and slight swelling in his fingers. (Id.). His x-rays were normal. (Id.). Mr. Beckman received a prescription for Indocin, but Dr. Tuel was unable to conclusively establish whether plaintiff was suffering from carpal tunnel syndrome and/or some form of a rheumatological disorder. (Id.).
The MP joint is that closest to the wrist. Dorland's Medical Dictionary 1020 (28th ed. 1994) ("Dorland's").
On July 27, 1995, Mr. Beckman was seen by Dr. Mohammad Shafiei for his complaints of persistent numbness and a tingling sensation in his hand and fingers but primarily affecting the right hand. (R. 111). Dr. Shafiei's assessment was that Mr. Beckman suffered from severe bilateral carpal tunnel syndrome and referred plaintiff to Dr. Tuel and Dr. Jerry Adams for a follow-up evaluation and surgical release. (R. 112).
Dr. Tuel performed a right carpal tunnel release on Mr. Beckman on August 18, 1995, which revealed "severe median nerve ischemia secondary to his compression." (R. 147, 150). Almost two months after the surgery, Dr. Tuel noted that Mr. Beckman's pain was a little better but that "he still has persistent symptoms and now he is getting some stiffness." (R. 146). Plaintiff was sent to physical therapy to start working on his hand. (R. 146). He attended physical therapy from October 10, 1995 though October 31, 1995. (R. 137-142). Mr. Beckman indicated that he believed that the physical therapy had not resulted in any improvement. (R. 142). At a follow up examination on November 16, 1995, plaintiff had continuing complaints about his hands. Dr. Tuel found the problem to be mainly rheumatological but noted that it could be due to "permanent, irreversible damage secondary to his longstanding carpal tunnel syndrome." (R. 146). Mr. Beckman underwent a left carpal tunnel release November 29, 1995. (R. 145). On January 18, 1996, he advised Dr. Tuel that he was not really any better because he still had paresthesias, pain, and swelling with grip. (R. 145).
Ischemia is local anemia caused by a mechanical obstruction to the blood supply; the obstruction mainly involves arterial narrowing. Stedman's Medical Dictionary 894 (26th ed. 1995) ("Stedman's").
Paresthesias is an abnormal sensation (e.g., burning, pricking, tingling, tickling). Stedman's at 1300.
Dr. Sotiere Savopoulos treated plaintiff for sero-negative rheumatoid arthritis beginning October 9, 1995 because the carpal tunnel releases had not completely alleviated the symptoms in his hands and fingers. (R. 174). When he initially began treating Mr. Beckman, Dr. Savopoulos noted that Mr. Beckman had "moderately severe synovitis of the digits of both hands with a marked inability to grasp." (R. 174). Dr. Savopoulos referred Mr. Beckman to Dr. Brian Houston as a result of a test showing positive antinuclear antibodies ("ANA") and possible lupus. (R. 155). Dr. Houston saw Mr. Beckman on February 12, 1996 and noted his complaints of swelling and pain in both hands and problems making a fist and using his hands. (R. 155). Following a May 15, 1996 examination, Dr. Houston assessed plaintiff with "mild activity of sero-negative rheumatoid arthritis" and "elevated liver functions of uncertain etiology possibly secondary to chronic alcohol usage." (R. 153).
Synovitis is inflammation of a synovial membrane, particularly involving joints. When the term is unqualified, it is synonymous with arthritis. Stedman's at 1746.
Antinuclear is "destructive to or reactive with components of the cell nucleus, as antinuclear antibody." Dorland's at 98.
Lupus is "a name originally given to localized destruction or degeneration of the skin caused by various cutaneous disease." Dorland's at 964.
In May 1997, Dr. Savopoulos noted that Mr. Beckman had severely limited range of motion with his hands, he had significant thickening of his joints, he had ulnar deviation, his left hand could not grip and could close only about halfway, his right hand could grip very slightly, and his shoulders were exhibiting limited range of motion. (R. 176). Dr. Savopoulos noted that Mr. Beckman could not work in his old job as a truck driver and was "disabled to pursue any line of work [which] required dexterity of both hands." (R. 176). On December 16, 1997, Dr. Savopoulos, plaintiff's treating physician, indicated that in his two years of treating Mr. Beckman, he found that the stiffening in Mr. Beckman's hands and fingers had worsened, that Mr. Beckman was unable to close his hands completely, and that the stiffness had extended to Mr. Beckman's wrists and especially into his shoulders. (R. 175). Dr. Savopoulos found that Mr. Beckman experienced pain when abducting his shoulders (which he could abduct to only 45-50 degrees), but that mainly he experienced freezing of the joints. (R. 175). Dr. Savopoulos concluded that plaintiff was "very limited in what he could do especially with severe stiffening of the hand joints" and shoulders, which caused a decreased range of motion; and that his condition prohibited him from engaging in his occupation as a truck driver. (R. 175).
At the hearing on May 14, 1998, Mr. Beckman testified that he lived with his wife, his two children, ages 23 and 25, and his granddaughter. (R. 34). He testified that he does not cook or do laundry, and does limited housework such as vacuuming. (R. 35). He used a riding mower to cut his lawn but testified that by the time he finished his arms hurt. He advised, however, that his son usually mows the lawn. (R. 36). At the time of the hearing, Mr. Beckman testified that he was taking one medication but that it did not really help him. (R. 37-38). He testified that he no longer drinks and that he smokes about one-and-a-half packs of cigarettes a day. (R. 38). In response to questioning by his attorney, Mr. Beckman testified that he drives, but has problems doing so when he is required to turn the wheel quickly which hurts his arms and that he has trouble gripping the wheel because of arm pain and swelling. (R. 40-41). He testified that the carpal tunnel surgery had not given him much relief and neither had physical therapy. (R. 41-42). Mr. Beckman stated that his wife does not like him to do dishes because he often drops them due to his poor grip. (R. 42). In addition, Mr. Beckman expressed his belief that he could not perform carpentry work because of his inability to hold tools. (R. 46). Mr. Beckman further testified that he can hold a coffee cup if it has a big handle, that he has trouble buttoning buttons, that he sometimes has trouble putting on his socks, that he does not have trouble taking care of his personal hygiene, and that his daily activities consist mainly of either watching television or sitting around the house. (R. 46-47).
A vocational expert ("VE") testified at the hearing on Mr. Beckman's claim for benefits. He classified plaintiff's former work as a sawmill laborer as heavy exertional level and unskilled, and his job as a truck driver as medium exertional level and semi-skilled. (R. 49-50). The VE was asked some hypothetical questions. The ALJ first asked the VE whether there were any jobs available for a person "of this claimant's age, education and work experience as just described, mostly semi-skilled, some unskilled, and if a hypothetical person could additionally do medium work, which would include medium, light and sedentary, but would have limitation on fine manipulation in both hands." (R. 50). The VE testified that the positions Mr. Beckman would be qualified for in the medium and semi-skilled and/or unskilled area would require manipulation and fine finger dexterity. (R. 50).
In the light unskilled and light semi-skilled levels, there were positions such as gate guard of which there were approximately 28,000 jobs nationally and approximately 250 locally. (R. 51). The VE testified that there was also the position of security guard and there were about 100,000 such jobs nationally and 500 locally. (R. 51). A job as a parking lot attendant was a light, unskilled position and there were 17,000 such jobs nationally and 150 in the local economy. (R. 51). Another light, unskilled job for which plaintiff qualified was that of an in-house dispatcher of which there were 11,000 such jobs nationally and 200 in the local economy. (R. 51). The VE testified that there were no sedentary, unskilled positions suitable for plaintiff. (R. 51).
The ALJ then asked the VE whether there were any jobs available to a hypothetical person with the limitations and restrictions to which Mr. Beckman had testified. (R. 51). The VE testified in the negative based on plaintiff's testimony regarding his inability to use his hands and not being able to reach anything. (R. 51).
The ALJ did not accept the conclusion that plaintiff could not work because he did not accept plaintiff's testimony concerning his full range of limitations. Rather, the ALJ found plaintiff "fairly credible, but only to the extent that [plaintiff's complaints] support" the ALJ's residual functional capacity findings. (R. 14). Concerning plaintiff's RFC, the ALJ found "that the claimant retains the residual functional capacity to perform the physical exertional and nonexertional requirements of work except for lifting more than 20 pounds at a time, or frequently lifting or carrying objects weighing more than 10 pounds; and, work requiring fine manipulation with both hands. The claimant, therefore, retains the residual functional capacity to engage in less than full range of light work." (R. 13).
V. Analysis
Plaintiff argues that substantial evidence of record does not support the ALJ's finding that he is not disabled because: (1) the record evidence does not support the ALJ's finding that plaintiff can perform light, unskilled work; (2) plaintiff's condition meets the listing of impairments; and (3) the VE's expert testimony does not support the findings of the ALJ. (Paper No. 10 at 15-23). For the reasons that follow, the court remands this case to the Commissioner for further proceedings.
A. The ALJ's Determination That Plaintiff Could Perform Light, Unskilled Work Is Not Supported by Substantial Evidence.
Plaintiff argues that the ALJ's determination that he can perform less than the full range of light, unskilled work is not supported by substantial evidence. (Paper No. 10 at 19-21). He maintains that the ALJ should have found by definition that there were no light, semi-skilled or unskilled jobs that he could perform, as both his testimony and the reports and observations of his treating physicians demonstrated that he cannot pick up or lift any amount of weight. (Id. at 19). Defendant argues that the evidence establishes that plaintiff can perform a full range of light work with the exception of work which requires fine manipulation with both hands.
In support thereof, defendant relies on the following evidence: (1) Dr. Savopoulos' observation that plaintiff was getting better; (2) an RFC assessment done at the State Disability Determination Services in September 1996 which indicated plaintiff could lift 50 pounds occasionally, frequently lift 25 pounds, and sit or stand a total of six hours in an eight hour day; (3) plaintiff's testimony that he drove 1 1/2 hours by himself to the hearing; (4) plaintiff's testimony that he could mow a fairly large lawn; and (5) the fact that a person suffering from the degree of pain and other symptoms as alleged by plaintiff could not engage in the daily activities he did such as occasionally vacuuming, watching television, reading the newspaper, socializing, and listening to the radio. (Paper No. 11 at 19, 25-27).
The ALJ found that plaintiff had the RFC to perform less than the full range of light work. (R. 16). Specifically, he found that Mr. Beckman could not lift more than twenty pounds or more than ten pounds frequently, and that he could not engage in work requiring fine manipulation with both hands. (R. 13, 16). Light work is defined by regulation as follows:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.20 C.F.R. § 404.1567(b) and § 416.967(b). The claimant must be able to perform "substantially all of these activities" in order to have the capacity for light work. 20 C.F.R. § 404.1567(b).
The court cannot determine whether there is substantial evidence to support the decision of the ALJ because the ALJ has failed to indicate what evidence he specifically accepted or rejected in making his RFC finding; nor did he cite to relevant medical evidence he may have relied on to arrive at the finding. See Wilson v. Califano, 617 F.2d 1050, 1054 (4th Cir. 1980) ("[I]t is manifestly unfair for the ALJ to rely on assumptions and `facts' which the claimant cannot, without reading the ALJ's mind, test or rebut."). See also Murphy v. Heckler, 810 F.2d 433, 437 (4th Cir. 1987); Cook v. Heckler, 783 F.2d 1168, 1172-73 (4th Cir. 1986); Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985); Gordon v. Schweiker, 725 F.2d 231, 235-36 (4th Cir. 1984).
In reaching the conclusion that Mr. Beckman retained the RFC to perform less than the full range of light work, the ALJ stated that he evaluated plaintiff's complaints of pain, other subjective symptoms, and the severity of plaintiff's limitations. (R. 13). The ALJ noted that Mr. Beckman's treating rheumatologist, Dr. Savopoulos, indicated that his condition would preclude him from returning to his past vocation as a truck driver and that he could not perform work requiring manual dexterity. (R. 13). With regard to Mr. Beckman's functional limitations, the ALJ noted that while plaintiff indicated in his Disability Report that he had no activities of daily living, plaintiff testified that he drove a car and could do his own yard work, which included mowing a one-acre lawn on a riding lawn mower. (R. 14).
The ALJ, however, failed to discuss relevant medical evidence tending to weaken his conclusion that Mr. Beckman retained the RFC to perform less than the full range of light work. For example, there is no mention of the following relevant facts: (1) despite aggressive physical therapy, Mr. Beckman still had a severe degree of synovitis of his hands following his carpal tunnel surgery; (2) he could not grasp; (3) he had severely limited range of motion in his hands; (4) he had significant thickening of the joints of his hands; (5) he had ulnar deviation; (6) he could not grip with his left hand and could close it only half way; (7) he could grip very slightly with his right hand; (8) he had limited shoulder range of motion; (9) over a two year period, the stiffness in plaintiff's hands had worsened to such a degree that he was unable to completely close his hands; (10) the stiffness had extended to plaintiff's wrists and shoulders causing some pain, decreased range of motion, and freezing of the joints; and (11) anti-rheumatic medication would likely not have a significant improvement with regard to plaintiff's joint range of motion but could possibly slow the progression. (R. 174-176).
Ulnar pertains to the forearm on the side opposite the thumb. Dorland's at 1772.
The ALJ also failed to acknowledge that plaintiff's treating physicians indicated that he had problems with both gripping ~and/or grasping and had ongoing complaints of stiffness, numbness, swelling, and pain with both his hands despite having had carpal tunnel release surgery. (E.g., R. 174-76). The ALJ's failure to specifically address this evidence raises the question of whether the ALJ considered evidence contrary to his conclusion. Cf. Weicht v. Weinberger, 403 F. Supp. 244, 246 (D. Md. 1975) (ALJ "must make explicit findings on all of the essential questions which determine eligibility as well as the evidentiary basis for his conclusions").
There is no indication as to whether the ability to grasp or grip is considered to be the same and/or whether the ability to engage in fine manipulation encompasses the ability to grip and/or grasp. On remand, this issue should be developed.
In short, the ALJ's decision fails to inform the court of the bases of his decision. If, on remand, the ALJ finds plaintiff able to engage in less than the full range of light work, the ALJ must fully address and analyze the record, particularly evidence that does not support his conclusion.
B. The Testimony of the VE Does Not Support the Findings of the ALJ.
Plaintiff argues that, in light of the VE's testimony that no jobs were available for a hypothetical person as described by the ALJ with the limitations to which plaintiff testified, the ALJ's determination that significant jobs existed in the national and local economy that he could perform is not supported by substantial evidence. (Paper No. 10 at 18). Defendant argues that the ALJ could properly rely on the hypothetical he propounded to the VE which included all limitations he accepted as credible. (Paper No. 11 at 30-32).
Based on a review of the record, it is unclear what the ALJ relied on in finding that significant numbers of jobs existed in the national and local economy which Mr. Beckman could perform given his age, background, and capacity to perform less than the full range of light work. At the hearing, the ALJ propounded a hypothetical to the VE which described an individual with Mr. Beckman's background factors and with a RFC for light work but which would not require fine manipulation with both hands. (R. 50). After the VE testified as to the number of jobs available given such a hypothetical individual, the VE was then asked by the ALJ to indicate whether any jobs existed for the hypothetical person with the limitations and restrictions as to which plaintiff had testified. (R. 51). In response, the VE testified that based on plaintiff's testimony that he was unable to use his hands and was unable to reach for things, there would be no jobs such an individual could perform. (R. 51).
In finding that plaintiff could perform numerous jobs in the national economy, the ALJ implicitly rejected the full scope of plaintiff's alleged limitations even though the ALJ found plaintiff "fairly credible." (R. 14). The ALJ provided no explanation for rejecting particular aspects of plaintiff's testimony; nor did he cite evidence favorable or contrary to his finding. This deficiency leaves the court unable to determine the basis on which the ALJ concluded that significant jobs existed in the local and national economy that plaintiff could perform. Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985). As discussed above, on remand, the ALJ is to identify what parts of plaintiff's testimony he rejected and why. In his analysis, the ALJ must cite evidence bearing on his decision and explicitly account for contrary evidence. Id. Once the ALJ completes this analysis, he should explain why he accepted the VE's testimony on the first hypothetical question presented, rather than the second (accepting plaintiff's testimony).
Plaintiff points out that the jobs suggested by the VE, i.e., gate guard, security guard, and dispatcher, would require significant periods of sitting and standing during a full forty-hour work week and would also require plaintiff to maintain written records. Accordingly, on remand, the ALJ should conduct a more thorough examination of the duties and responsibilities of the jobs noted and analyze them as compared to the ALJ's RFC finding, which, on remand, the ALJ will have explained in greater detail in accordance with the first part of this Memorandum.
C. The ALJ's Finding That Plaintiff's Impairment Does Not Meet the Listing of Impairments Is Not Supported by Substantial Evidence.
Plaintiff contends that the ALJ's finding that he does not meet or equal the Listing of Impairments ( 20 C.F.R. Part 404, Subpart P, Appendix 1) ("listing") is not supported by substantial evidence. (Paper No. 10 at 21). While the ALJ did not specify which listing is at issue, plaintiff argues that the rheumatoid arthritis listing is the listing potentially applicable. (Paper No. 10 at 21. Regarding that listing, defendant argues that plaintiff fails to meet the listing because his wrists and hands constitute one major joint and he, therefore, does not meet the listing criteria. (Paper No. 11 at 22-23). The court finds that the ALJ failed to analyze fully, as he was required, whether plaintiff's impairments met or equaled the listing.
In cases where there is "ample factual support in the record" for a particular listing, the ALJ must provide a full analysis to determine whether the claimant's impairment meets or equals the listing. Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986). In particular, the ALJ must compare symptoms, signs, and laboratory findings with the appropriate listing criteria. 20 C.F.R. § 404.1526(a) and 416.926(a); Cook, 783 F.2d at 1172. Here, the ALJ's analysis was deficient.
While the applicability of Cook v. Heckler, a case involving widows benefits, to DIB and SSI claims remains unclear, France v. Apfel, 87 F. Supp.2d 484, 488 n. 5 (D.Md. 2000), lower courts have interpreted Cook to extend generally to cases where there is "ample evidence in the record to support a determination that the claimant's impairment meets or equals one of the listed impairments." Ketcher v. Apfel, 68 F. Supp.2d 629, 645 (D.Md. 1999) (involving DIB); accord Huntington v. Apfel, 101 F. Supp.2d 384, 391 (D.Md. 2000) (same). This approach appears consistent with a series of unpublished Fourth Circuit opinions, in which the courts have recognized that Cook "does not establish an inflexible rule requiring an exhaustive point-by-point discussion in all cases." E.g., Russell v. Chater, No. 94-2371, 1995 WL 417576, at *3 (4th Cir. July 7, 1995) (involving DIB).
The listing for rheumatoid arthritis at issue here requires persistent and significant symptoms of arthritis involving multiple major joints, as well as corroborating diagnostic evidence. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Rule 1.02. In particular, the listing sets forth the following elements:
A. There is a history of persistent joint pain, swelling, and tenderness involving multiple major joints and with signs of joint inflamation (swelling and tenderness) on current physical examination despite prescribed therapy for at least three months, resulting in significant restriction of function of the affected joints, and clinical activity expected to last at least twelve months; and
B. Corroboration of diagnosis at some point in time by either: 1. Positive serologic tests for rheumatoid factors; or 2. Antinuclear antibodies; or 3. Evaluated sedimentation rate; or 4. Characteristic histologic changes in biopsy of synovial membrane or subcutaneous nodule.20 C.F.R. Pt. 404, Subpt. P, App. 1, Rule 1.02.
Notwithstanding ample factual support for the listing for rheumatoid arthritis, the ALJ in this case stated simply that plaintiff's impairments were not "of a severity to meet or equal any of the impairments listed." (R. 12). As to the first element of the listing, the record shows that plaintiff has a prolonged history of pain, swelling, numbness, thickening, and tenderness in the joints of his hands, symptoms which caused him increasing functional limitations in grasping, range of motion, and sensation. (R. 111, 145-46, 149-50, 158, 174-76). In particular, plaintiff complained to Dr. Tuel in July 1995 of swelling in his left hand and wrist, as well as numbness and difficulty grasping. (R. 158). Plaintiff also complained of persistent numbness and tingling in his right hand, (R. 111), for which he underwent a right carpal tunnel release in August 1995, (R. 150). Plaintiff made similar complaints to Dr. Tuel even after this procedure, leading Dr. Tuel to believe that plaintiff may have suffered permanent, irreversible damage to his right hand. (R. 146).
In November 1995, plaintiff underwent a left carpal tunnel release. (R. 149). In January 1996, Dr. Tuel observed that plaintiff "says he is really not any better. He still has similar complaints of the paresthesias and pain and swelling with grip." (R. 145). In October 1996, Dr. Sotiere Savopoulos observed that "[d]espite aggressive physical therapy, this patient still continues with a severe degree of synovitis of the hands. At this time he still cannot grasp." (R. 174). Dr. Savopoulos reported in May 1997 severe limits in plaintiff's range of motion, as well as severe thickening of particular joints. (R. 176). In December 1997, plaintiff complained of increasing stiffness in his hands, as well as pain and "freezing" of the joints. (R. 175).
There is also evidence of record supporting the "corroboration" requirement of the listing. A March 19, 1996 test ordered by Dr. Savopoulos showed the presence of antinuclear antibodies, (R. 153), which is a form of "corroboration" recognized by the listing. Listing 1.02(B)(2). In sum, the evidence is sufficient to warrant a full analysis of the rheumatoid arthritis listing. Cf. Cook, 783 F.2d at 1172 (remanding where "ample evidence in the record to support a determination that Cook's arthritis met or equalled one of the arthritic impairments listed").
Defendant argues that plaintiff's right and left hands constitute only one major joint for purposes of the listing, and that, accordingly, the first element of the listing is not met. (Paper No. 11 at 22-23). Defendant relies on Rule 1.00D, which provides that "[m]ajor joints as used herein refer to hip, knee, ankle, shoulder, elbow, or wrist and hand. (Wrist and hand are considered together as one major joint.)" 20 C.F.R. Pt. 404, Subpt. P, App. 1, Rule 1.00D. Neither party cites authority other than Rule 1.00D, and the court's research has revealed no binding precedent on the issue.
Only the Sixth Circuit has written on this issue in an unpublished opinion. Mount v. Comm'r of Social Security, No. 98-1907, 1999 WL 993903, at *8 (6th Cir. Oct. 20, 1999) ("Significantly, [Rule 1.00D] does not state that the `wrists and hands' are one major joint. Thus, we agree with Mount that her left and right wrists and hands constitute two major joints.").
The court construes the plain language of Rule 1.00D to mean that plaintiff's right and left hand are distinct "major joints." The regulation precisely lists each joint in singular form, suggesting that each is a distinct unit rather than a composite of right and left. In addition, the regulation explicitly provides that hand and wrist should be treated as a single joint, suggesting that the Commissioner appreciated the need for clarity when requiring that listed joints be treated in combination. Moreover, defendant's construction of Rule 1.00D would lead to untenable results. For instance, a person with an arthritic hand and shoulder could satisfy Element A whereas a person with two arthritic shoulders could not. The court finds no basis to support such a distinction and concludes that plaintiff's right and left hand are "multiple major joints" for purposes of Listing 1.02.
On remand, the ALJ must analyze whether plaintiff's impairment meets or equals Listing 1.02 in accordance with the above discussion. Cook, 783 F.2d at 1172. In particular, the ALJ must compare the symptoms, signs, laboratory findings, and resulting functional limitations with the elements of the rheumatoid arthritis listing.
VI. Conclusion
Based upon the foregoing, the court cannot determine whether the ALJ's opinion is based on substantial evidence because the ALJ did not discuss what medical evidence he relied on in arriving at his conclusion that plaintiff was not disabled and did not indicate why he partially discredited plaintiff's testimony. Accordingly, on remand, the ALJ should specifically discuss what evidence he accepted or rejected in arriving at his conclusion that plaintiff retained the RFC to perform the full range of light work with the exceptions previously noted. Specifically, the ALJ should address the weight given to the opinions of plaintiff's treating physicians, Dr. Savopoulous, Dr. Tuel, and Dr. Houston. In doing so, the ALJ is specifically directed to (1) discuss the factors in 20 C.F.R. § 404.1527 and § 416.927 regarding the evaluation of the medical opinions, and (2) consider and explain how the medical opinions affect the RFC determination. Additionally, on remand, the ALJ should indicate what evidence he accepted and/or rejected in discrediting plaintiff's testimony and why. And finally, the ALJ should determine whether plaintiff's impairments meet or equal Listing 1.02.
For the foregoing reasons, plaintiff's Motion for Summary Judgment is granted, defendant's Motion for Summary Judgment is denied, and this case is remanded for further proceedings consistent with this Memorandum. A separate order shall issue.
ORDER
For the reasons stated in the foregoing Memorandum, it is this _____ day of December, 2000 hereby ORDERED that:
1. Plaintiff's Motion for Summary Judgment (Paper No. 10) is GRANTED;
2. Defendant's Motion for Summary Judgment (Paper No. 11) is DENIED;
3. The decision of the Commissioner denying benefits is reversed, and the case is remanded for further proceedings consistent with this Memorandum; and
4. The Clerk shall mail copies of this Order and the accompanying Memorandum to counsel of record.