Opinion
Civil No. 01-363 (JRT/SRN)
December 10, 2001
Jennifer G. Mrozik, Esq., on behalf of Plaintiff.
Roylene A. Champeaux, Esq., Assistant United States Attorney, on behalf of Defendant.
REPORT AND RECOMMENDATION
Pursuant to 42 U.S.C. § 405 (g), Plaintiff Kenneth Dreher seeks judicial review of the final decision of the Commissioner of Social Security (Commissioner), who found that Plaintiff Dreher was not statutorily disabled because he could perform his past relevant work (PRW), as well as other jobs existing in significant numbers in the national economy, and thus was not entitled to Disability Insurance Benefits under the Social Security Act, (the Act), 42 U.S.C. § 423 (d).
The parties have submitted cross motions for summary judgment. The matter has been referred to the undersigned United States Magistrate Judge for Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1(c). For the reasons set forth below, it is this Court's recommendation that the Commissioner's decision be reversed, and the case be remanded for further administrative proceedings consistent with this Report and Recommendation.
I. PROCEDURAL BACKGROUND
Plaintiff Kenneth Dreher filed an application for Disability Insurance Benefits on November 25, 1998, alleging that he has been disabled and unable to work since March 10, 1998, due to Scheuermann's disease, a degenerative disease of the spine, and the resultant headaches, depression, and chronic pain. Tr. 90-157. His application was denied initially and upon reconsideration. Tr. 94-98, 101-103. Plaintiff Dreher thereafter requested an administrative hearing on his claims. Tr. 104-105.
On July 13, 1999, Plaintiff Dreher appeared with counsel James Greeman at an administrative hearing before Administrative Law Judge (ALJ) Jerome J. Berkowitz and testified in his own behalf. Tr. 47-72. Andrew M. Steiner, a non-examining medical expert, and Mary Alice Harris, a vocational expert, also appeared and testified at the hearing. Id.
In a decision issued on October 26, 1999, ALJ Berkowitz found that Plaintiff Dreher was not under a disability as defined in the Social Security Act, 42 U.S.C. § 423 (d). Furthermore, ALJ Berkowitz found that Plaintiff's impairments are mild enough that he could perform his past relevant work. Tr. 29-30.
The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review. Tr. 7-8.
Plaintiff now seeks summary judgment in his favor, specifically requesting that he be awarded a period of disability and disability insurance benefits from and after March 10, 1998, or, in the alternative, that this matter be remanded for further administrative proceedings. Defendant Commissioner moves for summary judgment affirming his final decision.
For a review of Plaintiff's relevant personal, medical, and earnings information, as well as procedural background see ALJ Jerome J. Berkowitz' decision dated October 26, 1999, and appended Psychiatric Review Technique Form (Tr. 19-39); the transcript of the July 13, 1999 administrative hearing (Tr. 42-89); and the attached exhibits (Tr. 90-279).
II. DISCUSSION
Plaintiff Kenneth Dreher asserts in general that the Commissioner's unfavorable decision is not supported by substantial evidence in the record as a whole. Specifically, Plaintiff Dreher argues that the ALJ failed to fully and fairly develop the record; substituted his own judgment for that of physicians regarding Plaintiff's non-exertional impairments; failed to properly consider the combined effect of Plaintiff's impairments on residual functional capacity; erred in relying on a medical expert whose testimony is not supported by the record as a whole; and improperly rejected Plaintiff's subjective complaints of pain and its consequent limitations. Furthermore, Plaintiff asserts that because the ALJ failed to adequately develop the record, failed to conduct a proper Polaski analysis of Plaintiff's subjective complaints, and ignored Plaintiff's psychological limitations, the hypothetical question the ALJ presented to the vocational expert was flawed and cannot serve as substantial evidence to support the finding that Mr. Schneider is not statutorily disabled. Plaintiff therefore contends that the Commissioner's decision should be reversed and that Plaintiff be awarded a period of disability and disability insurance benefits from and after March 10, 1998, or in the alternative, that the matter be remanded to the Commissioner for further proceedings.
Defendant Commissioner asserts that the ALJ's decision that Plaintiff Dreher is not statutorily disabled as of March 10, 1998, is supported by substantial evidence in the record as a whole and therefore must be affirmed. In particular, the Commissioner argues that the ALJ's assessment of Plaintiff Dreher's residual functional capacity is supported by substantial evidence; Plaintiff, not the Commissioner or the ALJ, bears the burden of showing disability, which he failed to do; Plaintiff's exertional limitations are consistent with his past relevant work and substantial numbers of other jobs available in the national economy; and that the hypothetical presented to the vocational expert was properly based on the medical expert's opinions rather than those of Plaintiff's treating physicians. Defendant Commissioner further argues that if substantial evidence does not support the Commissioner's decision, the appropriate remedy is not to award benefits, but to remand.
Judicial review of the Secretary's decision is limited to a determination of whether that decision is supported by substantial evidence in the record as a whole. 42 U.S.C. § 405 (g); Murphy v. Sullivan, 953 F.2d 383, 384 (8th Cir. 1992). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389 (1971). It is more than a "mere scintilla" of evidence but less than a preponderance.Id. Where such evidence exists, a court is required to affirm the Secretary's factual findings. Id. at 402; Turpin v. Bowen, 813 F.2d 165, 169 (8th Cir. 1987).
The reviewing court must consider both evidence that supports and evidence that detracts from the Secretary's decision. Clarke v. Bowen, 843 F.2d 271 (8th Cir. 1988). The Court is required to review the administrative record and to consider:
1. The credibility findings made by the ALJ.
2. The plaintiff's vocational factors.
3. The medical evidence from treating and consulting physicians.
4. The plaintiff's subjective complaints relating to exertional and non-exertional activities and impairments.
5. Any corroboration by third parties of the plaintiff's impairments.
6. The testimony of vocational experts when required which is based upon a proper hypothetical question which sets forth the claimant's impairments.Cruse v. Bowen, 867 F.2d 1183 (8th Cir. 1989).
The Social Security Act defines disability as 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 12 months. 42 U.S.C. § 423 (d), 1382(c)(1)(3)(A); Battles v. Sullivan, 902 F.2d 657, 659 (8th Cir. 1990); Driggens v. Harris, 657 F.2d 187 (8th Cir. 1981). In making a determination of disability, "the Secretary shall consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity." 42 U.S.C. § 423 (d)(2)(B). The burden of establishing the existence of a disability is on the Plaintiff. Thomas v. Sullivan, 928 F.2d 255, 260 (8th Cir. 1991); Webber v. Secretary of Health Human Services, 784 F.2d 393 (8th Cir. 1986).
Pursuant to the Act, the Secretary promulgated a five-step analysis to be followed by the ALJ in determining whether a claimant is disabled:
1. Has the claimant engaged in substantial gainful activity since the alleged onset disability?
2. Is the claimant suffering from severe impairment?
3. Does the claimant's impairment meet or equal the Listing of Impairments?
4. Does the claimant have the residual functional capacity (RFC) to perform claimant's past relevant work?
5. If claimant is unable to perform past relevant work, is there any other work in the national economy that claimant can perform?20 C.F.R. § 416.920 (b)-(f); Bowen v. Yuckert, 482 U.S. 137 (1987).
At step one of the sequential evaluation in the present case, ALJ Berkowitz found that Plaintiff Dreher has not engaged in substantial gainful activity since his alleged onset date of March 10, 1998. Tr. 29. At steps two and three, the ALJ found that the medical evidence of record establishes that Plaintiff Dreher "has hypertension, evolving osteoarthritic [sic] in the hands, DIP joint nodules, and chronic disc disease at the neck and lumbar levels with chronic myofascial pain syndrome and chronic tension myalgia symptoms," but at no time has he had an impairment or combination of impairments listed in, or medically equal to one listed in the Listing of Impairments contained in Appendix 1, Subpart P, Regulations No. 4. Id. At step four, the ALJ found that Plaintiff Dreher retained a functional capacity for light work as defined in C.F.R. § 404.1568(b): "Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." Because the exertional requirements of Plaintiff's past work as a product development engineer are within the weight limitations of light work, the ALJ found that Plaintiff has no disability that prevents him from performing his past relevant work. Tr. 30. Therefore, the ALJ found that Plaintiff was not disabled, and that no step five finding was required.
This Court has reviewed the entire record and all arguments of counsel, and finds that the ALJ's decision is not supported by substantial evidence in the record as a whole. The Court respectfully disagrees with the Commissioner's arguments in support of his motion for summary judgment, and finds the ALJ's decision deficient in several respects. Since the requisite analysis in claims for Social Security benefits is a sequential one, the ALJ's initial findings must be sound in order to support the latter findings. The record in the present case simply does not support sound findings in any of the sequential steps beyond step one.
ALJ Berkowitz erred when he substituted his own judgment for that of consulting and treating physicians and a consulting psychologist. The opinions and conclusions of treating medical providers are entitled to great deference by the ALJ. See Gude v. Sullivan, 956 F.2d 791, 793-794 (8th Cir. 1992); Cline v. Sullivan, 939 F.2d 560, 569 (8th Cir. 1991);Piercy v. Bowen, 835 F.2d 190, 191-192 (8th Cir. 1987). Furthermore, it is improper for the ALJ to interpose his own medical judgment in place of the treating physician. Id. Making medical and psychological conclusions is not within an ALJ's purview. See Morse v. Shalala, 32 F.3d 1228, 1230 (8th Cir. 1994) (finding that the ALJ made medical and psychological conclusions without substantial evidence to support his findings one factor warranting reversal).
The ALJ in the present case failed to give the requisite deference to the opinions and conclusions of Plaintiff's treating physician David R. Eckes, M.D. The ALJ concludes that "although Dr. Eckes is the claimant's treating physician, he is only a family practitioner whose expertise does not include the fields of Orthopaedic or Physical Medicine and Rehabilitation; thus, his limitation . . . cannot be giving [sic] controlling weight." Tr. 26. The ALJ is correct when he notes that findings of disability and RFC are reserved to the Commissioner, 20 C.F.R. § 404.1527 (e), but incorrectly expands that to exclude Dr. Eckes' observations about Plaintiff's condition.
In addition to improperly discounting Plaintiff's treating physician, ALJ Berkowitz interposed his own judgment for that of the Commissioner's psychological and psychiatric experts. Psychologist Sharon Fredriksen, Ph.D., L.P., who completed a Psychiatric Review Technique and Mental Residual Functional Capacity Assessment for the Commissioner, found that Plaintiff suffers from a severe impairment, though it does not in itself meet or equal a listed impairment. She found that Plaintiff suffers from mild depression due to chronic pain. Tr. 210. She found that Plaintiff's depression slightly restricts his activities of daily living and ability to maintain social functioning, and often leads to deficiencies of concentration, persistence or pace. Tr. 214. She further found that Plaintiff had a mental RFC sufficient to perform semiskilled work, but pain and decreased concentration "precludes former professional duties" and that Mr. Dreher "should avoid highly stressful or demanding situations." Tr. 218. Later, ALJ Berkowitz completed a Psychiatric Review Technique Form of his own, concluding that Plaintiff does not have a severe mental impairment, and that such impairment as he does have does not restrict his activities of daily living and ability to maintain social functioning, and seldom leads to deficiencies of concentration, persistence or pace. Tr. 31, 38.
As an explanation for why he found no severe impairment in the form of depression and the resultant impaired concentration, ALJ Berkowitz notes that Plaintiff was oriented to time and demonstrated basic mental functioning when Dr. Karayusuf examined him. Tr. 21. This Court does not know, nor does the ALJ explain, how an orientation to time is inconsistent with depression. While the record does show that Plaintiff's depression is not so severe that it is itself disabling, the ALJ may not discount it entirely or create findings contrary to the Commissioner's consultative experts. Indeed, the record indicates that Plaintiff's ability to subtract serial sevens was average, Tr. 21, 206, which in light of Plaintiff's past work as an engineer, indicates mental impairment that "precludes former professional duties." Tr. 218.
In stating that he "did not find the claimant to be a credible witness", (Tr. 17), and concluding that many of Plaintiff Dreher's subjective complaints of pain and limitations resulting from his impairments were simply not supported by the medical and other evidence in the record, the ALJ failed to conduct a meaningful analysis pursuant to the requirements of Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (subsequent history omitted). The Polaski court held that "the absence of an objective medical basis which supports the degree of severity of subjective complaints alleged is just one factor to be considered in evaluating [a claimant's] credibility." Polaski, 739 F.2d at 1322. In addition, the Polaski court stated that, when deciding the credibility of subjective complaints, an ALJ must also consider all the evidence relating to subjective complaints,
including the claimant's prior work record, and observations by third parties and treating and examining physicians relating to such matters as:
1. the claimant's daily activities;
2. the duration, frequency and intensity of the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of medication; and
5. functional restrictions.
Id. The Polaski court further noted that subjective complaints may be discounted if there are inconsistencies in the record as a whole Id. see also Carlock v. Sullivan, 902 F.2d 1341, 1343 (8th Cir. 1990).
First, the ALJ misconstrued the Plaintiff's daily activities. Plaintiff is planning a move to a smaller, one-story house, and travels to the construction site each day to survey the progress. Tr. 28, 50. He is doing so because he is no longer able to maintain a larger house. Id. Plaintiff also does chores around the house and light maintenance on family vehicles. Tr. 28, 51. This weighs in favor of Plaintiff's claimed need to change positions frequently, not against the credibility of his subjective complaints. Mowing the grass, plowing, and grooming a backyard ice skating rink with a lawn tractor, Tr. 28, 53-54, is entirely consistent with Plaintiff's complaints, since sitting on such a machine requires no more exertion than driving a car. If anything, the fact that Plaintiff has mechanized these tasks over time, Tr. 53, suggests that his condition has slowly deteriorated, leaving him incapable of using a push mower or other similar manual tools.
Contrary to the ALJ's assertion that Plaintiff shops for groceries, Tr. 28, Plaintiff does not, Tr. 53. Worse than this misreading of the record, the ALJ mentions only those activities which create the impression that Plaintiff's activities are only slightly limited. Other activities and reported limitations weigh in favor of Plaintiff's subjective, non-exertional complaints. Plaintiff tries to vacuum, but "pay[s] for it every time." Tr. 53. He has given up hunting and fishing. Tr. 53. He takes bed rest for one or two hours each afternoon. Tr. 51.
The ALJ misreads the record when he says that Plaintiff "is in bed by 11:00 or 12:00 p.m. and sleeps or rests for six hours." Tr. 28. Plaintiff testified at the hearing that his "biggest problem, is, continuity of rest." Tr. 54. Plaintiff testified that he frequently does not fall asleep until 2:00 or 3:00 a.m., and sometimes has to get up to lessen his pain. Tr. 54. Plaintiff's subjective complaint is that "I may or may not be able to sleep, so consequently what happens is that if you can't sleep, you can't work." Tr. 56. The ALJ fails to note this complaint and the effect the consequent chronic fatigue might have on an engineer's work.
The second Polaski factor is a consideration of "the duration, frequency and intensity of the pain." 739 F.2d at 1322. The ALJ's reliance on Benskin v. Bowen, 830 F.2d 878 (8th Cir. 1987), and Rautio v. Bowen, 862 F.2d 176 (8th Cir. 1988) is misplaced. Benskin involved a claimant who had not seen a physician in three years, and took only Advil and aspirin for her pain, and a treating physician's progress notes indicated minimal pain. 830 F.2d at 880-881. Plaintiff Dreher's eleven year history of treatment for his condition is not comparable. As rheumatologist David J. Ridley, M.D. noted, Plaintiff "has been through almost every modality that can be attempted to see if he will improve." Tr. 234. Plaintiff listed several of those modalities in his hearing testimony. Tr. 58.
In addition to back pain, Plaintiff complains of incapacitating headaches that used to last from three to four hours, but now take as much as two days to resolve. Tr. 56. It may be true that in the midst of such a headaches, Plaintiff could lift twenty pounds, but that fails to account for the way a severe headache would interfere with concentration, especially the level of concentration required of an engineer. See Tr. 70 ("you have to read and be able to interpret what you're reading . . . if you have to deal with lingering pain in your back, in the back of your mind all the time it makes it extremely difficult to be at ease while you're trying to be mentally efficient. It's a difficult task.")
While it is true that "failure to seek aggressive treatment is not suggestive of disabling back pain," Rautio, 862 F.2d at 179, the record here shows more aggressive treatment than the ALJ's findings suggest. Plaintiff testified that he was once considered a candidate for a "double level cage fusion," but a later MRI showed that he was no longer a good candidate for such a procedure. Tr. 57-58, 245, 251. Indeed, such a procedure had a predicted success rate of only 20%. Tr. 252. As Dr. Eckes noted, "University of Minnesota physicians didn't advocate effusion [sic] for him so he is sitting there with a lot of pain and standing with a lot of pain and secondary emotional overlay including anxiety and depression." Tr. 245.
There is one mention of refusing surgery in a June 7, 1999 note from Dr. Eckes in which he says "Patient refused H. fusions for his lumbar disc disease." Tr. 246. This cryptic statement seems to conflict with all of the other information in the record, so it cannot serve as the sole reason for the assertion that Plaintiff has not sought treatment consistent with his complaints. Tr. 7.
Third, The ALJ fails to account for precipitating and aggravating factors. Plaintiff testified that certain positions and activities trigger headaches. Tr. 56, 61, 64, 80. Plaintiff further testified as to what activities and positions aggravated his back pain, and what he did to lessen it. Tr. 55-64. The ALJ's analysis simply fails to account for these factors.
As to dosage, effectiveness, and side effects of medication, the ALJ concludes that Plaintiff is "not suffering from any side effects." Tr. 27. Again, Plaintiff's uncontroverted testimony suggests otherwise. Tr. 64, 69 ("Both pain and medication affects concentration"). The ALJ does not explain why that testimony is given no weight. It is conceivable and even probable that medications such as those Plaintiff takes —i.e., Cygotec, Naproxen, Choloraxazone, Endoset, Norflex, Propoxifine, Prozac, Atenolol and Methaprednizone (Tr. 153-154), some of which are narcotic — can have an effect, especially in combination, on the cognitive abilities essential to an engineer. It is inexcusable error for the ALJ to have made such an unsubstantiated finding regarding the potential side effects of Mr. Dreher's medications.
The ALJ's findings as to physical functional restriction are supported by the record as a whole. What is missing, however, is an analysis of the way pain, fatigue, depression, and side effects of medication combine to limit Plaintiff's mental functioning. The Commissioner's Medical Expert, Dr. Andrew M. Steiner, acknowledged that depression and pain "go together." Tr. 35. A complete Polaski analysis requires an assessment of these non-exertional limitations.
The Plaintiff's prior work record supports his claims. The ALJ seems to conclude that, since Plaintiff receives payments from employer-sponsored disability insurance, Plaintiff is not motivated to work, and is therefore not credible. Tr. 28. However, if Plaintiff lacked motivation to work, he might have sought disability status ten years ago when he was first diagnosed, rather than completely depleting his 3M sick leave and vacation time as his attendance at work deteriorated. Tr. 174-179. Plaintiff tried to negotiate work arrangements consistent with his limitations, but 3M was unable to accommodate him, and suggested he apply for disability benefits. Tr. 55-56, 65-66. The Army Reserve discharged Mr. Dreher, as medically unqualified, after twenty-nine years of service because he was unable to meet the medical retention standards such as the ability to wear a helmet, carry a back back, and carry a weapon. Tr. 59, 67-68, 112, 128. Later, in February, 2000, Plaintiff sought to return to work at 3M. Tr. 279. A proper analysis must consider this evidence.
Because the ALJ's findings of fact are not based on substantial evidence in the record as a whole, the hypotheticals posed to the Vocational Expert, and the conclusions drawn from them, are not reliable indicators of whether Plaintiff can return to his past relevant work or other work.
Plaintiff is correct in asserting that it is the duty of the ALJ to develop the record he needs in order to make an informed decision. See Warner v. Heckler, 722 F.2d 428, 431 (8th Cir. 1983) ("It is the administrative law judge's duty to develop the record fully and fairly even if, as in this case, the claimant is represented by counsel"); see also 42 U.S.C. § 423(d)(5)(B). It is important not to confuse the ALJ's duty to develop the record with the Plaintiff's burden of persuasion. The ALJ, in his capacity as fact-finder, is to gather such material as is necessary to find whether the Plaintiff is disabled.
The Court finds unresolved at this juncture the issue of whether the medical findings and properly considered subjective complaints relative to Plaintiff's physical impairments are medically equivalent to, either alone or in combination, any of the impairments contained in the Listing of Impairments; and whether Plaintiff's mental impairments and pain are medically equivalent to any of the Listings, either by themselves or in combination with each other, or in combination with his physical impairments.
Accordingly, the Court recommends that this matter be remanded to the Commissioner for further development of the record as described above and a subsequent re-hearing with a medical expert and a psychological or psychiatric expert testifying on the issues presented by the combination of Plaintiff's physical and mental impairments. A complete record will include information on Plaintiff's claimed need to lie down during the day, history of surgical consultations, and the side effects of plaintiff's medications. Imaging studies not a part of surgical consultations are unnecessary; it is undisputed that Plaintiff Dreher suffers from degenerative disc disease, and Plaintiff has not shown how imaging studies would otherwise assist in making a disability determination.
As such, the Court recommends that the Defendant's Motion for Summary Judgment be denied, and Plaintiff's Motion for Summary Judgment be denied as to a reversal and outright award of benefits, but granted as to the alternative relief requested and that the Commissioner's decision be reversed and the case remanded for further administrative proceedings consistent with this Report and Recommendation.
Based on the foregoing, and all the files, records, and proceedings herein,
IT IS HEREBY RECOMMENDED that:
1) Plaintiff Kenneth Dreher's Motion for Summary Judgment (Doc. No. 7) be DENIED as to outright reversal and award of benefits, but GRANTED as to the alternative relief requested, and that the Commissioner's decision be REVERSED and the case be REMANDED for further administrative proceedings consistent with this Report and Recommendation; and
2) Defendant Commissioner's Motion for Summary Judgment (Doc. No. 13) be DENIED.