Opinion
Case No. 2:01-CV-702 DAK.
June 5, 2003.
REPORT RECOMMENDATION
Plaintiff filed suit seeking judicial review of the decision of the Commissioner denying his applications for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401-434, 1381-1383f, respectively. The case was referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B).
I. PROCEDURAL HISTORY
Plaintiff applied for benefits on November 24, 1999 (protective filing date), alleging that he became unable to work on November 10, 1999 due to back and hand problems, vision and hearing impairments, and recurring hernias. (Tr. 96-99, 190-93, 118.) Plaintiff's applications were denied initially, (Tr. 85, 87-89, 194-97), and on reconsideration, (Tr. 86, 91-93, 198-201). After a hearing held December 19, 2000, (Tr. 35-84), an Administrative Law Judge (ALJ) determined that Plaintiff was not disabled because he was capable of performing his past relevant work. (Tr. 17-18.) The Appeals Council declined to review the ALJ's decision, making it the final decision of the Commissioner. (Tr. 5-6.)
II. SUMMARY OF EVIDENCE
A. Background
Plaintiff was born September 24, 1939, and was sixty-one years old at the time of the hearing. (Tr. 38, 97.) He has a tenth-grade education (Tr. 124), and previously worked as a custodian, janitor, assembler, and laborer. (Tr. 72-74, 109-10, 119.)
B. Evidence Presented at the Administrative Hearing
1. Plaintiff's Testimony
Plaintiff did not have health insurance, and had not seen a doctor since he quit working, except for the consultative examinations obtained in connection with his disability claim. (Tr. 48-50.) He had not investigated whether he might be eligible for free or low-cost medical care, or Medicaid. (Tr. 51-52.)
He testified that he had pain in his back and neck that was present all the time. (Tr. 40, 41.) He did not take medication for the pain, however, and could not afford it. (Tr. 40, 52.)
In addition to his back pain, Plaintiff had several other problems including a hand injury that caused him difficulty in gripping things. (Tr. 46.) He also had eye problems as a result of an accident at work in which an aerosol can exploded and blew metal fragments into his eyes. Since then, he had experienced burning eyes and blurry vision at times. (Tr. 46-47.) In addition, his doctor had told him he had emphysema. (Tr. 48.)
Regarding his abilities, Plaintiff testified that he could sit for one-half hour at a time, stand for one-half hour at a time, and walk for an hour. (Tr. 40-41, 58.) He stated that he did not think he could lift over twenty or thirty pounds, if that. (Tr. 47.) He had a driver's license, but he could drive only about an hour at a time. A couple of weeks earlier, he had shoveled a little bit of snow, but it hurt his back. (Tr. 57.)
At the time of the hearing, Plaintiff was working at a temporary job, taping boxes. He performed this job in a kneeling position. (Tr. 60.)
In response to questioning about his daily activities, Plaintiff stated that he had been working the graveyard shift the past two weeks. He went to work at 11:00 p.m. and returned home about 8:00 or 9:00 a.m. He stated that the work wore him out and that his back hurt from being on his feet. (Tr. 41.) When he got home, he would go to bed and sleep or rest. (Tr. 42.) He fixed his own meals, usually something that could be heated in a microwave oven or a sandwich. (Tr. 42.) He could do some housework including vacuuming, dusting, washing dishes, changing sheets, and doing laundry, but he had to rest between chores. (Tr. 42-44.)
Regarding recreational activities, Plaintiff stated that he used to go fishing and camping, but he could no longer do those activities. He did not have any hobbies, and did not read or watch TV. (Tr. 44-45.) Once in awhile, he would go out to see friends, and sometimes saw his children. (Tr. 45-46.)
2. Testimony of Plaintiff's Brother
Plaintiff's brother, Maurice Howard, testified that he had moved in with Plaintiff about twelve month earlier and had been helping him. Mr. Maurice Howard stated that Plaintiff had previously worked at an onion shed where he had to push crates of onions along rollers eight hours a day. (Tr. 61-62.) He stated that Plaintiff's back was bothering him, and then he "ruptured himself" and could not push the crates anymore. As a result, Plaintiff's employer put him outside where he worked eight hours a day pushing crates in ten-degree weather with nothing to keep him warm but a bonfire. (Tr. 62.)
Mr. Maurice Howard stated that when Plaintiff came home from work, he sometimes slept for twenty-four hours and did not hear his alarm. (Tr. 62-63.)
Regarding Plaintiff's abilities, Mr. Maurice Howard stated that he was not capable of leaving a message on an answering machine. (Tr. 63.) He did not have a checking account, and did not know how to use an ATM machine. (Tr. 64.) He could not dig up trees in the yard, irrigate, or rake leaves. (Tr. 63-64.) He did shovel a small amount of snow from the front walk, but he had to let the driveway go. (Tr. 64.)
Mr. Maurice Howard stated that Plaintiff had tried to get medical help through the State, but he was denied assistance because he was living in his mother's house and did not pay rent. (Tr. 64.) However, his mother had recently passed away, and the family was going to be forced to sell the house to satisfy a lien against it. (Tr. 64, 65.)
On examination by the ALJ, Mr. Maurice Howard testified that Plaintiff might be able to do the job of a security guard where he could sit down and get up and walk around. (Tr. 67.) Mr. Maurice Howard thought Plaintiff could walk twenty or thirty minutes at a time. (Tr. 68.) He could drive or ride in a car for about an hour. (Tr. 70.) Regarding his ability to lift and carry, Mr. Maurice Howard thought that Plaintiff was capable of lifting thirty or forty pounds about once an hour and carrying it the length of the hearing room which was about twenty-one feet. (Tr. 70-71.)
3. Testimony of the Vocational Expert
The Vocational Expert (VE) testified that Plaintiff's past relevant work as a custodian would be classified as medium, unskilled work. (Tr. 78.) The ALJ questioned the VE about a hypothetical individual of claimant's age, education, and past relevant work experience who could lift thirty to forty pounds and carry it about twenty-one feet about once an hour. The individual could do a full range of light lifting, and could sit, stand, and walk for about an hour at a time for a total of five or six hours in an eight-hour day. He could climb only three or four stairs a day, and would have occasional problems gripping objects. He could not do any tasks that required fine hearing or vision. (Tr. 79.) The VE responded that such an individual would be capable of performing Plaintiff's past relevant work as a custodian. (Tr. 80.)
"Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." 20 C.F.R. § 404.1567(c), 416.967(c).
C. Medical Evidence
1. Hernias
Records from Cooley Memorial Hospital in Brigham City, Utah, indicate that in 1975, Plaintiff underwent surgery to repair a right inguinal hernia. (Tr. 149-52.) In May 1997, Plaintiff had a left inguinal hernia repaired at Columbia Brigham City Community Hospital. (Tr. 157-59.)
2. Hand Injuries
An "Employer's Report of Injury or Occupational Disease" shows that in 1989 plaintiff cut his right hand while working on a belt grinder. (Tr. 103.) A "Medical Report of Industrial Injury" filed with the State Industrial Commission indicates that the injury was a three centimeter laceration with the bone exposed. (Tr. 153.)
3. Chronic Obstructive Pulmonary Disease
Chest x-rays from November 1994 and April 1997 show that Plaintiff has chronic obstructive pulmonary disease. (Tr. 156.)
4. Physical Examination by Dr. Ingebretsen
Richard J. Ingebretsen, M.D., examined Plaintiff in January 2000 at the request of the agency. Plaintiff told Dr. Ingebretsen that he had suffered from back problems for many years. While working at Utah Onion pushing boxes, his back gradually began to hurt to the point that he could not push them anymore. Plaintiff's pain was in his lower back, but without pain going down his legs. He stated that he had done a lot of lifting on his jobs and also had a slight hernia from this work. He stated that when he was working, he could "hardly walk and could not lift at all." (Tr. 168.) However, he had not seen a doctor or taken medication for this condition. (Tr. 168.)
Examination revealed no tenderness over the cervical, thoracic, or lumbar spine. (Tr. 169.) There was no pain with palpation of the posterior elements of the spine. However, Plaintiff experienced minor pain with flexion, and some pain with lateral bending, and rotation of the spine. (Tr. 170.)
Grip strength was 5/5 in both hands. (Tr. 170.) There was some sensory loss on the top of the right hand. (Tr. 169.)
Dr. Ingebretsen noted that Plaintiff could hear and understand his speech, but Plaintiff was a little slow in speech and in responding to Dr. Ingebretsen's requests. (Tr. 170.)
In summarizing his impression, Dr. Ingebretsen observed that Plaintiff was "a very simple and straight forward person." (Tr. 170.) He stated that Plaintiff suffered from minor back pain. He noted that on examination, Plaintiff did not have any acute symptoms, and had a full range of motion in his back with only minor pain, and no paraspinous muscle spasms. He walked normally, although somewhat slowly, but without limping and without the use of a cane. (Tr. 170.)
Dr. Ingebretsen concluded that although Plaintiff did not have acute symptoms, it was his impression that when forced to lift, push, or exert his back, Plaintiff's symptoms were exacerbated and he could not perform the work he was trained to do. Dr. Ingebretsen believed that Plaintiff had been taking care of his back, and that as a result, his symptoms were reduced at the time of the examination. (Tr. 171.)
5. Radiography of the Spine
X-rays taken in January 2000 revealed mild to moderate degenerative disk disease throughout the cervical spine which was most severe in the lower cervical spine at C5-6, C6-7, and C7-T1. Plaintiff had moderate to severe degenerative disk disease throughout the lumbosacral spine which was most severe at L4-5 and L5-S1. There were also degenerative changes in the posterior zygapophyseal joints in the cervical and lumbar areas. The x-rays also showed mild osteoporosis. (Tr. 172.)
6. Ophthalmology Report
On January 21, 2000, Plaintiff saw Kim Y. Taylor, M.D., an ophthalmologist, at the request of the agency. Dr. Taylor noted that about a year and a half earlier, something, which Plaintiff thought was an aerosol can, blew up and hit him in the eyes, causing sore eyes. He was treated with drops for about two weeks, and seemed to be reasonably well. However, since that time he had experienced chronic, recurrent burning of the eyes and crusting of the eyelids. (Tr. 173.) On the right eye, there was a small radial peripheral corneal scar, and an anterior stromal scar on the left eye. (Tr. 173.) His vision without correction was 20/25 on the right and 20/25 on the left. (Tr. 173.) Dr. Taylor's diagnosis was (1) chronic blepharitis, (2) presbyopia, and (3) corneal scar not affecting vision. (Tr. 174.)
7. Audiology Report
On January 26, 2000, audiologists Garr Crookston and Dave Robinson performed an audiometric examination and hearing aid consultation at the request of the agency. They noted that Plaintiff had some difficulty answering the written questions on the intake form, but was able to answer verbal question adequately. Testing showed that plaintiff had mild hearing loss in the low frequencies in both ears, with severe high-frequency loss in the left ear, and a severe to profound high-frequency loss in the right ear. His word recognition scores were 64% in the left and 48% in the right. The audiologists stated that individuals with Plaintiff's type of hearing loss experience difficulties hearing speech clearly, particularly when there is background noise. They recommended hearing aids for both ears. (Tr. 177.)
8. Dr. MacKay's Report
On January 15, 2001, D.C. MacKay, M.D., saw Plaintiff to evaluate his back problems. Dr. MacKay stated that Plaintiff had "chronic low back pain with severe degenerative arthritis and degenerative disc disease of the lumbosacral spine and degenerative disc disease of the cervical spine and thoracic spine pain." (Tr. 189.) Dr. MacKay stated that due to the severe arthritic condition, Plaintiff must avoid heavy manual labor. Dr. MacKay further stated that he would impose a maximum lifetime lifting limit of twenty pounds so that Plaintiff would not continue to worsen his spine condition. (Tr. 189.)
III. DISCUSSION
A. Legal Standard
Under the Social Security Act, "disability" is defined 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)(1)(A), 1382c(a)(3)(A). The Act further provides that an individual shall be determined to be disabled "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A), 1382c(a)(3)(B).
A person seeking Social Security benefits bears the burden of proving that because of his disability, he is unable to perform his prior work activity. Miller v. Chater, 99 F.3d 972, 975 (10th Cir. 1996); Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993); Andrade v. Secretary of HHS, 985 F.2d 1045, 1050 (10th Cir. 1993). Once the claimant establishes that he has such a disability, the burden shifts to the Commissioner to prove that the claimant retains the ability to do other work and that jobs which he can perform exist in the national economy.Saleem v. Chater, 86 F.3d 176, 178 (10th Cir. 1996); Miller, 99 F.3d at 975; Nielson, 992 F.2d at 1120.
The Commissioner's decision must be supported by substantial evidence. Daniels v. Apfel, 154 F.3d 1129, 1132 (10th Cir. 1998); Hinkle v. Apfel, 132 F.3d 1349, 1351 (10th Cir. 1997);Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Hinkle, 132 F.3d at 1351; Brown v. Callahan, 120 F.3d 1133, 1135 (10th Cir. 1997). Evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion. Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992); Emory v. Sullivan, 936 F.2d 1092, 1093 (10th Cir. 1991).
The Commissioner's findings of fact, if supported by substantial evidence, are conclusive upon judicial review. 42 U.S.C. § 405(g), 1383(c)(3); Perales, 402 U.S. at 390. In reviewing the Commissioner's decision, the court may not reweigh the evidence or substitute its judgment for that of the agency.Hinkle, 132 F.3d at 1351; Decker v. Chater, 86 F.3d 953, 954 (10th Cir. 1996); Marshall v. Chater, 75 F.3d 1421, 1425 (10th Cir. 1996); Kelley v. Chater, 62 F.3d 335, 337 (10th Cir. 1995). However, the court should carefully examine the record and review it in its entirety. Musgrave, 966 F.2d at 1374;Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988).
Failure of the Commissioner to apply the correct legal standard is also grounds for reversal. Daniels, 154 F.3d at 1132; Hinkle, 132 F.3d at 1351; Hawkins, 113 F.3d at 1164;Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996).
The Commissioner has established the following five-step process for determining whether a person is disabled:
(1) A person who is working is not disabled. 20 C.F.R. § 416.920(b).
(2) A person who does not have an impairment or combination of impairments severe enough to limit his ability to do basic work activities is not disabled. 20 C.F.R. § 416.920(c).
(3) A person whose impairment meets or equals one of the impairments listed in the "Listing of Impairments," 20 C.F.R. § 404, subpt. P, app. 1, is conclusively presumed to be disabled. 20 C.F.R. § 416.920(d).
(4) A person who is able to perform work he has done in the past is not disabled. 20 C.F.R. § 416.920(e).
(5) A person whose impairment precludes performance of past work is disabled unless the Secretary demonstrates that the person can perform other work available in the national economy. Factors to be considered are age, education, past work experience, and residual functional capacity. 20 C.F.R. § 416.920(f).
Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988).
In the instant case, the ALJ performed the sequential analysis, finding as follows: (1) Plaintiff had not engaged in substantial gainful activity since November 10, 1999 (Tr. 12.); (2) he had severe impairments including "back and neck disorders (discogenic and degenerative) and a mild hearing loss" (Tr. 13); (3) he did not have an impairment or combination of impairments that met or equaled the listings (Tr. 14); and (4) he was capable of performing his past relevant work as a custodian (Tr. 17). Based on these findings, the ALJ concluded that Plaintiff was not disabled as defined by the Social Security Act. (Tr. 17-18.)
In this court, Plaintiff raises three issues: (1) the ALJ failed to consider the cumulative effect of his combined impairments; (2) the ALJ failed to develop the record regarding his disabilities; and (3) the ALJ improperly determined that he was capable of performing his past work.
B. Listed Impairment
The Listing of Impairments (the "listings") found at 20 C.F.R. pt. 404, subpt. P, app. 1 (pt. A) describes various physical and mental abnormalities and illnesses categorized by the body system they affect. Sullivan v. Zebley, 493 U.S. 521, 529-30 (1990); Davidson v. Secretary of HHS, 912 F.2d 1246, 1252 (10th Cir. 1990). The purpose of the listings is to provide a description of impairments that are considered so severe as to give rise to a conclusive presumption of disability, thereby streamlining the disability determination process. Bowen v. Yuckert, 482 U.S. 137, 153 (1987); Zebley, 493 U.S. at 532;Bowen v. City of New York, 476 U.S. 467, 470-71 (1986);Davidson, 912 F.2d at 1252.
To match the listings, an impairment must manifest all of the specified medical criteria. If the impairment is comprised of only some of the criteria, no matter how severe, it will not qualify. Zebley, 493 U.S. at 530; accord Davidson, 912 F.2d at 1252.
Because the listings could not possibly include every impairment severe enough to prevent the claimant from engaging in any gainful activity, the regulations provide guidance for determining whether an unlisted impairment or combination of impairments is medically equivalent to a listed impairment.Davidson, 912 F.2d at 1251-52; see 20 C.F.R. § 404.1526, 416.926 (2002). In order to establish that a combination of impairments is "equivalent" to a listed impairment, a claimant must present medical findings equal in severity to all of the criteria of the one listed impairment most similar to the claimant's most severe impairment. 20 C.F.R. § 404.1526(a), 416.926(a); Zebley, 493 U.S. at 531; accord Davidson, 912 F.2d at 1252.
The question whether a claimant meets or equals a listed impairment must be based on medical evidence alone. 20 C.F.R. § 404.1529(d)(3); 416.929(d)(3); Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1991). Thus, a claimant cannot qualify under the "equivalence" test by showing that the functional impact of his impairments is as severe as that of a listed impairment.Zebley, 493 U.S. at 531; accord Davidson, 912 F.2d at 1252. The claimant has the burden of establishing that his impairment or combination of impairments is equivalent to a listed impairment. See Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993); Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988).
In the instant case, Plaintiff argues that his combined impairments are medically equal to a listed impairment. In support of this argument, Plaintiff points to the x-rays showing that he suffers from degenerative disk disease. (Tr. 172.) He states that his back problems alone may be enough to satisfy a listing, but when considered cumulatively with his hernias, hand problems, hearing loss, poor vision, and chronic obstructive pulmonary disease, he meets the medical equivalent of a listed impairment.
Plaintiff has not explained how his combination of impairments could be considered medically equal to a listed impairment. See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001) (noting that the claimant "has offered no theory, plausible or otherwise, as to how his [impairments] combined to equal a listed impairment."). As discussed above, a claimant cannot meet the "equivalence" test by showing that the functional impact of his combined impairments is as severe as that of a listed impairment. Zebley, 493 U.S. at 531.
Plaintiff also argues that the case should be remanded because the ALJ committed legal error by failing to discuss the evidence and to explain the reasons that Plaintiff's impairments did not meet or equal a listing. As Plaintiff suggests, the ALJ is required to discuss the evidence and explain why the claimant is not disabled at step three. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996); Drapeau v. Massanari 255 F.3d 1211, 1213 (10th Cir. 2001). Further, it is true that the ALJ in this case did not give a detailed explanation for his finding that Plaintiff's impairments did not equal the listings. However, remand is not appropriate because substantial evidence supports the ALJ's conclusion.
The ALJ stated that he had compared Plaintiff's impairments to the listed impairments, particularly sections 1.05 (disorders of the spine) (now 1.04) and 2.08 (hearing impairments). At the time of the ALJ's decision, section 1.05 contained the following requirements:
The listings were revised effective February 19, 2002. Among other changes, the listing for spinal disorders was renumbered from section 1.05 to section 1.04. 66 Fed. Reg. 58,010, 58,017-18 (Nov. 19, 2001).
Although the new listing for disorders of the spine contains significant changes, the court need not address the question whether it should be applied retroactively because the court concludes that the objective medical evidence would not support a finding that Plaintiff's condition satisfies the revised listing.
1.05 Disorders of the spine:
A. Arthritis manifested by ankylosis or fixation of the cervical or dorsolumbar spine at 30° or more of flexion measured from the neutral position, with X-ray evidence of:
1. Calcification of the anterior and lateral ligaments; or
2. Bilateral ankylosis of the sacroiliac joints with abnormal apophyseal articulations; or
B. Osteoporosis, generalized (established by X-ray) manifested by pain and limitation of back motion and paravertebral muscle spasm with X-ray evidence of either:
1. Compression fracture of a vertebral body with loss of at least 50 percent of the estimated height of the vertebral body prior to the compression fracture, with no intervening direct traumatic episode; or
2. Multiple fractures of vertebrae with no intervening direct traumatic episode; or
C. Other vertebrogenic disorders (e.g., herniated nucleus puplosus, spinal stenosis) with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2:
1. Pain, muscle spasm, and significant limitation of motion in the spine: and
2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.
20 C.F.R. pt. 400, subpt. P, app. 1, § 1.05, as reprinted in 7 Soc. Sec. Law Prac. (West) (June 2001).
It is clear that Plaintiff's condition did not satisfy subsection A which required that arthritis of the spine be manifested by "ankylosis or fixation of the cervical or dorsolumbar spine at 30° or more of flexion," since Dr. Ingebretsen's examination found that Plaintiff had full range of motion of his back with only minor pain. (Tr. 170.)
Regarding subsection B, Plaintiff's x-rays showed that he had mild osteoporosis. However, the listing for osteoporosis required limitation of back motion and paravertebral muscle spasm, neither of which were present on Dr. Ingebretsen's examination. (Tr. 170.) Further, there was no x-ray evidence of vertebral fractures as required by the listing. (Tr. 172.)
Finally, subsection C required the persistence of symptoms for at least three months despite prescribed therapy. Plaintiff did not meet this requirement since he had received no prescribed therapy whatsoever for his condition. Moreover, Plaintiff failed to meet the other requirements of subsection C including muscle spasm, significant limitation of motion in the spine, and "[a]ppropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss."
To satisfy section 2.08 (hearing impairments), a claimant's hearing could not be restorable by a hearing aid. Plaintiff did not qualify under this listing because his audiologists stated that he was "a candidate for hearing aids in both ears and would likely do well with amplification." (Tr. 177.) Accordingly, Plaintiff's listing argument is without merit.
C. Failure to Develop the Record
Plaintiff argues that the ALJ failed to adequately develop the record regarding his disabilities. He asserts that the ALJ should have ordered a consultative examination and should have attempted to obtain the medical records upon which Dr. MacKay based his opinion that Plaintiff could lift no more than twenty pounds.
It is true that the ALJ has a responsibility to develop an adequate record consistent with the issues raised. Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997); Carter v. Chater, 73 F.3d 1019, 1021 (10th Cir. 1996); Glass v. Shalala, 43 F.3d 1392, 1396 (10th Cir. 1994). In the instant case, however, the agency did in fact order several consultative evaluations prior to the hearing, including the examination by Dr. Ingebretsen, the ophthalmological examination by Dr. Taylor, and the hearing evaluation by audiologists Crookston and Robinson. Plaintiff has not explained how additional consultative examinations would have been helpful in resolving the issues in this case.
The Tenth Circuit has stated that when a claimant is represented by counsel, the ALJ ordinarily should be entitled to rely on counsel to present the case in such a way that the claimant's claims are adequately explored. Hawkins, 113 F.3d at 1167. Thus, counsel should ordinarily identify the issues that require further development. Id. Absent such a request by counsel, the ALJ is under no duty to order a consultative examination unless the need for one is clearly established by evidence in the record. Id. at 1168. See Glass, 43 F.3d at 1394-96 (refusing to remand where ALJ had explored the Plaintiff's claims and counsel had not specified the additional information sought).
In the instant case, counsel did not indicate to the ALJ that he thought a consultative examination would be helpful. Even now, he has not specified what type of examination should have been ordered, or explained how it would have assisted in resolving the issues in this case. Accordingly, Plaintiff's assertion that the ALJ should have ordered a consultative examination is without merit.
Next, Plaintiff argues that the ALJ should have attempted to obtain the medical records upon which Dr. MacKay based his opinion that Plaintiff should be limited to lifting no more than twenty pounds. The ALJ rejected this opinion because it was unsupported by clinical records, and because Dr. MacKay apparently had seen Plaintiff on only one occasion. (Tr. 17.)
It is beyond dispute that the claimant has the burden to prove disability in a social security case. Hawkins, 113 F.3d at 1164; Carter, 73 F.3d at 1021. This includes the burden to provide medical evidence proving disability. Carter, 73 F.3d at 1021; see 20 C.F.R. § 404.1512(a), (c), 416.912(a), (c) (stating that the claimant must furnish medical and other evidence regarding his impairments). Although the ALJ has a duty to develop the record by obtaining pertinent medical records that come to his attention during the hearing, Carter, 73 F.3d at 1022, the ALJ is not required to act as the claimant's advocate. Henrie v. United States Dep't of HHS, 13 F.3d 359, 361 (10th Cir. 1993); Musgrave v. Sullivan 966 F.2d 1371, 1377 (10th Cir. 1992).
In the instant case, it appears that Plaintiff saw Dr. MacKay after the hearing for the purpose of obtaining an opinion favorable to his case, rather than for medical treatment. Plaintiff's counsel then submitted Dr. MacKay's opinion to the ALJ, but without the supporting medical records that he now contends the ALJ should have obtained.
See Letter dated 1/26/01 from Tricia Driscoll to the ALJ, Tr. 147-48.
Under similar circumstances, courts have held that an ALJ may reasonably assume from the fact that counsel did not submit the medical records at issue that either such records did not exist or that counsel did not consider them to be important to the plaintiff's case. See Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995) (stating that although the ALJ had a duty to develop the record, the fact that claimant's counsel did not obtain, or at least try to obtain, certain treatment records suggests that they had only minor importance). See Hawkins, 113 F.3d at 1167 (stating "when the claimant is represented by counsel at the administrative hearing, the ALJ should ordinarily be entitled to rely on the claimant's counsel to structure and present claimant's case in a way that the claimant's claims are adequately explored."). If Dr. MacKay possessed medical evidence that would have supported his opinion, Plaintiff should have furnished it to the ALJ at the time he submitted Dr. MacKay's opinion. Further compounding this omission, Plaintiff did not present the medical records to the Appeals Council or to this court, nor has he made a showing that this evidence, if it exists, likely would have resulted in a more favorable decision by the ALJ. See Hawkins, 113 F.3d at 1169 (suggesting that it might be appropriate to require the claimant to prove prejudice where the missing evidence was in existence at the time of the hearing).
It is probable that Dr. MacKay based his medical opinion upon the x-ray report obtained by the agency for the consultative examination by Dr. Ingebretsen, as well as his own examination of Plaintiff. Thus, he likely did not have any additional medical records in his possession other than his examination notes.
It seems eminently reasonable that Plaintiff should bear the burden of providing any evidence in Dr. MacKay's possession that counsel believed would help his case. This is especially true in this case in which Plaintiff apparently saw Dr. MacKay on only one occasion for the sole purpose of obtaining evidence to support his application. Accordingly, the ALJ did not err by failing to reopen the record to obtain Dr. MacKay's records.
D. Determination that Plaintiff Could Perform His Past Relevant Work
At step four of the disability determination, the ALJ must determine whether the claimant can perform his past relevant work. This determination consists of three phases. First, the ALJ must assess the claimant's residual functional capacity (RFC). Second, he must determine the demands of the claimant's past relevant work. In the third phase, the ALJ must compare the claimant's RFC with the demands of his past relevant work to determine whether he has the ability to do his past job, despite his limitations. At each phase, the ALJ is required to make specific findings on the record. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996); Henrie, 13 F.3d at 361; SSR 82-62.
A claimant is considered to be capable of performing his past relevant work if he can perform his actual past job, or if he can perform the type of work he performed in the past as it is generally performed in the national economy. Andrade v. Secretary of HHS, 985 F.2d 1045, 1051 (10th Cir. 1993);Winfrey, 92 F.3d at 1020. In the instant case, after obtaining testimony from the VE, the ALJ determined that Plaintiff could perform his past relevant work as a custodian as it is generally performed in the national economy.
Plaintiff contends that the ALJ improperly concluded that he could perform his past relevant work. Plaintiff bases this argument upon a contention that his residual functional capacity (RFC) was less than that found by the ALJ. The ALJ described Plaintiff's RFC as follows:
The claimant has the residual functional capacity to perform the full range of exertional and non-exertional aspects of work that did not require: lifting more than 30-40 pound about 21 feet, but only having to do this lifting about 1 time an hour at most; stand/walking more than 1 hour at a time, nor more than 5-6 hours in an 8 hour work day; sitting more than 1 hour at a time, nor more than 5-6 hours in an 8 hour work-day; remaining seated or on one's feet, standing or walking (sit/stand option), more than 15-20 minutes at a time; stair climbing of any real significance (he could go up 3-4 steps occasionally); handling breakables (due to some hand and grip problems); fine vision tasks on the job or fine hearing tasks required on the job.
(Tr. 16.)
Plaintiff argues that the ALJ's RFC assessment is not supported by the record. In support of this argument, he notes that Dr. Ingebretsen stated that when Plaintiff "is forced to lift, push or exert his back that his symptoms are exacerbated and he can not perform the work that he is trained to do." (Tr. 171.) In addition, Dr. Ingebretsen indicated that Plaintiff could lift twenty pounds without hurting his back. (Tr. 169.) Similarly, the state agency medical consultants indicated that Plaintiff could lift a maximum of twenty pounds (Tr. 181), as did Dr. MacKay. (Tr. 189.)
It should be noted that in stating that Plaintiff could not do the work he was trained to do, Dr. Ingebretsen apparently was referring to Plaintiff's prior job at the onion shed and other heavy manual labor, rather than his job as a custodian.
In his decision, the ALJ acknowledged these lifting limitations, but noted that the opinion of the state medical consultants was "no longer supportable in light of the testimony of the claimant and his brother." (Tr. 16-17.) In addition, he rejected the opinion of Dr. MacKay because it was not supported by clinical records, and Dr. MacKay had seen Plaintiff on only one occasion. (Tr. 17.)
An ALJ may properly reject a medical opinion, even the opinion of a treating physician, if it is not well-supported or if it is inconsistent with other substantial evidence in the record. Castellano v. Secretary of HHS, 26 F.3d 1027, 1029 (10th Cir. 1994); White v. Barnhart, 287 F.3d 903, 907 (10th Cir. 2002); 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). Factors to be considered include "the length of the treatment relationship, the frequency of examination, and the extent to which the opinion is supported by objective medical evidence."White, 287 F.3d at 907; see 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). In the instant case, these factors all weigh in favor of the ALJ's decision to reject the opinion of Dr. MacKay, since there appears to be no treatment relationship, Dr. MacKay's opinion was based on a one-time examination, and he provided no support for his opinion. Further, Dr. MacKay's opinion was contradicted by Plaintiff's own testimony and that of his brother, who both testified that Plaintiff could lift more than twenty pounds. (Tr. 47, 70-71.) For the same reasons, the ALJ properly discounted the opinions of the state medical consultants and Dr. Ingebretsen as they related to the amount of weight that Plaintiff was able to lift.
There is no evidence in the record to suggest that Dr. MacKay was a treating physician.
Plaintiff also takes issue with the ALJ's finding regarding the amount of time that he was able to sit or stand. Plaintiff notes that Dr. Ingebretsen stated that he could stand for approximately half an hour and that his back would ache after sitting for several minutes. (Tr. 169.) Plaintiff likewise testified that he was able to sit or stand only half an hour at a time. However, in questioning the VE, the ALJ took into account the fact that Plaintiff might frequently have to change positions due to back pain. He asked the VE whether a hypothetical person who had to change from sitting to standing or walking every fifteen to twenty minutes could still do the custodial job. The VE responded that the number of jobs the individual could perform would be reduced by thirty to forty percent, but he would still be able to do the job. (Tr. 81.) Accordingly, this contention is without merit as well.
The court notes that the ALJ erred by failing to make findings on the record concerning the demands of Plaintiff's past relevant work. Winfrey, 92 F.3d at 1023, 1024, 1025, 1026. The Tenth Circuit has stated that the procedure followed by the ALJ in this case in which he delegated many of his fact finding responsibilities to the VE is to be discouraged. Id. at 1025. However, the court concludes that the ALJ adequately developed the record through his questioning of the VE concerning the demands of the custodian job so that substantial evidence supports his determination that Plaintiff could perform his past relevant work as generally performed in the national economy.
IV. RECOMMENDATION
The ALJ applied the correct legal standards and his decision is supported by substantial evidence. Accordingly, the Commissioner's decision should be affirmed.Copies of the foregoing Report and Recommendation are being mailed to the parties, who are hereby notified that they have the right to object to the Report and Recommendation. The parties are further notified that they must file any objections to the Report and Recommendation with the clerk of the district court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.