Opinion
Civil Action No. SA-04-CA-0075 RF (NN).
February 4, 2005
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
TO: Hon. Judge W. Royal Furgeson United States District Judge
I. Introduction
Plaintiff Joseph Medrano seeks review and reversal of the administrative denial of his application for Supplemental Security Income ("SSI") by the Administrative Law Judge ("ALJ") on October 8, 2003. Plaintiff contends that ALJ Galvan's conclusion that plaintiff retained the residual functional capacity ("RFC") to perform work available in the local and national economies is not supported by the substantial evidence of the record. For this reason, plaintiff requests that the court reverse, remand and order the entry of a finding of disability, or, in the alternative, remand the case for proper development.After considering plaintiff's request for relief, defendant's brief in support of the Commissioner's decision, plaintiff's reply brief, the transcript of the Social Security Administration (hereinafter "SSA") proceedings, the pleadings on file, the applicable case authority and relevant statutory and regulatory provisions, and the entire record in this matter, it is my recommendation that plaintiff's request for relief be GRANTED and the decision of the Commissioner REVERSED.
Docket Entries 1, 17.
Docket Entry 18.
Docket Entry 19.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
II. Jurisdiction
The court has jurisdiction under 42 U.S.C. § 1383.
III. Administrative Proceedings
According to the record in this case, plaintiff fully exhausted his administrative remedies prior to filing this action in federal court. Plaintiff filed an application for Supplemental Security Income ("SSI") on August 1, 2001. The SSA denied plaintiff's application both initially, on November 26, 2001, and on reconsideration, March 15, 2002.
Transcript, at 13, 47-49.
Transcript, at 26-31.
Transcript, at 33-35.
On April 4, 2002, plaintiff requested a hearing before an ALJ. The hearing was held on June 17, 2003. Plaintiff was represented by counsel at the hearing. Plaintiff's attorney was able to examine and question plaintiff and vocational expert Lloyd Fatzinger during the hearing.
Transcript, at 36.
Transcript, at 174-194.
The plaintiff, who was twenty one (21) years old at the June 2003 hearing, testified that he lived in a house with his parents and had never been married. Plaintiff told the ALJ that he had a twelfth grade education and past work experience as a packaging clerk and stocker at a Handy Andy grocery store. Plaintiff also stated that he assisted his father in carpentry side jobs. At the time of the hearing, plaintiff had no income.
Transcript, at 180, 181.
Transcript, at 181.
Transcript, at 185.
Transcript, at 184.
Transcript, at 185.
Plaintiff suffered injuries to his back during an automobile accident in which he was rear ended. As a result of the accident, plaintiff had a herniated disc at L4-L5 and nerve damage in the form of numbness in his left arm and leg. Plaintiff testified that his treating physician, Dr. Lenderman, wanted to perform surgery on plaintiff's back but would not because plaintiff was uninsured.
Transcript, at 185.
Transcript, at 186.
Transcript, at 186.
When asked about his ability to perform household chores, plaintiff testified that he tried to do chores like cleaning his room and vacuuming but had to take a break to rest from the pain. Because he can neither sit nor stand for protracted periods of time, he stated that he was unable to drive or walk long distances, attend Church or cook. Plaintiff told the ALJ that he could only sit, walk or stand for ten or fifteen minutes before having to lie down for approximately twenty minutes. Plaintiff also testified that he had trouble bathing and sleeping.
Transcript, at 182.
Transcript, at 181, 182.
Transcript, at 187, 188.
Transcript, at 183.
When asked about his daily and routines activities, plaintiff told ALJ Galvan that he watched television or read the newspaper, taking frequent breaks to change position. Plaintiff testified that his pain was a sharp, shooting and throbbing pain. Plaintiff stated that his pain was constant and he suffered from it everyday. Plaintiff testified that he took Celebrex for his pain and Ultraset to help him sleep.
Transcript at 182, 183.
Transcript, at 187.
Transcript, at 188.
Transcript, at 185, 188-189.
Plaintiff also told the ALJ that he weighed 340 pounds. He testified that he had a weight problem his entire life. Plaintiff stated that he had been advised that his weight contributed to his pain level.
Transcript, at 181.
Transcript, at 183.
Transcript, at 189.
ALJ Galvan also heard testimony from vocational expert Lloyd Fatzinger. VE Fatzinger classified plaintiff's past work as a grocery bagger as medium, unskilled; as a stocker as medium, semi-skilled; and as a carpenter helper as medium to heavy, unskilled.
Transcript, at 191-193.
Transcript, at 192.
The ALJ posed two hypotheticals to the vocational expert during the hearing. In the first, ALJ Galvan asked VE Fatzinger to imagine a hypothetical individual
21 years of age that injured his back in an auto accident. Apparently, he has a bulging disk ( sic) at L4, L5, which causes sometimes loss of feeling in his left side. His past work was as a bagger lifting a maximum of 25 pounds. He weighs approximately 340 pounds. Has problems sitting, standing, and walking. Cannot do any of these things for more than 30 minutes maximum. Would a person with these physical problems be able to do any kind of light or sedentary work?
Transcript, at 192.
In response to the above hypothetical and question, VE Fatzinger replied, "I do not believe so, sir."
Id.
In the second hypothetical, ALJ Galvan asked the vocational expert to "remove the problem with his back" and name "jobs he can do in a light, sedentary, or medium nature?" In response to this hypothetical and question, the vocational expert identified the following jobs: light work as a spotter, an ironer or a hand washer in a laundry; and light or sedentary work as an assembler of electrical equipment, household appliances, plastic products, telephones or wooden containers. When asked by the ALJ if there were any jobs with a sit/stand option, the vocational expert identified the following jobs: "ticket office, cashier, a parking lot cashier . . . a self-service gas station cashier . . . tv surveillance monitor . . . a few assembly jobs . . ." Upon questioning by plaintiff's counsel, VE Fatzinger confirmed that all the jobs identified "are from the hypo of zero back problems."
Transcript, at 192.
Transcript, at 192-193.
Transcript, at 193.
Transcript, at 193.
On October 8, 2003, the ALJ issued his decision in which he concluded that plaintiff was not under a "disability," as defined by the Social Security Act ("the Act"). Specifically, ALJ Galvan found that plaintiff retained the RFC to perform work available in the local and national economies.
Transcript, at 10-19.
Id.
After receiving the ALJ's unfavorable decision dated October 8, 2003, plaintiff requested review of the hearing and decision on December 8, 2003. On January 2, 2004, the Appeals Council concluded that there was no basis upon which it could grant plaintiff's request for review, thereby denying plaintiff's request. Plaintiff commenced the instant action in this court on January 26, 2004.
Transcript, at 6.
Transcript, at 4-5.
Docket Entry 1.
IV. Issue Presented
Whether the ALJ's decision is supported by substantial evidence and comports with relevant legal standards?V. Analysis
A. Standard of Review
In reviewing the Commissioner's decision denying disability insurance benefits, I am limited to a determination of whether substantial evidence supports the decision and whether the Commissioner applied the proper legal standards in evaluating the evidence. "Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Substantial evidence "must do more than create a suspicion of the existence of the fact to be established, but `no substantial evidence' will be found only where there is a `conspicuous absence of credible choices' or `no contrary medical evidence.'"
Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); 42 U.S.C. §§ 405(g), 1383(c)(3) (2002).
Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990) ( quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).
Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988) (quoting Hames, 707 F.2d at 164).
If the Commissioner's findings are supported by substantial evidence, then they are conclusive and must be affirmed. In my review of the Commissioner's findings, I must carefully examine the entire record, but refrain from re-weighing the evidence or substituting my judgment for that of the Commissioner. Conflicts in the evidence and credibility assessments are for the Commissioner and not for the courts to resolve. Four elements of proof are weighed by the courts in determining if substantial evidence supports the Commissioner's determination: (1) objective medical facts, (2) diagnoses and opinions of treating and examining physicians, (3) the claimant's subjective evidence of pain and disability, and (4) the claimant's age, education and work experience.
Martinez, 64 F.3d at 173.
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Villa, 895 F.2d at 1021 ("The court is not to reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner.").
Martinez, 64 F.3d at 174.
Id.
1. Entitlement to Benefits
Every individual who is insured for disability insurance benefits, has not reached retirement age, has filed an application for benefits, and is under a disability is entitled to receive disability insurance benefits. The term "disabled" or "disability" means the inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." A claimant shall be determined to be disabled only if his physical or mental impairment or impairments are so severe that he is unable to not only do his previous work, but cannot, considering his age, education, and work experience, participate in any other kind of substantial gainful work which exists in significant numbers in the national economy, regardless of whether such work exists in the area in which he lives, whether a specific job vacancy exists, or whether he would be hired if he applied for work.
Id. § 1382c(a)(3)(A).
Id. § 1382c(a)(3)(B).
2. Evaluation Process and Burden of Proof
Regulations set forth by the Commissioner prescribe that disability claims are to be evaluated according to a five-step process. A finding that a claimant is disabled or not disabled at any point in the process is conclusive and terminates the Commissioner's analysis.
20 C.F.R. §§ 404.1520 and 416.920 (2002).
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The first step involves determining whether the claimant is currently engaged in substantial gainful activity. If so, the claimant will be found not disabled regardless of his medical condition or his age, education, or work experience. The second step involves determining whether the claimant's impairment is severe. If it is not severe, the claimant is deemed not disabled. In the third step, the Commissioner compares the severe impairment with those on a list of specific impairments. If it meets or equals a listed impairment, the claimant is deemed disabled without considering his age, education, or work experience. If the impairment is not on the list, the Commissioner, in the fourth step, reviews the claimant's RFC and the demands of his past work, If he is still able to do his past work, he is not disabled. If he cannot perform his past work, the Commissioner moves to the fifth and final step of evaluating the claimant's ability, given his residual capacities, age, education, and work experience, to do other work. If he cannot do other work, he will be found disabled. The claimant bears the burden of proof at the first four steps of the sequential analysis. Once he has shown that he is unable to perform his previous work, the burden shifts to the Commissioner to show that there is other substantial gainful employment available that the claimant is not only physically able to perform, but also, taking into account his exertional and non-exertional limitations, able to maintain for a significant period of time. If the Commissioner adequately points to potential alternative employment, the burden shifts back to the claimant to prove that he is unable to perform the alternative work.
20 C.F.R. §§ 404.1520 and 416.920.
Id.
Id.
Id.
20 C.F.R. §§ 404.1520 and 416.920.
Id.
Id.
Id.
Id.
Leggett, 67 F.3d at 564.
Watson v. Barnhart, 288 F.3d 212, 217 (5th Cir. 2002).
Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989).
In the instant case, the ALJ reached his decision at step five of the evaluation process. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful employment since the date of his application for SSI. ALJ Galvan then concluded at steps two and three that plaintiff had an impairment or combination of impairments (lumbar disc protrusion at L4-L5) which were severe, but did not meet or medically equal a listed impairment as of the date the plaintiff was last insured. At step four, the ALJ found that, although he was unable to return to his past relevant work, plaintiff retained the residual functional capacity
See Transcript, at 10-19.
Transcript, at 14; ¶ 1, at 18.
Transcript, at 14; ¶ 2, at 18.
Transcript, at 14; ¶ 3, at 18.
to lift and carry 20 pounds on occasion and 10 pounds on a frequent basis, sit two hours in an 8-hour workday with a sit/stand option and stand/walk one hour in an 8-hour workday with a sit/stand option.
Transcript, at 16.
At step five, the ALJ held that given plaintiff's age (defined as a younger individual), education (a high school education), and vocational experience (no transferable skills from previous work/transferability of skills immaterial), plaintiff could perform work as a ticket taker in a parking lot, a security surveillance monitor and an assembler. Based on the foregoing, ALJ Galvan concluded that plaintiff was not under a disability. B. Is the ALJ's October 8, 2003 Decision Supported by Substantial Evidence?
Transcript, at 17; ¶ 8, at 18.
Transcript, at 17; ¶ 9, at 18.
Transcript, at 17; ¶ 10, at 18.
Transcript, at 17; ¶ 11, at 18.
Transcript, at 13, 17; ¶¶ 12-13, at 18.
Plaintiff challenges the ALJ's decision, asserting that the ALJ "erred in determining that the claimant could perform the full range of light work and erred in failing to consider the claimant's non-exertional impairments of pain and obesity." Plaintiff argues that these mistakes constitute reversible error and that substantial evidence does not support the ALJ's decision.
Docket Entry 17.
In his single, albeit compound, point of error, plaintiff avers that the ALJ committed prejudicial error when he determined that the plaintiff could perform the full range of light work and failed to consider the claimant's non-exertional impairments of pain and obesity. Plaintiff asserts that he is "patently incapable of performing light work" as that term has been defined in the applicable authority. Plaintiff further argues that the RFC assigned by ALJ Galvan is less than sedentary. Finally plaintiff contends that the ALJ's failure to consider plaintiff's non-exertional impairments of pain and obesity establishes that the decision is not supported by the substantial evidence of the record.
Docket Entries 17, 19.
Docket Entry 17, at 7.
Id.
Docket Entry 17, at 8. Plaintiff argued:
Clearly, the ALJ did not consider Mr. Medrano's pain complaints and his treating doctor's opinion that pain and fatigue are present and will interfere with attention and concentration, as stated above. He failed to explain why he rejected them; in fact, he summarily dismissed virtually all of his complaints as not credible. Docket Entry 17, at 8.
Defendant argues that the ALJ's decision is supported by the substantial evidence of the record, including a report from plaintiff's treating physician, Dr. Lenderman, who concluded that plaintiff retained the ability to perform light work. Defendant further contends that the evidence of the record which supports the ALJ's decision also undermines plaintiff's credibility as to his allegations of disabling pain. In addition, defendant opposes plaintiff's request for relief on the basis that plaintiff failed to demonstrate any "limitations due to his obesity, nor is there medical evidence noting that he experiences any limitations."
See Docket Entry 18, at 7.
Docket Entry 18, at 8.
The problem in the instant case is that there simply is not enough evidence in the record for any decision — either favorable or unfavorable to plaintiff — to be supported by substantial evidence. For example, the June 2003 report from Dr. Lenderman, plaintiff's treating physician, indicates that plaintiff is capable of performing some work activity albeit with significant limitations such as: sitting only two hours in an eight hour workday; standing or walking only one hour in an eight hour workday; moving around every fifteen minutes; the need to take unscheduled breaks one to two times per day; the need to take an unscheduled absence from work more than three times per month. The limitations identified by treating physician Lenderman might actually preclude plaintiff's ability to perform work activities or maintain sustained employment. Similarly, Dr. Lenderman's conclusion that plaintiff's pain would frequently interfere with his ability to concentrate supports plaintiff's allegations of disabling pain. Moreover, it is unclear the extent to which plaintiff's obesity factored into Dr. Lenderman's conclusions regarding plaintiff's limitations.
Transcript, at 168-175.
Transcript, at 173.
Dr. Lenderman concluded, however, that plaintiff's prognosis was good to fair. Similarly, the reports from the State Agency Medical Consultants conclude that plaintiff's allegations of pain and disability are less than credible. Most troubling, however, is the fact that the ALJ found that plaintiff was capable of performing jobs identified by the VE as jobs which could only be performed without any back problems at the same time the ALJ concluded that plaintiff's back impairments were severe.
Transcript, at 168.
See Transcript, at 14, 17, 18, 193.
The scope of judicial review of administrative decisions is very narrow. However, it is not a rubber stamp. While a plaintiff may properly be found able to perform work activities despite a certain level of pain, the SSA may not require a plaintiff to be an invalid in order to be eligible for benefits. Above all, the ALJ has the duty to develop a full and fair record, resolving any inconsistencies therein.
See Alejandro v. Barnhart, 291 F.Supp.2d 497, 500 (S.D. Tex. 2003).
See Eaves v. Secretary of Health and Human Services, 877 F.Supp. 334, 343, (E.D. Tex. 1995) (internal citations omitted):
While pain can be a disabling condition . . . all pain is not disabling . . . The fact that a plaintiff cannot work without some pain or discomfort will not render him or her disabled . . . A plaintiff's allegations of pain must be evaluated against the other evidence in the record . . .
Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999), citing Echevarria v. Secretary of Health and Human Services, 685 F.2d 751, 755 (2d Cir. 1982): "Because a hearing on disability benefits is a nonadversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record."
In this case, the ALJ had a duty to obtain more information to clarify the record. To acquit his duty to develop a full and fair record, the ALJ should have: had a medical expert present at the hearing, re-contacted plaintiff's treating physician for clarification of the inconsistencies in his report, and/or referred plaintiff for a consultative examination of his back impairments. The ALJ's failure to do so constitutes reversible error, as the ALJ could and would have adduced evidence that might have changed the outcome.
See Policy Interpretation Ruling Titles II and XVI: Medical Source Opinions on Issues Reserved to the Commissioner, SSR 96-5p, at *6 (July 2, 1986):
Because treating source evidence (including opinion evidence) is important, if the evidence does not support a treating source's opinion on any issue reserved to the Commissioner and the adjudicator cannot ascertain the basis of the opinion from the case record, the adjudicator must make `every reasonable effort' to recontact the source for clarification of the reasons for the opinion.
See Turner v. Califano, 563 F.2d 669, 671 (5th Cir. 1977):
To be very clear, `full inquiry' does not require a consultative examination at government expense unless the record establishes that such an examination is necessary to enable to administrative law judge to make the disability decision.
See Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000):
"This Court will not reverse the decision of an ALJ for failure to fully and fairly develop the record unless the claimant shows that he or she was prejudiced by the ALJ's failure . . . To establish prejudice, a claimant must demonstrate that he or she `could and would have adduced evidence that might have altered the result (internal citations omitted).'"
For all the foregoing reasons, it is my recommendation that plaintiff's request for relief be GRANTED and the Commissioner's decision REVERSED. This action should be REMANDED with instructions that the ALJ re-contact plaintiff's treating physician, Dr. Lenderman, for clarification of the inconsistencies in his report of June 2, 2003. In addition, the ALJ should be directed to either hold a supplemental hearing with a medical expert present or send plaintiff for an independent medical examination. The consultative physician or medical expert should be asked to assess the limitations presented by plaintiff's back impairments, whether plaintiff's obesity constitutes an impairment and any exertional limitations presented by the same, and plaintiff's ability not only to obtain but to maintain sustained employment. The ALJ's failure to address specifically plaintiff's ability to maintain sustained employment was not reversible error in this case, however, it should be assessed on remand in the hopes of adjudicating all possible issues during the next round of administrative proceedings.
Transcript, at 168-175.
VI. Recommendation
Based on the foregoing, I recommend that plaintiff's request for relief be GRANTED, the Commissioner's decision REVERSED and this action REMANDED for further proceedings consistent with this Memorandum and Recommendation.
VII. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn, 474 U.S. 140, 149-152 (1985).
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).