Opinion
Civil Action No. 3:03-CV-3030-D.
October 8, 2004
MEMORANDUM OPINION
Plaintiff Ludean Newsome ("Newsome") brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final decision of the Commissioner of Social Security ("Commissioner") terminating her disability insurance benefits. For the reasons that follow, the court affirms in part and vacates and remands in part the Commissioner's decision.
I
In October 1990 Newsome was found to be disabled due to lupus erythematosus ("lupus"), with an onset date of March 27, 1989. A continuing disability review conducted in December 1996 resulted in a finding of medical improvement and a cessation of disability. Newsome appealed this determination. An Administrative Law Judge ("ALJ") heard the matter and affirmed the cessation of disability, finding that Newsome had the residual functional capacity ("RFC") to perform a full range of light work. Newsome sought review by the Appeals Council, which remanded the case to the ALJ.
Following a second hearing, the ALJ again determined that Newsome experienced medical improvement related to her ability to work, has an RFC for light work with simple instructions, can perform her past relevant work, and therefore is not disabled. At the time of the second hearing, Newsome was 50 years old and had the equivalent of a high school education. She has past work experience as a cashier, electronics assembler, and school bus driver.
Newsome sought review of the ALJ's decision by the Appeals Council, which denied her request. The ALJ's decision became the final decision of the Commissioner. Newsome now seeks review in this court, contending that the ALJ's decision should be vacated because the findings regarding her exertional and nonexertional limitations are not supported by substantial evidence.
Newsome complains in her reply brief that the ALJ applied the wrong legal standard to her claim, employing the five-step sequential method under 20 C.F.R. § 404.1520(a)(4) (2004) for refused claims rather than the eight-step method under 20 C.F.R. § 404.1594(f) (2004) for termination of benefits. In her initial brief, Newsome observed parenthetically that the ALJ applied the standard for an initial claim instead of the one for a continuing claim. She did not assert, however, that this provides grounds on which the court should vacate the ALJ's determination. Because Newsome first raised the issue in her reply brief, the court will not consider it. See, e.g., Senior Unsecured Creditors' Comm. of First RepublicBank Corp. v. FDIC, 749 F. Supp. 758, 772 (N.D. Tex. 1990) (Fitzwater, J.) (holding that court will not consider new argument raised in a reply brief).
II
The court's review of the Commissioner's decision is limited to determining whether the decision is supported by substantial evidence and whether the proper legal standards were applied to evaluate the evidence. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995) (per curiam). "The Commissioner's decision is granted great deference and will not be disturbed unless the reviewing court cannot find substantial evidence in the record to support the Commissioner's decision or finds that the Commissioner made an error of law." Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995) (footnotes omitted)."The court may not reweigh the evidence or try the issues de novo or substitute its judgment for that of the [Commissioner]." Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984). "If the Commissioner's findings are supported by substantial evidence, then the findings are conclusive and the Commissioner's decision must be affirmed." Martinez, 64 F.3d at 173. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (internal quotation marks and citation omitted). "It is more than a mere scintilla, and less than a preponderance." Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). Even if the court should determine that the evidence preponderates in the claimant's favor, the court must still affirm the Commissioner's findings if there is substantial evidence to support these findings. See Carry v. Heckler, 750 F.2d 479, 482 (5th Cir. 1985). The resolution of conflicting evidence is for the Commissioner rather than for this court. See Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir. 1983) (per curiam).
For purposes of social security determinations, "disability" means an inability to engage in substantial gainful activity because of any medically determinable physical or mental impairment or combination of impairments that could be expected either to result in death or to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A). To establish disability, the record must show that the limitations imposed by Newsome's conditions prevent her from engaging in any substantial gainful activity. See Jones v. Heckler, 702 F.2d 616, 620 (5th Cir. 1983). When determining the propriety of a decision of "not disabled," this court's function is to ascertain whether the record considered as a whole contains substantial evidence that supports the final decision of the Commissioner, as the trier of fact. The court weighs four elements of proof to determine if there is substantial evidence of disability: "(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) [her] age, education, and work history." Martinez, 64 F.3d at 174 (citing Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991) (per curiam)). "The ALJ has a duty to develop the facts fully and fairly relating to an applicant's claim for disability benefits." Ripley, 67 F.3d at 557 (footnote omitted). "If the ALJ does not satisfy [her] duty, [her] decision is not substantially justified." Id. Where the court determines that the ALJ did not fulfill her duty to develop the record, reversal of the ALJ's decision is appropriate only if the claimant shows that she was prejudiced. Id. Prejudice is established when the claimant demonstrates that she would have adduced evidence that might have changed the result. Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000). The court will not overturn a procedurally imperfect administrative ruling unless the substantive rights of a party have been prejudiced. See Smith v. Chater, 962 F. Supp. 980, 984 (N.D. Tex. 1997) (Fitzwater, J.).
III
Newsome first challenges the ALJ's decision concerning her exertional limitations.
A
Newsome contends the ALJ's finding concerning her RFC is not supported by substantial evidence because the ALJ failed to base this finding either on credible medical opinion or on reasonable inferences drawn from other record evidence that establish the limiting effects of the impairments. She argues that the record consists entirely of reports and clinical notes that contain raw medical data that state agency medical consultants reviewed, but that it lacks opinions of treating or examining physicians concerning specific functional limitations that support the ALJ's RFC finding. Newsome posits that the progress and clinical notes and laboratory reports in the record do not refer to the effects of her impairments on her ability to work, and that her testimony concerning her daily activities did not provide a basis for the ALJ to infer that she has the RFC to perform light work. Therefore, she maintains that the ALJ was left with medical findings that merely diagnosed her impairments but did not relate them to specific functional limitations, and the ALJ is not qualified to interpret the raw medical data and translate the data into functional terms.
Newsome also contends that the ALJ's RFC finding was not based on reasonable inferences drawn from other record evidence because she failed to develop a full and fair record. She maintains that the ALJ was required by regulation to re-contact medical sources because she lacked sufficient evidence to decide whether Newsome is disabled. Newsome posits that, despite records from 1997 and 1998 that showed that she no longer had active systemic lupus but that she did suffer from diffuse arthralgia and myalgia with elevated sedimentation rates, and a 1999 MRI that showed disc degeneration, there is no medical opinion concerning her physical limitations, except a single reference that she was restricted in March 1999 from doing any lifting. She contends that, although the medical records show improvement since 1989, it is not sufficiently complete or detailed to reach an informed judgment about the nature and severity of her lupus and degenerative disc disease since 1996. Newsome also argues that the compilation of clinical and laboratory data contains nothing from which to infer her ability to do work-related physical and mental activities at steps 4 and 5 of the sequential evaluation process. She asserts that the ALJ's finding that she can perform light work appears to be based on nothing more than the fact that she experienced medical improvement, but that the ALJ's decision — which lacks a narrative discussion of what evidence supports the finding and how it supports it — provides no rational and logical connection between that finding and the evidence on which it is based. Instead, according to Newsome, the ALJ relied on presumptive limitations and her own speculation as someone untrained in medical matters.
Newsome also complains that the ALJ's decision lacks an explanation of her RFC that is supported by record evidence or that is sufficiently specific to make clear the weight given the evidence and the reasons therefor. She asserts that a remand is required where the decision is so poorly articulated as to prevent meaningful review.
B
It is the duty of the ALJ to fully and fairly develop the facts relative to a claim for benefits. When [she] fails in that duty, [she] does not have before [her] sufficient facts on which to make an informed decision. Consequently, [her] decision is not supported by substantial evidence.Pierre v. Sullivan, 884 F.2d 799, 802 (5th Cir. 1989) (per curiam). The ALJ typically should request a medical source statement describing the types of work the claimant can perform. Palmer v. Chater, No. 3:95-CV-0226-D, slip op. at 4 (N.D. Tex. Mar. 27, 1996) (Fitzwater, J.). The absence of such a statement, however, does not of itself render the record incomplete. Id. (citing Ripley, 67 F. 3d at 557). Where no such statement is provided, the court's inquiry focuses on whether the decision of the ALJ is supported by substantial evidence in the record. Ripley, 67 F.3d at 557. Reversal of the ALJ's decision is appropriate "only if the applicant shows that [she] was prejudiced." Id. Moreover, "where the medical evidence shows relatively little physical impairment, an ALJ permissibly can render a commonsense judgment about functional capacity even without a physician's assessment." Manso-Pizarro v. Sec'y of Health Human Servs., 76 F.3d 15, 17 (1st Cir. 1996) (per curiam).
C
The court first considers Newsome's arguments as they relate to lupus. The record evidence demonstrates that her lupus was in remission and that she had improved medically. The ALJ noted that medical examinations indicated that her lupus was inactive beginning in 1997. R. 21. The fact that it was indisputably in remission allowed the ALJ to make a commonsense judgment that this condition could not be the basis of a disability finding. See Manso-Pizarro, 76 F.3d at 17. The ALJ permissibly found that Newsome's medical improvement related to her RFC. Accordingly, the court holds that the ALJ's finding is supported by substantial evidence.
D
The court turns next to Newsome's fibromyalgia. Fibromyalgia has been recognized as a potentially disabling impairment. See Hirst v. Barnhart, 71 Fed. Appx. 441 (5th Cir. June 6, 2003) (per curiam) (unpublished opinion) (remanding decision where Commissioner acknowledged that fibromyalgia might impact claimant's ability to maintain employment); Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003) ("[A] growing number of courts . . . have recognized that fibromyalgia is a disabling impairment[.]" (citation omitted)). The ALJ found that Newsome's fibromyalgia was considered "mild" and had improved with medication. R.21. The record does not contain evidence, however, of what Newsome can do despite suffering from fibromyalgia. Characterizing the condition as "mild" did not enable the ALJ, as someone who lacks medical expertise, to determine Newsome's limitations in work-related activities such as sitting, standing, walking, and lifting. In Ripley the claimant had undergone two back surgeries. Ripley, 67 F.3d at 554-55. Although the ALJ considered the claimant's testimony and the medical records describing the back injury, the ALJ concluded that the claimant was capable of performing sedentary work. Id. at 557. The Fifth Circuit remanded the case, holding: "The record includes a vast amount of medical evidence establishing that [claimant] has a problem with his back. What the record does not clearly establish is the effect [his] condition had on his ability to work." Id. The court concluded that medical reports that indicated the extent of the injuries alone were not substantial evidence that supported the conclusion, because the court was unable, without reports from qualified medical experts, to determine the effects of the condition on his ability to perform work. Id. at 557 n. 27. Similarly, although the instant record contains substantial evidence that Newsome suffers from "mild" fibromyalgia that has improved with medication, the record lacks substantial evidence to support the ALJ's findings concerning the effect of this condition on her work-related abilities, i.e., that she can perform light work. Cf. id. at 557; Palmer, No. 3:95-CV-0226-D, slip op. at 5. Newsome has demonstrated prejudice by pointing to evidence that the ALJ could have obtained and that might have changed the result. See Ripley, 67 F.3d at 557 n. 22 (holding that claimant may establish prejudice by showing that additional evidence would have been produced had the ALJ met his obligation, and that additional evidence might have led to a different result).
The ALJ also noted that Newsome rated her pain as 2 on a scale of 1 to 10. R. 22. As presented in the ALJ's decision, this seems to support the conclusion that she is not disabled by pain; however, a closer inspection of the record reveals that Newsome's answer was based on her belief that on the scale, 1 represented the most severe pain and 10 the least intense. Newsome's subjective report is undermined, however, by the ALJ's determination that she lacked credibility. Id.
Accordingly, the court vacates the Commissioner's decision in part and remands this case with instructions that the ALJ obtain a medical source statement describing the types of work that Newsome is still capable of performing, despite her fibromyalgia.
E
The court now considers Newsome's arguments concerning her degenerative disc disease. [P. Br. at 8] The record indicates that Newsome did not argue before the ALJ that the disc impairment was a basis for finding her disabled. The ALJ noted that Newsome "alleges that she became disabled . . . due to lupus and continues to be disabled due to lupus, fibromyalgia and depression." R. 20. During the hearing, the ALJ advised Newsome that the issue to be determined was whether there had been medical improvement related to lupus and depression. Id. at 89. In his opening statement, Newsome's counsel did not contend that she sought a disability finding based on her disc impairment:
We believe the records indicate that she has a continuing depression problem that goes up through at least this year, as the records would indicate. And that although she did have remission in the lupus, the records throughout . . . indicate that she was still having pain that was unresponsive to the medications the doctors were trying to alleviate the pain with. So we would contend that her ability to work is still less than sedentary[.]Id. at 90. Nor did her counsel question her about the disc disorder during the hearing. See id. at 119-23. Moreover, Newsome did not contend in her request for a hearing that the degenerative disc impairment was a basis for finding her disabled. See id. at 162. Because Newsome did not allege that she was impaired by the degenerative disc disorder, she did not put the ALJ on notice of the need to fully and fairly develop the record in this respect. Cf. Kitts v. Apfel, 204 F.3d 785, 786 (8th Cir. 2000) (per curiam) (holding that ALJ was not on notice of need to develop record as to mental impairment where claimant did not allege mental impairment in application or hearing). She is not entitled to relief on this ground.
IV
Newsome also challenges the ALJ's finding regarding nonexertional limitations.
A
Newsome maintains that the record lacks any medical opinion or other evidence that details specific mental limitations. She argues that the ALJ concluded that her depression limits her to performing tasks involving simple instructions, but did so without any medical opinion or other evidence setting forth specific mental limitations. Newsome posits that the limitations identified on the Psychiatric Review Technique Form ("PRTF") do not equal an RFC assessment but constitute a rating of the severity of her mental impairment at steps 2 and 3, whereas the RFC assessment at steps 4 and 5 of the sequential process requires a more detailed assessment of various functions. She reasons that, because the areas of mental functioning identified in the PRTF do not match the basic work-related mental activities contained in the regulations, the ALJ was not permitted to draw conclusions about her mental limitations from the PRTF alone.
The PRTF completed in this case indicates no mental impairment. See R. 355-62. The ALJ found at step 2, however, that Newsome's depression is a severe impairment. See id. at 21.
Newsome's first argument presupposes that the ALJ's conclusion concerning nonexertional limitations is based solely on the PRTF. This is not the case. First, the ALJ specifically referred to the medical expert's ("ME's") interpretation of the severity of Newsome's mental impairment and its effect on her ability to perform work. See R. 21. Relying on the record evidence, the ME stated that as long as Newsome remains on medication, she should not have any limitations as a result of her depression. Id. at 126. Based on the ME's opinion that Newsome would not have any limitations from depression, the ALJ could permissibly reach the commonsense judgment that her depression does not in any way limit her ability to perform work.
Second, the ALJ considered the inability of Douglas Hogan, Ph.D. ("Dr. Hogan") to make any diagnosis of mental impairment. Id. at 21. Dr. Hogan opined that Newsome did not put forth an appropriate effort during the psychological examination he administered. Id. at 353. He also found that Newsome's psychomotor activity was "within normal limits" and that her "thinking was appropriate, goal-oriented, and logical." Id. at 350-51. Consequently, the ALJ's finding concerning Newsome's nonexertional RFC is based on substantial evidence.
B
Newsome also argues that the ALJ's finding that she is limited to simple instructions is not adequate to describe all mental limitations that may be associated with her depressive disorder. She cannot demonstrate prejudice, however, resulting from the ALJ's description of her nonexertional limitations as requiring simple instructions. As discussed supra at § IV(A), the record contains substantial evidence supporting a conclusion that Newsome has no mental limitations. The ALJ's conclusion that Newsome is limited to only jobs requiring simple instructions restricts the universe of jobs she can perform, benefiting her disability claim. Newsome cannot demonstrate that she was prejudiced by this decision.C
Newsome also contends the ALJ's conclusion that she can perform unskilled work is unsupported by findings of fact as to specific work abilities. The ALJ determined at step 4 that Newsome can perform her past relevant work, which is light and semi-skilled. Despite this conclusion, the ALJ continued, in the alternative, to step 5 and found, based on the vocational expert's opinion, that Newsome can perform all unskilled light work. The ALJ's analysis at step 5, as an alternative finding, is not necessary to her decision. Having determined that there is substantial evidence to support the ALJ's determination of no disability at step 4, the court need not reach Newsome's argument.