Opinion
Civil Action No, SA-04-CA-0270 OG (NN).
February 1, 2005
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
TO: Hon. Judge Orlando Garcia United States District Judge
I. Introduction
Plaintiff Angela Seley seeks review and reversal of the administrative denial of her application for Disability Insurance Benefits ("DIB") by the Administrative Law Judge ("ALJ") on July 23, 2003. Plaintiff contends that ALJ Jonathan Blucher's conclusion that plaintiff retained the residual functional capacity ("RFC") to perform her past work 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 brief in support of her complaint, 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. ALJ Blucher failed to comply with the relevant legal standards in his decision and, therefore, the case must be remanded.
Docket Entry 6.
Docket Entry 9.
Docket Entry 10.
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. § 405(g).
III. Administrative Proceedings
According to the record in this case, plaintiff fully exhausted her administrative remedies prior to filing this action in federal court. Plaintiff filed an application for Disability Insurance Benefits ("DIB") on January 25, 2001, alleging a disability beginning January 27, 1973. The SSA denied plaintiff's application both initially, on November 16, 2001, and on reconsideration, February 12, 2002.
Transcript, at 14, 95-97.
Transcript, at 74-78.
Transcript, at 81-83.
After plaintiff requested a hearing before an ALJ, an administrative hearing was held on March 5, 2003. Plaintiff was represented by counsel at the hearing. Plaintiff's attorney was able to examine and question plaintiff and the vocational expert, Howard Marnan, during the hearing.
Transcript, at 23-68.
Id.
The plaintiff, who was fifty six (56) years old at the March 2003 hearing, testified that she was a college graduate with post-college real estate education. When asked about her living arrangements, plaintiff told ALJ Blucher that she lived in a house with her then-thirty two (32) year old son. Plaintiff testified that she had a driver's license and drove on a regular basis, including to the grocery store and to take her son to his job.
Transcript, at 33-34. Plaintiff explained that she had obtained a real estate license which had expired. Transcript, at 34.
Transcript, at 34.
Transcript, at 35.
When asked about her exertional impairments, plaintiff told the ALJ that she had a stroke in the early 1970s. As a result of the stroke, plaintiff lost the use of her left hand, arm and leg. Consequently, plaintiff testified that she had bad balance and walked with a limp. However, plaintiff did not require use of an assistive device for walking. Plaintiff also stated that she had difficulty climbing stairs and ladders, as well as opening jars and carrying heavy objects. Plaintiff further testified that she had arthritis pain in her right arm which caused her trouble in gripping small objects.
Transcript, at 42.
Transcript, at 42.
Transcript, at 43.
Transcript, at 43.
Transcript, at 44.
Transcript, at 45.
Transcript, at 46.
Transcript, at 59.
When asked about her employment experience, plaintiff testified that she had worked as a real estate agent and as an operator on a crisis hotline. Plaintiff told the ALJ that she had worked part time hours as a real estate agent. Plaintiff also stated that she required assistance in performing many aspects of her job as a real estate agent, including measuring rooms in homes and inspecting properties because of the effects of her stroke.
Transcript, at 35-37.
Transcript, at 35.
Transcript, at 50-54.
When asked about her ability to perform routine and household activities, plaintiff testified that she was able to shop at the mall and the grocery store. Plaintiff also stated that she was able to load dishes in the dishwasher and do the laundry with the assistance of washing and drying machines. Plaintiff told the ALJ that her son cooked for both of them. Plaintiff further testified that her daily activities consisted of watching television, listening to the radio, reading magazines or the newspaper, and/or going to Church. Plaintiff stated that she had difficulty with math and her short term memory.
Transcript, at 43.
Transcript, at 40.
Transcript, at 40.
Transcript, at 41-42.
Transcript, at 54.
After plaintiff testified, vocational expert Howard Marnan testified. VE Marnan classified plaintiff's past work as a real estate agent as light, skilled and her work as a crisis hotline caseworker as sedentary, semi-skilled.
Transcript, at 61.
Transcript, at 63, 65-66.
On July 23, 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"), at any time through the date of the decision. Specifically, ALJ Blucher found that plaintiff retained the RFC to perform her past work as a telephone intake caseworker.
Transcript, at 11-20.
After receiving the ALJ's unfavorable decision dated July 23, 2003, plaintiff requested review of the hearing and decision on July 29, 2003. On January 30, 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 March 30, 2004.
Transcript, at 8.
Transcript, at 5-7.
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 four of the evaluation process. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful employment since the date of her application for DIB. ALJ Blucher then concluded at steps two and three that plaintiff had an impairment or combination of impairments (status post cerebral vascular accident with residuals including loss of upper extremity with a mild limp of her left leg) 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 plaintiff retained the RFC
Transcript, at 15; ¶ 2, at 19.
Transcript, at 17; ¶ 3, at 19.
Transcript, at 17; ¶ 4, at 19.
to lift no more than 10 pounds at a time; sit approximately 6 hours of an 8 hour workday; stand and/or walk no more than 2 hours of an 8 hour workday; with no requirements for the use of her left arm; no climbing, stopping, balancing, kneeling, or crouching; and no requirements to walk or stand on uneven or slippery ground.
Transcript, at 18; ¶ 7, at 20.
ALJ Blucher further found that plaintiff was able to perform her past relevant work as a telephone intake caseworker/telephone consultant. Based on the foregoing, ALJ Blucher concluded that plaintiff was not under a disability. B. Is the ALJ's July 23, 2003 Decision Supported by Substantial Evidence?
Transcript, at 19; ¶¶ 8-9, at 20.
Transcript, at 14, 19; ¶ 10, at 20.
Plaintiff challenges the ALJ's decision, asserting that the ALJ: (1) improperly failed to re-contact plaintiff's treating physician to obtain clarification about the medical evidence of record; and (2) erroneously concluded that plaintiff's severe exertional impairments did not meet or medically equal Listing 11.04B.
1. Did the ALJ improperly fail to re-contact plaintiff's treating physician to obtain clarification about the medical evidence of record?
In her first point of error, plaintiff argues that the ALJ improperly failed to re-contact plaintiff's treating physicians to obtain clarification on inconsistencies in the medical evidence of record. Plaintiff further asserts that the failure to re-contact was in direct violation of the applicable legal standards and, therefore, requires that the case be remanded for further development.
When the ALJ assesses the oral and written evidence provided by the various medical professionals, he must ordinarily give "substantial weight . . . to the opinion, diagnosis and medical evidence of the claimant's treating physician." However, the ALJ can "`reject the opinion of any physician if the evidence supports a contrary conclusion'" provided the ALJ has good cause for so doing.
[W]hen good cause is shown, less weight, little weight, or even no weight may be given to the physician's testimony. The good cause exceptions we have recognized include disregarding statements that are brief and conclusory, not supported by medically acceptable clinical laboratory diagnostic techniques, or otherwise unsupported by the evidence.
Dorsey v. Heckler, 702 F.2d 597, 603 (5th Cir. 1983).
Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987), citing Oldham v. Schweiker, 660 F.2d 1078, 1084 (Former 5th Cir. Unit B 1981).
Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994).
Greenspan, 38 F.3d, at 237, citing Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985).
Despite the weight given to the treating source's opinion, the ALJ must evaluate every medical opinion received. When the ALJ does not give the treating source's opinion controlling weight, he must consider various factors in deciding the weight given to each opinion. Those factors are: (1) the examining relationship (the ALJ should generally give more weight to a source who examined the claimant); (2) the treatment relationship (the ALJ should generally give more weight to a source who treated claimant), including the length, nature and extent of the treatment relationship, as well as the frequency of the examination(s); (3) the supportability of the opinion (the ALJ should give greater weight to the source who provides more relevant evidence to support the opinion); (4) consistency (the ALJ should give greater weight to opinions which are consistent with the record as a whole); (5) specialization (the ALJ should generally give greater weight to the opinion of a specialist); and (6) any other factors which "tend to support or contradict the opinion."
Id.
20 C.F.R. § 404.1527(d) (2(i)-(ii)).
20 C.F.R. § 404.1527(d)(5). See also Moore, 919 F.2d, at 905.
When a medical opinion is incomplete or inconsistent, the ALJ is obligated to resolve the inconsistencies or inadequacies. One of the primary social security rulings on medical source opinions directs the ALJ to re-contact a medical source, when possible, to resolve any inconsistencies in the evidence provided by that source. Specifically, the ruling states
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.
Policy Interpretation Ruling Titles II and XVI: Medical Source Opinions on Issues Reserved to the Commissioner, SSR 96-5p (July 2, 1986).
Id., at *6.
Thus, even though the ALJ and SSA retain the "final responsibility for deciding certain issues, such as whether an individual is disabled under the Act," and, similarly, the responsibility for resolving all conflicts in the evidence, the ALJ is still required, at a minimum, to attempt to obtain clarification when the record contains inconsistencies.
Id., at *1.
In the instant case, the record contains medical reports authored by two of plaintiff's treating physicians — Dr. Drogin and Dr. Ochoa. Plaintiff avers that these documents vaguely discuss plaintiff's limitations and suggest that plaintiff has a very limited — if not non-existent — ability to perform work related activities. Due to the unclear opinions set forth in the aforementioned medical reports and their significance as treating source opinion, plaintiff contends that the ALJ had a duty to re-contact Drs. Drogin and Ochoa — plaintiff's treating physicians — for clarification.
See Docket Entry 6, at 11, citing Transcript, at 231, 215.
Plaintiff is correct that the ALJ failed to adequately acquit his duty to fully develop the record and to discuss the medical evidence of record. There were two treating source reports in the record which indicated that plaintiff was unable to perform work related activities. The first, a letter authored by Dr. Drogin four years before plaintiff applied for benefits, stated that plaintiff had a "permanent disability secondary to a stroke." The second, a letter authored by Dr. Ochoa almost seven years before plaintiff applied for benefits, stated that plaintiff
Transcript, at 215. This letter was written on August 26, 1998, and plaintiff applied for DIB on January 25, 2001.
has been able to maintain employment in a limited capacity since her recovery but should be considered to be greater than fifty percent disabled.
Transcript, at 231. Dr. Ochoa's letter was written on February 18, 1994.
Both these letters were written as plaintiff was obtaining treatment. Further, they were written as "To Whom It May Concern" letters.
The instant case is a difficult one. On the one hand, there is medical and non-medical evidence in the record that plaintiff was able to perform work and daily activities for many years despite her allegedly disabling impairments. Similarly, there is no definitive evidence of record that plaintiff's impairments worsened between the time she was able to work in spite of her impairments and the time that she filed for benefits. Moreover, the records ignored by the ALJ were written as "To Whom It May Concern" letters, and not as actual medical reports tracking plaintiff's progress or lack thereof. And, of course, it must be remembered that plaintiff bears the ultimate burden of establishing prejudicial error and a disabling impairment.
See Williams v. Chater, 923 F.Supp. 1373, 1379 (D. Kan. 1996), "Evidence of employment during a period of alleged disability is highly probative of a claimant's ability to work."
See, generally Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985), citing Whitney v. Schweiker, 695 F.2d 784, 789 (7th Cir. 1982); Oshkeshequoam v. Barnhart, 274 F.Supp.2d 985, 999 (C.D. Ill. 2003).
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).'"
On the other hand, however, the ALJ must acquit his duty to fully and fairly develop the record. It is well settled precedent that an ALJ's failure to comply with applicable legal standards requires remanding the case for further development. In this case, the ALJ's assessment of the treating source opinions was not only deficient — it was virtually non-existent. Whatever arguments may be asserted that the treating source reports at issue do not bolster plaintiff's claim of a disabling impairment, the ALJ cited none of them. Although the ALJ acknowledged the objective findings contained in certain treating source reports, he ignored the reports of Drs. Drogin and Ochoa. The ALJ failed to analyze these treating source reports, and failed to re-contact the treating physicians for clarification of their opinions that plaintiff was limited in, if not precluded from, performing work activities. In so doing, the ALJ substituted his own lay opinion for that of a doctor. Such a practice is strictly prohibited. All these errors and omissions constitute legal error. Moreover, had the ALJ properly conducted the requisite analysis of the medical evidence of record, he could have adduced evidence that might have altered the result. Thus, the ALJ's error was not only a violation of applicable legal standards, it was also prejudicial, i.e. reversible.
"The ALJ owes a duty to a claimant to develop the record fully and fairly to ensure that his decision is an informed decision based on sufficient facts." Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996), citing Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984).
See Loza v. Apfel, 219 F.3d 378, 389 (5th Cir. 2000).
See Transcript, at 16-17.
Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003), quoting Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990). "`But judges, including administrative law judges of the Social Security Administration, must be careful not to succumb to the temptation to play doctor . . . Common sense can mislead; lay intuitions about medical phenomena are often wrong.'"
See Carey v. Apfel, 230 F.3d 131, at 142.
For the foregoing reasons, it is my recommendation that the decision of the Commissioner be REVERSED and this case be REMANDED. On remand, the ALJ should be directed to fully and properly assess all the medical evidence of record — particularly the opinions of plaintiff's treating physicians. The ALJ should adequately articulate all the reasons for the weight he accords to each medical opinion. Should the ALJ conclude that there are inconsistencies in the medical evidence of record, he should be directed to re-contact those physicians for clarification. In addition, although not a basis upon which remand was requested, the ALJ should assess whether plaintiff has the ability both to maintain as well as obtain employment in an attempt to avoid a future remand.
2. Did the ALJ erroneously conclude that plaintiff's exertional impairments did not meet or medically equal Listing 11.04B?
In her second, and final, point of error, plaintiff contends that ALJ Blucher committed reversible error when he concluded that plaintiff's exertional impairments did not meet or medically equal Listing 11.04B.
Listing 11.04 establishes that a central nervous system vascular accident qualifies as a listed impairment when the following occurs more than three months post-vascular accident:
A. Sensory or motor aphasia resulting in ineffective speech or communication; or
B. Significant and persistent disorganization of motor function in two extremities, resulting in sustained disturbance of gross and dexterous movements, or gait and station (see 11.00C).
20 C.F.R. § 404, Subpart P, Appendix 1, § 11.04B.
11.00C of the Regulations provides:
Persistent disorganization of motor function in the form of paresis or paralysis, tremor or other involuntary movements, ataxia and sensory disturbances (any or all of which may be due to cerebral cerbellar, brain stem, spinal cord, or peripheral nerve dysfunction) which occur singly or in various combination, frequently provides the sole or partial basis for decision in cases of neurological impairment. The assessment of impairment depends on the degree of interference with locomotion and/or interference with the use of fingers, hands, and arms.
Plaintiff argues that the ALJ misapplied the legal standard set forth in the Listing by requiring that plaintiff have significant and persistent disorganization of motor function in two extremities resulting in both sustained disturbance of gross and dexterous movements and gait and station. Plaintiff contends:
By its facial language, a finding of disability because of an impairment or combination of impairments which meet or medically equals the listing is disjunctive — a claimant must either have a persistent disorganization of motor function in two extremities which result in sustained disturbance of gross and dexterous movements or which result in a sustained disturbance of gait and station. . . .
However, the ALJ imposed his own criteria for a finding of disability under section 11.04B and deviated from the plain language of the section by failing to apply the two standards for a finding of disability disjunctively and erroneously applied them conjunctively to arrive at his conclusion that Plaintiff failed to meet the requirements set forth in section 11.04B. . . .
The ALJ's implicit incorporation of the gait and station provision of section 11.04B into the provision requiring a disturbance of gross and dexterous movement in two extremities is akin to application of an improper legal standard and should be reversed. Plaintiff contends that the evidence is sufficient to establish as a matter of law that Plaintiff's left leg meets the requirements of section 11.04B and therefore prays for a reversal for a finding of disability. Alternatively, Plaintiff prays for a reversal and remand for a determination on the nature of the impairment of Plaintiff's left leg.
Docket Entry 6, at 12.
Docket Entry 6, at 15.
Docket Entry 6, at 16.
In the decision, the ALJ made the following assessment regarding the listing-level severity of plaintiff's impairments:
the Administrative Law Judge finds that the medical evidence indicates the claimant is status post cerebral vascular accident with residuals including loss of use of her left upper extremity with a mild limp of her left leg, impairments that are severe within the meaning of the Regulations but not severe enough to meet or medically equal one of the impairments listed in Appendix 1, Subpart P, Regulations No. 4. The undersigned takes note that consideration was given to section 11.04B as it pertains to central nervous system vascular accident (which the claimant suffered on January 27, 1973). The evidence shows the claimant sustained a disturbance of dexterous movements in her left arm and hand. While she has permanent weakness in her left leg and ambulates with a slight limp, she was observed by the consulting physician in October, 2001 to have a normal gait and station with no signs of ataxia or unsteadiness. Straight-leg raising test was negative and she was able to bend all the way over and get back up without difficulty. As well, he noted the claimant got on and off of the examination table without any difficulty and was not using any assistive devices. Thus the claimant fails to meet the specific criteria needed to meet or equal this listing (Exhibit 1F/43-46).
Transcript, at 17.
It is unclear from the decision whether the ALJ improperly assessed the requirements of the Listing. The ALJ notes that plaintiff had a disturbance of dexterous movements in her left arm and hand. But, then, the ALJ states that plaintiff has normal gait and station. By these remarks, it is not clear if the ALJ meant that plaintiff had neither a disturbance of dexterous movements nor abnormal gait and station in her left leg — a correct interpretation of the Listing and one that would properly lead to the finding that plaintiff did not meet the Listing. Similarly, it is not clear if the ALJ meant that plaintiff failed to have both a disturbance of dexterous movements and abnormal gait and station — an incorrect interpretation of the Listing which would subject plaintiff to a heavy, and erroneous, burden of proof. Moreover, because plaintiff was able to work for several years despite impairments she now alleges to be disabling, the evidence of record may be sufficient to overcome the presumption of disability established when a plaintiff appears to meet or medically equal a listed impairment. On remand, the ALJ should re-assess whether plaintiff's impairments meet or medically equal Listing 11.04B as it is properly interpreted and whether plaintiff's past work activities overcome any presumption of disability.
Notably, plaintiff and defendant argue about the applicability of two cases which interpreted the Listing at issue — Gambill v. Bowen, 823 F.2d 1009 (6th Cir. 1987) and Sims v. Barnhart, 309 F.3d 424 (7th Cir. 2002). Because the decision in this case is not clear as to the ALJ's interpretation of the requirements of Listing 11.04B, the parties' arguments with respect to the Gambill and Sims cases are irrelevant and will not be further addressed.
See Vaughan v. Shalala, 58 F.3d 129, 131 (5th Cir. 1995) (holding, inter alia, that when a plaintiff is able to work for several years while suffering from ailments or impairments he later alleges to be disabling, it is proper for the ALJ to find those impairments non-disabling.)
VI. Recommendation
Based on the foregoing, I recommend that plaintiff's request for relief be GRANTED, the Commissioner's decision be REVERSED and this case 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).