Opinion
Civil Action No. SA-04-CA-1148 RF (NN).
December 5, 2005.
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
TO: Hon. W. Royal Furgeson United States District Judge
I. Introduction
Plaintiff C.L. Washington seeks review and reversal of the administrative denial of his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") by the Administrative Law Judge ("ALJ") on June 24, 2004. Plaintiff contends that ALJ David Wurm'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 brief in support of his 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 and this action REMANDED for further proceedings consistent with this Memorandum and Recommendation.
Docket Entry 12.
Docket Entry 13.
Docket Entry 14.
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), 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 applications for DIB and SSI on April 7, 2003, alleging a disability beginning April 6, 2002. The SSA denied plaintiff's applications both initially, on June 5, 2003, and on reconsideration, July 22, 2003.
Transcript, at 13, 43-46, 130-132.
Transcript, at 27-33, 134-140.
Transcript, at 36-40, 142-145.
On August 22, 2003, plaintiff requested a hearing before an ALJ. The hearing was held on April 19, 2004. Plaintiff was represented by counsel at the hearing. Plaintiff's attorney was able to examine and question plaintiff during the hearing.
Transcript, at 41.
Transcript, at 146-165.
Plaintiff testified that he had a sixth grade education and past work experience as a construction helper. He told ALJ Wurm that he last worked on April 6, 2002. Plaintiff stated that he quit his job because his feet "gave out" on him and he had difficulty standing and walking.
Transcript, at 159.
Transcript, at 153.
Transcript, at 153.
Transcript, at 152, 154.
When asked about his exertional impairments, plaintiff testified that he had: arthritis and circulation problems in his feet; bunions on his right and left feet; pain, swelling and sores in his left leg; pain in his back and shoulder; and arthritis in his right hand. Plaintiff also stated that he had difficulty with his vision and needed eyeglasses but was unable to afford them. In addition, plaintiff told the ALJ that he had a bladder problem which required him to go to the bathroom approximately twelve times per day.
Transcript, at 150, 151, 152, 155, 156-7.
Transcript, at 154-155.
Transcript, at 157. Plaintiff stated that he had been on prescription medication which greatly improved his bladder condition. However, he stopped taking the medication on the advice of his physician because it made him dizzy. Transcript, at 157, 158.
Plaintiff stated that his exertional impairments impeded his ability to walk for more than one block before resting. Similarly, plaintiff testified that he was only able to lift a plate of food and could only stand forty five minutes at a time. However, plaintiff told the ALJ that he had no problems with sitting. Notably, plaintiff said that he did not drive a car but only because he did not own one.
Transcript, at 163.
Transcript, at 162, 164.
Transcript, at 163.
Transcript, at 161. Plaintiff testified that he took the bus or had his sister drive him to appointments. Transcript, at 161, 162.
When asked about his medications, plaintiff stated that he took Ibuprofen for his back pain. Plaintiff told the ALJ that the Ibuprofen made him drowsy. He further testified that he took Medaphormin for his diabetes and Sydalex to prevent or cure infections. Plaintiff was not, however, taking insulin to control his diabetes.
Transcript, at 156.
Id.
Transcript, at 157, 159.
Transcript, at 163.
On June 24, 2004, 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 Wurm found that the Medical-Vocational Rules directed a finding of not disabled because plaintiff retained the residual functional capacity to perform work activities.
Transcript, at 10-19.
After receiving the ALJ's unfavorable decision dated June 24, 2004, plaintiff requested review of the hearing and decision on August 23, 2004. On November 19, 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 December 15, 2004.
Transcript, at 7-9.
Transcript, at 4-6.
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 there were inconsistencies in plaintiff's earning records but that plaintiff had not engaged in substantial gainful employment since the alleged onset date of disability. ALJ Wurm then concluded at steps two and three that plaintiff had an impairment or combination of impairments (diabetes mellitus with some neuropathy) 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 to perform a wide range of light work with precautions for hands and feet.
Transcript, at 10-19.
Transcript, at 14, 16-17; ¶ 2, at 18.
Transcript, at 15, 16; ¶ 3, at 18.
Transcript, at 13; ¶ 4, at 18.
Transcript, at 17; ¶ 7, at 19.
Transcript, at 16, 17; ¶¶ 6, 11, at 19.
At step five, the ALJ held that Medical-Vocational Rule 202.10 directed a finding of not disabled. Based on the foregoing, ALJ Wurm concluded that plaintiff was not under a disability. B. Is the ALJ's June 24, 2004 Decision Supported by Substantial Evidence?
Transcript, at 18; ¶ 12, at 19.
Transcript, at 13, 18; ¶ 13, at 19.
Plaintiff challenges the ALJ's decision, asserting that the ALJ: (1) erroneously relied on use of the GRID Rules in reaching his conclusion; (2) improperly failed to refer to supporting evidence in arriving at his assessment of plaintiff's RFC; and (3) neglected to list which of the impairments he found to be severe. Plaintiff argues that these mistakes constitute reversible error and that substantial evidence does not support the ALJ's decision. In my opinion, certain of plaintiff's grounds for reversal are meritorious. For that reason, I recommend that plaintiff's request for relief be GRANTED and this action REMANDED for further proceedings consistent with this Memorandum and Recommendation.
1. Did the ALJ erroneously rely on the GRID Rules in reaching his decision?
In his first point of error, plaintiff asserts that the ALJ erroneously relied on the GRID Rules in reaching his decision. Plaintiff's second point of error asserts that the ALJ erred in articulating plaintiff's RFC and any limitations thereon. In his second point of error, plaintiff details the evidence which supports his position that the ALJ's reliance on the GRID Rules was inappropriate. Thus, plaintiff's first and second points of error are inextricably intertwined and will be discussed together.
The Medical-Vocational, or GRID, Rules allow an ALJ to determine by administrative notice that the plaintiff is capable of performing work available in the local or national economies. When the ALJ determines that a plaintiff is capable of performing work at a certain exertional level, such as sedentary, light, medium, etc., he may utilize the Rules to conclude that work exists which the plaintiff retains the RFC to perform.
However, use of the Rules is limited to situations in which the plaintiff's impairments are primarily or entirely exertional and his RFC matches the strength requirements of the particular category of work (e.g. sedentary, light, etc.) at issue.
[T]he Secretary may rely on the medical-vocational guidelines to establish that work exists for a claimant only if the guidelines' "evidentiary underpinnings `coincide exactly with the evidence of disability appearing on the record.'"
Bolton v. Callahan, 984 F.Supp. 510, 513 (N.D. Tex. 1997).
Lawler v. Heckler, 761 F.2d 195, 197 (5th Cir. 1985), quoting Deilolio v. Heckler, 705 F.2d 123, 127 (5th Cir. 1983), quoting Thomas v. Schweiker, 666 F.2d 199,1004 (5th Cir. 1982).
Stated another way:
If the Commissioner makes a decision the Plaintiff can perform a full range of some level of work in the economy, then the Commissioner may take administrative notice there are jobs in the economy which can be performed by the Plaintiff.
Bolton, 984 F.Supp., at 514 (internal citations omitted) (emphasis in original).
When the ALJ decides that plaintiff is capable of performing less than a full range of some exertional level of work, "the Guidelines do not apply." If the ALJ is not permitted to use the Rules, he can
Id. , citing Lawler, 761 F.2d, at 198.
only sustain [his] burden of proof by producing expert vocational testimony concerning the existence and availability of jobs in the national economy which the Plaintiff can perform.
Id. , citing 20 C.F.R.P.404, Sub-part P, App.2., § 200.00(e)(1) and (2); Harrell v. Bowen, 862 F.2d 471 (5th Cir. 1988); Fields v. Bowen, 805 F.2d 1168 (5th Cir. 1986).
In the instant case, the ALJ concluded in the body of the decision that plaintiff "retain[ed] the residual functional capacity to perform a wide range of light work with precautions for his hands and feet." At two later portions of the decision, ALJ Wurm held that plaintiff could "perform the demands of a wide range of light work." Because the ALJ did not find that plaintiff could perform the full range of any particular exertional category of work — either light or sedentary — he was not entitled to rely on the Guidelines.
Transcript, at 17.
Transcript, at 18; ¶ 11, at 19.
See Lawler, 761 F.2d, at 197.
It is likely that the ALJ's ultimate conclusion — that plaintiff was not disabled as that term is defined by the Act — was supported by the substantial evidence of the record. Although there are myriad medical records which document plaintiff's allegations of pain in his feet, bunions, neuropathy, lesions, leg pain, and toe blisters, none of those records impose medical limitations on plaintiff's ability to perform activities nor do any opine that plaintiff was disabled. Similarly, there are several medical reports in the record which indicate that plaintiff's diabetes was well controlled and that his lesions were "resolved." However, the ALJ's reliance on the Medical-Vocational Rules, despite concurrently finding that plaintiff was not capable of performing the "full range" of light work, constitutes an error of law. He failed to apply the appropriate legal standard. Consequently, this action must be remanded so that the ALJ can obtain testimony from a vocational expert. 2. Did the ALJ fail to articulate which impairments he considered severe in the decision?
See Transcript, at 90, 95, 97, 99, 101, 103, 109, 111, 113, 114, 118, 119, 126, 128, 129.
Transcript, at 111, 117, 118.
Western v. Harris, 633 F.2d 1204, 1206 (5th Cir. 1981) ("Under the statute, findings of fact by the Secretary are conclusive if supported by substantial evidence. Of course, no similar presumption of validity attaches to the Secretary's conclusions of law, including determinations of the proper standards to be applied in reviewing claims and the proper allocation of the burden of proof.")
In his third, and final, point of error, plaintiff asserts: the ALJ states that Mr. Washington does a ( sic) `severe' impairment . . . However, he never delineates which impairments he found to be severe.
Docket Entry 12, at 9.
Plaintiff's third point of error is based on a misreading of the decision. The ALJ explicitly held in two separate portions of the decision that he found plaintiff's diabetes mellitus with neuropathy to be a severe impairment. Therefore, plaintiff's third point of error is without merit.
Transcript, at 15; ¶ 3, at 18.
VI. Recommendation
Based on the foregoing, I recommend that plaintiff's request for relief be GRANTED and this action REMANDED for further proceedings consistent with this Memorandum and Recommendation. On remand, the ALJ should be directed to obtain testimony from a vocational expert regarding which, if any, jobs plaintiff retained the RFC to perform.
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).