ERIN L. SETSER, Magistrate Judge.
Plaintiff, Linda S. Land, brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a decision of the Commissioner of the Social Security Administration (Commissioner) denying her claims for a period of disability and disability insurance benefits (DIB) and supplemental security income (SSI) benefits under the provisions of Titles II and XVI of the Social Security Act (Act). In this judicial review, the Court must determine whether there is substantial evidence in the administrative record to support the Commissioner's decision. See 42 U.S.C. § 405(g).
Plaintiff protectively filed her current applications for DIB and SSI on October 26, 2007, alleging an inability to work since January 1, 1992, due to "Back ache nos, benign hypertension, myalgia, chronic obstructive pulmonary disorder, joint pain, acute pancreatitis, chest pain." (Tr. 114-115, 119). An administrative hearing was held on May 5, 2009, at which Plaintiff appeared with counsel and she and her friend testified. (Tr. 6-30).
By written decision dated November 2, 2009, the ALJ found that during the relevant time period, Plaintiff had an impairment or combination of impairments that were severe — back disorder; obesity; and anxiety disorder. (Tr. 40). However, after reviewing all of the evidence presented, he determined that Plaintiff's impairments did not meet or equal the level of severity of any impairment listed in the Listing of Impairments found in Appendix I, Subpart P, Regulation No. 4. (Tr. 40). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:
(Tr. 42). With the help of a vocational expert (VE), the ALJ determined Plaintiff could not perform her past relevant work, but would be able to perform other work, such as a small product assembler, small production machine operator, and production inspector. (Tr. 45).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which denied that request on December 3, 2010. (Tr. 1-3). Subsequently, Plaintiff filed this action. (Doc. 1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 5). Both parties have filed appeal briefs, and the case is now ready for decision. (Docs. 7, 8).
This Court's role is to determine whether the Commissioner's findings are supported by substantial evidence on the record as a whole.
It is well established that a claimant for Social Security disability benefits has the burden of proving her disability by establishing a physical or mental disability that has lasted at least one year and that prevents her from engaging in any substantial gainful activity.
The Commissioner's regulations require him to apply a five-step sequential evaluation process to each claim for disability benefits: (1) whether the claimant had engaged in substantial gainful activity since filing her claim; (2) whether the claimant had a severe physical and/or mental impairment or combination of impairments; (3) whether the impairment(s) met or equaled an impairment in the listings; (4) whether the impairment(s) prevented the claimant from doing past relevant work; and (5) whether the claimant was able to perform other work in the national economy given her age, education, and experience.
Of particular concern to the undersigned is the ALJ's RFC determination. RFC is the most a person can do despite that person's limitations. 20 C.F.R. §404.1545(a)(1). It is assessed using all relevant evidence in the record.
In the present case, Plaintiff was treated for various conditions on numerous occasions by her treating physician, Dr. R. Dale Clemens, for approximately twelve years, beginning in 1996. Over that period of time, Plaintiff suffered from,
On August 20, 2008, Dr. Clemens completed a Physical RFC Assessment, Short Form. In the form, Dr. Clemens reported that Plaintiff could not sit for six hours of an eight hour work-day; could not sit/stand/walk in combination for eight hours in an eight hour work-day; could not perform part-time work activities of any nature for more than ten hours in a forty hour work-week; required four or more unscheduled work breaks in an eight hour work-day due to physical restrictions; and had significant limitations in the ability to handle and work with small objects with both hands. Dr. Clemens also reported that the assessment was for the time period from April 27, 2008 and continuing. (Tr. 192, 242). Also on August 20, 2008, Dr. Clemens completed a Medical Source Statement, wherein he concluded that Plaintiff could: frequently lift and/or carry less than 10 pounds; occasionally lift and/or carry 10 pounds; stand and/or walk a total of 2 hours in an 8 hour work-day and, continuously for ½ hour before break — "uses crutches;" could sit a total of 4 hours in an 8 hour work-day, and continuously for 1 hour before break; push and/or pull (including hand/or foot controls) limited in lower extremities; required 5 or more work breaks or bathroom breaks; and must lie in a supine position for a total of 4 hours in an 8 hour work-day. (Tr. 193). Dr. Clemens further found that Plaintiff could climb, balance, squat, kneel, crouch, and bend less than 2 out of 8 hours; could reach in all directions less than 2 out of 8 hours; could handle (gross manipulation) 2 out of 8 hours; grip less than 2 out of 8 hours; feel 6 out of 8 hours; and must avoid all exposure to extreme cold, vibration, and hazards (machinery or heights). (Tr. 194). This assessment was also for the time period of April 23, 2008 and continuing. (Tr. 194).
On December 30, 3008, Dr. Clemens saw Plaintiff, who was complaining of leg pain, and noted that the pain was aggravated by movement, sitting and walking, and that there were no relieving factors. (Tr. 255). He noted associated symptoms included decreased mobility, limping, numbness and tingling in legs. (Tr. 255). It is also noteworthy that Plaintiff began using crutches in 1998 because of her back and leg pain. (Tr. 307).
In his decision, the ALJ addressed Dr. Clemens' conclusions as follows:
(Tr. 43).
The Court is concerned that the ALJ gave such little weight to Dr. Clemens' findings with respect to Plaintiff's physical abilities, especially since he had been treating her since 1996. "A treating physician's opinion is given controlling weight if it `is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [a claimant's] case record.'"
At one point in 2006, Dr. Clemens diagnosed Plaintiff with pancreatitis, chronic renal insufficiency, chronic obstructive pulmonary disease, diabetes, and anemia. (Tr. 207-208). However, the basis upon which Dr. Clemens gave these diagnoses is not clear. Plaintiff also has been using crutches since 1998, and there is no indication that Dr. Clemens, or any other physician, opined as to whether crutches were necessary, whether Plaintiff should be using them, or the impact the use of them might have on Plaintiff's ability to work. Further, the record is replete with instances where Plaintiff complained of experiencing bowel incontinence, to the point that she would not be able to leave home, and sometimes had to shower because she could not make it to the bathroom in a timely manner. Plaintiff's friend of twenty-four years corroborated this problem. (Tr. 26-27). The ALJ did not address this problem in his decision.
The Court believes that an examination by a gastroenterologist or an internist would be appropriate in order to see if Plaintiff's bowel condition could be treated effectively. Certainly, this condition, as well as some of the other conditions noted by Dr. Clemens, could further affect Plaintiff's ability to function in the workplace. Accordingly, the Court finds remand necessary so that the ALJ can more fully and fairly develop the record regarding Dr. Clemens' opinions and diagnoses and Plaintiff's physical RFC.
On remand, the ALJ is directed to submit interrogatories to Dr. Clemens regarding his various diagnoses, and the basis upon which he rendered those diagnoses. The ALJ should also obtain the opinion of an examining physician, specifically an internist or a gastroenterologist, regarding Plaintiff's bowel incontinence.
With this evidence, the ALJ should then re-evaluate Plaintiff's RFC and specifically list in a hypothetical to a VE any limitations that are indicated in the RFC assessments and supported by the evidence.
Accordingly, the Court concludes that the ALJ's decision is not supported by substantial evidence, and therefore, the denial of benefits to the Plaintiff should be reversed and this matter should be remanded to the Commissioner for further consideration pursuant to sentence four of 42 U.S.C. § 405(g).
