KIMBERLY E. WEST, Magistrate Judge.
Plaintiff Leann Wills (the "Claimant") requests judicial review of the decision of the Commissioner of the Social Security Administration (the "Commissioner") denying Claimant's application for disability benefits under the Social Security Act. Claimant appeals the decision of the Administrative Law Judge ("ALJ") and asserts that the Commissioner erred because the ALJ incorrectly determined that Claimant was not disabled. For the reasons discussed below, it is the finding of this Court that the Commissioner's decision should be and is REVERSED and the case is REMANDED for further proceedings.
Disability under the Social Security Act is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . ." 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Social Security Act "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . ." 42 U.S.C. §423(d)(2)(A). Social Security regulations implement a five-step sequential process to evaluate a disability claim. See, 20 C.F.R. §§ 404.1520, 416.920.
Judicial review of the Commissioner's determination is limited in scope by 42 U.S.C. § 405(g). This Court's review is limited to two inquiries: first, whether the decision was supported by substantial evidence; and, second, whether the correct legal standards were applied.
Claimant was born on February 7, 1966 and was 48 years old at the time of the ALJ's decision. Claimant completed her education through the tenth grade. Claimant has worked in the past as a chicken hanger, box maker, and gardener. Claimant alleges an inability to work beginning June 24, 2011 due to limitations resulting from chest pain, COPD, diabetes, neuropathy, and high blood pressure.
On November 14, 2012, Claimant protectively filed for supplemental security income pursuant to Title XVI (42 U.S.C. § 1381, et seq.) of the Social Security Act. Claimant's application was denied initially and upon reconsideration. On January 27, 2014, an administrative hearing was held before Administrative Law Judge ("ALJ") Lantz McClain in Tulsa, Oklahoma. He issued an unfavorable decision on March 19, 2014. The Appeals Council denied review of the ALJ's decision on June 4, 2015. As a result, the decision of the ALJ represents the Commissioner's final decision for purposes of further appeal. 20 C.F.R. §§ 404.981, 416.1481.
The ALJ made his decision at step five of the sequential evaluation. He determined that while Claimant suffered from severe impairments, she did not meet a listing and retained the residual functional capacity ("RFC") to perform a full range of sedentary work.
Claimant asserts the ALJ committed error in (1) failing to afford Claimant her due process rights by failing to make a full and fair inquiry; (2) failing to properly account for all of Claimant's impairments and their limitations at steps four and five; and (3) failing to perform a proper credibility determination. Claimant also alleges the Appeals Council failed to properly consider the treating physician's opinion and remand the case.
In his decision, the ALJ found Claimant suffered from the severe impairments of coronary artery disease status post myocardial infarction; hypertension; and non-insulin dependent diabetes mellitus with neuropathy. (Tr. 41). The ALJ determined Claimant retained the RFC to perform a full range of sedentary work. In so doing, he found Claimant was able to occasionally lift/carry ten pounds, frequently up to ten pounds, and stand/walk at least two hours in an eight hour workday and sit at least six hours in an eight hour workday. (Tr. 42). After consulting with a vocational expert, the ALJ concluded that Claimant could perform the representative jobs of assembler and clerical mailer, both of which the ALJ determined existed in sufficient numbers in both the regional and national economies. (Tr. 47). As a result, the ALJ determined Claimant was not under a disability since November 14, 2012, the date the application was filed.
Claimant first contends that the Appeals Council failed to consider the RFC opinion of Claimant's treating physician, Dr. Bradley G. Campbell, as new and material evidence. On September 29, 2014, after the ALJ's decision was issued, Dr. Campbell authored an RFC form on Claimant's condition. He opined Claimant could sit for two hours at a time and seven hours in an eight hour workday; stand for one hour at a time and for one hour in an eight hour workday; walk for one hour at a time and for one hour in an eight hour workday; lift/carry up to 10 pounds frequently and 20 pounds occasionally; use both feet for repetitive movements; could not use either hand for repetitive movement to include grasping; could occasionally bend and squat but never crawl or climb; and should not be exposed to unprotected heights or being around moving machinery. Dr. Campbell also found Claimant could not work on a sustained and continuing basis. (Tr. 11).
He determined Claimant's impairments would interfere with her ability to engage in work that required a consistent pace of production due to the distraction caused by pain, itching and burning. The same causes would interfere with Claimant's ability to complete job tasks in a timely manner. Dr. Campbell estimated that Claimant would be absent from work due to her conditions about three times a month. However, her medications were not expected to interfere with her ability to concentrate or reason effectively. (Tr. 12).
In he narrative statement, Dr. Campbell stated that Claimant suffered from diabetes with peripheral neuropathy which manifested in pain, burning, and weakness. He also stated that the condition could improve. He reiterated that Claimant would be limited in any production work. He also stated Claimant was working hard to improve the situation. He recommended weight loss, diet attention, exercise, and smoking cessation. (Tr. 13).
The Appeals Council stated that it considered Dr. Campbell's medical records dated from June 5, 2014 to October 29, 2014 as well as his RFC assessment form dated September 29, 2014. The Council found that the ALJ's decision considered the time period through March 19, 2014 and, therefore, the new information provided did not apply to the relevant period. (Tr. 2).
Additional evidence submitted after the ALJ's decision but before the administrative review by the Appeals Council must be considered if it is new, material, and related to the period on or before the date of the ALJ's decision.
Dr. Campbell's report is both new — it was not before the ALJ when he made his decision — and material — the ALJ's decision might reasonably have been different if the new evidence had been before him when the decision was rendered.
The central issue remains whether Dr. Campbell's assessment — clearly rendered after the ALJ's decision — relates back to the relevant period encompassed by the ALJ's decision. Dr. Campbell's treating relationship with Claimant pre-dates the ALJ's decision of March 19, 2014 and included the conditions to which he attributes Claimant's functional limitations — primarily Claimant's diabetes and associated neuropathy. (Tr. 311, 313, 316, 357-62, 364, 366). Since Dr. Campbell does not specifically restrict his assessment to a period subsequent to the relevant time period, it can reasonably be presumed that his opinion includes the period pre-dating the ALJ's decision. This Court is particularly mindful of the fact that this assessment is provided by a treating physician. On remand, the ALJ shall consider Dr. Campbell's RFC assessment and evaluate any effect the physician's findings may have upon his decision. Should the ALJ have any question as to whether any of Dr. Campbell's findings relate to the relevant period, he should make inquiry into whether his later findings relate back to that period.
Claimant contends the ALJ should have ordered a consultative examination with nerve conduction studies as requested by her attorney at the administrative hearing. Claimant frames this omission as a due process violation precipitated by the ALJ's failure to adequately investigate her physical and mental limitations. In his decision, the ALJ acknowledged that Claimant's representative requested the consultative examination but concluded that the record was adequately developed and that a consultative examination was unnecessary. (Tr. 46).
As an initial matter, this Court does not perceive the failure to order a consultative examination as a due process violation. The constitutional requirement for procedural due process applies to social security hearings.
Generally, the burden to prove disability in a social security case is on the claimant, and to meet this burden, the claimant must furnish medical and other evidence of the existence of the disability.
The duty to develop the record extends to ordering consultative examinations and testing where required. Consultative examinations are used to "secure needed medical evidence the file does not contain such as clinical findings, laboratory tests, a diagnosis or prognosis necessary for decision." 20 C.F.R. § 416.919a(2). Normally, a consultative examination is required if
None of these bases for ordering a consultative examination exists in the record. The ALJ did not violate his duty to develop the record by not ordering further medical evaluations.
Claimant contends the ALJ failed to include the limitations from her severe impairments into the RFC and the hypothetical questioning of the vocational expert. Claimant asserts the ALJ failed to account for her neuropathy in the RFC. "[R]esidual functional capacity consists of those activities that a claimant can still perform on a regular and continuing basis despite his or her physical limitations."
Claimant has been found to have decreased sensation in her extremities. (Tr. 327). Moreover, Dr. Campbell's assessment which this Court has ordered to be considered on remand indicates Claimant can only engage in walking/standing for one hour in an eight hour workday. (Tr. 10). As a result, the ALJ shall reevaluate his RFC findings after consideration of Dr. Campbell's assessment on remand.
Claimant also asserts the ALJ should have considered the effects of her pain stemming from headaches, chest pains, and COPD as non-severe impairments. Nothing in the record supports Claimant's subjective allegations of significant pain stemming from her headaches. She has reported to treating physicians that she experienced headaches once per week. (Tr. 366). She stated at the hearing that she took Tylenol and covered her head to treat the condition. (Tr. 67). The nature, extent, and severity of Claimant's chest pains also are not supported by the medical record. Only isolated references appear in the record to Claimant suffering from COPD. No functional limitation was reported from this condition.
The focus of a disability determination is on the functional consequences of a condition, not the mere diagnosis. See e.g.
As for Claimant's assertion that the ALJ should have assessed her mental impairments, the briefing represented the first time this issue was asserted. Claimant denied that either her medications or any of her symptoms affected her mental ability. (Tr. 71). This assertion is without substantiation.
The ALJ found Claimant was not "entirely credible." (Tr. 44). He based this conclusion on the inconsistencies between Claimant's stated restrictions and activities and statements to her treating physicians. (Tr. 44-46). He also set out in considerable detail the extent to which Claimant's allegations were not supported by the objective medical record.
It is well-established that "findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings."
Factors to be considered in assessing a claimant's credibility include (1) the individual's daily activities; (2) the location, duration, frequency, and intensity of the individual's pain or other symptoms; (3) factors that precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, the individual receives or has received for relief of pain or other symptoms; (6) any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and (7) any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. Soc. Sec. R. 96-7p; 1996 WL 374186, 3.
An ALJ cannot satisfy his obligation to gauge a claimant's credibility by merely making conclusory findings and must give reasons for the determination based upon specific evidence.
The decision of the Commissioner is not supported by substantial evidence and the correct legal standards were not applied. Therefore, this Court finds the ruling of the Commissioner of Social Security Administration should be and is
IT IS SO ORDERED.
