ROBERT W. PRATT, Judge U.S. DISTRICT COURT.
Plaintiff, Katharine Elizabeth Collis, filed a Complaint in this Court on February 2, 2016, seeking review of the Commissioner's decision to deny her claim for Social Security benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq. and 1381 et seq. This Court may review a final decision by the Commissioner. 42 U.S.C. § 405(g).
Plaintiff filed applications for benefits on May 20, 2014. Tr. at 190-97. Plaintiff, whose date of birth is January 25, 1959 (Tr. at 190), was 56 years old at the time of the hearing on August 5, 2015, before Administrative Law Judge Henry Hamilton (ALJ). Tr. at 35-73. The ALJ issued a Notice Of Decision — Unfavorable on August 17, 2015. Tr. at 17-30. The Appeals Council declined to review the ALJ's decision on December 8, 2015. Tr. at 1-4. Thereafter, Plaintiff commenced this action.
At the first step of the sequential evaluation, the ALJ found that Plaintiff has not engaged in substantial gainful activity after July 15, 2013, the alleged disability onset date. At the second step, the ALJ found Plaintiff has the following severe impairments: degenerative disk disease with low back pain, stenosis, and chronic SI joint disarticulation. Tr. at 22. The ALJ found that Plaintiff's impairments were not severe enough to qualify for benefits at the third step of the sequential evaluation. At the fourth step, that ALJ found:
Tr. at 23. The ALJ found that Plaintiff is unable to perform her past relevant work. Tr. at 28. At the fifth step, the ALJ found that Plaintiff had acquired skills from her past relevant work which would allow her to perform other semi skilled work such as personal attendant. Tr. at 29. The ALJ found that Plaintiff is not disabled nor entitled to the benefits for which she applied. Tr. at 30.
On February 24, 2012, x-rays of Plaintiff's back showed blunting or scoliosis at L2-3, early degenerative disc disease at L2-3, and early arthrosis
On April 29, 2014, Plaintiff saw Paul D. Poncy, D.O., to reestablish medical care after a three year absence. Plaintiff's main concern was high blood pressure. Plaintiff also complained of a low back strain. Plaintiff reported that she had fallen and jarred her low back and tail bone. The doctor told Plaintiff she could take 800 mg of ibuprofen twice a day for 10 to 14 days for the low back pain. Plaintiff complained of dyspepsia which the doctor opined was reflux esophagitis, "maybe aggravated by hiatal hernia." Tr. at 320.
On May 5, 2014, Plaintiff was seen by Nicholas McCullen, OD, for an eye examination.
On July 1, 2014, Plaintiff saw Dr. Poncy. The doctor said that on examination he found Plaintiff's pain to be located at the SI joint rather than her coccyx. Plaintiff and the doctor discussed the possibility of an injection to try to control the chronic low back pain. Tr. at 332.
On July 21, 2014, Plaintiff underwent surgery to excise a mucocele
On July 24, 2014, Mary Greenfield, M.D., evaluated the claim for the State Agency. Tr. at 82-93. Dr. Greenfield wrote that Plaintiff was claiming disability due to tail bone injury, high blood pressure, and cataracts. The doctor determined that the impairments did not impose more than minimal functional limitations, and that they were not severe. Tr. at 85.
Plaintiff saw Dr. Poncy on August 18, 2014. The doctor increased the dosage of Plaintiff's high blood pressure medication. Plaintiff also reported low back pain. She told the doctor that she could work three to four hours after which she had increased pain which made it difficult to walk, climb stairs or other physical activity. Tr. at 319.
On September 3, 2014, Plaintiff told Dr. Poncy while working she was required to wear a low back lumbar support brace. Plaintiff said that for about three hours, the brace was comfortable, but thereafter it seemed to exacerbate her pain. Tr. at 331.
On October 7, 2014, Plaintiff was seen by Jack Brindley, M.D., for a disability physical examination. Tr. at 336-41. Plaintiff listed the problems contributing to her limited capacity for work as back pain while standing or sitting, pain in the knees under the knee caps, discomfort in her shoulders — left greater than right, and depression. Plaintiff reported that "a few years ago," she fell and hurt her back. Plaintiff's also reported pain in her knees and in her shoulders. Plaintiff reported that she could stand or sit for one or two hours, and that she could walk five or six blocks. Plaintiff had tried to return to work but after four hours the pain was unbearable. "She only lasted at this trial work for four days." Plaintiff said that walking or using stairs hurt her knees, and her knees feel as though they are going to buckle. Tr. at 339. The doctor made reference to the February 24, 2012 x-ray and to Dr. Poncy's note of April 29, 2014. Tr. at 340. After his examination, Dr. Brindley opined that Plaintiff had spinal stenosis which was causing problems with standing and sitting. The doctor opined that Plaintiff was still able to work, but that she would be limited to "a very sedentary type job." Tr. at 341.
On October 23, 2014, Scott Shafer, Ph. D., a psychologist at the State Agency, wrote that Plaintiff was asked about her comment to Dr. Brindley that depression was one of her problems. Plaintiff had been contacted and she reported that she is not being treated for depression and she does not think depression is the problem
X-rays of Plaintiff's left shoulder taken on October 30, 2014, showed "anatomic alignment with no fracture or dislocation. A type II acromion is present with no os acromiale." Tr. at 343. X-rays of Plaintiff's left knee showed "... anatomic alignment with no fracture or dislocation. The overlying soft tissue planes are unremarkable." Tr. at 344.
On December 3, 2014, Rene Staudacher, D.O., a physician at the State Agency, evaluated Plaintiff's physical impairments at the Reconsideration stage. Tr. at 103-05. Dr. Staudacher opined that the evidence showed that Plaintiff has the residual functional capacity to to lift and carry 50 pounds occasionally and 25 pounds frequently. The doctor opined that Plaintiff is able to stand, walk, and sit for about 6 hours of a work day. Tr. at 103. Regarding Dr. Brindley's opinion of Plaintiff's residual functional capacity, Dr. Staudacher wrote:
Tr. at 104-05. The reconsideration determination was that Plaintiff had the residual functional capacity to perform her past relevant work as it is performed in the national economy. Tr. at 106.
On January 7, 2015, Plaintiff saw Dr. Poncy because of her chronic lumbar disc disease with associated chronic intermittent pain. On examination, the doctor noted mild to moderate paraspinal muscle spasm in the lower thorasic and lumbar area which was quite tender on the left side. The doctor wrote: "She does try to do a little bit of work at times around her house but really finds a lot of distress when she does so. As a result I find it really probably not very likely that she is ever going to be [able] to return to a nursing home in a C.N.A. position." Tr. at 402.
On April 22, 2015, Plaintiff was seen at an emergency department with a five day history of productive cough, and shortness of breath. Plaintiff reported that because of insurance problems, she had not been able to take her blood pressure medication for a week. Tr. at 379. Plaintiff was given prescriptions for medication, and counseled to stop smoking. Tr. at 381. On April 24, 2015, Plaintiff followed up with Dr. Poncy who continued the medication prescribed
Plaintiff saw Dr. Poncy on March 9, 2015 for evaluation of her blood pressure. The doctor adjusted the medication because Plaintiff reported some periods of low pressure. Tr. at 401.
On June 30, 2015, Plaintiff saw Dr. Poncy because she was concerned about a 20 pound loss of weight. During the conversation, however, the doctor learned that Plaintiff's meals were being prepared by her daughter. Also, the doctor noted that Plaintiff had been working so that she was not eating regularly and burning more energy. Tr. at 407.
Plaintiff testified that she had been working for about a month. She said she was working at an assisted living facility, and that she worked at night which requires less work than the other shifts. She said that if she needed to lift someone, she was able to get help. Tr. at 41. Plaintiff testified that she takes frequent breaks and finds soft chairs in which to sit. She also said that she takes more medication than before she started working. Plaintiff said that she had tried to work in other nursing facilities but was unable to tolerate the lifting and stretching. Tr. at 42. In addition to her back pain, Plaintiff said that her knees give her problems, and that her shoulders hurt some. Tr. at 43.
Plaintiff was asked how far she can walk and she responded two blocks. "I've tried three blocks, and my legs get to hurting, and my back gets tired feeling and starts hurting." Tr. at 44. Plaintiff said she is able to stand for an hour or less, after which she needs to sit in a soft chair or lie down to rest. Tr. at 45.
Plaintiff said that because of her eyes, she needs reading glasses to complete her paper work. Tr. at 46.
Plaintiff said that bending and squatting "if it's for very long time," causes back pain. She also said that sitting puts pressure on her back or tail bone, and causes pain. Tr. at 47.
Plaintiff testified that if she is on her feet too long, or if she eats too much salt, her blood pressure rises and her hands and feet swell. Tr. at 48.
When asked if pain affects her ability to concentrate, Plaintiff said that she sometimes forgets things. Tr. at 50
In response to a question from the ALJ, Plaintiff said she can sit for an hour to an hour and a half before needing to stand up or walk. Tr. at 50.
The ALJ asked Plaintiff to describe the duties of her current job. Plaintiff said that she assists elderly people. Most of the time Plaintiff holds on to the patient so that they don't fall. She said that she also does light house keeping — sweeping and mopping the floor and dusting the furniture. Tr. at 51.
The ALJ asked Plaintiff what prevents her from working more than 30 hours per week in her current job. Plaintiff responded that being on her feet too much, or walking too far, causes her back to hurt. She said that the heaviest thing she lifts at work is a bucket of water that Plaintiff estimated weighs 30 pounds. Tr. at 52.
After Plaintiff testified, the ALJ called Vanessa Mae to testify as a vocational expert. Tr. at 52. The ALJ's first hypothetical question assumed the ability to lift and carry 50 pounds occasionally and 25 pounds frequently as well as the ability to do other exertional activities. Tr. at 56. In response, the vocational expert testified that Plaintiff's past work would be possible, and there would be other medium
Tr. at 57-58. In response, the vocational expert testified that Plaintiff's past relevant work is not possible, but that she has skills from her nurse's aide work which would transfer to the job of personal attendant. The vocational expert said there were about 4,000 such jobs in the state of Iowa, and 9,000 in the United States. The vocational expert also cited examples of unskilled light jobs. Tr. at 58. In response to a question which assumed the ability to engage in sedentary exertional activity, the vocational expert cited unskilled sedentary jobs which would be possible. Tr. at 59-60. The vocational expert testified that if an individual missed a day of work each month, competitive work would not be possible. The vocational expert testified that Plaintiff's transferable skills are her knowledge of medical care and record keeping. Tr. at 60. The vocational expert testified that the job of personal attendant was the only job she could find to which Plaintiff's skills would transfer. Tr. at 67.
In his decision, the ALJ wrote that his finding that Plaintiff has the residual functional capacity for light work was supported by the objective medical evidence. The ALJ wrote that treatment notes in the record do not sustain Plaintiff's subjective allegations. The ALJ wrote that Plaintiff's credibility was weakened by evidence of diverse daily activities and inconsistencies between her testimony and the medical records. The ALJ wrote:
Tr. at 28. The ALJ wrote that when the vocational expert was asked if occupations exist which can be performed by an individual with Plaintiff's age, education, past relevant work experience as well as the residual functional capacity found by the ALJ, the vocational expert cited the job of personal attendant as a representative occupation. Tr. at 29.
Owen v. Astrue, 551 F.3d 792, 798 (8th Cir.2008). In Brand v. Secretary of Dept. of Health, Education and Welfare, 623 F.2d 523, 527 (8th Cir.1980), Chief Judge Lay wrote that Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 S.Ct. 456 (1951) is "the guideline for the evaluation of the standard of review." In Universal Camera, the Court wrote:
Id., 340 U.S. at 490, 71 S.Ct. 456. In reviewing disability decisions from the Social Security Administration, the Court sits in an appellate capacity and is responsible for giving the agency decision a scrutinizing analysis. This requires the Court to determine the substantiality of the evidence by determining if the ultimate decision is supported by substantial evidence on the record as a whole. Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir.1987).
In Jackson v. Bowen, 873 F.2d 1111, 1113 (8th Cir.1989), the Court described its duty as follows:
Id. (citations omitted).
In short, a reviewing court should neither consider a claim de novo, nor abdicate its function to carefully analyze the entire record. Wilcutts v. Apfel, 143 F.3d 1134, 1136-37 (8th Cir.1998) citing Brinker v. Weinberger, 522 F.2d 13, 16 (8th Cir. 1975).
The most important issue in any disability case which proceeds beyond step three of the sequential evaluation is that of residual functional capacity:
McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982)(en banc).
In her brief, Plaintiff argues that the ALJ's finding at step five of the sequential evaluation is not supported by substantial evidence because it fails to apply special rules for transferability of skills for claimants of advanced age. Specifically, Plaintiff argues that the ALJ did not inquire into, and made no findings regarding, whether the job of personal attendant would require very little, if any, adjustment in terms of work settings or industry. Plaintiff also argued that the ALJ erred by failing to adopt the opinion of the consultative physician. The Court has very carefully considered the arguments made by Plaintiff as well as by the Commissioner who argues that the ALJ's decision is supported by substantial evidence on the record as a whole and not affected by errors of law.
In the case at bar, Plaintiff is an individual who, according to the regulatory scheme promulgated by the Commissioner, is a person of advanced age, i.e. older than 55 years old. 20 C.F.R. § 404.1563(e). Plaintiff's education is less than that of a high school graduate, i.e. a "limited education." 20 C.F.R. § 404.1564(b)(3). The vocational expert testified that Plaintiff's past relevant work was semi-skilled. 20 C.F.R. § 404.1568(b). As noted above, the ALJ found that Plaintiff has a residual functional capacity for light work activity. The ALJ found that Plaintiff could not be found disabled because she has transferable skills which can be used within the limits of her residual functional capacity.
One of Plaintiff's arguments is that the ALJ's finding of a light residual functional capacity is not supported by substantial evidence because of the opinion rendered by Dr. Brindley that Plaintiff is limited to "a very sedentary type job." The ALJ considered the objective medical findings, the level of medical care Plaintiff was receiving, Plaintiff's daily activities, and determined that she is limited to light exertional activity. Although Dr. Brindley's opinion is some evidence which detracts from the ALJ's finding, when the record is viewed as a whole, the ALJ's finding falls squarely within the zone of reasonable choice that the Court may not disturb.
At the fourth step of the sequential evaluation, the claimant's residual functional capacity is determined based on medical and other substantial evidence. If it is found that the claimant is unable to return to past relevant work the case proceeds to the fifth step of the sequential evaluation, where it must be determined if other work exists in significant numbers which can be
The Commissioner developed the Medical Vocational Guidelines found in appendix 2 of 20 C.F.R. These rules reflect the information found in the Dictionary of Occupational Titles concerning the existence of jobs in the national economy. The rules also take into account the other factors noted above. 20 C.F.R. § 404.1569. When a claimant's impairments result in exertional limitations, the rules will be applied to decide if the claimant is disabled or not disabled. 20 C.F.R. § 404.1569a(b). When a claimant has nonexertional limitations, such as pain, mental impairments, or respiratory impairments, the testimony of a vocational expert is usually required. Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). The Commissioner's regulations state that when a claimant has a combination of exertional and nonexertional impairments, the rules will not be applied "unless there is a rule that directs a conclusion that you are disabled based upon your strength limitations..." 20 C.F.R. § 404.1569a(d).
In the case at bar, because Plaintiff has a combination of exertional and nonexertional impairments, it was the ALJ's duty to first consult the Medical Vocational Guidelines to determine if Plaintiff qualifies for benefits under the medical vocational rules. McCoy v. Schweiker, 683 F.2d 1138, 1148 (8th Cir.1982)(en banc), and 20 C.F.R. Pt. 404, Subpt. P, App 2 § 200.00(e)(2). Ordinarily, a person of Plaintiff's age, education and residual functional capacity, would qualify for disability benefits under Rule 202.02 of the Medical Vocational Guidelines. However, the ALJ determined that this rule does not apply because the vocational expert testified that Plaintiff has skills from her past relevant work which transfer to the job of personal attendant. It is at this point that error arises.
In Lounsburry v. Barnhart, 468 F.3d 1111 (9th Cir.2006), the claimant was found to have a residual functional capacity for light work. Because the claimant had a high school education, the Rules in question were 202.06 (skills not transferable) and 202.07 (skills transferable). Id. at 1117. Rather than consulting the Rules, the ALJ determined that Lounsburry was not disabled because a vocational expert testified that Lounsburry had acquired skills which could be used in a specific job cited by a vocational expert. The Court of Appeals noted that the introductory paragraphs to the Rules for light exertional work state:
20 C.F.R. Pt. 404, Subpt. P, App 2 § 202.00(c). The Court of Appeals wrote:
Lounsburry v. Barnhart, 468 F.3d at 1117. Relying on Social Security Ruling 83-10, the Court of Appeals held that the phrase "significant range of ... work" requires a significant number of occupations. Id. The Court held that because Lounsburry's skills would transfer to precisely one occupation the Rules required a finding of disability. "One occupation does not constitute a significant range of work. Rule 202.00(c) directs a finding of disability for Lounsburry." Id.
In Byes v. Astrue, 687 F.3d 913, 917 (8th Cir.2012), the Court of Appeals agreed with the District Court that the application of an incorrect Rule was harmless error because even when the correct Rule was applied a finding of not disabled was directed. In the case at bar, on the other hand, when the appropriate Rule is applied, a finding of disabled is directed.
In this case, the ALJ's findings regarding age, education and residual functional capacity are all supported by substantial evidence on the record as a whole. The vocational expert specifically testified that the only job she could find to which Plaintiff's skills would transfer, was that of personal attendant. Thus, the Commissioner has not met the burden to prove that a significant range of occupations exist to which Plaintiff's skills are transferable. Rule 202.02 provides that a person who is limited to light exertion work, who is of advanced age, with a limited or less education, and work history of skilled or semi-skilled — skills not transferable, is found to be disabled. In Parsons v. Heckler, 739 F.2d 1334, 1340 (8th Cir.1984) the Court wrote: "Where further hearings would merely delay receipt of benefits, an order granting benefits is appropriate."
The Court has considered the evidence which supports, as well as the evidence which detracts from the decision made by the ALJ. After applying the balancing test noted in Gavin v. Heckler, 811 F.2d at 1199, and cases cited therein, this Court holds that the final decision of the Commissioner is affected by an error of law which requires reversal. The final decision of the Commissioner is reversed and remanded for an award of benefits.
The judgment to be entered will trigger the running of the time in which to file an application for attorney's fees under 28 U.S.C. § 2412 (d)(1)(B) (Equal Access to Justice Act). See also, McDannel v. Apfel, 78 F.Supp.2d 944 (S.D.Iowa 1999) (discussing, among other things, the relationship between the EAJA and fees under 42 U.S.C. § 406 B), and LR 54.2(b)
IT IS SO ORDERED.
