SAM A. CROW, Senior District Judge.
This is an action reviewing the final decision of the Commissioner of Social Security denying the plaintiff disability insurance benefits. The matter has been fully briefed by the parties.
The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that "the findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." The court should review the Commissioner's decision to determine only whether the decision was supported by substantial evidence and whether the Commissioner applied the correct legal standards.
The Social Security Act provides that an individual shall be determined to be under a disability only if the claimant can establish that they have a physical or mental impairment expected to result in death or last for a continuous period of twelve months which prevents the claimant from engaging in substantial gainful activity (SGA). The claimant's physical or mental impairment or impairments must be of such severity that they are not only unable to perform their previous work but cannot, considering their 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).
The Commissioner has established a five-step sequential evaluation process to determine disability. If at any step a finding of disability or non-disability can be made, the Commissioner will not review the claim further. At step one, the agency will find non-disability unless the claimant can show that he or she is not working at a "substantial gainful activity." At step two, the agency will find non-disability unless the claimant shows that he or she has a "severe impairment," which is defined as any "impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled. If the claimant's impairment does not meet or equal a listed impairment, the inquiry proceeds to step four, at which the agency assesses whether the claimant can do his or her previous work; unless the claimant shows that he or she cannot perform their previous work, they are determined not to be disabled. If the claimant survives step four, the fifth and final step requires the agency to consider vocational factors (the claimant's age, education, and past work experience) and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy.
The claimant bears the burden of proof through step four of the analysis.
Before going from step three to step four, the agency will assess the claimant's residual functional capacity (RFC). This RFC assessment is used to evaluate the claim at both step four and step five. 20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g); 416.920(a)(4), 416.920(e,f,g).
February 23, 2011, administrative law judge (ALJ) William G. Horne issued his decision (R. at 13-19). Plaintiff alleges that he has been disabled since January 1, 2000 (R. at 13). Plaintiff is insured for disability insurance benefits through December 31, 2004 (R. at 15). At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity from January 1, 2000 through December 31, 2004 (R. at 15). At step two, the ALJ found that plaintiff has the following severe impairment: hearing loss (R. at 15). At step three, the ALJ determined that plaintiff's impairments do not meet or equal a listed impairment (R. at 16). After determining plaintiff's RFC (R. at 16), the ALJ determined at step four that plaintiff is able to perform past relevant work as a corrections officer (R. at 18). Therefore, the ALJ concluded that plaintiff was not disabled (R. at 19).
According to SSR 96-8p, the RFC assessment "must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts ... and nonmedical evidence." The ALJ must explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved. The RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the ALJ must explain why the opinion was not adopted. SSR 96-8p, 1996 WL 374184 at *7. SSR rulings are binding on an ALJ. 20 C.F.R. § 402.35(b)(1);
The ALJ made the following RFC findings:
(R. at 16). Plaintiff argues that the ALJ failed to comply with SSR 96-8p by failing to explain the evidentiary basis for his RFC findings.
The record contains a report from Dr. Siemsen, who performed a state agency assessment after reviewing the record in the case. After summarizing the evidence, Dr. Siemsen stated the following:
(R. at 380). The ALJ noted this finding by Dr. Siemsen in his opinion (R. at 17).
The only RFC assessment in the file is from Dr. Puderbaugh, a treating physician. The assessment was prepared on September 25, 2009. He identified several physical impairments that he asserted prevented plaintiff from working, including COPD(emphysema), chronic pain, hypertonic bladder, hearing loss and poor night vision (R. at 374). He then prepared a RFC assessment which included the following limitations:
(R. at 375-376). Dr. Puderbaugh opined that he believed patient's claims of pain, and stated that they are supported by degenerative changes of the lumbar spine on an x-ray dated March 23, 2009. He stated that he has seen objective evidence of the pain (R. at 376). He further opined that plaintiff's pain is frequently debilitating, and that he suffers from fatigue which reduces his ability to perform activities noted on the assessment. He stated that plaintiff's impairments or treatment would result in the plaintiff being absent from work more than 3 times a month (R. at 377). He indicated that plaintiff's severe impairment of breathing and shortness of breath would make it difficult for him to work on a sustained basis. He stated that plaintiff had been functioning at this level since 2000. He stated that the laboratory and clinical findings that supported his opinions are: wears hearing aids, COPD on x-ray, FEV/FVC reduction on PFT's, degenerative spinal changes on x-ray, and history of pulmonary infarct (R. at 378).
The ALJ assigned little weight to Dr. Puderbaugh's opinion. The ALJ did so because Dr. Puderbaugh provided no evidence in support of his findings that the plaintiff was unable to perform work prior to the alleged onset date (R. at 18).
The treatment records referenced by the ALJ were from 2002. They show a diagnosis of diabetes and chronic obstructive pulmonary disease (COPD). It notes plaintiff has a chronic cough and shortness of breath (R. at 787). His respiration was clear with good air exchange bilaterally (R. at 788). The treatment records from 2002 are silent regarding plaintiff's physical limitations.
The ALJ's RFC findings limited plaintiff to medium work with a 10% hearing loss (R. at 16). The ALJ stated that his RFC assessment was based on the medical evidence of record during the period between January 1, 2000 and December 31, 2004, and plaintiff's descriptions of his limitations (R. at 18). However, the ALJ does not point to any medical evidence in support of a finding that plaintiff can perform medium work. Furthermore, plaintiff's testimony does not support the ALJ's RFC findings. Plaintiff testified that he had COPD, and that from 1999-2004 he was on oxygen. The COPD resulted in coughing a lot, and difficulty breathing, especially in the summertime (R. at 42). He indicated that he was on oxygen 24 hours a day (R. at 58). From 1999-2004, plaintiff testified that he could only walk about a couple of blocks, and had difficulty standing for more than 30 minutes (R. at 43).
As set forth above, "the RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts and nonmedical evidence."
In the case of
The problem in this case is the absence of evidence regarding plaintiff's impairments and limitations on or before December 31, 2004, his date last insured. Dr. Siemsen reviewed the records and found that there was insufficient evidence to make an RFC finding.
In light of the fact that the ALJ gave little weight to the opinions of Dr. Puderbaugh, the ALJ failed to explain how the evidence supports a finding that plaintiff can perform medium work, with some hearing loss. The only other medical opinion on this issue was the opinion of Dr. Siemsen, who after reviewing the file, stated that the record was insufficient to make an RFC finding. The ALJ does not cite to any evidence in support of his RFC finding; this is especially troubling when Dr. Siemsen opined that the record was insufficient to make an RFC finding. When the medical evidence indicates either that plaintiff has limitations that prevent employment, or that the record is insufficient to make an RFC finding, it is incumbent on the ALJ to comply with SSR 96-8p by providing a narrative explanation for his RFC finding that plaintiff can perform medium work, citing to specific medical facts and/or nonmedical evidence in support of his RFC findings.
The ALJ has failed to comply with SSR 96-8p. The ALJ, as noted above, must make every reasonable effort to make sure the file contains sufficient evidence to assess RFC. The ALJ has offered no explanation of how the evidence supports his RFC finding that plaintiff can perform medium work. Therefore, this case shall be remanded in order for the ALJ to comply with the requirements of SSR 96-8p, including a narrative discussion describing how the evidence supports each conclusion in the RFC assessment, citing specific medical facts and nonmedical evidence.
When this case is remanded, the ALJ shall develop a sufficient record on which to make RFC findings. The ALJ should consider recontacting plaintiff's treating medical sources, or request additional records. 20 C.F.R. § 404.1520b(c);
Plaintiff also asserts error by the ALJ for disregarding the testimony of the vocational expert (VE) and in the hypothetical question posed to the VE. The court will not address these issues because they may be affected by the ALJ's resolution of the case on remand after the ALJ makes RFC findings in accordance with SSR 96-8p, as set forth above.
IT IS THEREFORE ORDERED that the judgment of the Commissioner is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this memorandum and order.