MONTI L. BELOT, District Judge.
This is an action reviewing a final decision of the Commissioner of Social Security denying plaintiff disability insurance benefits.
The court's standard of review is contained in 42 U.S.C. § 405(g), which provides in part that "[t]he 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.
Substantial evidence requires more than a scintilla, but less than a preponderance, and is satisfied by such evidence as a reasonable mind might accept as adequate to support the conclusion. The determination is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it really constitutes a mere conclusion.
Although the court is not to reweigh the evidence, the findings of the Commissioner will not be mechanically accepted. Nor will the findings be affirmed by isolating facts and labeling them substantial evidence, as the court must scrutinize the entire record in determining whether the Commissioner's conclusions are rational.
The Social Security Act provides that an individual shall be determined to be under a disability only if the claimant can establish that she has a physical or mental impairment expected to result in death or last for a continuous period of twelve months which prevents her from engaging in substantial gainful activity (SGA). The claimant's physical or mental impairment or impairments must be of such severity that she is not only unable to perform her previous work but cannot, considering her age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.
The claimant bears the burden of proof through step four of the analysis.
Plaintiff initially alleged a disability beginning in July 1999, but later amended her claim to allege an onset date of October 25, 2010. Following a hearing, Administrative Law Judge (ALJ) Judson Scott denied her claim in a written decision issued January 28, 2013. Plaintiff's request for review was denied by the Appeals Council, making the ALJ's ruling the Commissioner's final decision for purposes of judicial review.
The ALJ found at step one that plaintiff was not currently engaging in substantial gainful activity. At step two, he found plaintiff had the following severe impairments: osteoarthritis; lumbar degenerative disk disease; H. Pylori infection; and erosive gastritis. At step three, the ALJ determined that none of plaintiff's impairments, alone or in combination, met or equaled any of the impairments listed in the regulations.
The ALJ next found that plaintiff "has the residual functional capacity to perform medium work as defined in 20 CFR 416.967(c) except with no concentrated exposure to extreme heat, cold or humidity." Doc. 9 at 21.
At step four, the ALJ found that plaintiff has no past relevant work. At step five, he found that, considering plaintiff's age, education, work experience (together with the Medical-Vocational Guidelines) and RFC, there are jobs that exist in significant numbers in the national economy that plaintiff can perform.
Plaintiff's arguments are not easy to decipher. Aside from being opaque, the arguments are inexplicably laced with unsubstantiated attacks on the integrity of the ALJ. These accusations are not only a distraction from the merits of the case, they are wholly inappropriate. Plaintiff's counsel has engaged in such tactics on at least one other occasion in this court.
Sifting through the more coherent passages of plaintiff's briefs, the court gathers that plaintiff makes three claims of error. First, plaintiff claims the ALJ failed to properly weigh Dr. West's opinion that plaintiff had a limited ability to bend or stoop. Doc. 12 at 20-21. Second, plaintiff contends the ALJ erred in finding that plaintiff's complaints of disabling pain were not credible. Doc. 12 at 24. And third, plaintiff argues the ALJ's finding that plaintiff could perform medium work was not supported by substantial evidence. Doc. 12 at 25.
In the first half of 2010, plaintiff had numerous emergency room and doctor visits, largely because of anxiety, nausea, gastric problems, and hypertension. She was diagnosed with helicobacter pylori disease and experienced significant weight loss. Her physician recommended a colonoscopy, but plaintiff was anxious about it and cancelled a scheduled procedure at least five times. Other records indicate that plaintiff frequently refused to take prescribed medications due to anxiety over their potential side effects.
In August 2010, plaintiff was diagnosed with a small hiatal hernia and erosive gastritis. In December 2010, a CT scan of plaintiff's head was taken based upon complaints of vertigo. The test revealed no abnormalities. Plaintiff also complained of shortness of breath, which led to another scan indicating that her heart was normal and her lungs were clear, while she had a "very subtle rotoscoliotic deformity."
In March 2011, plaintiff was assessed as having chronic gastritis, rheumatoid arthritis, hypertension, and anxiety. Among other things, the doctor's report indicates that plaintiff stated she had stiffness in her knees but she had gotten it under control through yoga. She could sometimes walk a block and sometimes a mile, and standing was not particularly affected. The report indicates plaintiff was in no apparent distress and all of her joints appeared normal, with no painful or swollen joints or sore muscles. The doctor assessed that plaintiff "has good days and bad days for the sort of work she is to do. It sounds like she can still do that being a counselor. Probably cannot do a lot of manual labor with her arthritis." Doc. 9 at 634.
An x-ray of plaintiff's knees and spine in June 2011 showed "minimal/mild" degenerative changes in the knees, degenerative changes in the lumbar spine with and mild left scoliotic curvature at the thoracolumbar junction, and mild bilateral sacroiliac articulation degenerative changes. Doc. 9 at 654, 689. The greatest change was at L1-2, where there was some intradiscal gas density, disc space narrowing, endplate sclerosis and spurring. The severity of the degenerative change was not markedly different from her condition shown by an April 2010 x-ray.
Plaintiff testified she had had only one prior job in the fifteen years before the alleged onset of disability. She worked between 1995 and 2000 as a counselor, offering assistance via telephone to people in crisis. She testified that she tried to do the work part-time after that, but she started having severe back and neck pain from sitting too long. She curtailed the work, she said, as she was not making much money at it. Plaintiff was 56 years old at the time of the alleged onset.
West opined that plaintiff's hernia would not impair her ability to work. As for the osteoarthritis and spondyloarthropathy, West said these conditions would "somewhat impact" plaintiff's RFC because "she would have some difficulty bending over."
The ALJ in his written decision assigned "great weight" to West's opinion that plaintiff does not have rheumatoid arthritis. But West's opinion "concerning the claimant's residual functional capacity is only given some weight because he did not adequately consider the claimant's activities, which indicate a greater level of functioning." Doc. 9 at 24. For reasons set forth below, the court concludes that this latter analysis of West's opinion was inadequate and amounts to error under the regulations.
West opined on physical limitations resulting from plaintiff's impairments — including specific limitations on lifting, stooping and crouching. The ALJ failed to specifically address any of these limitations apparently because he considered all of them inconsistent with "claimant's activities." Elsewhere in his opinion, the ALJ identified the following activities: a doctor's note indicating plaintiff was going to go to New Mexico "where she hopes to get a job in the Theatre down there"; a note that plaintiff helps out in her husband's computer business; a note that she has "been active in teaching dance to some people and active in her house"; and a note that she intended to start her own dance studio.
The ALJ failed to address how or why these activities contradicted West's limitations. To begin with, the first and last item cited are not physical activities at all. Plaintiff's hope of obtaining a job in the theater
The lack of explanation for plaintiff's RFC in this case is compounded by other oversights. First, the ALJ made no findings at all concerning plaintiff's various physical abilities but summarily concluded that she "has the residual functional capacity to perform medium work" except for environmental exposure. Doc. 9 at 21. In determining an RFC, the ALJ is required to consider and make specific findings as to the claimant's physical abilities.
Third, the ALJ went on to find that plaintiff had no past relevant work, Doc. 9 at 24, despite evidence that plaintiff had worked full time as a counselor until 2000. Perhaps there is some valid reason for finding that plaintiff's prior work did not qualify as substantial gainful activity, but that finding is not explained in the ALJ's opinion and the reason is not apparent from the record.
Finally, the court cannot accept defendant's suggestion that the foregoing omissions amount to harmless error. Defendant asserts that a vocational expert "testified that a hypothetical individual with the limitations Dr. West opined could perform some of Plaintiff's past work, as well as other jobs that exist in significant numbers in the national economy." Doc. 13 at 6, n.3. Based on that premise, defendant argues that "[e]ven if the ALJ had accepted Dr. West's limitations, Plaintiff would not be found disabled under the Act." This argument appears to be based largely on speculation. To begin with, the ALJ made no predicate findings that would support such an argument. For example, the ALJ found that plaintiff had no relevant past work, and thus never considered whether plaintiff could still perform her past work. Moreover, it is not entirely clear that the ALJ posited a hypothetical to the vocational expert that accurately incorporated West's limitations. West opined among other things that plaintiff's stooping should be limited "to occasional to never." Doc. 9 at 81. The ALJ's hypothetical to the vocational expert stated that the "posturals are essentially occasional," without mentioning anything specific about stooping or bending. Doc. 9 at 93. Assuming the ALJ was attempting to reiterate West's limitations, he did not do so with complete accuracy, and the court cannot say how this might have affected the testimony or the ALJ's ultimate findings.
In view of the foregoing findings, the court will not reach plaintiff's argument challenging the ALJ's assessment of her credibility, because that issue may be affected by the ALJ's resolution of the other issues on remand, including a determination and explanation of plaintiff's RFC. Upon remand, the ALJ may conduct any further proceedings permitted by regulation and is not precluded from reaching any particular result — whether a finding of disabled or non-disabled — provided the ruling is supported by substantial evidence and applies the correct legal standards. As noted by Judge Murguia in
Pursuant to sentence four of 42 U.S.C. § 405(g), the Commissioner's decision is reversed and remanded for further proceedings consistent with this Memorandum and Order.
IT IS SO ORDERED.
Judge Murguia recently advised plaintiff's counsel that these types of personal attacks "are unwarranted, distracting, and [do] not aid counsel's attempts to advocate on behalf of his client."