Roberts v. SSA

Filing 30

ORAL OPINION (transcript from hearing held on January 29, 2010). Signed by Magistrate Judge David D. Noce on 3/1/2010. (JMC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION SHERRY LEEANN ROBERTS, Plaintiff, v. SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) No. 1:09-CV-9-DDN ) ) ) )

ORAL OPINION BEFORE THE HONORABLE DAVID D. NOCE UNITED STATES MAGISTRATE JUDGE JANUARY 29, 2010

APPEARANCES: For Plaintiff:

Andrew R. Tarry, Esq. (via telephone) TARRY LAW FIRM, L.L.C. 827 Broadway Cape Girardeau, MO 63701 Nicholas P. Llewellyn, AUSA OFFICE OF U.S. ATTORNEY 111 South Tenth Street, 20th Floor St. Louis, MO 63102 Sean Stewart, Special AUSA (via telephone)

For Defendant:

TRANSCRIBED FROM DIGITAL RECORDING BY: Gayle D. Madden, CSR, RDR, CRR Official Court Reporter United States District Court 111 South Tenth Street, Third Floor St. Louis, MO 63102 [phone]

2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Proceedings started at 11:07 a.m.) THE COURT: on the record again. All right. This is Judge Noce, and we're

This is the case of the United -- of

Sherry LeeAnn Roberts against Michael J. Astrue, Commissioner of Social Security, in the Southeastern Division of the Court, Case No. 1:09-CV-9, and the matter is before the Court now for the rendering of an oral opinion, and participating by conference telephone call, representing the Plaintiff, is attorney Mr. Tarry. MR. TARRY: THE COURT: Can you hear me, Mr. Tarry? Yes, I can. All right. And participating by

conference telephone call, representing the Defendant, is Mr. Stewart. Can you hear me, Mr. Stewart? Yes. And here in the courtroom,

MR. STEWART: THE COURT:

All right.

representing the Defendant, is Assistant U.S. Attorney Nicholas Llewellyn. All right. I apologize, Mr. Llewellyn. The following oral opinion is intended to

be the opinion of the Court judicially reviewing the denial of the Plaintiff's claims for Supplemental Security Income benefits under Title XVI of the Social Security Act. The

Court has jurisdiction over the subject matter of the action under Title 42 U.S.C. § 405(g) and 1381(c)(3) but primarily 1381(c)(3) for Title XVI. The parties have consented to the exercise of

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3 authority by this U.S. Magistrate Judge under Title 28 United States Code § 636(c). The Court earlier this morning heard oral arguments on the pleadings of the parties, and the Court now issues its ruling in this oral opinion. A summary documentary order with

references to this oral opinion will be issued, hopefully today by docket text order. At this time, I will order the

clerk to secure a transcript of this oral opinion, which will be filed as a documentary rendition of the -- of the Court's opinion available to the parties. On February 22, 2006, Plaintiff Sherry LeeAnn Roberts applied for Supplemental Security benefits under Title XVI of the Act. Under Title 42 United States Code § 1381 to 1383,

based upon her alleged disability, she alleged in her applications that she became disabled for the current application beginning on November 23, 2005, at age 49, on account of degenerative disk disease, anxiety, depression, chronic pain, and back pain. The claims were denied by the

state agency on April 11, 2006. On August 30, 2007, a hearing was held before a federal Administrative Law Judge, and on October 25, 2007, the ALJ denied the Plaintiff's claim. Thereafter, the Appeals

Council denied a review, and the decision of the ALJ has become the final decision of the Commissioner of Social Security, and it's the ALJ's decision that is now before the

4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Court for judicial review. Generally stated, the Administrative Law Judge decided that the -- the Plaintiff has not worked at substantial gainful activity since the date she filed her application for Supplemental Security Income, and the ALJ went through the five steps of the prescribed analysis, and I will beg counsel's indulgence as I flip to the various parts of the record and my notes for this opinion. The Administrative Law Judge found at page -- at transcript page 14 that the claimant is 49 years of age, she has a high school education, she has past relevant work as a Certified Nurse Aide, and she has not engaged in substantial gainful activity since February 22, 2006, the date of her application. The Administrative Law Judge then found that the Plaintiff has degenerative disk disease, anxiety, and depression which are severe in combination. Then the Administrative Law Judge went on to consider and to find that the Plaintiff did not have any of those individual impairments or any combination of them that met or equaled medically any of the listed impairments in the Commissioner's list of disabling impairments. Then the Administrative Law Judge determined that, after considering the entire record, the -- the judge found that the Plaintiff had the residual functional capacity to

5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 perform the full range of light work. And then the Administrative Law Judge found that the Plaintiff could not perform any past relevant work and then acknowledged that the burden shifted to the Commissioner to show that there are other jobs existing in significant numbers in the national economy or local economies that the Plaintiff could perform consistent with her medically determinable impairments, functional limitations, age, education, and work experience. The Administrative Law Judge determined that the transferability of job skills was not material to the determination of disability because the Administrative Law Judge immediately jumped to the application of the medical vocational rules to determine that the Plaintiff was not disabled and invoked Rules 202.14 and 202.21 and rendered a decision -- the decision that the Plaintiff was not disabled. The Court's role on judicial review of the Commissioner's decision is to determine whether the Commissioner's findings and, in this case, the Administrative Law Judge's findings comply with the relevant requirements and are supported by substantial evidence in the record as a whole, and for that purpose, I cite the case of Pate-Fires against Astrue, 564 F.3d 935, at page 942, Eighth Circuit, 2009, and from that opinion can be discerned the principles that substantial evidence is less than a preponderance but it

6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is enough that a substantial mind would find it adequate to support the Commissioner's conclusion. In determining whether the evidence is substantial, the Court must consider evidence that both supports and detracts from the Commissioner's decision; however, as long as substantial evidence supports the decision, the Court may not reverse it merely because substantial evidence exists in the record that would support a contrary outcome or because the Court would have decided the case differently, and that -that's a standard that can marshal many, many, many case opinions. To be entitled to disability benefits, a claimant must prove that she is unable to perform any substantial gainful activity due to a medically determinable physical or mental impairment that would either result in death or which has lasted or could be expected to last for at least 12 continuous months, and aside from the Pates -- the Pate-Fires opinion, the primary authority is the statute, which is, of course, 42 U.S.C. § 423(a)(1)(D), 423(d)(1)(A), and 1382c(a)(3)(A), and then the five-step regulatory framework is to be used to determine whether the individual qualifies for disability. As I have described earlier, the Administrative Law Judge determined at step one that the Plaintiff was not currently engaged in substantial gainful activity. He

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7 determined at step two that she suffers from a combination of impairments which in combination are severe and at step three that the -- the Plaintiff does not equal a listed -- that the combination of impairments are not individually listed or in combination medically equivalent to one of the listed disabling impairments, and at step four, the -- the Administrative Law Judge determined that the Plaintiff retained the residual functional capacity to perform -- well, determined that the -- the claimant could not perform her prior relevant work with the residual functional capacity that the Court -- the judge found and recognized that the burden shifted to the -- to the Commissioner to show that the Plaintiff, nevertheless, had the ability to perform other work. And as the arguments of the parties indicated, the Plaintiff takes issue with the determination by the Administrative Law Judge that in reaching a determination at step five that there was other work that the Plaintiff could perform. The evidence that was used for this purpose was a

reference to the -- to the -- the grids, the -- the administrative findings that the Social Security Administration makes with respect to the characteristics of the -- of the Plaintiff, finding that she was not disabled, and the argument is that -- by the Plaintiff -- that that was improper, that -- and a vocational expert should have been

8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 called to give expert testimony on that fact rather than a reference to the -- to -- to the grid rules. Ultimately, it's my very, very clear understanding, I believe, that the Administrative Law Judge did commit error by not invoke -- engaging the services of a vocational expert because I think at various parts in the -- in the opinion the law was not properly applied. To begin with, the ALJ determined that the Plaintiff, indeed, did suffer from anxiety and depression. The opinion

of the Administrative Law Judge focuses not entirely but almost substantially, mostly on the Plaintiff's mental limitations and impairments. They did exist. The

Administrative Law Judge did not determine that they did not exist, but at several places in the opinion, the Administrative Law Judge refers to the fact that -- and I'll look at page -- at this time at page 15 of the opinion, and it's -- it is in several places on page 15. The -- the

reference is made to the fact that there was not a duration of 12 consecutive months for what amounts to, in effect almost, a disabling result from the presence of the mental impairment. I believe that the -- a reference to the -- to the Commissioner's regulations with respect to the application of the grids do not require that before a vocational expert must be engaged that a nonexertional limitation must be -- have the durational limitation or requirement that flat-out ultimate

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determination of disability requires.

9 At Title 20 of the Code

of Federal Regulations § 416.969a, the regulation speaks generally about how -- and with respect to the application of the -- of the guidelines that your impairments and related symptoms, such as pain, may cause limitations in function or restrictions which limit your ability to meet certain demands of jobs. These limitations may be exertional, nonexertional, Limitations are classified as

or a combination of both.

exertional if they affect your ability to meet the strength demands of jobs. There's not a reference in that regulation

to a temporal durational period. It goes on and talks about in subsection (c) nonexertional limitations. When the limitations and

restrictions imposed by your impairments and related symptoms, such as pain, affect only your ability to meet the demands of jobs other than the strength demands, we consider that you have only nonexertional limitations or restrictions, and then it goes into some examples of nonexertional limitations or restrictions, and it includes nervousness, anxiety, or depression, which, of course, are what the Plaintiff claims and alleges in this case. And then it goes over to subsection (c)(2). If your

impairments and related symptoms, such as pain, only affect your ability to perform the nonexertional limitations of work-related activities, the rules in Appendix 2 do not direct

10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 factual conclusions of disabled or not disabled. And then it goes down to subsection (d). When the

limitations and restrictions imposed by your impairments and related symptoms, such as pain, affect your ability to meet both the strength and demands of jobs other than the strength demands, we consider that you have a combination of exertional and nonexertional limitations or restrictions. If your

impairments and related symptoms, such as pain, affect your ability to meet both the strength and demands of the jobs other than the strength demands, we will not directly apply the rules in Appendix 2. And I think it is -- it bears noting that the Eighth Circuit, in Caviness against Massanari, found at 250 F.3d 603, Eighth Circuit, 2001, at page 605 -- the -- in order to -when reflecting on step two and certainly not on step five -but still, you know, this bears some consideration -- that the burden on the plaintiff to indicate or to establish a -- the existence of a severe impairment is not great, and the Supreme Court in Yuckert, in -- I believe it's footnote 12 -ultimately -- and then let's see here -- reflected on Social Security Ruling 85-28, which indicated that an impairment or combination of impairments is found "not severe" and a finding of "not disabled" is made at step two when medical evidence establishes only a slight abnormality or a combination of slight abnormalities which would have no more than a minimal

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11 effect on an individual's ability to work even if individual's age, education, or work experience were specifically considered. If the evidence shows that the person cannot

perform his past or her past relevant work because of the unique -- unique features of that work, the decision maker must conduct a further evaluation of the ability, which the court did not go into or discuss. Let's see. I recognize that and I'll just state

again that at several locations in the -- the -- on page 15 and -- let's see -- on page 16, when reflecting on Dr. Kinder's opinions, in the middle of the -- of the -- of the page, the ALJ says, "However, even findings of only moderate symptoms appear inconsistent with the treatment records which indicate no severe mental impairments lasting 12 months in duration since the alleged onset date." Repeatedly, the Administrative Law Judge attaches the durational period to -- to those findings, and I don't believe the regulations countenance that, and it's also -- he also says, on page 20, the medical treatment notes do not document any medical -- any -- do not document any medical observations by any treating psychiatrist or psychologist of a significant -- of significant abnormalities or deficits with respect to the claimant's mood, affect, thought processes, concentration, attention, pace, persistent social interaction, activities of daily living, speech, psychomotor activity,

12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 focus, contact with reality, eye contact, orientation, demeanor, abilities to cope with stress, abilities to work without decompensation, abilities to understand and follow instructions, judgment, insight, cognitive function or behavior lasting 12 months in duration and despite treatment. Once again, the ALJ attaches the durational -- a durational requirement for that consideration and then goes on, on page 21. At most, the medical treatment records document mental

impairments, once again talking about the existence of mental impairments but not resulting in severe symptoms causing significant limitations of function for 12 consecutive months of duration. Now, I recognize that, on page 22, the ALJ also makes in -- in the midst of all of the record and in the midst of the discussion of the record at the end there, on page 22, says the claimant has no mental restriction, which standing alone I find not to be supported by substantial -- that is to say, to have no mental restriction and failed in her burden to establish otherwise, I -- I -- I believe that that probably reflects upon the 12 months' duration, but I do not believe that that is a reflection of -- of the record that -- that she has absolutely no mental restriction when she found -- when he found that she does have a -- the condition and that when combined with her back problem was severe. The record is -- is replete with repeated references

13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and diagnoses of, going back to 2004, major depression, generalized anxiety depression or disorder, rather, by Dr. Khot in March of 2004, flat affect in 2005. Dr. Nawaz

reflected on her having major depression disorder in -- in March of 2005. Then we come to Dr. Kinder's opinions in -- on

March -- oh, no -- rather, June 15th, 2005, indicating that, in his opinion, she had been suffering from depression for seven years and indicating that the profile pattern indicated significant elevations across several scales which indicates marked distress and severe impairment in functioning and reflected on the fact that the -- the ultimate -- the testing results indicated that they were reliable, that she was reliable, and then going on, in August of 2005, a diagnosis of major depression and anxiety disorder continuing through October of 2005. Getting -- you know, getting into Dr. Toll's analyses in April of 2006 and her findings of major depression disorder, anxiety, generalized anxiety disorder, posttraumatic stress disorder, the rendition of all of that indicates -plus the rest of the record -- indicates that the finding at least as far as the existence of a nonexertional limitation sufficient to require the employment of a vocational expert at the hearing level was well-established, and to my belief and my rendition -- my review of the record, the record is not sufficient to sustain substantial evidence or to indicate or

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14 to show substantial evidence to say in -- what -- in six words that the claimant has no mental restrictions, and for that purpose and on that basis, I'm going to find that the ultimate conclusion of the Administrative Law Judge that the Plaintiff is not disabled is not supported by substantial evidence. I'm going to reverse the finding, and I'm going to remand the case to the Social Security Administration for rehearing and the employment of a vocational expert, and I'll issue a -- a summary, one-page order, documentary order to that effect, and as I stated earlier, I'll order the clerk to secure a transcript of this oral opinion and file it as the Court's opinion in the case. Thank you all. all of this. I appreciate your endurance through

It enables me to, I hope, efficiently resolve Thank you

this issue or this case and get on to the next one. all very much. MR. LLEWELLYN: MR. STEWART: Thank you, Your Honor.

Thank you.

(Proceedings concluded at 11:39 a.m.)

15 CERTIFICATE

I, Gayle D. Madden, Registered Diplomate Reporter and Certified Realtime Reporter, hereby certify that I am a duly appointed Official Court Reporter of the United States District Court for the Eastern District of Missouri. I further certify that the foregoing is a true and accurate transcript of the digital recording produced by the clerk of the proceedings held in the above-entitled case. I further certify that this transcript contains pages 1 through 14 inclusive. Dated at St. Louis, Missouri, this 26th day of February, 2009.

_________________________________ /s/ Gayle D. Madden GAYLE D. MADDEN, CSR, RDR, CRR Official Court Reporter