Higgins v. Social Security Administration

Filing 18

REPORT AND RECOMMENDATIONS : For the reasons set forth above, it is the recommendation of the undersigned that the decision of the Commissioner of Social Security be reversed and remanded under Sentence 4 of 42 U.S.C. § 405(g). Upon remand, the ALJ should ensure that the hypothetical question posed to the VE corresponds to the ultimate RFC determination. To that end, the ALJ may wish to hold a supplemental hearing. The ALJ should also treat Higgins as a person closely approaching advanced a ge. The parties are advised that they have until February 8, 2010, to file written objections to this Report and Recommendation. The failure to file timely written objections may waive the right to appeal issues of fact. re 1 DCM Complaint filed by Ralph D. Higgins Objections to R&R due by 2/8/2010. Signed by Magistrate Judge David D. Noce on 1/22/10. (KKS)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION RALPH D. HIGGINS, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 4:08 CV 1237 ERW DDN

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This action is before the court for judicial review of the final decision of the defendant Commissioner of Social Security denying the application of plaintiff Ralph D. Higgins for disability insurance benefits under Title II, and Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. § 401, et seq. and a recommended disposition under 28 U.S.C. § 636(b). reversed and remanded. I. BACKGROUND The action was For the reasons assigned to the undersigned United States Magistrate Judge for review set forth below, the undersigned recommends that the ALJ's decision be

Plaintiff Ralph D. Higgins was born on January 25, 1957. (Tr. 21.) He is 5'8" tall with a weight that has ranged from 174 pounds to 196 pounds. 178.) (Tr. 162, 226.) He is single, and has one adult child. (Tr. 105, 116.) (Tr. He completed the Tenth Grade, and did not earn a G.E.D. (Tr. 8.)

He last worked as a janitor in December 2005.

On January 30, 2006, Higgins applied for disability insurance benefits and supplemental security income,1 alleging he became disabled

This was not Higgins's first application for benefits. Higgins first applied for benefits on January 4, 2002. That application was denied on February 26, 2002, at an initial stage. Higgins applied for a second time on October 9, 2003. That application was denied on July (continued...)

1

on August 17, 2002, due to a broken back, arm and heel injuries, depression, and dysthymia.2 (Tr. 21-24, 87-94, 116.) He received a After a denied notice of disapproved claims on May 11, 2006. (Tr. 6-20, 26-40.) (Tr. 29.)

hearing on March 19, 2008, the ALJ denied benefits on March 27, 2008. On July 9, 2008, the Appeals Council (Tr. 1-3.) p laintiff's request for review, making the ALJ's decision the final decision of the Commissioner. II.

ADMINISTRATE RECORD

In 1988, Higgins earned about $1,600. In 1989, he had no earnings. In 1990, he earned about $1,800, in 1991, he earned about $6,600, in 1992, he earned about $2,800, and in 1993, he earned about $16,000. 1994, he had no earnings. $20,000 each year. earned about $10,000. In From 1995 to 2001, Higgins earned over

In 2002, he earned about $400, but in 2003, he In 2004 and 2005, he earned about $2,500, and in (Tr. 98.) A work activity report showed

2006, he only earned $150.

Higgins worked as a janitor in 2005, working about fifteen hours a week. He stopped working because of his medical condition. From December 2002 to May 2003, Higgins worked as a laborer for Demien Construction Company. On He worked forty hours a week, but stopped working because of (Tr. 104-10.) 18, 2002, Higgins went to the emergency room, He was given December his disability.

complaining of pain in his neck, and right arm and wrist.

(...continued) 24, 2005, after a hearing by an ALJ. to the district court. (Tr. 29.)
2

1

These denials were not appealed

Dysthymia, sometimes referred to as chronic depression, is a less severe form of depression. With dysthymia, depression symptoms can linger for long periods, but people who suffer from dysthymia are still usually able to adequately function. WebMD, http://www.webmd.com/ depression/guide/chronic-depression-dysthymia (last visited January 19, 2010). -2-

Vicodin and sent home in stable condition.3 Tramadol and Toprol. On September
4

At the time, he was taking Dr. Donald Schnurpfeil,

(Tr. 197-202.) 2003, Higgins saw He had been involved in a car A physical (Tr. 162.)

29,

complaining of chronic back pain. accident in August 2002.

Higgins complained that he was unable to sit

for prolonged periods, and had trouble lifting things. in his back. spine. The doctor diagnosed him with lower back pain.

examination showed Higgins had back spasms and decreased range of motion On March 16, 2004, Albert Hesker reviewed an x-ray of Higgins's The x-ray showed an old, healed deformity at L3, and no recent There were no destructive or erosive changes, but there fractures.5 spine.6

were mild hypertrophic degenerative changes in the thoracic and lumbar Otherwise, the disk spaces were well-maintained, except for (Tr. 155.) In a letter After his mild levoscoliosis, and mild narrowing at L2-3.7

On February 16, 2006, Higgins saw John Emmons, D.O. living with his parents since his first injury in 1988. injury in 1988, Higgins took seven years off of work.

to Higgins's lawyer, David Camp, Dr. Emmons noted that Higgins had been From 1995 to

Vicodin is a combination narcotic and non-narcotic, and is used to relieve moderate to severe pain. WebMD, http://www.webmd.com/drugs (last visited January 20, 2010). Tramadol is used to relieve moderate pain. Toprol is used to treat chest pain (angina), heart failure, and high blood pressure. WebMD, http://www.webmd.com/drugs (last visited January 20, 2010).
5 The human spinal column consists of thirty-three vertebrae. There are seven cervical vertebrae (denoted C1-C7), twelve thoracic vertebrae (denoted T1-T12), five lumbar vertebrae (denoted L1-L5), five sacral vertebrae (denoted S1-S5 and fused together into one bone, the sacrum), and four coccygeal vertebrae (fused together into one bone, the coccyx). The cervical vertebrae form part of the neck, while the lumbar vertebrae form part of the lower back. The sacrum is immediately below the lumbar vertebrae. Stedman's Medical Dictionary, 226, 831, 1376, 1549, 1710, Plate 2 (25th ed., Williams & Wilkins 1990). 4

3

Hypertrophy is the general increase in bulk of a part or organ, not due to tumor formation. Stedman's Medical Dictionary, 746. Sco liosis is lateral curvature of the spine. Dictionary, 1394. -37

6

Stedman's Medical

2003, Higgins did lawn and gardening work, but was also off work for a period of two to three years. 2003. at the time. while seated. clear. tenderness. He resumed working as an ironworker in Higgins smoked a pack a day, and was not taking any medication A physical examination showed he was alert and oriented, There was no sign of discomfort His chest and heart were normal, and his lungs were obese, but there were no masses and no

with normal intellectual functioning. His abdomen was

His back showed tenderness at L2, with mild spasm noted, The thoracic kyphosis and cervical and lumbar An examination of the upper

greater at the right than left. There was mild dextroscoliosis from T1T5, and from T12-L5. lordosi s were within normal limits.8

extremities showed Higgins had normal strength in his left hand and arm, b u t 3/5 grip strength in his right arm, and 2/5 strength in his upper right extremity. Higgins could make a fist in each arm. A review of Dr. his neuromuscular system showed no abnormalities in pain, proprioceptive sensation, or vibratory sensation, except in the right forearm.9 n o r m al. Emmons found Higgins walked with a limp, but otherwise, his gait was He did not drift side to side, and did not reach out for He could heel and toe walk, squat fully, and arise He was able to kneel and arise on both knees support or balance. without assistance. alternately.

(Tr. 178-83.)

Dr. Emmons diagnosed Higgins with a post-fracture of the lumbar spine, and a post-fracture of the right radius and ulna, with permanent reduction in rotation and dysesthesias of the right forearm.10 He also

8 Kyphosis is a deformity of the spine, characterized by extensive f l e x i on. Stedman's Medical Dictionary, 830. Lordosis is an abnormal extension deformity - usually in the form of a backward curvature of the spine. Id., 894.

Proprioceptive means capable of receiving stimuli originating in muscles, tendons, or other internal tissues. Stedman's Medical Dictionary, 1269. The radius is the lateral and shorter of the two bones of the forearm. Stedman's Medical Dictionary, 1310. The ulna is the medial and larger of the two bones of the forearm. Id., 1663. Dysesthesia is an impairment of sensation, short of anesthesia. It also refers to a condition in which disagreeable sensation is produced by ordinary (continued...) -410

9

diagnosed Higgins with decreased grip and upper extremity strength, hypertension, osteoarthritis, major depressive disorder, general anxiety disorder, and insomnia. Based on this diagnosis, Dr. Emmon believed He also believed he could that Higgins could walk at least 200 yards. needing to change positions or rest.

sit for 35 to 45 minutes, and stand for at least 20 minutes before Finally, he believed that Higgins could climb one flight of stairs, though with some difficulty, that he could reach above his head frequently, and that could perform fine motor tasks for 30 minutes. (Tr. 183-84.) A physical On February 22, 2006, Higgins saw Dr. Schnurpfeil, complaining of chronic back pain - though he was not taking any medication. h i s back, but was otherwise normal. chron i c back pain and hypertension. Higgins's back problems. (Tr. 159.) In a e x a m ination showed he had tenderness and decreased range of motion in The doctor diagnosed him with The doctor encouraged Higgins to

quit smoking and lose weight, but noted that exercise was limited by On March 1, 2006, Higgins completed a function report.

typical day, he ate, took his prescribed medication, and then spent most of the time laying down. His impairments affected his ability to sleep, and he had some trouble taking care of himself. cleaning his room. He lived with his mother. (Tr. 130-37.) He used the microwave He went out about once for most of his meals, and his housework was limited to laundry and a day, and would walk. He could walk about a 100 yards, with his cane,

before he needed to rest.

On March 15, 2006, Dr. Emmons completed a medical source statement. In the statement, Dr. Emmons indicated Higgins could sit for four hours, s tand for two hours, and sit for two hours, in an eight-hour workday. He could continuously lift and carry five pounds, occasionally carry ten pounds, and occasionally lift up to twenty-five pounds. left. He had a signific a n t manipulative limitation in his right hand, but not in his He could occasionally stoop and continuously reach over head. Higgins suffered from an old lumbar fracture, osteoarthritis, and right ankle problems, and these impairments produced up to four hours of daily (...continued) stimuli. Id., 476. -510

pain, with reduced range of motion.

Dr. Emmons believed Higgins needed In his

to use a cane, and needed to take breaks every ninety minutes, but did not believe he needed to lay down or take naps during the day. opinion, Higgins should not work full time. The cumulative effect of

the pain and restrictions in Higgins's lumbar spine, right wrist, right forearm, and right ankle, "combined with the effects of his depression and anxiety, would probably make full-time employment an unrealistic goal." (Tr. 185-87.) On March 31, 2006, Dr. Schnurpfeil did not have an opinion on whether Higgins could sit for six hours and stand/walk for two hours in an eight-hour workday. (Tr. 188.) On May 4, 2006, Christine Cruzen, a senior counselor with the state o f f i ce of disability determinations, completed a physical residual functional capacity assessment of Higgins. Cruzen believed that Higgins could occasionally lift and carry ten pounds, frequently lift and carry less than ten pounds, and perform unlimited pushing and pulling. Cruzen also believed Higgins could stand or walk for two hours and sit for six hours in an eight-hour workday. medical record. (Tr. 188-95.) Cruzen based her assessments on the

On May 9, 2006, A. Kresheck completed a psychiatric review of Higgins. Kresheck found Higgins suffered from major depressive disorder and generalized anxiety disorder, but concluded that these impairments were not severe. daily living difficulties in Kresheck also found Higgins had no limitation in his or social functioning, and only and mild pace. maintaining concentration, persistence, activities

Kresheck found no repeated episodes of decompensation.

Kresheck noted

that Higgins denied taking any psychiatric medication, and that he did not have any history of counseling or psychiatric hospitalizations. (Tr. 164-76.) On October 22, 2007, Higgins went to the emergency room, complaining of intense pain, 10/10, in his right forearm. in his right forearm. His abdomen was soft and non-tender. His affect An x-ray

was appropriate. A comprehensive assessment showed edema and tenderness of his forearm revealed healing fractures to the right radial and ulnar

-6-

shafts, but no acute fractures or dislocations. (Tr. 203-05, 260-66.) On October 25, 2007, Higgins went to

He was given Vicodin. the emergency room,

complaining of abdominal pain. His medical history revealed that he had fractured the radius and ulna in his right forearm in 1989, which required plating and an additional surgery in 1991. T o p r o l . 11 He was not employed. At the time, Higgins was taking Ultram, as needed, for his abdominal pain, and A physical examination showed Higgins was well-developed and well-nourished, and in obvious distress from the abdominal pain. His heart rate and rhythm were regular, but his abdomen was mildly distended. calcified gallstone. An ultrasound of his abdomen showed a large, Donna Richardson, M.D., diagnosed him with He was taken to the

cholelithiasis and probable acute cholecystitis.12

operating room, where he underwent gallbladder surgery, without any complications. He was dismissed on October 28, 2007. (Tr. 208-12, 24859.) On October 27, 2007, Higgins completed a disability questionnaire. He noted having a broken right arm, shingles, a broken back, and gallbladder problems. The back pain caused him spasms and constant Higgins wrote "n/a" in the section Higgins pain, and prevented him from standing longer than fifteen minutes and l ifting more than twenty pounds. did not need caretaking. arm. asking him to describe his mental health symptoms or problems. medication every six months.

He saw Dr. Schnurpfeil, who prescribed his He had received physical therapy for his Higgins reported crying spells,

He had been treated by an orthopedist and neurologist, but had not

seen a psychologist or psychiatrist. have fun. abdomen. (Tr. 245-46.) The x-ray revealed a

and feeling depressed about not being able to provide for himself or On October 31, 2007, Vikram Rao reviewed an x-ray of Higgins's small amount of liquid in the

Ultram is used to relieve moderate pain. http://www.webmd.com/drugs (last visited January 20, 2010).
12

11

WebMD,

Cholelithiasis is the presence of concretions in the gallbladder or bile ducts. Stedman's Medical Dictionary, 295. Cholecystitis is inflammation of the gallbladder. Id., 294. -7-

gallbladder, and post-surgical changes associated with gallbladder surgery. (Tr. 213-14.) He was working On November 15, 2007, Higgins saw Dr. Schnurpfeil. earlier.

on losing weight, and had had an episode of shingles a few weeks He was improving after his gallbladder surgery, but still A Dr. needed pain medication, especially so he could sleep at night. shingles rash, but that his lungs and heart were normal.

physical examination showed Higgins's skin was jaundiced, from the Schnurpfeil diagnosed Higgins with hypertension, metabolic syndrome, and recent cholecystitis, and counseled Higgins to continue a healthy diet and to increase his activity according to his tolerance.13 (Tr. 224.) On January 24, 2008, Higgins saw Stanley London, M.D., for an orthopedic evaluation, complaining of pain in his right heel, lower back, and right forearm. Higgins had fractured a couple of his lower He was vertebrae, when he was involved in a car accident in 2002. weakness in his back.

placed in a cast for three months, but he continued to have pain and He had one physiotherapy treatment and took some He fractured his right He He was placed in a boot for about six pain medication, but never had any injections. ankle in 1999 during a fall.

weeks, but continued to have pain and swelling in the heel area. screws to set it. (Tr. 234-35.)

injured his right forearm in 1988 during a fall, and required plates and A physical examination showed Higgins had no clubbing or edema. He walked with a limp, favoring his right leg. He could squat, and heel He was able to A neurological He had some and toe walk with some difficulty, but could not hop. get off and on the table without a lot of difficulty.

ex a mination showed Higgins was markedly restricted for straight leg lifting on the right, but less restricted on the left.

Metabolic syndrome is a cluster of conditions -- increased blood pressure, elevated insulin levels, excess body fat around the waist or abnormal cholesterol levels -- that occur together, increasing the risk of heart disease, stroke, and diabetes. MayoClinic.com, http://www.mayoclinic.com/health/metabolic%20syndrome/DS00522 (last visited January 20, 2010). -8-

13

irregular

hypesthesia

in

the

right

lower

extremity.14

His

ankle

movements were reasonably good. Examination of his right forearm showed full range of motion of the elbow with flexion-extension, but marked restriction on rotation. lower back. fracture, with There was slight tenderness to touch on his pain, a fractured forearm with some (Tr. Dr. London diagnosed Higgins with lower back pain, postradicular

restrictions of motion, and a fractured right heel bone, with residual discomfort, that made walking difficult and necessitated a cane.15 234-36.) O n January 24, 2008, Dr. London completed a range of motion assessment. hand. Higgins could make a fist, fully extend his hand, and had 5/5 grip strength in his left hand, and 4/5 grip strength in his right His upper and lower extremity strength were good, with 5/5 on the (Tr. 237-38.) That same day, Dr. left side, and 4/5 on the right side. Social Services.

London completed a medical report form for the Missouri Department of On the form, Dr. London checked the box indicating Otherwise, that the duration of Higgins's incapacity was permanent. form. (Tr. 239-40.) On January 28, 2008, Jack Tippett, M.D., reviewed x-rays of Higgins's right heel and lumbar spine. The x-rays of the heel showed The x-rays signs of a previous fracture and a moderate size heel spur.

there were no other notations or supporting details included on the

of the lumbar spine showed a healed compression deformity at L1, with 10% loss of height, a healed compression fracture at L3 with 50% loss of height, irregular narrowing at L2-3, and mild angulation laterally at L3. (Tr. 241-42.)

Testimony at the Hearing On March 19, 2008, Higgins testified before the ALJ. He had worked as a laborer, ironworker, and janitor. He stopped working as a janitor

Hypesthesia is diminished sensitivity to stimulation. Medical Dictionary, 747. Radicular pain refers to nerve root pain. Dictionary, 1308. -915

14

Stedman's

See Stedman's Medical

because the continuous bending and lifting had become difficult. 6-9.)

(Tr.

Higgins was involved in a car accident, which fractured vertebrae in his back. He testified that the pain was still present in his lower Dr. Emmons prescribed the back, and that he needed a cane for support.

cane, but Higgins had been using the cane for about a year before the prescription. Higgins had also broken his heel in 1999, and injured his right arm in 1988. The right arm continued to give him pain. (Tr. 9-13.) He was only His back, arm, and heel problems were the main problems.

Higgins tried working part-time as a janitor at his brother's law firm, but was unable to complete an entire four-hour shift. able to work about two hours at a time. t o complete his normal chores around the house. about twice a day during the week to rest. expert (VE). Higgins required a lot of time Tasks that once took He would lay down

him only a few hours, now took him a day or two.

(Tr. 13-16.)

During the hearing, Dr. Jeff Magrowksi testified as a vocational In his first hypothetical, the ALJ had the VE assume that Higgins could lift and carry twenty pounds occasionally and ten pounds frequently, could stand or walk for an unknown16 number of hours, could sit for four hours in an eight-hour work day, could occasionally climb stairs, kneel, and crouch, but might need assistance to walk, and had limited finger manipulation. Under the circumstances, the VE testified However, the VE believed that Higgins could not perform his past work.

Higgins could perform light, unskilled work, such as furniture rental consultant (295.357-018), information clerk (237.367-022), or children's attendant (349.677-018). semi-skilled. The VE testified that the information clerk position was performed as unskilled work, even though it was listed as (Tr. 16-18.) As long as there was a reasonable period (Tr. 18.) In the second hypothetical, the ALJ had the VE assume that Higgins required a sit-stand option. between sitting and standing, the VE testified that Higgins could still perform the three listed jobs.

The exact number of standing or walking hours included in the hypothetical question are not captured by the transcript. (Tr. 17.) - 10 -

16

In the third hypothetical, the ALJ had the VE assume that Higgins could lift and carry ten pounds occasionally, less than ten pounds frequently, could stand or walk for two hours in an eight-hour work week, and sit for six hours. Under the circumstances, the VE testified (Tr. 18-20.) that Higgins could perform sedentary work, such as surveillance system monitor (379.367-010) or callout operator (237.367-014). III. DECISION OF THE ALJ At Step

The ALJ followed the five-step procedure in his decision. 2001, but that his earnings dropped from 2002, onward. worked around three months for a construction company. of substantial gainful activity. (Tr. 26-32.)

One, the ALJ determined that Higgins had worked full-time from 1995 to In 2003, he In 2004 and

2005, he worked for his brother, but his earnings fell below the level At Step Two, the ALJ found Higgins suffered from the residuals of a right heel fracture, a lumbar vertebral fracture, and a right arm fracture, and that these impairments were severe. visits to the doctor. In doing so, the ALJ summarized Higgins's At Step Three, the ALJ concluded (Tr. 32-35.)

that Higgins's impairments did not equal a listed impairment. (Tr. 35.) At Step Four, the ALJ found Higgins was unable to perform his past work, but that he retained the residual functional capacity (RFC) to lift and carry twenty pounds occasionally and ten pounds frequently, to sit, stand, and/or walk for four hours in an eight-hour workday, and that he could occasionally climb stairs, stoop, kneel, crouch, and crawl. Higgins was to avoid repetitive work with fine objects with his He might need a handheld device for walking. (Tr. 35-36.) right hand.

The ALJ found that Higgins's impairments could reasonably be expected to produce the alleged symptoms, but that his statements concerning the intensity, duration, and limiting effects of those symptoms were not entirely credible. (Tr. 36-37.) In doing so, the ALJ discounted the findings of Dr. Emmons and Dr. London. Each doctor only examined Higgins once, and Dr. Emmons examined Higgins at the request of his attorney, while Dr. London examined Higgins after he applied for Medicaid. injured his back, but simply found - 11 The ALJ noted that Higgins had no evidence to support his

allegations of disabling back pain.

The ALJ also discounted Higgins's

complaints that his arm pain was disabling. Higgins had injured his arm in 1988, yet worked for seventeen years after that, nine of which amounted to substantial gainful activity. Finally, the ALJ noted that Higgins had alleged disability due to depression, but that there was no mention of depression or anxiety in treatment notes from Dr. Schnurpfeil or Dr. London. (Tr. 37-38.) Beyond that, the ALJ noted that Higgins had not received continuous treatment for his arm condition. Higgins received pain medicine for his back pain, but there was no evidence he received physical therapy, injections, professional. or other evaluations by orthopedic surgeons or neurosurgeons. There was no evidence Higgins ever saw a mental health The ALJ found Higgins not completely credible, noting

that Higgins told Dr. Emmons that he had been out of work for seven years after his arm injury, when he had really only been completely off of work for two to three years. applied for disability in The ALJ also noted that Higgins had even as he was working at the (Tr. 38.) 2003,

substantial gainful activity level.

At Step-Five, the ALJ cited the testimony of the VE, and concluded that Higgins retained the RFC to perform jobs in the national economy. Accordingly, the ALJ found Higgins was not disabled within the meaning of the Social Security Act. IV. (Tr. 38-40.)

GENERAL LEGAL PRINCIPLES

The court's role on judicial review of the Commissioner's decision i s to determine whether the Commissioner's findings comply with the relevant legal requirements and is supported by substantial evidence in the record as a whole. Cir. 2009). Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th "Substantial evidence is less than a preponderance, but is Id. In determining whether the evidence Id. As long as substantial

enough that a reasonable mind would find it adequate to support the Commissioner's conclusion." is substantial, the court considers evidence that both supports and detracts from the Commissioner's decision. evidence supports the decision, the court may not reverse it merely because substantial evidence exists in the record that would support a - 12 -

contrary outcome or because the court would have decided the case differently. 2002). To be entitled to disability benefits, a claimant must prove he 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 twelve continuous months. 42 U.S.C. §§ 423(a)(1)(D), (d)(1)(A), 1 382c(a)(3)(A); Pate-Fires, 564 F.3d at 942. disability. A five-step regulatory See Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir.

framework is used to determine whether an individual qualifies for 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing the five-step process); Pate-Fires, 564 F.3d at 942. Steps One through Three require the claimant to prove (1) he is not currently engaged in substantial gainful activity, (2) he suffers from a severe impairment, and (3) his disability meets or equals a listed impa i rment. Pate-Fires, 564 F.3d at 942. If the claimant does not Id. Step Four requires the suffer from a listed impairment or its equivalent, the Commissioner's analysis proceeds to Steps Four and Five. past relevant work. Id. Commissioner to consider whether the claimant retains the RFC to perform The claimant bears the burden of demonstrating Id. If the he is no longer able to return to his past relevant work.

Commissioner determines the claimant cannot return to past relevant work, the burden shifts to the Commissioner at Step Five to show the claimant retains the RFC to perform other work. Id. In this case, the Commissioner determined that Higgins could not perform his past work, but that he was able to perform other jobs in the national economy. V. evidence. DISCUSSION

Higgins argues the ALJ's decision is not supported by substantial First, he argues the ALJ's RFC finding was significantly Second, he argues the ALJ different than the RFC that the VE relied on. Dictionary of Occupational Titles (DOT). - 13 -

failed to address the conflicts between the VE's testimony and the Third, he argues that the ALJ

e r r ed

by

incorrectly

characterizing

him

as

a

younger

individual.

Fourth, he argues that there is no evidence that the jobs cited by the VE actually exist. reason for consultant. 17.) Hypothetical Question to VE Higgi n s argues that the ALJ's RFC finding was significantly In different than the RFC that the vocational expert relied on. Fifth, he argues that the ALJ failed to provide any the RFC of Christine Cruzen, the medical rejecting

Sixth, he argues that the ALJ erred by failing to order a

consultative exam to evaluate his allegations of depression. (Docs. 13,

particular, he argues that the ALJ found he could only sit, stand and/or walk for four hours in an eight-hour day, but in the question to the VE, the hypothetical RFC included the ability to sit for four hours and stand and/or walk for another four hours. The Commissioner can rely on the testimony of a VE to satisfy his burden of showing that the claimant can perform other work. Astrue, 526 F.3d 389, 392 (8th Cir. 2008). Robson v. For the VE's testimony to

rise to substantial evidence, the ALJ's hypothetical question must be correctly phrased and must capture the concrete consequences of the claimant's deficiencies. Id. The ALJ's hypothetical question does not have to include all of the claimant's alleged impairments; it need include "only those impairments that the ALJ finds are substantially supported by the record as a whole." 889 (8th Cir. 2006). In this case, the ALJ determined Higgins had the RFC to "lift and/or carry twenty pounds occasionally and ten pounds frequently; and sit, stand and/or walk four hours in an [eight-hour workday]." 35.) (Tr. At the hearing, the ALJ first asked the VE to assume that Higgins Sit for four hours out of Lacroix v. Barnhart, 465 F.3d 881,

could "lift and carry up to 20 lbs occasionally, 10 lbs frequently. Stand or walk for [blank] hours of eight.17 eight." (Tr. 17.) The second hypothetical added a sit-stand option to

Looking to the plaintiff's brief, it appears the ALJ asked the VE to assume Higgins could stand or walk for four hours in an eight-hour day. (Doc. 13 at 9.) - 14 -

17

the first hypothetical.

(Tr. 18.)

In the third hypothetical, the ALJ

asked the VE to assume that Higgins could occasionally lift ten pounds, frequently lift less than ten pounds, "[s]tand or walk for two hours out of eight" and "[s]it for six" hours out of eight. (Tr. 18.) Looking to the text of the transcript from the hearing, the ALJ's ultimate RFC determination does not correspond to any of the three hypothetical questions posed to the VE. The ALJ's ultimate determination contemplated four hours of physical activity in an eighth our work day, while each of the hypothetical questions contemplated e i g h t hours of physical activity in an eight-hour work day. dispari t y requires the court to reverse and remand. This See Owens v.

Astrue, No. 5:06 CV 736, NAM/GHL, 2009 WL 3698418, at *8 (N.D.N.Y. Nov. 3, 2009) ("The RFC findings contained in the decision must match the hypothetical posed to the expert."). the first hypothetical. In addition, the record fails to reveal exactly how many hours of walking or standing were included in This prominent omission, on its own, renders See Emery v. Astrue, Civil Action No. 07the hypothetical deficient.

2482, 2008 WL 5272454, at *3 (E.D. Pa. Dec. 18, 2008) ("Hypotheticals are considered deficient when important factors are omitted or the claimant's limitations are not adequately portrayed."). At Step Five, the ALJ relied on the testimony of the VE to conclude that Higgins had the RFC to perform other work in the national economy. (Tr. 40.) But because the ALJ's hypothetical questions did not correspond to the ALJ's ultimate RFC determination, the VE's testimony does not rise to the level of substantial evidence. ALJ's decision should be reversed and remanded. Conflicts with the DOT Higgins argues the ALJ failed to address the conflicts between the VE's testimony and the DOT, as required by Social Security Ruling 0004p. Because this case should be remanded, and may require new testimony from the VE, this issue is reserved to the ALJ upon remand. Younger Individual - 15 Accordingly, the

Higgins argues that the ALJ erred by incorrectly characterizing him as a younger individual. The ALJ determines a claimant's age at the time of the hearing decision. Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 780 At the time of the decision, Higgins was 51 years old, 20 C.F.R. (6th Cir. 1987).

making him a person closely approaching advanced age, for whom his age might seriously affect his ability to adjust to other work. § 404.1563(d). However, in his decision, the ALJ calculated Higgins's

age from his alleged onset date, making him a younger person, for whom his age would not seriously affect his ability to adjust to other work. (Tr. 39); 20 C.F.R. § 404.1563(c). On remand, the ALJ should treat Higgins as a person closely approaching advanced age. Actual Jobs Higgins argues that there is no evidence that the jobs cited by the VE actually exist. The ALJ may rely on government publications like the DOT to determine that a certain job exists in the national economy. 20 C.F.R. § 404.1566(d)(1). For disability purposes, a job exists in the national economy regardless of whether (1) the work exists in the immediate area in which the claimant lives; (2) a specific job vacancy actually exists; or (3) the claimant would actually be hired for the job. 20 C.F.R. § 404.1566(a); see also Bardabelias v. Sec'y of Health and Human Servs., No. 85 CV 4373, 1986 WL 14618, at *2 (E.D.N.Y. Oct. 31, 1986) ("The Secretary does not have to prove that an occupation actually exists in substantial numbers in the economy."). On remand, the ALJ may rely on the DOT to show certain jobs exist in the national economy. Medical Consultant Higgins argues that the ALJ failed to provide any reason for rejecting the RFC of Christine Cruzen, the functional capacity assessment (PRFCA) form. not a physician, but a senior counselor disability determinations. (Tr. 188.) - 16 medical consultant. (Tr. 189-95.) in the state Cruzen was office of On May 4, 2006, Christine Cruzen completed a physical residual

In her evaluation, Cruzen noted

that Higgins had the ability to stand and/or walk for two hours and sit for six hours in an eight-hour day. Cruzen inserted her typed name Consultant's Signature." (Tr. 190.) in the At the end of the form, entitled "Medical Under block

(Tr. 195.)

The ALJ did not discuss Cruzen's evaluation in his opinion.

t h e regulations, the ALJ must consider the findings of state agency medical consultants, and "must explain in the decision the weight given to the opinions of a State agency medical or psychological consultant or other program physician or psychologist. . . ." 20 C.F.R. § 416.927(f)(2)(i), (ii). However, non-medical sources may not be used 20 C.F.R. § 416.913(a),(d). In fact,

to determine an impairment; non-medical sources may only be used to show t h e severity of an impairment. a non-medical consultant. F.3d 447 (8th Cir. 2007)). source. Consultative Examination Higgins argues the ALJ erred by failing to order a consultative exam to evaluate his allegations of depression. The ALJ is required to order medical examinations and tests only if the available medical records do not provide sufficient medical evidence to determine whether the claimant is disabled. Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994). contains several indications that Higgins disabling mental condition. did not Barrett v. from a In this case, the record suffer it is reversible error for the ALJ to rely on a PRFCA form completed by Malone v. Astrue, No. 4:07 CV 1896 CAS, 2009 Looking to Malone, the ALJ did not commit WL 426459, at *12 (E.D. Mo. Feb. 19, 2009) (citing Dewey v. Astrue, 509 reversible error by failing to discuss the evaluation of a non-medical

In February 2006, an examination showed

Higgins was alert and oriented, with normal intellectual functioning. I n May 2006, Kresheck found Higgins suffered from major depressive disorder and generalized anxiety disorder, but concluded that these i m p a i r ments were not severe. In October 2007, during a visit to the That same month, e m e r g e ncy room, Higgins had an appropriate affect. heal t h symptoms or problems.

Higgins wrote "n/a" in the section asking him to describe his mental In the same questionnaire, Higgins - 17 -

reported having crying spells and feelings of depression, but noted that he had not seen a psychologist or psychiatrist. The record also fails to show that Higgins ever required hospitalization or counseling for his depression and anxiety, or that he ever took any medication for his depression or anxiety. During the hearing before the ALJ, Higgins's concerning Higgins's Taken as a See lawyer did not seek to elicit any testimony and heel problems were his main problems.

depression or anxiety, and Higgins himself testified that his back, arm, (Tr. 9-16.) whole, the record provided sufficient evidence from which the ALJ could determ ine that Higgins's mental impairments were not disabling. Combs v. Astrue, 243 F. App' x 200, 205 (8th Cir. 2007) (unpublished per curiam) (where the record indicated the claimant's depression was not disabling, the ALJ did not err by failing to order a psychiatric examination). VI. RECOMMENDATION

For the reasons set forth above, it is the recommendation of the undersigned that the decision of the Commissioner of Social Security be reversed and remanded under Sentence 4 of 42 U.S.C. § 405(g). the VE corresponds to the ultimate RFC determination. ALJ may wish to hold a supplemental hearing. Higgins as a person closely approaching advanced age. The parties are advised that they have until February 8, 2010, to file written objections to this Report and Recommendation. of fact. The failure to file timely written objections may waive the right to appeal issues Upon remand, the ALJ should ensure that the hypothetical question posed to To that end, the The ALJ should also treat

/S/ David D. Noce UNITED STATES MAGISTRATE JUDGE - 18 -

Signed on January 22, 2010.

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