Caille v. Commissioner of Social Security

Filing 17

OPINION AND ORDER GRANTING 2 Complaint filed by James William Caille; NOTING 16 Motion In Compliance filed by James William Caille. We REVERSE and VACATE the Commissioner of Social Security's determination, and REMAND this case for further proceedings consistent with this decision pursuant to sentence four of § 405(g). Signed by Chief Judge Jose A Fuste on 4/6/2010.(mrj)

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U N IT E D STATES DISTRICT COURT D IS T R IC T OF PUERTO RICO J A M E S WILLIAM CAILLE, C lai m an t, v. C O M M IS S IO N E R OF SOCIAL SECURITY, R es p o n d en t.

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O P I N IO N AND ORDER

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C laim an t, James William Caille, petitions this court under 42 U.S.C. § 405(g) to review the decision of Respondent, Commissioner of Social Security ("Commissioner"), denying the p aym en t of disability benefits to Claimant. (Docket No. 2.) Commissioner opposes the petition (D o ck et No. 13), and Claimant replies (Docket No. 14). I. F a ct u a l and Procedural Synopsis W e derive the following facts from the record in this case ("R.") (Docket No. 8). C laim an t was born on July 22, 1958, and is a veteran of the U.S. Marine Corps who supervised th e repair of military helicopters between 1976 and 1986. (R. at 54-55, 77, 80.) Claimant alleg e s that he has been disabled since January 2, 2006, due to severe pain and side effects from p ain medication. (R. at 54, 62-63.) Before ceasing work, he had been a driver, a director of p lumb i n g , a project manager in electrical work, and an installer of electrical wires. (R. at 65.)

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O n February 8, 2007, Dr. Gregory Smith, Claimant's treating physician at the time, co m p leted a physical residual functional capacity ("RFC") assessment. (R. at 361-65.) Smith n o ted that he had been treating Claimant since July 2005 and that Claimant reportedly suffered frequ ent severe pain in the neck and left arm. Smith stated that Claimant experienced side effects from his pain medication, which made Claimant sedated and fatigued. Smith opined that C lai m an t was unable to perform even "low stress" jobs because of the chronic pain and the in ab ility of Claimant to concentrate due to his pain medication. Claimant received prescriptions, w ith o u t interruption, for morphine tablets for pain relief from October 25, 2006, until April 30, 2 0 0 8 . (R. at 433, 471-89.) Two other consultative physicians have also submitted physical RFC as s es s m en ts in Claimant's case in which they did not assess the pain experienced by Claimant. (R . at 107-14, 347-54.) C laiman t applied for disability benefits on July 17, 2006 (R. at 54), which Commissioner d enied initially (R. at 45) and on reconsideration (R. at 41). On July 26, 2007, an administrative law judge ("ALJ"), Richard E. Ouellette, issued a decision upholding Commissioner's finding o f non-disability. (R. at 369-77.) On November 19, 2007, the Appeals Council remanded the case for the ALJ to fully consider the opinion of Claimant's treating physician and to assess the cr ed i b ility of Claimant's allegations of severe pain. (R. at 384-86.) On July 18, 2008, ALJ

O u ellette held a hearing (the "ALJ Hearing") at which Claimant appeared without counsel v o lu n tarily. (R. at 636-53.) The ALJ questioned Claimant about the extent of his physical ailm en ts and pain. Claimant stated that he engaged in limited daily activity, mostly watching

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telev is io n and reading at home. The ALJ discovered that Claimant had relocated to Puerto Rico to live with a friend because of financial difficulties and that Claimant had discontinued visits to Smith but received medication by mail. T h e ALJ then examined Tennyson Wright, a vocational expert, about Claimant's ability to find work in the national economy. The ALJ asked Wright to [ a]s s u m e an[] individual of the same age, education, work ex p erien ce as the claimant, and assume [an RFC] equal of light to sed en tary work with frequent limitation of performing repetitive task s with the non-dominant left hand and arm and an occasional lim ita tio n of stooping, crouching, kneeling but capable of p erfo rm in g fairly complex tasks in an environment of limited work s tres s and the ability to change position at will. (R . at 650.) Given these assumptions, Wright concluded that Claimant was capable of

p erfo rm in g other jobs in the national economy that fit the description. (R. at 651-52.) On S ep tem b er 2, 2008, the ALJ rendered a second decision upholding Commissioner's finding of n o n -d is ab ility. (R. at 20-32.) The Appeals Council declined to review the ALJ's second d ecisio n on January 23, 2009. (R. at 6.) O n March 30, 2009, Claimant sought review by this court of the ALJ's second decision. (D o ck et No. 2.) Commissioner and Claimant each filed a memorandum of law.1 (Docket N o s . 13; 14.) Noticing that the events concerning this petition took place in Tampa, Florida, on F ebru ary 5, 2010, we ordered Claimant to show cause as to why we should not transfer this case

Because Claimant is pro se, we construe his pleadings more favorably than we would pleadings drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). His status, however, does not insulate him from the strictures of procedural and substantive law. See Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).

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to the Middle District of Florida as the proper venue under 42 U.S.C. § 405(g). (Docket No. 15.) C laiman t responded on February 17. (Docket No. 16.) II. S ta n d a rd of Review A n individual is disabled under the Social Security Act ("the Act") if he is unable to do h is prior work or, "considering his age, education, and work experience, engage in any other k in d of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d). T h e Act provides that "[t]he findings of the Commissioner . . . as to any fact, if supported by su b stan tial evidence, shall be conclusive." § 405(g). Substantial evidence exists "if a reasonable min d , reviewing the evidence in the record as a whole, could accept it as adequate to support [ th e] conclusion." Irlanda-Ortíz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1 9 9 1 ) (internal quotation marks omitted) (quoting Rodríguez v. Sec'y of Health & Human S er v s ., 647 F.2d 218, 222 (1st Cir. 1981)). W e must uphold Commissioner's decision if we determine that substantial evidence su p p o rts the ALJ's findings, even if we would have reached a different conclusion had we rev iew e d the evidence de novo. Lizotte v. Sec'y of Health & Human Servs., 654 F.2d 127, 128 (1st Cir. 1981). In reviewing a denial of benefits, the ALJ must consider all evidence in the re co rd . 20 C.F.R. § 404.1520(a)(3) (2009). Credibility and "[c]onflicts in the evidence are . . . fo r the [ALJ] ­ rather than the courts ­ to resolve." Evangelista v. Sec'y of Health & Human S erv s ., 826 F.2d 136, 141 (1st Cir. 1987). We reverse the ALJ only if we find that he derived

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h is decision "by ignoring evidence, misapplying the law, or judging matters entrusted to ex p er ts ." Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). III. A n a l y s is A. O rd er to Show Cause P u rsu an t to 28 U.S.C. § 1404(a), we ordered Claimant to explain why we should not tran sfer this case to the Middle District of Florida. (Docket No. 15.) In response, Claimant co n firm s in a letter that he has taken up residence in Luquillo, Puerto Rico, with his wife. (D o cke t No. 16.) We note that the postmark on the envelope indicates that Claimant sent the letter from the U.S. Post Office in Luquillo on February 16 (Docket No. 16-2). We are satisfied that the District of Puerto Rico is both a proper venue for this case, see 42 U.S.C. § 405, and a fo ru m that is convenient for the parties, see § 1404(a). B. T h e ALJ's Second Decision C l aim an t focuses his challenge on two aspects of the ALJ's second decision: the ALJ's find ing that Claimant's allegations of pain were not credible and the ALJ's failure to account for C laiman t's impairment due to his pain medication. (Docket No. 14.) P u rsu an t to 20 C.F.R. § 404.1520(a), the ALJ must engage in a five-step test for d isab ility. Under this approach, the ALJ may terminate the inquiry at any stage if he finds that the medical evidence does not meet the appropriate standard. § 404.1520(a)(4). At step five, the A L J must determine whether the claimant retained sufficient RFC to engage in work other than

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h is past relevant work. § 404.1520(a)(4)(v). This step requires a prior assessment of the claim an t's RFC. See § 404.1545 (outlining steps for finding RFC). The existence of pain and th e effect of medication on a claimant's ability to work are both relevant to his RFC. See 20 C .F .R . §§ 404.1529(c) (detailing method to evaluate effect of pain on ability to work), 404.1545 (d etailin g steps to assess RFC), 404.1569a(a), (c) (outlining steps to assess nonexertional limitati o n s, including effect on ability to concentrate). Accordingly, we discuss in turn the A L J 's assessment of Claimant's pain in determining Claimant's RFC and the ALJ's accounting fo r the effects of morphine at step five. 1. C red ib ility of Allegations of Pain

C l aim an t asserts that the ALJ did not properly assess the credibility of Claimant's as s er tio n s of pain.2 (Docket No. 14.) In assessing Claimant's RFC, the ALJ disregarded Smith's o p in io n relating to Claimant's neck and back pain and found that Claimant's allegations of pain w ere not credible. (R. at 25-29.) T h e ALJ may weigh the credibility of a claimant's statements about pain. S.S.R. 96-7p (C u m. Ed. 1996). The ALJ must first find a lack of support in objective medical evidence for the allegations of pain. Id. Then, "giv[ing] specific reasons for the weight given to the in d iv id u al's statements," the ALJ may assess the credibility of the allegations. Id. "The finding o n the credibility of the individual's statements cannot be based on an intangible or intuitive

Claimant appends medical evidence to his memorandum. (See Docket No. 14-2.) We cannot consider this evidence because it was not part of the record that the ALJ could have consulted. See 42 U.S.C. § 405(g).

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n o tio n about an individual's credibility. The reasons . . . must be grounded in the evidence and ar tic u lated in the . . . decision." Id. U n d er the "treating physician rule," Commissioner generally must accord greater weight to the opinions of a claimant's treating sources than other sources because of the treating d o cto rs ' longitudinal perspective on the claimant's condition. 20 C.F.R. § 404.1527(d)(2). If "a treating source's opinion on the issue(s) of the nature and severity of [the claimant's] impairm en t(s) is well-supported by medically acceptable clinical and laboratory diagnostic tec h n iq u es and is not inconsistent with the other substantial evidence in [the] case record, [ C o m mis s io n er] will give it controlling weight." Id. Nevertheless, deference to the treating p h ysician is not absolute: "A treating physician's conclusions regarding total disability may be rejected . . . when . . . contradictory medical advisor evidence appears in the record." Keating v . Sec'y of Health & Human Servs., 848 F.2d 271, 276 (1st Cir. 1988). S m ith opined that Claimant could not work due in part to his pain. (R. at 362.) The ALJ d ecid ed not to accept this assessment, however, because of (1) the fact that Claimant had not v is ited Smith since December 2007; (2) Smith's lack of supporting psychiatric evidence and ex p er tis e in the field of mental health; and (3) deviations in Smith's opinion of Claimant's p h ysical abilities from the reports of other doctors. (R. at 26.) W e find fault with these reasons. First, even if Claimant had not visited Smith since D ecem b e r 2007, there is no rational basis for disregarding Smith's opinion regarding Claimant's co n d itio n during the course of their doctor-patient relationship. Second, although Smith is not

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a mental health expert, he opined as to Claimant's experience of pain and impairment from the effects of morphine, not his mental health. (R. at 362.) It is true that disability under the Act is a legal determination that is reserved to the ALJ and that medical experts are not qualified to re n d er this ultimate legal conclusion. See Frank v. Barnhart, 326 F.3d 618, 620 (5th Cir. 2003). A lth o u g h the ALJ could disregard Smith's assessment of Claimant's ability to work, there is no b as is for ignoring Smith's observations as to Claimant's experience of pain. Third, even if C l aim an t 's capacity for physical exertion could be taken as a proxy for the lack of pain, there is n o evidence directly contradicting Smith's opinion of Claimant's incapacitation from pain. The o th er two RFC assessments cited by the ALJ express no opinion on Claimant's experience of p ain . (R. at 26-28, 107-14, 347-54.) The ALJ's credibility determination is, therefore,

u n d er m in ed by his disregard of evidence offered by Smith, Claimant's treating physician. In view of the ALJ's failure to heed Claimant's treating source, and the resulting flawed in q u i ry into the credibility of Claimant's allegations of pain, we find that the ALJ's d eterm in atio n of Claimant's RFC is not supported by substantial evidence. See Nguyen, 172 F .3 d at 35; S.S.R. 96-7p. An accurate assessment of Claimant's experience of pain is crucial to h i s RFC. See 20 C.F.R. §§ 404.1529(c)(1), 404.1545(3). We, therefore, must reverse the ALJ's fin d in g so that Commissioner may reassess Claimant's credibility with respect to pain. 2. Im p a irm en t from Morphine

C laiman t contends that the ALJ ignored medical evidence of Claimant's impairment due to his intake of morphine to control pain. (Docket No. 14.) The ALJ did not account for the

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effects of morphine in his assessment of Claimant's RFC; he relied on the testimony of Wright to find at step five that Claimant was capable of work and was, thus, not disabled. (R. at 25-31.) If a claimant's RFC is significantly eroded by non-exertional limitations like decreased con cen tratio n from medication, see § 404.1569a(c), the ALJ may find at step five that the cla im an t is incapable of work and is, thus, disabled, see § 404.1520(a)(4)(v). In determining a claiman t's ability to work, id., Commissioner may also rely on the testimony of vocational exp erts, usually offered in response to hypothetical medical conditions posed by the ALJ at a h earin g . Arocho v. Sec'y of Health & Human Servs., 670 F.2d 374, 375 (1st Cir. 1982). "But in order for a vocational expert's [opinion] to be relevant, the inputs into that hypothetical must co rr es p o n d to conclusions that are supported by the outputs from the medical authorities." Id. W h ere the vocational expert omits a significant functional limitation from his assumptions about th e claimant's health, the ALJ may not rely on this expert's opinion. Rose v. Shalala, 34 F.3d 1 3 , 19 (1st Cir. 1994). S mith noted that Claimant experienced side effects from taking morphine, including the in ab ility to concentrate. (R. at 362.) Claimant was prescribed morphine tablets from October 25, 2 0 0 6 , until at least April 30, 2008, the last date of the medical record submitted for this case. (R . at 471-89.) In assessing Claimant's RFC, the ALJ did not include Claimant's reduced ability to concentrate due to pain medication (R. at 25-29), but stated that he accounted for the " mo rp h in e side effects in the form of drowsiness" in his hypothetical to Wright (R. at 28). An examinatio n of the transcript from the ALJ Hearing, however, belies this assertion. (R. at 650-

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5 3 .) The ALJ did not pose Claimant's inability to concentrate to the vocational expert; instead, th e ALJ focused on Claimant's limited range of motion with his limbs and low tolerance to stres s. (R. at 650.) Because the ALJ's hypothetical did not accurately reflect Claimant's medical co n d itio n , he could not rely on Wright's conclusions at step five of the inquiry. A s the ALJ failed to account for the effects of morphine in assessing Claimant's RFC and o m itted this impairment in his hypothetical to Wright, we find that the ALJ's determination r ela t i n g to Claimant's non-disability from October 25, 2006, until September 2, 2008, lacks s u p p o rt in substantial evidence. See 42 U.S.C. § 405(g). Because the ALJ's assessment of C laiman t's RFC is riddled with inaccuracies with respect to both neck and back pain and side effec ts from medication, we reverse in toto Commissioner's determination in this case. See id. IV . C o n clu s io n In view of the foregoing, we hereby GRANT Claimant's petition (Docket No. 2). We R E V E R S E and VACATE Commissioner's determination and REMAND this case for further p ro ceed in g s consistent with this decision pursuant to sentence four of § 405(g). We also NOTE C laim an t's motion in compliance (Docket No. 16). I T IS SO ORDERED. S an Juan, Puerto Rico, this 6 th day of April, 2010. s / J o s é Antonio Fusté J O S E ANTONIO FUSTE C h i ef U.S. District Judge