Luster v. Astrue

Filing 27

REPORT AND RECOMMENDATION recommending Commissioner's decision be reversed and the cause be remanded for further proceedings. Objections to R&R due by 11/20/2008. Signed by Magistrate Judge William M Catoe on 10/31/08. (ladd, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION

M a r y E. Luster, Plaintiff, vs. M ic h a e l J. Astrue, C o m m is s io n e r of Social Security, Defendant.

) ) ) ) ) ) ) ) ) ) )

Civil Action No. 6:07-3344-GRA-W M C REPORT OF MAGISTRATE JUDGE

T h is case is before the court for a report and recommendation pursuant to Local R u le 73.02(B)(2)(a), D.S.C., concerning the disposition of Social Security cases in this D is tr ic t, and Title 28, United States Code, Section 636(b)(1)(B).1 T h e plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3) of th e Social Security Act, as amended (42 U.S.C. 405(g) and 1383(c)(3)), to obtain judicial re v ie w of a final decision of the Commissioner of Social Security denying her claims for d is a b ility insurance benefits and supplemental security income benefits under Titles II and X V I of the Social Security Act.

AD M IN IS T R AT IV E PROCEEDINGS T h e plaintiff filed applications for disability insurance benefits (DIB) and s u p p le m e n ta l security income (SSI) benefits on September 20, 2004, respectively, alleging th a t she became unable to work on February 21, 2004.2 The applications were denied initially
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A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge. On February 2, 2006, while these applications were pending, the plaintiff filed subsequent applications for DIB and SSI. These applications were denied initially and on reconsideration. They are considered duplicate claims and were consolidated with the prior applications for a consolidated decision.
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a n d on reconsideration by the Social Security Administration. On May 18, 2005, the plaintiff re q u e s te d a hearing. The administrative law judge (ALJ), before whom the plaintiff, her a tto rn e y, her daughter, and a vocational expert appeared on November 4, 2005, considered th e case de novo, and on January 6, 2006, found that the plaintiff was not under a disability a s defined in the Social Security Act, as amended. After receiving new and material

e v id e n c e , the Appeals Council remanded the case to the ALJ for further proceedings on July 1 8 , 2006. A supplemental hearing was held on January 17, 2007, at which the plaintiff, her a tto rn e y, and a vocational expert appeared. On April 24, 2007, the ALJ again denied b e n e fits . The ALJ's finding became the final decision of the Commissioner of Social Security w h e n it was approved by the Appeals Council on August 14, 2007. The plaintiff then filed this a c tio n for judicial review. In making his determination that the plaintiff is not entitled to benefits, the C o m m is s io n e r has adopted the following findings of the administrative law judge: (1 ) T h e claimant meets the insured status requirements of th e Social Security Act through December 31, 2008. (2 ) T h e claimant has not engaged in substantial gainful a c tiv ity at any time relevant to this decision (20 CFR 4 0 4 .1 5 2 0 (b ), 404.1571 et seq., 416.920(b) and 416.971 et seq.) (3) T h e claimant has the following severe impairments: a h is to ry of cervical and lumbar strain, degenerative changes in h e r lumbar spine, arthritis in her right knee and depression (20 C F R 404.1520(c) and 416.920(c)). (4 ) Th e claimant does not have an impairment or combination o f impairments that meets or medically equals one of the listed im p a irm e n ts in 20 CFR Part 404, Subpart P, Appendix 1 (20 C F R 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 4 1 6 .9 2 6 ) . (5 ) A fte r careful consideration of the entire record, I find that th e claimant has the residual functional capacity to perform light w o rk with restrictions that require no more than occasional s to o p in g , kneeling, crouching or crawling; no balancing, no c lim b in g of ladders, ropes or scaffolds; and, due to possible

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m e d ic a tio n side-effects, avoidance of hazards such as u n p ro te c te d heights and dangerous machinery. She can p e rf o rm simple work in a low stress environment that does no[t] re q u ire any ongoing interaction with the public. (6) T h e claimant is unable to perform any past relevant work ( 2 0 CFR 404.1565 and 416.965). (7 ) T h e claimant was born on December 28, 1954, and was 4 9 years old on the alleged disability onset date, which is defined a s a "younger" individual. She is now "closely approaching a d v a n c e d age" at 52 years old (20 CFR 404.1563 and 416.963). (8) T h e claimant has a limited (11 th grade) education and is a b le to communicate in English (20 CFR 404.1564 and 4 1 6 .9 6 4 ) . (9 ) T h e claimant acquired skills from her past work, but those s k ills are not transferable to other work within her residual f u n c tio n a l capacity (20 CFR 404.1568 and 416.968). ( 1 0 ) C o n s id e r in g the claimant's age, education, work e x p e rie n ce , and residual functional capacity, there are jobs that e x is t in significant numbers in the national economy that the c la i m a n t can perform (20 CFR 404.1560(c), 404.1566, 4 1 6 .9 6 0 ( c ) , and 416.966). (1 1 ) T h e claimant has not been under a "disability," as defined in the Social Security Act, from February 21, 2004, through the d a te of this decision (20 CFR 404.1520(g) and 416.920(g)). T h e only issues before the court are whether proper legal standards were a p p lie d and whether the final decision of the Commissioner is supported by substantial e v id e n c e .

AP P L IC AB L E LAW T h e Social Security Act provides that disability benefits shall be available to th o se persons insured for benefits, who are not of retirement age, who properly apply, and w h o are under a "disability." § 4 2 3 (d ) (1 ) (A ) as: 42 U.S.C. §423(a). "Disability" is defined in 42 U.S.C.

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th e inability to engage in any substantial gainful activity by re a so n of any medically determinable physical or mental im p a irm e n t which can be expected to result in death or which h a s lasted or can be expected to last for at least 12 consecutive m o n th s . T o facilitate a uniform and efficient processing of disability claims, the Social S e c u r ity Act has by regulation reduced the statutory definition of "disability" to a series of five s e q u e n tia l questions. An examiner must consider whether the claimant (1) is engaged in s u b s ta n tia l gainful activity, (2) has a severe impairment, (3) has an impairment which equals a n illness contained in the Social Security Administration's Official Listings of Impairments fo u n d at 20 C.F.R. Part 4, Subpart P, App. 1, (4) has an impairment which prevents past re le v a n t work, and (5) has an impairment which prevents him from doing substantial gainful e m p lo ym e n t. 20 C.F.R. §404.1520. If an individual is found not disabled at any step, further in q u iry is unnecessary. 20 C.F.R. §404.1503(a). Hall v. Harris, 658 F.2d 260 (4 th Cir. 1981). A plaintiff is not disabled within the meaning of the Act if he can return to past re le v a n t work as it is customarily performed in the economy or as the claimant actually p e rf o rm e d the work. SSR 82­62. The plaintiff bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. §423(d)(5). He must make a prima facie s h o w in g of disability by showing he is unable to return to his past relevant work. Grant v. S ch w e ik e r, 699 F.2d 189, 191 (4 th Cir. 1983). O n c e an individual has established an inability to return to his past relevant w o rk , the burden is on the Commissioner to come forward with evidence that the plaintiff can p e rfo rm alternative work and that such work exists in the regional economy. The

C o m m is s io n e r may carry the burden of demonstrating the existence of jobs available in the n a tio n a l economy which the plaintiff can perform despite the existence of impairments which p re v e n t the return to past relevant work by obtaining testimony from a vocational expert. Id.

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T h e scope of judicial review by the federal courts in disability cases is narrowly ta ilo re d to determine whether the findings of the Commissioner are supported by substantial e v id e n c e and whether the correct law was applied. Richardson v. Perales, 402 U.S. 389 (1 9 7 1 ); Hays v. Sullivan, 907 F.2d 1453, 1456 (4 th Cir. 1990). Consequently, the Act p re c lu d e s a de novo review of the evidence and requires the court to uphold the C o m m is s io n e r's decision as long as it is supported by substantial evidence. See Pyles v. B o w e n , 849 F.2d 846, 848 (4 th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4 th C ir. 1986)). The phrase "supported by substantial evidence" is defined as : e v id e n c e which a reasoning mind would accept as sufficient to s u p p o r t a particular conclusion. It consists of more than a mere s c in tilla of evidence but may be somewhat less than a p r e p o n d e ra n c e . If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is "substantial e v id e n c e ." T h u s , it is the duty of this court to give careful scrutiny to the whole record to a s s u re that there is a sound foundation for the Commissioner's findings, and that her c o n c lu s io n is rational. Thomas v. Celebrezze, 331 F.2d 541, 543 (4 th Cir. 1964). If there is s u b s ta n tia l evidence to support the decision of the Commissioner, that decision must be a ff irm e d . Blalock v. Richardson, 483 F.2d 773, 775 (4 th Cir. 1972).

E V ID E N C E PRESENTED T h e plaintiff completed part of the 11th grade (Tr. 93) and worked in the past a s a home health aide, personal care aide, and textile spinner (Tr. 61, 427).3 She alleged th a t she became disabled on February 21, 2004, when she was 48 years old (Tr. 48, 368),

The vocational expert at the first hearing testified that the plaintiff's past work as all semi-skilled and medium in exertion as generally performed, and possibly heavy as the plaintiff performed them (Tr. 565-66).

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d u e to multiple physical and mental impairments (Tr. 71, 94, 416, 451, 466, 488).4 The p la in tif f was 52 years old at the time of the ALJ's post-remand decision (Tr. 48). T h e record reveals that prior to the alleged disability onset date, the plaintiff s o u g h t treatment in August 2003 for pain and stiffness in her neck and back after she tried to lift a patient at work. Dr. W illia m K. Manning, an orthopedist, evaluated her on

N o v e m b e r 10, 2003, and diagnosed cervical and lumbar strain, plus pre-existing d e g e n e ra tiv e arthritis and degenerative disc disease in the cervical spine. Dr. Manning lim ite d her lifting to 40 pounds and recommended physical therapy (Tr. 134-35). The same m o n th , Dr. Vincent S. Toussaint noted that the plaintiff should only engage in "light work" (Tr. 1 7 9 ). A t a follow-up visit on January 23, 2004, Dr. Manning noted that the plaintiff was " v e r y difficult[] to examine" and overreacted to any stimulation (Tr. 133). O n February 13, 2004 (eight days before the alleged disability onset), the p la in tiff reported that her neck was better and had full range of motion in her neck and s h o u ld e rs , with normal reflexes and no weakness. As to her lower back, she had moderate m u s c le spasms without sensory or reflex deficits, and straight leg-raise testing was normal. D r . Manning noted that she "could still return to a job lifting up to 40 pounds" (Tr. 131). O n February 23, 2004 (two days after the alleged disability onset), the plaintiff to ld Dr. Manning that her neck was significantly better, but that she had marked back pain. S h e walked without a limp and had no weakness in her lower extremities, but had moderate lu m b a r muscle spasms. Straight leg-raise testing produced discomfort on the right at 60 d e g re e s, but the plaintiff had normal reflexes and sensation. Dr. Manning noted that she was "v e ry difficult to evaluate," and that she would "come one visit with pain and spasm in the

The plaintiff alleged problems with her back, neck, right knee, right shoulder and right elbow, as well as high blood pressure, sinusitis, allergies, vertigo, an inner ear disorder, migraine headaches, depression and anxiety (Tr. 71, 94, 416, 451, 466, 488).

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n e ck and the next visit with pain and spasm in the low back." An MRI of the plaintiff's lumbar s p in e taken on March 9 th was "essentially unremarkable for [Plaintiff's] age" and showed m in im a l disc bulges at L3-4 and L4-5, with mild degenerative changes. Two weeks later, on M a rc h 25 th, Dr. Manning noted that the plaintiff "could still work at a job lifting up to 40 p o u n d s " (Tr. 126-29). O n May 27, 2004, Dr. Manning determined that the plaintiff had a five percent w h o le person impairment (Tr. 127). O n July 13, 2004, the plaintiff presented to Dr. Rebecca E. Holdren, a pain m a n a g e m e n t specialist, for a workers compensation consultation. The plaintiff complained o f neck and back pain, occasional headaches, and cramping in her calves when she walked. O n examination, she was alert and oriented, followed complex commands, and was slightly d is tre s s e d and anxious. She had normal symmetric deep tendon reflexes, no gross muscle w a s tin g , full 5/5 motor strength, and tenderness over her back. Dr. Holdren diagnosed c e rv ic a l and lumbar strain with preexisting degenerative disc disease, prescribed pain m e d ic a tio n s and an electrical stimulator, and stated, "I agree with moderate lifting [up to] 40 lb s . as tolerated" (Tr. 200-02). O n September 14, 2004, the plaintiff sought emergency care for her right knee a f te r a motor vehicle accident (Tr. 149-55). X-rays were negative (Tr. 150). She saw Dr. T o u s s a in t several times over the next two months and was treated for right wrist, elbow, arm, s h o u ld e r , knee and neck pain (Tr. 172-77). He noted that her symptoms were improving (Tr. 1 7 3 -74 ). O n September 20, 2004, the plaintiff saw Dr. Holdren's colleague, pain m a n a g e m e n t specialist Dr. Navneet Gupta, to follow-up on a recent left ankle sprain. She c o m p la in e d of chronic generalized pain. On examination, her gait was unremarkable and she w a lk e d on her heels and toes, squatted, and performed sit-to-stand transfers without d is c o m f o r t. She had no focal neurologic deficits and no lumbar trigger points. The plaintiff

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re q u e s te d a "written excuse from work," but Dr. Gupta ordered a functional capacity e v a lu a tio n instead (Tr. 196-97). T h e plaintiff returned to Dr. Gupta on October 21, 2004, and said she "hurt[] all o v e r," with a pain rating of eight on a scale of one to 10. Dr. Gupta noted that she had f in is h e d her Lortab prescription three days early and exhibited significant pain behaviors (s u c h as walking with a very slow cadence and a stiff legged gait, and keeping her upper e x tre m itie s stiff). He also noted discrepancies during the examination with regard to her a b ility to abduct and flex her shoulders. Dr. Gupta felt that the plaintiff's pain was

"s ig n ific a n tly influenced by psychological factors," and advised her to "return to work with a r e s tr ic tio n of no lifting above 40 lbs. until next [follow-up] visit." He observed that the plaintiff b e ca m e angry when he suggested that she return to work, and that she wished to see a n o th e r physician (Tr. 194-95). O n November 10, 2004, the plaintiff presented to orthopedist Dr. Daniel I. C o rd a s for an independent medical evaluation. She said that her neck pain was mild c o m p a r e d to her lower back pain and reported decreased sensation in her left leg. Dr. C o rd a s diagnosed chronic lower back pain with some neurologic symptoms but no neurologic im p in g e m e n t. He assessed an 11 percent spine impairment and an eight percent whole p e rs o n impairment. He also noted that the plaintiff had significant depression and should see a mental health professional. Regarding her work capacity, he concluded that she was "most s u ite d for light physical work . . . with occasional force exertion of up to 20 pounds and f re q u e n t force exertion of only up to 10 pounds" (Tr. 248-50). O n November 16, 2004, Dr. Cordas completed a "Medical Questionnaire" in w h ic h he repeated the functional limitations he assessed on November 10 (Tr. 313). O n November 18, 2004, the plaintiff rated her pain as nine on a scale of one to 10, and she reported burning in her feet and numbness in her left leg. Dr. Gupta noted that fro m a psychological standpoint, the plaintiff "report[ed] no issues with simple activities of

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d a ily living and mobility."

He continued the 40-pound lifting restriction and thought a

f u n c tio n a l capacity assessment would be helpful (Tr. 193). O n November 22, 2004, the plaintiff, at the request of her attorney, presented to Randel R. Jones, Ph.D., for a consultative psychological evaluation. She complained to D r . Jones of emotional turmoil, poor sleep and an irritable mood, alleging that her former e m p lo ye r had turned her clients against her and taken them away from her. The plaintiff said th a t she took care of her family and home, enjoyed arranging flowers and cooking, and w a tch e d television. Dr. Jones' evaluation revealed that her basic motor skills were within n o rm a l limits. The plaintiff had no difficulty comprehending or following verbal instruction or m a in ta in in g attention or concentration, and her thought processes were logical and coherent. S h e maintained impulse control and had an appropriate social manner. Objective testing s h o w e d impaired intellectual functioning with IQ scores ranging from 63 to 67, low average v e rb a l skills, borderline fund of general information, average verbal reasoning, and low a v e r a g e ability to maintain attention and concentration. The plaintiff manifested signs of d e p re s s io n and anxiety and showed an "unusual degree of concern about her physical wellb e in g and general health." Dr. Jones diagnosed major depressive disorder (single episode) a n d generalized anxiety disorder, which compromised her basic problem-solving skills. He fo u n d she would have low tolerance for stress and would benefit from psychiatric and p s yc h o lo g ic a l treatment (Tr. 138-42). In an accompanying "Medical Questionnaire" form, Dr. J o n e s opined that the plaintiff's pain would affect her ability to maintain concentration, p e rs is te n ce and pace; interact with others; and complete a normal workday or week without p s yc h o l o g i ca l symptom interruption; but would not affect her ability to do simple tasks, d e ta ile d tasks or complex tasks (Tr. 143). O n December 1, 2004, the plaintiff fell and sprained her right knee. At the e m e r g e n c y room, she walked with a "minimal" limp (Tr. 148).

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O n January 18, 2005, Dr. Jones wrote a letter stating that the plaintiff had a "cla ss 3" moderate impairment from mental disorders, which suggested "significant limitations in her ability to engage in gainful activities" (Tr. 315). T h e plaintiff returned to Dr. Cordas on February 15, 2005, for treatment of her r ig h t shoulder and right knee. Dr. Cordas noted that she had a positive response on "every s in g le subjective test" on examination, and he thought she had a chronic pain disorder. He s u g g e s te d conservative treatment (Tr. 245). O n March 8, 2005, the plaintiff saw Dr. George R. Bruce for an independent m e d ic a l evaluation regarding her employment capability. The plaintiff said she could not walk fo r prolonged periods, stand, bend or lift. She walked with a limp and had limited range of m o tio n in her neck and back, full 5/5 motor strength in all extremities, normal reflexes, and s e n sa tio n , and no signs of atrophy. Dr. Bruce thought the plaintiff's main problem was her m e n ta l status and depression; he noted her low IQ, but also noted that she attended high s c h o o l and worked in the past. He felt she was "disabled from her usual occupation," and th a t it was questionable whether she could be retrained (Tr. 204-06). Dr. Bruce completed a "Clinical Assessment of Pain" checklist form in which he indicated that the plaintiff's pain w o u ld distract her from adequate performance of daily activities or work, that greatly in c re a se d pain was likely to occur, and that significant side-effects could limit her e f fe c tiv e n e s s at work and her ability to drive (Tr. 207-09). O n March 16, 2005, the plaintiff returned to Dr. Cordas and said her knee was b o th e rin g her more than her shoulder, but that she had some improvement with physical th e ra p y. She had good range of motion of the right knee and right shoulder, no instability in th e knee, and signs of right shoulder impingement (Tr. 243). O n April 25, 2005, State agency psychologist Xanthia P. Harkness, Ph.D., re v ie w e d the plaintiff's records and completed a "Psychiatric Review Technique" form and a "M e n ta l Residual Functional Capacity Assessment" form. Dr. Harkness noted that despite

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th e low IQ scores, the plaintiff had an 11th grade education, no history of special education, a n d a long work history that indicated "at least" borderline intellectual functioning and did not d e m o n s tra te mental retardation; Dr. Harkness believed that depression and anxiety may have a rtific ia lly lowered her IQ scores. She found that the plaintiff's affective, anxiety, and

c o g n itiv e disorders produced mild restriction of activities of daily living and moderate d iffic u ltie s in maintaining social functioning, concentration, persistence or pace. As to specific w o rk -r e la te d mental activities, Dr. Harkness found the plaintiff had moderately limited ability to handle detailed instructions, maintain extended attention and concentration, interact a p p ro p ria te ly with the general public, and respond appropriately to supervisors. However, she fo u n d that the plaintiff was not significantly limited in any other area, including the ability to u n d e rs ta n d , remember, and carry out short, simple instructions; perform activities within a s c h e d u le ; sustain an ordinary routine; complete a normal day or week without psychological s ym p to m interruptions; get along with coworkers; maintain socially appropriate behavior; r e s p o n d appropriately to routine changes; and be aware of hazards (Tr. 255-73). O n April 27, 2005, Dr. Cordas noted that the plaintiff's right shoulder and right k n e e were "feeling much better," the knee was completely asymptomatic, and there was only o c c a s io n a l achiness in the shoulder. The plaintiff had full range of motion and all other s h o u ld e r signs were normal. Dr. Cordas released her from orthopedic care (Tr. 242). O n April 28, 2005, State agency physician Dr. Frank K. Ferrell reviewed the p la in tif f's records and determined that she had the physical residual functional capacity to lift 5 0 pounds occasionally and 25 pounds frequently; stand/walk and sit about six hours each in an eight-hour workday; occasionally crouch; and needed to avoid moderate exposure to h a z a r d s (Tr. 274-81). T h e plaintiff returned to Dr. Cordas on June 10, 2005, and reported ongoing rig h t shoulder and knee pain. Dr. Cordas assessed right knee bursitis and right shoulder

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te n d o n itis , and provided pain medication, muscle relaxants, and an electrical stimulation unit ( T r. 309). O n July 7, 2005, Dr. Jones wrote a letter stating that at his evaluation in N o v e m b e r 2004, the plaintiff's low intelligence test scores "did not indicate the presence of m e n ta l retardation," were secondary to her depression, and were considered to be temporary. H e noted that her educational and work history also did not support a primary diagnosis of m e n ta l retardation, and that the primary difficulty noted on examination was her depression, w h ic h was interfering with her problem-solving abilities (Tr. 314). T h e plaintiff returned to Dr. Cordas on August 26, 2005, for right shoulder tre a tm e n t. She stated that a trigger point injection to the scapula helped "quite a bit," but that s h e still had right shoulder and knee pain. She had tenderness on examination, but no other s ig n ific a n t findings. Dr. Cordas diagnosed right shoulder posterior muscle spasm and right k n e e bursitis and tendonitis. He provided another injection to the right shoulder and, per the p la in tiff's request, released her again from orthopedic care. He assessed a three percent r ig h t upper extremity impairment and a four percent right lower extremity impairment (Tr. 2 9 0 ). O n October 21, 2005, the plaintiff underwent a functional capacity evaluation b y physical therapist Vera L. W illia m s . Ms. W illia m s summarized the results as follows: T h e evaluee demonstrated increased difficulty with especially w ith [sic] any task requiring her to stand for long periods of time. S h e demonstrated the ability to stand x15 minutes vs. 1 hour for s ittin g . Evaluee shifted positions continuously and kept rubbing rig h t shoulder and neck with complaints of spasming and c r a m p in g . She demonstrated activities with guarded and stiff p o s tu r e , especially with lifting or carrying 10 lbs. during activities. In reference to over all ROM [range of motion] and Strength, th e re was some inconsistency comparing AROM [active range o f motion] vs. PROM [passive range of motion] observing left a n d right shoulders. Evaluee appeared to demonstrate an u n d e r d e te rm in e d effort with overall mobility and strength as n o te d with PROM results. Overall level according to evaluation is Sedentary. In reference to overall PDC [physical demand

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c h a ra c te ris tic s ] level for activities, the level was noted as O c c a s io n a l. ( T r. 333). O n December 12, 2005, Dr. Cordas completed four different assessments c o n ce rn in g the plaintiff's functional limitations. First, he completed a "Fibromyalgia Residual F u n c tio n a l Capacity Questionnaire" (Tr. 336-40), in which he did not state whether the plaintiff m e t the criteria for fibromyalgia. He listed her symptoms as multiple tender points, chronic fa tig u e , and muscle weakness, and noted that her pain would frequently interfere with the a tte n tio n and concentration needed to perform simple work tasks. He noted that she was c a p a b le of low stress jobs, and that her medications might cause dizziness and difficulty c o n ce n tra tin g . In Dr. Cordas' opinion, the plaintiff could walk two to three blocks at a time, s it one hour at a time for a total of two hours, and stand one hour at a time for a total of less th a n two hours in an eight-hour workday. He also stated that she would need to change p o sitio n s at will and take four or five unscheduled breaks per day. He further found the p la in tiff could lift 10 pounds occasionally; rarely twist, climb, and hold her head in a static p o s itio n ; and never stoop, crouch, look down, or turn her head to the right or left. He also a s s e s s e d restrictions on handling, fine manipulation, and reaching, and said that the plaintiff w o u ld miss four days of work per month. He stated that the earliest beginning date for these lim ita tio n s was August 22, 2003 5 (Tr. 336-40).

There has been some confusion about the significance of the August 22, 2003 date, as it appears right next to Dr. Cordas' signature at the end of the document. The Appeals Council stated in its order of remand that the form was completed on that date (Tr. 397), and the ALJ stated the same thing in his post-remand decision (Tr. 25). However, it is doubtful that August 22, 2003, could be the date the form was completed. Rather, August 22, 2003, was the date the plaintiff first injured her back at work when lifting a patient (Tr. 135). Dr. Cordas did not begin seeing the plaintiff until November 10, 2004 (Tr. 248-50). Thus, when looking at the opinion, it appears that he wrote "August 22, 2003" in response to the question immediately above the signature line, which asked, "W hat was the earliest date the description of symptoms and limitations on this questionnaire applies?"

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S e co n d , Dr. Cordas completed a "Medical Opinion Regarding Physical Capacity to W o r k " form, in which he found that the plaintiff was limited to sedentary work (Tr. 341). T h ird , Dr. Cordas completed a "Clinical Assessment of Pain" form, in which he fo u n d that the plaintiff's pain would be distracting at work, greatly increased pain was likely to occur, and significant side-effects could be expected to limit her effectiveness, but that the p a in and side effects would not produce limitations to such a degree as to create serious p r o b le m s in performing her previous work activities (Tr. 342-43). F o u rth , Dr. Cordas completed a "Medical Opinion re: Ability to Do W o rk-R e la te d A ctiv itie s (Physical)" form, in which he found that the plaintiff could lift 10 pounds o c c a s io n a lly; stand 45 minutes at a time (less than two hours total) and sit one hour at a time (tw o hours total) during an eight-hour day; never stoop or crouch; and occasionally twist and c lim b (Tr. 345-47). O n June 12, 2006, the plaintiff underwent a consultative psychological e v a lu a tio n by Ron O. Thompson, Ph.D., in connection with her applications for benefits. She s a id she was applying for disability benefits due to pain. On mental status examination, she fo llo w e d simple directions, responded accordingly, made simple cash transactions, had c o h e re n t speech, and demonstrated intellect within the low normal range. She exhibited poor a tte n tio n , concentration, and short-term memory. The plaintiff denied having any difficulties le a rn in g at school. Her activities included light housework, cooking while sitting on a stool, d r iv in g to the store, and watering her flowers. Dr. Thompson diagnosed a moderate affective d is o rd e r with major depressive features and a pain disorder associated with psychological fa c to rs and general medical condition. He said that the plaintiff had a moderate concentration d e fic ie n cy and "likely would have difficulty attending to simple tasks for a prolonged period o f time without becoming distracted, possibly causing incompletion of tasks and error p r o n e n e s s " (Tr. 349-52).

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T h e plaintiff returned to Dr. Cordas on July 15, 2005, and said her right knee fe lt better since her last injection. She was tender over the right shoulder, but

n e u r o v a s c u la r ly intact. Her knee was not tender and there was no crepitus (popping sound). D r. Cordas assessed improved bursitis and continued muscle spasm with a trigger point in th e right shoulder girdle. He provided a trigger point injection to her shoulder (Tr. 359). In a daily activity questionnaire completed in March 2005, the plaintiff reported th a t she required help with bathing, had difficulty sleeping, did not prepare meals or do h o u s e h o ld chores, and no longer engaged in recreational or social activities (Tr. 81-82). She in d ic a te d that she could drive up to 20 miles if necessary (Tr. 84). In an affidavit dated October 14, 2005, the plaintiff stated that she had to a lte rn a te between sitting and standing (Tr. 325). She also stated that she could not do any h o u s e w o rk involving bending, stooping or standing for long periods, and that she was f o r g e tf u l and depressed (Tr. 326). A t the post-remand hearing on January 17, 2007, the plaintiff testified that she c o u ld lift five or six pounds (Tr. 575), stand 12 minutes at a time (Tr. 580), had difficulty b a la n cin g (Tr. 577), did not use a cane (Tr. 578), and had back pain with pushing and pulling ( T r. 578). She said that her face swelled from sinus problems (Tr. 576-77). The plaintiff te s tifie d that she cooked, but was forgetful from medication (Tr. 578). She complained of c o n ce n tra tio n problems (Tr. 579), and said she could not think straight (Tr. 580). On a typical d a y she would "[j]ust lay around" (Tr. 582). She rated her back pain as a 10 on a scale of one to 10 (Tr. 583). T h e ALJ asked vocational expert Carey Alexander W a s h in g to n the following h yp o th e tic a l question: A ss u m e an individual who's limited to light exertional work as d e fin e d in the regulations and assume an individual the c la im a n t's education, past job experience with the restrictions as fo llo w s . Because of depression, the side-effects of medications a n d because of pain is limited to simple routine work, a low

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s tre s s environment and that's what I define as requiring few d e cis io n s, no ongoing interaction with the public, no balancing, o c c a s io n a l stooping, kneeling, crouching, and crawling, no la d d e rs , no ropes, no scaffolds. Again because of dizziness and s id e -e ffe c ts of medications the avoidance of hazards such as u n p ro te c te d heights and dangerous machinery. Now based on th is profile would there be jobs available this individual could p e rfo rm and if so would you provide examples of such and the a p p ro x im a te numbers present and DOT 6 numbers if you have th e m ? (T r. 584-85). Mr. W a s h in g to n testified that the individual could perform the representative lig h t unskilled jobs of marker (DOT 209.587-034, 175,000 jobs nationally), which would allow th e individual to alternate sitting and standing at will, poultry boner (DOT 525.687-066, 1 5 0 ,0 0 0 jobs nationally), and assembler (DOT 706.687-010, 225,000 jobs nationally) (Tr. 5 8 5 -8 6 ). In response to questions by her attorney, Mr. W a s h in g to n testified that the ability to work only four hours per day would preclude substantial gainful employment (Tr. 587).

AN AL Y S I S T h e plaintiff alleges disability since February 21, 2004, when she was 48 years o ld , due to cervical and lumbar strain, degenerative changes in her lumbar spine, arthritis in h e r right knee, depression, chronic pain disorder, anxiety, and mental retardation. She has p a s t relevant work as a nurse's aide and textile worker. The ALJ found that the plaintiff re ta in e d the residual functional capacity ("RFC") to perform light work with restrictions that re q u ire no more than occasional stooping, kneeling, crouching or crawling; no balancing, no c lim b in g of ladders, ropes or scaffolds; avoidance of hazards such as unprotected heights a n d dangerous machinery; and simple work in a low stress environment that does no[t] re q u ire any ongoing interaction with the public. The plaintiff argues that the ALJ erred by (1) fa ilin g to abide by the Appeals Council's remand order to obtain additional medical evidence

6

U.S. Dep't of Labor, Dictionary of Occupational Titles (4th ed., Rev. 1991) ("DOT").

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a n d /o r clarification from Dr. Cordas, her treating orthopaedic surgeon, or in the alternative, o b ta in evidence from another medical expert to clarify the nature and severity of her im p a irm e n ts ; (2) failing to properly consider her mental impairments in determining her re s id u a l functional capacity; and (3) posing an improper question to the vocational expert.

R e m a n d Order T h e plaintiff argues that the ALJ failed to follow the mandate of the Appeals C o u n cil to obtain a clarification of her residual functional capacity from Dr. Cordas, the tre a tin g orthopaedic physician. Dr. Cordas performed an independent medical examination o f the plaintiff on November 10, 2004. He assessed an 11% spine impairment and an 8% w h o le person impairment. He also noted that the plaintiff had significant depression and s h o u ld see a mental health professional. Regarding her work capacity, he concluded that s h e was "most suited for light physical work . . . with occasional force exertion of up to 20 p o u n d s and frequent force exertion of only up to 10 pounds" (Tr. 248-50). Dr. Cordas treated th e plaintiff from November 10, 2004, to August 26, 2005 (Tr. 336). The record contains the tr e a tm e n t notes from that time period (Tr. 242-45, 248-50, 290, 309, 313). F o llo w in g the ALJ's first decision, the plaintiff requested review by the Appeals C o u n cil and submitted new evidence to the Appeals Council. The new evidence contained fo u r different assessments by Dr. Cordas concerning the plaintiff's functional limitations. F irs t, he completed a "Fibromyalgia Residual Functional Capacity Questionnaire" (Tr. 3364 0 ), in which he stated the plaintiff could walk two to three blocks at a time, sit one hour at a time for a total of two hours, and stand one hour at a time for a total of less than two hours in an eight-hour workday. He also stated that she would need to change positions at will and ta k e four or five unscheduled breaks per day. He further found the plaintiff could lift 10 p o u n d s occasionally; rarely twist, climb, and hold her head in a static position; and never s to o p , crouch, look down, or turn her head to the right or left. He also assessed restrictions

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o n handling, fine manipulation, and reaching, and said that the plaintiff would miss four days o f work per month (Tr. 336-40). S e co n d , Dr. Cordas completed a "Medical Opinion Regarding Physical Capacity to W o rk " form, dated December 12, 2005, in which he found that the plaintiff was limited to s e d e n ta ry work (Tr. 341). Third, Dr. Cordas completed a "Clinical Assessment of Pain" form, d a te d December 12, 2005, in which he found that the plaintiff's pain would be distracting at w o rk , greatly increased pain was likely to occur, and significant side effects could be e x p e c te d to limit her effectiveness, but that the pain and side effects would not produce lim ita tio n s to such a degree as to create serious problems in performing her previous work a c tiv itie s (Tr. 342-43). Fourth, Dr. Cordas completed a "Medical Opinion re: Ability to Do W o rk -R e la te d Activities (Physical)" form, dated December 12, 2005, in which he found that th e plaintiff could lift 10 pounds occasionally; stand 45 minutes at a time (less than two hours to ta l) and sit one hour at a time (two hours total) during an eight-hour day; never stoop or c r o u c h ; and occasionally twist and climb (Tr. 345-47). T h e Appeals Council stated as follows in its remand order (in pertinent part): · The [ALJ] found that the claimant's limitations as a result of her s e v e re impairments . . . did not preclude her form performing a ra n g e of light work related activities . . . . New and material e v id e n c e from Daniel Cordas, M.D., has been received by the A p p e a ls Council. This evidence, a fibromyalgia questionnaire a n d medical source statement . . . has not been considered by th e [ALJ]. However, the new evidence is not accompanied by u p d a te d treatment evidence from Dr. Cordas as the most current e v id e n c e from him dates from June 2005 in which he limited the c la im a n t to lifting up to 20 pounds (Exhibit 16F). The new e v id e n c e indicates the claimant was seen seven times through A u g u st 26, 2005, but the questionnaire is dated August 22, 2003. F u rth e r development is needed. U p o n remand, the [ALJ] will: · Give further consideration to the claimant's maximum residual fu n ctio n a l capacity. . . . As appropriate, the [ALJ] will request the tre a tin g source to provide additional evidence and/or further

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c la rific a tio n of the opinions and medical source statements about w h a t the claimant can still do despite the impairments. · Further, if necessary, obtain evidence from a medical expert to c la rify the nature and severity of the claimant's impairments. . . . · If warranted, obtain supplemental evidence from a vocational e x p e rt to clarify the effect of the assessed limitations on the c la im a n t's occupational base. . . . In compliance with the above, th e [ALJ] will offer the claimant an opportunity for a hearing, a d d re s s the evidence which was submitted with the request for re v ie w , take any further action needed to complete the a d m in is tra tiv e record, and issue a new decision. ( T r. 397-98). U p o n remand, the ALJ gave "no weight to these forms completed by Dr. Cordas m o n th s after he last examined the claimant" (Tr. 25). The ALJ pointed out that Dr. Cordas h a d not seen the plaintiff since August 2005, that he never referenced fibromyalgia (nor is th e re any diagnosis of it in the record) even though he completed a questionnaire geared to w a rd fibromyalgia patients, and that he previously assessed only very low impairment ra tin g s regarding the plaintiff's spine (11%), right upper extremity (3%), right lower extremity (4 % ) and whole body (8%) (Tr. 25). The ALJ concluded that Dr. Cordas' most recent opinions w e re not supported by his own treatment notes or impairment ratings, nor were they c o n s is te n t with the opinions of the other examining and treating sources (Tr. 25). T h e plaintiff argues that the ALJ failed to obtain clarification of her residual fu n ctio n a l capacity from Dr. Cordas and that if the ALJ failed to recontact Dr. Cordas, he was r e q u ir e d to obtain medical expert testimony instead. The defendant argues that the record b e fo re the ALJ was complete and unambiguous, and thus the ALJ was not required to re c o n ta c t Dr. Cordas or obtain medical expert testimony (Tr. 398). However, it appears to this c o u r t that Dr. Cordas' opinion, as the plaintiff's treating orthopaedic surgeon, does require c la rific a tio n as noted by the Appeals Council. Accordingly, upon remand, the ALJ should be in s tru c te d to obtain updated additional medical evidence and/or clarification from Dr. Cordas

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a s to his opinion ­ and the basis for his opinion ­ of the plaintiff's residual functional capacity. F u rth e r, the plaintiff contends that clarification is needed on the date beside the signature of D r . Cordas on the "Fibromyalgia Residual Functional Capacity Questionnaire" (Tr. 336-40). T h e date beside his name is August 22, 2003; however, Dr. Cordas did not begin seeing the p la in tiff until November 10, 2004 (Tr. 248-50). The plaintiff first injured her back on

A u g u st 22, 2003, when lifting a patient at work (Tr 135). The August 22, 2003, date thus a p p e a rs to be in response to the question immediately above the signature line, which asked " W h a t was the earliest date the description of symptoms and limitations on this questionnaire a p p lie s ? " (Tr. 340). Upon remand, the ALJ should obtain clarification from Dr. Cordas as to th e date on the fibromyalgia questionnaire (Tr. 336-40). Further, in the event the ALJ is u n a b le to secure sufficient information from Dr. Cordas, the ALJ should obtain a consultative e x a m in a tio n of the plaintiff to clarify the nature and severity of the plaintiff's impairments.

R e s id u a l Functional Capacity T h e plaintiff next argues that the ALJ erred by failing to address her mental im p a irm e n ts in terms of work-related functions. The Residual Functional Capacity ("RFC") assessment must in c lu d e a narrative discussion describing how the evidence s u p p o rts each conclusion, citing specific medical facts (e.g., la b o ra to ry findings) and nonmedical evidence (e.g., daily a c tiv itie s , observations). In assessing RFC, the adjudicator must d is c u s s the individual's ability to perform sustained work a c tiv itie s in an ordinary work setting on a regular and continuing b a sis (i.e., 8 hours a day, for 5 days a week, or an equivalent w o r k schedule), and describe the maximum amount of each w o rk - related activity the individual can perform based on the e v id e n c e available in the case record. The adjudicator must also e x p la in how any material inconsistencies or ambiguities in the e v id e n c e in the case record were considered and resolved. . . . S S R 96-8p, 1996 W L 374184, *7.

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In a disability case, the combined effect of all the claimant's impairments must b e considered without regard to whether any such impairment if considered separately would b e sufficiently disabling. W h e re there is a combination of impairments, the issue "is not only th e existence of the problems, but also the degree of their severity, and whether, together, th e y impaired the claimant's `ability to engage in substantial gainful activity.'" Oppenheim v. F in c h , 495 F.2d 396, 398 (4 th Cir. 1974). The ailments should not be fractionalized and c o n s id e re d in isolation, but considered in combination to determine the impact on the ability o f the claimant to engage in substantial gainful activity. Id. The cumulative or synergistic e ffe c t of the various impairments on the claimant's ability to work must be analyzed. D e L o a tc h e v. Heckler, 715 F.2d 148, 150 (4 th Cir. 1983). " A s with exertional capacity, nonexertional capacity must be expressed in terms o f work- related functions." SSR 96-8p, 1996 W L 374184, *6. "W o rk -re la te d mental activities g e n e ra lly required by competitive, remunerative work include the abilities to: understand, c a r ry out, and remember instructions; use judgment in making work-related decisions; re s p o n d appropriately to supervision, co-workers and work situations; and deal with changes in a routine work setting." Id. The ALJ found that the plaintiff's depression was a severe impairment and n o te d that several examiners stated the plaintiff "appeared depressed and that depression a n d /o r `psychological factors' influenced her pain" (Tr. 22, 26). The ALJ considered the p la in tiff's degree of functional limitation in four broad functional areas and determined that th e plaintiff had no more than a mild restriction of her activities of daily living; moderate d ifficu ltie s in maintaining social functioning; moderate difficulties in maintaining concentration, p e rs is te n c e or pace on complex tasks and detailed instructions, but she should be able to a tte n d to and perform simple tasks throughout the work day for at least two hours at a time w ith normal work breaks and without special supervision; and no episodes of d e c o m p e n s a tio n (Tr. 280). The ALJ determined that "[t]he effect of these limitations is to

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fu r th e r restrict the claimant's residual functional capacity to the performance of simple, routine w o r k in a low stress environment involving no ongoing interaction with the general public" (Tr. 2 8 0 ). In assessing the plaintiff's mental residual functional capacity, the ALJ properly c o n s id e re d the objective medical evidence and the varying opinions, as well as the credibility o f the plaintiff's subjective complaints regarding her mental limitations. He noted her lack of tre a tm e n t by a mental health professional and the varying assessments of the medical s o u rc e s . He referenced the numerous inconsistencies in her presentation to different He noted that while anti-anxiety and antidepressant

p h ys ic ia n s and psychologists.

m e d ic a tio n s were prescribed, there was no evidence to suggest that they were not effective o r to indicate adverse side-effects from those particular medications. He also observed the fa c t that the plaintiff did not demonstrate significant memory problems at the administrative h e a r in g (Tr. 27). T h e ALJ's mental RFC determination was supported by Dr. Jones' evaluation o f the plaintiff wherein he found the plaintiff had no difficulty comprehending or following v e r b a l instruction or maintaining attention or concentration, her thought processes were lo g ic a l and coherent, she maintained impulse control, and she had an appropriate social m a n n e r (Tr. 139). Also, Dr. Thompson's evaluation revealed the plaintiff followed simple in s tru c tio n s, responded accordingly, made simple cash transactions, had coherent speech, a n d demonstrated intellect within the "low normal" range (Tr. 349). Dr. Thompson determined th a t her depression and concentration deficiency were of moderate severity (Tr. 352). The A L J 's finding was also supported by Dr. Jones' statement in November 2004 that the p la in tiff's impairments would affect her in various ways ­ i.e.., problem-solving and stress to le r a n c e ­ but would not affect her ability to perform simple, detailed or complex tasks (Tr. 1 4 2 -4 3 ). The ALJ's determination was further supported by one of Dr. Cordas' statements is s u e d in December 2005, wherein he stated that the plaintiff's pain and medication side

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e ffe c ts would not create serious problems in the performance of her previous work activities (T r. 342-43). Additionally, the ALJ's determination was supported by Dr. Harkness' review o f the record and determination that the plaintiff had mild to moderate functional limitations a n d was not significantly limited in her ability to handle simple instructions, sustain a schedule a n d routine, complete a normal day and workweek, get along with coworkers, maintain s o c ia lly appropriate behavior, and respond to changes (Tr. 255-56, 270). Based upon the fo re g o in g , this court finds that the ALJ appropriately addressed the plaintiff's mental im p a irm e n ts in determining her RFC.

H y p o th e tic a l Question T h e plaintiff argues that the ALJ erred in posing an improper hypothetical q u e s tio n to the vocational expert. The ALJ gave the following hypothetical question: A s s u m e an individual who's limited to light exertional work as d e fin e d in the regulations and assume an individual the c la im a n t's education, past job experience with the restrictions as fo llo w s . Because of depression, the side-effects of medications a n d because of pain is limited to simple routine work, a low s tre s s environment and that's what I define as requiring few d e cis io n s, no ongoing interaction with the public, no balancing, o c c a s io n a l stooping, kneeling, crouching, and crawling, no la d d e rs , no ropes, no scaffolds. Again because of dizziness and s id e -e ffe c ts of medications the avoidance of hazards such as u n p ro te c te d heights and dangerous machinery. Now based on th is profile would there be jobs available this individual could p e rfo rm and if so would you provide examples of such and the a p p r o x im a te numbers present and DOT numbers if you have th e m ? (T r. 584-85). The vocational expert testified that the individual could perform the

r e p r e s e n ta tiv e light unskilled jobs of marker (DOT 209.587-034, 175,000 jobs nationally), w h ic h would allow the individual to alternate sitting and standing at will, poultry boner (DOT 5 2 5 .6 8 7 -0 6 6 , 150,000 jobs nationally), and assembler (DOT 706.687-010, 225,000 jobs n a tio n a lly) (Tr. 585-86). In response to questions by her attorney, the vocational expert

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te s tifie d that the ability to work only four hours per day would preclude substantial gainful e m p lo ym e n t ( Tr. 587). "[I]n order for a vocational expert's opinion to be relevant or helpful, it must be b a s e d upon a consideration of all other evidence in the record, and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Walker v . Bowen, 889 F.2d 47, 50 (4 th Cir. 1989) (citation omitted). T h e plaintiff argues that "[b]y asking the hypothetical in the manner in which he d id , the ALJ negated the purpose of having a vocational expert testify at the hearing" (pl. brief 1 0 ). The plaintiff argues that the question did not set out the plaintiff's abilities and limitations a n d rather just assumed the light work limitation. See Walker, 889 F.2d at 51 ("In this case th e ALJ did not ask questions that ensured that the vocational expert knew what the c la im a n t's abilities and limitations were. Therefore, his answers to those questions were not p a rtic u la rly useful."). This court agrees. Upon remand, the ALJ should be instructed to obtain v o c a tio n a l expert testimony in response to hypothetical questions setting out all of the p la in tiff's impairments, both exertional and nonexertional.

C O N C L U S IO N AND RECOMMENDATION B a s e d upon the foregoing, this court recommends that the Commissioner's d e c is io n be reversed under sentence four of 42 U.S.C. §405(g), with a remand of the cause to the Commissioner for further proceedings as discussed above.

October 31, 2008 Greenville, South Carolina

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