Mills v. Commissioner of Social Security Administration
Filing
20
ORDER that the Commissioners decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED to the Commissioner for further administrative action. Signed by Magistrate Judge Jacquelyn D Austin on 8/30/11. (gpre, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Evelyn H. Mills, Personal
Representative of the Estate of
Kennedy Dean Mills,
Plaintiff,
vs.
Michael J. Astrue,
Commissioner of Social Security,
Defendant.
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Civil Action No. 8:10-cv-712-JDA
ORDER
This matter is before the Court for a final Order pursuant to Local Civil Rules
73.02(B)(1) and 83.VII.02, D.S.C.; 28 U.S.C. § 636(c); the parties’ consent to jurisdiction
by a United States Magistrate Judge; and the Honorable Cameron McGowan Currie’s April
4, 2011 Order of reference. Plaintiff Evelyn H. Mills (“Plaintiff”), as personal representative
of the estate of the claimant, Kennedy Dean Mills (“Claimant”),1 brought this action
pursuant to 42 U.S.C. §§ 405(g) to obtain judicial review of a final decision of the
Commissioner of Social Security ("the Commissioner"), denying Claimant’s claims for
disability insurance benefits ("DIB"). For the reasons set forth below, the decision of the
Commissioner is reversed and remanded for administrative action consistent with this
Order, pursuant to sentence four of 42 U.S.C. § 405(g).
1
Plaintiff was Claim ant’s wife. [R. 26.]
PROCEDURAL HISTORY
Claimant initially filed a claim for disability insurance in August 2007 [R. 119–21],
alleging disability as of June 2, 2007 [R. 119]. His claims were denied initially [R. 91–92]
and on reconsideration [R. 93, 105–06]. Claimant filed a request for hearing, and on
November 5, 2008, Administrative Law Judge ("ALJ") Walter Herin held a hearing on
Claimant’s claims. [R. 22–90.]
On March 4, 2009, the ALJ issued his decision that Claimant was not disabled under
§§ 216(i) and 223(d) of the Social Security Act ("the Act"). [R. 8–21.] Following his review
of the evidence, the ALJ found Claimant had the following severe impairments:
pancreatitis, diabetes mellitus, and a history of alcohol abuse in early remission. [R. 13,
Finding 3.] However, the ALJ found Claimant did not have an impairment or combination
of impairments that met or medically equaled one of the impairments listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1. [R. 13, Finding 4.] The ALJ also found Claimant
retained the residual functional capacity to lift and carry up to 20 pounds occasionally and
10 pounds frequently; with no climbing of ladders, ropes, or scaffolds; and with avoidance
of hazards such as unprotected heights, vibration, and dangerous machinery. [R. 14,
Finding 5.] With these restrictions, the ALJ found Claimant was unable to perform any past
relevant work [R. 19, Finding 6], but jobs existed in significant numbers in the national
economy Claimant could perform [R. 20, Finding 10].
On May 6, 2009, Claimant filed a request for review of the ALJ’s decision. [R. 7.]
On January 14, 2010, the ALJ’s findings became the final decision of the Commissioner
when the Appeals Council denied Claimant’s request for review of the hearing decision.
[R. 1–6; 20 C.F.R. § 404.981.] Claimant died on November 13, 2009 while his request was
2
pending before the Appeals Council; listed on the death certificate as the cause of death
were “a. Cardio Pulmonary Arrest; b. Aspiration Pneumonia; c. Seizures; d. CVA.” [Doc.
9 at 3.] Plaintiff, as personal representative of Claimant’s estate, filed this action for judicial
review on March 19, 2010. [Doc. 1.]
THE PARTIES’ POSITIONS
Plaintiff contends (1) Claimant had impairments in addition to the impairments the
ALJ found were severe [Doc. 9 at 5]; (2) the Commissioner’s decision that Claimant did not
have an impairment or combination of impairments listed in, or medically equal to, one of
the listed impairments is in error because the ALJ improperly weighed Dr. Freeman’s
opinion [id. at 5–10]; (3) the ALJ’s residual functional capacity assessment is erroneous
because the ALJ improperly discredited Claimant’s complaints of pain [id. at 11–14],
improperly discredited Dr. Stewart’s report [id. at 14–17], and improperly weighed Dr.
Pinner’s opinion [id. at 17]; and (4) the ALJ failed to include all of Claimant’s impairments
in the hypothetical posed to the vocational expert [id. at 18–21].
The Commissioner contends (1) the ALJ reasonably considered and assigned
weight to the opinion evidence of record [Doc. 10 at 8–12]; (2) the ALJ reasonably found
Claimant’s subjective complaints of pain were not fully credible [id. at 12–13]; and (3) the
ALJ reasonably found Claimant retained the residual functional capacity to perform work
existing in significant numbers in the regional and national economies and that such work
required minimal vocational adjustments [id. at 13–15].
3
STANDARD OF REVIEW
The Commissioner’s findings of fact are conclusive if supported by substantial
evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the
evidence must do more than merely create a suspicion of the existence of a fact and must
include such relevant evidence as a reasonable person would accept as adequate to
support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368
F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687
(S.D.W. Va. 1963)) (“Substantial evidence, it has been held, is evidence which a reasoning
mind would accept as sufficient to support a particular conclusion. It consists of more than
a mere scintilla of evidence but may be somewhat less than a preponderance. If there is
evidence to justify a refusal to direct a verdict were the case before a jury, then there is
‘substantial evidence.’”).
Where conflicting evidence “‘allows reasonable minds to differ as to whether a
claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the
[Commissioner’s] designate, the ALJ),’” not on the reviewing court. Craig v. Chater, 76
F.3d 585, 589 (4th Cir. 1996) (quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir.
1987)); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that
where the Commissioner’s decision is supported by substantial evidence, the court will
affirm, even if the reviewer would have reached a contrary result as finder of fact and even
if the reviewer finds that the evidence preponderates against the Commissioner’s decision).
Thus, it is not within the province of a reviewing court to determine the weight of the
4
evidence, nor is it the court’s function to substitute its judgment for that of the
Commissioner so long as the decision is supported by substantial evidence. Laws, 368
F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse a Commissioner’s decision on plenary review,
however, if the decision applies incorrect law or fails to provide the court with sufficient
reasoning to determine that the Commissioner properly applied the law. Myers v. Califano,
611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep’t of Health & Human Servs., 21
F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner’s decision “is in clear
disregard of the overwhelming weight of the evidence, Congress has empowered the
courts to modify or reverse the [Commissioner’s] decision ‘with or without remanding the
cause for a rehearing.’” Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42
U.S.C. § 405(g)). Remand is unnecessary where “the record does not contain substantial
evidence to support a decision denying coverage under the correct legal standard and
when reopening the record for more evidence would serve no purpose.” Breeden v.
Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence
four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir.
1991) (unpublished table decision). To remand under sentence four, the reviewing court
must find either that the Commissioner’s decision is not supported by substantial evidence
or that the Commissioner incorrectly applied the law relevant to the disability claim. See,
e.g., Jackson v. Chater, 99 F.3d 1086, 1090–91 (11th Cir. 1996) (holding remand was
appropriate where the ALJ failed to develop a full and fair record of the plaintiff’s residual
5
functional capacity); Brehem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980) (holding remand
was appropriate where record was insufficient to affirm but was also insufficient for court
to find the plaintiff disabled).
Where the court cannot discern the basis for the
Commissioner’s decision, a remand under sentence four may be appropriate to allow the
Commissioner to explain the basis for the decision. See Smith v. Heckler, 782 F.2d 1176,
1181–82 (4th Cir. 1986) (remanding case where decision of ALJ contained “a gap in its
reasoning” because ALJ did not say he was discounting testimony or why); Gordon v.
Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor
the Appeals Council indicated the weight given to relevant evidence). On remand under
sentence four, the ALJ should review the case on a complete record, including any new
material evidence. See Smith, 782 F.2d at 1182 (“The [Commissioner] and the claimant
may produce further evidence on remand.”). After a remand under sentence four, the court
enters a final and immediately appealable judgment and then loses jurisdiction. Sargent,
941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be
taken before the Commissioner of Social Security, but only
upon a showing that there is new evidence which is material
and that there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding . . . .
42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the
basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the
determination of disability at the time the application was first filed; (2) the evidence is
material to the extent that the Commissioner’s decision might reasonably have been
6
different had the new evidence been before him; (3) there is good cause for the claimant’s
failure to submit the evidence when the claim was before the Commissioner; and (4) the
claimant made at least a general showing of the nature of the new evidence to the
reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. §
405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d
26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by
amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec’y, Dep’t of
Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991).2 With remand under sentence
six, the parties must return to the court after remand to file modified findings of fact.
Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and
does not enter a final judgment until after the completion of remand proceedings. See
Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an
order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C.
§ 405(g) is not a final order).
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured
for benefits, who are not of retirement age, who properly apply, and who are under a
disability. 42 U.S.C. § 423(a). “Disability” is defined as:
2
Though the court in W ilkins indicated in a parenthetical that the four-part test set forth in Borders had
been superseded by an am endm ent to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite
the requirem ents outlined in Borders when evaluating a claim for rem and based on new evidence. See, e.g.,
Ashton v. Astrue, No. 6:10-cv-152, 2010 W L 5478646, at *8 (D.S.C. Nov. 23, 2010); W ashington v. Comm’r
of Soc. Sec., No. 2:08-cv-93, 2009 W L 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec’y of Health &
Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W . Va. 1992). Further, the Suprem e Court of the United
States has not suggested Borders’ construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S.
617, 626 n.6 (1990). Accordingly, the Court will apply the m ore stringent Borders inquiry.
7
the inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period
of not less than 12 consecutive months.
Id. § 423(d)(1)(A).
I.
The Five Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations
have reduced the statutory definition of disability to a series of five sequential questions.
See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a “need for efficiency”
in considering disability claims). The ALJ must consider whether (1) the claimant is
engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the
impairment meets or equals an impairment included in the Administration’s Official Listings
of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents
the claimant from performing past relevant work; and (5) the impairment prevents the
claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the
fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699
F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day
of her insured status to receive disability benefits. Everett v. Sec’y of Health, Educ. &
Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden
shifts to the Commissioner to produce evidence that other jobs exist in the national
economy that the claimant can perform, considering the claimant’s age, education, and
work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find
8
an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. §
404.1520(a),; Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A.
Substantial Gainful Activity
“Substantial gainful activity” must be both substantial—involves doing significant
physical or mental activities, 20 C.F.R. § 404.1572(a)—and gainful—done for pay or profit,
whether or not a profit is realized, 20 C.F.R. § 404.1572(b). If an individual has earnings
from employment or self-employment above a specific level set out in the regulations, he
is generally presumed to be able to engage in substantial gainful activity. 20 C.F.R. §
404.1574–.1575.
B.
Severe Impairment
An impairment is “severe” if it significantly limits an individual’s ability to perform
basic work activities. See 20 C.F.R. § 404.1521. When determining whether a claimant’s
physical and mental impairments are sufficiently severe, the ALJ must consider the
combined effect of all of the claimant’s impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ
must evaluate a disability claimant as a whole person and not in the abstract, having
several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49–50 (4th Cir.
1989) (stating that, when evaluating the effect of a number of impairments on a disability
claimant, “the [Commissioner] must consider the combined effect of a claimant’s
impairments and not fragmentize them”). Accordingly, the ALJ must make specific and
well-articulated findings as to the effect of a combination of impairments when determining
whether an individual is disabled. Id. at 50 (“As a corollary to this rule, the ALJ must
9
adequately explain his or her evaluation of the combined effects of the impairments.”). If
the ALJ finds a combination of impairments to be severe, “the combined impact of the
impairments shall be considered throughout the disability determination process.” 42
U.S.C. § 423(d)(2)(B).
C.
Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant’s impairment or combination of impairments meets or medically equals
the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration
requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without
considering the claimant’s age, education, and work experience. 20 C.F.R. § 404.1520(d).
D.
Past Relevant Work
The assessment of a claimant’s ability to perform past relevant work “reflect[s] the
statute’s focus on the functional capacity retained by the claimant.” Pass v. Chater, 65
F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the
claimant’s residual functional capacity3 with the physical and mental demands of the kind
of work he has done in the past to determine whether the claimant has the residual
functional capacity to do his past work. 20 C.F.R. § 404.1560(b).
E.
Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior
work, the burden of proof shifts to the Commissioner to establish that the claimant could
3
Residual functional capacity is “the m ost [a claim ant] can do despite [his] lim itations.” 20 C.F.R. §
404.1545(e)
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perform other work that exists in the national economy. See 20 C.F.R. § 404.1520(f)–(g);
Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992).
To meet this burden, the
Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the
“grids”). Exclusive reliance on the “grids” is appropriate where the claimant suffers
primarily from an exertional impairment, without significant nonexertional factors.4 20
C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); Gory v. Schweiker, 712 F.2d 929, 930–31
(4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving
exertional limitations). When a claimant suffers from both exertional and nonexertional
limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case,
the Commissioner must use a vocational expert to establish the claimant’s ability to
perform other work. 20 C.F.R. § 404.1569a; see Walker, 889 F.2d at 49–50 (“Because we
have found that the grids cannot be relied upon to show conclusively that claimant is not
disabled, when the case is remanded it will be incumbent upon the [Commissioner] to
prove by expert vocational testimony that despite the combination of exertional and
nonexertional impairments, the claimant retains the ability to perform specific jobs which
exist in the national economy.”). The purpose of using a vocational expert is “to assist the
ALJ in determining whether there is work available in the national economy which this
particular claimant can perform.” Walker, 889 F.2d at 50. For the vocational expert’s
4
An exertional lim itation is one that affects the claim ant’s ability to m eet the strength requirem ents of jobs.
20 C.F.R. § 404.1569a. A nonexertional lim itation is one that affects the ability to m eet the dem ands of the
job other than the strength dem ands. Id. Exam ples of nonexertional lim itations include but are not lim ited
to difficulty functioning because of being nervous, anxious, or depressed; difficulty m aintaining attention or
concentrating; difficulty understanding or rem em bering detailed instructions; difficulty seeing or hearing. Id.
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testimony to be relevant, “it must be based 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.” Id. (citations omitted).
II.
Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783
F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant
issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important
when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir.
1980). In such circumstances, “the ALJ should scrupulously and conscientiously probe
into, inquire of, and explore for all the relevant facts, . . . being especially diligent in
ensuring that favorable as well as unfavorable facts and circumstances are elicited.” Id.
(internal quotations and citations omitted).
III.
Treating Physicians
The opinion of a claimant’s treating physician must “be given great weight and may
be disregarded only if there is persuasive contradictory evidence” in the record. Coffman
v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987) (citing Foster v. Heckler, 780 F.2d 1125, 1130
(4th Cir. 1986) (holding that a treating physician’s testimony is entitled to great weight
because it reflects an expert judgment based on a continuing observation of the patient’s
condition over a prolonged period of time); Mitchell v. Schweiker, 699 F.2d 185, 187 (4th
Cir. 1983)). If a treating physician’s opinion on the nature and severity of a claimant’s
impairments is “well-supported by medically acceptable clinical and laboratory diagnostic
12
techniques and is not inconsistent with the other substantial evidence” in the record, the
ALJ must give it controlling weight. 20 C.F.R. § 404.1527(d)(2); see Mastro v. Apfel, 270
F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician’s opinion if it is
unsupported or inconsistent with other evidence. Craig, 76 F.3d at 590. Similarly, where
a treating physician has merely made conclusory statements, the ALJ may afford the
opinion such weight as is supported by clinical or laboratory findings and other consistent
evidence of a claimant’s impairments. See id. (holding there was sufficient evidence for
the ALJ to reject the treating physician’s conclusory opinion where the record contained
contradictory evidence).
When a treating physician’s opinion does not warrant controlling weight, the ALJ
must nevertheless assign a weight to the medical opinion based on the 1) length of the
treatment relationship and the frequency of examination; 2) nature and extent of the
treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with
the record a whole; 5) specialization of the physician; and 6) other factors which tend to
support or contradict the opinion. 20 C.F.R. § 404.1527(d),. In any instance, a treating
physician’s opinion is generally entitled to more weight than a consulting physician’s
opinion. See Mitchell, 699 F.2d at 187 (stating that treating physician’s opinion must be
accorded great weight because “it reflects an expert judgment based on a continuing
observation of the patient’s condition for a prolonged period of time”); 20 C.F.R. §
404.1527(d)(2). An ALJ determination coming down on the side of a non-examining, non-
13
treating physician’s opinion can stand only if the medical testimony of examining and
treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir.1986).
The ALJ is required to review all of the medical findings and other evidence that
support a medical source’s statement that a claimant is disabled. 20 C.F.R. § 404.1527(e).
However, the ALJ is responsible for making the ultimate determination about whether a
claimant meets the statutory definition of disability. Id.
IV.
Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a
claimant’s medical sources do not give sufficient medical evidence about an impairment
to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v.
Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative
examination is not required when there is sufficient medical evidence to make a
determination on a claimant’s disability. 20 C.F.R. § 404.1517. Under the regulations,
however, the ALJ may determine that a consultative examination or other medical tests are
necessary. Id.
V.
Pain
Congress has determined that a claimant will not be considered disabled unless he
furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing
the existence of a medical impairment that could reasonably be expected to produce the
pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). In evaluating claims of disabling
pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App’x 716,
14
723 (4th Cir. 2005) (unpublished opinion). First, “the ALJ must determine whether the
claimant has produced medical evidence of a ‘medically determinable impairment which
could reasonably be expected to produce . . . the actual pain, in the amount and degree,
alleged by the claimant.’” Id. (quoting Craig, 76 F.3d at 594). Second, “if, and only if, the
ALJ finds that the claimant has produced such evidence, the ALJ must then determine, as
a matter of fact, whether the claimant’s underlying impairment actually causes her alleged
pain.” Id. (emphasis in original) (citing Craig, 76 F.3d at 595).
Under the Fourth Circuit’s “pain rule,” it is well established that “subjective
complaints of pain and physical discomfort can give rise to a finding of total disability, even
when those complaints [a]re not supported fully by objective observable signs.” Coffman,
829 F.2d at 518.
The ALJ must consider all of a claimant’s statements about his
symptoms, including pain, and determine the extent to which the symptoms can reasonably
be accepted as consistent with the objective medical evidence. 20 C.F.R. § 404.1528.
Indeed, the Fourth Circuit has rejected a rule which would require the claimant to
demonstrate objective evidence of the pain itself, Jenkins v. Sullivan, 906 F.2d 107, 108
(4th Cir. 1990), and ordered the Commissioner to promulgate and distribute to all
administrative law judges within the circuit a policy stating Fourth Circuit law on the subject
of pain as a disabling condition, Hyatt v. Sullivan, 899 F.2d 329, 336–37 (4th Cir. 1990).
The Commissioner thereafter issued the following “Policy Interpretation Ruling”:
This Ruling supersedes, only in states within the Fourth
Circuit (North Carolina, South Carolina, Maryland, Virginia and
West Virginia), Social Security Ruling (SSR) 88-13, Titles II
and XVI: Evaluation of Pain and Other Symptoms:
15
...
FOURTH CIRCUIT STANDARD: Once an underlying
physical or [m]ental impairment that could reasonably be
expected to cause pain is shown by medically acceptable
objective evidence, such as clinical or laboratory diagnostic
techniques, the adjudicator must evaluate the disabling effects
of a disability claimant’s pain, even though its intensity or
severity is shown only by subjective evidence. If an underlying
impairment capable of causing pain is shown, subjective
evidence of the pain, its intensity or degree can, by itself,
support a finding of disability. Objective medical evidence of
pain, its intensity or degree (i.e., manifestations of the
functional effects of pain such as deteriorating nerve or muscle
tissue, muscle spasm, or sensory or motor disruption), if
available, should be obtained and considered. Because pain
is not readily susceptible of objective proof, however, the
absence of objective medical evidence of the intensity,
severity, degree or functional effect of pain is not
determinative.
SSR 90-1p, 55 Fed. Reg. 31,898-02, at 31,899 (Aug. 6, 1990). SSR 90-1p has since been
superseded by SSR 96-7p, which is consistent with SSR 90-1p. See SSR 96-7p, 61 Fed.
Reg. 34,483-01 (July 2, 1996). SSR 96-7p provides, “If an individual’s statements about
pain or other symptoms are not substantiated by the objective medical evidence, the
adjudicator must consider all of the evidence in the case record, including any statements
by the individual and other persons concerning the individual’s symptoms.” Id. at 34,485;
see also 20 C.F.R. § 404.1529(c)(1)–(c)(2) (outlining evaluation of pain).
VI.
Credibility
The ALJ must make a credibility determination based upon all the evidence in the
record. Where an ALJ decides not to credit a claimant’s testimony about pain, the ALJ
must articulate specific and adequate reasons for doing so, or the record must be obvious
as to the credibility finding. Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985).
16
Although credibility determinations are generally left to the ALJ’s discretion, such
determinations should not be sustained if they are based on improper criteria. Breeden,
493 F.2d at 1010 (“We recognize that the administrative law judge has the unique
advantage of having heard the testimony firsthand, and ordinarily we may not disturb
credibility findings that are based on a witness’s demeanor. But administrative findings
based on oral testimony are not sacrosanct, and if it appears that credibility determinations
are based on improper or irrational criteria they cannot be sustained.”).
APPLICATION AND ANALYSIS
Whether Claimant’s Impairments Met or Equaled a Listing
Plaintiff contends the ALJ’s decision that Claimant’s impairments or a combination
of Claimant’s impairments did not meet or equal a listing is not supported by substantial
evidence.
To determine whether a claimant’s impairments meet or equal a listed impairment,
the ALJ identifies the relevant listed impairments and compares the listing criteria with the
evidence of the claimant’s symptoms. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir.
1986) (stating that without identifying the relevant listings and comparing the claimant’s
symptoms to the listing criteria, “it is simply impossible to tell whether there was substantial
evidence to support the determination”). “In cases where there is ‘ample factual support
in the record’ for a particular listing, the ALJ must provide a full analysis to determine
whether the claimant’s impairment meets or equals the listing.” Beckman v. Apfel, No.
WMN-99-3696, 2000 WL 1916316, at *9 (D. Md. Dec. 15, 2000) (unpublished opinion)
(quoting Cook, 783 F.2d at 1172). While the ALJ may rely on the opinion of a State
17
agency medical consultant in conducting a listing analysis, 20 C.F.R. § 404.1527(f)(2)(iii),
the ALJ ultimately bears the responsibility for deciding whether a claimant’s impairments
meet or equal a listing, id. § 404.1527(e)(2).
The ALJ’s entire Step 3 analysis reads:
Dr. Free[d]man testified that he is board-certified in internal
medicine. He indicated that he had reviewed the medical
evidence and that the claimant’s conditions do not meet any
listings. He further testified that he would expect the claimant’s
conditions would result in functional limitations. He indicated
that based on the latest medical evidence, the claimant’s
conditions have been relatively stable since February 2008.
Dr. Free[d]man stated that the claimant’s diabetes is fairly
well[-]controlled with the treatment that he is on. Dr.
Free[d]man testified that the claimant would be limited to
medium work. He stated that he did not feel qualified to
evaluate any mental or emotional situations.
Although not a treating physician, I have given Dr.
Free[d]man’s conclusion that the claimant is capable of
sustained work activities significant weight. As a boardcertified internist, he is a specialist and is well[-]qualified to
provide an opinion on conditions including diabetes mellitus
and pancreatitis. Furthermore, he has the benefit of reviewing
all of the medical evidence of record.
[R. 13–14.] The ALJ’s discussion suggests the ALJ may have considered whether
Claimant satisfied listings pertaining to diabetes mellitus and pancreatitis. However, the
ALJ never mentioned any specific listing in his decision and never provided a discussion
of whether Claimant satisfied the requirements of any listing. [See R. 13–19.] Moreover,
neither the ALJ’s decision nor Dr. Freedman’s testimony indicate which listings Dr.
Freedman analyzed in concluding Claimant’s impairments did not meet or equal a listed
18
impairment.5
Further, the ALJ acknowledged that Dr. Freedman did not evaluate
Claimant’s mental or emotional impairments, but the ALJ did not provide any discussion
as to whether Claimant’s mental impairment of alcohol abuse, which the ALJ identified as
a severe impairment, met or equaled a listed impairment.
The ALJ’s failure to expressly consider and discuss his findings regarding whether
Claimant satisfied a listing constitutes reversible error and warrants a remand to the ALJ
to properly consider the issue. As noted above, a court may reverse an ALJ’s decision if
the decision fails to provide the court with sufficient reasoning to determine that the ALJ
properly applied the law, Myers, 611 F.2d at 982; Keeton, 21 F.3d at 1066, and a remand
under sentence four of § 405(g) may be appropriate to allow the ALJ to explain the basis
for the decision, see Smith, 782 F.2d at 1181–82; Gordon, 725 F.2d at 235. Here, the
decision fails to identify any listing, to explain the standard to be applied, and to compare
Claimant’s symptoms to the requirements of the listing. See Cook, 783 F.2d at 1173
(remanding in part because it was “simply impossible to tell whether there was substantial
evidence to support the determination” when the ALJ’s decision failed to identify the
5
The relevant testim ony is as follows:
ALJ Q.
Are you fam iliar with the m edical listings used by the Social Security
Adm inistration published by the Com m issioner?
Freedm an A:
Yes, sir.
ALJ Q.
Based on your education, experience, and training, and your review of the
m edical evidence, do you have an opinion as to whether the Claim ant in this
case, m edical im pairm ents individual or in com bination, m eet or equal any
of those listings?
Freedm an A:
I feel they do not m eet or equal any of the listings.
[R. 66.]
19
relevant listed impairment and failed to compare each of the listed criteria to the evidence
of the plaintiff’s symptoms). Without such a discussion, the Court is unable to determine
whether the ALJ’s decision at Step 3 of the sequential analysis is supported by substantial
evidence. Therefore, the case must be remanded for a proper analysis of whether any of
Claimant’s impairments, or a combination of Claimant’s impairments, met or equaled a
listed impairment.6
Remaining Issues
As stated above, the Court is unable to review the ALJ's finding at Step 3 regarding
whether Claimant’s impairments met or medically equaled one of the impairments listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1.
When a claimant's impairment or
combination of impairments meets or equals one of the listed impairments in Appendix 1,
the claimant is deemed disabled and no further analysis is required. See 20 C.F.R. §
404.1520(a)(4)(iii). Accordingly, because Plaintiff’s remaining issues may be rendered
moot on remand, the Court need not address them. See Neal v. Astrue, 2010 WL
3046987, at * 5 (D.S.C. Aug. 2, 2010) (citing Boone v. Barnhart, 353 F.3d 203, 211 n.19
(3d Cir.2003) (remanding on other grounds and declining to address the claimant's
additional arguments)).
CONCLUSION
Wherefore, based upon the foregoing, it is ordered that the Commissioner’s decision
be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be
6
The Court notes that the ALJ’s Finding 3 suggests that Listings 9.00B5, concerning diabetes m ellitus
and pancreatic gland disorders, and 12.09, concerning substance addiction disorders, should be considered
under a proper listings analysis, but the Court expresses no opinion as to whether these listings m ust be
considered or are the only listings that should be considered.
20
REMANDED to the Commissioner for further administrative action consistent with this
order.
IT IS SO ORDERED.
s/Jacquelyn D. Austin
United States Magistrate Judge
August 30, 2011
Greenville, South Carolina
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