KENNETH S. APFEL,
Commissioner of Social Security,
[1998 DSD 32]
United States District Court
District of South Dakota
AND ORDER FOR REMAND
Filed Sep 24, 1998
Richard H. Battey, Chief Judge
I. PROCEDURAL HISTORY
[¶1] In an opinion dated October 15, 1996, Robert Maxwell, an Administrative Law Judge ("ALJ"), denied plaintiff Cindy Thorpe ("Thorpe") Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("the Act"). Thorpe then requested review by the Appeals Council of the ALJ's decision, and the Appeals Council declined review. On March 31, 1998, Thorpe filed a complaint before this Court seeking review of the ALJ's decision denying her SSI benefits. She now urges this Court to reverse the decision of the ALJ. The Commissioner of Social Security ("Commissioner") filed his response seeking summary judgment as a matter of law. Thorpe has filed her reply. This Court has jurisdiction to proceed pursuant to 42 USC § 405(g).
[¶2] Thorpe was born on July 1, 1965, and is currently 33 years of age. She has a high school education, and has received some vocational training in computers. She is single and has one child. Tr. 57. Thorpe's work experience includes positions as a kennel attendant for the Humane Society, a cleanup crew worker for the Forest Service, and an employee for Kelly Temporary Services. Tr. 120. Thorpe alleges she is afflicted with severe asthma, chronic back pain, tendinitis in the wrists and shoulder, plantar warts on her feet, and auto-immune chronic hepatitis. Tr. 214, 291, 308. In addition, Thorpe has been diagnosed as suffering from an adjustment disorder with mixed anxiety and depressed mood, and a personality disorder. Tr. 277. Of her physical ailments, Thorpe's severe asthma has been the most troubling. Thorpe was hospitalized due to exacerbation of her asthma(fn1) three times between November 29, 1994, and October 1, 1995, for a total of approximately 28 days. Tr. 197-211, 219-35, 279-88. Her asthma attacks appear to be triggered by a variety of environmental factors, including smoke, dust, sudden changes in weather conditions or air temperature, chemicals, pet dander, and pollen. Tr. 61-62, 202, 228, 250. To control her asthma she regularly takes Prednisone and uses inhalers that deliver doses of Atrovent, Azmacort, and Proventil. Tr. 219. Thorpe also has been prescribed a variety of medications in response to her chronic hepatitis and back pain. Tr. 219.
[¶3] At the administrative hearing held on August 19, 1996, Thorpe testified that she is always short of breath and suffers at least two "bad [asthma] attacks" each month. Tr. 60. These episodes, Thorpe stated, sometimes last up to two hours, though they may be more severe if she has been physically active prior to the attack. Tr. 60-61. Thorpe also testified that she has difficulty catching her breath when walking more than a block or climbing a flight of stairs. Tr. 75.
[¶4] In addition to Thorpe's testimony, the ALJ also questioned psychologist Dr. Douglas J. Wessel, and vocational expert Dennis Parker. Dr. Wessel's remarks focused exclusively on the mental heath status of Thorpe. In this regard, Wessel testified that he believed Thorpe did not suffer from any psychological impairment severe enough to be recognized by the Secretary under the mental health listings. Tr. 94; see also 20 CFR Pt. 404, Subpt. P, App. 1§ 12.
[¶5] Dennis Parker testified in response to a series of hypotheticals provided by the ALJ designed to determine the number of jobs in which Thorpe could still work. In the third hypothetical which the ALJ ultimately adopted, Parker was asked to assume that Thorpe could occassionally lift and carry 50 pounds, frequently lift and carry 25 pounds, as well as stand, walk, and sit with normal breaks. For this hypothetical, Parker was to also assume that Thorpe suffered from no manipulative, visual, or communicative limitations, although she needed to avoid dusty, smoky areas or areas with a high degree of animal dander or other lung irritants. Tr. 108-109. In response to these limitations, Parker stated that a person with Thorpe's past skills and work experience, as well as physical limitations, could find work as a jewelry bench worker, surveillance system monitor, and telephone solicitor.(fn2)
[¶6] Following her application for social security benefits, Thorpe was examined by Dr. Steven Goff. On April 20, 1995, Dr. Goff diagnosed Thorpe as having a history of active hepatitis and suffering from severe asthma, chronic pain, and recurrent tendinitis in her wrist and shoulder. Tr. 214. Goff noted that Thorpe's severe asthma caused her the most limitation as it resulted in a significant shortness of breath and very poor endurance. Tr. 213-14. On June 23, 1995, Thorpe's medical records were also reviewed by Dr. Garrestt Chalmerr on behalf of Disability Determination Services. Tr. 134-40. Dr. Chalmerr determined that Thorpe's alleged symptoms were disproportionate to the expected severity or expected duration of her medical impairments as reflected in her medical records. Tr. 139. Dr. Chalmerrs further noted in his report that a pulmonary study conducted on March 9, 1995, showed that Thorpe's pulmonary functions were "well above listed standards." Tr. 139.
III. DECISION BY THE ALJ
[¶7] In assessing the sequential process(fn3) which is required when determining if an individual is disabled and thus entitled to SSI benefits, the ALJ first concluded that Thorpe had not engaged in substantial gainful activity at any time relevant to his decision. Second, the ALJ concluded that Thorpe's asthma and obesity, either alone or in combination, should be considered a severe impairment, although he found that the ailments did not meet or equal one of the impairments outlined in the Listing of Impairments, 20 CFR Pt. 404, Subpt. P, App. 1 §§ 1.00 et seq. (1997): "Claimant's impairments, including asthma and obesity ... are not accompanied by clinical signs and findings the same as, or medically equal to, an impairment listed in Appendix 1, Subpart P, Regulation No. 4." Tr. 34. The ALJ also found that Thorpe's hepatitis, affective disorder, and anxiety disorder could not be considered severe, as these problems only slightly affected her ability to work. Tr. 34. Next, the ALJ noted that Thorpe was a "younger individual" with a high school education and a poor earnings record. On this basis he concluded that "it is unclear if any of her work can be considered 'relevant,'" and he acknowledged that the burden of proof accordingly shifted to the Commissioner to show that Thorpe, despite her severe impairments, still had a residual capacity to perform a significant number of jobs in the national economy. Tr. 41, 43; see also 20 CFR § 416.929.
[¶8] Citing Polaski v. Heckler, 739 F2d 1320 (8th Cir. 1984) (subsequent history omitted), the ALJ outlined the relevant factors to be considered when evaluating a claimant's subjective complaints of pain and disability.(fn4) Tr. 34. Once done, the ALJ went on to examine the testimony of Thorpe as well as her relevant medical records, before concluding that "[her] statements are generally sincere but do not outweigh the lack of supporting medical evidence and do not establish disability within the meaning of the Act. Claimant's statements are considered out of proportion of [sic] the medical evidence." Tr. 37.
[¶9] In the first part of his opinion, the ALJ reiterated Thorpe's testimony in regard to her alleged impairments in great detail, spending a considerable amount of time recounting Thorpe's own statements regarding her asthma. The ALJ also pointed out that Thorpe did not appear to have any coughing or breathing problems at the hearing. From this testimony, as well as the record, the ALJ ultimately concluded in regard to her asthma, that Thorpe had "not consistently followed the advice of treating professionals regarding smoking, pet exposure or her medication regimen." Tr. 37.
[¶10] Citing the medical record, the ALJ then concluded Thorpe had typical asthma, made "worse relative to smoking and pets." Specifically, the ALJ pointed to the medical records from Thorpe's hospital admittance of November 30, 1994, which indicated that at the time of her admission she was suffering from dangerous asthma attacks and still smoking (though smoking was not cited as the cause of the attacks). The ALJ also examined the medical records from Thorpe's March 1995 hospital admission, again due to severe asthma attacks. Here the ALJ noted the presence of pets in Thorpe's house, as well as her smoking habit. However, the ALJ also admitted that the medical records cited weather changes as a cause of Thorpe's severe asthma attacks and chronic bronchial infections. Finally, the ALJ examined the medical records regarding Thorpe's April 1995 hospital stay. Here, the ALJ again acknowledged that, although Thorpe's asthma is generally controlled with medication, it was exacerbated by the spring weather. Turning to follow-up records, the ALJ pointed to a "flare-up" of Thorpe's asthma which occurred in August 1995, despite the fact that Thorpe had quit smoking and was following her medication regiment. Tr. 39. The medical records cite humidity as the cause of this severe attack. Despite this litany of asthmatic problems, caused by a variety of factors, the ALJ ultimately found that Thorpe's asthma does not meet or equal any listed impairment, though he never specifically addressed a particular listing relevant to Thorpe's asthma. See 20 CFR Pt. 404, Subpt. P, App. 1 §§ 1.00 et seq.
IV. STANDARD OF REVIEW
[¶11] The decision of the ALJ must be upheld if it is supported by substantial evidence in the record as a whole. 42 USC § 405(g); Metz v. Shalala, 49 F3d 374, 376 (8th Cir. 1995) (citing Sullins v. Shalala, 25 F3d 601, 603 (8th Cir. 1994), cert. denied, 573 U.S. 1076, 115 S. Ct. 722, 130 L. Ed. 2d 627 (1995)); Smith v. Shalala, 987 F2d 1371, 1373 (8th Cir. 1993). Substantial evidence is less than a preponderance, but enough evidence that a reasonable mind might find it adequate to support the conclusion. Fines v. Apfel, 149 F3d 893 (8th Cir. 1998) (citing Oberst v. Shalala, 2 F3d 249, 250 (8th Cir. 1993)). See also Shannon v. Chater, 54 F3d 484, 486 (8th Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971)); Onstead v. Sullivan, 962 F2d 803 (8th Cir. 1992) (quoting Whitehouse v. Sullivan, 949 F2d 1005, 1007 (8th Cir. 1991)). Review by this Court extends beyond a limited search for the existence of evidence supporting the Commissioner's decision to include giving consideration to evidence in the record which fairly detracts from the decision. Brockman v. Sullivan, 987 F2d 1344, 1346 (8th Cir. 1993); Locher v. Sullivan, 968 F2d 725, 727 (8th Cir. 1992); Turley v. Sullivan, 939 F2d 524, 528 (8th Cir. 1991).
[¶12] However, the Court's role under section 405(g) is to determine whether there is substantial evidence in the record as a whole to support the decision of the Commissioner and not to reweigh the evidence or try the issues de novo. Murphy v. Sullivan, 953 F2d 383, 384 (8th Cir. 1992). Furthermore, a reviewing court may not reverse the Commissioner's decision "merely because substantial evidence would have supported an opposite decision." Woolf v. Shalala, 3 F3d 1210, 1213 (8th Cir. 1993); Smith v. Shalala, 987 F2d at 1374 (citing Locher, 986 F2d at 727 (quoting Baker v. Heckler, 730 F2d 1147, 1150 (8th Cir. 1984))). The Court must review the Commissioner's decision to determine if an error of law has been committed. Smith v. Sullivan, 982 F2d 308, 311 (8th Cir. 1992); Nettles v. Schweiker, 714 F2d 833, 836 (8th Cir. 1983). The Commissioner's conclusions of law are only persuasive, not binding, on the reviewing court. Smith v. Sullivan, 982 F2d at 311; Satterfield v. Mathews, 483 F. Supp. 20, 22 (E.D. Ark. 1979), aff'd per curiam, 615 F2d 1288, 1289 (8th Cir. 1980). As long as the ALJ's decision is supported by substantial evidence, then this Court cannot reverse the decision of the ALJ even if the Court would have decided it differently. Smith v. Shalala, 987 F2d at 1374.
[¶13] For Thorpe to be eligible for SSI, she must first be determined to be under a disability. A disability is defined as:
[an] 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 months.
42 USC § 423(d)(1). In determining when a disability has occurred in a particular case, the ALJ must follow the requisite five steps.(5) See Evaluation of Disability Rule, 20 CFR § 404.1520 (1997). Thorpe urges this Court to reverse her case and award her SSI benefits. Specifically, Thorpe has presented three objections to the ALJ's conclusions: (1) that the ALJ erroneously concluded that Thorpe did not have a Listed Impairment as outlined by 20 CFR Pt. 404, Subpt. P, App. 1 §§ 1.00 et seq. ("Listing of Impairments"); (2) that the ALJ improperly evaluated Thorpe's subjective complaints; and (3) that the ALJ improperly relied upon a defective hypothetical question propounded to the vocational expert.
[¶14] Upon a careful review of the entire record, this Court concludes that while the ALJ's findings as to the severity of Thorpe's other alleged impairments is clearly supported by substantial evidence on the record as a whole, the ALJ did fail to develop the medical record adequately concerning Thorpe's asthma. Brissette v. Heckler, 730 F2d 548, 549 (8th Cir. 1984); Warner v. Heckler, 722 F2d 428, 431 (8th Cir. 1983). Although the ALJ repeatedly noted Thorpe's extensive history of severe asthma attacks, he concluded that her impairments did not meet or equal any of the enumerated Listing of Impairments. However, in summarily dismissing Thorpe's asthma as not disabling, the ALJ made no attempt to analyze Thorpe's well- documented asthma attacks under the listing for asthma found at 20 CFR Pt. 404, Subpt. P, App. 1 § 3.03 ("Listing 3.03"). Because this Court remands on this issue alone, it does not consider plaintiff's second and third arguments.
[¶15] Social Security regulations provide that if a claimant suffers from one of the enumerated listed impairments, she will be determined to be disabled without considering age, education, and work experience. 20 CFR § 404.1520(d). Listing 3.03 provides, in pertinent part:
3.03 Asthma. With
A. Chronic asthmatic bronchitis. Evaluate under the criteria for chronic obstructive pulmonary disease in 3.02A; Or
B. Attacks (as defined in 3.00C), in spite of prescribed treatment and requiring physical intervention, occurring at least once every 2 months or at least six times a year. Each in-patient hospitalization for longer than 24 hours for control of asthma counts as two attacks, and an evaluation period of at least 12 consecutive months must be used to determine the frequency of attacks.
C. Attacks of asthma . . . are defined as prolonged symptomatic episodes lasting one or more days and requiring intensive treatment, such as intravenous bronchodilator or antibiotic administration or prolonged inhalational bronchodilator therapy in a hospital, emergency room or equivalent setting. The medical evidence must also include information documenting adherence to a proscribed regimen of treatment as well as a description of physical signs.(fn6) 20 CFR Pt. 404, Subpt. P, App. 1 § 3.03A-C (emphasis added).
[¶16] Although the ALJ summarily found that Thorpe's severe asthma attacks did not meet or equal a listed impairment, a review of the administrative record as a whole provides some basis for a finding that Thorpe did in fact meet or equal the listing for asthma attacks. Listing 3.03. First, it is clear from the record that Thorpe's asthma attacks have required medical intervention in the form of three extended hospital stays, each lasting for nine or more days. These hospital stays meet the Listing 3.03 requirement that the claimant must suffer from "6 attacks"(fn7) within a ten-month span. The record also shows that Thorpe's attacks required extensive treatment including IV Solu-Medrol, IV antibiotics, nebulizer treatments, parenteral steriods, and beta II inhalers. Tr. 197, 219, 223, 280. Moreover, the medical evidence in the record reveals that Thorpe suffered these attacks in spite of prescribed treatment. Prior to and in between each attack resulting in hospitalization, Thorpe consistently used her inhalers and her proventil nebulizers. Tr. 201, 225. The hospital admission records taken during Thorpe's April admission also state: "She did not run out of her medications and has been taking her medications faithfully. Prior to coming into the hospital she did take her nebulizer one right after the other, but to no avail." Tr. 228.
[¶17] The ALJ's opinion acknowledged that Thorpe was hospitalized three times for asthma attacks over a 10 month period between November 29, 1994, and October 1, 1998, for a total of 29 days. The ALJ also acknowledged the hospital records that chronicled Thorpe's dates of treatment, clinical findings, types of treatments, and her clinical responses to those treatments. The ALJ's continued reference throughout his opinion to Thorpe's smoking habit and the presence of pets in the house indicates that it was the ALJ's opinion that these were the chief cause of her asthma attacks. This averment is speculative at best, and does not eliminate the ALJ's duty to evaluate Thorpe's asthma in light of Listing 3.03. Jennings v. Secretary of Dep't. of Health & Human Services, 770 F2d 747, 748 (8th Cir. 1985) (holding that ALJ erred in failing to consider whether claimant's asthma condition met or equaled the criteria in the listing of impairments or to develop the record on that point); see also Sird v. Chater, 105 F3d 401 (8th Cir. 1997) (holding that the ALJ erred in not finding claimant's condition met the requirements of a listing).
[¶18] While it is true that Thorpe continued to smoke for a time after her treating physicians recommended she quit, the ALJ acknowledged that she did eventually quit. In fact, she was not smoking nor did she have any pets in the house prior to her last hospitalization. Moreover, none of the medical evidence in the record points to smoking as the "cause" of her asthma. To the contrary, much of the medical records cite changes in weather and temperature as the catalysts for her attacks. Nonetheless, the ALJ is required to evaluate a claimant's condition based upon the entire record. Metz, 49 F3d at 376. Further, the ALJ must consider, with some specificity, the relevant Listing of Impairments as they pertain to the claimant's alleged disabilities. See Williams v. Bowen, 879 F2d 447 (8th Cir. 1989). Such was not done in this case. The ALJ failed to consider the criteria discussed above or to develop the record on this point. This Court finds that the ALJ's attempt to disregard Thorpe's asthma attacks, based solely on her apparent lack of breathing problems at the administrative hearing, her past smoking habit, and the presence of pets in her house, to be an unconvincing basis for denying SSI benefits, when decided without any analysis of Thorpe's asthma under Listing 3.03. Thus remand is needed for a further hearing on the precipitating causes and aggravating factors of Thorpe's attacks. The ALJ should also compare Thorpe's asthma attacks to the criteria in Listing 3.03.
[¶19] Accordingly, it is hereby
[¶20] ORDERED that the Commissioner's motion for summary judgment (Docket #14) is denied.
[¶21] IT IS FURTHER ORDERED that Thorpe's motion seeking reversal of Commissioner's decision (Docket #11) is denied. However, the case shall be remanded for further consideration of the evidence in accordance with this opinion.
1. Exacerbation of asthma are severe asthma attacks that result in labored breathing and wheezing due to spasmodic contraction of the bronchi. Dorland's Illustrated Medical Dictionary, 1518 (28th ed. 1994).
2. According to Parker, all three jobs exist in significant numbers in the national and regional economy: jewelry bench worker (3,951 in the regional economy and 1,988,000 in the national economy); surveillance system monitor (222 in the regional economy and 45,324 in the national economy); and telephone solicitor (400 in the regional economy and 1,987,000 in the national economy). Tr. 109.
3. The steps are summarized as follows:
(1) First, a determination is made whether claimant is currently engaged in substantial gainful activity; if so, she must be found not disabled.
(2) If claimant is not engaged in substantial gainful activity, the next question is whether she is suffering from a severe impairment, defined as one that significantly limits the ability to perform basic work-related functions. If a severe impairment is not found, claimant must be found not disabled.
(3) If there is a severe impairment, and it is one listed in Appendix 1 to Subpart P, claimant is found disabled on the medical evidence alone. [ See Appendix 1 to Subpart P of Part 404, 20 CFR §§ 404.1501 et seq. (1996)].
(4) If the impairment is not listed in Appendix 1, the next inquiry is whether claimant can perform relevant past work. If she can, a finding of no disability is required.
(5) Finally, if claimant cannot perform relevant past work, the question then becomes whether she can nevertheless do other jobs that exist in the national economy, despite her having a severe impairment that prevents return to her previous work.
McCoy v. Schweiker, 683 F2d 1138, 1141-42 (8th Cir. 1982). See also 20 CFR § 404.1520; 1 Harvey L. McCormick, Social Security Claims and Procedures § 410, at 346 (4th ed. 1991).
4. The factors to be used in an ALJ's determination of a claimant's credibility were outlined in the well-cited case of Polaski v. Heckler, 739 F2d 1320, 1322 (8th Cir. 1984) (subsequent history omitted):
The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant's prior work record, and observations by third parties and treating and examining physicians relating to such matters as:
1. The claimant's daily activities;
2. the duration, frequency and intensity of the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of medication;
5. functional restrictions.
Polaski, 739 F2d at 1322.
5. See footnote 3.
6. Section 3.03C also provides: When a respiratory impairment is episodic in nature, as can occur with exacerbation of asthma ... the frequency and intensity of episodes that occur despite prescribed treatment are often the major criteria for determining the level of impairment. Documentation for these exacerbations should include available hospital or emergency facility, and/or physician records indicating the dates of treatment; clinical and laboratory findings on presentation, such as results of spirometry and arterial blood gas studies; the treatment administered; the time period required for treatment; and the clinical response.
7. Each hospital stay lasting for more than 24 hours is to be counted as two visits. See Listing 3.03B.