ANDREW M. CONDE,
Plaintiff,
v.
KENNETH S. APFEL,
Commissioner of Social Security,
Defendant.
[1999 DSD 30]
United States District Court
District of South Dakota-Western Division
CIV. 99-5007
MEMORANDUM OPINION AND ORDER ON REMAND
Catherine R. Enyeart, Hot Springs, SD
Attorney for plaintiff
Diana J. Ryan, U.S. Attorney's Office, Rapid City, SD
Attorney for defendant
Dated Oct 18, 1999
Richard H. Battey, Senior District Judge
PROCEDURAL HISTORY
[¶1] In an opinion dated September 16, 1997, Administrative Law Judge Wayne N. Araki ("ALJ") rendered a decision allowing in part, and denying in part, Andrew M. Conde's ("Conde") claim for disability benefits under Title II of the Social Security Act ("the Act"), 42 USC §§ 401-433. Conde's request for Appeals Council review was denied. On January 22, 1999, Conde filed a complaint with this Court. Pursuant to this Court's briefing schedule, Conde filed a motion for summary judgment (Docket #12) urging that the ALJ's decision be reversed and that benefits be awarded for the period between May 1991 and September 1995. In the alternative, Conde asks that the case be remanded to the ALJ for further proceedings. On October 11, 1999, the Commissioner of Social Security ("Commissioner") in turn requested summary judgment (Docket #15). This Court has jurisdiction to proceed pursuant to 42 USC § 405(g).
FACTS
[¶2] Conde was born on August 21, 1949, and was 48 years old at the time of his administrative hearing. AR 27. Conde has a high school education. AR 28. Prior to the onset of his heart condition, Conde owned his own business setting up mobile homes. AR 35-37. Conde has also worked as a janitor and housekeeper. AR 39-40.
[¶3] Conde suffers from high-grade multiple-vessel coronary artery disease, diabetes, hypertension, and obesity. AR 17-18. In 1991, Conde admitted himself to the hospital after a period of prolonged heart pains. Following cardiac catheterization,(fn1) Conde was diagnosed with a 100 percent occlusion of the left anterior descending coronary artery and a 100 percent occlusion of the right coronary artery. He underwent successful angioplasty in May 1991, which relieved the blockage to his left anterior descending coronary artery. AR 32, 364. Because the right coronary artery was determined to be a "good caliber vessel" with "excellent collateralization" (side branching vessels), it was not subject to the angioplasty procedure and was allowed to remain 100 percent occluded. Despite the angioplasty, Conde's angina(fn2) resurfaced within a year of the procedure. AR 52-53, 210, 214.
[¶4] Throughout the years following the angioplasty, Conde filled and refilled numerous prescriptions for nitroglycerin tablets in an attempt to control his angina problems.(fn3) AR 53, 210. By September 1995, Conde's difficulties had worsened to the point of requiring hospitalization, and on September 19, 1995, he underwent quadruple coronary bypass surgery. AR 216.
[¶5] On June 23, 1997, both Code and his wife, Theresa Conde, testified at the administrative hearing. Conde testified that he was unable to work following his 1991 angioplasty because his condition "took a lot out of ... [him]" and due to problems associated with his heavy reliance on nitroglycerin. AR 52. Similarly, Mrs. Conde testified that her husband's condition remained improved for no more than a month and a half following the 1991 angioplasty, whereupon Conde again began to suffer serious angina (only relieved by heavy doses of nitroglycerin), shortness of breath, skin discoloration, sleepless nights, forgetfulness, and general fatigue and exhaustion. AR 65. She further stated that these symptoms continued until Conde's September 1995 bypass surgery. AR 65.
DECISION BY THE ALJ
[¶6] In assessing the sequential process(fn4) which is required when determining if an individual is disabled pursuant to the Social Security Act, the ALJ first concluded that Conde had not engaged in any substantial gainful activity since May 1, 1991. AR 13. At the next step, the ALJ found that Conde's diabetes, high blood pressure, and coronary artery disease, though severe, were not attended with those specific clinical signs or diagnostic findings listed in, or medically equal to one listed in the regulations. See 20 CFR Pt. 404, Subpt. P, App. 1 (1998) (Listing of Impairments).
[¶7] Next, the ALJ considered whether or not Conde could return to his past relevant work as a housekeeper or janitor. AR 16. After discrediting Conde's testimony regarding the fatigue and pain engendered by his condition prior to the 1995 bypass surgery, the ALJ found that Conde's impairments did not prevent him from returning to his past relevant work as a housekeeper prior to 1995.(fn5) The ALJ made no determination regarding the credibility of Conde's wife. Given these facts, the ALJ found that Conde (prior to 1995), could have returned to his past relevant work as a housekeeper, and hence, was not disabled under the Act between May 1991 and September 1995.(fn6)
IV. STANDARD OF REVIEW
[¶8] 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 US 1076, 115 SCt 722, 130 LEd2d 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 US 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).
[¶9] However, the Court's role 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.
V. DISCUSSION
[¶10] For Conde to be eligible for disability benefits, he must be under a disability at the time he was insured. See 42 USC § 423(a)(1)(A)-(D). 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.
Id. § 423(d)(1). In this case, the ALJ determined that Conde was not under a disability prior to September 11, 1995, because he was able to perform his past relevant work as a housekeeper. [¶11] Conde urges this Court to reverse the decision of the ALJ and remand the case to the Commissioner for its consideration of new and material evidence. Additionally, Conde suggests that the ALJ committed reversible error by (1) failing to explain, at step three of the sequential process, why Conde's heart condition did not meet the listed impairment for ischemic heart disease; and (2) in concluding, at step four of the sequential process, that Conde could return to his past relevant work as a housekeeper.(fn7) Because this Court agrees with Conde, the case shall be remanded to the Commissioner for further consideration of the record consistent with this opinion.
[¶12] New and Material Evidence
[¶13] Conde suggests that his case should be remanded for consideration of new and material evidence. The facts of this case, however, simply do not posit the typical procedural questions often generated by newly submitted evidence. Following the hearing before the ALJ, Conde's counsel learned of the existence of extensive pharmacy records reflecting Conde's massive use of Nitrostat (nitroglycerin) and Cardizem between 1991 and 1995. These records appeared to have been discovered following Conde's unsuccessful attempts to acquire his treating cardiologist's clinical notes for the same period. Conde's counsel obtained the pharmacy records intending that they be submitted as new and material evidence for Appeals Council consideration. The Appeals Council, however, rendered its decision denying review before Conde could submit the pharmacy records for consideration.
[¶14] Ordinarily, when a social security claimant seeks to present medical evidence to the district court not previously submitted to the Appeals Council, the claimant must show that the evidence is "material and that there is 'good cause for the failure to incorporate such evidence into the record in a prior proceeding.'" Mackey v. Shalala, 47 F3d 951, 952 (8th Cir. 1995) (quoting 20 CFR § 405(g)); see also Woolf v. Shalala 3 F3d 1210, 1215 (8th Cir. 1993). For such newly submitted evidence to be deemed "material" it must be non-cumulative, relevant, and probative of the claimant's condition for the time period for which benefits were denied. See Jones v. Callahan, 122 F3d 1148, 1154 (8th Cir. 1997). In addition, it must be "reasonably likely that the Commissioner's consideration of this new evidence would have resulted in an award of benefits." Id.
[¶15] In contrast, when the new evidence is first submitted to the Appeals Council, rather than the district court, the Appeals Council need only determine whether or not the evidence is material. If found to be material, the new evidence is considered (along with the entire record) in determining whether or not the Appeals Council will review claimant's case. See 20 CFR § 404.970(b). Finally, if the Appeals Council chooses to consider the new evidence, but nonetheless declines review, the district court must determine whether the ALJ's decision is supported by substantial evidence in the record as a whole, including the new evidence deemed material by the Appeals Council. See Mackey, 47 F3d at 953; see also Riley v. Shalala, 18 F3d 619, 622 (8th Cir. 1994).
[¶16] Because the Appeals Council rendered its decision before Conde had an opportunity to submit the pharmacy records, neither of these two standards are completely applicable in this case. Nonetheless, even under the most stringent of the two standards it appears to this Court that the newly submitted pharmacy records should be considered by the Court in determining whether the ALJ's decision is supported by substantial evidence.
[¶17] The pharmacy records reveal that during the time period at issue in this case (May 1991 - September 1995), Conde received thirty-five separate prescriptions for nitroglycerin for control of his increasing angina. Upon review of the entire record in this case, including the transcript of the administrative hearing, this Court concludes that the pharmacy records are non-cumulative, relevant, and probative of Conde's heart problems for the relevant time period. Further, Conde's counsel has presented, by way of affidavit, a sufficient showing of good faith for her failure to present the pharmacy records at an earlier date. Finally this Court finds it reasonably likely that the Commissioner's consideration of the pharmacy records would result in an award of benefits because the new evidence (when viewed in conjunction with the entire medical record) tends to establish that Conde was suffering from ischemic heart disease (a listed impairment) between May 1991 and September 1995. In view of this fact, the Court shall consider the pharmacy records in determining whether or not the ALJ's decision was based upon substantial evidence in the record as a whole.
[¶18] Failure to Address Listing for Ischemic Heart Disease
[¶19] Next, Conde suggests that the ALJ committed reversible error by failing to explain, at step three of the sequential process, why Conde's heart condition did not meet the listed impairment for ischemic heart disease found at 20 CFR Pt. 404, Subpt. P, App. 1 § 4.04(C) ("Listing 4.04(C)"). Social Security regulations provide that where a claimant suffers from one of the enumerated listed impairments, he will be determined to be disabled under the Act without considering age, education, and work experience. See 20 CFR § 404.1520(d); see also Flanery v. Chater, 112 F3d 346, 349 (8th Cir. 1997) (citing Braswell v. Heckler, 733 F2d 531, 533 (8th Cir. 1984)). The listing for ischemic heart disease states in pertinent part:
4.04 Ischemic heart disease, with chest discomfort associated with myocardial ischemia, as described in 4.00E3, while on a regimen of prescribed treatment . . . [w]ith one of the following:
C. Coronary artery disease, demonstrated by angiography (obtained independent of Social Security disability evaluation), and an evaluating program physician, preferably one experienced in the care of patients with cardiovascular disease, has concluded that performance of exercise testing would present a significant health risk to the individual, with both 1 and 2:
1. Angiographic evidence revealing:
b. 70 percent or more narrowing of another nonbypassed coronary artery; and
2. Resulting in a marked limitation of physical activity, as demonstrated by fatigue, palpitation, dyspnea, or anginal discomfort on ordinary physical activity, even though the individual is comfortable at rest.
20 CFR Pt. 404, Subpt. P, App. 1 § 4.04(C).
[¶20] Review of the medical records in this case, including the newly presented pharmacy records discussed above, reveals that Conde suffered, to some degree, from ischemic heart disease shortly after May 1991 until his quadruple bypass surgery in September 1995. This determination is supported by the conclusion of Conde's treating doctors who determined that both his right coronary artery and his left descending coronary artery were 100 percent occluded no later than May 1991. AR 32, 364. While the left descending coronary artery was unblocked by the angioplasty procedure, the right coronary artery was allowed to remain 100 percent occluded. A 100 percent occlusion of the right coronary artery is sufficient to meet the requirement found at Listing 4.04(C)(1)(b) that the claimant suffer from at least a "70 percent or more narrowing of another nonbypassed coronary artery."
[¶21] The next substantive requirement of Listing 4.04(C) also appears to be present in this case. Both Conde and his wife testified that Conde suffered from a marked limitation of physical activity beginning sometime after Conde's angioplasty procedure in May 1991 and up until his quadruple bypass in September 1995. This testimony is supported by two different medical reports. In a report written by Dr. Mark Gordon in September 1995, Dr. Gordon states: "Following angioplasty, the patient had been free of chest pain for approximately one year and then began having more exertional chest pains." AR 210. In a report written the next day by Dr. Kenneth Stahl, it was noted: "The patient had a period of several months after his last angioplasty that was pain-free, and then began having exertional chest pain." AR 214.
[¶22] While the ALJ discredited Conde's testimony in regard to the fatigue and angina he suffered between 1991-95, the pharmacy records (when viewed in conjunction with the medical evidence as a whole) tend to establish the second requirement found at Listing 4.04(C)(2) - that is, that Conde suffered from a marked limitation of physical activity as demonstrated by fatigue or "anginal discomfort on ordinary physical activity." In Conde's case, the pharmacy records reveal that he was taking an average of three nitroglycerin tablets each day for his angina discomfort, beginning one month after his angioplasty and continuing until his quadruple bypass in September 1991.
[¶23] While it is true that the claimant has the burden of proving that he meets or equals an impairment in the listings, Bowen v. Yuckert, 482 US 137, 140-42, 107 SCt 2287, 96 LEd2d 119 (1987), where there is ample evidence supporting, at least at a threshold level, each of the elements of Listing 4.04(C),(8) the ALJ is required to do more than provide a mere blanket reference to the listings before finding that the claimant's heart disease did not meet or equal a listed impairment. See 42 USC § 423(d)(1)(A); 20 CFR §§ 404.953, 404.1520. Some effort must be made to identify the listed impairments suggested by the evidence in the record, and the ALJ should provide some explanation regarding why he has chosen to reject these impairments. See id. Accordingly, the case shall be remanded for the ALJ to set out his specific findings in regard to step three of the sequential process.
[¶24] Past Relevant Work
[¶25] Finally, Conde maintains that the ALJ erred in deciding that Conde retained the residual functional capacity to perform his past relevant work. In this case, the ALJ began his analysis by finding that Conde had not engaged in substantial gainful activity since May 1, 1991. AR 13, 17. Despite this finding, the ALJ subsequently determined that between May 1991 and September 1995, Conde had a residual functional capacity to enable him to perform his past relevant work as a housekeeper - a position maintained by Conde for only seven weeks in 1995. Because he found that Conde could perform his past relevant work, the ALJ denied Conde's claim for the period in question.
[¶26] In determining whether a claimant can perform his or her past relevant work, social security regulations provide that the ALJ should normally only consider work that meets the following requirements: (1) the claimant performed the work in the prior 15 years; (2) the work lasted long enough for the claimant to learn to do it; and (3) the work was "substantial gainful activity." See 20 CFR § 416.965(a); Rater v. Chater, 73 F3d 796, 798 (8th Cir. 1996). In this case, the ALJ determined on the one hand that Conde had not engaged in any substantial gainful activity since May 1, 1991 - while simultaneously finding that Conde had engaged in past relevant work during this same time period. Because the ALJ expressly concluded that Conde's job as a housekeeper was not substantial gainful activity, it was an error for him to also find that the housekeeping job was past relevant work.(fn9) Accordingly, upon remand the ALJ shall reconcile these two contradictory conclusions.
CONCLUSION
[¶27] Upon consideration of the entire administrative record in this case, and after review of Conde's pharmacy records pertaining to prescriptions filled between 1991-95, the Court concludes that the ALJ failed to provide more than a conclusory statement regarding the listing of impairments found at 20 CFR Pt. 404, Subpt. P, App. 1§ 4.04(C), and failed to reconcile his contradictory findings regarding Conde's ability to perform his past relevant work. Therefore, it is hereby
[¶28] ORDERED that Conde's motion seeking reversal of the ALJ's decision (Docket #12) is granted. The decision of the ALJ is reversed and the case is remanded for further administrative proceedings consistent with this opinion.
[¶29] IT IS FURTHER ORDERED that the Commissioner's motion for summary judgment (Docket #15) is denied.
Footnotes
1. Cardiac catheterization is the process by which a small catheter is passed through a vein in the patient's arm or leg and into his heart. The technique is used for the detection of cardiac abnormalities. See Dorland's Illustrated Medical Dictionary 280 (28th Ed. 1994).
2. A paroxysmal thoracic pain, often radiating to the arms, particularly the left, sometimes accompanied by a feeling of suffocation and impending death; often due to problems related ischemia of the myocardium. See Dorland's 77.
3. Nitroglycerin is frequently used to treat angina. See Dorland's 1140.
4. The steps are summarized as follows:
(1) First, a determination is made whether claimant is currently engaged in substantial gainful activity; if so, he must be found not disabled.
(2) If claimant is not engaged in substantial gainful activity, the next question is whether he 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.].
(4) If the impairment is not listed in Appendix 1, the next inquiry is whether claimant can perform relevant past work. If he can, a finding of no disability is required.
(5) Finally, if claimant cannot perform relevant past work, the question then becomes whether he can nevertheless do other jobs that exist in the national economy, despite his having a severe impairment that prevents return to his 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).
5. In assessing Conde's credibility, the ALJ considered Conde's apparent failure to seek ongoing treatment between 1991 and 1995, Conde's own statement made in 1995 that he was free of chest pain for at least one year following his 1991 angioplasty, and the fact that Conde attempted to dig post holes on the day of his 1995 hospital admission.
6. The position of housekeeper, the ALJ noted, falls within the light range of exertional level, requiring only that Conde had the "ability to lift and carry 10 pounds frequently and 20 pounds occasionally; stand and/or walk for a period of 6 hours in an 8 hour day with normal breaks; and no limitations other than the stated limitations in his ability to push and pull." AR 16.
7. Conde also argues that the ALJ committed error in failing to conduct a credibility assessment in conformance with the Polaski legal standard. In addition, Conde generally alleges that the ALJ's decision was unsupported by substantial evidence in the record as a whole. Because this Court finds reason to remand based upon issues one and two, Conde's additional arguments need not be addressed by the Court.
8. By pointing to the evidence in the record pertaining to Conde's impairment, this Court does not mean to suggest that Conde is necessarily entitled to an outright award of benefits for the period in question; rather, this Court requires that the case be remanded for the ALJ to clearly evaluate whether or not Conde's condition meets or equals the listing for ischemic heart disorder found at Listing 4.04(C).
9. Once the claimant establishes that he cannot perform his past work, the burden shifts to the Secretary to show other jobs in the economy that the claimant is capable of performing. See Conley v. Bowen, 781 F2d 143, 146 (8th Cir. 1986) (per curiam). In this case, by erroneously finding that Conde was able to perform his past relevant work as a housekeeper, the Commissioner was improperly relieved of assuming his burden to show the existence of jobs in the national economy which Conde was capable of performing.
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