Cummings v. Apfel, 2000 DSD 30

MARY E. CUMMINGS,
Plaintiff,
v.
KENNETH S. APFEL,
Commissioner, Social Security Administration,
Defendant.
[2000 DSD 30]

United States District Court
District of South Dakota--Western Division
CIV 99-5076

MEMORANDUM OPINION AND ORDER ON REMAND

Catherine R. Enyeart,, Enyeart & Koehn, Hot Springs, SD
Attorney for Plaintiff

Diana J. Ryan, Assistant United States Attorney, Rapid City, SD
Attorney for Defendant

Filed July , 2000

Richard H. Battey, United States District Judge

I. PROCEDURAL HISTORY

[¶1] In an opinion dated January 6, 1998, JoAnn L. Anderson, an Administrative Law Judge ("ALJ"), determined that plaintiff Mary E. Cummings ("Cummings") became disabled on February 1, 1997. At the hearing Cummings alleged an onset date of August 1, 1991; however, the ALJ determined that Cummings was not disabled prior to February 1, 1997. Accordingly, Cummings was entitled to disability benefits under Title II of the Social Security Act ("the Act") as well as supplemental security income under Title XVI of the Act, 42 USC §§ 401-433; 1381-1383c commencing on February 1, 1997. Cummings then requested that the Appeals Council review the unfavorable portion of the ALJ's decision. On September 11, 1999, the Appeals Council declined review. On August 28, 1999, Cummings filed a complaint before this Court seeking review of the ALJ's decision. She now urges this Court to reverse decision of the ALJ as to the date of the onset of her disability. In the alternative, Cummings asks that the case be remanded to the ALJ for further proceedings. The Commissioner of Social Security ("Commissioner") filed his response seeking summary judgment as a matter of law. Cummings has filed her reply. This Court has jurisdiction to proceed pursuant to 42 USC § 405(g).

II. FACTS

[¶2] Cummings was born on February 2, 1942, and is currently 58 years old. AR 37. She has a tenth-grade education and has not received her GED. AR 37-38. She has past work experience as a waitress, bartender, and seamstress. AR 165. Beginning in 1990, Cummings cared for mother-in-law for approximately 6 years.

[¶3] Cummings has alleged that she has been unable to work since August 1, 1991, due to neck, back, and knee impairments as well as the side effects of spironolactone. ^(fn1) TR 36, 44, 49, 55. However, Cummings has a limited treatment history for these alleged impairments. On November 11, 1995, Cummings' cervical spine was examined by Dr. Seljeskog. AR 194-197. Pursuant to Dr. Seljeskog's recommendations, on November 22, 1995, Cummings underwent a cervical diskectomy and fusion. AR 210-212. On March 20, 1996, Cummings was examined by Victoria Anderson, M.D., a consultive physician. TR 214. The examination revealed a limited range of motion in her cervical and lumber spine and abnormally large knee joints with decreased strength. AR 215. The X-ray report for this examination concluded that Cummings suffers from "[m]arked hypertrophic arthritis of the lumbar spine with disc degeneration at several levels." AR 218. The X-ray report also states that there are post surgical changes in the tibial tuberosity of Cummings right knee. AR 218.

[¶4] On January 17, 1996, Cummings applied for disability insurance benefits ("DIB") and on December 15, 1996, she applied for supplemental security income ("SSI"), alleging an inability to work since August 1, 1991. AR 15, 36. On July 7, 1997, a hearing was held before the ALJ. AR 29.

III. DECISION BY THE ALJ

[¶5] The ALJ evaluated each step of the requisite sequential process ^(fn2) to determine whether an individual is disabled and thus entitled to benefits. At step one, the ALJ found that Cummings had not been performing substantial gainful activity. AR 16. At step two, the ALJ determined that because Cummings has been unable to lift more than 20 pounds occasionally, she has had a severe impairment. AR 16. However, at step three the ALJ found that Cummings has never had a musculoskeletal impairment of listing level severity for any period of 12 continuous months. AR 16. Proceeding to step four, the ALJ found that Cummings was unable to perform her past relevant work. AR 19. Finally, at step five, the ALJ determined that because Cummings retained the ability to perform light work activity and that the Medical Vocational Guidelines (the "Grids") provided in 20 CFR Part 404, Subpt. P, App. 2 (1999) may be used to direct a finding in this case. AR 19. Accordingly, the ALJ concluded that regulations 404.1569 and 416.969 in conjunction with Rule 202.02 in Table No. 1 of Appendix 2, Subpart P, Regulations No. 4, require that Cummings be found disabled as of February 1, 1997. AR 22. The ALJ also concluded that prior to February 1, 1997, Regulations 404.1529 and 416.929 in conjunction with Rule 202.11 in Table No. 2 of Appendix 2, direct a finding of not disabled. AR 22.

[¶6] In making this determination, the ALJ found that claimant's subjective complaints were not credible. AR 20. Specifically, the ALJ stated that Cummings allegations of pain, weakness and fatigue which have allegedly prevented her from performing any work activity are inconsistent with the balance of the evidence on record. AR 20.

IV. STANDARD OF REVIEW

[¶7] 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 (8^th Cir 1995) (citing Sullins v. Shalala, 25 F3d 601, 603 (8^th 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 (8^th 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 (8^th Cir 1998) (citing Oberst v. Shalala, 2 F3d 249, 250 (8^th Cir 1993)). See also Shannon v. Chater, 54 F3d 484, 486 (8^th Cir 1995) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 LEd2d 842 (1971)); Onstead v. Sullivan, 962 F2d 803 (8^th Cir 1992) (quoting Whitehouse v. Sullivan, 949 F2d 1005, 1007 (8^th 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 (8^th Cir 1993); Locher v. Sullivan, 968 F2d 725, 727 (8^th Cir 1992); Turley v. Sullivan, 939 F2d 524, 528 (8^th Cir 1991).

[¶8] 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 (8^th 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 (8^th Cir 1993); Smith v. Shalala, 987 F2d at 1374 (citing Locher, 986 F2d at 727 (quoting Baker v. Heckler, 730 F2d 1147, 1150 (8^th 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 (8^th Cir 1992); Nettles v. Schweiker, 714 F2d 833, 836 (8^th 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

[¶9] Cummings has raised five issues in this case, they include: (1) the ALJ failed to identify all of her severe impairments at step 2 of sequential process; (2) the ALJ failed to order consultive exams for any of Cummings' impairments; (3) the ALJ inaccurately determined that Cummings' subjective complaints were not credible; (4) the ALJ formulation of Cummings' residual functional capacity ("RFC") is not supported by the record; and (5) because Cummings has non-exertional impairments, the ALJ's reliance on the grids at step five of the sequential process was error. See Plaintiff's Opening Memorandum ("Plaintiff's Brief") at 15. In response, defendant argues that the ALJ's determination is supported by substantial evidence on the record as a whole. See Defendant's Memorandum in Support of Motion for Summary Judgment ("Defendant's Brief") at 1-20. Therefore according to defendant, it is entitled to a judgment as a matter of law. See id. at 20. Because the Court agrees with Cummings that errors were committed during the 5-step sequential process, the case shall be remanded to the Commissioner for further consideration of the record consistent with this opinion.

Identification of Severe Impairments at Step Two

[¶10] Cummings contends that the ALJ failed to identify all of her severe impairments at step two of the sequential process. See Plaintiff's Brief at 15-17. Missing from the ALJ's findings, according to Cummings, are "the claimant's documented 'marked' hypertrophic arthritis and degenerative disk disease of the lumbar spine with congenitally small spinal canal, her post-surgical arthritis of bilateral knee joints, and side effects of Spironolactone." Plaintiff's Brief at 15. In response, defendant argues that the ALJ's had considered and discounted each of these impairments. See Defendant's Brief at 8-10.

[¶11] At step two of the sequential process the ALJ is to determine whether the claimant is suffering from a severe impairment, defined as one that significantly limits the ability to perform basic work-related functions. See McCoy v. Schweiker, 683 F2d 1138, 1141-42 (8^th Cir 1982). See also 20 CFR § 404.1520; 2 Harvey L. McCormick, Social Security Claims and Procedures § 8:34, at 534-35 (5^th ed. 1998). A determination at this step requires a careful evaluation of the medical findings that describe the impairment(s)." See S.S.R. No. 96-3p, 1996 WL 374181 * 2. The sequential evaluation process may only be terminated at step two when an impairment or combination of impairments would have no more than a minimal effect on the claimant's ability to work. See Johnson v. Apfel, 210 F3d 870, 874 (8^th Cir 2000).

[¶12] In this case, the ALJ determined that the claimant is suffering from "severe degenerative arthritis of the cervical area of the spine and a history of cervical decompression." AR 21. However, in her application for disability Cummings also alleged an impairment in her knees. AR 105. In addition, during the administrative hearing, the ALJ discussed how spironolactone, a diurectic that Cummings takes for high blood pressure, causes Cummings to use the restroom every 30 minutes. AR 50. The ALJ also mentioned that she considered the 1995 x-rays of Cummings' lumbar spine. AR 44. Nonetheless, the ALJ's opinion fails to discuss how Cummings alleged impairments to her knees and lumbar spine would have no more than a minimal effect on her ability to work. The opinion also fails to even mention the side effects of the spironolactone, despite testimony from the vocational expert that the alleged level of restroom breaks would have an effect on any job. AR 90. In light of the foregoing the Court shall remand this case to the Secretary to determine whether Cummings' alleged impairments are sufficiently severe to satisfy the "no more than a minimal effect on the ability to work" standard set forth in Johnson, 210 F3d at 874.

Consultive Examinations

[¶13] In her second point of error, Cummings states that the ALJ should have ordered a consultive exam for the following impairments: "1) inflammatory arthritis symptoms with positive laboratory finding (AR 375), 2) bilateral knee impairments, 3) leg pain and absent pulses coupled with x-ray findings of atherosclerosis of the aorta -- a common correlate of vascular disease and claudication, 4) hip pain, for which vascular cause was not ruled out, 5) congenitally small spinal canal, 6) persistent depression, and 7) side-effects of Spironolactone." Plaintiff's Brief at 17. In response, defendant argues that the record was reasonably complete without the requested consultive exams. See Defendant's Brief at 11. Therefore, according to defendant, the ALJ did not err by evaluating plaintiff's impairments without the consultive exams. See id.

[¶14] During the evaluative process the ALJ has a duty to develop a reasonably complete record. See Clark v. Shalala, 28 F3d 828, 830-31 (8^th Cir 1994). "The regulations, however do not require the Secretary or the ALJ to order a consultative evaluation of every alleged impairment. They simply grant the ALJ the authority to do so if the existing medical sources do not contain sufficient evidence to make a determination." Matthews v. Bowen, 879 F2d 422, 424 (8^th Cir 1989). The ALJ also has no obligation to investigate claims which were not presented at the time of the application for benefits and not offered at the hearing as a basis for disability. See Brockman v. Sullivan, 987 F2d 1344, 1348 (8^th Cir 1993).

[¶15] In this case, the Court notes that Cummings has a limited treatment history regarding her alleged impairments, thus leaving the disability examiners with little choice but to obtain consultative evaluations. This fact also militates against a finding of disability in and of itself. See Gwathney v. Chater, 104 F3d 1043, 1045 (8^th Cir.1997) ("[Claimant's] failure to seek medical assistance for her alleged physical and mental impairments contradicts her subjective complaints of disabling conditions and supports the ALJ's decision to deny benefits"). However, because of the errors committed at step two of the sequential process, the record is unclear as to whether the ALJ considered each of Cummings alleged impairments. Therefore upon remand, the ALJ should examine the record with respect to all of Cummings alleged impairments. During this examination, the ALJ should determine whether the record contains sufficient medical evidence to make an informed decision as to Cummings alleged impairments. See Matthews, 879 F2d at 424. Upon making this determination, the ALJ should order consultive exams for the impairments which lack the necessary medical evidence. See id.

Cummings' Credibility

[¶16] Cummings goes on to argue that the ALJ's credibility determination was based upon error. See Plaintiff's Brief at 19. In response, defendant argues that the ALJ properly discounted plaintiff's subjective complaints. See Defendant's Brief at 13.

[¶17] It is a well-settled principle that if there are any inconsistencies in the evidence as a whole, an ALJ is permitted to disbelieve a plaintiff's subjective complaints. See, e.g., Cruse v. Bowen, 867 F2d 1183, 1186 (8^th Cir 1989); Conley v. Bowen, 781 F2d 143, 147, (8^th Cir 1986); Polaski v. Heckler, 739 F2d 1320, 1322 (8^th Cir 1984). In making this determination, the ALJ must list specific reasons for the finding on credibility, supported by the evidence in the case record. See S.S.R. No. 96-7p, 1996 WL 374186 * 4.

[¶18] In this case, the ALJ determined that Cummings' subjective complaints were not credible. AR 21. However, as stated above, the Court has decided to remand this case back to the Commissioner. As this Court has already observed, errors were committed at step two of the sequential process and further consultive exams may be necessary. Therefore, Cummings credibility should be re-assessed after the ALJ has considered all of Cummings alleged impairments and has determined that the record is reasonably complete.

Formulation of RFC

[¶19] Cummings contends that the ALJ's determination of her RFC is not supported by substantial evidence. See Plaintiff's Brief at 23. Defendant's brief does not contain a response to this point of error.

[¶20] The claimant's RFC is the claimant's physical capacity to do work which is defined as sedentary, light, medium, heavy, or very heavy. See 20 CFR § 404.1567 (1999). The Commissioner bears the burden of establishing RFC by medical evidence. See Weiler v. Apfel, 179 F3d 1107, 1109 (8^th Cir 1999). In order to make a finding that an individual is capable of performing a full range of work at a given exertional level, it is necessary to assess the individual's capacity to engage in each of the functions contemplated by the exertional level. See S.S.R. No. 96-8p, 1996 WL 374184 * 3. Failure to make a function by function analysis can result in an ALJ overlooking some of the claimant's limitations. See id. at *3-4. In addition, the ALJ must also consider limitations and restrictions imposed by all of an individual's impairments, even those that are not severe. See id. at * 5

[¶21] In this case, the ALJ found that Cummings retained the ability to perform a full range of light work. ^(fn3) AR 21. However, the ALJ failed to discuss how she reached this conclusion. Specifically, the ALJ failed to assess Cummings' ability to perform each of the functions listed in the definition of light work. In addition, there is no indication in the record that the ALJ considered all of Cummings impairments in making the RFC determination. Accordingly, these shortcomings shall be rectified upon remand.

Reliance Upon the Grids

[¶22] Finally, Cummings argues that the ALJ committed error by relying upon the Grids at step five of the sequential process. See Plaintiff's Brief at 24. Specifically, Cummings argues that her non-exertional impairments do not match the Grids. See id. In response, defendant argues that the ALJ properly discounted Cummings subjective complaints and accurately applied the Grids. See Defendant's Brief at 19.

[¶23] According to the regulations, if the ALJ finds that the claimant has either no nonexertional impairments or insignificant nonexertional impairments, that do not limit the claimant's ability to do other work as defined by the guidelines, the ALJ may use the Grids to meet the burden at step five. See Naber v. Shalala, 22 F3d 186, 189 (8^th Cir 1994); Russell v. Sullivan, 950 F2d 542, 545-46 (8^th Cir 1991). On the other hand, if the ALJ finds that a claimant has nonexertional impairments that affect the claimant's ability to do other work, then the ALJ cannot rely solely on the Grids to determine whether the claimant is disabled. See Naber, 22 F3d at 189; Jenkins v. Bowen, 861 F2d 1083, 1086 (8^th Cir 1988). In this situation, the ALJ is required to receive other evidence, such as the testimony of a vocational expert, to determine whether the claimant is able to perform other work. See Naber, 22 F3d at 189.

[¶24] In this case, the ALJ relied upon the Grids to find that Cummings was not disabled prior to February 1, 1997. AR 22. In making this determination, the ALJ found that Cummings subjective complaints were not credible. AR 21. However, as discussed above the Court has directed the ALJ to re-assess Cummings' credibility. Therefore, upon remand the decision to rely upon the Grids at step five of the sequential process should also be re-visited by the ALJ. Accordingly, it is hereby

[¶25] ORDERED that Cummings' motion seeking reversal of the ALJ's decision (Docket #17) is granted. The decision of the ALJ is reversed and the case is remanded for further administrative proceedings consistent with this opinion.

[¶26] IT IS FURTHER ORDERED that the Commissioner's motion for summary judgment (Docket #21) is denied.

Footnotes

1. Spironolactone is a diurectic that Cummings takes for high blood pressure which she alleges causes her to use the restroom every 30 minutes. AR 50.

2. 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. (1999)].
(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 his previous work.

McCoy v. Schweiker, 683 F2d 1138, 1141-42 (8^th Cir 1982). See also 20 CFR § 404.1520; 2 Harvey L. McCormick, Social Security Claims and Procedures § 8:34, at 534-35 (5^th ed. 1998).

3. "Light work" is defined as:

lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. 20 CFR § 404.1567 (1999).