Opinion
Case No. 03-2347-JWL
April 5, 2004
MEMORANDUM AND ORDER
Plaintiff Rosalind Clardy brings this action pursuant to 42 U.S.C. § 405(g), 1383(c)(3) seeking judicial review of the final decision of defendant, Jo Anne B. Barnhart, the Commissioner of Social Security ("the Commissioner"), denying Ms. Clardy's applications for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 423, and supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1381a. Plaintiff contends the Commissioner erred by not including her nonexertional impairments in her residual functional capacity ("RFC") and by not considering the functional demands of plaintiff's past relevant work. As explained below, the court largely agrees and reverses and remands this case to the Commissioner for further proceedings consistent with this memorandum and order.
I. BACKGROUND
Plaintiff suffered an on-the-job injury in mid 1998 that caused damage to her right knee. Immediately after the injury, she tried conservative measures to manage her pain. The pain, however, became too intense and her doctors recommended surgical intervention. On August 18, 1998, she underwent an arthroscopy of her right knee. In 1999, she went back to work part time for UPS. She worked 31/2-4 hours per day, and stood the entire time on concrete. Plaintiff testified this aggravated her right knee by causing it to become more painful and swell. On October 13, 1999, she underwent a second arthroscopy due to damage following the prior surgery.
Plaintiff filed her applications for DIB and SSI benefits on June 7, 2000, and May 22, 2000, respectively, claiming she became disabled beginning August 15, 1998. Plaintiff's applications were denied initially and upon reconsideration. Plaintiff did not appeal those determinations. Plaintiff filed a new application for SSI benefits on November 21, 2000. This application was denied initially and on reconsideration.
At plaintiff's request, an administrative law judge ("ALJ") held a hearing. The hearing was held on September 24, 2002, and both plaintiff and her attorney were present. At the hearing, plaintiff requested a closed period of disability from August 15, 1998, through June 30, 2000, because she had returned to work. On October 21, 2002, the ALJ rendered a decision in which she reopened both of plaintiff's earlier applications on review of plaintiff's subsequent application. The ALJ found that plaintiff did not clearly perform substantial gainful activity after she alleged she became disabled, that plaintiff suffered from a severe impairment in the form of a status post knee injury with arthroscopic surgery and debridement, that plaintiff's impairment did not meet or equal any of the criteria in the listing of impairments, and that plaintiff's RFC allowed her to perform her past relevant work as a receptionist during the alleged closed period. Thus, the ALJ determined plaintiff was not disabled and denied benefits. The Appeals Council denied plaintiff's request for review, and therefore the ALJ's decision stands as the Commissioner's final decision.
"In a closed period case, the decision maker determines that a new applicant for disability benefits was disabled for a finite period of time which started and stopped prior to the date of his decision." Shepherd v. Apfel, 184 F.3d 1196, 1199 n. 2 (10th Cir. 1999) (quotation omitted).
II. STANDARD OF REVIEW
On appeal, this court's review of the Commissioner's determination that a claimant is not disabled is limited. Hamilton v. Sec'y of HHS, 961 F.2d 1495, 1497 (10th Cir. 1992). The court examines whether the decision is supported by substantial evidence in the record as a whole and whether the correct legal standards were applied. White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001); Quails v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." White, 271 F.3d at 1257 (quotation omitted); accord Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996) (same). The court neither reweighs the evidence nor substitutes its judgment for that of the Commissioner. White, 271 F.3d at 1257; Quails, 206 F.3d at 1371. This deferential standard of review, however, does not apply to the Commissioner's application of the law. Reversal may be appropriate when the Commissioner either applies an incorrect legal standard or fails to demonstrate reliance on the correct legal standards. Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996); Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994).
III. ANALYSIS
"The Commissioner follows a five-step sequential evaluation process to determine whether a claimant is disabled." Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003); see also 20 C.F.R. § 416.920 (explaining this five-step process). In this case, the ALJ determined plaintiff was not disabled at step four. Step four consists of three phases. Doyal, 331 F.3d at 760. First, the ALJ evaluates the claimant's physical and mental RFC. Id. Second, the ALJ determines the physical and mental demands of the claimant's past relevant work. Id. "`In the final phase, the ALJ determines whether the claimant has the ability to meet the job demands found in phase two despite the mental and/or physical limitations found in phase one.'" Id. (quoting Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996)). At each of these phases, the ALJ must make specific findings. Winfrey, 92 F.3d at 1023; Henrie v. United States Dep't of HHS, 13 F.3d 359, 361 (10th Cir. 1993). A claimant bears the burden of proving that his or her medical impairments prevent him or her from performing past relevant work. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987); Williams v. Bowen, 844 F.2d 748, 751 n. 2 (10th Cir. 1988). In order to make the ultimate finding that a claimant is not disabled at step four, however, the agency's rulings require the ALJ to make specific and detailed predicate findings concerning the claimant's RFC, the physical and mental demands of the claimant's past jobs, and how these demands mesh with the claimant's particular exertional and nonexertional limitations. Wnfrey, 92 F.3d at 1023-25; Social Security Ruling ("SSR") 96-8p, 1996 WL 374184, at *5-*6 (July 2, 1996).
A. Phase One: Plaintiff's RFC
RFC is an administrative finding of what an individual can still do despite his or her limitations. 20 C.F.R. § 404.1545(a). It assesses the extent to which an individual's "impairments), and any related symptoms, such as pain, may cause physical and mental limitations that affect what [an individual] can do in a work setting." Id. An ALJ must provide a "narrative discussion describing how the evidence supports" his or her conclusion regarding RFC. SSR 96-8p, 1996 WL 374184, at *7. The ALJ must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. Id. The ALJ also must explain how any material inconsistencies or ambiguities in the case record were considered and resolved. Id. The RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence. Id.
Plaintiff contends the ALJ erred by not including her nonexertional impairments in her RFC. Specifically, plaintiff contends the ALJ's RFC assessment fails to consider how the following impairments impacted her ability to perform work at the sedentary level: plaintiff's documented complaints of pain, the swelling in her right knee, her inability to ambulate without an assistive device ( i.e., a cane), her need to ice and elevate her leg three hours per day to relieve her pain, her inability to sustain work activity when she went back to work in 1999, her need to wear a full-length leg brace, and the side effects from her pain medications.
The ALJ stated she evaluated plaintiff's subjective complaints and allegations in accordance with Luna v. Bowen, 834 F.2d 161, 163-65 (10th Cir. 1987). In Luna, the Tenth Circuit set forth the following factors for analyzing subjective complaints of disabling conditions: (1) whether the claimant proves with objective medical evidence an impairment that causes the subjective condition; (2) whether a loose nexus exists between the impairment and the subjective condition; and (3) whether the subjective condition is disabling based upon all objective and subjective evidence. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); Luna v. Bowen, 834 F.2d 161, 163-64 (10th Cir. 1987). If the claimant satisfies the first two factors, the ALJ must consider plaintiff's assertions regarding subjective conditions and decide whether she believes them. Luna, 834 F.2d at 163.
In this case, the ALJ's decision does not expressly address each of these three factors. Certainly, though, plaintiff had two arthroscopic knee surgeries that can reasonably be expected to produce some associated pain, and thus the ALJ presumably found that plaintiff satisfied the first two factors with respect to her subjective complaints of pain. See, e.g., Luna, 834 F.2d at 164 ("[I]f an impairment is reasonably expected to produce some pain, allegations of disabling pain emanating from that impairment are sufficiently consistent to require consideration of all relevant evidence." (emphasis in original)). Indeed, it appears from the substance of the ALJ's reasoning that she analyzed only the last of the three Luna factors. Accordingly, the court will confine its review of this issue to the ALJ's credibility determination.
Credibility determinations are peculiarly within the province of the finder of fact, and the court should not upset credibility determinations if they are supported by substantial evidence. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). Nevertheless, the ALJ's evaluation must contain "specific reasons" to support the credibility finding. Quails v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000); accord SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996). The ALJ should consider such factors as
the levels of medication and their effectiveness, the extensiveness of the attempts (medical or nonmedical) to obtain relief, the frequency of medical contacts, the nature of daily activities, subjective measures of credibility that are peculiarly within the judgment of the ALJ, the motivation of and relationship between the claimant and other witnesses, and the consistency or compatibility of nonmedical testimony with objective medical evidence.Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988). Findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings. Kepler, 68 F.3d at 391 (quoting Huston, 838 F.2d at 1133); see also SSR 96-7p, 1996 WL 374186, at *2 (credibility finding must be "supported by the evidence in the case record, and must be sufficiently specific to make clear . . . the weight the adjudicator gave to the individual's statements and the reasons for that weight").
In this case, the ALJ discounted plaintiff's subjective complaints of pain on the following basis:
Claimant's allegations, including subjective complaints of pain, are not credible in light of her lack of medical treatment, discrepancies between claimant's assertions and information contained in the documentary reports, the reports of treating and examining practitioners, and the need for only mild or over-the-counter medication to control her symptoms. According to Exhibit 16E, claimant's daily activities were not significantly restricted and at the hearing she testified her only impairment involved her right knee. Claimant testified she needed to elevate her leg above the waist and take a 45-60 minute nap during the day. There is simply no mention of a need to elevate her leg above the waist by Dr. Jones her treating doctor. In fact, he released her to sedentary work after her first surgery which the undersigned finds she could have done. Claimant, however, returned to a light job that required standing four hours a day and this very well could have increased swelling. The undersigned finds that there is nothing in the medical evidence to support that were claimant to have limited herself to the performance of sedentary work that she would have had to elevate her leg. Interestingly, claimant is currently performing janitorial work and thus, her residual functional capacity at the present, is for light work at least.
(Tr. at 15-16 (emphasis in original).)
The court finds the ALJ's credibility determination is unsupported by substantial evidence. The ALJ conclusorily noted a "lack of medical treatment" despite the fact that plaintiff underwent two knee surgeries during a fourteen-month period and actively participated in physical therapy from August 24, 1999, through September 28, 1999, and again from November 23, 1999, through February 8, 2000. (Tr. at 195-269.) Further, the ALJ's conclusion that there were "discrepancies" between plaintiff's assertions and the documentary evidence is not affirmatively linked to any evidence in the record. Rather, the ALJ simply pointed to the absence of documentary evidence from plaintiff's treating physician suggesting that she needed to do certain things such as elevate her leg above her waist. See SSR 96-7p, 1996 WL 374186, at *1 ("An individual's statements . . . may not be disregarded solely because they are not substantiated by objective medical evidence."). Also, the ALJ refers to plaintiff's Exhibit 16E to support the finding that plaintiff's daily activities were not significantly restricted. Plaintiff, however, completed this form on April 12, 2001 (Tr. at 185-191), which was nearly nine months after the closed period ended and therefore is not probative regarding the extent to which plaintiff's daily activities were restricted during the alleged period of disability.
Significantly, the record also does not appear to support the ALJ's reasoning that plaintiff should have followed the instructions of her treating physician, Lowry Jones Jr., M.D., and returned to sedentary work rather than a light job. The earliest treatment note from Dr. Jones that is a part of the record was dated November 23, 1998, which was only three months after plaintiff's first surgery. (Tr. at 280.) In that note, Dr. Jones states that plaintiff "can continue to work in the smalls area." ( Id.) His next treatment note on January 18, 1999, similarly states that plaintiff "can continue to work in the same area." ( Id.) The record does not reflect that Dr. Jones restricted plaintiff to desk work until August 12, 1999. (Tr. at 279.) Admittedly, plaintiff testified that she worked at UPS "up until the next surgery" (Tr. at 31), which was approximately two months later on October 13, 1999, and therefore the ALJ could arguably fault plaintiff for failing to abide by Dr. Jones's instructions after August 12, 1999. The ALJ's reasoning, however, does little to account for the time period from August 15, 1998. which was the beginning of the alleged closed period of disability, through August 12, 1999. which was the date Dr. Jones first restricted plaintiff to desk, i.e., sedentary, work.
Thereafter, Dr. Jones continued to restrict plaintiff to desk work or sedentary activity. (Tr. at 271, 273, 276, 277, 279.)
On remand, the ALJ shall point out specific evidence in the record to support her finding that plaintiff's subjective complaints of pain are not credible. In doing so, the ALJ shall also evaluate the significance, if any, of plaintiff's allegations concerning the swelling in her knee, her inability to ambulate without an assistive device, her need to elevate her leg, and her need to wear a full-length leg brace at times, which plaintiff testified was given to her by Dr. Jones, see 20 C.F.R. § 404.1545(e) (requiring the ALJ to consider the limiting effects of all impairments, even those that are not severe, when the claimant has a severe impairment); see also SSR 96-8p, 1996 WL 374184, at *1 (RFC assessment must include the impact of symptoms related to medically determinable functional limitations); the side effects of plaintiff's medication, see SSR 96-7p, 1996 WL 374186, at *3 (requiring the ALJ to consider the "side effects of any medication the individual takes or has taken to alleviate pain or other symptoms"); see also 20 C.F.R. § 404.1529(c)(3)(iv), 416.929(c)(3)(iv) (same); SSR 96-8p, 1996 WL 374184, at *5 (RFC assessment must be based on, among other things, the "side effects of medication"); and plaintiff's inability to sustain work activity when she went back to work in 1999, see SSR 96-8p, 1996 WL 374184, at *5 (RFC assessment must be based on "[e]vidence from attempts to work").
Plaintiff challenges the ALJ's failure to include her inability to sustain work activity in her RFC. She does not appeal the ALJ's findings at step one (Tr. at 13) regarding the work she performed in 1999.
The court, however, rejects plaintiff's argument that the ALJ erred by failing to include in plaintiff's RFC her alleged need to ice her leg. Even if the ALJ were to fully credit plaintiff's allegation that she needed to ice her leg, plaintiff testified that she iced her leg 3-4 times a week for 30-45 minutes. (Tr. at 39.) There is no suggestion in the record that plaintiff needed to do this at work rather than at home.
The ALJ's assessment of plaintiff's RFC is inadequate in another respect. "The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraphs (b), (c), and (d) of 20 C.F.R. § 404.1545 and 416.945." SSR 96-8p, 1996 WL 374184, at *1. Thus, the ALJ must assess the "physical demands of work activity, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping or crouching)." 20 C.F.R. § 404.1545(b); accord 20 C.F.R. § 416.945(b). The RFC assessment must not be expressed initially in terms of the exertional categories of "sedentary [or] light"; rather, a function-by-function evaluation is necessary in order to arrive at an accurate RFC. SSR 96-8p, 1996 WL 374184, at *3. In this case, the ALJ determined that plaintiff maintained the RFC to perform sedentary work. While this may be true, it is not the type of function-by-function assessment required by Social Security Ruling 96-8p. See, e.g., Lewis v. Apfel, No. 98-5139, 1999 WL 258362, at *1 (10th Cir. Apr. 30, 1999) (reversing the ALJ's finding that plaintiff's limitations did not prevent plaintiff from performing sedentary work because the ALJ did not make any findings as to what specific limitations the plaintiff suffered). Accordingly, on remand, the ALJ shall perform a function-by-function assessment of plaintiff's RFC.
Although the Tenth Circuit generally does not favor citation to an unpublished opinion, such an opinion may be cited if, as in the present case, it has persuasive value on a material issue.
B. Phase Two: Functional Demands of plaintiff's Past Relevant Work
"At the second phase of the step four analysis, the ALJ must make findings regarding the physical and mental demands of the claimant's past relevant work." Winfrey v. Chater, 92 F.3d 1017, 1024 (10th Cir. 1996) (citing Henrie v. United States Dep't of HHS, 13 F.3d 359, 361 (10th Cir. 1993)). In order to make those findings, "the ALJ must obtain adequate `factual information about those work demands which have a bearing on the medically established limitations.'" Id. (quoting SSR 82-62).
In this case, the ALJ essentially skipped the second phase of the step four the analysis. The ALJ found that plaintiff retained the RFC to perform sedentary work, and that her past relevant work as a receptionist was sedentary and did not require her to perform activities precluded by her RFC. (Tr. at 17.) The ALJ did not make any findings regarding the physical and mental demands of plaintiff's work as a receptionist, either as she actually performed that job or as it is generally performed throughout the national economy. The ALJ did elicit testimony from the vocational expert that a receptionist job would allow one to elevate his or her leg approximately 12 inches under a desk, and would allow normal work breaks in the morning and afternoon for 15-20 minutes each as well as a 30-60 minute lunch break. (Tr. at 44.) The ALJ, however, made no findings regarding the actual functional demands of plaintiff's past relevant work as a receptionist, and the law in the Tenth Circuit is clear that the ALJ must make the necessary findings at this phase. Winfrey, 92 F.3d at 1024 ("[T]he Secretary's own rule dictates that the ALJ make the necessary findings at phases two and three of the step four inquiry." (citing SSR 82-62)). Accordingly, on remand, the ALJ shall also make specific factual findings regarding the demands of plaintiff's past relevant work as a receptionist. See, e.g., Jason v. Chater, No. 94-5138, 1995 WL 275725, at *3 (10th Cir. May 10, 1995) (reversing and remanding because the ALJ did not make any findings regarding the pertinent customary demands of the receptionist occupation).
Again, the court finds this unpublished opinion has persuasive value on a material issue.
C. Phase Three: How Plaintiff's RFC Meshes With the Demands of Her Past Relevant Work
In light of the nature of the court's evaluation of the Commissioner's findings regarding plaintiff's RFC and the demands of her past relevant work as a receptionist, it necessarily follows that the ALJ's phase three determination that plaintiff could perform her past relevant work as a receptionist is unsupported by substantial evidence. Accordingly, on remand, after the ALJ performs the required analysis at phases one and two, the ALJ shall then proceed to examine how plaintiff's RFC meshes with the demands of her past relevant work as a receptionist. IT IS THEREFORE ORDERED BY THE COURT that the Commissioner's decision is reversed and remanded for further proceedings consistent with this memorandum and order.
IT IS SO ORDERED.