Jones v. Taylor ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
KEVIN MICHAEL JONES, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-0852 (EGS)
)
CAROLYN W. COLVIN, )
Acting Commissioner of Social Security, )
)
Defendant. 1 )
___________________________________ )
MEMORANDUM OPINION
This matter is before the Court on Defendant’s Motion to Remand and Supporting
Memorandum of Points and Authorities [ECF No. 49] and assorted motions filed by plaintiff
[ECF Nos. 53, 57, 61-62, 64, 66, 68-70, 72-75]. For the reasons discussed below, all of
plaintiff’s motions will be denied, defendant’s motion will be granted, the Commissioner’s final
decision will be reversed, and this matter will be remanded to the Commissioner for further
administrative proceedings.
I. BACKGROUND
On October 7, 2002, plaintiff applied for a period of disability and disability insurance
benefits under Title II of the Social Security Act, see 42 U.S.C. §§ 416(i), 423(d), and for
supplemental security income (“SSI”) benefits under Title XVI of the Social Security Act, see 42
U.S.C. § 1382(a)(3), claiming to have been disabled since January 3, 2000 due to cervical disc
1
The current Acting Commissioner of Social Security is substituted as the party defendant
pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.
1
disease, cervical arthritis, and lumbar disc disease with arthritis. See Compl. ¶ 4; Administrative
Record (“A.R.”) at 42, 121-23. The application was denied initially and on reconsideration, see
Compl. ¶ 4, and on April 27, 2004, plaintiff requested a hearing before an administrative law
judge (“ALJ”). Id. ¶ 5; A.R. at 69). The hearing took place on May 15, 2007; plaintiff was not
represented by counsel. Compl. ¶ 5; see A.R. at 281-89.
The ALJ determined that plaintiff “ha[d] not been under a disability within the meaning
of the Social Security Act from January 3, 2000 through [May 15, 2007,] the date of [the]
decision.” A.R. at 41. Although plaintiff had not engaged in substantial gainful activity since
January 3, 2000, and had severe impairments, see A.R. at 42, the ALJ concluded that he did “not
have an impairment or combination of impairments that [met] or medically equal[led] one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix A.” A.R. at 44. Further, the ALJ
found that plaintiff had the residual functional capacity to perform a wide range of work at a
lighter level of exertion. A.R. at 44. In short, plaintiff was not disabled for purposes of his
applications for period of disability, disability insurance, and SSI benefits. A.R. at 47. The
Appeals Council affirmed the decision. A.R. at 6.
Plaintiff filed his complaint [ECF No. 1] in May 2008 seeking judicial review of the
Commissioner’s final determination. He has alleged that the Commissioner’s finding that he is
not disabled is not based on substantial evidence, Compl. ¶ 12, and he demands that the decision
“be reviewed, reversed, and set aside.” Id. at 3 (page number designated by ECF). Defendant
filed an Answer [ECF No. 6] and the Administrative Record [ECF No. 7] on August 20, 2008.
The ALJ erred in that he “relied exclusively upon a standardized set of guidelines
developed by the SSA to determine the types of work an individual with a given set of infirmities
2
generally can perform.” Jones v. Astrue, 650 F.3d 772, 773 (D.C. Cir. 2011). “[E]xclusive
reliance on those guidelines [was] inappropriate where, as here, [plaintiff’s] impairment is due in
part to pain.” Id. (citing 20 C.F.R. § 416.969a(c)). The error was discovered only after the
ALJ’s decision became final and the Commissioner filed an Answer to the Complaint – thus
barring a motion for a remand in order that “additional evidence to be taken before the
Commissioner . . . 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) (sentence six). The Commissioner then sought an alternative route to
remand.
On December 5, 2008, defendant filed a Motion for Entry of Judgment with Remand
Pursuant to Sentence Four of 42 U.S.C. § 405(g) and Supporting Memorandum of Law [ECF
No. 15], in order that, on remand, the Commissioner could:
1. Hold a new hearing to obtain supplemental vocational expert
evidence regarding plaintiff’s ability to perform other work,
evidence provided in response to a complete hypothetical question;
2. Identify and resolve any conflicts between the occupational
evidence provided by the vocational expert and information in the
Dictionary of Occupational Titles and the Selected Characteristics
of Occupations, and in doing so, ensure that the hypothetical
question to the vocational expert is consistent with the hearing
decision's residual functional capacity finding; and
3. Issue a new decision.
Mot. for Entry of J. at 1-2.
The fourth sentence of § 405(g) authorizes the district court “to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42
3
U.S.C. § 405(g) (sentence four). A sentence four remand, then, is “a post-judgment remand in
conjunction with a decision affirming, modifying, or reversing the decision of the Secretary.”
Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 174 (6th Cir. 1994).
The Court issued an Order [ECF No. 17] on December 8, 2008, reversing the
Commissioner’s decision and remanding the matter for further administrative proceedings. On
February 25, 2009, in a subsequent Order denying various motions filed by plaintiff, the Court
stated:
In reviewing an agency’s final decision in a case such as this one
brought under 42 U.S.C. § 405(g), this Court is not empowered to
make substitute findings of fact or decisions for the agency.
Rather, it is empowered to enter “a judgment affirming, modifying,
or reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.” 42 U.S.C. §
405(g). In this case, the final agency decision was reversed and the
matter was remanded so that the Commissioner could issue a new
decision after further proceedings. In short, the plaintiff has
already obtained the maximum relief -- reversal and remand -- that
the Court is authorized to award in a § 405(g) case.
Order [ECF No. 25] at 1-2. Plaintiff filed a Notice of Appeal [ECF No. 31] on May 20, 2009.
The United States Court of Appeals for the District of Columbia Circuit found that this
Court “misapprehended the extent of its remedial power.” Jones, 650 F.3d at 773. In this case,
“it is undisputed that [plaintiff] made out a prima facie case and that, on the extant administrative
record, the Commissioner could not meet his burden of proof.” Id. at 777. This Court “could
have, if warranted by the record, afford [plaintiff] additional relief,” in that it “could have
remanded the case with an order to pay [plaintiff] benefits, rather than to rehear the matter.” Id.Acknowledging the Commissioner’s argument that the existing record does not establish
plaintiff’s clear entitlement to Social Security benefits, the Circuit noted that “the sufficiency of
the record evidence is for the district court to determine in the first instance.” Id. In the end, the
4
Circuit “remand[ed] this matter for the district court to determine the appropriate remedy in light
of the full extent of its power under circuit law.” Id.II. DISCUSSION
The Court’s task is to determine whether, based on the existing administrative record,
there is sufficient evidence to establish plaintiff’s entitlement to period of disability, disability
insurance and SSI benefits as of January 3, 2000. If so, the Court may reverse the
Commissioner’s decision and remand with an order to pay plaintiff benefits. See Jones, 650 F.3d
at 777. If not, the Court may g reverse the Commissioner’s decision and remand the matter
under sentence four of § 405(g) for rehearing. Defendant contends that “there is conflicting
evidence as to the extent and impact of [plaintiff’s] cervical and lumbar disc disease,” Def.’s
Mot. to Remand and Supporting Mem. of P. & A. (“Def.’s Mem.”) at 3, such that, on the basis of
the current record, “it cannot be said that the record demands an award of benefits from the
alleged onset date in 2000.” Id. at 4. Upon review of the ALJ’s decision and the administrative
record, the Court concurs.
“[T]he term ‘disability’ means . . . 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 has lasted or can be expected to last for a continuous period of not less than
12 months.” 42 U.S.C. § 416(i)(1); see 20 C.F.R. §§ 404.1505(a) (disability), 416.905(a) (SSI).
For purposes of period of disability and disability insurance benefits, a claimant must also meet
certain status requirements, see 42 U.S.C. §§ 416(i) and 423, and plaintiff’s “earnings record
shows that [he] has acquired sufficient quarters of coverage to remain insured . . . through
September 30, 2003.” A.R. at 40. Plaintiff still “must establish disability on or before
5
[September 30, 2003] in order to be entitled to a period of disability and disability insurance
benefits.” Id.There is a five-step sequential evaluation process for determining whether a claimant is
disabled. See 20 C.F.R. §§ 404.1520(a), 416.920(a). First, the ALJ considers the claimant’s
work activity. See id. § 404.1520(b). If the claimant is “doing any substantial gainful activity,”
he is not disabled. Id. § 404.1520(a)(4)(i). If he is not, the analysis proceeds to the second step.
Second, the ALJ considers the medical severity of the claimant’s impairment(s). Id. §
404.1520(a)(4)(ii). If the claimant “do[es] not have any impairment or combination of
impairments which significantly limits [his] physical or mental ability to do basic work
activities,” he is not disabled. Id. If he does have a severe impairment or impairments, the
analysis proceeds to the third step.
Third, the ALJ considers the medical severity of the claimant’s impairment in order to
determine whether the “impairment(s) . . . meets or equals one of our listings in [20 C.F.R. Part
404, Subpart P,] appendix 1 . . . and meets the duration requirement.” 20 C.F.R. §
404.1520(a)(4)(iii). If so, the claimant is disabled and the ALJ does not consider the claimant’s
age, education or work experience. Id. § 404.1520(d). Id.
Fourth, if the ALJ determines that the claimant’s impairments do not meet or equal a
listing in appendix 1, id. § 404.1520(e), he assesses the claimant’s residual functional capacity
and his past relevant work, id. § 404.1520(a)(4)(iv), taking into account “all the relevant medical
and other evidence in [the] record,” id. § 404.1520(e), to determine whether the claimant can do
past relevant work, id. The ALJ “compare[s the] residual functional capacity assessment . . .
with the physical and mental demands of [the claimant’s] past relevant work.” Id. § 404.1520(f).
6
If the claimant still can do this kind of work, he is not disabled. Id. If he cannot, the analysis
proceeds to the fifth and final step.
Fifth, if the ALJ finds that the claimant cannot do past relevant work because of his
severe impairments, the ALJ “consider[s] the same residual functional capacity assessment . . .
together with [the claimant’s] vocational factors (. . . age, education, and work experience) to
determine if [he] can make an adjustment to other work.” Id. § 404.1520(g); see id. §
404.1520(a)(4)(v). If he cannot make an adjustment to other work, the claimant is disabled. Id.
§ 404.1520(g).
The five-step evaluation process on an application for SSI benefits is substantially similar
to the evaluation process for period of disability and disability insurance benefits. Compare 20
C.F.R. § 404.1520(a) with 20 C.F.R. § 416.920(a)(4). However, the SSI analysis takes into
account any of the claimant’s “impairment(s) and related symptoms, such as pain, [which] cause
limitations of function or restrictions [and] which limit [his] ability to meet certain demands of
jobs.” 20 C.F.R. § 416.969a(a); see id. § 416.969 (referring to rules applicable “in cases where a
person is not doing substantial gainful activity and is prevented by a severe medically
determinable impairment from doing vocationally relevant past work”). “Limitations or
restrictions which affect [the claimant’s] ability to meet the demands of jobs other than the
strength demands, that is, demands other than sitting, standing, walking, lifting, carrying,
pushing or pulling, are considered nonexertional.” Id. Examples of nonexertional limitations
and restrictions are:
(i) . . . difficulty functioning because [the claimant is] nervous,
anxious, or depressed;
(ii) . . . difficulty maintaining attention or concentrating;
7
(iii) . . . difficulty understanding or remembering detailed
instructions;
(iv) . . . difficulty in seeing or hearing;
(v) . . . difficulty tolerating some physical feature(s) of certain
work settings, e.g., [the claimant] cannot tolerate dust or fumes; or
(vi) . . . difficulty performing the manipulative or postural
functions of some work such as reaching, handling, stooping,
climbing, crawling, or crouching.
20 C.F.R. § 416.969a(c)(1). Where the claimant’s “impairment(s) and related symptoms, such as
pain, only affect [his] ability to perform the nonexertional aspects of work-related activities, . . .
[t]he determination as to whether disability exists [is] based on the principles in the appropriate
sections of the regulations, giving consideration to the rules for specific case situations in
appendix 2” of subpart P of part 404 of this chapter, namely the Medical-Vocational Guidelines.
Id. § 416.969a(c)(2); see id. § 416.969.
A. Step One: Work Activity
After plaintiff sustained an on-the-job injury in 1995, he apparently had other work, for
example, “as an independent contractor.” A.R. at 284. Plaintiff was last employed in January
2000, at which time he was a lumper unloading trucks at a facility in Jessup, Maryland. A.R. at
283-84. He has not been employed since. A.R. at 284. The ALJ determined that plaintiff “has
not engaged in substantial gainful activity since January 3, 2000, the alleged onset date” of his
purported disability. A.R. at 42.
B. Step Two: Medical Severity of Plaintiff’s Impairments
Medical records indicate that plaintiff had been referred to and had received physical
therapy as early as September 2002. See A.R. at 184. As of November 30, 2002, no x-rays or
other test results were available, see A.R. at 185, and as of November 21, 2002, plaintiff needed
8
an evaluation from either a physical therapist or an orthopedist to determine the “quality of
disability and how much the disability affects his activity.” A.R. at 196.
William Harpster, M.D., examined plaintiff on February 4, 2003, and diagnosed back,
neck and shoulder pain. A.R. at 187. Plaintiff reportedly was not taking pain medication at that
time. A.R. at 187. Dr. Harpster noted that plaintiff had a limited capacity for standing, stooping,
kneeling, lifting, pushing and pulling, and no limitations on walking, reaching, or working
outdoors. A.R. at 188. Although he deemed plaintiff’s disability permanent, Dr. Harpster
opined that his condition could improve substantially with treatment. A.R. at 188. He
recommended physical therapy and further evaluation. A.R. at 188.
David A. Lanham, M.D., a Board certified psychiatrist, evaluated plaintiff on March 27,
2003. A.R. at 189. Dr. Lanham found plaintiff to be cooperative, even though plaintiff had not
expected to see a psychiatrist. A.R. at 190. Plaintiff did not believe that he had any mental or
emotional problems, and denied that he was depressed even though he was homeless at the time
and in constant pain. A.R. at 190. Dr. Lanham did not conduct any psychological testing and
recommended that such testing be done. A.R. at 191. He recommended no therapy “since
[plaintiff had] such strong denial defenses.” A.R. at 191. “In many areas memory,
understanding, sustained concentration and persistence as well as adaptation [were] intact.” A.R.
at 191.
Talaat Maximous, M.D., conducted an orthopedic examination on April 29, 2003
regarding plaintiff’s complaints of pain in his lower back, left shoulder, and neck. A.R. at 192.
Plaintiff reported that he sustained injuries to his neck and back in 1995, that x-rays and MRIs
were taken thereafter, that he refused recommended surgery and that he injured his shoulder,
9
arm, neck and back again when he slipped and fell during water therapy. A.R. at 192. Plaintiff
walked without assistive devices, A.R. at 193, and reportedly could walk only a few blocks
before having to sit down, A.R. at 192. The physical examination revealed tenderness around
plaintiff’s neck. A.R. at 193. “Attempted range of motion of his neck was guarded by muscle
spasms created by the patient himself.” A.R. at 193. Plaintiff “refused to do any extension” of
his neck, and lateral flexion and side rotation were limited. A.R. at 192-93. Similarly, although
adduction and internal rotation of his shoulders were normal, plaintiff resisted “any attempt at
range of motion” and “[a]ttempts at external rotation” of the shoulders. A.R. at 193. The range
of motion in plaintiff’s elbows, wrists, hands and fingers was “full bilaterally . . . in spite of
plaintiff’s resistance and complaint of pain.” A.R. at 193. Dr. Maximous noted no wasting of
the shoulder muscles and forearms. A.R. at 193. Nor did Dr. Maximous note any motor or
sensory deficit in plaintiff’s upper extremities. A.R. at 193. Although plaintiff’s grip strength
measured with a dynamometer tested well on one side, plaintiff refused to make a fist to test
manual grip strength. A.R. at 193. Examination of plaintiff’s back showed no deformities. A.R.
193. The “[a]ttempt at forward flexion” of the back “was markedly limited by [plaintiff] –
guarding to 40 degrees only,” and “[l]ateral flextion was 10 degrees in each direction with
guarding from the patient and complaint of pain.” A.R. at 193. Similarly, examination of the
hips showed no deformity, A.R. at 193, but plaintiff resisted attempts at backward flexion. A.R.
at 193-94. Plaintiff’s knees and ankles showed no deformities, swelling, or tenderness, and his
reflexes were normal. A.R. at 194. Dr. Maximous diagnosed cervical disk disease (C6-7),
cervical arthritis, and lumbar disk disease (L4-5) with arthritis. A.R. at 194. He believed,
however, that plaintiff was “overstating his pain and discomfort.” A.R. at 194. He opined that
10
plaintiff “would benefit from a psychological evaluation and treatment if indicated.” A.R. at
194.
Plaintiff underwent an initial orthopedic evaluation by Eric G. Dawson, M.D. on January
27, 2005. A.R. at 263. Dr. Dawson found it difficult to examine plaintiff’s upper extremities,
shoulders and lumbar spine because of plaintiff’s complaints of pain and discomfort. A.R. at
263-64. His impressions were that plaintiff suffered from (1) a cervical sprain or discopathy, (2)
dorsal myofascitis, and (3) lumbar strain and possible discopathy. A.R. at 264. Dr. Dawson
recommended physical therapy, A.R. at 262, and examined plaintiff again on February 7, 2005,
February 17, 2005, March 24, 2005, and June 27, 2005. A.R. at 255-56, 259, 261. By then,
plaintiff “orthopaedically has stabilized and therefore has reached maximum medical
improvement.” A.R. at 255. He had been discharged from therapy in April 2005 without having
undergone a discharge evaluation, however, due to his noncompliance. A.R. at 223.
A. Kossoff, M.D., examined plaintiff on May 31, 2006, and diagnosed lumber and
cervical discopathy. A.R. at 253. Dr. Kossoff found that plaintiff was mildly restricted in
conducting activities of daily living, and moderately restricted in maintaining social functioning
and maintaining concentration. A.R. at 254. Plaintiff could sit, stand and walk for less than 2
hours, and could lift or carry less than 10 pounds. A.R. at 254. In addition, plaintiff’s condition
had lasted more than 12 months and prevented him from working from May 31, 2006 through at
least May 31, 2007. A.R. at 254.
Based on the information in the record, the ALJ found that plaintiff has severe
impairments. A.R. at 42.
11
C. Step Three: Whether Plaintiff’s Impairments Meet
or Medically Equal a Listed Impairment
“No treating, examining, consulting, or reviewing physician has opined that [plaintiff’s]
impairments equal in severity any of the listed impairments.” A.R. at 44. The ALJ found that,
“although [plaintiff’s] impairments are severe, they are not attended with the specific clinical
signs and diagnostic findings required to meet or equal the requirements set forth in the Listing
of Impairments, Appendix 1 to Subpart P, 20 CFR, Part 404.” A.R. at 44.
D. Step Four: Plaintiff’s Residual Functional Capacity and
Ability to Perform Past Relevant Work
With respect to plaintiff’s residual functional capacity, the ALJ determined:
[Plaintiff] has the residual functional capacity to perform a wide
range of work at the light level of exertion. He has the capacity to
life or carry up to 20 pounds occasionally and 10 pounds
frequently; walk and stand for 2 hours in an 8-hour workday with
normal breaks; sit for 6 hours in an 8-hour workday with pushing
and pulling limited to the extent of lifting and carrying; and he
should avoid stooping, kneeling, crouching, squatting, and
climbing ramps or stairs.
A.R. at 44. Although the ALJ found that plaintiff’s “medically determinable impairments could
reasonably be expected to produce the alleged symptoms,” he deemed plaintiff’s “statements
concerning the intensity, persistence and limiting effects of these symptoms . . . not entirely
credible.” A.R. at 45. Dr. Maximous’ opinion that plaintiff overstated his pain and discomfort
was accorded great weight, notwithstanding, for example, Dr. Harpster’s opinion that plaintiff’s
impairments were permanent. A.R. at 45.
In his past work as an electrician, plaintiff “was required to walk, stand, kneel, crouch,
and lift equipment weighing 100 pounds.” A.R. at 45. Given the ALJ’s finding as to plaintiff’s
residual functional capacity, plaintiff is unable to perform his past relevant work. A.R. at 45.
12
E. Step Five: Whether Plaintiff Can Adjust To Other Work
At this fifth and final step, the ALJ was to determine whether plaintiff can make an
adjustment to other work, 20 C.F.R. §§ 404.1520(g), 416.920(g), taking into consideration
plaintiff’s “impairment(s) and related symptoms, such as pain, [which] cause limitations of
function or restrictions [and] which limit [his] ability to meet certain demands of jobs.” 20
C.F.R. § 416.969a(a). Notwithstanding pain as a limiting factor, the ALJ’s decision is based
upon the Medical-Vocational Guidelines of appendix 2. Under 20 C.F.R. § 416.969a, however,
“the rules of appendix 2 do not direct factual conclusions of disabled or not disabled” in a case
such as this where pain affects plaintiff’s ability to perform nonexertional aspects of work
activity. 20 C.F.R. § 416.969a(c)(2). There is not sufficient evidence in the administrative
record either to confirm the ALJ’s assessment of plaintiff’s residual functional capacity or to
determine whether plaintiff can adjust to other work. Without such evidence, this Court cannot
determine whether plaintiff is disabled. In other words, “all essential factual issues have not
been resolved and there is no clear entitlement to benefits on the record as it now stands.”
Faucher, 17 F.3d at 176.
III. CONCLUSION
Based on the existing administrative record, plaintiff is not clearly entitled to period of
disability benefits, disability insurance or supplemental security income benefits as of January 3,
2000. The Court grants defendant’s motion, reverses the Commissioner’s decision, and remands
this matter pursuant to sentence four of 42 U.S.C. § 406(g) for further administrative
proceedings. An Order accompanies this Memorandum Opinion.
DATE: July 8, 2013 EMMET G. SULLIVAN
United States District Judge
13