Durham v. Apfel, Commissioner

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TRACI DURHAM,
Plaintiff-Appellant,
v.
No. 99-1451
KENNETH S. APFEL, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CA-98-345-3)
Argued: June 9, 2000
Decided: July 27, 2000
Before MURNAGHAN, WILKINS, and WILLIAMS,
Circuit Judges.
_________________________________________________________________
Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
ARGUED: Charles William Peraino, Richmond, Virginia, for Appel-
lant. Andrew Charles Lynch, Assistant Regional Counsel, Office of
the General Counsel, SOCIAL SECURITY ADMINISTRATION,
Philadelphia, Pennsylvania, for Appellee. ON BRIEF: James A.
Winn, Regional Chief Counsel, Patricia M. Smith, Deputy Chief
Counsel, Office of the General Counsel, SOCIAL SECURITY
ADMINISTRATION, Philadelphia, Pennsylvania; Helen F. Fahey,
United States Attorney, Joan E. Evans, Assistant United States Attor-
ney, Richmond, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
The claimant, Traci Durham ("Durham"), appeals from the district
court's order upholding the Commissioner of Social Security's denial
of her claim for disability insurance benefits ("DIB") and supplemen-
tal security income ("SSI"). Because the Administrative Law Judge
failed to explain adequately the basis for his findings, we vacate and
remand.
I.
Durham is a thirty-five-year-old woman who lives in Richmond,
Virginia. She has a tenth grade education. Between 1984 and 1994,
Durham worked in shipping, receiving, and stocking for various cor-
porations.
On August 28, 1994, Durham fell at her home. After her fall, Dur-
ham complained of severe and continuing pain in her lower back,
increasing in intensity with movement. Durham was subsequently
diagnosed with herniated discs and degenerative disc disease. The
continued severity of Durham's back pain led to her receiving decom-
pression surgery on April 10, 1995, as well as poterolateral fusion by
posterior iliac crest bone graft. Since her surgery, Durham has
improved slightly, but she continues to complain of severe pain. Dur-
ham receives treatment at a pain management center twice a month.
On March 8, 1995, Durham filed a claim for DIB and SSI with the
Social Security Administration. Durham alleged that because of her
2
lower back pain, she has been unable to work since August 28, 1994.
The Virginia Disability Determination Service denied Durham's
claim initially and upon reconsideration. The Service found on both
occasions that Durham's medical condition was severe, but that it was
not expected to last twelve months as required by the Social Security
Act. See 42 U.S.C. § 416(i) (defining"disability" as the inability to
engage in any substantial gainful activity due to a physical or mental
impairment that can be expected either to result in death or to last for
a continuous period of more than twelve months).
Durham then requested a hearing before an Administrative Law
Judge ("ALJ"). The only witnesses at the hearing were Durham and
a vocational expert. Durham testified that she was thirty-one years old
and a mother of five. Durham's day begins at about 6:00 a.m. when
she gets up to get her children ready for school. She helps get her
children ready for school between 6 and 9:00 a.m. It appears that she
cooks breakfast for her children, but she has to have them get the pots
out for her. She then walks her children a block and a half to school.
Durham cannot walk the block and a half without resting; she stops
after a block and then continues on to the school.
After returning from walking her children to school, Durham starts
to do the breakfast dishes and begins to plan her children's dinner.
During the rest of the morning, Durham occasionally does "a little bit
of dusting," on things that are on a level height. A.R. 37. When Dur-
ham is finished dusting, she takes her medicine and has to sit down
with a heating pad for an hour. In the afternoon, Durham sits with the
heating pad or lies down until her children come home.
Durham's children come home on their own at around 3:15 p.m.
In the evening, Durham helps her children with their homework and
reads books to them. Durham also does some cooking, but only on top
of the stove. She cannot cook in the oven. Durham also lies down for
a significant portion of the evening. In total, Durham spends about
five hours a day lying down.
Durham testified that the only household chores she can do are
cooking and a limited amount of dusting. She cannot do laundry,
sweep, vacuum, make beds, or do any yard work. Durham does not
go to church or do any other social activities, nor does she do any gro-
3
cery shopping, which a friend does for her. Durham can feed, bathe,
and dress herself, although she sometimes needs help putting on her
pants and shirts.
Durham also testified about the pain she experiences. She testified
that her lower back pain is constantly there. The pain shoots down her
leg, causing burning in her feet. If Durham does too much moving,
"the pain gets real intense." A.R. 41. She cannot reach out very far
or raise her hands above her head because of the pain.
In response to a question by the ALJ concerning how much she can
lift at one time, Durham responded that she could lift about four
pounds. The ALJ also asked her if she could lift a gallon of milk, and
she responded that she could. The ALJ then told her that a gallon of
milk weighs eight pounds. On examination by her attorney, Durham
clarified that she can only carry a gallon of milk from her refrigerator
to a table beside her refrigerator; she cannot carry the milk across the
room. Durham also testified that she cannot carry a ten-pound bag of
sugar.
The ALJ also asked Durham the following questions about her
ability to walk and sit for long periods of time:
Q: In an eight-hour day, how many hours overall could you
stand and walk if you had the ability to sit whenever you
needed to?
ALJ: I'm not asking you how many hours you can stand and
walk at one time, but rather overall.
CLMT: In overall, with sitting and standing?
ALJ: Yes.
A: Probably about four hours.
Q: And how many hours in an eight-hour day could you sit
if you had the ability to shift your position and stand when-
ever you needed to? Not at one time, but overall? If you
4
could shift your body and stand whenever you needed to, in
an eight-hour day. How many hours overall could you sit?
A: Probably about four. Maybe six. Four to six.
A.R. 45-46. On examination by her attorney, Durham clarified her
testimony concerning her ability to sit and stand during an eight-hour
day:
Q: Do you think you could alternate between sitting and
standing for eight hours a day without lying down at all?
A: No.
...
Q: Okay. And you feel that of an eight-hour day you could
sit for four to six hours?
A: With moving up and, with moving and getting up, I
could probably do that. I'm not saying that it would be guar-
anteed for five days a week. I could probably do it maybe
one day then I, I'm not saying I could do it the next two
days. It might take me a while to get myself back together
to do it for another day.
Q: So if you sat in a chair for four or six hours out of an
eight-hour day, you think that would cause problems for
you?
A: Yes.
A.R. 47-48. Durham thus testified that she could not sit for four to six
hours a day, five days a week.1
_________________________________________________________________
1 A functional assessment completed by Dr. Whitehurst-Cook, Dur-
ham's treating physician, supports Durham's testimony concerning her
physical limitations. Dr. Whitehurst-Cook found that Durham could
carry less than ten pounds occasionally and less than five pounds fre-
quently. Dr. Whitehurst-Cook also found that Durham could not walk or
stand for more than twenty minutes at a time or more than twenty min-
utes in an eight-hour day, and that Durham could not sit for more than
fifteen minutes at a time.
5
After Durham's testimony, the ALJ posed the following hypotheti-
cal question to a vocational expert:
Assume you have a person capable of lifting objects weigh-
ing up to ten pounds at a time. They have the ability to [sit]
for periods of four to six hours in an eight-hour work day,
alternating their position. They have the ability to, further
ability to be able to stand and walk for periods of up to four
hours overall in an eight-hour work day. Considering the
claimant's age, education and past work experience you
have described, do any jobs exist in significant numbers in
the regional [and] national economy, jobs not requiring any
significant reaching, handling, climbing, stooping, crouch-
ing and jobs avoiding unprotected heights and moving
machinery?
A.R. 50. The vocational expert responded that approximately 18,000
"general clerical" positions within the local metropolitan area and
over a million "general clerical" positions nationally fit that descrip-
tion.
On October 23, 1996, the ALJ issued a decision denying Durham's
application for benefits. The ALJ found that Durham faces severe
physical impairment due to herniated discs and back pain. The ALJ
also found that Durham's testimony was generally credible; however,
he found that her testimony regarding the severity of her impairments
and their effect on her functional abilities not to be credible.
The ALJ relied heavily on the part of Durham's testimony where
she told him that she could sit for four to six hours in an eight-hour
day if she could stand whenever she wanted. The ALJ thus concluded
that while Durham was unable to return to her previous employment,
she retained the ability to perform sedentary work.
Durham appealed to the Appeals Council. On April 2, 1998, the
Appeals Council affirmed the ALJ's decision, making the ALJ's deci-
sion the final decision of the Commissioner. Durham then appealed
the Commissioner's decision to the district court pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3). The court assigned the case to a
magistrate judge, who recommended affirming the ALJ's decision.
6
Durham filed timely objections to the magistrate judge's recommen-
dation. The district court overruled those objections and found that
substantial evidence supported the ALJ's decision. The district court
therefore granted summary judgment in favor of the Commissioner.
Durham appeals, arguing that the ALJ's decision to deny her benefits
was not supported by substantial evidence.
II.
A.
We review an ALJ's denial of disability benefits to determine
whether the ALJ's decision was supported by substantial evidence.
See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). Substantial
evidence is "more than a mere scintilla" of evidence, but only such
evidence "as a reasonable mind might accept as adequate to support
a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). We must address whether the ALJ has analyzed all of the rel-
evant evidence and sufficiently explained his rationale in crediting
certain evidence in conducting our "substantial evidence" inquiry. See
Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528 (4th Cir. 1998).
In evaluating whether Durham was entitled to disability benefits,
the ALJ followed the five-step sequential evaluation of disability set
forth in the Social Security regulations. Under the regulations, an ALJ
must consider, in sequence, whether a claimant (1) is working, (2) has
a severe impairment, (3) has an impairment that meets or equals the
requirements of a listed impairment, (4) can return to her past work,
and (5) if not, whether she retains the capacity to perform specific
jobs that exist in significant numbers in the national economy. See 20
C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of pro-
duction and proof during the first four steps of the inquiry. See Hunter
v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam). If the claim-
ant can carry her burden through the fourth step, the burden shifts to
the Commissioner to show that other work is available in the national
economy that the claimant can perform despite her condition. See id.In the instant case, the Commissioner does not dispute that Durham
has satisfied the first four steps of the sequential evaluation: Durham
7
has severe back pain that prevents her from returning to her previous
employment. The sole issue on appeal therefore is whether the Com-
missioner has satisfied his burden of establishing that Durham can
perform other work that exists in significant numbers in the national
economy.
B.
In response to a question by the ALJ, Durham testified that she
could stand for four hours in a workday and sit for four to six hours
if she could stand up and sit down whenever she wanted to. Durham's
testimony on this point was the centerpiece of the ALJ's finding that
Durham could perform sedentary work. The ALJ found that
[b]ased on the entire record, I find that the claimant has the
residual functional capacity to lift up to 10 pounds of
weight, stand or walk for periods of four hours overall in an
eight-hour workday, and sit for periods of four to six hours
in an eight-hour workday. These functional abilities are con-
sistent with sedentary work.
A.R. 13.
The ALJ, however, failed to cite any of the contrary testimony
adduced by Durham's attorney during his examination. Durham testi-
fied that she could not sit for four to six hours a day for five days a
week. Rather, Durham testified that she would probably have to rest
for two days if she sat for four to six hours on a given workday. Dur-
ham also testified that she could not work for eight hours without
lying down. The ALJ did not cite any of this testimony in finding that
Durham could sit for four to six hours in an eight-hour workday.
The ALJ also failed to explain the basis for his conclusion that
Durham was capable of lifting ten pounds. Durham testified at the
hearing that she can lift a gallon of milk, which the ALJ claimed
weighed eight pounds; however, on examination by her attorney, Dur-
ham clarified that she can only lift the milk and place it on a counter
next to the refrigerator. Durham claimed that she cannot carry the
eight-pound jug across the room. The ALJ failed to explain how his
8
determination that Durham can lift ten pounds is consistent with her
claim that she cannot carry a an eight-pound jug of milk more than
a couple feet.2
Perhaps the ALJ could have rejected Durham's testimony, finding
that her explanations to her attorney were a disingenuous attempt to
backpedal on her responses to his questions. On the record before us,
however, we do not know why the ALJ disregarded parts of Dur-
ham's testimony. He may have ignored it; he may have found that it
was not credible; he may have decided that he wanted to deny her
claim for benefits regardless of her testimony.
We thus are faced with a situation in which we cannot know why
the ALJ rejected relevant evidence in the record. In similar situations,
we have held that a remand is necessary to clarify the basis for the
decision to deny benefits. For instance, in Gordon v. Schweiker, 725
F.2d 231 (4th Cir. 1984), the court vacated and remanded the ALJ's
decision denying benefits, stating that
[t]he courts . . . face a difficult task in applying the substan-
tial evidence test when the Secretary has not considered all
relevant evidence. Unless the Secretary has analyzed all evi-
dence and has sufficiently explained the weight he has given
to obviously probative exhibits, to say that his decision is
supported by substantial evidence approaches an abdication
of the court's "duty to scrutinize the record as a whole to
determine whether the conclusions reached are rational."
Id. at 236 (quoting Arnold v. Secretary , 567 F.2d 258, 259 (4th Cir.
1977) (ellipsis in original)); Murphy v. Bowen , 810 F.2d 433, 437 (4th
Cir. 1987) (remanding the case to the ALJ because the ALJ did not
explain adequately why he credited one doctor's views over those of
another doctor); see also Bill Branch Coal Corp. v. Sparks, 213 F.3d
186 (4th Cir. 2000) (refusing to "guess" at the ALJ's rationale for dis-
counting relevant evidence). The ALJ's failure to explain adequately
_________________________________________________________________
2 Durham also testified that she cannot carry or pour a ten-pound bag
of sugar. The ALJ failed to state why he disregarded this testimony in
finding that Durham can lift ten pounds.
9
the basis for his findings thus compels us to conclude that his decision
to deny benefits to Durham was not supported by substantial evidence.3
III.
The substantial evidence standard of review does not insulate an
ALJ's decision from appellate review where, as here, he fails to
explain adequately the basis for his findings. We therefore vacate the
judgment of the district court and remand with instructions to remand
to the ALJ for further proceedings in accordance with this opinion.
VACATED AND REMANDED WITH INSTRUCTIONS
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3 The ALJ's reliance on the vocational expert's testimony is flawed for
similar reasons. We have held that "[i]n order for a vocational expert's
opinion to be relevant or helpful, it must be based upon a consideration
of all other evidence in the record, and it must be in response to proper
hypothetical questions which fairly set out all of claimant's impair-
ments." Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (citation omit-
ted). Here, the vocational expert based his opinion on the ALJ's
inadequately explained findings. The vocational expert's opinion there-
fore does not support the ALJ's decision.
10