Posts Tagged With: ALJ

Social Security Administration Routinely Refuses To Obey Decisions Of Federal Courts

 

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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MARK W. HAGANS,

Appellant

v.

Michael Astrue

COMMISSIONER OF SOCIAL SECURITY

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On Appeal from the United States District Court

for the District of New Jersey

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Before: FUENTES and CHAGARES, Circuit Judges, and POGUE, Chief Judge.1

(Opinion filed: September 14, 2012)

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OPINION

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CHAGARES, Circuit Judge

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Mark Hagans appeals the cessation of his Social Security disability insurance benefits following a determination by the Social Security Administration (“SSA”) that he was no longer disabled. Hagans argues the District Court erred by reviewing his disability status as of September 1, 2004 — the day on which, according to the SSA, Hagans’s disability ceased. This contention requires us to decide what level of deference, if any, we should afford the SSA’s Acquiescence Ruling interpreting the cessation provision of the Social Security Act, 42 U.S.C. § 423(f), as referring to the time of the SSA’s initial disability determination. Hagans further argues that substantial evidence does not support the SSA’s conclusion that he was not fully disabled as of September 1, 2004. For the following reasons, we will affirm.

I.

Until January 2003, Mark Hagans worked as a security guard for a federal agency and as a sanitation worker for the city of Newark. That month, however, when he was 44 years old, Hagans began suffering from chest pains. He required immediate open-heart surgery to repair a dissecting aortic aneurysm, a potentially life-threatening condition that occurs when a tear in the aorta’s inner layer allows blood to enter the

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middle layer. Hagans was hospitalized for the surgery and recovery during intermittent periods between January 29, 2003, and February 28, 2003. He then spent approximately three months in a rehabilitation center, where he underwent physical and speech therapy. He left this facility sometime in April or May of 2003.

In addition to his heart ailment, Hagans claims he has underlying medical problems relating to his cerebrovascular and respiratory systems, as well as hypertension and dysphagia (difficulty in swallowing). Hagans also complains of other issues, such as insomnia and back pain, which he alleges affect his ability to stand, sit, and lift. He has also been diagnosed with depression.

 

 

Hagans’s initial application for disability benefits was granted and he began receiving benefits as of January 30, 2003, his determined onset of disabilities date (DOD). On September 21, 2004, however, pursuant to an updated Residual Function Capacity (“RFC”) assessment showing Hagans’s condition had improved, the SSA determined that Hagans was no longer eligible for benefits because his disability had terminated on September 1, 2004. Hagans’s appeal to a Disability Hearing Officer was denied. Hagans continued to pursue an appeal and received a hearing before an Administrative Law Judge (“ALJ”) in September 2008, at which he was unrepresented by counsel.2

The record reflects that Hagans received a great deal of medical care between his surgery in January 2003 and the termination of his benefits in September 2004. The ALJ considered several evaluations of Hagans’s condition, most of which were completed in mid-2004. For instance, the ALJ reviewed an August 31, 2004, report from Dr. Ramesh Patel, Hagans’s treating physician. Dr. Patel diagnosed Hagans with obesity, post-surgery illness, hypertension, hearing problems, possible arthritis of the neck, and shortness of breath. This report showed that an EKG of Hagans’s heart was normal and a chest X-ray indicated clear lungs and no

2 Hagans’s hearing had originally been scheduled for May 14, 2008, but it was adjourned so that Hagans could obtain counsel. He again appeared unrepresented on the rescheduled date, and the hearing proceeded without counsel.

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sign of heart failure. Dr. Patel indicated Hagans’s range of motion was limited, but did not opine on his ability to perform work-related activities.

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The ALJ also considered the evaluation of Dr. Burton Gillette, the SSA’s staff physician, consultative examiner (CE) which was performed on September 15, 2004. Dr. Gillette’s evaluation included an RFC assessment which indicated that Hagans could not stand or walk for more than four hours per day, but could sit for about six hours during an eight-hour day and had improved lifting abilities. Further, the ALJ considered the evaluation of Ernest Uzondu, a disability adjudicator, conducted on the same day as Dr. Gillette’s RFC assessment. Uzondu determined that Hagans could not perform his past relevant work (PRW), but that he was able to perform other work. Finally, the ALJ considered an internal medicine evaluation from Dr. David Tiersten conducted on March 16, 2006. In this 2006 evaluation, Dr. Tiersten diagnosed Hagans with obesity, post-surgery illness, chest pain, back pain, leg pain, and hypertension, but found that Hagans did not have significant limitations to prevent him from working.

Although Hagans claims he is limited to standing for 4-5 minutes, sitting for 30 minutes, walking only at a slow pace, and lifting no more than ten pounds, the record reflects disagreement among the doctors about Hagans’s abilities. A vocational expert (VE) testified that there were jobs available that someone with Hagans’s infirmities could perform, such as ticket seller, assembler of small products, and garment sorter. At the time of the ALJ hearing, Hagans represented that he spent his time watching television, helping at church, napping, and visiting a nearby park. He claims he requires assistance shaving and showering. As of September 1, 2004, he had not engaged in any substantial gainful activity (SGA) following his heart surgery.

3 Approximately two years later, Dr. Patel examined Hagans and concluded he was “totally and permanently disabled.” Soc. Sec. R. 230–31. Dr. Patel reiterated that Hagans suffered from the same ailments but did not explain why his assessment had become so dire during the two intervening years.

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On February 26, 2009, the ALJ issued a decision finding that Hagans’s disability had ceased on September 1, 2004. Specifically, the ALJ found that Hagans’s condition had improved and he was capable of engaging in substantial gainful activity (SGA), although he could not perform his past relevant work (PRW). On May 21, 2009, the Appeals Council (A/C) denied review, which rendered the ALJ’s opinion the final decision of the SSA.

Hagans then filed the instant action. On April 8, 2011, the District Judge affirmed the SSA’s decision that Hagans’s eligibility for disability benefits ended on September 1, 2004. Hagans has continued to receive benefits pending the outcome of this appeal. Hagans also filed a new application for disability insurance benefits on January 20, 2010.4

II.

The District Court had jurisdiction to review the final decision of the Commissioner of Social Security under  We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

We exercise plenary review over all legal issues. We review an ALJ’s decision under the same standard of review as the District Court, to determine whether there is substantial evidence on the record to support the ALJ’s decision. Substantial evidence has been defined as “more than a mere scintilla”; it means “such relevant evidence as a reasonable mind might accept as adequate.” “Where the ALJ’s findings of fact are supported by substantial evidence, we are bound by those findings, even if we would have decided the factual inquiry differently.”

III.

4 This application was originally dismissed based upon a finding of res judicata, but its current status is unclear.

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We begin with the issue to which we will devote the bulk of this opinion: Hagans’s assertion that the District Court erred by finding that the relevant date for determining whether he continued to be disabled was the date on which the SSA asserts that his disability had ceased — September 1, 2004 — rather than the date of the ALJ’s hearing or the date of the ALJ’s ruling (September 22, 2008 or February 26, 2009, respectively). Use of one of these later dates would bolster Hagans’s claim for disability benefits because he had advanced into a different age category by the time of the ALJ’s hearing.5 The SSA contends that review of Hagans’s disability should be confined to the date on which the SSA first found that Hagans was no longer disabled — that is, September 1, 2004.6

The provision we must interpret to resolve this dispute is 42 U.S.C. § 423(f), which is entitled “Standard of review for termination of disability benefits.” This section provides:

A recipient of benefits . . . may be determined not to be entitled to such benefits on the basis of a finding that the physical or mental impairment

5 Specifically, in September 2004 Hagans was in his mid-40s, which is considered a “younger individual” according to the Social Security regulations. At the time of the ALJ hearing, however, he was 50 years old, which placed him in the “closely approaching advanced age” category.

6 We note that the SSA did not issue its decision finding that Hagans was disabled as of September 1, 2004 until three weeks later, on September 21, 2004. It would be a rare case in which this three-week period had some impact on the analysis of whether a benefits recipient remained disabled, and, in this case, it has none. We will thus use the date on which Hagans’s disability purportedly ceased — September 1, 2004 — for the purposes of our analysis. We need not resolve what should happen when there is an analytically relevant distinction between the date of the SSA’s decision and the date of cessation. To the extent that we refer to “the date on which the SSA found that Hagans’s disability had ceased,” we intend that phrase to mean September 1, 2004.

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on the basis of which such benefits are provided has ceased, does not exist, or is not disabling only if such finding is supported by–

(1) substantial evidence which demonstrates that–

(A) there has been any medical improvement in the individual’s impairment or combination of impairments (other than medical improvement which is not related to the individual’s ability to work), and

(B) the individual is now able to engage in substantial gainful activity . . . Any determination under this section shall be made on the basis of all the evidence available in the individual’s case file, including new evidence concerning the individual’s prior or current condition

which is presented by the individual or secured by the Commissioner of Social Security.

 

In support of its position, the SSA asserts that we should follow the Acquiescence Ruling (AR) it issued in 1992, which interpreted § 423(f) as requiring the evaluation of a benefits recipient’s disability status as of the time that the SSA first determined that cessation of benefits was proper. Specifically, the ruling stated:

SSA interprets the term “current,” as used in the statutory and regulatory language concerning termination of disability benefits, to relate to the time of the cessation under consideration in the initial determination of cessation. In making an initial determination that a claimant’s disability has ceased, SSA considers the claimant’s condition at the time SSA is making the initial determination. In deciding the appeal of that cessation determination, the Secretary considers

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what the claimant’s condition was at the time of the cessation determination, not the claimant’s condition at the time of the disability hearing/reconsideration determination, ALJ decision or Appeals Council decision. However, if the evidence indicates that the claimant’s condition may have again become disabling subsequent to the cessation of his or her disability or that he or she has a new impairment, the adjudicator solicits a new application.

Social Security Acquiescence Ruling 92-2(6), 57 Fed. Reg. 9262 (Mar. 17, 1992) (hereinafter “AR 92-2(6)”). We must decide how, if at all, this ruling should affect our analysis.7

A.

We begin with the Supreme Court’s watershed decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), which dramatically increased the level of deference courts must generally give to administrative agencies’ interpretations of statutes. Chevron requires courts to conduct a two-step inquiry. Under the first step, “[w]hen a court reviews an agency’s construction of the statute which it administers,” it must ask “whether Congress has directly spoken to the precise question at issue.” Id. at 842. If Congress has resolved the question, the clear intent of Congress binds both the agency and the court. (“Under Chevron neither party addressed this issue in its brief. We therefore requested supplemental letter briefs from both parties following oral argument. We were particularly interested in learning whether the SSA had employed the policy outlined in AR 92-2(6) prior to the issuance of that ruling. The SSA’s letter brief cited no evidence indicating the existence of the policy prior to 1992. Accordingly, we must assume the policy was formulated contemporaneously with the issuance of the AR. , [if] the congressional intent is clear . . . , the inquiry

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ends; the court and agency ‘must give effect to the unambiguously expressed intent of Congress.’” Under the second step, if “Congress has not directly addressed the precise question at issue,” because “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”. The agency’s interpretation will prevail so long as “it is a reasonable interpretation of the statute — not necessarily the only possible interpretation, nor even the interpretation deemed most reasonable by the courts.”

This presumption of strong deference serves several goals. As the Court explained in Chevron, affording agencies significant discretion to interpret the law they administer recognizes the value of agency expertise and the comparatively limited experience of the judiciary where an interpretation requires specialized knowledge. Moreover, the Chevron doctrine promotes national uniformity in regulatory policy, thereby enabling agencies to avoid the difficulty of enforcing different rules depending on the jurisdiction — a benefit that the SSA has cited as the primary reason for its issuance of Acquiescence Rulings. See Social Security Disability Insurance Program: Hearing Before the Senate Comm. on Finance

, 98th Cong., 2d Sess. 115 (Jan. 25, 1984) (statement of SSA Commissioner Martha A. McSteen) (testifying that the SSA’s “policy of nonacquiescence is essential to insure that the agency follows its statutory mandate to administer [the Social Security] program in a uniform and consistent manner”).

Where Chevron deference is inappropriate, a court may instead apply a lesser degree of deference pursuant to Skidmore v. Swift & Co., 323 U.S. 134 (1944). More will be said about the nature of a Skidmore analysis, but for now it suffices to note that Skidmore requires a court to assign a weight to an administrative judgment based on “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later

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pronouncements, and all those factors which give it power to persuade, if lacking power to control.”

Regardless of whether we apply Chevron or Skidmore

8 There is one other deference doctrine worthy of a brief mention. In Auer v. Robbins, 519 U.S. 452, 462 (1997), the Supreme Court considered the Secretary of Labor’s interpretation of a regulation (not a statutory provision) promulgated pursuant to the Fair Labor Standards Act. Despite the fact that the Secretary’s interpretation came “in the form of a legal brief,” the Court held it was nonetheless entitled to strong deference because it was not a “post hoc rationalization” and it represented the agency’s “fair and considered judgment.” Id. The Court explained that deference was warranted because “requiring the Secretary to construe his own regulations narrowly would make little sense, since he is free to write the regulations as broadly as he wishes, subject only to the limits imposed by the statute.” Id. at 463. deference, our initial inquiry requires us to determine whether § 423(f) is ambiguous. We conduct this ambiguity analysis as

The liberal standard for deference under Auer might arguably apply to the parallel regulation to § 423(f), 20 C.F.R. § 404.1594 (which replaces the statutory phrase “now able to engage in substantial activity” with “currently able to engage in substantial activity”), were it not for the Supreme Court’s decision in Gonzales v. Oregon, 546 U.S. 243 (2006). There, the Court declined to give strong deference to an interpretive memorandum by the Attorney General because the regulation reviewed in the memorandum used the same terminology as the original statute from which it was derived. The Court explained that this type of “parroting regulation” does not receive deference under Auer because “[a]n agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.” Id. at 256–58. Given the similarity between the disputed terms occurring in the statute and the regulation, AR 92-2(6) cannot receive deference under Auer.

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a matter of statutory interpretation which is necessarily antecedent to our deference inquiry because we need reach the deference question

only if we find the statutory language is ambiguous.  If we decide that the statute is unambiguous, we are bound to give effect to the words of Congress.

Our goal when interpreting a statute is to effectuate Congress’s intent. “Because we presume that Congress’ intent is most clearly expressed in the text of the statute, we begin our analysis with an examination of the plain language of the relevant provision.” In trying to divine the intent of Congress, we should consider the entire scope of the relevant statute.  (“The Supreme Court has stated consistently that the text of a statute must be considered in the larger context or structure of the statute in which it is found.”). When a statute is “complex and contains many interrelated provisions,” it may be “impossible to attach a plain meaning to provisions in isolation.”

Two other courts have found that the terms “current” and “now” contained in § 423(f) are unambiguous. The first case to address whether a disability benefits recipient’s eligibility must be evaluated from the date of cessation or the time of the ALJ’s hearing was Difford v. Secretary of Health & Human Services

9 The fact that we are conducting an ambiguity analysis that is indistinguishable from the first step of Chevron should not be misconstrued as a decision to apply Chevron deference. As we have made clear above, we do not reach the deference question unless the statute is ambiguous. , 910 F.2d 1316 (6th Cir. 1990). There, the Court of Appeals for the Sixth Circuit held that the ALJ should adjudicate the claimant’s disabilities at the time of his

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or her hearing, such that if the claimant were found to be disabled at the time of the hearing — even if he was not disabled as of the cessation date — his benefits should not be terminated. The court placed special emphasis on the fact that § 423(f) requires an ALJ to review the recipient’s “current” status as of “now,” which it found to be a clear, unambiguous indication that Congress had intended the ALJ’s review to focus on the benefits recipient at the time of the ALJ’s hearing.

Id. at 1320.10

The second case to find the terms “now” and “current” unambiguous was Aikens v. Shalala

, 956 F. Supp. 14, 20 (D.D.C. 1997). The district court adopted the Court of Appeals for the Sixth Circuit’s view and thus required an evaluation of the recipient contemporaneous with the ALJ’s hearing. The court explained:

The plain meaning of the statute, the legislative history and the SSA’s own regulations compel [the Sixth Circuit’s construction of the words “now” and “current”]. Although the Secretary faults the Sixth Circuit for focusing on the plain meaning of the words “now” and “current,” it is an “elementary principle of statutory construction that ordinarily the plain meaning of statutory language controls, i.e., ‘words should be given their common and approved usage.’”

Two years later, however, the Court of Appeals for the Seventh Circuit disagreed. In Johnson v. Apfel

10 AR 92-2(6) was issued to clarify the SSA’s disagreement with Difford. The Court of Appeals for the Sixth Circuit had an opportunity to reconsider Difford after the issuance of AR 92-2(6), but it elected not to do so in light of the factual differences between that case and Difford.

We are in accord with the Court of Appeals for the Seventh Circuit in viewing the terms “now” and “current” as susceptible to more than one reasonable explanation when viewed in context. In drafting a section about the cessation of benefits — benefits that were necessarily granted in some prior determination — it makes sense that the statutory drafters would have to distinguish between the unfavorable cessation decision and the earlier, favorable decision to grant benefits. The ambiguity in § 423(f) stems from its reliance on the use of the passive voice. The statute provides, “A recipient of benefits . . . may be determined not to be entitled to such benefits . . . .” The language thus lacks the necessary identifying factor: who

is making the determination about entitlement to benefits? It would be logical to presume that it is the ALJ who makes the determination, given the ALJ’s role in holding a hearing and reviewing the evidence, but to avoid ambiguity the statute would need to have been drafted more clearly.

Our consideration of a related, more specific provision of § 423 does not resolve this ambiguity. Section 423(d)(5)(B), which applies to both an initial determination of disability and a determination about whether such disability is ongoing, provides, in relevant part:

In making any determination with respect to whether an individual . . . continues to be under a disability, the Commissioner of Social Security shall consider all evidence available in such individual’s case record, and shall develop a complete medical history of at least the preceding twelve months for any case in which a determination is made that the individual is

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not under a disability. In making any determination the Commissioner of Social Security shall make every reasonable effort to obtain from the individual’s treating physician (or other treating health care provider) all medical evidence . . . necessary in order to properly make such determination . . . .

42 U.S.C. § 423(d)(5)(B). The term “Commissioner” is synonymous with the SSA and thus may be fairly understood to encompass all levels of review within the operation of the agency. It is true that the SSA’s decision is not final until after the ALJ hearing and any subsequent appeal occur. Nonetheless, the Commissioner begins review of any cessation case with an initial cessation determination. Because the use of the term “Commissioner” in § 423(d)(5)(B) — a provision which also applies to a cessation proceeding — refers to the agency broadly, rather than specifying the level of review within the agency, it does not unambiguously identify the ALJ as the person making a benefits eligibility determination during a cessation proceeding.

For these reasons, we conclude that § 423(f) is ambiguous.

C.

Having determined that § 423(f) is ambiguous, we must now decide whether this is the type of case in which Chevron deference is proper, or whether Skidmore

instead provides the appropriate framework for reviewing the SSA’s interpretation contained in AR 92-2(6). The Supreme Court issued a trilogy of opinions between 2000 and 2002 which guide our analysis.

The first case in the trilogy is Christensen v. Harris County, 529 U.S. 576 (2000), which involved an informal agency adjudication.11

11 We recognize that the adjudication at issue in Christensen is different than the Acquiescence Ruling (AR) in this matter because, unlike an agency ruling, an adjudication is without There, the Court considered whether

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Chevron deference should be given to an opinion letter written by the Acting Administrator of the Department of Labor’s Wage and Hour Division. The Supreme Court first explained that “[i]nterpretations such as those in opinion letters — like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law — do not warrant Chevron-style deference.” Id. at 587.12

“general or particular applicability and future effect.” 5 U.S.C. § 551; see also 33 Charles Alan Wright & Charles H. Koch, Federal Practice and Procedure § 8342 (1st ed. 2006) (explaining that a decision made through an informal advisory letter or opinion constitutes an adjudication, not a ruling, because these decisions “determine individual rights or duties”). Nonetheless, the similarities regarding the lack of notice-and-comment procedures between these two agency actions render Christensen a useful guidepost. The Court held that we must instead

12 Even before the Supreme Court decided Christensen, we recognized that Chevron deference was not appropriate for all forms of agency interpretations. In Cleary, 167 F.3d 801, we considered policy memoranda and letters issued by the Health Care Financing Administration and the Department of Health and Human Services. We noted that determining the proper level of deference “becomes more complicated when the agency’s interpretation is contained in informal views or guidelines outside the course of notice and comment procedures.” Id. at 807. In such circumstances, “[w]e have questioned what degree of deference, if any, to afford an agency’s views.” Id. We then explained that Chevron had not overruled the Supreme Court’s longstanding rule of deference for informal agency interpretations as contained in Skidmore, 323 U.S. at 140. After applying Skidmore deference, we found the agency’s “policy conforms to the language of the statute, to its legislative history, and to the purpose for which it was enacted” and was therefore entitled to deference. Cleary, 167 F.3d at 811–12.

While Cleary remains good law, subsequent developments in the law have complicated our deference analysis. In Cleary, we noted that informal agency interpretations “will receive some deference by the court if

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give the agency’s interpretation “respect” pursuant to the Supreme Court’s decision in Skidmore. Id. (quoting Skidmore, 323 U.S. at 140).13 The Christensen majority held that, upon weighing the Skidmore

factors, the Department of Labor’s opinion letter was insufficiently persuasive and was therefore unworthy of deference.

In United States v. Mead Corp., 533 U.S. 218 (2001), the Court considered a tariff classification ruling by the United States Customs Service. Id. at 224–25. The Court explained that Chevron was premised on the idea that Congress had explicitly or implicitly delegated authority to an agency to administer a statute, thereby empowering the agency to interpret the statute so long as its interpretation is consistent with the statutory language. Id. at 226–27 (noting Chevron deference applies “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority”). An express delegation occurred when Congress “‘explicitly left a gap for an agency to fill,’” rendering “any ensuing regulation . . . binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute.” Id. at 227 (quoting Chevron, 467 U.S. at 843–44). Deciding whether Congress implicitly delegated authority to the agency requires a court to consider “the agency’s generally conferred authority and other statutory circumstances that [indicate] Congress would expect the agency to be able to speak with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law.” Id.

they are consistent with the plain language and purposes of the statute and if they are consistent with prior administrative views.” Id. at 808. However, as we will explain, we must now consider the additional (albeit similar) factors set forth in Barnhart v. Walton, 535 U.S. 212, 222 (2002). at 229. The Court noted that “a very

13 We applied this rule in Madison v. Resources for Human Development, Inc., 233 F.3d 175, 186 (3d Cir. 2000), explaining that “[a]s to the persuasiveness of agency interpretive guidelines, we note our continued reliance on the framework laid out in Skidmore v. Swift.”

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good indicator of delegation” would be “congressional authorizations to engage in the process of rulemaking or adjudication that produces regulations or rulings for which deference is claimed.”

Id. This is so because in general, when Congress provides “for a relatively formal administrative procedure . . . [that fosters] fairness and deliberation,” it makes sense to assume that “Congress contemplates administrative action with the effect of law.” Id. at 230. Nonetheless, the level of formality did not fully resolve the question because precedent showed that Chevron deference might also be appropriate “even when no such administrative formality was required and none was afforded.” Id. at 231. Upon consideration of the lack of process and “any other circumstances reasonably suggesting that Congress ever thought of classification rulings as deserving [Chevron] deference,” the Court declined to give the tariff classification ruling Chevron deference. Id. The Court remanded for a determination of whether Skidmore

deference was appropriate instead.

A year after Mead, the Supreme Court addressed deference to a decision made by the SSA in Barnhart v. Walton, 535 U.S. 212 (2002). There, the Court considered a SSA regulation eventually adopted after notice-and-comment procedures, which related to a policy that the agency had initially adopted through less formal means — including a Social Security Ruling issued some 20 years prior. Id.

at 219. The Court disagreed with the recipient’s contention that this earlier ruling should not be worthy of deference and explained:

[T]he fact that the Agency previously reached its interpretation through means less formal than “notice and comment” rulemaking, does not automatically deprive that interpretation of the judicial deference otherwise its due. . . . Mead pointed to instances in which the Court has applied Chevron deference to agency interpretations that did not emerge out of notice-and-comment rulemaking. It indicated that whether a court should give such deference depends in significant part upon the interpretive method used and the nature of the question at issue.

The Court did not employ the “force of law” distinction enunciated in Mead

, instead focusing its inquiry on Congress’s grant of authority, explicit or implied, as determined by analyzing whether the specific statutory scheme suggests that Congress has granted an agency the power to interpret its own statutory terms. The Court further explained:

[T]he interstitial nature of the legal question, the related expertise of the Agency, the importance of the question to administration of the statute, the complexity of that administration, and the careful consideration the Agency has given the question over a long period of time all indicate that Chevron provides the appropriate legal lens through which to view the legality of the Agency interpretation here at issue.

Id. at 222. Reiterating this point, the Court concluded, “The statute’s complexity, the vast number of claims that it engenders, and the consequent need for agency expertise and administrative experience lead us to read the statute as delegating to the Agency considerable authority to fill in, through interpretation, matters of detail related to its administration.

A few guiding principles can be gleaned from the above cases in determining whether to apply Chevron deference or lower Skidmore deference.14

14 We have infrequently applied the rules set forth in Christensen, Mead, and Barnhart. Perhaps the closest analogous case to the type of agency action we address here is Mercy Catholic Medical Center v. Thompson, 380 F.3d 142, 152 (3d Cir. 2004). There, we declined to apply Chevron deference to an informal interpretive rule issued by the Secretary of the Department of Health and Human Services “as an official instruction to fiscal intermediaries” that was Our overarching

concern is whether “Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” Mead, 533 U.S. at 226–27. In addition, we will consider the factors set forth in Barnhart: (1) the interstitial nature of the legal question; (2) the related expertise of the agency; (3) the importance of the question to administration of the statute; (4) the complexity of that administration; and (5) the careful consideration the agency has given the question over a long period of time. 534 U.S. at 222.15

later published in the Federal Register. Id. We noted that “agency interpretive guidelines ‘do not rise to the level of a regulation and do not have the effect of law.’” Id. at 155 (quoting Brooks v. Vill. of Ridgefield Park, 185 F.3d 130, 135 (3d Cir. 1999)). We also explained that Chevron deference is inappropriate for “informal agency interpretations” because allowing strong deference “‘would unduly validate the results of an informal process.’” Id. (quoting Madison, 233 F.3d at 185). After applying Skidmore, we held that the agency’s interpretation was not persuasive and declined to afford it any deference. Id. at 155–58.

15 Many of these questions can be resolved by examining the language and structure of the statute that an agency is charged with administering. Regarding the complexity of the regulatory program at issue, it should be noted that courts more readily grant Chevron deference when a case involves a “complex and highly technical regulatory program,” which “require[s] significant expertise and entail[s] the exercise of judgment grounded in policy concerns.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (quotation marks omitted). The length of time an agency has considered the question also relates to whether the agency has been consistent in its interpretation over the years. In general, more deference is afforded to longstanding agency interpretations, although this single factor is not itself outcome-determinative. See Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 487 (2004) (“We normally accord particular deference to an agency interpretation of longstanding duration . . . .”); Cleary, 167

A somewhat detailed description of the nature of an Acquiescence Ruling is necessary to aid our deference analysis. Broadly, agencies are empowered to interpret a statute through the processes of rulemaking, adjudication, or licensing. Administrative Procedure Act (“APA”), 5 U.S.C. § 551, et seq. Rulemaking is defined as the “agency process for formulating, amending, or repealing a rule,” and a rule is defined as an “agency statement of general or particular applicability and future effect.” Id. § 551(4), (5). The rulemaking process must involve the notice-and-comment procedures outlined in the APA unless there is good cause or the proposed rule falls into the category of “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” Id. § 553(b)(3)(A). In the context of the administration of the Social Security Act, the SSA issues two types of rulings which do not involve notice-and-comment procedures: Social Security Rulings, which address both administrative and judicial decisions, and Acquiescence Rulings,16 which relate only to decisions by federal appellate courts.

F.3d at 808 (providing that informal agency interpretations “will receive some deference by the court if they are . . . consistent with prior administrative views”). But see Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005) (affording Chevron deference to an interpretation by the Federal Communications Commission despite the recent change in policy at the agency because “[a]gency inconsistency is not a basis for declining to analyze the agency’s interpretation under the Chevron framework”); Chevron, 467 U.S. at 863–64 (“An initial agency interpretation is not instantly carved in stone. On the contrary, the agency . . . must consider varying interpretations and the wisdom of its policy on a continuing basis.”).

Social Security and Acquiescence

16 Although it is clear that the process for formulating an Acquiescence Ruling does not require notice-and-comment, the procedure employed by the SSA is somewhat opaque because the agency’s internal guidelines do not explain the process for drafting and approving an Acquiescence Ruling or who bears the responsibility for doing so.

Rulings

, available at http://www.ssa.gov/OP_Home/rulings/ rulings-pref.html (last visited August 8, 2012).

Acquiescence Rulings “explain how SSA will apply a holding by a United States Court of Appeals that is at variance with [the agency’s] national policies for adjudicating claims.” Acquiescence Ruling Definition, available at http://www.ssa.gov/regulations/def-ar.htm (last visited August 8, 2012); see also 20 C.F.R. § 404.985(b) (stating that the SSA will issue an Acquiescence Ruling when it “determine[s] that a United States Court of Appeals holding conflicts with [the SSA’s] interpretation of a provision of the Social Security Act or regulations”); Social Security Acquiescence Ruling 05–1(9), 70 Fed. Reg. 55,656 (Sept. 22, 2005) (“An acquiescence ruling explains how [the SSA] will apply a holding in a decision of a United States Court of Appeals that [the SSA] determine[s] conflicts with [its] interpretation of a provision of the Social Security Act (Act) or regulations when the Government has decided not to seek further review of that decision or is unsuccessful on further review.”). The content of this type of ruling “describe[s] the administrative case and the court decision, identif[ies] the issue(s) involved, and explain[s] how [the SSA] will apply the holding, including, as necessary, how the holding relates to other decisions within the applicable circuit.” 20 C.F.R. § 404.985(b). Acquiescence Rulings are announced through publication “in the ‘Notices’ section of the Federal Register under the authority of the Commissioner of Social Security and are effective upon publication.” Acquiescence Ruling Definition, supra. Importantly, “ARs do not have the force and effect of the law or regulations,” although the SSA requires that they be “binding on all components of SSA unless superceded, rescinded, or modified by another ruling.” Id.17

17 It might appear from this brief description that the name “Acquiescence Ruling” is something of a misnomer given that these rulings are issued to indicate the SSA’s policy of refusing to follow the decision of a Court of Appeals. However, such rulings specifically explain the SSA’s general policy that it will comply with the appellate ruling within the circuit where the ruling was issued except to the extent that it elects to relitigate the issue. See 20 C.F.R. § 404.985(a)

We now turn to AR 92-2(6) which, as noted, contains the SSA’s interpretation of § 423(f). Without elucidating the SSA’s reasoning, the Acquiescence Ruling provides that “the term ‘current,’ as used in the statutory and regulatory language concerning termination of disability benefits, [] relate[s] to the time of the cessation under consideration in the initial determination of cessation.” AR 92-2(6). During the course of a cessation proceeding, the ruling explains, the relevant factor is “the claimant’s condition . . . at the time of the cessation determination, not the claimant’s condition at the time of the disability hearing / reconsideration determination, ALJ decision or Appeals Council decision.” Id. The ruling also discloses the SSA’s policy that any condition that became disabling during the pendency of a proceeding would result in the solicitation of a new application for benefits. AR 92-2(6) concludes by explaining that, in light of its disagreement with Difford

Several factors counsel against according , it would comply with that decision in the Sixth Circuit only.

Chevron deference to AR 92-2(6). For instance, Acquiescence Rulings do not undergo notice-and-comment before their passage. We also note that Acquiescence Rulings lack the force of law, a view supported by the SSA’s language in its internal policies, see Social Security and Acquiescence Rulings, supra (“Acquiescence Rulings do not have the force and effect of the law or regulations.”), and our prior jurisprudence.18 See

(“We will apply a holding in a United States Court of Appeals decision that we determine conflicts with our interpretation of a provision of the Social Security Act or regulations . . . . within the applicable circuit . . . .”). Such compliance is generally proper to avoid exceeding the scope of the agency’s power, because it is axiomatic that it is within the province of the judiciary “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

18 It is worth explaining what we mean when we refer to “the force of law.” The Supreme Court has explained that a rule has “the ‘force and effect of law’” when it possesses “certain substantive characteristics”

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Mercy, 380 F.3d at 155 (noting that “agency interpretive guidelines do not rise to the level of a regulation and do not have the effect of law” (quotation marks omitted)). Further, it is unclear how much care the SSA exerted in crafting AR 92-2(6). The ruling spans a total of three-and-a-half pages, two of which are dedicated to describing the circumstances of the case that prompted its issuance. The SSA devotes only one paragraph to its interpretation of the statute and does not explain how or why it reached its interpretation, a factor which weighs against deference. See Packard v. Pittsburgh Transp. Co., 418 F.3d 246, 252–53 (3d Cir. 2005) (holding a single-paragraph “informal and cursory” letter by the Department of Transportation interpreting the Motor Carrier Act was not entitled to Chevron

deference).

There are, however, several institutional concerns which counsel towards Chevron deference. The Social Security Act imbues the SSA with “exceptionally broad authority to prescribe standards” for effectuating the purpose of the statute. Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981); see

and is “the product of certain procedural requisites.” Chrysler Corp. v. Brown, 441 U.S. 281, 301 (1979). An “important touchstone” for distinguishing whether a rule has the force of law is whether the rule “affect[s] individual rights and obligations.” Id. at 302 (quotation marks omitted). While Acquiescence Rulings are “binding” within the SSA, this binding effect does not extend beyond the agency to bear on the “individual rights and obligations” of the people and entities regulated by the SSA. Thus, as the SSA recognizes, Acquiescence Rulings lack the force of law. 42 U.S.C. § 405(a) (directing the SSA to “adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same” for disability cases). In other words, the Social Security Act does not explicitly cover a vast number of details related to the day-to-day administration of the Social Security program, and Congress has relied on the SSA to fill this abyss. Moreover, the Supreme Court has observed that “the Social Security hearing system is probably the largest adjudicative agency in the western world.”

Barnhart v. Thomas, 540 U.S. 20, 28–29 (2003) (quotation marks omitted). Given the vast scope and complexity of the program, “[t]he need for efficiency is self-evident.” Id. at 29. We are thus faced with a situation where the agency has a great deal of expertise in administering a complex program and has been entrusted with a great deal of power by Congress. See Nat’l Cable & Telecomms., 545 U.S. at 980–81 (deferring to a Federal Communications Commission regulation under Chevron because Congress gave “the Commission the authority to promulgate binding legal rules; the Commission issued the order under review in the exercise of that authority; and no one questions that the order is within the Commission’s jurisdiction”); cf. Gonzales, 546 U.S. at 268–69 (declining to give Chevron

deference to the Attorney General’s interpretation of the Controlled Substances Act because the Attorney General lacked the expertise and authority to make such an interpretation). The issue here — the timing for review of a disability benefits recipient who may no longer be disabled — is of great importance to the administration of the program, and variance in the internal rules for such a determination could create an administrative nightmare at all levels of review. This is especially true in light of the length of time that appears to pass between the initial cessation date and the hearing before an ALJ, which in this case spanned four years. It is also worth noting that the interpretation here is not a recent invention; it has been in effect for twenty years and appears to have been consistently applied by the SSA outside of the Sixth Circuit. We have no doubt that despite the brevity of AR 92-2(6), it represents the considered judgment of the SSA in determining how to manage a highly detailed and complex statutory scheme.

After consideration of the above factors, we are persuaded that Skidmore deference provides the proper lens through which to view AR 92-2(6).19

19 We need not decide whether, under the fact-intensive test we have described, any Acquiescence Ruling could merit Chevron deference. Congress has imbued the SSA with the authority to enact regulations with legal effect, but the SSA elected not to do so and instead

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formulated its policy through the informal mechanism of an Acquiescence Ruling, a type of ruling that is non-binding except within the agency. It is not entirely clear from the Supreme Court’s precedent whether the lack of the “force of law” is always fatal to the application of

Chevron, but in any event, the lack of legal effect of this ruling, combined with the absence of formal notice-and-comment rulemaking and the failure of the SSA to describe its reasoning, cannot be counterbalanced by the SSA’s institutional desire for uniformity and ease of administration. 20

* * * * *

We therefore hold that Skidmore, not Chevron

, provides the type of deference applicable to our review of AR 92-2(6).

D.

Having determined that we will employ Skidmore deference in reviewing AR 92-2(6), the central question we are tasked with answering is whether the SSA’s interpretation is persuasive. We do not believe this question can be answered by conducting an independent review of the statute and then comparing our analysis with that of the agency, for such a process would not endow the agency’s interpretation with the “respect” that it may be entitled to under Skidmore. Instead, to decide whether we should defer to an agency’s interpretation after we have determined that Skidmore provides the appropriate lens through which to view that interpretation, we begin by considering how much

20 We note our decision to apply Skidmore deference to AR 92-2(6) is contrary to the only other court of appeals decision addressing what type of deference should be given to this ruling. See Johnson, 191 F.3d 770 (applying Chevron deference to AR 92-2(6) without discussion). Because the Court of Appeals for the Seventh Circuit’s opinion in Johnson predates the Supreme Court’s decisions in Christensen, Mead, and Barnhart, we do not view its application of Chevron as persuasive. deference the agency’s opinion is entitled to.

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As noted, Skidmore deference requires a court to assign a “weight” to an administrative judgment based on “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” 323 U.S. at 140. Such weight is appropriate, the Skidmore Court held, because “rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Id. We, like many of our sister courts of appeals, have adopted Mead’s conceptualization of the Skidmore framework as a “sliding-scale” test in which the level of weight afforded to an interpretation varies depending on our analysis of the enumerated factors. Mead, 533 U.S. at 228 (“The fair measure of deference to an agency administering its own statute has been understood to vary with circumstances[,] . . . produc[ing] a spectrum of judicial responses, from great respect at one end, to near indifference at the other.” (citations omitted)); see Ebbert v. DaimlerChrysler Corp., 319 F.3d 103, 115 (3d Cir. 2003) (referring to certain categories of documents as being “at the lower end of the Skidmore scale of deference”); see also Kristin E. Hickman & Matthew D. Krueger, In Search of the Modern Skidmore Standard, 107 Colum. L. Rev. 1235, 1271 (2007) (determining, after a five-year review of all courts of appeals cases applying Skidmore, that “the sliding-scale model of Skidmore

deference dominates the independent judgment model among the federal circuit courts of appeals”).

Through our previous applications of Skidmore to informal agency interpretations, some important factors have emerged. For example, we have noted that more deference is granted under Skidmore’s sliding scale test when the agency’s interpretation is “issued contemporaneous[ly] with a statute.” Madison, 233 F.3d at 187. Less deference is afforded when an agency’s interpretation is inconsistent with its prior positions. See Mercy, 380 F.3d at 155 (holding the Skidmore factors counseled against affording the agency’s interpretation deference given the agency’s “internally conflicting positions” and the unreasonableness of its

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interpretation). We have held that, when determining what deference to give to an agency’s actions under

Skidmore, “[t]he most important considerations are whether the agency’s interpretation ‘is consistent and contemporaneous with other pronouncements of the agency and whether it is reasonable given the language and purpose of the Act.’” DDNR, 685 F.3d at 284 (quoting Cleary

, 167 F.3d at 808).

Additionally, many of the same circumstances we found relevant for determining whether to apply Chevron deference are also useful for deciding the level of deference due under Skidmore. For example, the relative expertise of the SSA in administering a complex statutory scheme and the agency’s longstanding, unchanging policy regarding this issue counsel towards a higher level of deference. See Alaska Dep’t of Envtl. Conservation, 540 U.S. at 492 (holding that the Environmental Protection Agency’s (“EPA”) interpretation of the Clean Air Act (“CAA”) in internal guidance memoranda merited sufficient “respect” under Skidmore for the Court to defer to the agency’s “longstanding, consistently maintained interpretation” because the EPA was the “expert federal agency charged with enforcing the [CAA]”). On the other hand, the brevity of AR 92-2(6) and its underdeveloped reasoning counsel toward a lower level of deference. See Packard, 418 F.3d at 252–53 (holding that a brief letter by the Department of Transportation interpreting the Motor Carrier Act was entitled to no deference under Skidmore

because the letter “simply provide[d] no reasoning or analysis that a court could properly find persuasive”).

Applying these factors to the instant matter reveals that a relatively high level of deference is warranted. As we have explained above, the SSA is an agency to which Congress has given “exceptionally broad authority” to manage a complex, nationwide administrative system. Schweiker, 453 U.S. at 43. The need for uniformity in such an organization cannot be doubted. Moreover, administering the Social Security Act is the central purpose of the SSA, and the SSA has developed a massive body of expertise during the 56 years of the disability insurance program’s existence. Although the text of the Acquiescence Ruling does not explain the reasoning behind the SSA’s adoption of its interpretation, the SSA appears to have consistently applied this policy during the past 20 years and its reasons for creating a policy which sets a fixed date for review of a cessation determination are not difficult to discern. In sum, these considerations counsel toward applying a fairly high level of deference on the Skidmore scale.

After applying an appropriately high level of deference under Skidmore, we find the SSA’s interpretation of § 423(f) sufficiently persuasive to defer to it. While it may not be the interpretation we would adopt if we were to engage in an independent review, the interpretation contained in AR 92-2(6) represents the considered judgment of the agency and is in accordance with the SSA’s statutory mandate to set rules for the governance of the disability insurance program. Essentially, the SSA conceptualizes the cessation scheme as one in which there is a single determination followed by several layers of review. Under this view, the terms “now” and “current” in § 423(f) refer to the date of the initial finding that a recipient’s disability has ceased. Therefore, the ALJ’s role in a cessation proceeding is to review the SSA’s determination that a benefits recipient was not eligible for benefits as of a fixed, specific date, not to determine whether he might have become eligible at some later time. The SSA’s interpretation finds support in the fact that the Social Security Act requires that a “period of disability” be “continuous” and requires the filing of an application for benefits in order to begin such a period. 42 U.S.C. § 416(i)(2). The Social Security program is thus designed to prevent any breaks in the continuity of a period of disability and the attendant benefits that flow from such a disability. As the Court of Appeals for the Seventh Circuit recognized, allowing an ALJ to consider a benefits recipient’s status several years after the initial determination that the recipient was no longer disabled would potentially allow a break in continuity in contravention of the statute. See Johnson, 191 F.3d at 747 (deferring to the SSA’s interpretation in AR 92-2(6) because of the potential lack of continuity in the disability period and the fact that allowing a revised evaluation of the recipient at the time of the ALJ hearing would require the ALJ “to adjudicate disability for a new period of time — from the cessation of disability benefits . . . until the date of the ALJ’s decision”). Moreover, the Social Security Act was designed to ensure that benefits would accrue only during periods of time in which a person is truly unable to work. If Hagans was capable of working as of September 1, 2004, but became classifiable as disabled on some later date, allowing him to receive disability benefits for that interim period when he was not disabled would thwart the purpose of the SSA.

In response to these arguments, Hagans contends that our opinion in Reefer v. Barnhart, 326 F.3d 376 (3d Cir. 2003), requires that we consider an individual’s status at the time of the ALJ hearing. That case, however, requires only that an ALJ consider evidence produced after the cessation date, not the status of the disability benefits recipient as of some length of time — usually years — after the SSA determined that person was no longer disabled. Id. at 381. Indeed, the Social Security Act unambiguously compels consideration of later-acquired evidence by the ALJ. See 42 U.S.C. § 423(f) (“Any determination under this section shall be made on the basis of all the evidence available in the individual’s case file, including new evidence concerning the individual’s prior or current condition which is presented by the individual or secured by the Commissioner of Social Security.”). While the fact that all evidence available must be considered may support Hagans’s construction of § 423(f), it is not dispositive because evidence acquired after the cessation date can nonetheless be relevant for the purposes of determining the individual’s capabilities on the cessation date.21

If the evidence is sufficient to show that Hagans was not disabled as of September 1, 2004, he would not be entitled to benefits as of that date. Otherwise, a fully recovered disability benefits recipient who later relapsed could receive benefits for several years during which he was not actually disabled and was capable of work. Moreover, the ALJ’s role in a Social Security cessation proceeding is to review the SSA’s determination that a benefits recipient was

21 We also note that the ALJ in this case did consider all relevant evidence introduced at the time of the hearing, as required, including medical reports dating from 2005 and 2006.

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not eligible for benefits as of a certain date, not to determine whether he might have become eligible at some later time. Indeed, after the ALJ denied Hagans’s appeal, he filed a new application for disability benefits covering a more recent time period on the grounds that his impairments have worsened since the SSA determined that his disability ended.

Given our deference to the SSA’s persuasive interpretation of § 423(f) under Skidmore

, we will affirm the District Court’s finding that the SSA correctly evaluated Hagans’s condition as of the date on which the agency first found that Hagans’s eligibility for disability benefits ceased.

IV.

Hagans cursorily argues that the ALJ’s adverse findings are not supported by substantial evidence. Because this argument is plainly meritless, we need address it only briefly.

When the SSA finds that a disability benefits recipient no longer has the physical or mental impairment to render him disabled, the SSA may determine that the recipient is no longer entitled to disability benefits. 42 U.S.C. § 423(f). Substantial evidence must demonstrate that the recipient’s condition has experienced “medical improvement” such that the recipient is “able to engage in substantial gainful activity.” Id.

A key part of this analysis involves comparing the severity of the impairment at the time of the most favorable recent disability determination with the current severity of that impairment. 20 C.F.R. § 404.1594(b)(7), (c)(1). The Social Security regulations require that benefit recipients be subject to the following set of eight evaluation questions when the SSA is attempting to determine whether they remain disabled:

(1) Are you engaging in substantial gainful activity? If you are (and any applicable trial work period has been completed), we will find disability to have ended (see paragraph (d)(5) of this section).

(2) If you are not, do you have an impairment or combination of impairments which meets or equals the severity of an impairment listed in appendix 1 of this subpart? If you do, your disability will be found to continue.

(3) If you do not, has there been medical improvement as defined in paragraph (b)(1) of this section? If there has been medical improvement as shown by a decrease in medical severity, see step (4). If there has been no decrease in medical severity, there has been no medical improvement. (See step (5).)

(4) If there has been medical improvement, we must determine whether it is related to your ability to do work in accordance with paragraphs (b)(1) through (4) of this section; i.e., whether or not there has been an increase in the residual functional capacity based on the impairment(s) that was present at the time of the most recent favorable medical determination. If medical improvement is not related to your ability to do work, see step (5). If medical improvement is related to your ability to do work, see step (6).

(5) If we found at step (3) that there has been no medical improvement or if we found at step (4) that the medical improvement is not related to your ability to work, we consider whether any of the exceptions in paragraphs (d) and (e) of this section apply. If none of them apply, your disability will be found to continue. If one of the first group of exceptions to medical improvement applies, see step (6). If an exception from the second group of exceptions to medical improvement applies, your disability will be found to have ended. The second group of exceptions to medical improvement may be considered at any point in this process.

(6) If medical improvement is shown to be related to your ability to do work or if one of the first group of exceptions to medical improvement applies, we will determine whether all your current impairments in combination are severe (see § 404.1521). This determination will consider all your current impairments and the impact of the combination of those impairments on your ability to function. If the residual functional capacity assessment in step (4) above shows significant limitation of your ability to do basic work activities, see step (7). When the evidence shows that all your current impairments in combination do not significantly limit your physical or mental abilities to do basic work activities, these impairments will not be considered severe in nature. If so, you will no longer be considered to be disabled.

(7) If your impairment(s) is severe, we will assess your current ability to do substantial gainful activity in accordance with § 404.1560. That is, we will assess your residual functional capacity based on all your current impairments and consider whether you can still do work you have done in the past. If you can do such work, disability will be found to have ended.

(8) If you are not able to do work you have done in the past, we will consider one final step. Given the residual functional capacity assessment and considering your age, education and past work experience, can you do other work? If you can, disability will be found to have ended. If you cannot, disability will be found to continue.

Id. § 404.1594(f). Within the context of a termination proceeding, there is a burden-shifting scheme in which a recipient must first “introduce[] evidence that his or her condition remains essentially the same as it was at the time of the earlier determination.” Early v. Heckler, 743 F.2d 1002, 1007 (3d Cir. 1984). Once a recipient has done so, “the burden shifts to the [SSA] to ‘present evidence that there has been sufficient

improvement in the [recipient’s] condition to allow the [recipient] to undertake gainful activity.’”

Hagans points to no evidence that contradicts the ALJ’s determination that his medical impairments underwent an improvement between January 2003 and September 2004, and thus fails to shift the burden to the SSA. The medical reports and the RFC indicated that, although Hagans was no longer capable of doing his past relevant work, his increased mobility and the decrease in the severity of his conditions rendered him fit to engage in sedentary work. Moreover, although Hagans seems to argue that the ALJ did not properly consider his mental illness (depression) in conjunction with his other problems, the ALJ did consider Hagans’s mental problems and determined they did not meet the criteria to constitute a listed impairment. She also considered his depression in determining the type of work Hagans could perform.

As the record amply supports the ALJ’s finding that Hagans ceased to be disabled on September 1, 2004, we will affirm the District Court’s finding that this determination was supported by substantial evidence.

V.

For the foregoing reasons, we will affirm the judgment of the District Court.

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Social Security Judges Under Investigation

May 1st, 2012: An independent study of administrative law judges (ALJ) who work for the Social Security Administration is underway, with findings due out next year in 2013. The review is being conducted by the Administrative Conference of the United States. This government-policy think-tank is likely to issue new policy recommendations to judges on how to handle Social Security Disability cases. These policy changes could have an impact on attorneys and para-legals, who practice before the Social Security Bar.

The Social Security Administration ordered the study. There have been reports of gross inconsistencies in rulings from judge to judge. Critics have pointed out that over 100 judges approve more than 85% of all cases that come before them, while one judge in Tennessee approves over 99% of the cases that he hears. Conversely, there is a judge in Texas who only approves 13 cases out of every 100.

Another factor which has sparked this investigation is the gross disparity in the length of hearings, that is, the time a Social Security claimant actually spends in front of a judge. After waiting for an average of 2 years for their day in court, most claimants spend less than an hour in an actual hearing. Most cases last about an hour.  Some judges were found to make snap decisions in just a few minutes. There are reports that some judges simply flip a coin to decide whether a claimant wins or loses. Since the judges do not even write their own decisions, some decision writers have complained that the judges’ decision writing instructions consist of nothing more than a “smiley face’ or a “frowning face” on a piece of paper. And the worst case of all are the reports of judges who decide over 200 cases a month without even bothering to hold a hearing. They simply “pay the cases” to get rid of them. This is called “paying down the backlog” in the language of the Social Security Office. The backlog of over 770,000 disability claimants could be a factor in the rapid decisions.

(Read more at http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757)

For years attorneys have been known to forum shop. They search for Hearing Offices that have a high degree of reversals of cases on appeal; or, they search for judges known to be more likely to grant benefits.The Social Security Administration has halted the process of informing applicants of which judge will preside over their hearings. This practice will prevent SSD attorneys from “shopping” for a lenient judge.

However, if judges become stricter in their approval standards, it could prompt more applicants to seek professional representation to increase their chances of being one of the 10,000,000 Americans who will receive their share of the $130,000,000,000 in SSD claims in 2013. This could help SSD attorneys and representatives increase their number of clients in the long run.

The recommendations that result from the study are scheduled for release in November 2012. The new procedures will be non-binding, but are geared toward refining and leveling the approval process.

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How To Win Your Disability Case And Make The Government Pay For Your Attorney

THOMAS v. ASTRUE

LAURA M. THOMAS, Plaintiff-Appellant, v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant-Appellee.

United States Court of Appeals, Tenth Circuit.

Before TYMKOVICH and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit Judge.

ORDER AND JUDGMENT
TIMOTHY M. TYMKOVICH, Circuit Judge.
This appeal requires us to consider a magistrate judge’s discretion to deny attorney’s fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. After a magistrate judge remanded Laura M. Thomas’s disability claim to the Commissioner of Social Security for further analysis, Ms. Thomas applied for attorney’s fees under the EAJA. The magistrate judge denied her application for fees, Ms. Thomas appealed, and we now affirm.
Ms. Thomas originally applied for disability insurance benefits, claiming she was disabled on October 28, 2004, by deep vein thrombosis and obesity. Her case proceeded to a hearing before an administrative law judge (ALJ), at which a medical expert testified that Ms. Thomas became disabled in May 2007. Without discussing this testimony, the ALJ concluded that Ms. Thomas did indeed become disabled on May 1, 2007, but her insured status had already expired on December 31, 2006. Consequently, the ALJ denied benefits, prompting Ms. Thomas to seek judicial review in the district court.
Ms. Thomas argued for a remand on the ground (among others) that the ALJ improperly evaluated the medical expert’s opinion. She acknowledged that the expert’s opinion concerning her date of onset was predicated on evidence of neurological damage in her lower extremities discovered in 2007. But she argued that there was other evidence documenting neurological changes as early as February 2005, yet the ALJ did not explain why he credited the expert’s opinion over this other evidence. The magistrate judge agreed that the ALJ failed to properly evaluate the medical expert’s opinion, see 20 C.F.R. § 404.1527(f)(2)(ii) (requiring ALJ to evaluate opinion evidence under relevant factors and explain weight accorded to opinion), and he therefore remanded the case to the agency to allow the ALJ to explain the weight accorded to the expert’s opinion.
Having succeeded in obtaining a remand, Ms. Thomas returned to the magistrate judge and requested $5,995.10 in attorney’s fees pursuant to § 2412(d). In her application, she argued that the remand order was a favorable final judgment and the Commissioner’s position was not substantially justified. The Commissioner, for his part, opposed a fee award, asserting that the issues before the magistrate judge “involve[d] a genuine dispute, reasonable people could differ as to the appropriateness of the matter, and the ALJ’s decision was justified `for the most part.'”  The Commissioner explained that the ALJ’s decision was affirmed on all grounds except the medical expert’s opinion, which only required further discussion of the weight assigned; otherwise, the ALJ’s finding of May 1, 2007, as the date of onset was consistent with the expert’s opinion. Hence, the Commissioner maintained that his position was substantially justified and fees should therefore be denied. The magistrate judge agreed with the Commissioner and held that “[t]he government’s position . . . was not only substantially justified, any reasonable person would have viewed it as substantively correct, but technically defective.”
We review the denial of an EAJA claim for abuse of discretion. The EAJA entitles a prevailing party to recover reasonable attorney fees from the government “`unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.'”  “The test for substantial justification in this circuit is one of reasonableness in law and fact.”  In other words, “the government’s position must be justified to a degree that could satisfy a reasonable person,” but it need not necessarily be correct. 
We agree that the government’s position was substantially justified. The dispositive issue for the magistrate judge was whether the ALJ properly evaluated the medical expert’s opinion. The ALJ cited substantial evidence demonstrating that Ms. Thomas’s condition had deteriorated until she was disabled in May 2007, but he did not discuss how (if at all) he weighed the medical expert’s opinion. Although the Commissioner defended the ALJ’s decision, he did so on substantially justifiable grounds, noting that the ALJ was not obligated to find that Ms. Thomas was disabled after her insured status expired. He also emphasized that the ALJ’s finding of disability in May 2007 was consistent with the expert’s opinion, which was itself substantial evidence supporting the ALJ’s decision.
These arguments were rejected by the magistrate judge, but that does not render the government’s position unreasonable. Rather, as the magistrate judge observed, “the record clearly supported the ALJ’s decision so long as the ALJ simply stated the weight he assigned to the medical expert’s opinion.”  Indeed, the magistrate judge “fully anticipated that on remand the ALJ would promptly revise his decision to identify the weight he gave the medical expert without altering his ultimate conclusion that [Ms. Thomas] was not disabled prior to the onset date found by the ALJ.”  These circumstances demonstrate that the magistrate judge acted within his discretion in denying attorney’s fees.
Accordingly, the judgment of the district court is AFFIRMED.
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Social Security Benefits Can Be Terminated If A Judge Determines There Has Been Medical Improvement

SIMONE v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION

BARBARA A. SIMONE, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee.

United States Court of Appeals, Eleventh Circuit.

Before HULL, MARCUS and BLACK, Circuit Judges.



Barbara Simone appeals from the district court’s order which affirmed the Administrative Law Judge‘s (“ALJ”) termination of her disability insurance benefits pursuant to 42 U.S.C. § 405(g).
On appeal, Simone argues that:
(1) substantial evidence did not support the ALJ’s determination that Simone’s medical condition had substantially improved as of May 1, 2005;
(2) substantial evidence did not support the ALJ’s determination that the improvement in Simone’s medical condition was related to her ability to do work; and
(3) the ALJ erred by failing to give greater weight to the opinion of Simone’s treating physician, Dr. Robert Bianco, regarding her ability to work. After thorough review, we affirm.
We review a Social Security decision “to determine if it is supported by substantial evidence and based on proper legal standards.”  Substantial evidence consists of “such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Id. (quotation omitted). The burden rests with the claimant to prove that she is disabled and entitled to Social Security benefits. See 20 C.F.R. § 404.1512(a).
An ALJ may terminate a claimant’s benefits upon finding that there has been medical improvement in the claimant’s impairment or combination of impairments related to the claimant’s ability to work and the claimant is now able to engage in substantial gainful activity. 42 U.S.C. § 423(f)(1). To determine whether disability benefits should be terminated, the ALJ must conduct a multi-step evaluation process and determine:
(1) Whether the claimant is engaging in substantial gainful activity;
(2) If not gainfully employed, whether the claimant has an impairment or combination of impairments which meets or equals a listing;
(3) If impairments do not meet a listing, whether there has been medical improvement;
(4) If there has been improvement, whether the improvement is related to the claimant’s ability to do work;
(5) If there is improvement related to claimant’s ability to do work, whether an exception to medical improvement applies;
(6) If medical improvement is related to the claimant’s ability to do work or if one of the first groups of exceptions to medical improvement applies, whether the claimant has a severe impairment;
(7) If the claimant has a severe impairment, whether the claimant can perform past relevant work;
(8) If the claimant cannot perform past relevant work, whether the claimant can perform other work.
See 20 C.F.R. § 404.1594(f).
First, we reject Simone’s claim that substantial evidence does not support the ALJ’s determination that Simone’s medical condition had substantially improved because the ALJ ignored evidence that she also continuously suffered from other severe cardiovascular conditions, specifically carotid artery disease.
To determine if there has been medical improvement, the ALJ must compare the medical evidence supporting the most recent final decision holding that the claimant is disabled with new medical evidence.  “Medical improvement” is defined as “any decrease in the medical severity of [the] impairment(s) which was present at the time of the most recent favorable medical decision that [the claimant was] disabled . . . .” 20 C.F.R. § 404.1594(b)(1); see also 20 C.F.R. § 404.1594(c)(1).
Here, substantial evidence supports the ALJ’s finding that there had been substantial improvement in Simone’s medical condition as of May 1, 2005.
As Simone’s medical records demonstrate, a February 23, 2005, echocardiogram showed that her cardiomyopathy had improved — showing an improved ejection fraction of approximately 50 percent, on the lower limit of normal — so that it no longer met the Medical Listing. Moreover, Simone’s treating cardiologist, Dr. Bianco, said in letters and treatment notes on several occasions between February 2002 and April 2005 that Simone’s cardiomyopathy was stable, she was doing well, and she was able to exercise, at one point walking up to one mile each day. Dr. John Bolla’s March and April 2005 notes and communications also support the ALJ’s finding of substantial medical improvement, as he reported that Simone exercised 30 minutes a day, 3 times a week; carotid artery sonography revealed mild stenosis of 30 percent bilateral internal carotid arteries, resulting in a diagnosis of “minor carotid artery disease”; she was doing very well, with no clinical signs of congestive heart failure; the most recent echocardiogram had demonstrated a normal ejection fraction of 50 percent; and the holter monitor had not demonstrated any significant abnormalities.
Although March 13, 2000, arteriograms showed mild to moderate (less than 50 percent) narrowing of the internal carotid arteries, high grade stenosis (greater than 90 percent) at the origin of the external carotid arteries, and moderate stenosis (50 to 60 percent) at the origin of the left vertebral artery, other medical records between 2000 and May 1, 2005, demonstrated that Simone’s carotid artery disease was not a major focus of her medical treatment and that it perhaps even improved during this time period. Dr. Bianco’s medical notes included carotid artery disease in his assessment on April 25, 2001, but most of his later assessments did not include that diagnosis. Dr. Bianco also noted no symptoms of carotid artery disease, such as a carotid bruit, between April 25, 2001, and April 2005. Furthermore, as the ALJ noted, Simone’s February 25, 2005, Doppler sonography tests revealed mild (30 percent) bilateral internal carotid artery stenosis — which is a significant improvement over the March 2000 test results. And finally, the fact that, in 2008, Simone underwent two surgeries to treat her carotid artery disease is not relevant to whether her medical impairment had medically improved as of May 1, 2005, the date on which her disability ended.
We are also unpersuaded by Simone’s claim that substantial evidence did not support the ALJ’s determination that the improvement in Simone’s medical condition was related to her ability to do work. If the ALJ determines that there has been medical improvement, then he must determine whether that improvement is related to the claimant’s ability to do work. See 20 C.F.R. § 404.1594(f)(4). The regulations provide that “[m]edical improvement is related to [the claimant’s] ability to work if there has been a decrease in the severity . . . of the impairment(s) present at the time of the most recent favorable medical decision and an increase in [the claimant’s] capacity to do basic work activities . . . .” 20 C.F.R. § 404.1594(b)(3). The regulations provide specific instructions for how this determination will be made if the claimant’s previous disability determination was based on the fact that her impairment met or equaled the severity contemplating by the Listing of Impairments:
If [the Social Security Administration’s] most recent favorable decision was based on the fact that [the claimant’s] impairment(s) at the time met or equaled the severity contemplated by the Listing of Impairments in appendix 1 of this subpart, an assessment of [the claimant’s] residual functional capacity would not have been made. If medical improvement has occurred and the severity of the prior impairment(s) no longer meets or equals the same listing section used to make [the] most recent favorable decision, [the Social Security Administration] will find that the medical improvement was related to [the claimant’s] ability to work.. . . If there has been medical improvement to the degree that the requirement of the listing section is no longer met or equaled, then the medical improvement is related to [the claimant’s] ability to work.
20 C.F.R. § 404.1594(c)(3)(i).
In this case, the ALJ properly determined that, because the February 2005 echocardiogram showed an improved ejection fraction of 50 percent, in combination with evidence from her other medical records, Simone no longer had an impairment or combination of impairments equal to the same listing that was met at the time of her last disability determination. Simone’s initial disability determination was based on her diagnosis for cardiomyopathy and the fact that the results of the November 2001 echocardiogram showed an ejection fraction of 15 percent. This diagnosis met the requirements for Medical Listing 4.02(B), which, among other factors, required a documented ejection fraction of 30 percent or less. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, Medical Listing 4.02(B) (2002). Thus, no assessment of Simone’s residual functional capacity was made at the time of her initial disability determination. See 20 C.F.R. § 404.1594(c)(3)(i). Because Simone no longer met or equaled the same listing that she met when she was previously found disabled, substantial evidence necessarily supports the ALJ’s finding that her medical improvement was related to her ability to do work. See id.
Finally, we find no merit to Simone’s argument that the ALJ erred by failing to give greater weight to the opinion of Simone’s treating physician, Dr. Bianco, regarding her ability to work. “[T]he opinion of a treating physician is entitled to substantial weight unless good cause exists for not heeding the treating physician’s diagnosis.”  see 20 C.F.R. § 404.1527(d)(2) (providing that, generally, more weight is given to opinions from treating sources). However, we have found “good cause” to afford less weight to a treating physician’s opinion where the opinion is conclusory or inconsistent with the physician’s own medical records or where the evidence supports a contrary finding. Furthermore, the ALJ “is free to reject the opinion of any physician when the evidence supports a contrary conclusion.” 
On this record, the ALJ did not err by discounting the Dr. Bianco’s opinions regarding Simone’s ability to work. As for Dr. Bianco’s residual functional capacity evaluation, Dr. Bianco provided no information about any clinical data or other objective medical evidence on which he based his opinion, only signing the form in the space provided for that information. Dr. Bianco’s response to Simone’s counsel’s letter requesting confirmation that the residual functional capacity evaluation was not contradicted by his treatment notes provided no additional support for his opinion. And, the December 29, 2005, and April 4, 2007, letters Dr. Bianco wrote “[t]o whom it may concern,” expressing his opinion that Simone was still disabled and unable to work, were also not supported by any medical evidence.
Moreover, substantial evidence supports the ALJ’s determination that Dr. Bianco’s opinions regarding Simone’s ability to work were contradicted by his treatment notes and other medical evidence. As discussed previously, the February 2005 echocardiogram demonstrated an improved ejection fraction of approximately 50 percent, on the lower limit of normal. In addition, Dr. Bianco’s own letters and treatment notes reported on several occasions between February 2002 and April 2005 that Simone’s cardiomyopathy was stable, she was doing well, she was able to walk up to one mile each day, and she stayed active caring for her mother. Further, Dr. Bolla’s notes and communications demonstrated that Simone exercised 30 minutes a day, 3 times a week, she was doing very well, with no clinical signs of congestive heart failure; the 2005 echocardiogram demonstrated a normal ejection fraction of 50 percent; and the holter monitor had not demonstrated any significant abnormalities. Lastly, the ALJ adequately set forth his reasons for discounting Dr. Bianco’s opinions regarding Simone’s ability to work, as he explained that he gave no weight to Dr. Bianco’s opinions because they were inconsistent with Bianco’s treatment notes and objective medical evidence. Accordingly, we affirm.
AFFIRMED.
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If Your Treating Doctor Says Your Are Disabled, The Judge Must Grant You Benefits.

TALLEY v. ASTRUE

April 11, 2012.


Modern Social Security card.

Modern Social Security card. (Photo credit: Wikipedia)

MEMORANDUM OPINION AND ORDER

BETH DEERE, Magistrate Judge.
Plaintiff Brenda L. Talley appeals the final decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying her claim for Disability Insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”) and Supplemental Security Income (“SSI”) under Title XVI of the Act. For the following reasons, the decision of the Commissioner must be REVERSED and REMANDED.
I. Background:
Ms. Talley filed for DIB and SSI on May 15, 2008, claiming disability since June 23, 2007. Ms. Talley alleged that she was disabled as a result of diabetes, arthritis, anxiety, morbid obesity, malabsorption syndrome, agoraphobia, hypertension, supraventricular tachycardia, obsessive compulsive disorder, neuropathy, retinopathy, endometriosis, degenerative joint disease, chronic insomnia, and deep vein thrombosis. After denials initially and upon reconsideration, Ms. Talley requested a hearing before an Administrative Law Judge (“ALJ”).  The ALJ held a hearing on July 6, 2009, at which Ms. Talley appeared with her attorney and testified.  The ALJ also heard testimony from a vocational expert.
The ALJ issued a decision on November 4, 2009, finding that Ms. Talley was not disabled for purposes of the Act. On January 20, 2011, the Appeals Council denied her request for review, making the ALJ’s decision the Commissioner’s final decision.

At the time of the hearing before the ALJ, Ms. Talley was 47 years old and was living alone in a house next door to her mother and brother. (Tr. 19, 40-41) She had previous work as a registered nurse.

II. Decision of the Administrative Law Judge:
The ALJ followed the required five-step sequence to determine: (1) whether the claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a severe impairment; (3) if so, whether the impairment (or combination of impairments) met or equaled a listed impairment; (4) if not, whether the impairment (or combination of impairments) prevented the claimant from performing past relevant work; and (5) if so, whether the impairment (or combination of impairments) prevented the claimant from performing any other jobs available in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)-(g); 416.920(a)-(g).
The ALJ found that Ms. Talley had not engaged in substantial gainful activity since her alleged disability onset date but noted that she had received unemployment benefits into the first quarter of 2008, indicating she was available and willing to return to work during that period.  The ALJ also found that Ms. Talley had the following severe impairments: diabetes mellitus, back disorder (degenerative arthritis), obesity, and mood disorder.  According to the ALJ, Ms. Talley did not have an impairment or combination of impairments, however, that met or equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1526, 416.926).
The ALJ determined that Ms. Talley retained the residual functional capacity (“RFC”) to perform sedentary work except as follows: she could occasionally lift/carry ten pounds and frequently lift/carry less, stand/walk for two hours; occasionally climb, balance, crawl, kneel, stoop, and crouch. She had moderate restriction in her ability to maintain the activities of daily living, social functioning, and concentration, persistence, and pace. She was moderately limited in her ability to understand, remember, and carry out detailed instructions; make judgments on simple work related decisions; interact appropriately with the public; and respond appropriately to usual work situation and routine work changes. She could perform work where interpersonal contact was incidental to the work performed, complexity of tasks is learned and performed by rote, with few variables, little judgment was required, and supervision was simple, direct, and concrete.
The ALJ concluded that Ms. Talley could not perform her past relevant work as a registered nurse. (Tr. 58) Relying on the vocational expert’s responses to interrogatories, the ALJ concluded Ms. Talley could perform work as a production worker, credit authorizer, or interviewer and that she was not disabled within the meaning of the Act.
III. Analysis:
A. Standard of Review.

In reviewing the Commissioner’s decision, this Court must determine whether there is substantial evidence in the record as a whole to support the decision.  Substantial evidence is something less than a preponderance, but it must be, “sufficient for reasonable minds to find it adequate to support the decision.”

In reviewing the record as a whole, the Court must consider both evidence that detracts from the Commissioner’s decision and evidence that supports the decision; but, the decision cannot be reversed, “simply because some evidence may support the opposite conclusion.” 
B. Severe Impairments and Residual Functional Capacity
Ms. Talley complains that the ALJ erred by failing to find that her diabetic retinopathy, supraventricular tachycardia (SVT), peripheral neuropathy, and hip pain were severe impairments.  She also complains that the ALJ’s residual functional capacity assessment is not supported by substantial evidence in the record.
Ms. Talley had the burden of showing that her impairments were severe; however, this burden is not a great one.  Rather, step two of the sequential evaluation process provides a de minimus screening device to dispose of groundless claims. 
An impairment is severe if the effect of the impairment on the claimant’s ability to perform basic work is more than slight or minimal.  Basic work activities are the abilities and aptitudes necessary to do most jobs, such as hearing, standing, walking, sitting, lifting, handling, remembering simple instructions, using judgment, and dealing with changes in a routine work setting. 20 C.F.R. §404.1521. The Commissioner must resolve any doubt as to whether the required showing of severity has been made in favor of the claimant. SSR 85-28 at *4 (1985).
Once it is determined that an individual has a severe impairment for purposes of step two, the combined effect of all impairments are considered in determining an individual’s residual functional capacity, regardless of whether the impairments are labeled severe or non-severe. 20 C.F.R. §§ 404.1545(e) and 416.945(e).
In assessing residual functional capacity, the ALJ must give appropriate consideration to all of the claimant’s impairments, and base the assessment on competent medical evidence. Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011) (citations omitted). An ALJ should consider the quality of the claimant’s daily activities and the ability to sustain activities, interests, and relate to others over a period of time. The frequency, appropriateness, and independence of the activities must also be considered. Boettcher, 652 F.3d at 866 (internal quotation marks and citation omitted).
1. Diabetic Retinopathy
Ms. Talley claims that the ALJ erred by failing to find that her diabetic retinopathy was a severe impairment. The ALJ noted that Ms. Talley had been referred for an evaluation of diabetic retinopathy and stated that her diabetes could be expected to cause vision changes.  But he did not find her diabetic retinopathy to be a severe impairment; nor did he discuss Ms. Talley’s vision when assessing her residual functional capacity.
The Commissioner does not dispute that Ms. Talley was diagnosed with diabetic retinopathy, but argues that the diagnosis, by itself, does not indicate a severe impairment. This statement of the law is true, as far as it goes. However, the ALJ still had a duty to consider Ms. Talley’s diabetic retinopathy when considering her residual functional capacity, and it appears that he failed to do so.
In November, 2009, Ms. Talley was referred for an eye examination after complaints that her eyes were hurting. The records from Ms. Talley’s visit to an opthamologist in November, 2008, indicate that she had a history of retinal bleeding and glaucoma. In a narrative report dated November 13, 2009, Gary Russell, M.D., a physician at River Valley Medical Center, wrote that, according to her ophthalmologist, Ms. Talley had diabetic retinopathy with marked decrease in her vision and at least one retinal hemorrhage that was treated with laser therapy.  On November 19, 2009, Ms. Talley was seen at River Valley Christian Clinic (“River Valley”) complaining of vision problems. She was referred to an eye doctor.
At the hearing, Ms. Talley testified that she had glasses, but that they were for distance vision and not for reading.  She stated that she was no longer able to read the newspaper because her vision was impaired.  However, she was able to read a large-print Bible. She also testified that one reason she used a cane was to help her deal with her visual impairment because she had difficulty detecting depth and color change.

In spite of considerable evidence in the record indicating that Ms. Talley’s diabetic retinopathy has more than a minimal effect on her ability to work, it does not appear that the ALJ considered it when assessing her residual functional capacity. The ALJ found that Ms. Talley was capable of working as a production worker which, according to the Dictionary of Occupational Titles, would require her to frequently use near acuity and depth perception, and to occasionally use color vision. Employment and Training Admin., U.S. Dep’t of Labor, Dictionary of Occupational Titles (4th ed. rev. 1991).

 

Further, it does not appear that any consulting or examining source offered an opinion about the extent of visual limitation caused by Ms. Talley’s retinopathy. Remand is necessary for the ALJ to more fully and fairly develop the record regarding the extent of Ms. Talley’s visual impairment, if any.
2. Peripheral Neuropathy
On November 7, 2007, Kenneth Turner, M.D., diagnosed Ms. Talley with diabetic peripheral neuropathy. On September 18, 2008, Ms. Talley complained of numbness and tingling during her visit to River Valley.
At the hearing, Ms. Talley testified that her feet and legs were cold and numb bilaterally. She stated that she had problems with strength and grip, could not open jars, and dropped things.  She had difficulty holding a glass of milk because of problems with her grip.  She also stated that her peripheral neuropathy caused her knees to buckle, leading her to use a cane. (Tr. 30) She had difficulty getting up and down the three steps leading to her house.
In his opinion, the ALJ acknowledged Ms. Talley’s diabetic neuropathy and considered whether there was documentation of neuropathy in two extremities significant enough to meet a Listing.  He also noted that her diabetes could cause “tingling and numbness” in the hands or feet.
When assessing Ms. Talley’s residual functional capacity, however, the ALJ focused his assessment only on the neuropathy in her feet. He noted that she had reported numbness, tingling, and pain in her feet.  The ALJ stressed, however, that the orthopedic specialist had found that she had normal gait, that her neurovascular status was intact, and that she had positive straight leg tests.  The ALJ concluded that Ms. Talley could sit for six hours; stand/walk for two hours; and could occasionally climb, balance, crawl, kneel, stoop, or crouch.
The ALJ did not address the evidence in the record indicating that Ms. Talley’s peripheral neuropathy also affected her hands. He did not limit her residual functional capacity in any way related to her hands and concluded she could perform work as a credit authorizer and interviewer — jobs that require frequent handling. 

The ALJ’s failure to fully account for Ms. Talley’s peripheral neuropathy in assessing residual functional capacity is error. Again, it does not appear that any examining medical professional had ordered a nerve conduction study of Ms. Talley or had offered an opinion as to the extent of the limitation caused by her peripheral neuropathy. On remand, the Commissioner should consider the effect, if any, that Ms. Talley’s peripheral neuropathy in her legs, hands, and feet has on her residual functional capacity.
3. Hip Pain
Ms. Talley alleges that it was error for the ALJ not to conclude that her hip pain was a severe impairment. The ALJ acknowledged Ms. Talley’s complaints of hip pain at various points in his opinion. He noted that Ms. Talley complained of hip pain to Dr. Turner, who recorded in treatment notes that Ms. Talley had a right hip that “pops out at times.”
The ALJ also acknowledged that Ms. Talley was examined by Owen Kelly, M.D., at Arkansas Orthopaedic Institute in November, 2007.  Dr. Kelly took x-rays of Ms. Talley that revealed some degenerative disc disease.  On examination, he noted that she had normal gait, but tenderness of the greater trochanter bursa and around the lumbosacral area. He diagnosed low back pain, degenerative disc disease, and right leg radiculopathy. He ordered an MRI of Ms. Talley’s lumbar spine, but she reported to Dr. Turner that she was unable to have the test because of her financial situation.
On October 2, 2008, Ms. Talley complained of hip pain during a visit to Stanley Teeter, M.D., at River Valley.  She was diagnosed with degenerative arthritis in her hip. Dr. Teeter prescribed Etodolac but, as the ALJ noted, that medication was discontinued due to gastritis.
At her hearing, Ms. Talley testified that Dr. Teeter had told her she had “bone against bone” on her right hip, and that her hip socket was degenerated.  She stated that he had advised her to keep as much weight as possible off of it, so she used a cane.  Additionally, Ms. Talley testified that she was not able to bend down to pick up objects that dropped on the floor.  She relied on her brother or mother to come to her house and do that for her.
The ALJ discounted the effects of Ms. Talley’s hip pain, noting that no surgical treatment was recommended. However, Dr. Kelly, the orthopedic specialist, had ordered an MRI in order to have a complete work-up on Ms. Talley, but she was not able to have the test because of her limited financial resources. She never returned to Dr. Kelly, but instead continued to seek treatment for hip pain from her general practitioners at the free clinic. 

Further, the ALJ noted that none of Ms. Talley’s doctors had restricted her activities. However, Ms. Talley’s testimony contradicts this assertion. She testified that Dr. Teeter had advised her to keep as much weight off of her hip as possible. The ALJ’s opinion does not offer any explanation for discrediting this testimony.
Further, Dr. Russell, one of Ms. Talley’s treating physicians, stated that Ms. Talley was unable to sit or stay in one position for an extended period of time. While the ALJ did not have Dr. Russell’s assessment at the time he wrote his opinion, the Court may consider that opinion, which was available to, and considered by, the Appeals Council. The court’s role is to determine whether the ALJ’s decision is supported by substantial evidence including the evidence submitted after the determination was made.
The ALJ’s conclusion that Ms. Talley could perform sedentary work and could occasionally climb, balance, crawl, kneel, stoop, and couch is not supported by substantial evidence in the record.
4. Mental Impairments
Ms. Talley also claims that the ALJ erred in assessing her mental impairments. The ALJ concluded Ms. Talley had moderate restriction in activities of daily living; in her social functioning; and in concentration, persistence, and pace.  He noted that she was hospitalized in 2001 following a suicide attempt.  The ALJ found that Ms. Talley’s mood disorder was a severe impairment, but he concluded that she maintained the residual functional capacity for unskilled work.
Ms. Talley points out that the ALJ declined to discuss the mental consultative examination performed by Don Ott, Psy.D., on September 17, 2008.  Dr. Ott observed that, during the examination, Ms. Talley’s affect was rigid and flat. He stated that she made very little eye contact, and that her voice was tired and resigned. She seemed distracted and talked excessively during the evaluation.  Dr. Ott concluded that Ms. Talley’s social interaction was “fairly limited.”  Her concentration was impaired, and her capacity to cope with the mental demands of work was deficient. Dr. Ott diagnosed Ms. Talley with major depressive disorder, recurrent, moderate and assigned a GAF score of 50-60.
The Commissioner points out that the ALJ addressed Dr. Ott’s opinion by stating, “the opinions of the claimant’s examining and treating physicians are given substantial weight consistent with 20 C.F.R. 404.1527.” Further, he argues that Dr. Ott’s opinion is not contradictory to the ALJ’s assessment of Ms. Talley’s residual functional capacity, pointing out that Dr. Ott “never opined as to Plaintiff’s actual limitations in concentration or any work-related domain.” 

The ALJ’s handling of Dr. Ott’s opinion was inadequate. As explained in Social Security Ruling 96-6p, administrative law judges and the Appeals Council are not bound by findings made by State agency or other program physicians and psychologists, but they cannot ignore these opinions and must explain the weight given to the opinions in their decisions. SSR 96-6p (1996). Dr. Ott’s opinion that Ms. Talley’s concentration was impaired and that her ability to cope with the mental demands of work was deficient should have at least been addressed by the ALJ in his opinion.
The ALJ’s assessment of Ms. Talley’s treatment records was also deficient. In his opinion, the ALJ based his residual functional capacity assessment on the July, 2008 assessment of Richard H. Sundermann, Jr., M.D. (Tr. 443-44) Dr. Sundermann recounted Ms. Talley’s history of depression and anxiety. He noted that she had been unable to afford Effexor and had switched to a generic, but had been unable to afford even an adequate dose of the generic drug. He diagnosed Ms. Talley with moderate, recurrent major depressive disorder and prescribed Effexor, which he could supply to her through a patient assistance program.
The ALJ states the Effexor resulted in fewer suicidal thoughts and an improved mood. He summarized the remaining treatment notes by stating that Ms. Talley continued to attend therapy sessions and medication management, “with a few more changes in the medications and improvement of her mood.” Based on this analysis of Ms. Talley’s treatment records, the ALJ concluded that she could perform unskilled work.
The ALJ’s assessment that Ms. Talley’s depression and anxiety were controlled with medication and therapy is not supported by substantial evidence in the record. In April, 2008, Ms. Talley complained of increased anxiety and depression to Dr. Turner. He referred her to Counseling Associates noting that, “[s]he is not actually suicidal but needs more intensive care for depression than I can provide alone.”  In May of 2008, Ms. Talley called Dr. Turner’s office seeking samples of Effexor because she could not purchase her medication.  He was unable to provide samples of Effexor and changed her medication to Cymbalta.
On June 4, 2008, Ms. Talley presented to Counseling Associates complaining of anxiety and depression since she was a child. She reported daily symptoms of depression and anxiety, stating that her social anxiety was so severe that she remained isolated and felt like a failure. She was initially diagnosed with major depressive disorder, recurrent, moderate, without psychotic features, and anxiety disorder with agoraphobia. She was assigned a GAF score of 50. (Tr. 331-336)
On July 9, 2008, Dr. Sundermann evaluated Ms. Talley. He noted that she had a difficult time digesting her food and medicine because she had undergone gastric bypass surgery in 2001. He stated that Prozac, which Ms. Talley had previously taken with good result, had stopped working. She reported a failed suicide attempt years earlier, which had resulted in her being psychiatrically hospitalized for seven days.  Dr. Sundermann prescribed Effexor XR and therapy.
On August 26, 2008, Ms. Talley began therapy with Erin Willcutt, LAC. On September 8, 2008, Ms. Talley was evaluated by Sam Hernandez, APN. Progress notes from the visit indicate that Ms. Talley reported that her depression seemed worse and that she wanted to stay in bed most of the time.  She was observed to have a flat affect and admitted to having fleeting suicidal thoughts with a plan at times. Nurse Hernandez increased her Effexor, and Ms. Talley agreed to allow her brother to help her manage her medications. 

During a therapy session on September 12, 2008, Ms. Talley seemed to be doing better.  But on October 1, 2008, her therapist noted that her response to treatment has been “marginal,” and her anxiety level was very high.  On October 6, 2008, Ms. Talley returned to Nurse Hernandez, who noted that she seemed to be doing quite a bit better.
Ms. Talley returned to see Ms. Willcutt on October 14, 2008. Ms. Willcutt noted that Ms. Talley seemed to be doing a little better, but still has difficulty getting motivated to do things to improve her situation.  During visits on November 12, 2008, and December 9, 2008, Ms. Talley reported doing better.  On December 11, 2008, Nurse Hernandez diagnosed major depressive disorder, recurrent, moderate and continued her on Effexor and individual therapy.
On January 15, 2009, Ms. Talley reported feeling a little more depressed, but she returned on February 4, 3009, to report feeling better.
Ms. Willcutt noted that at her session on March 6, 2009, Ms. Talley had a depressed mood. She noted that Ms. Talley was not doing as well as she had been at her last visit and reported feeling very depressed after her mother had yelled at her.
Ms. Talley was examined by Roy Ragsdill, M.D., on April 7, 2009. Ms. Talley complained to Dr. Ragsdill of problems with her mother and social anxiety. He suggested adding dependent personality traits to her diagnosis and noted that Ms. Talley had only a “partial response to Effexor” but that he was “reluctant” to change her medications.  He continued her medications and suggested an increase in therapy to weekly.
Ms. Willcutt reported that on April 21, 2009, Ms. Talley’s response to therapy was “minimal” and her thought patterns were “very negative.” Ms. Willcutt suggested that they increase their sessions.
On May 5, 2009, Ms. Talley was noted to have a very depressed mood, negative thought process, and very tearful behavior. Ms. Talley admitted to thoughts of wanting to die and not wanting to go on, but denied any plan or intent to harm herself. Ms. Willcutt discussed possible acute care with Ms. Talley, but she rejected the idea because she had formerly worked at the acute unit and felt this would make her feel like more of a failure. 

Ms. Willcutt noted that cognitive therapy was minimally successful and noted her intention to meet with her case manager and discuss the case with Ms. Talley’s psychiatrist.  Ms. Willcutt recommended an increased level of care for Ms. Talley with weekly therapy and meetings twice per month with her case manager.
Notes from Ms. Talley’s May 20, 2009 therapy session indicate that she exhibited depressed mood, negative thought process, and no change in behavior of functioning. On June 16, 2009, Dr. Ragsdill examined Ms. Talley. He noted that her mood was somewhat better, but discussed with her the possibility of adding lithium as an augmentation to her treatment. Ms. Talley rejected the idea.
Notes from Ms. Talley’s therapy session with Ms. Willcutt on November 18, 2009, indicate that Ms. Talley’s response to therapy was not positive.  She stated, “Brenda is very depressed and apathetic about her current living situation. She was very negative in session and reports having no energy to do or work on current situation. She reports feeling like `Brenda’ is slipping away.”  Ms. Willcutt noted that “Brenda is isolating and avoiding friends, family, and appointments when possible.” She recommended that Ms. Talley increase the frequency of her therapy sessions and case management appointments.
Ms. Willcutt met with Ms. Talley again on December 9, 2009.  She noted that Ms. Talley’s mood was depressed and overwhelmed; her thoughts were negative; and her behavior was anxious. Ms. Talley reported difficulties living with her mentally ill mother and brother. Ms. Willcutt noted that Ms. Talley’s activity level was “significantly reduced.”
On December 9, 2009, Ms. Talley was also seen by her psychiatrist, Dr. Ragsdill. He noted that Ms. Talley was walking with a cane, was anxious, and did not want to go out much. He assessed that she was having an “incomplete response” to her antidepressant regimen. He increased her Effexor to the maximum dose and added lithium.
In a treatment and prognosis summary dated December 13, 2009, Ms. Willcutt noted that Ms. Talley’s depression and anxiety had increased over the past several months. She pointed out that Ms. Talley’s thought patterns were increasingly negative and her anxiety was more apparent. She stated that she had agreed with her current diagnosis of major depressive disorder, recurrent, moderate to severe and anxiety disorder NOS and stated that, in her opinion, Ms. Talley’s prognosis was guarded, due to the recurrent nature of her mental disorder and severe stressors.
Evidence from treating sources are generally accorded great weight because they are most able to provide a longitudinal picture of a claimant’s impairments. 20 C.F.R. § 416.927. The ALJ had access to Ms. Talley’s treatment records from Counseling Associates through June, 2009, but opted to focus on the first few months of her treatment, when she showed some signs of improvement. The Appeals Council had access to Ms. Talley’s records through December, 2009, but concluded that the information did not provide a basis for changing the ALJ’s decision. The Court disagrees. 

The treating source records, taken as a whole, indicate that Ms. Talley’s depression and anxiety had not improved on medication but, in fact, steadily declined after March of 2009. The ALJ erred by failing to address Dr. Ott’s opinion and by relying on a six-month snapshot of Ms. Talley’s treatment records when assessing her mental residual functional capacity.
IV. Conclusion
After consideration of the record as a whole, the Court concludes that the decision of the Commissioner is not supported by substantial evidence. The Commissioner’s decision is reversed and remanded for action consistent with this opinion. 
IT IS SO ORDERED.
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If Am Employer Will Allow Reasonable Accommodations To Allow A Person To Work, He Is Not Disabled

HIBSHMAN v. ASTRUE

 


 

 

MEMORANDUM OPINION AND ORDER
D BETH DEERE, Magistrate Judge.
Plaintiff Steven L. Hibshman appeals the final decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying his claim for Supplemental Security income (“SSI”) under Title XVI of the Social Security Act (the “Act”). For reasons set out below, the decision of the Commissioner is AFFIRMED.
I. Background:
On April 17, 2008, Mr. Hibshman protectively filed for SSI alleging disability beginning the same date due to depression, anxiety, agoraphobia, asthma, high blood pressure, reflux, back and neck pain, and migraine headaches. Mr. Hibshman’s claims were denied initially and upon reconsideration. At his request, an Administrative Law Judge (“ALJ”) held a hearing on January 27, 2010, at which Mr. Hibshman appeared with his lawyer. At the hearing, the ALJ heard testimony from Mr. Hibshman and a vocational expert (“VE”).
The ALJ issued a decision on August 16, 2010, finding that Mr. Hibshman was not disabled for purposes of the Act. On November 5, 2010, the Appeals Council denied his request for review, making the ALJ’s decision the Commissioner’s final decision.
Mr. Hibshman was thirty-seven years old at the time of the hearing. He had an eighth-grade education and had worked as a carpenter and lumber yard laborer.  At the time of the hearing, he lived with his wife and children.

II. Decision of the Administrative Law Judge:
The ALJ followed the required five-step sequence to determine: (1) whether the claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a severe impairment; (3) if so, whether the impairment (or combination of impairments) met or equaled a listed impairment; (4) if not, whether the impairment (or combination of impairments) prevented the claimant from performing past relevant work; and (5) if so, whether the impairment (or combination of impairments) prevented the claimant from performing any other jobs available in significant numbers in the national economy. 20 C.F.R. § 416.920(a)-(g).
The ALJ found that Mr. Hibshman had not engaged in substantial gainful activity since his alleged onset date. And he found that Mr. Hibshman had the following severe impairments: anterior compression T-11, degenerative joint disease of the hands and right knee, hypertension, asthma, depression, and anxiety. The ALJ found Mr. Hibshman did not have an impairment or combination of impairments, however, that met or equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. § 416.926).
The ALJ determined Mr. Hibshman had the residual functional capacity to perform light work, except that he would have to have a sit/stand option, and was limited to jobs that involved simple tasks, simple job instructions, and only incidental contact with the public. He found Mr. Hibshman could not perform his past relevant work.  Relying on the testimony of the VE, he found, however, that Mr. Hibshman had the residual functional capacity to perform jobs that existed in significant numbers in the national economy.
III. Analysis:
A. Standard of Review
In reviewing the Commissioner’s decision, this Court must determine whether there is substantial evidence in the record as a whole to support the decision.  Substantial evidence is “less than a preponderance, but sufficient for reasonable minds to find it adequate to support the decision.”

In reviewing the record as a whole, the Court must consider both evidence that detracts from the Commissioner’s decision and evidence that supports the decision; but, the decision cannot be reversed, “simply because some evidence may support the opposite conclusion.” 
Mr. Hibshman’s main complaint is that the ALJ did not properly consider his low Global Assessment of Functioning (“GAF”) scores that ranged from 45 to 55. The Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (“DSM-IV”), published by the American Psychiatric Association, states that a GAF score of 41 to 50 generally indicates serious impairment in social, occupational, or school functioning. (DSM-IV 32) The DSM-IV is, however, a classification of mental disorders that was developed for use in clinical, educational, and research settings. Specific diagnostic criteria included in the DSM-IV are meant to serve as guidelines to augment clinical judgment and are not meant to be used in a cookbook fashion. A GAF score does not have a direct correlation to the severity requirements in mental disorders listings. 65 Fed.Reg. 50746, 50764-65 (2000).
Here, the ALJ acknowledged Mr. Hibshman’s GAF scores but explained why they were not controlling. As the ALJ noted, a GAF score of 45 was assigned to Mr. Hibshman in a treatment plan that was electronically co-signed by Terry Brown, D.O., and dated January 3, 2008. During his evaluation, Mr. Hibshman admitted that he had not been participating in individual therapy or case management since November, 2006. Further, progress notes from October of 2007, December of 2007, and March of 2008, indicate that Mr. Hibshman was getting along well with others, including his children. A progress note from August of 2008, notes that Mr. Hibshman had experienced a real change with medication and was getting out in public.
As the ALJ noted, throughout the records from Health Resources of Arkansas, Mr. Hibshman was assigned GAF scores of differing levels, but only two of these scores were assigned by an acceptable medical source as defined in the Social Security Regulations. 20 C.F.R. § 416.913(a); (licensed social worker not deemed an acceptable medical source). Too, his GAF score of 45 assigned by Dr. Brown must be considered together with the score assigned by Nancy A. Bunting, Ph.D. Dr. Bunting assessed Mr. Hibshman at 50-60 on the GAF scale after examining and testing him during a consultative examination on March 19, 2010. The sixteen other GAF scores for Mr. Hibshman, that were not assigned by an acceptable medical source, ranged from 45 to 65.
The ALJ did not err in his assessment of the GAF scores. He considered these scores, along with the other evidence in the record, but did not err by not giving the scores greater weight.  (ALJ may afford greater weight to medical evidence and testimony than to GAF scores when the evidence requires it).
C. Residual Functional Capacity

Mr. Hibshman claims the ALJ’s determination of his residual functional capacity (“RFC”) is not supported by substantial evidence because the ALJ did not properly account for his mental impairments. (#13 at p. 10) The ALJ bears “the primary responsibility for assessing a claimant’s residual functional capacity based on all relevant evidence.” A claimant’s residual functional capacity is a medical question, and at least some medical evidence must support the ALJ’s RFC determination.  The ALJ may reject the opinion of any medical expert that is inconsistent with the medical record as a whole. 
Here, the ALJ found that Mr. Hibshman was capable of performing light work,3 except that he had to have a sit/stand option. Additionally, the ALJ found that, because of Mr. Hibshman’s mental conditions, he was limited to work involving simple tasks, simple job instructions, and only incidental contact with the public.
Mr. Hibshman does not dispute that he was capable of light work with a sit/stand option, but claims the ALJ did not properly consider his mental impairments when assessing his RFC. Specifically, Mr. Hibshman argues that his treatment records from Health Resources of Arkansas, and specifically the GAF scores assigned to him, indicate that he had “very substantial limitations.”
Again, the ALJ appropriately considered and discussed Mr. Hibshman’s GAF scores. The ALJ also considered and discussed, at some length, the treatment records from Health Resources of Arkansas. Progress notes from Health Resources indicate that Mr. Hibshman was getting along well with others, including his children, and that he was getting out more when he was on prescribed medication. On May 7, 2009, Mr. Hibshman reported that he only came to therapy because “they are making me”; and a note from the following week indicates he had reduced his Xanax intake because his anxiety was controlled.
The ALJ also considered reports from two separate consultative psychological examinations of Mr. Hibshman performed by Dr. Bunting. On her first examination of Mr. Hibshman on July 9, 2008, Dr. Bunting diagnosed panic disorder without agoraphobia and major depressive disorder. She stated that a number of symptoms required to meet the criteria for these two diagnoses were “not really there,” because the symptoms “seem to be presently ameliorated by his medications.” She stated that during the examination Mr. Hibshman was able to communicate and interact in a socially adequate manner, but that he had a limited capacity to cope with typical cognitive demands and to sustain concentration. Dr. Bunting also noted that he was “guarded” and “appeared to give only minimal level of effort.” She stated that during the examination, he displayed a “bad attitude” and “a willingness to exaggerate symptoms.”
As the ALJ notes, Dr. Bunting reported that the exaggeration of symptoms, poor effort, and poor cooperation persisted at the second consultative examination.  Dr. Bunting administered the Minnesota Multiphasic Personality Inventory-2. She noted the profile was invalid, however, because Mr. Hibshman was responding to questions in “random fashion” and stopped paying attention, resulting in what she termed a “fake-bad” profile.
She also administered a Computerized Assessment of Response Bias (“CARB”) test which is given when a person is believed to be malingering.  The results from the CARB test showed very poor effort and were consistent with those of examinees who are consciously exaggerating the extent and nature of their symptoms or impairments.  Finally, Dr. Bunting noted that Mr. Hibshman gave “minimal effort on the Wechsler Adult Intelligence Scale-III (“WAIS-III”) examination which resulted in a full scale IQ of 71.

Dr. Bunting concluded that Mr. Hibshman: (1) was able to communicate and interact in a socially adequate manner; (2) was able to communicate in an intelligible and effective manner; (3) had the capacity to cope with the typical mental/cognitive demands of basic work-like tasks (noting his score on the IQ test was “very likely an underestimation of his abilities”); (4) had some ability to attend and sustain concentration on basic tasks; (5) was able to sustain his persistence during the testing session and interview; and (6) had some ability to complete work-like tasks within an acceptable time frame.
Mr. Hibshman argues that the ALJ failed to properly consider the opinions and findings of Joan Shepard, L.P.C., who completed a mental residual functional capacity questionnaire. In her response to the questionnaire, Ms. Shepard concluded that Mr. Hibshman had no useful ability to function in 18 of 25 areas used for evaluating an individual’s mental ability for unskilled work. Mr. Hibshman’s reliance on Ms. Shepard’s opinion is misplaced.
First, Ms. Shepard is a licensed counselor, not a licensed physician or psychologist. Under 20 C.F.R. § 416.913(a), a licensed or certified psychologist qualifies as an “acceptable medical source” who can provide evidence to establish a medically determinable impairment. The ALJ may consider “other sources” such as therapists and counselors to show the severity of an impairment and how it affects the claimant’s ability to work, but not to establish the impairment. See 20 C.F.R. § 416.913(d).
Second, the ALJ may reject any opinion that is inconsistent with the medical record as a whole. Martise v. Astrue, 641 F.3d at 909, 926 (8th Cir. 2011) (treating physician’s opinion properly discounted when inconsistent with treatment notes or with medical evidence as a whole). In this case, Ms. Shepard’s opinion is not consistent with the treatment records from Health Resources of Arkansas or with the opinions of Dr. Bunting.
There is substantial evidence to support the ALJ’s conclusion that Mr. Hibshman had the residual functional capacity for light work with a sit/stand option where the work is limited to jobs that involve simple tasks, simple job instructions, and only incidental contact with the public.
IV. Conclusion:
There is sufficient evidence in the record as a whole to support the Commissioner’s determination that Steven Hibshman was not disabled within the meaning of the Act. Accordingly, his appeal is DENIED, and the Clerk is directed to close the case, this 6th day of April, 2012.


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If You Can Still Do Your Past Relevant Work, You Are Not Disabled

GAY v. ASTRUE

United States District Court, M.D. Alabama, Northern Division.

 


 

 

MEMORANDUM OPINION AND ORDER
TERRY F. MOORER, Magistrate Judge.
Joseph Allen Gay, (“Plaintiff” or “Gay”) applied for supplemental security income (SSI) under Title XVI of the Social Security Act (“the Act”),  in October 2009. . Gay alleged that he became disabled on February 4, 2007 after a motor vehicle accident. Gay timely filed for and received a hearing before an administrative law judge (“ALJ“) who rendered an unfavorable decision on January 25, 2011.  Gay in turn petitioned for review to the Appeals Council who rejected review of Gay’s case on March 25, 1011.  As a result, the ALJ’s decision became the final decision of the Commissioner of Social Security (“Commissioner”). The parties have consented to entry of final judgment by the United States Magistrate Judge.
The Court’s review of the Commissioner’s decision is a limited one. The Court’s sole function is to determine whether the ALJ’s opinion is supported by substantial evidence and whether the proper legal standards were applied. 
“The Social Security Act mandates that `findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.'” Thus, this Court must find the Commissioner’s decision conclusive if it is supported by substantial evidence. Substantial evidence is more than a scintilla — i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. 
If the Commissioner’s decision is supported by substantial evidence, the district court will affirm, even if the court would have reached a contrary result as finder of fact, and even if the evidence preponderates against the Commissioner’s findings. The Court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. The Court “may not decide facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner],” but rather it “must defer to the Commissioner’s decision if it is supported by substantial evidence.”

 

The Court will also reverse a Commissioner’s decision on plenary review if the decision applies incorrect law, or if the decision fails to provide the district court with sufficient reasoning to determine that the Commissioner properly applied the law. There is no presumption that the Commissioner’s conclusions of law are valid. 
II. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act’s general disability insurance benefits program (“DIB“) provides income to individuals who are forced into involuntary, premature retirement, provided they are both insured and disabled, regardless of indigence.  The Social Security Act’s Supplemental Security Income (“SSI”) is a separate and distinct program. SSI is a general public assistance measure providing an additional resource to the aged, blind, and disabled to assure that their income does not fall below the poverty line. Eligibility for SSI is based upon proof of indigence and disability. However, despite the fact they are separate programs, the law and regulations governing a claim for DIB and a claim for SSI are identical; therefore, claims for DIB and SSI are treated identically for the purpose of determining whether a claimant is disabled. Applicants under DIB and SSI must provide “disability” within the meaning of the Social Security Act which defines disability in virtually identical language for both programs. A person is entitled to disability benefits when the person is unable 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.
A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
The Commissioner of Social Security employs a five-step, sequential evaluation process to determine whether a claimant is entitled to benefits.

STEP (1) Is the person presently unemployed?

STEP (2) Is the person’s impairment(s) severe?
STEP (3) Does the person’s impairment(s) meet or equal one of the specific impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
STEP (4) Is the person unable to perform his or her former occupation?
STEP (5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the questions leads either to the next question, or, on steps three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of “not disabled.”

The burden of proof rests on a claimant through Step 4. Claimants establish a prima facie case of qualifying disability once they meet the burden of proof from Step 1 through Step 4. At Step 5, the burden shifts to the Commissioner, who must then show there are a significant number of jobs in the national economy the claimant can perform.

To perform the fourth and fifth steps, the ALJ must determine the claimant’s Residual Functional Capacity (RFC). RFC is what the claimant is still able to do despite his impairments and is based on all relevant medical and other evidence. Id. It also can contain both exertional and nonexertional limitations. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and work experience to determine if there are jobs available in the national economy the claimant can perform.  To do this, the ALJ can either use the Medical Vocational Guidelines (“grids”) or hear testimony from a vocational expert (VE). 
The grids allow the ALJ to consider factors such as age, confinement to sedentary or light work, inability to speak English, educational deficiencies, and lack of job experience. Each factor can independently limit the number of jobs realistically available to an individual. Id. at 1240. Combinations of these factors yield a statutorily-required finding of “Disabled” or “Not Disabled.” 
III. ADMINISTRATIVE FINDINGS AND CONCLUSIONS
Gay testified that he was 53 years old and completed ninth grade.  Gay has not worked since 1998, nine years prior to his alleged onset date of February 4, 2007. In the past 15 years, Gay has worked as a forklift driver and furnace loader. Gay testified that he is now unable to work because of headaches, and balance and memory problems.  Gay claims that he has headaches about three to four times a week and he rates the headache pain as a ten on a ten point scale. Id. He testified that he has to lie down and rest for about four hours to relieve the pain.  Furthermore, Gay testified that his prescription Lortab does not eliminate his lower back pain.  He also testified that he has muscle spasms which start in his right arm and extend into his neck. Since August 2009, Gay has performed certain household chores, but he testified that the activities take longer to complete because of his dizziness.  Specifically he testified when he cuts wood, his hands stiffen and he has to sit down
The ALJ found that Gay had not engaged in substantial gainful activity since August, 24, 2009, the application date. He found that Gay’s status post-motor-vehicle accident in February 2007, his headaches, low back pain and hypertension were severe, but that he did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (2011).  The ALJ found that Gay retained the residual functional capacity (“RFC”) to perform the full range of medium work which involves lifting no more than 50 pounds at a time with frequent lifting or carrying up to 25 pounds. (Medium, unskilled.)  Alternatively, the ALJ found that Gay could perform other work that exists in significant numbers in the national economy by applying Medical-Vocational Rule 203.19.  Thus, the ALJ concludes that Gay was not disabled as defined by the Act.
IV. MEDICAL HISTORY

Gay’s medical records are spotty. The first submitted records show Gay was injured in a motor vehicle accident on February 6, 2007, was hospitalized and discharged on February 10, 2007.  The accident occurred when Gay ran a red light while intoxicated and struck another car.  Gay was admitted to the hospital on a ventilator and placed in the intensive care unit. Gay sustained a pulmonary contusion and subarachnoid hemorrhage from the wreck, but was neurologically intact, awake, alert and able to move all extremities. He made good progress over the next few days and was discharged on February 10, 2007.  The next records show Gay received medication management for hypertension while incarcerated in the Coffee County Jail in March and April of 2010.

In June, 2010, Gay saw Dr. John M. Allgood, a family practitioner, for the first time and requested medication for hypertension and pain.  He also complained of difficulty swallowing, and vision problems, lower back pain, dizziness, fainting and numbness in his feet. Id. Plaintiff had a normal examination. Specifically, Dr. Allgood found Gay had a normal general appearance and his cardiovascular, musculoskeletal and neurological systems were also normal. Dr. Allgood ordered laboratory tests , and found Gay had an H. pylori infection. He prescribed antibiotics and blood pressure medications for Gay.
Gay saw Dr. Allgood again on July 29, 2010 with complaints of shortness of breath, back and shoulder pain, spasms in his right upper arm and choking. Dr. Allgood found Gay’s blood pressure was elevated and he assessed esophageal reflux and intercostal myositis.  He prescribed antibiotics and medication for esophageal reflux.  On September 8, 2010 Gay complained of a bad cold and requested a muscle relaxer and pain medication.  Dr. Allgood diagnosed acute bronchitis, esophageal reflux and intervertebral disc degeneration and prescribed medications.  On November 10, 2010, Gay complained that he continued to have “some trouble swallowing” and needed refills of his pain medications.  Dr. Allgood diagnosed dysphagia, joint pain, and hypertension.  He prescribed pain medication and a muscle relaxant, as well as medication for esophageal reflux.
In connection with his application for benefits, Gay underwent two consultative examinations. Gay was seen by Dr. James O. Colley, a general surgeon, on November 23, 2009 for a physical and neurological examination  In December, 2009, Eugene E. Fleece Ph.D, a State agency physician, conducted a mental evaluation of Gay. Gay complained to Dr. Colley about constant headaches, difficulty swallowing, low back pain, sinusitis, possible obstructive sleep apnea, poor balance and hypertension. He said over-the-counter medications did not help his headaches and that his memory is failing.  Gay said that he could walk about a half a mile, sit without any difficulty, stand for about an hour before having balance problems, care for his own personal needs, sweep for 20-30 minutes, make the bed, do laundry and dishes, cook, and shop, but did not do yard work or drive. He stated that since his accident, he has reduced his drinking from about a case and a half of beer to a six-pack of beer per week.
Dr. Colley reported on physical examination that Gay spoke clearly was well-built, well-nourished, fully oriented and in no acute distress. Gay had normal gait, station and coordination and was able to squat and stand without assistance. He had full range of spinal and joint motion except for mild pain on full passive range of right shoulder motion. Gay had no trouble getting on and off the exam table and moving from a seated position to a standing position. (Tr. 222, 224-225). Gay also had full strength and normal sensation and reflexes. (Tr. 225). Dr. Colley noted a normal examination but diagnosed traumatic headaches, sinusitis, a history of dysphagia and alcohol abuse and myofacial upper thoracic spine pain. (Tr. 226).
Dr. Fleece stated in his “Mental Summary” of Gay that “[w]e don’t have any reason to think there is anything substantial to evaluate in terms of down memory, so would not suggest a CE.” In making this determination, Dr. Fleece asked his assistant, Gail F. Johnson, to contact Gay and ask him to give examples of his memory impairment. Gay gave the example of having to use a grocery list, and failing to remember the days of the week. Dr. Fleece dismissed the first as “not impressive” and the second as “very common”.  Furthermore, Dr. Fleece noted that Gay “rambled a good deal” when asked to give examples of memory impairments “as if he was trying to produce something in support of his allegation.”
Dr. Fleece also discounted Gay’s 2007 automobile accident as a cause of any “cognitive damage” because there were no records of such impairment over the last two years. Dr. Fleece noted Gay’s “vague” complaints of memory, understanding and dealing with others, but concluded he “does not sound withdrawn” because he cooks out with friends, watches games, and has a fianceé. Moreover, Dr. Fleece was unimpressed by Gay’s claim of confusion with changes, noting “he handles money well in all areas.”
V. ISSUES

Gay raises five issues for judicial review:
(1) Whether the ALJ failed to fulfill his duty to develop the record by not providing an RFC supported by a physician’s opinion? 
(2) Whether the ALJ failed to fulfill his duty to develop the record by not following the Psychiatric Review Technique Form. (PRTF)? 
(3) Whether the ALJ failed to address all the limitations of the claimant’s severe impairments in the RFC assessment? 
(4) Whether the ALJ considered past relevant work that was not substantial, gainful activity in finding that Gay is able to perform his past work as a forklift driver and furnace loader? 
(5) Whether the ALJ erred in relying on the testimony of Patrick Sweeney, the VE? 
VI. DISCUSSION

Substantial Evidence Supports the ALJ’s Finding that Plaintiff Could Perform a Full Range of Medium Work.6
The ALJ concluded that Gay had the residual functional capacity (“RFC”) to perform a full range of medium work.  The Commissioner’s decision is due to be affirmed “if it is supported by substantial evidence and the correct legal standards were applied.”  “Substantial evidence is less than a preponderance, but rather such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” 
In making this finding, the ALJ stated that he carefully considered the record as a whole. Indeed, the ALJ thoroughly summarized Gay’s complaints of headaches, dizziness, low back pain and high blood pressure and their severity as presented by Gay at the hearing before the ALJ. However, the ALJ noted a lack of any medical treatment for Gay from February, 2007 until he received treatment for hypertension during his incarceration at the Coffee County Jail in March and April 2010. The ALJ also relied on Dr. Colley’s consultative exam findings made in November, 2009, which detailed no objective findings which would corroborate Plaintiff’s complaints of pain, and Dr. Allgood’s treatment notes, beginning in June, 2010, which also showed few objective findings and in which he recommended only the most conservative treatment possible.  Thus, the court concludes that the ALJ’s determination is one that a reasonable person would accept, and therefore, substantial evidence exists to support the ALJ’s conclusion as to Gay’s RFC. 
Gay further argues that “the correct legal standards were [not] applied”,  since the RFC finding was not directly supported by a treating or examining physician’s opinion as required by Coleman v. Barnhart, 264 F.Supp. 1007. However, this court has previously addressed this very argument in, and distinguished Coleman on the basis of its facts and because the Coleman court gave no citation to any source of law requiring a physician’s assessment for the purposes of making an RFC determination. 
This court further explained that it was persuaded by the reasoning of Judge Foy Guin in Langley v. Astrue. Indeed, Langley disagreed with the Coleman reasoning finding that it “attempt[s] to place the burden of proving the claimant’s RFC on the Commissioner at step five” and this shifting of the burden is “inconsistent with the Commissioner’s regulations, Supreme Court precedent and unpublished decisions in this Circuit.”  Accordingly the Court concludes that Gay’s argument fails and the ALJ did not err in finding Plaintiff’s RFC without the benefit of a physician’s assessment in the record.
The ALJ Reasonably Evaluated Plaintiff’s Alleged Mental Problems.
Gay argues that the Commissioner’s decision should be reversed because the ALJ failed to fulfill his duty to develop the record by not completing a Psychiatric Review Technique Form (“PRTF”) or at least using its mode of analysis. The Commissioner argues that even if the ALJ should have included a PRTF, either by appending the document or incorporating the analysis, that the error was harmless and should not be a cause for reversal of the ALJ’s decision. See Diorio v. Heckler, 721 F.2d 726 (11th Cir. 1983) (holding error harmless where appropriate facts are applied to reach a conclusion and are supported by the record.)

The ALJ, discounted Gay’s allegations of mental problems stating that although he
“alleged some complaints in his activities of daily living; [Gay] however, testified that he is able to cook out with friends, watch sports games and he reported that he has a fiancee.” [sic]
Moreover, the record demonstrates that Gay could read and write, perform basic math, understand and respond to questions at the hearing before the ALJ, provide for his own personal care, prepare meals, do housework and some yard work and walk where he needed to go.  Additionally the record demonstrates that Gay was able to provide detailed and comprehensive information about his past medical history to Dr. Colley and Dr. Allgood.  Further, during the consultative examination with Dr. Colley, Gay was consistent, gave good effort, had clear speech, and was fully alert and oriented.  It is significant that Gay did not complain of any cognitive difficulties to his treating physician, Dr. Allgood and the record contains no medical source observations of any sort of cognitive or mental problems.
Additionally, Eugene E. Fleece Ph.D, a State agency physician, stated in his “Mental Summary” of Gay that “[w]e don’t have any reason to think there is anything substantial to evaluate in terms of down memory, so would not suggest a CE.” Dr. Fleece also discounted Gay’s 2007 automobile accident as a cause of any “cognitive damage” because there were no records of such impairment over the last two years. Dr. Fleece noted Gay’s “vague” complaints of memory, understanding and dealing with others, but concluded he “does not sound withdrawn” because he cooks out with friends, watches games, and has a fianceé. Moreover, Dr. Fleece was unimpressed by Gay’s claim of confusion with changes, noting “he handles money well in all areas.” Accordingly, the court concludes because substantial evidence exists to support the ALJ’s conclusion that Gay’s allegations of mental problems were not supported by the record, the ALJ’s failure to include a PRTF, was harmless error and is not a ground for reversal of the ALJ’s decision. 
The ALJ did not commit reversible error by considering past relevant work that was not substantial, gainful activity.
Gay’s earnings record demonstrates that he did not earn at least an average of $500.00 per month from 1991 to 1998. According to regulations, “past relevant work” is described as work Plaintiff performed within the past fifteen years that was substantial, gainful activity and lasted long enough for the claimant to learn to do it. Generally, monthly earnings do not qualify as substantial gainful activity when Plaintiff earned less than or equal to $500.00 per month between January 1990 and June 1999. 
The Commissioner admits that the ALJ erred in concluding that Gay’s work within the past 15 years was “past relevant work” as defined under the Act. The court concludes, however, that this error was harmless because the ALJ made an alternative finding at step five. Specifically, the ALJ found that on the basis of Plaintiff’s residual functional capacity for a full range of medium work, Medical-Vocational Rule 203.19 allowed for the determination that Plaintiff was not disabled.  The burden of showing that an error is harmful normally falls upon the party attacking the agency’s determination. When an incorrect application of the regulations results in harmless error because the correct application would not alter the ALJ’s ultimate conclusion, there is no basis for reversal. Thus, the court concludes the ALJ did not commit reversible error by considering past relevant work that was not substantial, gainful activity.

The ALJ did not commit reversible error by relying on the testimony of the Vocational Expert.
Gay argues that the ALJ erred in relying on the testimony of Mr. Sweeney, the VE, because it does not support the ALJ’s decision. Specifically, Gay argues that the ALJ quoted the VE as testifying that “claimant was able to return to all of this past relevant work within his [RFC]. Gay, however, also points out that the VE noted he was unsure that Gay’s “past relevant work” qualified as “substantial gainful employment.” For the reasons stated supra the court concludes that any alleged error based on analysis involving Gay’s “past relevant work” is harmless because of the ALJ’s alterative finding that Plaintiff’s residual functional capacity for a full range of medium work allowed for the determination that Plaintiff was not disabled pursuant to Medical-Vocational Rule 203.19. 
Next, Gay points to the following hypothetical as further evidence that the ALJ erred in relying on the testimony of the VE.
THE COURT: Consider a hypothetical individual with the same age, education, and work experience as the claimant who has the physical capabilities and limitations as testified to by the claimant. Can such a hypothetical individual do any competitive work?
SWEENEY: Well, based on his testimony, the thing that would come to my attention most is the pain, the reported pain level of 10, which at that level, taking that at face value, that would preclude employment, but nothing else that I heard really.
  The court recognizes that the VE accepted Gay’s “reported pain level of 10 . . . at face value” in concluding that an individual who experiences such pain would be unable to work.  However, the ALJ made no reference to this statement in his opinion; nor did anyone further question the VE as to whether the entire record supported Gay’s statements of disabling pain. Thus, the hypothetical is limited to the assumption made by the VE based on the “face value” of Gay’s complaints of pain and does not include any assessment of Gay’s credibility.
If proof of disability is based upon subjective evidence and a credibility determination is critical to the decision, “the ALJ must either explicitly discredit such testimony or the implication must be so clear as to amount to a specific credibility finding.”  The reasons given for discrediting pain testimony must be based on substantial evidence. Thus, the court now turns its attention to the ALJ’s conclusion with respect to Gay’s allegations of pain and the reasons for that conclusion.

The ALJ concluded “[a]fter careful consideration of the evidence” that Gay’s
“medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.”
In support of this conclusion, the ALJ pointed to Gay’s own testimony and to various medical facts and opinions in the record. With respect to the headaches, the ALJ recognized that Gay reported some limitations on his daily routine, but noted that Gay is able to cook out with friends, watch sports, and is engaged. Furthermore, the ALJ assigned “significant weight” to the assessment of Dr. Fleece, consultative expert, who opined that Gay “was not cognitively impaired.”  Additionally, the ALJ assigned “great weight” to the opinions and findings of consultative examiner, Dr. Colley, who reported Gay’s “examination was essentially unremarkable.” Dr. Colley further noted Gay “had full range of motion of all extremities with no deformities . . . normal gait, normal station and normal coordination.” Finally, the ALJ recognized that Gay “has not required hospitalizations or emergency room visits for any of his impairments”; and “[i]n fact, there is little medical evidence to support his allegations.” Accordingly, the court finds that the ALJ “explicitly” discredited Gay’s allegations of pain, and the reasons given by the ALJ are supported by “substantial evidence”. Thus, the court concludes that in the context of this case the ALJ did not err in the limited use of the VE’s testimony.
VII. CONCLUSION
Pursuant to the findings and conclusions detailed in this Memorandum Opinion, the Court concludes that the ALJ’s non-disability determination is supported by substantial evidence and proper application of the law. It is, therefore, ORDERED that the decision of the Commissioner is AFFIRMED. A separate judgment is entered herewith.
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Social Security Judges Operate With Virtually No accountability

A Congressional Report from the House Ways and Means Committee  Confirms Social Security Judges Operate with Virtually No Oversight or Accountability.

Washington, DC – The Office of Inspector General (OIG) issued the second of a two-part report identifying Administrative Law Judges (ALJ) who are considered outliers because of the number of their disability decisions rendered either favorable or unfavorable.  The report comes in response to a June 16, 2011 bipartisan request from Members of the Ways and Means Social Security Subcommittee asking the Social Security Administration’s (SSA’s) Inspector General to review ALJ workloads, adherence to Agency policies and procedures, and quality reviews.  The Members made that request in the wake of a Wall Street Journal article exposing the practices of a West Virginia ALJ who granted awards in 1,280 of the 1,284 disability cases he handled.

Social Security Subcommittee Chairman Sam Johnson (R-TX) said, “ALJs are supposed to be making their decisions on behalf of the Commissioner of Social Security, but this report confirms that ALJs operate with virtually no oversight and no accountability.

“On review, Social Security disagreed with 1 out of 7 ALJ awards but couldn’t reverse those decisions.  What kind of a process allows a bad decision to stand because the decision-maker can’t be challenged? That’s just not right.  Given that the Social Security Disability Insurance program will become insolvent in just a few short years, it is more important than ever that we protect taxpayers and ensure that the program pays benefits only to those who are truly disabled.”

http://www.disabilityjudges.com/state/california/downey

http://www.disabilityjudges.com/

Background:

Background:

The key findings of the report, “Congressional Response: The Social Security Administration’s Review of Administrative Law Judges’ Decisions” are summarized below:

The Administrative Procedures Act (APA) prevents an agency from improperly influencing an ALJ’s decision and protects ALJ decisional independence.  However, ALJs must follow agency regulation, policy, and procedure in making decisions.  Under the law, the agency may not review the decisions of a specific ALJ before their decisions are processed (such reviews are referred to as pre-effectuation reviews).

Reviews after a decision is processed, or post-effectuation reviews, along with special studies may target the decision of a specific ALJ based on anomalies in productivity or allowance rates.   Based on these reviews, the SSA can issue directives to an ALJ for policy compliance; take disciplinary action; or identify training needs to bring ALJs more closely into alignment with Agency policies and procedures.

Recently, the SSA conducted three types of reviews of ALJs’ decisions. Two of these involve a selected sample of cases to determine if regulations, policies, and procedures have been followed and also to identify training needs.  The third was a series of special post-effectuation studies based on anomalies of decisions by seven ALJs that came to the SSA’s attention.  Out of these special studies performed, one ALJ was identified as not following polices and procedures, was corrected, and became compliant.

The OIG concluded that the SSA has authority to review ALJ decisions but faces legal restrictions in conducting those reviews. Changes to current law would be needed to allow the SSA to review and correct decisions of specific ALJs based on unusually high or low allowance rates.

http://waysandmeans.house.gov/News/DocumentSingle.aspx?DocumentID=288715

Social Security Judges are under fire from Congress which recently discovered how much they are paying out in benefits. In a recent series of articles in the Wall Street Journal and other media, judges are being focused on for approving every disability case that comes before them. http://online.wsj.com/article/SB10001424052748704681904576319163605918524.html; http://www.sltrib.com/sltrib/news/51934862-78/disability-security-social-judges.html.csp; http://www.alternet.org/newsandviews/article/592475/wall_street_journal_tries_to_smear_west_virginia_judge_over_social_security_rulings?page=entire; http://www.huntingtonnews.net/4769; ).” target=”_blank”>(http://online.wsj.com/article/SB10001424052702303654804576347790598676096.html; http://online.wsj.com/article/SB10001424052748704681904576319163605918524.html; http://www.sltrib.com/sltrib/news/51934862-78/disability-security-social-judges.html.csp; http://www.alternet.org/newsandviews/article/592475/wall_street_journal_tries_to_smear_west_virginia_judge_over_social_security_rulings?page=entire; http://www.huntingtonnews.net/4769; ). Some in Congress are wondering why we need to pay a judge $167,000.00 a year to rubber-stamp every case that comes before him. A lawyer at the GS-9 level making $40,000.00 a year or less could do the same and save millions of dollars a year. The Law of Averages says that even a trained chimpanzee would be right about half the time, and he would work for peanuts.

Americans seeking Social Security disability benefits will often appeal to one of 1,500 administrative law judges (ALJ) who help administer the program. In the first half of 2011, 27 ALJs awarded social security benefits 95% of the time because of pressure from Commissioner M. Astrue. Nationwide over 100 ALJs are approving 9 out of every 10 cases that come before them. The cases they fail to approve are likely to be approved by the Appeals Council, which works for the Commissioner. Senate and House Committees are investigating the issue. Approving all cases without even reviewing the file is called “paying down the backlog”. Judges are under pressure to move cases quickly in order to clear a backlog of 730,000 pending cases. The pressure comes directly from the Commissioner of Social Security. This is one of the things that I discuss in detail in the book “socialNsecurity”, available at

http://www.amazon.com/SocialNsecurity-ebook/dp/B006VOQIKK

I put it in proper perspective. Having spent about 20 years observing the competing forces that produce a judge who reverses 100% of his cases, while another reverses less than 10%, I have a better handle on this issue than a reporter who writes a sensational article. Much of my insight and explanation of the competing forces is spelled out in my book “socialNsecurity, Confessions of a Social Security Judge”. Anyone looking for more historical and recent statistics on this subject along with an explanation of how the system works can find easy readable information in my book.

Categories: Social Security Judges | Tags: , , , , , , , , , | Leave a comment

A Low IQ Score May Qualify You For Social Security Benefits.

SLATER v. ASTRUE

March 23, 2012.

Demon Victorell Slater, Plaintiff, represented by Quinn Eric Brock, Brock & Stout.
Michael J. Astrue, Commissioner of Social Security, Defendant, represented by Dorrelyn K Dietrich, Social Security Admin, Office of General Counsel Region VIII, John Jay Lee, Social Security Administration, & Robert Randolph Neeley, U.S. Attorney’s Office.

MEMORANDUM OPINION AND ORDER
TERRY F. MOORER, Magistrate Judge.
Demon V. Slater (“Plaintiff” or “Slater”) originally applied for supplemental security income under Title XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 1381 et seq., on August 23, 2007. After being denied, Slater timely filed for and received a hearing before an administrative law judge (“ALJ“) who rendered an unfavorable decision on February 18, 2010. Slater subsequently petitioned for review to the Appeals Council who rejected review of Slater’s case on March 17, 2011.  As a result, the ALJ’s decision became the final decision of the Commissioner of Social Security (“Commissioner”). Id. Judicial review proceeds pursuant to 42 U.S.C. § 405(g), and 28 U.S.C. § 636(c). After a thorough review of the record in this case and the briefs of the parties, the Court concludes that the decision of the Commissioner should be REVERSED and this case REMANDED to the Commissioner for further proceedings.
I. NATURE OF THE CASE
Slater seeks judicial review of the Commissioner’s decision denying his application for disability insurance benefits. United States District Courts may conduct limited review of such decisions to determine whether they comply with applicable law and are supported by substantial evidence. 42 U.S.C. § 405. The court may affirm, reverse and remand with instructions, or reverse and render a judgment. Id.
The Court’s review of the Commissioner’s decision is a limited one. The Court’s sole function is to determine whether the ALJ’s opinion is supported by substantial evidence and whether the proper legal standards were applied. 
“The Social Security Act mandates that `findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.'” Thus, this Court must find the Commissioner’s decision conclusive if it is supported by substantial evidence. Substantial evidence is more than a scintilla — i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion.
If the Commissioner’s decision is supported by substantial evidence, the district court will affirm, even if the court would have reached a contrary result as finder of fact, and even if the evidence preponderates against the Commissioner’s findings. The Court “may not decide facts anew, re-weigh the evidence, or substitute [its] judgment for that of the [Commissioner],” but rather it “must defer to the Commissioner’s decision if it is supported by substantial evidence.” 
The Court will also reverse a Commissioner’s decision on plenary review if the decision applies incorrect law, or if the decision fails to provide the district court with sufficient reasoning to determine that the Commissioner properly applied the law.
III. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act’s general disability insurance benefits program (“DIB“) provides income to individuals who are forced into involuntary, premature retirement, provided they are both insured and disabled, regardless of indigence. See 42 U.S.C. § 423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate and distinct program. SSI is a general public assistance measure providing an additional resource to the aged, blind, and disabled to assure that their income does not fall below the poverty line. Eligibility for SSI is based upon proof of indigence and disability.  However, despite the fact they are separate programs, the law and regulations governing a claim for DIB and a claim for SSI are identical; therefore, claims for DIB and SSI are treated identically for the purpose of determining whether a claimant is disabled.  Applicants under DIB and SSI must provide “disability” within the meaning of the Social Security Act which defines disability in virtually identical language for both programs.  A person is entitled to disability benefits when the person is unable 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.
A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
The Commissioner of Social Security employs a five-step, sequential evaluation process to determine whether a claimant is entitled to benefits. 
(1) Is the person presently unemployed?
(2) Is the person’s impairment(s) severe?
(3) Does the person’s impairment(s) meet or equal one of the specific impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?3
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the questions leads either to the next question, or, on steps three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of “not disabled.”
The burden of proof rests on a claimant through Step 4.  Claimants establish a prima facie case of qualifying disability once they meet the burden of proof from Step 1 through Step 4. At Step 5, the burden shifts to the Commissioner, who must then show there are a significant number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s Residual Functional Capacity (“RFC”). Id. at 1238-39. RFC is what the claimant is still able to do despite his impairments and is based on all relevant medical and other evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and work experience to determine if there are jobs available in the national economy the claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical Vocational Guidelines (“grids”) or hear testimony from a vocational expert (VE). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary or light work, inability to speak English, educational deficiencies, and lack of job experience. Each factor can independently limit the number of jobs realistically available to an individual. Id. at 1240. Combinations of these factors yield a statutorily-required finding of “Disabled” or “Not Disabled.” Id.
IV. ADMINISTRATIVE FINDINGS AND CONCLUSIONS
Slater, age 36 at the time of the hearing, completed the twelfth grade and received a certificate of completion. Slater had special education classes in high school and has limited reading and writing abilities. Slater performed past relevant work as an industrial cleaner (unskilled, medium). Slater has not engaged in substantial gainful activity since his alleged disability onset date of August 23, 2007. Slater has not “ever really worked,” except for a couple positions which spans from a few days to a few weeks. Slater’s mother supports him from her fixed income. Slater claims he is unable to work because he suffers from major depression, anxiety, diabetes, depression, and an IQ score that falls within the range of mental retardation.  Slater received disability benefits in the past until the benefits were terminated upon his incarceration.
Slater’s alleged disabilities stem from multiple sources.A doctor diagnosed Slater as suffering from diabetes in 1997. He received regular treatment to control his diabetes, while he received disability benefits and also while incarcerated, but upon release Slater has been unable to afford his medications except when he was able to attain his medications free of charge. Id. Slater alleges that his diabetes has caused him to be admitted to the hospital and the doctors have had to increase his insulin dosage. Slater alleges that he has diabetic neuropathy which causes pain and numbness in his lower legs, feet, and sometimes in his left hand. Id. Slater also alleges that he suffers from hypertension (high blood pressure). Id. Slater is also unable to afford the medications to control his neuropathy and hypertension.
Since Slater’s release from incarceration, he alleges that he suffers from anxiety and major depression. Slater alleges that his anxiety and depression cause him to randomly begin crying, to feel shortness of breath and pain in his chest, and difficulty sleeping. Slater claims that when on his medication these symptoms subside and he is able to sleep well, but at the moment he is unable to afford his medications. Slater also claims that he has difficulty getting along with other people and mostly keeps to himself. Slater alleges that he suffers from mental retardation as defined in the listings of impairments section 12.05. IQ tests reveal Slater has a score of 64 in verbal intelligence IQ, 62 in performance IQ, and a full scale IQ of 60.  Slater was in special education classes in high school and alleges that he cannot read or spell very well.  Slater also claims that while watching television he is unable to concentrate or follow the storyline.
Slater received treatment from various medical practitioners and the ALJ considered the medical records from these practitioners.  The records of Charles A. Wood, M.D. from September and October of 2002 show that Slater was monitored for hypertension, diabetes, and peripheral neuropathy.  Slater had elevated glucose and hemoglobin A1C levels. Id. Also, Dr. Woods found Slater suffers from depression post a suicide attempt. 
In November of 2007, Mark B. Ellis, D.O. performed a consultative physical evaluation. Id. Slater reported to Dr. Ellis that he sufferes from depression, poor reading skills, diabetes, neuropathy with bilateral leg burning and numbness, decreased sensation to light touch in the feet, and leg weakness.  Dr. Ellis found decreased sensation to light touch from Slater’s knees down “becoming more prominent” at the feet, as well as decreased sensation on the bottom and back of Slater’s feet. Dr. Ellis’ diagnostic impression was “poorly controlled diabetes with diabetic neuropathy; and hypertension, high cholesterol, and depression all by history.” Dr. Ellis recommended optimal diabetic care; however, a month later Slater was admitted to Dale Medical Center for uncontrolled diabetes mellitus with a glucose level of 700, blurred vision, nausea, vomiting, hypertension, and neuropathy. 
Also in November of 2007, Randall Jordan, Psy.D saw Slater for a consultative mental evaluation. Slater reported depression with chronic sadness, sleep disturbances, and being in special education classes while in school. Id. Dr. Jordan noted that Slater exhibited restricted affect, compromised memory, and below average fund of information. Dr. Jordan administered a Wechsler Adult Intelligence Scale Third Edition (“Wechsler”) which tested Slater on verbal, performance, and full scale IQ. Slater earned scores of 64, 62, and 60, respectively. Dr. Jordan noted that these scores are indicative of intellect in the range of mental retardation. Id. However, Dr. Jordan also noted a diagnostic impression of malingering.
In June of 2009, Slater returned to Dale Medical Center with complaints of chest pain. In July of 2009, Slater underwent a stress test which revealed “resting baseline hypertensive heart disease and a marked accelerated hypertensive response to chemical stress.”  After being released from Dale Medical Center, Connie Chandler, M.D. followed Slater for chest pain, diabetes, and hyperlipidemia.  Slater received numerous medications to control his symptoms. Id. The ALJ noted that no noticeable physical symptoms or complications associated with hyperlipidemia were evidenced, and because of such the ALJ found that it has no effect on Slater’s ability to work.  In August of 2009, Dr. Fernando Lopez at Spectra Care saw Slater for his “depressive disorder” and “psychotic features.”  Slater claimed he had “sleep disturbances with intermittent nightmares, visual hallucinations, panic attacks, nervousness, and paranoia.” Id. Dr. Lopez proscribed psychotropic medications to Slater to manage his depressive and psychotic symptoms. Id.
V. ISSUES
Slater raises two issues for judicial review:
(1) Whether the ALJ failed to consider if Slater’s medically determinable impairments met or equaled listing 12.05(C); and
(2) Whether the ALJ’s Residual Functional Capacity finding failed to include the required “function-by-function” assessment. See Doc. 12 at 3.
VI. DISCUSSION AND ANALYSIS
The plaintiff raises several issues and arguments related to this Court’s ultimate inquiry of whether the Commissioner’s disability decision is supported by the proper legal standards and substantial evidence.  “[n]o presumption of validity attaches to the Secretary’s determination of the proper legal standards to be applied in evaluating claims”). However, the Court pretermits discussion of the plaintiff’s specific arguments because the Court concludes that the ALJ erred as a matter of law at step three of the sequential analysis. Ergo, the ALJ’s conclusion that the plaintiff is not disabled is not supported by substantial evidence.
The ALJ notes:
At step three, the undersigned must determine whether the claimant’s impairment or combination of impairments meets or medically equals the criteria of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925, and 416.926). If the claimant’s impairment or combination of impairments meets or medically equals the criteria of a listing and meets the duration requirement (20 CFR 416.909, the claimant is disabled.
The burden of proof rests on a claimant to establish a prima facie case of qualifying disability. Phillips, 357 F.3d at 1237-39. Slater argues that “the ALJ failed to consider whether Mr. Slater’s medically determinable impairments met or equaled listing 12.05(C).” (Pl. Br. 3). Slater provided sufficient medical evidence to meet the prima facie requirement in Phillips, 357 F.3d at 1237-39. The record is replete with references to anxiety and depression, with the ALJ also noting the “full scale IQ scores of 64, 62, and 60.”  Plaintiff directly argues the listing of 12.05(C) in the record of the hearing as well as testifying to other limiting factors.
In Fitts v. Massanari, the court “notes that the ALJ made an error more fundamental regarding the listings in that he never once mentioned Listing 12.05, specifically 12.05(C), in his decision denying benefits.”  The court held that the ALJ erred in failing to include mild mental retardation in the list of severe impairments and in failing to analyze the evidence in light of the specific requirements of listing 12.05. Id. at *2. In Fitts the court noted that the ALJ’s finding documented both a physical impairment which imposed an “additional and significant work-related limitation of function” and that the record also contained evidence of a valid verbal, performance or full scale IQ score of 60 through 70. Id.
The Court recognizes that a valid IQ score does not mean that conclusive evidence of mental retardation exists, however the validity of IQ score must be addressed by the ALJ. Thomas v. Barnhart,  (11th Cir. Dec. 7, 2004)(where the Eleventh Circuit specifically noted that the ALJ did not specifically address the validity of the claimant’s IQ score of 69 and there was “significant evidence” that the score was valid and remanded the case so that the ALJ may properly consider the validity of the claimant’s IQ score.). While the Court concludes there is some question as to the validity and accuracy of the IQ score of Slater, there is no analysis done by the ALJ for the Court to consider. See e.g. Outlaw v. Barnhart, 197 Fed.Appx. 825 (11th Cir. 2006) (where the court held that a “valid IQ score is not conclusive of mental retardation when the IQ score is inconsistent with other evidence in the record about claimant’s daily activities.”).
The Commissioner argues that Slater did not carry his burden to produce evidence that he met the criteria of the listing. (Def. Br. 13, at 7). “[A] claimant must have a diagnosis included in the Listings and must provide medial reports documenting that the conditions meet the specific criteria of the Listings and the duration requirement.”  The ALJ must consider whether the claimant meets or equals the listings presented by the claimant.  While the ALJ does not need to mechanically recite the fact that a claimant does not meet a listing in his decision, and that the failure to meet the listing may be implied from the record, the ALJ must develop a full and fair record sufficient for this Court to review.  Additionally, the Court notes that Slater bears a burden “of proving that he is disabled, and consequently, he is responsible for producing evidence in support of his claim.” The Court makes the limited ruling that the issue of mental retardation pursuant to the listing 12.05(C) was raised sufficiently by Slater to show a prima facie case of a possible ailment that, by itself, can be found to be disabling, or disabling in conjunction with other disabilities, and the ALJ failed to address it in either the hearing or the opinion.  The Court notes that the ALJ directly addressed and discussed the Listings for 12.04 and 12.06, looking at the “paragraph B” and “paragraph C” requirements, but conspicuously failed to address the 12.05(C) Listing that was directly argued by the Claimant.
Furthermore, because the ALJ did not recognize the evidence that Slater suffers from mental retardation, he did not properly consider the effects of this impairment on Slater’s ability to work. Consequently, the Court cannot determine whether the ALJ’s conclusion that Slater is not disabled is properly supported by substantial evidence.  It is plain that the plaintiff suffers from physical and non-physical impairments, but it is less clear as to the effect of those impairments. “Even a `mild’ mental impairment may `prevent [a] claimant from engaging in the full range of jobs contemplated by the exertional category for which the claimant otherwise qualifies.'” 
For these reasons, the Court concludes that the Commissioner erred as a matter of law, and that the case warrants remand for further proceedings regarding whether the IQ score is valid, and if there are other mental or physical impairments that would cause the claimant to meet the listing under 12.05(C). The ALJ must consider every impairment alleged by the plaintiff and determine whether the alleged impairments are sufficiently severe — either singly or in combination — to create a disability.  All of the plaintiff’s impairments must be considered in combination even when the impairments considered separately are not severe. In light of the ALJ’s failure to fully and fairly consider the evidence in the record of the plaintiff’s possible mental retardation, the Court concludes that the ALJ failed to meet his burden in this regard. As a result of his failure to consider the plaintiff’s impairments in combination, doubt is necessarily cast upon the ALJ’s conclusion that the plaintiff is not disabled.
V. ConclusionAccordingly, this case will be reversed and remanded to the Commissioner for further proceedings consistent with this opinion. A separate order will be entered.
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A Social Security Judge Can Tell When A Claimant Lies Under Oath.

GORREMANS v. ASTRUE

United States District Court, D. Idaho. March 16, 2012.

Mickael Gorrmans, Plaintiff, represented by Louis Garbrecht.
Commissioner Michael J. Astrue, Defendant, represented by Benjamin J Groebner, SOCIAL SECURITY ADMINISTRATION & Joanne P Rodriguez, US ATTORNEY’S OFFICE.

 

 

RONALD E. BUSH, Magistrate Judge.
Now pending before the Court is Petitioner Mickael Gorremans’ Petition for Review filed September 16, 2010, seeking review of the Social Security Administration’s final decision to deny his disability benefits. This action is brought pursuant to 42 U.S.C. § 405(g). Having carefully reviewed the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order.
I. ADMINISTRATIVE PROCEEDINGS
On January 9, 2009, Mickael Gorremans (“Petitioner”) applied for SSI disability benefits, alleging a disability onset date of December 24, 2008, when he was 56 years old.  Petitioner’s claim was initially denied and, again, denied on reconsideration. Petitioner timely filed a Request for Hearing before an Administrative Law Judge (“ALJ”).  On February 9, 2010, ALJ James W. Sherry held a hearing in Spokane, Washington at which time Petitioner, represented by attorney Louis Garbrecht, appeared and testified.  A vocational expert, K. Diane Kramer, also appeared and testified.  At the time of the hearing, Petitioner had past relevant work as a groundskeeper, machine operator, janitor, floor cleaner/buffer, certified nurses assistant, and home health aide.
On April 8, 2010, the ALJ issued a decision, denying Petitioner’s claims, finding that Petitioner was not disabled within the meaning of the Social Security Act.  Petitioner timely requested review from the Appeals Council on June 3, 2010. The Appeals Council then denied review on August 23, 2010  rendering the ALJ’s decision the Commissioner’s final decision. Plaintiff now seeks judicial review of the Commissioner’s decision to deny benefits. Petitioner contends the ALJ erred by not giving controlling weight to the opinion of his treating physician, Dr. Dirks, and improperly rejecting Petitioner’s own testimony. He also argues that the residual functional capacity finding is not supported by the record and that Medical-Vocational Guideline 202.06 directs a finding of disabled.
II. STANDARD OF REVIEW

To be upheld, the Commissioner’s decision must be supported by substantial evidence and based on proper legal standards. 42 U.S.C. § 405(g). Findings as to any question of fact, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g). In other words, if there is substantial evidence to support the ALJ’s factual decisions, they must be upheld, even when there is conflicting evidence. 
“Substantial evidence” is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.  The standard requires more than a scintilla but less than a preponderance, and “does not mean a large or considerable amount of evidence.”
With respect to questions of fact, the role of the Court is to review the record as a whole to determine whether it contains evidence that would allow a reasonable mind to accept the conclusions of the ALJ.  The ALJ is responsible for determining credibility and resolving conflicts in medical testimony, resolving ambiguities, and drawing inferences logically flowing from the evidence. Where the evidence is susceptible to more than one rational interpretation in a disability proceeding, the reviewing court may not substitute its judgment or interpretation of the record for that of the ALJ. 
With respect to questions of law, the ALJ’s decision must be based on proper legal standards and will be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ’s construction of the Social Security Act is entitled to deference if it has a reasonable basis in law. See id. However, reviewing federal courts “will not rubber-stamp an administrative decision that is inconsistent with the statutory mandate or that frustrates the congressional purpose underlying the statute.” 
III. DISCUSSION
A. Sequential Process
In evaluating the evidence presented at an administrative hearing, the ALJ must follow a sequential process in determining whether a person is disabled in general (see 20 C.F.R. §§ 404.1520, 416.920) — or continues to be disabled (see 20 C.F.R. §§ 404.1594, 416.994) — within the meaning of the Social Security Act.
The first step requires the ALJ to determine whether the claimant is engaged in substantial gainful activity (“SGA”). 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I). SGA is defined as work activity that is both substantial and gainful. “Substantial work activity” is work activity that involves doing significant physical or mental activities. 20 C.F.R. §§ 404.1572(a), 416.972(a). “Gainful work activity” is work that is usually done for pay or profit, whether or not a profit is realized. 20 C.F.R. §§ 404.1572(b), 416.972(b). If the claimant has engaged in SGA, disability benefits are denied, regardless of how severe her physical/mental impairments are and regardless of her age, education, and work experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not engaged in SGA, the analysis proceeds to the second step. Here, the ALJ found that Petitioner had not engaged in SGA since January 9, 2009, the application date. (AR 16).
The second step requires the ALJ to determine whether the claimant has a medically determinable impairment, or combination of impairments, that is severe and meets the duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is “severe” within the meaning of the Social Security Act if it significantly limits an individual’s ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). An impairment or combination of impairments is “not severe” when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual’s ability to work. 20 C.F.R. §§ 404.1521, 416.921. If the claimant does not have a severe medically determinable impairment or combination of impairments, disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the ALJ found that Petitioner had the following severe impairments: “multilevel cervical degenerative disk disease with facet arthrosis, status post disectomy and fusion and cervical laminectomy at C3 & C4 with autograft; and central cord syndrome.” (AR 16).
The third step requires the ALJ to determine the medical severity of any impairments; that is, whether the claimant’s impairments meet or equal a listed impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the answer is yes, the claimant is considered disabled under the Social Security Act and benefits are awarded. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant’s impairments neither meet nor equal one of the listed impairments, the claimant’s case cannot be resolved at step three and the evaluation proceeds to step four. Id. Here, the ALJ concluded that Petitioner does not have an impairment (or combination of impairments) that meets or medically equals a listed impairment (AR 16).
The fourth step of the evaluation process requires the ALJ to determine whether the claimant’s residual functional capacity is sufficient for the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual’s residual functional capacity is her ability to do physical and mental work activities on a sustained basis despite limitations from her impairments. 20 C.F.R. §§ 404.1545, 416.945. Likewise, an individual’s past relevant work is work performed within the last 15 years or 15 years prior to the date that disability must be established; also, the work must have lasted long enough for the claimant to learn to do the job and be engaged in substantial gainful activity. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. Here, the ALJ ruled that Petitioner has the residual functional capacity to perform the full range of medium work as defined in 20 C.F.R. § 416.967(c). The ALJ also determined that Petitioner could perform his past relevant work as a janitor, certified nurse’s assistant, home health aide, and groundskeeper. The ALJ determined that this work does not require performance of work-related activities precluded by Petitioner’s residual functional capacity. (AR 21).
In the fifth and final step, if it has been established that a claimant can no longer perform past relevant work because of his impairments, the burden shifts to the Commissioner to show that the claimant retains the ability to do alternate work and to demonstrate that such alternate work exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). If the claimant is able to do other work, he is not disabled; if the claimant is not able to do other work and meets the duration requirement, he is disabled. Because the ALJ found Petitioner capable of performing past relevant work, he did not have to proceed to step five. However, the ALJ did found that even if Petitioner was restricted to less than a full range of light work, there were jobs that existed in significant numbers in the regional and national economies, of cleaner I and electronics assembler, that Petitioner could perform. (AR 21).
B. Analysis
1. Petitioner Credibility
Petitioner contends that the ALJ gave insufficient reasons for rejecting his testimony. In his opinion, the ALJ stated the claimant’s statements concerning the “intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.” The ALJ further stated that the objective evidence established that Petitioner is capable of performing basic work activities. The ALJ remarked that Petitioner did not follow through with physical therapy as recommended by his treating physician, Dr. Dirks, because he could not afford it and that he only medicates his pain with over-the-counter medications every other day. The ALJ also noted that while the claimant described daily activities which are fairly limited, great weight was not given to this evidence because the “allegedly limited daily activities cannot be objectively verified with any reasonable degree of certainty” and because of the difficulty attributing “that degree of limitation to the claimant’s medical condition, as opposed to other reasons, in view of the relatively weak medical evidence . . .”  The ALJ further concluded:
The claimant’s statements on the function report are not entirely credible. He said he can perform his personal care slowly. He is able to prepare simple meals. He claims he is fairly limited in several areas as a result of paralysis. He claimed he cannot do any housework, he cannot drive, and he cannot handle money. He also stated that he is under doctor’s orders to not go outside. There is no evidence in the record of continued paralysis in the upper extremities. The treatment notes show the claimant’s strength in his upper extremities has continued to improve (at least 4/5 strength). Furthermore, there is no reference in the treatment record to any doctor directing the claimant to not go outside. The claimant testified he has problems gripping and grasping items with his hands; however, after the first surgery, it is noted to have improved (4/5 strength after first surgery). Furthermore, this testimony is not consistent with the claimant’s testimony that he is able to fish, which shows he is able to hold on to a fishing pole and reel in a fishing line, which requires an ability to grip and grasp items.
The claimant testified he has difficult reaching overhead, but there is no indication in the treatment notes of any limitations in this area. There are no range of motion tests and no significant signs of weakness. The claimant asserted he has problems with stairs; however, he also said he has several flights of stairs at home to climb and descend. This suggests the claimant is able to climb and descend stairs with little difficulty. The bulk of treatment notes do not support the claimant’s assertions regarding his limitations in walking and standing. It has been noted the claimant has no difficult with ambulation. Finally, the claimant stated he can only sit for no more than ½ hour; yet, the hearing lasted longer than ½ hour and the claimant showed no signs of needing to change positions.
(AR 19-20).
The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.  The ALJ’s findings must be supported by specific, cogent reasons.  If a claimant produces objective medical evidence of an underlying impairment, an ALJ may not reject a claimant’s subjective complaints of pain based solely on lack of medical evidence.  Unless there is affirmative evidence of malingering, the ALJ must provide clear and convincing reasons for rejecting pain testimony. The reasons an ALJ gives for rejecting a claimant’s testimony must be supported by substantial evidence in the record.
In evaluating credibility, the ALJ may engage in ordinary techniques of credibility evaluation, including consideration of a claimant’s reputation for truthfulness and inconsistencies in claimant’s testimony, or between claimant’s testimony and conduct, as well as claimant’s daily activities, claimant’s work record and testimony from physicians and third parties concerning the nature, severity and effect of the symptoms of which claimant complains.  Also, the ALJ may consider: location, duration and frequency of symptoms; factors that precipitate and aggravate those symptoms; amount and side effects of medications; and treatment measures taken by claimant to alleviate those symptoms. See Soc. Sec. Ruling (SSR) 96-7p. Here, the ALJ focused on inconsistencies in claimant’s testimony as well as between his claimed limitations and the support for those limitations in the medical record. The ALJ noted that while Petitioner claimed to have great difficulty grasping and gripping many everyday items, he also testified that he would go fishing which would be inconsistent with the claimed limitations.1 Additionally, the ALJ remarked that although Petitioner stated he could not sit for longer than 20 to 30 minutes at a time, the hearing lasted longer than 30 minutes and he did not appear to need to switch positions. The ALJ also observed that Petitioner testified to extreme limitations in his upper extremities as well as with walking and standing, yet the medical evidence demonstrated improved strength (at least 4/5) in his upper extremities after his surgeries and indicated no problems with ambulation. While lack of medical evidence cannot be the sole reason for rejecting pain testimony, “medical evidence is still a relevant factor in determining the severity of the claimant’s pain and its disabling effects.”  The ALJ also focused on treatment measures taken by Petitioner, which he testified was to use over-the-counter pain medication every other day. Over-the-counter pain medication is an example of “evidence of `conservative treatment'” that “is sufficient to discount a claimant’s testimony regarding severity of an impairment.” 
Where, as here, there is substantial evidence in the record to support the ALJ’s credibility finding, the Court will not engage in second-guessing In other words, if the evidence can support either outcome, the Court may not substitute its judgment for that of the ALJ. The Court reviews the administrative record as a whole to determine whether substantial evidence supports the ALJ’s decision.  The issue is not whether the Court agrees with the ALJ’s credibility assessment, but whether the assessment is supported by the requisite findings and record evidence. Here, it is, and the Court will not substitute its own assessment for that of the ALJ.
2. Treating Physician’s Opinion
Petitioner argues that the ALJ improperly rejected the opinion of his treating physician, Dr. Dirks, by relying on the opinion of a non-examining physician.
Ninth Circuit case law distinguishes among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians).  Generally, more weight is accorded to the opinion of a treating source than to nontreating physicians.  In turn, an examining physician’s opinion is entitled to greater weight than the opinion of a nonexamining physician.  If the treating physician’s opinion is not contradicted by another doctor, it may be rejected only for “clear and convincing” reasons. If the treating doctor’s opinion is contradicted by another doctor, the Commissioner may not reject the treating physician’s opinion without providing “specific and legitimate reasons” supported by substantial evidence in the record for doing so. 
An ALJ is not required to accept an opinion of a treating physician if it is conclusory and not supported by clinical findings.  Additionally, an ALJ is not bound to a physician’s opinion of a petitioner’s physical condition or the ultimate issue of disability.  If the record as a whole does not support the physician’s opinion, the ALJ may reject that opinion.  Items in the record that may not support the physician’s opinion include clinical findings from examinations, conflicting medical opinions, conflicting physician’s treatment notes, and the claimant’s daily activities. 
The ALJ provides a detailed description of Petitioner’s medical records, which come from his treating surgeon, Dr. Dirks. On January 27, 2009, following Petitioner’s second surgery, Dr. Dirks stated that Petitioner was not released back to work and the issue should be reevaluated in three months.  On April 9, 2009, he opined that Petitioner was “disabled and unable to return to work at this stage.”  On November 3, 2009, the last treatment note from Dr. Dirks, he stated that he supported Petitioner in his quest for obtaining Social Security disability as he did “not believe he will be able to have gainful employment at this time.” (AR 304).
In regard to Dr. Dirks’ opinions as to disability, the ALJ gave his opinion little weight and stated:
Dr. Dirks provides no range of motion testing in the treatment notes. His treatment notes show the claimant’s condition has improved after both surgeries. Muscle strength testing shows the claimant has at least 4/5 strength in the upper extremities. There is no evidence of ongoing paralysis in the upper extremities. Although the doctor stated the claimant is `disabled,’ it is not clear that the doctor was familiar with the definition of `disability’ contained in the Social Security Act and regulations. The possibility always exists that a doctor may express an opinion in an effort to assist a patient with whom he or she sympathizes for one reason or another. Another reality which should be mentioned is that patients can be quite insistent and demanding in seeking supportive notes or reports from their physicians, who might provide such a note in order to satisfy their patient’s requests and avoid unnecessary doctor/patient tension. While it is difficult to confirm the presence of such motives, they are more likely in situations where the opinion in question departs substantially from the rest of the evidence of record, as in the current case.
While a treating physician’s opinion is entitled to great weight, the ALJ is not bound by his or her opinion on the ultimate issue of disability.  This is especially true if the opinion is conclusory and not supported by the clinical findings.  The ALJ does not discount the medical records from Dr. Dirks, instead he provides a thorough discussion of Petitioner’s medical history.  However, the ALJ found that Dr. Dirks’ opinion of disability departed “substantially” from the rest of the evidence in the record and conflicted with his own treatment notes and the clinical findings.  Under the Social Security regulations, the ALJ is not required to follow a treating physician’s opinion that a claimant is “disabled” or “unable to work.” 20 C.F.R. § 416.927(e)(1). Additionally, these opinions of treating physicians are not entitled to any special significance. Id. at § 416.927(e)(3). Lastly, while, as Petitioner contends, the ALJ did give significance to the Physical Residual Functional Capacity Assessment completed by a non-examining physician, this assessment was not used as a basis for rejecting Dr. Dirks’ opinion on disability. Instead, the ALJ provided specific and legitimate reasons for giving Dr. Dirks’ opinion regarding disability little weight.
3. Residual Functional Capacity Finding
Petitioner contends there is not substantial evidence in the record to support the ALJ’s finding of a medium residual functional capacity. A claimant’s residual functional capacity is the most he can do despite his limitations. 20 C.F.R. § 404.1545(a). An ALJ considers all relevant evidence in the record when making this determination. Id. The regulations define “medium work” as “lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 416.967(c).
In finding that the Petitioner could perform the full range of medium work, the ALJ relied, in part, on the opinions of two non-examining state agency physicians who reviewed the medical record and opined that Petitioner could perform medium work. (AR 286-98, 299). Petitioner contends that the ALJ should not rely on these opinions because they were made without the November 3, 2009 treatment note of Dr. Dirks which stated that he “continued to show signs and symptoms of central cord syndrome” and that he “continues to exhibit poor walking ability and poor strength.” (AR 304). Although the ALJ gave “significant weight” to the assessment of the state agency physician, Dr. Dickey, this was not the only evidence he relied upon in forming his assessment. The ALJ also evaluated the medical evidence from Dr. Dirks, including this November 3, 2009 treatment note, and Petitioner’s own testimony.  See Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (finding the ALJ was not required to incorporate opinion evidence which was permissibly discounted). The ALJ commented on the November 3, 2009 treatment note and remarked that other treatment notes found “claimant’s strength was measured as at least 4/5 and it has been noted the claimant’s ambulation is good.” (AR 19). The ALJ has considered all the relevant evidence in making his residual functional capacity finding and it is supported by substantial evidence.
Although it was not raised by Petitioner, when evaluating the ALJ’s residual functional capacity finding, the Court sua sponte examined whether the ALJ should have further developed the record in this case. Under Ninth Circuit law, an ALJ has “an independent duty to fully and fairly develop the record and to assure that the claimant’s interests are considered.”  The ALJ must supplement the record if there is “ambiguous evidence” or the ALJ has found “the record is inadequate to allow for proper evaluation of the evidence.”  When reviewing this, the Court determined that the evidence was in conflict, rather than ambiguous and the ALJ’s duty to develop the record was not invoked. Even though this is a case in which the Court has some misgivings about the result and those misgivings may have caused the Court to decide the case differently, the ALJ is entitled to deference when the decision is supported by substantial evidence.  In other words, if the evidence can support either outcome, the Court may not substitute its judgment for that of the ALJ. 
4. Medical-Vocational Guideline 202.06
Petitioner contends that under Medical Vocational Guideline 202.06, he should be found disabled. Medical Vocational Guideline 202.06 directs a finding of disability where a claimant is limited to light work, is of advance age (55 and older), has a high school education and does not have transferrable skills. 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table 2, Rule 202.06.
In his decision, after finding that Petitioner was capable of performing past relevant work, thus directing a finding of not disabled, the ALJ went on to state that even if claimant was “restricted to less than a full range of light work . . . the vocational expert testified [he] could perform the jobs of cleaner I and electronics assembler, jobs which exist in significant numbers in the regional and national economy.”
Petitioner is correct that under Ninth Circuit law, a vocational expert’s testimony cannot “supplant or override a disability conclusion dictated by the Guidelines.” The Commissioner contends that any error made by the ALJ in this regard is “harmless error.”
The Ninth Circuit has affirmed “under the rubric of harmless error where the mistake was nonprejudicial to the claimant or irrelevant to the ALJ’s ultimate disability conclusion.”  For example, in Matthews v. Shalala, the ALJ failed to include one of claimant’s limitations in his hypothetical to the vocational expert.  However, because the claimant had failed, at step four, to show that he could not return to his past work, the burden remained on him and the ALJ was not required to rely on the vocational expert’s testimony to show that the claimant could perform other kinds of work. Id. The court concluded: “The vocational expert’s testimony was thus useful, but not required . . . Any error would have been harmless.” Id.
Similarly, in this case, the ALJ concluded that Petitioner had the residual functional capacity to perform the full range of medium work (AR 16) and thus could perform his past relevant work.  The ALJ then found, alternatively, that even if Petitioner was limited to light work, significant jobs that he could perform existed in the national economy.  This was an unnecessary step that the ALJ was not required to perform having found Petitioner capable of performing past relevant work and not disabled at step four. Accordingly, if an error was made by the ALJ in not following the Medical-Vocational Guidelines, it was harmless.
IV. CONCLUSION
The ALJ is the fact-finder and is solely responsible for weighing and drawing inferences from facts and determining credibility. If the evidence is susceptible to more than one rational interpretation, one of which is the ALJ’s, a reviewing court may not substitute its interpretation for that of the ALJ.
The evidence upon which the ALJ relied can reasonably and rationally support his well-formed conclusions, despite the fact that such evidence may be susceptible to a different interpretation. Indeed, in this case, this Court might well have found differently if was to decide the case de novo. However, such a statement is drawn from a cold record, and it is not this Court’s role to alter the ALJ’s decision without some appropriate basis under the law for doing so, consistent with its role as a reviewing court only. Here, the ALJ’s decision as to Petitioner’s alleged disability is based on proper legal standards and supported by substantial evidence. Therefore, the Court concludes that the Commissioner’s determination that Petitioner is not disabled within the meaning of the Social Security Act is supported by substantial evidence in the record and is based upon an application of proper legal standards.
Accordingly, the Commissioner’s decision is affirmed.
V. ORDER
Based on the foregoing, Petitioner’s Petitioner for Review (Dkt. 1) is DENIED, the decision of the Commissioner is AFFIRMED, and this action is DISMISSED in its entirety, with prejudice.


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