Summary: Plaintiff sought judicial review of SSA's denial of disability benefits. On cross motions for summary judgment, the court found that the ALJ failed to look at the administrative record as a whole and instead again gave considerable weight to the outdated FCA's and the opinion of a consultative medical expert. Because there is sufficient objective medical evidence, including the current FCA and the medical opinions given in conjunction therewith, to support the claimant's position, the court found that the ALJ did not base his decision on substantial evidence. SSA's decision was reversed.

Case Name: Olheiser v. SSA
Case Number: A3-99-94
Docket Number: 24
Date Filed: 12/12/00
Nature of Suit: 865

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION

REPORT AND RECOMMENDATION

Following the remand of his initial application for review (Civil No. 3:95cv163) plaintiff Michael Olheiser (hereinafter identified as "Olheiser," "claimant" or "plaintiff") again seeks judicial review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security (Commissioner) denying his application for disability insurance benefits and Supplemental Security Income benefits under Titles II and XVI, respectively, of the Social Security Act (42 U.S.C. §§ 401-433 and 1381-83c). Before the court are both parties' motions for summary judgment. (Doc. #'s 13 and 14). For the reasons articulated in this memorandum, the undersigned recommends to the court that the plaintiff's motion be GRANTED and the final decision of the Commissioner be reversed.

I. Background

This court reviewed the record prior to remanding the matter to the Commissioner for additional tests to establish Olheiser's current functional capacity. The factual discussion is repeated here in brief. This opinion will then pick up where the previous record leaves off.

Olheiser submitted an application for Title II disability insurance benefits and Title XVI Supplemental Security Income benefits on August 27, 1993. (Tr. at 143-51). ⁽¹⁾ Olheiser's application alleged that he is disabled due to a back injury, hypertension, and degenerative arthritis in his thumbs and index fingers. (Tr. at 22, 211). The Social Security Administration (SSA) denied Olheiser's application on January 4, 1994 (Tr. at 177-80). In response to Olheiser's request for reconsideration (Tr. at 181), the SSA again denied Olheiser's application. (Tr. at 192-95). Olheiser then timely requested a hearing before an ALJ (Tr. at 196), which was held on July 28, 1994. (Tr. at 20). After the hearing, the ALJ found that Olheiser "was not under a 'disability,' as defined in the Social Security Act, at any time through the date of this decision." (Tr. at 21). Consequently, the ALJ concluded that Olheiser is "not entitled to a period of disability or disability insurance benefits under sections 216(I) and 223, respectively, of the Social Security Act, and is not eligible for supplemental security income under sections 1602 and 1614(a)(3)(A) of the [Social Security] Act." (Tr. at 40).

Olheiser argued on appeal to this court that the ALJ's findings were not supported by substantial evidence because the ALJ based his opinions on outdated functional capacity assessments (FCA's). The Appeals Council considered the additional evidence that Olheiser submitted regarding his condition which questioned the validity of the outdated FCA's performed on April 9-10, 1991 and on April 3, 1992, ⁽²⁾ but found that Olheiser failed to provide a basis for changing the ALJ's decision. (Tr. 4-5). Accordingly, the Appeals Council denied Olheiser's request for review of the ALJ's decision, thus ratifying the ALJ's decision as the final decision of the Commissioner. (Id.).

After reviewing the ALJ's decision and the additional evidence, the court found that the Commissioner could not rely on the two outdated FCA's in the record to support the ALJ's decision. The ALJ's only rationalization for accepting the validity of the two FCA's was that Olheiser had not produced evidence that discredited them. However, the additional evidence presented to the Appeals Council called into question the validity of the FCA's such that this court found that "the Commissioner could not rely on the findings of the two FCA's in the record to justify the ALJ's decision." (Emphasis added). The court further found that the remaining evidence in the record did not substantially support the ALJ's finding that Olheiser was not disabled, stating that the ALJ relied heavily on the two invalid FCA's in reaching this conclusion, both in terms of determining Olheiser's exertional capacity and to discredit Olheiser's subjective complaints of pain. Due to the lack of substantial evidence in the record this court recommended "this matter be remanded to the ALJ for additional tests to establish Olheiser's current functional capacity and additional finding to follow." The District Court adopted the Magistrate Judge's recommendation in an order which found that "the agency's decision was not supported by substantial evidence in the current record because of the need for a more current FCA."(Tr. 456 (emphasis added)). Thus, the matter was remanded for further agency proceedings.

A supplemental hearing before the ALJ was held on February 25, 1998. (Tr. 286). Additional evidence presented at the time of the hearing included a Neurologic Consultation for Social Security Disability Determination Service completed by Dr. Donald Larson (Tr. 462-466), a Work Tolerance Assessment conducted on January 27, 1998, on plaintiff's initiative (Tr. 487-496), a report by Dr. Scott Turner, a treating physician, addressing the FCA results (Tr. 501-502), testimony from a medical expert, Dr. Hammarsten, and testimony of a vocational expert presented with a hypothetical question utilizing the opinion of the medical expert. On May 19, 1998, the ALJ issued a decision finding that the plaintiff was not disabled within the meaning of the Act. (Tr. 283-305). The Appeals Council denied plaintiff's request for review of the hearing decision on May 13, 1999. (Tr. 280-81). The decision of the ALJ therefore again became the final decision of the Commissioner. Plaintiff sought judicial review in a Complaint filed June 11, 1999.

II. Discussion

Upon review of the pleadings and transcript of the record, the court can affirm, modify, or reverse the decision of the Commissioner, with or without remanding the cause for a rehearing. 42 U.S.C. § 405(g). To affirm the Commissioner's decision, the court must find that it is supported by substantial evidence appearing in the record as a whole. See id.; Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989). "Substantial evidence is less than a preponderance, but enough so that a reasonable mind might find it adequate to support the conclusion." Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992); Consolidated Edison Co., et al. v. National Labor Relations Bd., et al., 305 U.S. 197, 229 (1938). The review of the record is more than a search for evidence supporting the Commissioner's decision; the court must also take into account matters that detract from the ALJ's findings and apply a balancing test to weigh evidence which is contradictory. Kirby v. Sullivan, 923 F.2d 1323, 1326 (8th Cir. 1991); Sobania v. Secretary of Health & Human Services, 879 F.2d 441, 444 (8th Cir. 1989).

Under the Social Security Act, an individual is "disabled" if he or she is "unable to engage in any substantial gainful activity ⁽⁵⁾

by reason of any medically determinable physical or mental impairment which can be expected to . . . last for a continuous period of not less than twelve months . . .." 42 U.S.C. § 1382c(a)(3)(A) (Supp. 1997). The impairment(s) must be so severe that the applicant is "not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B) (Supp. 1997).

Claims of disability are evaluated using a five-step sequential review. See 20 C.F.R. § 416.920(a) (1997). ⁽⁶⁾ The first step is to determine whether the applicant is engaged in substantial gainful employment. If the applicant is so engaged, there is no disability. If, however, the applicant is not engaged in substantial gainful employment, the second step is to consider whether the applicant has an impairment or combination of impairments that significantly limit his or her ability to perform basic work activities. ⁽⁷⁾ If there is no limiting effect, the applicant is not disabled. But, if the applicant is significantly limited by his or her impairment(s), the third step is to determine whether the impairments meet or equal a listed impairment. If the impairments do meet or equal a listed impairment, the applicant is disabled. The fourth step is to determine how the impairments affect the applicant's ability to perform past relevant work. The applicant is not disabled if he or she is still able to perform past relevant work. Finally, the fifth step is to determine whether the applicant can perform other work. If the applicant cannot perform other work, the applicant is disabled.

The applicant bears the burden of proving disability. Clark v. Shalala, 28 F.3d 828, 830 (8th Cir. 1994). "However, if the claimant can demonstrate that []he is unable to do past relevant work, and thereby reaches the fifth step in the process, the burden shifts to the [Commissioner], who must show that substantial gainful activity exists in the national economy which the claimant can perform." Id.

In the instant case, the ALJ determined that although Olheiser's limitations did not allow him to perform the full range of light work, he had the capacity to perform a significant number of jobs in the national economy. Thus, the ALJ determined that plaintiff was not disabled at the fifth and final step in the evaluation process. See 20 C.F.R. § 416.920(f).

The claimant argues that the decision of the ALJ should be overturned and a determination of disability entered in favor of the claimant because the "law of the case" suggests that Olheiser's impairments are severe. Claimant further asserts that the opinion of examining physician Dr. Scott Turner, who adopted the findings in the subsequently conducted FCA, should be given greater weight than that of the SSA medical expert witness, Dr. Hammarsten, who testified at the hearing and did not find medical evidence in the record to support the conclusion of the FCA that Olheiser be limited to 4 hours of work per day. In essence the claimant is arguing that the decision is again not supported by substantial evidence.

Rather than heed the directive of the court and obtain an FCA on its own accord, the ALJ concluded that a functional capacity evaluation was not necessary, reiterating his opinion that the former FCA's are valid. (Tr. 294). Such failure is not fatal to the Commissioner's decision, given that a post-remand FCA was in fact conducted and other additional evidence was obtained. However, whether or not this additional evidence adequately supports the Commissioner's determination of not disabled, apart from the previous FCA's, is the question presented to this court.

Substantial evidence requires only that a reasonable mind might find the evidence adequate to support the conclusion. Robinson v. Sullivan, 956 F.2d at 838. In this instance it appears the ALJ failed to look at the administrative record as a whole and instead again gave considerable weight to the outdated FCA's and the opinion of a consultative medical expert. Because there is sufficient objective medical evidence, including the current FCA and the medical opinions given in conjunction therewith, to support the claimant's position, the undersigned finds that the ALJ did not base his decision on substantial evidence.

In connection with the remand the SSA sent the claimant for a neurologic consultation by Dr. Larson at MeritCare Clinic. (Tr. 297). On July 22, 1997, Dr. Larson authored a report which addresses the claimant's history of low back pain, discusses his symptoms, his medications, as well as a neurologic examination and the physicians impressions. (Tr. 462). ⁽⁸⁾ Dr. Larson concluded that Olheiser suffers from chronic low back pain and essential hypertension treated with Cardizem and Vasotec. (Tr. 464). Dr. Larson further advised in his report that he was unable to complete the form describing the claimant's limitations, more specifically stating, "He will need an FCA for that. His last FCA had been done quite sometime ago." (Id.). The ALJ again refused to obtain an FCA in conformance with the physician's recommendation, stating that in his opinion an FCA is not necessary to make the determination on the claim. (Tr. 294). The ALJ gives no consideration to the neurologic consultant's report in his written opinion, other than to state that he complied with the court's order in obtaining additional evidence. Because the additional evidence is inconclusive as to the claimant's residual functional capacity it obviously does not support the ALJ's conclusion that the claimant is not disabled. Thus, although SSA recognized its mandate was to obtain additional evidence to determine the claimant's residual functional capacity, it wholly failed in that regard.

On or about January 5, 1998 Olheiser returned to Dr. Scott E. Turner for a recheck. Dr. Turner recognized that the x-rays showed degenerative disk disease with a mild progression since 1993. He also noted that Olheiser advised him that he "feels worse" since the last visit in January 1995. After conducting a physical examination, Dr. Turner opined that Olheiser has continued chronic myofascial low back pain, degenerative disk disease of the lumbar spine, and suffers from chronic pain syndrome. The physician's opinion had not changed, and Dr. Turner suggested Olheiser obtain an FCA with a follow up 10 days after. (Tr. 503).

The FCA was conducted on January 27, 1998. The FCA is very descriptive as to the claimant's physical capacities, including but not limited to the extent of the claimant's ability to lift, push, pull, and carry objects up to a particular weight. The FCA rates the claimant at a light level of work. The FCA also limits the claimant's hours of work, specifically stating "At this time, [Olheiser's] maximum work day is four hours." (Tr. 487-496). Following the FCA, Dr. Turner again met with Olheiser. He conducted another physical examination. His notes reflect a decrease in Olheiser's range of motion involving extension, flexion, and side bending, as well as in the lower extremities. Dr. Turner also reviewed all of the FCA's in the record. Dr. Turner noted that Olheiser went from a light-medium classification to a strictly light classification and his work day capability was reduced to 4 hours. Dr. Turner opined that "[Olheiser] is to stay within the guidelines of the most recent FCA for any of his activities of daily living. The patient demonstrated putting forth behaviors that were consistent and expected as one putting forth maximum effort." (Tr. 501-502).

In making his first determination of not disabled the ALJ relied almost exclusively on the outdated, invalid FCA's. Oddly, the ALJ gives the current FCA and physician's opinion adopting the same literally no weight at all in reaching his conclusion that the claimant is not disabled. These findings are incongruous. In discounting the validity of the current FCA's restriction to 4 hours per day, the ALJ disregards the medical opinion of Dr. Turner, who previously examined Olheiser and concluded that an updated FCA would be necessary to determine his limitations, and instead relied entirely on the bald assertion of the medical expert that there is nothing in the medical record to support this limitation. (Tr. 299). The undersigned finds that the opinion of the medical expert should not be afforded greater weight than that of the claimant's treating physician. Dr. Turner has examined the claimant on a number of occasions and concluded that he should stay within the limits of the most recent FCA. "His opinion on the matter controls if it 'is well-supported by medically acceptable. . .diagnostic techniques and is not inconsistent with the other substantial evidence' in the record." Smallwood v. Chater, 65 F.3d 87, 89 (8^th Cir. 1995) (quoting 20 C.F.R. § 404.1527(d)(2)). Dr. Turner's opinion is based on objective medical evidence and should be given considerable weight. See Metz v. Shalala, 49 F.3d 374, 377 (8^th Cir. 1995). The ALJ failed to set forth specific and legitimate reasons for disregarding Dr. Turner's opinion and the results of the 1998 FCA. See Benson v. Shalala, 54 F.3d 785, 1995 WL 299887 (9^th Cir. 1995) ( "An ALJ may completely disregard the opinion of even a treating physician where the ALJ sets forth specific and legitimate reasons for doing so based on substantial evidence in the record."). Therefore, the ALJ's opinion is not supported by substantial evidence.

As a basis for rejecting the claimant's testimony that he is not able to perform work- related activities for eight hours per day, the ALJ opined that Olheiser's activities of daily living, including some limited household chores and work activity, suggest that Olheiser is capable of performing gainful work activities. However, the ability of the claimant to perform these activities on his good days, with some difficulty, is not contrary to his testimony that on his bad days he cannot function at all. "The ability to perform sporadic light activities does not mean that the claimant is able to perform full time competitive work." Ross v. Apfel, 218 F.3d 844, 849 (8^th Cir. 2000) (citation omitted). Dr. Larson, the SSA's consultative neurologist, noted that Olheiser informed him that some days were better than others; some days he is able to walk five blocks to get the mail but other days he finds it difficult to even get out of bed. The FCA demonstrates plaintiff is not able to perform at his "good day" level on a sustained basis, which would be required for substantial gainful activity. Thus, to the extent the ALJ did not believe Olheiser's testimony on the extent of the debilitating pain, that finding is not supported by the record as a whole.

III. Conclusion

Olheiser's claim of disability is supported by objective medical evidence. For this reason the undersigned finds that the ALJ erred in finding that the claimant is not disabled. The undersigned also finds that the ALJ erred in finding that Olheiser's daily activities are inconsistent with his claims of inability to work. Neither of these findings by the ALJ are supported by substantial evidence. Because the medical evidence supports a finding of disability and there is no substantial evidence to the contrary, plaintiff should be awarded benefits from August 27, 1993, the date of his application. ⁽⁹⁾ Accordingly, IT IS RECOMMENDED THAT:

1. Plaintiff's Motion for Summary Judgment (Doc. #14) be GRANTED and judgment be entered reversing the decision of the Commissioner and awarding plaintiff benefits under Title II and Title XI from August 27, 1993.

2. Defendant's Motion for Summary Judgment (Doc. #13) be DENIED.

Pursuant to Local Rule 72.1(E)(4), any party may object to this recommendation within ten (10) days after being served with a copy thereof.

Dated this ____ day of September, 2000.

Karen K. Klein
United States Magistrate Judge

1. Plaintiff filed an initial application for Title II period of disability and disability insurance benefits on May 28, 1991, alleging disability since August 20, 1990. The application was denied on initial determination, and plaintiff failed to request further review.

On August 27, 1993, under a protective filing date of August 10, 1993, plaintiff filed a concurrent application for Title II benefits and for Title XVI benefits, again alleging disability since August 20, 1990. He did seek further review upon denial of this application. The ALJ did not address the issue whether "good cause" exists to reopen the May 28, 1991 application under 20 C.F.R. § 404.988(b) because he determined plaintiff was not disabled.