Josephine Foote appeals from a district court order granting judgment in favor of the Secretary of Health and Human Services (Secretary) who denied Foote’s application for disability benefits under the Supplemental Security Income Program of the Social Security Act. 42 U.S.C. §§ 1381 et seq.
On appeal, Foote maintains that the Administrative Law Judge (ALJ) who heard her case at the agency level failed to give adequate weight to the opinion of her treating
BACKGROUND
Foote, who worked for more than eight years as a laundry worker (T. 38), filed an application for disability and disability insurance benefits on June 6, 1990, alleging disability since February 9,1987, due to a herniated and degenerating disc. (Foote had filed an unsuccessful application in December 1988, but explained that she had not pursued the earlier denial, because she was filing for Workmen’s Compensation at the time and did not read her notice of denial of disability benefits.)
After receiving an unfavorable initial determination and denial of her request for reconsideration, Foote requested a hearing. On August 6, 1991, an ALJ heard Foote’s case and on August 16, 1991, issued a decision finding Foote not disabled. On February 21, 1991, the Appeals Council denied Foote’s request for review, rendering the ALJ’s decision as the final decision of the Secretary.
On April 16, 1992, Foote brought a civil action to challenge the decision. On March 8,1993, the district court affirmed the Magistrate Judge’s Report and Recommendation of February 17,1993, upholding the Secretary’s decision denying Foote’s claim for disability insurance benefits. Foote timely appealed.
APPELLANT’S MEDICAL HISTORY
On May 4, 1987, Dr. Joseph E. Rojas reported first examining appellant Foote on referral from Dr. Leon Osmon. Foote was treated by Dr. Rojas for three months for cervical pain radiating into the left arm and hand. A May 15, 1987, X-ray revealed some bone spurring and other changes at the C4-5 and C5-6 levels. Dr. Rojas believed that the pain was caused by degenerative disc disease. He recommended that conservative treatment be tried for several months.
Appellant Foote then consulted a neurosurgeon, Dr. G. Montoya. He recommended physical therapy on an outpatient basis. On June 24, 1987, Dr. Montoya reported that Foote had pain in the left arm upon right lateral bending. Dr. Montoya diagnosed cervical radiculopathy (disease of the nerve roots) and a herniated cervical disc. Although Dr. Montoya found a slight decrease in sensation in the left forearm, he found otherwise normal reflexes and sensations. On June 26,1987, Foote entered a hospital in Orlando for spinal X-rays. Foote was discharged the next day, after Dr. Montoya found some degenerative changes in the cervical spine and defects at C4-5 and C5-6. On July 14, 1987, Foote entered another medical center in Orlando for surgical intervention to remedy the disc problem and relief of nerve root compression. The doctors performed a left C5-6 foraminotomy and root decompression on July 15, 1987. On August 31, 1987, Dr. Montoya reported that Foote exhibited slightly limited motion in the cervical spine, but no atrophy or weakness. On March 14, 1988, Dr. Montoya reported that Foote had slight diminution of range of motion of the cervical spine. On March 30, 1988, an X-ray showed degenerative joint disease affecting the cervical vertebrae.
On May 18, 1988, Dr. Fairuz Matuk, a neurosurgeon, reported that Foote was taking no medications, and had no abnormalities apart from the cervical condition. Dr. Matuk concluded that Foote had “no motor deficit” and “subjective sensory deficit that does not conform to a dermatomal pattern”. On June 17, 1988, Dr. Osmon (who began treating Foote in April 1987) opined that Foote’s former job involving hoisting bags of wet laundry had contributed to her degenerative disc disease and cervical abnormalities. On July 22, 1988, Dr. Matuk reported that Foote had “mild” weakness in the left arm and wrist, but found no significant change from his prior examination.
In a September 2, 1988, letter to Foote’s attorney, Dr. Matuk deferred to Dr. Montoya
On October 14,1988, Foote entered another hospital, Richland Memorial Hospital, for a trial cervical traction for her left shoulder and arm pain. Dr. Jack Smith diagnosed chronic neck, left shoulder and arm pain. Appellant testified that she was hospitalized and placed in traction in South Carolina for ten days in October 1988. (T. 43) On November 29, 1988, Dr. Smith reported that X-rays of Foote revealed a “very slight” epidural depression at C5-6 on the left, but he did not recommend another operation. Between late 1988 and early 1990, Foote saw no doctors. Foote claims to have been calling in for prescriptions, and that Dr. Montoya was out of the country during that time.
On July 5, 1990, Dr. Robert J. Oliva reported that Foote experienced decreased strength in the left leg and arm, and took Tylenol #3 for pain. On November 26, 1990, Dr. H.D. Brewer prepared a General Medical Examination Report for the Florida Dept, of Labor and Employment Security Division of Vocational Rehabilitation. He diagnosed degenerative disc disease in the cervical spine, and opined that Appellant would be able to work. On December 12,1990, Dr. Steven A. Field found that Foote had some tenderness adjacent to her surgical sear, but a full range of motion without any real pain. He stated that Foote was employable at “some type of sedentary job in which she doesn’t have to do any heavy lifting”.
On April 3, 1991, Dr. Donald L. Mellman (a neurosurgeon) found some weakness in areas of the left upper extremity.
EVALUATION OF APPELLANTS CLAIM BY THE ALJ
At her administrative hearing on August 6, 1991, Foote testified that she was 46 years old, 5'6" tall and 140 pounds. She stated that she took Tylenol # 3 every six hours (T. 35) and 400 mg of Motrin as needed (T. 40). She is able to sit for 15 minutes or stand for 30 minutes before experiencing muscle spasms (T. 35), and is able to carry objects weighing less than 10 pounds. She has problems putting her bra on (T. 37) and she stated that she experienced constant, but varying, pain in the back of her neck and in her arm. She has problems concentrating (T. 41). Foote is a high school graduate, and has worked in a laundromat and a sewing factory.
In evaluating a claim for disability benefits, an ALJ must evaluate the claimant’s case with respect to five criteria, as set forth in 20 C.F.R. § 404.1520:
1. Is the individual performing substantial gainful activity
2. Does she have a severe impairment
3. Does she have a severe impairment that meets or equals an impairment specifically listed in 20 C.F.R. Part 404, Subpart P, Appendix 1
4. Can she perform her past relevant work
5. Based on her age, education, and work experience, can she perform other work of the sort found in the national economy
Foote was found to meet the first four criteria for receiving benefits, specifically:
1. No gainful activity since February 9, 1987
2. Yes, severe musculoskeletal weakness due to degenerative disc disease of the cervical spine, status post C5-6 lami-nectomy with decompression, ...
3. None of the impairments listed in or medically equal to “the Listings”
4. She retained the residual functional capacity to perform a full range of sedentary work, but that her past relevant work in an industrial laundry exceeded the demands of the sedentary work classification. The ALJ noted Dr. Smith’s November 29, 1988 opinion. The ALJ stated that Foote’s complaints of disabling pain and other limitations were not fully credible in light of the medical evidence and her evidenced residual functional capacity.
As to the fifth element of the evaluation, the ALJ found that the appropriate regulation, 20 C.F.R. Part 404, Subpart P, Appendix 2, Table No. 2, directed a conclusion that Foote was “not disabled”.
The ALJ found that Appellant “has severe musculoskeletal weakness due to degenerative disc disease of the cervical spine, status
REVIEW BY THE DISTRICT COURT
On March 8, 1993, the district court adopted the Magistrate’s Report & Recommendation and affirmed the ALJ’s decision. This court must review the lower court’s decision and determine whether that conclusion, as a whole, was supported by substantial evidence in the record. 42 U.S.C. 405(g).
The Magistrate cited the findings of Dr. Field (from December 1990), the only doctor to assess Foote’s residual functional capacity, and Foote’s own testimony that she could lift some objects, and that she walked around a mobile home park for exercise. The court found that Foote was represented at her hearing (by a non-attorney disability claims consultant), and that the ALJ properly considered Foote’s allegations of disabling pain, and set forth sufficient reasoning leading to the ultimate conclusion that Foote could perform a full range of sedentary work.
THE PARTIES’ POSITIONS
Appellant Foote contends that the ALJ’s exclusive use of the grids to arrive at a conclusion that she was not disabled was inappropriate because her pain significantly compromised her ability to perform a full range of sedentary work and, under such circumstances, a vocational expert should have been utilized. Appellant further argues that she has a clinically established underlying medical condition: cervical spondylosis particularly at C5-6. This claim is supported by medical evidence of limited range of motion, diminished sensation to pinprick in the left arm/hand, decreased reflexes in the left arm, muscle spasm, abnormal thermogram, muscle or motor weakness and/or decreased ant argues grip strqnj jh. That overall condition, claim-precluded application of the grids to her case. The ALJ did not properly consider Foote’s subjective complaints of pain, nor did the ALJ make specific findings of credibility. The ALJ also neglected to prove other work that Foote could perform.
The Secretary, in response, contends that Appellant had the residual functional capacity to perform a full range of sedentary work — and.therefore the ALJ did not err in applying the grids. Nor did Appellant establish the existence of a nonexertional impairment that would have precluded application of the grids. The Secretary also contends that the ALJ properly considered the evidence, and that specific findings of credibility were not required.
DISCUSSION
We find the most merit in Appellant’s second argument, as to the necessity of testimony from a vocational expert, and therefore immediately proceed to that discussion. Her first argument, regarding the ALJ’s failure to make specific credibility findings and to fully consider the medical evidence, will then be briefly addressed.
The ALJ has the obligation of developing a full and fair record regarding the vocational opportunities available to a claimant.
Allen v. Sullivan,
Review of the Secretary’s application of legal principles is plenary.
Swindle v. Sullivan,
Once the finding is made that a claimant cannot return to prior work the burden of proof shifts to the Secretary to show other work the claimant can do.
Gibson v. Heckler,
If the grids are inapplicable, the Secretary must seek expert vocational testimony. Normally, when nonexertional limitations are alleged, “the preferred method of demonstrating that the claimant can perform specific work is through the testimony of a vocational expert.”
MacGregor v. Bowen,
The ALJ found that Foote could perform a full range of work at the sedentary level, and discredited Foote’s testimony as to disabling nonexertional pain. Foote argues that the allegedly diminished grip strength in her left hand renders her lacking in “bilateral manual dexterity”, which is a necessary element in the performance of the full range of sedentary work, and should therefore preclude application of the grids in her case. “Sedentary work” is defined in the regulations at 20 C.F.R. § 404.1567(a) as work which involves
lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.
The ALJ must ‘“make a specific finding as to whether the nonexertional limitations are severe enough to preclude a wide range of employment at the given work capacity level indicated by the exertional limitations.’ ”
Johnson v. Shalala,
1993 U.S.Dist. LEXIS 8553 (S.D.Ala. May 27, 1993) (quoting
Welch v. Bowen,
Here, Appellant’s testimony and the majority of the reports of treating and examining doctors all show a continuing problem with the use of her left hand and arm, including limitation of motion, diminished sensation, abnormal reflexes, weakness and pain. The regulations accompanying the grids state that the “inability to perform jobs requiring bilateral manual dexterity significantly compromises” the range of sedentary work a claimant can perform. 20 C.F.R. Part 404, Subpart P, Appendix 2, § 201.00(h). In So
In her brief to the District Court, Memorandum in Support of the Secretary’s Decision, Ex. 7, the Secretary acknowledged that “bilateral manual dexterity is a necessary element in the performance of the full range of sedentary work.” 20 C.F.R. Part 404, Subpart P, Appendix 2, § 201.00(h). The Secretary contends, however, that grip strength is not a necessary element in the performance of sedentary work.
Dr. Field’s report does not entirely support the ALJ’s conclusion that the Appellant can do a “full range” of sedentary work. Dr. Field stated that:
... she very well might require further surgery to relieve her discomfort and pain. In the meantime, I would find that this patient is employable at some type of sedentary job in which she doesn’t have to do any heavy lifting. She is right hand dominate and therefore, can use this hand and only needs the left hand for balance.
T. 197.
The conclusion that the failure to use a vocational expert was error seems warranted. This compelling need in view of the pain complaints will be treated hereafter.
II. Did the ALJ properly consider the evidence
The Social Security Act mandates that “findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). Substantial evidence is defined as more than a scintilla, i.e., evidence that must do more than create a suspicion of the existence of the fact to be established,
Walden v. Schweiker,
A. Subjective complaints of pain
The Secretary must consider a claimant’s subjective testimony of pain if she finds evidence of an underlying medical condition, and either (1) objective medical evidence to confirm the severity of the alleged pain arising from that condition, or (2) that the objectively determined medical condition is of a severity that can reasonably be expected to give rise to the alleged pain.
Mason v. Bowen,
The pain standard requires (1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain.
A claimant may establish that her pain is disabling through objective medical evidence that an underlying medical condition exists that could reasonably be expected to produce the pain. 20 C.F.R. § 404.1529 provides that once such an impairment is established, all evidence about the intensity, persistence, and functionally limiting effects of pain or other symptoms must be considered in addition to the medical signs and laboratory findings in deciding the issue of disability.
The ALJ found, inter alia, as noted by the district court, that:
The medical evidence does not reflect any neurologic deficits. The claimant’s reported activities of daily living do not suggest the presence of a condition which could reasonably be expected to produce disabling pain.
Magistrate’s R & R, p. 10. The Appeals Council stated,
The decision shows that the Administrative Law Judge’s evaluation as to the credibility of your subjective complaints is consistent with that ruling. In addition to assessing the objective medical findings the Administrative Law Judge cited the use of medications, daily activities, physician opinions, and your conservative treatment since surgery in July 1987.
Magistrate’s R & R, p. 10.
The ALJ stated (T. 17-18) that:
In finding the claimant able to perform at least a full range of sedentary level work, the Administrative Law Judge has also considered the claimant’s subjective complaints with regard to pain. The claimant reported taking Tylenol No. 3 and Motrin as needed for relief of pain. Neither the claimant’s testimony [n]or the evidence of record would indicate that these pain relievers are ineffective in relieving the claimant’s symptoms with regard to pain. The medical evidence does not reflect any neurologic deficits. The claimant’s reported activities of daily living do not suggest the presence of a condition which could reasonably be expected to produce disabling pain. She stated that she can lift and carry objects weighing up to 10 pounds and does perform light household chores, including cooking. She reported driving and shopping for needed household items. She reported walking around the mobile home park where she lives for exercise. She reported the ability to care for her own personal needs without assistance including bathing, feeding and dressing. Such activities are found to be consistent with the performance of at least a full range of sedentary work.
Here, the medical evidence indicates that claimant did have a medical condition that could reasonably be expected to cause pain. This pain could reasonably be related to the medical condition that was clearly established. Appellant consistently complained of pain to her treating doctors. The ALJ’s conclusion that Appellant’s pain was not so disabling as to have significantly affected her residual functional capacity is not supported by substantial evidence in the record. His citation to Appellant’s testimony as to her daily activities is not sufficient support for such conclusions. Appellant testified at her sixteen (16) minute administrative hearing that she could still cook and do the shopping. (T. 37) However, there was other testimony indicating that appellant’s daily activities have been significantly affected. For example, her pain is so great that she has trouble putting on her bra. (T. 37) This Court must consider “the entire record and take account of the evidence in the record which detracts from the evidence relied on by the [Secretary].”
Parker v. Bowen,
B. Were credibility findings made
If the ALJ decides not to credit a claimant’s testimony as to her pain, he must articulate explicit and adequate reasons for
The ALJ found that:
The medical evidence establishes that while the claimant has an impairment which could be expected to produce some discomfort on attempts at strenuous exertion, such condition is not one that would preclude engagement in all work activity.
T. 19.
A clearly articulated credibility finding with substantial supporting evidence in the record will not be disturbed by a reviewing court.
MacGregor v. Bowen,
CONCLUSION
Absent testimony from a vocational expert, the ALJ’s conclusion that Appellant’s pain limitations do not significantly compromise her ability to perform a full range of sedentary work is not supported by substantial evidence. Without bilateral manual dexterity, and evidence of other non-exertional impairment, the Secretary’s own regulation, ruling, and
Patterson v. Bowen,
all dictate that the exclusive use of the Grids is inappropriate. Because the ALJ did not use a vocational expert to establish evidence of “other work” Appellant can perform, this ease must be remanded for such determination. The Secretary has not complied with her burden of developing a full and fair record with substantial evidence showing that there were