functioning. These factors notwithstanding, the ALJ determined that the plaintiff does not have an impairment or combination of impairments listed in, or medically equal to one listed in, Appendix 1, Subpart P, Regulation 4 of the Social Security Administration Regulations ("Regulations"). 20 C.F.R. Part 404, Subpart P, Appendix 1. Therefore, the ALJ found the plaintiff to be not disabled under the Appendix 1 analysis.
In an important evidentiary decision, the ALJ concluded that there is substantial evidence that contradicts Dr. Simon's determination that the plaintiff is disabled. In addition, the ALJ found the plaintiff's claims of disabling pain and total disability to be not credible when weighed against the evidence of the record. In finding the plaintiff's claims not credible, the ALJ considered: the plaintiff's minimal intake of pain medication; the lack of current treatment for physical or emotional pain; the normal range of motion of her spine and extremities; the normal x-ray examinations of her left knee and spine; and her neurological intactness.
Looking to the plaintiff's ability to work, the ALJ found that her physical impairments preclude her from performing work that involves prolonged standing or walking, repetitive bending or stooping, and heavy lifting. The ALJ, however, determined that the plaintiff is able to understand and carry out instructions, exercise simple judgment, interact with others, and deal with routine changes in a work setting. In consideration of these factors, the ALJ concluded that plaintiff is unable to perform her past relevant work as a barmaid or as a packer/sorter due to the exertional demands of such work.
The ALJ next sought to determine the plaintiff's residual functional capacity. From an exertional standpoint alone, the ALJ concluded that the plaintiff retains the residual functional capacity to perform a wide range of sedentary work as defined by the Regulations. Moreover, the ALJ found that the plaintiff's non-exertional impairment would not diminish her capacity for unskilled sedentary work. The ALJ also determined that the plaintiff does not have any acquired work skills which are transferable to the skilled or semi-skilled work functions of other work. 20 C.F.R. §§ 404.1568 and 416.968.
Other vocational factors taken into account included plaintiff's limited education (20 C.F.R. §§ 404.1564 and 416.964) and her age (38). Based on the plaintiff's residual functional capacity for a wide range of sedentary work, and her age, education, and past work experience, the ALJ concluded that there are other jobs which the plaintiff can perform and that such jobs exist in significant numbers in the national economy. Thus, under § 404.1569 of Regulation 4 and § 416.969 of Regulation 16, and Rule 201.24, Table No. 1, Appendix 2, Subpart P, Regulation 4, the ALJ found the plaintiff to be not disabled.
Finally, the ALJ concluded that the plaintiff was not under a disability, as defined in the Social Security Act, at any time through the date of his decision. 20 C.F.R. § 404.1520(f) and § 416.920(f). Therefore, the ALJ ruled that the plaintiff is not entitled to a period of disability, disability insurance benefits, or supplemental security income.
Before reviewing the appropriateness of the ALJ's conclusions, the procedural decision to rely on Dr. Gelman's post-hearing report must be addressed. A claimant whose application for disability benefits is denied is entitled to "reasonable notice and opportunity for a hearing with respect to such a decision." Allison v. Heckler, 711 F.2d 145, 147 (10th Cir. 1983) (citing 42 U.S.C. § 405(b)(1) (Supp. V 1981)). Such a hearing is subject to procedural due process considerations. Richardson v. Perales, 402 U.S. 389, 401-02, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971). Accordingly, an ALJ's use of a post-hearing medical report constitutes a denial of due process where the claimant is not given the opportunity to subpoena and cross-examine the physician or to rebut the report.
Allison, 711 F.2d at 147; Gullo v. Califano, 609 F.2d 649, 650 (2d Cir. 1979). Furthermore, the reliance upon such a report exceeds the Secretary's statutory authority, as he is clearly mandated by statute to determine a claimant's disability "on the basis of evidence adduced at the hearing." Allison, 711 F.2d at 147 (citing 42 U.S.C. § 405(b)(1)). Thus, an ALJ's utilization of such a post-hearing report serves to invalidate a decision denying a claimant's benefits. Allison, 711 F.2d at 147; Gullo, 609 F.2d at 650.
In the case of the plaintiff, Valerie Johnson, the ALJ clearly relied upon Dr. Gelman's post-hearing report in deciding to deny the plaintiff's request for benefits. Neither the plaintiff nor her counsel were given the opportunity to see the report until receiving a copy from the Appeals Council. Obviously, it was impossible for the plaintiff to either cross-examine Dr. Gelman or rebut his report prior to the ALJ's decision on November 24, 1986, resulting in a denial of the plaintiff's right to due process. Moreover, the ALJ exceeded the Secretary's statutory authority by making a determination on the basis of evidence not adduced at the hearing. Accordingly, the judgment of the Secretary is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Since there must be a rehearing, I will address some further aspects of the ALJ's ruling in order to provide guidance to the Secretary on remand.
The standard of review focuses on whether there is substantial evidence in the record to support the Secretary's decision. 42 U.S.C. § 405(g); Brown v. Bowen, 845 F.2d 1211, slip op. at 5 (3d Cir. 1988). Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. More than a scintilla of evidence is required, but the evidence need not reach the level of a preponderance standard. Stunkard v. Secretary of Health and Human Services, 841 F.2d 57, slip op. at 6 (3d Cir. 1988). Furthermore, a single piece of evidence will not satisfy the substantiality test if the Secretary ignores, or fails to resolve, a conflict created by countervailing evidence. Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983). Nor is evidence substantial if it is overwhelmed by other evidence -- particularly certain types of evidence (e.g., that offered by treating physicians) -- or if it really constitutes mere conclusion rather than evidence. Id. at 114.
Under the Social Security Act, a claimant is disabled if she 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 twelve (12) months." 20 C.F.R. § 404.1505. In pressing her claim, the burden is solely upon the claimant to prove the existence of a disability. 42 U.S.C. § 423(d)(5). Where the claimant establishes the existence of a medically determinable impairment that precludes her from returning to her past relevant work, the burden shifts to the Secretary to "demonstrate that given the claimant's age, education, and work experience, the claimant is capable of performing substantial gainful work activity in the national economy." Stunkard, 841 F.2d at 59.
Accordingly, in determining whether the plaintiff is disabled, the major issue is whether she is capable of performing substantial gainful work activity in the national economy. The burden of proof with regard to this issue effectively shifted to the Secretary as a result of the ALJ's finding that the plaintiff cannot perform her past relevant work. The ALJ then went on to find that the plaintiff retains the residual functional capacity to perform sedentary work activity and is, therefore, not disabled. The ALJ's conclusion, however, it arguably not supported by substantial evidence.
Where the claimant suffers from only exertional impairments, the Secretary's burden may be met through reliance upon the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (the "grids"). However, where additional non-exertional impairments exist, for example, pain or lack of fine motor capacity, the grids may not be applied mechanically. Green v. Schweiker, 749 F.2d 1066, 1071-72 (3rd Cir. 1984). Instead, the Secretary must rely upon some other supporting evidence in the record, such as testimony from a vocational expert, to demonstrate that the claimant can perform work available in the national economy. Washington v. Heckler, 756 F.2d 959, 967 (3d Cir. 1985). Indeed, a vocational expert is needed when a claimant suffers from non-exertional impairments, such as pain, instead of or in addition to exertional impairments. Santise v. Schweiker, 676 F.2d 925, 934-935 (3d Cir. 1982) (citing 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(e)). In the case of Valerie Johnson, who clearly has non-exertional impairments, the ALJ failed to grant the plaintiff's request to have a vocational expert testify. Therefore, without any vocational expertise to rely upon, the ALJ's decision that the plaintiff could perform a wide range of sedentary work is not based on substantial evidence.
Moreover, in the absence of evidence that jobs exist in the national economy in significant numbers that fulfill the plaintiff's environmental requirements, an ALJ's decision that such jobs exist cannot stand. Gomez v. Heckler, 594 F. Supp. 692, 694 (E.D. Pa. 1984). There is no evidence in this case that indicates either the specific types of jobs or the numbers of jobs that are available to the plaintiff. Since the ALJ did not demonstrate that there are jobs available to the plaintiff in the national economy, his conclusion that the plaintiff is capable of performing substantial gainful work activity is not supported by substantial evidence.
The Secretary must examine all of the evidence contained in the record. Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981). Should the Secretary disregard any of the evidence in the record, he must set forth his reasons for doing so. Id. Where the Secretary fails to consider all the relevant evidence or rejects such evidence without explanation, a Court may remand the case and require the Secretary to expressly evaluate such evidence. Id. These evidentiary standards pertain to the ALJ's questionable treatment of the plaintiff's testimony and various medical opinions.
The standard for evaluating a plaintiff's subjective complaints requires:
. . . (1) that subjective complaints of pain be seriously considered even where not fully confirmed by objective medical evidence; (2) that subjective pain may support a claim for disability benefits and may be disabling; (3) that where such complaints are supported by medical evidence, they should be given great weight; and (4) that where a claimant's testimony as to pain is reasonably supported by medical evidence, the ALJ may not discount claimant's pain without contrary medical evidence.
Green, 749 F.2d at 1068. At the hearing, the plaintiff complained of pain in her left foot, left knee and lower back, as well as feelings of depression. She also detailed the ways in which her impairments serve to restrict her daily activities. The plaintiff's subjective complaints are supported by medical evidence. In finding the plaintiff to be disabled, Dr. Simon diagnosed internal derangement of the left knee and a discogenic injury of the lower back. Moreover, Dr. Jaffari found the plaintiff to have a noticeable limp and reduced range of motion in the left knee. Regarding the plaintiff's psychological problems, reports by both Dr. Raditz and Dr. Gelman confirm her claims of depression. Accordingly, the plaintiff's complaints are supported by medical evidence and should, therefore, be given great weight.
The ALJ's reasons for disregarding the plaintiff's testimony do not constitute "contrary medical evidence" to the extent that such testimony should receive no consideration. For instance, the fact that the ALJ defined the plaintiff's prescribed dosage of pain medication as a "minimal amount" does not serve to discredit the plaintiff's claims. The ALJ also considered that the plaintiff no longer receives regular treatment for either her physical or emotional pain; but he failed to mention that she was forced to cease such treatment due to her inability to pay for it. Furthermore, as the various medical reports indicate, the plaintiff's full range of motion, neurological intactness and normal x-rays do not necessarily mean that she is not experiencing pain. Accordingly, since the ALJ failed to give the plaintiff's testimony any weight and failed to specify any valid reasons for doing so, his final decision is not supported by substantial evidence.
The ALJ also failed to properly consider all of the medical evidence in determining that the plaintiff retains the residual functional capacity to perform sedentary work activity. An ALJ may not make medical determination of his own based on observations at the hearing but must decide the matter on evidence of record. Gilliland v. Heckler, 786 F.2d 178, 184 (3d Cir. 1986). Moreover, an ALJ is not free to set his own medical expertise against that of physicians who present competent medical evidence. Van Horn v. Schweiker, 717 F.2d 871, 874 (3d Cir. 1983). These legal standards notwithstanding, the ALJ in this case did indeed make medical determinations of his own that ran contrary to the medical evidence.
Dr. Raditz's report includes I.Q. test scores and other evidence that indicates that the plaintiff is mildly mentally retarded; yet after reading this report, the ALJ still made the aforementioned statement.
The claimant's treating physician's opinion is entitled to substantial weight, and an ALJ may not simply ignore the opinion of a competent, informed, treating physician. Gilliland, 786 F.2d at 183. A finding of residual functional capacity for work which conflicts with such an opinion and is made without analytical comment or record reference to contradictory evidence is not supported by substantial evidence. Gilliland, 786 F.2d at 183 (citing Rossi v. Califano, 602 F.2d 55, 57-58 (3d Cir. 1979)). Based upon the plaintiff's I.Q. test results generated by Dr. Raditz and her additional physical impairments, she could be easily classified as disabled under § 12.05(C) of 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ, however, chose to disregard the I.Q. scores submitted by Dr. Raditz, the plaintiff's treating psychologist. Instead, the ALJ relied on the I.Q. scores found in Dr. Gelman's post-hearing report. Accordingly, the ALJ came to the conclusion that the plaintiff's "capacity for the full range of sedentary work has not been significantly compromised by her non-exertional limitations." (R. at 18). Such a finding is in obvious conflict with the opinion offered by the plaintiff's treating psychologist, Dr. Raditz. Furthermore, the only evidence to support such a finding is the report of Dr. Gelman, which was improperly reviewed by the ALJ.
The ALJ also paid little attention to the opinion of Dr. Simon, the plaintiff's treating orthopedist. Dr. Simon reported that the plaintiff "remains totally disabled at the present time and her prognosis for returning to work with her knee injury and her lumbar nerve root irritation is extremely poor." (R. at 126). Dr. Simon also stated that the plaintiff would need to be on a physical rehabilitation program for at least a year before deciding whether she needs further surgery on her left knee. Dr. Jaffari, however, after seeing the plaintiff only once, submitted a rather general report which categorized the plaintiff's physical impairments as somewhat less severe. Dr. Jaffari made no comments regarding the plaintiff's ability to work, nevertheless, the ALJ concluded that she retains the residual functional capacity from an exertional standpoint to perform the full range of sedentary work. There does not seem to be any evidence to support this conclusion.
ORDER - August 5, 1988, Filed
AND NOW, this 3rd day of AUGUST, 1988, upon consideration of the parties' cross-motions for summary judgment, and after careful review of the record, it is hereby
1) The defendant's motion for summary judgment is DENIED.
2) The plaintiff's motion for summary judgment is DENIED.
3) The decision of the Secretary is REVERSED, and the case REMANDED to the Secretary for reconsideration of plaintiff's requests for a period of disability, disability insurance benefits and supplemental security income in light of the Memorandum of Decision filed herewith.