The opinion of the court was delivered by: Judge Muir
Complaint Filed 09/10/2008
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Terry L. Daniels's application for social security disability insurance benefits. Because of legal and factual errors committed by the administrative law judge which we will discuss below, this case will be remanded to the Commissioner for further proceedings.
Disability insurance benefits are paid to an individual if that individual is disabled and "insured," that is, the individual has worked long enough and paid social security taxes. The last date that a claimant meets the requirements of being insured is commonly referred to as the "date last insured." It is undisputed that Daniels meets the insured status requirements of the Social Security Act through December 31, 2010. Tr. 17 and 50.*fn1 In order to establish entitlement to disability insurance benefits Daniels must establish that she suffered from a disability on or before that date. 42 U.S.C. § 423(a)(1)(A), (c)(1)(B); 20 C.F.R. §404.131(a)(2008); see Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir. 1990).
Daniels, who was born on September 30, 1962, claims that she became disabled on January 15, 2005, because of neck, mid-back, and low back pain, migraine headaches, a left ankle and right elbow injury, and fibromyalgia. In August of 2005 Daniels suffered multiple fractures to her pelvis and in September of 2005 blood clots in the lower extremities which she claims added to her inability to work. Tr. 15, 33, 64-65 and 101-102, 371-438. At the time of the onset of her alleged disability, Daniels was employed by Sanofi Pasteur, Inc.,*fn2 Swiftwater, Pennsylvania, as a pharmacovigilance*fn3 scientist. Tr. 47 and 73. She also had been employed as a registered nurse and cardiology technician for Lehigh Valley Hospital. Allentown, Pennsylvania. Tr. 45-46, 52 and 73.
On November 1, 2005, Daniels protectively*fn4 filed an application for disability insurance benefits. Tr. 15.*fn5
Daniels's claim was initially denied by the Social Security Administration on January 10, 2006. Tr. 31-37. On March 20, 2006, Daniels requested a hearing before an administrative law judge. Tr. 38. After a delay of over a year, a hearing was held before an administrative law judge on May 9, 2007. Tr. 461-493. On July 5, 2007, the administrative law judge issued a decision denying Daniels's application for benefits. Tr. 15-23. On August 17, 2007, Daniels filed an appeal of the administrative law judge's decision to the Appeals Council of the Social Security Administration. Tr. 11. On April 11, 2008, the Appeals Council concluded that there was no basis upon which to grant Daniels's request for review. Tr. 5-7. Thus, the administrative law judge's decision stood as the final decision of the Commissioner.
On September 10, 2008, Daniels filed a complaint in this court requesting that we reverse the decision of the Commissioner denying her disability benefits.*fn6 On the same day the Clerk of Court assigned responsibility for this case to the undersigned for disposition.
The Commissioner filed an answer to the complaint and a copy of the administrative record on November 17, 2008. After being granted an extension of time, Daniels filed her brief on February 19, 2009, and the Commissioner filed his brief on March 24, 2009. The appeal*fn7 became ripe for disposition on April 3, 2009, when Daniels filed a reply brief.
When considering a social security appeal, we have plenary review of all legal issues decided by the Commissioner. See Poulos v. Commissioner of Social Security, 474 F.3d 88, 91 (3d Cir. 2007); Schaudeck v. Commissioner of Social Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999); Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir. 1995). However, our review of the Commissioner's findings of fact pursuant to 42 U.S.C. § 405(g) is to determine whether those findings are supported by "substantial evidence." Id.; Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). Factual findings which are supported by substantial evidence must be upheld. 42 U.S.C. §405(g); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001)("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."); Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981)("Findings of fact by the Secretary must be accepted as conclusive by a reviewing court if supported by substantial evidence."); Keefe v. Shalala, 71 F.3d 1060, 1062 (2d Cir. 1995); Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001); Martin v. Sullivan, 894 F.2d 1520, 1529 & 1529 n.11 (11th Cir. 1990).
Substantial evidence "does not mean a large or considerable amount of evidence, but 'rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Pierce v. Underwood, 487 U.S. 552, 565 (1988)(quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)); Johnson v. Commissioner of Social Security, 529 F.3d 198, 200 (3d Cir. 2008); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence has been described as more than a mere scintilla of evidence but less than a preponderance. Brown, 845 F.2d at 1213. In an adequately developed factual record substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966).
Substantial evidence exists only "in relationship to all the other evidence in the record," Cotter, 642 F.2d at 706, and "must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1971). A single piece of evidence is not substantial evidence if the Commissioner ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason, 994 F.2d at 1064. The Commissioner must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Johnson, 529 F.3d at 203; Cotter, 642 F.2d at 706-707. Therefore, a court reviewing the decision of the Commissioner must scrutinize the record as a whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979).
Another critical requirement is that the Commissioner adequately develop the record. Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)("The ALJ has an obligation to develop the record in light of the non-adversarial nature of benefits proceedings, regardless of whether the claimant is represented by counsel."); Rutherford v. Barnhart, 399 F.3d 546, 557 (3d Cir. 2005); Fraction v. Bowen, 787 F.2d 451, 454 (8th Cir. 1986); Reed v. Massanari, 270 F.3d 838, 841 (9th Cir. 2001); Smith v. Apfel, 231 F.3d 433. 437 (7th Cir. 2000); see also Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 2085 (2000)("It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits[.]"). If the record is not adequately developed, remand for further proceedings is appropriate. Id.
To receive disability benefits, the plaintiff must demonstrate an "inability 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." 42 U.S.C. § 432(d)(1)(A). Furthermore,
[a]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.
42 U.S.C. § 423(d)(2)(A).
The Commissioner utilizes a five-step process in evaluating disability insurance claims. See 20 C.F.R. §404.1520; Poulos, 474 F.3d at 91-92. This process requires the Commissioner to consider, in sequence, whether a claimant (1) is engaging in substantial gainful activity,*fn8 (2) has an impairment that is severe or a combination of impairments that is severe,*fn9 (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment,*fn10 (4) has the residual functional capacity to return to his or her past work and (5) if not, whether he or she can perform other work in the national economy. Id. As part of step four the administrative law judge must determine the claimant's residual functional capacity. Id.*fn11
Residual functional capacity is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis. See Social Security Ruling 96-8p, 61 Fed. Reg. 34475 (July 2, 1996). The residual functional capacity assessment must include a discussion of the individual's abilities. Id; 20 C.F.R. § 404.1545; Hartranft, 181 F.3d at 359 n.1 ("'Residual functional capacity' is defined as that which an individual is still able to do despite the limitations caused by his or her impairment(s).").
In this case the administrative law judge at step one found that Daniels had not engaged in any substantial gainful activity since January 15, 2005, the alleged onset date of Daniels's disability. Tr. 17.
At step two, the administrative law judge found that Daniels suffers from the following severe combination of impairments: chronic back, hip and pelvis pain syndrome, fibromyalgia and a history of migraine headaches. Tr. 18. None of these impairments individually were found severe by the administrative law judge.
At step three the administrative law judge found that Daniels's impairments did not individually or in combination meet or equal a listed impairment. Tr. 18.
At the hearing before the administrative law judge the vocational expert testified that Daniels's past relevant work was semiskilled to skilled in nature and ranged from sedentary to heavy exertional work activity. Tr. 488-489. In addressing step four of the sequential evaluation process, the administrative law judge found that Daniels could not perform any of her past relevant work. However, the administrative law judge's residual functional capacity determination is vague and inconsistent. At one point the administrative law judge states that Daniels "has the residual functional capacity to perform a wide range of light work." (Emphasis added.) Tr. 18. At another point the administrative law judge states the claimant has the residual functional capacity to perform light work, as defined and described in the Social Security Rules and Regulations, which would allow for lifting and carrying 10 pounds occasionally, 5 pounds frequently, standing/walking or sitting each for six hours during the course of a regular eight-hour workday with occasional climbing, handling with the non-dominant arm in work that would allow the worker to avoid concentrated exposure to extremely hot or cold temperatures, excess humidity, pollutants, irritants and would not require working around hazardous machinery, unprotected heights, ropes, ladders, scaffolds or on vibrating surfaces and would not expose the claimant to flashing lights.
Tr. 21 (emphasis added). At another point the administrative law judge states that Daniels "is limited to performing a reduced range of light work with the limitations described above, and therefore, cannot perform any past relevant work. The claimant's past relevant light-duty work did not allow for the either the sit-stand option or the exertional limitations set forth above." Tr. 21 (emphasis added). Again at another point the administrative law judge states that Daniels "can perform a wide range of light work which exists in significant numbers in the regional economy, and in greater numbers in the state and national economies, which the claimant can perform consistent with all limitations." Tr. 22.
Sedentary and light work are described at 20 C.F.R. § 404.1567 as follows:
(a) Sedentary work. Sedentary work 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.
(b) Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.
By limiting Daniels to lifting and carry 10 pounds occasionally and 5 pounds frequently the administrative law judge set Daniels's exertional limitations at something less than light work. In fact the residual functional capacity set by the administrative law judge in her decision is more in accord with the definition of sedentary work.
Also during the hearing on May 9, 2007, the administrative law judge took testimony from a vocational expert to determine whether or not jobs exist in the national economy for an individual of Daniels's age, education, work experience and residual functional capacity. The vocational expert concluded that Daniels could not perform her past work, but could perform the unskilled, light work of order clerk, assembler, and inspector and there were significant numbers of such jobs in the national and local economies. Tr. 640. At step five, the administrative law judge concluded that Daniels was not disabled because she could perform the jobs identified by the vocational expert and that such jobs exist in significant numbers in the national and local economies. Tr. 22. However, the testimony of the vocational expert was based on the correct exertional limitations for light work - 20 pounds occasionally, ten pounds frequently.
At the hearing, the administrative law judge asked the vocational expert to assume that Daniels could "lift and carry 20 pounds occasionally, ten pounds frequently." Tr. 490. Daniels's exertional limitations set by the administrative law judge in her decision were 10 pounds occasionally, 5 pounds frequently. There is no testimony in the record from the vocational expert that Daniels could perform the jobs of order clerk, assembler and inspector with the exertional limitations set by the administrative law judge in her decision. Consequently, the decision of the administrative law judge as step five of the sequential evaluation process is defective. However, this is not the only defect in the decision of the administrative law judge.
We will review the evidence, including evidence relating to Daniels's education, employment and medical history, and then specify the additional errors committed by the administrative law judge in evaluating the evidence.
The administrative record reveals that Daniels was forty-four years of age at the time of the hearing before the administrative law judge and was considered a "younger individual" under the Social Security regulations.*fn12 Daniels has a high school education and two years of college. Tr. 71. Daniels commenced working as a cardiology technician for Lehigh Valley Hospital in 1992. Tr. 45 and 75. She worked as a cardiology technician part-time until January, 1993, and then worked full-time as a registered nurse for Lehigh Valley Hospital until May of 1999. Tr. 46, 73 and 80. In March of 1999, she suffered a trauma to her head when a tanning bed lid fell on her. Tr. 105. As a result of the injury to her head, Daniels left the nursing field. Tr. 80. In May of 1999, Daniels obtained a position as a self-employed consultant auditor for a pharmaceutical company. Tr. 46-47 and 73. Her self-employment earnings in 1999 were $33,319.00. Tr. 47. In February of 2000 she commenced employment as a clinical research associate for Sanofi Pasteur, Inc. Tr. 47 and 73. In July of 2001 she became a pharmacovigilance associate at Sanofi Pasteur, Inc., and in September of 2002 a pharmacovigilance scientist. Tr. 73. Her employment with Sanofi Pasteur, Inc., ceased when she fell and sustained an injury to her ankle in early 2005. Tr. 80.
At this point we will review some of the records of medical treatment which Daniels received prior to sustaining the injury to her ankle and elbow in early 2005. As noted Daniels suffered a head trauma in 1999 which resulted in her changing jobs. In 2000 and 2001 Daniels was employed by Sanofi Pasteur, Inc., and her earnings during those years were $37,662.17 and $49,547.88, respectively. Tr. 47.
In chronological order the first medical record contained within the administrative record is from 2001. On March 19, 2001, Daniels had an appointment with James J. Kerrigan, M.D., Neurology Associates of Monroe County, P.C., East Stroudsburg, Pennsylvania. Tr. 155-157. Dr. Kerrigan sent a letter to Daniels's family physician after that appointment which states in pertinent part as follows:
The patient . . . presents with symptoms of back pain and headaches. She states her symptoms began after an injury at a tanning salon. She states that she pushed the button to have the lid drop down on her on 3/9/99 and the mechanism broke and the lid came down on her head. She states that since that time she has had symptoms of headache and neck pain radiating to the left arm. She states she was initially seen for headaches by a neurologist in the Allentown area after she was having headaches almost daily. She states that Depakote helped to reduce the frequency of the headaches and she was able to subsequently get off the head medication. She states she continues to have migraine headaches about 1-3 x a week. She states that she typically gets a visual disturbance before the headache. . . . The headache usually lateralizes to the left side. Over the left eye she has a stabbing pounding pain associated with photophobia, sonophobia and nausea. She typically takes a nonsteroidal medication Fiorinal with codeine to help with the headache.
In addition, she notes pain on the left side of her neck associated with spasm. The pain will occasionally travel over the left arm associated with numbness and pain at the medial 3 fingers of the left hand . . . Apparently she is on physical therapy and doing yoga with light massage and finds that these do help. PHYSICAL EXAMINATION: . . . . . . . . Head is atraumatic and normocephalic. Neck is supple with mild restriction mobility and lateral rotation left side. There is tenderness along the lateral cervical region, supraclavicular and infraclavical fossa regions currently as well as along the medial scapular border region. There is some tenderness to the left neurovascular bundle region. There is a positive Tinel's*fn13 in the decubital*fn14 tunnel region bilaterally, negative at the wrists over the median and ulnar nerve. . . . .
Sensory examination reveals decreased sharp dull sensation along the medial 3 fingers of the left hand to the palm area . . . .
MRI of the cervical spine was reviewed. This demonstrates a small central C5-6 of the left lateralized disk herniation without any neuroforaminal or canal impingement. EMG*fn15 study demonstrated chronic denervation changes consistent ...