Monday, October 28, 2013

socialNsecurity Chap 6


Step 4 explores your ability to perform work you have done in the past 15 years, despite your physical or mental impairments. The claimant has the burden of proof and the burden of going forward with the evidence at Steps 1 through 4. You must prove that you cannot continue to perform work that you have done in the past.

The SSA will explore the possibility that you can perform work you have done in the past despite your chronic pain.

It does not matter at Step 4 if your former employer would not hire you, or if the place where you worked is no longer in business, or if all those jobs are now done in China. All Social Security does at this step is match your physical and mental residual functional capacity with the requirements of your former job.

 If the Social Security Administration finds that you can still perform this past relevant work, benefits are denied. If you cannot, then the process proceeds to the 5th and final step.

Many claimants complete a Work History Report (Form SSA-3369-BK) as part of a Social Security disability or SSI application process. However, the importance of the report is often not recognized by claimants. It is usually one of several reports that must be completed, and it seems innocuous. But it's not. In many claims, the work history report is just as important to the determination of disability as the claimant's medical records.  
Unless your condition meets a listed impairment, the SSA will make a medical-vocational determination of your claim at Steps 4 and 5 of the sequential evaluation. The vocational part of that determination relies heavily on your work history report, because the report helps to establish your past relevant work.
At Step 4, the SSA will simply compare your RFC to the requirements of your past work, both as that work is described in the work history report, and as generally performed (see Social Security Ruling 82-61) If Social Security determines that you can still perform your past relevant work, your claim will be denied. 
If you do not describe the work requirements accurately, Social Security may conclude that you can still perform that past relevant work. So be sure to fully describe all of the requirements of the work you have performed in the past 15 years.
  • For each job, include your rate of pay and the hours worked. If a job was part-time or did not last long, be sure to say so. Jobs that were not performed at the level of substantial gainful activity do not count as past relevant work.
  • Be sure to describe the heaviest thing you had to lift and carry. It doesn't matter if you didn't have to lift the item every day. If you had to lift it even occasionally as part of your work, be sure to include it.
  • Be sure to state how long you had to stand and walk in a workday. Again, take the maximum amount that was required, even if it was not required every day.
Keep in mind that the work history report will be used to establish the requirements of your past work, and that Social Security will assess your ability to perform the jobs you describe. So be sure to tell Social Security about the job requirements that you can no longer manage.
If you cannot perform your past relevant work, then the process proceeds to the fifth and final step.

The ALJ must state the grounds for his decision with clarity. The ALJ’s reasoning and assessment must be consistent with the evidence. Substantial evidence must support the decision. Substantial evidence is relevant evidence as a reasonable person would accept as adequate to support a conclusion.

In the following case the ALJ did not do this:
JAMES B. HANNA, Plaintiff-Appellant,
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.
No. 09-15796. Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
September 9, 2010.
Before EDMONDSON, BLACK and PRYOR, Circuit Judges.
James B. Hanna appeals the district court's order affirming the Social Security Commissioner's denial of Hanna's application for disability insurance benefits. Reversible error has been shown; we reverse and remand for additional proceedings.
Our review of the Commissioner's decision is limited to whether substantial evidence supports the decision and whether the correct legal standards were applied. Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). "Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004). Under this limited standard of review, we may not make fact-findings, re-weigh the evidence, or substitute our judgment for that of the Administrative Law Judge ("ALJ"). Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
A person who applies for Social Security disability benefits must prove his disability. See 20 C.F.R. § 404.1512.[ 1 ] The Social Security Regulations outline a five-step sequential evaluation process for determining whether a claimant is disabled. 20 C.F.R. § 404.1520. The ALJ must evaluate (1) whether the claimant engaged in substantial gainful work; (2) whether the claimant has a severe impairment; (3) whether the severe impairment meets or equals an impairment in the Listings of Impairments; (4) whether the claimant has the residual functional capacity ("RFC") to perform his past relevant work; and (5) whether, in the light of the claimant's RFC, age, education, and work experience, there are other jobs the claimant can perform. Id.
On appeal, Hanna argues that the ALJ erred in concluding, at step four, that Hanna retained the RFC to return to his past relevant work as a packaging supervisor. He contends that his hand tremors limited him to no more than occasional fine and gross manipulation; and the testimony of the medical expert ("ME") and vocational expert ("VE") — which the ALJ relied on in making its RFC determination — supported these limitations.[ 2 ] A claimant's RFC is "that which [the claimant] is still able to do despite the limitations caused by his . . . impairments." Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004). In making an RFC determination, the ALJ must consider all the record evidence, including evidence of non-severe impairments. Id.
The ALJ determined that Hanna had the RFC to perform a full range of work at all exertional levels but that he was limited to "occasional hand and finger movements, overhead reaching, and occasional gross and fine manipulation." In making this determination, the ALJ relied, in part, on the testimony of the ME. The ME, who considered all the medical evidence, initially stated that because of Hanna's tremors, his fingering/fine manipulation and handling/gross manipulation would be impaired depending on the task. The ME later stated that "most" fingering/fine manipulation activities would be limited and that handling/gross manipulation activities would be limited to the extent they required steadiness.
The ALJ's RFC assessment, as it was based on the ME's testimony, is problematic for many reasons. For instance, the ME did not specify whether the stated limitations were based on the medical evidence before Hanna's insured date or also included evidence from after this date; so it is unclear whether the assessment was significant to the relevant time period. See Moore, 405 F.3d at 1211 (a claimant is eligible for disability benefits where he demonstrates disability on or before the last date for which he was insured).[ 3 ] Also, given that the ME opined only that Hanna's manipulation limitations were task-based without specifying how often he could perform such tasks, it is unclear how the ALJ concluded that Hanna could occasionally engage in all forms of hand and finger movements, gross manipulation, and fine manipulation.[ 4 ] The ME noted that tremors could impair tasks such as handwriting and doing precise manipulative work with the upper extremities. And the record indicated that Hanna did do some writing and handling of small objects at his job as a packaging supervisor. See Lucas v. Sullivan, 918 F.2d 1567, 1574 (11th Cir. 1990) (the ALJ may make an RFC determination only after considering the specific duties of claimant's past work and evaluating claimant's ability to perform them in spite of his impairments); see also Vega v. Comm'r of Soc. Sec., 265 F.3d 1214, 1219-20 (remand is necessary where the ALJ fails to evaluate properly the effect of medical symptoms on claimant's ability to work).
The ALJ also agreed with the VE's testimony that, under the RFC determination, Hanna could return to his past work. But this conclusion is not clear from the record. The VE answered many hypothetical questions and initially interpreted the ME's assessment to mean that Hanna's gross manipulation abilities were unlimited and so, with only a restriction to fine manipulation, he could perform his past relevant work. In a separate hypothetical, the VE stated that a claimant could not return to his past work as a packaging supervisor if restricted to occasional fingering, handling, and gross and fine manipulation. The ALJ also did not include the ME's steadiness restriction in the RFC assessment; and the VE testified that a person restricted to handling that required steadiness would not be able to return to Hanna's past work.
The ALJ must state the grounds for his decision with clarity to enable us to conduct meaningful review. Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984). The ALJ has not done so here. To the extent the ALJ based Hanna's RFC assessment on hearing testimony by the ME and VE, the assessment is inconsistent with the evidence. The ALJ did not explicitly reject any of either the ME's or VE's testimony or otherwise explain these inconsistencies, the resolution of which was material to whether Hanna could perform his past relevant work. Absent such explanation, it is unclear whether substantial evidence supported the ALJ's findings; and the decision does not provide a meaningful basis upon which we can review Hanna's case.
Accordingly, we reverse and remand the district court's decision with instructions that it be returned to the Commissioner for additional proceedings consistent with this opinion. See Keeton v. Dep't of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (we must reverse when the ALJ has failed to "provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted").
Appeals courts face a difficult task in applying the substantial evidence test when the ALJ has not considered all relevant evidence. Unless the ALJ has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits, to say that his decision is supported by substantial evidence approaches an abdication of the court's "duty to scrutinize the record as a whole to determine whether the conclusions reached are rational.

MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.
No. 1:08CV560.
United States District Court, M.D. North Carolina.
September 15, 2010.
WALLACE W. DIXON, Magistrate Judge.
Plaintiff, Hattie D. Hammond, brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. §§ 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claims for Disability Insurance Benefits and Supplemental Security Income under, respectively, Titles II and XVI of the Social Security Act (the "Act"). The parties have filed cross-motions for judgment, and the administrative record has been certified to the court for review.
Procedural History
Plaintiff filed applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") on March 9, 2006, alleging a disability onset date of July 12, 2004.  The applications were denied initially and upon reconsideration. Plaintiff requested a hearing de novo before an Administrative Law Judge ("ALJ"). Present at the hearing, held on January 10, 2007, were Plaintiff and her attorney.
By decision dated April 4, 2007, the ALJ determined that Plaintiff was not disabled within the meaning of the Act. Tr. 8. On July 25, 2008, the Appeals Council denied Plaintiff's request for review of the ALJ's decision, Tr. 1, thereby making the ALJ's determination the Commissioner's final decision for purposes of judicial review.
In deciding that Plaintiff is not entitled to benefits, the ALJ made the following findings, which have been adopted by the Commissioner:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2009.
2. The claimant has not engaged in substantial gainful activity since July 12, 2004, the alleged onset date.
3. The claimant has the following severe impairments: chondromalacia and fibromyalgia syndrome.
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments.
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to lift and carry up to 20 pounds occasionally and 10 pounds frequently, sit for about 6 hours of an 8-hour workday and stand/walk at least 6 hours of an 8-hour workday.
6. The claimant is unable able to perform any past relevant work.
7. The claimant was born on July 18, 1963, and was 40 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date.
8. The claimant has a limited education and is able to communicate in English.
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework, supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills.
10. Considering the claimant's age, education, work experience and residual functional capacity ("RFC"), there are jobs that exist in significant numbers in the national economy that the claimant can perform.
11. The claimant has not been under a disability, as defined in the Social Security Act, from July 12, 2004, through the date of this decision.

In her brief before the court, Plaintiff argues that the ALJ committed reversible error by failing to adequately explain his reasoning in assessing Plaintiff's RFC and in finding that Plaintiff's allegations regarding her symptoms are not entirely credible. The Commissioner contends otherwise and urges that substantial evidence supports the determination that Plaintiff is not disabled.
Scope of Review
The Act provides that, for "eligible"[ 1 ] individuals, benefits shall be available to those who are "under a disability," defined in the Act as the 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. §§ 423(d)(1)(A) and 1382c(a)(3)(A).
To facilitate a uniform and efficient processing of disability claims, the Social Security Administration ("SSA"), by regulation, has reduced the statutory definition of "disability" to a series of five sequential questions (the "sequential evaluation process"). An examiner must determine whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Act's listing of impairments, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing any other work.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the correct law was applied. Consequently, the Act precludes a de novo review of the evidence and requires the court to uphold the Commissioner's decision as long as it is supported by substantial evidence. Substantial evidence is:
"evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is `substantial evidence.'"
Thus, it is the duty of this court to give careful scrutiny to the whole record to assure that there is a sound foundation for the Commissioner's findings, and that this conclusion is rational.  If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed.
In assessing complaints of pain, the ALJ must (1) determine whether there is objective evidence of an impairment which could reasonably be expected to produce the pain alleged by a plaintiff and, if such evidence exists, (2) consider a claimant's subjective complaints of pain, along with all of the evidence in the record. Although a claimant's allegations about pain may not be discredited solely because they are not substantiated by objective evidence of the pain itself or its severity, they need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which the impairment can reasonably be expected to cause the pain the claimant alleges she suffers. A claimant's symptoms, including pain, are considered to diminish her capacity to work to the extent that alleged functional limitations are reasonably consistent with objective medical and other evidence.
Under the regulations, this evaluation must take into account not only the claimant's statements about her pain, but also the other available evidence, including the claimant's medical history, medical signs, laboratory findings, any objective medical evidence of pain (such as evidence of reduced joint motion, muscle spasms, deteriorating tissues, redness, etc.), and any other evidence relevant to the severity of the impairment, such as evidence of daily activities, specific descriptions of the pain, and medical treatment taken to alleviate it. Id. By so doing, the fact finder should determine how the alleged pain affects the claimant's routine of life. Mickels, 29 F.3d at 921 (citing Hunter v. Sullivan, 993 F.2d 31 (4th Cir. 1992)); see also Social Security Ruling 96-7p, Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements ("SSR 96-7p").
Thus, the fact finder may not discredit a claimant solely because her subjective complaints are not substantiated by objective medical evidence. See SSR 96-7p. But neither is the adjudicator to accept the claimant's statements at face value; rather, she "must make a finding on the credibility of the individual's statements based on a consideration of the entire case record." SSR 96-7p; see also Craig, 76 F.3d at 592 ("`Pain is not disabling per se, and subjective evidence of pain cannot take precedence over objective medical evidence or the lack thereof.'" (quoting Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986)).
In this matter, Plaintiff testified that she is unable to work due to pain in her hands, which leaves her unable to lift more than five pounds and to manipulate things, like opening jars, turning doorknobs or writing with pen or pencil. Tr. 29-30. She also testified that she has pain, swelling and buckling in both knees which leaves her unable to walk a city block or stand for more than fifteen minutes, and which requires her to use a cane and knee brace. She also testified that she suffers from lower back pain, and that she can sit for only five to ten minutes before needing to change position. Plaintiff testified that she has about three "good days" per week, during which she is able to walk to her mailbox, try to cook dinner and do dishes. Tr. 30-31. On "bad days," she "pretty much [has] to lay down for the day and just really can't do but so much."
Having considered Plaintiff's testimony, the ALJ found that Plaintiff's medically determinable impairments could be expected to produce her alleged symptoms, but that her statement concerning the intensity, persistence and limiting effects of those symptoms were not entirely credible. Tr. 15. In support of this finding, the ALJ reasoned that Plaintiff testified that her pain level and ability to perform daily activities varied on "good days" and "bad days," and that she was able to cook and do light house cleaning on her good days. Id. The ALJ further reasoned that Plaintiff had admitted that there were conflicting opinions on whether she should have additional knee surgery. Id.
The court is troubled by the ALJ's reasoning for a number of reasons. The Commissioner's duty is to "present [the court] with findings and determinations sufficiently articulated to permit meaningful judicial review" DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983). In Gordon v. Schweiker, 725 F.2d 231 (4th Cir. 1984), the Fourth Circuit explained why the duty was so crucial:
The courts . . . face a difficult task in applying the substantial evidence test when the Secretary has not considered all relevant evidence. Unless the Secretary has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits, to say that his decision is supported by substantial evidence approaches an abdication of the court's "duty to scrutinize the record as a whole to determine whether the conclusions reached are rational."
Id. at 236 (quoting Arnold v. Secretary, 567 F.2d 258, 259 (4th Cir. 1977)). The reviewing court requires the fact finder "to build an accurate and logical bridge from the evidence to her conclusions so that we may afford the claimant meaningful review of the SSA's ultimate findings." Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 569 (7th Cir. 2003). Here, the ALJ has failed to sufficiently explain his decision that Plaintiff is not entirely credible so that this court can fulfil its duty to provide a meaningful review. The court has no understanding of why Plaintiff's testimony that she has good days and bad and that there are differing opinions concerning further knee surgery leads to a conclusion that her allegations of pain and other symptoms are not credible. This is especially so given that the ALJ was rather selective is reciting the substance of Plaintiff's testimony.[ 2 ]
Moreover, the ALJ failed to adequately evaluate and explain what weight was given, if any, to the medical evidence of fibromyalgia.[ 3 ] Plaintiff's treating rheumatologist, Dr. Shaili Deveshwar, examined Plaintiff on April 28, 2005, and noted that Plaintiff was positive for eighteen of eighteen fibromyalgia tender points. Tr. 139. He concluded that Plaintiff's history of arthralgias, myalgias, fatigue and positive tender points was consistent with fibromyalgia, and placed Plaintiff on a fibromyalgia program. Id. The ALJ's entire analysis of this evidence consisted of the statement, "Dr. Deveshwar opined . . . that [Plaintiff] could possibly have fibromyalgia." This analysis is both inaccurate and inadequate, especially in light of the fact this evidence provides support for Plaintiff's allegations of pain.
The court acknowledges that not all omissions by the ALJ render a decision reversible.
While agency decisions must be sustained, if at all, on their own reasoning, this principle does not mechanically compel reversal when a mistake of the administrative body is one that clearly had no bearing on the procedure used or the substance of decision reached. Where a subsidiary finding is unfounded, the court will remand the case to the agency for further consideration only if the court is in substantial doubt whether the administrative agency would have made the same ultimate finding with the erroneous finding removed from the picture.
 However, in this case, the ALJ's error is not inconsequential to the ultimate disability determination. A decision of the ALJ will not be reversed for errors that are harmless. Here, there is medical evidence in the record that supports Plaintiff's allegations and which must be sufficiently evaluated by the ALJ in reaching his decision.
Conclusion and Recommendation
For the foregoing reasons, the decision of the Commissioner is not supported by substantial evidence. Therefore, IT IS RECOMMENDED that the Commissioner's decision finding no disability be REVERSED, and that the matter be REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand the matter to the ALJ for proceedings consistent with this Recommendation. To this extent, Plaintiff's motion for summary judgment should be GRANTED, and Defendant's motion for judgment on the pleadings should be DENIED.


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