Jesse v. Barnhart

• Decision Date: 30 June 2004
• Docket Number: No. 03-4147-JAR.,03-4147-JAR.
• Citation: 323 F.Supp.2d 1100
• Parties: Henrietta JESSE, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Kansas

323 F.Supp.2d 1100

Henrietta JESSE, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant.

No. 03-4147-JAR.

United States District Court, D. Kansas.

June 30, 2004.

COPYRIGHT MATERIAL OMITTED

Scott L. Johnson, Tilton & Tilton, Chtd., Topeka, KS, for Plaintiff.

D. Brad Bailey, Office of United States Attorney, Topeka, KS, for Defendant.

MEMORANDUM & ORDER

ROBINSON, District Judge.

Plaintiff Henrietta Jesse brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of Defendant Commissioner of Social Security's denial of her application for a period of disability and disability insurance benefits under Title II of the Social Security Act. The Court reverses and remands because defendant failed to fully develop the record with records and/or testimony of treating physician Dr. Bazzano. Although defendant did not err in its credibility determination, further development of the record through the evidence from Dr. Bazzano will require a reevaluation of credibility. Finally, irrespective of the failure to fully develop the record, defendant failed to properly determine plaintiff's residual functional capacity.

I. Procedural Background

On January 5, 2001, plaintiff filed her application for a period of disability and disability insurance benefits. Plaintiff is insured for disability benefits through September 30, 2000, so she must establish disability on or prior to that date in order to be entitled to Title II benefits. On plaintiff's application she claimed disability since February 24, 1993, due to limitation of extension with shooting back pain and degenerative arthritis of the lumbar spine. The application was denied both initially and upon reconsideration. At plaintiff's request, an administrative law judge (ALJ) held a hearing on November 19, 2002, at which both plaintiff and her counsel were present. On February 5, 2003, the ALJ rendered a decision denying all benefits, on the basis that plaintiff was not under a "disability" as defined by the Social Security Act. After the ALJ's unfavorable decision, plaintiff requested review by the Appeals Council; her request for review was denied on June 4, 2003. Thus, the ALJ's decision is the final decision of defendant.

II. Standard of Review

Judicial review under 42 U.S.C. § 405(g) is limited to whether defendant's decision is supported by substantial evidence in the record as a whole and whether defendant applied the correct legal standards.¹ The Tenth Circuit has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."² In the course of its review, the court may not reweigh the evidence or substitute its judgment for that of defendant.³

III. Relevant Framework for Analyzing Claim of Disability and the ALJ's Findings

"Disability" is defined in the Social Security Act as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment ...."⁴ The Social Security Act further provides that an 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...."⁵

The Social Security Administration has established a five-step sequential evaluation process for determining whether a claimant is disabled,⁶ and the ALJ in this case followed the five-step process. If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.⁷ Step one determines whether the claimant is presently engaged in substantial gainful activity.⁸ If she is, disability benefits are denied.⁹ If she is not, the decision maker must proceed to the second step.¹⁰ Here, the ALJ determined that although plaintiff was engaged in part time work after her alleged onset date, she was not engaged in substantial gainful activity and, thus, the ALJ properly proceeded to the second step.

The second step of the evaluation process involves a determination of whether "the claimant has a medically severe impairment or combination of impairments."¹¹ This determination is governed by certain "severity regulations," is based on medical factors alone, and consequently, does not include consideration of such vocational factors as age, education, and work experience.¹² Pursuant to the severity regulations, the claimant must make a threshold showing that her medically determinable impairment or combination of impairments significantly limits her ability to do basic work activities.¹³ If the claimant is unable to show that her impairments would have more than a minimal effect on her ability to do basic work activities, she is not eligible for disability benefits.¹⁴ If, on the other hand, the claimant presents medical evidence and makes the de minimis showing of medical severity, the decision maker proceeds to step three.¹⁵ The ALJ in this case concluded that plaintiff satisfied the severity requirement because of degenerative lumbar disc disease with narrowing of L5-S1 space. He found her hypertension was not severe as it was well controlled by medication. He found her anxiety was mild and did not meet the requirement of being expected to last for over 12 months. Thus, the ALJ proceeded to step three.

In step three, the ALJ "determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity."¹⁶ If the impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to benefits.¹⁷ If not, the evaluation proceeds to the fourth step, where the claimant must show that the "impairment prevents [the claimant] from performing work [she] has performed in the past."¹⁸ If the claimant is able to perform her previous work, she is not disabled.¹⁹ With respect to the third step of the process in this case, the ALJ determined that plaintiff's impairments were not listed or medically equivalent to those listed in the relevant regulations. At the fourth step, the ALJ concluded that plaintiff was able to perform her past relevant work as a truck driver as generally performed in the national economy at the light exertional level. Thus, the ALJ did not proceed to the fifth and final step of the sequential evaluation process-determining whether the claimant has the residual functional capacity (RFC) "to perform other work in the national economy in view of [her] age, education, and work experience."²⁰

IV. Analysis of Plaintiff's Specific Arguments

In her motion, plaintiff contends that the ALJ made the following three errors in reaching his decision: he failed to fully develop the record; he erred in finding plaintiff's testimony not credible; and he failed to properly assess plaintiff's RFC. The Court addresses each of these arguments in turn.

A. ALJ's Duty to Develop the Record

Plaintiff asserts that the ALJ erred by failing to comply with his duty to ensure that an "adequate record is developed during the disability hearing consistent with the issues raised."²¹ Plaintiff bears the burden of proving disability prior to the expiration of her insured status, and to meet this burden, plaintiff must provide the ALJ with evidence of the existence of a disability.²² However, these disability hearings are non-adversarial, and the ALJ bears responsibility for determining that the record is adequately developed.²³ Generally, "[a]n ALJ has the duty to develop the record by obtaining pertinent, available medical records which come to his attention during the course of the hearing."²⁴ This duty applies even where, as here, plaintiff is represented by counsel.²⁵

Plaintiff believes the ALJ failed to develop the record in not subpoenaing one of plaintiff's treating physicians, Dr. Bazzano, to testify at the hearing. The regulations provide that "[w]hen it is reasonably necessary for the full presentation of a case, an administrative law judge ... may, on his or her own initiative or at the request of a party, issue subpoenas for the appearance and testimony of witnesses...."²⁶ In making a request, a party must submit a written request to the ALJ stating the important facts the witness is expected to prove and indicating why the facts cannot be proven without the subpoena.²⁷ On October 29, 2002, Plaintiff's counsel wrote a letter to the ALJ requesting that he subpoena Dr. Bazzano to testify at the November 19 hearing, because plaintiff had been unable to obtain all of Dr. Bazzano's treatment records, and further advising that Dr. Bazzano had treated plaintiff before and after the accident that she claims caused her disability. Later, plaintiff's counsel advised that plaintiff had been told that Dr. Bazzano's records had been destroyed and were not available.

Inexplicably, the ALJ did not subpoena Dr. Bazzano, a physician who treated plaintiff during a relevant time period. Although the ALJ's opinion refers to certain records of Dr. Bazzono, it is not apparent from the face of some records that they are in fact the records of Dr. Bazzano. Moreover, it appears that the ALJ failed to either obtain the full records, or honor plaintiff's request that Dr. Bazzano testify. This evidence might have materially affected the ALJ's finding that plaintiff's impairments were not as severe as alleged, because she did not receive treatment for her pain between 1993 and 2000. The ALJ did consider that plaintiff underwent chiropractic treatment after 1993. But, according to plaintiff, Dr. Bazzano would testify that he was a medical doctor who treated her with chiropractic manipulation; and Plaintiff seems to allude that Dr. Bazzano also gave her other treatments for pain during the relevant...