IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
June 29, 1999
KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY,
The opinion of the court was delivered by: Simandle, District Judge
NOT FOR PUBLICATION
This matter comes before the Court pursuant to section 205(g) of the Social Security Act ("Act"), as amended, 42 U.S.C. § 405(g), to review the final decision of the Commissioner of the Social Security Administration ("Commissioner"), denying plaintiff's claim for Disability Insurance benefits under Title II of the Act and Supplemental Security Income ("SSI") benefits under Title XVI of the Act. The main issues in this case are (1) whether the ALJ committed reversible error in finding plaintiff was alcoholic and that absent this alcoholism plaintiff would be not be disabled; (2) whether the ALJ improperly considered two state Residual Functional Capacity Assessment forms as medical evidence, or alternatively that the ALJ gave excessive weight to these forms; and (3) whether the ALJ failed to comply with Social Security Ruling 96-8p, which requires that a Residual Functional Capacity assessment be the product of a function-by-function analysis of the job-related abilities and restrictions of the claimant. This court finds that the ALJ properly applied the law regarding alcoholism, that the finding of plaintiff's alcoholism is supported by substantial evidence, and that the ALJ properly considered the state assessment forms as medical evidence, but that the ALJ's incomplete articulation of his reasoning and unsatisfactory RFC analysis violate Ruling 96-8p. The ALJ's opinion does not provide an adequate record for us to consider the questions of whether the ALJ excessively relied on the state assessment forms or whether the finding that plaintiff's ailments other than alcoholism do not render him disabled is supported by substantial evidence. This matter is therefore remanded for further consideration consistent with this opinion and Ruling 96-8p.
A. Procedural History
Plaintiff, James T. Brinson, filed an application with the Social Security Administration ("SSA") for disability insurance benefits and SSI on July 17, 1995 for a disability allegedly commencing on January 2, 1991 due to multiple impairments. (R. 71). His application was denied initially and on reconsideration. (70, 75). Defendant determined that, while plaintiff could not return to his past relevant work, his medical condition allowed him to do less demanding work in the national economy. (R. 75-76).
Plaintiff's ensuing request for a hearing before an Administrative Law Judge ("ALJ") was granted. The hearing was held on September 17, 1996 before Administrative Law Judge Joseph M. Davidson. In his decision dated October 2, 1996, the ALJ found: that plaintiff met the insured status requirements of the Act on January 2, 1991, the date the plaintiff stated he became unable to work, and would continue to meet these requirement through December 31, 1995 (R. 19); that plaintiff has not engaged in substantial gainful activity since January 2, 1991 (Id.); that plaintiff suffers from hypertension, a seizure disorder, hearing problems and lower back pain, but that he does not have an impairment or combination of impairments listed in, or equal to, one listed in 20 C.F.R. § 404, Subpart P, Appendix 1, Regulation 4 (Id.); that plaintiff is unable to perform any of his past relevant work (R. 20); that plaintiff has the residual functional capacity ("RFC") to perform the physical exertion and non-exertional requirements of light work (R. 19); that given this RFC and plaintiff's age, education and work experience, table No. 2 of 20 C.F.R. § 404, Subpart P, Appendix 2 would direct a conclusion that plaintiff is not disabled (R. 20); that plaintiff's non-exertional limitations would not significantly reduce his capacity to perform the full range of light work, and therefore, using the table No. 2 as a framework, plaintiff is not disabled (Id.); and that plaintiff would not have been disabled if he stopped consuming alcohol (Id.).
On July 28, 1997, plaintiff timely requested the SSA Appeals Council to review the ALJ decision. The Appeals Council denied this request for review on August 27, 1996. (R. 3). Accordingly, the October 2, 1996 ALJ denial became the final decision of defendant Commissioner of Social Security.
Plaintiff timely filed this action in the United States District Court on April 25, 1997, claiming that the ALJ failed to follow administrative policy in its RFC analysis by giving weight to two state agency RFC forms. Plaintiff further contends that the ALJ erred by not meeting the requirements of Social Security Ruling 96-8p, which requires a function-by-function analysis of the specific abilities and limitations of the plaintiff prior to the selection of the RPC level. Plaintiff also claims that the ALJ performed reversible error in holding that the medical evidence establishes that the plaintiff would not have been disabled if he stopped using alcohol.
B. Personal and Medical History
1. Plaintiff's Testimony
At the September 17, 1996 hearing before the ALJ, plaintiff testified to many things. He has testified that he has decreased his consumption of alcohol from a pint of gin per day to a pint of gin per week, beginning in January 1985. This decrease was apparently motivated by a desire to increase the efficacy of the medicine which he has been taking. (R. 36-38). He testified that he suffers approximately three seizures per year (R. 38); that he no longer drives because his nerves are too bad (R. 39); that he is able to walk up and down the steps of his house, although he sometimes experiences pain in his back and knees while doing so (R. 40); that he can sit for only one hour before his alleged rectal problem becomes painful (R. 43); that he is able to cook for himself, but does not do so often, and does not do any other household chores (R. 45-46); that he does not leave the house often, but that he does visit his mother every couple of weeks, taking the bus to get there (R. 47); that he is able to bathe and dress himself, although he often suffers acute pain while bending over for activities such as tying his shoes (R. 48); that he is able to lift a gallon of milk and a ten pound bag of potatoes (R. 48); that he is able to walk four blocks before he must stop (R. 49); that he is not able to stand for long periods of time (R. 50); that he suffers from arthritis in his right shoulder which bothers him occasionally, and when the arthritis acts up, he would be unable to lift an object such as a pen with his right arm (R. 50); that he can see adequately with prescription glasses (Id.); that he has hearing problems in both ears (R. 51); that he is occasionally short of breath (R. 51); that he can not speak effectively on the telephone (R. 57); that he smokes a pack and a half of cigarettes per day (R. 51-52); that he suffers from anxiety (R. 52); that he has suffered memory loss (Id.); that he frequently experiences headaches (R. 53); that he takes walks for exercise (R. 54); that he takes medication for high blood pressure, arthritis and hives (R. 54); and that he was in an automobile accident in 1969, which rendered him paralyzed for twelve weeks (R. 60).
2. Medical Evidence
The medical evidence before the ALJ was relatively insubstantial. There were only two medical reports given by examining physicians. It also appears that no empirical tests were performed to verify plaintiff's alleged impairments. Plaintiff's treating physician, Dr. Jack Goldstein, filled out a "General Medical Report" at the request of the SSA (R. 122 & 126). The record also contains the September 18, 1995 report of an examining physician, Dr. Rasheed Ahmad (R. 130-140), two completed state agency RFC forms (R. 141-48 & 149-56) and illegible notes from the CamCare Medical Center ("CamCare") (R. 172). A summary of these findings follows.
a. Dr. Goldstein's Reports:
Dr. Goldstein was the plaintiff's treating physician and repeatedly treated plaintiff prior to his filing for benefits. At the SSA's request, Dr. Goldstein submitted a general medical report on July 12, 1995, stating that plaintiff suffers from alcoholism, hypertension and lumbosacral strain. (R. 122). He further stated that plaintiff is totally disabled (R. 123), and should perform neither heavy lifting nor bending over. (R. 125). However, Dr. Goldstein also indicated that plaintiff would be capable of performing part-time work. (R. 125). Further, in his notes following an August 27, 1994 consultation with plaintiff, Dr. Goldstein stated that plaintiff's range of motion was 90% of normal. (R. 128).
b. Dr. Ahmad's Report:
Dr. Ahmad produced a report on September 18, 1995, following an examination of plaintiff. Dr. Ahmad reported that plaintiff stated that he had been employed as a construction laborer and a railroad manufacture laborer for twenty-six years, up until 1991, when an automobile accident rendered him unable to work. (R. 130). Plaintiff told Dr. Ahmad that he has suffered frequent sporadic back pain ever since this accident. (R. 130). Plaintiff also told Dr. Ahmad that his back pain has prevented him from working in his previous relevant work as a laborer.
Dr. Ahmad concluded that plaintiff suffers from a history of seizures, although plaintiff had suffered no seizures in the preceding eight months, even without taking medication (R. 131); that plaintiff suffers hearing difficulties in both ears, but that "communication is easily possible with loud questioning" (R. 133); that plaintiff has suffered from hypertension for twenty-five years and from low backache for three years (R. 132); that plaintiff had not taken any medication in almost a year (Id.); that plaintiff's heart, lungs, liver, spleen and kidneys and bowels are normal (Id.); that plaintiff's blood pressure was markedly elevated at 190/118 (R. 133); that plaintiff told Dr. Ahmad his back aches are intermittently highly painful (R. 131); that the periods of acute back aches may last for days (R. 130); that plaintiff has difficulty performing daily routines, especially those involving bending movements, during periods of acute back aches (Id.); and that plaintiff is able to walk between two and four blocks before he must rest before resuming activities, depending on the acuteness of his backache at that particular time (R. 131). Dr. Ahmad made no mention of plaintiff suffering from any lumbrosacral strain.
c. State Agency RFC Forms:
The record also contains two Residual Functional Capacity Assessment forms which were filled out by non-examining physicians. Both forms were signed and contained an identifying medical consultant's code. The first form was completed by a Dr. H. Simmons on December 3, 1995. Dr. Simmons' form acknowledged plaintiff's hearing troubles and high blood pressure (R. 145-46), but said that the medical records on file with the SSA did not establish any exertional, postural, manipulative or visual limitations (R. 142-44). The second form was completed on December 5, 1995. The physician's signature is illegible, but as noted above, the physician is identified by his medical consultant's code. The form indicates an opinion that plaintiff is able to occasionally lift objects weighing 100 pounds or more, to frequently lift objects of 50 pounds or more, and to either sit or stand for six hours in an eight hour day (R. 150).
d. CamCare Report:
Plaintiff has received medical attention through the CamCare. At the request of plaintiff's attorney, CamCare submitted copies of plaintiff's medical records with them. However, these records were illegible. Both parties agreed to this in the section of the Joint Medical Abstract regarding the CamCare report.
A. "Disability" Defined and Burdens of Proof 1.ñDisability Defined and Burdens of Proof
The Social Security Act defines "disability" for purposes of plaintiff's entitlement to benefits 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. § 1382c(a)(3)(A). Under this definition, a claimant qualifies as disabled "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." 42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has promulgated regulations for determining disability applicable to Disability Insurance cases. See 20 C.F.R. §§ 404.1501-404.1599. Under these regulations, substantial gainful activity is defined as "work that - (a) involves doing significant and productive physical or mental duties; and (b) is done (or intended) for pay or profit." 20 C.F.R. § 404.1510. Importantly, this definition presupposes a regular, continuing, and sustained ability to perform such work. Kangas v. Bowen, 823 F.2d 775, 778 (3d Cir. 1987).
The Commissioner has promulgated regulations that determine disability by application of a five-step sequential analysis codified in 20 C.F.R. § 404.1520. The Commissioner evaluates each case according to a five-step process until a finding of "disabled" or "not disabled" is obtained. 20 C.F.R. § 404.1520(a). This five-step process is summarized as follows:
"1. If the claimant currently is engaged in substantial gainful employment, he will be found "not disabled."
"2. If the claimant does not suffer from a "severe impairment," he will be found "not disabled."
"3. If the severe impairment meets or equals a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 and has lasted or is expected to last for a continuous period of at least twelve months, the claimant will be found "disabled."
"4. If the claimant can still perform work he has done in the past ("past relevant work") despite the severe impairment, he will be found "not disabled."
"5. Finally, the Commissioner will consider the claimant's ability to perform work ("residual functional capacity"), age, education and past work experience to determine whether or not he is capable of performing other work which exists in the national economy. If he is incapable, a finding of disability will be entered. On the other hand, if the claimant can perform other work, he will be found not to be disabled." 20 C.F.R. § 404.1520(b)-(f).
Entitlement to benefits is dependent upon a finding that the claimant is incapable of performing some other type of work in the national economy.
This analysis involves a shifting burden of proof. Wallace v. Secretary of Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983). In the first four steps of the analysis, the burden is on the claimant to prove every element of her claim by a preponderance of the evidence. In the final step, however, the Commissioner bears the burden of proving that work is available for the petitioner: "Once a claimant has proved that he is unable to perform his former job, the burden shifts to the Commissioner to prove that there is some other kind of substantial gainful employment he is able to perform." Kangas, 823 F.2d at 777. See Olsen v. Schweiker, 703 F.2d 751, 753 (3d Cir. 1983). c. More Specifics: 1) Part-time Work Can Be Substantial Work
Work may be substantial though it is done part time. 20 C.F.R. § 404.1572(a) ("work may be substantial even if done on a part-time basis or if you do less, get paid less, or have less responsibility than when you worked before"); Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990).
2. Standard of Review (and definition of substantial evidence)
B. Standard of Review.
Generally a reviewing court must uphold the Commissioner's factual decisions if they are supported by "substantial evidence." 42 U.S.C. §§ 405(g), 1383(c)(3); Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied, 507 U.S. 924 (1993). "Substantial evidence" means more than "a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The inquiry is not whether the reviewing court would have made the same determination, but, rather, whether the Commissioner's conclusion was reasonable. See Brown, 845 F.2d at 1213. Thus, substantial evidence may be slightly less than a preponderance. See Hanusiewicz v. Bowen, 678 F. Supp. 474, 476 (D.N.J. 1988).
Some types of evidence will not be "substantial." For example,
"[a] single piece of evidence will not satisfy the substantiality test if the [Commissioner] ignores, or fails to resolve, a conflict created by countervailing evidence. 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 not evidence but mere conclusion." Wallace, 722 F.2d at 1153 (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)).
The reviewing court, however, does have a duty to review the evidence in its totality. See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984). In order to do so, "a court must `take into account whatever in the record fairly detracts from its weight.'" Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (quoting Willbanks v. Secretary of Health & Human Servs., 847 F.2d 301, 303 (6th Cir. 1988) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951))). The Commissioner has a corresponding duty to facilitate the court's review: "[w]here the [Commissioner] is faced with conflicting evidence, he must adequately explain in the record his reasons for rejecting or discrediting competent evidence." Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing Brewster v. Heckler, 786 F.2d 581 (3d Cir. 1986)). Nevertheless, the district court is not "empowered to weigh the evidence or substitute its conclusions for those of the fact-finder." Williams, 970 F.2d at 1182.
Moreover, apart from the substantial evidence inquiry, a reviewing court is entitled to satisfy itself that the Commissioner arrived at her decision by application of the proper legal standards. Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983); Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981). c. Findings of Fact
The ALJ must set out a specific factual basis for each finding. Baerga v. Richardson, 500 F.2d 309 (3d Cir. 1974), cert. denied, 420 U.S. 931 (1975); Root v. Heckler, 618 F. Supp. 76, 79 (D. Del. 1985). Simply referring to the "record" is insufficient. Abshire v. Bowen, 662 F. Sup. 8 (E.D. Pa. 1986).d. Medical Reports
C. The Step 5 Analysis of Residual Functional Capacity
As discussed earlier, at Step 5 of the sequential analysis, the burden of proving that work is available for the petitioner shifts to the ALJ to prove that there is some other kind of substantial gainful employment that the plaintiff is able to perform. Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987). The ALJ must determine whether plaintiff, "considering age, education, mental and physical limitations and work experience[,] `has the capacity to perform specific jobs that exist in the national economy.'" Olsen, 703 F.2d at 753 (quoting Rossi, 602 F.2d at 57). Depending on the ALJ's interpretation of the available evidence, he may either rely on the present record for this finding or collect additional information. He must, however, conduct his inquiry using the proper legal standards as enumerated in 20 C.F.R. § 404.1501-1599.c.
An ALJ's RFC findings must be supported by the medical evidence. Doak v. Heckler, 790 F.2d 26, 29 (3d Cir. 1986). A physical capacities evaluation form without a thorough written medical report is not substantial evidence. Mason v. Shalala, 994 F.2d 1058, 10965 (3d Cir. 1993).
Exertional impairments involve limitations on a claimant's ability to meet certain strength requirements of a job such as lifting, pushing, or pulling. 20 C.F.R. § 404.1545(b)(1995). Non-exertional impairments involve limitations such as postural, manipulative, or environmental impairments that do not affect a claimant's physical strength but may nevertheless prevent her from engaging in substantial gainful employment. 20 C.F.R. § 404.1545(d) (1995).
Where both exertional and non-exertional limitations are present, the secretary must take both into consideration in determining whether a claimant is disabled. Stunkard v. Secretary of Health and Human Services, 841 F.2d 57 (3d Cir. 1988). The Third Circuit has held that, "if the claimant suffers limitations not described by the guidelines -for example, non-exertional limitations - the ALJ must consider the additional limitations as well." Mason v. Shalala, 994 F.2d !058, 1064 (3d Cir. 1993). See also 20 C.F.R. Pt. 404, Subpt. P., App.2, § 200.00(d), (e) (1995); Stunkard, 841 F.2d at 61 (listing inabilities to bend, stoop, crouch, or kneel as postural limitations that should be included in the ALJ's finding as non-exertional limitations under § 404.1545).
In this action, the plaintiff makes three claims. Plaintiff first argues that the ALJ's findings that plaintiff is an alcoholic and that he would not be disabled but for his alcoholism are not supported by substantial evidence. Plaintiff's second argument is that the state Residual Functional Capacity Assessment forms ("RFCA Forms") were improperly considered as evidence, and that, alternatively, these forms were given excessive weight in overriding the opinion of the treating physician. Plaintiff's final claim is that the ALJ violated Social Security Ruling 96-8p by not performing a function-by-function analysis of plaintiff's abilities and limitations as part of his RFC assessment.
Social Security Ruling 96-8p requires the ALJ to assess residual functional capacity by first identifying the individual's functional limitations or restrictions and work-related abilities in the context of sustained work activities in an ordinary work setting on a function by function basis. Social Security Ruling 96-8p states that its purpose is, in part, "to emphasize that:
"1. Ordinarily, RFC is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule."
"4. The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by function basis."
Social Security Ruling 96-8p.
The court finds that, while substantial evidence does support the ALJ's determination that plaintiff is an alcoholic and the ALJ properly applied the law regarding alcoholism and Social Security disability, and while the ALJ did properly consider the RFCA forms, this court cannot determine whether the ALJ gave excessive weight to the RFCA forms or whether substantial evidence supports the determination that absent the alcoholism, plaintiff is not disabled. The ALJ violated Social Security Ruling 96-8p by not conducting a function-by-function analysis during the RFC determination.
This court is simply unable to discern how much weight the ALJ gave to the RFC assessment forms. The ALJ did not articulate which medical evidence he feels conflicts with other medical evidence; he did not examine the disparities or points of agreement between the examining physicians' reports and the state assessment forms; he did not provide any explanation of the relative weight which he gives to the various evidence; and he did not sufficiently discuss the weight and credibility he gave to the plaintiff's testimony. He also did not discuss which evidence conflicts, and which evidence is consistent, with other evidence on the record.
A. The ALJ's Finding of Alcoholism was Supported by Substantial Evidence, and his Application of the Law Regarding Alcoholism was Correct
It is difficult to glean what exactly the plaintiff argues in Section II of the Argument in his Memorandum of Law. He may be arguing that there was not substantial evidence on the record to support the ALJ's determination that plaintiff is an alcoholic. He may alternately be arguing that the ALJ incorrectly applied the law as to determinations of disability when alcoholism may be a factor. He may be further be arguing that the ALJ did not carry his burden of showing that the plaintiff was not disabled regardless of any alcohol use. The first argument fails because own treating physician classified him as an alcoholic. The second argument has no merit, as the ALJ correctly applied the relevant law. The third argument cannot be answered because, as section C explains, the ALJ did not sufficiently explain his reasoning and we are therefore unable to determine if substantial evidence supports a finding of `not disabled.'
Substantial evidence supports the ALJ's finding that plaintiff was an alcoholic because plaintiff's own treating physician stated that he was an alcoholic. Having found that, the ALJ correctly applied the law by looking to whether, ignoring the plaintiff's alcoholism, the plaintiff's other impairments rendered him disabled. If plaintiff is disabled, and if alcoholism is a factor contributing to this disability, the alcoholism's contribution would remove plaintiff from `disabled' status, according to 42 U.S.C. § 423(d)(2)(c). The ALJ, in his October 2, 1996 decision, stated that "[i]f the claimant were to be found disabled alcoholism would have to be [a] material factor contributing to the claimant's disability. However, alcoholism is no longer permitted to be such a factor and therefore, this claimant must be found to be not disabled." This discussion was fully consistent with the law regarding alcoholism in Social Security disability cases.
On March 29, 1996, amendments to the Social Security Act eliminated alcoholism and drug abuse as bases for obtaining Social Security disability insurance benefits. Senior Citizens' Right to Work Act of 1996, Pub. L. 104-121, 110 Stat. 847 (amending 42 U.S.C. § 423(d)(2)). The new provision applies to all final agency decisions made after March 29, 1996. Mapes v. Chater, 82 F.3d 259, 263 n.10 (1996).
Section 105(a)(1) of the Act, codified as 42 U.S.C. § 423(d)(2)(c), provides that "[a]n individual shall not be considered to be disabled for purposes of this title if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the Commissioner's determination that the individual is disabled." This provision applies both where alcoholism or drug addiction is a "contributing factor" and also where it is the only factor supporting a finding of disability.
The new law alters the legal landscape significantly. Prior to the 1996 amendments, chronic severe alcoholism or drug abuse might have constituted a disability even in the absence of any other physical impairment. McShea v. Schweiker, 700 F.2d 117, 119 (3d Cir. 1983). A finding of disability did not depend upon the presence of any objective, concrete physical impairment. Id. For example, in Swaim v. Califano, the appellate court reversed and remanded to the Commissioner for a determination of whether "claimant's longstanding and perhaps incurable problems with the use of alcohol" rendered claimant "totally disabled from alcoholism alone." Swaim v. Califano, 599 F.2d 1309, 1312 (4th Cir. 1979).
Even under the previous rules, however, it was not enough merely to satisfy the clinical definition of alcoholism. To be disabling, the alcohol addiction must have been severe enough to preclude the claimant from engaging in substantial gainful employment. Petition of Sullivan, 904 F.2d 826, 843 (3d Cir. 1990). This burden might have been carried at step three of the disability evaluation by satisfying one of the § 12.09 cross-references to impairments defined elsewhere. 20 C.F.R. Part 404, Subpt. P., App. 1, Part A. See also Petition of Sullivan, 904 F.2d at 840-843.
The new law places higher hurdles in the path of alcoholics and drug abusers seeking Social Security disability benefits. Indeed, the pertinent holdings of McShea, Purter, and Sullivan have effectively been overruled. Public Law 104-121 reintroduces the requirement that alcoholism and drug abuse manifest itself in objective, concrete physical impairments in order to qualify as disabling. Thus, end-organ damage (such as cirrhosis of the liver) or mental impairments (such as an anxiety disorder or schizophrenia) continue to bear upon the determination of disability, 20 C.F.R. Part 404, Subpt. P, App. 1, Part A, §§ 5.05, 12.03, 12.06, but alcoholism and drug abuse - standing alone - may not be considered by the Commissioner in determining whether a claimant is disabled.
The remaining question of whether substantial evidence supported the ALJ's determination that plaintiff's other impairments do not render him disabled is one that this court cannot yet answer. For reasons discussed in section C below, this court finds that the ALJ's treatment of the RFC analysis was unsatisfactory, that the step 5 analysis was therefore flawed, and that we therefore can not evaluate whether there was substantial evidence supporting an overall finding of `not disabled.'
B. The RFC Assessment Forms Were Properly Considered
Plaintiff contends that exhibits 28 and 29, both Residual Functional Capacity Assessment forms ("RFCA forms") completed by state physicians, were improperly considered, or, alternatively, were given excessive weight. This Court disagrees with the first contention, and cannot now decide on the second because of the ALJ's lack of articulated reasoning and failure to meet his Ruling 96-8p requirements.
Plaintiff offers no authority which actually supports the contention that the RFCA forms should not have been admitted into the record as medical evidence. Courts in this circuit have consistently held that state agency evaluations, even those made by non-examining physicians and psychologists, are properly admissible. Jones v. Sullivan, 954 F.2d 125 (3d Cir. 1991); McIver v. Chater, 1997 WL 152804, *3 (E.D. Pa. March 20, 1997); Shalala v. Shalala, 1994 WL 4465 (E.D. Pa. Jan. 6, 1994)(unpublished opinion)(mem.); see also Evosevich v. Consolidated Coal Co., 789 F.2d 1021 (3d Cir. 1986)(similar discussion in the realm of Workers' Compensation evidence). Such evaluations are an important aspect of many administrative records. Plaintiff cites Jones v. Sullivan as support for his proposition. This case, while not entirely supporting a position diametrically opposed to the plaintiff's argument, comes close to doing so.
In Jones, the Third Circuit Court of Appeals held that similar evaluation forms filled out by non-examining doctors were properly admitted, and that those forms in fact may properly be found to trump conflicting reports by multiple treating physicians, stating that "two physicians in the state agency evaluated the medical findings of Jones's treating physicians and concluded that those findings did not reveal any condition that would preclude gainful employment. In light of such conflicting and internally contradictory evidence, the ALJ correctly determined that the opinions of Jones's treating physicians were not controlling." Id. at 129.
The Social Security Administration recently released a report mandating the use of such RFC assessment forms when available:
"At the administrative law judge and Appeals Council levels, RFC assessments by State agency medical or psychological consultants or other program physicians . . . are to be considered and addressed in the decision as medical opinions from nonexamining sources about what the individual can still do despite his or her impairment." S.S.R. 96-6p.
As state RFC assessment forms clearly must be considered, and the plaintiff offers no authority for the proposition that such forms are inadmissible when their physician authors are identifiable by only signatures and state medical consultant's codes, these state RFCA forms were properly considered.
For reasons related to the ALJ's incomplete RFC analysis, we cannot currently answer plaintiff's alternate argument, that the RFCA forms were given excessive weight. The ALJ does not sufficiently analyze the evidence. As the next section illustrates, the ALJ did not explain his reasoning on the record, so this court does not know how he weighed the various evidence, including the RFCA forms.
The ALJ must analyze all of the perinent evidence in the record and provide an adequate explanation for disregarding evidence. Adorno v. Shalala, 40 F.3d 43 (3d Cir. 1994). It is unclear whether the ALJ in this case disregarded certain evidence, weighed some evidence more heavily than other evidence, or felt that some evidence was not inconsistent with other evidence. His opinion does not discuss whether the treating physician's opinion is or is not controverted by the other examining physician, the RFCA form assessments, or the plaintiff's own testimony. An ALJ can only reject the medical opinions of a treating physician if he or she explains on the record the reasons for doing so. See Allen v. Bowen, 881 F.2d 37, 41 (3d Cir. 1989); Brewster, 786 F.2d at 585. However, although the diagnosis of a treating physician is considered as to whether a claimant is "disabled," the ALJ has the final responsibility to determine a claimants' RFC. 20 C.F.R. § 404.1527(e)(2). The opinion of the treating physician is generally entitled to more weight than that of a one-time consultative examiner, Adorno v. Shalala, 40 F.3d 43 (3d Cir. 1994); or that of a medical advisor or other non-examining physician, Dorf v. Bowen, 794 F.2d 896 (3d Cir. 1986).
In Jones v. Sullivan, supra, the court considered the opinions of physicians from the state disability determination agency as sufficient evidence to contradict the findings of a treating physician. However, in Mason v. Shalala, 994 F.2d 1058 (3d Cir. 1993), without mentioning Jones, the court criticized the evidence from such agency physicians because of their use of forms using boxes to check off or blanks to fill in. Here, the ALJ's analysis does not provide a sufficient discussion of whether the treating physician's opinion is actually being rejected, let alone provide an explanation of the reasons for such a rejection. Without the benefit of such analysis, it is impossible to determine what weight the ALJ placed upon the various medical evaluations, or whether the ALJ's ultimate determination that plaintiff has an RFC for light work is supported by substantial evidence.
C. The RFC Determination was not Properly Explained
The Social Security Administration recently released a ruling which governs the standard which the ALJ must follow in selecting an RFC for a claimant:
"4. The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraphs (b), (c), and (d) of 20 CFR 404.1545 and 416.945."
". . . In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e. 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record."
". . . [I]n order for an individual to do a full range of work at a given exertional level, such as sedentary, the individual must be able to perform substantially all of the exertional and non-exertional functions required in work at that level. Therefore, it is necessary to assess the individual's capacity to perform each of these functions in order to decide which exertional level is appropriate and whether the individual is capable of doing the full range of work contemplated by the exertional level."
". . . Without a careful consideration of an individual's functional capacities to support an RFC assessment based on an exertional category, the adjudicator may either overlook limitations or restrictions that would narrow the ranges and types of work an individual may be able to do, or find that the individual has limitations or restrictions that he or she does not actually have." S.S.R. 96-8p (emphasis added).
Sections (b), (c), and (d) of 20 C.F.R. §404.1545 include the following functions, among others: sitting, standing, walking, lifting, carrying, pushing, stooping and crouching; and the following impairments, among others: epilepsy, hearing difficulty and vision impairment. Social Security Rulings are binding on all components of the Social Security Administration, including ALJ's. Sullivan v. Zebley, 493 U.S. 521 (1990); Finkelstein v. Sullivan, 924 F.2d 483 (3d Cir. 1990); Prince v. Sullivan, 933 F.2d 598, 602-603 (7th Cir. 1991).
Although the issue of the proper procedure for an RFC assessment under 96-8p has not been previously adjudicated in this jurisdiction, this is not the first court to consider the issue.
The Tenth Circuit Court of Appeals, for example, has on more than one occasion decided cases consistent with this decision. See Nunn v. Apfel, 149 F.3d 1191, 1998 WL 321189 (10th Cir. Jun. 8, 1998)(unpublished opinion)(stating that the RFC assessment is only proper when reached following a function-by-function evaluation of the physical limitations and levels of possible activity); Hodgson v. Apfel, 172 F.3d 62, 1999 WL 46689 (10th Cir. Feb. 3, 1999)(unpublished opinion)(stating that "[t]he ALJ failed to make the required findings . . . . He did not analyze plaintiff's ability to do work-related activities on a function-by-function basis . . . [w]ithout any of the required underlying findings, we can [not] evaluate the factual and legal correctness of the ALJ's decision . . . .").
The U.S. District Court for the Northern District of New York has also reached a similar decision, stating that:
". . . [t]he ALJ has not provided his own determinations of Plaintiff's functional and non-functional limitations, and he has utterly failed to discuss or apply any of the factors set forth at Social Security Ruling 96-8p prior to arriving at his conclusion that Plaintiff possesses the RFC to perform sedentary work. Without the benefit of the ALJ's analysis, it is impossible for the Court to determine whether substantial evidence supports his conclusion that Plaintiff is not disabled." Lewis v. Apfel, 1999 WL 184003, *6 (N.D. N.Y. Mar. 30, 1999); see also Young v. Apfel, 1999 WL 155693 (N.D. Cal. March 15, 1999).
Other courts have remanded ALJ decisions for failure to determine the ability to perform the requisite tasks for an entire work day. "Without a determination of the claimant's RFC to perform `sustained work on a regular and continuing basis,' defined as `8 hours a day, for 5 days a week,' as required by SSR 96-8p, the RFC assessment is incomplete." Wallace v. Apfel, 1996 WL 967376 (E.D. Pa. Nov. 24, 1998). See also Rinker v. Chater, No. 95 Civ. 29-3293, 1997 WL 47791 (S.D. N.Y. Feb. 6, 1997).
In the present case, the ALJ's opinion, after summarizing the reports of Dr. Goldstein and Dr. Ahmad, states:
"The next exhibit is exhibit is exhibit 28, which is the state agency residual physical capacity form. There were no exertional limits. Exhibit 29, was also a state agency residual physical functional capacity form. Both were done at the end of 1995. The second one indicated a heavy residual functional capacity. Giving the claimant the benefits of the doubt by giving some credibility to his statements of pain, a light residual functional capacity has been indicated." R. 18.
This treatment does not satisfy the requirements of Ruling 96-8p. The ALJ did not discuss the plaintiff's testimony of pain. The ALJ did not make any specific findings as to plaintiff's ability to lift 20 pounds occasionally, or 10 pounds frequently *fn1 . The ALJ did not make any finding regarding claimant's ability to walk or sit for large portions of a work day. To the extent that they were in conflict, the ALJ did not indicate why he relied on the RFCA forms over the opinions of the treating and examining physicians.
This court declines to review the record and to perform an RFC analysis, so as not to invade the ALJ's primary province. As the Third Circuit has held, access to the Commissioner's reasoning is indeed essential to a meaningful court review:
"Unless the [Commissioner] 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." Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978).
It is in the province of the ALJ, and not of this reviewing court, to follow the requisite procedure in determining the proper RFC. While there may or may not have been substantial evidence to support a light work RFC for plaintiff, this court also declines to uphold this RFC assessment, as it was not the product of the requisite function-by-function analysis. Whether or not this court feels that plaintiff's RFC classification was correct, it would run counter to the purposes of Ruling 96-8p to affirm an RFC classification which did not arise from the requisite function-by-function analysis.
Without such a fully explained opinion, this court cannot determine whether the plaintiff has the RFC to do light work and therefore whether substantial evidence supports the ALJ's determination that even absent the alcoholism plaintiff is not disabled. The court also cannot tell whether the ALJ relied excessively on the RFCA forms (which were proper for him to consider in the first place) because the court does not know how the ALJ weighed the evidence at all. The ALJ provided very little information regarding the weight that he actually gave to the medical evidence. The ALJ did not perform a function-by-function analysis of plaintiff's abilities and physical restrictions. There is very little discussion of the weight given to the plaintiff's testimony regarding pain. The ALJ opinion briefly summarizes the medical evidence, and states, without any analysis of its contents, that one of the RFCA forms "indicated" a heavy residual functional capacity, and that giving "some" credence to the plaintiff's testimony regarding pain, an RFC of light work "has been indicated." (R. 18).
This insufficient discussion does not support an informed or meaningful review. The ALJ must set out a specific factual basis for each finding. Baerga v. Richardson, 500 F.2d 309 (3d Cir. 1974), cert. denied, 420 U.S. 931 (1975); Root v. Heckler, 618 F. Supp. 76, 79 (D. Del. 1985). Simply referring to the "record" is insufficient. Abshire v. Bowen, 662 F. Sup. 8 (E.D. Pa. 1986). The ALJ failed to follow Ruling 96-8p by not analyzing plaintiff's functional limitations and abilities on a function-by-function basis, and this case is therefore remanded to the ALJ for further analysis consistent with Social Security Ruling 96-8p.
For reasons discussed above, this court remands this matter to the Commissioner for further consideration consistent with the directions set forth herein. More specifically, the Commissioner shall fully consider and explain on the record his reasons for determining whether the plaintiff has the residual functional capacity to perform light work. He shall also more fully explain the weight which he gives to the medical evidence on the record.
The accompanying Order is entered.
JEROME B. SIMANDLE U.S. District Judge
This matter having come before the court upon plaintiff James Brinson's application to review the final decision of the Secretary of Health and Human Services denying plaintiff's application for a period of disability and disability insurance benefits under Title II of the Social Security Act; and this court having considered the entire record and all submissions on behalf of the parties' and for the reasons stated in the Opinion of today's date and for good cause shown.
It is this day of June, 1999, hereby ORDERED that the final decision of the Secretary be, and hereby is, AFFIRMED in part, with respect to the ALJ's finding that claimant is an alcoholic, with respect to the ALJ's application of the law regarding alcoholism and Social Security disability, and with respect to the ALJ's determination that the state residual functional capacity assessment forms were properly admitted as medical evidence, but REMANDED for further consideration consistent with Social Security Ruling 96-8p and the accompanying opinion.
Jerome B. Simandle U.S. District Judge