South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Julie M. Williams vs. SCDHHS

AGENCY:
South Carolina Department of Health and Human Services

PARTIES:
Appellant:
Julie M. Williams

Respondents:
South Carolina Department of Health and Human Services
 
DOCKET NUMBER:
98-ALJ-08-0730-AP

APPEARANCES:
Appellant & Representative: Julie M. Williams, Vernon Sumwalt, Esquire

Respondents & Representative: South Carolina Department of Health and Human Services, Charles Black, Esquire

Parties Present: Both Parties
 

ORDERS:

FINAL ORDER AND DECISION

I. Introduction



Julie M. Williams (Williams) appeals a decision of the Department of Health and Human Services (DHHS) denying her claim for benefits provided by the Aged, Blind, and Disabled (ABD) Program. Jurisdiction for this appeal is in the Administrative Law Judge Division. S.C. Code Ann. § 44-6-190 (Supp. 1998). The DHHS decision is vacated and the matter remanded for reconsideration in light of the matters discussed in this decision.



Williams argues she is totally disabled and entitled to Medicaid benefits. Medicaid "is intended to enable each state . . . to furnish medical assistance on behalf of . . . permanently and totally disabled individuals, whose income and resources are insufficient to meet the cost of necessary medical services." 79 Am. Jur.2d Welfare Law § 38. The hearing officer for DHHS denied Williams Medicaid benefits on the ground that Williams is not disabled. This appeal followed.



When challenged on appeal, the appellate body must decide if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions of the hearing officer are made upon unlawful procedure (see S.C. Code Ann. § 1-23-380(A)(6)(c) (Supp. 1998)) or are clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. (see S.C. Code Ann. § 1-23-380(A)(6)(e) (Supp. 1998). Here, Williams asserts two unlawful procedures were employed to a degree that violated her due process rights. Further, she asserts that the decision below is clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.



II. Issues



1. Was Williams denied the right to due process by the failure of the hearing officer to notify Williams of her right to be represented at the contested case hearing by an attorney or by the failure of the hearing officer to allow Williams the right to cross-examine the vocational evidence used to support the hearing officer's decision?



2. Does substantial evidence support the hearing officer's finding that Williams' fibromyalgia is not "severe," that Williams' impairment does not meet or equal a listed impairment, that Williams' age, education and work experience demonstrate she can engage in "substantial gainful activity" via work that exists in the national economy, and that Williams' addiction to prescription pain relievers is a "contributing factor material to her disability"?



III. Analysis



A. Due Process Considerations



Williams first argues that her rights to due process were violated since she was not notified of her right to be represented by an attorney at the contested case hearing. Second, Williams argues her rights to due process were violated since written vocational evidence was received at the hearing below and that such evidence effectively prevented her from cross-examining the vocational evidence. I find no due process violation in either instance.



1. Representation By An Attorney



In general, for disability cases, notice that the party has a right to retain counsel is required if the evidence establishes that mental difficulties prohibit the party from making a proper presentation. Cullison v. Califano 613 F.2d 55 (4th Cir. 1980). While the record is insufficient to allow a determination on whether Williams suffered from difficulties prohibiting her from making a meaningful presentation of her case, I find that a decision on that issue need not be made since notice was in fact given to Williams. On August 21, 1998, Williams was told she could have an attorney represent her, and she was told to seek legal assistance from Legal Services. Indeed, she did just that. Accordingly, no due process violation has been proven.



2. Right to Cross Examination



All agree that the right to confront and cross-examine witnesses is a fundamental requirement of procedural due process. Huellmantel v. Greenville Hospital System, 303 S.C. 549, 402 S.E.2d 489 (Ct.App.1991). Williams relies upon this fundamental requirement in arguing that her due process was violated by the hearing officer's reliance upon written vocational evidence. Such reliance, she argues, denied Williams the right to confront and cross-examine witnesses and such denial is a violation of due process. I disagree for two reasons.



First, procedurally, Williams may not make such an argument on appeal since she did not object or protest to the introduction of the written evidence at the hearing. Rule 103(a)(1), SCRE; Taylor v Medenica, 324 S.C. 200, 479 S.E.2d 35 (1996) (a contemporaneous objection is required to preserve an issue for appellate review). Clearly, Williams participated in a contested case hearing before the hearing officer with that hearing governed by the contested case provisions of the Administrative Procedures Act. S.C. Code Ann. § 1-23-310(3) (Supp. 1998). In such proceedings the "rules of evidence as applied in civil cases in the court of common pleas shall be followed." S.C. Code Ann. § 1-23-330(1) (Rev. 1986). The rules of evidence under Rule 103(a)(1), SCRE explain that even if an error occurred in admitting evidence, no reversal is warranted if the complaining party failed to make an objection at the time the evidence was entered. Here, no objection was made to the written evidence and thus no reversal can be made.



Second, even if the argument challenging the written evidence could be made at the appellate stage, no due process violation occurred. To prove a violation, Williams must show that the procedure employed failed to provide her with the right to confront and cross-examine witnesses. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).



Here, Williams has not shown a denial of such a right. On the contrary, she was afforded the right to cross examine all witnesses called. The fact that written documentation was received as evidence is not a denial of the right to confront witnesses. Rather, she chose not to subpoena the maker of the written evidence and, in fact, chose to rely upon written documentation herself. Such a methodology is not a violation of due process. See Huellmantel v. Greenville Hospital System, 303 S.C. 549, 402 S.E.2d 489 (Ct.App.1991) (where the hospital was found to have afforded due process when it relied upon "reports from another hospital" and when it gave Dr. Huellmantel the opportunity to cross-examine the hospital's witnesses).



Accordingly, no due process violation has been proven.



B. Substantial Evidence



Williams asserts the decision below is clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. Whether the evidence of no disability is substantial is found by reviewing a four-step "sequential step evaluation" (see 20 C.F.R. 416.920) and by reviewing the evidence supporting whether Williams' addiction to prescription pain relievers was a "contributing factor material to her disability."







1. Four-Step Sequential Evaluation



In this case the evidence is undisputed as to step one of the sequential evaluation since all agree Williams was not engaged in "substantial gainful activity" at the time of the application. Accordingly, step one does not disqualify Williams from being found disabled. However, significant factual disputes arise at each of the remaining three steps.



a. Step 2: Severity of Impairment



The second step asks whether the claimant suffers from a medically determinable "severe impairment" that may reasonably be expected to last for more than one year or to result in death. Here, while the hearing officer found that Williams has a severe impairment related to depression, the hearing officer found Williams' has no severe impairment related to fibromyalgia. Thus, at the second step, Williams advances three positions in this appeal. First, Williams argues that DHHS waived any argument that her fibromyalgia is not a severe impairment. Second, she asserts the substantial evidence demonstrates her fibromyalgia is a severe impairment. Finally, Williams has preserved an issue which asserts that the combination of her two impairments (depression and fibromyalgia) produce a severe impairment and that the combination was not adequately addressed by the hearing officer.



After a review of the record as a whole, I conclude that DHHS has not waived the argument that Williams' fibromyalgia is not a severe impairment. Further, I conclude substantial evidence supports the hearing officer's determination that Williams' fibromyalgia is not a severe impairment. Finally, however, I agree with Williams that the hearing officer failed to make sufficient findings of fact and conclusions of law addressing whether Williams' combination of impairments (depression and fibromyalgia) produce a severe impairment sufficient to warrant a finding of disability.



i. Waiver of Severity



Williams first argues that the hearing officer was required to find a severe impairment due to fibromyalgia since she asserts DHHS waived that issue. I disagree. Rather, Williams mischaracterizes the hearing officer's finding on Williams' inability to return to past work.



The hearing officer does not link Williams' inability to return to her past work with fibromyalgia, as Williams asserts. Instead, the hearing officer links Williams' inability to return to past work with her specific problems with memory, concentration and limited attention span, which the hearing officer associates with Williams' depression.(1) See Findings of Fact 15 and 22. Likewise, Williams also mischaracterizes Findings of Fact # 21. She claims that Findings of Fact # 21 states that her employment with Georgetown Memorial was terminated due to her fibromyalgia. On the contrary, the finding states that her employment was terminated "based on her claim of disability due to fibromyalgia." This language cannot be the basis for a "waiver" of the issue of the severity of Williams' fibromyalgia. Accordingly, DHHS did not waive the issue of whether Williams' fibromyalgia is severe.



ii. Evidence Substantiating Williams' Degree of Severity



Williams also argues that substantial evidence does not support the hearing officer's determination that Williams' fibromyalgia was not a severe impairment. I disagree.



To find that the hearing officer erred in her determination that Williams' fibromyalgia was not a severe impairment, the appellant reviewer must find that substantial evidence does not support such a determination. Substantial evidence is evidence that a reasonable mind, after considering the record as a whole, would accept to support an administrative agency's decision. While the decision must be supported by more than a mere scintilla of evidence, no demand is made on the reviewing body to reweigh the evidence. Rather, in terms of a jury analogy, substantial evidence exists when the court would refuse to direct a verdict because the evidence raises questions of fact for the jury to decide. Furthermore, the possibility that two inconsistent conclusions could be drawn from the evidence does not establish a lack of substantial evidence. Porter v. South Carolina Pub. Serv. Comm'n, 333 S.C. 12, 507 S.E.2d 328, 332 (1998); Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 307 (1981). Finally, to afford meaningful review, the decision below must adequately explain its decision since "it is impossible . . . to review the basis of the orders [where] the reasons underlying the decision are left to speculation." Kiawah Property Owners Group v. Public Service Com'n of South Carolina, 1999 WL 692778, Op. No. 24997 (S.C. Sup. Ct. Filed September 7, 1999) (Shearhouse Adv. Sh. #29 at 1).



An impairment is "severe" if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 416.920(c).(2) In addressing the severity issue, I recognize some support exists for Williams' argument that "significant" means "not meaningless" or "having a meaning." However, "not meaningless" cannot be evaluated in a vacuum. Something may have meaning in one context but not in another context. In evaluating Williams' disability status, the context which confers meaning to Williams' fibromyalgia is the workplace. Accordingly, the severity issue must address Williams' ability to perform basic work activities. See Taylor v. Heckler, 590 F.Supp. 480 (D. Maryland 1984)("Certainly, plaintiff's physical limitations, in terms of work-related limitations of function, are not meaningless . . . The fact that they are vocationally significant is evidenced by the ALJ's conclusion that plaintiff cannot perform a full range of sedentary activity.").



The hearing officer concluded that Williams' pain is not severe enough to prohibit her from performing basic work activities. Substantial evidence supports that conclusion.



In fact, Williams' testimony itself supports such a conclusion, and the hearing officer relied upon that testimony in reaching her conclusion. See Order, pages 10-11. Further, the hearing officer received reports of Dr. Jackson and Dr. Woodward which indicate that Williams is managing her pain with medication and also indicate "5/5 strength[,]" which the hearing officer held to be normal strength.(3)

See Finding of Fact # 8. Additionally, the VR staff physician's (Dr. Weston ) reports demonstrate no evidence of any severe musculoskeletal impairment.



The hearing officer explained her rationale in this regard in that she weighed the conflicting testimony. For example, she stated that she considered the opinion of Williams' treating physician, Dr. Harper, but that her decision was based on all of the "medical evidence and testimony in the Record" and not on his statements alone. As long as the hearing officer gives good reasons for not giving a treating physician's opinion controlling weight, he or she may rely on other evidence in the record to deny disability status. 20 CFR § 416.927(d)(2) & (b)-(e); see also Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (If a treating physician's opinion is contradicted by another physician, the government may reject the opinion if its provides "specific and legitimate reasons" supported by substantial evidence in the record. Even where the treating physician's opinion is not contradicted by another physician, it may be rejected for "clear and convincing" reasons). Further, a treating physician's report may be rejected if it is brief, conclusory and unsupported by medical evidence. Frey v. Bowen, 816 F.2d 508 (10th Cir. 1987); see also Bernal v. Bowen, 851 F.2d 297, 301 (10th Cir. 1988) ("The mere fact that [the claimant] was diagnosed as suffering from major depression does not automatically mean that he is disabled. The ALJ found that [the claimant's] depression 'does not significantly limit his ability to perform unskilled jobs . . . the court finds that the ALJ's decision on this point is supported by substantial evidence.").



In the instant case, while Dr. Harper opined that Williams is totally disabled from her fibromyalgia, the opinion was rather conclusory. Also, Dr. Harper is not the most current treating physician since that position is occupied by Dr. Jackson and Dr. Woodward. Additionally, certain reports generated by Harper may actually support the hearing officer's conclusion that Williams' pain from fibromyalgia is not severe enough to restrict her activities. The report dated May 22, 1997 indicates that Williams is coping with an increase in pain due to being off Duragesic. The report dated September 23, 1997 indicates that Williams is "definitely stable in terms of pain." The report of December 9, 1997 indicates that Williams stopped all her medications and generally felt as well off them as on them.(4)



Certainly, the record contains some evidence supporting a degree of work related restrictions associated with pain. For example, even though most of Harper's treatment records fail to identify specific work related restrictions, two of his reports give some indication as to Williams' work-related abilities. The September 19, 1995 letter indicates that Williams' was unable to travel to classes and unable to sit through them as well. The report of December 4, 1997 indicates "severe limitation of functional capacity; incapable of minimal (sedentary) activity."



Likewise, the reports of Dr. Jackson and Dr. Woodward indicate that Williams should "avoid prolonged standing or sitting with pain as well as to avoid lifting objects greater than 10 pounds." (emphasis added). The indicated treatment in these doctors' reports also advises to "Continue current medication[.]"



While it is true that the hearing officer does not address these specific physician findings in any detail, she obviously discounted them in reaching her conclusion. The evidence allows for such discounting since the hearing officer may have given little weight to Harper's conclusory assertion of "incapable of minimal activity." She may have also concluded that since Williams is managing her pain with medication, the prolonged standing, sitting and lifting referenced by Dr. Jackson and Dr. Woodward are not problems. Likewise, she may have shown good cause for not giving considerable weight to these physicians' indications of Williams' functional limitations by referencing Williams' testimony that she has been able to drive into Georgetown to run errands, do housework, etc.



While the evidence is conflicting and while the specific rationale relied upon by the hearing officer could certainly have been more definitively stated, substantial evidence and a sufficiently expressed rationale are present to support the hearing officer's conclusion that Williams' fibromyalgia is not severe when considered separately from her depression.



iii. Combination of Impairments



Williams asserts multiple impairments in this case. Thus, the government is required to consider the combined effect of all of the claimant's impairments without regard to whether any impairment, if considered separately, would be of sufficient severity. 20 C.F.R. § 416.923; see also Stewart v. Shalala, 1995 WL 549029 (N.D. Illinois 1995)(not reported in F.Supp.); Sloyer v. Sullivan, 1991 WL 259218 (E.D. Penn. 1991). While Williams does not raise this specific issue in her brief, Williams does challenge the hearing officer's findings that her fibromyalgia is not severe and that her depression does not result in a finding of disability. Therefore, reading the clear intent of the positions asserted, the issue of considering the combination of the impairments is properly preserved for review.



Here, the hearing officer made no meaningful, specific findings on the impact of the combination of medication side effects, any breakthrough pain, and depression symptoms on the determination of medical severity. Therefore, on remand, Williams may present evidence to develop this issue further and the hearing officer shall determine whether the combination of impairments produces a sufficient severity to warrant a conclusion of disabled.



b. The Third Step: Comparison To Listings



While a dispute exists over whether Williams' fibromyalgia is a severe impairment, all agree Williams' depression by itself is a "severe impairment." Thus, the third step is reached and that step requires comparing Williams' "severe impairment" to a listing of impairments that are automatically considered to result in disability. In making this comparison, the hearing officer found Williams' impairment did not meet any of the listings and that Williams was not disabled. Williams disagrees. She argues she meets at least one of the listings. Under the record made and the order presented below, a remand is required to enable the hearing officer to present more explicit findings and supporting rationale for this issue.



A hearing officer is required to discuss the evidence and explain why he or she found that the claimant's impairment did not meet or equal a listed impairment. O'Quinn v. Apfel, 61 Soc. Sec. Rep. Ser. 519 (D. Oregon 1999), quoting Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). "'[I]f the [hearing officer] does not state with sufficient clarity the legal rules being applied and the weight accorded the evidence considered,' a court cannot conduct a review that is both 'limited and meaningful.'" Reyzina v. Apfel, 59 Soc. Sec. Rep. Ser. 871 (E.D.N.Y. 1999), quoting Ryan v. Heckler, 762 F.2d 939, 941 (11th Cir. 1985). "[T]he [hearing officer] must 'sufficiently articulate his assessment of the evidence . . . to enable us to trace the path of the [hearing officer's] reasoning.'" Farfan v. Apfel, 58 Soc. Sec. Rep. Ser. 152 (N.D. Ill. 1998), quoting Carlson v. Shalala, 999 F.2d 180 (7th Cir. 1993) and Stephens v. Heckler, 766 F.2d 284 (7th Cir. 1985). "'[A] determination by a [hearing officer] must contain 'a sufficient explanation of his reasoning to permit the reviewing court to judge the adequacy of his conclusion.'" Diaz v. Apfel, 994 F.Supp. 541, 548 (S.D.N.Y. 1998), quoting Rivera v. Sullivan, 771 F.Supp. 1339, 1354 (S.D.N.Y. 1991).



Since the impairment in this case that is being compared to the listing is a mental impairment, the following procedure must be utilized in evaluating the impairment:



1. determine whether a mental impairment exists through use of pertinent signs, symptoms, findings, functional limitations, and effects of treatment normally noted in the mental status examination and psychiatric history. 20 CFR § 416.920a(b)(1).



2. if it is determined that a mental impairment exists, it must then be indicated whether certain medical findings which have been found especially relevant to the ability to work are present or absent:



1. marked restriction of activities of daily living



2. marked difficulties in maintaining social functioning



3. deficiencies of concentration, persistence or pace resulting in frequent failure to complete tasks in a timely manner



4. repeated episodes of deterioration or decompensation in work or work-like settings which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms



§ 416.920a(b)(2) & (3); see also Reyzina v. Apfel, 59 Soc. Sec. Rep. Ser. 871 (E.D.N.Y. 1999).



3. then it is necessary to rate the degree of functional loss resulting from the impairment. The rating of limitation for items 1 and 2 in paragraph 2 above must be done on the following five point scale: none, slight, moderate, marked and extreme



for item 3, the rating must be done on the following scale: never, seldom, often, frequent, and constant



for item 4, the rating must be done on the following scale: never, once or twice, repeated (three or more), and continual



the last two points for each of these scales represents a degree of limitation which is incompatible with the ability to perform the work-related function.



20 CFR § 416.920a(b)(3).



4. next, the severity of the mental impairment must be determined:



if the ratings for items 1 & 2 are "none" or "slight," "never" or "seldom" for item 3, and "never" for item 4, the impairment is not "severe," unless the evidence indicates that there is a significant limitation of the claimant's mental ability to do basic work activities



20 CFR § 416.920a(c)(1).



In the instant case, the psychological consultant found Williams' difficulties in maintaining social functioning to be "moderate." Therefore, the evaluation moves on to the next step.



5. if the mental impairment is "severe," it must then be determined if it meets or equals a listed mental disorder



§ 416.920a(c)(2).



The listed impairment that most closely resembles Williams' depression is listing 12.04 - "Depressive syndrome." VR evaluated Williams' symptoms in light of the criteria listed in 12.04 (Respondent's Exhibit 5). The hearing officer's findings confirm only three of the symptoms listed under "Depressive syndrome" - sleep disturbance, decreased energy, and difficulty concentrating or thinking (Findings of Fact 15, 16, 17, 20, and 22). At least four of the listed symptoms are required before paragraph (A) of listing 12.04 can be satisfied. While the record contains evidence that supports an appetite disturbance with change in weight, as well as feelings of guilt or worthlessness, the hearing officer made no findings on these symptoms. Rather, the reviewing body is required to speculate as to what the hearing officer's determination was as to the fourth symptom. Indeed, at best, an implicit finding was made by the hearing officer that the fourth symptom was not proven.



An appellate review must have findings of fact sufficient to allow review. S.C. Code Ann. § 1-23-350 (Rev. 1986). In deciding the adequacy of factual findings, implicit findings of fact receive particular scrutiny since such facts are devoid of the detail required to determine if the findings are supported by the evidence or to decide if the law has been properly applied to those findings. Able Communications, Inc. v. South Carolina Public Service Com'n, 290 S.C. 409, 351 S.E.2d 151 (1986). Specifically, if a material fact is in dispute, the fact-finder may not rely upon implicit fact finding, but instead the fact-finder must make specific and express findings of fact. Aristizabal v. Woodside-Division of Dan River, 268 S.C. 366, 234 S.E.2d 21 (1977). Here, the satisfaction of the fourth symptom of listing 12.04 was a disputed fact and such a fact cannot be left to mere implicit findings.



The problem with the implicit finding as to the fourth symptom is compounded by a similar lack of fact finding involving limitations in at least two of the four areas of function essential to work. To meet or equal the listing of 12.04 in the Listing of Impairments, it is not enough merely to display four of the symptoms listed in paragraph (A) of 12.04. To satisfy paragraph (B) of 12.04, the claimant's impairment must result in a limitation in at least two of the four areas of function considered by SSA to be essential to work (marked restriction of activities of daily living; marked difficulties in maintaining social functioning; deficiencies of concentration, persistence or pace resulting in frequent failure to complete tasks in a timely manner; and repeated episodes of deterioration or decompensation in work or work-like settings which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms).



To meet either the first or second criteria of paragraph (B) of 12.04, the hearing officer must find a "marked" level; for the third criterion, the hearing officer must find that it occurs "frequently;" and for the fourth criterion, the hearing officer must find "repeated" (three or more) episodes. O'Quinn v. Apfel, 61 Soc. Sec. Rep. Ser. 519 (D. Oregon 1999).



In Findings of Fact 18, the hearing officer states that Petitioner has a moderately severe mental impairment which does not meet or equal a listed impairment. Although she does not elaborate further in that finding of fact, it immediately follows Findings of Fact 17, which states that "she can follow simple instructions, concentrate and complete routine tasks at a slower pace[.]" Findings of Fact 18 also precedes Findings of Fact 19, which states that "[d]espite her symptoms of depression, the Petitioner retains the ability to perform simple tasks for two or more hours with no special supervision. She can accept supervisory feedback, make work related decisions, use public transportation (if available to her), and meet basic standards of hygiene and safety." Finally, Findings of Fact 23 states "The Petitioner still retains the ability to perform light or sedentary work requiring simple, unskilled, repetitive tasks, which require little or no contact with the public."



These findings of fact seem to address item 3 of the four areas of function considered by SSA to be essential to work (deficiencies of concentration, persistence or pace resulting in frequent failure to complete tasks in a timely manner). They may also address items 1, 2 and 4, but less obviously so. In short, the hearing officer does not specifically reference the four areas of function and how Williams rated in each.



True, some degree of ratings can be found in the record. For example, a rating is found in Respondent's Exhibit 5 (evaluation by staff psychological consultant Waller). There the evaluator is asked to "[i]ndicate the number of the . . . functional limitations manifested at the degree of limitation that satisfies the listings . . . (The number in the box must be at least 2 to satisfy the requirements of paragraph B in Listings 12.02, 12.03, 12.04, and 12.06 . . . ." Psychological consultant Waller indicated "0" for this inquiry. Although the hearing officer does not reference this document in her order, apparently she relied on the document since she adopts some of its language (see Findings of Fact 19 and page 3 of Respondent's Exhibit # 5 ("Functional capacity assessment")).(5)



Further, it is also true that John Mulkeen's written summary of his evaluation of Williams tends to support the hearing officer's finding that Williams' impairment does not meet or equal a "listed impairment."(6) Mulkeen finds that Williams "is able to relate appropriately and communicate her needs. She is able to follow instructions, concentrate and complete routine tasks at a reasonable pace." This tends to indicate less than "marked" restriction of daily activities, less than "marked" difficulties in maintaining social functioning, less than the degree of deficiencies of concentration, persistence or pace that would result in frequent failure to complete tasks in a timely manner and no repeated episodes of deterioration or decompensation in a work-like setting. However, the hearing officer neither references these criteria nor specifically references John Mulkeen's report.(7) Thus, the rationale of the hearing officer is missing and the reviewing body is left to speculate on what facts and what law were applied.



While the above-referenced lack of specificity is by itself troubling, the most troubling aspect of this issue is the hearing officer's failure to confront the findings of Dr. Loyd. Dr. Loyd's findings supply the fourth criteria needed to satisfy paragraph (A) of 12.04: appetite disturbance. Further, Loyd's findings support two of the needed criteria for paragraph (B) of 12.04: marked difficulties in maintaining social functioning and deficiencies of concentration, etc. resulting in frequent failure to complete tasks in a timely manner. Such an omission in fact finding requires a remand.



A similar omission occurred in Reyzina v. Apfel, 59 Soc. Sec. Rep. Ser. 871 (E.D.N.Y. 1999). In that case, the ALJ apparently favored the opinion of one physician over another, but never expressly referenced the favored physician or his report. The District Court found that it was unable to determine whether the ALJ's finding that the claimant's impairment did not meet or equal a listed impairment was supported by substantial evidence since the record lacked a "reasoned explanation for the ALJ's determination . . . ." Likewise, in Farfan v. Apfel, 58 Soc. Sec. Rep. Ser. 152, the District Court found that it was not in a position to rely upon the Psychiatric Review Technique Form completed by the state agency physician, even thought it was part of the record, because the ALJ never cited this report.



In the instant case, the hearing officer's reference to the evidence upon which she relies and the rationale for her decision are simply too vague. Under applicable social security case law and South Carolina case law (Kiawah Property Owners Group v. Public Service Com'n of South Carolina, 1999 WL 692778, Op. No. 24997 (S.C. Sup. Ct. Filed September 7, 1999) (Shearhouse Adv. Sh. #29)), this matter must be remanded. On remand the hearing officer shall explain her reasoning, give specific reference to the evidence on which she relies, and explain how the evidence relied upon applies to the specific criteria under paragraphs A & B of impairment listing 12.04.



c. The Fourth Step: Residual Functional Capacity



Since the hearing officer found Williams did not meet the listings of the third step, a fourth step was required to decide if the severe impairment should result in a classification of disabled. In the fourth step, the claimant's age, education and work experience are considered to determine whether any "substantial gainful activity" (i.e., work) exists in the national economy in which the claimant can engage. This step, known as the evaluation of an individual's "residual functional capacity," requires evaluating what the individual can do in light of her impairment, age, education, and work experience. In conducting this evaluation, previous work done by the individual is considered. If the individual is deemed unable to engage in her previous work, then a determination is made on whether any other work opportunities exist in the national economy that would be suitable for the claimant based upon her impairment, age, education, and work experience.



A factual dispute exists in the fourth step as well. While all agree Williams is unable to engage in her previous work as a licensed practical nurse or waitress, Williams disputes the hearing officer's finding that work which Williams is capable of performing exists in the economy. Indeed, Williams asserts that DHHS erred by not producing a vocational expert to testify as to the existence of jobs in the economy. I agree with Williams and find that a remand is required on this issue as well.



If, as is the case here, a claimant proves she cannot go back to past relevant work, fact-finding must be made on the existence of work in the economy that can be performed by the claimant. Grant v. Schweiker, 699 F.2d 189 (1983). Facts to be found surround a two-pronged test which asks whether (1) the claimant, given her age, education, and work experience, has the capacity to perform a specific job and (2) whether that specific job exists in the national economy. McLain v. Schweiker, 715 F.2d 866 (4th Cir. 1983); Taylor v. Weinberger, 512 F.2d 664 (4th Cir. 1975); see also Phillips v. Harris, 488 F.Supp. 1161, 1166-67 (W.D. Va. 1980). The hearing officer must make factual findings addressing this test.



To find that the claimant has the capacity to engage in specific jobs, a vocational expert is needed unless the conclusion that a claimant can engage in certain jobs is within the common knowledge and experience of ordinary men. McLamore v. Weinberger, 538 F.2d 572, 575 (4th Cir. 1976).(8) In McLamore, the claimant was young and had a relatively mild back condition. The ultimate conclusion in that case, supported by the citation of jobs from the South Carolina Employment Projections, was that McLamore could engage in a number of light manual and semi-skilled jobs. The court found that such a conclusion was within the common knowledge and experience of ordinary men, and therefore required no substantiation by a vocational expert. Under the McLamore facts, the court found that "[g]iven the claimant's age, education, relatively minor [back] injury and the jobs available in the South Carolina economy for men of [the] claimant's attributes," the Secretary produced adequate supporting evidence for the denial of disability status.(9)

In the instant case, Williams has a mental impairment involving concentration problems, and she suffers side effects from her medications. Accordingly, the hearing officer must make explicit fact finding if she chooses to reach a conclusion unsupported by vocational expert testimony. See McLain v. Schweiker, 715 F.2d 866 (4th Cir. 1983) (The presence of a vocational expert is particularly appropriate in a case involving a nonexertional disability.).



Here, no explicit fact finding is presented. Rather, merely listing job titles without a description clarifying the nature of the job leaves an inadequate record for review. See Decker v. Harris, 647 F.2d 291, 298-99 (2d Cir. 1981). Further, the fact finding does not establish that the specific jobs listed by VR exist in sufficient numbers in the national economy.(10) Such a determination is required because isolated jobs that exist only in very limited numbers in relatively few locations outside of the region where the claimant lives are not considered "work which exists in the national economy." 20 C.F.R. § 416.966. Accordingly, a remand is required so that the hearing officer may reconvene the hearing in this matter to receive additional evidence on jobs allegedly suitable for Williams. In addition the reconvened hearing shall receive evidence on the extent to which those jobs exist in the economy.





2. Addiction To Prescription Pain Relievers



Williams argues the hearing officer inappropriately found that Williams' addiction to prescription pain relievers was a "contributing factor material to her disability." I am unable to decide this issue since the findings of the hearing officer are too non-specific and the rationale too vague to allow a proper review of the matter. Accordingly, a remand is required on this issue as well.



The hearing officer concluded that Williams' "addiction to narcotics is a contributing factor material to this disability decision . . . ." However, the hearing officer gave no explanation for this conclusion. An explanation is critical since "[a]n individual shall not be considered to be disabled for purposes of this subchapter if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the . . . determination that the individual is disabled." See 42 U.S.C.A. § 423.



The analysis required of the hearing officer on the issue of determining whether addiction to narcotics amounts to a contributing factor material to a disability decision is fairly straight forward. The applicable regulations explain that "[t]he key factor we will examine in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability is whether we would still find you disabled if you stopped using drugs or alcohol. . . . In making this determination, we will evaluate which of your current physical and mental limitations . . . would remain if you stopped using drugs or alcohol and then determine whether any or all of your remaining limitations would be disabling." 20 C.F.R. § 416.935(b)(1) & (2). Thus, to evaluate which limitations would remain if Williams stopped using the medications, fact-finding is needed based on Williams being examined or observed in a drug-free state or the testimony of experts presented to establish what Williams' condition would be in a drug-free state.



Here, no supporting findings of fact and no rationale have been identified by the hearing officer to explain what condition Williams would be in if in a drug free state. On the contrary, at page 11 of the order, the hearing officer states "it is not possible to determine whether [Williams'] low energy level and problems with concentration, memory and short attention span are the results of fibromyalgia, depression, or the side effects of the medications themselves" (emphasis added).



For purposes of development of this issue on remand, I note several pertinent aspects of the evidence presented thus far. For example, the evidence in the record can be read to indicate that Williams' pain from the fibromyalgia would be greater if she were not taking the Oxycontin she is currently taking. (Records of Dr. Harper, Dr. Jackson and Dr. Woodward). Indeed, such a finding of fact could change the analysis of whether Williams' fibromyalgia is a "severe" impairment.(11)

Even DHHS admits that Williams' fibromyalgia was found not to be severe "primarily due to the fact that is [sic] was being relatively well-controlled with medication[.]" (Brief of DHHS, page 7). Also, the reports of Dr. Jackson and Dr. Woodward indicate that Williams should "avoid prolonged standing or sitting with pain as well as to avoid lifting objects greater than 10 pounds." The indicated treatment in these doctors' reports also advise Williams to "[c]ontinue current medication[.]" It logically follows that if Williams is unable to manage her pain without her current medications, albeit addictive, then her capacity to perform basic work activities will be diminished without them. See 20 C.F.R. § 416.929(c)(4).



Further, I note that because Williams' pain from the fibromyalgia may be greater if she were to stop taking the pain medication, possibly the limitations resulting from the pain would be disabling. (See Hearing Transcript, page 36, lines 10-18). Thus, on remand, the hearing officer should decide whether such a conclusion is warranted and, if so, then decide if that conclusion negates the hearing officer's original conclusion that Williams' addiction to narcotics would be a contributing factor material to a determination of disability (but for 42 U.S.C.A. § 423).(12)



Finally, I also note that Dr. Harper's March 26, 1998 report indicates that admitting Williams to the hospital for drug withdrawal would "not solve the basic problems that are going on in the background here." While this statement is somewhat vague, on remand the hearing officer shall consider the statement in deciding whether Williams would have disabling limitations after discontinuing her addictive medications.



In summary, since both the findings of fact and the rationale are insufficient for a proper review of the hearing officer's conclusion that Williams' addiction to narcotics would be a contributing factor material to a determination of disability, that issue is also remanded.



IV. Order



The order of the hearing officer is vacated and this matter remanded for reconsideration consistent with the instructions identified in this decision.



AND IT IS SO ORDERED





______________________

RAY N. STEVENS

Administrative Law Judge



Dated: October 29, 1999

Columbia, South Carolina

1. Even if these symptoms could be associated with fibromyalgia, the hearing officer made no findings associating them, and in fact, characterizes fibromyalgia as "primarily a pain disorder." The hearing officer also states "it is not possible to determine whether [Williams'] low energy and problems with concentration, memory and short attention span are the results of fibromyalgia, depression, or the effects of the medications themselves." (Order, page 11).

2. Basic work activities include walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling, capacities for seeing, hearing and speaking, understanding, carrying out and remembering simple instructions, use of judgment, responding appropriately to supervision, co-workers and usual work situations, and dealing with changes in a routine work setting. 20 C.F.R. § 416.921(b).

3. In its brief, DHHS admits that Williams' fibromyalgia was found not to be severe "primarily due to the fact that is [sic] was being relatively well-controlled with medication[.]" See page 7 of Brief of DHHS.



The side effects of medications which cause or contribute to functional limitations must be taken into consideration in determining whether an impairment is severe. 20 C.F.R. § 416.924c(c). The hearing officer acknowledges that all of the medications Williams is currently taking cause drowsiness, dizziness, and lightheadedness. However, despite these side effects, the hearing officer concludes that Williams retains the ability to perform light or sedentary work requiring simple, unskilled, repetitive tasks which require little or no contact with the public.

4. However, the report of 6/24/97 indicates a severe withdrawal reaction after stopping a certain medication.

5. It also appears that Dr. Waller never examined Williams. Therefore, his opinion, by itself, cannot be the basis for the hearing officer's decision. See Lester v. Chater, 81 F.3d 821 (9th Cir. 1995) (The opinion of an examining physician who examines but does not treat the claimant, is entitled to greater weight than the opinion of a non-examining physician, and if uncontradicted, may only be rejected for "clear and convincing" reasons. The opinion of a non-examining physician cannot by itself constitute substantial evidence to justify rejection of either a treating or an examining doctor's opinion.); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (The non-examining physician's opinion may constitute substantial evidence when it is supported by, and consistent with, other evidence in the record.).

6. Although it is not clear, it appears that Mulkeen is a psychologist. Mulkeen administered three objective written tests for Williams. His evaluation summary seems to be based on these tests as well as his interview with Williams.

7. The hearing officer merely makes a general reference to Respondent's Exhibit 4, which includes the reports of Dr. Harper, Dr. Loyd, and John Mulkeen.

8. In McLamore, the court specifically stated that only the claimant's capacity to perform an alternate job was at issue; implying that whether such a job was shown to exist in the national economy was not at issue:



[O]nce McLamore established his prima facie case, the burden of going forward shifted to the Secretary. The Secretary shoulders a two-fold burden under 42 U.S.C. § 423(d)(2)(A) First, he must show that claimant, considering his age, his education, his work experience, his skills and his physical shortcomings, has the capacity to perform an alternate job. Second this job must be shown to exist in the national economy. Only the first prong is at issue here.





See also Taylor v. Weinberger, 512 F.2d 664 (4th Cir. 1975).

9. It is curious that the court referenced jobs available in the South Carolina economy since it expressly stated earlier in the opinion that only prong 1 of the government's burden (claimant's capacity) was at issue.

10. In drafting the medical-vocational rules, the federal government used several resources to support its administrative notice of the existence of certain jobs in the national economy. See Decker v. Harris, 647 F.2d 291, 297 (2d Cir. 1981). Not all of those resources were used in the instant case since the medical-vocational rules were not used. Therefore, the accuracy of taking administrative notice of the jobs listed by VR as existing in the national economy is not equivalent to that employed under the medical-vocational rules.

11. As to Williams' depression impairment, it is difficult to tell from the evidence in the record the true origins of Williams' depression symptoms (organic, fibromyalgia/situational, or side effects of medications). Therefore, it difficult to tell whether her depression would remain were she to discontinue the medication to which she is addicted.

12. Notably, the side effects of medications which cause or contribute to functional limitations must be taken into consideration in determining whether an impairment is severe. 20 C.F.R. § 416.924c(c). This regulation lends support to the proposition that a claimant's addiction to the medications prescribed for a claimed impairment can not fall within the scope of 42 U.S.C.A. § 423.


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