Chemical Sensitivity and Environmental Illness in Social Security Disability
Modern medicine appears to be only now recognizing that some Social Security disability claimants may be suffering from illnesses related to chemical sensitivities. The courts have not welcomed the new diagnosis and appear to be applying a strict standard in terms of objective proof of such conditions. The following listing of Social Security disability decisions includes the latest cases on chemical sensitivity diagnoses and a survey of some of the older cases discussing the need for a vocational expert in the face of environmental limitations. The cases were combined into one topic to suggest that you approach your case using both perspectives.
Attempt to obtain as much objective evidence as possible regarding the severity of your environmental limitations. Your disability attorney should argue that your limitations constitute a significant nonexertional impairment precluding mechanical application of the Grids and requiring vocational expert testimony to determine the impact of the environmental limitation or chemical sensitivity on your ability to perform other work.
20 C.F.R. §§ 404.1545, 416.945
Some medically determinable impairment(s), such as impairments which impose environmental restrictions, may cause limitations and restrictions which affect other work-related abilities.
20 C.F.R. Pt. 404, Subpt. P, App. 2 (Grids)
Environmental restrictions ordinarily would not significantly affect the range of work existing in the national economy for individuals with the physical capability for heavy work (or very heavy work).
Social Security Ruling 96-9p
SSR 96-9p provides that an “environmental restriction” is an impairment-caused need to avoid an environmental condition in a workplace. According to SSR 96-9p, few occupations in the unskilled sedentary occupational base require work in environments with extreme cold, extreme heat, wetness, humidity, vibration, or unusual hazards. Since all work environments entail some level of noise, restrictions on the ability to work in a noisy workplace must be evaluated on an individual basis. The unskilled sedentary occupational base may or may not be significantly eroded depending on the facts in the case record. In such cases, it may be especially useful to consult a vocational resource. Restrictions to avoid exposure to odors or dust must also be evaluated on an individual basis. The RFC assessment must specify which environments are restricted and state the extent of the restriction, e.g., whether only excessive or even small amounts of dust must be avoided.
Social Security Ruling 85-15
SSR 85-15 provides that although § 204.00 of the Grids provides an example of one type of nonexertional impairment — environmental restrictions — and states that environmental restrictions ordinarily would not significantly affect the range of work existing in the national economy for individuals with the physical capability for heavy work (or very heavy work), numerous environmental restrictions might lead to a different conclusion, as might one or more severe losses of nonexertional functional capacities. The medical and vocational factors of the individual case determine whether exclusion of particular occupations or kinds of work so reduces the person’s vocational opportunity that a work adjustment could not be made.
Where a person has a medical restriction to avoid excessive amounts of noise, dust, etc., the impact on the broad world of work would be minimal because most job environments do not involve great noise, amounts of dust, etc.
Where an individual can tolerate very little noise, dust, etc., the impact on the ability to work would be considerable because very few job environments are entirely free of irritants, pollutants, and other potentially damaging conditions.
Where the environmental restriction falls between very little and excessive, resolution of the issue will generally require consultation of occupational reference materials or the services of a VE.
As explained by the Social Security Administration, and as set forth in POMS DI § 24515.065, “clinical ecology” or “environmental medicine” is an approach to medicine that ascribes a wide range of symptoms to exposure to numerous common substances in the environment. Recent publications by clinical ecologists have suggested that chemicals cause toxic damage to the immune system. However, there is no indication that individuals with a clinical ecology diagnosis of chemical sensitivity have immune deficiency, immune complex disease, autoimmunity, or abnormal functioning of their immune systems.
The principal clinical ecology procedure in diagnosing sensitivity to a chemical or food is the provocation-neutralization technique, in which the patient records symptoms occurring during a 10-minute period immediately following the administration of a test dose of a chemical, food extract, or allergen applied either as a sublingual drop or by subcutaneous or intracutaneous injection. Symptoms are “neutralized” by injecting or applying sublingually a lower dose of the same test substance. The results are based solely on the subjective report of symptoms by the patient.
The POMS further provides that in claims alleging disability due to environmental illness, all of the claimant’s symptoms, signs, and laboratory findings must be considered to determine if there is a medically determinable impairment and the impact of an impairment on the claimant’s ability to work. This evaluation should be made on an individual case-by-case basis to determine if the impairment prevents substantial gainful activity. Id.
In assessing the disability claim of a person suffering from multiple chemical sensitivity disorder (“MCS”), a Massachusetts district court remanded the case, as the Commissioner conceded that the ALJ’s analysis was flawed in that he relied on an unsupported, non-examining physician’s assessment. Creamer v. Callahan, 981 F. Supp. 703, 704(D. Mass.1997).While the ALJ “determined that the Plaintiff’s MCS could not form the basis for SSDI eligibility,” the Commissioner stipulated the SSA “recognizes [MCS] as a medically determinable impairment.” Id. at 704-05.
In Schaal v. Callahan, 993 F. Supp. 85 (D. Conn. 1997), the court found that substantial evidence was not sufficient to support the ALJ’s determination that the claimant’s nonexertional limitations would not significantly compromise her ability to do the full range of sedentary work. Id. at 92. The court stated that despite sufficient evidence of the claimant’s environmental limitations, the ALJ opined that the claimant’s range of work was not significantly compromised, citing no evidence to support this opinion. Since the record supported a finding that the claimant’s ability to perform a full range of sedentary work was in fact significantly diminished, the court remanded the case, ordering the ALJ to obtain testimony from a vocational expert or other similar evidence showing that there are jobs in the national economy that the claimant could do notwithstanding her nonexertional limitations. Id., citing 20 C.F.R. § 416.966(a)(b).
A New York district court noted that despite evidence of the claimant’s environmental limitations (which are nonexertional limitations) as well as borderline intellectual capacity, the ALJ determined that these limitations did not significantly affect her employment opportunities and concluded that the claimant was not disabled “within the framework” of the Medical-Vocational Guidelines. Gallivan v. Apfel, 88 F. Supp.2d 92, 99 (W.D.N.Y. 2000). However, given the ALJ’s findings that these limitations “interfere with her ability to work,” the court found that the record did not support the ALJ’s opinion that such limitations would not significantly compromise her ability to perform a full range of light or sedentary work. Further, given these limitations, the ALJ should have obtained testimony from a VE or received other evidence to determine whether the claimant could perform other jobs which exist in the national economy. Id.
The ALJ erred in mechanically applying the Grids even though he concluded that the claimant had the residual functional capacity to perform work-related functions except for work involving environmental conditions of dust and fumes, and prolonged walking, standing, lifting and carrying. Graham v. Heckler, 580 F. Supp. 1238, 1241 (S.D.N.Y. 1984).
The ALJ erred in relying on the Grids, despite the claimant’s need to avoid the inhalation of lint. Roberts v. Schweiker, 667 F.2d 1143, 1145 (4th Cir. 1981).
A West Virginia court found that substantial evidence supported the finding that a claimant who alleged that she became disabled for all forms of substantial gainful employment in July 1988 due to epilepsy, migraine headaches, fibromyalgia, and sensitivity to chemicals, retained sufficient residual functional capacity to perform nonstressful, light work activity during the three-year period prior to the date of her application. Ordewald v. Barnhart 351 F. Supp.2d 499, 500, 502 (W.D. Va. 2005).
In Clemons, the claimant suffered from a variety of symptoms, including easy fatigueability, short term memory loss, numbness and tingling in the extremities, and inability to apply himself on a sustained basis and a specialist eventually determined that he suffered from neurotoxicity due to chronic exposure to formaldehyde and solvents used in the furniture industry, as well as chronic fatigue immune dysfunction syndrome. Clemons v. Barnhart 322 F. Supp.2d 687, 690 (W.D. Va. 2003). An ALJ awarded benefits with an onset date of August 10, 1997, as of the claimant’s 50th birthday, but the claimant appealed, arguing that he was disabled as of March 18, 1992, when he stopped working. Id. at 688-89. In affirming, the court noted that one of the primary difficulties with this case is that the claimant did not seek treatment from the specialist who diagnosed his condition or from any other physician and it was “reasonable for the Law Judge to determine that the absence of intervening medical care might suggest some overall improvement in plaintiff’s condition.” Id.at 691. The court also observed that “it is not unlikely that plaintiff’s chemical sensitivity would have improved following termination of his exposure to toxic chemicals.” Id.
The Fifth Circuit rejected the claimant’s allegations that she suffered from an environmental illness and that the ALJ failed to accord proper weight to her treating physician, since the evidence of record failed to establish the severity of her condition. Greenspan v. Shalala, 38 F.3d 238-39 (5th Cir. 1994). In so finding, however, the court acknowledged that because “ecological illness” is not accepted widely, and no “yes or no” test apparently exists, direct proof of illness and, hence, disability is hard to produce. The court further agreed that proper circumstantial evidence would be enough to prove disability, but disagreed that the claimant had met her burden. Id.at 239-40.
Although the ALJ referred to the opinions of the claimant’s treating physicians regarding the claimant’s tolerance for dust, fumes, gases and extreme fluctuations of temperature or humidity, he made no findings as to their significance vis-a-vis her exertional capacity. Dellolio v. Heckler, 705 F.2d 123, 128 (5th Cir. 1983). Thus, remand was necessary to determine whether the environmental restrictions rose to the level of nonexertional impairments, or foreclosed the claimant’s access to the full range of occupations encompassed within the regulatory definition of “light work.”
The ALJ improperly relied upon the Grids despite evidence that the claimant’s disabling symptoms appeared to be intensified by exposure to dust, fumes, and excessive heat. Thomas v. Schweiker, 666 F.2d 999, 1004 (5th Cir. 1982).
The Medical-Vocational Guidelines should not be applied where a claimant suffers from an impairment that significantly diminishes his capacity to work but does not manifest itself as a limitation on strength, e.g., where a claimant suffers from a heightened sensitivity to environmental contaminants. Abbott v. Sullivan, 905 F.2d 918, 926 (6th Cir. 1990).
The ALJ’s finding that the claimant’s residual functional capacity for sedentary work was limited to “settings relatively free of atmospheric pollutants and irritants” conflicted with his subsequent conclusion that the claimant’s nonexertional limitations did not significantly limit his capacity for sedentary work. Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987).
The Sixth Circuit held that there was substantial evidence to support the ALJ’s decision that the claimant retained the residual functional capacity, despite severe impairments of chronic fatigue syndrome, chemical sensitivity syndrome, depression, and somatoform disorder, to perform work in the economy.Buxton v. Halter, 246 F.3d 762, 771 (6th Cir. 2001).
In Culbertson v. Barnhart, 214 F. Supp.2d 788 (N.D. Ohio 2002), a claimant with narcolepsy and chemical sensitivity challenged the ALJ’s decision to discredit her treating physician who was a board certified anesthesiologist. Id.at 796. The court rejected the claimant’s argument, finding that the opinion was not supported by the record and noting that the treating physician was not an allergist or other specialist more applicable to her case. Id. While the court rejected the claimant’s argument as to the treating anesthesiologist, the court still remanded the case due to the ALJ’s failure to articulate his basis for rejecting the treating neurologist’s opinion and the ALJ’s failure to include all the claimant’s alleged impairments in hypothetical questions directed to the VE. Id.
A Tennesseedistrict court found that “where a claimant must only avoid concentrated amounts of environmental irritants, the impact on the broad world of work is minimal.” Holland v. Massanari, 152 F. Supp.2d 929, 938 (W.D. Tenn. 2001), citing SSR 85-15. Because the claimant was restricted only from working around concentrated amounts of environmental irritants, the impact upon her ability to perform a full range of light work was slight and the ALJ was correct in using the Grids as a framework for his determination that she was not disabled. Id.
The ALJ properly considered the claimant’s nonexertional limitations, including his sensitivity to air-conditioned environments, in determining that the claimant could perform other work in the economy. Herron v. Shalala, 19 F.3d 329, 336 (7th Cir. 1994).
The ALJ erred in failing to substantiate his finding that most unskilled, sedentary jobs “would not be ruled out by the claimant’s nonexertional limitations imposed by his respiratory impairment” with any authoritative references or other evidence. Warmoth v. Bowen, 798 F.2d 1109, 1112 (7th Cir. 1986). The Seventh Circuit also concluded that a vocational expert’s testimony was necessary and that the ALJ erred “when he in effect summarily took administrative notice that there is a significant number of unskilled, sedentary jobs in the national economy” that the claimant could perform, despite sensitivity to smoke, dust, and perfume. Id.
The ALJ’s determination that the evidence presented by the claimant with respect to her diagnosis of environmental illness was not based on “medically acceptable clinical and laboratory diagnostic techniques” was based on substantial evidence, where the Commissioner’s medical expert testified that “there [was] divided opinion in medicine” about the diagnosis of environmental illness, and that the testing methodology utilized by the claimant’s treating physician (putting drops of various substances under the tongue or injecting them and then recording reactions of the patient that are not visually observable but are reported by the patient to the doctor) lacked scientific validity. Brown v. Shalala, 15 F.3d 97, 99-100 (8th Cir. 1994).
The court rejected the claimant’s argument that the ALJ made insufficient findings with regard to the types of jobs available in “clean environments.” Cronkhite v. Sullivan, 935 F.2d 133, 134 (8th Cir. 1991). In Cronkhite, the court stated that the ALJ properly utilized vocational expert testimony to identify specific jobs available in such environments. The ALJ also properly suggested that the claimant could wear a face mask and gloves while working if desired. Id.
Substantial evidence in the record as a whole supported the conclusion that the claimant’s allergic reactions to common substances (in combination with her other health problems) prevented her from working on a regular basis in the work environments where she was employed in the past. Kouril v. Bowen, 912 F.2d 971, 974 (8th Cir. 1990).
The Eighth Circuit held that the ALJ improperly determined, without the benefit of further testimony such as that of a VE, that the majority of unskilled sedentary jobs in the national economy take place in a pollution-free environment. Asher v. Bowen, 837 F.2d 825, 828 (8th Cir. 1988).
An Iowa district court rejected the claimant’s argument that the ALJ erred in inconsistently determining the claimant’s necessary work environment. Grow v. Bowen, 710 F. Supp. 1275, 1278 (N.D. Iowa 1989). In Grow, the ALJ found that the claimant could do his current part-time work in a dirty work environment on a full-time basis. Alternatively, the ALJ found that restrictions on the claimant’s RFC included the need “to be in a clean environment which entails no extreme temperatures, extreme humidity, or high levels of contaminants.” Id.The court reasoned that the ALJ’s analysis merely indicated a sensitivity to the claimant’s physical ailments in making the RFC determination. Id.
The ALJ erred in relying upon the Grids, where the claimant could not tolerate dust, fumes or heat. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984).
In Nelson v. Apfel, 96 F. Supp.2d 1110 (D. Or. 2000), the court held that the ALJ erred in rejecting the opinion of an examining physician who diagnosed the claimant with porphyria which was activated by exposure to certain material at her workplace and that the claimant was disabled due to her condition. Id. at 1114. The court noted that “[p]orphyria is a hereditary condition which relates to a deficiency of enzymes involved in the metabolic pathway of the production of heme, essential to the human body, and resulting in porphyrin accumulation” and that the “abnormal porphyrins cause mostly neurologic and psychiatric symptoms and is triggered by exposure to porphyrogenic substances.”Id.
The ALJ’s finding that the claimant was able to perform her past relevant work and sedentary work was not supported by substantial evidence where the evidence of record clearly demonstrated that the claimant suffered from the impairments of Chronic Fatigue Syndrome and marked chemical sensitivity which were of such severity as to preclude her from doing her past relevant work and from performing full-time sedentary work. Vogt v. Chater, 958 F. Supp. 537, 548 (D. Kan. 1997).
In Martinez v. Apfel, 17 F. Supp.2d 1188 (D. Colo. 1998), the court noted that environmental restrictions must be considered as nonexertional impairments if they are significantly severe to diminish the number of jobs available to the claimant. Id. at 1193. The court concluded that since the ALJ failed to analyze whether the claimant’s environmental restrictions of limited exposure to extreme cold, wetness, or vibration, imposed a significant decrease in the number of jobs available to the claimant, remand was required. Id.
The ALJ improperly considered the claimant’s environmental restrictions resulting from her asthma condition. Stevenson v. Heckler, 588 F. Supp. 980, 984 (D. Utah1984).
The Eleventh Circuit remanded the matter for further findings as to the extent of the claimant’s environmental limitations and, if necessary, the taking of further evidence as to the existence of other work. Sryock v. Heckler, 764 F.2d 834, 837 (11th Cir. 1985).
In Williams, the court held that the ALJ erred in exclusively using the Medical-Vocational Guidelines and in failing to obtain vocational expert testimony in light of the claimant’s environmental limitations. Williams v. Halter, 135 F. Supp.2d 1225, 1227 (M.D. Fla. 2001). The court specifically held that the ALJ erred in relying on Social Security Ruling 85-15 as this Ruling does not apply when a claimant has both exertional and nonexertional impairments. The court also held that the Commissioner’s more recent reliance on SSR 96-9p was “likewise misplaced,” stating:
[SSR 96-9p] states that ‘few occupations in the unskilled sedentary occupational base require work in environments . . . [involving] unusual hazards,’ such as ‘moving mechanical parts of equipment, tools, or machinery,’ and opines that ‘[e]ven a need to avoid all exposure to these conditions would not, by itself, result in a significant erosion of the occupational base.’ However, like SSR 85-15, SSR 96-9 (sic) overlooks the fact that the Secretary’s own regulation states that approximately 85 percent of the unskilled sedentary jobs existing in the national economy are in the machine trades and benchwork occupational categories. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(a); see also Asher v. Bowen, 837 F.2d 825,828 (8th Cir. 1988) (noting 85% figure in § 201.00(a)); Warmoth v. Bowen, 798 F.2d 1109, 1112 (7th Cir. 1986) (same).
Id. Since the court held that the claimant’s nonexertional impairment prevented him from doing unlimited types of sedentary work, the ALJ erred in not obtaining expert vocational evidence. Id.
Where the ALJ found that the claimant’s capacity to perform the full range of light work was reduced by her inability to do work requiring acute hearing and to work around fumes and dust, and because these nonexertional impairments prevented her from performing all the jobs of which she was exertionally capable, the Grids applied only as a framework. Smith v. Bowen, 826 F.2d 1120, 1123 (D.C. Cir. 1987).