Opinion
CIVIL ACTION NO. 06-10332-RGS.
March 8, 2007
MEMORANDUM AND ORDER ON CROSS-MOTIONS REGARDING THE DECISION OF THE COMMISSIONER
Patricia August seeks review of the decision of the Commissioner of Social Security that she is not disabled within the meaning of the Social Security Act. The Commissioner determined that although August is unable to return to her prior occupation as a nurse, she retains the capacity to do less taxing work. On appeal, August contends that the Administrative Law Judge (ALJ) disregarded or failed to consider the opinions of her treating psychiatrists and psychologist, as well as the opinion of a Social Security Administration (SSA) examiner, that she is disabled as the result of a bipolar disorder. Because the court is unable to discern from the ALJ's opinion the reasons why he rejected the opinion of the treating physicians, the case will be remanded to the Commissioner.
BACKGROUND
August was born in 1953. She is a college graduate and a registered nurse. She lives with her husband and her two sons, ages 23 and 24. One of her sons is severely schizophrenic. August was diagnosed with bipolar disorder in 1989. She claims disability from November 4, 2002, when she quit working as a nurse. She worked briefly as a real estate appraiser after leaving the nursing profession, but left the job because of depression and the stress created by the needs of her mentally ill son, her ailing husband, and her elderly mother. A gambling habit further inhibits her coping skills.August was treated by Dr. Paul Kuniholm, a psychiatrist, until he retired in 2003. She has since been under the care of Dr. Richard Sens, a psychiatrist, and Dr. Norman Weitzberg, a psychologist. The three providers share the opinion that August is totally disabled by bipolar disorder. In April of 2003, Dr. Kuniholm diagnosed August as also suffering from major depression, and concluded that her overall prognosis was guarded. He assigned her a Global Assessment of Functioning (GAF) score of 60. The following month, Dr. Sens found August to have severe limitations in her ability to relate to people, to respond to ordinary work pressures, and to perform multiple tasks. He diagnosed her as suffering from Bipolar I Disorder with symptoms that included "mood swings and irrational, self-destructive behaviorduring manic phases, severe in nature." Dr. Weitzberg also concluded that August was afflicted by bipolar disorder and "was feeling hypomanic, . . . short tempered, . . . [and] her concentration and memory was so bad, she was considering early dementia."
The GAF is a numeric scale (0 through 100) used by mental health clinicians and doctors to rate the social, occupational, and psychological functioning of adults. A score of 60 is at the upper end of the moderate symptoms range.
On February 20, 2003, in connection with her application for disability benefits, August was examined by Dr. Michael Braverman, an SSA consulting physician. Dr. Braverman found that while August was "not currently psychotic or manic," she was "significantly depressed, . . . stressed, dysphoric . . . and overwhelmed." Dr. Braverman concluded that August's "long-standing bipolar disorder has been worsening over the past couple of years . . . and [that he] strongly encouraged consultation with [a] specialist for bipolar to review her medications and see if she should be on mood stabilizers, and [whether] she should be in therapy again."
Two Rhode Island Disability Determination Services (DDS) psychologists, Dr. Nancy Keuthen and Dr. E. Lynch, made pro forma assessments of August based on a review of Dr. Kuniholm's notes. Neither of the examiners reviewed the records of Dr. Sens or Dr. Weitzberg, nor did they address Dr. Braverman's findings. Neither Dr. Keuthen nor Dr. Lynch examined August or consulted with any of her medical providers. They summarized their opinions by completing SSA check-off forms: the Designated Psychiatric Review Technique (PRTF) form and the Mental Residual Function Capacity (MRFC) form. Dr. Keuthen concluded that August suffered from "depressive syndrome." Dr. Keuthen implied that August was malingering out of a desire to stay home and care for her son. Dr. Keuthen acknowledged that August's "affective disorder could limit her attentional capacity and task pacing," but concluded that she could work in an unpressured setting that did not require frequent contact with the public. Dr. Lynch was of the opinion that August suffered from depression "with decreased energy" and had "difficulty concentrating," but that she was capable of dealing with the general public and with the demands of co-workers.
Dr. Lynch's given name appears no where in the record.
August applied for disability benefits on November 26, 2002. Her claim was administratively denied on March 18, 2003. Her request for reconsideration was denied on May 6, 2003. On July 1, 2004, an evidentiary hearing on August's claim was convened by ALJ Barry H. Best. The ALJ took testimony from August and from Carl Barchi, a vocational expert (VE).
Barchi testified that August was unable to perform any past relevant work or to function in any skilled or semi-skilled job. However, in answering a hypothetical posed by the ALJ, he opined that she could perform unskilled jobs such as "assembly work and food preparation." The ALJ then asked Barchi to assume that August's limitations were not "moderate" as the hypothetical assumed, but were instead "moderately/severely limited." Barchi testified that if that were the case, August would be unable to perform even unskilled work.
The ALJ issued a written decision on October 18, 2004. The ALJ found that August was able to perform work at all exertional levels, but possessed the moderate non-exertional limitations assumed in the first hypothetical posed to the VE. The ALJ made the following findings.
1. The claimant meets the nondisability requirements for a period of disability and Disability Insurance Benefits set forth in Section 216(i) of the Social Security Act and is insured for benefits through the date of this decision.
2. The claimant has not engaged in substantial gainful activity since the alleged onset of disability [August claims disability as of November 4, 2002].
3. The claimant's affective disorder is a "severe" impairment, based upon the requirements in the Regulations ( 20 C.F.R. §§ 404.1520(c)).
4. This medically determinable impairment does not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4.
5. The claimant's allegations regarding her limitations are not totally credible for the reasons set forth in the body of the decision.
6. The claimant has the residual functional capacity for work at all exertional levels. She experiences occasional periods of moderate limitations in her ability to maintain attention and concentration. During these periods the claimant is able to maintain concentration and attention sufficient to perform simple work tasks for an eight hour work day, assuming short work breaks on average every two hours. The claimant is able to maintain concentration or attention required for somewhat more complex or detailed tasks occasionally, but not for extended periods of time. The claimant also experiences occasional periods of moderate limitations in her ability to deal appropriately with the public, co-workers and supervisors. During these periods the claimant is able to interact with the public on an occasional basis provided interaction does not require more than exchange of non-personal work-related information or hand-off of products or materials; can work in the presence of co-workers and engage in appropriate occasional social interaction, but cannot work in the context of a work team where work-related interaction with co-workers is constant and physically close; and can deal appropriately with supervisors on an occasional basis (as where subject to normal monitoring and review of work in industrial settings), but not in circumstances in which, because of product considerations or for other reasons, monitoring and intervention by supervisors is physically close and/or frequent or continuous.
7. The claimant is unable to perform any of her past relevant work ( 20 C.F.R. §§ 404.1565).
8. The claimant is an "individual closely approaching advanced age" ( 20 C.F.R. §§ 404.1563).
9. The claimant has "more than a high school (or high school equivalent) education" ( 20 C.F.R. §§ 404.1564).
10. The claimant has no transferable skills from any past relevant work and/or transferability of skills is not an issue in this case ( 20 C.F.R. §§ 404.1568).
11. Considering the types of work that the claimant is still functionally capable of performing in combination with the claimant's age, education and work experience, she could be expected to make a vocational adjustment to work that exists in significant numbers in the national economy. Examples of such jobs include work as a food preparer (137 light unskilled jobs in the Rhode Island economy), and assembler (2,624 light unskilled jobs, 846 medium unskilled jobs).
12. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision ( 20 C.F.R. §§ 404.1520(g)).
13. The claimant has no exertional limitations ( 20 C.F.R. §§ 404.1545).
Based on these findings, the ALJ denied August's benefit application. On December 28, 2005, the Appeals Council declined to review August's case, thereby affirming the decision of the ALJ as the final decision of the Commissioner. 20 C.F.R. §§ 404.955, 404.981. August's appeal is before the court pursuant to 42 U.S.C. § 405(g). On March 1, 2007, the court heard oral argument.
DISCUSSION
The Social Security Act defines disability 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 has lasted or can be expected to last for a continuous period of not less than 12 months. . . .42 U.S.C. §§ 416(i)(1) and 423(d)(1)(A). The Act further provides that:
[a]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, 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. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.42 U.S.C. § 423(d)(2)(A). A "physical or mental impairment" is defined as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). The Act further provides that "[a]n individual shall not be considered under a disability unless he furnishes such medical and other evidence of the existence thereof as the Commissioner may require." 42 U.S.C. § 423(d)(5).
The Commissioner's findings are conclusive if they are supported by substantial evidence. Manso-Pizarro v. Sec'y of Health and Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). "Substantial evidence . . . means evidence reasonably sufficient to support a conclusion. Sufficiency, of course, does not disappear merely by reason of contradictory evidence. . . . [The] question [is] not which side [the court] believe[s] is right, but whether [the ALJ] had substantial evidentiary grounds for a reasonable decision. . . ." Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181, 184 (1st Cir. 1998). The Commissioner's findings, however, "are not conclusive when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts."Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam).
August's principal claim of error on appeal involves the failure of the ALJ to credit the opinion of her treating psychiatrists and psychologist, as well as that of the SSA's own examiner, that she suffers from disabling bipolar disorder. She also objects to the ALJ's adoption of the opinion of a non-treating consultant who did not review her full medical record.
She also contends that the ALJ did not make the required "psychological review technique findings (PRTF) mandated by the Commissioner's rule, 20 C.F.R. 404.1520a(e)(2)," and that he "did not adequately evaluate her symptoms as he is required by considering each of the factors listed under the regulations. 20 C.F.R. 404.1529(c)."
In discussing the treatment records of Drs. Kuniholm, Sens, and Weitzberg, and their uniform opinion that August was incapable of sustaining any meaningful level of employment, the ALJ wrote as follows.
While Paul Kuniholm, M.D., Richard Sens, M.D., and Norman Weitzberg, Ph.D., all treating sources, have indicated that the claimant could not sustain work-related mental activities on a full-time, ongoing basis, these expressed conclusions are unpersuasive, as they are inconsistent with their own findings, and are not supported by the weight of the evidence of record. In a report from April of 2003, Dr. Kuniholm stated that the claimant was capable of only part-time work. However, Dr. Kuniholm also stated that the claimant was oriented, had no evidence of thought disorder, no memory problems, and could take care of her personal needs. Dr. Kuniholm noted that the claimant was preoccupied and distractible, but he did not describe such conditions to be severe, nor did he provide any specific examples. He also noted that the claimant was irritable and withdrawn. Again, he did not describe such conditions to be severe, nor did he provide any specific examples. Furthermore, he indicated that the claimant did not require excessive supervision, could travel in public, and could tolerate mild stress. This is not a description of a person who could not manage the demands of simple undemanding work. Thus, Dr. Kuniholm's own findings do not support his conclusion that the claimant was limited to work on a part time basis.
In a report from May of 2004 prepared for purposes of supporting the claimant's disability claim, Dr. Sens indicated that the claimant had "moderately severe" limitations in her ability to understand, carry out and remember instructions, respond appropriately to supervision and coworkers, and perform complex and repetitive tasks. He also indicated that the claimant had "severe" limitations in her ability to relate to other people, respond to customary work pressures, and perform varied tasks. The undersigned finds Dr. Sens' opinion to be unpersuasive as he did not provide any rationale to support the significant limitations he described. A review of Dr. Sens' treatment notes does not reveal any description of symptoms or signs that would be consistent with the moderately severe to severe limitations he set forth. In August of 2003 Dr. Sens noted that the claimant's mood was stable. In December of 2003 he noted no symptoms or signs of mania. In February of 2004 Dr. Sens stated that the claimant's mood was good. In April of 2004 he stated that the claimant was doing well. Aside from brief periods of irritability and impaired concentration, the treatment notes of Dr. Sens reflect that the claimant's condition was generally stable. Accordingly, the undersigned finds the conclusory functional assessments of Dr. Sens to be unpersuasive.
In a report from May of 2004, Dr. Weitzberg indicated that the claimant could not sustain competitive employment on a full time, ongoing basis. He stated that the claimant experienced severe mood swings from depression to mania, with an inability to concentrate and maintain focus during episodes. These statements were made in a form completed for purposes of determining disability: The undersigned finds Dr. Weitzberg's opinion to be unpersuasive as it is not consistent with his own treatment notes. Treatment notes from August of 2003 through April of 2004 show the claimant's condition to be generally stable and well controlled, without the severe mood swings described in the report from May of 2004. Although there was evidence of some mood swings, the claimant was not noted to experience significant work-related limitations. The claimant was noted to have concentration problems in January of 2004 due to a conflict with her sister. However, by February of 2004 it was noted that her concentration problems were resolving. There was no further references in the notes to concentration problems. The claimant has not required any in-patient hospitalization or crisis intervention since her alleged onset of disability. The severe symptoms and limitations described by Dr. Weitzberg and Dr. Sens are inconsistent with the treatment record.
The ALJ's decision does not reference Dr. Braverman's report nor the report of the second DDS reviewer, Dr. Keuthen.
The ALJ continued that
the medical evidence is more consistent with the conclusions of E. Lynch, Ph.D., the reviewing DDS psychologist, who found that the claimant had only moderate difficulties in maintaining social functioning, concentration, persistence and pace. Dr. Lynch stated that the claimant could concentrate and persist for two hour periods in an eight hour day, with breaks. Dr. Lynch also stated that the claimant could generally get along with others, but would have periods of irritability. The undersigned finds Dr. Lynch's opinion to be persuasive as it is consistent with the limited clinical data as discussed above.
Under SSA regulations, the ALJ should ordinarily give "more weight" to treating physicians' opinions "since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations." 20 C.F.R. §§ 404.1527(d)(2). That being said, the ALJ is not required to give a treating physician's opinion controlling weight. Arroyo v. Sec'y of Health and Human Servs., 932 F.2d 82, 89 (1st Cir. 1991); Rodríguez Pagán v. Sec'y of Health and Human Servs., 819 F.2d 1, 4 (1st Cir. 1987). If a treating physician's opinion is inconsistent with other authoritative evidence in the record, the conflict is for the Commissioner — and not the court — to resolve. Rodríguez v. Sec'y of Health and Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
See also 20 C.F.R. § 404.1527(e)(1) and (2) ("A statement by a medical source that you are "disabled" or "unable to work" does not mean that we will determine that you are disabled. . . . Although we consider opinions from medical sources on issues such as whether your impairment(s) meets or equals the requirements of any impairment(s) in the Listing of Impairments in appendix 1 to this subpart, your residual functional capacity (see §§ 404.1545 and 404.1546), or the application of vocational factors, the final responsibility for deciding these issues is reserved to the Commissioner.").
While the ALJ wrote at some length as to why he believed that the findings of the treating physicians were not inconsistent with his determination that August retained the residual capacity to perform unskilled work, there is only a passing mention in his opinion of the diagnosis of bipolar disorder. The ALJ appears to have adopted the opinion of Dr. Lynch that August was capable of functioning at a normal social level without realizing that she had not reviewed the notes of Dr. Sens and Dr. Weitzberg, nor given consideration to the report of Dr. Braverman. There may be, as the Commissioner argues, substantial evidence in the record that supports the rejection of a diagnosis of recalcitrant bipolar disorder or supports the conclusion that August is able to work despite the disorder. But as the record stands, I cannot determine what the ALJ thought that evidence was or what weight he accorded, if any, to the bipolar diagnosis in reaching his decision.
It was not open to the ALJ to make his own expert medical determination. See Manso-Pizarro v. Secretary of Health and Human Services, 76 F.3d 15, 17 (1st Cir. 1996) ("[A]n ALJ, as a lay person, is not qualified to interpret raw data in a medical record.").
ORDER
For the foregoing reasons, the case will be remanded to the Commissioner for further examination and explanation.
SO ORDERED.