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In Blades, the ALJ rejected the examining psychologist's finding that the claimant had a severe mental impairment at step two, and did not move forward to step three.
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Civil Action No. 3:01-CV-2483-K
December 12, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), this case has been referred to the United States Magistrate Judge for hearing, if necessary, and for recommendation. Before the Court are "Plaintiff's Opening Brief"/Motion for Summary Judgment, filed August 12, 2002, "Defendant's Response to Plaintiff's Opening Brief and in Support of Cross-Motion for Summary Judgment," filed October 4, 2002, and "Plaintiff's Reply Brief," filed October 17, 2002. The Court has reviewed the evidence of the parties in connection with the pleadings, and RECOMMENDS that Plaintiff's Motion for Summary Judgment be GRANTED. The Court further RECOMMENDS that the final decision of the Commissioner be REVERSED, and that the case be REMANDED to the Commissioner for an award of benefits.
I. Background A. Procedural History
The following background information comes from the transcript of the administrative proceedings, which is designated as "Tr."
This is a social security case. Plaintiff Debra H. Blades ("Blades") seeks judicial review of a final decision by the Commissioner of Social Security ("Commissioner"), who denied her claim for disability insurance benefits under Title II of the Social Security Act. Blades filed her application for Title II disability insurance benefits on March 16, 1994, alleging a disability onset date of January 5, 1993. (Tr. 33). Blades based her claim for disability benefits on bronchial asthma. (Tr. 33-48). Blades's application was denied both initially and upon reconsideration. (Tr. 45, 60). She then requested a hearing before an Administrative Law Judge ("ALJ"), (Tr. 64). Following a hearing held on October 2, 1995 (Tr. 400), ALJ Ruth Tentori denied Plaintiff's claim in a decision entered on April 23, 1996. (Tr. 22-23). On July 11, 1997, the Appeals Council denied Plaintiff's request for review, thereby rendering the ALJ's unfavorable decision the final decision of the Commissioner. (Tr. 10). On August 4, 1997, and again on September 29, 1997, the Appeals Council declined to reopen its denial of review. (Tr. 4, 8). Blades then filed a civil action in the United States District Court for the Northern District of Texas, No. 3:97-CV-2621-G, for judicial review of the Commissioner's final decision. (Tr. 477).
Blades was not diagnosed with a potential mental impairment until August 22, 1995. (Tr. 338-54).
On March 15, 1999, United States Magistrate Judge Jane Boyle issued Findings, Conclusions and Recommendation, recommending that the issue of whether the Commissioner improperly analyzed Blades's mental impairments be remanded to the Social Security Administration Office of Hearings and Appeals. (Tr. 495-96). On April 13, 1999, United States District Judge A. Joe Fish adopted Magistrate Judge Boyle's recommendation. (Tr. 474). On April 30, 1999, the Appeals Council remanded Blades's case to the ALJ for further proceedings consistent with the order of the Court. (Tr. 497-98).
In light of Dr. George R. Mount's uncontested psychiatric expert opinion in the record, Magistrate Judge Boyle stated that "summary judgment in favor of [Blades] on this issue is proper and the Court recommends that the case be remanded to the [Commissioner] for further proceedings on this issue." (Tr. 490).
On March 10, 2000, Blades again appeared at an administrative hearing before ALJ Ruth Tentori. (Tr. 452). Blades's mother-in-law, Vella Blades, also appeared to testify in support of Blades's mental limitations. (Tr. 456). On April 24, 2000, the ALJ decided again that Blades did not have a severe mental impairment at step two of the five-step inquiry. (Tr. 446-47). Blades filed exceptions with the Appeals Council in response to the ALJ's decision. (Tr. 430-36). However, the Appeals Council concluded that there was no basis under the regulations to assume jurisdiction over the case, thereby declaring the ALJ's decision as the final decision of the Commissioner. (Tr. 428-29). Blades now appeals the Commissioner's unfavorable decision.
The ALJ also decided again that Blades was not disabled at step four of the five-step inquiry with regard to her asthma.
The case is now before this Court for hearing, if necessary, and for recommendation. Blades contends that: (1) the Commissioner's unfavorable decision is not supported by substantial evidence; (2) the ALJ on remand violated the Court's April 1999 remand order when she rejected the uncontradicted medical opinions of the examining psychologist, Dr. Mount; (3) the ALJ violated the law of the case when she rejected the uncontradicted medical opinions of the examining psychologist, Dr. Mount; (4) collateral estoppel precludes the Commissioner from relitigating whether the ALJ's lay assertions can overcome Dr. Mount's uncontradicted medical opinions; (5) the ALJ erroneously failed to determine the mental demands of Blades's past relevant work as a desk clerk at a motel; and (6) the Court should reverse the Commissioner's final decision and render an award of benefits, or alternatively, reverse and remand the Commissioner's final decision for further administrative proceedings. (P.'s Brief at 1). The Commissioner counters that her unfavorable decision is supported by substantial evidence and relevant legal standards, and therefore must be affirmed. (D.'s Resp. at 3).
B. Factual History
1. Plaintiff's Age, Education, and Work Experience
Blades's date of birth is July 31, 1957. (Tr.33). She completed the twelfth grade. (Tr. 408). Her past work included positions as a motel desk clerk and a maid. (Tr. 68).
2. Plaintiff's Medical Evidence
In her disability report, signed March 11, 1994, Blades listed her disabling conditions as bronchial asthma, chest pain, and shortness of breath. (Tr. 48), In April 1999, District Judge Fish, in adopting Magistrate Judge Boyle's recommendation, did not find error with respect to the ALJ's determination that Blades was not disabled at step four of the five-step inquiry with regard to her asthma. (Tr. 495; P.'s Brief at 3, 5; D.'s Resp. at 3). Therefore, the medical evidence discussed herein is based solely on Blades's mental impairment, as set forth in Magistrate Judge Boyle's March 15, 1999 recommendation. (Tr. 477-96). The Court will now relate the medical evidence of record that bears on the contentions raised by Blades in this appeal.
The ALJ concluded that Blades cannot be found disabled because she is able to return to her past relevant work. (Tr. 446) ("A desk clerk does not have to lift and carry objects that weigh more than 10 pounds and primarily sits behind a desk.").
a. Dr. Mount's Psychological Examination
On August 22, 1995, Dr. George R. Mount performed a consultative psychological examination of Blades. (Tr. 338-54). Although Dr. Mount reported that Blades's remote, recent, and immediate memory is intact, and "that she can do 7 digits forward without error," Dr. Mount also reported that Blades's "psychomotor activity was hypoactive," that "her fund of general knowledge and information is below average," and that her "affect and mood were seen as being depressed." (Tr. 339). Dr. Mount further reported that Blades's "judgment and reasoning were simple, concrete and unimaginative," that her "prognosis is guarded," and that she "is marginally capable of managing funds." ( Id.).
Dr. Mount administered several tests, including a Diagnostic Interview and History, the Wechsler Adult Intelligence Scale-Revised (WAIS-R), the Wide Range Achievement Test-Revised (WRAT-R), the Bender Visual Motor Gestalt Test (BG), the Sentence Completion Test (SCT), the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), and the Beck Depression Inventory (BDI). (Tr. 338). Dr. Mount reported that Blades performed in the "borderline range" on both the BG and WAIS-R. (Tr. 339-40). Specifically, on the WAIS-R, Blades had a Verbal IQ of 82, a Performance IQ of 82, and a Full Scale IQ of 82. ( Id.). On the WRAT-R, Dr. Mount reported that Blades's scores "are somewhat below her reported level of academic achievement." (Tr. 340). Specifically, Dr. Mount noted in his summary that Blades "is currently functioning in the borderline range of intelligence," and that although she completed high school, she "is functioning between the [sic] 5th and 9th grade levels at this time." (Tr. 342). Dr. Mount reported that Blades's score on the BDI, on which Blades reported "feelings of worthlessness and difficulty making decisions," represented a "mild mood disturbance." (Tr. 341). On the MMPI-2, Dr. Mount reported:
Her validity scale configuration indicates that she was somewhat unwilling to admit to common, minor faults and is either more conforming than the norm or wishes to be seen in that light. She also appears to have limited psychological resources to cope with conflicts and stress and is dependent on others for guidance and support. She is evidencing multiple somatic complaints as well as depressive symptoms. She is likely to have an exacerbation of symptoms when stressed and her underlying personality is seen as being passive dependence.
(Tr. 341).
Dr. Mount then diagnosed Blades with late onset dysthymic disorder and dependent personality disorder. (Tr. 341, 346). He also noted that Blades had a global assessment of functioning (GAF) of 60 and borderline intellectual functioning. ( Id.). Dr. Mount summarized:
Mrs. Blades is socially adept [and] was able to interact adequately today. She is able to care for her own personal needs but needs assistance to maintain a residence and to cope with daily activities. She has a poor tolerance for competitive work and does possess the essentials necessary to complete basic tasks. Her prognosis is guarded.
(Tr. 342).
Dr. Mount further reported that Blades had a: (1) fair ability in making occupational adjustments, such as following work rules, carrying out simple job instructions relating to co-workers, dealing with the public, using judgment, interacting with supervisors, dealing with work stresses, functioning independently, and maintaining attention and concentration; (2) poor or no ability in making performance adjustments, such as understanding, remembering and carrying out complex job instructions, and detailed but not complex job instructions; and (3) fair or poor to no ability in making personal and social adjustments, such as maintaining personal appearance, behaving in an emotionally stable manner, relating predictably in social situations, and demonstrating reliability. (Tr. 343-44). Each of the above limitations, Dr. Mount noted, lasted or could be expected to last for 12 months or longer, stating that February 1993 was the earliest date that Blades's depression existed. (Tr. 345).
As opposed to an "unlimited/very good" or "good" ability, a "fair" ability is defined as the "[a]bility to function in this area is seriously limited but not precluded, (i.e. consistent with sheltered workshop but not competitive job placement)." (Tr. 343).
Defined as "[n]o useful ability to function in this area." (Tr. 343).
Finally, Dr. Mount completed a Psychiatric Review Technique Form ("PRTF"), in which he concluded that Blades has an affective disorder and a personality disorder. (Tr. 346, 349, 351). Dr. Mount further noted that Blades's: (1) daily living activities were markedly limited; (2) social functioning was moderately limited; (3) deficiencies of concentration and ability to complete tasks in a timely manner were frequently limited; and (4) episodes of deterioration or decompensation in work or work-like settings were repeatedly limited. (Tr. 353) (emphasis added). Dr. Mount thus concluded that Blades was disabled at step three because she satisfied the requirements of Listing 12.04. (Tr. 349-53).
A standard document used by adjudicators in compliance with regulations. See Soc. Sec. Ruling 96-8p (1996); see also Boyd v. Apfel, 239 F.3d 698, 705 (5th Cir. 2001).
b. Blades's Mother-in-Law's Testimony
At the March 10, 2000 administrative hearing, Blades's mother-in-law, Vella Blades, testified as to Blades's mental impairments. (Tr. 452-73). Upon examination by the ALJ, Vella Blades stated:
Wit: [Blades] was hit by an automobile when she was in first grade at school and she was in a coma for several weeks and she had to learn to do things when she came out of the coma. She had to learn to talk and walk and do all these things again and her mental capacity when she was in school, she was in a special class, and she's only been able to do small physical tasks.
ALJ: You have the school records to support your statement?
Wit: No, I don't. No, I don't. . . . [H]er mother told me before her mother died.
* * * * *
Wit: She calls me to help her make decisions on very small things like when she orders pictures from school for her daughter . . ., She has trouble making decisions about little things. She gets very stressful when I take her . . . to the doctor or I take her anyplace [sic] and if we're in a lot of traffic, she gets so stressful that she gets down in the floor of the car. She just can't stand all of the traffic going on.
(Tr. 457-59).
Blades's attorney, Carl Weisbrod, then examined Blades's mother-in-law.
Q: Okay. And have you during the time period between . . . 1993 when she stopped work and 1997 which was the last date that the judge is considering here, have you had much contact with your daughter-in-law, Debra?
A: Yes.
* * * * *
Q: Okay. Now, was she having any problems performing her work as a desk clerk at the motel?
A: Yes. She would call me and she would have problems if anybody brought a credit card, she'd say, I don't know how to do it. I just don't know how to do it and she had a lot of problems with credit cards.
Q: Okay. Were there many credit cards used at this particular motel? Is this a big motel operation?
A: No. It's a real small motel, but there were people who used credit cards.
Q: And are you saying that every time someone came in with a credit card, she had to call you?
A: Not every time but she called me a lot of the time because she did not understand how to operate the credit card machine and as she took medication for other problems, it exacerbated her ability to operate the machine and to do the work that she was required to do.
Q: Did the problems come more frequently towards the end of her employment?
A: Yes.
Q: Do you know whether or not she actually made mistakes that the employer blamed her for or penalized for?
A: Yes. They penalized her by taking money away from her, taking it out of her salary when she made a big mistake, anytime that she made a mistake on a credit card, it was considered a big mistake.
* * * * *
Q: And has she had what you would call mental limitations, mental impairments during the entire time you've known her?
A: Yes.
Q: Would you describe what your observations of those mental limitations are?
A: She has a hard time learning. She depends on other people telling her what to do, to show her how to do things. She has a fantastic memory about minor details but big decisions, she has a hard time making big decisions. I don't know if I know how to put into words but she depends on me a lot to help her with things and I don't mind helping her because I love her.
Q: All right [sic]. But would she have been able to hold this job as a desk clerk at . . . that motel without your helping her during the time she was holding the job?
A: No. She had to have a lot of help from other people too because the people that managed the motel helped her.
Q: Would she have been capable of going to any hotel and motel and working as a desk clerk?
A: No.
Q: Why not?
A: She couldn't handle the stress. The stress would make her sick, would create problems where she'd have to take more medication, more Prednisone to be able to breathe and it would make her where she just couldn't function.
Q: And how do you know that [is] a fact?
A: I've seen it happen too many times.
Q: Is that what happened that caused her to stop work in January of `93?
A: Right, right. She ended up in the hospital with a severe breathing problem and she couldn't work after that.
Q: And it was not because of physical labor that she was doing that brought on the worsening of her asthma, right?
A: No. It was the stress.
Q: Okay.
A: Stress — at the clinic, they told us that stress was the main factor that caused her to have this problem.
(Tr. 465-68).
3. ALJ's Findings
On April 24, 2000, the ALJ issued another unfavorable decision on Blades's Title II disability insurance application, despite the law of the case as set forth in Magistrate Judge Boyle's recommendation. (Tr. 443-47, 477-96). In relevant part, the ALJ found that the "allegations regarding her limitations are not totally credible for the reasons set forth in the body of the decision." (Tr. 447). The ALJ stated:
However, this Court was not able to find a list of reasons in the body of the ALJ's decision. Rather, the only explanation for the ALJ's unfavorable decision is for what the ALJ claims to be a "lack of evidence" — reasoning that is virtually identical to the ALJ's April 23, 1996 decision. (Tr. 445-46; 19-23).
The record is orphaned of any psychiatric illness and treatment except for the one shot psychiatric evaluation performed by Dr. George Mount and ordered by counsel. No further medical evidence of any sort of psychiatric treatment and/or for her asthmatic bronchitis is shown to the date last insured. The only additional evidence is claimant's mother in law's testimony. . . . This testimony is from an interested party in the case, not a vocational or medical expert and her testimony is not supported by objective evidence such as work records from her employer supporting her statement or claimant getting punished for her mistakes with the credit card machine and getting [a] deduction from her pay as a result. Since the testimony is unsupported, it is not entitled to significant weight. . . . Based on the lack of evidence showing claimant has a severe mental impairment and the lack of functional limitations, it is concluded that claimant does not have a severe [mental] impairment.
(Tr. 445-46) (emphasis added).
Furthermore, the ALJ stated that she "must also consider any medical opinions, which are statements from acceptable medical sources, which reflect judgments about the nature and severity of the impairment and resulting limitations." (Tr. 446). The ALJ stated that she "carefully considered all of the medical opinions in the record regarding the severity of [Blades's] impairment." (Tr. 447). After concluding that Blades's mental impairments were not severe, the ALJ reiterated her April 23, 1996 findings, concluding that because Blades's "medically determinable asthma does not prevent [her] from performing her past relevant work . . . [she] was not under a `disability' as defined in the Social Security Act." (Tr. 447).
The Court now turns to discuss the legal standards that will guide its analysis.
II. Legal Standards
To be entitled to social security benefits, Blades must prove that she is disabled for purposes of the Social Security Act. Leggett v. Chater, 67 F.3d 558, 563-64 (5th Cir. 1995); Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988). The definition of disability under the Social Security Act is "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. § 423(d)(1)(A); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).
The Commissioner utilizes a sequential five-step inquiry to determine whether a claimant is disabled. Those steps are:
1. An individual who is working and engaging in substantial gainful activity will not be found disabled regardless of medical findings.
2. An individual who does not have a "severe impairment" will not be found to be disabled.
3. An individual who "meets or equals a listed impairment in Appendix 1" of the regulations will be considered disabled without consideration of vocational factors.
4. If an individual is capable of performing the work he has done in the past, a finding of "not disabled" must be made.
5. If an individual's impairment precludes him from performing his past work, other factors including age, education, past work experience, and residual functional capacity must be considered to determine if work can be performed.Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991) (summarizing 20 C.F.R. § 404.1520(b)-(f)). Under the first four steps of the inquiry, the burden lies with the claimant to prove his disability. Leggett, 67 F.3d at 564. The inquiry terminates if the Commissioner determines at any point during the first four steps that the claimant is disabled or is not disabled. Id. Once the claimant satisfies his burden under the first four steps, the burden shifts to the Commissioner at step five to show that there is other gainful employment available in the national economy that the claimant is capable of performing. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). This burden maybe satisfied either by reference to the Medical-Vocational Guidelines of the regulations or by expert vocational testimony or other similar evidence. Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987).
"The Commissioner has instituted a corollary procedure [in addition to the five-step sequential evaluation] for determining the merits of mental disability claims." Boyd v. Apfel, 239 F.3d 698, 705 (5th Cir. 2001) (citing 20 C.F.R. § 404.1520a). First, the ALJ is required to determine if the claimant has a medically determinable mental impairment by "record[ing] the pertinent signs, symptoms, findings, functional limitations and effects of treatment contained in [the] case record." 20 C.F.R. § 404.1520a(b)(1). Second, the ALJ must consider the presence or absence of certain medical findings relevant to the claimant's ability to work. 20 C.F.R. § 404.1520a(b)(2). Next, the ALJ must evaluate the degree of functional limitation resulting from the impairment in four areas, which include: 1) activities of daily living; 2) social functioning; 3) concentration, persistence, or pace; and 4) episodes of deterioration or decompensation. 20 C.F.R. § 404.1520a(b)(3). Finally, the ALJ must then determine the severity of the mental impairment under 20 C.F.R. § 404.1520a(c)(1). The ALJ must also attach a PRTF to the administrative decision. 20 C.F.R. § 404.1520a(d).
The Commissioner's determination is afforded great deference. Leggett, 67 F.3d at 564. Judicial review of the Commissioner's findings is limited to whether the decision to deny benefits is supported by substantial evidence and to whether the proper legal standard was utilized. Greenspan, 38 F.3d at 236; 42 U.S.C.A. § 405(g) (West Supp. 1999). Substantial evidence is defined as "that which is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion; it must be more than a scintilla, but it need not be a preponderance." Leggett, 67 F.3d at 564. The reviewing court does not reweigh the evidence, retry the issues, or substitute its own judgment, but rather scrutinizes the record to determine whether substantial evidence is present. Greenspan, 38 F.3d at 236.
The Commissioner's findings are conclusive and must be affirmed if they are supported by substantial evidence and based upon correct legal standards. See 42 U.S.C. § 405(g). However, if the Commissioner's findings are not supported by substantial evidence, 42 U.S.C. § 405(g) permits the reviewing court to modify or reverse the Commissioner's decision with or without remanding the case for rehearing. Id.
The Court now turns to address the merits of Blades's appeal.
III. Analysis
As noted above, Blades contends that: (1) the Commissioner's unfavorable decision is not supported by substantial evidence; (2) the ALJ on remand violated the Court's April 1999 remand order when she rejected the uncontradicted medical opinions of the examining psychologist, Dr. Mount; (3) the ALJ violated the law of the case when she rejected the uncontradicted medical opinions of the examining psychologist, Dr. Mount; (4) collateral estoppel precludes the Commissioner from relitigating whether the ALJ's lay assertions can overcome Dr. Mount's uncontradicted medical opinions; (5) the ALJ erroneously failed to determine the mental demands of Blades's past relevant work as a desk clerk at a motel; and (6) the Court should reverse the Commissioner's final decision and render an award of benefits, or alternatively, reverse and remand the Commissioner's final decision for further administrative proceedings. (P.'s Brief at 1). The Commissioner counters that the ALJ's unfavorable decision is supported by substantial evidence and relevant legal standards, and therefore must be affirmed. (D.'s Resp. at 3).
A. There Remains a Lack of Substantial Evidence in the Record to Support the ALJ's Unfavorable Decision
Substantial evidence "must do more than create a suspicion of the existence of the fact to be established, but `no substantial evidence' will be found only where there is a `conspicuous absence of credible choices' or `no contrary medical evidence.'" Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983) (quoting Hemphill v. Weinberger, 483 F.2d 1137 (5th Cir. 1973)). In other words, an Administrative Law Judge may not substitute her own lay opinion for the opinion of a treating physician whose testimony is uncontroverted. See Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985). With regard to the issue of whether the ALJ improperly analyzed Blades's mental impairments, Magistrate Judge Boyle's March 15, 1999 recommendation specifically stated:
In the instant [case], the ALJ chose to discredit the only psychiatric evidence in the record based on her conclusion that Plaintiff has never undergone any "psychiatric treatment [nor] does she take any psychotropic medication" and that "the only diagnosis of a mental impairment is an evaluation scheduled by claimant's attorney." Tr. 22. Based on this, the ALJ stated that she rejected Dr. Mount's findings, as he "is clearly bending over backwards to establish disability at the behest of claimant's counsel." Tr. 22. Accepting the ALJ's argument as true, that she chose to reject Dr. Mount's findings as biased, support for her determination of Dr. Mount's credibility must exist in the record. Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985). No such support exists. The record is bare of any evidence that Dr. Mount's findings were biased, other than the fact that Plaintiff did not have a history of psychiatric problems or a history of treatment for psychiatric problems, and did not have a psychiatric evaluation prior to the instant suit. C.f., Grimmett v. Heckler, 607 F. Supp. 502, 503 (S.D. W. Va. 1985) (given the absence of any psychiatric evidence to support his decision, the ALJ's decision to discredit psychiatric evidence based on his conclusion that the plaintiff had no history of psychiatric problems and was never treated for psychiatric problems was in error). . . . The Court recognizes the ALJ's concern with the credibility of Dr. Mount, and the accuracy and validity of the testing he performed, however, it is legal error, given the presence of Dr. Mount's uncontested psychiatric expert opinion in the record, for the ALJ to reject that opinion and instead substitute her own conclusions. Zorilla v. Chater, 915 F. Supp. 662, 669 (S.D. N.Y. 1996); Davis v. Chater, 952 F. Supp. 561, 566 (N.D. Ill. 1996); Grimmett v. Heckler, 607 F. Supp. 502, 503 (S.D. W. Va. 1985). Accordingly, summary judgment in favor of [Blades] on this issue is proper and the Court recommends that the case be remanded to the Secretary for further proceedings on this issue.
(Tr. 489-90) (emphasis added).
The facts in Davis v. Chater, which Magistrate Judge Boyle cited in her recommendation, are analogous to Blades's case. In Davis, the District Court for the Northern District of Illinois held that it was error for the ALJ to "reject the opinions of an examining psychologist — which is the only evidence of a mental impairment in the record — without adequate justification for doing so." Davis, 952 F. Supp. at 565. Specifically, the Davis Court stated:
952 F. Supp. 561, 566 (N.D. Ill. 1996).
If [the ALJ] had any questions as to the accuracy of the report and conclusions [of Plaintiff's treating psychologist, Dr. Kerr], he could have postponed the hearing and referred Plaintiff for another psychological evaluation and/or retained a medical expert to give testimony at the hearing regarding the report. Had such a procedure been followed and had another medical expert arrived at the same conclusion regarding Dr. Kerr's report and conclusions as did the ALJ, the ALJ could have credited the testimony of the medical expert over the opinions of Dr. Kerr and achieved the same results. The ALJ's error was in rejecting the report and conclusions of Dr. Kerr — which is the only medical evidence in the record on the mental impairment issue — and substituting his own medical opinion for that of Dr. Kerr. While this would have been permissible had there been conflicting reports on the issue, from which the ALJ would have had to choose, it was impermissible where Dr. Kerr's report constituted the only evidence on the mental impairment issue.Davis, 952 F. Supp. at 566 (citing Kuwahara v. Bowen, 677 F. Supp. 553, 561 n. 11 (N.D. Ill. 1988)) (emphasis added).
Here, Blades's mother-in-law's testimony at the March 10, 2000 administrative hearing is the only distinguishing characteristic from the initial October 2, 1995 hearing. In her April 24, 2000 decision, the ALJ even admitted that "[t]he only additional evidence is claimant's mother in law's testimony." (Tr. 445). However, contrary to the ALJ's assertion that because "the testimony is unsupported [by objective evidence such as work records from Blades's employer supporting her statement of claimant being punished for her mistakes with the credit card machine and getting deduction from her pay as a result], it is not entitled to significant weight", Blades's mother-in-law's testimony is evidence which supports the uncontested objective medical findings of Dr. George Mount. The ALJ's April 24, 2000 decision then gave virtually the same reasoning as did the ALJ's April 23, 1996 opinion, stating:
The Appeals Council remanded this case to reevaluate the mental condition of claimant. Upon filing her application, claimant alleged asthmatic bronchitis as her sole impairment. The record is orphaned of any psychiatric illness and treatment except for the one shot psychiatric evaluation performed by Dr. George Mount and ordered by counsel. Nor further medical evidence of any sort of psychiatric treatment and/or for her asthmatic bronchitis is shown to the date last insured. . . . Based on the lack of evidence showing claimant has a severe mental impairment and the lack of functional limitations, it is concluded that claimant does not have a severe impairment.
"Established policy provides that information may be obtained from family members, friends, and former employers regarding the course of the claimant's condition." Ivy v. Sullivan, 898 F.2d 1045, 1049 (5th Cir. 1990) (citing Soc. Sec. R. 83-20 at 112).
"The undersigned notes that when the claimant filed her application for benefits, she made no mention of any mental impairments. [Blades] has never undergone psychiatric treatment and the only diagnosis of a mental impairment is an evaluation scheduled by claimant's attorney to establish disability under the Social Security Act." (Tr. 22).
(Tr. 445-46).
As such, Dr. Mount's psychiatric expert opinion remains uncontested, just as it did when Magistrate Judge Boyle recommended that this case be remanded for reconsideration on this exact issue more than four years ago.
The Court agrees with the Commissioner that "the ALJ was not required to call a medical expert to testify," see 20 C.F.R. § 404.1527(f)(2)(iii), and "the remand order [did not] require the ALJ to send Plaintiff for additional consultative examinations." (D.'s Resp. at 5). However, without any evidence to contradict Dr. Mount's findings, it remains legal error for the ALJ to reject those findings "where [Mount's] report constituted the only evidence on the mental impairment issue." Davis v. Chater, 952 F. Supp. at 566.
1. No Contrary Medical Evidence Exists in the Record in Support of the ALJ's Finding that Blades Does Not Have a Severe Mental Impairment
Blades contends that she satisfies step two of the inquiry because there is no contrary evidence in the record to refute Dr. Mount's original findings that she has a severe mental impairment. (P.'s Brief at 11-15). At step two of the inquiry, Blades must "establish aphysical [or mental] impairment lasting at least twelve months that prevents her from engaging in substantial gainful activity." Hames v. Heckler, 707 F.2d 162, 165 (5th Cir. 1983) (citing Wilkinson v. Schweiker, 640 F.2d 743 (5th Cir. 1981)). In the Fifth Circuit, "[a]n impairment can be considered as not severe only if it is a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience." Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985) (quoting Estran v. Heckler, 745 F.2d 340, 341 (5th Cir. 1984) and citing Martin v. Heckler, 748 F.2d 1027, 1032 (5th Cir. 1984); Davis v. Heckler, 748 F.2d 293, 296 (5th Cir. 1984)). Additionally, when the record is absent of any objective medical evidence indicating that Plaintiff has suffered from a disability, Plaintiff has failed to meet his burden. Hames, 707 F.2d at 166 ("The record demonstrates an absence of objective medical evidence indicating that Plaintiff suffered such disabling back pain.").
Here, unlike the factual situation in Hames, Blades has met her burden because she has presented uncontested medical evidence indicating an affective disorder under section 12.04. Contrary to the ALJ's contentions, the record does contain objective medical evidence indicating that Blades satisfies step two of the inquiry. Dr. Mount reported that "the above limitations [of borderline depression and dependent personality disorder] lasted or [could] be expected to last for 12 months or longer." (Tr. 345). As for the earliest date the same level of severity existed, Dr. Mount reported that Blades's depression began in February 1993. ( Id.). Specifically, Dr. Mount noted that Blades merely had a "fair" ability (one step above the lowest rating of "poor to none") to make occupational adjustments. (Tr. 343). As opposed to "very good" or "good," "fair" is defined as "seriously limited but not precluded." ( Id.). However, Dr. Mount subsequently noted that Blades's ability to understand, remember and carry out both complex and detailed instructions was "poor to none." (Tr. 344). "Poor to none" is defined as "[n]o useful ability to function in this area." (Tr. 343). Blades's ability to carry out simple instructions even received a "fair" rating. ( Id.). Additionally, Blades's mother-in-law testified that Blades would become extremely stressful in certain situations, which caused Blades to become ill. (Tr. 466-68). Specifically, Blades frequently had problems operating the credit card machine at the hotel, and would become so stressful during traffic that she would lie down in the floor of the car. (Tr. 459, 466-68). Blades would often call her mother-in-law when she experienced problems at work, saying "I just don't know how to do it." (Tr. 466).
"Based on the lack of evidence showing claimant has a severe mental impairment and the lack of functional limitations, it is concluded that claimant does not have a severe impairment." (Tr. 446).
The ALJ's reference to an attached PRTF "indicat[ing] the functional limitations caused by a mental impairment" is irrelevant in light of Dr. Mount's PRTF, which is the only medical evidence in the record pertaining to Blades's mental impairment. (Tr. 446). Despite Dr. Mount's PRTF, in which he found marked, moderate, frequent and repeated episodes in the various categories of functional limitation (Tr. 353), the ALJ reported in her attached PRTF that Blades had never or seldom had any functional limitations. (Tr. 450-51). In other words, the ALJ completely ignored Dr. Mount's PRTF and decided instead to substitute her own PRTF in the record. (Tr. 448-51). The ALJ's mere attachment of a PRTF, however, does not create contrary medical evidence because the information contained within the ALJ's PRTF was not obtained based upon any conflicting medical evidence; rather, it was obtained by the ALJ's lay opinion. Again, this is legal error. Therefore, substantial evidence does not exist to support the ALJ's finding that Blades does not have a severe mental impairment.
2. No Contrary Medical Evidence Exists in the Record in Support of the ALJ's Finding that Blades Does Not Meet Listing 12.04
Blades contends that she is disabled at step three because Dr. Mount reported that she satisfied the requirements of Listing 12.04. (P.'s Brief at 7). To meet the requirements of Listing 12.04, a claimant must satisfy both the 12.04 A factors and the 12.04 B factors. Boyd, 239 F.3d at 703 n. 8. Here, Blades is disabled on the existing record at step three given Dr. Mount's uncontradicted medical opinions, which show that Blades's condition met the requirements of Listing 12.04. 20 C.F.R. § 404.1520(d),
Section 12.04 defines "affective disorders" as a "disturbance of mood, accompanied by a full or partial manic or depressive syndrome, as evidenced by at least one of the following [12.04 A factors]." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04.
These subsections are as follows:
A. Medically documented persistence, either continuous or intermittent, of one of the following:
1. Depressive syndrome characterized by at least four of the following:
a. Anhedonia or pervasive loss of interest in almost all activities; or
b. Appetite disturbance with change in weight, or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
i. Hallucinations, delusions or paranoid thinking; or
2. Manic syndrome characterized by at least three of the following:
a. Hyperactivity; or
b. Pressure of speech; or
c. Flight of ideas; or
d. Inflated self-esteem; or
e. Decreased need for sleep; or
f. Easy distractability; or
g. Involvement in activities that have a high probability of painful consequences which are not recognized; or
h. Hallucinations, delusions or paranoid thinking; or
3. Bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes (and currently characterized by either or both syndromes); AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Deficiencies of concentration, persistence or pace resulting in frequent failure to complete tasks in a timely manner (in work settings or elsewhere); or
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 (which may include deterioration of adaptive behaviors).
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04.
Specifically, with respect to the 12, 04 A factors, Dr. Mount found that Blades suffers from depressive syndrome characterized by the following: 1) sleep disturbance; 2) decreased energy; 3) feelings of guilt or worthlessness; and 4) difficulty concentrating or thinking. (Tr. 349). With respect to the 12.04 B factors, Dr. Mount found that Blades suffers from the following: 1) marked restrictions of activities of daily living; 2) moderate difficulties in maintaining social functioning; 3) deficiencies of concentration, persistence or pace resulting in frequent failure to complete tasks in a timely manner (in work settings or elsewhere); and 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 (which may include deterioration of adaptive behaviors). (Tr. 353) (emphasis added).
The ALJ's PRTF indicated that Blades exhibited symptoms of the following: 1) an affective disorder under section 12.04; 2) borderline intellectual functioning under section 12.05; and 3) dependent personality disorder under section 12.08. (Tr. 448-51). However, the ALJ found that Blades did not have any functional limitations. (Tr. 450-51). Contrary to Dr. Mount's objective findings, the ALJ reported that Blades suffers from the following: 1) no restrictions of activities of daily living; 2) no difficulties in maintaining social functioning; 3) deficiencies of concentration, persistence or pace resulting in seldom failure to complete tasks in a timely manner (in work settings or elsewhere); and 4) no 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 (which may include deterioration of adaptive behaviors). (Tr. 450-51) (emphasis added).
This Court reiterates Magistrate Judge Boyle's March 15, 1999 recommendation stating that "[t]he record is bare of any evidence that Dr. Mount's findings were biased, other than the fact that Plaintiff did not have a history of psychiatric problems or a history of treatment for psychiatric problems, and did not have a psychiatric evaluation prior to the instant suit." (Tr. 489). Here, the only additional evidence taken into consideration at the March 10, 2000 hearing was Blades's mother-in-law's testimony. Therefore, it remains "legal error, given the presence of Dr. Mount's uncontested psychiatric expert opinion in the record, for the ALJ to reject that opinion and instead substitute her own conclusions." (Tr. 490) (emphasis added). Therefore, substantial evidence does not exist in the record to support the ALJ's finding that Blades does not meet Listing 12.04. B. Remedy Upon Remand — Award of Benefits
The Commissioner responds that the ALJ did not substitute her judgment for that of Dr. Mount's, but merely restated Dr. Mount's findings and pointed out the inconsistencies within his report. (D.'s Resp. at 7, 12). Specifically, the Commissioner now alleges that Blades's IQ of 82 and GAP of 60 is "totally inconsistent with Dr. Mount's conclusions in the PRTF." ( Id. at 7). However, the ALJ did not give these reasons in her April 24, 2000 decision after remand. Unlike the ALJ's April 23, 1996 decision, which clearly stated that Dr. Leslie's (Blades's treating physician) findings were being dismissed because they were "clearly inconsistent with his own treating notes," the April 24, 2000 decision is completely void of any type of "totally inconsistent" or "contradictory" language. Instead, the April 24, 2000 decision merely reflects the same mistake that the ALJ made before — substituting her lay opinion for that of Dr. Mount's medical expertise — despite the Commissioner's claim that she merely "pointed out the inconsistencies in Dr. Mount's medical report." This is an inference that cannot be made from the record and is something which this Court has yet to discover. (Tr. 12).
The problem in this instance is that these "disguised inconsistencies," such as Blades's IQ and GAF scores, were before Judge Boyle in the appeal of the ALJ's April 23, 1996 decision. Moreover, these scores were referenced in the ALJ's 1996 decision, along with Blades's daily activities, which the ALJ also took into account. Therefore, other than the testimony of Blades's mother-in-law, the ALJ had nothing new to consider.
Therefore, the Court need not address Blades's additional issues for review.
Blades also asks this Court to reverse the Commissioner's unfavorable decision and to render an award of benefits. (P.'s Brief at 1). In the Fifth Circuit, "[r]eversal with directions to award benefits is proper when `the [Commissioner] has already considered the essential evidence and it is clear that the cumulative effect of the evidence establishes disability without any doubt.'" Poe v. Comm'r of Soc. Sec., No. 3:01-CV-1992-P, 2003 U.S. Dist. LEXIS 21307, at *23 (N.D. Tex. Sept. 23, 2003) (quoting Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993)).
Here, the issue of whether the Commissioner improperly analyzed Blades's mental impairments has already been remanded in 1999. (Tr. 495). Moreover, the record today stands just as it did in 1999 — completely void of any medical evidence to contradict Dr. Mount's 1995 findings. Blades has waited long enough. This Court finds that it would thus be unconscionable to again remand this nine year old case to the Commissioner for further review. See Randall v. Sullivan, 956 F.2d 105, 109 (5th Cir. 1992) (citing Deters v. Secretary of Health and Human Services, 789 F.2d 1181, 1186 (5th Cir. 1986) and Emory v. Sullivan, 936 F.2d 1092, 1095-96 (10th Cir. 1991)).
IV. Recommendation
In light of the Court's extensive review of the record in this case, the Court hereby finds that there is not substantial evidence to support the ALJ's decision that Blades does not have a severe mental impairment. Furthermore, if the sequential evaluation is continued to its conclusion, the Commissioner's regulations direct a finding of disabled at step three. Therefore, the Court RECOMMENDS that Plaintiff's Motion for Summary Judgment be GRANTED. The Court further RECOMMENDS that the final decision of the Commissioner be REVERSED, and that the case be REMANDED to the Commissioner for an award of benefits.
SO RECOMMENDED.