Opinion
Case No. 02-4057-JAR
September 17, 2003
MEMORANDUM ORDER
Plaintiff Patricia Kratochvil brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of Defendant Commissioner of Social Security's denial of her applications for disability insurance benefits under Title II of the Social Security Act and supplemental social security benefits under Title XVI of the Act. According to Plaintiff, Defendant failed to accurately assess the onset date of her mental impairment and erred in assessing the severity of her mental impairments, by failing to accord adequate weight to the opinions of her treating physicians.
42 U.S.C. § 401 et seq.
42 U.S.C. § 1381 et seq.
The Court reverses Defendant's decision because: (1) the ALJ's determination of the onset date is not supported by substantial evidence; (2) the ALJ failed to support his rejection of the opinion of the treating physician that was corroborated by opinions of two consulting physicians and other evidence in the record; (3) the ALJ's determination that there is no evidence of severity ignores such evidence in the record; and (4) the ALJ's determination that there is no evidence of severity is based solely on a finding that Plaintiff did not receive treatment. The Court further orders an immediate award of benefits, because these applications have been pending for nine years, through two administrative hearings tainted with error.
I. Procedural Background
On August 4, 1994, Plaintiff filed applications for Disability Insurance and Supplemental Security Income (SSI) benefits. These applications were initially denied on November 4, 1994, and denied on July 7, 1995, upon reconsideration. A hearing before an Administrative Law Judge (ALJ) on September 5, 1996, resulted in his written decision on July 23, 1997 that was partially favorable to Plaintiff, denying disability benefits but granting SSI benefits. The Appeals Council granted Plaintiffs August 1, 1997 request for review of the ALJ's findings. On September 14, 1999, the Appeals Council remanded the case back to the ALJ for additional development of the record, to obtain evidence from a medical expert clarifying the date of onset of disability. The ALJ held an administrative hearing on December 13, 1999, and on February 15, 2001 rendered a decision unfavorable to Plaintiff. The ALJ determined that March 1, 1995 was the onset date of Plaintiff s mental disability, which effectively denied her disability benefits because her insurance expired on March 31, 1992. The ALJ further determined that there was no evidence that Plaintiffs mental disability was severe. Because the Appeals Council denied review of this decision, it represents Defendant's final decision for purposes of further appeal.
20 C.F.R. § 404.981, 416.1481.
II. Standard of Review
Judicial review under 42 U.S.C. § 405(g) is limited to whether Defendant's decision is supported by substantial evidence in the record as a whole and whether Defendant applied the correct legal standards. The Tenth Circuit has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." In the course of its review, the court may not reweigh the evidence or substitute its judgment for that of Defendant.
See White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001) (citing Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994)).
Id. (quoting Castellano, 26 F.3d at 1028).
Id.
III. Onset of Mental Disability
While the ALJ determined that Plaintiff had a mental disability (depression), he determined that the onset date was March 1, 1995. Plaintiff maintains that the onset of her disability was on or shortly after March 21, 1990, when she sustained an injury to her neck. The evidence in the record included medical records from a number of treating physicians and consulting physicians and experts. One treating psychiatrist, Dr. Holtmeier, gave a retrospective diagnosis that Plaintiff suffered from depression and that it was "reasonable" to consider that the depression stemmed from Plaintiff s injury in 1990. A consulting psychiatrist, Dr. Wurster, concurred with Dr. Holtmeier, and gave a retrospective diagnosis that her depression is "causally related to the initial injury she sustained on March 21, 1990." Consulting psychiatrist Dr. Voth opined that her disability began at the time of her 1990 injury and that her history indicates a continuity of physical disability and depression.
Nevertheless, upon review by the Appeals Council, it found that this record was unclear regarding whether Plaintiffs depression would have prevented her from engaging in work on a sustained basis, prior to March 1, 1995. The Appeals Council remanded and directed the ALJ to utilize the services of a medical expert to assist in determining the inferred date of the onset of disability. The ALJ obtained the services of Dr. Chance, a psychologist, who reviewed the records and opined that there was no objective medical evidence indicating that Plaintiff had any significant mental health condition imposing substantial psychological limitations on her ability to perform work related activities prior to March 1, 1995. Dr. Chance noted that the psychological evaluation by Michael H. Schwartz, Ph.D. on June 3, 1995, provided the first objective findings supporting a conclusion that Plaintiff had a significant mental health disorder. Thus, Dr. Chance opined that the onset date was no earlier than June 3, 1995.
Inexplicably, although relying on Dr. Chance's opinion to establish the onset date, Defendant fixes the onset date at March 1, 1995, three months before Dr. Chance fixes the date. Nothing in the record supports Defendant's choice of March 1, 1995 as the onset date.
In adopting the opinion of Dr. Chance, a reviewing physician, and rejecting the opinions of two consulting physicians who examined Plaintiff, Defendant deviated from the general rule that reports of reviewing doctors are given less weight than those of examining doctors. Moreover, Defendant is generally required to give substantial weight to the treating physician's opinion. In fact, Defendant must give "controlling weight to a treating physician's opinion about the nature and severity of a claimant's impairments, including symptoms, diagnosis and prognosis, and any physical or mental restrictions, if `it is well supported by clinical and laboratory diagnostic techniques and if it is not inconsistent with other substantial evidence in the record.'"
Talbot v. Heckler, 814 F.2d 1456, 1463 (10th Cir. 1987).
Reid v. Chater, 71 F.3d 372, 374 (10th Cir. 1995).
Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir. 1995) (quotation omitted, emphasis added); see also Security Ruling 96-2p (stating that where a treating physician's medical opinion is well-supported and not inconsistent with the other substantial evidence in the case record, it must be given controlling weight).
Defendant must show good cause for rejecting the evidence and opinion of a treating physician and cannot disregard a treating physician's opinion that a claimant is disabled without giving legitimate and specific reasons for doing so. Defendant may specifically and legitimately establish such good cause by showing that a treating physician's report" . . . is brief, conclusory and unsupported by medical evidence" or "not supported by specific findings." When a treating physician's opinion is inconsistent with other medical evidence, Defendant should examine the reports of other physicians to determine whether they outweigh the report of the treating physician. In addition to its consistency with other evidence, the court examines a treating physician's opinion with several factors in mind, including the length of the treatment relationship, the frequency of examination, and the extent to which the opinion is supported by objective medical evidence.
See Goatcher v. United States Dep't of Health Human Servs., 52 F.3d 288, 290 (10th Cir. 1995) (citing Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987)).
Bernal v. Bowen, 851 F.2d 297, 301 (10th Cir. 1988); Castellano v. Sec. of Health and Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994).
Goatcher, 52 F.3d at 290 (citation omitted).
White, 271 F.3d at 1259 (citing 20 C.F.R. § 404.1527(d)(2)).
The ALJ's expressed reasons for rejecting treating psychiatrist Dr. Holtmeier's evidence and opinion in this case were: (1) he did not treat Plaintiff until August 1996, more than a year after the determined onset date of March 1, 1995; (2) a retrospective diagnosis without other evidence of disability is insufficient; (3) his opinion that it was "reasonable" to consider the depression as stemming from the 1990 injury is not a definitive opinion; and (4) he opined about the cause of the depression, but not the onset.
But, these expressed reasons do not show good cause for rejecting Dr. Holtmeier's evidence and opinion. The ALJ discounted the retrospective diagnoses and opinions of Dr. Holtmeier, as well as the two consulting psychiatrists, because none of them had treated Plaintiff prior to the determined onset date of March 1, 1995. Yet, retrospective diagnoses are properly considered in making the disability analysis and may be probative regardless of the time of diagnosis; although "[a] retrospective diagnosis without evidence of actual disability is insufficient," particularly where the disease is progressive. In fact, the Appeals Council remanded the case back to the ALJ to obtain the services of a medical expert who could render a retrospective diagnosis. And, Dr. Chance gave a retrospective diagnosis when he opined that the onset of Plaintiff s disability was no earlier than June 3, 1995. Discounting the opinions of a treating physician and two consulting physicians because they gave retrospective diagnoses is inconsistent with accepting Dr. Chance's retrospective diagnosis.
Potter v. Secretary of Health Human Servs., 905 F.2d 1346, 1348 (10th Cir. 1990).
Manning v. Secretary of Health Human Services, 810 F. Supp. 1220 (D. Kan. 1993).
Potter, 905 F.2d at 1349.
Moreover, the record is replete with other evidence of Plaintiff's mental disability. Although the Appeals Council characterized the record as confusing regarding the onset date, a review of the record demonstrates substantial evidence in the medical record that supports the three retrospective opinions that Plaintiffs disability had an onset at the time of her injury in 1990. This includes subjective evidence from Plaintiffs expressed history and statements to medical practitioners from 1990 to 1994, which the ALJ discounted as ". . . exaggerated, magnified, inconsistent psychogenic symptoms on the part of claimant unconfirmed by objective organic findings." But subjective evidence of a mental disability should not be wholly discounted, for as Dr. Chance acknowledged, depression is "somewhat of a subjective" impairment, and that "objective testing" for depressive symptoms is based on the responses of the person being tested. Curiously, the ALJ adopted Dr. Chance's opinion that the "earliest objective medical evidence" in the record is the June 3, 1995 evaluation by Dr. Schwartz. But, like the retrospective diagnoses of Drs. Holtmeier, Wurster and Voth, Dr. Schwartz's evaluation is based in part on subjective evidence, that is, Plaintiffs self reporting of depressive symptoms, such as "racing thoughts," difficulties concentrating and keeping pace. And, like the other doctors, Dr. Schwartz noted that the depression was associated with Plaintiffs neck injury.
The ALJ dismissively and erroneously rejected the opinions of Drs. Voth, Wurster and Holtmeier with the conclusory statement that there was no objective evidence supporting their retrospective diagnoses and opinions. The ALJ noted that Dr. Patel, who treated Plaintiff in 1990 made no mention of her mental health, and no mention of the effect of any mental health condition on her ability to work. The ALJ further noted that another treating physician, Dr. Carabetta, made no mention of Plaintiff s mental health in his notes of treating her in 1993.
But, the record includes clinical observations and objective evidence from 1990 to 1994 demonstrating Plaintiffs mental disability. In fact, one of the consulting physicians, Dr. Voth, supported his opinion of disability onset at the time of the 1990 injury, by attaching the medical records that provided objective evidence of the disability. This objective evidence includes clinical observations by a nurse on May 21, 1990, that Plaintiff exhibited emotional instability and clinical observations by the same nurse in December 1990 that Plaintiffs emotional instability had deteriorated. An occupational therapist administering a "work hardening program," saw Plaintiff 11 times from January through February 1991. This occupational therapist observed and evaluated Plaintiffs performance of certain work type tasks, and reported that Plaintiff could not complete tasks, had crying spells and mood swings, had difficulty concentrating and had difficulty with short term memory. Dr. Patel, a treating physician, prescribed anti-anxiety medication in November 1990; and the records document that Plaintiff was taking the medication in January and February of 1991. Two other treating physicians, Drs. Arjunan and Whitaker, made clinical observations of Plaintiff's emotional affect and "peculiar head bobbing" movements brought on by her emotional state. Several times in 1991, Dr. Whitaker noted his observations and suspicion that Plaintiff had psychogenic symptoms; in August 1991, Dr. Whitaker opined that Plaintiff had psychogenic symptoms without organic findings.
In short, there was objective evidence in the record of a mental disability in 1990 and 1991 supporting the opinion and evidence of the treating physician; and there were concurring opinions by two consulting physicians who examined Plaintiff. The opinion of Dr. Voth, in particular, referenced and attached numerous medical records of objective evidence. Defendant dismissively rejects Dr. Voth's opinion because he articulated it as "reasonable" to consider the depression as stemming from the injury, he did not identify the date of onset and his opinion was based in part on medical evidence of a physical disability. None of these reasons justifies rejecting Dr. Voth's opinion. A retrospective diagnosis of a mental disability, that is based on a review of periodic evaluations and treatments of a patient, can never fix an onset date with certainty. Dr. Voth, like the other doctors, opined that the mental disability stemmed from the injury and referred to evidence of mental disability in 1990 and 1991. And, the fact that Dr. Voth also considered medical evidence of a physical disability is not fatal to his opinion that there was a mental disability. Dr. Voth is a psychiatrist, but as a physician, is qualified to consider other medical conditions. And, even if he could only render an opinion on mental disability, the Court must consider that part of his opinion and not reject all of it. Thus, Defendant erred in rejecting the opinion and evidence of the treating physician, failing to support this rejection with specific and legitimate facts.
See Gumm v. Apfel, 17 F. Supp.2d 1213, 1220 (D.Kan.1998) (although court may reject controlling weight to treating physician's opinion on matters outside of his expertise; court should have given controlling weight to that part of treating physician's opinion that was based on his expertise).
IV. Severity
Defendant further determined that there is no objective, clinical evidence that Plaintiffs mental disability was severe prior to March 1, 1995. Defendant concedes that her mental disability was severe after March 1, 1995. Medically severe is defined as limiting the "ability to do basic work activities," which are "the abilities and aptitudes necessary to do most jobs."
20 C.F.R. § 404.1521(b), 416.921(b).
As discussed above, Defendant ignores the objective evidence in numerous medical records from 1990 to 1994, as referenced and incorporated in Dr. Voth's opinion. This evidence includes clinical observations that Plaintiff could not complete tasks, could not concentrate, had frequent crying spells and periods of emotional instability, as well as mood swings. The occupational therapist noted in January 1991, the Plaintiff was not emotionally prepared to return to work, and that after 11 sessions of occupational therapy, by February 1991 had shown only minimal improvement. In 1991 and 1992 Dr. Whitaker noted that Plaintiff had psychogenic symptoms.
The record demonstrates through the evaluations and observations of a number of treating medical practitioners, that from the time of Plaintiffs injury in 1991, she had the same difficulties with concentration, fiat or emotional affect, crying spells and emotional instability, that were noted by Dr. Schwartz in 1995, when he opined that Plaintiff could not work because of her physical condition and mental functioning. Defendant relied on Dr. Schwartz's evaluation, as adopted by Dr. Chance, and concluded that Plaintiffs mental disability was so severe in March 1995 that she could not work. The same basis for Dr. Schwartz's evaluation, his clinical observations and Plaintiffs subjective complaints, are recorded from 1990 on, and demonstrate that Plaintiff had a severe mental disability from the time of her 1990 injury.
While ignoring the considerable objective medical evidence, Defendant hones in on two medical reports. In a March 26, 1991 report, Dr. Patel, a neurologist, notes that he gave Plaintiff a work release that outlined what duties she could and could not do. And, in a letter to Plaintiff dated February 25, 1992, Dr. Whitaker, another neurologist, stated "[a]s regards Mrs. Kratochvil, I think she should be allowed to return to work if she wants to. She was rather emotionally disturbed when I told her I thought she had multiple sclerosis." Neither of these notes definitively establishes that Plaintiff was able to work at that point. Both Dr. Patel and Dr. Whitaker were treating neurologists, and did not treat Plaintiff for mental conditions. Dr. Whitaker's letter indicates that Plaintiff was not working in February 1992, despite Dr. Patel's work release in March 1991; and Dr. Whitaker's letter can only be construed as a comforting assurance that Plaintiff can choose to return to work, yet also noting her disturbed emotional state.
Defendant also argues that Plaintiffs mental disability was not severe prior to March 1, 1995, because she had not sought treatment, therapy or counseling. But, the record demonstrates that Plaintiff, as is not uncommon, was in a state of denial about her mental disability, to some extent. This is seen in the notations of Shawnee Community Mental Health medical records after March 1, 1995, and in Dr. Schwartz's notation that Plaintiff "denied her depression somewhat" to Dr. Schwartz. Plaintiff's reluctance to accept her physical as well as mental disability is documented in the medical records even before March 1, 1995. Moreover, in 1990 and 1991, Plaintiff was being treated for her mental condition; she was taking a prescribed anti-anxiety medication. While failure to seek treatment or therapy may be probative of severity, the ALJ failed to ask Plaintiff why she was not undergoing counseling or receiving therapy in 1990, 1991 or later. And, the ALJ has a basic duty of inquiry, to fully and fairly develop the record as to material issues. The ALJ had the opportunity at two administrative hearings to ask Plaintiff about this, but he did not. The record includes evidence that Plaintiff was in denial or struggling to accept her mental disability. That alone might explain why she did not seek treatment.
See Caldwell v. Sullivan, 736 F. Supp. 1076, 1082 (D.Kan.1990) (absence of notation of mental difficulties in physician's notes does not alone support finding of no impairment, for those suffering from mental difficulties may be unable to recognize the need for treatment).
In short, the objective evidence, as well as subjective evidence, relied upon by Dr. Schwartz and Dr. Chance to deem Plaintiff s mental disability severe after March 1, 1995, supports a determination that her mental disability was severe from 1990 to 1994.
V. Relief
Finally, Plaintiff requests reversal for an immediate award of benefits, given that her applications have been pending eight years, a delay largely occasioned by Defendant having two administrative hearings, both of which resulted in error. Plaintiff argues that this case should not be remanded to Defendant, as additional fact-finding would serve no useful purpose. Defendant does not respond, but rests on its arguments that the Court should not reverse or remand this case. The Court agrees that Defendant has had two administrative hearings, sufficient opportunity to fact find. And, with the Court's determination that Plaintiff was severely disabled from the time of her 1990 injury, no further evaluation at any subsequent steps is necessary. Accordingly, the Court will reverse for an immediate award of benefits.
See Harris v. Secretary of Health and Human Services, 821 F.2d 541, 544-545 (10th Cir. 1987) (outright reversal warranted where there is substantial evidence supporting disability); Dixon v. Heckler, 811 F.2d 506, 511 (10th Cir. 1987) (outright reversal warranted when remanding for further development or adjudication "would only further delay the appropriate determination and award of benefits.")
In sum, having carefully reviewed the record in this case and having considered Plaintiffs arguments in light of the record, the Court concludes that Defendant's denial of Plaintiff s applications for disability benefits and supplemental social security benefits, on the basis of a March 1, 1995 onset date and no severity, is not supported by substantial evidence nor based on an application of the correct legal standards.
IT IS THEREFORE ORDERED BY THE COURT THAT Plaintiffs Complaint (Doc. 1) and Initial Brief (Doc. 8) is granted and Defendant's decision denying Plaintiff disability and SSI benefits is reversed for an immediate award of benefits.