Opinion
Case No. 02-4120-SAC
January 8, 2004
MEMORANDUM AND ORDER
This is an action to review the final decision of the defendant Commissioner of Social Security ("Commissioner")denying the claimant's application for disability insurance benefits under Title II of the Social Security Act ("Act"). The case comes before the court on claimant's request that the court reverse the decision not to award her disability insurance benefits or, in the alternative, remand the matter back to the agency with instructions to consider certain evidence in support of claimant's claim.
PROCEDURAL HISTORY
The primary issue on appeal is whether the administrative law judge ("ALJ") properly considered the August 28, 1998 opinion of Dr. Twemlow, which claimant submitted after the close of the evidentiary hearing, but prior to issuance of the ALJ's decision.
Claimant was last insured on September 30, 1990. Claimant filed an application for disability insurance benefits on February 7, 1997, alleging that her disability had begun on April 10, 1986. The parties agree that claimant had the burden to show, among other matters, that she was disabled on a date prior to the expiration of her insured status. See Henrie v. United States Dep't of Health Human Services, 13 F.3d 359, 360 (10th Cir. 1993). Her claims were denied initially and on reconsideration.
At the claimant's request, a hearing before an ALJ was held on August 17, 1998. At the evidentiary hearing, the ALJ asked claimant's attorney to focus on the period preceding October 1st of 1990. (Tr. 26). Although claimant did not appear at the hearing, testimony was received from claimant's sister, as well as from a medical expert and a vocational expert. Claimant's counsel additionally submitted various letters from friends and family, and medical reports and records.
As the evidentiary hearing was drawing to a close, claimant's attorney noted that claimant had recently seen a psychiatrist, but no report had yet been completed. The ALJ replied that if he received the psychiatrist's report before he issued his decision, he would read it, but that he would not delay his decision waiting for the report. (Tr. 72-73). By letter dated September 1, 1998, claimant's attorney forwarded the psychiatrist's report to the ALJ. It states in part:
In my opinion [claimant] reaches the requirement for level of total disability and satisfies all the diagnostic criteria for panic disorder with agoraphobia (Section A) and also for Sections B and C of the Regulations. It seems that she's been by her own report housebound since 1989 so the diagnosis can be considered retrospective to that date.
(Tr. 283).
The ALJ issued his decision on November 25, 1998, finding in part as follows:
After giving careful consideration to all the evidence, the Administrative Law Judge has concluded that, on the date her insured status expired, claimant had a severe impairment or combination of impairments but retained the residual functional capacity to return to the work she performed in the past. For this reason she was not under a disability, as that term is defined in the Social Security Act and regulations.
(Tr.14-15).
Claimant timely sought review of the ALJ's decision, based in part upon the allegation that the ALJ failed to consider psychiatrist Twemlow's opinion that claimant was totally disabled and had been so since 1989, a date on which she was still insured. The Appeals Council denied claimant's request for review, noting: "neither the contentions, nor the additional evidence provides a basis for changing the Administrative Law Judge's decision." (Tr. 7). Thus, the ALJ's decision stands as the commissioner's final decision. O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994).
STANDARD OF REVIEW
The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that the commissioner's finding "as to any fact, if supported by substantial evidence, shall be conclusive." Substantial evidence is more than a scintilla and is that evidence which a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401-02 (1971); Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). The court's duty to assess whether substantial evidence exists:
"is not merely a quantitative exercise. Evidence is not substantial `if it is overwhelmed by other evidence — particularly certain types of evidence (e.g., that offered by treating physicians) — or if it really constitutes not evidence but mere conclusion.'"Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988) (quoting Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir. 1985)).
The record must "demonstrate that the ALJ considered all of the evidence," through "discussing the evidence supporting his decision,. . . the uncontroverted evidence he chooses not to rely upon, [and] significantly probative evidence he rejects." Clifton v. Chater, 79 F.3d 1007, 1009-1010 (10th Cir. 1996).
"The ALJ, however, need not discuss every piece of evidence." Colbert v. Barnhart, 2004WL 27765 (10th Cir. Jan. 6, 2003), citing Clifton at 1009-10. The court's review of the record includes the entire administrative record, including new evidence submitted to the ALJ before its decision. Where as here, "the Appeals Council considers the evidence but declines to review the case, we review the ALJ's decision and determine whether there is substantial evidence, which now includes the new evidence, to support the ALJ's decision." Jones v. Sullivan, 804 F. Supp. 1398, 1404 (D. Kan. 1992) (J. Theis), citing Williams v. Sullivan, 905 F.2d 214, 217 (8th Cir. 1990). Therefore, in deciding whether the ALJ's decision is supported by substantial evidence, the court will consider all the evidence, including Dr. Twemlow's opinion.
DIB QUALIFICATIONS
The qualifications for disability insurance benefits under the Social Security Act are that the claimant meets the insured status requirements, is less than 65 years of age, and is under a "disability." Flint v. Sullivan, 951 F.2d 264, 267 (10th Cir. 1991). An 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. . . . " 42 U.S.C. § 423(d)(2)(A).
A five-step sequential process is used in evaluating a claim of disability. Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Step one is whether the claimant is currently engaged in substantial gainful activity. If claimant is not, the fact finder in step two decides whether "the claimant has a medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 141. "The claimant bears the burden at step two to present evidence that she has a medically severe impairment or combination of impairments, and, to meet that burden, must furnish medical and other evidence in support of her claim. See Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987)." Cainglit v. Barnhart, 2003 WL 22963117 (10th Cir. Dec. 17, 2003). Step three entails looking at whether the impairment is equivalent to one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. If no equivalency is found, step four requires the claimant to show that because of the impairment he is unable to perform his past work. The final step is for the commissioner to show that the claimant retains the residual functional capacity ("RFC") to perform other work available in the national economy, considering such additional factors as age, education, and past work experience. See Williams v. Bowen, 844 F.2d 748, 850-52 (10th Cir. 1988); Sorenson v. Bowen, 888 F.2d 706, 710 (10th Cir. 1989). The commissioner satisfies this burden if substantial evidence supports it. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
ALJ'S FINDINGS
In his order of November 25, 1998, the ALJ made the following findings:
• Claimant met the disability insured status requirements of the Act on April 10, 1986, the date claimant stated she became unable to work, but continued to do so only through September 30, 1990.
• Claimant has not engaged in substantial gainful activity since April 10, 1986.
• The medical evidence establishes that, on the date her insured status expired, claimant had anxiety disorder and a history of substance abuse, impairments which are severe but which do not meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4.
• Claimant's allegations concerning her impairments and their impact on her ability to work on the date her insured status expired are not entirely credible.
• On September 30, 1990, the date her insured status expired, claimant retained the RFC to perform light work.
• Claimant had past relevant work as a caseworker for the State of Kansas.
• Claimant's past relevant work did not require the performance of work functions precluded by her medically determinable impairments.
• Claimant's impairments did not prevent her from performing her past relevant work on the date her insured status expired.
• Claimant was not under a disability, as defined in the Social Security Act, as amended, at any time through September 30, 1990, the date her insured status expired.
(Tr. 22).
Arguments and Authorities
The claimant's sole contention is that the ALJ erred at step three because he failed to discuss the report from Dr.Twemlow, and thus found that claimant's mental impairment was not equivalent to a listed impairment whose severity precludes substantial gainful activity.
Although the ALJ's decision recites that it gave "careful consideration to all the evidence," it makes no specific reference to Dr. Twemlow's opinion. In contending that this warrants reversal or remand, claimant relies primarily upon Clifton. There, the Tenth Circuit reversed the district court and remanded the case for additional proceedings because the ALJ made "such a bare conclusion" that it was effectively "beyond meaningful judicial review." Clifton, 79 F.3d at 1009. Clifton was based on the fact that "the ALJ did not discuss the evidence or his reasons for determining that appellant was not disabled at step three, or even identify the relevant Listing or Listings; he merely stated a summary conclusion that appellant's impairments did not meet or equal any Listed Impairment." Id.
In contrast, here the ALJ identified the relevant listings and discussed the evidence, including the lack of objective medical reports, which failed to support the severity of claimant's impairments. These findings are not the type of summary conclusion the Tenth Circuit rejected in Clifton, and, therefore, are not beyond any meaningful judicial review. While the court agrees that the ALJ could have done a more thorough job discussing the evidence, the court concludes that the ALJ's analysis is legally sufficient, providing significant substance for its review, which is what Clifton requires.
In determining whether claimant is entitled to disability benefits, the relevant analysis is whether claimant was actually disabled prior to expiration of insured status. Social Security Act, §§ 201 et seq., 206-233, 223(d)(1)(A), as amended, 42 U.S.C.A. §§ 401 et seq., 406-433, 423(d)(1)(A); Social Security Administration Regulations, § 404.130, 42 U.S.C.A.App. It is well established that a treating physician may make a retrospective diagnosis of a claimant's condition where it is supported by evidence of actual disability. See Coleman v. Chater, 58 F.3d 577, 579 (10th Cir. 1995); Potter v. Secretary of Health Human Servs., 905 F.2d 1346, 1349 (10th Cir. 1990); Brown for Brown v. Shalala, 5 F.3d 545, 1993 WL 318819, *3 (10th Cir. 1993); McKinney v. Barnhart, 62 Fed.Appx. 284, *285-286, 2003 WL 1788555 (10th Cir. 2003). Dr. Twemlow opined that claimant reached the requirement for level of total disability, retrospective to 1989, offering a retrospective diagnosis.
Thus the court's inquiry is whether the retrospective diagnosis is supported by evidence of actual disability. Dr. Twemlow's report states in part:
In my opinion [claimant] reaches the requirement for level of total disability and satisfies all the diagnostic criteria for panic disorder with agoraphobia (Section A) and also for Sections B and C of the Regulations. It seems that she's been by her own report housebound since 1989 so the diagnosis can be considered retrospective to that date.
(Tr. 283). Dr. Chance, the medical expert, testified that if he were to accept the lay testimony of claimant's sister at face value, claimant would meet the listed criteria for disability benefits, but he rejected such testimony because there were not sufficient medical records regarding the severity or length of claimant's impairment. Tr. at 17. The issue thus becomes whether this lay testimony can be sufficient to establish a disability under the Listings. Based upon the authorities set forth below, the court finds that it cannot.
"[A claimant] has the burden at step three of demonstrating, through medical evidence, that his impairments "meet all of the specified medical criteria" contained in a particular listing. (citation omitted)." Riddle v. Halter, 10 Fed.Appx. 665, 2001 WL 282344 at *1 (10th Cir. Mar. 22, 2001). "The question whether a claimant meets or equals a listed impairment is strictly a medical determination. 20 C.F.R. § 404.1526(b), 416.926(b)." Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990). A claimant's "statements alone are not enough to establish that there is a physical or mental impairment." 20 C.F.R. § 404.1528(a).
At this stage, the ALJ must determine that the "medical findings" are at least equal in severity and duration as those in the listed findings. 20 C.F.R. § 404.1526(a). "Medical findings" include symptoms (the claimant's own description of his impairments), signs (observations of anatomical, physiological and psychological abnormalities which are shown by clinical diagnostic techniques) and laboratory findings. 20 C.F.R. § 404.1528 (1986). However, the claimant's descriptions, alone, are not enough to establish a physical or mental impairment. Id. at § 404.1528(a).Bernal v. Bowen, 851 F.2d 297, 300 (10th Cir. 1988).
Dr. Twemlow's opinion that claimant was totally disabled in 1989 was based solely upon claimant's "own report" that she had been housebound since that date, rather than upon any medical findings or records. The Tenth Circuit rejected similar attempts to establish a disability under the listings solely by lay testimony, in stating:
The only evidence going to the limitations Bernal claims is his own testimony and that of his wife. The regulations provide, however, that the claimant's own descriptions of his impairments is not sufficient to establish his disability under the Listings. 20 C.F.R. § 404.1528(a). For these reasons, Bernal failed to provide sufficientfs evidence supporting his claims, and the court finds that the Secretary's decision on this point is supported by substantial evidence.Bernal, 851 F.2d at 300 (10th Cir. 1988).
Accordingly, the court finds that neither the lay testimony nor Dr. Twemlow's recitation of claimant's statements constitutes "significantly probative evidence" sufficient to establish a disability under the Listings, or to support Dr. Twemlow's retrospective diagnosis. See Coleman, 58 F.3d at 579 (finding the examiner's recitation of claimant's own statement to be "patently self-serving and cannot be controlling absent other persuasive evidence in the record."); Brown, 1993 WL 318819 (finding treating physician's "conclusory statement that claimant most likely was disabled" during the relevant period did not constitute substantial evidence of claimant's disability during the relevant period); cf McKinney, 62 Fed. Appx. at *2 (finding medical journal articles alone insufficient to show actual disability) . Nor does Dr. Twemlow's report, by its mere repetition of claimant's allegations, constitute a medical finding equivalent in severity to the criteria of any listed impairment on the relevant date.
None of claimant's treating physicians indicated that claimant had significant limitations, or was disabled due to a mental impairment on the relevant date. Claimant was not prescribed any medications for a mental impairment during the relevant time, Tr. 212, and the only treatment reflected in the medical records was nine biofeedback training sessions, which claimant discontinued in part because of her satisfaction with the progress she had made, Tr. 208-09. The medical expert testified that claimant had only slight difficulties in activities of daily living, slight difficulties in maintaining social functioning, seldom had deficiencies of concentration, persistence, or pace, and once or twice had episodes of deterioration or decompensation. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.06. The court concludes that the agency applied the correct legal standards and dthat substantial evidence supports the agency's decision.
IT IS THEREFORE ORDERED that the decision is affirmed.