Opinion
Civil No. 02-2900 (JRT/RLE)
March 31, 2004
Edward C. Olson, Minneapolis, MN, for plaintiff
Lonnie F. Bryan, Minneapolis, MN, for defendant
ORDER
Plaintiff Norean T. Walz sought judicial review of the denial of her application for Supplemental Security Income ("SSI"). United States Magistrate Judge Raymond L. Erickson recommended, in a Report and Recommendation dated February 19, 2004, that the Commissioner's denial of Walz's SSI application be upheld, and that the Court grant summary judgment to the Commissioner, and deny Walz's motion for summary judgment. Walz objects to the Magistrate Judge's Report and Recommendation.
The Court has reviewed de novo plaintiff's objections to the Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(C) and D. Minn. LR 72.1(c)(2). For the reasons set forth below, the Court sustains Plaintiff's objections, does not adopt the RR, and grants Plaintiff's motion for summary judgment. The Court remands this case to the Commissioner for an award of benefits commencing December 12, 1998.
BACKGROUND
I. Relevant Factual Background in the Administrative Record
At the time of the hearing, Norean Walz was forty-nine years old. She is married, and has four daughters and at least one grandchild. Walz completed the tenth grade and has prior work experience in a turkey processing plant and as a plastics laborer. (Tr. at 43, 46.) She also worked for a short time at a convenience store. (Tr. at 43-44.) She worked for five years as a plastics laborer, but had to stop working at the plastics plant on December 12, 1998, due to increased difficulty breathing that she attributed to a change in the chemicals used in the plant. (Tr. at 33-34.)
Tr. refers to the 150-page transcript that is certified as the full and accurate transcript of the entire record of proceedings relating to this case. [Docket No. 5].
Walz has asthma, which is being treated with inhalers, and a nebulizer, both of which contain medication. (Tr. at 34-36.) She has gone to the emergency room on two occasions related to her asthma, but refuses to be hospitalized for the condition. (Tr. at 36-37.) Walz also complains of migraine headaches and ulcers. (Tr. at 37.) She takes prescription strength ibuprofen for the migraines and is not being treated currently for the ulcers, though she takes antacids and attempts to modify her diet. ( Id.) At the time of the hearing, Walz had not received any treatment for depression or mental illness. (Tr. at 48.) In relation to mental illness, she described at the hearing that when her husband was driving under a bridge on the way to the hearing, she could not breathe. (Tr. at 52.) She also described a past experience during which she felt very anxious when she saw a group of African-American men, even though she recognized the men were not doing anything threatening. (Tr. at 52.) These descriptions were in response to questions posed by counsel.
Prior to the hearing, plaintiff underwent a psychodiagnostic evaluation by Dr. Paul Reitman. (Tr. at 142-48.) Dr. Reitman assessed plaintiff according to customary psychological standards, and noted that according to the Millon Clinical Multiaxial Inventory-III, she shows serious depressive symptomatology and is likely to experience disabling episodes of anxiety symptoms causing her decompensation. Plaintiff's GAF was 50-55. Plaintiff's DSM-IV diagnostic formulation included anxiety disorder with panic attacks; depressive disorder NOS; and an undiagnosable psychological disorder that has been untreated. Plaintiff tested at an IQ of 70, and exhibited pronounced deficits with respect to attention and concentration. Dr. Reitman noted that plaintiff has a disabling anxiety for which she had never been treated. He explained: "It is likely that she is much more comfortable and prefers physical explanations to her problems . . ." (Tr. at 147.) Dr. Reitman concluded that plaintiff should be evaluated for psychotropic medications and should be involved in psychological treatment. He noted that such treatment has never been offered to her, and it was his impression that she would be amenable to such treatment.
An internist, Dr. Indihar, testified as the medical expert at the administrative hearing. He opined that Plaintiff's medical history supports two diagnoses — one of Chronic Asthmatic Bronchitis and one of Anxiety Disorder with Panic Attacks. (Tr. at 53.) Dr. Indihar noted that he is not qualified to comment on Plaintiff's panic attacks. (Tr. at 54.) He indicated that because of her asthma, she cannot have any job in which she would be exposed to noxious chemicals, fumes, dust, or smoke. (Tr. at 54.) Dr. Indihar did not comment on the IQ testing done by consulting psychologist Dr. Reitman. Dr. Indihar also did not comment on Dr. Reitman's psychological diagnosis that plaintiff suffers from an anxiety disorder with panic attacks, a depressive disorder NOS, and exhibits a GAP of 50-55.
II. Procedural Background
A. Administrative Background
Plaintiff filed the application for SSI that is at issue in this case on October 25, 2000 ("the 2000 application"), which alleged that she became disabled on December 12, 1998, due to lung and breathing problems. Her claim was denied upon initial review and upon reconsideration. A hearing was held in front of ALJ Paul D. Tierney on October 23, 2001. ALJ Tierney issued a decision denying benefits on December 27, 2001, and the Appeals Council denied review on June 7, 2002.
Plaintiff also filed an application for SSI and disability insurance benefits on June 14, 2002 ("the 2002 application"), claiming an onset date of December 12, 1998. The application was denied initially on October 4, 2002, and upon reconsideration on December 13, 2002. A hearing was held on July 28, 2003, and ALJ Michael D. Quayle subsequently issued a decision in favor of plaintiff. ( See Exhibit A to Plaintiff's Objections to Magistrate Judge's Report and Recommendation.) Specifically, ALJ Quayle determined that "the claimant has been under a disability, as defined in the Social Security Act, since December 12, 1998" and further that "the claimant is entitled to a period of disability commencing December 12, 1998." ( Id.) He further determined that "the claimant's disability has continued at least through the date of this decision." ( Id.) The decision was dated October 29, 2003.
The Commission permits filing a new claim while an old claim is pending on appeal. See Social Security Administration, EM-99147, "Emergency Message (EM) — Instructions for Processing Subsequent Disability Claims While a Prior Claim is Pending Review at the Appeals Council (AC) — Action (December 30, 1999). See also Barrientoz v. Massanari, 202 F. Supp.2d 577, 578 n. 2 (W.D. Tex. 2002) (remanding because the Commission failed to follow the procedure set out in EM-99147). This policy has since been implemented through a variety of Program Operations Manual System ("POMS") provisions, including (1) SSA POMS DI 12045.027, 2001 WL 1932370; (2) SSA POMS DI 20101.25, 2002 WL 1878621; and (3) SSA POMS SI 04040.025, 2002 WL 1879213.
ALJ Quayle also reopened a final determination, dated August 27, 1999, made on yet another application for benefits which plaintiff filed on April 5, 1999 ("the 1999 application"). He revised that final determination in the 1999 application to reflect a finding of disability. The ALJ further noted that the instant case (addressing the 2000 application) was pending in this Court, and noted that because the 1999 and 2000 applications were initially denied within four years of the filing date of the application before him, the additional applications were reopenable for good cause. 20 C.F.R. § 416.1488. The ALJ acknowledged, however, that he was prevented from reopening the 2000 application because it was pending before this Court and, as such, was not under the jurisdiction of the Social Security Administration.
B. District Court Background
On August 12, 2002, plaintiff filed this action, appealing the denial of the benefits requested in her 2000 application. The parties filed cross motions for summary judgment in April (plaintiff) and June (defendant) of 2003. It does not appear that the Magistrate Judge heard oral argument. The Magistrate Judge's Report and Recommendation was issued on February 19, 2004.
C. Plaintiff's Objections
Plaintiff objects to the RR, arguing that the Commissioner's determination, in the 2002 application, that she is disabled mandates summary judgment in her favor. Plaintiff provided the Court with a copy of the October 29, 2003 determination by ALJ Quayle discussed above. As noted above, ALJ Quayle determined that plaintiff meets the Commissioner's definition of disability during the relevant time period. Quayle's decision was issued after the parties filed their motions for summary judgment, but before the Magistrate Judge issued his RR. There is no indication in the record that this decision was provided to the Magistrate Judge, and it does not appear that the Magistrate Judge was made aware of it.
Assistant United States Attorney Lonnie Bryan (AUSA Bryan) filed a "Response to Plaintiff's Objections to the Magistrate Judge's Report and Recommendation" on behalf of the Commissioner. That response does not address, or even acknowledge, that the Commissioner has taken contrary action on Plaintiff's applications for benefits. Although AUSA Bryan requests that the Court adopt the RR without modification, he provides no substantive discussion of the issue raised in Plaintiff's objection. The response indicates that the RR "refutes Plaintiff's objections, which are essentially the same as the arguments presented to the Magistrate Judge." In fact, the objections raise an entirely new issue, and do not so much as mention "the same arguments presented to the Magistrate Judge." As a result of the inadequate response filed by AUSA Bryan, it is completely unclear to the Court what position the Commissioner takes with respect to plaintiff's specific objection.
ANALYSIS
Pursuant to the "judicial review" provision of the Act, 42 U.S.C. § 405(g), a district court may "at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." See McQueen v. Apfel, 168 F.3d 152, 156 (5th Cir. 1999) (citing 42 U.S.C. § 405(g)). Evidence is material if there is a reasonable possibility that the new evidence would have changed the outcome. Krogmeier v. Barnhart, 294 F.3d 1019, 1025 (8th Cir. 2002) ("Material evidence is non-cumulative, relevant, and probative of the claimant's condition for the time period for which benefits were denied, and there must be a reasonable likelihood that it would have changed the [Commissioner's] determination.") (internal quotation omitted). The new evidence must "relate to the period on or before the date of the administrative law judge hearing decision." 20 C.F.R. § 404.970(b). "This does not mean that the evidence had to have existed during that period. Rather, evidence must be considered if it has any bearing upon whether the [c]laimant was disabled during the relevant period of time." Reichard v. Barnhart, 285 F. Supp.2d 728, 733 (S.D. W. Va. 2003); see also Cunningham v. Apfel, 222 F.3d 496, 502 (8th Cir. 2000) (noting that "[t]he timing of an examination is not dispositive of whether evidence is material; medical evidence obtained after an ALJ decision is material if it relates to the claimant's condition on or before the date of the ALJ's decision.") (emphasis added).
Absent the October 29, 2003 finding that plaintiff has been disabled for the relevant time period, the case would be remanded to fully develop the record. See Cunningham, 222 F.3d at 501 n. 6 (noting that the "ALJ has [a] well-established duty to develop a full and fair record because the hearing is non-adversarial — the goals of the Commissioner and the advocates should be the same: that deserving claimants who apply for benefits receive justice.") (citation omitted). Although there was evidence in the record that plaintiff has an I.Q. that might support a finding of disability on that basis, and that plaintiff has a diagnosis of anxiety attacks, the ALJ did not further investigate Plaintiff's mental limitations, and did not order additional medical or psychiatric examinations. Plaintiff was questioned only superficially about her panic attacks, and her intelligence. Because Dr. Indihar conceded he was not qualified to render an opinion on Plaintiff's panic attacks and did not address her psychological limitations, the only medical evidence discussed by ALJ Tierney in his decision was that of consulting psychologist Dr. Reitman. Although the ALJ discussed Dr. Reitman's diagnoses, he did not give the diagnoses controlling weight, and implicitly disregarded Dr. Reitman's opinion when determining Plaintiff's limitations. At the hearing, the ALJ did not expressly inquire how Plaintiff's mental limitations, such as her crying episodes and inability to concentrate, affected her daily routine.
In addition, there is indication that after the initial evaluation by Dr. Reitman, Plaintiff's general practitioner, Dr. Keith Olson, referred her to a mental health care professional. (Tr. at 149-50.) The records of that treating medical source should have been examined. Such records were not available at the initial hearing because plaintiff had yet to receive mental health treatment, despite her panic attacks, and history of sexual, physical and mental abuse. Plaintiff's failure to obtain treatment for mental health issues must be considered in combination with her borderline intelligence, and her anxiety disorder. See, e.g., Tonapetyan v. Halter, 242 F.3d 1144 (9th Cir. 2001); Saltzman v. Apfel, 125 F. Supp.2d 1014 (C.D. Cal. 2000) (reasoning that the ALJ has a special duty to fully and fairly develop the record where the claimant has a mental impairment).
This failure to fully develop the record would normally warrant remand. Battles v. Shalala, 36 F.3d 43, 45-46 (8th Cir. 1994) (ordering case remanded for development of the record where ALJ failed to fully develop the record and noting that "[t]he ALJ asked no questions and counsel's questions failed to shed light on [claimant's] mental capacity to work"); Jones v. Apfel, 66 F. Supp.2d 518, 524 (S.D.N.Y 1999) (finding that ALJ failed to adequately develop record by failing to question claimant regarding how alleged psychiatric condition affected her ability to work). In this case, however, the Commissioner has determined that the plaintiff meets the Commission's definition of disabled, as of December 12, 1998 through at least October 29, 2003. That decision encompasses the time period relevant to the present matter. There is no indication that Plaintiff's condition has improved, in fact, the Commissioner offers no rationale at all for a contrary finding in this matter. Therefore, remand is not warranted, and plaintiff is entitled to an award of benefits. Howard v. Apfel, 17 F. Supp.2d 955, 971-72 (W.D. Mo. 1998); Reichard, 285 F. Supp.2d at 736 n. 9 (ordering remand, but noting that in some cases remand would not be needed, especially where "disability is found upon subsequent applications on substantially the same evidentiary background as was considered with respect to prior applications").
ORDER
Based on the foregoing, and all of the records, files, and proceedings herein, the Court SUSTAINS the objections of the plaintiff [Docket No. 16], and REJECTS the Magistrate Judge's Report and Recommendation [Docket No. 15] for the reasons set forth above. Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for summary judgment or for remand [Docket No. 11] is GRANTED.
2. Defendant's motion for summary judgment [Docket No. 13] is DENIED.
3. This case is REMANDED to the Commissioner for an award of benefits commencing December 12, 1998.
LET JUDGMENT BE ENTERED ACCORDINGLY.