Opinion
No. 98-4214-SAC.
November 2000.
MEMORANDUM AND ORDER
This is an action to review the final decision of the defendant Commissioner of Social Security ("Commissioner") denying the claimant Rick E. Banks' applications for disability insurance benefits under Title II of the Social Security Act ("Act") and for supplemental security income ("SSI") under Title XVI of the Act. The case is ripe for decision on the parties' briefs filed pursuant to D.Kan. Rule 83.7.
PROCEDURAL HISTORY
The claimant applied for disability benefits and SSI on September 7, 1995, asserting he had been disabled as of June 9, 1995. His claims were denied initially and on reconsideration. At the claimant's request, a hearing before an administrative law judge ("ALJ") was held on October 31, 1996, and he appeared in person and with counsel. (Tr. 38-81). Witnesses at the hearing were the claimant, a medical expert, and a vocational expert. The ALJ subsequently issued his decision on February 6, 1997, finding that the claimant was not disabled as defined under the Social Security Act. The Appeals Council denied the claimant's request for review after also considering a letter from the claimant's attorney and additional hospital records. Thus, the ALJ's decision stands as the Commissioner's final decision. O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994) (citing See 20 C.F.R. § 404.981).
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. Persales, 402 U.S. 389, 401-02 (1971); Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). "A finding of `"no substantial evidence" will be found only where there is a "conspicuous absence of credible choices" or "no contrary medical evidence."' " Trimiar v. Sullivan, 966 F.2d 1326, 1328 (10th Cir. 1992) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983) (quoting Hemphill v. Weinberger, 483 F.2d 1137 (5th Cir. 1973)). "Evidence is insubstantial if it is overwhelmingly contradicted by other evidence." O'Dell v. Shalala, 44 F.3d at 858 (citation omitted).
The court's review also extends to determining whether the Commissioner applied the correct legal standards. Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). Besides the lack of substantial evidence, reversal may be appropriate when the Commissioner uses the wrong legal standards or the Commissioner fails to demonstrate reliance on the correct legal standards. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994).
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 court "must examine the record closely to determine whether substantial evidence supports" the Commissioner's determination. Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996). The court is not to reweigh the evidence or substitute its judgment for the Commissioner's. Glass v. Shalala, 43 F.3d at 1395. The court typically defers to the ALJ on issues of witness credibility. Hamilton v. Secretary of Health Human Services, 961 F.2d 1495, 1498 (10th Cir. 1992). Nonetheless, "`[f]indings as to credibility should be closely and affirmatively linked to substantial evidence. . . .'" Winfrey, 92 F.3d at 1020 (quoting Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988)). The courts do not mechanically accept the Commissioner's findings. Claassen v. Heckler, 600 F. Supp. 1507, 1509 (D.Kan. 1985); see Ehrhart v. Secretary of Health Human Services, 969 F.2d 534, 538 (7th Cir. 1992) ("By the same token, we must do more than merely rubber stamp the decisions of the" Commissioner. (citation omitted)). Nor will the findings be affirmed by isolating facts and labeling them substantial evidence, as the court must scrutinize the entire record in determining whether the Commissioner's conclusions are rational. Holloway v. Heckler, 607 F. Supp. 71, 72 (D.Kan. 1985). "`We examine the record as a whole, including whatever in the record fairly detracts from the weight of the . . . [Commissioner's] decision and, on that basis determine if the substantiality of the evidence test has been met.'" Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994) (quoting Casias v. Secretary of Health Human Services, 933 F.2d 799, 800-01 (10th Cir. 1991)); see Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). The court's review of the record includes evidence plaintiff presented for the first time to the Appeals Council. See O'Dell v. Shalala, 44 F.3d at 858, 859.
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). The claimant has the burden of proving a disability that prevents him from engaging in his prior work for a continuous period of twelve months. Trimiar, 966 F.2d at 1329. The burden then shifts to the Commissioner to show that the claimant retains the ability to do other work activity and that jobs the claimant could perform exist in the national economy. 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).
A five-step sequential process is used in evaluating a claim of disability. Bowen v. Yuckert, 482 U.S. 137, 140 (1987). This process comes to an end if at any point the Commissioner determines the claimant is disabled or not. Gossett, 862 F.2d at 805. 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. 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, step four requires the claimant to show that because of the impairment he is unable to perform his past work. The final step is to determine whether the claimant has 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).
ALJ'S FINDINGS
In his order of February 6, 1997, the ALJ made the following findings:
1. Claimant met the disability insured status requirements of the Act on June 9, 1995, the date claimant stated he became unable to work, and continues to meet them through the date of this decision.
2. Claimant has not engaged in substantial gainful activity since June 9, 1995.
3. The medical evidence establishes that claimant has the following impairments: chronic obstructive pulmonary disease; multiple arthralgias involving the neck, back and arms; and affective and personality disorders. Nonetheless, claimant does not have impairments, considered singularly or in combination, which meet or equal any criteria contained in the Listing of Impairments, Appendix 1, Subpart P, Regulations No. 4.
4. Claimant's testimony as to the severity of his physical and mental conditions is found to be no more than partially credible for the reasons set forth in this decision.
5. Claimant has the residual functional capacity to perform the exertional and nonexertional requirements of sedentary sit/stand option work activity with the particular restrictions set forth hypothetically to the vocational expert at the hearing.
6. Claimant is unable to perform any of his past relevant work due to the exertional requirements of those jobs.
7. Claimant has acquired no vocational skills from his past relevant work which would transfer to jobs within his residual functional capacity and restrictions.
8. Claimant has ranged between 41 and 43 years of age during the pertinent time frame of this appeal, which is defined as a "younger" individual, and he has a "high school" education plus two years of college.
9. Based on an exertional capacity for sedentary sit/stand option work activity, and claimant's age, education and work experience, Rule 201.28 of Table No. 1 of Appendix 2, Subpart P, Regulations No. 4 directs a conclusion of "not disabled."
10. Although claimant has some nonexertional limitations, using the above-cited rule as framework for decisionmaking, there are a significant number of jobs in the local and national economies which he could perform, the numbers and identities of which were specifically set forth by the vocational expert at the hearing.
11. Claimant has not been under a "disability," as defined in the Social Security Act, as amended, at any time through the date of this decision.
(Tr. 30-31).
SUMMARY OF ARGUMENTS
The claimant first argues that the ALJ erred in assessing the severity of the claimant's mental impairment, in not discussing with specificity why his mental impairments did not meet the listings, and in not finding a disability at step three based on the reports from the claimant's treating mental health care providers. The claimant contends the ALJ failed to give sufficient weight to his treating physicians' most recent opinions and placed undue weight on the opinions of consulting physicians and medical experts. In addition, the ALJ relied on only selected parts of the claimant's extensive medical records and accorded them weight without due regard for the entire medical record. The claimant also argues that substantial evidence does not sustain the ALJ's credibility findings regarding the claimant's pain testimony.
FACTS
At the time of the administrative hearing on June 25, 1996, Mr. Banks was 43 years old. His past relevant work experience included mail handler with the post office, plumber and sales clerk. His last period of employment was as a mail handler from December of 1988 through June of 1995. This employment ended when the United States Postal Service determined it was unable to provide him work duties consistent with his physician's severe restrictions related to his chronic obstructive pulmonary disease ("COPD"). He has not held any other job since that time. Because the medical evidence of record spans nearly three hundred pages, the court will highlight the more pertinent findings and opinions and organize its discussion chronologically and by impairment.
COPD and other physiological impairments
In 1991, Mr. Banks had a history of "chronic obstructive pulmonary disease with intermittent acute flareups of bronchitis and wheezing." (Tr. 193). A left upper lobe mass was found in x-rays. Biopsies and CT scans did not reveal any malignant cells, but they did indicate sarcoidosis. The mass was excised at Mr. Banks' request. On discharge, the provisional diagnosis was "granulomatous inflammation in lung and mediastinal lymph node, consistent with sarcoidosis." (Tr. 192). Dr. Spangler noted in September of 1992 that the sarcoid process seemed to be stable.
In 1993, Mr. Banks presented with acute neck pains that were evaluated with x-rays and a MRI. The physician reading the MRI opined that there was "degenerative disc disease and bulging of the disc and osteophyte formation on the left side at C6-7 and also at C3-4 on the left side. This causes some foraminal narrowing at both of these levels and may be the etiology of the patient's symptoms." (Tr. 278). A subsequent cervical CT scan corroborated the findings made from the MRI. The treating physician, Dr. C. Yorke, diagnosed a left C6-7 disc herniation and in July of 1993 performed an anterior cervical discectomy.
In April of 1995, Banks complained to Dr. Spangler about his increased need for an inhaler and shortness of breath. In June of 1995, Dr. Spangler treated Banks for acute bronchitis with bronchospasm. After two months of increased coughing, wheezing and shortness of breath, Dr. Spangler referred Banks to Dr. Robert Hill who saw Banks in July of 1995. Dr. Hill advised Banks to stop smoking, prescribed new medication, and ordered pulmonary function studies. In late July of 1995, Dr. Hill completed a light duty form on the claimant that restricted him from various activities including lifting no more than ten pounds, walking no more ten minutes a day, and being exposed to "dust, fumes, vapors, extremes of heat and humidity and strenuous work." (Tr. 230). By letter dated August 29, 1995, the United States Postal Service explained that it terminated Banks because it could not provide employment within these severe physical restrictions. Also in late August of 1995, Banks was evaluated at the Pulmonary Clinic at the University of Kansas Medical Clinic on complaints that shortness of breath and wheezing has kept him from working around six months of the last year.
In a letter dated September 29, 1995, Dr. Hill opined that Mr. Banks suffers from "moderately severe chronic obstructive pulmonary disease" that is "chronically symptomatic with cough, wheezing and shortness of breath" and that "will require medication on a continuous basis for the rest of his life." (Tr. 248). "The course of this disease is commonly one of waxing and waning symptoms and there may be periods of time when he is less symptomatic than presently." (Tr. 248). Dr. Hill did not rule out work and only noted his previous restrictions regarding the work place and vigorous or continuous physical activity. (Tr. 248).
On March 23, 1996, Dr. Daniel Thompson evaluated Banks at the request of the Social Security Administration. From his examination of Banks' chest, Dr. Thompson noted that "Breath sounds are severely impaired. Accessory muscles are used. There is wheezing heard throughout the lung fields." (Tr. 348). "Pulmonary function studies were performed with shortness of breath and wheezing. He did his maximum capability today taking into account his severe lung disease." (Tr. 350). "Cessation of smoking is warranted." Id.
After his health insurance benefits with the Postal Service ended, Mr. Banks sought treatment in January of 1996 at the Veterans Administration ("VA") Hospital for his COPD. He continued to receive medications for this condition. In May, Banks asked his pulmonary physician, Dr. Kiddess, for a referral to stop smoking classes and for patches to help him quit. Records show Banks made the first class and then stopped attending. In June, pulmonary function studies were done at the VA which showed moderate airway obstruction consistent with lung disease. His response to the bronchodilators indicated a reversible component.
A radiologic consultation report dated November 15, 1996, states that there is "[v]ery minimal disc space narrowing" at L4-5 level with "[v]ertebral marginal hypertrophic changes at L4 level." (Tr. 577). In December, Banks began four weeks of physical therapy to help him manage his back pain, understand proper back care, and develop a home exercise program. On the initial therapy evaluation, the physical therapist observed tender points and significant hamstring tightening bilaterally.
In April of 1997, Banks received a TENS unit and training in its use for his back pain and was recommended for pool therapy as a follow-up. In May of 1997, Banks reported constant and sometimes severe and shooting back pain. His physical activity was "very limited," as he could walk only 25 to 50 yards with no problems. He was taking four inhalers at the time for his COPD and was complaining during the same period about increased shortness of breath due to allergies and the weather.
In January of 1998, a CT scan of Banks' lumbar spine revealed degenerative joint disease, spinal canal stenosis, and bulging annulus. Breathing studies in March 1998 continued to show Banks' airways were obstructed by disease that was reversible. A Gallium scan done in April indicated no active sarcoidosis.
Mental Impairments
In January of 1994, Dr. Spangler, referred Mr. Banks to a psychiatrist, Ethan Bickelhaupt, for frequent and uncontrollable crying, fits of anger, lack of motivation, and difficulty with sleeping. Dr. Bickelhaupt diagnosed Banks with major depression and mixed personality disorder and treated him with medication and counseling. Dr. Bickelhaupt told Banks' employer that he had no certain date for anticipating Mr. Banks return to work. In April of 1994, Dr. Bickelhaupt's notes reflect that the claimant's depression was improving but that he experienced panic attacks causing him to retreat to his garage and he still expressed feelings like being "sick of life." (Tr. 203).
A consulting psychologist, Arthur McKenna, examined Banks at the request of the Social Security Administration. McKenna observed that Banks was easily winded and had a difficult time breathing and that his emotional state appeared blunted and tired. While oriented in all spheres, Banks' "memory for recent and remote events appeared somewhat impaired" and his "attention and concentration were somewhat below average." (Tr. 243). As far as his conclusions, Dr. McKenna wrote that while Banks "could hold down a simple unskilled job" there were his problems with "his physical stamina," his performance of "daily living activities," and his concentration. (Tr. 243-44). "Rick would have moderate difficulties keeping a work schedule with average performance demands because of his breathing problems and his depression." (Tr. 244). "Rick would have moderate difficulties sustaining his concentration over an eight-hour day in at least routine activity because of his medical difficulties." (Tr. 244).
After his health insurance benefits with the Postal Service ended, Mr. Banks began treatment in January of 1996 at the VA Hospital for his depression. He was referred to Dr. John Costa for his mental health issues. As the primary care physician, Dr. Costa made his initial assessment in January 30, 1996. Banks presented his problems as depression, difficulty with sleeping, and occasional crying spells and suicidal ideation. Banks said he had quit smoking using a nicotine patch but that he had relapsed because of tension caused by his girlfriend. Dr. Costa diagnosed in relevant part "major depressive disorder, recurrent, without psychotic features, severe" and "personality disorder, not otherwise specified, with mixed obsessive-compulsive features and dependent features." (Tr. 298). Dr. Costa believed that Banks' current Global Assessment of Functioning (GAF) was 39 with a high of 48 for the past year. Dr. Costa admitted Banks for treatment of his anxiety and depression and with notations about the possible side effects from his different medications. The initial plan was for individual psychotherapy, medication, and group psychological testing.
Mr. Banks had his first individual psychotherapy session with Dr. Costa on February 8, 1996, and then he missed the next three weeks of sessions. The record contains Dr. Costa's notes from sessions from March 28th through at least June 24, 1996. It was observed that Banks was making fair to poor progress as he was keeping his appointments and was sleeping better but he was still depressed and having anger outbursts. Banks explained that he had been "trying to pace himself in completing tasks so that he does not have to need 2-3 days to recuperate due to his lung condition." (Tr. 460). He was then referred to a female therapist for additional therapy.
"Group psychological testing [of Banks] revealed borderline functioning with paranoid, obsessive-compulsive and dependent features. Thought disorder and a bipolar process could not be ruled out." (Tr. 514). Individual psychological testing was performed in April of 1996 to clarify the diagnosis. The staff psychologist opined:
Individual testing reveals a strong characterological component operating in Mr. Banks' personality. His former use of work to a compulsive degree was his way of gaining control over the affective lability, identity disturbance and anger that accompanies borderline functioning. Serious problems in thinking are indicated, but this is a problem that is secondary to borderline personality disorder and not the result of a schizoaffective or bipolar process. Faulty conceptualization is likely to occur during periods of stress. He is currently in such an episode due to his loss of employment. This puts him at considerable risk for impulsive behavior until he has made an adjustment to his loss of employment.
(Tr. 514). It was further opined that Banks had developed "several compulsive behaviors, perhaps to the extent that he has obsessive-compulsive disorder." (Tr. 515). The psychologist recommended individual psychotheraphy, group therapy, involvement in activities as tolerated by his COPD.
Dr. Costa sent to Mr. Banks' attorney an opinion letter regarding the claimant's psychiatric condition that was dated June 25, 1996. The letter recounts that Dr. Costa regularly saw Mr. Banks, "approximately weekly," for therapy and medication management. Dr. Costa's diagnosis basically was the same one he made at the initial interview with the same GAF of 39. As far as Mr. Banks' limitations, Dr. Costa opined in relevant part:
I believe his depression and low self-esteem explain his difficulties with activities of daily living. This is manifested by his difficulties for caring appropriately for his grooming and hygiene. Regarding his capacity for social functioning, he is impaired in that he tends to avoid interpersonal relationships and tends to be socially isolated. I believe that his depression as well as his lung condition have markedly impaired his ability for concentration, persistence, and pace. He tends to either give up easily when attempting to perform a task or he will attempt the task and become fatigued. During my work with him, I have tried to help him focus on his ability to pace himself as well as to cognitively think about his problems in different ways. Additionally, there is a probability for deterioration or decompensation, should he be placed in work or a work-like situation. He would have difficulty in making decisions as well as keeping regular attendance and staying on a busy schedule.
As a result of his psychiatric condition, I believe his prognosis is guarded. I think that there is the potential for some improvement with further medication management as well as psychotherapy interventions. However, I would expect his condition to last for longer than at least 12 consecutive months.
(Tr. 367).
On March 28, 1996, Carroll Ohlde, Ph. D. performed a psychological evaluation for the Social Security Administration. Dr. Ohlde scored Mr. Banks at 60-65 for GAF and opined that he could perform simple tasks, keep a work schedule, and sustain adequate concentration. Dr. Ohlde recognized that ongoing medication for Mr. Banks' depression was needed and that "his depressive symptoms and any return to substance use may at times reduce his efficiency and effectiveness in work environments." (Tr. 223).
Gail Horsley, a clinical nurse specialist, started individual psychotherapy sessions in June of 1996. In the initial session, Banks mentioned his persistent thoughts about suicide. In subsequent sessions, Banks discussed the need to retreat to his trailer as a separate residence "when he is on the verge of losing control of his anger." (Tr. 441). Banks related he was sleeping only three hours a night, and Horsley recorded that Banks had limited ability to function in the community "due to physical problems and general hopelessness about his situation." (Tr. 437). Horsley observed the "only meaningful activity" in Banks' life "right now is babysitting the eleven-month-old boy child of his girlfriend." Id. Horsley referred Banks "to biofeedback for relaxation/visualization training for his pulmonary condition and his weakened immune system." (Tr. 424).
During this same period, his medicines were handled by Dr. Pope who recorded notes in July that Banks was more depressed, having temper outbursts, and not sleeping well as a result of more stressors in life. (Tr. 440). Dr. Pope in September observed Banks still had mood swings, some obsessive thinking, and was sleeping maybe too much now. In October, Horsley recorded the following notes from a therapy session with Banks: "Very depressed with increased sense of hopelessness and lack of purpose in life. Feels he cannot get ahead in life. Sleeping more and not eating. . . . Offered client hospitalization, if necessary, and appointment set for 1:15 p.m. tomorrow for him to see Dr. Pope for medicine review." (Tr. 423). Dr. Pope increased Bank's medications and recorded the following notes from that visit: "Has been doing very poorly lately. . . . He's unable to get anything done, locks himself in the house. He's extremely anxious. . . . He's having suicidal thoughts,. . . . I offered him hospitalization but he doesn't feel he wants to do that now. I believe he is unable to work in any capacity due to physical and mental problems." (Tr. 572).
On November 8, 1996, Dr. Costa completed a psychiatric review technique ("PRT") opining that Mr. Banks met the listings at 12.04A1 Affective Disorders: "Depressive syndrome characterized by . . . [a]nhedonia or pervasive loss of interest in almost all activities; . . .; [s]leep disturbance; [p]sychomotor agitation or retardation; [d]ecreased energy; [f]eelings of guilt or worthlessness; [d]ifficulty concentrating or thinking and thoughts of suicide;" and 12.08A145 Personality Disorders: "[I]nflexible and maladaptive" personality traits that "cause either significant impairment in social or occupational functioning or subjective distress," as evidenced by "[s]eclusiveness or autistic thinking; . . .; [p]ersistent disturbances of mood or affect; and [p]athological dependence, passivity, or aggressivity." 20 C.F.R. Ch. III, Pt. 404, Subpt. P., App. 1 (1999). Dr. Costa wrote the following remarks on the PRT:
Mr. Banks' activities of daily living are markedly restricted because of his low self-esteem, which is evidenced by his poor grooming and personal hygiene. In addition, his severe lung disease drastically limits his functional capacity.
Mr. Banks avoids personal relationships, and isolates himself as a result. He is incapable of participating in normal social contact.
The combination of his severe lung disease and depression prevents a capacity to perform at a reasonable level of concentration. These impairments would likely cause frequent lapses in any series of activities.
. . . It would likely be that he would withdraw from any stressful situation in a work or work-like environment.
(Tr. 531).
Records show Banks continued with individual psychotherapy into 1997. On February 13, 1997, Horsley noted that Banks was "making small amount of progress" and that therapy was aimed at getting Banks "to appreciate his assets and to live realistically within the limits of his disabilities." (Tr. 546). In March, Horsley's notes show ongoing discussions about Banks' personal relationship problems. There is also a note in March that Banks began vocational rehabilitation training which was expected to be slow because of Banks other therapy and treatment. In May, Banks told Horsley he felt "the lowest he's felt since starting therapy." (Tr. 586). Dr. Pope adjusted his medications without a noticeable change in Banks' condition and ongoing problems with sleep. In June, Dr. Pope reviewed the more than ten medications that Banks was taking and noted that Banks was "quite withdrawn and apathetic" and that his "[d]epression is bad but he is not suicidal." (Tr. 588). Dr. Pope directed Banks to resume his individual therapy. His therapist later in June observed that Banks lacked inner motivation and opined that Banks' depression was "melancholic." (Tr. 589).
Banks was a patient at the VA Hospital from June 26, 1997, through August 14, 1997, after being stabbed in the abdomen on June 25, 1997. Banks initially claimed the wound was self-inflicted but subsequently admitted his ex-girlfriend had stabbed him. After he was stabilized, his anti-depressants were resumed on July 7, 1997, because of his depression and labile effect. A month later, Dr. Pope still believed it was not safe for Banks to leave the hospital due to Banks' continued lability. (Tr. 723). Upon discharging Banks on August 14, 1997, Dr. Pope wrote in the discharge summary that Banks was not "capable of returning to work due to his chronic depression and pulmonary disease" and that Banks' GAF was 30.
ANALYSIS AND DISCUSSION
Convinced that the medical evidence of record overwhelmingly contradicts the evidence cited in support of the Commissioner's decision, the court will focus its discussion on those issues which most plainly reveal the lack of substantial evidence.
Mental Impairment and Treating Physicians' Opinions "Generally, the ALJ must give controlling weight to a treating physician's well supported opinion about the nature and severity of a claimant's impairments." Adams v. Chater, 93 F.3d 712, 714 (10th Cir. 1996). See Castellano v. Secretary of Health Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994) (The opinion is entitled to controlling weight "if it is well supported by clinical and laboratory diagnostic techniques and if it is not inconsistent with other substantial evidence in the record."). "The [Commissioner] must give substantial weight to the evidence and opinion of the claimant's treating physician, unless good cause is shown for rejecting it. If an ALJ rejects the opinion of a treating physician, he or she must articulate specific, legitimate reasons for doing so." Washington v. Shalala, 37 F.3d at 1440 (citation and quotations omitted); see Ward v. Apfel, 65 F. Supp.2d at 1215. A treating physician's opinion may be rejected if his or her conclusions are not supported by specific findings, Castellano, 26 F.3d at 1029 (citing in part 20 C.F.R. § 404.1527(d)), or by clinical and/or laboratory diagnostic techniques; if they are inconsistent with other substantial evidence in the record, 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2); Castellano, 26 F.3d at 1027; or if they are brief, conclusory, and unsupported by medical evidence," Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987). A treating physician's opinion that a patient is disabled is not dispositive, because the disability determination rests ultimately with Commissioner. Castellano, 26 F.3d at 1029.
As laid out in some detail above, two of Banks' treating physicians, Dr. Costa and Dr. Pope, opined that he was unable to work because of his mental impairment and COPD. Dr. Costa, in his letter dated June 25, 1996, and later in the PRT completed November 8, 1996, outlined his diagnoses, articulated the severity of Banks' conditions, and opined that Banks was socially isolated, lacked a capacity to concentrate reasonably and is likely to have frequent lapses, to experience deterioration in a work environment, and to withdraw from any stressful situation encountered with work. In October of 1996, Dr. Pope who was treating Banks and monitoring Banks' medications wrote in his treatment notes that Banks felt lost, cries frequently, and is "unable to get anything done, locks himself in the house," and is "extremely anxious." Dr. Pope included in his notes that he believed Banks was "unable to work in any capacity due to physical and mental problems." (Tr. 572). In August of 1997, Dr. Pope repeated this conclusion: "the patient is felt to not be capable of returning to work due to his chronic depression and pulmonary disease." (Tr. 698).
Instead of relying on the opinions of these treating physicians, the ALJ looked to the testimony of psychologist, George Chance, who appeared at the hearing as a medical expert and whose knowledge of Banks' mental impairment was limited to what he had learned from reviewing Banks' medical records through May of 1996, including Dr. Costa's letter of June 25, 1996. The ALJ gave more weight to Dr. Chance's opinion than those of the plaintiff's treating physicians. Indeed, the ALJ concluded that Dr. Chance's opinion was "reasonable and unimpeached, and in accordance with objective medical evidence of record." (Tr. 28). The ALJ concluded "that Dr. Costa's opinion as to the severity of claimant's psychiatric condition is not supported by the totality of the medical evidence, particularly Dr. Costa's own evaluation of claimant in January 1996." (Tr. 28).
The court realizes the ALJ did not have access to Dr. Pope's notes prior to issuing his decision. The Appeals Council, however, did receive these notes and summarily concluded that the additional evidence did not provide "a basis for changing the Administrative Law Judge's decision." (Tr. 4). The Appeals Council gave no specific reasons for this finding. Additional evidence presented to the Appeals Council is considered only to the extent of being new, material and relevant to the period on or before the ALJ's decision. See 20 C.F.R. § 404.970(b), 416.1470(b); O'Dell v. Shalala, 44 F.3d at 859. Because it did not follow the procedure at 29 C.F.R. § 404.976(b)(1), the Appeals Council presumably concluded these notes and all other records submitted to them related to the alleged disability period decided by the ALJ. The court's "review of the Commissioner's decision is hindered by the Appeals Council's failure to provide any explanation of its evaluation of the additional evidence before it." See Hodgson v. Apfel, 172 F.3d 62, 1999 WL 46689, at *4 (10th Cir. Feb. 3, 1999) (Table). Hindered by the lack of any explanation for the Commissioner's evaluation of Dr. Pope's notes, the court cannot conclude that substantial evidence supports the Commissioner's denial of benefits. More importantly, "the Appeals Council, which simply `concluded [without explanation] that . . . the additional evidence provides [no] basis for changing the [ALJ's] decision,' clearly did not give the `specific, legitimate reasons' necessary to justify rejection of a treating physician's opinion." Aragon v. Apfel, 166 F.3d 1220, 1998 WL 889400, at *3 (10th Cir. Dec. 22, 1998) (quoting Miller v. Chater, 99 F.3d 972, 976 (10th Cir. 1996) (further quotation omitted)). The court cannot affirm the Appeals Council's reflexive confirmation of the ALJ's determination when additional evidence in the form of medical records and notes from other treating physicians, sustain the medical opinions rejected by the ALJ and contradict the consulting opinions adopted by the ALJ.
The court finds that neither the ALJ nor the Appeals Council articulated specific and legitimate reasons for rejecting the treating physicians' opinions and gave those opinions the substantial weight they plainly deserved. The only medical evidence specifically cited by the ALJ as not supporting Dr. Costa's opinion is Dr. Costa's own evaluation of Banks in January 1996 and a report from consulting psychologist, Carroll Ohlde. The ALJ keyed on Dr. Costa's mental status exam conducted during his initial evaluation interview, which consisted of nothing more than some formal testing of memory and the physician's own observations made while taking the psychosocial history. The ALJ pointed out that Dr. Costa considered Banks to have been cooperative, a fairly reliable historian, fully oriented with no current suicidal ideation, exhibiting compulsive behavior that was not significantly impairing and a somewhat constricted affect but with fair eye contact and no outwardly apparent anxiety. In sum, the ALJ rejected Dr. Costa's opinion letter written after weeks of individual therapy sessions with Banks, simply because it was not fully consistent with Dr. Costa's initial observations made only after his first interview of Banks.
The flaws with the ALJ's reasoning are apparent. First, Dr. Costa's report shows the mental status examination was only one part of the assessment and testing of Banks that would be continued in the mental health clinic. Second, it is unreasonable to expect Dr. Costa to have drawn a conclusive impression about Banks' mental problems after only an initial interview. Third, the ALJ rejected Dr. Costa's opinion without considering that he had evaluated Banks' current GAF at 39 in the January report and in the November letter. A GAF score of 39 indicates "major impairment in several areas such as work or school, family relations, judgment, thinking or mood." American Psychiatric Assoc., Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (4th ed. 1994). An ALJ may not cite only those portions of Dr. Costa's report favorable to his decision and ignore other parts. Chester v. Apfel, 182 F.3d 931, 1999 WL 360176, at *4 (10th Cir. Jun. 4, 1999). Fourth, the ALJ failed to consider and discuss the specific factors relevant in determining whether other medical evidence outweighs the treating physicians' reports. See Goatcher v. United States Dept. of Health and Human Servs., 52 F.3d 288, 289-90 (10th Cir. 1995). Fifth, Dr. Costa's opinions are consistent with his own treatment notes and those of Gail Horsley and Dr. Pope, as well as, Dr. Bickelhaupt, and the individual psychological assessment performed by Dr. McQueeney in April of 1996. Even the opinion of consulting psychologist, Arthur McKenna, is generally consistent as to Bank's emotional state and his difficulties with attention and concentration in a work environment.
As stated in Goatcher, the ALJ must consider the following factors:
"(1) the length of the treatment relationship and frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion. 20 C.F.R. § 404.1527(d)(2)-(6)."52 F.3d at 290; see also Bowman v. Apfel, 221 F.3d 1351, 2000 WL 1034628, at *2-*3 (10th Cir. Jul. 27, 2000).
The only physicians having conflicting opinions are Dr. Ohlde, who gave his diagnosis after a single interview conducted at the request of the SSA, and Dr. Chance, who gave his opinion without having interviewed Banks and without having reviewed many of the mental health treatment records that are found in this record. Dr. Ohlde's impression after a single interview is overwhelmingly contradicted by the mental health treatment notes from 1996 and 1997 repeatedly showing Banks to have been "very depressed," "extremely anxious," and "quite withdrawn and apathetic." As for Dr. Chance, his testimony consists of nothing more than a series of briefly stated conclusions and opinions with no explanations required or offered in support. The PRT prepared by Dr. Costa plainly offers more details and explanations than the testimony of Dr. Chance.
Here is the pertinent series of questions and answers:
Q. Tell me how you would restrict his activities of daily living?
A. Judge, that is slight based on my reading of the record.
Q. Difficulties in maintaining social functioning?
A. Slight.
Q. Deficiencies of concentration, persistence or pace?
A. Based on the mental factors that I read, it would be seldom.
Q. And lastly, episodes of deterioration or decompensation in work or work like settings?
A. Once or twice.
Q. So apparently, if your evaluation is correct, you would not feel he would come close to meeting either or both 12.04 or 12.08 listings, is that correct?
A. That's correct.
(Tr. 65-66).
Contrary to the ALJ's finding, "the totality of the [credible] medical evidence" fully supports Dr. Costa's opinions found in the PRT. The treatment notes cited and discussed show Banks' daily living activities to be markedly restricted. He was described as being "homebound most days" (Tr. 467), as crying uncontrollably, and as feeling lost to the point that he "locks himself in the house." (Tr. 572). As far as ability to participate "in normal social contact," (Tr. 531), the treatment notes do not show Banks to have been involved in any stable ongoing relationships. What Dr. Ohlde described as an adequate relationship between Banks and his girlfriend is shown in the treatment notes as unstable, irrational, and so abusive that it culminated in the girlfriend stabbing Banks. The medical evidence also supports the conclusion that Banks would have serious difficulty maintaining the level of concentration needed to work and would likely experience frequent lapses in concentration and withdraw from any stress or work-like environment. The treatment notes are replete with references that he was receiving too little or too much sleep; that he felt lost, purposeless, hopeless and unable to do anything; that he has "serious problems in thinking" and is likely to have "faulty conceptualization" during stressful times; (Tr. 514) and that he is impulsive and retreats to his trailer.
In sum, Dr. Costa's opinions, as well as those of Dr. Pope, are supported by medical evidence of record and should have been given substantial weight. As physicians requested by the SSA either to evaluate Banks on one occasion or to review some of Banks' mental health records, Dr. Ohlde and Dr. Chance may be capable of rendering opinions, but their opinions carry little weight when so overwhelmingly contradicted by the totality of the medical evidence. "[O]pinions of physicians `who have treated a patient over a period of time or who are consulted for purposes of treatment are given greater weight than are reports of physicians employed and paid by the government for the purpose of defending against a disability claim.'" Talbot v. Heckler, 814 F.2d 1456, 1463 (10th Cir. 1987) (quoting Broadbent v. Harries, 698 F.2d 407, 412 (10th Cir. 1983)). The ALJ did not apply the correct legal standards in considering and assessing the treating physicians' opinions.
Credibility Findings of Claimant's Testimony "Generally, credibility determinations are the province of the ALJ, `the individual optimally positioned to observe and assess witness credibility.'" Adams v. Chater, 93 F.3d at 715 (quoting Casias v. Secretary of Health Human Servs., 933 F.2d at 801). Consequently, a "court ordinarily defers to the ALJ as trier of fact on credibility, . . . [but] deference is not an absolute rule." Thompson v. Sullivan, 987 F.2d at 1490 (citations omitted). It is "recognize[d] that some claimants exaggerate symptoms for purposes of obtaining government benefits, and deference to the fact-finder's assessment of credibility is the general rule." Frey v. Bowen, 816 F.2d at 517. Thus, a court "will not upset such [credibility] determinations when supported by substantial evidence." Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995) (internal quotation omitted).
The court does not find substantial evidence in the record showing that Banks' daily activity level is inconsistent with his claimed disability. A claimant "need not prove that her pain precludes all productive activity and confines her to life in front of the television." Baumgarten v. Chater, 75 F.3d 366, 369 (8th Cir. 1996) (citation omitted). Evidence that a claimant engages in limited activities may be considered, along with other relevant evidence, in considering entitlement to benefits. Gay v. Sullivan, 986 F.2d 1336, 1339 (10th Cir. 1993). The record is not sufficient for the ALJ to have concluded that Banks' ability to babysit a child occasionally equates with the ability to hold a regular sedentary job. "`Occasional symptom-free periods — and even the sporadic ability to work are not inconsistent with disability.'" Reddick v. Chater, 157 F.3d 715, 724 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821,833 (9th Cir. 1995)).
Citing 20 C.F.R. § 404.1530 and 416.930, the ALJ found that Banks' failure to follow his physicians' recommendations to stop smoking record "weigh[ed] heavily against" Banks' allegations of a disabling COPD. (Tr. 26). Benefits cannot be denied pursuant to these sections, unless there is a finding supported by substantial evidence that the prescribed treatment "should be expected to restore the claimant's ability to work." Teter v. Heckler, 775 F.2d 1104, 1107 (10th Cir. 1995). The Seventh Circuit discussed this analysis with respect to COPD and a claimant who kept smoking:
In Rousey [ v. Heckler], [ 771 F.2d 1065, 1069 (7th Cir. 1985)], we reversed an ALJ's denial of benefits premised in part on the claimant's failure to quit smoking where the claimant suffered from chronic obstructive pulmonary disease. We held that no evidence demonstrated that she would be restored to a non-severe condition if she quit smoking. Id. We similarly denounced the ALJ's conclusion that her smoking rendered incredible her allegations of pain because no medical evidence linked her chest pain directly to her smoking. Therefore, the ALJ erred in relying on her failure to quit smoking as evidence of noncompliance and as a basis to find her incredible. We note that even if medical evidence had established a link between smoking and her symptoms, it is extremely tenuous to infer from the failure to give up smoking that the claimant is incredible when she testifies that the condition is serious or painful. Given the addictive nature of smoking, the failure to quit is as likely attributable to factors unrelated to the effect of smoking on a person's health. One does not need to look far to see persons with emphysema or lung cancer — directly caused by smoking — who continue to smoke, not because they do not suffer gravely from the disease, but because other factors such as the addictive nature of the product impacts their ability to stop. This is an unreliable basis on which to rest a credibility determination.Shramek v. Apfel, 226 F.3d 809, 2000 WL 1234614, ¶. 19-20 (7th Cir. Sep. 1, 2000). In short, the ALJ erred in judging Banks' credibility relying on his failure to stop smoking and erred in considering it as a ground for denying benefits under 20 C.F.R. § 404.1530 and 416.930 without making all the required findings or having substantial evidence in the record to sustain them.
When considering the combined effect of his physical and mental impairments, the record does not establish marked differences between the claimant's assessment of his restrictions and those assessments made by the treating physicians near in time. The opinions of Dr. Costa and Dr. Pope are generally consistent with what the plaintiff described as his restricted activities.
For all of the above reasons, the ALJ's finding that Banks is capable of performing a narrow range of sedentary work is not supported by substantial evidence. "Because sedentary work is the lowest classification under the statute, there is no need for further proceedings in this matter other than a remand for an award of benefits." Sisco v. U.S. Dept. of Health and Human Services, 10 F.3d 739, 745-46 (10th Cir. 1993). "`Outright reversal and remand for immediate award of benefits is appropriate when additional fact finding would serve no useful purpose.'" Sorenson, 888 F.2d at 713 (quoting Williams, 844 F.2d at 760). The vocational expert testified that the hypothetical claimant could not be gainfully employed if he had marked restrictions in daily living activities, marked difficulties in maintaining social functions and frequent deficiencies in concentration, persistence and pace. (Tr. 72). The evidence of record, in particular the opinions of Banks' treating physicians, is more than substantial that the plaintiff has an impairment, when considered in combination, that meets the criteria contained in 20 C.F.R. Pt. 404, Subpt. P, App.1, 12.04(A)(1) and 12.08(A)(1, 4, and 5) and that this impairment precludes him during the relevant time period from engaging in any full-time sedentary work.
IT IS THEREFORE ORDERED that the Commissioner's decision denying benefits to the plaintiff is reversed, and the case is remanded to the Commissioner for an immediate award of benefits.