Opinion
Civil Action No. 03-12540-PBS.
March 15, 2005
MEMORANDUM AND ORDER
I. INTRODUCTION
Plaintiff Michael Critch, who suffered a subarachnoid hemorrhage and ruptured berry aneurysm, seeks review of the denial of his application for Social Security Disability Insurance and Supplemental Security ("SSDI") benefits from March 2001 until March 2002. The Court ALLOWS plaintiff's motion to remand the final decision of the Commissioner and DENIES defendant's motion to affirm the decision of the Commissioner.
Subarachnoid is defined as underneath the arachnoid membrane that forms the middle of the three coverings of the central nervous system. Stedman's Medical Dictionary 118, 1715 (27th ed. 2000).
"A small sacular aneurysm of a cerebral artery that resembles a berry, such aneurysm can rupture causing a subarachnoid hemorrhage." Id. at 79.
II. STATEMENT OF FACTS
The administrative record contains the following facts. Mr. Michael Critch ("Critch") is a forty-seven-year-old man with a college education. Prior to his brain aneurysm hemorrhage, he worked as a piano player at a restaurant and as a piano teacher. He has a strong family history, as his father died suddenly of ruptured multiple intracranial aneurysms. (R. at 440.)On March 8, 2001, Critch was admitted to Cape Cod Hospital for a subarachnoid hemorrhage and a ruptured berry aneurysm, and underwent emergency surgery to relieve the pressure on his brain. He had a rather difficult time following this surgery. (R. at 440.) On March 21, 2001, he was transferred to the Rehabilitation Hospital of the Cape and Islands, where he underwent physical, occupational, and speech therapy. During speech therapy, Critch experienced a facial seizure, for which he was returned to Cape Cod Hospital. Critch returned to the rehabilitation hospital after Dr. Patrick Murray determined that his seizures were the result of his underlying brain injury.
Critch was discharged from the rehabilitation hospital on April 20, 2001. While Dr. Jay Rosenfeld reported that Critch had achieved "independence" in all activities of daily living at the hospital (like bathing and toileting), Critch continued to suffer "some decreased temporal awareness," "some mild to moderate difficulty at times" with auditory concentration, and needed speech/language pathology services. Dilantin was prescribed for his face twitching, which appeared to be seizure activity. (R. at 172.)
Given the severity of the initial cognitive deficit, Critch made remarkable progress. On May 3, 2001, Dr. Murray reported the presence of additional multiple aneurysms, but noted that Critch's memory, learning, and leg weakness were improving. (R. at 442.) Dr. Murray was pleased to see how well he was doing. (R. at 443.) On May 31, 2001, Dr. Rosenfeld reported that Critch was sleeping well, walking without an assistive device, and not experiencing any significant headaches, seizures, or dizziness. However, Critch did have occasional problems with his working memory and with relearning music, and experienced mild fatigue on repetitive manual muscle testing. (R. at 392.)
On June 6, 2001, Dr. Norman Bass, a neurologist, reported improvement in Critch's focus and attention, but impaired memory and slow processing. Critch had returned to work as a jazz pianist and was confident that he would be resuming full activities. Dr. Bass prescribed that Critch continue to take Dilantin and gave Critch permission to drive. (R. at 469.)
On June 15, 2001, during a neuropsychological evaluation, Critch reported to Dr. Linda Zoe Podbros that he was not currently depressed, although his piano playing gigs were harder due to memory problems in recalling notes and the order of songs. He had mild anxiety and mild reactive depression. Dr. Podbros found that Critch had a "substantial impairment in his visual memory." (R. at 396.) She also reported substantial improvement in "executive control functions, attention, visual integrative abilities, and memory." (R. at 396.) She pointed out that Critch was on Dilantin, adding, "Given the cognitive depressive effect of Dilantin, he is expected to experience greater alertness and cognitive flexibility at the point when he no longer needs to be on it." (R. at 397.)
On July 12, 2001, Critch was evaluated by Dr. Jeffrey E. Twarog at the request of the Massachusetts Rehabilitation Commission Disability Determination Services. Critch described ongoing difficulty with his memory and complained of back pain that interfered with his ability to sit the two to three hours a day necessary to practice piano. Dr. Twarog diagnosed organic cognitive dysfunction with a guarded prognosis, noting Critch's "significant auditory memory loss and also significant impairment in the area of auditory processing." (R. at 407.) He also noted that Critch was "dealing with anxiety and depression." (R. at 406-07.)
On July 23, 2001, Dr. Nancy Keuthen reviewed Critch's records, and characterized Critch as moderately limited in his abilities to understand, recall, and carry out detailed instructions; to complete a normal work week without interruptions and to perform at a consistent pace without unreasonable breaks; to respond to changes in the work setting; and to maintain concentration, persistence, and pace. (R. at 409-10, 430.)
On July 26, 2001, Critch was again examined by Dr. Bass, who noted that Critch had returned to "full activities" (including driving), but that he did not play the piano as well as he had. (R. at 437.) Dr. Bass prescribed that Critch continue taking Dilantin. (R. at 437.)
Critch was admitted to Massachusetts General Hospital on October 5, 2001 for surgical treatment of his remaining aneurysms. On follow up, his surgeon, Dr. Christopher Ogilvy, reported that he was doing "well," with no specific complaints. (R. at 479.)
On December 14, 2001, Dr. Donald S. Marks conducted a consultative neurological exam of Critch, who had complaints of fatigue and excessive sleepiness. Dr. Marks noted that Critch was able to play piano, after getting assistance from his former teacher at Berkley, but experienced some trouble with grounding rhythms and had some drifting of his hands. Critch was able to do complex calculations and showed little "high level cognitive disturbance," although he was still on Dilantin, which could cause "cognitive fogging." Dr. Marks also prescribed Prozac. (R. at 462-63.)
Critch returned to see Dr. Marks on February 4, 2002. Dr. Marks was concerned with Critch's medications, noting that Prozac "hadn't worked" and that in some individuals, Dilantin may be "quite sedating and slowing of cognition." (R. at 459.) He suggested weaning Critch from his medications because Critch was not pleased with his level of cognitive function. (R. at 459.) However, Marks had an ongoing concern about seizures and prescribed Topomax, an anticonvulsant and mood stabilizer. (R. at 237.)
Critch underwent a neuropsychological evaluation on June 10, 2002. Dr. Marie M. Walbridge, Ph.D., noted that Critch's processing was slow, his affect was flat, he became very fatigued, and his mood was depressed. The doctor administered the Weschler Adult Intelligence Scale-III. Critch was functioning in the average range for verbal and the borderline range for non-verbal/visual intellectual functions. Dr. Walbridge also performed the Beck Depression Inventory, which indicated that Critch had severe clinical depression. (R. at 489-93.) She concluded that based on his "level of severity and pattern of cognitive impairments, he is not able at this time to work on a full-time basis or to provide for himself." (R. at 492.)
On June 19, 2002, Dr. Marks reported that he had substituted Topomax for Dilantin but that Critch felt just as fatigued. (R. at 494.) Also, Critch had experienced a "worsening of lethargy on Prozac." Dr. Marks opined that "on the basis of his prior aneurysmal surgery and frontal lobe impairments particularly on the right that he is likely disabled for the foreseeable future from gainful employment." (R. at 495.) He agreed, however, that Critch would be capable of doing some limited activities "such as teaching music to a few students here and there." (R. at 495.)
III. ADMINISTRATIVE PROCEEDINGS
Critch filed an application for Social Security Disability and Supplemental Security Income benefits on March 28, 2001, alleging that he had been disabled since March 8, 2001. His claim was denied initially and on reconsideration. (R. at 58, 63.) Critch then requested a hearing before an Administrative Law Judge ("ALJ").
At the hearing on September 13, 2002, Critch testified that teaching piano lessons "fatigued [him] a lot more than it did before" and that he "couldn't really keep up with it" because he "couldn't read the music as well," had to relearn the music he was teaching, and "couldn't really teach the advanced students that [he] had before." (R. at 36, 41.) He also reported that "to recover from working a three-hour job" playing piano he had to "sleep like sixteen hours." (R. at 45.) He claimed that he still had "memory problems" and never knew when his memory was going to fail, and also had "a lot of fatigue problems." (R. at 35, 36.)
The ALJ found that Critch was "engaged in substantial gainful activity since April 2002 as he has earned more than $700 on average per month" as a pianist since that date, but "did not engage in substantial gainful activity from March 2001 through March 2002, a continuous period of 12 months." (R. at 21-22.) During that time period, following his initial surgery, Critch had a "moderate limitation of his memory and fatigue due to his medications." (R. at 24.) However, the ALJ concluded that Critch's "medically determinable cerebrovascular disease" and "limited memory and fatigue would not have significantly limited his ability to perform his past work as a piano teacher within 12 months of his onset date." (R. at 25.) The ALJ also concluded that the two June 2002 medical assessments of Critch's impairment to full-time work were "not entitled to probative value" because Critch by that time was "engaged in substantial gainful activity." (R. at 24.)
The ALJ issued his final decision on January 25, 2003, affirming the denial of Critch's application for benefits. The Appeals Council denied Critch's request for review, making the ALJ's decision the final decision of the Commissioner. (R. at 10.)
IV. STANDARD
A. Disability Determination Process
The Commissioner has developed a five-step sequential evaluation process to determine whether a person is disabled.See Goodermote v. Sec'y of Health Human Serv., 690 F.2d 5, 6-7 (1st Cir. 1982); 20 C.F.R. § 404.1520. "Step one determines whether the claimant is engaged in `substantial gainful activity.' If he is, disability benefits are denied. If he is not, the decisionmaker proceeds to step two, which determines whether the claimant has a medically severe impairment or combination of impairments." Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987) (citation omitted). That determination is governed by the "severity regulation," which provides:
If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience.20 C.F.R. §§ 404.1520(c), 416.920(c). "Basic work activities" are defined as "the abilities and aptitudes necessary to do most jobs." §§ 404.1521(b), 416.921(b). The severity regulation requires the claimant to show that he or she has an "impairment or combination of impairments which significantly limits . . . the abilities and aptitudes necessary to do most jobs." Bowen, 482 U.S. at 146 (quoting 20 C.F.R. §§ 404.1520(c), 404.1521(b)).
If the Social Security Commissioner determines that the claimant has a severe impairment, the third step is determining whether that impairment, or set of impairments,
is equivalent to one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity . . . If the impairment is not one that is conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents the claimant from performing work he has performed in the past. If the claimant is able to perform his previous work, he is not disabled. If the claimant cannot perform this work, the fifth and final step of the process determines whether he is able to perform other work in the national economy in view of his age, education, and work experience. The claimant is entitled to disability benefits only if he is not able to perform other work.Id. at 141-42 (citations omitted).
Throughout most of the five-step disability determination process, the burden of proof is on the claimant. See id. at 146 n. 5. At the fifth step, however, the burden shifts to the Commissioner, who must provide substantial evidence that the claimant is able to perform work in the national economy. See id.
B. Standard of Review
Judicial review of SSDI determinations is available under 42 U.S.C. § 405(g), which provides, in part:
Any individual, after any final decision of the Commissioner . . . made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner . . . may allow. . . . The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . ., with or without remanding the cause for a rehearing. The findings of the Commissioner . . . as to any fact, if supported by substantial evidence shall be conclusive. . . .
In reviewing decisions in such cases, district courts do not make de novo determinations. Lizotte v. Sec'y of Health Human Serv., 654 F.2d 127, 128 (1st Cir. 1981). Instead, this Court "must affirm the [Commissioner's] findings if they are supported by substantial evidence." Cashman v. Shalala, 817 F. Supp. 217, 220 (D. Mass. 1993); see also Rodriguez Pagan v. Sec'y of Health Human Serv., 819 F.2d 1, 3 (1st Cir. 1987) (stating that the Commissioner's determination must be affirmed, "even if the record arguably could justify a different conclusion, so long as it is supported by substantial evidence").
Substantial evidence is "more than a mere scintilla."Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotingConsol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence means such relevant evidence as a "reasonable mind, reviewing the evidence in the record as a whole, [would] accept . . . as adequate to support [a] conclusion." Ortiz v. Sec'y of Health Human Serv., 955 F.2d 765, 769 (1st Cir. 1991) (citing Rodriguez v. Sec'y of Health Human Serv., 647 F.2d 218, 222 (1st Cir. 1981)). In reviewing the record for substantial evidence, "[i]ssues of credibility and the drawing of permissible inference from evidentiary facts are the prime responsibility of the [Commissioner]." Rodriguez, 647 F.2d at 222 (quoting Rodriguez v. Celebrezze, 349 F.2d 494, 496 (1st Cir. 1965)). When there is a conflict in the record, the Commissioner has the duty to weigh the evidence and resolve material conflicts in testimony. See Richardson, 402 U.S. at 399; Ortiz, 955 F.2d at 769.
In addition to considering whether the Commissioner's decision was supported by substantial evidence, the Court must consider whether the proper legal standard was applied. "Failure of the [Commissioner] to apply the correct legal standards as promulgated by the regulations or failure to provide the reviewing court with the sufficient basis to determine that the [Commissioner] applied the correct legal standards are grounds for reversal." Weiler v. Shalala, 922 F. Supp. 689, 694 (D. Mass. 1996) (citing Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982)).
V. DISCUSSION
Critch argues that the Commissioner's decision should be reversed because the ALJ failed to evaluate properly his subjective complaints of fatigue, depression, and memory loss, which he claims are so severe as to preclude him from performing his past relevant work.
In evaluating subjective complaints, the ALJ must first determine whether there is a "clinically determinable medical impairment that can reasonably be expected to produce the pain [or fatigue] alleged." Avery v. Sec'y of Health Human Serv., 797 F.2d 19, 21 (1st Cir. 1986) (setting forth factors for assessing subjective complaints of pain); see also Oliveras v. Shalala, 870 F. Supp. 411, 415-16 (D. Mass. 1994) (considering complaints of pain and fatigue in light of the factors listed in 20 C.F.R. § 416.929(c)(3)). When evaluating the clinical evidence, the ALJ should also consider "other evidence including statements of the claimant or his doctor, consistent with the medical findings." Id. However, this does not mean that "any statements" of subjective symptoms go into the weighing. Id. The ALJ, in resolving conflicts of evidence, may determine that the claimant's subjective complaints concerning his condition "are not consistent with objective medical findings of record" if the ALJ's determination is supported by evidence in the record.Evangelista v. Sec'y of Health Human Serv., 826 F.2d 136, 141 (1st Cir. 1987).
With this evidence, the ALJ must "evaluate the intensity and persistence of [the claimant's] symptoms so that [it] can determine how [the] symptoms limit [the claimant's] capacity for work." 20 C.F.R. § 404.1529(c). The regulations recognize that a person's symptoms may be more severe than the objective medical evidence suggests. See 20 C.F.R. § 404.1529(c)(3). Therefore, the regulations provide six factors (the Avery factors) that will be considered when an applicant alleges pain or other symptoms:
Considerations capable of substantiating subjective complaints of pain [or other symptoms] include evidence of (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the pain [or other symptom]; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness and side effects of any medication taken to alleviate the pain or other symptoms; (5) treatment, other than medications, received to relieve pain or other symptoms; and (6) any other factors relating to claimant's functional limitations and restrictions due to pain [or other symptoms].Adie v. Comm'r, Soc. Sec. Admin., 941 F. Supp. 261, 269 (D.N.H. 1996) (citing 20 C.F.R. § 404.1529(c)(3)); see Avery, 797 F.2d at 23).
The ALJ's credibility determination "is entitled to deference, especially when supported by specific findings." Frustaglia v. Sec'y of Health Human Serv., 829 F.2d 192, 195 (1st Cir. 1987) (citations omitted). However, an ALJ that does not believe a claimant's testimony regarding his symptoms "must make specific findings as to the relevant evidence he considered in determining to disbelieve the [claimant]." Da Rosa v. Sec'y of Health Human Serv., 803 F.2d 24, 26 (1st Cir. 1986); see also Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements, 61 Fed. Reg. 34,483, 34,485-86 (1996) ("[w]hen evaluating the credibility of an individual's statements, the adjudicator must . . . give specific reasons for the weight given to the individual's statements" and "the reasons for the credibility finding must be grounded in the evidence and articulated in the determination or decision").
In determining the severity of a claimant's symptoms, "the absence of objective medical evidence supporting an individual's statements about the intensity and persistence of pain or other symptoms is only one factor that the adjudicator must consider in assessing an individual's credibility." 61 Fed. Reg. at 34,487;see also Berrios Lopez v. Sec'y of Health Human Serv., 951 F.2d 427, 429 (1st Cir. 1991) (upholding ALJ's evaluation discrediting claimant's pain where the ALJ noted observations of claimant at the hearing and where claimant also performed household chores);Gordils v. Sec'y of Health Human Serv., 921 F.2d 327, 330 (1st Cir. 1990) (upholding denial of benefits where ALJ described claimant's daily activities as "practically intact" and evaluated her demeanor at the hearing in addition to objective medical evidence).
In the present case, the only time period at issue is the year following the aneurysm from March 2001 to March 2002. Claimant argues that the ALJ failed to consider the combined impact of his memory impairment, depression, and fatigue on his ability to engage in his past relevant work. Plaintiff presented undisputed evidence of a medically determinable cerebrovascular disease that could reasonably be expected to produce these symptoms. Claimant had two brain surgeries over the course of the year. His auditory and visual memory loss was documented by psychological and neuropsychological testing. With respect to fatigue, the treating physician opined that it was a side effect of Critch's seizure medication.
While the ALJ acknowledged moderate limitations of Critch's memory and fatigue, and a "significant decrease in auditory, memory function," he disbelieved the severity of the symptoms primarily for two reasons. First, the ALJ disagreed with Dr. Marks' opinion that defendant could not work full time due to impairment because he was substantially employed as of April 2, 2002. While this is true — and claimant's progress was remarkable — the ALJ does not address the combined effects of the fatigue and memory loss for the initial year while claimant was recovering from the significant cognitive deficits caused by the brain surgery, persistent seizures, and seizure medications. His ability to perform after April 2, 2000, while relevant, does not undercut his claimed inability to perform his past relevant work as a piano player and teacher during the post-operative year. Indeed, Critch's capacity to make an average of $700 a month (not a lot) after April 2, 2000 is consistent with Dr. Marks' opinion that Critch could engage in limited activities such as "teaching music to a few students here and there." (R. 495.)
Second, the ALJ points out that at the hearing, the claimant reported that his short-term memory loss and fatigue did not significantly limit activities of daily living like grooming, driving, reading, and socializing with friends. However, these daily activities do not demonstrate that Critch had the cognitive ability to perform or teach the piano, handle higher level students, remember music for a performance, and play multiple-hour gigs.
The primary problem with the ALJ's analysis is that he failed to consider the adverse side effects of the Dilantin and other prescriptions on Critch's ability to work as a piano teacher. Under Avery, in evaluating his subjective complaints, the ALJ had to consider the type, dosage, effectiveness and adverse side effects of medications. The ALJ failed to give adequate weight to the treating physician's evaluation of the effect of these medications, and there was no medical evidence in the record to the contrary. When the fuzziness caused by those medications is considered in combination with the undisputed significant visual and auditory cognitive deficits caused by the operation, and the depression, there is no substantial medical support in the record for the ALJ's decision to discount claimant's subjective symptoms as "moderate."
Accordingly, the case must be remanded to consider the effects of those medications in combination with Critch's other impairments in determining whether he could be employed in his profession (step four) or be engaged in substantial gainful employment (step five) between March 2001 and March 2002.
V. CONCLUSION
Plaintiff's motion to REMAND the Commissioner's decision is ALLOWED. Defendant's motion to affirm the decision of the Commissioner is DENIED.