Opinion
CAUSE NO. 1:03CV56
September 29, 2003
MEMORANDUM OF DECISION AND ORDER
I. INTRODUCTION
This matter is before the Court for judicial review of a final decision of the defendant, Commissioner of Social Security ("Commissioner"), denying the application of the Plaintiff, Beth Faurote ("the Plaintiff or "Faurote"), for Disability Insurance Benefits ("DIB") prior to March 10, 2000.
Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting.
Section 205(g) of the Social Security Act ("the Act") provides, inter alia, "[a]s part of [her] answer, the [Commissioner] shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have the 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 case for a rehearing." It also provides, "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. § 405(g).
For the following reasons, the Commissioner's final decision will be remanded.
II. THE PROCEDURAL AND FACTUAL BACKGROUND
A. The Procedural Background
On January 27, 2000, the Plaintiff filed an application for DIB, alleging an onset date of July 15, 1998. Social Security denied the Plaintiffs claim initially, and upon reconsideration. The Plaintiff then requested an administrative hearing, and on December 13, 2000, the Administrative Law Judge, Dennis R. Kramer ("ALJ"), conducted a hearing at which the Plaintiff was represented by counsel and testified. Also testifying were Dr. Robert Barkas, a vocational expert ("VE"), and Dorothy Faurote, Plaintiffs mother.
On March 21, 2001, the ALJ issued his decision wherein he made the following findings:
1. The claimant [Faurote] met the disability insured status requirements of the Act on July 15, 1998, date of her alleged disability onset, and has acquired sufficient quarters of coverage to remain insured through September 30, 2002.
2. The claimant has not engaged in substantial gainful activity since July 15, 1998.
3. The medical evidence establishes that the claimant has MS [Multiple Sclerosis], epilepsy, and experiences depression, 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.
4. The claimant's statements concerning her impairments and their impact on her ability to work are fairly credible to the extent that her testimony is supported by the evidence of record. However, her testimony does not support a disabling condition prior to March 10, 2000.
5. Prior to March 10, 2000, the claimant retained the residual functional capacity ["RFC"] to perform sedentary exertional level work activity that did not involve lifting more than 5-10 pounds occasionally, walking more than one block, standing for more than 20 minutes, sitting for more than 1 hour 30 minutes to 2 hours, or climbing ladders. Additionally, the work the claimant is capable of performing would accommodate the claimant's ability to bend, reach, climb 10 steps 4 to 5 times daily, and her ability to kneel when holding on to a support.
6. The claimant is able to perform her past relevant work in accounting.
7. The claimant is 38 years old defined as, a "younger individual."
8. The claimant has a 4 year college degree in Accounting, and at least semi skilled work experience.
9. Based on an exertional capacity for sedentary work, and the claimant's age, education, and work experience Section 404.1569 and Rule 201.28 of Regulation No. 4, Table 1, Appendix 2, Subpart P, Regulations No. 4, direct a conclusion of "not disabled."
10. Although the claimant was unable to perform the full range of sedentary work prior to March 10, 2000, and in addition to her ability to perform her past accounting work, she was capable of making an adjustment to work which exists in significant numbers in the national and regional economy. Such work includes employment as a bookkeeper with 500 jobs existing within the region in which the claimant resides, and 5,000 jobs within the State where the claimant resides. A finding of "not disabled" is therefore reached within the framework of the above-cited rule.
11. However, as of March 10, 2000, and continuing thereafter, the claimant experienced sufficient deterioration in her medical condition and significant exertional and non-exertional limitations which would not have allowed her to perform any type of sustained work activity, and also prevented her from making any type of vocational adjustment to work which exists in significant numbers in the national and regional economy.
12. The claimant has been under a "disability," as defined in the Social Security Act, since March 10, 2000, but not prior thereto ( 20 C.F.R. § 404.1520(f)).
13. Neither alcoholism, nor drug addiction are factors material to the determination of disability.
(Tr. 20m-20n).
Based upon these findings, the ALJ determined that the Plaintiff was not entitled to DIB prior to March 10, 2000. The Plaintiffs request for review by the Appeals Council was denied in December 2002, leaving the ALJ's decision as the final decision of the Commissioner. (Tr. 8-9). This appeal followed.
The Plaintiff filed her opening brief on July 30, 2003. The Commissioner responded with her "Memorandum in Support of the Commissioner's Decision" on September 9, 2003, and the Plaintiff replied on September 19, 2003.
B. The Factual Background
Faurote was 38 years old at the time of the hearing and had a college degree in accounting. (Tr. 20d). She had worked as a truck driver, cleaner, and in an accounting office. ( Id.).
Faurote's alleged impairments include multiple sclerosis, optic neuritis secondary to multiple sclerosis, seizure disorder, anxiety, cervical strain and arthritis, and cervical diskectomy at C5-6, 6-7.
Faurote was first diagnosed with multiple sclerosis when she was thirty-two (32) years old. (Tr. 129-132). She had developed some intermittent numbness in the right arm and leg. (Tr. 129). On physical examination by Dr. James Heckaman, a neurologist, on July 11, 1994, Faurote had decreased deep tendon reflexes at trace to 1+ throughout. ( Id.). She also had mild ataxia of the right upper extremity. ( Id.). An MRI of the brain and cervical spine was performed on July 11, 1994, and the findings were consistent with multiple sclerosis. (Tr. 131).
The deep tendon (or muscle stretch) reflexes are relayed over the structures of both the central and peripheral nervous symptoms. Reflexes are usually graded on a 0 to 4+ scale. A grade of 1+ is considered somewhat diminished or low normal, and a grade of 0 is considered no response. Lynn S. Bickley, Bates Guide to Physical Examination and History Taking 560 and 590 (7th ed. 1999).
Ataxia is the lack or loss of muscular coordination (the purposeful working together of groups of muscles) resulting in an irregularity of muscular movements J. E. Schmidt, M.D., Schmidt's Attorneys' Dictionary of Medicine, Volume 1 A-415 (1994). ("Schmidt's").
Unhappy with Dr. Heckaman's treatment, Faurote began seeing Dr. Ajay Gupta, another neurologist at the Caylor-Nickel Clinic ("the Clinic") on September 28, 1994. (Tr. 297). Dr. Gupta noted a history of depression, as well as possible misdirected anger and lack of concentration. (Id). Although Faurote had been on an emotional roller coaster, Dr. Gupta felt that there was no significant cognitive impairment. ( Id.). He also noted that Faurote had a history of epilepsy beginning at the age of 12 with intermittent seizures until the age of 16 and a seizure-free period from 16 to 25 years of age. ( Id.). However, she had post-partum seizures at age 25 and 26. ( Id.) No seizures occurred thereafter until 1990 after which she had three to four seizures. ( Id.) On physical examination the deep tendon reflexes were 2/4 in the upper and lower extremities, and ankle jerks were +2/4. (Tr. 298). Otherwise, the exam was normal. (Id). Dr. Gupta's diagnosis was multiple sclerosis, well-controlled seizure disorder, and depression. (Tr. 299). Faurote was prescribed Zoloft. (Id).
Zoloft is indicated for the treatment of Major Depressive Disorder, Obsessive-Compulsive Disorder, Panic Disorder, and Post-Traumatic Stress Disorder. Physicians' Desk Reference 2676-77 (57th ed. 2003) ("PDR".).
On October 17, 1995, Faurote was evaluated by Teddie L. Ramsey, a certified clinical social worker. (Tr. 292-296). Faurote was diagnosed with major depression and general anxiety disorder. (Tr. 292). Her current Global Assessment of Functioning (GAP) was rated at 48, and her highest GAP for the past year was rated at 60. ( Id.).
Global Assessment of Functioning (GAP) is the clinician's judgment of the individual's overall level of functioning. In most instances, ratings on the GAP scale are made for the current period — i.e., the level of functioning at the time of the evaluation, and for other time periods (e.g., the highest level of functioning for at least a few months during the past year). A GAP of 48 is near the top of the range described as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting). A GAP of 60 is the top of the range described as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 30-32 (4th ed. 1994).
Faurote saw Dr. Gupta on June 25, 1996, at which time she reported right arm stiffness, tingling, fatigue, and feelings of panic and stress. (Tr. 287). At that time she was taking Phenobarbital and Zoloft. ( Id.). Dr. Gupta's impression was seizure disorder under relatively good control, multiple sclerosis in remission, and "stressors." Id.
Phenobarbital is the most popular of the so-called "barbiturates", a class of medicines used as sedatives (to allay nervousness) and hypnotics (to induce sleep). Schmidt's, Vol. 3 at P-161.
Faurote was seen on November 21, 1996, by Dr. Eric Purdy, an ophthalmologist, who found her vision problems consistent with right retrobulbar optic neuritis. (Tr. 279). Dr. Purdy suggested Faurote discuss with Dr. Gupta treatment with intravenous Solu-Medrol. ( Id.). Faurote received intravenous Solu-Medrol treatment in November 1996. (Tr. 278).
Neuritis (nerve inflammation) involves the optic nerve, the nerve which carries the nerve impulses from the retina to the eyeball toward (but not all the way) the brain. When the part involved is behind the eyeball, but still within the orbit or eye socket, it is called retrobulbar neuritis. This type of neuritis is generally caused by multiple sclerosis. It is marked by pain and a rapid loss of vision. A spontaneous cure may take place in several weeks, with the full restoration of vision, but relapses may occur if the cause is not removed, and each relapse leaves some residual visual damage. Schmidt's, Vol. 3 at 0-58-9.
Solu-Medrol is indicated for many problems, including optic neuritis. PDR at 2785.
On April 21, 1997, Faurote saw Dr. Thomas L. Lazoff, a physical medicine and rehabilitation specialist, in relation to an auto accident. (Tr. 192-94). On physical examination Faurote had a trigger point in the left upper trapezius. (Tr. 193). Cervical films showed mild arthritic changes. ( Id.) Dr. Lazoff diagnosed cervical strain and recommended trigger point injections, as well as continuation of Parafon Forte Zoloft and Phenobarbital. (Tr. 194).
The trapezius is a large muscle in the upper part of the back. Schmidt's, Vol, 4 at T-54.
Parafon Forte is indicated for bone and muscle pain. Schmidt's, Vol. 3 at P-39.
On April 22, 1997, Faurote again saw Dr. Lazoff for a trigger point injection, and he recommended that she change from Zoloft to Paxil to better help manage her pain. (Tr. 191). Dr. Lazoff also suggested that Faurote take Ambien if her sleeping difficulties continued. ( Id.). Dr. Gupta agreed and prescribed Paxil for Faurote. (Tr. 275).
Paxil is indicated for the treatment of Major Depressive Disorder, Obsessive-Compulsive Disorder, Panic Disorder, Social Anxiety Disorder, Generalized Anxiety Disorder, and Post-Traumatic Stress Disorder. PDR at 1604-5.
Ambien is indicated for the short-term treatment of insomnia. PDR at 2980.
On May 19, 1997, Faurote saw Dr. Lazoff, reporting a 25% improvement, and more trigger point injections were administered. (Tr. 190). Dr. Lazoff stated that Faurote could continue her regular work status. ( Id.). On June 9, 1997, Farurote had trigger point injections for trigger points in her left upper trapezius and left sub-occipital region. (Tr. 189).
The occipital region pertains to or involves the occipital bone or back part of the skull. Schmidt's, Vol. 3 at O-10.
On June 23, 1997, Faurote reported to Dr. Lazoff that she had increasing headaches, but there were no distinct trigger points identified in the trapezius, although she did have tenderness in the occipital region as well as the trapezius. (Tr. 188). Continuation of physical therapy was recommended. ( Id.).
On July 7, 1997, Faurote called the clinic to report that she was getting a new job, but was suffering panic attacks. (Tr. 274). She had run out of Paxil due to lack of funds and wanted to go on Xanax, a change approved by Dr. Gupta. ( Id.).
Xanax is indicated for the management of Anxiety Disorder. PDR at 2794. 15
On July 28, 1997, Faurote told Dr. Lazoff that she was no longer working as a truck driver as she had a new job in the accounting department at Navistar. (Tr. 187). Dr. Lazoff recommended that Faurote use Vicodin, Parafon Forte, and Lodine as needed for pain control. ( Id.). He also recommended continuing Paxil. ( Id.).
Vicodin is indicated for the relief of moderate to moderately severe pain. PDR at 509-5 10.
On December 30, 1997, Faurote saw Dr. Gupta. (Tr. 268). Faurote's right grip was decreased, and she was having difficulty opening jars. ( Id.). However, there was no numbness in her hand. ( Id.). She reported fatigue, which was felt to be manageable. ( Id.). She was employed part-time and going to school part-time. (Tr. 268). Her medicines were Phenobarbital, Xanax, and Zoloft. ( Id.). Dr. Gupta's impression was well-controlled CPS; multiple sclerosis, in remission; and anxiety. (Tr. 267).
On June 9, 1998, Faurote saw Dr. Lazoff, and his exam revealed no changes in Faurote's condition. (Tr. 186). Dr. Lazoff's impression was chronic myofascial pain syndrome, for which he prescribed Flexeril. ( Id.).
Flexeril is indicated as an adjunct to rest and physical therapy for relief of muscle spasm associated with acute, painful musculoskeletal conditions. PDR at 1897.
Faurote saw Dr. Lazoff again on August 26, 1998, in reference to a motor vehicle accident. (Tr. 185). At that time, Faurote had increased symptomology1 in the left side of her neck and some new symptomology along the right. (Id). She was not working at that time but was a full-time accounting student. ( Id.). On physical exam she had multiple tender points in the left trapezius, and a tender point at the upper cervical region on the left. ( Id.). Dr. Lazoff gave Faurote trigger point injections, recommended physical therapy, and refilled Faurote's Vicodin and Flexeril prescriptions. ( Id.).
On October 9, 1998, Faurote saw Dr. Gupta. (Tr. 261-62). Faurote reported a decrease in her vision, noted that her eyes ached during reading, and complained of occasional right arm pain and fatigue. ( Id.).
On October 12, 1998, Faurote saw Dr. Lazoff, reporting a flare-up of her multiple sclerosis. (Tr. 184). Faurote was receiving intravenous steroids and did not believe that another trigger point injection would help, but she wanted to postpone physical therapy until she had completed treatment for the multiple sclerosis flare-up. ( Id.).
On October 13, 1998, Faurote called the Clinic twice. (Tr. 260). She reported severe pain in the left eye, which had caused her to stop studying. ( Id.). She wanted to know long to rest her eyes and was advised to reduce her studying. ( Id.).
On October 16, 1998, Faurote saw Dr. Zurcher, complaining of having had to miss school due to the flu. (Tr. 148). Dr. Gupta had put Faurote on IV steroids daily for five (5) days. ( Id.). She had a severe headache and sinusitis, slept all day, and had chills, sweats, and a fever. ( Id.). Dr. Zurcher reached no specific physical findings, although he noted that Faurote appeared pale and was obviously not feeling well. ( Id.). He suspected a viral syndrome. ( Id.).
Faurote called the Clinic again on October 16, 1998, reporting pain under her armpits and an ache in the neck. (Tr. 259). She called again on October 19, 1998, wondering how far to push herself in school and whether to drop some classes. ( Id.). Dr. Gupta recommended that Faurote reduce her class schedule if she was unable to cope physically or mentally. ( Id.).
Faurote called the Clinic again on December 2, 1998, reporting that she had fallen the day before. (Tr. 258). She thought she may have suffered a seizure in the middle of the night but was sure she had suffered one or two seizures the prior afternoon. ( Id.). She had missed none of her medicines, but felt increased stress and decreased sleep due to finals. ( Id.).
Faurote saw Dr. Lazoff on December 22, 1998, reporting exacerbation of her symptoms. (Tr. 183). A trigger point injection was given. ( Id.).
Faurote again called the Clinic on February 10, 1999, reporting anxiety and sleeping difficulty. (Tr. 256). Two days later she again reported her anxiety flaring up. ( Id.). On February 26, 1999, she reported tingling in her right arm. (Tr. 255).
Faurote saw Dr. Gupta again on March 1, 1999. (Tr. 253-54). Faurote reported numbness in, inter alia, her right arm. (Tr. 254). Dr. Gupta's impression was multiple sclerosis and depression/anxiety. ( Id.).
On March 11, 1999, Faurote called the Clinic complaining of eye pain and was told to see an eye doctor. (Tr. 251). On March 12, 1999, she reported that the eye doctor had told that her symptoms were due to "exacerbation" and the flu. ( Id.).
Faurote called the Clinic on March 11, 1999, complaining of numbness and exhaustion. (Tr. 252). On March 13 and 14, 1999, Faurote called the clinic reporting numbness and Dr. Gupta prescribed Prednisone. (Tr. 253). However, on March 15, 1999, Faurote reported that the Prednisone was making her extremely jittery. (Tr. 252). Faurote further reported that she was sleeping all of the time and Dr. Gupta wondered whether that was flu-related. ( Id.) On March 17, 1999, she informed the Clinic by phone that she was down to two pills a day on the Prednisone but had gotten no better. (Tr. 250).
On April 2, 1999, Faurote called the Clinic again complaining of numbness in the fingers, and of fatigue. (Tr. 249). Dr. Gupta felt that Faurote needed an MRI of the brain. ( Id.).
On April 12, 1999, Faurote called the Clinic stating that during the weekend she had been unable to move her right arm for about an hour. (Tr. 247). She called again on April 20, 1999, reporting that she was not feeling well and that, after she got her son off to school, she woke up and found herself lying in the hallway. ( Id.). She had slept quite a bit during the day, was forgetful, and had a headache. ( Id.)
On April 19, 1999, the MRI of Faurote's brain was done. (Tr. 139). The results indicated multiple signal abnormalities in the deep white matter periventricular and peri-atrial regions with one lesion in the left interior dorsal mid-brain compatible with a demyelinating process such as multiple sclerosis. ( Id.)
On April 23, 1999, Faurote saw Dr. Gupta and reported that she may have had a seizure the previous Tuesday and that she currently had right-hand numbness and tingling. (Tr. 246). She also reported that she was always fatigued but slept satisfactory. ( Id.). She reported taking Phenobarbital, Zoloft, Amantadine, Xanax, and Vicodin. ( Id.) Dr. Gupta found no significant functional deficit with her right hand. ( Id.). He diagnosed multiple sclerosis with a mild relapse and fatigue. (Tr. 245).
Amantadine is indicated for the prophylaxis and treatment of signs and symptoms of infection caused by various strains of influenza. PDR at 1307.
On May 10, 1999, Faurote called the Clinic and requested Avonex, which Dr. Gupta approved. ( Id.). On May 14, 1999, Faurote called the Clinic stating that she had slept ten hours the previous night, and was very tired despite only having been up for three hours. (Tr. 244). On May 18, 1999, she called the Clinic from Florida stating that she forgot to take her medicines the previous night and had possibly suffered a seizure that morning. ( Id.). She was told to go ahead with her plans if her health permitted but to refrain from driving. ( Id.) She called the Clinic on June 2, 1999, stating that she had not been sleeping well at night and might have missed a dosage of seizure medicine. (Tr. 242).
Avonex is indicated for the treatment of relapsing forms of multiple sclerosis to slow the accumulation of physical disability and decrease the frequency of clinical exacerbations. PDR at 1007-08.
On September 2, 1999, Faurote reported to the clinic that the Avonex had caused side effects. (Tr. 239). On September 20, 1999, she called in saying that she had not slept much the previous night. (Tr. 238).
On September 22, 1999, Dr. Jeffrey Kachmann, a neurosurgeon reported that Faurote was six months post-op from an anterior cervical diskectomy at C5-6, 6-7, and she had no complaints in reference to that. (Tr. 145). Dr. Kachmann told Faurote that she could return to work at full duty. ( Id.).
On October 1, 1999, Faurote called the Clinic reporting that she did not sleep at all the previous night after taking Avonex. ( Id.). She was told to take the medicine as prescribed, and to use Tylenol P.M., if necessary, to help sleep. (Id).
Faurote called the Clinic again on October 8, 1999, reporting that she had a seizure the previous night. (Tr. 237). She stated on October 12, 1999, that she burned three fingers when she had a seizure and requested medicine for a possible infection. (Id). On November 2, 1999, Neurontin was re-prescribed. (Tr. 236, 239).
Neurontin is indicated for the treatment of epilepsy. PDR at 2565-66.
Faurote was hospitalized for grand mal seizures at the Adams County Hospital from December 1, 1999, through December 2, 1999. (Tr. 167-168). She had originally come to the emergency room for a seizure, and her Neurontin was increased. (Tr. 167). However, after being released, she suffered another seizure in the parking lot. (Id). Dr. Kent Lehman diagnosed seizure disorder, multiple sclerosis, and acute sinusitis with possible allergic rhinitis. (Tr. 168). Faurote wondered whether taking a lot of over-the-counter sinus medicines might have triggered her seizures, and Dr. Lehman indicated that was possible but that fatigue and multiple sclerosis were contributing factors. ( Id.).
On December 6, 1999, Faurote saw Dr. Gupta and described to him a lifestyle occasionally characterized by late nights, lack of food, missed medicines, and alcoholic beverages. (Tr. 234). Dr. Gupta recommended lifestyle and dietary changes. ( Id.).
On December 8, 1999, Faurote called the Clinic wondering whether she should change to Depakote. (Tr. 235). Dr. Gupta responded that he would need to wean her from the Phenobarbital. ( Id.). Faurote called again on December 13, 1999, reporting a light seizure, and Depakote was prescribed at her request. ( Id.).
Depakote is indicated for the treatment of mania, epilepsy, and migraine headaches. PDR at 432-33.
On February 1, 2000, Faurote contacted the Clinic reporting that she had been fired after working a week. (Tr. 235). She also reported that she was still tired, and her right hand was still numb. ( Id.).
On March 6, 2000, Faurote saw Dr. Gupta, complaining of increased fatigue, and stating that she slept twelve hours per day. (Tr. 226). Her ankles and feet hurt, and she had bladder incontinence and hesitancy. ( Id.). She reported that her aches and pains and flu-like symptoms had lessened but that she felt depressed at not being able to hold a job. ( Id.). Dr. Gupta noted a tremor, probably an intention tremor. (Tr. 227). His impression was that Faurote's seizures were well controlled, her multiple sclerosis was in remission, and she had multi-factorial fatigue due to multiple sclerosis, medicines, and depression. ( Id.).
Intention tremor is a trembling, as of a limb, which begins or is made worse when the person attempts to perform a voluntary movement — i.e., moving a limb. Schmidt's, Vol. 2 at 1-119.
On March 8, 2000, a psychological evaluation of Faurote was performed by Dr. Susan Rudolph at the request of Social Security. (Tr. 197-199). Faurote stated that she could not handle the strain of going off to work on a daily basis as trying to work and take care of her two sons was too physically overwhelming for her, although she thought she could work part-time. ( Id.). Faurote related that she had feelings of depression and anxiety. ( Id.). She also reported that she had started taking Avonex injections which reduced the exacerbations of the Multiple Sclerosis, but the side effects of the medication caused her to have flu-like symptoms. ( Id.). She had also developed optic neuritis and frequently had "blind spots" or foggy vision. (Id). In addition, she had difficulty sleeping and complained of excessive fatigue. (Id).
Faurote also described her daily activities. (Tr. 199). She stated that she spent most of her time caring for her boys and often returned to bed after getting them to school. (Id). She said she could not get anything done due to insufficient energy. (Id). She stated that when she was working full-time she would come home after work and go immediately to bed, sleep all night, and then get up and go back to work. ( Id.). She noted that her mother had to do all the work of taking care of the boys and the house. ( Id.). Dr. Rudolph's diagnosis was Medical Problems Affecting Psychological Condition; Psychological Problems Affecting Medical Condition; and Depression and Anxiety caused by medical problems and disabilities. (Id). Faurote's current GAP was 50, and her highest in the past year was 55. (Id).
Faurote received counseling from Sally Houlihan ("Houlihan") on March 17, 2000, and April 18, 2000. (Tr. 223). Houlihan had Faurote call the Clinic to increase her Zoloft prescription. (Tr. 222).
On May 10, 2000, Faurote was again evaluated for depression by Houlihan, at Dr. Gupta's request. (Tr. 324, 325, 328). Faurote told Houlihan that she felt overwhelmed. (Tr. 224). Faurote also reported having an Avonex injection once a week, which produced disabling side effects such as fever, chills, and aching. ( Id.). She also complained of numbness in her right hand and was despondent about losing a job recently due to her illness. (Id). She also reported that she has been sleeping twelve hours a night. (Id). She stated that her appetite had increased, and she had gained thirty pounds since December. ( Id.). She also reported that her energy was poor. (Tr. 225).
On mental status exam, Houlihan found that Faurote's affect was tense, guarded and somewhat aloof and her judgment was questionable. (Id). Houlihan's diagnosis was mood disorder due to medical condition. (Id). Faurote's GAP was rated at 50. (Tr. 228). After discussing Faurote's condition with Houlihan, Dr. Christopher Shim increased Faurote's Zoloft prescription. ( Id.).
On June 27, 2000, Faurote called the Clinic, reporting that the shaking in her hands had worsened. (Tr. 318.). On June 29, 2000, Faurote told Houlihan that she was fatigued and could not sleep. ( Id.).
On June 30, 2000, Faurote saw Dr. Gupta. (Tr. 316-317). Dr. Gupta classified Faurote's fatigue as "moderate" on a scale of "mild," "moderate," and "severe." (Tr. 316). He also noted that Faurote could not sleep at night, that she had mood swings and "moderate" depression, and that there were tremors in her hands. ( Id.) Faurote also reported tiring after the Avonex injections. ( Id.). At that time her medications included Depalcote, Neurontin, Nasonex, Xanax, Flexeril, and Vicodin. ( Id.) Dr. Gupta's impression was that her multiple sclerosis was stable. (Tr. 317).
On July 27, 2000, Faurote saw Houlihan and again reported having sleeping difficulties. (Tr. 315). Faurote reported sleeping three (3) to four (4) hours at a time twice a day. ( Id.). She felt tired all of the time, depressed and unenergetic. ( Id.).
On September 28, 2000, Faurote saw Dr. Gupta. (Tr. 309). She reported having interrupted sleep at night and frequent daytime napping. ( Id.). She also reported intermittent bladder incontinence. ( Id.). Dr. Gupta described Faurote's fatigue as "significant." ( Id.).
On November 14, 2000, Faurote saw Dr. Gupta again. (Tr. 323-24). She reported having three "breakthrough" seizures the day before. (Tr. 323). Dr. Gupta noted that Faurote had fatigue and a bilateral intention tremor. ( Id.)
Dr. Gupta completed a questionnaire dated December 7, 2000, in which he opined that Faurote had multiple sclerosis, based on her clinical history, examination, spinal fluid, and an MRI of her brain. (Tr. 335). His opined that Faurote's disorder was progressive.
( Id.) He identified numerous symptoms, including fatigue, balance problems, poor coordination, weakness, sensitivity to heat, bladder problems, pain, depression, emotional lability, numbness/tingling or other sensory disturbance, and shaking tremors. ( Id.). He also noted that Faurote had epilepsy, which caused her to suffer about three to four seizures a year. ( Id.). He found that she had tremors in her hands, which worsened with stress and fatigue. (Tr. 336). He also found that she had significant reproducible fatigue of motor function based on her present history and on her frequent need for rest, but he noted that there was no objective or quantitative documentation. ( Id.). He found that there had been no exacerbations of the multiple sclerosis during the last year. ( Id.). He stated that Faurote had significant fatigue, but was unsure whether it was lassitude. (Tr. 337). Dr. Gupta found that Faurote's symptoms, including pain and fatigue, would be severe enough to interfere with her attention span and concentration, even while performing simple repetitive tasks. ( Id.). He found that she would have a number of specific limitations in her ability to work eight (8) hours a day, five (5) days a week, or an equivalent schedule, including opining that she would miss more than four (4) days of work per month due to her medical problems. (Tr. 337-340). Dr. Gupta noted at the end of his questionnaire that time restraints had prevented performance of a formal Functional Capacity Evaluation or a fatigue assessment, meaning that his answers were estimates. ( Id.).
III. STANDARD OF REVIEW
To be entitled to Social Security benefits, the Plaintiff must establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to . . . last for a continuous period of not less than 12 months. . . ." 42 U.S.C. § 416(i)(1); 42 U.S.C. § 423(d)(1)(A). A physical or mental impairment is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). It is not enough for the Plaintiff to establish that an impairment exists. Rather, it must be shown that the impairment is severe enough to preclude the Plaintiff from engaging in substantial gainful activity. See Gotshaw v. Ribicoff, 307 F.2d 840, 844 (4th Cir. 1962), cert. denied 372 U.S. 945, 83 S.Ct. 938, 9 L.Ed.2d 970 (1963); Garcia v. Califano, 463 F. Supp. 1098 (N.D. Ill. 1979).
A five-step test has been established to determine whether a claimant is disabled. That test requires a consideration of:
(1) whether the claimant is currently employed,
(2) whether the claimant has a severe impairment,
(3) whether the claimant's impairment is one that the Commissioner considers conclusively disabling,
(4) if the claimant does not have a conclusively disabling impairment, whether [he] can perform [his] past relevant work, and (5) whether the claimant is capable of performing any work in the national economy.Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). A claimant has the joint burdens of production and persuasion through step four, at which the individual's RFC is determined. Bowen v. Yuckert, 482 U.S. 137, 146, 107 S.Ct. 2287, 2294, 96 L.Ed.2d 119, n. 5 (1987). At step five, the Commissioner bears the burden of proving that there are jobs in the national economy the Plaintiff can perform. Herron v. Shalala, 19 F.3d 329, 333 n. 8 (7th Cir. 1994).
RFC is "an administrative assessment of what work-related activities an individual can perform despite [his] limitations." Dixon v. Massanari, 270 F.3d 1171, 1178 (5th Cir. 2001).
IV. DISCUSSION
Given the foregoing framework, the question before the Court is whether the Commissioner's decision is supported by substantial evidence. Johansen v. Barnhart, 314 F.3d 283, 287 (7th Cir. 2002). "Evidence is `substantial' if it is sufficient for a reasonable person to accept as adequate to support the decision." Id. Accordingly, a court "will reverse the Commissioner's findings only if they are not supported by substantial evidence or if the Commissioner applied an erroneous legal standard." Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). In making the substantial evidence determination, a court will review the entire administrative record but will "not reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute . . . [its] judgment for that of the Commissioner."
Id.
In the present case, the ALJ found that Plaintiff had not engaged in any substantial gainful activity since the alleged onset date. At step two, the ALJ found that Plaintiffs impairments were severe; however the ALJ found that Plaintiffs impairments did not meet or exceed one of the listed impairments under step three. Under step four, the ALJ found that Plaintiff had been unable to perform her past work since March 10, 2000. However, under step five, the ALJ found that prior to March 10, 2000, the Plaintiff was capable of performing a significant number of jobs in the regional economy, and, thus, was not disabled prior to that date.
Plaintiff contends that the ALJ failed to comply with Social Security Ruling ("SSR") 96-8p (1996 WL 374184 (S.S.A. July 2, 1996), also printed in 61 Fed. Reg. 34474 (1996)) by failing to discuss her subjective complaints of fatigue and how those symptom-related complaints could or could not reasonably be accepted as consistent with the medical and other evidence. Plaintiff further contends that the ALJ improperly rejected Dr. Gupta's opinion.
A. SSR 96-8p and Failure to Discuss Complaints of Fatigue
SSR 96-8p outlines the steps the ALJ must take in order to assess an individual's RFC. The ruling states that "RFC is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. A `regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." 1996 WL 374184 at *1. Furthermore, an ALJ must take subjective considerations and symptoms into account when assessing an individual's RFC as "subjective descriptions may indicate more severe limitations or restrictions than can be shown by objective medical evidence alone." Id. at *5. Faurote contends that the ALJ did not fully comply with SSR 96-8p in that the ALJ failed to properly consider her subjective complaints of fatigue, opining that the ALJ "may have failed to consider her fatigue because he misunderstood her testimony." Opening Brief, p. 22.
The ALJ did erroneously recite on page four of his opinion that Faurote "testified that she could have had class five days a week. . . ." Tr. 20f. In fact, Plaintiff testified that in the Fall of 1998 she would not have been able to attend classes four or five days per week. (Tr. 380). Furthermore, the ALJ does not discuss the numerous incidents of fatigue contained in the record occurring prior to March 10, 2000. In addition, the ALJ makes no mention of the fact that Dr. Kent Lehman opined during Faurote's hospitalization in December 1999 that fatigue was a contributing factor to her seizures (Tr. 168) and that Dr. Gupta found that she had "multifactorial" fatigue due to Multiple Sclerosis, medication and depression. (Tr. 227). Rather, the ALJ only tersely noted that Dr. Brian Zurcher's records do not mention fatigue through October 1999. (Tr. 20g).
"Q. Okay. Now if you had to come to class on the fourth and fifth day, in other words if this was a, you know like a job, five days a week. [Sic] Would you have been able to work, or go to school, a fourth and fifth day?
A. No. Q. So this was your, you felt was your physical limit at that time, and mental, so to speak? A. Yeah."
Tr. 380-81.
The record shows that Faurote complained of feeling tired or fatigued to health care workers on at least the following dates: October 9, 1998 (Tr. 261-62); March 11, 1999 (Tr. 252); April 2, 1999 (Tr. 250); April 20, 1999 (Tr. 247); April 23, 1999 (Tr. 246); May 14, 1999 (Tr. 144); September 20, 1999 (Tr. 238); February 1, 2000 (Tr. 235); and March 6, 2000 (Tr. 226). Furthermore, Faurote testified that her need to nap had increased in the eighteen (18) months prior to the December 2000 hearing, tr. 367, and Faurote's mother testified as to Faurote's constant need to rest. (Tr. 397-98).
An ALJ's decision will be reversed if the ALJ fails to address "important lines of evidence." Miller v. Massanari, 181 F. Supp.2d 978, 983 (N.D. Ind. 2002). The ALJ's cursory references to Faurote's need to nap are insufficient in light of the fact that fatigue was a major factor underpinning Faurote's claim. It was incumbent upon the ALJ to engage in a reasoned analysis of how Faurote's subjective complaints of fatigue, as well as the medical findings related to fatigue, factored into the ALJ's assessment of Faurote's RFC. See id. at 984; SSR 96-8p, 1996 WL 374184 at *5.
As the Court held in Miller, "[d]espite . . . [Plaintiff's] continued subjective complaints and the ALJ's recognition of those complaints of fatigue his opinion does not address how the fatigue did or did not affect her ability to continue to perform her past employment as it was previously performed. This was clear error given that so much of her testimony focused on her fatigue and yet the ALJ spent no time discussing those specific complaints.' Miller, 181 F. Supp.2d at 984.
The ALJ need not engage in an extended analysis of each time Faurote complained of being fatigued. Dixon, 270 F.3d 1171, 1176 (7th Cir. 2001) (holding that an ALJ "is not required to address every piece of evidence or testimony, but must provide some glimpse into her reasoning"). However, the ALJ is required to "discuss those subjective complaints on some minimal level so as to give this court an indication that these factors were considered." Miller, 181 F. Supp.2d at 984. See also Dixon, 270 F.3d at 1176 ("In making her decision, an ALJ must articulate, at some minimum level, her analysis of the evidence. . . . Where an ALJ denies benefits, she must build an accurate and logical bridge from the evidence to her conclusion"). The Court cannot discern from the ALJ's opinion how, if at all, Faurote's subjective complaints of fatigue and the medical findings related thereto, factored into the ALJ's decision regarding the onset date of Faurote's disability. Thus, this matter must be remanded to the ALJ for further findings.
In addition, remand is appropriate as the ALJ's opinion does not contain an explicit statement regarding Faurote's ability to "do sustained work-related physical and mental activities on a work setting on a regular and continuing basis" (i.e., eight (8) hours per day, five days per week). SSR 96-8p, at 1996 WL 374184, *1. Accordingly, upon remand the ALJ should make specific findings, taking into account all of the evidence, whether Faurote possessed the ability to work on a continuing and regular basis prior to March 10, 2000. See e.g., Mardukhayev v. Commissioner of Social Security, 2002 WL 603041, at * 6 (E.D. N.Y. 2002) (reversing ALJ's decision for failure to make findings as to whether a claimant had capacity to work on regular and continuing basis and citing the similar holdings of Myers v. Apfel, 238 F.3d 617 (5th Cir. 2001); Bladow v. Apfel, 205 F.3d 356 (8th Cir. 2000); and Murray v. Apfel, 1998 WL 412639 (E.D. N.Y. 1998)).
The Commissioner argues that the ALJ's decision is supported by substantial evidence as, in the Commissioner's view, there is no medical evidence suggesting that Faurote's condition worsened between the alleged onset date of July 1998 and March 10, 2000. The Commissioner also argues that Faurote's ability to perform daily activities shows that she was not disabled prior to March 10, 2000. Although such conclusions may have been logically reached by the ALJ, the Commissioner's post hoc arguments are inapposite. See Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002) ("But regardless whether there is enough evidence in the record to support the ALJ's decision, principles of administrative law require the ALJ to rationally articulate the grounds for her decision and confine our review to the reasons supplied by the ALJ. . . . That is why the ALJ (not the Commissioner's lawyers) must `build an accurate and logical bridge from the evidence to her conclusion'") (quoting Dixon, 270 F.3d at 1176). The Court is not ruling as to whether the ALJ's ultimate conclusion was correct. Rather, the Court is unable to adequately review the ALJ's conclusions due to the ALJ's failure to make the necessary findings. On remand, the ALJ may adopt the Commissioner's arguments and again find that Faurote was not disabled prior to March 10, 2000, but only after engaging in a sufficient discussion of her fatigue and the medical findings related thereto.
B. Treating Physician's Opinion
Plaintiff contends that the ALJ improperly rejected the opinion of the treating physician, Dr Gupta.
Generally, "more weight is . . . given to the opinion of a treating physician because of his greater familiarity with the claimant's conditions and circumstances." Clifford, 227 F.3d at 870. However, "a treating physician's opinion is entitled to controlling weight only if it is not inconsistent with other substantial evidence in the record." Johansen, 314 F.3d at 287. As a practical matter, this means that "[w]hen treating and consulting physicians present conflicting evidence, the ALJ may decide whom to believe, so long as substantial evidence supports that decision." Dixon, 270 F.3d at 1178. However, even if the opinion of a treating physician is not entitled to controlling weight, "such opinion is still entitled to deference and must be weighed using the factors set out in the regulations [ 20 C.F.R. § 404.1527(d)]." McGraw v. Apfel, 87 F. Supp.2d 845, 853 (N.D. Ind. 1999).
Those factors include the length of the treatment relationship, the nature and extent of the treatment relationship, the evidence supporting the treating physician's opinion, the consistency of the treating physician's opinion, and whether the treating physician is a specialist in the medical fields in question. See 20 C.F.R. § 404.1527(d)(2)(i)-(d)(5).
The crux of the ALJ's findings on this issue are as follows:
One of the claimant's treating physicians, Dr. Ajay Gupta, provided estimates to questions asked by her attorney in Exhibit 20F, but these estimates are apparently based on the claimant's subjective report to Dr. Gupta. In addition, Dr. Gupta provided no onset for his assessment nor specific evidence to support such an assessment; thus, controlling weight is not given to Dr. Gupta's assessment (Exhibit 20F). The conclusion that the claimant was not totally disabled given her limitations prior [to] March 10, 2000, is essentially consistent with the determinations of the State Agency medical consultants, who reviewed the evidence of record and found no impairment limitations which would preclude any work activity (Exhibits 15F; 16F). . . . The greater weight is given to their findings, as they substantially correspond with the medical evidence established prior to March 10, 2000 ( 20 C.F.R. § 404.1527(f) . . .).
Tr. 20j.
Obviously, the ALJ discussed some of the factors set forth in 20 C.F.R. § 404.1527(d). However, the ALJ did not discuss all of the factors, such as the length of time Dr. Gupta had been treating Faurote, the nature and extent of that treatment relationship, and whether Dr. Gupta is a specialist. Furthermore, the ALJ's conclusion that Dr. Gupta's opinion was not supported by medical evidence is erroneous as the questionnaire containing Dr. Gupta's opinion specifically states that, along with Faurote's clinical history, his diagnosis is based on, inter alia, examination of Faurote, an MRI of her brain, and "spinal fluid."
Furthermore, the ALJ states that he gave the opinions of the unnamed State Agency physicians "greater weight" because those opinions "substantially correspond with the medical evidence established prior to March 10, 2000." Tr. 20j. However, the ALJ does not state what medical evidence he is referencing. Furthermore, the ALJ did not discuss whether the State Agency physicians, who are not even referred to by name in the penultimate section of the opinion, are specialists, the specific evidence underlying those physicians' opinions, nor the supporting explanations, if any, offered by those physicians for their opinions. See 20 C.F.R. § 404.1527(f)(2)(ii).
As noted by Faurote, the opinions rendered by the State Agency physicians appear to contain little to no explanatory material. See Tr. 200-207.
The ALJ may reject the opinion of Dr. Gupta, but only after properly analyzing the factors set forth in 20 C.F.R. § 404.1527. In this case, the ALJ has failed to do so, meaning that the Court is unable to sufficiently analyze the reasons underpinning his conclusions. Accordingly, on remand, the ALJ shall make more detailed findings regarding the weight afforded to Dr. Gupta's opinion.
The Commissioner argues that the ALJ's decision to reject Dr. Gupta's opinion is supported by substantial evidence, such as the fact that Dr. Gupta's opinion was submitted approximately nine (9) months after the date the ALJ considered Faurote to have become disabled. The Commissioner also argues that the ALJ properly rejected Dr. Gupta's opinion because that opinion is based on estimates and has no specific onset date. All of those factors may properly be considered by the ALJ on remand. However, they are not the sole factors which must be considered. The problem with the ALJ's rejection of Dr. Gupta's opinion is the ALJ's failure to consider all of the aforementioned requisite factors. Thus, the Commissioner's argument is misplaced.