Opinion
Case No. 02-1297-WEB
September 26, 2003
MEMORANDUM AND ORDER
The Court now considers the Complaint (Doc. 1) of plaintiff Sharon A. Geubelle (Plaintiff). Plaintiff alleges that defendant Jo Anne Barnhart, Commissioner of Social Security (Commissioner), failed to give proper weight to the opinion of Plaintiff's treating physician that she would be unable to work four or more days each month due to her chronic obstructive pulmonary disorder (COPD). The Commissioner responds that this opinion was not consistent with the treating physician's notes, and that Plaintiff's continuing pattern of smoking shows that her condition is not serious.
I. THE ADMINISTRATIVE PROCEEDINGS
At the beginning of the administrative hearing, Plaintiff's representative announced that Plaintiff would rely on a "pulmonary RFC" submitted by her treating physician, Daniel C. Doornbos, M.D. (R. 29.) The document, entitled "Form: Pulmonary Residual Functional Capacity Questionnaire" (R. 416 ff.)(Questionnaire), posed a number of questions concerning the Plaintiff's condition to Dr. Doornbos.
Dr. Doornbos listed "COPD, tobacco abuse, sleep apnea, obesity, allergic rhinitis, and chronic cough" as Plaintiff's diagnoses. Id. He identified Plaintiff's symptoms as shortness of breath, chest tightness, edema, episodic acute bronchitis, and episodic pneumonia. When asked whether emotional factors contribute to the severity of Plaintiff's symptoms, Dr. Doornbos answered yes, but when asked whether Plaintiff is a malingerer, he answered no.
Edema: "the presence of abnormally large amounts of fluid in the intercellular tissue spaces of the body. . . ." Dorland's Illustrated Medical Dictionary, (27th ed. 1988).
In question 14, Dr. Doornbos was asked to estimate Plaintiff's "functional limitations . . . in a competitive work situation on an ongoing basis." (R. 418.) The question was divided into numerous subsections, the first seven of which dealt with Plaintiff's ability to walk, sit, stand, work without unscheduled breaks, lift, twist, climb stairs, etc. Dr. Doornbos marked all of these subsections "N/A" without further explanation. Id. The next subsection listed a number of irritants or allergens such as extreme heat and cold, fumes, smoke, and solvents. Dr. Doornbos recommended that Plaintiff avoid exposure to all the listed irritants or allergens. The final subsection, 14(1), asked, "[a]re your patient's impairments likely to produce `good days' and `bad days'?" (R. 419.) Dr. Doornbos checked yes, and based on this response he was asked to, "estimate, on the average, how many days per month your patient is likely to be absent from work as a result of the impairments or treatments." Id. The Questionnaire provided choices from never to more than four days per month. Dr. Doornbos checked the greatest option, more than four days per month.
At the hearing, the ALJ asked a vocational expert to consider, "if [P]laintiff is limited to . . . sedentary work, would she be able to do any of her prior work?" (R. 51.) The vocational expert said she would be able to do her previous job as a secretary. The ALJ then inquired whether secretarial work would be available if Plaintiff, "was required to miss work four days a month. . . ." (R. 52.) The vocational expert said it would not be available. The ALJ finally asked whether any sedentary jobs would be available "if she was not able to go to work four days a month," and the vocational expert confirmed that no jobs would be available under those conditions. (R. 53.)
The ALJ, nevertheless, made a stage-four determination that Plaintiff could do her past relevant work as a secretary. The ALJ addressed Dr. Doornbos' opinion as follows:
Finally in reaching this decision, the undersigned has considered the statement completed by Dr. Doornbos noting only environmental limitations (no physical limitations) and indicating the [Plaintiff] was likely to be absent from work more than four days per month. It appears that the doctor was referring to the [Plaintiff's] past work in housekeeping. His medical notes had indicated that she had problems with the cleaning agents and fumes. However, the remaining reports indicate that the [Plaintiff] was doing well. His notes dated May 29, 2001 and September 4, 2001 indicated that the COPD was stable. Records from the Wichita Clinic dated January 24, 2002 reported the [Plaintiff] was doing great.
(R.21.).
Plaintiff then requested the Appeals Council to review the ALJ's decision. Plaintiff's representative submitted a letter to the Appeals Council from Dr. Doornbos which stated:
[I] seems that the form may have been somewhat ambiguous in that it did not specify what type of work was meant on item 141. To clear up this apparent misunderstanding, I will state that in my medical opinion, she is likely to have pulmonary problems that could require absence from work for more than four days a month, and that this means any type of work If she is ill with difficulty breathing, etcetera, she would not be able to go to any work place, and therefore, this would not simply apply to her customary job but to any job she might be holding or could hold. If you require further clarification, yet, please do not hesitate to contact me.
(R.9.)
The Appeals Council refused Plaintiff's request to review the ALJ's decision. Regarding Dr. Doornbos' letter, the Appeals Council stated:
Although the [ALJ] assumed that Dr. Doornbos was referring to your past work in housekeeping, an assumption the doctor has now clarified, the [ALJ] also noted that your treatment records showed you were doing well. The [ALJ] specifically noted that Dr. Doornbos' own notes indicated your COPD was stable and that subsequent notes as recent as January 2002 reported you were doing great. Thus, the [ALJ] recognized that the doctor's records were inconsistent with a disabling condition. The Council finds that the record does not support the doctor's opinion regardless of whether he meant to include all jobs or just the housekeeping job. Certainly your own activities do not show a disabling impairment. Moreover, your continued smoking, against medical advice, suggests that you do not believe your condition is as serious as alleged. Your testimony at the hearing was quite revealing. Although you testified that you were not smoking "at present', you admitted you had been smoking up until the Monday before the hearing. Accordingly, the Council does not find any support for Dr. Doornbos' opinion despite his recent clarification regarding that opinion. Therefore, there is no basis to warrant disturbing the [ALJ's] decision.
(R. 6-7.)
II. ANALYSIS
The Court must first clarify what decision or decisions it is reviewing. When the Appeals Council denies review of an ALJ's decision, the ALJ's decision becomes the Commissioner's final decision. See 20 C.F.R. § 404.981; O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994). The Appeals Council in this case said it was denying review, and it certainly didn't take steps to conduct a review such as notifying the parties, accepting additional briefs, or receiving evidence. See 20 C.F.R. § 404.973, 404.975, 404.976. The Appeals Council did, however, make additional findings regarding the weight of Dr. Doornbos' opinion.
Under these circumstances, the Court will examine the both the ALJ's decision and the additional findings of the Appeals Council. This is not to dispute that the ALJ's decision is the Commissioner's final decision, but rather to recognize that the Commissioner's "`finaldecision' necessarily includes the Appeals Council's conclusion that the ALJ's findings remained correct despite the new evidence." O'Dell, 44 F.3d at 859. The Court must also review the ALJ's decision based on the record as a whole, which includes any new evidence presented to the Appeals Council. Id. at 858. The Court will, therefore, consider the Appeals Council's rationale in its review of the Commissioner's decision.
A. Standard of Review
The Commissioner determines disability under a five-step sequence. See 20 C.F.R. § 404.1520(a)-(f). The Court must affirm the Commissioner's final decision if it is supported by substantial evidence. 42 U.S.C. § 405(g); White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2002). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842, 852 (1971) (citation omitted).
While the Court must not reweigh the evidence or substitute its judgment for the Commissioner, the Court must 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." Casias v. Secretary of Health Human Services, 933 F.2d 799, 800-01 (10th Cir. 1991) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456, 467-68 (1951); see also Schmidt v. Apfel, 39 F. Supp.2d 1291, 1295 (D.Kan.1999) (evidence is insubstantial if it is overwhelmingly contradicted by the other evidence, citing O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994); Ellison v. Sullivan, 929 F.2d 534 (10th Cir. 1990)). The Court will typically defer to the Commissioner on issues of credibility, but even credibility determinations should be "closely and affirmatively linked to substantial evidence " Kent v. Apfel, 75 F. Supp.2d 1170, 1172 (D.Kan. 1999) (quoting Winfrey v. Chater, 92 F.3d 1017, 1020 (10th Cir. 1996) (further citations omitted)).
The Commissioner's application of law is not subject to a deferential standard of review. Reversal may be appropriate if the Commissioner either applied the incorrect legal standard or failed to demonstrate that she relied on the correct legal standard. Casias, 933 F.2d at 801; Schmidt, 39 F. Supp.2d at 1295.
B. Discussion
There is no dispute that Dr. Doornbos was Plaintiff's treating physician and that he is a specialist in pulmonary disorders. The Commissioner must give controlling weight to Dr. Doornbos' opinion regarding the days per month Plaintiff would miss if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record. 20 C.F.R. § 404.1527 (d)(2). If Dr. Doornbos' opinion is not given controlling weight, it must be weighed under the factors set out in 20 C.F.R. § 404.1527(d)(2)(i), 404.1527(d)(2)(ii), and 404.1527(d)(3)-(6). See id. The Commissioner must also "give good reasons" for the weight accorded to Dr. Doornbos' opinion. Id.
Turning first to the ALJ's decision, he found that Dr. Doornbos was referring only to Plaintiff's prior work as a house cleaner. Not only was this finding speculative on its face, but Dr. Doornbos' subsequent letter establishes with certainty that the ALJ's finding is not supported by substantial evidence.
The ALJ also made a finding that Dr. Doornbos' notes showed Plaintiff's COPD was stable and that she was doing great. There are no notes from May 29, 2001, as the ALJ found, but in a note dated May 25, 2001, Dr. Doornbos characterized Plaintiff's COPD as "fairly stable." (R. 381.) Of course, the relative stability of a condition says little about its absolute severity. See Borland's Illustrated Medical Dictionary, (27th ed., 1988) (stable: "not moving, fixed, firm; resistant to change").
More significantly, the same note discusses tests which show that Plaintiff has "clearly deficient oxygenation" when sleeping. (R. 380.) A separate pulmonary function test showed a "severely reduced diffusing capacity." (R. 381.) Compared to a prior test, Dr. Doornbos concluded "there has been some reduction in the forced vital capacity." Id. Dr. Doornbos also recorded that "[r]ecent numbers include FEV1 1.78 liters or 67% predicted, FVC 2.21 liters or 63% predicted, FEV1/FVC ratio of 80%, TLC 4.06 liters or 73% predicted, and diffusing capacity 12.8 ml/minute/mmhg or 48% predicted." (R. 381.)
diffusing capacity for carbon monoxide. See The Merck Manual, 525 (17th ed. 1999).
forced vital capacity: "Volume of air expired with maximum force." Id., at 522.
FEV1, or forced expiratory volume: `Volume of air forcefully expired during the first second. . . ." Id., at 523.
FVC: forced vital capacity. Id. at 521.
FEV1/FVC ratio: volume of air forcefully expired during the first second as a percentage of the volume of air expired with maximum force. See id. at 521, 523-24.
TLC: "[t]otal lung capacity." Id. at 521.
To the extent these were "medically acceptable clinical and laboratory diagnostic techniques," the ALJ was bound to weigh them and explain why the "fairly stable," comment, taken in isolation from such diagnostic findings, cast doubt on Dr. Doornbos' ultimate conclusion about the Plaintiff's condition. The ALJ did not do this, and it is not this Court's task now to weigh the evidence and make the requisite finding.
The record does contain the September 4, 2001, note referred to by the ALJ. In this note, Dr. Doornbos states that Plaintiff's, "[COPD] . . . is doing fairly well at this time." (R. 429.) This also does not contradict Dr. Doornbos' opinion regarding Plaintiff's ability to work given that "doing fairly well" is a relative assessment. The issue was not how Plaintiff was doing for someone with COPD, but, as the Questionnaire asked, what functional limitations in a competitive work situation on an ongoing basis Plaintiff would suffer given her condition.
The Court can only conclude that the ALJ did not weigh Dr. Doornbos' opinion under the standard of 20 C.F.R. § 404.1527, but rather made an implicit medical judgment that Plaintiff would not miss more than four days each month based on the "fairly stable" and "fairly well" comments. The ALJ identified nothing else, such as contrary a medical opinion, as the basis for his conclusion. An ALJ may not impose his or her own medical opinion even if it is based on medical tests. See Winfrey v. Chater, 92 F.3d 1017, 1022 (10th Cir. 1996). How much less, then, should an ALJ make a medical judgment based on such general and relative characterizations.
The ALJ next found that records from the Wichita Clinic, dated January 24, 2002, reported that Plaintiff was doing great. The Court cannot locate such records, and the parties do not cite to them. The September 4, 2001, note from Dr. Doornbos does state, "[s]he says after I saw her in May she quit smoking for six weeks and felt great but then she ran out of her Wellbutrin and subsequently restarted smoking." (R. 429.)
Earlier in his decision, the ALJ also stated, "[t]he last record dated January 24, 2002, noted that the claimant had stopped smoking and was doing great, (exhibit 14F)." (R. 18.)
The ALJ had referred to this note earlier in his decisionas evidence of "noncompliance." (R. 16.) Unlike the Commissioner, however, the ALJ did not discount Dr. Doornbos' opinion because Plaintiff' smoked. The ALJ simply concluded that the phrase "felt great" conflicted with Dr. Doornbos' later medical assessment of her condition.
This inference is reasonable only if Plaintiff "felt great" as that phrase is commonly understood, but there is no factual basis for that assumption. In addition to what has already been mentioned from the September 4, 2001 note, it recorded that Plaintiff must use a constant positive air pressure device (CPAP) when she sleeps so she can obtain sufficient oxygen. Even though Plaintiff complained about the discomfort it caused, Dr. Doornbos, "told her that she needed to keep working with the CPAP. . . ." (R. 430.)
It was not reasonable, therefore, for the ALJ to interpret the phrase "felt great" as necessarily contrary to Dr. Doornbos' opinion. Before the ALJ could disregard Dr. Doornbos' opinion he was required to offer specific, legitimate reasons for his decision. Barriett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000). The Plaintiff's relative description of how she felt, extracted from the midst of the clinical and diagnostic findings contained in the same note, was not be a specific, legitimate reason without a further discussion of those medical tests.
The Court next turns to the Appeals Council's rationales. The Appeals Council first rejected Dr. Doornbos' opinion because it found that the Plaintiff's activities "do not show a disabling impairment" (R 8.) Although the Appeals Council did not specify which activities it meant, the ALJ found that the Plaintiff cared for herself and her husband prior to his death by cooking and doing the laundry with some assistance. The ALJ found that Claimant no longer performs these tasks, but that she "continues to drive, shop, visit friends and family, pays bills and attends church," and plants flowers. (R. 18.)
The question, then, is whether driving a car, shopping, visiting friends and family, paying bills, attending church, and planting flowers, is substantial evidence that Plaintiff will not miss four days of work each month. The burden was not on the Commissioner at stage four, if course, but the Court must still consider whether the Commissioner had a factual basis for disregarding the treating physician's opinion. The record shows only minimal activity by Plaintiff.
In an "Activities of Daily Living" form completed in November 1999, before her husband's death, Plaintiff' said she shopped for groceries for two hours at a time, twice a month. (R. 212.) She needed help unloading the car. She shopped for cleaning supplies once a month, and her daughter would go with her to load and unload the car. She said that most days she did not leave the home, but that she would go out to eat sometimes, or to church. She attended church once a week for an hour. She visited with friends and family every day, but usually at her home or on the phone. She engaged in no other activities outside the home.
In another Activity of Daily Living form completed in August 2001, after her husband's death, she shopped for only one hour at a time and she relied on others to carry in the groceries. She had ceased shopping for non-grocery items. She still visited family and friends, mostly at home, and she still attended church. She described one new activity outside the home, which was going to a movie approximately once a month.
Simply as a matter of logic, the level of activity described by Plaintiff is not contrary to Dr. Doornbos' opinion. A person could perform the minimal activities described by Plaintiff and still be miss more than four days of competitive work each month. See Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993) ("The sporadic performance of household tasks or work does not establish that a person is capable of engaging in substantial gainful activity." (internal punctuation and citations omitted)).
The Appeals Council next found that, "your continued smoking, against medical advice, suggests that you do not believe your condition is as serious as you allege." (R. 6-7.) The Court first notes that the Appeals Council did not make a finding of fact here, but rather suggested what Plaintiff's beliefs might be. It is not this Court's job to make findings of fact where the Commissioner did not do so.
The Appeals Council also did not explain how Plaintiff's suggested beliefs about her condition affect the weight of Dr. Doornbos' medical opinion. The Appeal Council simply mentioned that Plaintiff was still smoking just days before the hearing and then concluded, "[a]ccordingly, the Council does not find any support for Dr. Doornbos' opinion despite his recent clarification regarding that opinion." (R. 7.)
Leaving aside the obvious exaggeration that there is no support in the record for Dr. Doornbos' opinion, the conclusion of the Appeals Council must rest on one of two unstated assumptions. The first is that a person who continues to smoke is not very ill. This assumption is not supported by the record. Plaintiff was repeatedly urged not to smoke by her medical providers precisely because she is chronically ill and the smoking aggravates her condition.
The second unstated assumption is that if Plaintiff' stopped smoking she would not miss more than four days of work each month. The Commissioner is allowed, under certain circumstances, to deny benefits if a claimant refuses a treatment which would allow the claimant to work. See 20 C.F.R. § 404.1530(a) ("In order to get benefits, you must follow treatment prescribed by your physician if this treatment can restore your ability to work"); Norris v. Apfel, 2000 WL 504882 (10th Cir. 2000) ("This court . . . long ago adopted a four-part test to assess a claimant's failure to pursue treatment: (1) whether treatment would have restored the claimant's ability to work. . . ."); Weakley v. Heckler, 795 F.2d 64, 66 (10th Cir. 1986) (stating the four-part test and placing the burden on the government to prove each element); Teter v. Heckler, 775 F.2d 1104, 1107 (10th Cir. 1985) (adopting four-part test); Social Security Ruling 82-59 (the Commissioner may determine an individual has failed to follow prescribed treatment only were, inter alia, "[t]reatment which is clearly expected to restore capacity to engage in [substantial gainful activity]. . . has been prescribed by a treating source. . . .").
Here, however, neither the ALJ nor the Appeals Council made such a finding. The Commissioner, therefore, did not apply the correct legal standard. The Commissioner cites Quails v. Apfel, 206 F.3d 1368 (10th Cir. 2000), for the proposition that she need not show Plaintiff could work if she stopped smoking, but Quails dealt with credibility regarding pain, not a refusal to follow prescribed treatment. See 206 F.3d at 1372. The Commissioner's argument has been considered and rejected by two courts in this district, and the Court agrees with the analysis stated therein. See Piatt v. Barnhart, 231 F. Supp.2d 1128, 1129 (D.Kan. 2002); Goodwin, 195 F. Supp.2d at 1295-96.
Finally, while the Court has analyzed each reason offered by the ALJ and the Appeals Council separately, the Court also concludes that they are not supported by substantial evidence when taken together. Especially after Plaintiff's representative so clearly identified Dr. Doornbos' opinion as her "theory of the case" (R. 29), the ALJ was obliged to consider it in the light of the entire record, including the clinical and laboratory diagnostic techniques used by Dr. Doornbos and Plaintiff's other medical providers. Similarly, the Appeals Council failed to reckon seriously with Dr. Doornbos clarification of his opinion. The Appeals Council's finding that Plaintiff's activity was inconsistent with Dr. Doornbos' opinion is not supported by substantial evidence, and the Appeals Council did not make findings about Plaintiff's continued smoking under the proper legal standard. The matter must be remanded for further proceedings.
IT IS THEREFORE ORDERED that the Commissioner's decision denying benefits to Plaintiff is REVERSED, and the matter is REMANDED under the fourth sentence of 42 U.S.C. § 405(g) for further proceedings in accordance with the standards set out in this memorandum and order.
SO ORDERED.