Opinion
Civil Action No. SA-03-CA-0280 OG (NN).
June 9, 2004
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
TO: Hon. Orlando Garcia United States District Judge
I. Introduction
Plaintiff David Mabry seeks review and reversal of the administrative denial of his application for Supplemental Security Income by the Administrative Law Judge ("ALJ") on November 12, 2002. Plaintiff contends that ALJ Jonathan Blucher's conclusion that plaintiff retained the residual functional capacity ("RFC") to perform work available in the local and national economies is not supported by the substantial evidence of the record. Specifically, plaintiff asserts that ALJ Blucher erroneously held that plaintiff's bipolar disorder did not meet or equal a listed impairment. For this reason, plaintiff requests that the court reverse, remand and order the entry of a finding of disability, or, in the alternative, remand the case for proper development.After considering plaintiff's brief in support of an award of benefits, defendant's brief in support of the Commissioner's decision, plaintiff's reply brief, the transcript of the Social Security Administration (hereinafter "SSA") proceedings, the pleadings on file, the applicable case authority and relevant statutory and regulatory provisions, and the entire record in this matter, it is my recommendation that plaintiff's complaint be GRANTED. The ALJ's finding that plaintiff's bipolar disorder does not meet or medically equal a listed impairment is not supported by the substantial evidence of the record. For this reason, it is my recommendation that this case be remanded for further proceedings consistent with this Memorandum and Recommendation.
Docket Entry 10.
Docket Entry 11.
Docket Entry 16.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
II. Jurisdiction
The court has jurisdiction under 42 U.S.C. § 1383.
III. Administrative Proceedings
According to the record in this case, plaintiff fully exhausted his administrative remedies prior to filing this action in federal court. Plaintiff filed an application for Supplemental Security Income ("SSI") on October 19, 2000, alleging a disability beginning July 18, 2000. The SSA denied plaintiff's application both initially, on May 1, 2001, and on reconsideration, June 21, 2001.
Administrative Transcript ("Transcript"), at 92-95.
Transcript, at 74-78.
Transcript, at 81-82.
On July 17, 2001, plaintiff requested a hearing before an ALJ. The hearing was held on September 11, 2002. Plaintiff was represented by counsel at the hearing. Plaintiff's attorney was able to examine and question plaintiff, plaintiff's mother, Ann Mabry, and the vocational expert, Dr. Don Marth, during the hearing.
Transcript, at 84.
Transcript, at 22-71.
Id.
The plaintiff, who was fifty four (54) years old at the September 2002 hearing, testified that he had a high school education. He told the ALJ that he had past work experience as a maintenance man and as an electrician.
Transcript, at 29, 30.
Transcript, at 33, 34, 36, 37, 44.
Plaintiff testified that he lived in a house with his parents. When asked about his ability to perform household chores, plaintiff stated that he was able to do minor cooking, wash dishes by hand, and clean his own room. Plaintiff further testified that he did not wash his own laundry.
Transcript, at 31.
Transcript, at 38-39.
Transcript, at 39.
When asked about his daily and routine activities, plaintiff responded that he spent the majority of his time watching television. Plaintiff stated that he occasionally read the newspaper or paperback novels. Plaintiff testified that he never attended church and did not visit with friends, but that he tried to care for his ailing father.
Transcript, at 39.
Transcript, at 39, 40.
Transcript, at 39, 42.
When asked about his medical impairments, plaintiff testified that he had asthma. To control the asthma, plaintiff took prescription albuterol. Plaintiff also stated that he took medication for his bipolar disorder. Plaintiff testified that if he forgot to take the medication for his bipolar disorder, including 300 mg of lithium three times per day, he was unable to cope. Plaintiff testified that his mother assisted him in remembering to take his medications on time, every day. Plaintiff stated that side effects of his psychiatric medications included drowsiness and nausea. When asked if his medications sufficiently controlled his bipolar disorder such that he could return to work, plaintiff answered, "I don't know, there's only one way to find out is ( sic) to try it."
Transcript, at 45.
Transcript, at 48.
Transcript, at 43, 44.
Transcript, at 49.
Transcript, at 45.
Transcript, at 46.
Plaintiff's mother, Ann Mabry, also testified at the hearing. Mrs. Mabry stated that she believed her son was incapable of returning to work because he was unable to handle pressure or to take directions from other people. Mrs. Mabry further testified that plaintiff takes a two to two and a half hour nap each day after he takes his noon-time medications.
Transcript, at 51-57.
Transcript, at 53, 54.
Transcript, at 54.
Vocational expert, Dr. Don Marth, also testified at the hearing. Dr. Marth classified plaintiff's past work as: (1) electrician — medium, skilled work; (2) maintenance worker — light, unskilled work; (3) line crew worker — heavy, unskilled work; and (4) livestock worker — heavy, semi-skilled work.
Transcript, at 58-71.
Transcript, at 61-62.
The ALJ asked vocational expert Marth to assume a hypothetical individual of plaintiff's age, education and work experience who had no physical limitations, save an inability to work around large amounts of dust, and was limited to "simpler, unskilled jobs . . . with modest contact with others, and . . . limited to work that is not of a high stress nature . . ." The vocational expert testified that the aforementioned hypothetical individual would be able to perform work as a "flagger on construction," a "gate guard at a construction site," a "cleaner in housekeeping," or a "folder in a laundry."
Transcript, at 62-63.
Transcript, at 63, 64.
Plaintiff's attorney referred the vocational expert to certain mental RFC assessment and Psychiatric Review Technique forms in the record which indicated that plaintiff was "moderately limited" in many areas of social functioning and in his ability to maintain concentration, persistence and pace. Although he discussed the difficulty in understanding the precise limitations presented by the evaluations indicating that plaintiff had "moderate" limitations in the aforementioned areas, the vocational expert testified that those limitations — if true — precluded plaintiff from obtaining or maintaining competitive employment.
See Transcript, at 66-71, 128-131, 142-145, 147-150, 161.
Transcript, at 66-71.
On November 12, 2002, the ALJ issued his decision in which he concluded that plaintiff was not under a "disability," as defined by the Social Security Act ("the Act"), at any time through the date of the decision — that is, from the date plaintiff submitted his application through the date of the ALJ's decision. Specifically, ALJ Blucher found that plaintiff retained the RFC to perform work available in the local and national economies.
Transcript, at 8-20.
After receiving the ALJ's unfavorable decision dated November 12, 2002, plaintiff requested review of the hearing and decision on December 17, 2002. On March 21, 2003, the Appeals Council concluded that there was no basis upon which it could grant plaintiff's request for review, thereby denying plaintiff's request. Plaintiff commenced the instant action in this court on April 8, 2003.
Transcript, at 6.
Transcript, at 3-5.
Docket Entry 1.
IV. Issue Presented
Whether the ALJ's decision is supported by substantial evidence and comports with relevant legal standards?V. Analysis
A. Standard of Review
In reviewing the Commissioner's decision denying disability insurance benefits, I am limited to a determination of whether substantial evidence supports the decision and whether the Commissioner applied the proper legal standards in evaluating the evidence. "Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Substantial evidence "must do more than create a suspicion of the existence of the fact to be established, but `no substantial evidence' will be found only where there is a `conspicuous absence of credible choices' or `no contrary medical evidence.'"
Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); 42 U.S.C. § 405(g), 1383(c)(3) (2002).
Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).
Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988) (quoting Hames, 707 F.2d at 164).
If the Commissioner's findings are supported by substantial evidence, then they are conclusive and must be affirmed. In my review of the Commissioner's findings, I must carefully examine the entire record, but refrain from re-weighing the evidence or substituting my judgment for that of the Commissioner. Conflicts in the evidence and credibility assessments are for the Commissioner and not for the courts to resolve. Four elements of proof are weighed by the courts in determining if substantial evidence supports the Commissioner's determination: (1) objective medical facts, (2) diagnoses and opinions of treating and examining physicians, (3) the claimant's subjective evidence of pain and disability, and (4) the claimant's age, education and work experience.
Martinez, 64 F.3d at 173.
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Villa, 895 F.2d at 1021 ("The court is not to reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner.").
Martinez, 64 F.3d at 174.
Id.
1. Entitlement to Benefits
Every individual who is insured for disability insurance benefits, has not reached retirement age, has filed an application for benefits, and is under a disability is entitled to receive disability insurance benefits. The term "disabled" or "disability" means the inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." A claimant shall be determined to be disabled only if his physical or mental impairment or impairments are so severe that he is unable to not only do his previous work, but cannot, considering his age, education, and work experience, participate in any other kind of substantial gainful work which exists in significant numbers in the national economy, regardless of whether such work exists in the area in which he lives, whether a specific job vacancy exists, or whether he would be hired if he applied for work.
Id. § 1382c(a)(3)(A).
Id. § 1382c(a)(3)(B).
2. Evaluation Process and Burden of Proof
Regulations set forth by the Commissioner prescribe that disability claims are to be evaluated according to a five-step process. A finding that a claimant is disabled or not disabled at any point in the process is conclusive and terminates the Commissioner's analysis.
20 C.F.R. § 404.1520 and 416.920 (2002).
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The first step involves determining whether the claimant is currently engaged in substantial gainful activity. If so, the claimant will be found not disabled regardless of his medical condition or his age, education, or work experience. The second step involves determining whether the claimant's impairment is severe. If it is not severe, the claimant is deemed not disabled. In the third step, the Commissioner compares the severe impairment with those on a list of specific impairments. If it meets or equals a listed impairment, the claimant is deemed disabled without considering his age, education, or work experience. If the impairment is not on the list, the Commissioner, in the fourth step, reviews the claimant's RFC and the demands of his past work. If he is still able to do his past work, he is not disabled. If he cannot perform his past work, the Commissioner moves to the fifth and final step of evaluating the claimant's ability, given his residual capacities, age, education, and work experience, to do other work. If he cannot do other work, he will be found disabled. The claimant bears the burden of proof at the first four steps of the sequential analysis. Once he has shown that he is unable to perform his previous work, the burden shifts to the Commissioner to show that there is other substantial gainful employment available that the claimant is not only physically able to perform, but also, taking into account his exertional and non-exertional limitations, able to maintain for a significant period of time. If the Commissioner adequately points to potential alternative employment, the burden shifts back to the claimant to prove that he is unable to perform the alternative work.
20 C.F.R. § 404.1520 and 416.920.
Id.
Id.
Id.
20 C.F.R. § 404.1520 and 416.920.
Id.
Id.
Id.
Id.
Leggett, 67 F.3d at 564.
Watson v. Barnhart, 288 F.3d 212, 217 (5th Cir. 2002).
Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989).
In the instant case, the ALJ reached his decision at step five of the evaluation process. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful employment since the date of his application for SSI. ALJ Blucher then concluded at steps two and three that plaintiff had an impairment or combination of impairments (major depression/bipolar disorder and asthma) which were severe, but did not meet or medically equal a listed impairment as of the date the plaintiff was last insured. At step four, the ALJ found that, although he was unable to return to his past relevant work, plaintiff retained the following residual functional capacity:
Transcript, at 12; ¶ 1, at 18.
Transcript, at 13, 14; ¶ 2, at 18. Notably, ALJ Blucher also found that plaintiff's thyroid condition was controlled by medication and was, therefore, not a severe impairment. ALJ Blucher further held that the evidence of record did not substantiate plaintiff's claim of an anxiety disorder. See Transcript, at 13.
Transcript, at 14, 15; ¶ 3, at 19.
Transcript, at 17; ¶ 7, at 19.
no exertional limitations, no exposure to heavy dust, etc.; perform simpler, unskilled jobs; have modest contact with others; and perform no high stress work.
Transcript, at 15; ¶ 6, at 19.
At step five, the ALJ held that given plaintiff's age (defined as an individual approaching advanced age), education (a high school education), and vocational experience (transferability of skills immaterial), plaintiff could perform work as a flagger construction, a cleaner/housekeeper, and a folder laundry. Based on the foregoing, ALJ Blucher concluded that plaintiff was not under a disability. B. Is the ALJ's November 12, 2002 Decision Supported by Substantial Evidence?
Transcript, at 15; ¶ 8, at 19.
Transcript, at 15; ¶ 9, at 19.
Transcript, at 15; ¶ 10, at 19.
Transcript, at 18; ¶ 11, at 19.
Transcript, at 12; ¶ 12, at 19.
Plaintiff challenges the ALJ's decision, asserting that the "record as a whole supports a listing level impairment for bipolar disorder under 12.04C" and that the ALJ's contrary conclusion "ignored the plaintiff's testimony, supported by his mother's testimony, the testimony of the vocational expert, the opinion of the psychiatric consultative examiner and the opinions of the state agency medical consultants." Plaintiff further argues that the ALJ substituted his own lay opinions for medical opinions in reaching the erroneous conclusions that plaintiff lived with his parents as a matter of convenience, rather than medical necessity, and that plaintiff's mental condition would not deteriorate if plaintiff were subjected to the pressures of a routine working environment. Plaintiff argues that these mistakes constitute reversible error and that substantial evidence does not support the ALJ's decision. In my opinion, plaintiff's grounds for reversal are meritorious. For that reason, I recommend that plaintiff's alternate request for relief — a remand for further development of the case — be GRANTED. 1. Does plaintiff's bipolar disorder meet or medically equal a listed impairment?
Docket Entry 10, at 5.
Id. , at 5-6.
See Docket Entry 10.
The Code of Federal Regulations contains an Appendix which enumerates the listed impairments and explains the criteria necessary for a medically determinable impairment to meet or medically equal a listed impairment. Section 12.04 of the Appendix is the section which addresses affective disorders. That section explains that an affective disorder meets or medically equals the requisite level of severity (such that a claimant's case can be adjudicated in his favor at step three of the sequential evaluation process) when either the A and B requirements are satisfied in combination or the C requirements are satisfied. The A criteria set forth the kinds of symptoms which establish that a disorder is of listing-level severity, while the B criteria set forth the kinds of interferences with daily or routine activities which establish that a disorder is of listing-level severity. On the other hand, the C criteria allow an affective disorder to meet or medically equal listing-level severity based on the history or progress of the disease. Specifically, the C criteria require:
See Appendix 1, Subpart P, 20 C.F.R. Part 404.
20 C.F.R. Ch. III, Part 404, Subpart P, App. 1, § 12.04.
Id.
C. Medically documented history of a chronic affective disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or
3. Current history of 1 or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.
In the instant case, plaintiff asserts that his bipolar disorder meets the C criteria for affective disorders because: (1) he has had a medically documented chronic affective disorder for at least two years; (2) a minimal increase in plaintiff's mental demands would cause him to decompensate; and (3) he has a history of one or more years' inability to function outside his highly supportive living arrangement — e.g., living with his parents. Although ALJ Blucher reviewed most of the medical evidence of record and made conclusions that plaintiff "would not decompensate if he got a job" and that he lived at home "for convenience rather than because of an inability to do otherwise," ALJ Blucher's findings regarding the same are not related to his analysis of the medical evidence of the record. In fact, ALJ Blucher does not cite any medical evidence that supports those aforementioned conclusions.
See Transcript, at 15.
While some of the medical records state that plaintiff's bipolar disorder was under control once plaintiff took his medications regularly and as prescribed, none of the treatment records hypothesized about the effects of routine work pressures on plaintiff's psychiatric conditions, nor did they discuss the medical circumstances underlying plaintiff's living arrangements.
See Transcript, at 166, 185, 187.
The evaluations completed by the state agency medical consultants are similarly unpersuasive. While the consultants checked a box on the evaluation form indicating that the C criteria were not present, the consultants failed to explain the basis for those findings.
Transcript, at 143, 162. Similarly, the testimonial evidence regarding the necessity for plaintiff's living arrangements was contradictory. Both plaintiff and his mother testified that plaintiff required his mother's assistance in taking his medication on time, every day. See Transcript, at 47. At another point in the hearing, however, plaintiff testified that he only requires his mother's assistance in obtaining the medication since he is without his own transportation. Transcript, at 49.
The only medical record from an examining or treating physician which discussed the criteria at issue appeared to conclude that plaintiff's mental condition might deteriorate in a work-like setting and that there was a medical basis for plaintiff's living arrangements. Specifically, the report of consultative examiner Dr. Kirby Turner, stated
Althought ( sic) the examinee is currently doing well this is secondary to his medicaiton ( sic). If this is stopped he will probably relapse into a bipolar disorder which would impair his ability to function independantly ( sic) or maintain continuious ( sic) employment.
It is possible that the examinee may very well undergo vocational rehabilitation and be somewhat employable but this is questionable.
He is currently doing well because of medications and being followed continuously by his parents.
Under stress the examinee would probably deteriorate, stop medication (long history of no insight), and relapse into his bipolar psychotic state.
Transcript, at 168 (emphasis added).
As this is the only record which discusses the medical reasons underlying plaintiff's living arrangements and the possible effects of plaintiff's returning to work, the ALJ was bound to obtain further medical evidence before finding that plaintiff's living situation was not derived out of medical necessity or that plaintiff would not deteriorate if he returned to work. Instead of obtaining such medical evidence, the ALJ made medical conclusions based on his own lay opinions. Time and again, the various circuits have warned that it is not the province of the ALJ to play doctor.
`But judges, including administrative law judges of the Social Security Administration, must be careful not to succumb to the temptation to play doctor . . . Common sense can mislead; lay intuitions about medical phenomena are often wrong.'
Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003), quoting Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990).
Because the ALJ substituted his own lay intuition for medical evidence, his conclusion that plaintiff's bipolar (affective) disorder did not meet or medically equal a listed impairment is not supported by the substantial evidence of the record. For these reasons, I recommend that this action be remanded with directions that the ALJ hold a supplemental hearing to obtain testimony from a medical expert regarding the medical necessity of plaintiff's living arrangements and the medical effects of routine work pressures on plaintiff's psychiatric condition. After he obtains this additional medical evidence, I further recommend that the ALJ be directed to re-assess whether plaintiff's bipolar disorder meets or medically equals a listed impairment.
VI. Recommendation
Based on the foregoing, I recommend that plaintiff's complaint be GRANTED and this case REMANDED for further proceedings consistent with this opinion. Specifically, I recommend that the ALJ be directed to hold a supplemental hearing in order to obtain testimony from a medical expert as to whether plaintiff's psychiatric condition would deteriorate if plaintiff returned to full time employment, whether plaintiff's living situation is medically necessary, and, similarly, whether plaintiff's bipolar disorder meets or medically equals a listed impairment.
VII. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn, 474 U.S. 140, 149-152 (1985).
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).