DECKARD et al v. ASTRUE

Filing 28

ENTRY DISCUSSING COMPLAINT FOR JUDICIAL REVIEW - The ALJ's conclusion that Deckard was not disabled is not supported by substantial evidence. The court, therefore, is required to remand the case to the ALJ for further consideration. Judgment consistent with this Entry shall now issue. Signed by Judge Sarah Evans Barker on 8/22/2011.(JLM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

DIANA J. DECKARD,
Plaintiff,
vs.
MICHAEL J. ASTRUE, Commissioner
of the Social Security Administration,
Defendant.

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4:10-cv-067-SEB-WGH

Entry Discussing Complaint for Judicial Review
Diana J. Deckard (“Deckard”) seeks judicial review of the denial by the
Commissioner of the Social Security Administration (“Commissioner”) of her applications
for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under
the Social Security Act (the "Act"), 42 U.S.C. § 301, et seq.
For the reasons explained in this Entry, the Commissioner’s decision must be
remanded for further proceedings.

I. Background
Deckard filed applications for SSI and DIB on September 7, 2004, and October 6,
2004, respectively, alleging an onset date of disability of May 1, 2004. Her applications
were denied initially and upon reconsideration. Her request for a hearing before an
Administrative Law Judge (“ALJ”) was granted and a hearing was conducted on March 3,
2008. Deckard appeared, accompanied by her attorney. Medical and other records were
introduced into evidence. Deckard, a medical expert, and a vocational expert testified at
the hearing. The ALJ issued a decision denying benefits on July 16, 2008. On May 11,
2010, the Appeals Council denied Deckard’s request for review, making the ALJ’s decision
final. See Getch v. Astrue, 539 F.3d 473, 480 (7th Cir. 2008). This action for judicial review
of the ALJ’s decision followed. The court has jurisdiction over this action pursuant to 42
U.S.C. § 405(g), which provides that "[a]ny individual, after any final decision of the
Commissioner of Social Security made after a hearing to which he was a party, irrespective
of the amount in controversy, may obtain a review of such decision by a civil action . . . in
[a] district court of the United States."

The ALJ’s decision included the following findings: (1) Deckard met the insured
status requirements of the Act through December 31, 2009; (2) Deckard had not engaged
in substantial gainful activity since May 1, 2004, the alleged onset date; (3) Deckard had
the following severe impairments: degenerative disc and joint disease of the cervical spine;
status post 1996 cervical disc surgery; degenerative joint disease of the lumbar spine;
bilateral carpal tunnel syndrome; deformities of the feet, including pes planus and hallux
valgus deformities of both feet and mild spurring in the dorsum of the right mid-foot;
osteoarthritis of both knees; fibromyalgia; and depression;1 (4) Deckard did not have an
impairment or combination of impairments that met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; (5) Deckard had the residual
functional capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. §
404.1567(a) and 416.967(a) except that she could not bend, squat, or stoop more than
occasionally, she could not kneel or crawl, she must avoid work at unprotected heights and
around dangerous moving machinery, and she should not have exposure to concentrated
vibrations; (6) Deckard was unable to perform any past relevant work; (7) Deckard was
born on May 18, 1963 and was 40 years old, which is defined as a younger individual age
18-44, on the alleged disability onset date of May 1, 2004; (8) Deckard had at least a high
school education, she was able to communicate in English, and she had acquired work
skills from past relevant work; and (9) considering Deckard’s age, education, work
experience, and RFC, Deckard had acquired work skills from past relevant work that were
transferable to other occupations with jobs existing in significant numbers in the national
economy. With these findings in hand, and through the application of applicable rules and
regulations, the ALJ concluded that Deckard had not been under a “disability,” as defined
in the Act, from May 1, 2004, through the date of the ALJ’s decision.
II. Discussion
A. Applicable Law
To be eligible for DIB and SSI, a claimant must prove she is unable to engage in any
substantial gainful activity by reason of a 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. 42 U.S.C. §§
423(d)(1)(A); 1382c(a)(3)(A). To establish disability, the plaintiff is required to present
medical evidence of an impairment that results "from anatomical, physiological, or
psychological abnormalities which can be shown by medically acceptable clinical and
laboratory diagnostic techniques. A physical or mental impairment must be established by
medical evidence consisting of signs, symptoms, and laboratory findings, not only by [a
claimant's] statement of symptoms." 20 C.F.R. §§ 416.908; 404.1508.
A five-step inquiry outlined in Social Security regulations is used to determine
disability status. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351-52 (7th Cir. 2005).

1

Although listed as a severe impairment in the ALJ’s list of severe impairments, in the
body of the ALJ’s decision, he concluded that Deckard’s depression was not severe. (R. at 19).

2

The ALJ must consider whether: (1) the claimant is presently employed; (2)
the claimant has a severe impairment or combination of impairments; (3) the
claimant's impairment meets or equals any impairment listed in the
regulations as being so severe as to preclude substantial gainful activity; (4)
the claimant's residual functional capacity leaves him unable to perform his
past relevant work; and (5) the claimant is unable to perform any other work
existing in significant numbers in the national economy. 20 C.F.R. §§
404.1520, 416.920. A finding of disability requires an affirmative answer at
either step three or step five.
Id. The claimant bears the burden of proof at steps one through four, and at step five the
burden shifts to the Commissioner. Id. at 352.
The task a court faces in a case such as this is not to attempt a de novo
determination of the plaintiff’s entitlement to benefits, but to decide if the Commissioner's
decision was supported by substantial evidence and otherwise is free of legal error.
Kendrick v. Shalala, 998 F.2d 455, 458 (7th Cir. 1993). "Substantial evidence" has been
defined as "'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 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)).
B.

Analysis

In this case, the ALJ determined that Deckard had severe impairments consisting
of degenerative disc and joint disease of the cervical spine, degenerative joint disease of
the lumbar spine, bilateral carpal tunnel syndrome, deformities of the feet, osteoarthritis of
both knees, and fibromyalgia, but that she could perform some sedentary work with certain
restrictions. (R. at 21-22).2 Deckard argues that the ALJ’s decision is not supported by
substantial evidence.
Deckard first argues that the ALJ violated her due process rights by failing to
schedule a supplemental hearing to allow cross-examination of a consulting psychologist
Dr. Kimberly Green. This argument relates also to Deckard’s claims that the ALJ erred in
finding that Deckard’s depression was not a severe impairment and in not assigning greater
limitations based on her symptoms of depression.3

2

The court notes that the numbering of the pages of the record is inaccurate in some
places. For instance, page 28 of the ALJ’s decision is followed by a second page 20, a second
page 21, and then a second page 22. The court will simply refer to the page numbers recorded
on each page even though there may be more than one page having that number.
3

The Commissioner initially argued that Deckard failed to request a supplemental
hearing. The court directed that the record be supplemented with a copy of the letter submitted
by Deckard’s counsel requesting a supplemental hearing to afford him the opportunity to crossexamine Dr. Green. (docket 20). The parties have now supplemented their arguments as to the
due process claim.

3

With his letter of June 12, 2008, the ALJ provided Deckard with a copy of a
consultative psychological examination report by Dr. Kimberly Green. (R. at 138). The ALJ
informed Deckard that she could request an opportunity to question Dr. Green. Id. The ALJ
stated, “I will grant a request to question a witness if I determine that questioning the
witness is needed to inquire fully into the issues.” Id. The Commissioner concedes that a
claimant should be given the opportunity to cross-examine a witness such as Dr. Green
if the cross-examination is required for the full and true disclosure of the facts. See 5 U.S.C.
§ 556(d) (“A party is entitled to present his case or defense by oral or documentary
evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be
required for a full and true disclosure of the facts.”). The Commissioner contends that in this
case, cross-examination of Dr. Green was not required because the ALJ considered
Deckard’s objections that the opinion of treating physician Dr. Lambrecht should have been
given greater weight than that of Dr. Green. The Commissioner asserts that a supplemental
hearing was not necessary to establish the extent of the treatment relationships between
Deckard and Dr. Lambrecht and Dr. Green, respectively. “The ALJ has discretion to decide
when cross-examination is warranted.” Butera v. Apfel, 173 F.3d 1049, 1059 (7th Cir. 1999)
(internal quotation omitted).
In a June 26, 2008, response to the ALJ, Deckard’s counsel objected first on the
basis that the foundation of Dr. Green’s report was not specific in describing what medical
records were reviewed. (R. at 451). Deckard asserts that Dr. Green did not disclose
whether she reviewed the records of treating physician Dr. Lambrecht prior to rendering her
opinion as to the severity of Deckard’s depression. Id. Deckard also pointed out that Dr.
Green’s opinions were not based on any objective psychological testing and was instead
based only on a mental status examination. (R. at 452). Deckard requested that the
supplemental hearing be scheduled so that counsel could inquire into the basis for Dr.
Green’s findings and to explore why her assessment was “so much at odds with the
assessment of the long-standing treating physician.” Id.
The ALJ acknowledged Deckard’s objection to Dr. Green’s report and her request
for a supplemental hearing, but concluded that it was not necessary to hold a supplemental
hearing for cross-examination of Dr. Green. (R. at 16). The ALJ stated that he had “given
the appropriate weight to Dr. Green’s evaluation and to the records of Dr. Lambrecht, the
claimant’s treating physician.” Id.
Dr. Lambrecht, an internal medicine specialist who had treated Deckard for a
number of years, opined that Deckard’s “depression, by itself, is of such severity that it
would leave Diana with very little useful functional ability.” (R. at 28, 359). Dr. Lambrecht
explained in a letter dated September 6, 2007, that Deckard’s physical and mental
problems of fibromyalgia, cervical pain, obesity, and depression, exacerbated each other
from a functional standpoint. (R. at 359). Dr. Lambrecht discussed Deckard’s difficulties in
sustaining attention to tasks, working at a consistent pace, concentrating for extended
periods, and working in proximity to others without distracting them with symptoms of pain
and depression. Id.

4

The ALJ explained that he gave less weight to the opinion of Dr. Lambrecht because
she was not a mental health professional and because her treatment was focused primarily
on Deckard’s physical symptoms. (R. at 28). As noted, the Commissioner argues that this
explanation negated any need to allow Deckard the opportunity to cross-examine Dr.
Green. The fact that the ALJ considered the respective specialities of the various
physicians in determining the weight to give to each of their opinions, however, does not
squarely address the issue at hand.
The threshold question is whether Deckard should have been permitted to crossexamine Dr. Green. Deckard does not argue that Dr. Lambrecht’s tenure with Deckard
alone requires her opinions to be given greater weight. Deckard has argued since the
receipt of the ALJ’s cover letter that certain facts were lacking from Dr. Green’s report. In
light of the differences between the physicians’ views of Deckard’s mental health
symptoms, Deckard questions the basis for and foundation of Dr. Green’s opinion. Deckard
requested the opportunity to explore such issues through cross-examination. Those issues
are not addressed by the ALJ, nor could they be addressed on the present record.
Deckard’s objections and reasons for her request for cross-examination of the witness went
beyond the fact that Dr. Lambrecht was a long-term treating physician and Dr. Green saw
Deckard once. The ALJ’s consideration of the known treatment history of each physician
did not bring to light the “full and true disclosure of the facts” sought by Deckard. Deckard’s
due process claim is well taken. The ALJ abused his discretion in denying Deckard’s
request. On remand, the ALJ shall permit Deckard to cross-examine the consulting
psychologist Dr. Kimberly Green.
The balance of Deckard’s claims of error in this case rest predominantly on her
contention that her mental impairment and symptoms of depression were not adequately
considered by the ALJ. Deckard argues that the ALJ ignored her psychological symptoms
in determining her RFC and that the hypothetical question posed to the vocational expert
failed to include limitations caused by psychological problems. In addition, Deckard argues
that the ALJ should have discussed and explained the weight given to the statements
provided by Deckard’s husband and how such statements related to Deckard’s credibility.
Because on remand the ALJ will be reconsidering the evidence as to Deckard’s mental
impairments and because his assessment of Deckard’s symptoms caused by depression
may change, the court need not address the merits of each of these remaining claims. On
remand, however, the ALJ shall also discuss the statements made by Deckard’s husband
and explain whether and to what extent he considered such statements in determining
Deckard’s ability to function on a daily basis.

5

III. Conclusion
For the reasons set forth above, the ALJ’s conclusion that Deckard was not disabled
is not supported by substantial evidence. The court, therefore, is required to remand the
case to the ALJ for further consideration. Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991) (a
court may remand the case after passing on its merits and issuing a judgment affirming,
modifying, or reversing the Commissioner’s decision, a "sentence four" remand). Judgment
consistent with this Entry shall now issue.
IT IS SO ORDERED.

Date:

08/22/2011

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana