Hall v. SSA
Filing
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MEMORANDUM AND OPINION: The decision will be remanded for further consideration. Signed by Judge G. Wix Unthank on 12/22/2011.(MRS)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
CIVIL ACTION NO. 11-46-GWU
FAITH NICHOLE HALL,
VS.
PLAINTIFF,
MEMORANDUM OPINION
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.
INTRODUCTION
The plaintiff brought this action to obtain judicial review of an administrative
denial of her application for Supplemental Security Income (SSI). The appeal is
currently before the court on cross-motions for summary judgment.
APPLICABLE LAW
The Commissioner is required to follow a five-step sequential evaluation
process in assessing whether a claimant is disabled.
1.
Is the claimant currently engaged in substantial gainful activity?
If so, the claimant is not disabled and the claim is denied.
2.
If the claimant is not currently engaged in substantial gainful
activity, does he have any “severe” impairment or combination
of impairments--i.e., any impairments significantly limiting his
physical or mental ability to do basic work activities? If not, a
finding of non-disability is made and the claim is denied.
3.
The third step requires the Commissioner to determine
whether the claimant’s severe impairment(s) or combination of
impairments meets or equals in severity an impairment listed
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in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the Listing of
Impairments). If so, disability is conclusively presumed and
benefits are awarded.
4.
At the fourth step the Commissioner must determine whether
the claimant retains the residual functional capacity to perform
the physical and mental demands of his past relevant work. If
so, the claimant is not disabled and the claim is denied. If the
plaintiff carries this burden, a prima facie case of disability is
established.
5.
If the plaintiff has carried his burden of proof through the first
four steps, at the fifth step the burden shifts to the
Commissioner to show that the claimant can perform any other
substantial gainful activity which exists in the national
economy, considering his residual functional capacity, age,
education, and past work experience.
20 C.F.R. §§ 404.1520; 416.920; Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.
1984); Walters v. Commissioner of Social Security, 127 F.3d 525, 531 (6th Cir.
1997).
Review of the Commissioner's decision is limited in scope to determining
whether the findings of fact made are supported by substantial evidence. Jones v.
Secretary of Health and Human Services, 945 F.2d 1365, 1368-1369 (6th Cir.
1991). This "substantial evidence" is "such evidence as a reasonable mind shall
accept as adequate to support a conclusion;" it is based on the record as a whole
and must take into account whatever in the record fairly detracts from its weight.
Garner, 745 F.2d at 387.
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In reviewing the record, the court must work with the medical evidence before
it, despite the plaintiff's claims that he was unable to afford extensive medical workups. Gooch v. Secretary of Health and Human Services, 833 F.2d 589, 592 (6th
Cir. 1987). Further, a failure to seek treatment for a period of time may be a factor
to be considered against the plaintiff, Hale v. Secretary of Health and Human
Services, 816 F.2d 1078, 1082 (6th Cir. 1987), unless a claimant simply has no way
to afford or obtain treatment to remedy his condition, McKnight v. Sullivan, 927 F.2d
241, 242 (6th Cir. 1990).
Additional information concerning the specific steps in the test is in order.
Step four refers to the ability to return to one's past relevant category of work.
Studaway v. Secretary, 815 F.2d 1074, 1076 (6th Cir. 1987). The plaintiff is said to
make out a prima facie case by proving that he or she is unable to return to work.
Cf. Lashley v. Secretary of Health and Human Services, 708 F.2d 1048, 1053 (6th
Cir. 1983). However, both 20 C.F.R. § 416.965(a) and 20 C.F.R. § 404.1563
provide that an individual with only off-and-on work experience is considered to
have had no work experience at all. Thus, jobs held for only a brief tenure may not
form the basis of the Commissioner's decision that the plaintiff has not made out its
case. Id. at 1053.
Once the case is made, however, if the Commissioner has failed to properly
prove that there is work in the national economy which the plaintiff can perform,
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then an award of benefits may, under certain circumstances, be had. E.g., Faucher
v. Secretary of Health and Human Services, 17 F.3d 171 (6th Cir. 1994). One of the
ways for the Commissioner to perform this task is through the use of the medical
vocational guidelines which appear at 20 C.F.R. Part 404, Subpart P, Appendix 2
and analyze factors such as residual functional capacity, age, education and work
experience.
One of the residual functional capacity levels used in the guidelines, called
"light" level work, involves lifting no more than twenty pounds at a time with frequent
lifting or carrying of objects weighing up to ten pounds; a job is listed in this category
if it encompasses a great deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls; by definition,
a person capable of this level of activity must have the ability to do substantially all
these activities. 20 C.F.R. § 404.1567(b). "Sedentary work" is defined as having
the capacity to lift no more than ten pounds at a time and occasionally lift or carry
small articles and an occasional amount of walking and standing. 20 C.F.R. §
404.1567(a), 416.967(a).
However, when a claimant suffers from an impairment "that significantly
diminishes his capacity to work, but does not manifest itself as a limitation on
strength, for example, where a claimant suffers from a mental illness . . .
manipulative restrictions . . . or heightened sensitivity to environmental
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contaminants . . . rote application of the grid [guidelines] is inappropriate . . . ."
Abbott v. Sullivan, 905 F.2d 918, 926 (6th Cir. 1990).
If this non-exertional
impairment is significant, the Commissioner may still use the rules as a framework
for decision-making, 20 C.F.R. Part 404, Subpart P, Appendix 2, Rule 200.00(e);
however, merely using the term "framework" in the text of the decision is insufficient,
if a fair reading of the record reveals that the agency relied entirely on the grid. Id.
In such cases, the agency may be required to consult a vocational specialist.
Damron v. Secretary, 778 F.2d 279, 282 (6th Cir. 1985). Even then, substantial
evidence to support the Commissioner's decision may be produced through reliance
on this expert testimony only if the hypothetical question given to the expert
accurately portrays the plaintiff's physical and mental impairments. Varley v.
Secretary of Health and Human Services, 820 F.2d 777 (6th Cir. 1987).
DISCUSSION
The plaintiff, Faith Nichole Hall, was found by an Administrative Law Judge
(ALJ) to have “severe” impairments consisting of a bipolar disorder, an anxiety
disorder, and attention deficit and hyperactivity disorder. (Tr. 49). Nevertheless,
based in part on the testimony of a Vocational Expert (VE), the ALJ determined that
the plaintiff retained the residual functional capacity to perform a significant number
of jobs existing in the economy, and therefore was not entitled to benefits. (Tr. 5153). The Appeals Council declined to review, and this action followed.
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At the administrative hearing, the ALJ asked the VE whether a person of the
plaintiff’s age of 25, high school equivalency education, and lack of relevant work
experience could perform any jobs if she had no exertional limitations, and was
mentally limited to “simple to detailed” instructions, was able to sustain attention to
complete repetitive, object-focused tasks, could tolerate coworkers and supervisors
but had a limited but not precluded ability to be in contact with the public, and could
adapt to routine changes. (Tr. 24). The VE responded that there were jobs that
such a person could perform, and proceeded to give the numbers in which they
existed in the state and national economies. (Id.).
On appeal, this court must determine whether the administrative decision is
supported by substantial evidence.
The plaintiff alleged disability due to a bipolar disorder, attention deficit
disorder, attention deficit hyperactivity disorder, and manic depression, which she
stated caused mood swings, an inability to “think straight,” and a feeling of stress
being around people. (Tr. 87). There is a large volume of evidence from prior to
the alleged onset date of December 19, 2007 reflecting treatment for such
conditions as oppositional defiant disorder (Tr. 160), a dysthymic disorder (Tr. 234),
a bipolar disorder, personality disorder, and rule out post traumatic stress disorder
(Tr. 242). In 2002, at the age of 18, a consultative psychological examiner, Dr. Gary
Maryman, opined that while the plaintiff could understand, remember, and carry out
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fairly simple instructions and tasks, she had a minimal ability to relate appropriately
to fellow workers and supervisors and was not a good candidate for interacting and
dealing with the general public on a regular basis. (Tr. 234). He felt that she could
adjust and adapt only to medium or lower stress work and was not equipped to
function in a more fast-paced and high pressure work atmosphere. (Id.).
The only examining source opinion from after the alleged onset date came
from Psychologist Jessica M. Huett, who conducted a consultative examination on
behalf of the state agency on April 2, 2008. (Tr. 289). She noted that the plaintiff
described a history of bipolar disorder and attention deficit hyperactivity disorder.
Dr. Huett noted that her motor activity was “restless” and she appeared to be
anxious with “somewhat distractible” attention and variable concentration. (Tr. 29091). Her facial expressions were tense, her affect was restricted, and her mood was
pessimistic. (Tr. 291). She had difficulty interpreting simple proverbs and poor
insight, and stated that she felt “out of whack” because she was off her medication.
(Id.). She told the psychologist that Celexa had been helpful in the past, but she
was apparently not taking it because she was 15 weeks pregnant. (Tr. 290). Dr.
Huett listed an impression of a bipolar disorder, an anxiety disorder, and attention
deficit hyperactivity disorder, with a Global Assessment of Functioning (GAF) score
of 50. (Tr. 292). In terms of functional restrictions, Dr. Huett felt that the plaintiff
would have a moderately limited ability to understand, remember, and carry out
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simple instructions and sustain attention and concentration toward the performance
of simple, repetitive tasks, but she would have a “marked” limitation in her ability to
tolerate the stress and pressure of day-to-day employment and respond
appropriately to supervision, coworkers, and work pressures in a work setting. (Id.).
She did not think that the plaintiff could manage benefits in her own interest.
A non-examining state agency psychologist, Dr. Steven Scher, completed a
mental residual functional capacity (RFC) assessment form on April 24, 2008,
indicating in Part I, designated “Summary Conclusions,” that the plaintiff would have
a moderately limited ability to understand, remember, and carry out detailed
instructions, maintain attention and concentration for extended periods, complete
a normal workday and workweek without interruptions from psychologically-based
symptoms and to perform at a consistent pace without an unreasonable number
and length of rest periods, to interact appropriately with the general public, to accept
instructions and respond appropriately to criticism from supervisors, and to respond
appropriately to changes in the work setting. (Tr. 294-5). In Part III of the form,
designated “Functional Capacity Assessment,” Dr. Scher opined that the plaintiff’s
allegations of mental limitations with memory, concentration, task completion,
understanding, following instructions, and getting along with others were partially
credible. He noted that she had a lengthy psychiatric history. He felt that the
marked limitations described by Dr. Huett were not fully supported by objective
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evidence, noting that the plaintiff was the primary caretaker for her children although
she gets some family support, could manage her activities of daily living and chores,
and could drive independently. (Tr. 296). Additionally, he had previously cited a
report from the Pulaski County Detention Center which stated that she had initially
reported no problems on entry, June 27, 2006, but shortly before her release on
October 14, 2007 she reported a mental health history and was started on
medication. Dr. Scher stated that she retained the mental ability to understand and
remember simple to slightly detailed instructions, sustain attention to complete
repetitive, object-focused tasks, tolerate coworkers and supervisors with limited but
not precluded public contact, and adapt to routine changes. (Id.). This wording was
followed by the ALJ in the hypothetical questions. Although the instructions in
Section III of the form request the reviewer to record the elaborations on the
capacities listed in Section I, including any information which clarifies limitation or
function, Dr. Scher did not reconcile his earlier indication that the plaintiff would
have limitations in her ability to complete a normal workday and workweek and to
perform at a consistent pace, or explain why he apparently concluded that she could
tolerate supervisors with no particular restrictions after indicating that she would be
“moderately limited” in her ability to accept instructions and respond appropriately
to their criticism. (Tr. 295).
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Another non-reviewing state agency source, Dr. Ilze Sillers, completed a
mental RFC assessment listing the same limitations in Part I (Tr. 326-27) and
stating in Part III that she agreed with Dr. Scher (Tr. 328). She added that the third
party limitations reported by the plaintiff’s family were not fully supported by her
ability to obtain a GED or by the Detention Center report that she was on work
release while incarcerated. (Id.).
In his decision, the ALJ stated that he accepted the assessments of Drs.
Scher and Sillers. (Tr. 52). He asserted that they were consistent with the weight
of the medical evidence. (Id.). However, his summary of Dr. Huett’s report
abbreviated the psychologist’s findings by saying that Dr. Huett had concluded she
had moderate limitations of her ability to handle simple routine tasks. (Tr. 50). The
ALJ said nothing about the marked limitations on stress and pressure and the ability
to respond appropriately to supervision, coworkers, and work pressures. (Tr. 292).
The reliability of the ALJ’s conclusions is cast into doubt by his failure to
mention the restrictions in Dr. Huett’s report. Even if the psychologist’s opinion as
a one-time examiner is not entitled to complete deference, it is difficult to see how
the fact finder could conclude that the state agency opinions were consistent with
the evidence without dealing with the discrepancy between Dr. Huett’s conclusion
and the non-examiners’ conclusions. In addition, the rationale provided by the state
agency examiners is dubious.
In addition to failing to explain the internal
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contradictions in their reports, Dr. Scher appeared to rely greatly on a very brief
report from a nurse at the Pulaski County Detention Center which cryptically states
that the plaintiff had initially denied a psychiatric history until she described it in
October, 2007 and was put on medication. (Tr. 281). This summary is at least
somewhat at odds with the copy of the plaintiff’s actual medical request form, which
reveals that the plaintiff did complain of her mental problems and added that “the
jail had me on Prozac and I did not like the way it made me feel.” (Tr. 284). If the
jail was providing Prozac all along, it would appear that the Detention Center nurse
was incorrect that mental problems were initially denied.
In view of the many discrepancies outlined above, the court concludes that
it was erroneous for the ALJ to rely on the “Summary Conclusions” in the state
agency mental RFC forms, as these conclusions were internally inconsistent and
not based on substantial evidence.
The decision will be remanded for further consideration.
This the 22nd day of December, 2011.
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