Bourque v. Astrue

Filing 12

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Elise Bourque. It is RECOMMENDED that the Commissioner's decision be REVERSED and that benefits be awarded consistent with an onset date of May 24, 2005. Objections to R&R due by 9/24/2009. Signed by Magistrate Judge C Michael Hill on 9/4/09. (crt,Smith, C)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA L A F A Y E T T E -O P E L O U S A S DIVISION E L I S E BOURQUE V ER SU S M I C H A E L J. ASTRUE, C O M M . OF SOCIAL SECURITY * * * C I V I L ACTION NO. 08-0567 J U D G E MELANCON MAGISTRATE JUDGE HILL

REPORT AND RECOMMENDATION T h is social security appeal was referred to me for review, Report and R e c o m m e n d a tio n pursuant to this Court's Standing Order of July 8, 1993. After a review o f the entire administrative record and the briefs filed by the parties, and pursuant to 42 U .S .C . § 405(g), I find that there is not substantial evidence in the record to support the C o m m is s io n e r's decision of non-disability. Therefore, it is recommended that the C o m m is s io n e r's decision be REVERSED. Background and Procedural History E lis e Bourque, born November 11, 1965, filed an application for supplemental se c u rity income on June 27, 2005, alleging disability beginning May 24, 2005, due to a s th m a and psychological disorders. The claim was denied initially on January 19, 2006. A request for a hearing before an Administrative Law Judge ("ALJ") was timely filed, a n d a hearing was held on May 8, 2007, in Lafayette, Louisiana. (Tr. 246-272). Claimant, represented by attorney William Ziegler, appeared and testified. Lionel J. B o rd e lo n , an impartial vocational expert ("VE"), also testified at the hearing.

O n August 30, 2007, an unfavorable decision was issued by the ALJ. (Tr. 16-24). An appeal was taken by claimant to the Appeals Council on September 17, 2007, which d e n ie d review on April 4, 2008. (Tr. 10, 4). After that denial, the ALJ's decision became th e final decision of the Commissioner. Claimant then filed the instant suit pursuant to 42 U .S .C . § 405(g). S ta n d a r d of Review T h e court's review is restricted under 42 U.S.C. § 405(g) to two inquiries: (1) w h e th e r the Commissioner's decision is supported by substantial evidence in the record; a n d (2) whether the decision comports with the relevant legal standards. Carey v. Apfel, 2 3 0 F.3d 131, 136 (5 th Cir. 2000); Anthony v. Sullivan, 954 F.2d 289, 292 (5 th Cir. 1992); G re e n sp a n v. Shalala, 38 F.3d 232, 236 (5 th Cir. 1994). Where the Commissioner's d e c is io n is supported by substantial evidence, the findings therein are conclusive and m u s t be affirmed. Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 28 L.Ed.2d 8 4 2 (1971). The Commissioner's decision is not supported by substantial evidence when th e decision is reached by applying the improper legal standards. Singletary v. Bowen, 7 9 8 F.2d 818 (5th Cir.1986).1 While substantial evidence lies somewhere between a s c in tilla and a preponderance, substantial evidence clearly requires "such relevant

Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a c o n c l u s i o n . Carey, 230 F.3d at 136; Anthony, 954 F.2d at 292; Carrier v. Sullivan, 944 F.2d 243, 245 (5 th Cir. 1 9 9 1 ) . The court may not re-weigh the evidence in the record, nor substitute its judgment for that of the C o m m i s s i o n e r , even if the preponderance of the evidence does not support the Commissioner's conclusion. Carey, 2 3 0 F.3d at 136; Johnson v. Bowen, 864 F.2d 340, 343 (5 th Cir. 1988). A finding of no substantial evidence is a p p r o p r i a t e only if no credible evidentiary choices or medical findings exist to support the decision. Johnson, 864 F .2 d at 343.

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e v id e n c e as a reasonable mind might accept as adequate to support a conclusion." Muse v . Sullivan, 925 F.2d 785, 789 (5th Cir.1991). Analysis of Impairments T o be entitled to benefits under the Social Security Act, claimant must prove that s h e is disabled according to the specifications of the Act. Leggett v. Chater, 67 F.3d 558, 5 6 3 -6 4 (5 th Cir. 1995); Abshire v. Bowen, 848 F.2d 638, 640 (5 th Cir. 1988). The d e f in itio n of disability under the Social Security Act is "the inability to engage in any s u b s ta n tia l gainful activity by reason of any medically-determinable physical or mental im p a irm e n t which can be expected to result in death or which has lasted or can be e x p e cte d to last for a continuous period of not less than 12 months." 42 U.S.C. § 4 2 3 (d)(1 )(a); Anthony v. Sullivan, 954 F.2d at 292. In determining whether a claimant is capable of performing substantial gainful a c tiv ity, the Secretary uses a five-step sequential procedure set forth in 20 C.F.R. § 4 0 4 .1 5 2 0 (b )-(f ) (1992).2 When a mental disability claim is made, such as affective and d ep ressive disorders and bipolar syndrome here, the Commissioner utilizes a corollary seq u en tial procedure for determining the merits of the claim. Essentially, this procedure
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The procedure is as follows: 1 . I f a person is engaged in substantial gainful activity, he will not be found disabled regardless of medical fin d in g s . 2 . A person who does not have a "severe impairment" will not be found to be disabled. 3 . A person who meets the criteria in the list of impairments in Appendix 1 of the regulations will be c o n s i d e r e d disabled without consideration of vocational factors. 4 . I f a person can still perform his past work, he is not disabled. 5 . I f a person's impairment prevents him from performing his past work, other factors including age, e d u c a t i o n , past work experience, and residual functional capacity must be considered to determine if o t h e r work can be performed.

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su b stitu tes specialized rules at step 2 for determining whether a mental impairment is se v e re , and also provides detailed guidelines for making the step 3 determination as to w h e th e r the mental impairment meets or exceeds the Listings. The Regulations require: [ T ]h e ALJ to identify specifically the claimant's mental impairments, rate th e degree of functional limitation resulting from each in four broad f u n c tio n a l areas, and determine the severity of each impairment. Furthermore, § 404.1520a(e) provides that the ALJ must document his a p p lic a tio n of this technique to the claimant's mental impairments. S a tte r w h ite v. Barnhart, 44 Fed. Appx. 652 (5 th Cir. 2002) (unpublished).3 A t step one, the ALJ determined that claimant had not engaged in substantial g a in f u l activity since June 27, 2005, the application date. (Tr. 18). At step two, the ALJ d e te rm in e d that claimant had the following severe impairments: asthma, schizoaffective d isord er, and a personality disorder. At step three, the ALJ found that claimant's c o m b in a tio n of impairments did not meet or medically equal one of the listed im p airm en t s in 20 C.F.R. Part 404, Subpt. P, Appendix 1. (Tr. 19). Although claimant's a tto rn e y argued that the claimant's condition met Listing 12.04 (Affective Disorders) and p o s s ib ly 12.05 (Mental Retardation), the ALJ found that the medical evidence supported th e conclusion that her condition met neither of those listings, nor Listing 12.03 (S c h izo p h re n ic, Paranoid, or Other Psychotic Disorders) nor 12.08 (Personality D is o rd e rs ). In making this finding, the ALJ considered whether the "paragraph B"

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For a succinct summary of the current law, see Serrano-Diaz v. Barnhart, 2004 W L 2431693, *6 (E.D.Pa.

2 0 0 4 ).

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c rite ria for mental impairments were satisfied.4 Because he found that claimant's mental im p a irm e n ts did not cause at least two "marked" limitations or one "marked" limitation a n d "repeated" episodes of decompensation, the ALJ found that the "paragraph B" criteria were not satisfied. (Tr. 20). T h e ALJ found that claimant had the residual functional capacity ("RFC") to p e rf o rm a full range of work at all exertional levels but with the following nonexertional lim ita tio n s : the claimant is limited to simple, one-to-two step job instructions with limited in te ra c tio n with the public. (Tr. 20). Claimant must also work in an environment with no e x c e s s iv e exposure to pulmonary irritants. A t step four, the ALJ found that claimant had no past relevant work. (Tr. 22). At s te p 5, based on VE testimony, the ALJ found that considering claimant's age, e d u c atio n a l background, work experience, and RFC for a wide range of all levels of w o rk , claimant could perform other work that exists in significant numbers in the national e c o n o m y such as a fast food worker, an assembler, and a handpacker. Thus, the ALJ f o u n d claimant not disabled. (Tr. 23).

Subpart B (of Listings 12.03, 12.04, and 12.08) requires at least two of the following: ( 1 ) marked restriction of activities of daily living; or ( 2 ) marked difficulties in maintaining social functioning; or (3) deficiencies of concentration, persistence or pace resulting in frequent failure to complete tasks in a timely manner; or ( 4 ) repeated episodes of deterioration or decompensation in work or work-like settings which c a u s e the individual to withdraw from that situation or to experience exacerbation of signs and sym p to m s. 20 C.F.R. Pt. 404, Subpt. P., App. 1, §§ 12.03, 12.04, 12.08.

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Assignment of Errors C laim an t alleges the following error:5 I. T h e ALJ erred in his assessment of claimant's residual functional capacity, re su ltin g in a failure to sustain his burden at step 5, erroneously relying upon the te stim o n y of the vocational expert which was given in response to a defective h yp o th e tic a l question. A d m in is tr a tiv e Record I. M e d ic a l Evidence A . Report from Dr. Howard Alleman dated 2004. Dr. Alleman diagnosed claim an t with asthma and prescribed medication for same. (Tr. 103). B. Records from Abram Kaplan Memorial Hospital dated June 6, 2004 to A p r il 21, 2005. On June 6, 2004, claimant presented at the Emergency Room ("ER") a f te r having been involved in a motor vehicle accident. (Tr. 129). She reported a h e a d ac h e as well as neck and back pain. A Radiology report indicated CT scans of the b ra in , cervical and lumbar spine were all normal. (Tr. 150). C. Letter from Maria Hebert, M.S.W., dated July 26, 2005. Ms. Hebert in d ic a te d that claimant was admitted to the Crowley Mental Health Center ("CMHC") on J u n e 24, 2005.6 (Tr. 151). Her symptoms included: depressed mood, frequent crying

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See claimant's brief. [rec. doc. 9, p. 2]. It is unclear from the record whether claimant was admitted as an in-patient at CMHC.

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s p e lls , sleep disturbance, appetite disturbance, mood swings, and feelings of helplessness, h o p e le ss n e ss , and worthlessness. Dr. John Dauphin noted a diagnosis of Bipolar Disorder (2 9 6 .8 9 ), Post Traumatic Stress Disorder (309.81), and Mild Mental Retardation (317.00). Her medications included: Risperdol (1mg/twice a day), Trazadone (100-200mg at b e d tim e ) , and Vistaril (50mg/three times a day) as needed for anxiety. It was Ms. H e b e rt's opinion that claimant could not maintain a job. D . Records from CMHC from June 24, 2005 to November, 30, 2005. Claimant w a s referred to CMHC by Tyler Mental Health in June of 2005. (Tr. 210). She reported th a t she had just moved from California, where she was seeing a psychiatrist, to Kaplan, L o u is ia n a . She admitted to feeling suicidal about one month prior when her thenb o yf rie n d threw her out of the house. C la im a n t stated that she was diagnosed with Bipolar Disorder in California and w a s currently out of her medication. Her symptoms were depressed mood, frequent c ryin g spells, sleep and appetite disturbance, and mood swings. Claimant stated that she h a d worked at several jobs but was usually fired quickly because she "does not get along w ith the public." (Tr. 213). Claimant's intellectual functioning seemed below average, a n d her insight was questionable. (Tr. 214). Claimant's assets were her willingness to s e e k and obtain help. Her liabilities were her current mental health and limited social s u p p o r t. Her diagnosis was bipolar disorder, mood disorder NOS, post-traumatic stress d is o rd e r, and mild mental retardation. (Tr. 220). The recommendation included

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m e d ica tio n management and individual counseling. Her medications were Risperdol, V istaril, and Trazadone. (Tr. 207). C la im a n t was seen again on July 7, 2005, and she reported that she was feeling b e tte r and "doing okay." (Tr. 204-5). She was still experiencing mood swings and was q u ic k to anger. Anger management was recommended. On July 22, 2005, claimant was v e r y quiet and seemed depressed. (Tr. 204). She reported mood swings and headaches, a n d she said that she had been sleeping a lot. Claimant attended an anger management c la ss on August 9, 2005. (Tr. 203). On August 19, 2005, claimant was feeling much c a lm e r. Her medications were continued. O n October 30, 2005, claimant telephoned CMHC to report that she had been s e e in g Dr. Conception in Abbeville. (Tr. 202). She stated that she had run out of her E f f ex o r and Xanax, which she indicated were very helpful to her. She reported feeling e d g y and irritable. Claimant was told to call Dr. Conception's office or to go to his clinic to explain her current problem, or to go to an emergency room in the event of a crisis. E. Consultative Report by Dr. Alfred Buxton dated November 21-22, 2005. Dr. Buxton, a clinical psychologist, consultatively evaluated claimant at the request of D D S . (Tr. 152). She reported an 8 th grade education with poor grades. She indicated that s h e quit school at age 16 and had no other formal academic or vocational training. She h a d last worked "a few years ago" at a fast food restaurant but was "let go." She stated th a t she had been going to Crowley Mental Health on a monthly basis for approximately

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fiv e months. (Tr. 153). She also stated that she had been seeing a local psychiatrist, Dr. C o n c e p tio n , for her anxiety and panic attacks. Claimant noted that her appetite and sleep w e re good with her medication, but that her energy was poor. Dr. Buxton observed that sh e seemed a bit groggy, and he opined that she seemed to be a bit over-sedated. (Tr. 1 5 4 ). On examination, claimant was alert and responsive, she possessed good verbal s k ills , and her concentration was good. Her reasoning was fair but insight was poor. Recent and remote memories were intact. Her slow rate of performance seemed s e c o n d a ry to her medication effect. Intellect was subaverage, and judgment was good. Her GAF score was 60 at that time and was 55 in the preceding five months. She re p o rte d that she heard "people telling her to do things" and also reported chronic low le v e l general paranoia. Dr. Buxton diagnosed a schizoaffective disorder with a moderate degree of im p airm en t and a personality disorder with mixed features (DSM-IV, 301.90). While Dr. B u x to n found claimant bright enough to understand simple instructions, he opined that s h e would have difficulty responding in a reliable and dependable fashion as an employee s e c o n d ary to the negative impact of the schizoaffective disorder and the characterological d e f ec ts on her functional capabilities. She would likely not respond well to the frustration a n d stress that she would encounter in the job setting and would perform in a fashion that w o u ld lead to her own demise. This was apparently what happened with claimant's

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p re v io u s attempts at employment. While she may be able to establish relationships, she w o u ld have some difficulty maintaining mutually rewarding relationships with cow o rk e rs and supervisors. In closing, Dr. Buxton stated that "[i]f, and when, she should d e m o n s tra te significant improvement in her overall functional status, . . . then an attempt a t gainful competitive employment would be appropriate." F. Psychological Evaluation by Dr. Sandra B. Durdin dated December 21, 2 0 0 5 . Dr. Durdin, a clinical psychologist, consultatively evaluated claimant for a mental h e a lth assessment. (Tr. 158). It was noted that claimant malingered on the testing. She re p o rte d attendance in school through the 8 th grade with all "F's." She said that she lived w ith her sister, never married, and had two children aged 18 and 19 years. She reported th a t she used to go to Crowley Mental Health but that she quit going because "they did n o t help her." (Tr. 159). She said that she hears voices. She indicated that she used to d riv e but does not anymore. D r. Durdin indicated that claimant was rude and irritated because she came to the o f f ice at the wrong time and had to wait. Her cognitive assessment was completely in v a lid because she refused to cooperate, and her entire presentation was one of anger. Her estimated level of intellectual functioning was considered to be borderline at m in im u m . She scored zeros on all subtests. Her ability to understand, remember, and c a rr y out simple instructions was considered adequate.

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G . Psychiatric Review Technique Form dated January 13, 2006. Consultant's n o tes indicate that claimant presented at the district office as lethargic and slow. (Tr. 1 7 5 ). She was wearing Disney character Goofy slippers. Notes further indicate that there w a s insufficient evidence for a finding of disability due to claimant's failure to cooperate a t the consultative examination. H . Physical Residual Functional Capacity Assessment dated January 18, 2 0 0 6 . No exertional, postural, manipulative, visual, or communicative limitations were n o te d . (Tr. 179-181). Claimant should avoid concentrated exposure to fumes, odors, d u s ts , gases, poor ventilation, etc. due to her asthma. (Tr. 182-3). I. Records from Abbeville Community Health Center from October, 2005 to F e b r u a r y , 2007.7 Claimant presented on October 6, 2005, with anxiety and depression. (T r. 189). She was diagnosed with major depression and anxiety disorder and was p re sc rib e d medication, including Xanax. (Tr. 190). In December, 2005, claimant was co m p lian t with medications and reported feeling good and sleeping well. (Tr. 187). In F e b r u a r y, 2006, claimant reported that she stopped taking one of her medications because o f an adverse skin reaction, and so she was not sleeping well. Risperdol and Klonopin w e re prescribed. (Tr. 190). In March, 2006, claimant reported less nervousness and an x iety. She denied feeling depressed and had no side effects from her medication. In M a y, 2006, claimant stated that she ran out of her Risperdol and had "bad nerves" as a

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Portions of these records are illegible.

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re su lt. (Tr. 186). She reported trouble sleeping at times and also reported continued h a l lu c i n a t i o n s . In July of 2006, she was nervous, depressed at times, and reported more auditory h a llu c in a tio n s . (Tr. 195). She was having financial troubles. Her dosages of Risperdol a n d Klonopin were increased. Claimant missed several appointments before returning to th e health center on November 13, 2006. (Tr. 194). Claimant was informed that she w o u ld be discharged from treatment if she missed another appointment. She indicated th a t she had difficulty getting a ride and had no phone. She denied feeling depressed and h a d no hallucinations. She reported frequent headaches when taking Risperdol. C laim an t was not seen again until February 26, 2007. (Tr. 193). She was more a n x io u s and denied any hallucinations or depression. Compliance with medications and f o llo w up was discussed. Claimant agreed with the recommendations, and her m e d ic a tio n s were continued. J . Psychological Evaluation by Dr. F.T. Friedberg dated May 1, 2007. Dr. F ried b erg , a clinical psychologist, evaluated claimant at the request of her attorney. (Tr. 1 9 9 ). Claimant was almost in a vegetative state. Her response times were very slow, and s h e appeared to exhibit thought blocking and mild to moderate mental retardation. He f o u n d claimant to be "extremely fragile." (Tr. 200). Dr. Friedberg also met with c la im a n t's daughter, who stated that her mother does not cook, and also that her children a re often fearful of leaving her alone because she becomes confused easily.

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A review of her medical history was found by Dr. Friedberg to be consistent with a m ajor emotional disorder, and her medications were consistent with that diagnosis.8 Dr. F ried b erg further indicated that her vocational and behavioral history and her work p ro d u c tio n was consistent with a diagnosis of mild mental retardation. (Tr. 200). It was D r. Friedberg's opinion that claimant was "not a candidate for viable vocational e n d e a v o rs , even a simple endeavor of a one or two-step task." K . Records dated May 20, 2007 from Oceans Behavioral Hospital. Claimant w a s admitted to Oceans on May 24, 2007, with complaints of needing "sleep, peace and q u ie t." (Tr. 223). She was admitted on a physician's emergency certificate, which stated th a t she was hearing voices telling her to kill herself. She was angry and uncooperative, a n d her speech was loud. She admitted to auditory hallucinations and paranoia. Upon c o g n itiv e exam, she was able to give the date, month and year. Her social judgment was p o o r, as was her awareness into her need for treatment. She refused to cooperate with the re s t of the cognitive exam. It was noted that, through individual and group therapy sessions, claimant became m o re cooperative and interacted well with others. (Tr. 224). Her energy level improved, a n d she exhibited no sedation. She was no longer psychotic and was able to demonstrate a n ability to effectively cope with stressors that increased signs and symptoms of her d i so r d e r . She denied hallucinations and delusions.
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Claimant was taking Risperdol, an anti-psychotic, Effexor, an anti-depressant, and Trazadone for her sleep d is tu r b a n c e . (Tr. 199).

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C la im a n t's condition improved, and she was discharged on May 29, 2007. Her d ia g n o sis was psychosis NOS with a history of chronic paranoid schizophrenia and a sth m a . (Tr. 225). Her medications were Risperdol 2mg/twice a day, Singular 1 0 m g /tw ic e a day, Klonopin 1mg/twice a day, Vytorin 10-20mg every night, Trazadone 1 5 0 m g every night, and an Albuterol inhaler as needed four times a day. (Tr. 225). Claimant was scheduled for continuous counseling and medication management at New Ibe ria Comprehensive Clinic to continue working on her disorder and to ensure m e d ic a tio n compliance in a low level of care setting. II. T e stim o n ia l Evidence: ALJ hearing A t the hearing on May 8, 2007, claimant was 41 years old. (Tr. 250). She lived w ith her son, age 21, and daughter, age 19, in an apartment. (Tr. 250-1). She had a 8 th g ra d e education and could read and write "a little bit." (Tr. 252). She testified that she c o u ld not make change at a store. She denied ever telling anyone that she managed m o n e y. (Tr. 266). She has never paid her rent; her son takes care of the bills. (Tr. 258). She denied drinking or smoking. (Tr. 256). H e r past work included a french fry cook at a fast food restaurant, a sitter for an e ld e rly woman, and a housekeeper. (Tr. 253). She only worked at those jobs for a few m o n th s each. She had not looked for work lately. (Tr. 254). She testified that she had a d r iv e r 's license and used to drive several years ago, but she was in a bad accident, and so h er sister took away her license. (Tr. 251-2). When she had a car, her son, then 18 years

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o ld, would pay her insurance and other bills. (Tr. 254). R eg ard in g complaints, claimant testified that she cannot work because she hears v o ic e s all the time and also has daily crying spells and anxiety attacks. (Tr. 254-5, 260, 2 6 2 ). She sometimes sees people and shadows. (Tr. 263). She testified that her m e d ic a tio n s help her and allow her to sleep. (Tr. 255, 264). She admitted that she ran out o f her medication one time. (Tr. 255-6). Claimant goes to an Abbeville clinic regularly f o r treatment, and her sister drives her there. (Tr. 257). She uses an inhaler for her a s th m a . (Tr. 262). She has no friends and does not get along with anyone. (Tr. 263). She fusses with her kids. R e g a rd in g activities, claimant testified that she watches television. (Tr. 260). She d o es not go to the grocery, cook, or fold clothes, but she does try to clean the house. (Tr. 2 5 6 -7 ). Her son does the laundry and pays the bills. (Tr. 256, 258). Her sister or c h ild re n do all the grocery shopping, and she never goes with them. (Tr. 257). She te stif ie d that she does not go to church because there are too many people there and they m ig h t try to hurt her. (Tr. 259). Vocational expert ("VE") Lionel Bordelon testified at the hearing. (Tr. 267). He te s tif ie d that claimant's past job of fast food worker was classified as light, semi-skilled. Her past job of house cleaner was classified as medium, semi-skilled. Her past job of c o m p a n io n sitter was classified as light, low-level semi-skilled.

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T h e ALJ gave the following hypothetical: If we had someone of the Claimant's age, education, and work experience, and a s s u m e she had no exertional limitations, but because of emotional problems she c o u ld n 't do complex work, but she could do work which required that she follow o n e to two-step instructions. And also, she needed a work environment with no e x ce ss iv e exposure to pulmonary irritants. Could she do any of her prior jobs? In response, Mr. Bordelon testified that she could not do the companion sitter job d u e to the one to two-step instruction limitation. (Tr. 268). He testified that she could not d o her previous job of housekeeper due to the possibility of exposure to irritants. He te stif ie d that the job of french fry cook at a fast food restaurant might be a possibility, but o n ly if she was not given some other task related to clean up, which would necessarily inv o lve some exposure to irritants. Mr. Bordelon testified that, based on claimant's residu al functional capacity, she could perform other jobs of assembler or hand packer, b o th of which existed in significant numbers in the national economy. (Tr. 269). T h e ALJ asked the VE to assume that claimant had emotional problems to the e x te n t that she could not follow even simple one or two-step instructions. In that in s ta n c e, the VE testified that claimant would not be able to do those jobs or any other jo b s available in the national economy. The ALJ then asked the VE to assume that c la im a n t had bipolar disorder or some other episodic disorder which resulted in increased s ym p to m o lo g y to the point that she might have to miss four or five days of work per m o n th . The VE stated that she would not be able to do any of the jobs on a sustained b a s is .

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C la im a n t's attorney asked the VE to assume a number of different scenarios, and to all of which, the VE responded that claimant would not be able to maintain e m p l o ym e n t . Those scenarios were as follows: person with frequent daily crying spells; p e r s o n with the general demeanor of rocking back and forth and chewing on fingers; p e rs o n who tended to deteriorate under stress; person who was seen to be out of touch w ith reality or respondent to hallucinations; or a person who had conflict with co-workers u p o n contact. (Tr. 270-1). A n a lys is C la im a n t argues that the ALJ erred in assessing her residual functional capacity, re su ltin g in a failure to sustain his burden at step 5, erroneously relying upon the te stim o n y of the vocational expert which was given in response to a defective h yp o th e tic a l question. Because I find that the ALJ decision is not supported by s u b s ta n tia l evidence, I recommend that this case be REVERSED. D id the ALJ properly weigh the evidence? 1 . Appendix 1 Impairments C la im a n t contends that the ALJ erred in concluding that she did not meet or equal L istin g 12.04(C), which concerns Affective Disorders, or Listing 12.08, which deals with P e r so n a lity Disorders. T h e ALJ determined that claimant does not satisfy the "paragraph B" criteria of the a d u lt mental disorders Listings in § 12.00 of the Listings of Impairments. In activities of

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d aily living, the ALJ found that claimant has mild restrictions. She reported to Dr. B u x to n that she helps out with chores and simple meals. Her grooming and appearance are good. In social functioning, ALJ found that claimant has moderate difficulties. Dr. D u rd in reported that claimant was rude. Dr. Buxton noted that her reasoning was fair and h e r judgment good. She was alert and responsive. (Tr. 154). With regard to c o n c e n tra tio n , Dr. Buxton observed claimant to have a slow rate of performance but with g o o d concentration. He opined that she was bright enough to understand and follow s im p l e instructions. A s for episodes of decompensation, claimant was hospitalized on one or possibly tw o occasions - most recently in May of 2007 for five days.9 There is no evidence which s u g g e s ts that claimant has suffered repeated episodes of decompensation or otherwise s a tis f ie d § 12.00's listing requirements. Thus, the undersigned concludes that substantial e v id e n c e supports ALJ's decision that claimant does not meet the Listings, because her im p a irm e n ts did not cause at least two "marked" limitations or one "marked" limitation a n d "repeated" episodes of decompensation as required by "paragraph B." 2 . Substantial Evidence C laim an t maintains that substantial evidence does not support the ALJ's c o n c lu s io n that she can perform sustained gainful employment. Claimant contends, a m o n g other things, that the ALJ did not give proper weight to the opinion of Dr. Buxton,

Claimant may have been hospitalized at CMHC in July, 2005; the records are unclear as to whether she w a s an in-patient.

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th e Social Security Administration's own consultative psychologist. T h e ALJ is responsible for assessing the medical evidence and determining the c la im a n t's residual functional capacity. Perez v. Heckler, 777 F.2d 298, 302 (5 th Cir. 1 9 8 5 ). The ultimate issue of disability is reserved to the Commissioner. The ALJ is

e n title d to determine the credibility of the examining physicians and medical experts and to weigh their opinions accordingly. Greenspan v. Shalala, 38 F.3d 232, 237 (5 th Cir. 1 9 9 4 ). "The ALJ is free to reject the opinion of any physician when the evidence s u p p o rts a contrary conclusion." Martinez v. Chater, 64 F.3d 172, 175-176 (5th Cir. 1 9 9 5 ), quoting, Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990). A claimant's s u b je c tiv e complaints must be corroborated at least in part by objective medical te s tim o n y. Houston v. Sullivan, 895 F.2d 1012, 1016 (5th Cir. 1989). C la im a n t contends that the combined effects of depression, bipolar disorder, and s id e -e f f e c ts of her medications render her unable to hold a job in a realistic work setting. This conclusion is supported by Dr. Friedberg, who found that claimant would have p rob lem s with even a simple endeavor of a one or two-step task. (Tr. 200). Likewise, Dr. B u x to n concluded that claimant most likely would not be able to maintain a job due to the c o m b in e d negative impact of her mental health issues and medications. (Tr. 154). While th e ALJ concluded that claimant was not credible because she was very dramatic at the h e a rin g , and also because there were some inconsistences in her testimony,1 0 he failed to
10

At the hearing, claimant denied ever having told anyone that she could manage money. (Tr. 266). H o w e v e r , Dr. Buxton reported that she had told him that she shopped and handled money on occasion. (Tr. 153).

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a d d re ss the fact that the reports of both Dr. Friedberg and Dr. Buxton support her a lle g a tio n s of disabling mental impairments, as do the records from several of the mental h e a lth clinics at which claimant has been treated. T h e ALJ relied upon the opinion of Dr. Durdin, a consultative psychologist, that c laim a n t was a malingerer, even though Dr. Durdin examined claimant in an arguably h o s tile environment and was not successful in administering a full range of cognitive te stin g .1 1 The ALJ failed to explain his reasons for discounting the final conclusion of D r. Buxton, who examined claimant at the request of Disability Determination Services. The ALJ has a duty to consider the entire medical record and cannot "pick and choose" o n ly the evidence which supports his position. See Loza v. Apfel, 219 F.3d 378 (5 th Cir. 2 0 0 0 ); Switzer v. Heckler, 742 F.2d 382, 385-86 (7 th Cir. 1984). W h i le he found claimant bright enough to understand simple instructions, Dr. B u x to n opined that:
". . .she would have difficulty responding in a reliable and dependable fashion as an employee secondary to the negative impact of the schizoaffective disorder and the characterological defects on her functional capabilities. She would likely not respond well to the frustration and stress that she would encounter in the job setting and would perform in a fashion that would lead to her own demise. This was apparently what happened with claimant's previous attempts at employment. While she may be able to establish relationships, she would have some difficulty maintaining mutually rewarding relationships with co-workers and supervisors." (Tr. 154).

The ALJ cited some of Dr. Buxton's findings while ignoring his ultimate

Dr. Durdin stated that claimant had missed her previous appointment and came at the wrong time for the c o n s u lta t iv e exam. Claimant offered evidence which showed that she had called the Social Security office to change h e r initial appointment because of Hurricane Rita. These misunderstandings apparently created a contentious a t m o s p h e r e during the actual exam, and claimant was admittedly uncooperative. See Rec. Doc. 9, p. 6.

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c o n c lu s io n that "[i]f, and when, [claimant] should demonstrate significant improvement in her overall functional status, . . . then an attempt at gainful competitive employment w o u ld be appropriate." Implicit in this observation is the physician's opinion that c la im a n t is not fit for work. Dr. Friedberg also found claimant to be "very fragile" and "not a candidate for e v e n a simple endeavor of one or two-step task[s]." (Tr. 200). At CMHC, claimant was d ia g n o se d with bipolar disorder, post-traumatic stress disorder and mild mental re ta rd a tio n . At the Abbeville health center, she was diagnosed with major depression and a n x ie ty disorder. At Oceans, she was diagnosed with psychosis NOS with a history of p a ra n o id schizophrenia. Thus, Dr. Durdin's opinion is inconsistent with the majority of th e medical evidence in the record, and, as such, is not entitled to significant weight. The o p inion s of Dr. Buxton, who was retained by the Social Security Administration, and Dr. F r ie d b e rg , simply do not indicate that claimant is capable of working on a sustained b a s is at this time. The overwhelming evidence of record shows that claimant's impairments are c h ro n ic and severe. Claimant has apparently been suffering from these impairments for s e v e ra l years. There are no reports from any examining physician which contradict or d is p u te the opinions of Drs. Buxton and Friedberg that claimant's mental problems p re c lu d e her from maintaining employment due to unreliability secondary to her mental im p a irm e n ts. The social worker at CMHC also opined that claimant would be unable to

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m a in ta in a job with her mental problems. (Tr. 151). A finding that a claimant is able to engage in substantial gainful activity requires m o re than a simple determination that claimant can find employment and that she can p h ysic a lly perform certain jobs; it also requires a determination that the claimant can hold w h a te v e r job she finds for a significant period of time. Watson v. Barnhart, 288 F.3d 2 1 2 , 217 (5 th Cir. 2002) (citing Singletary v. Bowen, 798 F.2d 818, 822 (5th Cir. 1986)). In order to be capable of engaging in substantial gainful activity, a person must have a re a lis tic chance of both obtaining as well as keeping a job in a realistic work setting. Watson, 288 F.3d at 217. In Wingo v. Bowen,1 2 the Court held that: a determination that a person is capable of engaging in substantial gainful activity d e p e n d s on a finding not only that the individual has some chance of being hired, b u t also, that, taking account of the individual's exertional and non-exertional lim ita tio n s , the individual has a reasonable chance, "once hired, of keeping the jo b ." Id. at 831. We noted that "[a] claimant capable of performing sedentary or lig h t work under the guidelines must have the ability to perform the required p h ys ic a l acts day in and day out in the sometimes competitive and stressful c o n d i tio n s in which all people work in the real world." Id. (citing Allred v. H e c kle r, 729 F.2d 529, 533 (8th Cir.1984)).

Dr. Buxton opined that claimant would likely have insurmountable difficulties in d e a lin g with occupational stressors. Dr. Friedberg's opinion of claimant was that she is " v e ry fragile." Further, the vocational expert testified that employers would not tolerate a n employee's absences from work. (Tr. 270). Considering the foregoing, the u n d e rs ig n e d finds that the ALJ's determination that claimant could perform work on a
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Wingo, 852 F.2d 827 (5th Cir. 1988).

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s u s ta in e d basis is not supported by substantial evidence. C o n c lu s io n F o r the foregoing reasons, it is RECOMMENDED that the Commissioner's d e c is io n be REVERSED and that benefits be awarded consistent with an onset date of M a y 24, 2005.13 Under the provisions of 28 U.S.C. Section 636(b)(1)(c) and Rule 72(b), parties ag g riev ed by this recommendation have ten (10) business days from receipt of this report a n d recommendation to file specific, written objections with the Clerk of Court. A party m a y respond to another party's objections within ten (10) days after receipt of a copy of a n y objections or responses to the district judge at the time of filing. F a ilu r e to file written objections to the proposed factual findings and/or the p r o p o s e d legal conclusions reflected in this Report and Recommendation within ten (1 0 ) days following the date of receipt, or within the time frame authorized by F e d .R .C iv .P . 6(b), shall bar an aggrieved party from attacking either the factual fin d in g s or the legal conclusions accepted by the District Court, except upon g r o u n d s of plain error. See Douglass v. United Services Automobile Association, 79

A judgment entered adopting this Report and Recommendation constitutes a "final judgment" that t r i g g e r s the filing period for an EAJA fee application. Shalala v. Schaeffer, 509 U.S. 292, 113 S.Ct. 2625, 2631 ( 1 9 9 3 ) ; Freeman v. Shalala, 2 F.3d 552 (5 th Cir. 1993).

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F.3d 1415 (5 th Cir. 1996). S ig n e d at Lafayette, Louisiana, on September 4, 2009.