Arnau-Colon

Filing 10

OPINION AND ORDER re 1 Complaint, filed by Magaly Arnau-Colon. We VACATE the Commissioner of Social Security's determination. We GRANT Claimant's petition and REMAND the case to the Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g), for findings not inconsistent with this opinion. Signed by Chief Judge Jose A Fuste on 12/22/09.(mrj)

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U N IT E D STATES DISTRICT COURT D IS T R IC T OF PUERTO RICO M A G A L Y ARNAU-COLÓN, Claimant, v. M IC H A E L S. ASTRUE, R e s p o n d e n t.

C i v il No. 08-2040 (JAF)

O P I N IO N AND ORDER C la im an t, Magaly Arnau-Colón, petitions this court under 42 U.S.C. § 405(g) to review th e decision of Respondent, Commissioner of Social Security Michael S. Astrue ("C o m m issio n er" ), denying Claimant's application for disability benefits. (Docket No. 1.) C o m m is s io n e r opposes the petition (Docket No. 8), and Claimant replies (Docket No. 9). I. F a c tu a l and Procedural History W e derive the following facts from the parties' filings (Docket Nos. 1; 6; 8; 9) and the rec o rd in this case ("R.") (Docket No. 5). Claimant was born on July 4, 1966. (R. at 60, 303.) S h e completed twelve-grade equivalency and a two-year course in designer sewing. (R. at 304.) S h e worked from 1989 to 1995 as a tacking-machine operator at a book-bag factory and from 1 9 9 8 to June 2004 as a sewing-machine operator at a uniform factory. (R. at 90, 305, 313.) O n June 10, 2004, Claimant stopped working due to a mental-health crisis. (R. at 307-08.)

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C la i m a n t received disability insurance benefits beginning June 10, 2004; these benefits term inate on December 31, 2009. (R. at 46.) O n September 2, 2005, Commissioner determined that Claimant's impairment did not prev e n t her from working. (R. at 34-39.) Accordingly, Commissioner determined that Claimant w a s not entitled to disability benefits under the Social Security Act. (Id.) On October 21, 2005, C la im a n t requested reconsideration of the termination (R. at 33), which Commissioner denied o n January 24, 2006 (R. at 28-32). O n February 24, 2006, Claimant requested an administrative hearing before an a d m in is tra tiv e law judge ("ALJ") (R. at 27), which took place before ALJ Theodore W. Grippo o n July 27, 2007 (R. at 21-24). Claimant attended the hearing with counsel and testified reg ard in g her alleged disability. (R. at 300-12.) A vocational expert, Dr. Ariel CintrónA n d o m a r , also testified at Claimant's hearing. (See R. at 312-19.) The ALJ and Claimant's c o u n s e l posed competing hypothetical situations to Dr. Cintrón, as follows. The ALJ h yp o th e s iz e d an "individual of the same age, education and past relevant work experience" as C la im a n t, with "moderate" limitations in "daily activities, social functioning and concentration, p e rs is te n c e and steps." (R. at 315.) Dr. Cintrón responded that such an individual would be u n a b le to perform Claimant's past work but would be able to perform a different function in the g arm en t industry, as sorter, a job that existed in substantial numbers in Puerto Rico. (R. at 3151 8 .) Claimant's counsel, in turn, hypothesized an individual like Claimant except with more

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p a rtic u la riz e d , severe limitations. (See R. at 319.) Dr. Cintrón responded that such an ind ivid u al would be unable to perform any job in the national economy. (Id.) T h e ALJ also had before him a record showing that Claimant suffers from chronic d e p re ss io n , for which she received treatment from psychiatrist Dr. Magaly Johnson-Polanco b e g in n in g March 20, 2002, and from clinical psychologist Dr. Hilda Nieves beginning Ja n u a ry 22, 2003. (R. at 15.) On June 10, 2004, Claimant had an episode at work that p rec ipitated her hospitalization for severe depression and suicidal intentions. (See R. at 15, 3081 1 .) From that date, she discontinued work, continued treatment with her psychiatrist and p sych o lo g ist, and took medications, the effect of which would lessen over time. (R. at 308-12.) S h e had another episode, this time at home, that precipitated another hospitalization, on M a rc h 27, 2005, for severe depression and suicidal intentions. (R. at 15, 311.) As of the h ea rin g , Claimant was continuing with treatment and medication; at that time, she met with her p sych iatrist bimonthly, reduced from monthly. (See R. at 308.) O n September 20, 2007, the ALJ rendered a decision finding that Claimant had not been d is a b le d since June 10, 2004. (R. at 8-18.) Proceeding with his analysis under 20 C.F.R. § 404.1520(a), the ALJ found that Claimant suffers from an affective disorder, a medicallyd e ter m in a b le impairment, but that said impairment is not severe because it has not, or is not e x p e cte d to, significantly limit her ability to perform basic work-related activities for twelve c o n se c u tiv e months. (R. at 13.) To reach his conclusion, the ALJ discussed the medical e v id e n c e submitted from Claimant's two treating physicians, Drs. Johnson and Nieves. He

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d e ter m in e d that Dr. Johnson's submission, her report and progress notes, should share equal c o n tro llin g weight with Dr. Nieves' progress notes. In so deciding, the ALJ determined that Dr. Johnson's "Medical Source Statement of A b ility To Do Work-Related Activities (Mental)" ("Assessment") (R. at 115-16) and D r. Nieves' report (R. at 187-88) would receive no weight, given their inconsistency with these d o c to rs ' other submissions and with the rest of the record evidence. (R. at 15-16.) As to D r . Johnson's Assessment, the ALJ found that she had provided no clinical or medical findings to support her evaluation; that her progress notes indicated Claimant's "steady improvement"; a n d that her report's observations regarding, for example, memory and concentration u n d e rm in e s her severity ratings on the Assessment. (R. at 16.) As to Dr. Nieves' report, which d iagn o sed Claimant with "severe" depression, the ALJ found it "completely at odds" with her p rog ress notes, which, in the header, diagnosed Claimant with "mild" depression. (R. at 15.) H a v in g afforded these two items zero weight, the ALJ concluded that he must follow the o n ly severity rating from a treating physician on record, Dr. Nieves' progress notes diagnosing " m ild " depression. He explained that such a rating seemed consistent with the rest of the re c o rd , and in particular the facts that (1) Claimant had worked with the condition for over two ye a rs before the alleged onset; (2) the severe period, which he defined as, at most, the length o f time including and between the two hospitalizations, lasted under twelve months; and (3) the D isab ility Determination physicians had found Claimant's condition nonsevere. (R. at 17-18.)

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O n October 31, 2007, Claimant sought review of the ALJ's decision from the Appeals C o u n c il (R. at 297-99), which denied review on August 5, 2008 (R. at 3-7). On September 13, 2 0 0 8 , Claimant filed the present petition in this court seeking review of the ALJ's decision. ( D o c k e t No. 1.) Commissioner filed a memorandum of law on February 20, 2009 (Docket N o . 8), and Claimant filed a memorandum of law on March 10, 2009 (Docket No. 9). II. S t a n d a r d of Review A n individual is disabled under the Social Security Act ("the Act") if she is unable to do h er prior work or, "considering [her] age, education, and work experience, engage in any other k in d of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d). T h e Act provides that "[t]he findings of the Commissioner . . . as to any fact, if supported by s u b s ta n tia l evidence, shall be conclusive." § 405(g). Substantial evidence exists "if a

re a so n a b le mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [the] conclusion." Irlanda-Ortíz v. Sec'y of Health & Human Servs., 955 F.2d 765, 7 6 9 (1st Cir. 1991) (internal quotation marks omitted) (quoting Rodríguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)). W e must uphold Commissioner's decision if we determine that substantial evidence s u p p o rts the ALJ's findings, even if we would have reached a different conclusion had we re v ie w e d the evidence de novo. Lizotte v. Sec'y of Health & Human Servs., 654 F.2d 127, 128 (1 s t Cir. 1981). In reviewing a denial of benefits, the ALJ must consider all evidence in the

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re c o rd . 20 C.F.R. § 404.1520(a)(3). Credibility and "[c]onflicts in the evidence are . . . for the [ A L J ] - rather than the courts - to resolve." Evangelista v. Sec'y of Health & Human Servs., 8 2 6 F.2d 136, 141 (1st Cir. 1987). We reverse the ALJ only if we find that he derived his d e c is io n "by ignoring evidence, misapplying the law, or judging matters entrusted to experts." N g u ye n v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). III. A n a l y s is C la im a n t argues that the ALJ erred in assessing the severity of Claimant's depression, e sp e c ia lly insofar as he selectively cited the record to support that assessment and failed to d o c u m e n t the application of the Psychiatric Review Technique in his decision. (Docket No. 9 at 12-17.) S e c tio n 404.1520a describes a particular technique the ALJ must apply to assess the sev erity of a claimed mental impairment. See 20 C.F.R. § 404.1520a(a) (explaining need for sp ec ial technique). The ALJ first must determine whether the claimant has a medicallyd e te rm in a b le impairment and, if so, must both "specify the symptoms, signs, and laboratory f in d in g s that substantiate the presence of the impairment" and "rate the degree of functional lim itatio n resulting from the impairment." § 404.1520a(b). The ALJ must so rate as to four b ro a d functional areas: Activities of daily living; social functioning; concentration, persistence, o r pace; and episodes of decompensation. § 404.1520a(c)(3). The ratings for the first three a re a s are based on a five-point scale (none, mild, moderate, marked, and extreme); the rating

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f o r the fourth area is based on a four-point scale (none, one or two, three, four or more). § 404.1520a(c)(4). If the ALJ rates the limitation in the first three functional areas as "none" o r "mild" and in the fourth area as "none," the ALJ will generally conclude that the impairment is not severe. § 404.1520a(d)(1). Otherwise, the ALJ must continue the assessment by d eterm in in g whether the impairment meets or is equivalent in severity to a listed mental disorder a n d , if not, assessing the claimant's residual functional capacity. § 404.1520a(d)(2), (3). T h e ALJ's "written decision must incorporate the pertinent findings and conclusions b a se d on the technique." § 404.1520a(e)(2). In particular, the decision must show the " sig n if ica n t history, including examination and laboratory findings, and the functional li m it a ti o n s that were considered in reaching a conclusion about the severity of the functional a re a s" and must "include a specific finding as to the degree of limitation in each of the function a re a s ." Id. T h e ALJ's decision in the instant case does not explicitly describe his decision in terms o f the technique described above. (R. at 8-18.) It does, however, find that Claimant suffers f ro m a medically-determinable mental impairment, an affective disorder, and does not include a specific finding as to the degree of limitation in each of the functional areas. (Id.) The ALJ f o u n d "no limitation" in all four categories, citing Claimant's report that she "can take care of h e r personal needs" to support the finding in the first category; Claimant's report that she "goes s h o p p in g with her mother" to support the second; and nothing to support the third and fourth. (R . at 18.) Given his ratings, the ALJ found Claimant's condition nonsevere and did not

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c o n tin u e the assessment under § 404.1520a(d)(2) and (3). (See R. at 8-18.) On review, we must d e te r m in e whether substantial evidence supports the ALJ's ratings and thereby justifies his tru n c a tio n of the assessment.1 See Irlanda-Ortíz, 955 F.2d at 769. U p o n review of the record, we find the ALJ's rating of all four categories unsupported b y substantial evidence. As to the first category, daily living activities, the ALJ found "no lim itatio n " in direct contradiction to reports by Dr. Johnson (R. at 110-14); Dr. Nieves (R. at 1 8 7 -8 8 , 250-57); and the psychiatrist who, under § 404.1520a(e)(1), completed the Psychiatric R ev iew Technique Form ("PRTF") during the initial review of Claimant's application for b e n e f its (R. at 204-17). Dr. Johnson, in a report given full weight by the ALJ,2 reported that C laim an t was "unable to do household tasks" and could not even get up. (R. at 113-14.) D r. Nieves, in a report not even mentioned by the ALJ (see R. at 8-18),3 reported that Claimant

The ALJ also states as a general matter that the severity of Claimant's mental impairment is "mild." (R. at 17.) Assuming, however, that the ALJ followed the technique required by § 404.1520a, he had no cause to state a general opinion as to Claimant's condition, and we focus our review instead on his assessment of her degree of limitation in the four functional areas. The ALJ discussed in his opinion Dr. Johnson's Assessment in which Dr. Johnson rated Claimant's limitation in various work-related categories as "marked." See supra Part I. He afforded the statement no weight, however, finding it inconsistent with Dr. Johnson's progress reports. See id. In so doing, he erred because he substituted his longitudinal view of Claimant's condition for that of her treating physician. See, e.g., 20 C.F.R. § 404.1527(d)(2); Black & Decker Disability Plan v. Nord, 538 U.S. 822, 829 (2003) (describing "treating physician rule"); Leahy v. Raytheon Co., 315 F.3d 11, 20 (1st Cir. 2002) (same). Failure to consider the report of a treating physician itself constitutes grounds for remand. See Nguyen, 172 F.3d at 35 ("The ALJ [is] not at liberty to ignore medical evidence or substitute his own views for uncontroverted medical opinion."). The ALJ discussed a different report filed by Dr. Nieves, dated January 16, 2006, in which Dr. Nieves wrote that Claimant "maintains the same diagnosis, Recurred Sever[e] Major Depression with Psychotic Features." See supra Part I. He afforded this report no weight, see id., again erroneously substituting his longitudinal view of Claimant's condition
3 2

1

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" re m a in s sleeping and isolated in her room all the time . . . [and] cannot engage in any activity." ( R . at 255.) Even the nonexamining physician who completed the PRTF marked Claimant's f u n c tio n a l limitation in the daily living category as "moderate." (R. at 214.) The ALJ's finding o f "no limitation" in this category is simply counter to the evidence in the record. T h e ALJ's finding as to the second category, social functioning, is similarly unfounded. D r. Johnson reported, when asked about Claimant's social functioning, that Claimant neither " in i tia te [ s ] social contacts" nor "participate[s] in group activities." (R. at 113.) Dr. Nieves re p o rte d that Claimant does not "interact interpersonally . . . [and] does not communicate with a n yb o d y" except her mother, who "covers all [Claimant's] needs." (R. at 255.) Here again, the P R T F marked Claimant's functional limitation in this category as "moderate." (R. at 214.) A s to the third category, concentration, persistence, or pace, the ALJ cites no evidence f o r his determination. (See R. at 18.) This category "refers to the ability to sustain focused a tte n tio n and concentration sufficiently long to permit the timely and appropriate completion o f tasks commonly found in work settings." 20 C.F.R. pt. 404, subpt. P, app. 1, pt. A, 1 2 .0 0 C ( 3 ). The ALJ was to consider, inter alia, mental status examinations such as tasks re q u irin g Claimant to "subtract serial sevens or serial threes from 100" and memory tasks that " m u s t be completed within established time limits." Id. The ALJ is to take "great care" in

for that of her treating physician, see supra note 2.

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m a k in g this assessment, however, recognizing that these examinations may be "less demanding, h ig h ly structured, or more supportive" than the normal work environment. Id. W h ile the record contains results from such mental status examinations administered by C la im a n t's treating and examining physicians (see, e.g., R. at 112, 221, 257), the ALJ failed to a d d re ss them in his decision (see R. at 8-18). He likewise ignored Dr. Johnson's evaluation that C la im a n t had "fair attention" but "poor concentration" (R. at 113) and Dr. Nieves' evaluation th a t Claimant suffered from a "big loss of concentration"; that her "attention levels have been to ta lly affected due to her recurrent anxiety and depression"; and that she "cannot maintain m e n t a l focus" (R. at 255-56). And again the ALJ disregarded the PRTF finding that Claimant's f u n c ti o n a l limitation in this category is "moderate" (R. at 214), along with that psychiatrist's n o te that Claimant shows "diminished attention, concentration [and] memory" (R. at 202). A s to the final category, episodes of decompensation, the ALJ failed to cite any support f o r his determination. (See R. at 18.) The category refers to "exacerbations or temporary in c re a s e s in symptoms or signs accompanied by a loss of adaptive functioning." 20 C.F.R. pt. 4 0 4 , subpt. P, app. 1, pt. A, 12.00C(4). The ALJ could infer episodes of decompensation from "m ed ic al records showing significant alteration in medication; or documentation of the need for a more structured psychological support system . . . ; or other relevant information in the record a b o u t the existence, severity, and duration of the episode." Id. T h e record shows that Claimant was hospitalized for her mental impairment twice during a one-year period (see R. at 15); the ALJ references these episodes (id.), but in the context of

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n o tin g that, despite their severity, their briefness provides evidence for the overall mildness of C laim a n t's condition (R. at 17). The ALJ also notes, without citing evidence, that "the claimant m a y have experienced a brief episode of decompensation" but does not explain how this fa ctore d into his conclusion that she had "no limitation" in this fourth category. (R. at 18.) W e do not purport to determine what rating should apply to this category; instead we m ere ly note that there is relevant evidence on the record that ALJ was required both to consider d u rin g his determination and to reference in his written decision. For example, Dr. Johnson r e p o r te d in her progress notes dated October 26, 2004, that Claimant was "having difficulties w ith family" and "[had] been feeling more depressed than usual lately"; at that appointment, Dr. Jo h n so n increased Claimant's dosage of Tranxene, an antianxiety medication. (See R. at 132.) S im ila rly, Dr. Johnson noted on January 16, 2006, during another appointment accompanied by a n increase in medication, that Claimant "[arrived] early to appointment since apparently has b ee n feeling increasingly depressed lately." (See R. at 138-39.) Dr. Nieves reported in her p ro g re s s notes on November 12, 2004, that Claimant "is not doing very well" and on March 16, 2 0 0 5 , that Claimant "continues doing very poorly." (R. at 171, 176.) The length and severity o f these apparent exacerbations in Claimant's condition are relevant to the fourth category, and th e ALJ was required to consider them in his analysis. His disregard of relevant medical e v id e n c e, here and throughout his determination, constitutes a direct violation of Nguyen. See s u p ra notes 2-3.

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F o r the reasons stated above, we find that the ALJ's disability determination lacks basis in substantial evidence. See 42 U.S.C. § 405(g). Where an ALJ's decision is undermined by in f irm itie s in evidentiary support, the usual remedy is to remand for further consideration of re lev a n t medical records. See Seavey v. Barnhart, 276 F.3d 1, 12-13 (1st Cir. 2001) (noting that tw o avenues for remand exist under the fourth and sixth sentences of 42 U.S.C. § 405(g)). III. C o n c lu s io n In view of the foregoing, we hereby VACATE Commissioner's determination. We G R A N T Claimant's petition (Docket No. 1) and REMAND the case to Commissioner, p u rs u a n t to sentence four of 42 U.S.C. § 405(g), for findings not inconsistent with this opinion. I T IS SO ORDERED. S a n Juan, Puerto Rico, this 22 n d day of December, 2009. s /J o s é Antonio Fusté JOSE ANTONIO FUSTE Chief U.S. District Judge