Melugin v. Astrue

Filing 21

ORDER REJECTING REPORT AND RECOMMENDATIONS for 18 Report and Recommendations and this action is REMANDED to the ALJ for further consideration and analysis in accordance with this opinion. The Clerk is instructed to issue a final judgment in accordance with this Order. Signed by Judge Xavier Rodriguez.(ga)

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In the United States District Court for the Western District of Texas L Y N N MELUGIN v. M I C H A E L J. ASTRUE SA-09-CV-120-XR ORDER O n this day came on to be considered the Report and Recommendation of t h e United States Magistrate Judge (docket no. 18) and Plaintiff's Objections t h e r e t o (docket no. 20). After careful consideration, the Court will not accept t h e recommendation and remands this case to the Commissioner of the Social S e c u rit y Administration. B a c k g ro u n d P l a in t iff applied for SSI on December 13, 2005, alleging that he was d is a b le d because of depression and anxiety.1 An ALJ issued a decision on April 8 , 2008 concluding that Plaintiff was not disabled. Plaintiff filed this suit after t h e Appeals Council declined to review his case. S t a n d a r d of Review T h e Court reviews de novo those portions of the Report and Plaintiff also alleged that he was disabled because of a variety of physical ailments. Plaintiff does not contest the ALJ's consideration of his physical impairments. 1 R e c o m m e n d a t io n to which objection is made. See 28 U.S.C. 636(b)(1). Such a r e v ie w means that the Court will examine the entire record and will make an in d e p e n d e n t assessment of the law. However, in examining the Commissioner's d e c is io n denying disability insurance benefits, the Court is limited to a d e t e r m in a t io n of whether substantial evidence supports the decision and w h e t h e r the Commissioner applied the proper legal standards in evaluating the e v id e n c e . Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995). "Substantial evidence is more then a scintilla, less then a preponderance, a n d is such relevant evidence as a reasonable mind might accept as adequate to s u p p o r t a conclusion." Villa v. Sullivan, 895 F.2d 1019, 1021-1022 (5th Cir. 1 9 9 0 ) . When substantial evidence supports the Commissioner's findings, they a r e conclusive and must be affirmed. Martinez, 64 F.3d at 173. Four elements a r e weighed by the Court in determining whether the Commissioner's decision is based on substantial evidence: (1) objective medical facts; (2) diagnoses and o p i n i o n s of treating and examining physicians; (3) the claimant's subjective e v id e n c e of pain and disability; and (4) the claimant's age, education, and work e x p e r ie n c e . Id. at 174. While a de novo review may result in the Court reaching a different ultimate conclusion, conflicts in the evidence are to be resolved by the C o m m is s io n e r . Id. P l a in t i f f 's Objections P l a in t iff complains that the ALJ erred in applying the appropriate legal s ta n d a r d by excluding portions of his medical history in violation of 20 C.F.R. 2 4 0 4 .1 5 2 0 a (e )(2 ).2 Plaintiff also complains that the ALJ failed to accept a treating p h y s ic ia n 's opinion over that of the staff reviewing doctor's assessment. A n a ly s is P la in t if f complains that the ALJ "cherry picked 3 " from the Plaintiff's m e d i c a l history and omitted that in 2005 Plaintiff's Global Assessment of F u n c t io n in g or GAF 4 scores ranged from 35 to 45 (indicating serious symptoms o f suicidal ideation and serious impairment in social, occupational or school fu n c tio n i n g ) . An independent medical examiner (Lewis H. Richmond, M.D.) g a v e the Plaintiff a GAF of 45-50 on April 20, 2006. Dr. Richmond also opined t h a t Plaintiff's "persistence and pace are impaired by the claimant's emotional a n d physical disorders." 5 Plaintiff was diagnosed on Axis I as suffering from s c h iz o a ffe c tiv e disorder and panic disorder with agoraphobia. On Axis IV, Dr. "The decision must show the significant history, including examination and laboratory findings, and the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s). The decision must include a specific finding as to the degree of limitation in each of the functional areas described in paragraph(c) of this section." As indicated below, although this Court agrees with Plaintiff that a remand is proper in this case, Plaintiff's counsel is cautioned that in her zealous advocacy she makes borderline disrespectful comments about the ALJ and Magistrate Judge in her briefing. Disrespectful comments should be avoided in the future. GAF is a standardized measure of psychological, social, and occupational functioning used in assessing a patient's mental health. See Boyd v. Apfel, 239 F.3d 698, 700 n. 2 (5th Cir. 2001). The GAF scale ranges from 100, denoting superior functioning, to 1, indicating that the patient is in persistent danger of severely hurting herself or others, has a persistent inability to maintain minimal personal hygiene, or has engaged in a serious suicidal act with a clear expectation of death. A GAF Score in the range of 41 to 50 represents "[s]erious symptoms" (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Brown v. Barnhart, 285 F. Supp.2d 919, 924 n. 7 (S.D. Tex. 2003), citing American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders at 32 (4th ed.1994). 5 4 3 2 Tr. 173. 3 R ic h m o n d opined that Plaintiff's disabilities were severe to extreme. His p r o g n o s i s was "guarded" because of the "chronicity, severity and current quality o f symptoms and appears to depend on outcome to ongoing treatment. However, it appears that his condition may remain chronic."6 I n Plaintiff's mental residual functional capacity assessment performed by C h a r le s McDonald, Ph.D. on May 15, 2006, it was noted that Plaintiff had " m a rk e d ly limited" ability to understand and remember detailed instructions a n d a "markedly limited" ability to carry out detailed instructions. It was noted t h a t with respect to maintaining attention and concentration for extended p e r io d s , getting along with co-workers, and completing a normal workday, P la in tiff was moderately limited.7 T h e above notwithstanding, the ALJ concluded that "the objective e v id e n c e , the claimant's longitudinal treatment history, the balance of medical s o u r c e opinion, and the claimant's daily activities do not support a conclusion t h a t he is unable to sustain work...." 8 The ALJ found that the claimant's p s y ch ia tr ic symptoms were amenable to control with medication therapy p r o v id e d the claimant complies with treatment and abstains from substance Tr. 174. A psychological report dated February 5, 2008 also opines that Plaintiff suffers from major depressive disorders with psychotic features and a diminished ability to think or concentrate. These symptoms are causing a marked impairment in his overall functioning. The medical professionals opine that Plaintiff "will likely need support throughout much of his life." Tr. 402. 7 6 Tr. 190-191. Tr. 12. 8 4 a b u s e ."9 With regard to Plaintiff's condition in December 2005, the ALJ c o n c lu d e d that once Plaintiff was placed on "proper medications for his d ia g n o s e s , his symptoms quickly improved." 1 0 The ALJ attributed Plaintiff's G A F score of 55 to Plaintiff's medication regimen.1 1 The ALJ acknowledged that P la in t iff' s GAF score dropped in April 2006 when Dr. Richmond examined P la in tiff. The ALJ, however, gave this score little weight "as it was inconsistent w it h the findings and opinions contained in Dr. Richmond's examination report, t h e findings and opinions contained in the claimant's CHCS treatment records, a n d the claimant's testimony regarding his daily activities, all of which suggest h e experiences, overall, no more than moderate symptoms and limitations due t o any mental impairment." 1 2 However, the ALJ failed to note that a February 1 5 , 2007 CHCS mental health diagnosis form indicated Plaintiff's GAF score was 4 5 (serious symptoms).1 3 Although Mark McGrath, M.D. opined that Plaintiff w a s permanently disabled because of his depression 1 4 , the ALJ incorrectly noted t h a t "no treating physician has specifically opined that the claimant is disabled fr o m all work activity...."15 9 Id. Id. Id. Id. Tr. 345. Tr. 404. Tr. 14. 10 11 12 13 14 15 5 I n reviewing the propriety of a decision that a claimant is not disabled, the c o u r t 's function is to ascertain whether the record as a whole contains s u b s ta n t ia l evidence to support the Commissioner's final decision. As stated a b o v e , the court weighs four elements to determine whether there is substantial e v id e n c e of disability: (1) objective medical facts; (2) diagnoses and opinions of t r e a tin g and examining physicians; (3) subjective evidence of pain and disability; a n d (4) the claimant's age, education, and work history. Martinez, 64 F.3d at 1 7 4 . The ALJ has a duty to fully and fairly develop the facts relating to a claim fo r disability benefits. Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995). If the A L J does not satisfy this duty, the resulting decision is not substantially j u s t i fie d . Id. However, procedural perfection is not required. The court will r e v e r s e an administrative ruling only if the claimant shows that his substantive r ig h ts were prejudiced. Smith v. Chater, 962 F. Supp. 980, 984 (N.D. Tex. 1997). P la in tiff contends that the ALJ failed to apply the special psychiatric r e v ie w technique set forth in 20 C.F.R. 404.1520a in evaluating the severity of h is various psychiatric ailments. Under this regulation, the ALJ must first e v a lu a te symptoms, signs, and laboratory findings to determine whether the c la im a n t has a medically determinable mental impairment. Id. 404.1520a(b) (1 ). If such an impairment exists, the ALJ must rate the degree of functional lim it a t io n resulting from the impairment in four categories deemed essential to w o r k : (1) activities of daily living; (2) social functioning; (3) concentration, p e r s is te n c e , and pace; and (4) episodes of decompensation. Id. 404.1520a(c)(3). 6 A f t e r rating the functional limitation resulting from the mental impairment, the A L J determines whether the impairment is "severe" or "not severe" given the d e g r e e of functional loss found in the four enumerated categories. Id. at 4 0 4 . 1 5 2 0 a ( d ) (1 ) . If the impairment is considered "severe," the ALJ must d e t e r m in e whether the impairment meets or is equivalent in severity to a listed m e n t a l disorder. Id. 404.1520a(d)(2). If the claimant has a severe mental im p a ir m e n t that neither meets nor medically equals a listed impairment, the ALJ must assess the claimant's residual functional capacity. Id. 4 0 4 .1 5 2 0 a (d )(3 ). See also Pelham v. Astrue, No. 4-07-CV-641-Y, 2008 WL 4 0 6 2 0 7 9 at *4 (N.D. Tex. Aug.25, 2008) (describing steps in psychiatric review te ch n iq u e ). T h e regulations also require the ALJ to document application of the p s y ch ia tr ic review technique in the written decision. The decision must include a specific finding as to the degree of limitation in each of the functional areas d e s c r ib e d in 20 C.F.R. 404.1520a(c). Where a non-frivolous claim of mental im p a ir m e n t exists, the ALJ's failure to follow the psychiatric review technique a n d make the required findings constitutes legal error and requires remand.1 6 S a t te r w h ite v. Barnhart, 44 Fed. Appx. 652, 2002 WL 1396957 at *2 (5th Cir. J u n e 6, 2002). In this case, the record clearly establishes that plaintiff has a medically The Court does note that there may be times when failure to complete the special technique will not be automatic reversible error. But in this case, Plaintiff has demonstrated prejudice. 16 7 d e t e r m in a b le mental impairment. Plaintiff began experiencing auditory h a llu c in a tio n s in 1990 and has been diagnosed with and treated for various p s y c h i a t r ic illnesses. On various occasions, mental health professionals m e a s u r e d plaintiff's GAF at between 35 and 50 - scores that indicate a serious im p a ir m e n t in social, occupational, or school functioning, including the inability t o keep a job. However, the ALJ gave minimal discussion to the psychiatric r e v i e w technique in the hearing decision. Nor did the ALJ rate the degree of fu n c tio n a l limitation resulting from plaintiff's various psychiatric illnesses. S u c h failure to comply with the requirements of section 404.1520a or otherwise c o n d u c t an equivalent evaluation constitutes reversible error and requires r e m a n d . Satterwhite, 2002 WL1396957 at *2 (ALJ's failure to evaluate mental im p a ir m e n t according to procedures described in section 404.1520a requires r e m a n d ); Skidis v. Comm'r of Social Security Admin., No. 3-08-CV-2181-N, 2009 W L 3199232 at *10 n. 4 (N.D. Tex. Oct.2, 2009) (same); Morris v. Barnhart, No. S A -0 5 -C A -1 0 1 9 -X R /N N , 2007 WL 496851 at *5 (W.D. Tex. Feb.7, 2007) (same). E v e n if it were to be accepted that the ALJ performed the required review (a s the Magistrate Judge found), the ALJ omitted portions of the Plaintiff's m e d i c a l history. In addition, the ALJ's ratings that Plaintiff can perform m in im a l self-care activities and spell "horse" forward and backward cannot w it h o u t greater explanation 1 7 result in the wholesale rejection of the Plaintiff's The Magistrate Judge correctly noted that the the ALJ was not bound by the findings made by the various psychiatrists, but as noted above, if the ALJ was going to not accept the psychiatrists' opinions, the ALJ is bound to fully and fairly develop the medical evidence and then explain his rejection. 17 8 tr e a tin g physician and the remaining medical evidence. The Fifth Circuit has held that generally "a treating physician's opinion o n the nature and severity of a patient's impairment will be given controlling w e ig h t if it is well-supported by medically acceptable clinical and laboratory d i a g n o s tic techniques and is not inconsistent with ... other substantial evidence. A lt h o u g h the treating physician's opinion and diagnosis should be afforded c o n s i d e r a b le weight in determining disability, `the ALJ has sole responsibility fo r determining a claimant's disability status.' `[T]he ALJ is free to reject the o p i n io n of any physician when the evidence supports a contrary conclusion.' G o o d cause may exist to allow an ALJ to discount the weight of evidence of a t r e a t in g physician relative to other experts where the treating physician's e v id e n c e is conclusory, is unsupported by medically acceptable clinical, l a b o r a t o r y , or diagnostic techniques, or is otherwise unsupported by the e v id e n c e . " Newton v. Afpel, 209 F.3d 448, 456 (5th Cir. 2000) (internal citations o m itted ). I n order for an ALJ to properly afford lesser weight to the medical opinions o f a treating physician, he must "perform a detailed analysis of the treating p h y s ic ia n 's views...." Id. at 453. In this case, if a detailed analysis occurred, the A L J failed to take in account all of the medical evidence before him. C O N C L U S IO N T h e Magistrate Judge Report and Recommendation is not accepted, and th is action is remanded to the ALJ for further consideration and analysis in a cc o r d a n c e with this opinion. The Clerk is instructed to issue a final judgment 9 in accordance with this order. I t is so ORDERED. S I G N E D this 2nd day of February, 2010. _________________________________ X A V IE R RODRIGUEZ U N I T E D STATES DISTRICT JUDGE 10

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