Rich v. Social Security Administration, Commissioner
Filing
11
OPINION AND ORDER: The Court GRANTS Plaintiff's 6 Motion to Reverse Decision of Commissioner, and DENIES Defendant's 10 Motion for Order Affirming Decision of Commissioner. Signed by Judge John M. Conroy on 1/24/2012. (hbc)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Katherine L. Rich,
Plaintiff,
v.
Civil Action No. 2:11-CV-85
Commissioner of Social Security,
Defendant.
OPINION AND ORDER
(Docs. 6, 10)
Plaintiff Katherine L. Rich brings this action pursuant to 42 U.S.C. § 405(g) of the
Social Security Act, requesting review and remand of the decision of the Commissioner
of Social Security (“Commissioner”) denying her application for disability insurance
benefits. Pending before the Court are Rich’s motion to reverse the Commissioner’s
decision (Doc. 6), and the Commissioner’s motion to affirm the same (Doc. 10). For the
reasons stated below, the Court GRANTS Rich’s motion; DENIES the Commissioner’s
motion; and REMANDS the matter for further proceedings and a new decision.
Background
Rich was thirty-two years old on the date she alleges she became disabled, May 1,
2004. She is educated through high school, and thereafter attained an associate’s degree
in radiation therapy from the University of Vermont. She has worked as a waitress, a
housecleaner, a house painter, and a radiation therapist.
The record reveals that Rich had a difficult childhood, enduring physical abuse by
her brother from the time she was a toddler until she was a teenager. In 1997, she
married a man who had an extensive criminal history and abused drugs and alcohol. He
was physically abusive towards Rich and served time in jail as a result. The couple has
since divorced. Rich was close with her father, and had a difficult time coping with his
death in August 2003. She has two children, who were approximately ages four and
fourteen on the alleged disability onset date. In March 2004, Rich stopped working. She
claims she was so depressed that she could not get out of bed, take care of her personal
hygiene, do any housework, or care for her children. Around this time, Rich abused
cocaine and alcohol, and committed crimes such as driving under the influence,
shoplifting, and selling drugs, resulting in her incarceration from June 2005 until October
2008. In January 2005, she lost custody of her children, and since then, her parental
rights have been terminated. In or around the spring of 2008, while Rich was
incarcerated, she began experiencing non-epileptic seizure-like spells. She has also
suffered from depression, anxiety, sleeping problems including nightmares, and fainting
spells; and has been diagnosed with post-traumatic stress disorder (“PTSD”) and
attention-deficit/hyperactivity disorder (“ADHD”).
In October 2008, Rich filed applications for disability insurance benefits (“DIB”)
and supplemental security income. In her DIB application, she alleged that, starting on
May 1, 2004, she has been unable to work as a result of her PTSD, depression, anxiety,
and fainting disorder. (AR 165.) She explained that, due to her “long history of familial
and spousal physical abuse,” she has had frequent nightmares and has been afraid to
2
leave her home, and has had panic attacks. (Id.) She further explained that her anxiety
has interfered with her ability to concentrate, remember instructions, and complete tasks;
she has been tired all the time and has frequently napped during the day; and she has
injured herself when fainting, “to the point that she [wa]s allowed to stay on her bed [in
jail] almost all day.” (Id.)
Rich’s application was denied initially and upon reconsideration, and she timely
requested an administrative hearing. On August 11, 2010, Administrative Law Judge
(“ALJ”) Robert Klingebiel conducted a hearing, at which Rich appeared and testified,
and was represented by counsel. (AR 23-43.) On October 14, 2010, the ALJ issued a
decision finding that Rich had not been disabled from May 1, 2004, the alleged onset
date, through the date of the decision. (AR 7-16.) The Decision Review Board did not
complete its review of the claim within the required time period, making the ALJ’s
decision final. (AR 1-3.) Having exhausted her administrative remedies, Rich filed the
Complaint in this action on April 1, 2011. (See Doc. 1.)
ALJ Determination
The Commissioner uses a five-step sequential process to evaluate disability
claims. See Butts v. Barnhart, 388 F.3d 377, 380-81 (2d Cir. 2004). The first step
requires the ALJ to determine whether the claimant is presently engaging in “substantial
gainful activity.” 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not so
engaged, step two requires the ALJ to determine whether the claimant has a “severe
impairment.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds that the claimant
has a severe impairment, the third step requires the ALJ to make a determination as to
3
whether the claimant’s impairment “meets or equals” an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (“the Listings”). 20 C.F.R. §§ 404.1520(d), 416.920(d).
The claimant is presumptively disabled if the impairment meets or equals a listed
impairment. Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984).
If the claimant is not presumptively disabled, the fourth step requires the ALJ to
consider whether the claimant’s “residual functional capacity” (“RFC”) precludes the
performance of his or her past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). The
fifth and final step requires the ALJ to determine whether the claimant can do “any other
work.” 20 C.F.R. §§ 404.1520(g), 416.920(g). The claimant bears the burden of proving
his or her case at steps one through four, Butts, 388 F.3d at 383; and at step five, there is a
“limited burden shift to the Commissioner” to “show that there is work in the national
economy that the claimant can do,” Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009)
(clarifying that the burden shift to the Commissioner at step five is limited, and the
Commissioner “need not provide additional evidence of the claimant’s residual functional
capacity”).
Employing this sequential analysis, ALJ Klingebiel first determined that Rich had
not engaged in substantial gainful activity since May 1, 2004, the alleged disability onset
date. (AR 9.) At step two, the ALJ found that Rich had the following severe
impairments: “an anxiety disorder and a substance abuse disorder.” (AR 10.) The ALJ
discussed Rich’s non-epileptic seizures and depression, but did not find either impairment
to be severe. (Id.) At step three, the ALJ found that Rich did not have an impairment or
combination of impairments that met or medically equaled a listed impairment. (AR 104
11.) Next, the ALJ determined that Rich had the RFC to perform a full range of work at
all exertional levels but with the following nonexertional limitations: “she is limited to
simple work-related instructions involving no intense social interaction.” (AR 11.) At
step four, the ALJ determined that Rich was unable to perform any past relevant work.
(AR 15.) And at step five, he concluded that there were jobs existing in significant
numbers in the national economy that Rich could perform. (Id.) The ALJ explained that,
although Rich’s ability to perform work had been compromised by nonexertional
limitations, these limitations had “little or no effect on the occupational base of unskilled
work at all exertional levels,” and thus a finding of “not disabled” was appropriate “under
the framework of section 204.00 in the Medical-Vocational Guidelines.” (AR 16.)
Standard of Review
The Social Security Act defines the term “disability” as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). A person will be found to be disabled only if it is determined that his
“impairments are of such severity that he is not only unable to do his previous work[,] but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.” 42 U.S.C. §
423(d)(2)(A).
In reviewing a Commissioner’s disability decision, the court limits its inquiry to a
“review [of] the administrative record de novo to determine whether there is substantial
5
evidence supporting the . . . decision and whether the Commissioner applied the correct
legal standard.” Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. § 405(g). A court’s factual
review of the Commissioner’s decision is limited to determining whether “substantial
evidence” exists in the record to support such decision. 42 U.S.C. § 405(g); Rivera v.
Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). “Substantial evidence” is more than a mere
scintilla; it means such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Poupore, 566 F.3d at 305.
Although the reviewing court’s role with respect to the Commissioner’s disability
decision is “quite limited[,] and substantial deference is to be afforded the
Commissioner’s decision,” Hernandez v. Barnhart, No. 05 Civ. 9586, 2007 WL
2710388, at *7 (S.D.N.Y. Sept. 18, 2007) (quotation marks and citation omitted), the
Social Security Act “must be construed liberally because it is a remedial statute that is
intended to include, rather than exclude, potential recipients of benefits,” Jones v. Apfel,
66 F. Supp. 2d 518, 522 (S.D.N.Y. 1999); Dousewicz v. Harris, 646 F.2d 771, 773 (2d
Cir. 1981) (“In its deliberations the District Court should consider the fact that the Social
Security Act is a remedial statute to be broadly construed and liberally applied.”).
Analysis
I.
ALJ’s Consideration of Rich’s Seizures, Depression, PTSD, and ADHD
Rich claims that the ALJ did not properly consider her seizures, depression,
PTSD, and ADHD, separately or in combination. The Court agrees.
6
The ALJ failed to discuss Rich’s PTSD and ADHD anywhere in his decision, even
though these diagnoses were made by multiple medical providers and were consistently
discussed throughout the record. (See, e.g., AR 623, 628, 632, 634, 762, 776-82, 989-96,
998-99, 1008, 1013-24, 1139.)1 In contrast, the ALJ acknowledged and discussed Rich’s
seizures and depression throughout his decision. (AR 10-13.) Yet still, the ALJ did not
find either impairment to be “severe” and does not appear to have included limitations for
these impairments in his RFC determination. This is despite the record revealing that
Rich’s seizures occurred at least twice and at most four times weekly, and included some
or all of the following associated symptoms: altered consciousness or loss of
consciousness, eye twitching, bowel incontinence, lip smacking, falling, staring, tongue
biting, unresponsiveness, urinary incontinence, and headache. (See, e.g., AR 33-34, 720,
987, 998, 1058.) Another significant fact that appears to have gone largely unrecognized
by the ALJ is that each of Rich’s three primary treatment providers (Dr. Brooklyn, Nurse
Manion, and counselor Berna) opined that she would miss three or more days of work
each month due to her mental impairments, including PTSD. (AR 985, 1149, 1154.) The
ALJ discounted either the existence or the limiting effect of Rich’s seizures, stating that
there is no evidence linking them “with anything other than [Rich’s] psychiatric
impairments,” and that it is unclear in the record whether they occurred two or five days
1
The record indicates that Rich may have used cocaine during the period considered by the ALJ,
for example, when she was diagnosed with ADHD. (See, e.g., AR 989, 992.) Although this could have
affected the disability determination, the ALJ did not consider it as a factor in his decision (nor do the
parties address it in their motions); and thus the Court does not consider it here. Also noteworthy, some
of the relevant medical records are dated well past the date last insured of December 31, 2007. But again,
the ALJ did not consider this as a factor in his decision, and thus the Court does not consider it here.
7
each week. (AR 10, 13.) But whether the cause of an impairment is psychological or
physical does not affect how functionally limiting it is. Moreover, it would seem that
having episodes of diminished or loss of consciousness even only two times each week
could preclude full-time work.2
It is well established in the Second Circuit that “‘the combined effect of a
claimant’s impairments must be considered in determining disability; the [Commissioner]
must evaluate their combined impact on a claimant’s ability to work, regardless of
whether every impairment is severe.’” Burgin v. Astrue, 348 F. App’x 646, 647 (2d Cir.
2009) (quoting Dixon v. Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995)); see 20 C.F.R. §
404.1523. Here, the ALJ found that Rich suffered from the severe impairment of “an
anxiety disorder” (AR 10), and was limited to “simple” instructions and “no intense
social interaction.” Yet the ALJ did not discuss Rich’s combined impairments –
including her PTSD, ADHD, depression, and seizures – and does not appear to have
included limitations for these impairments in his RFC determination. The Commissioner
argues that the ALJ was not required to consider Rich’s PTSD or ADHD because he
considered “symptoms potentially associated with these disorders, including depression
and fearful thoughts.” (Doc. 10 at 7.) But the medical evidence demonstrates that Rich’s
treating providers assessed her depression, seizures, PTSD, and ADHD as separate
diagnoses; if the ALJ rejected such assessment, he was required to say so and explain
why. See Burgin, 348 F. App’x at 648.
2
This is not an issue for the Court to decide, and neither party substantially addresses it in in
their motions. As discussed in more detail below, on remand, the ALJ should obtain the services of a
vocational expert to assist in the determination of whether having a non-epileptic seizure involving
diminished or loss of consciousness approximately two-to-five days each week would preclude work.
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II.
ALJ’s Consideration of Medical Opinions
Rich also claims that the ALJ erred in his consideration of the medical opinions,
particularly those of Rich’s treating therapists, Daniel Hall and Sandra Berna, and her
treating psychiatric nurse practitioner, Patricia Manion. The Court agrees.
A.
Daniel Hall, MA, NCC
The record contains the progress notes of Daniel Hall, MA, NCC3, who treated
Rich’s depression and other symptoms. (See, e.g., AR 730-38, 842-55, 1063-1133.)
These notes summarize Hall and Rich’s discussions regarding events and stressors
happening in Rich’s life, Rich’s struggle to stay sober, and Rich’s progress towards her
goal of preventing a drug or alcohol relapse. (Id.) The ALJ stated that he gave
“moderate weight” to Hall’s “opinions,” but seems to have been referring only to those
portions of Hall’s notes which state that Rich was “making good progress towards her
goals.” (AR 14.) Moreover, the ALJ appears to have ignored that Rich’s “treatment
goal,” with respect to her counseling with Hall, was “relapse prevention” and not
alleviating the symptoms of her depression or PTSD, or increasing her ability to function.
(See, e.g., AR 730-38, 842-55, 1063-1133.) In fact, despite stating in many of his notes
that Rich was progressing towards her goal of preventing relapse, Hall recognized that
Rich was still suffering from depression, PTSD, and seizures; and was struggling to
engage in activities and go out in public. (See, e.g., AR 734, 736, 851.)
Furthermore, the ALJ’s brief discussion of Hall’s notes suggests a
misunderstanding regarding mental illness. The very nature of the disease is that the
3
The initials “NCC” stand for National Certified Counselor.
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afflicted experience fluctuations in their symptoms; thus, a notation that a patient has a
“good day” or is progressing towards her goal does not imply that the condition has been
treated or is even improving. Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011). In fact,
in this case, the record contains treatment notes which reveal that, although Rich may
have had some good periods, she had some difficult periods as well. For example, Hall’s
May 2009 progress note documents a period where Rich was doing particularly poorly
and suffered a relapse:
[Rich] reports that after spending 4 days inpatient to have her seizures
tested she has felt both physically and emotionally drained. [Rich] reports
that her seizures/dissociations are PTSD related and that there is little
medication can do. [Rich] sad that since leaving the hospital she has had
over 50 seizures, has felt sick, and has slept and isolated non-stop. [Rich]
disclosed that besides the abusive relationships she has already talked about
she was molested regularly by her older brother. She became very
emotional and unstable when discussing this. She also reported that she
relapsed after getting out of the hospital.
(AR 851.) Other relevant progress notes from Hall state as follows: “reports abstinence
but continued depression and symptoms of PTSD . . . identified several activities that she
wants to engage in but is struggling to find the motivation to do so” (AR 734); and
(quoting Rich) “‘I want to get out and do things but I am just so afraid and find myself
slinking into corners’” (AR 736). The ALJ should not have “cherry-picked” from Hall’s
treatment notes – without explanation – giving weight only to the boilerplate statement
that Rich was progressing towards her goals while ignoring other substantive detail.
Scott, 647 F.3d at 740; Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004)
(“The ALJ is not entitled to pick and choose from a medical opinion, using only those
parts that are favorable to a finding of nondisability.”).
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B.
Sandra Berna, LCMHC
Next, Rich contends the ALJ erred in his consideration of the opinion of Sandra
Berna, LCMHC. Berna counseled Rich for approximately nine months, and opined that
Rich was markedly restricted in her ability to understand, remember, and carry out
complex instructions; make judgments on complex work-related decisions; and interact
appropriately with supervisors and co-workers. (AR 1152-53.) She further opined that
Rich would be absent from work more than four days each month. (AR 1154.) She
explained as follows:
[Rich] meets the criteria for [PTSD] and symptoms reported include
intrusive memories, flashbacks, overly anxious, easily triggered,
hypervigilence, avoidance of certain people, men, crowds and certain
situations, nightmares, a sense of horror and helplessness related to past
traumas, worry that she will not live as long as others, a severe startle
response, low mood with severe tearfulness at times, low energy, severe
sleep disturbance, poor focus and concentration, low motivation, isolating,
poor self[-]esteem, and poor interpersonal boundaries marked by chaotic
relationships, poor judgment and impulsivity. In addition, [Rich] has
multiple medical issues including traumatic brain injury causing seizures
that impede her ability to maintain stable functioning and her ability to
complete activities of daily living consistently.
(AR 1151.) Berna concluded that “it is unlikely that [Rich] would be able to maintain
[the] stability to be able to work gainfully, however, she would benefit from engaging in
ongoing volunteer work as a way to give back to the community.” (Id.)
The ALJ gave “little weight” to this opinion, on the stated grounds that it was
inconsistent and not supported by treatment notes “or the record in general.” (AR 15.)
The ALJ did not explain what aspects of Berna’s opinion he believed to be inconsistent,
but it can be deduced from the decision that he found it inconsistent to say that Rich was
11
unable to work but was nonetheless able to do volunteer work. The ALJ should not have
weighed this statement so heavily, however, as it is likely that Berna meant Rich could do
volunteer work on a less demanding and more flexible schedule than would be required
for full-time work. See Curley v. Astrue, No. 06-624-GMS, 2009 WL 813112, at *7 (D.
Del. Mar. 27, 2009). Generally, volunteer work is less stressful than paid work. Id. at *7
n.8. If the ALJ was troubled by this portion of Berna’s opinion, he should have sought
clarity from either Berna or Rich. Id. at *7 (“If the ALJ wished to know why [the
claimant] could apparently do [volunteer work] and not [paid work], he could, and
should, have asked [the claimant] that question himself while he was under oath.”).
Additionally, although Berna was not an “acceptable medical source,” and thus the
ALJ was not required to analyze her opinion under the treating physician rule, 20 C.F.R.
§ 416.913(a), the ALJ should have evaluated her opinion in more depth. Social Security
Ruling (“SSR”) 06-03p discusses how ALJs should evaluate the opinions of medical
sources who are not “acceptable medical sources,” including nurses, physicians’
assistants, therapists, and licensed clinical social workers. SSR 06-03p, 2006 WL
2329939, at *3 (Aug. 9, 2006). The ruling states: “Opinions from these [other] sources . .
. who are not technically deemed ‘acceptable medical sources’ under our rules, are
important and should be evaluated on key issues such as impairment severity and
functional effects, along with the other relevant evidence in the file.” Id. The ruling then
directs ALJs to use the same factors for the evaluation of opinions from these “other
sources” as are used to evaluate opinions from “acceptable medical sources,” including
treating physicians. Id. at *4 (citing 20 C.F.R. §§ 404.1527(d), 416.927(d)). These
12
factors include but are not limited to the length of the treatment relationship, the
frequency of evaluation, and the degree to which the medical source provided evidentiary
support for his or her opinion. Id.
Applying these factors here, the ALJ failed to note that Berna had a personal
treatment relationship with Rich. He also failed to juxtapose Rich and Berna’s treatment
relationship against the lack of such a relationship between Rich and agency consultants
Drs. Farrell and Conley, generically affording “great weight” to the consultants’ opinions
on the grounds that they were “supported by and consistent with the evidence of record.”
(AR 14.) Further, the ALJ failed to recognize that Berna’s opinion is largely consistent
with those of Rich’s other treating providers, including Hall and Manion. In fact, Berna’s
opinion that Rich would be absent from work more than four days a month is even
somewhat consistent with the opinion of Dr. John Brooklyn, who opined on two separate
forms that Rich’s impairments would cause her to be absent from work about three days a
month. (AR 981, 985.) The Commissioner relies heavily on Dr. Brooklyn’s opinion in
support of the ALJ’s decision that Rich was not disabled. But there is a striking
inconsistency in Dr. Brooklyn’s opinion – although he stated in notes from an office visit
that he could see no reason why Rich could not work (AR 988), he checked off a box on
two separate forms stating that Rich would be absent from work three days each month
(AR 981, 985). On remand, the ALJ should seek clarity from Dr. Brooklyn regarding
these statements. Moreover, as discussed earlier, if on remand the ALJ opts to give
significant weight to this portion of Dr. Brooklyn’s opinion, he should call a vocational
expert to assist in determining whether being absent three days each month would
13
preclude an individual such as Rich from employment.
C.
Patricia Manion, APNP
For the same reasons that the ALJ failed to properly consider Berna’s opinions, the
ALJ also failed to properly consider the opinions of Rich’s treating nurse, Patricia
Manion, APNP. Manion opined that Rich was moderately impaired in her ability to
interact appropriately with the public, supervisors, and co-workers; and would be absent
from work more than four days each month. (AR 1148-49.) The ALJ gave “little
weight” to this opinion on the grounds that “the opinion form was based upon [Rich’s]
self-reports and not Ms. Manion’s observations of [Rich] based upon medical and
treatment history.” (AR 15.) This is another incident of the ALJ improperly cherrypicking certain portions from a medical opinion, to the exclusion of other relevant
portions, without sufficient explanation. See Scott, 647 F.3d at 740; Robinson, 366 F.3d
at 1083. Although it is true that Manion stated that a portion of her opinion was based on
Rich’s “report[ing]” (AR 1147), it does not appear that the remainder of her opinion was
based solely on such reporting. Rather, Manion wrote in the opinion that her assignment
of moderate restrictions to Rich regarding interacting with others was due to “PTSD” and
an “inability to deal [with] men and crowds.” (AR 1148.) On remand, the ALJ should
reconsider Manion’s opinions, this time considering the relevant factors stated above.
Conclusion
This case must be remanded for further administrative proceedings because the
Commissioner failed to adequately consider Rich’s seizure disorder, depression, PTSD,
and ADHD, separately and in combination; and did not properly assess the opinions of
14
Rich’s treating medical providers. Accordingly, the Court GRANTS Rich’s motion
(Doc. 6); DENIES the Commissioner’s motion (Doc. 10); and REMANDS the matter for
further proceedings and a new decision in accordance with this ruling.
Dated at Burlington, in the District of Vermont, this 24th day of January, 2012.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge
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