Opinion
IP 00-1953-C-T/F
March 29, 2002
ENTRY REVIEWING COMMISSIONER'S DECISION
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Plaintiff requests judicial review, under 42 U.S.C. § 405(g), of the final decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Disability Insurance Benefits ("DIB"). The court rules as follows.
I. BACKGROUND A. Procedural
Plaintiff, Eddie J. Bryant, applied for DIB on August 28, 1995, alleging disability since November 20, 1994. (R. at 133-36.) His application was denied initially on November 9, 1995, and on reconsideration on January 26, 1996. (R. at 137, 142.) On March 6, 1996, Plaintiff requested a hearing. (R. at 144.) Plaintiff appeared with counsel in the proceedings before Administrative Law Judge ("ALJ") Andrew F. Tranovich on May 22, 1997, and April 7, 1998. (R. at 341-461.) These hearings culminated in the ALJ finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 26.) After Plaintiff's subsequent appeal to the Appeals Council was denied, the ALJ's findings became the final decision of the Commissioner. Thereafter, Plaintiff brought this action seeking judicial review of the decision pursuant to 42 U.S.C. § 405(g).
B. General
Plaintiff was born on June 25, 1956, and was forty-two years of age at the time of the ALJ's decision. He has received his General Education Diploma (GED) and an Associates Degree in Automotive Technology. (R. at 16.) Plaintiff last worked as an automobile mechanic. (Id.)
C. Medical Evidence
Following a closed-head trauma, Plaintiff was hospitalized with a right frontal temporal contusion, a small acute subdural hematoma, alcoholism, depression, and hyponatremia (sodium depletion) from November 20 to December 1, 1994. (R. at 212-15.) Plaintiff was prescribed anti-depressants and anti-convulsants (to prevent the onset of seizures) and was assigned to outpatient speech therapy to treat his slurred speech. (R. at 212-13.)
Plaintiff sought treatment for alcohol dependence on April 1, 1995, at Fairbanks Hospital. (R. at 230-39.) However, Plaintiff's physician, Timothy J. Kelly, M.D., indicated that Plaintiff relapsed seven to fourteen days after his release from Fairbanks and advised him to undergo detoxification treatment again (R. at 240-41). Although the record contains no reports related to subsequent hospital admission for detoxification, Plaintiff apparently underwent treatment for alcoholism once more and has remained sober since May 6, 1996. (R. at 263.)
Neurologist Marvin E. Vollmer, M.D., examined Plaintiff in April of 1995. Although Plaintiff complained of poor balance, poor coordination (particularly eye/hand coordination), and a sense of fullness in his right ear, Dr. Vollmer's report indicated that Plaintiff exhibited normal gait and station, normal motor skills (including fine movements), and displayed no tenderness or loss of hearing in his right ear. (R. at 260-61.) Similarly, Dr. Vollmer reported that Plaintiff's speech was normal. (Id.) A neurological examination showed normal function of all cranial nerves including visual fields. (Id.) During follow-up examinations in May 1995, Dr. Vollmer noted that Plaintiff seemed "intellectually brighter" after changing his anti-convulsant prescription from Dilantin to Tegretol, but acknowledged that he still complained of short-term memory problems, vision difficulty, incoordination, and right ear fullness. (R. at 251, 257.)
On July 6, 1995, Plaintiff underwent a neuropsychological evaluation performed by James B. Teague, Ph.D. (R. at 242-47.) Testing revealed Plaintiff's Full Scale I.Q. to be eighty-eight, placing him in the low average range of measured intelligence. (R. at 243.) Dr. Teague reported Plaintiff's language function to be within normal range, but found his problem-solving abilities moderately to mildly impaired. (R. at 245.) Plaintiff's short-term memory was found to be within the normal range while his long-term memory capabilities was mildly impaired. (Id.) Dr. Teague also noted that Plaintiff showed signs of mild depression. (R. at 246.) From these observations, Dr. Teague concluded that Plaintiff displayed moderate cognitive impairment, but was unable to determine whether the impairment was related to the closed-head trauma or alcohol abuse.
On November 1, 1995, clinical psychologist Alfred R. Barrow, Ph.D., performed a consultative psychological examination of Plaintiff. (R. at 263.) Dr. Barrow found Plaintiff's general memory to be slightly impaired for recent memory, somewhat impaired for immediate memory, and relatively intact for remote memory. (R. at 268.) However, test results placed Plaintiff's overall general memory functioning within the average range. (R. at 270.) He also found Plaintiff's concentration to be only mildly impaired, his formal judgment intact, and noted that Plaintiff was able to adequately perform four out of six mathematical problems as well as compute both simple and complex change problems. (R. at 268.) Dr. Barrow opined that Plaintiff's cognitive functioning should continue to improve, but recommended periodic supervision of his management of funds.
On November 2 and 6, 1995, state agency physician D. Crawford, M.D., and state agency psychologist J. Gange, Ph.D., reviewed Plaintiff's medical records and determined that he was not disabled as that term is defined within the Social Security Act. (R. at 202-09.) In January of 1996, another state agency team, consisting of physician W.S. Tucker, M.D., and psychologist K. Neville, Ph.D., reviewed Plaintiff's medical records and confirmed that Plaintiff's impairments were not disabling. (R. at 190-201)
On May 19, 1996, Plaintiff was admitted to Community Hospitals Indianapolis after suffering five seizures within twenty minutes. (R. at 100-02.) After being placed in the intensive care unit, Plaintiff's health stabilized. (R. at 111-12.) Dr. Steven M. Samuels, M.D., reported that Plaintiff exhibited residual emotional problems and occasional slurred speech. (R. at 111.) After an electroencephalogram found abnormalities, the neurology staff recommended an increase in Plaintiff's Tegretol dosage. (R. at 112, 114.) Plaintiff was released on May 22, 1996, with instructions to follow up with his primary doctor and Dr. Vollmer.
On May 28, 1996, Dr. Vollmer examined Plaintiff and found his mental status to be "about the same as prior to his recent hospitalization." (R. at 54.) Dr. Vollmer similarly found Plaintiff's neurologic status to be unchanged. (Id.) In a follow-up examination on July 3, 1996, Dr. Vollmer once again noted no neurological changes. (R. at 56.)
At the request of Dr. Vollmer, Dr. Teague performed another neuropsychological examination on November 4, 1996. (R. at 311.) Although Plaintiff reported decreased memory and motor function, his overall I.Q. scores remained statistically similar to previous scores (and actually trended slightly upward). (R. at 313.) Dr. Teague noted a decline in Plaintiff's cognitive skills of sequencing and short-term memory from the last evaluation. (Id.) However, those skills that did decline remained within the mild impairment range. (R. at 313.)
On March 31, 1997, Dr. Vollmer's physical residual functional capacity ("RFC") assessment placed no exertional limitations on Plaintiff's ability to work, but stated that the Plaintiff's history of seizures should prevent him from working around hazards such as machinery and heights. (R. at 295.) In a letter dated July 3, 1997, Dr. Vollmer explained that Plaintiff's sensation of poor balance "has never manifested any evidence of disabling balance problems," but found it reasonable to limit him from working at heights or other jobs which require an acute sense of balance. (R. at 309.) Similarly, Dr. Vollmer stated that Plaintiff's complaints of persistent double vision may have been exacerbated by medication, but noted that he had never witnessed any abnormalities in Plaintiff's vision that seemed disabling. (R. at 309.) However, Dr. Vollmer opined that Plaintiff's severe head injury of November 1994, when coupled with the depressant effect of necessary anticonvulsant medications, impaired his cognitive abilities to the extent that he was incapable of gainful employment (R. at 310).
On September 11, 1997, clinical psychologist Jack E. Thomas, Ph.D., reviewed the medical records of Dr. Vollmer and Dr. Teague at the request of the ALJ. (R. at 315-16.) After reviewing the records, Dr. Thomas opined that Plaintiff suffered mild cognitive suppressions consistent with organic dementia resulting from traumatic closed-head injury. (R. at 316.) However, Dr. Thomas stated that "the claimant's mental impairment(s) would not meet or equal a listing . . ." under the Listing of Impairments in the Code of Federal Regulations. (R. at 316.)
Neurologist Charles A. Bonsett, M.D., testified as a medical expert in neurology at the May 1997 hearing. (R. at 444.) Dr. Bonsett testified that Plaintiff has a seizure disorder and cognitive impairment secondary to a closed-head trauma. (R. at 445.) Although he stated that Plaintiff suffered an organic brain injury, he noted that there was no objective medical evidence to indicate extremely poor motor functioning or intermittent double vision. (R. at 443, 448, 450-51.) In fact, Dr. Bonsett agreed that the only physical limitations he would place on Plaintiff's ability to perform sustained work activities would be to prevent Plaintiff from working around dangerous machinery, heights, and operating a motor vehicle. (R. at 451.)
At the April 1998 supplemental hearing, psychologist Jack E. Thomas, Ph.D., testified as a medical expert in psychology. (R. at 359.) Although Dr. Thomas agreed that Plaintiff suffered from post-traumatic memory impairment and dementia related to a closed-head trauma, he stated that Plaintiff's intellectual performances revealed that he was operating within the low average range. (R. at 362-66.) He stated that his findings were consistent with the results obtained by Dr. Teague because the variability in the scores was statistically predictable, and he noted that Plaintiff's mental capabilities had not deteriorated over the past year of testing. (R. at 371, 374.)
Dr. Thomas affirmed his earlier mental RFC assessment, stating that Plaintiff's daily living restrictions and social impairments were only slight. (R. at 316-20, 361.) Plaintiff's concentration deficiencies manifested themselves often for complex tasks, but seldom for simple tasks. (R. at 375.) Lastly, Dr. Thomas stated that Plaintiff had only experienced one episode of deterioration or decompensation. (Id.)
II. DISCUSSION A. Standard of Review
The Social Security Act requires a reviewing court to accept the ALJ's findings of fact as conclusive if they are supported by substantial evidence and there has been no error of law. Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). Substantial evidence refers to relevant evidence that a reasonable mind could accept as adequate to support a conclusion. Id.; Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001). Although a reviewing court will review the entire record to determine if there is relevant evidence adequate to support the conclusion of the ALJ, it is improper for the court to decide facts anew, reweigh the evidence, or substitute its judgment for that of the ALJ. Kepple v. Massanari, 268 F.3d 513, 516 (7th Cir. 2001).
B. Analysis
When determining disability, the ALJ performs a five-step inquiry. Dixon v. Massanari, 270 F.3d at 1176 (summarizing the agency regulations set forth in 20 C.F.R. § 404.1520). This inquiry includes: (1) whether the claimant has been engaged in a substantial gainful activity within the last twelve months; (2) whether the claimant suffers from a severe impairment; (3) whether the impairment meets or equals any of the listed impairments in the Code of Federal Regulations; (4) whether the claimant has the RFC to perform any past relevant work; and (5) whether the claimant is capable of performing other work existing in significant numbers in the national economy. Id. In making his decision, the ALJ must articulate his analysis of that evidence and "build an accurate and logical bridge from the evidence to [his] conclusion." Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000). Although an ALJ may not ignore an entire line of evidence that is contrary to his findings he also "need not provide a complete written evaluation of every piece of testimony and evidence." Diaz v. Chater, 55 F.3d 300, 307-08 (7th Cir. 1995); see also Zurawski v. Halter 245 F.3d 881, 888 (7th Cir. 2001); Henderson v. Apfel, 179 F.3d 507, 514 (7th Cir. 1999).
In this case, the ALJ found that Plaintiff (1) had not been engaged in substantial gainful activity since November 20, 1994; (2) suffered from "severe" medically determinable impairments; but (3) did not have an impairment or combination of impairments that meet or are medically equal to the listings in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 27.) The ALJ also found that Plaintiff was (4) unable to perform his past relevant work as an automobile mechanic, but found that (5) his RFC was compatible with several jobs existing in significant numbers in the national economy. (R. at 28.)
Plaintiff challenges the decision at step three of the analysis, claiming that (1) the ALJ improperly found Plaintiff's impairment did not meet the requirements under listing 12.02 for Organic Mental Disorders; (2) the ALJ failed to develop the record regarding the claimant's mental impairment; and (3) the ALJ did not give proper weight to witnesses testifying on behalf of Plaintiff. The court will address each of these contentions in turn.
1. ALJ's Characterization of Plaintiff's Impairment
Plaintiff asserts that the ALJ erred in finding that his impairment did not meet the criteria of 20 C.F.R. Part 404, Subpart P, Appendix 1, 12.02 ("listing 12.02"). The ALJ found that Plaintiff did not meet the requirements of either section A or B of listing 12.02.
Plaintiff specifically contests the ALJ's characterization of impairments, claiming that an appropriate reading of the record compels a finding that Plaintiff satisfies the requirements of listing 12.02.
In order to qualify as impaired due to an Organic Mental Disorder under listing 12.02, Plaintiff must satisfy both sections A and B. Young v. Sec'y of Health and Human Servs., 957 F.2d 386, 389 (7th Cir. 1992). If a Plaintiff fails to meet the requirements of either section, the ALJ must find that he does not meet or equal a listed impairment under this section. Id.
In order to fulfill the requirements of section A, a claimant must show a loss of specific cognitive abilities or affective changes as well as a medically documented persistence of one of seven impairments. 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.02(A). The impairment relevant to this inquiry requires demonstration of a "[l]oss of measured intellectual ability of at least 15 I.Q. points from premorbid levels of overall impairment index clearly within the severely impaired range on neuropsychological testing, e.g., the Luria-Nebraska, Halstead-Reitan, etc." Id. at 12.02A(7).
Section B lists four limitations related to organic mental disorders. Two of the four must exist in order to fulfill the requirements of section B. These limitations are: (1) marked restriction of activities of daily living; (2) marked difficulties in social functioning; (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-like settings which cause the individual to withdraw from a particular situation (which may include deterioration of adaptive behaviors). Young, 957 F.2d at 390 (summarizing the limitations under part B).
The ALJ's finding that Plaintiff did not meet section B is supported by substantial evidence. Although the record suggests that Plaintiff suffers from mental impairments, the neuropsychological test results indicate that Plaintiff does not meet even one of the four requirements listed under section B. The neuropsychological expert, Dr. Jack E. Thomas, found Plaintiff's restrictions on daily living and social functioning to be only slight, his deficiencies in concentration resulting in problems of persistence or pace to occur seldom to often, and found only one instance of deterioration or decompensation in a work-like setting. (R. at 32.) Thus, Dr. Thomas concluded that Plaintiff failed to meet any of the four requirements of section B. (Id.) Similarly, state agency psychologist J. Gange, Ph.D., reviewed Plaintiff's records on November 2, only to find specifically that Plaintiff fulfilled none of the section B requirements. (R. at 207.)
As the ALJ specifically adopted the findings of Dr. Thomas in his opinion and appended the psychiatric review technique form to the opinion, this court must uphold the ALJ's finding that Plaintiff did not meet the requirements of section B because it is supported by substantial evidence. (R. at 19.) Therefore, the ALJ's characterization of Plaintiff's impairments under listing 12.02 was proper.
2. Duty to Develop the Record
Plaintiff argues that the ALJ erred in using a statistical assumption of his premorbid I.Q. rather than obtaining I.Q. scores from school records. He asserts that the I.Q. results from his school records, which were sent to the Appeals Council following the opinion of the ALJ, indicate that he has fulfilled the criteria of section A of listing 12.02.
Plaintiff submitted the school records along with a report of the significance records by Dr. Odie L. Bracy, III on May 7, 1999. (R. at 333-38.)
The ALJ has a duty to fully develop the record. Luna v. Shalala, 22 F.3d 687, 692 (7th Cir. 1994). However, in determining how much evidence gathering was necessary, the reviewing court must respect the reasoned judgment of the ALJ. Kendrick v. Shalala, 998 F.2d 455, 458 (7th Cir. 1993). Moreover, even when the claimant is unrepresented, a significant, prejudicial omission is required before a court will find that the ALJ failed in his duty to develop the record. Nelson v. Apfel, 131 F.3d 1228, 1235 (7th Cir. 1997); Luna v. Shalala, 22 F.3d at 692. However, the claimant "must be given the opportunity to rebut this showing by demonstrating prejudice or an evidentiary gap." Scott v. Callahan, 977 F. Supp. 856, 857 (N.D.Ill. 1997) (citing Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994)). In deciding this issue, it must be noted that "records submitted for the first time to the Appeals Council, though technically a part of the administrative record, cannot be used as a basis for a finding of reversible error." Luna v. Shalala, 22 F.3d at 689; Wolfe, 997 F.2d at 322 n. 3.
The ALJ found that Plaintiff did not have an impairment or combination of impairments that are equal to or listed in Appendix 1 of the Code of Federal Regulations. (R. at 27.) The ALJ found that Plaintiff did not satisfy the requirements of section A because (1) Plaintiff's impairment index was not within the severely impaired range, and (2) the estimated I.Q. loss was less than fifteen points. (R. at 22-25, 21.) The ALJ also carefully documented the findings of the neuropsychological tests and found that they could not be construed to find that Plaintiff met two of the limitations under section B. (R. at 22-25.)
The omission of the previous I.Q. score from the record does not indicate that the ALJ was remiss in his duty to fully develop the record. Assuming, arguendo, that the premorbid I.Q. scores sent to the Appeals Council were appropriate for finding reversible error, their content does not compel a finding of reversible error. Although these records do indicate a nineteen to twenty-four point drop in measured I.Q. (R. at 340), 12.02(A)(7) also requires the "overall impairment index" to be "clearly within the severely impaired range on neuropsychological testing. . . ." Since Plaintiff's I.Q. scores indicate that he is currently functioning within the low average range (R. at 243), Plaintiff does not meet the "severely impaired range" requirement of listing 12.02. Therefore, the results of a premorbid I.Q. test were extraneous, and their exclusion could not be prejudicial to Plaintiff under these facts. As such, the exclusion of these scores does not indicate a breach of the ALJ's duty to develop the record.
Furthermore, Plaintiff must fulfill both sections A and B of the listing in order to qualify for benefits pursuant to listing 12.02. Young, 957 F.2d. at 389. Since the ALJ specifically found that Plaintiff does not satisfy section B of listing 12.02 (R. at 19-20), the omission of a premorbid I.Q. score from the record is not prejudicial to Plaintiff.
3. Proper Weight to Lay Witnesses
Plaintiff asserts that the ALJ did not give proper weight to the testimony of Plaintiff's mother or social worker. Plaintiff claims that the ALJ failed to articulate reasons for rejecting the credibility of the testimony given by his mother and social worker.
The Plaintiff's mother and social worker testified that Plaintiff was unable to perform even simple tasks such as paint a wall, balance a checkbook, shop for groceries by himself, or remember simple appointments and routine activities. (R. at 351-53, 357-58, 408-09.) Plaintiff claims that if this testimony was afforded proper weight, the ALJ must find that Plaintiff satisfies section B of listing 12.02.
The ALJ has the authority to assess both medical and lay evidence and give weight to evidence he finds credible. Stuckey v. Sullivan, 881 F.2d 506, 509 (7th Cir. 1989).
Furthermore, an ALJ need not articulate an evaluation of every piece of evidence or testimony. He must merely articulate his assessment of the evidence in such a manner that allows the reviewing court to trace his reasoning through the important evidence. Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993).
In this instance, the ALJ noted that the testimony of the lay witnesses was inconsistent with the objective psychological testing. (R. at 19.) Although the ALJ may not have given a lengthy dissertation as to his reasons for rejecting the lay testimony, he noted that the testimony of the "impartial medical expert" defied the statements made by Plaintiff's "mother" and "friend." (R. at 19.) As well, after reciting medical testimony which supports a conclusion that Plaintiff was only mildly impaired, the ALJ stated that "the claimant's allegations of severe disabling cognitive limitations . . . are not generally credible, and are consequently to be given `no weight.'" (R. at 25.) Since the record indicated that the findings by the neuropsychological testing were inconsistent with the testimonies of the mother and social worker, the ALJ's credibility determinations were both articulated and supported by substantial evidence. (R. at 382.)
The decision of the ALJ in this case is supported by substantial evidence and a well-developed record. As such, this court will not disturb the findings and conclusions of the ALJ.
III. CONCLUSION
IT IS THEREFORE ORDERED that the decision of the Commissioner in this case is AFFIRMED.