Opinion
Case No. 2:02-cv-0340 TC
May 25, 2004
REPORT AND RECOMMENDATION REGARDING PLAINTIFF'S APPEAL OF THE COMMISSION'S DENIAL OF SOCIAL SECURITY
This matter came before Magistrate Judge Brooke Wells pursuant to 28 U.S.C. § 636(b)(1)(B) from a referral by Judge Tena Campbell. The Court has carefully reviewed the pleadings and finds oral argument would not be helpful. For the reasons set forth below, including the error in the medical expert's testimony offered at the hearing, the Court concludes that there is not substantial evidence in the record to support the decision of the Administrative Law Judge (ALJ) and Commission.
Accordingly, the Court recommends that Ms. Matsaw's appeal be granted and the case remanded to the ALJ for further proceedings consistent with the Court's recommendation and an award of benefits if appropriate.
STANDARD OF REVIEW
Review of the Commissioner's decision is limited to determining whether substantial evidence in the record as a whole supports the factual findings, and whether the correct legal standards were applied. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion". Evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion. The court may neither re-weigh the evidence nor substitute its discretion for that of the Commissioner. Where the evidence as a whole can support either the agency's decision or an award of benefits, the agency's decision must be affirmed.
See Castellano v. Secretary of Health Human Services, 26 F.3d 1027, 1028 (10th Cir. 1992); Hamilton v. Secretary of Health Human Services, 961 F.2d 1495, 1497-98 (10 Cir. 1992); 42 U.S.C. § 4O5(g);Richardson v. Perales, 402 U.S. 389, 402 (1981).
See Hamilton, 961 F.2d at 1498.
See Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992).
See Hinkle v. Apfel, 132 F.3d 1349, 1351 (10th Cir. 1997); Kelly v. Chater, 62 F.3d 335, 337 (10th Cir. 1995).
See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).
PROCEDURAL HISTORY
This is an appeal from the denial of Plaintiff's application for Child's Supplemental Security Income payments (SSI). Glens Daniels, Claimant's grandmother, filed an application for SSI on behalf of her granddaughter, Amber Lee Matsaw, on April 6, 2000. Ms. Matsaw's claim was denied initially and upon reconsideration. Following a hearing, in a decision dated November 26, 2001, the ALJ determined Plaintiff was not disabled. (Tr. 5-18). Ms. Matsaw was 6 years old when her application was filed and was 8 years old at the time of the ALJ's decision. (Tr. 9). The Appeals Council denied any additional review of the ALJ's decision, therefore, the ALJ's decision became the Commissioner's final decision for purposes of judicial review. See 20 C.F.R. § 416.1481. (Tr. 3-4).DISCUSSION
In August of 1996, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (the 1996 Act), which amended the statutory standard for children seeking SSI benefits based on disability. See 43 U.S.C. § 1382c(a)(3)(C).
An individual under the age of 18 shall be considered disabled . . . if that individual has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and 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. § 1382c(a)(3)(C)(i).
In response to the 1996 Act the Social Security Administration published and eventually adopted a set of rules that established a new sequential evaluation process for determining disability in children. First, it must be determined whether the child is engaged in substantial gainful activity, i.e. is the child working. See 20 C.F.R. § 416.924. If the child is working then they are not disabled. See id. at § 416.924(b). Second, if the child is not working, then there must be a determination of whether the child's impairment or combination of impairments are "severe." See id. at § 416, 924(a). If a child's impairment or combination of impairments are not severe, or results in a "slight abnormality or combination of slight abnormalit[ies] that causes no more than minimal functional limitations," then the child is not disabled. Id. at § 416.924(c). Finally, assuming the first two steps have been met, an impairment(s) "causes marked and severe functional limitations if it meets or medically equals the severity of a set of criteria for an impairment in the listings, or if it functionally equals" a listing. Id. at § 416.924(d). If an impairment fails to medically equal or functionally equal a listing then a child is considered not disabled. See id.
To determine functional equivalence under step three of this process an evaluation of six areas of functioning called "domains" must be performed. See id at § 4l6.926a. These six domains include acquiring and using information, attending and completing tasks, interacting and relating with others, moving about and manipulating objects, caring for oneself and health and physical well-being. See id. at § 4l6.926a(b)(1)(i-vi). To functionally equal the listings a child must have a medically determinable impairment or combination of impairments that "result in `marked' limitations in two domains of functioning or an `extreme' limitation in one domain." Id. at § 416.926a(a).
Hereinafter domains will be italicized for ease of reference.
The ALJ evaluated Plaintiff's claim and found that Claimant did not work and had severe impairments. (Tr. 9, 17). These severe impairments included a bipolar disorder, ADHD and a possible anxiety disorder. (Tr. 9). The presence of severe impairments per se, however, does not render a child disabled. These impairments have to result in a functional limitation so marked and severe for Plaintiff that they meet, medically equal or functionally equal a listed impairment.See 20 C.F.R. § 416.924(d), 416, 925-.926a; see also Potter v. Secretary of Health Human Servs., 905 F.2d 1346, 1349 (10th Cir. 1990) (noting that a diagnosis without evidence of actual disability is insufficient to find an individual disabled). Therefore, the ALJ went on to consider medical and functional equivalence to the listings.
At the medical equivalence stage, the ALJ found that Plaintiff was "not subject to any impairment or combination of impairments, that meets or medically equals the requirements of the Listing of Impairments." (Tr. 10). The ALJ cited the testimony of Bruce Atkin, Ph.D., the medical expert who testified at the hearing, as support for his finding. (Tr. 10).
Next, the ALJ considered functional equivalence in the six domains mentioned supra. See 20 C.F.R. § 416.926a(b)(1)(i-vi). In order to functionally equal a Listing, an impairment or combination of impairments must "result in `marked' limitations in two domains of functioning or an `extreme' limitation in one domain." Id. at § 416.926a(a). A marked limitation means "an impairment(s) interferes seriously with the ability to independently initiate, sustain, or complete activities." (Tr. 10). A marked limitation includes a limitation that is more than moderate but less than extreme. (Tr. 10). An extreme limitation occurs "when an impairment(s) interferes very seriously with the ability to independently initiate, sustain, or complete activities." (Tr. 10). Day-to-day functioning may be seriously limited or the "cumulative effects of an impairment" may limit several activities. (Tr. 10). Although an extreme limitation is the worst limitation it does not mean a "total lack or loss of ability to function." (Tr. 10).
The ALJ found that Plaintiff did not have any extreme limitation in the six domains. However, the ALJ did find that Plaintiff had a marked limitation in the domain attending and completing tasks, which was in agreement with Dr. Eliza E. Wochnik, Plaintiff's treating psychiatrist. (Tr. 13). In the remaining five domains, the ALJ found that Plaintiff had less than marked limitations. (Tr. 11-16). Because Plaintiff only had one marked limitation and no extreme limitation in any areas of functioning, the ALJ went on to find that Plaintiff's impairments do not functionally equal a listing. (Tr. 17). See 20 C.F.R. § 416.924(d). Accordingly, the ALJ then found that Plaintiff was "not under a disability as defined in the Social Security Act and derivative regulations." (Tr. 17).
After a careful review of the record and the accompanying memoranda submitted by the Government and Plaintiff, this Court concludes that there is substantial evidence to support the ALJ's finding that Plaintiff's impairments, either alone or in combination, did not meet or medically equal a listing. This Court also concludes that there is substantial evidence in the record to support the ALJ's findings regarding functional equivalence in five of the six domains. These include acquiring and using information, attending and completing tasks, moving about and manipulating objects, caring for oneself and health and physical well-being. The evidence in the record includes testimony given at the hearing by the medical expert, Dr. Bruce Atkin, reports from other doctors including Plaintiff's treating physician, Dr. Wochnik, reports from social workers and the observations of people who know Plaintiff including Ms. Daniels, Claimant's grandmother and teachers who worked with Claimant at school. In the remaining domain, interacting and relating with others, this Court concludes that there was not substantial evidence in the record to support the ALJ's finding that Plaintiff has less than marked limitations in this domain. (Tr. 15).
In discussing the interacting and relating with others domain, the ALJ noted the controlling weight that is given to a treating source's opinion pursuant to 20 C.F.R. § 416.927 and SSR 96-5p. "Generally we give more weight to opinions from your treating sources, . . . [i]f we find that a treating source's opinion . . . is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight." 20 C.F.R. § 416.927(d)(2).
In discounting the weight given to the opinions of Claimant's treating psychiatrist, Dr. Wochnik, the ALJ cited the change in her opinion from August 2000 and January 17, 2001 to October 17, 2001. Initially, Dr. Wochnik assessed a limitation of less than marked in the domain of interacting and relating with others, but on October 17, 2001, Dr. Wochnik corrected this to marked. (Tr. 14, 282, 307). Dr. Wochnik noted
two items were accidently marked one instead of the other (switched). The correct marking should be as follows: interacting and relating with others should read X marked, moving about and manipulating objects should read X less than marked.
(Tr. 307). Based on the record, it appears Dr. Wochnik erroneously switched the markings in these two domains and later sought to correct this mistake. (Tr. 282, 307).
As further evidence for discounting the opinions of Dr. Wochnik the ALJ cites to the testimony given at the hearing by Dr. Atkin, the medical expert. Dr. Atkin testified that "Dr. Watchnick [sic] certainly knows the case better than I." (Tr. 330). Dr. Atkin stated
my ratings are the same as her attending physician's [Dr. Wochnik,] with the exception of moving about and manipulating objects. The attending physician has that marked as marked. And I don't understand that.
(Tr. 328). Dr. Atkin opined that "based upon the record" Claimant has less than marked limitations in all domains except for attending and completing tasks. (Tr. 327-333).
From a reading of Dr. Atkin's testimony it is apparent that he was unaware of the change Dr. Wochnik made on October 17, 2001 to correct her previous mistake of incorrectly marking the domains moving about and manipulating objects and interacting and relating with others. (Tr. 307). Given the stated deference that Dr. Atkin gave to Dr. Wochnik in his testimony, see Tr. 330, it is highly likely that Dr. Atkin would have offered a different opinion about Claimant's limitations had he known about Dr. Wochnik's correction. Therefore, given the error in Dr. Atkin's testimony, it was improper for the ALJ to rely on Dr. Atkin's testimony as it relates to the domain interacting and relating with others.
The Court also notes the opinion of Theresa Ingram, Claimant's social worker who began counseling Claimant in approximately August 1999. (Tr. 14). Although not given controlling weight her opinion must be given appropriate weight based on the facts in the instant case. See 20 C.F.R. § 416.913(e). Ms. Ingram's opinions followed the same trend set forth by Dr. Wochnik. In 2000, Ms. Ingram indicates that Claimant "has a number of friends at school and interacts very well with them." (Tr. 14). However on January 2, 2001 and October 8, 2001, Ms. Ingram concluded that Claimant has marked limitations in interacting and relating with others. (Tr. 14, 280).
Certainly an individual's condition can deteriorate over the course of time and based on the opinions of Dr. Wochnik and Ms. Ingram this may have been the case with Claimant. In reviewing the ALJ's decision, it appears that the ALJ simply ignored any possible pattern of deterioration in Claimant's condition. Instead of considering such a possibility, the ALJ used the indications of deterioration, including changes in opinions about Claimant's condition, and the testimony of Dr. Atkin as a basis for his decision. It is appropriate to discount a treating source's opinion if it is inconsistent with "other substantial evidence" in the record. 20 C.F.R. § 416.927(d)(2). However, in light of the errors in Dr. Atkin's testimony, the opinions of Dr. Wochnik and Ms. Ingram and the reports by Claimant's grandmother and teachers, the Court concludes that the ALJ's finding that Claimant has less than marked limitations in the domain of interacting and relating with others is not supported by substantial evidence. "Evidence is not substantial if it is overwhelmed by other evidence in the record."
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992).
RECOMMENDATION
In viewing the record as a whole, there is substantial evidence supporting the majority of the ALJ's decision. However, there is not substantial evidence to support the ALJ's finding of less than marked limitation in the domain interacting and relating with others. Therefore, the ALJ erred in finding that Claimant was not disabled as defined in the Social Security Act. Plaintiff would be entitled to benefits if she functionally equals a listing(s). To functionally equal the listings a child must have a medically determinable impairment or combination of impairments that "result in `marked' limitations in two domains of functioning," 20 C.F.R. § 416.926a(a). The ALJ properly found that Plaintiff had marked limitation in the domain attending and completing tasks. If Plaintiff is found to have marked limitation in the domain interacting and relating with others she would be considered disabled.This Court, therefore, recommends that Claimant's request for remand or modification should be granted. Either the ALJ should reconsider the domain interacting and relating with others or should grant Plaintiff benefits. Copies of the foregoing report and recommendation are being mailed to all parties who are hereby notified of their right to object. The parties must file any objection to the Report and Recommendation within ten days after receiving it. Failure to object may constitute a waiver of objections upon subsequent review.