Opinion
Civ. No. 98-1288-WEB.
April 12, 2000.
MEMORANDUM AND ORDER
This is an action to review the decision of the defendant Commissioner, denying disability benefits to the plaintiff Awanda M. McClellan.
On April 28, 1994, plaintiff effectively filed an application for supplemental security income benefits and submitted a claim for disability insurance benefits on June 9, 1994, alleging inability to work beginning August 19, 1993, due to substance abuse and mental illness. Plaintiff was last insured for disability insurance benefits on December 31, 1993. There is no insured status requirement for plaintiff's supplemental security income claim.
To be eligible for supplemental security income benefits, plaintiff was only required to establish that she was disabled during the time her application was pending. 42 U.S.C. § 1382(c); 20 C.F.R. § 416.330, 416.335.
Both applications were denied initially and on reconsideration. On December 27, 1996, following hearings, the Administrative Law Judge found plaintiff disabled but for the provisions of 42 U.S.C. § 423(d)(2)(C), which preclude a finding of disability when alcoholism or drug addition are contributing factors material to the determination of disability. Plaintiff's request for a review by the appeals council was denied on June 13, 1998, and this appeal was filed pursuant to the provisions of 42 U.S.C. § 405(g).
42 U.S.C. § 423(d)(2)(C) provides:
(C) An individual shall not be considered to be disabled for purposes of this subchapter if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the Commissioner's determination that the individual is disabled.
In this case, the Commissioner does not claim that the denial is supported by "substantial evidence." Instead, he claims that the case should be remanded for further proceedings. When the action was first filed in this court, the Commissioner moved to remand the action, conceding that the ALJ had failed to make required findings which would support the denial of benefits. (Dkt. 12). The regulations require that in making a determination that drug abuse or alcoholism is a material factor contributing to plaintiff's disability, the ALJ must evaluate which of plaintiff's current physical and mental limitations would remain if plaintiff stopped using drugs or alcohol, and then a determination must be made whether any or all of plaintiff's remaining limitations would be disabling. 20 C.F.R. § 404.1535, 416.935 (1998). The Commissioner noted that while the ALJ determined that plaintiff's alcoholism and drug addiction were contributing factors to the disability, he did not provide a clear determination of plaintiff's residual status with drug and alcoholism and a clear determination of her status excluding the addictions. The Commissioner suggested that on remand, the ALJ would "update the medical record . . . and give full consideration to all treating sources and other medical opinion submitted." In essence, the agency admitted that the ALJ had failed to give such consideration to plaintiff's medical evidence.
The court overruled the motion to remand, noting that the agency had denied plaintiff's claim four times, and it clearly appeared that the ALJ had improperly determined the role that alcohol and drug addiction played in plaintiff's disability. After reviewing the record, it has become clear that the ALJ completely rejected the opinions of plaintiff's treating physicians and therapist who had diagnosed plaintiff's condition as schizophrenia, paranoid type, a condition which was present at the time she ceased work in August, 1993, and which pre-existed her dependence on alcohol and drug.
After an exhaustive review of the record, the court determines that the agency's denial of benefits should be reversed and that the case should be remanded for immediate computation and payment of benefits due to Ms. McClellan.
In beginning a review of this case, the court first notes that the evidence clearly establishes that plaintiff was dependent on drugs and alcohol for a considerable time. It is equally clear that plaintiff has been free of drug and alcohol abuse since inpatient treatment in January, 1995. The factual background includes this evidence of record:
At a hearing held November 21, 1996, the agency's medical expert testified that there was no evidence of substance abuse for the past year and one-half. Record 484.
In early 1991, plaintiff was admitted for 53 days' inpatient treatment for cocaine dependence at the Paralax Drug Treatment Center and was dismissed on April 26, 1991. She made marginal progress and was unable to benefit from the treatment experience. She was manipulative and dishonest and was suspected of using drugs during treatment. Diagnosis was drug abuse. (Record, 171-174)
Plaintiff was admitted to New Chance, Inc., for detoxification on November 7, 1991, and was released on December 10, 1991. No progress was made due to plaintiff's "lack of motivation." There was no diagnosis of any impairment. (Record, 226-228)
Plaintiff was incarcerated in 1992. The penal institution record, dated April 26, 1992, states she had the ability to undertake any work assignment or to reside in any standard cellhouse. Plaintiff reported at this time that she had no health problems. (Record, 219-225)
After plaintiff filed a claim for benefits, she was referred by the agency for psychological testing in August, 1994. Plaintiff reported continuing drug use. She was found to have average intelligence, scoring lowest in areas related to attention and concentration, which might be attributed to drug and alcohol use. Testing indicated lack of interest in the world around her, acting out, and lack of impulse control. (Record, 175)
There is no further medical evidence until January 3, 1995, when plaintiff's family brought her to a hospital emergency room complaining of chest pains. No cardiac problems were found but, because plaintiff complained of hearing voices and difficulty with sleep, she was referred for psychiatric care. At that time, plaintiff was seen by psychiatrist, Dr. Gary Porter, who provided a written report dated January 3, 1995:
Ms. McClellan is actively hallucinated and projecting things and using ideas of reference as well as loose thoughts and magical connections.
Additionally, she believes the reality of her secondary symptoms so strongly that for example last night she discharged a pistol into the floor to make them "go away". . . .
I've arranged for the patient to be hospitalized on 1C at St. Joseph and she'll be followed there until she's stabilized. (Record 234)
An intake report dated January 3, 1995, provides additional information on plaintiff's condition at that time:
. . . [Plaintiff] was actively psychotic and unable to provide many other details. Sister stated family has been concerned about ct. since about Thanksgiving when she began to isolate herself and they wondered whether she was back in her drug usage again but then realized this behavior was something they had not seen in her before. Ct. is unable to sleep, paces the floor at night, speaks back to the voices in her head, is suspicious and paranoid. She fired a gun recently into the floor of her apartment in an attempt to stop the voices. (Record 236)
The tentative diagnosis at this time was schizophrenia, paranoid type, cocaine induced psychotic disorder with hallucinations, and Polysubstance Dependence. (Record 238)
Plaintiff was under psychiatric treatment by Dr. S. S. Jehan, at the St. Joseph Medical Center from January 3, 1995, to January 18, 1995. (Record 239, et seq) In his discharge summary, Dr. Jehan reported that during hospital confinement plaintiff was medicated with Risperdal, Cogentin, and Thorazine and was seen in consultation by Dr. Meyers.
Such medications are prescribed for psychotic conditions. Record 489.
The consultation report of Dr. Meyers dated January 4, 1995, provides the following diagnosis:
Probable alcohol dependence. . . . alcoholic liver disease, lacking insight; schizophrenia. (Record 280).
During her hospital stay, plaintiff continued to hallucinate and remained quite tense; but, after a few days, the voices became less intense, her mood became stable, and she stopped hearing voices. She was discharged for outpatient treatment at the Sedgwick County Mental Health Treatment Center (Comcare). Dr. Jehan's final diagnosis in his report of January 18, 1995, was "Cocaine induced psychotic disorder with hallucinations. Cocaine abuse." (Record, 243-244)
After her discharge from the hospital, plaintiff reported to Comcare for outpatient treatment. (Record pp. 229 et seq) On January 25, 1995, Dr. Jehan reported that plaintiff was in fairly good remission with no hallucinations or psychotic behavior. On March 13, 1995, Dr. Jehan reported that she missed her February appointment because she was in jail for traffic violations. She had not taken her medication for almost two weeks, but she was "doing alright" except for hearing a voice occasionally. She did not show any active psychotic symptoms at that time. She told Dr. Jehan that "she has been staying clean." Risperdal and Cogentin were discontinued, but she continued with Thorazine. (Record, 233)
On May 3, 1995, Dr. Jehan reported that plaintiff found that medication was helping and that she was not bothered so much by the voices, although she still hears them occasionally. At times she had paranoid thoughts and did not want to leave home. There was no indication of any thought disorder, and she was placed on additional Thorazine during the day. (Record, 232)
On September 12, 1995, plaintiff called to report that the voices were back and they were constantly bothering her. She asked to go back on Risperdal which she took while in the hospital since this medication stopped the voices. Dr. Jehan discontinued Thorazine and again started her on Risperdal and Cogentin. (Record, 231)
In October, 1995, plaintiff's treatment at Comcare was transferred to Dr. Poly Tan. (Record, 231).
In a report dated February 9, 1996, Dr. Tan diagnosed plaintiff's condition as schizophrenia paranoid type. He stated that Risperdal and Cogentin had controlled plaintiff's auditory hallucinations but that she had not taken these medications since December, 1995, because she had lost her medical card and thought she had to pay a full fee for her visits. At that time she was hearing voices again, causing her to stay awake at night. Dr. Tan found plaintiff to be alert, oriented in all three spheres, well dressed and groomed with no evidence of paranoid delusions but with auditory hallucinations. (Record, 230)
Joe Sawyer, a Licensed Clinical Social Worker and a masters level therapist at Comcare consulted with plaintiff from the beginning of her treatment in January, 1995, upon her discharge from St. Joseph Hospital. A report dated April 1, 1996, prepared from his treatment notes, includes this information:
Ms. McClellan has had acute paranoid schizophrenic behavior all the time she has been seen here. Even when on medication, her auditory hallucinations are only in partial remission. The voices are "turned down." She also has the diagnosis of polysubstance abuse, which is in apparent remission. Although her substance abuse was originally thought to be the primary problem causing the psychotic disorder, it has become clear in therapy and with the fact that her psychotic disorder has continued long after she has stopped abusing drugs and alcohol that her paranoid schizophrenia is primary.
Paranoid schizophrenia usually begins after adolescence. It is sometimes triggered by a trauma and may have been exacerbated by the death of Ms. McClellan's father following which she continued to deteriorate. People with this disorder often turn to drugs and alcohol to treat themselves. Drugs and alcohol both help to suppress the paranoia and reduce the hallucinations. It can be out of self medication rather than drug addiction that the substance abuse has occurred. Therefore it is not surprising that the drug abuse would cease at least as good control is achieved with proper prescription anti-psychotic medications. (Record, 370-371)
Mr. Sawyer reported that plaintiff's schizophrenia caused difficulties with memory, concentration, and problems with supervisors or coworkers. "Her paranoia and hallucinations interfere with appropriate communication, especially because she has so much trouble distinguishing the real from the unreal." With reference to plaintiff's ability to work, Mr. Sawyer reported that:
She cannot persist in tasks, and her pace would also be severely limited. In addition to her concentration deficit, suspiciousness would hinder any work activity. I even question her ability to function in a sheltered workshop setting unless it had a firm and therapeutic structure geared to her psychiatric needs. She has definite difficulty just maintaining herself in the community with support. She cannot be expected to support herself as she is incapable of competitive employment. It does not appear to be her drug abuse that has caused her disability but her paranoid schizophrenia. Even if she had not medicated herself through substance abuse, she would still be disabled by her schizophrenia. (Record, 371)
Mr. Sawyer was of the opinion that plaintiff's mental condition predated August, 1993, when she stopped working as a dental assistant:
She has a history of hallucinations even before she realized they were hallucinations. She did not become disabled the day she was hospitalized or the day I first saw her. She has a chronic as well as acute disorder that is very severe. She deteriorated over a period of years. Based on how severe her condition has been since I have seen her, the natural progression of her illness, and her history, it is my opinion that she was definitely totally disabled as I have described in this letter by the time she stopped working in August, 1993. At that time and until her hospitalization, she lacked the insight to even seek treatment. (Record, 371)
Plaintiff, who was born August 15, 1957, was approximately 37 years of age when she filed her application for benefits. She was a high school graduate, had worked in restaurants and as a "packer" at Excel, and had attended Wichita State for several credit hours for training as a dental assistant. She reported employment as an assistant to Dr. D. W. Jones for various periods of time from 1979 to 1993. Her last date of employment there was August 19, 1993. (Record, 99) Plaintiff's earning record indicates that she was regularly employed from 1975 through 1986. From 1987 through 1991, plaintiff had no earnings except for a minor amount in 1988. Earnings were reported for 1992 and 1993. (Record, 94)
At the first administrative hearing before the ALJ on March 20, 1996, plaintiff testified that she had left her job as a dental assistant in August, 1993, because she made many mistakes and was told that if she did not resign she would be fired. Plaintiff stated that before and after August, 1993, to the present time she has experienced problems with auditory hallucinations and, between that date and December 31, 1993, she had used drugs and alcohol daily and cocaine every other day. She testified that hallucinations began shortly after the death of her father, and she used drugs and alcohol so she could sleep and quiet the voices she heard. She testified that she had no psychiatric treatment between August and December, 1993, because she was unaware of her psychiatric problems. She further stated that with medication she is able to concentrate on conversations without interference from hallucinations, with psychiatric therapy she is now able to differentiate between real voices and hallucinations, and with therapy she has no desire or need for substance abuse since medication is more effective than alcohol or drugs.
Exhibit 42, Record 382, is a statement from a coworker, Jeanice Reynolds, in the office of Dennis Jones, DDS that, she was present in the office when plaintiff left work there. Ms. Reynolds stated that:
Because she made too many mistakes and was not doing a good job, she was allowed to leave because that would be better for her. It was made known to her that if she did not leave she would be fired.
After plaintiff testified at the first hearing before the ALJ, her therapist, Joe Sawyer, provided a second report dated July 19, 1996, reiterating his opinion that plaintiff's substance abuse had masked plaintiff's larger problem, paranoid schizophrenia. (Record, 384-385)
Dr. Thomas E. McGurk, a psychiatrist retained by the agency, testified at a second hearing held on November 21, 1996. Solely from a review of plaintiff's medical records, he testified that he found evidence of an organic mental disorder with memory loss, perceptual and thinking disturbances, and problems with impulse control, but he attributed these symptoms to hallucinations and paranoid thinking induced by substance abuse. Dr. McGurk stated that he found "no evidence" of schizophrenia, attributing all of plaintiff's mental disabilities to drug abuse. He also found that her symptoms had been stable since January, 1995, but a reoccurrence could be expected if medication was discontinued.
When Dr. McGurk referred to the report of plaintiff's therapist, Joe Sawyer, the ALJ was quick to correct any impression that Mr. Sawyer was "a medical source." The exchange between the ALJ and Dr. McGurk continued in this manner:
Q. . . . You did not find established by the records schizophrenia; is that correct?
A. Not in my opinion, no.
Q. And why was it not established, sir?
A. She just doesn't get — there's a long note from a social worker that swears up and down she's schizophrenic, and I think it's totally wrong, and I don't know where he gets his information. I think it's all a result of drugs myself.
Q. All right. Sir, let me pause. A social worker by our law is not considered a medical source. The social worker is considered another source. Now, without getting too much into the gobbley gook, what it means is that I cannot rely on an opinion of another source including the social worker with regard to the nature and severity of an impairment.
A. I think it's diagnosed by somebody else someplace on a medication check note. I think I saw schizophrenia. I didn't write it down.
Q. I did find it as well. All right. In terms of it being totally wrong, can you give me an idea of the reasons for your opinion, sir.
A. Well, generally it has an earlier age onset. Generally these people are totally withdrawn isolated, peculiar. They don't relate to people, and this lady seems to be able to relate quite well, especially in periods of time. And all the sense, as far as I can see, are a result of long-term use of multiple substances, and they are permanent, though, in my mind. I don't think they'll go away with stopping the use of substances. But I just don't think she's schizophrenic. That's basically the reason why. [Record, 481-482].
As the ALJ continued to question Dr. McGurk, he again referred to the report of Joe Sawyer:
Q. All right. Sir, now, did you find any conflicts or inconsistencies between the medical evidence or internally within a particular medical report or even between the claimant's stated symptoms and the evidence, which effected your opinions?
A. No, except that one long letter, those two things from the social worker from Comp Care. They didn't seem to jive (sic) with the record. That's why I made the comment I did. Otherwise, no, I did not.
Q. With regard to the information or evidence supported by — excuse me submitted by the social worker, did you find any signature, other evidence on any of the documents that a psychiatrist, psychologist or a licensed physician had signed them?
A. No, I don't think so. I don't remember, but I don't think so, Your Honor.
I can look at them here. No, it's just signed by the social worker. (Record, 484-485)
In response to cross-examination by plaintiff's counsel, Dr. McGurk admitted that symptoms of medical illness may persist for some time before they are diagnosed, and that most individuals with psychotic illnesses do not seek treatment themselves and are usually taken to treatment by others, with many psychotically ill individuals never obtaining any treatment at all.
Following this second hearing in November, 1996, plaintiff submitted a third letter from Comcare dated December 16, 1996, signed by Poly Tan, M.D., and Joe Sawyer, LSCSW. (Record, 429-430) In pertinent part, this report stated that:
We again are concerned to learn someone reviewing Ms McClellan's records concluded that her impairments were the results of alcohol or drugs, and that she was not mentally ill. This opinion is totally contrary to our evaluation of Ms. McClellan. My letters to you on April 1, 1996 and July 19, 1996 reflect the diagnoses of Schizophrenia Paranoid diagnoses from the understanding we gained of her through our experience treating her. (sic)
With reference to the suggestions made by the ALJ regarding Mr. Sawyer's professional status, he stated:
. . . I am licensed by the State of Kansas on a Master's level, and have provided counseling and making diagnoses of mental disorders for the past twenty-five years. I've also testified in court as an expert witness on such matters. Dr. Tan has reviewed the letters described above and concurs with the professional opinions in them.
Upon the evidence described above, the ALJ entered her decision denying disability benefits on December 27, 1996. Under the five-step process of evaluating disability claims, the ALJ found at step two that plaintiff had the severe impairments of affective disorder, substance addiction disorder, and organic mental disorder, but she found that plaintiff did not have schizophrenia. (Record, 22) At step three she found that plaintiff met Listing 12.02 for organic mental disorder, Listing 12.04 for affective disorder, and Listing 12.09 for substance addiction disorders. (Record, 24, 32-35) She then determined that alcoholism and drug addiction were contributing factors material to the disability determination.
In making these determinations, the ALJ completely rejected the opinions of Poly Tan, M.D., plaintiff's treating psychiatrist, and Joe Sawyer, her therapist, contrary to the law prevailing in this and other federal courts. The court finds that these rejections resulted in error at step two, where the ALJ determined that the diagnosis of schizophrenia was not medically determinable, at step three where there was no discussion whether plaintiff met the listing for psychotic disorders, at step five, where she found that plaintiff could return to other work, and in further determining that drug and alcohol addiction was a material factor in plaintiff's disability.
In the first instance, the ALJ found that schizophrenia was not medically determinable because Poly Tan, M.D., was the only medical expert to diagnose that condition, while all other medical sources attributed plaintiff's psychotic symptoms to the effects of addiction. This statement is without support in the record and is contrary to other medical evidence discussed above, including the opinions of Dr. Gary Porter, Dr. Meyers, the consultant at St. Joseph Hospital, and Joe Sawyer, plaintiff's therapist. It is clearly apparent that the ALJ chose to rely on the "expert opinion" of Dr. McGurk, who testified without examining the plaintiff.
The opinions of treating physicians and physicians consulting for the purpose of treatment are entitled to greater weight than reviewing physicians and physicians retained by the agency to defend against disability claims. See Washington v. Shalala, 37 F.3d 1437, 1441 (10th Cir. 1994)
Dr. McGurk testified that he believed that Joe Sawyer "was totally wrong, and I don't know where he gets his information. I think it's all a result of drugs myself." Dr. Tan and Joe Sawyer explained the basis for their opinions. Dr. McGurk believed that plaintiff related to people "quite well." There is no basis in the record to support such a conclusion, other than the fact that plaintiff appeared to relate well to her treating physicians, Dr. Jehan and Dr. Tan, and to her therapist, Joe Sawyer.
It is apparent that the ALJ dismissed the opinions of plaintiff's therapist because of his lack of standing as a medical professional. As noted above, Mr. Sawyer's opinions were adopted and confirmed in writing by Dr. Tan. (Record, 429, 439) Mr. Sawyer's opinions are entitled to status even without Dr. Tan's confirmation because the definition of medical source which appears in 20 C.F.R. § 404.1502 includes both "treating sources" and "sources of record." That regulation states in pertinent part:
Source of record means a hospital, clinic or other source that has provided you with medical treatment or evaluation, as well as a physician or psychologist who has treated or evaluated you but does not have or did not have an ongoing treatment relationship with you.
* * * *
[A treating source] means your own physician or psychologist who has provided you with medical treatment or evaluation and who has or has had an ongoing treatment relationship with you. Generally, we will consider that you have an ongoing treatment relationship with a physician or psychologist when the medical evidence establishes that you see or have seen the physician or psychologist with a frequency consistent with accepted medical practice for the type of treatment and evaluation required for your medical condition[s].
Plaintiff was regularly treated at Comcare for her mental illness by health care providers designated by the clinic. They include Poly Tan, M.D., a psychiatrist, and Joe Sawyer, a professional therapist. Dr. Tan saw plaintiff on a regular basis and Joe Sawyer treated plaintiff once or twice a month. (Record, 458) Comcare is a "medical source of record" under the foregoing definitions. Mr. Sawyer is licensed by the State of Kansas to provide the diagnosis and therapy received by plaintiff as well as to express his professional opinion of her condition.
In Harmon v. Shalala, No. 93-1114-MLB (1994), plaintiff contended that the ALJ had improperly analyzed the evidence of his mental impairment, in particular the opinion of his treating psychologist who found him to be mentally impaired. In rejecting this opinion, the ALJ noted that the diagnosis was made by a registered masters level psychologist, and not by a doctor. The court found that the therapist was included in the treating physician rule, and remanded the case for further medical evidence, stating:
The court agrees with Harmon that the ALJ did not give specific reasons for rejecting the psychologists's opinion, Instead, the ALJ rejected the opinion on the basis that it was offered by a psychologist, not a medical doctor, as well as upon his review of the record as a whole. These reasons are insufficient to satisfy the specificity requirement.
In Ott v. Chater, 899 F. Supp. 550 (D.Kan. 1995), a staff physician at a mental hospital had assessed plaintiff's functional performance at "80," but a psychiatric social worker at the same facility had assessed his level at "43." The court remanded the case for further medical evidence.
In Walker v. Apfel, No. 97-1189-MLB (D. Kan. 1998), the court found that a masters level psychiatric social worker's opinion qualified under the treating physician rule:
The ALJ did give reasons for disregarding the opinion of Helen Findley. The ALJ stated that her opinion was inconsistent with the record as a whole and with the opinion of the medical expert, Dr. McGurk. However, her opinions are entirely consistent with the opinions of the treating psychiatrist . . . The court therefore finds that the ALJ improperly disregarded the opinions of the treating psychiatric social worker.
In addition to ignoring the treating physician's diagnosis of paranoid schizophrenia, and the medical evidence which established that plaintiff's dependence on alcohol and drugs was not a material contributing cause to her mental affliction, the ALJ erroneously gave undue weight to the January, 1995, date of diagnosis to find that plaintiff had no disability between the date of August 19, 1993, when she was last employed through the date of her insured status, December 31, 1993.
In Martens v. Chater, 1996 U.S. Dist. Lexis 20081 (D.Kan. 1996), the issue concerned a determination of the onset date of plaintiff's mental disability. The court determined that the ALJ's date of June 6, 1993, was improperly based on the date of diagnosis. The court agreed that the ALJ was able to reach this decision by overemphasizing evidence which supported a finding of no disability before that date and ignoring evidence which supported plaintiff's assertions. In this regard, the court ruled:
Generally, it is improper for the ALJ to select the date of diagnosis as the onset date of disability. Morrison v. Bowen, 738 F. Supp. 1351 (D.Kan. 1987). The court understands the temptation to settle on the date of diagnosis as it is often the only concrete date in the medical records. However, only in the rarest of cases is a person's disabling condition diagnosed on the day it begins. "Medicine simply is not practiced this way." Id. This is particularly true in the case of mental impairment, which often is not diagnosed right away precisely because the impairment interferes with the claimant's awareness of the cause of her difficulties. Id.
See also, Ott v. Chater, supra, 899 F. Supp. 550, 552 (D.Kan. 1995).
The court finds that plaintiff met her burden of establishing that she has a disability that prevents her from engaging in work activity. The court believes that a remand of the case would only further delay the determination and award of benefits. Dixon v. Heckler, 811 F.2d 506, 511 (10th Cir. 1987). Plaintiff's disability application has been pending for almost six years. In view of the substantial evidence which supports her claim, the agency's errors, and the agency's failure to meet its burden of proof at step five, this case will be remanded for an immediate award of benefits. Accordingly,
IT IS ORDERED that the Commissioner's decision denying plaintiff's application for benefits be, and it is hereby REVERSED, and this action is remanded with directions to award plaintiff disability benefits.
SO ORDERED this 12th of April, 2000.