Opinion
CIVIL ACTION NO. SA-01-CA-0801 OG (NN)
September 9, 2002
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
I. Introduction
This is an action to review a decision of the defendant, the Commissioner of the Social Security Administration ("SSA"), pursuant to the Social Security Act ("the Act"), 42 U.S.C. § 405(g) and 1383(c)(3). Plaintiff/Claimant, Steven Oettinger, instituted this action pursuant to 42 U.S.C. § 405(g), seeking reversal of the Commissioner's final decision that he is not disabled and therefore, not entitled to receive disability benefits. Through his motion for summary judgment and supporting memorandum, plaintiff argues that the Administrative Law Judge ("ALJ") committed reversible error when she: (1) improperly considered the materiality of plaintiff's alleged alcoholism and drug addiction as part of his claim for disability benefits, (2) improperly ignored the medical findings of plaintiff's treating physicians, particularly those made by his psychiatrist, Dr. Lark Hughes as well as by psychologist Dr. Patricia Cunningham; opting instead to rely on the hearing testimony of a non-examining medical expert, and (3) that her findings regarding the effects of plaintiffs attention deficit hyperactivity disorder ("ADHD") on his daily life activities, and particularly on his ability to obtain and maintain employment, were not supported by the substantial evidence of record. Through the filing of this action, plaintiff seeks a reversal of the Commissioner's unfavorable decision, by arguing that his medical treatment records, the statements of his treating physicians, and the findings of the consultative examiner, conclusively establish that his ADHD condition and other related mental impairments render him totally disabled and entitled to benefits under the Act. Alternatively, plaintiff requests that his claim be remanded to the SSA for another hearing before an ALJ.
Docket Entries 12 and 13.
Docket Entry 13, at 4-14.
Id. at 14-15.
Id. at 15.
After considering plaintiffs motion for summary judgment, the defendant's brief in support of the Commissioner's decision, the plaintiffs reply to the defendant's brief, the transcript of the SSA proceedings, the pleadings on file, the applicable case authority and relevant statutory and regulatory provisions, as well as the entire record in this matter, it is my recommendation that plaintiffs motion for summary judgment should be GRANTED, IN PART, and this case be REMANDED to the SSA for proper development and a rehearing. In my opinion, the ALJ'S findings of no disability are not supported by substantial evidence and fail to comport with the applicable legal standards. Specifically, because the ALJ analyzed plaintiffs claim for benefits as if he was alleging disability based on current alcohol and/or drug usage, which was not the case, her whole assessment of plaintiff's mental impairments became skewed, and as such, it should be reversed. The reasons behind my recommendation are set forth more fully below.
Docket Entry 14.
Docket Entry 17.
Pursuant to Title 28 U.S.C. § 636(b)(1)(B) and Rule 1(h) of Appendix C to the Local Court Rules, this action to review the final decision of the Commissioner has been referred to me for review and recommendation.
The docket sheet of this case reflects that the District Court Judge to which this case has been assigned referred this matter to me on August 30, 2001.
II. Jurisdiction
The court has jurisdiction under 42 U.S.C. § 405(g) and § 1383(c)(3).III. Administrative Proceedings
According to the record in this case, plaintiff fully exhausted his administrative remedies before filing this action in federal court. Plaintiff filed this, his first application for Disability Insurance Benefits and Supplemental Security Income Benefits under Title II and XVI of the Act on August 12, 1997. He alleges an onset date of disability of October 1, 1995. The SSA initially denied his application on November 18, 1997, and again on reconsideration on May 7, 1998. Plaintiff proceeded to the next step of the administrative process by requesting a hearing before an ALJ. The hearing took place on March 9, 1999, and plaintiff appeared represented by counsel. In addition to plaintiff's testimony, the ALJ also heard the testimony of a medical expert as well as that of a vocational expert.
Transcript at 15, 53-55, 63 and 313-315.
Id. at 33 and 42.
Id. at 49.
Id. at 332-75
The ALJ rendered her written decision on August 27, 1999 finding that the plaintiff was not a disabled individual as defined by the Act. Relying primarily on the hearing testimony of the medical and vocational experts, the ALJ found that despite plaintiff's severe impairments, consisting of ADHD and the loss of central visual acuity in his left eye due to a motorcycle accident in the late 1970's, he was nevertheless able to perform his past relevant work. Although most of plaintiffs previous employment was short term and sometimes erratic in nature, the ALJ identified those jobs which plaintiff performed for a longer duration and which could be construed as substantial gainful activities under the Act. In that regard, the ALJ characterized the following previous jobs as plaintiffs past relevant work: interpreter for the deaf; security guard; caretaker, provider and/or trainer for the mentally retarded; and a therapeutic technician. Even though the ALJ found that plaintiff failed to meet his burden of proving he was unable to perform his past relevant work, the ALJ nevertheless proceeded to determine whether plaintiffs current use of alcohol and drugs, as he testified at the hearing but which was otherwise not supported by the medical evidence of record, was a contributory and material factor to plaintiffs alleged inability to perform his past relevant work. In finding that plaintiffs purported continued use of alcohol and/or drugs was indeed a contributing factor material to his disability, the ALJ made the following specific rulings:
Id. at 114-21.
The record also indicates that in addition to his ADHD and his partial loss of vision, plaintiff had been diagnosed as suffering from polysubstance abuse (i.e., caffeine intoxication or caffeinism and substance abuse history) and from a personality disorder exhibiting narcissistic personality traits. Docket Entry 13, at 6; and Transcript, at 194, 189 and 187.
For instance, the record indicates that plaintiff worked in home maintenance as a painter, for the Census Bureau as a surveyor, and worked in other random jobs found through temporary service agencies. Transcript, at 342-43.
Transcript, at 19-20 (Finding No. 7).
Id. at 20, ALJ'S Finding No. 9.
• When using alcohol and drugs claimant is unable to sustain work on a regular basis.
• Absent drug and alcohol abuse, the claimant has the residual functional capacity to perform work-related activities for work requiring no more than a good ability to deal with co-workers, deal with the public, use judgment regarding decisions of personal safety, deal with work stress, understand, remember and carry out complex, detailed and simple job instructions, relate predictably in social situations and maintain attention and concentration, a fair ability to work independently and a poor ability to do abstract planning. There are no physical limitations. ( 20 C.F.R. § 404.1545 and 416.945).
• Absent alcohol and drug abuse, the claimant's impairments do not prevent the claimant from performing his past relevant work.
Id. at ALJ'S Finding No. 5 (Emphasis added)
Id. at ALJ'S Finding No. 6 (Emphasis added).
Id. at ALJ'S Finding No. 8 (Emphasis added).
Following the ALJ'S finding of no disability, plaintiff requested review of the ALJ'S decision to the Appeals Council on September 24, 1999. Almost two years later, on July 6, 2001, the Appeals Council denied plaintiffs request for review, concluding that the ALJ'S decision was not erroneous and adopting it as the final decision of the Commissioner. This lawsuit ensued.
Id. at 9.
Id. at 5-7.
Docket Entry 1.
IV. Issues Presented
1. Whether substantial evidence supports the ALJ'S decision that plaintiff was not a disabled individual under the Act.
2. Whether the ALJ'S decision comports with relevant legal standards.
V. Standard of Review
In reviewing the Commissioner's decision denying disability insurance benefits, lam limited to a determination of whether the decision is supported by substantial evidence and whether the Commissioner applied the proper legal standards in evaluating the evidence. The Fifth Circuit Court of Appeals has held that substantial evidence is "such relevant evidence as a reasonable mind might accept to support a conclusion." Substantial evidence is "more than a mere scintilla and less than a preponderance." Further, substantial evidence must do more than create a suspicion of the existence of the fact to be established, however "no substantial evidence" will be found only where there is a "conspicuous absence of credible choices" or "no contrary medical evidence."
Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); and 42 U.S.C. § § 405(g) and 1383(c)(3).
Richardson v. Perales, 402 U.S. 389, 390 (1971); Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).
Absire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1995).
If the Commissioner's findings are supported by substantial evidence, they are conclusive and must be affirmed. In applying the substantial evidence standard, I must carefully examine the entire record but must refrain from re-weighing the evidence or substituting my judgment for that of the Commissioner. Conflicts in the evidence and credibility assessments are for the Commissioner and not for the courts to resolve. Four elements of proof are weighed in determining if substantial evidence supports the Commissioner's determination: (1) objective medical facts, (2) diagnoses and opinions of treating and examining physicians, (3) the claimant's subjective evidence of pain and disability, and (4) the claimant's age, education and work experience. Before addressing the plaintiffs substantive challenges to the ALJ's decision, a discussion of the applicable standards used to analyze the entitlement of disability benefits under the Act is warranted.
Martinez, 64 F.3d at 173.
Ripley, 67 F.3d at 555; Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990) ("The court is not to reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner.")
Martinez, 64 F.3d at 174.
A. Entitlements to Benefits
Every individual who is insured for disability insurance benefits, has not reached retirement age, has filed an application for benefits, and is under a disability is entitled to receive disability insurance benefits. The term "disabled" or "disability" means 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 twelve months." A claimant shall be determined to be disabled only if his physical or mental impairment or impairments are so severe that he is unable to not only do his previous work, but cannot, considering his age, education, and work experience, participate in any other kind of substantial gainful work which exists in significant numbers in the national economy, regardless of whether such work exists in the area in which he lives, whether a specific job vacancy exists, or whether he would be hired if he applied for work.
42 U.S.C. § 423(a)(1) (2002).
Id. § 1382c(a)(3)(A) (2002).
B. Evaluation Process and Burden of Proof
Regulations set forth by the Commissioner prescribe that disability claims are to be evaluated according to a five-step process. A finding that a claimant is disabled or not disabled at any point in the process is conclusive and terminates the Commissioner's analysis.
20 C.F.R. § 404.1520 and 416.920 (2002).
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The first step involves determining whether the claimant is currently engaged in substantial gainful activity. If so, the claimant will be found not disabled regardless of his medical condition or his age, education, or work experience. The second step involves determining whether the claimant's impairment is severe. If it is not severe, the claimant is deemed not disabled. In the third step, the Commissioner compares the severe impairment with those on a list of specific impairments. if it meets or equals a listed impairment, the claimant is deemed disabled without considering his age, education, or work experience. If the impairment is not on the list, the Commissioner, in the fourth step, reviews the claimant's RFC and the demands of his past workf. If he is still able to do his past work, he is not disabled. If he cannot perform his past work, the Commissioner moves to the fifth and final step of evaluating the claimant's ability, given his residual capacities, age, education, and work experience, to do other work. if he cannot do other work, he will be found disabled. The claimant bears the burden of proof at the first four steps of the sequential analysis. Once he has shown that he is unable to perform his previous work, the burden shifts to the Commissioner to show that there is other substantial gainful employment available that the claimant is not only physically able to perform, but also, taking into account his exertional and non-exertional limitations, able to maintain for a significant period of time. If the Commissioner adequately points to potential alternative employment, the burden shifts back to the claimant to prove that he is unable to perform the alternative work.
20 C.F.R. § 404.1520 and 416.920.
Id.
Id.
Id.
Id.
Id.
Id
Id.
Id.
Leggett, 67 F.3d at 564.
Watson v. Barnhart, 288 F.3d 212, 217 (5th Cir. 2002).
Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989).
In the instant case, the ALJ reached her decision at step four of the sequential evaluation process. That is, she found that plaintiffs mental impairments did not preclude him from performing the work-related activities associated with his past relevant work as interpreter for the deaf, security guard, caretaker or therapeutic technician. While the ALJ found that plaintiff's mental impairments did not render him disabled, she nevertheless proceeded to analyze whether plaintiff's alleged current use of alcohol and/or drugs was a contributing factor material to his disability. The ALJ'S consideration of plaintiff's supposed alcoholism or drug addiction was not necessary as the ALJ did not find plaintiff disabled. A finding of disability must first be rendered before determining whether alcoholism and/or drug addiction materially contributed to the disability. Because the ALJ prematurely introduced plaintiff's alleged current use of alcohol and other drugs into her evaluation process, her whole assessment of the evidence of record became tainted and was not in conformance with the applicable legal standards.
Transcript, at 20.
See McGoffin v. Barnhart, 288 F.3d 1248, 1251 (10th Cir. 2002).
VI. Arguments and Conclusions of Law
A. Is the August 27, 1999 ALJ Decision Supported by Substantial Evidence?
Plaintiff challenges the ALJ'S decision on three main grounds: (1) the ALJ erred when she improvidently considered the materiality of plaintiffs alleged current alcoholism and/or drug addiction as part of his claim for disability benefits, (2) the ALJ erred when she improperly ignored the medical findings of plaintiff s treating physicians, particularly those made by plaintiffs psychiatrist, Dr. Lark Hughes, and those made by psychologist Dr. Patricia Cunningham; opting instead to exclusively rely on the hearing testimony of a non-examining medical expert, and (3) the ALJ erred in her assessment of plaintiff's ADHD condition and how this impacted on his daily life and work-related activities, more particularly on his ability to obtain and maintain employment. Plaintiff argues that these are reversible errors, not supported by substantial evidence and not in conformance with the applicable legal standards. In my opinion, plaintiffs grounds for reversal are meritorious and should be upheld.
1. The ALJ'S Consideration of Plaintiff's Alleged Drug or Alcohol Addiction Constitutes Reversible Error
According to the Fifth Circuit's decision in Brown v. Apfel, a claimant in a social security case, bears the burden of proof that drug or alcohol addiction ("DAA") is not a contributing factor material to his disability. However, the regulations expressly require that a prima facie finding of disability be made by the ALJ prior to considering the DAA issue. In other words, DAA becomes an issue in a social security claim for benefits only after the ALJ finds the claimant disabled. The regulations in that regard provide: " If we find that you are disabled and have medical evidence of your drug addiction or alcoholism, we must determine whether your drug addiction or alcoholism is a contributing factor material to the determination of disability." Accordingly, there must be a finding of disability prior to the ALJ considering whether DAA is a contributing factor material to the disability in question. Additionally, medical evidence, and not lay testimony, must support the DAA determination. As plaintiff correctly argues, it is only when these conditions are met, that the materiality of the DAA is considered. Further, according to the Brown decision, because the burden of proof lies with the plaintiff, he must be given the opportunity to present evidence as to whether his disability would have remained if he stopped drinking alcohol or using other drugs.
192 F.3d 492 (5th Cir. 1999).
Id. at 498-99 (defining the term "material" in the context of this inquiry and providing additional guidance concerning the proof upon which a claimant may rely in establishing that he or she would still be disabled under the Act absent use of alcohol and/or drugs). See also 42 U.S.C. § 1382(a)(3)(J).
20 C.F.R. § 416.935(a) and 404.1535(a) (Emphasis added). By way of background, it should be noted that these regulations came about in March of 1996 when Congress enacted changes to the Act prohibiting payment of benefits where alcohol or drug dependence is a contributing factor material to a finding of disability. See McGoffin, 288 F.3d at 1251; and Westerfield v. Apfel, 75 F. Supp.2d 970, 971 (S.D. Iowa 1999) (both cases citing to Contract with America Advancement Act of 1996. Public L. No. 104-121, 110 Stat. 847 (enacted March 29, 1996)).
See POMS DI 90070.050(C) DAA Material Determinations, which provides: "Medical evidence of DAA means the evidence: is from an acceptable medical source; and is sufficient and appropriate to establish that the individual has a medically determinable substance abuse disorder." See also 20 C.F.R. § 404.1412, 416.912, 404.1413 and 416.913.
According to SSA guidelines, if drug addiction or alcoholism is material, the individual cannot be considered to be disabled. If drug addiction or alcoholism is not material, the individual can be considered to be disabled. POMS DI 90070.050(B)(3).
In addition to the Brown decision and the federal regulations cited above, the SSA has also issued internal guidelines concerning the adjudication of a claimant's DAA. These guidelines provide a three-step evaluation process: (1) does the claimant meet the disability standard? (2) is there medical evidence of drug addiction or alcoholism? and (3) is the claimant's substance use or addiction disorder "material" to the disability determination? Consistent with the Brown decision and the federal regulations, this three-step evaluation process provides that a finding of disability must first be reached. If there is medical evidence in the record of drug or alcohol use, the ALJ must then determine if the use contributes to the disability. If it does contribute, the plaintiff is not entitled to these benefits, even though he is otherwise disabled. If drug or alcohol use is not contributory, then the plaintiff remains entitled to these benefits because he is otherwise disabled. Significantly, this analysis does not require a finding of disability because of drug or alcohol addiction. As discussed below, the ALJ failed to correctly follow this three-step approach.
POMS DI 90070.050(B); and sources cited in Docket Entry 13 at fn.21.
Regarding step one of the analysis, the ALJ in this case found that plaintiff did not meet the disability standard under the Act. The ALJ specifically determined that while plaintiff does have other severe mental impairments, they "do not prevent the claimant from performing his past relevant work." In finding no disability, the ALJ should have stopped at that point and no materiality determination of plaintiffs purported DAA was necessary. Instead, she continued in her analysis.
Transcript, at 20.
Even if the ALJ'S action to proceed to step two of the DAA analysis was proper, the ALJ nevertheless failed to make appropriate findings of medical evidence of drug addiction or alcoholism in this case. First, a review of the record reveals that the ALJ relied on the statement made by the non-examining consultative expert at the hearing concerning plaintiffs diagnosis of polysubstance abuse. It also appears that the ALJ placed substantial weight on the plaintiffs own hearing testimony concerning his current regular consumption of alcohol and illegal drugs ( i.e., one to three beers a day, two to three shots of hard liquor a couple of times a week, and marijuana use once in a while). Based on this hearing testimony, the ALJ concluded that there was sufficient evidence of continued alcohol and marijuana use. In my opinion, plaintiff's statements at the hearing were insufficient to raise a DAA question.
Id. at 16.
Id. at 338-40. While not cited by the ALJ in her decision, plaintiff testified at the hearing that his alcohol consumption did not always make him intoxicated and that his marijuana use was not continuous, but done "every so often." Id. at 339.
Indeed, according to my review of the hearing proceedings, it appears that the ALJ exhibited some bias against the plaintiff when, in discussing plaintiff's arrest for driving under the influence ("DUI") occurring a few years back, she commented: "[it] appears that you might have done that [getting intoxicated) with some great regularity. Do you still drink?" Id. at 338.
While plaintiffs statements may have supported the ALJ'S findings concerning current use of alcohol and marijuana use, plaintiff's statements in and of themselves do not necessarily establish that plaintiff had an alcohol or drug addiction problem so as to trigger the application of the DAA regulations. SSA guidelines on the issue specifically provide that: "[a]n individual's own statement about his condition, e.g., 'I am an alcoholic' or 'I am a drug addict,' is considered 'evidence,' but never sufficient and appropriate to establish the existence of DAA, even if that statement is reported by an acceptable medical source." Accordingly, the ALJ erred in her findings that plaintiffs testimony alone established that he was an alcoholic or a drug addict. In fact, the ALJ'S decision failed to cite any medical evidence of continued use.
POMS DI 90070.050(C)(1)(b) (Emphasis added).
While the ALJ mentioned plaintiffs diagnosis of polysubstance abuse, the medical records demonstrate that when this diagnosis was given, plaintiff was showing symptoms of caffeine intoxication and a past history of substance abuse. This diagnosis of past history was insufficient to conclude that plaintiff was an alcoholic or a drug addict at the time of the hearing. Indeed, most of plaintiffs medical records refer to a past substance abuse problem. For instance, according to the medical reports of plaintiff's treating psychiatrist, Dr. Lark Hughes, plaintiff had a "past substance abuse, " and aside from "caffeine intoxication," Dr. Hughes determined that substance abuse was not a factor in plaintiffs case. Similarly, Dr. Patricia Cunningham, who performed an extensive psychological evaluation of the plaintiff in December of 1996, did not find that substance abuse was a factor in plaintiff's case. Likewise, in a consultative evaluation conducted on April 3, 1998, Dr. Toni R. Dollinger, M.D., a psychiatrist, found that the plaintiff had a global assessment of functioning ("GFA") of fifty, and diagnosed him as suffering from ADHD. Although Dr. Dollinger referred to plaintiffs "history of IV Amphetamine use [ i.e., Speed]" she further stated that "he last used 22 years ago." Again, the evaluation of this consultative psychiatrist does not reference current substance abuse as an issue in plaintiff's case. Also, the psychiatric review completed by the SSA examiners in November of 1997, and reviewed below at the DDS level, specifically noted the absence of substance addiction disorders in the record. In my opinion, this medical evidence very well explains why plaintiff's alleged use of alcohol or other drugs was not an issue when plaintiffs application for benefits was considered below, at the initial and reconsideration levels of the SSA's administrative proceedings. Further, it is worth mentioning that there is no evidence that plaintiff had ever needed rehabilitative therapy for alcohol or drug abuse. To the extent that the ALJ may have found plaintiff's hearing testimony or that of the non-examining medical expert inconsistent with the medical evidence of record, it was her duty to discuss those inconsistencies in her decision and how she resolved them in support of her findings.
Docket Entry 13, at 8.
Transcript, at 189 and 266.
Id. at 249-56.
The GAF is a rating intended for use by mental practitioners with respect to planning treatment and tracking the clinical progress of an individual in global terms, using a signal measure. Through use of the GAP, the practitioner rates the patient's ability to function on a scale of 1 (the lowest rating) to 100 (superior functioning). A GAP of 50-41, for instance suggests: "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." DIAGNOSTIC AND STATISTCAL MANUAL OF MENTAL DISORDER 32, 34 (4th ed. 2000) (Emphasis in original).
Transcript, at 106.
Id. at 98.
Id. at 39 and 45.
20 C.F.R. § 416.927(d) and 404.15 12(e)(1). In that regard, the plaintiff notes in his reply brief that since the ALJ'S findings on DAA were purely based on the testimony of a non-examining, non-treating doctor, the ALJ could and should have contacted Dr. Hughes to find out her opinion on whether DAA was contributory. Docket Entry 17, at 5 fn.18.
Based on the substantial evidence of record, the ALJ'S materiality determination under the DAA regulations was improper. By inserting plaintiffs supposed alcoholism and/or drug usage into her analysis of whether plaintiff's other impairments rendered him disabled, without first making a determination on plaintiff's claimed impairments, the ALJ'S sequential evaluation process concerning plaintiff's entitlement to disability benefits became flawed. Contrary to the ALJ'S view of the case, it is evident that plaintiff was not seeking a disability determination based on alcoholism or drug addition. His claim for benefits was based on his ADHD. By focusing instead on plaintiffs alleged current alcoholism and/or drug addiction, conditions not substantiated by the medical evidence of record, the ALJ failed to properly make a disability determination of plaintiffs ADHD.
2. The ALJ'S failure to discuss the weight given to the medical evidence of record, particularly that of plaintiffs treating physicians, constitutes reversible error
A review of the ALJ'S decision demonstrates that she completely ignored the findings of plaintiff's treating physician, Dr. Hughes, and opted instead to rely exclusively on the hearing testimony of the non-examining medical expert.
See Myers v. Apfel, 238 F.3d 617, 620-21 (5th Cir. 2001) (the Court, in reversing and remanding a denial of benefits, stated that: "unlike the treating doctors, the medical expert was a non-examining witness. As such, his testimony should not have been afforded more weight than that of the examining doctors.").
The record of this case demonstrates that Dr. Hughes, a psychiatrist with the University Health System, had been treating the plaintiffs ADHD since at least February of 1997. Based on her psychiatric assessment gathered over the two years of treating plaintiff's condition, on March 1, 1999, Dr. Hughes authored a two-page letter summarizing the ADHD characteristics present in the plaintiff and stating the following: "I support Mr. Oettinger's application for disability because he has not been able to maintain effort at work or school due to extreme distractibility, inability to prioritize, disorganized thinking and impulsive actions and decisions." Further, on September 24, 1998, Dr. Hughes completed a Social Work Agency Referral Form in which she indicated that the plaintiff was "unemployable" due to his mental condition, i.e., ADHD. Dr. Hughes, in citing plaintiffs distractibility and inability to focus on a given task, also indicated that plaintiff was a "very bright and verbal individual who needed job skills from Easter Seals to help him maintain employment." None of this evidence was discussed by the ALJ in her decision.
Transcript, at 267.
Id. at 278.
The "treating physician's rule," as interpreted by the Fifth Circuit provides that:
It is not only legally relevant but unquestionably logical that the opinions, diagnosis, and medical evidence of a treating physician whose familiarity with the patient's injuries, course of treatment, and responses over a considerable length of time, should be given considerable weight. [U]nless there is good cause shown to the contrary the testimony of the treating physician must be accorded substantial weight.
See Smith v. Schweiker, 646 F.2d 1075, 1081 (5th Cir. Unit A, 1981) and floyd v. Bowen, 833 F.2d 529 (5th Cir. 1987).
Absent reliable medical evidence from a treating or examining physician, an ALJ may reject the opinion of the treating physician only if the ALJ performs a detailed analysis of the treating physician's views under the criteria set forth in 20 C.F.R. § 404.1527(d)(2). Specifically, this regulation requires consideration of: (1) the physician's length of treatment of the claimant; (2) the physician's frequency of examination; (3) the nature and extent of the treatment relationship; (4) the support of the physician's opinion afforded by the medical evidence of record; (5) the consistency of the opinion with the record as a whole; and (6) the specialization of the treating physician. Section 404.1527(d)(2) goes on to further state: "If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight." The ALJ not only failed to discuss any of the six factors as required by the regulation in her August 29, 1999 decision, but she also failed to explain why she was not giving any weight to the findings of plaintiffs treating physician, Dr. Hughes. To the extent that the Commissioner attempts to argue, post-hoc, that the ALJ acted properly in disregarding Dr. Hughes' medical opinion on the grounds that such opinion was unsupported by the medical evidence of record or was an otherwise an improper legal finding concerning plaintiff's disability status under the Act, such argument is without merit. Dr. Hughes' support of plaintiffs application for disability benefits based on her psychiatric treatment of plaintiffs ADHD condition over the time span of two years was well documented by the medical evidence of record and it did not interfere with the ALJ'S role of making a disability determination under the Act.
20 C.F.R. § 404.1527(d)(2) (codifying Social Security Regulation SSR-96-2p).
Id.
Transcript, at 14-20.
Docket Entry 14, at 7-8 (citing Paul v. Shalala, 29 F.3d 208, 211 (5th Cir. 1994)).
See Frey v. Bowen, 816 F.2d 508, 515 (10th Cir. 1987) (where the Court found that an ALJ'S assertion that a family doctor naturally advocates his patient's cause, is not good reason for an ALJ to reject his opinion as a treating physician).
Moreover, it should be noted that Dr. Hughes' assessment of plaintiff's mental condition is consistent with the one rendered by Dr. Cunningham, a psychologist. Dr. Cunningham interviewed and extensively tested plaintiff on December 2-3, 1996. Based on her evaluation of the plaintiff, Dr. Cunningham prepared an eight-page report on January 14, 1997 ("the Cunningham report") concluding the following:
[Plaintiff] meets the DSM-IV criteria for Attention Deficit Hyperactivity Disorder, Predominantly Inattentive type. Specifically, he is distractible and disorganized and is frequently unable to sustain attention. He often leaves tasks incomplete. He is forgetful, may not adhere to instruction and exhibits a lack of follow through. These characteristics have been with him since childhood and have contributed heavily both to his many school failings and to his employment difficulties. They were all present and impinging on school, social and work place life prior to a head injury suffered in a motorcycle accident some years ago.
Transcript, at 255. Besides plaintiffs inability to stay employed or to finish college, there is also evidence of record that plaintiff has had difficulty in forming long-standing personal relationships, and that in fact he lives by himself and has never been married. Id. at 342-43.
Again, the ALJ makes no reference to the Cunningham report in her decision. In fact, even non-treating source medical documentation, as noted by the plaintiff in his summary judgment brief, weighs heavily against the ALJ'S findings. Dr. Toni R. Dollinger, who performed a psychiatric evaluation of the plaintiff on April 3, 1998, described plaintiff as "[a] patient who clearly has difficulty completing task." Dr. Dollinger stated ultimately that: "It is unlikely that patient's pattern of going from job to job and place to place will change with any amount of medication.
Id. at 14-20.
Id. at 108.
Id. Dr. Dollinger's statement regarding medication refers to the use of Ritalin by the plaintiff as part of the ADHD treatment prescribed by Dr. Hughes. At the time of Dr. Dollinger's evaluation, plaintiff may have been taking Ritalin for approximately a year or so. Id. at 194.
To the extent that Drs. Hughes' and Cunningham's opinions or even that of Dr. Dollinger, were inconsistent with the opinion given by the medical expert at the hearing, as indeed they were, it was the ALJ'S responsibility to distinguish or to clarify those inconsistencies. Thus, for that reason, and because the ALJ failed to provide specific reasons why she apparently assigned no weight whatsoever in her decision-making process to the medical evidence provided by plaintiff and made part of the record, it is my opinion that her August 27, 1999 decision was not supported by substantial evidence nor did it comport with the applicable relevant legal standards.
3. The ALJ'S Findings Regarding the Effects of the Plaintiff's ADHD is not supported by substantial evidence
Id. at 16-17, and 355-67.
See SSR-96-5p.
SSR 96-2p reads in relevant part:
Paragraph (d)(2) of 20 C.F.R. § 404.1527 and 416.927 requires that the adjudicator will always give good reasons in the notice of the determination or decision for the weight given to a treating source's medical opinion(s), i.e., an opinion(s) on the nature and severity of an individual's impairment(s). . . the notice of the determination or decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.
According to my earlier discussion concerning the ALJ'S improper use of the DAA regulations in evaluating plaintiff's claim for benefits and her failure to properly consider and give weight to all of the medical evidence of record, particularly that of plaintiff's treating psychiatrist Dr. Hughes and psychologist Dr. Cunningham, it is my opinion that the ALJ'S findings regarding the effects that plaintiffs ADHS has on his daily life and work related activities were not supported by substantial evidence and must be revisited Further, it is evident, through plaintiff's erratic employment history and the opinions rendered by his examining physicians on the subject, that plaintiffs ADHD condition has interfered with his ability to not only obtain but also maintain employment. As such, upon rehearing, the ALJ would be required to consider the recent decision rendered by the Fifth Circuit on the issue and determine how it impacts the analysis in this case.
See discussion on plaintiff's previous two challenges, supra; and also the arguments raised by plaintiff in his summary judgment brief, Docket Entry 13, at 12-14, as well as in his reply brief, Docket Entry 17, at 7-8.
Watson v. Barnhart, 288 F.3d 212 (5th Cir. 2002).
VII. Recommendation
Based on the discussion above, it is my recommendation that the court REVERSE the Commissioner's decision and GRANT plaintiff's alternative request (Docket Entry 12) to REMAND this case for a rehearing before the ALJ for further proceedings, pursuant to sentence four of 42 U.S.C. § 405(g). The Commissioner's adoption of the ALJ'S finding of no disability in this case should be REVERSED because it was not based on substantial evidence and it was not a correct application of the relevant legal standards.Specifically, this case should be remanded so that the ALJ can properly analyze the severity of plaintiffs ADHD and related mental impairments and, only upon determining that those meet the requirements of the Act for a finding of disability, proceed to decide whether plaintiff's current alcohol or drug use justifies a DAA analysis. See Brown v. Apfel, 192 F.3d 492 (5th Cir. 1999), and 20 C.F.R. § 416.935(a) and 404.1535(a). The ALJ should also consider and weigh all the medical opinions of record in accordance with 20 C.F.R. § 404.1527(d)(2), 416.927(b) (f)(2) and SSR 96-2p, in determining whether plaintiff meets his burden of establishing that he is totally disabled and unable to perform his past relevant work or is otherwise unable to maintain any other work as identified by the ALJ, to the extent that such finding is required in this case. See Watson v. Barnhart, 288 F.3d 212 (5th Cir. 2002).
VIII. Instructions For Service And Notice of Right to Obiect/Appeal
The United States District Clerk shall serve a copy of this Report and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to 28 U.S.C. § 636(b)(1) and FED.R.Civ. P. 72(b), any party who desires to object to this report must serve and file written objections to the Report and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Report and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn, 474 U.S. 140, 149-52 (1985); and Acuña v. Brown Root. Inc., 200 F.3d 335, 339 (5th Cir.), cert. denied, 530 U.S. 1229 (2000).
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).