Opinion
Civil Action 23-3134
08-06-2024
JENNIFER LYNN VORHOFF v. MARTIN O'MALLEY, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION
SECTION: “I” (1)
LANCE M. AFRICK, JUDGE
REPORT AND RECOMMENDATION
Janis van Meerveld, United States Magistrate Judge
The plaintiff, Jennifer Vorhoff, seeks judicial review, pursuant to Section 405(g) of the Social Security Act (the “Act”), of the final decision of the Commissioner of the Social Security Administration (the “Commissioner”) finding that the plaintiff's disability has ended under Section 223(f) of the Act. The matter has been presented for decision by the parties' briefs in accordance with the Supplemental Rules for Social Security Actions. (Rec. Docs. 7, 12, 13). For the following reasons, IT IS RECOMMENDED that the decision of the Commissioner be reversed and that disability insurance benefits be awarded to plaintiff as of the date benefits were terminated.
Procedural Background
The Commissioner found Ms. Vorhoff disabled under the Act and eligible for Disability Insurance Benefits (“DIB”) as of July 23, 2010. It was found that her condition met Listing 12.04 “Depressive, bipolar, and related.” On February 2, 2016, it was determined that Ms. Vorhoff was no longer disabled as of February 3, 2016. This determination was upheld upon reconsideration after a disability hearing by a State agency Disability Hearing Officer.
Ms. Vorhoff obtained counsel and requested a hearing before an Administrative Law Judge (“ALJ”). Following a hearing, the ALJ issued an unfavorable decision on December 4, 2018. Ms. Vorhoff appealed to the Appeals Council, which remanded on December 17, 2019, and directed the ALJ to give further consideration to a medical source opinion that had been described in the ALJ's decision as having been received less than five days before the hearing and not admitted for consideration, but which was actually admitted as an exhibit and discussed in the decision. The same ALJ then held a new hearing on September 6, 2022. On December 22, 2022, the ALJ issued an adverse decision. The Appeals Council denied review on June 2, 2023.
On August 4, 2023, Ms. Vorhoff filed a Complaint in federal court to review the Commissioner's decision. (Rec. Doc. 1). The Commissioner answered and filed the administrative record. (Rec. Docs. 5, 6). The parties filed briefs in accordance with the Supplemental Rules for Social Security Actions. (Rec. Docs. 7, 12, 13). Ms. Vorhoff is represented by counsel.
Evidence in the Record
Hearing Testimony
As noted above, Ms. Vorhoff appeared at two hearings before the ALJ. One was held on August 6, 2018, and the second was held on September 6, 2022, after the Appeals Council remand.
In August 2018 she reported that she had last worked in 2010 running an intensive Chinese and Japanese language program as an administrative assistant at Cornell University. R at 99-100. Prior to her three years at Cornell, she had worked as a barista at Starbucks and a middle school teacher. R. at 101.
Ms. Vorhoff acknowledged going to Disney in 2014 right before her dad died. R. at 103. She took her daughter to Jazz Fest one day in 2017. R. at 104. She reported traveling to Houston to attend the Victory Parade for the Astros in 2017. R. at 105; R. at 1577. She helped her mother clean out her house when it flooded in Baton Rouge in September 2016. R. at 104; R. at 1251. She reported going to Mardi Gras parades near her synagogue, which is on Saint Charles Avenue. R. at 106. And she goes to services at her synagogue about once a month. R. at 113. She testified that on the recommendation of her therapist, she has tried to be more social. R. at 111. So, she has dated, and she has two friends that she does not see very often but who she could call if she needed something. R. at 112. She does not socialize with other parents at her daughter's cross-country meets. Id. She texts with the mothers of her daughter's friends when the kids are doing something. Id. She later explained that except for dating, the social activities she attends are always with her daughter or family. R. at 118.
Ms. Vorhoff, born 1977, now 47 years old, lives with her daughter, who was 15 years old at the time of the 2018 hearing. R. at 98. Ms. Vorhoff does the grocery shopping and the cooking for her household. R. at 107. When asked about her daily schedule, she reported that she does much better during the school year because she has a routine. R. at 107. She typically wakes her daughter and makes her breakfast, then brings her to school. R. at 107-08. Then she tries to do something physical like go for a walk or go to the gym to swim. R. at 108. After that if she is feeling well, she might go to the grocery, assess what she is cooking, or do some light housekeeping like a load of laundry. R. at 109. She brings her daughter to her cross-country meets and tries to attend her soccer and volleyball games. R. at 109-10. She noted, “I mean, I have to pick her up” so she tries to go earlier to see the game. R. at 110.
When Ms. Vorhoff has a bad day, though, she goes back to bed or cries. R. at 116. She gets up again when she has to go pick up her daughter. Id. She feels exhaustion, aches, and pains. Id. She feels foggy and overwhelmed. R. at 118. She estimated that on average she would have one bad week per month. R. at 117. She admitted that for the most part she is still able to pick her daughter up and help her get ready for school even when she was having a bad day-but she might also tell her daughter she has to take the bus home. Id. She testified that she probably has one, two, or three “very bad days” where she cannot pick her daughter up per month. Id.
Ms. Vorhoff had not been sleeping well and said that she did not function well on limited sleep. R. at 124. She had been having trouble with insomnia for the last four to six months and getting a full eight-hours sleep only two or three nights a week. Id.
Ms. Vorhoff reported attending therapy sessions with Dr. Stavros every other week. R. at 96. Ms. Vorhoff reported taking Geodon for mania, Wellbutrin, buspirone, trazadone, and Xanax. R. at 114. She also takes Topamax, Protonix for ulcers, and meloxicam for headaches. Id. She reported tremors as a side effect of Geodon and dry mouth from one of the other medications. R. at 115. She also reported nausea as a symptom of anxiety and a side effect from her medication. Id. She takes Zofran for that. Id.
Later at the September 2022 hearing, Ms. Vorhoff reported that her daughter had just started college. R. at 143. She and her daughter flew to Vermont to visit the university in the spring. R. at 143, 156. She and her mother drove her daughter to Vermont to start school in the fall. R. at 156. It was a four-day drive and they stopped at her cousin's home in Richmond in the middle. Id.
Ms. Vorhoff reported she was still trying to go to Elmwood Fitness twice a week to swim. R. at 149.
She described a typical week before her daughter left for college. R. at 149. Sometimes she would take her daughter to school or pick her up. R. at 152. On Tuesday and Friday morning she would try to go to the gym. R. at 150. Other days of the week she might go grocery shopping, which she does during the week to avoid crowds. R. at 150. She testified that she had helped an elderly neighbor with dementia between March 2021 to September 2021 by stopping by to offer and pick up groceries when she was going to the store. R. at 150-51. She had taken her daughter to a Mardi Gras parade in 2022. R. at 153.
At the time of the hearing her daughter was at college. R. at 155. Ms. Vorhoff said the day before the hearing she had slept until 1:00 pm, sat on the sofa, ate a mini pizza from the freezer, and went to bed at 9:00 p.m. Id. She now goes to the grocery store about every other week or every third week. R. at 159. She had not been dating in the past year. R. at 157.
She described her depressive episodes as lasting a week or two. R. at 161. She explained that she was having a depressive episode at the time and that everything was hard: brushing her teeth, showering, answering the phone, and replying to a text message. Id. When she has a depressive episode, she sleeps a lot. R. at 171. She reported that the previous time she had had a depressive episode was in May. R. at 161. She said she has them every few months. Id.
She described her manic episodes as like constantly running a marathon but not going anywhere. R. at 167. Her heart pounds and she feels overwhelmed like she has 100 things to do but cannot get anything done. Id. She had a manic episode after Hurricane Ida and she became obsessed with hurricane things. R. at 168.
Ms. Vorhoff described evacuating to Austin after Hurricane Ida. R. at 162. She, her daughter, and an elderly neighbor flew together to stay with her friend, who is also the neighbor's mother. R. at 162. After a week, Ms. Vorhoff and her daughter moved to a hotel in Austin. R. at Id. They just stayed in the hotel or visited with the friend. R. at 164.
She explained that she had “really bad anxiety” in 2018 so she went into the Behavior Modification Unit intensive outpatient treatment program hoping to avoid inpatient treatment. R. at 166. Before she entered intensive outpatient treatment in 2020, she was swinging between mania and depression. R. at 167. Again, she entered the program to avoid inpatient treatment. Id.
Vocational expert Jessica Earl testified at the hearing. R. at 174. She characterized Ms. Vorhoff's past work as administrative clerk, Dictionary of Occupational Title (“DOT”) number 219.362-010, classified as light level with an SVP of 4. Id. Though she noted that the record indicated that it was performed at a sedentary level. Id. The ALJ asked Ms. Earl to consider a hypothetical individual with the same age, education, and vocational background as Ms. Vorhoff with no exertional limitations but with an ability to understand, remember, and carry out instructions that are limited to detail and semi-complex; use of judgment limited to work-related decisions at the same intellectual capacity as understanding, remembering, and carrying out instructions; only frequent interactions with co-workers; only occasional or superficial and incidental interaction with the general public; changes in the work setting need to be a consistent vocation, schedule, and setting; and the work needs to be low to moderate stress and non-confrontational. R. at 174-75.
Ms. Earl testified that such a person could not perform Ms. Vorhoff's past work as an administrative clerk. R. at 175. However, she testified that such a person could perform work as a merchandise marker, DOT 209.587-034, classified as light level with an SVP of 2, and approximately 125,000 jobs nationwide; a router, DOT number 222.587-038, light with an SVP of 2 and 35,000 jobs nationwide; or small products assembler, DOT number 706.684-022, light with an SVP of 2, with 20,000 jobs available nationwide. R. at 176.
In jobs such as these, Ms. Earl testified that the tolerance for short-notice absenteeism (e.g., calling the night before or the morning of and saying you will not be in) is six to eight days per year for paid time off and an additional two or four days of unpaid days. Id. But she explained that this varies according to the size of the establishment, the industry, and the skill level of the work. Id. The vocational expert testified that if the employee was absent one time a month, the jobs listed for the hypothetical employee would not be available. R. at 177. In contrast, for the administrative clerk job, an absence of once a month would be tolerated. R. at 178. However, the vocational expert testified that two absences a month would also preclude the administrative clerk job. Id.
The ALJ then asked the vocational expert about tolerance for being off task more than coworkers. Id. By off task, the ALJ meant being away from the workstation or at the workstation not getting any work done. Id. The vocational expert testified that employers tolerate an employee being off task about ten percent of the time for jobs at the unskilled level. R. at 178-79. For a semiskilled job, she testified that the tolerance is about 15%. R. at 179. The vocational expert testified being off-task 15 % of the workday would eliminate the jobs listed for the hypothetical employee. Id.
The vocational expert then considered the hypothetical person with the original limits imposed by the ALJ but with the additional limit that they can only rarely interact appropriately with coworkers or supervisors. R. at 181. Such a person could not perform the listed jobs. Id. The vocational expert explained that an employee needs to be able to interact successfully with their supervisor. R. at 181-82.
This section summarizes medical evidence cited by the parties. The ALJ thoroughly summarized the medical evidence of record, including evidence not summarized herein. R. at 25-79.
Ms. Vorhoff attended mental health treatment at the Center for Adult Behavioral Health on May 10, 2012, the day before she was determined to be disabled on May 11, 2012. R. at 202, 1403. There is no evidence of further mental health treatment there. She was administratively discharged from the Center for Adult Behavioral Health on October 25, 2013, for failing to keep appointments or contact the Center. R. at 1400.
The next evidence of mental health treatment in the record is when she established care with Dr. Jennifer Braaten on May 13, 2015, reporting that she was grieving the loss of her father.R. at 970. Upon examination, Ms. Vorhoff's judgment and thought content were normal, but she was intermittently tearful and somewhat anxious. Id. She was assessed with anxiety, insomnia, and bereavement, and prescribed Xanax as needed for anxiety. R. at 970-71. She followed up on June 25, 2015, and reported decreasing the use of Xanax. R. at 987. She had normal mood and affect on examination. Id. She followed up for anxiety again in September 2015 and had normal mood and affect. R. at 1006-07. When she followed up in November 2015, she reported she normally took ½ tab of Xanax but sometimes needs more with triggers of her father's death. R. at 1026. Her affect was bright and her speech was slightly pressured. R. at 1027. She was assessed with depression and anxiety. Id. While presenting for treatment of a rash in late December 2015, it was noted that she was very irritable, tearful, aggressive, and anxious. R. at 1088. She complained about issues with her family and the scheduling of a flight. Id.
In summarizing the record, the ALJ noted that Ms. Vorhoff's application documents explained that she did not have health insurance for about two years until she got on Medicare and then received assistance in obtaining supplemental insurance. R. at 46. During that period she reported that she avoided public activities because they caused her stress, took vitamins, and attended support groups. Id. When she obtained insurance, she began visiting a primary care physician provider through the fall of 2014 and began mental health treatment again in 2015. Id.
Ms. Vorhoff was admitted for inpatient psychiatric hospitalization at River Oaks Hospital February 23, 2016, through March 2, 2016. R. at 1124-25. At admission, she presented with suicidal ideation and a plan to cut her wrist. R. at 1124. Over the course of her stay, she was started on Depakote for her bipolar disorder, Vistaril for anxiety, BuSpar for daytime anxiety, and Wellbutrin 150mg in the morning for her anxiety. Id. She was discontinued from Xanax. Id. She reported no side effects and felt the medication was helpful in treating her symptoms. Id. There was no evidence of suicidal ideation during her stay and she was able to attend groups and participate in discharge planning. Id. At discharge, Ms. Vorhoff denied any suicidal or homicidal ideation, her affect was bright, and she was future oriented. Id. She was discharged with prescriptions, refills, and instructions to follow up with the Ochsner Outpatient Program. Id.
According to her request for reconsideration dated February 11, 2016, she had been waiting for a month to see a psychologist. R. at 253.
She presented at Ochsner the next day to follow up with physician's assistant Jenny Saleeby for complaints of rapid heart rate and palpitations. R. at 1328. She was negative for sleep disturbance and dysphoric mood. Id. She was not nervous or anxious. Id. She had a normal mood and affect. Id. She was referred to cardiology and for a Holter monitor. R. at 1329.
Ms. Vorhoff was admitted into the Ochsner Behavioral Medicine Unit partial hospitalization program on March 8, 2016, and discharged on March 22, 2016. R. at 1297, 1326. While in that program, she treated daily. R. at 1298-1327. At her initial evaluation on March 8, 2016, she reported weight loss, chest pain, diarrhea, nausea, and paresthesia. R. at 1324. She reported she had been sleeping a lot and the last two weeks she did not eat well. Id. She reported crying a lot, low self-esteem, and feeling guilty about her father's death after she had been put in charge of his care. Id. Diagnoses of Bipolar disorder II and anxiety were noted. R. at 1326. Upon examination, she was quite verbal and somewhat difficult to interrupt. Id. Her mood was depressed and her affect was mildly constricted but appropriate. Id. Het thought process was circumstantial and her memory was grossly intact. Id. She attended the interview without distraction. Id. She had above average intelligence based on her verbal skills and her cognition was grossly intact. Id.
At her psychotherapy sessions during the program, it was noted that her progress was adequate or good. R. at 1298-1327. She reported no suicidal or homicidal ideation. Id. On March 9, 2016, Ms. Vorhoff reported looking forward to attending a play with her daughter that evening. R. at 1320. At her March 17, 2016, follow up, she reported she went to see the play again and enjoyed both a great deal. R. at 1305. She continued to report problems with sleep. Id. At the time of her discharge, she reported tolerating Depakote well. R. at 1297. She denied crying spells, reported eating well, and reported sleeping better although she still had some trouble falling asleep. Id. Her mood was “flat,” but her affect was full range and appropriate. R. at 1298. She had no suicidality, her orientation was grossly intact, and her behavior was adequate to circumstances. Id. She was continued on Depakote 1500mg daily and ordered to follow up with Dr. Wiedemann and Sr. Stavros. R. at 1298.
Ms. Vorhoff established care with Ochsner Outpatient Psychiatry on April 8, 2016. R. at 1289-90. She was tangential and circumstantial. R. at 1290. She had a surly attitude, was evasive about describing the details of her symptoms, she was softly crying, and she made poor eye contact. Id. She reported she was gaining weight and that she had indigestion since increasing Depakote. Id. Upon examination, her mood was depressed and her affect was flat. R. at 1291. Her thought process was normal and logical but her associations were circumstantial and tangential. Id. She was able to focus. Id.
Ms. Vorhoff presented for an initial evaluation with Dr. Helen Stavros, a licensed clinical social worker, on April 21, 2016. R. at 1285. Upon examination, her mood was steady and angry. R. at 1286. Her affect was congruent and appropriate. Id. No memory problems were noted. Id. Her judgment and insight were fair. Id. She was diagnosed with bipolar affective disorder, current episode mixed, without psychotic features. Id.
Ms. Vorhoff presented to Dr. Braaten on July 11, 2016, with complaints of headaches, weight gain, and hair loss. R. at 1277. She reported her headaches and weight gain were worse on Depakote and she had tapered off the medication. Id. She reported hair loss seemed a little better after stopping Depakote. Id. She was referred to neurology for her headaches. R. at 1278.
Ms. Vorhoff attended a new patient consultation with neurology on August 8, 2016. R. at 1269. She was assessed with occipital neuralgia, myofascial pain, tension headache, and migraine without status migrainosus. R. at 1279. She was restated on Topamax. Id.
On August 11, 2016, Ms. Vorhoff began physical therapy for headache and neck pain. R. at 1262.
On September 1, 2016, Ms. Vorhoff followed up with Dr. Stavros and reported she had been helping her mother and other relatives with flooded out homes in Baton Rouge and was exhausted. R. at 1251. She reported being upset by family dynamics such as an older sister who thinks she knows everything and her family not listening to her unless someone else says the same thing. Id. She was under a treatment plan to target symptoms of mood disorder with therapy. Id. Dr. Stavros noted that Ms. Vorhoffs progress toward goals was fair. Id.
She followed up with nurse practitioner Michael Santone on September 7, 2016, and reported having difficulty falling asleep and only sleeping 3-5 hours a night. R. at 1240. She reported a labile and fluctuating mood and that she was overwhelmed trying to help family members rebuild. R. at 1241. She reported feeling constant anxiety and pending panic. Id. Her thought process was normal and logical and her associations were intact. R. at 1242. Nurse Santone noted that Ms. Vorhoff's problems were inadequately controlled, that new problems had been presented, and that lack of compliance was complicating management of the primary condition. Id. She was continued on her medications of Wellbutrin, Buspar, and trazadone, with her Xanax dosage increased Id.
During her September 9, 2016, follow up with Dr. Stavros, she reported continued excessive stress from trying to take care of her mother's flooded home in Baton Rouge. R. at 1239. She reported losing nine pounds over the previous month and having vomiting or diarrhea. Id. Dr. Stavros noted her progress toward goals was fair. R. at 1240.
On October 4, 2016, Ms Vorhoff followed up with Dr. Braaten complaining of nausea and abdominal pain. R. at 1226. She reported an inability to sleep for over seven weeks. Id. She reported she had barely been eating because she feels sick afterwards. Id. She had lost 23 pounds since August. Id. It was noted that her Topamax dosage had been increased and that she had been stable prior to this. Id.
On October 19, 2016, an endoscopy was performed, revealing a small hiatus hernia, nine non-bleeding gastric ulcers and evidence of a Nissen fundoplication-the wrap appeared loose. R. at 1347.
She also met with Dr. Trent Desselle on that date for psychiatry follow up. R. at 1211. She reported being “pretty okay” after being off of mood stabilizers (Depakote) and starting Topamax per her neurologist. R. at 1212. She described being up and down and all over the place for a six week period when she was helping with flood cleanup. Id. She lost 24 pounds and did not sleep because she set the alarm every hour to change the wash for her family. Id. More recently she had had less severe episodes of mania that included cleaning (“scrubbing the floors with a toothbrush”) and excessive masturbation. Id. Her affect was slightly constricted and appropriate, her thought content was normal, and her associations were intact. R. at 1213. She was able to focus. Id. Dr. Desselle noted that Ms. Vorhoff's progress toward treatment goals was limited. R. at 1212. He also noted that although she seemed to be doing well, she was not on an antimanic agent. R. at 1213. They discussed starting Geodon. Id. Wellbutrin, buspirone, and alprazolam were continued. Id. It was noted she could continue Topamax for her headaches, but this would not provide much benefit to her mental health. Id.
On November 16, 2016, Ms. Vorhoff followed up with Dr. Matthew Rice in the gastroenterology clinic for continued evaluation of epigastric pain, nausea, and stomach ulcers. R. at 1196. Dr. Rice concluded that this pain, nausea, and her weight loss were due to multiple gastric ulcers in the antrum. R. at 1198.
She met with Dr. Stavros on November 7, November 17, and November 18, 2016. R. at 1194, 1195, 1200-01. She had no suicidal ideation. Id. She discussed depression and high anxiety about the Trump election and that her daughter had been threatened at school because she was Jewish. Id. She vented about frustrations with family and the election. R. at 1200-01.
She met with Dr. Stavros on December 8 and December 15, 2016. R. at 1176, 1185. She had no suicidal ideation. Id. She discussed her holiday plans of driving to Virginia and discussed issues with family. Id. She discussed anxiety about her life and plans to move to the Northeast where she might feel safer around more like minded people. R. at 1185.
On January 4, 2017, an endoscopy was performed, revealing a small hiatus hernia, one linear gastric ulcer with no stigmata of bleeding, and diffuse moderate inflammation characterized by erythema. R. at 1336. She followed up with Dr. Braaten on January 11, 2017, for ongoing nausea and weight loss. R. at 1156. She reported having trouble since the election, that her daughter had been threatened at school, and that they had applied for Canadian citizenship. Id. She had normal mood, affect, and behavior. R. at 1157. Her medications for chronic gastric ulcer, an allergic eye reaction, and itchy scalp were refilled. Id.
Ms. Vorhoff followed up with Dr. Stavros in psychiatry on January 12, 2017. R. at 115455. She discussed her continued weight loss even though her ulcers were improving. R. at 1155. She reported she did not have an appetite and did not have the energy to make herself something to eat. Id. Ms. Vorhoff related having an eating disorder in her 20s and felt the weight loss is partially physical and partly psychological. Id.
On January 26, 2017, Ms. Vorhoff underwent a Greater Occipital Nerve Block for treatment of her headaches R. at 1153. She was referred to Dr. Jeffrey Colegrove for evaluation of tension headaches on February 7, 2017. R. at 1144-45.
Meanwhile, she followed up with Dr. Rice on February 1, 2017, for dyspepsia and gastric ulcers. R. at 1147. She was still nauseated and had lost about 10 pounds. Id. She reported eating better. Id. Dr. Rice noted that her chronic ulcer was healing, but that the healing was likely slow due to her continued NSAID use. R. at 1149. She reported worsening musculoskeletal and body pains since stopping Duexis. Id. He encouraged her to stop selective NSAID use and discussed alternative pain management with her primary care physician. Id.
Ms. Vorhoff returned to Dr. Stavros on February 2, 2017. R. at 1146. She reported unhappiness with the political situation and expressed concern that her daughter was being ignored by her friends due to their political liberalism. Id. She reported she had been demonstrating, calling congressmen, and doing everything she could to protest the new policies, but she was trying to stay balanced and not go overboard with her zealousness. Id.
During her February 14, 2017, follow-up with Dr. Desselle she reported a great deal of stress and not responding well to the election of Donald Trump as president. R. at 1143. She had not been sleeping. Id. She reported that she married a Canadian she had known for 10 years with the thought that it would help her get out of the country after the election. Id. She reported she had been taking her medications the vast majority of the time, but that she had feeling like a “crazy woman” since November 10. Id. She had been going to the gym. Id. She had not been eating well. Id. She described herself as antsy and said she had been cleaning excessively. Id. Dr. Desselle noted that Ms. Vorhoff's progress toward treatment goals was limited and that her problems were adequately but not ideally controlled. R. at 1143-44. He increased her Geodon dosage and continued her on Wellbutrin, buspirone, and alprazolam. R. at 1144.
At her February 16, 2017, appointment with Dr. Stavros, Ms. Vorhoff talked about her frustration with the national situation, noting that she is intensely involved in reading about it. R. at 1141. They discussed ways to stay balanced, not go overboard, and have other things in her life that she enjoys. Id.
Ms. Vorhoff followed up with Dr. Stavros on March 16, 2017, and talked about concerns about her daughter at school. R. at 1495. They discussed mood regulation and problems with irritability with others. Id. She reported she attempts to control it but it is often overwhelming for her. Id.
She followed up with Dr. Braaten for her gastric ulcer, fatigue and weight loss, recurrent headache, and arthralgia in April 2017 and July 2017. R. at 2259-60; 2268. She had a normal mood and affect and normal behavior at both appointments. Id.
Meanwhile, at her April 20, 2017, appointment with Dr. Stavros, she reported she had felt nothing the past few weeks and felt more depressed than usual. R. at 1507. Ms. Vorhoff was concerned because she had started to feel that cutting would be a good outlet for her emotions again. Id. She said she felt she could benefit from being in the Behavioral Medical Unit before she gets worse. Id. But there were no openings until May 10, 2017. Id. Dr. Stavros noted that Ms. Vorhoff was “so bright and has good intellectualization skills so that it is difficult to get her to talk about her feelings and she often appears healthier than she really is.” Id.
On May 4, 2017, Ms. Vorhoff reported to Dr. Stavros that she continued to feel depressed. R. at 1513. She called the Behavioral Medicine Unit about getting into the program, but when she called back after they ran her insurance they gave her a later start date that would not work because her daughter's school would be having half days and she would need to pick her daughter up. Id. Additionally, she reported that she would be without insurance for several months over the summer due to the termination of her social security benefits. Id. Dr. Stavros noted that Ms. Vorhoffs progress toward goals was fair. R. at 1514.
On May 18, 2017, Ms. Vorhoff continued to feel depressed. R. at 1519. She talked about her depression and feeling sad, unmotivated, and irritable. Id. She was staying in bed a lot and was worried about being home alone when her daughter was away at camp. Id.
On June 1, 2017, she reported to Dr. Stavros that she continued to feel depressed. R. at 1525. She did not know how to act “normal” around others. Id.
At her July 27, 2017, appointment with Dr. Stavros, Ms. Vorhoff discussed her contentment with her current weight-she had lost 54 pounds over the previous year. R. at 1541. She reported that she is not hungry much and only eats about once a day. Id. Her daughter was away at camp and she reported she had been keeping busy and had done a few things with friends. Id.
On August 24, 2017, she reported to Dr. Stavros she was continuing to process feelings about what happened to her daughter at camp. R. at 1551. She also discussed her daughter's school and frustration there. Id. She no longer had ulcers and her weight had stabilized. Id. But she reported getting upset if she gains a pound or two. Id. She was eating a little more but not a normal amount of food. Id.
When Ms. Vorhoff met with Dr. Stavros on November 14, 2017, she mentioned attending a family wedding and they noticed she had lost weight and that made her feel more kindly toward her family. R. at 1577. She discussed her travel to Houston for the Astros victory parade because of her father's love of the Astros and said she was noticed by a news reporter because she was crying and holding up his picture; she said that being on TV and other news sources made her very excited and helped her process some of her grief about her father. Id. She had no suicidal ideation. Id.
On November 28, 2017, she reported to Dr. Stavros that she had a good Thanksgiving with her extended family, noting that she often comes away from family gatherings feeling awful. R. at 1582. She discussed her weight loss despite efforts to eat more. Id. She reported exercising daily but that she was not overdoing it. Id. She had no suicidal ideation. Id.
At her December 12, 2017, appointment with Dr. Stavros, she talked about how to deal with her sister during a visit for Christmas because her sister is always dismissive of her and disagrees with everything she says. R. at 1586. She noted that her sister and family do not approve of her being on disability and not working. Id. Dr. Stavros noted that Ms. Vorhoff was convinced she could not handle job stress without becoming emotionally ill and losing her job no matter how smart she is and how well she is able to handle her current life. R. at 1587. On January 4, 2018, Ms. Vorhoff discussed difficulties with her sister over Christmas. R. at 1591.
On February 15, 2018, she stated she was doing well as long as she stays within the boundaries she sets for herself. R. at 1801. She reported feeling anxious about the man she sees wanting more and the instability and emotions this might bring into her life. Id. At her March 1, 2018, appointment with Dr. Stavros, she discussed how to deal with dating a man she met during Mardi Gras. R. at 1307. At her March 15, 2018, appointment she stated the man she had been seeing was no longer responding to her, but that was ok because she was not interested in him. R. at 1312.
Meanwhile, at her February 27, 2018, follow up appointment with Dr. Braaten, she reported trouble sleeping. R. at 2282. And at her March 6, 2018, appointment with Dr. Desselle, she reported she was tired and not sleeping. R. at 2206. She reported she was not very manic. Id. She denied feeling depressed or having thoughts of harming herself. Id. Dr. Desselle noted that Ms. Vorhoffs problems were adequately but not ideally controlled. Id.
When Ms. Vorhoff met with Dr. Stavros on March 29, 2018, she talked about an upcoming family get together and how to handle it. R. at 1817. She also talked about having met a new man and discussing how to deal with this. Id. She had no suicidal ideation. Id.
On April 19, 2018, Dr. Desselle continued Ms. Vorhoff on Geodon, Wellbutrin, Lamictal, and trazadone. R. at 2301-02. Her mood was euthymic and her affect was appropriate. R. at 2301.
At her April 26, 2018, appointment with Dr. Stavros, Ms. Vorhoff continued to discuss her new relationship and fears and concerns about it. R. at 2538. Dr. Stavros noted that Ms. Vorhoff tends to over analyze and over think issues. Id.
On June 21, 2018, Ms. Vorhoff followed up with Dr. Stavros and discussed a trip to Houston with her mother and daughter and how stressed she got as everything was disorganized and out of place. R. at 2552. She also discussed an ongoing argument with her boyfriend over his parenting style, which she does not approve of. Id.
On the same day, Dr. Stavros completed a Mental Residual Functional Capacity Statement form. R. at 2303. She opined that Ms. Vorhoff would be aware of normal hazards and be able to take appropriate precautions. R. at 2304. However, she opined that Ms. Vorhoff would be unable to set realistic goals or make plans independently of others for 10% of an eight-hour workday. Id. And she opined that Ms. Vorhoff would be unable to respond appropriately to changes in the work setting for 15% or more of an eight-hour workday. Id. She opined that Ms. Vorhoff would be off task for more than 30% of an eight-hour workday and that she would be absent 5 days or more per month as a result of her impairments. R. at 2304. She reported that Ms. Vorhoff had a Global Assessment of Functioning (“GAF”) score of 65. R. at 2305. She opined that Ms. Vorhoff would be unable to work on a full time basis. Id. She explained that Ms. Vorhoff was stable currently due to a lack of stress in her environment. Id. She opined that if Ms. Vorhoff was stressed by a full-time job there would be a decompensation in her ability to function and she would be unable to maintain a job. Id.
On August 20, 2018, Dr. Desselle, opined that Ms. Vorhoff was unable to acquire and maintain gainful employment. R. at 4180. He noted that although she remains in treatment with the goal of improving her condition, they did not expect her condition to change significantly in the near future. Id. No further explanation was provided.
Meanwhile, Ms. Vorhoff continued treating for headaches in August 2018, with her Topamax prescription increased and Zanaflex continued. R. at 4218. Also in August 2018, Ms. Vorhoff presented to Dr. Braaten with an active ulcer causing severe abdominal pain. R. at 4951.
Ms. Vorhoff was admitted to the Ochsner Behavioral Medicine Unit again on September 24, 2018, complaining of “ridiculous generalized anxiety.” R. at 4270. She described excessive worrying and a number of trivial issues that cause her to feel stressed and panicked with heart racing, clammy hands, and feeling overwhelmed. R. at 4271. It was noted that her mood was anxious and her affect was mildly constricted, appropriate, and briefly tearful. R. at 4275. Her memory and orientation were grossly intact and she attended the interview without distraction. Id. She successfully completed the program by attending all group therapy sessions and working on coping skills. R. at 4305. She was maintained on her outpatient psychiatric regimen. Id. She was handling anger over current events well. Id. At discharge on October 5, 2018, her mood was “angry” at political events but not inappropriately so and her affect was congruent, but not inappropriate or excessive. R. at 4307. Her orientation and cognition were grossly intact, and she was cooperative, logical, and goal directed. Id.
On January 8, 2019, Dr. Desselle issued a more detailed medical opinion. R. at 4185. He noted that Ms. Vorhoff's diagnosis is believed to be Bipolar II disorder and that she also suffers from Generalized Anxiety Disorder. Id. He noted that she likely also suffers from Post Traumatic Stress Disorder due to childhood abuse and that this abuse is likely also related to her diagnosis of Borderline Personality Disorder. Id. He explained that his treatment of Ms. Vorhoff was primarily focused on treatment of her depressive episodes and anxiety with medication management. Id. He opined that Ms. Vorhoff was unlikely to be able to attend a job consistently enough to be tolerated by all but the most lenient employers due to her episodes of depression. R. at 4185-86.
On the same day, Dr. Stavros issued a medical opinion for Ms. Vorhoff, including a narrative explanation. R. at 4187. She opined that although Ms. Vorhoff is very capable intellectually, her personality, mood issues, and ADHD would prevent her from being consistent, focused, and able to comply with directions. R. at 4188. She explained that Ms. Vorhoff had helped her mother when her home flooded in August 2016 and helped care for her father when he was diagnosed with prostate cancer and was dying, but that she became manic in doing so and went through major depressive episodes afterwards. Id. Dr. Stavros explained that Ms. Vorhoff would not be able to hold a full time job because she would become highly anxious, combative, avoid work and be let go. R. at 4189. Dr. Stavros explained that Ms. Vorhoff is “easily overwhelmed and crippled by anxiety.” Id. She added that although Ms. Vorhoff can do things in small increments, she has created a stable life by adhering to a rigid schedule with intermittent activities and then rest. Id. She opined that if Ms. Vorhoff is unable to maintain this rigid control in her life she is highly likely to need hospitalization again or become nonfunctional. Id.
In February 2019, she presented to Dr. Braaten with toe discoloration and pain. Id. She was diagnosed with poor circulation of the extremity and cellulitis. R. at 5142. And in October 2019, she treated for chronic pain of the left knee and right elbow pain. R. at 5357. An x-ray in November 2019, showed a bone island distal femur and small osteochondroma of the proximal fibula. Id.
Ms. Vorhoff returned to Dr. Stavros in December 2019, and then continued behavioral therapy session with her approximately monthly throughout 2020. R. at 5766-5869. On January 23, 2020, she reported she was still caring for her neighbor, who was dying. R. at 5857. This was making her sad. Id. She had no suicidal ideation. Id.
On March 5, 2020, she reported she had been highly anxious over the preceding few weeks. R. at 5833. She cited stressors like her daughter getting a severe sun burn over Mardi Gras, her daughter's father seeking a return of $8,000 in extra child support payments that would severely reduce her child support, and the appeal of the cutoff of her disability benefits. Id. She stated she was very depressed, felt out of control of her life, and only left the house to exercise. Id.
When Ms. Vorhoff followed up with Dr. Braaten in April 2020, she reported she was sleeping a lot and was more nauseated than usual. R. at 6258.
On April 30, 2020, she treated for a tremor. R. at 6245. She reported it had started three years earlier in her hands and that the tremors were sporadic but had become more consistent in the preceding six months. R. at 6245.
When she returned to see Dr. Stavros in June 2020, she reported that she had attended an intensive outpatient program for about a month following her March visit. R. at 5820. She did not find it helpful because most of the people in it were very low functioning. Id.
She explained to Dr. Braaten in April 2020, that her insurance would not cover her seeing Dr. Stavros at the same time as the intensive outpatient program. R. at 6258. In an appointment with Dr. Desselle on April 20, 2020, Ms. Vorhoff reported that she was not actually attending an intensive outpatient program but was seeing a therapist at Better Care Essentials 2 to 3 times weekly. R.at 6528. There are no records of this treatment.
At her July 9, 2020, appointment with Dr. Stavros, Ms. Vorhoff reported she was paralyzed with depression and felt she was unable to do anything. R. at 5813. She had no motivation to clean up, could not read, and did nothing all day. R. at 5813. At her follow up on July 27, 2020, Ms. Vorhoff reported doing better with more activity and structure. R. at 5806.
An MRI was performed on September 14, 2020, concerning her tremor. R. at 6225; 6240. It revealed a cerebellar cyst, which Dr. Julia Staisch thought might explain her mild ataxia and dystonia. R. at 6240. She began physical therapy to improve her balance on December 17, 2020. R. at 6177. She reported that her tremors started 4 to 6 years earlier and that she had it somewhat under control with circuit training and Pilates classes. Id. Her strength in her knees and hips was 3+ to 4+ out of 5. R. at 6141. During her January 27, 2021, physical therapy appointment, she was tired and fatigued and was recovering from COVID-19. R. at 6149. She continued physical therapy in February, March, April, and May 2021. R. at 6097-6148; R. at 6670-6698. On May 6, 2021, she reported that she has not been feeling as tired lately. R. at 6670. It was noted that she had shown a 5 point improvement in the Berg Balance scale since her initial evaluation. R. at 6672. Orders for physical therapy were extended to July 2, 2021. R. at 6673.
During her May 10, 2021, appointment with Dr. Stavros, Ms. Vorhoff reported she was tired from helping a friend's mother who had been in the hospital. R. at 6669. She was getting paid to coordinate caregivers. Id. She reported she was back to swimming two times a week. Id. It was noted that she seemed to be doing fine but she needed to get out more and improve her stamina for being busy. Id.
At her May 25, 2021, appointment with Dr. Stavros, she reported that she found her job of overseeing caregivers exhausting. R. at 6666.
Ms. Vorhoff presented for a yearly preventative healthcare visit with Dr. Braaten on June 3, 2021. R. at 6069. She reported that she continued to swim for exercise and was swimming 3 miles. R. at 6069. She reported gaining eight pounds after suffering the gastrointestinal issues in January. Id. She reported she had been normal for a few days and then had lots of diarrhea for several days, sometimes wearing a diaper to bed due to diarrhea. R. at 6070. Her daughter was having similar symptoms. Id. She reported helping to care for a neighbor with dementia and a perforated ulcer whose children live out of town. R. at 6069.
She met with Dr. Stavros on July 1, 2021, and reported she was exhausted with arranging sitters for the elderly woman and running errands for her. R. at 6661. She reported that “this is why I can't work.” Id. She had convinced the family to hire an agency to provide the care and Ms. Vorhoff would just take the woman to doctor's appointments and grocery shop for her. Id.
She met with Dr. Desselle on July 12, 2021, and reported she was pleased to be helping less with caring for the elderly woman. R. at 6658. But she was still feeling exhausted. Id. The elderly woman had become uncooperative and abusive. Id. Ms. Vorhoff reported that she was not sleeping well. Id. Dr. Desselle determined her progress toward treatment goals was limited. R. at 6659. On examination her mood and affect were dysphoric, her thought process was logical, and her associates were intact. R. at 6660. Dr. Desselle noted that her problems were adequately but not ideally controlled. Id. He diagnosed Bipolar II disorder, generalized anxiety disorder, and borderline personality disorder. Id. She was continued on her existing medications. Id.
She met with Dr. Stavros on September 2 and 23, 2021, and treated with Dr. Desselle on September 9, 2021. R. at 6648-6653. On October 1, 2021, she was experiencing a manic episode. R. at 6647. She talked to Dr. Stavros and reported her heart was racing, she could not sleep, she was spending money she does not have, and she was about to quit her job. Id. Dr. Stavros sent a message to Dr. Desselle reporting that Ms. Vorhoff needed help with medication. Id. He followed up with Ms. Vorhoff by phone on October 4, 2021. Id. She reported taking extra doses of buspirone and Xanax and reported that she is now improved. Id.
She followed up with Dr. Stavros on October 14, 2021. R. at 6646. She reported she was convinced she was manic two weeks earlier and that she could not slow down until she eventually made the plan to quit her job. Id.
She treated with Dr. Desselle on December 15, 2021. R. at 6636. She reported her mood was fine. Id. Her affect was blunted R. at 6637. She was looking forward to family coming to visit the following week. R. at 6636. Dr. Desselle restarted her buspirone and continued Geodon, Wellbutrin, Lamictal, Trazadone, and Xanax. R. at 6638.
On January 5, 2022, Ms. Vorhoff presented at the emergency room with a headache that started with blurry vision. R. at 6004. A CT scan was performed and was unremarkable. Id. She was stable upon discharge and ordered to follow up with neurology. Id.
When Ms. Vorhoff met with Dr. Stavros on January 13, 2022, she reported she was very frustrated with her daughter who was not doing the essays and things she needed to do to get into a good college. R. at 6627.
She followed up with Dr. Desselle on January 24, 2022. R. at 6624. She reported she was “okay.” R. at 6625. It was noted that her medications were controlling her anxiety. Id. She was having some trouble falling asleep and admitted to some worry. Id. She reported being apathetic about life and that getting out takes effort. Id. Her speech was slow with latency of response and monotone. R. at 6636. Her affect was blunted. Id. Dr. Desselle noted that her problems were adequately but not ideally controlled. Id. Her medications were continued. Id.
On February 19, 2022, she presented at the emergency room after a fall from a ladder while intoxicated. R. at 6616. X-rays revealed significant osteopenia suggestive of inflammatory arthritis, but no evidence of a fracture. R. at 6621. She reported continuing pain in her right shoulder, elbow, and thumb. R. at 6608. She attended physical therapy for right arm pain from March to June 2022. R. at 5900-5961. She reported swimming 800 meters to a mile. R. at 5962; 5915, 5955.
At her annual exam with Dr. Braaten on July 6, 2022, Ms. Vorhoff was alert and oriented and had normal thought content and judgment. R. at 5892-93.
She followed up with Dr. Staisch on July 18, 2022, for her tremor. R. at 6556. She reported issues with speech and writing. R. at 6653. She had continued right foot jerking and hand tremors, but that the propranolol helped her “quite a lot.” R. at 6556. Examination revealed facial hypomimia, jerky dystonic tremor, some left neck restriction, and mild ataxia. R. at 6562. Dr. Staisch suggested referral to neuropsychology to screen memory for clues of a neurodegenerative disease versus drug induced dystonia. R. at 6563.
On July 22, 2022, Dr. Desselle reduced her Geodon prescription to see if her tremor improved. R. at 6555. Her other medications were continued. Id.
At her August 29, 2022, follow up with Dr. Desselle, she reported she was unsure if the reduced Geodon made a difference with her tremor. R. at 6545. She reported she was tired after driving back from Vermont and bringing her daughter to college. Id. She was not sleeping well and endorsed anxiety about her daughter. Id. Her mood and affect were anxious, appropriate, and slightly constricted. R. at 6546. She met with Dr. Stavros the same day. R. at 6547.
In mid-August 2022, Dr. Desselle and Dr. Stavros completed Mental Residual Functional Capacity Questionnaires. R. at 6531-38. Dr. Stavros opined that Ms. Vorhoff's ability to accept instruction from supervisors and work in coordination with others was moderately impaired. R. at 6531-32. She opined that Ms. Vorhoff's ability to respond appropriately to co-workers was markedly impaired and her ability to relate to the general public was moderately impaired. R. at 6532. She estimated that Ms. Vorhoff's ability to respond appropriately to changes in the work setting and here ability to work in cooperation with or proximity to others without being distracted by them were markedly impaired. R. at 6532-33. Dr. Stavros noted that Ms. Vorhoff becomes overly obsessed with tasks and puts enormous pressure on herself and that when there is additional outside stress she becomes unable to function. R. at 6533.
In contrast, Dr. Desselle opined that Ms. Vorhoff's ability to respond appropriately to coworkers and to accept instruction from supervisors was only mildly impaired. R. at 6535-36. He opined that she had no impairment in ability to relate to the general public or to work in cooperation with or proximity to others without being distracted by them. R. at 6536. He opined that her ability to respond appropriately to changes in the work setting were only mildly impaired. R. at 6537. Nonetheless, he opined that Ms. Vorhoff was at risk of decompensation when under stress due to anxiety and that her ability to consistently attend work and conform her affect and behavior to the requirements of a workplace was limited. R. at 6538.
Decision of the Administrative Law Judge
The ALJ determined that the comparison point decision (“CPD”) was the May 11, 2012, decision finding Ms. Vorhoff disabled. The ALJ found that at the time of the CPD, Ms. Vorhoff had the following medically determinable impairments: bipolar disorder, with manic and depressive; post-traumatic stress disorder; borderline personality disorder, and attention deficit disorder. The bipolar disorder was found to meet section 12.04A3 and B2,3 as it was written at the time of the CPD.
The ALJ then followed the eight-step evaluation process provided in the regulations for determining whether a claimant continues to be disabled. 20 C.F.R. § 404.1594. At Step 1, the ALJ found that through the date of his decision, Ms. Vorhoff had not engaged in substantial gainful activity. The ALJ found that Ms. Vorhoff had not developed any additional impairments after the CPD and through the date of the ALJ's decision. Thus, Ms. Vorhoff continued to have the same impairments that she had at the time of the CPD.
At Step 2, the ALJ determined that since February 3, 2016, Ms. Vorhoff has not had an impairment or combination of impairments that meet or medically equal the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ considered whether Ms. Vorhoff met the criteria of Listing 12.04 as written at the time of the CPD as well as the criteria of Listing 12.04 as amended an in effect at the time of the ALJ's decision.
At Step 3, the ALJ found that medical improvement had occurred on February 3, 2016. And at Step 4, the ALJ found that the medical improvement was related to the ability to work because by that date, Ms. Vorhoff no longer had an impairment or combination of impairments that met or medically equalled the same listing that was met at the time of the CPD. Based on this finding, the ALJ proceeded to Step 6.
The ALJ found that since February 3, 2016, Ms. Vorhoff has continued to have a severe impairment or combination of impairments. At Step 7, the ALJ determined that since February 6, 2016, Ms. Vorhoff has the residual functional capacity to perform a full range of work at all exertional levels but with the following non-exertional limitations: can understand, remember, and carryout simple, routine tasks; use of judgment is limited to work-related decisions of the same intellectual capacity as ability for instructions; frequent interaction with supervisors and coworkers; occasional or superficial/incidental interaction with the general public; dealing with changes in work setting that include a consistent work location, schedule, and setting; a low to moderate stress level, defined as a non-confrontational environment. Of relevance to the present appeal, the ALJ assessed three medical opinions of Dr. Stavros and three medical opinions of Dr. Desselle.
The ALJ gave little weight to Dr. Stavros' June 2018 opinion, finding that the rather extreme functional limitations were not consistent with the objective medical evidence or Ms. Vorhoff's admitted daily activities. The ALJ gave little weight to her January 2019 opinion finding that it remained inconsistent with the overall record, including the objective medical evidence and Ms. Vorhoff's daily activities. The ALJ gave partial weight to Dr. Stavros' August 2022 opinion because she opined Ms. Vorhoff was incapable of any work due to being incapable of even minimal contact with co-workers and her tendency to obsess over details, but she also assessed Ms. Vorhoff with mostly mild to moderate limitations, including moderate limitations relative to her ability to interact with supervisors and the public. The ALJ also observed that Dr. Stavros assessed Ms. Vorhoff with a GAF of 60. The ALJ noted that although GAF scores are no longer an accepted method of assessing global functioning and impairment, a GAF score of 51 to 60 was typically given to an individual with only moderate symptoms.
The ALJ gave no weight to Dr. Desselle's August 2018 opinion, finding it to be conclusory because it did not provide a functional assessment or discuss Ms. Vorhoff's symptoms, subjective assertions, or many daily activities. The ALJ gave little weight to Dr. Desselle's January 2019 opinion, finding that although he provided a history of treatment that was consistent with the record, he offered only a conclusory opinion of disability without a detailed functional assessment. The ALJ gave partial weight to Dr. Desselle's August 2022 opinion, finding that his assertion that she was incapable of any work activity due to extreme anxiety and decompensation was not consistent with the overall record. The ALJ noted that episodes of decompensation from 2007 through 2010 are not sufficient to support an inability to sustain work during the current evaluation period. The ALJ cited examples of Ms. Vorhoff's daily activities, including taking vacations, attending parades, exercising, and working as a caregiver, and observed that Dr. Desselle had not discussed Ms. Vorhoff's ability to manage such a full schedule. The ALJ also observed that Dr. Desselle had not adjusted Ms. Vorhoff's medication for years, which the ALJ found inconsistent with his assertions that she would decompensate with any attempt to work. Moreover, the ALJ found that Dr. Desselle's functional assessments were largely consistent with the ALJ's determination that Ms. Vorhoff has only mild to moderate functional limitations.
At Step 8, the ALJ found that considering Ms. Vorhoff's age, education, work experience, and residual functional capacity since February 3, 2016, Ms. Vorhoff has been able to perform a significant number of jobs in the national economy. In so finding, the ALJ relied on the testimony of the vocational expert.
The ALJ then concluded that Ms. Vorhoff's disability ended on February 3, 2016, and that Ms. Vorhoff has not become disabled again since that date.
Statement of Issues on Appeal
Issue No. 1. Did the ALJ err in finding that Ms. Vorhoff's condition does not meet or medically equal the criteria of Listing 12.04(C)?
Issue No. 2. Did the ALJ err in assessing the opinions of Ms. Vorhoff's treating and evaluating physicians?
Analysis
I. Applicable Law
a. Termination of Benefits under the Act
A person is considered disabled under the Act if she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Once an individual has been found disabled under the Act, the individuals' disability benefits can be terminated if substantial evidence demonstrates that “(A) there has been any medical improvement in the individual's impairment or combination of impairments (other than medical improvement which is not related to the individual's ability to work), and (B) the individual is now able to engage in substantial gainful activity.” Griego v. Sullivan, 940 F.2d 942, 943-44 (5th Cir. 1991) (quoting 42 U.S.C. § 423(f)). According to the applicable regulations, “[m]edical improvement is any decrease in the medical severity of [the claimant's] impairment(s) which was present at the time of the most recent favorable medical decision that [the claimant was] disabled or continued to be disabled.” 20 C.F.R. § 404.1594 (b)(1). A finding that medical severity has decreased “must be based on improvement in the symptoms, signs, and/or laboratory findings associated with [the claimant's] impairment(s).” Id. A decrease in medical severity is “related to the individual's ability to work” when there has also been an increase in the claimant's “functional capacity to do basic work activities.” Id. § 404.1594 (b)(3).
The second part of the evaluation is whether the claimant is able to engage in substantial gainful activity, which is similar to the standard governing initial determinations except “that the ultimate burden of proof lies with the Secretary in termination proceedings.” Griego, 940 F.2d at 944. “The basis for [the] presumption [of continuing disability] is that a prior determination of disability is binding on all parties to the hearing and has a res judicata effect as to that record.” Gill v. Heckler, 740 F.2d 396, 397 (5th Cir. 1984). Substantial gainful activity is “work activity involving significant physical or mental abilities for pay or profit.” Joseph v. Astrue, 231 Fed.Appx. 327, 330 (5th Cir. 2007) (quoting Newton v. Apfel, 209 F.3d 448, 452 (5th Cir.2000)). “The ability to engage in substantial gainful activity is determined through an ‘objective assessment of [the] functional capacity to do basic work activities' and a consideration of vocational factors.” Id. (quoting 20 C.F.R. § 404.1594(b)(5)).
b. Standard of Review
The function of this court on judicial review is limited to determining whether there is substantial evidence in the record to support the final decision of the Commissioner as trier of fact and whether the Commissioner applied the appropriate legal standards in evaluating the evidence. Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). Substantial evidence is more than “a mere scintilla,” but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983). “It means-and means only-'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)). This court may not re-weigh the evidence, try the issues de novo, or substitute its judgment for the Commissioner's. Perez, 415 F.3d at 461.
The administrative law judge is entitled to make any finding that is supported by substantial evidence, regardless of whether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992). Despite this Court's limited function, it must scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence exists to support it. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). Any findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).
c. Evaluation of Medical Opinions
During the relevant period, the Fifth Circuit imposed the rule that “ordinarily the opinions, diagnoses, and medical evidence of a treating physician who is familiar with the claimant's injuries, treatments, and responses should be accorded considerable weight in determining disability.” Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994) (quoting Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985)). Nonetheless, the ALJ retained the sole responsibility for determining disability status and such opinions were not conclusive. Id. “Accordingly, when good cause is shown, less weight, little weight, or even no weight may be given to the physician's testimony.” Id. The Fifth Circuit has recognized exceptions such as “disregarding statements that are brief and conclusory, not supported by medically acceptable clinical laboratory diagnostic techniques, or otherwise unsupported by the evidence.” Id.
This is no longer the standard because the regulations were amended, effective as of March 27, 2017. The parties agree that the standard discussed herein applies to Ms. Vorhoff's appeal. See HALLEX § I-5-3-30.IV.E(1) (explaining that if the initial request for review of a disability cessation determination was before March 27, 2017, the prior rules apply); see also Jones v. Comm'r of Soc. Sec. Admin., No. 2:20-CV-01055, 2022 WL 3509035, at *8 (W.D. La. July 27, 2022), report and recommendation adopted, No. 2:20-CV-01055, 2022 WL 3448676 (W.D. La. Aug. 17, 2022).
In Newton v. Apfel, the Fifth Circuit required that “absent reliable medical evidence from a treating or examining physician controverting the claimant's treating specialist, 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).” 209 F.3d 448, 453 (5th Cir. 2000). Those factors are as follows:
(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.Id. at 456. The Fifth Circuit has clarified, though, that this analysis is not required where there is “reliable medical evidence from a treating or examining physician controverting the claimant's treating specialist.” Qualls v. Astrue, 339 Fed.Appx. 461, 466 (5th Cir. 2009); see Heck v. Colvin, 674 Fed.Appx. 411, 415 (5th Cir. 2017) (holding that the ALJ did not err in failing to consider the regulatory factors where the ALJ found that the treating physician's questionnaire responses “were inconsistent with even his own medical records and that finding is supported by substantial evidence”).
In Newton, the Fifth Circuit also required that “if the ALJ determines that the treating physician's records are inconclusive or otherwise inadequate to receive controlling weight, absent other medical opinion evidence based on personal examination or treatment of the claimant, the ALJ must seek clarification or additional evidence from the treating physician in accordance with 20 C.F.R. § 404.1512(e).” 209 F.3d at 453. The cited subsection (e) requiring the agency to recontact the medical source to resolve inconsistencies or insufficiencies in the evidence provided by that medical source was no longer in effect at the time Ms. Vorhoff's disability benefits were terminated in 2016 or thereafter.
The cited regulation in effect at the time of the Newton decision in 2009 provided “[w]hen the evidence we receive from your treating physician or psychologist or other medical source is inadequate for us to determine whether you are disabled, we will need additional information to reach a determination or a decision.” 20 C.F.R. § 404.1512(e) (eff. Aug. 1, 2006). The regulation also provided that the medical source would be contacted to determine if additional information was readily available and that “We will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques.” Id. This entire subsection was deleted in 2012. 77 FR 10651-01 (Feb. 23, 2012). In the summary of the final rule, the agency explained “We are modifying the requirement to recontact your medical source(s) first when we need to resolve an inconsistency or insufficiency in the evidence he or she provided. Depending on the nature of the inconsistency or insufficiency, there may be other, more appropriate sources from whom we could obtain the information we need. By giving adjudicators more flexibility in determining how best to obtain this information, we will be able to make a determination or decision on disability claims more quickly and efficiently in certain situations. Eventually, our need to recontact your medical source(s) in many situations will be significantly reduced as a result of our efforts to improve the evidence collection process through the increased use of Health Information Technology (HIT).” Id.
II. Plaintiff's Appeal .
Issue No. 1. Did the ALJ err in finding that Ms. Vorhoff's condition does not meet or medically equal the criteria of Listing 12.04(C)?
a. Parties' Arguments
Ms. Vorhoff argues that her condition meets the criteria of Social Security Listing 12.04(C) as it was written at the time of the ALJ's decision. That subsection provides the following criteria:
Your mental disorder in this listing category is “serious and persistent;” that is, you have a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both:
1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental disorder (see 12.00G2b); and
2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life (see 12.00G2c).20 C.F.R. Pt. 404, Subpt. P, App.1, 12.04(C) (Rev. Apr. 1, 2022). The regulations further describe “marginal adjustment” as meaning that the person's “adaptation to the requirements of daily life is fragile.” Id. at 12.00(G)(2)(c). The regulations explain that:
We will consider that you have achieved only marginal adjustment when the evidence shows that changes or increased demands have led to exacerbation of your symptoms and signs and to deterioration in your functioning; for example, you have become unable to function outside of your home or a more restrictive setting, without substantial psychosocial supports. Such deterioration may have necessitated a significant change in medication or other treatment.Id.
Ms. Vorhoff argues that the record shows that she has received consistent, specialized treatment since the cessation of benefits date of February 2016, including inpatient hospitalization, partial hospitalization, and intensive outpatient programs, as well as significant medical management consisting of multiple psychiatric medications. Additionally, she points out that with the exception of a brief interruption due to insurance issues, she regularly participated in ongoing psychotherapy with Dr. Stavros. She submits that her condition therefore meets the first criteria of Listing 12.04(C). She argues further that the evidence shows that despite extensive treatment and interventions, she made only marginal adjustment. She points out that her treating specialists repeatedly affirmed that her condition is not ideally controlled. And she submits that her need for inpatient and repeated partial hospitalization intervention demonstrates periods of decompensation. She cites her hospitalization in February 2016, her treatment in the Behavioral Medicine Unit in March 2016 and September 2018, and her intensive outpatient treatment in March 2020. Additionally, as argued below, she submits that the ALJ erred in failing to give controlling weight to the opinions of Dr. Stavros and Dr. Desselle.
In response, the Commissioner first cites the criteria of Listing 12.04 as in effect at the time of the CPD in 2012 and at the time of the February 2, 2016, state agency decision terminating benefits. This earlier version of Listing 12.04 subsection C provides:
Without citation to authority, the Commissioner says that this version of 12.04 is applicable to cases “decided prior to January 17, 2017, such as this case.” As noted above, the ALJ considered both versions of 12.04.
The Commissioner submits that both subsection A and C must be satisfied. Although that is true for the version of 12.04 in effect at the time of the ALJ's decision, the earlier version cited by the Commissioner provides that the required level of severity is met “when the requirements in both A and B are satisfied or when the requirements in C are satisfied.”
Medically documented history of a chronic affective disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or
3. Current history of 1 or more years' inability to function outside highly supportive living arrangement, with an indication of continued need for such arrangement.20 C.F.R. Pt. 404, Subpt. P, App.1, 12.04(C) (Rev. Apr. 1, 2016). The Commissioner argues that Ms. Vorhoff has not shown that she meets the required criteria. He points out that she last attended treatment at the Center for Adult Behavioral Health on May 10, 2012. She did not treat again until three years later, after the SSA determined that her disability had ended. Moreover, the Commissioner submits that although Ms. Vorhoff reported suicidal thoughts when she was admitted in late February 2016, she did not display any evidence of suicidal or parasuicidal behavior during her stay. He adds that upon discharge on March 2, 2016, her affect was bright, and she was future oriented. He argues that her hospitalization after not pursuing treatment for three years appears to be an attempt to secure support for her claim for disability benefits.
The Commissioner acknowledges Ms. Vorhoff's participation in the outpatient treatment program after discharge in March 2016, but submits that her mental status examination was within normal limits and showed no abnormalities. He points out that in March 2016 she attended a play with her daughter and reported that she returned to see it again and had enjoyed it a great deal. The Commissioner acknowledges that she sought voluntary admission to the same program for treatment of anxiety in September 2018, but points out that her mental status examination was intact and showed no evidence of abnormalities. Further, he notes that she successfully completed the program and that her mental status examination was within normal limits upon discharge. As to the intensive outpatient program in March 2020, the Commissioner points out there is no record of such treatment. Indeed, the record cited by Ms. Vorhoff is an unrelated checkup where she reported to Dr. Braaten that she was participating in an intensive outpatient program. In a contemporaneous visit to Dr. Desselle, she stated that it was not an intensive outpatient program at all.
The Commissioner further argues that the ALJ considered Ms. Vorhoff's participation in a wide range of daily activities like a trip to Disney in January 2015, attending Mardi Gras in March 2015, and participating in physical activity like swimming, circuit training and Pilates. The Commissioner points out that the ALJ considered that Ms. Vorhoff had been capable of traveling by flying or driving, attending plays and school events for her daughter, and socializing with friends, dating, and attending family gatherings. The Commissioner argues that the ability to do these things is inconsistent with an individual whose functioning is as limited as she claims.
The Commissioner insists that Ms. Vorhoff has failed to establish that she met the paragraph C criteria in effect prior to January 17, 2017. He argues further that the ALJ properly found that Ms. Vorhoff's condition did not meet the criteria of paragraph C in effect at the time of the ALJ's decision.
b. Analysis
The parties cite different versions of Listing 12.04(C). Like the ALJ, the Court considers both. To meet the criteria of 12.04(C) in effect at the time of the ALJ's decision, Ms. Vorhoff's condition must be “serious and persistent.” As noted above, to meet this standard there must be evidence of marginal adjustment. 20 C.F.R. Pt. 404, Subpt. P, App.1, 12.04(C) (Rev. Apr. 1, 2022). This means that “changes or increased demands have led to exacerbation of your symptoms and signs and to deterioration in your functioning” such as when a person can no longer function outside of their home or in a more restrictive setting without substantial psychosocial supports. Id.
The ALJ found the record did not establish that Ms. Vorhoff has only “marginal adjustment.” The ALJ acknowledged her alleged episodes of decompensation and claims that even trivial issues cause her to feel stressed, panicked, and overwhelmed. But the ALJ found that her subjective assertions were not consistent with the record, which the ALJ found show typically unremarkable mental status on examination, without signs of anxiety or other symptoms, and show ongoing daily activities not suggestive of only a minimal capacity to adapt to changes in environment. The ALJ observed that Ms. Vorhoff was able to function without any mental health treatment from 2013 to February 2016 and that she was maintained with outpatient treatment and oral medications thereafter.
The Court finds the ALJ's determination is not supported by substantial evidence. During the relevant period, Ms. Vorhoff was hospitalized for a week in 2016 with suicidal ideation. Although she stabilized somewhat on medication, she required another two weeks of intensive outpatient treatment after that. Although she was no longer suicidal, she remained depressed during that inpatient treatment. After that, she continued with regular psychotherapy treatment as well as psychiatric medication. Even so, the record shows that she continued to experience manic and depressive periods, supporting her bipolar diagnosis. Importantly, her manic and depressive episodes resulted in several instances of decompensation. She suffered manic episodes in September 2016 as she assisted her family with flood cleanup and became overwhelmed with feelings of constant anxiety and pending panic. R. at 1242. She was sleeping only three to five hours a night. Id. Her Xanax was increased. Id. She was started on Geodon for mania. R. at 1213. In February 2017, she again reported she was not sleeping, that she had married a Canadian in hopes of leaving the country, and that she was cleaning excessively. R. at 1143. Dr. Desselle increased her Geodon dosage. R. at 1144.
By April 2017 she was in a depressive episode, reporting to her psychotherapist that she was beginning to feel cutting would be a good outlet for her emotions and that she wanted to return to the Behavioral Medicine Unit intensive program but there were no openings. R. at 1507. She remained depressed into May 2017, staying in bed a lot, feeling sad and unmotivated, and not eating much. R. at 1519, 1525, 1541. She was readmitted to the Behavioral Medicine Unit in September 2018 with complaints of anxiety, feeling stressed and panicked with her heart racing, clammy hands, and feeling overwhelmed. R. at 4271. Although she successfully completed the program, the Court notes that doing so does not negate the fact that she had to participate in the program for eleven days.
Although there are no firsthand records of Ms. Vorhoff's March 2020 intensive treatment, the record does reflect a need for increased therapy at that time. She reported to Dr. Stavros that she was feeling highly anxious and depressed in early March 2020, reporting that she only left the house to exercise. R. at 5833. When she returned to Dr. Stavros in June 2020, she explained she had been in an intensive outpatient program in the interim. Her insurance had not allowed her to see Dr. Stavros while participating in the program. Then in July 2020, she reported to Dr. Stavros that she was paralyzed by depression. R. at 5813.
Throughout the entire relevant period, her treating psychiatrist repeatedly noted that her condition was not ideally controlled. R. at 1143, 2206, 6600, 6636. Moreover, and as discussed further below, the opinions of her treating providers as to her functional limitations are consistent with the treatment notes and Ms. Vorhoff's alleged impairments.
The medical evidence shows that Ms. Vorhoff suffers from a serious and persistent mental health disorder with periods of depression, mania, and anxiety that require, at times, medication changes and hospitalization or intensive therapy. Although she also experienced times where she was able to function normally, the ALJ has improperly relied on instances of engaging in normal activities of daily living. These examples of functioning occur in between times of deteriorated capacity and are not sufficient to support finding that she has not demonstrated marginal adjustment. To the contrary, the record shows that when faced with stressors like flood cleanup, her daughter leaving for college, issues with child support payments, and assisting with care of an elderly woman, Ms. Vorhoff became unable to function normally and required changes in medication, increases in psychotherapy, or hospitalization. The Court finds that the only reasonable conclusion is that Ms. Vorhoff's condition is serious and persistent and that it meets the criteria of Listing 12.04 as in effect at the time of the ALJ's decision. The ALJ's conclusion to the contrary is not supported by substantial evidence and must be reversed.
Neither party addresses the applicability of the Paragraph A Criteria in effect at the time of the ALJ's decision. Nor did the ALJ make any finding as to whether the criteria has been satisfied, focusing instead on the Paragraph B and Paragraph C criteria.
As noted above, to meet the criteria of Listing 12.04(C) in effect at the time of the CPD, there must be evidence of repeated episodes of extended periods of decompensation or a residual disease process that results in such marginal adjustment that even a minimal increase in mental demands or change in environment would be predicted to cause decompensation. The regulations explain that an episode of decompensation is an exacerbation or temporary increase “in symptoms or signs accompanied by a loss of adaptive functioning, as manifested by difficulties in performing activities of daily living, maintaining social relationships, or maintaining concentration, persistence or pace.” 20 C.F.R. Pt. 505, Subpt P, App. 1, 12.00(C)(4) (eff. Apr. 1, 2016). “Episodes of decompensation may be inferred from medical records showing significant alteration in medication; or documentation of the need for more structured psychological support system (e.g., hospitalizations, placement in a halfway house, or a highly structured and directing household) . . . . .” Id. Repeated episodes of decompensation, each of extended duration means three episodes in one year or once every four months, each lasting approximately two weeks. Id.
Ms. Vorhoff does not contend that her condition met this standard. And, the Court agrees with the Commissioner that the record does not support finding repeated episodes of decompensation as that phrase is defined by the regulations.
Nonetheless, the Court is not convinced that failing to meet this standard precludes the disability finding based on the satisfaction of Listing 12.04 as discussed above. The Commissioner submits, without citation to legal authority, that the older listing is applicable to cases “decided” prior to January 17, 2017. Although the state agency decision occurred before that time, the decision under review is that of the ALJ, which occurred after that date. In enacting the revised listings, the Commissioner announced that he would begin applying the new rules to new applications filed on or after January 17, 2017, and to applications pending at that time. Revised Medical Criteria for Evaluating Mental Disorders, 81 FR 66138-01. He explained further that “[t]his means that we will use these final rules on and after their effective date, in any case in which we make a determination or decision.” Id. This indicates that the ALJ applies the Listing in effect at the time of the ALJ's decision. Additionally, the Commissioner indicated that he expected “Federal courts will review our final decisions using the rules that were in effect at the time we issued the decisions.” Id. If a case is remanded for further administrative proceedings by the Court, the Commissioner will apply the new rule “to the entire period at issue in the decision we make after the court's remand.” Id. The Court finds, therefore, that the listing in effect at the time of the ALJ's decision is the operative one here.
In any event, the Court finds that reversal is also appropriate for the reasons discussed below.
Issue No. 2. Did the ALJ err in assessing the opinions of Ms. Vorhoff's treating and evaluating physicians?
a. Parties' Arguments
Ms. Vorhoff submits that Dr. Stavros and Dr. Desselle limited her to more restricted residual functional capacity than the ALJ. She argues that the ALJ erred in failing to adopt their assessments. She submits that the ALJ failed to weigh the required factors such as the examining relationship, the treatment relationship, the length and frequency of that relationship, and whether or not the treating doctor is a specialist. Instead, she argues, the ALJ merely picked various portions of the record to undermine the Stavros and Desselle opinions, even when that same evidence supported their opinions. For example, she says the ALJ repeatedly mentioned Ms. Vorhoff's work attempt and her attempt to assist her family during flood clean up as evidence that she is less limited than her doctors assessed. However, she argues that the record shows that these activities were overwhelming to her and required additional therapeutic support. She insists that picking and choosing selected medical notes or the fact that she attended a parade or her daughter's functions is an illegitimate method of analysis. She also submits that the ALJ improperly cites to activities during time periods not appropriately under consideration, such as work performed between 2007 and 2010, or lack of treatment before 2016. Finally, she argues that under Newton, the ALJ was obligated to seek clarification or additional evidence from Drs. Stavros and Desselle before rejecting their opinions. She argues that the ALJ's findings that her condition does not meet or equal a Listing and his RFC findings are not supported by substantial evidence because the ALJ failed to provide controlling weight to the treating physician opinions. She requests that judgment be entered in her favor under sentence four of 42 U.S.C. §405(g).
The Commissioner argues that the ALJ properly considered the opinion evidence in accordance with the applicable requirements. He submits that the ALJ discussed the evidence reviewed and explained the weight given to the opinions. He insists that the ALJ is permitted to reject a physician's opinion when the evidence supports a contrary conclusion. He argues that here, there is first-hand evidence that contradicts the treating physician's opinions and that the ALJ was therefore not required to apply the Newton factors. He argues that as to the Stavros opinion, the ALJ properly gave it little weight because the extreme limitations were not consistent with objective medical findings, such as Ms. Vorhoff's GAF score of 65, or with plaintiff's reported daily activities. As to the Desselle opinion, the Commissioner submits that his August 2018 opinion did not assess any work-related functional limitations and argues that the ALJ properly gave this conclusory opinion no weight. The Commissioner argues further that the record as a whole does not support either the Stavros or Desselle opinions given the relatively normal objective medical findings and Ms. Vorhoff's reported daily activities.
As to Ms. Vorhoff's argument that the ALJ should have recontacted either Dr. Stavros or Dr. Desselle, the Commissioner argues that the decision to do so is at the ALJ's discretion, and only where there is insufficient information to determine whether a claimant is disabled. Here, the Commissioner points out that there is no indication the ALJ found the evidence inadequate. He insists that within over 6,000 pages of medical records there was more than sufficient evidence for the ALJ to make a disability determination.
b. Analysis
The Court finds the ALJ erred in analyzing the majority of the medical opinions. In 2018, 2019, and 2022, Dr. Stavros opined to functional limitations more severe than those found by the ALJ in the RFC assessment, including that she would be unable to respond appropriately to changes in the work setting for more than 15% of the workday, would be off task for more than 30% of an eight-hour work day, and would be absent 5 or more days per month. R. at 2304. Dr. Stavros also opined that Ms. Vorhoff is easily overwhelmed and crippled by anxiety, that she would become highly anxious and combative and would avoid work, that she is only able to do things in small increments and that she has only been able to create a stable life by adhering to a rigid schedule with intermittent activities. R. at 4188-89. She opined that when faced with additional stress, Ms. Vorhoff becomes unable to function. R. at 6533. The ALJ discounted each of the Stavros opinions to little or partial weight finding them to be inconsistent with the objective medical evidence as well as the evidence of Ms. Vorhoff's daily activities as well as the objective medical evidence. Dr. Desselle opined in 2022 that Ms. Vorhoff was at risk of decompensation when under stress due to anxiety and that her ability to consistently attend work was limited. R. at 6538. The ALJ gave partial weight to this opinion, finding it to be inconsistent with the overall record.
The Court finds the ALJ correctly discounted the 2018 Desselle opinion as entirely conclusory because Dr. Desselle merely opined that Ms. Vorhoff could not maintain employment, without opining as to any functional limitations or citing any medical evidence at all. Similarly, the ALJ gave little weight to the 2019 Desselle opinion that Ms. Vorhoff was unlikely to be able to attend a job consistently, finding it to be conclusory. The Court again finds no error. Dr. Desselle summarized his history of treatment of Ms. Vorhoff and listed her diagnoses, but he did not opine as to any functional limitations. He stated merely that she was unlikely to be able to attend a job consistently.
Ms. Vorhoff does not address Dr. Desselle's opinions about her functional ability to respond to changes in the workplace, relate to the public, and respond appropriately to supervisors. These are not inconsistent with Dr. Desselle's opinion about the risk of decompensation which concerns her long term, rather than day to day, functional abilities.
Ms. Vorhoff complains that the ALJ did not follow the factors required by Newton before discounting the opinions. Indeed, there is no dispute that the ALJ failed to do so. The Commissioner contends the ALJ was not required to analyze the factors. However, this exception is only applicable where there is reliable medical evidence from a treating or examining physician contradicting the opinion. See Newton,209 F.3d at 453 (imposing the factor analysis requirement “absent reliable medical evidence from a treating or examining physician contradicting the claimant's treating specialist”); see also Qualls, 339 Fed.Appx. at 466 (5th Cir. 2009); Heck, 674 Fed.Appx. at 415.
Here, there is no medical evidence contradicting the opinions. The ALJ relied primarily on Ms. Vorhoff's reports of engaging in various activities of daily living, including attending parades, dating, and exercising. These reports do not amount to medical evidence of a treating or examining physician. And although activities of daily living can certainly be useful to determining a person's functional abilities, see Leggett v. Chater, 67 F.3d 558, 565 n. 12 (5th Cir. 1995), they do not negate the ALJ's obligation to analyze the Newton factors when discounting a treating physician's opinion under the rules applicable to this appeal. While the ALJ also concluded that the opinions were inconsistent with the “objective medical evidence,” the only reference to any actual medical evidence is the ALJ's determination that the records did not note that Ms. Vorhoff “exhibit[ed] significant signs of anxiety or depression” and her GAF score, which the ALJ acknowledged is no longer used to assess global functioning and impairment. R. at 63, 73. As to the significant signs of anxiety or depression, as discussed above, the medical evidence of record does not support the ALJ's description. At the time of hospitalization in 2016 she was depressed and suicidal. R. at 1124. Participating in the Behavioral Medicine Unit program in 2016 she was depressed. R. at 1326. Establishing outpatient care in April 2016, she was softly crying, made poor eye contact, and had a depressed mood. R. at 1291. Meeting with Dr. Stavros and Dr. Desselle over the years she reported periods of mania and depression, as discussed above. Periods of participation in activities of daily living and occasional reports of normal mood to her primary care physician are insufficient to conclude that the medical records show no significant evidence of anxiety or depression.
Additionally, the Commissioner cites medical records purportedly showing “unremarkable” mental status examinations. The majority of the cited records are Dr. Stavros' treatment notes which do not include a mental status examination other than noting no suicidal ideation. Yet at those visits she frequently discussed issues such as depression, anxiety, not sleeping, and frustration. R. at 1185, 1194, 1195, 1200. Importantly, the nature of Ms. Vorhoff's bipolar disorder (as reflected by the criteria in the listings) is that she experiences severe manic and depressive episodes from time to time. Occasional notes of normal mood and affect are not inconsistent with the opinions of Dr. Stavros and Dr. Desselle that Ms. Vorhoff would decompensate when placed under the stress of the workplace or with opinions that she has moderate to marked limitations in ability to respond appropriately to changes in the workplace, relate to the general public, and accept instruction from supervisors. The Court finds that without reliable medical evidence of a treating physician to the contrary, the record here does not entitle the ALJ to ignore the factor analysis required by Newton.
Importantly, the ALJ's failure to analyze the factor is not a harmless error because the Court finds the ALJ's conclusion that the opinions were not entitled to controlling weight is not supported by substantial evidence. Critically, Dr. Stavros and Dr. Deselle each had a years-long treatment relationship with Ms. Vorhoff and met with Ms. Vorhoff multiple times each year-at times Dr. Stavros met with her as frequently as every other week. They are both specialists in mental health. Each of these factors, unconsidered by the ALJ, weighs in favor of granting their opinions controlling weight under the applicable standard. Importantly, as discussed above, the record reflects periodic instances of mania and depression that seriously impacted Ms. Vorhoff's ability to function. She required periods of intensive therapy. She is on numerous psychiatric medications. The only reasonable interpretation is that the medical evidence is consistent with the treating physician opinions. The opinions of Dr. Stavros and Dr. Desselle, especially concerning the likelihood of decompensation, are entitled to controlling weight under the standard applicable to this appeal. The decision of the ALJ must be reversed. The Commissioner, and not Ms. Vorhoff, bears the burden of proving medical improvement and ability to engage in substantial gainful activity. Griego, 940 F.2d at 944. And the Court finds the Commissioner has failed to meet that burden by improperly discounting the treating physician medical opinions and relying on an RFC that did not account for episodes of decompensation. Accordingly, further administrative proceedings are not required and Ms. Vorhoff is entitled to judgment reversing the cessation finding, leaving her benefits in place.
RECOMMENDATION
For the foregoing reasons, the undersigned finds that (1) the ALJ erred in failing to find that Ms. Vorhoff's condition met the criteria of Listing 12.04 as in effect at the time of the ALJ's decision and (2) the ALJ erred in failing to give conclusive weight to the opinions of the claimant's treating physicians and that the Commissioner therefore failed to meet his burden to show that Ms. Vorhoff has experienced medical improvement and is now able to engage in substantial gainful activity. Accordingly, IT IS RECOMMENDED that the decision of the Commissioner be reversed and that DIB be awarded to Ms. Vorhoff as of the date benefits were terminated.
OBJECTIONS
A party's failure to file written objections to the proposed findings, conclusions and recommendations in a magistrate judge's report and recommendation within fourteen (14) calendar days after being served with a copy shall bar that 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, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5thCir. 1996) (en banc).