Opinion
No. 99 C 6235
December 13, 2000
MEMORANDUM OPINION AND ORDER
Norman West seeks review of the decision to deny him disability insurance benefits. Plaintiff brings this cause of action asking the court to reverse or remand the decision of the Social Security Commissioner. Kenneth S. Apfel, Commissioner of the Social Security Administration, filed a Fed.R.Civ.P. 56(c) motion for summary judgment in response to plaintiff's claim. For the following reasons, plaintiffs motion for remand is granted, plaintiffs motion for summary judgment is denied and defendant's motion for summary judgment is denied. We remand this case to the Commissioner of the Social Security Administration to recontact the treating psychologist in order to clarify inconsistencies in her report, to contact the individual who treated the plaintiff immediately before the treating psychologist, and, if necessary, to determine the onset date of plaintiffs disability with the assistance of a medical advisor.
BACKGROUND
Plaintiff filed his concurrent claims for Social Security Disability Benefits and Supplemental Security Income Benefits on April 6, 1994, with an alleged onset date of September 14, 1991. His applications were denied by the Social Security Administration both initially and on reconsideration. Mr. West filed a Request for Hearing on November 23, 1994. A hearing was convened, after some initial delays, on September 23, 1997, before an Administrative Law Judge ("ALJ"). Plaintiff claimed that the onset date of his disability was June 6, 1996. Plaintiffs last insured date was December 31, 1996. To be entitled to Social Security Disability Benefits, a claimant must show that he was disabled on or before the date his insured status expired. 20 C.F.R. § 404.131
At the hearing, plaintiff testified that he lived with his parents and that he works parttime at a grocery store, working no more than 15 hours per week. Plaintiff testified that he is HIV positive and has oral thrush, which leaves a bad taste in his mouth. He stated that his energy level is sometimes "okay" but at other times he has no energy at all. He testified that he has problems standing for more than 5-10 minutes because he has back problems. Plaintiff further testified that he has panic attacks, which varied in frequency from no attacks in a week to three or four times a day, lasting anywhere from five to twenty minutes. He first sought treatment for the panic attacks in November of 1996. Plaintiff testified that he was "deeply depressed" and had suicidal thoughts. The depression became noticeable in approximately April of 1995.
At trial, Vocational Expert ("VE") Frank R. Mendrick considered the job possibilities for a hypothetical individual with the same age, education, and work history as plaintiff, who retained the ability to perform a simple one-to-two step light work with moderate limitations in concentration, persistence, and pace, and in social interaction. The VE testified that such an individual would be able to perform 5,700 jobs as a janitor, 13,000 jobs as a machine feeder, 15,000 jobs as an assembler, and 10,000 jobs as a band packager.
The VE testified that if all plaintiff's testimony were true, plaintiff would be unable to perform any jobs. The VE further testified that all jobs would be eliminated solely based on the plaintiff's testimony regarding no energy several days a week.
David Abramson, a medical expert, testified that although plaintiff was HIV positive, he did not have any diseases or severe infections associated with HIV. The oral thrush was not categorized as a systematic disease, but merely an opportunistic disease. Dr. Abramson stated that he was not in a position to evaluate the periods of panic attacks or the periods of depression. Dr. Abramson further testified that a HIV positive person does have the tendency to fatigue. Dr. Abramson opined that plaintiff could not perform medium level work due to his fatigue. He testified that plaintiff "could certainly do light work in sedentary work." The parties disagree about the context of that statement.
On March 25, 1998, the ALJ found that:
1. The claimant met the disability insured status requirements of the Act on June 6, 1996, the date the claimant stated he became unable to work and continued to meet them through December of 1996.
2. The claimant has not engaged in substantial gainful activity at any time relevant to this decision.
3. The medical evidence establishes that the claimant has severe impairments due to an HIV positive condition, chronic pancreatitis, a history of drug and alcohol abuse now in remission, depression/dysthymia, and an anxiety disorder, but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's allegations of inability to work were credible as of September 19, 1997.
5. From the alleged onset date until September 18, 1997, the claimant retained the residual functional capacity to perform one to two step light work which accommodates for an individual with moderate limitations in his ability to concentrate, maintain persistence and pace, and interact socially. After September 18, 1997, the above residual functional capacity is further limited so as to accommodate an individual who has no energy up to three days per week and has four to five panic attacks which last for approximately ten minutes each.
6. The claimant is unable to perform his past relevant work.
7. The claimant is a younger individual ( 20 C.F.R. § 404.1563 and 20 C.F.R. § 416.963).
8. The claimant has a high school equivalent education ( 20 C.F.R. § 404.1564 and 20 C.F.R. § 416.964).
9. The claimant does not have any acquired work skills which are transferable to the skilled or semiskilled work activities of other work ( 20 C.F.R. § 404.1568 and 20 C.F.R. § 968).
10. Based on an exertional capacity for light work and the claimant's age, education, and work experience, section 404.1569 of Regulations No. 4 and section 416.969 of Regulations No. 16 and Rule 202.20, Table No. 2, of Appendix 2, Subpart P, Regulations No. 4 would direct a conclusion of not disabled.
11. Although the claimant's additional non-exertional limitations do not allow him to perform a full range of light work, using the above-cited rule as a framework for decisionmaking, there were a significant number of jobs in the national economy which the claimant could perform, prior to September 19, 1997. Examples of such jobs are: janitor, machine feeder, assembler, and hand packager.
12. As of September 19, 1997, there are no jobs in the national economy which the claimant is capable of performing.
13. The claimant has been under a "disability," as defined in the Social Security Act, beginning September 19, 1997, under Title XVI only.
The ALJ awarded Supplemental Security income, but he denied Disability Insurance Benefits. The decision became final when the Appeals Council denied Plaintiffs request for review. Plaintiff now seeks judicial review of the ALJ's decision.
MEDICAL BACKGROUND
Plaintiff's diagnosis includes HIV, chronic pancreatitis, a history of drug and alcohol abuse, depression and an anxiety disorder.
On March 3, 1994, at St. Basil's Health Services, plaintiff reported congestion and that he had been spitting up blood and blowing blood out of his nose for about one and a half years. He reported several other conditions, including lower back pain and diarrhea. The plaintiff was referred for HIV testing and, on March 28, 1994, that test showed that West was HIV positive.
On June 3, 1994, Dr. Nelson, a psychiatrist, evaluated the plaintiff Dr. Nelson noted plaintiffs March 1994 diagnosis of HIV and his three-year history of chronically moderate depression. Plaintiff was mildly depressed throughout the interview. Dr. Nelson diagnosed Adjustment Disorder with Depressed Mood, Chronic Substance Abuse, and HIV positive status.
On June 29, 1994, Dr. Kassir examined the plaintiff at the request of the state agency. Plaintiff complained of knee and ankle stiffness in the morning, joint stiffness, and numbness in his fingers. Plaintiff had no limitation of motion in his joints. He had mild degrees of difficulty in walking on heels and squatting and rising. Dr. Kasir diagnosed HIV, chronic ethanol dependency and abuse, and illicit substance abuse.
On August 15, 1994, Dr. Uafata, a non-examining state physician, stated that Plaintiff could lift up to fifty pounds occasionally and twenty-five pounds frequently and sit or stand and walk for about six hours in an eight-hour workday.
On October 18, 1994, Dr. Koziol, a psychiatrist, evaluated plaintiff at the request of the Social Security Administration. He stated that plaintiff suffered from an Adjustment Disorder with Depressed Mood secondary to his HIV positive condition and a Personality Disorder with Anti-Social features. He diagnosed alcohol and drug dependence.
On December 12, 1994, Dr. Barnes, a non-examining state physician, stated that plaintiff could lift up to fifty pounds occasionally and twenty-five pounds frequently. He also stated that plaintiff could stand and walk for six hours or sit for about six hours in a eight hour workday.
The records from the case also contained medical reports from Cook County Hospital from 1994 through 1997. On November 14, 1994, plaintiff complained of feeling congested and being unable to smell. On August 18, 1995, plaintiff complained of headaches in the morning in the nasal and frontal sinus area. On April 25, 1996, plaintiff complained of symptoms that were consistent with chronic pancreatitis. On May 30, 1996, plaintiff complained that dry air hurt his sinuses. On November 29, 1996, plaintiff was referred to the Psychology Department for counseling concerning his anxiety attacks. On July 17, 1997, plaintiff was informed that he had thrush on the roof of his mouth. During his visits to the hospital, plaintiff reported that he felt good. Plaintiffs HIV status was stable between 1995 and April of 1997.
On April 18, 1996, Dr. James A. Runke performed an internal medicine consultative examination of plaintiff for the state agency. Plaintiff complained that he experienced twitching of his hand muscles and constant weakness during exertion. Plaintiff also complained of pain in his arms and legs. Subjective complaints were consistent with chronic fatigue, fevers, chills, night sweats and general immunosuppression.
On April 18, 1996, Dr. Purdy performed a psychiatric evaluation for the state agency. Dr. Purdy reported that patient complained of all the vegetative symptoms of depression and stated that there was a high probability that depression was present, but that the clarity of her diagnosis was complicated by ongoing alcohol abuse. Dr. Purdy diagnosed plaintiff as a person with drug abuse that was early in remission, with current chronic alcohol abuse/dependence, probable major depression, as well as probable personality disorder.
On May 14, 1996, Dr. Boyenga, a non-examining state agency medical consultant, submitted a diagnosis. Dr. Boyenga opined that the plaintiff's memory, although impaired, was sufficient for simple tasks. He stated that plaintiff retained the ability to handle unskilled work.
On May 15, 1996, Dr. Villaflor, a non-examining state agency physician, completed an assessment regarding plaintiffs physical abilities. Dr.Villaflor reported that plaintiff retained the ability to lift ten pounds occasionally, less than ten pounds frequently, the ability to stand and/or walk for a total of at least two hours in an eight hour workday, and the ability to sit for a total of about six hours in an eight hour workday. Plaintiff's environmental limitations were such that he needed to avoid concentrated exposure to extreme cold and heat, humidity, fumes, odors, dust, gases, poor ventilation and unprotected heights. Therefore, plaintiff could perform the physical requirements of sedentary work with some postural and environmental limitations.
On September 19, 1997, Dr. Luna, a psychologist, wrote a letter to plaintiff's attorney. Dr. Luna reported that she began seeing plaintiff for psychotherapy in August of 1997. She had seen him for a total of four sessions. Prior to that, Jod Taywaditep, M.A., had seen plaintiff for twenty one sessions beginning in January of 1997. Dr. Luna noted that plaintiff reported an increase in panic attacks. Plaintiff stated that he had daily panic attacks. This represented an increase from an average of three times a week. Plaintiff also reported an increase in depressive symptoms, including fatigue, anhedonia, poor concentration, impaired sleep and low self-esteem. Dr. Luna decided to refer plaintiff to a psychiatrist to assess his needs for psychotropic medication. Dr. Luna stated that plaintiffs functioning as of September 19, 1997 was at a level of forty-five on the global assessment of functioning ("GAF") scale and that his functioning over the past year was at a forty.
DISCUSSION
The Social Security Act provides for limited judicial review of the final decisions of the Commissioner. We must determine whether substantial evidence supported the findings and whether the proper legal standards were applied. 42 U.S.C. § 405 (g); Pitts v. Sullivan, 923 F.2d 561, 564 (7th Cir. 1991). Although a mere scintilla of proof will not suffice to uphold the Commissioner's findings, the standard of substantial evidence requires no more than "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 U.E.2d 842 (1971). We cannot make new factual determinations, reweigh evidence, or substitute our own judgment for that of the Commissioner. Scivally v. Sullivan, 966 F.2d 1070, 1075 (7th Cir. 1992). Since the Commissioner is in the best position to observe the demeanor of witnesses, we will not disturb the Commissioner's credibility determinations so long as they find some support in the record and are not "patently wrong." Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994).
An individual claiming disability under the Act must demonstrate that he is "disabled, or has "an inability to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423 (d)(1)(A), 1382c(a)(3)(A). The Act provides a five-step process to determine whether the claimant is disabled. 20 C.F.R. § 404. 1520(a)-(f). The five steps must be addressed in order: (1) Is the claimant presently employed? (2) Is the claimant's impairment severe? (3) Does the impairment meet or medically equal one of a list of specific impairments enumerated in the regulations? (4) Is the claimant able to perform his former occupation? (5) Is the claimant able to perform any other work? 20 C.F.R. § 404. 1520(a)-(f). A claimant has the burden of proof through step four. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). If a claimant satisfies steps one, two, and three, he will be declared disabled. Knight v. Charter, 55 F.3d 309, 313 (7th Cir. 1995). However, if the claimant satisfies only steps one and two, but not three, then he must satisfy step four. Id. Once step four is satisfied, the burden shifts to the Commissioner to establish that the claimant is capable of performing work in the national economy. Id.
The All found that as of September 19, 1997, there were no jobs in the national economy that plaintiff was capable of performing. The ALJ based his conclusion upon the opinion records of Dr. Luna, which he gave controlling weight to because he considered her opinion to be well-supported by the medical evidence and consistent with substantial evidence in the record. According to Dr. Luna's report, plaintiffs anxiety and depression had worsened as of September 17, 1997.
In her report, Dr. Luna stated she began plaintiffs psychotherapy on August 26, 1997. She met with the plaintiff for a total of four sessions. Dr. Luna also reported that plaintiff had previously seen Taywaditep for twenty-one sessions beginning on January 7, 1997. Dr. Luna reported that plaintiff had a GAF of 45 for the current year and a OAF of 40 for the past year. The lower the total number, the less the individual is able to function. For example, a global assessment of functioning of 41-50 indicates some impairment in reality testing or communication or major impairment in several areas such as work. A global assessment of functioning of 21-30 indicates an inability to function in almost all areas and behavior that is considerably influenced by delusions or hallucinations. Dr. Luna's report contains the discrepancy that plaintiff had a lower GAF than the total for the previous year. However, she also reported improvement in plaintiffs functioning over the previous year.
On April 18, 1996, Dr. Purdy, a psychiatric consultative evaluator, diagnosed plaintiff as a person with drug abuse that was early in remission, with current chronic alcohol abuse/dependence, probable major depression, as well as probable personality disorder. On November 19, 1996, plaintiff's doctor at Cook County Hospital noted that West complained of anxiety attacks. Dr. Purdy prescribed Librium and referred West to psychological counseling. Dr. Abramson, a medical expert who testified at the hearing on September 23, 1997, stated that he was not in a position to evaluate the periods of panic attacks or the periods of depression.
In light of this medical evidence, plaintiff argues that the ALJ failed to follow the dictates of Social Security Ruling 83-20 ("SSR 83-20"). In the case of a disability of nontraumatic origin, SSR 83-20 requires an inference as to the onset date of that disability, and a legitimate medical basis for that inference. SSR 83-20 provides, in pertinent part:
In some cases, it may be possible, based on the medical evidence to reasonably infer that the onset of a disabling impairment(s) occurred some time prior to the date of the first recorded medical examination, e.g., the date the claimant stopped working. How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred. SSR 83-20
These Social Security Rulings are binding on all components of the Social Security Administration. Lichter v. Bowen, 814 F.2d 430, 434 n. 5 (7th Cir. 1987).
Plaintiff argues that the ALJ should have called upon the services of a medical expert in order to determine when plaintiff's deterioration of mental functioning became disabling. When the date of onset must be inferred, SSR 83-20 states that the ALJ should seek the services of a medical advisor. Rice v. Apfel, 8 F. Supp.2d 769, 774 (1998); Lichter, 814 F.2d at 434. The ALJ must make a specific determination of when plaintiff's mental functioning deteriorated to the point of disabling the plaintiff. The ALJ stated that he gave great weight to the report from Dr. Luna. However, Dr. Luna's report contains an inconsistency concerning the global assessment of functioning. We remand this case so that the ALJ may follow the guidelines set forth in SSR 83-20, including calling on the services of a medical advisor, if necessary, to assist in making the determination of the onset date.
According to 20 C.F.R. § 404.1512 (e) the ALJ is directed either to recontact Dr. Luna to remedy the discrepancy in her report or to obtain an opinion from Taywaditep. 20 C.F.R. § 404.1512(e) provides, in pertinent part:
We will first recontact your treating physician or psychologist or other medical source to determine whether the additional information we need is readily available. 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 necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. § 404.1512 (e)
In light of the discrepancy in Dr. Luna's report and the fact that Taywaditep had seen plaintiff for twenty-one sessions, this matter should be remanded in order clarify the medical evidence surrounding the correct onset date. If Dr. Luna or Taywaditep can provide the relevant information that can help determine a specific onset date, then the services of a medical advisor may not be needed. If Dr. Luna or Taywaditep cannot provide sufficient medical expertise, then a medical advisor should be employed to assist the ALJ. If the ALJ decides to rely on Dr. Luna's report, he must clarify the discrepancy in her report.
Plaintiff argues that the ALJ failed to make a credibility determination concerning the plaintiff and that the ALJ failed to discuss the opinion of Dr. Villaflor. SSR 96-7p provides support for plaintiff's position concerning the credibility determination. SSR 96-7p provides, in pertinent part:
It is not sufficient for the adjudicator to make a single, conclusory statement that "the individual's allegations have been considered" or that "the allegations are (or are not) credible." It is also not enough for the adjudicator simply to recite the factors that are described in the regulations for evaluating symptoms. The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statement's and the reasons for that weight. SSR 96-7p
The ALJ stated that plaintiff's allegations of inability to work were credible as of September 19, 1997. The ALJ did not specifically find that plaintiff's allegations were noncredible prior to that date. However, based on the ALJ's findings, it can be inferred that the ALJ did not find plaintiff to be credible prior to September 19, 1997. In addition, the ALJ also found that from June 6, 1996, until September 18, 1997, the plaintiff retained the residual functional capacity to perform one to two step light work.
Plaintiff also claims that the ALJ failed to discuss the opinion of Dr. Villaflor. SSR 96-6p provides some support for the plaintiffs position. SSR 96-6p provides, in pertinent part:
Administrative law judges and the Appeals Council may not ignore [findings of fact by state agency medical and psychological consultants] and must explain the weight given to these opinions in their decisions. SSR 96-6p.
The ALJ cited Dr. Villaflor's opinion of in his decision. Dr. Villaflor was one of three non-examining state agency doctor's that considered the plaintiffs situation. Dr. Villaflor opined that the plaintiff could only perform sedentary work while the other doctor's opined that he could perform light work. Because the ALJ clearly considered Dr. Villaflor's opinion, we deny this portion of the plaintiffs request.
The plaintiff also alleges that the vocational expert's testimony does not meet the Commissioners burden of proof in establishing that plaintiff could perform a significant number of jobs. Deciding whether the plaintiff could perform a significant number of jobs is done in step five of the five-step analysis to determine whether a claimant is disabled. Once step four is satisfied, the burden shifts to the Commissioner to establish that the claimant is capable of performing work in the national economy. Knight, 55 F.3d at 313. The vocational expert testified during the hearing that an individual such as the plaintiff could perform 5,700 jobs as a janitor, 13,000 jobs as a machine feeder, 15,000 jobs as an assembler, and 10,000 jobs as a hand packager.
Plaintiff contends that, according to the Dictionary of Occupational Tides (DOT), of the four occupations mentioned by the vocational expert, the hand packager jobs and the janitor jobs required more than one or two steps and only ten percent of the assembler jobs were limited to one or two step instructions. However DOT's requirements are not controlling. See Powers v. Apfel, 207 F.3d 431, 436-437 (7th Cir. 2000); Logan v. Shalala, 882 F. Supp. 755, 764 (CD. Ill 1995). Even if defendant were correct, however, there is still a significant number of jobs that the plaintiff could have performed according to the vocational expert's analysis. See Nix v. Sullivan, 744 F. Supp. 855, 863 (N.D. Ill 1990) aff'd 936 F.2d 575 (7th Cir. 1991) (675 jobs is a significant number).
CONCLUSION
Norman West's motion for remand [14-2] is granted. West's motion for summary judgment [14-1] is denied. Apfel's motion for summary judgment [18-1] is denied. This case is remanded to the Commissioner of the Social Security Administration in order to conduct proceedings consistent with this order.
It is so ordered