Opinion
Case No. 98-C-2186
February 1, 1999
MEMORANDUM OPINION AND ORDER
The Plaintiff, Chester Banas, seeks judicial review pursuant to the Social Security Act, 42 U.S.C. § 405(g), of a final decision of the Commissioner of Social Security (hereinafter "Commissioner") denying his application for Disability Insurance Benefits. Plaintiff moves this Court for summary judgment reversing the Commissioner's decision denying his claim for such benefits or, in the alternative, an order remanding the case to the Commissioner for further proceedings. The Commissioner has filed a Cross-Motion for Summary Judgment in his favor. For the reasons set forth below, the Commissioner's Motion is denied and Plaintiff's Motion is granted in part; specifically, this cause is remanded to the Commissioner for further proceedings consistent with this Opinion.
Procedural History
On November 2, 1993, Plaintiff filed an application for Disability Insurance Benefits, alleging that he had been unable to work because of disability since October 12, 1993. (R. at 41-44.) He described his disability as a deteriorating disc in his back and numbness in his right leg and both arms. He also complained of anxiety. (R. at 76-83.) The application was denied on February 7, 1994, (R. at 46-48), and, pursuant to Plaintiff's Request for Reconsideration of the denial, (R. at 50), the application was again denied on April 11, 1994. (R. at 52-54.)
On April 19, 1994, Plaintiff filed a Request for Hearing, (R. at 55.) On February 7, 1995, Plaintiff's attorney submitted to the Administrative Law Judge ("ALJ") then assigned to the case a December 20, 1994 psychological evaluation of Plaintiff prepared by Darrell Snyder, Ph.D. in which Dr. Snyder found that Plaintiff suffered from severe psychological problems. (R. at 133-151.) Thereafter, on September 18, 1995, the ALJ remanded the case for evaluation of the mental disorders. (R. at 152-154.) On January 26, 1996, the application was again denied. (R. at 155-157.) On January 31, 1996, Plaintiff filed another request for hearing pursuant to which a hearing was held on September 5, 1996 before ALJ Christine Holtz. (R. at 230-275.) On February 28, 1997, the ALJ issued a decision, finding that Plaintiff was not disabled. (R. at 24-35.) On March 17, 1997, Plaintiff filed a Request for Review of the ALJ's decision with the Appeals Council. (R. at 20.) On February 6, 1998, the Appeals Council denied the Request for Review of the ALJ's decision, (R. at 17-18), which decision stands as the final decision of the Commissioner, (R. at 17), and is the subject of the Cross-Motions now before the Court.
Factual Background A. Plaintiff's Testimony
At the September 5, 1996 hearing before the ALJ, Plaintiff testified that he was then 53 years old, having been born on April 20, 1943, and that he completed high school. He had last worked in July 1990 for a company that made track lighting fixtures, which was heavy work. Plaintiff's father was his supervisor on that job, where Plaintiff worked for nine and one-half years. He suffered from panic attacks and back problems and lost a lot of time from work because of medical reasons, so his father terminated him. (R. at 235-237.) Prior to that job, Plaintiff had worked for four or five years for the City of Chicago as a tree trimmer and garbage man, where he injured his back.
Plaintiff lives with his wife of 29 years in an apartment. He moves slowly, using a cane, and has difficulty climbing the seven or eight steps to the apartment. He has pain and stiffness in his back and shoulders, and generally does not feel like doing anything, so he and his wife spend most of their time in the apartment. He has a driver's license, but had not driven an automobile in about five years because of the medications he takes, which makes him afraid to drive. According to Plaintiff, he had not gone out of the apartment alone for about four or five years because he is afraid of having panic attacks or becoming disoriented and lost, which occurred when he last went out alone. He is also afraid of being home alone, and leaves home whenever his wife does so. (R. at 244-245, 251-254, 259.)
Plaintiff testified that he started having panic attacks in the 1970's, and that the symptoms include heart palpitations, sweaty hands and the feeling that he is about to have a heart attack. He becomes disoriented during such attacks. (R. at 251-252.) He has been treated by Dr. Casella, a doctor at the Veterans Administration Hospital, for many years. He has been taking Ativan and Xanax for his anxiety/panic attacks for many years, but still has such attacks two or three times per week. (R. at 252-253.)
Plaintiff's wife, Josephine Banas, testified that she had been married to Plaintiff for 29 years, and that he had not driven an automobile in about five years because he is afraid to drive. For the past three or four years, he refuses to leave home unless she or someone else accompanies him, and he is also afraid to be left home alone. When Mrs. Banas had last worked, in 1991, Plaintiff would call her at work and ask her to come home for lunch to be with him, but when she would get home, he would be in bed. When she leaves home to go to the store, he insists on going with her, but, once they are out, he becomes so impatient that they return home without the items that they went to the store to purchase. At home, he constantly checks the doors during the day to make sure that they are locked, and is unable to finish anything he starts. He basically does nothing around the apartment. (R. at 270-272.)
In a signed statement dated September 1, 1996, Mrs. Banas stated, consistent with her testimony, that Plaintiff was very depressed and that the two of them seldom ventured outside of their apartment because one minute he would suggest that they go out, then change his mind, indicating that he did not want to go out. When they did go out, such as to the store, Plaintiff would be too impatient to wait in line, so they would have to leave. (R. at 215.)
In another statement, from David Banas, Plaintiff's son, dated September 3, 1996, he stated that over the previous five years, Plaintiff had changed dramatically and that he wandered around aimlessly, as if he was lost. He tended to isolate himself from his family and could not cope with others, thinking that everyone was against him. (R. at 214.)
B. Medical Records
Records from the Veterans Administration Hospital for the period October 12, 1993 to December 22, 1994 reveal that Plaintiff complained of lower back pain, which radiated to his right knee. He reported that he had moved a refrigerator on October 12, 1993, which aggravated a back condition he had had since 1977. An x-ray taken on October 29, 1993, revealed only early degenerative disc disease, with no fracture or displacement, and he was prescribed exercise, a cane and a corset. (R. at 109-119.)
On December 13, 1993 and December 9, 1995, independent physical examinations were performed on Plaintiff by Drs. Brian F. Lynch and Manuel Rosario, respectively, whose objective findings were essentially unremarkable. With regard to Plaintiff's mental status on December 13, 1993, Dr. Lynch noted that he correctly stated his name, date of birth, and the date, time and place of the examination. He also was able to repeat numbers backwards and forward, recall five items after five minutes, recall that his wife drove him to the examination, what he ate for dinner the prior evening, what was in the news the prior day, name five large cities, correctly answer three proverbs and correctly respond to the question as to what he would do if he found a stamped addressed envelope. (R. at 120-124, 178-181.) Both doctors noted Plaintiff's complaints of anxiety/panic attacks. (R. at 120, 181.)
On December 15, 1994, Plaintiff underwent a comprehensive psychological evaluation by Darrell Snyder, Ph.D., a licensed clinical psychologist, during which he was administered a battery of nine tests and other examinations. Plaintiff described to Dr. Snyder his estrangement from his parents, whom he had not seen in about five years, even though they live in the same city, and his inability to drive an automobile because of his lack of patience and tolerance with other drivers. He also described his isolation from others, with the exception of his wife, with whom he feels safe, and his fear of panic attacks, which keeps him essentially confined to his apartment. At that time, he was able to leave the apartment, but would venture only one block away and would tell his wife where he was going and when he would return. He feared that he would have another panic attack — such as one that he had recently suffered while in a supermarket with his wife — and that no one would come to his aid.
Based on the psychological tests administered and his interview with Plaintiff, Dr. Snyder opined that Plaintiff was suffering from a panic disorder, with agoraphobia, both of which were severe, and dysthymia. Dr. Snyder noted that Plaintiff had been taking Xanax — which is typically the medication for panic disorders — for about six years, and that his symptoms were present despite the medication. He noted that Plaintiff had been terminated from his last job by his own father, and opined that he was markedly limited in the abilities to maintain attention and concentration, perform activities within a schedule, carry out even simple instructions for a sustained period and complete a normal workday and workweek without interruptions from psychologically-based symptoms. Finally, Dr. Snyder opined that the severity of Plaintiff's psychological disorders were such that they met the Commissioner's criteria for presumptive disability. (R. at 134-151.)
On December 9, 1995, Plaintiff underwent a 45-minute consultative psychiatric evaluation by Dr. Ovidio DeLeon, a psychiatrist, at the request of the Commissioner. Although the evaluation did not include testing, Dr. DeLeon reviewed the report of Dr. Snyder of his psychological examination conducted on December 15, 1994. Plaintiff essentially repeated to Dr. DeLeon what he had related to Dr. Snyder regarding his symptoms. Dr. DeLeon opined that Plaintiff was suffering from recurrent major depression and a panic disorder, with agoraphobia. Dr. DeLeon, unlike Dr. Snyder, did not rate the severity of Plaintiff's mental disorders. However, Carl Hermsmeyer, Ph.D., signed off on two evaluations prepared by a non-examining, non-physician in which that individual, Bronwyn E. Rains, M.A., essentially found that Plaintiff was only "moderately" limited in the areas of functioning in which Dr. Snyder found him "markedly" limited. (R. at 167-175, 184-190.)
C. The ALJ's Decision
After summarizing all of the evidence relating to Plaintiff's physical impairments, the ALJ concluded that, while such impairments were "severe", within the meaning of the Social Security Regulations, they would not preclude his performance of work at the medium exertional level. In so finding, the ALJ discredited the report of Dr. Casella — based primarily on the minimal objective findings of Dr. Rosario — that Plaintiff could not perform any physical activities. (R. at 28-29.)
With regard to Plaintiff's mental impairments, the ALJ noted the conflicting opinions of Drs. Snyder and Hermsmeyer as to the degree to which such impairments would affect Plaintiff's ability to engage in work-related activities. The ALJ relied heavily on the opinion of Dr. Hermsmeyer, while also noting that he had never examined Plaintiff and that his assessment was based on a review of the medical file, presumably including the reports of Drs. Snyder and DeLeon. In this regard, the ALJ gave little or no weight to Dr. DeLeon's finding of major depression and panic disorder, with agoraphobia — which was consistent with that of Dr. Snyder — because those findings were based largely on Plaintiff's reported symptoms, which the ALJ found were inconsistent and exaggerated. (R. at 28-29, 31.)
Standard of Review
In reviewing the Commissioner's (here the ALJ's) decision, the court may not decide facts anew, reweigh the evidence, or substitute its own judgment for that of the Commissioner. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). Rather, the court must accept findings of fact that are supported by "substantial evidence," 42 U.S.C. § 405(g)(1988), where substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Herron 19 F.3d at 333 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The ALJ must consider all relevant evidence and may not select and discuss only that evidence that favors her ultimate conclusion. Id. Where conflicting evidence allows reasonable minds to differ, the responsibility for determining whether a claimant is disabled falls upon the Commissioner (or ALJ), not the courts. Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990). See also Stuckey v. Sullivan, 881 F.2d 506, 509 (7th Cir. 1989) (the ALJ has the authority to assess medical evidence and give greater weight to that which she finds more credible). The court is limited to determining whether the Commissioner's final decision is supported by substantial evidence and based upon proper legal criteria. Erhart v. Secretary of Health and Human Services, 969 F.2d 534, 538 (7th Cir. 1992).
This does not mean that the Commissioner (or ALJ) is entitled to unlimited judicial deference, however. In addition to relying on substantial evidence, the ALJ must articulate her analysis at some minimal level and state her reasons for accepting or rejecting "entire lines of evidence," although she need not evaluate in writing every piece of evidence in the record. See Herron, 19 F.3d at 333; see also Young v. Secretary of Health and Human Services, 957 F.2d 386, 393 (7th Cir. 1992) (ALJ must articulate his reason for rejecting evidence "within reasonable limits" if there is to be meaningful appellate review); Guercio v. Shalala, No. 93 C 323, 1994 WL 66102, *9 (N.D. Ill. 1994) (ALJ need not spell out every step in his reasoning, provided he has given sufficient direction that the full course of his decision may be discerned), (citing Brown v. Bowen, 847 F.2d 342, 346 (7th Cir. 1988)).
The Social Security regulations prescribe a sequential five-part test for determining whether a claimant is disabled. See 20 C.F.R. § 404.1520 (1998). The ALJ must consider: (1) whether the claimant is presently unemployed; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the claimant's impairment meets or equals any impairment listed in the regulations as being so severe as to preclude substantial gainful activity; (4) whether the claimant is unable to perform his past relevant work; and (5) whether the claimant is unable to perform any other work existing in significant numbers in the national economy. See 20 C.F.R. § 404.1520 (1998); see also Young, 957 F.2d 386, 389. A finding of disability requires an affirmative answer at either step 3 or step 5. A negative answer at any step (other than step 3) precludes a finding of disability. Id. The claimant bears the burden of proof at steps 1-4, after which the burden shifts to the Commissioner at step 5. Id.
The ALJ's analysis at step 5 typically involves an evaluation of the claimant's Residual Functional Capacity ("RFC") to perform a particular category of work ( i.e. sedentary, light, medium, heavy or very heavy work), in combination with an application of the Medical-Vocational Guidelines ("the Grid") to determine whether an individual of the claimant's age, education, and work experience could engage in substantial gainful activity. See 20 C.F.R. Pt. 404, Subpt. P, App. 2 (1998).
The Grid is a chart which classifies a claimant as disabled or not disabled, based on the claimant's physical capacity, age, education, and work experience. Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987). The Grid was promulgated to simplify the process, and improve the consistency, of disability determinations. Id. If the use of the Grid is appropriate, the Secretary may rely upon it for determining disability, and, in such a case, the Grid alone constitutes substantial evidence sufficient to uphold the decision of the Secretary. Id. However, use of the Grid may be inappropriate if the claimant suffers from severe non-exertional impairments which prevent the claimant from performing the work indicated by the Grid. Id. at 640-41. Thus, if non-exertional impairments are severe enough, use of the Grid is not appropriate and the courts will reverse a determination of non-disability based on the Grid. Id. at 641.
The determination as to whether use of the Grid is appropriate is a question of fact, and the ALJ's use of the Grid will be upheld if substantial evidence supports its application. Walker, 834 F.2d at 641. The fact that a claimant suffers from a non-exertional impairment does not automatically preclude utilization of the Grid; in such a case, the ALJ must determine whether the claimant's non-exertional impairments are severe enough to substantially limit the claimant's abilities. Walker, 834 F.2d at 641 . "To uphold the ALJ's finding that grids may be used in a given case, we require only `that there be reliable evidence of some kind that would persuade a reasonable person that the limitations in question do not significantly diminish the employment opportunities otherwise available.'" Id. (citing, Warmoth v. Bowen, 798 F.2d 1109, 1112 (7th Cir. 1986).)
Analysis
At the outset, the Court notes the ALJ's careful recitation of and analysis of the evidence as it relates to Plaintiff's physical impairments. Thus, despite Plaintiff's testimony regarding his low back pain and related stiffness in his shoulders to the extent that he requires a cane to walk and that he is unable to sit, stand or walk for more than a few minutes at a time or lift more than a few pounds, there is an absence of objective medical evidence to support those claims. Dr. Casella's conclusionary statement, which essentially found that Plaintiff could not engage in any physical activities, is not supported by any objective medical findings and was, therefore, properly discredited by the ALJ.
With regard to Plaintiff's mental impairments, the ALJ cited all of the evidence relating thereto, as set forth above, but concluded that, in spite of the existence of Plaintiff's depression and anxiety, he was able to perform simple, unskilled work. In this regard, the ALJ noted that Plaintiff would leave the apartment daily, but only when accompanied by his wife; that he is able to take public transportation when his wife is with him; that he was able to withstand the stress of the 45-minute psychiatric interview without any apparent problems; that he had had no hospitalizations or psychological counseling for his problems and that the objective medical evidence of any mental impairments was "very scant." (R. at 29.)
The mental evaluations of Plaintiff by Dr. Snyder — to whom Plaintiff was referred by his attorney — and Dr. DeLeon — to whom he was referred by the Commissioner — are entirely consistent. Both examiners concluded that Plaintiff suffered from depression and anxiety/panic disorder, with agoraphobia. The ALJ specifically discredited the findings of Dr. DeLeon — and, by implication, those of Dr. Snyder — because they were allegedly based largely on Plaintiff's reported symptoms, which the ALJ found were inconsistent and exaggerated. The ALJ then gave "considerable weight" — actually controlling weight — to the opinions of the Commissioner's designated internal medicine physicians (Drs. Lynch and Rosario) and non-examining psychologist (Dr. Hermsmeyer) over those of the examining mental health professionals, one of whom was designated by the Commissioner.
In the December 14, 1995 Psychiatric Review Technique and Mental Residual Functional Capacity Assessment forms completed by Mr. Rains and signed by Dr. Hermsmeyer, he acknowledged that he had reviewed the December 15, 1994 psychological evaluation prepared by Dr. Snyder but not that of Dr. DeLeon, which was not dictated until December 11, 1995, three days prior to the preparation of the assessments. (R. at 186.) Whether Dr. Hermsmeyer would have given more weight to the evaluation prepared by Dr. DeLeon — to whom Plaintiff was referred by the Commissioner — than to that of Dr. Snyder or whether he would have given more weight to the findings of Dr. Snyder had he been aware that Dr. DeLeon's findings, just a few days earlier, were consistent with those of Dr. Snyder, is, of course, unknown. What is known, however, is that there is no indication that Dr. Hermsmeyer considered the evaluation prepared by Dr. DeLeon.
When confronted with conflicting medical findings, the ALJ must, of necessity, credit some findings and discredit others. In so doing, however, the ALJ must articulate her reasoning, to some degree, for accepting or rejecting such findings in order to afford meaningful judicial review. Here, the ALJ apparently based her decision to discredit the consistent evaluations prepared by Drs. Snyder and DeLeon — which are the only evaluations conducted by examining mental health professionals — on her belief that Plaintiff was inconsistent and that he exaggerated his symptoms when he described them to the examiners. She did not explain her basis for concluding that Plaintiff exaggerated his symptoms, and none are apparent. Moreover, it is noted that Dr. Snyder did not rely totally on his interview with Plaintiff, but that he also administered a battery of psychological tests, and that Dr. DeLeon reviewed the results of those tests in formulating his opinion. While the ALJ might have been skeptical of the report of Dr. Snyder, to whom Plaintiff was referred by his attorney — a skepticism that is not clearly warranted based on this record — there simply is no explanation as to why she chose to credit the opinion of non-examining physician Hermsmeyer over that of Dr. DeLeon. In this regard, the ALJ noted that Plaintiff had not received any psychological counseling or been hospitalized because of mental problems and that the objective medical evidence of such problems was very scant. She noted further that Plaintiff was able to leave home and to take public transportation, when accompanied by his wife, and that he was able to withstand the stress of the interview with Dr. DeLeon with no apparent problems. While it is true that the objective medical evidence is scant, all of the "objective" medical evidence — the testing results of Dr. Snyder — appear to at least suggest the existence of rather than the non-existence of a severe mental impairment. Perhaps the ALJ could have utilized the expertise of a medical advisor at the hearing, pursuant to 20 C.F.R. § 404.1527(f)(2), in making these critical determinations.
Indeed, the assessments prepared by Mr. Rains/Dr. Hermsmeyer commented on only two of the many tests that were administered to Plaintiff, stating only that the reported results of those tests were not supported by Plaintiff's "adaptive behaviors." (R. at 189.)
Based primarily on Plaintiff's physical impairments, the ALJ concluded that he can no longer perform his past relevant work, which required heavy lifting, but that he can perform work at the medium exertional level. She concluded further that, while Plaintiff suffered from severe depression and anxiety, which are non-exertional impairments, he retained the mental ability to perform simple, unskilled work. Then, applying Grid Rule 203.21, the ALJ concluded that Plaintiff was not disabled. It was the ALJ's concession that Plaintiff is unable to perform any of his past jobs (Step 4) that necessitated her decision as to whether he could perform other work (Step 5), at which step the burden of proof shifted from Plaintiff to the Commissioner. The ALJ found that the Commissioner met that burden by application of the Grid.
Inexplicably, the ALJ did not mention or give any consideration whatsoever to the testimony and written statement of Plaintiff's wife and the written statement of Plaintiff's son regarding their observations of Plaintiff for the four-to-five-year period preceding the hearing. Indeed, the testimony of Plaintiff's wife was essentially the same as her statement, both of which corroborate the testimony of Plaintiff, the statement of their son, and the reports made to Drs. Snyder and DeLeon by Plaintiff. While the ALJ was free to determine the weight to be given the testimony and other statements of Plaintiff's wife and son, she certainly had an obligation to consider them. In the absence of any indication that the ALJ considered those statements, the Court must assume that she did not.
The statements of Plaintiff's wife and son, along with the reports of Drs. Snyder and DeLeon, supplemented by the sworn testimony, reveal that Plaintiff is afraid to drive an automobile; he becomes disoriented if he leaves home alone, and refuses to leave home except in the company of his wife; he is afraid of being left at home alone; and, when at home, he constantly checks the locks on the doors; he is very suspicious of others and he has panic attacks when left alone. The ALJ did not specifically discredit any of those reported symptoms, finding only that Plaintiff's reports of such symptoms were inconsistent and exaggerated. She made no finding as to the written statement and testimony of Plaintiff's wife and the statement of their son in this regard. If, indeed, some of the symptoms reported by Plaintiff and the others are credible, it would bring into question the appropriateness of the use of the Grid as well as whether Plaintiff could be expected to engage in any type of employment. This Court, of course, makes no findings in this regard and will not substitute its judgment for that of the ALJ, to whom it would defer on a factually-supported record. The Court's exposition in this regard is to demonstrate the difficulties that reviewing courts confront when psychological evaluations and other mental impairment evidence are ignored or given short shrift without careful explication. It may well be, as the ALJ found, that most of the evidence of severe mental impairments — including the evaluations by Drs. Snyder and DeLeon — is made out of whole cloth. Even so, the ALJ must follow the Commissioner's regulations in making that determination. Again, the ALJ may wish to have a medical expert review the evidence and give an opinion at a hearing rather than making that critical medical determination on her own.
As set forth above, use of the Grid may be inappropriate if Plaintiff suffers from severe non-exertional impairments which would prevent him from performing the work indicated by the Grid. Walker v. Bowen, 834 F.2d at 640-41. Thus, if indeed Plaintiff must be accompanied by his wife or someone else whenever he leaves home, and that he has panic attacks several times per week — an assertion that the ALJ did not discredit — then it is questionable as to whether he would be able to engage in any work activity outside the confines of his apartment.
Conclusion
The Court, having carefully reviewed the ALJ's decision and the entire record, finds that her decision that Plaintiff's mental impairments are not of disabling severity is not supported by substantial evidence. The Court finds no fault with the ALJ's thoroughly analyzed and well-reasoned finding that Plaintiff's physical impairments are not disabling. However, her decision to credit the opinions of Mr. Rains/Dr. Hermsmeyer — neither of whom examined Plaintiff — over the opinions of Drs. Snyder and DeLeon — both of whom were examining mental health professionals — without adequate explanation therefor, is problematic. This is not to suggest that the ALJ could not have credited the opinions of the non-examiners over those of the examining doctors, only that the basis for her decision to do so was not adequately explicated. Her summary conclusion that Plaintiff's complaints were inconsistent and exaggerated, in the absence of some indications of such in the record, cannot support her decision to discredit his testimony or the evaluations of Drs. Snyder and DeLeon.
For the foregoing reasons, the Court remands this matter to the Commissioner for further proceedings consistent with this Opinion. In so doing, the Court expresses no opinion as to the possible merits of the case. It may well be that, after further proceedings and/or proper analysis of the case, the ALJ could reach the same conclusion. Upon remand, the ALJ may wish to — but is not required to — convene another hearing at which a medical advisor will testify after reviewing all of the medical evidence relating to Plaintiff's mental impairments. At the least, the ALJ will issue another opinion in which she will analyze the evidence regarding the mental impairments and explicate the basis of her decision to accept or reject the evaluations prepared by the mental health professionals.
IT IS HEREBY ORDERED that the Commissioner's Motion for Summary Judgment be, and the same hereby is, denied.
IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment be, and the same hereby is, granted in part as set forth above.