Opinion
Civil No. 99-1311-JO
February, 2001
George Andre Fields Seattle, WA,. Attorney for Plaintiff.
Lucille G. Meis, Victoria L. Blais SOCIAL SECURITY ADMINISTRATION Office of the General Counsel Seattle, WA,. William W. Youngman Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE Portland, OR., Attorneys for Defendant.
OPINION AND ORDER
Claimant Saundra M. Bowman ("claimant") seeks judicial review of a final decision of the Commissioner of Social Security denying her application for disability insurance benefits ("DIB"). This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). After a careful review of the record, I conclude that the Commissioner's decision that claimant is not disabled is not supported by substantial evidence, contains errors of law, and must be reversed.
ADMINISTRATIVE HISTORY
On May 11, 1993, claimant filed an application for DIB, alleging an inability to work since December 31, 1979. The application was denied initially and on reconsideration. Claimant then requested a hearing before an Administrative Law Judge ("ALJ"), which was held on June 6, 1997. The ALJ denied claimant's request for DIB, finding that claimant had the residual functional capacity to work prior to June 30, 1981, the last date of insured status. The ALJ's decision was affirmed by this court on April 26, 1996.
On September 23, 1997, the United States Court of Appeals for the Ninth Circuit issued an opinion reversing and remanding this court's April 26, 1996 order, holding that the ALJ erred in failing to obtain a medical advisor to establish the onset date of claimant's disability. On September 14, 1998, the ALJ held a second hearing, at which time a medical expert testified. Due to her increasing health problems, claimant was not able to attend the hearing. She was, however, represented by counsel. On May 26, 1999, the ALJ concluded once again that claimant was not entitled to DIB because she had the residual functional capacity to work prior to the last date of her insured status. Claimant now appeals that decision.
STANDARD OF REVIEW
This court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence on the record as a whole. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusion." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be upheld if it is a rational interpretation of the evidence, even if there are other possible rational explanations. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989).
SUMMARY OF ALJ'S FINDINGS
The ALJ employed a five-step "sequential evaluation" process in evaluating claimant's disability, as required. See C.F.R. § 404.1520. The ALJ first determined that claimant met the disability insured status requirements on December 31, 1979, through June 30, 1981, and has not engaged in substantial gainful activity since December 31, 1979, thereby satisfying step one.
Second, the ALJ found that on and before the date claimant's insured status expired, she had precursor symptoms of multiple sclerosis, but that this impairment, while severe, did not meet or equal the criteria for any of the listed impairments described in the Listing of Impairments at 20 C.F.R. Part 404, Subpart P, Appendix 1, during the relevant time frame.
In the next step of the evaluation, the ALJ determined that on and prior to June 30, 1981, claimant retained the residual functional capacity to perform light work, restricted only by the need for ready rest room access.
The ALJ next determined that claimant could return to her past relevant work as a dental assistant. Accordingly, the ALJ found that claimant was not disabled as defined by the Social Security Act, and denied her application for benefits.
STATEMENT OF FACTS
Claimant was 38 years old on the date of the hearing. She has a high school education, vocational training as a dental assistant, and past relevant work experience as a dental assistant. Claimant had sufficient insurance coverage to be entitled to DIB through July 30, 1981. Medical Evidence
From 1979 to 1981, claimant was treated by various doctors on numerous occasions for pain, severe fatigue and bowel and urination problems. In January of 1979, she was seen for pain related to a possible ovarian cyst. (Tr. 103.) In October of 1979, claimant was examined for diarrhea, menstrual cramping and short periods. (Tr. 97.) She reported at that time that her employer was becoming frustrated with interruptions in her work caused by her frequent restroom breaks. (Tr. 98.) In October and November of 1980, claimant complained of joint and back pain that had been worsening for several years. (Tr. 92-95.)
On January 2, 1981, claimant was examined at Kaiser for weakness and extreme fatigue. (Tr. 138.) She explained that she was generally tired within two to three hours of waking up in the morning, and complained that she was "crying all the time" because she was sleeping as many as twenty hours per day. Less than two weeks later, however, this period of fatigue subsided, and claimant reported on January 14, 1981 that she felt "excellent." (Tr. 91.) Claimant explained that these cycles of fatigue continued throughout the early development of her condition. (Tr. 38.) In addition to these recurring symptoms of fatigue, pain and bowel problems, claimant was treated for swollen glands in March of 1981 (Tr. 90), generalized chest pain, difficulty eating, laryngitis and swollen glands in April of 1981 (Tr. 88, 91), and allergy-related symptoms in June of 1981. (Tr. 85.)
Claimant was also treated repeatedly after her alleged onset date. In March of 1982, she was again examined for painful joints. (Tr. 158.) She began suffering from foot numbness and pain in September of 1983 (Tr. 164.) In May of 1984, she reported wrist pain and continuing difficulty grasping objects (Tr. 167-68.) In December of 1984, she complained of persistent pain related to tendonitis. (Tr. 162.)
In 1984, claimant began seeing Dr. Stephen Gordon, M.D. After examining claimant, Dr. Gordon reported that claimant suffered from irregular bowel movements, including blood in her stool, memory loss, weight loss, recurrent nausea, swollen glands and tendonitis. (Tr. 172-73.) Claimant was given a working diagnosis of multiple sclerosis in 1985, and was conclusively diagnosed with the disorder in 1988. (Tr. 37.)
On April 8, 1993, based on his early examinations of claimant, Dr. Gordon completed a form describing in detail the nature and severity of claimant's impairment. He stated that claimant had confirmed symptoms of multiple sclerosis, tendonitis and epilepsy, that her symptoms appeared sufficiently severe to prevent claimant from working, and that she was, based on objective medical findings, disabled. (Tr. 109-110.) Dr. Gordon did inaccurately report the year that he had begun treating claimant as 1979 (Tr. 114.), but subsequently corrected this error on January 29, 1998. (Tr. 242.) At that time, he explained that he had started treating claimant in 1985, but that after reviewing her medical records, including those gathered by him after her alleged date of onset, he concluded that "she clearly had onset of a significant problem, probably her multiple sclerosis, prior to 1981." (Tr. 242.)
On September 9, 1998, at claimant's request, Dr. Lorne S. Label, M.D., submitted his medical opinion on the onset date of claimant's disability. He dealt in detail with the question of whether claimant's pain, which was recurring and severe from 1979 forward, was a precursor symptom of multiple sclerosis. Citing several published articles on the subject, Dr. Label stated that "[t]here is no question that pain is a common symptom associated with multiple sclerosis." (Tr. 245.) He went on to opine: "The fact that [claimant] had pain reportedly dating back to 1979, indicates that it was her first symptom in what clearly became debilitating multiple sclerosis. It appears from her medical records, that she developed a chronic progressive multiple sclerosis; the most severe and debilitating type." (Tr. 245.) He concluded that claimant's "symptoms of feeling pain were the initial presenting features of her multiple sclerosis." (Tr. 246.)
Medical Expert Testimony
At the hearing on remand, the ALJ called Dr. Robert Grimm, M.D., to testify as a medical expert. After carefully reviewing the record, Dr. Grimm provided two key opinions that were centrally relevant to the ALJ's findings: 1) The medical evidence on the record did not establish a reasonable diagnosis for claimant prior to July 30, 1981, the last date of her insured status; and 2) Claimant did not exhibit symptoms during her insured period that would be precursors of a more serious diagnosis at a later time. (Tr. 199-200.) Central to Dr. Grimm's conclusions was his opinion that pain was not a symptom associated with multiple sclerosis. (Tr. 206-207.) He did not, and was not asked to, comment on the opinions or medical evidence provided by Dr. Label in support of the contrary conclusion.
Claimant's Testimony
While claimant did not testify at the second administrative hearing, she did testify at the first hearing conducted on December 7, 1994. At that time, claimant stated that she had suffered from recurring symptoms of bowel problems, urinary impairment, and severe pain and fatigue since 1979. (Tr. 37.) She explained that she quit working in 1979 due to muscle weakness, bowel and urinary problems, fatigue and difficulty grasping objects. (Tr. 38.) She further stated that she could not return to work because her symptoms were cyclical and worsening; while there were periods of reprieve, she would soon suffer relapses with increasingly severe symptoms. In his first decision denying benefits, the ALJ concluded that "claimant's testimony of pain, other subjective complaints, and functional limitation is neither fully credible nor supported by the objective clinical findings for the time period at issue." (Tr. 18.)
DISCUSSION
In general, claimant assigns error to the ALJ's reliance on the testimony of Dr. Grimm, the medical expert, to determine the onset date of claimant's disability. Specifically, claimant contends that he erred in relying on the testimony of Dr. Grimm to 1) reject the contrary testimony of claimant's treating physician, Dr. Gordon, 2) reject the contrary testimony of Dr. Label, claimant's consultative expert on multiple sclerosis, and 3) reject the testimony of claimant regarding the onset date of her disability. Claimant requests that I reverse the decision of the ALJ and remand the case for an immediate payment of benefits.
With respect to the first issue, it is clearly established that a treating physician's medical opinion must be given controlling weight where it is consistent with the other evidence on the record and supported by that evidence. 1996 WL 374188, *1 (S.S.A.) The medical evidence before me demonstrates that from 1979 to 1981, claimant was treated for recurring and severe fatigue, bowel irregularities, urinary infections and impairment, tendonitis, severe menstrual cramping, muscle weakness, difficulty grasping objects and severe and generalized pain. Claimant testified that her employer became distressed at her recurring symptoms, and that she ultimately quit her job because she needed too much sleep and could not hold on to objects that she needed to perform her responsibilities. Thus, in this case, there is no question that Dr. Gordon's opinion — that claimant was likely suffering from precursor symptoms of multiple sclerosis that resulted in a severe impairment — is consistent with and supported by the evidence on the record.
The ALJ rejected the testimony of Dr. Gordon, concluding that 1) Dr. Gordon improperly relied on medical evidence that was gathered after claimant's alleged onset date and 2) he did not treat her during the relevant period. (Tr. 186.) Neither of these arguments, however, provides a legitimate basis for rejecting the opinions of claimant's treating physician. First, the Ninth Circuit has explicitly stated that "medical evaluations made after the expiration of a claimant's insured status are relevant to an evaluation of the pre-expiration condition." Smith v. Bowen 849 F.2d 1222, 1225 (9th Cir. 1988), citing Parsons v. Heckler, 739 F.2d 1334, 1340 (8th Cir. 1984); Basinger v. Heckler, 725 F.2d 1166, 1169 (8th Cir. 1984). Second, while Dr. Gordon admittedly did not treat claimant during the relevant period, he did subsequently thoroughly treat claimant, thus familiarizing himself with claimant and the specific nature of her condition. The key issue in determining whether Dr. Gordon was claimant's treating physician is whether his examinations of her were prompted by her need for treatment. See 20 C.F.R. § 404.1502. There is no question in this case that they were.
Additionally, the substance of Dr. Gordon's testimony is bolstered by the testimony of Dr. Label. Citing numerous research articles in support of his opinion, Dr. Label stated definitively that "[t]here is no question that pain is a common symptom associated with multiple sclerosis." (Tr. 245.) He explained that "[t]he symptom of pain can be so severe, that it prevents [victims'] ability to work or perform activities of daily living." (Tr. 245.) Without determining whether claimant was severely impaired during the relevant period, he did state that "her symptoms of feeling pain were the initial presenting features of her multiple sclerosis." (Tr. 246.) Thus, both Dr. Gordon, claimant's treating physician, and Dr. Label, concluded that claimant's early complaints were precursor symptoms of multiple sclerosis.
Where a claimant suffers from a slowly progressive impairment, of which multiple sclerosis is an example, SSR 83-20 instructs that the onset date may be inferred from the medical and other evidence on the record. 1983 WL 31249, *2. It states that to determine the onset date, "the date alleged by the individual should be used if it is consistent with all the evidence available." 1983 WL 31249, *3.
In this case, claimant states that her symptoms became so severe by 1979 that she was forced to quit her job. She explains that she required frequent restroom breaks due to her recurring bowel and urinary problems, and that this caused her employer to become distressed. Claimant also explains that she was unable to perform her work by that time because her increasing fatigue required her to sleep excessively and her muscle weakness made it impossible for her to reliably grasp objects. There is no evidence on the record that contradicts claimant's testimony.
The ALJ rejected claimant's testimony as not credible because she was at times able to perform various tasks, including housework, shopping and racquetball, during the relevant period. (Tr. 15-16.) This conclusion, however, ignores the evidence on the record regarding the early development of this disorder. The medical expert himself explained at the hearing that in its early stages, multiple sclerosis symptoms attack in cycles, lasting for weeks and then subsiding until they once again return. (Tr. 211.) Claimant's periodic ability to perform various tasks would thus not be inconsistent with recurring early symptoms of multiple sclerosis — symptoms that may nonetheless be sufficiently frequent and severe to prevent her from maintaining continuous employment.
In rejecting all of the above evidence on the record, the ALJ relied on the testimony of Dr. Grimm, the medical expert called at the second hearing. There are significant problems with Dr. Grimm's testimony, however. First, Dr. Grimm stated that in his opinion, pain is not an early symptom of multiple sclerosis. There is substantial evidence to the contrary. Dr. Label testified that pain was a relatively common early symptom, and cited numerous research articles in support of this position. Further, while Dr. Grimm did not believe that claimant's pain was an early manifestation of her multiple sclerosis, he did not provide any alternative explanations for her continuing pain. Notably, the ALJ rejected the opinion of Dr. Grimm on this point.
Second, Dr. Grimm appeared to rely on the fact that claimant's fatigue subsided as evidence that her fatigue was not a precursor symptom. (Tr. 210.) On the other hand, he concedes that fatigue typically comes in waves, and will subside before it returns in a more severe form. He explained: "When multiple sclerosis starts, the majority of people have an acute attack which then goes into remission. For the first ten or 15 years a patient's course with this disorder these attacks come and go." (Tr. 211.) He does not acknowledge this typical pattern when he speculates that claimant's bouts of severe fatigue during the relevant time period were not early signs of multiple sclerosis.
Thus, after a careful review of the evidence on the record, I conclude that the ALJ erred in relying on the testimony of Dr. Grimm to conclude that claimant was not disabled prior to June 30, 1981. The evidence provided by Dr. Gordon, claimant's treating physician, Dr. Label, and claimant herself, are clearly to the contrary. Further, while the ALJ was clearly correct to request the aid of a medical expert, the opinions of the medical expert are questionable and fail to take into account the evidence as a whole. Accordingly, in light of the testimony of Dr. Gordon, claimant's treating physician, the testimony of Dr. Label, and the presumption in SSR 83-20 that a claimant's testimony should generally determine the onset date of a disability, I conclude that the ALJ erred in concluding that claimant was not disabled during the relevant period.
Finally, I must determine whether to remand this case for further proceedings or for an immediate award of benefits. "Where the Commissioner fails to provide adequate reasons for rejecting the opinion of a treating or examining physician, we credit that opinion `as a matter of law.'" Lester v. Chater, 69 F.3d 1453, 1467 (1995), quoting Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir. 1989). In this case, because I conclude that the ALJ improperly rejected the testimony of claimant's treating physician, I credit his opinions as dispositive in this case. In addition, the ALJ improperly rejected the testimony of claimant regarding the onset date of her disability. Her testimony is not in dispute. Accordingly, there is no further matter to be addressed at the administrative level, and I therefore remand this case for an immediate award of benefits.
CONCLUSION
For the foregoing reasons, this case is REMANDED to the Commissioner for an immediate award of benefits.