Opinion
CIVIL ACTION FILE NO. 3:03-CV-029-JMF.
October 5, 2004
ORDER
Presently pending before the undersigned is the Commissioner's Fed.R.Civ.P. 59(e) Motion [Doc. 25] that this Court reconsider its 42 U.S.C. § 405(g) sentence four determination and Order of April 21, 2004 that the claimant is disabled, with a remand to the Commissioner to determine the amount of such SSI benefit [Doc. 23]. Specifically, the Commissioner contends that reconsideration is mandated because:
1. This Court is not empowered to reverse the Commissioner's determination on disability and remand for computation of the amount of such benefits from a date certain;
2. This Court improperly added an unauthorized element to the applicable pain evaluation standard;
3. This Court is not empowered to order a sentence four remand for an award of benefits when the ALJ's error was the misapplication of the pain standard (i.e. misapplication of the correct legal standard);
4. This Court erred in determining that plaintiff's alcohol consumption was not a material factor in the claimant's disability after April, 1995 (i.e. this Court's determination that the record was devoid of any evidence that plaintiff's alcohol consumption was a material factor in claimant's disability after April, 1995);
5. This Court erred in finding that the ALJ failed to properly weigh the opinions of the claimant's treating physicians (i.e. as set out in the hypothetical questions the ALJ posed to the Vocational Expert in the 1999 and 2001 hearings); and
6. Even if the ALJ failed to properly weigh the objective medical evidence from the treating physicians, such error did not affect the outcome of the case.
The Commissioner further contends that in an SSI case, the claimant must also meet certain non-disability eligibility (financial) requirements which allegedly have not been considered by the Commissioner. See 20 C.F.R. §§ 416.202(c), (d); 416.330(a); 416.1402. The Commissioner has failed to enumerate what matters she has not yet considered. This Court notes that in her application for SSI benefits, the claimant contends that she has no resources, has never worked in a job covered by Social Security, is not eligible for other benefits, and received food stamps. She also has a child receiving SSI benefits. Tr. 139-142, 641, 703-706. See also her earnings record showing no earnings since 1990. Tr. 707. Furthermore, it would appear that the ALJ determined she was eligible for SSI benefits when he found she was disabled from September 11, 1997 through October 31, 1999. Tr. 477-529. See also Tr. 117-120. But see Tr. 125-126.
Whether the alleged disabling pain was real to the claimant.
That the correct legal remedy is a remand for consideration by the ALJ utilizing the proper legal standard.
The Commissioner also argues that the ALJ was prohibited from giving any weight to a treating physician's determination that his patient (the claimant) was "disabled," as that determination is reserved for the Commissioner. See 20 C.F.R. § 416.927(c). This Court must infer that the word "disabled" is a word of art; and only the Commissioner is authorized to determine whether an applicant for disability benefits is "disabled" within the meaning of the Social Security Act. See 42 U.S.C. § 423(d)(1). Nevertheless, a physician is also entitled to utilize the word "disabled" when evaluating his patient's physical or mental limitations, and whether such limitations limit or exclude employment. Thus, the ALJ is obliged to consider such evidence and give it appropriate weight even though the physician utilized the word "disabled" in making his determination as to his patient's limitations. Chappell v. Schweiker, 599 F. Supp. 531 (N.D. Ga. 1983). Indeed, the word "disability" has a different definition in the Americans with Disabilities Act ( 42 U.S.C. § 12102(2)).
Also pending is the claimant's response to the Commissioner's Motion for Reconsideration [Doc. 26], which response contends that the Commissioner's complaints are without merit.
As is evident to the casual observer, the instant case was extremely complex as evidenced by the fact that it involved reversal and remand by the Eleventh Circuit Court of Appeals; a remand by this Court to the Commissioner; three separate administrative evidentiary hearings before two separate ALJ's; three separate applications for disability benefits; a partially favorable 49-page opinion from the second ALJ that the claimant was disabled from September 1, 1997 through November 1, 1999, but not before September 1, 1997, or after November 1, 1999; and, as a consequence, was entitled to SSI benefits.
In its opinion, this Court attempted to describe all of the objective medical evidence of record including those medical records which predated the alleged onset of the claimant's disability. In this regard, it is important to note that the claimant was treated on a number of occasions by physicians associated with Grady Memorial Hospital (GMH); and that during her visit of April 7, 1995, one of the treating physicians determined that the claimant was suffering from, inter alia, a somatization disorder. Tr. 448-49.
It is also important that she had been suffering from lower back pain since 1993, which pain radiated into her lower left extremity with, inter alia, positive straight leg raising. On July 14, 1993, she underwent an MRI of her lower spine which resulted in a diagnosis of a left lateral disc herniation at the L5-S1 disc space and possible compression of the L5 and S1 nerve roots. Tr. 314. On August 5, 1993, she underwent back surgery at GMH: a left L5-S1 laminectomy with diskectomy and L5 foraminatomy. She, nevertheless, returned to GMH with continued complaints of low back pain, and an October 21, 1993 back X-ray showed narrowing of the disc space at L5-S1.
She returned again in June, 1994 after being involved in a motor vehicle collision. At that time, back pain was again noted with a diagnosis of a cervical and lumbar strain. Tr. 454.
She return again on March 5, 1995, with complaints of low back and lower extremity pain. The treating physician was not able to find the presence of a medical problem causing such pain. Tr. 440, 450-451.
As previously noted, she again returned to GMH on April 7, 1995 after twisting her ankle. The doctor applied a splint to her ankle sprain and also diagnosed her as suffering from a somatization disorder. Tr. 448-49. She returned to the orthopedic clinic again on August 18, 1995. Although the physical examination was essentially normal, the treating physician observed mental problems, to wit: talks unnecessarily, does not make eye contact, often manic at times, flight of ideas. Tr. 441, 443-444.
On return visits on September 7, 1995, September 13, 1995, September 28, 1995, and November 13, 1995, she persisted in complaints of low back pain. The treating physician noted severe tenderness on palpation and positive straight leg raising. She was also interviewed by a treating physician, Dr. John G. Morrow, M.D., who also diagnosed the claimant as suffering from a somataform disorder. Tr. 957, 995.
At some time prior to July 18, 1997, she was seen by Dr. Bodie N. Dunlap, M.D. in the GMH Psychiatric Emergency Clinic, who admitted her to the unit, and discharged her on July 18, 1997. He also noted that she had a history of alcohol abuse until that February. Tr. 990. Apparently, she was also seen in the Mental Health Unit on August 21, 1997, and the treating physician noted a past history of alcohol abuse. Diagnoses included "AXIS III: "Briquet's syndrome/somataform disorder." Tr. 947, 987. See also evaluation of October 8, 1997. Tr. 944, 983. Indeed, on October 31, 1997, two treating physicians, Drs. Theodore Antinson, M.D. and Kelly Cobb, M.D., wrote a joint "To Whom it May Concern" letter advising that the claimant was suffering from, inter alia, "a somatization disorder (formerly known as Briquet's Syndrome), a chronic disorder characterized by multiple somatic symptoms in multiple organ systems. She is severely disabled by this condition and requires frequent medical follow ups." Tr. 970. See also the evaluations of November 5, 1997. (Tr. 942); December 31, 1997 (Tr. 946, 948, 950, 985, 989); March 7, 1998 (941, 981); June 30, 1998 (Tr. 925); August 24, 1998 (Tr. 916, 918, 1009).
On September 11, 1998, Dr. Cobb wrote another "To Whom it May Concern" letter noting that the claimant was being treated at GMH for, inter alia, fibromyalgia and somatization D/O." Tr. 913. See also diagnoses of October, 1998. Tr. 912); October 17, 1998 (Tr. 943); October 26, 1998 (Tr. 922).
From June through September, 1994, she was also treated by psychiatrist, E. Clifford Beal, M.D. of the Fulton County Alcohol and Drug Treatment center. His diagnoses included "a possible delusional disorder," and an "alcohol related disorder, with periodic alcoholic drinking binges and was to be scheduled for an outpatient detoxification program. Tr. 398-99; 404-05).
On November 17, 1994, the South Fulton Mental Health Center had her admitted to the Georgia Regional (mental) Hospital for depression. At that time, Dr. A. Ahmed, M.D., noted that, inter alia, her alcohol abuse may have been in remission. Tr. 374-379.
In January, 1995, the claimant was also treated for six days at the Fulton County Alcohol and Drug Treatment Center, with a goal of detoxification.
She also sought treatment at the GMH W. T. Brooks Clinic; and, during a February 15, 1995 visit, it was noted that she was extremely anxious with non-stop talking. Tr. 362.
During an August, 1995, visit to the Butts County Medical Center, she denied having a current problem with alcohol. Tr. 475-476. See also the August, 1995 and August, 1996 notes to the same effect from Vision Psychological Rehabilitation Program. Tr. 854-855, 857.
It is clear that the treating physicians at Vision Psychological Rehabilitative Program diagnosed the claimant as suffering from (1) a depression disorder (R/O major depression), and an anxiety disorder NOS (not otherwise specified). Tr. 854-55. In addition, the doctor noted on her May 5, 1997 visit that she had "numerous somatic complaints." Tr. 852-852.
In addition, on March 27, 1997, she was seen by Dr. Krishan Gupta, M.D. on the referral of Dr. Vicky James, M.D. At that time, he reported that she advised that she had stopped drinking one year earlier. Tr. 17. In addition, during her treatment from October 24, 1996 through June 30, 1997 by Dr. Vicki James, M.D., James does not mention that the claimant has any problem with alcohol. Tr. 840-850. In addition, her treatment by the physicians at Spalding Regional Hospital did not note that she had any problems with alcohol. Tr. 908-11, 1020-22, 1178.
In 1997, she was treated by Dr. Anthony Ferrara, M.D. at the Spalding Regional Hospital for low back pain aggravated by an automobile collision. Diagnosis was degenerative disc disease. Tr. 911, 1022. She returned in April, 1998, and was treated by Drs. H. Michael Webb, M.D. and Ronald C. Gay, M.D. for trembling and leg weakness, chronic low back pain, weak neck and muscles. Lumbar X-rays showed mild osteoporosis and mild spondylosis at L5. Tr. 908-10, 1020-21.
In 1999, she was also treated thereat by gastroenterologist Dr. Appaswany M. Gowda, M.D. Diagnoses included internal hemorrhoids, partially blocked gallbladder with gallstones and depression. Tr. 65-67. He also referred her to Dr. Kusuima S. Rao, M.D., apparently a psychiatrist. She was extremely anxious, nervous and depressed with severe signs of neurovegetative signs of depression, insomnia and inability to concentrate, irritability and panic attacks. Her memory was also clouded by anxiety, and her judgment was questionable. Diagnoses included — AXIS I: depression, severe in nature, without psychotic features, questionable bipolar disorder. Tr. 1163-64, 1174-75. Her 2002 visit is not relevant to the instant issues. Tr. 1178.
In June, 2002, she returned to the Spalding Regional Hospital and was treated by Dr. David A. Van, M.D. Diagnoses were possible infiltration in the right base and heart problems. Tr. 1178.
Beginning in 1999 through February, 2001, the claimant was also treated at the IRIS Counseling Alliance; and on January 15, 2001, she underwent a mental status examination. The doctor noted she was irritable, sensitive and withdrawn; and her mood and affect were anxious and depressed. None of these were caused by her consumption of alcohol, and no alcohol or drug abuse. Diagnoses included: AXIS I: major depressive disorder. Tr. 1171-95.
Her treatment in 2002 by physicians at the McIntosh Trail Family Practice and the Emory Clinic (Tr. 1139-1153) are not relevant to the instant issue.
She also underwent several consultative evaluations, to wit:
1. Dr. G.N. Kini, M.D. (Aug. 22, 1995); and several psychologists;
2. (a) Dr. Dick Maverhofer, PhD. (August 12, 1995);
(b) Dr. W. Jay Clark, PhD. (January 5, 1998); and
(c) Dr. Robert T. Shepard, PhD. (October 5, 1998).
Tr. 408-413; 414-423, 859-863, 960-968.
Insofar as relevant here, Dr. Kini diagnosed her as suffering from, inter alia, LR-5-S1 degenerative disc disease with muscle spasm causing chronic back pain; chronic anxiety neurosis and depression.
Dr. Maverhofer observed that the claimant exhibited anxiety and depression related to family problems; no psychotic symptoms (such as delusions or hallucination). Apparently, she reported that if she uses alcohol while on medication, she gets depressed and upset. He diagnosed her as suffering from, inter alia,
AXIS I: (DSM) 301.13, cyclothymic disorder; AXIS II: (DSM) 301.9, personality disorder, NOS; AXIS III: . . . . back pain, and ankle pain. He also observed that her prognosis for sustained employment was limited. Tr. 419-423.Dr. W. Jay Clark determined that her prognosis was poor, and she has not profited from therapy. She also had several work-related problems including:
(A) difficulty in understanding and carrying out her employer's instructions;
(B) a marked tendency to become lost in rumination concerning her ills, anxieties and insecurities, and a loss of touch with ongoing activities; and
(C) she is not presently ready to work; she will not do well in jobs that involve changes; and, if she works, it must be in very simple, stable jobs involving adequate supervision.
His diagnoses were, inter alia:
AXIS I: (1) (DSM) 300.81 somatization disorder; (2) (DSM) 296.33 — major depressive disorder, recurrent, severe . . .; AXIS II: history of multiple physical disorders plus lower back injury.Tr. 859-863.
In his October, 1998 evaluation, Dr. Robert T. Shepard noted that the claimant had a difficulty in hearing. She also has memory and common sense difficulties; difficulty controlling her impulses, temper and emotions, and faints under stress. She suffers from real problems which make her difficult to treat. His diagnoses included:
AXIS I: (1) (DSM) 300.2 — generalized anxiety disorder, severe; and (2) (DSM) 300.01 — possible panic disorder without agoraphobia. Employment difficulties included:
(1) seriously limited ability to make occupational adjustments, follow work rules, deal with the public, deal with ordinary work stresses, function independently and maintain attention and concentration, relating to co-workers and using judgments;
(2) making performance adjustments, no useful function in understanding, remembering and carrying out detailed job instructions; limited but satisfactorily understanding, remembering and carrying out simple job instructions;
(3) making personal — social adjustments including a serious limitation in behaving in an emotionally stable manner.
He also noted that she was seriously limited in her ability to complete a normal work day and week because of interruptions from her psychologically based symptoms. She was moderately limited in interacting appropriately within the public, asking simple questions and requesting assistance, getting along with co-workers, being aware of normal hazards and taking appropriate precautions, traveling in unfamiliar places and using public transportation, setting realistic plans and goals. She was markedly limited in her ability to accept instructions and respond appropriately, and respond to work setting changes.
The claimant was also evaluated by two non-examining psychologists, Dr. Allen Carter, PhD. (on August 22, 1995), who opined, inter alia, that the record failed to show she had a somataform disorder or a substance addiction disorder (Tr. 424-433). He, nevertheless, opined that she had severe affective and personality disorders which necessitated a residual functional capacity assessment; and Dr. John W. Hollender, PhD. (on January 14, 1998), who noted that the claimant required a residual functional capacities assessment because she was suffering from a severe affective disorder (i.e. § 12.04 — a somatization disorder, major depression, and dysthemia). He also opined that she could engage in substantial gainful activities involving simple instructions. Tr. 864-885.
As noted above, his diagnosis has been overtaken by the evaluation of treating physicians and psychiatrists; and is, therefore, meaningless.
This diagnoses has been overtaken by events as the ALJ determined that the claimant was disabled during this period.
On January 16, 1998, a non-examining physician. Dr. K. Esna-Ashari, M.D., also evaluated the claimant's ability to work despite her degenerative joint and disk disease, and spondylosis, finding that she could engage in substantial gainful activities.
See Fn. 6 above.
Another non-examining physician, Dr. Philip E. Gertler, also evaluated the claimant's work abilities on March 9, 1998. He reached the same conclusion as Dr. Esna-Ashari. Tr. 886-893.
Non-examining psychologist, Dr. Robert T. Cayle, PhD., also evaluated the claimant's work abilities, and determined she could engage in substantial gainful activities. Tr. 904-05.
Discussion
1. This Court is empowered to reverse the Commissioner's findings involving disability and disability award disabilities benefits.
The question of whether this Court can reverse the Commissioner and award disability benefits without a remand for further consideration is answered in the statute (i.e. sentence four of 42 U.S.C. § 405(g) to wit:
(g) . . . The Court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.
Indeed, the Eleventh Circuit stated in Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993):
Generally, a reversal with remand to the Secretary is warranted where the ALJ has failed to apply the correct legal standards. See Walker v. Bowen, 826 F.2d 996 at 1001-02. This Court, however, may reverse the judgment of the District Court and remand the case for an entry of an Order awarding disability benefits where the Secretary has already considered the essential evidence and it is clear that the cumulative effect of the evidence establishes disability without any doubt. (Citations omitted).See also Bowen v. Heckler, 748 F.2d 629, 636 (11th Cir. 1984). As was noted in Fancher v. Secretary of Health and Human Services, 17 F.3d 171, 174 (6th Cir. 1994):
If a Court determines that substantial evidence does not support the Secretary's decision, the Court can reverse the decision and immediately award benefits only if all essential factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits.See also Fields v. Harris, 498 F. Supp. 478 (N.D. Ga. 1980);Moisa v. Barnhart, ___ F.3d ___ (9th Cir., Case No. 02-56672, April 16, 2004); Parks v. Sullivan, 766 F. Supp. 627 (N.D. Ill. 1991); Armstrong v. Sullivan, 814 F. Supp. 1364 (W.D. Tex. 1993). See also Harris v. Secretary of Health and Human Services, 821 F.2d 541 (10th Cir. 1987). Compare Boyd v. Heckler, 704 F.2d 1207 (11th Cir. 1983).
Such is the case here. Thus, this ground is without merit.
2. This Court did not add an unauthorized element to the standard to evaluate pain.
As previously noted, the statute defines the word "disability" with respect to whether a claimant is eligible for SSI disability benefits. See 42 U.S.C. §§ 423(d), 1382(a) and 1382c(a)(3). So as to augment the statutory definition, the Commissioner has adopted a Listing of Impairments which, if present, entitle a claimant to Social Security and Supplemental Security Income benefits. See 20 C.F.R. Subpart P, Appendix 1. Included therein are mental disorders (impairments) ( see 12.00) including affective disorders (§ 12.04) and somataform disorders (§ 12.07). Indeed, somataform disorders are disorders which include "physical symptoms for which there are no demonstrable organic findings or known physiological mechanisms." Id.
In order to be eligible for disability benefits for a somataform disorder, the claimant must show:
A. Medically documented by evidence of one of the following:
1. A history of multiple physical symptoms of several years duration, beginning before age 30, that have caused the individual to take medicine frequently, see a physician often and alter life patterns significantly; or
2. Persistent nonorganic disturbance of one of the following:
a. Vision; or
b. Speech; or
c. Hearing; or
d. Use of a limb; or
e. Movement and its control (e.g. coordination disturbance, psychogenic seizures, akinesia, dyskinesia; or
f. Sensation (e.g. diminished or heightened).
3. Unrealistic interpretation of physical signs or sensations associated with the preoccupation or belief that one has a serious disease or injury;
AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
Indeed, as noted in A(3) above the claimant must present evidence of an "unrealistic interpretation of physical signs or sensations associated with the preoccupation or belief that one has a serious disease or injury.
This is precisely the element which the Commissioner now criticizes — an unrealistic belief that the claimant has a serious disease or injury. In other words that the alleged dysfunction is real to the claimant.
As the Commissioner has specifically included such element as a part of the test for a disabling somataform disorder, it cannot be seriously contended that this Court has added an additional element. Consequently, this issue is without merit. See Parks v. Sullivan, 766 F. Supp. 627 (N.D. Ill. 1991); Parker v. Califano, 441 F. Supp. 1174 (N.D. Cal., 1977); Davis v. Califano, 439 F. Supp. 94 (E.D. Pa. 1977); Bishop v. Weinberger, 380 F. Supp. 293 (E.D. Va. 1974). Compare Brown v. Sullivan, 921 F.2d 1233 (11th Cir. 1991). Compare Cass v. Shalala, 8 F.3d 552 (7th Cir. 1993).
3. This Court is not empowered to order a sentence four remand for the award of benefits where the ALJ's error was misapplication of the pain standard.
This Court agrees that generally it should not order a sentence four remand for the award of benefits where the only reversible error is the ALJ's misapplication of the pain standard. However, the Eleventh Circuit has also ruled otherwise. See Stewart v. Apfel, ___ F. Supp.2d ___ (______) aff'd, 245 F.3d 793 (11th Cir. 2000) (Table), 2000 U.S. App. Lexis 33214; Lewis v. Callahan, 125 F.3d 1436 (11th Cir. 1997); Carnes v. Sullivan, 936 F.2d 1215, 1219 (11th Cir. 1991); Elam v. Railroad Retirement Board, 921 F.2d 1210, 1217 (11th Cir. 1991); Walden v. Schweiker, 672 F.2d 835, 840 (11th Cir. 1982).
4. The Claimant's history of alcohol abuse was irrelevant to her disabling condition.
This Court agrees that the statute ( 42 U.S.C. § 423(d)(2)(c)) prohibits the award of disability benefits to a claimant where alcohol abuse constitutes a contributing material factor of the disability. Mitchell v. Commissioner of Social Security, 182 F.3d 272 (4th Cir. 1999), cert. denied 528 U.S. 944, 120 S.Ct. 358, 145 L.Ed.2d 280 (1999). Contrary to the Commissioner's allegations, the record is devoid of any evidence from any treating or consultative physician or psychologist that the claimant's prior alcohol abuse constituted a contributing material factor to her disabling somataform disorder. At best, they simply co-existed at certain times. Therefore, this issue is without merit. Compare Perra v. Chater, 968 F. Supp. 930 (S.D. N.Y. 1997), aff'd 141 F.3d 1152 (2nd Cir. 1997).
5. This Court properly concluded that the ALJ failed to give proper weight to the opinions of the claimant's treating physicians.
As noted in the opinion, this Court concluded that the ALJ failed to give proper weight to the opinions of the claimant's treating physicians. The opinion clearly establishes such error; and the Commissioner's allegation to the contrary is not supported by any valid legal authority. Furthermore, it is clear that such failure adversely affected the outcome of the opinion, as the treating physicians, as well as the consultative psychologists, unequivocally show that the claimant is suffering from a disabling mental condition which entitles her to SSI disability benefits. Accordingly, Grounds 4 and 5 of the Commissioners Motion are without merit.
Notwithstanding the foregoing to the extent this Court erred in directing that the Commissioner award benefits commencing on a date certain, said opinion is in error. See Bivines v. Bowen, 833 F.2d 293 fn. 1 (11th Cir. 1987). Therefore, said opinion is hereby modified so as to direct that, on remand, the Commissioner shall ascertain the amount of SSI benefits to which the claimant is entitled, and the date such payments should commence where the evidence shows that the claimant was disabled within the meaning of the Act by April, 1995.
IT IS THEREFORE ORDERED that, except as noted in the penultimate paragraph, the Commissioner's Motion for Reconsideration is DENIED.
IT IS HEREBY ORDERED.