Opinion
CV-01-216-ST
August 1, 2001
FINDINGS AND RECOMMENDATION
INTRODUCTION
Plaintiff, Tari Britton ("Britton"), brings this action against defendant, Larry G. Massanari, Acting Commissioner of the Social Security Administration ("SSA"), challenging the denial of her application for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI"). For the reasons set forth below, the decision of the SSA should be affirmed.
When this case was filed, Kenneth S. Apfel was the Commissioner of the Social Security Administration. President George W. Bush appointed Larry G. Massanari ("Massanari") as the Acting Commissioner of the Social Security Administration, effective March 29, 2001. Pursuant to FRCP 25(d)(1), Massanari is substituted as the named defendant.
PROCEDURAL HISTORY
On March 15, 1999, Britton protectively filed applications for DIB and SSI, alleging the onset of a disabling condition on January 7, 1999, due to breast cancer and depression. Tr. 78, 85-87, 100. On May 26, 1999, the applications were denied due to the lack of a diagnosis and the "situational" nature of Britton's depression. Tr. 56-57. The applications were also denied on reconsideration. Tr. 59-60. On August 17, 2000, Administrative Law Judge ("ALJ") William L. Stewart presided over a hearing and heard testimony from Britton and a vocational expert ("VE"), Lynn Jones. Tr. 35-55.
Citations are to the page(s) indicated in the official transcript of record filed with the Commissioner's Answer on April 13, 2001 (docket #7).
On September 28, 2000, ALJ Stewart issued a written decision again denying Britton's application for DIB and SSI. Tr. 11-22. The Appeals Council denied Britton's request for review. Tr. 6-7. Thus, ALJ Stewart's decision dated September 28, 2000, is a final decision of the SSA, subject to review by this court. 20 C.F.R. § 404.981 and 416.1481.
STATEMENT OF FACTS
Britton alleges disability as a result of cancer and depression. The details of Britton's cancer diagnosis and related treatment are largely undisputed. Moreover, with respect to this appeal, those details are relevant only insofar as they provide the timeframe for analyzing Britton's claim that she spent most of an entire year locked in her home, which is the sole basis of her request for review of the ALJ's decision.
I. Cancer
In October 1998, Britton found a lump in her right breast. Tr. 180. Following that unsettling discovery, she underwent a right lumpectomy on January 7, 1999, which revealed cancer in the right breast (Tr. 163, 169), a total right mastectomy on January 20, 1999 (Tr. 151, 166-67), and a left lumpectomy on March 8, 1999, which revealed a benign fibroademoma and benign fibrocystic changes (Tr. 154, 157-59). From March 24, 1999, through June 3, 1999, Britton underwent adjuvant chemotherapy and related evaluations. Tr. 103, 194-200.
In July 1999, Britton's boyfriend committed suicide. Tr. 262.
In October 1999, Britton's insurance provider approved coverage of a prophylactic mastectomy of Britton's left breast (Tr. 261) and Britton underwent that surgery on November 4, 1999. Tr. 221-22, 268-70. Shortly thereafter, Britton began experiencing vaginal bleeding and underwent pelvic ultrasounds on January 3 and March 13, 2000, which revealed possible endometrial cancer. Tr. 232, 258, 263-64. Britton underwent a hysterectomy on May 5, 2000. Tr. 241-43.
II. Depression
As this brief synopsis reveals, throughout 1999 and the first half of 2000, Britton was forced to deal with significant stressors in her life, both as a result of surgeries and treatment for ongoing medical difficulties and as a result of the suicide of her boyfriend. As a result, she suffered from depression.
The record reflects that as early as January 14, 1999, Britton was feeling "nervous" and requested medication. Tr. 179. Family Nurse Practitioner Olson ("Nurse Olson") prescribed Xanax, which Britton continued to take as needed through March 1999. Tr. 179, 205.
In February 1999, Britton reported episodes of crying, but the chart notes do not reflect any restrictions on Britton's activities of daily living, any diagnosis for psychological difficulties, or any additional prescriptions. Tr. 179. On March 2, 1999, Dr. Rubina Qamar, reported that Britton was living alone and taking Wellbutrin (an antidepressant) and Xanax (a tranquilizer). Tr. 205.
By March 17, 1999, Britton reported to Nurse Olson that she was tired, depressed, had no appetite, and did not even want to go outside. Tr. 175. Nurse Olson diagnosed depression and an adjustment disorder, and prescribed Prozac and weekly follow-up appointments. Id. Britton reported similar symptoms to Dr. Qamar, complaining of feeling very tired, fatigued, and "stressed out" from her recent surgeries. Tr. 203. Between March 24 and June 3, 1999, Britton continued to take Prozac and kept approximately a dozen appointments at the Cancer Treatment Center, undergoing adjuvant chemotherapy and related evaluations. Tr. 175, 194-200. She also attended several appointments with Nurse Olson. Tr. 262. Each of Britton's chemotherapy sessions would leave her needing the assistance of family and friends for two or three days thereafter.
On April 19, 1999, Britton's mother completed a questionnaire indicating that Britton lived alone but that other family members were driving her to doctor's appointments and helping her with household chores while she was undergoing chemotherapy. Tr. 113, 115, 118. Britton filled out a similar questionnaire indicating that friends cooked for her for two to three days after chemotherapy, and that while undergoing chemotherapy, she spent most of her day napping, watching television, reading books, or listening to the radio. Tr. 132, 134, 136. When not sick from a round of chemotherapy, she prepared her own meals and independently looked after her pet. Tr. 117, 135.
On May 22, 1999, a non-examining internist, Sharon B. Johnson, reviewed the file and concluded that Britton was suffering from "situational depression," which was not unreasonable or unusual given her diagnosis of breast cancer. Tr. 57. Ms. Johnson also noted that Britton was prescribed Xanax, but did not carry a diagnosis of depression from her primary care physician. Id.
On August 16, 1999, Dr. Qamar reported that Nurse Olson had given the claimant a prescription for Prozac for her depression. Tr. 189. On September 23, 1999, Dr. Quamar reported that Britton had completed chemotherapy with no relapse and had "no limitations to prevent her from working." Tr. 188.
The record contains numerous chart note entries between October 1999 and January 2000 relating to Britton's left breast surgery and follow-up evaluations. Tr. 221-22, 258-59, 261, 268-70, 272-74. Although those chart notes indicate that Britton struggled to quit smoking, battled insomnia and anxiety, and took increasing doses of Prozac (Tr 259), they do not reflect any restrictions in her activities of daily living.
On October 30, 1999, a neuropsychologist, Dr. Richard Kolbell, evaluated Britton. Tr. 208-11. Dr. Kolbell reported that Britton was living with her son, daughter-in-law, and grandchild, was forging ahead with life, and was "independent in all basic and advanced activities of daily living." Tr. 210. She was taking Prozac, trazodone, and tamoxifen. Tr. 209. Dr. Kolbell diagnosed an adjustment disorder with depressed mood. Tr. 210. He reported that Britton was "managing remarkably well given her profound, multiple significant stressors," referring to her diagnosis of cancer, series of surgeries, chemotherapy, and recent suicide of her boyfriend. Id. However, he suspected that she would experience periods of deepening depression and thought that she might benefit from counseling or psychotherapy at some point. Id.
Although the chart notes are indecipherable, it appears that, between October 19 and December 6, 1999, Britton kept nine appointments with Dr. Raul A. Mirande and four appointments with Nurse Olson. Tr. 259, 272-74. On November 4, 1999, Dr. Mirande performed a prophylactic left breast mastectomy. Tr. 221-22, 268-70.
On December 7, 1999, a non-examining psychologist, Dick Wimmers, Ph.D., reviewed Britton's medical file, and concluded that Britton suffered from a non-severe affective disorder of depression characterized by appetite disturbance, sleep disturbance, decreased energy, and difficulties concentrating or thinking. Tr. 212-219.
By March 9, 2000, Britton had lost 20 pounds, was suffering from an "obvious depressed mood," and complained of being tired and having no appetite. Tr. 258. Nurse Olson prescribed Prozac, Serzone, and a follow-up pelvic ultrasound. Tr. 257. On March 13, 2000, Britton underwent another pelvic ultrasound, which revealed irregularities and ultimately resulted in Britton electing to have a hysterectomy on May 5, 2000. Tr. 241.
On May 25, 2000, Britton underwent an intake assessment with the Klamath County Department of Mental Health ("KCDMH"). Tr. 281-85. The examining therapist noted that Britton tired very easily and was hypoactive due to the recent hysterectomy, but that her activities of daily living were within normal limits except when she was going through chemotherapy. Tr. 282-83. The therapist diagnosed a bipolar disorder with a recent episode of depression and recommended individual therapy. Tr. 283-84. Britton did not keep a follow-up appointment on June 5, 2000, and a chart note dated June 29, 2000, indicates that Britton did not return to complete her initial paperwork and did not return for therapy or other services. Tr. 276-77.
STANDARDS
The initial burden of proof rests upon the claimant to establish disability. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir 1995), cert denied, 517 U.S. 1122 (1996). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months. . . ." 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520, 416.920. First the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b), 416.920(b).
In step two the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 404.1520(c), 416.920(c). If not, the claimant is not disabled.
In step three the Commissioner determines whether the impairment meets or equals "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Id; 20 C.F.R. § 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
In step four the Commissioner determines whether the claimant can still perform "past relevant work." 20 C.F.R. § 404.1520(e), 416.920(e). If so, the claimant is not disabled. If the claimant cannot perform past relevant work, then the burden shifts to the Commissioner.
In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 404.1520(e) (f), 416.920(e) (f). If the Commissioner meets this burden and proves that the claimant is able to perform other work which exists in the national economy, then the claimant is not disabled. 20 C.F.R. § 404.1520(f), 416.920(f).
The Commissioner's decision denying benefits will be disturbed only if it is based on legal error or it is not supported by substantial evidence in the record. Flaten v. Secretary of Health Human Serv's., 44 F.3d 1453, 1457 (9th Cir 1995). Substantial evidence is "more than a scintilla but less than a preponderance." Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir 1997). "Substantial evidence is relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion." Flaten, 44 F.3d at 1457. The court must weigh "both the evidence that supports and detracts from the [Commissioner]'s conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir 1986).
III. Analysis
The central issues in this appeal are whether Britton was disabled as a result of her depression, and whether her period of disability was sufficiently long-lasting to entitle her to payment of DIB or SSI. Britton challenges only one aspect of the ALJ's decision, namely that he failed to fully credit her testimony. Specifically, Britton asserts that the ALJ should have credited her testimony that she spent most of 1999 locked in her home, not eating, and staying in bed. The testimony Britton seeks to have credited is as follows:
Q: Okay. Well, what was — how were you doing after that first surgery, after the surgery in January 20th `99? How did you do in a day-to-day (INAUDIBLE)?
A: Basically, most of all last year, I was not functioning. I was locking myself in my house and not letting anybody in, family or friends, not taking care of myself, not eating, not going anywhere, just staying in bed all day.
Q: And why were you doing this?
A: The depression, a lot of what the — the physical, no energy, no — I was just down. I just could not seem to get back up.
Tr. 41.
ALJ Stewart found this testimony to be an exaggeration:
The claimant's reporting is not found to be fully credible. . . . Her testimony that she spent all of last year locked in her house, not eating and staying in bed all day is seen as an exaggeration.
Tr. 20.
The ALJ acknowledged that Britton may have had periods of extreme limitation, but did not find that those limitations were sufficiently disabling to entitle her to receive DIB or SSI. He provided the following explanation as to his reasons for discrediting Britton's testimony:
Other than the period surrounding her mastectomies and chemotherapy and overlapping with her fiancee's suicide, the record does not indicate that the claimant's affective disorder has created significant restriction of her activities of daily living. Furthermore, difficulties in maintaining social functioning and difficulties in maintaining concentration/persistence/pace are indicated by the specialist to be only mild, outside of the stressor periods noted above. Although the claimant has undergone some periods of depression due to situational factors the record does not show episodes of decompensation for extended duration and the record does not indicate that psychological impairments have created any repeated episodes of decompensation.
* * *
She has attended her medical appointments. Her medical practitioners have reported her to be well groomed and capable of both basic and advanced activities of daily living. It is understood that the claimant may have had periods, such as when she was undergoing chemotherapy, when she experienced extreme limitations. Recognition is given to the residuals of the multiple traumas the claimant has suffered, and the residual functional capacity assessment below is formulated accordingly. Nonetheless, recognition also is given to the fact that the claimant was functioning while living alone and has not taken advantage of counseling, although she has been treated with various medications to improve her symptoms.
Tr. 18-20.
As the ALJ pointed out, there is no doubt that at times Britton experienced a significant reduction in her activities. Numerous entries in the record reflect that Britton's activities were more limited when she was undergoing chemotherapy. See, e.g., Tr. 115 (questionnaire completed by Britton and her mother in April 1999, indicating that while Britton was undergoing chemotherapy, she was unable to drive); Tr. 117 (poor appetite); Tr. 117, 131, 134-35 (not doing her laundry, dusting, vacuuming, or cooking). However, other than the one statement by Britton about being locked in her home for "most of all last year" (Tr. 41), nothing in the record indicates that her periods of incapacity continued for such an extended period of time. In fact, Britton herself later testified that the period of time in which she isolated herself in her house was limited to the last two months of 1999 and the first month of 2000. Tr. 44.
Beginning in early 1999 with her diagnosis of breast cancer and continuing through May 2000, Britton was forced to deal with a series of significant stressors. She had a series of difficult surgeries including bilateral mastectomies and a hysterectomy, underwent repeated courses of chemotherapy, and endured the suicide of her boyfriend. However, this is not a case in which the ALJ simply rejected the claimant's testimony without providing any reasoning or explanation. To the contrary, the ALJ gave a lengthy explanation as to his reasons for discrediting Britton's testimony that she spent an entire year locked in her house. The record, which is replete with chart notes reflecting medical appointments between January 1999 and May 2000, supports the ALJ's observations that Britton apparently had only intermittent periods of restriction in her activities of daily living (coinciding with her chemotherapy sessions), was able to function independently, and kept numerous medical appointments without apparent difficulty. Given Britton's own later testimony which indicated that the time that she was "locked in" was only for a three month period, no basis exists to reverse the ALJ's decision discrediting Britton's earlier testimony that she spent an entire year locked in her house.
RECOMMENDATION
For the reasons stated above, the decision of Commissioner should be AFFIRMED.
SCHEDULING ORDER
Objections to the Findings and Recommendation, if any, are due August 20, 2001. If no objections are filed, then the Findings and Recommendation will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than September 7, 2001. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will be referred to a district court judge and go under advisement.