Opinion
No. 99-3040
January 10, 2000
ORDER
This cause is before the Court on the cross-motions for summary judgment.
I. BACKGROUND
Plaintiff Rosalie J. Cima (Cima) applied for Disability Insurance Benefits pursuant to 42 U.S.C. § 405(g) on May 1, 1996, alleging that she had been disabled since August 19, 1994. Her application was denied as was her motion for reconsideration. A hearing was held before Administrative Law (ALJ) Judge Barbara J. Welson on April 29, 1997. The ALJ held that Cima was not disabled because she could perform her past relevant work as well as a significant number of other jobs. The Appeals Council denied Cima's request for review. She brings her appeal in this Court.
II. EVIDENCE PRESENTED
A. Plaintiff's Testimony
At the hearing before the ALJ, Cima testified that she stopped working in August, 1994, at which time she was a receptionist in a hospital. She had previously held several clerical positions. Her last insured date was September 30, 1996, when she was 53 years old.
Cima also testified that she completed the 12th grade and could read. At the time of the hearing, she was taking medication for depression and for stomach problems. When asked the problems she had that kept her from working, she indicated that she had a problem with arthritis in one of her wrists that allowed her to use it only occasionally. She also testified that she had swelling in her left ankle and generalized "terrific" body pain. (Tr. 49). She testified that she was not then seeing a psychologist or counselor.
But she also testified that she usually woke up at 6:00 "because [she] knew it took [her] a while to get around." (Tr. 50) She additionally testified that she would wake up during the night and then get up around 8 or 9 o'clock. (Tr. 50). She would make coffee and then bathe and dress herself. She does her own laundry, shopped for her own groceries, and drove a vehicle 2 to 3 times per week.
The medical evidence includes reports from several physicians. Cima was seen by Drs. Fortin and Trapp in 1990 for right wrist pain. Both physicians noted some discomfort with flexion, but the musculoskeletal and neurological findings were normal.
In 1993, Dr. Killian, a Psychiatrist, diagnosed Cima as suffering from mild depression and prescribed Prozac. In 1994, Cima was examined for some "menopausal type" symptoms and hormonal therapy was discussed with her.
In 1994, Dr. Peck, a rheumatologist, diagnosed Cima as suffering from inflammation in right hand and wrist and he noted a history of situational depression.
A consultative examination was performed by Dr. Trello, a psychologist, in 1996. Dr. Trello diagnosed Cima as suffering from a Pain Disorder Associated with Psychological and Medical Condition. He noted that Cima would benefit from psychotherapy sessions. He did not indicate any specific limitations or impairments resulting from this depression.
In June, 1996, Dr. Chapa, also a consulting physician, examined Cima, who complained of bloating, weight gain, and aches. Dr. Chapa concluded that there was some swelling of Cima's right wrist but that she could perform fine and gross manipulations with both of her hands.
In March 1997, Dr. Coughlin, Cima's primary care physician, examined her and concluded that Cima did not have inflammatory arthritis. (Tr. 289). Dr. Pick, examined Cima around this same time and concluded that she did have some limitation of movement in her right hand. (Tr. 307). Dr. Pick diagnosed inflammatory arthritis of unknown cause. (Tr. 332).
In May 1997, after the hearing, Cima was assessed by counselors at the Springfield Health Center. She was diagnosed with a Depression Disorder, and it was concluded that this depression caused major difficulties with Cima's functioning.
Plaintiff does not contest the finding by the ALJ that Cima was limited by the problems with her right hand and wrist. Instead, Cima argues that the ALJ erred by failing to order a consultative psychological evaluation.
ANALYSIS
I. Standards
The district court does not conduct a de novo review. Rather, the court should determine only whether the ALJ's findings were supported by substantial evidence and whether the proper legal standards were applied. Pitts v. Sullivan, 923 F.2d 561, 564 (7th Cir. 1991).
The framework used to demonstrate the existence of a disability is well established. A plaintiff is required to present evidence of a medically determinable mental or physical impairment that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A). The Social Security regulations provide the well-known five step evaluation used to determine the existence of a disability. The steps are examined in order as follows:
1. Is the claimant presently employed?
2. Is the claimant's impairment "severe?"
3. Does the impairment meet or exceed one of a list of specified impairments?
4. Is the claimant able to perform his former work?
5. Is the claimant able to perform any other work in the national economy?
20 C.F.R. § 404.1520; 20 C.F.R. § 416.920; Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
If the claimant can satisfy steps one, two, and three, he "will automatically be found disabled." Knight, 55 F.3d at 313. If the claimant "satisfies steps one and two, but not three, then he must satisfy step four." Id. If the claimant satisfies step four, the burden shifts to the Commissioner to establish that the claimant is capable of performing other work in the national economy, i.e. step five. Id. If the Commissioner establishes that the claimant can perform other work in the national economy, DIB will be denied.
The dispute in this case involves the determination at steps four and five. The ALJ determined that Cima could perform her past relevant work as a court clerk, receptionist and food sales. Alternatively, the ALJ found that Cima could perform a significant number of other jobs in the national economy. (Tr. 27-28).
II. Consulting Expert
Cima argues that the ALJ erred by not ordering a consultative examination to determine the existence of a possible mental impairment. Cima argues that the findings of anxiety and depression necessitated a consultative examination. A consultative mental examination may be called for in the following situations:
A consultative examination may be purchased when the evidence as a whole, both medical and nonmedical, is not sufficient to support a decision on your claim. Other situations, including but not limited to the situations listed below, will normally require a consultative examination:
(1) The additional evidence needed is not contained in the records of your medical sources;
(2) The evidence that may have been available from your treating or other medical sources cannot be obtained for reasons beyond your control, such as death or noncooperation of a medical source;
(3) Highly technical or specialized medical evidence that we need is not available from your treating or other medical sources;
(4) A conflict, inconsistency, ambiguity or insufficiency in the evidence must be resolved, and we are unable to do so by recontacting your medical source. . . . 20 C.F.R. § 416.919(b).
The ALJ should order a consultative examination when it would be necessary to make a disability determination. Howell v. Sullivan, 950 F.2d 343, 348 (7th Cir. 1990) (citing Moon v. Sullivan, 923 F.2d 1175, 1183 (6th Cir. 1990); and Stambaugh v. Sullivan, 929 F.2d 292, 296 (7th Cir. 1991)). In Howell, the Court held that it was not necessary to order a consultative examination because the claimant had failed to come forward with objective medical evidence to support his claim that his alcoholism and depression resulted in any disabling condition.
Here, however, there was some objective evidence that supported the conclusions reached by Dr. Pick and Ms. Rose. Ms. Rose appears to have based her opinion on her first-hand observations of Cima and she appears to have applied the criteria indicating depression in reaching her conclusion that Cima would have severe difficulty functioning. (Tr. 325)
Similarly, Dr. Pick, while not a psychologist or psychiatrist, was one of Cima's treating physicians. He appears to have based his conclusion that Cima suffered from moderately severe depression on his observations of her and his evaluation of her symptoms.
Significantly, there are no medical sources that indicate Cima was not depressed. Those who considered this problem in any significant way all agreed in their conclusions that she was at least moderately depressed.
Nonetheless, the ALJ discounted these opinions for several reasons. First, she seemed to indicate that Cima's daily physical activities were inconsistent with her claim that she suffered from depression. Second, the ALJ found that the diagnoses of depression were unsupported by proper clinical evidence and were instead based entirely on Cima's subjective complaints.
The former conclusion seems to be foreclosed by the Seventh Circuit's precedents. See Rohan v. Chater, 98 F.3d 966, 970-71 (7th Cir. 1996); Wilder v. Chater, 64 F.3d 334, 337-38 (7th Cir. 1995). In Wilder, for instance, the Seventh Circuit panel found that the ALJ improperly discounted the only medical evidence of depression when he determined that the diagnosis of depression was inconsistent with a claimant's working as a security guard and carrying a gun. In Rohan, again the ALJ's decision denying disability was reversed because the ALJ improperly rejected a diagnosis of depression by finding that depression was inconsistent with a claimant's attempts at operating a lawn mower repair business.
Cases such as Rohan and Wilder seem to treat depression as almost a per se disability, so that even when a claimant is actually working or performing some normal daily activities, as was the claimant in Wilder, she may nonetheless be considered disabled. Thus, in this case it appears that the ALJ improperly discounted the diagnoses of depression on the basis that such a diagnosis was inconsistent with Cima's daily activities.
Further, it is not clear that the reports of Ms. Rose and Dr. Pick are properly said to be based only on subjective complaints. Indeed, it is hard to imagine what might form the basis for a diagnosis of a psychological problem other than speaking with a professional, since psychological phenomena such as depression are manifested by behavioral, including verbal, criteria. Of course, there are tests for determining that someone is depressed and there are criteria for determining that a patient is depressed. But here, Ms. Rose and Dr. Pick seem to have applied the appropriate criteria, even if they did not do so explicitly. At the least, a more thorough, explicit diagnosis was called for in this case to determine the exact extent that Cima's possible depression impacted her ability to function.
On the record before the Court, it appears that the ALJ lacked substantial evidence to reach a conclusion that Cima was not impaired as a result of a possible mental impairment. Thus, on remand, a consulting expert should examine Cima and determine whether she suffers from depression and the disabling effects, if any, of the depression.
III. Vocational Expert Questioning
Cima's other argument is that the ALJ failed to include her depression in the questions asked of the Vocational Expert. She argues that the "substantial evidence" of disability resulting from depression should have been included in the hypothetical questions that were asked by the ALJ.
An ALJ is not required to explicitly include every limitation in hypothetical questions, but is only required to frame questions such that the reviewing court is able to draw the conclusion that the ALJ considered the various impairments.Ragsdale v. Shalala, 53 F.3d 816, 820 (7th Cir. 1995). In this case, the ALJ determined that the alleged depression did not impact Cima significantly enough to add to her limitations. Thus, no mental impairments were included in the hypothetical questions posed by the ALJ to the Vocational Expert. On remand, after considering the opinions of the consulting expert, any limitations that are properly supported should be included in any hypothetical questions posed to the Vocational Expert.
CONCLUSION
The ALJ's decision that Cima is not disabled is not supported by substantial evidence in this case. A consultative mental evaluation should be ordered on remand in order to assist the ALJ to determine whether Cima suffers from depression and, if so, whether she also suffers any disabling effects of the depression.
Thus, the ALJ's decision is REVERSED AND REMANDED. Defendant's motion for summary judgment (d/e 7) is DENIED, and Plaintiff's motion for summary judgment (d/e 6) is ALLOWED.