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Delmas v. Barnhart

United States District Court, N.D. Indiana, Fort Wayne Division
Apr 14, 2005
Cause No. 1:04-CV-181 (N.D. Ind. Apr. 14, 2005)

Opinion

Cause No. 1:04-CV-181.

April 14, 2005


OPINION AND ORDER


I. INTRODUCTION

This matter is before the Court for review of the final decision of the Commissioner of Social Security, denying Sheryl Delmas's application for Disability Insurance Benefits ("DIB").

All parties have consented to the Magistrate Judge. See 28 U.S.C. § 636(c).

For the following reasons, the Commissioner's final decision will be REVERSED and REMANDED for rehearing.

II. FACTUAL AND PROCEDURAL BACKGROUND A. Facts

The administrative record in this case is voluminous (982 pages), and the parties' disputes involve only small portions of it. Therefore, in the interest of brevity, this opinion recounts only the portions of the record necessary to the decision.

At the time of her application for DIB, Delmas was approximately thirty years old and had a ninth-grade education. (Tr. 194, 304.) She had previously worked as a nurse aide, pretzel maker, child-care worker, and factory worker. (Tr. 299.)

There is some uncertainty about Delmas's age, as she has reported different birthdays to different examiners; however, these discrepancies are immaterial here.

Delmas alleges disability due to "headaches, seizure disorder, low back pain, Borderline Intellectual Functioning/Mild Mental Retardation, Cognitive Disorder NOS, Amnestic Disorder, Generalized Anxiety Disorder, Post Traumatic Stress Disorder, Dysthymia, Pain Disorder Associated with General Medical Condition, [and] possible Somatoform Disorder." (Op. Br. of Pl. at 3 (footnotes omitted).)

The parties agree that Delmas is subject to certain physical limitations; for instance, she cannot lift more than fifty pounds occasionally or more than twenty-five pounds frequently, and she cannot sit, walk, or stand for more than six hours in an eight-hour day. (Tr. 30.) The major disputes before this Court, however, concern her alleged intellectual and emotional limitations.

Delmas has undergone several psychiatric evaluations, including one performed by Dr. Wayne J. Von Bargen. ( See Tr. 605-13.) Dr. Von Bargen examined Delmas on February 3, 1998, at the request of Social Security. He interviewed her at some length and then administered psychological testing, including the Minnesota Multiphasic Personality Inventory-2, or MMPI-2.

Dr. Von Bargen prefaced his conclusions with a cautionary note, conceding that Delmas's MMPI-2 results were of "questionable validity." (Tr. 607.) Specifically, he suspected that Delmas may have exaggerated her symptoms, "had difficulty understanding test items," or have been "suffering severe neurosis and emotional distress." ( Id.) Accordingly, he warned that his conclusions "should be viewed with some caution." ( Id.) Those caveats aside, Dr. Von Bargen diagnosed Delmas with several conditions, including "Probable Borderline Intellectual Functioning" and "Possible Somatoform Disorder." ( Id.) He also opined that Delmas is unable to (1) function independently; (2) maintain attention or concentration; or (3) understand, remember, and carry out complex job instructions; at least, she cannot do these things "on a sustained basis," such as throughout a forty-hour work week. (Tr. 612.)

Somatoform Disorders are typified by "the presence of physical symptoms that suggest a general medical condition . . . and are not fully explained by a general medical condition, by the direct effects of a substance, or by another mental disorder." Diagnostic and Statistical Manual of Mental Disorders 485 (4th ed. 2000). Somatoform Disorders are distinguished from Factitious Disorders and Malingering, because the former involve physical symptoms which are not "under voluntary control." Id.

Delmas was later examined by three other mental health physicians, none of whom diagnosed her with Somatoform Disorder, nor even suggested the possibility. ( See Tr. 625-26, 652, 926.)

At least one of these three examining physicians, Dr. Fred B. Lipovitch, examined Delmas not at the request of Social Security, but at the request of the Wells County Department of Family and Children, which had challenged Delmas's custody of her children. (Tr. 650; see Tr. 617.) After examination, Dr. Lipovitch found that Delmas, contrary to Dr. Von Bargen's findings, (1) has "average" intelligence; (2) can concentrate "within normal limits"; (3) has "adequate" immediate retention, short-term memory, and long-term memory; and (4) "show[s] rational and appropriate decision-making." (Tr. 651-52.)

Delmas has a long, consistent history of lying to doctors and exaggerating her symptoms when it suits her purposes, particularly to sate her addiction to pain medication. Her family doctor described her as a "pathologic prevaricator" (Tr. 948), and another doctor suspects her of stealing pain medication from his office (Tr. 953). She has made scores of appearances in various emergency rooms seeking pain medication, including twenty-six ER visits in 1997 alone, and she has frequently lied to doctors about her condition or her recent use of medication, in attempts to secure more painkillers. ( E.g., Tr. at 336, 824, 832, 952, 953, 962, 971.) A social worker who made frequent visits to Delmas's home also suspects her of repeated dishonesty. (Tr. 630.)

B. Procedural History

Delmas originally filed for DIB on March 7, 1996. Bryan Bernstein, an administrative law judge ("ALJ"), conducted a hearing on December 30, 1997, and rendered an unfavorable opinion on September 5, 1998. Delmas sought review before the Appeals Council, which vacated and remanded the ALJ's decision on November 27, 2000. The ALJ conducted a second hearing on June 5, 2002, and again denied Delmas's claim on June 13, 2003. The Appeals Council affirmed this decision on March 13, 2004, making it the final decision of the Commissioner. Delmas filed the instant suit, seeking review of the Commissioner's decision, on May 7, 2004, and the matter is now fully briefed.

III. STANDARD OF REVIEW

Section 405(g) of the Social Security Act ("the Act") grants this Court "the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the case for a rehearing." 42 U.S.C. § 405(g).

The ALJ's decision must be sustained if it is supported by substantial evidence. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The decision will be reversed only if it is not supported by substantial evidence or if the ALJ applied an erroneous legal standard. Id.

Under this standard, the Court reviews the entire administrative record, but does not reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute its judgment for the Commissioner's. Id. Nonetheless, "substantial evidence" review should not be a simple rubber-stamp of the Commissioner's decision. Id.

IV. DISCUSSION A. Legal Framework and the ALJ's Decision

Under the Act, a plaintiff is entitled to DIB if she establishes 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. § 416(i)(1); 42 U.S.C. § 423(d)(1)(A). A physical or mental impairment is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).

In determining whether Delmas is disabled as defined by the Act, the ALJ conducted the familiar five-step analytical process, which required him to consider the following issues, in sequence: (1) whether the claimant is unemployed; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals one of the impairments listed by the Commissioner, see 20 C.F.R. § 404, Subpt. P, App. 1; (4) whether the claimant is unable to perform her past work; and (5) whether the claimant is incapable of performing work in the national economy. See Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001); Social Security Practice Guide § 13.01[2] (Matthew Bender 2003). An affirmative answer leads either to the next step or, on steps three and five, to a finding that the claimant is disabled. Zalewski v. Heckler, 760 F.2d 160, 162 n. 2 (7th Cir. 1985). A negative answer at any point other than step three stops the inquiry and leads to a finding that the claimant is not disabled. Id. The burden of proof lies with the claimant on every step except the fifth, where it shifts to the Commissioner. Clifford, 227 F.3d at 868.

Before performing steps four and five, the ALJ must determine the claimant's residual functional capacity ("RFC"), or what tasks the claimant can do despite her limitations. 20 C.F.R §§ 404.1520(e), 404.1545(a). The RFC is then used during steps four and five to help determine what, if any, employment the claimant is capable of. 20 C.F.R. § 404.1520(e).

In this case, the ALJ found at step one that Delmas had "engaged in substantial gainful activity" since the onset of her alleged disability. (Tr. 22.) This finding alone would have been enough to deny her claim, but the ALJ considered the other four steps nonetheless. He found in Delmas's favor on step two, but found that she did not meet a listing at step three. He then found the following RFC for Delmas:

The claimant has a residual functional capacity to perform the requirements of work. The claimant is obese. Her back hurts and she experiences emotional problems associated with the poor choices she makes in her life. The medical evidence supports a finding that the claimant has chronic lumbar strain that prevents the claimant from lifting more than 50 pounds occasionally and 25 pounds frequently, but there is no evidence that shows she cannot do medium or lighter work. Her gait and station are normal. She can sit for six hours per eight hour workday and walk and/or stand for six hours per workday.

(Tr. 30.) The ALJ also found that Delmas has "an anxiety disorder that prevents her from performing work with intense public contact or work with a closely regimented pace of production." (Tr. 35.) Based on that RFC, the ALJ determined at step four that Delmas could perform her past relevant work as an "order picker" or "order filler." (Tr. 39.) Again, this finding alone was sufficient to deny Delmas's claim, but the ALJ went on to step five, where he determined that Delmas is capable of performing work in the national economy. (Tr. 40.)

In sum, the ALJ ruled against Delmas at steps one, four, and five, any one of which is alone sufficient to defeat her claim for DIB. However, as detailed infra, none of these three rulings is supported by substantial evidence, because (1) the ALJ's step-one ruling is based on a misstatement of the record and a conclusory legal analysis; (2) the step-four ruling is contradictory to other portions of the ALJ's opinion and fails to account for Delmas's mental limitations; and (3) the ALJ failed to comply with Social Security Ruling 83-14 at step five. Accordingly, the Commissioner's decision will be reversed and remanded.

B. The ALJ's Ruling at Step One Is Not Supported by Substantial Evidence

A claimant is not entitled to DIB if she has engaged in substantial gainful activity ("SGA") since the onset of her disability. One way the Commissioner determines whether a claimant has engaged in SGA is by considering the claimant's average monthly wages; if those wages exceed certain amounts specified in Social Security regulations, see 20 C.F.R. § 404.1574, there is a rebuttable presumption that the claimant has engaged in SGA. E.g., Jones v. Shalala, 21 F.3d 191, 192 (7th Cir. 1994).

Here, the ALJ's entire analysis at step one was as follows:

At the hearing in June 2002, the claimant said she could not remember her past work. The claimant alleged that she became disabled in late 1995; she applied for Supplemental Security Income benefits in July 1996. She reported working as an order picker in 1998 for "Payton's." Staffmark, a temporary employer, indicated she earned over $3,800 in 1999 (Exhibit 3D) for work in five months. The Social Security Administration's detailed earnings report is [ sic] does not register the same total amount acknowledged by the employer. In 2000, the SSA earnings report indicates the same employer paid the claimant over $4,000; in 2001, the amount of earnings exceeded $7,600. This supports a finding that the claimant has not demonstrated that she has not performed substantial gainful activity during the relevant period. This is not a favorable finding at Step One.

(Tr. 22.) The most obvious problem with this analysis is that it is utterly conclusory — it does not explain what wage levels are sufficient to find SGA, nor does it explain how Delmas's earnings exceed those levels. Thus, the ALJ failed here in his duty to "build an accurate and logical bridge between the evidence and the result." E.g., Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir. 2000) (internal quote marks omitted).

But even more troubling is that the wage figures cited by the ALJ are not supported by the record. The ALJ cited only "Exhibit 3D" and "[t]he Social Security Administration's detailed earnings report" to support the figures, but neither of those documents shows any wages for Delmas in 1999, 2000, or 2001. ( See Tr. 199-205.) The only portion of the record which could possibly support the ALJ's findings is a form completed by Delmas, where she indicated earning $3,325 in 1999, $3,820 in 2000, and $7,689 in 2001, all from her self-employment providing child-care services with the help of her two daughters. (Tr. 299.) However, even if these are the wages that the ALJ was referring to, his legal analysis is still woefully inadequate. The work activity of a claimant who is self-employed is evaluated differently than that of a claimant who is an employee, compare 20 C.F.R. § 404.1574 with 20 C.F.R. § 404.1575, and the ALJ appears to have incorrectly treated her as an employee, as he referenced wages which her "employer paid" (Tr. 22).

In making his decision, the ALJ is required to articulate, at some minimum level, his analysis of the evidence. Dixon, 270 F.3d at 1176. Here, the ALJ failed to do so, as both his analysis and his evidence were faulty. Accordingly, the ALJ's decision at step one is not supported by substantial evidence, and thus it cannot be a basis for denying Delmas's claim.

In her response brief, the Commissioner declines to defend the ALJ's step-one decision; she instead argues that any error was harmless, given the ALJ's alternate finding at step five that Delmas can perform work in the national economy. (Mem. in Supp. of the Commissioner's Decision at 8-9.)

C. The ALJ's Ruling at Step Four Is Not Supported by Substantial Evidence

At step four, the ALJ is required to compare the limitations described in the claimant's RFC "with the physical and mental demands of [the claimant's] past relevant work." 20 C.F.R. § 404.1520(f). If that comparison reveals that the claimant is able to perform her past relevant work, then the claimant is not "disabled" within the meaning of the Act and is not entitled to DIB. Id. Here, the ALJ found that Delmas "has the capacity to perform [her] past work" as an "order picker" or "order filler." (Tr. 39.)

There are two major flaws with the ALJ's conclusion at step four. First, earlier in his opinion, he stated that Delmas "has no vocationally relevant past work experience." (Tr. 22.) In other words, the ALJ found that a person with "no vocationally relevant past work experience" (Tr. 22) nonetheless "has the capacity to perform [her] past work" (Tr. 39). This contradiction cries out for an explanation, but the ALJ did not offer one.

Second, the ALJ did not adequately consider Delmas's mental limitations. As part of the RFC, the ALJ found that Delmas cannot perform "work with intense public contact or work with a closely regimented pace of production." (Tr. 35.) But his determination at step four did not take these limitations into account; rather, the ALJ simply stated that Delmas "can engage in the exertional demands" of her past relevant work and that "her other limitations do not erode the non-exertional features of `order filler.'" (Tr. 39.) This conclusory explanation does not consider whether an "order filler" is required to perform "work with intense public contact or work with a closely regimented pace of production," and the Court's review of the record does not reveal any testimony by vocational experts that sheds light on the issue.

For both of these reasons, the ALJ failed to build "an accurate and logical bridge between the evidence and the result." E.g., Shramek, 226 F.3d at 811. Thus, his determination at step four was not supported by substantial evidence, and it cannot be a basis for denying Delmas's claim.

Again, the Commissioner declined to justify the ALJ's step-four decision, relying instead on his alternate finding at step five. (Mem. in Supp. at 16.)

D. The ALJ Failed to Comply with SSR 83-14 at Step Five

Social Security Ruling 83-14 requires that:

Whenever a vocational resource is used and an individual is found to be not disabled, the [ALJ's] determination or decision will include (1) citations of examples of occupations/jobs the person can do functionally and vocationally and (2) a statement of the incidence of such work in the region in which the individual resides or in several regions of the country.

Here, the ALJ used "a vocational resource" — testimony from a vocational expert (Tr. 129-34) — but failed to include examples of jobs that Delmas can perform, as required by the ruling. Instead, he only found that Delmas can perform "50,000 unskilled, medium jobs. . . . 10,000 light, unskilled jobs, and 1,500 sedentary, unskilled jobs" existing in this region. (Tr. 40.) This failure to comply with SSR 83-14 is a legal error which requires remand. Prince v. Sullivan, 933 F.2d 598, 603 (7th Cir. 1991); Schmoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980) ("When the [Commissioner] . . . commits an error of law, reversal is, of course, warranted irrespective of the volume of evidence supporting the findings.")

The Commissioner argues that the ALJ's error should be overlooked, as "the Seventh Circuit has trended away from requiring ALJs to strictly adhere to the mechanical requirements of Social Security Rulings when the ALJ's findings are well supported" and the claimant is not prejudiced. (Mem. in Supp. at 17.) The only case the Commissioner cites to support this "trend" is Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004), where the Seventh Circuit held that the ALJ's failure to consider a claimant's obesity, as required by SSR 00-3p, did not necessitate a remand. However, the Skarbek court's primary reason for this holding was that the claimant did not "specify how his obesity further impaired his ability to work, but speculate[d] merely that his weight makes it more difficult to stand and walk." Id. In other words, Skarbek did not excuse the ALJ's failure to follow the ruling as some sort of harmless error; rather, it held that the claimant failed to show that the ruling should apply at all. Thus, Skarbek does not represent the "trend" the Commissioner urges.

Skarbek also noted that the ALJ adopted limitations recommended by doctors who were aware of the claimant's obesity, and thus the obesity "was factored indirectly into the ALJ's opinion." Id. The Commissioner seizes on this, arguing that because the ALJ here heard testimony from vocational experts who cited specific jobs Delmas can perform, his failure to mention those jobs in his opinion is excusable. This comparison is not persuasive. SSR 00-3p, which Skarbek concerned, only requires the ALJ to "consider" obesity at certain points in the five-step process, and the court was able to infer from the ALJ's opinion that he had considered it sufficiently. Id. In contrast, SSR 83-14 explicitly requires the ALJ to "include" specific information in his opinion, which he undisputedly did not. Therefore, Skarbek offers the Commissioner no relief here.

The Commissioner also asserts that the "harsh result" of a remand "was not intended by SSR 83-14." The Court is not sympathetic. If the Commissioner believes that SSR 83-14 creates "harsh results," she is free to rescind or amend it. Until then, this Court "will hold ALJs to the requirements set out in that ruling by the [Commissioner]." Prince, 933 F.2d at 603. Moreover, this ruling should come as no surprise to the Commissioner — this case is the fourth time in the last two years that the undersigned has reversed the same ALJ for failure to comply with SSR 83-14. See Cooper v. Barnhart, 1:04-CV-018, at *12-14 (N.D. Ind. September 28, 2004) (Cosbey, Magis. J.); Mitchell v. Barnhart, 1:03-CV-012, at *12-15 (N.D. Ind. August 29, 2003) (Cosbey, Magis. J.); Lovellette v. Barnhart, 1:02-CV-278, 2003 WL 21918642, at *11-12 (N.D. Ind. June 25, 2003) (Cosbey, Magis. J.). Unfortunately, this ALJ's failure to heed SSR 83-14's simple requirements has again created a legal error that requires remand. Prince, 933 F.2d at 603.

V. CONCLUSION

The Court does not relish remanding Delmas's claim for further consideration, particularly given her well-documented history of deceit and the fact that her claim has been bouncing around the system for nearly a decade. But regardless of the merits of her claim or the length of time it takes to properly consider it, she is at least entitled to an opinion which is supported by substantial evidence and free of legal errors. As detailed supra, none of the ALJ's three alternate rationales for denying Delmas's claim — step one, step four, or step five — meet that standard. Therefore, the Commissioner's decision is REVERSED and REMANDED for further proceedings consistent with this opinion.

Delmas makes two other arguments for remand, neither of which is persuasive.
Delmas claims that the ALJ "played doctor" by improperly rejecting the opinion of Dr. Von Bargen, who found that Delmas cannot function independently, behave in an emotionally stable manner, or demonstrate reliability (Tr. 612-613); these limitations, if accepted, would likely prevent Delmas from performing any work at all (Tr. 133). But the ALJ concluded, quite reasonably, that Dr. Von Bargen's conclusions were unreliable, as they were largely based on his interview of Delmas, who has a known propensity to lie to and manipulate medical professionals to get what she wants. E.g., Dixon, 270 F.3d at 1178 ("An ALJ may properly reject a doctor's opinion if it appears to be based on a claimant's exaggerated subjective allegations.") The ALJ also explained that Delmas has demonstrated much greater intelligence, stability, and reliability for other doctors when it suited her purposes, such as when she was fighting for custody of her children. The ALJ thus credited the findings of those doctors (such as Dr. Lipovitch) over the findings of Dr. Von Bargen, as he was entitled to do. See id.
Delmas also claims that the ALJ failed to develop a full record because he did not "seek expert opinion on . . . and consider a possible Somatoform disorder" even though Dr. Von Bargen diagnosed it. (Op. Br. at 33 (citing 20 C.F.R. § 416.929(b) (stating that the Commissioner will consider the possibility of Somatoform Disorder if the evidence suggests that it exists)).) It is questionable whether the ALJ had a duty to consider Somatoform Disorder, as Delmas did not raise the issue at the second hearing; she only urged it on the ALJ the first time around. ( See Tr. 287.) It is Delmas's burden to produce evidence and make arguments that support her claim of disability, not the ALJ's. E.g., Howell v. Sullivan, 950 F.2d 343, 348 (7th Cir. 1991). But in any event, the ALJ was entitled to disregard Dr. Von Bargen's diagnosis of possible Somatoform Disorder because, as just explained supra, he was entitled to disregard Dr. Von Bargen's opinions in their entirety.
For these reasons, the Court rejects Delmas's two alternate arguments.


Summaries of

Delmas v. Barnhart

United States District Court, N.D. Indiana, Fort Wayne Division
Apr 14, 2005
Cause No. 1:04-CV-181 (N.D. Ind. Apr. 14, 2005)
Case details for

Delmas v. Barnhart

Case Details

Full title:SHERYL DELMAS, Plaintiff, v. JO ANNE B. BARNHART, Commissioner of Social…

Court:United States District Court, N.D. Indiana, Fort Wayne Division

Date published: Apr 14, 2005

Citations

Cause No. 1:04-CV-181 (N.D. Ind. Apr. 14, 2005)