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remanding case to the ALJ for consideration of VA disability rating
Summary of this case from Weers v. BarnhartOpinion
Case No. 99-4178-DES
September 28, 2001
MEMORANDUM AND ORDER
This matter is before the court on plaintiff's complaint (Doc. 1), requesting a reversal of the Social Security Commissioner's denial of disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. and for supplemental security benefits under Title XVI of the act, 42 U.S.C. § 1381 et seq. The court has reviewed the administrative record and the briefs for both parties and is now prepared to rule.
I. PROCEDURAL BACKGROUND
On December 31, 1996, plaintiff filed an application for disability insurance benefits under Title II of the Social Security Act and for supplemental security income benefits under Title XVI of the Social Security Act. 42 U.S.C. § 401 et seq.; 42 U.S.C. § 1381 et seq. The alleged onset date of disability was October 26, 1996. Plaintiff's application was denied initially and again denied after reconsideration. Plaintiff requested an administrative hearing, and on August 18, 1998, a hearing was conducted before an Administrative Law Judge ("ALJ"). On August 25, 1998, the ALJ rendered a decision unfavorable to plaintiff. Plaintiff requested a review of that decision by the Appeals Council. The Appeals Council denied the plaintiff's request for review. The ALJ's decision stands as the final decision of the Commissioner.
II. STANDARD OF REVIEW
The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides "the finding of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." Substantial evidence is more than a scintilla and is that evidence a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401-02 (1971). The court will also determine whether the Commissioner applied the correct legal standards. Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994).
During its review, however, the court will not reweigh the evidence or substitute its judgment for the Commissioner's. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). On the other hand, the court will not merely accept the Commissioner's findings. Claassen v. Heckler, 600 F. Supp. 1507, 1509 (D. Kan. 1985). Any new evidence not considered by the ALJ but submitted to the Appeals Council and considered in denying a request for review becomes part of the administrative record and will be considered by the court. O'Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994)
III. FACTUAL BACKGROUND
Plaintiff's date of birth is June 7, 1947. He has been married for over twenty-five years and has two adult children. Plaintiff lives with his family in Victoria, Kansas. Plaintiff completed his high school education and attended one year of college before being drafted for military enlistment. He was in the military from April 4, 1967, to January 21, 1969, and was stationed in Vietnam for twelve months as a combat engineer. In Vietnam, plaintiff's company was responsible for building bridges, base camps, roads, as well as blowing up bridges.
Plaintiff's last job was as a custodian at Fort Hays State University in Hays, Kansas. It was during his tenure at Fort Hays State University that plaintiff first sought treatment for rather horrific symptoms including intrusive thoughts and images relating to combat, panic attacks, nightmares, difficulty sleeping, hallucinations, olfactory hallucinations of burning flesh, and a persistent lack of interest in everyday life. (R. 276-78). After testing was conducted at the Veterans Administration Hospital in Topeka, Kansas, plaintiff was diagnosed with Post Traumatic Stress Disorder ("PTSD") on or around October 26, 1995. (R. 278). Plaintiff's PTSD was categorized as chronic and severe. At the time of initial diagnosis, plaintiff was given a ten percent disability rating by the Veteran' s Administration ("VA").
After his diagnosis, plaintiff began seeing Carol E. Padilla, M.D., once per month at the Veterans Hospital in Topeka. Plaintiff and his wife also attended therapy with Timothy P. Rot, Ph.D., once per month. Initially, due to work requirements, plaintiff was not involved in weekly group therapy sessions as recommended by his doctors. Plaintiff was unable to take the necessary time off work to make the three hour drive (in each direction) from his home in Victoria, Kansas, to the hospital in Topeka.
On October 26, 1996, one year after his initial diagnosis, the VA increased plaintiff's disability rating to 100 percent. (R. 282). Plaintiff quit his job at Fort Hays State University, and began attending the weekly group therapy sessions in Topeka with Mary L. Jackson, PCT Clinical Nurse Specialist. Plaintiff's wife drove him to Topeka for therapy because he lacks concentration when driving.
The medical records indicate plaintiff continued to suffer from anxiety, combat nightmares, difficulty concentrating, and panic attacks. (R. 276). Additionally, the medication prescribed by plaintiff's doctor provided additional challenges. Particularly, the medications caused confusion, slurred speech, and sedation. (R. 255, 257)
IV. ALJ'S DECISION
In his decision, the ALJ made the following findings:
A. The claimant met the disability insured status requirements of the Act on October 26, 1996, the date the claimant stated he became unable to work, and has acquired sufficient quarters of coverage to remain insured through at least December 31, 2000.
B. The claimant has not engaged in substantial gainful activity since October 26, 1996.
C. The medical evidence establishes that the claimant has post traumatic stress disorder, anxiety, and depression, impairments which are severe but which do not meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4.
D. The claimant's statements concerning his impairments and their impact on his ability to work are credible only insofar as they preclude work activity exceeding the residual functional capacity set forth below.
E. The claimant's residual functional capacity is such that he is moderately limited in his ability to understand, remember, and carry out detailed instructions; maintain attention and concentration for extended periods; complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; accept instruction and respond appropriately to criticism from supervisors; and get along with co-workers or peers without distracting them or exhibiting behavioral extremes.
F. In his past work as a maintenance/grounds worker, the claimant was required to perform work activity which exceeds his current residual functional capacity. However, as a custodian and envelope stuffer, as generally performed in the national economy, the claimant was required to understand, carry out and remember simple instructions; respond appropriately to supervision, co-workers, and usual work situations; and to deal with changes in a routine work setting.
G. The claimant's past relevant work as a custodian and envelope stuffer did not require the performance of work functions precluded by his medically determinable impairments.
H. The claimant's impairments do not prevent him from performing his past relevant work as a custodian and an envelope stuffer.
I. The claimant has not been under a disability, as defined in the Social Security Act, at any time through the date of this decision.
(R. 20)
I. DISCUSSION
A. Treating Physician's Opinion
Plaintiff contends the ALJ improperly rejected evidence presented by his treating physician, Carol Padilla, M.D. As plaintiff points out, a claimant's treating physician's opinion must be given substantial weight unless good cause is shown to disregard it. Goatcher v. United States Dep't of Health Human Servs., 52 F.3d 288, 289-90 (10th Cir. 1995). An ALJ can discount a treating physician's opinion if his or her conclusions are not supported by specific findings, are inconsistent with other substantial evidence in the record, or if the physician's records do not support the physician's conclusions. James v. United States Dep't of Health and Human Servs., 47 F.3d 1178 (10th Cir. 1995) (table); § Washington v. Shalala, 37 F.3d 1437, 1441 (10th Cir. 1994); 20 C.F.R. § 404.1527(d)(2). In this case, the ALJ found Dr. Padilla's opinions were not supported by the evidence and were in conflict with substantial evidence in the record-namely Nurse Jackson's therapy treatment notes.
Defendant contends the ALJ's decision to reject Dr. Padilla's findings were proper because her opinions were in conflict with notes written by Nurse Jackson, the nurse in charge of plaintiff's group therapy. Specifically, the ALJ rejected a letter written by Dr. Padilla dated July 1, 1998. The letter stated that plaintiff was not responding well to medication, he was unable to work and that he was having "difficulty engaging in his group therapy process because of his discomfort with others and his difficulty communicating and knowing his own feelings and thoughts." (R. 355) Nurse Jackson's notes, however, contain the following statements:
Vet is active group participant and works on various issues. He provided constructive feedback to others . . . . Has stabilized with medication.
. . . He is an active participant in group. He asks questions, offers feedback and brings up issues to work on. Interpersonal relationships, need to isolate and anger control remain significant issues for him.
Vet attended all sessions of Alpha group in April and 5-4. He continues to actively participate. He has work on issues of family relationships and symptom management.
(R. 336, 339, 342)
The court finds the inconsistencies between Nurse Jackson's notes and Dr. Padilla's letter can be reconciled. First, Nurse Jackson's notes are based on her observations of plaintiff in a group therapy setting and do not necessarily address plaintiff's symptoms. The notes do not discuss plaintiff's panic attacks, anxiety, agoraphobia, nightmares, or inability to sleep. Dr. Padilla's opinion, however, is a medical conclusion based on her communication with plaintiff and her evaluation of his symptoms. Dr. Padilla was certainly in a better position to evaluate plaintiff's response to medication than Nurse Jackson as Dr. Padilla was the treating physician and was solely responsible for plaintiff's medication. Additionally, a letter written by Nurse Jackson to the Appeals Council stated that her notes had been "misconstrued" by the ALJ (R. 361). Nurse Jackson's letter stated plaintiff's symptoms remain quite severe and "[h]is ability to interact with peers, in the relative safety of a therapy group, is quite different than interacting with the public at large." (R. 361). Nurse Jackson made her opinion clear by stating," [i]n no way, do I deem Mr. Dreiling as able to work gainfully in a traditional work setting." (R. 361). Nurse Jackson's letter substantiates Dr. Padilla's findings. Although this letter was not available to the ALJ, it was available to the Appeals Council and became part of the record in which the court reviews. O'Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994)
Second, defendant argues Dr. Padilla's opinions are not supported by the medical record. The court disagrees. The ALJ found that a letter written by Dr. Padilla in September of 1996 indicating plaintiff was able to maintain his employment because his job as a custodian allowed him to work mostly on his own, contradicted her letter written July 1, 1998, indicating that plaintiff was unable to work. (R. 248). Plaintiff did work for almost one year after he was diagnosed with PTSD. As indicated by the medical records, however, working became very difficult. First, in Dr. Padilla's September 5, 1996, letter she stated although plaintiff has been working, it had been "very difficult." Additionally, in plaintiff's disability rating report, the VA found "it was very difficult for [plaintiff] to maintain employment." (R. 282)
Contrary to defendant's assertion, there are numerous references in the medical records consistent with Dr. Padilla's July 1998 letter. For example, the following notes were written by Dr. Padilla during the course of plaintiff's treatment: (1) "Patient reports he is sleeping better on the lorazepam but his overall anxiety and panics are unimproved." (R. 262); (2) "Patient and wife report that everything is essentially unchanged. He continues to have severe nightmares and fitful sleep . . . He continues anxious, depressed." (R. 262); (3) "His wife describes nightmares in which he awakens other family members with his screaming and he complains, not only of frequent awakenings, but also of so much muscle tension when he gets up that he is sore and fatigued." (R. 258); (4) "His wife and he continue to report severe nightmares and insomnia." (R. 257); (5) "Patient reports doing OK except for ongoing, severe panic symptoms." (R. 254); (6) "His wife reports that lately he has sometimes seemed worse than he did even before he came to treatment." (R. 252). Additionally, the following notes written by Tim Rot, Ph.D., one of the doctors plaintiff met with monthly, lends further credence to Dr. Padilla's opinions: (1) "Met with Mike and his wife. The focus was on how he gets extremely nervous and has trouble then saying to anyone what is really going on inside him." (R. 259); (2) "He has intrusive thoughts that affect him daily, nightmares that disturb his sleep, angry responses that come about for no particular reason, irritability, anxiety, concentration difficulties, and isolation from others." (R. 262)
Clearly Dr. Padilla's opinion are not inconsistent with other substantial evidence in the record and her opinions are supported by the medical record. Nurse Jackson's group therapy notes were written in a different context with a different goal in mind. It can not be said that the inconsistencies between Dr. Padilla's notes and the therapy notes written by Nurse Jackson render Dr. Padilla's opinion unreconcilable with substantial evidence in the record. Furthermore, after the ALJ's decision, Nurse Jackson's letter clarified her notes and echoed Dr. Padilla's sentiments regarding plaintiff' s condition.
The court finds there is substantial evidence in the record supporting Dr. Padilla's findings, and her opinions are not in conflict with the medical records. Thus, the ALJ had no basis for rejecting Dr. Padilla's opinion. This case must be remanded so Dr. Padilla's opinions may be accorded "substantial weight" in the determination of whether plaintiff is entitled to benefits.
B. Veteran Administration's 100 Percent Disability Rating
Plaintiff contends that the ALJ erred by not properly considering the 100 percent disability rating assigned to him by the VA. The VA rated plaintiff as 100 percent disabled on October 3, 1996, due to his PTSD. The VA's rating decision indicates that a 100 percent rating is assigned for any of the following three reasons: (1) "[T]he attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community." (2) "Totally incapacitating psychoneurotic symptoms such as fantasy, confusion, panic, and explosions of aggressive energy with disturbed thought or behavioral processes border on gross repudiation of reality resulting in profound retreat from mature behavior." (3) "[Veteran is unable] to secure or follow a substantially gainful occupation." (R. 282). The VA's rating report explained plaintiff suffered from a severe and chronic case of PTSD. The VA found his symptoms included "intrusive thoughts, angry outbursts, difficulty concentrating, nightmares, depression and anxiety. (R.282). Additionally, the VA found plaintiff suffers from exaggerated startle response and periods of amnesia. (R. 282) Finally, the VA's rating decision found it had been "very difficult for [plaintiff] to maintain employment."
In his written decision, the ALJ mentioned the VA's disability rating only briefly. The ALJ stated only that "the VA increased the claimant's disability rating to 100 percent" and that plaintiff quit working after he was given a 100 percent disability rating. (R. 13, 18). The ALJ failed to discuss whether the VA's disability rating was considered in his decision and whether it was accorded any weight.
The Tenth Circuit has held while an ALJ is not bound by the VA's disability rating, the ALJ should consider the VA's disability rating in making his or her decision. Baca v. Department of Health and Human Servs., 5 F.3d 476, 480 (10th Cir. 1993) (citing Fowler v. Califano, 596 F.2d 600, 603 (3d Cir. 1979) (holding findings by other agencies "are entitled to weight and must be considered")); See also Richter v. Chater, 900 F. Supp. 1531, 1538-39 (D. Kan. 1995) (finding it is "beyond dispute" in the Tenth Circuit another agency's finding of disability "must be considered and given some weight"); Thomas v. Weinberger, 398 F. Supp. 1035, 1036 (D. Kan. 1975) ("100 [percent] disability benefits from Veterans Administration would be persuasive of the fact of disability").
Based on the record, the court is unable to determine whether the ALJ considered the VA's disability rating and if so, whether it was accorded the proper weight. The court must remand the case for an application of the proper legal standard with respect to this evidence. Richter, 900 F. Supp. at 1539. On remand the ALJ shall consider the VA's 100 percent disability rating and give it at least some weight. This may require the ALJ to determine the factual basis and medical evidence on which the VA's finding of disability was made. Id. (citing Baca, 5 F.3d at 479-80)
VI. CONCLUSION
After considering the record before it, the court finds this case must be remanded. First, the court finds the ALJ did not show good cause to disregard the opinions of Dr. Padilla, plaintiff's treating physician. On remand, Dr. Padilla opinions shall be given substantial weight in the determination of whether plaintiff is entitled to benefits as required by Tenth Circuit precedent. Goatcher, 52 F.3d at 289-90. Second, the court finds the ALJ either did not consider the VA's 100 percent disability rating assigned to plaintiff or the ALJ did not properly document his consideration of such evidence. In either event, on remand the VA's disability rating must be considered by the ALJ and must be given at least some weight. Baca, 5 F.3d at 480.
Because this case has been remanded on the two issues above, the court finds it unnecessary to examine the other issues presented by plaintiff.
IT IS THEREFORE BY THIS COURT ORDERED that the Commissioner's decision is reversed, and the case is remanded to the Commissioner for additional proceedings consistent with this opinion.