Summary
In Flugum v. Apfel, No. C 99-3056-MWB (N.D.Iowa), plaintiff Stephen C. Flugum seeks review of denial of his application for SSI and DI benefits for a disability beginning on December 31, 1991. Flugum contends that he has a disability caused by mental health problems that, among other things, involve suicidal tendencies and make it difficult for him to deal with people.
Summary of this case from McPherson v. ApfelOpinion
No. C99-3056-MWB
August 16, 2000
AMENDED and SUBSTITUTED
REPORT AND RECOMMENDATION I. INTRODUCTION
The plaintiff, Stephen C. Flugum ("Flugum"), appeals the denial by the administrative law judge ("ALJ") of Title XVI supplemental security income ("SSI") and Title II disability insurance ("SSD") benefits. Flugum argues (1) the ALJ's decision that Flugum is able to perform substantial gainful activity is not supported by substantial evidence, and (2) the ALJ failed to properly credit Flugum's subjective pain complaints. Thus, Flugum argues he is entitled to an award of SSI and SSD benefits.
II. PROCEDURAL AND FACTUAL BACKGROUND A. Procedural Background
Flugum filed an application for both SSI and SSD benefits on June 1, 1995, alleging an onset of disability as of December 31, 1991. (R. at 118-20) The application was denied initially on August 24, 1995 (R. at 101-07), and on reconsideration (R. at 93-98). Flugum then requested a hearing, which was held before ALJ Jean M. Ingrassia on July 14, 1996. Ann Hoffmaster, a paralegal with Legal Services Corporation, represented Flugum at the hearing. Flugum and his pastor, Randy Shustak, testified at the hearing. No record of the hearing is available.
On August 30, 1996, the ALJ ruled Flugum was not entitled to SSI or SSD benefits (R. at 234-48), but the case was remanded for a new hearing by the Appeals Council of the Social Security Administration with instructions that the ALJ evaluate Flugum's mental impairments, reconsider his maximum residual functional capacity, and obtain further evidence to clarify the nature and severity of his impairments. (R. at 280-83) A consultative psychological evaluation was completed by Steve Gordon, Ph.D. on December 12, 1997, and then a second hearing was held before ALJ Ingrassia on April 15, 1998. (R. at 51-90) Flugum again was represented by Ann Hoffmaster. Flugum and Vocational Expert ("VE") Marian S. Jacobs testified at the hearing. On July 27, 1998, the ALJ again ruled Flugum was not entitled to SSI or SSD benefits. (R. at 11-29) Flugum's request for review was denied by the Appeals Council on May 28, 1999 (R. at 6-7), making the ALJ's decision the final decision of the Commissioner.
Flugum filed a timely complaint on July 26, 1999, seeking judicial review of the ALJ's ruling. (Doc. No. 1) In accordance with Administrative Order #1447, Chief Judge Mark W. Bennett referred this matter to the undersigned United States Magistrate Judge for the filing of a report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B). Flugum filed a brief supporting his claim on January 18, 2000. (Doc. No. 9) On March 10, 2000, the Commissioner of Social Security filed his brief. (Doc. No. 12) The court now deems the matter fully submitted, and turns to a review, pursuant to 42 U.S.C. § 405(g), of Flugum's application for benefits.
B. Factual Background1. Introductory facts and Flugum's daily activities
Flugum is seeking SSI and SSD benefits for a disability beginning on December 31, 1991, caused by mental health problems. At the time of the hearing in April 1998, Flugum was fifty-one years old. He had a G.E.D., two years of business education at North Iowa Area Community College, and a cooking diploma from Minneapolis Technical Institute. (R. at 55-56)
According to Flugum, he suffers from serious psychiatric problems that began when he was a small child. He first was hospitalized for these problems when he was fifteen years old, and then was treated or hospitalized, or both, repeatedly throughout his life. (R. at 61) Flugum worked intermittently at various jobs (R. at 299), but testified he had trouble keeping a job because, "It just seemed like I've never been able to get along with people as far back as I can remember." (R. at 57) He stated that because of extreme anxiety, depression, and hopelessness, his temper would get out of hand quickly and without warning. (R. at 59) He described a recent incident where he had pointed a loaded shotgun at his father, with whom he was living. (R. at 60) Since that incident, Flugum has stopped using alcohol and non-prescribed drugs. (R. at 61)
Flugum's only friend is a "lady friend" he sees occasionally who "knows what it's like to be abused all her life and have difficulties and stuff like that." (R. at 62-63) He used to go to the YMCA and to church, but he stopped those activities because it was too hard for him to deal with people. (R. at 63)
Flugum described his daily activities as watching television, doing laundry, fixing the noon meal, washing and waxing the floors, mowing the lawn, trimming trees, and spending time in a makeshift shop listening to the radio. (R. at 64-65) He testified that he has problems with concentration and memory. (R. at 65) He also has problems finishing tasks because of "that frustration and what's the use kind of thing comes over like a tidal wave that I just can't, I can't seem to fight it." (R. at 66) Flugum testified he had been living with alcohol and drinking problems from the age of sixteen. (R. at 69)
Flugum has held various jobs over his lifetime, mostly on a short-term basis, and usually as a cook. He left those jobs due to his inability to get along with his coworkers and supervisors. (R. at 56-57) The ALJ asked Flugum why he could not work as a cook, and he responded:
Because it's difficult enough for me to even go into a waiting room at the Mental Health Department, let alone apply for a job and try and get back into that. It's been so much pain there one thing after another, after another that I can't even keep it together. There was one cooking job I had in Minneapolis and the stress got so great all I had on the order was one sandwich and I tried it several times and things just, my mind started going in slow motion and the exec chef said that I was just wandering around down in the boiler room. (R. at 72)
The ALJ pointed out to Flugum that he seemed to have turned his life around by stopping his alcohol and drug abuse, and then asked him why the change in his life did not include work. (R. at 72-73) Flugum responded, "I can't hardly stand to be in a waiting room with a group of people let alone try and get along with anybody." (R. at 73)
2. Vocational expert's testimony
VE Marian S. Jacobs testified at the April 15, 1998, hearing. (R. at 82-89) The ALJ posed the following hypothetical to the VE:
51-year-old with a GED, 2 years of college and attended cooking school. Basically, no past longitudinal history of any treatment for orthopedic problems which would significantly limit his ability to lift more than 50 pound I would say. No restrictions on walking, standing, sitting. Most of the medical records we have on this gentleman relate to his treatment for longstanding alcohol and drug abuse and antisocial personality features in the sense that he has a criminal record for theft and some OMDUI charges. Basically, he indicates he has been clean and sober since August of '97. In any event, since alcohol or drug addiction no longer form the bases for a finding of disability and since neither alcohol or drug addiction at least since August of '97 have been influential or a material factor, we will not consider those. Much of his mental health treatment has revolved around his alcohol and drug abuse. At the hearing today he was well-spoken, able to stay on task, able to concentrate, able to answer all questions in a logical and concise manner. There is nothing in this record which would indicate that he could not perform the duties he performed in his past work as a cook as he outlined them in Exhibit 8, page 5, in terms of ordering supplies, planning menus, supervising other workers, and using all the tools related to food preparation. He can exercise adequate judgment, work with co-workers if needed and make simple work-related decisions if necessary. . . . Would he be able to perform his past work activity based on that hypothetical?
(R. at 82-83) The VE answered, "Yes, in my opinion he could." (R. at 83) The ALJ then asked, "Based on the testimony that the claimant gave us today, his frustration, his inability to tolerate stress, his inability to maintain attention and concentration for extended period, his hopelessness, his anger and his deep hatred, if I accept those symptoms as medically based and severe and I accept his testimony as stated, would he still be able to work as a cook?" The VE answered, "Not in my opinion." ( Id.) In response to a question from Flugum's representative, the VE said Flugum also would not be able to work as a cook under the original hypothetical if he suffered from a markedly impaired ability to accept instructions and respond appropriately to criticism from supervisors. (R. at 84)
The VE also testified Flugum had skills that were transferable to a number of other jobs in the economy, but if he had a marked impairment in the ability to accept instructions and respond appropriately to criticism from supervisors, he would be precluded from performing these jobs, as well. (R. at 84-89)
3. Flugum's medical history
A detailed, chronological summary of Flugum's relevant medical history is attached to this opinion as an Appendix.
Flugum's medical history with respect to physical impairments is fairly unremarkable, but his mental health history is extensive, including a long history of suicidal tendencies; sexual, mood, and personality disorders; drug and alcohol abuse; depression; and possible paranoid schizophrenia. His extensive history of alcohol and drug usage apparently ended after an incident in August 1996, in which he pointed a loaded shotgun at his father. (R. at 60)
4. The ALJ's conclusion
The ALJ found Flugum "met the disability insured status requirements of the Act on December 31, 1991, the date the claimant stated he became unable to work," and he has not engaged in substantial gainful activity since December 31, 1991. (R. at 27) The ALJ further found that Flugum's statements concerning his impairments and their impact on his ability to work were not credible. ( Id.) The ALJ concluded that Flugum is unable to perform his past relevant work, but is able to perform "medium work" in jobs available in significant numbers in the economy. (R. at 28) As a result, the ALJ concluded Flugum was not under a "disability" as defined in the Social Security Act. ( Id.)
III. ANALYSIS A. The Substantial Evidence Standard
Governing precedent in the Eighth Circuit requires this court to affirm the ALJ's findings if they are supported by substantial evidence in the record as a whole. Weiler v. Apfel, 179 F.3d 1107, 1109 (8th Cir. 1999) (citing Pierce v. Apfel, 173 F.3d 704, 706 (8th Cir. 1999)); Kelley v. Callahan, 133 F.3d 583, 587 (8th Cir. 1998) (citing Matthews v. Bowen, 879 F.2d 422, 423-24 (8th Cir. 1989)); 42 U.S.C. § 405(g) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . ."). Under this standard, substantial evidence means something "less than a preponderance" of the evidence, Kelley, 133 F.3d at 587, but "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); accord Ellison v. Sullivan, 921 F.2d 816, 818 (8th Cir. 1990). Substantial evidence is "relevant evidence which a reasonable mind would accept as adequate to support the [ALJ's] conclusion." Weiler, 179 F.3d at 1109 (again citing Pierce, 173 F.3d at 706); Perales, 402 U.S. at 401, 91 S.Ct. at 1427; accord Hutton v. Apfel, 175 F.3d 651, 654 (8th Cir. 1999); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993); Ellison, 91 F.2d at 818.
Moreover, substantial evidence "on the record as a whole" requires consideration of the record in its entirety, taking into account "`whatever in the record fairly detracts from'" the weight of the ALJ's decision. Willcuts v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998) (quoting Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)); accord Hutton, 175 F.3d at 654 (citing Woolf, 3 F.3d at 1213). Thus, the review must be "more than an examination of the record for the existence of substantial evidence in support of the Commissioner's decision"; it must "also take into account whatever in the record fairly detracts from the decision." Kelley, 133 F.3d at 587 (citing Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must apply a balancing test to assess any contradictory evidence. Sobania v. Secretary of Health Human Serv., 879 F.2d 441, 444 (8th Cir. 1989) (citing Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987)). The court, however, does "not reweigh the evidence or review the factual record de novo." Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (quoting Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994)). Instead, if, after reviewing the evidence, the court finds it "possible to draw two inconsistent positions from the evidence and one of those positions represents the agency's findings, [the court] must affirm the [Commissioner's] decision." Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992) (citing Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989)); see Hall v. Chater, 109 F.3d 1255, 1258 (8th Cir. 1997) (citing Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996)). This is true even in cases where the court "might have weighed the evidence differently," Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994) (citing Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992)), because the court may not reverse "the Commissioner's decision merely because of the existence of substantial evidence supporting a different outcome." Spradling v. Chater, 126 F.3d 1072, 1074 (8th Cir. 1997).
B. Disability Determination and the Burden of Proof
Section 423(d) of the Social Security Act defines a disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505. A claimant has a disability when the claimant is "not only unable to do his previous work but cannot, considering . . . his age, education and work experience, engage in any other kind of substantial gainful work which exists in [significant numbers in] the national economy . . . either in the region in which such individual lives or in several regions of the country." 42 U.S.C. § 432(d)(2)(A).
To determine whether a claimant has a disability within the meaning of the Social Security Act, the Commissioner follows a five-step process outlined in the regulations. 20 C.F.R. § 404.1520 416.920; see Kelley, 133 F.3d at 587-88 (citing Ingram v. Chater, 107 F.3d 598, 600 (8th Cir. 1997)). First, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity. Second, he looks to see whether the claimant labors under a severe impairment; i.e., "one that significantly limits the claimant's physical or mental ability to perform basic work activities." Kelley, 133 F.3d at 587-88. Third, if the claimant does have such an impairment, then the Commissioner must decide whether this impairment meets or equals one of the presumptively disabling impairments listed in the regulations. If the impairment does qualify as a presumptively disabling one, then the claimant is considered disabled, regardless of age, education, or work experience. Fourth, the Commissioner must examine whether the claimant retains the residual functional capacity to perform past relevant work.
Finally, if the claimant demonstrates the inability to perform past relevant work, then the burden shifts to the Commissioner to prove there are other jobs in the national economy that the claimant can perform, given the claimant's impairments and vocational factors such as age, education and work experience. Id.; Hunt v. Heckler, 748 F.2d 478, 479-80 (8th Cir. 1984) ("[O]nce the claimant has shown a disability that prevents him from returning to his previous line of work, the burden shifts to the ALJ to show that there is other work in the national economy that he could perform.") (citing Baugus v. Secretary of Health Human Serv., 717 F.2d 443, 445-46 (8th Cir. 1983); Nettles v. Schweiker, 714 F.2d 833, 835-36 (8th Cir. 1983); O'Leary v. Schweiker, 710 F.2d 1334, 1337 (8th Cir. 1983)).
Step five requires that the Commissioner bear the burden on two particular matters:
In our circuit it is well settled law that once a claimant demonstrates that he or she is unable to do past relevant work, the burden of proof shifts to the Commissioner to prove, first that the claimant retains the residual functional capacity to do other kinds of work, and, second that other work exists in substantial numbers in the national economy that the claimant is able to do. McCoy v. Schweiker, 683 F.2d 1138, 1146-47 (8th Cir. 1982) ( en banc); O'Leary v. Schweiker, 710 F.2d 1334, 1338 (8th Cir. 1983).
Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000) (emphasis added) accord Weiler, 179 F.3d at 1110 (analyzing the fifth-step determination in terms of (1) whether there was sufficient medical evidence to support the ALJ's residual functional capacity determination and (2) whether there was sufficient evidence to support the ALJ's conclusion that there were a significant number of jobs in the economy that the claimant could perform with that residual functional capacity); Fenton v. Apfel, 149 F.3d 907, 910 (8th Cir. 1998) (describing "the Secretary's two-fold burden" at step five to be, first to prove the claimant has the residual functional capacity to do other kinds of work, and second, to demonstrate that jobs are available in the national economy that are realistically suited to the claimant's qualifications and capabilities).
C. Review of the ALJ's Decision
The ALJ found Flugum was unable to perform his past relevant work, but based on his residual functional capacity, he could perform a number of other jobs in the economy. (R. at 28) This finding was based on the testimony of the VE, who testified Flugum had skills that were transferable to a number of other jobs in the economy. (R. at 84-87) The VE also testified, however, that if Flugum had a marked impairment in the ability to accept instructions and respond appropriately to criticism from supervisors, he would be precluded from performing these jobs. (R. at 89)
Flugum presents two arguments in support of his challenge to the Commissioner's decision. First, he contends the ALJ erred by not properly crediting his testimony. Second, he argues the ALJ's finding that he is able to perform substantial gainful activity is not supported by substantial evidence. In light of the VE's testimony and the ALJ's decision, these arguments can be boiled down to one issue, to-wit: Does the record support the ALJ's finding that Flugum does not suffer from a marked impairment in the ability to accept instructions and respond appropriately to criticism from supervisors? If the record supports such a finding, Flugum can perform a number of jobs in the economy. If the record does not support such a finding, Flugum is disabled from performing any job. (R. at 89)
1. Polaski analysis, subjective pain complaints and credibility
The Sixth and Seventh Circuits have held that an ALJ's credibility determinations are entitled to considerable weight. See, e.g., Young v. Secretary of H.H.S., 957 F.2d 386, 392 (7th Cir. 1992) (citing Cheshier v. Bowen, 831 F.2d 687, 690 (7th Cir. 1987)); Gooch v. Secretary of H.H.S., 833 F.2d 589, 592 (6th Cir. 1987), cert. denied, 484 U.S. 1075, 108 S.Ct. 1050, 98 L.Ed.2d 1012 (1988); Hardaway v. Secretary of H.H.S., 823 F.2d 922, 928 (6th Cir. 1987). Nonetheless, in the Eighth Circuit, an ALJ may not discredit pain allegations simply because there is a lack of objective evidence; instead, the ALJ may only discredit subjective pain complaints ("SPCs") if they are inconsistent with the record as a whole. Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir. 1994); see also Bishop v. Sullivan, 900 F.2d 1259, 1262 (8th Cir. 1990) (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)). Under Polaski:
The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant's prior work record, and observations by third parties and treating and examining physicians relating to such matters as:
1) the claimant's daily activities;
2) the duration, frequency and intensity of the pain;
3) precipitating and aggravating factors;
4) dosage, effectiveness and side effects of medication;
5) functional restrictions.
Polaski, 739 F.2d at 1322.
Flugum argues the ALJ improperly discredited his testimony. The Polaski analysis necessarily encompasses this argument. Therefore, the court turns to a review of the ALJ's decision and the record in light of the Polaski factors to determine if the decision rests on substantial evidence.
a. Claimant's daily activities and prior work record i. Daily activities
The ALJ found Flugum engages in a number of daily physical activities, including cooking, keeping up the house, and dong yard work. (R. at 20) His grooming and appearance are adequate. ( Id.) He maintains some family relationships, and was involved with a church until shortly before the hearing. ( Id.) He also has a relationship with a woman friend. ( Id.) The ALJ found these activities were inconsistent with the feelings of "severe hopelessness and depressive feelings" claimed by Flugum. ( Id.) They are not, however, inconsistent with a marked impairment in the ability to accept instructions and respond appropriately to criticism from supervisors. Furthermore, "an SSI claimant need not prove that she is bedridden or completely helpless to be found disabled and the fact that claimant cooks and cleans for herself, shops for groceries, does laundry, visits friends, attends church, and goes fishing does not in and of itself constitute substantial evidence that a claimant possesses the residual functional capacity to engage in substantial gainful activity." Cline v. Sullivan, 939 F.2d 560, 566 (8th Cir. 1991) (citing Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989)).
This factor does not weigh against Flugum's credibility.
ii. Prior work record
The ALJ noted Flugum's earnings record shows consistent, but generally low, earnings. (R. at 20, 299) A consistent work record weighs in favor of Flugum's credibility.
b. The duration, frequency, and intensity of pain
Flugum's mental problems do not involve pain, but the frequency and intensity of these problems is well documented in the record. He has a history of psychiatric hospitalizations and treatment throughout his entire life. This factor also weighs in favor of his credibility.
c. Precipitating and aggravating factors
Flugum has a history of being unable to deal with supervisors, and of losing jobs because of this problem. This factor also supports Flugum's credibility.
d. Dosage, effectiveness, and side effects of medication
Flugum has never consistently used prescribed medication to deal with his mental health problems. The ALJ emphasized the fact that Flugum had not sought out or participated in ongoing medical treatment for his mental problems. (R. at 20) This factor weighs against Flugum's credibility.
e. Functional restrictions
After the initial hearing in 1996, Flugum was evaluated by several mental health professionals. As summarized in section III.C.3, below, Flugum has been functionally restricted by his mental problems throughout his life. This factor weighs in favor of his credibility.
The ALJ cited functional restrictions as one of the Polaski factors which "must be considered in addition tot he objective evidence when assessing the credibility of an individual's statements[,]" (R. at 20), but he then failed to indicate how this factor was considered in arriving at his conclusion that Flugum's "statements concerning his impairments and their impact on the ability to work [were] not credible." (R. at 21.) As the Eighth Circuit explained in Cline v. Sullivan, 939 F.2d 560 (8th Cir. 1991):
When rejecting a claimant's complaints . . . the ALJ must make an express credibility determination detailing his reasons for discrediting the testimony. . . . The Notice of Decision in this case inadequately explains the inconsistencies relied upon by the ALJ in disbelieving [Flugum's] allegations . . . and does not reveal that [Flugum's] credibility was evaluated according to the factors set forth in Polaski. (Citation omitted.)
Cline, 939 F.2d at 564. The ALJ found Flugum's statements were not credible without offering a reasoned consideration of the Polaski factors. The court finds the ALJ's conclusion is not supported by the record, and the ALJ improperly discounted Flugum's testimony.
3. Substantial Evidence
Flugum argues there was not substantial evidence to support the ALJ's decision to deny him benefits. The court agrees. The court finds the record does not support the ALJ's decision and Flugum should be awarded benefits.
After the first hearing in 1996, Dr. Steven Gordon, a licensed psychologist, performed a consultative examination of Flugum. Dr. Gordon met with Flugum on December 12, 1997, and took the following history:
Records indicate that Mr. Flugum has a long history of psychiatric problems and substance abuse. When he was an adolescent he was treated at the Brown School in Texas, Beloit in Ames, the University of Iowa Psychopathic Hospital on at least three occasions, and spent three years in Cherokee Mental Health Institute. He has had mental health diagnosis, including schizophrenia, severe character disorder, defiance of authority, explosive temper, and personality disorder. He has had a long history of alcohol abuse and alcoholic patterns of drinking, as well as a long history of drug abuse and drug addiction. He has been involved in several previous attempts at inpatient chemical dependency treatment, with subsequent relapses and returning to active patterns of involvement. The client has exhibited multiple suicide attempts, consisting of cutting on his arms in the past.
(R. at 287)
During the consultation, Flugum was moody, intense, and easily irritable, but was oriented times three. (R. at 288) Dr. Gordon that Flugum had the ability to sustain an ordinary routine without special supervision and to make simple work-related decisions, but his "low frustration tolerance, labile mood, tendency to misconstrue the words and actions of others, and unusual thinking at times will cause problems interacting with coworkers, supervisors, and the general public." (R. at 291)
Dr. Gordon concluded Flugum had a history of alcohol and drug abuse, but he previously and concurrently had an underlying personality disorder. He quoted the conclusion from a April 1968, report from Cherokee Mental Health Institute that Flugum "carried a diagnosis of Schizophrenic Reaction, Chronic Undifferentiated Type, but has for a long period shown no evidence of gross Psychosis, but rather of severe character disorder with defiance of authority and control, explosive temper, and manipulation of the environment when it has served his purpose." (R. at 292) Dr. Gordon's diagnostic impression was "Mood Disorder NOS; Polysubstance Dependency; In Partial Remission, Personality Disorder NOS, with elements of Borderline and Antisocial Characteristics." ( Id.)
Dr. Gordon completed a Mental Residual Functional Capacity Assessment form for Flugum on April 20, 1998. (R. at 316-318) He found Flugum was moderately or markedly limited in the ability to maintain attention and concentration for extended periods, and markedly limited in performing activities within a schedule, maintaining regular attendance, and being punctual within customary tolerances. (R. at 316) He was also moderately limited in the ability to work in coordination with or proximity to others without being distracted by them, and moderately or markedly limited in the ability to complete a normal workday and work week without interruptions from psychologically based symptoms. ( Id.) He also was moderately limited in several adaption skills. (R. at 317) Most significantly, with respect to his social interaction skills, Flugum was markedly limited in his ability to interact appropriately with the general public, to accept instructions and respond appropriately to criticism from supervisors, and to get along with co-workers or peers without distracting them or exhibiting behavioral extremes. ( Id.)
In the conclusion of the form, Dr. Gordon stated Flugum "has problems with low frustration tolerance, labile mood, and tendency to misinterpret the words and actions of others." (R. at 318) He also displays unusual thinking at times. ( Id.) Dr. Gordon stated Flugum has "had all these problems his whole life regardless of chemical abuse." ( Id.) Summarizing, he stated the following:
[Flugum's] main problem is a broad-based personality disorder, with Borderline and Antisocial features. These characteristics will have an adverse impact on interacting with others and completing the work required in a job situation.
( Id.)
Upon this record, for the ALJ to find Flugum was not entitled to benefits, the ALJ necessarily was required to disregard Dr. Gordon's conclusion that Flugum was markedly limited in his ability to accept instructions and to respond appropriately to criticism from supervisors. (R. at 317) This is because the VE opined that with such a limitation, Flugum would be precluded from all employment. (R. at 89) Therefore, although the ALJ agreed with the limitations found by Dr. Gordon in his Mental Residual Functional Capacity Assessment form, she disagreed with Dr. Gordon's assessment of some of those limitations as "marked," particularly the limitation on Flugum's ability to accept instructions and to respond appropriately to criticism from supervisors. The ALJ pointed out that Flugum has had these problems throughout his life, and in the past Flugum had completed a college course and held several jobs. (R. at 24) She observed that since Flugum had stopped using alcohol and drugs, he was more likely to be able to deal with these problems successfully. ( Id.) She also noted there was no evidence in the record that the problems were worsening, and the record established Flugum was able to maintain "some fairly demanding personal relationships." ( Id.) In discussing "the issue of any limitations in the claimant's ability to perform the mental requirements of work," the ALJ pointed out that Flugum's work history established he had no trouble finding employment, but he soon would get frustrated and do whatever was necessary to get out of the job. (R. at 22) The ALJ recognized that Dr. Gordon felt this pattern was the result of Flugum's underlying personality disorder, but then stated it was her task "to determine what the claimant is capable of despite his personality disorder." ( Id.)
The court finds the ALJ disregarded Dr. Gordon's conclusions and Flugum's supporting testimony without any reasonable basis. The ALJ simply substituted her judgment for the judgment of Dr. Gordon. This was improper. See Pratt v. Sullivan, 956 F.2d 830, 834 (8th Cir. 1992) (ALJ's substitution of his own unsubstantiated conclusion for diagnosis of examining psychiatrist or psychologist "constituted reversible error," citing Delrosa v. Sullivan, 922 F.2d 480, 484-85 (8th Cir. 1991)); Ness v. Sullivan, 904 F.2d 432, 435 (8th Cir. 1990) ("[T]he law of this circuit . . . states that the ALJ must not substitute his opinions for those of [a] physician[,]" citing Fowler v. Bowen, 866 F.2d 249, 252 (8th Cir. 1989)); Lund v. Weinberger, 520 F.2d 782, 785 (8th Cir. 1975) (ALJ "may not draw upon his own inferences from medical reports," citing Landess v. Weinberger, 490 F.2d 1187, 1189 (8th Cir. 1974), and Willem v. Richardson, 490 F.2d 1247, 1248-49 n. 3 (8th Cir. 1974)); Yaw v. Apfel, 9 F. Supp.2d 1057, 1062 (S.D.Iowa 1998) ("It is well settled Eighth Circuit case law that an ALJ is not permitted to substitute his judgment for that of a physician[,]" or of a licensed psychologist, citing 20 C.F.R. § 404.1513(a)); see also Rousey v. Heckler, 771 F.2d 1065, 1069 (7th Cir. 1985) ("The ALJ cannot make his own independent medical determinations about the claimant[,]" citing Freeman v. Schweiker, 681 F.2d 727, 731 (11th Cir. 1982)). She also concluded, without any support in the record, that Flugum's recent abstinence from alcohol and drugs made it more likely he would be able to hold a job, and handle criticism and supervision. She based her conclusion, in part, on the observation that Flugum was able to maintain demanding personal relationships. In fact, the only evidence in the record of "demanding" personal relationships was evidence concerning Flugum's relationship with his father, whom he had recently assaulted with a loaded shotgun, and his platonic relationship with a troubled lady friend. Nothing in the record supports a conclusion that Flugum is now able to maintain employment.
After consideration of the record as a whole, the court finds the evidence is inadequate to support the ALJ's conclusion that Flugum is not entitled to benefits. In reaching her decision, the ALJ expressly, and incorrectly, refused to take into account Flugum's testimony and the report of Dr. Gordon. If she had done so, she would have been required to find Flugum was entitled to benefits. Therefore, the ALJ's decision to deny Flugum benefits should be reversed, and this case should be remanded to the Commissioner for a determination of benefits.
IV. CONCLUSION
Flugum is seeking disability benefits for a disability caused by mental problems that prevent him from accepting instructions and responding appropriately to criticism from supervisors. The record establishes he has suffered from such a disability since December 31, 1991, and therefore, he is entitled to benefits beginning on that date.
IT IS RECOMMENDED, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b), within ten (10) days of the service of a copy of this Report and Recommendation, that judgment be entered in favor of the plaintiff and against the defendant.
Objections must specify the parts of the report and recommendation to which objections are made. Objections must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 475, 88 L.Ed.2d 435 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).
IT IS SO ORDERED.