Opinion
Civil No. 00-872-RE
February 7, 2001
Phil Studenberg Klamath Falls, Oregon Attorney for Plaintiff.
Kristine Olson United States Attorney, William W. Youngman Assistant United States Attorney, Portland, Oregon. Norman M. Barbosa Special Assistant United States Attorney Seattle, Washington Attorneys for Defendant.
OPINION AND ORDER
Plaintiff David Hafar brings this action pursuant to the Social Security Act (the Act), 42 U.S.C. § 405(g), to obtain judicial review of the Commissioner's final administrative decision denying his applications for benefits under Titles II and XVI of the Act. For the reasons set forth below, the Commissioner's decision is affirmed.
PROCEDURAL BACKGROUND
Plaintiff filed applications for Supplemental Security Income (SSI) and Disability Insurance Benefits (DIB) on October 16, 1996, alleging disability since January 3, 1991 due to anxiety, depression, a personality disorder, and asthma. Tr. 88. His applications were denied initially and upon reconsideration. Plaintiff requested a hearing before an administrative law judge (ALJ).
A hearing was held before an ALJ on October 22, 1998. Tr. 256-82. Plaintiff appeared and testified at the hearing, and was represented by counsel. Also testifying was a vocational expert.
On January 27, 1999, the ALJ issued a decision finding that plaintiff was not disabled. Tr. 14-26. The Appeals Council denied plaintiff's request for review on April 25, 2000, making the ALJ's decision a final decision. Tr. 6-7.
STATEMENT OF THE FACTS
A. Introduction.
Plaintiff was 36 years old at the time of the hearing. He has a high school education and past relevant work as a survey rodman, laborer, and stocker. Tr. 25.
B. Medical Record.
In June 1992, plaintiff was treated at the Merle West Medical Center in Klamath Falls, Oregon for a knee laceration. Tr. 209-11. Plaintiff reported no other complaints and that he was feeling well. Tr. 209.
In July 1993, plaintiff was hospitalized at Merle West Medical Center after a motor vehicle accident that resulted in rib fractures, acute cervical strain, and an ankle laceration. Tr. 153-80. Records noted that plaintiff has asthma. Tr. 155. Records contain no indication that plaintiff complained of or was in mental or emotional distress.
In January 1994, plaintiff was hospitalized at Merle West Medical Center on a police hold after he reported paranoid delusions and hallucinations. Tr. 181-87. On admission, plaintiff was "extremely frightened and . . . was quite dangerous to the staff, requiring 4-point restraints." Tr. 182. He was found to be acutely psychotic and unpredictable. Id. Plaintiff "vehemently denied using any drugs." Id. A urine screen was positive for amphetamines and marijuana. Id. A history obtained from plaintiff's family indicated that "he probably had been `shooting crank' as he has a history of doing this and also taking steroids." Id. As he improved, plaintiff admitted that his condition "was probably due to the abuse of amphetamines and marijuana." Id. Upon his discharge, plaintiff "did not choose to have any referral or assistance in managing his drug problem." Id. His diagnosis was delirium secondary to amphetamine and THC abuse, drug dependency-amphetamines and THC, and steroid abuse. Tr. 183. Hospital records indicate that plaintiff "has been on asthma medication in the past, but he has not taken it." Tr. 184.
In October 1994, plaintiff was again hospitalized from the emergency room on a police hold; he was confused, restless, had delusions, and was in an agitated state. Tr. 188-201. He denied alcohol or substance abuse and claimed to have no history of psychological problems, which his mother confirmed. Tr. 193. However, he also admitted to "using Amphetamines intravenously two days ago and says that he uses it periodically, either snorting it or intravenously. Also uses marijuana." Tr. 195. A urinalysis was positive for amphetamines and marijuana. Tr. 190. Plaintiff was diagnosed with amphetamine delusional disorder and psychoactive substance abuse, NOS. Tr. 189. Plaintiff admitted current steroid use as part of his body building program. Id. By his discharge, records indicate that plaintiff was thinking clearly and denied suicidal or aggressive ideation; his mood was good and he planned to return to school. Tr. 190.
In March 1996, plaintiff was treated in the Merle West Medical Center emergency room for sinus, congestion, stuffed up ears, and a cough. Tr. 204-05. Plaintiff reported he had no significant past medical history. Tr. 205. Records indicate "[t]his is an alert, pleasant man who does not appear particularly ill today." Id.
In July 1996, plaintiff was treated in the Merle West Medical Center emergency room for coughing and wheezing. Tr. 202-03. He reported a significant history of asthma, and was diagnosed with viral bronchitis. Tr. 203.
In July 1996, plaintiff was referred to David N. Sweet, Ph.D. by the State Office of Services to Children and Families for a comprehensive psychological evaluation, to be done in conjunction with an evaluation of plaintiff's girlfriend, Brandi Bark, relative to issues that had arisen regarding the health and custody of Ms. Bark's baby. Tr. 214-21. Plaintiff denied "any problems with alcohol or drugs because he has had `no arrests or convictions'," and said that he had not used drugs since November 1995. Tr. 216. Plaintiff also denied "any history of mental or emotional problems and denies any personal or family history of alcohol or drug problems." Tr. 217-18.
Dr. Sweet indicated that he considered his diagnostic impressions of plaintiff to be "provisional due to his guardedness and evasiveness." Tr. 220. Dr. Sweet reported that plaintiff appeared to be experiencing an adjustment disorder with mixed anxiety and depressed mood, and a mixed personality disorder with paranoid and borderline characteristics. Id. He also indicated that plaintiff may have alcohol or drug problems, but that he was not forthcoming on the issue. Id.
In December 1996, plaintiff received a psychodiagnostic evaluation from R.C. Taylor, Ph.D. based on a referral from Disability Determination Services. Tr. 222-29. Plaintiff reported that he has asthma and uses an inhaler, but denied any major illnesses or diseases. Tr. 222. Noting plaintiff's prior provisional diagnoses of adjustment disorder and personality disorder, Dr. Taylor reported that plaintiff "also presents with some of the characteristics of a possible Schizophrenic and/or Delusional Disorder" with some paranoid ideation. Tr. 223. Plaintiff reported that he hears voices, is depressed and worried, and has some suicidal thoughts from time to time. Id. Otherwise, according to Dr. Taylor, plaintiff "did not present with any significantly bizarre patterns, at least from a psychological point of view." Id. Plaintiff reported that he was not involved in drugs or alcohol, and had been "clean for about 2 years." Id. Dr. Taylor reported that plaintiff appeared "to be intact as regards average daily living and self-care skills, at least under relatively benign circumstances." Tr. 224. Dr. Taylor also reported that plaintiff's thoughts were clear and coherent, and that his mood appeared to be dysphoric and somewhat irritable. Id. He noted that plaintiff "characterizes himself as bothered by voices in his head which are there constantly." Id. However, plaintiff denied any other experience that could be construed as illusions, delusions, hallucinations. Id. Dr. Taylor noted that "although he admits that he's been depressed and worried, his depression and anxiety appear to be more a function of the vicissitudes of his life than due to any endogenous condition per se." Id.
Dr. Taylor reported that plaintiff did not appear to demonstrate "severe disturbances of thinking or behavior" and appeared "able to live independently without a more than normally structured, nurturant, and supportive environment." Tr. 227. He noted that "apparently he is able to maintain a minimal level of social functioning and interpersonal relationships, and he is clearly able to communicate his wants and needs." Id. He noted that plaintiff appeared to have had "frequent episodes of decompensation in work and life settings in the past which have caused him to withdraw and which have exacerbated his distress." Id.
Because his data was "based on very limited observations taken under restricted conditions," Dr. Taylor indicated that his conclusions should be viewed with caution. Id. Dr. Taylor proposed schizophrenic, delusional, and factitious disorders, all on a rule-out basis, but stated that plaintiff's skills and capacity testing indicated that he could meet the requirements of suitable and feasible entry-level industrial training or occupations. Tr. 225, 227.
In November 1999, Michael Thein, M.D., Medical Director for the Klamath County Department of Mental Health, wrote a letter to plaintiff's attorney with respect to plaintiff's disability claim. Tr. 250. This letter was not before the ALJ when she made her decision, but was submitted to the Appeals Counsel before it denied plaintiff's request for review. Dr. Thein reported that plaintiff had been his patient since August 1999, and that plaintiff was "encumbered with a serious, chronic mental illness; paranoid schizophrenia." Id. He went on to state that he is "continuing to evaluate this client because I feel there are additional features which may change this initial diagnosis." Id. He also opined that plaintiff would not be able to function in a work setting because of (1) his inability to tolerate groups of people for prolonged periods of time; (2) his tendency to see supervision from an authority person as attempting to control him; (3) his high level of distractibility and poor concentration and memory which would make it difficult for him to complete tasks; and (4) his inappropriate affect, which would distract other employees working around him. Id.
C. Plaintiff's Testimony.
Plaintiff testified that he is unable to work because of his mental impairments. Tr. 270. He hears voices all the time, and has done so since age 18. Tr. 264-65, 267-68. He likes to avoid people, and testified that he has poor memory and concentration. Tr. 270. Plaintiff denied having any physical problems, stating that his physical health was okay. Tr. 266-67 He stated that he uses no medications whatsoever for his mental disorders, but does use asthma medications. Tr. 263. Plaintiff stated that he last used a drug (which was marijuana) between 12 and 18 months prior to the hearing, and that he last consumed alcohol one month prior to the hearing. Tr. 262.
STANDARD OF REVIEW
A. Substantial Evidence.
This court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). The court must weigh "both the evidence that supports and detracts from the Commissioner's conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, plaintiff must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
B. The Sequential Process.
The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1502, 416.920. In the first step, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Bowen, 482 U.S. at 140; 20 C.F.R. § 404.1520(b), 416.920(b).
In step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; see 20 C.F.R. § 404.1520(c), 416.920(c). If not, the claimant is not disabled.
In step three, the Commissioner determines whether the impairment meets or equals "one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity." Id.; see 20 C.F.R. § 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant can still perform "past relevant work." 20 C.F.R. § 404.1520(e), 416.920(e). If the claimant can work, she is not disabled. If she cannot perform past relevant work, the burden shifts to the Commissioner.
In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; see 20 C.F.R. § 404.1520(e) (f), 416.920(e) (f). If the Secretary meets this burden and proves that the claimant is able to perform other jobs which exist in significant numbers in the national economy, she is not disabled. 20 C.F.R. § 404.1566, 416.966.
THE ALJ'S DECISION
The ALJ found, in relevant part, that:
(1) The medical evidence establishes that plaintiff has "severe" drug and alcohol abuse, depressive disorder, anxiety disorder, personality disorder, and asthma, but that he does not have an impairment or combination of impairments listed in, or medically equal to, one listed in Appendix 1, Subpart P, Regulations No. 4;
(2) Plaintiff is credible regarding the presence and "severe" nature of these impairments, but not as to any further implication that they have totally disabled him;
(3) Plaintiff has the RFC to perform work at all exertional levels except that he is restricted to simple unskilled work; where there is little contact with the general public; where there is limited close interaction with co-workers, and where there are no excessively high levels of air pollutants, temperatures, or humidity;
(4) Plaintiff is unable to perform his past relevant work as a survey rodman, laborer, or stocker;
(5) Plaintiff can be expected to make a vocational adjustment to work which exists in significant numbers in the national economy, such as cannery worker and electronics assembler.
Tr. 24-25.
PLAINTIFF'S DESIGNATIONS OF ERROR
Plaintiff argues that the ALJ erred in finding that he does not have an impairment or combination of impairments listed in, or medically equal to, one listed in Appendix 1, Subpart P, Regulations No. 4.
DISCUSSION
The ALJ concluded that plaintiff's impairments of drug and alcohol abuse, depressive disorder, anxiety disorder, personality disorder, and asthma are "severe," but do not, singly or in combination, meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4. Tr. 24.
Plaintiff argues that his mental impairments meet the criteria for listing 12.08, personality disorder, which are:
A personality disorder exists when personality traits are inflexible and maladaptive and cause either significant impairment in social or occupational functioning or subjective distress. Characteristic features are typical of the individual's long-term functioning and are not limited to discrete episodes of illness.
The required level of severity for these disorders is met when the requirements in both A and B are satisfied.
A. Deeply ingrained, maladaptive patterns of behavior associated with one of the following:
1. Seclusiveness or autistic thinking; or
2. Pathologically inappropriate suspiciousness or hostility; or
3. Oddities of thought, perception, speech and behavior; or
4. Persistent disturbances of mood or affect; or
5. Pathological dependence, passivity, or aggressivity; or
6. Intense and unstable interpersonal relationships and impulsive and damaging behavior;
AND B. Resulting in three of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Deficiencies of concentration, persistence of pace resulting in frequent failure to complete tasks in a timely manner (in work settings or elsewhere); or
4. Repeated episodes of deterioration or decompensation in work or work-like settings which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms (which may include deterioration of adaptive behaviors).20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.08.
Plaintiff argues, without citation to the medical record, that he meets the requirements of listing 12.08 because the medical record evidences "deeply ingrained, maladaptive patterns of behavior associated with pathologically inappropriate suspiciousness or hostility as well as intense and unstable interpersonal relations and impulsive and damaging behavior." Pl. Memo., p. 2. He also argues that the record shows marked difficulty in maintaining social function, deficiencies in concentration and repeated episodes of decompensation in work or work-like settings. Id.
The court's review of the record indicates that it does not contain evidence to support plaintiff's argument that he has each of the symptoms that he lists in his memorandum. Further, even if the record does contain evidence of some of these symptoms, there is no evidence that the symptoms are sufficiently severe to meet the listing requirements. In order to meet the listing requirements, the severity of symptoms exhibited must be so extreme as to constitute disability per se without regard to any further consideration of a claimant's age, education, or work experience. Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990). An ALJ should not consider a claimant's impairment to be one that meets or equals the listings solely because claimant has a diagnosis of a listed impairment. 20 C.F.R. § 404.1525(d), 416.925(d); Key v. Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 1985).
Although plaintiff argues that he suffers from an impairment so severe that it meets the listing and he should therefore be considered disabled per se, he testified that he has never received any treatment for mental health problems, and indeed the record is devoid of evidence of any such treatment.
Further, the reports of the two psychologists who conducted full examinations and evaluations of plaintiff (Drs. Sweet and Taylor) do not support his argument. Rather, these reports support the ALJ's finding that plaintiff's mental impairments do not meet or equal the criteria of listing 12.08. Dr. Sweet's evaluation of plaintiff was not for the purpose of determining limitations of his daily activities and ability to work (it was related to health and custody issues of plaintiff's girlfriend's baby). Dr. Sweet did not report that plaintiff was suffering from severe or debilitating symptoms of mental impairments. Rather, Dr. Sweet reported that plaintiff denied a history of mental or emotional problems. Dr. Sweet diagnosed an adjustment disorder with mixed anxiety and depressed mood and a mixed personality disorder with paranoid and borderline characteristics, but also noted that his diagnostic impressions of plaintiff were provisional due to plaintiff's guardedness and evasiveness.
Dr. Taylor's report also does not contain evidence that plaintiff is suffering from severe or debilitating symptoms of mental impairments. Rather, Dr. Taylor noted that plaintiff did not present any significantly bizarre patterns from a psychological point of view. Plaintiff reported to Dr. Taylor that he had no major illnesses or diseases. Dr. Taylor concluded that plaintiff was intact with regard to average daily living and self-care skills, and that his thoughts were clear and coherent. He reported that all of plaintiff's tested skills and capacities appeared sufficiently intact to allow him to meet the demands of daily living or the requirements of suitable and feasible entry-level industrial training or occupation. Dr. Taylor's diagnoses of proposed schizophrenia, delusional, and factitious disorders were all on a rule-out basis, and were expressly stated to be viewed with caution.
The only evidence in the record that supports plaintiff's argument that he meets the criteria for the listing is Dr. Thein's November 1999 letter. Tr. 250. Dr. Thein reported that plaintiff had been his patient since August 1999, and that plaintiff was "encumbered with a serious, chronic mental illness; paranoid schizophrenia." Id. However, since this letter was not before the ALJ when she rendered her decision, the court is permitted to take it into consideration only with respect to its analysis of whether the ALJ's decision was supported by substantial evidence. Ramirez v. Shalala, 8 F.3d 1449, 1451-52 (9th Cir. 1993). Remand for payment of benefits based on evidence not before the ALJ is inappropriate. Harman v. Apfel, 203 F.3d 1151, 1160 (9th Cir. 2000). Thus, this court reviews Dr. Thein's letter to determine whether a remand is necessary to allow the ALJ to further consider plaintiff's claim in light of the new evidence. In order to remand for further proceedings based on new evidence presented to the Appeals Council, the court must find that there is a reasonable possibility of changing the outcome of the ALJ's determination. Burton v. Heckler, 724 F.2d 1415, 1417 (9th Cir. 1984).
In this case, I conclude that Dr. Thein's letter does not present a reasonable possibility of changing the outcome of the ALJ's determination. The letter is very brief, and indicates that plaintiff had been a patient of Dr. Thein for only a few months. Dr. Thein also reported that he was continuing to evaluate plaintiff because he felt there were additional features that may change his diagnosis of paranoid schizophrenia. Neither his diagnosis, nor his opinion on plaintiff's capacity to function in a work setting, were supported by charts, records, or clinical data of any sort. There is also no indication in Dr. Thein's letter of how often or how thoroughly he has examined and evaluated plaintiff. Dr. Thein's letter does not speak to the criteria of listing 12.08, either with respect to the existence of listed symptoms or their severity. In other words, Dr. Thein's letter contains brief, conclusory, and unsupported opinions about plaintiff's diagnosis and his ability to work. These opinions are contradicted by full reports of evaluations done by Drs. Sweet and Taylor. As such, the ALJ would not be required to give Dr. Thein's letter any significant weight, and there is not a reasonable possibility of changing the outcome of the ALJ's decision.
CONCLUSION
The Commissioner's decision is AFFIRMED.
IT IS SO ORDERED.