Opinion
8:01CV59.
April 29, 2002
MEMORANDUM AND ORDER
INTRODUCTION
The plaintiff's application for disability benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq., was denied initially and on reconsideration. After a hearing, an administrative law judge ("ALJ") subsequently determined on April 21, 1999, that the plaintiff was not disabled under the Act. The Appeals Council of the Social Security Administration considered new evidence, but still refused the plaintiff's request for review on December 14, 2000. The plaintiff now seeks judicial review of the ALJ's decision since it represents the final decision of the defendant Commissioner of the Social Security Administration.
In a letter dated August 7, 2001, the plaintiff's lawyer informed the court that on the plaintiff's reapplication, Social Security found the plaintiff disabled effective April 22, 1999 — the day after the ALJ's decision in this case — and awarded her medical benefits as of that date. The plaintiff therefore seeks benefits only from the alleged onset date of disability of March 12, 1998, through January 31, 2000.
The plaintiff claims that the ALJ's decision was incorrect for several reasons: 1) the plaintiff meets the Listings and is therefore disabled; 2) if the plaintiff's testimony is credible, the ALJ failed to consider the vocational expert's testimony that the plaintiff was unable to return to her past relevant work or perform other work in the national economy; and 3) if the plaintiff's testimony is not credible, the vocational expert's testimony does not constitute substantial evidence on the record as a whole because the hypothetical question was defective.
I now have reviewed the record, the ALJ's evaluation and findings, the parties' briefs, the transcript, and the applicable law. I conclude that the ALJ's finding that the plaintiff is not disabled within the meaning of the Social Security Act is unsupported by substantial evidence in the record as a whole.
BACKGROUND
The plaintiff, age 54 when she applied for benefits, was a teacher at Papillon-La Vista High School until March 1998. She taught both general and advanced placement history and anthropology courses. She has a master's degree and has earned thirty-six hours toward her doctorate.
Medical and Psychological History. The plaintiff has a history of persistent severe headaches and depression. In September 1995, a series of tests revealed an aneurysm in the left occipital lobe of the plaintiff's brain. On September 15, 1995, John L. Fox, M.D., performed a left frontal craniotomy on the plaintiff with clipping of an internal carotid artery aneurysm. Filing No. 8, Transcript, at 220 (hereafter, TR). The plaintiff experienced post-operative infection and cerebral edema, and was intubated for several days. TR 191. She was then transferred to a rehabilitation unit for approximately two and a half weeks.
Even after her discharge from the hospital, she continued to receive physical and speech therapy. TR 229-231. Dr. Fox noted after his last follow-up visit with the plaintiff in May 1996 that her speech and memory had improved, but that the plaintiff continued to be "a little bit slow on her speech and has to think about what she is going to say." TR 230. Whatever the degree of the plaintiff's improvement, however, the plaintiff's treating psychiatrist since 1994, Sarah Jones, M.D., states that problems with the plaintiff's speech, concentration, and memory nevertheless persist. TR 368. The plaintiff's post-surgical mental deficits have worsened her depression. TR 369. Moreover, the plaintiff has continued to have severe migraine headaches, although they appear to be controlled by medication. TR 77-78; 246-248; 253. She also experiences right-side weakness that occasionally makes writing, lifting, and walking difficult. TR 77, 176.
Following the surgery in May 1997, Dr. Jones referred the plaintiff to a clinical psychologist, Susan Weeks Farnan, Ph. D., for an assessment of the plaintiff's levels of cognitive and memory functioning. Dr. Weeks Farnan administered several tests to the plaintiff. On the WAIS-R, the plaintiff had a verbal IQ of 96, a performance IQ of 102, and a full scale IQ of 98, putting the plaintiff in the average intellectual range. Dr. Weeks Farnan noted, however, that "without access to previous testing data, one cannot discern if [the scores] represent a decrease from previous above average levels of overall intellectual functioning." TR 240-41. The plaintiff demonstrated "a relative weakness on a task which requires immediate auditory recall, attention and concentration, and an ability to manipulate auditory signals under difficult circumstances." Id. On the Halstead Trailmaking Test, the plaintiff scored in the 44th percentile or average range on tasks requiring basic motor and spatial abilities, but only in the 21st percentile or below average range on tasks requiring increased levels of cognitive flexibility and divided attention. TR 241.
The results of the Rey Auditory Verbal Learning Test, which measures learning and auditory memory and recall for disjointed, unrelated verbal information, taken together with the results of the Weschler Memory Scale, indicated that while the plaintiff "has difficulty incorporating and recalling verbal information presented in a disjointed fashion, both incorporation into memory and recall is [sic] quite adequate when information is presented in a contextual format." TR 242. Dr. Weeks Farnan also noted that the plaintiff's difficulty in accurate or adequate recall of information could also result from problems in "separating information learned at different times from confabulated memories and a tendency toward retroactive inhibition." Id. The plaintiff's high scores on visual memory tasks suggested that the plaintiff could "ensure her ability to accurately recall information" by "stor[ing] it in a visual format." TR 242.
Dr. Weeks Farnan stated that despite the plaintiff's complaints of aphasia, a basic screening test showed no gross deficits in writing, spelling, naming, or speaking. The plaintiff did exhibit "some mild word retrieval difficulties" during the interview, and Dr. Weeks Farnan stated that "anxiety about these mild deficits tends to exacerbate their severity." TR 243. She concluded that the plaintiff's aphasic symptoms would not significantly impair her ability to "communicate or teach effectively," particularly if she used mnemonic devices to assist her recall in the classroom. TR 243-44.
Dr. Weeks Farnan found no evidence of major depression upon testing, but observed that the plaintiff's emotions tended "to be somewhat labile resulting in a moody and generally negative outlook." TR 242. She recommended that until the plaintiff's
heightened emotional level is better controlled that some diminishment in the number or complexity of demands made upon her is in order. Further, because Ms. McGuire does have some difficulty with tasks which require divided attention, provision of a more structured and simplified routine within the work environment would allow Ms. McGuire to respond at her highest potential.
TR 244.
In early April 1998, following the plaintiff's retirement from teaching and her initial application for disability benefits, Edward Schima, M.D., performed a neurological examination of the plaintiff at the request of Social Security. Describing the plaintiff's story as "tragic," he found "residual problems in speech, memory, concentration, as well as weakness in the right upper extremity." TR 253. He also noted that the plaintiff had "an abnormal score on a verbal fluency test which would place her in a `defective' rating, [and] impairment of recent memory." Id. The plaintiff's problems with verbal memory, fluency, and concentration were "worsened by any minor medical illness [and] would certainly prevent her from functioning effectively as a teacher." Id. Dr. Schima concluded, "I do not think she is capable of continuing in her present position. Since three years have elapsed following her original injury, I do not think there will be any additional improvement." Id.
Although the plaintiff included information about the post-surgical problems she experienced with her right side in her answers to interrogatories propounded by Social Security, TR 175, ¶ 4, and testified about the problems at the hearing, TR 77, Dr. Schima is the only medical doctor who reported any right-side weakness in clinical notes. Dr. Jones's notes state in only two places that the plaintiff had reported to Dr. Jones problems with her right side. See TR 284 (note dated 5-29-97), 285 (note dated 1-24-98).
Later in April 1998, Carolyn Sedlacek, Ph.D., performed a consultative psychological evaluation of the plaintiff, also at the request of Social Security. Dr. Sedlacek administered many of the same tests Dr. Weeks Farnan had administered to the plaintiff a year earlier. On the Weschler Memory Scale Revised, the plaintiff scored in the 40th percentile on verbal memory, the 63rd percentile on visual memory, the 42nd percentile on general memory, the 6th percentile on attention/concentration, and the 45th percentile on delayed recall. TR 257. Other percentile scores included: Digit Span Forward, 17; Digit Span Backward, 12; Visual Memory Span Forward, 12; Visual Memory Span Backward, 36; Logical Memory I, 59; Logical Memory II, 45; Visual Reproduction I, 96; and Visual Reproduction II, 87. TR 258.
Dr. Sedlacek stated that the plaintiff
is experiencing a major depressive disorder. She was quite discouraged about her mental state and although her test results were not that low, it is important to keep in mind that pre-morbid intellectual functioning had been quite likely well above-average and she is aware of the losses in her intellectual functioning. She is having some mild word finding difficulties and can no longer think as quickly as she did previously, for example, she can no longer supervise three class discussions going on in the classroom at one time as she did previously. She quite likely could still function as a tutor or as a teacher's aide but is not able to perform the work of a full-time school teacher.
TR 259.
Also included in the transcript is evidence from Dr. Jones submitted after the plaintiff's application for benefits and which the Appeals Council considered in reviewing the ALJ's unfavorable decision. Dr. Jones prepared a "Medical Statement of Ability to do Work-Related Activities (Mental)" and a Psychiatric Review Technique form covering the period from March 12, 1998, through June 2000. TR 370-382. Dr. Jones assessed the plaintiff's ability to make occupational, performance, and personal/social adjustments as generally poor. TR 371-372. She noted that the plaintiff's organic mental disorder was evidenced by memory impairment, perceptual or thinking disturbances, change in personality, disturbance in mood, and a "loss of measured intellectual ability of least 15 I.Q. points from pre-morbid levels or overall impairment index clearly within the severely impaired range on neuropsychological testing." TR 376. The plaintiff's affective disorder was evidenced by "anhedonia or pervasive loss of interest in almost all activities," decreased energy, difficulty concentrating or thinking, and thoughts of suicide. TR 377. In rating the severity of the plaintiff's impairment, Dr. Jones found the plaintiff moderately limited in activities of daily living; markedly limited in maintaining social functioning; frequently deficient in concentration, persistence, or pace resulting in failure to complete tasks in a timely manner; and continually experiencing episodes of deterioration or decompensation in work or work-like settings which caused the plaintiff to withdraw from that situation or to experience exacerbation of signs and symptoms. TR 381.
Dr. Jones also summarized the plaintiff's treatment history and prognosis in a letter dated October 2, 2000. TR 368-369. She wrote:
In my opinion, Ms. McGuire's depression was worsened by these deficits. In addition, her perception that she is not doing well increases her anxiety. As a result, she has withdrawn almost entirely from any social setting. She has been emotionally more persistently depressed with low motivation and poor concentration. She is able to do some household duties but does not respond well to stressful circumstances. She complains of extremely low energy and her medications have been adjusted in order to try to help with this. However, despite all of the treatment, I do not see Ms. McGuire as functioning well in any kind of work or stress environment, particularly because of the depression and her persistent difficulties with verbal information and word finding. I think she is only able to carry out simple instructions but even at that, her motivation would interfere. I have seen her for the last six years and over time, her personal appearance has deteriorated. I think Ms. McGuire, in some circumstances[,] would attempt to be reliable. However, her memory difficulties and mood would interfere with her ability to do this consistently.
As of February 26, 1999, the plaintiff was taking Synthroid for hypothyroidism, Zocor for elevated cholesterol, Celexa for depression (20 mg. a day), Estrace and Provera for hormone replacement therapy, and Ritalin as a stimulant (20 mg. in morning, 10 mg. in evening).
TR 369.
Employment. The plaintiff returned to the classroom approximately a year after her surgery, but she testified that by March 1998 she knew she was no longer capable of teaching. TR 48-49, 71-73. In February 1998, Dr. Jones wrote to the principal at the plaintiff's school to inform him that although the plaintiff had improved since her surgery, resulting and permanent neurological deficits interfered with the plaintiff's ability to teach and caused her depression, feelings of emotional inadequacy, and emotional distress. The specific problems Dr. Jones identified included difficulty in word finding, difficulty with processing verbal information, lessened cognitive and emotional flexibility, and impaired communication skills. TR 282.
Information provided by the plaintiff's principal and a fellow teacher as part of her original application for benefits indicates that the plaintiff's self-assessment of her professional performance was painfully accurate. TR 155-161. Her fellow teacher, a friend who taught on the other side of a connecting wall from the plaintiff, indicated that after the surgery, the plaintiff shunned social contact because of her memory problems. TR 156, ¶¶ 12, 21. The fellow teacher observed that the more stress the plaintiff experienced, the worse her memory problems became; the memory problems, in turn, compounded the stress and affected the plaintiff's emotional balance and judgment. TR 156, ¶ 16. Professionally, the plaintiff had trouble assembling and keeping track of teaching materials, trouble relating to administrators and her peers, and trouble controlling her students. TR 157, ¶ 23. She could no longer assist other teachers with their computer problems as she had in the past; in fact, she could not even remember passwords or step-by-step procedures for specific computer programs used at the school. Id. Her fellow teacher summarized, "Since the surgery she is a very different person. Her inability to control students and to share [her] previous astounding knowledge has been tragic to see. Her inability to reason logically about ordinary things is heartbreaking at times." Id.
The comments of the plaintiff's principal also reveal the extent of the plaintiff's difficulties when she returned to teaching. He stated that in stark contrast to her pre-surgery performance, after the surgery she "had a problem with recall, presentation of material, is confused about students, their names, what they have done, and so much of the time she just did not seem to know what was going on." TR 158. Changes in the work setting upset or confused her. TR 160. The principal related that the plaintiff's memory problems made it hard for her to follow directions without numerous reminders or to complete tasks. Her memory problems frustrated her, and her frustration caused difficulties in her classroom and with her students. TR 159. The principal stated that he would not rehire the plaintiff "under her present mental/physical state." TR 161.
Hearing Testimony. The plaintiff testified that after she retired from teaching, she did not look for other work because she did not have "the get up and go to get up and go" and because she could not think of any job she could do successfully and consistently. TR 52. She testified that she is able to do some household chores, such as cooking family meals a few times a week, doing some grocery shopping, or washing a load of laundry. TR 54, 56, 58. Although she is able to drive, she does not socialize outside her home, even to attend church. TR 59, 67. The plaintiff still occasionally goes antique shopping. TR 66. The plaintiff spends a few weeks in the summer at a family cabin in Minnesota, and has made other short trips with her family. TR 62-64, 67. She is no longer able to read extensively like she did before the surgery, and passes the day watching television, taking afternoon naps, and waiting for the children to come home from school. TR 61, 68, 76. Nor can the plaintiff use either of her family's two computers; she no longer "understands them." TR 69. She testified that the biggest differences in herself after the surgery were her inability to concentrate and her short-term memory loss — her inability "to do something and know that I'm doing it." TR 64. She stated that her depression had worsened since the surgery and that she cannot motivate herself to do anything. TR 73-74.
Because the plaintiff's husband had not been sequestered prior to the plaintiff's testimony, the ALJ allowed him to testify only about the plaintiff's current functional capacity. He stated that although the plaintiff did do some grocery shopping, the family actually used a food service that delivered eight months of supplies at once. TR 82. He also stated that the plaintiff fixed dinner for the family no more than two or three times a week. TR 84.
A vocational expert also testified at the hearing. The hypothetical which the ALJ posed was allegedly based on a person with the plaintiff's age, education, and work experience with no physical limitations and the following mental limitations:
If [the plaintiff] had a moderate limitation in her ability to understand, remember and carry out detailed instructions, by this I'm saying she can carry out simple, routine work, if she has a moderate limitation in social interaction, and that would be the ability to work in coordination or proximity to others without being distracted by them, as well as interacting appropriately with the general public, and, on a — insofar as routine, uh, persisting on a routine, that there would be a moderate limitation in the ability to complete a normal work day or work week without interruption from the psychologically based symptoms, and to perform at a consistent pace without an unreasonable number of — of length of rest periods. With that functional capacity, could she go back to her past work? . . . And I — I wanted to mention, if I didn't, in addition to the carrying out detailed instructions, there is a moderate limitation in ability to maintain attention and concentration for extended periods.
TR 87.
The vocational expert testified that the plaintiff would not be able to go back to her past work as a high school teacher given the moderate limitations the ALJ outlined in her hypothetical. TR 87. Given those limitations and the plaintiff's transferrable skills, however, the vocational expert testified that the plaintiff would be able to do jobs at the low end of the semiskilled range at the sedentary and light exertional levels. These jobs included early childhood teaching assistant, teacher aide, information clerk, order clerk, and record clerk. TR 88-89. Although not apparent from the hearing testimony, the ALJ stated the vocational expert had found that plaintiff's transferable skills included knowledge and ability to organize and execute a number of different functions simultaneously; preparing lessons plans; conveying information to students in a comprehensive manner; specific knowledge in the subject being taught; knowledge and ability to write reports; and knowledge and ability to use a computer. TR 29.
Significantly, however, the vocational expert testified that the plaintiff could not do any of the jobs identified if the plaintiff's testimony were considered credible. TR 89. The vocational expert explained her conclusion as follows:
[T]he combination of symptoms [the plaintiff] describes include, not, including but not necessarily limited to the level of difficulty she has with concentration, uh, where she, um, has trouble just reading a chapter at a time, the difficulty she has in motivating herself, uh, to any type of activity for any prolonged period of time, her withdrawal, her need to keep things very simplified in order to stay on task, her testimony that she's unable to even subtract, so that her husband has to pay the bills, and her difficulty in recovering information (INAUDIBLE) on a cognitive basis, um, apparently after some time, she's often able to do that but not — not with enough speed that, uh, might be demanded in these jobs, and then also there was some testimony that because of problems with fatigue, she needs to nap two or three times a week in the afternoon.
TR 89-90.
LEGAL STANDARD
An ALJ evaluates a disability claim according to a five-step sequential analysis prescribed by Social Security regulations. The ALJ examines
any current work activity, the severity of the claimant's impairments, the claimant's residual functional capacity and age, education and work experience. See 20 C.F.R. § 404.1520(a); Braswell v. Heckler, 733 F.2d 531, 533 (8th Cir. 1984). If a claimant suffers from an impairment that is included in the listing of presumptively disabling impairments (the Listings), or suffers from an impairment equal to such listed impairment, the claimant will be determined disabled without considering age, education, or work experience. See Braswell, 733 F.2d at 533. If the Commissioner finds that the claimant does not meet the Listings but is nevertheless unable to perform his or her past work, the burden of proof shifts to the Commissioner to prove, first, that the claimant retains the residual functional capacity to perform other kinds of work, and second, that other such work exists in substantial numbers in the national economy. See Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000). A claimant's residual functional capacity is a medical question. See id. at 858.Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000).
Using this analysis, the ALJ concluded that the plaintiff was not disabled within the meaning of the Social Security Act. TR 29; 30, ¶ 8. The ALJ found specifically that the plaintiff had not engaged in substantial gainful activity since March 12, 1998. TR 29. ¶ 2. The ALJ further found that the plaintiff's organic mental disorder, status post condition cerebral aneurysm, and affective mood disorder were "severe" medically determinable impairments that imposed more than slight limitations on her ability to function. Id., ¶ 3; 19-20. The ALJ further found that while these impairments did not meet the Listings and the plaintiff had no physical limitations, the plaintiff's impairments nevertheless limited her ability to perform basic work-related functions as follows:
moderate limitations in the ability to understand, remember and carry out detailed instructions, to maintain attention and concentration for extended periods, to interact appropriately with the general public and socially, to work in coordination with or proximity to others without being distracted by them, and to complete a normal work-day and work week without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods.
TR 30, ¶ 4. The ALJ found that the plaintiff could not perform her past relevant work as a high school teacher, but that she retained the residual functional capacity for semiskilled occupations that the vocational expert identified as existing in the regional and national economies in significant numbers. Id., ¶¶ 5, 6. Finally, the ALJ found the testimony of the claimant and her husband "generally credible," although not "form[ing] the basis for a finding of disability." Id., ¶ 7. The ALJ found that the claimant's testimony was not credible "insofar as it pertained to the inability to perform virtually any type of work activity on a sustained basis at all times since March 12, 1998." TR 26.
When reviewing the decision not to award disability benefits, the district court does not act as a fact-finder or substitute its judgment for the judgment of the ALJ or the Commissioner. Bates v. Chater, 54 F.3d 529, 532 (8th Cir. 1995). Rather, the district court will affirm the Commissioner's decision to deny benefits if it is supported by substantial evidence in the record as a whole. Eback v. Chater, 94 F.3d 410, 411 (8th Cir. 1996). "Substantial evidence is that which a reasonable mind would find as adequate to support the ALJ's decision." Brown v. Chater, 87 F.3d 963, 964 (8th Cir. 1996) (citing Baumgarten v. Chater, 75 F.3d 366, 368 (8th Cir. 1996)). In determining whether the evidence in the record is substantial, the court must consider "evidence that detracts from the Commissioner's decision as well as evidence that supports it." Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999). Yet "when the clear weight of the evidence points to a conclusion that the claimant is disabled, and where further hearings would only delay the receipt of benefits, an order granting benefits is appropriate." Rivera v. Massanari, 176 F. Supp. 892, 897 (S.D.Iowa 2001) (citing Hutsell v. Massanari, 259 F.3d 707, 714 (8th Cir. 2001)).
When, as here, a claimant submits supplemental evidence subsequent to the ALJ's decision, "the record" before the reviewing court "includes the evidence submitted after the hearing and considered by the Appeals Council." Bergmann v. Apfel, 207 F.3d 1065, 1068 (8th Cir. 2000). The reviewing court then determines whether the ALJ's decision "is supported by substantial evidence on the record as a whole, including the new evidence submitted after the determination was made." Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994). The court, in effect, "must decide how the ALJ would have weighed the new evidence had it existed at the initial hearing." Bergmann, 207 F.3d at 1068. "Critically, however, th[e] court may not reverse the decision of the ALJ merely because substantial evidence may allow for a contrary decision." Id. (citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)).
DISCUSSION
The parties agree that the plaintiff is unable to return to her prior employment as a high school teacher. The plaintiff maintains, however, that she is unable to return to any sort of employment because she is disabled. The ALJ discredited the plaintiff's testimony that she could not perform any job because 1) according to the plaintiff's treating psychiatrist, the plaintiff's depression was in remission and controlled by medication; 2) the medical and psychological records with regard to the plaintiff's aphasia symptoms did not support the degree of severity the plaintiff alleged; 3) the plaintiff's daily activities were inconsistent with her alleged mental impairments; 4) none of the plaintiff's treating and consulting physicians stated that the plaintiff was unable to perform any occupation; and 5) the plaintiff was not motivated to work since she had other sources of income.
The ALJ specifically stated that the plaintiff's husband was an architect. The ALJ also noted that the plaintiff's monthly short-term disability payments of $3,690 would be reduced if she returned to work. When taken together, the ALJ wrote, these two facts "suggest the family does not have the financial motivation for the Claimant to return to work as long as other sources of income are available." TR 26. This court hastens to point out, however, that the record is devoid of any direct or inferential evidence to suggest that the plaintiff engaged in financial misconduct following her retirement from teaching or did anything improper in applying for benefits. Any suggestion to the contrary is regrettable.
The plaintiff contends that she is disabled under 20 C.F.R. § 404.1520, based on the ALJ's findings that the plaintiff had not worked since March 12, 1998, and that the plaintiff's impairments were severe. Further, the plaintiff argues that based on the additional medical records which Dr. Jones, the plaintiff's treating psychiatrist, supplied to the Appeals Council, the plaintiff meets the Listing criteria for § 12.02, Organic Mental Disorder, and § 12.04, Affective Disorder. To meet the criteria of § 12.02(A)(7), the plaintiff must demonstrate not only that she has lost cognitive ability as demonstrated by a decline of fifteen points or more on standard intelligence tests, but also that she has lost two of the following under § 12.02(B): marked restriction in activities of daily living, social functioning, or concentration, persistence, and pace, or repeated episodes of decompensation. 20 C.F.R. Pt. 404, Subpt. P, App. 1 (2002).
Upon review of Dr. Jones's additional evidence, however, the Appeals Council rejected Dr. Jones's opinion that the plaintiff met the Listings as well as her opinion that she could "not see Ms. McGuire as functioning well in any kind of work or stress environment." TR 369. The Appeals Council stated:
The present record does not support the degree of limitations indicated by Dr. Jones. This is not to say that you do not have significant mental limitations when compared to your level of functioning when you worked as a teacher. However, the medical and other evidence does not support a finding that you could not do other jobs such as the clerical jobs noted at the hearing by the vocational expert.
TR 5-6.
Having read the transcript of the administrative hearing, reviewed the records available to the ALJ at the time of the decision, and reviewed the additional evidence submitted to the Appeals Council, I find that the ALJ's determination that the plaintiff was not disabled is unsupported by substantial evidence in the record as a whole.
Testing Results. Despite the ALJ's claimed reliance on the results of the intellectual and psychological testing performed in May 1997 by Dr. Weeks Farnan and in May 1998 by Social Security's own consultants, it appears to the court that the ALJ ignored or improperly discounted those results. Specifically, the ALJ did not mention the plaintiff's poor scores on tests administered by Dr. Weeks Farnan requiring cognitive flexibility and divided attention, nor did the ALJ acknowledge the extremely low scores the plaintiff received on relevant portions of the Weschler Memory Scale Revised administered by Dr. Sedlacek. Of particular concern are the plaintiff's scores measuring attention/concentration — the 6th percentile — and measuring certain short-term memory tasks — digit span forward, 17th percentile; digit span backward, 12th percentile; visual memory span forward, 12th percentile; and visual memory span backward, 36th percentile.
Additionally, Dr. Schima, the neurologist who examined the plaintiff at the request of Social Security, found problems in the plaintiff's speech, recent memory, concentration, noting her "abnormal" score on a verbal fluency test placed her in a "`defective' rating." Yet despite the findings of Drs. Weeks Farnan, Sedlacek, and Schima, the ALJ described the plaintiff's limitations as merely "moderate" in constructing the hypothetical for the vocational expert at the hearing and in completing the Psychiatric Review Technique form, TR 32-35.
Further, the ALJ improperly discounted Dr. Jones's evidence as "based only on the Claimant's subjective complaints, rather than on documented clinical findings and for psychological test results." TR 25. "[A] treating physician's evidence is entitled to substantial weight `unless it is unsupported by medically acceptable clinical or diagnostic data.'" Bergmann, 207 F.3d at 1069 (quoting Kirby v. Sullivan, 923 F.2d 1323, 1328 (8th Cir. 1991)). Dr. Jones has been the plaintiff's treating psychiatrist since 1994. Unlike Drs. Sedlacek and Schima, who saw the plaintiff but once, Dr. Jones closely monitored the plaintiff's medical and psychological condition both before and after the surgery. Dr. Jones referred the plaintiff to Dr. Weeks Farnan for evaluation and had access to the psychological report Dr. Weeks Farnan prepared. See TR 237.
Dr. Jones also reported regularly to the plaintiff's disability insurance carrier regarding the plaintiff's condition and her ability to return to work. The record reveals that by January 1999, Dr. Jones was telling the disability insurance carrier that the plaintiff's post-surgical cognitive deficits were permanent and would prevent her from returning to work. TR 324. Dr. Jones's progress note dated February 26, 1999, the last one found in the transcript, indicates that while the plaintiff could perform some light household tasks, neither her cognitive status nor her social functioning had improved. In fact, the progress note describes the plaintiff as "disabled." TR 323.
Given the ALJ's failure to acknowledge the severity of the plaintiff's post-surgical memory and concentration losses as established by testing done by Social Security's own consultants, along with the ALJ's rejection of Dr. Jones's January 1999 opinion about the plaintiff's inability to work, the ALJ obviously would also have rejected or discounted the evidence from Dr. Jones that was presented to the Appeals Council. An ALJ is entitled to "discount or even disregard the opinion of a treating physician . . . where a treating physician renders inconsistent opinions that undermine the credibility of such opinions." Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000) (citing Cruze v. Chater, 85 F.3d 1320, 1324-25 (8th Cir. 1996)). But such is not the case here. Dr. Jones's regular progress notes on the plaintiff following the plaintiff's retirement from teaching provide the best evidence of the severity and permanence of the plaintiff's cognitive deficits. In contrast to the Psychiatric Review Technique form completed by the ALJ and a second apparently completed by an agency psychologist, see TR 261-277, Dr. Jones's Psychiatric Review Technique form describes a much more severe degree of limitation, see TR 370-382. Since Dr. Jones was the plaintiff's treating physician and closely monitored the plaintiff's condition on a regular basis, Dr. Jones's opinion was certainly worth more weight than that accorded by the ALJ.
The psychologist whose name appears on the form is Linda Schmechel, Ph. D. Apart from an entry in the "list of Exhibits" identifying her as a "DDS physician," TR 3, Dr. Schmechel is not otherwise identified in the record.
Credibility Determination. The vocational expert testified in response to a hypothetical question that if the plaintiff's testimony were entirely credible, the plaintiff would not be able to perform any of the jobs the vocational expert had identified in her testimony. In the decision, the ALJ described the plaintiff as "generally credible," but determined that the plaintiff was not credible insofar as she testified she could not perform any jobs at all. The plaintiff contends that she cannot be both credible and incredible, and that the ALJ therefore improperly evaluated the evidence when assessing the plaintiff's credibility.
To assess a claimant's credibility, the ALJ must consider "all of the evidence, including prior work records and observations by third parties and doctors regarding daily activities, the duration, frequency, and intensity of pain, precipitating and aggravating factors, the dosage, effectiveness, and side effects of medication, and functional restrictions." Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000) (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)). An ALJ is precluded from discounting a claimant's complaints "solely because they are not fully supported by the objective medical evidence, but the complaints may be discounted based on inconsistencies in the record as a whole." Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000) (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)).
The ALJ went to great lengths to examine "inconsistencies" in the record in order to discredit the plaintiff's complaints. First, although the plaintiff testified that her depression was worsening, the ALJ noted that Dr. Jones believed that the plaintiff's depression was in partial remission and controlled by medication. If a condition is controlled by medication, it cannot be considered disabling. Wilson v. Chater, 76 F.3d 238, 241 (8th Cir. 1996) (citing Stout v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993)). However, the plaintiff's primary disabling condition is not depression but rather her post-surgical cognitive deficits. As Dr. Jones points out, those deficits now exacerbate the plaintiff's depression. TR 369.
Second, the ALJ noted that none of the treating or consulting doctors or even the plaintiff's husband found the plaintiff's aphasia as severe as the plaintiff believed it was. It is undisputed, however, that the plaintiff's memory, concentration, verbal fluency, and word retrieval were negatively affected by the surgery. The plaintiff's speech improved somewhat with therapy and time, but obvious deficits remain. Even a superficial reading of the transcript of the hearing reveals the plaintiff's difficulties with verbal continuity, completing thoughts, short-term memory, and word retrieval. See, e.g., TR 49, 50, 55, 72-73, 80.
Third, the ALJ found that the plaintiff's daily activities, described earlier in this opinion, were "inconsistent with those of an individual who is unable to sustain attention and concentration for task completion, to maintain a regular schedule, to interact socially with other individuals if they so choose, and/or to engage in physical work-related activities." TR 26. In reaching this conclusion, the ALJ rejected or minimized other evidence clearly suggesting that the plaintiff's impairments would make it nearly impossible for her to function in most job settings, even those identified by the vocational expert at the hearing. The plaintiff's impairments plainly have reduced or deprived her of the ability to engage in many of her former daily activities. For example, because she can no longer subtract correctly, the plaintiff is no longer able to pay her family's bills or even to figure out how to make change. TR 58-59. The plaintiff, who at one time was something of a computer expert, can no longer even use a computer because she does not understand them. TR 69, 157. Once a voracious reader, the plaintiff no longer has the concentration or motivation to finish more than the first chapter of a book. TR 62, 68. Further, although the plaintiff successfully managed classrooms full of teenagers before her surgery, she has now withdrawn to the quiet isolation of her home. TR 59-60, 65-67, 72, 73-74. Given the realities of the plaintiff's post-surgical impairments, her prospects of finding, much less keeping, a job as a teacher's aide or an early childhood teaching assistant would be nearly nil.
Finally, the ALJ comments that while several of the medical doctors or psychologists who saw the plaintiff indicated that she could not return to teaching, none stated that the plaintiff was unable to work at all. This lack of medical restrictions on the plaintiff's activities, the ALJ contends, is inconsistent with the plaintiff's claim of being unable to work at all. See Brown v. Chater, 87 F.3d 963, 965 (8th Cir. 1996) (citing Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir. 1993)). The record does not establish, however, that the doctors were ever asked their opinions about whether the plaintiff could work at all. Rather, the record indicates that Dr. Jones's pre-hearing letters addressed only the plaintiff's ability to return to teaching; Dr. Schima's and Dr. Sedlacek's reports were likewise geared toward the issue of whether the plaintiff could return to teaching, although Dr. Sedlacek did add that she thought the plaintiff might be able to function as a tutor or a teacher's aide. TR 259. "A treating doctor's silence on the claimant's work capacity does not constitute substantial evidence supporting an ALJ's functional capacity determination when the doctor was not asked to express an opinion on the matter and did not do so, particularly when that doctor did not discharge the claimant from treatment." Hutsell v. Massanari, 259 F.3d at 712 (citing Lauer v. Apfel, 245 F.3d 700, 705 (8th Cir. 2001)).
Furthermore, the ALJ's position would not permit taking into account the supplemental evidence of the plaintiff's treating physician since 1994, Dr. Jones. While the ALJ has the primary responsibility for assessing a claimant's residual functional capacity, "a claimant's residual functional capacity is a medical question." Id. at 711. To determine residual functional capacity, the ALJ must "`consider at least some supporting evidence from a [medical] professional.'" Id. at 712 (quoting Lauer v. Apfel, 245 F.3d at 704) (alteration in original). Dr. Jones's "Medical Statement of Ability to do Work-Related Activities (Mental)," TR 348-350, describes a patient whose ability to make occupational, performance, and personal/social adjustments is generally poor. Her Psychiatric Review Technique, TR 359-367, in marked contrast to those prepared by the ALJ and Dr. Schmechel, indicates that the plaintiff not only exhibits memory impairment; perceptual or thinking disturbances; change in personality; disturbance in mood; and a loss of at least 15 I.Q. points from premorbid levels, TR 361, but also demonstrates marked difficulties in maintaining social functioning; marked deficiencies in concentration, persistence or pace resulting in failure to complete tasks in a timely manner; and continual episodes of deterioration or decompensation in work or work-like settings, TR 366. These medical findings not only establish that the plaintiff is unable to work; they also establish that the plaintiff meets the Listing for 12.02, Organic Mental Disorders.
Under "occupational adjustments," Dr. Jones checked the boxes indicating that the plaintiff had a poor ability to follow work rules; relate to co-workers; deal with the public; use judgment; interact with supervisor(s); deal with work stresses; function independently; and maintain attention/concentration. Under "performance adjustments," Dr. Jones checked the boxes indicating the plaintiff had a poor ability to understand, remember, and carry out either complex or simple job instructions, and no ability to understand, remember, and carry out detailed but not complex job instructions. TR 349. Under "personal/social adjustments," Dr. Jones checked the boxes indicating that the plaintiff had a poor ability to maintain personal appearance or to relate predictably in social situations; a fair ability to behave in an emotionally stable manner; and no ability to demonstrate reliability. TR 350.
Thus, the alleged inconsistencies on which the ALJ relied to discredit the plaintiff's testimony regarding her subjective complaints fail to support the ALJ's finding that the plaintiff was not fully credible with regard to her inability to perform any job.
Hypothetical Question. As a final matter, the court finds that the ALJ's hypothetical to the vocational expert was defective. Despite finding that the plaintiff's medically determinable limitations were severe in the second step of the analysis, TR 19, in the hypothetical the ALJ nevertheless described the following limitations as only "moderate" with regard to the plaintiff's ability to perform other work-related activities: to remember, understand, and carry out detailed instructions; to interact socially; to complete a workweek; and to maintain attention and concentration for extended periods.
When the plaintiff's attorney cross-examined the vocational expert on what the term "moderate limitations" meant, the vocational expert responded that it meant "[l]imited but does not preclude ability to work. . . . [L]imited that — that the performance is satisfactory." TR 90-91. The ALJ then intervened to state, "A moderate, to my mind, is not as serious. It would not be a serious restriction. Marked would be interferes seriously for that purpose." TR 92. The vocational expert concurred with the ALJ's definition. Id.
The ALJ's hypothetical is not based on substantial evidence in the record as a whole, since a description of the plaintiff's limitations as "moderate" fails to take into account the plaintiff's concentration, attention, and memory scores on psychological examinations, the evidence given by the plaintiff's former colleagues, or Dr. Jones's evaluation of the plaintiff in 2000 on the Psychiatric Review Technique. The vocational expert's opinion that the plaintiff could perform certain semiskilled jobs existing in national and regional economies is thus unfounded and does not constitute substantial evidence on the record as a whole.
Further, the vocational expert's list of transferable skills identified in the ALJ's opinion, see supra at 11, are highly suspect, given the evidence in the record. For example, although the plaintiff's colleague wrote that the plaintiff could no longer use the computer, TR 157, and the plaintiff herself testified that she no longer "understood" computers, the vocational expert nevertheless found that the plaintiff had the transferable skill of using computers. The vocational expert also said that the plaintiff retained the skills to "execute a number of different functions simultaneously" and to "convey information in a comprehensive manner to students," TR 29, despite substantial evidence to the contrary. The plaintiff scored poorly on tests requiring cognitive flexibility and divided attention. Further, the plaintiff's principal and a former colleague both indicated the plaintiff could no longer manage classrooms filled with active teenagers nor teach the subject matter she had spent a lifetime mastering. TR 156-57, 158-59. Her principal stated that "so much of the time she just did not seem to know what was going on." TR 158. While the plaintiff may retain some skills from her years of classroom service and from her academic pursuits, they are obviously not those that the vocational expert identified. Hence, the vocational expert's opinion is not substantial evidence that the plaintiff would be able to perform the jobs the vocational expert identified.
CONCLUSION
The neurological deficits resulting from the plaintiff's surgery have disrupted the course of her life and deprived her of the ability of to work. While Dr. Jones's progress notes suggest that the plaintiff is maintaining under her current regimen, they do not indicate that the plaintiff's concentration, memory, or speech will ever improve. The plaintiff's deficits are permanent and severe. Her persistent depression is somewhat controlled by medication, but is exacerbated by her neurological deficits. Hence, any descriptions of the plaintiff in Dr. Jones's notes as "doing well" are irrelevant to the plaintiff's "ability to work or to her work-related functional capacity." Hutsell v. Massanari, 259 F.3d at 712. I find that the ALJ's decision that the plaintiff is not disabled is unsupported by substantial evidence in the record as a whole. The Commissioner's decision is therefore reversed.
A remand to take additional evidence would only delay the receipt of benefits to which the plaintiff is entitled, especially since Social Security subsequently found the plaintiff disabled one day after the ALJ's decision in this case. This case is therefore remanded to the Commissioner for computation of benefits from March 12, 1998, through January 31, 2000.
IT IS THEREFORE ORDERED:
1. The Commissioner's decision in this matter is reversed, and judgment is hereby entered for the plaintiff;
2. This matter is remanded to the Commissioner for computation of benefits from March 12, 1998, through January 31, 2000; and
3. Entry of this judgment will trigger the running of the time in which to file an application for attorney's fees under 28 U.S.C. § 2412(d)(1)(B) (Equal Access to Justice Act).