Opinion
Civil No. 99-1203-FR
September 13, 2000
Richard A. Sly, Portland, Oregon, Attorney for Plaintiff.
Kristine Olson, United States Attorney and William W. Youngman, Assistant United States Attorney, Portland, Oregon and Norman M. Barbosa, Special Assistant United States Attorney, Seattle, Washington, Attorneys for Defendant.
ORDER
IT IS HEREBY ORDERED that the plaintiff's motion for order of summary judgment or, alternatively, remand (#16) is GRANTED; the decision of the Commissioner is REVERSED, and this action is remanded to the Commissioner for further proceedings.
The plaintiff, Geneva K. Mortenson, brings this action pursuant to section 205(g) of the Social Security Act (the Act), as amended, 42 U.S.C. § 405(g), seeking judicial review of the decision of the Commissioner of Social Security (the Commissioner) denying her application for disability insurance benefits under Title II of the Social Security Act.
BACKGROUND
Mortenson filed an application for a period of disability on August 24, 1996, alleging that the date of the onset of her disability was June 1, 1994. Mortenson last met the insured status requirements of the Social Security Act on December 31, 1995. Her application was denied initially and upon reconsideration. On April 29, 1998, Mortenson, represented by counsel, appeared and testified before Administrative Law Judge Joseph D. Schloss (the ALJ), as did her husband and her daughter.
On May 14, 1998, the ALJ issued a decision finding that Mortenson had failed to meet her burden of proving that she suffered a severe medically determinable mental or physical impairment at any time before December 31, 1995, the date her insured status expired. The decision of the ALJ denying social security disability benefits to Mortenson became the final decision of the Commissioner when the Appeals Council declined to review the decision of the ALJ.
FACTS
Geneva Mortenson was forty-eight years old when the ALJ denied her claim for social security disability benefits. Mortenson has an eleventh grade education and has received training as an optician. Her past relevant work experience was as an optician, the manager of an optometry business, and an owner/operator of an optometry business. Mortenson's work activity as the owner/manager of an optical business ended in June of 1994.
In May of 1993, Mortenson was arrested at her business as a result of a judicial contempt proceeding. She was handcuffed in front of her adult children and taken to jail. Mortenson testified at the hearing before the ALJ that she was released from jail the following day, and that no further action had been taken on the matter. She testified that the incident affected her mental outlook and health. Mortenson stated that she became socially withdrawn, began to have difficulty concentrating, and had continuing fears of police officers. Mortenson testified before the ALJ that she had not sought treatment for the problem because she was too embarrassed, and she could not afford to obtain treatment.
Mortenson's husband and her daughter testified before the ALJ that there were significant changes in Mortenson's functioning after her arrest in May of 1993, and that her problems had worsened over time.
A series of burglaries at Mortenson's optical business forced Mortenson out of business in June of 1994. Mortenson has not worked since June of 1994.
On May 6, 1994, Mortenson called the Portland Clinic to request an appointment, stating that she was experiencing emotional problems. Mortenson told the clerk at the clinic that there had been a break-in at her business; that she was very upset; and that she was feeling like she would have a nervous breakdown.
On May 20, 1994, Mortenson was seen by a doctor at the Portland Clinic. She was reported as stable.
On September 19, 1994, Mortenson was seen by a doctor at the Salem Clinic. She complained that her ears had been bothering her since she took a "dunk" in the Columbia River some two months before her appointment. Ear drops were prescribed.
On February 10, 1995, Mortenson was seen by Dr. Paul Young at the Salem Clinic for several problems including stress and a rash on her toe. Dr. Young noted that "[s]he is quite anxious and has panic attacks which she wakes up [sic] in the middle of the night panicky and sweaty." TR 324. Dr. Young discussed stress reduction methods with Mortenson including daily exercise, good nutrition, rest and medication. Dr. Young noted that Mortenson was experiencing migraine headaches with some photophobia for which she had taken Midrin with good relief with occasional Vicodin. TR 325.
On February 24, 1995, Mortenson was seen by Dr. John Fitzgerald. Dr. Fitzgerald noted that "[t]he most pressing problem at the moment is stress." TR 322. Dr. Fitzgerald noted that Mortenson had lost her business due to multiple burglaries and was under a great deal of financial pressure. He noted that both she and her husband were having trouble coping at home, and that both have had sleep disturbances. Dr. Fitzgerald noted that Mortenson "does not feel that counseling would be appropriate at this time." Id. However, he prescribed Zoloft and Clonazepam to relieve Mortenson's stress and counseled her on stress management techniques. On March 15, 1995, Dr. Fitzgerald reported that Mortenson had gotten considerable relief from her anxiety type symptoms because of the Zoloft, and that "[s]he still has her stress related problems but finds that she has more energy to deal with them while on this medication." TR 321.
On January 7, 1996, Mortenson was seen by Dr. Donald Orwick at the Salem Clinic for migraine headaches. Mortenson reported vomiting and photophobia.
On April 2, 1996, Mortenson was seen by Dr. Young for chronic back pain.
On April 16, 1996, Mortenson was seen by Dr. Gene O'Neill on referral from Dr. Young for an evaluation as to the degree of her stress and depression. Mortenson told Dr. O'Neill that she felt that she had been under a great deal of stress and anxiety for about two to three years. Dr. O'Neill drafted a treatment plan but noted Mortenson's reluctance to engage in mental health treatment. Dr. O'Neill referred Mortenson to Dr. Steven Kiel for an evaluation of her need for antidepressant medication.
On June 24, 1996, Mortenson was seen by Dr. Kiel. Mortenson informed Dr. Kiel of her problems with stress and with the symptoms of anxiety and depression that she had had since her wrongful arrest in 1993. Dr. Kiel noted that "[w]ith all of these symptoms, she feels poorly capable of returning to work and has not worked in the past two years." TR 387. Dr. Kiel diagnosed her health problems as post-traumatic stress disorder and major depression, single episode, moderate. Dr. Kiel recommended antidepressant medication. Mortenson agreed to a trial of the drug, Desipramine.
On August 23, 1996, in a one-month follow-up, Dr. Kiel noted no improvement in Mortenson's anxiety or mood. Dr. Kiel changed Mortenson's prescription from Desipramine to Sertraline and set a follow-up visit for another month.
On September 17, 1996, Mortenson advised Dr. O'Neill that she had attempted to look for work. Mortenson reported to Dr. O'Neill that she had applied for a job and was turned down because a criminal background check showed that she had been arrested. Dr. O'Neill reported that Mortenson said that she was getting worse rather than better. TR 382.
On October 29, 1996, Mortenson told Dr. Kiel that she had felt that the Sertraline was beginning to help until she was confronted with the stigma of her arrest. Overall, Mortenson reported a mild improvement to Dr. Kiel. Dr. Kiel increased Mortenson's dosage of Sertraline and recommended a follow-up visit in six weeks.
On December 30, 1996, Mortenson was again seen by Dr. Kiel. She reported continuing anxiety and depression. Dr. Kiel diagnosed Mortenson as suffering from chronic bipolar disorder.
On March 29, 1997, Dr. Kiel reported that Mortenson was experiencing improvement on a different medication, and on April 22, 1997 in another follow-up visit, Dr. Kiel noted that Mortenson reported "some improvement in anxiety depression though still present to [a] significant degree nearly every day." TR 376.
On April 6, 1999, nearly a year after the decision of the ALJ, Bob Torres, Ph.D., completed a Mental Impairment Questionnaire provided by Mortenson's attorney. Dr. Torres diagnosed Mortenson with a major depressive disorder, recurrent, moderate and PTSD and indicated that Mortenson's impairments caused several marked limitations of function.
On May 14, 1998, the ALJ issued a decision finding that "[o]n December 31, 1995, the date her insured status expired, [Mortenson] did not have any impairment which more than minimally limited her ability to perform basic work-related functions; therefore, she did not have a severe impairment." TR 21. The ALJ explained, in part:
I have found the allegations and testimony not entirely credible. The medical reports of record indicate Ms. Mortenson did not require significant treatment for chronic mental or physical impairments from June 1, 1994, through December 31, 1995. The documentary reports also reveal conflicts between the claimant's allegations she stopped working due to emotional problems and statements she made in 1995 that she was forced to close her business following losses from burglaries. . . . The medical treatment reports do not indicate physical problems interfered with the claimant's ability to work from June 1994 through December 31, 1995. . . .
. . . .
The medical reports of record do not document the diagnosis of a medically determinable mental disorder on or before the date the claimant's insured status expired. A review of the documentary evidence reveals that Ms. Mortenson reportedly had symptoms of anxiety during 1995 related to financial pressure associated [with the] loss of her business following multiple burglaries. Furthermore, while the few medical reports from 1994 ad [sic] 1995 indicate the claimant was experiencing some symptoms of stress and was given a prescription for Zoloft, the reports do not indicate her ability to perform basic activities of work was limited by the symptoms. To the contrary, the three progress notes which mention stress or anxiety indicate she was advised about techniques to manage appropriate feelings of stress relative to her situation and she did not need counseling for the symptoms. Moreover, on March 15, 1995, the last documented time she saw her doctor during 1995, she reported she had gotten good relief of her anxiety type symptoms from Zoloft. When she next went to see the doctor, in January 1996, she sought treatment for a migraine headache and did not complain of anxiety symptoms. . . .
. . . No treating or examining doctor has reported that the claimant's ability to perform basic activities of work was significantly limited by a medically determinable mental or physical impairment through December 31, 1995.
TR 19-20.
CONTENTIONS OF THE PARTIES
The plaintiff, Geneva Mortenson, contends that 1) the post-insured date and post-hearing medical reports, including a psychological report of April 6, 1999 by Dr. Torres, are relevant and material evidence which provides a factual and legal basis for a change in the decision of the ALJ; 2) that the ALJ erred in finding that she suffered no severe impairment; and 3) that the Commissioner should be required to use the testimony of a medical expert to determine the onset date of the presence of a "severe" impairment and the level of her disability prior to December 31, 1995.
The Commissioner contends that the medical evidence of record is insufficient to meet Mortenson's burden of proving a severe medically determinable impairment prior to the date she was last insured; that the Commissioner was not required to use the testimony of a medical expert to determine the onset date of the presence of a "severe" impairment; and that the decision of the Commissioner should be affirmed.
STANDARD OF REVIEW
The burden of proof rests upon the claimant to establish her entitlement to disability benefits. To meet this burden, the claimant 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).
The Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment" 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). The Act also provides that a claimant shall be determined to be under a disability only if his or her impairments are of such severity that the claimant is not only unable to do his or her previous work, but cannot, considering the claimant's age, education, and work experience, engage in any other substantial gainful work which exists in the national economy. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).
The Commissioner has established a five-step sequential process for evaluating and determining whether a person is disabled under the Act. 20 C.F.R. § 404.1520. The first step is to determine whether the claimant has engaged in substantial gainful activity after the alleged onset of disability. The second step is to determine whether the claimant has a medically severe impairment or combination of impairments. 20 C.F.R. § 404.1520(c).
An impairment must significantly limit a claimant's physical or mental ability to do basic work activities in order to be considered "severe." See 20 C.F.R. § 404.1520(c). The term "basic work activities" is defined as the abilities and aptitudes necessary to do most jobs. See 20 C.F.R. § 404.1521(b). Examples of basic work activities include physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling; capacities for seeing, hearing and speaking; understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, co-workers, and usual work situations; and dealing with changes in a routine work setting. See C.F.R. § 404.1521(b)(1-6). Lastly, a claimant has the burden of proving that such an impairment existed prior to the expiration of his or her disability insured status.Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996).
The findings of the Commissioner are conclusive [ 42 U.S.C. § 405 (g)], and the decision of the Commissioner to deny benefits will be overturned only if it is not supported by substantial evidence or it is based on legal error. _Matney on behalf of Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). Substantial evidence is "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but is "less than a preponderance," Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. l975). Desrosiers v. Secretary of Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988).
In evaluating the evidence, this court looks at the record as a whole, weighing both the evidence that supports and detracts from the Commissioner's conclusion. Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990). The trier of fact, and not this reviewing court, must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. Richardson, 402 U.S. at 400; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984).
ANALYSIS Severe Impairment
The ALJ concluded that "[o]n December 31, 1995, the date her insured status expired, the claimant did not have any impairment which more than minimally limited her ability to perform basic work-related functions; therefore she did not have a severe impairment." TR 21.
Mortenson contends that she suffered from a severe and totally disabling impairment prior to the expiration of her insured status in December of 1995. Mortenson argues that there is evidence in the record to support this contention which was not appropriately taken into consideration by the ALJ or the Appeals Council. Mortenson further contends that the ALJ should have taken into consideration the medical reports made within a few months of her last insured date, and that the Appeals Council should have reviewed the case in light of the post-hearing report submitted by Dr. Torres.
The Commissioner contends that the medical reports of record indicate that Mortenson did not require significant treatment for any chronic mental or physical impairments prior to December 31, 1995. The Commissioner notes that the mental health problems reported by Mortenson to Dr. Young in February of 1995 discount any impairment because Dr. Young noted in March of 1995 that Mortenson "has gotten good relief of her anxiety type symptoms from Zoloft." TR 321. The Commissioner relies upon the fact that Mortenson did not seek further treatment until January of 1996 when she saw Dr. Orwick for migraine headaches and did not report any anxiety type problems at that time. The Commissioner contends that the additional extensive treatment Mortenson received for her anxiety problems beginning in April of 1996 is not relevant now because her insured status expired on December 31, 1995.
The second step in the five-step sequential process for determining whether a person is disabled under the Act is to determine whether the claimant has a medically severe impairment. 20 C.F.R. § 404.1520(c). In Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996), the United States Court of Appeals for the Ninth Circuit explained that "the step-two inquiry is a de minimis screening device to dispose of groundless claims." An impairment or combination of impairments can be found "not severe" only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work. Id. A severe impairment or combination of impairments exists when the "evidence establishes more than a minimal effect on an individual's ability to do basic work activities. Powell v. Chater, 959 F. Supp. 1238, 1242-43 (C.D.Cal. 1997). If the evidence presented by the claimant presents more than a "slight abnormality," the step two requirement of "severe" is met, and the sequential evaluation process should continue. Smolen, 80 F.3d at 1290.
The medical records in this case establish that Mortenson sought medical treatment for mental health problems as early as February of 1995. On February 24, 1995, Dr. Fitzgerald of the Salem Clinic reports "[t]he most pressing problem at the moment is stress." TR 322. Dr. Fitzgerald prescribed Zoloft and counseled Mortenson on stress management techniques. On March 15, 1995, Mortenson returned to see Dr. Fitzgerald who noted that "[s]he still has her stress related problems but finds that she has more energy to deal with them while on [Zoloft]." TR 321.
In early 1996, Mortenson's husband obtained Kaiser medical insurance. TR 73. On March 6, 1996, Mortenson filled out a Personal Health Profile for Kaiser Permanente noting under emotional or mental problems: "Stress-Extreme," TR 371, and noting under health concerns you would like to discuss with your health care provider: "Stress." TR 372. Beginning in April of 1996, Mortenson began to receive medical care on a regular basis for emotional and mental problems, including prescription drugs and counseling. On June 24, 1996, Dr. Kiel evaluated Mortenson and diagnosed her as suffereing from post-traumatic stress syndrome and a major depression. TR 387. He noted that this diagnosis was made within six months of the last date that Mortenson was insured, and that fact should be taken into consideration in light of the entire record.
Mortenson, her husband, and her daughter testified that serious mental health problems began to develop for Mortenson after her arrest in May of 1993. The medical records show that Mortenson reported this date as the onset date of her medical problems to medical providers well before she filed an application for disability benefits in this case.
The record in this case does not support a stage two determination of no severe impairment prior to December 31, 1995. Given the de minimis standard for a stage two determination of severe impairment and the record in this case, this court is compelled to remand to the Commissioner for further proceedings.
The court concludes that the ALJ stopped too soon in his analysis of this case when he made a finding of no severe impairment. The law is clear that "severe" under the Act means "more than minimal." Smolen, 80 F.3d at 1290. The finding of the ALJ that Mortenson's mental problems did not have more than a minimal effect on her ability to perform work activities does not take into consideration the record as a whole.
CONCLUSION
The plaintiff's motion for order of summary judgment or, alternatively, remand (#16) is granted. The decision of the Commissioner is reversed. This action is remanded to the Commissioner for further proceedings.