Opinion
CV 20-00431-TUC-RCC (LAB)
09-07-2021
Mulhieldin M. Mulhieldin, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
LESLIE A. BOWMAN UNITED STATES MAGISTRATE JUDGE
The plaintiff, Mulhieldin M. Mulhieldin, filed this action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). (Doc. 1, p. 1)
The case has been referred to the United States Magistrate Judge pursuant to the Rules of Practice of this court. (Doc. 11)
The Magistrate Judge recommends that the District Court, after its independent review, reverse the final decision of the Commissioner and remand for further proceedings. The ALJ's finding that the claimant does not have a severe mental impairment was error in light of the claimant's three episodes of decompensation.
PROCEDURAL HISTORY
On December 15, 2016, Mulhieldin constructively filed applications for disability insurance benefits pursuant to Title II and supplemental security income pursuant to Title XVI of the Social Security Act. (Doc. 21-3, p. 17) He alleged disability beginning on September 15, 2016, due to “mental problems.” (Doc. 21-7, p. 7)
Mulhieldin's applications were denied initially and again upon reconsideration. (Doc. 21-7, p. 7) He requested review and appeared with counsel at a hearing before Administrative Law Judge (ALJ) Laura Havens on June 26, 2019. (Doc. 21-3, p. 34) In her decision, dated September 25, 2019, the ALJ found that Mulhieldin was not disabled because he did not have a severe medical impairment. (Doc. 21-3, pp. 17-26)
On August 13, 2020, the Appeals Council denied Mulhieldin's request for review making the decision of the ALJ the final decision of the Commissioner. (Doc. 21-3, p. 2) Mulhieldin subsequently filed this action seeking review of that final decision. (Doc. 1)
Work History and Medical History
At the time of the hearing, Mulhieldin was working part-time as a cashier in a smoke shop. (Doc. 21-3, p. 41) He previously worked as a caregiver and a security guard. (Doc. 21-3, p. 43)
Mulhieldin testified that if he is in a good mood, he can take care of himself. (Doc. 21-3, p. 44) He can cook or clean, do laundry, go grocery shopping, visit friends, or go to work. (Doc. 21-3, pp. 44-46) If he is depressed or has a nightmare the night before, he stays home. Id. He has a depressive episode two or three times per week. (Doc. 21-3, p. 44)
The medical record contains numerous entries describing Mulhieldin's ongoing mental health treatment. There are three specific instances of inpatient treatment.
On September 28, 2016, he received inpatient treatment at Connections, AZ for depression with command auditory hallucinations and suicidal ideation with a plan. (Doc. 21-8, p. 104) He reported two previous suicide attempts, the last in 1997. (Doc. 21-8, p. 104) Mulhieldin was diagnosed with major depressive disorder, recurrent episode with psychotic features. (Doc. 21-8, p. 105) In October of 2016, he established mental health care with CODAC. (Doc. 21-8, p. 51)
On April 4, 2017, Mulhieldin was admitted to the psychiatric unit at Sonora Behavioral Health Hospital. (Doc. 21-8, pp. 161-163) He had “reportedly not been sleeping or eating for [the] past 2 days . . . state[ing] that he has remained compliant with prescribed meds, though [he] has continued to hear the voice of ‘multiple people' telling him that ‘they want to kill me'.” Id. Mulhieldin was diagnosed with major depressive disorder, recurrent episode with psychotic features. (Doc. 21-8, p. 158) On April 14, 2017, he reported that his new medications had reduced the voices in his head from 5-6 times a day to 1-2 times every other day. (Doc. 21-9, p. 2)
On April 23, 2018, Mulhieldin was admitted to the crisis clinic after trying to cut himself with a knife. (Doc. 21-9, p. 71) He said, “they're trying to kill me.” Id. Mulhieldin was diagnosed with major depressive disorder, recurrent episode with psychotic features. (Doc. 21-9, p. 72) He was discharged on April 26, 2018. (Doc. 21-9, p. 124)
Previously, Mulhieldin was examined by Glenn Marks, Ph.D., for the state Disability Determination Services on February 20, 2017. (Doc. 21-8, p. 139) Mulhieldin reported that he was born in Egypt and raised in Sudan. Id. He was kidnapped and beaten on several occasions, which he believed was the start of his memory problems. Id. Eventually, he resettled in the United States eight or nine years ago. Id. Mulhieldin reported that he has memory problems and relies on his friends to remind him to take his medications and take a shower. (Doc. 21-8, pp. 139-140) “They take him to the grocery store and apparently provide a high level of oversight.” (Doc. 21-8, p. 140) Mulhieldin “indicated that he sometimes ‘sees people,' and at times he perceives that these visual hallucinations are trying to hit him or fight him.” Id. “He also reported that he talks to people who are not there, and that even though he cannot fully understand what they are saying, he has a sense that these voices are malevolent.” Id. “He described having nightmares most nights.” Id.
Marks diagnosed mood disorder, not otherwise specified, and complaints of memory difficulties. (Doc. 21-8, p. 141) Marks found Mulhieldin's “polite and calm demeanor stood in stark contrast to his reported cognitive problems, to such an extent that much of his reporting was questionable.” Id. He opined that Mulhieldin's limitations “are expected to last 12 continuous months from the date of [the] exam.” (Doc. 21-8, p. 143) He explained that “this claimant's report cannot be validated, but based on his report and observations, he appears to have significant difficulty even with day-to-day routines and reports that he needs assistance from his roommates to remember to take medication, bathe and eat.” Id. He opined that Mulhieldin is not “capable of managing benefit payments in his[] own interest.” Id.
In August of 2019, Mulhieldin was examined by Toni Leo, Ph.D., for the state Disability Determination Services. (Doc. 21-11, p. 13) She noted that Mulhieldin “has experienced depressed mood since 1995/6.” Id. She documented his “two previous suicide attempts at home.” Id. She did not mention his inpatient treatment. Id. It is unclear whether she had access to this portion of his medical record.
Leo administered a “Mini Mental State [sic] Exam.” (Doc. 21-11, p. 14) She diagnosed schizoaffective disorder, PTSD (post-traumatic stress disease), and anxiety disorder, not otherwise specified. (Doc. 21-11, p. 15) Leo opined that Mulhieldin had “mild” limitation in his ability to “understand and remember complex instructions” and “ability to make judgments on complex work-related decisions.” (Doc. 21-11, p. 16) She further opined that he had “mild” limitation in his ability to “respond appropriately to usual work situations and to changes in a routine work setting.” (Doc. 21-11, p. 17) Nevertheless, she believed Mulhieldin cannot manage benefits in his own best interest. (Doc. 21-11, p. 18)
CLAIM EVALUATION
Social Security Administration (SSA) regulations require that disability claims be evaluated pursuant to a five-step sequential process. 20 C.F.R. §§ 404.1520 and 416.920. The first step requires a determination of whether the claimant is engaged in substantial gainful activity. Id. If so, the claimant is not considered disabled and benefits are denied. Id.
If the claimant is not engaged in substantial gainful activity, the ALJ proceeds to step two, which requires a determination of whether the claimant has a severe impairment or combination of impairments. Id. In making a determination at step two, the ALJ uses medical evidence to consider whether the claimant's impairment significantly limits or restricts his or her physical or mental ability to do basic work activities. Id. If the ALJ concludes the claimant has no severe impairments, the claim is denied. Id.
Upon a finding of severity, the ALJ proceeds to step three, which requires a determination of whether the impairment meets or equals one of several listed impairments that the Commissioner acknowledges are so limiting as to preclude substantial gainful activity. Id. If the claimant's impairment meets or equals one of the listed impairments, then the claimant is presumed to be disabled and no further inquiry is necessary. Ramirez v Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993). If the claimant's impairment does not meet or equal a listed impairment, evaluation proceeds to the next step.
At step four, the ALJ evaluates the claimant's residual functional capacity (RFC) and determines whether he or she is able to perform past relevant work. 20 C.F.R. §§ 404.1520 and 416.920. If the claimant is able to perform past relevant work, then the claim is denied. Id. If the claimant cannot perform any past relevant work, then the ALJ must move to the fifth step, which requires consideration of the claimant's RFC to perform other substantial gainful work in the national economy in view of the claimant's age, education, and work experience. Id. “There are two ways for the [ALJ] to meet the burden of showing that there is other work in ‘significant numbers' in the national economy that claimant can do: (1) by the testimony of a vocational expert, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2, ” also known as the “Grids.” Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006).
Residual functional capacity is defined as that which an individual can still do despite his or her limitations. 20 C.F.R. §§ 404.1545 and 416.945.
The ALJ's Findings
At step one of the disability analysis, the ALJ found “[t]he claimant has not engaged in substantial gainful activity since September 15, 2016, the alleged onset date . . . .” (Doc. 21-3, p. 20)
At step two, the ALJ found “[t]he claimant does not have a severe impairment or combination of impairments . . . .” Id. Accordingly, the ALJ found Mulhieldin was not disabled. (Doc. 21-3, p. 25)
STANDARD OF REVIEW
To qualify for disability benefits, the claimant must demonstrate, through medically acceptable clinical or laboratory standards, an inability to engage in substantial gainful activity due to a physical or mental impairment that can be expected to last for a continuous period of at least twelve months. 42 U.S.C. §§ 423(d)(1) and 1382c(a)(3). “[A]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him or whether he would be hired if he applied for work.” 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B).
The findings of the ALJ are meant to be conclusive. The decision to deny benefits “should be upheld unless it contains legal error or is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. It is “more than a mere scintilla but less than a preponderance.” Id.
“Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld.” Orn, 495 F.3d at 630. “However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Id.
“An ALJ is not required to believe every allegation of disabling pain or other non-exertional impairment.” Orn, 495 F.3d at 635 (punctuation modified). “However, to discredit a claimant's testimony when a medical impairment has been established, the ALJ must provide specific, cogent reasons for the disbelief.” Id. “The ALJ must cite the reasons why the claimant's testimony is unpersuasive.” Id. If the ALJ does not find “affirmative evidence” of malingering, “those reasons for rejecting the claimant's testimony must be clear and convincing.” Id.
Discussion
Mulhieldin argues first that the ALJ erred when she found that he does not have a severe mental impairment. The court agrees. The court does not reach Mulhieldin's alternate allegations of error.
“At step two of the five-step sequential inquiry, the Commissioner determines whether the claimant has a medically severe impairment or combination of impairments.” Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir.1996). “[A]n impairment is not severe if it does not significantly limit the claimant's physical ability to do basic work activities.” Id. at 1290. “Basic work activities” are “the abilities and aptitudes necessary to do most jobs” such as “[understanding, carrying out, and remembering simple instructions, ” or “[r]esponding appropriately to supervision, co-workers and usual work situations, ” or “[d]ealing with changes in a routine work setting.” 20 C.F.R. §§ 404.1522 and 416.922. “[T]he ALJ must consider the combined effect of all of the claimant's impairments on [his] ability to function, without regard to whether each alone was sufficiently severe.” Smolen v. Chater, 80 F.3d 1273, 1290 (9thCir.1996).
“[T]he step-two inquiry is a de minimis screening device to dispose of groundless claims.” Id. “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 individuals ability to work.” Id. (punctuation modified). An ALJ must continue the sequential analysis beyond step two unless there is “substantial evidence to find that the medical evidence clearly established'that [the claimant] did not have a medically severe impairment or combination of impairments.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (emphasis added).
In this case, the ALJ applied those regulations specifically directed to the “[e]valuation of mental impairments.” 20 C.F.R. §§ 404.1520a and 416.920a. She first determined that Mulhieldin had medically determinable mental impairments - “mood disorder not otherwise specified, major depressive disorder, [] schizoaffective disorder, posttraumatic stress disorder (PTSD), and anxiety disorder not otherwise specified.” (Doc. 21-3, p. 20) She then considered “the intensity, persistence, and limiting effects of [Mulhieldin's] symptoms to determine the extent to which they limit [his] functional limitations.” (Doc. 21-3, p. 21) In accordance with the regulatory scheme, the ALJ rated Mulhieldin's limitations in four broad functional areas: “understand, remember or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself.” 20 C.F.R. § 404.1520a(c)(3) and 416.920a(c)(3). She determined that Mulhieldin had mild limitation in each of the four areas. (Doc. 21-3, pp. 23-25) She then concluded that “[b]ecause the claimant's medically determinable mental impairments cause no more than ‘mild' limitations in any of the four functional areas, they are non-severe (20 C.F.R. § 404.1520a(d)(1) and 416.920a(d)(1)).” (Doc. 21-3, p. 25) The ALJ's application of the regulations was not entirely correct.
On the “severity” issue, the regulations state as follows:
If we rate the degrees of your limitation as “none” or “mild, ” we will generally conclude that your impairment(s) is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in your ability to do basic work activities.20 C.F.R. §§ 404.1520a(d)(1) and 416.920a(d)(1) (emphasis added). Assuming that the ALJ was correct when she determined that Mulhieldin has only mild limitations in these four areas, at least during those periods when his symptoms are relatively quiescent, the court nevertheless concludes that this is a case where “evidence otherwise indicates that there is more than a minimal limitation in [the claimant's] ability to do basic work activites.” Id
The medical record contains evidence of three episodes of decompensation since the alleged onset date of September 15, 2016. Specifically, Mulhieldin received inpatient treatment for his mental impairments on September 28, 2016; April 4, 2017; and April 23, 2018. (See above) The court concludes that episodes of decomposition are not consistent with a finding that the claimant's mental impairments constitute only “a slight abnormality that has no more than a minimal effect on an individuals ability to work.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996).
“‘[Decompensation refers to a state of extreme deterioration, often leading to hospitalization.'” See Revised Medical Criteria for Evaluating Mental Disorders, 81 FR 66147; 2016 WL 5341732.
The ALJ did not explicitly discuss these episodes of decompensation. It is unclear whether she overlooked them or considered them less important than other evidence in the record. Either way, the ALJ erred when she concluded that Mulhieldin's mental impairments were not severe.
The decision of the ALJ does not contain “substantial evidence to find that the medical evidence clearly established'that [the claimant] did not have a medically severe impairment or combination of impairments.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (emphasis added). Accordingly, this court finds that the decision of the ALJ should be reversed and this action should be remanded for further proceedings. See, e.g., Brackett v. Astrue, 2010 WL 5467254, at *6 (D. Me. 2010) (The existence of episodes of decompensation should ordinarily result in a default finding of severity.), report and recommendation adopted, 2011 WL 177134 (D. Me. 2011); Dewald v. Astrue, 590 F.Supp.2d 1184, 1206 (D.S.D. 2008) (“The regulations . . . clearly indicate that a non-severe finding is not proper . . . when episodes of decomposition [sic] are indicated in the fourth area.”).
“Effective January 17, 2017, the Social Security Administration changed the language of § 404.1520a [and §416.920a] from ‘activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation' to ‘understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself'” Pardini v. Berryhill, 2020 WL 1245342, at *12, n. 13 (N.D. Cal. 2020) (emphasis added). Nevertheless, this court concludes that the change does not affect the need for the ALJ to consider episodes of decompensation either because those episodes are evidence of the claimant's ability to “adapt or manage onself” or because those episodes are “evidence [that] otherwise indicates that there is more than a minimal limitation in [the claimant's] ability to do basic work activities.” 20 C.F.R §§ 404.1520a(d)(1) and 416.920a(d)(1); see also Revised Medical Criteria for Evaluating Mental Disorders, 81 FR 6613 8-01; 2016 WL 5341732 (“We do not agree that eliminating ‘episodes of decompensation' from the paragraph B criteria will reduce our ability to measure the chronic nature and impact of a mental illness.”). If this court had concluded that the new regulations did change the duty of the ALJ to consider episodes of decompensation and the claimant's ability to prove disability was adversely affected, then this court would have had to consider whether applying this change in the regulations to this case was a disfavored “retroactive application.” See Portlock v. Barnhart, 208 F.Supp.2d 451, 461 (D. Del. 2002). One could interpret the Commissioner's decision to apply the new regulations to this case as a tacit acknowledgment that the new regulations do not substantively change the disability analysis.
RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Court, after its independent review, reverse the final decision of the Commissioner and remand for further proceedings.
Pursuant to 28 U.S.C. § 636(b), any party may file and serve written objections within 14 days after being served with a copy of this Report and Recommendation. If objections are not timely filed, the party's right to de novo review may be waived. The Local Rules permit the filing of a response to an objection. They do not permit the filing of a reply to a response without leave of the District Court.