Opinion
CV-00-6267-ST
June 25, 2001
OPINION AND ORDER
INTRODUCTION
Claimant, Joanna Sanders ("Sanders"), brings this action pursuant to the Social Security Act ("Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her request for disability insurance benefits under Title II of the Social Security Act. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 U.S.C. § 636(c). For the reasons set forth below, this court finds that the Commissioner's decision is not supported by substantial evidence and, therefore, reverses and remands for an award of benefits.
Larry G. Massanari became the Acting Commissioner of Social Security on March 29, 2001. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, Larry G. Massanari is therefore substituted for Acting Commissioner William A. Halter as the defendant in this case.
PROCEDURAL BACKGROUND
Sanders filed her application for benefits on March 24, 1994. She alleged disability due to seizures beginning in 1993. Her application was denied initially and she did not seek reconsideration. Sanders then filed the present application for benefits on January 12, 1996, alleging disability due to seizures and memory and concentration problems beginning in 1993. This application was denied initially and on reconsideration. Sanders then requested a hearing before an administrative law judge ("ALJ"). The hearing was held on July 30, 1997, in Eugene, Oregon.
Her insured status terminated on March 31, 1997.
Sanders, represented by an attorney, appeared and testified, as did Lou Myers, M.D., a medical expert, Sanders' husband, and a vocational expert ("VE"). The ALJ then considered the testimony and the evidence in the record and issued his decision on September 25, 1997. He found Sanders not disabled because she could perform work existing in significant numbers in the national economy. On February 26, 1998, the Appeals Council declined to review the ALJ's findings. Sanders' attorney then requested the Appeals Council to reopen and reconsider its decision in light of additional evidence submitted after the hearing. The Appeals Council, however, declined to change its decision. Thus, the ALJ's decision is the final agency decision, subject to review by this court. 20 C.F.R. § 404.981.
STANDARDS
The initial burden of proof rests upon the claimant to establish disability. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir 1995), cert denied, 517 U.S. 1122 (1996). 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 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. § 404.1520. First the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(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; 20 C.F.R. § 404.1520(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 [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Id; 20 C.F.R. § 404.1520(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). If so, the claimant is not disabled. If the claimant cannot perform past relevant work, then 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; 20 C.F.R. § 404.1520(f). If the Commissioner meets this burden and proves that the claimant is able to perform other work which exists in the national economy, then the claimant is not disabled. Id.
The Commissioner's decision denying benefits will be disturbed only if it is based on legal error or it is not supported by substantial evidence in the record. Flaten v. Secretary of Health Human Serv's., 44 F.3d 1453, 1457 (9th Cir 1995). Substantial evidence is "more than a scintilla but less than a preponderance." Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir 1997). "Substantial evidence is relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion." Flaten, 44 F.3d at 1457. 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).
STATEMENT OF THE FACTS
I. Witness Testimony
A. Sanders
Sanders was 46 years old at the time of the hearing and has a GED. She has a seizure disorder which, prior to her move to Oregon in 1993, was successfully controlled with medication. Since 1993, however, she has experienced a greater frequency of uncontrolled seizures despite a varying combination of medications and has not had a month free of seizures.
Sanders could not readily describe her seizures. However, she stated that they last from 15 to 30 minutes at a time and strike without warning at any time of the day or night. After they are over, she is tired, "like I've worked I guess all day out in the field or something but my mind is real tired, too." Tr. 74.
Citations are to the page(s) indicated in the official transcript of record filed with the Commissioner's Answer on March 7, 2001 (docket # 10).
The medicines at times make her feel lightheaded and sleepy and affect her concentration and energy level. She does not wake up feeling refreshed. During an average day, Sanders visits relatives in the morning with her husband and, in the afternoons, reads, watches television, or crochets. Sometimes she has migraine headaches, but these appear to be controlled through medication and sleep.
B. Mr. Sanders
Mr. Sanders recalled that his wife had one violent seizure one or two years before the hearing, but he described her typical seizure as a catatonic-like state (a "zombie"). Tr. 96. During the seizure, Sanders cannot talk or respond appropriately and her eyes remain open, but "she's not here to me." Tr. 97. When she comes out of the seizure, "that's it for the day for her actually. That wears her out." Id.
In terms of frequency, Mr. Sanders stated: "I've seen them more times than she's got written down or some reason. I don't know why. Like we came down to Eugene a couple of times. On the way home she had a seizure and I don't know if them ain't [sic] down in the books." Id. Apparently, Sanders keeps her own diary of seizures, but her husband commented that "sometimes she'll forget and I don't keep close tabs on it." Id. Mr. Sanders also surmises that his wife has seizures in her sleep as she bites herself inside her mouth and does not wake up. According to Mr. Sanders, Dr. Fitzgerald told him and his wife to record such instances as seizures in the seizure diary.
He also testified that his wife cannot go anywhere by herself because of the seizures.
C. Medical Expert
Dr. Myers testified as a medical expert on the subject of seizures in general and Sanders' illness and treatment in particular. He explained that the right combination of medications can generally prevent seizures, but that in some cases no combination will completely control them. Doctors may use any of 12 anti-convulsive agents and finding the right dosage and combination is a matter of trial and error over time. In his opinion, Sanders' situation is not being closely monitored and that, in terms of finding the right combination and dosage of medications, she is at the first of ten levels.
He stated that with one exception, Sanders' seizures are not major, and therefore Listing 11.03, rather than Listing 11.02, is applicable. However, Dr. Myers opined that Sanders did not meet Listing 11.03 because her minor seizures were less frequent than once weekly in spite of at least three months of prescribed treatment. 20 C.F.R. Pt 404, Subpt. P, App. 1, § 11.03 (1996). Nevertheless, Dr. Myers stated that Sanders would be limited by her lethargy and her difficulty in concentration caused by her seizure medications and he opined that she should not be around open pools of water and "should not be operating motor vehicles or around machinery." Tr. 101.
II. Medical Evidence
A. Evidence Before the ALJ
In December 1993, Sanders was seen in the emergency room after a possible grand mal seizure. Philip Dean, M.D. remarked that Sanders' last prior "full-blown seizure" was in 1986. Tr. 244. He noted that Sanders was currently taking 300 mg. of Dilantin daily and had been for the last six years, but her Dilantin level was "7," lower than the commonly accepted therapeutic level of 10-20. Therefore, Dr. Dean gave Sanders a dosage of Dilantin and increased her daily dosage to 500 mg.
Kathleen M. Fitzgerald, M.D., began treating Sanders for her seizures soon after. She reported on February 1, 1994, that in response to an upsurge in episodes, she would increase the number and strength of Sanders' medications, and she ordered Sanders not to drive. Three weeks later Dr. Fitzgerald noted that "[n]o clear seizures or staring spells have been noted" and she would continue seeking an effective combination of medications. Tr. 260. On March 11, 1994, Dr. Fitzgerald noted that Mr. Sanders called to report a seizure or seizures. As a result, Dr. Fitzgerald increased one of Sanders' medications. On March 28, 1994, Dr. Fitzgerald noted that Sanders had suffered no seizures since the change in medication and recommended a follow-up appointment in two to three months. She instructed the Sanders' to "call if there are increased episodes." Tr. 259.
Almost five months later, in August 1994, Dr. Fitzgerald noted that Sanders reported "no further staring spells." Tr. 258. She recommended another follow-up appointment in four months and noted that Sanders was to call her "if there are any problems." Id. In January 1995, Dr. Fitzgerald wrote that Mr. Sanders had reported the first seizure in more than four months. Dr. Fitzgerald noted some family stress and increased the dosage of one of Sanders' medications. She stated that Sanders was to call "if she has further events and consideration may be given to changing the medications further." Tr. 257.
Dr. Fitzgerald's next record is dated almost one year later. Sanders reported a seizure on December 8, 1995, and possibly one subsequent to that. Dr. Fitzgerald noted that "[a]lthough they have not kept an exact record over the past year there may have been half a dozen events." Tr. 256. Again, Dr. Fitzgerald modified Sanders' medications and recommended a follow-up appointment. On February 21, 1996, Dr. Fitzgerald noted that Sanders reported four seizures since her last appointment on January 3, 1996. In response, Dr. Fitzgerald once more modified Sanders' medications.
On March 26, 1997, Mitch Boriskin, FNP, of the Five Rivers Family Practice Clinic, answered a letter from Sanders' attorney, indicating that Sanders was experiencing three seizures per month. One day later, on March 27, 1997, Sanders visited the Five Rivers Family Practice Clinic "because she's having increasing numbers of seizures, she's starting to have 2 to 4 seizures a month." Tr. 316. The physician's assistant at that time thought that dental problems and possible early menopause were lowering Sanders' seizure threshold.
On April 15, 1997, Dr. Fitzgerald noted that she was seeing Sanders for an extended follow-up for her seizure disorder and that she was last seen over a year earlier in May 1996. She stated that "[i]nterval history is remarkable for at least two to four episodes of seizures per month that she is aware of and possibly more that she is unaware of." Tr. 320. Again, Dr. Fitzgerald recommended another follow-up appointment, a change in medications, and she instructed Sanders to "call to report problems." Id.
B. Evidence Post-Dating the ALJ's Decision
After the ALJ's September 25, 1997 decision, Sanders submitted additional medical evidence from Dr. Fitzgerald to the Appeals Council. Dr. Fitzgerald noted on November 6, 1997, that Sanders had seizures on October 3, 5, and 18, and on November 8. Dr. Fitzgerald also stated that "patient herself will miss seizures and unless others are present additional events will not be recorded." Tr. 325. She modified Sanders' medications and offered some opinions:
November 8 likely is a typographical error since the medical record is dated November 6, 1997.
At the present time Joanne Sanders is not able to return to any of her prior employments because of her seizure disorder. She is precluded from driving, working around heights, dangerous machines or open water. Her seizures result in gaps in consciousness which may significantly impact her work performance. I presume that the seizure frequency is higher than that which is actually recorded. This is because the patient herself will not recognize seizures and frequently an interaction with a witness is required for the witness to recognize seizures.
Id.
On January 5, 1998, Dr. Fitzgerald saw Sanders for a follow-up appointment and noted that Sanders had four seizures in December, but "she probably had other undocumented seizures as it is usually necessary for a witness to be involved with her to notice the spells." Tr. 324. Dr. Fitzgerald also noted that "[s]everal events continue to occur every month and at least five are noted this month with two being on one day." Id. She concluded that "I do believe that she is unemployable at this time." Id.
Lastly, in July 1998, one year after the administrative hearing, Dr. Fitzgerald submitted a hand-written note that Sanders "has multiple documented events per month and probably more that are not noted." Tr. 323. Dr. Fitzgerald concluded that Sanders "is not able to sustain employment at this time." Id.
III. VE Testimony
The VE determined that a hypothetical claimant with seizures two or three times per month who cannot work around dangerous machinery, open pools of water or heights, who is not able to work at jobs that require a continuous high level of concentration, but who can do simple tasks throughout the day, could not do any of Sanders' past work. However, the same hypothetical claimant could work as an assembler, jewel stringer, or addresser. The VE then considered the same hypothetical claimant but with seizures two or three times per month, lasting between 15 and 30 minutes, followed by periods of lethargy and fatigue, with difficulties of concentration and an inability to maintain attention for two hours. The VE stated that such a person would not be able to maintain employment.
ALJ'S DECISION
The ALJ determined that Sanders has not engaged in any substantial gainful work activity since her alleged onset date in 1993. Pursuant to the second step of the sequential evaluation process, the ALJ then determined that Sanders suffers from a "severe" neurological impairment. At the third step in the evaluation process, the ALJ determined that Sanders' severe impairment does not meet or equal the requirements set forth in the Listing of Impairments at 20 C.F.R. Part 404, Subpart P, Appendix 1 ("Listings"). Specifically, the ALJ determined that Sanders did not meet or equal Listings 11.02 or 11.03. The ALJ then proceeded to the fourth step in the evaluation process and discussed Sanders' residual functional capacity ("RFC"), which describes the range of work activities that a claimant can perform despite her impairments. The ALJ determined that Sanders retains the RFC to do simple one-to-three step tasks, in situations not precluded by two to three seizures a month, but cannot maintain a high level of mental concentration.
Based on this RFC, the ALJ proceeded to step five of the evaluation process and determined with the assistance of the VE that Sanders could not return to any of her past relevant work but is capable of making a vocational adjustment to work at other jobs which exist in substantial numbers in the economy. Thus, the ALJ found Sanders not disabled.
DISCUSSION
Sanders argues that the ALJ erred by: (1) failing to properly assess Mr. Sanders' testimony; (2) improperly discrediting Sanders' testimony; (3) not fully crediting Dr. Fitzgerald's opinion; and (4) providing the VE with a flawed hypothetical. Sanders also argues that the Appeals Council erred by not considering the new evidence submitted after the hearing.
I. Mr. Sanders' Testimony
Sanders argues that the ALJ should have addressed Mr. Sanders' testimony. Because he did not, Sanders contends that his testimony must be credited and, as a result, Sanders meets Listing 11.03 by virtue of having minor seizures occuring more frequently than once weekly.
A. Legal Standard
The Ninth Circuit has clarified that "lay testimony as to a claimant's symptoms or how an impairment affects his ability to work is competent evidence and therefore cannot be disregarded without comment." Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir 1996), citing Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir 1987) and Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir 1993). If the ALJ wishes to discount lay witness testimony, he must give reasons that are germane to the witness. Regennitter v. Commissioner of Social Sec. Admin., 166 F.3d 1294, 1298 (9th Cir 1999); Dodrill, 12 F.3d at 918-19.
B. Analysis
Although she satisfied all the other requirements, the ALJ found that Sanders did not meet Listing 11.03 because she did not have the requisite frequency of seizures. He stated that "[t]he preponderance of the evidence indicates that the claimant's seizures occur, at most, two to three times per month, rather than `occurring more frequently than once weekly,' as required by the Listing." Tr. 24.
To be considered presumptively disabled under Listing 11.03, a claimant must have seizures that are documented by an EEG and by detailed description of a typical seizure pattern with all associated phenomena. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.03 (1996). These minor seizures must occur more frequently than once a week in spite of at least three months of prescribed treatment and must must be accompanied by an alteration of awareness or loss of consciousness and manifestations of unconventional behavior or significant interference with activity during the day. Id.
In reaching his conclusion concerning the number of Sanders' seizures, the ALJ fails to address Mr. Sanders' testimony to the contrary. Mr. Sanders explained at the hearing that he had seen Sanders experience seizures more often than she had recorded them in her seizure diary, that she forgets to write them down and that he does not keep close tabs on her seizure diary. The ALJ expressed disinterest in this testimony by interjecting, "Well, I'm only going to look at the ones in the book because that's what you're supposed to be doing." Tr. 97-98. Sanders' seizure diary indicates that from January 1996 to July 1997, she experienced an average of slightly more than two seizures per month. Mr. Sanders also described instances of night-time incidents of bite marks in Sanders' mouth. Even though Dr. Fitzgerald instructed the Sanders to consider such occurrences as seizures, Mr. Sanders stated "she don't [sic] write that down. . . . We don't put down she woke up the next morning and had bite marks or stuff like that in her mouth. We don't put that down on that." Tr. 98.
Sanders' seizure diary indicates two seizures in January 1996, one in February 1996, one in March 1996, one in April 1996, three in May 1996, one in June 1996, two in July 1996, four in August 1996, three in September 1996, three in October 1996, one in November 1996, one in December 1996, four in January 1997, three in February 1997, one in March 1997, three in April 1997, two in May 1997, two in June 1997, and three in July 1997. Tr. 283-99, 239-42.
It is apparent that the ALJ relied entirely on Sanders' seizure diary regarding the number of seizures and implicitly rejected Mr. Sanders' testimony or, at any rate, disregarded it. By doing so without giving any reason, the ALJ erred. See Nguyen, 100 F.3d at 1462; Regennitter, 166 F.3d at 1298.
Accordingly, this court must decide whether to reverse the ALJ's decision and remand for further administrative proceedings or reverse and remand for an award of benefits. Such a decision is within the discretion of the court. Reddick v. Chater, 157 F.3d 715, 728 (9th Cir 1998). Crediting evidence and remanding for an award of benefits is appropriate where:
(1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.
Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir 2000), quoting Smolen, 80 F.3d at 1292.
Here, the ALJ erred in failing to address Mr. Sanders' testimony. That testimony, if credited, together with other evidence in the record, indicates that at least by March 1997 before her insured status terminated, if not by February 1996, Sanders suffered from a greater frequency of seizures than found by the ALJ.
As outlined above, Mr. Sanders attested to the unreliability of the seizure diary and stated that Sanders would not know that she had experienced a seizure unless someone witnessed it or she found bite marks in her mouth. His testimony is supported by the medical records.
Dr. Fitzgerald's records do indicate extended periods of time with no seizure activity at all. For example, in January 1995, she remarked on the first seizure in more than four months and on January 3, 1996, states that "[a]lthough they have not kept an exact record over the past year there may have been half a dozen events." Tr. 256. However, by February 21, 1996, a month after she started keeping her seizure diary, Sanders reported four seizures since January 3, 1996. By March 26, 1997, she reported to the physician's assistant an increasing number of two to four seizures a month. Dr. Fitzgerald's April 1997 entry states that in the previous 11 months, Sanders experienced "at least two to four episodes of seizures per month that she is aware of and possibly more that she is unaware of." Tr. 320.
Dr. Fitzgerald's later notes confirm Sanders' failure to record all of her seizures. On November 6, 1997, she notes that "patient herself will miss seizures and unless others are present additional events will not be recorded. . . . I presume that the seizure frequency is higher than that which is actually recorded." On January 5, 1998, Dr. Fitzgerald recorded that Sanders had four seizures in December, but "she probably had other undocumented seizures as it is usually necessary for a witness to be involved with her to notice the spells." Tr. 324. And in July 1998, Dr. Fitzgerald opined that Sanders "has multiple documented events per month and probably more that are not noted." Tr. 323. Although these entries post-date the hearing, additional evidence presented to the Appeals Council may be considered "in determining whether the Commissioner's denial of benefits is supported by substantial evidence." Harman v. Apfel, 203 F.3d 1151, 1160 (9th Cir 2000).
The evidence clearly indicates that Sanders suffered more seizures than she recorded in her seizure diary. Mr. Sanders testified to poor record-keeping, particularly with regard to night-time seizures. Also, Dr. Fitzgerald remarked on numerous occasions that Sanders could not be expected to record, or even notice, seizures unless someone were to witness the event. In sum, rather than the two to three seizures per month the ALJ arrived at, the record shows that at a bare minimum, Sanders suffered from two to four seizures per month.
Technically, this is not enough to qualify under Listing 11.03. However, in a similar case, the Eighth Circuit noted that the plaintiff, who suffered from an average of one seizure a week, satisfied Listing 11.03. Braswell v. Heckler, 733 F.2d 531, 533 (8th Cir 1984). The court explained that:
It would be stretching the requirements of 11.03 to an unreasonable degree to deny [the plaintiff's] disability claim simply because he does not have a blackout regularly once a week. Given that the blackouts average once a week, and the fact that he loses consciousness and consequently cannot recall all of his seizures, [the plaintiff's] condition meets or equals the requirements of 11.03
Id.
Here, as in Braswell, Sanders cannot recall when or if she has seizures. Her record-keeping is apparently poor and fails to include any night-time seizures despite her doctor's orders. Her seizures, as the seizures in Braswell, are very disruptive and last from 15 to 30 minutes. She emerges from a seizure disoriented and exhausted. She is not allowed to drive or go anywhere by herself, and even the medical expert testified that she should not be around machinery or bodies of water unattended. The ALJ readily surmised after a review of the evidence that Sanders takes her medications, and the medical expert agreed.
Thus, the evidence demonstrates that Sanders suffers significant seizures, certainly occurring more than three or four times per month, which she is not able to control with medication. Given such evidence, no outstanding issues must be resolved. The only reason that the ALJ denied benefits under Listing 11.03 was due to his conclusion that she did not suffer seizures often enough. That conclusion was in error. There is no need to remand for further proceedings. Instead, the Commissioner must award benefits.
II. Remaining issues
Because this court is ordering an award of benefits based on the ALJ's failure to address Mr. Sander's testimony, which is fully supported by the medical records, this court need not address the remaining errors raised by Sanders.
ORDER
For the reasons set forth above, the Commissioner's decision is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for an award of benefits.