Opinion
Case No. 04-4010-RDR.
October 25, 2004
MEMORANDUM AND ORDER
This is an action to review the defendant's decision to deny plaintiff's application for disability benefits. Plaintiff filed her application on March 16, 2001 alleging a disability onset date of June 12, 2000. On August 29, 2003, an Administrative Law Judge (ALJ) issued an opinion denying plaintiff's application for benefits. This decision was affirmed by the Appeals Council and adopted by defendant.
Legal Standards
We review defendant's decision "to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied." Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."Id. (quotations and citation omitted). However, "[a] decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it."Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988). A failure to apply the correct legal standards or demonstrate it was done is also grounds for reversal. Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996).
The ALJ's decision
The ALJ made the following findings as part of his decision to deny plaintiff's application for disability benefits. Plaintiff has a high school education plus one year of college. When she was 42, plaintiff suffered a fall at work which injured her left elbow. Since her injury, plaintiff has developed the following "severe" impairments which have disabled her from her previous employment: lateral epicondylitis of the left elbow, status post ostectomy and stripping, pain disorder associated with psychological factors and a general medical condition, depression, and fybromyalgia. Tr. 28-29. The ALJ determined that plaintiff:
could not lift or carry more than 2 pounds with her left upper extremity and cannot lift or carry more than 10 pounds with both upper extremities. She cannot engage in prolonged walking or engage in work activity without having the opportunity to alternate sitting and standing at 15 minute intervals. She can only occasionally bend, stoop, squat, crouch, crawl, kneel or climb. [Plaintiff] can only occasionally reach out and cannot reach overhead or push or pull with her dominant left upper extremity. She can only occasionally perform work activities requiring handgrip strength, fine hand manipulation or dexterity, repetitive movement and operation of hand controls with her dominant left hand. Due to her mental impairments, [plaintiff] has mild restriction of activities of daily living, not preventing her from completing activities of daily living, such as bathing, grooming, dressing, cooking, house cleaning, using public transportation or handling financial matters; moderate difficulties in maintaining social functioning, occasionally preventing her from interacting with co-workers, supervisors or the public during the workday without interruption from psychologically based symptoms; mild difficulties in maintaining concentration, persistence or pace, not precluding her from completing simple work-related tasks in a timely manner, or understanding, remembering and carrying out simple instructions in a timely manner; and she has had no repeated episodes of decompensation, each of extended duration.
Tr. 29. Based in part upon the testimony of a vocational expert, the ALJ determined that plaintiff could perform the work of a security monitor and that this work exists in the national and regional economy in significant numbers. (Tr. 28-29).
Plaintiff's arguments
Plaintiff makes three arguments to reverse or remand the decision to deny benefits: 1) that plaintiff is unable to perform the job of security monitor because of side effects from her medication; 2) that plaintiff is unable to perform the job of security monitor because of psychological impairments which limit her ability to interact with others; and 3) defendant has not proven that the job of security monitor exists in significant numbers in the local economy.
Side effects
Plaintiff takes Oxycontin daily for pain, Lortab daily for pain, Effexor daily for depression, Temazpam or Restoril for sleeping, and Seroquel daily for anxiety and depression. (Tr. 48-49). Plaintiff testified before the ALJ that these prescriptions make her very sleepy so that she takes frequent naps and also give her a "druggy" feeling that makes it difficult to drive or operate equipment. (Tr. 49-50). She also testified that she averages three naps a day and that the naps vary from a half hour to a couple of hours. (Tr. 50).
The ALJ found generally that "allegations and testimony by [plaintiff] regarding symptoms and limitations are not credible, because they are not supported by the objective medical, clinical, laboratory, radiological, psychiatric mental status evaluation and psychological evaluation or testing findings of record . . ." (Tr. 27). More specifically to the topic of side effects from medication, the ALJ stated:
"While [plaintiff] reported that she has side effects of upset stomach and drowsiness, [plaintiff's] continued use of her medications suggests that the benefits of the medications outweigh the side effects. Moreover, [plaintiff] testified that these medications were helpful in alleviating her symptoms."
(Tr. 26). In defendant's response to plaintiff's initial brief, defendant also states that plaintiff has pointed to no entries in her medical records where she complained of fatigue, sleepiness or the need to nap and that no such entry exists.
In reply, plaintiff asserts that the ALJ did not summarize the factors or findings that he considered in evaluating plaintiff's credibility and that the findings that were cited do not logically support his doubts regarding plaintiff's testimony about the side effects of her medication.
Upon our review of the record, we find that plaintiff has complained of fatigue, sleepiness or the need to nap prior to her testimony before the ALJ. In the form detailing plaintiff's "Activities of Daily Living", plaintiff stated that she takes naps during the day and that they vary depending on her insomnia. (Tr. 199). In the same form, plaintiff complains of "extreme fatigue." (Tr. 200). A report of a "mental status examination" by Dr. Kovach on July 10, 2001 indicates that plaintiff told Dr. Kovach that "she often took a nap `for a few hours.'" (Tr. 275). Dr. Bickelhaupt wrote on May 22, 2002 that "objective findings" regarding plaintiff included "low energy" and "poor sleep pattern". (Tr. 341). Plaintiff reported fatigue and insomnia to Dr. Warren on October 29, 2002. (Tr. 394). Similar reports are reflected in the "medication management" forms of Dr. Bickelhaupt on November 25, 2002 ("only gets 3 good hours of sleep") and January 27, 2003 ("gets worn out"). (Tr. 397, 398).
While the ALJ indicated that the benefits of plaintiff's medications (e.g., pain control and relief from depression) seem to outweigh the side effects, this does not deny either the presence or the significance of the side effects. Obviously, a reasonable person could find that drowsiness was an acceptable side effect for the relief of pain or the control of depression. Defendant's assertion that the side effects must not be disabling because steps have not been taken to change plaintiff's medication is also unpersuasive. The record indicates that there have been changes in medication. Moreover, there is no evidence that changes can be made which would restore plaintiff's energy level, eliminate the "druggy" feeling, or prevent drowsiness and the need to nap. Nor is there evidence that plaintiff has refused such changes, if they are possible. There is also no evidence that the changes in medication are possible without leading to other problems, such as increased pain or increased depression.
Finally, the ALJ's general statement at page 27 of the record that plaintiff's allegations and testimony are not credible, is itself not credible because the ALJ obviously agrees that plaintiff has numerous limitations as detailed in his other findings. The ALJ's finding at page 29 of the record that plaintiff's allegations and testimony are not credible "to the extent that they are inconsistent with the medical evidence and the findings regarding functional limitations, and for the other reasons stated in the body of this decision" is not convincing regarding the impact of side effects because the medical evidence and the reasoning in the body of the decision do not contradict or rebut plaintiff's testimony regarding drowsiness and the need to take naps.
In sum, the court agrees with plaintiff's first argument that the ALJ did not properly assess the credibility of her testimony regarding the side effects from her medication. The side effects of medication can significantly affect someone's ability to work and, therefore, should figure in the disability determination process. See, e.g., Porch v. Chater, 115 F.3d 567, 572 (8th Cir. 1997). The ALJ's failure to adequately assess the evidence and develop the record relating to plaintiff's medications' side effects requires that the case be remanded for further findings. Brown v. Barnhart, 285 F.Supp.2d 919, 935 (S.D.Tex. 2003); Munson v. Barnhart, 217 F.Supp.2d 162, 165-66 (D.Me. 2002); Mangold v. Chater, 1995 WL 580099 (D.Kan. 1995).
Conclusion
In light of this finding, the court shall not address plaintiff's other two arguments for reversing the decision to deny benefits. However, on remand, both sides may wish to better develop the record regarding limitations caused by plaintiff's psychological problems with interacting with others and whether a significant number of jobs exist in the economy for persons in plaintiff's condition.
We therefore reverse the decision to deny benefits in this case and remand with instructions to reevaluate the question of whether plaintiff's claimed side effects of medication prevent plaintiff from substantial gainful employment and to afford both sides the opportunity to develop the record regarding the functional impact of plaintiff's psychological limitations and the number of jobs available in the economy for persons with plaintiff's functional capacity.
IT IS SO ORDERED.