Opinion
Civil Action No. 04-30122-KPN.
March 4, 2005
This matter is before the court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) which provide for judicial review of a final decision by the defendant, the Commissioner of the Social Security Administration (the "Commissioner"), regarding an individual's entitlement to Supplemental Security Income ("SSI") disability benefits. Nancy Smith ("Plaintiff") claims that the Commissioner's decision denying her benefits — memorialized in a March 25, 2004 decision by an administrative law judge — is not supported by substantial evidence and is predicated on errors of law. Plaintiff, via a motion for judgment on the pleadings, has moved to reverse the decision and the Commissioner has moved to affirm.
With the parties' consent, this matter has been assigned to the undersigned pursuant to 28 U.S.C. § 636(c) for all purposes, including entry of judgment. For the reasons set forth below, Plaintiff's motion will be granted, but only insofar as a remand is appropriate. The Commissioner's motion to affirm will be denied.
I. STANDARD OF REVIEW
A court may not disturb the Commissioner's decision if it is grounded in substantial evidence. See 42 U.S.C. §§ 405(g) and 1383(c)(3). Substantial evidence is such relevant evidence as a reasonable mind accepts as adequate to support a conclusion. Rodriguez v. Sec'y of Health Human Servs., 647 F.2d 218, 222 (1st Cir. 1981). The Supreme Court has defined substantial evidence as "more than a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971). Thus, even if the administrative record could support multiple conclusions, a court must uphold the Commissioner's findings "if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [her] conclusion." Ortiz v. Sec'y of Health Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (citation and internal quotation marks omitted).
The resolution of conflicts in evidence and the determination of credibility are for the Commissioner, not for doctors or the courts. Rodriguez, 647 F.2d at 222; Evangelista v. Sec'y of Health Human Servs., 826 F.2d 136, 141 (1st Cir. 1987). A denial of benefits, however, will not be upheld if there has been an error of law in the evaluation of a particular claim. See Manso-Pizzaro v. Sec'y of Health Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In the end, the court maintains the power, in appropriate circumstances, "to enter . . . a judgment affirming, modifying, or reversing the [Commissioner's] decision" or to "remand the cause for a rehearing." 42 U.S.C. § 405(g).
II. BACKGROUND
Plaintiff, born on January 14, 1955, in Westfield, Massachusetts, has a tenth-grade education and little work history. (Administrative Record ("A.R.") at 29-32.) She presently resides in West Springfield, Massachusetts. (A.R. at 36, 125.)
A. MEDICAL HISTORY
Plaintiff claims to be suffering from multiple physical and mental impairments. (A.R. 243-69.) Testifying at the administrative hearing, Plaintiff reported that her impairments, including depression and flashbacks, leg pain and breathing difficulties, significantly limit her ability to work. (A.R. at 33, 41, 44-46.)
1. Physical Conditions
Plaintiff's main physical ailments are shoulder and neck problems, along with chronic obstructive pulmonary disease. The administrative law judge determined that these conditions, while severe, do not preclude Plaintiff from engaging in light work. (A.R. at 20.) Plaintiff does not dispute this determination.
2. Mental Conditions
Aside from longstanding substance abuse, since diagnosed as being in substantial remission, Plaintiff suffers from a number of mental conditions. In particular, Plaintiff has been diagnosed with post-traumatic stress disorder, major depression, panic disorder, anxiety, and borderline personality disorder. Plaintiff has been treated by a number of psychiatrists over the years and has been prescribed a variety of medications. Because Plaintiff's mental conditions are at the center of this appeal, the court will discuss them in some detail.
Plaintiff's history of substance abuse is mentioned sporadically in the administrative law judge's decision. As Plaintiff is no doubt aware, "an individual shall not be considered to be disabled for purposes of this subchapter if alcoholism or drug addition would (but for this subparagraph) be a contributing factor material to the Commissioner's determination that the individual is disabled." 42 U.S.C. § 1382c(1)(3)(J). See also Brown v. Apfel, 71 F. Supp. 2d 28, 35 (D.R.I. 1999), aff'd, 230 F.3d 1347 (1st Cir. 2000). Accordingly, the court has approached this case, as have the parties, without relying on Plaintiff's history of addiction.
On June 25, 1995, two days after Plaintiff was admitted to the Hillcrest Hospital for detoxification, Dr. Sara Stalman, a psychiatrist, performed an extensive psychiatric evaluation. She diagnosed a panic disorder and scored Plaintiff at "GAF 50" on the Global Assessment of Functioning scale. (A.R. at 249-50.) Over one year later, on November 11, 1996, Plaintiff was seen at the Center for Adults and Families. (A.R. at 326-29.) Plaintiff reported suffering from insomnia, low appetite, low energy, problems with concentration, suicidal ideation, and problems with anger management. ( Id.) She also reported six physical altercations in the prior two years, approximately three panic attacks per week, difficulty leaving her home, and nightmares of death and past trauma. ( Id.) Plaintiff was again scored at GAF 50 and diagnosed with post-traumatic stress disorder and panic disorder without agoraphobia. ( Id.)
"A GAF score represents `the clinician's judgment of the individual's overall level of functioning.' The GAF score is taken from the GAF scale which `is to be rated with respect only to psychological, social, and occupational functioning.' The GAF scale ranges from 100 (superior functioning) to 1 (persistent danger of severely hurting self or others, persistent inability to maintain minimal hygiene, or serious suicidal acts with clear expectation of death)." Munson v. Barnhart, 217 F. Supp. 2d 162, 164 n. 2 (D. Me. 2002) (quoting American Psychiatrics Ass'n Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed., text rev. 2000)).
In February of 1997, Dr. Paul Noroian, another psychiatrist, prescribed Paxil and Trazadone for Plaintiff. (A.R. at 325.) He diagnosed Plaintiff with probable recurrent major depression and post-traumatic stress disorder. (A.R. at 324.) Dr. Noroian scored Plaintiff at GAF 45 and noted that she was able to concentrate without difficulty. (A.R. at 323-24.) Several months later, Dr. Noroian prescribed Zoloft for Plaintiff, increasing the dosage in July and December. (A.R. at 315, 325.) Yet another psychiatrist, Dr. Luz Martin, saw Plaintiff at Noble Hospital on June 21, 1997. Dr. Martin diagnosed Plaintiff with major depressive disorder and substance dependence and scored her at GAF 40. (A.R. at 337.)
In February of 1998, Dr. Noroian prescribed Serzone for Plaintiff and soon increased her dosage. (A.R. at 305.) In April, Dr. Noroian introduced a mood stabilizer, Depakote, and then increased that dosage as well several months later. (A.R. at 296, 300.)
In February of 1999, Dr. Noroian diagnosed dysthymic and characterologic disorders. (A.R. at 289-90.) He resumed Trazodone to help with Plaintiff's insomnia, increased the Trazodone dosage the following month and initiated treatment with BuSpar. (A.R. at 290, 288.) In May, Dr. Noroian observed Plaintiff to be in good spirits, with decreased anxiety, agitation and restlessness. (A.R. at 285.) On July 27, 1999, Dr. Noroian made a final diagnosis of cocaine dependence currently in remission, history of alcohol dependence currently in remission, post-traumatic stress disorder, and a borderline personality disorder. (A.R. at 283.)
On October 6, 1999, Plaintiff started seeing Dr. Alice Graham-Brown, a psychiatrist at the Center for Adults and Families. (A.R. at 280-82.) Dr. Graham-Brown noted extreme anxiety with panic attacks, recurrent nightmares with intrusive memories, reduced sleep of two to three hours per night, and a depressed mood. ( Id.) Dr. Graham-Brown diagnosed Plaintiff with cocaine dependence in early remission, posttraumatic stress disorder, and borderline personality disorder. (A.R. at 281.) Dr. Graham-Brown stopped the BuSpar and started Plaintiff on Imipramine. (A.R. at 277.) In several follow-up sessions prior to the end of the year, Plaintiff reported suicidal thoughts. (A.R. at 270-79.)
On August 3, 2000, Plaintiff reported that an increased dosage of Neurontin had helped her anxiety and agitation. (A.R. at 400.) Plaintiff remained relatively stable until February of 2001 when she reported increased depression, anergia, anhedonia, and suicidal ideation. (A.R. at 394.) Dr. Graham-Brown initiated treatment with Wellbutrin. ( Id.) In March, Dr. Graham-Brown increased the Wellbutrin dosage and prescribed Visatril on a short-term basis to deal with Plaintiff's anxiety. (A.R. at 393.) As of June 18, 2001, Dr. Graham-Brown's diagnoses remained unchanged. (A.R. at 389.)
On August 22, 2001, Plaintiff was admitted to the Westfield Respite Center because of depression and suicidal ideation. (A.R. at 415.) The following day, Dr. Graham-Brown increased Plaintiff's Wellbutrin dosage. (A.R. at 416.) Plaintiff left the center on her own on August 28, 2001, but needed crisis intervention shortly thereafter. (A.R. at 413.) On September 6, 2001, Dr. Graham-Brown reported Plaintiff to be at "her baseline" and initiated treatment with Remeron, an anti-psychotic drug. (A.R. at 413-14.)
Meanwhile, in December of 2000 and July of 2001, Plaintiff's therapist at the Center for Adults and Families, Elizabeth McCarty, a licensed mental health counselor, completed psychological assessment forms, countersigned by Dr. Graham-Brown. Each assessment noted "marked" or "extreme" limitations in various work-related activities. (A.R. at 402-08.) The December 2000 assessment also indicated that Plaintiff had marked limitations in activities of daily living. (A.R. at 402.) The administrative law judge's discounting of these assessments forms a significant part of Plaintiff's present appeal. In any event, on various visits between October of 2001 and September of 2003, Dr. Graham-Brown considered Plaintiff's psychiatric diagnoses to be essentially unchanged. (A.R. at 412-582.)
On January 24, 2003, Plaintiff began weekly therapy with Cindy Miller, a licensed social worker at the Center for Adults and Families. (A.R. at 535.) On May 16, 2003, Plaintiff reported a cocaine relapse and Dr. Graham-Brown prescribed more Visatril and Ambien for sleep disorders. (A.R. at 515.) Another psychiatrist, Dr. SuEllen Hamkins, started treating Plaintiff on October 7, 2003, and made an initial diagnosis of post-traumatic stress disorder, cocaine dependence in early remission, alcohol abuse, panic disorder without agoraphobia, and borderline personality disorder in partial remission. (A.R. at 492.) Dr. Hamkins reported that, despite a few anxiety attacks, Plaintiff's mood had improved and that her suicidal ideation had subsided. (A.R. at 491.)
B. PROCEDURAL HISTORY
On August 26, 1999, in the midst of these medical benchmarks, Plaintiff applied for SSI benefits. Plaintiff claimed to be suffering from back and arm pain, mental problems, poor memory, poor concentration, and suicidal thoughts. (A.R. at 133.) Her application was denied on October 21, 1999, and Plaintiff did not seek further review. (A.R. at 79.)
Plaintiff filed a second application for SSI on February 24, 2000, claiming that she became unable to work in July of 1995 due to her impairment. (A.R. at 147.) This application too was denied both initially and on reconsideration, as well as after a November 6, 2001 hearing before an administrative law judge (hereinafter "ALJ"). (A.R. at 79-96, 128-31.) In large measure, the ALJ relied upon the psychiatric review assessments, dated October 13, 1999, April 7, 2000 and July 27, 2000, of Drs. Maxwell Potter and Alex Ursprung of the Disability Determination Services ("DDS"). In essence, they concluded that Plaintiff's impairments were not severe and imposed only slight functional limitations on her ability to work. (A.R. at 358-67, 274A-74J, 379-88.)
On September 5, 2003, the Appeals Council vacated the ALJ's decision and remanded the case for a new hearing because the tapes of the previous hearing had been lost. (A.R. at 75.) A new hearing was held before the same ALJ. In a written decision dated March 25, 2004, the ALJ again determined that Plaintiff was not disabled because she could perform a significant range of light work in the national economy. (A.R. at 19-20.) The Appeals Council thereafter declined review. (A.R. at 8-10.)
In due course, Plaintiff filed this appeal and the parties submitted cross-motions to reverse or affirm. Although Plaintiff's motion requests only reversal, her complaint is broader insofar as she seeks either that the Commissioner's decision be "set aside" so that she may be awarded benefits or "[t]hat the [c]ourt remand the case to the defendant for a fair hearing." (Complaint ¶ 6.) For the reasons which follow, the court has chosen the latter course.
III. DISCUSSION
An individual is entitled to SSI benefits under the Social Security Act if, among other things, she is needy and disabled. See 42 U.S.C. §§ 1381a and 1382c(a)(3). Plaintiff's financial need is not challenged. The question, therefore, is whether the ALJ had substantial evidence with which to conclude that Plaintiff did not suffer from a disability.
A. DISABILITY STANDARD AND THE ALJ'S DECISION
An individual is considered disabled if she is unable to participate in "any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). A claimant is considered disabled under the Act: only if her physical or mental impairments are of such severity that she is not only unable to do her previous work but cannot, considering her 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 she lives, or whether a specific job vacancy exists for her, or whether she would be hired if she applied for work. 42 U.S.C. § 1382c(a)(3)(B). See generally Bowen v. Yuckert, 482 U.S. 137, 146-49 (1987).
In determining disability, the Commissioner follows the five-step protocol described by the First Circuit as follows:
First, is the claimant currently employed? If [s]he is, the claimant is automatically considered not disabled.
Second, does the claimant have a severe impairment? A "severe impairment" means an impairment "which significantly limits the claimant's physical or mental capacity to perform basic work-related functions." If [s]he does not have an impairment of at least this degree of severity, [s]he is automatically considered not disabled.
Third, does the claimant have an impairment equivalent to a specific list of impairments contained in the regulations' Appendix 1, Subpart P, Regulation No. 4. If the claimant has an impairment of so serious a degree of severity, the claimant is automatically found disabled.
. . . .
Fourth, . . . does the claimant's impairment prevent [her] from performing work of the sort [s]he has done in the past? If not, [s]he is not disabled. If so, the agency asks the fifth question.
Fifth, does the claimant's impairment prevent [her] from performing other work of the sort found in the economy? If so, [s]he is disabled; if not, [s]he is not disabled.Goodermote v. Sec'y of Health Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982).
In the instant case, the ALJ found as follows with respect to these questions: that Plaintiff had not engaged in substantial gainful activity since the alleged onset of her disability (question one); that she had impairments that were "severe," although not severe enough to be listed in Appendix 1 (questions two and three); that Plaintiff had no past relevant work, so a determination of whether she was unable to perform such work was not possible (question four); and that Plaintiff was able to perform a significant number of jobs in the national economy which involve "light work," such as an assembler or packer (question five). (A.R. at 20-21.) As a result, the ALJ concluded that Plaintiff did not suffer from a disability.
B. ANALYSIS OF PLAINTIFF'S CHALLENGE TO ALJ'S DECISION
Plaintiff's arguments have two main themes. First, Plaintiff argues that the ALJ failed to give sufficient weight to her subjective complaints. Second, Plaintiff argues that the ALJ substituted his personal opinion for those of Plaintiff's treating physicians. For the reasons which follow, the court finds Plaintiff's first argument wanting, but concludes that at least one critical aspect of her second argument is strong enough to warrant remand.
1. Subjective Complaints
Plaintiff's first argument can be disposed of in relatively short order. Plaintiff maintains that the ALJ impermissibly found her testimony to be "generally credible but exaggerated in the degree of limitations attested." (A.R. at 18.) More specifically, the ALJ found that Plaintiff's allegations were credible to the extent she claimed significant limitations caused by posttraumatic stress disorder, depression, panic disorder, and bipolar disorder. (A.R. at 17.) Nonetheless, the ALJ concluded, Plaintiff's claim that she was unable to work was not credible because it was unsupported by objective medical findings. (A.R. at 18.)
After reviewing the record, the court finds the ALJ's credibility conclusion to be supported by substantial evidence. As the ALJ explained, Plaintiff's deterioration in functioning appears to have been "episodic" rather than "continual," as well as concurrent with relapses to drug and alcohol use. (A.R. at 18). Perhaps more importantly, as the First Circuit has frequently explained, an administrative law judge is not required to take a claimant's subjective allegations at face value. See Bianchi v. Sec'y of Health Human Servs., 764 F.2d 44, 45 (1st Cir. 1985) (citing Burgos Lopez v. Sec'y of Health Human Servs., 747 F.2d 37, 40 (1st Cir. 1984)). It is also well established that a court must generally defer to credibility determinations made by an administrative law judge. See Frustaglia v. Sec'y of Health Human Servs., 829 F.2d 192, 195 (1st Cir. 1987); Brown v. Sec'y of Health Human Servs., 740 F. Supp. 28, 36 (D. Mass. 1990). Here, in the court's estimation, the ALJ's credibility determinations, as well as his analysis of Plaintiff's subjective complaints, were sufficiently grounded in the evidence presented.
2. Weight Assigned to Treating Sources
For her second argument, Plaintiff asserts that the ALJ improperly substituted his own personal opinion for those of Plaintiff's treating sources. For the most part, the court disagrees. The two DDS psychologists upon whom the ALJ principally relied assessed Plaintiff as having no severe physical or mental impairments and those assessments appear to have substantial enough support in the record.
To be sure, Plaintiff claims that these DDS assessments were based only on Plaintiff's medical records through April of 2000 and, therefore, that the ALJ relied on an incomplete record. In his decision, however, the ALJ specifically noted that he had considered all the objective medical evidence of record, not just the DDS assessments. Moreover, as Plaintiff must acknowledge, an administrative law judge is ultimately responsible for "piec[ing] together the relevant medical facts from the findings and opinions of multiple physicians." Evangelista v. Sec'y of Health Human Services, 826 F.2d 136, 144 (1st Cir. 1987). Thus, even were the DDS assessments contradicted by treating medical sources, resolution of such conflicts remains the responsibility of the administrative law judge. See Lizotte v. Sec'y of Health Human Services, 654 F.2d 127, 128 (1st Cir. 1981). See also Rodriguez Pagan v. Sec'y of Health Human Services, 819 F.2d 1, 3 (1st Cir. 1987) (administrative law judge is entitled to diminish the value of a treating source's assessment if it appears that the physician "relied excessively on claimant's subjective complaints, rather than on objective medical findings"). In the court's opinion, that resolution is adequately supported by the record.
Nonetheless, the court finds merit in an aspect of another argument pursued by Plaintiff, namely, that the ALJ improperly discounted the assessments of Plaintiff's therapist, Ms. McCarty, because she was "a third party observer rather than an acceptable medical source." (A.R. at 17.) This conclusion, Plaintiff argues, was erroneous because Dr. Brown-Graham, a psychiatrist, had signed off on Ms. McCarty's assessments. Thus, the assessments ought to have been considered as coming from an acceptable medical source and given greater weight. The court agrees.
At the core of Plaintiff's argument is a governing regulation which provides, in pertinent part, that the Commissioner "need[s] evidence from acceptable medical sources to establish whether [a claimant has] a medically determinable impairment(s)." 20 C.F.R. § 416.913(a) (2005) "Acceptable medical sources" are defined as "[l]icensed physicians" and "[l]icensed or certified psychologists." Id. "[T]herapists" such as Ms. McCarty, however, are listed simply as "other sources," i.e., individuals who "may" be used "to show the severity of [the] impairment(s) and how it affects [the claimant's] ability to work." 20 C.F.R. § 416.913(d)(1). According to the ALJ, and in turn the Commissioner, Ms. McCarty was not an acceptable medical source and, therefore, her assessments could be discounted.
Specifically, the ALJ stated as follows: "I give greater weight to the treating notes of the claimant's treating psychiatrist, an accepted medical source, than to the opinion of her therapist, whose opinion is that of a third party observer rather than an acceptable medical source. Therefore, I find the claimant has no marked limitations in mental functioning." (A.R. at 17.)
The court itself has lent support to the proposition that therapists, like nurses, are not acceptable medical sources. See Arroyo v. Barnhart, 295 F. Supp. 2d 214, 221 (D. Mass. 2003) (observing that "nurses are not specifically listed in the governing regulations as individuals who can provide impairment evidence"). But as the court observed in Arroyo, "medical sources other than those listed in § 416.913(a), including nurse-practitioners [and therapists], can be used to show an impairment's severity." Id. (citing 20 C.F.R. 416.913(d)). Thus, the rejection of Ms. McCarty's assessment by the ALJ without at least some analysis on his part, was itself error. More significantly, Ms. McCarty's assessments, which noted marked limitations in Plaintiff's functioning, were countersigned by an unassailably acceptable medical source, Dr. Graham-Brown. As such, the assessments carry significantly greater weight than that assigned by the ALJ. Cf. Gomez v. Chater, 74 F.3d 967, 971-72 (9th Cir. 1996) (holding that an "other source" working in conjunction with an "acceptable medical source" constitutes an "acceptable medical source" under former regulation). In essence, therefore, the ALJ erred in rejecting those assessments.
Citing this error, Plaintiff requests outright reversal of the ALJ's decision, as opposed to a remand. Plaintiff argues that, added to the other evidence, the assessments would have enabled her at the second step of the five-step protocol to "meet the severity standards of Listings 12.04A, 12.06A, and 12.08A." (Plaintiff's Brief at 17.) Unfortunately for her cause, the court is not that convinced. The court is unable to determine from the record presented that each and every element of these three complex listings of impairments — Nos. 12.04 (Affective Disorders), 12.06 (Anxiety Related Disorders) and 12.08 (Personality Disorders) of 20 C.F.R. Pt. 404, Subpt. P, App. 1 (2005) — have been met.
For example, Listing No. 12.04 states that the required level of severity for an affective disorder will be met only "when the requirements in both [paragraphs] A and B are satisfied, or when the requirements in [paragraph] C are satisfied." In her argument, however, Plaintiff never mentions paragraphs B or C, but only paragraph A. Complicating the matter further is the fact that Ms. McCarty's assessments (see A.R. at 402, 407) appear to apply, if at all, only to paragraph B, i.e., that Plaintiff exhibited "at least two of the following: 1. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining social functioning; or 3. Marked difficulties in maintaining concentration, persistence, or pace; or 4. Repeated episodes of decompensation, each of extended duration." 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing No. 12.04(B) (2005). There is similar confusion with respect to how Ms. McCarty's assessments pertain to the elements of Listing Nos. 12.06 and 12.08 and how her assessments would have added to the overall picture of Plaintiff's mental health.
The court recognizes that Plaintiff has already encountered significant delay and respects her request for finality. However, for the reasons stated, the court believes it necessary to remand the matter so that the ALJ can properly weigh all the evidence, including the previously discounted assessments, to redetermine Plaintiff's eligibility. See Arroyo, 295 F. Supp. 2d at 222 (ordering remand given the insufficiency of the present analysis).
IV. CONCLUSION
For the reasons stated, the court ALLOWS Plaintiff's motion to the extent it seeks remand and hereby remands the matter for further proceedings consistent with this opinion. Defendant's motion to affirm is DENIED.
IT IS SO ORDERED.