Opinion
Civil No. 01-1164 (JRT/SRN)
September 30, 2002
Jennifer G. Mrozik, Hoglund, Chwialkowski Greeman, Minnetonka, MN, for plaintiff.
Lonnie F. Bryan, Assistant United States Attorney, Minneapolis, MN, for defendant.
MEMORDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Plaintiff Wanda Williams ("Williams") is suing the Commissioner of Social Security ("Commissioner"), seeking judicial review of the Commissioner's denial of her application for Supplemental Security Income ("SSI") under the Social Security Act. Plaintiff moved for summary judgment, asking this Court to reverse the Commissioner's decision or to remand for further administrative proceedings. The Commissioner filed a cross-motion for summary judgment.
The matter is now before the Court on the Commissioner's objections to the Report and Recommendation of United States Magistrate Judge Susan Richard Nelson, dated June 11, 2002. The Magistrate Judge recommended remanding the Commissioner's decision. The Court has reviewed de novo the objections to the Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(C) and D. Minn. LR 72.1(c)(2). For the reasons set forth below, the Court adopts the Magistrate Judge's recommendation. The Commissioner's decision will be vacated and remanded for further administrative proceedings
BACKGROUND I. Procedural History
Williams applied for SSI benefits on June 23, 1999, claiming that she became disabled on July 1, 1999 due to anxiety attacks, high blood pressure, and an injured leg. Her application was denied initially and upon reconsideration. Williams requested a hearing, which was held on December 28, 2000 before Administrative Law Judge ("ALJ") Peter C. Erickson. Williams was represented by counsel. The witnesses at this hearing were Williams, Dr. Frank Indihar, the neutral Medical Expert, and L. David Russell, the neutral Vocational Expert. The ALJ determined that Williams was not disabled. The Appeals Council denied Williams's request for review, and the ALJ's decision thus became the Commissioner's final decision. Williams filed the present lawsuit on June 27, 2001.
Only Williams's mental health claims are relevant to this lawsuit.
II. Factual Background
Williams was born on October 18, 1962. She has completed high school, and previously has worked as a cleaner, landscape worker, merchandiser, and cashier. Williams has undergone several psychiatric evaluations that are relevant to this case.
A. August 1997 — First Consultative Examination
The record contains medical evidence of two relevant incidents that occurred before this examination. In June 1997, Williams was examined by Dr. Hossein Fatemi of the University of Minnesota Health System, who determined that Williams had a history of substance abuse, suicidal ideation, and had attempted suicide. (Tr. at 276.). He also concluded that Williams suffered from paranoid ideation, suicidal ideation, and vague homicidal ideation (though with no potential victims). (Tr. at 277.) Dr. Fatemi opined that Williams' psychological problems were due to dependency on multiple drugs. (Id.) In July 1997, Williams was evaluated at Fairview University Medical Center for anger outbursts and depression. (Tr. at 274.)
On August 25, 1997, Williams received a consultative psychological examination from Dr. David Fisher. At the time, Williams told Dr. Fisher that she was not working, and that she lived with her sister's family with whom she got along well. After examining Williams, Dr. Fisher diagnosed her with "[p]ain disorder associated with both psychological factors and a medical condition," and "oppositional personality traits." (Tr. at 284.) Dr. Fisher also offered this "somewhat provisional" assessment of Williams's capabilities:
Her prognosis, perhaps without participating in a chronic pain program, is probably not very good. . . . Without reference to her physical discomfort, I do think that she has the ability to concentrate, understand instructions, and carry out tasks with reasonable persistence. There may be some conflict between her and co-workers and supervisors, resulting from her temper, although I do not think that this would absolutely prevent her from being gainfully employed. I think she has the ability to tolerate a reasonable amount of stress on the job.
(Tr. at 284-85.)
B. September 1997 — First Reviewing Psychologist and RFC Assessment
On September 16, 1997, a State Agency reviewing psychologist, Michael DeSactis, reviewed Dr. Fisher's report. DeSactis filled out forms to determine whether Williams met the requirement for a "severe" personality disorder under the regulations. DeSactis evaluated Williams as having: (1) slight to moderate restriction of activities of daily living; (2) moderate difficulties maintaining social functioning; (3) often experienced deficiencies of concentration, persistence, or pace resulting in failure to complete tasks in a timely manner; and (4) no episodes of deterioration or decompensation in work or work-like settings. (Tr. at 311.) DeSactis also evaluated Williams's mental residual functional capacity ("RFC").
DeSactis assessed Williams's mental RFC as follows:
• The claimant retains the capacity to concentrate on, understand, and remember routine, repetitive instructions, but would have marked problems with both detailed and complex instructions.
• The claimant's ability to carry out tasks with adequate persistence and pace would be moderately impaired, but adequate for routine, repetitive tasks, but not for detailed or complex tasks.
• The claimant's ability to interact and get along with co-workers would be mildly to moderately impaired, but adequate for superficial contact.
• The claimant's ability to interact with the public would not be significantly impaired.
• The claimant's ability to sustain an ordinary routine without special supervision is not significantly impaired.
• The claimant's ability to accept supervision would not be significantly impaired.
• The claimant's ability to handle stress would be moderately impaired, but adequate to tolerate the routine stressors of a routine, repetitive work setting.
(Tr. at 303.)
C. September 1999 — Second Consultative Examination
On September 10, 1999, Williams underwent another psychiatric evaluation, conducted by Dr. Alford Karayusuf. Williams told Dr. Karayusuf that she still lived with her sister, who she described as her "backbone" and who, in the words of Dr. Karayusuf, Williams needed "to take care of her and run interference between her and other people to minimize the effects and the damage caused by [her] temper outbursts." (Tr. at 331.) Williams stated that she got along with her sister. After examining Williams and learning of her activities and limitations, Dr. Karayusuf made a provisional diagnosis of "anxiety disorder" and "intermittent explosive disorder." (Tr. at 332.) Dr. Karayusuf concluded with this assessment:
[Williams] is able to understand, retain, and follow simple instructions. She is not able to interact effectively with the public. She is generally restricted to very brief, superficial interactions with fellow workers and supervisors. She is generally restricted to performing simple, routine, repetitive, concrete, tangible tasks. The major obstacle likely to interfere with [Williams's] long-term productivity and ability to sustain productive employment is the frequence [sic] of her temper outbursts. To the extent she loses her temper on the job, she is likely to be fired from employment situations. She would do best working alone as much of the time as possible.
(Tr. at 332) (emphasis added).
D. September 1999 — Second Reviewing Psychologist and RFC Assessment
On September 22, 1999, James Alsdurf reviewed Williams's complete record, including the findings of Dr. Fisher, Dr. Karayusuf, and DeSactis. Like DeSactis, Alsdurf filled out forms to determine whether Williams met the requirement for "severe" personality disorder under the regulations. Alsdurf's findings in this regard were substantially the same as those by DeSactis. (Compare Tr. at 344 with Tr. at 311.). Alsdurf also assessed Williams's mental RFC. Alsdurf's RFC assessment differed somewhat from that of DeSactis.
Alsdurf rated Williams' mental RFC as follows:
• [Williams] retains the capacity to concentrate on, understand, and remember routine, repetitive tasks, and three and four step, uncomplicated instructions, but would have moderate problems with detailed [instructions], and marked problems with complex instructions.
• The claimant's ability to carry out tasks with adequate persistence and pace would be intact for routine repetitive, or three and four step tasks, but moderately impaired for detailed [tasks] and markedly impaired for complex tasks.
• The claimant's ability to interact and get along with co-workers would be moderately impaired, but adequate for brief, infrequent, and superficial contact.
• The claimant's ability to interact with the public would be moderately impaired, but adequate for brief, infrequent, and superficial contact.
• The claimant's ability to accept supervision would be moderately impaired, but adequate to cope with ordinary levels of supervision found in a customary work setting.
• The claimant's ability to handle stress would be moderately impaired, but adequate to tolerate the routine stressors of a routine, repetitive and three and four step setting.
(Tr. at 335.)
E. March 2000 — Williams's Description of her Daily Activities
On March 8, 2000, Williams completed an "Activities of Daily Living Questionnaire," possibly for the Social Security Administration. This is a subjective questionnaire in which Williams described her impairment, symptoms, daily activities, and capabilities. While it does not represent medical evidence, it does provide further evidence of Williams's subjective views about her condition.In the questionnaire, Williams said that she had anxiety problems, that she did "not get along with people and [is] very moody," and that she gets "extremely angry" when under pressure. (Tr. at 243-44, 247.) She stated that she had one friend, her roommate, and that she gets along with her children but does not see the rest of her family. Williams stated that at the time she filled out the questionnaire, she had been working part-time for the previous year and one-half, but that she was planning to quit because the job required lifting and standing, and she was "no longer able to do that." (Tr. at 248.) Williams stated that she did not get along in groups, and did not like going out in public places. She stated that her roommate usually went along when she left the house, which was two to three times per week. As for daily activities, Williams stated that she was able to attend hair and doctor appointments herself, but that she needed her roommate's help with most other activities and that she couldn't "cook, clean, or do household chores without assistance." (Tr. at 244.) She stated that she had "difficulty walking, doing the laundry, housework, dusting, washing floors and walls and cleaning the oven," and that her roommate usually did those things for her. (Tr. at 247.) She also noted that she needed her roommate's help to bathe. (Tr. at 247.)
F. November 2000 — Treating Physician's Record
The record contains only one medical report from Williams's primary care physician, Dr. Jeffrey Hanson. On November 6, 2000, approximately two months before Williams's hearing before the ALJ, Dr. Hanson responded to a Request for Medical Opinion from the Minnesota Department of Economic Assistance. Dr. Hanson indicated by checking a box that Williams suffered from mental illness, specifying that she suffered from depression, anxiety, and anger. He also diagnosed Williams as having chronic back pain, as well as depression, anxiety, and anger issues. Dr. Hanson listed the onset date of these symptoms as October 2000, and stated that it was "unclear" how long they would last. (Tr. at 431.) Finally, Dr. Hanson checked a box indicating that Williams could not at that time perform any employment. Dr. Hanson's conclusions in this one-page document are not supported by any medical records or other evidence. This document is the only medical record provided by Williams' treating physician, and is the only medical record indicating Williams' medical condition near the time of the hearing.
In April 2000, Williams was treated overnight for chest pain at Fairview University Medical Center. She also complained of anxiety, stress, and depression. She was referred to Dr. Hanson for follow up, but the record contains no evidence of such a visit.
The ALJ appears to have ignored this opinion. In his decision, the ALJ stated that "none of [Williams's] treating or examining physicians or psychologists have expressed the opinion that [Williams] is unable to work." (Tr. at 22.) It is clear from the record that Dr. Hanson is Williams's primary care physician.
Of the records relied upon by the ALJ, the one closest in time to the hearing was Dr. Karayusuf's examination, which was conducted in September 1999, more than one year before the hearing.
G. Hearing Testimony 1. Williams's Testimony
At the hearing, Williams testified that she no longer lives with her sister, and that she no longer sees or gets along with her family. Williams also testified that her minor children had been placed in her husband's custody by court order. Williams stated that she voluntarily moved out of her sister's home and into a homeless shelter in April 2000. Williams stated that she lived with another woman who was her roommate and friend. She testified that she and her roommate share housework and cooking, and that her roommate is her only friend. Williams testified that she goes outside approximately every other day, when she is upset. She further testified that she occasionally sees other people in her building, but if they see she is not in a good mood, they do not interact with her. Williams testified that she has a temper and can "blow up easily." (Tr. at 41.) She also testified that Dr. Hanson was trying to arrange for her to see a therapist, and that she was taking the medication Paxil, which helped calm her down.2. Medical Expert's Testimony
Dr. Frank Indihar testified as the neutral Medical Expert. He offered his opinions on Williams's physical condition, but did not testify about her mental status. His only reference to her mental status was a recitation of the psychiatric diagnoses by Drs. Karayusuf, Fisher, Hanson, and Mr. Alsdurf, about which he stated, "not being a psychiatrist I'm not qualified on those, but I think the record can speak for itself." (Tr. at 66.)
3. Vocational Expert's Testimony
The ALJ posed three hypothetical situations to the Vocational Expert ("VE"). First, the ALJ asked whether a hypothetical person with Williams's physical and mental limitations could find any jobs that required brief and superficial contacts with coworkers and supervisors, where she could perform the job function alone, and which involved "[n]o interaction with the public." (Tr. at 72.) The VE responded that no such jobs would be available, explaining that "the tough condition to meet . . . is the solitude. There just aren't jobs that are generally performed in a social vacuum." (Id.) The ALJ then clarified the hypothetical as follows:
What I meant is that in doing the job, not that she be by herself, but that she not have to . . . be dealing with another person, another co-worker in order to get the job done. So, in my mind, oh, a cleaner would fit that kind of requirement. . . . Even maybe a person that's a casher [sic] sitting in a parking lot booth. That's . . . the kind of thing I'm talking about.
(Tr. at 72-73.) The VE responded that approximately 7,000 simple assembly and 7,000 packaging jobs are available to such a person. The ALJ then modified the hypothetical again, to allow for "very brief and superficial contact with the public." (Tr. at 74.) The VE responded that there would be approximately 5,000 additional such jobs for the hypothetical person.
ANALYSIS
The Court may reject the Commissioner's decision only if it is not supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is that which "a reasonable mind might accept as adequate" to support the Commissioner's conclusion. Smith v. Shalala, 987 F.2d 1371, 1373 (8th Cir. 1993). The Court may not substitute its own judgment or findings of fact when reviewing the record for substantial evidence. Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). While a claimant for benefits has the burden of proving a disability, the ALJ has the duty to develop the record fully and fairly, even when, as here, the claimant is represented by counsel. Boyd v. Sullivan, 960 F.2d 733, 736 (8th Cir. 1992); Warner v. Heckler, 722 F.2d 428, 431 (8th Cir. 1983).
The Magistrate Judge found that the ALJ did not perform the crucial duty of fully and fairly developing the record. Specifically, the Magistrate Judge found that the record contained insufficient medical evidence of Williams's mental condition. The Magistrate Judge also determined that the ALJ did not properly consider what evidence there was of Williams's mental state, noting that the Medical Expert testified only on physical limitations. The Magistrate Judge stated that the ALJ should have appointed a medical expert who was competent to evaluate psychological evidence.
When a claimant's medical records do not supply enough information to make an informed decision, the ALJ may fulfill [the duty to fully and fairly develop the record] by ordering a consultative examination. . . . [I]t is reversible error for an ALJ not to order a consultative examination when such an evaluation is necessary for him to make an informed decision.
Boyd, 960 F.2d at 736 (citations and quotation marks omitted). "The need for medical evidence, however, does not require the [Commissioner] to produce additional evidence. . . . An ALJ is permitted to issue a decision without obtaining additional medical evidence so long as other evidence in the record provides a sufficient basis for the ALJ's decision." Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995) (quoting Naber v. Shalala, 22 F.3d 186, 189 (8th Cir. 1994) (quotation marks omitted)). Despite these principles, one type of medical evidence is crucial to an ALJ's determination. The record must contain medical evidence of the claimant's RFC at the time of the hearing. Frankl v. Shalala, 47 F.3d 935, 937 (8th Cir. 1995). If the record contains no such evidence, the ALJ's decision "cannot be said to be supported by substantial evidence." Id.; Anderson, 51 F.3d at 779.
In the present case, the ALJ's decision must be remanded because the record contains no medical evidence of Williams's mental RFC at the time of her hearing. The ALJ's decision on mental issues is based almost exclusively on the examination and report by Dr. Karayusuf, which was prepared in September 1999. Moreover, the ALJ's decision gives little indication that he considered any evidence, medical or otherwise, that is more recent than September 1999. One exception is a citation to the March 2000 "Activities of Daily Living Questionnaire," in which the ALJ twice noted that Williams "states that she reads, watches television, goes for walks, and talks to neighbors." (Tr. at 20, 22.) This citation shows that the ALJ was aware of the March 2000 evidence; it raises the question, however, of why his decision makes no references to those parts of the questionnaire that clearly contradict Dr. Karayusuf's report, to the November 2000 assessment by Williams's treating physician, or to her hearing testimony. The Court does not quibble over what the ALJ chose to include in his report, and an ALJ need not discuss every item of evidence submitted. Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998). However, the Court finds the ALJ's omissions and inaccuracies in this case to be significant; they represent a failure to recognize major changes in Williams's circumstances between Dr. Karayusuf's September 1999 evaluation and the hearing in December 2000. These changes — the falling-out with her family, living in a homeless shelter, moving in with her roommate — suggest that Williams's mental RFC could have changed in the fifteen months between her last examination and the hearing.
The ALJ does suggest that he considered evidence from after September 1999. This suggestion, however, calls the ALJ's ultimate decision into further question. The ALJ concedes that earlier assessments of Williams's physical and mental state did not reflect her true level of impairment. The ALJ specifically cites Williams's physical RFC assessments and the Alsdurf mental RFC from September 1999 as such inaccurate assessments. The ALJ attributes the discrepancy between these assessments and his purported conclusion "to the additional evidence which was unavailable to those reviewers. This additional evidence includes the testimony of the medical expert, Dr. Indihar." (Tr. at 21.)
The ALJ does not say whether there was other "additional evidence" besides Dr. Indihar's testimony. If the ALJ considered such evidence, neither the written decision nor the record suggests what that evidence was. Dr. Indihar's testimony could not influence the ALJ's decision on mental capacity, because Dr. Indihar did not testify on mental issues. Therefore, the Court concludes that to the extent the ALJ considered changes in Williams's capabilities between September 1999 and the hearing date, such consideration was confined to evidence of physical — not mental — limitations.
Dr. Hanson's opinion is not supported by medical evidence, and therefore is not entitled to deference. See Smallwood v. Chater, 65 F.3d 87, 89 (8th Cir. 1995). Nevertheless, it is one indication of how Williams's mental RFC might have c hanged between September 1999 and the hearing in December 2000.
Another such indication is Williams's subjective testimony. The ALJ evaluated Williams's subjective complaints pursuant to Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984), and found them t o be "not entirely credible." (Tr. at 21.) This determination is based at least in part upon old, contradicted evidence, and appears to have ignored the very existence of Hanson's opinion that Williams cannot work. Given these and other irregularities i n the ALJ's decision, the Court finds his discounting of Williams's credibility insufficient to overcome the absence of medical evidence in the record.
Not only does the ALJ's decision fail to mention this evidence, it makes assertions that blatantly contradict the record. For example, the ALJ stated that "evidence indicates that the claimant gets along with family members, particularly her sister with whom she resides." This information comes from Dr. Karayusuf's September 1999 report. The hearing transcript clearly shows, however, that Williams no longer lived with her sister in December 2000. (Tr. at 34.) The ALJ also cited Dr. Karayusuf's report to note that Williams stated she watches four hours of television per day and cooks for herself. (Tr. at 20, 21.) In her hearing testimony and in the March 2000 questionnaire, however, Williams stated that she watches television eight hours per day and cannot cook for herself without assistance. (Tr. at 43, 246.) Finally, the ALJ stated that "none of [Williams's] treating or examining physicians . . . have expressed the opinion that [she] is unable to work." (Tr. at 22.) However, as noted above, the record contains precisely such an opinion from Williams's treating physician. (Tr. at 431.)
This Court need not even make such a presumption. The law is clear that if the record does not contain medical evidence of the claimant's RFC at the time of the hearing, it is impossible for the ALJ's decision to be based upon substantial evidence. See Anderson, 51 F.3d at 779; Frankl, 47 F.3d at 938 ("Absent some medical evidence of [claimant's] RFC at the time of the hearing, the Secretary could not meet her burden. . . .") (emphasis original); Weiler v. Apfel, 179 F.3d 1107, 1109 (8th Cir. 1999) (emphasizing the requirement that the record contain medical evidence of RFC at the time of the hearing). As discussed above, the record in this case contains no such evidence.
The ALJ determined that although Williams's mental problems were "severe," they did not meet or equal the requirements in the Listing of Impairments in the Social Security regulations. The Court finds that this determination, and the RFC that led to the hypotheticals, were not based upon medical evidence of Williams's RFC at the time of the hearing, but rather on Williams's condition more than one year earlier. Because the record contains no evidence of Williams's RFC when the hearing was held, the Court finds that the ALJ's decision is not supported by substantial evidence on the record as a whole. Accordingly, the Court will adopt the Magistrate Judge's Report and Recommendation. The Commissioner's decision will be vacated and remanded to the Social Security Administration for further proceedings consistent with this opinion.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, the Court OVERRULES defendant's objections [Docket No. 17] and ADOPTS the Magistrate Judge's Report and Recommendation. Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's Motion for Summary Judgment [Docket No. 9] is GRANTED IN PART and DENIED IN PART as follows: The final decision of the commissioner is vacated, and this case is hereby remanded for further administrative proceedings consistent with the Court's Memorandum Opinion accompanying this Order.
2. Defendant's Motion for Summary Judgment [Docket No. 14] is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.