Opinion
4:03CV3119
March 29, 2004
MEMORANDUM AND ORDER ON REVIEW OF THE FINAL DECISION OF THE COMMISSIONER OF SOCIAL SECURITY
Now before me is Plaintiff Bradley Young's Complaint, filing 1, which is brought pursuant to 42 U.S.C. § 405(g) and 1383(c)(3). The plaintiff seeks a review of Defendant Commissioner of Social Security's decision denying the plaintiff's applications for disability insurance benefits under Title II of the Social Security Act (Act), as amended,see 42 U.S.C. § 401 et seq., and for supplemental security income benefits under Title XVI of the Act,see 42 U.S.C. § 1381 et seq. The defendant has responded to the plaintiff's complaint by filing an answer and a transcript of the administrative record. (See filings 6, 7.) In addition, each of the parties has submitted a brief in support of his or her position. (See generally Pl.'s Opening Mem., filing 10 (Pl.'s Br.); Def.'s Reply Br., filing 11 (Def.'s Br.); Pl.'s Reply Br., filing 12 (Pl.'s Reply Br.).) After carefully reviewing these materials, I find that the case must be remanded for further proceedings.
I. BACKGROUND
In September or October of 1999, the plaintiff filed (or was deemed to have filed) applications for benefits under Titles II and XVI of the Social Security Act. (See Transcript of Social Security Proceedings, filing 7, (hereinafter "Tr.") at 20, 89.) The application appears to be based upon allegations that the plaintiff has been unable to work since August 21, 1999, (see id. at 89), due to "severe trauma to the brain," (id. at 103). After his application was denied initially, (see id. at 58, 63-66), and on reconsideration, (see id. at 59-62, 69-73), the plaintiff requested a hearing before an Administrative Law Judge (ALJ), (see id. at 74). This hearing was conducted on November 29, 2000, (see id. at 32-57) and, in a decision dated May 4, 2001, the ALJ concluded that the plaintiff was entitled to disability insurance benefits, (see id. at 20-26). In reaching this conclusion, the ALJ found,inter alia, the following:
2. The claimant has not engaged in substantial gainful activity since January 17, 2001.
3. The medical evidence establishes that the claimant has a severe intracranial injury, an organic mental disorder, and a back condition; however, none of his conditions were at a level of severity to meet or equal the criteria for any Listing of Impairments until January 17, 2001.
4. The claimant's testimony is found to be relatively credible, except to the extent that he contends that his condition was disabling for 12 continuous months prior to January 17, 2001.
5. Prior to January 17, 2001, the claimant had the residual functional capacity to perform medium work which required lifting and carrying 25 pounds frequently and 50 pounds on occasion; sitting, standing, and walking for 6 hours each; occasional climbing; and avoiding vibration and hazards.
6. The claimant's past relevant work duties as an auto body repairman, mechanic's helper, and general laborer would not have been precluded by the above limitation(s) ( 20 C.F.R. § 404.1565 and 416.965).
7. The claimant's impairments prior to January 17, 2001, would not have prevented him from performing the duties of an auto body repairman, mechanic's helper, and general laborer.
8. As of January 17, 2001, the severity of the claimant's organic mental disorder meets the requirements of section 12.02, Appendix 1, Subpart P, Regulations No. 4 and will preclude him from working for at least 12 continuous months ( 20 C.F.R. § 404.1525 and 416.925).
9. The claimant has been under a "disability[,"] as defined in the Social Security Act, since January 17, 2001 ( 20 C.F.R. § 404.1520(d) and 416.920).
(Tr. at. 25.)
The plaintiff requested that the Appeals Council of the Social Security Administration review the ALJ's decision. (See Tr. at 13.) This request was denied by letter dated January 27, 2003, (see Tr. at 5-6), and, therefore, the ALJ's decision stands as the final decision of the Commissioner of Social Security.
On March 31, 2003, the plaintiff filed the instant action. (See Compl., filing 1.) The plaintiff seeks, inter alia, a reversal of the Commissioner's decision. (See id. at 2.) My analysis of the plaintiff's position, which is set forth in his briefs, (see Pl.'s Br.; Pl.'s Reply Br.), follows.
II. STANDARD OF REVIEW
In reviewing the Commissioner's decision, I must ascertain "whether there is substantial evidence on the record as a whole to support the . . . decision." Hutsell v. Sullivan, 892 F.2d 747, 748-49 (8th Cir. 1989) (citation omitted). "Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion." Hogan v. Apfel, 239 F.3d 958, 960-61 (8th Cir. 2001). See also Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotingConsolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The decision should not be reversed "merely because substantial evidence would have supported an opposite conclusion." Harris v. Shalala, 45 F.3d 1190, 1193 (8th Cir. 1995) (citation omitted). However, the court's review is not simply "a rubber stamp for the [Commissioner's] decision and involves more than a search for evidence supporting the [Commissioner's] findings." Tome v. Schweiker, 724 F.2d 711, 713 (8th Cir. 1984). Indeed, "[t]o determine whether existing evidence is substantial, `[I] must consider evidence that detracts from the [Commissioner's] decision as well as evidence that supports it.'" Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999) (quoting Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)). In addition, the court's review of the decision must include a determination as to whether the proper legal standards were applied.See Nettles v. Schweiker, 714 F.2d 833, 835-36 (8th Cir. 1983).
An ALJ is required to follow a five-step sequential analysis to determine whether an individual claimant is disabled. See 20 C.F.R. § 404.1520; id. § 416.920. The ALJ continues the analysis until the claimant is found to be "not disabled" at any one of the steps, or is found to be "disabled" at step three or step five.See id. Step one requires the ALJ to determine whether the claimant is currently engaged in any substantial gainful activity. See 20 C.F.R. § 404.1520(b); id. § 416.920(b). If the claimant is engaged in substantial gainful activity, the ALJ will find that the claimant is not disabled. See id. Step two requires the ALJ to determine whether the claimant has an impairment or a combination of impairments that significantly limits his ability to do basic work activities. See 20 C.F.R. § 404.1520(c); id. § 416.920(c). Such activities include, inter alia, walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, seeing, hearing, speaking, and understanding. 20 C.F.R. § 404.1521(b); id. § 416.921(b). If the claimant cannot prove such an impairment, the ALJ will find that the claimant is not disabled. See 20 C.F.R. § 404.1520(c); id. § 416.920(c). Step three requires the ALJ to compare the claimant's impairment or combination of impairments to a list of predetermined "disabling" impairments. See 20 C.F.R. § 404.1520(d); id. § 416.920(d). If the claimant has an impairment that is listed or is equal to a listed impairment, the analysis ends and the claimant is found to be "disabled." See id. If a claimant does not suffer from a listed impairment or its equivalent, then the analysis proceeds to steps four and five. Step four requires the ALJ to consider the claimant's residual functional capacity to determine whether the impairment or impairments prevent the claimant from engaging in past relevant work. See 20 C.F.R. § 404.1520(f); id. § 416.920(f). If the claimant is able to perform any past relevant work, the ALJ will find that the claimant is not disabled. See id. Step five requires the ALJ to consider the claimant's residual functional capacity, age, education, and past work experience to determine whether the claimant can do work other than that which the claimant has done in the past.See 20 C.F.R. § 404.1520(g)(1); id. § 416.920(g)(1). If the ALJ determines that the claimant cannot do such work, the claimant will be found to be "disabled" at step five. "In order to qualify for disability benefits, a claimant bears the burden of proving that he or she is unable to engage in any substantial gainful activity because of a medically determinable physical or mental impairment which is expected to last for at least twelve months or result in death." Nettles v. Schweiker, 714 F.2d 833, 836 (8th Cir. 1983). However, at step five of the sequential analysis described above, the burden shifts to the Commissioner to establish that the claimant has the residual functional capacity to do "some job that exists in the national economy." Id. In this case, the ALJ's finding that the plaintiff was disabled as of January 17, 2001, was made at step three of the sequential analysis. (See Tr. at 25.) Prior to that date, the ALJ found that the plaintiff was not disabled at step four of the analysis. (See id.)
"`Residual functional capacity' is what the claimant is able to do despite limitations caused by all of the claimant's impairments."Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000) (citing 20 C.F.R. § 404.1545(a)).
III. THE PLAINTIFF'S MEDICAL HISTORY
On or about January 5, 1999, the plaintiff slipped and fell while working, injuring his lower back. (See Tr. at 331.) X-rays revealed no fractures or dislocations, and the plaintiff was allowed to return to work with instructions to avoid heavy lifting and repeated bending or stooping. (See id.) The plaintiff's pain was expected to resolve within two weeks. (See id.)
On August 21, 1999, the plaintiff was admitted to the Bennett County Health Care Center Emergency room after having been found lying unconscious in a field. (See Tr. at 160-61.) It appeared that the plaintiff was the victim of an assault. (See id. at 161.) The plaintiff was transported via "air ambulance" to the Rapid City Regional Hospital for further evaluation and treatment. (See Tr. at 161, 162, 198.) Initial examination revealed "massive swelling of the facial areas extending into both temples in the top of his head." (Id. at 161.) His eyes were swollen shut and could not be opened or examined. (See id. at 161, 180.) There were also a number of lacerations about the plaintiff's face and head, including "a major laceration involving the superior portion of the left helix," and scrapes and bruises around the plaintiff's shoulders, upper arms, chest, and back. (Id. at 161.) A pattern of contusions around the plaintiff's neck suggested ligature. (See id. at 191, 193.) Records indicate that an "[i]nitial CT scan demonstrated occipital linear right skull fracture with no hemorrhage or significant edema. . . ." (Id. at 162;see also id. at 195.) Images obtained on the following day showed various hemorrhages and evidence of "rather diffuse brain swelling." (Id. at 162; see also id. at 233.) Further radiographic studies indicated "minimal fracture to both nasal bones," and a right rib fracture. (Id. at 162.) The plaintiff was placed on mechanical ventilation, (see id. at 181), and a pressure monitor was placed in the plaintiff's skull to detect increases in intracranial pressure, (see id. at 184). His condition and prognosis were described as poor. (See id. at 194.)
Here, the term "helix" refers to the plaintiff's external ear.See Stedman's Medical Dictionary 170, 794 (27th ed. 2000) (defining "auricle" and "helix"). The plaintiff's left ear was described as "nearly amputated." (Tr. at 193.)
Radiological studies performed on August 27, 1999, indicated overall improvement with respect to extracranial swelling and intracranial hemorrhaging, but also showed sinus mucosal thickening and fluid in both middle ears. (See Tr. at 216-17.) On August 31, 1999, the plaintiff underwent plastic surgery to repair his left ear. (See id. at 166-67.)
On September 8, 1999, the plaintiff was transferred to the Black Hills Rehabilitation Hospital. (See Tr. at 282.) A record from that date states that the plaintiff's "hospital course was notable for progressive acute renal failure with azotemia, rhabdomyolysis, as well as degree of oliguria. . . ." (Tr. at 162, 286; see also id. at 177-79.) Although the plaintiff experienced a urinary tract infection, (see id. at 162, 287), his "acute renal insufficiently" improved by the date of the record, (id. at 163, 287). Also, by September 8, 1999, the plaintiff had been making gains in physical and occupational therapy. (See Tr. at 163, 287.) However, he required cueing to perform certain functions, there were "omissions" in his efforts, and his mobility was limited by "balance difficulties" and the need for assistance to stand and walk. (Id.) He was described as having a "fairly severe cognitive impairment still at this point." (Id. at 164, 288.) The plaintiff was unable to state his birthday or the current year, month, or day. (See id.)
Azotemia is "[a]n abnormal increase in concentration of urea and other nitrogenous substances in the blood plasma." Stedman's Medical Dictionary 178 (27th ed. 2000). Rhabdomyolysis is "[a]n acute, fulminating, potentially fatal disease of skeletal muscle that entails destruction of muscle. . . ." Id. at 1564. Oliguria is "[s]canty urine production." Id. at 1258.
A progress note dated September 14, 1999, summarized a neuropsychological evaluation of the plaintiff. (See Tr. at 293.) It was noted that the plaintiff's overall cognitive functioning was below average, and that his "receptive, expressive, and secondary language abilities [were] mildly impaired." (Id.) Severe impairments to the plaintiff's memory and ability to learn were observed, along with moderate impairments to the plaintiff's "delayed visual complex memory," "visual spacial constructive abilities, spacial perception and orientation." (See id.) "[A]ccess to semantic memory, conceptual tracking, shift of set, nonverbal problem solving, organizing mental info., making judgments, learning from experience while adaptively integrating new info. was [sic] severely impaired." (Id.) The results of this evaluation were consistent with moderate traumatic brain injury. (See id. at 283.) The note concluded with the observation that the plaintiff would need "continued supportive care after discharge." (Id. at 294.)
The plaintiff was discharged from the Black Hills Rehabilitation Hospital on September 29, 1999. (See Tr. at 282.) The plaintiff performed well in physical therapy and made progress in his endurance, gait, balance, and "route finding." (See id. at 285, 295-300, 303.) Similarly, the plaintiff made progress in occupational therapy, demonstrating skills in various activities including balancing a checking account, using directions to find a location on a map, and finding listings in a telephone directory, though he needed cues to complete some tasks. (See id. at 304-06.) It was felt that the plaintiff could be discharged with no further need for occupational therapy, though he would need some assistance from family. (See id. at 284.) The plaintiff's neuropsychological evaluation at discharge indicated that his "receptive, expressive, and secondary language abilities were felt to be commensurate with his premorbid levels." In addition,
"Premorbid" refers to the time period preceding the plaintiff's injury. See Stedman's Medical Dictionary 1439 (27th ed. 2000).
His delayed recall of verbal information remained mildly impaired. His visual spatial constructive abilities were reported as intact at follow up. In terms of executive functioning processing, this demonstrated significant improvement. He still had significant intact findings. He did have mild impairment remaining in conceptual tracking and shift of set. His psychomotor and processing speeds remained mildly impaired. It was felt that emotionally that he may be easily distracted and may report concentration and memory problems with difficulties related to this. Overall, his impression was that of neuropsychological processes being mostly intact with the areas of remaining concern being mild impairment in delayed recall of memory, of previously learned information, and in cognitive processing speed. It was felt that he was cognitively appropriate to return to work with support and supervision initially, as well as being able to live independently and make his own decisions without significant need for follow up as per report.
(Tr. at 283-84.) The plaintiff and his family were instructed that the plaintiff must avoid driving and alcohol, use glasses to compensate for a vision problem, and have daily supervision. (See id. at 285.)
On October 4, 1999, the plaintiff appeared at the clinic in Martin, South Dakota, complaining of a "chest cold, coughing, and wheezing." (Tr. at 330.) These complaints arose after the plaintiff had been out hunting with a group of others, which marked the first time since his injury that he had been "out and about." (Id.) The plaintiff was diagnosed with "asthma/reactive airway," treated with inhalers, and released with instructions to return immediately if there were any "problems or concerns." (Id.) On October 8, 1999, the plaintiff returned to the clinic. (See id.) It was found that the noises associated with the plaintiff's breathing had increased, and the plaintiff was referred to a pulmonologist for further evaluation. (See id.) On or about October 13, 1999, the plaintiff was examined by a Dr. Chang and found to have approximately 70% tracheal stenosis. (See id. at 335, 343-44.) The plaintiff was transferred to the Mayo Clinic for further treatment. (See id. at 336.)
"Stenosis" refers to a "stricture of any canal or orifice."See Stedman's Medical Dictionary 1695 (27th ed. 2000).
On October 14, 1999, at the Mayo Clinic, an unsuccessful attempt was made to dilate the stenosis. (See Tr. at 364.) On October 20, 1999, the plaintiff underwent a surgical procedure which resulted in the removal of approximately 4 centimeters of his trachea. (See id.) This surgery was successful, and the plaintiff was discharged with instructions to return on November 1, 1999, for a bronchoscopy and for the removal of a stitch between his chin and chest, which was designed to keep his head in a flexed position. (See id.) A record dated November 1, 1999, indicates that the plaintiff's results were excellent. (See id. at 369.)
On November 10, 1999, the plaintiff participated in his "first postoperative neurosurgical check" with a Dr. Ganz. (Tr. at 339.) According to the record, the plaintiff was "living at home and living independently" at the time of the checkup. (Id.) The plaintiff's aunt reported that the plaintiff's memory was "back to normal with the exception of the events surrounding the time of his assault and the subsequent acute hospitalization [concerning the plaintiff's trachea]." (Id.) The aunt also reported that the plaintiff "is able to remember new information and has no significant neurologic or cognitive deficits that she or her family is aware of." (Id.) The neurological exam was normal, and Dr Ganz stated,
Mr. Young has made a terrific recovery from a severe closed head injury sustained in August of 1999. He has finished his outpatient physical therapy and wants to return to work. From my point of view it is OK for him to return to work as a body shop employee but I have recommended he go back half days for one month and after that full days as he is able to tolerate. I have recommended that he be supervised when using heavy equipment until Mr. Young and his supervisor are convinced he is safe to use this heavy machinery again. He certainly does not demonstrate any deficits on examination today, which would prohibit him from returning to body shop work.
(Tr. at 340.)
On November 11, 1999, the plaintiff visited a Dr. Mills at Black Hills Neurology. (See Tr. at 338.) The plaintiff was diagnosed with anosmia and a sensory loss was noted at the vertex of the plaintiff's skull. (See id.) The plaintiff also reported pain in his left thigh, but denied any vision difficulties. (See id.) Dr. Mills stated that the plaintiff had done well at home and conversed with the plaintiff about returning to work on a part-time, trial basis. (See id.)
"Anosmia" refers to a "[l]oss or absence of the sense of smell."See Stedman's Medical Dictionary 92 (27th ed. 2000).
The plaintiff underwent a psychological evaluation on December 20, 1999, pursuant to a referral from Disability Determination Services. (See Tr. at 348.) As a part of this evaluation, the Wechsler Adult Intelligence Scale-III and Wechsler Memory Scale-Revised were administered to the plaintiff, and a "functional interview" was performed. (See id.) The examining psychologist observed that the plaintiff demonstrated no inappropriate behaviors and no inadequacies in his mental processes during the evaluation. (See id.) With respect to the Wechsler Adult Intelligence test, the examiner concluded as follows.
Mr. Young received a Verbal I.Q of 83, a Performance I.Q. of 104, and a Full Scale I.Q. of 91 which places him in the average range of intellectual functioning. Note, however, a 21-point spread between Verbal and Performance I.Q. A spread of this type usually indicates a need for some kind of interpretation. One, of course, would need to consider the dramatic effects of a brain injury; however, recall that we have a gentleman here who had only a ninth grade education in the first place. Also noted in the information from Rapid City Regional Hospital which did testing after the incident which indicated a verbal memory of 81, a visual memory of 105, and a Full Scale I.Q. of 91 which is almost exactly the same as the testing done today. . . . In the performance skill measures, however, the two major abilities (Perceptual Organization [I.Q. Index 99] and Processing Speed [I.Q. Index 84]) show a 15-point spread which indicates that there is abnormal scatter and that these two areas are not equally well-developed. Indications are that Bradley demonstrates an ability to integrate visual stimuli, reasoning nonverbally, and to apply eye/hand coordination and visual motor skills to solve the kinds of problems that are not school-taught.
According to the record, the Wechsler Adult Intelligence Scale-III, or WAIS-III, was, at the time of the evaluation, "the newest edition of the intelligence test, based upon a broad survey of cognitive and perceptive functions within the adult population." (Tr. at 349.)
(See Tr. at 291.)
(Tr. at 350.) With respect to the Wechsler Memory test, the examiner concluded that the plaintiff did not seem to be "suffering from any amount of general memory loss," and although some of the "index scores" fell slightly below the average range, the plaintiff was found to be "functioning quite adequately" given his "background and traumatic brain injury." (Id. at 351.) Overall, the examiner concluded that the plaintiff fell within the average range of intellectual abilities, had "no dysfunction in general memory," and was "not affected by his present illness or its process." (Id.) Though the examiner noted that diagnosis was difficult, he stated that the plaintiff's "major problem at this time is occupational." (Id.)
This "occupational problem" was described at the hearing before the ALJ as a "condition or situation that maybe [sic] the focus of clinical attention, but they're not recognizable kind[s] of disorders." (Tr. at 36.)
On April 25, 2000, Dr. Ganz completed a form entitled "Attending Physician's Statement of Disability." (Tr. at 392.) On this form, Dr. Ganz indicated that the plaintiff became unable to work on August 21, 1999, that the plaintiff had not been released to return to work or to light duty work, and that the plaintiff's approximate return to work date would be six to twelve months in the future. (See id.)
On May 18, 2000, the plaintiff was referred to physical therapy by Dr. Ganz. (See Tr. at 398-99.) Specifically, the plaintiff complained of lower back pain which worsened after he tried to lift his son. (See id. at 399.) The plaintiff participated in physical therapy until June 9, 2000, when it was determined that he had "achieved all long-term goals up to this point." (Id. at 393;see also id. at 394-97, 399.)
At the hearing before the ALJ on November 29, 2000, expert medical testimony was provided by James Simpson, a certified clinic and mental health counselor. (See Tr. at 35.) Simpson testified that the record did not reveal any psychological diagnosis. (See id. at 36.) He stated that "there had been neurological work ups, but not neurological testing." (Id.) He did not feel that all of the appropriate testing had been done, and that a neurological assessment such as the "Allsted Raton" would provide insight into the specific problems associated with the plaintiff's brain injury. (See id. at 38-39.) He also stated that it "would be unlikely" that damage to the plaintiff's brain would manifest itself after the passage of time. (See id. at 38.)
The plaintiff submits that the instrument referred to here is actually the "Halstead-Reitan" test battery. (See Pl.'s Br. at 11, 16 n. 28.)
The plaintiff also testified at the hearing. (See Tr. at 39.) He stated that after his injury he tried working as a waiter and dishwasher. (See id. at 40.) However, due to memory and balance problems, he remained in this position for only one week. (See id. at 40-41.) The plaintiff described vision problems and headaches that prevent him from reading and driving, and his vision also affects his ability to use stairs. (See id. at 41-43, 45-46, 49.) He stated that he has problems with back pain, (see id. at 44-45, 47), and that his head swells every morning, (id. at 47). The plaintiff also testified that sometimes he has problems gripping things. (See id. at 50.) Although he cleans the dishes at home, he does not cook because he once left food burning on the stove. (See id. at 51.) The plaintiff also stated that although he can physically sweep the floor or mow the yard, he forgets to cover the entire surface, leaving dirt everywhere or patches of unmowed grass. (See id. at 51, 55.) He does not take care of bills at the house, run errands, or care for his son without help from another person. (See id. at 52.) He is able to shower, bathe, and dress himself without help. (See id. at 53.)
At the conclusion of the hearing, the ALJ indicated that he planned to ask the government to provide neuropsychological and ophthalmological tests. (See Tr. at 56.) On January 16, 2001, the plaintiff attended an eye examination. (See id. at 405.) The examination was "good," and the only plan indicated was "reassurance" and "follow-up as needed." On or about January 17, 2001, the plaintiff participated in a psychological evaluation with a Dr. Scharf. (See id. at 406.) As a part of this evaluation, the plaintiff was administered the Wechsler Memory Scale-III edition. (See id. at 407.) Dr. Scharf noted repeatedly that the plaintiff's performance on this test was lower than his performance on the Wechsler Memory Scale-Revised in December 1999. (See id. at 407, 408, 410.) Dr. Scharf stated,
Again it is unusual for an individual to show a decline on memory testing without an intervening traumatic event. He did show better performance on the memory testing completed in December of 1999. Given that this testing occurred approximately four months after the assault, one would assume that his memory testing would be worse on the first testing than on the most recent testing. This suggests that the claimant may not have put forth his best effort or psychological factors are impairing his memory.
(Tr. at 408.) Dr. Scharf stated that it appeared that the plaintiff gave his best effort on the recent test. (See id. at 407.) Dr. Scharf also stated, "There is the possibility that his difficulties with the assault psychologically are impairing his cognitive functioning." (Id. at 408.) Specifically, he opined that the plaintiff was suffering from dementia due to head injury, characterized by memory deficits and balance impairment. (See id.) He also opined that "there is a good likelihood that the claimant suffers from a post-traumatic stress disorder," characterized by such problems as nightmares, fearfulness of certain individuals that he does not know, and avoidance of the area where the assault occurred. (See id.) The plaintiff's prognosis was described as "poor to fair." (Id. at 409.) Dr. Scharf suggested that the plaintiff "probably has the cognitive abilities to return to work," but only if he receives psychological and psychiatric treatment, cognitive rehabilitation, and "extensive prompting to return to work." (Id.)
IV. ANALYSIS
A. Whether the ALJ's Finding that the Plaintiff Was Disabled as of January 17, 2001, as Opposed to August 21, 1999, Was Supported by Substantial Evidence
The plaintiff takes issue with the ALJ's conclusion that the plaintiff was disabled as of January 17, 2001, which was the date of Dr. Scharf's examination, and argues that the plaintiff should have been found disabled as of August 21, 1999, when he suffered his head injuries. Alternately, the plaintiff argues that the ALJ was required to obtain evidence from a medical advisor to infer the date of onset of the plaintiff's disability.
In support of his argument that the onset date should be August 21, 1999, the plaintiff argues that the 1999 memory tests were based upon an "obsolete" version of the Wechsler Memory Scale. (Pl.'s Br. at 16.) He suggests that the differences in the tests provide "a sensible explanation for the 10-point discrepancy between scores" cited repeatedly by Dr. Scharf. (Pl.'s Br. at 16-17.) While this argument is not without logical appeal, it is founded upon an assumption that the plaintiff's memory scores would have been lower in 1999 if the newer version of the Wechsler test had been used. The evidence does not support this assumption. On the contrary, I find that there is substantial evidence-including neuropsychological assessments, the opinions of treating physicians, and a statement from the plaintiff's relative — that supports the ALJ's finding that the plaintiff's memory was not impaired for twelve continuous months beginning on August 21, 1999. In fact, it is quite clear that by November 1999, the plaintiff was "back to normal" and able to begin a return to work.
Relatedly, the plaintiff demands that I instruct the ALJ to order the use of the Halstead-Reitan test to assess his brain injuries. (See Pl.'s Br. at 19.) As I am not convinced that the tests administered to the plaintiff were inadequate, the plaintiff's demand will be rejected.
Although Dr. Ganz completed a form on April 25, 2000, indicating that the plaintiff was unable to work as of August 21, 1999, this opinion is clearly contrary to the medical records — including Dr. Ganz's own statements of November 10, 1999. Under the circumstances, I find that the April 25, 2000, record does not detract from the ALJ's conclusion that the plaintiff was not disabled as of August 21, 1999.
In addition, I note that Dr. Scharf did not cite differences between the tests to explain the discrepancy in the plaintiff's memory scores, although he was aware that a different test was used in 1999. (See Tr. at 407.) Instead, Dr. Scharf cited two possible reasons why the plaintiff's scores might have deteriorated: either the plaintiff did not give his best effort on the recent test, or "psychological factors are impairing his memory." (Id. at 408.) As I noted in my summary of the plaintiff's medical history, Dr. Scharf rejected the first of these alternatives and concluded that dementia due to the plaintiff's injury and psychological difficulties were impairing the plaintiff's cognitive functioning. This evidence is consistent with the ALJ's conclusion that the plaintiff's memory improved after the injury, but then deteriorated by the time of Dr. Scharf's evaluation. (See Tr. at 24.)
The plaintiff correctly points out that both Simpson and Scharf opined that it would be unusual for the plaintiff's condition to worsen over time, at least in the absence of a new injury. However, I am not persuaded that Scharf's explanation based upon "psychological factors" cannot constitute substantial evidence in support of a finding that the plaintiff's condition deteriorated sometime after his recovery had peaked.
Finally, the plaintiff argued that he should be deemed disabled as of August 21, 1999, because the listing criteria for "organic mental disorders" had been met since the time of his injury. As I noted above, at step three of the sequential analysis to determine disability, the ALJ must compare the plaintiff's impairment to a list of predetermined "disabling" impairments. See 20 C.F.R. § 404.1520(d);id. § 416.920(d). If the plaintiff has an impairment that is listed or is equal to a listed impairment, the analysis ends and the claimant is found to be "disabled." See id. The listing's diagnostic category for organic mental disorders states,
12.02 Organic Mental Disorders: Psychological or behavioral abnormalities associated with a dysfunction of the brain. History and physical examination or laboratory tests demonstrate the presence of a specific organic factor judged to be etiologically related to the abnormal mental state and loss of previously acquired functional abilities.
The required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in C are satisfied.
A. Demonstration of a loss of specific cognitive abilities or affective changes and the medically documented persistence of at least one of the following:
1. Disorientation to time and place; or
2. Memory impairment, either short-term (inability to learn new information), intermediate, or long-term (inability to remember information that was known sometime in the past); or
3. Perceptual or thinking disturbances (e.g., hallucinations, delusions); or
4. Change in personality; or
5. Disturbance in mood; or
6. Emotional lability (e.g., explosive temper outbursts, sudden crying, etc.) and impairment in impulse control; or
7. Loss of measured intellectual ability of at least 15 I.Q. points from premorbid levels or overall impairment index clearly within the severely impaired range on neuropsychological testing, e.g., the Luria-Nebraska, Halstead-Reitan, etc.;
AND
B. Resulting in 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;
Or
C. Medically documented history of a chronic organic mental disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or
3. Current history of 1 or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.02. The ALJ concluded that these criteria were not satisfied as of August 21, 1999, because 1) the medical evidence prior to January 17, 2001, "does not support a condition which remained disabling for 12 continuous months," (Tr. at 23); and 2) the Scharf evaluation "confirms" that the plaintiff's condition deteriorated to a level of severity that satisfied the listing on January 17, 2001, (id. at 24). This conclusion is supported by substantial evidence. Although the "specific organic factor judged to be etiologically related to the abnormal mental state and loss of previously acquired functional abilities" was the plaintiff's brain injury on August 21, 1999, substantial evidence supports the finding that the listing criteria were not satisfied during the plaintiff's recovery. Instead, they were satisfied at a later time, after the plaintiff's condition deteriorated.
Although I have concluded that substantial evidence supports the ALJ's decision that the plaintiff's impairment did not meet listing level severity as of August 21, 1999, the plaintiff's alternate argument remains to be considered. I must determine whether the ALJ's conclusion that the plaintiff was not disabled prior to January 17, 2001, was consistent with Social Security Rulings and the Eighth Circuit's holding in Grebenick v. Chater, 121 F.3d 1193 (8th Cir. 1997).
Social Security Rulings (SSRs) are binding upon the Social Security Administration. See 20 C.F.R. § 402.35(b)(1). SSR 83-20, which emphasizes the importance of establishing the disability onset date, states, "For disabilities of traumatic origin, onset is the day of the injury if the individual is thereafter expected to die as a result or is expected to be unable to engage in substantial gainful activity . . . for a continuous period of at least 12 months." In the instant case, the plaintiff's organic mental disorder had a traumatic origin; nevertheless, the ALJ determined that the onset date was not the date of injury because the plaintiff was able to engage in substantial gainful activity after sustaining his injury, and I have found that this determination is supported by substantial evidence. It seems to me that the "traumatic origin" section of SSR 83-20 does not provide useful guidance in this case.
SSR 83-20 also includes instructions for determining the onset date when a disability has a "nontraumatic" origin. However, I cannot conclude that the origin of the plaintiff's impairment was nontraumatic. It clearly was not so. Therefore, this section of SSR 83-20 is not helpful.
A third section of SSR 83-20 is instructive in this case. This section is entitled "Precise Evidence Not Available — Need for Inferences." SSR 83-20. It states,
In some cases, it may be possible, based on the medical evidence to reasonably infer that the onset of a disabling impairment . . . occurred some time prior to the date of the first recorded medical examination, e.g., the date the claimant stopped working. How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgement, however, must have a legitimate medical basis. At the hearing, the [ALJ] should call on the services of a medical advisor when onset must be inferred. . . .
If reasonable inferences about the progression of the impairment cannot be made on the basis of the evidence in file and additional relevant medical evidence is not available, it may be necessary to explore other sources of documentation. Information may be obtained from family members, friends, and former employers . . . to furnish additional evidence regarding the course of the individual's condition. . . . The impact of lay evidence on the decision of onset will be limited to the degree it is not contrary to the medical evidence of record. . . .
The available medical evidence should be considered in view of the nature of the impairment (i.e., what medical presumptions can reasonably be made about the course of the condition). The onset date should be set on the date when it is most reasonable to conclude from the evidence that the impairment was sufficiently severe to prevent the individual from engaging in [gainful activity] for a continuous period of at least 12 months. . . . Convincing rationale must be given for the date selected.
In Grebenick v. Chater, 121 F.3d 1193, 1200-01 (8th Cir. 1997), the Eighth Circuit quoted a large portion of this language and stated that when the medical evidence of onset is ambiguous, an ALJ is required to call upon a medical advisor to ensure that the onset date is based upon a "legitimate medical basis."
Here the ALJ stated that the plaintiff's "psychological functioning deteriorated since his assault, and as of January 17, 2001, there is evidence that his organic mental disorder had reached a level of severity to meet the criteria for Listing 12.02." (Tr. at 24.) While I accept the ALJ's conclusion that disability was established by the testing on January 17, 2001, the "deteriorating" nature of the plaintiff's impairment raises an ambiguity concerning the onset date. This ambiguity cannot be resolved by the medical evidence currently in the file, because there is no evidence concerning the plaintiff's psychological functioning between December 20, 1999, and January 17, 2001. Despite the ambiguity generated by the nature of the plaintiff's impairment and the absence of relevant information in the record, the ALJ made no inquiry to determine "[h]ow long the [plaintiff's impairment] may . . . have existed at a disabling level of severity." SSR 83-20. This was improper. Under these circumstances, the ALJ was required to call upon the assistance of a medical advisor to help him infer an onset date with a legitimate medical basis. If the medical advisor were unable to offer evidence concerning the progression of the plaintiff's impairment to listing level severity, the ALJ could have then sought additional lay evidence to attempt to document this progression and infer the onset date. See SSR 83-20.
To be precise, there is a "mental assessment" dated January 14, 2000, which "showed only slight limitations in functioning due to the residuals of the head injury," and which was relied upon by the ALJ. (Tr. at 22; see also id. at 352-60.) However, it is not clear whether this assessment was based upon a records review or an examination of the plaintiff. At a minimum, it appears that the assessment relies heavily upon the "current" testing of December 1999. (Id. at 353.)
I am mindful of the fact that the ALJ's determination that onset occurred on January 17, 2001, is, in a sense, supported by a "legitimate medical basis," because Dr. Scharf's testing occurred on this date. Nevertheless, I agree with the plaintiff that the ALJ failed to make an informed judgment concerning onset. Given the absence of psychological evidence in the record for approximately one year prior to Dr. Scharf's evaluation and the ALJ's finding that the plaintiff's psychological condition deteriorated during that time, the ALJ was not free to rely solely upon the absence of evidence preceding the Scharf evaluation to support his onset determination. Instead, he was required to consult a medical advisor to determine the date when it is most reasonable to conclude that the plaintiff's impairment was sufficiently severe to prevent him from working for a continuous period of at least twelve months. See SSR 83-20; Grebenick v. Chater, 121 F.3d 1193, 1200-01 (8th Cir. 1997). January 17, 2001, is merely thelatest date when onset may be inferred, and it is possible to infer reasonably that onset occurred sometime during the previous year. I appreciate that the pinpointing of the onset date is extremely difficult under these circumstances. However, under Ruling 83-20 it is the Commissioner's burden to provide a "legitimate medical basis" and a "convincing rationale" for the date selected. This was not done here, as no inquiry was made concerning the course of the plaintiff's deterioration.
In sum, I conclude that the Commissioner's decision is supported by substantial evidence insofar as it rejects the plaintiff's claim that the disability onset date was August 21, 1999. However, even though I agree that onset did not occur on August 21, 1999, the Commissioner failed to follow SSR 83-20 when determining that the plaintiff's disability began on January 17, 2001. For that reason, this case must be remanded for further proceedings.
B. Whether the ALJ's Formulation of the Plaintiff's Residual Functional Capacity for the Period Predating January 2001 Was Supported by Substantial Evidence
A claimant's residual functional capacity (RFC) refers to "the most [he] can do despite [his] limitations." 20 C.F.R. § 404.1545(a)(1);id. § 416.945. All relevant evidence is used to assess a claimant's RFC. See id. The residual functional capacity assessment is used at the fourth step of the sequential evaluation process to determine if the claimant can return to his past relevant work, and at the fifth step (if this step is reached) to determine if the plaintiff can adjust to other work. See 20 C.F.R. § 404.1520(e);id. § 416.920(e).
In this case, the ALJ concluded that prior to the date when the plaintiff's impairment reached listing level severity, the plaintiff retained the RFC to return to his past work as an auto body repairman, mechanic's helper, and general laborer. (See Tr. at 24.) Specifically, the ALJ stated, "Based on the opinions of the treating physicians, it is concluded that the claimant has the residual functional capacity to perform medium work which requires lifting and carrying 25 pounds frequently and 50 pounds on occasion; sitting, standing, and walking for 6 hours each; occasional climbing; and avoiding vibrations and hazards." (Id. at 23.) Thus, the plaintiff was found not to be disabled at step four of the sequential evaluation process.
The plaintiff objects to the ALJ's formulation of his RFC because "[t]he ALJ found residual functional capacity for medium work without any mental limitations," and the ALJ did not include any cognitive deficits in his formulation of RFC. (Pl.'s Br. at 21.) However, I find that the ALJ's RFC determination was supported by substantial evidence. Specifically, there is evidence that prior to the deterioration of the plaintiff's condition, (see supra Part IV.A), the plaintiff's memory was back to normal, his intellectual abilities were average, he was living independently, and he demonstrated no neurological deficits. (See, e.g., Tr. at 338-40, 348-51.) Thus, the ALJ's decision to omit cognitive impairments from his RFC assessment was proper. However, it should be noted that the RFC assessment may be affected by the Commissioner's efforts to establish the proper onset date on remand. (See supra Part IV.A.)
IT IS ORDERED that the Commissioner of Social Security's decision is reversed in part, and the case is remanded to the Commissioner for further proceedings consistent with the memorandum accompanying this order.