Opinion
Case No. CV 00-73-S-LMB
March 26, 2001
MEMORANDUM DECISION AND ORDER
Currently pending before the Court is Petitioner Geoffrey L. Pruett's Petition for Review (Docket No. I) which was filed pursuant to 42 U.S.C. § 405 (g) and 1383(c)(3) seeking review of the final decision of Respondent denying his claim for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401-433, 1381-1383d. The parties submitted the action on the record.
Having carefully reviewed the record, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order.
I ADMINISTRATIVE PROCEEDINGS
Petitioner Pruett applied for disability insurance benefits and supplemental security income on January 8, 1997. (Tr. 159). His claims were denied both initially and upon reconsideration. (Tr. 141-50). Thereafter, Petitioner requested a hearing before an Administrative Law Judge (AU), which took place on April 22, 1998. (Tr. 93-137). Petitioner, Petitioner's mother, Laura Montgomery, and a medical expert, Dr. Thomas Atkin, testified at the hearing. (Tr. 93).
On June 25, 1998, the ALJ issued his decision finding that, although the objective medical evidence establishes that Petitioner suffers from a "severe impairment" of bipolar disorder, this impairment, either independently or in combination with any other impairment, did not meet or functionally equal the listing of impairments in Appendix 1, Part A, Subpart P, Regulations No. 4. (Tr. 85-86).
The Appeals Council declined Petitioner's request for review on February 17, 2000, and thereby vacated its December 2, 1999 decision to consider additional evidence and further argument. The Appeals Council stated that the additional evidence was dated after the hearing with the ALJ, and therefore, they were precluded from considering it. The Appeals Council's denial of Petitioner's request for review made the ALJ's decision the final decision of the Commissioner. (Tr. 4-5); 20 C.F.R. § 404.981, 416.1481 (1999).
II. BACKGROUND
At the time of the April 22, 1998 hearing, Petitioner was fourteen (14) years old and in the ninth grade. (Tr. 98). At the time of the hearing, he was living with his father in Nampa, Idaho. ( Id..) Petitioner's mother testified that Petitioner was in a structured school program called the Enterprise Program in the Nampa School District. (Tr. 113). Petitioner alleges disability since January 8, 1997, due to bipolar disorder. (Tr. 80).
III. STANDARD OF REVIEW
The burden of proof rests upon Petitioner to establish entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971). In evaluating the evidence at an administrative hearing, the ALJ must follow a five-part, sequential process. 20 C.F.R. § 404.1520, 416.920. The second part of that process involves a finding regarding whether or not the claimant has a "severe impairment" "which makes [claimant] unable to do his previous work or any other substantial gainful activity which exists in the national economy." 20 C.F.R. § 416.905 (a). If no "severe" impairment is found, the claimant will be found not to be disabled. 20 C.F.R. § 404.1520 (c), 416.920(c).
The standard of review is whether the decision of the Commissioner is supported by substantial evidence and is based on proper legal standards. 42 U.S.C. § 405 (g); Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990). Findings of the ALJ as to any fact, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405 (g); Vidal v. Harris, 637 F.2d 710 (9th Cir. 1981). In other words, if there is substantial evidence to support the decision of the ALJ, the decision must be upheld even when there is conflicting evidence. Hall v. Secretai'y of Health, Education and Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).
Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Flaten v. Secreta, of Health Human Serv., 44 F.3d 1453 (9th Cir. 1995); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cit. 1993). The standard requires more than a scintilla but less than a preponderance, Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cit. 1989); Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cit. 1975), and "does not mean a large or considerable amount of evidence." Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550 (1988).
With respect to questions of fact, the Court's role is to review the record as a whole to determine whether it contains evidence that would allow a reasonable mind to accept the conclusion of the ALJ. Richardson, 402 U.S. at 401. The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, Alien v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984), resolving ambiguities, Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394 (9th Cir. 1984), and drawing inferences logically flowing from the evidence. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Where the evidence is susceptible to more than one rational interpretation in a disability proceeding, the reviewing court may not substitute its judgment or interpretation of the record for that of the ALJ. Flaten, 44 F.3d at 1457; Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).
With respect to questions of law, the ALJ's decision must be based on proper legal standards and will be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ's construction of the Social Security Act is entitled to deference if it has a reasonable basis in law. However, reviewing federal courts "will not rubber-stamp an administrative decision that is inconsistent with the statutory mandate or that frustrates the congressional purpose underlying the statute." Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cit. 1987). Reviewing federal courts must bear in mind that the Social Security Act is remedial in nature and should be construed liberally and "not so as to withhold benefits in marginal cases." Id.. at 1095.
The issue presented in the instant appeal is whether the ALJ's finding that Petitioner is not disabled is supported by substantial evidence and whether it is based on application of proper legal standards.
IV. DISCUSSION
In evaluating the evidence presented at an administrative hearing, the ALJ must follow a five-part, sequential process in determining whether a person is disabled within the meaning of the Social Security Act. 20 C.F.R. § 404.1520, 416.920.
(A) Step One
The first step requires the ALJ to determine whether the claimant is engaged in substantial gainful activity. If the answer is in the affirmative, disability benefits are denied. 20 C.F.R. § 404.1520 (b). In the instant action, the ALJ found that Petitioner has not performed substantial gainful activity since his disability onset date of January 8, 1997. (Tr. 20, 25). The ALJ's conclusion in this respect is not in dispute.
(B) Step Two
The second step requires the ALJ to determine whether the claimant has a medically severe impairment or combination of impairments. 20 C.F.R. § 404.1520 (c). The ALJ found that Petitioner suffers from a "severe" impairment, specifically bipolar disorder. (Tr. 85). The ALJ'S conclusion in this respect is not in dispute.
(C) Step Three
The third step in the evaluation process requires the ALJ to determine whether the claimant's impairments meet or equal a listed impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. § 404.1520 (d). Petitioner contends that his impairment is severe enough to meet or equal Uisting 112.04. Petitioner notes that Dr. Atkin, the medical expert, stated that Petitioner's impairments do equal the listing when his symptoms are examined when he is not medicated. Further. Petitioner contends that his failure to take medication should be excused because of his inability to pay. In this respect, the ALJ concluded that, when medicated, Petitioner's impairments neither singly nor in combination, meet or equal a listed impairment. (Tr. 81). The ALJ also concluded that Petitioner's failure to follow prescribed treatment to take medication is not excused. (Tr. 83).
It is well-settled that a person should not be denied disability benefits for failure to follow prescribed treatment if the individual is unable to afford the treatment prescribed. "Disability benefits may not be denied because of the claimant's failure to obtain treatment he cannot obtain for lack of funds." Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995). The Ninth Circuit further stated:
Although progress has been made in providing affordable medical care to the needy and elderly . . ., many Americans are without the means or the opportunity to obtain necessary medical care. Social Security disability and SSI benefits exist to give financial assistance to disabled persons because they are without the ability to sustain themselves. It flies in the face of the patent purposes of the Social Security Act to deny benefits to someone because he is too poor to obtain medical treatment that may help him.Id.. at 322 (quoting Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984)).
Social Security Ruling (SSR) 82-59 provides that the inability to pay for prescribed
treatment is a justifiable reason for not following prescribed treatment. SSR 82-59 also provides, however, that documentation of a claimant's financial conditions and efforts to obtain free or subsidized treatment must be presented before the claimant's inability to pay will be deemed justifiable. See Gordon, 725 F.2d at 237. SSR 82-59 provides in pertinent part that "[a]ll possible resources (e.g., clinics, charitable and public assistance agencies, etc.), must be explored. Contacts with such resources and the claimant's financial circumstances must be documented."
In the instant action, a review of the record reveals that Petitioner failed to provide any documentation of his parents' financial condition or his efforts, if any, to gain other means to obtain the medication. He relied solely on his testimony, and that of his mother, that his parents could not afford the medication prescribed. (Tr. 107; 113-14). However, SSR 82-59 also states that, before an individual is found to have unjustifiably failed to follow a prescribed treatment, he or she should be allowed an opportunity to demonstrate just cause for not following the prescribed treatment. In Wyrick v. Apfel, 29 F. Supp.2d 693 (M.D.N.C. 1998), the District Court stated as follows:
Essentially, the ruling [SSR 82-59] stresses that a claimant should be made aware, before a determination is made, that the Social Security Administration believes he does not have a good reason for failing to follow prescribed treatment and the likely effect on benefits. The claimant must be afforded an opportunity to undergo the treatment or show justifiable cause for failing to do so.Id.. at 698.
The record, in the instant action, does not disclose that Petitioner had an opportunity to show good cause for his failure to take medication as prescribed. The ALJ discounted Petitioner's claim of inability to pay for three reasons: (1) Petitioner's parents made a decision to have him live with his father (so that he could attend the Enterprise Program), which leaves Petitioner without medicaid benefits; (2) Petitioner's mother has means independent of medicaid to purchase medication; and (3) Petitioner has not pursued other potential resources, which may subsidize the cost of medication or supply the medication for free. (Tr. 82-83).
Before the administrative determination was made, Petitioner should have been given the opportunity to justify the parents' decision that Petitioner should live with his father, document the Petitioner's parents' financial conditions and any efforts to obtain subsidized or free medication. The Court concludes that the ALJ erred by not affording Petitioner an opportunity to justify his failing to obtain medication, and therefore, remands this case to allow Petitioner such an opportunity.
(D) Step Four
The fourth step of the evaluation process requires the ALJ to determine whether the claimant's impairments are functionally equivalent in severity to a listed impairment. 20 C.F.R. § 416.926a(a). Functional equivalence will be found when there is an extreme limitation in one area or a marked limitation in at least two areas. An "extreme" limitation is defined as "no meaningful functioning in a given area," and "marked" limitation is defined as "more than moderate and less than extreme." 20 C.F.R. § 416.926a(c)(3)(C).
The ALJ found that Petitioner has a marked impairment of social functioning, but found that Petitioner has less than marked impairments in the other categories. (Tr. 83). Petitioner contends that he has a marked impairment of cognitive/communicative functioning, in addition to a marked impairment of social functioning. Cognitive! Communicative functioning is defined as follows:
(i) Cognition/communication: The ability or inability to learn, understand, and solve problems through intuition, perception, verbal and nonverbal reasoning, and the application of acquired knowledge; the ability to retain and recall information, images, events, and procedures during the process of thinking. The ability or inability to comprehend and produce language (e.g., vocabulary and grammar) in order to communicate (e.g., to respond, as in answering questions, following directions, acknowledging the comments of others; to request, as in demanding action, meeting needs, seeking information, requesting clarification, initiating interaction; to comment, as in sharing information, expressing feelings and ideas, providing explanations, describing events, maintaining interaction, using hearing that is adequate for conversation, and using speech (articulation, voice, and fluency) that is intelligible.20 C.F.R. § 416.926a(c)(4)(i).
Petitioner alleges that the ALJ erred by failing: (1) to consider and give proper weight to the note and supporting tests by his treating physician, Dr. John Bums; (2) to give proper weight to the standardized test showing Petitioner scored well below grade level; and (3) to consider Petitioner's impairments outside his structured environment.
(1) Dr. Burns' ReDorts
Dr. Bums was Petitioner's treating physician. At the time of the April 22, 1998 hearing, the ALJ had access to a report from Dr. Bums, which had been received by Plaintiff's counsel on April 17, 1998. (Tr. 361). In the report, Dr. Burns noted: "The combined presence of Mood Disorder and EEG variant meet the specification of functional equivalence." The actual EEG test and the July 15, 1997 letter from the physician who administered the test, Dr. Michael Djernes, to Dr. Bums was also available to the ALJ at the time of the hearing. (Tr. 331; 362).
However, the ALJ noted in his decision the following:
Unfortunately, the claimant's attorney failed to attach a copy of Dr. Bums' chart note or the BEG report. Dr. Burns' opinion that "[t]he combined presence of Mood Disorder and EEG variant meet the specification of functional equivalence" is just that, an opinion. Moreover, neither the claimant's attorney nor Dr. Burns have provided medical evidence to support that opinion.
It is clear to the Court, although the ALJ was apparently unaware that the chart note, BEG test, and July 15 letter were exhibits before him at the time of the hearing, that the ALJ was mistaken when he noted that he did not have access to any medical evidence to support Dr. Burns' opinion.
This Court's role is not to weigh the evidence in regards to the BEG Report and July 15 letter which Dr. Burns' chart note refers to and determine whether that evidence, in light of the other evidence, is sufficient to warrant a finding that Petitioner has a marked impairment of cognitive/communicative functioning. This is the role of the ALJ; however, the ALJ did not consider the BEG Report or letter and failure to do so constitutes error. In the Court's opinion, if the ALJ had considered the EEG Report and letter in conjunction with Dr. Burns' chart note, the ALJ may have concluded that Petitioner had a marked impairment in cognitive/communicative functioning. Accordingly, the Court will remand this case to allow the ALJ an opportunity to consider the BEG Report, the July 15 letter, and also to consider Dr. Burns' chart note in the decision making process.
(2) Test Showing Petitioner's Grade Level Performance
At the time of the April 22, 1998 hearing, Petitioner was in the ninth grade. During the 1997-1998 school year, Petitioner received below average grades including an F both semesters in Physical Science and an F and D for his semesters in English. (Tr. 52-53). The ALJ noted in his decision that the existence of a failing grade does not "necessarily equate with a problem in cognitive communicative functioning." (Tr. 83). The ALJ reasoned that Petitioner's truancy and suspension associated with his problems in social functioning are the more likely explanations for his failing grades.
In September 1997, Petitioner appears to have taken a standardized test to assess his broad reading, writing language, and key math skills. (Tr. 297). His test results recorded him at a 6.9 grade level in broad reading, a 5.1 grade level in writing language, and a 5.5 grade level in key math. ( Id..) At the time of the test, Petitioner was in the ninth grade. Obviously, these results place Petitioner far below the average for other individuals of his age.
A claimant's performance on a standardized test is an important, although not conclusive, factor an ALJ should consider when determining cognitive function. See Dykes v. Apfel, No, C.A.99-3039, 2000 WL 217748 (E.D.Pa. Feb. 14, 2000). The ALJ, however, did not even make mention of this test and its results. Further, the ALJ'S reasoning that truancy and suspension caused the failing grades does not also explain the results of this standardized test. Although Petitioner presented this argument in his amended brief in support of his Petition for Review, Respondent did not address in its responding brief, the ALJ's failure to consider these test results.
The Court concludes that the ALJ's failure to consider the standardized test results is error. In the Court's opinion, had the ALJ considered the test results, along with the medical information addressed in part D(1) above, the ALJ may have concluded that Petitioner bad a marked impairment in cognitive/communicative functioning. Accordingly, the Court will remand this case to allow the ALJ to consider the results of the standardized test.
(3) Impairments Outside Structured Environment
Children with impairments may be a part of a highly structured program or setting which reduces symptoms of their impairment. According to 20 C.F.R. § 416.924c(d) a structured or highly supportive setting is defined as follows: "A structured or highly supportive setting may be your own home, in which family members make extraordinary adjustments to accommodate your impairment(s); or your classroom at school, whether a regular class in which you are accommodated or a special classroom." If a claimant is in a structured program which helps control his or her symptoms, the ALJ is required to consider the symptoms and impairments of the claimant outside of that structured environment. See Harper v. Apfel, No. Civ.A.99-0758-AH-L, 2000 WL 1369507, at *6 (S.D.Ala. Sept. 13, 2000). According to 20 C.F.R. § 416.924c(d), "if [a claimant's] symptoms or signs are controlled or reduced by the environment in which [the claimant] live[s], [the ALJ] will consider [the claimant's] functioning outside of this highly structured setting."
In the instant action, the ALJ relied heavily on the opinion of Dr. Atkin to conclude that, when medicated, Petitioner's impairments did not meet or equal a listing or amount to a functional equivalent of a listed impairment. However, the record does not indicate that Dr. Atkin based his opinion on the impairments of Petitioner outside of his highly structured school setting. On the contrary, Dr. Atkin testified, "I think this is obviously a young man who has some problems. He's in a special educational situation which provides some exceptional structure and support and within that structure and support, he is able to function." (Tr. 135). Dr. Atkin did not testify as to whether or not Petitioner met a listing, assuming his symptoms were considered outside the highly structured school environment. It appears to the Court that Dr. Atkin's opinion was based on the symptoms and signs of impairment within Petitioner's highly structured school setting. The ALJ did state that, "[w]hile it is true that Dr. Atkin testified that the claimant functions better in a highly structured environment, that in no way alters Dr. Atkin's testimony that the claimant's impairments do not meet" the listing. In the Court's opinion, this statement does not satisfy the requirement of 20 C.F.R. § 416.924c(d) to consider a claimant's symptoms outside of a highly structured environment.
The Court concludes that the ALJ'S failure to consider Petitioner's impairments outside the highly structured school environment constitutes error. Accordingly, the Court remands this case so that the ALJ can consider Petitioner's impairments outside his highly structured school setting.
V. CONCLUSION
The Court finds that the ALJ erred: (1) by not affording Petitioner a hearing to justify his failure to obtain medication; (2) by not considering the EEG Report and July 15 letter in support of Dr. Burns' chart note indicating Petitioner's impairment; (3) by not considering the results of Petitioner's standardized test; and (4) by not considering Petitioner's impairments outside his highly structured school environment.
Accordingly, the Court will remand this case to allow the ALJ the opportunity to consider this additional evidence in the decision-making process.
VI. ORDER
Based upon the foregoing, IT IS HEREBY ORDERED that Petitioner's Petition for Review (Docket No. 1) is GRANTED. The Commissioner's decision is remanded for further proceedings in accordance with the Court's ruling.
SO ORDERED