Opinion
Case No. CIV-18-1109-F
08-13-2019
JAMES WILSON, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, James Wilson, seeks judicial review of the Social Security Administration's denial of disability insurance benefits (DIB). This matter has been referred by United States District Judge Stephen P. Friot for proposed findings and recommendations. See 28 U.S.C. §§ 636(b)(1)(B), 636(b)(3). The Commissioner filed the Administrative Record (AR), [Doc. No. 12], and both parties briefed their respective positions. For the reasons set forth below, it is recommended that the Commissioner's decision be reversed and remanded for further proceedings.
Citations to the parties' submissions reference the Court's CM/ECF pagination.
I. Procedural Background
On April 12, 2016, Plaintiff protectively filed an application for DIB. See AR 10. The Social Security Administration (SSA) denied the application initially and on reconsideration. AR 95, 107. Following a hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision dated March 21, 2018. AR 7-26. The Appeals Council denied Plaintiff's request for review. AR 1-6. Thus, the decision of the ALJ became the final decision of the Commissioner. Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Plaintiff seeks judicial review of this final agency decision.
II. The ALJ's Decision
The ALJ followed the sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (explaining five-step sequential evaluation process); see also 20 C.F.R. § 404.1520. The ALJ first determined Plaintiff had not engaged in substantial gainful activity since May 16, 2015, the alleged onset date. AR 13.
At step two, the ALJ determined Plaintiff suffers from the severe impairments of "degenerative disc disease of the spine status-post 2012 and August 2016 surgical corrections; ischemic heart disease status-post 2009 single vessel bypass procedure and July 2015 re-do of single vessel bypass procedure and aortic valve replacement; diabetes mellitus; obesity (body mass index ["BMI"] 32 through 34); essential hypertension; chronic obstructive pulmonary disease ("COPD"), and sleep apnea." Id. At step three, the ALJ found Plaintiff's impairments do not meet or medically equal any of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 13-14.
The ALJ also found Plaintiff had the non-severe impairments of "bilateral mild bilateral carpal tunnel syndrome, headaches, and neurogenic claudication/radiculitis right lower extremity." Id.
The ALJ next determined Plaintiff's residual functional capacity (RFC), concluding:
[Plaintiff] has the residual functional capacity to perform light exertion work as defined in 20 CFR 404.1567(b), except [Plaintiff] must avoid even moderate exposure to fumes, odors, dusts, gases, and poor ventilation. [Plaintiff] has no other work-related limitations or restrictions.AR 14-19. After finding that the Medical-Vocational Rules supporting a finding that Plaintiff is "not disabled" whether or not Plaintiff has any past relevant work, the ALJ proceeded past Step Four. AR 19. Relying on the testimony of a vocational expert, the ALJ found there were jobs that existed in significant numbers in the national economy that Plaintiff could perform—small products assembler, office helper, and electronic bench worker. AR 20-21. The ALJ concluded, therefore, that Plaintiff was not disabled for purposes of the Social Security Act. AR 21.
III. Standard of Review
Judicial review of the Commissioner's final decision is limited to determining whether the factual findings are supported by substantial evidence in the record as a whole and whether the correct legal standards were applied. See Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (quotation omitted). A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it. Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004). The court "meticulously examine[s] the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citations omitted). While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court does not reweigh the evidence or substitute its own judgment for that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quotations and citations omitted).
IV. Claims Presented for Judicial Review
Plaintiff asserts the ALJ did not properly consider his diagnosis of depression. Plaintiff further contends the ALJ did not properly consider the disability determination from the Department of Veterans Affairs (VA). The Court recommends that this matter be reversed and remanded because the ALJ erred in his consideration of Plaintiff's depression.
V. Analysis
A. The ALJ Did Not Properly Consider Plaintiff's Depression
1. Medical History
According to Plaintiff, he first sought treatment of depression on December 20, 2016, when Plaintiff was seen by Mr. Stanley L. Liggett, LCSW. Pl.'s Br. 4 (citing AR 1532). Plaintiff took a BHDP/BHM-20 examination, which Mr. Liggett noted "severe distress areas of depression, anxiety, and sense of well-being as well as life functioning scale." AR 1533-1534. Mr. Liggett found Plaintiff had "major depressive disorder, single episode, unspecified." AR 1534.
On December 22, 2016, Plaintiff underwent a PHQ-2 screening, which indicated a positive screen for depression, and a PHQ-9 screening, which was suggestive of moderately severe depression. AR 2130-2131. On the same date, he saw Dr. Evaristo Quinones-Moreira, M.D., who noted Plaintiff was assessed with depression and had been prescribed Zoloft, 25 mg. AR 2126. Dr. Quinones-Moriera evaluated the positive depression screen and he determined Plaintiff should be managed in primary care. Id.
On December 28, 2016, Plaintiff followed up for counseling with Mr. Liggett, who also performed a psychometric emotional/behavioral assessment. AR 1519. Plaintiff had a third visit with Mr. Liggett on January 12, 2017, during which Plaintiff reported improvement after taking Zoloft. AR 1510. Plaintiff also underwent another BHDP/BHM-20 examination, which indicated "some significant struggles and the stress with depression and anxiety, as well as sense of well-being, and overall . . . functioning." Id. Plaintiff again saw Mr. Liggett on January 26, 2017, during which Plaintiff again reported the Zoloft's positive impact, but his daughter noticed that Plaintiff was still withdrawn socially, had a short fuse verbally, and was easily frustrated and irritable. AR 1500.
Plaintiff again visited Mr. Liggett on February 27, 2018. AR 2366-2368. The notes from this visit reflect that Plaintiff had not done well since starting his anti-depressant. Id. Because it was difficult for Plaintiff to get into the VA doctor (Dr. Quinones-Moriera), Mr. Liggett suggested Plaintiff follow-up with Dr. Rodrigo A. Mariano, M.D.—a physician at Reynolds Army Community Hospital—regarding his medication management. Id. Mr. Liggett believed Plaintiff would benefit from a larger dose of Zoloft. Id. Dr. Mariano agreed with the plan to increase Plaintiff's Zoloft dosage and wrote the prescription. AR 2359.
The record indicates Plaintiff continued with monthly visits to Mr. Liggett for counseling through November 29, 2017. AR 2201-2203, 2230-2232, 2252-2254, 2262-2264, 2283-2285, 2294-2296, 2313-2325, 2343-2345, 2348-2350. The notes from these visits reflect Plaintiff continued to be diagnosed and treated for major depressive disorder. Id. During this time period, Plaintiff also requested refills of his Zoloft medication on two occasions. AR 2221, 2303. The notes from his last visit with Mr. Liggett reflect that Plaintiff had moderate depressive symptoms and he had started counseling with the VA after his persistent efforts to obtain counseling services through the agency. AR 2201-2203.
In his brief, the Commissioner states "Plaintiff does not even attempt to account for the nine-month gap in treatment between January 2017 and September 2017." Def.'s Br. 7. While Plaintiff did not reference these medical records in his brief, the record does not reflect a nine-month gap in treatment—Plaintiff regularly saw Mr. Liggett for counseling sessions. The Commissioner is cautioned to accurately portray the record in the future and to avoid making similar misleading statements.
At the hearing, Plaintiff discussed his depression and the treatment he sought for it. AR 70-72. Plaintiff testified that the depression makes him angry and aggravated two-to-three times per week—down from what had previously been a daily occurrence. AR 71-72. He further stated that he is unable to do simple tasks, which cause him to get mad and angry. Id.
2. The ALJ's Analysis
The ALJ did not consider Plaintiff's depression to be a severe impairment or a non-severe impairment. AR 13. Nevertheless, the ALJ noted that Plaintiff stated in his Disability and Medication Reports that he was disabled, in part, because of depression. AR 15. Further, the ALJ recognized that Plaintiff testified he was unable to work, in part, because of his depression. AR 15-16. In the decision's only other reference to depression, the ALJ stated: "[Plaintiff] also persistently denied experiencing significant depression, anxiety, and other psychiatric symptoms and persistently exhibited normal mental status examinations." AR 18. The ALJ did not cite any medical records supporting this proposition.
Plaintiff contends the ALJ erred by failing to utilize the special technique to analyze his depression. Pl.'s Br. 10-11. To determine the severity of a claimant's mental impairments, the SSA follows a special technique that is set forth in 20 C.F.R. § 404.1520a. Under the special technique, the SSA first determines whether the claimant has a medically determinable mental health impairment. 20 C.F.R. § 404.1520a(b)(1). The SSA next rates the degree of functional limitation caused by the impairment. 20 C.F.R. § 404.1520a(b)(2)-(c). The SSA then uses the degree of functional limitation to determine the severity of the impairment. 20 C.F.R. § 404.1520a(d). In making these determinations, an ALJ's written decision "must show the significant history, including examination and laboratory findings, and the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s)" and "must include a specific finding as to the degree of limitation in each of the functional areas described in paragraph (c) of this section." 20 C.F.R. § 404.1520a(e)(4).
Here, it is clear that Plaintiff's depression constitutes a medically determinable impairment. See Lamb v. Barnhart, 85 F. App'x 52, 57 (10th Cir. 2003) (unpublished) (considering a claimant to have a medically determinable mental impairment when a doctor diagnosed her with depression and Zoloft was prescribed to treat her depression); see also George v. Astrue, 451 F. App'x 767, 768 (10th Cir. 2011) (unpublished). Yet, the ALJ did not follow the special technique. The ALJ's failure to do so is error. See Lamb, 85 F. App'x at 57 ("Thus, there is sufficient evidence in the record to establish that Mrs. Lamb suffers from a mental impairment, and the ALJ therefore erred by failing to evaluate the severity of her mental impairment in accordance with the procedures set forth in 20 C.F.R. § 404.1520a . . . .").
Plaintiff correctly concedes that the ALJ's failure to consider his depression to be a severe impairment at Step Two amounts to harmless error. Pl.'s Br. 9; see also Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016) (finding that "a claimant need only establish, and an ALJ need only find, one severe impairment" to proceed to Step Three). But that does not obviate the need for a proper analysis of Plaintiff's depression at Step Four. See 20 C.F.R. § 404.1545(a)(2). Here, the ALJ's discussion at Step Four was insufficient.
Plaintiff contends the ALJ ignored functional limitations caused by his depression, including "his interaction with, both the general public, as well as supervisors and co-workers (due to his firings)." Pl.'s Br. 10. Plaintiff notes that he reported to his counselor that he was withdrawn socially, was easily annoyed and angered, and had a short fuse verbally. AR 1500, 2350. He reported that he often loses his temper due to his depression. AR 280. His treatment also included anger management training. AR 2350, 2285. The ALJ did not consider this information—relevant to Plaintiff's ability to interact with others—when making the RFC determination. See 20 C.F.R. § 404.1520a(c)(3) (including "interact with others" as one of the four broad functional areas in which the ALJ is required to rate the degree of functional limitation). "[W]ith no 'special technique' findings regarding functional limitations, the Court cannot suppose which limitations, if any, should have been in the RFC." Milburn v. Colvin, No. CIV-12-886-D, 2013 WL 5755533, at *3 (W.D. Okla. Oct. 23, 2013).
Further, the ALJ's analysis is belied by the medical record. The ALJ only stated that Plaintiff "persistently denied" experiencing significant depression, anxiety, and other psychiatric symptoms while "persistently" exhibiting normal mental status examinations. AR 19. Plaintiff sought treatment for depression, was diagnosed with "major depressive disorder, single episode, unspecified," was prescribed medication to treat his mental disorder, and he sought and obtained an increased dosage when his symptoms were not subsiding. The ALJ, however, did not discuss these contradictory records—an omission which amounts to error. See Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (holding that an ALJ need not "discuss every piece of evidence" but "must discuss the uncontroverted evidence he chooses not to rely on as well as significantly probative evidence he rejects").
In his brief, the Commissioner notes that at appointments, Plaintiff's behavior was normal, his thought processes not impaired, his attention was normal, and he never exhibited homicidal or suicidal ideation, and his thought content was not impaired. Def.'s Br. 7. This information was not considered by the ALJ, and "the district court may not create post hoc rationalizations to explain the Commissioner's treatment of evidence when that treatment is not apparent from the Commissioner's decision itself." Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005).
On remand the ALJ should apply the special technique and clarify whether Plaintiff has any mental limitations that affect what he can do in a work setting. The ALJ should also properly consider the medical evidence related to Plaintiff's depression.
The Commissioner also argues that any "minor additional social limitations" would still allow him to perform unskilled jobs. Def.'s Br. 9. The Court will leave this analysis to the ALJ on remand.
B. VA Rating
The VA found Plaintiff was 100% service connected disabled. AR 877. The ALJ noted this rating in the decision and stated: "The undersigned has considered the findings/assessments of the Veteran's Administration by the criteria set forth in Regulations 20 CFR 404.1513 and 404.1527." AR 15. Plaintiff claims this analysis is insufficient.
The VA rated Plaintiff's individual conditions as follows: heart valve replacement (100%); sleep apnea syndromes (50%); migraine headaches (30%); diabetes mellitus (20%); degenerative arthritis of the spine (10%); paralysis of sciatic nerve (10%); paralysis of sciatic nerve (10%); hypertensive vascular disease (0%); limited motion of ankle (0%); scars (0%); allergic or vasomotor rhinitis (0%); hiatal hernia (0%); tendon inflammation (0%); scars (0%); scars (0%); and tendon inflammation (0%). AR 877. --------
It is well-established that a disability rating by another agency, while not binding on the Commissioner, "is evidence that the ALJ must consider and explain why he did not find it persuasive." Grogan, 399 F.3d at 1262. The ALJ's rudimentary discussion of the VA rating does not amount to a sufficient explanation as to why he did not find the rating persuasive. See Winick v. Colvin, 674 F. App'x 816, 822 (10th Cir. 2017) (unpublished) (holding the ALJ did not provide a sufficient explanation when the decision only stated that the criteria to determine a VA rating is different than the criteria used by the SSA and that the VA's rating was considered and factored into the RFC). Thus, the ALJ erred in his consideration of the VA rating.
Plaintiff, however, fails to identify any specific evidence that would have changed the ALJ's decision. See Breneiser v. Astrue, 231 F. App'x 840, 845 (10th Cir. 2007) (unpublished) (rejecting claimant's argument that the ALJ should have given the VA's rating more weight, where claimant did not identify "any specific factual finding or evidence in the [VA's] disability determination that should have changed the [ALJ's] decision") (citation omitted). Thus, the ALJ's error is not reversible in this instance. Nevertheless, because reversal is recommended on another issue, the ALJ should remedy this error on remand by more fully discussing his consideration of the VA rating.
RECOMMENDATION
For the reasons set forth above, it is recommended that the Court reverse the Commissioner's decision and remand the matter for further proceedings consistent with this Report and Recommendation.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by August 27, 2019. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED this 13th day of August, 2019.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE