ELIZABETH M. TIMOTHY, Chief Magistrate Judge.
This case has been referred to the undersigned magistrate judge for disposition pursuant to the authority of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, based on the parties' consent to magistrate judge jurisdiction (see ECF Nos. 11, 12). It is now before the court pursuant to 42 U.S.C. § 405(g) of the Social Security Act ("the Act"), for review of a final decision of the Commissioner of the Social Security Administration ("Commissioner") denying Plaintiff's application for supplemental security income ("SSI") benefits under Title XVI of the Act, 42 U.S.C. §§ 1381-83.
Upon review of the record, it is the opinion of the undersigned that the findings of fact and determinations of the Commissioner are not supported by substantial evidence; therefore, the decision of the Commissioner should be reversed and remanded.
On April 23, 2012, Plaintiff filed an application for SSI, alleging disability beginning February 8, 2012 (Tr. 12).
Prior to the above proceedings, Plaintiff had filed an earlier application for disability insurance benefits and for SSI, alleging disability beginning on July 1, 2005 (Tr. 68). After a hearing held on December 16, 2011, before a different ALJ, the ALJ issued a decision finding that Plaintiff was limited to a sedentary level of exertion but was not disabled at any time through February 7, 2012, the date of his decision (Tr. 68-78). Plaintiff filed the instant application shortly thereafter.
In denying Plaintiff's claims, the ALJ made the following relevant findings (see Tr. 12-23):
(a) Plaintiff had not engaged in substantial gainful activity since April 23, 2012, the application date;
(b) Plaintiff had the following severe impairments: degenerative disc disease; hypertension; obesity; and hiatal hernia;
(c) Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1;
(d) Plaintiff had the residual functional capacity to perform light work as defined in 20 C.F.R. § 416.967(b), except he could lift and carry up to 20 pounds occasionally and 10 pounds frequently; he could stand, walk, and sit with normal breaks for 6 hours in an 8-hour work day; and he had the ability for unlimited pushing and pulling;
(e) Plaintiff was capable of performing his past relevant work as a security guard. This work did not require the performance of work-related activities precluded by Plaintiff's residual functional capacity; and
(f) Plaintiff had not been under a disability, as defined in the Act, since April 23, 2012, the date the application was filed.
Review of the Commissioner's final decision is limited to determining whether the decision is supported by substantial evidence from the record and was a result of the application of proper legal standards.
The Act defines a disability as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). To qualify as a disability the physical or mental impairment must be so severe that the claimant is not only unable to do his previous work, "but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Id. § 423(d)(2)(A). Pursuant to 20 C.F.R. § 404.1520(a)-(g),
1. If the claimant is performing substantial gainful activity, he is not disabled.
2. If the claimant is not performing substantial gainful activity, his impairments must be severe before he can be found disabled.
3. If the claimant is not performing substantial gainful activity and he has severe impairments that have lasted or are expected to last for a continuous period of at least twelve months, and if his impairments meet or medically equal the criteria of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is presumed disabled without further inquiry.
4. If the claimant's impairments do not prevent his from doing his past relevant work, he is not disabled.
5. Even if the claimant's impairments prevent him from performing his past relevant work, if other work exists in significant numbers in the national economy that accommodates his residual functional capacity ("RFC") and vocational factors, he is not disabled.
The claimant bears the burden of establishing a severe impairment that keeps him from performing his past work. 20 C.F.R. § 404.1512. If the claimant establishes such an impairment, the burden shifts to the Commissioner at step five to show the existence of other jobs in the national economy which, given the claimant's impairments, the claimant can perform.
At Plaintiff's hearing, he testified that his last job was during the seven years he worked as a security officer, which he quit in 2001 on the advice of his doctor (Tr. 37-38). Plaintiff testified that he now lives with his parents (Tr. 33), and during the day he generally sits at home, watches TV, and talks with his parents (Tr. 35). He stated that he does not cook, wash dishes, do the laundry, clean, do yard work, or shop for groceries, and that he can take out the garbage only if it is a very small bag (Tr. 35-36). Plaintiff testified that he does the driving for his family, including going to church and taking his parents to their doctor appointments, as well as for grocery shopping, and he stated that he had driven to the hearing (Tr. 33).
Plaintiff testified that he has pain in his hands, arms, back, legs, feet, and chest, for which he takes over-the-counter Tylenol (Tr. 34). He stated that the Tylenol was not effective in relieving the pain but that he could not afford prescription medication because of the cost and his lack of health insurance to cover the cost (Tr. 47-48). He stated that on average he could sit for about 20 to 30 minutes before having to shift or lie down because of back spasms (Tr. 48). He testified to using a cane for balance and for when he is experiencing pain (Tr. 49). He estimated that he could walk 50 to 60 feet and stand about 10 minutes without exacerbating his back or leg pain (Tr. 49-50). Plaintiff also testified to having difficulty reaching overhead and gripping objects (Tr. 50-52). Plaintiff further described having pain and numbness in his hands, which causes him difficulty in gripping objects and picking them up, and that he cannot feel a pinprick to his fingers (Tr. 38-40).
Plaintiff additionally testified about his anxiety or panic disorder, stating that he had panic attacks that occurred without notice, even when he is simply talking to his parents (Tr. 51). He described his attacks as involving a racing heartbeat, profuse sweating, pounding in his head, and nausea that force him to lie down (Tr. 50-51). Plaintiff provided that the attacks could last between 20 and 30 minutes, and on average they would occur one to seven times per week (Tr. 51). In one instance he stated he had about 20 attacks in one day (id.).
In a Supplemental Anxiety Questionnaire submitted by Plaintiff on June 2, 2012, he described experiencing anxiety attacks for the past three and a half years, having had approximately 70 to 75 attacks in the last three months and close to 150 attacks in the previous six months, and having had six attacks on the day he filled out the form (Tr. 214-15). Plaintiff stated that his panic attacks would last from five to thirty minutes at a time and would cause symptoms such as a racing heart, sweating, head throbbing, nausea, and pain in the shoulders, arms, and sometimes the chest (Tr. 215). He indicated that nothing he knows of brings on the attacks and that sometimes he wakes up at night having an attack (id.). He stated that lying down and wiping a cold washcloth on his face can help relieve symptoms (id.). In answer to a question regarding how the attacks affect his ability to function, Plaintiff expressed fear that he does not know when or where an attack may occur (Tr. 216). Plaintiff seemed to express frustration that no doctor has been able to diagnose the cause of these attacks (Tr. 215). Plaintiff's mother filled out a similar form that corroborated Plaintiff's anxiety attacks and symptoms (Tr. 217-19).
On June 21, 2012, Cara Wheeler, Psy.D., conducted a clinical interview with Plaintiff. During the interview Plaintiff reported that he was not currently taking any psychotropic medication, nor had he any history of mental health treatment other than being prescribed Paxil by his primary care physician (Tr. 306). Plaintiff stated that he has had many "spells" that produce head pressure, dizziness, chest and shoulder pain, and perspiration, and that they last from five to thirty minutes (id.). Plaintiff denied having any difficulty breathing during these episodes or "feeling that he is dying or going crazy" (id.). Plaintiff evidently described these spells as "mysterious," as waking him at night sometimes, and as preventing him from leaving his home because he is afraid of having an attack in public (id.).
Dr. Wheeler noted that Plaintiff's (unidentified) cardiac tests came back normal (Tr. 306). While Plaintiff was observed to be somewhat unkempt with body odor, he was otherwise perceived as appearing normal and behaving appropriately and cooperatively (Tr. 307). Dr. Wheeler found Plaintiff to be able to speak normally and coherently and to be able to respond to questions appropriately (id.). She diagnosed Plaintiff as having "Panic Disorder with Agoraphobia (provisional)," but while this was in recognition of Plaintiff's spells which "include[d] many symptoms commonly associated with anxiety," she also noted that Plaintiff denied feeling panicked during his spells and that he would feel dizzy but not experience shortness of breath (Tr. 307-08). As Plaintiff had recently been prescribed a second prescription for his uncontrolled high blood pressure, and because Plaintiff reported that it was during this time that his spells increased, Dr. Wheeler opined that his spells could have a "medical explanation" (Tr. 308). Consequently, Dr. Wheeler stated that she was unable to make a clear diagnosis about Plaintiff's psychological condition without a thorough cardiac evaluation (id.).
On July 28, 2012, Plaintiff was examined at the request of Disability Determination Services by Joseph C. Siano, D.O., who largely commented on Plaintiff's physical ailments but did make the statement that Plaintiff's "[a]llegation of anxiety appears to pose no functional [limitation] at this time" (Tr. 312).
In completing an August 31, 2012, Disability Report, Plaintiff responded to a question, which asked whether he had any new illnesses or conditions, that his spells were getting worse; he also reiterated that he fears going out anywhere because he might have another spell (Tr. 225, 228).
On November 6, 2012, Plaintiff was seen for a physical consultative examination by Carla M. Holloman, D.O., who noted: "[Plaintiff] was diagnosed with hypertension in the 1990's. He complains, but, this only occurs with anxiety attacks. He does not carry a formal diagnosis of anxiety nor has he been prescribed any medications." (Tr. 329).
On December 19, 2013, Plaintiff was seen by Quin E. Chadwick, ARNP, who noted that Plaintiff had been admitted to the hospital the previous week because of chest pain (Tr. 345). Plaintiff had a "cardiac workup," was told he had anxiety, and was released the next day (id.). Accordingly, ARNP Chadwick indicated that Plaintiff's anxiety could be related to his chest pain (Tr. 346). Plaintiff's mood and affect at the examination were observed to be normal, however (id.). ARNP Chadwick prescribed visteral (hydroxyzine Hcl) for Plaintiff's anxiety, to be used when he felt an "attack coming on"; she also indicated that Plaintiff should take the medication when he "feel[s] chest pain starting," evidently to rule out anxiety (see Tr. 347).
As is relevant here, Plaintiff contends in his second claim that the ALJ erred in her evaluation of Plaintiff's anxiety as a mental impairment at Step Two and while assessing his RFC at Step Four. In her Step Two analysis, the ALJ found Plaintiff's anxiety not to be a severe impairment. The ALJ determined 1) that the record did not contain "any findings which would support any significant functional limitations" and 2) that Plaintiff's condition had improved with conservative treatment (Tr. 14).
In determining Plaintiff's anxiety to be non-severe, the ALJ gave some weight to the opinion of Jill Rowan, Ph.D., a non-examining medical source who, on July 2, 2012, found Plaintiff to have only mild difficulties in maintaining social functioning, no difficulties with maintaining concentration, persistence or pace, and no episodes of decompensation of an extended duration (Tr. 21-22, 91).
In the next paragraph, which is virtually identical to the paragraph describing Dr. Rowan's findings, the ALJ gave some weight to the findings of Patricia A. Clark, who, on September 18, 2012, had likewise determined that Plaintiff had mild difficulties in maintaining social functioning but no difficulties with maintaining concentration, persistence or pace, and no episodes of decompensation of an extended duration (Tr. 22, 105).
Both Drs. Rowan and Clark provided in support of their opinions that Plaintiff lacked a "mental health history"; that he was taking no medication for his anxiety; that while he reported having spells he denied having panic as one of the symptoms; that he engaged in certain daily activities
The ALJ also noted the fact that Plaintiff was able to testify before her at the hearing without apparent difficulty, and she also generally noted that Plaintiff was cooperative during his interview with Dr. Wheeler without any concentration deficits (Tr. 17, 20). Further, the ALJ cited the fact that Dr. Wheeler's diagnosis was unclear regarding the cause of Plaintiff's symptoms (Tr. 20).
As is relevant to the issue at bar, the ALJ posed the following hypothetical question to the Vocational Expert ("VE") at the hearing:
(Tr. 53-54) (emphasis added).
Thus, it is fairly evident from this hypothetical question that the ALJ directly excluded Plaintiff's anxiety, or at least his "spells," regardless of their origin, from consideration in the hypothetical questions posed to the VE.
Plaintiff contends that he does not take medication, or ostensibly seek other treatment, for his anxiety because he is indigent and therefore unable to afford it. As the Eleventh Circuit has held, noncompliance with a prescribed treatment regimen does not prevent a social security claimant from receiving benefits when the reason for his noncompliance is beyond his control, such as when he is unable to afford the treatment.
Plaintiff also makes the point that the failure to achieve or obtain a diagnosis for his "spells" does not negate the fact that he may nevertheless have a severe or debilitating impairment. Plaintiff thus attacks the ALJ's seeming reliance on Dr. Wheeler's inconclusive diagnosis as support for her finding that Plaintiff was not disabled (see Tr. 16, 17, 20). Indeed, it appears that Plaintiff's anxiety was not identified as a severe impairment simply because there was no certain diagnosis of his problem.
Equally, the issue of how Plaintiff's spells and their symptoms might impose functional limitations upon him does not appear to have been considered by the ALJ, again apparently because of the lack of a firm or final diagnosis. As Defendant recognizes, a diagnosis alone is insufficient to establish a limitation; a limitation is measured by its effect on a person's ability to work, "not simply in terms of deviation from purely medical standards of bodily perfection or normality."
Moreover, there is an important feature to Plaintiff's "spells" that to this point appears to have been overlooked: their episodic nature. In this regard, the court models its finding on the Eleventh Circuit's opinion in
As the Eleventh Circuit further explained:
Id. at 843 (quoting
While the instant case might differ from
As a final note, the Eleventh Circuit also made the following point regarding the ability to function in the workplace with a mental health impairment:
Id. at 842. In the instant case, the ALJ identified certain baseline activities of daily living that Plaintiff could perform, but as the Eleventh Circuit discusses, certain work environments or routines may prove to be inappropriate based upon their effects upon his mental health.
As discussed earlier, the ALJ maintains a responsibility to ensure a comprehensive record in order to fully develop the facts and issues.
In conclusion, for the reasons provided above, this case should follow the general rule when errors occur, which is to reverse and remand for additional proceedings. See, e.g.,
Accordingly, it is
1. The Commissioner's decision denying benefits is
2. This case is
(Tr. 17).
