ROBERT L. MILLER, Jr., District Judge.
Felicia Brown seeks judicial review of the final decision of the Commissioner of Social Security denying her application for disability insurance benefits under the Social Security Act, 42 U.S.C. § 423. The court has jurisdiction over this action pursuant to 42 U.S.C. § 405(g). For the reasons that follow, the court reverses the Commissioner's decision and remands the matter for further proceedings consistent with this opinion.
In January 2013, the Department of Veterans Affairs found that Ms. Brown, an Iraq war veteran, was disabled based on her service-connected schizoaffective disorder, bipolar type.
The ALJ determined that Ms. Brown had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a), with limitations.
When the Appeals Council denied Ms. Brown's request for review, the ALJ's decision became the final decision of the Commissioner.
The issue before the court isn't whether Ms. Brown is disabled, but whether substantial evidence supports the ALJ's decision that she isn't disabled.
Ms. Brown argues that the ALJ made three errors that require remand: (1) the ALJ improperly ignored the opinions of two psychologists; (2) the ALJ's credibility determination was flawed, and (3) the ALJ didn't properly address a medical opinion that contradicted the ALJ's residual functional capacity determination. Ms. Brown asks the court to either reverse the Commissioner's decision and award benefits or remand the case for further proceedings. Ms. Brown's first argument requires remand. While the ALJ's credibility determination might not be patently wrong, on remand the ALJ should ensure that his findings are reasoned, supported, and based only on proper factors.
Ms. Brown argues that the ALJ erred in his treatment of the medical opinions of two psychologists. First, Ms. Brown contends that the ALJ didn't properly address the opinion of Dr. Samantha Apel, an examining psychologist. Dr. Apel diagnosed Ms. Brown with schizoaffective disorder, bipolar type and noted that she had suicidal thoughts, "significant auditory hallucinations and fear of being home alone," poor concentration and memory, and "missed a lot of work" at her one-day per week job cutting hair at a nursing home "due to depressive symptoms." Based on her findings, Dr. Apel opined that Ms. Brown's "symptoms continue to be consistent with schizoaffective disorder . . . worsening over the last few years[,] resulting in [an] inability to work full time or maintain healthy relationships." The ALJ's written decision doesn't provide any indication that he considered Dr. Apel's opinion; he didn't assign it any weight or address any aspect of her medical report.
The court of appeals has repeatedly called on ALJs to consider all relevant evidence, especially evidence "that would support strongly a claim of disability."
The Commissioner is correct that determining whether a claimant is able to work is a legal matter reserved to the Commissioner by law. 20 C.F.R. § 404.1527(d)(1). See also
Ms. Brown next argues that the ALJ didn't properly address consulting psychologist Dr. Alan Wax's opinion that Ms. Brown presented difficulties with simple math problems. The Commissioner responds that Ms. Brown's math limitations, mentioned on a single occasion, wouldn't prevent her from performing jobs identified by the vocational expert, which the Dictionary of Occupational Titles (DOT) classifies as mathematical level one, the lowest level identified in the DOT.
Dr. Wax indicated in his report that Ms. Brown couldn't complete serial seven subtractions from 100 and made two errors when subtracting by threes from thirty. When noting that Ms. Brown's mathematics computation score was in the bottom fourth percentile, he didn't rule out an arithmetic disorder. Consulting neuropsychologist Dr. Kenneth McCoy also noted that Ms. Brown was unable to complete the serial seven subtractions and incorrectly calculated three plus four. The jobs identified by the vocational expert require an ability to perform basic addition, subtraction, multiplication, and division. See, e.g., Touch-Up Screener, Printed Circuit Board Assembly, DICOT 726.684-110, 1991 WL 679616.
Despite the medical evidence of Ms. Brown's math limitations, the ALJ didn't ask her about her math abilities, orient the vocational expert to the evidence on her math limitations, or address Dr. Wax's concerns about her math limitations in his opinion. This was also an error. See
Ms. Brown also contends that the ALJ's credibility determination is patently wrong because it is unsupported and unreasonable. She maintains that the ALJ impermissibly relied on her alleged noncompliance with medical treatment and improperly invoked her activities of daily living to support his adverse credibility determination. The Commissioner contends that the ALJ properly considered multiple factors in assessing Ms. Brown's credibility and accepted and accommodated most of her alleged symptoms.
An ALJ's credibility determinations "are entitled to special deference because the ALJ is in a better position than the reviewing court to observe a witness," but those determinations "are not immune from review."
The ALJ found Ms. Brown not entirely credible because she "made it clear that she was not interested in individual therapy" and "used old medications that she was told that she should not take, and has not been taking her prescribed medication." "The ALJ may deem an individual's statements less credible if medical reports or records show that the individual is not following the treatment as prescribed."
First, "mental illness . . . may prevent the sufferer from taking her prescribed medicines or otherwise submitting to treatment."
Next, Ms. Brown argues that the ALJ improperly invoked her activities of daily living as a basis for his adverse credibility determination. The ALJ opined that he didn't find Ms. Brown's testimony regarding her limitations credible because "she testified that she could care for her young son, clean the house, cook, drive, and she traveled to Florida for three weeks."
"Although it is appropriate for an ALJ to consider a claimant's daily activities when evaluating their credibility . . . this must be done with care . . . [because] a person's ability to perform daily activities, especially if that can be done only with significant limitations, does not necessarily translate into an ability to work full-time."
The ALJ didn't acknowledge the differences between the demands of Ms. Brown's care for her infant son, housekeeping, cooking, driving, and travel with the demands of a full-time job or Ms. Brown's limitations in performing these activities. For example, the ALJ found that Ms. Brown's ability to care for her infant son undermined her allegations of disability. But the ALJ didn't acknowledge Ms. Brown's testimony that her family regularly cared for her child when her symptoms made it difficult for her to do so. Furthermore, the court of appeals has criticized ALJs' equating care for an infant with an ability to perform full-time work because "taking care of an infant, although demanding, has a degree of flexibility that work in the workplace does not."
Because this matter is being remanded on another issue, the court needn't reach any conclusions as to whether these problems render the ALJ's credibility determination patently wrong. On remand, the ALJ should re-examine the credibility determination and ensure that the finding is reasoned, supported, and based only on the proper factors. See
Ms. Brown's final argument is that the ALJ didn't properly address psychologist Charles Auvenshine's testimony about her ability to work. Ms. Brown complains that the ALJ didn't confront Dr. Auvenshine's testimony that Ms. Brown's mental impairments would interfere with her ability to complete a full eight-hour day of work. Dr. Auvenshine initially testified that symptoms associated with depression "would interfere with her doing a full and complete day of work." The ALJ questioned Dr. Auvenshine to determine whether his testimony was that she wouldn't be able to work even with restrictions addressing Ms. Brown's limitations, asking: "are you saying she's not going to be able to function in a 40 [hour] week, five day job[?]" Dr. Auvenshine responded, "[n]o, I think she can function." Furthermore, while the ALJ didn't address this issue in his opinion, he extensively discussed Dr. Auvenshine's testimony in his decision. Therefore, the court is satisfied that the ALJ properly considered Dr. Auvenshine's opinion. See
Ms. Brown also contends that the ALJ erred by not presenting Dr. Auvenshine's testimony that Ms. Brown shouldn't perform assembly line work to the vocational expert. Dr. Auvenshine testified that assembly line work "would not be the best choice" for Ms. Brown because of it implies working with others on the assembly line. "Working independently would be a better choice," Dr. Auvenshine opined.
While the ALJ didn't specifically include Dr. Auvenshine's reference to assembly line work in the hypothetical presented to the vocational expert, he properly accommodated that opinion by including the limitation that formed the basis for Dr. Auvenshine's concern about assembly line work: the need for some independence at work. Furthermore, while the court of appeals "generally ha[s] required the ALJ to orient the VE to the totality of a claimant's limitations," if, as here, the record shows that the vocational expert "heard testimony directly addressing those limitations," a court can "assume[] a [vocational expert's] familiarity with a claimant's limitations, despite any gaps in the hypothetical."
For the foregoing reasons, the court VACATES the Commissioner's decision and REMANDS this case for further proceeding consistent with this opinion.
SO ORDERED.