ROBERT B. KUGLER, District Judge.
This matter comes before the Court on the appeal filed by Plaintiff Matthew Hancock ("Plaintiff") from the decision of the Commissioner of Social Security (the "Commissioner") denying Plaintiff supplemental security income ("SSI") pursuant to Section 205(g) of the Social Security Act ("the Act"), 42 U.S.C. § 405(g). For the reasons expressed below, the Court will vacate the Commissioner's decision that Plaintiff is not entitled to SSI, and remand the matter to the Administrative Law Judge ("ALJ").
Plaintiff protectively filed an application for SSI benefits on October 16, 2009, alleging disabilities of Anxiety Disorder and Slight Mental Impairment, beginning June 6, 2005. Tr. 13. Later, Plaintiff amended the alleged onset date to October 16, 2009. Tr. 258-59. Plaintiff's claim was denied on April 22, 2010. Tr. 13. Plaintiff's claim was denied again on reconsideration on August 2, 2010.
Plaintiff, born July 2, 1981, graduated
Dr. Kenneth Goldberg, a psychologist, evaluated Plaintiff on August 28, 2006. Tr. 264. Shortly before this evaluation, on June 16, 2006, Plaintiff underwent an EEG that was "mildly abnormal," showing that he had a "cognitive impairment." Tr. 285. Dr. Goldberg administered the Wechsler Adult Intelligence Scale — Third Edition during his evaluation of Plaintiff. Tr. 265-66. This test revealed a Verbal IQ ("VIQ") of 111, and a Performance IQ ("PIQ") of 91. Tr. 266. Dr. Goldberg noted that there was a "marked disparity between verbal and performance IQ scores," and that this was "consistent with the notion that [Plaintiff] has a cognitive problem."
Plaintiff began seeing a psychiatrist, Dr. Joel Glass, on April 17, 2006, with a diagnosis of anxiety, obsessive-compulsive disorder, learning disability, and major depressive disorder. Tr. 271. On August 1, 2008, Plaintiff reported to Dr. Glass increased anxiety and tension in his head. Tr. 291. Medications prescribed by Dr. Glass at this time included both Sertraline and Alprazolam.
On January 12, 2009, Plaintiff reported feeling worse, with increased anxiety. Tr. 301. Plaintiff was feeling weaker and was still experiencing intervals of burning hot sensations of the nerves.
On December 7, 2009, Dr. Glass filled out a psychiatric report in which he indicated that Plaintiff could: recall words immediately and after five minutes; recall contents from earlier in the session, events of the past week, and long term events; spell the word "world" forwards and backwards; and track conversation. Tr. 272. He also noted that Plaintiff was preoccupied, anxious, and paralyzed by anxiety, Tr. 274-75, but that he had not had any panic attacks recently, Tr. 273. Dr. Glass rated Plaintiff as "limited" in the following work-related categories: understanding and memory, sustained concentration and persistence, social interaction, and adaptation. Tr. 274.
Plaintiff continued to see Dr. Glass after applying for SSI. On January 4, 2010, Dr. Glass noted that Plaintiff still felt "wound up" and complained of head pressure and abdominal heat. Tr. 354. On April 1, 2010, Plaintiff still had head pressure and body heat, and continued taking Alprazolam, Propanolol, Seroquel, Mirtaziprine, and Lexapro.
On May 16, 2011, Dr. Glass completed a Mental Impairment Medical Source Statement ("MIMSS"). Dr. Glass reported that side effects of Plaintiff's medication were drowsiness, lethargy, and fatigue, and indicated that they would be mildly troublesome for up to 33% of an eight hour workday. Tr. 348-49. Plaintiff's prognosis was "unlikely to improve." Tr. 349. Regarding Plaintiff's signs and symptoms, Dr. Glass noted the following: decreased energy; blunt, flat or inappropriate affect; generalized persistent anxiety; mood disturbance; persistent disturbances in mood or affect; apprehensive expectation; recurrent obsessions or compulsions which are a source of marked distress; emotional withdrawal or isolation; manic syndrome; recurrent severe panic attacks manifested by a sudden unpredictable onset of intense apprehension, fear, terror and sense of impending doom occurring on the average of at least once a week; bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes; and persistent irrational fear of a specific object, activity, or situation which results in a compelling desire to avoid the dreaded object, activity or situation. Tr. 349-50.
Dr. Glass opined that the Plaintiff was unable to meet competitive standards with mental abilities and aptitudes needed to do unskilled work in the following areas: remembering worklike procedures; maintaining attention for a two hour segment; maintaining regular attendance and punctuality within customary, usually strict tolerances; sustaining an ordinary routine without special supervision; making simple work-related decisions; completing a normal workday and workweek without interruptions from psychologically based symptoms; performing at a consistent pace without an unreasonable number and length of rest periods; accepting instructions and responding appropriately to criticism from supervisors; getting along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes; responding appropriately to changes in a routine work setting, and dealing with normal work stress. Tr. 350. Dr. Glass indicated that Plaintiff was seriously limited, but not precluded, from performing unskilled work in the following areas: understanding and remembering very short and simple instructions; carrying out very short and simple instructions; working in coordination with or in proximity to others without being unduly distracted; asking simple questions or requesting assistance; and being aware of normal hazards and taking appropriate precautions. Tr. 350.
With regard to all jobs, Dr. Glass indicated that Plaintiff was unable to meet competitive standards for interacting appropriately with the general public, and maintaining socially appropriate behavior. Tr. 351. Regarding Plaintiff's ability to do semiskilled and skilled work specifically, Dr. Glass opined that Plaintiff was unable to meet competitive standards in all categories because of his anxiety, obsessive-compulsive disorder, and his learning disability. Tr. 351. Dr. Glass indicated that Plaintiff's learning disability was based on his V IQ of 111, and his PIQ of 91, as well as an abnormal EEG. Tr. 351.
Furthermore, Dr. Glass noted that Plaintiff had marked limitations in maintaining social functioning, and in concentration, persistence, or pace. Tr. 352. Plaintiff had a medically documented history of a chronic organic mental, schizophrenic, or affective disorder of at least two years' duration that has caused more than a minimal limitation of ability to do any basic work activity, with symptoms or signs currently attenuated by medication or psychosocial support, and a current history of one or more years' inability to function outside a highly supportive living arrangement with an indication of continued need for such an arrangement.
Dr. Glass completed a Medical Listing Questionnaire on June 18, 2011. Tr. 361. In this questionnaire, he indicated that Plaintiff's impairments of bipolar disorder and a learning disability met the criteria of Medical Listing 12.02. Tr. 361. He also noted that Plaintiff had been suffering from depression since December 2003, without treatment until April 17, 2006. Tr. 362.
On May 21, 2011, Plaintiff had an unremarkable, nonenhanced MRI on the brain. Tr. 360.
Plaintiff testified at his June 28, 2011 hearing before the ALJ. Plaintiff testified that concentrating too long gives him anxiety that builds up and causes fatigue. Tr. 36. Plaintiff's anxiety became "really, really bad in September of 2008." Tr. 32. At that point, he began experiencing constant anxiety attacks or panic attacks, at which point he was put on lots of medications. Tr. 32. He testified that he is taking the "maximum amount of tranquilizers that you can." Tr. 34.
Plaintiff testified that he does chores around the house, but that he can only perform them for one to two hours, "and then I need to take time off because my anxiety builds up to a point where I start feeling hot and nauseous and I, I need to go in and rest." Tr. 33. He becomes fatigued "after I do physical activities and just, just being around the house." Tr. 35. Plaintiff testified that the fatigue is on a daily basis, "because the more I do, the worse I feel." Tr. 36. At home, Plaintiff's parents and brother offer assistance and make dinner for him. Tr. 38. He occasionally shops for himself, but he does not normally go out. Tr. 37, 39. Plaintiff has a driver's license and drives a car that is insured under his father's name. Tr. 33. Plaintiff testified that he only drives 15 to 20 minutes from home because he is worried he might experience symptoms and need to get picked up. Tr. 34-35. He starts to feel hot and nauseous and experiences fatigue due to anxiety and increased heart rate. Tr. 35.
Medical Consultant Jane Shapiro completed a Psychiatric Review Technique ("PRT) on April 21, 2010. Tr. 310. She determined that Plaintiff had a medically determinable impairment under Section 12.02 of a mild learning disability, Tr. 311, Section 12.04 for Affective Disorders, and Section 12.06 for Anxiety-Related Disorders, Tr. 310. However, a later, July 20, 2010 PRT completed by Dr. Burstein only indicated a medically determinable impairment under Section 12.06 of an anxiety disorder. Tr. 339.
District court review of the Commissioner's final decision is limited to ascertaining whether the decision is supported by substantial evidence.
Nevertheless, the reviewing court must be wary of treating "the existence vel non of substantial evidence as merely a quantitative exercise" or as "a talismanic or self-executing formula for adjudication."
The Commissioner conducts a five-step inquiry to determine whether a claimant is disabled, and therefore eligible for SSI benefits. 20 C.F.R. § 404.1520(a)(4);
The ALJ determined that Plaintiff was not under a disability within the meaning of the Act since the application and alleged onset date of October 16, 2009. Tr. 13. The ALJ began his analysis by determining that Plaintiff had not engaged in substantial gainful activity since the application date. Tr. 15. At step two, without any explanation, the ALJ found that Plaintiff "has the following severe impairment: Anxiety Disorder."
Next, the ALJ determined that Plaintiff had the RFC "to perform a full range of work at all exertional levels but with the following nonexertional limitation: the claimant is unable to perform in a skilled or semi-skilled job, due to his limited ability to cope with stress."
At step four, the ALJ determined that Plaintiff had no past relevant work. Tr. 19. Finally, at step five, the ALJ determined that there are jobs that exist in significant numbers in the national economy that the Plaintiff could perform, and thus he was not under a disability as defined by the Act. Tr. 19.
At step two, the Commissioner must determine whether a plaintiff has a medically determinable impairment that is severe. 20 C.F.R. § 404.1520. Furthermore, the ALJ must consider the symptoms of both medically determinable severe
The Court agrees with Plaintiff and finds remand appropriate so that the ALJ can consider whether Plaintiff's learning disability, obsessive-compulsive disorder, bipolar disorder, and depression were severe impairments at step two. The ALJ did not make a determination as to whether any of Plaintiff's conditions besides his anxiety disorder were medically determinable or severe at step two. Instead, without any explanation, the ALJ merely opined that "[t]he [Plaintiff] has the following severe impairment: Anxiety Disorder." Tr. 15. This Court is left to piece together clues from other portions of the ALJ's decision to determine what he found regarding these mental impairments. While there is some indication that the ALJ considered some of Plaintiff's other mental impairments in formulating the RFC, he does not consider all of the alleged impairments, and, to the extent that he may have considered some of them, the ALJ's opinion is at best ambiguous in this regard.
In any event, it is clear that the ALJ determined that Plaintiff only had one severe impairment at step two. The ALJ is required to consider all relevant evidence and provide an explicit rationale for his decision.
Contrary to the Commissioner's argument that such error is harmless because the ALJ found in favor of Plaintiff at step two, the Court finds that this error is not harmless because of the ALJ's failure to consider these impairments in the formulation of RFC. If the ALJ were to have determined that any of Plaintiff's conditions besides the anxiety disorder were medically determinable, even if he found these impairments non-severe, he would still be required to consider them in formulating the RFC.
Plaintiff argues that the ALJ erred in according little weight to Dr. Glass's opinion. Pl.'s Br. 21. This Court agrees with Plaintiff that the ALJ's rejection of Dr. Glass's opinion was not supported by substantial evidence, and finds remand appropriate for reconsideration of this issue.
Firstly, the ALJ found Dr. Glass's opinions inconsistent because Dr. Glass noted that Plaintiff suffered from a learning disability, but Plaintiff's EEG was only "mildly abnormal" and a more recent MRI "directly refutes this finding." Pl.'s Br. 21. Plaintiff's June 2006 EEG was "mildly abnormal." Tr. 285. Dr. Goldberg opined that the results of the EEG were "enough for the neurologist to assess the presence of a cognitive problem." Tr. 265. In addition to the abnormal EEG, Dr. Goldberg also noted a "marked disparity" between Plaintiff's verbal and performance IQ scores, and determined that "[t]he kind of problem suggested by the neurological testing is well confirmed by the pattern of the IQ test." Tr. 267. Dr. Glass, in his Medical Listing Questionnaire, relied on Dr. Goldberg's assessment, indicating that Plaintiff had a learning disability as shown by a 20 point discrepancy between verbal and performance IQs. Tr. 361. In his MIMSS, Dr. Glass also indicated that Plaintiff had a learning disability as shown by an "abnormal EEG" and a "VIQ 111" versus a "PIQ 91." Tr. 351. While the record does indicate that a May 2011 MRI was "unremarkable," Tr. 360, an MRI is a different diagnostic exam than an EEG, and no later EEG was undertaken.
The ALJ's reliance on a single piece of evidence, the normal MRI, to reject a diagnosis of a learning disability that was based on clinical factors and an abnormal EEG, was not supported by substantial evidence.
Plaintiff next argues that the ALJ erred in finding Dr. Glass inconsistent when the doctor said that Plaintiff was preoccupied, anxious, and paralyzed by anxiety, but that he had not had any panic attacks recently. Pl.'s Br. 22. Dr. Glass's single note about panic attacks cannot properly be the basis for the ALJ to reject Dr. Glass's opinion because numerous other treatment notes confirm Plaintiff's anxiety. For example, on August 1, 2008, Dr. Glass noted increased anxiety. Tr. 291. On September 22, 2008, Dr. Glass noted "panic/anxiety constant," and on September 29, 2008 Plaintiff was "still very anxious" with stimulation. Tr. 293. On October 20, 2008, Dr. Glass noted again that Plaintiff was still very anxious, despite his medication. Tr. 294. On November 21, 2008, Plaintiff reported increased anxiety, and feeling "unbearably hot, nauseous," and on December 6, 2008 he was "still very anxious." Tr. 295-96. Dr. Glass's treatment notes continue to reference Plaintiff's anxiety into 2010, with Dr. Glass noting on January 4
Next, Plaintiff argues that the ALJ erred in finding Dr. Glass's opinion that the Plaintiff had a limited capacity for sustained concentration and persistence inconsistent with his own examination findings. Pl.'s Br. 22. Because of this inconsistency, the ALJ gave little weight to the MIMSS that Dr. Glass completed. Tr. 18. The form on which Dr. Glass indicated that Plaintiff was limited in sustained concentration and persistence asked the medical provider whether Plaintiff would be limited in his ability to: "follow simple or detailed instructions, follow[] schedules, work with others, follow a reasonable pace, sustain ordinary routine without supervision, maintain customary attendance and punctuality." Tr. 274. What the ALJ finds contradictory is Dr. Glass's report that Plaintiff was able to recall words immediately and after five minutes elapsed, that he was able to recall content from earlier in the session, as well as long and short-term events, that he was able to spell the word "world" forwards and backwards, and that he was able to track conversation. Tr. 18.
The Court finds that nothing regarding Plaintiff's ability to recall, to spell words backwards, or to track conversation, which were revealed through Dr. Glass's testing, is indicated in the areas of sustained concentration and persistence that Dr. Glass found to be limited in Plaintiff. Furthermore, Dr. Glass indicated in his MIMSS that Plaintiff would be "seriously limited, but not precluded" from understanding and remembering very short and simple instructions, and from carrying out short and simple instructions, which is consistent with the findings from his testing of Plaintiff. Tr. 351. Once again, the ALJ rejected Dr. Glass's report due to his own speculation and lay opinion, which was not based on substantial evidence.
Furthermore, Plaintiff argues that the ALJ erred in finding that Dr. Glass's treatment notes "are nearly illegible and do not provide any meaningful detail into [Plaintiff's] condition." Pl.'s Br. 23. Contrary to the ALJ's determination, this Court finds Dr. Glass's notes both legible and supportive of Plaintiff's conditions. As shown by the sampling of treatment notes provided above, a significant number of Dr. Glass's notes relate directly to Plaintiff's anxiety disorder. In fact, Dr. Glass's notes and opinions make up the majority of the medical record in this case. If the ALJ did in fact give "little weight" to the opinion of Dr. Glass, the Court wonders whose opinion the ALJ relied upon, as the ALJ did not explain as much in his decision. Plus, even if an ALJ does not find that a treating physician's opinion is entitled to "controlling weight, ... [t]reating source medical opinions are still entitled to deference." SSR 96-2p, 1996 WL 374188, at *4 (July 2, 1996). This is especially true when the physician (Dr. Glass) has treated the patient for a long period of time (nearly six years), on a frequent basis (monthly), in his specialty area (psychiatry) and his opinions are consistent with the record as a whole (specifically Dr. Goldberg's report).
Finally, the ALJ opined that Dr. Glass's "assessments are simply inconsistent with [Plaintiff's] mental feat of graduating
For the foregoing reasons, the Court will vacate the Commissioner's final decision and remand the matter for further proceedings consistent with this Opinion. An appropriate order shall enter.