KARLA R. SPAULDING, District Judge.
THE UNITED STATES DISTRICT COURT:
This cause came on for consideration without oral argument on the Complaint filed by Hector Figueroa seeking review of the final decision of the Commissioner of Social Security denying his claim for social security benefits, Doc. No. 1, the answer and certified copy of the record before the Social Security Administration ("SSA"), Doc. Nos. 11, 12, and the parties' memoranda, Doc. Nos. 15, 18. This matter has been referred to the undersigned for issuance of a Report and Recommendation.
In 2008, Figueroa filed applications for benefits under the Federal Old Age, Survivors and Disability Insurance Programs ("OASDI"), 42 U.S.C. § 401 et seq., and under the Supplemental Security Income for the Aged, Blind and Disabled Program ("SSI"), 42 U.S.C. § 1381, et seq. (sometimes referred to herein as the "Act"). He alleged in the OASDI application that he became disabled on September 2, 2007, R. 129, and in the SSI application that he became disabled on October 27, 2007, R. 125.
After his applications were denied initially and on reconsideration, an administrative law judge ("ALJ") held a hearing at Figueroa's request. Figueroa, represented by an attorney, and a vocational expert ("VE") testified at the hearing. R. 25-41.
After considering the testimony and the medical evidence presented, the ALJ determined that Figueroa was insured under OASDI through December 31, 2011. R. 14. The ALJ found that Figueroa had not engaged in substantial gainful activity since the alleged disability onset date of October 27, 2007. Id.
The ALJ concluded that Figueroa had bipolar disorder, which was a severe impairment. R. 14. This impairment would result in moderate difficulties in activities of daily living, social functioning and concentration, persistence or pace with one or two episodes of decompensation of extended duration. R. 15. The ALJ found that Figueroa's impairments or combination of impairments did not meet or equal any listed impairment. R. 14.
The ALJ found that Figueroa had the residual functional capacity ("RFC") to do the following:
The ALJ concluded that Figueroa had no past relevant work. R. 18. Based on the testimony of the VE, the ALJ also concluded that there were jobs available in the national economy that Figueroa could perform. R. 19. Therefore, the ALJ concluded that Figueroa was not disabled. Id.
Figueroa sought review of the ALJ's decision by the Appeals Council. R. 7. On March 8, 2012, the Appeals Council issued a decision finding no basis to change the ALJ's decision. R. 1-3.
Figueroa seeks review of the Commisioner's decision by this Court.
Figueroa having exhausted his administrative remedies, the Court has jurisdiction to review the decision of the Commissioner pursuant to 42 U.S.C. § 405(g), as adopted by reference in 42 U.S.C. § 1383(c)(3). A court's review of a final decision by the SSA is limited to determining whether the ALJ's factual findings are supported by substantial evidence, Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (per curiam) (citations omitted), and whether the ALJ applied the correct legal standards, Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988).
After a thorough review of the record, I find that the facts are adequately stated in the parties' memoranda and in the ALJ's decision. Accordingly, I will only summarize facts necessary to address the issues raised in order to protect Figueroa's privacy to the extent possible.
Figueroa was born in 1968. R. 129. He had previously worked as a chef in a restaurant he owned and as an electrical engineer. R. 29.
Figueroa explained to the ALJ that after his mother died in October 2007, he began hearing voices that, among other things, convinced him to close his restaurant. R. 29, 198. He withdrew, refusing to answer the telephone. He eventually slept on the street. When he was arrested in South Carolina for trespassing, his sister found him, and he received treatment at Park Place Behavioral. R. 30-31, 398-99. Thereafter, he continued to have episodes in which he heard voices that gave him instructions what to do. R. 32. As a result of these events, he lost his restaurant, his home, his vehicles and his personal belongings. R. 33-34, 198.
Medical records confirm that Figueroa was treated at Park Place Behavioral Healthcare ("Park Place") beginning on October 27, 2007. R. 287. The initial diagnosis was schizoaffective disorder with a global assessment of functioning ("GAF") score of 35.
Figueroa was again admitted to Park Place on January 4, 2008. R. 272. He reported having hallucinations. He was incoherent with aggressive behavior. Id. He stated, "`I'm God.'" R. 279. The diagnosis was bipolar I manic and alcohol dependence, with a GAF score of 25. R. 277. Figueroa was treated with medication and discharged on January 9, 2008. R. 282-83.
Figueroa continued outpatient treatment at Park Place through March 2011. R. 264-70, 322-36, 358-68, 402. On February 1 and March 6, 2008, the treatment provider assessed his GAF score as 45.
Written reports of contact with family members reflect that, in 2008, Figueroa could drive to the store and purchase items he needed. He was able to care for his personal needs. He could remember what he needed to do. He was able to pay his bills. He still had bouts of feeling sad and depressed when he "seems out of it for a bit," but not as bad as previously. R. 198.
Two psychologists prepared mental RFC assessments after review of Figueroa's records. In the first of these assessments, called a Psychiatric Review Technique ("PRTF"), the psychologist determines a claimant's mental impairments and rates the functional limitations arising from the impairments as none, mild, moderate, marked or extreme.
On March 18, 2008, Cheryl Woodson, Psy.D., opined in the PRTF that Figueroa would have mild limitations in activities of daily living and social functioning, moderate limitations in maintaining concentration, persistence or pace, and one or two episodes of decompensation, each of extended duration. R. 316. In the "Functional Capacity Assessment" of the mental RFC assessment form, Dr. Woodson wrote that Figueroa "will encounter difficulties handling complex or detailed tasks. [His] ability to attend/concentrate for extended periods on complex tasks due to his racing thoughts and ruminations. [His] ability to adhere to schedules is retained as is his ability to complete work week requirements with only a slight probability of interruption due to his psychiatric [symptoms]." R. 304.
On August 26, 2008, Bruce Hertz, Ph.D., opined in the PRTF that Figueroa would have moderate limitations in activities of daily living, social functioning and concentration, persistence or pace with one or two episodes of decompensation each of extended duration. R. 351. In the summary conclusions section of the mental RFC assessment form, Dr. Hertz checked boxes dealing with Figueroa's ability for sustained concentration and persistence. He indicated, among other things, that Figueroa would not be significantly limited in the ability to carry out very short and simple instructions, perform activities within a schedule and maintain regular attendance, and sustain an ordinary routine without special supervision, and that Figueroa would have moderate limitations in the ability to work a normal workday and workweek without interruptions from psychologically based symptoms. R. 337-38. In the "Functional Capacity Assessment" portion of mental RFC form, Dr. Hertz wrote as follows:
R. 339.
After these mental RFC assessments were prepared, records from Park Place reflect that Figueroa's condition waxed and waned. On September 17, 2008, Figueroa reported having a visual hallucinations three weeks earlier. He had a GAF score of 48. R. 359. On January 9, 2009, his mood was euthymic, with a GAF score of 50. R. 361. On March 9, 2009, Figueroa reported some cycles of depression that were getting worse. The treatment provider noted that his mood was mildly depressed. The GAF score was 57.
On January 14, 2010, Figueroa reported that he had again had auditory and visual hallucinations. The GAF score was 50. R. 367. On February 25, 2010, Figueroa reported that he was more depressed. He had experienced hallucinations 3 to 4 days the previous month. The treating professional observed that Figueroa was unshaven and his grooming had decreased. The GAF score was 48. R. 368.
Joseph N. DeLuca, M.D., Ph.D., examined Figueroa on March 15, 2010. Figueroa reported visual and auditory hallucinations despite taking medication. He denied using alcohol. R. 393. Dr. DeLuca administered a number of psychological tests. R. 395. A Beck Depression Inventory — II test confirmed that Figueroa was depressed. R. 393. Dr. DeLuca observed upon examination that Figueroa's cognitive functioning was adequate, but there was evidence of disturbance in thought content manifested by paranoid delusional thinking. No deficits were noted in memory, concentration or orientation, and impulse control and social judgment appeared to be within normal limits. R. 394. Dr. DeLuca opined that Figueroa had a schizo-affective disorder with a GAF score of 30. He indicated that Figueroa "has significantly impaired social functioning, task persistence, concentration difficulties, and deterioration in work-like settings." R. 395. Dr. DeLuca prepared a mental RFC questionnaire. He indicated that Figueroa would have poor to no ability to make occupational adjustments. R. 396.
Thereafter, Figueroa continued treatment at Park Place. On April 28, 2010, Figueroa was isolating himself. His GAF score was 48. R. 383; see also R. 198. On May 6, 2010, Figueroa reported that he was a bit better. The treating professional observed that he had mild anxiety, with a GAF score of 52. R. 384.
At the time of the ALJ's hearing July 2010, Figueroa was living with his father. R. 35. He kept mostly to himself. R. 34. He still heard voices once in a while. R. 35.
In March 2011, Figueroa reported being depressed but he did not have hallucinations. His GAF score was 49. R. 402. Figueroa stated he was "ok" in April 2011. His GAF score was 45. R. 403. In May 2011, he reported that he was not good. His affect was observed to be dysphoric with a GAF score of 45. R. 404. In June 2011, he was observed to have increased anxiety, with a GAF score of 45. R. 405. In July, 2011, he reported mood swings. His GAF score remained at 45. R. 406.
At the hearing, the ALJ asked the VE to assume the following hypothetical person:
R. 39. The VE testified that this person could perform the following jobs: kitchen helper (medium, SVP 2); cleaner/housekeeper (light, SVP 2); and landscape laborer (heavy, SVP 2).
Figueroa's counsel asked the VE to assume the following additional limitations:
R. 39-40. The attorney defined "poor" as having "no useful ability to function in a particular area." R. 40. The VE testified that, with these additional limitations, there would be no work the hypothetical person could perform. Id.
Figueroa asserts two assignments of error. He contends that the ALJ erred by failing to address specifically the GAF scores contained in the Park Place medical records and certain of Dr. Hertz's findings about his functional limitations. He also contends that the ALJ did not include moderate limitations in concentration, persistence or pace in the hypothetical question to the VE or explain, explicitly or implicitly, how those limitations were accounted for in the hypothetical question. These are the only issues I will address.
In the decision, the ALJ wrote that the Park Place records did not include any assessment of Figueroa's capacity. R. 17. Figueroa contends that this is inaccurate because the GAF scores in those records were, effectively, assessment of his mental capacity. The Commissioner contends that what the ALJ meant was that the Park Place records did not contain a mental RFC assessment of the type completed by Drs. Woodson, Hertz and DeLuca. She argues, further, that the ALJ implicitly acknowledged the GAF scores in the statement that "`assessment notes of cognitive function, memory, concentration, attention, and judgment are in the record.'" Doc. No. 18 at 8 (quoting R. 17).
In Winschel v. Commissioner of Social Security, 631 F.3d 1176 (11th Cir. 2011), the United States Court of Appeals for the Eleventh Circuit reversed the decision of the district court, in part because "the ALJ did not discuss pertinent elements of the examining physician's medical opinion" contained in his treatment notes. Id. at 1179. GAF scores are part of the treating professionals' opinions contained in the Park Place treatment notes, but they were never mentioned by the ALJ. While a GAF score is only a snapshot of a person's functioning at a given moment in time, Figueroa's GAF scores viewed over the continuum of his treatment at Park Place show that he consistently had serious limitations in functioning, with some remission in 2009 during which he still had moderate limitations in functioning.
Records from Figueroa's only long-term treatment provider contain assessments of his functional abilities through GAF scores, which did not change significantly despite findings on various visits that Figueroa's condition had improved somewhat. Under these circumstances, the ALJ's finding that the Park Place records do not contain assessments of Figueroa's functional capacity is not supported by substantial evidence. It may be, as the Commissioner argues, that the ALJ considered the GAF scores and rejected them, "but without clearly articulated grounds for such a rejection, [the Court] cannot determine whether the ALJ's conclusions were rational and supported by substantial evidence." Winschel, 631 F.3d at 1179. Due to this deficiency, I recommend that the Court find that the first assignment of error is well taken.
The ALJ concluded that Figueroa would have moderate limitations in concentration, persistence or pace. In his analysis of this limitation, the ALJ noted that Figueroa would have difficulties with following and understanding complex or detailed instructions. R. 15. This finding was consistent with the opinion of Dr. Hertz, which opinion the ALJ gave significant weight. However, the ALJ did not discuss Dr. Hertz's additional summary conclusion as to concentration and persistence, which was that Figueroa would be limited in the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms.
Figueroa contends that the ALJ was required to include moderate limitations in concentration, persistence or pace expressly in the hypothetical question or explain how the ALJ implicitly included those limitations in the hypothetical question. This argument is based on Winschel, in which the Eleventh Circuit found that the VE's testimony could not support the ALJ's finding that Winschel could perform work available in the national economy because the hypothetical question did not include or implicitly account for moderate limitations in concentration, persistence or pace. 631 F.3d at 1181.
The Commissioner contends that Dr. Hertz translated his summary conclusions from the mental RFC form into functional limitations in Part III of that form. Dr. Hertz wrote that Figueroa "has the capacity to understand and carry out at least simple instructions and tasks," which limitation the ALJ included in both the RFC and hypothetical question.
Dr. Hertz did not, however, elaborate on or clarify his finding that Figueroa would be moderately limited in the ability to perform a normal workday and workweek in Part III of the form. The Commissioner suggests that the ALJ relied on Dr. Woodson's conclusion that Figueroa could "complete work week requirements with only a slight probability of interruption due to his psychiatric [symptoms]," R. 304, as a basis not to include this limitation in the RFC or hypothetical question to the VE. There is no support for this argument in the record. Dr. Woodson's conclusion was based on her finding that Figueroa would not be significantly limited in the ability to complete a normal workday and workweek due to interruptions from psychologically based symptoms. R. 303. In contrast, Dr. Hertz, found that Figueroa would have a moderate degree of limitation in this area. R. 338. Because Dr. Woodson's functional capacity assessment was not based on the same summary conclusion as that reached by Dr. Hertz, Dr. Woodson's functional capacity assessment in Part III of the mental RFC form she completed is not applicable to Dr. Hertz's opinion.
Under Winschel, the ALJ was obligated either to find explicitly that, despite moderate limitations in concentration, persistence or pace, Figueroa could perform a normal workday and workweek without interruptions psychologically based symptoms or explain how the RFC and hypothetical questions implicitly accounted for that limitation. Having failed to do so, the VE's testimony does not constitute substantial evidence supporting the ALJ's finding at step five of the sequential evaluation. Therefore, these assignments of error are also well taken.
Due to the errors identified by Figueroa, I respectfully recommend that the Court
Failure to file written objections to the proposed findings and recommendations contained in this report within fourteen (14) days from the date of its filing shall bar an aggrieved party from attacking the factual findings on appeal.
