ARTHUR J. BOYLAN, Chief Magistrate Judge.
The matter is before this Court, United States Chief Magistrate Judge Arthur J. Boylan, for a report and recommendation to the District Court on the parties' cross-motions for summary judgment.
Plaintiff filed applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") on October 10, 2008, alleging disability from mental illness beginning September 14, 2007. (Tr. 180-191, 308.)
The Court will briefly summarize Plaintiff's earlier medical records, and prior to the alleged closed period of disability. The medical records begin in September 2006, when Plaintiff was hospitalized for several days with paranoia and depression, lack of sleep and inability to function. (Tr. 438-42, 443-52.) There were several contributing factors to Plaintiff's condition: stress of her father dying, the pregnancy of one of her daughters, and the fact that Plaintiff was taking a large dose of diet pills. (Tr. 438-39.) On September 19, 2006, Plaintiff began seeing Dr. Colleen Daniewicz at Allina Medical Clinic Woodbury for counseling. (Tr. 555-56.) In addition to her current stressors, Plaintiff related that she was sexually abused while in a foster home at age eight. (Tr. 555.) Plaintiff had eight siblings but very little support from her family. (
Plaintiff was hospitalized again on October 9, 2006 through October 11, 2006, with increasing depression and racing thoughts (Tr. 397-98.) She was diagnosed with bipolar disorder, mixed. (Tr. 397.) Plaintiff improved on the medication Seroquel, and was then admitted to a partial hospital program, which she did not complete. (Tr. 393-98.) After this short hospitalization, Plaintiff started counseling with Social Worker Elaine Boyer-Hammond at Aspen Medical Group. (Tr. 627-28.) Plaintiff also treated with Licensed Psychologist Diana Beran at Eagan Counseling Center from January through June 2007. (Tr. 563-84, 642-47.)
Plaintiff began treating with Nurse Deborah Orman and Dr. Scott Yarosh at Psychiatric Recovery, P.A. in February 2007. (Tr. 724-35.) Plaintiff also began DBT
In October 2007, Plaintiff was on short-term disability, she filed bankruptcy, and her home was being foreclosed. (Tr. 627.) In addition to these stressors, Plaintiff was processing her childhood abuse and a longstanding abusive relationship with the father of her children. (Tr. 627-28, 665-66.) Boyer-Hammond diagnosed Plaintiff with major depressive disorder, severe, with mood congruent psychotic features and PTSD. (Tr. 625-26.)
Plaintiff underwent a consultative psychological examination with Dr. Alford Karayusuf on January 7, 2008. (Tr. 659-61.) At that time, Plaintiff was is in the recovery phase of major depression, with no further hallucinations, delusions or suicidal thoughts; and better mood, better sleep, improving attention and concentration; and hope for the future. (
In January 2008, Plaintiff underwent a neuropsychological examination with Dr. Deborah Roman at University of Minnesota. (Tr. 663-66.) Plaintiff reported persistent cognitive and memory problems. (Tr. 663.) Plaintiff had a GED, with some community college. (
Based on neuropsychological testing, Plaintiff's intelligence was estimated in the average range and most executive abilities were normal. (Tr. 664.) However, Plaintiff's behavior during testing was consistent with hyperactivity and poor impulse control. (Tr. 666.) Plaintiff's history and clinical presentation were consistent with PTSD and borderline personality disorder, which may have caused accelerated thinking and distractibility, abnormal memory, and psychotic symptoms in times of increased stress. (
Plaintiff began improving in therapy and went back to work part-time in March 2008. (Tr. 755-62.) However, work did not go well because she was overwhelmed and made mistakes. (Tr. 718-19.) Plaintiff was facing termination in June 2008. (Tr. 715-16.) Plaintiff reported to Nurse Orman and Dr. Yarosh that she was sad and anxious, her memory was off, and she had out of body experiences (dissociation) constantly. (Tr. 715.) When Plaintiff saw Dr. Charles Depies at Aspen Medical Group on June 19, 2008, Plaintiff was taking all medications as prescribed and going to therapy, but she was frustrated at her inability to function at the same cognitive level as before her 2006 crisis. (Tr. 747.) Dr. Depies believed Plaintiff's major depression was moderate, with some suicidal risk. (Tr. 748.) Plaintiff reduced her work hours and slowly improved. (Tr. 714, 745-46.) Although Plaintiff felt she was improving, on July 15, 2008, Plaintiff's supervisor wrote to Nurse Orman about Plaintiff's work performance, requesting an opinion about a one year medical leave of absence. (Tr. 708-10.) Plaintiff was having difficulty remembering the most basic functions of her collection duties that had been an intergral part of her job since 2002. (Tr. 709.) Plaintiff had taken two leave of absences: January 22, 2007 through Feb. 21, 2007, and September 14, 2007 through February 19, 2008. (
On August 7, 2008, Dr. Depies noted that Plaintiff was emotionally stable most of the last month, and that reducing her employment to twenty hours a week helped, but she was likely to go on medical leave due to her poor work performance. (Tr. 743-44.) Dr. Depies opined that Plaintiff's major depression was currently moderate. (Tr. 743.)
Plaintiff's home was sold through foreclosure in September 2008, and then her financial stress became more manageable. (Tr. 906, 741-42.) On October 13, 2008, Dr. Depies noted that Plaintiff's mood changed quickly when she focused on the past, and she needed to learn to focus on the present and regulate her emotions. (Tr. 739.) Dr. Depies diagnosed PTSD and major depression, currently mild. (
Plaintiff underwent a consultative examination with Dr. Dustin Warner on December 16, 2008, at the request of the Social Security Administration. (Tr. 812-15.) Plaintiff said she was probably depressed for ten years before she crashed in 2006. (Tr. 812.) Plaintiff lived with her three daughters, and she could do housework and grocery shop. (Tr. 813.) She spent four hours a week in DBT therapy. (
On mental status examination, Plaintiff was alert and oriented. (Tr. 813.) Her speech was clear and goal directed. (Tr. 814.) She was cooperative, and thought processes were intact. (
Dr. Warner diagnosed major depressive disorder and PTSD. (Tr. 815.) He opined that Plaintiff had the mental capacity to understand, remember and follow simple instructions, sustain attention and concentration to carry out tasks with reasonable persistence and pace, and respond appropriately to brief and superficial contact with coworkers and supervisors. (
Near the end of December 2008, Nurse Orman and Dr. Yarosh noted Plaintiff's mood was good; and she was functioning better with less PTSD symptoms. (Tr. 861.) About a week later, when Dr. Depies saw Plaintiff, she was emotionally stable and getting rest and exercise to help focus on her recovery. (Tr. 834-35.) Plaintiff's emotional and cognitive improvement continued through March 2009. (Tr. 860, 876, 889-92.) Plaintiff was thinking about going back to work when her classes were finished. (Tr. 876, 887.) Plaintiff was taking better care of herself and getting in-home family therapy. (Tr. 883-84.) She still had good days and bad days. (Tr. 875.) In May 2009, Plaintiff was emotionally stable, and Dr. Depies diagnosed PTSD and major depression in partial remission. (Tr. 881-82.)
Dr. Pathak completed a "Medical Assessment of Ability to Do Work-Related Activities (Mental)" form regarding Plaintiff, indicating the opinions expressed in the form were applicable from July 2007 through May 2009. (Tr. 871-73.) Dr. Pathak checked a box on the form to indicate that Plaintiff had poor or no ability to maintain attention and concentration. (Tr. 871.) He checked boxes indicating that the following of Plaintiff's abilities were between fair and poor or none: deal with work stress; understand, remember and carry out complex job instructions; and understand, remember and carry out detailed but not complex job instructions. (Tr. 871-72.) Dr. Pathak opined Plaintiff would have between good and fair abilities to do the following: understand, remember and carry out simple job instructions; behave in an emotionally stable manner; relate predictably in social situations; demonstrate reliability; relate to coworkers; and deal with the public. (
Plaintiff returned to work on June 1, 2009, starting at fifteen hours per week. (Tr. 874.) She was nervous with increased anxiety, but generally stable. (
At the hearing before the ALJ, Plaintiff requested a closed period of disability from October 1, 2007 through June 30, 2009. (Tr. 21-22.) Plaintiff worked in tax collections for the State of Minnesota, but she had been demoted two grades since returning to work. (Tr. 31-33.) Plaintiff lived with her three younger children, and she also had an adult daughter and grandchild. (Tr. 33.) Plaintiff's mental illness began in 2006 when her father was dying, her oldest daughter was pregnant, and Plaintiff was working three or four jobs to support her family. (Tr. 36.) She had worked three or four jobs for ten years. (Tr. 37.) Her mental illness started with being unable to sleep for long periods; she was anxious and had hallucinations. (Tr. 37-38.) She kept trying to work because she needed the money, but she took a one year leave of absence when her employer promised her job back after the leave. (Tr. 38.) She had been unable to do her job because she was overwhelmed with anxiety and could not focus. (Tr. 38-39.) Even with her two level demotion, she was struggling to do her job. (Tr. 39.) Plaintiff felt she might do better with one more level demotion. (Tr. 39-40.)
When Plaintiff was on medical leave from work and caring for her home and children, it was manageable. (Tr. 41.) She took her kids to school, went to group and individual therapy a total of four times a week, and studied genealogy at the library. (Tr. 42.) Previously, when she tried to go back to work in 2008, Plaintiff was anxious, not sleeping, and having flashbacks. (Tr. 41-42.) This led to her inability to concentrate and making errors. (Tr. 43.) She met with her supervisor every two weeks, and her supervisor was concerned over her poor memory and confusion. (Tr. 44.) Plaintiff also had a problem with dissociation, something she did her whole life. (Tr. 46.) Her energy level was very poor when she tried to work in 2008. (Tr. 46-47.)
Plaintiff tried to take some classes starting in January 2009. (Tr. 67.) She took a reading class, because she felt she had to relearn skills. (
Dr. Karen Butler, a clinical psychologist, then testified as a medical expert. (Tr. 48.) Dr. Butler testified that for the period from October 2007 through June 2009, Plaintiff had the RFC for simple, unskilled work with moderate standards for pace and production. (Tr. 51.) Plaintiff would also be limited to brief and superficial contact with others. (
The next witness was David Russell, who testified as a vocational expert. (Tr. 57-58.) The ALJ asked Russell a hypothetical vocational question assuming a person with the same age, education and work history as Plaintiff, who would be limited to unskilled work involving simple, repetitive tasks, with low stress, defined as no fast paced activity or high production quotas. (Tr. 62.) The individual would also be limited to brief and superficial contact with the public, coworkers and supervisors. (
For a second hypothetical question, the ALJ told the VE to assume the same person as in the first hypothetical question, but with the additional limitation that the person would be off task 20% of the time due to psychiatric symptoms. (
Plaintiff's counsel asked a fourth hypothetical question which assumed the person would have a fair to poor ability to deal with work stress or maintain attention and concentration. (Tr. 64-65.) The VE responded "a gray area [inaudible] generally not precluding employment [inaudible] probably would." (Tr. 65.) Plaintiff's counsel also asked the VE to consider a person who had no useful ability to maintain attention and concentration, but the VE's response was inaudible. (
On July 30, 2010, the ALJ issued his decision denying Plaintiff's applications for disability insurance benefits and supplemental security income. (Tr. 5-16.) The ALJ followed the five-step sequential evaluation set forth in the agency's regulations.
At the first step of the evaluation process, the ALJ determined that the claimant had not engaged in substantial gainful activity during the alleged closed period of disability. (Tr. 10.) At the second step of the process, the ALJ found that Plaintiff had severe impairments of major depressive disorder and post traumatic stress disorder. (Tr. 11.) At the third step of the evaluation, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. (Tr. 11-12.)
At the fourth step of the evaluation process, the ALJ determined that Plaintiff had the residual functional capacity to perform a full range of exertional work with the following non-exertional limitations: unskilled work involving only simple, repetitive tasks; low stress work, defined as work that does not involve fast-paced activity or high production quotas; and brief and superficial interaction with coworkers, supervisors and the public. (Tr. 12-14.) The ALJ gave the following reasons for his conclusion. Plaintiff continued doing skilled work throughout most of the closed period of disability. (Tr. 13.) Dr. Butler testified that although Plaintiff probably could not perform skilled work during the closed period without accommodation from her employer, she could perform simple, unskilled work; and Dr. Butler's opinion was consistent with Dr. Karayusuf's and Dr. Warner's opinions. (Tr. 13-14.)
The ALJ also found Plaintiff's activities of daily living during the closed period inconsistent with total disability because she cared for her three children, maintained a household, took a college class, and attended therapy. (Tr. 14.) And, Plaintiff was not hospitalized during the closed period. (Id.) The ALJ rejected Dr. Pathak's opinion of disability and Dr. Warner's opinion that Plaintiff could not tolerate work stress, because it was inconsistent with other opinion evidence and with Plaintiff's daily activities, and her improvement in a less stressful situation. (Tr. 14.)
At the fourth step of the evaluation process, based on the VE's testimony, the ALJ concluded the claimant was capable of performing past relevant work as an assembler and kitchen helper. (Tr. 14-15.) The ALJ concluded that Plaintiff was not under a disability, as defined in the Social Security Act, from October 1, 2007 through June 30, 2009. (Tr. 16.)
Review by this Court is limited to a determination of whether a decision of the ALJ is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g);
In reviewing the record for substantial evidence, the Court may not substitute its own judgment or findings of fact.
The claimant bears the burden of proving his or her entitlement to disability benefits.
Plaintiff raised three arguments in support of her motion for summary judgment. First, she argues the ALJ failed to properly weigh the medical opinions, and that the record supports granting more weight to the opinions of her treating psychologist, Dr. Pathak, and the second consultative examiner, Dr. Warner. Second, Plaintiff asserts the ALJ erred in evaluating her subjective complaints by failing to consider all of the facts related to her daily activities, ignoring the witness testimony, discounting her credibility because she was not hospitalized, and not crediting her strong work record. Third, Plaintiff contends the ALJ relied on the testimony of the VE in response to a faulty hypothetical question that did not contain all of Plaintiff's limitations from her impairments.
The regulations require the ALJ to consider every medical opinion in the record. 20 C.F.R. § 404.1527(d). Generally, more weight is given to a treating physician's opinion, because "these sources are likely to be the medical professionals most able to provide a detailed longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations...."
If the ALJ determines that the treating doctor's opinion does not warrant controlling weight, then the ALJ must consider other factors, including "any factors... which tend to support or contradict the opinion."
The ALJ discounted Dr. Pathak's and Dr. Warner's opinions that Plaintiff could not tolerate work stress during the relevant time period, but the ALJ did not discuss Dr. Pathak's opinion that Plaintiff would have a poor ability to maintain attention and concentration. Instead, the ALJ granted more weight to the opinions of the medical expert and the first consultative examiner, because the ALJ found these opinions more consistent with Plaintiff's daily activities and the fact that Plaintiff's symptoms improved significantly when she was in a less demanding and stressful position.
The Court finds Dr. Pathak's RFC opinion is consistent with Dr. Warner's opinion and supported by the conclusions from Plaintiff's neuropsychological examination, specifically her history and clinical presentation, that her PTSD and borderline personality could cause accelerated thinking, abnormal memory, and psychotic symptoms in times of stress. This is in fact what happened after Plaintiff returned to part-time work in March 2008. Plaintiff's employer wrote a letter stating Plaintiff was making many mistakes. Plaintiff's memory of the requirements for her job did not improve, even though she was given much assistance; and she could not perform the basic functions of her job, even on a part-time basis. Before Plaintiff's "breakdown" in 2006, Plaintiff's employer said Plaintiff was fast, efficient and focused at work. Nurse Orman, who treated Plaintiff regularly starting in February 2007, opined that PTSD prevented Plaintiff from working in July 2008, and she would need a leave of absence. Plaintiff took a ten month leave of absence beginning in August 2008. It is reasonable to conclude Plaintiff's symptoms would also have precluded any substantial gainful activity at that time.
It is true that Plaintiff improved with treatment and was able to care for her home and children while on her leave of absence. However, the additional stress of substantial gainful work before she had sufficiently treated her PTSD may have resulted in decompensation, as it did when she tried to return to work too soon after her leave of absences in 2007. For instance, in October 2008, Dr. Depies noted Plaintiff's mood changed quickly when she focused on the past, and she needed to learn to focus on the present. In December 2008, Nurse Orman noted Plaintiff was not depressed but still felt anxiety, and was slowly healing.
The RFC opinions of Dr. Pathak and Dr. Warner are supported by the objective findings of the neuropsychological examination and the record as a whole. Therefore, the ALJ should have granted Dr. Pathak's treating opinion controlling weight. Even if Dr. Pathak's opinion was not granted controlling weight, the length of the treatment relationship, frequency of examination; nature and extent of the treatment relationship; supportability of Dr. Pathak's opinion, and Dr. Pathak's specialization weigh in favor of granting more weight to Dr. Pathak's opinion than the opinions of a nonexamining medical expert, and Dr. Karayusuf, a consultative examiner who only examined Plaintiff once, before the end of the relevant time period. Dr. Pathak treated Plaintiff with DBT therapy for four primary symptoms: depression, anxiety, disorganization and dissociation, from February 2007 through at least June 2009. In December 2008, Plaintiff reported to Dr. Warner that she had DBT therapy four hours a week.
Dr. Pathak stated that Plaintiff may lose focus and lack attention to detail under stress, which is consistent with the record as a whole. After her severe stress reaction in late 2006 and other severe stressors in 2007, Plaintiff unsuccessfully tried to go back to work several times before taking a longer leave of absence. It was only with this ten month leave of absence that she was able to decrease her stress and improve with treatment, leading to return to a lesser skilled level of work. Dr. Pathak believes Plaintiff would have been unable to return to any substantial gainful employment before June 2009, and his opinion deserves great weight.
Plaintiff's second argument is that the ALJ erred in evaluating her subjective complaints. The Court "defer[s] to the ALJ's determinations regarding the credibility of testimony, so long as they are supported by good reasons and substantial evidence."
The ALJ's credibility analysis focused on two factors, Plaintiff's daily activities and Plaintiff's treatment. The ALJ discounted Plaintiff's credibility because she was not hospitalized during the relevant time frame, and received only conservative mental health treatment. This was in error because Plaintiff received extensive mental health treatment on an outpatient basis from multiple providers, Nurse Orman and Dr. Yarosh, Dr. Pathak, and Dr. DePies, during the relevant time period. In October 2008, Plaintiff's medications were Citalopram, Concerta, Valium and Trazadone. Concerta is prescribed for attention deficit hyperactivity disorder.
Other factors also bolster Plaintiff's credibility. As discussed above, the findings from Plaintiff's neuropsychological examination support her subjective complaint of being unable to perform substantial gainful activity during the relevant time period due to increased PTSD symptoms under stress. Plaintiff's strong work history and attempts to return to work as soon as possible are additional factors supporting Plaintiff's credibility.
The ALJ's primary reason for rejecting the credibility of Plaintiff's subjective complaints was that he found Plaintiff's daily activities inconsistent with disability. However, the ALJ did not recognize the fact that Plaintiff was able to function in caring for her children and household because she was not working and was receiving frequent mental health treatment. In a Function Report dated January 19, 2009, Plaintiff explained that she was able to care for her home and children because she forced herself to function while she was overcoming the stress from traumatic events that she suffered from for many years. (Tr. 351-58.) She spent much time in therapy, and was taking a reading class to improve her attention and concentration, and taking a budgeting class to improve her financial situation. (
Plaintiff asserts the ALJ's hypothetical question to the vocational expert did not contain all of the concrete consequences of Plaintiff's impairments on her ability to work. "Testimony from a vocational expert is substantial evidence only when the testimony is based on a correctly phrased hypothetical question that captures the concrete consequences of a claimant's deficiencies."
Based on the foregoing, and all the files, records and proceedings herein,
1. Plaintiff's Motion for Summary Judgment [Docket No. 10] be
