JACOB P. HART, Magistrate Judge.
Andre Westbrook brought this action under 42 USC §405(g) to obtain review of the decision of the Commissioner of Social Security denying his claim for Supplemental Security Income. He has filed a Request for Review to which the Commissioner has responded. As set forth below, I will direct that this matter be remanded for a determination regarding his ability to walk and/or stand which is consistent with the medical and other evidence, and to obtain additional vocational expert testimony to determine whether work is available which would accommodate the new RFC assessment.
Westbrook was born on October 5, 1966. Record at 320. He left school after the ninth grade. Record at 354. He has no past relevant work within the meaning of the regulations, although he worked as a laborer in the distant past. Record at 29, 354.
In March, 2009, Westbrook was awarded SSI benefits on the basis of a major depressive disorder with psychotic features. Record at 219-231. However, his benefits were terminated in August, 2013, when he was incarcerated. Record at 349.
On January 16, 2015, Westbrook filed an application for benefits in this case. Record at 320. In it, he asserted disability as of October 10, 2006, as a result of schizophrenia, depression, anxiety, high blood pressure, gout, and disc disease. Record at 320, 353. His application was denied on May 13, 2015. Record at 245. Westbrook then sought de novo review by an Administrative Law Judge ("ALJ"). Record at 253.
A hearing was held in this case on August 29, 2017. Record at 61. In a written decision dated September 18, 2017, however, the ALJ denied benefits. Record at 18. The Appeals Council denied Westbrook's request for review, permitting the ALJ's decision to stand as the final decision of the Commissioner. Record at 1. Westbrook then filed this action.
The role of this court on judicial review is to determine whether the Commissioner's decision is supported by substantial evidence. 42 U.S.C. §405(g);
To prove disability, a claimant must demonstrate that there is some "medically determinable basis for an impairment that prevents him from engaging in any `substantial gainful activity' for a statutory twelve-month period." 42 U.S.C. § 423(d)(1). As explained in the following agency regulation, each case is evaluated by the Commissioner according to a five-step process:
20 C.F.R. § 404.1520 (references to other regulations omitted).
The ALJ determined that Westbrook suffered from the severe impairments of lumbar disc bulges, gout, and a depressive disorder. Record at 20. He found that none of these impairments, and no combination of impairments, met or medically equaled a listed impairment. Record at 21. He determined that Westbrook retained the residual functional capacity ("RFC") to engage in light work, with six hours of sitting, standing, or walking in an eight-hour workday. Record at 23. He also limited Westbrook to simple one or two-step tasks in a routine, stable, work environment with very little change and no more than occasional interaction with co-workers, supervisors, or the public.
Relying upon the testimony of a vocational expert who appeared at the hearing, the ALJ found that Westbrook could work as a bench assembler, packer, or housekeeping cleaner. Record at 29. He determined, therefore, that Westbrook was not disabled. Record at 30.
In his Request for Review, Westbrook argues that the ALJ erred in finding that he could engage in light work; wrongly assessing the evidence regarding his mental impairment; failing to include a limitation in his hypothetical questions to the vocational expert which would accommodate his moderate limitations in concentration, persistence and pace; and failing to consider medical evidence submitted before he issued his decision.
As above, in his RFC assessment, the ALJ decided that Westbrook could engage in light work with six hours of either sitting, standing, or walking. Westbrook argues that this was inconsistent with the evidence regarding his impairments of the feet and legs.
Initially, the ALJ found that Westbrook's "frequent complaints of right ankle pain", frequent ankle injections, and use of Percocet "underscore[d] the intensity" of his ankle pain. Record at 26. He noted that Westbrook used a right ankle orthotic boot, and walked with a cane. Record at 25, 26. Nevertheless, the ALJ went on to explain that an absence of inpatient hospitalizations or frequent emergency room visits to address ankle pain "suggest[ed] less intense and persistent symptoms managed with more conservative treatment." Record at 26. He concluded that Westbrook was capable of a "reduced but greater than basic" range of exertion.
This reasoning is not entirely satisfactory. An absence of hospitalizations or emergency care might be sufficient to show that Westbrook was not rendered completely unable to walk by his ankle impairment. However, it is not strong support for a finding that he was capable of walking and/or standing six hours every workday, given his "intense" ankle pain, and frequent treatment with orthotics, injections and narcotics.
Also, the ALJ's conclusion was based on several patent mistakes of fact. After finding that Westbrook was capable of a "reduced but greater than basic" range of exertion, the ALJ explained: "This is consistent with reports of the claimant playing basketball, trying to walk to the store in a regular day, and testimony of walking three to four
The Commissioner argues that this mistake on the part of the ALJ was not meaningful, because the evidence otherwise supported his RFC findings. However, it is clear that the ALJ was influenced by Westbrook's supposed ability to walk for three of four hours at a time. He repeated this erroneous quotation in three places in his decision. Record at 21, 24, 26. This is not surprising; if Westbrook had really testified that he could walk what amounts to six or nine miles, his claims of limitation would have been severely undermined. However, this was not his testimony.
Further, although the ALJ found Westbrook's gout to be a severe impairment, he wrote that "the record [did] not include medical evidence of acute gout flares during the relevant period, suggesting stability." Record at 26. This was inaccurate. Although many records regarding gout date from 2012, medical records prepared by Lawrence Kasson, DPM, a podiatrist, also showed "gout/arthritis flares," usually in the right ankle, on September 2, 2016, November 18, 2016, January 13, 2017, and February 17, 2017. Record at 885, 883, 882, 881. Objective signs included edema.
The medical records also show that Westbrook suffered from foot impairments other than gout. On July 19, 2012, podiatrist Steven Boc, D.P.M., wrote that Westbrook had flat feet "with biomechanical problems contributing to the tenosynovitis and tendinitis." Record at 891. Orthopedist notes from August, 2016, also diagnosed Westbrook's flat feet as severe enough to require an orthotic to correct pronation. Record at 886, 887.
Further, the ALJ noted that objective testing in August, 2015, suggested Westbrook suffered from bilateral tarsal tunnel syndrome. Record at 25, 909. The ALJ wrote that these findings "carr[ied] less significance without direct evidence of contemporaneous clinical findings." In fact, however, there were contemporaneous clinical findings. In the same September 14, 2015, treatment note, in which he reported the test results, Dr. Boc observed "right leg numbness/tingling", and that "pain is present in the medial aspect of the right ankle," as well as a positive Tinel's signal on both tibial nerves. Record at 909. Tarsal tunnel syndrome causes "pins and needles" and pain, down the back of the leg or in the sole of the foot or inside the ankle.
Thus, there is a lack of substantial evidence supporting the ALJ's conclusion that Westbrook could walk for six hours, or stand for six hours, in an eight-hour workday. For that reason, I will order that the matter be remanded so that the ALJ can revise the RFC assessment to reduce the number of walking and standing hours to a level consistent with the medical and other evidence, and can then obtain additional vocational expert testimony to determine whether work is available which would accommodate the new RFC assessment.
Westbrook argues that the ALJ's evaluation of the evidence of mental illness was defective. He maintains that, along with depression, his paranoia/psychosis and memory impairments should have been found to constitute severe impairments. He also claims that the ALJ erred in failing to give great weight to the opinions of his treating mental health practitioners at CATCH Behavioral Health and Intellectual Disabilities Center; psychiatrist Theodore Wasserman, MD, and therapist Nina Gorman. As a related matter, Westbrook also maintains that the ALJ's finding that his mental health records showed "generally unremarkable findings" was inconsistent with the record.
It is difficult to say whether the ALJ erred in failing to identify paranoid psychosis or memory impairments as separate mental impairments. The Commissioner argues that they are actually "symptoms rather than impairments." Commissioner's Brief at 6.
Crucially, the ALJ did not ignore evidence in the record regarding psychosis and memory impairments. He acknowledged complaints of auditory hallucinations and visions reported by Dr. Wasserman and Dorothy Latella-Zakhireh, Psy. D., the consulting examiner; and delusions reported to Kathryn Lester, Psy.D. and G. Peter Gliebus, MD, who conducted neuropsychological examinations of Westbrook. Record at 26, 27. He also mentioned Dr. Wasserman's rule-out diagnosis of paranoid schizophrenia. Record at 26. As to memory loss, the ALJ described in detail testing Westbrook underwent on February 8, 2016, by Drs. Carol Lippa and David Libon, of the Drexel University Neurosciences Institute, which indicated grave memory problems suggesting "possible dementia." Record at 26, 809-812. Because the ALJ discussed both psychosis and memory impairment in detail, even if he erred in failing to find them to be separate, severe, impairments, the error was not meaningful.
In the Medical Source Statement they completed, Dr. Wasserman and Ms. Gorman reported that Westbrook was not a malingerer, and that he suffered from many symptoms of mental illness, including mood disturbance, delusions or hallucinations, illogical thinking or loosening of associations, and paranoia or inappropriate suspiciousness. Record at 799-780. They opined that he would miss work more than three times a month, and that he would have difficulty working at a regular job on a sustained basis, because working had caused an increase in paranoid symptoms in the past. Record at 801. They indicated that Westbrook had moderate restrictions in his activities of daily living, marked difficulties in maintaining social functioning, and often had deficiencies in concentration. Record at 802.
The ALJ gave this report, which he attributed solely to Ms. Gorman, "little weight," calling it inconsistent with evidence that, in April and May, 2015, Westbrook attended only one therapy session a month "with generally unremarkable clinical findings." Record at 27,
Perhaps, there is also some basis for Westbrook to dispute the ALJ's description of his history as "unremarkable" even though it includes hallucinations of a witch, and an incident where he punched his nephew at a family event for flirting with his girlfriend. Record at 658 (treatment note of April 24, 2015), 659 (treatment note of March 31, 2015). A May 13, 2015, treatment note also evidences continued hallucinations, as it notes that Westbrook was "questioning/battling voices and visions." Record at 657.
Nevertheless, in the relevant period, Westbrook was never hospitalized or treated at a partial hospitalization program for his mental illness. Indeed, he told Dr. Latella-Zakhireh, the consulting mental health expert, that he had never had a psychiatric hospitalization. Record at 785. He also told Dr. Latella-Zakhireh that he had therapy only twice per month.
Further, as the ALJ discussed, at Westbrook's initial evaluation by Dr. Wasserman on February 6, 2015, he was noted to be fully oriented, with an appropriate and "well-modulated" affect. Record at 651. At therapy sessions, he was described as depressed and anxious, but not delusional, and often with a normal affect and appearance. Record at 657, 658, 659, 662, 663, 664.
Dr. Latella-Zakhireh, who met with Westbrook on April 27, 2015, described him as not fully oriented, with mildly impaired concentration and memory, and poor cognitive functioning. Record at 788. Nevertheless, she also wrote that Westbrook was cooperative, and guarded but relatively friendly, with "fairly appropriate" interpersonal skills. Record at 787. He showed no evidence of hallucinations or paranoia at that time.
Moreover, Dr. Latella-Zakhireh indicated in a functional assessment that Westbrook was only mildly restricted in the ability to understand, remember or carry out simple instructions, and moderately limited the ability to make simple work-related decisions; to understand, remember or carry out complex instructions; and to make complex work-related decisions. Record at 791. He was mildly to moderately restricted in his ability to interact appropriately with the public, supervisors, and co-workers, and was moderately restricted in his ability to respond to changes in the work setting. Record at 792. Similarly, Richard Williams, Ph.D., a reviewing agency expert, opined that Westbrook was only mildly restricted in his activities of daily living, and moderately limited in concentration and in maintaining social functioning. Record at 236.
What is more, Westbrook underwent follow-up neuropsychological testing at Drexel in March, 2017, conducted by Drs. Lester and Gliebus. Record at 969. There, Westbrook was found to have expended "suboptimal effort," so that the cognitive test results were invalid. Record at 971. Apparently, "similar effort concerns" were raised during the February, 2016, testing "on an embedded measure of performance validity."
Undoubtedly, the record contained evidence of a severe and chronic mental health disorder. Nevertheless, substantial evidence supported the ALJ's conclusion that Westbrook's mental health permitted him to work with certain relevant restrictions.
At the hearing, the ALJ asked the vocational expert hypothetical questions positing an individual who required "simple one or two-step tasks in a routine, stable work environment with very little change." Record at 66. This was consistent with the limitations he imposed in his RFC assessment. Record at 23.
Relying upon
Even after
In another case, a limitation to "routine, repetitive tasks" was found adequate.
On the other hand, in
Since the ALJ in this case posed a hypothetical question including limitations which went beyond the precise language at issue in
On September 13, 2017, several weeks after Westbrook's August 29, 2017, hearing, but five days before the ALJ issued his decision, Westbrook submitted a letter report dated September 5, 2017, which was authored by Ms. Gorman, his therapist, and Farrell Lines, MD, a treating psychiatrist at CATCH. Record at 60. The letter did not report any striking new event or diagnosis, but it clarified the view of Westbrook's treating mental health professionals as to his history, symptoms, and daily functioning.
The regulations require that — except in very specific circumstances which do not apply here — a claimant either submit or inform the agency about all relevant evidence at least five business days before the date of a hearing before an ALJ. 20 CFR §416.1435, SSR 17-4p. Six days before the hearing, Westbrook's counsel submitted a letter to the ALJ which stated, in relevant part:
We respectfully request the record remain opening [sic] pending receipt of this material. Record at 473.
The Commissioner argues that this notice did not compel an ALJ to accept after-submitted evidence. It did not mention the report from Ms. Gorman and Dr. Lines; indeed, it did not mention any specific evidence at all. It simply listed providers. In any event, the CATCH report at issue here was created after the hearing, and did not concern any specific testing or events which occurred prior to the hearing. It is clearly not a "record" which was "requested but not yet received" by the hearing date. In other words, it could not have been — as Westbrook has described it in his brief — an "outstanding record" because it did not exist at the time he wrote to the ALJ The ALJ was not required to consider it under 20 CFR §416.1435.
In accordance with the above discussion, I will direct that this matter be remanded for a finding as to Westbrook's ability to walk and/or stand which is consistent with the medical and other evidence, and to obtain additional vocational expert testimony to determine whether work is available which would accommodate the new RFC assessment.
