PATRICIA A. SULLIVAN, Magistrate Judge.
Before the Court is the motion of Plaintiff Michael D. for reversal of the decision of the Commissioner of Social Security (the "Commissioner"), denying Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under §§ 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3) (the "Act"). Plaintiff contends that the administrative law judge ("ALJ") erred (1) in rejecting the opinion of the testifying medical expert ("ME"), psychologist Dr. Norman Baldwin, who opined that one of Plaintiff's mental health impairments (personality disorder with antisocial features) meets or equals the criteria for Listing 12.08 ("personality and impulse-control disorders"); and (2) in relying instead on the state agency psychologist and psychiatrist whose file review was largely based on medical evidence developed prior to the period in issue. Defendant Andrew M. Saul ("Defendant") has filed a counter motion for an order affirming the Commissioner's decision.
The matter has been referred to me for preliminary review, findings and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Having reviewed the record, I find that Plaintiff's amendment of his date of alleged onset of disability to May 19, 2017, coupled with the ALJ's erroneous finding that "mental status examinations have generally been within normal limits," Tr. 32, among other errors, left the ALJ without substantial evidence to buttress the Step Three findings on which he relied to reject Dr. Baldwin's testimony that one of Plaintiff's impairments meets or equals Listing 12.08. Accordingly, I recommend that Plaintiff's Motion to Reverse the Decision of the Commissioner (ECF No. 11) be GRANTED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 14) be DENIED.
A "younger person" in Social Security parlance throughout the period in issue, Plaintiff's education ended after he completed the sixth grade having stayed back for four years; during childhood he was hospitalized at least once for mental health issues at Bradley Hospital. Tr. 405-12, 425-27. His adult life has been punctuated by short periods of incarceration, with extended periods of no income at all (2002 to 2008) and other periods (2009 to 2015) of earning $9,000 to $15,000 working as a laborer doing demolition and hanging sheet rock. Tr. 45-50, 290-91. Plaintiff has eight children by three women and, prior to achieving sobriety in August 2016, repeatedly engaged in violent conduct resulting in the entry of no-contact orders barring him from interacting with the mothers of his children, with some of the children, and with other family members. Tr. 409. Plaintiff's SSI/DIB applications initially alleged onset of disability on January 1, 2016; however, on the day of the ALJ hearing, he amended the alleged date of onset to May 19, 2017.
The treating record in the case begins in the aftermath of an incarceration in the summer and fall of 2016. As required by his probation conditions, Plaintiff initiated mental health/substance abuse treatment with the Providence Center in October 2016. Tr. 405. Until the end of probation in February 2017, he was seen by a qualified mental health professional, Laura Amaral, and successfully completed the treatment program. Tr. 413-17. He continued to see Ms. Amaral through August 2017. Tr. 431-35. Her treating notes reflect that he was working until his amended onset date,
On February 2, 2017, Plaintiff was seen for the first time by a Providence Center psychiatrist, Dr. Omer Cermik. Tr. 428. At his initial encounter, Dr. Cermik diagnosed major depressive disorder, post-traumatic stress disorder ("PTSD"), personality disorder with antisocial features and substance abuse in remission. Tr. 429. Dr. Cermik's initial MSE observations included many that were abnormal, including "Affect: restricted and irritable," "Mood: dysphoric upset," "Thought Process: linear, but appears superficial," "Fund of Knowledge: below average," "(+) sleep disturbance," and "Reports reduced appetite and energy level." Tr. 428. Dr. Cermik increased the dose of Seroquel and prescribed an antidepressant.
The records described above were assembled to be presented to the state agency expert file-reviewers (psychiatrist Dr. Susan Killenberg at the initial phase and psychologist Dr. Clifford Gordon at reconsideration). As of the time of presentation, Plaintiff was still alleging that he had been disabled since January 1, 2016, even though there was no treatment until October 2016 and there was reported income during 2016. The file reviewed for the initial phase by Dr. Killenberg ended with Dr. Cermik's first diagnostic encounter with Plaintiff. For most of the relevant period pertinent to her examination, there was no evidence of any mental health treatment. Significantly, Dr. Killenberg reviewed Ms. Amaral's treating notes, for example from December 14, 2016, which mention that Plaintiff was working.
In addition to what Dr. Killenberg saw, Dr. Gordon saw the records of Dr. Cermik's second and third encounters, which added the diagnosis of intellectual disability and reflect more abnormal MSE findings, despite an extra four months of treatment with Ms. Amaral. Dr. Gordon also saw the notes reflecting Ms. Amaral's appointments during those four months when Plaintiff seemed to be worsening, including losing a job because of "issues with his boss," Tr. 431. Nevertheless, Dr. Gordon adopted without change Dr. Killenberg's explanation that her opinion was based on Plaintiff "doing some work," Tr. 116, essentially copying verbatim the findings made by Dr. Killenberg. Dr. Gordon's only original contribution is his observation that Dr. Cermik did not perform cognitive testing, yet found intellectual disability;
Supported by their finding that Plaintiff was "probably working" into 2017, Tr. 143 ("Prov Ctr therapy notes suggest that clmt is doing some work"), the state agency experts agreed that Plaintiff had only mild deficiencies with understanding and memory and moderate deficiencies with the ability to attend, to adapt to change, and to relate to others. In reliance on these conclusions, they each formulated an identical residual functional capacity ("RFC"),
After the completion of the state agency file reviews until a month before the ALJ hearing (August 28, 2018), Plaintiff — regularly though January 2018 and then very intermittently — continued to treat at the Providence Center with Dr. Cermik. During this period, he had his last appointment with Ms. Amaral and began counseling with a social worker, Jennifer LaForge. Tr. 495-501, 535-47, 647-65. Also during this period, Plaintiff failed to appear for at least one appointment with Dr. Cermik. Tr. 497. In April 2018, he was discharged by the Providence Center. Tr. 647. Then he resumed treatment at the Providence Center in July 2018. Tr. 647-65.
The substantive treatment during the post-file review period reflects abnormal MSE observations by Dr. Cermik and Ms. Amaral, but not by the social worker, Ms. LaForge.
The ALJ hearing highlighted several ways in which the evidence for the post-file review period is confusing. For example, a LaForge note from January 19, 2018, reflects that Plaintiff told her he was "working full time." Tr. 535. Somewhat inconsistently, the Providence Center discharge summary (apparently prepared without renewed contact with Plaintiff) states "working part time," Tr. 647, while Plaintiff emphatically denies that he told Ms. LaForge that he was working at all and claims he emphasized that to Dr. Cermik on July 16, 2018, whose note is corroborative, "unable to work." Tr. 48, 651. The discharge summary itself is puzzling in that it appears to be based on the completion of treatment, Tr. 647-49, yet Ms. LaForge's July 2018 note indicates that the discharge was "due to noncompliance." Tr. 658. Also confusing is Plaintiff's insistence that he had appointments every two weeks with Ms. LaForge, yet the record reflects meetings approximately a month apart only in October 2017 through January 2018, after which there is a six-month gap. Tr. 68, 69-70. To explain apparent treatment noncompliance based on the paucity of appointments and resulting lapse in medication, Plaintiff testified that he avoided going to see Dr. Cermik because he believed that Dr. Cermik "put[] me down" and was trying to provoke Plaintiff to become violent. Tr. 56, 61-62.
On the day of the ALJ hearing (August 28, 2018), Plaintiff filed the amendment of his alleged onset date, changing it from January 1, 2016, to May 19, 2017. Tr. 300. During the hearing, Plaintiff's attorney stated that Plaintiff stopped working that day because of cortisone injections he started for an elbow condition. Tr. 47. Ms. Amaral's therapy notes suggest that Plaintiff was terminated from work because of "issues with his boss." Tr. 431, 434. This amendment resulted in a profound change in what is pertinent to whether Plaintiff is disabled. Dr. Killenberg's file review-based opinion was signed on April 7, 2017 — therefore, she saw nothing from the actual period of alleged disability. And Dr. Gordon's file review was completed on July 25, 2017 — therefore, he saw only one record from the period of disability (Dr. Cermik's notes from his third encounter). And while this record is mentioned in Dr. Gordon's summary, his findings are largely copied verbatim from Dr. Killenberg.
Present throughout the ALJ hearing was an SSA psychologist called as a medical expert by the ALJ, Dr. Baldwin. Tr. 44. Dr. Baldwin reviewed the entire record, heard Plaintiff's testimony and then performed an extensive examination of his own, one that extended over twelve transcript pages. Tr. 65-77. During Dr. Baldwin's questioning, Plaintiff became so agitated at being asked a question he had already answered that the ALJ asked his attorney to remove him from the hearing room and summoned security. Tr. 73-74. After completing his own questions, and testifying that his opinion was to a reasonable degree of medical certainty, in reliance not only on his review of the record but also on his observations of "Claimant's presentation at the hearing today," Tr. 78, Dr. Baldwin opined that Plaintiff's personality disorder meets the criteria for Listing 12.08, which deals with personality and impulse-control disorders. POMS DI 34001.032 (Mental Disorders). In giving this opinion, Dr. Baldwin specifically acknowledged his awareness of what the ALJ characterized as the lack of evidence "for the last eight months." Tr. 78. As to the diagnosis of PTSD, Dr. Baldwin declined to opine because of the lack of evidence and "issues as far as treatment compliance." Tr. 77. Dr. Baldwin endorsed the diagnosis of mood disorder, but did not separately discuss the Listing criteria applicable to it. He did not mention the diagnosis of intellectual disability.
The ALJ rejected Dr. Baldwin's expert opinion at Step Three
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla — that is, the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion.
If the Court finds either that the Commissioner's decision is not supported by substantial evidence, or that the Commissioner incorrectly applied the law relevant to the disability claim, the Court may remand a case to the Commissioner for a rehearing under Sentence Four of 42 U.S.C. § 405(g).
The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 416(I); 20 C.F.R. § 404.1505.
The ALJ must follow five steps in evaluating a claim of disability.
Social Security regulations establish the baseline proposition that, as non-treating state agency medical experts specializing in the diagnosis and treatment of mental health issues, all three of the opinion sources in this case (Drs. Baldwin, Killenberg and Gordon) were required to be evaluated by the ALJ in light of their "supportability" and "consistency" with the relevant medical evidence and were entitled to "more weight" based on their specialties in the diagnosis and treatment of mental health disorders. 20 C.F.R. § 404.1527;
With this proposition framing the issues, the first problem with the ALJ's decision in this case is that many, if not most, of the reasons underpinning the conclusion that the Baldwin opinion "is not supported by the record" are tainted by error.
For starters, the ALJ's foundational finding that the Baldwin opinion clashes with the treating record because "mental status examinations have generally been within normal limits," Tr. 32, ignores that all the MSEs performed by the most qualified treating source, psychiatrist Dr. Cermik, are seriously abnormal. They contain serious and troubling findings that Dr. Baldwin found to be consistent with Dr. Cermik's diagnosis of personality disorder. Similarly, the Amaral MSE performed after the amended onset date is troublingly abnormal, while her MSEs in the period leading up to the amended onset date reflect exacerbating symptoms. The ALJ's finding is accurate only as to the nonacceptable medical source, the social worker Ms. LaForge, whose MSEs are within normal limits; yet even she made abnormal findings by the last appointment.
Second, the ALJ relied heavily on Plaintiff's treatment noncompliance as a reason to ignore the Baldwin opinion. The error is exposed by Dr. Baldwin's testimony — he specifically noted that treatment noncompliance was a reason why he did not form the opinion that Plaintiff's PTSD met or equaled a Listing. Tr. 77. However, as to personality disorder, despite pervasive evidence of noncompliance, Dr. Baldwin's opinion was unequivocal that the 12.08 Listing criteria were met. Tr. 77-78. The ALJ asked Dr. Baldwin no questions about the medical significance of noncompliance for a claimant with a personality disorder, relying instead on his lay judgment. Notably, this aspect of the Baldwin opinion is consistent with nemerous cases holding that, when noncompliance is a symptom of the diagnosed impairment, its presence supports, rather than undermines, a finding of disability.
Third, the ALJ is simply wrong in finding that treating records suggest Plaintiff reported that he was working "as late as July 2018." Tr. 33. In fact, the treating records from July 2018 consistently record that Plaintiff reported that he was "unable to work" and "unemployed." Tr. 651, 658. The ALJ's reference appears to come from a portion of Ms. LaForge's notes that replicate the text of the discharge summary, which itself was not based on information provided by Plaintiff. Tr. 658. Moreover, the foundation for the discharge summary was the topic of questioning of Plaintiff during the ALJ hearing, all which Dr. Baldwin observed and incorporated into his medical opinion.
Fourth, the ALJ relies on "minimal medication adjustments" and no hospitalizations. Tr. 33. Unlike some of the other reasons, both of these are factually supported by substantial evidence. However, the conclusion that they undermine or contradict the Baldwin opinion requires medical expertise outside the purview of the ALJ's (or the Court's) capacity. That is, for these facts to amount to substantial evidence that the Baldwin opinion is unsupported requires that it be medically likely that a person suffering from a personality disorder serious enough to meet the criteria for Listing 12.08 would have been hospitalized for an exacerbation of symptoms or would have required medication adjustments during the period in issue.
Finally, to the extent that he strays from reliance on the state agency opinions, the ALJ improperly substituted his lay judgment for Dr. Baldwin's expertise when he (the ALJ) based his B criterion finding regarding Plaintiff's capacity to understand remember and apply information in part on his observation that Plaintiff "had no difficulty answering questions at the hearing." Tr. 28. As noted, Dr. Baldwin made a medical judgment regarding the same B criterion based on his observation of Plaintiff's "presentation." That is, Dr. Baldwin observed Plaintiff and relied on his medical expertise in assessing Plaintiff's capacity to understand, remember and apply information; he found a marked impairment. The ALJ made the same observation, relied on his lay judgment and found the impairment to be only mild. The Court notes that the ALJ's finding strains credulity in that Plaintiff's ability to answer questions at the hearing was so limited that the ALJ twice appealed to his attorney for help in comprehending his answers and once had to ask Plaintiff to leave the room and call for security. Tr. 47, 51, 73-74.
The corollary to these errors is the ALJ's equally troubling determination to afford "great weight" to the state agency opinions from Drs. Killenberg and Gordon. The Commissioner appears to concede that it was error to place great weight on the opinion from Dr. Killenberg, who saw nothing from the period of alleged disability because the onset date was amended to a day over a month after she signed her opinion. However, the Commissioner doubles down on the opinion from Dr. Gordon, which was rendered less than two months after the new alleged onset date. Therefore, Dr. Gordon saw only one record from the period in issue; he saw none of the Providence Center records after June 21, 2017, including the Cermik notes establishing not only an additional abnormal MSE finding, but also the persistence of Plaintiff's symptoms over a protracted period. Nor did Dr. Condon hear Plaintiff's testimony, such as his bizarre explanation for protracted noncompliance in failing to appear at and avoiding making appointments with Dr. Cermik. Tr. 62 ("I think he tries to test me . . . to see if I'm going to argue with him, or jump him . . . . I just felt like he was putting me down."). The ALJ's reliance on Dr. Gordon is further undermined by the reality that, while Dr. Gordon may have seen more of Dr. Cermik's treating records than Dr. Killenberg saw, he essentially ignored them in that his opinion is largely a cut-and-paste from that of Dr. Killenberg. Under such circumstances, I find that it was error for the ALJ to treat the Gordon opinion as substantial evidence and error to afford it great weight.
To recap, the ALJ erred in rejecting Dr. Baldwin's opinion for reasons that lack the support of substantial evidence. He also erred in affording great weight to the opinions of Drs. Killenberg and Gordon; they do not amount to substantial evidence because they were based on the review of the record from the period entirely (as to Dr. Killenberg) and largely (as to Dr. Gordon) prior to the period in issue in this case. I recommend that the Court remand the matter for further consideration of these issues.
Based on the foregoing analysis, I recommend that Plaintiff's Motion to Reverse the Decision of the Commissioner (ECF No. 11) be GRANTED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 14) be DENIED. Any objection to this report and recommendation must be specific and must be served and filed with the Clerk of the Court within fourteen (14) days of its receipt.
