MELFORD W. GUNDERSON,
KENNETH S. APFEL
Commissioner of Social Security,
[1998 DSD 30]
United States District Court
District of South Dakota
MEMORANDUM OPINION AND ORDER FOR REMAND
Filed Sep 24, 1998
Richard H. Battey, Chief Judge
I. PROCEDURAL HISTORY
[¶1] Pending before the Court are cross motions for summary judgment filed by plaintiff Melford W. Gunderson (Gunderson) and the defendant. Gunderson was originally awarded disability benefits following a work-related injury to his hand and arm in 1981. Cessation of benefits occurred in October 1983. Gunderson last met insured status in 1988. On May 1, 1995, Gunderson filed for disability insurance benefits from the cessation of his benefits in 1983 until date last insured in 1988. After being denied through the reconsideration level, Gunderson timely requested a hearing which was held before an Administrative Law Judge (ALJ) on November 5, 1996. At the hearing, Gunderson was represented by counsel, Catherine Enyeart. Gunderson was 54 years old at the time of the hearing.
[¶2] On March 18, 1997, the ALJ issued his decision denying Gunderson's claim for disability benefits. AR 20-25. The ALJ determined that Gunderson was not disabled according to the regulations. On January 28, 1998, the Appeals Council declined review of the ALJ's decision. AR 10-11. On March 24, 1998, Gunderson commenced this action to review the Commissioner's final decision denying his claim.
[¶3] This Court has jurisdiction under 42 USC § 405(g) and 42 USC § 1383(c)(3).
[¶4] In 1966, Gunderson was honorably discharged from military service in Vietnam. He subsequently worked as a rough-neck, driller, and tool pusher, for an oil field drilling company. AR 91. In 1981 his right arm was crushed in a work-related accident. AR 57. He underwent various surgeries to repair the damage to his arm and hand from 1981 until 1983. Following the injury to his arm, Gunderson was unable to work and received disability benefits until July 1983, when the social security administration determined that his disability had ended and he was able to perform light work. AR 55. However, Gunderson has not been employed since the accident in 1981.
[¶5] Since 1988, when Gunderson last met the insured status, several doctors have examined him concerning both the condition of his arm and his psychological condition. In July 1995, Dr. James Flevares noted that Gunderson had "more documentation of his combat service than any other vet I have ever interviewed." AR 233. Dr. Flevares indicated that there are many veterans who receive full benefits due to post-traumatic stress disorder (PTSD) who "do not have a 10th of Mr. Gunderson's documentation." Id. In December 1996, Dr. Donald Burnap, a psychiatrist, stated that Gunderson exhibited signs of PTSD since his return from Vietnam and that since the injury to his arm in 1981 "his PTSD symptoms have been incapacitating." AR 519. Dr. Burnap concluded that Gunderson was "the worst case of PTSD this examiner has encountered to date." Id. Finally, on a Psychiatric Review Technique Form (PRTF) in October 1996, Dr. Robert Goldberg indicated that Gunderson has "suffered from severe post-traumatic stress disorder and depression since an industrial accident he was in during 1981." AR 435. Dr. Goldberg also noted that when Gunderson could no longer work his PTSD and depression were exacerbated. Id.
[¶6] Gunderson's wife, Gloria, submitted a statement for the ALJ in which she related the impact that PTSD has had on Gunderson's life. She indicated that since his arm was crushed Gunderson cannot undertake "normal activities" and that he was "real depressed." AR 429. She further noted that since 1981 Gunderson has completely withdrawn from contact with others, including an inability to attend both church functions and his children's extra-curricular activities. Id.
[¶7] Gunderson testified that since the injury to his arm he has felt increasingly frustrated in situations where others are present. AR 43-45. In addition to difficulty dealing with others, Gunderson noted that he has had trouble focusing due to the flashbacks he encounters. Ar 42-43. He also has difficulty sleeping due to nightmares. He testified that he has withdrawn from any activities in which he encounters other people. AR 43.
III. DECISION OF THE ALJ
[¶8] In assessing the sequential process(fn1) which is required when determining if an individual is disabled pursuant to the Social Security Act, the ALJ first concluded that Gunderson has not performed any substantial gainful activity (SGA) since October 1, 1983, the date his benefits ceased. AR 21. Second, the ALJ found that Gunderson did suffer from a severe physical medical impairment, namely his crushed right arm. At step three, the ALJ found that the arm injury was not a listing impairment.
[¶9] The ALJ acknowledged that Gunderson claimed to be suffering from PTSD and examined the evidence to that effect. AR 22. The ALJ concluded that Gunderson did not have a severe mental impairment since there was no contemporaneous medical record of treatment for PTSD during the time period in question, 1983 to 1988. AR 21-22. The ALJ determined that the opinions of doctors after that period concerning the onset of PTSD should be given little weight. AR 23.
[¶10] The ALJ concluded at step four that Gunderson was unable to perform previous relevant work prior to his date last insured due to his arm injury. AR 23. The final step was for the ALJ to determine Gunderson's residual functional capacity (RFC). A claimant's RFC is based upon the medical evidence, as well as his testimony and credibility. It is used to determine the particular type of work claimant may be able to perform despite a severe impairment. See 20 CFR § 404.1545. The ALJ determined that Gunderson had the residual functional capacity to perform unskilled light and sedentary jobs prior to his date last insured. AR 23. He relied upon Rule 202.21 and took administrative notice of several jobs from the medical-vocational guidelines to conclude that significant jobs existed in the national economy which Gunderson could perform. Finally, the ALJ determined that there was no basis to reopen the prior cessation determination.
IV. STANDARD OF REVIEW
[¶11] The decision of the ALJ must be upheld if it is supported by substantial evidence in the record as a whole. 42 USC § 405(g); Metz v. Shalala, 49 F3d 374, 376 (8th Cir. 1995) (citing Sullins v. Shalala, 25 F3d 601, 603 (8th Cir. 1994), cert. denied, 573 U.S. 1076, 115 S. Ct. 722, 130 L. Ed. 2d 627 (1995)); Smith v. Shalala, 987 F2d 1371, 1373 (8th Cir. 1993). Substantial evidence is less than a preponderance, but enough evidence that a reasonable mind might find it adequate to support the conclusion. Fines v. Apfel, 149 F3d 893 (8th Cir. 1998) (citing Oberst v. Shalala, 2 F3d 249, 250 (8th Cir. 1993)). See also Shannon v. Chater, 54 F3d 484, 486 (8th Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971)); Onstead v. Sullivan, 962 F2d 803 (8th Cir. 1992) (quoting Whitehouse v. Sullivan, 949 F2d 1005, 1007 (8th Cir. 1991)). Review by this Court extends beyond a limited search for the existence of evidence supporting the Commissioner's decision to include giving consideration to evidence in the record which fairly detracts from the decision. Brockman v. Sullivan, 987 F2d 1344, 1346 (8th Cir. 1993); Locher v. Sullivan, 968 F2d 725, 727 (8th Cir. 1992); Turley v. Sullivan, 939 F2d 524, 528 (8th Cir. 1991).
[¶12] However, the Court's role under section 405(g) is to determine whether there is substantial evidence in the record as a whole to support the decision of the Commissioner and not to reweigh the evidence or try the issues de novo. Murphy v. Sullivan, 953 F2d 383, 384 (8th Cir. 1992). Furthermore, a reviewing court may not reverse the Commissioner's decision "merely because substantial evidence would have supported an opposite decision." Woolf v. Shalala, 3 F3d 1210, 1213 (8th Cir. 1993); Smith v. Shalala, 987 F2d at 1374 (citing Locher, 986 F2d at 727 (quoting Baker v. Heckler, 730 F2d 1147, 1150 (8th Cir. 1984))). The Court must review the Commissioner's decision to determine if an error of law has been committed. Smith v. Sullivan, 982 F2d 308, 311 (8th Cir. 1992); Nettles v. Schweiker, 714 F2d 833, 836 (8th Cir. 1983). The Commissioner's conclusions of law are only persuasive, not binding, on the reviewing court. Smith v. Sullivan, 982 F2d at 311; Satterfield v. Mathews, 483 F. Supp. 20, 22 (E.D. Ark. 1979), aff'd per curiam, 615 F2d 1288, 1289 (8th Cir. 1980). As long as the ALJ's decision is supported by substantial evidence, then this Court cannot reverse the decision of the ALJ even if the Court would have decided it differently. Smith v. Shalala, 987 F2d at 1374.
[¶13] In support of his motion for summary judgment, Gunderson contends the ALJ erred in the following ways: (1) use of an incorrect evidential standard concerning Gunderson's mental impairment; (2) failure to assess credibility in accordance with Eighth Circuit standards; (3) failure to consider lay and expert testimony; and (4) failure to properly follow social security administration procedure to determine residual functional capacity. Plaintiff's Brief at 12. The Court finds that only the first argument proffered by Gunderson has merit and remands the case on that basis.
[¶14] According to Gunderson, the ALJ inappropriately rejected the opinions of Dr. Burnap, Dr. Flevares, and Dr. Goldberg, all of whom concluded that Gunderson began suffering from PTSD in 1981. Plaintiff's Brief at 13. Examination of the record and relevant case law reveals that Gunderson is correct.
[¶15] Gunderson asserts that his mental impairment became apparent as early as 1981. The opinions of several doctors support this assertion. In October 1996, Dr. Goldberg noted on a PRTF that Gunderson "has suffered from severe post-traumatic stress disorder and depression since an industrial accident he was in during 1981." AR 435. Dr. Burnap noted that Gunderson has suffered the effects of PTSD since he returned from Vietnam in 1966 but he was able to repress the symptoms by immersing himself in work and alcohol. AR 519. According to Dr. Burnap, once Gunderson became incapacitated and could no longer work "his PTSD symptoms have been incapacitating." Id. Both Dr. Burnap and Dr. Flevares noted that Gunderson's PTSD was severe and among the worst cases they have seen. AR 233, AR 519.
[¶16] These opinions, even though based upon examinations after the date last insured, are to be considered, along with all the evidence, by the ALJ in determining the severity of the claimant's condition. Basinger v. Heckler, 725 F2d 1166, 1169 (8th Cir. 1984). To be relevant, however, the medical opinions must be "based upon medically accepted clinical diagnostic technique[s]" and are to be considered in light of the entire record "to determine whether it establishes the existence of a[n] . . . impairment prior to the expiration of the claimant's insured status." Grebenick v. Chater, 121 F3d 1193, 1199 (8th Cir. 1997) (citing Basinger, 725 F2d at 1169).
[¶17] With this standard in mind the Court turns to the record and the ALJ's examination of the evidence. The ALJ noted that he considered the opinions of the doctors but gave "little, if any, weight to these [opinions] as the conclusions stated therein are not supported by clinical findings made during the relevant period." AR 23 (emphasis added). This is a fundamental misstatement of the standard involved in such instances. The case law indicates that the primary issue when dealing with a retrospective diagnosis is whether that diagnosis is a "medically accepted clinical diagnostic technique," not whether there was contemporaneous medical data from the relevant time period. Grebenick, 121 F3d at 1199. To require medical data from the time in question would obviate the need for a retrospective diagnosis in the first place. The aforementioned standard exists to assist the ALJ in those instances where there is little or no medical evidence for the relevant time period in question. This is such a case.
[¶18] Additional evidence on the record corroborates the retrospective medical opinions. Gunderson's wife, a nurse who has worked with those suffering from PTSD, submitted a statement to the ALJ prior to the hearing. She stated that since the injury to his arm in 1981, and subsequent inability to work, "he couldn't do even normal activities," "he got real depressed," "he didn't want to do anything, even with us, the children and me." AR 429. Additionally, she noted that since the arm injury Gunderson is "paranoid of everybody" and that they stopped going to church in 1985 because he cannot be around people. Id. His angst around others also prevents him from attending his children's sporting events. Id.
[¶19] At the hearing, Gunderson testified that during the relevant period nightmares every night interrupted his sleep and he was unable to focus on daily activities due to flashbacks. AR 42-43. He withdrew from social activities and participation in community events. AR 43-44. For the same reason he stopped attending church in 1985. AR 49. He is unable to go to the grocery store due to his frustration with other people and instead drives his children there and waits in the car. AR 45-46.
[¶20] It is evident that evidence in the record as a whole supports the diagnosis that Gunderson suffered from PTSD as early as 1981. It is also evident that the opinions of the doctors who emphasized the early onset of PTSD should be given more than a cursory review as they are diagnostically acceptable even though not contemporaneous to the time period in question. On remand, the ALJ should carefully weigh the significance of the opinions of Dr. Burnap, Dr. Flevares, and Dr. Goldberg along with the other medical evidence to determine the onset date of PTSD and its severity.(fn2)
[¶21] Accordingly, it is hereby
[¶22] ORDERED the Commissioner's motion for summary judgment (Docket #13) is denied.
[¶23] IT IS FURTHER ORDERED that Gunderson's motion for summary judgment (Docket #10) is granted. The case shall be remanded for further consideration of the evidence in accordance with this opinion.
1. The steps are summarized as follows:
(1) First, a determination is made whether claimant is currently engaged in substantial gainful activity; if so, he must be found not disabled.
(2) If claimant is not engaged in substantial gainful activity, the next question is whether he is suffering from a severe impairment, defined as one that significantly limits the ability to perform basic work-related functions. If a severe impairment is not found, claimant must be found not disabled.
(3) If there is a severe impairment, and it is one listed in Appendix 1 to Subpart P, claimant is found disabled on the medical evidence alone. [ See Appendix 1 to Subpart P of Part 404, 20 CFR §§ 404.1501 et seq. (1996)].
(4) If the impairment is not listed in Appendix 1, the next inquiry is whether claimant can perform relevant past work. If he can, a finding of no disability is required.
(5) Finally, if claimant cannot perform relevant past work, the question then becomes whether he can nevertheless do other jobs that exist in the national economy, despite his having a severe impairment that prevents return to his previous work.
McCoy v. Schweiker, 683 F2d 1138, 1141-42 (8th Cir. 1982). See also 20 CFR § 404.1520; 1 Harvey L. McCormick, Social Security Claims and Procedures § 410, at 346 (4th ed. 1991).
2. The Court finds that the letter written by Dr. Guido Spangher on June 23, 1998, is cumulative of what the other doctors stated and therefore need not be considered on remand.