RAY C. WILTSHIRE,
KENNETH S. APFEL,
Commissioner of Social Security,
[1998 DSD 40]
United States District Court
District of South Dakota
MEMORANDUM OPINION AND ORDER
Filed Dec 8, 1998.
Richard H. Battey, Chief Judge
I. PROCEDURAL HISTORY
[¶1] In an opinion dated July 15, 1996, Harry Malloy, an Administrative Law Judge ("ALJ"), denied plaintiff Raymond C. Wiltshire ("Wiltshire") Title II disability benefits under Title II of the Social Security Act ("the Act"), 42 USC §§ 401-433. Wiltshire then asked the Appeals Council to review the decision, but it declined. On October 14, 1998, Wiltshire filed a complaint before this Court seeking review of the ALJ's decision denying him social security benefits. Wiltshire urges this Court to reverse the decision of the ALJ and to remand the case for reconsideration. The Commissioner of Social Security ("Commissioner") filed his response asking the Court to grant summary judgment as a matter of law. Wiltshire has filed his reply. This Court has jurisdiction to proceed pursuant to 42 USC § 405(g).
[¶2] Wiltshire was born on May 1, 1944, and is currently 54 years old. He is a veteran of the armed forces, having served in the military from 1961-65. He has had seven years of formal education culminating in a GED, as well as police academy training. AR 68-69. He has worked as a police officer, security guard, truck driver, and maintenance worker. AR74, 77, 79, 144. Wiltshire alleges he is afflicted with depression, a personality and bipolar mood disorder, a hearing loss, diabetes mellitus, hypertension, arthritis, severe headaches, and alcoholism.(fn1) Of these ailments, his depression and personality disorder appear to be the most troubling, resulting in frequent mood swings and lapses of concentration. He also has difficulties dealing with others and appears to be a "loner." AR 71, 490-94.
[¶3] At the administrative hearing held on April 4, 1996, Wiltshire testified that his work suffered when he went through an episode of severe depression. AR 493. This was the case even if he enjoyed the work he was doing. At these times he was afflicted with an inability to remember things and an overwhelming desire to sleep. AR 77. He has been prescribed a host of medications.(fn2) AR 72-73, 499-518. As a result of his impairments, the Veteran's Administration ("VA") granted him a "Permanent and Total Disability Rating and Entitlement to Non-Service-Connected VA Pension" on November 17, 1994. AR 5, 39-41. Over the last decade, Wiltshire has received almost continuous treatment from VA facilities throughout the country, including facilities in Houston, Texas; Sheridan, Wyoming; Denver, Colorado; and Temple, Texas. AR 499-510. Most recently, he has received care from the VA hospital located in Hot Springs, South Dakota. AR 71-72.
[¶4] In addition to Wiltshire's testimony, the ALJ also questioned vocational expert Earl Houston. AR 90-97. The ALJ addressed Wiltshire's nonexertional impairments by inquiring: "If [Wiltshire] had . . . marked restrictions of activities of daily living and marked difficulties in maintaining social functioning and frequent deficiencies of concentration persistence or pace resulting in failure to complete tasks in a timely manner . . . how would that impact upon the ability to do either past work or any other ones?" In response, Houston stated: "That would have a severe impact. In all likelihood such a individual would not be able to work on an ongoing basis . . .". AR 95. Following this response, the ALJ inquired as to whether an individual with "slight restrictions of activities of daily living and slight difficulties in maintaining social functioning, and several deficiencies in concentration, persistence of pace resulting in a failure to complete tasks in a timely manner in a work setting also . . . would that cause a problem?" To this inquiry, Houston testified that such a person would not be seriously impacted and could find a significant number of jobs in the national economy.
III. DECISION BY THE ALJ
[¶3] In assessing the sequential process(fn3) which is required when determining if an individual is disabled and entitled to benefits, the ALJ found that Wiltshire had not engaged in substantial gainful activity at any time since August 15, 1992. Next, the ALJ concluded that Wiltshire's hearing loss and "affective disorder/ depression" were severe impairments, although they did not meet or equal one of the impairments outlined in the Listing of Impairments, 20 C.F.R. Pt. 404, App. 1 §§ 1.00 et seq. (1997). AR 57. The ALJ found that Wiltshire's diabetes mellitus, hypertension, arthritis, severe headaches, and alcoholism could not be considered severe impairments under the listings. AR 51.
[¶4] In making this decision, the ALJ was very specific in his analysis, pointing to a wealth of evidence in the medical record that he believed showed these impairments to be non-severe. The ALJ concluded that Wiltshire's arthritis was non-severe based upon the medical record which included x-rays showing little degenerative change in Wiltshire's hips and knee. Though he acknowledged that Wiltshire suffered from diabetes mellitus, the ALJ pointed to Wiltshire's "history of non-compliance with diet and medication" as the main reason for his problems, noting further that "if a claimant does not follow prescribed treatment without a good reason, he will not be found to be disabled." AR 51-52. With respect to Wiltshire's hypertension, the ALJ referred to medical records demonstrating that this condition was controlled by medication. AR 52-53. Finally, the ALJ determined that Wiltshire's alcohol use problems had been in remission for four years, and accordingly could not be found severe. The ALJ also cited recently conducted liver tests which showed Wiltshire's liver was functioning within the normal range. AR 53.
[¶5] At this point, the ALJ also found that Wiltshire's nonexertional impairments precluded his return to any past relevant work as a police officer, security guard, or truck driver. Accordingly, the ALJ acknowledged that the burden of proof shifted to the Social Security Administration to show that there existed a significant number of jobs in the economy which Wiltshire could perform. AR 56. The ALJ next examined Wiltshire's testimony regarding his depression and bipolar mood disorder and concluded that he "overstates his limitations" and that his hearing testimony in this regard was not "fully credible." AR 54. The ALJ pointed to a series of psychological examinations and reviews conducted between August1992 and February 1996, which he believed showed that Wiltshire had an appropriate affect, and that he suffered from no more than "mild depression." The ALJ disregarded two other more complete psychological examinations found in the record that indicated the Wiltshire did, in fact, suffer from major depression, anxiety, passive aggressiveness, and had limitations in his planning and organizing skills with a poor prognosis for future employment. AR 55.
[¶6] The first of these examinations was a Millon Clinical Multiaxial Inventory ("MCMI-II") conducted by the VA prior to Wiltshire's admittance to the domiciliary in May 31, 1994.(fn4) The ALJ discounted this test because at the time it was administered, Wiltshire had only recently begun taking antidepressants. Further, the ALJ noted that the test was not based upon objective evidence, but rather was founded on Wiltshire's subjective complaints. The ALJ also discounted the psychological evaluation conducted by VA Medical Center Psychiatrist Eleni Muntz, stating that: "The undersigned does not give Dr. Muntz's conclusion on the claimant's prognosis to work controlling weight since her clinical findings do not support her conclusion that he is unable to work." AR 55.
[¶7] In sum, the ALJ concluded that although Wiltshire's mental impairments were severe, there existed no evidence in the record indicating that Wiltshire would be unable to perform work activity as he had alleged. AR 56. The ALJ did find that Wiltshire would have to work in an environment without much noise due to his hearing loss. He further concluded that Wiltshire's depression could be controlled with medication and that he could perform simple, repetitive jobs in low stress situations, where he would not be required to work closely with co-workers. AR 56. Finally, the ALJ accepted the testimony of vocational expert Houston, and determined that a significant number of jobs existed in the national economy for Wiltshire to perform. Thus, the ALJ found that Wiltshire could not be considered disabled under the Act.(fn5) AR 57.
IV. STANDARD OF REVIEW
[¶8] 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).
[¶9] However, the Court's role 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.
[¶10] For Wiltshire to be eligible for disability benefits, he must be under a disability at the time he was insured. See 42 USC § 423(a)(1)(A)-(D). A disability is defined as:
inability to engage in 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 12 months.
Id. § 423(d)(1). In determining when a disability has occurred in a particular case, the ALJ must follow the requisite five steps.(fn6) See Evaluation of Disability Rule, 20 CFR § 404.1520 (1996). In this case, Wiltshire urges that the ALJ's failure to consider the combined effects of all his impairments, even those considered non-severe, resulted in an improper Residual Functional Capacity assessment, thereby warranting remand.(fn7) The Court agrees.
[¶11] It is well settled in the Eighth Circuit that an ALJ "must consider the impairments in combination and not fragmentize them in evaluating their effects." Delrosa v. Sullivan, 922 F2d 480, 484 (8th Cir. 1991); see also 20 CFR § 404.1523 (1997). While the ALJ acknowledged many of Wiltshire's alleged impairments, even considering his physical impairments in some detail, the ALJ made no attempt to consider the combined effects of Wiltshire's severe and non-severe impairments on his ability to engage in substantial gainful activity. An evaluation of each impairment, standing alone, is not enough. See Anderson v. Heckler, 805 F2d 801, 805 (8th Cir. 1986). This is especially true in the instant case, when the plaintiff suffers from a myriad of both physical and mental ailments. Any number of these impairments, when considered in combination, could lead to a finding that Wiltshire is disabled, and such a possibility should at least be considered by the ALJ. In this regard the Eighth Circuit has stated: "Each illness standing alone, measured in the abstract, may not be disabling. But disability claimants are not to be evaluated as having several hypothetical and isolated illnesses. These claimants are real people and entitled to have their disabilities measured in terms of their total physiological well-being." Reinhart v. Secretary, HHS, 733 F2d 571, 573 (8th Cir. 1984) (quoting Layton v. Heckler, 726 F2d 440, 442 (8th Cir. 1984)). There is no evidence in the record as a whole to indicate that the ALJ ever considered the combined effects of Wiltshire's diagnosed depression, personality disorders, hearing loss, diabetes mellitus, hypertension, arthritis, severe headaches, and alcoholism on his ability to perform substantial gainful activity. Accordingly, the Court finds that this case should be remanded to the Commissioner for such a consideration.
[¶12] The Court further concludes that the ALJ improperly disregarded credible psychological evidence and substituted his own lay judgment for trained professionals in concluding that Wiltshire was no more than "mildly depressed." AR 54. A complete review of Wiltshire's medical records indicates that he has suffered from varying degrees of depression for more than a decade. AR 500-518. The results of two psychological evaluations establish that Wiltshire is afflicted with severe depression and has poor employment prospects. Wiltshire was given the standardized MCMI II test in June 1994 in which he rated high for major depression, and schiziod and avoidant behavoir. AR 419. Despite the established and standardized nature of this test, the ALJ disregarded its results because it was based on Wiltshire's subjective responses and not upon what he considered to be "objective clinical findings."
[¶13] The ALJ also summarily disregarded the results of Wiltshire's 1994 VA Compensation and Pension Evaluation. AR 55. The psychological portion of this evaluation was conducted by psychiatrist Dr. Eleni Muntz and consisted of a complete review of Wiltshire's medical and mental health records and a face-to-face interview. AR 513. Following this examination, Dr. Muntz determined that Wiltshire suffered from depression, a rigid and constricted thought process, and limited organizational and planning skills. Id. She further concluded that Wiltshire had not exaggerated his symptoms and that his prognosis to obtain employment on a regular basis was poor. Id. Despite the comprehensive and objective nature of this examination, the ALJ disregarded her conclusions in their entirety, determining that Dr. Muntz's diagnosis was unsupported by her clinical findings. AR 55.
[¶14] Although such medical examinations and reports are not dispositive of the ultimate determination of whether a claimant is disabled, the ALJ must not substitute his opinions for those of the physician. Delrosa, 922 F2d at 484; Ness v. Sullivan, 904 F2d 432, 435 (8th Cir. 1990). Moreover, the Eighth Circuit has clearly held that where an ALJ questions the existence of a diagnosed mental condition, he must, at a minimum, order a consultative psychiatric examination. Delrosa, 922 F2d at 485; see also Dozier v. Heckler, 754 F2d 274, 276 (8th Cir. 1985). The need to order a consultative examination is grounded on the well-settled principle that it is the ALJ's duty to develop the record fully and fairly. Bishop v. Sullivan, 900 F2d 1259, 1262 (8th Cir. 1990). Based upon a careful review of the administrative record, the Court concludes that the ALJ failed to do this. Accordingly, it is hereby
[¶15] ORDERED that the Commissioner's motion for summary judgment (Docket #12) is denied.
[¶16] IT IS FURTHER ORDERED that decision of the Commissioner is reversed. The case is remanded to the Commissioner for further consideration of the evidence in accordance with this opinion.
1. Wiltshire was diagnosed with recurrent depression in 1993 while being treated at the veteran's hospital in Temple, Texas. AR 509. Wiltshire was also diagnosed as having a personality disorder with schizoid, antisocial, and borderline personality traits and was later diagnosed as having a more serious bipolar disorder. AR 32.
2. The list includes Trazadone, Nortriptyline, Imipramine, Zoloft, and Sinequan for his depressive disorder; Lithium and Valproic Acid for his bipolar mood disorder, and Librium and Ativan for anxiety. For his diabetes, Wiltshire has been treated with Insulin, but he more commonly uses oral hypoglycemics. His hypertension requires Calan, Petoprolol, Clonodine, Enalapril, Procardia, Isordil, Cardizem, Lopressor, Atenolol, Lisinopril, and Benazepril. He has also been placed on Fiorinal for headaches, and Motrin for arthritis pain. AR 499-518.
3. 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).
4. The MCMI-II is a 175-item test that assesses thirteen personality disorders and nine clinical syndromes in adult patients in outpatient, inpatient, chemical dependency, and other treatment settings.
5. The jobs suggested by Houston included parking lot attendant (100 in the regional economy and 100,000 in the national economy); hand packager (10,000 in the regional economy and 100,000 in the national economy); janitor (10,000 in the regional economy and 100,000 in the national economy); assembler (10,000 in the regional economy and 100,000 in the national economy); and farm laborer (10,000 in the regional economy and 100,000 in the national economy).
6. See footnote 3.
7. Wiltshire also contends that his case must be remanded because the Appeals Council failed to consider evidence that the VA had found Wiltshire to be totally disabled. Because this Court finds reason to remand Wiltshire's case based upon issue one, it will not address Wiltshire's second argument.