Platt v. Apfel, 2000 DSD 29
HOLLY ANNE PLATT,
KENNETH S. APFEL,
Commissioner, Social Security Administration,
[2000 DSD 29]
United States District Court
District of South Dakota--Western Division
Karen E. Schreier, United States District Judge[¶1] Holly Anne Platt alleges that the administrative law judge (ALJ) erred in denying her social security benefits under Title II of the Social Security Act. Platt filed a motion for summary judgment seeking either reversal or remand of the Administrative Law Judge's (ALJ) determination. The Commissioner of Social Security filed a cross motion for summary judgment requesting the decision of the ALJ be affirmed. This court has jurisdiction pursuant to 42 USC § 405(g). The case is remanded to the Commissioner for further administrative proceedings pursuant to 42 USC § 405(g).
[¶2] As a young child, Platt suffered various types of sexual, physical, and mental abuse at the hands of individuals entrusted with her care. After attaining her GED, Platt joined the Air Force in 1982. During her enlistment in the Air Force, Platt had a serious problem with alcohol abuse. Mental health professionals identified her drinking behavior to be partially the result of past abuse and potentially a symptom of post traumatic stress disorder.[¶3] Evidence in the administrative record indicates that the abuse suffered by Platt as a child is linked to her present difficulties with post traumatic stress. In 1984, one year prior to her discharge, Platt was married. Her husband was concerned about her heavy drinking and requested she slow down or stop her consumption. Once she stopped drinking, Platt became depressed and hypervigilant. She grew to be more and more incapacitated and would often strive to avoid social situations altogether.
[¶4] Near the end of her military obligation, the Air Force recommended Platt not re-enlist. After a psychological examination, the Air Force referred her to Eugene Muldavin, a licensed clinical social worker, to help her with her difficulties. Muldavin treated Platt for several years before she moved from Florida to South Dakota. During this time, she continued to manifest symptoms characteristic of post traumatic stress disorder, especially after the pregnancy and birth of her child.
[¶5] The administrative record includes Platt's testimony at the ALJ hearing, reports made by Muldavin, affidavits from family, more recent evaluations performed by Jack L. Sanders, M.S., a readjustment counseling therapist with Veteran's Services in Rapid City, and other administrative memoranda. The record supports Platt's contention that seeing her small child growing up forced Platt to deal with her own past.
[¶6] After her discharge from the Air Force, Platt did not work for ten years. Following her divorce, Platt unsuccessfully attempted five different jobs. Her longest period of work lasted one month. Platt testified before the ALJ that she suffers from feelings of worthlessness and uselessness, and finds herself unable to work.
[¶7] Between 1994 and 1995, Jack L. Sanders M.S., Pablo A. Fastino, M.D., and T.H. Shannon, M.D., all diagnosed Platt as having both depression and post traumatic stress disorder. In response to Platt's application for disability benefits, Sanders acknowledged the severity of Platt's condition. Sanders reported to the South Dakota Department of Human Services that she was "too fragile to function effectively in a work situation," and that "nothing in her behavior ... suggested she could hold a job while her condition debilitat[ed] her." Shannon labeled her condition as childhood PTSD instead of combat PTSD in discussing Platt's treatment options.
[¶8] In January of 1997, Muldavin submitted a report containing a retroactive diagnosis for the benefit of the ALJ. Muldavin submitted the information on a Social Security Psychiatric Review Technique form SSA-2506-BK (10-90). The report served two goals. It underscored Platt's position that she had definite and dramatic PTSD before her eligibility for benefits expired on September 30, 1989. The report also explained that earlier records held by Muldavin and the Air Force regarding Platt were destroyed and lost due to Hurricane Andrew. In February 1997, Muldavin reiterated his position via correspondence with Platt's counsel. Muldavin also sent correspondence to the ALJ affirming the timing of his counseling efforts with Platt.
[¶10] The decision was based on the findings made by the ALJ. The ALJ specifically found that Platt continued to meet disability insured status until September 30, 1989, and that Platt had not engaged in substantial gainful activity since February 7, 1984. However, the ALJ determined that there was no evidence in the record from an acceptable medical source to support a finding that Platt had a severe medically determinable impairment on or before September 30, 1989. The ALJ therefore determined that Platt was not under a disability through her date last insured.
[¶11] The ALJ followed the five-step sequential process for disability determinations, and found there was no evidence indicating that Platt had performed substantial gainful activity after February 7, 1984, the alleged date of onset. The ALJ determined that the only pertinent evidence related to the period at issue was the statement by Muldavin. The ALJ then listed three reasons for discrediting this evidence and justifying his finding that there was no evidence from an acceptable medical source to support a finding of disability prior to the expiration of Platt's insured status.
[¶12] Initially, the ALJ discussed Muldavin's use of the Psychiatric Review Technique Form, or PRTF. The ALJ discredited the use of the form by Muldavin, as it is not intended to be an evidence gathering tool, and is to be used solely by an ALJ or other decision-maker pursuant to 20 CFR § 404.1520(a). Words used within the PRTF, the ALJ maintained, have special importance through training from the Social Security Administration. Secondly, the ALJ found the information provided by Muldavin on the form was not sufficient to support a diagnosis because Muldavin is not an "acceptable medical source." Because he is not a licensed psychologist, physician, or osteopath as mandated by 20 CFR § 404.1513, the ALJ found the information given by Muldavin to have lesser value.
[¶13] Finally, the ALJ seemingly made a credibility determination regarding materials submitted by Muldavin on behalf of Platt. The PRTF submitted by Muldavin, exhibit 19. indicates that he began seeing Platt in 1991. Exhibit 25 is a letter sent by Muldavin in May of 1997 indicating that the correct date of therapy with Platt was on or around the beginning of 1990. The letter indicates that Muldavin was having difficulty in identifying a specific date as the records were lost in Hurricane Andrew. Muldavin did, however, state he clearly remembered Platt's case, the issues surrounding her treatment, and that he stood by the clinical assessments submitted to the ALJ. The ALJ found the letter to be "quite vague" and questioned Muldavin's failure to explain the difference between the two statements.
[¶14] The ALJ then listed other factors supporting a decision to deny Platt benefits. This included a reiteration of the inability of both Muldavin and Platt to establish a specific date of treatment due to the loss of records from the hurricane. Any date of treatment, however, did not begin prior to the expiration of Platt's insured status on September 30, 1989. The ALJ then stated that is was clear that Platt's impairments were not severe enough to disable her throughout her entire life, even though her disability is related to trauma she underwent as a child. Additionally, Platt was formerly employed in the military, and was caring for her daughter at the time her insured status ended. For the above reasons, the ALJ denied her claim for benefits under Title II. The ALJ decision discussed no other evidence within the record.
[¶15] Platt raises several issues in her appeal to the district court. First, she claims the ALJ's rejection and failure to consider corroborating lay evidence was an abuse of discretion and an error of law. Second, she maintains that remand is necessary due to the ALJ's failure to develop the record. Third, Platt claims the ALJ's step two finding of "not disabled" was not supported by substantial evidence. Platt also claims that new and material evidence supports remand.
[¶17] When reviewing a denial of benefits, a court must take into account the entire administrative record and give consideration to evidence that both supports and detracts from the ALJ's findings. See Harwood v. Apfel, 186 F3d 1039, 1042 (8th Cir. 1999). See also Brockman v. Sullivan, 987 F2d 1344, 1346 (8th Cir. 1993). The court may not substitute its judgment for that of the ALJ simply because it disagrees with the ALJ or finds the claimant's proof more credible. See Jelinek v. Bowen, 870 F2d 457, 458 (8th Cir. 1989). The court must also review the decision by the ALJ to determine if an error of law has been committed. 42 USC § 405(g). Specifically, a court must evaluate whether the ALJ applied an erroneous legal standard in the disability analysis. Erroneous interpretations of law will be reversed. See Walker v. Apfel, 141 F3d 852, 853 (8th Cir. 1998) (citing Ingram v. Chater, 107 F3d 598, 601 (8th Cir. 1997)).
[¶18] An ALJ must be certain and careful when denying benefits during the evaluation of whether there is a severe impairment, which is the second step of the five-step inquiry. See Gilbert v. Apfel, 175 F3d 602, 604-05 (8th Cir. 1999). "Great care should be exercised in applying the not severe impairment concept. If an adjudicator is unable to determine clearly the effect of an impairment or combination of impairments on the individual's ability to do basic work activities, the sequential evaluation process should not end with the not severe evaluation step." Id. at 604 (quoting Social Security Ruling 85-28).
[¶19] The sequential evaluation process should only be ended at step two after an ALJ has determined that the impairment will have no more than a minimal effect on the claimant's ability to work. See Nguyen v. Chater, 75 F3d 429, 431 (8th Cir. 1996). The denial of benefits at the second step of the inquiry is justified only for those claimants whose medical impairments are so slight that it would be unlikely they would be found to be disabled even taking into account their age, education, and experience. See id.; Siemers v. Shalala, 47 F3d 299, 302 (8th Cir. 1995).
[¶20] Platt filed an application for social security income (SSI) benefits on the same day that she filed an application for social security disability (SSD) benefits. Disability Determination Services (DDS) found that Platt had a severe mental impairment for purposes of SSI and awarded her SSI benefits. Thus the only issue before the ALJ in this case is when the impairment became disabling, and the ALJ should not have stopped at step two of the five-step inquiry.
[¶21] To be eligible for an award of benefits under Title II, Platt must establish that she was disabled due to PTSD prior to her date last insured. The ALJ correctly identified this as the key issue in analyzing her claim. In this case, the ALJ failed to develop any of the evidence within the record. The ALJ simply concluded Platt was not eligible for benefits because no document stated a specific date of diagnosis of PTSD prior to Platt's date last insured. Platt contends that such an analysis made by the ALJ is erroneous and should be either reversed, or, in the alternative, remanded for a new hearing. Platt is correct.
[¶22] Platt claims that the ALJ failed to adequately develop the documentary and testimonial evidence. The ALJ has a duty to fully and fairly develop the facts in the record. See Salts v. Sullivan, 958 F2d 840, 844 (8th Cir. 1992). "'Unfairness or prejudice resulting from an incomplete record - whether because of lack of counsel or lack of diligence on the ALJ's part - requires a remand.'" Id. at 844 (quoting Highfill v. Bowen, 832 F2d 112, 115 (8th Cir. 1987)). When documentary evidence already before the ALJ puts the ALJ on notice of the need for further inquiry or development of the record, a remand is necessary. See Highfill, 832 F2d at 115.
[¶23] After reviewing the records before the ALJ, this court finds that the ALJ failed to develop the record so that a fair determination of Platt's disability status could be made. Salts, 958 F2d at 844. Although put on notice of Platt's present diagnosis of childhood PTSD made by a social worker, two licensed physicians, and a past diagnosis reiterated by Muldavin, the ALJ neither discussed nor developed that information, nor addressed how such information may understandably call for an additional retrospective diagnosis. Additionally, an ALJ is accorded various powers to develop the record, including assistance of a medical advisor. 20 CFR § 404.1520(d)(ii). A new retrospective diagnosis may be ordered by the ALJ. After receiving that analysis, the ALJ should look to other evidence in the record to aid in the primary issue of determining Platt's status. If the ALJ had fully developed the record, such information would have been before him while making his determination. See, e.g., Kitts v. Apfel, 204 F3d 785, 786 (8th Cir. 2000). Conversely, the ALJ discussed no evidence in the record other than the Muldavin report. Remand is appropriate in this case for full development of the record and for a reexamination of Platt's condition on or around September 30, 1989.
[¶24] The ALJ failed to follow proper procedure at step two of his inquiry by failing to properly consider or discredit Platt's claimed disability, which is necessary to appropriately deny a claim at step two of the inquiry. See Gilbert v. Apfel, 175 F3d 602, 604-05 (8th Cir. 1999); Nguyen v. Chater, 75 F3d 429, 431 (8th Cir. 1996). The ALJ also failed to discuss any of the lay evidence within the record and the possibility of its applicability to a retrospective diagnosis. See Grebenick v. Chater, 121 F3d 1193, 1199 (8th Cir. 1997); Jones v. Chater, 65 F3d 102, 104 (8th Cir. 1995); Salts v. Sullivan, 958 F2d 840, 844 (8th Cir. 1992). When a claimant is attempting to utilize medical evidence to support a retrospective diagnosis, the ALJ must consider all of the evidence in the record as a whole. See Grebenick, 121 F3d at 1199.
[¶25] The ALJ also failed to follow the procedures set out in 20 CFR §§ 404.1520 through 404.1520(d). These provisions set forth a special procedure for mental health claims at each level of administrative review. The procedure is documented through the use of a "Psychiatric Technique Review Form." Failure on the part of the ALJ to complete a PTRF and attach the form to the ALJ decision combined with improper sequential step analysis requires a remand. See Pratt v. Sullivan, 956 F2d 830, 834-35 (8th Cir. 1992). The ALJ decision denotes no discussion of these special procedures, and no mention of a PRTF is made aside from the rejection of the information submitted by Muldavin because it was on such a form. For the aforementioned reasons there is not substantial evidence in the record as a whole supporting the decision of the ALJ. Remand is appropriate. For this reason, the court need not address the other contentions made by Platt.
[¶26] Accordingly, it is hereby
ORDERED that Commissioner's motion for summary judgment (Docket 19) is denied.
IT IS FURTHER ORDERED that Pratt's motion for summary judgment requesting remand (Docket 14) is granted. This case is remanded to the Commissioner in accordance with 42 USC § 405(g).
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