Thinking for Decision Makers

Mastermind: How to Think Like Sherlock Holmes by Maria Konnikova is an excellent read in what I call the genre of popular psychology/cognitive knowledge/critical thinking. Konnikova cites and credits many other thinkers and provides bibliography for these interrelated fields.

Here Konnikova, as did Arthur Conan Doyle before her, uses Holmes as the cool, detached, mindful thinker, almost all of the time, and Watson, as the emotional, more impulsive, “observer.”

Konnikova identifies many human shortcomings and errors or non-mindful ways of thinking.  Echoing Sherlock Holmes, she tells us to ask whether something is truly impossible or merely unlikely.

Some of the concepts Mastermind delves into, often in the context of the stories of Sherlock Holmes, are: correspondence bias, availability heuristics, the habitual mindset, attentional blindness, filtering ability, the effect of the sense of smell, omission neglect, creativity and imagination, functional fixedness, the need for closure and our inner storyteller, probabilistic reasoning, memory and witness unreliability, the misinformation effect, and confirmation bias.

There is much to pay attention to in this book.  It would be a crime not to.

Bipolar I Disorder, Panic Disorder, Post-Traumatic Stress Disorder (PTSD), Knee Impairments, High Blood Pressure, Back Pain and Colon Polyps.

The Administrative Law Judge, among other findings, concluded that the claimant could do her past relevant work, relying on the answer to a hypothetical question asked of the vocational expert.  The court agreed with the claimant that the question failed to sufficiently describe the claimant’s residual functional capacity.  The claimant had been evaluated by her treating nurse practitioner in 16 work-related categories, and her abilities were rated as “good” in eight categories and as “fair” in the other eight categories. 

The court stated that the ALJ: “should have individually identified for the vocational expert the categories in which Plaintiff's abilities were characterized as fair and in which categories her abilities were characterized as good. At a bare minimum, the ALJ should have identified for the vocational expert the number of categories in which Plaintiff’s abilities were rated as fair and the number of categories in which her abilities were rated as good. . . . This uncertainty is reflected in the vocational expert’s response that he did not think that Plaintiff would be precluded from performing her past relevant work if limited to the extent articulated in Exhibit 18F. Such a qualified and less than definitive response simply does not constitute substantial evidence that Plaintiff retains the ability to perform her past relevant work as a cashier and laundry worker.”

Secondly, the court found that the ALJ’s reliance on the Grids, 20 C.F.R., Part 404, Subpart P, Appendix 2, was not based on substantial evidence.  It stated:  “the notion that Plaintiff is capable of performing heavy or very heavy work is absurd and enjoys no support in the record. . . . At a minimum, Plaintiff’s long-standing knee impairments would appear to preclude the performance of heavy or very heavy work.”  

The court pointed out that, “The ALJ has also failed to secure or identify reliable evidence that Plaintiff’s nonexertional impairments do not significantly impact her ability to perform work. The grids only take into consideration a claimant’s exertional (i.e., strength) limitations. Accordingly, where a claimant suffers from ‘nonexertional limitations that significantly restrict the range of available work,’ use of the grids alone to make a disability determination is inappropriate.” 

The magistrate judge recommended that the case be remanded.

ANALYSIS

Social Security’s Medical-Vocational rules are displayed in the regulations in a grid format with the outcome of “disabled” or “not disabled” matched against the claimant’s physical residual functional capacity assessment as well as age, education and skills from past relevant work.  The regulations require that if a determination can be made using the “Grids,” it must be so made.

In many cases, age can be the most important variable—hence, it is difficult for younger claimants to be approved and somewhat less difficult for older claimants.

Durtche v. Commissioner of Social Security, Case No. 1:12-CV-1181 (D. W.D. Mich., S. Div., March 12, 2014).

http://scholar.google.com/scholar_case?case=14655486582745775763&q=social+security&hl=en&as_sdt=40000003&as_ylo=2014

Attention Deficit Hyperactive Disorder, Bipolar Disorder and Borderline Intellectual Functioning.

In this case, a non-examining psychologist acting as a state agency consultant, Dr. Telford-Tyler, completed a mental RFC assessment and stated, in part: “The claimant could benefit from close supportive supervision. The claimant may have episodic interruptions to a normal workweek secondary to psychologically based symptoms.” 
The Administrative Law Judge discussed other medical reports and opinions, but not the one by Dr. Telford-Tyler.  The ALJ did not assign any weight to the opinion of Dr. Telford-Tyler, “nor did she provide any explanation as to why she did not include or otherwise account for” this medical opinion.

The court found that “the weight afforded to these opinions, particularly Dr. Telford-Tyler’s opinion concerning episodic interruptions in a normal workweek, could very well result in a more restrictive [residual functional capacity] than the ALJ’s current RFC determination.”

In remanding the case, the court stated that the ALJ’s decision was not supported by substantial evidence.

The court noted that:

“In Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176 (11th Cir. 2011), the Eleventh Circuit held that whenever a physician offers a statement reflecting judgments about the nature and severity of a claimant’s impairments, including symptoms, diagnosis, and prognosis, what the claimant can still do despite his or her impairments, and the claimant’s physical and mental restrictions, the statement is an opinion requiring the ALJ to state with particularity the weight given to it and the reasons therefor. Id. at 1178-79 (citing 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2); Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987)).”

Vermillion v. Commissioner of Social Security, Case No. 6:12-cv-1572-Orl-GJK (D. M.D. Fla., Orlando Div., March 7, 2014).

http://scholar.google.com/scholar_case?case=6822909597271253781&q=social+security&hl=en&as_sdt=40000003&as_ylo=2014

Sciatica, Arthritis in the Lower Back, and Pinched Nerve in the Back with Steady Pain and Radiating Pain down the Left Leg/Calf and the Right Leg.

The medical evidence included the claimant’s treating orthopedic doctor’s opinion that “a facet arthropathy . . . on the right. . . may well be producing these symptoms” in the claimant’s right lower back and leg

The court agreed with the claimant’s that the Administrative Law Judge “did not mention the treating physician’s medical opinion, let alone give it ‘considerable weight.’ Likewise, the ALJ did not discuss pertinent elements of the examining physician’s medical opinion, and the ALJ’s conclusions suggest that those elements were not considered. It is possible that the ALJ considered and rejected these two medical opinions, but without clearly articulated grounds for such a rejection, we cannot determine whether the ALJ’s conclusions were rational and supported by substantial evidence.”

The court stated that the ALJ “must make his findings clear.”  In this case, the ALJ’s residual functional capacity assessment was deficient in that it did not first identify the claimant’s functional limitations or restrictions on a function-by-function basis as required by the regulations.  Social Security Ruling 96-8p.

Additionally the court found that the ALJ’s reliance on the Medical-Vocational Rules was not appropriate where the claimant suffered from non-exertional limitations, such as pain.  See, 20 C FR Part 404, Subpart P, Appendix 2, § 200.00(e).

ANALYSIS

While it is true that your doctor’s opinion that you are disabled is not sufficient for Social Security to award you disability, Social Security rules and regulations require the adjudicator to consider and evaluate medical evidence and opinions.  This is the treating physician rule.

Because your medical records and the opinions that may be included are the heart of your case, the disabled applicant (and his personal advocate and representative) must make sure that his case file includes all his medical evidence.

HOW TO GET SOCIAL SECURITY DISABILITY & SSI DISABILITY provides templates for keeping journals of medical visits and prescriptions.

Mieles v. Commissioner of Social Security, Case No. 6:13-cv-91-Orl-DAB (D. M.D. Fla., Orlando Div., Jan. 10, 2014).

http://scholar.google.com/scholar_case?case=2896090530026119360&q=social+security&hl=en&as_sdt=40000003&as_ylo=2014

Right Knee Arthritis and Status Post Cervical Spine Fusion with a history of Failed Wire Stabilization.

Among the issues raised by the claimant in his court appeal was that the Administrative Law Judge failed to include all of his impairments in the residual functional capacity finding and in hypothetical questions posed to the vocational expert.

After a comprehensive musculoskeletal evaluation, the claimant’s doctor concluded that his cervical range of motion was severely impaired, including abilities to tilt head forward, to tilt head back, right side bend and left side bend.  Additionally, the claimant’s range of motion for right and left rotations was ten degrees, compared to a normal range of motion of eighty degrees.  The court noted: “Accordingly, Dr. Grunwald opined that plaintiff ‘demonstrates a severely restricted range of motion in the cervical region.’. . . The ALJ gave Dr. Grunwald’s findings ‘great weight.’”

The court stated that in the ALJ’s residual functional capacity assessment, “there are no explicit limitations regarding [the claimant’s] limited cervical range of motion despite the fact that the ALJ gave great weight to the opinion of Dr. Grunwald.”

The court found: “As a primary matter, the ALJ failed to adequately incorporate [the claimant’s] severely limited cervical range of motion into the RFC. As was clearly demonstrated by the VE’s testimony, workplace dangers are not the only issues presented to a person with a limited cervical range of motion. Such limitations preclude the ability to perform a great number of jobs, including, all jobs in the sedentary category. Second, in light of the fact that plaintiff is required to have a sit/stand option because of his knee problems, there is no reason to believe that plaintiff could perform the jobs identified by the ALJ from a seated position in light of his limitations.”

The court ruled that the ALJ’s failed to include “explicit limitations concerning [the claimant’s] cervical range of motion in his RFC and in the dispositive hypothetical . . . .”   Because the court concluded that “this issue is determinative on the question of disability,” the ALJ decision was reserved and remanded for an award of benefits.

ANALYSIS

Social Security requires an ALJ to provide a function-by-function assessment pursuant to 20 CFR 404.1545 and 416.945 and a narrative discussion, citing the evidence and medical facts as required by SSR 96-8p based upon all of the relevant evidence of the claimant’s ability to do work-related activities.  The residual functional capacity assessment is used to determine whether a claimant can perform his past relevant work and any other type of work in the national economy.  20 CFR 404.1520(f)(g), 416.920(f)(g).

Oliver v. Commissioner of Social Security, Case No. 1:12-cv-02143-HA (D. Ore., Medford Div., Feb. 27, 2014).

 

http://scholar.google.com/scholar_case?case=17278374100768254427&q=SOcial+security&hl=en&as_sdt=40000003&as_ylo=2014

Valvular Heart Disease, Aortic Aneurysm, Postoperative Sternal Complications, Major Depressive Disorder, Obesity and Diabetes Mellitus.

In discussing the Administrative Law Judge’s credibility findings, the magistrate judge cited case law that, “an ALJ’s credibility determinations regarding subjective complaints must be reasonable and supported by substantial evidence” (citation omitted).

“In evaluating plaintiff’s mental condition, the ALJ found that plaintiff was not entirely credible, in part because he had not received any psychiatric treatment nor been prescribed any psychotropic medication to treat depression since April 2010 . . . . The ALJ determined that plaintiff’s lack of treatment suggested that his symptoms were less severe than alleged . . . .”

The court, however, pointed out that Social Security Ruling 96-7p requires an ALJ making a credibility inference from a claimant’s failure to obtain medical treatment to first consider the claimant’s explanation for his failure to pursue treatment.  The ruling gives an example of an individual who “may be unable to afford treatment and may not have access to free or low-cost medical services . . . .”

The claimant testified at the hearing that he had previously seen a therapist and psychiatrist, until he “ran out of insurance” and then he relied on his primary care physician to prescribe the same medication.

The court stated that the ALJ’s decision did not address either the explanation for the lack of continuing psychiatric treatment or the claimant’s subsequent treatment with his primary care physician after that date. “Furthermore, contrary to the ALJ’s decision, the record supports plaintiff’s testimony that [the primary care physician] treated his mental impairments after he stopped treatment at Pine Rest. . . . 

Based on this record, the ALJ’s credibility determination was not supported by substantial evidence to the extent that the ALJ relied on plaintiff’s lack of treatment . . . .”

The magistrate judge recommended that the decision be reversed and remanded.

ANALYSIS

Officially, Social Security disability applications are considered in a nonadversarial manner but too often Social Security rules and rulings are not followed.

The use of credibility by ALJs (as a denial device) is anticipated by representatives as they prepare for hearings and must also be anticipated by claimants as they prepare Social Security forms.  See HOW TO GET SOCIAL SECURITY DISABILITY AND SSI DISABILITY.

Martin v. Commissioner of Social Security, Case No. 1:12-cv-1030 (D. W.D. Mich., S. Div., Feb. 3, 2014).

http://scholar.google.com/scholar_case?case=12953871341147487147&q=SOcial+security&hl=en&as_sdt=40000003&as_ylo=2014

High Blood Pressure, Peripheral Retinopathy, Diabetes Mellitus, Hearing Loss, Obesity and Post-Traumatic Stress Disorder.

The claimant objected to a ruling made by the magistrate judge, that "[i]n the absence of a 100 percent disability finding by the [Veterans Administration], the [Administrative Law Judge] is not required to adopt or even consider the VA’s determination."

The district court found that the ALJ “disregarded the ‘evidence of a disability decision by another governmental . . . agency’ which, pursuant to the Social Security Administration’s regulations, ‘must be considered.’ SSR 06-03p . . .”  In fact, the court noted that the ALJ  nowhere discussed “the VA’s indication that Plaintiff has an eighty (80) percent serviceconnected disability. As a result, the ALJ did not explain whether she accorded this finding any weight, and if not, why not.”

As to a requirement that a VA disability finding be a 100 percent determination, the court stated that SSR 06-03p, “promulgated for the purpose of clarifying how the Social Security Administration considers decisions by other governmental agencies on the issue of disability, contains no such limiting language and the Court, which is not embraced within the executive branch of government, will not read words into a regulation that are simply not there.”

The court concluded that: “Because factual issues remain unsettled, and because the Commissioner's decision did not comply with the Social Security regulations, the case must be remanded for further consideration of the evidence.”

Wilmore v. Commissioner of Social Security, Case No. 12-14532 (D. E.D. Mich., S. Div., Jan. 29, 2014).

http://scholar.google.com/scholar_case?case=4382645725474524824&q=SOcial+security&hl=en&as_sdt=40000003&as_ylo=2014