Chronic Schizophrenia, Hallucinations, Bipolar Disorder and Poor Judgment.

On appeal, the claimant argued that the Administrative Law Judge’s residual functional capacity assessment was contrary to his treating psychiatrist’s opinion.

Among other errors, the district court found that the ALJ “misunderstood” the treating psychiatrist’s opinion where the doctor had stated that one of the claimant’s symptoms was “retardation.”  In fact the psychiatrist identified not retardation which is determined by an I.Q. test, but “psychomotor agitation or retardation.”

The court went on to define psychomotor retardation as a long established component of depression or bipolar disorder:  “in the depressive phase that is observable as marked speech abnormalities, such as lengthy pauses and lowered volume of speech; characteristic eye movements, such as fixed gaze and poor maintenance of eye contact; gross psychomotor slowing, including movement of the hands, legs, torso, and head, slumped posture, and increased self-touching, especially of the face.” (Citations omitted.)

In remanding the case, the court described the ALJ’s decision as “not consistent with the requirements of law and is not supported by substantial evidence.”

COMMENT

The code of federal regulations, 20 CFR, Appendix 1 to Subpart P of Part 404—Listing of Impairments, for listing 12.04, defines affective disorders as: “Characterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome. Mood refers to a prolonged emotion that colors the whole psychic life; it generally involves either depression or elation.”

“Psychomotor agitation or retardation” is listed as a sign or symptom under section A of the listing.

Badi v. Commissioner of Social Security, Case No. 6:12-cv-1733-Orl-DAB (D. M.D. Fla., Orlando Div., March 6, 2014).

http://scholar.google.com/scholar_case?case=2416766136534139588&q=social+security&hl=en&as_sdt=40000003&as_ylo=2014lk

Unspecified Arthropathy, Schizophrenia, Bipolar Disorder, and Cocaine Abuse.

The magistrate judge recommended that the Administrative Law Judge’s decision be affirmed.

Among other issues, on appeal the claimant argued that the ALJ should have given his social worker’s opinion controlling weight (see Mar. 18, 2014, blog entry below regarding acceptable medical sources).  The magistrate judge noted that: “Several courts have concluded that where a licensed social worker or other unacceptable medical source is working as part of a treatment team and an acceptable medical source has ‘signed off’ on the opinions, they should be evaluated as a treating physician opinion, but that does not appear to be the case here.”

In this instance, Social Security responded: “Dr. MacAuley did not sign Mr. Greenfield's opinion and while her name is written on the report in the space for ‘treating psychiatrist,’ it appears to be in the same handwriting as the remainder of the report, which was prepared by Mr. Greenfield.” The magistrate judge agreed that there was no evidence that the social worker’s opinions had been endorsed by the psychiatrist.

The claimant also objected to the ALJ’s conclusion that the claimant was not credible.  The magistrate judge noted:

“While plaintiff contends that he cannot read or write, the ALJ recounted that plaintiff’s allegations regarding his ability to read and write contained numerous inconsistencies. . . . For example, the ALJ found it suspicious that plaintiff did not claim illiteracy in either of the prior disability applications that are part of the record. . . . In fact, as the ALJ noted . . . plaintiff specifically indicated that he could read and write English in the May 2006 adult disability report. . . . The ALJ further noted that plaintiff’s allegation of illiteracy was inconsistent with his school record, which documented that he received a grade of "B-" in reading . . . and that plaintiff was able to obtain his driver’s license in spite of alleged difficulties reading or writing . . . . While there were contrary indications in the record that supported plaintiff’s claim that he could not read or write, the ALJ’s credibility determination is entitled to substantial deference; and here, the ALJ has cited substantial evidence to support his conclusion that plaintiff’s illiteracy claim was not entirely credible.”

COMMENT

While illiteracy, like many other concepts, has legal definitions, many people may mistakenly use the term to describe difficulties with reading and/or writing.

Social Security regulations define illiteracy in 20 CFR 404.1564(b):  “(1) Illiteracy. Illiteracy means the inability to read or write. We consider someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists even though the person can sign his or her name. Generally, an illiterate person has had little or no formal schooling.”

Students can be given social promotions in school and may earn a satisfactory grade for effort rather than mastery of subject matter.  Some states have allowed illiterate people to take oral tests for driving licenses.  Sometimes people obtain driving licenses through illegal means.

Because it is difficult to know what we don’t know especially when legal meanings are involved, it helps to have sounding boards, such as a personal advocate and a disability representative.  In any case, errors made initially on Social Security forms need to be identified and addressed as soon as possible.  

The result of not presenting a consistent functional ability statement can be a denial.

Martin v. Commissioner of Social Security, Case No. 13-10420 (D. E.D. Mich., S. Div., Feb. 17, 2014).

http://scholar.google.com/scholar_case?case=7618212488224661100&q=social+security&hl=en&as_sdt=40000003&as_ylo=2014

Schizoaffective Disorder, Chronic Pain, Personality Disorder, Not Otherwise Specified, With Borderline Features.

In this report and recommendation by a US Magistrate Judge, the court concluded that because of the Administrative Law Judge’s errors, the unfavorable hearing decision should be reversed and the claimant should be paid benefits.

The court, quoting Social Security Ruling 96-6p, found that the ALJ had not properly evaluated the conclusions of a Social Security consultative psychologist (Dr. Buxton). The ruling states that an ALJ “must consider and evaluate any assessment of the individual’s [residual functional capacity] by a State agency medical or psychological consultant and by other program physicians or psychologists.” The court emphasized that: “This requirement is mandatory. The ALJ did not do so with regard to Dr. Buxton's opinion.”

The court further stated that the ALJ failed to mention the claimant’s more current records.  The court noted:  “It is clear that the ALJ must consider all the record evidence and cannot ‘pick and choose’ only the evidence that supports his position. [Citation omitted.]”

Dr. Buxton “determined that other than for relatively brief intervals of time, she might well not perform in a reliable and dependable fashion as an employee secondary to the negative impact from her Schizoaffective Disorder and pain complaints on her functional capabilities as well as the possibility of any breakthrough seizures.”

“Dr. Buxton further found that with the accumulation of frustration and stress claimant would encounter in the job setting, she might well have exacerbation in the epileptiform seizures. Additionally, he determined that with the accumulation of frustration and stress, one might also see some exacerbation in her Schizoaffective Disorder, an increase in her pain complaints, and a tendency to act or behave in a fashion that might work to her own demise.”

The court concluded:  “Dr. Buxton's opinion indicates that claimant would be unable to work until she demonstrated ‘significant improvement’ in her overall functional status. At this point, the medical records demonstrate that she has not.”

Foreman v. Commissioner of Social Security, Civil Action No. 12-2833 (D. W.D. Louisiana, Lafayette Div., Jan. 30, 2014.

http://scholar.google.com/scholar_case?case=15802539031846521298&q=social+security&hl=en&as_sdt=40000003&as_ylo=2014

Depression, post-traumatic stress disorder, scoliosis of the spine.

The claimant was 20 years old when she filed her application.  She saw Social Security consultative examiners, a medical doctor and a psychologist, and the Administrative Law Judge ultimately relied on their opinions.

On appeal the claimant argued, among other issues, that the ALJ erred in not fully evaluating the report and opinion of the consultative psychologist, Dr. Watson, that she saw on behalf of the Legal Aid Society (presumably her representative).  Dr. Watson’s “diagnostic impression was major depression, recurrent, severe with psychotic features, post-traumatic stress disorder and personality disorder.”  The claimant also argued that the ALJ erred in not fully evaluating the reports and opinion of her treating social worker.

The court noted that Social Security rules and regulations do not require the ALJ to explain his reasons for rejecting the opinion of a non-treating source.  Social Security also categories treating sources, such as social workers, as “not an acceptable medical source,” and thus not entitled to the same evaluation as a treating doctor.  See 20 CFR 416.913(a); Social Security Ruling 06-03p.

In affirming the denial of her claim, the court noted that according to the medical evidence the claimant said she had left one position because of lack of transportation, not because of impairments, and that she had continued to look for employment.  The court also noted that when the Social Security consultative psychologist asked her why she could not work, “she was unable to state any reason.”

COMMENT

1.  Explaining why you cannot work is an essential part of your disability application.

2.  SSR 06-03p states:

“[The] regulations provide specific criteria for evaluating medical opinions from ‘acceptable medical sources’; however, they do not explicitly address how to consider relevant opinions and other evidence from ‘other sources’ listed in 20 CFR 404.1513(d) and 416.913(d). With the growth of managed health care in recent years and the emphasis on containing medical costs, medical sources who are not ‘acceptable medical sources,’ such as nurse practitioners, physician assistants, and licensed clinical social workers, have increasingly assumed a greater percentage of the treatment and evaluation functions previously handled primarily by physicians and psychologists. Opinions from these medical sources, who are not technically deemed ‘acceptable medical sources’ under our rules, are important and should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file.”
 
The regulations do not require adjudicators to treat the opinions of these treating medical professionals in the same manner as those of the “acceptable medical sources.”




Howlett v. Commissioner of Social Security, Civil Action No. 3:13-CV-744-DW (D. W.D. Kentucky, Louisville, Jan. 30, 2014).

http://scholar.google.com/scholar_case?case=18265780819801989592&q=social+security&hl=en&as_sdt=40000003&as_ylo=2014

 

Grid Rules

The Administrative Law Judge applied Social Security’s medical-vocational rules, also known as the Grid, to find the claimant disabled as of September 1, 2010.  As of that date, the ALJ considered the claimant to be part of the category of individuals of advanced age, age 55 or older.

The claimant appealed to the district court arguing that she was disabled prior to September 1, 2010.  Among other argument, she asserted that the ALJ erred in relying on the state reviewing physicians, rather than her treating doctors, and the ALJ erred in evaluating her pain and credibility.

By relying exclusively on the Grid rules, the ALJ essentially denied the claimant’s case until she could be considered in the age 55 category.  The district court sustained the decision.

The court noted that:

“The Grid considers the vocational factors of age, education, work experience, and [residual functional capacity], and serves to establish disability by synthesizing these factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(a). Under the Grid, age is divided into three categories: younger person (18-49); person closely approaching advanced age (50-54); and person of advanced age (55 and over) 20 C.F.R. §§ 404.1563(c)-(e).”

The court continued:  “The ALJ correctly applied the Grid at Step 5 to find that Plaintiff is a person of limited education, with no transferable skills, who is unable to perform her past relevant work.”

COMMENT

Especially for an older worker, the Grid Rules can mean the difference between being found disabled or not disabled.

Bubeck v. Commissioner of Social Security, Case No. 3:12-cv-333 (D. S.D. Ohio, Western Div., Dayton, Jan. 9, 2014).

http://scholar.google.com/scholar_case?case=6425901031198003621&q=social+security&hl=en&as_sdt=40000003&as_ylo=2014

Diabetes, Peripheral Neuropathy, Charcot Foot.

The claimant complained of “diabetes, degenerative discs in her back, high blood pressure, bronchial problems, arthritis, and swelling and numbness in her right foot.”  The Administrative Law Judge “found that Plaintiff suffered from diabetes, a back disorder, obesity, and chronic obstructive pulmonary disease . . . .”

In this appeal, the claimant argued that the ALJ’s residual functional capacity assessment did not include all of her limitations and that the vocational expert’s testimony was based on a hypothetical that did not include all her limitations.

The claimant testified at the hearing that she had “severe arthritis in her feet and legs such that they swell up if she stands too long; she had one disc replaced and two more degenerative discs; when she tries to walk a little distance her whole left side stiffens up on her. . . . The pain in her back from the arthritis causes her pain which goes straight down the left side of her body down to her leg and foot. . . . Plaintiff also testified that she had severe peripheral sensory neuropathy, or nerve damage, in her feet, legs, arms, and hands; she was losing feeling in her hands due to the peripheral neuropathy. . . . Plaintiff has also had issues with swelling in her feet, legs, hands, and whole body at times; arthritis in her right hand also caused swelling at times. . . . Plaintiff further testified that her diabetes was not controlled, but went from one extreme to another; she failed to take the medication because she could not always afford it. . . . She would opt not to take her insulin at night, but only take it in the morning; she would not be able to take the dose at night because she did not have enough. . . .”

The court cited medical evidence that:  “Over the following twelve months between fall of 2009 and 2010, Dr. Mason opined that the claimant was suffering from ‘severe peripheral sensory neuropathy,’ Charcot in her right foot, and ‘quiescent Charcot on the left.’”

The court also observed that: “Diabetic Charcot foot arthropathy is one of the most serious foot problems that diabetics face, and it is a result of nerve damage or neuropathy that leads to a loss of sensation in the feet; diabetes also damages blood vessels, which decreases the blood flow to the feet and poor circulation weakens bone, and can cause disintegration of the bones and joints in the foot and ankle; the combination of bone disintegration and trauma can warp and deform the shape of the foot.” (Citations omitted.)

With regard to the issue of noncompliance with medical advice, the court found that, “The ALJ went to great length to describe [the claimant’s] noncompliance, even misstating and mischaracterizing some of the evidence, and failed to discuss [the claimant’s] inability to afford the insulin medication.”

The court ruled that the ALJ erred by failing to recognize the claimant’s “peripheral neuropathy, including specifically her Charcot foot problems, as a severe impairment and include limitations from these impairments, particularly related to sitting and walking” in his residual functional capacity assessment and hypothetical.


Further the court found that “the ALJ failed to adequately discuss, in the context of Plaintiff’s noncompliance, her inability to afford her insulin and other medications, as he is required to do” and the ALJ compounded his error “by significantly mischaracterizing the records of noncompliance or citing records not in the Record at all.”
  
The case was remanded.

Smith v. Commissioner of Social Security, Case No. 6:13-cv-52-Orl-18DAB (D. M.D. Fla. Orlando Div., Mar. 4, 2014).

http://scholar.google.com/scholar_case?case=5844755478761882733&q=social+security&hl=en&as_sdt=40000003&as_ylo=2014

Coronary Artery Disease, COPD, Depression and Anxiety

The Administrative Law Judge found that the claimant exhibited “the signs and symptoms of the following severe combination of impairments: chronic obstructive pulmonary disease [COPD]; hypertension; ischemic cardiomyopathy (due to coronary artery disease) . . . gastroesophageal reflux disease; adult onset type II (non-insulin-dependent) diabetes mellitus; obesity; depression; and anxiety.”

On appeal the claimant, among other issues, asserted that the ALJ erroneously discounted his credibility. 

 

The claimant testified that because of his cardiac and other problems, he had extreme limitations in physical activity “as he ‘runs out of air’ when engaging in simple activities of daily living.”

The ALJ’s decision pointed out that while the claimant asserted that his 2001 heart attack changed his life “big time,” the claimant continued working at his job for eight years.

The ALJ also noted that the claimant said that “he mowed the grass weekly, went shopping, and attended church weekly. . . .”

Additionally, the ALJ stated that when the claimant received unemployment benefits, he was certifying that he was “ready, willing, and able to work” and had been looking for work.

“[T]he ALJ specified that despite plaintiff's testimony of difficulty breathing with activity, lower extremity pain and numbness, generalized fatigue, and disabling mental impairments . . .  plaintiff did not report any of these to his treating cardiologist . . . .”

The district court sustained the ALJ decision on all the issues including credibility, stating: “The inconsistencies between plaintiff’s hearing testimony and prior statements regarding his activities of daily living provide substantial support for the ALJ’s credibility finding.”

COMMENT

This case shows several credibility problems for the claimant.

The ALJ’s decision pointed to inconsistencies between a Social Security function report in the file and what the claimant was actually doing (continuing to work).

The claimant was also reported to be mowing the grass weekly and shopping and attending church services without further extenuating explanation. 

Also, very damaging, the claimant’s medical records did not include any contemporaneous reports to his cardiologist regarding the disabling symptoms that he testified about.

The claimant had applied for unemployment benefits during his claimed period of disability.

Applying for unemployment benefits is a known “problem” in a disability application that should never be left unexplained.  A person might apply for unemployment benefits seeking a job with only limited hours or the ability to work from home or a job that would otherwise accommodate his disabling impairments.  Although doubtful of finding a job he could do, a person might apply for unemployment benefits because it was required of him by a welfare office.

Comberger v. Commissioner of Social Security, Case No. 1:13-cv-24 (D. S.D. Ohio, Western Div., Feb. 3, 2014).

http://scholar.google.com/scholar_case?case=6863374189244267371&q=social+security&hl=en&as_sdt=40000003&as_ylo=2014