From: Jerry Bolnick
MEMO:
From: Jerry Bolnick
To: K Boyle
Date: Jan. 17, 2001
Re: U v. SSA
U v. SSA
IINTRODUCTION
In the Office of Hearings and Appeals Decision the ALJ applied an analysis at Step 5 of the “sequential evaluation process” prescribed in 20 C.F.R. § 416.920. The ALJ acknowledged that at Stage 5 the burden of proof shifts to the Social Security Administration; the SSA must show that there are alternative jobs (existing in significant numbers) to which the claimant is able to perform. The ALJ acknowledged that a strict application of the Medical-Vocational Rule (“the Grid”) was not possible, as the claimant had non-exertional limitations. The ALJ found that the Grid did not establish U as disabled. Based on his final weighing of the evidence the ALJ found that 1) U’s conditions left him unable to perform the full range of light work he had previously done; 2) U was capable of making an adjustment to new work, with jobs existing in significant numbers in the national economy; therefore, 3) U was not disabled.
In addressing U's non-exertional limitations the ALJ characterized limitations as “full range of light work diminished by (U’s) inability to drive; to work at unprotected heights, near heavy machinery or near machinery with exposed moving parts. He is also limited to occasional interactions with others.” The ALJ based his findings on U’s juvenile myoclonic epilepsy; bipolar disorder, hypomanic type; (and) ETOH dependency in remission. The ALJ made further findings that U’s alcoholism “is not a contributing factor material to the determination of disability” (Plaintiff’s Motion p. 1, Points and Authorities, Line 20).
At Step 3 of the evaluation process, the ALJ found that U had no impairments which met the criteria of any listed impairments. At Step 4 the ALF found that U was not able to perform his past work.
IISTANDARD OF REVIEW
The District Court must affirm the judgment of the Commissioner if the determination was supported by substantial evidence and the denial of benefits was free of legal error. Baxter v. Sullivan, 923 F2d 1391, 1394 (9th Cir. 1991). Where the evidence as a whole can support either outcome (determination of disability or non-disability), “(a reviewing court) may not substitute (its) judgment for the ALJ’s.” Key v. Heckler, 754 F2d 1545, 1549 (9th Cir. 1985)(cited with approval by the court in Alsobrooks v. Chater, 92 F3d 1191, 1192, (9th Cir. 1996).
1
IIIISSUES BEFORE THIS COURT:
A.Were the ALJ’s findings 1) based on legal error, or 2) unsupported by substantial evidence?
B.If the ALJ’s Decision was unsupported by substantial evidence, was it related to:
1.An improper discounting of Dr. DeBoskey’s submitted evidence;
2.An improper discrediting of U’s and lay testimony;
3.An improper Combined Effects evaluation;
4.An improper Step 5 evaluation; and/or
- A failure to fully develop the evidentiary record
Before analyzing these issues, we must first review the factual record.
IVFACTUAL RECORD
A.Step 3: Listing of Impairments
Plaintiff U’s first argument is that the ALJ erred in his Step 3 analysis, by making an insufficient analysis of the combined effect of the several impairments.
In U’s Summary Judgment Motion he lists his pertinent medical conditions as: chronic depression or bipolar mood disorder, violence outbreaks, diabetes, occasional major seizures and more frequent minor seizures. U argues that the combined effects of these conditions constituted episodic limitations disability. The ALJ in his Decision did not discuss U's condition of diabetes. The ALJ also did not directly address, as a medical condition, what U called violence outbreaks.
B.Possible medical conditions not argued before the ALJ
1.Brain Trauma
There are references throughout the record of U having sustained a major head injury 10 years before the ALJ hearing, and that many of his symptoms began or intensified after that incident. In fact, it was at approximately the time of U's head injury that he left his job of 2 years at Gilmore Envelope Co. U self-reports that until he suffered this head injury, his childhood seizures had subsided. In the ten years previous to the ALJ hearing U had only one job, lasting approximately 3 to 4 months. An examining neurologist in a SSA report date 1/21/98 referenced that:
Patient describes an incident at age 20 during which he was struck on the head no less than
5 times with a baseball bat resulting in approximately 130 stitches...patient recognizes this
as the cause of his present seizure activity. (Exhibit 5F/2).
In this report the SSA examining physician gave U a diagnosis of juvenile myoclonic epilepsy, and opined that U’s work environment should be restricted and he should not work at heights or around
hot objects such as around stoves or heavy machinery. (Exhibit 5F/2). Id.
U describes various mental impairments which are sporadically referenced in his medical record. The paralegal representing U should have given his “baseball bat episode” much greater importance. For example, in U’s Disability Report dated 12/4/97, U wrote, “the doctor said I cant handle a job because my brain is damage (sic).” Which doctor was U referencing, and was he ever interviewed regarding this statement? U’s paralegal should have addressed potential organic brain injury, and to have sought comprehensive neurological testing.
Many of U’s symptoms are signs of possible organic brain disorder, e.g. DSM-IX 294.1, Dementia Due to Head Trauma. The DSM-IX writes of this disorder:
A variety of other behavioral symptoms may be evident...(including) aphasia, attentional
problems, irritability, anxiety, depression...increased aggression...Alcohol or other Sub-
stance Intoxication is often present in individuals with acute head injuries, and concurrent
Substance Abuse or Dependence may be present. DSM-IX, p. 148. (emphasis added).
2.Mental Retardation
U’s testimony at the ALJ hearing indicates that his academic history since grammar school was obtaining D's and F's, and that he quit school during the 10th grade. (ALJ Hearing Transcript page 24/File page 51). U also testified that he had significant memory problems. Id.. These are indications of possible borderline mental retardation diagnosis, conceivably mild mental retardation. Standardized intelligence tests could provide critical medical evidence of U’s intellectual functioning. U’s paralegal should have considered such testing.
C.Medical Conditions presented to the ALJ
1.Bi-Polar Disorder
Based on the record, U was diagnosed by his treating psychiatrist, Dr. DeBoskey, with Bipolar Disorder, Hypomanic Type (Exhibit 9F/5, 5/20/98) and Bipolar Disorder, Severe (Exhibit 12F/1, 3/12/99). Episodic depression is a necessary component in a diagnosis of Bipolar Disorder.
U's medical record indicates that he has had frequent episodes of major depression, suicidal ideation, and suicide attempts.
2.Epilepsy
In the report dated 5/20/98 Dr. DeBoskey referenced that U was being prescribed dilantin (anti-seizure medication) from another doctor, but he did not list epilepsy or seizures as a diagnosis (epilepsy is not a psychiatric condition). (Exhibit 9F/5, 5/20/98). In his report dated 3/12/99, however,
Dr. Debosky did reference Epilepsy as a diagnosed condition. (Exhibit 12F/1, 3/12/99).
3.Violent Outbursts
Despite Dr. Debosky’s references to U's symptoms of impulsive and violent behavior, he never listed a specific diagnosis regarding this behavior. Dr. DeBoskey, for example, could have given a possible psychiatric diagnosis of Intermittent Explosive Disorder, DSM-IX Classification 312.34.
The record does not establish an impulse-control medical condition, although there are testimonial and medical references to U’s violent behavior. In his report dated 5/20/98 (Exhibit 9F/5) Dr. DeBoskey described U’s bouts of agitated, impulsive and angry behavior after the cessation of alcohol. In Dr. DeBoskey’s report dated 3/12/99 (Exhibit 12F/1) he referenced U’s symptoms of “agitated, impulsive and angry behavior, inability (to) respond to authority, and history of violent outbursts.” Dr. Debosky, however, never gave U a specific diagnosis for his violent impulse-control problems.
There is testimonial evidence of U’s impulse-control problems. In his Decision the ALJ wrote of U’s testimony that: “He gets mad, and he could sit here and snap; He can’t be around people...He said he had a fight with his last boss. He hit him with his fist, and went to jail for four days. He said at home, he breaks windows and breaks down doors.” In addition, U’s father testified at the hearing, describing his son's frequent violent episodes. He testified that since his son stopped drinking his outbursts have not been as violent, but that they still occur. He testified that he had to call the police due to his son’s violent outbursts. (Hearing transcript p. 56). He testified that he felt his son’s “violent outbreak(s) and (his) seizures (were) tied in together.” (Hearing transcript p. 61).
The ALJ did not directly address U’s impulse-control problems in making his final findings, probably reflecting the fact that there was not a medically diagnosed condition. One must infer that the ALJ did address the issue, reflected in the fact the ALJ found that U’s future employment would need to be limited to occasional interactions with others.
The record did not establish that U’s violent outbursts were severe enough to be a medical condition, and the ALJ did not err in his consideration of U’s violent history.
4.Diabetes
Although the condition of diabetes was not argued at the ALJ hearing, the record before the hearing did mention this condition. However, U’s record is sporadic in documenting his diabetes. On 9/14/88 he was diagnosed with non-insulin diabetes (Exhibit 1F/33), and on 5/21/95 he was diagnosed with diabetes mellitus (Exhibit 1F/55). Yet in many medical records there is only mention of possible borderline diabetes (e.g. Exhibit 1F/61; 5/25/90); and in other records there is no mention of diabetes at all. The record appears to contain no remarks by physicians that U’s diabetes was severe or likely to interfere with his day-to-day activities.
The record established that the ALJ did not err in his non-consideration of U’s diabetes.
D.Bipolar Disorder
Evidence of U’s Bipolar Disorder was both testimonial and medical. U attacks the ALJ's findings for:
1.Improper discounting of medical evidence; and
2.Improper discrediting of claimant's and other lay testimony
Primarily at issue here is the opinion letter/report of Dr. DeBoskey dated 3/12/99 (Exhibit 12F/1). He wrote: “At present, I find (U) unable to manage any employment due to his psychiatric problems. This report supersedes my report of May 20, 1998 as his condition has not improved as I expected it.” Dr. DeBoskey's diagnosis of U was Bipolar Disorder, Severe; ETOH Dependency in Remission; and (by reference) Epilepsy.
Dr. DeBoskey listed several symptoms as support for his clinical findings:
*inability to handle stress;
*inability to follow instructions in a timely fashion;
*inability to respond to authority or coworkers;
*history of violent outbursts;
*becoming easily agitated;
*lack of energy;
*insomnia;
*memory problems; and
*suicidal ideation;
In his 5/20/98 report Dr. DeBoskey wrote: “Prognosis: The patient is making progress and would not be restricted from working on the basis of his psychiatric condition.” The ALJ in his Decision gave significant attention to the apparent disparity between Dr. DeBoskey’s 5/20/98 report and his 3/12/99 report. It is unquestioned that the two reports describe U’s condition quite differently, with the later report indicating more severe symptoms and a more severe prognosis. Addressing this disparity the ALJ wrote:
Dr. DeBoskey offered no explanation as to why he felt that the claimant could not work. He offered no specific residual functional capacity assessment, nor did he explain (the change
from May 20, 1998)...Dr. DeBoskey failed to submit the requisite objective medical, clinical or
laboratory findings and tests results upon which this conclusion (inability to work) was based.
The ALJ wrote in his Decision that his evaluation of the State Agency physician, testimony of
claimant and claimant’s father, and other (unspecified) objective medical evidence supported a
determination that U had no impairments meeting Appendix 1 criteria.
E.Epilepsy
Evidence of U’s Epilepsy was both testimonial and medical. U’s arguments regarding his Epilepsy were very poorly articulated, but he attempted to argue that the ALJ erred in his evaluation by:
1.Improperly discounting medical evidence; and
2.Improperly discrediting claimant’s and other lay testimony
In his Motion U wrote that the medical evidence showed “Plaintiff had a childhood history and a more recent history of seizures, for approximately the last fifteen years.” (Tr 33-34, 90, 110, 185, 186). During the ALJ hearing U testified that he had seizures “since he was a little kid, that they later went away, that he got hit in the head with a baseball bat when he was about age 21, and that the seizures then reappeared.” (Hearing Transcript p. 33).
On a Consultation Record dated 9/14/88, the physician wrote: “History of childhood seizures x 2 with febrile illness, treated for indeterminate time with phenobarbital. Father + history of seizure disorder treated to present with dilantin. (Exhibit 1F/67).
In a report dated 1/31/98, Dr. Cassini, a neurologist, wrote: “Patient is a 37 year old male with a history suggestive of complex partial seizures.” In the same report he wrote: “Family History: remarkable for seizures. The patient's father has had seizures since his early teens.” (Exhibit 5F/2). Finally, the record showed (as written in the Commissioner's Cross-Motion): “(Dr. Cassini) diagnosed juvenile myclonic epilepsy[1] (Tr. 248). He speculated that it was likely related to cerebellar dysfunction (Tr. 249), despite the 1995 EEG to the contrary.” (Tr. 159).
In his Decision the ALJ wrote: “(U) said he had seizures as a child, but they stopped. He was hit with a bat in the head about 10 years ago, and they started up again. He has a seizure once or twice a month.”
Discussing U’s testimony the ALJ found U compliant with his seizure treatment (dilantin); that U’s doctor had to increase his dose of dilantin; yet U still has two-three seizures per month. Regarding U’s testimony on his seizures the ALJ wrote: “(after seizures U) gets weak and disoriented. It takes
about a day or 6-7 hours to get over seizures, but he is weak for a long time.”
The ALJ then wrote about treatment U had received at San Mateo County General Hospital and
Mills Peninsula Hospital for his seizures. The ALJ made a point to write that U was diagnosed with alcohol-related seizures, implying that the seizures were not of independent, organic origin. Finally, the ALJ wrote:
The State Agency found that...the claimant had no exertional limitations, should take seizure precautions...(and that) the opinion of the State Agency physician is well supported by the claimant’s testimony, the testimony of his father, and other objective medical evidence...
Perhaps the other objective medical evidence the ALJ referred to was an EEG brain scan given to U in 1995. Unfortunately, the ALJ gave no indications what this other medical evidence was. In his Cross-Motion the Commissioner, referencing page 159 of the record, wrote: “Notably, an EEG brain scan was performed in 1995 to rule out epilepsy as a cause of his seizures; the EEG scan was normal (Tr. 159).”
F.Neuropsychological testing not requested by the ALJ
SSA regulations themselves should have given the SSA examining claims officer, and examining physicians, notice that neuropsychological testing could be necessary. 20 C.F.R. Pt. 220, App.1 § 12.00(D) (Documentation of Mental Disorders) states:
The results of well-standardized psychological tests...my be useful in establishing the
existence of a mental disorder...Broad-based neuropsychological assessments using, for
example, the Halstead-Reitan or the Luria-Nebraska batteries may be useful in determining
brain function deficiencies, particularly in cases involving subtle findings such as may be
seen in traumatic brain injury...In cases involving impaired intellectual functioning, a
standardized intelligence test, e.g., the WAIS, should be administered and interpreted by
(a qualified professional)...(emphasis added).
Based on my background in Clinical Psychology, it seems significant to me that U was never evaluated for his psychiatric conditions in a comprehensive manner using standardized tests. Clinical signs of impaired intellectual functioning, brain injury and impulse-control disorder are found throughout the record. No clinician appears to have attempted to rule out such conditions using objective clinical tests. Nor does it appear that objective tests were ever given to aid in diagnosing U’s bipolar disorder.
This is all the more significant because in addressing U’s psychiatric conditions the ALJ himself wrote:
...Dr. DeBoskey failed to submit the requisite objective medical, clinical or laboratory
findings and tests results upon which this conclusion (U’s inability to work) was based.
(Social Security Ruling 96-6p).
In addition to Dr. DeBoskey, no SSA examining doctor appears to have recommended or
administered objective medical tests. This indicates that the ALJ had to make an evaluation without adequate information provided to him, from either the claimant or the SSA. This raises an issue if his decision was based on substantial evidence.
- Summary
On the record that exists U did not directly argue issues of potential mental retardation,
brain injury, or impulse-control disorder. Instead, he focused on a Combined Effects-episodic limitations disability argument, relative to violent outbursts, diabetes, epilepsy and bi-polar disorder. The record showed U’s diabetes to be mild to moderate, and the ALJ properly discounted it. The record did not show U to have a medically diagnosed “violent outburst” condition, and the ALJ gave proper consideration to the evidence concerning this issue. Therefore, the Combine Effects analysis is focused on U’s Bi-Polar and Epilepsy conditions.
IVANALYSIS
A.Several issues are before this court:
1.Were the ALJ’s findings based on legal error or unsupported by substantial evidence?
2.If the ALJ’s Decision was unsupported by substantial evidence, was it related to:
a.An improper discounting of medical evidence (Dr. DeBoskey;
b.An improper discrediting of U’s and lay testimony;
c.An improper combined effects evaluation;
d.An improper Step 5 evaluation; and/or
e.A failure to fully develop the evidentiary record?
B.U’s Bipolar Disorder.
Medical Evidence.
Regarding medical evidence, the ALJ in his Decision acknowledged that the evidence submitted by Dr. DeBoskey was inadequate or incomplete. There is no indication in the record that the ALJ, or prior SSA claims examiners, ever contacted Dr. DeBoskey pursuant to 20 C.F.R. § 404.1512(e)(1). There is no indication that the ALJ ever requested Dr. DeBoskey’s attendance at the hearing, so that he could present additional evidence.
There is no indication that the ALJ ever requested U to obtain a consultative psychiatric examination as a means to try to resolve a conflict or ambiguity in the record, pursuant to 20 C.F.R. § 404.1519a(2). There is no indication that the ALJ, or any SSA employee, ever requested that U take