Bird v. Apfel

• Decision Date: 22 March 1999
• Docket Number: No. Civ. 2:96-CV0841S.,Civ. 2:96-CV0841S.
• Citation: 43 F.Supp.2d 1286
• Parties: Roslyn J. BIRD, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Utah

43 F.Supp.2d 1286

Roslyn J. BIRD, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant.

No. Civ. 2:96-CV0841S.

United States District Court, D.Utah, Central Division.

March 22, 1999.

Carlie Christensen, Asst. U.S. Atty., District of Utah, Salt Lake City, UT, for plaintiff.

W. Paul Wharton, Utah Legal Services, Inc., Salt Lake City, UT, for defendant.

ORDER

SAM, Chief Judge.

Roslyn J. Bird contests a decision of the Commissioner of Social Security, denying her application for supplemental security income under Title XVI of the Social Security Act. See 42 U.S.C. §§ 1381-1383c. The matter is before the court on Mrs. Bird's motion to reverse or modify the administrative decision and the Commissioner's motion to affirm it.

I. Standard of review

Federal courts are authorized to review whether the Commissioner's decision is supported by substantial evidence and based on correct legal standards. 42 U.S.C. § 405(g). "Substantial evidence" must be more than a "mere scintilla" of evidence but may be less than a preponderance; it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

Thus, the court's duty is to "examine the record as a whole, including whatever in the record fairly detracts from the weight of the [Commissioner's] decision and, on that basis, determine if the substantiality of the evidence test has been met" and correct legal principles applied. Casias v. Secretary of Health & Human Servs., 933 F.2d 799, 800-801 (10th Cir. 1991). A court must "neither reweigh the evidence nor substitute [its] judgment" for that of the administration. Id. at 800.

II. The five-step disability evaluation

The Social Security Act defines "disability" as the "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." 42 U.S.C. § 423(d)(1)(A).

The administration follows a five-step process in determining whether a claimant is disabled. 20 C.F.R. § 404.1520 (1998). The first step is to decide whether the claimant is currently engaged in "substantial gainful employment." Id. If so, the claim is denied without further evaluation.

The second step is to decide if the claimant's impairments are "severe." Id. If not, the claim is denied without further evaluation.

The third step is to decide whether medical findings about the claimant's impairments meet or equal the findings listed in Appendix 1 of 20 C.F.R. Part 404, Subpart P. If so, the claim is granted without further evaluation.

The fourth step is to decide whether the claimant's impairments prevent him from performing his "past relevant work." 20 C.F.R. § 404.1520. If not, the claim is denied.

The last step is to decide whether the claimant could engage in other "substantial gainful activity," considering his age, education, and past work experience. Id. If not, the claim is granted.

III. The administrative decision

At the time of the administrative hearing, Mrs. Bird was a 38-year-old woman with a high school education and some vocational training in electronics assembly. (R. 80 & 246-248.) She alleged disability since January 1, 1989, due to intestinal and back problems and depression. (R. 45 & 51.) She had prior work experience in electronics assembly. (R. 80 & 200.)

At the first step of the sequential evaluation, the administrative law judge (ALJ) found that Mrs. Bird had not engaged in substantial gainful activity since January 26, 1994. (R. 34, finding 1.) At the second step, he agreed she had "a severe impairment" but did not specify what the impairment was. (R. 32.) He did find medical evidence of "dysthymia, irritable bow[e]l syndrome with constipation, complaints of back pain, and possible carpal tunnel syndrome." (R. 34, finding 2.)

At the third step, the ALJ decided the medical findings of Mrs. Bird's impairments did not meet or equal any listed impairment. Id. He considered her testimony regarding the severity of her impairments "exaggerated because ... not supported by objective clinical testing of record." (R. 34, finding 3.) He found no exertional limitations on her capacity for work-related activities and only one nonexertional limitation: she could not follow complex instructions. (R. 34, finding 4.)

Since Mrs. Bird's prior work as an electronics assembler did not require her to follow complex instructions, the ALJ concluded at the fourth step that she could return to her past relevant work and therefore was not disabled. (R. 34, findings 5-7.)

IV. Issues on appeal

Mrs. Bird's attorney argues that the ALJ's decision was not supported by substantial evidence and that the ALJ erred in discounting the opinion of a treating social worker, Mike Flowers, LCSW, who submitted his assessment on a Psychiatric Review Technique Form.

V. Summary of the medical evidence

After reviewing the administrative record, the court agrees there is little evidence that Mrs. Bird has a disabling physical impairment.¹ According to the medical reports, she does have a "long history of recurrent ear infections" (R. 153; see R. 182-183, 199, 210), chronic irritable bowel symptoms (R. 182 & 187), and chronic peptic disease² (R. 151 & 161). But there is no evidence these impairments have limited her ability to perform work-related activities.

However, the medical reports show two serious mental impairments: an organic mental disorder and an affective or anxiety-related disorder. (R. 117.) The organic mental disorder is a "learning disability"; Mrs. Bird has "low average" intelligence and "borderline retarded" memory functioning.³ (R. 119, 157-158.) The nature and severity of her affective or anxiety-related disorder are more difficult to assess.

Records from the Tooele Valley Regional Medical Center indicate Mrs. Bird was suffering from depression during September-November 1989. Her doctor prescribed Prozac. (R. 149, 150.)

She has been treated at a Salt Lake Community Health Center since October 1992. Her main treating physician there was Dr. Yong Hui Ahn. (R. 162-199, 206-226; see 107, 153-154.) Dr. Ahn recognized "a large component" of depression in this patient (R. 182). Dr. Ahn and her colleagues observed in their treatment notes that Mrs. Bird often appeared anxious or agitated (R. 164, 166, 182, 183), looked very sad or depressed (R. 166, 168, 189), was tearful (R. 165, 194), had dramatic mood changes (R. 174); had difficulty sleeping (R. 169, 187, & 216), was obsessive (R. 166), showed "poor coping" skills (R. 165), felt overwhelmed (R. 165), acted nervous or was "wringing her hands" (R. 168, 187), had "anxiety attacks" (R. 187), was "counseled regarding anxiety/panic behavior" (172), and requested refill of antidepressants (R. 208).

Dr. Ahn's diagnosis was "anxiety with depressive features." (R. 166 & 168.) She wrote "anxiety/depression" repeatedly in the treatment notes. (E.g. R. 163, 197.)

Dr. Curran, another physician at the Health Center, called Mrs. Bird's impairment "[c]hronic agitated depression." (R. 208.) And Dr. Milam similarly reported that Mrs. Bird was suffering from "agitated depression with acute exacerbation." (R. 217.) Treatment notes for September 20, 1994, indicated that "[m]ore than 50% of [the doctor's] time spent with this patient was in counseling." Id. Mrs. Bird was "suicidal in ideation but not in plan." Id. She had "trouble sleeping, exhibit[ed] anhedonia and decreased libido," and was "somewhat aloof and with a wall built around herself, not responding to comforting gestures very easily." Id.

The Health Center's "Problem List" for Mrs. Bird specifies "Anxiety/Depression" as a main concern. (R. 199, 206.) Valium and Xanax were prescribed.⁴ (R. 160, 206, 217).

The doctors referred Mrs. Bird for counseling with a licensed clinical social worker at the Health Center, Mike Flowers. (R. 172.) Mr. Flowers noted that she had been "verbally fighting with neighbors," "talk[ed] about isolating herself ... from relatives as well," "impos[ed] a self created isolation on herself," was "[e]motionally out of control in almost every situation that demands reaction to stress," feared other people, and had low self-esteem. (R. 170 & 173.)

Mr. Flowers reported that Mrs. Bird suffered from a depressive syndrome and an anxiety-related disorder. (R. 233 & 234.) He opined that she had "Panic Disorder with Agrophobia [sic]":

Her reaction to people is through panic, and her intent is to be perfect in carrying out instructions as she is afraid of any criticism ... The people she is afraid of include almost everyone from work place supervisors, to recognized authority figures, to neighbors and strangers. Most of the time she will stay indoors rather than go even into her own back yard. She reports that a vacation for her is two weeks in bed rather than confront other people outside of her zone of security. If it were not for her husband and children she would probably try to disappear away from people as far as she could. She will awake several times at night in fear

...

It is my impression that with appropriate attention she may eventually change and be able to work....

(R. 229.)

In April 1994, Mrs. Bird was evaluated by a consulting psychologist, Dr. Louis F. Morse, who performed intelligence and memory testing, a mental status examination, and a clinical interview. (R. 155.) Dr. Morse reported:

Her mood today was fairly bright and upbeat although she became tearful at times when faced with test problems she could not solve. She said of her usual mood state, "I take Xanax for my nerves. I have mood swings. I worry a lot about my mom, the kids and the neighborhood we live in. I don't have energy and I get tired fast. I can't sleep and I don't feel like eating."

(R. 157). He found her motor...