Ruling underscores value of treating doctor's opinion
Chicago Daily Law Bulletin
August 4, 2008
by MARK D. DEBOFSKY
In a recent Social Security disability ruling, the 7th U.S. Circuit Court of Appeals offered a number of very thoughtful and constructive observations about the assessment of disability.
The case of Bauer v. Astrue, 2008 U.S. App. LEXIS 14484 (7th Cir., July 8), involved a claimant who suffered from bipolar disorder, a mental condition characterized by violent mood swings, between mania and depression. Citing a number of texts and professional journals, the appeals court noted that while the condition can vary in severity and is often amenable to treatment with medication, ''many patients do not respond well to treatment, or have frequent relapses.'' (Citing Kaan Kora et al., ''Predictive Factors for Time to Remission and Recurrence in Patients Treated for Acute Mania: Health Outcomes of Manic Episodes (HOME) Study,'' 10 J. Clin. Psychiatry 114 (2008); Robert G. Bota, ''Therapeutic Dilemmas in Treatment-Resistant Bipolar Patients,'' 101 S. Medical J. 584 (2008); Edward Watkins, ''Combining Cognitive Therapy with Medication in Bipolar Disorder,'' 9 Advances in Psych. Treatment 110 (2003)).
As a result of Christine Bauer's frequent relapses and several hospitalizations, the court noted that her physicians had reported that she was incapable of holding a full-time job. The court cited Bauer's testimony at her Social Security hearing as to how she had been fired from a job due to her condition even though she faithfully adhered to her medication regime.
In contrast, a psychologist involved in the Social Security Administration's review of the claim but who did not examine the claimant reported that Bauer's bipolar disorder only moderately limited her ability to work. Using that opinion as a predicate, a vocational expert testified at Bauer's Social Security hearing that there were numerous jobs she could perform; and the administrative law judge who presided over the hearing denied the claim for benefits.
The appeals court focused much of its criticism on the ALJ's disregard of a specific Social Security regulation known as the ''treating physician rule,'' (20 C.F.R. §404.1527(d)(2)) which ''directs the administrative law judge to give controlling weight to the medical opinion of a treating physician if it is 'well-supported by medically acceptable clinical and laboratory diagnostic techniques' and 'not inconsistent with the other substantial evidence.' ''
Although the Social Security Administration's psychologist contradicted the treating doctors' findings, the court pointed out that his findings did not point out a ''flaw in the treating physicians' analysis, but merely expressed a contrary view after reading the medical files.'' Nor was the court clear as to whether the reviewing professional even possessed ''relevant expertise.''
What seemed to most concern the appeals court, though, was that the reasons given by the administrative law judge for discounting the treating doctors' opinions showed unfamiliarity with bipolar disorder.
For example, the ALJ's findings noted that Bauer dressed appropriately, shops for food, prepares meals, performs other household chores, participates in group therapy, and takes care of her 13-year-old son. However, the court remarked as to those capabilities, ''This is just to say that the plaintiff is not a raving maniac who needs to be locked up.''
Because the plaintiff is heavily medicated, the court observed that she is able to ''cope with the challenges of daily living, and would doubtless enable her to work on some days.'' But that is not enough, according to the court. Moreover, evidence in the record showed that Bauer's son did most of the cooking and housework.
In addition, the court was critical of the ALJ's focus on hopeful notes in the medical records such as that Bauer's memory was ''OK,'' that she was doing ''fairly well,'' or that she had ''a brighter affect and increased energy.'' While the ALJ deemed those notations as a basis for discounting the treating doctor's opinion, the court pointed out, ''A person who has a chronic disease, whether physical or psychiatric, and is under continuous treatment for it with heavy drugs, is likely to have better days and worse days; that is true of the plaintiff in this case.''
Even if she were well enough to work half the time, that would mean she would also be incapable of working half the time. Hence, ''she could not hold down a full-time job.''
Indeed, as the court added, ''That is likely to be the situation of a person who has bipolar disorder that responds erratically to treatment. Ronald C. Kessler et al., ''The Prevalence and Effects of Mood Disorders on Work Performance in a Nationally Representative Sample of U.S. Workers,'' 163 Am. J. Psychiatry 1561-68 (2006).''
The court then turned to the distinction between medical and vocational opinions. Implying that doctors lack the qualifications to opine on vocational issues, the court nonetheless noted that it may be apparent to ''medical experts that the patient has a physical or mental condition that prevents him from performing on a full-time basis any jobs having particular requirements; as long the medical experts understand those requirements, they may report or testify that the patient is unable to perform those jobs.''
Although the court ruled that the doctors' judgment with respect to the vocational issues may not be conclusive, in this case ''it was not offset by evidence concerning the availability of jobs to someone having the plaintiff's disorder plus her other characteristics.'' Thus, the denial of benefits was overturned.
Although the Social Security program is governed by statute and regulations, and the treating physician rule has been ruled inapplicable to private disability disputes according to Black & Decker Disability Plan v. Nord, 523 U.S. 822 (2003), this ruling goes far beyond an analysis of the treating physician rule. The court fully recognized that many illnesses wax and wane; and that while there may be times when an individual is capable of working, reliability and consistency are necessary.
That point was also well made in a recent district court ruling, which found: ''Finally, the court notes that a total-disability determination cannot reasonably hinge on whether an employee is minimally capable, on a good day, at the right hour, of fulfilling her job duties in barely tolerable fashion. Qualification for employment requires an ability to work effectively and to be reliable.'' Peterson v. Federal Express Corp. Long-Term Disability Plan, 2007 U.S. Dist. LEXIS 41590 *103 (D. Ariz., June 4, 2007); also see, Black v. Jefferson Pilot Financial Insurance Co., 2006 U.S. Dist. LEXIS 1186 (W.D. Ky., Jan. 12, 2006) (''Jefferson Pilot's conclusion that 'if a fellow can hike the woods in pursuit of the elusive wild turkey, he can surely do some kind or work' fails to consider the entire question'' of whether someone can maintain work and earn a salary).
The cherry-picking from the medical records has also been an issue in private disability insurance litigation. BothGawrysh v. CNA Insurance Co., 8 F.Supp.2d 791, 794 (N.D. Ill. 1998), and Thorpe v. Continental Casualty Co., 2002 U.S. Dist. LEXIS 24405, *12-13 (E.D. Pa. 2002) (citing Skretvedt v. E.I. Dupont de Nemours & Co., 268 F.3d 167 (3d Cir. 2001)), teach that individual notations of ''improved'' or feeling a ''bit better'' cannot disprove disability.
One issue that the court hinted at, but did not directly comment on, though, has to do with the limitations of a reviewing doctor's opinion in a psychiatric evaluation.
Substantial case law teaches: ''Courts discount the opinions of psychiatrists who have never seen the patient for obvious reasons. Unlike cardiologists or orthopedists, who can formulate medical opinions based upon objective findings derived from objective clinical tests, the psychiatrist typically treats his patient's subjective symptoms.'' Sheehan v. Metropolitan Life Insurance Co., 368 F.Supp.2d 228, 255 (S.D. N.Y. 2005) (citing People v. Espinoza, 116 Cal.Rptr.2d 700, 718-19 (2002); Campbell v. U.S., 307 F.2d 597, 598 (D.D. Cir. 1962); Rollerson v. U.S., 343 F.2d 269, 270 (D.C. Cir. 1964) (''We think it necessary to point out that the value of a psychiatrist's testimony depends largely upon his opportunities for observation and the facts he observes.''); and Jones v. U.S., 327 F.2d 867, 879-80 (D.D. Cir. 1963).
All in all, despite its brevity, Bauer is a major ruling recognizing the realities of mental illness, but which is also of tremendous value in the adjudication of disability claims involving other conditions that vary, such as rheumatoid arthritis and fibromyalgia, and that are best assessed by the treating doctors who not only possess the expertise of their medical specialties but who, over the course of treating a patient over time, possess superior clinical knowledge as to the patient's ability to sustain employment.
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