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Psychiatric Nurse May Show Claimant’s Impairment Severity/Ability to Work


A 40-year-old man applied to the Social Security Commission for benefits because he could not be gainfully employed as a result of psychiatric disorders (primarily depression and bipolar disorder), chronic back and hip pain, and an anal fissure.

 

An advanced practice psychiatric nurse (APPN) examined the man. She diagnosed him as suffering from depression after her first evaluation. After her eighth evaluation, she diagnosed him with bipolar disorder. The APPN opined that the man’s mental illnesses would cause him to miss work more than four days each month. To miss four workdays a month would reduce a person's average workweek from five to four days, which would not constitute working on a sustained basis as defined by the Commission. The APPN’s report listed a total of 13 symptoms the man exhibited of poor psychological and social functioning, ranging from paranoia to oddities of thought, perception, speech or behavior. The APPN deemed the man unable to meet competitive standards (requirements for gainful employment) of punctuality; sustaining an ordinary routine without special supervision; working in coordination with or proximity to others without being unduly distracted; and being able to complete a normal workday, accept instructions, get along with coworkers, and deal with normal work stress.

 

An osteopath designated by the Social Security Commission to examine the man after he applied for disability benefits reported that he suffers from lower back pain and trochanteric bursitis (an inflammation near the hip that causes pain in the hip). The osteopath also observed that the man walked with a slow and painful gait. Another physician and a psychologist examined the man's medical records and concluded that despite his physical and psychiatric problems he was capable of performing unskilled sedentary work. Neither examined him, however.

 

The administrative law judge (ALJ) denied the man’s claim on the ground that he was capable of performing unskilled sedentary work and was therefore not totally disabled. The ALJ said that if the man were as psychologically afflicted as the APPN thought, he would need to be institutionalized and/or have frequent inpatient treatment. The ALJ remarked that the fact that the man's parents paid his rent and expenses raised a question as to whether his continuing unemployment was actually due to medical impairments. The ALJ implied the man was a malingerer when he said that the man had made statements during treatment suggesting he actually is eager to work, but was unable to find work, which suggested to the ALJ that the man was not unemployed due to disability.

 

The only other witness at the administrative hearing was a vocational expert (VE). The VE testified on the basis of the ALJ’s findings that the man could do simple sedentary work such as that of an office assistant, security guard, an assembler, or a packager. The VE said that there were 23,000 such jobs in the state where the man lives, but did not explain where he'd gotten that figure. The VE added that anyone who would miss work two or more days per month more than occasionally would not qualify for gainful employment. The ALJ fully credited the VE's testimony.

 

Although concluding that the man was not totally disabled, the ALJ characterized the man's trochanteric bursitis, fissure, depression, and bipolar disorder as severe, while discounting his back pain on two grounds: (1) that he had not taken any narcotic based pain-relieving medications and (2) that the man had not undergone intensive treatment, like injections, which would be expected to be prescribed for a person experiencing disabling pain. The ALJ discounted the man’s health problems resulting from his anal fissure, including bleeding, and poor bowel control that requires him to spend 40 consecutive minutes on the toilet about four times every month, by noting that the man refused to undergo a colonoscopy between 2006 and 2008 and a rectal examination in 2010.

 

The ALJ discounted the man's mental problems on the ground that they had been solved by his taking Cymbalta. That was contrary to the APPN's report, which said that his mental state continued to be disturbed, and though it was exacerbated by his substance abuse she did not consider that the primary cause of his inability to relate to people in a normal way. The ALJ gave very little weight to the APPN's report, however, on the ground that a mere nurse is not an acceptable medical source, and that the APPN had seen the man on only a few occasions.

 

The ALJ concluded that the man’s time at a computer conducting research on his medical problems and playing video games was evidence that he was employable. The ALJ cited treatment notes, and testimony, that indicated that the man was able to persist at activities like online research and enjoyed playing computer games for hours.

 

The man sued the Commissioner of Social Security challenging the ALJs decision to deny the man’s application for disability insurance benefits (DIB) and supplemental security income (SSI). The United States District Court for the Western District of Wisconsin affirmed the ALJs decision.

 

The Seventh Circuit United States Court of Appeals reversed and remanded with instructions. The court held that the ALJ was not competent to make medical conjecture that the treating nurse practitioner's assessment of the man’s mental health problems would have required his institutionalization, the fact that the man's parents paid his rent and expenses did not raise a question as to whether his continuing unemployment was actually due to medical impairments, the man’s statements acknowledging that his long-term unemployment made it harder for him to get a job were not inconsistent with his being disabled, the ALJ improperly discounted the man’s back pain, the ALJ did not provide adequate reasons for giving very little weight to the report of the APPN, the ALJ improperly concluded that the man’s time at a computer conducting research on his medical problems and playing video games was evidence that he was employable, and the ALJ improperly relied on the testimony of the vocational expert.

 

The ALJ was not competent to make medical conjecture that, if the man was as psychologically afflicted as his treating APPN thought, he would have had to have been institutionalized or had frequent inpatient treatment. The ALJ’s conjecture was implausible, given that institutionalization of the mentally ill was generally reserved for persons who were suicidal, otherwise violent, demented, or incapable of taking even elementary care of themselves. The court found the man was none of those things.

 

The fact that the man's parents paid his rent and expenses did not raise a question as to whether his continuing unemployment was actually due to medical impairments. If the man could not work, he had to be supported by someone or by some agency. The court reasoned that the man may have been a malingerer, mooching off his parents, or he may have been more psychologically disturbed than anyone realized. In any event his parents may be continuing to support him because he may now no longer be capable of working.

 

The man’s statements during treatment acknowledging that his long-term unemployment made it harder for him to get a job were not inconsistent with his being disabled. The court reasoned that those statements were consistent with his wanting to lead a normal life yet being unable to land a job because he is disabled from gainful employment by a combination of physical and mental problems that a prospective employer would quickly notice. A disabled person may want to work, may seek work, and in some cases may land work. The court noted that there have been cases in which, although the claimant was not only working but also earning a decent wage, he really was permanently disabled from engaging in gainful activity. Maybe his boss feels desperately sorry for him and is retaining him on the payroll even though he is incapable of working. That act of charity ought not to be punished by denying the employee benefits and thus placing pressure on the employer to retain an unproductive employee indefinitely. Maybe a seriously disabled worker is able to work only by dint of his extraordinary determination and the extraordinary assistance extended to him by kindly fellow workers.

 

The ALJ improperly discounted the man’s back pain on grounds that he had not taken any narcotic based pain-relieving medications and failed to undergo intensive treatment, like injections. The man had illegally taken a powerful opiate pain reliever. The ALJ offered no reason for thinking that injecting steroids or other drugs would have been appropriate for the man. The ALJ failed to consider the natural reluctance of a person with psychiatric problems to take powerful pain medications, as they can have serious side effects if not carefully used. A mentally ill person is more likely to abuse opiates like Vicodin than a healthy person. In addition, opiates can increase symptoms of bipolar disorder.

 

The ALJ did not provide adequate reasons for giving very little weight to report of the APPN. The court held that evidence from nurse practitioners may be used to show the severity of an applicant's impairment and how it affects his or her ability to work. The ALJ erred in holding that the APPN was not an acceptable medical source. The ALJ did not say that the APPN’s eight examinations of the man in two years were too infrequent to have enabled her to assess the trend, first up, then down, in his condition. The court reasoned that the antidepressants may have enabled the man to keep out of mental or other hospitals, but the question the ALJ needed to answer was whether the antidepressants enabled him to obtain gainful employment.

 

The ALJ improperly concluded that the man’s time at a computer conducting research on his medical problems and playing video games was evidence that he was employable. The court held that how a person uses his time at home is not compelling evidence of whether or not the person is employable. The ALJ did not discuss whether the man's online research and game playing was inconsistent with his having severe back pain. The court reasoned that whether the man's online research or playing such games was inconsistent with his having severe back pain would depend on the precise nature of the pain, how comfortable the chair he sits on while using the computer was, and what his alternatives were. The ALJ did not explain his assumption that doing limited online research or playing video games online required the same concentration as required for full-time employment.

 

The ALJ improperly relied on the testimony of the VE that the man could do simple sedentary work such as that of an office assistant, security guard, assembler, or a packager, and that there were 23,000 such jobs where the man lived. The court found that the ALJ should have doubted the VE’s testimony because the VE did not explain the source of the estimate of the number of jobs that the man could perform and the inclusion of “security guard” among those jobs should have caused the ALJ to question the expert's basis for thinking that someone with the man's psychiatric problems would be able to perform such a job without danger to himself and others. The man was unlikely to be able to work as a security guard given his significant mental health problems and expressed irritability toward police officers.

 

The Seventh Circuit United States Court of Appeals reversed the district court’s affirmation of the Commissioner of Social Security’s denial of the man’s application for disability insurance benefits and supplemental security income.

 

See: Voigt v. Colvin, 2015 WL 1346192 (C.A.7 (Wis.), March 26, 2015) (not designated for publication).

 

See also Medical Law Perspectives, December 2014 Report: Beyond the Holiday Blues: When Depression Leads to Liability

 

See also Medical Law Perspectives, October 2014 Report: Backaches and Court Battles: When Chronic Back Pain Leads to Litigation

 

See the Medical Law Perspectives December 9, 2014 Blog: IQ Test Central to Intellectual Impairment Claims for Social Security Disability Insurance 

 

 

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