Here is a hearing brief from a recent case, with changes made to protect the privacy of the claimant. This brief led to a fully favorable on the record decision.
U.S. Administrative Law Judge
Office of Disability Adjudication and Review
Social Security Administration
1750 Elm Street, suite 303
Manchester, NH 03104
Also filed by Electronic Records Express
Re: Jane Smith
This is a pre-hearing memorandum for Jane Smith, who has a hearing scheduled for December 2, 2011 at 9:00 AM in Manchester. The disability claim file contains overwhelming evidence of both physical and mental disability, and her two most important treating sources have completed detailed medical source statements that would preclude work. A hearing is not necessary. Further, the claimant has significant anxiety about the December 2nd hearing itself. If appropriate, I ask you to grant this claim on the record.
Jane Smith, a former nurse, is 54 years old. This Title II claim was filed on 2/20/2009, and has an alleged onset date of 4/02/2008. The DLI is in the future: 12/31/2013.
Jane has been diagnosed with Lyme disease and treated extensively for it. She has the physical impairments of arthritis/degenerative joint disease, chronic knee pain, asthma, sleep apnea, and fatigue. She has the mental impairments of depression and anxiety. Jane has extensive cognitive difficulties, with reduced executive functioning.
The record contains a compelling 2 ¼ page statement from the claimant’s husband John, submitted by electronic records express on 11/22/2011. Mr. Smith’s statement is “other non-medical evidence” under 20 C.F.R. 404.1513(d)(4). The statement offers an excellent short summary of the changes in Jane’s life, and it offers insight into her current level of functioning, particularly her cognitive functioning.
You have the benefit of an extensive medical record, with several neuropsychological consults.
Exhibit 6F – An extensive neuropsychological evaluation with testing was completed over two days by Catherine Monaco, a clinical neuropsychologist and license clinical psychologist (exhibit 6F). The testing showed notable weakness within the areas of processing speed and complex visual organization/integration. Dr. Monaco concluded “a number of factors are likely contributing to her current difficulties” including depression and anxiety, perhaps sleep apnea or menopause, and “the cognitive effects of Lyme disease” (exhibit 6F, page 7, Conclusion section).
Exhibit 8F – The treatment notes of John Rescigno, M.D from Derry Neurological Associates are at exhibit 8F. His impression on 8/15/2008 was “this is a woman with cognitive impairment (8F, page 3). His progress notes cite memory and concentration problems, and he identified “multiple potential causes for difficulties focusing.” (8F, page 1, last paragraph). His notes also discuss “OCD like” hoarding behavior – Jane will not throw away junk mail for fear that it may have value. She started not letting go of the newer type of quarters, thinking they have a greater value than just 25 cents (see exhibit 8F, page 2, top two paragraphs).
Exhibit 9F – There is a neurological consult by Maureen Hughes, M.D., a Board certified neurologist, at Dartmouth-Hitchcock. Her report also identified cognitive issues but Dr. Hughes could not identify a single cause among the multiple potential causes of depression, anxiety, sleep apnea or Lyme disease. As a way to narrow down potential causes for Jane’s cognitive impairment, Dr. Hughes suggested counseling for the anxiety and depression, followed by retesting (exhibit 9F).
Exhibit 7F – The treatment records of primary care provider Dennis Rork, M.D. at Londonderry Family Practice are at exhibit 7F. Updated records were filed by electronic records express on 11/9/2010. Dr. Rork completed Social Security form HA-1151-BK, the Medical Source Statement of Ability to do Work-Related Activities (Physical) and HA-1152-U3, the Medical Source Statement of Ability to do Work-Related Activities (Mental). Both are dated 11/10/2011 and were filed by electronic records express on 11/17/2011.
For physical limitations, Dr. Rork assessed limitations of lifting and/or carrying up to 10 pounds occasionally, limits sitting to 2 hours a day and standing and walking to 1 hour each, for a total of 4 hours in an 8-hour work day. Dr. Rork made a handwritten note that “Pt needs to rest (recline).” Four hours of an 8-hour day is a less than sedentary physical RFC (see Social Security Ruling 96-8p).
For mental limitations, Dr. Rork assessed “marked” impairments in several areas, including a marked impairment in the ability to understand and remember simple instructions, and a marked impairment in the ability to make judgments on simple work-related decisions. (see page 1 of Medical Source Statement of Ability to do Work-Related Activities (Mental), dated 11/10/2011). Dr. Rork wrote extensive comments on his medical source statement, and page 3 just below his signature, he wrote: I am Jane Smith’s PCP. I know her well and see her frequently. I have cared for her for >5 years and observed her decline physically and mentally. She is totally disabled in my opinion. (MSS Mental dated 11/10/2011)
The record also contains a medical source statement from psychiatric nurse practitioner Mary Rose dated 10/29/11. The supporting records from the Center of Life Management have been submitted by electronic records express. Ms. Rose’s assessment also contains marked impairments in the ability to understand and remember simple instructions, and a marked impairment in the ability to make judgments on simple work-related decisions.
While a nurse practitioner is not an “acceptable medical source” under 20 CFR 404.1513, evidence from “other sources” must be considered. See 20 CFR 404.1513(d). While information from these other sources cannot establish the existence of a medically determinable impairment, in this case the MDI is established by several others, including Dr. Jacobs (15F), psychologist Stephanie Lynch (12F), and Dr. Rork (7F), who are acceptable medical sources. Social Security Ruling 06-03p states that information from “other sources” provides insight into the “severity of the claimant’s impairments and how they affect the claimant’s ability to function.” Ruling 06-03p states that these opinions should be evaluated using the “Factors for Weighing Opinion Evidence” set forth in 20 CFR 404.1527(d)(2).
In this case, the “Factors for Weighing Opinion Evidence” weigh in favor giving Ms. Rose’s opinion great weight. She has been prescribing Jane’s medications, and closely tracks her progress; her opinion is well supported by her comments on the medical source statement and also by her progress notes; the opinion is consistent with the record as a whole, including the opinions of Dr. Jacobs (15F) and Dr. Rork; and the opinion comes from a certified psychiatric specialist, albeit a nurse practitioner.
Exhibit 12F – The Consultative Exam Report from Stephanie Lynch concluded that Jane was “not able to maintain attendance and a schedule or to cope with work pressures” (exhibit 12F, page 6).
Exhibit 15F – The Mental Impairment Questionnaire completed by treating psychologist Edward Jacobs, Ph.D. at the behest of DDS provides the diagnostic expression of “Major Depressive Disorder, Severe, Recurrent (15F, page 2). He states that the claimant’s mood is “extremely depressed, tearful” (15F, page 1). For Daily Activities, Dr. Jacobs wrote “Poor ability to function independently because of impairments in attention + memory + motivation” (15F, page 2). For task performance, he stated “Poor initiative, poor follow through (15F, page 2). For Stress Reaction, he wrote “Extremely impaired due to depression, hopelessness + helplessness”
The DDS Review
This claim should have been granted at the initial level. As stated above, the CE arranged by Social Security states that Jane would not be able to maintain attendance or cope with work pressures. Dr. Jacobs assessed the claimant as “extremely impaired.” The DDS reviewing psychologist, for whatever reason, did not fully credit these assessments. The DDS mental RFC limits Jane to “short and simple instructions that do not require a high rate of pace” and states that Jane must have “an environment where supervisory criticism is not overly critical of her performance” (14F, page 3).
The DDS physical RFC sets forth an assessment consistent with light exertional work, with occasional postural limitations.
At step 1, there has been no work since the onset date of 4/02/2008.
At step 2, Jane has the severe physical impairments of Lyme disease, arthritis, sleep apnea, asthma and fatigue, degenerative joint disease with chronic knee pain (status post knee surgery, both knees). She has the severe mental impairments of depression, and anxiety. As a result of either neurological effects of Lyme disease or from her depression or anxiety, Jane has developed severe cognitive problems.
At step 3, listings 12.04 and 12.06 are met. The PRT Form at the DDS level assessed the “B” criteria as follows: a “moderate” restriction of activities of daily living, “moderate” difficulties in maintaining social functioning, and “moderate” difficulties in maintaining concentration, persistence, or pace. However, both Dr. Rork and Psychiatric Nurse Practitioner Mary Rose assessed “marked” limitations in these areas of functioning. These treating opinions support a finding of a “marked” restriction of activities of daily living, and “marked” difficulties in maintaining concentration, persistence, or pace. The “B” criteria are met, under these two treating source assessments.
Jane may also meet listing 14.09D due to her Lyme disease. She has frequent fatigue, and she certainly has a marked limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace (see 14.09D.3.), as discussed in the previous paragraph.
At step 4, Jane cannot return to her past relevant work. The medical source statement of the primary care doctor (Dr. Rork) and the psychiatric nurse practitioner (Mary Rose) would preclude Jane’s past work. Jane’s poor cognitive functioning alone would preclude her past work. The limitation in the DDS RFC to “short and simple instructions” rules out Jane’s past work, and DDS found that Jane could not return to her past work (see exhibit 5E).
At step 5, other work is also precluded by Jane’s cognitive impairments. She cannot even make simple decisions. For example, the inability to make the decision to throw away a piece of junk mail because it might be important (please see statement of spouse, John Smith, page 2) reflects an inability to make simple decisions. Social Security Ruling 96-9p states:
Mental limitations or restrictions: A substantial loss of ability to meet any one of several basic work-related activities on a sustained basis (i.e., 8 hours a day, 5 days a week, or an equivalent work schedule), will substantially erode the unskilled sedentary occupational base and would justify a finding of disability. These mental activities are generally required by competitive, remunerative, unskilled work:
- Understanding, remembering, and carrying out simple instructions.
- Making judgments that are commensurate with the functions of unskilled work–i.e., simple work- related decisions.
- Responding appropriately to supervision, co- workers and usual work situations.
- Dealing with changes in a routine work setting.
Jane has a substantial loss of ability in all four of these areas. The mental medical source statements from Dr. Rork and psychiatric nurse practitioner Mary Rose assessed marked limitations in three of the four above activities.
Furthermore, based upon the physical functional limitations assessed by Dr. Rork, Jane is at the sedentary or less than sedentary exertional level. She is 54 years old, with a date of birth of 10/6/1956. At sedentary, medical-vocational guideline 201.14 directs a finding of disabled.
Jane Smith has been unable to sustain employment due to her cognitive and other impairments since her alleged onset date. She also meets listings 12.04, 12.06 and perhaps 14.09. She cannot return to past work based on even the DDS RFC, and would grid favorably under Rule 201.14 at step 5. For all these reasons, fully favorable decision is appropriate.
As discussed in the opening paragraph of this letter, the claimant has significant anxiety about the December 2nd hearing. If appropriate, I ask you to grant this claim on the record.
Gordon P. Gates