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Rowland v. Astrue

November 23, 2009

STEPHEN ROWLAND, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

ORDER REVERSING AND REMANDING DECISION OF COMMISSIONER

Plaintiff, Stephen C. Rowland (Rowland), moves the court for reversal of the Commissioner of Social Security's (Commissioner) decision denying his application for disability insurance benefits for the period of April 29, 2002, through February 15, 2005. The Commissioner opposes the motion. The court reverses and remands.

PROCEDURAL BACKGROUND

On June 19, 2002, Rowland applied for disability insurance benefits, alleging disability since March 14, 2002. AR 65-67. Rowland later amended his alleged disability onset date to April 29, 2002. AR 456. Rowland's application was denied initially and on reconsideration. AR 51-54, 57-59. Upon Rowland's request, Administrative Law Judge James W. Olson (ALJ Olson) held a hearing on May 15, 2003. AR 230. After the hearing, ALJ Olson requested Disability Determination Services (DDS) to schedule a consultative examination for Rowland. AR 63. Dr. Richard L. Beasley conducted the examination on August 27, 2003. AR 221-22. Rowland sent a letter to ALJ Olson on November 4, 2003, requesting a supplemental hearing and stating that Dr. Beasley did not do a physical examination of Rowland but rather merely asked him questions. AR 132-33. On December 22, 2003, ALJ Olson issued a decision finding that Rowland was not disabled within the meaning of the Social Security Act. AR 227-236. On March 18, 2005, the Appeals Council granted Rowland's request for review, vacated the hearing decision, and remanded the case for further proceedings. AR 237-40. The Appeals Council found that Rowland was not properly afforded his right to due process with respect to the evidence relating to Dr. Beasley's consultative examination and noted that Dr. Beasley apparently did not perform any physical testing. AR 238-39. The Appeals Council also noted that testimony by Rowland's daughter raised a question of whether Rowland may have developed a mental impairment not documented in the record and that further development of Rowland's mental status was warranted.

On remand, Administrative Law Judge Larry M. Donovan (the ALJ) requested DDS to schedule psychological, audiological, and orthopedic and/or neurological consultative examinations for Rowland. AR 251. These examinations were conducted by Greg Swenson, Ph.D., audiologist Norman N. Sorensen, and neurologist Dr. Stephen Hata, respectively. AR 380-89, AR 392-93, AR 396-98. On January 18, 2006, the ALJ informed Rowland of his right to submit written questions to Dr. Swenson, Mr. Sorensen, and Dr. Hata. AR 252. Counsel for Rowland proposed interrogatories on January 27, 2006. AR 316-17. These interrogatories were not presented to the consulting specialists. The ALJ held a remand hearing on April 26, 2006. AR 254. After the hearing, the ALJ requested DDS to schedule a psychological consultative examination with Wechsler Adult Intelligence Scale, 3rd Edition (WAIS-III) testing for Rowland. AR 276. Dr. Leslie A. Fiferman performed the psychological evaluation on July 12, 2006. AR 440-44. On August 3, 2006, the ALJ provided Dr. Fiferman's report to Rowland and advised him of his right to make written comments and submit written questions for Dr. Fiferman. AR 277-78. Counsel for Rowland submitted written comments on August 8, 2006. AR 333-34. On August 21, 2006, the ALJ informed Rowland of his intention to submit written interrogatories, along with Dr. Fiferman's evaluation, to a medical expert. AR 279. Rowland requested that the ALJ send the interrogatories to Dr. Fiferman instead, AR 335, and the ALJ denied Rowland's request. AR 290. The medical expert opined that Rowland's mental impairments met or equaled a listed impairment beginning on February 15, 2005. AR 447. Counsel for Rowland submitted objections to the medical expert's opinions on September 24, 2006. AR 336-37.

The ALJ apparently offered to issue a decision finding onset of disability on February 15, 2005, in exchange for Rowland's amendment of his alleged date of onset to that date. See AR 338-39. Rowland declined this offer. AR 338-39. On November 21, 2006, the ALJ issued a decision finding that Rowland had not been disabled within the meaning of the Social Security Act from the alleged onset date through the date of the decision. AR 23-36.

On June 18, 2008, the Appeals Council informed Rowland of its intention to issue a decision finding that Rowland was not disabled from the alleged onset date through February 14, 2005, and that Rowland became disabled on February 15, 2005. AR 453. Rowland submitted to the Appeals Council an alternative sequential evaluation under which his disability began on October 8, 2003. AR 456-57. On August 7, 2008, the Appeals Council issued a partially favorable decision, finding that Rowland was disabled beginning February 15, 2005, but not before that date. AR 13-16. This appeal followed.

FACTUAL BACKGROUND

Rowland was born October 8, 1948, making him 53 years old at the amended alleged onset date and 59 years old at the time of the Appeals Council's decision. AR 491. He lives near Pine Ridge, South Dakota, with his daughter, Sharon Rowland (Sharon), Sharon's three children, and the three children of another daughter who was killed in a car accident by a drunk driver.*fn1 AR 491-92. Rowland's partner, Patricia Standing Soldier (Patricia), was previously married to Rowland for seventeen years and has lived with him for a total of thirty-four years. AR 516. Patricia maintains her own trailer home but has lived with Rowland for the last twelve years. AR 516. Rowland left school in seventh grade and obtained a GED in 1985. AR 469, 493. He worked as a patrol officer for the Bureau of Indian Affairs from October 1, 1986, until May 15, 1988, and as a police officer for the Oglala Sioux Tribe from May 15, 1988, until April 29, 2002. AR 129, 304.

I. Medical Records

Rowland's medical records indicate a history of diabetes mellitus, hearing loss, vision problems, and mental impairments. Rowland was diagnosed with type two diabetes mellitus on August 17, 1989. AR 433. He began receiving diabetic preventive foot care on December 21, 1995, and was diagnosed with diabetic retinopathy on November 21, 2000. AR 181, 434.

On September 25, 2001, Rowland presented at the VA Black Hills Health Care System (Black Hills HCS) complaining of hearing loss in both ears. AR 171. Dr. Raymond Pierce referred Rowland to audiology for evaluation. AR 172. Dr. Pierce also noted that Rowland's diabetes mellitus was poorly controlled due to difficult life style and counseled Rowland about controlling his blood sugars. AR 172. Rowland saw Dr. Pierce on January 10, 2002, for a follow-up appointment. AR 174. Dr. Pierce did not perform an examination but ordered tests and adjusted Rowland's insulin dosage. AR 175.

On March 13, 2002, an Indian Health Services (IHS) audiologist found that Rowland had moderate to severe mixed hearing loss bilaterally and should wear hearing aids in both ears. AR 136, 145. Rowland had hearing aid follow-up appointments on April 15, 2002, and June 20, 2002. AR 143, 138.

On May 1, 2002, Rowland's family practice physician*fn2 assessed Rowland's ability to do work-related activities. AR 204-07. The physician opined that Rowland's ability to lift, carry, stand, walk, sit, push, and pull were not affected by his impairments. AR 204. Further, Rowland could frequently climb, kneel, crouch, crawl, and stoop, but could never balance because of his hearing impairment. AR 205. The physician also opined that Rowland's manipulative functions, including reaching all directions, handling, fingering, and feeling, were unlimited. AR 206. Further, the physician opined that Rowland's abilities to see and hear were limited because he had bilateral cataracts, diabetic retinopathy, and a hearing impairment that was only partially corrected by hearing aids. AR 206. Finally, Rowland's physician opined that Rowland's ability to handle exposure to humidity/wetness was unlimited, but that his diabetes mellitus and hearing impairment limited his ability to tolerate exposure to temperature extremes, noise, dust, vibration, hazards, fumes, odors, chemicals, and gases. AR 207.

Meanwhile, Rowland saw Dr. Pierce at Black Hills HCS again on March 15, 2002, to address his diabetes treatment. AR 178. Dr. Pierce noted that Rowland's meals were inconsistent because Rowland worked as a police officer and that Rowland was being weaned off insulin in an attempt to control his diabetes with only oral medications. AR 178. Dr. Pierce counseled Rowland on the importance of consistency in carbohydrate and meal intake. AR 178. Rowland returned to Black Hills HCS for a follow-up appointment for diabetes management on June 19, 2002. AR 180. Dr. Rodney D. Larson noted that Rowland was taking diabetes pills, was no longer taking insulin, and was slowly losing weight. AR 180. Rowland reported that his diabetes was getting better slowly. AR 180. Dr. Larson increased Rowland's dosage of diabetes medication and recommended that he continue to lose weight. AR 180.

Also on July 19, 2002, Rowland presented at the podiatry clinic at Black Hills HCS for an annual podiatric update. AR 181. Rowland's chief complaint at this visit was long toenails on both feet. AR 181. Examination of both feet found elongated toenails, no calluses in need of reduction, no erythema or cellulitis, no maceration, fissuring, or ulcerations, no masses, nodules, or areas of tenderness, and no edema. AR 181. Rowland reported no burning, tingling, or numbness in his feet. AR 181.

Rowland also underwent a complete audiometric evaluation on July 19, 2002. AR 184. Audiologist Paula J. Kennison found that Rowland had moderate to moderately-severe sensori-neural hearing loss with a mixed component in the right ear and moderate to moderately-severe mixed hearing loss in the left ear. AR 185. Further, speech audiometry results suggested that Rowland may have difficulty understanding normal conversational speech, even in ideal listening situations. AR 185. Tympanogram results suggested essentially normal middle ear function for both ears. AR 185.

Dr. Kevin Whittle, a nonexamining DDS physician, reviewed Rowland's medical records on October 7, 2002, and found that Rowland had no exertional limitations, no postural limitations, no manipulative limitations, no visual limitations, and no environmental limitations. AR 189-92. With respect to communicative limitations, Dr. Whittle found that Rowland had limited hearing and unlimited speaking. AR 192. On December 4, 2002, Dr. Kristin A. Jensen, another nonexamining DDS physician, reviewed Rowland's medical records and noted that he had hearing loss, had scarred tympanic membranes, and used hearing aids. AR 197. Dr. Whittle also noted that Rowland had diabetes that was controlled by medication. AR 197. Dr. Whittle found that Rowland had no exertional limitations, no postural limitations, no manipulative limitations, and no visual limitations. AR 197-200. With respect to communicative limitations, Dr. Whittle found that Rowland had limited hearing but unlimited speaking. AR 200.

Rowland saw Dr. Larson at Black Hills HCS on December 17, 2002, for diabetes management. AR 212. Rowland reported a number of problems, including blurry vision for several months, a cold, a burning sensation in his toes with numbness, and dermatitis of his scalp. AR 212. Dr. Larson referred Rowland to an optometrist, prescribed Guaifenesin for a viral upper respiratory infection, and instructed Rowland to continue using Capzasin cream on his foot and to continue his current diabetes treatment plan. AR 213.

Rowland had an eye exam at Black Hills HCS on February 12, 2003. AR 210. Optometrist Thomas A. Golis found that Rowland had type two diabetes mellitus with moderate to severe non-proliferative diabetic retinopathy that was more severe in his left eye than in his right eye. AR 211. Dr. Golis also found that Rowland was a glaucoma suspect due to a suspicious looking nerve in his left eye and prescribed corrective lenses. AR 211. Rowland returned to the Black Hills HCS eye clinic on June 18, 2003. AR 214. He reported that he had been having double vision since May 20, 2003, and that a CT scan at IHS on June 6, 2003, found no problems. AR 214. After examining Rowland's eyes, Dr. Golis again found that Rowland had moderate to severe non-proliferative diabetic retinopathy as well as clinically significant macular edema in his left eye. AR 215. Dr. Golis indicated that Rowland appeared to have a left sixth cranial nerve palsy caused by small blood vessel disease, which would improve in a few months. AR 215. Dr. Golis instructed Rowland to return to the clinic for evaluation of laser treatment on his left eye and to follow-up on his double vision. AR 215.

Rowland saw Dr. Larson for a routine diabetes management appointment on June 18, 2003. AR 216. Rowland reported that he went to the IHS hospital for diabetes care and assessment of double vision. AR 216. Rowland reported that a CT scan was negative for any tumors or other causes of double vision. AR 216. Rowland also reported that he began taking a different diabetes medication than the one prescribed by Black Hills HCS physicians. AR 216. Dr. Larson found that Rowland's type two diabetes mellitus was in fair control but needed improvement. AR 216. He advised Rowland to walk two miles a day, reduce his intake of carbohydrates, and increase his consumption of fruits, vegetables, lean meats, and poultry. AR 216. Dr. Larson also found that Rowland's diabetic peripheral neuropathy was in good control with Capzasin cream. AR 216. Dr. Larson opined that Rowland's double vision was probably benign. AR 217.

Rowland underwent focal laser treatment on his left eye on July 10, 2003, at Black Hills HCS. AR 345. He was instructed to return in two weeks to have the same procedure performed on his right eye, but he did not have his right eye treated until October 21, 2004. AR 343, 345.

DDS physician Dr. Beasley saw Rowland on August 27, 2003. AR 221. Dr. Beasley noted that Rowland was referred to him for evaluation of diabetes and bilateral hearing loss. AR 221. Rowland denied fatigue or chills, any change in vision or hearing, any cartoid bruits or thyroid nodules, any significant shortness of breath or cough, any chest pains or palpitations, any change in bowel habits, any urinary incontinence or frequency, any skin rashes, any bleeding abnormalities, and depression. AR 222. Rowland indicated that he had diabetes and a little bit of tingling in his feet and hands. AR 222. Dr. Beasley's record indicates that he took Rowland's vital signs and examined Rowland's head, ears, nose, throat, neck, lungs, abdomen, and extremities. AR 222. Dr. Beasley observed that Rowland had slight loss of proprioception in the lower feet area. AR 222. Overall, Dr. Beasley found that Rowland's diabetic care was well-controlled. AR 222. He explained, "[h]e does not seem to have significant secondary causes. Patient does have some retinopathy although well controlled with Laser therapy and not affecting his visual acuity. Patient also has a little bit of peripheral neuropathy although mild and again I do not feel that it should interfere with his ability to be employed." AR 222. With respect to Rowland's hearing loss, Dr. Beasley found that Rowland was able to participate in conversations and understood what Dr. Beasley was saying at a distance over ten feet. AR 222. Therefore, Dr. Beasley concluded that Rowland's hearing loss should not be very limiting for his ability to be employed in a traditional setting. AR 222. Dr. Beasley also assessed Rowland's ability to do work-related activities and found that Rowland had no exertional limitations, no postural limitations, no manipulative limitations, no visual/communicative limitations, and no environmental limitations. AR 223-26.

Rowland returned to the podiatry clinic at Black Hills HCS on December 15, 2003. AR 359. Rowland reported that he had no specific foot problems. AR 359. Dr. Barry L. Jacobs found that Rowland had early signs of peripheral neuropathy, discussed this condition with Rowland, and renewed Rowland's Capzasin cream prescription. AR 361.

Rowland presented to the ophthalmology clinic at Black Hills HCS on July 10, 2004. AR 344. An appointment for laser treatment on his right eye was scheduled. AR 344.

Rowland had a diabetes follow-up appointment at Black Hills HCS on July 12, 2004. AR 361. Rowland complained of left ear pain and difficulty getting his hearing aid in that ear. AR 362. Dr. Carl W. Graves found that Rowland had bilateral serous otitis media with some external otitis on the left ear. AR 362. Rowland also complained of some numbness and pain in his lower extremities. AR 362. Dr. Graves found that Rowland had good sensation in his feet. AR 362. Dr. Graves prescribed gabapentin to relieve the numbness and pain. AR 362.

Rowland saw Dr. Golis at the Black Hills HCS eye clinic on August 19, 2004. AR 362. He reported that his double vision went away as long as he controlled his blood sugar. AR 363. Upon examination, Dr. Golis confirmed his earlier diagnoses of moderate to severe non-proliferative diabetic retinopathy that was more severe in his left eye and clinically significant macular edema in his left eye. AR 364. Dr. Golis noted that the left sixth cranial nerve palsy had resolved and that Rowland was a glaucoma suspect. AR 364. Dr. Golis instructed Rowland to return to the clinic for evaluation for laser treatment. AR 364. Rowland underwent focal laser treatment on his right eye on October 21, 2004. AR 343. There were no complications from the procedure. AR 343.

On November 4, 2004, Rowland had a diabetes evaluation at the Fort Meade VA clinic. Daniel Kenney, PA-C, found that Rowland had early diabetic neuropathy of both distal lower extremities, moderate bilateral diabetic retinopathy, and impotency and erectile dysfunction secondary to diabetes. AR 436.

On December 2, 2004, Rowland returned to Dr. Graves for a diabetes follow-up appointment. AR 366. Rowland reported that the numbness and pain in his lower extremities felt better after he began taking gabapentin. AR 366. Dr. Graves noted that Rowland had applied for Agent Orange Compensation because he handled a lot of Agent Orange while in the Army.

AR 367. Dr. Graves also noted that the nurse's triage note indicated that Rowland was positive for post-traumatic stress disorder (PTSD) screening, but that Dr. Graves did not find Rowland to demonstrate classic PTSD symptoms based on his military experiences. AR 367. Dr. Graves referred Rowland for a mental health screening. AR 367.

Also on December 2, 2004, Rowland had a follow-up appointment at the Black Hills HCS laser clinic. AR 342. The record indicates that his left eye looked good and his right eye looked better but may need more laser treatment in the future. AR 342.

On December 13, 2004, Rowland had his annual podiatry appointment with Dr. Jacobs at Black Hills HCS. Rowland reported that he had some burning and numbness in his feet and numbness in both big toes. AR 369. Dr. Jacobs reviewed diabetic education and peripheral neuropathy with Rowland and maintained Rowland's current treatment plan. AR 371.

Rowland presented for an ophthalmology follow-up at Black Hills HCS on January 20, 2005. He complained that both eyes seemed more blurry and watered a lot when he was reading. AR 371. Ophthalmologist Gail A. Bernard found that Rowland had clinically significant macular edema due to nonproliferative diabetic retinopathy that continued to improve slowly. AR 372. Dr. Bernard also found that Rowland had cortical cataracts progressing in both eyes. AR 372.

Rowland saw nurse practitioner Kathleen E. Baumiller for a psychiatric consultation at the Black Hills HCS on February 15, 2005. AR 373. Rowland stated, "I think I had depression and anxiety a long time ago, I figured that was just a part of me." AR 373. Rowland indicated that he saw a mental health provider once when he was in Vietnam and underwent alcohol treatment in 1985. AR 373. Rowland also stated that he had two or three attacks of nerves per year and sometimes had to breathe into a paper bag. AR 373. Rowland also indicated that he sometimes woke himself up feeling afraid and helpless but did not remember the content of his dreams. AR 373. Rowland stated that he did not have flashbacks, but indicated that he isolated himself, he found it hard to get dressed some days, and his concentration and energy were poor. AR 373. Baumiller found that while Rowland described some PTSD symptoms, namely anxiety, nightmares, and irritability, he did not fully meet the criteria for this disorder. AR 375. Baumiller further found that Rowland did meet the criteria for dysthymia based on his description of depressed mood, poor concentration, lack of energy, lack of pleasure in doing usual hobbies, ...


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