The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge
ORDER REVERSING DECISION OF THE COMMISSIONER AND REMANDING FOR CALCULATION AND AWARD OF BENEFITS
On October 18, 1995, plaintiff filed for disability insurance benefits under sections 216 and 223 of Title II of the Social Security Act (the "Act"), 42 U.S.C. §§ 416(I) and 423. (AR 54-57).*fn1 After her application was denied at the initial and reconsideration levels, a hearing was held on May 7, 1997. The Administrative Law Judge (ALJ)*fn2 issued his decision on July 23, 1997, which was adverse to plaintiff. (AR 16-20). The Appeals Council denied plaintiff's request for review. Plaintiff filed a civil action in United States District Court, CIV. 00-5003, and on July 11, 2000, District Judge Karen E. Schreier issued a memorandum opinion and order for remand. (AR 267-276).
A hearing on remand was held on June 7, 2001, with a supplemental hearing being held on November 28, 2001. On that record, ALJ #2 issued a decision adverse to plaintiff on April 16, 2002. (AR 316-322). The Appeals Council vacated that decision and remanded for further proceedings, including a new decision. (AR 352-356). Plaintiff waived her right to appear at the remand hearing and on August 1, 2005, ALJ #2 issued a second decision based upon the record. (AR 406-414).
On July 18, 2006, the Appeals Council again vacated the decision of the ALJ, and ordered a new hearing before a different ALJ. (AR 424-427). A supplemental hearing was held on December 17, 2006. ALJ #3 issued his decision adverse to plaintiff on February 7, 2007. (AR 245-265). After an approved extension to file objections to that decision, on May 20, 2008, plaintiff filed her exceptions. (AR 235-236). On November 7, 2008, the Appeals Council declined jurisdiction over the case and the decision of the ALJ became the final decision of the Commissioner. (AR 231). Plaintiff timely filed her complaint in district court. (Docket 1).
FACTUAL AND PROCEDURAL HISTORY
Plaintiff Holly A. Platt was born in 1961. (AR 37). She obtained a high school GED and was in the U.S. Air Force from February of 1980 to February of 1984. (AR 37). She and her husband, Jim Platt, were married in January of 1984 and they divorced in January of 1996. (AR 184).
Ms. Platt became aware of her "problems" (Post-Traumatic Stress Disorder (PTSD) and depression) shortly after their marriage. (AR 37, 39). She described her first symptoms of these problems as "weight gain and isolation." (AR 37-38). The isolation was evidenced by her decreased social life, her desire to stay at home and not wanting to visit friends. (AR 38). Before her marriage she felt the "isolation" but hid her feelings through the use of alcohol. (AR 44).
Ms. Platt testified that she got through the military "drinking alcohol." (AR 41). She would drink fifteen beers or mixed drinks a night and considered herself to be a heavy drinker. (AR 47). This occurred every night while she was on active duty. (AR 48). Depression caused Ms. Platt to stay away from people and sleep too much. (AR 42). After leaving the military she experienced a "quick . . . sudden and maintained" weight gain. (AR 43).
While in the Air Force, Ms. Platt was in flight supplies, ordering parts or equipment, handing out individual equipment, i.e., parkas, boots, gloves. (AR 45). She completed her Air Force duty as an E-4 (sergeant). (AR 46). Her performance reviews were in the eight to nine range, with nine being the best. (AR 46).
During one weekend job in 1984 after leaving the military, she just started crying and nothing in particular set it off. (AR 40). She then began to experience nightmares and a fear of being outside or in crowds. (AR 38). Ms. Platt began to experience panic attacks in public places, which caused her to cry and feel a sudden need to leave wherever she was. (AR 38). Beginning in 1986, Ms. Platt recalls she started having a recurring dream - a nightmare of being murdered, stabbed to death. (AR 38). Ms. Platt also identified 1986 as the year in which she experienced an increase in her sense of isolation and fear of being outside her home. (AR 39). She could not even go to the grocery store. (AR 39). She became hypervigilant, could not sit still and was very nervous. (AR 39).
Her first suicidal thoughts began at ten years of age. (AR 43). After her military service ended, Ms. Platt had frequent problems with concentration and it was difficult for her to remember simple things. (AR 43). During an agitated "major depressive episode," Ms. Platt would not eat, could not sleep, and vomited from being hypervigilant because "everything [made her] sick." (AR 43). Her husband did not want her to drink, so she then used food to cover up the symptoms of depression. (AR 44). Once she became pregnant Ms. Platt quit drinking altogether. (AR 48).
Her daughter was born in September of 1989.*fn3 (AR 44). Within a week of her daughter's birth, Ms. Platt started to have memories of being molested. (AR 45). She initially saw the base psychiatrist at the Homestead Air Force Base*fn4 in Florida after the birth of her child and he gave her ten days of antidepressants to help her sleep. (AR 51).
Ms. Platt counseled with Eugene Muldavin, a licensed clinical therapist, in 1990, shortly after her daughter's birth. (AR 45, 49). She saw Mr. Muldavin because she was depressed, could not stop crying, and was having flashbacks of her own abuse. (AR 49-50). She saw Mr. Muldavin from 1990 until mid-August 1992 when a hurricane*fn5 struck Florida. (AR 50). All of her clinical records, including Mr. Muldavin's therapy notes, were destroyed in the hurricane. (AR 52, 174). After being evacuated from the area devastated by the hurricane, Ms. Platt eventually returned to Pierre, South Dakota, where her mother lived. (AR 50). She did not seek any mental health treatment while living in Pierre. (AR 50).
Ms. Platt's former husband, Jim, submitted an affidavit relating his observations. (AR 184-86). He testified that during their first year of marriage in 1984 "Holly was happy-go-lucky, joyous, out-going . . . ." Id. at 184. Together they went fishing, cooked, took long drives and Holly "would easily socialize at [military] parties." Id. Mr. Platt testified that Holly "had several friends she spent time with on a regular basis" and she was "born to shop." Id. Mr. Platt's affidavit reflects that this positive attitude continued when they moved to Florida in 1986. Id.
In July of 1987, Mr. Platt was stationed in Korea and Holly stayed with her mother in Pierre, South Dakota. Id. During this time, Holly would cry over the phone during visits with Jim. In 1987, he reported that things changed.
Holly started gaining a lot of weight and began to sleep a lot. She didn't want to be seen or be out in public. She stayed home and started isolating herself. Then she started crying over nothing . . . . she stopped going to my military function . . . [and] stopped going fishing with me.
When Jim returned to the United States in July of 1988 "Holly was really down in the dumps." Id. It was in July of that year that the Platt family moved back to Homestead, Florida. Id. at 185. This was when Mr. Platt noticed that:
Holly had wild mood changes. She had gained more weight and was isolating herself. She would have crying spells. Everything was worse than right before I left for Korea. She tried to keep the house neat, but it was a real effort for her to get it done. Plus, the housework she did do, took her a lot longer . . . . For a woman who loved to shop, it was weird that now I couldn't even get her to the commissary, or to any military functions. She never wanted to go out at all. If I had visitors to our house she would only tolerate them, and often would go to another [room] and isolate.
Mr. Platt observed that Holly's condition worsened with her pregnancy in January of 1989. Id. "From that point on, it went down hill really bad. All of her symptoms got even worse and she went into a major depression." Id. After the baby was born "everything got ten times worse." Id. Mr. Platt testified that "Holly isolated herself so much that she wouldn't even sleep in our bed with me. She would stay in the bedroom with . . . our daughter." Id.
After Holly started therapy she would not tell her husband what was taking place in those sessions. Id. They attempted marriage counseling, but after a couple of sessions, Holly "backed-off and isolated from that." Id. Holly never shared her diagnosis of PTSD with her husband until after they were divorced. Holly then told Jim "she wanted to take her childhood molestation to the grave with her." Id.
Ms. Platt's sister, Gloria Hadrick, executed an affidavit describing her sister's condition during the 1989 time period. (AR 182-183). Ms. Hadrick worked as a Patient Care Technician for sixteen years. (AR 182). She reported that before February of 1989:
Holly was always outgoing. She had a zest for life and could always see the funny side of things. She had a lot of friends, who she always spent time with. She loved to talk and visit with her friends. She was also very involved in physical fitness and did a lot of running to stay fit. All of this changed in the late 1980's.
Id. Ms. Hadrick visited her sister in Florida in February of 1989 while Ms. Platt was pregnant. Id. During that visit, Ms. Hadrick observed:
Holly had a flat affect. She couldn't follow a conversation. I would talk to her and she'd have to ask me what I had said or she thought I said something different than I had said . . . Holly was unwilling to go anywhere with us. She just wanted to sit in the house and smoke cigarettes. She did not want to do anything or go anywhere.
Id. During this visit, Ms. Hadrick discovered that Holly "had no personal friends. She was extremely isolated, and didn't seem to do much of anything." Id. Ms. Hadrick's affidavit confirms that Holly was "molested by our mother's boss" when Ms. Hadrick was age 15. Id.
After the birth of Holly's daughter, Ms. Hadrick spoke with her sister frequently by telephone. She reported that Holly would bring up her childhood memories of having been molested and would "continually repeat . . . her fears of her daughter being molested." Id. at 183. Ms. Hadrick also testified about her sister:
[T]here was a short time period when she was seeing her therapist in Florida, that she started to get a little grip on reality. She stopped repeating herself during our phone conversations, and could carry on more of a normal conversation. This only lasted until the Hurricane happened. Then everything was ripped away from her. She lost everything in the Hurricane. She cried alot. She started obsessing again about the Hurricane and everything she lost, especially the pictures of her daughter.
Id. Ms. Hadrick concluded by stating that "Holly is not the same person that she once was, and she has had these problems since the 1980's." Id.
On January 21, 1997, Eugene Muldavin completed a Psychiatric Review Technique at the request of Ms. Platt's former attorney. (AR 173). In his own handwriting under II. Reviewer's Notes, Mr. Muldavin stated:
Ms. Platt was referred to my office for psychotherapy with an initial presented problem of depression - lack of clear future goal in 1991. She was a cooperative client - invested in making positive changes for herself and family. Early on I had (was given) insight into marital problem, and frequent stressful doubts re: parenting issues.
When trust was established - Ms. Platt was able to get in touch with major dysfunctional family of origin issues and reviewed sexual abuse victimization issues. It became evident that much of her difficulty in relationships, work and academic performance had been severely adversely affected by traumatic events.
Developmental changes - marriage, childbearing served to raise her awareness of past emotional problems - current life stresses combined with increased historical awareness provide Ms. Platt with acute distress.
Nevertheless she put forth admirable effort to progress and managed to care for her daughter.
Therapy stopped abruptly due to the Hurricane Andrew. My office and records were essentially destroyed.
Recommendations include - continued therapy with a benign trusting therapist with extensive awareness on sensitivity to sexual abuse and trauma recovery. (AR 174).
With this summary, Mr. Muldavin's report concluded that Ms. Platt suffered from a paranoid schizophrenic disorder, an affective disorder, and an anxiety disorder. (AR 173). These conditions resulted in an organic mental disorder, including memory impairment and depression with "feeling[s] of hopelessness, helplessness, haplessness." (AR 175). He reported that Ms. Platt "has had 'flash backs' related to sexual abuse victimization." Id. These conditions made it difficult for Holly to maintain concentration and stay on task or move beyond the traumatic sexual abuse she had experienced. (AR 176-177).
Mr. Muldavin identified her degree of limitation as "marked" or "frequent" in her activities of daily living and social functioning. (AR 180). She experienced "frequent" or "continual" deficiencies in concentration*fn6 and deterioration or decompensation in work or work-like settings.*fn7 (AR 180).
Mr. Muldavin found that these conditions caused Ms. Platt "repeated episodes of deterioration or decompensation . . . [with a]. . . current history of two or more years of inability to function outside of a highly supportive living situation." (AR 181). His report concluded that her anxiety related disorder symptoms result in a "complete inability to function independently outside the area of one's home. Id. (emphasis in original).
On May 27, 1997, Mr. Muldavin wrote plaintiff's former attorney and clarified that his "commencement date of therapy with Ms. Platt was on or around the beginning of 1990." (AR 230). He again reaffirmed that his records had been destroyed after the hurricane. Id. His letter, now seven years after the fact, stated "[h]owever, my recollection of Ms. Platt's case and issues remain clear. I stand behind my clinical assessments . . . ." Id. In Mr. Muldavin's opinion, the diagnosis and resulting functional limitations which he identified were in existence prior to September 30, 1989. (AR 172).
Ms. Platt started counseling again in August 1994 because she was having "severe flashbacks and . . . wasn't functioning." (AR 50). Dr. T. H. Shannon with the Veterans Administration Medical Center at Ft. Meade, South Dakota, wrote on August 2, 1995:
[Ms. Platt] has suffered months of depressed mood with mid-morning awakening, labillity, crying spells, poor self esteem, shame and guilt about past sexual abuse and rape (x2), emotional detachement [sic], isolation, fear of crowds ad [sic] people and cycles of daily thoughts or/and nightmares related to sexual trauma . . . Chronic SI [suicide ideation] w/o intent, plan or attempt since age 10 yrs. Referred by Jack Sanders of the Vet Center who will start to follow her again . . . . (AR 112). Dr. Shannon noted that Holly suffered from depression and childhood PTSD, which were not combat related. (AR 113, 117).
On October 10, 1995, Dr. Shannon wrote to Social Security stating that Ms. Platt "suffers from Post Traumatize [sic] Stress Disorder and Depression . . . . She is not employable at this time in my clinical opinion." (AR 132). That same day, Eugene Summers, M.S.W., a Team Leader at the Vet Center, wrote:
Platt had been seen . . . since August 1994 for Post Traumatic Stress Disorder. One of the main issues she has been working on is her inability to work. Though she has tried to work several times in the past few months, every time she gains employment, she has been unable to handle job related stress. This experience has resulted in deep depression. It is the counselor's current opinion that Ms. Platt is unemployable. With the severity of her PTSD, it is highly doubtful that she will ever be employable. (AR 133).
On November 6, 1995, Jack Sanders, M.S., also with the Vet Center, wrote:
[I]t is my clinical impression that Holly suffers from delayed Post Traumatic Stress Disorder [PTSD] . . . . After doing extensive therapy with her, she is apparently too fragile to function effectively in a work situation. I have seen nothing in her behavior to suggest she could hold a job while her condition debilitates her. She has great difficulty maintaining a sense of self worth and adequate job performance for an employer. She becomes labile and disoriented when faced with any job stress. I think, Holly cannot function adequately in society to hold and perform in the world of work. Though she does well in therapy, she is unable to move beyond this and address the daily stress and pressure of the world. (AR 135). He reported in earlier clinical notes that "Holly . . . was remembering more & more incidences and having her head pushed under water and screaming when she was being molested." (AR 156).
In her Disability Report of October 12, 1995, Ms. Platt was asked, "When did your condition first bother you," to which she responded "Feb 7 84."*fn8 (AR 76). Acknowledging that she had worked since that date, Ms. Platt indicated that her "condition" caused her to change her "job or job duties, hours of work, attendance." Id. She then stated her "condition finally [made her] stop working" altogether in August of 1995. Id. She explained that the condition which kept her from working was "PTSD/Depression, fear of people . . . crowds, nightmares, panic attacks, crying, stay home, flash backs." Id.
In the Disability Report, Ms. Platt also provided the following information to compare her activities pre and post onset date:
"Used to cook daily and clean, now minimal" Recreational ...