Thursday, December 02, 2010

disability - opinion of "not acceptable medical source"

Douglass v. Astrue - ED Pa. - November 30, 2010

This case was remanded because the ALJ did not properly consider the opinion of the claimant's long-time therapist.

SSR 06-03p clarifies "how [the SSA] consider[s] opinions from sources who are not ‘acceptable medical sources.’” SSR 06-03p, 71 Fed. Reg. 45,593 (Aug. 9, 2006). Acceptable medical sources include, inter alia, licensed physicians and licensed or certified psychologists. Id. (citing 20 C.F.R. §§ 404.1513(a), 416.913(a)). “Other sources” include medical sources who are not “acceptable medical sources” and non-medical sources. Id. (citing 20 C.F.R. §§ 404.1513(d), 416.913(d)). Other medical sources include, inter alia, licensed clinical social workers and therapists. Id. (citing 20 C.F.R. §§ 404.1513(d), 416.913(d)).

In this context, this case raises an issue that apparently has not been the subject of a Third Circuit opinion – and no other Circuit opinion with similar facts has been located – to what extent must an ALJ discuss a claimant’s reliance on a medical source who is not an “acceptable medical source” and when can such evidence be deemed sufficient and persuasive enough to warrant the ALJ finding limitations severe enough to justify a finding of “disabled.”

It is clear that “[i]nformation from [not acceptable medical sources] cannot establish the existence of a medically determinable impairment[, but] may provide insight into the severity of the impairment(s) and how it affects the individual’s ability to function.” Id. at 45,595. The regulations do not specify when such evidence is sufficient for finding functional limitations that would justify a finding of “disabled.”

Because “medical sources who are not ‘acceptable medical sources[]’ . . . have increasingly assumed a greater percentage of the treatment and evaluation functions previously handled primarily by physicians and psychologists[, o]pinions from these medical sources . . . are important and should be evaluated on key issues such as impairment severity and functional effects.” Id. The opinions of these sources should be considered along with the other relevant evidence in the file. Id. Further, the factors applied to evaluate the medical opinions from “acceptable medical sources” represent basic principles that apply to the opinions from medical sources who are not “acceptable medical sources.” Id. These factors include:

• How long the source has known and how frequently the source has seen the individual;

• How consistent the opinion is with other evidence;

• The degree to which the source presents relevant evidence to support an opinion;

• How well the source explains the opinion;

• Whether the source has a specialty or area of expertise related to the individual’s impairment(s); and

• Any other factors that tend to support or refute the opinion. Id.

Although each factor for weighing the opinion evidence will not apply in every case, the evaluation of the opinion depends on the particular facts in each case. Id. at 45,595-96. Finally, the ALJ “generally should explain the weight given to opinions from these ‘other sources,’ or otherwise ensure that the discussion of the evidence in the determination or decision allows a . . .subsequent reviewer to follow the [ALJ’s] reasoning, when such opinions have an effect on the outcome of the case.” Id. at 45,596.

In this case, the ALJ analysis of the therapist's assessment of claimant's condition was inadequate. Nowhere in this discussion does the ALJ cite to SSR 06-03p, let alone identify the factors cited above for evaluating an opinion of a medical source who is not an “acceptable medical source.” The ALJ has offered no record citations to permit this Court to review her decision for substantial evidence, in contravention of the mandate in SSR 06-03p to “ensure that the discussion of the evidence in the determination or decision allows a . . . subsequent reviewer to follow the [ALJ’s] reasoning.” SSR 06-03p, 71 Fed. Reg. at 45,596.

The Court found that that the ALJ’s conclusion regarding the therapist's opinion is not supported by substantial evidence. The ALJ rejected the opinion for two reasons: (1) the therapist is not an acceptable medical source, and (2) the opinion lacks support from the mental health evidence in the record, including the therapist's own notes. First, the ALJ is not permitted to outright reject the therapist’s opinion solely because she is not an acceptable medical source. Rather, the ALJ is required to perform the analysis mandated by SSR 06-03p. See Sykes v. Apfel, 228 F.3d 259, 271 (3d Cir. 2000) (asserting that social security rulings are binding on all components of the SSA) (citing Heckler v. Edwards, 465 U.S. 870, 873 n.3 (1984)).

Second, the ALJ’s conclusion that the therapist’s opinion lacks support is not supported by substantial evidence. . . .After reviewing the therapist’s notes, this Court finds that without detailed discussion of the entire record, the ALJ’s cursory rejection of her assessment was improper.

In addition, SSA's post hoc rationale for the ALJ decision -- not contained in the decision itself -- was held to be improper. "Although the Commissioner’s brief offers other evidence from the record in support of the ALJ’s rejection, the “grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.” Fargnoli v. Massanari, 247 F.3d 34, 44 n.7 (3d Cir. 2001) (quoting SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)); Keiderling v. Astrue, No. 07-2237, 2008 WL 2120154, at *3 (E.D. Pa. May 20, 2008) (Buckwalter, S.J.) (“[I]t is well-established that the ALJ’s decision must stand or fall with the reasons set forth in the ALJ’s decision; the Commissioner may not offer a post-hoc rationalization.”) (quotation marks and alteration omitted). The ALJ’s decision did not cite the examples that the Commissioner’s brief cites to this Court, but instead referred only to the “mental health evidence, including the counseling notes made by [Douglass’s] therapist,” which is insufficient to affirm the rejection. Accord, Keiderling v. Astrue, 2008 WL 2120154, at *4. (ED Pa.)