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Robertson v. Astrue

September 2, 2010


The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge


(Social Security Case)

This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the Administrative Record ("AR") before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified AR.

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge ("ALJ") properly considered the medical evidence as contained in the treating opinion from Dabney Blankenship, Ph.D. (JS at 4);

2. Whether the ALJ properly considered the testimony of Plaintiff (JS at 17).

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that for the reasons set forth, the decision of the Commissioner must be reversed.


In Plaintiff's first issue, she questions whether the ALJ properly considered the medical evidence contained in the treating opinion from Dabney Blankenship, Ph.D. ("Dr. Blankenship"). Prior to addressing this question, the Court will briefly review Plaintiff's treatment record.

Plaintiff was first seen by Dr. Blankenship on December 19, 2005, following her filing of a workers' compensation claim related to work place harassment. (AR 191-210.) Dr. Blankenship performed a comprehensive examination, including a Mental Status Evaluation, along with eight other components which Dr. Blankenship described, generally, as objective tests. For example, Dr. Blankenship administered the Revised Hamilton Rating Scale for Depression ("RHRSD"), which he described as "one of the best known, most reliable, and most widely used tools for evaluating depressive symptoms. The scale has been used in the medical and psychiatric communities and is appropriate for any medical or mental health setting where depressive symptoms must be assessed." (AR 200.) Dr. Blankenship diagnosed Plaintiff as suffering from major depression, severe, with psychotic features and post-traumatic stress disorder. (AR 207.) There are monthly treatment notes which post-date the initial treatment date in December 2005, and go through October 17, 2006. (AR 211-223.)

Following Dr. Blankenship's last treatment visit with Plaintiff in October 2006, he completed a 19-page Permanent and Stationary Report on the 31st of that month in connection with Plaintiff's workers' compensation case. (AR 248-267.) In that report, Dr. Blankenship diagnosed major depression, single episode, moderate. He indicated that psychotic features initially present appeared to be in remission, and also diagnosed post-traumatic stress disorder, residual and slowly resolving. (AR 260.) He assessed a current General Assessment of Functioning ("GAF") score of 58, reflecting a moderate level of difficulty with social, occupational, and school functioning. (AR 261.) Significantly, Dr. Blankenship completed a "Work Function Impairment Rating" (AR 263), prefacing this with definitions. (AR 262.) In these definitions, the term "slight" indicates a noticeable impairment, while "moderate" indicates a marked impairment. "Severe" is defined by Dr. Blankenship as inability to perform a work function. These definitions were provided within the context of Workers' Compensation terminology. Dr. Blankenship found slight impairment in Plaintiff's ability to maintain a work pace appropriate to a given workload; slight to moderate impairment in her ability to perform complex or varied tasks, and her ability to accept and carry out responsibility for directions; moderate limitations in her ability to influence people and her ability to make generalizations, evaluations or decisions without immediate supervisors; and moderate to severe limitations in her ability to relate to others beyond giving and receiving instructions.

Following Dr. Blankenship's last treatment visit with Plaintiff in October 2006, he referred her to Dr. Musher, a psychiatrist, who performed an evaluation and wrote a report. (AR 269-278.) Dr. Musher assessed Plaintiff with an anxiety disorder, NOS, and major depressive disorder, recurrent. (AR 276.) Dr. Musher agreed with Dr. Blankenship's work function disability rating. (AR 276.)

There is an apparent gap in Plaintiff's treatment (which, unfortunately, was not resolved during the hearing before the ALJ on March 12, 2008 (AR 31-61), although Plaintiff testified), until February 19, 2008, when Plaintiff again visited Dr. Blankenship, who examined her, performed essentially the same psychological tests as were administered during her initial visit, and provided a current diagnosis of post-traumatic stress disorder and major depressive disorder, severe, with a history of psychotic symptoms. (AR 279.) Dr. Blankenship indicated that Plaintiff was having a marginal response to treatment (AR 270-81) and noted resurfacing symptoms. (Id.) He completed a Mental Residual Functional Capacity Questionnaire which contained "marked" and "extreme" limitations in areas of social interaction and adaptation. (AR 283.)*fn1 In the same report, he indicated that Plaintiff would require 20- to 30-minute breaks every two hours if she attempted an eight-hour workday, and further indicated that, at present, she would never have any "good" days. (Id.) On the same date, Dr. Blankenship conducted the aforementioned Psychological Reevaluation and Testing. (AR 295-309.) He essentially reaffirmed the same limitations he had found in December of 2006. (AR 308.)

It is noted that there are supplemental treatment notes from March 2008 through January 2009. (AR 311-324.) Dr. Blankenship completed a third questionnaire, entitled "Mental Work Restriction Questionnaire," which provided for mostly marked limitations in mental work activities, as of January 22, 2009. (AR 318-319.) He defined "marked" as a seriously limited ability to function in the work environment. (AR 320.) This information post-dated the ALJ's decision, but was submitted to the Appeals Council (AR 4-8), which gave it "little weight" because it was unsupported by Dr. Blankenship's treatment records, which the Appeals Council interpreted as documenting steady improvement in Plaintiff's mental condition. By September 23, 2008, the Appeals Council noted, Plaintiff "was doing well adjusting to her independent living status, was isolating less... was calm and pleasant and her appearance was good;... (AR 5-6.) The Court's review of these treatment ...

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