UNITED STATES DISTRICT COURT

 NORTHERN DISTRICT OF TEXAS

 LUBBOCK DIVISION

LORI P. PEPPERS, §

§

 Plaintiff, §

§

v. § CIVIL ACTION NO.

§ 5:05-CV-0157-C

§

JO ANNE B. BARNHART, § 

Commissioner of Social Security, §

§

Defendant. §

 REPORT AND RECOMMENDATION

Plaintiff Lori P. Peppers seeks judicial review of a decision of the Commissioner of

Social Security denying her application for Supplemental Security Income (SSI).

The United States District Judge, pursuant to 28 U.S.C. § 636(b), referred this case to the

United States Magistrate Judge for report and recommendation, proposed findings of fact and

conclusions of law, and a proposed judgment. After reviewing the administrative record and

the arguments of both parties, this court recommends that the District Court reverse and

remand the Commissioner’s decision. 

I. Statement of the Case

Peppers suffers from Human Immunodeficiency Virus (HIV) and chronic depression.

(Tr. 43, 147, 306.) During the administrative proceedings Peppers attempted suicide and was

hospitalized at a psychiatric hospital for evaluation and stabilization for several days

following the suicide attempt. (Tr. 261, 283-85.) 

 

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In order to determine whether a claimant is disabled, the Commissioner considers the claimant’s claim under a five-step sequential

evaluation process. 20 C.F.R. § 404.1520 (2005); Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000). Under the sequential inquiry,

the hearing officer decides whether: (1) the claimant is not working in substantial gainful activity; (2) the claimant has a severe

impairment; (3) the claimant’s impairment meets or equals a listed impairment in Appendix I of the regulations; (4) the impairment

prevents the claimant from doing past relevant work; and (5) the impairment prevents the claimant from doing any other work. Id.

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 The Administrative Law Judge (ALJ) acknowledged Peppers’ suicide attempt and

diagnoses of adjustment disorder; major depressive disorder, recurrent; and a history of

cocaine dependence but determined that her mental impairments were not severe. (Tr. 12-13,

15.) He then determined at the fourth step of the sequential disability evaluation process1

 that

Peppers retained the residual functional capacity to perform sedentary work and that she

could perform her past work as a receptionist. (Tr. 16.) 

Peppers contends that the ALJ erred in evaluating her mental impairments and that he

should have obtained additional medical evidence regarding her mental impairments. 

II. Discussion

At the initial and reconsideration levels it was determined that neither Peppers’

primary diagnosis of HIV or her secondary diagnosis of major depressive disorder rendered

her disabled. (Tr. 43.) These determinations were based in part on a review completed by

Robert M. Gilliland, M.D., a physician designated by the Texas Rehabilitation Commission

Disability Determination Service (DDS) to review Peppers’ psychiatric condition, and a

report submitted by Addison E. Gradel, Ed.D., a psychologist designated by the DDS to

examine Peppers. (Tr. 302-05, 315-29.) 

Dr. Gradel examined Peppers on July 23, 2003, and determined that she suffered from

major depressive disorder, recurrent, in partial remission and a history of cocaine

 

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dependence; he assigned her a Global Assessment of Functioning (GAF) score of 45.

(Tr. 304.) 

On October 14, 2003, Dr Gilliland reviewed Peppers’ medical records and noted on

a Psychiatric Review Technique Form (PRTF) that Dr. Gradel’s report did not include

information regarding Peppers’ activities of daily living and that Peppers had not supplied

such information. (Tr. 327.) Dr. Gilliland left blank all portions of the PTRF except for the

first page on which he noted the types of medical disorders on which Peppers’ claim was

based and the last page on which he noted in part that there was insufficient evidence in the

record. (Tr. 315-329.) He did not complete sections related to the extent to which Peppers’

mental impairments might impact her mood and energy (Tr. 318, 320, 322) or the section

related to the functional limitations her impairments might impose (Tr. 325). 

The ALJ acknowledged that DDS physicians found “insufficient evidence to

determine [Peppers’] mental impairments” but stated that because the record contained “new

and material evidence such as [Peppers’] testimony,” he would not accord significant

probative weight to the opinions provided by DDS physicians. (Tr. 15.) Citing 20 C.F.R.

§ 416.920a, the ALJ determined that Peppers’ mental impairment resulted in slight restriction

of activities of daily living, slight difficulties in maintaining social functioning, and slight

limitations or deficiencies in concentration, persistence, or pace. (Tr. 15.)

The regulation the ALJ cited in his decision provides that the Commissioner must

determine the degree to which the claimant’s mental impairments impose functional

limitations. 20 C.F.R. § 416.920a(c)(2) (2005). Specifically, examiners for the Social

 

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Although the ALJ acknowledged Peppers’ suicide attempt, in regard to the functional limitations caused by Peppers’ mental

impairments, he did not address the fourth functional area under § 416.920a(c)(3), episodes of decompensation. (Tr. 14-15.) 

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Security Administration must determine the degree of limitation in four functional areas

including: (1) activities of daily living; (2) social functioning; (3) concentration, persistence,

and pace; and (4) episodes of decompensation. 20 C.F.R. § 416.920a(c)(3). Examiners at

the initial and reconsideration levels must document their determinations on a standardized

form and the ALJ must document his determinations within his decision. 20 C.F.R.

§ 416.920a(e). 

In this case, Dr. Gilliland, the physician responsible for documenting the

determinations at the reconsideration level, did not document the degree of limitation

Peppers’ mental impairments had in any of the four functional areas as required under

§ 416.920a. (Tr. 315-27.) In fact, he stated that the record did not contain sufficient

information for him to make the determinations. (Tr. 327.) The ALJ declined to adopt

Dr. Gilliland’s opinion on grounds that he believed the record contained new and material

evidence that showed that Peppers’ mental impairments caused only slight restrictions in the

first three areas set forth under 20 C.F.R. § 416.920a(c)(3).2

 (Tr. 15.) Under the regulations,

the ALJ was permitted to reject Dr. Gilliland’s opinion. 20 C.F.R. § 416.927(f). And the

ALJ did so because he believed that the record contained “new and material evidence such

as the testimony of the claimant.” (Tr. 15.) It is unclear, however, to what evidence the ALJ

referred. Peppers indicated in her testimony that her depression caused her to feel lethargic

 

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and that it sometimes affected her appetite and sleep patterns. (Tr. 38-39.) She testified that

she attended a support group once a week when she was not sick and that she had not had

suicidal thoughts since her suicide attempt until she was told the day before the hearing that

in addition to being HIV positive, she had hepatitis B and hepatitis C. (Tr. 39.)

Although Peppers’ testimony may have addressed the extent to which her depression

affected her energy levels, appetite, and sleep patterns, it did not address the extent to which

her depression may have affected other activities of daily living, and her ability to attend a

once weekly support group does not speak to whether she was limited in her ability to

interact socially in general; i.e, with persons who did not share her HIV-positive status.

Peppers’ testimony did not address her limitations in concentration, persistence, and pace,

and her testimony that she felt suicidal the day she learned she had hepatitis B and hepatitis

C calls into question whether she might experience future episodes of decompensation

connected to or motivated by her feelings regarding the status of her health.

In this case, because of the lack of medical evidence in the record regarding the

functional limitations caused by Peppers’ mental impairments, the ALJ should have recontacted Dr. Gradel for additional information. The regulations state that when a report

from a consultative examination fails to provide evidence with which to make a decision in

regard to the impairment at issue, the Commissioner will contact the medical source for

further information. 20 C.F.R. § 416.919p. 

Given that Dr. Gilliland believed that there was insufficient evidence in the record to

determine the functional limitations caused by Peppers’ mental impairments and given the

 

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lack of evidence in the record that would provide a medical basis for the ALJ’s

determinations regarding the same, the court must find that the ALJ’s determinations as to

Peppers’ mental impairments is not supported by substantial evidence. 

Remand is appropriate when it is determined that the Commissioner’s decision is not

supported by substantial evidence or when it is determined that the evidence was not

evaluated under proper legal standards. See Watson v. Barnhart, 288 F.3d 212, 215 (5th Cir.

2002) (citing Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999)). Substantial evidence is

more than a scintilla but less than a preponderance and is such relevant evidence that a

reasonable mind might accept as adequate to support the Commissioner’s decision. Watson,

v. Barnhart, 288 F.3d 212, 215 (5th Cir. 2002). 

Because remand is required for further analysis of Peppers’ mental impairments, on

remand it should also be determined whether Peppers is capable of maintaining employment

on a continuing basis. Although an ALJ is not required to make a specific finding regarding

the claimant’s ability to maintain employment in every case, such a finding is required when

the claimant’s ailment “waxes and wanes in its manifestation of disabling symptoms.” Frank

v. Barnhart, 326 F.3d 618, 619 (5th Cir. 2003). 

The records show that Peppers’ veins were inaccessible and therefore she had a port

inserted in her skin through which she could receive medications intravenously. The records

also indicate that Peppers underwent several hospitalizations in 2004 and that some were

related to infections in the port but that she experienced other infections and symptoms

unrelated to the port. Peppers underwent surgery to move the port in the spring of 2004.

 

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(Tr. 277, 386.). Thereafter, on May 4, 2004, it was determined that there was infection at the

site of the port, Peppers was hospitalized for eight days for intravenous fluid administration,

antibiotic treatment, and monitoring. (Tr. 374-76.) Seven days after she was released from

the hospital, on May 18, 2004, Peppers was examined in the hospital emergency room for

symptoms including fever, nausea, and vomiting. (Tr. 373.) On the following day, Peppers

was hospitalized again for an infection and released seven days later. (Tr. 378-79.)

Less than three weeks later Peppers was treated at the hospital emergency room with a

temperature of 102.6 degrees and was again admitted to the hospital for four days. (Tr. 360,

364.) Among the diagnoses at discharge were: adverse reaction to antibiotics; HIV; thrush;

bilateral ear infections; anxiety; mild diastolic heart failure; and diarrhea. (Tr. 364.)

Peppers’ primary physician completed a form on June 15, 2004, and stated in part that

Peppers was undergoing home intravenous treatment with a home health care provider for

a blood infection, that she had “multiple medical problems requiring close attention,” and

that she was unable to fulfill job requirements. (Tr. 331.)

Given the frequent hospitalizations that Peppers underwent in 2004 and the opinion

of her treating physician, further development of the record is needed to determine whether

Peppers is capable of maintaining employment. See Watson, 288 F.3d at 217-18.

III. Recommendation

Based on the foregoing discussion of the issues, evidence and the law, this court

recommends that the United States District Court reverse the Commissioner’s decision and

remand Peppers’ case for further administrative proceedings.

 

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IV. Right to Object

Pursuant to 28 U.S.C. § 636(b)(1), any party has the right to serve and file written

objections to the Report and Recommendation within ten days after being served with a copy

of this document. The filing of objections is necessary to obtain de novo review by the

United States District Court. A party’s failure to file written objections within ten days shall

bar such a party, except upon grounds of plain error, from attacking on appeal the factual

findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto

Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).

Dated: March 22, 2006.

______________________________________

NANCY M. KOENIG

United States Magistrate Judge

 

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