clerk, but that due to her sleep pattern there was no work that she could
perform. (R. at 81-82.)
Scope of Review
The Social Security Act allows a person to file a civil action to
obtain review of a decision by the Commissioner of Social Security.
42 U.S.C. § 405 (g) (1994), 42 U.S.C. § 1383 (c)(3) (1994). The
final decision of the Commissioner is conclusive if supported by
substantial evidence and untainted by an error of law. Davis v.
Shalala., 862 F. Supp. 1, 4 (D.D.C. 1994).
It is the duty of the ALJ to make findings of fact and to resolve
conflicts in the evidence. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th
Cir. 1990). In reviewing an administrative decision, a court may not
determine the weight of the evidence, nor substitute its judgment for
that of the Secretary if her decision is based on substantial evidence.
See id. Instead, the reviewing court must carefully scrutinize the entire
record to determine whether the Secretary, acting through the ALJ, has
analyzed all the evidence and has sufficiently explained the weight he
has given to obviously probative material. See Davis, 862 F. Supp. at 2.
Because the broad purposes of the Social Security Act require a liberal
construction in favor of disability, the court must view the evidence in
the light most favorable to the claimant. See id. at 4.
The reviewing court must also determine whether credible evidence was
properly considered. See Dionne v. Heckler, 585 F. Supp. 1055 (D.Me.
1984). The ALJ's final decision must contain "a statement of findings and
conclusions, and the reasons or the basis therefor, on all material
issues of fact, law, or discretion presented on the record."
5 U.S.C. § 557 (c) (1994). An ALJ cannot merely disregard evidence
which does not support his conclusion. See Dionne, 585 F. Supp. at 1060.
It is reversible error for an ALJ to fail in his weight he has given to
certain probative items of evidence. See Davis, 862 F. Supp. at 2.
Failure to develop the record makes it difficult for a reviewing court to
determine errors in application of law. The requirement to explain
findings supported by substantial evidence facilitates proper application
of their limited scope of review. A reviewing court should not be left
guessing as to how the ALJ evaluated probative evidence. See Taylor v.
Heckler, 595 F. Supp. 489, 492 (D.D.C. 1984); Dionne, 585 F. Supp. at
The Social Security Act defines disability as the "inability to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can expected to last for a
continuous period of not less than twelve months." 42 U.S.C. § 423
(d)(1)(A) (1994). The Social Security Act provides a frame work with
which to evaluate evidence to determine disability. 42 U.S.C. § 423
(1994). Four types of evidence are to be considered in making a
disability determination: "(1) Objective medical facts or clinical
findings; (2) diagnoses of examining physicians; (3) subjective evidence
of pain and disability as testified to by the claimant and corroborated
by other observers; and (4) the claimant's age, education, and work
history." Rodriguez v. Schweiker, 640 F.2d 682, 685 (5th Cir. 1981). All
four of these elements must be regarded in combination, and it is error
for an ALJ to disregard any one of them. See id.
Certain types of opinion evidence are accorded more weight than
others. See 20 C.F.R. § 404.1527, 416.927 (2000). For example, more
weight is given to those medical opinions originating from a longer
treating relationship or supported by objective medical testing and
findings. See 20 C.F.R. § 404.1527 (d), 416.927(d) (2000).
Furthermore, the more consistent an opinion is with the record as a
whole, the more weight that opinion is given. See
20 C.F.R. § 404.1527 (d)(4), 416.927(d)(4) (2000).
The ALJ found:
1. As of June 10, 1993, Martin met the disability
insurance status requirements of the Social
Security Act and that she continued to meet them
2. She had not been engaged in substantial gainful
activity since June 10, 1993.
3. Martin's chronic obstructive pulmonary disorder,
pain disorder and chronic fatigue, while severe,
did not amount to an impairment or combination of
impairments listed in or medically equal to one
listed in Appendix 1, Subpart P, Regulations No. 4
(20 C.F.R. § 404.1521 and 416.921 (2000)).
Martin's alleged hypertension, bronchitis,
arthritis, dysthymic disorder, status-post
nephrectomy, personality disorder and hiatal hernia
4. Her subjective complaints were credible only to the
extent that they restricted her from the full range
of medium work.
5. Martin has the residual functional capacity to
work, except for lifting more than 50 pounds at a
time or frequently lifting more than 25 pounds.
There were no non-exertional limits.
6. Martin's prior work did not require Martin to
exceed the limits of Finding #5.
7. Martin's impairments did not limit her from
performing her past work as a secretary.
8. Martin was therefore not under a disability as
defined in the Social Security Act at any time
through the date of the decision.
(R. at 29-30.)
In arriving at these findings, the ALJ first concluded that Martin
retained the ability to lift up to 50 pounds at a time and therefore
retained the ability to perform "the exertional and nonexertional
requirements of the full range of medium work." (R. at 30.) He found that
the "medical evidence shows that the claimant has chronic obstructive
pulmonary disease, mild asthma, pain disorder and chronic fatigue." (R. at
27.) and that it was "reasonable to conclude that these conditions could
cause the kind of symptoms and exertional limitations that the claimant
has described." (R. at 27.) He concluded, however, that these symptoms
were not as severe as Martin complained and her physicians had found.
The ALJ found support for his conclusion in the report of Dr.
Koritzinsky that (1) Martin's spirometry tests results were consistent
with mild obstructive airway disease, secondary to smoking; (2) Martin
did not appear to have significant coronary disease; (3) her complaints
of fatigue were secondary to her obstructive pulmonary disease.
He also relied on Martin's testimony that she was able, for example, to
cook, clean, shop, visit friends, drive an automobile, lift up to 25
pounds, stand for 15 to 20 minutes and sit for an hour. He then listed,
without further comment or elucidation of their effects, seven
medications Martin takes.
The ALJ then concluded that "claimant's allegations of subjective
symptoms and the severity of the limitations arising therefrom are fairly
credible but only to the extent that they limit her to the full range of
medium work." (R. at 30.)
He reached this determination despite (1) the opinion of Dr. Marshall
that Martin was "totally disabled because of chronic fatigue syndrome,
which adversely affected her concentration and memory" (R. at 28.); (2)
the opinion of Dr. Ratner that Martin's psychological testing "provided a
picture of a person with a moderately severe mental illness" (R. at 28.);
(3) Dr. Wynne's conclusion that Martin's condition warranted intensive
psychotherapy and that she was not even capable of part time work until
she got it (R. at 389.); and (4) the opinion of the vocational expert
that due to Martin's sleep pattern there was no work she could perform.
(R. at 81-82.)
As now will be explained, the ALJ's decision must be reversed because
(1) the ALJ ignored probative and uncontradicted evidence that Martin was
disabled and (2) dismissed irrationally the medical opinions of Doctors
Marshall, Ratner and Wynne.
The ALJ Ignored Highly Probative Evidence
The ALJ summarized Martin's testimony as to her daily activities but
ignored her testimony that the medication she takes causes her to have to
sleep from 8 a.m. to 11 a.m daily. He also ignored the testimony of the
vocational expert that this sleep pattern means that there was no work
that Martin could perform.
The ALJ's failure to consider this uncontradicted, probative evidence
that goes to the very heart of the case before him dooms his opinion. If
there is one fundamental principle guiding judicial review of an ALJ
decision in a Social Security case, it is that the ALJ may not ignore
evidence inconsistent with his opinion without explanation. See Dionne,
585 F. Supp. at 1060. This is particularly so when a vocational expert is
called, lest the court be left with a record which suggests that the ALJ
simply substituted his judgment of what the claimant could do for the
uncontradicted testimony of an expert in the field. See id. As a result
of the ALJ's ignoring the testimony as to the significance of Martin's
sleep pattern, the ultimate decision in this case is that Martin is
capable of working an eight hour day even though to do so she will have
to find an employer gracious enough to permit her to sleep for one half
of the working day. Obviously, such an absurd conclusion cannot possibly
be described as being based on substantial evidence and in accordance
with the law.
The same result is achieved by using a different analysis. Step three
of the five step process used by the Social Security Administration to
evaluate a disability states that if the claimant has an impairment(s)
which meet(s) the durational requirement and is listed in Appendix 1 or
is equal to a listed impairment(s), the Social Security Commissioner will
find the claimant disabled without considering age, education, and work
experience. See 20 C.F.R. § 404.1520 (d) (2000). "Equal" in this
section means equal in severity. Bowen v. Yuckert, 482 U.S. 137, 141, 107
S.Ct. 2287, 96 L.Ed.2d 119 (1987). A "severe impairment" is an impairment
which significantly limits physical or mental ability to do basic work
activities. 20 C.F.R. § 404.1520 (c) (2000).
In determining whether an individual's physical or
mental impairment(s) are of a sufficient medical
severity that such impairment(s) could be the basis of
eligibility under this section, the Commissioner of
Social Security shall consider the combined effect of
all of the individual's impairments without regard to
whether any such impairment, if considered
separately, would be of such severity. If the
Commissioner of Social Security does find that a
medically severe combination of impairments, the
combined impact of the impairments shall be considered
throughout the disability determination process.
42 U.S.C. § 423 (d)(2)(B) (1994).
The ALJ is therefore required by this statutory and regulatory regiment
to consider the cumulative effects of all claimant's ailments and, if
relevant, medications. As to the latter, the Commissioner should consider
the type, dosage, effectiveness and side effects of any medication taken
to deal with an applicant's ailments. See 20 C.F.R. § 404.1529
(c)(3)(iv), 416.929(c)(3)(iv) (2000). It is insufficient to list the
impairments individually and to state that separately they are
non-severe. See Cook v. Heckler, 783 F.2d 1168, 1174 (4th Cir. 1986). The
ALJ must instead
make a particularized finding on the effect of combination of impairments
and, if necessary, the medication that the claimant must take. See Hines
v. Bowen, 872 F.2d 56, 59 (4th Cir. 1989).
In the present case, the ALJ did not properly consider or explain the
effect of the combination of impairments or the consequences to Martin of
the sleep inducing medication she takes to control them. Remarkably, he
never considered in any way the fact that for Martin the combination of
her ailments and the medication she took for them make her sleep for
three hours each day from 8:00 AM to 11:00 AM. His ignorance of that
crucial reality was truly "Hamlet without the Dane." This failure on the
part of the ALJ constitutes an obvious violation of his obligation to view
Martin's situation not atomistically but synergistically by understanding
the interrelated consequences to her of her physical and psychological
problems and of the medication she had to take to secure relief from
The ALJ Dismissed Irrationally the Medical Opinion of Drs. Marshall,
Ratner and Wynne
In assessing the psychological evidence, the ALJ favored the report of
the SSA physician, Dr. Richard Schaengold, who performed a consultative
psychiatric examination of Martin and dismissed the contrary conclusions
of Doctors Wynne and Ratner. (R. at 24-25; 28-29.) Dr. Schaengold never
administered any psychological tests to Martin while Doctors Wynne and
Ratner did. The ALJ never commented upon this difference and thereby
implicitly viewed the doctors' opinions of equal probative force.
20 C.F.R. § 404.1527 (d)(3) (2000), however, understandably states
that the more a medical source presents relevant evidence to support an
opinion, particularly medical signs and laboratory findings, the more
weight the Social Security Administration will give that opinion. To
equate the three opinions is to equate those opinions predicated on
interviews and testing, using recognized scientific protocols designed to
arrive at objective, verifiable conclusions, with a merely consultative
opinion, lacking in objective measurements. Such comparison obliterates a
significant difference which the science itself acknowledges.
Furthermore, the evidence in this record indicates that the more
in-depth testing disclosed problems which a purely consultative exam may
This is one of those difficult cases in which the
clinical picture appears benign, i.e., there is no
overt evidence of a psychiatric condition that is
disabling, while the psychological testing reveals a
very disturbed woman who must work hard to keep the
lid on her powerful and troubling emotions. (R. at
The ALJ's failure to appreciate the significant difference between the
opinions based on significant testing and the opinion based on one
interview in the teeth of the evidence of the importance of that
difference compels the conclusion that he erred in a most fundamental way
in his assessment of the evidence.