Thе plaintiff had applied to the Social Security Commission in 2009 (when he was 40 years old) for benefits to which he claimed to be entitled by reason of being disabled from gainful employment as a result of psychiatric disorders (primarily depression and bipolar disorder), chronic back and hip pain, and an anal fissure (cut or tear). The administrative law judge to whom his application was referred (John H. Pleuss) denied his claim оn the ground that he’s capable of performing unskilled sedentary work and is therefore not totally disabled. The district court, to which the applicant turned, upheld the denial of benefits, precipitating this appeal.
Voigt had been trained as a machinist, and until 2002 (the claimed onset date of his total disability) had worked intermittently as a machinist and as an assembly-line worker, jobs that the administrative law judge agreed he was no longer capable of doing, because of his physical and mental problems. Between 2001 (possibly earlier) and 2008, Voigt had taken prescription antidepressant medications . such as
In the fall of 2009, having abandoned the antidepressant medications, he sought the help of “crisis workers” at a mental health clinic. The intake report of his visit to the clinic summarizes his confused and rather wild description of his mental state. In a subsequent visit to the clinic he told the crisis worker who interviewed him that he thought it might be good for him to be in prison, where he might (he thought — we know not on what basis) get some additional experience as a machinist and earn money that he could save. Yet he also told that same worker in a later interview that his goal was to own a restaurant, which 'Vas and is both unrealistic given his mental condition and irrelevant to improving his skills as a machinist.
He was examined at the clinic by “an advanced practice psychiatric nurse” (see APNA, “What Is an Advanced Practice Psychiatric Nurse?” www.apna.org/i4a/ pages/index.cfm?pageid=3866# 1, visited March 15, 2015, as were the other websites cited in this opinion). The nurse, Debra Day, diagnosed him as suffering from depression (no surprise), but two years later (аfter his eighth examination by her), she submitted a report to the Social Security Administration in which she described Voigt as bipolar (oddly she did not mention depression, though of course depression is an aspect of bipolar disorder, which used to be called “manic depression”) and opined that his mental illnesses would cause him to miss work more than four days each month — which the vocational experts on whom the administrative law judges rely testify disqualifies a person from gainful employment. Garcia v. Colvin,
Day’s report listed a total of 13 symptoms exhibited by Voigt of poor psychological and social functioning, ranging from paranoia to “oddities of thought, perception, speech or behavior.” She deemed him “unable to meet competitive standards” (requirements for gainful employment) of punctuality, of “sustaining] an ordinary routine without special supervision,” of “working] in coordination with or proximity to others without being unduly distracted,” and of being able to “complete a normal workday,” “accept instructions,” “get along with coworkers,” and “deal with normal work stress.” (We omit five other requirements of gainful employment that Nurse Day deemed Voigt unable to satisfy-)
At her first examination of him, in October 2009, Day gave him а GAF score of 50. “GAF” stands for Global Assessment of Functioning, and a score of between 41 and 50 signifies serious psychiatric illness. The American Psychiatric Association has since eliminated the GAF scale from its Diagnostic and Statistical Manual of Mental Disorders as being unreliable — but this occurred after the administrative law judge issued his decision, which was in
Day prescribed an antidepressant medicine called Cymbаlta. Voigt reported improvement in his mental states and absence of the side effects that he’d experienced with the antidepressant medications that he had been taking previously. On the basis of that report, Day raised Voigt’s GAF score to 55. That brought it into the range of “moderate symptoms” or “moderate - difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or сoworkers).” He continued making progress, and after examining him again, Day raised his GAF score to 65, signifying “mild symptoms” and “generally functioning pretty well.” During two of their sessions she gave him a score of 70. GAF scores bounce around a great deal, however, because they depend on how the patient happens to feel the day he’s examined. See Punzio v. Astrue,
Meanwhile he’d been visiting another clinic because of physical distress that included the anal fissure, the bаck and hip pain (he described the hip pain as “sharp” and “stabbing”), and hemorrhoids (possibly related to the fissure). An osteopath designated by the Social Security Commission to examine Voigt after he applied for disability benefits reported that he suffers from lower back pain and trochanteric bursitis (an inflammation near the hip that causes pain in the hip, see Cleveland Clinic, “Trochanteric Bursitis,” http://my. clevelandclinic.org/health/diseases_ conditions/hic_Bursitis/hic_Trochanteric_ Bursitis). The osteopath also observed that Voigt walked with a “slow and painful gait.” Another physician and a psychologist examined Voigt’s medical records and concluded that despite his physical and psychiatric problems he was capable of performing unskilled sedentary work. Neither examined him, however.
After many months of gradual improvement, Voigt complained to Day, and to another licensed professional counselor as well, of a deterioration in his mental condition. He reported “raging in the parking lot” of the mental health clinic and becoming “very angry and upset” at a Super Bowl game. Day left Voigt’s GAF score at 65, but the other counselor reduced it to 51 to 60. (The administrative law judge erred in stating that Voigt’s lowest GAF score was 55.) This discrepancy in their scores is consistent with the probability noted earlier in this opinion that one’s GAF score will rise as one builds up a relationship with the practitioner who is scoring him.
Day believed that Voigt’s deterioration was attributable in part to his drinking, taking Vicodin (a pain-relieving drug), and
The administrative law judge went far outside the record when he said that if Voigt were as psychologically afflicted as Day thought, he “would need to be institutionalized and/or have frequent inpatient treatment”—a medical conjecturе that the administrative law judge was not competent to make, see Browning v. Colvin,
The judge remarked that because Voigt’s “parents apparently pay his rent and expenses ..., these facts raise a question as to whether [his] continuing unemployment is actually due to medical impairments.” No, it doesn’t, because if he can’t work, he has to be supported by someone or by some agency. More to the point is the administrative law judge’s remark that Voigt had had only sporadic employment in the decade preceding the claimed onset of his disability in 2002. He may have been a malingerer, mooching off his parents, or he may have been more psychologically disturbed than anyone realized. In any event his parents may be continuing to support him because whatever his physical and mental state in the decade ending in 2002 he may now no longer be capable of working.
The administrative law judge also contradicted himself about whether Voigt is currently a malingerer when later in his opinion he remarked that Voigt had “made statements during treatment suggеsting he actually is eager to work, but is unable to find work, which suggests that the claimant is not unemployed due to disability.” Actually those statements were consis- ■ tent with his wanting to lead a normal life yet being unable to land a job because he’s disabled from gainful employment by a combination of physical and mental problems that a prospective employer would quickly notice. Voigt acknowledged that having been unemployed for such a long time makes it harder for him to get a job, but that’s not inconsistent with his being disabled. A disabled person may want to work, may seek work, and in some cases may land work. We’ve noted cases in which although the claimant is not only working but also “earning a decent wage, he really is permanently disabled from engaging in gainful activity. Maybe his boss feels desperately sorry for him and is retaining him on the payroll even though he .is incapable of working. That act of charity ought not be punished by denying the employee benefits and thus placing pres
The only other witness at the hearing was a vocational exрert, who testified on the basis of what the administrative law judge found that Voigt could and could not do that while he could no longer work as a machinist he could do simple sedentary work such as that of an office assistant (whatever that means), security guard (very doubtful — a security guard with significant mental health problems is likely to be a danger to himself and others), an assembler, or a packager. The vocational expert said that there are 23,000 such jobs in Wisconsin (where Voigt lives), but did not explain where he’d gotten that figure. He added that anyone who would miss work two or more days per month (not just three or more) more than occasionally would not qualify for gainful employment.
Although concluding that Voigt was not totally disabled, the administrative law judge characterized Voigt’s trochanteric bursitis, fissure, depression, and bipolar disorder as severe, while discounting his back pain on two grounds. One was that “he ha[d] not taken any narcotic based pain-relieving medications.” He had, however, taken Vicodin (albeit illegally), a powerful pain reliever. The other ground was Voigt’s failure to undergo “intensive treatment[,] like injections, which would be expected [to be prescribed for] a person experiencing disabling pain.” Injecting steroids or other drugs is sometimes suggestеd for treating back pain, see Web MD, Back Pain Health Center, “Injections for Back Pain Relief,” www. webmd.com/backpain/guide/baek-pain-injection-treatments, but the administrative law judge offered no reason for thinking that it would have been appropriate for Voigt. Nor did he note the natural reluctance of a person with psychiatric problems (perhaps of any person) to take powerful pain medications, as they can have serious side effects if not carefully used. A mentally ill person is more likely to abuse opiates like Vicodin (see National Alliance on Mental Illness, “Opiates and Mental Illness,” www2.nami.org/Con-teni/NavigationMenu/Hearts_and _Minds/Smoking_Cessation/Opiate_Abuse _and_Mental_Illness.htm) than a healthy person. In addition, opiates can increase symptoms of bipolar disorder. See La Hacienda Treatment Center, “Opiates,” www.lahacienda.com/resources/articles/ opiates/; cf. Beardsley v. Colvin,
At the hearing Voigt described some of his psychological symptoms but also emphasized health problems resulting from his anal fissure, including bleeding, and poor bowel control that requires him to spend 40 consecutive minutes on the toilet about four times every month. The administrative law judge discounted these problems by noting Voigt’s refusal to undergo a colonoscopy between 2006 and 2008 and a rectal examination in 2010, but failed to note that Voigt testified that he’d been told that he would have to have surgery to repair the fissure and that he was fearful of having a colonoscopy — a common fear, known as “colonoscopy jitters.” See, e.g., Riverside, “Got the Colonoscopy Jitters?” www.riversideonline.com/services/ cancer/colon/colonoscopy-jitters.cfin; cf. Beardsley v. Colvin, supra,
The administrative law judge discounted Voigt’s mental problems on the ground that they had been solved by his taking Cymbalta. That was contrary to Day’s report, however, which said that his mental state continued to be disturbed, and though it was exacerbated by his substance abuse she did not consider that the primary cause of his inability to relate to people in a normal way. The аdministrative law judge gave “very little weight” to Day’s report, however, on the ground that a mere nurse is not an “acceptable medical source,” and that Day had seen Voigt on only a few occasions and had given him a pretty high GAF score, and further that as mentioned earlier “if the claimant were as limited as indicated in [Day’s] opinion, the claimant would need to be institutionalized and/or have frequent inpatient trеatment. These inconsistencies render the opinion less persuasive, and it is due very little weight.”
These were not adequate reasons for rejecting Day’s report and therefore turning down Voigt’s application for disability benefits. As for Day’s not being an “acceptable medical source,” the administrative law judge failed to note that “evidence from other sources,” including nurse practitioners, may be used tо “show the severity of [the applicant’s] impairment(s) and how it affects [his or her] ability to work.” 20 C.F.R. §§ 404.1513(a), (d), (d)(1), 416.913(a), (d), (d)(1); see also SSR 06-3p. As for the number of visits, Day had examined Voigt eight times in two years and the administrative law judge did not say that the visits were too infrequent to have enabled Day to assess the trend (first up, then down) in Voigt’s condition. Most questionable of all is the judge’s statement that if Day’s description of Voigt’s symptoms were accurate he would have to be institutionalized or hospitalized (if hospitalization is what the administrative law judge meant by “inpatient treatment”). Cymbalta may have enabled Voigt to keep out of mental or other hospitals; the question is whether it enables him, despite acute difficulties that Cymbalta has not dispelled in dealing with other human beings, to obtain gainful employment.
The administrative law judge committed the further error of thinking that how one uses his time at home is compelling evidence of whether or not one is employable. See Beardsley v. Colvin, supra,
Nor did the administrative law judge explain his assumption that doing limited online research or playing video games online requires the same concentration as is required for full-time employment. In Powers v. Apfel,
And finally the administrative law judge fully credited the vocational expert’s testimony. He did this even though the testimony did not explain the source of the expert’s estimate of the number of jobs that Voigt could perform, and even though the inclusion of “security guard” among those jobs should have nudged the administrative law judge to explore the expert’s basis for thinking that someone with Voigt’s psychiatric problems would be able to perform such a job without danger to himself and others. Nurse Day had noted Voigt’s “problems with irritability and [with his] sometimes explosive behavior.” Among the people he doesn’t get along with are police officers — which doesn’t augur well for success as a security guard.
The administrative law judgе said that “the vocational expert’s testimony is consistent with the information contained in the Dictionary of Occupational Titles,” but as we and others have explained, the DOT does not contain information on which to base an estimate of the number of available jobs of a particular kind. Browning v. Colvin, supra,
As we said in the Browning case, we “have no idea what [is] the source or accuracy of the number of jobs that vocational experts (including the one in this case, whose estimates the administrative law judge accepted without comment) claim the plaintiff could perform that exist in the plaintiffs area, the region, or the nation. There is no official source of number of jobs for each job classification in the Dictionary of Occupational Titles, and while there are unofficial estimates of jobs in some categories, the vocational experts do not in general, and the vocational expert in this case did not, indicate what those data sources are or vouch for thеir accuracy. And many of them estimate the number of jobs of a type the applicant for benefits can perform by the unacceptably crude method of dividing the number of jobs in some large category (which may be the only available data) by the number of job classifications in the category, even though there is no basis for assuming” that there is the same number of jobs in each narrow category.
The judgment of the district court is reversed and the case remanded to that court with instructions to remand it to the Social Security Administration for further proceedings consistent with this opinion. We do not say that Voigt is in fact totally