MEMORANDUM OPINION
GUIN, District Judge.
Plaintiff brings this action pursuant to the provisions of section 205(g) of the Social Security Act, [hereinafter the Act], 42 U.S.C. § 405(g),
seeking judicial review of a final adverse decision of the Commissioner of Social Security [hereinafter Commissioner], Application for a period of disability and disability insurance benefits under sections 216(i) and 223 of the Social Security Act, as amended, was filed June 29, 1997, as was an application for SSI as provided under Section 1601 of the Act, 42 U.S.C. §§ 1381
et seq.
These applications were denied initially and upon reconsideration. Request for a hearing before an administrative law judge [hereinafter ALJ] [Jerry M. Vanderhoef] was granted, and a hearing was held March 23, 1999. The ALJ’s decision to deny benefits was handed down July 9, 1999. Although new evidence was submitted to the Appeals Council plaintiffs request for review was denied January 3, 2003. An appeal to this court followed.
Plaintiff is a 51 year old male with an eighth grade education. Past relevant work is as a janitor, landscaper, construction laborer, and cook. He has not been engaged in any relevant work since claimed disability onset of June 29, 1997— a date later amended to August 14, 1997. Mr. Lacy claims disability due to panic attacks
and side effects of medication.
Plaintiff has been treated for many medical problems covering everything from knee pain, cardiac arrythmia, anxiety, depression, etc. While these problems are significant and play a role in his disability the court is basically limiting its opinion to two areas: his panic disorder
,
and the side effects of his medication.
Dr. Sadaat Ansari treated plaintiff four times from June 16, 1997, through July 14, 1998. His notes indicate treatment for panic disorder. Plaintiff was feeling sleepy with Xanax.
He tapered off the Xanax and prescribed Buspar.
The doctor referred plaintiff to the Mental Health Center.
Mr. Lacy was treated in the Huntsville Hospital Emergency Room [hereinafter Huntsville ER] in June 1997 for chest pain and hyperventilation Xanax was prescribed. Treatment for other panic attack symptoms follows:
1) September 6, 1997: Huntsville ER— shortness of breath;
2) October 8, 1997: assessment by Dr. Edward Turpin, psychiatrist of panic disorder without agoraphobia
— possible alcohol abuse — global assessment of functioning [GAF] level of 60;
*
3) December 12, 1997: Huntsville ER— shortness of breath;
4) January 6, 1998: Huntsville ER— chest pain, nausea, excitement — out of Xanax;
5) March 1998: treatment (twice) by psychologist Dr. Robert L. Geist for panic attacks
— rapid breathing, racing heart, shaking hands — diagnosis panic disorder;
6) April 8, 1998, psychological evaluation by William McDonald, PhD: assessment Panic disorder With Agoraphobia — difficulty remembering dates from past — affect somewhat restricted — quite restless — insight and judgment somewhat limited due to intellectual limitations. July 7, 1998: Huntsville ER — treatment irregular heart beats and chest pain;
7) July 7, 1998: Huntsville ER — treatment irregular heart beats and chest pain:
8) July 21, 1998: consultation Dr. S. Reddy Karri of Alabama Cardiology at request of Dr. Ansari for chest pain and shortness of breath — probably not cardiac related;
9) June 4, 1999, consultative evaluation by Dr. Sadasiva H. Katta of Alabama Cardiology for chest pains and palpitations — dizziness, shortness of breath, weakness, diaphoresis — impression atypical chest pain with palpitations — mitral valve possible contributor to panic attacks — Hotter monitor;
Psychiatrist Dr. Hugh Sharp began treating plaintiff for his panic attacks beginning March 14, 1998. The doctor noted the attacks began in 1997. At the time of the first examination plaintiff was somewhat anxious with rapid speech and tremulous motor movements. Plaintiff expressed feelings of hopelessness, chronic low level anxiety, some withdrawal but no agoraphobia.
The doctor concluded plaintiff self-medicated with caffeine and alcohol. He adjusted claimant’s medications, recommended he return every three months or as needed due to finances,
and decrease use of ethanol.
Three months later Dr. Sharp concluded the panic disorder was unimproved. Plaintiff was taking Xanax, Depakote,
and Paxil.
On June 13, 1998, the doctor noted plaintiff was having side effects from medication. He was queasy and shaky on Paxil. Lacy’s affect was reactive and anxious. His mood was euthymic. Insight and judgment were fair. Plaintiff “[sjtill jerks and kicks” at night and wakes up in a panic. The doctor discontinued use of
Xanax, continued Klonopin
and Paxil, and decreased Depakote.
By July 13, 1998, plaintiff had reduced his alcohol consumption. Dr. Sharp recorded side effects from medication: decreased memory, daytime sleeping, nighttime insomnia; forgetfulness. The doctor concluded that Klonopin was producing improvement in the panic disorder, but possibly causing memory problems. He discontinued use of Depakote and instructed plaintiff to return within two weeks.
On the September 9, 1998, examination Dr. Sharp diagnosed panic disorder. Plaintiff had had two panic attacks since the last visit. Other symptoms included autonomic instability, disrupted sleep patterns, and restless legs. The doctor observed deteriorated grooming habits, a slightly anxious affect, and increased motor activity. While beer consumption was down to three beers a day, the doctor advised further decrease in consumption.
Dr. Sharp completed a “Medical Assessment of Ability To Do Work Related Activities (Mental)” on February 8, 1999.
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MEMORANDUM OPINION
GUIN, District Judge.
Plaintiff brings this action pursuant to the provisions of section 205(g) of the Social Security Act, [hereinafter the Act], 42 U.S.C. § 405(g),
seeking judicial review of a final adverse decision of the Commissioner of Social Security [hereinafter Commissioner], Application for a period of disability and disability insurance benefits under sections 216(i) and 223 of the Social Security Act, as amended, was filed June 29, 1997, as was an application for SSI as provided under Section 1601 of the Act, 42 U.S.C. §§ 1381
et seq.
These applications were denied initially and upon reconsideration. Request for a hearing before an administrative law judge [hereinafter ALJ] [Jerry M. Vanderhoef] was granted, and a hearing was held March 23, 1999. The ALJ’s decision to deny benefits was handed down July 9, 1999. Although new evidence was submitted to the Appeals Council plaintiffs request for review was denied January 3, 2003. An appeal to this court followed.
Plaintiff is a 51 year old male with an eighth grade education. Past relevant work is as a janitor, landscaper, construction laborer, and cook. He has not been engaged in any relevant work since claimed disability onset of June 29, 1997— a date later amended to August 14, 1997. Mr. Lacy claims disability due to panic attacks
and side effects of medication.
Plaintiff has been treated for many medical problems covering everything from knee pain, cardiac arrythmia, anxiety, depression, etc. While these problems are significant and play a role in his disability the court is basically limiting its opinion to two areas: his panic disorder
,
and the side effects of his medication.
Dr. Sadaat Ansari treated plaintiff four times from June 16, 1997, through July 14, 1998. His notes indicate treatment for panic disorder. Plaintiff was feeling sleepy with Xanax.
He tapered off the Xanax and prescribed Buspar.
The doctor referred plaintiff to the Mental Health Center.
Mr. Lacy was treated in the Huntsville Hospital Emergency Room [hereinafter Huntsville ER] in June 1997 for chest pain and hyperventilation Xanax was prescribed. Treatment for other panic attack symptoms follows:
1) September 6, 1997: Huntsville ER— shortness of breath;
2) October 8, 1997: assessment by Dr. Edward Turpin, psychiatrist of panic disorder without agoraphobia
— possible alcohol abuse — global assessment of functioning [GAF] level of 60;
*
3) December 12, 1997: Huntsville ER— shortness of breath;
4) January 6, 1998: Huntsville ER— chest pain, nausea, excitement — out of Xanax;
5) March 1998: treatment (twice) by psychologist Dr. Robert L. Geist for panic attacks
— rapid breathing, racing heart, shaking hands — diagnosis panic disorder;
6) April 8, 1998, psychological evaluation by William McDonald, PhD: assessment Panic disorder With Agoraphobia — difficulty remembering dates from past — affect somewhat restricted — quite restless — insight and judgment somewhat limited due to intellectual limitations. July 7, 1998: Huntsville ER — treatment irregular heart beats and chest pain;
7) July 7, 1998: Huntsville ER — treatment irregular heart beats and chest pain:
8) July 21, 1998: consultation Dr. S. Reddy Karri of Alabama Cardiology at request of Dr. Ansari for chest pain and shortness of breath — probably not cardiac related;
9) June 4, 1999, consultative evaluation by Dr. Sadasiva H. Katta of Alabama Cardiology for chest pains and palpitations — dizziness, shortness of breath, weakness, diaphoresis — impression atypical chest pain with palpitations — mitral valve possible contributor to panic attacks — Hotter monitor;
Psychiatrist Dr. Hugh Sharp began treating plaintiff for his panic attacks beginning March 14, 1998. The doctor noted the attacks began in 1997. At the time of the first examination plaintiff was somewhat anxious with rapid speech and tremulous motor movements. Plaintiff expressed feelings of hopelessness, chronic low level anxiety, some withdrawal but no agoraphobia.
The doctor concluded plaintiff self-medicated with caffeine and alcohol. He adjusted claimant’s medications, recommended he return every three months or as needed due to finances,
and decrease use of ethanol.
Three months later Dr. Sharp concluded the panic disorder was unimproved. Plaintiff was taking Xanax, Depakote,
and Paxil.
On June 13, 1998, the doctor noted plaintiff was having side effects from medication. He was queasy and shaky on Paxil. Lacy’s affect was reactive and anxious. His mood was euthymic. Insight and judgment were fair. Plaintiff “[sjtill jerks and kicks” at night and wakes up in a panic. The doctor discontinued use of
Xanax, continued Klonopin
and Paxil, and decreased Depakote.
By July 13, 1998, plaintiff had reduced his alcohol consumption. Dr. Sharp recorded side effects from medication: decreased memory, daytime sleeping, nighttime insomnia; forgetfulness. The doctor concluded that Klonopin was producing improvement in the panic disorder, but possibly causing memory problems. He discontinued use of Depakote and instructed plaintiff to return within two weeks.
On the September 9, 1998, examination Dr. Sharp diagnosed panic disorder. Plaintiff had had two panic attacks since the last visit. Other symptoms included autonomic instability, disrupted sleep patterns, and restless legs. The doctor observed deteriorated grooming habits, a slightly anxious affect, and increased motor activity. While beer consumption was down to three beers a day, the doctor advised further decrease in consumption.
Dr. Sharp completed a “Medical Assessment of Ability To Do Work Related Activities (Mental)” on February 8, 1999. Under the category “Making Occupational Adjustments” the doctor opined plaintiff has no useful ability to function in the areas of dealing with the public, dealing with work stresses, and functioning independently. He opined that plaintiffs ability to function in the area of maintaining attention/concentration to be seriously limited, but not precluded. In describing claimant’s limitations the doctor said the following:
Pt. limited by poorly controlled panic attacks and dependent personality traits. During an attack he is non-functional. His dependence renders him unable to make decisions alone.
Because chronic anxiety impairs plaintiffs concentration the doctor rated his ability to understand, remember and carry out complex job instructions as poor/ none.
His ability to understand, remember and carry out detailed but not complex job instructions is “Fair.” He has “Good” ability to understand, remember and carry out simple job instructions.
In the doctor’s opinion the plaintiff does not rate well in his ability to adjust personally and socially. He rated his ability to behave in an emotionally stable manner, relate predictably in social situations, and demonstrate reliability as “Fair” because plaintiffs panic attacks are unpredictable. He had missed appointments and the doctor considered him unreliable.
The following new evidence was submitted to the Appeals Council:
1) February 8, 1999, progress notes of Dr. Sharp: panic attacks twice a week — afraid to drive — insomnia, trouble concentrating, and night sweats — periodic panic attacks, one of which had occurred while plaintiff was working on his car and resulted in an accident — part-time work ended week before.
2) April 15, 1999, progress notes of Dr. Sharp: symptoms unimproved— quiet — avoidance eye contact — restless — cooperative;
3) June 14, 1999, progress notes of Dr. Sharp: plaintiff unable to afford medication — thus noncompliant with prescribed medication — no improvement in panic attacks — wife dissatisfied— mental status quiet, cooperative, anxious, and blunted;
4) August 24, 1999, progress notes of Dr. Sharp: depression over last three weeks — panic;
5) March 10, 2000, progress notes of Dr. Sharp: panic disorder better on Zoloft — two panic attacks during the last week;
6) June 5, 2000, progress notes of Dr. Sharp: panic disorder worse — depression set in — plaintiff withdrawn and sleeping excessively;
7) August 25, 2000, appointment with Dr. Sharp: plaintiff no show — due to an increase in his heart rate;
8) August 28, 2000, progress notes of Dr. Sharp: depression and panic disorder better — Dr. Katta claimant’s cardiologist.
At the hearing vocational expert Dr. John Bryson testified plaintiff has no transferable skills. Upon reviewing the medical assessment completed by treating psychiatrist Dr. Hugh Sharp, referred to earlier, Dr. Bryson opined that if the assessment were accurate plaintiff would be unable to do his past work. Specific questioning concerning this document follows:
Q. Does this appear to you to be a medical assessment of ability to work—
Yes, sir. <!
—completed by Dr. Sharp? ©*
Yes, sir. <J
If that — if the — if that were determined to be a — an accurate evaluation of his abilities, would he be able to do the past work he’s done?
&
No, primarily because of poor or none, ability to function independently or to deal 'with any work stresses.
How about any other work as you understand that term to be defined in the national economy?
<y
No, sir. <ri
And what would your reasons for that be?
&
A. Same reasons.
The ALJ asked no hypothetical
questions.
In finding that plaintiff is able to perform his past relevant work as a janitor, landscaper, and cook the ALJ ignored the assessment of Dr. Sharp, primarily for two reasons: Dr. Sharp’s treatment was limited to only four visits;
and the lack of recent treatment (five month lapse between the date of the opinion and the last date Dr. Sharp saw Lacy) is inconsistent with the limitations. The ALJ. found plaintiff able to perform a full range of medium work with no more than moderate limitations in the ability to meet the mental demands of work.
“The function of a reviewing court is limited to determining whether the Secretary’s findings are supported by substantial evidence considering the evidence as a whole.”
Mims v. Califano,
581 F.2d 1211, 1213 (5th Cir.1978). “Substantial evidence is more than a scintilla, but less than a preponderance.”
Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir.1983). It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.
Richardson v. Perales,
402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842, 852 (1971). The court is still responsible for scrutinizing “ ‘the record in its entirety to ascertain whether substantial evidence supports each essential administrative finding.’ ”
Boyd v. Heckler,
704 F.2d 1207, 1209 (11th Cir.1983) (quoting
Walden v. Schweiker,
672 F.2d 835, 838 (11th Cir.1982)). The Eleventh Circuit has gone on to state the following:
Our limited review does not, however, mean automatic affirmance, for although we defer to both the Secretary’s fact-finding and her policy judgments, we must still make certain that she has exercised reasoned decision making. To this end, we evaluate the Secretary’s findings in light of the entire record, not only that evidence which supports her position.
Owens v. Heckler,
748 F.2d 1511 (11th Cir.1984).
The court must further consider whether the decision of the Commissioner contains a material error of law. In
Walker v. Bowen,
826 F.2d 996, 999 (11th Cir.1987), the court held:
Despite this limited review, we scrutinize the record in its entirety to determine, the reasonableness of the secretary’s factual findings.
Bridges,
815 F.2d at 624;
Arnold v. Heckler,
732 F.2d
881, 883 (11th Cir.1984). No similar presumption of validity attaches to the Secretary’s legal conclusions, including determination of the proper standards to be applied in evaluating claims.
Wiggins v. Schweiker,
679 F.2d 1387, 1389 (11th Cir.1982).
Having evaluated the evidence, the court holds that the evidence does not support the decision denying disability benefits. Improper legal standards were applied. The ALJ failed to consider all the disabling aspects of plaintiffs panic disorder. The ALJ failed to accept the opinion of treating physician
Sharp that plaintiff suffers from debilitating panic attacks — an opinion bolstered by other medical records.
,
The ALJ failed to consider the effects of the side effects of plaintiffs medication.
,
For the above-stated reasons the court holds that the opinion of the Commissioner is REVERSED. An order consistent with this opinion is being entered contemporaneously herewith.
FINAL ORDER
In conformity with and pursuant to the memorandum opinion entered contemporaneously, it is
ORDERED, ADJUDGED and DECREED that the decision of the Commissioner of Social Security be and it hereby is REVERSED, and the case is REMANDED to the Commissioner with instructions that the plaintiff be granted the benefits claimed.
It is FURTHER ORDERED that the Commissioner withhold from payments which he may determine are due plaintiff
under this order an amount not to exceed 25 percent of the total amount of disability benefits to which the plaintiff is entitled, pursuant to the provisions of section 206 of the Social Security Act, as amended 42 U.S.C. § 406(b). The Commissioner is directed to advise the court of the amount withheld so that the matter may be set for final determination of the amount of attorney’s fees to be allowed plaintiffs counsel for services rendered in representing the plaintiff in this cause.
It is FURTHER ORDERED that pursuant to Rule 54(d)(2)(B) of the Federal Rules of Civil Procedure, that plaintiffs attorney is hereby GRANTED an extension of time in which to file a petition for authorization of attorney’s fees under 42 U.S.C. § 406(b) until thirty (30) days subsequent to the receipt of a notice of award of benefits from the Social Security Administration.
This order does not extend the time limits for filing a motion for attorney’s fees under the Equal Access to Justice Act.