Opposition Brief — Marcum v. Apfel

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2) { ‘SEP - 5 2000

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No>00-29

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In the Supreme Court of the Bnited States

DONALD MARCUM, PETITIONER

Vv.

KENNETH S. APFEL,

COMMISSIONER OF SOCIAL SECURITY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

DAVID W. OGDEN

Assistant Attorney General

FREDDI LIPSTEIN

MARK S. DAVIES

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly held that an

administrative law judge was not required to consult

with a mental health expert before finding petitioner

not disabled.

(I)

TABLE OF CONTENTS

Opinions below

Jurisdiction

Statement

Argument

Conclusion

TABLE OF AUTHORITIES

Cases:

Andrade v. Secretary of HHS, 985 F.2d 1045

(10th Cir. 1993)

Davis v. United States, 417 U.S. 333 (1974)

DeVoll v. Commissioner, No. 95-1166, 1996 WL

560424 (6th Cir. Oct. 1, 1996)

Foster v. Bowen; 853 F.2d 483 (6th Cir. 1988) .............000+

Montgomery v. Shalala, 30 F.3d 98 (8th Cir.

1994)

Moon v. Sullivan, 923 F.2d 1175 (6th Cir. 1990) ..............

Owen v. Chater, No. 96-5571, 1997 WL 251918

(6th Cir. May 13, 1997)

Plummer v. Apfel, 186 F.3d 422 (8d Cir. 1999) ...........000

Sims v. Apfel, 120S. Ct. 2080 (2000)

Stambaugh v. Sullivan, 929 F.2d 292 (7th Cir.

1991)

Sullivan v. Zebley, 493 U.S. 521 (1990)

Wisniewski v. United States, 353 U.S. 901 (1957) ...........

Statutes, regulations and rule:

Social Security Act, Tit. II, 42 U.S.C. 401 et seq. ...........000

42 US.C. 401-433

42 U.S.C. 405(a)

42 U.S.C. 405(b)

42 US.C. 405(g)

42 U.S.C. 421(a)

(IIT)

oo ©

Statutes, regulations and rule—Continued:

42 U.S.C. 421(d)

42 U.S.C. 421(h)

42 U.S.C. 423(d)(1)(A)

20 C.F.R.:

Pt. 404:

Section

Sections 404.907-404.922

Sections 404.929-404.961

Sections 404.966-404.982

Section

Sections 404.1520-404.1576

Section

Section

Section

Section

Section

Subpt. P, App. 1, Sec. 12.00(B)

Pt. 422:

Section

Sup. Ct. R. 14.1(a)

IV

404.904

404.1503

404.1520a(d)

404.1520a(d)(1)

404.1520a(d)(1)(i)

404.1520a(d)(1)(ii)

404.1520a(d)(1)(iii)

422.210(a)

ad ad

ARWWAWNNNNWN ND

~1 fo

In the Supreme Court of the Anited States

No. 00-29

DONALD MARCUM, PETITIONER

Vv.

KENNETH S. APFEL,

COMMISSIONER OF SOCIAL SECURITY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

‘FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-14)

is unpublished, but the decision is noted at 205 F.3d

1341 (Table). The memorandum opinion, order and

judgment of the district court (Pet. App. 36-45) are

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

January 18, 2000. The petition for rehearing was

denied on April 6, 2000 (Pet. App. 46). The petition

for a writ of certiorari was filed on July 5, 2000. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

STATEMENT

1. Title II of the Social Security Act (the Act), 42

U.S.C. 401 et seq., provides monthly benefits to disabled

persons who have contributed to the program. 42

U.S.C. 401-433. The Act defines a “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 be expected to last for

a continuous period of not less than 12 months.” 42

U.S.C. 423(d)(1)(A). The Act authorizes the Commis-

sioner of Social Security to promulgate regulations

for determining eligibility under the program and for

the procedural mechanisms for adjudicating disability

claims. 42 U.S.C. 405(a).

a. The initial determination of eligibility is made by

a state agency. 42 U.S.C. 421(a); 20 C.F.R. 404.1503.

The state agency conducts a five-step evaluation pro-

cess. 20 C.F.R. 404.1520-404.1576; Sullivan v. Zebley,

493 U.S. 521, 525-526 (1990). If the state agency con-

cludes that the applicant is not disabled, the claimant

may request a de novo reconsideration by the state

agency. 20 C.F.R. 404.904, 404.907-404.922.

If the claim is denied after reconsideration, the

claimant is entitled to a hearing before an administra-

tive law judge (ALJ) within the Social Security Admini-

stration (SSA). 42 U.S.C. 405(b); 20 C.F.R. 404.929-

404.961. If the ALJ denies the claim, the claimant may

ask the SSA’s Appeals Council for review. 20 C.F.R.

404.966-404.982. If the Appeals Council denies review,

the ALJ decision becomes the final decision of the SSA.

20 C.F.R. 422.210(a). The claimant may then obtain

judicial review of the ALJ’s decision. 42 U.S.C. 405(g).

3

b. When a claimant avers a mental impairment, the

state agency or ALJ evaluating the claim must com-

plete a Psychiatric Review Technique Form (PRTF).

20 C.F .R. 404.1520a(d). Section 421(h) provides:

An initial determination [made by a state agency], in

any case where there is evidence which indicates the

_ existence of a mental impairment, shall be made

only if the Commissioner of Social Security has

made every reasonable effort to ensure that a

qualified psychiatrist or psychologist has completed

the medical portion of the case review and any

applicable residual functional capacity assessment.

42 U.S.C. 421(h); see also 20 C.F.R. 404.1520a(d)(1)

(“{a]t the initial and reconsideration levels the [PRTF]

must be completed and signed by [the state] medical

consultant”). For disability determinations made by

the ALJ, the regulations provide that the ALJ “may

complete the [PRTF'] without the assistance of a medi-

cal advisor” or “may call a medical advisor for assis-

tance in preparing the document.” 20 €.F.R.

404.1520a(d)(1)G) and (ii). The regulations further

provide that, if “the issue of a mental impairment arises

for the first time at the administrative law judge

hearing level, the [ALJ] may decide to remand the case

to the State agency for completion of the document and

a new determination.” 20 C.F.R. 404.1520a(d)(1)(iii).

2. Petitioner was 31 years old in 1993 when he sus-

tained a back injury while working as a mechanic. Pet.

App. 2. His injuries required surgical treatment, after

which he received pain medication and physical ther-

apy. Ibid. Since the accident, petitioner has seen

several doctors, all of whom treated him for recurring

back pain and numbness. Id. at 3-4. Petitioner also

sought treatment for non-restorative sleep, for which

4

he began taking the prescription drug Amitriptyline.

Id. at 4-5.

In December 1998, petitioner applied for disability

benefits due to musculoskeletal problems. Pet. App. 41.

He did not allege a mental disability. /d. at 7. The

state agency denied petitioner’s application for dis-

ability benefits. Jd. at 5. Following a hearing, the ALJ

on March 27, 1997, found that petitioner was not

entitled to disability benefits because there were a sig-

nificant number of jobs in the national economy peti-

tioner could perform given his residual functional

capacity. Jd. at 18-29. On January 27, 1998, the

Appeals Council denied review. Jd. at 32-34.

3. The district court affirmed the Cosuiinkioner’ ~

decision. Pet. App. 36-45.

4. The court of appeals affirmed in an unpublished

per curiam decision. Pet. App. 1-14. The court rejected

petitioner’s argument that the ALJ erred by failing to

have petitioner evaluated by a qualified mental health

expert. The court observed that it had “recently left

unanswered the question of whether an ALJ, con-

fronted with a claim of a mental impairment raised for

the first time at the hearing, has an obligation to

consult with mental health experts before completing

the PRTF.” Jd. at 8. The court further noted that “any

such obligation would arise only ‘if the claimant brings

forth sufficient evidence to raise an inference that he

suffers from a mental impairment.’” I[bid. (citing Owen

v. Chater, No. 96-5571, 1997 WL 251918, at *4 (6th Cir.

May 13, 1997) (per curiam)). The court concluded, how-

ever, that in this case “there was not sufficient evidence

in the record to raise an inference that [petitioner]

suffered from a mental impairment.” Id. at *9. The

5

court accordingly affirmed the Commissioner’s de-

cision.’

ARGUMENT

1. Petitioner renews his contention (Pet. 7-12) that

the ALJ should have sought a medical expert to

evaluate petitioner’s mental condition. Nothing in the

statute or regulations, however, requires an ALJ to

consult with a medical expert whenever a claimant

alleges a disability based on a mental impairment. By

its plain terms, 42 U.S.C. 421(h), which requires a

mental health expert to review the evidence and assess

a claimant’s residual functional capacity, applies to

decisions made by state agencies under 42 U.S.C.

421(a), and does not apply to decisions made by the ALJ

under 42 U.S.C. 421(d).* Thus, Section 421(h) states in

full:

An initial determination under subsection (a), (c),

(g), or (i) of this section that an individual is not

under a disability, in any case where there is evi-

dence which indicates the existence of a mental

impairment, shall be made only if the Commissioner

of Social Security has made every reasonable effort

to ensure that a qualified psychiatrist or psycholo-

1 The court of appeals also rejected petitioner’s contentions

that the ALJ failed to find that petitioner’s physical condition did

not meet a listed impairment, Pet. App. 10-11; that the ALJ

improperly rejected his complaints of pain, id. at 11-12; that the

ALJ posed an inaccurate hypothetical question to the vocational

expert, id. at 13; and that the ALJ improperly assessed his residual

functional capacity, id. at 13-14. Petitioner does not challenge

those rulings before this Court.

2 Because petitioner did not allege a mental impairment when

he applied for disability benefits, 42 U.S.C. 421(h) imposed no obli-

gation on the state agency.

6

gist has completed the medical portion of the case

review and any applicable residual functional capac-

ity assessment.

42 U.S.C. 421(h); accord 20 C.F.R. 404.1520a(d)(1) (“Lat

the initial and reconsideration levels the [PRTF'] must

be completed and signed by [the state] medical con-

sultant”); see also Plummer v. Apfel, 186 F.3d 422,

433 (8d Cir. 1999) (“Because 42 U.S.C. § 421(d), which

covers hearings before an ALJ, is excluded from

§ 421(h)’s purview, an ALJ is not required to employ

the assistance of a qualified psychiatrist or psychologist

in making an initial determination of mental impair-

ment.”). Moreover, the Commissioner’s regulations

provide that if “the issue of a mental impairment arises

for the first time at the [ALJ] hearing leve!, the [ALJ]

may decide to remand the case to the State agency for

completion of the document and a new determination.”

20 C.F.R. 404.1520a(d)(1)(iii) (emphasis added). Thus,

the regulations imposed no duty on the ALJ to refer

petitioner to a mental health expert.

In any event, Section 421(h) applies only “where

there is evidence which indicates the existence of a

mental impairment.” 42 U.S.C. 421(h). Here, the court

of appeals concluded that petitioner did not present

sufficient evidence to indicate that he suffered a mental

impairment. Pet. App. 9. As the ALJ explained (id. at

24), although petitioner at the hearing “complained of

depression,” petitioner had no “history of psychiatric

hospitalization, ha[d] not reported receiving any coun-

seling, and ha[d] not reported taking related medi-

cines.” Indeed, the only evidence of petitioner’s alleged

depression consists of a statement petitioner made to

his orthopedic specialist that he was feeling depressed

nero nee

7

(Pet. 10) and a brief statement at the hearing before the

ALJ that he “stay[s] depressed a lot.” Pet. App. 8.

Morecver, the fact that petitioner was taking Ami-

triptyline for his “nerves” or to help him sleep (Pet. 10)

is not sufficient to establish that petitioner was suffer-

ing from a disabling mental impairment.’

The Commissioner’s regulations provide that, when a

claimant alleges a disability due to a mental condition,

“(t]he existence of a medically determinable impair-

ment of the required duration must be established by

medical evidence consisting of clinical signs, symptoms

and/or laboratory or psychological test findings.” 20

C.F.R. Pt. 404, Subpt. P, App. 1, Sec. 12.00(B); Moon v.

Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990) (A

claimant alleging a mental impairment must “establish

that a mental disorder reaches the level of severity to

be considered disabling.”); Foster v. Bowen, 853 F.2d

3 The court of appeals stated (Pet. App. 9 n.2) that it declined to

address petitioner’s argument that his sleep disorder is a mental

impairment because petitioner had not alleged that he suffered

from that type of mental impairment at the administrative level.

In Sims v. Apfel, 120 S. Ct. 2080, 2086 (2000), this Court held that a

social security claimant who has exhausted his administrative

remedies “need not also exhaust issues in a request for review by

the Appeals Council in order to preserve judicial review of those

issues.” Petitioner does not contend, however, that the court of

appeals’ failure to address his claim of sleep disorder was error

under Sims. Nor is the Question Presented in the petition (Pet. i)

suggestive of any such claim. See Sup. Ct. R. 14.1(a). In any

event, the court of appeals stated that it would not be “inclined to

require consultation whenever a claimant reported problems sleep-

ing” and that petitioner’s “argument presents a speculative claim

of mental impairment.” Pet. App. 9n.2. Moreover, as explained in

the text, evidence that petitioner had difficulty sleeping in itself

does not establish that petitioner suffered a mental impairment

that rendered him disabled.

8

483, 488 (6th Cir. 1988) (finding no evidence the

claimant was disabled because of a mental condition

where physician prescribed Valium for claimant’s

nerves and nothing in physician’s records suggested

claimant was disabled because of a mental condition).

Here, petitioner “had no history of psychiatric

hospitalization, counseling, or psychiatric medication.”

Pet. App. 7. The court of appeals therefore correctly

concluded (id. at 9) that “there was not sufficient

evidence -in the record to raise an inference that

[petitioner] suffered from a mental impairment.” That

factbound determination, which appears-in an

unpublished opinion, plainly does not warrant this

Court’s review.

2. Petitioner also argues (Pet. 12-14) that this

Court’s review is warranted to resolve a conflict among

the courts of appeals. That is incorrect.

The decision below assumed (Pet. App. 8) that, under

the court of appeals” own previous decision in Owen v.

Chater, supra, at *4, the ALJ would have been required

by Section 421(h) and the Commissioner’s regulations

to consult with a mental health expert had petitioner

presented sufficient evidence of a mental impairment.

Indeed, petitioner concedes (Pet. 8-9) that the Sixth

Circuit’s decision in Owen comports with the decisions

of other courts of appeals. Thus, petitioner does not

quarrel with the legal standard applied by the decision

below, but instead contends (Pet. 13) that other courts

of appeals would have concluded that on the facts of this

case petitioner had presented sufficient evidence of a

mental impairment to trigger the ALJ’s duty to consult

with a mental health expert. That factbound assertion

does not warrant this Court’s review.

Se ee

9

In any event, the court of appeals correctly found

that the decisions upon which petitioner relies (Pet. 12-

13) are “distinguishable because they involved signifi-

cant evidence” of a mental impairment. Pet. App. 9.

Thus, in Montgomery v. Shalala, 30 F.3d 98, 100 (8th

Cir. 1994), the claimant had a decade-long history of

depression, was treated for depression, and had

attempted suicide. Similarly, in Andrade v. Secretary

of HHS, 985 F.2d 1045, 1048 (10th Cir. 1993), the

claimant’s physician, who had treated the claimant for

depression and suicidal thoughts, had found that the

claimant was “totally mentally disabled.” And finally,

in Stambaugh v. Sullivan, 929 F.2d 292, 294-295 (7th

Cir. 1991), the claimant had a history of alcohol abuse

and committed suicide shortly after the ALJ’s decision.

Thus, there is no basis for concluding that those courts

of appeals would have held that petitioner here

presented sufficient evidence that he suffered from a

mental impairment.’

4 Petitioner also errs in contending (Pet. 11-12) that the Sixth

Circuit’s decision conflicts with its earlier unpublished decision in

DeVoll v. Commissioner, No. 95-1166, 1996 WL 560424 (Oct. 1,

1996). In contrast to the present case, the claimant in DeVoll

“entertained thoughts of, and once attempted, suicide,” id. at *1; a

physician had prescribed therapy and antidepressants, id. at *3;

and a psychologist had concluded that the claimant “needed two to

five years of psychological intervention,” id. at *1. In any event, an

intra-circuit conflict would not warrant this Court’s review. See

Davis v. United States, 417 U.S. 338, 340 (1974); Wisniewski v.

United States, 353 U.S. 901, 902 (1957) (per curiam).

al

10

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

DAVID W. OGDEN

Assistant Attorney General

FREDDI LIPSTEIN

MARK S. DAVIES

Attorneys -

SEPTEMBER 2000