The opinion of the court was delivered by: MILTON I. SHADUR
MEMORANDUM OPINION AND ORDER
This Court's March 19, 1993 memorandum opinion and order (the "Opinion") remanded this action to Secretary of Health and Human Services Donna Shalala ("Secretary") for the taking of additional evidence. Secretary has now filed a timely motion and supporting memorandum to alter or amend that judgment under Fed. R. Civ. P. ("Rule") 59(e).
For the reasons stated here, that motion is granted in part and denied in part.
Secretary disputes one substantive and two procedural aspects of the Opinion. As to the matter of substance, Secretary is simply wrong, while her complaints on procedural issues are well founded.
In substantive terms, Secretary incorrectly argues that the ALJ's completion of a PRTF satisfies the requirements for evaluation of a mental impairment. But as Opinion at 16-18 points out, what poses the problem here is not the failure to fill out such a report, but rather the lack of professional support for the ALJ's evaluation that was reflected in that report.
Secretary seeks to bootstrap herself by pointing to two other PRTFs by psychologist Stephen Vincent ("Vincent"), one dated February 16, 1988 (R. 62-70) and the other dated April 20, 1988 (R. 80-88). But the problem in that respect is that ALJ Mondi's report says not a word about those PRTFs in his detailed Evaluation of the Evidence (R. 180-83). Here is the totality of what the ALJ said about the issues related to Haddon's drug and related mental problems (R. 181, 182):
Extensive outpatient notes from the Veterans Administration between October 19, 1987, and April 7, 1989, document that the claimant sought treatment on October 19, 1987, for a drug abuse problem, including a heroin addiction. Eventually, he began taking methadone. While urine testing showed the presence of drugs occasionally, later testing, particularly those from 1989, document that the claimant had curtailed drug usage. The claimant frequently reported to his counselor at the Veterans Administration that he was seeking employment. Significantly, however the entry dated March 7, 1989, reveals that the claimant was selling illegal drugs. Apparently, he was actively involved in that occupation, and had a supply network with distributors who worked with him. The claimant justified this activity as necessary to make ends meet (Exhibit 24).
The record fails to establish that the claimant has an impairment or combination of impairments that meets or equals any section of the listing of impairments. I have evaluated, in particular, his alleged mental disorder. I note that his substance addiction disorder appears to be in remission (Exhibit 24). I find that he does suffer symptoms of an affective disorder, and meets the "A" criteria in section 12.04 of the medical listing of impairments, but has not manifested the required degree of functional limitation to meet the requirements of the "B" criteria for that listing.
With respect to the claimant's history of drug abuse, I note that he has apparently been drug free for some time. Furthermore, his past depression and anxiety appear to be more situational than related to any severely debilitating on-going mental impairment. I note that the claimant's activity of selling drugs may not actually be substantial gainful activity, but it does establish that he has the memory, and organizational and social skills consistent, at the very least, with the ability to meet the demands of unskilled work. The claimant's testimony was less than fully credible: he tended to exaggerate his physical complaints and made inconsistent or false statements as to looking for work and his drug usage (see Exhibit 24 note of January 15, 1988).
It is, of course, an ALJ's duty to make the bases for his or her opinion plain to enable effective review by a district court. Although the quoted language refers to evidence relied on by the ALJ (Exhibit 24, comprising the VA outpatient notes), no reliance whatever was placed on Vincent's reports.
It simply will not do for Secretary to pull matters out of the record as purported support for the ALJ's decision where--as in this case--the ALJ himself has not stated any reliance on such matters. Accordingly, this Court remains of the view that a remand is not only appropriate but necessary to assure a full and fair hearing and a fair result on Haddon's claim.
As for the first of Secretary's procedural contentions, this Court directed reassignment of the case to a different ALJ on the remand. That was a reflection of this Court's view that many of ALJ Mondi's findings, though this Court upheld them based on the generous standard of review that is accorded to an ALJ's decisions, were troublesome enough to pose a serious risk of prejudgment of the result on review. Although that concern remains, our Court of Appeals has recently announced a more restrictive review of such directives for reassignment in Travis v. Sullivan, No. 91-3933, 1993 WL 30942, at *5 (7th Cir. Feb. 10).
Accordingly this Court will not order assignment to a different ALJ. Instead this Court (taking a leaf from Travis, id.) "strongly urges" that Secretary do so.
Finally, Secretary urges that the remand should be viewed as a "sentence four" rather than "sentence six" remand (see Melkonyan v. Sullivan, 115 L. Ed. 2d 78, 111 S. Ct. 2157, 2163-64 (1991)). That distinction has been one of the more vexing problems in this area of law, clearly calling for clarification and correction by Congress. But because the statutory language (which may literally be read to encompass what this Court has ordered here) has had a more restrictive gloss placed ...