The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole
MEMORANDUM OPINION AND ORDER
Daniel Masters seeks review of the final decision of the Commissioner of the Social Security Administration, denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 423(d)(2), and Supplemental Security Income ("SSI") under Title XVI of the Act, 42 U.S.C. §1382c(a)(3)(A). Mr. Masters asks the court to reverse the Commissioner's decision, while the Commissioner seeks an order affirming it. In the alternative, Mr. Masters asks that the case be remanded to the Commissioner.
I. THE PROCEDURAL HISTORY OF THE CASE
Mr. Masters applied for DIB and SSI on December 17, 2004, alleging that he had been disabled since March 6, 2001. (Administrative Record ("R.") 63). When his application was denied initially and upon reconsideration, Mr. Masters requested an administrative hearing. An Administrative Law Judge ("ALJ") convened a hearing at which Mr. Masters, represented by counsel, appeared and testified. (R. 532). On June 12, 2007, the ALJ found that Mr. Masters was not disabled because he had no exertional limitations, and his non-exertional limitations did not preclude him from performing his past work as a machine helper. (R 56-62). Mr. Masters filed a request for review, which the Appeals Council granted, remanding the case to the ALJ. The Appeals Council instructed the ALJ to assess Mr. Masters' work history because it appeared his machine helper job was not past relevant work, to take testimony from a vocational expert ("VE"), and, if Mr. Masters were found disabled, to consider whether drug addiction or alcoholism were involved. (R. 75-76).
The ALJ held a second hearing on April 29, 2008, at which Ed Pagella testified as a vocational expert, and Dr. Marva Dawkins testified as a medical expert. (R. 556-590). On November 17, 2008, the ALJ issued a second unfavorable decision in which she found that Mr. Masters was not disabled because he could perform jobs that exist in significant numbers in the national economy. (R. 18-29). This became the final decision of the Commissioner when the Appeals Council denied Mr. Masters' request for review on April 22, 2009. (R. 6-8). See 20 C.F.R. §§ 404.955; 404.981. Mr. Masters has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c).
The Vocational Evidence Mr. Masters was born on June 3, 1961, making him forty-seven years old at the time of the ALJ's decision. (R. 154). He has a high school education (R. 535) and work experience as a plumber and a carpenter. (R. 156-58, 585). Aside from a part-time stint as a machinist's assistant, he has not worked since 2001.
The Medical Evidence On June 20, 2001, Mr. Masters saw Dr. Kenneth Nash in Fort Collins, Colorado, complaining of several months of "lowered mood, energy, concentration, interest, enjoyment and feelings of hopelessness and despair." (R. 348). Mr. Masters said he also had some high-energy periods. (R. 348). He related his past treatment for alcoholism and a recent DUI, as well as the fact that he had been sober for several weeks. (R. 348). Dr. Nash diagnosed him with bipolar disorder and alcohol dependence and assigned a GAF "in the 50s." (R. 348).*fn1 The doctor gave Mr. Masters some samples of Depakote and referred him to an outpatient program. (R. 349).
Treatment notes through the beginning of August 2001 -- barely legible -- reveal Mr. Masters having some issues with anger, including a shouting match with his wife that led to the police being called. Depakote dosage was decreased, and Lamictal, a seizure medication -- was added to his regimen. (R. 352). By the end of August, Mr.Masters' anger was a lot better. His moods were improving through September, although he still had some episodes of depression. Improvement continued into October. (R. 351).
Things changed the following month. Although Dr. Nash felt his condition had been stable, on November 20, 2001, Mr. Masters reported he felt like his depression was returning. He said he had been sleeping 18-20 hours a day for a week. (R. 354). He had no suicidal thoughts. (R. 354). But by December 4th, Mr. Masters had not followed through with his treatment. (R. 354). On December 7th, his wife reported he was feeling suicidal. (R. 354). That same day, Mr. Masters was admitted to the local hospital with a history of depression and episodes of rage to the point of a minor assault on his wife with a TV remote control. (R. 231). His GAF upon admission was 35. (R. 232).*fn2 It was noted that he was on Depakote, Lithium, and Lamictal, and that he had abused drugs and alcohol until July 2001. (R. 231).
Mr. Masters participated in group therapy, slept well, and showed no manic symptoms. He and his wife had a couples session. During his hospitalization, he had no suicidal thoughts, but did get more depressed after his wife informed him she was leaving him. (R. 231). He managed to adjust to the idea and make positive future plans, including living with his family in Illinois, even though he described them as less than supportive. (R. 231, 234). Mr. Masters displayed a good memory and freedom from distractibility. He was diagnosed with a depressive disorder and alcohol dependence in partial remission and a GAF of 50. (R. 231-32).*fn3 He had no suicidal thoughts. (R. 232). He was discharged on December 13, 2001. (R. 231).
Mr. Masters continued with his treatment the following summer at the Larimer Center for Mental Health. On June 5, 2002, Mr. Masters was diagnosed with chronic low-grade depression and assigned a GAF of 51. (R. 245). His wife left him in October of 2002, and he moved in with a friend. (R. 265). In February and March of 2003, his mood was normal, and he was generally doing well. He had some difficulty sleeping.
(R. 272-73). In March he complained of being anxious, but his mood was fine and he had no manic symptoms. (R. 274). In April of 2003, his mood remained good. On April 3, 2003, Mr. Masters' mental status exam was normal -- normal mood, affect, concentration, attention, and judgment. (R. 260). The diagnosis this time was bipolar disorder with a secondary finding of attention deficit hyperactivity disorder, despite the mental status findings. (R. 261). GAF was 61. (R. 261).*fn4 On June 3, 2003, his mental status exam was essentially within normal limits, including mood and affect. (R. 253). Mr. Masters' attention, concentration, judgment, and memory were all normal. (R. 253). The primary diagnosis was attention deficit disorder, with a secondary diagnosis of dysthymic disorder, with a GAF of 61. (R. 255).
He was jailed briefly in March 2004 when he failed to make a court date. (R. 268). He also started a construction job around that time. (R. 268). His mood was normal, and he had "no thoughts of harm." (R. 268). In April 2004, Mr. Masters reported that his medications were working well. His mood was normal -- he was experiencing no mood swings. (R. 269). On June 5, 2004, he was diagnosed with bipolar disorder with a secondary diagnosis of attention deficit/hyperactivity, and was assigned a GAF of 63. (R. 240). He was stable on his medications as of June 28, 2004. (R. 270).
On September 5, 2004, Mr. Masters was hospitalized with sudden onset of "grand mal" seizures in connection with alcohol withdrawal. (R. 292). He had been incarcerated for about 40 days in July and August. (R. 297). He was treated with Dilantin and, upon discharge, there were no restrictions on his activities. (R. 292). On December 14, 2004, Mr. Masters was diagnosed with depression and alcohol dependence. (R. at 322). In the interim, he had moved to Illinois to live with his parents. (R. 334). At that time, Mr. Masters said he had been having 15-20 drinks daily for a period of 6-12 months that ended three months earlier. (R. 332). It was also noted that he had withdrawn from social interactions but, at the same time, that he did "well socializing with others." (R. 334). He said he had done well in social situations in Colorado, but had developed no close relationships yet in Illinois. (R. 335).
On January 5, 2005, Mr. Masters went to Dr. Dan Gauthier for a checkup and said he didn't feel his Welbutrin was effective anymore. He had been off medication for at least two or three days and reported being more depressed. The doctor took him off Welbutrin and put him on Effexor. (R. 342-43).
On April 11, 2005, Mr. Masters had a consultative psychiatric examination with Dr. Michael Fernando, a psychiatrist, in conjunction with his claim for disability benefits. Mr. Masters described his mood as "okay." He reported to Dr. Fernando that he had been incarcerated for domestic violence on three separate occasions and that in the remote past he had used cannabis and cocaine. (R.360). Dr. Fernando noted that his facial expressions were tense at times. (R. 361). Attention, concentration, and memory were all intact, and Mr. Masters was rational, coherent, attentive and not distractible. (R. 361). Dr. Fernando found no evidence of major depression or mania "that could explain his current difficulties." (R. 362).
Mr. Masters "report[ed] significant relief of symptoms by his prescribed psychotropic regimen," which had included Ritalin, Zoloft, and Effexor. (R. 359). He told Dr. Fernando that he had been unable to maintain employment since 2001 because of depression. He said that on most days he felt anxious and that he feels overwhelmed when he has to do something. He said his concentration "isn't good," and that he has a hard time "staying focused." (R. 359). He denied feelings of hopelessness, guilt, restlessness, excessive worry, decreased need for sleep and fatigability. (R. 359). Mr. Masters said that he was receiving "group counseling." (R. 360).
Dr. Fernando concluded, based on Mr. Masters' clinical presentation, mental status examination, and available histories, that Mr. Masters' difficulties appear to be consistent with an Axis II disorder. There was no evidence, he found, of major depression, which could explain his current difficulties. (R. 362). Dr. Fernando noted that during the evaluation Mr. Masters "seemed capable of maintaining concentration, forming a stream of ideas and exercising memory function which would correlate with an ability to maintain social contact with others in a basic work setting." (R. 362).*fn5 He diagnosed mood disorder and avoidant personality traits. (R. 362).
On April 15, 2005, Dr. David Brister, a psychologist, reviewed the record and prepared a Mental Residual Functional Capacity Assessment. (R. 364). He felt that Mr. Masters was moderately limited in the areas of ability to understand and remember detailed instructions, the ability to carry out detailed instructions, the ability to accept instructions and respond appropriately to criticism from supervisors. (R. 364-65). He concluded that Mr. Masters "should be able to maintain concentration to do simple tasks." (R. 366).
On July 20, 2005, while his application for benefits was pending with the Social Security Administration, Mr. Masters saw Dr. Steven Prinz. His one-and-a-half-page treatment note stated that Mr. Masters was seeking "treatment of his moods." There was no claim of sleeping during the day, and Mr. Masters admitted that he had not been consistent in taking the various medicines that had been prescribed for him. (R.397).
Dr. Prinz described Mr. Masters as alert, oriented to person, place, time and situation and having appropriately-related affect. He observed no homicidal or suicidal ideation. Dr. Prinz noted that Mr. Masters' mood was sad, that he could recall two of three words after five minutes, and that his concentration was fair. (R. 397). Mr. Masters was without any active psychotic symptomatology. Dr. Prinz diagnosed major depression, generalized anxiety disorder, ADHD, and history of alcohol abuse. He advised that Mr. Masters follow up with an internist and with him in the next month. (R. 397-398).
On December 13, 2005, Dr. Prinz filled out a form captioned, "Mental Disorders Report," that Mr. Masters' counsel prepared and provided.*fn6 According to the form, Dr. Prinz had seen Mr. Masters on October 17, 2005. (R. 393). However, there is no treatment note for that meeting. In the December 13th form, Dr. Prinz diagnosed Mr. Masters with "296.3, GAD, ADHD, past ETOH [alcohol] abuse." (R. 397). He noted Mr. Masters was being treated with Zoloft and therapy. (R. 397). In the section that asked whether there were certain triggers that caused Mr. Masters' symptoms, Dr. Prinz checked literally every box, including "dealing with family," (R. 397), even though on the next page he checked the "yes" box that said that Mr. Masters was living in a highly supportive and protective setting which alleviates his symptoms. (R. 394).
Dr. Prinz said that Mr. Masters' depression and anxiety made it difficult for him to experience new things and decreased his ability to concentrate on tasks. Although the form asked for an explanation, Dr. Prinz did not provide one; he merely reiterated that Mr. Masters' illness impacted his ability to concentrate. (R. 393-396). He checked "no" to the question of whether Mr. Masters was able to function in a "competitive work setting (not a sheltered workshop position) on an eight hour per day, five days per week basis." (R. 394)(Emphasis supplied)(parenthesis in original). No question was asked about capacity to work in a less stressful, less demanding, basic work setting, involving simple tasks. (R. 362). Dr. Prinz checked the box "no" that asked whether Mr. Masters' medications caused side effects. (R. 394). When asked whether there were other conditions that affected Mr. Masters' ability to function, the doctor answered, curiously, "at above." (R. 394).
Dr. Prinz also filled out a check list that Mr. Masters' attorney provided, which referred to "SSA's Regulations" and asked which symptoms the doctor "ha[d] noticed during [his] treatment." (R. 396)(Emphasis supplied). Dr. Prinz, who had seen Mr. Masters on two occasions, checked sleep disturbance, decreased energy, difficulty concentrating, appetite disturbance, psychomotor retardation, feelings of guilt. (R. 396). Under functional limitations, he appeared to check either "marked difficulties in maintaining concentration" and "repeated episodes of decompensation" -- or those two along with "marked difficulties in social functioning." (R. 396).
Mr. Masters saw Dr. Prinz one more time in November of 2007. Mr. Masters reported that he was struggling with moods, energy, and concentration. (R. 526). Dr. Prinz noted his mood was sad, judgment and insight fair, and thought processes coherent and logical. (R. 526). Mr. Masters had apparently been off medications for some time, and expressed the desire to go back on medication, and the doctor placed him on Zoloft. (R. 526).
C.The Administrative Hearing Testimony
Mr. Masters' Testimony At the hearing, Mr. Masters testified that he was divorced and lived with his parents. (R. 559-60). He said he had lost 10 pounds over the last year, due to a lack of appetite. (R. 559). He said he didn't sleep well at night -- he "toss[ed] and turn[ed] once in a while" -- and generally took an hour and a half nap during the day. (R. 562). He claimed that he had trouble remaining focused "on any one task at one time for too long," saying that he couldn't even vacuum for more than about fifteen minutes. (R. 563). He cooked for himself, did his own laundry, and did some mowing in the summer. (R. 563). He went fishing a couple times each month in good weather. (R. 563).
Under questioning by Dr. Dawkins about his daily activities, Mr. Masters said, "I don't do a whole lot." (R.566). Later, he said that he got tired very easily, but didn't know why, because he didn't do much. He first said he watches "a lot of TV," but then said "not a whole lot, I get tired real easy." (R. 568). He was able to drive, but his license was revoked (R. 569), so his mother drove him where he needed to go. (R. 571). Mr. Masters said he socialized with his family and went to AA meetings twice a week. (R. 564). He has not had a drink since December 2007 -- the hearing was in April 2008 -- when his father passed away. (R. 564).
He last saw a mental health professional in November 2007, when he went to Dr. Prinz. (R. 565). Mr. Masters said he saw Dr. Prinz on just that one occasion, when the doctor gave him Zoloft. (R. 565). He quit taking it "after a few months because it wasn't doing anything," and it was too expensive. (R. 565). Dr. Dawkins expressed some confusion about the reasons for the cessation of medicine a few months after seeing Dr. Prinz in December 2005, and pointedly asked: "Well, now, now I'm confused here. So you stopped, you stopped the medicine because you couldn't afford it or you stopped the medicine because it wasn't helping?" Mr. Masters responded: "It wasn't helping at all and I've taken numerous depression medications and nothing seems to be working or has worked in the past." (R. 573). This assertion was contrary to numerous statements by Mr. Masters to various doctors as reflected in the medical records, that his medicines were helpful when he took them.*fn7
There then occurred this question by Mr. Masters' counsel, which was at once leading and distorted Mr. Masters' answer: "And just one other item to clear up Dr. Dawkins' confusion. It seems like you -- is it fair to say that you stopped taking the medications for two reasons. Because you couldn't afford them and because they didn't help you out much?" To which Mr. Masters responded: "Yeah, I would say that. Yeah."
(R. 574-575). Nothing in any medical records or the notes of the weekly group therapy sessions Mr. Masters regularly attended (R. 503-521; 568) supported cost as playing any role in Mr. Masters' intermittent compliance with the prescribed medical regimen.
When he first moved in with his parents, he worked for perhaps 8 months in 2005 and 2006 in production work, which was exceedingly demanding and involved production quotas, which he found overwhelming. He couldn't handle the stress and had a hard time staying focused. (R. 567, 571). Since then he has tried to look for work, but said he did not have any motivation. (R. 567, 570).
The Medical Expert's Testimony Dr. Marva Dawkins recounted the varying diagnoses in the record -- depression, bipolar disorder, ADHD by history, and history of alcohol abuse. She opined that, based on the evidence, Mr. Masters more likely suffered from depression rather than bipolar disorder. (R. 578). She thought his condition was severe, but that it did not meet the Listings. (R. 579). She went on to say that Mr. Masters didn't give a very good description of his daily activities, but she couldn't imagine he was just "sleeping all day." (R. 579). His social functioning appeared to be mildly impaired -- he could interact appropriately with others -- and his concentration moderately impaired. (R. 579). Contrary to Dr. Prinz's unexplained entry (checkmark) on the December 2005 form, see supra at 8, she said there was no evidence in the medical records of recent decompensation. (R. 579-80).
Dr. Dawkins concluded that Mr. Masters could perform simple, unskilled work where rate of production was not a factor. (R. 580). She disagreed with Dr. Prinz that Mr. Masters could not sustain focus on a job, because the context was the production job that Mr. Masters had where he had to maintain a quota and he was involved in work that requires meticulous measurements on "little tiny ...