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finding ALJ's failure to mention GAF score not reversible error
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No. SA-01-CA-0958 FB (NN)
October 2, 2002
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
TO: Hon. Fred Biery, United States District Judge.
I. Introduction
This is an action to review a decision of the defendant, the Commissioner of the Social Security Administration, pursuant to the Social Security Act ("the Act"), 42 U.S.C. § 405(g) and 1383(c)(3). Plaintiff/Claimant, Rita P. Alvarez, instituted this action pursuant to 42 U.S.C. § 405(g), seeking reversal of the Commissioner's final decision that she is not disabled and therefore, not entitled to receive disability benefits.
Docket Entry 7.
Through her motion for summary judgment and supporting memorandum, plaintiff argues that the Administrative Law Judge ("ALJ") erroneously determined that her multiple physical impairments, as well as her depression and anxiety disorders, were not disabling enough to preclude her from performing her past relevant work as a quality auditor for a clothing manufacturer and as a cashier/checker at a grocery store. The main issue presented in this appeal is whether substantial evidence and relevant legal standards support the Commissioner's decision that plaintiff was not disabled from December 31, 1996, her alleged onset date of disability, though June 25, 1999, the date of the ALJ's decision.
Having considered plaintiff's motion for summary judgment, the defendant's brief in support of the Commissioner's decision, the plaintiff's reply brief, the transcript of the Social Security Administration proceedings, the pleadings on file, the applicable case authority and relevant statutory and regulatory provisions, as well as the entire record in this matter, it is my recommendation that plaintiff's motion for summary judgment should be DENIED and this case should be DISMISSED . While plaintiff has asserted five grounds of error for challenging the ALJ's decision, namely, that the ALJ failed to propound a hypothetical to the vocational expert that reasonably incorporated all her limitations, that the ALJ failed to consider the opinions of the non-examining psychiatrist, that the ALJ erred in according inadequate weight to the opinion of the examining physician, that the ALJ failed to consider all of the plaintiff's impairments, specifically her arthritis, in assessing her residual functional capacity ("RFC"), and that the ALJ applied an incorrect standard in denying plaintiff's claim for benefits, none of these alleged errors, in my opinion, is supported by the record. Indeed, contrary to plaintiff's arguments, the ALJ's finding of no disability, as discussed more fully below, is supported by substantial evidence and comports with the applicable legal standards.
I have jurisdiction to enter this Report and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
The docket sheet of this case indicates that an order of referral was entered on October 18, 2001.
II. Jurisdiction
The court has jurisdiction under 42 U.S.C. § 405(g) and § 1383(c)(3).III. Administrative Proceedings
According to the record in this case, plaintiff fully exhausted her administrative remedies before filing this action in federal court. Plaintiff filed her applications for Title II Disability Insurance Benefits ("DIB") and Title XVI Supplemental Security Income benefits ("SSI") on December 1, 1997, alleging disability beginning on December 31, 1996. Her applications were initially denied on February 25, 1998, and again on reconsideration on July 30, 1998. Plaintiff proceeded to the next step of the administrative process by requesting a hearing before an ALJ. The hearing took place on May 20, 1999 and plaintiff appeared represented by counsel. In addition to plaintiff's testimony, the ALJ also heard the testimony of a medical expert as well as that of a vocational expert.
Administrative Transcript ("Transcript"), at 45. The date she was last insured for DIB purposes was December 31, 1997. Id.
Transcript, at 20-21, 29.
Id . at 42. It should be noted that at the time of the hearing, plaintiff was fifty-three years old. Although she only completed the ninth grade of high school, she subsequently obtained her GED. She had received vocational training as a medical assistant and worked in that capacity at a doctor's office for a period of a year. Her other past relevant work has consisted of working as a sewing machine operator at a hat company, as a quality auditor at a clothing manufacturing facility, and as a checker /cashier at a grocery store. Id . at 60, 66, 470-71.
Id. at 488-503.
The ALJ rendered her written decision on June 25, 1999, finding that the plaintiff was not a disabled individual as defined by the Act. Specifically, the ALJ found that plaintiff has the "severe" impairments of depression, anxiety disorder, status post carpal tunnel syndrome with right carpal tunnel DeQuervain's release, asthmatic bronchitis by history, degenerative joint disease, and angina, but that these impairments singly or in combination, did not meet or equal the severity of a listed impairment. The ALJ found that plaintiff retained the RFC to perform work which requires light exertion, that is lifting ten pounds frequently and twenty pounds occasionally. The ALJ further found some restrictions in plaintiff's ability to perform light work. That is, the ALJ determined that plaintiff was restricted to those jobs that did not require repetitive fine manipulation of the right hand or any overhead lifting or reaching with the right arm.
Id. at 11-18.
Id. at 17, Finding No. 3.
Id. at Finding No. 4.
In terms of her mental or non-exertional abilities, the ALJ found that plaintiff had a "good" ability to understand, remember, and carry out simple job instructions, a "fair" ability to maintain attention/concentration, interact with the public, respond appropriately to changes in the work setting, and understand, remember, and carry out detailed job instructions, and a "poor" ability to understand, remember, and carry out complex job instructions. Regarding plaintiff's mental capacity, the ALJ also considered the last report made part of the record rendered in December of 1998 by her treating psychiatrist in which he described plaintiff's depression and anxiety disorders as "mild." The ALJ then determined that plaintiff's impairments did not prevent her from performing her past relevant work as an auditor/quality inspector, or as a cashier/checker (using a scanner), both of which were semi-skilled in nature and required a light level of physical exertion.
Id.
Presumably, after various adjustments to her medication therapy, her psychiatrist was able to effectively control plaintiff's depression and anxiety disorders. Id. at 480-81.
Id. at 18, Finding No. 6.
Following the ALJ's finding of no disability, plaintiff requested review of the ALJ's decision to the Appeals Council on July 13, 1999. Two years later, on August 31, 2001, the Appeals Council denied plaintiff's request for review concluding that the ALJ's decision was not erroneous and adopting it as the final decision of the Commissioner. This lawsuit ensued.
Id. at 6.
Id. at 3.
Docket Entry 1.
IV. Issue Presented
1. Whether substantial evidence and relevant legal standards support the Commissioner's decision that plaintiff was not disabled within the meaning of the Act, from December 31, 1996, her alleged onset date of disability, through the June 25, 1999 ALJ's decision?
V. Analysis
A. Standard of ReviewIn reviewing the Commissioner's decision denying disability insurance benefits, the court is limited to a determination of whether substantial evidence supports the decision and whether the Commissioner applied the proper legal standards in evaluating the evidence. "Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Substantial evidence "must do more than create a suspicion of the existence of the fact to be established, but `no substantial evidence' will be found only where there is a `conspicuous absence of credible choices' or `no contrary medical evidence.'"
Martinez v. Chater , 64 F.3d 172, 173(5th Cir. 1995); 42 U.S.C. § 405(g), 1383(c)(3) (2002).
Villa v. Sullivan , 895 F.2d 1019, 1021(5th Cir. 1990) (quoting Hames v. Heckler , 707 F.2d 162, 164 (5th Cir. 1983)).
Abshire v. Bowen, 848 F.2d 638, 640(5th Cir. 1988) (quoting Hames, 707 F.2d at 164).
If the Commissioner's findings are supported by substantial evidence, then they are conclusive and must be affirmed. In my review of the Commissioner's findings, I must carefully examine the entire record, but refrain from re-weighing the evidence or substituting my judgment for that of the Commissioner. "Conflicts in the evidence and credibility assessments are for the Commissioner and not for the courts to resolve." Four elements of proof are weighed by the courts in determining if substantial evidence supports the Commissioner's determination: (1) objective medical facts, (2) diagnoses and opinions of treating and examining physicians, (3) the claimant's subjective evidence of pain and disability, and (4) the claimant's age, education and work experience.
Martinez, 64 F.3d at 173.
Ripley v. Chater, 67 F.3d 552, 555(5th Cir. 1995); Villa, 895 F.2d at 1021("The court is not to reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner.").
Martinez, 64 F.3d at 174.
Id.
1. Entitlements to Benefits
Every individual who is insured for disability insurance benefits, has not reached retirement age, has filed an application for benefits, and is under a disability is entitled to receive disability insurance benefits. The term "disabled" or "disability" means 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 twelve months." A claimant shall be determined to be disabled only if her physical or mental impairment or impairments are so severe that she is unable to not only do her previous work, but cannot, considering her age, education, and work experience, participate in any other kind of substantial gainful work which exists in significant numbers in the national economy, regardless of whether such work exists in the area in which she lives, whether a specific job vacancy exists, or whether she would be hired if she applied for work.
Id. § 1382c(a)(3)(A).
Id. § 1382c(a)(3)(B).
2. Evaluation Process and Burden of Proof
Regulations set forth by the Commissioner prescribe that disability claims are to be evaluated according to a five-step process. A finding that a claimant is disabled or not disabled at any point in the process is conclusive and terminates the Commissioner's analysis.
20 C.F.R. § 404.1520 and 416.920(2002).
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The first step involves determining whether the claimant is currently engaged in substantial gainful activity. If so, the claimant will be found not disabled regardless of her medical condition or her age, education, or work experience. The second step involves determining whether the claimant's impairment is severe? If it is not severe, the claimant is deemed not disabled. In the third step, the Commissioner compares the severe impairment with those on a list of specific impairments. If it meets or equals a listed impairment, the claimant is deemed disabled without considering her age, education, or work experience. If the impairment is not on the list, the Commissioner, in the fourth step, reviews the claimant's RFC and the demands of her past work. If she is still able to do her past work, she is not disabled. If she cannot perform her past work, the Commissioner moves to the fifth and final step of evaluating the claimant's ability, given her residual capacities, age, education, and work experience, to do other work. If she cannot do other work, she will be found disabled. The claimant bears the burden of proof at the first four steps of the sequential analysis. Once she has shown that she is unable to perform her previous work, the burden shifts to the Commissioner to show that there is other substantial gainful employment available that the claimant is not only physically able to perform, but also, taking into account her exertional and non-exertional limitations, able to maintain for a significant period of time. If the Commissioner adequately points to potential alternative employment, the burden shifts back to the claimant to prove that she is unable to perform the alternative work.
20 C.F.R. § 404.1520 and 416.920.
Id.
Id.
Id.
20 C.F.R. § 404.1520 and 416.920.
Id.
Id.
Id.
Id.
Leggett, 67 F.3d at 564.
Watson v. Barnhart, 288 F.3d 212, 217 (5th Cir. 2002).
Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989).
In this case, the burden of proof never shifted to the Commissioner as the ALJ found that plaintiff failed to meet her burden at Step four of the sequential evaluation analysis. That is, she failed to establish she was unable to perform her past relevant work as an auditor/quality inspector or cashier/checker. B. Is the June 5, 1999 ALJ's Decision Supported by Substantial Evidence?
Transcript, at 18, Finding Nos. 18-19.
Plaintiff challenges the ALJ's decision on five grounds: (1) the ALJ failed to propound a hypothetical to the vocational expert that reasonably incorporated all of her limitations, particularly, her mental disorders; (2) the ALJ failed to consider the opinions of the non-examining psychiatrist; (3) the ALJ erred in according inadequate weight to the opinion of the examining physician; (4) the ALJ failed to consider all of the plaintiff's impairments, specifically her arthritis; and (5) the ALJ applied an incorrect standard in denying plaintiff's claim for benefits. Plaintiff argues the ALJ committed reversible error and that her findings are not supported by substantial evidence. IN my opinion, the record does not support plaintiff's challenges.
1. Whether the ALJ's hypothetical question to the VE reasonably incorporated all of the plaintiff's limitations, that in her opinion, were supported by the objective evidence of record.
Plaintiff argues that the RFC assessment used by the ALJ in the hypothetical question she posed to the VE is not supported by the substantial evidence of record. Particularly, plaintiff posits that the ALJ failed to propound a hypothetical to the VE which reasonably incorporated all of the plaintiff s mental limitations associated with her disorders. Plaintiff contends the ALJ's presentation of an improper or defective hypothetical constitutes reversible error. Interestingly, plaintiff further added: "[C]ounsel for the Plaintiff did incorporate mental limitations into a hypothetical for the vocational expert, which resulted in credible testimony that the hypothetical individual would be unable to perform substantial gainful activity." Even assuming that the VE testimony substantially changed in response to the hypothetical question given by plaintiff's attorney, as plaintiff contends, I find it difficult to determine the harm plaintiff suffered as a result of the ALJ's alleged improper hypothetical question.
Docket Entry 7, at 9.
Id.
Further, the testimony of the VE was not a prerequisite for the ALJ to reach her disability finding at Step four of the sequential evaluation process, as it was done in this case. At this step of the process, the ALJ is required to determine whether claimant could perform her past relevant work, without regard to her age, education, or work experience. In this case, based on the ALJ's review of the medical and objective evidence of record, as well as plaintiff's hearing testimony and that of the medical expert's, the ALJ determined that plaintiff was still able to perform her past occupations as an auditor/quality inspector or a cashier/checker (through the use of a scanner). The ALJ relied on the VE's testimony to confirm the level of exertion as well as the skills necessary to perform in those occupations. Because both were considered light work, semi-skilled in nature, the ALJ concluded that plaintiff's physical and mental limitations did not preclude her from performing in those occupations. In my opinion, the ALJ's reliance on the VE's testimony for this purpose was not erroneous.
Harner v. Sullivan , 887 F.2d 92, 97(5th Cir. 1989); and Leggett, 67 F.3d at 565 ("Although VE testimony is not required for a step four decision, the ALJ may appropriately rely on such testimony in determining that a plaintiff's limitations do not prevent performance of her past relevant work.").
20 C.F.R. § 404.1560, 416.960(b).
Transcript, at 16.
Light work, as defined in the federal regulations, "involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. § 416.967.
Nevertheless, in addressing the plaintiff's arguments relating to the purported use by the All of a defective hypothetical question, the record demonstrates that this was the hypothetical question posed by the ALJ to the VE will be reviewed. It reads as follows:
If you had an individual who could perform light work as described in the Commission's regulations, but who has, they could not do repetitive fine manipulation with the right hand and could not do any overhead reaching with the right arm. And an individual who has a fair ability, fair being described as somewhat affected, below average, ability to maintain attention and concentration, to respond to changes in the work setting, essentially, to deal with work stresses and to interact with the public. Has a good ability to understand, remember, and carry out detailed job instructions. Probably has a, we'll give this person at best a fair ability to understand, remember, and carry out detailed job instructions. And I think a poor ability to deal with complex material, understand, remember and carry out complex job instructions. Could such a person do any of the past work that you described?
Transcript, at 497.
The VE responded that in his opinion, plaintiff could perform her past relevant work as an auditor and inspector at a clothing manufacturing company and as a cashier/checker at a grocery store, and with respect to the latter, provided that she use a scanner and avoid repetitive finger manipulation. While perhaps the ALJ may not have incorporated all of the limitations of which plaintiff was found to be "moderately limited" by a state agency non-examining physician back in July of 1998, the ALJ nevertheless reasonably incorporated in the hypothetical those limitations of which plaintiff was found to be "markedly limited" by the state non-examining physician, namely, her inability to understand and remember detailed instructions, and her inability to carry out detailed instructions.
Id. at 497-98.
Docket Entry 7, at 8-9(citing to Transcript, at 105-07). In this case, the ALT in essence equated "markedly limited" with "fairly limited." The ALJ defined the term "fair" as "somewhat affected," demonstrating a"below average" ability perform a certain task. The term "fair" as used by the ALJ to explain the extent of plaintiff's mental limitations was derived from the terminology used by the Texas Rehabilitation Commission in the same context. Transcript, at 498.
The transcript of the hearing proceedings further reveal that the ALJ gave plaintiff's counsel the opportunity to cross examine the VE, correct any "defects" in the ALJ's hypothetical question or pose a "revised" or a new hypothetical to the VE. The record demonstrates that plaintiff's attorney did not add to the mental limitations used by the ALJ in his hypothetical. Rather, plaintiff's attorney questioned the VE whether an individual, who is frequently unable to complete her tasks in a timely manner or keep a consistent pace at work, could still be employed in those two occupations. The VE answered (as expected) that if there was a consistent pattern of failing to meet or complete tasks or an inability to meet deadlines or productivity quotas, that individual would not be employable. The limitations, however, as used by the plaintiff's attorney in his hypothetical question to the VE were not documented as being experienced by the plaintiff during the time-period relevant to the ALJ's decision. On the other hand, the ALJ's hypothetical reasonably incorporated the limitations the ALT found that plaintiff had based on the objective medical evidence of record. An ALJ is not bound by evidentiary assumptions she finds not to exist. Thus, even if the VE testimony had been required, in my opinion, the ALJ properly framed her hypothetical question to reasonably incorporate plaintiff's limitations.
Transcript, at 498-500.
Id. at 500-01.
Id.
Further, it should be noted that the state agency psychiatric evaluation conducted in July of 1998. relied upon by plaintiff in her argument in favor of reversal, states the following:
Claimant is a fifty-two year old female with history of depression and anxiety disorder, currently under treatment by a private psychiatrist. She is well-oriented and goal directed but has many somatic complaints and fears constantly concerning one of her children who has bipolar disorder. It is reasonable to expect that claimant retains the capacity to perform work of at least a simple nature that is repetitious and requires only minimally (sic) interpersonal skills on her part.
Transcript, at 107. In my opinion, this evaluation of plaintiff's functional capacity assessment does in fact support the ALJ's mental RFC.
Owens v. Heckler, 770 F.2d 1276, 1282(5th Cir. 1985).
The Fifth Circuit Court of Appeals in the case of Bowling v. Shalala, outlined the test for determining when a "defective hypothetical question" will produce reversible error. The Court determined that unless the hypothetical posed to the VE "can be said to incorporate reasonably all disabilities of the claimant recognized by the ALJ" and "the claimant is afforded the opportunity to correct deficiencies in the ALJ's questioning (including additional disabilities not recognized by the ALJ's findings and disabilities recognized but omitted from the question)," then a "determination of non-disability based on such defective question cannot stand." Thus, the test for reversible error is: 1) the hypothetical question presented to the VE by the ALJ must reasonably incorporate all of the disabilities recognized by the ALJ, and 2) the claimant must be given an opportunity to correct any deficiencies in the ALJ's question. Because both of these prongs have been met in this case, I recommend that plaintiff's first point of error be overruled.
36 F.3d 431 (5th Cir. 1994).
Id. at 436.
2. Whether the ALJ properly considered the opinions of the non-examining psychiatrist.
Plaintiff bases this point of error on the purported inability of the ALJ to fully consider the psychiatric evaluation performed by a state non-examining physician, Dr. Farrell Hillman, in July of 1998. Plaintiff argues that the ALJ erred in her failure to consider all of the moderate and marked limitations found during the evaluation, focusing instead on the abilities retained by the plaintiff, namely, that "she was not mentally incapacitated for simple repetitive tasks requiring minimal interpersonal skills." Contrary to plaintiff's position, I do not find that the ALJ erred in her consideration of Dr. Hillman's evaluation. The ALJ in her decision concluded that, in light of the record as a whole, she agreed with Dr. Hillman's assessment that plaintiff's physical and mental impairments were "not shown to be disabling for all work." In my opinion, the ALJ's interpretation of Dr. Hillman's findings was accurate and not erroneous. Accordingly, it is my recommendation that plaintiff's second point of error lacks merit; and thus, it should be denied. Contrary to plaintiff's assertions, the ALJ did not ignore, but indeed properly considered Dr. Hillman's evaluation in her decision.
Docket Entry 7, at 9-10.
Transcript at 14 and 107.
Id. at 14 (citing SSR 96-p).
I find curious plaintiff's argument on the weight to be given to Dr. Hillman's evaluation. Dr. Hillman only examined plaintiff once within the context of her claim for benefits at the initial and reconsideration levels of the SSA's administrative proceedings, and his assessment was used to deny plaintiff's claim for benefits. Docket Entry 9. at 4; and Transcript, at 105-17.
3. Whether the ALJ accorded due weight to the opinion of the consultative examining psychiatrist.
Plaintiff further contends that the ALJ gave inadequate weight to the opinion of Dr. Robert Kalter, a psychiatrist who performed a one-time consultative examination of the plaintiff on June 3, 1998. Specifically, plaintiff contends that the ALJ failed to give any weight to the global assessment of functioning ("GAF") of forty-three found by Dr. Kalter, nor did the ALJ explain how she evaluated Dr. Kalter's report. In my opinion, plaintiff's arguments are not persuasive.
Docket Entry 7, at 10-11; and Transcript, at 126-28.
Id. The GAF is a rating intended for use by mental practitioners with respect to planning treatment and tracking the clinical progress of an individual in global terms, using a signal measure. On the OAF, the practitioner rates the patient's ability to function on a scale of 1(the lowest rating) to 100(superior functioning). A GAF of 50-41 suggests " [s]erious symptoms ( e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning ( e.g., no friends, unable to keep a job)." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDER 32, 34 (4th ed. 2000) (Emphasis in original).
A review of the ALJ's decision indicates that she gave due weight to the evaluation conducted by Dr. Kalter. The ALJ, in her decision, summarized Dr. Kalter's findings as follows:
In June, 1998, consultative psychiatric examination by Robert Kalter, M.D., noted that the claimant reported that she was very depressed, saw frightening shadows at night and had frequent periods of moodiness and irritability [. . .]. Mental status examination found anxious and depressed mood, appropriate affect, intact memory, low average range intelligence, coherent thought processes, and no evidence of delusions or hallucinations [. . .]. Dr. Kalter noted that due to her son's bipolar disorder, the claimant felt trapped in a situation she could not control. The diagnosis was major depressive disorder, recurrent and moderate and generalized anxiety disorder.
Transcript, at 14.
This was a proper summary of Dr. Kalter's findings. Further, a review of the ALJ's decision indicates that she in fact agreed with Dr. Kalter's assessment that plaintiff suffered from mental depression and anxiety disorders and that these conditions were properly documented by the medical evidence of record. Importantly, through the testimony of the medical expert at the hearing and the objective medical evidence of record, the ALJ gave weight to the medical evidence provided by plaintiff's treating psychiatrist, Dr. Raul E. Gorigoitia.
Id. at 17, Finding No. 3.
Id. at 331-45, 489 and 491-93.
The record shows, for instance, that Dr. Gorigoitia had been treating plaintiff since March 19, 1996. According to plaintiff's testimony at the hearing on May 20, 1999, she would see Dr. Gorigoitia once every three months. Despite plaintiff's hearing testimony, however, the last record of her visit to Dr. Gorigoitia' s office is dated December 31, 1998. In that report, and in fact, since November 3, 1998, Dr. Gorigoitia assessed plaintiff's depression and anxiety disorders as "mild." While evidently some adjustments needed to be made to her prescribed medications (Paxil and Lorazepam) over the course of her treatment, it appears, based on Dr. Gorigoitia's reports as well as plaintiff's hearing testimony, that as of November of 1998 she was responding well to the prescribed medication therapy. There is also no evidence that plaintiff ever needed psychotherapy as part of her treatment.
Id. at 345.
Id. at 480-81.
Id. at 332.
Id. at 331-32.
Id. at 331-32 and 480-81. To that end, plaintiff testified that even though she had her good and bad days with her medications, she nevertheless noticed an improvement in that she was no longer seeing shadows at night. Id. at 480-81.
Id. at 126, and 331-45.
Although plaintiff primarily relies on the report rendered by the consultative psychiatrist on June 3, 1998, six months prior to Dr. Gorigoitia's last report made of record, in seeking reversal of the ALJ's decision, plaintiff had failed to provide any other medical evidence calling into question Dr. Gorigoitia's assessment in December of 1998. Nor has plaintiff pointed to any other evidence leading me to believe that her condition had not improved by November of 1998 as reported by Dr. Gorigoitia.
Moreover, in addressing plaintiff's contention regarding the failure of the ALJ to mention the "low" GAF score of forty-three as noted by Dr. Kalter in his June 3, 1998 evaluation of the plaintiff, I find that such failure does not in itself constitute reversible error. A GAF score is not a rating typically relied upon with respect to assessing an individuals's RFC under the Act. While the GAF is a test used by mental health practitioners with respect to planning treatment and tracking the clinical progress of an individual in global terms, the ALJ is not bound to consider its results at the exclusion of other medically reliable evidence. According to applicable federal regulations, the ALJ determines the RFC based on the greatest capability of an individual to do work despite limitations. The RFC is derived from an assessment of plaintiff's description of her limitations, including medical evidence, personal testimony, and testimony from other individual(s) or opinions from physicians. The record demonstrates that the ALJ in this regard not only reviewed Dr. Kalter's findings, but also reviewed and considered the findings of plaintiff's treating physicians, i.e., Dr. Raul E. Gorigoitia, Donna Boehme, Dr. Ana Ballester-Fiallo and Dr. Bal Reddy, consultative examiner Dr. James Ross, as well as the hearing testimony of medical expert, Dr. Arthur Briggs. The ALJ also evaluated plaintiff's hearing testimony as to her symptoms, daily activities, and her medications.
20 C.F.R. § 416.945.
Id.
Transcript, at 12-16.
Id. at 14-15; and 475-86.
Considering all of this evidence and "reviewing the record in a light most favorable to the claimant," the ALJ assessed plaintiff's RFC regarding her mental limitations and concluded that these were not so severe as to functionally restrict work activity requiring only simple, repetitive and routine tasks, and a minimal amount of interpersonal skills. Based on these findings, the ALT properly weighed and assessed the medical evidence of record in determining the limitations plaintiff's mental impairments posed on her ability to engage in substantial gainful activity. For these reasons, it is my recommendation that plaintiff third point of error be overruled.
Id. at 14 and 16.
4. Whether the ALJ properly considered all of the plaintiff's impairments, including her arthritis.
Plaintiff further contends that the ALJ erred by not considering her inflammatory arthritis as a "severe" medically determinable impairment. Plaintiff maintains that in doing so, the ALJ erred in her RFC assessment of the plaintiff. In my opinion, the substantial evidence of record does not support plaintiff's contention.
Docket Entry 7, at 11-13.
Id.
According to the medical expert testimony at the hearing, plaintiff's medical records showed that while she had been given a diagnosis of inflammatory arthritis in the past, and complained at the hearing of body pain, particularly the right joints ( i.e., shoulder, elbow, wrists, hand, hips, and both knees and ankles), that all her joints were essentially normal pursuant to a physical examination conducted in February of 1998. The medical expert at the hearing mentioned that there was no evidence that any of plaintiff's joints were hot or consistently swollen. Indeed, X-rays of her extremities did not reveal any abnormalities, except for some mild degenerative changes in the feet. The medical expert also noted plaintiff's elevated "ESR" (abbreviation for "erythrocyte sedimentation rate") at one time and her diagnosis of "seronegative inflammatory arthritis," but also stated that all rheumatoid factors were negative when they were last tested. The medical expert did note that plaintiff's spine showed signs of arthritis, but that she nevertheless showed a full range of motion during the February 9, 1998 physical examination.
The record demonstrates that plaintiff was diagnosed on January 26, 1996 (Dr. Huff), as suffering from polyarthritis, probably the rheumatoid type. At the time of her diagnosis, plaintiff was showing tenderness and synovial thickening in multiple joints. Transcript, at 149. Polyarthritis is defined as the simultaneous inflammation of several joints. STEDMAN'S MEDICAL DICTIONARY 1419 (27th ed. 2000). There is also evidence that plaintiff received treatment for her polyarthritic condition by rheumatologist Dr. Ana M. Ballester-Fiallo, from September 20, 1996 through November 24, 1997, and that she also diagnosed plaintiff as suffering from degenerative joint disease. Transcript, at 346-51.
Transcript at 486 and 234-35. In fact, according to the Dr. Ross, the physician who performed the examination on that date, found that plaintiff's extremities were:
[N]ontender, nonswollen longbones and musculature. Range of motion: full in all joints tested except the right wrist. All joints were tested. There is pain on passive and active range of motion in the right shoulder, elbows, right wrists, and right knee. No joint crepitus or effusions. There are no hot joints and no grossly deformed or hypertrophic joints.Id. at 234.
STEDMAN'S MEDICAL DICTIONARY, at 620. The term "erythrocyte," in turn, is defined as a "mature red blood cell." Id. at 617.
"Seronegative" is defined as the "absence of an antibody usually found in a given syndrome ( e.g., rheumatoid arthritis without rheumatoid factor)." STEDMAN's, at 1623.
Transcript, at 234-35 and 489. While plaintiff takes issue with the fact that the medical expert mainly discussed the February 9, 1998 examination conducted by consultative examiner Dr. Ross, this one was one of the most recent evaluations of plaintiff's extremities made part of the record. The ALJ in her decision also mentioned that there was one report prepared by Dr. Donna Boehme, plaintiff's hand specialist who primarily treated plaintiff for her carnal tunnel syndrome, conducted in November of 1998, which noted plaintiff's recurrent pain on her right thumb. Dr. Boehme attributed the pain to early arthritis. Id. at 13 (citing Exhibit 352).
Based on this evidence, the ALJ did not err in finding that plaintiff's arthritic condition, while present, was not severe enough to preclude her from engaging in substantial gainful activity. It is worth noting the ALJ's finding that plaintiff suffered from severe degenerative joint disease. Even if I were to assume that degenerative joint disease is completely different and does not encompass inflammatory arthritis, as plaintiff maintains, the medical evaluations conducted of plaintiff's extremities predominately revealed degeneration in the joints, particularly those on her back and feet (in addition to her symptoms related to her carpal tunnel syndrome). Accordingly, because in my opinion the ALJ properly considered the medical evidence of record in assessing the severity of plaintiff's arthritic condition, plaintiff's fourth point of error should be overruled.
Plaintiff's argument that the ALT improperly relied on the medical expert testimony should not be found persuasive. Docket Entry 7, at 13 and fn.60. The medical expert rendered an accurate summary of the relevant objective medical evidence of record and then rendered his expert opinion as to the limitations encountered by plaintiff based on her impairments in her ability to work. Further, because the medical evidence as a whole, did in fact support the medical expert's opinion as well as the ALJ's findings, the Fifth Circuit's holding in Myers v. Apfel, 23S F.3d 617 (5th Cir. 2001) is not applicable.
Id. at 17, Finding No. 3.
Docket Entry 15, at 3-4.
Further, plaintiff argues that the ALJ failed to take into consideration plaintiff's credible hearing testimony concerning her arthritic pain. Contrary to plaintiff's argument, however, the ALJ's decision includes a credibility determination concerning plaintiff's subjective symptoms and complaints of pain. For instance, on page 5 of her decision, the ALJ states:
Docket Entry 7, at 12-13.
In determining work capacity, the undersigned considered all record evidence and hearing testimony, including all evidence related to the claimant's reported subjective symptoms of chronic pain, mental confusion, nervousness, and mood swings. 20 C.F.R. § 404.1529, 20 C.F.R. § 416.929. Some of the symptoms reported by the claimant reasonably derive from medically determinable impairments evidenced in the record and the record supports that the claimant is reasonably restricted from heavy and strenuous work. However, the record as a whole does not support persistence, intensity, and functional limitations which would cause disabling work limitations. SSR 96-7p. The claimant's treating physicians have not provided opinion (sic) that she is disabled by impairments and the consultative examiners have not found inability to engage in gainful employment. In total, the record as a whole fails to establish that the claimant has been unable to perform all levels and types of work activity for any consecutive 12 month period.
Transcript, at 15 and at 17, Finding No. 5.
In analyzing the merits of plaintiff's fourth point of error, I rely on the Fifth Circuit decision in Falco v. Shalala. In that case, the Court defined the meaning of pain within the applicable statutes: "Pain constitutes a disabling condition when it is `constant, unremitting, and wholly unresponsive to therapeutic treatment.'" Although, the ALJ must consider subjective evidence of pain, it is within his discretion to determine its debilitating nature. "The ALJ's decision on the severity [of pain] is entitled to great deference." In judging the claimant's credibility on the issue of pain, the ALJ can consider such things as medical reports, the claimants's daily activities and the medications the claimant is taking. An ALJ's unfavorable credibility evaluation of a claimant's complaints of pain will not be upheld on judicial review where the uncontroverted medical evidence shows a basis for claimant's complaints, unless the ALJ weighs the objective medical evidence and assigns articulated reasons for discrediting the claimant's subjective complaints of pain. Therefore, to prove disability resulting from pain, plaintiff must establish a medically determinable impairment that is capable of producing disabling pain. Once a medical impairment is established, the subjective complaints of pain must be considered along with the medical evidence in determining the individual's work capacity.
27 F.3d 160 (5th Cir. 1994).
Id. at 163(quoting Selders v. Sullivan, 914 F.2d 614, 618-19(5th Cir. 1990)).
Wren v. Sullivan, 925 F.2d 123, 128(5th Cir. 1991).
Hollis v. Bowen, 837 F.2d 1378, 1384(5th Cir. 1988).
Griego v. Sullivan, 940 F.2d 942, 945(5th Cir. 1991).
Falco, 27 F.3d. at 163.
20 C.F.R. § 404.1529.
Id.
In this case, the ALJ considered the entire record, including the objective medical evidence as well as the plaintiff's own statements regarding her pain and symptoms and how these impacted her daily routine and work related activities. The ALJ concluded that plaintiff's subjective complaints of body aches and pain were credible only to the extent that they comported with objective medical evidence. Specifically, the ALJ found that such pain would not interfere with her ability to perform work at the "light" exertional level, as defined by the federal regulations, with the restrictions that she not engage in repetitive fine manipulation of the right hand, or any overhead lifting or reaching with the fight arm. In my opinion, the ALJ's credibility assessment of plaintiff's testimony concerning pain and other symptoms is supported by the substantial evidence of record and comports with the relevant legal standards. For these reasons, plaintiff's fourth point of error should be denied.
See 20 C.F.R. § 404.1529 and 416.929; SSR-96-7p; and Transcript at 14, 476-81.
Transcript at 15.
5. Whether the ALJ applied the correct legal standards in denying plaintiff's claim for benefits.
Lastly, the plaintiff, in quoting the ALJ's Finding No. 5, argues that it appears that the ALJ only considered whether the plaintiff met the disability requirements as of October 1, 1997. Plaintiff argues that this was improper and not in accordance with the correct legal standards pertaining to claims for SSI benefits. While it is true that the ALJ stated in her Finding No. 5 that "[s]ome of the symptoms reported by the claimant reasonably derive from medically determinable impairments evidenced in the record, but are not evidenced as disabling prior to October 1, 1997," that date should be construed as an oversight or a typographical error, but not as the basis for seeking reversal.
With respect to plaintiff's claim for SSI benefits under Title XVI of the Act, those benefits can only be awarded for the period starting with the date of the application. In other words, the relevant time period for purposes of awarding SSI benefits is not from the alleged onset date of disability, but rather, from the date plaintiff filed her application for benefits. In the instant case, the relevant time period for purposes of evaluating plaintiff's claim for SSI benefits is December 1, 1997, through the ALJ's decision, on June 25, 1999. With respect to plaintiff's claim for DIB benefits under Title II of the Act, however, the relevant time period goes back to her alleged onset date of disability, that is, December 31, 1996. A review of the ALJ's decision further indicates that her consideration of the medical and other objective evidence of record covered the time period of December 31, 1996, through the date of her decision, on June 25, 1999. Plaintiff's fifth point of error should be found without merit.
Docket Entry 9, at 1. See Kepler v. Chater, 68 F.3d 387, 389 (10th Cir. 1995); and 20 C.F.R. § 416.335.
VI. Recommendation
Based on the foregoing, I recommend that the District Court DISMISS plaintiff's complaint and AFFIRM the Commissioner's decision. In my opinion, the ALJ's decision is supported by substantial evidence and correctly applies the relevant legal standards. Therefore, plaintiff's motion for summary judgment seeking reversal of the Commissioner's final decision (Docket Entry 7) should be DENIED in all respects and this cause of action should be DISMISSED WITH PREJUDICE .
VII. Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Report and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b), any party who desires to object to this report must serve and file written objections to the Report and Recommendation within ten (10) days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive, or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation within ten (10) days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn, 474 U.S. 140, 149-52(1985); Acuña v. Brown Root. Inc., 200 F.3d 335, 339 (5th Cir. 2000), cert. denied, 530 U.S. 1229 (2000).
Douglass v. United Servs. Auto. Ass'n., 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).