Opinion
Civil Action No. SA-05-CA-0282 RF (NN).
May 1, 2006
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
I. Introduction
Plaintiff Mirtha Gonzalez seeks review and reversal of the administrative denial of her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income Benefits ("SSI") by the Administrative Law Judge ("ALJ") on October 29, 2004. Plaintiff contends that ALJ Wade B. Morrison's conclusion, that plaintiff was not under a disability at any time through the date of the decision, is not supported by the substantial evidence of the record. For this reason, plaintiff requests that the Court reverse the ALJ's decision and order the entry of a finding of disability, or in the alternative, remand the case for further factual development.
Docket Entry 1. See also Administrative Transcript ("Transcript") at 12-18.
Docket Entries 1, 11, and 13.
After considering plaintiff's brief in support of her complaint, defendant's brief in support of the Commissioner's decision, plaintiff's reply brief, the transcript of the Social Security Administration ("SSA") proceedings, the pleadings on file, the applicable case authority, relevant statutory and regulatory provisions, and the entire record in this matter, it is my recommendation that plaintiff's request for relief be GRANTED and the case be remanded for further development of the record.
Docket Entry 11.
Docket Entry 12.
Docket Entry 13.
I have jurisdiction to enter this Memorandum 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.
II. Jurisdiction
The District Court has jurisdiction to review the final decision of the Commissioner of Social Security as provided by 42 U.S.C. §§ 405(g), 1383.
III. Administrative Proceedings
Based on the record in this case, plaintiff fully exhausted her administrative remedies prior to filing this action in federal court. Plaintiff filed applications for SSI and DIB on August 16, 2002, alleging a disability beginning April 14, 2001. Plaintiff had protectively filed a previous application on September 27, 2001. The Commissioner denied plaintiff's applications for benefits on April 12, 2002, and on December 9, 2002. On March 5, 2003, the Commissioner denied plaintiff's request for reconsideration.
Transcript at 58-60, and 61-63.
Transcript at 270-272.
Transcript at 23-30.
Transcript at 31-38.
Transcript at 39-42.
Plaintiff requested a hearing before an ALJ, and the hearing was held on May 10, 2004, in San Antonio, Texas. Jim Shepard represented plaintiff at the hearing. At the administrative hearing, ALJ Morrison heard testimony from plaintiff, medical expert Dr. Randall B. King, and vocational expert Bill C. Brown.
Transcript at 43.
Transcript at 45, 298.
Transcript at 298.
Transcript at 298, 50, and 52.
At the hearing, plaintiff's representative, Mr. Shepard, described plaintiff's disability as an organic brain syndrome secondary to a head injury. According to Mr. Shepard, the head injury resulted in a loss of cognitive function. Plaintiff was also being prescribed the medication Paxil for anxiety. Mr. Shepard urged a finding that plaintiff met the requirements of listing 12.02.
Transcript at 301.
Id.
Transcript at 300.
"Psychological or behavioral abnormalities associated with a dysfunction of the brain. History and physical examination or laboratory tests demonstrate the presence of a specific organic factor judged to be etiologically related to the abnormal mental state and loss of previously acquired functional abilities." 20 C.F.R. 404 Subpt. P, App. 1.
On April 14, 2002, plaintiff was involved in a motor vehicle accident. While driving a vehicle owned by her employer, she struck a post in a parking lot. Both airbags in the automobile deployed. Plaintiff sustained a head injury and fractures of her right forearm. Doctor German Benavides treated plaintiff's injury by stabilizing the fracture through the use of a plate and screws.
Transcript at 251.
Transcript at 251, 264.
Transcript at 265.
Plaintiff remained under Dr. Benavides' care throughout her convalescence. Her injuries and treatment regimen prevented her from immediately returning to work. After more than two months of convalescence, Dr. Benavides approved plaintiff to return to light duty work beginning August 13, 2001, and full duty work beginning December 12, 2001.
Transcript at 245-52.
Transcript at 245.
Transcript at 238.
Plaintiff testified that she returned to her regular job in August 2001, but "it did not work out." Her position was "cashier, telephone, greeting customers, helping them with their questions." She was limited to light duty work, but her employer wanted her to vacuum, pick up typewriters, and move desks and other heavy things. Plaintiff testified that she was dropping everything, fainting, had a lot of headaches, and had difficulty understanding customers when conversing with them. According to plaintiff, her employer terminated her employment because she could not function at "100 percent."
Transcript at 303.
Id.
Id.
Id.
Id.
In a letter dated September 10, 2001, Dr. Benavides noted that plaintiff returned to work with limitations, but she informed him that her employer had dismissed her. In agreement with the physical therapist, Dr. Benavides put plaintiff on a work hardening program. Dr. Benavides noted that plaintiff had been complaining of persistent headaches since being injured. He referred plaintiff to Dr. Jorge Martinez-Prieto, a neurologist, for examination and treatment for her recurrent headaches.
Transcript at 243.
Id.
Upon examination of the plaintiff, Dr. Martinez-Prieto found that plaintiff was alert, oriented, and in no distress. Her speech was clear and propositional, her mental status was normal, and memory testing was unremarkable. Plaintiff's motor, sensory, and cerebellar examinations yielded normal results, and her gait/station was normal. Dr. Martinez-Prieto's impression of plaintiff's condition was post concussional syndrome. Plaintiff qualified for a diagnosis of closed head injury with severe cerebral concussion because she apparently lost consciousness during her accident. Dr. Martinez-Prieto recommended treating plaintiff's headaches with Pamelor and Imitrex p.r.n., and also recommended referring plaintiff to neuropsychology for full memory testing.
Transcript at 199.
Transcript at 200.
In a followup visit, on November 21, 2001, Dr. Martinez-Prieto found plaintiff to be alert and oriented, but her immediate recall testing revealed a 55% loss in five minutes. She was having some expressive and syntactic language difficulties, as well. Dr. Martinez-Prieto's impression of plaintiff was post concussional migrainous headaches with memory loss due to temporal lobe contusion. He recommended continuing use of Imitrex at a double dose without any use of Darvocet. Dr. Martinez-Prieto insisted on a formal neuropsychological evaluation.
Transcript at 201.
On November 11, 2001, Dr. Uma Gullapalli examined plaintiff. Dr. Gullapalli reported that plaintiff was not complaining of any memory loss, sleep problems, or problems with comprehension. Plaintiff did complain of frequent headaches 2 to 3 times per week and claimed that she has difficulty driving. Dr. Gullapalli determined that plaintiff's condition should be categorized as episodic neurologic disorder of "slight severity and under such control that most of the activities of daily living can be performed." Dr. Gullapalli assigned an impairment rating of C.N.S. 5% and a whole person impairment rating of 10%.
Transcript at 184.
Id. at 184-85.
On January 30, 2002, Raymond O. Henke, Ed.D., psychologist, performed a psychological evaluation of plaintiff. Dr. Henke found plaintiff to be friendly, cooperative, and adequately motivated to perform on the tests; however, her facial expression was tense and anxious and she seemed anxious. Plaintiff performed tasks slowly. Plaintiff reported to Dr. Henke that she had trouble remembering things, she got confused while driving, she was more emotional, she cried easily, and she had migraines.
Transcript at 228-29.
Dr. Henke administered the following tests to plaintiff; Weschsler Adult Intelligence Scale-Third Edition (WAIS-III), Raven Coloured Progressive Matrices, Wide Range Achievement Test-Revision 3 (WRAT-3), Bender Visual Motor Gestalt Test (BVMGT), Memory Administration of the BVMGT, and Trail Making Test Parts A and B. Dr. Henke also conducted a Mental Status Examination, and Diagnostic Interview with plaintiff. Plaintiff's scores on the battery of tests yielded a verbal I.Q of 66, a performance I.Q. of 60, and a full scale I.Q. of 61, all in the upper end of the mild retardation range of mental functioning. Plaintiff's score on the Raven Coloured Progressive Matrices equated to an I.Q. of 53 and suggested that her intellectual skills fell in the lower end of the mental retardation range. On the academic achievement tests plaintiff scored at a grade 4 level for reading, a grade 1 level for spelling, and a grade level 2 for mathematics.
Id.
Transcript at 230.
Dr. Henke noted that the referral data indicated allegations of head injury and memory loss, but the only medical record provided with the referral was one page of a functional capacity assessment. He further noted that plaintiff presented symptoms consistent with dementia as a result of head injury. Her IQ scores were within the mild range of mental retardation, and the scores were significantly less than would be anticipated, based on her reported education and work history. Plaintiff's academics were low, and she appeared to have lost cognitive functioning. The examiner offered a diagnosis of dementia, provisionally based on the lack of substantiating medical documentation. He determined that plaintiff "will need supervision in all important areas of her life."
Transcript at 232-33.
Id.
On March 21, 2002, neurologist, Dr. Wayne H. Gordon examined plaintiff. He determined that plaintiff sustained a mild left head injury and right wrist fracture in the accident. He could not explain the headaches and memory loss beginning three months after the accident, or why the symptoms were progressing. He did not find any overt manifestations of mental impairment or any objective evidence of memory loss or dementia.
Transcript at 226.
On November 5, 2002, Dr. Harry A. Croft examined plaintiff and prepared a psychiatric evaluation of her condition. Plaintiff brought the neurological evaluation done on March 21, 2002, along with the neuropsychological testing report done by Dr. Henke to the examination. Dr. Croft noted that plaintiff's chief complaints were head pains, crying, forgetfulness, and depression. He described her as having a good attitude and appeared to be honest, though simple, during the evaluation. Her insight and judgment were fair, but her intelligence seemed severely compromised. Her concentration was poor, her ability to handle stress was poor, her persistence was average, and her pace was slow. She did not have the ability to stand for a long time. Dr. Croft diagnosed plaintiff as having an organic brain disorder secondary to head injury. He further diagnosed plaintiff as having "overwhelmingly — inability to work since accident with a myriad of emotional and organic symptoms."
Transcript at 175-79.
Plaintiff testified that she completed the twelfth grade in school, where she scored grades in the eighties equating to a B average. She took regular courses in school and no special education classes. Plaintiff stated that she had intended to attend St. Mary's University, but became pregnant with her first child before attending. Plaintiff testified that she lives with her two children ages fifteen and sixteen. She gets up at 6:00 a.m., washes, brushes her teeth, and makes breakfast. The children help with breakfast and help her to get ready. She takes them to different schools and then goes back home. Sometimes she walks with other ladies or goes to church with senior citizens. She does the grocery shopping. Plaintiff testified that she doesn't remember where she is going or which direction she is going. When she gets to the schools, she asks which way to go home.
Transcript at 302.
Id. The report of psychological evaluation, administered on January 30, 2002, states that plaintiff graduated from St. Mary's high school in Chicago, IL and she has 60 hours of college credit.
Transcript at 311. Plaintiff informed the psychologist that she had four children, three of whom live at home, and she also had one sister. Transcript at 229.
Transcript at 311-12.
When asked about her work experience after the accident, she stated that she worked as a cashier for the Texas Thrift Store for two to three weeks. The position required her to lift things, hang clothes, and move big barrels of clothes. Plaintiff stated that the lifting was too heavy, so she left the position. She also worked as an income tax preparer from November 2000 through March 2001. At that position, she entered information into a computer to prepare a tax form. However, her head hurt a lot, and she was not hired back for the past two tax seasons prior to the hearing. Plaintiff also did baby sitting for her grandchildren, ages four and five. She would pick the children up from daycare and monitor them for two hours per day.
Transcript at 324A. The record is unclear whether plaintiff voluntary left the position or her employment was terminated. Plaintiff first stated that she was fired, Transcript at 315, but later does not dispute the ALJ's statement that she quit the job. Transcript at 324.
Transcript at 319.
Transcript 315-16. The tax preparer informed plaintiff that she did not believe that plaintiff was capable of functioning 100%. Transcript at 324.
Transcript at 322.
ALJ Morrison also heard testimony from medical expert Dr. Randall King at the administrative hearing. In reviewing the medical evidence in the record, Dr. King noted that plaintiff's first neurological evaluation by Dr. Martinez showed that her memory testing was unremarkable, her mental status was normal, her speech was clear and propositional, she was alert, and showed no distress. Her sensory and cerebellar exams were normal and her gait and station were normal. Dr. King further noted, that in her neurological evaluation with Dr. Gordon, a CT was negative and she had normal mental status.
Transcript at 325.
Transcript at 326.
Dr. King opined that plaintiff sustained a mild left head injury and right wrist fracture. He was unable to explain plaintiff's headaches beginning three months after her injury. Dr. King stated that the headache symptoms might be psycho-social in nature.
Transcript at 327.
Dr. King discounted the results of plaintiff's psychological exams because it would be almost impossible for a person who attended college to score as low as plaintiff did. According to Dr. King, "it's nonphysiological, you just can't score that low in everything." He opined that the testing was not valid and plaintiff needed valid psychological testing.
Id.
Vocational expert Bill C. Brown also testified at the administrative hearing. Mr. Brown classified plaintiff's past work experience as a clerk, secretary, and cashier as sedentary to light and ranging in skill levels three to five. He classified her babysitting experience as medium semiskilled level three and her work at the thrift store as more than medium level with lifting weights of fifty pounds plus.
Transcript at 342-343.
Id.
On October 29, 2004, ALJ Morrison issued his decision in which he concluded that plaintiff was not under a "disability" as defined by the Social Security Act ("the Act"), at any time through the date of the decision. Specifically, ALJ Morrison found that plaintiff's medically determinable impairments did not meet or medically equal any of the listed impairments of Appendix 1, Subpart P. Regulation No. 4. Further, plaintiff's medically determinable impairments did not prevent her from performing her past relevant work.
Transcript at 18.
Id. at 17-18.
After receiving the ALJ's unfavorable decision, plaintiff requested review of the hearing decision and order. On February 11, 2005, the Appeals Council concluded that there was no basis upon which it could grant plaintiff's request for review, thereby denying plaintiff's request. Plaintiff commenced the present action seeking reversal or alternatively, reversal and remand of the decision of the Commissioner of the Social Security Administration with a complaint filed on April 13, 2005.
Transcript at 8 and 7, respectively.
Transcript, at 4-7.
Plaintiff filed a motion to proceed in forma pauperis on April 6, 2005, Docket Entry 1, which was granted by order entered on April 13, 2005, Docket Entry 2. The Clerk filed the original complaint on April 13, 2005, Docket Entry 3.
IV. Issue Presented
Is the ALJ's decision that plaintiff was not under a "disability," as defined by the Act, at any time through the date of the decision, supported by substantial evidence and does the decision comport with relevant legal standards?
V. Analysis
A. Standard of ReviewIn reviewing the Commissioner's decision denying disability insurance benefits, the reviewing 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 reviewing the Commissioner's findings, a court must carefully examine the entire record, but refrain from re-weighing the evidence or substituting 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. Entitlement 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 his or her physical or mental impairment or impairments are so severe that he or she is unable to not only do his or her previous work, but cannot, considering his or 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 the claimant lives, whether a specific job vacancy exists, or whether the claimant would be hired if he or she applied for work.
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 his or 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 his or her past work. If the claimant is still able to do his or her past work, the claimant is not disabled. If the claimant cannot perform his or her past work, the Commissioner moves to the fifth and final step of evaluating the claimant's ability, given his or her residual capacities, age, education, and work experience, to do other work. If the claimant cannot do other work, he or she will be found disabled. The claimant bears the burden of proof at the first four steps of the sequential analysis. Once the claimant has shown that he or she is unable to perform his or 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 he or 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).
B. Findings and Conclusions of the ALJ
In the instant case, the ALJ reached his decision at step four of the evaluation process. At step one, the ALJ found that plaintiff had been employed as a tax preparer November 2001 through March 2002, working 20 hours per week and earning $6.50 per hour. The ALJ also found that plaintiff worked as a babysitter for about a year, earning $200.00 per week caring for her grandchildren. The ALJ determined that the babysitting job constituted substantial gainful employment because it produced sufficient earnings, but also determined that plaintiff did not engage in substantial gainful employment before or after the babysitting job and so continued with the evaluation process. ALJ Morrison then concluded at steps two and three that plaintiff had an impairment or combination of impairments (status post right wrist fractures and a closed head injury), which were severe, but did not meet or medically equal a listed impairment in Appendix 1, Subpart P. Regulation No. 4. At step four, the ALJ found that plaintiff retained the residual functional capacity to perform work-related activities of her past relevant work as an office clerk, cashier, and secretary, and her medically determinable impairments did not preclude her from performing her past relevant work. Based on the foregoing, ALJ Morrison concluded that plaintiff was not under a disability.
Transcript at 12.
Transcript at 13.
Transcript at 17; ¶ 3.
Transcript at 17; ¶ 4.
Transcript at 18; ¶¶ 7and 8.
Transcript at 18; ¶ 9.
C. Plaintiff's Allegations of Error
Plaintiff claims that the ALJ erred in determining that plaintiff was not under a disability as defined by the Act, and that the determination is not supported by substantial evidence. In particular, plaintiff contends that the ALJ erred in "finding the medical expert's opinion credible, finding that the examining sources' opinions were not credible, not resolving the conflict in the record when he found one, equating sporadic activities of daily living with an ability to perform full time competitive work, and assessing her RFC (including but not limited to use of her right arm/hand and in not finding her obesity a severe impairment and how it impacts her RFC)."
Docket Entry 11 at 1.
1. Did the ALJ improperly discount the evidence of Dr. Henke and Dr. Croft and give unwarranted weight to the medical expert Dr. King?
Plaintiff's first three claims of error go to the ALJ's application of the law in reviewing and giving weight to the evidence presented. Plaintiff argues that the ALJ gave undue weight to the opinion of the medical expert, who had not examined plaintiff, over the evidence of doctors who had examined, evaluated, and diagnosed the plaintiff. Plaintiff argues that the ALJ erred as a matter law, and his decision should be reversed.
It is well within the authority of the ALJ to access the credibility of expert witnesses, as well as lay persons and weigh their opinions and testimony. As a general rule, "substantial weight" or "considerable weight should be given to the opinion, diagnosis, and medical evidence of the physician treating the plaintiff." Likewise, an examining physician's opinion should be given more weight than that of a non-examining physician. However, the ALJ should "reject the opinion of any physician when the evidence supports a contrary conclusion" or reject "a physician opinion when it is brief, conclusory, or not supported by medically acceptable clinical or laboratory diagnostic techniques." Further, the ALJ may rely on a non-examining physician's opinion when his or her "findings are based on a careful evaluation of the medical evidence and do not contradict those of the examining physicians."
Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990).
Ferguson v. Secretary of Health and Human Services, 919 F.Supp. 1012, 1020 (E.D.Tex. 1996) (citing Fruge v. Harris, 631 F.2d 1244 (5th Cir. 1980)).
Id.
Id.
Eaves v. Secretary of Health and Human Services, 877 F.Supp. 334, 344 (E.D.Tex 1995).
Finally, mental functioning and depression require specialized training to evaluate. If an ALJ discounts diagnoses and opinions from specialists in the field without specific and legitimate reasons for rejecting them, he or she impermissibly substitutes a layman's view of a disorder in lieu of an expert opinion.
See Wiggins v. Apfel, 29 F.Supp.2d 486, 492 (N.D.Ill. 1998) ("If an ALJ indulges his layman's view of a disorder in lieu of an expert opinion, the ALJ's decision lacks evidentiary support and must be returned to the Administration for further proceedings.").
In this case, ALJ Morrison erred as a matter of law by discounting the diagnoses and opinions of psychologist Dr. Henke and psychiatrist Dr. Croft without affording plaintiff the opportunity to undergo a consultative psychological examination as suggested by the medical expert on two occasions. The ALJ failed to properly give weight to Dr. Henke's psychological evaluation of plaintiff. Dr. Henke specializes in psychology. Dr. Henke examined plaintiff on January 30, 2002, at which time he observed, interviewed and objectively tested plaintiff. Accordingly, his opinion and diagnosis is of an examining specialist and should be accorded more weight than that of the non-examining expert, Dr. King.
Dr. King questioned Dr. Henke's credentials as a psychologist based on the fact that Dr. Henke's degree is Ed.D. and not PH.D. Transcript at 327. Under Texas law, in order to be a licensed psychologist, a person must be provisionally licensed as a psychologist and have two years of supervised psychological services experience. In order to be provisionally licensed, a person must pass an examination for a provisional license and have a doctoral degree in psychology or the substantial equivalent of a doctoral degree in psychology in both subject matter and training. TX OCC §§ 501.251-255. An Ed.D. in psychology satisfies the educational requirement of the rule, and Dr. Henke is enrolled on the 2005 Roster of Licensees as a psychologist.
Dr. King opined that Dr. Henke's testing was invalid, and the ALJ concurred with that opinion. However, Dr. King did not address Dr. Henke's methodology, the appropriateness of the testing, or review the actual tests. He did not point to any fallacy in the testing or the scoring procedure. Dr. King based his opinion upon his observation of plaintiff in the courtroom and his belief that plaintiff could not have scored as low as she did. Dr. King's explanation was that plaintiff had a headache when she was evaluated, and presumably, the headache affected her demeanor and ability to perform well under the examination conditions. Dr. King suggested that plaintiff be tested a second time.
Rather than cutting against plaintiff's contention of debilitating headaches and cognitive diminution, Dr. King's opinion appears to support plaintiff's contention, in that, she is unable to function normally when in stressful or pressure situations.
Transcript at 328.
The ALJ agreed with Dr. King that the psychological testing was invalid. He accepted that the testing did not present an accurate picture of plaintiff's cognitive abilities. However, he did not direct further testing be done, as Dr. King suggested, and failed to explain why he rejected that suggestion.
The ALJ also discounted Dr. Croft's psychiatric evaluation of plaintiff in summary fashion. He acknowledged that Dr. Croft diagnosed organic brain disorder and depression, that plaintiff might be experiencing some difficulty due to these problems, but concluded that the evidence shows that she retains the ability to "understand and perform non-complex instructions, relate to supervisors, and adapt to changes." The ALJ did not specifically identify the evidence to support this conclusion, but refers to plaintiff's statement that she had applied for telemarketer and clerical jobs and thought that she could do them. By failing to properly consider Dr. Henke and Dr. Croft's opinions, the ALJ committed error as a matter of law, and remand is warranted with directions that additional consultative psychological testing be performed.
Transcript at 16.
Id.
2. Did the ALJ properly assess plaintiff's RFC?
Plaintiff contends that the ALJ improperly considered her daily living activities in making a determination of her residual functional capacity. Plaintiff further contends that the ALJ failed to provide an assessment of her exertional functional capacity and limitation on the use of her right arm as well as an assessment of her obesity as a severe impairment.
To the extend that plaintiff argues that the ALJ cannot consider a disability claimant's life activities in making a step four determination, she misstates the applicable law. The Fifth Circuit has determined that it is appropriate "to consider the claimant's daily activities when deciding the claimant's disability status." Accordingly, the ALJ did not commit error by considering plaintiff's daily life activities in conjunction with evidence of volunteer work with senior citizens, employment preparing taxes, and babysitting her grandchildren to make a RFC determination.
Leggett, 67 F.3d at 565 n. 12 (5th Cir. 1991).
See Reyes v. Sullivan, 915 F.2d 151, 155 (5th Cir 1990) (holding that evidence of daily life activities may be considered in conjunction with other evidence); see also Harris v. Secretary of Dept. of Health and Human Services, 959 F.2d 723, 726 (8th Cir. 1992) (claimant's ability to do daily activities alone does not constitute substantial evidence of a residual functional capacity to engage in substantial gainful activity).
As to the contention that the ALJ failed to consider her obesity, plaintiff failed to raise this condition as a basis for finding her disabled. She has never argued that her weight has been a limiting factor in her ability to engage in substantial gainful employment. Furthermore, the record indicates that her weight has remained relatively stable since the time of the accident, which she alleges resulted in her disability. Plaintiff's weight was not a limiting factor in performing her job as an office manager, clerk, tax preparer or babysitter. Accordingly, the ALJ did not err by failing to consider obesity as a limiting factor.
See Transcript at 262, 253, 225,198, 165, 164, 163.
Finally, the ALJ's RFC assessment of her physical ability is based on the substantial evidence contained in a medical evaluation. On September 17, 2001, physical therapists at HEALTHSOUTH Rehabilitation Center of San Antonio performed a functional capacity evaluation of plaintiff. Plaintiff tolerated sitting and standing on a constant basis. She also tolerated walking, repetitive squatting, repetitive and sustained forward reaching, and computer typing on an occasional basis. A physical residual functional capacity assessment conducted on October 31, 2002, indicated that plaintiff could occasionally lift fifty pounds and frequently lift 25 pounds. She could stand and/or walk for a total of about six hours in an eight-hour workday. Plaintiff could also sit with normal breaks for six hours out of an eight-hour workday. However, due to her arm injury plaintiff had a moderate restriction limiting reaching and handling with her right arm.
Transcript at 253.
Transcript at 218.
Transcript at 220.
Accordingly, the ALJ's determination of plaintiff's physical RFC is supported by substantial evidence, and therefore plaintiff's objection to the RFC is without merit. No opinion is expressed as to plaintiff's mental abilities pending results of further psychological testing.
VI. Recommendation
Based on the foregoing, I recommend that plaintiff's request for relief (Docket Entry 1) be GRANTED, and this action be REMANDED for further proceedings consistent with this Memorandum and Recommendation. On remand, the ALJ should direct plaintiff to undergo an additional consultative psychological testing and request any other relevant information from physicians or specialists with knowledge of plaintiff's psychological condition. If further evidence from a medical or vocational expert or consultative examiner would benefit the ALJ, he should be encouraged to obtain the same. Upon receiving the additional evidence, the ALJ should be directed to assess the medical and non-medical evidence of record and render an explicit conclusion regarding plaintiff's psychological condition and her ability to maintain employment.
VII. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum 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 Title 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 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 Memorandum and Recommendation within 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.
Thomas v. Arn, 474 U.S. 140, 149-152 (1985).
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).