Opinion
Civil Action No. SA: 04-CA-0211-XR.
July 19, 2005
ORDER
On this date the Court considered Plaintiff's appeal of an adverse disability determination by the Social Security Administration and Plaintiff's objections to the Report and Recommendation of the United States Magistrate Judge that her appeal be denied. After careful consideration of the record and the Plaintiff's objections, the Court will ACCEPT the Magistrate Judge's recommendation and AFFIRM the Commissioner's denial of disability benefits.
I. Procedural History
Plaintiff filed an application for disability benefits on October 15, 2001. Her application was denied on April 2, 2002 and then again, after review, on August 9, 2002. Administrative Law Judge (ALJ) Jonathan Blucher issued a third denial on October 27, 2003 after a hearing on July 31, 2003. Plaintiff unsuccessfully appealed the ALJ's decision to the Appeals Council. Plaintiff filed the instant action and on May 31, 2005, United States Magistrate Judge Nancy Stein Nowak filed a Report and Recommendation that the Plaintiff's claim be denied.
II. Facts
Plaintiff, at the time a forty-one year old female with an eighth grade education, testified before ALJ Blucher at an administrative hearing that she was only able to read "little words." During the past fifteen years, Plaintiff has worked as a home provider, a sewing machine operator, and a seamstress. Plaintiff indicated to ALJ Blucher that her job as a seamstress ended because the company closed down. Plaintiff also stated that she has a driver's license but that anxiety interferes with her ability to drive. Furthermore, Plaintiff claimed that she has trouble sleeping during the night but sleeps a lot during the day due to her medication for back pain.When asked by ALJ Blucher about her daily life and activities, Plaintiff testified that she lived in a trailer with her boyfriend of seventeen years and her then twenty-one year old daughter. Plaintiff stated that her daughter does all of the cooking, cleaning, dishwashing and paying of bills. Plaintiff further indicated that she does not go to movies, attend church or eat at restaurants due to depression; she does however, go to counseling three times per week. Plaintiff testified that her anger, depression, back pain, anxiety, asthma, and fibromyalgia prevent her from working. Plaintiff also stated that she has trouble sitting for more than one hour at a time due to pain and that her depression and pain prevent her from concentrating.
Dr. Laura Perches, a psychiatrist, conducted a consultative examination on February 19, 2002 and concluded that Plaintiff suffers from a mood disorder. Dr. Perches also indicated that Plaintiff suffers from borderline personality disorder, though she indicated that the prognosis for recovery was good.
Additionally, at the administrative hearing ALJ Blucher heard testimony from vocational expert Lloyd Fatzinger. Mr. Fatzinger expressed an opinion that Plaintiff, although unable to return to her past work as a home health provider, could perform alternate work of medium demand with restrictions. From this testimony and the above facts, ALJ Blucher concluded that Plaintiff retained the ability to perform her past work as a home health provider, as well as other work indicated by the vocational expert, but not to exceed medium work with restrictions. In light of this conclusion, ALJ Blucher found that Plaintiff was not disabled.
Mr. Fatzinger concluded that Plaintiff would be able to perform work as a "cashier, ticket office, parking lot, self-service gas station . . . [s]urveillance TV monitor . . . [c]ompact assembler, dial maker, lampshade assembler."
The ALJ indicated that Plaintiff retained the residual functional capacity to "perform medium work or work which involves lifting and carrying fifty pounds occasionally and twenty-five pounds frequently, occasional bending and stooping, and should avoid places where alcohol is available and where there is extensive dirt, dust, fumes, gases or odors. In addition . . . the claimant would have the concentration of an average person, is capable of modest contact with others, but should avoid high stress work." The ALJ also concluded that Plaintiff's past work as a home health provider was included in the definition of medium work with restrictions.
III. Analysis
Plaintiff has objected to the Magistrate Judge's Report and Recommendation. Magistrate Judge Nowak found ALJ Blucher's conclusions to be supported by substantial evidence, indicating that Plaintiff was not disabled and recommending that Plaintiff's claim be denied. When a party objects to a Magistrate Judge's Report and Recommendation, the District Court conducts a de novo review. See 28 U.S.C. § 636(b)(1). Such a review means that the Court will examine the entire record and will make an independent assessment of the law. When examining the Commissioner's decision to deny disability insurance benefits, the Court is limited to a determination of whether substantial evidence supports the Commissioner's decision and whether the Commissioner applied the proper legal standards in evaluating the evidence. Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995). "Substantial evidence is more then a scintilla, less then a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). When substantial evidence supports the Commissioner's findings, those findings are conclusive and must be affirmed. Martinez, 64 F.3d at 173. Four elements of proof are weighed by the Court when determining whether substantial evidence supports the ALJ'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. Id. at 174. While a de novo review may result in an alternative conclusion, conflicts in the evidence are to be resolved by the Commissioner. Id.
The Social Security Administration has set forth a five-step process to evaluate disability claims. 20 C.F.R. §§ 404.1520, 416.920. Initially, the Commissioner must determine whether the claimant is currently employed in substantial gainful activity. If so, the claimant is not disabled. Secondly, the Commissioner must determine whether the claimant's impairment is severe. If the impairment is not severe then the inquiry into the disability is terminated. The third step requires the Commissioner to compare the severe impairment with those on a list of specific impairments. If the claimant's impairment meets or medically equals one of the listed impairments, the plaintiff is disabled. However, if the impairment is not on the list, the Commissioner in the fourth step must review the claimant's residual functional capacity, along with the demands of her past work. If the Commissioner finds that the claimant cannot return to her past work, the Commissioner must then, in the fifth step, examine the claimant's ability to do other work, taking into account her residual capacities, age, education, and work experience.
The claimant bears the burden of proof at the first four steps of the analysis. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). However, once the claimant has shown that she is unable to perform her previous work, the burden of proof shifts to the ALJ to set forth other substantial gainful employment that the claimant not only is physically able to perform but also able to maintain for a significant period of time. Watson v. Barnhart, 288 F.3d 212, 217 (5th Cir. 2002). If the ALJ adequately sets forth alternative employment, the burden shifts back to the claimant to prove that she is unable to perform the alternative work. Id.
Under this analysis, ALJ Blucher found Plaintiff not to be disabled at step four. Under step one the ALJ found that Plaintiff had not engaged in substantial gainful employment since the date of her disability application. Pursuant to steps two and three the ALJ found the complaints of Plaintiff (anger, depression, back pain, anxiety, asthma, and fibromyalgia) severe, but did not find them severe enough to meet or medically equal one of the impairments listed in the regulations. Based upon the subjective testimony of Plaintiff, available medical evidence and testimony of the vocational expert, ALJ Blucher determined that Plaintiff had the residual functional capacity to perform light to medium work with restrictions. ALJ Blucher concluded that the abilities of Plaintiff enabled her to perform not only her past job as a home provider but also to engage in other work found in significant numbers in the national economy and that therefore Plaintiff was not disabled.
Though Plaintiff complains the ALJ erroneously determined that her impairments did not meet or medically equal the listed impairments under the Code of Federal Regulations, this Court finds that the ALJ's decision is supported by substantial evidence. See Appendix 1, Subpart P, 20 C.F.R. Part 404. While Plaintiff contends that she has met the requirements of section B of the Code of Federal Regulations in satisfying three out of the four required elements — marked restriction of activities of daily living, marked difficulties in social functioning and marked difficulties in maintaining concentration, persistence or pace — the record does not support Plaintiff's subjective evaluation of her condition. Plaintiff therefore does not meet the section B requirements and cannot establish a disability under this regulation.
Under the Code of Federal Regulations an affective disorder meets the required level of severity when either both section A and B requirements are satisfied or section C requirements are satisfied. See Appendix 1, Subpart P, 20 C.F.R. Part 404. It has been established that Plaintiff's condition meets part A of the Regulations and Plaintiff has conceded that her disorder does not satisfy section C of the Regulations. Therefore, the only issue in dispute is whether Plaintiff's depression meets section B of the Regulations in combination with part A to satisfy step three. To satisfy section B the Plaintiff must show at least two of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence or pace; repeated episodes of decompensation, each of extended duration. Plaintiff in this case has not met the requirements of section B to establish a disability.
Plaintiff claims reversible error per se due to ALJ Blucher's failure to take action in resolving an alleged discrepancy between the consultative examination of Dr. Perches and Plaintiff's treating physicians' opinions over a period of time. However, Plaintiff has the burden of proving her disability by establishing a physical or mental impairment. See Cook v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985). If Plaintiff is not able to provide sufficient medical evidence, the ALJ may make a decision based upon the information available. 20 C.F.R. § 404.1516 (1989). While a consultative examination may be necessary to develop a full and fair record, it is not required. Id. § 404.1517. The decision to require an examination is within the discretion of the ALJ. Jones v. Bowen, 829 F.2d 524, 526 (5th Cir. 1987). ALJ Blucher had discretion to rely upon the findings of Dr. Perches, even though they were contradictory to the treating physicians' reports.
Plaintiff also claims that subjective evidence of a disability is sufficient and conclusive to establish a disability. While the ALJ must consider subjective evidence of the claimant's pain, Scharlow v. Schweiker, 655 F.2d 645, 648 (5th Cir. 1981), it is within his discretion to determine the pain's disabling nature. See Jones v. Heckler, 702 F.2d 616, 621-22 (5th Cir. 1983). These determinations by the ALJ are entitled to considerable deference. James v. Bowen, 793 F.2d 702, 706 (5th Cir. 1986). However, mere testimony and subjective reporting by the plaintiff alone without supporting medical evidence cannot by itself establish a disability. See 20 C.F.R. § 416.928(a). While a claimant's assertion of pain or other ailments must be considered by the ALJ, the Social Security Disability Benefits Reform Act of 1984 requires that the claimant produce objective medical evidence of a condition which establishes a disability. A plaintiff's subjective complaints must be corroborated, at least in part, by objective medical testimony. See Wren v. Sullivan, 925 F.2d 123, 128-129 (5th Cir. 1991); 20 C.F.R. § 416.908. Furthermore, subjective evidence of depression will not take precedent over conflicting medical evidence. See Jones v. Heckler, 702 F.2d at 621 n. 4. Therefore, Plaintiff's subjective testimony as to her limited or non-existent daily functioning, inability to concentrate, marked difficulties in social functioning, poor history of personal relationships, and impairment of attention and concentration is insufficient to support a conclusion that Plaintiff is disabled.
Plaintiff also contends that she is disabled due to the limited or non-existent functioning of her daily adaptive activities, such as cleaning, shopping, cooking, taking public transportation, paying bills, and caring for her hygiene. This claim is also not supported by sufficient medical evidence. For example, Dr. Perches concluded that although Plaintiff had no interest in performing daily activities, she is able to perform these daily adaptive activities. While Dr. Perches did find that Plaintiff suffers from a mood disorder, Dr. Perches indicated that the prognosis for Plaintiff's recovery was good and gave her a Global Assessment of Functioning (GAF) rating of 70. Additionally, situational depression that is not due to a mental impairment, as well as conditions controlled by medication, are not disabling and insufficient to establish a disability. See Jones v. Bowen, 829 F.2d at 526 (finding the claimant's reports of emotional distress and depression due to inability to work insufficient to meet the claimant's burden of proving non-exertional mental impairment); Fraga v. Bowen, 810 F.2d 1296, 1305 (5th Cir. 1987) (holding mere sensitivity about the loss of ability to perform certain chores does not meet the level of mental and emotional impairment as defined by SSA regulations). Despite Plaintiff's contention that limited or non-existent functioning of daily adaptive activities is sufficient to establish a disability, the record supports the ALJ's contention that Plaintiff's conditions are not disabling.
Global Assessment of Functioning (GAF) is a rating system intended for use by mental health professional in planning and measuring the effectiveness of treatment. The scale is divided into overall ranges of functioning. The lowest rating of functioning is 1 and the highest is 100. A GAF rating by a mental health professional of 51-60 indicates moderate symptoms or moderate difficulty in functioning. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDER (DSMIV-TR) 32, 34 (4th ed. 2000).
There is also evidence in the record that, both before and after the onset of Plaintiff's alleged disability, Plaintiff was solely able to care for her dying father. See Fraga, 810 F.2d 1306 n. 11 (holding that the ability to work despite a pre-existing condition supports the ALJ's finding of no disability).
Plaintiff also asserts that medical testimony as to the severity of Plaintiff's depression is conflicting. Though physician evaluations of Plaintiff's level of functioning (GAF score) over the specified time period have ranged between 45 to 70, Plaintiff has been primarily assigned a GAF of 50 or above. The record therefore does not reflect a conflict as to the levels of Plaintiff's depression such that a new hearing or evaluation is needed.
Lastly, Plaintiff asserts that despite the lack of physician testimony labeling her as "disabled," physician testimony alone is not conclusive of a disability. While physician testimony is not conclusive, it is helpful in determining disability. Subjective belief alone is not sufficient to establish a disability. See Harper v. Sullivan, 887 F.2d 92, 97 (5th Cir. 1989) (finding that substantial evidence supported the ALJ's findings where the only evidence of disability was the claimant's subjective complaints and where no physician on record stated the claimant was disabled).
The record indicates that Plaintiff is able to return to and carry out past work and other alternative forms of employment found in significant numbers in the national economy. Since Plaintiff has offered no evidence that she is incapable of performing other work that the ALJ found available to her, Plaintiff has failed to meet her burden under the five step disability test. Selders v. Sullivan, 914 F2d 614, 618 (5th Cir. 1990). The mere presence of some impairment is not disabling per se, therefore Plaintiff must show that she is so functionally impaired by the disability that she is unable to perform any substantially gainful activity. Hames v. Heckler, 707 F.2d 162, 165 (5th Cir. 1983). Because substantial evidence supports the ALJ's decision that Plaintiff was able to perform her past work and other work in the economy, the Court denies Plaintiff's claim.
IV. Conclusion
Plaintiff seeks review of the decision to deny her disability benefits. Plaintiff argues that the ALJ improperly determined that her impairments did not meet or medically equal the listed impairments under the Code of Federal Regulations. The ALJ has discretion to determine the disabling nature of Plaintiff's complaints. In this case, the record is lacking sufficient medical evidence to establish a disability. While the ALJ must consider Plaintiff's reports of pain, subjective complaints alone are insufficient to establish a disability, as depression itself is not per se disabling. Furthermore, mild mental impairments and situational depression are inadequate to establish a disability. Therefore, the Court finds that the ALJ's decision was supported by substantial evidence. The Report and Recommendation of United States Magistrate Judge Nowak is ACCEPTED and Plaintiff's claim is DENIED. The Clerk of the Court is directed to enter judgment in favor of the Commissioner.