Opinion
No. SA-00-CA-1551 OG (NN)
June 21, 2002
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
TO: ORLANDO L. GARCIA, United States District Judge
I. Introduction
Plaintiff/Claimant Carmen Sanchez, through her motion for summary judgment, challenges the administrative denial of her application for Title II disability insurance benefits (DIB) and Title XVI supplemental social security income (SSI) benefits made on September 2, 1998. Plaintiff argues that the Administrative Law Judge's ("ALJ") decision is not supported by substantial evidence and fails to comport with relevant legal standards. In particular, plaintiff contends that the ALJ' s assessment of her residual functional capacity ("RFC") is legally and factually flawed because the ALJ failed to consider her psychological impairments in combination with her other physical impairments. In addition to the plaintiff's substantive challenges to the ALJ's decision, plaintiff has filed a motion for remand based on a subsequent award of SSI benefits.After having considered plaintiff's motion for summary judgment, the defendant's brief in support of the Commissioner's decision, the transcript of the Social Security Administration ("SSA") 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 appeal, through the filing of the instant lawsuit in federal court, should be dismissed. In my opinion, the ALJ's finding of no disability is supported by substantial evidence and comports with the applicable legal standards. Likewise, it is my recommendation that plaintiff's motion for remand be denied because the subsequent award of benefits does not constitute "new evidence" warranting a remand in this case. The reasons behind my recommendations are set forth more fully below.
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.
Docket Entry 10.
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 application for SSI benefits on September 2, 1998. In that application, plaintiff claimed that she has been disabled since September 17, 1993 due to a work-related injury, which resulted in back injury and related leg pain. The SSA denied plaintiff's application both initially and on reconsideration. Plaintiff then requested a hearing before an ALJ and the same was held on August 20, 1999.
Transcript at 90 93.
Id. at 59-69.
Id. at 70.
At the hearing, plaintiff appeared represented by counsel. In addition to plaintiff's testimony at the hearing, the ALJ also heard the testimony of a medical expert as well as that of a vocational expert. The ALJ rendered his decision on plaintiff's application on September 15, 1999, concluding that plaintiff was not disabled as defined by the Act at any time through the date of the decision — that is, from plaintiff's September 2, 1998 application through the date of the ALJ's decision. Specifically, the ALJ found that while plaintiff was not able to return to her past relevant work experience as a short order cook/cashier, she could still perform a range of sedentary work.
Id. at 8-17.
Plaintiff requested review of the ALJ's decision to the Appeals Council, and in doing so, submitted additional medical evidence in support of her request. The Appeals Council, nevertheless, denied plaintiff's request for review on October 20, 2000, making the determination of the ALJ the final decision of the Commissioner. This appeal ensued.
Id. at 4-6 422-29.
Id. at 4.
IV. Issues Presented
1. Whether substantial evidence supports the ALJ's decision that plaintiff was not disabled under the Act?
2. Whether a remand is warranted, based on plaintiff's subsequent award of benefits?
V. Standard of Review
In reviewing the Commissioner's decision denying disability insurance benefits, I am limited to a determination of whether the decision is supported by substantial evidence 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.If the Commissioner's findings are supported by substantial evidence, they are conclusive and must be affirmed. In applying the substantial evidence standard, I must carefully examine the entire record but must 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 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, 67 F.3d at 555; Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990) ("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.
VI. The ALJ's Findings and the Plaintiff's Challenges
At the time of the administrative hearing, plaintiff was forty-two years old. She had attained schooling through the eleventh grade, and from the onset date of her alleged disability in 1993, had not engaged in "substantial gainful activity." Plaintiff testified she had not received any vocational training and that prior to her work-related injury, her past relevant work experience was that of a fast food cook/cashier. In her capacity as a fast food cook/cashier, she engaged in work activities that included: cooking, stocking, lifting, serving, sweeping, mopping, and cleaning up, among others. According to her application for SSI benefits, filed September 2, 1998, plaintiff claims she is totally disabled and unable to work since her work-related injury occurring on September 17, 1993, which left her suffering from back disorders and pain. Although not mentioned in her application for benefits, plaintiff testified at the hearing that she suffers from depression, obesity, swollen limbs and constant pain that interferes with her ability to sleep at night. I will at this point proceed to discuss the medical and other objective evidence considered by the ALJ in determining the impact of plaintiff's main conditions for which she presumably claims disability.Back Disorders and Related Pain
Regarding plaintiff's alleged back disorders and related pain, the ALJ found that according to the medical evidence, her back disorders caused more than minimal interference in her ability to perform work activity. Nevertheless, he found that plaintiff's impairments did not meet or equal an impairment or combinations of impairments listed in the Commissioner's Listing of Impairments Appendix 1, Subpart P, regulations No. 4. The ALJ then proceeded to thoroughly discuss each one of the medical reports contained in the record. In discussing the medical evidence relating to plaintiff's back disorders, the ALJ began his analysis by noting the post myelogram CT scan conducted on plaintiff on August 5, 1996. This exam indicated that plaintiff had an herniation at L5-S1 disc. Further medical evidence revealed that after conservative measures failed in successfully treating plaintiff's herniated disc, Dr. Rafael Parra, plaintiff's treating physician, performed on October 22, 1996, a lumbar laminectomy and facetectomy in order to remove plaintiff's herniated disc. A post-surgery follow up visit with Dr. Parra on January 28, 1997, noted that plaintiff was encountering paravertable muscle spasms with limitation on the back in lateral and forward positions. Despite plaintiff's muscle spasms noted on that day, her neurological evaluation was normal and Dr. Parra advised plaintiff that it was imperative that she lost weight to relieve some of the strain off her lower back. Dr. Parra also referred plaintiff to a physical therapist for a functional assessment.
Transcript at 12.
Id. at 12-14.
Herniation is a protrusion of an anatomic structure from its normal anatomic position. STEDMAN'S MEDICAL DICTIONARY 814 (27th ed. 2000).
Transcript at 12(citing to Exhibit 116).
Laminectomy is an excision of a vertebral lamina (a layer). STEDMAN'S MEDICAL DICTIONARY 964 (27th ed. 2000).
Facetectomy is an excision of a facet (a small smooth area on a bone or other firm structure). STEDMAN'S MEDICAL DICTIONARY 638 (27th ed. 2000).
Transcript at 12 (citing to Exhibit 112).
Paraverterbral means alongside or the vertebral column. STEDMAN'S MEDICAL DICTIONARY 1315 (27th ed. 2000).
Transcript at 12.
Id. (citing to Exhibit 161).
The functional assessment was performed by physical therapist Carolina Ty Reyes on February 27, 1997. Since Ms. Reyes found plaintiff able to lift 20 pounds maximum, she determined that plaintiff retained the capacity to perform at the light exertional level. Ms. Reyes noted, however, that pain associated with her back condition precluded plaintiff from performing squatting tasks and engaging in repetitive bending. Dr. Parra's notes from May 6, 1997, revealed that while plaintiff had a sedimentation rate of 38 (a normal rate is less than 20), her bone scan was nevertheless normal.
Id.
Id. (citing to Exhibit 149).
On September 3, 1997, Dr. Parra performed a puncture of several cysts of the lumbar spine and began plaintiff on a course of physical therapy. Based on the notes of record, it appeared that from the very beginning plaintiff was resolute to not follow the prescribed physical therapy.
Id. at 13.
For instance, a physical therapist's note dated December 3, 1997 stated that plaintiff: "[s]eems a little resentful about having to come to therapy or do her exercises." A second note dated December 17, 1997, stated: "[o]bviously this patient has a very busy . . . and social calendar with non-compliance to [physical therapy] and out of town vacation." Another note from plaintiff's physical therapist written on January 13, 1998, indicated the claimant had attended only eight physical therapy sessions between November 25 and December 18, 1997, ". . . [w]ith no real progress [and] non-compliance by this [patient]."
Id. (citing to Exhibit 234).
Id. (citing to Exhibit 237).
Id. (citing to Exhibit 239).
On March 18, 1998, plaintiff underwent a consultative examination performed by Dr. Aaron Combs, at the request of the Texas Workers' Compensation Insurance Fund. Dr. Combs noted that plaintiff complained of back pain. Plaintiff's physical examination revealed that her back was spastic and tender but did not have gross atrophy or swelling. Significantly, after reviewing plaintiff's March 19, 1997 X-rays and MRI report that proved to be negative for herniated disc or neurological impingement, Dr. Combs concluded: "claimant's condition is compatible with a release to work at a light to moderate duty level with no repetitive lifting greater than 20-30 pounds." On April 2, 1999, plaintiff underwent an MRI of her lumbar spine which showed no evidence of epidural abscess or disc herniation but did show that there was facet joint hypertrophy at L3-4, L4-5 and L5-S, worse at L4-5. This hypertrophy, which was related to the removal of plaintiff's herniated disc, did not appear to impose any significant limitations on plaintiff's exertional abilities to perform light to medium work.
Id. at 173 174.
Id. at 175.
Id.
Id.
Id. at 13 (citing to Exhibit 250).
Id.
In summary, the ALJ did not find any X-ray's, MRIs, CT scans, myelography or electromyography that indicated the actual presence of crushed, herniated, or dislocated discs. Furthermore, there was no indication of significant joint space narrowing, bony destruction, gross anatomical deformity and no positive serologic test for rheumatoid factor or antinuclear antibodies.
Id.
Id. at 13-14.
A medical expert, who reviewed the petitioner's medical history, testified at the hearing that since plaintiff's laminectomy on October 21, 1996, her MRIs showed no evidence of disc problems. Thus, the medical expert concluded that plaintiff was not disabled because her impairment(s) did not meet nor were medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4. The medical expert testimony at the hearing was consistent with the State agency medical consultants, who in reviewing the plaintiff's medical records, also concluded that plaintiff was not a disabled individual under the Act.
Id. at 15.
Id. For instance, the listings in question were: 1.05(c), 12.04, and 9.09. After reviewing the requirements of those listings, however, the ALJ concluded that plaintiff did not meet any of them. Id. at 16.
Id.
The ALJ also considered the plaintiff's hearing testimony concerning pain and other symptoms. For instance, the ALJ noted plaintiff's testimony that she had not worked since her work-related injury on September 17, 1993. It was the ALJ's opinion that plaintiff primarily attributed her inability to work to her alleged severe back pain caused by her work injury. As to her physical abilities, the ALJ noted plaintiff's testimony that she was unable to stand for a long period of time nor sit continually in the same position for more than 15-30 minutes. With respect to her balance, she testified that she always has to hold onto something even when she goes to the restroom. Plaintiff in addition testified that she cannot lift or bend the way she used to and that her back pain interfered with her ability to sleep at night. According to her testimony, plaintiff does not attend church because her back pain precludes her sitting, standing and kneeling Plaintiff testified that three of her four adult sons live with her and that they help her with some of her daily activities and household chores. Despite all of the limitations plaintiff testified to, the ALJ gave substantial weigh to plaintiff's own testimony that she can occasionally drive her car, buys groceries on her own, does the laundry, and thoroughly cleans her room twice every week. Adjustment Disorder/Depression
Id. at 33.
Id. at 34, 36.
Id. at 36 37.
Id. at 34.
Id.
Id. 38 39.
Id. at 13, 35 39.
While not mentioned in her application for benefits, plaintiff stated at the hearing that her depression renders her totally disabled and unable to work. The ALJ in that regard considered the September 5, 1995 psychological evaluation plaintiff relied upon in support of her position that she suffers from a disabling mental impairment. This was the only psychological evaluation made part of plaintiff's medical evidence.
In that evaluation, a psychologist by the name of Johnny Johnson, gave plaintiff a preliminary diagnosis of suffering from an adjustment disorder with mixed disturbance of mood and conduct. Dr. Johnson further found that she had a Global Assessment of Functioning ("GAF") of 35-40. The ALJ nevertheless found that these symptoms were not present during the relevant time period for purposes of her 1998 application for SSI benefits, nor were they present at the hearing. For that reason, the ALJ determined that Dr. Johnson's preliminary diagnosis, given in 1995, was not controlling of her current medical status, four years after the evaluation was conducted. Further, as noted by defendant, Dr. Johnson's preliminary diagnosis was inconsistent with his own contemporaneous medical records, thus, diminishing the credibility of his findings before the ALJ. In addition, the ALJ gave weight to the medical expert's testimony that also noted that since there was only one psychological record on file, from 1995, and plaintiff had not provided any evidence that since that evaluation, she began following a consistent treatment for her alleged mental or psychological impairments, the medical expert concluded that the plaintiff did not have an impairment that met or was medically equal to any one of the Listings. Furthermore, the State agency medical consultants reviewed the evidence of record and found that plaintiff's mental disorder/depression did not render her disabled under the Act.
Id. at 15. The GAF is a rating intended for use by mental health practitioners with respect to planning treatment and tracking the clinical progress of an individual in global terms, using a single measure. DIAGNOSTIC AND STATISTICAL MANUEL OF MENTAL DISORDER 30 (4th ed. 1994).
In 1995, plaintiff was referred by Dr. Geibel for a psychological evaluation because she was complaining of feeling pressure from her kids, pressure form her housework, inability to perform sexually in a way she would like, feeling disabled and not liking it, feeling depressed frequently, and in general just extremely stressed. Transcript at 356.
Id. at 14.
Id. at 15.
Significantly, the ALJ found no evidence of consistent psychological treatment by prescription or otherwise. Based on his assessment of objective medical facts, diagnoses and opinions of treating and examining physicians, the plaintiff's subjective testimony concerning her disabling pain, and her age, education and work experience, the ALJ reached the following findings:
1. The claimant has not engaged in substantial gainful activity since September 17, 1993.
2. The medical evidence establishes that the claimant has severe disorders of the back but she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulation No. 4.
3. The claimants statements regarding severe pain and the limitations imposed by her diagnosed medical impairments that prevent her from performing any work activity are found not to be credible.
4. The claimant has the residual functional capacity to perform the physical exertion and nonexertional requirements of work except for no climbing of ropes, ladders, or scaffolds, occasional but not repetitive climbing of stairs and ramps, balancing, stooping, kneeling, crawling or crouching. No even moderate exposure to cold, heat, wetness, humidity, vibration, and all exposure to hazardous machinery ( 20 C.F.R. § 416.945).
5. The claimant is unable to perform her past relevant work as a fast food cashier cook or cashier.
6. The claimant is 42 years old, which is defined as a younger individual ( 20 C.F.R. § 416.964).
7. The claimant does not have any acquired work skills which are transferable to the skilled or semiskilled work functions of other work ( 20 C.F.R. § 416.968).
8. Based on an exertional capacity for sedentary work, and the claimant's age, education, and work experience, section 416.969 of Regulations No. 16 and Rules 201.24 and 201.25, Table No. 1, Appendix 2, Subpart P, Regulations No. 4 would direct a conclusion of "not disabled".
9. The claimants's capacity for the full range of sedentary work has not been significantly compromised by additional nonexertional limitations. Accordingly, using the above-cited Rules 201.24 and 201.25 as a framework for decision making, the claimant is not disabled.
10. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision ( 20 C.F.R. § 416.920(f))
Transcript at 16-17.
While not specifically delineated in her brief, plaintiff appears to base her appeal of the ALJ's September 15, 1999 decision on four main grounds: (1) whether the ALJ erred when he rejected the 1995 psychological evaluation of plaintiff's mental state; (2) whether the ALJ erred in evaluating plaintiff's subjective testimony of disabling pain; (3) whether the ALJ erred in his assessment of plaintiff's RFC and (4) whether the ALJ failed to meet his burden at Step Five of the sequential evaluation process.
Docket Entry 12, at 1-11.
The defendant has filed a brief in support of the Commissioner's decision, arguing that the ALJ used the correct legal standard in determining that plaintiff's objective medical evidence did not support plaintiff's testimony concerning the disabling nature of her depression. In that regard, the defendant contends that the ALJ properly weighed the 1995 psychological evaluation, finding it not determinative of plaintiff's current mental state. The ALJ's decision regarding the 1995 evaluation was furthered supported by the undisputed evidence that plaintiff did not seek nor follow a consistent psychological/mental treatment plan. Further, defendant argues that the ALJ's assessment of plaintiff's testimony concerning pain is supported by substantial evidence. The objective medical evidence considered by the ALJ on this issue, according to defendant, demonstrated that plaintiff retained the RFC to perform a range of sedentary work. Accordingly, the ALJ found that plaintiff's testimony was credible to the extent it comported with the objective medical evidence of record. And finally, defendant argues that the ALIT fully met his burden of proof at Step Five of the sequential evaluation process, when in considering plaintiff's RFC, the ALJ determined that plaintiff while not able to perform her prior relevant work, was nevertheless able to perform other available work at the sedentary level.
For the reasons discussed below, and particularly based on those articulated by the defendant in support of the Commissioner's decision, it is my opinion that plaintiff's challenges to the ALJ's decision are not supported by the record. Indeed, it is my recommendation that the Commissioner's adoption of the ALJ's findings as its final decision be affirmed on the grounds that the findings were supported by substantial evidence and were entered in accordance with the applicable legal standards.
VII. Analysis
Plaintiff's main contention is that the ALJ erred by finding she can perform some
sedentary work with some exertional limitations. Plaintiff posits that had the ALJ considered the combined effect of all of her impairments, particularly her mental impairments, he would have concluded otherwise. That is, the ALJ would have found that plaintiff is unable to perform any gainful employment, not even at the sedentary level. Because plaintiff argues that the ALJ's decision is not supported by substantial evidence, she requests that it be reversed and that she be awarded SSI benefits. Alternatively, plaintiff requests that the case be remanded to the SSA for further proceedings so that an ALIT could properly consider her psychological profile and other relevant vocational issues. Before analyzing each of the plaintiff's challenges, an overview of the applicable legal principles is warranted.
Docket Entry 12, at 3-10.
Id. at 10 11.
A. Entitlement to Benefits
Every individual who is insured for disability insurance benefits, has not attained 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 12 months. An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage 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 immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
§§ 1382c(a)(3)(A) 423(d)(1)(A).
§ 1382c(a)(3)(B).
B. 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.
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The First Step of the sequential evaluation process involves determining whether the claimant is currently engaged in substantial gainful activity. If so, the claimant will be found not disabled regardless of his medical condition or his age, education, and work experience. The Second Step of the process 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 age, education, and work experience. If the impairment is not on the list, the Commissioner, in the Fourth Step, reviews the claimant's residual functional capacity and the demands of his past work. If he can still do this kind of work, he is not disabled. If he cannot perform his past work, the Commissioner moves to the Fifth and final step of evaluating the claimant's ability, given his residual capacities and his age, education, and work experience, to do other work. If he cannot do other work, he will be found to be disabled. The claimant bears the burden of proof at the first four steps of the sequential analysis. Once he has shown that he is unable to perform his previous work, the burden shifts to the Commissioner to show that there is other substantial gainful employment available that claimant is capable of performing. If the Commissioner adequately points to potential alternative employment, the burden then shifts back to the claimant to prove that he is unable to perform the alternative work.
Id. at 564.
Anderson v. Sullivan, 887 F.2d 630, 632 (5th Cir. 1989).
Id. at 632-33.
In this case, the ALJ reached his decision at Step Five of the sequential evaluation process. That is, he found that plaintiff could perform work that existed in significant numbers in the national economy that was consistent with her medically determined impairments. In reaching his decision, the ALJ primarily relied on the fact that plaintiff had been medically released to perform light work; work requiring more physical exertion than what he found plaintiff capable of doing. The ALJ also considered the testimony of a medical expert as well as that of a vocational expert in meeting his burden. Having said that, however, I will proceed to address plaintiff's four points of error.
Transcript at 21.
Id. at 12.
C. Discussion of Plaintiff's Points of Error
1. Whether the ALJ erred when he rejected the psychological evidence concerning plaintiff's mental state?
Plaintiff challenges the ALJ's finding that she does not have a severe mental impairment. Plaintiff contends that the ALJ erred in his finding because he rejected Dr. Johnson's 1995 psychological evidence without giving any rationale. Contrary to the ALJ's findings, plaintiff argues that objective medical evidence establishes that she has been diagnosed with adjustment disorder with mixed disturbances of mood and conduct, has a GAF of 35-40, and has been suffering from depression for a long period of time. Morever, plaintiff alleges that Dr. Johnson, in his 1995 psychological evaluation of the plaintiff found her to have a major impairment in the areas of judgment, mood and thinking with "speech illogical, obscure, or irrelevant." According to plaintiff, because her depression and mood disorder, taken in combination with her other exertional impairments, cause severe limitations in her ability to perform work related activities, it was an error for the ALJ to find that plaintiff did not have a severe mental impairment. I disagree.
Docket Entry 12, at 6.
Id. (citing to Transcript at 14).
Docket Entry 12.
Based upon plaintiff's hearing testimony and the medical evidence submitted in support of her claims, dated September 5, 1995 to August 24, 1999, the ALJ found that there was no indication that claimant had a discernible severe mental impairment. According to plaintiff, she suffers from depression because in 1995, Dr. Johnson performed an initial diagnostic psychological evaluation and found plaintiff to suffer from an adjustment disorder with a mixed disturbance of mood and conduct. As the ALJ properly noted, besides the 1995 psychological evaluation conducted by Dr. Johnson, there was no other medical evidence at the time of the hearing that plaintiff ever had a mental disorder and/or that she was receiving consistent therapy or treatment for it. Plaintiff's reports of depression were sporadic and failed to incite any of her treating physicians to refer her to a psychologist or psychiatrist for treatment. In fact, the medical evidence does not reflect mental impairments so severe as to functionally restrict work activity requiring only simple, repetitive and routine tasks. A claimant seeking disability benefits on the basis of a mental impairment must present medical evidence that shows that her mental condition is a long-term problem and not just temporary.
Transcript at 12-14.
Docket Entry 12, at 9.
Singletary v. Bowen, 798 F.2d 818, 822 (5th Cir. 1986).
Furthermore, the medical records reveal that plaintiff had not sought any psychological treatment despite her complaints. If plaintiff's depressive state was as disabling as she alleges, she would have sought medical treatment within the relevant time period. According to Fifth Circuit case authority, the ALJ may consider the failure to seek and follow a regular course of treatment as an indication of non- disability. In addition, plaintiff did not mention a psychiatric or mental problem in her original request for benefits or at the hearing.
Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990).
Transcript at 93 109. As defendant noted, failure to mention a disabling mental impairment in the claimant's original request for benefits has been found to be significant proof that no such impairments exists. See Docket Entry 12 at 9 (citing Spradling v. Chater, 126 F.3d 1072 (8th Cir. 1997)).
Nevertheless, and contrary to plaintiff's contention, the ALJ did consider Dr. Johnson's psychological evaluation and the doctor's observation that plaintiff's GAF score was 35-40. However, the ALJ found that Dr. Johnson's conclusion was inconsistent with his own medical records and found Dr. Johnson's opinion leading to his diagnosis not to be credible. In fact, during plaintiff's 1995 psychological evaluation, Dr. Johnson reported that she was oriented in all three spheres, her cognition was within normal limits, and she seemed to understand the whole psychological evaluation process. Further, Dr. Johnson described that, for the last eight to ten years, she has been much more stable, she has been able to devote time to her children and has no overt suicide attempts. The ALJ found that because at the time of the hearing the plaintiff did not exhibit any impairments in the areas of judgment, mood, thinking and speech, impairments purposely found to be severely affected when Dr. Johnson conducted his evaluation of the plaintiff back in 1995, the evaluation was not indicative of plaintiff's present mental state.
Id. at 14-15.
Docket Entry 12, at 10.
Id. at 10.
In addition, the ALJ gave weight to the medical expert, who testified at the hearing that since the 1995 psychological evaluation was the only one on file, it was the medical expert's opinion that such evidence, without more, failed to establish that plaintiff currently had an impairment that met or was medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4. An ALJ is entitled to determine the credibility of medical experts and weigh their opinions accordingly. The ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion. The ALJ further remarked that although Dr. Johnson found plaintiff severely limited in her judgment, mood, thinking and speech abilities, the objective medical evidence performed at or near the time of his 1995 psychological evaluation, proved that plaintiff's mental state was otherwise normal.
Id. at 15.
Greenspan v. Shalala, 38 F.3d 232, 237(5th Cir. 1994), cert. denied, 514 U.S. 1120 (1995) (citing Scott v. Heckler, 770 F.2d 782, 785 (5th Cir. 1985).
Moore v. Sullivan, 919 F.2d 901, 905(5th Cir. 1990).
Transcript at 14.
Furthermore, as defendant notes, the 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.
Docket Entry 12.
20 CER. § 416.945.
Id.
Finally, the ALJ gave weight to the fact that the plaintiff's attorney at the hearing failed to request that a more recent psychological evaluation be performed. While it is the duty of the ALJ to ensure that the medical record of a claimant is complete, this duty is triggered when there is other objective medical evidence demonstrating the need for further medical testing. Such is not the case here. Besides plaintiff's contention that her mental state renders her totally disabled and unable to work, there is no evidence that plaintiff was under a consistent course of treatment for controlling her mental impairments or that she ever sought a medical specialist for the treatment of those conditions. Based on these findings, the ALJ's exclusion of any mental impairment (as none had been established by plaintiff) from plaintiff's RFC is supported by substantial evidence.
While plaintiff contends that she began taking medication to control her depression in 1999, such recent treatment is not determinative of whether plaintiff's mental impairment rendered her totally disabled under the Act.
2. Whether the ALJ erred in evaluating plaintiff's subjective testimony concerning her disabling pain?
As point of error two plaintiff posits that her allegations of severe back pain, leg pain, and inability to endure prolonged sitting were not given proper weight and credibility by the ALJ, and therefore, the ALJ's credibility determination is not supported by substantial evidence. Specifically, plaintiff claims that: the ALJ substantially misconstrued her testimony on the limitations her disabling pain poses on her daily activities; the ALJ's finding that plaintiff can perform a range of sedentary work is inconsistent with the ALJ's finding that she suffers from a severe back disorder and with recent medical evidence establishing that plaintiff cannot even do sedentary work; and the ALJ failed to properly apply the two step process mandated by Social Security Regulation 96-7p in assessing plaintiff's credibility on pain and other symptomatology. Plaintiff's position is not supported by the record. Contrary to plaintiff's allegations, the ALJ did not err in his assessment of plaintiff's credibility regarding her subjective complaints of pain.
Docket Entry 12 at 9.
Docket Entry 12.
SSR 96-7p delineates a two-step process the ALJ must follow in assessing the credibility of a claimant's statements regarding disabling pain. First, the adjudicator must consider whether there is an underlying medically determinable physical or mental impairment(s) that can be shown by medically acceptable clinical and laboratory diagnostic techniques that could reasonably be expected to produce the individual's pain or other symptoms. Second, the adjudicator must evaluate the intensity, persistence, and limiting effects of the individual's symptoms to determine the extent to which the symptoms limit the individual's ability to do basic work activities. For this purpose, whenever the individual's statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the adjudicator must make a finding on the credibility of the individual's statements considering the entire case record. Id.
In Falco v. Shalala, the Fifth Circuit 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).
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 lower back 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 a range of sedentary work.
See 20 C.F.R. § 404.1529 and 416.929; SSR-96-7p; and Transcript at 12-15.
Transcript at 15.
In addition, the ALJ considered the evidence of record regarding plaintiff's noncompliance with physical therapy and other prescribed treatment. Because plaintiff's compliance with treatment could have provided some relief to the plaintiff, the ALJ was correct in considering that evidence. Regarding plaintiff's failure to lose weight as advised by her physicians, the ALJ examined her physician's notes on December 1, 1998 which stated that "without losing weight, it will be impossible for her to improve (because losing excess weight would reduce the pressure on her lower back)." Plaintiff was not able to explain why she failed to lose weight as prescribed by her physician. As stated by the ALJ in his decision, federal regulations require plaintiff to follow prescribed medical treatment if the treatment can return her ability to work. If plaintiff does not follow the treatment without good cause, a finding of disabled cannot be rendered in the case.
Id. at 13-14 170-72, 178, 214-15 228-29. It was undisputed that at the time of the hearing, plaintiff had gained weight instead of losing weight.
Id. at 14 (citing to 20 C.F.R. § 416.930).
In this case, medical records show that plaintiff did not follow her physician's instructions to lose weight and exercise, showing instead that plaintiff gained nearly fifteen pounds, bringing her weight to 270 pounds on the date of the hearing. Indeed, the medical records demonstrate the lack of compliance with her doctor's advice and her unwillingness to change her dietary habits in order to lose weight. The Fifth Circuit has long held that a medical condition that surgery, treatment, or as here by dieting and exercising, can remedy is not disabling.
Id. at 23 145. In fact, the record showed that during the relevant time period, plaintiff's weight fluctuated between 240-270 pounds. This was a significant amount of weight considering that plaintiff is only five feet four inches tall.
Transcript at 14.
Johnson v. Bowen , 864 F.2d 340, 348 (5th Cir. 1988) (citing Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987)).
Regarding plaintiff's lack of compliance with physical therapy, the ALJ gave weight to a physical therapist's note dated December 3, 1997 which stated that plaintiff: "[s]eems a little resentful about having to come to therapy or do her exercises." A second note dated December 17, 1997, stated: "[o]bviously this patient has a very busy . . . and social calendar with noncompliance to [physical therapy] and out of town vacation." Another note from plaintiff's physical therapist written on January 13, 1998, indicated the claimant had attended only eight physical therapy sessions between November 25 and December 18, 1997, ". . . [w]ith no real progress [and] non-compliance by this [patient]."
Transcript at 13.
Id. (citing to Exhibit 234).
Id. (citing to Exhibit 237).
Id. (citing to Exhibit 239).
After considering the overwhelming evidence of record concerning plaintiff's lack of compliance with her prescribed treatment, consisting of physical therapy and weight loss, the ALT found that plaintiff's lack of compliance with prescribed treatment diminished the credibility of her testimony that her pain rendered her totally disabled. To that extent, the ALJ stated in his decision: "There are no extenuating factors that would prevent the claimant from compliance with prescribed physical therapy or loss of weight [but] merely her unwillingness to do so despite repeatedly admonishments by her treating physician." In my opinion, the ALJ's assessment of the credibility of plaintiff's testimony concerning pain and other symptoms comported with the substantial evidence of record and were made in accordance with applicable relevant standards.
Id. at 14 (citing to 20 C.F.R. § 416.930).
Id.
3. Whether the ALJ erred in his assessment of plaintiff's RFC?
Despite plaintiff's arguments to the contrary, the ALJ properly addressed whether plaintiff was able to return to her past relevant work and her RFC. After having considered the hearing testimony provided by the plaintiff, a vocational expert and a medical expert, and after having considered the objective medical evidence of record, the ALJ determined that plaintiff, although released by her doctors to perform light to medium work, was unable to perform her past relevant work. Nevertheless, the ALJ found that plaintiff retained the RFC to engage in sedentary work.
Id. at 15-16.
Id. at 46-47 174.
According to the ALJ's decision, plaintiff's past relevant work, for example, required "repetitive use of both upper extremities at the light exertional level while walking and standing throughout all of each eight hour workday." Transcript at 12.
According to the federal regulations, sedentary work is defined as being able to lift ten pounds maximum, sit up to six hours and stand on occasion. The ALJ's findings concerning plaintiff's ability to work were even more restricting than those found by her physicians. The ALJ further noted that plaintiff's ability to engage in sedentary work was limited by the following restrictions: "no climbing of ropes, ladders or scaffolds, occasional but not repetitive climbing of stairs and ramps, balancing, stooping, kneeling, crawling or crouching. Not even moderate exposure to cold, heat, wetness, humidity, vibration and all exposure to hazardous machinery." The ALJ also gave weight to plaintiff's testimony that she is able to thoroughly clean her room twice a week, does the laundry, drives a car occasionally, does grocery shopping on her own and has no trouble using the telephone.
20 C.F.R. § 416.967(a) (2000).
Transcript, at 16.
Id. at 13, 35 39.
Accordingly, because in my opinion the ALJ considered all relevant factors in his assessment of plaintiff's RFC, this point of error should be overruled.
4. Whether the ALJ failed to meet his burden at Step Five of the sequential evaluation process?
Plaintiff's challenge that the Commissioner erred when he upheld the ALJ's decision to deny her benefits at Step Five of the sequential evaluation process is not supported by the record. As stated above, it is well-settled that 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 claimant is capable of performing. If the Commissioner adequately points to potential alternative employment, the burden then shifts back to the claimant to prove that she is unable to perform the alternative work.
Leggett, 67 F.3d at 564.
Anderson, 887 F.2d at 632.
Id. at 632-33.
A vocational expert who was present at the hearing testified with respect to plaintiff's ability to return to her past relevant work or to any other work. The vocational expert testified that plaintiff could not perform her past relevant work as a cook/cashier because of plaintiff's RFC. Plaintiff's past relevant work included tasks such as cooking, cleaning, and tending to customers. As such, the ALJ found that plaintiff was unable to perform her past relevant work as a fast-food cook or cashier, but he nevertheless found that plaintiff had the capacity to perform a range of sedentary work.
Transcript at 48-55.
Id. at 51.
Id. at 35.
Id.
Moreover, a review of the record reveals that the ALJ posed a hypothetical question to the vocational expert with at least two different variations. These hypotheticals included plaintiff's age, education, and work experience, as well as her impairment(s) and the related restrictions to her ability to work as determined by the ALJ. Significantly, the ALJ allowed plaintiff's counsel to correct any of the hypothetical scenarios given by the ALJ to the vocational expert or bring some additional factors of plaintiff's condition to the expert's attention. Plaintiff's attorney did not add any limitations to the plaintiff's exertional and/or non-exertional capabilities nor did he express any disagreement with the limitations recognized by the ALJ in his hypotheticals.
Id. at 48-52.
Id.
Id. at 52-55.
Id. at 49-55.
Accordingly, in response to the ALJ's hypotheticals, the vocational expert testified that plaintiff retained the ability to engage in substantial gainful employment as a food and beverage order clerk (described as an entry level, unskilled and sedentary position); ticket seller at a movie theater (described as an entry level, unskilled and sedentary position); and as a surveillance system monitor (also described as an entry level, unskilled and sedentary position).
Id.
Once the ALJ has met his burden of proof by identifying potential alternative employment that plaintiff retained the ability to perform, the burden of proof shifted back to the plaintiff to show that she is unable to perform the alternative work. After having considered the objective medical evidence and other evidence of record, the ALJ concluded that plaintiff failed to meet step five of the sequential evaluation analysis because, based on her RFC and vocational factors, she could perform a range of sedentary unskilled jobs that take her physical or exertional limitations into account.
Anderson, 887 F.2d at 632-33.
Transcript, at 16.
It must be noted that two months after the ALJ's decision, the plaintiff appeared to have undergone a series of aggressive treatments to relieve the exacerbating pain associated with her back problems. Despite the aggressive treatments, plaintiff's pain apparently continued to worsen, to the point that her treating physician at the time, Dr. Michael Murphy, regarded her as being unable to perform any work activity, not even at the sedentary level. It is my opinion that this evidence, does not in any way, affect the ALJ's decision, which was based on the plaintiff's medical history from 1995 through the date of the ALJ's decision in September of 1999. Indeed, at the time the ALJ considered plaintiff's medical evidence, his goal was to determine whether plaintiff's impairments rendered her totally disabled from the date she filed her application for benefits, on September 2, 1998 through the date of his decision, on September 15, 1999. Dr. Murphy's treatments, beginning in November of 1999 through August of 2000, do not change the ALJ's analysis of the evidence gathered within the relevant time period that was before him. Indeed, it is highly plausible that Dr. Murphy's aggressive treatments to relieve plaintiff's pain were considered by the SSA when on June 14, 2001, it rendered a favorable decision to the plaintiff, awarding her SSI benefits as of the date of her subsequent application for benefits. Plaintiff's subsequent application for benefits for which she received an award of SSI benefits is addressed at Section D of this Report below.
Id. at 424-29.
Docket Entry 18, at Exhibits A-B.
Based on the evidence of record at the time of his decision and the testimony adduced at the hearing, it is my opinion that the ALJ properly considered the combined effects of plaintiff's impairment in accordance with the regulations. The ALJ determined that plaintiff's combined impairments did not render her totally disabled under the Act, in that despite these impairments, she could still perform a range of sedentary work.
Id.
For these reasons, it is my recommendation that plaintiff's motion for summary judgment seeking a reversal of the ALJ's decision be denied . Plaintiff has failed to establish that the ALJ's factual and legal findings were not supported by substantial evidence or were otherwise contrary' to applicable legal standards.
D. Plaintiff's Subsequent Motion For Remand Based on New Evidence
Pursuant to the "judicial review" provision of the Act, 42 U.S.C. § 405(g), a district court may "at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." The Fifth Circuit has held that in order for the new evidence to be considered "material," it must satisfy two requirements: (1) it must relate to the time period for which disability benefits were denied; and (2) there must be a reasonable possibility that the new evidence would change the outcome of the Commissioner's decision had it been before him. Plaintiff's so-called "new evidence" fails to meet these two prongs.
See McQueen v. Apfel, 168 F.3d 152, 156 (5th Cir. 1999) and Haywood v. Sullivan, 888 E.2d 1463, 1473 (5th Cir. 1989) (both cases citing to 42 U.S.C. § 405(g)).
See Dorsey v. Heckler, 702 F.2d 597. 604-05 (5th Cir. 1983); Chancy v. Schweiker, 659 F.2d 676, 679 n. 4 (5th Cir. 1981); and Haywood, 888 F.2d at 1471 ("Implicit in the materiality requirement [is] that the new evidence relate to the time period for which benefits were denied, and that it did not concern evidence of a later-acquired disability or of the subsequent deterioration of the previously non-disabling condition.").
Plaintiff contends that the award of SSI benefits, which was made on an application she filed on November 9, 2000, is relevant in determining whether the September 15, 1999 ALJ decision was supported by substantial evidence and was entered in accordance with the applicable legal standards. In other words, plaintiff contends that the ALJ's September 15, 1999 decision on plaintiff's previous application should be remanded because she was approved for SSI benefits on a subsequent application. In my opinion, plaintiff's evidence does not warrant a remand.
The record reveals that based on her November 9, 2000 application for SSI benefits, the SSA awarded benefits on June 14, 2001. Plaintiff's subsequent award of benefits is not relevant to the time period made the basis of the ALJ's September 15, 1999 decision. Indeed, plaintiff's subsequent application for benefits had not even been submitted to the SSA at the time the ALJ rendered his decision. Specifically, such application was not filed until fourteen months after the ALJ rendered his decision made the basis of this appeal. Furthermore, while the Appeals Council affirmed the ALJ's decision on October 20, 2000, making the ALJ's decision the final decision of the Commissioner, the relevant time period was from the date of plaintiff's prior application for benefits (September 2, 1998), to the date the ALJ rendered his decision (September 15, 1999). Clearly, the subsequent award of benefits is for a period of time that was outside the scope of the ALJ's September 15, 1999 determination.
Docket Entry 18, at land Exhibits A-B.
As mentioned earlier, the ALJ's September 15, 1998 decision became the final decision of the Commissioner with respect to the plaintiff's application for SSI benefits filed on September 2, 1998.
Both parties agree that Title XVI 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 is from the date of plaintiff's prior application, on September 2, 1998, through the ALJ's decision, on September 15, 1999. Indeed, the Commissioner adopted the ALJ's decision as its final decision on plaintiff's September 2, 1998 application. Accordingly, plaintiff's subsequent award of benefits, based on her November 9, 2000 application, is a totally separate final administrative decision that relates to a different period of time than the one considered by the ALJ in his September 15, 1999 determination.
Docket Entry 19, at land Docket Entry 12, at 1-2. See Kepler v. Chater, 68 F.3d 387, 389 (10th Cir. 1995) ("[claimant] cannot receive benefits for any period prior to the filing of her application."); and 20 C.F.R. § 416.335.
See Transcript, at 17, where the ALJ limited the scope of his September 15, 1999 determination to the date by which plaintiff applied for benefits, namely, September 2, 1998.
At the most, as the Commissioner argues, the award of benefits for the November 9, 2000 application demonstrates that plaintiff's condition deteriorated after the September 15, 1999 decision. If a plaintiff's condition deteriorates, she is "free to file a new claim and attempt to prove that she became disabled" after the ALJ's decision. Presumably, that is what plaintiff did in this case. The disability determination on a subsequent application, however, is immaterial to plaintiff's condition as it existed on or before the date of the ALJ's decision on plaintiff's prior application. As such, plaintiff's argument fails to meet the materiality requirement of Section 405(g).
See Johnson v. Heckler, 767 F.2d 180, 183(5th Cir. 1985).
Haywood v. Sullivan, 888 F.2d 1463, 1471(5th Cir. 1989); Pierre v. Sullivan, 884 F.2d 799, 803 (5th Cir. 1989).
To meet the materiality requirement, the new evidence must relate to the time period for which benefits were denied, and "must not concern a later acquired disability or subsequent deterioration of a previously non-disabling condition." As I already discussed, plaintiff's new evidence is not relevant to the disposition of this case because it does not concern the limited time period under review.
Haywood, 888 F.2d at 1471.
The only issue before this court is whether plaintiff demonstrated through the filing of this suit that she was a disabled individual under the Act during the relevant time period, that is, from September 2, 1998 through September 15, 1999. As I have discussed in this Report, it is my recommendation that plaintiff's request for relief be denied because she has failed to meet her burden of establishing the existence of a disability within this period. Based on the foregoing, it is also my recommendation that plaintiff's motion for remand based on "new evidence" be
denied as well.
VIII. Recommendation
Based on my discussion, it is my recommendation that the court should DISMISS plaintiff's complaint and AFFIRM the Commissioner's decision. It is my opinion that the ALJ's decision is supported by substantial evidence and correctly applies the relevant legal standards. Therefore, to the extent that plaintiff in her brief filed July 19, 2001 has moved for summary judgment (Docket Entry 12) seeking a reversal of the ALJ's decision, that request should be DENIED in all respects. In addition, plaintiff's motion for remand based on new evidence, filed on October 1, 2001 (Docket Entry 18), should be DENIED and this matter should be DISMISSED WITH PREJUDICE.