Opinion
Case No. C-2-00-1333
March 13, 2002
OPINION AND ORDER
Plaintiff Constance J. Taylor brings this action under 42 U.S.C. § 405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security denying her application for supplemental security income benefits. This matter is before the Court on the parties' cross-motions for summary judgment.
Summary of Issues. Plaintiff Taylor alleges that she became disabled by asthma, emphysema, and psychological impairments on October 10, 1995, when she was 39 years old. She has never worked. The administrative law judge denied her application for supplemental security income benefits because she has the ability to perform light work that (1) involves only occasional bending, ramp climbing, or stairs climbing, (2) involves only simple, routine tasks, and (3) is performed in a low-stress environment.
Plaintiff argues that the decision of the Commissioner denying benefits should be reversed because:
Her pulmonary impairments meet or equal Listing 3.02 and 3.03.
There is not substantial evidence supporting the administrative law judge's finding that Ms. Taylor can perform jobs having sedentary exertional demands involving simple and routine tasks because Dr. Lennis Green, who performed a disability evaluation for the Commissioner, found that her ability to interact is moderately reduced; her judgment is terrible; her attention, concentration, pace and persistence are moderately reduced; her ability to withstand the pressures of daily work activity is moderately reduced; and she has poor coping skills.
Procedural History. Plaintiff Constance J. Taylor filed her application for disability insurance benefits on November 21, 1995, alleging that she became disabled on October 10, 1995, at age 39, by asthma and chronic bronchitis. The application was denied initially and upon reconsideration. Plaintiff sought a de novo hearing before an administrative law judge. On October 14, 1998, an administrative law judge held a hearing at which plaintiff, represented by counsel, appeared and testified. A vocational expert also testified. On January 26, 1999, the administrative law judge issued a decision finding that Ms. Taylor was not disabled within the meaning of the Act. On September 22, 2000, the Appeals Council denied plaintiff's request for review and adopted the administrative law judge's decision as the final decision of the Commissioner of Social Security.
Age. Education. and Work Experience. Constance J. Taylor was born October 10, 1956. She has a high school education, and she completed two quarters of college classes. She has no relevant past work experience.
Plaintiff's Testimony. The administrative law judge fairly summarized Ms. Taylor's testimony as follows:
[S]he has been treated for asthma since 1983 and [that] she last required hospitalization during November 1997. She stated that during an attack she coughs, becomes short of breath and afterward she feels tired. She testified that she uses an inhaler and an in home breathing machine, which seem to ease her breathing difficulties. She takes steroids on occasion. She also testified that she continues to smoke at least a pack of cigarettes a day.
The claimant also testified that she experiences depression and crying spells. She stated that Zoloft helps with the crying spells but seems ineffective for her depression. She reported that she experiences panic attacks, which also cause her to feel short of breath but that she is able to discern the difference from a panic attack and an asthma attack. The claimant testified that she and [her] husband have been separated for quite some time, and that she has three children who live with her. She reported that she does not belong to any clubs or participate in any social groups. The claimant stated that she spends most of her time in her room just thinking. She is able to wash dishes, do her laundry and pick up "messes." The claimant's 16 year old son does all the grocery shopping for the family.
The claimant reported that she had abused drugs and alcohol in the past, but her last illegal use of drugs was about 15 years ago and that she drinks beer on occasion.
(R. 17.)
Evidence of Record. The administrative law judge's decision fairly set out the relevant medical evidence of record. This Opinion and Order will only briefly summarize that evidence.
Physical Impairments. Plaintiff Constance J. Taylor was hospitalized with complaints of shortness of breath from October 10 through 14, 1995. The final diagnoses were acute exacerbation of chronic obstructive pulmonary disease and tobacco abuse. (R. 127.)
On January 8, 1996, Dr. Bryan N. Feldman, Ms. Taylor's treating general practitioner since May 1995, reported that plaintiff suffers from chronic obstructive pulmonary disease with acute exacerbations, emphysema, and chronic bronchitis. Dr. Feldman prescribed inhalers, an aerosol machine, and intermittent use of steroids. (R. 137.)
Ms. Taylor smokes one-half pack of cigarettes a day. Id. She has 3-pillow orthopnea. She awakens 6-8 times a night. (R. 138.) Even non-strenuous activities increase Ms. Taylor's shortness of breath. (R. 140.)
Ms. Taylor's effort was poor on the February 28, 1996 pulmonary function studies. There was poor curve reproducibility. The examiner concluded that Ms. Taylor suffered from "[a]t worse, totally reversible mild obstructive pulmonary disease." (R. 152.)
The record includes treatment notes covering August 31, 1995 through March 13, 1997 from the Masters Family Practice. (R. 168-73.) Ms. Taylor was first seen for complaints of chest pain and breathing troubles. She was treated throughout the period for chronic breathing problems, sinus congestion, nerves, sore throats, and coughs.
On September 30, 1997, Dr. James Knepler, Jr., a physician who performed a disability evaluation for the Commissioner, reported that Ms. Taylor had a 25-year history of smoking 3-4 packs of cigarettes a day. She was currently smoking one-half pack a day and trying to quit. (R. 261.)
On examination, Dr. Knepler found that plaintiff was emaciated. She was 5'2" tall and weighed 111 pounds. Dr. Knepler heard rhonchi throughout Ms. Taylor's lungs. There were occasional expiratory wheezes. Ms. Taylor was not using her accessory muscles to help her breathe. Id. X-rays of the lungs were normal. There were no infiltrates or congestion. (R. 268.)
Dr. Knepler made the following findings:
The most remarkable about the patient is her emaciation. This would be consistent with increased work of breathing over many years and decreased nutritional status. The patient appears to be moderately limited by her breathing. She is unable to exert herself, although she has no problems at rest. She did not become noticeably more SOB with strength testing during the exam. She would probably be unable to do anything that would force her to exert herself, however she should have no problems with sitting or standing or slow walking. She appeared to have normal intellectual capacity and was able to concentrate throughout the exam. She does have evidence of lung disease with her rhonchi and occasional wheezing. She did have PFT's a year ago that showed moderate to moderately severe obstruction that was reversible. This is consistent with her diagnosis of emphysema.
(R. 263.)
November 3, 1997 pulmonary function studies were valid. Ms. Taylor made a good effort, and the curves were reproducible. The examiner found moderate obstruction that was not reversible with bronchodilators. (R. 291.)
On November 13, 1997, Ms. Taylor was hospitalized with acute asthma, exacerbated by cigarette smoking and possible bronchitis. (R. 314.) The hospitalization records indicate that Ms. Taylor has a 20-year history of smoking 2-3 packs of cigarettes a day. For the previous three months, she had cut down to five cigarettes a day. (R. 318.) The assessment was mild asthma exacerbation, "marginally requiring an overnight hospital stay." (R. 319.)
November 3, 1997 pulmonary function studies showed moderate obstruction that was not reversible with bronchodilators. (R. 291.)
February 10, 1998 arterial blood gas studies were terminated after two minutes of exercise due to increased shortness of breath, weakness in Ms. Taylor's legs, tightness in her chest, and dizziness. The technician reported that Ms. Taylor "did not put forth maximal effort and cooperation. (R. 301A.) The resting arterial blood gas studies showed mild hypoxemia. Id.
The record also includes office notes from Dr. Clayton Royder for the period September 26, 1997 through May 4, 1998. (R. 356-67.) On September 20, 1997, Ms. Taylor was treated for a cold and a cough. She had shortness of breath. (R. 367.) A chest X-ray was normal. (R. 365.)
On November 10, 1997, Ms. Taylor was treated for a cold and fever. (R. 363.) On December 1, 1997, she was seen for a cold and a cough. (R. 362.) Office notes from January 21, 1998 indicate that Ms. Taylor was suffering from asthma. (R. 360.)
On March 24, 1998, Ms. Taylor was treated for coughing and asthma. She was experiencing shortness of breath with coarse rhonchi. (R. 359.) On April 7, 1998, Ms. Taylor got a breathing shot. Dr. Royder referred her to a psychiatrist. (R. 358.)
In July 1998, Dr. Aiston M. Quillin, a physician who reviewed the medical reports of record for the Commissioner, concluded that Ms. Taylor has the physical residual functional capacity to do work having medium exertional demands. (R. 306.)
Psychological Impairments. On June 3, 1998, Ms. Taylor sought treatment at the Netcare Mental Health Center. She described herself as isolated, with no friends. She said that she stays in her dark bedroom all day. In the past she has mutilated herself. There was extensive scarring on her arms. She cries daily. (R. 370.)
Ms. Taylor has three children at home, ages 8 (daughter), 10 (son), and 15 (son). (R. 370 and 377.) Her 20-year-old son is in jail. Ms. Taylor is estranged from her brothers and sisters, but she is caring for her ill mother. (R. 370.) Ms. Taylor reported previous psychiatric hospitalizations in 1979 and 1981 for cutting herself. (R. 371.)
Ms. Taylor said that she heard voices telling her to kill herself, but she would not because it would hurt her children. (R. 371 and 384.)
Every couple of months Ms. Taylor drinks 8-10 beers in an 8-10 hour period. She abused Valium from age 13 to age 25. (R. 374.)
Ms. Taylor does not drive. Her boyfriend and her mother provide her with transportation. (R. 377.)
Ms. Taylor said that financially "she makes enough to get by." (R. 378.) She has never held a job outside the home. Id.
Ms. Taylor said that she was seeking therapy "to help her manage her anger and anxiety." (R. 382.) She said that she cuts herself when she is upset. There are many long scars on her arms.
She experiences panic attacks weekly. She has a history of her ex-husband beating her, but there has been no violence in her current relationship for eight years. (R. 364.) Ms. Taylor said that she experienced daily mood swings. Although she first talked about being depressed, she said that her anger is more upsetting. She trusts no one and has no friends. Id.
The provisional diagnoses were post-traumatic stress disorder and borderline personality. Her GAF was 60. (R. 386.) Netcare recommended out-patient counseling at North Community Counseling Centers. (R. 387.)
At North Community Counseling, the doctor prescribed Trazadone and Zoloft. (R. 405.) Treatment notes from North Community Counseling from July 14 through October 12, 1998 are included in the record. (R. 391-405.)
By August 12, 1998, Ms. Taylor was sleeping better and eating one meal a day. Her energy level was still decreased. She was smiling. Her affect was full and appropriate. (R. 394.)
On September 14, 1998, Ms. Taylor was concerned about a son in prison, but her boyfriend was supportive. The three children at home were doing well. Ms. Taylor was sleeping well. Her affect was normal. She was smiling. The medications were helping her. (R. 392.)
On October 12, 1998, Ms. Taylor was having trouble with her two adult sons. One was not working. The other was in prison. Ms. Taylor was feeling "down in the dumps." (R. 391.)
On October 6, 1997, Dr. Lennis H. Green, a psychologist who performed a disability evaluation for the Commissioner, reported that Ms. Taylor said that her current medical problems were asthma and nerves. She has five children, one girl and four boys. Their ages ranged from 7 to 23. (R. 269.)
Ms. Taylor said that she had an alcohol problem, and that she had been in detox at St. Ann's. She said that she had had no alcohol for the past one and a half months. Id.
On examination, Dr. Green found that Ms. Taylor's affect was reactive, responsive, and appropriate. She did report worrying and experiencing anxiety. She said that she had no problem with anger. (R. 271.)
Ms. Taylor's memory was adequate for both recent and remote events. She demonstrated poor arithmetic ability and a poor ability to abstract. Dr. Green estimated that Ms. Taylor was functioning within the borderline range of intelligence. Id.
Dr. Green said that Ms. Taylor's ability to interact is moderate. Her judgment is terrible. Her understanding and memory were "adequate to earn A's at Columbus State." (R. 272.)
Ms. Taylor's attention, concentration, pace, and persistence are moderately reduced by situational stressors. She has a moderate ability to withstand the pressures of daily work activity. Dr. Green said that Ms. Taylor "is able, but her life history has taught her `welfare lessons.'" (R. 272.) Her coping skills are poor. Id.
Dr. Green diagnosed an adjustment disorder with mixed features and a borderline personality disorder. He said that her GAF was 60. (R. 273.)
Administrative Law Judge's Findings. The administrative law judge made the following residual functional capacity findings and explained the basis for them:
The claimant retained the ability to sit six hours at a time, stand six hours at a time and walk short distances for a total of six hours during an eight hour work day. She retains the capacity to lift and carry 10 pounds frequently and 20 pounds on [sic] occasionally. She is able to bend, climb ramps and stairs on occasion. She is able to understand, remember and perform one or two step instructions to perform simple and routine tasks. She has the capacity to perform work in a low stress environment. The record does not contain evidence of abnormal clinical and laboratory findings sufficient to document any further degree of loss of physical function.
This assessment is consistent with the objective findings provided by the claimant's family physician, Dr. Royder who reported on September 24, 1994 that the claimant's physical ability to perform the physical and mental activities of work were within normal limits. The findings reported by Dr. Knepler that although the claimant had wheezes she did not require accessory muscles for respiration. Her muscle strength and sensory findings were normal. These findings support the claimant's capacity to perform at least the exertional requirements of light work. The claimant's ability to understand, remember and perform one or two step instructions to perform simple and routine tasks are substantiated by Dr. Green's objective findings. The claimant demonstrated an ability to relate adequately with Dr. Green. Further she reported no difficulties with math and managing her home. The claimant further reported to be the care taker for her ill mother as well as her three young children which are [sic] consistent with the ability to make judgments, perform daily activities and concentrate sufficiently to perform simple tasks. The record documents that during 1979 and 1980 the claimant experienced difficulties with depression. However, she did not require ongoing treatment or counseling. Further the treatment notes from the claimant's current mental health counselors with North Community indicate that her most prevailing complaints surround family matters, primarily the legal entanglements of her two oldest children.
(R. 20.)
Based on that residual functional capacity finding and the vocational expert's testimony, the administrative law judge found that Ms. Taylor is not disabled:
The vocational expert, Steven Rosenthal was asked to assume an individual with the claimant's vocational profile and the foregoing limitations, restrictions, and functional capacity. Mr. Rosenthal testified that an individual with the claimant's vocational characteristics would be capable of performing approximately 2,600 jobs in the Central Ohio area and approximately 27,000 jobs in the State of Ohio. Mr. Rosenthal identified representative jobs with the vocational characteristics possessed by the claimant as food preparer, dining room attendant and retail marker. I conclude that the vocational expert's testimony accurately identifies that types and approximate number of jobs that the claimant can perform and there [sic] these jobs exist in significant numbers in the economy.
(R. 23.)
Standard of Review. Under the provisions of 42 U.S.C. § 405(g), "[t]he findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive. Substantial evidence is "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Company v. NLRB, 305 U.S. 197, 229 (1938)). It is "`more than a mere scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir. 1976).
The Commissioner's findings of fact must be based upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir. 1984). In determining whether the Commissioner's decision is supported by substantial evidence, the Court must "`take into account whatever in the record fairly detracts from its weight.'" Beavers v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1950)); Wages v. Secretary of Health and Human Services, 755 F.2d 495, 497 (6th Cir. 1985)
Even when there is substantial evidence supporting a finding of disability, the Court must affirm the Commissioner's decision when it, too, is supported by substantial evidence. There is "a zone of choice within which the decisionmakers can go either way, without interference by the courts.'" Mullen v. Secretary of Health and Human Services, 800 F.2d 535, 548 (6th Cir. 1986) (en banc) (citing Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)). The administrative law judge, not the Court, is the trier of fact. Siterlet v. Secretary of Health and Human Services, 823 F.2d 918, 920 (6th Cir. 1987).
In close cases where there are facts supporting both the plaintiff's and the Commissioner's view of the evidence, the Commissioner's decision must be affirmed. Smith v. Chater, 99 F.3d 780, 781 (6th Cir. 1996). It is not the Court's role to resolve conflicts in the evidence or to determine the credibility of the claimant. Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001) The decision of the Commissioner must be affirmed so long as it is consistent with the requirements of the law and is supported by substantial evidence.
Plaintiff's Arguments. Plaintiff argues that the decision of the Commissioner denying benefits should be reversed for the reasons set out above on page 2.
Analysis. Plaintiff maintains that the December 2, 1997 pulmonary function studies meet Listing 3.02A and that her chronic asthmatic bronchitis meets Listing 3.03B, 20 C.F.R. Part 404, Subpart P, Appendix 1. The administrative law judge made the general finding that Ms. Taylor's "impairments do not meet or equal the level of severity described in the Listings of Impairments in Appendix 1 of the regulations." (R. 20.) He did not expressly consider Listing 3.02A or Listing 3.03B.
Listing 3.02A. A person of Ms. Taylor's height (61-63 inches) is considered disabled by chronic pulmonary insufficiency if her FEV1 is equal to or less than 1.15. On November 3, 1997, Ms. Taylor's FEV1 before bronchodilation was 1.61. After bronchodilation it was 1.48. (R. 290.) But a December 2, 1997 FEV1 was reported as 0.95. (R. 292.)
The Commissioner's regulations provide that the FEV1 value must measure a claimant when she is in the "most stable state of health. . . ." ( 20 C.F.R. Part 404, Subpart P, Appendix 1, § 3.OOE.) Further, the regulations require that the pulmonary function studies be performed both before and after the administration of a bronchodilator. Id.
Here, the FEV1 pulmonary function studies of record were consistently above 1.15. The December 2, 1997 FEV1 test result is an isolated measurement that is not consistent with the pulmonary function studies conducted just a month before or with the other pulmonary function studies of record. Further, the test was not valid for purposes of meeting Listing 3.02A because no post bronchodilator result was obtained.
Listing 3.03B. This Listing requires a finding of disability for a claimant with asthma and:
B. Attacks (as defined in 3.00C), in spite of prescribed treatment and requiring physician intervention, occurring at least once every 2 months or at least 6 times a year. Each in-patient hospitalization for longer than 24 hours for control of asthma counts as 2 attacks, and an evaluation period of at least 12 consecutive months must be used to determine the frequency of attacks.
(Listing 3.03B.) Plaintiff maintains that she meets the Listing because she was hospitalized October 10, 1995 for an acute exacerbation of chronic obstructive pulmonary disease, and on December 15, 1995 Dr. Feldman reported eight visits for asthma attacks between May and December 1995 requiring intermittent steroid use, inhalation therapy, and medication. Plaintiff further asserts that she was treated on September 26, 1997 by Dr. Royder for an upper respiratory infection and chronic bronchitis, was hospitalized November 13, 1997 with acute asthma exacerbation, and was treated by Dr. Royder for acute exacerbations of her asthma on November 10 and December 1, 1997 and January 21, March 24, April 7, and May 4, 1998.
However, as the Commissioner argues, plaintiff has failed to demonstrate that she complied with prescribed medical treatment for her asthma. For most of the period in question, Ms. Taylor continued to smoke at least one-half pack of cigarettes a day despite her doctors' advice to stop smoking. Even as late as October 1997, Ms. Taylor told a consulting psychologist that she smoked a pack of cigarettes a day. (R. 269.) Both of her emergency room visits with complaints of shortness of breath were linked to tobacco abuse. (R. 127 and 314.)
Further, the record does not establish the required number of asthma attacks. The regulations define attacks as prolonged symptomatic episodes lasting one or more days and requiring intensive treatment, such as intravenous bronchodilator or antibiotic administration or prolonged inhalational bronchodilator therapy in a hospital, emergency room, or equivalent setting. Section 3.OOC, 20 C.F.R. Part 404, Subpart P, Appendix 1. The doctors' office visits relied on by plaintiff do not substantiate the required frequency of attacks to meet Listing 3.03B. Further, there is no indication that Ms. Taylor received intensive treatments, such as intravenous bronchodilator, antibiotic administration, or prolonged inhalational bronchodilator therapy during these office visits.
From a review of the record, I conclude that there is substantial evidence supporting the administrative law judge's determination that Ms. Taylor does not meet or equal a Listing.
Non-Exertional Impairments. Plaintiff argues that there is not substantial evidence supporting the adminsitrative law judge's determination that she is capable of understanding, remembering, and performing one- or two-step job instructions required to perform simple and routine tasks in a low-stress environment. Plaintiff argues that Dr. Green's report demonstrates that her psychological limitations prevent her from working. Dr. Green found that Ms. Taylor's ability to interact is moderately reduced; her judgment is terrible; her attention, concentration, pace, and persistence are moderately reduced; her ability to withstand the pressures of daily work activity are moderately reduced; and she has poor coping skills. (R. 272.)
The vocational expert testified that given the limitations contained in Dr. Green's residual functional capacity evaluation, there were no jobs Ms. Taylor could perform. (R. 56-57.) However, as the defendant argues, Dr. Green found that Ms. Taylor's GAF was 60. That score is consistent with only a moderate limitation in overall functioning. See Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed. 1994). A state agency psychologist, Dr. Marianne N. Collins, who reviewed Dr. Green's report and the other evidence of record as of October 16, 1997, determined that Ms. Taylor had slight restrictions of activities of daily living and in maintaining social functioning. She seldom had deficiencies of concentration, persistence, or pace resulting in a failure to complete tasks in a timely manner. (R. 281.) She was not suffering from any severe impairment. Id.
Overall, the Court does not read Dr. Green's report as requiring the administrative law judge to determine that Ms. Taylor's non-exertional psychological limitations prevent her from working. Indeed, Dr. Green said that Ms. Taylor is capable of working, "but her life history has taught her `welfare lessons.'" (R. 272.)
Upon a review of the record as a whole, the Court finds that there is substantial evidence supporting the administrative law judge's determination that Ms. Taylor retains the ability to perform sustained, substantial gainful work generally available in the national economy. Accordingly, the Court finds that there is substantial evidence supporting the administrative law judge's decision denying benefits.
The decision of the Commissioner of Social Security is AFFIRMED. Plaintiff's motion for summary judgment is DENIED, and defendant's motion for summary judgment is GRANTED.