Civil Action No. 00-0120-AH-L
April 5, 2001
REPORT AND RECOMMENDATION
Plaintiff brings this action under 42 U.S.C. § 405 (g) seeking review of a final decision of the Commissioner of Social Security denying her application for disability insurance benefits. This action was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B). Oral argument was held on November 20, 2000. Upon consideration of the administrative record, memoranda of the parties, and oral argument, it is recommended that the decision of the Commissioner be affirmed.
I. Procedural History
Plaintiff filed an application for disability insurance benefits on October 20, 1995 alleging disability as of February 27, 1993 (Tr. 112-116). This application was denied initially and upon reconsideration (Tr. 117-121, 124-125). On October 2, 1996 and January 14, 1997, upon the request of Plaintiff, hearings were held before an administrative law judge (ALJ) (Tr. 15). On February 24, 1998, the ALJ issued a decision finding Plaintiff not disabled, and therefore, not entitled to disability insurance benefits (Tr. 22-23). The Appeals Council denied Plaintiff's request for review (Tr. 5-6), making the ALJ's decision the final Agency decision. See 20 C.F.R. § 404.981.
II. Claims On Appeal
1. The Appeals Council failed to properly consider new evidence submitted after the ALJ issued his decision.
2. The ALJ improperly considered the opinions of plaintiffs treating and examining physicians and plaintiffs credibility.
3. The ALJ failed to affirmatively develop the record by obtaining a third consultative evaluation.
4. The ALJ erred in finding plaintiff could perform the jobs of production assembler, garment bagger, or housekeeper.
5. The ALJ erred by not finding that plaintiff met the requirements of Listings 12.04 and 12.06 in the Listing of Impairments, 20 C.F.R. Pt. 404, Subpt. P, App. 1.III. Findings of the Administrative Law Judge
The ALJ made the following pertinent findings:
1) Plaintiff had not engaged in substantial gainful activity since February 27, 1993.
2) The medical evidence established that plaintiff had "`severe' depressive disorder, post-traumatic stress disorder and panic disorder without agoraphobia" but her impairments did not meet or equal an impairment listed in 20 C.F.R. Pt. 404, Subpt. P., App. 1 (Tr. 21).
3) Plaintiff's alleged ulcers, irritable bowel syndrome, joint pain/fibromyalgia and complications from breast implant surgery were not severe impairments because the work-related limitations had not been established for twelve consecutive months (Tr. 21).
4) Plaintiff had the residual functional capacity to perform all work but was "limited mentally to simple, low-stress, unskilled tasks involving minimal contact with others, especially the general public." Therefore, she was unable to return to her past work as a waitress (Tr. 22).
A vocational expert (VE) testified that given plaintiffs residual functional capacity, she was capable of performing other work which existed in significant numbers in the national economy (Tr. 22). Based on this evidence and using Rule 204.00 of 20 C.F.R. Pt. 404, Subpt. P., App. 2, as a framework, the ALJ found plaintiff not disabled.
In the psychiatric review technique form, the ALJ found plaintiff had an affective disorder of depression and anxiety related disorders of post-traumatic stress disorder and panic disorder without agoraphobia. The ALJ determined that plaintiff had slight restrictions of activities of daily living and moderate restrictions with maintaining social functioning and that she would seldom experience deficiencies of concentration, persistence or pace, and would never experience episodes of deterioration or decompensation in work or a work-like setting (Tr. 24-27).
IV. Plaintiff's Testimony
Plaintiff was 47 years old at the time the ALJ issued his decision. At the hearing, she testified as follows: She completed the eighth grade and could read words like "see, Dick, Jane," but not more complicated words. However, she could write a check and when she last worked in 1993 as a waitress, she was able to write orders because her supervisor explained which initials to use (Tr. 41-43).
Plaintiff stopped working because of problems with her joints. She had several breast surgeries; initially to remove cancer and later to remove and replace defective implants. She was told that the rupture of one of her silicone breast implants caused her muscle aches and joint pain. She stated the implant rupture had affected her mood and caused her to feel worthless. She testified her knees, neck, back, arms, ankle, and hips hurt and the pain increased with standing and sitting. Furthermore, she has difficulty gripping items and has swelling in her hands (Tr. 44-48).
Plaintiff stated that her fibromyalgia caused depression and kept her from working. She has been hospitalized twice for depression. She saw a psychiatrist but stopped because of financial reasons. After that her family physician prescribed her medication for depression. Plaintiff stated that she cannot work because of her depression, generalized lack of strength, and loss of energy. She also experiences "aching and lack of strength in her hands" which affect her ability to work. Plaintiffs normal activities consist of watching television, reading the Bible, and staying at home. She also does some grocery shopping and some housework, such as washing dishes, but with pain (Tr. 49-51).
V. Medical Evidence
In January 1992, plaintiff was hospitalized for depression (Tr. 153). Arthur Dumont, M. D., prescribed Prozac for the plaintiffs depression. Dr. Dumont's discharge summary indicates that plaintiff initially presented with feelings of helplessness, hopelessness and suicidal ideation and that she was admitted for "crisis intervention and stabilization" (Tr. 153). He found her tearful and emotionally agitated though alert, oriented, cooperative and cognitively intact, though her judgment was impaired by her depression (Tr. 154). Dr. Dumont prescribed five medications for sleep, depression and anxiety and diagnosed major depression with suicidal ideations (Tr. 159). At discharge, she was scheduled to continue therapy with Dr. Michael Rosenbaum, Ph.D., and see Dr. Dumont in three to four weeks (Tr. 159). Plaintiff saw Dr. Dumont several times in 1992 after her hospitalization. His last record was dated April 9, 1992 and he noted that plaintiff appeared "to be `holding her own' although not able to progress as rapidly in coming out of the depression as I would like to see" (Tr. 170). He noted her continued stressful and unpleasant marital and family problems, as well as plaintiffs complaints of breast pain and the unsatisfying visits to several surgeons in that regard (Tr. 170). He then encouraged her to continue with her present plan of psychiatric treatment and planned to see her again in eight weeks (Tr. 170). She did not return to Dr. Dumont until 1998.
On June 21, 1993, Luis Espinoza, M.D., a rheumatologist at Louisiana State University, examined plaintiff and noted she had a mastectomy in 1979 and reconstruction with silicone implants (Tr. 172). The implants were removed in 1993, and replaced with saline implants. Dr. Espinoza noted plaintiff stated she felt "terrible" did not have any strength in her arms, could not lift things, and her neck hurt (Tr. 172). In December 1993, Dr. Espinoza diagnosed atypical connective tissue disease induced by silicone breast implants (Tr. 174), and prescribed Flexeril for the pain (Tr. 177). Dr. Espinoza last saw plaintiff in August 1994 (Tr. 181).
Michael Ledet, had been plaintiffs treating physician since 1988 (Tr. 229). Dr. Ledet's medical records from 1988 through 1995 indicate treatment for breast cancer post-surgery, backache, pain in her breast and axilla, chest pain, stress, depression, including hospitalizations in 1990 and 1992, and other health complaints unrelated to this case (Tr. 229-249). There are no records from Dr. Ledet for 1993 (Tr. 239). On January 11, 1994, Dr. Ledet noted Plaintiff had seen Dr. Espinoza, who diagnosed fibromyalgia secondary to the silicone breast implants (Tr. 239). He also noted Plaintiff continued to take Prozac for depression, although she was no longer seeing Dr. Dumont. Dr. Ledet observed Plaintiff was "doing well with the medication" (Tr. 239). He made a similar notation on February 27, 1994, when he stated, "Prozac is doing well" (Tr. 241).
On May 16, 1994, Dr. Ledet examined Plaintiff for her complaint of shoulder pain. Dr. Ledet noted she took Flexeril at bedtime which helped her symptoms (Tr. 241). Dr. Ledet saw plaintiff on several occasions in 1995, for her complaints of abdominal pain (Tr. 242, 245-246). On November 28, 1995, Dr. Ledet stated plaintiff complained that her fibromyalgia was "acting up" and she was not "handling things well" (Tr. 246). On December 29, 1995, he noted plaintiff reported "feeling better, not 100% but definitely better" with a "little more energy" though still not sleeping well. He increased Desyrel for sleep and continued plaintiff on Prozac (Tr. 247).
On February 22, 1996, Dr. Ledet wrote plaintiffs attorney stating she had a history of bilateral mastectomy with implants in 1988, heart catheterization in 1989, hospital admission for depression in 1990, second hospital admission for depression in 1992, surgical removal of defective implants and replacement with new implants in 1992, diagnosis with fibromyalgia by a rheumatologist, and "intermittent bouts of irritable bowel syndrome treated with medication." He stated that "she has been maintained on Prozac and Desyrel, both antidepressants for treatment of acute and chronic recurrent depression," and that her "[f]ibromyalgia has been kept under control with Flexeril" (Tr. 270). He also noted a hospitalization in May 1995 for an "abdominal ileus, that resolved, but felt secondary to irritable bowel" and her July 1995 hospitalization for hemorrhagic ovarian cyst (Tr. 270). Dr. Ledet stated that he saw plaintiff "[m]ost recently in November  with worsening depression and pain" and he increased her Desyrel and Prozac (Tr. 270). He concludes by stating that he is "unaware of any rating system for her diagnoses" and defers this rating "to someone more experienced than myself" (Tr. 271).
On January 16, 1996, James Chudy, Ph.D., performed a psychological examination of plaintiff at the request of the State Disability Determination Service (DDS) (Tr. 250-253). Plaintiff related a past history of childhood sexual and physical abuse, and abuse by her first husband which cause her to have nightmares, flashbacks and intrusive memories (Tr. 250-252). He administered the Wechlser Adult Intelligence Scale-Revised (WAIS-R) test. He observed that plaintiff "showed only fair effort during testing," she "tended to give up too quickly when challenged" and "often responded `don't know' rather than make a concerted effort" (Tr. 252). He noted her concentration was variable, she "lacked confidence in her own abilities" and "tired of testing quickly." He concluded that the test results were "an underestimate of her present level of functioning" and found plaintiff functioned in the low average range of intelligence. On the WAIS-R she obtained a verbal IQ of 77, a performance IQ of 77 and a full scale IQ of 76 which he found placed "her in the borderline range of intellectual functioning" (Tr. 252).
Dr. Chudy diagnosed major depressive disorder, recurrent, post-traumatic stress test disorder, and panic disorder without agoraphobia. He noted a prognosis of a "favorable response to treatment could be expected within 6-12 months" (Tr. 253). In summary, he found that the intelligence "testing was determined to be invalid this day" (Tr. 253). He estimated her intellectual functioning was in the low average range, that her "ability to understand and complete simple instructions seems good," her "ability to respond appropriately to others appears restricted," and that her "statements appear reliable" (Tr. 252-253). He recommended that she make an appointment at the Mobile Mental Health Center (Tr. 253).
On February 6, 1996, Donald E. Hinton, Ph.D., a non-examining agency psychologist reviewed plaintiffs medical records and noted major depression, anxiety disorder based upon post traumatic stress disorder and low average I.Q. (Tr. 254-266). In rating the severity of her impairment, he found that she was slightly limited in activities of daily living, moderately limited in maintaining social functioning, would often experience deficiencies of concentration, persistence and pace, but did not rate her episodes of deterioration or decompensation because of lack of evidence (Tr. 261). On her mental residual functional capacity assessment, the psychologist found plaintiff not significantly limited in understanding and memory but for a moderate limitation on understanding and remembering detailed instructions (Tr. 263). In regard to her concentration and persistence, he found her not significantly limited but for a moderate limitation on the ability to carry out detailed instructions and maintain attention and concentration for extended periods (Tr. 263). He found her not significantly limited in social interaction but for a moderate limitation on the ability to interact appropriately with the general public (Tr. 264). In regard to her ability to adapt to her work settings, he found her not significantly limited but for a moderate limitation on her ability to respond appropriately to changes in the work setting and set realistic goals or make plans independently of others (Tr. 264).
On February 27, 1996, Ellen N. Eno, Ph.D., a non-examining agency psychologist, reviewed plaintiffs medical records and noted major depression, anxiety disorder based upon post traumatic stress disorder and panic attacks without agoraphobia, and borderline to low average intelligence (Tr. 272-283). In rating the severity of her impairment, she found that plaintiff was slightly limited in activities of daily living and maintaining social functioning, would often experience deficiencies of concentration, persistence and pace, but did not rate her episodes of deterioration or decompensation because of lack of evidence (Tr. 279). On her mental residual functional capacity assessment, the psychologist found plaintiff not significantly limited in understanding and memory but for a moderate limitation on understanding and remembering detailed instructions (Tr. 281). In regard to her concentration and persistence, she found plaintiff not significantly limited but for a moderate limitation on the ability to carry out detailed instructions and maintain attention and concentration for extended periods (Tr. 281-282). The psychologist found her not significantly limited in social interaction or adaptation (Tr. 282).
On January 30, 1997, Patricia McCleary, Ph.D., examined plaintiff at the request of the State Disability Determination Services. Plaintiff reported she was not taking medication for depression nor was she in therapy (Tr. 325). Dr. McCleary noted plaintiff was independent in her activities of daily living, did light housekeeping, cooked, played cards, visited with friends, watched t.v., and did not use drugs or alcohol but smoked a pack of cigarettes per day (Tr. 326). Dr. McCleary stated that plaintiff was "alert, attentive and cooperative throughout the evaluation session. Motivation appeared adequate and testing conditions were questionable, and she did not appear to put forth a good effort, so this evaluation is an underestimate of her current level of functioning" (Tr. 326). She administered the Wide Range Achievement Test-Revised (Tr. 326). Her scores were
Raw Score Standard Score Percentile
Reading 22 54 0.2 Spelling 10 64 1 Arithmetic 21 77 6
In regard to her test results on the WRAT, Dr. McCleary noted that
[t]hese scores indicate that Ms. Blake is functioning in the basic skills of reading and spelling significantly below average. The standard score is an equivalent to an IQ score, so that she is functioning significantly below her previous estimated level of intellectual functioning. It should be noted however, that Ms. Blake did not appear to put forth adequate effort, so these scores may be an underestimate of her actual level of achievement in these basic areas.
(Tr. 326). In her summary, Dr. McCleary noted that plaintiffs "motivation was questionable" and that
"[t]his evaluation is an underestimate of her current level of functioning. Her achievement in basic skills of reading and spelling were significantly lower than her previously obtained assessment of her intellectual functioning, but arithmetic was equivalent to the previously obtained level of functioning.
(Tr. 326). Dr. McCleary stated that plaintiff "reports no or only mild restriction of activities and constriction of interests. Prognosis for improvement in daily functioning to the level where she is able to engage in competitive employment appears fair" (Tr. 327).
On September 16, 1998, after the ALJ determined that plaintiff was not disabled, Dr. Dumont wrote plaintiff's counsel that he saw the plaintiff on June 20, 1998, August 10, 1998 and September 16, 1998. At the visit on June 20, 1998, plaintiff told Dr. Dumont of her "continued difficulties with depression and anxiety of an incapacitating nature" (Tr. 332). He noted her medication for depression had been prescribed by her family physician, Dr. Ledet, and added a prescription for sleep. (Tr. 332). At her August 10, 1998 visit, "she reported some mild stabilization of mood and improvement of sleep, but continued to feel that it would matter little if she were to die as she felt that no one on earth really cared for her" (Tr. 332). At her September 16, 1998 visit, he noted a "continuation of severe depressive symptomatology" and changed her to a newer antidepressant medication (Tr. 332-333). He found plaintiff "vocationally disabled" and that he did not "anticipate her ever returning to capacity for employment" (Tr. 333).
This was plaintiffs first visit with Dr. Dumont since 1992.
Dr. Dumont completed a psychiatric review technique form wherein he marked that plaintiff had an anxiety related disorder under Listing 12.06 and an affective disorder under Listing 12.04. Under the "B" criteria of the listings, Dr. Dumont found plaintiff was markedly restricted in her activities of daily living and maintaining social functioning, that she would constantly have deficiencies in concentration, persistence and pace, and that she would repeatedly experience episodes of deterioration and decompensation in work or work-like settings (Tr. 334-341).
VI. Discussion A. Standard of Review .
In reviewing claims brought under the Act, this Court's role is a limited one. The Court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Sewell v. Bower, 792 F.2d 1065, 1067 (11th Cir. 1986). The Commissioner's findings of fact must be affirmed if they are based upon substantial evidence. Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991), citingBloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is defined as "more than a scintilla but less than a preponderance," and consists of "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 390, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Bloodsworth, 703 F.2d at 1239. The Secretary's decision must be affirmed if it is supported by substantial evidence even when a court finds that the preponderance of the evidence is against the decision of the Secretary. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (1971);Bloodsworth, 703 F.2d at 1239. "In determining whether substantial evidence exists, we must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Further, it has been held that the Commissioner's "failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal." Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991). This Court's review of the Commissioner's application of legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
B. Statement of the Law
An individual who applies for Social Security disability benefits or supplemental security income must prove their disability. See 20 C.F.R. § 404.1512; 20 C.F.R. § 416.912. Disability is defined as the "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423 (d)(1)(A); 20 C.F.R. § 404.1505 (a) (1992); 20 C.F.R. § 416.905 (a) (1991). The Social Security regulations provide a five-step sequential evaluation process for determining if a claimant has proven their disability. See 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. At the first step, the claimant must prove that he or she has not engaged in substantial gainful activity. At the second step, the claimant must prove that he or she has a severe impairment or combination of impairments. If, at the third step, the claimant proves that the impairment or combination of impairments meets or equals a listed impairment, then the claimant is automatically found disabled regardless of age, education, or work experience. If the claimant cannot prevail at the third step, he or she must proceed to the fourth step where the claimant must prove inability to perform their past relevant work.Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In evaluating whether the claimant has met this burden, the examiner must consider the following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; (4) the claimant's age, education and work history. Id., at 1005. Once a claimant meets this burden, it becomes the Commissioner's burden to prove at the fifth step that the claimant is capable of engaging in another kind of substantial gainful employment which exists in significant numbers in the national economy, given the claimant's residual functional capacity and age, education, and work history. Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985). If the Commissioner can demonstrate that there are such jobs the claimant can perform, the claimant must prove inability to perform those jobs in order to be found disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987), citing Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985).
C. Argument 1. Failure of the Appeals Council to properly consider new evidence.
Plaintiff argues that the Appeals Council failed to properly consider new evidence submitted after the ALJ issued his decision. On February 19, 1999, plaintiff requested Appeals Council review of the ALJ's decision and attached to her request, the letter and psychiatric review technique form from Dr. Dumont (Tr. 332-348). The Appeals Council denied review (Tr. 5-7). The council considered the additional evidence and found that it did not provide a basis for changing the decision of the ALJ. The council noted that the medical opinion did not relate to the disability period considered by the ALJ which extended from February 27, 1993, her alleged onset date, until December 31, 1997, plaintiff's date last insured. The council further determined the ALJ's decision that plaintiff did not meet the Part "B" criteria of listing 12.04 and 12.06 was supported by substantial evidence. (Tr. 5-6).
A determination of whether remand for consideration of new evidence is appropriate is a de novo proceeding. Cherry v. Heckler, 760 F.2d 1186, 1194 (11th Cir. 1985); Smith v. Bowen, 792 F.2d 1547, 1550 (11th Cir. 1986); Caulder v. Bowen, 791 F.2d 872, 875 (11th Cir. 1986); Hyde v. Bowen, 823 F.2d 456, 458-459 (11th Cir. 1987). Sentence six of 42 U.S.C. § 405 (g) provides, in pertinent part, that ". . . the 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 . . ." 42 U.S.C. § 405 (g).
In Keeton v. Department of Health and Human Services, 21 F.3d 1064, 1068 (11th Cir. 1994), the Eleventh Circuit set forth the inquiry to be made in regard to new evidence submitted. For remand to the ALJ, "the claimant must establish that (1) there is new, noncumulative evidence, (2) the evidence is `material,' that is, relevant and probative so that there is a reasonable possibility that it would change the administrative result, and (3) there is good cause for the failure to submit the evidence at the administrative level." Id. See also, 42 U.S.C. § 405 (g); Cannon v. Bowen, 858 F.2d 1541, 1546 (11th Cir. 1988); Caulder, 791 F.2d at 877; Cherry, 760 F.2d at 1192-93 (11th Cir. 1985); Falge v. Apfel, 150 F.3d 1320, 1324 (11th Cir. 1998), cert. denied, 525 U.S. 1124, 119 S.Ct. 907 (1999) (In order to review the Appeals Council's denial of review, the court must look at the new evidence to determine if it is "new" and "material," and "the kind of evidence the Appeals Council must consider in making its decision whether to review an ALJ's decision.") Further, the new evidence must relate to the time period before the ALJ.See 20 C.F.R. § 416.1470 (b) and 20 C.F.R. § 404.970 (b) ("Appeals Council shall evaluate the entire record including the new and material evidence submitted to it if it relates to the period on or before the date of the administrative law judge hearing decision.") See also Hyde, 823 F.2d at 459 n. 4 (evidence is material if it addresses the plaintiffs condition "prior to the date of the ALJ's order").
As to the first factor, the "evidence is `new and noncumulative' if it sheds new light on ill-developed psychiatric issues, See e.g. Cherry v. Heckler, 760 F.2d 1186 (11th Cir. 1985), or raises psychiatric issues not previously addressed in the record, see e.g. Milano v. Bowen, 809 F.2d 763 (11th Cir. 1987)." Porter v. Shalala, 1994 WL 686920*2 (N.D. Ala. 1994). Dr. Dumont's letter does not raise issues that were previously unaddressed or ill-developed. Plaintiffs depression and anxiety were major issues and extensively addressed in the ALJ's determination. Two consulting psychologists, Dr. Chudy (Tr. 250-266) and Dr. McCleary (Tr. 325-327), addressed these issues in their consultative evaluations. Additionally, the medical notes of plaintiffs treating physician, Dr. Ledet, indicate that he treated her for depression and anxiety (Tr. 227-249; 270-271). Moreover, Dr. Dumont's previous reports from 1992 were in the record. Furthermore, Dr. Dumont's 1998 letter does not shed new light on the alleged disability, rather it simply states an ultimate determination that plaintiff is "vocationally disabled." To the extent that it provides new evidence concerning plaintiff's restrictions, it should not be considered by this court unless a determination is made that the record was previously "Ill-developed" on the issue. "Ill-developed" does not mean that other doctors, i.e., McCleary and Chudy, reached a different conclusion.
Moreover, the ultimate determination expressed by Dr. Dumont is not new and noncumulative evidence since this determination is reserved for the ALJ. A medical opinion that the plaintiff is disabled or unable to work is not entitled to any special weight because that issue is reserved for the Commissioner. See 20 C.F.R. § 404.1527 (e) (1999) ("We are responsible for making the determination or decision about whether you meet the statutory definition of disability. In so doing, we review all of the medical findings and other evidence that support a medical source's statement that you are disabled. A statement by a medical source that you are `disabled' or "unable to work' does not mean that we will determine that you are disabled.") See also Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986) (The weight afforded physician's conclusory statements depends upon the extent to which they are supported by clinical or laboratory findings and are consistent with other evidence as to claimant's impairments).
Additionally, as the defendant points out, in order to be eligible for disability insurance benefits under Title II of the Social Security Act, plaintiff must establish that she became disabled on or prior to the expiration of her insured status. See 20 C.F.R. § 404.131; see also Ware v. Schweiker, 651 F.2d 408, 411 (5th Cir. 1981) cert. denied, 455 U.S. 912, 102 S.Ct. 1263 (1982). Plaintiff's insured status expired on December 31, 1997 (Tr. 16, 130). Dr. Dumont's letter is dated September 18, 1998. He references his past treatment in 1992 and his more recent treatment in June, August and September of 1998. His letter references a "continuation" of depression and states that she is disabled; however, his statement that her depression has continued since 1992 does not require a conclusion that it was at a disabling level throughout that time. In sum, plaintiff has not met her burden to establish that the new evidence relates to the time period before the ALJ.
Also, plaintiff has not established good cause for failing to obtain a psychiatric evaluation from Dr. Dumont for submission to the ALJ prior to his decision and mere non-existence may not be sufficient. In 1980, Congress amended the Social Security Act "to end the `floating application' procedure by which new evidence could be introduced at each step of the appeals process." Caulder, 791 F.2d at 876 (11th Cir. 1986). By its amendments, "Congress intended to preclude introduction of evidence pertaining to new impairments or worsening conditions." Id. Thus, in order to be material, the new evidence must "contai[n] a medical opinion on the presence of the impairment during the time period for which benefits are sought." Id. at 877-78; see also Hyde, 823 F.2d at 459 n. 4 (evidence is material if it addresses the plaintiffs condition "prior to the date of the ALJ's order"). While the non-existence of evidence at the time of the ALJ's decision "may" constitute good cause, Cherry, 760 F.2d at 1192, the Eleventh Circuit has concluded that "the good cause requirement reflects a congressional determination to prevent the bad faith manipulation of the administrative process." Milano, 809 F.2d at 767. It was designed to "prevent claimants from attempting to withhold evidence" or encouraging them to "`seek after-acquired evidence, and then use such evidence as an unsanctioned `backdoor' means of appeal." Id. (quoting Szubak v. Secretary, 745 F.2d 831, 834 (3d Cir. 1984)). The good cause standard must be applied in light of this purpose. Thus, for example, good cause is not present if the plaintiff "procrastinated in obtaining copies of evidence readily obtainable." Caulder, 791 F.2d at 879. In Brown v. Schweiker, 557 F. Supp. 190 (M.D. Fla. 1983), the plaintiff argued that the good cause requirement was met "simply because the eight [medical] reports in question here were not made until after the administrative hearing." Brown, 557 F. Supp. at 193.
The Brown Court rejected this approach and, expressing the concerns later cited in Szubak and Milano, concluded the mere nonexistence of the records did not satisfy the good cause requirement. Id. Plaintiff has offered no reason for failing to acquire and present Dr. Dumont's letter and psychiatric technique review form. In summary, plaintiff has failed to establish the essential elements for obtaining remand to consider new evidence.
Plaintiff also argues that the Appeals Council erred in failing to recognize that the medical evidence from Dr. Dumont related back to the time period before the ALJ, and that in order for the Appeals Council to correctly evaluate plaintiffs new evidence it should have followed the provisions of Social Security Regulation 83-20 Titles II and XVI: Onset of Disability to determine the remote onset date of her disability. However, SSR 83-20 is inapplicable in this case because it addresses the circumstance wherein a plaintiff is found to be disabled and the onset date must be inferred. SSR 83-20 states that "[i]n addition to determining that an individual is disabled, the decisionmaker must also establish the onset date of disability. In many claims, the onset date is critical; it may affect the period for which the individual can be paid and may even be determinative of whether the individual is entitled to or eligible for any benefits." (emphasis added) The premise behind this ruling is that the ALJ has found the person disabled. Once disability is determined, if the onset date cannot reasonably be inferred from the medical and other evidence, then a medical advisor is retained to determine when the condition became disabling for the purpose of awarding benefits. If the ALJ correctly determines that a person was not disabled prior to the expiration of their insured status and that decision is supported by substantial evidence and proper application of the law, and the Appeals Council review of that decision is proper, then there is no obligation on the part of the ALJ or the Appeals Council to infer a remote onset date of disability because there is no disability. In the present case, the plaintiff did not meet her burden of proving that she is disabled. Therefore, there is no requirement that the Appeals Council apply SSR 83-20 to its consideration of the record.
"How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred." SSR 83-20 Titles II and XVI: Onset of Disability.
2. The ALJ failed to appropriately consider the opinions of plaintiff's treating and examining physicians and plaintiff's credibility when rejecting plaintiff's allegation of disabling pain, disabling depression and illiteracy.
Plaintiff argues that the ALJ did not properly consider under Social Security Ruling 96-2p, Title II and Title XVI: Giving Controlling Weight to Treating Source Medical Opinions and Social Security Ruling 96-5p, Titles II and XVI: Medical Source Opinions on Issues Reserved to the Commissioner, the opinions of Dr. Ledet, Dr. Espinoza and Dr. Dumont in regard to plaintiffs pain resulting from her fibromyalgia and connective tissue disease caused by her silicone breast implants. Specifically, plaintiff argues that the ALJ erred because he failed to articulate adequate reasons for rejecting the "report" of Dr. Espinoza that plaintiff "could not lift with her arms because it worsened her left breast pain with radiation to the left upper extremity", Dr. Ledet's "report" that she had "chronic pain in her breasts" and Dr. Dumont's, plaintiffs psychiatrist, "finding" that she was having pain from her breast implants. Plaintiff alleges that these reports and findings support the plaintiffs subjective allegations of disabling pain which the ALJ discredited.
The purpose of SSR 96-2p is "[t]o explain terms used in [the Social Security] regulations on evaluating medical opinions concerning when treating source medical opinions are entitled to controlling weight, and to clarify how the policy is applied. In particular, to emphasize that: 1. A case cannot be decided in reliance on a medical opinion without some reasonable support for the opinion[;] 2. Controlling weight may be given only in appropriate circumstances to medical opinions, i.e., opinions on the issue(s) of the nature and severity of an individual's impairment(s), from treating sources[;]3. Controlling weight may not be given to a treating source's medical opinion unless the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques[;] 4. Even if a treating source's medical opinion is well-supported, controlling weight may not be given to the opinion unless it also is "not inconsistent" with the other substantial evidence in the case record[;] 5. The judgment whether a treating source's medical opinion is well-supported and not inconsistent with the other substantial evidence in the case record requires an understanding of the clinical signs and laboratory findings and what they signify[;] 6. If a treating source's medical opinion is well-supported and not inconsistent with the other substantial evidence in the case record, it must be given controlling weight; i.e., it must be adopted[; and] 7. A finding that a treating source's medical opinion is not entitled to controlling weight does not mean that the opinion is rejected. It may still be entitled to deference and be adopted by the adjudicator." SSR 96-2p.
"[I]n all cases in which pain or other symptoms are alleged, the determination or decision rationale must contain a thorough discussion and analysis of the objective medical and the other evidence, including the individual's complaints of pain or other symptoms and the adjudicator's personal observations. The rationale must include a resolution of any inconsistencies in the evidence as a whole and set forth a logical explanation of the individual's ability to work[.]" SSR 96-Sp.
In order to find the plaintiff disabled based on the plaintiffs subjective complaints of pain their must be "(1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain." Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (citing Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986)). The Eleventh Circuit Court of Appeals has held that the determination of whether objective medical impairments could reasonably be expected to produce the pain was a factual determination to be made by the Secretary and, therefore, "subject only to limited review in the courts to ensure that the finding is supported by substantial evidence." Hand v. Heckler, 761 F.2d 1545, 1549 (11th Cir. 1985), vacated for rehearing en banc, 774 F.2d 428 (11th Cir. 1985), reinstated sub nom. Hand v. Bowen, 793 F.2d 275 (11th Cir. 1986); McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987). If the pain standard is satisfied, the ALJ must consider the plaintiffs subjective complaints of pain. Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992). Under Gibson v. Heckler, 779 F.2d 619, 624 (11th Cir. 1986), credibility determinations are within the discretion of the ALJ, but the ALJ must provide specific reasons for discrediting a claimant's subjective complaints. See also Hale, 831 F.2d at 1011.
In assessing plaintiffs pain and other symptoms, the ALJ stated that he had
. . . evaluated all of the claimant's symptoms, including pain, in accordance with 20 C.F.R. § 404.1529 and Social Security Rulings (SSR) 96-3p, 96-4p and 96-7p. In accordance with the above, once the medical signs or laboratory finding show that the claimant has a medically determinable impairment that could reasonably be expected to produce the symptoms, such as pain, the [ALJ] must evaluate the alleged intensity and persistence of the claimant's symptoms by considering all of the available evidence. The undersigned has not required the presence of objective medical evidence in determining the existence and persistence of the pain and other symptoms alleged. Rather, the Administrative Law Judge has specifically considered the nature, location, onset, duration, frequency, radiation, and intensity of any symptom, including pain; the precipitating and aggravating factors; the type, dosage, effectiveness, and adverse side effects of any medication; the treatment, other than medication, for relief of pain or other symptoms the claimant has undergone; the alleged functional restrictions; and the claimant's daily activities.
(emphasis added) (Tr. 18-19). In other words, the ALJ initially skipped the requirement that there be objective medical evidence to support the pain, and instead proceeded to evaluate the plaintiff's subjective allegations of pain.
The ALJ did not credit her testimony because it was inconsistent with the medical evidence and her daily activities. (Tr. 18). He noted that,
[t]he physical symptoms she described are not consistent with the weight of the medical evidence as previously summarized herein . . . . Finally, the observations of Drs. Chudy and McCleary that the claimant did not give an adequate effort during testing reflect upon the claimant's motivation and credibility.
(Tr. 18). The ALJ also found that "the claimant's other alleged impairments, as discussed above, are not severe, in that significant work related limitations have not been established for a period of twelve consecutive months after the alleged onset date of disability" (Tr. 18).
The ALJ had previously discussed plaintiffs medical records which included a hospitalization in 1992 for depression, with treatment at that time for peptic ulcer disease, which did not recur, treatment in July 1995 for a benign ovarian cyst, and treatment in April 1995 for a bowel obstruction which resolved (Tr. 16-17). He discussed her complaints to Dr. Espinoza of pain and swelling in her "knees, neck, back, ankles, and arms," and pain in her armpits and lack of upper body strength after the surgical replacement of her implants in December 1993 (Tr. 17). He noted the absence in the record of "significant problems attributable to complications from the breast surgery after 1993" (Tr. 17). The ALJ discussed Dr. Ledet's statement that plaintiffs "fibromyalgia had been kept under control with Flexeril" (Tr. 17). The ALJ also discussed plaintiffs testimony in regard to her constant pain and swelling in her joints, her emotional status and inability to afford treatment, and her daily activities. (Tr. 18).
The plaintiff argues that these statements are not adequate reasons, pursuant to Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995) (plaintiff's subjective allegations of pain can be discredited, but the reasons must be explicit and clearly articulated by the ALJ), for rejecting plaintiffs allegations of pain in light of Dr. Espinoza, Dr. Ledet and Dr. Dumont's notations. Specifically, the plaintiff argues that under SSR 96-2p and SSR 96-5p, the treating physician's medical opinions should have been given controlling weight. The undersigned agrees that the treating physician's opinion about the nature of an impairment and the prevalence of symptoms receives controlling weight when it is supported by medically acceptable clinical records, and is not inconsistent with the other substantial evidence in the record. See 20 C.F.R. § 404.1527 (d)(2) (2000); 20 C.F.R. § 416.927 (d)(2) (2000); Hillsman v. Bowen, 804 F.2d 1179, 1181 (11th Cir. 1986) (Generally, the opinion and examination report of a treating physician are given substantial weight, unless there is good cause to discount.) However, in this case, the referenced notations of Dr. Ledet, Dr. Espinoza, and Dr. Dumont do not constitute an opinion but rather were recitations of plaintiffs complaints. Specifically as to Dr. Ledet and Dr. Dumont, plaintiffs psychiatrists, these statements are simply notations of plaintiffs overall complaints. There are no findings regarding these physical complaints. As to Dr. Espinoza, the record shows that he noted the plaintiffs complaints but that his only finding was that the plaintiff had "active tender points all over". (T. 172-174). Therefore, the ALJ did not err by failing to give these notations the authority of an "opinion", nor did he err by finding that the medical evidence did not support plaintiffs subjective claim of disabling pain.
"Paragraph (d)(2) of 20 C.F.R. § 404.1527 and 416.927 requires that the adjudicator will always give good reasons in the notice of the determination or decision for the weight given to a treating source's medical opinion(s), i.e., an opinion(s) on the nature and severity of an individual's impairment(s). Therefore: When the determination or decision: * is not fully favorable, e.g., is a denial; or * is fully favorable based in part on a treating source's medical opinion, e.g., when the adjudicator adopts a treating source's opinion about the individual's remaining ability to function; the notice of the determination or decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p.
In sum, the ALJ specifically rejected plaintiffs complaints of disabling pain because the objective medical evidence, as outlined supra, did not support the subjective claims. The ALJ clearly articulated his reasons and the reasons are supported by the record.
Plaintiff also argues that Dr. Dumont, her treating psychiatrist, and Dr. Ledet's opinions regarding the severity of her depression support her statements of disabling depression and are entitled to controlling weight and that the ALJ erred by not properly considering their opinions and crediting her testimony.
It is important to note that the ALJ did not have the 1998 evaluation of Dr. Dumont before him; however, the ALJ did discuss the 1992 records from Dr. Dumont (Tr. 16). In regard to her depression, the ALJ concluded that "[t]he claimant's depression appears to have over time waxed and waned, with periods of relative well-being on medication" (Tr. 16) and he supports this statement by reference to the medical records of Dr. Dumont (Tr. 160-171) and Dr. Ledet (Tr. 227-249).
Specifically, a review of Dr. Dumont's 1992 records indicate that plaintiffs crisis of depression was resolved and that upon discharge she was instructed to continue therapy with Dr. Rosenbaum and treatment with Dr. Dumont (Tr. 159). Dr. Dumont's notes show that she saw him in February and April 1992, after her discharge. In his last notes, Dr. Dumont observes that she is not progressing as well as he hoped but she is "holding her own" (Tr. 170). He also noted that she continued her psychotherapy with Dr. Rosenbaum and took her Prozac daily with "significant benefit" (Tr. 170). She was scheduled to return in eight weeks (Tr. 170). There are no further records until 1998.
Dr. Ledet's records do not mention depression or her treatment until January 11, 1994. He notes that she "is on Prozac also per Dr. Dumont although she has not seen him in over a year. She is doing well with the medication, though" (Tr. 239). On January 27, 1994, he noted "Prozac doing well" (Tr. 241). In May 1994, he noted that she continued on Prozac (Tr. 241). In October 1994, Dr. Ledet adds Desyrel for sleep and notes that she is "currently maintained" on Prozac (Tr. 242). In February 1995, he refills her Prozac without notation (Tr. 242). On November 28, 1995, she complains of anxiety, crying without reason, not sleeping well, and that she was not "handling things well" (Tr. 246). On December 29, 1995, he noted plaintiff reported "feeling better, not 100% but definitely better" with a "little more energy" though still not sleeping well. He increased Desyrel for sleep and continued plaintiff on Prozac (Tr. 247). Though Dr. Ledet continued to treat plaintiff with antidepressants and sleep medication, he does not refer her to Dr. Dumont as he did in 1992, which at least raises the inference that he has not found plaintiff in need of psychiatric care or hospitalization. Therefore, contrary to the plaintiffs argument, the ALJ did not reject the opinion of Dr. Ledet or Dr. Dumont. Rather the ALJ based his decision, in part, upon their records which simply do not support plaintiffs allegations that she was continuously disabled for a twelve month period due to her depression during the relevant time.
The ALJ also discussed Dr. Chudy's findings that plaintiff was diagnosed with major depressive disorder, post traumatic stress disorder and panic disorder without agoraphobia, and his conclusion that she had "low average intelligence, could understand and follow simple instructions, but was restricted in her ability to respond appropriately to others" (Tr. 16-17). He discussed the review of plaintiffs records by the non-examining agency doctors and noted that their findings corroborated Dr. Chudy's assessment in regard to "following simple instructions and dealing briefly and infrequently with others" (Tr. 17). He also discussed Dr. McCleary's consultative examination as corroborative of Dr. Chudy's assessment that plaintiff did not give "adequate effort on achievement tests" and that plaintiff was not restricted in her activities of daily living (Tr. 17).
In conclusion, the ALJ found that the "medical evidence of record supports the conclusion that the [plaintiffs] depressive disorder, post-traumatic stress disorder and panic disorder without agoraphobia have limited her ability to do basic mental work-related activities, and are therefore severe Impairments, but their severity has not met or equaled a listed impairment" (Tr. 17-18). The ALJ further stated that "although the evidence shows that the claimant has had medically determinable mental impairments that could be expected to produce some limitations, the evidence does not support the claimant's allegation of the intensity and persistence of symptoms" (Tr. 19). Upon consideration of the record, the undersigned finds no error in the ALJ's assessment of the treating physicians' records or the consultative examiners' findings. Further, review of the medical records finds that substantial evidence, including the records of the treating physicians, supports the ALJ's decision that the plaintiff subjective testimony that her depression is disabling was not credible.
Furthermore, in regard to plaintiffs testimony regarding illiteracy, the ALJ noted that,
[t]he physical symptoms she described are not consistent with the weight of the medical evidence as previously summarized herein. Her testimony regarding literacy was contradicted by her admission that she wrote as a waitress and spends time reading as a daily activity. Finally, the observations of Drs. Chudy and McCleary that the claimant did not give an adequate effort during testing reflect upon the claimant's motivation and credibility.
The plaintiffs own testimony regarding her ability to read was internally inconsistent.
Plaintiff claims that she can only read simple words (Tr. 40) but yet she spends a part of her day reading the Bible (Tr. 51). Plaintiff allegation of illiteracy is also not supported by any other information in the record. Dr. Chudy's and Dr McCleary's testing regarding her intelligence was determined to be at best inconclusive due to a less than satisfactory effort by the plaintiff during testing. Therefore, the ALJ did not err in failing to credit the plaintiffs testimony regarding illiteracy.
3. The ALJ failed to affirmatively develop the record by obtaining a third consultative evaluation.
Plaintiff argues that the psychiatric records in her primary file were inadequate and that the ALJ breached his duty to fully and fairly develop her record by not sending plaintiff for a third consultative evaluation. The ALJ determined that a third psychiatric or psychological examination was not necessary because he found the two mental consultative examinations comported with the standards for consultative examinations and because he found "no clear justification within the evidence" for a third examination (Tr. 19).
The ALJ has a duty to develop the record fully and fairly. Graham v. Apfel, 129 F.3d 1420, 1422-23 (11th Cir. 1997); Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). To meet this requirement, the ALJ referred plaintiff to two psychologists, Dr. Chudy and Dr. McCleary, who conducted psychological evaluations (Tr. 250-266, 325-327). In addition, plaintiffs records were reviewed by the non-examining agency psychologists who prepared mental residual functional evaluations for the ALJ's review (Tr. 254-266; 272-284).
"I. Findings of fact made by State agency medical and psychological consultants and other program physicians and psychologists regarding the nature and severity of an individual's impairment(s) must be treated as expert opinion evidence of nonexamining sources at the administrative law judge and Appeals Council levels of administrative review." Social Security Ruling 96-6p: Titles II and XVI: Consideration of Administrative Findings of Fact by State Agency Medical and Psychological Consultants and Other Program Physicians and Psychologists at the Administrative Law Judge and Appeals Council Levels of Administrative Review: Medical Equivalence
Plaintiff has argued that the evaluations of Dr. Chudy and Dr. McCleary are internally inconsistent and not consistent with other medical evidence of record. Plaintiff points to four grounds upon which Dr. McCleary's report fails to be consistent with other evidence: the statement that plaintiff read at the 0.2 percentile with inadequate effort when the record supported that she could not read despite any effort; finding that plaintiff presented with "multiple mental and physical problems" then diagnosing her with only a personality disorder when the record documents major depressive disorder, post traumatic stress disorder and panic disorder; noting her testing conditions were questionable; and stating that her motivation was "adequate," then later finding her motivation to be "questionable." (Tr. 325-327). Plaintiff also argues that Dr. Chudy's report, was consistent, but incomplete because it did not address her literacy.
Literacy was not required in order to support the ALJ's determination that there were jobs available which plaintiff could perform. (See Tr. 104).
Review of the evaluation by Dr. McCleary does not indicate an inconsistency. Dr. McCleary noted twice that the evaluation results were an "underestimate" of plaintiffs "current level of intellectual functioning" and once that her WRAT scores "may be an underestimate of her actual level of achievement in these basic areas." (Tr. 326). Further, Dr. McCleary stated twice that plaintiff did not "appear to put forth" an adequate effort or a good effort. (Tr. 326). Dr. McCleary stated once that "[m]otivation appeared adequate" and then stated "motivation was questionable." (Tr. 326). However, a careful reading of the overall opinion indicated that Dr. McCleary found plaintiff did not put forth good effort and the results were an underestimate of her present level of functioning.
Dr. Chudy did not address her literacy. However, Dr. Chudy administered the WAIS-R and found plaintiff functioned in the low average range of intelligence. Further, plaintiff did not present to Dr. Chudy with information in regard to her ability to read. She presented to him a lengthy verbal history of her depression, post-traumatic stress disorder and anxiety. (Tr. 250-252). Moreover, her stated ability to read simple words, write coded orders as a waitress and write a check, (Tr. 41-43) plus her statement that she completed the eighth grade, (Tr. 42) and reads the Bible daily (Tr. 51), are consistent with Dr. Chudy's finding that she functions in the low average range of intelligence. As it relates to her depression, Dr. Chudy did address her limitations as a result of the depression as well as her prognosis.
The undersigned does not see how plaintiffs argument regarding failure to address illiteracy is in anyway related to the argument that the ALJ failed to develop the record concerning the plaintiffs alleged psychiatric or psychological problems, i.e. depression.
The plaintiff while claiming disability based in part on depression did not present any psychiatric or psychological evidence from a psychologist or psychiatrist beyond the 1992 records from Dr. Dumont. Plaintiff alleged an onset date of February 1993. Yet she presents no records post 1993, but for her treatment by her primary care physician Dr. Ledet for depression, anxiety and other unrelated health problems, until the 1998 evaluation by Dr. Dumont. Plaintiff stated that she did not see a psychiatrist or psychologist because of her insurance and because of financial concerns, but she offered no reason why she did not attempt treatment through the Mobile Mental Health Center as recommended by Dr. Chudy in January 1996. (Tr. 251, 253).
In his evaluation, Dr. Chudy references plaintiffs statement that she did not seek further psychiatric assistance because of her insurance. He concludes by suggesting that she seek help through the Mobile Mental Health Center. The Center is a United Way Agency at which payment can be made on a "sliding scale" based upon the patient's income.
"In making a claim for Social Security disability benefits, a claimant bears the initial burden of establishing the existence of a disability."Lucas v. Sullivan, 918 F.2d 1567, 1571 (11th Cir. 1990) ( citing [Social Security Act § 1614(a)(3)] 42 U.S.C. § 1382c(a)(3) (1982); (citation omitted); Hale, 831 F.2d at 1011); see also 42 U.S.C. § 423 (d)(5)(A); 20 C.F.R. § 404.1529 (1997); 416.929 (2000); 404.1512 (2000); 416.912 (2000). Once plaintiff has established the existence of a disability, the ALJ is then charged with the full and fair development of the record. Based upon the foregoing, the undersigned finds that the ALJ adequately met his duty to fully and fairly develop the record and a third consultative evaluation was not necessary.
4. The ALJ erred in finding plaintiff could perform the jobs of production assembler, garment bagger, or housekeeper.
Plaintiff argues that the hypothetical question presented to the vocational expert (VE) did not comprehensively describe all of plaintiffs impairments. Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985). The ALJ found plaintiff, as a younger individual, with a limited education, suitable for unskilled work, and with an "unlimited physical ability to perform work activity," would fall within Rule 204.00, 20 C.F.R. Pt. 404, Subpt. P, App. 2, (Medical-Vocational Guidelines). This rule directs a conclusion that plaintiff is not disabled. The ALJ also found that while she had the "residual functional capacity to perform the physical exertional requirements of any and all work," her non-exertional limitations restricted her "to simple, low stress, unskilled tasks involving minimal contact with others, especially the general public." (Tr. 22). A vocational expert was called to testify regarding these non-exertional impairments (Tr. 100-104) because "the ALJ should not rely exclusively on the [Medical-Vocational Guidelines] when the claimant has a nonexertional impairment that significantly limits his basic work skills or the claimant cannot perform a full range of employment at the appropriate level of exertion." Wolfe v. Chater, 86 F.3d 1072, 1078 (11th Cir. 1996) (Citing Francis [v. Heckler], 749 F.2d  at 1566 [(11th Cir. 1985)]. Additionally, "[i]f nonexertional impairments exist, the ALJ may use the grids as a framework to evaluate vocational factors but also must introduce independent evidence, preferably through a vocational expert's testimony, of the existence of jobs in the national economy that the claimant can perform." Wolfe, 86 F.3d at 1077-1078 (Citing Welch v. Bowen, 854 F.2d 436, 439-40 (11th Cir. 1988) (per curiam)). Based upon the responses of the VE, the ALJ found plaintiff could perform work as a production assembler, garment bagger, and housekeeper, all of which exist in significant number in the national economy (Tr. 22, 101). The ALJ also found that plaintiff could perform these jobs regardless of her ability to read and write (Tr. 22, 104).
The ALJ based his hypothetical question to the VE upon a profile of an individual age forty-six, with an eighth grade education, and past relevant work as a waitress which is light exertional and low semi-skilled work. The VE responded that the person could perform the past relevant work as a waitress and also the jobs of production assembler, garment bagger, housekeeper, and fast food worker (Tr. 100-101). The ALJ then added that the person would be limited to "simple, low stress unskilled work tasks designed to minimize contact with others especially the public". The VE eliminated her past work as a waitress. He testified that fast food worker positions would be "reduced significantly in numbers" and that jobs listed as counter help "would at least be reduced by half' (Tr. 102). The ALJ then posed the hypothetical of a person who lacks `concentration and work reliability necessary to perform even simple low stress unskilled work task in a work environment" (Tr. 102-103). The VE answered that this limitation would eliminate all jobs described (Tr. 103).
Plaintiffs counsel posed additional hypothetical question to the VE which included plaintiffs alleged illiteracy, reasoning level and math skills (Tr. 103). The VE responded that if the plaintiff was functionally illiterate the fast food worker, cashier or "order taking positions" might be affected but not the other positions (Tr. 104). After ascertainment of the various literacy, math skill and reasoning levels for cafeteria attendant, production assembler, production manager, and fast food worker, the VE answered plaintiffs counsel's next hypotheticals by stating that fast food worker would be eliminated but not the other three position (Tr. 104-106).
Plaintiffs counsel then posed other hypothetical questions including absence of strength in the upper extremities to which the VE testified no jobs would be available. Plaintiffs counsel then added to the hypothetical, the elements of recurrent and frequent crying spells and the VE responded that the combination of factors would preclude the individual from working (Tr. 107). After questions in regard to whether an exertional limitation to lifting only five pounds would limit plaintiff to light or sedentary work, plaintiffs counsel then added to the hypothetical the elements of variable concentration, below average immediate memory and poor remote memory, difficulty with fingering and grip, difficulty standing or sitting for long periods of time, and limited ability to respond appropriately to co-workers or supervisors (Tr. 107-108). The VE responded that most unskilled jobs discussed would remain (Tr. 108). then added a hypothetical question which addressed an individual with finger swelling that made it hard to grip and knees which ached and swelled that made it difficult to stand for long periods of time (Tr. 108). The VE responded that if the fingers swelled on a regular basis, then "those things would impact the individual vocationally" (Tr. 109).
Plaintiffs counsel states that "the vocational expert testified that any of the above restrictions [no strength in the upper arms, variable concentration, and a restricted ability to respond appropriately to others] would preclude employment. (Doc. 13, p. 15). This is a mischaracterization of the VE's testimony. The VE did not testify that variable concentration alone or restricted ability to respond to others would preclude employment. When suggested, these limitations were clearly in combination with other impairments, particularly limited strength in plaintiffs upper arms. (T. 103-110).
Moreover, the attorney's hypothetical regarding no strength in the upper arms is not supported by any medical evidence. Plaintiff relies upon the 1993 statement in Dr. Espinoza's records that plaintiff "does not have any strength in her upper extremities and can not lift things" (Tr. 172) and that she "is unable to lift her arms" (Tr. 173). Review of the record indicates that the statement was not in the form of a diagnosis or opinion, but rather was repetitive of plaintiffs statement to Dr. Espinoza. Review of the medical records of Dr. Ledet does not reveal any notation of such limitation. On May 16, 1994, Dr. Ledet noted that plaintiff complained of bilateral shoulder pain and that her "[f]ibromyalgia [was] acting up, hurting a lot in the shoulder" (Tr. 241). He noted that her rheumatologist had "put her on some Flexeril at bedtime which [he thought] really helped" (Tr. 241). Dr. Ledet then noted he would "add some physical therapy to the area, get an exercise program started and some local therapy, t.i.d. for 2 weeks" (Tr. 241). On November 28 and December 8, 1995, Dr. Ledet noted her increased anxiety, poor sleep and that her fibromyalgia was acting up (Tr. 246). He adjusted her medications and prescribed Flexeril for her muscle aches (Tr. 246). In regard to her examination on December 8, 1995, he noted her statement that she was "really achy" but on examination he noted "[r]eally there is no abnormality" and "just tender muscles" (Tr. 246). His last notation of December 29, 1995 notes that plaintiff was feeling better (Tr. 247). There are no notations in Dr. Ledet's records that plaintiff was limited in strength. The ALJ found that "[t]he physical symptoms [plaintiff] described are not consistent with the weight of the medical evidence as previously summarized" in the ALJ's decision (Tr. 18). The undersigned finds that substantial evidence supports the ALJ's decision that plaintiff is unlimited in her physical abilities and supports the ALJ's hypothetical question in regard to plaintiffs absence of exertional impairments.
As previously stated, the ALJ found plaintiff was mentally limited to "simple, low stress, unskilled tasks involving minimal contact with others, especially the general public." (Tr. 22). The undersigned finds that the hypothetical questions posed by the ALJ which contained these limitations were consistent with his findings in the psychiatric review technique form and supported by substantial evidence in the record. The ALJ specifically referenced the opinion of Dr. Chudy that plaintiff was of "low average intelligence, could understand and follow simple instructions but was restricted in her ability to respond appropriately to other" (Tr. 16). He also noted that the nonexamining agency doctors corroborated Dr. Chudy's assessment (Tr. 16). He referenced Dr. McCleary's opinion that plaintiff was "able to perform activities of daily living independently and gave a fair prognosis for her mental conditions" (Tr. 17).
In the psychiatric review technique form, the ALJ determined that plaintiff had an affective disorder of depression and anxiety related disorders of post-traumatic stress disorder and panic disorder without agoraphobia. He found plaintiff had slight restrictions of activities of daily living, moderate restrictions on maintaining social functioning, she would seldom experience deficiencies of concentration, persistence or pace, and would never experience episodes of deterioration or decompensation in work or a work-like setting (Tr. 24-27).
Plaintiff has pointed out that the ALJ's finding that plaintiff would seldom experience deficiencies of concentration, persistence and pace was contradicted by the findings of the non-examining agency psychologists. However, the finding is supported by the opinions of Dr. Chudy who noted only that plaintiffs concentration was "variable" and assessed no limitation in regard to concentration, persistence or pace in his opinion. The VE testified specifically that a person with "variable concentration" could still perform most of the unskilled jobs delineated. (T. 107-108). Moreover, Dr. McCleary did not report any deficiency of concentration, persistence or pace.
Dr. McCleary noted plaintiffs reported leisure activities as "playing cards, visiting with friends and watching t.v." and found that "[s]he reports no or only mild restriction of activities or constriction of interests" (Tr. 326-327).
The undersigned, therefore, finds that substantial medical and other evidence supports the ALJ's determination that the plaintiff has the residual functional capacity to perform other work which exists in significant numbers in the national economy; therefore, the Commissioner has met his burden at step five of the sequential evaluation process.
6. The ALJ erred by not finding that plaintiff met the requirements of Listings 12.04 and 12.06 in the Listing of Impairments, 20 C.F.R. Pt. 404, Subpt. P, App. 1.
The ALJ found that plaintiffs impairments of depression, post traumatic stress disorder and panic disorder without agoraphobia while severe, either singly or in combination, did not meet a or equal a listing set forth in 20 C.F.R. Pt. 404, Subpt. P., App. 1. (Tr. 21, 24). Plaintiff argues that the ALJ erred when he did not find that she met the criteria for Listing 12.04, affective disorders (depression), and Listing 12.06, anxiety related disorders (post traumatic stress disorder and panic disorder without agoraphobia). Plaintiff supports her argument with reference to Dr. Dumont's medical records from the 1992 hospitalization and the 1998 medical records from Dr. Dumont which were not before the ALJ (Tr. 153-159; 332-341). Plaintiff asserts that the medical records of Dr. Dumont support the evaluation of Dr. Chudy wherein he stated that plaintiff had recurrent major depressive disorder, post traumatic stress disorder and panic disorder without agoraphobia (Tr. 250-253). However, review of Dr. Chudy's evaluation shows that he also stated that a "favorable response to treatment could be expected within 6-12 months" (Tr. 253).
12.04 Affective Disorders: Characterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome. Mood refers to a prolonged emotion that colors the whole psychic life; it generally involves either depression or elation. The required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in C are satisfied. A. Medically documented persistence, either continuous or intermittent, of one of the following: 1. Depressive syndrome characterized by at least four of the following: a. Anhedonia or pervasive loss of interest in almost all activities; orb. Appetite disturbance with change in weight; or c. Sleep disturbance; or d. Psychomotor agitation or retardation; or e. Decreased energy; or f. Feelings of guilt or worthlessness; or g. Difficulty concentrating or thinking; or h. Thoughts of suicide; or i. Hallucinations, delusions or paranoid thinking; . . . B. Resulting in at least two of the following: 1. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining social functioning; or 3. Marked difficulties in maintaining concentration, persistence, or pace; or 4. Repeated episodes of decompensation, each of extended duration; or C. Medically documented history of a chronic affective disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following: 1. Repeated episodes of decompensation, each of extended duration; or 2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or 3. Current history of I or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement. 20 C.F.R. Pt. 404, Subpt. P, App. 1
12.06 Anxiety Related Disorders: In these disorders anxiety is either the predominant disturbance or it is experienced if the individual attempts to master symptoms; for example, confronting the dreaded object or situation in a phobic disorder or resisting the obsessions or compulsions in obsessive compulsive disorders. The required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in both A and C are satisfied. A. Medically documented findings of at least one of the following: I. Generalized persistent anxiety accompanied by three out of four of the following signs or symptoms: a. Motor tension; or b. Autonomic hyperactivity; or c. Apprehensive expectation; or d. Vigilance and scanning; or 2. A persistent irrational fear of a specific object, activity, or situation which results in a compelling desire to avoid the dreaded object, activity, or situation; or 3. Recurrent severe panic attacks manifested by a sudden unpredictable onset of intense apprehension, fear, terror and sense of impending doom occurring on the average of at least once a week; or 4. Recurrent obsessions or compulsions which are a source of marked distress; or 5. Recurrent and intrusive recollections of a traumatic experience, which are a source of marked distress; and B. Resulting in at least two of the following: I. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining social functioning; or 3. Marked difficulties in maintaining concentration, persistence, or pace; or 4. Repeated episodes of decompensation, each of extended duration, or C. Resulting in complete inability to function independently outside the area of one's home. 20 C.F.R. Pt. 404, Subpt. P, App. 1
The law in this circuit specifically states that when an individual claims that she has an impairment which meets a listed impairment, she "must present specific medical findings that meet the various tests listed under the description of the applicable impairment or, if in the alternative [s]he contends that [s]he has an impairment which is equal to one of the listed impairments, the claimant must present medical evidence which describes how the impairment has such an equivalency." Bell v. Bowen, 796 F.2d 1350, 1353 (11th Cir. 1986).
In discussing the purpose and application of the Listing of Impairments, the Eleventh Circuit has provided the following guidance:
The Listings include medical criteria for specified disorders of thirteen major body systems. These impairments are so severe that an individual who has a listed impairment is generally considered unable to work based upon medical considerations alone. 20 C.F.R. § 416.925 (a) [404.1525(a)]. A claimant may prove that he is disabled by either (1) meeting the Listings or (2) equaling the Listings. In order to meet a Listing, the claimant must (1) have a diagnosed condition that is included in the Listing and (2) provide objective medical reports documenting that this condition meets the specific criteria of the applicable Listing and the duration requirement. A diagnosis alone is insufficient. 20 C.F.R. § 416.925 (c)-(d) [404.1525(c)-(d)]. In order to equal a Listing, the medical findings must be at least equal in severity and duration to the listed findings.Wilkinson on behalf of Wilkinson v. Bowen, 847 F.2d 660, 662 (11th Cir. 1987); see also Bell, 796 F.2d at 1353. Plaintiff has been diagnosed with several conditions, mental and physical, however, a diagnosis alone is not enough to meet a listing. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991) ("diagnosis of a listed impairment is not alone sufficient; the record must contain corroborative medical evidence supported by clinical and laboratory findings.")
Arguably, plaintiffs records may establish that she meets some components of section A of Listing 12.04 and Listing 12.06. See fn. 13, 14. However, plaintiff has not presented evidence to establish that she meets the criteria in section B of the listings. There are no medical records to document marked limitations of any function. Dr. McCleary found plaintiff "reports no or only mild restriction of activities and constriction of interests," that she was "independent in her activities of daily living", and her "prognosis for improvement in daily functioning to the level where she is able to engage in competitive employment appears fair" (Tr. 326). Dr. Chudy found plaintiff had variable concentration and was in the "borderline range of intellectual functioning"(Tr. 252). He diagnosed major depressive disorder, recurrent, post-traumatic stress test disorder, and panic disorder without agoraphobia, but noted plaintiff had a good prognosis for recovery within six to twelve months with treatment (Tr. 253). The non-examining agency psychologists, Dr. Hinton and Dr. Eno, found only slight to moderate limitations in some area of assessment (Tr. 254-266; Tr. 279-282). Plaintiff has pointed out that both of the non-examining agency psychologist found that she would often experience deficiencies in concentration, persistence and pace. However, Dr. McCleary made no note of observation of this deficiency and Dr. Chudy noted only that her concentration was variable (Tr. 252). Further, in order to meet either listing plaintiff must establish that she has marked restriction of concentration, persistence and pace. Dr. Dumont's records did not contain objective medical evidence to support a finding of a marked impairment. As discussed previously, his 1998 letter wherein he discusses the continuing major depression of the plaintiff and his opinion that she is precluded from all employment failed to meet the standard for consideration of new evidence. Therefore, it can not be considered as evidence which supports an element of the listings. Further, there are no medical records to indicate that she meets the section C criteria of the listings.
After review of the objective medical records, including those of Dr. Dumont from 1992, Dr. Espinoza, Dr. Ledet, Dr. Chudy, Dr. McCleary and the non-examining agency psychologists, and testimony and statements by the plaintiff, the undersigned finds that the ALJ's decision that the plaintiff does not meet or equal a listing is supported by substantial evidence in the record. Plaintiff has presented sufficient medical evidence to establish that she has severe mental impairments. However, as previously stated, a diagnosis alone is insufficient. 20 C.F.R. § 416.925 (c)-(d) [404.1525(c)-(d)]. In order to equal a Listing, the medical findings must be at least equal in severity and duration to the listed findings. Plaintiff has failed to establish through objective medical evidence that her impairments are equal in severity and duration to Listing 12.04 or 12.06.
For the reasons set forth, and upon consideration of the administrative record, the memoranda of the parties, and oral argument it is recommended that the decision of the Commissioner denying plaintiffs claim for Social Security disability insurance benefits be affirmed.
The attached sheet contains important information regarding objections to this report and recommendation.