Opinion
Case No. 2:02-CV-662 DAK.
January 18, 2005
REPORT AND RECOMMENDATION
Before the Court is an action filed by Plaintiff, Annette Black, asking the Court to reverse the final agency decision denying her applications for Disability Insurance Benefits (hereafter referred to as "DIB") and Supplemental Security Income (hereafter referred to as "SSI") under Titles II and XVI of the Social Security Act. See 42 U.S.C.A. §§ 401-434, 1381-1383c (2004). The Administrative Law Judge (hereafter referred to as "ALJ") found, at step five of the five-step disability analysis, that Plaintiff is not disabled because Plaintiff is capable of performing work that exists in significant numbers in the national economy.
Plaintiff now challenges the ALJ's decision by arguing that it is legally erroneous and it is not supported by substantial evidence. However, having carefully considered the parties' memoranda and the complete record in this matter, the Court recommends that Plaintiff's motion requesting reversal or remand be denied.
BACKGROUND
Plaintiff applied for DIB and SSI in September 1999. (File Entry #24, The Certified Copy of the Transcript of the Entire Record of the Administrative Proceedings Relating to Annette Black (hereafter referred to as "Tr. ___") at 57-59, 422-24.) Plaintiff's claim was denied initially and upon reconsideration. (Tr. 36-38, 44-47, 425-28, 430-32.) Plaintiff then requested a hearing before an ALJ. (Tr. 48-49.) Plaintiff's hearing before the ALJ occurred on November 14, 2001. (Tr. 433-96.) On December 27, 2001, the ALJ issued a decision denying Plaintiff's claim. (Tr. 10-24.) Subsequently, the Appeals Council denied Plaintiff's request for review (Tr. 7-8), making the ALJ's decision the Commissioner's final decision under 42 U.S.C. § 405(g). See 20 C.F.R. §§ 404.981, 416.1481.
After receiving the Appeals Council's denial of her request for review, and after having her motion to proceed in forma pauperis granted, Plaintiff filed her complaint with the Court on September 13, 2002, and the case was assigned to United States District Judge Dale A. Kimball. (File Entries #1-3.) On September 23, 2002, the Court granted Defendant's motion to remand the case to the Commissioner pursuant to sentence six of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), and the case was closed on September 27, 2002. (File Entries #6, 7.)
On January 16, 2003, Defendant filed a motion to reopen the case, along with her answer to Plaintiff's complaint. (File Entries #8, 9.) The Court granted Defendant's motion to reopen the case on January 21, 2003. (File Entry #10.)
On July 29, 2003, Plaintiff filed her memorandum supporting her motion to reverse or remand Defendant's administrative decision. (File Entries #11, 12.) That same day, Plaintiff filed a motion to supplement the record, and a supporting memorandum, explaining that a page from a report written by Dr. Ririe, Plaintiff's treating psychologist, was missing from the administrative record. (File Entries #13, 14.)
On August 5, 2003, the case was referred to United States Magistrate Judge Samuel Alba pursuant to 28 U.S.C. § 636(b)(1)(B). (File Entries #15, 16.) Magistrate Judge Alba granted Plaintiff's motion to supplement the record on August 8, 2003. (File Entry #17.) Plaintiff filed the document by which she supplemented the record on October 30, 2003. (File Entry #18.) On January 9, 2004, Defendant filed her brief. (File Entry #23.)
Then, because Plaintiff discovered that when she supplemented the record, she had failed to file the medical document that was missing from the administrative record, and because that document appeared to be unavailable, on August 27, 2004, Plaintiff filed a motion to remand for incomplete record. (File Entry #25.) Defendant filed a response to that motion on September 13, 2004. (File Entry #26.) On September 29, 2004, Plaintiff filed a withdrawal of her motion to remand for incomplete record, along with the page of Dr. Ririe's report that was missing from the administrative record. (File Entry #27.) At that time, the Court took this matter under advisement.
STANDARD OF REVIEW
The Court reviews the Commissioner's decision "to determine whether the factual findings are supported by substantial evidence and whether correct legal standards were applied." Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003); accord Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003).
The Commissioner's findings, "if supported by substantial evidence, shall be conclusive." 42 U.S.C.A. § 405(g) (2003). "`Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."'" Doyal, 331 F.3d at 760 (citations omitted). "`Substantial evidence' requires `more than a scintilla, but less than a preponderance,' and is satisfied by such relevant `evidence that a reasonable mind might accept to support the conclusion.'" Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988) (citation omitted). "`Evidence is not substantial "if it is overwhelmed by other evidence — particularly certain types of evidence (e.g., that offered by treating physicians) — or if it really constitutes not evidence but mere conclusion."'" Id. at 805 (citations omitted); see also O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994) ("Evidence is insubstantial if it is overwhelmingly contradicted by other evidence."); Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) ("A finding of `"no substantial evidence" will be found only where there is a "conspicuous absence of credible choices" or "no contrary medical evidence."'" (Citations omitted.)).
In conducting its review, the Court "must examine the record closely to determine whether substantial evidence supports" the Commissioner's decision. Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996). The Court may "`neither reweigh the evidence nor substitute [its] judgment for that of the agency.'" White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001) (citation omitted). However, the Court is not required to mechanically accept the Commissioner's findings. See Ehrhart v. Secretary of Health Human Servs., 969 F.2d 534, 538 (7th Cir. 1992) ("By the same token, we must do more than merely rubber stamp the decisions of the [Commissioner]."). Rather, the Court must "`examine the record as a whole, including whatever in the record fairly detracts from the weight of the . . . [Commissioner's] decision and, on that basis, determine if the substantiality of the evidence test has been met.'" Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994) (citation omitted). The Court's review of the record includes any evidence Plaintiff presented for the first time to the Appeals Council. See O'Dell, 44 F.3d at 858-59.
The Court typically defers to the ALJ on issues of witness credibility. See Hamilton v. Secretary of Health Human Servs., 961 F.2d 1495, 1499 (10th Cir. 1992). Nonetheless, "`[f]indings as to credibility should be closely and affirmatively linked to substantial evidence.'" Winfrey, 92 F.3d at 1020 (citation omitted).
The Court's review also extends to determining whether the Commissioner applied the correct legal standards. Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000). Besides the lack of substantial evidence, reversal may be appropriate where the Commissioner uses the wrong legal standards or the Commissioner fails to demonstrate reliance on the correct legal standards. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993); Andrade v. Secretary of Health and Human Servs., 985 F.2d 1045, 1047 (10th Cir. 1993).
ANALYSIS
Plaintiff presents the Court with seven arguments challenging the ALJ's decision denying Plaintiff benefits. The Court addresses each of those arguments in turn.
A. Failure to Follow Prescribed Treatment
First, Plaintiff challenges the ALJ's findings regarding Plaintiff's failure to follow her prescribed treatment. Plaintiff argues "there is no evidence supporting the ALJ's opinion and he does not cite to any showing that, but for [Plaintiff's] failure to take her medication, she would be able to perform Substantial Gainful Activity." (File Entry #12, at 13.) Plaintiff argues that, instead, the evidence "indicates [Plaintiff's] condition would not improve." (File Entry #12, at 13.) Plaintiff further argues that the ALJ only could deny benefits on the basis of failure to take medication if that failure to follow treatment was willful and without justifiable excuse. Plaintiff explains that her noncompliance with prescribed treatment simply was part of her mental illness and thus was not willful and without justifiable excuse.The Court has carefully reviewed Plaintiff's argument and concludes that it lacks merit. The ALJ did not deny Plaintiff benefits solely because Plaintiff failed to follow prescribed treatment. Instead, the ALJ carefully examined Plaintiff's medical records to evaluate how Plaintiff's condition was affected when Plaintiff was properly treated and regularly took her medications. The ALJ used that information in evaluating whether Plaintiff met Listing 12.04 and in evaluating Plaintiff's credibility. (Tr. 15, 21.) A careful evaluation of how Plaintiff's condition improved when she followed prescribed treatment was not improper. Further, contrary to Plaintiff's argument, the record supports that even though some of Plaintiff's impairments persisted to some degree, generally, when Plaintiff followed prescribed treatment, her condition improved. (Tr. 346, 373, 376; File Entry #27, Dr. Ririe's report, page 5, Prognosis ("So long as [Plaintiff] does not seek out and receive the proper medical attention, she will continue to have significant difficulties.").
In addition, the ALJ's inclusion in his credibility analysis of Plaintiff's comment that she did not like that she was less hyperactive when she took Zoloft was not improper. Even though noncompliance with prescribed treatment is recognizably often an issue in the case of mental illness, the ALJ was following administrative guidelines when, in his credibility analysis, he commented that Plaintiff's failure to follow prescribed treatment "should not be construed in her favor in evaluating her impairments and residual functional capacity" (Tr. 21). See 20 C.F.R. §§ 404.1530, 416.930.
Thus, the Court concludes that the ALJ did not err in carefully examining how Plaintiff's condition improved when she followed her prescribed treatment. The Court further concludes that the ALJ properly used Plaintiff's failure to follow prescribed treatment as a factor in assessing the credibility of Plaintiff's subjective complaints and in determining Plaintiff's RFC. See, e.g., Qualls, 206 F.3d at 1372 (noting ALJ did not deny benefits on basis that claimant had not followed prescribed treatment; rather ALJ properly considered what attempts claimant made to relieve his pain in an effort to evaluate the veracity of claimant's contention that pain was so severe as to be disabling); Shepherd v. Apfel, 184 F.3d 1196, 1202 (10th Cir. 1999) (concluding ALJ properly linked his credibility determination to specific evidence).
B. Hypothetical Question Presented to the Vocational Expert
Second, Plaintiff argues that the ALJ erred in presenting the hypothetical question to the vocational expert (hereafter referred to as "VE"). Plaintiff argues that the ALJ's hypothetical question did not reflect all of Plaintiff's limitations because it did not adequately quantify stress and it did not include restrictions due to her asthma.
First, Plaintiff argues that the portion of the ALJ's hypothetical question regarding stress was insufficient. Citing to SSR 96-8p, Plaintiff argues that the ALJ's use of the term "low stress" was impermissibly vague and did not include sufficient detail to adequately describe Plaintiff's stress limitation. See SSR 96-8p, 1996 WL 374184 (July 2, 1996).
In evaluating Plaintiff's argument, the Court has read the transcript containing the hypothetical question presented by the ALJ to the VE. In giving the limitation of "low stress" to the VE, the ALJ explained that low stress meant "below average stress," "no significant stressors, such as significant production-rate work," that Plaintiff "could not work with the general public, would have to have minimal supervision, and minimal interaction with supervisors and co-workers to reduce the public, or actually, the people contact as much as possible," and that Plaintiff would need "minimal work setting changes." (Tr. 488.) This description of "low stress" adequately described Plaintiff's stress limitation. Therefore, the ALJ was not impermissibly vague in setting forth his hypothetical question to the VE, and the Court rejects Plaintiff's argument.
Second, Plaintiff argues the ALJ erred by not including restrictions regarding Plaintiff's asthma in the hypothetical question he presented to the VE. In her brief, the Commissioner admits that the ALJ did not include a limitation due to Plaintiff's asthma such as not working around dust, fumes, and gases. However, the Commissioner argues that this oversight is harmless. "The harmless error rule applies to judicial review of administrative proceedings, and errors in such administrative proceedings will not require reversal unless Plaintiffs can show they were prejudiced." Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993) (citation omitted); see also Diaz v. Sec'y of Health and Human Servs., 898 F.2d 774, 777 (10th Cir. 1990) (noting that, as VE was present and heard claimant's testimony regarding impairments, the effect of any error in the ALJ's hypothetical question was minimal); Glass v. Shalala, 43 F.3d 1392, 1397 (10th Cir. 1994) (explaining that although ALJ's conduct in obtaining VE testimony without presence of claimant or her attorney was improper, there was no showing that failure to allow cross-examination affected the ultimate result, so reversal not required).
Plaintiff has made no attempt to show how she was prejudiced by the ALJ's failure to include the asthma restriction in the hypothetical question to the VE. Indeed, Plaintiff's argument regarding the ALJ's failure to include dust or fumes limitations in the hypothetical question consists of only one sentence. (File Entry #12, at 14.) Further, as Defendant points out, a medical restriction to avoid excessive amounts of dust would have only a minimal impact on the broad world of work because most environments do not involve exposure to excessive amounts of dust. See SSR 85-15, 1985 WL 56857, at *8 (1985). In addition, it appears that the jobs listed by the VE would not involve excessive amounts of dust. Thus, because the ALJ's failure to include limitations involving Plaintiff's asthma in the hypothetical question to the VE appears to be harmless error, and because Plaintiff has made no effort to show how that error prejudiced her case, the Court will not reverse or remand this case on that basis.
C. Reliance on Daily Activities
Third, Plaintiff argues that the ALJ's reliance on daily activities as an indication of disability was inappropriate and was not an accurate statement of Plaintiff's testimony. Plaintiff argues that even though the ALJ described some of Plaintiff's daily activities, the ALJ failed to explain how those activities were performed and how that performance was further evidence of Plaintiff's obsessive tendencies and other impairments. Plaintiff argues that her busy daily schedule actually reflected her inability to accomplish very much even though she was busy doing things throughout the day. Plaintiff argues that her busy schedule was evidence of her manic problems and that "the doctors have explained that medication just won't help." (File Entry #12, at 16.)
Contrary to Plaintiff's argument, the ALJ reviewed in great detail Plaintiff's daily activities. The ALJ noted in his opinion that Plaintiff engaged in such activities as sewing for charity and reading books. (Tr. 20.) The ALJ also noted how Plaintiff's impairments affected her daily activities. (Tr. 20.) For example, the ALJ noted that Plaintiff spent time reorganizing and rearranging her books and her grandchildren's clothes and toys; that Plaintiff checked on her books, her grandchildren's things, and her geneologies every day; that Plaintiff stayed in bed all day two to three times a month and did not bathe some days; that Plaintiff testified that "her brain was always thinking about something and that she sometimes heard and saw things that others did not, such as dogs and cats talking about her"; and that Plaintiff testified that "she had verbal warnings about harmful things and upcoming events." (Tr. 20.) These descriptions reflect the impact Plaintiff's impairments have on her daily activities. In addition, when reviewing Plaintiff's medical records, the ALJ also mentioned how Plaintiff's daily activities were affected by Plaintiff's impairments. For example, the ALJ noted that Plaintiff told Dr. Ririe on October 2, 2000, that she sewed two to three baby outfits a day, but that she had to undo every other stitch she made. (Tr. 17.) The ALJ also noted that at that visit, Plaintiff endorsed grandiose thinking and actions, such as seeking loans to develop large buildings, running up her credit limit at stores despite her lack of funds, and feeling responsible for world events such as wars. (Tr. 17.) Thus, contrary to Plaintiff's argument, the Court's review of the record reveals that the ALJ did specifically describe Plaintiff's activities, including how those activities were affected by Plaintiff's impairments.
Furthermore, the ALJ acted properly when he considered Plaintiff's daily activities in analyzing Plaintiff's subjective allegations of pain and other subjective symptoms. The ALJ considered those activities as well as Plaintiff's medical record, her conservative treatment for her physical conditions, and Plaintiff's failure to comply with prescribed treatment. Such a detailed analysis linking Plaintiff's credibility to specific and legitimate evidence in the record follows the guidelines set forth by the Social Security Administration as well as by the courts. See Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995) (explaining (1) that factors to be considered by ALJ in assessing credibility may include, for example, the extensiveness of a claimant's efforts to obtain relief from symptoms and (2) that ALJ must explain how the specific evidence relevant to each factor led him to conclude claimant's subjective complaints were not credible); Gossett, 862 F.2d at 807 (noting, as part of credibility analysis, that claimant did not seek medication for his pain until 20 months after his alleged onset date of disability); SSR 96-79, 1996 WL 374186 (July 2, 1996).
Because the ALJ acted properly in describing Plaintiff's daily activities and in considering those activities in evaluating her credibility, the Court rejects Plaintiff's argument.
D. Somatic Disorder
Fourth, Plaintiff argues that the ALJ failed to note that Plaintiff had been diagnosed with an histrionic personality disorder and that Plaintiff had been found to have somatic over concern. Plaintiff argues that due to this failure, the ALJ improperly used Plaintiff's somatic disorder to reflect on Plaintiff's credibility.
The Court has carefully reviewed the record and finds that, contrary to Plaintiff's assertion, the ALJ did note in his opinion that Plaintiff's doctor had attributed some of Plaintiff's symptoms to somatization. (Tr. 19.) Contrary to Plaintiff's argument, the ALJ did not err in finding that Plaintiff's somatic affects negatively affected Plaintiff's credibility. Although the Court notes that somatoform disorders are recognized as impairments by the Social Security Administration, see 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 12.07, the Court also recognizes that Plaintiff's somatic affects are a legitimate reason for doubting Plaintiff's credibility. See Musgrave v. Sullivan, 966 F.2d 1371, 1376 (10th Cir. 1992) (explaining, where claimant had been diagnosed with somatization reaction, that claimant's numerous exaggerations and contradictions, when considered with the doctor's diagnosis, cast doubt on claimant's credibility); SSR 96-7p, 1996 WL 374186, at *1 (explaining that "[i]n determining the credibility of the individual's statements, the adjudicator must consider the entire case record"). As a result, the ALJ properly identified specific and legitimate reasons for discounting Plaintiff's credibility, and the Court rejects Plaintiff's argument. See Hollenbach v. Barnhart, 2003 WL 21916965, at *5 (10th Cir. 2003) (deferring to ALJ's credibility findings because ALJ identified specific and legitimate reasons for doubting claimant's credibility).
E. Consideration of the Evidence
Fifth, Plaintiff argues that the ALJ erred by failing to consider all of the evidence in the record. Plaintiff's argument focuses on two sets of records Plaintiff argues were not properly considered by the ALJ.
First, Plaintiff argues that the ALJ failed to reference medical records from 1992 and 1995 in his decision. Those records included an MMPI which noted such characteristics as restlessness and impulsivity, distractibility, poor self control, and unusual thought processes, and Plaintiff was found to have memory deficits. (Tr. 396, 400-401.) The records referred to by Plaintiff also included reference to gastric upset and other physical complaints. (Tr. 250.)
The Court has carefully reviewed Plaintiff's argument and the supporting record and concludes that the ALJ did not err by failing to specifically mention medical reports written approximately five to seven years before Plaintiff's alleged onset date of disability. The record must show that the ALJ considered all the evidence, but he is not required to discuss every piece of it. See Qualls, 206 F.3d at 1372 (explaining that the ALJ is not required to provide a formalistic factor-by-factor recitiation of the evidence"); Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) ("The record must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to discuss every piece of evidence."). In this case, the ALJ thoroughly discussed the medical evidence that was contemporaneous and relevant to Plaintiff's alleged onset date of disability, June 17, 1999. Specifically, the ALJ discussed medical records from Wasatch Mental Health dated from October 2000 through October 2001, which included treatment notes from Drs. Holman and Guernsey. (Tr. 18-19.) The ALJ also discussed the findings of Dr. Ririe, a psychologist, who saw Plaintiff on two occasions (Tr. 16, 17-18), and the findings of the non-examining State agency medical consultants (Tr. 15). Notably, the ALJ found that Plaintiff's cervical spine narrowing and gastroesophageal reflux disease were "severe" impairments and included appropriate limitations in the RFC finding. (Tr. 14, 21, 22, 23.) In addition, many of the other characteristics and limitations, including poor memory, distractibility, and impulsivity, were mentioned and considered by the ALJ in his review of the evidence and/or his discussion of Plaintiff's RFC. (Tr. 14, 16-21.) Therefore, the ALJ considered the relevant medical records of evidence and did not err by failing to provide a formalistic factor-by-factor recitation of all available evidence, including that written years before her alleged onset date of disability.
Second, Plaintiff argues that the ALJ ignored medical record notes revealing that even when her medication was increased, Plaintiff was obsessive and unable to set proper boundaries and limits or care for herself. Plaintiff also points to her medical record that notes her GAF score was 46 on October 25, 2001.
However, contrary to Plaintiff's argument, the ALJ's decision included a careful and detailed summary of the medical evidence of record. The ALJ included in that detailed summary both that Plaintiff's GAF score was 46 on October 25, 2001, and that after Dr. Guernsey increased Plaintiff's medication, Plaintiff was "obsessive and unable to set proper boundaries and limits or care for herself." (Tr. 19.) Further, having reviewed the medical records included in the administrative record, the Court has not found other significant evidence that the ALJ did not appear to take into account in reaching his decision. As a result, the Plaintiff's argument lacks merit and the Court rejects it.
F. Reliance on the Opinions of Non-treating DDS Physicians
Sixth, Plaintiff argues that the ALJ improperly acted when he essentially adopted the opinions of the non-examining DDS physicians. This argument lacks merit, and therefore the Court rejects it. Although the ALJ considered the DDS physicians' opinions, he did not wholly adopt those opinions, as Plaintiff suggests. Instead, the ALJ explained that since the agency medical experts had completed their reports of Plaintiff's condition, the mental Listings of Impairments had been significantly revised, so the state agency opinions were no longer completely on point, although still persuasive and instructive. (Tr. 15.) In his findings, the ALJ explained, "The state agency opinion is partially accepted but modified by new evidence and some testimony." (Tr. 23.) Moreover, the ALJ carefully considered the medical reports and opinions of several other doctors, including those of Drs. Holman and Guernsey, who were Plaintiff's treating physicians, and Dr. Ririe, who was Plaintiff's examining psychologist.
G. ALJ'S Interpretation of the Evidence
Finally, Plaintiff argues that the ALJ did not properly interpret and weigh the evidence. For example, Plaintiff argues that the ALJ did not properly weigh Plaintiff's GAF score of 46 after her medication dosage was increased, which evidences that Plaintiff's improvement with medication was not as extensive as the ALJ claimed.
As discussed above, the ALJ set forth in great detail Plaintiff's medical history, including that Plaintiff's GAF score was 46 and she was obsessive, unable to set proper boundaries and limits, and demonstrated anxiety, after Dr. Guernsey had increased Plaintiff's dosage of Zoloft. (Tr. 19.) The ALJ set forth all of this evidence in great detail and thus obviously considered it in making his findings and reaching his decision. Plaintiff simply appears to be asking the Court to reweigh the evidence, which the Court will not do. See White, 287 F.3d at 905 (The Court "`may neither reweigh the evidence nor substitute [its] judgment for that of the agency.'" (Citation omitted.)). Rather, the Court will evaluate whether substantial evidence supports the ALJ's decision. Having carefully reviewed the parties' briefs and the administrative record, the Court concludes that because a reasonable mind might accept the evidence presented in this case as adequate to support the ALJ's findings and conclusion, see Doyal, 331 F.3d at 760, substantial evidence supports the ALJ's decision. As a result, the Court rejects Plaintiff's argument.
RECOMMENDATION
Based on the above analysis, IT IS RECOMMENDED that Plaintiff's request for the Court to reverse or remand the Commissioner's decision be DENIED. Plaintiff has failed to show that the ALJ's decision is either legally erroneous or not supported by substantial evidence.
Copies of the foregoing Report and Recommendation are being mailed to the parties who are hereby notified of their right to object to the same. The parties are further notified that they must file any objections to the Report and Recommendation, with the clerk of the district court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.