Opinion
Case No. C2-01-0371
September 16, 2002
OPINION AND ORDER
On March 5, 2002, Magistrate Judge Michael R. Merz issued a Report and Recommendation affirming the decision of the Commissioner of Social Security that the Plaintiff was not disabled and therefore not entitled to disability benefits. On March 14, 2002, Plaintiff filed a timely objection to the Report and Recommendation together with a Memorandum of Law in support of such objections. The Commissioner of Social Security has in turn filed a Memorandum in Response. For the reasons that follow, the Court overrules the objections filed by the Plaintiff and adopts the Report and Recommendation of the Magistrate Judge.
I.
Plaintiff brings this action seeking judicial review of the final decision of Defendant, Commissioner of Social Security, denying his application for Social Security disability benefits. This Court, pursuant to 42 U.S.C. § 405(g) conducts judicial review limited to determining whether, when taken as a whole, the record contains substantial evidence to support the Commissioner's decision and is otherwise in accordance with law. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971).
The Plaintiff. William West, filed an application for Social Security disability benefits on October 16, 1997 Previously, on February 19, 1996, Plaintiff was the victim of a vicious assault inflicted upon him during the course of his employment delivering pizza. Mr. West was brutally struck with a bat and sustained a skull fracture, epidural hematoma, a frontal sinus fracture, lacerations of the left eye, and pneumocephalus. During the initial hospitalization, Plaintiff underwent surgery involving a craniotomy with evacuation of epidural hematoma, coagulation of middle meningeal artery, repair of dural lacerations, and an open reduction and internal fixation of a left malar fracture. Plaintiff underwent two surgeries in the same month as the assault and, thereafter, received inpatient rehabilitation.
Plaintiff was born on September 23, 1952. He is a high school graduate with previous work experience as a furniture delivery person and a pizza delivery driver. Mr. West has not worked since the date of the assault. After his release from inpatient rehabilitation services, the Plaintiff moved in with his parents. He currently resides in his own apartment and is able to cook, clean and attend to his personal needs. He is able to enjoy some outside entertainment including bow hunting, walking, and attending movies. Mr. West suffers from recurring headaches which cause him difficulty with concentration. He also has recurring, violent nightmares which oftentimes interrupt his sleep. He has post-traumatic stress disorder and organic personality syndrome.
A number of physicians have issued reports as to the issues on review by this Court. After the assault, Plaintiff spent approximately two weeks in rehabilitation at the Ohio State University Medical campus. Upon his discharge, he was evaluated by Dr. Madden, who performed a psychological evaluation of the Plaintiff on March 22, 1996. Dr. Madden concluded that the Plaintiff had problems with problem-solving, cognitive speed and flexibility, and bilateral sensorimotor deficits.
Mr. West has also been treated by Dr. Mysiw from the time of the assault until the present. At the time Plaintiff was admitted for hospitaliiatiun, Dr. Mysiw noted that he had difficulty writing sentences, problems with short term memory, and a disconjugate gaze. At the time of his discharge, Mr. West continued to have poor awareness, difficulty with route finding, poor insight and difficulty with problem-solving.
Dr. Dixon, a treating neurosurgeon, reported on April 16, 1996 that Plaintiff continued to have difficulty with perseveration of tasks and was in need of supervision. Dr. Dixon also noted that Mr. West had progressed well since the craniotomy. In his follow up visit to The Ohio University Medical Center clinic in May 1996, Plaintiff reported no problems with memory or attention. In August of 1996, he stated that his sleep had improved and his nervousness had subsided. Later, in November of 1996, he also reported less frequent nightmares.
The following year, on April 5, 1997, an examining psychologist, Dr. Baisden, reported that the Plaintiff spoke somewhat rapidly, was quite disorganized and was mildly depressed and anxious. He diagnosed the Plaintiff as suffering from post traumatic stress disorder and organic personality syndrome. Dr. Baisden assigned Plaintiff a GAF score of 55.
In March of 1998, examining neurologist Dr. Somple reported that the Plaintiff was alert and oriented, followed simple and complex commands and was able to engage in simple serial subtraction. He did note that the Plaintiff exhibited mild cognitive impairments and could perform such tasks as sitting, standing, walking, lifting, carrying and handling of objects without difficulty. He opined that the Plaintiff's mild mental impairments would limit his ability to perform tasks requiring sustained concentration and persistence.
On February 19, 1999, Dr. Leopold completed a physical capacities evaluation and determined that the Plaintiff could lift up to twenty pounds on a frequent basis, and could occasionally lift up to one hundred pounds. He also noted that the claimant's walking and standing had been affected by the impairment and that he could only stand or walk without interruption for two hours over an eight hour day. He also noted that the claimant could never squat, crawl or climb, and could not work around moving machinery or work at unprotected heights.
A similar evaluation was undertaken by Dr. Mysiw on February 22, 1999. He estimated that Plaintiff could lift up to twenty-five pounds on a regular basis and could occasionally lift up to one hundred pounds. He noted cognitive and neuro-behaviorial problems effecting Mr. West. He also noted some limitation with regard to working in unprotected heights or being around moving machinery and concluded that Mr. West could not be exposed to marked changes in temperature or to dust, fumes and gases. Dr. Mysiw noted that Mr. West "has perm cognitive deficits. He is alert and oriented and can direct his own care. However, there are ongoing problems with attention, memory, etc. Also, he has persistent problems with impulse control, anxiety, etc. The impairments are permanent." (Tr. 175)
At the hearing before the Administrative Law Judge, the Plaintiff, a neurological medical advisor and a vocational expert offered testimony. The medical advisor concluded that the record did not disclose any recent objective evidence of abnormality, that Plaintiff had no physical limitations, and that the only limitations placed on his work activities were strictly psychological. He also testified that there was no objective evidence of record which would establish an organic basis for Plaintiff's headaches.
The claimant testified that he suffers from debilitating headaches which prevent him from working. According to Mr. West, the pain prevents him from concentrating and requires him to lie down and take a nap. (Tr. 205, 213) He also estimated he had two to three headaches per day.
The vocational expert who attended the hearing responded to hypothetical questions posed by the Administrative Law Judge. According to the vocational expert, a hypothetical individual with the Plaintiff's impairments could perform approximately 50, 000 hand packing and assembly worker jobs existing in the State of Ohio. After the hearing, the vocational expert submitted a supplemental report indicating that the same hypothetical individual described by the ALJ could perform 1700 medium level and 250 light level custodial jobs, 400 food preparation jobs and 300 hand packing jobs in the region near Plaintiff's residence.
II.
The Administrative Law Judge analyzed the above summarized evidence in conformity with 20 C.F R. § 404.152. Judge Letts found that the Plaintiff suffered from a number of impairments including severe status-post multiple skull fractures, dysthymia. status-post closed head injury with epidural hematoma, headaches, and a low intellectual functioning. Judge Letts determined that Mr. West does not have an impairment or combination of impairments which meet or equal the Listing of Impairments, 20 C.F.R. Subpart P, Appendix 1. Although the claimant was not then working, Judge Letts determined that Plaintiff had the residual functional capacity for a limited range of medium work. Judge Letts concluded that, notwithstanding various limitations placed upon his work activities by physicians of record, there were a significant number of jobs in the economy which Mr. West is capable of performing. As a result, Judge Letts concluded that the Plaintiff was not disabled and therefore was not entitled to benefits. Thereafter, the Magistrate Judge issued a Report and Recommendation affirming the decision of the Administrative Law Judge in all respects.
III.
This matter is now before the Court for consideration of three objections raised by the Plaintiff to the Report and Recommendation of the Magistrate Judge. Pursuant to Fed.R.Civ.P. 72(b) this Court is required to make a de novo determination upon the record of any portion of the Magistrate Judge's Report and Recommendation to which written objection has been made.
The Plaintiff first contends that the Magistrate Judge erred in concluding that the Administrative Law Judge did not abuse his discretion by not ordering a consultative examination. At the conclusion of the administrative hearing, the ALJ stated that "what I am going to do is send him off for further evaluation." (Tr. 227) Thereafter, for reasons not expressed on the record, the ALJ chose not to seek additional medical evaluation and proceeded to render his decision in the case.
It is without question that the Administrative Law Judge may require additional medical testing or evaluation after the completion of a hearing. 20 C.F.R. § 416.917. As recently noted by the Sixth Circuit, "[T]he regulations do not require an ALJ to refer a claimant to a consultative specialist, but simply grant him the authority to do so if the existing medical sources do not contain sufficient evidence to make a determination." Foster v. Halter, 279 F.3d 348, 355 (6th Cir. 2001) quoting Landsaw v. Secretary of Health and Human Services, 803 F.2d 201, 214 (6thCir. 1986).
Notwithstanding the ALJ's statement, the question before this Court is whether the record contained sufficient medical sources, including test results, evaluations, assessments, and opinions, upon which a reasoned decision could be made by the ALJ. In this Court's view, the record contains sufficient evidence concerning Plaintiff's impairments for such a decision to be made. While an additional consultative evaluation could have provided the ALJ with an additional basis upon which to evaluate what is clearly conflicting medical evidence in this case, the Court cannot conclude that the ALJ was required to seek such additional medical evidence given the record compiled below.
The Plaintiff next contends that the Magistrate Judge erred by determining that the ALJ sufficiently explained his reasons for rejecting the opinion of Mr. West's treating physician. The Administrative Law Judge observed that Dr. Mysiw's opinion was not bolstered by objective medical test results and was simply conclusory. Further, the conclusions reached by Dr. Mysiw are inconsistent with Plaintiff's own subjective complaints. Dr. Mysiw's previous treatment notes indicate that the Plaintiff himself reported that progress had been achieved in his sleeping patterns, that his nervous condition had improved, and that his temper was under control. Because of this inconsistency, the fact that Dr. Mysiw did not explain the incongruity between his conclusions and the Plaintiff's subjective complaints, coupled with the lack of objective findings, provided a proper basis for which to reject Dr. Mysiw's conclusions. Further, his conclusions are at variance with a number of other physicians of record as outlined above.
Both the caselaw and governing regulations require the ALJ to consider, and if appropriate, give deference to the opinion of a treating physician. 20 C.F.R. § 416.927; Walters v. Commissioner of Social Security, 127 F.3d 525, 530 (6th Cir 1997). Nonetheless, an ALJ is not required to accept the opinion of a treating physician if such physician's opinion is not supported by clinical findings and is inconsistent with other substantial evidence in the record. Analyzed under this standard, the decision of the ALJ to reject the opinion of the treating physician is supported by substantial evidence.
Finally, the Plaintiff contends that the ALJ erred in finding that he was not functionally illiterate. The record is to the contrary. Dr. Prince reported that the Plaintiff's reading level was that of a third grade student. Plaintiff himself testified that he reads the newspaper, the Bible, and western novels. No physician or medical expert of record opined that the Plaintiff was actually or functionally illiterate. Thus, the ALJ decision on Plaintiff's literacy is supported by substantial evidence.
IV.
Based upon the foregoing and, pursuant to Fed.R.Civ.P. 72(b), after a de novo determination of the record, this Court concludes that the objections to the Report and Recommendation of the Magistrate Judge are without merit. The Report and Recommendation of the Magistrate Judge is AFFIRMED in all respects. The Commissioner's decision that Plaintiff is not disabled and therefore not entitled to benefits under the Social Security Act is therefore AFFIRMED.
The Clerk is DIRECTED to remove this case from the Court's active case list.