Opinion
Civil No. 00-0059 LH/WWD.
January 4, 2001.
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
Proposed Findings
1. This matter comes before the Court upon Plaintiff's Motion to Reverse and Remand for a Rehearing, filed August 2, 2000 [docket # 6].
The motion package was actually filed with the Court on August 2, 2000, although the motion was served on May 19, 2000.
The Commissioner denied Plaintiff's request for Social Security Disability Insurance, Supplemental Security Income, and Disabled Insured Widows Benefits.
2. Plaintiff was 61 years old at the time of the administrative decision, and 57 years of age at her alleged date of onset (February 5, 1994), making her an individual of advanced age at all times relevant to her claim. She has a general equivalency degree (GED) and vocational training as a Licensed Practical Nurse, and has worked in the nursing field. Plaintiff alleges a disability due to depression and pulmonary coccidioidomycosis (also called Valley Fever, see Tr. at 233, 316-18), which she alleges causes shortness of breath, headaches, skin disease, arthritis, frequent infections, and bronchitis.
3. After conducting an administrative hearing, the Commissioners Administrative Law Judge ("ALJ") denied the applications, concluding that Plaintiff had severe impairments due to status post gallstone pancreatitis, cholecystectomy and malingering, but that she nevertheless had the residual functional capacity (RFC) to perform some light and sedentary work. The Appeals Council affirmed the ALJs decision. Plaintiff now seeks review of that final decision pursuant to 42 U.S.C. § 405 (g).
4. The standard of review in social security appeals is whether the Commissioners final decision, in this case the ALJ's decision, is supported by substantial evidence. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993) (citations omitted). Additionally, the Commissioners final decision can be reversed if the ALJ failed to apply the correct legal tests. Id. (citation omitted).
5. Plaintiff raises the following allegations of error with respect to the ALJ's decision: (1) the ALJ misstated the issue in this case; (2) the ALJ improperly assessed Plaintiffs Mental Impairment; (3) the ALJ improperly evaluated Plaintiffs complaints of disabling pain; (4) the ALJ incorrectly concluded that Plaintiff could perform light work; (5) the ALJ erroneously found that Plaintiff could perform work above her RFC level; (6) the hypothetical questions the ALJ posed to the vocational expert were incomplete; and (7) Plaintiff should be found disabled based on the grids.
6. To qualify for disability benefits, a claimant must establish a severe physical or mental impairment expected to result in death or last for a continuous period of twelve months which prevents the claimant from engaging in substantial gainful activity." Thompson at 1486 (citing 42 U.S.C. § 423 (d)(1)(A), § 1382c(a)(3)(A)). Social Security Regulations require the Commissioner to evaluate five factors in a specific sequence in analyzing disability applications. Id.; see 20 C.F.R. § 404.1520(a — f); 416.920. The sequential evaluation process ends if at any step the Commissioner finds that the claimant is disabled or not disabled. Id. (citations omitted).
7. Plaintiff was diagnosed with Valley Fever in 1989. Tr. at 316.
She stopped working in 1994 because she kept making errors when handling money, and could not handle patients or the stress. She states that she can walk about a block and a half, sit or stand for 30 minutes at a time and lift up to 10 pounds. Tr. at 91-92.
First Alleged Error
8. Plaintiff alleges that the ALJ misstated the issue in this case because Plaintiffs mental impairments were not included, and because a diagnosis of malingering should not have been included. There is no merit to this allegation. Even if the issue was misstated by the ALJ because it did not include all of the alleged impairments, the error is harmless, since the ALJ properly evaluated and considered all of the impairments. See Benskin v. Bowen, 830 F.2d 878, 883 (8th Cir. 1987); see Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (arguable deficiency in opinion-writing technique is not a sufficient reason for setting aside an administrative finding where deficiency probably had no practical effect on the outcome of the case).
Second Alleged Error
9. Plaintiff contends that the ALJ improperly assessed Plaintiffs Mental Impairment, specifically that a diagnosis of malingering is not supported by the record, and that Ms. Brewers depression is a severe impairment.
Included in Plaintiffs allegation of a mental impairment is a short-term memory loss that affects her ability to concentrate as well as her ability to remember and carry out instructions.
The ALJ stated that Ms. Brewers mental impairment not only did not meet a listed impairment but was non-severe. Tr. at 40. While an impairment may not satisfy the requirements to be considered a listed impairment, it may nonetheless be severe enough to have a significant effect on a claimants ability to work.
10. When there is evidence of a mental impairment that allegedly prevents a claimant from working, the Commissioner must follow a special procedure for evaluation of mental impairments set forth in 20 C.F.R. § 404.1520a. See Cruse v. U.S. Dept of Health Hum. Serv., 49 F.3d 614, 616 (10th 1995). This procedure involves not only looking to see if an impairment falls within Parts A and B of a listed impairment, but also completing a Psychiatric Review Technique Form (PRT) for a determination of a claimants mental residual functional capacity. Id. at 618.
11. The ALJ considered the reports of Dr. Abbott, a family practitioner who reported that Plaintiffs depression left her unable to pursue gainful employment, and opined that the degree of impairment was moderate to severe. Tr. at 38, 253. Dr. Tucker saw Plaintiff in 1994 and 1995 for bronchitis, and that despite her chronic pulmonary problems, Plaintiff continued to smoke a pack a day. Tr. at 336.
Dr. Tucker mentioned that Plaintiff was using Trazodone and Paxil for depression and that she was seeing Dr. Abbot for depression. Tr. at 243, 336.
12. In 1995, Plaintiff saw Dr. Zimberoff, a licensed psychologist. When Ms. Brewer was asked what specifically interfered with her inability to work, she stated the problem was short-term memory loss. Yet Dr. Zimberoff stated that Plaintiff easily follows instructions, and that her short-term memory was fairly good, also noting that there were no signs of pain behavior or unusual fatigue, although Plaintiff complained of these symptoms as well. Tr. at 258-59.
In his decision, the ALJ noted that Plaintiff told Dr Zimberoff that she babysits five grandchildren, ranging in age from ages 3 through 12.
At the 1997 hearing, she told the ALJ that she shared her time living with her different children and that some of them have younger children who agitated her. Tr. at 97, 102.
13. In May, 1996, Carmen Martin Lara, Ph. D. conducted a battery of psychological tests, including the WAIS-R, a Mental Status Test and the MMPI. The psychological report contained a diagnosis of malingering, stating that Plaintiff showed clear signs of additional gain by feigning mental illness. Tr. at 344-354.
Dr. Laras diagnosis did not simply comment on Plaintiffs malingering, but solidly relied on objective and reliable psychological data in presenting this opinion.
14. According to the report, Plaintiff manipulated the data and had a fake bad profile.
In other words, like other patients who obtained similar scores on these by deliberately faking the responses on these tests, she was motivated to appear inadequate or incompetent, and sought to escape responsibilities through apparent psychiatric disability. Tr. at 38, 352.
Dr. Lara noted that Plaintiffs complaints were about lack of memory and concentration, but when it was suggested that these symptoms could be related to medication side effects, Plaintiff became very angry and hostile, and defensive when questioned about a diagnosis of Major Depression. Tr. at 347.
Dr. Lara also opined that Ms. Brewer was possibly abusing prescription medication and recommended an evaluation by a psychiatrist for this.
15. Although the ALJ considered all medical reports, he disregarded all of them and instead relied on Dr. Laras report in determining Plaintiff to be malingering.
The ALJ recognized that although malingering is not a recognized mental impairment under social security regulations, the diagnosis was nevertheless consistent with Plaintiffs motivations in this case: e.g., avoiding work, obtaining financial compensation, or obtaining drugs. Tr. at 40, n. 2 and accompanying text.
Plaintiff argues that the ALJ erred in relying on the report of this one-time visit in determining that Plaintiffs alleged mental impairments were not severe. However, the ALJ is entitled to reject opinions of treating physicians where they are not supported by specific findings, or when they are unsupported by or inconsistent with other objective evidence of record. See Hamilton v. Secy of HHS, 961 F.2d 1495, 1498 (10th Cir. 1992); Castellano v. Sec. of Health Hum. Serv., 26 F.3d 1027, 1029 (10th Cir. 1994); 20 C.F.R. § 416.925, 404.1527(d).
16. Defendants arguments on this issue are well-taken. As the Appeals Council noted, Dr. Abbot is a family practitioner, whereas Dr. Lara is a specialist in the evaluation of mental impairments. Tr. at 6.
Specialist's opinions are accorded more weight. See Goatcher v. Dep't of Health Hum. Serv., 52 F.3d 288, 289 (10th Cir. 1995); 20 C.F.R. § 404.1529(d)(5) 416.927(d)(5)(1995). Also, the ALJ gave specific reasons for disregarding or discounting Dr. Abbots opinion. See Sorenson v. Bowen, 888 F.2d 706, 711 (10th Cir. 1989) (ALJ must give specific, legitimate reasons for disregarding opinion of the claimant's physician).
17. I find that the ALJs determination regarding Ms. Brewers mental impairments is supported by the evidence. In addition to Dr. Laras report, Plaintiff was being treated for her depression with some success, see Tr. at 256, and Dr. Zimberoffs report provides another basis for an inconsistency between Plaintiffs allegations of a disabling mental impairment and the objective medical evidence.
18. The ALJ called on a medical consultant at the first hearing.
Plaintiff was not present at the March 5, 1996 hearing, but did attend a subsequent hearing scheduled for July 9, 1997.
This medical expert reviewed the record and opined that Plaintiffs mental impairment came under an affective disorder, under § 12.04 in the listings; a sleep disorder, decreased energy, feelings of guilt or worthlessness, difficulty concentrating with memory loss, and irritability. Tr. at 63, However, in assessing Plaintiffs mental residual functional capacity, the expert stated that these impairments posed no limitations for most areas of functioning, with a moderate limitation on an ability to understand and remember detailed instructions and only a mild limitation on an ability to maintain attention and concentration for extended periods Tr. at 66-67; 366-67.
19. Based on the record, the expert testified that Plaintiffs mental impairment was mostly mild to moderate. He acknowledged that Dr. Abbots report indicated a moderate to severe depression, but was not sure what all criteria he used to come to that conclusion. Tr. at 68-68. When questioned by Plaintiffs attorney, the medical consultant stated that based on Dr. Abbots reports, Plaintiff would experience moderate depression every two to three months which could last a week or more, and that this could intensify the symptoms related to areas of functioning. Tr. at 69.
Specifically, Plaintiffs ability to maintain attention and concentration would move to a moderate to perhaps marked level; ability to perform activities within a schedule would go from not limited to moderately limited, and the ability to both complete a normal workday and interact appropriately with the general public would probably be moderately limited. Tr. at 69, 367.
20. There is some confusion over whether the special procedures discussed in Cruse applies to this case. Although Defendant argues that it does not, it appears to me that the ALJ nevertheless followed them to the letter, but in the end deciding that they did not have any significant effect on Plaintiffs ability to work. Under the relevant social security regulations, 20 C.F.R. § 404.1520(b), a claimants ability to function in four work-related areas are examined,
21. In this case, the PRT completed by the DDS reviewer as well as the medical expert showed that Plaintiffs mental impairment would be considered not severe. Tr. at 144, 364.
The ALJs conclusion that Plaintiffs depression or other alleged mental impairments did not meet a listed impairment is supported by the medical evidence. See 20 C.F.R. Subpart B, App. 1, § 12.04 (Part B). However, because an impairment may be severe enough to have a significant effect on a claimants ability to work, even if it is not considered a listed impairment, special procedures would require an assessment of Plaintiffs mental RFC. The ALJ had the medical consultant do this, and even included the alleged impairments in one of the hypotheticals to the vocational expert, Tr. at 111-12, although in the end the ALJ disregarded the inclusion of the mental impairments based on his findings regarding Plaintiffs malingering.
A determination of mental RFC is crucial to evaluation of an individuals capacity to engage in substantial gainful work activity. Cruse, 49 F.3d at 618. 8 corresponding to Part B of the listed impairment. See § 12.04 (affective disorders). Ratings of none or slight in the first and second of the essential work-related functions, never or seldom in the third, and never in the fourth, dictate a finding that the impairment is not severe.
22. Accordingly, relief should be denied on this alleged error. I find that the ALJ did not err in his assessment of Plaintiffs mental impairment, either in the conclusion that the diagnosis of malingering allowed him to disregard Plaintiffs subjective complaints and Dr. Abbots reports, or in the finding that Plaintiffs depression was not severe and did not affect Plaintiffs ability to engage in other work.
Third Alleged Error
23. Plaintiff contends that the ALJ improperly evaluated Plaintiffs complaints of disabling pain, which relates to the ALJs finding of noncredibility in Plaintiffs allegations that she could not work because of her Valley Fever symptoms of joint and back pain. A claimant's subjective complaint of pain is by itself insufficient to establish disability. See Talley v. Sullivan, 908 F.2d 585, 587 (10th Cir. 1990).
24. Contrary to Plaintiffs assertions, the ALJ properly analyzed Ms. Brewers allegations of pain, such as the entire case record, including the objective medical evidence, the individuals own statements about symptoms, statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence in the case record. SSR 96-7p.
Pain that is disabling must be so severe, by itself or in conjunction with other impairments, so as to preclude any substantial gainful employment. Brown v. Bowen, 801 F.2d 361, 362 (10th Cir. 1986).
25. The ALJ found that Plaintiff exaggerates her allegations of pain and prevaricates her symptoms and description of pain. Tr. at 45.
The ALJ was entitled to make this conclusion, because it was based on the evidence in the record, which included physicians reports concerning Ms. Brewers pain symptoms, Plaintiffs daily activities and the inconsistency of her testimony and complaints with the objective evidence, including that of Drs. Davis and Tucker. Tr. at 233, 243,420. For example, Dr. Tucker opined that depression . . . probably explains most of [Plaintiffs] symptoms. Tr. at 234.
Moreover, according to her own testimony, Plaintiff stopped working not because of her Valley Fever symptoms, but because of the stress and making too many mistakes. See Musgrave v. Sullivan, 966 F.2d 1371, 1376 (10th Cir. 1992) (Commissioner properly discounted claimants nonexertional impairment complaints due to lack of corroborative evidence and consulting physicians suspicion that claimant was malingering).
Plaintiff testified that short-term memory loss and loss of concentration caused her to make mistakes at work which resulted in termination. Tr. at 90, 94, 99-100, 101.
26. Thus, I find no error by the ALJ relating to Plaintiffs complaints of disabling pain.
Fourth Alleged Error
27. Plaintiff asserts that the ALJ incorrectly concluded that Plaintiff could perform light work. The thrust of the argument is that there is no evidence in the record that Ms. Brewer can perform light work. Plaintiff is correct that Dr. Davis treatment of Plaintiff concerned surgery and post-operative follow-up for a cholecystectomy, Tr. at 416-20, and should not be used as a basis for Plaintiffs ability to work due to her other conditions.
28. However, I find that Dr. Tuckers reports do not indicate that Plaintiff cannot perform light work, or at least sedentary work (under the grids, Plaintiff would be found not disabled on either basis with transferable skills, see § 201.07, and § 202.07). Dr. Tuckers statement that Plaintiff has been disabled due to her symptoms of cough, fatigue, weight gain and insomnia is not a sufficient basis for a finding that she does not have the RFC for light work. Tr. at 233. The Commissioner, not a physician, is responsible for examining medical source opinions and making the determination on whether claimant meets statutory definition of disability. See Castellano v. Secy of HHS, 26 F.3d 1027, 1029 (10th Cir. 1994); SSR 96-5P (determination of disability is function reserved solely to the Commissioner); 20 C.F.R. § 404.1527(e)(1).
29. Ms. Brewer stated that she could stand 30 minutes, sit 30 minutes, walk up to 1~ blocks, and lift 5 to 10 pounds frequently. Tr. at 91-92.
Dr. Gerald Gardner, a DDS reviewer, completed an RFC assessment based on the evidence, which resulted in the finding that Plaintiff could perform light work.
Light work involves lifting no more than twenty pounds at a time with frequent lifting or carrying of objects weighing up to ten pounds, requires a good deal of walking, standing, or pushing and pulling when sitting is involved. SSR 83-10; 20 C.F.R. § 404.1567(b), 416.967(a) (1986). The full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the remaining time. Id.
Sedentary work involves lifting no more than ten pounds at a time, no more than two hours of walking and standing a day, and a total of six hours of sitting a day. SSR 83-10; 20 C.F.R. § 404.1567(a).
While Dr. Tuckers reports, upon which Plaintiff relies, describes and discusses Ms. Brewers chief complaints, they do not suggest that Plaintiff is limited or otherwise precluded from doing light work, as indicated in the RFC assessment. Therefore, I find that the ALJ correctly concluded that Plaintiff could do light work.
Fifth Alleged Error
30. Plaintiff alleges that the ALJ erroneously found that Plaintiff could perform work above her RFC level. Plaintiffs contention here is based entirely on a misconception regarding Plaintiffs previous work as a licensed practical nurse. Plaintiff argues that Ms. Brewer does not have the RFC to work as a Telemetry Monitor because she previously worked at a job that has a lower vocational profile, and therefore does not have the necessary transferable skills. The Dictionary of Occupational Title (DOT) categorizes jobs according to vocational preparation level (or SVP), using different prefix numbers to indicate the level. The higher the SVP number, the longer the training period is to learn the skills for that occupation.
31. According to the vocational expert (VE) who testified at the hearing, Plaintiff could perform work as a telemetry monitor, which has an SVP of 5. Tr. at 110.
She stated that there are about 1,000 such jobs in the region and 30,000 nationally. Tr. at 110-111. Plaintiff maintains that the previous nursing experience belonged in the DOT category of # 354.374.010 with an SVP of 4. Because her previous work experience was at a lower skill level than that of a telemetry monitor, and skills cannot transfer to a higher level, see 20 C.F.R. § 404.1568(d)(2), SSR 82-41, Plaintiff cannot perform that work and is disabled under the grids.
32. However, at the hearing, the vocational expert (VE) based her opinion on the assumption that Plaintiffs previous work as an Licensed Practical Nurse (L. P. N.) was at an SVP level of 6 instead of 4 — looking at the DOT entry # 354.374-010. Although counsel withdrew her objection at the hearing, Tr. at 109, she now returns with the argument, which is misplaced, since the two DOT entries related to practical nurses are easily distinguishable in this case. The lower SVP level of 4 is for Nurse, Practical. DOT # 354.374-010. The higher SVP level of 6 is for Nurse, Licensed Practical. DOT # 079.374-014 (emphasis added). The record, including Plaintiffs statements and description of her past job duties, is consistent with the fact that Ms. Brewer worked as an LPN, Tr. at 98, 195.
Despite counsels persistent efforts to downgrade Plaintiffs previous nursing experience, Tr. at 93, clearly the DOT nursing occupation with the SVP of 6 was correct.
33. At the hearing, Plaintiff stated that she did telemetry work for two years, but not enough to be comfortable with it. Tr. at 106.
Nevertheless, she performed that work for two years as part of her former job, and obviously has the skills and qualifications for this work. Her ability to do this work is consistent with the ALJs finding that Plaintiff does not have the RFC to perform her past work because telemetry was only one part of her former job — the sedentary aspect. This allegation should be dismissed as having no merit.
The ALJ erroneously referred to the DOT nursing occupation as Nurse Practitioner, DOT 075.274.010, which requires intensive medical training and involves some dispensing of primary care. Tr. at 45, n. 3.
However, this error in job title is harmless, since the ALJ based the findings themselves on the appropriate job description and on the vocational testimony that used the correct job title.
Sixth Alleged Error
34. Plaintiff contends that the hypothetical questions the ALJ posed to the vocational expert were incomplete, specifically that the hypothetical disregarded Plaintiffs mental impairment. The VE opined that an inability to remember both simple and complex instructions over time would eliminate all jobs.35. There is no merit to this allegation because the ALJ properly disregarded the allegations of mental impairment, as described above. See Hargis v. Sullivan, 945 F.2d 1482, 1491 (10th Cir. 1991) (testimony elicited by hypothetical questions that do not relate with precision all of a claimant's impairments cannot constitute substantial evidence to support the [Commissioners] decision"). The ALJ made conclusions regarding Plaintiffs mental abilities, Tr. at 41, and gave reasons supported by the record for discounting Plaintiffs mental impairments.
Thus, he was justified in excluding those impairments from consideration Seventh Alleged Error 36. Plaintiff contends that she should be found disabled based on the grids. The crux of this argument is based on whether or not Plaintiff is found to have transferable skills, and relates to the discussion under the fifth alleged error. Because I have found that Plaintiffs skills are indeed transferable, this allegation needs no further discussion.
37. In sum, I find that (1) the ALJ did not misstate the issue in this case, and if he did, the error is de minimis; (2) the ALJ properly assessed Plaintiffs Mental Impairment; (3) the ALJ properly evaluated Plaintiffs complaints of disabling pain; (4) the ALJ correctly concluded that Plaintiff could perform light work; (5) the ALJ correctly found that Plaintiff could perform work above her RFC level; (6) the hypothetical questions the ALJ posed to the vocational expert were complete; and (7) Plaintiff should not be found disabled based on the grids.
Recommendation
I recommend that Plaintiff's Motion to Reverse and Remand for a Rehearing [docket # 6] be DENIED and that this cause of action be DISMISSED WITH PREJUDICE. Timely objections to the foregoing may be made pursuant to 28 U.S.C. § 636(b)(1)(C).