Opinion
NO. 1:01-CV-229
January 17, 2003
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case is referred to the undersigned United States Magistrate Judge for review, hearing if necessary, and submission of a report with recommended findings of fact and conclusions of law.
See 28 U.S.C. § 636(b)(1)(B) (2001) and Local Rules for the Assignment of Duties to United States Magistrate Judges.
I. Nature of the Case
This is an action wherein plaintiff seeks judicial review of the Commissioner of Social Security Administration's final determination denying plaintiff's application for Social Security disability benefits. The court has jurisdiction pursuant to 42 U.S.C. § 405(g) (2001).II. Proceedings
Plaintiff applied for disability insurance benefits on July 28, 1998, alleging an onset of disability beginning February 28, 1998. Tr. 50, 52. Plaintiff claimed disability due to a herniated disc (Tr. 52) and mental depression (Tr. 79).After administrative denial of her claim initially and on reconsideration, she requested and was granted a hearing before an administrative law judge ("ALJ"). That hearing was conducted on October 19, 1999, before ALJ Peter F. Belli. Judge Belli issued a decision denying benefits on November 16, 1999.
On March 9, 2001, the Appeals Council denied plaintiff's request for review and upheld ALJ Belli's decision (Tr. 4-5). Plaintiff timely filed the instant appeal in federal court on April 12, 2001.
III. Judicial Review
Judicial review is limited. The court's abbreviated role is to determine whether (a) the Commissioner applied proper legal standards and (b) the decision is supported by substantial evidence. See Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).
Substantial evidence is more than a scintilla, but less than a preponderance, Anthony, 954 F.2d at 292; it requires evidence relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1427 (1971); Marcello v. Bowen, 803 F.2d 851, 853 (5th Cir. 1986) (citing Jones v. Heckler, 702 F.2d 616, 620 (5th Cir. 1983).
To determine whether substantial evidence exists to support the ALJ's findings, the entire record must be scrutinized carefully. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. denied 514 U.S. 1120, 115 S.Ct. 1984 (1995); Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983). The court in reviewing the record may not, however, reweigh the evidence or review the ALJ's decision de novo. Haywood v. Sullivan, 888 F.2d 1462, 1466 (5th Cir. 1989); Neal v. Brown, 829 F.2d 528, 530 (5th Cir. 1987). Rather, it is for the Commissioner to weigh evidence and resolve conflicts. See Anthony, 954 F.2d at 295; Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
If proper principles of law were applied, and if the Commissioner's decision is supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co., 305 U.S. at 230, 59 S.Ct. at 217); see also, 42 U.S.C. § 405(g) (2001).
By local orders of the court, complaints seeking judicial review of administrative decisions denying applications for social security benefits are treated as appeals. The party seeking review is required to specify alleged points of error, and to submit a brief containing legal arguments directed to those points. The Commissioner is ordered to file a brief in response. The court limits the scope of its judicial review to the points argued in the briefs.
IV. Eligibility for Disability Insurance Benefits
To qualify for disability insurance benefits, the plaintiff must meet the requirements set forth in the Social Security Act ("Act"). See 42 U.S.C. § 423(a) (2001). That is, the plaintiff must be under age 65, file an application for such benefits, and be under a disability as defined by the Act. See 42 U.S.C. § 416(I), 423(a) (2001). Those claiming disability insurance benefits under the Act have the burden of showing the existence of a disability. Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir. 1979), cert. denied, 444 U.S. 952, 100 S.Ct. 428 (1979); Rhynes v. Califano, 586 F.2d 388 (5th Cir. 1978); Kirkland v. Weinberger, 480 F.2d 46 (5th Cir.), cert. denied, 414 U.S. 913, 94 S.Ct. 255 (1973).
The Act defines a disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A) (2001). A physical or mental impairment is one which "results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3) (2001). A claimant is disabled "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A) (2001).
Establishment of a disability is thus a dual process. First, the claimant must prove that he suffers from a medically determinable impairment. 42 U.S.C. § 416(I)(1), 423(d)(1)(A) (2001). Second, the claimant must prove that his impairment or combination of impairments renders him unable to engage either in the work he previously performed or other substantial gainful employment that exists in the national economy. 42 U.S.C. § 416(I)(1), 423(d)(2) (2001).
V. Sequential Evaluation Process
The law requires, in every case, that the Commissioner determine whether the claimant has a disability. See Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952 (1983). The Commissioner utilizes a five-step sequential evaluation analysis to aid in determining when claimants are disabled. If a claimant is found not to be disabled at any step, the remaining steps are not considered. 20 C.F.R. § 404.1520 (2002). This procedure has judicial approval as a fair and just way for determining disability applications in conformity with the Social Security Act. See Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 2297 (1987) (citing Heckler v. Campbell, 461 U.S. at 461, 103 S.Ct. at 1954) (The use of the sequential evaluation process "contribute[s] to the uniformity and efficiency of disability determinations").
The five steps — with explanatory parenthetical commentary — generally are as follows:
The Commissioner ascertains whether the applicant is currently engaging in substantial gainful activity. (If so, a finding of non-disability is entered and the inquiry ends.)
The Commissioner determines if the applicant's impairment or combination of impairments is severe, that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities. (If not, the inquiry ends and a finding of non-disability is entered.)
The Commissioner determines whether the severe impairment equals or exceeds those in the Listing of Impairments, 20 C.F.R. Subpt. P, Appendix 1 ("the Listings"). (If so, disability is presumed and benefits are awarded.)
The Commissioner determines whether the impairment prevents the individual from engaging in his regular previous employment. (If so, a prima facie case of disability is established and the burden of going forward (to the fifth step) shifts to the Commissioner. See Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987)).
The Commissioner determines whether other work exists in the national economy which the applicant can perform. (If the Commissioner establishes that an applicant can perform alternative employment, the burden shifts back to the applicant to show he cannot perform the alternative labor. See Id.; Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986); 20 C.F.R. § 404.1520(a)-(f) (2002)).
A. Corollary Procedure for Mental Impairments
The Commissioner utilizes a corollary sequential procedure for determining merits of mental disability claims. Essentially, this procedure substitutes specialized rules at Step 2 for determining whether mental impairments are severe, and also provides detailed guidelines for making Step 3 determinations as to whether mental impairments meet or exceed severity of mental impairments contained in the Listings.First, the Commissioner evaluates the claimant's pertinent symptoms, signs, and laboratory findings to determine whether the claimant has a medically determinable mental impairment. If such impairment is found, the Commissioner then:
1. records the symptoms, signs and laboratory findings that substantiate the impairment in a "PRTF Form," a standard document included in the administrative decision, as required by 20 C.F.R. § 404.1520a(e) (2002); and
2. rates the degree of functional limitation in four areas — activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation — as specified in 12.00C of the Listing of Impairments ( 20 C.F.R. § 404.1520a(c) (2002)); and
The "Psychiatric Review Technique Form" (PRTF) is a standard document utilized by adjudicators in compliance with regulations. See Soc. Sec. Ruling 96-8p (1996); see also Boyd v. Apfel, 239 F.3d 698, 705 (5th Cir. 2001). The form provides a scale for each area under evaluation.
Restrictions of activities of daily living and difficulties in maintaining social functioning are rated as "none, slight moderate, marked, extreme, or insufficient evidence" ("marked" or "extreme" being the degree of limitation that satisfies the requirements of the Listings).
Deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner (in work settings or elsewhere) are rated as "never, seldom, often, frequent, constant, or insufficient evidence" ("frequent" or "constant" being the degree of deficiency that satisfies the requirements of the Listings).
Episodes of deterioration or decompensation in work or work-like settings which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms are rated as "never, once/twice, repeated (3+), continual, or insufficient evidence" ("repeated" or "continual" being the frequency which meets the requirements of the Listings).
3. determines the severity of mental impairments.
When an impairment is not severe, the inquiry generally ends "unless the evidence otherwise indicates that there is more than a minimal limitation in your ability to do basic work activities." 20 C.F.R. § 404.1520a(d)(1) (2002). When a severe mental impairment is found, the Commissioner determines whether the impairment meets or exceeds the requirements of the Listings. 20 C.F.R. § 404.1520a(d)(2) (2002). When the severe mental impairment does not meet Listing requirements, the Commissioner then assesses the claimant's residual functional capacity. 20 C.F.R. § 404.1520a(d)(3) (2002). See also, Boyd, 239 F.3d at 705.
This corollary procedure, while befitting in principle, has not always enjoyed judicial approval. The Fifth Circuit concluded in several instances that the Commissioner's approach to defining severity of a mental impairment conflicted with the Social Security Act. See Estran v. Heckler, 745 F.2d 340 (5th Cir. 1984); Davis v. Heckler, 748 F.2d 293 (5th Cir. 1984); Loza v. Apfel, 219 F.3d 378 (5th Cir. 2000). See also Brady v. Heckler, 724 F.2d 914 (11th Cir. 1984). Specifically, the Fifth Circuit noted that the Commissioner permitted severity determinations to be made on medical severity alone, and without regard to vocational factors. Thus, Application of the Commissioner's rule could result in denial of benefits to persons unable to engage in substantial gainful activity. Accordingly, in Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985), the Fifth Circuit declared that severity of an impairment must always be determined with regard to an individual's ability to perform substantial gainful employment, and cannot be based on medical severity alone. Moreover, the Fifth Circuit articulated the correct severity standard as:
The Commissioner's regulation in effect at the time stated:
"Medical considerations alone can justify a finding that the individual is not under a disability where the only impairment is a slight neurosis, slight impairment of sight or hearing, or other slight abnormality or a combination of slight abnormalities."20 C.F.R. § 404.1520(a) (1968).
"[A]n impairment can be considered as not severe only if it is a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience."
Id., 752 F.2d at 1101, (quoting Estran, 745 F.2d at 341).
Finally, the Fifth Circuit's opinion states:
"[W]e will in the future assume that the ALJ and Appeals Council have applied an incorrect standard to the severity requirement unless the correct standard is set forth by reference to this opinion or another of the same effect, or by an express statement that the construction we give to 20 C.F.R. § 404.1520(c) (1984) is used."
Id., 752 F.2d at 1106.
The Commissioner has now revised her regulations to address the deficiency noted in Stone v. Heckler. Notwithstanding this change, however, the rule of Stone v. Heckler remains firmly in place in the Fifth Circuit.
The regulation now states:
"If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience."20 C.F.R. § 404.1520(c) (2002) (italics added).
B. Residual Functional Capacity
Under both sequential evaluation models, there is a residual functional capacity determination when a claimant has a severe impairment that does not meet or exceed the severity of impairments contained in the Listings. That is, the Commissioner decides whether the applicant, notwithstanding severe impairment, has the physical and mental ability to perform activities generally required by competitive, remunerative work. See 20 C.F.R. § 404.1545 (2002); Soc. Sec. Ruling 96-8p, 61 F.R. 34474 (July 2, 1996). The Commissioner assesses the applicant's physical, mental, and sensory abilities, evaluates how they apply to the applicant's work-related functioning, and finally considers whether the applicant can sustain work-related activities in a work setting on a regular and continuing basis. Id. Thereafter, the Commissioner determines if claimant has the physical and mental abilities to perform past relevant work. See Chaparro, 815 F.2d at 1010. If the applicant's RFC meets or exceeds the requirements of regular previous employment, the disability claim is denied. See 20 C.F.R. § 404.1561 (2002). If not, however, the inquiry proceeds to step 5 where the Commissioner has the burden to show that the applicant can do work as it is generally performed in the national economy. See Chaparro, 815 F.2d at 1010; 20 C.F.R. § 404.1566 (2002).
Residual functional capacity is defined as "what you can still do despite your limitations." 20 C.F.R. § 404.1545(a) (2002). It has three components: physical abilities, mental abilities, and other abilities affected by impairments. See 20 C.F.R. § 404.1545(a) (2002).
VI. Evidentiary Record A. Vocational and Factual Background
Plaintiff is a female who, at the time of the evidentiary hearing, was 44 years of age. Plaintiff completed high school and some technical training. She has worked as an engineering clerk, bank teller, secretary, and computer technician. Tr. 56.
Plaintiff was involved in an automobile accident in which her vehicle was struck from behind. That accident occurred on September 9, 1996, and caused lower back pain and neck pain. Tr. 209, 246. Plaintiff attributes a herniated disk to the accident (Tr. 52), and claims that she also has a balance problem as a result of this accident (Tr. 57).
Plaintiff was injured again on November 19, 1997, when she fell down the steps of her home. On that occasion, plaintiff sustained a concussion. Plaintiff has not driven an automobile since that time.
B. Medical Evidence
The administrative record contains voluminous evidence relating to both physical and mental impairments alleged by plaintiff. However, only the evidence regarding plaintiff's mental impairment is relevant to this action for judicial review. Consequently, only that evidence is discussed.
Plaintiff has a long history of mental depression commencing in 1995, even before her automobile accident. Altogether, she has been treated or evaluated by five psychiatrists in three states. Moreover, three of plaintiff's physicians treating her physical injuries noted signs of apparent mental impairment, or prescribed anti-depressant medication.
In her application, plaintiff listed the following treating psychiatrists:
Jose Gutierrez — Houston, Texas — 1996
William Smith — Ocean Springs, Mississippi — 1997 — 1998
Shatha Olofsson — Aransas Pass, Texas — 1998 — 1999
Doctor, name unknown, — Tennessee — 1995.
As reported subsequently in this section, plaintiff was evaluated by a fifth psychiatrist, Frank W. Zimmerman, M.D., in March, 1999.
Dr. Paxton J. Longwell, M.D., of Corpus Christi Neurology, noted on May 5, 1998: "The patient's mood is slightly depressed. Her affect is somewhat flattened." Tr. 204. Similarly, Dr. John P. Masciale, M.D., of Orthopedic Associates of Corpus Christi, TX, noted on August 5, 1998, that plaintiff "has blunted facial features in a manner which hints to some type of underlying psychopathology." Tr. 166. Dr. Randall Bingham, M.D., prescribed Wellbutrin and referred plaintiff to a psychiatrist.
Wellbutrin is the trademark name for a preparation of bupropion hydrochloride, which is a "monocyclic compound . . . used as an antidepressant." Dorland's Illustrated Medical Dictionary, 29th Ed.
The administrative evidence does not contain psychiatric records from the unnamed psychiatrist in Tennessee, or from Dr. Jose Guitierrez, of Houston, Texas, or from Dr. William Smith, from Ocean Springs, Mississippi. Thus, the only evidence from psychiatric specialists consists of records and reports from Dr. Olofsson and Dr. Zimmerman.
Dr. Olofsson first saw plaintiff under a referral from plaintiff's attending physician, Dr. Bingham. Dr. Olofsson also reevaluated plaintiff at the request of Texas Rehabilitation Commission's Disability Determination Division. Altogether, plaintiff saw Dr. Olofsson at least five times from April, 1998, to February, 1999. Dr. Olofsson diagnosed plaintiff with "dysthymia, recurrent major depression in partial remission, [and] mood disorder due to fibromyalgia." Tr. 125. Plaintiff reported that her prescribed medications for pain and depression frequently counteracted. This was suspected also by at least one other physician, Deborah Seibel, M.D., who noted that plaintiff's pain medication may interfere with prescriptions from her psychiatrist. Tr. 154.
Dysthymia is defined as a "dysthymic disorder;" dysthymic is defined as "depressed." Dorland's Illustrated Medical Dictionary, 29th ed.
Fibromyalgia is defined as "pain and stiffness in the muscles and joints that is either diffuse or has multiple trigger points." Dorland's Illustrated Medical Dictionary, 29th ed.
Ultimately, Dr. Olofsson concluded that plaintiff's prognosis is guarded due to decreased ability to concentrate, poor ability to relate to others and sustain work, and poor ability to respond to change and stress in a work setting. Tr. 125. In a separate Medical Assessment of Ability to do Work-Related Activities (Mental), Dr. Olofsson opined that plaintiff's ability is poor to none in the following areas: deal with the public and work stresses; function independently; maintain attention/concentration; understand, remember, and carry out even simple job instructions. Tr. 267.
Medical Assessment of Ability to do Work-Related Activities (Mental) is Social Security Administration's Form SSA-1152.
Social Security Administration's Form SSA-1152 quantifies abilities as unlimited or very good, good, fair, and poor to none. Categories of abilities and the administration's explanatory remarks are as follows:
Unlimited or very good — ability to function in this area is more than satisfactory
Good — ability to function in this area is limited but satisfactory
Fair — ability to function in this area is seriously limited but not precluded
Poor to none — no useful ability to function in this area.
Tr. 267.
Texas Department of Health and Human Services, Disability Determinations Division, referred plaintiff to consulting (non-examining) psychiatrist Frank W. Zimmerman, M.D. On the basis of a records review, Dr. Zimmerman concurred that plaintiff's impairments consist of dysthymia, recurrent major depression in partial remission, and mood disorder due to fibromyalgia. Tr. 108. Dr. Zimmerman found deficiencies of concentration, persistence or pace ("often"), and episodes of deteriora tion or decompensation in work ("once or twice — end of job 2/98"). Tr. 114. He concluded, however, that these impairments did not meet or exceed mental impairments in the Listings, and, therefore, performed a residual functional capacity assessment. Dr. Zimmerman ultimately opined, however, that plaintiff "retains the ability to perform basic work tasks, to interact with coworkers and supervisors, and to adapt to a routine work environment." Tr. 103-06. Thus, Dr. Zimmerman's residual functional capacity assessment is that plaintiff has the physical and mental ability to perform activities generally required by competitive, remunerative work.
VII. ALJ's Decision
Following the hearing, ALJ Belli issued a written opinion wherein he concluded that plaintiff is not disabled under governing rules. Following the sequential analysis framework, ALJ Belli made the following determinations:
Step 1: "The claimant has not performed work which constitutes `substantial gainful activity' since the alleged onset date." Tr. 17, Finding 2.
Step 2: "The claimant has the following medically determinable severe impairments: herniated nucleus pulposus L4-5." Tr. 18, Finding 3.
Step 3: The claimant "does not have an impairment or combination of impairments listed in, or medically equivalent to one listed in Appendix 1, Subpart P, Regulations No. 4." Tr. 18, Finding 3.
Step 4: (a) The claimant "can occasionally lift and/or carry a maximum of 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk (with normal breaks) for 2 hours at one time and not more than 6 hours total out of an 8 hour work day; sit (with normal breaks) for 2 hours at one time and not more than 6 hours total out of an 8 hour work day; no climbing of ladders ropes (sic) or scaffolds; no balancing, working at unprotected heights or around hazardous machinery; occasionally stoop, kneel, crouch, and crawl. There are no limitations due to a mental impairment. . . . [C]laimant has the residual functional capacity to perform a wide range of light work." Tr. 18, Finding 5.
(b) "The claimant is able to perform her past relevant work." Tr. 18, Finding 6.
Because the ALJ found plaintiff capable of performing her past relevant work at Step 4 of the sequential analysis, the inquiry ended, and plaintiff was determined to be not disabled and ineligible for benefits.
Conspicuously absent from ALJ Belli's findings is any reference to plaintiff's alleged mental impairment. While ALJ Belli acknowledged that plaintiff suffers from an affective disorder characterized by dysthymia (Tr. 20), he determined that plaintiff suffers no limitations whatsoever due to that condition (Tr. 17). Consequently, his consideration of plaintiff's mental impairment ceased. Plaintiff's mental impairment was neither considered in combination with plaintiff's other physical impairments, nor did it receive any further vocational evaluation itself.
To reach this conclusion, ALJ Belli rejected Dr. Olofsson's opinion that plaintiff has poor ability to relate to others, sustain work, and respond to change or stress. ALJ Belli thought Olofsson's conclusions unwarranted because the medical evidence does not show marked memory or concentration problems. Moreover, "[t]he GAF in April 1998 was 68 and had been 60 to 65 in the past year." (Tr. 15).
"GAF" is an acronym for "Global Assessment of Functioning." GAF is a diagnostic tool that examines psychological, social, and occupational functioning to assess a patient's mental health. Diagnostic and Statistical Manual, Fourth Ed., 1994, available at http://www.psych.org/apire/fehb2000/help/GAF_scale.cfm. GAF assessments do not take into account impairment in functioning due to physical or environmental limitations. Id.
Similarly, ALJ Belli discounted Dr. Zimmerman's findings by stating that plaintiff's daily living activities and ability to maintain social functioning reflect only slight restrictions (Tr. 20); that plaintiff seldom suffers deficiencies of concentration, persistence or pace which affect ability to complete tasks in a timely manner; and plaintiff never had episodes of decompensation in work or work-like setting (Tr. 21).
Ultimately, he found no "functional limitations manifested at the listing level" (Tr. 21) and determined that plaintiff suffers no limitations due to mental impairment (Tr. 17). Procedurally, ALJ Belli utilized the corollary sequential evaluation procedure applicable to claims based on mental disability. He also completed and appended to his decision the required Psychiatric Review Technique Form (PRTF). Finally, he expressly stated that in determining severity of plaintiff's mental condition, he followed Stone v. Heckler.
VIII. Points of Error
Plaintiff's brief designates nothing as a "point of error." It does contain a "Statement of the Issue" which reads in its entirety as follows:
"The issue presented is whether the Commissioner's finding that the plaintiff does not have a severe mental impairment is supported by substantial evidence and in accordance with the proper legal standard."
Pl.'s Br. at "Statement of the Issue." This general statement presents nothing meaningful to review, and simply regurgitates the general standard of judicial review. Thus, it initially appears to be an improper invitation for the court to become plaintiff's advocate by scouring the record in plaintiff's behalf and identifying possible errors.
Closer reading of plaintiff's brief, however, reveals that plaintiff makes three arguments fairly characterized as points of error. For analytical convenience, these alleged errors are rephrased and categorized as follows:
A. The ALJ committed an error of law in that he incorrectly considered plaintiff's daily activities to evaluate the effect of plaintiff's mental impairment on her ability to work (Pl.'s Br. at "What is the Proper Legal Standard to Determine Severity?").
B. The Commissioner's decision that plaintiff has no limitations resulting from mental impairment is not supported by substantial evidence because:
undisputed medical evidence proves that "plaintiff's mental impairment imposes more than a slight limitation on her ability to function" (Pl.'s Br. at "What Evidence Supports the ALJ's Conclusion?"); and
the ALJ failed to re-contact plaintiff's treating psychiatrist or to obtain a consultative examination to assess plaintiff's mental impairment (Pl.'s Br. at "What Action Should the ALJ Have Taken?").
Because these points are so shrouded in plaintiff's brief almost to obscurity, the Commissioner's response is global, and not focused exclusively on these points. However, the Commissioner does respond directly to each argument. As for the alleged error of law, the Commissioner argues that the ALJ properly considered plaintiff's activities of daily living in assessing her residual functional capacity. The Commissioner further argues that because the ALJ did not find plaintiff's mental condition to be a severe impairment, he was not required to include mental limitations in his assessment of her residual functional capacity. Regarding the substantial evidence points, the Commissioner first argues that plaintiff failed to demonstrate existence of a functional limitation attributable to mental impairment. The Commissioner argues that ALJ Belli evaluated plaintiff's mental impairment, as demonstrated by his notation of plaintiff's history of depression, and found lack of record evidence to prove any disability caused by mental impairment. Finally, the Commissioner argues that (1) the ALJ was not required to re-contact plaintiff's treating psychiatrist because the evidence of record was not inadequate or insufficient to make a disability determination, and (2) plaintiff has not demonstrated that prejudice resulted from any failure to fully develop the record, and has not proffered any evidence that, if considered, would have altered the result.
IX. Discussion and Analysis
The critical administrative finding in this case is the determination that plaintiff's evidence was insufficient to demonstrate a severe mental impairment. ALJ Belli found that the alleged impairment, dysthymia, is not severe, but rather only a slight abnormality having minimal effect on plaintiff's ability to work. Indeed, ALJ Belli's decision indicates that he found that the alleged mental impairment had no effect whatsoever on plaintiff's ability to work.
If that finding is supported by substantial evidence, ALJ Belli correctly omitted further consideration of the alleged mental impairment. But if that finding is not supported by substantial evidence, it was error for ALJ Belli to pretermit further evaluation of vocational factors, singly or in combination with plaintiff's physical impairments. It is appropriate, therefore, to examine first plaintiff's argument that the nonseverity finding is not supported by substantial evidence.
After review, the undersigned concludes that the nonseverity finding is not supported by substantial evidence. First, it defies simple logic and contravenes the light of common experience to suggest that a person who (a) suffers from long-term, major, persistent depression, (b) exhibits to others a depressed mood, a flattened affect, and blunted facial features, and (c) requires ongoing professional psychiatric counseling and prescription medications simply to function has no impairment affecting her ability to work. Nor can one simply divine that plaintiff's abnormality has such minimal effect that it would not be expected to interfere with her ability to work. It is widely reported that depression in employees costs United States businesses billions of dollars each year in absenteeism, lost productivity, and medical bills. See Elyse Tanouye, Depression Takes Annual Toll of $70 Billion on Employers, Wall Street Journal, June 13, 2002, available at http://www.tog-usa.com/resource_files/654.pdf; Janette Bennett, SA Business Counts Cost of Mental Illness, Business Times, available at http://www.btimes.co.za/99/0110/news/news05.htm; AdvancePCS Study Shows Top Health Conditions Cost Employers $180 Billion in Lost Productive Time, at http://www.insurance-portal.com/061202advancepcs2.htm.
Second, the nonseverity finding also contradicts medical evidence in the administrative record. Plaintiff produced both treating-physician and consulting-physician evidence of a mental impairment with more than minimal effect on her ability to work. Treating physician Olofsson reported that plaintiff has poor ability to relate to others, to sustain work, and to respond to change and stress. Dr. Zimmerman similarly found deficiencies of concentration, persistence or pace ("often") and episodes of deterioration or decompensation in work ("once or twice — end of job 2/98").
ALJ Belli, while not out-and-out bound by these physicians' opinions, was obliged to consider them, and could reject them only for good cause. He cites no contrary medical evidence, and, upon examination, the reasons he articulated for disregarding these experts' opinions do not constitute good cause. He rejected Dr. Olofsson's opinion because he found no "evidence of marked memory or concentration problems" and because plaintiff's "GAF in April 1998 was 68 and had been 60 to 65 in the past." (Tr. 15). Neither finding refutes Dr. Olofsson's opinion. There is no evidence suggesting that marked memory or concentration problems are necessary prerequisites for finding poor ability to relate to others, sustain work and respond to change or stress. Moreover, a GAF rating in the 60 — 70 range generally is thought to indicate a likelihood of vocational impairment.
Claims adjudicators are obliged to consider all the evidence. 20 C.F.R. § 404.1520 (2002); Soc. Sec. Ruling 96-7p (1996). They must issue decisions based on the record as a whole, and are not free to pick and choose only the evidence supporting a particular position. Loza, 219 F.3d at 393; Switzer v. Heckler, 742 F.2d 382, 385-86 (5th Cir. 1984).
Moreover opinions of treating physician must generally be accorded controlling weight unless for good cause shown an ALJ rejects or assigns less weight to the treating physician's opinion. Good cause may exist when the physician's statements are conclusory and brief; otherwise unsupported by the evidence; when the treating physician is not credible because (s)he is "leaning over backwards to support the application for disability benefits"; or when statements are unsupported by medically acceptable clinical, laboratory, or diagnostic techniques. Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985); see also Myers v. Apfel, 238 F.3d 617, 621 (5th Cir. 2001) (citing Greenspan, 38 F.3d at 237); Newton v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000).
A GAF score of 61-70 indicates that the patient has "some difficulty in social, occupational, or school functioning . . ., but generally function[s] pretty well, [and] has some meaningful interpersonal relationships." American Psychiatric Association, Diagnostic and Statistical Manual, Fourth Ed., 1994, available at http://www.psych.org/apire/fehb2000/help/GAF_scale.cfm.
ALJ Belli never discussed Dr. Zimmerman's findings expressly, and thereby failed to show good cause for rejecting them. To compound that error, ALJ Belli found that plaintiff had never experienced an episode of deterioration or decompensation in work or work-like settings. This directly contradicts Dr. Zimmerman's report that plaintiff had experienced such episodes near the end of a job in 1998. ALJ Belli states no evidentiary basis for rejecting Dr. Zimmerman's express findings of work-related deterioration or decompensation due to depression. ALJ Belli also apparently overlooked the fact that Dr. Zimmerman conducted a full residual functional capacity assessment, an evaluation made only when plaintiff has first shown a severe impairment.
Third, the only affirmative evidence cited by ALJ Belli as supporting his finding that plaintiff's mental impairment is not severe, is plaintiff's testimony regarding her "daily activities which do not indicate that she is restricted in any way by a mental impairment." Tr. 16. Daily activities may be relevant, but Loza v. Apfel makes clear that a claims adjudicator who attempts to apply the Stone v. Heckler severity standard solely by gauging a claimant's restrictions in activities of daily living acts improperly. Loza, 219 F.2d at 392.
For all these reasons, ALJ Belli's determination that Ms. Evans's mental impairment was non-severe is not supported by evidence relevant and sufficient for a reasonable mind to accept as adequate support for the conclusion. Plaintiff's evidence of mental impairment was not so slight as to warrant a presumption of nondisability without a full evaluation of all vocational factors, including also an evaluation of whether the combined effects of all impairments, mental and physical, makes the impairment severe. This action should therefore be remanded for further consideration.
X. Other Alleged Errors
Because plaintiff is entitled to remand based on lack of substantial evidence to support the ALJ's determination of nonseverity of plaintiff's mental impairments, it is not necessary to analyze other points of error.
XI. Conclusion
The court remains ever mindful that the Commissioner has the exclusive prerogative to weigh evidence and resolve conflicts, and further acknowledges that judicial review is both highly deferential to the Commissioner and limited in scope. The court does not purport to direct a particular outcome upon remand. Therefore, upon remand, the Commissioner will be free to re-examine all issues, including severity of plaintiff's alleged mental impairment. If that impairment is determined to be severe, a full vocational evaluation of that impairment — singly and in combination with plaintiff's physical impairments — should be conducted. If that impairment is found to be not severe, the Commissioner must employ the proper standard and provide different reasons than those utilized by ALJ Belli in this case.
Recommendation
Because plaintiff's substantial evidence point of error should be sustained, the Commissioner's decision should be reversed, and this action remanded for further consideration consistent with the foregoing opinion.
Objections
Within ten (10) days after receipt of the magistrate judge's report, any party may serve and file written objection to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C) (2001).
Failure to file written objections to the proposed findings and recommendation contained in this report within 10 days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings and recommendations.