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holding that DOT's reasoning level two requirement did not conflict with the ALJ's limitation to "simple, routine, repetitive, concrete, tangible tasks"
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Civil No. 00-788 ADM/RLE
March 29, 2001
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge pursuant to Plaintiff Barbara J. Flaherty's Objections [Doc. No. 17] to the Report and Recommendation ("RR") of United States Magistrate Judge Raymond L. Erickson [Doc. No. 16]. The RR, dated February 16, 2001, recommends that Plaintiff's Motion for Summary Judgment [Doc. No. 6] be denied and that Defendant William A. Halter's Motion for Summary Judgment [Doc. No. 13] be granted. Plaintiff objects to the RR's conclusion that the Administrative Law Judge's ("ALJ") findings are supported by the record and the applicable law. For the reasons set forth below, the RR is adopted in its entirety.
At the time this suit was initiated, Kenneth S. Apfel was the Social Security Commissioner.
II. BACKGROUND
The factual background for this matter is set forth extensively in the RR and is incorporated by reference for purposes of the present objections.
III. DISCUSSION
Plaintiff Barbara J. Flaherty ("Flaherty") objects to the RR on two specific grounds. First, she objects to Judge Erickson's finding that substantial evidence existed for the ALJ to accord greater weight to the opinions of Dr. Adkins, Dr. Karayusuf, and Ms. Konke than to the opinion of Todd Mulliken, Flaherty's treating therapist. Objections at 2. Second, Flaherty objects to Judge Erickson's conclusion that substantial evidence existed for the ALJ to discredit the credibility of Flaherty's testimony concerning her disability. Id. at 3-4.
A. Standard of Review for RR
A district court must make an independent, de novo evaluation of those portions of an RR to which objection is made and may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Minn. LR 72.1(c)(2).
B. Standard of Review for Commissioner's Findings
The Commissioner's decision to deny social security benefits must be affirmed if it conforms to the law and is supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g); see also Qualls v. Apfel, 158 F.3d 425, 427 (8th Cir. 1998). On review, a court must take into consideration the weight of the evidence and determine whether or not substantial evidence in the record as a whole supports the findings upon which a plaintiff's claims were granted or denied. See Loving v. Sec'y of Health and Human Servs., 16 F.3d 967, 969 (8th Cir. 1994). "Substantial evidence" is a standard deferential to the agency and the ALJ. See Ostronski v. Chater, 94 F.3d 413, 416 (8th Cir. 1996). "Substantial evidence is less than a preponderance, but enough so that a reasonable mind might find it adequate to support the conclusion." Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). The ALJ's decision must be upheld if there is substantial evidence supporting it, even if there is substantial evidence of the opposite decision as well. See Terrell v. Apfel, 147 F.3d 659, 661 (8th Cir. 1998). Thus, neither the evidence nor the factual record is reviewed de novo. Flynn v. Chater, 107 F.3d 617, 620 (8th Cir. 1997).
C. Treating Source
Flaherty argues that Judge Erickson erred in concluding that there was substantial evidence to accord greater weight to the opinion of sources other than her therapist Todd Mulliken ("Mulliken"). In general, opinions from treating sources are to be afforded greater weight than non-treating sources. 20 C.F.R. § 404.1527(d). If the treating source's opinion on the "nature and severity" of the impairment is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the case, it will be given "controlling weight." Id. § 404.1527(d)(2). The opinion of a treating physician must be afforded substantial weight, but only where the opinion comes from an "acceptable medical source." 20 C.F.R. § 404.1527; see also, Burress v. Apfel, 141 F.3d 875, 880 (8th Cir. 1998). Acceptable medical sources are listed in 20 C.F.R. § 404.1513(a) and include licenced physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language pathologists.
The RR concluded that Mulliken was a therapist or counselor who is not a recognized "acceptable medical source" as established by 20 C.F.R. § 404.1513(a). RR at 37. Flaherty did not point to any evidence indicating otherwise in her RR objections. As a counselor and not a licensed or certified physician or psychologist, Mulliken is not an "acceptable medical source" whose testimony must be afforded substantial weight by the ALJ. See Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000); Hartranft v. Apfel, 181 F.3d 358, 361-62 (3d Cir. 1999); Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 530 (6th Cir. 1997); Diaz v. Shalala, 59 F.3d 307, 313 (2d Cir. 1995); Bird v. Apfel, 43 F. Supp.2d 1286, 1291 (D.Utah 1999) (social workers cannot be "treating source" worth deference because they are not included in the list of "acceptable medical sources"); cf. Cronkhite v. Sullivan, 935 F.2d 133, 134 (8th Cir. 1991) (ALJ properly gave little weight to treating chiropractor because chiropractor was not "acceptable source"). Because Mulliken was not a "treating source", the ALJ did not err by according his opinions less weight than other sources.
Even if Mulliken qualifies as a "treating source" under 20 C.F.R. § 404.1527, the ALJ's conclusions that other opinions should be afforded greater weight are substantiated by the record. Treating sources opinions are not "conclusive in determining disability status, and the opinion must be supported by medically acceptable clinical or diagnostic data." Rodgers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997) (quoting Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1996); accord 20 C.F.R. § 404.1527(d)(2). Federal regulations allow an ALJ to decline giving a treating source controlling weight where its conclusions conflict with other "substantial evidence" in the record, 20 C.F.R. § 404.1527(d)(2), or where other opinions are "supported by better or more thorough medical evidence." Rodgers, 118 F.3d at 602.
The ALJ did not commit reversible error in coming to conclusions contrary to Mulliken's assertions. Several of Mulliken's opinions are inconsistent with assessments by Dr. Adkins and Dr. Karayusuf. Compare Tr. at 68, 70, 73, 181, 226 with Tr. at 379; see RR at 38-40. Furthermore, the Mulliken opinions relied upon by Flaherty are internally inconsistent with Mulliken's clinical observations. See, e.g. Tr. at 304. Based on these findings of conflicting testimony, the ALJ had "substantial evidence" to reject Mulliken's opinions as controlling, even if Mulliken is deemed to be a "treating source." The ALJ's conclusions regarding the medical evidence are substantiated by the law and supported by the entire record.
D. Flaherty's Credibility
Flaherty also objects to Judge Erickson's finding that the ALJ's conclusions concerning her lack of credibility were supported by substantial evidence. Initially, credibility determinations are the province of the ALJ. Stephens v. Shalala, 46 F.3d 37, 39 (8th Cir. 1995). However, the ALJ may discredit subjective complaints of disability only if the assertions are inconsistent with the record as a whole. See Taylor v. Chater, 118 F.3d 1274, 1277 (8th Cir. 1997). In Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir. 1984), the Eighth Circuit set out five factors that the ALJ must consider when reviewing whether a claimant's testimony is credible: "(1) the claimant's daily activities, (2) the duration, frequency and intensity of the pain, (3) dosage, effectiveness, and side effects of medication, (4) precipitating and aggravating factors, and (5) functional restrictions." Shelton v. Chater, 87 F.3d 992, 995 (8th Cir. 1996). The ALJ must expressly delineate the relied upon inconsistencies when discounting a claimant's subjective complaints. Id. If this determination is supported by substantial evidence, it is not to be reversed. Id. at 996.
The ALJ's conclusions regarding the credibility of Flaherty's assertions about her ability to work are sustained by substantial evidence. First, the ALJ determined that Flaherty's daily activities were inconsistent with her alleged limitations. Tr. at 20-21. Flaherty exercised, bathed, shopped, and did laundry on a regular basis. Tr. at 19-20. She also took a number of major trips during this claimed disability, a fact regarded as unusual for someone suffering from severe depression. Id. at 72. Moreover, Flaherty has engaged in two romantic relationships, felt to be also uncommon for someone with her claimed disability. Id. at 73.
Second, the ALJ noted that Flaherty has refused to take antidepressant medication to assist her recovery. Id. at 21; See, e.g., Id. at 231. A claimant's refusal to take medication that may mitigate his or her disability is inconsistent with a claim of a disability. See Baumgarten v. Chater, 75 F.3d 366, 368 (8th Cir. 1996). She alleges that her refusal is reasonable considering her fears that such medication is a sign of weakness and that a relative suffered side effects from drugs. Tr. at 432, 435. However, Flaherty herself has admitted that medication has allayed her condition in the past. Id. at 262. Her refusal to accept medication in spite of her assertion that she is totally disabled further undermines her credibility. Finally, the ALJ's determination that Flaherty's statement that certain jobs would be "too demeaning" for her reflects on the credibility of her determination that she is completely disabled from doing any work. Id. at 57. From these facts it is clear that the ALJ's determination that Flaherty's testimony was "not entirely credible" is supported by substantial evidence.
IV. CONCLUSION
Based upon the foregoing, and all of the files, records and proceedings herein, IT IS HEREBY ORDERED THAT:
1. The February 16, 2001 Report and Recommendation of Magistrate Judge Raymond L. Erickson is ADOPTED IN ITS ENTIRETY;
2. The Plaintiff's Motion for Summary Judgment [Doc. No. 6] is DENIED; and,
3. The Defendant's Motion for Summary Judgment [Doc. No. 13] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.