Opinion
Civil Action 00-0763-RV-M
April 23, 2001
REPORT AND RECOMMENDATION
In this action under 42 U.S.C. § 1383 (c)(3), Plaintiff seeks judicial review of an adverse social security ruling which denied a claim for Supplemental Security Income (SSI). The action was referred for report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B). Oral argument was heard on April 23, 2001. Upon consideration of the administrative record, the memoranda of the parties, and oral argument, it is recommended that the decision of the Commissioner be affirmed, that this action be dismissed, and that judgment be entered in favor of Defendant Larry G. Massanari and against Plaintiff Carolyn Fuller.
This Court is not free to reweigh the evidence or substitute its judgment for that of the Secretary of Health and Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983), which must be supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). The substantial evidence test requires "that the decision under review be supported by evidence sufficient to justify a reasoning mind in accepting it; it is more than a scintilla, but less than a preponderance." Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting Jones v. Schweiker, 551 F. Supp. 205 (D. Md. 1982).
Plaintiff was born August 10, 1960. At the time of the most recent administrative hearing, Fuller was thirty-seven years old, had completed a ninth-grade education (Tr. 102), and had no previous work experience (Tr. 101). In claiming benefits, Plaintiff alleges disability due to severe mental illness, schizophrenic bipolar disorder, arthritis, back pain, and being blind in her right eye (Tr. 102, 107, 126).
The Plaintiff filed an application for SSI on January 15, 1993 (Tr. 157-70). Benefits were denied following a hearing by an Administrative Law Judge (ALJ) who determined that there were a significant number of jobs in the national economy which Fuller could perform (Tr. 12-27). Plaintiff requested review of the hearing decision (Tr. 10-11) by the Appeals Council, but it was denied (Tr. 7-8).
Plaintiff claims that the opinion of the ALJ is not supported by substantial evidence. Specifically, Fuller alleges that the ALJ improperly relied solely on the testimony of a non-examining psychologist in reaching his decision that she was not disabled (Doc. 12). The Court notes that the Eleventh Circuit Court of Appeals has held that the opinion of a non-examining physician "is entitled to little weight and taken alone does not constitute substantial evidence to support an administrative decision." Swindle v. Sullivan, 914 F.2d 222, 226 n. 3 (11th Cir. 1990) ( citing Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir. 1985)).
The Court will first examine a component of this claim, which is that the ALJ improperly rejected the opinions of examining doctors who were more qualified to render an opinion about her impairment (Doc. 12, p. 11). Plaintiff has pointed to the reports of two psychiatrists to support her argument.
Dr. Charles P. Alexander, psychiatrist, performed a consultative examination of Fuller on October 7, 1997 (Tr. 421-27). Alexander found Plaintiff to be "oriented in all four spheres. Her general fund of information was appropriate. She did not lose her concentration and was not easily distracted. She followed directions and answered questions consistently. She displayed no problems with abstract concepts" (Tr. 422). The psychiatrist went on to note that Fuller had no obvious memory deficits, had adequate judgment, appropriate mood, and normal affect. Id. Although she had limited insight into her condition, "[s]he exhibited no loosening of associations, tangential, or circumstantial thinking" and had no current delusional ideations. Id. Alexander noted that Plaintiff was of low average intelligence and seemed to be compliant with her psychiatric treatment and medications which controlled her symptoms fairly well. Id. The psychiatrist then completed a residual functional capacity report in which he indicated that Fuller was moderately restricted in her activities of daily living, in maintaining social functioning, and in performing simple tasks; Alexander also found that Plaintiff suffered moderate restrictions in other work-related areas (Tr. 423-24).
Dr. Robert G. Cummings, psychiatrist, completed a similar report on May 23, 1995, which essentially reached the same conclusions ( see Tr. 372-75).
The Court notes that although Plaintiff has characterized Dr. Cummings as a treating physician ( see Doc. 12, p. 12) and that the source of the RFC would suggest that he was a treating physician, Fuller has failed to point to any treatment records from Dr. Cummings.
The ALJ specifically gave little weight to the opinions of either of the two psychiatrists, finding that they were unsupported by the objective medical evidence and "contrary to the medical evidence as a whole" (Tr. 21). In reaching this conclusion, the ALJ noted that Fuller "takes care of a disabled husband, who is a Social Security recipient, and two children at home. She cooks, does housework, does the family shopping, and she handles the finances and food stamps for the family without any problems. She has a drivers licence and does drive" ( id; cf. Tr. 106, 109-12). The ALJ further noted that Plaintiff was getting treatment only once a month ( id; cf. Tr. 104). The Court finds that the ALJ has fairly summarized Plaintiffs own testimony in making his determination.
The Court also finds that Alexander's conclusions are inconsistent with his own observations and that Cummings provided no supporting medical evidence at all. The Court finds substantial support for the ALJ's rejection of the opinions by Drs. Alexander and Cummings.
The Court has reviewed the other evidence of record and finds substantial support for the ALJ's conclusion that Fuller has not demonstrated that she can not work. Specifically, Plaintiff was last hospitalized, her sixth time, in a state hospital for a mental problem during the first couple of months of 1992 (Tr. 298-310). The evidence of record since that hospitalization, what little there is, does not demonstrate that Fuller is a disabled person. For example, the treatment notes of Dr. John C. Cranton, psychiatrist at Southwest Alabama Mental Health Center, show that Fuller was doing well and was relatively stable for over a period of a year, considering that she was non-compliant with taking her medications and in getting laboratory testing done ( see Tr. 331-36). More recently, Dr. Sidarth Wakhlu, also at Southwest Alabama Mental Health Center, indicated that Fuller was "conscious, alert, oriented x 4. Self-care is fair. Speech is appropriate. Moods are stable. Affect is appropriate. No auditory or visual hallucinations. No frank delusions. No suicidal, homicidal ideations or plan presently" (Tr. 461). These are not notes which portray a mentally disabled person.
Nevertheless, the Court notes that the ALJ called John Davis, psychologist, to testify as a medical expert at the evidentiary hearing (Tr. 116-24). Davis stated that he had reviewed Fuller's medical records and observed her at the hearing, but had not personally examined her or performed a psychological evaluation. The psychologist stated that he did not think that Fuller had a severe mental impairment but that she was limited in that she would not be able to follow complex instructions and should have minimal contact with the general public (Tr. 116, 120); he disagreed with the opinions of both Alexander and Cummings (Tr. 117-18). The ALJ stated that he gave "significant weight" to Davis's opinion (Tr. 21).
Plaintiff objects to the ALJ's use of the psychologist's opinion over those of the two psychiatrists, noting that Davis neither examined Fuller and is less specialized than Alexander and Cummings. However, as noted earlier, the opinions of Alexander and Cummings were not supported by other objective medical evidence of record. While the Court agrees, in principle, with the argument made by Plaintiff, the facts of this case do not support it. The evidence from which Fuller draws her conclusions is not objective medical evidence; the evidence from which the ALJ draws his conclusions is objective medical evidence. The ALJ did not rely exclusively on Davis's opinion. Therefore, Swindle is not applicable here. Plaintiffs claim is without merit.
The Court notes that although it generally considers a psychiatrist to be a "better informed" source of information regarding a patient's condition than a psychologist, a licensed or certified psychologist is considered to be an acceptable medical source under the social security regulations. 20 C.F.R. § 416.91 3(a)(3) (2000). The Court acknowledges, however, that often-times, the psychologist works more closely with the patient than the psychiatrist. So, it comes down to a case-by-case decision.
Upon consideration of the entire record, the Magistrate Judge finds "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401. Therefore, it is recommended that the Secretary's decision be affirmed, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), that this action be dismissed, and that judgment be entered in favor of Defendant Larry G. Massanari and against Plaintiff Carolyn Fuller.
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Objection . Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the clerk of court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636 (b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)( en banc). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA UR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636 (b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable where proceedings tape recorded) . Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.