Opinion
Case No. 00-4104-RDR
November 30, 2001
MEMORANDUM AND ORDER
This is an appeal from the defendant's denial of plaintiff's applications for disability benefits and supplemental security income benefits under the Social Security Act.
Plaintiff was born on November 23, 1953. She alleges that she became unable to work on November 2, 1997. Plaintiff has hearing loss, decreased strength in her right arm following rotator cuff surgery, and depression. Plaintiff also has had problems with drinking, although she testified that she stopped drinking in April 1998. Plaintiff has a twelfth-grade education and approximately three semesters at a community college.
On February 3, 1998, plaintiff completed a form indicating the daily activities she was capable of performing. (Tr. 96-101). The form shows that plaintiff can do housecleaning chores without assistance; she can do laundry; and she can cook on a regular basis. She can help cut wood for heat, clean up the yard, plant flowers, and do other outside chores. She can shop for groceries and other items and handle her own money. If she had a driver's license, she could drive. Plaintiff has hobbies and activities; she belongs to social groups; and she visits with friends. The form also indicated that plaintiff takes medication for depression and medication to help her sleep. During her hearing before the Administrative Law Judge (ALJ), plaintiff stated that on a normal average day, "I get my dishes done, sweep, vacuum the floor rather. Feed and water my dogs, take them for walks around the block and then I come in and sit down and watch T.V. I crochet, knit . . . until my hands or arms start hurting." (Tr. 224). Plaintiff was not represented by counsel before the ALJ.
On February 3, 1998, plaintiff also completed a fatigue questionnaire. Her answers indicated that she feels fatigued when she becomes depressed. She stated that she tries to stay busy to relieve her fatigue, but this is not very effective. (Tr. 102). Plaintiff also completed a pain questionnaire. This form shows that plaintiff has some right shoulder pain when she overworks. This pain can be relieved with medication. (Tr. 103).
Plaintiff has been diagnosed with a moderately severe bilateral hearing loss. (Tr. 127). An evaluation dated February 10, 1998 shows that she "has sufficient hearing and speech to communicate effectively with a hearing aid in favorable listening situations." (Tr. 127). There is no evidence that plaintiff's hearing has deteriorated in recent years.
A physical examination on September 19, 1997 revealed that plaintiff had decreased grip strength on the right, but concluded that plaintiff had no vocational restrictions and only limitations caused by hearing difficulty. (Tr. 130).
On January 15, 1998, plaintiff was given a mental status exam at the Southeast Kansas Mental Health Center. The exam showed that plaintiff had: moderately poor hygiene; unimpaired motor activity; unimpaired flow of thought; some moderate to severe suicidal thoughts which were used to get attention; mild feelings of unreality; average intelligence; unimpaired sense of time and place; and unimpaired concentration. (Tr. 153). Plaintiff was moderately expressionless; she had a flat affect. (Tr. 153). She was evaluated as having poor insight and judgment as to herself and her illness. She was also considered unmotivated for treatment. (Tr. 153). Plaintiff was diagnosed as having a dysthymic disorder, alcohol abuse and borderline personality disorder. (Tr. 154).
A consultative physical examination by Dr. Robert Thomen on March 31, 1998 determined that plaintiff had reduced grip strength in her right hand. Plaintiff had normal range of abduction, flexion, and rotation in the right shoulder. The doctor observed that plaintiff could write her name without difficulty. She could button buttons and turn a doorknob. (Tr. 167-68). An x-ray report on plaintiff's right shoulder was normal. (Tr. 169).
Plaintiff had a mental status consultative examination by Dr. Patrick Dattore also on March 31, 1998. He made the following observations and conclusions:
[Plaintiff] arrived approximately 40 minutes late for the scheduled appointment. She was of average height and weight. Clothing was somewhat careless and dirty. Her teeth and hands were dirty, and her fingernails were of varying lengths. Her hair appeared matted and dirty. Her clothing wreaked of cigarette smoke. She was pleasant and cooperative in her interactions with the examiner. Posture and gait were normal, and motor activity unremarkable. She was oriented to person, place, time, situation, and object. Affect was appropriate and mood euthymic. Judging from vocabulary and quality of reasoning abilities, her intellectual level appeared to be somewhere between borderline mentally retarded and below average. She claimed to be a high school graduate. Speech flow was normal, although she tended to be loquacious. Thought content was appropriate to mood and circumstances. No disorders of perception or formal thought processes were noted. Fund of information was limited, and consistent with an at least below-average level of intelligence.
Attention span was limited, as evidenced for example by her ability to recall only 4 digits forwards. She could, however, recall 4 of 4 unrelated words immediately after presentation. Concentration was also limited. While she could perform serial 3 additions and serial 7 subtractions, she was extremely slow and needed to count on her fingers. In addition, she could only recall 3 digits backwards. Throughout the interview, [plaintiff] demonstrated difficulty at times understanding and following even simple instruction. For example, when asked to "place your right hand on your left knee, tap your left knee three times, and then touch your left ear with your right hand," she ended this series of commands by touching her left ear with her left hand. In addition, when asked to raise one arm if today was Tuesday (which it was), or otherwise raise both arms, she raised both arms.
Immediate recall was intact but limited, as noted above. Delayed recall was poor, as she could only remember 2 of 4 unrelated words after a five-minute delay. Short-term retention of information was intact, as were recent and remote memory. She could perform simple calculations, but needed to count on her fingers. Otherwise, she would become confused and lost. Her interpretations of proverbs were concrete and demonstrated an inability to comprehend the meaning of various sayings. Practical reasoning abilities were very basic. Hazard recognition was naive and impractical, as well as somewhat impulsive, as manifested for example in her response that if she were the first person in a movie theater to see smoke and fire, she would "try to smother it, or run up and down the aisle hollering fire."
SUMMARY:
Results of this evaluation suggested the diagnoses of possible Borderline Intellectual Functioning and Alcohol Abuse. Date(sic) obtained during this evaluation did not support the diagnosis of an affective disorder. However, the symptoms of such a disorder might currently be managed effectively via pharmacotherapy. She appears motivated to be as self-sufficient as possible, but this motivation is interfered with by several factors. These include very limited innate intelligence, probable alcohol abuse, an immature and self-indulgent dimension to her emotional development, and very limited social-interpersonal skills/comprehension. She probably does an adequate job managing her own funds, as long as the task of budgeting does not become more than relatively basic and uncomplicated.
(Tr. 171-72).
Dr. Colby Wang, a psychiatrist who has treated plaintiff, completed a residual functional capacity assessment form. (See Tr. 196.) He concluded that plaintiff's ability to remember locations and work-like procedures was markedly limited. He also found moderate limitations in plaintiff's ability to interact with the general public and to ask questions or request assistance, as well as in plaintiff's ability to set realistic goals or make plans independently. He found no significant limitations in plaintiff's ability: to accept instructions or respond appropriately to criticism; to get along with co-workers; to respond to changes in the work setting; to respond appropriately to work hazards; or to travel to unfamiliar places. He further concluded there was no evidence of limitation in plaintiff's ability: to understand, remember, and carry out short and simple instructions; to perform work on schedule and maintain regular attendance; to sustain a routine; to work in coordination with others; to make simple work-related decisions; to complete a normal workweek without interruptions from psychologically-based symptoms; and to maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness.
The ALJ concluded in this case that plaintiff retained the functional capacity to lift and carry up to 20 pounds and up to 10 pounds frequently; that she could stand and walk about 6 hours in an eight-hour day; and that she could sit for 6 hours in an 8-hour workday. In other words, he concluded that plaintiff had the physical capacity to do light and sedentary work. He further concluded that plaintiff's ability to work was diminished by non-exertional and psychologically-based limitations. He found that plaintiff was restricted from more than occasional reaching and handling and from more than frequent fingering. He also determined that plaintiff was moderately limited in her ability: to understand, remember and carry out detailed instructions; to maintain attention and concentration for an extended period; to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; to complete a normal workday and workweek without interruptions from psychologically based symptoms; to perform at a consistent pace; and to get along with coworkers without distracting them. (Tr. 24).
Plaintiff has a prior work history as an assembler, sander or laborer. A vocational expert testified that with her limitations plaintiff could not return to her prior work, but that she was able to perform light and sedentary occupations which existed in substantial numbers in the economy, such as the job of cashier or office helper.
We review the record to determine if it contains substantial evidence to support the Commissioner's decision and if the correct legal standards were applied. See Kepler v. Chater, 68 F.3d 387, 388 (10th Cir. 1995). "Substantial evidence is adequate relevant evidence that a reasonable mind might accept to support a conclusion." Id. at 388-89.
Plaintiff first attacks the denial of benefits by contending that the ALJ overstated plaintiff's intellectual capability in determining plaintiff's residual functional capacity. While plaintiff has a high school education and some college, plaintiff's counsel contends that her mental aptitude apparently has declined since her school years to the extent that Dr. Dattore considered her borderline mentally retarded. Plaintiff testified before the ALJ that she graduated from high school and had a year and a half of college. (Tr. 221). She flatly told the ALJ that she wasn't smart but she wasn't ignorant, and that she was offended by a statement in her file to the contrary. (Tr. 223). Dr. Dattore's conclusion regarding plaintiff's intellectual capacity was based upon one consultative examination during which no intelligence test was administered. Plaintiff's other examinations do not indicate that plaintiff has below average or borderline intelligence. For example, a mental status exam completed in January 1998 by Terri Johnson, a licensed master social worker, listed plaintiff's intelligence as average. (Tr. 153-54). Dr. Wang, plaintiff's treating psychiatrist, also found no evidence of limitation or no significant limitation in several work-related aptitude criteria. (Tr. 196). Furthermore, the ALJ asked the vocational expert to assume that plaintiff was moderately limited in her ability to understand and remember detailed instructions; moderately limited in her ability to carry out detailed instructions; and moderately limited in her ability to maintain attention and concentration for extended periods. (Tr. 229-30). We believe the record supports the ALJ's evaluation of plaintiff's intellectual abilities. We note additionally that plaintiff has completed many of the forms which are included in the record, and her writing belies any claim of borderline mental retardation.
We further find that the record was sufficiently developed in this area and that the ALJ did not default upon his responsibility to fully develop the record by failing to order more intelligence testing.
The ALJ does not have to exhaust every possible line of inquiry in an attempt to pursue every potential line of questioning. [citation omitted]. The standard is one of reasonable good judgment. The duty to develop the record is limited to "fully and fairly develop[ing] the record as to material issues."
Hawkins v. Chater, 113 F.3d 1162, 1168 (10th Cir. 1997) (quoting, Baca v. Department of Health Human Services, 5 F.3d 476, 479-80 (10th Cir. 1993)). Plaintiff's educational background, her work history and activities, her participation in this case, and the reports of other mental health professionals establish to a reasonable degree of certainty that plaintiff has sufficient intelligence to sustain employment.
Next, plaintiff contends that the ALJ merely gave lip service to plaintiff's right shoulder pain and limitations. Plaintiff asserts that the ALJ failed to give true weight to plaintiff's complaints and to fully and fairly develop the record regarding those limitations. We reject this argument. Rather than giving lip service to plaintiff's history of rotator cuff surgery and right arm limitations, it appears that the ALJ gave plaintiff the benefit of the doubt. This doubt was created by: the numerous actions plaintiff is able to perform around and outside of the house; the absence of pain medication; plaintiff's statement that her pain can be effectively managed with medication; examinations showing loss of grip strength but few other limitations; and plaintiff's testimony that she was not working only because the medicine she took for depression made her drowsy. In spite of this, the ALJ assumed that the right arm difficulties amounted to a severe impairment and directed the vocational expert to assume limitations on plaintiff's ability to lift, handle and finger objects. We see no error by the ALJ in this area of his opinion.
Plaintiff also argues that the ALJ should have requested records from other doctors regarding plaintiff's shoulder treatment. We also reject this assertion. Plaintiff's shoulder surgery was in 1994. There is nothing to suggest that additional investigation into past records would provide evidence of limitation beyond that assumed by the ALJ in this case.
Next, plaintiff contends that the ALJ improperly made credibility determinations. The court disagrees. Regarding pain, plaintiff stated that drowsiness from medication, not pain, was the primary obstacle keeping her from working. (Tr. 223). Additionally, plaintiff stated that the medication she takes is not for pain. (Tr. 100). She also stated that she receives relief from pain symptoms when she does take pain medication. (Tr. 103). Hence, accepting the credibility of plaintiff's testimony, there is substantial evidence to support a conclusion that pain, either alone or in combination with other factors, does not preclude plaintiff from working. See Dixon v. Heckler, 811 F.2d 506, 508 (10th Cir. 1987) (finding a condition that can be controlled with medication cannot serve as the basis for a finding of a disability).
Plaintiff also asserts there is not sufficient evidence to conclude that plaintiff can adequately manage her personal hygiene. The conclusion of plaintiff's treating psychiatrist rebuts this assertion. He found that there was no evidence of limitation in plaintiff's ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness. (Tr. 196).
Plaintiff next contends that the ALJ misevaluated plaintiff's claims of drowsiness. During her hearing before the ALJ, plaintiff stated that she was taking 40 mg of Paxil and 100 mg of Trazadone. (Tr. 215).
Q. How does that prevent you from working?
A. Because with the Paxil and Trazadone in my system, if I'm working, it could make, at times it could make me drowsy at times. If I were to fall asleep at . . . work [it] would be a safety hazard.
Q. Okay, so the medication tends to make you drowsy?
A. Yes.
Q. And do you spend any time sleeping during the day?
A. Sometimes, yes.
Q. How many days a month do you have to rest during the day?
A. Well pretty much almost every day I rest.
Q. And well you said sometimes.
A. Well, yeah. Sometimes I do.
Q. Well . . . there's a difference between sometimes and every day.
A. Oh, I see.
Q. Could you be more precise.
A. If I'm . . . like going to town or something, I don't sleep but if I'm sitting there at the house, yeah. I go to sleep.
Q. But if you go to town, you don't go to sleep?
A. No. I'm too anxious to see what's . . . going on.
Q. Okay, so when you stay home, you take a nap.
A. Yes.
Q. And how long do you take a nap for?
A. Oh, it depends. Between 30 minutes to an hour, maybe two hours.
Q. So it varies.
A. Yes.
(Tr. 215-16). It should be noted that plaintiff's last work was as a laborer, painting houses, shingling houses, and building additions. (Tr. 216). These are activities where drowsiness would cause more of a safety hazard than work as a cashier or office helper, jobs which the ALJ concluded plaintiff could still perform. The ALJ noted that the prescribing doctor, Dr. Wang, did not record any complaints, problems or possible risks from fatigue or drowsiness after taking Paxil and Trazadone. Although we acknowledge plaintiff's counsel's reference to The Pill Book and its account of possible side effects from these drugs, this citation does not inform the court regarding plaintiff's experience with the medication. Plaintiff's description of her drowsiness did not convince the ALJ that this was a disabling problem. We believe his conclusion is supported by substantial evidence, given plaintiff's daily activities, the context of her work history, and her description of the problem. Therefore, we reject plaintiff's contention that the ALJ improperly dismissed the credibility of plaintiff's complaints of drowsiness.
Plaintiff next argues that the ALJ did not properly consider plaintiff's depression, intellectual limitations, hearing loss and shoulder condition in determining plaintiff's residual functional capacity. We disagree. As already discussed, the ALJ factored in plaintiff's right arm weakness and intellectual capacity in the assessment of plaintiff's residual functional capacity. The record indicated that plaintiff's depression was controlled by medication and that plaintiff could listen and communicate effectively in favorable listening environments with hearing aids. "If an impairment can reasonably be treated or controlled it cannot constitute a disability." Limon v. Shalala, 884 F. Supp. 1481, 1487 (D.Colo. 1995) (citing Johnson v. Bowen, 864 F.2d 340, 348 (5th Cir. 1988)); see also Dixon, 811 F.2d at 508. Accordingly, the ALJ did not ignore significant impairments in making his decision in this case.
Plaintiff further contends that the ALJ did not properly complete Part B of the Psychiatric Review Technique Form (PRTF) assessment. Specifically, plaintiff contends that the ALJ found "moderate" limitations in plaintiff's ability to, for instance, understand and carry out detailed instructions, but did not mark plaintiff's limitations as "moderate" on the PRTF. We find no error here. The conclusions the ALJ recorded upon the PRTF are supported by substantial evidence in the record. The findings are discussed adequately in the ALJ's decision. There is no substantial evidence of "moderate" limitations in plaintiff's activities of daily living or in plaintiff's maintenance of social functioning. Therefore, it was appropriate not to mark plaintiff's limitations in those areas as "moderate" on the form. The ALJ marked plaintiff's deficiencies in concentration, persistence or pace as "seldom" or "often," as opposed to "frequent." There was no option labeled "moderate" on the form. We believe the ALJ's conclusions on the form are supported by the evidence in this case. Therefore, we reject plaintiff's contentions regarding the PRTF.
Plaintiff further contends that the ALJ ignored selected findings by Dr. Wang on the mental residual functional capacity form. Specifically, plaintiff contends that the ALJ ignored the finding of Dr. Wang that plaintiff was markedly limited in her ability to remember locations and work-like procedures. The ALJ is not required to discuss every finding recorded on every form in the record. It is clear from his decision that the ALJ considered the form and the other records of Dr. Wang. We believe his decision and evaluation of plaintiff's mental functional capacity is supported by substantial evidence in the record, including the findings of Dr. Wang that plaintiff could understand and carry out short and simple instructions as well as make simple work-related decisions. (Tr. 196).
Finally, plaintiff contends that the hypothetical question presented by the ALJ to the vocational expert failed to include significant physical and mental limitations and, therefore, the expert's opinion may not be relied upon. We disagree. The ALJ asked the vocational expert to consider the physical and mental limitations substantiated in the record. Plaintiff's hearing deficiencies were not considered. But, the evidence in the record does not establish that plaintiff's hearing loss should be a substantial impairment to performing employment. Plaintiff and the ALJ communicated effectively during the administrative hearing even though plaintiff was not wearing a hearing aid. (Tr. 219). Plaintiff has also worked in the past despite her hearing impairment. Accordingly, we find no grounds to reverse the denial of benefits on the basis of the alleged faulty hypothetical.
In conclusion, the decision to deny social security benefits in this case shall be affirmed.
IT IS SO ORDERED.