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noting a VE's testimony that a claimant's GAF score of 50 would eliminate any possible jobs in the national economy
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Case No. 02-2347-JAR
April 26, 2004
MEMORANDUM ORDER
Plaintiff Christine E. Mook brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of Defendant Commissioner of Social Security's denial of her application for a period of disability and disability insurance benefits under Title II of the Social Security Act and supplemental security income under Title XVI. According to plaintiff, defendant failed to properly assess plaintiff's credibility, failed to accord adequate weight to the opinion of her treating physician, and failed to establish that plaintiff could perform other jobs in the national economy despite her limitations. As explained in more detail below, the Court rejects each of plaintiffs arguments and affirms defendant's decision.
I. Procedural Background
On April 17, 2000, and April 12, 2000, plaintiff filed her applications for a period of disability, disability insurance benefits, and supplemental security income, claiming disability since April 1, 1997, due to inability to focus, verbal impulsiveness, attention problems, and inability to interact appropriately with co-workers. The application was denied both initially and upon reconsideration. At plaintiff's request, an administrative law judge (ALJ) held a hearing on October 16, 2001, at which both plaintiff and her counsel were present. On February 1, 2002, the ALJ rendered a decision denying all benefits, on the basis that plaintiff was not under a "disability" as defined by the Social Security Act. After the ALJ's unfavorable decision, plaintiff requested review by the Appeals Council; her request for review was denied on May 22, 2002. Thus, the ALJ's decision is the final decision of defendant.
While plaintiff alleged in her application an onset date of April 1, 1989, she amended her alleged onset date at the hearing before the ALJ.
II. Standard of Review
Judicial review under 42 U.S.C. § 405(g) is limited to whether defendant's decision is supported by substantial evidence in the record as a whole and whether defendant applied the correct legal standards. The Tenth Circuit has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." In the course of its review, the court may not reweigh the evidence or substitute its judgment for that of defendant.
See White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001) (citing Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994)).
Id. (quoting Castellano, 26 F.3d at 1028).
Id.
III. Relevant Framework for Analyzing Claim of Disability and the ALJ's Findings
"Disability" is defined in the Social Security Act as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . . ." The Social Security Act further provides that an individual "shall be determined to be under a disability 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. . . ."
Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (quoting 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A)(1982)).
Id. (quoting 42 U.S.C. § 423(d)(2)(A), 1382c(a)(3)(B) (1982 Supp. III 1985)).
The Social Security Administration has established a five-step sequential evaluation process for determining whether a claimant is disabled, and the ALJ in this case followed the five-step process. If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary. Step one determines whether the claimant is presently engaged in substantial gainful activity. If she is, disability benefits are denied. If she is not, the decision maker must proceed to the second step. Here, the ALJ determined that plaintiff was not engaged in substantial gainful activity and, thus, properly proceeded to the second step.
See id. (citing 20 C.F.R. § 404.1520, 416.920 (1986)).
Id.
Id.
Id.
Id.
The second step of the evaluation process involves a determination of whether "the claimant has a medically severe impairment or combination of impairments." This determination is governed by certain "severity regulations," is based on medical factors alone, and consequently, does not include consideration of such vocational factors as age, education, and work experience. Pursuant to the severity regulations, the claimant must make a threshold showing that her medically determinable impairment or combination of impairments significantly limits her ability to do basic work activities. If the claimant is unable to show that her impairments would have more than a minimal effect on her ability to do basic work activities, she is not eligible for disability benefits. If, on the other hand, the claimant presents medical evidence and makes the de minimis showing of medical severity, the decision maker proceeds to step three. The ALJ in this case concluded that plaintiff satisfied the severity requirement based on the foil owing impairments: a history of substance abuse; adult attention deficit disorder; dysthymia, moderate; personality disorder; possible obsessive/compulsive disorder; and history of venereal infection. Thus, the ALJ proceeded to step three. In step three, the ALJ "determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity." If the impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to benefits. If not, the evaluation proceeds to the fourth step, where the claimant must show that the "impairment prevents [the claimant] from performing work he has performed in the past." If the claimant is able to perform her previous work, she is not disabled. With respect to the third step of the process in this case, the ALJ determined that plaintiff's impairments were not listed or medically equivalent to those listed in the relevant regulations. At the fourth step, the ALJ concluded that plaintiff was unable to perform past relevant work.
Id. (quoting Bowen v. Yuckert, 107 S.Ct. 2287, 2291 (1987)).
Id. (citing 20 C.F.R. §§ 404.1520(c), 416.920(c) (1986)).
Id. at 750-51 (citing 20 C.F.R. § 404.1521(b), 41 6.921(b) (1986)).
Id. at 751.
Id.
Id. (citing 20 C.F.R. §§ 404.1 520(d), 416.920(d) (1986); Bowen v. Yuckert, 107 S.Ct. at 2291).
Id.
Id. (citing 20 C.F.R. §§ 404.1520(e), 416.920(e) (1986); Bowen v. Yuckert, 107 S.Ct. at 2291).
Id.
Thus, the ALJ proceeded to the fifth and final step of the sequential evaluation process-determining whether the claimant has the residual functional capacity (RFC) "to perform other work in the national economy in view of [her] age, education, and work experience." At that point, the ALJ properly shifted the burden of proof to defendant to establish that plaintiff retains the capacity "to perform an alternative work activity and that this specific type of job exists in the national economy." At this step, the ALJ concluded that plaintiff was not disabled, a conclusion that rested on a finding that plaintiff, despite possessing certain non-exertional limitations, nonetheless could perform a significant number of jobs in the state and national economies, including cleaner/housekeeper, stocker, and garment inspector.
See id. (quoting Bowen v. Yuckert, 107 S.Ct. at 2291).
See id. (citations omitted); accord White, 271 F.3d at 1258 (at fifth step, burden of proof shifts to Commissioner to show that claimant retains the functional capacity to do specific jobs).
IV. Analysis of Plaintiff's Specific Arguments
In her motion, plaintiff contends that the ALJ made three errors in reaching his decision: defendant failed in finding plaintiff's testimony not credible, failed to accord adequate weight to the opinion of plaintiff's treating physician, and failed to satisfy his burden of proving that plaintiff can perform other jobs which exist in significant numbers in the national economy. The Court addresses each of these arguments in turn.
A. Assessment of Plaintiff s Credibility
Plaintiff asserts that the ALJ committed error by failing to assess properly her credibility in accordance with the Tenth Circuit's opinion in Luna v. Bowen. Under Luna, the ALJ must decide whether a claimant's subjective complaints are credible, considering such factors as a claimant's persistent attempts to find relief and her willingness to try any treatment prescribed; regular contact with a doctor; the claimant's daily activities; and the dosage, effectiveness, and side effects of medication. Moreover, the ALJ must give specific reasons why he or she rejects a claimant's subjective complaints. Ultimately, credibility determinations "are peculiarly the province of the finder of fact," and should not be upset if supported by substantial evidence.
834 F.2d 161 (10th Cir. 1987).
Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000) (citing Luna, 834 F.2d at 165-66).
White, 271 F.3d at 1261 (citing Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995)).
Id. (citing Kepler, 68 F.3d at 390-91).
A review of the ALJ's decision in this case reveals that he complied with Luna in assessing plaintiff's credibility. The ALJ's assessment was based on several specific factors including inconsistencies in plaintiff's own testimony regarding her ability to work and her daily activities, her work activity after her alleged onset date, and lapses in her medical treatment. Plaintiff has not shown how this assessment was in error.
A claimant's daily activities may be considered in determining whether she is able to engage in substantial gainful employment. While plaintiff correctly argues that ability to do household chores is not indicative of ability to work, and plaintiff received some help from her boyfriend in maintaining her household, most of her daily activities are done without help and are done more than occasionally. Plaintiffs daily activities, including being a full time student, taking care of her 11 year old (at the time of the hearing) son, doing her own cooking and laundry, doing house cleaning with some help from her boyfriend, watching television, shopping, and driving, are inconsistent with allegations of total disability. While school attendance is not conclusive evidence of ability to engage in substantial gainful activity, the ALJ may consider it along with all daily activities when evaluating plaintiff's overall credibility. The ALJ properly determined that plaintiff had only mild limitation in her daily activities due to her mental impairments.
Talbot v. Heckler, 814 F.2d 1456, 1462 (10th Cir. 1987).
Cavitt v. Schweiker, 704 F.2d 1193, 1195 (10th Cir. 1983).
Markham v. Califano, 601 F.2d 533, 534 (10th Cir. 1979) (see also Gay v. Sullivan, 986 F.2d 1336, 1339 (10th Cir. 1993).
The ALJ next compared plaintiff's work record to her allegations of disability. Plaintiff complained that she was unable to keep ajob because of her inability to relate to people, yet the jobs she sought after her alleged onset of disability all required her to deal directly with the public. The ALJ determined plaintiff's complaints were unreliable because even though she states she has problems staying on task for extended periods of time, when asked at the hearing whether she could perform such a task if it were absolutely necessary, plaintiff replied that she could and that her only problem was keeping ajob. The ALJ also noted that plaintiff received disability benefits from 1988-1997, and she currently receives AFDC monthly payments, SSI monthly benefits for her son, and vocational rehabilitation assistance for some school expenses, all of which the ALJ believed may be reducing her incentive to work. The ALJ found important the fact that plaintiff worked after her alleged onset date, stating this was evidence of her ability to engage in work despite her alleged impairments, even if the work did not raise to the level of substantial gainful employment. Plaintiff argues that her work history after her alleged onset date is evidence of her disability because she was unable to keep any of these jobs for longer than two or four months. While the Court agrees with the plaintiff that her short-lived employment during this time is somewhat indicative of her alleged disability, it was proper for the ALJ to consider that plaintiff worked after her alleged onset date. It is also noted that plaintiff told a nurse at Johnson County Mental Health Center on May 1, 2001, that she did not want to work so she could focus on school. And when asked at the hearing why she had repeatedly left one of her jobs as a waitress, she stated she would leave because she was "bored. . . . Or I didn't like it anymore. Or school."
Williams v. Chater, 923 F. Supp. 1373, 1379 (D. Kan. 1996) (citing 20 C.F.R. § 404.1571, 416.971).
Finally, the ALJ noted that plaintiff's treatment history weighs against her allegations of total disability. Frequency of medial contacts is a factor for the ALJ to consider when determining plaintiff's credibility. Her mental health treatment in 1997, 1998, and 1999 was sporadic. Plaintiff was discharged from treatment at Johnson County Mental Health Center in August 1998 due to erratic attendance and minimal follow through and cooperation, and did not seek treatment until October 1999, more than a year later. There was also a lapse in treatment after her doctor stopped seeing patients from March 2000 until May 2001. While it is true that plaintiff still received medication and was in telephone contact with her physician, she did not receive any other treatment for her disability, and according to plaintiff and her physician, the medication was not as effective as desired.
Hargis v. Sullivan, 945 F.2d 1482, 1489 (10th Cir. 1991).
In short, the ALJ considered the entire record, set forth the specific evidence he relied upon, applied the correct legal standards in evaluating plaintiffs testimony, and based his determination on substantial evidence in the record as required. Because credibility determinations are ultimately left to the ALJ when he has substantial evidence for his determination, the Court finds that the ALJ's decision regarding plaintiff's credibility is not erroneous.
B. Treating Physicians' Opinions
In his decision, the ALJ gave "little weight" to the opinion of Dr. Churchill, who was plaintiff's treating physician from October 29, 1999, to March 2000. Specifically the ALJ gave little weight to a statement in Dr. Churchill's October 25, 2000, Mental Health Questionnaire in which he stated that plaintiff's ability to hold a job with her level of impulsivity was marginal, at best.
The ALJ must give "controlling weight" to the opinion of a treating physician, provided that opinion is "well-supported and is not inconsistent with other substantial evidence." According to the Tenth Circuit, a treating physician's opinion is not dispositive on the ultimate issue of disability. In addition to its consistency with other evidence, the court examines a treating physician's opinion with several factors in mind, including the length of the treatment relationship, the frequency of examination, and the extent to which the opinion is supported by objective medical evidence. In short, the ALJ cannot disregard a treating physician's opinion that a claimant is disabled without giving legitimate and specific reasons for doing so.
White, 271 F.2d at 1259 (quoting 20 C.F.R. § 404.1527(d)(2)).
Id. (citing Castellano, 26 F.3d at 1029).
Id. (citing 20 C.F.R. § 404.1527(d)(2)).
See Goatcher v. United States Dep't of Health Human Servs., 52 F.3d 288, 290 (10th Cir. 1995) (citing Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987)).
In his written decision, the ALJ stated that he was aware treating physicians' opinions are entitled to substantial weight, but that the weight given to the opinion can be limited by how much support there is in medical signs and findings. The ALJ decided Dr. Churchill's October 2000 opinion in the Mental Health Questionnaire was of little weight because Dr. Churchill had not seen plaintiff since March 2000, and his conclusions were not consistent with plaintiffs "current levels of functioning, i.e., her activities of daily living, including the care of her young son, a full range of household chores, which includes the handling of her own finances, as well as full-time attendance at a university."
The Court also notes that the plaintiff only saw Dr. Churchill for five months during the time of her alleged disability. While it is true that Dr. Churchill continued to prescribe medication for plaintiff even after he stopped seeing patients in March 2000, the court may look at the length of the treating relationship when determining whether the ALJ gave proper credibility to the physician's opinion. The record also indicates that plaintiff's interaction with Dr. Churchill during the time he was her treating physician consisted mostly of outpatient visits with Dr. Churchill during which he simply changed plaintiff's medication based on what symptoms she said she was experiencing. There is little evidence in the record of any tests or analysis on which Dr. Churchill based his opinions.
White, 271 F.2d at 1259 (quoting 20 C.F.R. § 404.1527(d)(2)).
Plaintiff argues Dr. Churchill's opinion should be given substantial weight because it is consistent with Dr. Mintz's opinion from November 7, 2000. The ALJ stated that he did not give full weight to Dr. Mintz's opinion because under the regulations, ALJs are not bound by findings of state agency medial or psychological consultants. He stated Dr. Mintz's opinion was based on a one-time evaluation, and it was not supported by plaintiff's current level of functioning.
The Court finds that the ALJ in this case set forth specific and legitimate reasons for discounting Dr. Churchill's October 2000 opinion. As noted by the ALJ, Dr. Churchill's opinion concerning plaintiff's limitations was not consistent with plaintiff's current level of functioning. Dr. Churchill states that in his opinion plaintiff will continue to have problems academically and not be "feasible for a Vo-Tech or College level training program," yet at the time of the hearing she had obtained an associates degree and was enrolled as a full time college student at Emporia State University.
The ALJ apparently gave some weight to Dr. Churchill's opinion, because he uses Dr. Churchill's diagnoses of plaintiff's attention deficit disorder, dysthymia and possible obsessive compulsive disorder. The ALJ did not agree with the severity of plaintiff's problems and their interference with her abilities that Dr. Churchill claims in his opinion. Nevertheless, the ALJ gave a sufficient reason why he gave little weight to Dr. Churchill's opinion as opposed to controlling weight. In short, because Dr. Churchill's opinion is inconsistent with the record and not well supported by clinical evidence, the ALJ did not err in rejecting that opinion. Moreover, plaintiff's ability to work is supported by other physicians including Dr. Neufeld's evaluation of plaintiff on April 3, 1997, and state agency physicians who assessed plaintiff for a Psychiatric Review Technique Form and a Mental Residual Functional Capacity Assessment.
C. Burden of Proving that Plaintiff Can Perform Other Jobs in the National Economy
Plaintiffs final argument is that the ALJ's hypothetical question, eliciting the vocational expert's (VE) testimony that there were jobs existing in the national economy that plaintiff remained capable of performing, failed to include all of plaintiff's limitations and, thus, the VE's testimony fails to constitute substantial evidence supporting the denial of benefits. A vocational expert's testimony can provide a proper basis for an ALJ's determination where the claimant's impairments are reflected adequately in the hypothetical inquiries to the expert. The ALJ, however, is required to accept and include in the hypothetical question only those limitations supported by the record.
Gay, 986 F.2d at 1341.
Shepherd v. Apfel, 184 F.3d 1196, 1203 (10th Cir. 1999).
According to plaintiff, the ALJ's hypothetical question omitted plaintiff's significant limitations, and the ALJ ignored the questions plaintiff's attorney asked the VE, which included all of plaintiff's limitations. First plaintiff argues the ALJ should have taken into account the VE's response to her attorney's question that if plaintiff were unable to keep a job for more than four months at a time she would eventually have to change areas because she would have been hired and fired by every employer in her area, and it would be difficult to remain employed. The ALJ stated in his written opinion that he believed it was not plaintiff's impairments that kept her from keeping a job for more than four months at a time, it was her choice of jobs that deal directly with the public and co-workers that accounted for her short work history. Because the ALJ properly found that this was not one of plaintiff's limitations, his disregard of the VE's testimony in answering this question was proper.
Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000) (citing Gay, 986 F.2d at 1341).
Second, plaintiff's attorney asked the VE if a person would be able to work if he or she had been diagnosed or assessed with a GAP of 50, or if work would be available if a person could not maintain regular attendance. The VE answered that either would eliminate all jobs. Again, the ALJ's determination of plaintiff's RFC is supported by substantial evidence, and, thus, he was not required to include the limitation in his hypothetical questions to the VE. Because the ALJ included in his hypothetical questions all of the limitations supported by the record, the VE's testimony elicited by those hypothetical questions provided substantial evidence to support the denial of benefits.
See Id. (ALJ relied on appropriate factors and committed no error with respect to his assessment of plaintiff's subjective complaints of pain where ALJ noted the paucity of objective medical findings in the record and the claimant's failure to report disabling pain to her physicians.)
See Decker v. Chafer, 86 F.3d 953, 955 (10th Cir. 1996).
In sum, having carefully reviewed the record in this case and having considered plaintiff's arguments in light of the record, the Court concludes that substantial evidence supports defendant's decision to deny plaintiff's application for disability benefits and that no deviation from established legal standards occurred. IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff's motion for judgment is denied and defendant's decision denying plaintiff disability benefits is affirmed.