Opinion
Civil Action No. 99-0983-P-L.
October 27, 2000
REPORT AND RECOMMENDATION
The Plaintiff brings this action under 42 U.S.C. § 405(g) and § 1383(c)(3) seeking judicial review of a final decision of the Commissioner of Social Security denying her claim for disability insurance benefits, and a period of disability.
This action was referred to the undersigned for report and recommendation pursuant to 29 U.S.C. § 636(b)(1)(B). Oral argument was held on September 21, 2000. Upon consideration of the administrative record, the memoranda of the parties, and the oral argument, it is recommended that the decision of the Commissioner be affirmed.
I. ISSUES ON APPEAL
The plaintiff presents one issue on appeal:
1. WHETHER THE ALJ ERRED IN FINDING THAT PLAINTIFF SUFFERS FROM NO SEVERE MENTAL IMPAIRMENT.
II. BACKGROUND FACTS
Plaintiff was born June 7, 1951 and was 47 years old at the time of the hearing decision. (Tr. 107, 20). She completed high school (Tr. 33) and earned an associate degree in nutrition after two years of college. Plaintiff was in the Army from 1974 to 1990, obtaining the rank of E5 sergeant. (Tr. 37.) She has past work experience as a medical specialist/nurse's aide, a cardiac lab/EKG technician, a movie theater manager, and a housekeeper (Tr. 218). Plaintiff has not worked since March 14, 1993 (Tr. 93.) She filed her current application for disability insurance benefits on January 30, 1996, alleging March 14, 1993, as her disability onset date. (Tr. 107.) As grounds for disability, plaintiff alleged headaches, high blood pressure, high cholesterol, inability to stand, and pain. (Tr. 12.)
Plaintiff filed three prior applications for disability insurance benefits on January 28, 1993, alleging disability onset of April 12, 1990 (Tr. 56); December 17, 1993, alleging disability onset of March 14, 1993 (Tr. 63); and April 26, 1995, alleging a disability onset of March 14, 1993 (Tr. 93). Plaintiffs first two applications were denied initially, without request for reconsideration. (Tr. 68). Plaintiff requested reconsideration of the denial of her third, April 1995 application. Upon reconsideration, the third application was denied on September 13, 1995 (Tr. 105).
Plaintiffs application for benefits was denied both initially and upon reconsideration. (Tr. 112, 130.) Plaintiff requested a hearing on August 22, 1996 (Tr. 142.) A hearing was held on January 8, 1997. (Tr. 29). On June 15, 1998, the ALJ issued a decision with a psychiatric review technique form attached, denying plaintiffs claim. (Tr. 9.) The ALJ determined, based upon the medical-vocational guidelines, that plaintiff was not disabled. (Tr. 19.) The Appeals Council denied review on September 17, 1999 (Tr. 5.) Plaintiff filed this action on November 8, 1999 (Doc. 1).
III. ALJ FINDINGS
The ALJ found as follows (Tr. 18-19):
1. The claimant met the disability insured status requirements of the Act on March 14, 1993, the date the claimant stated she became unable to work, and continued to meet them through June 30, 1997, but not thereafter.
2. The claimant has not engaged in substantial gainful activity since March 14, 1993.
3. The medical evidence establishes that the claimant has osteoarthritis of the right knee and chronic back pain due to degenerative disc disease of the lumbar spine, which are severe impairments, but does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P Regulations No. 4.
4. The claimant's subjective complaints are credible to the extent they would preclude more than sedentary work.
5. The claimant has the residual functional capacity to perform the physical exertion requirements of work except for lifting/carrying more than ten pounds occasionally. There are no nonexertional limitations ( 20 C.F.R. § 404.1545).
6. The claimant is unable to perform her past relevant work as a lab technician, housekeeper, or theater supervisor.
7. The claimant has the residual functional capacity to perform the full range of sedentary work ( 20 C.F.R. § 404.1567).
8. The claimant is now 46 years old, which is defined as a younger individual ( 20 C.F.R. § 404.1563).
9. The claimant has two years of college education ( 20 C.F.R. § 404.1564).
10. In view of the claimant's age and residual functional capacity, the issue of transferability of work skills is not material.
11. Section 404.1569 of Regulations No. 4 and Rules 201.28 and 201.21, Table No. 1 of Appendix 2, Subpart P, Regulations No. 4, direct a conclusion that, considering the claimant's residual functional capacity, age, education, and work experience, is not disabled.
12. The claimant was not under a "disability" as defined in the Social Security Act, at any time through the date of this decision ( 20 C.F.R. § 404.1520(f).
On the attached psychiatric review technique form, the ALJ marked § 12.04 Affective disorders as present, specifying "depressive disorder, not otherwise specified." (Tr. 22.) The ALJ rated plaintiffs impairment severity as follows: slight restriction of activities of daily living, slight difficulties in maintaining social functioning, seldom deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner (in work settings or elsewhere). (Tr. 23.) The ALJ found no episodes of deterioration or decompensation in work or work like settings. Id. The ALJ summarized that there were no functional limitations at the listing level. Id.
IV. DISCUSSION
A. Standard of Review .
In reviewing claims brought under the Act, this court's role is a limited one. This Court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner of Social Security. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1986). Instead, this Court must determine whether the Commissioner's decision to deny Plaintiffs benefits is supported by substantial evidence and correct application of legal principles.
Substantial evidence is defined as "more than a scintilla but less than a preponderance," and consists of "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 390, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Bloodsworth, 703 F.2d at 1239. The Commissioner's decision must be affirmed if it is supported by substantial evidence even when a court finds that the preponderance of the evidence is against the decision of the Commissioner. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (1971); Bloodsworth, 703 F.2d at 1239. "In determining whether substantial evidence exists, we must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Also, as set forth in 42 U.S.C. § 405(g), "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive."
Moreover, "[t]he Secretary's failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal." Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991). This Court's review of the Commissioner's application of legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
B. Statement of the Law
An individual who files an application for Social Security disability benefits must prove that she is disabled. See 20 C.F.R. § 416.912 (1998). Disability is defined as the "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a) (1992); 20 C.F.R. § 416.905(a) (1991). The Social Security regulations provide a five-step sequential evaluation process for determining if a claimant has proven that she is disabled. See 20 C.F.R. § 416.920. At the first step, the claimant must prove that she has not engaged in substantial gainful activity. At the second step, she must prove that she has a severe impairment or combination of impairments. If, at the third step, she proves that her impairment or combination of impairments meets or equals a listed impairment, she is automatically found disabled regardless of age, education, or work experience. If she cannot prevail at the third step, she must proceed to the fourth step where she must prove that she is unable to perform her past relevant work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In evaluating whether plaintiff has met this burden, the examiner must consider the following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; (4) the claimant's age, education and work history. Id., at 1005. Once plaintiff meets this burden, it becomes the Commissioner's burden to prove at the fifth step that plaintiff is capable of engaging in another kind of substantial gainful employment which exists in the national economy, given age, education, and work history. Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985). If the Commissioner can demonstrate that there are jobs the claimant can perform, the claimant must prove she is unable to perform those jobs in order to be found disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Powell o/b/o Powell v. Heckler, 773 F.2d 1572, 1575 (11th Cir. 1985); Ambers v. Heckler, 736 F.2d 1467, 1469 (11th Cir. 1984). See also Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987), citing Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985).
C. Evidence
1. HEARING TESTIMONY (Tr. 33-45.)
The plaintiff testified that she was born June 7, 1951. At the time of the hearing she was 5'9" and weighed 220 pounds. She completed high school, and holds an Associate of Arts degree in nutrition. She has worked both in the military and in the civilian world as a nurse's assistant, and she once ran an "upper respiratory infection" ward. Most recently, plaintiff was a housekeeper at Mobile Infirmary Medical Center.
The plaintiff considers herself 40 pounds overweight but states she is unable to exercise. She has a driver's license and is able to drive short distances. The plaintiff pays the rent on her own apartment, and her brother lives with her. The plaintiff was in the U.S. Army for 16 years, obtaining the rank of E5 Sergeant. She receives $777.00 per month from the Army.
Plaintiff stated that she receives medical care from the VA hospital, and that she is under treatment for hypertension, high blood pressure, cholesterol, a "problem with [her] stomach", and knee pain. She stated that pain medication for her knees makes her dizzy. The plaintiff also stated she suffers from migraine headaches which "come on for no reason" and may last three or four days. She declared that in a typical month she has about six migraine headaches. Stress causes the plaintiffs blood pressure to increase and sometimes causes her headaches. A medication for knee pain has caused the problems with plaintiffs stomach.
Plaintiff testified that she suffers from depression, though she was not in treatment at the time of the hearing, nor was she taking any medication for depression.
Plaintiff stated that she is unable to work because of her knees. She is unable to stand up and "cannot sit down long." In either case, plaintiff testified that her knees get stiff. She sits for maybe 2 hours at a time, and she can drive for 30 minutes. Prolonged sitting causes the plaintiff pain. Plaintiff could not estimate how long she is able to stand up at a time.
On a typical day, the plaintiff gets up, takes a shower, gets dressed, and lies in bed or on the sofa all day long. Her brother takes care of the housework. Plaintiff cooks with a crock pot.
The plaintiff summarized that she cannot stay on her feet as she used to. She tires easily, and has back pain if she leans over. This causes a sense of frustration, because at her age, plaintiff feels that she ought to be able to do what she wants.
Vocational expert Sue Berthume also testified at the hearing. (Tr. 47-55.) Ms. Berthume began by examining the claimant on her work history as a theater supervisor from 1984 to 1989. The plaintiffs attorney posed a hypothetical based upon an individual with the claimant's age, education, and past relevant work experience. The attorney further asked Ms. Berthume to assume an individual who also was unable to stand for more than one hour at a time, and whose medications required her to lie down for a minimum of four hours during an eight hour day. Ms. Berthume testified that such an individual would be disabled. "Being able to sit only one hour at a time wouldn't even place her in the sedentary range and also if there's side effects from the medication causing her to have to lay down four hours out of an eight hour work day, work would not be feasible." (Tr. 49.) When asked about the same hypothetical, excluding the requirement of lying down 4 hours per work day, Ms. Berthume testified that such an individual would not be able to perform the plaintiffs past relevant work because the prior work was "in the light range." (Tr. 50.) On further questioning from the attorney and the ALJ, the VE testified that an individual of the relevant background, who was unable to sit for more than one hour at a time, would still be able to perform sedentary jobs such as cashier and hotel clerk. The VE also testified that the claimant's prior work skills — especially as a theater supervisor — would transfer to jobs such as cashier and hotel clerk.
The claimant's attorney then asked the VE to assume a person capable of doing sedentary work, but who suffers from depression that results in a mild inability to concentrate and pay attention to what she is doing. The VE opined that such a depression would not keep an individual from performing the cashier and clerk jobs previously identified. Furthermore, moderate depression would also not prevent an individual from performing the jobs described. The VE testified that a marked impairment of ability to concentrate could eliminate the two jobs, and that a severe impairment would eliminate the jobs of cashier and hotel clerk.
On examination by the ALJ, the VE testified that mild and moderate depression would not prevent an individual with the claimant's background and experience from performing a significant number of sedentary jobs such as cashier, hotel clerk, or some dispatching positions.
2. VOCATIONAL HISTORY
The record contains three vocational reports dated February 12, 1993, January 23, 1994, and February 8, 1996, in which in which the plaintiff details her work history. (Tr. 152-169.) From 1978 to 1980, plaintiff worked in the Army as a medical specialist. In this capacity plaintiff fed patients, changed bed linens, took vital signs, and transported patients to appointments within the hospital. Plaintiff also monitored patient oxygen tanks and changed them as needed. When working with newborns, plaintiff transferred babies from the delivery room, placed babies in incubators and monitored temperatures, and administered eye drops to babies. She weighed and measured babies and assigned an APGAR score. The plaintiff entered information into patient records. Plaintiff estimates that she walked three hours per day, stood 4 hours per day, and sat one hour per day, with constant bending, and lifting over fifty pounds frequently. She lifted over 100 pounds when moving a patient from bed to wheel chair or back. (Tr. 159.)
The reports appear to have been filled out by the plaintiff. There is no indication that they were prepared for her signature, and the details of each job are related in first person.
Plaintiff held three different jobs in the Army during the years 1980 to 1990. For part of this time, plaintiff worked as a "cardiac lab specialist". Plaintiff was trained to operate or monitor different devices, including treadmills, EKG machines, "halter monitors" (a 24-hour cardiac monitor), and pacemakers. She recorded all functions and reported information to the physician. Plaintiff handled records and supervised the pacemaker clinic, monitoring at-home patients for pacemaker malfunctions. Plaintiff sat as much as two hours per day, but otherwise stood and walked while at work. (Tr. 152-153, 161.) She also worked as a medical specialist with the responsibilities recounted above. Plaintiff posted information in patient notes. Plaintiff oversaw two to three people and trained new medical specialists. She wrote care plans for discharged patients to follow upon leaving the hospital. She also cleaned some hospital rooms. (Tr. 165.) Plaintiff states that she walked two hours per day, stood five hours per day, and sat two hours per day. Plaintiff also bent constantly, and lifted 10-50 pounds frequently and up to 100 pounds. (Tr. 154.)
From 1984 to 1989 plaintiff also worked a the manager of an Army movie theater. In this job, plaintiff ran the cash register, deposited money, processed time sheets, took daily inventory, and supervised three employees. She oversaw projection, the snack bar, and janitorial duties. Plaintiff estimates that she walked one hour per day, stood three hours per day, and sat two hours per day, with occasional bending. She lifted up to 100 pounds. (Tr. 167.)
After leaving the Army, plaintiff worked in environmental services at Mobile Infirmary Medical Center from 1992 to 1993. In that capacity she oversaw the maintenance of ten hospital rooms daily. Plaintiff worked from 7:30 a.m. to 4:00 p.m., changing linens, mopping, dusting, cleaning the bathrooms, and removing trash. Plaintiff walked or stood eight hours per day, and sat as much as one hour per day. She bent constantly and lifted up to 25 pounds frequently, occasionally lifting up to 50 pounds. (Tr. 155.)
3. ACTIVITIES OF DAILY LIVING
The record also contains four DDS Activities of Daily Living Forms dated February 3, 1993, December 21, 1993, June 12, 1996, and November 18, 1996, all of which appear to have been filled out by the plaintiff. (Tr. 174-186.) In these reports, plaintiff states that on an average day she wakes up, bathes, and dresses. If she does not have a headache, plaintiff states that she watches the news or game shows on television, does word searches, or reads the newspaper or magazines. (Tr. 174, 175, 180.) Sharing responsibilities with her brother, plaintiff shops, cooks, cleans, and does the laundry. Id. Riding with someone else, plaintiff generally leaves the house twice a week to visit family members. On these visits, plaintiff talks or plays cards. Plaintiff enjoys walking and dancing, but is no longer able to dance because of knee pain. (Tr. 176.) While plaintiff stated on her December 1993 form that she could perform tasks for one to two hours before knee pain caused her to stop, plaintiff stated in November 1996 that she can only perform tasks or chores for 15 to 30 minutes because of pain. (Tr. 177, 181.)
4. MEDICAL EVIDENCE
a. Physical Health
After her discharge from active duty, Plaintiff sought treatment for various ailments at Veteran's Administration (VA) outpatient clinics. On November 14, 1990, she complained of right knee pain. An x-ray of her right knee was normal (Tr. 234). Due to epigastric pain, she underwent a complete abdomen echogram on March 18, 1992; results were normal (Tr. 245). She underwent a sigmoidoscopy, which showed she had hemorrhoids but no other abnormalities (Tr. 240). A barium enema performed on April 10, 1992, was unremarkable (Tr. 240-241). On July 20, 1992, Plaintiff complained of several days of sporadic pain, swelling and tingling in her left leg and foot (Tr. 333). Over the next few days, x-rays were taken of Plaintiffs lumbar spine and left hip (Tr. 333-334). Radiographs of the left hip did not demonstrate any abnormalities (Tr. 333). Radiographs of the lumbar spine revealed mild degenerative changes of the facets of the lower lumbar spine. The intervertebral disc spaces were relatively well maintained with the lumbar vertebral bodies in anatomical alignment and position (Tr. 334).
Plaintiff said she had degenerative arthritis in her right knee, was unable to climb stairs, and had difficulty bending (Tr. 345). On February 10, 1994, she was examined by Gregory K. Parker, M.D., a disability determination service consultative physician. He reported essentially normal examination results, except for limitation of the range of motion of the right knee. Plaintiff did not have any instability in her knee (Tr. 345-348). Dr. Parker assessed moderately severe osteoarthritis of the right knee (Tr. 348).
On August 29, 1994, Plaintiff presented with chronic anemia. She checked in for a work-up to rule out gastrointestinal (GI) blood loss (Tr. 263-265). Evaluation utilizing upper and lower GI endoscopy revealed no abnormality (Tr. 263). A bone marrow aspiration was negative for malignant cells (Tr. 263-265).
Notes dated July 12, 1995, indicate Plaintiff complained of left leg and hip pain subsequent to walking and doing aerobics (Tr. 274).
On February 21, 1996, Dr. Parker examined Plaintiff again (Tr. 342-344). She complained of chronic back pain and recurrent headaches (Tr. 342). Straight leg raises were negative (Tr. 343). She had moderately severe difficulty arising from the sitting to the standing position (Tr. 343). Aside from the limited range of motion of the lumbar back, the examination was again essentially normal (Tr. 342-344). Dr. Parker assessed acute back pain due to lumbar muscle spasm; recurrent migraine headaches; and degenerative disc disease of the lumbar spine (Tr. 344). On June 5, 1996, Dr. Parker diagnosed lumbar strain, and prescribed Motrin (Tr. 341).
On October 21, 1996, the claimant had an abdominal ultrasound performed which was normal (Tr. 365). An upper GI series was normal (Tr. 366), as was a barium enema (Tr. 364).
William A. Crotwell, III, M.D., performed a consultative orthopedic evaluation on August 11, 1997 (Tr. 398-400). Plaintiff complained of bilateral knee pain (Tr. 398). She weighed 220 pounds (Tr. 398). She last worked as a nursing assistant, operating room technician, and lab technician (Tr. 398). She cooked occasionally, cleaned occasionally, drove minimally, and walked about one half a block (Tr. 398). She had a full range of motion with both knees; her left knee had minimal crepitus (Tr. 399). Plaintiffs right patella had crepitus with manipulation. X-rays showed no major arthritis. Dr. Crotwell's impression was chondromalacia of patella (softening of the patella), mild to moderate (Tr. 399). Dr. Crotwell stated Plaintiff could perform medium, light and sedentary work (Tr. 399).
Angular or rotational changes in the leg apparently produce chondromalacia patellae by unbalancing elements of the quadriceps with patellar misalignment during movement. Knee pain occurs, especially when climbing or descending stairs. Treatment consists of isometric quadriceps strengthening, analgesic medications, and avoidance of pain-producing activities. (Merck).
b. Mental Health
In a scheduled appointment on August 7, 1996, plaintiff was referred to an M.D. for a host of complaints, including hypertension, increased cholesterol, degenerative joint disease, headaches, insomnia, knee pain, and questionable depression. (Tr. 376.) On August 26, 1996, plaintiff was evaluated by an M.D. based on her complaints of depression. The plaintiff stated that she had trouble sleeping and had run out of amitriptyline sleeping pills. She also stated that she was depressed and had crying spells. The doctor noted that plaintiff had no history of inpatient psychiatric care; plaintiff was "fully oriented and cooperative" with coherent speech euthymic mood, and no psychosis or suicidal ideation. (Tr. 374.) The doctor diagnosed depressive disorder and prescribed amitriptyline, an antidepressant with sedative effects. Id.
The signature on the progress notes for the August 26, 1996, appointment is illegible, but clearly followed by the initials "M.D."
Plaintiff began taking amitriptyline as early as September 1993. A progress note from September 1, 1993 reflects that plaintiff presented at a walk-in appointment complaining of a headache which had lasted two days, with no relief from medications. Dr. Deborah Gatlin diagnosed muscle tension headaches and prescribed fioricet and amitriptyline under the brand name Elavil. (Tr. 298-99.)
See 1999 Physician's Desk Reference at 3418.
The record contains a consultative psychological evaluation from Blaine C. Crum, Ph.D., which was conducted on February 3, 1997. (Tr. 392-396.) Dr. Crum described the claimant as a "friendly individual who worked hard on the assigned tasks. Overall, this was felt to be a representative assessment of her capabilities." (Tr. 392.) On the WAIS-R test, plaintiff scored a verbal IQ of 84, a performance IQ of 85, and a full scale IQ of 84. On the Wide Range Achievement Test, plaintiff score a 65/1st percentile in reading, 70/2nd percentile in spelling, and 93/32nd percentile in math. Dr. Crum evaluated plaintiffs scores as playing her "overall capabilities in the mid dull average range. Most of her subtest scores fell in a fairly compact range which gave support to the accuracy of the assessment of her capabilities." (Tr. 393.) Dr. Crum continued,
The Wide Range Achievement Test reflected 1st 2nd and 32nd percentile performance on the reading, spelling, and math sections, respectively. This indicated that her reading and spelling skills are at a third grade level with math skills comparable to seventh grade fundamentals. This suggests that she likely has a learning disability based on the discrepancy between her measured ability and her reading and spelling fundamentals. For practical purposes, she is perceived as being unable to read and write with any effectiveness, and this likely contributed to any difficulties she encounted while in the Army.
Diagnosis is developmental reading disorder.
Patricia's capabilities fall in the mid dull average range with a relatively consistent performance on the various tasks. When comparing her intellectual functioning with her third grade reading and spelling skills, it si felt that she has likely had a learning disability which has impacted her ability to read and write effectively. For practical purposes, she is illiterate and unable to read or write with any effectiveness.
(Tr. 394.) Dr. Crum also completed a supplemental questionnaire as to residual functional capacity. (Tr. 393-96.) Dr. Crum found that the plaintiff suffered from moderate restriction of activities of daily living, moderate difficulty in maintaining social functioning, frequent deficiencies of concentration, persistence, or pace resulting in failure to complete tasks in a timely manner (in a work setting or elsewhere), and frequent 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 (which may include deterioration of adaptive behaviors). (Tr. 395.) In the work setting, Dr. Crum also found that the plaintiff suffered from marked limitations in ability to understand, carry out, and remember instructions, moderate limitation in plaintiffs ability to respond appropriately to supervision, moderate limitation in ability to respond appropriately to co-workers, moderate limitation in ability to perform simple tasks, and moderate limitation of ability to perform repetitive tasks. (Tr., 395-96.) Dr. Crum concluded that the above described limitations have lasted or can be expected to last 12 months or longer, with the opinion that the existing level of severity has existed at least since plaintiff was in the seventh grade. He concluded, "this individual has a developmental reading disorder which affects her ability to read, write, and master language tasks. She is perceived as illiterate and unable to read or write with any success." Id.
Charles P. Alexander, M.D., performed a consultative psychiatric evaluation on June 24, 1997. He stated in his report,
Ms. Sykes has a number of medical problems including migraine headaches, arthritis, high blood pressure, and high cholesterol. Prior to her medical problems, Ms. Sykes was very active and athletic. Physical limitations caused by her medical problems have caused her to become increasingly depressed over the past two years. At the recommendation of her physician, Ms. Sykes sought outpatient psychiatric treatment approximately four months ago at the V.A. Outpatient Clinic on Springhill Avenue. She now goes to "stress class" monthly and is currently prescribed Amityiptyline, 200 mg., HS. Ms. Sykes describes herself as "moody". She is sensitive, often irritable, and she become angry easily. Ms. Sykes was experience mid-insomnia most nights, but is sleeping better with medication. Her appetite is somewhat variable. She has difficulty concentrating and some problems with short-term memory.
General Observations. Ms. Sykes was appropriately dressed and appeared well groomed. She ambulated with the aid of a cane. She displayed no obvious sensory deficits. Her speech was fluent and relevant. Her thinking seems clear and goal directed.
Mental Status Exam. Ms. Sykes was oriented in all four spheres. She appears of Average Intelligence. Her fund of knowledge was good. 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. Ms. Sykes displayed no memory deficits. Her judgment seemed good. She appears to have limited insight into her present condition. Her mood seemed appropriate. Her affect was normal. She exhibited no loosening of associations, tangential or circumstantial thinking. There was no evidence of hallucinatory behaviors or delusions. Ms. Sykes denies suicidal ideations.
(Tr. 401-02). Dr. Alexander made an Axis I diagnosis of dysthmic disorder. He concluded that plaintiffs prognosis was good. "Ms. Sykes appears of average intelligence. She has limited insight into her current condition but is presently in treatment and appears motivated to improve. She was encouraged to remain in treatment and to follow the recommendations of her physician. Id. Evaluating plaintiffs residual functional capacity based on her psychiatric state, Dr. Alexander found slight restriction of activities of daily living, slight degree of difficulty in maintaining social functioning, often deficiencies of concentration, persistence, or pace, and no episodes of deterioration or decompensation in work or work-like settings. (Tr. 403-404.) In a routine work setting, Dr. Alexander concludes that plaintiff would have mild restrictions in ability to understand, carry out and remember instructions, mild limitation in responding appropriately to supervision, mild limitation in responding appropriately to co-workers, mild limitation in responding appropriately to customary work pressures, no limitation in performing simple tasks, and mild limitation in performing repetitive tasks. Id. Dr. Alexander opined that the mild limitations listed had lasted for up to two years. Id.
D. Plaintiff's Argument
The plaintiff argues that the ALJ erred at the second step of the sequential evaluation process by failing to conclude that the plaintiff suffered from a "severe" mental impairment. She states that the limitations on plaintiffs residual functional capacity as identified by Dr. Crum and Dr. Alexander establish that plaintiff suffers from a severe mental impairment.
The Eleventh Circuit has described the plaintiffs burden for establishing a severe impairment in McDaniel v. Bowen:
At step two of§ 404.1520 and § 416.920, a claimant's impairment is determined to be either severe or not severe. Step two is a threshold inquiry. It allows only claims based on the most trivial impairments to be rejected. The claimant's burden at step two is mild. An impairment is not severe only if the abnormality is so slight and its effect so minimal that it would clearly not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience. Claimant need only show that her impairment is not so slight and its effect is not so minimal.McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986). Although plaintiffs burden is not heavy, a medical opinion on the ultimate issue of disability, even by a treating physician, is never controlling or entitled to special significance. See SSR 96-5p, 61 Fed.Reg. 34,471 (1996). The responsibility for assessing the evidence, and determining residual functional capacity at the hearing level, rests with the ALJ. See 20 C.F.R. § 404.1546. "The ALJ's task is to examine the evidence and resolve conflicting reports." Wolfe v. Chater, 86 F.3d 1072, 1079 (11th Cir. 1996); Powers v. Heckler, 738 F.2d 1151, 1152 (11th Cir. 1984) (per curiam).
The ALJ considered the evidence of the consulting psychologist and consulting psychiatrist which form the basis of plaintiffs argument in the present appeal. (Tr. 14-15.) The ALJ concluded in the Psychiatric Review Technique Form attached to the hearing decision that the plaintiff suffered from a section 12.04 Affective Disorder of "Depressive disorder, not otherwise specified." (Tr. 22.) However, the ALJ determined that the claimant's depressive disorder only resulted in slight restrictions of activities of daily living, slight difficulties in maintaining social functioning, seldom deficiencies of concentration, persistence, or pace resulting in failure to complete tasks in a timely manner, and no episodes of deterioration or decompensation in work or work-like settings. Id.
The question on review by this Court is whether the ALJ's determination that the plaintiff suffered only a slight mental disorder which resulted in no severe restrictions to plaintiffs residual functional capacity was supported by substantial evidence. Richardson v. Perales, 402 U.S. at 390, 401; Bloodsworth v. Heckler, 703 F.2d at 1239.
Dr. Crum concluded that plaintiff suffers from a developmental reading disorder which resulting moderate limitations in the first two categories of residual functional capacity (activities of daily living and social functioning) and frequent limitations in the second two categories (concentration, persistence, or pace, and deterioration or decompensation in work or work-like settings). (Tr. 393-96.) The ALJ considered Dr. Crum's opinion that the plaintiff suffered from frequent limitations in concentration, persistence or pace, and deterioration or decompensation in work or work-like settings, but found Dr. Crum's conclusion inconsistent:
That undersigned notes that Dr. Crum's assessment is inconsistent with his narrative report. The claimant, who has an associate degree and was a sergeant in the Army, was described as illiterate and unable to read or write with any effectiveness. He found that she was dysthymic. The claimant was in the Army for 16 years and was honorably discharged. She worked as a lab technician and nursing assistant. Due to these facts and the inconsistencies in Dr. Crum's assessment, the undersigned has not accorded that opinion controlling weight in reaching this decision.
(Tr. 15.) The undersigned concludes that the ALJ erred in attributing the diagnosis of dysthymic disorder to Dr. Crum. In fact, it was Dr. Alexander who made that diagnosis. (Tr. 402.) However, in every other respect, the ALJ's conclusions regarding Dr. Crum are consistent with the record. Dr. Crum concluded that plaintiff is illiterate with corresponding severe limitations to residual functional capacity, and yet the plaintiff testified that the completed high school and two years of college and earned an associate degree in nutrition. (Tr. 33.) The record contains several forms which appear to have been filled out and signed by the plaintiff in her applications for disability. In the narrative answers, the plaintiff writes in coherent sentences. (Tr. 152-169, 174-186). Dr. Crum's conclusions as to the plaintiff functional limitations stemming from illiteracy also cannot be reconciled with the fact that plaintiff managed a movie theater for five years, overseeing employees, processing timesheets for payroll, and taking inventories. (Tr. 167.) Nor is Dr. Crum's conclusion consistent with the plaintiffs statements that as a medical specialist she oversaw other specialists and entered care information on patient charts, or her statements in activities of daily living that she reads newpapers and magazines and does the crossword. (Tr. 152-161, 175.)
Under § 404.1513(a)(3) of the Social Security regulations, the opinion of a licensed psychologist is an "acceptable source" for information about impairments. A residual functional capacity assessment offered by a licensed physician or psychologist is "medical opinion evidence that an adjudicator must consider together with all of the other relevant evidence (including other medical source statements that may be in the case record) when assessing an individuals RFC." SSR 96-5P, 1996 WL 374183. Thus, Dr. Crum's consulting opinion as to plaintiffs illiteracy and resulting functional limitation is certainly relevant to the question of whether plaintiff has a severe mental impairment. However, the Eleventh Circuit has made clear that "medical opinions based upon a single examination are not entitled to the weight given to opinions of treating physicians." McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987.)
In this case, there is no opinion regarding severe mental impairment from a treating physician. The only diagnosis of "developmental reading disorder" — one basis for plaintiffs argument that she suffers a severe mental impairment — comes from a consulting clinical psychologist based upon a single examination. The ALJ articulated several reasons for discrediting the opinion of Dr. Crum. An ALJ may give little weight to a treating physician's opinion when it is contrary to other evidence in the record. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986). When plaintiffs education, work history, testimony, and written statements in the record are considered, the undersigned concludes that substantial evidence supports the ALJ's decision that plaintiff does not suffer from a severe mental impairment of "developmental reading disorder".
The only other evidence plaintiff cites as a basis to conclude she suffers from a severe mental impairment is the opinion of the consulting psychiatrist, Dr. Alexander. Dr. Alexander diagnosed dysthymic disorder and found mild limitations in the first two categories, and frequent restrictions in the last two categories (concentration, persisicence, and pace, and deterioration or decompensation). Addressing Dr. Alexander's conclusions in the hearing decision, the ALJ stated,
"Dr. Alexander's finding that the claimant would often have deficiencies of concentration, persistence, and pace is not consistent with his narrative report wherein he stated that the claimant had no problems with concentration or memory. Therefore, the undersigned has not relied on the opinion that the claimant often experiences deficiencies of concentration, and instead relied on the finding in Dr. Alexander's narrative report that the claimant had no difficulties with concentration or memory which would produce any significant limitation from a functional standpoint.
(Tr. 16.) The ALJ continued,
There was no indication that [plaintiff] had any more than slight restrictions in her activities of daily living and slight difficulties maintaining social functioning. She seldom had deficiencies of concentration and attention. There were no documented episodes of deterioration or decompensation in a work or work-like setting. The claimant's depressive disorder, analyzed under Section 12.04 of the Listing of Medical Impairments is only a slight abnormality having such a minimal effect on the individual that it would not be expected to interfere with her ability to work, irrespective of age, education, or work experience. Therefore, this impairment is not severe according to the standard stated in Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985).
(Tr. 16.) Accord, Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984); McCruter v. Heckler, 791 F.2d 1544, 1546 (11th Cir. 1986); McDaniel, supra, at 1031.
As with Dr. Crum's opinion, substantial evidence supports the ALJ's conclusion that the plaintiff had no concentration or memory problems which "would produce any significant limitation from a functional standpoint." Id. For example, Dr. Crum stated in his report that the plaintiff was in treatment for depression, but there is no evidence of ongoing mental health treatment in the record. Moreover, the plaintiffs testimony and activities of daily living reveal that she cares for her personal needs, cooks, and cleans. (Tr. 35-36, 44-45.) She visits with family, goes out to eat and to the movies, and sought a fishing license in 1996 (Tr. 176, 184, 376.) The ALJ analyzed the record under section 12.04 of the Listing of Medical Impairments and concluded that plaintiffs depressive disorder was "only a slight abnormality having such a minimal effect on the individual that it would not be expected to interfere with her ability to work, irrespective of age, education, or work experience." The ALJ may reject the opinion of a physician when the evidence supports a contrary conclusion. Bloodsworth v. Heckler, 703 F.2d at 1240; see also Jones v. Dept. of Health and Human Services, 941 F.2d 1529, 1533 (11th Cir. 1991) (treating physician's disability opinion discredited as inconsistent with physician's own clinical notes and physical capacities evalution). Where Dr. Alexander's conclusions were inconsistent with the hearing testimony, vocational reports, medical evidence, activities of daily living, and plaintiffs statements to Dr. Alexander, the undersigned is satisfied that the ALJ's conclusion finding no severe mental impairment was supported by substantial evidence. Moreover, it should be noted that, although the ALJ did not find at step two that plaintiff suffered a severe mental impairment, he addressed the possibility and vocational ramifications of depression with the VE, who stated that a person of plaintiffs background with mild or moderate depression would be capable of a significant number of sedentary jobs.
After a full review of the record, it is determined that there is substantial evidence to support the ALJ's finding that the plaintiff is capable of a full range of sedentary work and is therefore not disabled.
CONCLUSION
For the reasons set forth, and upon consideration of the administrative record, the hearing decision, and the memoranda of the parties, it is recommended that the decision of the Commissioner of Social Security be affirmed.
The attached sheet contains important information regarding objections to this report and recommendation.