Opinion
Civil Action No. 99-0983-P-L.
January 30, 2001
JUDGMENT
In accordance with this court's Order entered this date, it is hereby ORDERED, ADJUDGED, and DECREED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED.
ORDER MODIFYING AND ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Pending before this court is Plaintiffs Objection to the Report and Recommendation of the Magistrate Judge (doc. 16), made under 28 U.S.C. § 636(b)(1)(B) and dated October 27, 2000 (doc. 15); and Defendant's Response thereto (doc. 17). The Magistrate Judge recommends that the decision of the Commissioner to deny plaintiff social security disability insurance benefits be affirmed. After due and proper consideration of all portions of this file deemed relevant to the issues raised, and a de novo determination of those portions of the Report and Recommendation to which objection is made, the Report and Recommendation of the Magistrate Judge is due to be adopted as modified as the opinion of this court.
The modifications are typographical only and are as follows.
1. At page 8, line 6, replace "aan" with — an;
2. at 9, ¶ 2, line 2, delete the first "in which"
3. at page 10, ¶ 2, line 1, replace "a" with — as;
4. at page 15, ¶ 3 of the indented quotation, line 3, replace "si" with — is; and
5. at page 19, ¶ 1, line 2, replace "resulting" with — results in.
This court also writes to plaintiffs Objection. Plaintiff asserts that the ALJ and the Magistrate Judge erred in determining that she does not suffer with a severe mental impairment. Plaintiff under went two post-hearing evaluations one by psychologist Dr. Blame C. Crum and the other by psychiatrist Dr. Charles P. Alexander (see Tr. 392-96, 401-06). Plaintiff argues that Dr. Alexander diagnosed "[d]ysthymic disorder" and found that she "often" experiences deficiencies of "concentration, persistence, or pace" constituting a "severe" impairment under 20 C.F.R. § 404.1520(a) (doc. 16, p. 2-3. see doc. 12, p. 7-8).
Pursuant to a de novo review, it is only for this court to determine whether the decision is supported by "substantial evidence." Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
In reviewing claims brought under the Social Security Act, [the court's] role is a limited one. We may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the Secretary. Even if we find that the evidence preponderates against the Secretary's decision, we must affirm if the decision is supported by substantial evidence. Yet, within this narrowly circumscribed role, we do not "act as automatons." We must scrutinize the record as a whole, to determine if the decision reached is reasonable, and supported by substantial evidence.
Substantial evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.Id. (internal citations omitted).
The issue herein, is whether the ALJ's determination, that plaintiff suffers only a "slight" impairment, is supported by substantial evidence.
A mental impairment is defined as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 1382c(a)(3)(D); McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986). Unless the plaintiff can prove that she is suffering from a "severe impairment," she will be denied disability benefits. McDaniel, 800 F.2d at 1031 (relying on Brady v. Heckler, 724 F.2d 914 (11th Cir. 1984)).
The Magistrate Judge found that the ALJ's determination that plaintiff suffered only a "slight" mental impairment was supported by substantial evidence. In so doing, the Magistrate Judge clearly pointed to the ALJ discounting Dr. Alexander's opinion in re deficiencies of concentration (see Tr. 403-06) while relying on Dr. Alexander's narrative report (see Tr. 401-02) that the claimant has no difficulties with concentration or memory, and the ALJ's articulated reasons for doing so (doc. 15, p. 21-23).
In the context of the severity of the impairment, step two ("Is the claimant's impairment severe?") of the five-step sequential process for determining disability, the Eleventh Circuit cautions courts to refrain from venturing beyond step two and importing step five ("Is the claimant unable to perform her former occupation?"), into the analysis. McDaniel, 800 F.2d at 1031. As such, this court's review of the evidence focuses exclusively on the medical evidence of record pertaining to plaintiffs mental impairment.
Over and above that already noted by the ALJ and the Magistrate Judge, this court notes that Dr. Alexander's discredited supplement was completed without administering objective testing and, apparently, without review of any other evidence of record (Tr. 408), while the narrative, dated June 24, 1997, reflects Dr. Alexander's personal observations.
[Plaintiff] was appropriately dressed . . . well groomed . . . She displayed no obvious sensory deficits. Her speech was fluent and relevant. Her thinking seemed clear and goal directed . . .
[She] was oriented in all four spheres. She appears of Average intelligence. Her fund of knowledge was good. She did not loose her concentration and was not easily distracted. She followed directions and answered questions consistently. She displayed no problems with abstract concepts.
[She] 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 delusional ideations . . .
(Tr. 401-402).
Dr. Alexander's June 1997 narrative also notes what plaintiff reported to him, that she has "become increasingly depressed over the past two years. At the recommendation of her physician, [she] sought outpatient psychiatric treatment approximately four months ago at the V.A. Outpatient Clinic . . . She now goes to `stress class' monthly and is currently prescribed Amitriptyline . . ." Id.
Although the ALJ gave plaintiff the opportunity to supplement the record, post-hearing, with documentation "[f]rom the VA center for her counseling" (Tr, 54-55), no such evidence was submitted. On April 18, 1997, plaintiff notified the ALJ, "[w]ith regards to VA Counseling Records, we are unable to secure anymore records from the VA." (Tr. 25).
Further record evidence of plaintiff s alleged mental impairment is scant. A "Psychiatric Review Technique" dated March 25, 1994, and signed Ellen N. Eno, reflects that plaintiff "alleges no mental problems" (Tr. 77-78). A record entry dated August 1, 1994, states:
Psychology note 1 women's clinic: Vet completed Biloxi Women's Survey. No evaluations on clinical scales were noted. Vet report hx of harassment and trauma. Vet not interested in individual therapy services in women's clinic.
(Tr. 291). The report is signed "Virginia . . . M.D. Staff Psychologist."Id. The record also includes an unsigned undated "Supplement To SSA-3368" form which reflects "[m]y mental impairment is not the reason I am unable to work." (Tr. 230, emphasis in original). Below that sentence a notation reads: "Not alleged, not diagnosed." Id.
At the January 8, 1997 hearing before the ALJ, plaintiff and her attorney engaged in the following discourse pertaining to her mental impairment:
Q . . . before the hearing you had told me that you've been to some kind of a psychological evaluation — is that right?
A Yeah.
Q And, what have they told you about that?
A They want to put me in a group study and I'm supposed to start that tomorrow.
Q And what kind of problems are you having?
A They said I need — they say I'm on stress but the stress will come from trying to make ends meat (sic). That's where the stress coming from but they won't — still want me go into treatment. They say I'm denied of — I am denied of depression is what they call it.
Q All right. And are you having some problems with depression?
A I was.
Q And do they give you any, any idea how long this treatment's going to last?
A No, he didn't.
Q Your in — are you taking any medications for depression now?
A No, sir. All I take is Amitriptyline. That's for sleep at night because I couldn't rest — couldn't go to sleep at night.
(Tr. 42-43). Other than plaintiffs counsel posing a hypothetical to the vocational expert which included degrees of depression ("mild, moderate, [and] severe") alleged to interfere with the ability to concentrate (Tr. 52-53), plaintiff made no other mention of depression, psychological problems, or a mental impairment, at the hearing. No other evidence was submitted in support of plaintiffs claim that her mental impairment is severe.
After carefully reviewing the record, this court finds that the pertinent evidence as cited by the ALJ and the Magistrate Judge, as well as that noted by this court, is substantial and is such that a reasonable person would accept as adequate to support the ALJ's decision that plaintiff suffers no severe mental impairment.
Accordingly, after due and proper consideration of all pleadings in this file, and a de novo determination of those portions of the Report and Recommendation to which objection is made, it is ORDERED that the Report and Recommendation of the Magistrate Judge is hereby ADOPTED, as MODIFIED above, as the opinion of this court, that the decision of the Commissioner be AFFIRMED, and that this action be DISMISSED.