Opinion
No. 01-4071-DES
January 24, 2002
MEMORANDUM AND ORDER
This matter is before the court on plaintiff's Complaint (Doc. 1), requesting a reversal of the Social Security Commissioner's denial of supplemental security income benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. The court has reviewed the administrative record and the briefs for both parties and is now prepared to rule.
I. PROCEDURAL BACKGROUND
Plaintiff filed an application for Social Security Supplemental Security Income Benefits under Title XVI of the Social Security Act on August 31, 1995. Plaintiff alleged his disability began August 15, 1995. Plaintiff's application received consideration, but the application was denied on March 13, 1996. Plaintiff applied for reconsideration on May 14, 1996, but reconsideration was denied. No further appeal was taken.
Plaintiff filed a second application for Social Security Supplemental Security Income Benefits under Title XVI of the Social Security Act on January 7, 1998. Plaintiff alleged his disability began January 1, 1992. Plaintiff's application received consideration, but the application was denied on April 10, 1998. Plaintiff appealed for reconsideration on May 28, 1998, but reconsideration was again denied. Plaintiff requested a hearing on September 9, 1998. On May 20, 1999, an administrative hearing was held before an Administrative Law Judge ("ALJ"). On June 10, 1999, the ALJ rendered a written decision unfavorable to plaintiff. Plaintiff requested a review by the Appeals Council. The Appeals Council denied plaintiff's request for review. Plaintiff thereafter filed a complaint with this court seeking an order reversing the ALJ's decision.
Plaintiff filed a third application for Social Security Supplemental Income Benefits on December 31, 1999. That application was approved on May 19, 2000, awarding benefits effective the date of the application.
II. STANDARD OF REVIEW
The court's standard of review is set forth in 42 U.S.C. § 405 (g), which provides "the findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." Substantial evidence is more than a scintilla and is that evidence a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). The court will also determine whether the Commissioner applied the correct legal standards. Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994).
During its review, however, the court will not reweigh the evidence or substitute its judgment for the Commissioner's. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). On the other hand, the court will not merely accept the Commissioner's findings. Claassen v. Heckler, 600 F. Supp. 1507, 1509 (D. Kan. 1985). Any new evidence not considered by the ALJ but submitted to the Appeals Council and considered in denying a request for review becomes part of the administrative record and will be considered by the court. O'Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994).
In order to determine whether a Social Security claimant is disabled, the Commissioner has developed a five-step sequential evaluation. See 20 C.F.R. § 404.1520. See also Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988). If the claimant fails at any of the steps where he or she bears the burden of proof, consideration of any subsequent steps is rendered unnecessary. See id. at 750 ("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."). The claimant bears the burden of proof at steps one through four.
The initial inquiry is whether the claimant is engaged in substantial gainful activity. If not, the second step requires the fact finder to determine whether the claimant has a medically severe impairment or combination of impairments. See Bowen v. Yuckert, 482 U.s. 137, 140-41 (1987). If the claimant does not have a severe impairment, step three entails determining "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." Id. at 141. If there is no such equivalency, the claimant must show at step four that the "impairment prevents the claimant from performing work he has performed in the past." Id. At the fifth step, the fact finder must determine whether the claimant has the residual functional capacity ("RFC") "to perform other work in the national economy in view of his age, education, and work experience." Id. at 142. The Commissioner bears the burden of proof at step five. See id. at 146 n. 5.
III. FACTUAL BACKGROUND
Plaintiff was born on November 9, 1962. He has two children and has been separated from their mother for many years. Plaintiff has a ninth grade education, and, while in school, plaintiff participated in special education. Plaintiff worked sporadically during his adult life, holding down part time jobs for only a few months. Plaintiff began using alcohol at the age of fourteen and began using drugs in his late teenage years. Plaintiff's drugs of choice were alcohol, cannabis, and methamphetamine.
In 1990, plaintiff was taken to Stormont Vail Hospital for an apparent suicide attempt. During his stay at the hospital, plaintiff was diagnosed with depression and alcohol and cannabis use, in remission. (R. 343). After psychological testing, it was recommended that plaintiff become involved with a drug and alcohol treatment program and undergo vocational rehabilitation. (R. 348).
In 1993, plaintiff was admitted to Topeka State Hospital after having homicidal thoughts regarding his ex-wife. The discharge summary notes that plaintiff "did not fall into the criteria of affective disorder or psychotic process. Most of his problems are alcohol related." (R. 165). It was recommended that plaintiff undergo inpatient alcohol abuse treatment program. (R. 165). It was also noted that plaintiff's Global Assessment of Functioning ("GAF") was only thirty.
In Emarthle v. Apfel, No. 98-5068, 1998 WL 892304, at *2 n. 2 (Dec. 23, 1998 10th Cir.), the Tenth Circuit explained the GAF score as follows:
A GAF score is a subjective determination which represents "the clinician's judgment of the individual's overall level of functioning." AMERICAN PSYCHIATRIC Assoc., DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV), p. 30 (4th ed. 1994). The GAF score is taken from the GAF scale which "is to be rated with respect only to psychological, social, and occupational functioning." Id. The GAF scale ranges form 100 (superior functioning) to 1 (persistent danger of severely hurting self or others, persistent inability to maintain minimal personal hygiene, or serious suicidal act with clear expectation of death. Id at 32.
In 1995, plaintiff was interviewed by Stanley Mintz, Ph.D. Plaintiff reported he was drinking heavily at the time. Plaintiff also reported being "constantly" depressed and having memory problems, but plaintiff added that he has "always had bad memory problems." (R. 242). Dr. Mintz found plaintiff appeared depressed and exhibited drug and alcohol abuse but "appears capable, from a psychological point of view, of interacting at least minimally with most co-workers and supervisors." (R. 243). Finally, Dr. Mintz found plaintiff's GAF to be 65. (R. 244).
In October of 1997, plaintiff began treatment at the Shawnee Community Mental Health Center. Upon admission, plaintiff reported deep depression, feelings of hopelessness, poor sleeping habits, homelessness and a recent relapse in drug abuse after almost two years of sobriety. Plaintiff's mental health status exam revealed he was fully oriented, of average intelligence, his recent and remote memory were in tact, and his thought process was appropriate and organized. (R. 384). It was also found that plaintiff met the criteria for major depression and dysthymia.
While plaintiff reported almost two years of sobriety, his medical records indicate he was treated for substance abuse from March 8, 1996, to April 2, 1996 at the Shawnee County Community Mental Health Center. The record also indicates plaintiff relapsed sometime in the fall of 1997. Accordingly, plaintiff was most likely sober for about eighteen months.
On March 24, 1998, plaintiff was evaluated by Dr. Carroll D. Ohlde, Ph.D. (R. 388-391). During the evaluation, plaintiff reported difficulties with mood swings, depression, and anxiety. (R. 389). Plaintiff also stated his "mood swings depend a lot on what I'm thinking about and the amount of stress I'm under like having bills, knowing I have child support payments, and realizing I have an appointment to keep." (R. 389). Dr. Ohlde observed that plaintiff "completed mental status tasks adequately and remained on track while doing so." (R. 390). Dr. Ohlde added, "Overall, his attention and concentration were adequate for simple tasks." (R. 390). In reference to plaintiff's ability to work, Dr. Ohlde noted:
Since he was attentive and able to respond to and understand questions and instructions directed to him during the interview, he would be able to understand and carry out simple instructions. His concentration, attention, and short-term memory abilities were demonstrated to range from adequate to fair (immediate auditory memory). He remained on track while responding to mental status tasks and was persistent in his efforts to complete them. Relating adequately to the examiner, he could likely also relate adequately to supportive co-workers/supervisors. Overall he could probably sustain concentration over the course of a workday and meet average performance standards with at least concrete, unskilled work if [he] maintains his sobriety and support for sobriety maintenance.
(R. 391). Dr. Ohlde also noted that plaintiff had a GAF of 60.
In June of 1998, plaintiff was evaluated by Ken Okano, M.D., his treating physician at the Shawnee Community Mental Health Center. Dr. Okano reported plaintiff's "understanding and memory; sustained concentration and persistence, social interaction, adaptation, etc." may be "mildly to moderately impaired due to depression." (R. 395). Dr. Okano added that "it is unknown how much his job performance can be hindered by this impairment as he is phobic about failure if getting job." (R. 395). At a later date, February 24, 1999, Dr. Okano found plaintiff may have moderate restriction on activities of daily living, moderate difficulties in maintaining social functioning, seldom or often may have deficiencies in concentration, persistence or pace resulting in failure to complete tasks in a timely manner and it was unknown whether plaintiff had episodes of deterioration or decompensation. (R. 441). Dr. Okano rated plaintiff's GAF as 55. (R. 440).
Finally, records from the Shawnee Community Mental Health Center taken during the spring, summer, and fall of 1998, indicate plaintiff was working with a case manager, had an apartment, was taking GED classes, and had set goals for permanent job placement.
IV. ALJ's DECISION
In his decision, the ALJ made the following findings:
1. The claimant has engaged in substantial gainful activity since the alleged onset date of disability. He has worked at substantial gainful activity levels performing the jobs of welder and dishwasher.
2. The medical evidence establishes that the claimant has bipolar disorder, possible PTSD and alcoholism and substance abuse disorder in remission for at least one year, impairments which are severe. Prior to March, 1998, the claimant's mental impairments met the severity of the listed impairment set forth in section 12.09 for substance abuse as analyzed under the section 12.04 affective disorders found in Appendix 1, Subpart P, Regulations No. 4. However, a technical denial of disability is applicable because drug addiction and alcoholism are contributing factors material to that determination of disability.
3. The claimant's statements concerning his impairments and their impact on his ability to work after March, 1998 are credible only to the extent they indicate an inability to engage in activity exceeding the residual functional capacity set forth below.
4. The claimant has no physically-based restrictions. Since March, 1998, he has a mental residual functional capacity imposing moderate but not marked limitation in the ability to carry out detailed instructions; to maintain attention and concentration for extended periods; to complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and frequency of rest periods; and to accept instructions and respond to criticism appropriately from supervisors.
5. The claimant's past relevant work as a welder and dishwasher, as generally performed in the national economy, do not require the level of performance of work functions precluded by his mental impairments.
6. The claimant's impairments do not prevent him, since March, 1998, from performing his past relevant work which is unskilled, repetitive, routine and relatively non-stressful. The claimant is also shown capable of performing other work existing in significant numbers in the national economy given his residual functional capacity and his vocational profile (age 36, 9th grade education, and unskilled work background). Such jobs include farm worker, gas-oil servicer and kitchen helper, all unskilled jobs.
7. The claimant has not been under a disability, as defined in the Social Security Act, at any time through the date of this decision.
(R. 27-28)
In summary, the ALJ found that prior to March of 1998, plaintiff's condition met the severity level as listed in Appendix 1 at section 12.04. Plaintiff was not entitled to benefits for the time period preceding March 1998, however, because his alcohol and drug addiction was a contributing, material factor to the disability determination. For the time period after March 1998, the ALJ found plaintiff was not only able to perform his past relevant work experience, he was also able to perform other work existing in the national economy.
V. DISCUSSION
A. ALJ's Findings Prior to March 1998
Plaintiff argues the ALJ erred in finding plaintiff was not entitled to benefits from the alleged onset date until March 1998. The ALJ found that prior to March 1998, plaintiff's symptoms were so severe as to meet the listing criteria for affective disorder in Appendix 1 at section 12.04 analyzed in conjunction with section 12.09. Although plaintiff's condition met the listing requirements, the ALJ found plaintiff was not entitled to benefits because the record reflects drug addiction and alcoholism (DAA) dominated plaintiff's overall condition prior to March 1998.
The Contract With America Advancement Act of 1996, Pul. L. No. 104-121, 110 Stat. 847-57 (1996) (amending 42 U.S.C. § 423 (d)(2) and 1382(c)), eliminated alcoholism and/or drug addiction as a basis for obtaining disability insurance benefits and supplemental security income benefits. Section 105(b)(1) of the Act provides, in pertinent part, that "[a]n individual shall not be considered to be disabled for purposes of this title if alcoholism or drug addiction would (but for this paragraph) be a contributing factor to the Commissioner's determination that the individual is disabled." 42 U.S.C. § 1382c (a)(3)(J). The regulations implementing the new code provisions provide that the ALJ is to determine whether an applicants "drug addiction or alcoholism is a contributing factor material to the determination of disability." 20 C.F.R. § 416.935 (a). See also Jackson v. Apfel, 162 F.3d 533 (10th Cir. 1998).
The court finds the record includes "substantial evidence" to support the ALJ's decision on this matter. Although there was a brief period in which plaintiff's drug addiction and alcohol abuse was in remission, the record overwhelming indicates that prior to March 1998 plaintiff's drug and alcohol abuse was clearly the dominating factor in his condition. The following excerpts from the record support the ALJ's conclusion:
1. 1990 Stormont Vail hospital records from plaintiff's suicide attempt state, "The patient is very likely depressed. That may be related to withdrawal [from alcohol and drugs]. He has a long history of substance abuse." (R. 347).
2. A 1993 letter written by Estanislao Rimano, M.D. states:
Based on my clinical assessment, the patient does not fall in the criteria of Major Depression or psychotic disorder. He does not verbalize depressed mood, suicidal ideation, loss of interest in usual pleasurable activities, tiredness or fatigue, worthlessness, difficulty of thinking, auditory hallucination or thought disorder. Alcohol abuse or dependence possibly is the primary problem.
(R. 169)
3. 1993 records from Topeka State Hospital state "patient does not fall to the criteria of any affective disorder or psychotic process. Most of his problems are alcohol related." (R. 165)
4. Dr. Mintz's 1995 report states:
Mr. Gregory Wade is a pleasant gentleman who appears depressed and who exhibits alcohol and drug abuse. He appears capable, from a psychological point of view, of interacting at least minimally with most co-workers and supervisors. He appears able to understand simple and intermediate instructions. His concentration capacity may be diminished, particularly when he is drinking. He does not appear capable of handling his own funds mainly due to a history of substance abuse.
(R. 243)
The ALJ further substantiated his opinion by finding plaintiff's sobriety coincided with an improvement in his condition. For example, records from the Shawnee Community Mental Health Center's case managers working with plaintiff contain the following notes:
1) March 4, 1998 — "He has a lot of good things going on — GED school at Lets Help, good relationship with g friend [sic], happy with housing." (R. 378)
2) March 5, 1998 — "He's been back to school to get GED . . He states he's been clean . . . . His depression is stable, but his mind races." (R. 377)
3) April 6, 1998 — "Cl. [plaintiff] was very talkative . . . Cl. also wants to find a job." (R. 375)
4) April 20, 1998 — "Client instantly told this CM [case manager] that Cl. had a slip over the weekend. Cl. smoked some crack at his parents house . . . . He is ready to go to work." (R. 374).
5) September 3, 1998 — "His depressive feeling is better. He has difficulty sleeping."
6) September 14, 1998 — "Client found job as a janitor in Drs. offices. Client appears to like his job. Except for they are going to take $180.00 monthly for child support, which client wants to pay, but since he got a job, SRS took medical card and food stamps away. Client only works 17 hours a week and makes $5.25 a hour. Client feels he doesn't really need a CM anymore."
7) October, 19, 1998 — "Continues to work and do well. Has mood swings and sometimes crisis but is able to resolve these . . . . Is not interested in medication." (R. 433)
8) October 8, 1998 — "Is feeling very good — works part time and pays child support . . . . Would like to work full time but is afraid he would still have no money left after rent and child support." (R. 433)
Other evidence of plaintiff's improvement is found in a mental impairment questionnaire taken February 24, 1999, by Dr. Okano, plaintiff's treating physician at the Shawnee Community Mental Health Center. Dr. Okano found that plaintiff had "some depressive feelings, rather poor frustration tolerance and anger control." (R. 440). Plaintiff was not prescribed any medication and it was found plaintiff's condition was not expected to last more than twelve months. Further, Dr. Okano found plaintiff did not have a low I.Q. or reduced intellectual functioning, and plaintiff's GAF was rated at 55. Finally, Dr. Okano estimated plaintiff had moderate restriction on activities of daily living; moderate difficulties in maintaining social functioning; seldom or often had deficiencies in concentration, persistence, or pace; and it was unknown whether plaintiff had episodes of deterioration or decompensation. (R. 441). The doctor also noted that plaintiff "doesn't recognize his need for medication or psychiatric evaluation . . . ." (R. 441).
Based on an evaluation of plaintiff's medical records, the court finds no err in the ALJ's decision concerning DAA as a material contributing factor to plaintiff's illness prior to March of 1998.
B. ALJ's Disability Finding After March of 1998
As stated previously, in evaluating the fourth step of the sequential analysis, the ALJ found that after March of 1998, plaintiff could perform his past relevant work experience as a welder or a dishwasher. The ALJ also proceeded to the fifth step and found even if plaintiff is unable to perform his past relevant work, he would still be able to perform other jobs existing in significant numbers in the national economy.
Plaintiff has multiple objections to the ALJ's findings in steps four and five. The court will take each objection in turn.
1. Step Four
At step four, the ALJ determined although plaintiff suffered from an impairment, he was not prevented from performing past relevant work as a welder or a dishwasher. In making this determination, the ALJ relied on the testimony of a vocational expert, the testimony of plaintiff, and plaintiff's residual functional capacity ("RFC"). In evaluating plaintiff's RFC, the ALJ found plaintiff had "moderate limitation in the ability to carry out detailed instructions; to maintain attention and concentration for extended period; to complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and frequency of rest periods; and to accept instructions and respond to criticism appropriately from supervisors." (R. 26). Additionally, the ALJ found plaintiff's statements concerning the limitations of his impairments after March 1998 were credible only to the extent they indicate an inability to engage in activity exceeding the RFC as found by the ALJ.
Plaintiff's first contention is there was not substantial evidence indicating dishwashing and welding were past "relevant" work experience. Plaintiff argues the record of disability reports do not conclude plaintiff was actually a welder. In a disability report dated January of 1998, plaintiff wrote that he had worked at Seymour, a welding company in 1995. (R. 308). In a disability report filled out in September of 1995 plaintiff wrote he worked at Seymour as a sander. (R. 109). Additionally, plaintiff argues there is not substantial evidence to establish his work as a dishwasher constituted a substantial gainful activity because while plaintiff indicated he worked as a dishwasher in 1993 and 1994, his earnings record indicate he did not earn any wages in 1993 and did not work in a restaurant in 1994. (R. 103).
To be considered past relevant work experience, a plaintiff's former occupation must "'rise to the level of substantial gainful activity.'" Newman v. Chater, No. 95-5198, 1996 WL 375359, at *1 (10th Cir. July 5, 1996) (quoting Lauer v. Bowen, 818 F.2d 636, 639 (7th Cir. 1987)). In making this determination, the ALJ considers "whether the work was performed within the last fifteen years, lasted long enough for the claimant to learn to do it, and was substantial gainful activity." Newman, 1996 WL 375359, at *1 (citing 20 C.F.R. § 404.1565 (a); 416.965(a)). Additionally, the level of earnings provided by a particular job can be determinative of whether the job constituted substantial gainful activity. Earnings in excess of $300 per month for the years between 1980 and 1989 or earnings in excess of $500 per month between the years of 1990 and 1999 presumes a social security claimant engaged in substantial gainful activity. See 20 C.F.R. § 416.974 (b) (2)(i). A job providing wages averaging less than $190 per month between 1980 and 1989 or $300 per month between 1990 and 2000 is presumed to be a non-substantial gainful activity. See 20 C.F.R. § 416.974 (b)(3).
Plaintiff indicated he worked at Seymour for four hours per day, five days a week at a wage of $5.00 per hour. Based on the information provided by plaintiff he would have earned approximately $400 per month. A wage of $400 per month is below the presumptive level of a substantial gainful activity as found in 20 C.F.R. § 416.974 (b)(2)(i) but above the presumptive non-substantial gainful activity found in 20 C.F.R. § 416.974 (b)(3). Where the claimant's earnings fall between the two categories, other information must be considered, including whether the work was "comparable to that of unimpaired people in the community who are doing the same or similar occupations as their means of livelihood, taking into account the time, energy, skill, and responsibility involved in the work", and whether plaintiff's work was worth the amount listed as substantial gainful activity. 20 C.F.R. § 416.974 (b)(6). While the ALJ did not engage in this analysis, the defendant argues the ALJ properly relied on the vocational expert's ("VE") opinion indicating plaintiff's work as a welder was a substantial gainful activity. It is unnecessary for the court to make a finding on this issue because even assuming plaintiff met his burden at step four-that he is unable to perform past relevant work-the ALJ's decision can be affirmed based on his findings at step five.
2. Step Five
Assuming plaintiff met his burden at step four, the burden shifts to the defendant in step five to prove plaintiff is able to perform other work existing in significant numbers in the national economy. The ALJ found plaintiff would be able to perform the jobs of farm worker, gas-oil servicer and kitchen helper, all jobs that exist in significant numbers in the national economy. (R. 27-28).
Plaintiff contends the ALJ erred in making this finding in two respects. First, plaintiff claims there was insufficient evidence to support the ALJ's finding. Second, plaintiff claims the hypothetical questions asked of the VE did not properly recite the findings made by the ALJ in the Psychiatric Review Technique ("PRT") form.
a. Substantial Evidence
Plaintiff claims there was insufficient evidence to show plaintiff could perform work existing in significant numbers in the national economy because the ALJ failed to question the VE regarding plaintiff's ability to perform such jobs. Instead, according to plaintiff, the ALJ based his determination on statements made by "lower level consultants" in the social security administration.
While the ALJ's questions to the VE focused mostly on whether plaintiff could perform past relevant work, the ALJ did ask the VE whether a person of plaintiff's age and educational level and with his limitations as indicated by his RFC, could perform concrete, unskilled work. (R. 74). The VE answered in the affirmative. Additionally, John Oyler and Tom Huckins, employees at the Kansas Disability Determination Service ("KDDS"), opined in reports dated April 9, 1998, and July 7, 1998, respectively, that plaintiff could perform unskilled occupations such as commercial cleaner, groundskeeper, farm worker, gas and oil servicer or kitchen helper. (R. 333 and 334). Finally, the ALJ based his finding on plaintiff's RFC as required by the Code of Federal Regulations. See 20 C.F.R. § 416.961 ("[I]f your [RFC] is not enough to enable you to do any of your previous work, we must still decide if you can do any other work. To do this, we consider your [RFC], and your age, education, and work experience. Any work (jobs) that you can do must exist in significant numbers in the national economy . . . .").
As stated previously, the ALJ's determination of plaintiff's RFC included a finding of "moderate limitation in the ability to carry out detailed instructions; to maintain attention and concentration for extended period; to complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and frequency of rest periods; and to accept instructions and respond to criticism appropriately from supervisors." (R. 26).
The VE's response to the ALJ's question, the medical records establishing plaintiff's RFC, and the opinions of lower level consultants at the KDDS provide substantial evidence for the ALJ's conclusion that plaintiff could perform other jobs in the national economy.
b. Hypothetical Question
Plaintiff contends the ALJ's hypothetical question presented to the VE was deficient. Plaintiff's primary argument is that the ALJ did not use the precise language found in the PRT form. Instead, the ALJ directed the VE to exhibits 8F and 10F, medical records which formulate opinions regarding plaintiffs RFC.
In posing a hypothetical question to a VE, an ALJ is not bound only to the PRT form. Instead, the ALJ is only required to pose hypothetical questions that adequately reflect the nature and severity of the plaintiff's impairments. Arroyo v. Apfel, No. 99-4060, 1999 WL 1127656, at *2 (Dec. 9, 1999 10th Cir.) (citing Gay v. Sullivan, 986 F.2d 1336, 1341 (10th Cir. 1993)). The information contained in the exhibits presented to the VE adequately reflected the nature and severity of plaintiff's impairments. The exhibits indicate plaintiff is moderately limited in his ability to maintain attention and concentration for extended periods, moderately limited in his ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, moderately limited in his ability to accept instructions and respond appropriately to criticism from supervisors, and moderately limited in his ability to carry out detailed instructions. (R. 407-08, 423-24). These evaluations adequately mirror the RFC as determined by the ALJ. Thus, the ALJ did not err in using these limitations as a basis for the hypothetical question.
C. ALJ's Credibility Finding
In determining a social security claimant's RFC, the ALJ evaluates both subjective and objective evidence. In evaluating the subjective evidence, i.e., plaintiff's testimony concerning his condition, the ALJ stated in his written decision: "The claimant has impairments that could reasonably be expected to produce some of the symptoms alleged, but the claimant's complaints suggest a greater severity of impairment than can be shown by the objective medical evidence." (R. 24). Additionally, the ALJ also stated, "[b]ased on the record since March, 1998, the claimant is found credible only to the extent that his subjective statements regarding his impairments and functional limitations indicate an inability to engage in activity exceeding the limitations set forth in the residual functional capacity determination below." (R. 25). Plaintiff claims the ALJ's credibility determination was not supported by the record. After extensive review of the record, the court disagrees.
As the ALJ stated in his written decision, the record reflects plaintiff's symptoms are confined to "lack of sleep, an inability to focus for more than 2 hours and racing thoughts." (R. 25). The ALJ found such symptoms would not result in the level of severity alleged by plaintiff. In addition to plaintiff's testimony, the ALJ made the credibility determination by considering the following factors as required by 20 C.F.R. § 416.929: 1) plaintiff's daily activities; 2) the nature, location, onset, duration, frequency, radiation, and intensity of symptoms (e.g., movement, activity, environmental conditions); 4) type, dosage, effectiveness, and adverse side-effects of medication symptoms; 5) treatment, other than medication, that the plaintiff receives or has received for relief of symptoms; 6) any measures plaintiff uses or has used to relieve symptoms; and 7) other factors concerning the claimant's functional limitations and restrictions due to symptoms. See 20 C.F.R. § 416.929 (c)(3) (i-vii). The ALJ adequately evaluated each of these factors in making his credibility determination. See (R. 24-25) (ALJ's analysis of each factor listed above) Furthermore, the court should defer to the ALJ because the ALJ is optimally positioned to observe and assess witness credibility. Casias v. Secretary of Health and Human Servs., 933 F.2d 799, 801 (10th Cir. 1991). Finally, the medical records, including the reports of Drs. Ohlde and Okano are consistent with the ALJ's credibility determination. (R. 388 and 395).
VI. CONCLUSION
After considering the record before it, the court finds the opinion of the ALJ should be affirmed. The court finds even if plaintiff's job as a welder should not have been considered past relevant work experience, the ALJ properly found plaintiff could perform other jobs as they existed in the national economy. Additionally, the court finds the ALJ's findings concerning plaintiff's credibility were supported by substantial evidence.
IT IS THEREFORE BY THIS COURT ORDERED that the decision of the Commissioner is hereby affirmed.
Dated this day of January, 2002, at Topeka, Kansas.