Opinion
Case No. 98-4138-RDR.
May 23, 2001
MEMORANDUM AND ORDER
This is an action to review a final decision by the Commissioner of Social Security regarding plaintiff's entitlement to disability insurance benefits under the Social Security Act. The parties have briefed the relevant issues and the court is now prepared to rule.
I.
Plaintiff filed an application for disability benefits on November 15, 1993. She alleged that her disability began on August 14, 1992. Plaintiff indicated that she was disabled due to major depression and arthralgias. Plaintiff's application was denied initially and on reconsideration by the Social Security Administration (SSA). Upon plaintiff's request, a hearing was conducted by an administrative law judge (ALJ). On January 17, 1997, the ALJ determined in a written opinion that plaintiff was not disabled prior to June 30, 1995, the last date of plaintiff's insured status. On July 11, 1998, the Appeals Council of the SSA denied plaintiff's request for review. Thus, the decision of the ALJ stands as the final decision of the Commissioner.
II.
This court reviews the Commissioner's decision to determine whether the records contain substantial evidence to support the findings, and to determine whether the correct legal standards were applied. Castellano v. Secretary of Health Human Services, 26 F.3d 1027, 1028 (10th Cir. 1994). Substantial evidence is "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In reviewing the Commissioner's decision, the court cannot weigh the evidence or substitute our discretion for that of the Commissioner, but we have the duty to carefully consider the entire record and make our determination on the record as a whole. Dollar v. Bowen, 821 F.2d 530, 532 (10th Cir. 1987).
The Commissioner has established a five-step sequential evaluation process to determine if a claimant is disabled. Reyes v. Bowen, 845 F.2d 242, 243 (10th Cir. 1988). If a claimant is determined to be disabled or not disabled at any step, the evaluation process ends there. Sorenson v. Bowen, 888 F.2d 706, 710 (10th Cir. 1989). The burden of proof is on the claimant through step four; then it shifts to the Commissioner. Id.
III.
Plaintiff was born on January 10, 1949. She is a high school graduate and she has attended one year of college. She has previously worked as a courtesy clerk/grocery sacker and a house cleaner. She has not worked since August 14, 1992.
The medical records are rather extensive. There are entries from 1992 to 1996.
On January 29, 1992, plaintiff was seen at the Lawrence Family Practice Center. She complained of chronic fatigue, shortness of breath, sore throat, back pain and occasional chest pain.
On September 14, 1992, plaintiff was examined by Robert F. Brown, D.D.S. Plaintiff complained of pain on the right side of her face, popping and clicking noises in her right temporomandibular joint (TMJ), and pain on right and left side of her neck. Dr. Brown concluded as follows:
It is my opinion that Anita Wise suffers from an orthopedic condition in the temporomandibular joints manifested by skeletal mal-alignment of the mandible to the imbalance of the muscles of mastication and associated musculature of the head and neck.
He suggested orthopedic and neuromuscular treatment.
On October 12, 1992, plaintiff was seen by M. M. Hostetter, M.D. Plaintiff complained of heavy bleeding during an extended period of menstruation. She also reported some cramping. Dr. Hostetter assessed menorrhagia and prescribed some medication.
On December 1, 1992, Keith A. White, D.C., wrote that plaintiff had been a patient of his since 1984. He stated that her major complaint had been pain in the sacroiliac joints. He noted that plaintiff's condition had worsened in the last few months. He recommended that plaintiff not work due to the aggravation of her sacroiliac joints.
On December 19, 1992, plaintiff was seen by Henry Kanarek, M.D., for a consultative physical examination. Plaintiff reported a history of low back pain and TMJ dysfunction. She also noted excessive menstrual periods. She stated that her back pain makes it hard for her to bend, lift or stoop. She indicated that she could occasionally lift twenty pounds. Dr. Kanarek found a full range of motion, except in the ventral plane of the lumbar spine. He also noted pain in the lumbar spine. Pain was also present upon palpation of both TM joints, but he noted that this did not affect speech or communication. He found that plaintiff had no difficulty in getting on and off the examining table, with heel and toe walking, squatting or rising from a sitting position, and hopping. He concluded that plaintiff suffered from arthralgias, a history of TMJ, and hypermenorrhea. X-rays of the lumbar spine and left hip showed no abnormalities.
On March 16, 1993, plaintiff underwent a consultative psychological examination by John V. Spiridigliozzi, Ph.D. Plaintiff told Dr. Spiridigliozzi that she injured her back from a fall as a child and again in a car accident. She began to experience more back pain as a result of her part-time housecleaning business. Her work as a courtesy clerk made her pain worse. A chiropractor treated her once a week for several years. She experienced a general overall aching pain that radiated down her legs causing her right foot to fall asleep. She also described symptoms of a very low energy level which she felt was chronic fatigue syndrome. She noted that she napped every day because her body felt exhausted. She also reported decreased vision, pulling in her neck when she exercised, chest pain and tightness, and difficult menstrual cycles. She denied any history of psychiatric hospitalization and stated that in terms of psychotherapy she had only undergone marriage counseling. Dr. Spiridigliozzi noted that plaintiff presented with a "fairly bright" mood and appropriate effect. She reported no feelings of hopelessness and stated that she liked and wanted to be around people. She stated that she only felt depressed pre- and post-menstruation. She reported that she was frustrated with her pain and stated that her mood was "somewhat" dependent upon her physical state.
Dr. Spiridigliozzi noted that plaintiff was capable of abstract reasoning, her content of thought was within normal limits, and her stream of thought was sequential. She denied any difficulties with concentration. Her global level of intellectual functioning was within average range. Dr. Spiridigliozzi gave no diagnosis. He made the following assessment of plaintiff's ability to work:
[T]he problems with fatigue that are presented by Ms. Wise are of some concern. She states that she does not know when the fatigue will hit, and furthermore the pain she experiences limits what she can do. She has no idea what type of work she can do, and the fatigue she experiences is the primary limitation to her working. She states that the fatigue is worse than the back pain or the female problems that she cited. There appear to be no psychological problems directly related to these limitations beyond the fatigue reported by Ms. Wise. It is believed that she can handle funds in her own best interests. However, further personality assessment would be useful to determine whether or not a personality disorder exists here.
On April 15, 1993, plaintiff was examined by Carolyn Johnson, M.D., for evaluation of heavy vaginal bleeding and pelvic pain. A pelvic ultrasound revealed a uterine fibroid of normal appearance. Blood tests revealed that plaintiff was mildly to moderately anemic.
On August 4, 1993, plaintiff was seen by Jeanne Frieman, Ph.D., for a consultative psychological examination. Plaintiff reported that she cleaned house, did the laundry at a friend's home, shopped for groceries, made organic juices to cleanse her system, read, visited her father, ran errands, went to prayer meetings two nights each week and on Sundays, and did religious visiting on Saturday mornings. Dr. Frieman noted that plaintiff was dysphoric, sad and tearful. She had trouble concentrating and her thoughts seemed slowed down and mixed up. Dr. Frieman noted that plaintiff achieved a full scale IQ of 109 on the Wechsler Adult Intelligence-Revised (WAIS-R), representing average to above average intelligence. On the Wechsler Memory Scale, plaintiff's verbal memory, general memory, and delayed recall were one standard deviation below average and visual memory was "a little reduced." Plaintiff's performance on the Wide Range Achievement Test showed reading above the twelfth grade level and arithmetic at the beginning of the eleventh grade level. Dr. Frieman's impression was above average intelligence with organic brain syndrome, reduced verbal memory, and severe depression with psychotic features. Dr. Frieman summarized plaintiff's circumstances as follows:
Mrs. Wise is a woman of above average intelligence. She has not been gainfully employed for over 10 years. She reports depression beginning at age 13. The apparent disorganization of her thoughts and memory problems render her unable to use her abilities in a productive manner. She shows depression with psychotic features, bizarre thoughts of illness, and unusual beliefs. She also shows verbal and delayed memory deficits. Mrs. Wise also complains of chronic pain that may be due to an as yet undiagnosed physical condition. It is not clear that she has been evaluated for chronic fatigue syndrome or Lime's disease. Mrs. Wise may not be able to take care of her home without help. Mrs. Wise should be considered at risk for suicide. She is competent in arithmetic but may need supervision with her finances because of her emotional condition.
On August 6, 1993, Dr. Frieman opined that plaintiff had poor to no ability to relate to co-workers; deal with the public; use judgment with the public; interact with supervisors; deal with work stresses; function independently; understand, remember, and carry out complex or detailed job instructions; behave in an emotionally stable manner; relate predictably in social situations; and demonstrate reliability. She had a fair ability to follow work rules; to maintain attention and concentration; to understand, remember, and carry out simple job instructions; and to maintain personal appearance.
On August 23, 1993, plaintiff underwent a consultative psychiatric examination by Steve E. Shelton, M.D. Plaintiff stated she had depression with decreased appetite and lack of sleep. She reported that her depression came on every time she worked, yet she could not think of a reason why she was depressed. Her depression "immobilizes" her. Plaintiff stated she was on no medication for depression and had seen Carolyn Johnson, a psychologist, for five "talking therapy" sessions. Plaintiff took ibuprofen for pain and reported that she was a Jehovah's Witness and did not like medical treatment. Dr. Shelton noted that plaintiff cried at times during the interview. Her memory was "fairly" poor for dates and historical data, and her thinking tended to be a little scattered and disorganized. Her short-term memory was poor and she had trouble with concentration and attention. Dr. Shelton's impression was major depression with psychosis, organic personality disorder, and possible mild retardation. He made the following assessment: "The patient is not able to function well due to her depression." He opined that medication could probably help her, but that she would likely refuse it because of her religion.
On October 8, 1993, Dr. Shelton opined that plaintiff had poor to no ability to follow work rules; relate to co-workers; deal with the public; use judgment with the public; interact with supervisors; deal with work stresses; function independently; understand, remember, and carry out complex or detailed job instructions; behave in an emotionally stable manner; relate predictably in social situations; and demonstrate reliability. She had a fair ability to maintain attention and concentration; understand, remember, and carry out simple job instructions; and maintain personal appearance.
On December 7, 1993, Diane Brandmiller, M.A., stated that plaintiff had been in therapy at the University of Kansas Psychological Clinic since August 30, 1993. Plaintiff reported that she sought treatment for depression which she had had "off and on since junior high." Plaintiff thought her emotional state was related to unresolved feelings about her mother's death and dissatisfaction concerning her marriage. Ms. Brandmiller noted that plaintiff's medical records reflected that plaintiff experienced depressive symptoms such as fatigue, worry, decreased appetite, lack of interest in daily activities, decreased energy and crying easily. She noted that plaintiff was crying less now in therapy sessions than she had at the beginning. Plaintiff indicated that she was feeling better in the last month. Plaintiff was diagnosed with major depression, recurrent, moderate. She was assigned a Global Assessment of Functioning (GAF) rating of 55 with her highest GAF in the last five years at 55. GAF is a standard measurement of an individual's overall functioning level "with respect only to psychological, social, and occupational functioning." American Psychiatric Ass'n. Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). A GAF rating of 51 to 60 signals the existence of moderate difficulty in social or occupational functioning. Id.
On January 8, 1994, plaintiff went to Dr. Kanarek for another consultative physical examination. Plaintiff reported a history of low back pain with multiple joint pain as well as bilateral TMJ discomfort. She stated she had difficulty bending, stooping, lifting and carrying. She indicated that she could sit for two hours, walk one block, and occasionally lift twenty pounds. Plaintiff brought with her a prescription for an antidepressant. An examination of the musculoskeletal system showed a "full" range of motion of all joints except flexion of the dorsolumbar spine which was at seventy-five degrees. Straight leg raising was ninety degrees bilaterally, without paraspinus muscle spasm. Plaintiff had diminished sensation in the right foot. She had mild difficulty with heel and toe walking, squatting and rising from a seated position, and hopping. Dr. Kanarek's conclusion was arthralgias.
On January 24, 1994, plaintiff went to the emergency room with complaints of dull chest pain, difficulty breathing, and pain in the left arm. Plaintiff stated that she had chest pain on and off for several years, but had never sought treatment. Plaintiff was prescribed various antacids.
On April 24, 1994, Ms. Brandmiller reported on plaintiff's continued therapy sessions. Ms. Brandmiller noted that plaintiff continued to work on her goal of exploring her feelings regarding her mother's death and to address her dissatisfaction with her relationship with her husband. Plaintiff reported that she had begun an exercise program consisting of light weights and low impact aerobics in February 1994. She stated that the program was helping but made it more difficult to carry out other activities due to exhaustion. Ms. Brandmiller noted that plaintiff continued to cry at least once during the sessions and complained of depressive symptoms of fatigue, worry, and lack of interest in daily activities. Ms. Brandmiller stated that a previous diagnosis of recurrent, moderate major depression continued to be valid.
On July 12, 1994, Ms. Brandmiller opined that plaintiff had a poor ability to understand, remember, and carry out complex job instructions; behave in an emotionally stable manner; and relate predictably in social situations and/or respond appropriately to changes in routine. She had a fair ability to respond appropriately to co-workers; deal with the public; use judgment with the public; deal with work stress; maintain attention and concentration; understand, remember, and carry out detailed job instructions; and demonstrate reliability. Plaintiff had a good ability to follow work rules; function independently; understand, remember, and carry out simple job instructions; and maintain personal appearance. She had a very good ability to respond appropriately to supervision. Ms. Brandmiller further suggested that plaintiff's emotional problems surfaced in September 1992, when she quit her last job because of emotional problems including crying at work, fatigue and inability to deal with the public. Plaintiff reported that she tried an antidepressant in October and November 1993, but discontinued the medication because of a rash. She was hesitant to resume medication until she tried psychotherapy alone.
On December 9, 1994, plaintiff's new therapist, Lisa Temple, M.A., noted that plaintiff continued to deal with her attempt to find meaning in life, her mother's death, and her relationship with her father and her husband. Ms. Temple's diagnosis was moderate, recurrent, major depression.
On January 26, 1995, plaintiff was seen by Sharon L. McKinney, D.O., for a consultative physical examination. Plaintiff complained of pain in her jaws, back and hip. She also had numbness and tingling in her right forearm, hand, calf and foot. She took ibuprofen, aspirin and antacids. She reported low energy and after about one-half day of work, she needed to lie down. She also reported phobias that kept her from being able to function. On physical examination, plaintiff could walk "okay," strength in her lower back was "okay," and her range of motion was "adequate." Her lower extremity range of motion was "okay" except for tight external rotators in the hip. Sensation was within normal limits. Range of motion in the neck was "adequate." Upper extremity range of motion was not full as she had an abnormality on the distal end of her clavicles, more pronounced on the right than the left. Sensation was okay. Plaintiff could grip fifty pounds on the right and fifty-three pounds on the left.
Dr. McKinney noted that plaintiff did not appear to cope well with life in general or with her body pain in particular. Dr. McKinney opined that plaintiff may have chronic fatigue syndrome. However, she stated that on physical grounds alone, plaintiff was not limited. Dr. McKinney opined that plaintiff could perform sedentary activity. Plaintiff could frequently carry up to ten pounds, and stand or walk for six hours in an eight-hour work day. She could sit for six to eight hours, provided that she could frequently change positions. She could not do any repeated pulling or pushing. She could climb ramps and stairs, but not ropes, ladders or scaffolds. She could occasionally balance, kneel and crouch, rarely stoop, and never crawl. She could reach overhead or work at shoulder height. She could handle or finger for long periods of time and should avoid extreme cold and heat, high noise, fumes, odors, dust, gases, poor ventilation and vibration. Dr. McKinney found that plaintiff's "biggest disability" was in "cognitive functioning." She noted that plaintiff's difficulty with depression and concentration would keep her from functioning in the work place. Dr. McKinney found that plaintiff was "very limited" in her ability to work.
On August 21, 1995, Ms. Temple terminated plaintiff's therapy sessions. She noted that the termination was a mutual agreement. She noted that plaintiff's current level of functioning was improved from when she began treatment two years ago. She suggested that plaintiff contact her if she wanted to continue therapy in the future. Ms. Temple's diagnosis at termination was major depression, moderate, recurrent. Plaintiff did return to therapy in early 1996 for additional treatment concerning her depression. Therapy sessions during 1996 continued to show that plaintiff remained depressed.
On August 15, 1996, plaintiff was seen by Harold M. Voth, M.D. for a consultative psychological examination. Dr. Voth found that plaintiff was alert and animated. He noted that she gave a clear account of her life situation and mental condition. He found no evidence of psychosis or any organic brain syndrome. He determined that her main functional disorder was a phobic condition that limited her activities. Dr. Voth provided the following diagnosis:
This woman is moderately phobic and has a low grade suspiciousness which I do not believe could be defined as an actual paranoid delusion. I do not see any evidence of depression at this time, although she complains of being fatigued rather readily. I do believe that Mrs. Wise can maintain adequate relationships with people to some extent. She has some friends. She has a satisfactory marriage. This woman can certainly understand simple tasks. She can sustain her concentration for an 8-hour day if the tasks were not to (sic) demanding. And I do believe that she could maintain a work schedule, again if the tasks confronting her where (sic) not to (sic) severe. Mrs. Wise can manage her own funds.
Dr. Voth found that plaintiff had a good ability to follow work rules; relate to co-workers; use judgment; deal with work stresses; function independently; maintain attention and concentration; understand, remember and carry out detailed, but not complex job instructions; and behave in an emotionally stable manner. He noted that she had a fair ability to understand, remember and carry out complex instructions; and relate predictably in social situations. He determined that she had an unlimited ability to understand, remember and carry out simple job instructions. Finally, he found that plaintiff had a poor ability to deal with the public and demonstrate reliability.
At the hearing before the ALJ, plaintiff testified that she was forty-seven years old and had been disabled since August 1992. She indicated that at that time she had an emotional and physical breakdown. She indicated that her physical problems included severe menstrual problems, back pain, TMJ problems and joint pain. She stated that she had been diagnosed with fibromyalgia, but that she was not currently under a doctor's care. She did note that she was seeing a counselor. She indicated that she suffers from depression. She said that she did not know of any work that she could perform on a consistent basis. She is able to do laundry, iron, cook and grocery shop when she feels well. She said that she has about one good week a month. She stated that her husband helped with cleaning the house and cooking. She also attends religious meetings. She is able to drive an automobile. She stated that she has a problem being around strangers and dealing with stressful and unexpected situations.
George Chance, M.D., also testified at the hearing. Dr. Chance is a psychologist who appeared at the hearing as a medical advisor. Dr. Chance reviewed plaintiff's medical record and testified that there was evidence of a specific learning disability and evidence at times of a moderate degree of affective disorder or depression. He determined that plaintiff did not have a listed impairment. Moreover, he found that plaintiff's learning disorder would not preclude her from working. He stated that plaintiff's depression should be characterized as moderate because it would change over the course of time. He noted that, at times, plaintiff would be doing poorly but, on other occasions, she would respond to treatment.
Finally, Karen Sherwood, a vocational expert, testified at the hearing. She identified plaintiff's prior employment as a grocery sacker and house cleaner as unskilled, light work. In response to a hypothetical question posed by the ALJ, Ms. Sherwood testified that plaintiff could perform her past relevant work. However, she indicated that plaintiff would be unemployable if plaintiff's depression caused her to have difficulties concentrating on the job, remembering and following instructions, or interacting with her co-workers, supervisors or the public. She further indicated that plaintiff would be unemployable if the depression caused her to be absent from work more than twenty days a year.
The ALJ concluded that plaintiff did not suffer from a listed impairment, but that she did have a severe impairment prior to June 30, 1995, the last date of insured status. He further found that plaintiff's subjective complaints were not fully credible. He concluded that plaintiff retained the ability to perform her past relevant work. Accordingly, the ALJ decided this case at step four of the evaluation sequence and concluded that plaintiff was not disabled.
IV.
Plaintiff initially suggests that the decision of the ALJ should be reversed based on the testimony of the vocational expert who testified that plaintiff would be unemployable if her depression caused difficulties in remembering and following job instructions. Plaintiff asserts that the medical evidence supports a conclusion that she would have difficulty concentrating on a job and difficulty in remembering and following job instructions. Plaintiff next argues that there is not substantial evidence in the record to support the ALJ's conclusion that she could perform her past relevant work. She further contends that the ALJ erred by failing to make the requisite findings regarding the demands of her past relevant work and her ability to meet those demands given her residual functional capacity, citing Winfrey v. Chater, 92 F.3d 1017 (10th Cir. 1996). She notes that the ALJ failed to consider plaintiff's affective disorder in considering her residual functional capacity.
Having carefully reviewed the record, the court finds that there is substantial evidence to support the ALJ's determination. The evidence does demonstrate that the plaintiff suffers from some impairments, but we believe that substantial evidence supports the ALJ's conclusion that plaintiff retains the ability to perform her past relevant work. Specifically, the court notes that there is substantial evidence to support the conclusion that plaintiff has the ability to concentrate on a job and to remember and follow job instructions. Doctors Frieman and Shelton determined that plaintiff had a fair ability to understand, remember and carry out simple job instructions. They also found that she had a fair ability to maintain attention and concentration. Dr. Voth concluded that plaintiff had a fair ability to understand, remember and carry out complex job instructions and an unlimited ability to understand, remember and carry out simple job instructions. He further found that plaintiff had a good ability to maintain attention and concentration. The court notes that we are not allowed to reweigh or substitute our judgment for that of the ALJ. While an interpretation of the evidence could support a conclusion that the plaintiff was unable to perform her past relevant work due to depression, we are confident that substantial evidence exists for the conclusion that neither physical nor mental limitations precluded plaintiff from performing her past relevant work.
The court also finds that the ALJ properly evaluated the plaintiff's credibility. The ALJ determined that plaintiff's subjective complaints were not fully credible and her symptoms not as limiting as she alleged. The ALJ stated various reasons in support of this conclusion. These reasons were affirmatively linked to substantial evidence in the record. The determination of credibility is left to the observations made by the ALJ as the trier of fact. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). Great deference should be given to the ALJ's conclusion as to credibility. James v. Chater, 96 F.3d 1341, 1342 (10th Cir. 1996). The court is convinced that the ALJ's decision concerning plaintiff's credibility is supported by substantial evidence.
Finally, the court finds no merit to the plaintiff's argument concerning the application of Winfrey. Step four of the sequential analysis is comprised of three phases. "In the first phase, the ALJ must evaluate a claimant's physical and mental [RFC], . . . and in the second phase, he must determine the physical and mental demands of the claimant's past relevant work." Winfrey, 92 F.3d at 1023. "In the final phase, the ALJ determines whether the claimant has the ability to meet the job demands found in phase two despite the mental and/or physical limitations found in phase one." Id. The burden of proving disability remains with the claimant at step four; however, the ALJ does have a duty "of inquiry and factual development." Henrie v. United States Dept. of Health and Human Services, 13 F.3d 359, 361 (10th Cir. 1993).
The record shows that the ALJ did consider the physical and mental demands of plaintiff's past relevant work and then determine whether she had the ability to meet those demands in light of her physical and mental limitations. In doing so, the ALJ considered the testimony of a vocational expert. The court finds that the requirements of Winfrey were met by the ALJ.
IT IS THEREFORE ORDERED that the decision of the Commissioner be hereby affirmed.
IT IS SO ORDERED.