Nelson v. Astrue (CONSENT)

Filing 17

MEMORANDUM OPINION AND ORDER. Signed by Honorable Wallace Capel, Jr on 1/9/09. (Attachments: # 1 appeals checklist)(vma, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION J A S O N S. NELSON, P l a in tif f , v. M IC H A E L J. ASTRUE, Commissioner of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 2:07cv1045-WC

M E M O R A N D U M OPINION AND ORDER I. INTRODUCTION P la in t if f Jason S. Nelson applied for supplemental security income benefits under T itle XVI, 42 U.S.C. § 1381 et seq. (hereinafter "the Act").1 His application was denied at th e initial administrative level. Plaintiff then requested and received a hearing before an A d m in i str a tiv e Law Judge (ALJ). Following the hearing, the ALJ also denied the claims. T h e Appeals Council rejected a subsequent request for review. The ALJ's decision

c o n se q u e n tly became the final decision of the Commissioner of Social Security (C o m m issio n er).2 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is
1

Plaintiff's application for supplemental security income is not included in the record. Neither party has deemed the actual application necessary to the adjudication of issues raised by the Plaintiff. Accordingly, this Court will proceed with its statutory review in absence of the application. Plaintiff has averred that he is without a portion of the Vocational Expert's testimony at the hearing before the Administrative Law Judge (Doc. #12 at 5, 11), and has requested that he be provided a complete copy of the transcript. The Court notes that the "missing" pages are included in the Transcript (Doc. #16) filed by Defendant and available to Plaintiff through the Court's ECF system. Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with
2

n o w before the Court for review under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c), b o th parties have consented to the conduct of all proceedings and entry of a final judgment b y the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction (Doc. #8); D e f .'s Consent to Jurisdiction (Doc. #7). Based on the Court's review of the record and the b rief s of the parties, the Court AFFIRMS the decision of the Commissioner. II. STANDARD OF REVIEW U n d e r 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e ter m in a b le 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 o f not less than 12 months. 4 2 U.S.C. § 423(d)(1)(A).3 T o make this determination, the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. §§ 404.1520, 416.920 (2006). (1 ) Is the person presently unemployed? (2 ) Is the person's impairment severe? ( 3 ) Does the person's impairment meet or equal one of the specific im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of I m p a i rm e n t s] (4 ) Is the person unable to perform his or her former occupation? (5 ) Is the person unable to perform any other work within the economy?

respect to Social Security matters were transferred to the Commissioner of Social Security. A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
3

2

A n affirmative answer to any of the above questions leads either to the next q u e stio n , or, on steps three and five, to a finding of disability. A negative a n sw e r to any question, other than step three, leads to a determination of "not d is a b le d ." M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4 T h e burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357 F .3 d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying d is a b ility once they have carried the burden of proof from Step 1 through Step 4. At Step 5, th e burden shifts to the Commissioner, who must then show there are a significant number o f jobs in the national economy the claimant can perform. Id. To perform the fourth and fifth steps, the ALJ must determine the claimant's Residual F u n c t i o n a l Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still able to do d e s p ite his impairments and is based on all relevant medical and other evidence. Id. It also c a n contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, th e ALJ considers the claimant's RFC, age, education, and work experience to determine if th e re are jobs available in the national economy the claimant can perform. Id. at 1239. To d o this, the ALJ can either use the Medical Vocational Guidelines 5 (grids) or call a vocational e x p e rt (VE). Id. at 1239-40.

McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986), is a supplemental security income case (SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited as authority in Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981).
5

4

See 20 C.F.R. pt. 404 subpt. P, app. 2.

3

T h e grids allow the ALJ to consider factors such as age, confinement to sedentary or lig h t work, inability to speak English, educational deficiencies, and lack of job experience. E a c h factor can independently limit the number of jobs realistically available to an in d iv id u a l. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorilyre q u ire d finding of "Disabled" or "Not Disabled." Id. The Court's review of the Commissioner's decision is a limited one. This Court must f in d the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U .S .C . § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). "Substantial e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e ra le s, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of th e record which support the decision of the ALJ, but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11th Cir. 1986). [The court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings. . . . No similar p r e s u m p t io n of validity attaches to the [Commissioner's] . . . legal conclusions, in c lu d in g determination of the proper standards to be applied in evaluating c la im s . W a lk e r v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

4

III.

ADMINISTRATIVE PROCEEDINGS P la in tif f was twenty-seven years old and had completed the eleventh grade at the time

o f the hearing before the ALJ. (Tr. 198). Plaintiff's primary past relevant work experience inv o lved work as a construction laborer and a printing press operator. (Tr. 33, 215-16). F o llo w in g the administrative hearing, and employing the five-step process, the ALJ found P la in tif f had not engaged in substantial gainful activity since the alleged onset date of June 2 9 , 2005 (Step 1). (Tr. 34). At Step 2, the ALJ found that Plaintiff suffers from the f o llo w in g severe impairments: "history of heavy alcohol and cocaine abuse, cardiomyopathy m o s t l y secondary to drugs, obesity, and status post defibrillator." (Tr. 34). The ALJ n o n e th e les s found Plaintiff's "impairments, considered individually and in combination, to n o t meet or equal in severity any impairment set forth at 20 C.F.R. Part 404, Subpart P, A p p e n d ix 1." (Tr. 34). After finding Plaintiff's allegations of pain and functional limitations lac k in g full credibility, the ALJ described Plaintiff's RFC as follows: The claimant has the residual functional capacity to perform work within the lim itatio n s/c o n sid e ra tio n s as set forth in [the Residual Functional Capacity A s s e ss m e n t included in the Transcript at pages 142 - 149] with the following c h a n g es : He can lift, carry, push and pull frequently up to 5 pounds and o c c a sio n a lly up to 10-15 pounds. He can occasionally bend, stoop, crawl, c lim b , crouch, kneel, and balance. He should avoid climbing ladders, ropes a n d scaffolds. He should restrict activities involving unprotected heights. He s h o u ld avoid being around moving and hazardous machinery or driving c o m m e rc ia l motorized vehicles. He should avoid concentrated or excessive e x p o su re to pulmonary irritants (dust, odors, fumes, extremes in temperature, h u m id ity). He experiences mild to moderate pain which occasionally affects h is ability to maintain concentration, persistence, and pace.

5

(S te p 3) (Tr. 34). At Step 4, the ALJ found that Plaintiff could not perform any past relevant w o rk . (Tr. 34). At Step 5, the ALJ determined that, based on the Medical-Vocational G u id e lin e s and the testimony of the vocational expert, and in light of Plaintiff's age, e d u c a tio n , and transferable skills, Plaintiff could perform jobs that exist in significant n u m b e rs in the national economy. (Tr. 35). Consequently, the ALJ found Plaintiff had not b e e n disabled since the alleged onset date. IV. P L A I N T I F F 'S CLAIMS P la in tif f contends that the ALJ's decision is not supported by substantial evidence and h e articulates five specific claims in challenging the Commissioner's decision: (1) the ALJ e rre d in rejecting the opinion of Plaintiff's treating physician; (2) the ALJ erred in relying on a state agency opinion; (3) the ALJ avoided a materiality analysis applicable to substance a b u s e in combination with other conditions; (4) the ALJ failed to adequately address P la in t if f ' s obesity; and (5) the ALJ failed to adequately address Plaintiff's mental f u n c tio n in g . The Court will discuss each of these claims below. V. DISCUSSION A. T h e ALJ's treatment of Plaintiff's treating physician's opinion.

P la in tif f claims that his treating physician, Dr. Chan, "rendered consistent opinions o v e r a continuum of treatment" that Plaintiff was not able to work due to his impairments. (D o c . #12 at 6). Plaintiff appears to argue, without specifying exactly what findings of the

6

A L J conflict with Dr. Chan's, that the ALJ was required to adopt Dr. Chan's assertion, on a questionnaire he completed at the behest of Plaintiff's attorney, that Plaintiff's impairments a re "incapacitating." See Tr. 150, 193. Defendant asserts that the ALJ's reasons for d isco u n tin g Dr. Chan's ultimate conclusion about Plaintiff's functional capacities are s u p p o rte d by substantial evidence. (Doc. #15 at 5-7). After hearing medical expert testimony regarding Plaintiff's functional capacities and c o n sid e rin g the medical evidence in the record, the ALJ indeed "rejected" Dr. Chan's opinion th a t Plaintiff's impairments are "incapacitating." (Tr. 31). In reviewing a disability claim, th e opinion of the claimant's treating physician must be afforded substantial and considerable w e ig h t by the ALJ unless "good cause" is shown to the contrary. Crawford v. Comm'r of S o c . Sec., 363 F.3d 1155, 1159 (11th Cir. 2004). "`[G]ood cause' exists when the: (1) tre a tin g physician's opinion was not bolstered by the evidence; (2) evidence supported a c o n tra ry finding; or (3) treating physician's opinion was conclusory or inconsistent with the d o c to r's own medical records." Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2 0 0 4 ). "The ALJ must clearly articulate the reasons for giving less weight to the opinion of a treating physician, and the failure to do so is reversible error." Lewis v. Callahan, 125 F.3d 1 4 3 6 , 1440 (11th Cir. 1997). "Where the ALJ articulated specific reasons for failing to give th e opinion of a treating physician controlling weight, and those reasons are supported by s u b s ta n tia l evidence," a reviewing court may not "disturb the ALJ's refusal to give the o p in io n controlling weight." Carson v. Comm'r of Soc. Sec., 2008 WL 4962696 at *1 (11th

7

C ir. Nov. 21, 2008). In this case, the ALJ clearly articulated the reasons he found "good cause" existed to d is c o u n t the weight of the opinion of Plaintiff's treating physician. Namely, the ALJ found th a t the treating physician's assessment was conclusory and not bolstered by medical e v id e n c e in the record or other expert medical opinion. The only issue before this Court is w h e th e r that decision is supported by substantial evidence, i.e., whether the ALJ's findings a re supported by "more than a scintilla," even if less than a "preponderance," of evidence in th e record. The Court first notes that, "[w]hile statements from treating physicians regarding the le v e l of work a claimant can perform are important, they are not determinative because the A L J has the ultimate responsibility to assess a claimant's residual functional capacity." Id. O n ly the ALJ was charged with the obligation to determine Plaintiff's RFC and, hence, w h e th e r his impairments are, in a legal sense, "incapacitating." In considering the weight to be given Dr. Chan's conclusion, the ALJ had available a substantial amount of probative m ed ical evidence and expert opinion, including a consultative physical examination by Dr. C o lley (Tr. 136-41), a Residual Functional Capacity Assessment completed by Dr. Little (Tr. 1 4 2 - 4 9 ) , Dr. Chan's own Physical Capacities Evaluation of Plaintiff (Tr. 192-94), which a c tu a lly ascribed some greater functional capacities to Plaintiff then those ultimately found b y the ALJ, and the testimony of Dr. Evans at the hearing, who explained that Dr. Chan's tre a tm e n t notes and assessment, as well as that of Dr. Colley, essentially restrict Plaintiff to 8

sed en tary work. None of the available medical evidence before the ALJ, including Dr. C h a n 's own treatment notes and Physical Capacities Evaluation, imposed such a categorical restrictio n on Plaintiff's functional capacities as did Dr. Chan's response to the questionnaire s u b m itte d by Plaintiff's counsel. In light of all of this evidence, the ALJ's ultimate RFC d e ter m in a tio n is supported by substantial evidence. Accordingly, the ALJ's decision to af fo rd less than conclusive weight to Dr. Chan's conclusion that Plaintiff's impairments are " in c a p a c ita tin g " was supported by "good cause." B. T h e ALJ's reliance on state agency opinion.

P lain tiff claims that the ALJ erred in relying upon a Residual Functional Capacity A s s e ss m e n t completed by a state agency physician (Tr. 142-49). Plaintiff contends that the s ta te agency assessment was an inaccurate depiction of Plaintiff's capacities at the time of th e hearing because of an intervening surgery to install a defibrillator and other conflicting m e d ic a l evidence in the record. The ALJ was justified in relying upon the state agency RFC a ss e ss m e n t. The Court first notes that SSR 96-6p requires the ALJ, and this Court, to co n side r the opinion of state agency medical and psychological consultants as relevant expert o p in io n in disability proceedings. Thus, the ALJ was required to consider and give

a p p ro p ria te weight to the state agency RFC assessment in this case. Moreover, the state a g e n cy RFC assessment does not differ substantially from Dr. Chan's own Physical C a p a c itie s Evaluation, which was completed after the intervening surgery. Compare

R esid u al Functional Capacity Assessment (Tr. 142-49) with Physical Capacities Evaluation 9

(T r. 192). Thus, given the applicable guidelines and relatively consistent medical evidence a n d testimony throughout the record, the ALJ's decision to rely upon the stage agency RFC a s s e s s m e n t is supported by substantial evidence. C. T h e ALJ's materiality analysis.

P l a in t if f claims that, through the ordering and juxtaposition of Plaintiff's severe im p airm en t s in the ALJ's opinion, the ALJ implicitly found a causal link between Plaintiff's s e v e re impairment of cardiomyopathy and Plaintiff's history of substance abuse, but that the A L J nevertheless failed to engage in a required materiality analysis. The materiality analysis c o n te m p la te d by the Plaintiff is only required in instances where the ALJ has found a c la im a n t disabled, including the effects of substance abuse, see 20 C.F.R. § 404.1535, which th e ALJ obviously did not do in this instance.6 Thus, the ALJ was not required to engage in a n y materiality analysis in this instance, and his decision finding Plaintiff not disabled is s u p p o rte d by substantial evidence.7

In his opinion, the ALJ disclosed that, hypothetically, had he found Plaintiff disabled he still would not be entitled to benefits due to his substance abuse: "Based on the documented poly-substance abuse, I conclude/find that drug and alcohol abuse is material to claimant's condition/impairments. Thus, his abuse of alcohol and illegal drugs would necessarily be material to any finding of disability. Accordingly even if I had found the claimant disabled, he would not be entitled to benefits." (Tr. 34). Even if the ALJ's hypothetical materiality analysis is deficient, it is harmless in this instance, as the ALJ did not need to reach that issue. Plaintiff appears to grasp this distinction as it relates to this case: "Had the ALJ found Plaintiff disabled pursuant to treating physician opinion, and then taken the next step of applying the materiality test, the evidence might have forced him to the conclusion that[,] absent substance abuse as a candidate for heart surgery, the Plaintiff would still be disabled from his remaining impairments." (Doc. #12 at 9). However, Plaintiff does not explain why such speculation is relevant in this case, given the ALJ's explicit finding that Plaintiff is not disabled 10
7

6

D.

T h e ALJ's treatment of plaintiff's obesity.

P la in tif f claims that the ALJ failed to apply SSR 02-1p, which explicates the Social S e c u rity Administration's policy on the evaluation of a claimant's obesity in disability p ro c e e d in g s. Plaintiff notes that the ruling recognizes that obesity may tend to exacerbate o th e r physical or mental impairments afflicting the claimant. Plaintiff also cites to instances in the record in which Plaintiff's weight (300 pounds or more) and high body mass index are d isc lo se d . While Plaintiff correctly recites that he is obese and that obesity may exacerbate o th e r conditions, Plaintiff does not specifically contend that his obesity exacerbates the e f f e c ts of any of his impairments nor does he demonstrate how his obesity affects his ability to perform work at the sedentary level dictated by his RFC. The record reveals that the ALJ did adequately consider Plaintiff's obesity. The ALJ in c lu d e d obesity in listing Plaintiff's severe impairments. (Tr. 34). The ALJ also took note o f medical evidence raising Plaintiff's obesity and the resulting, even if "mild" or "stable," s h o rtn e s s of breath Plaintiff experienced. (Tr. 24, 25). Moreover, in formulating an RFC w h ic h ultimately restricted Plaintiff to sedentary work, the ALJ was certainly cognizant of, if not accommodating, Plaintiff's obesity. Thus, the ALJ adequately considered Plaintiff's o b e sity and his determination of Plaintiff's RFC is supported by substantial evidence. E. T h e ALJ's Treatment of Plaintiff's Mental Functioning.

regardless of his history of substance abuse. 11

P la in tif f claims that the ALJ failed to "adequately consider Plaintiff's mental im p a irm e n ts ," and also that Plaintiff's mental impairments "created an insufficiency in the re c o rd that the ALJ failed to address" by either obtaining a psychological consultative e x a m in a tio n or re-contacting Plaintiff's physician, Dr. Chan. (Doc. #12 at 10-11). Plaintiff c ite s to a portion of the record in which Dr. Chan - a cardiac specialist - diagnosed Plaintiff w ith depression/anxiety and gave him a prescription for the anti-depressant Lexapro. (Tr. 1 5 3 -5 4 ). Plaintiff contends that "[t]here was no indication that the mental impairments had re so lv e d by [the time of the ALJ hearing,] or would be expected to resolve within twelve m o n th s ." (Doc. #12 at 10). Defendant maintains that the ALJ adequately considered P lain tiff 's mental condition and that the ALJ was not required to further develop the record in that regard. At the hearing, approximately three months after Dr. Chan's diagnosis, the ALJ asked P la in tif f whether he was currently receiving any "mental health treatment," which Plaintiff d e n ie d . (Tr. 202). In his opinion, the ALJ found that Plaintiff's "anxiety and depression h a v e not existed for a sufficient time for an appropriate longitudinal evaluation to be p erf o rm ed . Therefore, I cannot readily find that the claimant's anxiety and depression are s e v e re mental impairments which have lasted or are expected to last for a period of twelve c o n tin u o u s months." (Tr. 30). In order to find an impairment disabling, the ALJ must find th a t it has caused an "inability to engage in any substantial gainful activity . . . [and] can be e x p e cte d to result in death or . . . has lasted or can be expected to last for a continuous period

12

o f not less than 12 months." 42 U.S.C. § 423(d)(1)(A). See also 20 C.F.R. §§ 404.1505, 4 1 6 .9 0 5 ; Barnhart v. Wilson, 535 U.S. 212, 218-20 (2002). Given that Plaintiff's diagnosis o f depression occurred only three months before the hearing and that he had foregone any f u rth e r mental health treatment by the time of the hearing, the ALJ was justified in finding th a t Plaintiff's mental health impairments were not of a sufficient duration to allow a p p ro p ria te consideration, much less render Plaintiff disabled. N o r was the ALJ required to take further steps to develop the record with respect to P lain tiff 's mental impairments. Plaintiff has not identified any "gaps" in the evidence before th e ALJ which would have enhanced his disability claim respecting mental impairments. See B ro w n v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995). Plaintiff relies only upon the scant e v id e n c e of depression included in Dr. Chan's report - evidence which was considered by th e ALJ prior to adjudication. While such evidence is relevant to Plaintiff's claim of mental im p airm en t , the ALJ's decision to forego further record development based on Dr. Chan's re p o rt alone is supported by substantial evidence given Dr. Chan's specialty - cardiology a n d given that the ALJ had already found other aspects of Dr. Chan's various opinions c o n c lu so ry. Likewise, the ALJ was not required to re-contact Dr. Chan in order to clarify his o p in io n on Plaintiff's mental impairments. The ALJ should re-contact a treating physician o n ly when the evidence received from the physician is inadequate to determine whether the c la im a n t is disabled. 20 C.F.R. § 404.1512(e). Here, there was no evidence in the record, o ther than Dr. Chan's diagnosis shortly before the hearing, supporting a finding of severe

13

d e p re ss io n or anxiety. Again, due to Plaintiff's decision to forego further mental health trea tm en t at the time of the hearing, the ALJ was justified in concluding that either Plaintiff's c o n d itio n had improved, or, for the reasons given above, that Dr. Chan's opinion was p ro p e rly limited in weight. In any event, Plaintiff has identified no "gaps" in the evidence g iv in g rise to the likelihood of unfair prejudice due to the ALJ's decision not to re-contact D r. Chan. T h e ALJ's finding that Plaintiff's depression/anxiety does not amount to a severe im p a irm e n t is supported by substantial evidence. Accordingly, the ALJ did not err in further d e v e lo p in g the record with respect to Plaintiff's mental health functioning. V. CONCLUSION

T h e Court has carefully and independently reviewed the record and concludes the d e c is io n of the Commissioner is AFFIRMED. A separate judgment will issue. D O N E this 9th day of January, 2009.

/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

14