Williams v. Astrue

Filing 19

MEMORANDUM OPINION AND ORDER concluding that the decision of the Commissioner is supported by substantial evidence and is, therefore, AFFIRMED. Signed by Honorable Wallace Capel, Jr on 5/20/2010. (cc, )

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 E S S IC A P. WILLIAMS, P l a in tif f , v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 2:09cv546-WC

MEMORANDUM OPINION AND ORDER I. INTRODUCTION P la in tif f Jessica P. Williams applied for supplemental security income under Title XVI o f the Social Security Act ("the Act"), 42 U.S.C. § 1381 et seq. Her application was denied a t the 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 r. 38-50). The Appeals Council rejected a subsequent request for review. The ALJ's d e c isio n consequently became the final decision of the Commissioner of Social Security (C o m m issio n er).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is 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

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 respect to Social Security matters were transferred to the Commissioner of Social Security.

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b y the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction (Doc. #18); D e f .'s Consent to Jurisdiction (Doc. #17). 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).2 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 i r m e n t s 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? A n affirmative answer to any of the above questions leads either to the next q u e sti o 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 ."

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. 2

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M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3 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 tio 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 4 (grids) or call a vocational e x p e rt (VE). Id. at 1239-40. 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
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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).
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See 20 C.F.R. pt. 404 subpt. P, app. 2. 3

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). See also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1 1 5 5 , 1158 (11th Cir. 2004) ("Even if the evidence preponderates against the C o m m is s io n e r 's findings, [a reviewing court] must affirm if the decision reached is s u p p o rte d by substantial evidence."). 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).

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III.

ADMINISTRATIVE PROCEEDINGS P la in tif f was twenty-one years old at the time of the hearing before the ALJ. Tr. 4.

T h e last grade Plaintiff completed in school was the seventh. Tr. 4. The ALJ found that P la in tif f has no past relevant work experience. Tr. 49. Following the administrative hearing, a n d employing the five-step process, the ALJ found Plaintiff had not engaged in substantial g a in f u l activity since the date of her application, August 31, 2006 (Step 1). Tr. 43. At Step 2 , the ALJ found that Plaintiff suffers from the following severe impairments: "posttra u m a tic stress disorder, major depression, and status post lacerations to neck." Tr. 43. The A L J then found that Plaintiff "does not have an impairment or combination of impairments th a t meets or medically equals one of the listed impairments . . . ." (Step 3) Tr. 45. Next, the A L J found that Plaintiff has the RFC to "perform unskilled medium work . . . in a setting w h e r e social interaction is casual and moderately limited." Tr. 46-48. Of course, because o f Plaintiff's lack of any past relevant work, at step four the ALJ was unable to assess P lain tiff 's RFC in the context of relevant work. Next the ALJ found that, given Plaintiff's a g e , education, work experience, and RFC, and after consulting with a vocational expert, th e re "are jobs that exist in significant numbers in the national economy" which Plaintiff can p e rf o rm . (Step 5) Tr. 49. The ALJ found that such occupations include: "food preparation w o rk e r," "janitor," "assembler," "housekeeper," and "cafeteria worker." Tr. 49 & 15-16. A c c o rd in g ly, the ALJ determined that Plaintiff "has not been under a disability, as defined in the Social Security Act, since August 31, 2006, the date the application was filed." Tr. 50.

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IV .

P L A I N T I F F 'S CLAIMS P la in tif f alleges two errors requiring reversal of the ALJ's decision: (1) "the ALJ

f a ile d to properly evaluate the medical opinion expressed by Dr. Lopez, [Plaintiff's] treating p sych iatrist;" and (2) the ALJ's "RFC assessment failed to consider the impact of [Plaintiff's se v e re mental impairment on Plaintiff's] functional ability as required by Social Security R u lin g 96-8p." Pl.'s Brief (Doc. #14) at 5-6. V. DISCUSSION A. T h e ALJ's treatment of Plaintiff's treating source opinion.

P la in tif f claims that the "ALJ failed to evaluate the medical opinions expressed by [ h e r] treating psychiatrist." Pl.'s Brief (Doc. #14) at 6. Specifically, Plaintiff faults the ALJ fo r giving only "little weight" to some of the conclusions conveyed on a questionnaire c o m p le te d by Dr. Lopez, while giving "substantial weight" to the assessment provided by the c o n s u lta tiv e examiner, Dr. McKeown. Id.at 7. Defendant contends that Dr. Lopez should n o t be considered Plaintiff's treating physician 5 and maintains that, even assuming such a Defendant asserts that Dr. Lopez is not a treating physician "because Dr. Lopez did not have a longitudinal treatment relationship with Plaintiff." Def.'s Brief (Doc. #15) at 3-4. "A treating source is defined as the claimant's own physician or psychologist who has provided the claimant with medical treatment and evaluation, and who has had an ongoing relationship with the claimant." Pettus v. Astrue, 226 F. App'x 946, 949 (11th Cir. 2007). In this case, the record reveals that Dr. Lopez saw Plaintiff on four occasions between January 2007 and February 2008, (Tr. 250, 255, 187, &184), and that he rendered the opinion relied upon by Plaintiff in March of 2008 (Tr. 246-248). Dr. Lopez prescribes Plaintiff's medications and oversees her treatment. Plaintiff's relationship with Dr. Lopez is based on her need for treatment, not to "obtain a report in support of [the claim] for disability." Pettus, 226 F. App'x at 949. Thus, for purposes of this opinion, the Court considers Dr. Lopez Plaintiff's treating physician. 6
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re la tio n s h ip , the ALJ properly rejected Dr. Lopez's opinion. In a questionnaire completed on March 13, 2008, Dr. Lopez conveyed his judgment a b o u t Plaintiff's functional limitations across a variety of areas. Although Dr. Lopez opined o n ly "mild" or "moderate" limitations in numerous areas, he opined Plaintiff suffers "m ark ed " 6 limitation in her ability to do the following: "to understand, remember and carry o u t complex instructions;" "to maintain attention and concentration for extended periods;" " to perform activities within a schedule, maintain regular attendance and be punctual within c u sto m a ry tolerances;" "to sustain a routine without special supervision;" "to complete a n o rm a l workday and workweek without interruptions from psychologically based symptoms a n d to perform at a consistent pace without an unreasonable number and length of rest p e r io d s ;" and "to respond to customary work pressures." Tr. 246-47. In the "Comments" s e c tio n of the questionnaire, Dr. Lopez remarked as follows: "Limited education, 8 th grade. S u f f e rs from PTSD, as a result of a sever abusive situation. Experiences Major Depressive D is o rd e r, Single Episode, Moderate. Little to no family support system. Very poor parenting s k ills . Questionable intellect." Tr. 248. In his opinion, the ALJ reviewed Dr. Lopez's responses to the questionnaire (Tr. 444 5 ), but gave "little weight to the conclusions of Dr. Lopez" because they "are not supported b y his treatment notes" and appear contradicted by "multiple statements that the claimant is

The questionnaire instructs that a limitation is "marked" where the impairment "seriously affects ability to function." Tr. 246. 7

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`d o in g fine.'" Tr. 48. The ALJ further determined that the "stated limitations seem based on s u b je c tiv e complaints rather than on objective observations regarding functioning." Tr. 48. When confronted with the opinion of a claimant's treating physician, the ALJ must a f f o rd it substantial and considerable weight unless "good cause" is shown to the contrary. C r a w fo r d v. Comm'r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004). See also Bliss v. C o m m 'r of Soc. Sec., 254 F. App'x 757, 758 (11th Cir. 2007) ("An ALJ may reject the o p in io n of a treating physician, which ordinarily receives substantial weight, where `good c a u se ' is established."). "`[G]ood cause' exists when the: (1) treating physician's opinion w a s not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating p h ys ic ia n 's opinion was conclusory or inconsistent with the doctor's own medical records." P h i llip s v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004). "The ALJ must clearly a rtic u la te the reasons for giving less weight to the opinion of a treating physician, and the f a ilu re to do so is reversible error." Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1 9 9 7 ). See also MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (holding the A L J "must specify what weight is given to a treating physician's opinion and any reason for g iv in g it no weight"). "Where the ALJ articulated specific reasons for failing to give the o p in io n of a treating physician controlling weight, and those reasons are supported by s u b s t a n t ia 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., 300 F. App'x 741, 743 (11th C ir. 2008).

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U p o n a review of the evidence, the Court finds that "good cause" supports the ALJ's d e c is io n to give less than significant or controlling weight to the opinion of Dr. Lopez. The A L J found that Dr. Lopez's opinion is not supported by his treatment notes. Tr. 48. Indeed, th e treatment notes from Dr. Lopez's four periodic and brief assessments 7 of Plaintiff do not le n d compelling support for the "marked" limitations he later indicated on the questionnaire. T o the extent they are legible, in his treatment notes Dr. Lopez generally described Plaintiff a s "neat" or "clean" in appearance, "clear" in thinking, cooperative in behavior, "euthymic" i .e ., "normal" - in mood, and lacking any abnormal movements. Tr. 187, 184, 255, 250. B a se d on these scant observations in his treatment notes, it is unclear how Dr. Lopez could d ra w such sweeping conclusions as those contained in the questionnaire he completed. Nevertheless, Plaintiff contends that Dr. Lopez's treatment notes do support the lim itatio n s which he opined. Pl.'s Brief (Doc. #14) at 9. However, Plaintiff cites primarily to the numerous notes made by Plaintiff's non-physician counselor or nurses at SpectraCare. S e e , e.g., Tr. 181, 183, 185, 186, 253. These records are not signed by Dr. Lopez, and there is no indication in the record that he reviewed them or relied upon them in rendering his o p in io n . Moreover, these records mostly just reflect Plaintiff's subjective complaints to the c o u n se lo r and/or nurse about her sleeping problems and/or depression.8 See Tr. 183, 185,
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According to Plaintiff's "Treatment Plan" at SpectraCare, Plaintiff was to meet with Dr. Lopez for Physician Medical Assessment & Treatment" "every three months for 15 mins." Tr. 192. In the Court's judgment, wholesale reliance on Plaintiff's subjective statements renders any resulting opinion tenuous at best. Indeed, the ALJ found that Plaintiff is less than 9
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1 8 8 . In some instances, they indicate that Plaintiff demonstrated "Improved" "Progress T o w a rd Goals," was functioning better, had elevated mood, and was attempting to take steps to w a rd self-improvement. See, e.g., Tr. 193, 181. In any event, the records do not reflect the s o rt of objective, empirical observations that would lend support to Dr. Lopez's opinions a b o u t Plaintiff's purportedly "marked" limitations in the functional areas identified on the q u e stio n n a ire . The value of Dr. Lopez's opinion, if intended as a reasoned judgment based o n a history of his treating Plaintiff, is further undercut by Plaintiff's testimony at the hearing th a t she "does not talk to" Dr. Lopez beyond telling him "if the medicine is working or not." T r. 12. Considering the brief, occasional, and limited nature of their contacts, it is unclear to the Court how Dr. Lopez could reasonably and reliably opine that Plaintiff suffers " m a r k e d " limitations in the functional areas he considered on the questionnaire. Thus, the C o u rt considers the opinion conclusory. Moreover, Dr. Lopez's opinion does not find substantial support in other parts of the r e c o rd . Dr. Rankart's Psychiatric Review Technique (Tr. 163-176) and Mental Residual F u n c tio n a l Capacity Assessment (Tr. 177-180), which were based largely on the evaluations o f Dr. McKeown (Tr. 150-154) and Dr. Meadows (Tr. 156-160), found only "moderate" lim itatio n s , at worst, in various functional areas and opined that Plaintiff has "mild to fully credible with respect her statements about the severity of her impairments and their limiting effects. Tr. 47-48. The Court here notes that the ALJ's finding is buttressed by Plaintiff's own admission that she views "a SSD check as being the answer to all her problems." Tr. 253. The Court finds this statement telling in view of the fact that Plaintiff has never maintained steady employment and apparently began the instant course of seeking disability sometime after being "cut off" from a prior Social Security payment upon reaching the age of eighteen. Tr. 3. 10

m o d e r a te mental limitations for the workplace" and is "[c]apable of simple-task e m p lo ym e n t." See Tr. 173, 175, 177-79. These limitations were incorporated into Plaintiff's R F C by the ALJ. Tr. 46-48. Accordingly, because the Court finds that Dr. Lopez's opinion is conclusory and not supported by his treatment notes or other evidence in the record, su b sta n tial evidence supports the ALJ's determination that there exists "good cause" to a f f o rd Dr. Lopez's opinion "little weight." See Crawford v. Comm'r of Soc. Sec., 363 F.3d 1 1 5 5 , 1159 (11th Cir. 2004) ("A treating physician's report may be discounted when it is not ac co m p an ied by objective medical evidence or is wholly conclusory."). B. W h e th e r the ALJ's ruling comports with SSR 96-8p.

P lain tiff claims that, "despite the ALJ's finding that [Plaintiff] had a severe im p a irm e n t , his RFC assessment failed to consider the impact of this impairment on f u n c tio n a l ability as required by Social Security Ruling 96-8p." Pl.'s Brief (Doc. #14) at 11. P la in tif f further claims that a "thorough review of the ALJ's decision reveals that he failed to transfer the limitations imposed by [Plaintiff's] mental impairments into work-related f u n c tio n s ," in violation of SSR 96-8p. Id. at 12. Defendant claims that the ALJ complied w ith pertinent regulations and SSR rulings and Eleventh Circuit case law in rendering P la in tif f 's RFC. Def.'s Brief (Doc. #15) at 8. Social Security Ruling 96-8p describes the procedures to be undertaken in assessing a claimant's RFC. According to SSR 96-8p, the ALJ is required to "address both the r e m a i n in g exertional and nonexertional capacities of the individual." 11 Non-exertional

c a p ac itie s, including mental capacities affected by mental impairments, "must be expressed in terms of work-related functions." As an example, SSR 96-8p instructs that "[w]orkre la te d mental activities generally required by competitive, remunerative work include the a b ilitie s to: understand, carry out, and remember instructions; use judgment in making workre la te d decisions; respond appropriately to supervision, co-workers and work situations; and d e a l with changes in a routine work setting." In this case, the ALJ determined that Plaintiff retains the RFC to "perform unskilled m ed ium work . . . in a setting where social interaction is casual and moderately limited." Tr. 4 6 . The ALJ reached this RFC determination after incorporating his findings respecting P la in tif f 's mental impairments and their effects on Plaintiff's activities of daily living, social f u n c tio n in g , concentration, persistence or pace, and episodes of decompensation. Tr. 45-46. U p o n finding only "mild" or "moderate" limitations in those areas, as well as no episodes of d e c o m p e n s a tio n , thus precluding a finding that Plaintiff's mental impairments are of listinglev e l severity, the ALJ then "translated" his "findings into work-related functions" in his R F C assessment. Thus, the ALJ formulated an RFC which takes into account Plaintiff's m e n t a l impairments and their resulting limitations on her nonexertional capacities. N e v e rth e le s s , Plaintiff contends that the ALJ "failed to assess the RFC in terms of workre la te d functions." Pl.'s Brief (Doc. #14) at 12. Plaintiff claims the ALJ "failed to transfer th e limitations imposed by [Plaintiff's] mental impairments into work-related functions." Id. P la in tif f 's argument, therefore, presupposes that the ALJ is required to address every work-

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re la te d function in terms of Plaintiff's capacity for that discrete function as a result of her m e n ta l impairments. However, Plaintiff does not identify any particular work-related f u n c tio n which, it is asserted, her RFC does not encompass. Nor does she present any a u th o rity for the proposition that the ALJ is required to address each work-related function in describing RFC. As noted by Defendant, in an unpublished decision, the Court of Appeals for the E le v e n th Circuit has held that an ALJ's failure to "more specific[ally] and explicit[ly]" set f o rth his findings with respect to a claimant's "functional limitations and work-related a b ilities on a function-by-function basis" does not run afoul of SSR 96-8p where it is a p p a re n t the ALJ did "consider all of the evidence." Freeman v. Barnhart, 220 F. App'x 9 5 7 , 959-60 (11th Cir. 2007). See also Chavez v. Astrue, 276 F. App'x 627, 627-28 (9th Cir. 2 0 0 8 ) ("Chavez claims that the ALJ committed legal error by determining his mental residual f u n c tio n a l capacity without performing a function-by-function assessment as required by S o c ia l Security Ruling 96-8p. This claim fails because the ALJ considered and noted `all of th e relevant evidence' bearing on Chavez's `ability to do work-related activities,' as required b y the function-by-function analysis.") (internal citations omitted). In this case, it is apparent the ALJ considered all of the relevant evidence in reaching a determination as to Plaintiff's RFC. The ALJ meticulously reviewed each piece of medical e v id e n c e bearing on Plaintiff's mental impairments and weighed it accordingly. Tr. 43-45. T h e ALJ also considered Plaintiff's testimony at the hearing. 13 Tr. 47. Although,

u n d erstan d ab ly to Plaintiff's chagrin, the ALJ assigned little or no weight to some evidentiary m a te ria ls favorable to Plaintiff, see Tr. 48, Plaintiff points to no evidence which, it is alleged, w a s not considered by the ALJ. Only after reviewing all of the available evidence pertaining to Plaintiff's impairments did the ALJ express Plaintiff's RFC in terms of a specific e x e rtio n a l level. Tr. 46-48. Although the ALJ could have addressed Plaintiff's capacity for e v e ry work-related function given her mental impairments, governing law and regulations d o not require such rote formality provided that it is apparent the ALJ has considered all re le v a n t evidence bearing on Plaintiff's ability to do work-related activities. Accordingly, th e ALJ did not fail "to consider the impact of [Plaintiff's mental] impairment on functional a b ility." Pl.'s Brief (Doc. #14) at 11. VI. C O N C L U SIO N T h e Court has carefully and independently reviewed the record and concludes the d e c is i o n of the Commissioner is supported by substantial evidence and is, therefore, A F F I R M E D . A separate judgment will issue. D O N E this 20th day of May, 2010.

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

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