Brown v. Social Security Administration

Filing 13

MEMORANDUM OPINION AND ORDER affirming the Commissioner's decision, and hereby dismissing the case with prejudice. Signed by Magistrate Judge Beth Deere on 09/25/08. (hph)

I N THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS E A S T E R N DIVISION B O B B I E BROWN V. No. 2:07CV00123-BD PLAINTIFF

M I C H A E L J. ASTRUE, C o m m is s io n e r of Social Security

DEFENDANT

M E M O R A N D U M OPINION AND ORDER P la in tif f Bobbie Brown seeks judicial review of a final decision of the C o m m iss io n e r of the Social Security Administration ("Commissioner") denying her claim f o r disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 416(I), 423, 1381-1382c. This action is brought under § 205(g) of the amended Act, 4 2 U.S.C. § 405(g), as incorporated by reference through 42 U.S.C. § 1383(c)(3) (the "A ct"). I. A D M I N IS T R A T I V E PROCEEDINGS T h e Plaintiff filed an application for disability insurance benefits on February 15, 2 0 0 5 , alleging disability since July 28, 2004. (Tr. 63-65) Her claims were denied initially a n d upon reconsideration. (Tr. 46-48, 55-56) At the Plaintiff's request, a hearing was h e ld on April 25, 2007, before an Administrative Law Judge ("ALJ").1 The Plaintiff te stif ie d at the hearing (Tr. 597-625), as did her husband (Tr. 626-33) and a vocational ex p ert. (Tr. 633-36) The Plaintiff was represented by her attorney at the hearing. (Tr.

1

The Honorable David J. Manley.

5 9 4 ) On June 27, 2007, the ALJ issued his decision denying the Plaintiff's claim. (Tr. 2 1 -29 ) On September 11, 2007, the Appeals Council denied her request for review (Tr. 6 -8 ), making the ALJ's decision the final decision of the Commissioner. It is from this d e c is io n that the Plaintiff seeks judicial review. II. BACKGROUND T h e Plaintiff claimed disability based on bladder problems 2 and anxiety. (Tr. 81) A t the time of the hearing, Plaintiff was fifty years old, with two years of college e d u c a tio n . (Tr. 21, 86, 597-598). She had past relevant work as a cashier, an assembly lin e worker, and a substitute teacher. (Tr. 21, 82-83, 88-95, 101-102, 598-605) She lived w ith her husband and fourteen-year-old daughter. (Tr. 605) The Plaintiff testified that she h a d experienced problems with her nerves for years but that the problems had worsened a s she had aged. Her medications at the time of the hearing included Seroquel, A lpraz o lam , iron for anemia, and Aleve for headaches. (Tr. 146) The Plaintiff's activities of daily life included getting her daughter off to school in th e mornings, cleaning house, cooking, going to the gym twice a week, visiting her m o th e r, driving, and regularly attending church and Bible study. (Tr. 610-12) In 2006,

Plaintiff apparently does not pursue her claim of disability based on urinary in c o n tin e n c e in her appeal of the Commissioner's decision. Accordingly, the Court will re v ie w the ALJ's decision that the Plaintiff's mental condition did not render her disabled u n d e r the Act. 2

2

s h e was able to host a Christmas dinner at her home for ten to twelve family members. (Tr. 606-07) Plaintiff had been treated for emotional and mental problems since 2001. Her m ed ical history is extensive. George Conner, M.D., Plaintiff's primary care doctor, d ia g n o s e d depression with anxiety in March, 2002, and prescribed Effexor. (Tr. 194) He h as treated the Plaintiff from that time forward. Dr. Conner and other medical providers h a v e prescribed various drugs over the years to treat Plaintiff's anxiety, including L ex ap ro (Tr. 186, 185, 184, 282), Ativan (Tr. 339-40), Zoloft. (Tr. 266), Paxil. (Tr. 2 5 1 -5 2 ), Lorazepam. ( Tr. 277-78), Ambien. (Tr. 284, 282, 280, 424-30, 417-18, 339-40), Seroquel (Tr. 281), Xanax (Alprazolam) (Tr. 296-98), Abilify, Cogentin, Sonata. (Tr. 4 5 4 -58 ) and Prozac (Tr. 339-40). O n April 26, 2005, the Plaintiff underwent a consultative mental status evaluation p e rf o rm e d by Charles Spellman, Ph.D. (Tr. 218) At the time she was taking Paxil, L e x a p r o , Concerta, Lorazepam, and Ativan. (Tr. 218). Dr. Spellman diagnosed post tra u m a tic stress disorder but noted that the Plaintiff "fixes complete meals, goes shopping f o r groceries, drives a vehicle, and attends church regularly. She pays bills. She manages th e family money. She has friends. . . . She is involved in her daughter's school activities. . . . A typical day might include visiting her mother, doing housework, checking on her d au g h ter at school. . . . Her plans are that, perhaps, she would like to travel in the future b u t not [too] far at one time." (Tr. 220) Dr. Spellman found no areas of significant

3

lim ita tio n in adaptive functioning and no evidence of exaggeration or malingering. (Tr. 220-21) He found no evidence of "unusual passivity, dependency, aggression, im p u lsiv en ess, or withdrawal. (Tr. 220) Although Plaintiff complained of memory p ro b le m s , Dr. Spellman noted that "possible memory loss . . . did not seem significant e n o u g h to warrant a diagnosis." (Tr. 220) O n June 30, 2006, the Plaintiff was admitted to the emergency room of the Baptist M e m o r ia l Hospital in Memphis with psychosis. She was given injections of Haldol and A tiv a n . (Tr. 354, 358). The next day, on July 1, 2006, the Plaintiff was involuntarily c o m m itte d to Lakeside Behavioral Health System for acute psychosis with delusional type b e h a v io r. During her hospitalization, Plaintiff was placed on Ambien for sleep and H a ld o l injections twice a day for acute exacerbation of psychotic symptomatology. The H a ld o l was tapered down and eventually discontinued. The Plaintiff was discharged on J u ly 10, 2006, with a final diagnosis of psychosis and a global assessment of functioning ("G A F ") of 80. Her discharge medications included Abilify, Cogentin, and Sonata. (Tr. 4 5 4 -5 8 ) O n July 17, 2006, the Plaintiff was admitted to Counseling Consultants as an o u tp a tien t. She was diagnosed with generalized anxiety disorder, psychosis, and possible b ip o la r disorder with psychotic features. (Tr. 400-401) On July 24, 2006, the Plaintiff w a s prescribed Abilify, and Sonata and Cogentin were discontinued. (Tr. 399) During a

4

m e d ica tio n management appointment on June 31, 2007, the Plaintiff was diagnosed with a mood disorder and psychosis. She was also assigned a GAF score of 48. (Tr. 402-406) O n July 28, 2006, Dr. Conner saw the Plaintiff for a follow-up for her psychosis. H e noted that she was much improved with no obvious psychotic behavior. Dr. Conner in c re a se d the dosage of Abilify. (Tr. 434) O n December 8, 2006, the Plaintiff was seen by Jack Morgan, M.D., a psychiatrist. Dr. Morgan noted that the Plaintiff's mood was stable and that there were no overt p s yc h o tic symptoms. He assigned her a GAF of 70. (Tr. 444) During a January 19, 2007 o f f ice visit, Dr. Morgan noted that the Plaintiff was feeling well and was working out at a g ym at least once a week. He continued to prescribed Seroquel and Xanax. (Tr. 445) O n a March 2, 2007 visit to Dr. Morgan, the Plaintiff reported that she was feeling m o re relaxed and "calmed down." Dr. Morgan continued to diagnose depressive disorder a n d anxiety disorder. On March 9, 2007, Dr. Morgan increased the dosage of Seroquel b ec au se the Plaintiff reported not sleeping. (Tr. 446). In an April 25, 2007 letter, Dr. Conner stated: I have been a primary care provider for Bobbie A. Brown since December o f 2001. I have seen her for a variety of complaints and problems. I have s e e n no evidence of malingering of deceptive behavior. She has suffered fro m anxiety and anxiety-related illness during the years I have seen her. L a st year she suffered with an episode which caused psychosis and re q u ire d her hospitalization. Since that time her emotional state would not a llo w employment. I have been concerned since that time she would not b e able to return to full time employment. She has been in a relatively s ta b le condition over the past few months but because of the continued p ro b lem s she has with stress and anxiety in normal daily activity, she is 5

n o t able to tolerate full time employment. In my opinion, she is not able to re tu rn to work now or in the future. (Tr. 448). O n May 31, 2007, Dr. Morgan noted that the Plaintiff was "doing fairly well." (Tr. 449) He noted that there were occasions, such as preparing for special occasions s u c h as her grandson's graduation party, when the Plaintiff had "some feeling of tension o r emotional distress," but that it was "nothing severe." (Tr. 449) He assigned her a GAF o f 65 and recommended that she start seeing a counselor as well. (Tr. 449) On July 10, 2007, The Plaintiff reported to Dr. Conner that her medications were w o rk in g well. She requested a refill on her medications instead of having to get them f ro m Dr. Morgan due to the expense of traveling to Memphis. Dr. Conner reported that th e Plaintiff had experienced "no psychotic episodes" since she had begun taking S e ro q u e l. (Tr. 584) III. A L J 's DECISION T h e ALJ followed the required five-step sequence to determine: (1) whether the c la im a n t was engaged in substantial gainful activity; (2) if not, whether the claimant had a s e v e r e impairment; (3) if so, whether the impairment (or combination of impairments) m et or equaled an impairment listed in the Listing of Impairments in Appendix 1, Subpart P , 20 C.F.R. Part 404; (4) if not, whether the impairment (or combination of impairments) p re v e n te d the claimant from doing past relevant work. If the claimant has sufficient

6

re sid u a l functional capacity to perform past relevant work, the inquiry ends and benefits a re denied. 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). In his decision, the ALJ found that Plaintiff had not engaged in substantial gainful a c tiv i ty since the onset of her alleged disability, although she had worked part time as a s u b s titu te teacher. (Tr. 28) He found that Plaintiff had severe mental impairments, but th a t her mental impairments did not meet or equal an impairment found in the Appendix 1 L is tin g of Impairments. (Tr. 28) He also found that Plaintiff's subjective allegations w e re not entirely credible. (Tr. 28) The ALJ determined that Plaintiff had the residual f u n c tio n a l capacity to perform work-related activities at the semi-skilled level with no ex ertio n al limitations. (Tr. 28) At Step Four of the evaluation, the ALJ found that Plaintiff could perform her past relev an t work as an assembly worker and cashier (Tr. 29), because both jobs were c a te g o riz e d as light and either unskilled or semi-skilled. This finding was supported by th e testimony of a vocational expert. (Tr. 636) The ALJ concluded that Plaintiff was not d isa b led under the meaning of the Act and that she was, accordingly, not entitled to b e n e fits . (Tr. 29) In reaching his decision, the ALJ rejected the opinion of the Plaintiff's general p rac titio n er that the Plaintiff was "not able to return to work now or in the future." (Tr. 4 4 8 ) The ALJ conceded that a treating physician's opinion is generally entitled to "great

7

w e ig h t," but noted that he was not bound by a treating physician's opinion on the ultimate is s u e , i.e., whether a claimant is disabled. (Tr. 25) He also rejected the opinion because Dr. Conner did not have specialized training in mental impairments, as did Plaintiff's treating psychiatrist, Dr. Morgan. (Tr. 25-26) Finally, he rejected the opinion because he found it contrary to the opinion of Plaintiff's tre a tin g psychiatrist. IV. A N A L Y SIS A. S t a n d a r d of Review

T h is Court's review of the Commissioner's decision is limited to determining "w h ethe r the Commissioner's decision is supported by substantial evidence on the record a s a whole." Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir.2005). "Substantial evidence `is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion.'" Chunn v. Barnhart, 397 F.3d 667, 671 (8th C ir. 2005)(quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). In reviewing th e record as a whole, the Court must consider evidence that detracts from the C o m m is s io n e r' s decision as well as evidence that supports it. Porch v. Chater, 115 F.3d 5 6 7 , 571 (8th Cir. 1997). B. P la in t iff's Assignment of Error

T h e Plaintiff argues that the ALJ erred in disregarding the opinion of Dr. Conner, P lain tiff 's primary care physician, who opined that the Plaintiff was "unable to return to

8

w o rk now or in the future." (Tr. 448) She argues that it was error for the ALJ to d is re g a rd Dr. Conner's opinion because: (1) Dr. Conner was qualified, as a general p ra c titio n e r, to diagnose and treat mental disorders; and (2) Dr. Conner's opinion was not " c o n tra ry to" the opinion of Dr. Morgan, Plaintiff's treating psychiatrist. According to th e Plaintiff, Dr. Morgan's findings support Dr. Conner's opinion that the Plaintiff was u n a b le to work. C. D is c u s s io n

It is true that a treating physician's medical opinion is entitled to substantial w e ig h t, but "statements that a claimant could not be gainfully employed are not medical o p in io n s but opinions on the application of the statute, a task assigned solely to the d is c re tio n of the Commissioner." Krogmeier v. Barnhart, 294 F.3d 1019, 1023 (8th Cir. 2 0 0 2 )(c ita tio n s omitted); see also Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005) ("A m ed ical source opinion that an applicant is `disabled' or `unable to work,' however, in v o lv e s an issue reserved for the Commissioner and therefore is not the type of `medical o p inion ' to which the Commissioner gives controlling weight."); 20 C.F.R.§ 416.927(e); S o c i a l Security Ruling 96-5p. "Giving controlling weight to [treating physician's] o p in io n s would, in effect, confer upon the treating source the authority to make the d e te rm in a tio n or decision about whether an individual is under a disability, and thus w o u ld be an abdication of the Commissioner's statutory responsibility to determine w h e th e r an individual is disabled." Social Security Ruling 96-5p.

9

T h e Plaintiff also argues that Dr. Conner's opinion regarding Plaintiff's disability is consistent with that of Dr. Morgan. A careful review of medical records from Dr. M o rg a n , however, indicate that the Plaintiff's medications and treatment were effective. On December 8, 2006, Dr. Morgan noted that the Plaintiff's mood was stable; that th e re was no overt psychotic symptomatology, delusional thinking, or grandiosity; and that her thought processing was "integrated." (Tr. 444) On January 19, 2007, Dr. M o rg a n reported that Plaintiff's mood was stable; there was no psychotic s ym p to m a to lo g y, delusional thinking, or grandiosity. (Tr. 445) Furthermore, he noted th a t Plaintiff was "less vulnerable to day to day stressors," and that her ability to cope w ith normal day-to-day issues was improved. (Tr. 445) After Plaintiff's appointment w ith Dr. Morgan on March 2, 2007, Dr. Morgan's assessment remained unchanged from h is January notes. (Tr. 446) The hearing was held on April 25, 2007, less than six weeks a f te r Plaintiff's March, 2007 appointment. Significantly, at all appointments, Dr. Morgan fo u n d that Plaintiff had a GAF rating consistent with only mild symptoms. (Tr. 445-449) See AMERICAN PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL D ISORDERS 32 (4th ed. Text Revision 2000). Furthermore, Dr. Conner's opinion that Plaintiff was disabled is inconsistent with h is own records of Plaintiff's progress. Although Dr. Conner's opinion letter is dated A p ril 25, 2007, he apparently last saw Plaintiff for symptoms of mental illness in July of 2 0 0 6 , shortly after her psychotic break in June 2006. After examining Plaintiff on July

10

2 8 , 2006, Dr. Conner noted that Plaintiff was feeling much better, and was sleeping b e tte r at night until previous two nights. (Tr. 434) He also noted that the Plaintiff had " n o significant anxiety" at that time. (Tr. 434) T h e re is no doubt that the Plaintiff suffered from anxiety, and the ALJ conceded as m u c h . In fact, the Plaintiff was hospitalized in July of 2006, with a psychotic break. However, since that time, the medical records from both Dr. Conner and Dr. Morgan in d ic a te d that her medications effectively had managed her anxiety disorder, and she had e x p e rie n c ed no other psychotic episodes. "If an impairment can be controlled by tre a tm e n t or medication, it cannot be considered disabling." Brown v. Barnhart, 390 F.3d 5 3 5 , 540 (8th Cir. 2004) (citations omitted). An ALJ's assessment of a claimant's residual functional capacity is acceptable if it is supported by some medical evidence based upon the ALJ's independent review of the re c o rd . Krogmeier, 294 F.3d at 1024. Furthermore, the assessment of residual functional c a p a c ity is based upon all the evidence in the record, not only the medical evidence. Dykes v. Apfel, 223 F.3d 865, 866-867 (8th Cir. 2000). In this case, the Plaintiff's a c tiv itie s of daily living bolster the finding that Plaintiff is capable of performing light w o rk . A c tiv itie s of daily living should not, standing alone, direct a finding that a Plaintiff is not disabled. See Baumgarten v. Chater, 75 F.3d 366, 369 (8th Cir.1996) (a plaintiff's a b ility to perform light housework and visit with friends "provides little or no support for

11

th e finding that a claimant can perform full-time competitive work." In this case, h o w e v e r, the Plaintiff's activities of daily living were consistent with the ALJ's findings th a t the Plaintiff retained the ability to perform unskilled and semi-skilled work. O f course, there must be some medical evidence that supports the ALJ's residual f u n c tio n a l capacity finding. Dykes, 223 F.3d at 866-867 In this case, there is ample m e d ic a l evidence to support the finding that the Plaintiff had the residual functional c a p ac ity to perform light work, as set out above. V. C O N C L U SIO N T h e Commissioner's decision in this case was supported by substantial evidence, inclu d ing medical evidence from Plaintiff's treating psychiatrist and her primary care d o c to r. Accordingly, the Commissioner's decision is affirmed, and the case is hereby d is m is s e d with prejudice. D A T E D this 25th day of September, 2008.

___________________________________ U N IT E D STATES MAGISTRATE JUDGE

12