Scott v. Social Security Administration

Filing 16

MEMORANDUM OPINION AND ORDER denying Plaintiff's appeal and directing the Clerk to close the case this 26th day of January, 2009. Signed by Magistrate Judge Beth Deere on 1/26/09. (hph)

I N THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS W E S T E R N DIVISION T O M SCOTT V. NO. 4:07CV01031-BD PLAINTIFF

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

DEFENDANT

M E M O R A N D U M OPINION AND ORDER

P la in tif f Tom Scott brings this action for review of a final decision of the C o m m iss io n e r of the Social Security Administration ("Commissioner") denying his claim f o r Disability Insurance benefits ("DIB") under Title II of the Social Security Act (the " A c t" ) and Supplemental Security income ("SSI") under Titles II and XVI of the Social S ec u rity Act (the "Act"). I. P r o c e d u r a l History: P la in tif f filed his application for DIB on October 30, 2002, and his application for S S I on October 8, 2003.1 (Tr. 98-100, 453-55) Plaintiff alleges that he became disabled o n May 1, 1999. (Tr. 131) He claims disability due to temporomandibular joint disease (" T M J" ), 90% hearing loss in the left ear, torn ACL in the right knee, pain in the right hip a n d psychological disorders. (Tr. 131) The claims for DIB and SSI were consolidated, Plaintiff also filed DIB applications on February 27, 2001 and May 3, 2002, both o f which were denied . (Tr. 89-92, 101-103) 1
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a n d the ALJ 2 held a hearing on January 15, 2004. (Tr. 31) On April 29, 2004, the ALJ is s u e d a decision denying Plaintiff benefits. (Tr. 23) The Plaintiff requested review from th e Appeals Council. (Tr. 456-470) On September 24, 2004, the Appeals Council denied P la in tif f 's request for review. (Tr. 4-6) Plaintiff filed a complaint in the United States D is tric t Court for the Western District of Arkansas on October 18, 2004. Scott v. B a r n h a r t, CA No. 04-2229. On January 3, 2006, the Court adopted the report and re c o m m e n d a tio n of the Honorable Beverly Stites Jones and remanded the case to the C o m m is s io n e r for further consideration pursuant to sentence four of 42 U.S.C. § 405(g). (Tr. 520) B a se d on the District Court's order, the Appeals Council remanded the case to the A L J on January 25, 2006, and on October 18, 2006, the ALJ held a second hearing. (Tr. 5 2 9 , 558). At this hearing, Plaintiff requested a closed period of disability from May 1, 1 9 9 9 to January 19, 2004. (Tr. 562) On February 15, 2007, the ALJ issued a decision on re m a n d denying Plaintiff benefits. (Tr. 496-508) In the decision, the ALJ found that P la in tif f had not been disabled because he had been capable of making successful ad justm en t to other work that exists in significant numbers in the national economy. (Tr. 5 0 7 , Finding 10) The Appeals Council considered the Plaintiff's request for review of th e ALJ's decision on remand but found no reason to assume jurisdiction. (Tr. 485-487)

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The Honorable Mark S. Anderson. 2

A c c o rd in g ly, the ALJ's February 2007 decision became the Commissioner's final d e c is io n for purposes of judicial review. II. B a c k gro u n d : P lain tiff was 35 years old at the time of the alleged onset of his disability (Tr. 506), a n d had a high school diploma with some college education. (Tr. 36, 564) For purposes o f the Act, Plaintiff was classified as "a younger individual." (Tr. 506) 20 C.F.R. §§ 404.1563 and 416.963 (2006). He had past work experience as a restaurant m a n a g er/o w n e r and a Subway restaurant manager. (Tr. 506) Plaintiff began attending co lleg e full-time in January, 2004, and completed college in December, 2005. (Tr. 565) At the time of the October 2006 hearing, Plaintiff was living with his wife, attending g ra d u a te school, working as a graduate assistant, and working part-time at Lion's World S e rv ic e s for the Blind. (Tr. 563, 565, 580-82) III. F in d in g s of the ALJ: O n remand, the ALJ considered Plaintiff's impairments by way of the required f iv e -s te p sequential evaluation process. The first step involves a determination of w h e th e r the claimant is involved in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(I); 416.920(a)(4)(I) (2005). If the claimant is, benefits are denied, re g a rd le s s of medical condition, age, education or work experience. Id. at

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§ § 404.1520(b); 416.920(b). In this case, the ALJ found that Plaintiff had not engaged in s u b s ta n tia l gainful employment from May 1, 1999 until January 15, 2004, when he re tu rn e d to college. (Tr. 499) S te p 2 involves a determination of whether the claimant has an impairment or c o m b in a tio n of impairments which is "severe" and meets the duration requirement. Id. at § § 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If not, benefits are denied. Id. A "severe" im p a irm e n t significantly limits a claimant's ability to perform basic work activities. Id. at § § 404.1520(c); 416.920(c). The ALJ found that Plaintiff had anxiety, degenerative joint d is e a se in the right knee and hearing loss in the left ear. (Tr. 499) S tep 3 involves a determination of whether the severe impairment meets or equals a listed impairment. Id., §§ 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If so, and the duration re q u ire m e n t is met, benefits are awarded. Id. If the claimant does not meet or equal a lis tin g , then a residual functional capacity assessment is made. Id., § 404.1520(a)(4) and § 416.920(a)(4). This residual functional capacity assessment is used at Steps 4 and 5. Id. In this case, the ALJ determined that the evidence did not establish that Plaintiff had an impairment alone or in combination that met or equaled a listed impairment. (Tr. 499) Accordingly, the ALJ proceeded to make a functional capacity assessment. S te p 4 involves a determination of whether the claimant has sufficient residual f u n c tio n a l capacity ("RFC") to perform past relevant work. Id., §§ 404.1520(a)(4)(iv);

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4 1 6 .9 2 0 (a )( 4 )( iv ). If so, benefits are denied. Id. After a review of the Plaintiff's medical re c o rd s , the ALJ determined that the Plaintiff had the ability to: lif t-c a rry up to 20 pounds occasionally and 10 pounds frequently, but an u n lim ite d ability to push-pull. Claimant also has the ability to sit 6 to 8 h o u rs in an 8-hour workday (1-2 hours in a continuous period) and the a b ility to stand and/or walk 6 to 8 hours in an 8-hour workday (1-2 hours in a continuous period). However, the evidence supports a conclusion that the c la im a n t has a 95% hearing loss in the left ear. Additionally, based on the c laim a n t's history of anxiety, the undersigned finds that the claimant would re q u ire a work setting where interpersonal contact is routine but superficial; th e complexity of tasks is learned and performed by experience; the use of ju d g m e n t is required within limits; and little supervision in [sic] required f o r routine matters, with more detailed supervision for non-routine matters. (Tr. 503) The ALJ specifically found that Plaintiff's anxiety did place some limits on his a b ility to work and took these limitations into account in his functional capacity e v a l u a tio n . (Tr. 503) The ALJ determined that Plaintiff could not return to his past relev an t work as a restaurant manager/owner because these jobs required him to perform e x e rtio n a l and/or nonexertional demands "significantly beyond his established residual fu n ctio n al capacity." (Tr. 506) Step 5 involves a determination of whether the claimant is able to make an a d ju s tm e n t to other work, given his age, education and work experience. Id., §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If so, benefits are denied; if not, benefits are a w a rd e d . Id. After hearing the testimony of a vocational expert, the ALJ determined that P la in tif f could have made an adjustment to other work. (Tr. 506)

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IV .

L e g a l Analysis: A. S ta n d a r d of Review

In reviewing the Commissioner's decision, this Court must determine whether th e re is substantial evidence in the administrative record to support the decision. 42 U .S .C . § 405(g). This review function is limited, and the Commissioner's decision must b e affirmed "if the record contains substantial evidence to support it." Edwards v. B a rn h a rt, 314 F.3d 964, 966 (8th Cir. 2003). "Substantial evidence is evidence that a re a so n a b le mind would find adequate to support the ALJ's conclusion." Nicola v. Astrue, 4 8 0 F.3d 885, 886 (8th Cir. 2007). The Court "must consider the evidence which detracts f ro m the Commissioner's decision, as well as the evidence in support of the decision," but th e decision cannot be reversed, "simply because some evidence supports a conclusion o th e r than that of the Commissioner." Pelkey v. Barhart, 433 F3d 575, 578 (8th Cir. 2 0 0 6 ). If it is possible to draw two inconsistent positions from the evidence and one of th o s e positions represents the Commissioner's findings, then the Court must affirm the d e c is io n of the Commissioner. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007) (citatio n s omitted). B. P la in tiff's Residual Functional Capacity

T h e Plaintiff argues that the ALJ's RFC analysis is contrary to the opinions of his tre a tin g physicians. The Defendant contends that the ALJ considered all of the evidence

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o n the record and the evidence as a whole supports the ALJ's RFC assessment. (#10 at p. 6 ) The ALJ's RFC assessment is supported by substantial evidence. T h e ALJ "bears the primary responsibility for assessing a claimant's residual f u n c tio n a l capacity based on all relevant evidence." Roberts v. Apfel, 222 F.3d 466, 469 (8 th Cir. 2000). Relevant evidence includes "medical records, observations of treating p h ys ic ia n s and others, and an individual's own description of his limitations." McKinney v . Apfel, 228 F.3d 860, 863 (8th Cir. 2000). Some medical evidence must support the R F C determination. Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Plaintiff complains that the ALJ ignored the diagnosis of moderate to severe o b sess ive-c o m p u lsiv e disorder by Paula Lynch, M.D. and a consultative examiner. (Tr. 2 7 1 -8 2 , 342) The ALJ's opinion, however, specifically acknowledges that Plaintiff had b e e n treated for obsessive-compulsive disorder. (Tr. 499) The medical records indicate D r. Lynch treated Plaintiff twelve times between February, 2001 and June, 2002 and d ia g n o s e d Plaintiff with generalized anxiety disorder and obsessive-compulsive disorder. (Tr. 271-82) At no time, however, did Dr. Lynch see any evidence of major affective syn d rom e, uncontrolled anxiety, psychosis, cognitive disorder, bipolar spectrum disorder, a g g re ss io n , thought disorder, or perceptual disorder syndrome, and at no time did she e x p re ss an opinion that Plaintiff was unable to work because of his psychological im p airm en t s. (Tr. 271-82)

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A t several appointments, Dr. Lynch noted that Plaintiff had either altered the d o sag e or stopped taking his prescribed medications. (Tr. 272-76, 278-79) Further, Dr. L yn c h noted that Plaintiff frequently missed appointments and opted for visits every two m o n ths instead of recommended monthly visits. (Tr. 272) Roth v. Shalala, 45 F.3d 279, 2 8 2 (8th Cir. 1995) ("[f]ailure to follow a prescribed course of remedial treatment without g o o d reason is grounds for denying an application for benefits"). The ALJ considered Dr. Lynch's assessments along with those of Plaintiff's other trea tin g physicians, Dr. Richard Owings, Dr. Greg Kaczenski, Dr. Tom Koehler, and Dr. B ra n d o n Wall. (Tr. 499-502) None of Plaintiff's other treating physicians expressed the o p in i o n that Plaintiff was unable to work because of his psychological impairments, in c lu d in g his obsessive-compulsive personality disorder. Dr. Wall, who treated Plaintiff between October, 2002 and July, 22, 2004, assessed P lain tiff 's ability to do work-related activities at the request of the ALJ. Dr. Wall re p o rte d that Plaintiff had no limitations on his ability to understand and remember short, s im p le instructions; carry out short, simple instructions; understand and remember d e ta ile d instructions; carry out detailed instructions; or make judgments on simple workre la te d decision. (Tr. 555) Further, Dr. Wall found Plaintiff's impairments did not have a n y affect on his ability to respond to supervision, co-workers, or work pressures in a w o rk setting. (Tr. 556) The last time Dr. Wall saw the Plaintiff, the Plaintiff reported th in g s were going well and he had "learned good coping strategies to deal with his

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a n x ie ty, he had lowered the dose of his meds [sic], his level of functioning had im p rov ed ." (Tr. 556) On July 3, 2002, Brad Williams, Ph.D., a non-treating agency psychologist, rev iew ed Plaintiff's medical records and concluded Plaintiff was able to perform work w h e re interpersonal contact is routine but superficial, the complexity of tasks is learned b y experience, the use of judgment is exercised within limits, and supervision required is little for routine but detailed for non-routine tasks. (Tr. 332) On December 13, 2002, Dr. W illia m s again reviewed the Plaintiff's mental RFC and came to the same conclusion. (Tr. 297) Dr. Kathryn Gale affirmed the assessment on March 3, 2003. (Tr. 297) After reviewing all of the evidence on the record, the ALJ concluded that Plaintiff w o u ld require a work setting where interpersonal contact is routine but superficial, the c o m p lex ity of tasks is learned and performed by experience, the use of judgment is req u ired within limits, and little supervision is required for routine matters with more d e taile d supervision for non-routine matters. (Tr. 503) The ALJ's conclusion is s u p p o rte d by substantial evidence. P la in tif f also argues that additional limitations should have been placed on P la in tif f on the basis of global assessment function ("GAF") scores of 50 to 60 assessed to Plaintiff by Dr. Lynch while she was treating him.3 The Commissioner has declined to

Plaintiff cites two cases in support of his claim that an ALJ must give special c o n sid e ra tio n to a treating physician's GAF findings. (#10 at p. 18) Neither of the cases P la in tif f cites, however, support this assertion. 9

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e n d o rs e the GAF scales to evaluate Social Security claims. See 65 Fed.Reg. 50746, 5 0 7 6 4 -6 5 (Aug. 21, 2000). Thus, an ALJ may afford greater weight to medical evidence a n d testimony than to a GAF score when the evidence requires it. See Hudson v. B a r n h a r t, 345 F.3d 661, 666 (8th Cir. 2003). The ALJ did not err in assigning greater w e ig h t to the medical evidence and testimony in this case than to the various GAF scores a s s ig n e d to Plaintiff. Plaintiff claims that the ALJ also disregarded a "doctor's chart note" indicating th a t he "continued to suffer from effusion" in his right knee. (#10 at p. 17) However, the re c o rd indicates that the notation about effusion came from a radiology report from N o v e m b e r 20, 2002 noting "[t]here is only a small joint effusion demonstrable. No other s ig n if ic a n t abnormality is seen." (Tr. 377) The ALJ acknowledged that Plaintiff has d e g e n era tiv e joint disease in his right knee but notes the Plaintiff has not "required, s o u g h t and/or received any ongoing medical care and treatment for this impairment since N o v e m b e r 2002." (Tr. 505) A consultative examiner noted Plaintiff had normal range o f motion in both of his knees and found no physical abnormalities. (Tr. 340, 342) The A L J 's assessment is reasonable in light of the evidence in the record. T h e ALJ considered all of the evidence on the record in this case, not just the e v i d e n c e of non-examining and non-treating physicians. (Tr. 499-503) He also c o n sid e re d the Plaintiff's testimony, Plaintiff's daily activities, and the vocational

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asse ssm en t completed by Bob White at the request of Plaintiff's attorney. (Tr. 504-505) The ALJ's RFC assessment is based on substantial evidence. C. The Hypotheticals

P la in tif f argues that the ALJ failed to include additional non-exertional restrictions re la te d to his anxiety, obsessive-compulsive personality disorder, GAF scores, and h ea rin g loss in his hypotheticals to the vocational expert ("VE"). (#10 at p. 16) Defendant contends that the ALJ appropriately accounted for the impairments supported b y substantive evidence. (Tr. 503) A hypothetical posed to a vocational expert is proper if it sets forth the im p a irm e n ts supported by substantial evidence in the record and accepted by the ALJ as tru e . Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005) (quoting Hunt v. Massanari, 2 5 0 F.3d 622, 625 (8th Cir. 2001). "Even though the residual functional capacity a ss e ss m e n t draws from medical sources for support, it is ultimately an administrative d e te rm in a tio n reserved to the Commissioner." Cox v. Astrue, 495 F.3d 614, 620-21 (8th C ir. 2007) (citing 20 C.F.R. §§ 416.927(e)(2), 416.946 (2006)). The ALJ's assessment of Plaintiff's hearing loss is also supported by substantial e v id e n c e. The ALJ acknowledged that Plaintiff suffers from ninety-five percent hearing loss in his left ear and included this impairment in his hypotheticals. (Tr. 593-94) Plaintiff complains that, in spite of the fact the hypotheticals acknowledged his hearing lo ss , the ALJ did not include non-exertional limitations specifically based on his ability to

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e n g a g e in face-to face conversation and use the telephone with his right ear. (Tr. 566, 5 7 8 ) At least in part because of Plaintiff's hearing loss, the ALJ limited his hypotheticals to a work setting where interpersonal contact is routine but superficial, the complexity of tas k s is learned and performed by experience, the use of judgment is required within lim its , and little supervision is required for routine matters with more detailed supervision f o r non-routine matters. (Tr. 503) P la in tif f notes that Bob White, a vocational specialist Plaintiff hired to give a v o c a tio n a l assessment, concluded that Plaintiff had additional restrictions related to his o b s e ss iv e -c o m p u l s iv e personality disorder. Specifically, Mr. White concluded that P la in tif f 's physical and psychological impairments affected his dependability; reliability; ju d g m e n t; ability to accept supervision; ability to work with the public, coworkers and s u p e r v is o r s; and relate predictably in social situations. The ALJ never adopted these lim ita tio n s in his findings, however, and concluded, based on all of the evidence, that P la in tif f 's psychological impairments would only minimally affect his ability to work. As set forth above, substantial evidence in the record as a whole supports the ALJ's c o n c lu s io n . D. D e v e lo p m e n t of the Record

P la in tif f claims that the ALJ failed to properly develop the record. Specifically, P lain tiff argues that the ALJ should have ordered further testing or hired a medical expert

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to help assess Plaintiff's medical condition, particularly Plaintiff's obsessive-compulsive p erso n ality disorder. (#10 at pp. 17-18) It is the ALJ's duty to develop the record fully and fairly. Snead v. Barnhart, 360 F .3 d 834, 836-37 (8th Cir. 2004). However, an ALJ does not have to seek additional c la rif yin g statements from treating physicians unless a crucial issue is undeveloped. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) citing Snead v. Barnhart, 360 F.3d 8 3 4 , 838 (8th Cir. 2004). "[C]ontacting a treating physician is necessary only if the d o c to r's records are `inadequate for us to determine whether [the claimant is] disabled' s u c h as `when the report from your medical source contains a conflict or ambiguity that m u s t be resolved, the report does not contain all the necessary information, or does not a p p e a r to be based on medically acceptable clinical and laboratory diagnostic te c h n iq u e s.'" Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir. 2005) (citing 20 C.F.R. §§ 404.1512(e), 416.912(e)). O n remand, the Court noted that none of Plaintiff's treating physicians had c o m p le te d a mental or physical RFC assessment for the time period in question and o rd e re d the ALJ to address interrogatories to the physicians who had evaluated and tre a te d plaintiff asking them for an RFC assessment regarding plaintiff's capabilities d u rin g the time in question. (Tr. 525) The ALJ complied with the Court's order by s e n d in g interrogatories to Plaintiff's treating physicians. (Tr. 539-554) He received a re s p o n s e from only one of Plaintiff's treating physicians, Dr. Wall. (Tr. 555) The ALJ

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u s e d the RFC assessment from Dr. Wall and the other medical records to determine w h e th e r Petitioner was disabled during the relevant time period. There is no evidence that Plaintiff was prejudiced by the ALJ's decision not to hire a medical expert or order additional testing. Any additional testing likely would not have b e e n relevant to Plaintiff's condition during the closed period at issue in this case, and the R F C assessment from Dr. Wall gave the ALJ adequate evidence to determine whether P la in tif f was disabled. Accordingly, the Commissioner's decision should not be reversed. V. C o n c lu s io n : T h e Court has reviewed all of the evidence in the record, including all of the m ed ical evidence, the agency physicians' assessments, and the hearing transcripts. There is substantial evidence in the record as a whole to support the Commissioner's conclusion that Plaintiff had the residual functional capacity to make an adjustment to other work a v a ila b le in the local, regional, and national economy. Accordingly, Plaintiff's appeal is DENIED. The Clerk is directed to close the c a se , this 26th day of January, 2009. ___________________________________ U N IT E D STATES MAGISTRATE JUDGE

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