Strickland v. Social Security Administration

Filing 13

MEMORANDUM AND ORDER affirming the final determination of the Commissioner and dismisses Plaintiff's complaint with prejudice. Signed by Magistrate Judge Beth Deere on 2/12/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS W E S T E R N DIVISION F IN U S A. STRICKLAND v. M I C H A E L J. ASTRUE, C o m m iss io n e r , Social Security Administration, M E M O R A N D U M AND ORDER P la in tif f , Finus A. Strickland, has appealed the final decision of the Commissioner of th e Social Security Administration to deny his claim for Disability Insurance benefits and S u p p le m e n ta l Security Income, based on disability. Both parties have submitted appeal b rie f s and the case is ready for decision. T h e Court's function on review is to determine whether the Commissioner's decision is supported by substantial evidence on the record as a whole and free of legal error. Long v. C h a te r, 108 F.3d 185, 187 (8th Cir. 1997); see also, 42 U.S.C. § 405(g). Substantial ev iden ce is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Reynolds v. Chater, 82 F.3d 2 5 4 , 257 (8th Cir. 1996). In assessing the substantiality of the evidence, the Court must consider evidence that d etracts from the Commissioner's decision as well as evidence that supports it; the Court m a y not, however, reverse the Commissioner's decision merely because substantial evidence w o u ld have supported an opposite decision. Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2 0 0 4 ); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). " D is a b ility" is the "inability to engage in any substantial gainful activity by reason of a n y medically determinable 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 of not less 4 :0 7 C V 0 1 2 2 8 BD P L A IN T IF F

DEFENDANT

th a n 12 months." 42 U.S.C. § 423(d)(1)(A). A "physical or mental impairment" is "an im p a irm e n t that results from anatomical, physiological, or psychological abnormalities w h ich are demonstrable by medically acceptable clinical and laboratory diagnostic tech n iqu es. " 42 U.S.C. § 423(d)(3). P la in tif f alleged that he was limited in his ability to work by high blood pressure, b a c k problems, loss of memory, bad feet and wrists, and diabetes. (Tr. 114) The C o m m is s io n e r found that he was not disabled within the meaning of the Social Security Act. The only issue before this Court is whether the Commissioner's decision that Plaintiff was n o t disabled within the meaning of the Act is supported by substantial record evidence. A f te r conducting an administrative hearing, the Administrative Law Judge 1 (ALJ) c o n c lu d e d that Plaintiff had not been under a disability within the meaning of the Social S e c u rity Act at any time through March 28, 2007, the date of her decision. (Tr. 25) On N o v e m b e r 5, 2007, the Appeals Council received and considered additional evidence and th e n denied Plaintiff's request for a review of the ALJ's decision, making the ALJ's decision th e final decision of the Commissioner. (Tr. 5-7) Plaintiff then filed his complaint initiating th is appeal. (Docket #2) After consideration of the record as a whole, the Court finds that th e decision of the Commissioner is supported by substantial evidence. P la in tif f was 31 years old at the time of the hearing. (Tr. 595) He testified that he c o m p lete d the tenth grade in school.2 Id. He has past relevant work as a groundskeeper, c e rtif ie d nurse's assistant and production helper. (Tr. 25)

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The Honorable Penny M. Smith.

On two forms, he indicated that he completed the eleventh grade. (Tr. 120, 146) It makes little difference; either would qualify as a "limited" education. 20 C.F.R. §§ 404.1564(b)(3), 4 1 6 .9 6 4 (b )(3 ) (2006). 2

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T h e ALJ considered Plaintiff's impairments by way of the required five-step s e q u e n tia l evaluation process. The first step involves a determination of whether the claim an t is involved in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i); 4 1 6 .9 2 0 (a )(4 )(i) (2006). If the claimant is, benefits are denied, regardless of medical c o n d itio n , age, education or work experience. Id. at §§ 404.1520(b); 416.920(b). 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). S tep 3 involves a determination of whether the severe impairment(s) 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 Listing, then a residual functional capacity a s s e s s m e n t is made. Id., §§ 404.1520(a)(4); 416.920(a)(4). This residual functional c a p a c ity assessment is utilized at Steps 4 and 5. Id. S te p 4 involves a determination of whether the claimant has sufficient residual f u n c tio n a l capacity to perform past relevant work. Id., §§ 404.1520(a)(4)(iv); 4 1 6 .9 2 0 (a )( 4 )( iv ). If so, benefits are denied. Id. S te p 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 claimant's 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. T h e ALJ found that Plaintiff had not engaged in substantial gainful activity since his a lle g e d onset date. (Tr. 17) She found that Plaintiff had "severe" impairments, including 3

d ia b e te s mellitus, kidney stones, obesity, and an adjustment disorder,3 but that he did not h a v e an impairment or combination of impairments that met or equaled a Listing. (Tr. 171 8 ) She judged that Plaintiff's allegations regarding his limitations were not totally credible. (Tr. 19) T h e ALJ found that Plaintiff retained the residual functional capacity for medium w o rk with additional restrictions. The limits included an inability to climb scaffolds, ladders a n d ropes; an inability to be directly involved with the public; a requirement that the tasks p erf o rm ed not be complex, require little judgment and simple reading skills, and where s u p e rv is io n be direct, specific, and concrete. (Tr. 18) Based on the testimony of a v o c a tio n a l expert, she found that Plaintiff was able to perform his past relevant work as a g ro u n d s k e e p er as he had performed it. (Tr. 24-25) Consequently, the ALJ concluded that P la in tif f was not disabled. Id. P lain tiff argues that the ALJ erred by failing to evaluate his depression according to the psychiatric review technique. (Br. 21-23) At the administrative law judge hearing and Appeals Council levels, the w ritten decision issued by the administrative law judge or Appeals Council m u s t incorporate the pertinent findings and conclusions based on the te c h n iq u e . The decision must show the significant history, including ex am in atio n and laboratory findings, and the functional limitations that were c o n sid e re d in reaching a conclusion about the severity of the mental im p a irm e n t(s ). The decision must include a specific finding as to the degree o f limitation in each of the functional areas described in paragraph (c) of this s e c ti o n . 2 0 C.F.R. §§ 404.1520a(e)(2); 416.920a(e)(2) (2001) (2006). The referenced functional areas are activities of daily living; social functioning; c o n c e n tra tio n , persistence, or pace and episodes of decompensation. 20 C.F.R. §§ 404.1520a(c)(3); 416.920a(c)(3) (2006).

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She found that Plaintiff's hypertension and hyperlipidemia were not "severe." (Tr. 17) 4

A s noted, the ALJ found that Plaintiff had an adjustment disorder, which she found to b e a "severe" impairment. (Tr. 17) In the opinion, she wrote: T h e claimant's mental impairments have not caused a substantial loss in his ab ility to respond appropriately to supervision, coworkers, and usual work s itu a tio n s (Social Security Ruling 85-15). On August 29, 2005, the claimant v is ite d the Counseling Associates Clinic (Exhibit 28F, page 6). The c la im a n t's counselor reported that the claimant said: "my lawyer told me I n e e d ed to come in" (Exhibit 28F, page 6). The claimant had a diagnosis of an a d ju stm e n t disorder with depressed mood and a borderline personality d is o rd e r. Thereafter, the claimant had only one follow up appointment for c o u n se lin g . The claimant did not attend a scheduled appointment for October 2 4 , 2005 (Exhibit 31F, page 2). T h u s, the record shows that the claimant has only sought mental health tre a tm e n t at the suggestion of his lawyer. He is not receiving regular treatment f o r depression. If the claimant truly had disabling mental impairments, he lik e ly would have sought treatment on his own. (T r. 23-24) A lth o u g h she did not utilize the psychiatric review technique, she did comment on P la in tif f 's activities of daily living. Under the circumstances presented in this case, the f a ilu re to utilize the psychiatric review technique was harmless error. See Hardy v. Chater, 6 4 F.3d 405, 408 (8th Cir. 1995)(on record before ALJ, completion of [then required] P syc h iatric Review Technique Form was little more than formality); Montgomery v. Shalala, 3 0 F.3d 98, 100-01 (8th Cir. 1994)(suggesting that failure to complete Psychiatric Review T e c h n iq u e Form could, in certain cases, be harmless). Next, Plaintiff argues that the ALJ erred at Step 3 of the sequential evaluation process b y not discussing whether he met Listing 12.04 and by not finding that he met that Listing. (Br. 23-25) Although it is preferable that ALJs address a specific listing, failure to do so is n o t reversible error if the record supports the overall conclusion, as it does in th is case. See Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir.2001)(holding a f a ilu re to explain why the claimant did not meet the listing for rheumatoid a rth ritis was not an error); Briggs v. Callahan, 139 F.3d 606, 609 (8th C ir.1 9 9 8 ) (stating that "although the ALJ did not specifically discuss [the] 5

c o n d itio n in the context of listing 112.05(D)," the record supported the co n clus ion ). P e p p e r ex rel. Gardner v. Barnhart, 342 F.3d 853, 855 (8th Cir. 2003). The Listing in question reads as follows: 1 2 .0 4 Affective Disorders: Characterized by a disturbance of mood, ac co m p an ied by a full or partial manic or depressive syndrome. Mood refers to a prolonged emotion that colors the whole psychic life; it generally involves e ith e r depression or elation. T h e required level of severity for these disorders is met when the req u irem en ts in both A and B are satisfied, or when the requirements in C are s a tis f ie d . A . Medically documented persistence, either continuous or in te rm itte n t, of one of the following: 1 . Depressive syndrome characterized by at least four of the following: a . Anhedonia or pervasive loss of interest in almost all activities; or b . Appetite disturbance with change in weight; or c . Sleep disturbance; or d . Psychomotor agitation or retardation; or e . Decreased energy; or f . Feelings of guilt or worthlessness; or g . Difficulty concentrating or thinking; or h . Thoughts of suicide; or i. Hallucinations, delusions or paranoid thinking; or 2 . Manic syndrome characterized by at least three of the following: a . Hyperactivity; or b . Pressure of speech; or c . Flight of ideas; or d . Inflated self-esteem; or e . Decreased need for sleep; or f . Easy distractibility; or g . Involvement in activities that have a high probability of painful c o n se q u e n ce s which are not recognized; or h . Hallucinations, delusions or paranoid thinking; or 3 . Bipolar syndrome with a history of episodic periods manifested by th e full symptomatic picture of both manic and depressive syn d ro m e s (and currently characterized by either or both s yn d r o m e s ) ; AND B . Resulting in at least two of the following: 1 . Marked restriction of activities of daily living; or 2 . Marked difficulties in maintaining social functioning; or 3 . Marked difficulties in maintaining concentration, persistence, or p a c e; or 4 . Repeated episodes of decompensation, each of extended duration; 6

OR C . Medically documented history of a chronic affective disorder of at le a st 2 years' duration that has caused more than a minimal lim ita tio n of ability to do basic work activities, with symptoms o r signs currently attenuated by medication or psychosocial s u p p o rt, and one of the following: 1 . Repeated episodes of decompensation, each of extended d u ra tio n ; or 2 . A residual disease process that has resulted in such marginal a d ju s tm e n t that even a minimal increase in mental d e m a n d s or change in the environment would be p re d ic te d to cause the individual to decompensate; or 3 . Current history of 1 or more years' inability to function o u ts id e a highly supportive living arrangement, with an in d ica tio n of continued need for such an arrangement. 2 0 C.F.R. Pt. 404, Subpart P, App. 1 (2006). P la in tif f contends that his GAF of 40 is below what is necessary to meet the f u n c tio n a l limitations of the "B" criteria of the Listing. (Br. 25) That argument must fail. GAF does not have a direct correlation to the severity requirements in mental disorders lis tin g s . 65 Fed.Reg. 50746, 50764-65 (2000). Furthermore, the GAF was assigned by M a rk Coffman, L.P.C.4 (Tr. 468, Br. 17) A licensed professional counselor is not an " a c c e p tab le medical source" upon which the ALJ may rely to establish a medically d e te rm in a b le impairment. 20 C.F.R. §§ 404.1513(a), 416.913(a) (2006). He also argues that the "A" criteria are met by his diagnoses and testimony. (Br. 25) A diagnosis alone does not establish that a Listing has been met. Harris v. Barnhart, 356 F .3 d 926, 929 (8th Cir. 2004); 20 C.F.R. §§ 404.1525(d); 416.925(d) (2006). (It appears th a t the diagnoses were also provided by Counselor Coffman.) Plaintiff may not rely on his tes tim o n y, either, since the question of whether a plaintiff meets a Listed impairment is s tric tly a medical determination. Cockerham v. Sullivan, 895 F.2d 492, 496 (8th Cir. 1990).

Licensed Professional Counselor. Neal M. Davis, Medical Abbreviations: 15,000 C o n v en i en c es at the Expense of Communications and Safety, 188 (10th ed. 2001). 7

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P la in tif f has the burden of showing that he met a Listing. Pyland v. Apfel, 149 F.3d 873, 8 7 7 (8th Cir. 1998). He failed to meet that burden. F in a lly, Plaintiff contends that the ALJ erred in his physical residual functional c a p ac ity determination. (Br. 25-30). The ALJ must determine the claimant's residual f u n c tio n a l capacity based on all relevant evidence, including medical records, observations o f treating physicians and others, and claimant's own descriptions of his limitations. Tellez v . Barnhart, 403 F.3d 953, 957 (8th Cir. 2005); Baldwin v. Barnhart, 349 F.3d 549, 556 (8th C ir. 2003); Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). Before determining a claimant's residual functional capacity, the ALJ first must evaluate the claimant's c re d ib ility. Pearsall, 274 F.3d at 1218. Plaintiff faults the ALJ for noting that one treating physician had made a record of P la in tif f 's drug-seeking behavior, contending that there was objective evidence to back up h is complaints of pain. (Br. 27) This was not an isolated instance, however. As far back as 1 9 9 8 , there is a doctor's notation of a history of narcotics abuse. (Tr. 291) Plaintiff had b e e n seen at the emergency room the night before, and was to have seen his urologist, but re tu rn e d to the emergency room again. The notation indicates that he never kept urology a p p o in tm e n ts . Id. The doctor noted "avoid further narcotics here." Id. (Emphasis in o r ig i n a l .) In 2002, another doctor observed, "Patient complains of pain out of proportion to e x a m in a tio n ." (Tr. 334) "Patient always wants more pain medicine and this has become an issue with him." (Tr. 335) In February of 2002, his treating urologist noted: S U B J E C T IV E : Mr. Strickland comes in today complaining of pain again. Mr. Strickland, his wife, and I discussed his pain at length. This has been an o n g o in g issue with Mr. Strickland and it is hard to diagnose exactly what is g o in g on. The patient has had several CT scans, ureteroscopies and one E S W L procedure and he says that this has not made any change in his pain. 8

T h e re seems to be no anatomical abnormality other than his stone disease. The patient has had several stents, removals of stones, removal of stents, and h e says he has constant, continuing left flank pain that shoots down toward his g ro in with some mild nausea and vomiting from time to time. With the stent in , he also has a little bit of urgency and frequency. I have given him various pain medicines. I personally know that his ureter is a s clear as can be up to the UPJ. We shot a retrograde and it showed a totally c le a r UPJ and renal pelvis. We put in a stent. He says the pain is the same. This is a troublesome case. A f te r discussing this patient's case at length, I gave him several boxes of s a m p l e s of Celebrex, Roxicet, and antibiotics. This is a very tough case and I d o not have a really good idea of what is going on as far as his chronic pain. Most patients have improvement after removal of the stone, but he claims that e v e n after all of his ureteroscopies, stone removals, stents, ESWLs, he has had n o change in his pain, just chronic constant pain. I have decided we need to d e te rm in e if his left kidney is blocked off. He has a stent in and it should not b e . I have ordered a Lasix renal scan to evaluate for left obstruction. If it is n o t, I think I am going to send him to a chronic pain doctor. I have told him th is and they understand that. (T r. 343) T h e following day, he wrote: I saw Mr. Strickland today. He had very questionable drug seeking behavior. I am getting worried about him. Apparently he has gone to the Russellville E R complaining tearfully of pain and wanting IV narcotics. I talked to the e m e r g e n c y room doctor there and he reports that Mr. Strickland has shown up th e re many times for multiple reasons, always wanting large narcotics for his p a in . . . . . (Tr. 342) Plaintiff was terminated as a patient by the doctors in the urology clinic. (Tr. 341) Under the circumstances, the ALJ properly discussed Plaintiff's behavior and his doctors' re a c tio n to it. P la in tif f argues that the ALJ impermissibly relied on opinions of state agency p h ysic ian s who did not examine him. (Br. 30) The ALJ noted the findings of the two state a g e n cy physicians, and remarked, "These opinions can only serve to add to the conclusions r e a c h e d above." (Tr. 24) The ALJ was required to consider their findings. 9

A d m in istra tiv e law judges are not bound by any findings made by State a g e n cy medical or psychological consultants, or other program physicians or p syc h o lo g ists. However, State agency medical and psychological consultants a n d other program physicians and psychologists are highly qualified p h ysic ian s and psychologists who are also experts in Social Security disability e v a lu a tio n . Therefore, administrative law judges must consider findings of S ta te agency medical and psychological consultants or other program p h ysic ian s or psychologists as opinion evidence, except for the ultimate d e te rm in a tio n about whether you are disabled. . . . . 2 0 C.F.R. §§ 404.1527(f)(2)(i); 416.927(f)(2)(i) (2006) (emphasis added); accord, Social S e c u rity Ruling 96-6p. There was a lack of restrictions on Plaintiff's activities by his physicians. See Raney v . Barnhart, 396 F.3d 1007, 1010 (8th Cir. 2005) (none of claimant's treating physicians o f f e re d opinion she was so impaired or disabled she could not work any job); Hensley v. B a r n h a r t, 352 F.3d 353, 357 (8th Cir. 2003)(no functional restrictions on activities is in c o n sis ten t with claim of disability); Depover v. Barnhart, 349 F.3d 563, 567 (8th Cir. 2 0 0 3 )(A L J may consider absence of such opinion by treating physicians); Baldwin v. B a r n h a r t, 349 F.3d 549, 557 (8th Cir. 2003)(none of claimant's independent physicians re stric ted or limited his activities); Tennant v. Apfel, 224 F.3d 869, 871 (8th Cir. 2000) (a b se n c e of physician-ordered restrictions). To the contrary, at least one physician urged P la in tif f to be as active as possible. (Tr. 556) P la in tif f 's residual functional capacity argument seeks to place the burden of proof on the Commissioner. It is the claimant's burden, and not the Social Security Commissioner's b u rd e n , to prove the claimant's residual functional capacity. Goff v. Barnhart, 421 F.3d 785, 7 9 0 (8th Cir. 2005); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); Masterson v . Barnhart, 383 F.3d 731, 737 (8th Cir. 2004); Baldwin v. Barnhart, 349 F.3d 549, 556 (8th C ir. 2003); Pearsall, 274 F.3d at 1217; Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2 0 0 0 ); Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995).

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It is not the task of this Court to review the evidence and make an independent d e c is io n . Neither is it to reverse the decision of the ALJ because there is evidence in the re c o rd which contradicts his findings. The test is whether there is substantial evidence on th e record as a whole which supports the decision of the ALJ. E.g., Mapes v. Chater, 82 F .3 d 259, 262 (8th Cir. 1996); Pratt v. Sullivan, 956 F.2d 830, 833 (8th Cir. 1992). T h e Court has reviewed the entire record, including the briefs, the ALJ's decision, the tra n sc rip t of the hearing and the medical and other evidence. There is ample evidence on the re c o rd as a whole that "a reasonable mind might accept as adequate to support [the] c o n c lu s io n " of the ALJ in this case. Richardson v. Perales, 402 U.S. at 401; see also R e u t te r ex rel. Reutter v. Barnhart, 372 F.3d 946, 950 (8th Cir. 2004). The Commissioner's d ec isio n is not based on legal error. A c c o rd in g ly, the Court hereby affirms the final determination of the Commissioner a n d dismisses Plaintiff's complaint with prejudice. IT IS SO ORDERED, this 12th day of February, 2009.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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