Norris v. Social Security Administration

Filing 12

MEMORANDUM OPINION AND ORDER denying Plaintiff's appeal and directing the Clerk to close the case. Signed by Magistrate Judge Beth Deere on 5/28/09. (hph)

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IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS W E S T E R N DIVISION S H E L B Y J. NORRIS V. NO. 4:08CV00352-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 Shelby J. Norris brings this action for review of a final decision of the C o m m is s io n e r of the Social Security Administration ("Commissioner") denying her 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 Title XVI of the Act. I. A d m in is tr a tiv e Proceedings: P la in tif f protectively filed her application for DIB and SSI on September 23, 2002, a lle g in g disability since January 2, 1994. (Tr. 148) After a hearing, the Administrative L a w Judge ("ALJ") issued an unfavorable decision. (Tr. 14, 73-85) The Appeals C o u n c il granted review of the decision and vacated and remanded the Plaintiff's case for f u rth e r consideration. (Tr. 14, 39-41) On remand, the case was reassigned to a new ALJ 1 1 T h e Honorable Mark S. Anderson. 1 who held a second hearing on July 18, 2006. (Tr. 480) Ms. Norris was present at the h e a rin g , along with her attorney. (Tr. 14) O n October 26, 2006, the ALJ issued a decision finding that Plaintiff was not d is a b le d under the Act and denying her claim for benefits. (Tr. 14-23) On February 25, 2 0 0 8 , the Appeals Council denied Plaintiff's request for review, making the ALJ's d e c is io n the final decision of the Commissioner. (Tr. 5-8) Plaintiff seeks judicial review f ro m this decision under 42 U.S.C. 405(g). II. B ackground: A t the time of the hearing, Plaintiff was forty-seven years old and lived by herself. (Tr. 23, 447) She had a high school education and past relevant work as a waitress, data e n try clerk, bartender, accounts receivable clerk, babysitter, and fast food worker. (Tr. 4 0 9 , 464) At the time of the hearing, Plaintiff was working approximately twenty hours p e r week at Taco Bell. (Tr. 409, 445) She was not taking any prescription medication, b u t she was taking aspirin and using hot and cold bags for pain. (Tr. 454) 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 re impairment; (3) if so, whether the impairment (or combination of impairments) m e t 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) 2 prevented the claimant from doing past relevant work; and (5) if so, whether the im p a irm e n t (or combination of impairments) prevented the claimant from performing any o th e r jobs available in significant numbers in the national economy. 20 C.F.R. 404.1520(a)-(g), 416.920(a)-(g) (2005). The ALJ found that in spite of the fact Plaintiff was working twenty hours per w e e k at a fast food restaurant, her work did not constitute substantial gainful activity and that she had not engaged in substantial gainful activity since her alleged onset date. (Tr. 1 4 , 22) The ALJ found that Plaintiff had been treated for back pain and mood and d e lu s io n a l disorders but did not have a "listed" impairment, or combination of im p a irm e n ts. (Tr. 22) The ALJ determined that Plaintiff did have the residual functional c a p a c ity ("RFC") to perform her past work as a fast food worker. (Tr. 23) He also f o u n d , based on the testimony of a vocational expert ("VE"), that Plaintiff could perform w o rk as an office helper, and the VE testified that there are a significant number of office h e lp e r jobs available in the national economy. (Tr. 18) IV . A n a ly sis : 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). "Substantial evidence is evidence that a reasonable mind would find a d e q u a te to support the ALJ's conclusion." Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 3 2007). In reviewing the record as a whole, the Court "must consider the evidence which d e tra c ts from the Commissioner's decision, as well as the evidence in support of the d e c is io n ," but the decision cannot be reversed, "simply because some evidence supports a c o n c lu s io n other than that of the Commissioner." Pelkey v. Barhart, 433 F.3d 575, 578 (8 th Cir. 2006). B. R e s id u a l Functional Capacity " E v e n though the RFC assessment draws from medical sources for support, it is u ltim a te ly an administrative determination reserved to the Commissioner." Cox v. Astrue, 4 9 5 F.3d 614, 619-620 (8th Cir. 2007) (citing 20 C.F.R. 416.927(e)(2), 416.946 (2 0 0 6 )). "The ALJ should determine a claimant's RFC based on all the relevant e v id e n c e , including the medical records, observations of treating physicians and others, a n d an individual's own description of his limitations." Lacroix v. Barnhart, 465 F.3d 8 8 1 , 887 (8th Cir. 2006) (citing Strongson v. Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2 0 0 4 )). Plaintiff claims the ALJ's findings regarding her mental RFC are not supported by th e medical evidence.2 (#9 at p. 8) Plaintiff also claims the ALJ gave more weight to the P la in tif f does not challenge the ALJ's physical RFC assessment in this appeal. In h e r brief, Plaintiff acknowledged that, "the objective medical evidence does not support th e claim for physical ailments alleged by the claimant and that is conceded." (#9 at p. 5) 2 4 consultative examination opinion of Dr. Boyd rather than the treating source medical o p in io n s and the opinions of the other consulting sources. (#9 at p. 11) 1. T h e Medical Evidence O n October 12, 1993, prior to Plaintiff's alleged onset date, Lisa Beisel, M.D., at P ro f e s s io n a l Counseling Associates, diagnosed Plaintiff with post traumatic stress d is o rd e r and a major depressive episode. (Tr. 206) Dr. Beisel assigned Plaintiff a Global A s se s s m e n t Functioning ("GAF")3 rating of between 60 and 70. (Tr. 206) On February 9 , 1994, Betty Bessent, a Licensed Clinical Social Worker at Professional Counseling A s so c ia te s, reported that Plaintiff was receiving "periodic supportive therapy but was not b e in g prescribed any medication." (Tr. 201) On March 31, 1994, Ms. Bessent noted that P la in tif f was being seen "irregularly" and assigned Plaintiff a GAF score of 56. (Tr. 200) The medical records indicate Plaintiff attended approximately ten counseling sessions at P ro f e s s io n a l Counseling Associates between October 4, 1993 and May 12, 1994. On July 1 9 , 1994, Professional Counseling Associates officially terminated Plaintiff's case noting th a t they last saw her on May 12, 1994, when her condition was "improved." Plaintiff has n o t receive treatment for any mental condition since her treatment at Professional C o u n s e lin g Associates. "[T]he Global Assessment of Functioning Scale is used to report `the clinician's ju d g m e n t of the individual's overall level of functioning.'" Hudson ex rel. Jones v. B a rn h a r t, 345 F.3d 661, 662 n. 2 (8th Cir. 2003) (quoting Diagnostic and Statistical M a n u a l of Mental Disorders 32 (4th ed. Text Revision 2000)). 3 5 On November, 2, 2002, Plaintiff was evaluated by Dr. Anna M. Clark in relation to h e r applications for DIB and SSI. Dr. Clark noted that during her interview Plaintiff was u n d e rs ta n d a b le , had a "fair ability to concentrate, persist and keep pace," and did not e x h ib it two or more areas with significant limitations in adaptive functioning. (Tr. 2343 5 ) In spite of these findings, Dr. Clark assigned Plaintiff a GAF score of 40 and d ia g n o s e d her with amnestic disorder and mood disorder "due to head trauma," and p e rs e c u to ry type delusional disorder. (Tr. 234) O n April 7, 2003, Dr. Ken Counts evaluated Plaintiff in relation to her application f o r benefits. Dr. Counts stated that Plaintiff communicated adequately, seemed to get a lo n g well with others, and that her concentration, persistence, and pace were " u n re m a rk a b le " except for a "halting quality to her speech." (Tr. 239) Dr. Counts d ia g n o s e d Plaintiff with mood disorder and assigned her a GAF score of 40. He noted th a t Plaintiff did have "trust issues and some persecutory ideas." Dr. Counts opined, "it w o u ld be difficult for her to remember and carry out instructions in a work setting," and " s h e could have difficulty with supervision and co-workers." (Tr. 239) F in a lly, on August 31, 2004, Dr. Sam Boyd evaluated the Plaintiff. At the e v a lu a tio n , Plaintiff reported she had worked part-time from 1999-2001, after which she h a d worked part-time at a restaurant until it closed, then she had run a daycare in her h o m e for about a year. At the time of the interview with Dr. Boyd, she had been working f o r the past month as a bar tender on weekends. (Tr. 313) Dr. Boyd found that Plaintiff 6 did not "experience hallucinations, delusions, paranoia, or other psychotic thinking"; her a f f e c t was "full and stable"; and her mood was "euthymic." (Tr. 313-14) Dr. Boyd a d m in is te re d the Wechsler Adult Intelligence Scale-Third Edition test to Plaintiff. Plaintiff's scores indicated she was functioning in the "average range of intellectual a b ility" and "would be able to understand, remember, and carry out work instructions at a m o d e ra te level of complexity." (Tr. 314) Dr. Boyd also administered the Wechsler M e m o ry Scale-Revised test, and her scores indicated she had an "average to above a v e ra g e memory ability." (Tr. 315) Dr. Boyd noted that he also administered the M in n e s o ta Multiphasic Personality Inventory and could not explain why she had not f o llo w e d the directions in response to a number of items on the test except that she may h a v e misunderstood the directions. (Tr. 315-16) He was unable to score the test. (Tr. 3 1 6 ) Dr. Boyd did not diagnose Plaintiff with any mental impairment and gave her a G A F score of 85. (Tr. 316) At the request of the ALJ, Dr. Boyd addressed Dr. Counts's opinion that, due to c o g n itiv e difficulties, it would be difficult for Plaintiff to remember and carry out in s tru c tio n s , and that she could have difficulty with supervision and co-workers. Dr. B o yd responded: [ H ]e r condition appears to have improved significantly. Specifically, I did n o t note any cognitive difficulties. On the contrary, Ms. Norris appears to b e functioning well within the average range of intelligence, academic a c h ie v e m e n t and memory ability. She showed no deficits in concentration d u rin g today's evaluation. I do not believe she would have any difficulty u s in g cognitive skills in the work setting . . . . I do not believe that she will 7 have difficulty relating to others at work. . . . It is my opinion that she could e n g a g e in work much more sophisticated than unskilled work, and could e n g a g e in relatively sophisticated and complex interactions with the public a n d coworkers. (T r. 318-19) 2. T re a tin g Sources U n d e r 20 C.F.R. 404.1513(a) and 416.913(a), a licensed or certified p s yc h o lo g is t qualifies as an "acceptable medical source" who can provide evidence to e s ta b lis h a medically determinable impairment. Generally, the regulations require that an A L J give more weight to the opinion of a treating medical source than to the opinion of a c o n s u ltin g medical source, as long as the opinion of the treating medical source is wells u p p o rte d by medically acceptable clinical and laboratory diagnostic techniques and is not in c o n s is te n t with the other substantial evidence in the record. See 20 C.F.R. 4 0 4 .1 5 2 7 (d )(2 ), 20 C.F.R. 416.927(d)(2). The ALJ may consider "other sources" such a s therapists and social welfare agency personnel to show the severity of an impairment a n d how it affects the claimant's ability to work, but not to establish the impairment. See 2 0 C.F.R. 404.1513(d) and 416.913(d). In this case the only treating medical source was Dr. Beisel at Professional C o u n s e lin g Associates. The medical records indicate, however, that Dr. Beisel's only tre a tm e n t of Plaintiff occurred in October, 2003, prior to Plaintiff's alleged onset date. The records indicate that Ms. Bessent, a clinical social worker who does not qualify as an a c c e p ta b le medical source under 404.1513(a) or 416.917(a), counseled Plaintiff on 8 her remaining visits to the clinic. Consequently, Plaintiff does not have a treating source m e d ic a l opinion from the relevant time period in the record to establish her impairment. 3. C o n s u ltin g Sources T h e remaining medical records are those of the consulting psychologists who e v a lu a te d Plaintiff pursuant to her claim for benefits. Plaintiff claims the ALJ in a p p ro p ria te ly gave more weight to the opinion of one consulting psychologist, Dr. B o yd , over the opinions of two other consulting psychologists, Drs. Clark and Counts. The ALJ may reject the opinion of a medical expert when it is inconsistent with the m e d ic a l records as a whole. Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002) (citing P e a r s a ll v. Massanari, 274 F.3d 1211, 1218-19 (8th Cir. 2001)). The ALJ is responsible f o r resolving conflicts among treating and examining physicians. Id. (citing Bentley v. S h a la la , 52 F.3d 784, 785-87 (8th Cir. 1995)). In this case, the ALJ considered all of the consulting psychologists' opinions and a p p ro p ria te ly resolved the conflicts. The ALJ specifically addressed Dr. Clark's c o n c lu s io n that it would be difficult for Plaintiff to remember and carry out instructions a n d interact with supervisors and co-workers. He noted these conclusions were contrary to Dr. Boyd's, but also noted the conclusions contradicted Plaintiff's reported daily a c tiv itie s . Further, he noted Dr. Clark's conclusions regarding Plaintiff's memory and c o n c e n tra tio n problems were based on Plaintiff's self-reported head trauma, which Dr. C la rk did not confirm with objective medical evidence. (Tr. 15) See Vandenboom v. 9 Barnhart, 421 F.3d 745, 749 (8th Cir. 2005) (failure to document objective medical e v id e n c e to support subjective complaints justified giving treating neurologist's opinion le s s weight). T h e ALJ also addressed Dr. Counts's conclusion that Plaintiff would be unable to re m e m b e r and carry out instructions in a work setting. The ALJ discounted Dr. Counts's c o n c lu s io n based, in part, on Plaintiff's testimony that just months after the evaluation she b e g a n babysitting and then working as a cashier. She also reported shopping, paying b ills , performing household chores, cooking, and handling her own finances. (Tr. 21) The ALJ also pointed out that Dr. Counts confirmed that Plaintiff was not on any m e d ic a tio n s ; her IQ was estimated at 80 or greater; and she did not exhibit any psychotic s ym p to m s . (Tr. 16) Dr. Counts noted memory deficits but stated they were taken care of b y "reminders to herself." (Tr. 16) F in a lly, the ALJ gave greater weight to Dr. Boyd's opinion because his c o n c lu s io n s were more consistent with Plaintiff's activities of daily living and testimony. (Tr. 21) At the hearing, Plaintiff denied any mental impairment or treatment for a mental im p a irm e n t since her treatment in 1994. (Tr. 450-53) Further, Plaintiff denied taking a n y medication for a mental impairment. (Tr. 453) Plaintiff stated, "I'm not mentally o f f ." (Tr. 450) When the ALJ asked Plaintiff what prevented her from working full time, P la in tif f did not allege a mental disorder. Instead, Plaintiff stated, "I physically really c a n 't do any more." (Tr. 445) When asked whether the decision to work part time was 10 her decision or someone else's, she responded that she told the manager when she was h ire d she had a "back problem" and "a problem with my hands." (Tr. 446) Later in the h e a rin g , Plaintiff stated if she "didn't have any physical problems I could probably ask for m o re [hours] or go someplace that had more." (Tr. 446) Weighing all of the medical source evidence, not just Dr. Boyd's opinion, and the o th e r evidence, including the Plaintiff's testimony, the ALJ found Plaintiff had "mild lim ita tio n maintaining social functioning, mild limitation with concentration, persistence, a n d pace" and "no episodes of deterioration or decompensation in the work place." Accordingly, in his RFC assessment, the ALJ appropriately limited Plaintiff to jobs where th e "interpersonal contact is incidental to the work performed; complexity of tasks is le a rn e d and performed by rote with few variables and requiring little judgment; and s u p e rv is io n required is simple, direct, and concrete." (Tr. 21) 4. O th e r Evidence In her brief, Plaintiff claims the ALJ failed to "give proper weight to the re tro s p e c tiv e opinions of treating sources which were corroborated by evidence from lay w itn e s s e s, particularly the observations of the Judge in her child custody case." (#9 at p. 1 1 ) In support of this argument, Plaintiff cites to Jones v. Chater, 65 F.3d 102, 104 (8th C ir. 1995). Plaintiff's reliance on Jones is misplaced. In Jones, the issue was whether the retrospective medical diagnosis of posttra u m a tic stress disorder, that was uncorroborated by contemporaneous medical reports 11 but was corroborated by testimony of relatives about the claimant's personality during his e lig ib ility period, could support a finding of past impairment. Id. at 103 The Court of A p p e a ls for the Eighth Circuit held that the testimony of the claimant's relatives, which c o rro b o ra te d the post-period diagnosis, was relevant and should have been considered by th e ALJ. Id. In this case, unlike in Jones, there is no retrospective diagnosis by a treating s o u rc e . Here the ALJ based his opinion on the opinions of consulting psychologists who e x a m in e d Plaintiff during the relevant time period and on the opinion of a treating source w h o diagnosed Plaintiff before her alleged onset date. Further, in this case, unlike in J o n e s , the ALJ considered the transcript from the child custody hearing at Plaintiff's h e a rin g and found that, because he did not have access to any of the evidence presented to th e Circuit Court, the Judge's comments were hearsay. (Tr. 460) The ALJ then advised P la in tif f that if she had any supporting records or doctors' reports she had not submitted, s h e could submit them after the hearing. (Tr. 460) Plaintiff did not submit any additional re p o rts , and the ALJ appropriately did not consider the Judge's order as evidence e s ta b lis h in g Plaintiff's mental impairment. See 20 C.F.R. 404.1513(d) and 416.913(d) (A L J may use evidence from other sources only to show the severity of a claimant's im p a irm e n t and how it affects the claimant's ability to work but not to establish an im p a irm e n t). 12 C. G A F Scores P la in tif f claims the ALJ did not give appropriate weight to her GAF scores. The C o m m is s io n e r has declined to endorse the GAF scales to evaluate Social Security claims b e c a u s e the scales do not have a direct correlation to the severity requirements in mental d is o rd e rs listings. See 65 Fed.Reg. 50746, 50764-65 (Aug. 21, 2000). Thus, an ALJ may a f f o rd greater weight to medical evidence and testimony than to a GAF score when the e v id e n c e requires it. See Hudson v. Barnhart, 345 F.3d 661, 666 (8th Cir. 2003). Plaintiff points out that, prior to her onset date, Professional Counseling Associates a s s ig n e d her a GAF of 60-70. (Tr. 206) From January 2, 1994, her alleged onset date, u n til October 26, 2006, the date of the ALJ's decision, she received four GAF scores. On M a rc h 31, 1994, Ms. Bessent assigned Plaintiff a GAF score of 56. (Tr. 200) On N o v e m b e r 27, 2002, Dr. Clark assigned Plaintiff a GAF score of 40. (Tr. 234) On April 7 , 2003, Dr. Counts also assigned Plaintiff a GAF score of 40, and finally on August 19, 2 0 0 4 , Dr. Boyd assigned Plaintiff a GAF score of 85. (Tr. 239, 316) Plaintiff claims the G A F score of 85 is inconsistent and the GAF scores of 40 reflect, "some impairment in re a lity testing or major impairment in several areas such as judgment; family; w o rk /s c h o o l; thinking or mood" indicating her inability to work. (#9 at pp. 9-10) In his opinion, the ALJ did not specifically discuss the Plaintiff's GAF scores. The A L J did discuss, however, the reports of both Dr. Clark and Dr. Counts in detail and, as s e t forth above, did not err in assigning greater weight to Dr. Boyd's report and the 13 Plaintiff's testimony in this case than to the two GAF scores assigned to Plaintiff between N o v e m b e r, 2002, and April, 2003. D. L iste d Impairment and Closed Period Plaintiff claims the ALJ erred by finding she did not have a listed impairment u n d e r 12.04 or 12.08 of Appendix 1. In order for the Plaintiff to establish that her im p a irm e n t matches a listing, she "must meet all of the specified medical criteria" for that lis tin g . Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885 (1990). Part B of Listings 1 2 .0 4 and 12.08 requires that a claimant's mental impairment result in at least two of the f o llo w in g : (1) marked restriction of activities of daily living; (2) marked difficulties in m a in ta in in g social functioning; (3) marked difficulties in maintaining concentration, p e rs is te n c e , or pace; and (4) repeated episodes of decompensation, each of extended d u ra tio n . 20 C.F.R. pt. 404, subpt. P, app. 1 12.04, 12.08. As set forth above, s u b s ta n tia l evidence supports the ALJ's conclusion that Plaintiff did not have marked re s tric tio n of her activities of daily living, marked difficulties in maintaining social f u n c tio n in g , marked difficulties with concentration, persistence or pace, or repeated e p is o d e s of decompensation. Accordingly, the ALJ did not err in finding Plaintiff did not h a v e a listed impairment. F in a lly, Plaintiff argues she is entitled to a closed period of disability from the a lle g e d onset date until the August 31, 2004. Plaintiff is not entitled to any period of d is a b ility, however, because substantial evidence supports the ALJ's conclusion that 14 Plaintiff was not "disabled," as defined by the Social Security Act, for any period after the a lle g e d onset date through the date of the decision. See 20 C.F.R. 404.1520(f) and 4 1 6 .9 2 0 ( f ) . V. C o n c lu s io n : T h e Court has reviewed all of the evidence in the record. There is substantial e v id e n c e in the record as a whole to support the Commissioner's conclusion that Plaintiff h a s the residual functional capacity to return to her past work or make an adjustment to o th e r work available in the local, regional, and national economy. Accordingly, Plaintiff's appeal is DENIED. The Clerk is directed to close the c a s e , this 28th day of May, 2009. ___________________________________ U N IT E D STATES MAGISTRATE JUDGE 15

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