Conners v. Social Security Administration

Filing 14

MEMORANDUM OPINION AND ORDER denying Plaintiff's appeal and directing the Clerk to close the case. Signed by Magistrate Judge Beth Deere on 3/9/10. (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 J A S M I N E CONNERS V. CASE NO. 4:09CV00024-BD PLAINTIFF

M I C H A E L J. ASTRUE, Commissioner, Social Security Administration

DEFENDANT

M E M O R A N D U M OPINION AND ORDER P la in tif f Jasmine Conners has appealed the final decision of the Commissioner of th e Social Security Administration (the "Commissioner") denying her claim for S u p p le m e n ta l Security Income ("SSI") benefits under Title XVI of the Social Security A c t (the "Act"). For reasons that follow, the decision of the Administrative Law Judge (" A L J " )1 is affirmed. I. Procedural History: P la in tif f filed an application for SSI benefits on April 21, 2006. Plaintiff alleges s h e became disabled on March 13, 2005, as a result of mental impairment.2 The ALJ held a hearing on March 20, 2008, and Plaintiff appeared with her attorney David Hendrix. The ALJ received testimony from Plaintiff; Plaintiff's aunt and former guardian;

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The Honorable Don Curdie, Administrative Law Judge.

At the administrative hearing, Plaintiff's representative amended the alleged o n s e t date to March 13, 2005. (Tr. 610) This date immediately follows the most recent p rio r determination of the Commissioner to deny disability benefits to Plaintiff. (Tr. 343349)

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Christine McClina; and vocational expert Charles Turner ("VE").3 On May 30, 2008, the A L J issued a decision denying Plaintiff benefits. (Tr. 13-32) Plaintiff filed the current C o m p la in t for Review of Decision (docket entry #2) on January 14, 2009. II. B ackground: A t the time of the hearing, Plaintiff was a 19-year-old female with an eighth grade e d u c a tio n . She had never attempted employment and had no past relevant work e x p e rie n c e . (Tr. 594) P la in tif f was under the age of eighteen at the time of the filing of the application f o r SSI. She reached the age of majority on March 14, 2007, prior to the hearing and d e c is io n issued by the ALJ. Plaintiff notes that the ALJ correctly evaluated her a p p lic a tio n under both the adolescent and adult standards for disability (#12). While P la in tif f "does not concede the correctness of the ALJ's decision concerning the a d o le s c e n t standards," she does not allege any error in the ALJ's determination regarding th e adolescent standard (#12, fn. 1). Instead, Plaintiff alleges the ALJ erred when d e c id in g , under the adult standard, that Plaintiff could perform a significant number of jo b s that exist in the national economy.

It appears that the beginning of the administrative hearing was not recorded or tra n s c rib e d for the record. (Tr. 589-611) Neither party has asserted that information m a te ria l to this Court's review was omitted from the transcript. 2

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III.

F in d in g s of the ALJ:4 The ALJ followed the required five-step sequential analysis set out in the social

s e c u rity regulations, 20 C.F.R. § 416.920, finding that since Plaintiff attained the age of e ig h te e n : (1) she had not engaged in substantial gainful activity; (2) she continued to s u f f e r from "severe impairments" as that term is interpreted for purposes of the Social S e c u rity Regulations; (3) Plaintiff did not have an impairment, or combination of im p a irm e n ts, that rose to the level of severity for any impairment listed in Appendix 1 to S u b p a rt P, Regulation No. 4; (4) she did not have any past relevant work; but (5) Plaintiff re ta in e d the residual functional capacity ("RFC") to perform the full range of work at all e x e rtio n a l levels with only nonexertional impairments. At step five, the ALJ found that a s ig n if ic a n t number of jobs existed in the economy which Plaintiff was capable of p e rf o rm in g . P la in tif f contends the ALJ's finding that she could perform a significant number of jo b s that existed in the national economy is not supported by substantial evidence. Plaintiff does not allege any specific errors of law. The Defendant argues that the ALJ's d e c is io n is supported by substantial evidence because: (1) the ALJ properly assessed P la in tif f 's RFC; and (2) the ALJ presented the VE with a properly phrased hypothetical.

The Court has reviewed the Commissioner's determination under the adolescent s ta n d a rd for disability and finds the determination was supported by substantial evidence in the record. Plaintiff does not contest the adolescent determination. Accordingly, the C o u rt will address only Plaintiff's allegation of error under the adult standard. 3

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IV.

L e g a l Analysis: In reviewing the ALJ's decision, this Court must determine whether there is

s u b s ta n tia l evidence in the administrative record to support the Commissioner's decision. 42 U.S.C. § 405(g). This review function is limited, and the decision of the ALJ must be a f f irm e d "if the record contains substantial evidence to support it." Edwards v. Barnhart, 3 1 4 F.3d 964, 966 (8th Cir. 2003). "Substantial evidence is less than a preponderance but e n o u g h so that a reasonable mind could find it adequate to support the decision." Id. Evidence that both supports and detracts from the ALJ's decision must be considered, but th e decision cannot be reversed "merely because there exists substantial evidence s u p p o rtin g a different outcome." Id. "Rather, if, after reviewing the record, . . . it is p o s s ib le to draw two inconsistent positions from the evidence and one of those positions re p re se n ts the [ALJ's] findings, we must affirm the decision of the [ALJ]." Young v. A p fe l, 221 F.3d 1065, 1068 (8th Cir. 2000) (citations and quotations omitted). Thus, the C o u rt's function on review is to determine whether the Commissioner's decision is s u p p o rte d by substantial evidence on the record as a whole and whether it is based on le g a l error. Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997); see also, 42 U.S.C. § 405(g).

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A.

P la in tiff's Residual Functional Capacity:

T h e ALJ bears the initial responsibility for assessing Plaintiff's RFC. Anderson v. S h a la la , 51 F.3d 777, 779 (8th Cir. 1995). Plaintiff's RFC is what she can do despite her lim ita tio n s . 20 C.F.R. § 416.945 (2003). In determining Plaintiff's RFC, the ALJ has a d u ty to establish, by competent medical evidence, the physical and mental activity that P la in tif f can perform in a work setting, after giving appropriate consideration to all of her im p a irm e n ts. Ostronski v. Chater, 94 F.3d 413, 418 (8th Cir. 1996). The ALJ must d e te rm in e the Plaintiff's RFC based on all relevant evidence, including medical records, o b s e rv a tio n s of treating physicians and others, and Plaintiff's own descriptions of her lim ita tio n s . Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003); Pearsall v. M a s s a n a r i, 274 F.3d 1211, 1217 (8th Cir. 2001). The ALJ determined that Plaintiff maintained the RFC to perform a full range of w o rk at all exertional levels with only nonexertional impairments. (Tr. 28-30) The ALJ f o u n d no physically limiting impairments. Mentally, the ALJ determined that Plaintiff w a s limited to a work environment where interpersonal contact is incidental to the tasks p e rf o rm e d , the complexity of tasks is learned and performed by rote, with few variables, re q u irin g little individual judgment, and with simple, direct, and concrete supervision. (Tr. 28)

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1.

P h y s ic a l Residual Functional Capacity:

T h e record contains substantial evidence to support the ALJ's physical RFC d e te rm in a tio n . Plaintiff did not allege any physical limitations in her disability related f ilin g s . (Tr. 79) At the administrative hearing, she stated that she could not sit for long p e rio d s of time because she liked to move around. (Tr. 595) Plaintiff stated that she re c e n tly suffered a minor injury to her left knee. (Tr. 595) Plaintiff also complained of c ra m p in g in her back when lifting heavy objects. Plaintiff had not sought treatment for h e r back. (Tr. 596) It appears Plaintiff never alleged disability from, or sought treatment for, a p h ys ic a l impairment, and none of the medical records evidence a physical impairment. Accordingly, the ALJ properly determined Plaintiff could physically perform a full range o f work at all exertional levels. 2. M e n ta l Residual Functional Capacity:

T h e record shows, and the ALJ found, that Plaintiff had some limitations in her m e n ta l functioning. Plaintiff's difficulties in school evidenced a limited ability to read. She had additional deficiencies in arithmetic and spelling. (Tr. 369) Plaintiff, however, d id not have significant problems concentrating on class work or staying on task. (Tr. 3 6 9 -3 7 0 )

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In early adolescence, Plaintiff had friends and the ability to make new friends. She g e n e ra lly got along with her teachers. Plaintiff, however, did not get along with her aunt o r siblings. (Tr. 401) Plaintiff could take care of her personal hygiene and help around th e house. Plaintiff could even use public transportation by herself. (Tr. 402) Early cognitive testing showed Plaintiff had borderline intellectual functioning, w ith a full scale IQ of 74. (Tr. 557) It was noted, however, that the test results u n d e re s tim a te d Plaintiff's abilities because she was not taking her prescribed m e d ic a tio n s . (Tr. 554-555) Later cognitive testing showed similar results, also while P la in tif f was not taking her medication. (Tr. 167-174) Plaintiff underwent a Consultative Examination at United Family Services on N o v e m b e r 15, 2004. (Tr. 146-150) In addition, Plaintiff engaged in therapy at United F a m ily Services from November 15, 2004, until September 30, 2005. (Tr. 151-166) P la in tif f 's initial diagnoses were depressive disorder, attention deficit hyperactivity d is o rd e r ("ADHD"), oppositional defiant disorder, and borderline intellectual functioning, w ith an assigned Global Assessment of Functioning ("GAF") score of 54.5 (Tr. 149) A lth o u g h social difficulties were noted, Plaintiff occasionally babysat on the weekends to e a rn money. The examination showed "no major medical or mental health problems" at

The Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV), p u b lish e d by the American Psychiatric Association, states that a GAF of 51 to 60 in d ic a te s moderate symptoms or moderate difficulty in social, occupational, or school f u n c tio n in g (DSM-IV 32). 7

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that time. (Tr. 148) Plaintiff had glasses, but refused to wear them. She was prescribed A d d e rra ll, but refused to take it. (Tr. 148) Monthly therapy reports showed some p ro g re s s , with GAF scores ranging from 45 to 55.6 (Tr. 151-166) P la in tif f attended therapy at Arkansas Behavioral Health Care from March 8, 2 0 0 6 , until October 23, 2007. (Tr. 183-235) She attended individual and family c o u n s e lin g sessions for depressive disorder and ADHD. (Tr. 197) Plaintiff's problems w e re being defensive, easily offended, and paranoid, with a history of low self-esteem a n d abandonment by her parents. (Tr. 183-235) During this time, Plaintiff was taking c o u rs e s at Job Corps while attempting to earn a General Educational Development c e rtif ic a te ("GED"). Plaintiff was admitted to BridgeWay after she acted "really badly" a t Job Corps, refused to take her medication, and threatened suicide. (Tr. 206, 242) Plaintiff was placed in BridgeWay for inpatient treatment from August 29, 2007, u n til September 4, 2007, under the supervision of Dr. Richard Owings. (Tr. 236-332) At th e time of her admittance, Plaintiff was prescribed Abilify and Focalin. Dr. Owings d is c o n tin u e d Focalin and prescribed a regimen of Ability and Prozac, which Plaintiff to le ra te d well. (Tr. 237, 243) Plaintiff showed fair judgment and insight, linear and goalo rie n te d thought processes, average intelligence, and the ability to concentrate and recall in f o rm a tio n . (Tr. 239, 243) Dr. Owings' preliminary impression was major depressive

A GAF of 41 to 50 indicates "any serious impairment in social, occupational, or s c h o o l functioning (e.g., no friends, unable to keep a job)" (DSM-IV 32). 8

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episode, single. (Tr. 240) Plaintiff's admission GAF score was 20.7 (Tr. 241) No a d d itio n a l GAF scores were assigned in progress reports or at discharge. Plaintiff repeatedly expressed a desire to return to Job Corps, at one point voicing c o n c e rn that she would get behind in her classes. (Tr. 318) Dr. Owings believed Plaintiff h a d the ability to participate in Job Corps. (Tr. 240) Dr. Owings expressed some concern w ith Plaintiff's stated goal to get on disability. (Tr. 237, 294) Dr. Owings encouraged P la in tif f to use Job Corps to gain skills for employment. (Tr. 237, 294) After two days of th e ra p y, Plaintiff's stated goal was to return to Job Corps, get her GED certificate, and f in d employment. (Tr. 296) On September 4, 2007, Plaintiff was discharged to Job Corps, where she resided at th e time. Plaintiff's prognosis upon discharge was "[f]air based on compliance and s e v e rity of illness." (Tr. 241) Plaintiff repeatedly stated that she was not suicidal. After d is c h a rg e from BridgeWay, Plaintiff attended two therapy sessions at Arkansas B e h a v io ra l Health Care on October 2, 2007, and October 9, 2007, and stated her intent to g e t out of Job Corps. (Tr. 201, 202) Plaintiff saw Dr. Haroon for medication m a n a g e m e n t and complained of sleepiness. Dr. Haroon adjusted Plaintiff's doses of m e d ic a tio n . (Tr. 200, 203, 204, 205) It appears Plaintiff did not seek therapy, treatment, o r medication management after October 23, 2007.

A GAF of 11 to 20 indicates "some danger of hurting self or others (e.g., suicidal a tte m p ts without clear expectation of death; frequently violent; manic excitement)" (D S M -IV 32). 9

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Plaintiff was hospitalized in Baptist Health Medical Center from January 2, 2008, u n til January 9, 2008, under the supervision of Dr. Greg Kaczenski. (Tr. 333-335) The A L J held the administrative record open after the hearing so that Plaintiff could provide th e records for this hospitalization. (Tr. 598) Dr. Kaczenski diagnosed Plaintiff with schizophrenia, undifferentiated type. (Tr. 3 3 3 ) Upon hospitalization, Plaintiff had a GAF score of 20.8 She reported being off her m e d ic a tio n s since August, 2007. During hospitalization, Plaintiff underwent supportive in te rv e n tio n s , group therapy, and occupational therapy. (Tr. 333) No progress reports w e re provided for Plaintiff's therapy.9 No subsequent or discharge GAF scores were p ro v id e d . Dr. Kaczenski did not diagnose Plaintiff with her previous diagnoses of d e p re s s iv e disorder, ADHD, oppositional defiant disorder, or borderline intellectual f u n c tio n in g . (Tr. 335) There is little explanation and no clinical or diagnostic testing to s u p p o rt Dr. Kaczenski's diagnosis. On January 9, 2008, Plaintiff was discharged with no restrictions on her activities. (Tr. 333) She was instructed to follow up with Centers for Youth and Family on January 2 5 , 2008. No follow-up documents appear in the record. Plaintiff testified that she was

A GAF of 11 to 20 indicates "some danger of hurting self or others (e.g., suicidal a tte m p ts without clear expectation of death; frequently violent; manic excitement)" (D S M -IV 32). The "progress record" provided by Plaintiff is one page and pertains only to J a n u a ry 2, 2008, the first day of Plaintiff's hospitalization. (Tr. 335) 10
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unable to find transportation to her follow-up appointments. (Tr. 592) Plaintiff, however, h a d been able to use public transportation independently since at least thirteen years of a g e . (Tr. 402) It is difficult to determine the impact of Plaintiff's GAF scores on her RFC. The re c o rd shows only two assessed GAF scores between September 30, 2005, and March 20, 2 0 0 8 , the date of the administrative hearing. Both GAF scores were 20, which is e x tre m e ly low. (Tr. 241, 333) Both assessments were made when Plaintiff was n o n c o m p lia n t with medication, at an initial assessment upon hospitalization, and by d o c to rs who had no previous interaction or treatment history with Plaintiff.1 0 These a s s e s sm e n ts appear to represent temporary low points in Plaintiff's functioning.1 1 T h e ALJ noted Plaintiff's failure to take prescribed medication or consistently seek tre a tm e n t. Plaintiff takes issue with the ALJ's suggestion that she would have a higher le v e l of functioning if she were medically compliant. The record, however, clearly shows P la in tif f 's improvement when compliant with prescribed medication. Plaintiff even te s tif ie d that she did not have trouble getting along with others when she took her p re s c rib e d medication. (Tr. 593)

Plaintiff acknowledged as much by attempting to discredit some of Dr. Owings' p ro g re s s remarks because of his "limited knowledge of [Plaintiff's] history" (#12, p. 91 0 ). Dr. Owings encouraged Plaintiff to use Job Corps to gain skills for employment, in s te a d of seeking disability. (Tr. 237, 294) Clearly, a person with a consistent assessed G A F score of 20 would not be employable. 11
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Plaintiff contends the ALJ failed to consider why Plaintiff was noncompliant. Plaintiff stated that her medication made her feel funny, dizzy, and sometimes sleepy. (Tr. 592, 598) When noncompliant, Plaintiff would sleep until 1:00 or 2:00 in the a f te rn o o n . (Tr. 604) When Plaintiff complained about the side effects of her medication, P la in tif f 's doctors would switch medication or adjust the dosages. Plaintiff's former g u a rd ia n , Ms. McClina, testified that part of the reason for Plaintiff's failure to take her m e d ic a tio n was that she did not want her friends to know she needed medication. (Tr. 603) U ltim a te ly, the ALJ determined that Plaintiff was limited to a work environment w h e re interpersonal contact is incidental to the tasks performed, the complexity of tasks is le a rn e d and performed by rote, with few variables, requiring little individual judgment, a n d with simple, direct, and concrete supervision. (Tr. 28) Although some evidence c o u ld support a different outcome, the ALJ relied on enough evidence in the record that a re a s o n a b le mind could find adequate to support the decision. See Edwards, 314 F.3d at 9 6 6 (substantial evidence is enough that a reasonable mind could find it adequate to s u p p o rt the decision; a Court cannot reverse the decision merely because substantial e v id e n c e exists supporting a different outcome). A t the administrative hearing, Plaintiff testified that her hospitalizations resulted f ro m disruptive behavior and a failure to get along with others. (Tr. 591) The a d m in is tra tiv e record evidences Plaintiff's defensiveness and conflict with peers. With 12

few exceptions, however, Plaintiff was cooperative with therapists and doctors. The A L J 's determination that Plaintiff was limited to a work environment where interpersonal c o n ta c t is incidental to the tasks performed adequately addressed Plaintiff's limited ability to interact with others when noncompliant with prescribed medication. It appears when medically compliant, this limitation is unnecessary. Plaintiff te s tif ie d that she did not have trouble getting along with others when she took her m e d ic a tio n as prescribed. (Tr. 593) If an impairment can be controlled by treatment or m e d ic a tio n , it cannot be considered disabling. Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1 9 9 5 ); Stout v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993). The ALJ limited Plaintiff to jobs where the complexity of tasks is learned and p e rf o rm e d by rote, with few variables, requiring little individual judgment. Substantial e v id e n c e in the record supports the finding that Plaintiff retained at least this limited a b ility. The record shows that during therapy, Plaintiff's cognition and thought processes w e re intact and she was generally focused or attentive. (Tr. 243, 301, 302, 306, 307, 311, 3 1 2 , 315, 316, 318, 319, 322) Plaintiff described her limitations in this area as being able to remember only one thing, instead of two. (Tr. 593) Ms. McClina testified that P la in tif f could remember to do two things, but not three. (Tr. 604) Plaintiff testified that p a rt of her problem was that she did not want to do certain things until she was told she h a d to. (Tr. 593, 595)

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At the time of the administrative hearing, Plaintiff spent her days at home w a tc h in g television and using the computer. (Tr. 594) She would sleep until 1:00 or 2:00 in the afternoon. (Tr. 604) She testified that she would spend all day on Facebook, a s o c ia l networking website. (Tr. 599) Plaintiff would send, receive, read, and respond to e m a il from friends. (Tr. 600) She was also able to shop for groceries. (Tr. 597) The record shows that Plaintiff had little difficulty engaging in tasks she wanted to e n g a g e in, even when noncompliant with prescribed medication. The ALJ's finding that P la in tif f could learn and perform repetitive tasks with few variables and little individual ju d g m e n t is easily supported by the record. The ALJ's final nonexertional restriction was limiting Plaintiff to jobs with simple, d ire c t, and concrete supervision. (Tr. 28) During therapy, Plaintiff was consistently able to follow directives and verbalize her understanding of instructions. (Tr. 300, 303, 308, 3 0 9 , 310, 313, 317, 320, 321, 323) The lack of ambiguity in supervision could also lessen p o te n tia l conflict between Plaintiff and an employer. The record does not seriously call in to question Plaintiff's ability to comply with simple, direct, and concrete directives, e v e n when noncompliant with prescribed medication. B. V o c a tio n a l Evidence and Significant Number of Jobs in the Economy:

If Plaintiff cannot perform her past relevant work, the ALJ must find that a s ig n if ic a n t number of jobs exist in the economy which Plaintiff was capable of

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performing.1 2 In general, if Plaintiff suffered from nonexertional impairments that limited h e r ability to perform a full range of work, the ALJ would be required to utilize testimony o f a VE. Groeper v. Sullivan, 932 F.2d 1234, 1235 n. 1 (8th Cir. 1991). In order for the V E 's testimony to constitute substantial evidence, it must be in response to a properly p h ra s e d hypothetical question which accurately describes Plaintiff's limitations. Hunt v. B a rn h a r t, 250 F.3d 622, 625 (8th Cir. 2001). The ALJ found that Plaintiff's nonexertional impairments limited her to a work e n v iro n m e n t where interpersonal contact is incidental to the tasks performed, the c o m p le x ity of tasks is learned and performed by rote, with few variables, requiring little in d iv id u a l judgment, and with simple, direct, and concrete supervision. (Tr. 28) Accordingly, the ALJ called a VE to provide occupational evidence. (Tr.608-610) The A L J accurately described Plaintiff's limitations in a legally sufficient hypothetical q u e s tio n posed to the VE. (Tr. 608-609) See Haggard v. Apfel, 175 F.3d 591, 595 (8th C ir. 1999) (hypothetical is sufficient if it sets forth the impairments accepted by the ALJ a s true); see also Section A., supra. The VE testified that an individual with Plaintiff's limitations could perform light e x e rtio n , unskilled jobs as a maid or hotel cleaner.1 3 (Tr. 609) While there is no bright

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Plaintiff did not have any past relevant work.

At the time of the hearing, there were approximately 125,000 of these jobs re g io n a lly, and 880,000 in the United States. 15

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line rule regarding the number of jobs in the economy, it appears the Commissioner c o m f o rta b ly met his burden in this respect. See Jenkins v. Bowen, 861 F.2d 1083, 1087 (8 th Cir. 1988)(500 jobs were a legally sufficient significant number to meet the C o m m is s io n e r's burden). Accordingly, the Commissioner met his burden of showing that a significant number of jobs existed in the economy which Plaintiff was capable of p e rf o rm in g . V. Conclusion: T h e re is substantial evidence in the record to support the Commissioner's denial of b e n e f its to Plaintiff. It appears, as the ALJ recognized, that Plaintiff suffered at least one s e v e re impairment. There is sufficient evidence in the record, however, to support the A L J 's assessment that Plaintiff retained the capacity to perform a significant number of jo b s in the national economy. Accordingly, Plaintiff's appeal is DENIED. The Clerk is d ire c te d to close the case. IT IS SO ORDERED this 9th day of March, 2010.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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