Sullivan v. Social Security Administration

Filing 10

REPORT AND RECOMMENDATION re 1 Complaint filed by Mary Ann Sullivan: IT IS RECOMMEND that the Commissioner's decision to deny benefits be affirmed and that Plaintiff's complaint be dismissed with prejudice. Objections to R&R due by 2/12/2009. Signed by Magistrate Judge Mark Hornsby on 1/26/09. (crt,Cassanova, M)

UNITED STATES DISTRICT COURT W E S T ER N DISTRICT OF LOUISIANA S H R E V EP O R T DIVISION

M A R Y ANN SULLIVAN VERSUS U S COMMISSIONER SOCIAL S E C U RI TY ADMINISTRATION

C I V I L ACTION NO. 07-cv-1973 J U D G E WALTER M A G I S T R A T E JUDGE HORNSBY

R E P O RT AND RECOMMENDATION I n t r o d u c t io n Ma ry Sullivan ("Plaintiff") filed an application for Supplemental Security Income payme nts in 1999. She based her claim on depression, anxiety, headaches, and hypertension. T h e agency denied the claim, and this court affirmed the decision in Sullivan v. C o m m i s s i o n e r, 04-cv-0395. Plaintiff filed a second application. After various agency p r o c e e d i n g s , ALJ Osly Deramus held a hearing and denied the claim. The Appeals Council d e n i e d a request for review, and Plaintiff filed this civil action seeking the limited judicial relie f that is available under 42 U.S.C. § 405(g). Standard of Review; Substantial Evidence This court's standard of review is (1) whether substantial evidence of record supports t h e ALJ's determination, and (2) whether the decision comports with relevant legal s t a n d a r d s . Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). "Substantial evidence is more than a scintilla and less than a preponderance. It is such relevant evidence as a reaso nable mind might accept as adequate to support a conclusion." Muse v. Sullivan, 925

F . 2 d 785, 789 (5th Cir. 1991). A finding of no substantial evidence is justified only if there are no credible evidentiary choices or medical findings which support the ALJ's dete rmin ation . Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). I s s u e s on Appeal T h e scheduling order requires a claimant to set forth specific assignments of error on appe al. Plaintiff lists three: (1) A general assertion that the ALJ did not have substantial e v i d e n c e to support his decision; (2) An argument that the ALJ did not properly apply the t r e a ti n g physician rule; and (3) An argument that the ALJ did not have evidence that there w e r e jobs available that Plaintiff could not only perform at times but also maintain. S u m m a r y of the ALJ's Decision P l a i n ti f f was 34 years old at the time of hearing. She did not complete school, but she d i d earn her GED. She had work experience as a lumber tagger and assembly line worker. T h e ALJ analyzed Plaintiff's claim pursuant to the five-step sequential analysis set forth in 2 0 C.F.R. § 416.920 (regulations governing claims for Supplemental Security Income) and d e s c r ib e d in Barnhart v. Thomas, 124 S.Ct. 376, 379-80 (2003). See also Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). The ALJ found no evidence that Plaintiff had engaged in substantial gainful activity ( s t ep one) since her alleged onset date in January 1999. Tr. 23. The ALJ reviewed the e v a l u a ti o n s of Plaintiff's mental health. He found that Plaintiff's depression, anxiety, and h e a d a c h e s were "severe" impairments (step two) within the meaning of the regulations, but

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t h e y were not so severe as to meet or medically equal a listed impairment (step three) that wo uld require an automatic finding of disabled regardless of Plaintiff's age, education, or w o r k experience. Tr. 23-27. T h e ALJ then assessed Plaintiff's residual functional capacity ("RFC"). After

r e v i e w i n g the medical evidence, assessing Plaintiff's credibility, and considering the opinion of the state agency medical experts, the ALJ found that Plaintiff had the RFC for unskilled work at the medium exertional level. He specifically found that Plaintiff had the abilities to m e e t the basic mental demands of such unskilled work, including the abilities (on a sustained b a s i s ) to understand, carry out, and remember simple instructions; to make judgments that a r e commensurate with the functions of unskilled work; to respond appropriately to s u p e r v is i o n , co-workers, and work situations; and deal with changes in a routine work s e t ti n g . Tr. 27-29. T h e ALJ then turned to step four, whether the claimant is capable of performing the d e m a n d s of her past relevant work, either as she actually performed it or as the job is gene rally performed in the national economy. Plaintiff had past relevant work in a lumber yard or sawmill placing tags on lumber to mark the grade of the lumber. The job required h e r to be on her feet most of the day and to carry lumber around the yard. The ALJ also l o o k e d to the Dictionary of Occupational Titles for the description of the job of Lumber Sorter. The job was defined as unskilled medium work, requiring typical sorting and grading ac tiv ity. The ALJ noted that Plaintiff had quit her job as a lumber tagger or sorter because

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s h e was worried about her job performance, but she was not fired and she was able to perform the work when she left the job. He determined that Plaintiff still had the RFC to perform her past relevant work, so Plaintiff was deemed not disabled at step four. Tr. 29-30. S u b s t a n t i a l Evidence Plai n tiff's first issue is a general assertion that the ALJ lacked substantial evidence to support his decision. Plaintiff's memorandum reviews aspects of some of the medical rep orts and suggests that a different conclusion is in order. Plaintiff was referred by her attorney for an examination by Dr. Richard Galloway, a licensed rehabilitation counselor. Plaintiff told Dr. Galloway about her family background, i n c l u d in g her one marriage to a husband who died in February of 2001. Plaintiff said she w a s unable to work because of depression and migraine headaches that she had every day. S h e had been treated by a family practitioner in Ringgold, where she was living, and had v i s it e d the Red River Mental Health Treatment Center for monthly counseling, with a visit to the Center's psychiatrist every six months or so. Plaintiff said her only physical problem w a s with hypertension, which was controlled at times by her medication. Plaintiff said she had crying spells "all of the time" that would last for days. Dr. Galloway reviewed the Mental Health Center records, as well as other records, a n d conducted an intelligence test. The scores indicated limited educational ability but s u f f i c ie n t academic skills to perform many jobs in the economy. The mental health records

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i n d i c at e d a global assessment of functioning ("GAF") of 65.1 Dr. Galloway concluded that t h e medical records did not indicate any vocational restrictions, but it was "apparent that P l a i n ti f f would have significant restrictions because of her GAF and her major depression." H e asked for more recent medical information. Tr. 160-64. Counsel for Plaintiff provided u p d a t e d records, and Dr. Galloway said he saw little to change his opinion from his original rep ort. Tr. 159. One of the reports that Dr. Galloway examined was by Thomas E. Staats, Ph.D., a clinic a l neuropsychologist who conducted a consultative examination for the agency in 1999. Plaintiff's husband was then alive, but Plaintiff reported a lot of stress due to his poor health. Dr. Staats found that Plaintiff's thinking was adequate in regard to content and reality testing, and her understanding was intact. Her sustained concentration was marginal, persistence was poo r, and social interaction was adequate. The prognosis was fair to guarded. Tr. 168-69. Dr. Scott Phillips wrote a short letter in 2002 and stated that Plaintiff had been a p a t i en t for the past two and one-half years. He said Plaintiff suffered from major depression b r o u g h t on by the recent death and prolonged illness of her husband, and he opined that P l a i n ti f f could not perform "any type of work second(ary) to extreme difficulty concentrating a n d decreased energy." He did observe that her prognosis was good with treatment. Tr. 307.

A GAF of 61 to 70 is described as: "Some mild symptoms OR some difficulty in social, occupational, or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships." Page 5 of 9

1

Ma rk Dulle, Ph.D., a clinical psychologist, conducted a consultative examination in 2 0 0 2 . The assessment was similar to that of the other reports, but Dr. Dulle stated that P laintiff's prognosis appeared poor. She presented to him as depressed with little hope or idea how to improve her lot in life. Tr. 384-86. Plaintiff does not argue that she has any physical limitations inconsistent with the RFC f o u n d by the ALJ. She argues only that the evidence regarding her mental health suggests a greater limitation. The Commissioner points out evidence in more recent years since those repo rts in which Plaintiff appeared to be improved. For example, Plaintiff was quoted in a 2 0 0 4 record as stating that she was "much better" with regard to her depression. Tr. 1028. In a mental health clinic record from 2006, Plaintiff said she was "doing better" but still had b o u t s of crying spells. Tr. 958-59. T h e evidence discussed above provided the ALJ with credible evidentiary choices to support his finding that Plaintiff had the ability to meet the basic mental demands of u n s k i ll e d work, such as understanding simple instructions, responding appropriately to s u p e r v is i o n , and dealing with changes in a routine unskilled work setting. Plaintiff obviously h a s some depression and mental health problems, and the ALJ did not wholly discount them. Rather, he recognized their existence but determined that the limitations were not so severe a s to preclude Plaintiff from performing the basic mental demands of unskilled work. The r e c o r d provides substantial evidence to support that decision.

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Tre ating Physician Rule P l a i n ti f f argues that the ALJ did not follow the appropriate procedures required to d i s c o u n t the opinion of a treating physician, such as is described in Newton v. Apfel, 209 F.3d 443 (5th Cir. 2000). The reports by Dr. Dulle, Dr. Staats, and Dr. Galloway were not f r o m treating sources. Each of those examiners merely conducted a consultation and had no h i s to r y of treatment of Plaintiff. Dr. Phillips did report a history of treatment, but his onep a r a g r a p h letter was not specific as to any mental limitations, was conclusory with regard to his 2002 assessment that Plaintiff could not perform any type of work, and he stated then that h e r prognosis was good with treatment. Later records show that Plaintiff did receive treatm ent, including medication, and made some improvements. Plaintiff has not established t h a t the ALJ committed reversible error in his assessment of the opinion evidence. M a i n t a i n i n g Work P l a i n ti f f argues that the ALJ did not have evidence to establish that she could maintain a job even if she could perform its demands at times. Plaintiff's argument about maintaining a n available job invokes the Fifth Circuit's Singletary decision, which interpreted disability u n d e r the Act to apply to cases in which a person is capable of working for short periods but c a n not maintain a job because his impairment flares up too often. Singletary does not, how ever, require every decision by an ALJ include a separate finding regarding the claimant's ability to maintain a job. Frank v. Barnhart, 326 F.3d 618, 621 (5th Cir. 2003). An A L J ' s finding that a claimant can perform a certain level of work necessarily includes a

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f i n d i n g that he is able to perform at that level not just intermittently but eight hours a day, f i v e days a week. A separate and express finding regarding maintaining work is required only when the claimant's ailment "waxes and wanes in its manifestation of disabling symp tom s." Id. See also Dunbar v. Barnhart, 330 F.3d 670 (5th Cir. 2003). The ALJ's basic d e c i s io n with respect to disability was upheld above, and there is no indication in this record t h a t a separate finding with regard to maintaining employment was required. A cc or di ng ly; I T IS RECOMMEND that the Commissioner's decision to deny benefits be a f f ir m e d and that Plaintiff's complaint be dismissed with prejudice. O b j e c t io n s Un der the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties a g g r i e v ed by this recommendation have ten (10) business days from service of this report and r e c o m m e n d a t i o n to file specific, written objections with the Clerk of Court, unless an e x t e n s io n of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another party's objections within ten (10) days after being served with a copy thereof. Counsel are d i r e c te d to furnish a courtesy copy of any objections or responses to the District Judge at the t i m e of filing. A party's failure to file written objections to the proposed findings, conclusions and r e c o m m e n d a t i o n set forth above, within 10 days after being served with a copy, shall bar that pa rty, except upon grounds of plain error, from attacking on appeal the unobjected-to

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p r o p o s e d factual findings and legal conclusions accepted by the district court. See Douglass v . U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc). THUS DONE AND SIGNED in Shreveport, Louisiana, this 26th day of January, 200 9.

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