McKnight vs. Social Security Adm

Filing 13

MEMORANDUM RULING re 1 Complaint filed by Mary Lee McKnight: For the reasons stated in the Memorandum Ruling issued this date, the court found that a remand is not in order. A judgment will be entered affirming the Commissioner's decision to deny benefits.Signed by Magistrate Judge Mark Hornsby on 9/25/09. (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 . L . M . (XXX-XX-7284) VERSUS M I C H A E L J. ASTRUE, COMM I S S IO N E R O F SOCIAL SECURITY

C I V I L ACTION NO. 08-cv-1242

M A G I S T R A T E JUDGE HORNSBY

M E M O R A N D U M RULING I n t r o d u c t io n P l a i n ti f f has a high school education but no past work during the relevant period. She a p p l i ed for Supplemental Security Income payments based on a claim that she is disabled due to depression. Plaintiff was 48 years old when ALJ W. Thomas Bundy issued a written dec ision that denied her claim. The Appeals Council denied a request for review. Plaintiff filed this civil action s e e k i n g judicial review pursuant to 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c) and t h e standing order of the district court governing social security cases, the action was referred to the undersigned for decision and entry of judgment. For the reasons that follow, the Co mm issio ner 's decision to deny benefits will be affirmed. Issues on Appeal P l a i n ti f f raises three issues on appeal. She argues that: (1) she does meet Listing 1 2 . 0 4 (affective disorders); (2) the ALJ's assessment of her residual functional capacity

( " R F C " ) is not based on substantial evidence; and (3) there is not substantial evidence to s u pp o rt the finding that there are jobs in the economy that she can perform. S t a n d a r d 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). An alys is T h o m a s Staats, Ph.D., conducted a consultative examination in October 2004. He n o t e d that Plaintiff reported suffering visual and auditory hallucinations, depression, memory p r o b l e m s , poor concentration, and similar problems. Plaintiff was being followed by the s t a f f at LSU Health Sciences Center, and she was taking a number of medications. Plaintiff said she had started developing psychiatric symptoms two or three years earlier and memory p ro b le m s about two years earlier. She said she had never been hospitalized for illness or in ju ry, but she had quit working as a housekeeper in about 2002 because of repeated i l l n e s s e s.

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Dr. Staats described Plaintiff's persistence and social interaction as "poor." He noted t h a t her responses were brief, she gave up easily, and she made only fleeting eye contact. S h e showed marginal social judgment and, overall, "she was able to interact poorly on a 1:1 basis due to blunted affect, tension, anxiety, dysphoria, hand wringing, some bradyphrenic r e s p o n d in g , sometimes giving up easily, keeping her head down a great deal of the time, and displa y in g only fleeting eye contact." Dr. Staats described Plaintiff's sustained concentration a n d adaptation as marginal. He opined that her prognosis was guarded to poor and said she a p p e a r e d to need more intense psychiatric intervention. He diagnosed schizoaffective d i s o r d er - d e p re s s e d type. Tr. 126-28. S a m u e l D. Thomas, Ed.D., conducted a consultative examination in January 2006, s o o n after the December 2005 hearing before the ALJ. Dr. Thomas reviewed Plaintiff's m e d i c a l records, mental health records, and the 2004 report by Dr. Staats. He also examined P l a i n ti f f , who repeated that she had never been hospitalized for treatment of psychiatric p ro b le m s and said she had experienced a decrease in auditory and visual hallucinations with med ication treatment. Plain tiff's ability to interact with the examiner appeared to be much improved since t h e examination by Staats. Dr. Thomas noted that Plaintiff's eye contact was within normal l i m i t s , she did not display any odd mannerisms, she was cooperative with a rapport easily e s t a b li s h e d and maintained, and she appeared to display her best efforts on all test items. P l a i n ti f f was, however, observed to be depressed.

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Dr. Thomas wrote that Plaintiff sustained concentration and persisted throughout the e x a m i n a t io n . Her persistence, pace, and concentration appeared to be commensurate with h e r level of intellectual functioning. Dr. Thomas concluded that Plaintiff's "communication a n d socialization skills appear to fall in the M ode ratel y Low range of adaptive functioning." L ik e Dr. Staats, he diagnosed schizoaffective disorder, but he also diagnosed major dep ress ive disorder with psychotic features, in partial remission. Dr. Thomas opined that Plaintiff would show moderate limitations in understanding, r e m e m b e r i n g , and carrying out simple instructions, interacting appropriately with the public, s u p e r v i s o r s , and co-workers, and that she would exhibit moderate to severe limitations r e s p o n d in g appropriately to work pressures and changes in routine work environment. He a l s o noted, among many other findings in his detailed report, that Plaintiff's ability to sustain effort and persist at a normal pace over the course of a workweek is also moderately limited. T r . 177-81. T h e ALJ gave "significant weight" to Dr. Thomas's opinion because "he is a licensed p s y c h o l o g i s t and his evaluation is consistent with the totality of the record." Based on that r e c o r d , the ALJ determined that Plaintiff had no exertional limitations of consequence, but s h e had nonexertional impairments roughly commensurate with the moderate limitations s u g g e s t ed by Dr. Thomas. Tr. 22. A vocational expert testified that a person with Plaintiff's v o c a t io n a l factors and that RFC could perform jobs such as janitor, floor waxer, cleaner,

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p a t c h worker, assembler, and finisher. Based on that testimony, the ALJ found at step five of the sequential analysis that Plaintiff was not disabled. Tr. 22-24. After the ALJ's decision, Plaintiff's counsel wrote Dr. Staats and asked him for a c l a r if i c a ti o n of the language Staats used to describe various mental impairments. Counsel n o t e d that Dr. Staats often, in his many consultative evaluations, describes mental activities s u c h as concentration and persistence using the words marginal, poor, adequate, and the like. How ever, the agency uses the terms none, mild, moderate, marked, and extreme. Counsel a s k e d Dr. Staats how his scale corresponds to the terms used by the agency. Dr. Staats sent a one-page fax that set forth the following: Adequate/fair = none M argina l = mild M argina l-to-po or = moderate P o o r = marked to extreme I m pa ir ed = extreme T r. 204-05. The Appeals Council considered the letters and found that they did not provide a basis for changing the ALJ's decision. Tr. 5-6. Plaintiff's first argument on appeal is that she meets the requirements of Listing 12.04 b e c a u s e she has marked restrictions in maintaining social functioning and marked difficulties in maintaining concentration, persistence or pace. Plaintiff argues that she meets those requ ireme nts because Dr. Staats described her limitations in those functions as "poor," which h i s later fax suggested meant marked to extreme.

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P l a i n ti f f bears the burden of establishing at step three that she meets a listing. She has p r e s e n te d , based on Dr. Staats' subsequent fax, some evidence to support her argument. But there is more compelling evidence in the form of Dr. Thomas's more recent and detailed o p i n i o n that the ALJ favored and that had the benefit of employing the correct terminology. T h e ALJ was within his bounds to favor the competing firsthand report from Dr. Thomas and d e c i d e , based on it, that Plaintiff does not meet the requirement of a listing so that she would b e automatically deemed disabled despite her age, education, or work experience. And the Ap peals Council was not required to reverse the ALJ's decision based on the fax. There was still a credible evidentiary choice on which the ALJ's decision could soundly rest, and the u n e x p l a in e d fax frankly gives rise to as many questions as it might answer. One might r e a s o n a bl y wonder whether Dr. Staats really means that a person with, for example, "ma rginal" social functioning has only a mild impairment while a person described in a report as having "impaired" social functioning has an extreme limitation in that area. The d e s c r ip t i o n s are not intuitively consistent. The answer to this issue is for the agency to insist t h a t consultants use the terminology found in the regulations or well known diagnostic ma nua ls. Plaintiff next argues that the ALJ's assessment of her RFC is not based on substantial e v i d e n c e because it was not known at the time of the hearings how Dr. Staats' reports should b e understood. Plaintiff urges that if the VE had been asked to assume marked limitations, b a s e d on Dr. Staats' use of the term poor, there likely would not have been jobs available.

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T h a t assumes, once again, that the ALJ would be compelled to accept the explained version o f Dr. Staats' findings. The ALJ obviously preferred the report of Dr. Thomas and placed s i g n if i c a n t weight on it. Dr. Thomas's report provided a credible evidentiary choice and, t hu s , substantial evidence to support the ALJ's RFC. Plain tiff's final issue is a general assertion that she is disabled and an argument that, if she prevailed on one of her other claims, a finding of disabled rather than a remand would b e in order. The court found above that there was substantial evidence to support the ALJ's d e c i s io n , so a remand is not in order. C o m m i s s i o n e r ' s decision to deny benefits. T H U S DONE AND SIGNED in Shreveport, Louisiana, this 25th day of September, 200 9. The judgment will be entered affirming the

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