Davis v. Astrue

Filing 21

MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. A separate judgment in accordance with this Memorandum and Order is entered this same date. Signed by Honorable Catherine D. Perry on 9/13/2010. (RJD)

Davis v. Astrue

Doc. 21

UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF MISSOURI E A S T E R N DIVISION C L IF F O R D L. DAVIS, P la in t if f , v s. M IC H A E L J. ASTRUE, C o m m issio n er of Social Security, D e f e n d an t. ) ) ) ) ) ) ) ) ) )

C ase No. 4:09CV934 CDP

M E M O R A N D U M AND ORDER T h is is an action under 42 U.S.C. § 405(g) for judicial review of the C o m m issio n er's final decision denying Clifford L. Davis's application for d isab ility insurance benefits under Title II of the Social Security Act (Act), 42 U .S .C . §§ 401, et seq., and supplemental security income benefits under Title XVI o f the Act, 42 U.S.C. §§ 1381 et seq. Davis claims he is disabled because he suffers from multiple heart im p airm en ts, depression, and side effects from the medication he is prescribed. Because I conclude that the Administrative Law Judge's decision denying benefits is supported by substantial evidence, I will affirm the decision. P r o c ed u r a l History O n March 10, 2006, Davis filed applications for disability insurance benefits an d supplemental security income pursuant to Titles II and XVI of the Act. Davis

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a lle g e s that his disability began on March 3, 2006, when he suffered a heart attack th at revealed he suffered from multiple heart issues. The Social Security Administration initially denied his application on July 1 1 , 2006, and Davis filed a timely request for a hearing by an ALJ. The ALJ issu ed an opinion upholding the denial of benefits on February 22, 2008. After the A L J's final decision Davis submitted additional evidence regarding his depression. The Social Security Administration Appeals Council reviewed Davis's record with th e additional evidence and denied his request for further review on April 10, 2009. T estim o n y Before the ALJ A t the time of the administrative hearing Davis was forty-five years o ld , and lived with his wife and son. Davis testified that he had finished the eighth g rad e,1 was 5'8" tall and weighed two hundred and ten pounds. D a v is stated that he suffered from numerous heart issues that began w h e n he had a heart attack on March 3, 2006. While hospitalized for this heart attack , Davis was diagnosed with multiple heart ailments and prescribed certain m e d ic atio n s . Davis claims that since his heart attack he is tired all the time, has d ifficu lty breathing and has chest and back pain. He also stated that his medication h as side effects that cause him to frequent the bathroom and contribute to his

In his testimony Davis stated that he did not have a GED, but in his disability report he indicated that he did have a GED. -2-

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g en eral tiredness. A t the time of his heart attack Davis believed he had pneumonia, and only after going to the hospital did he discover that he had congestive heart failure. He testified that the doctors inserted a cardiac catheter and balloon pump to help a lle v ia te the strain on his heart from the congestive heart failure. Davis testified th at he was being treated by his primary cardiologist Dr. Lewen, and saw him e v e ry three to six months. He has also continued to see his primary physician, Dr. Jo h n so n . Davis claims his ailments are affected by weather, as hot or cold weather can make it more difficult for him to breath and causes him chest pain. Davis also stated that he is unable to handle stress effectively, and any stress causes him chest p ain , fatigue and anxiety. Davis claims that even a small amount of stress, a phone call from a family member, can cause him difficulty. D av is said that during a typical day he does chores, such as cleaning the d ish es, cooking, vacuuming and doing the laundry. He testified that although he can do the chores he has to sit down and rest every ten to fifteen minutes if he is stan d in g . He stated that on a good day he could stand forty-five minutes at a time w h ile doing chores. Davis also usually does the grocery shopping with his wife but they try to

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av o id larger stores that will require too much walking, such as Wal-Mart, and he can only unload grocery bags lighter than fifteen pounds. Davis volunteers at his c h u r c h 's food pantry. At the food pantry Davis will hand out food and keep track o f everyone who has been given food. Davis also frequently visits his wife and frien d s while they are at work. If he does stay at home he is generally watching telev isio n or on the phone with his friends and family. D av is has worked a series of different jobs in his life. Davis testified that he w as last employed in December of 2005, when he worked for the Huddle House R estau ran t as a grill cook for a year and a half. He quit that job for reasons u n r ela te d to his health. Prior to that he worked as a contractor for Southwestern B ell for six and a half years until he suffered a shoulder injury, and before that he h a d worked as a mechanic. D av is stated that he cannot return to his prior employment because working o v er a grill would create too much heat and tension, and working for a cable laying co m p an y is too physically demanding for what his body can now do. Medical Records O n March 3, 2006, Davis went to the hospital believing he was suffering fro m pneumonia, but treating physicians determined that he had actually had a h e a rt attack. While at the hospital Davis underwent: cardiac catheterization; left

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v en tricu lo g rap h y; selective coronary arteriography; insertion of intra-aortic balloon p u m p ; attempted percutaneous transluminal coronary intervention of LAD. This r ev e a le d severe left ventricular systolic dysfunction and significant coronary artery d isease with total occlusion of proximal LAD and total occlusion of distal posterior d e s ce n d in g branch of the right coronary artery. On March 8, 2006, an e ch o c ar d io g r am (ECHO) showed both left and right atrial enlargement, left v e n tr ic u la r hypertrophy, left ventricular enlargement, moderate global left v en tricu lar hypokinesis, extensive akinetic anterior wall compatible with ischemia o r infarction and mild mitral insufficiency. About three weeks later Davis again reported to the emergency room, after f ee lin g chest and shoulder pains. His cardiologist, Dr. Mark K. Lewen, stated that h e fell into class I in the New York Heart Association classification system and stag e B in the American Heart Association classification system. These classificatio n s mean relatively mild heart disease with no or only slight limitations o f physical activity. On April 11, 2006 Davis was hospitalized after complaining of continuous left shoulder pain, which is consistent with angina. The following day a chest PA s h o w e d mild cardiomegaly but no evidence of heart failure. A myocardial v iab ility study revealed a large defect in the anterior wall and the apex and

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p e r sis te n t diminished activity in the inferior wall, consistent with his earlier d ia g n o s is . At follow-up visits in May and June Dr. Lewen noted that plaintiff was "d o in g relatively well" and that his ejection fraction had improved to 25 to 35 p ercen t and that his disease was "clinically stable." Dr. Lewen noted that Davis w a s depressed because of changes the heart attack had made on his life. A few months later on July 6, 2006, Davis's primary general physician, Dr. W illiam D. Johnson, completed a Medical Source Statement of Ability to Do W o rk -R elated Activities. In this document Dr. Johnson reported that Davis's a b ility to lift, stand, push and pull, were all affected by his heart impairments. Dr. Jo h n so n noted that Davis's ability to stand was limited by his heart ailments, but h is ability to sit during a workday was not. Dr. Johnson also noted that Davis's ab ility to tolerate temperature extremes was limited. In October of 2006 Dr. Lewen again saw Davis and again reported that his h eart condition was stable. He noted the continued depression and gave Davis sa m p les of Lexapro. In December of 2006, Dr. Lewen reported that Davis's ejectio n fraction was between 35-40 percent. Dr. Lewen also noted that Davis is a b le to exercise and work moderately without chest pain. Dr. Lewen recognized th a t Davis may have anxiety and depression issues and recommended that he seek a psychiatric evaluation. As he had before, he again told Davis that he should stop

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s m o k in g . In April of 2007, Dr. Lewen confirmed that Davis was prescribed Plavix and su ffered from coronary artery disease, status-post myocardial infarction with su b seq u en t significant reduction in left ventricular functions and ischemic card io m yo p ath y. Dr. Lewen noted that Davis's symptoms were consistent with N ew York Heart Association class II-III, and had been compensated by m ed icatio n . Another ECHO Doppler done in April 2007 revealed that the ejection fractio n remained within 30-40 percent range. On May, 8, 2007, Dr. Johnson authored a letter in which he stated that D a v is 's current ejection fraction was less than 35 percent and that it was Dr. Jo h n so n 's opinion and recommendation that Davis seek disability because he is u n ab le to work full or part time. The following month Davis reported that he was, "in a funk" and frequently tired to Dr. Johnson. Dr. Johnson noted that Davis had h eart palpitations, shortness of breath and weakness. In September of 2007 Dr. Lewen again saw Davis. Dr. Lewis indicated D av is had no symptoms consistent with angina and stated that he Davis's "chest p ain is atypical and most likely noncardiac." He indicated that Davis continued to s m o k e and also took nitrogylcerin for the chest pains even though Dr. Lewen had to ld him not to.

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In March and April of 2008, following the ALJ's decision denying benefits, D av is saw both a clinical social worker and a licensed professional counselor. He rep o rted to the social worker that he had suicidal ideation for the past two years, b u t the counselor indicated he reported no suicidal thoughts. Both diagnosed him w ith depression. The records of the social worker, dated March 4, 2008, indicate th at he had been taking Prozac. The records of the psychologist, dated April 7, 2 0 0 8 , indicate that he had been taking Wellbutrin. There is no evidence in the reco rd regarding whether these medications had helped him. Legal Standard A court's role on review is to determine whether the Commissioner's fin d in g s are supported by substantial evidence on the record as a whole. Gowell v. A p fe l, 242 F.3d 793, 796 (8th Cir. 2001). Substantial evidence is less than a p rep o n d eran ce, but is enough so that a reasonable mind would find it adequate to su p p o rt the ALJ's conclusion. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2 0 0 0 ) . As long as there is substantial evidence on the record as a whole to support th e ALJ's decision, a court may not reverse it because substantial evidence exists in the record that could have supported a contrary outcome. Id. Nor may a court rev erse the ALJ's decision because it would have decided the case differently. Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992). In determining whether

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ex istin g evidence is substantial a court considers "evidence that detracts from the C o m m is sio n e r's decision as well as evidence that supports it." Singh v. Apfel, 222 F .3 d 448, 451 (8th Cir. 2000) (quoting Warbuton v. Apfel, 188 F.3d 1047, 1050 (8 th Cir. 1999)). To determine whether the decision is supported by substantial evidence, the c o u r t is required to review the administrative record as a whole to consider: ( 1 ) the credibility findings made by the Administrative Law Judge; (2 ) the education, background, work history, and age of the claimant; (3 ) the medical evidence from treating and consulting physicians; (4 ) the plaintiff's subjective complaints relating to exertional and nonex ertio n al impairments; (5 ) any corroboration by third parties of the plaintiff's impairments; and (6 ) the testimony of vocational experts when required which is based upon a p ro p er hypothetical question. B ra n d v. Sec'y of Dep't of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1 9 8 0 ). Disability is defined in the social security regulations as the inability to en g ag e in any substantial gainful activity by reason of any medically determinable p h y sic al or mental impairment which can be expected to result in death or which h as lasted or can be expected to last for a continuous period of not less than twelve m o n th s. 42 U.S.C. § 416(i)(1); 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. §
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4 0 4 .1 5 0 5 (a); 20 C.F.R. § 416.905(a). In determining whether a claimant is d isab led , the Commissioner must evaluate the claim using a five-step procedure. First, the Commissioner must decide if the claimant is engaging in any su b stan tial gainful activity. If the claimant is engaging in substantial gainful activ ity, he is not disabled. Next, the Commissioner determines if the claimant has a severe impairment th a t significantly limits the claimant's physical or mental ability to do basic work activ ities. If the claimant's impairment is not severe, he is not disabled. If the claimant has a severe impairment, the Commissioner evaluates w h eth er the impairment meets or exceeds a listed impairment found in 20 C.F.R. P art 404, Subpart P, Appendix 1. If the impairment satisfies a listing in Appendix 1 , the Commissioner will find the claimant disabled. If the Commissioner cannot make a decision based on the claimant's current w o rk activity or medical facts alone, and the claimant has a severe impairment, the C o m m issio n er reviews whether the claimant can perform his past relevant work. If the claimant can perform his past relevant work, he is not disabled. If the claimant cannot perform his past relevant work the Commissioner m u s t evaluate whether the claimant can perform other work in the national eco n o m y. If not, the Commissioner declares the claimant disabled. 20 C.F.R. § 4 0 4 .1 5 2 0 ; 20 C.F.R. § 416.920.
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W h en evaluating evidence of pain or other subjective complaints of the p la in tif f, the ALJ is never free to ignore the subjective testimony of the plaintiff, ev en if it is uncorroborated by objective medical evidence. Basinger v. Heckler, 7 2 5 F.2d 1166, 1169 (8th Cir. 1984). The ALJ may, however, disbelieve a claim an t's subjective complaints when they are inconsistent with the record as a w h o le. See, e.g., Battles v. Sullivan, 902 F.2d 657, 660 (8th Cir. 1990). In c o n s id e r in g subjective complaints, the ALJ is required to consider the factors set o u t by Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984), which include: claim an t's prior work record, and observations by third parties and treating an d examining physicians relating to such matters as: (1) the objective m ed ical evidence; (2) the subjective evidence of the duration, frequency and in ten sity of plaintiff's pain; (3) any precipitating or aggravating factors; (4) th e claimant's daily activities; (5) the dosage, effectiveness and side effects o f any medication; and (6) the claimant's functional restrictions. Id. at 1322. T h e ALJ's Findings The ALJ found that Davis was not disabled considering his age, education, w o rk experience and residual functioning capacity. He issued the following sp ecific findings:

1. T h e claimant meets the insured status requirements of the Social S ecu rity Act through December 31, 2010. 2. T h e claimant has not engaged in substantial gainful activity since M arch 3, 2006, the alleged onset date. (20 C.F.R. §§ 404.1520(b), 404.1571 et
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seq ., 416.920(b) and 416.971 et seq.). 3. The claimant has the following severe impairments: status post m y o c ar d ia l infarction, cardiac ischemia, cardiomyopathy and toxic tobacco abuse. (2 0 C.F.R. §§ 404.1520(c) and 416.920(c)). 4. T h e claimant does not have an impairment or combination of im p airm en ts that meets or medically equals one of the listed impairments in 20 C .F .R . Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 4 0 4 .1 5 2 6 , 416.920(d), 416.925 and 416.926). 5. A fter careful consideration of the entire record the ALJ found that the c la im a n t had the residual functional capacity to perform a full range of sedentary w o rk . Within less than 12 continuous months of his alleged onset date, the claim an t could occasionally stand and walk for up to a total of 2 hours over an 8 h o u r work day, could sit for six of eight work hours, and could lift and carry up to 1 0 pounds. 6. T h e claimant is unable to perform any past relevant work (20 CFR 4 0 4 .1 5 6 5 and 416.965). 7. T h e claimant was born on October 6, 1962 and was 43 years old w h ic h is defined as a younger individual age 18-44, on the alleged disability onset d a te (20 CFR 404.1562 and 416.963). 8. T h e claimant has a high school education and communicates in E n g lis h (20 CFR 404.1564 and 416.964). 9. T h e claimant's past relevant work did not provide him with skills that c an be directly utilized in sedentary work (20 CFR 404.1568 and 416.968). 1 0 . C o n sid erin g the claimant's age, education, work experience, and resid u al functional capacity, there are jobs that exist in significant numbers in the n atio n al economy that the claimant can perform (20 CFR 404.1560(c), 404.1566, 4 1 6 .9 6 0 (c), and 416.966). 11. T h e claimant has not been under a disability, as defined in the Social S ecu rity Act from March 3, 2006 through the date of this decision (20 CFR 4 0 4 .1 5 2 0 (g ) and 416.920(g)).
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D isc u s s io n A s previously mentioned, when reviewing a denial of Social Security b e n e f its , a court must determine whether there is substantial evidence on the record as a whole to support the ALJ's decision. 42 U.S.C. § 405(g). In this case, Davis claim s that the ALJ's decision was not based on substantial evidence, and that the A L J improperly gave little weight to the medical opinions of Davis's primary p h y sic ia n , Dr. Johnson. He argues that the ALJ ignored Davis's nonexertional lim itatio n s, improperly used the Medical-Vocational Guidelines (GRID) to d eterm in e Davis's Residual Functional Capacity (RFC), and failed to set forth and s p e cif y Davis's physical and mental limitations and how those limitations affect h is RFC. Davis claims that the ALJ ignored his nonexertional limitations of pain, fatig u e, shortness of breath, environmental limitations, depression, and the side effects of his medication, Plavix. The Commissioner argues that the ALJ correctly co n sid ered Davis's claimed ailments including the side effects of his medications an d either took them into consideration or properly discredited them. An ALJ is "required to develop the record fully, and fairly, an ALJ is not r eq u ir ed to discuss every piece of evidence submitted." Black v. Apfel, 143 F.3d 3 8 3 , 386 (8th Cir. 1998). That being said the "failure to cite specific evidence does

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n o t indicate such evidence was not considered." Id. In this case the ALJ made specific references to Davis's chest pains, b reath in g issues, temperature limitations, possible depression, and medication side effects in determining whether Davis could return to past relevant work or could p erfo rm any other work in the current economy. After reviewing the record the A L J determined that Davis's ailments would likely prevent most types of work, b u t would allow him to engage in sedentary work that is mostly indoors. In r ea ch in g this decision the ALJ relied on the Medical-Vocational guidelines (G R ID ). Davis claims that the this reliance on the GRID was improper because he h as both exertional and nonexertional limitations. Davis argues that his pain, d ep ressio n and issues with extreme temperatures are nonexertional impairments w h ich should have lead the ALJ to call a vocational expert. "W h ere the claimant has a nonexertional impairment, such as pain, the ALJ m ay not exclusively rely on the vocational grids to determine disability but must a ls o consider the testimony of a vocational expert." Haley v. Massanari, 258 F.3d 7 4 2 , 747-48 (8th Cir. 2001). While a vocational expert is generally required to testify regarding a claimant's nonexertional limitations, if the allegations of n o n ex ertio n al limitations are "appropriately discredited for legally sufficient reaso n s, such as inconsistencies in the record evidence, the ALJ may employ the g u id e lin e s to direct a determination of not disabled." Cline v. Sullivan, 939 F.2d
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5 6 0 , 565 (8th Cir. 1991). Additionally, "the ALJ may discount subjective c o m p la in ts of pain if inconsistencies are apparent in the evidence as a whole." Id. at 748, citing Gray v. Apfel, 192 F.3d 799, 803 (8th Cir. 1999). Therefore, the q u estio n becomes whether the ALJ properly weighed the inconsistencies of D av is's claims and properly discredited Davis's testimony. The Commissioner claims that the ALJ in this case had valid reasons to d iscred it Davis's claims of nonexertional impairments. For the ALJ to properly d iscred it subjective complaints and evidence of nonexertional impairments he must co n sid er both the subjective and the objective factors set out by Polaski, including h is subjective complaints, prior work record, observation of third parties and treatin g doctors, daily activities, pain, precipitating and aggravating factors, m ed icatio n s, and functional restrictions. Id. at 1322. While the ALJ must use th ese factors to determine the credibility of the claimant's complaints of n o n ex ertio n al impairments, the ALJ does not need to discuss every Polaski factor. Casey v. Astrue, 503 F.3d 687, 695 (8th Cir. 2007). "As is true in many disability cases, there is no doubt that the claimant is experiencing pain; the real issue is how s ev e r e that pain is." Thomas v. Sullivan, 928 F.2d 255 (8th Cir. 1991). In this case the ALJ properly mentioned the Polaski factors and used those th at were applicable in his decision to discredit Davis's complaints of pain and o th er nonexertional limitations. The ALJ determined that Davis's claims of pain
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w ere contradicted by his daily activities. During his testimony Davis stated that he co o k s, does the dishes and laundry, sweeps, vacuums, visits his wife and his frien d s, goes shopping and volunteers at a food pantry. Performing this wide range o f activities contradicts his statements of extreme pain. Davis's "ability to perform th ese activities does not disprove disability as a matter of law, [but] `in co n sisten cies between subjective complaints of pain and daily living patterns m a y . . . diminish credibility." Casey, 503 F.3d at 696, quoting Pena v. Chater, 76 F .3 d 906, 908 (8th Cir. 1996). The ALJ found that duration and intensity of Davis's pain was less severe th an claimed, noting that Davis has not been hospitalized since April 2006 and the m e d ic al record has ample evidence that shows improvements in his condition, such as an improved ejection fraction. Moreover, the medical records do not reveal any n o n -ex ertio n al limitation. Dr. Lewen's reports consistently refer to exertional pain o n ly . T h e ALJ also found Davis's statements to be suspect because of certain in co n sisten cies between his disability report and the testimony he gave in front of th e ALJ. During the testimony Davis claimed he had only an 8th grade education, h as trouble with reading comprehension, denied having a GED, and left a previous w o rk placement because of a scheduling issue. However, the disability reports states that Davis does had a GED, reads and understands English, and left his
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p rev io u s job because his wife was also working there. The ALJ considered evidence from both of Davis's treating physicians, Dr. Jo h n so n and Dr. Lewen, but credited Dr. Lewen's evidence over the opinions of D r. Johnson. Generally, the opinions of treating physicians are given controlling w eig h t if their opinions are well supported by medically acceptable clinical and la b o r a to r y diagnostic techniques and are not inconsistent with other substantial ev id en ce in the record. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). See Ghant v. B o w e n , 930 F.2d 633, 639 (8th Cir. 1991); See also Kelley v. Calahan, 133 F.3d 5 8 5 , 589 (8th Cir. 1998). "[T]he ALJ must defer to a treating physician's opinions ab o u t the nature and severity of a claimant's impairments, `including symptoms, d iag n o sis and prognosis, what an applicant is capable of doing despite the im p a ir m e n t, and the resulting restrictions." Ellis v. Barnhart, 392 F.3d 988, 955 ( 8 th Cir. 2005) (citing 20 C.F.R. pt. 404(a)(2)). T h e ALJ and the Commissioner concluded that Dr. Johnson's opinions were n o t entitled to controlling weight in this case because his opinions were in co n sisten t with the objective medical evidence and Dr. Lewen's treatment reco rd s. The ALJ credited Dr. Lewen's evidence because he was the treating card io lo g ist. This is a proper application of the law to the evidence. See Hensley v. Barnhart, 352 F.3d 353 (8th Cir. 2003) (opinions of treating specialist are en titled to more weight than opinions of treating primary care physician). There is
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n o mention in Dr. Lewen's notes that Davis could not work, and his records are e n tir ely consistent with the ALJ's conclusions. The ALJ and the Commissioner p o in t out several inconsistencies between Dr. Johnson's and Dr. Lewen's notes. For example Dr. Johnson diagnosed Davis with a NYHA class II-III while Dr. J o h n s o n diagnosed Davis with a NYHA class IV, and Dr. Lewen believed that D a v is was able to moderately exercise. The ALJ did not fail to properly consider th e treating physicians' opinions. T h e ALJ set forth Davis's impairments and made the determination that he w o u ld be unable to return to his past relevant work due to his physical limitations an d Davis's description of the work he had done. After making this finding the A L J went on to determine that even with Davis's ailments there was nothing in the reco rd to suggest that Davis would be limited in the amount of time he can sit and p erfo rm sedentary work. The ALJ took into consideration the entire record, in c lu d in g the complaints of exertional and nonexertional impairments, and made a d eterm in atio n based on substantial evidence on the record that Davis's limitations w o u ld have little to no effect on his ability to engage in sedentary work. D a v is also argues that the ALJ improperly failed to consider his mental im p airm en ts. At the time of the hearing, the only evidence regarding depression w ere the physician's notes indicating that Davis was suffering some depression related to his heart attack. Dr. Lewen had recommended a psychiatric evaluation,
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b u t Davis did not seek an evaluation until after the ALJ had denied benefits. Dr. L ew en also noted that he had provided Davis with a sample of an anti-depressant, b u t there is no record of whether Davis ever took the drug. After the ALJ entered his opinion denying benefits, Davis was seen by two m en tal health professionals, and he submitted their records to the Appeals Council. W h en the claimant submits additional evidence after the ALJ's decision is ren d ered , and the "Appeals Council considers new evidence but denies review, we m u s t determine whether the ALJ's decision was supported by substantial evidence o n the record as a whole, including the new evidence." Davidson v. Astrue, 501 F .3 d 987, 990 (8th Cir. 2007). Even considering the new evidence, substantial evidence still supports the A L J's decision denying benefits. Although Davis has been diagnosed with d ep ressio n , he never sought treatment for depression until after the date of the A L J's decision, and Davis has no record of any psychiatric hospitalizations or e p is o d e s whatsoever. There is not any evidence that suggests any severe mental h ealth issues in Davis's life besides his recent diagnosis and GAF scores. Significantly, there was little to no discussion of any mental health concerns during th e hearing. Davis's reports to the mental health professionals were inconsistent. To the first he reported suicidal ideation for the past two years, but he had never rep o rted this to the treating physicians at the time, and he did not report this to the
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s ec o n d mental health professional did not indicate suicidal ideation. Davis' failure to seek treatment when recommended earlier detracts from the claim that his d ep ressio n , when considered in combination with his heart condition, limits his ab ility to work. Based on my consideration of the record as a whole, including the posth earin g mental health records, I conclude that the Commissioner's decision d e n y in g benefits is based on substantial evidence. A c c o r d in g l y , IT IS HEREBY ORDERED that the decision of the Commissioner is affirm ed . A separate judgment in accordance with this Memorandum and Order is e n te re d this same date.

C A T H E R IN E D. PERRY U N IT E D STATES DISTRICT JUDGE

Dated this 13th day of September, 2010.

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