Bush v. Astrue
Filing
17
ORDER denying plaintiff's motion for judgment and affirming the decision of the Commissioner. Signed on 9/13/13 by Magistrate Judge Robert E. Larsen. (Wilson, Carol)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
CARL BUSH o/b/o SUSAN BUSH,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
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Case No.
12-1061-CV-W-REL-SSA
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Carl Bush, substituted as plaintiff in this case after his wife, the claimant, passed
away, seeks review of the final decision of the Commissioner of Social Security denying
Susan Bush’s application for disability benefits under Titles II and XVI of the Social
Security Act (“the Act”). Plaintiff argues that the ALJ erred in failing to cite a medical
basis for his opinion and instead relying on an improper credibility analysis and the fact
that the Appeals Council had affirmed plaintiff’s prior unfavorable decision only four
months before the hearing in this case. I find that the substantial evidence in the record
as a whole supports the ALJ’s finding that plaintiff was not disabled. Therefore,
plaintiff’s motion for summary judgment will be denied and the decision of the
Commissioner will be affirmed.
I.
BACKGROUND
On May 6, 2009, plaintiff Susan Bush applied for disability benefits under Title II
and on November 27, 2009, she applied for supplemental security income under Title
XVI alleging that she had been disabled since November 1, 2005. Plaintiff’s disability
stems from degenerative disc disease in her lumbar spine, hypertension, hypo-
thyroidism, and depression. Plaintiff’s application was denied on February 5, 2010. On
January 28, 2011, a hearing was held before an Administrative Law Judge. Carl Patrick
Bush had been substituted as plaintiff due to the death of Susan Bush on January 10,
2010. In this order, the term “plaintiff” refers to Susan Bush unless otherwise indicated.
On February 9, 2011, the ALJ found that plaintiff was not under a “disability” as defined
in the Act. On June 15, 2012, the Appeals Council denied plaintiff’s request for review.
Therefore, the decision of the ALJ stands as the final decision of the Commissioner.
II.
STANDARD FOR JUDICIAL REVIEW
Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a
“final decision” of the Commissioner. The standard for judicial review by the federal
district court is whether the decision of the Commissioner was supported by substantial
evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971);
Mittlestedt v. Apfel, 204 F.3d 847, 850-51 (8th Cir. 2000); Johnson v. Chater, 108 F.3d
178, 179 (8th Cir. 1997); Andler v. Chater, 100 F.3d 1389, 1392 (8th Cir. 1996). The
determination of whether the Commissioner’s decision is supported by substantial
evidence requires review of the entire record, considering the evidence in support of
and in opposition to the Commissioner’s decision. Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951); Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989). “The
Court must also take into consideration the weight of the evidence in the record and
apply a balancing test to evidence which is contradictory.” Wilcutts v. Apfel, 143 F.3d
1134, 1136 (8th Cir. 1998) (citing Steadman v. Securities & Exchange Commission, 450
U.S. 91, 99 (1981)).
2
Substantial evidence means “more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. at 401; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5
(8th Cir. 1991). However, the substantial evidence standard presupposes a zone of
choice within which the decision makers can go either way, without interference by the
courts. “[A]n administrative decision is not subject to reversal merely because
substantial evidence would have supported an opposite decision.” Id.; Clarke v.
Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988).
III.
BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS
An individual claiming disability benefits has the burden of proving he is unable
to return to past relevant work by reason of a medically-determinable physical or mental
impairment which has lasted or can be expected to last for a continuous period of not
less than twelve months. 42 U.S.C. § 423(d)(1)(A). If the plaintiff establishes that he is
unable to return to past relevant work because of the disability, the burden of
persuasion shifts to the Commissioner to establish that there is some other type of
substantial gainful activity in the national economy that the plaintiff can perform.
Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000); Brock v. Apfel, 118 F. Supp. 2d
974 (W.D. Mo. 2000).
The Social Security Administration has promulgated detailed regulations setting
out a sequential evaluation process to determine whether a claimant is disabled. These
3
regulations are codified at 20 C.F.R. §§ 404.1501, et seq. The five-step sequential
evaluation process used by the Commissioner is outlined in 20 C.F.R. § 404.1520 and
is summarized as follows:
1.
Is the claimant performing substantial gainful activity?
Yes = not disabled.
No = go to next step.
2.
Does the claimant have a severe impairment or a combination of
impairments which significantly limits his ability to do basic work activities?
No = not disabled.
Yes = go to next step.
3.
Does the impairment meet or equal a listed impairment in Appendix 1?
Yes = disabled.
No = go to next step.
4.
Does the impairment prevent the claimant from doing past relevant work?
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.
5.
Does the impairment prevent the claimant from doing any other work?
Yes = disabled.
No = not disabled.
IV.
THE RECORD
The record consists of the testimony of plaintiff’s husband Carl Bush and
vocational expert Clarence Hulett, in addition to documentary evidence admitted at the
hearing.
A.
ADMINISTRATIVE REPORTS
The record contains the following administrative reports:
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Earnings Record
The record establishes that plaintiff earned the following income from 1977
through 2010, shown in actual and indexed figures:
Year
Actual
Indexed
1977
$ 390.85
$ 1,652.01
1978
4,302.02
16,845.71
1979
6,800.51
24,487.12
1980
9,838.88
32,500.19
1981
4,247.18
12,746.37
1982
9,048.13
25,737.76
1983
9,987.96
27,091.38
1984
10,069.72
25,796.70
1985
10,828.13
26,606.04
1986
11,470.71
27,372.50
1987
12,654.63
28,387.29
1988
16,875.98
36,079.79
1989
16,954.92
34,866.15
1990
13,855.89
27,236.70
1991
11,028.76
20,900.51
1992
3,583.13
6,457.64
1993
7,036.08
12,572.53
1994
10,872.22
18,919.41
1995
12,668.00
21,194.80
1996
16,421.00
26,192.95
1997
14,815.02
22,328.39
1998
14,410.41
20,638.40
1999
11,415.17
15,485.66
2000
16,929.34
21,762.64
5
2001
16,525.10
20,748.02
2002
20,194.32
25,103.13
2003
17,220.91
20,896.14
2004
18,534.99
21,491.57
2005
19,352.45
21,647.34
2006
4,457.85
4,767.36
2007
0.00
0.00
2008
0.00
0.00
2009
0.00
0.00
2010
0.00
0.00
(Tr. at 146-147).
Death Certificate
Plaintiff died on January 20, 2010 (Tr. at 142).
Disability Report - Field Office
In a Disability Report completed on November 25, 2009 (approximately two
months before plaintiff’s death), L. Hopkins of Disability Determinations met with plaintiff
face to face (Tr. at 149-153). The interviewer observed that plaintiff was polite and
cooperative and able to answer questions effectively. “She did tear up several times
during the interview. She used a cane, and her gait was very slow. She had trouble
getting up out of her chair, and she also had to shift her weight while sitting during the
interview. She appeared to be very uncomfortable, in pain, and despondent.” The
interviewer noted that plaintiff had no difficulty concentrating, understanding, answering,
or coherency. The form indicates that plaintiff had previously filed applications for
disability and had been denied most recently on July 31, 2009.
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Disability Report
In an undated Disability Report, plaintiff stated that she had degenerative arthritis
of the lumbar spine, disc disease, depression, and high blood sugar. “I have fallen
several times (7/1/09, 8/6/09, 8/9/09, and 8/26/09).” Plaintiff said she could sit for 10 to
15 minutes at a time and stand for 15 to 20 minutes at a time and after that she would
get dizzy. She could lift no more than 5 pounds. “It’s only 14 steps from the couch to
the bathroom, and often I don’t even make it that far w/o an accident. I use a cane on a
daily basis.”
Function Report
In a Function Report dated December 6, 2009, plaintiff reported that her daily
activities include the following: She gets up at 8:30 a.m., uses the restroom, takes her
medication, lies down until 12:30 when she takes more medication and drinks a glass of
water. At 3:00 p.m. she gets a cup of coffee and goes back to the couch, props up
pillows and lies against them. At 5:00 p.m. she uses the restroom. At 7:00 p.m. she
gets something to eat. At 9:00 p.m. she uses the restroom and then goes to sleep for
the night (Tr. at 174-181). She constantly wakes up during the night. She has
problems putting on her pants, socks and shoes. She is unable to get in and out of the
bath tub due to falling. Her arms go numb and she has difficulty bending them when
she tries to care for her hair. She is able to feed herself. She has to use a grab bar to
use the toilet. She does not need reminders to take care of personal needs and
grooming or to take her medication. She prepares her own meals, “very quick like
frozen dinners.” She does no housework or yard work. She has unbearable pain in her
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shoulders, she get dizzy and sees stars when she stands for too long, she feels faint,
she is afraid of falls, she has pain in her lower back and legs, she has a loose feeling in
her hands and arms. When she goes out, she rides in a car. She does not go out alone
because she is afraid. She does not drive due to pain. Her husband does all the
shopping. She watches television for about six hours per day but sometimes her vision
gets blurry or she sees double. She has no problems getting along with others, but she
does not go anywhere. Her condition affects her ability to lift, squat, bend, stand, walk,
sit, kneel, climb stairs, see, remember, complete tasks, concentrate, and use her
hands. She does not have difficulty with reaching, talking, hearing, understanding or
following instructions. Walking the 14 steps to her bathroom causes her to sweat. She
does not finish what she starts, she does not handle changes in routine well, and she
does not handle stress as well as she used to. She uses a cane but it was not
prescribed by a doctor.
Function Report - Third Party
Plaintiff’s husband completed a Function Report - Third Party on December 20,
2009 (Tr. at 204-206). He reported that plaintiff’s condition does not affect her ability to
use her hands, follow instructions, understand, reach, see, remember or concentrate.
He noted that she cries a lot and sleeps a lot. He reported that she uses a cane and
crutches when her pain is bad.
Previous Denial
On August 4, 2009, Administrative Law Judge Craig Ellis entered an order
finding plaintiff not disabled (Tr. at 56-64). This was the result of a prior application for
8
disability filed by plaintiff on June 25, 2007, in which she alleged that she became
disabled on June 14, 2006, due to back pain, high cholesterol and hypertension.
Plaintiff had testified at a hearing on February 19, 2009, and submitted medical records
from Sharon Carmignani, M.D., plaintiff’s treating physician. Judge Ellis found that
plaintiff suffered from degenerative disease of the lumbar spine, which was a severe
impairment. Plaintiff testified that she saw Dr. Carmignani for an examination in order
to get Medicaid, which she did, and then saw the doctor three more times after that.
She was sent to an occupational medicine specialist for a post-hearing exam on March
26, 2009, and was observed to have no difficulty dressing and undressing without
assistance, getting on and off the exam table without assistance, or sitting for the
duration of the history and a portion of the physical exam without signs of pain including
no shifting her position while sitting. She rated her pain an 8 out of 10 on that day, but
the doctor observed plaintiff to be in no distress. Her strength was normal, and the
doctor observed that plaintiff could sit, stand, walk, lift, carry, handle objects, and travel
without difficulty. The diagnosis included “chronic low back pain and subjective greater
than objective findings.” The ALJ remarked that there were “a number [of]
inconsistencies noted during the examination which seemed to indicate that the
claimant was exaggerating her pain.” Plaintiff made no allegation of disabling mental
symptoms in this prior case which was denied very shortly before she filed the instant
application for disability benefits.
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B.
SUMMARY OF MEDICAL RECORDS
The records prior to August 4, 2009, were submitted in plaintiff’s previous
disability case.
On January 19, 2009, plaintiff saw Sharon Carmignani, M.D., for hypertension,
hyperlipidemia, and pain in her back and hip (Tr. at 231-233). Her blood pressure at an
outside facility was up so she came in for treatment. “Low back pain is chronic, she has
had x-rays which have shown mild DJD. . . . Pain in right hip is chronic, x-ray by Dr.
Cravens was by his records unremarkable. Pt states pain is worse with walking, both
hip and back bother [her].” As far as hyperlipidemia, “Reasons for screening include
tobacco use. Additional information: Severely hyperlipidemic, did not return for
treatment although asked to do so.” On exam plaintiff’s extremities were normal. She
was in no distress. There was no mention of any examination of her back; no
psychological symptoms were observed.
On June 1, 2009, plaintiff saw Dr. Carmignani for a follow up on her high blood
pressure, high cholesterol, and back pain (Tr. at 230). “She is not taking any of her
medications at this point. She states that her Medicaid was cancelled. . . . She does
continue to smoke. She smokes a pack of cigarettes a day. . . . She states that her
back pain prohibits her from working; however, x-rays show very mild degenerative
arthritis.” Review of symptoms was otherwise negative. Plaintiff did not report any
psychological symptoms. She was observed to be in no distress. “With
encouragement she can move around the room without difficulty. . . . Gait and station
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were normal.” Dr. Carmignani prescribed Lisinopril for hypertension and noted that it
should be affordable to plaintiff.
On July 1, 2009, plaintiff had a well-woman exam with Dr. Carmignani (Tr. at
226-229). Her chronic problems consisted of unspecified essential hypertension, other
and unspecified hyperlipidemia, unspecified backache. Plaintiff reported smoking a half
a pack of cigarettes per day for the past 28 years. The record states, “Negative for
psychiatric symptoms.”
August 5, 2009, is the first day of the relevant period in this case, as it is the day
after the ALJ denied plaintiff’s previous application for disability benefits.
On September 28, 2009, plaintiff saw Dr. Carmignani (Tr. at 225). Plaintiff
reported that she had been dizzy and nauseated for the last three months. She said
she fell three times in August and believes this is due to being weak, not dizzy. Plaintiff
was on no medications. She had not started the cholesterol medication that she
received in July. “She states that after she fell she hurt her knee. She has difficulty
putting weigh on it. She states that that is her good leg. She also complains of hurting
all over. She states she lies in bed all of the time. She does walk with a cane today and
limps favoring her left leg. She did not go and have this x-rayed. She has not attempted
any exercises of her legs. She was seen in July. She had a well woman exam at that
time. Previous to that she was seen in June and at that time I attempted to treat her for
her hyperlipidemia. She still no longer has her Medicaid. She has chronic back pain.
She is not on any blood pressure medications”. Plaintiff was able to get on and off the
exam table albeit slowly. She “has resistance to range of motion when I try to
11
straighten the knee. There may be a slight amount of swelling.” Dr. Carmignani wrote,
“If she truly is lying in bed all of the time she is getting weaker and that will contribute to
this. I have advised that she needs an x-ray of the left knee. We cannot be sure that it
is not broken. She hesitates and states that she does not really believe that it is
necessary, but she does take the paper. She is handing me papers for disability rating
at this time.” Plaintiff was told to get an x-ray of her knee and to “do more walking” after
she got the x-ray.
That same day plaintiff had x-rays of her left knee due to complains of left knee
pain and swelling from a fall (Tr. at 220, 234). Christopher Bauman, M.D., the
interpreting radiologist, noted early degenerative changes and “a moderate knee joint
effusion.”1 Plaintiff also had lab work done which showed, among other things, that her
liver enzymes were normal (Tr. at 235).
On October 12, 2009, plaintiff saw Dr. Carmignani for a follow up (Tr. at 224).
Plaintiff”s blood work showed severe hypothyroidism. “She has not started her thyroid
medication yet that I called in for her.” Plaintiff said her left knee was somewhat better,
the swelling was going down, but she was still having pain. Plaintiff also complained of
low back pain and right hip pain. “She looks better today, brighter with good eye
contact.” Plaintiff had bilateral sacroiliac pain with palpation and right greater
trochanteric bursitis pain with palpation. “She favors her left leg when walking at this
time and moves slowly because of her back.” Dr. Carmignani wrote, “I really have an
1
Effusion in the knee joint, also known as “water on the knee” is a general term for
excess fluid accumulation in or around the knee joint.
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inadequate database here. She has had x-rays in the past that have had mild
degenerative changes only; however, the ones that I see in her chart date from 2003.
She has no insurance and so we cannot obtain them at this time.” Plaintiff’s
hypertension was noted as inadequately controlled. Dr. Carmignani gave plaintiff a
steroid injection in her right trochanteric bursa. “I would like to get her back on
Medicaid at this time so that we can get some kind of workup and perhaps improve her
physical condition enough so that she can go back to work.”
On November 16, 2009, plaintiff saw Dr. Carmignani for a follow up on back
pain, hypothyroidism, “and with complaints of depression.” Plaintiff indicated that she
had had trouble with depression previously, had been on antidepressants which had
helped, and had been “in Arthur Center2 at least one time.” Plaintiff had not taken
anything for depression for “a long time”. She was feeling down and depressed,
reported tearful episodes, said she had not slept well for the last two years. “She has
only taken her Thyroid for the last week. She states that it was hard for her to get
enough courage to take it, but now she is, so it is too early to reassess for control at this
time.” Plaintiff’s hip was improved since her injection. Plaintiff continued to complain of
pain in her back and buttocks. She had no radiation of pain into her leg. “She does
walk with a cane.” Plaintiff said that her pain interfered with bending. Dr. Carmignani
noted that plaintiff appeared “slightly depressed.” Her blood pressure was 123/85 and
plaintiff had not been taking her hypertension medication. On exam plaintiff had no
tenderness in her sacroiliac joint, no tenderness in her right trochanteric bursa. Range
2
A community mental health center located in Mexico, Missouri.
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of motion in her back was “decreased secondary to back pain.” Dr. Carmignani
prescribed Celexa, an antidepressant. Plaintiff was told to continue using Tylenol for
her back pain. “She is offered an injection, which she categorically refuses.”
On January 11, 2010, plaintiff was seen by Mark Schmitz, M.S., for a
psychological examination in connection with her application for Medicaid (Tr. at 243247). Plaintiff had previously been on Medicaid but it was discontinued and she
reapplied. Plaintiff was interviewed for 60 minutes. She arrived 15 minutes early for
her appointment and was cooperative. Plaintiff was subdued and soft-spoken, and
“appeared to be very weak and needed assistance rising from her chair.” Plaintiff
ambulated slowly and used a cane for assistance.
Plaintiff reported working at the Fulton State Hospital as a psychiatric aide for
approximately 13 years. Shortly after she left that job, she was admitted to the Arthur
Center as a result of suicidal behavior. She had been experiencing a lot of stress from
her job and her boyfriend, and she became depressed and took some pills. Her 12year-old daughter saw her do that, so she spit the pills out in the toilet. She was in the
hospital for about a week “until her boyfriend came to get her and she subsequently left
against medical advice.” Her boyfriend dumped her out on a gravel road, so she went
back to the Arthur Center for two more weeks. She was prescribed two different
antidepressants but never filled the prescriptions.
Plaintiff stated that about three months before this appointment with Mr. Schmitz,
she had been prescribed Celexa but she said it had not been having much effect on her
depression. “[H]er primary physical concern is degenerative disc disease in her back.
14
She reported that she has lost strength in her arms and legs, and she experiences
frequent numbness in her legs. She indicated that she has often fallen as a result of
this, and then needs assistance to get back up. She stated that she even needs help
getting up off the toilet. It was noted that at the end of the interview Ms. Bush struggled
considerably rising from her chair.”
Plaintiff had a problem with alcohol use about 12 to 14 years earlier and was
arrested for driving after having consumed alcohol. She was fined for a bad check
charge at some point in her past.
Plaintiff appeared to Mr. Schmitz to be extremely tired and/or weak. Her
responses to questions were logical and goal directed, eye contact was somewhat
minimal. She was well oriented. Her other tests were normal, although she was slow in
responding. Plaintiff reported that she had not eaten in the last seven days. She
described other psychological symptoms and reported that her antidepressant was not
helping but was making her more irritable and fatigued. Mr. Schmitz found that plaintiff
had a “mental disability which effectively prevents her from engaging in employment or
gainful activity for which she would otherwise be qualified. Her depression is such that
she would be unable to function effectively in a work-like setting. Further, it is this
examiner’s opinion that Ms. Bush’s mental disability is likely to endure for at least the
next 13 months or more.” He assessed major depressive disorder and a current GAF
of 40.3
3
A global assessment of functioning of 31 to 40 means some impairment in reality
testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or
major impairment in several areas, such as work or school, family relations, judgment,
15
On January 18, 2010, plaintiff saw Dr. Carmignani (Tr. at 269). “Susan comes in
today not doing well for the past month and a half. She states that her legs are weak,
that she cannot hold herself up. She is crawling on the floor to get around. Husband
had to pick her up twice this week off of the floor. She cannot eat. She cannot keep
anything down. She throws up if she tries to eat anything. She stopped her medication
2 weeks ago, which was her thyroid. She is significantly hypothyroid. She also stopped
the Celexa which I had prescribed about a month and a half ago. She has not been
better since she stopped the Celexa. She is complaining of abdominal pain and she
points to the epigastrium where that pain is. She also has had a cough for the last
month and a half. She is not producing any phlegm. She is a smoker. She states that
she is having a hard time swallowing and that her mouth is dry. She has not been
drinking a lot of fluids.” Plaintiff was very weak appearing and lethargic. Her blood
pressure was 129/88. “Weight is unobtainable as she cannot stand on the scales.” Her
lungs and heart were normal on exam. Epigastrium4 was markedly tender to palpation
thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to
work; child frequently beats up younger children, is defiant at home, and is failing at
school).
4
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and she had tenderness to the right lower quadrant of the abdomen. She was
assessed with “Nausea, vomiting, cough, dysphagia [a partial or complete impairment
of the ability to communicate resulting from brain injury], possible weight loss, and
possible dehydration, although her pulse does not reflect that.” She was also assessed
with hypothyroidism, not treated; depression, multiple arthraligias [joint pain], back pain,
and smoking. Dr. Carmignani told plaintiff’s husband to take her to the emergency
room, and she spoke with the emergency room attending physician about plaintiff’s
condition.
Plaintiff was admitted to the hospital through the emergency room (Tr. at 270325). Plaintiff reported that she was normal three to four years ago but then her back
started getting worse and “affected her daily activities and she is on disability.” For the
past six weeks she was not able to pull herself up and she attributed that to both the
weakness and the imbalance she had in her legs. Plaintiff reported having fallen three
times in the last six weeks. Plaintiff reported a recent inability to eat or drink because of
a gagging sensation. Plaintiff rated her back pain an 8 to 9 out of 10, although it was
noted that she was not on any pain medication and was “comfortable at present” so no
pain medication was offered due to her having suspected gastritis.5 She reported
having vomited a brown colored fluid which was “acidic” over the past two weeks. She
said she has panic attacks and palpitations during heightened anxiety. She was
5
“Gastritis describes a group of conditions with one thing in common: inflammation of
the lining of the stomach. The inflammation of gastritis is often the result of infection
with the same bacterium that causes most stomach ulcers. However, other factors -such as injury, regular use of certain pain relievers or drinking too much alcohol -- also
can contribute to gastritis.” http://www.mayoclinic.com/health/gastritis/DS00488
17
observed to be in no acute distress.
Plaintiff reported smoking 1 1/2 packs of cigarettes a day for almost 30 years
and her fingers were observed to be nicotine-stained. “Alcoholic, and trying to cut down
on it.” Plaintiff reported that she had been able to abstain from alcohol for almost two
months. On admission to the hospital, it was stated that she had possible gastritis
secondary to alcoholism.
An exam of her back revealed no abnormalities in her cervical, thoracic or
lumbar spine. Her psychiatric exam was normal. An EKG was normal. X-rays of her
heart and lungs were normal. A CT of her abdomen showed possible hepatitis and
pancreatitis. A CT scan of her head was normal. A CT scan of her spine was done
and showed only mild lumbar spine degenerative changes. X-rays of the spine
revealed only mild L4-5 intervertebral disc space narrowing, essentially unchanged.
Her lumbar discs and vertebral bodies were well maintained. She had mild lumbar
facet hypertrophy and minimal to mild lumbar anterior osteophytosis essentially
unchanged. Her liver enzymes were markedly elevated. Treatment was started but
plaintiff did not improve significantly. A cardiology consult was called and a 2D echo
was done which showed severely depressed left and right ventricular function. She was
transferred to the cardiac care unit.
While plaintiff was being evaluated for possible hypothyroidism-induced
cardiomyopathy,6 which is rare, plaintiff’s heart rate dropped and she died on January
6
Cardiomyopathy is a disease that weakens and enlarges your heart muscle. There
are three main types of cardiomyopathy -- dilated, hypertrophic and restrictive.
Cardiomyopathy makes it harder for your heart to pump blood and deliver it to the rest
18
20, 2010. The Final Report includes the following:
[T]he patient is a 48 year old white female with HTN [hypertension], hypothyroidism, long smoking and alcohol history admitted 1/18 with abdominal pain,
back pain, and diffuse weakness. She has not been compliant with HTN meds
or levothyroxine. She was noticed to have an altered mental status for which CT
scan was done - unremarkable and elevated liver function tests and TSH [thyroid
stimulating hormone] . . . . U/S [ultrasound] showed that she has enlarged liver
and also multiple hypoechoic areas [abnormal areas which can be seen on an
ultrasound] on the liver. . . . Patient was seen by me in the CICU [cardiac
intensive care unit] and she was alert, oriented and the Vitals were stable with
SBP 120/80 and she was just complaining of generalized weakness.
Plaintiff’s blood pressure dropped to 60/40 but she was still fully oriented. The
blood pressure cuff was moved to her leg and she started getting agitated. An
anesthesiologist and the cardiologist were called in due to the anticipation that plaintiff
would need to be intubated.7 Plaintiff’s heart rate dropped, she was intubated, “code
blue” resuscitative efforts were maintained for 18 minutes after which time she was
pronounced dead. The cause of death was determined to be severe acidosis from the
liver failure which compromised her cardiac function.
On February 4, 2010, Deborah Doxsee, Ph.D., completed a Psychiatric Review
Technique finding that plaintiff’s mental impairment was not severe (Tr. at 248-258).
She found that plaintiff had mild restriction of activities of daily living; mild difficulties in
maintaining social functioning; mild difficulties in maintaining concentration, persistence,
or pace; and had no repeated episodes of decompensation. In support of her findings,
Dr. Doxsee noted that plaintiff did not have any unusual anxiety or evidence of
of your body. Cardiomyopathy can lead to heart failure.
7
Endotracheal intubation is a medical procedure in which a tube is placed into the
windpipe (trachea), through the mouth or the nose.
19
depression on July 1, 2009. On exam in November 2009, plaintiff was started on
Celexa and reported trouble with depression previously even though there was nothing
in her medical records about depression. When she reported depression, her treating
physician noted that she only appeared slightly depressed. The record reflects an
observation by an interviewer that plaintiff teared up at times and appeared
despondent. Dr. Doxsee found that the record supported the presence of a medicallydeterminable mental impairment but that it was not severe.
On August 5, 2010, Dr. Carmignani wrote a letter to whom it may concern (Tr. at
267).
I was asked to fill out an evaluation for her in regards to her ability to work in
March 2009. Her reason for not working at that time had been chronic back
pain. X-rays at that time revealed minimal degenerative arthritis of the back and
in filling out the evaluation in terms of what her abilities were, I filled out the form
such that she would be able to function in a sedentary job. Since then, however,
it became clearer that Susan was very dysfunctional in terms of her ability to
respond normally to medical treatment as well as her emotional state. She was
found to be profoundly hypothyroid and was started on thyroid replacement;
however, she did not take this medication. She also was profoundly depressed.
She became weaker and weaker and unable to basically participate in her care
or to participate in the activities of daily living. She did see Dr. Mark Schmitz [I
note that Mr. Schmitz is not a doctor] in January of 2010 who diagnosed her with
major depression, a diagnosis with which I agree completely. I had previously
attempted to start her on antidepressants. Again, she was totally unable to
participate in her medical care and did not take the antidepressants or the
thyroid medication. I see this not as manipulation but rather as a sign of her
severe depression. She ultimately presented with severe weakness, nausea,
vomiting and was admitted from the clinic to the hospital for these symptoms.
She did have a cardiopulmonary arrest 2 days after her admission to the
hospital. She had liver failure, severe hypothyroidism, hypotension and
cardiomyopathy at the time of her death. The etiology of her liver failure is not
clear to me at this time . . . . She was certainly unable to work during that period
of time from summer of 2009 on into the time that she presented to the hospital
and given her mental problems, I believe that she was not able to work before
that as well. I think that most of her incapacity relates to her severe depression.
20
When I filled out the Social Security form, I was only asked to answer questions
in regard to her lumbar spine and believe that although she was capable of
sedentary work from an orthopaedic standpoint, that her mental illness in the
form of severe affective disorder prohibited her ability to pursue gainful
employment.
C.
SUMMARY OF TESTIMONY
During the January 28, 2011, hearing, plaintiff’s husband, Carl Bush, testified;
and Clarence Hulett, a vocational expert, testified at the request of the ALJ.
1.
Testimony of Carl Bush.
Carl Bush and plaintiff were married in September or October of 1985 (Tr. at 32).
Plaintiff had two children from a previous relationship (Tr. at 32). For the past six
months, Mr. Bush has had two roommates who used to be his neighbors but now pay
him rent to live in his home (Tr. at 33). He could not remember his address (Tr. at 3132).
Plaintiff had a 10th grade education and did not get a GED (Tr. at 48). Her
biggest medical problem was her pain (Tr. at 33). She had a lot of pain, she could not
walk very well without assistance, she needed help getting up and down, and she cried
a lot (Tr. at 33). She had pain in her lower back that caused numbness in her legs and
arms (Tr. at 33). This was not caused by any accident; it started three or four years
before the hearing but during the past year it progressed to the point where she could
not walk (Tr. at 33-34). Her doctor said she had arthritis (Tr. at 34).
Plaintiff was also being treated for high blood pressure and depression (Tr. at
34). When asked if she was taking her hypertension medication regularly, Mr. Bush
said, “I thought she was on it regularly.” (Tr. at 34). Plaintiff had just been diagnosed
21
with severe depression in December 2009 (the month before her death) and was
started on medication (Tr. at 34). Her depression was caused by her inability to walk,
do dishes, do laundry and go grocery shopping (Tr. at 34, 35). The arthritis caused
numbness in her legs and she could not feel the ground she was walking on so she
tripped a lot (Tr. at 35). Mr. Bush refilled plaintiff’s medications, so he believes that
plaintiff was taking all of her medications regularly (Tr. at 35). Mr. Bush did not actually
see plaintiff take her medication:
Q.
Did anybody actually see her take it?
A.
No, sir. I worked in -- I’ve seen -- I’ve seen her -- she had a hard time
taking just aspirin or pills. She had to stick in down her throat and choke it
down, and I seen her do it myself.
Plaintiff did not see a psychiatrist -- her general practitioner prescribed
depression medication (Tr. at 36). When Mr. Bush was first dating plaintiff -- sometime
before 1985 -- she was in a place in Mexico, Missouri, for depression and stayed there
for 90 days (Tr. at 36-37). Plaintiff was not treated for any depression issues since she
got married in 1985 (Tr. at 37-38). Mr. Bush was asked how long they had been
married, and he said, “Eighteen years last year.” (Tr. at 38). However, this was in
January 2011; and if they were married in September or October 1985, they would have
been married approximately 25 years “last year.”
Up until the last five years, plaintiff got along with everybody (Tr. at 38). But after
she could no longer work, she fell apart and did not talk to anyone and would not leave
the house (Tr. at 38). Plaintiff previously worked as a plumber (Tr. at 38). She also
22
worked as a nurse’s aide and she worked at a Dollar General store as a stocker (Tr. at
38). She did that for six years and quit that job in 1995 (Tr. at 38). Mr. Bush testified
that the stocker job was her last job (Tr. at 39).
Q.
Well, it said she did plumbing after that.
A.
No, sir, she. No, she didn’t do any plumbing -- she hasn’t done any
plumbing in 10 years, 12 years.
Q.
Well, that’d put it at ‘99. You said ‘95.
A.
Well, I’m having a hard time with this.
Q.
All right, well, it said she worked as a stocker from 2000 to 2006. Does
that make any sense?
A.
No. Dollar General was her last job, and it was -- she filed this case after
she got diagnosed with arthritis, and she worked two years after she was
diagnosed, and then she just couldn’t do it anymore ‘cause of the pain.
Q.
Well, I mean, she’s got a decent earnings record all the way up through
2006.
A.
Yes, sir.
Q.
She was working up through 2006, sir.
A.
Well, that’s what I’m saying, you know, I -- I’m not real --
Q.
You just don’t remember, okay.
A.
Right.
(Tr. at 39-40).
23
Once plaintiff became depressed, she would not leave the house or even talk to
her kids on the phone (Tr. at 46). Three years before the hearing, it got to the point
where she would not go anywhere, and before that she went everywhere with Mr. Bush
(Tr. at 46). She was in too much pain and did not want to go anywhere (Tr. at 46). Mr.
Bush had to hep plaintiff in and out of the tub and help her put on her shoes (Tr. at 46).
She could not stand to take a shower, and she could not walk because she could not
feel her legs (Tr. at 46). She would not take a bath unless Mr. Bush was there because
she was afraid she would drown (Tr. at 46-47). She fell and could not get up in August
2009, and that is when she started using a cane (Tr. at 47). Mr. Bush put grab bars up
around their home to help her (Tr. at 47).
Plaintiff had just started taking thyroid medication in December 2009 (Tr. at 42).
Mr. Bush is not aware of any other conditions for which plaintiff was being treated (Tr. at
41).
Plaintiff was a smoker (Tr. at 42). She smoked about a half a pack of cigarettes
per day (Tr. at 42). Plaintiff would drink a six-pack of beer on the weekends, but she
did not drink hard liquor and did not use illegal drugs (Tr. at 43). Mr. Bush got a job
remodeling his landlord’s rental properties in town so that he could check on plaintiff
(Tr. at 43). She fell one time and was on the floor for two or three hours until he got
home so he got that job so he could stay close (Tr. at 43). Plaintiff was at home by
herself during the day though (Tr. at 43). When he was working down the street, Mr.
Bush would go home to check on her three or four times a day (Tr. at 43-44). Plaintiff
would either be sleeping or sitting on the couch (Tr. at 44). Plaintiff did not watch
24
television during the day, she just sat on the couch and would not get up unless Mr.
Bush helped her up (Tr. at 44). Mr. Bush did all the laundry, did the dishes, and did the
cleaning (Tr. at 44). In the last five years, plaintiff would not even leave the house
except to go to a doctor (Tr. at 44-45). Plaintiff was on Medicaid and their landlord took
plaintiff to her doctor appointments (Tr. at 45).
Plaintiff’s cause of death was that her liver caused her heart to fail (Tr. at 45).
2.
Vocational expert testimony.
Vocational expert Clarence Hulett testified at the request of the Administrative
Law Judge. The first hypothetical involved a person would could lift 20 pounds
occasionally and 10 pounds frequently, would need to alternate sitting and standing at
will, could walk for two hours per day; who would have an unlimited ability to push and
pull with her arms and had no trouble with gross and fine manipulation; who could only
occasionally push and pull with her lower extremities; who could occasionally climb
stairs; who could never climb ladders, ropes or scaffolds; who could never run; who
could occasionally bend, stoop, crouch, crawl, balance, twist or squat; who would need
limited exposure to heights, dangerous machinery, uneven surfaces and excessive
vibration; who could understand at least simple instructions, concentrate, perform
simple tasks, and respond and adapt to workplace changes and supervision but would
need limited public contact (Tr. at 48-49). Such a person could not perform any of
plaintiff’s past relevant work (Tr. at 49). The person could perform light unskilled jobs
such as electronics worker, DOT 726.687-010, with 210,000 such jobs in the nation and
200 locally; a small products assembler, DOT 739.687-030, with 205,000 such jobs in
25
the nation and 250 locally; or ticket seller, DOT 211.467-030, with 185,000 jobs in the
nation and 150 locally (Tr. at 50).
The second hypothetical was the same as the first except the person would need
to be standing for a total of two hours per day while exercising the sit/stand option, and
while standing the person would need to use a cane (Tr. at 50-51). The vocational
expert testified that those three jobs could be performed with a sit/stand option, but the
use of a cane “could affect the competitive nature of the job” (Tr. at 51).
V.
FINDINGS OF THE ALJ
Administrative Law Judge Gary Suttles entered his opinion on February 9, 2011
(Tr. at 15-24). Plaintiff’s last insured date was December 31, 2011 (Tr. at 15, 17).
Step one. Plaintiff did not engage in substantial gainful activity after November
1, 2005, her alleged onset date (Tr. at 17). Plaintiff worked after her alleged onset date
but her earnings did not rise to the level of substantial gainful activity (Tr. at 17).
Step two. Plaintiff suffered from the following severe impairments: lumbar
degenerative disc disease, hypertension, hypothyroidism, and major depressive
disorder (Tr. at 17). The ALJ noted that plaintiff had only “very mild” to “mild”
degenerative disc disease, she had “mild” hypertension with no associated symptoms,
she was non-compliant with her thyroid medication, and she was non-compliant with
her antidepressant medication (Tr. at 17-18).
Step three. Plaintiff’s severe impairments did not meet or equal a listed
impairment (Tr. at 18-20).
26
Step four. Plaintiff retained the residual functional capacity to lift 20 pounds
occasionally and 10 pounds frequently; walk for 2 hours per day; alternate sitting and
standing at will; had an unlimited ability to push, pull, and perform tasks requiring gross
and fine manipulation except that she could only occasionally push with her lower
extremities; she could never run or climb ladders, ropes, or scaffolds; she could have
only limited exposure to heights, dangerous machinery, uneven surfaces, and
excessive vibration; she could get along with others, understand simple instructions,
concentrate, perform simple tasks, respond and adapt to workplace changes and
supervision, but should have limited contact with the public (Tr. at 20). The ALJ found
that plaintiff’s husband’s testimony about her limitations was not credible as it was
contradicted by her daily activities, her non-compliance with treatment, her lack of
medical treatment, her use of only over-the-counter pain medications and refusal to try
an epidural steroid injection. With this residual functional capacity, plaintiff was unable
to perform her past relevant work (Tr. at 22).
Step five. Plaintiff was capable of working as an electronics worker, a small
products assembler, or a ticker seller, all available in significant numbers (Tr. at 25).
Therefore, plaintiff was not disabled at any time from her alleged onset date until the
date of her death (Tr. at 24).
VI.
RESIDUAL FUNCTIONAL CAPACITY ASSESSMENT
Plaintiff argues that the ALJ erred in assessing plaintiff’s residual functional
capacity because her depression essentially crippled her causing her to be so weak
that she could not do anything physically and eventually leading to her heart failure due
27
to an inability to care for herself. Plaintiff specifically challenges the ALJ’s failure to rely
on any one medical opinion. Plaintiff mistakenly refers to Mark Schmitz as a doctor -he is not a doctor.
The opinions dealing with plaintiff’s mental health are (1) the opinion of Mark
Schmitz who is not a doctor but rather has a masters degree, (2) the opinion of Dr.
Doxsee who did not examine plaintiff, and (3) the opinion of plaintiff’s treating physician,
Dr. Carmignani, which was rendered seven months after plaintiff died. In assessing
plaintiff’s mental residual functional capacity, the ALJ explained his reasoning as
follows:
Additionally, the claimant had a history of depression. ln July 2009, the claimant
was alert and oriented with no psychiatric symptoms and no evidence of
depression. In contrast, she complained of depression with sleep disturbance in
November 2009. After noting that she appeared “slightly” depressed, her
primary care physician prescribed Celexa. However, she was subsequently noncompliant with her medication. Accordingly, by January 2010, she endorsed
additional depressive symptoms of anhedonia and appetite disturbance. She
was then diagnosed with MDD and assigned a global assessment of functioning
(GAF) score of 40. A GAF score of 40 indicates “some impairment in reality
testing or communication” or “major impairment in several areas, such as work or
school, family relations, judgment, thinking, or mood” (American Psychiatric
Ass’n, Diagnostic and Statistical Manual or Mental Disorders (4th ed. 1994)). In
weighing the score, the undersigned notes that, unless specifically indicated for
the past year, a GAF score is for the current level of functioning and such scores
can result in major variations. See Diagnostic and Statistical Manual of Mental
Disorders, at p. 33 (4th ed. Text Revision 2000). Finally, the undersigned notes
that the GAF scale has no direct correlation to the severity requirements in the
mental disorder listings. See 65 Fed. Reg. 50746, 50764-65 (August 21, 2000).
*****
Through the date of death, the claimant’s mental impairment did not meet or
medically equal the criteria of listing 12.04. In making this finding, the
undersigned has considered whether the “paragraph B” criteria were satisfied.
To satisfy the “'paragraph B” criteria, the mental impairment must result in at
28
least two of the following: marked restriction of activities of daily living; marked
difficulties in maintaining social functioning; marked difficulties in maintaining
concentration, persistence, or pace; or repeated episodes of decompensation,
each of extended duration. A marked limitation means more than moderate but
less than extreme. Repeated episodes of decompensation, each of extended
duration, means three episodes within 1 year, or an average of once every 4
months, each lasting for at least 2 weeks.
In activities of daily living, the claimant had mild restriction. The claimant’s
surviving spouse testified that she did not perform any chores, and spent most of
her time sleeping or sitting on the couch (hearing record). He also testified that
he checked on the claimant three to four times during his workday. However, the
claimant and her surviving spouse completed function reports approximately one
month prior to her death, wherein they admitted that she could perform some
activities of daily living.
In social functioning, the claimant had moderate difficulties. As testified by the
claimant’s surviving spouse, she did not talk to anyone and Ieft the house only to
go to the doctor. In contrast, just prior to her death, the claimant reported that
she had no problems getting along with family, friends, neighbors, or authority
figures.
With regard to concentration, persistence or pace, the claimant had moderate
difficulties. Though the claimant reported that she had difficulty with memory,
completing tasks, and concentrating, she admitted that she was “ok” at
understanding and following written and spoken instructions.
As for episodes of decompensation, the claimant experienced no episodes of
decompensation of extended duration. Indeed, there is no medical evidence of
record confirming any episodes of decompensation of extended duration from
the alleged onset date through the date of death.
Because the claimant’s mental impairment did not cause at least two “marked”
limitations or one “marked” limitation and “repeated” episodes of
decompensation, each of extended duration, the “paragraph B” criteria were not
satisfied.
The undersigned has also considered whether the “paragraph C” criteria were
satisfied. In this case, the evidence fails to establish the presence of the
“paragraph C” criteria. As noted above, the claimant did not experience any
episodes of decompensation of extended duration from the alleged onset date
through the date of death. Also, the evidence does not indicate that a “minimal
increase in mental demands” or a “change in the environment” would have
29
caused her to decompensate. In addition, there is no indication that, through the
date of death, the claimant was unable to function outside of a highly supportive
living arrangement.
*****
Also remarkable, this case was previously denied by Administrative Law Judge
Craig Ellis on August 4, 2009, and affirmed by the Appeals Council on
September 17, 2010, only four months prior to the hearing. The undersigned
notes that no new or material evidence was submitted that would change the
prior decision and prompt re-opening, or support the award of benefits on the
current application.
*****
Turning to the mental opinion evidence, the undersigned has considered the
opinion of Mark Schmitz, a licensed psychologist. After interviewing the claimant
in January 2010, he opined as follows: “Ms. Bush has a mental disability which
effectively prevents her from engaging in employment or gainful activity for which
she would otherwise be qualified. Her depression is such that she would be
unable to function effectively in a work-like setting. [Her] mental disability is likely
to endure for at least the next 13 months or more.” The undersigned affords little
weight to this opinion because it is inconsistent with the other objective medical
evidence of record. Likewise, per 404.1527(e) and 416.927(e), the issue of
whether a claimant is unable to work is reserved to the Commissioner.
The undersigned has also considered the opinion of Deborah Doxsee, Ph.D., a
State agency psychological consultant. In February 2010, Dr. Doxsee opined
that the claimant’s depression was a non-severe impairment. The undersigned
affords little weight to Dr. Doxsee’s opinion because, as shown above in finding
number three, there was sufficient evidence to classify the claimant’s depression
as severe.
In addition, the undersigned has considered the opinion of Sharon Carmignani,
M.D., the claimant’s treating physician. In August 2010, Dr. Carmignani opined
as follows: “She was certainly unable to work . . . from summer of 2009 on into
the time that she presented to the hospital and given her mental problems, I
believe that she was not able to work before that as well . . . Although she was
capable of sedentary work from an orthopedic standpoint, . . . her mental illness .
. . prohibited her ability to pursue gainful employment.” The undersigned affords
little weight to this opinion because it is inconsistent with the other objective
medical evidence of record that indicated the claimant did not seek or receive
any regular mental health treatment nor was she taking any medication for her
30
condition. Furthermore, Dr. Carmignani is not a mental health professional nor
did she treat the claimant’s mental condition. I find her opinion speculative in
nature and [it] lacks credibility. Likewise, per 20 CFR 404. 1527(e) and
416.927(c), the issue of whether a claimant is unable to work is reserved to the
Commissioner.
In sum, taking into account the record as a whole, including the aforementioned
Polaski factors, the undersigned concludes that, through the date of death, the
claimant had the capacity to perform light work with the limitations set out in the
residual functional capacity above.
(Tr. at 18-22).
Opinion of Mr. Schmitz
On August 9, 2006, the Social Security Administration issued Social Security
Ruling (SSR) 06-3p, 71 Fed. Reg. 45,593 (Aug. 9, 2006). The ruling clarified how it
considers opinions from sources who are not what the agency terms “acceptable
medical sources.” SSA separates information sources into two main groups:
“acceptable medical sources” and “other sources.” It then divides “other sources” into
two groups: medical sources and non-medical sources. 20 C.F.R. §§ 404.1502,
416.902 (2007). Acceptable medical sources include licensed physicians (medical or
osteopathic doctors) and licensed or certified psychologists. 20 C.F.R. § § 404.1513(a),
416.913(a) (2007). According to Social Security regulations, there are three major
distinctions between acceptable medical sources and the others:
1.
Only acceptable medical sources can provide evidence to establish the
existence of a medically determinable impairment. Id.
2.
Only acceptable medical sources can provide medical opinions. 20
C.F.R. §§ 404.1527(a)(2), 416.927(a)(2) (2007).
3.
Only acceptable medical sources can be considered treating sources. 20
C.F.R. §§ 404.1527(d) and 416.927(d) (2007).
31
In the category of “other sources,” again, divided into two subgroups, “medical
sources” include nurse practitioners, physician assistants, licensed clinical social
workers, naturopaths, chiropractors, audiologists, and therapists. “Non-medical
sources” include school teachers and counselors, public and private social welfare
agency personnel, rehabilitation counselors, spouses, parents and other caregivers,
siblings, other relatives, friends, neighbors, clergy, and employers. 20 C.F.R. §§
404.1513(d), 416.913(d) (2007).
“Information from these ‘other sources’ cannot establish the existence of a
medically determinable impairment,” according to SSR 06-3p. Sloan v. Astrue, 499
F.3d 883, 888 (8th Cir. 2007). “Instead, there must be evidence from an ‘acceptable
medical source’ for this purpose. However, information from such ‘other sources’ may
be based on special knowledge of the individual and may provide insight into the
severity of the impairment(s) and how it affects the individual’s ability to function.” Id.
quoting SSR 06-3p.
Mr. Schmitz is not a doctor; however, he is a licensed psychologist. A licensed
psychologist with only a master’s degree has been held to be an acceptable medical
source for purposes of determining whether a claimant has a severe impairment.
Bronson v. Astrue, 530 F. Supp.2d 1172 (D. Kan. 2008).
Mr. Schmitz interviewed plaintiff for 60 minutes in connection with her Medicaid
application. He did not treat her. The few tests he performed had essentially normal
results except that she was very slow in participating. She appeared to be very weak
and soft spoken. His other observations were normal. The only functional ability he
32
discussed was her ability to “function effectively in a work-like setting.” He did not
indicate the level of her impairment on this one functional ability. Instead, he provided
his opinion that plaintiff was disabled from all employment for at least 13 months.
A one-time evaluation by a nontreating psychologist is of little significance by
itself. Loving v. Department of Health and Human Services, 16 F.3d 967 (8th Cir.
1994), citing Browning v. Sullivan, 958 F.2d 817, 823 (8th Cir. 1992). Mr. Schmitz did
not review any of plaintiff’s medical records. He merely assumed that her very slow
participation and her extreme weakness were caused by depression. Because plaintiff
died a couple weeks later of liver failure, it is possible that her lethargy and weakness
were caused by liver failure and not depression.8 Additionally, the first time plaintiff
ever complained of depression was on November 16, 2009 -- less than two months
before Mr. Schmitz found that she was completely disabled due to depression -- and
her treating doctor noted only that plaintiff appeared “slightly depressed” at that time.
The ALJ properly discounted the opinion of Mr. Schmitz because his opinion (1)
is the result of nothing more than plaintiff’s allegations, her slow responses on
psychological exams, and his observation of her extreme weakness and lethargy during
8
The Mayo Clinic publishes the following about acute liver failure: “Signs and
symptoms of acute liver failure may include: A yellowing of your skin and eyeballs
(jaundice), pain in the upper right area of your abdomen, nausea, vomiting, a general
sense of not feeling well, difficulty concentrating, disorientation or confusion,
sleepiness. When to see a doctor: Acute liver failure can develop quickly in an
otherwise healthy person, and it is life-threatening. If you or someone you know
suddenly develops a yellowing of the eyes or skin, tenderness in the upper abdomen or
any unusual changes in mental state, personality or behavior, seek medical attention
right away.”
http://www.mayoclinic.com/health/liver-failure/DS00961/DSECTION=symptoms
33
a 60-minute interview, (2) it is inconsistent with her treatment records showing no
complaints of depression until less than two months earlier when her treating doctor
observed only slight depression, (3) plaintiff’s symptoms are consistent not only with
severe depression, which is unsupported by medical records, but also with acute liver
failure, which is supported by the medical records, (4) his opinion did not discuss
plaintiff’s functional limitations, and (5) his opinion consisted of a conclusory statement
that plaintiff cannot work due to depression and that is a judgment that is reserved for
the Commissioner. McDade v. Astrue, 720 F.3d 994, 1000 (8th Cir. 2013); Ellis v.
Barnhart, 392 F.3d 988, 994 (8th Cir. 2005) (“A medical source opinion that an
applicant is ‘disabled’ or ‘unable to work,’ however, involves an issue reserved for the
Commissioner and therefore is not the type of ‘medical opinion’ to which the
Commissioner gives controlling weight.”).
Opinion of Dr. Doxsee
The ALJ also discredited the opinion of non-examining psychologist Dr. Deborah
Doxsee because she found that plaintiff’s impairment was not severe, and the ALJ
found that plaintiff’s mental impairment, although not disabling, was severe. This was
based on plaintiff’s allegations of problems with memory and her social isolation, not on
any treatment records, and therefore the ALJ gave plaintiff the benefit of the doubt in
finding that her mental impairment was severe. Plaintiff does not argue that the ALJ
should have relied on the opinion of Dr. Doxsee.
34
Opinion of Dr. Carmignani
Sharon Carmignani, M.D., was plaintiff’s treating physician. On August 5, 2010 - seven and a half months after plaintiff’s death -- Dr. Carmignani wrote a letter to whom
it may concern finding that plaintiff was “certainly unable to work during the period of
time from summer of 2009 on into the time that she presented to the hospital and given
her mental problems, I believe that she was not able to work before that as well.” Dr.
Carmignani stated that plaintiff was not disabled physically, only because of depression.
A treating physician’s opinion is granted controlling weight when the opinion is
not inconsistent with other substantial evidence in the record and the opinion is well
supported by medically acceptable clinical and laboratory diagnostic techniques. Reed
v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005); Ellis v. Barnhart, 392 F.3d 988, 998 (8th
Cir. 2005). If the ALJ fails to give controlling weight to the opinion of the treating
physician, then the ALJ must consider several factors to determine how much weight to
give the opinion including length of the treatment relationship and the frequency of
examination; nature and extent of the treatment relationship; supportability, particularly
by medical signs and laboratory findings; consistency with the record as a whole; and
other factors, such as the amount of understanding of Social Security disability
programs and their evidentiary requirements or the extent to which an acceptable
medical source is familiar with the other information in the case record. 20 C.F.R. §§
404.1527, 416.927.
The ALJ gave no weight to Dr. Carmignani’s opinion because, “it is inconsistent
with the other objective medical evidence of record that indicated the claimant did not
35
seek or receive any regular mental health treatment nor was she taking any medication
for her condition. Furthermore, Dr. Carmignani is not a mental health professional nor
did she treat the claimant’s mental condition. I find her opinion speculative in nature
and [it] lacks credibility. Likewise, per 20 CFR 404.1527(e) and 416.927(c), the issue of
whether a claimant is unable to work is reserved to the Commissioner.”
Plaintiff saw Dr. Carmignani fairly regularly for at least a year. Dr. Carmignani
did not treat plaintiff for any mental health condition other than to prescribe an antidepressant after having observed that plaintiff was “slightly depressed” and plaintiff
complained of feeling depressed. Plaintiff did not take the antidepressant. Dr.
Carmignani did not perform any mental tests, and her opinion that plaintiff’s depression
was of disabling severity is inconsistent with all of plaintiff’s treatment records and her
hospital records. The ALJ properly discredited this opinion.
Plaintiff also challenges the ALJ’s reliance on the fact that in her previous
application for disability, plaintiff had no severe mental impairment, and this opinion was
rendered just months before her death.
The ALJ in this case expressly stated that he was not reopening plaintiff’s prior
applications, and the Commissioner’s prior decisions are res judicata and not subject to
judicial review. Boock v. Shalala, 48 F.3d 348, 351 (8th Cir. 1995); Brown v. Sullivan,
932 F.2d 1243, 1245-1246 (8th Cir. 1991), citing Califano v. Sanders, 430 U.S. 99,
107-109 (1977). Plaintiff has presented no Constitutional claim in this case, and the
ALJ’s refusal to reopen plaintiff’s prior applications is not reviewable. Id. Therefore, the
36
relevant time period for consideration of plaintiff’s claims is from August 5, 2009,
through January 20, 2010.
The ALJ was required to base his decision on all of the relevant and credible
evidence of record, including the plaintiff’s daily activities, lay evidence, and frequency
and duration of medical treatment. SSR 96-8p; 20 C.F.R. §§ 404.1545 and 416.945;
Eicheberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). Contrary to plaintiff’s
argument, the ALJ was not required to rely entirely on a particular physician’s opinion or
choose between any of the opinions in the record. Martise v. Astrue, 641 F.3d 909, 927
(8th Cir. 2011). In fact the ALJ is not required to base his determination solely on
medical reports or sources. McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000). The
ALJ properly considered plaintiff’s medical care (and lack thereof), her treatment, her
allegations in her administrative paperwork, her husband’s testimony, and all of the
medical and lay opinions and observations in the record in determining her residual
functional capacity. The substantial evidence in the record as a whole supports his
decision.
VIII.
CONCLUSIONS
Based on all of the above, I find that the substantial evidence in the record as a
whole supports the ALJ’s finding that plaintiff was not disabled. Therefore, it is
ORDERED that plaintiff’s motion for summary judgment is denied. It is further
37
ORDERED that the decision of the Commissioner is affirmed.
ROBERT E. LARSEN
United States Magistrate Judge
Kansas City, Missouri
September 13, 2013
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