Olson v. Astrue
Filing
16
OPINION. Signed by Judge James P. Jones on 1/20/12. (sc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
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SONYA K. OLSON,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
Case No. 2:11CV00007
OPINION
By: James P. Jones
United States District Judge
Pamela A. Counts, Lee & Phipps, PC, Wise, Virginia for Plaintiff; Eric P.
Kressman, Regional Chief Counsel, Region III, Lori Karimoto, Assistant Regional
Counsel, Office of the General Counsel, Social Security Administration, Rafael
Melendez, Special Assistant United States Attorney, Philadelphia, Pennsylvania,
for Defendant.
In this social security case, I affirm the final decision of the Commissioner.
I
Plaintiff Sonya K. Olson filed this claim challenging the final decision of the
Commissioner of Social Security (the “Commissioner”) denying her claim for
disability insurance benefits (“DIB”) pursuant to Title II of the Social Security Act
(the “Act”). 42 U.S.C.A. §§ 401-433 (West 2011). Jurisdiction of this court exists
pursuant to 42 U.S.C.A. § 405(g) (West 2011).
Olson filed an application for benefits on July 25, 2007. The claim was
denied initially on October 16, 2007, and upon reconsideration on February 19,
2008. A hearing was held before an administrative law judge (“ALJ”) on August
20, 2009. At the hearing Olson, represented by counsel, and an independent
vocational expert testified. The ALJ denied her claim and that decision became
final when the Social Security Appeals Council denied her request for review.
Olson then filed her Complaint in this court, objecting to the Commissioner’s final
decision.
The parties have filed cross motions for summary judgment, which have
been briefed. The case is ripe for decision.
II
Olson was born on June 3, 1978, making her a younger individual under the
regulations. 20 C.F.R. § 404.1563(c) (2011). She completed two semesters of
college. She is married and lives with her husband and two young children. Her
past relevant work was in retail where she worked as a department head associate,
a retail sales person, a manager of retail and a mystery shopper.
She last
performed substantial gainful activity in November 2003. She last met the insured
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status requirements on December 31, 2008. She claims she is disabled because of
a pituitary gland tumor, migraine headaches, leg pain, and depression.
Olson’s problems first began after the birth of her oldest child. After she
stopped breastfeeding her son in August 2003, she began gaining weight and
continued to lactate, a symptom called galactorrhea.
Tests showed that her
prolactin level was increased. In November 2004, Olson underwent a CT scan of
her head, which showed that she had a pituitary gland adenoma (a tumor on her left
pituitary gland). She was given an MRI in December 2004 which showed a five to
six millimeter adenoma. Her treating physician, Neil Barry, M.D., referred her to
Lewis Blevins Jr., M.D., with Vanderbilt University for endocrinology treatment.
She was first seen by Dr. Blevins on December 29, 2004. He reviewed her MRI
and confirmed the existence of the pituitary microadenoma. He assessed it as
nonfunctioning at that time.
At her appointment in March 2006, Dr. Blevins noted that Olson had no
symptoms of cellular mass effect or of anterior pituitary hormone excess or
deficiency. At her October 2006 appointment, she underwent another MRI and Dr.
Blevins reviewed it and concluded that the tumor had not increased in size. He
noted that her pituitary functions were normal, although she was experiencing
fatigue, night sweats, hot flashes, irregular menses and continued lactation eight
months after giving birth to her second child. At her February 2007 appointment,
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Dr. Blevins described Olson’s adenoma as a “Microprolactinoma” and noted that
she was taking Dostinex. (R. at 381.) He also noted that her insomnia had
improved and felt that her prolactinoma was well controlled. Olson was referred
for an echocardiogram because cardiac valvular disease is a possible side effect of
the medication she was taking for her hyperporlactinemia.
The results were
normal.
In November 2006, Dr. Barry noted that Olson had “some depression” at her
check up appointment. (R. at 369.)
In March 2007, Olson presented to Pennington Family Health Center to
establish treatment with a primary care physician, Jill Couch, M.D.
She
complained of increasing headaches. Dr. Couch thought that the headaches were
possibly migraine related and referred Olson for another MRI. The results showed
“[n]o acute or any significant abnormalities are identified in the MRI of the brain
and pituitary gland.
Previously noted suggestion of microadenoma or
prolactinoma on the left side of the pituitary gland is less prominent at this time.”
(R. at 396.) At her September 2007 appointment, Olson’s physical exam was
unremarkable. Dr. Couch decided to put her on Topamax as well as Imitrex for the
headaches. She also encouraged Olson to exercise and noted that she felt Olson
might be “slightly depressed.” (R. at 388.)
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In October 2007, Olson had another appointment with Dr. Couch. While she
reported that the headaches had improved a lot with the medication, she
complained of fatigue and weight gain. She had not started an exercise program.
She told Dr. Couch that she wanted to see another endocrinologist because Dr.
Blevins thought her weight gain was due to inactivity, not the adenoma. Her exam
was unremarkable and Dr. Couch again thought she was slightly depressed and
encouraged her to exercise.
In December 2007, Lisa S. Howard, O.D., provided updated opthamology
information on Olson and noted that the most recent visit was November 2007.
Olson’s best corrected visual acuity was 20/25 in each eye and she had some loss
relating to the lower lateral left quadrant of her visual field. His clinical findings
were indicative of optic nerve edema (i.e. a swollen optic nerve). Dr. Howard
referred Olson to William Curtis, M.D., who ordered an MRI of her brain and orbit
to rule out an enlarging pituitary, a pseudotumor, optic neuritis, or another possible
reason for the edema. The MRI showed that the pituitary adenoma was less
prominent and Olson was sent to Patrick Lavin, M.D., for a neuro-opthamology
evaluation. Dr. Lavin determined that the swelling of Olson’s left optic nerve was
most likely related to resolving pseudotumor cerebri. He did not believe that a
spinal tap was necessary.
Dr. Lavin’s progress notes indicated continued
improvement in the swelling of Olson’s optic nerve.
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In December 2008, Olson presented to Cherokee Health Systems, stating
that her attorney recommended that she receive an evaluation because she had
applied for disability. As reported by the behavioral health intake evaluation,
Olson’s appearance was normal, her attitude was cooperative, and her motor
activity was calm. Her speech was excessive and her affect was labile but her
mood was not depressed, anxious, hypomanic, or manic. Her thought content was
normal and thought process was circumstantial.
She was diagnosed with an
unspecified bipolar disorder and her global assessment of functioning was rated at
55 and she was recommended for individual therapy and psychiatric services.
Olson had her initial psychiatric evaluation in February 2009 and
complained of anxiety and depression.
She denied ever needing psychiatric
hospitalization. Her appearance was normal and she was cooperative. Her motor
activity was calm, her speech was normal, and her thought processes and thought
content were normal. Her affect was restricted. She was diagnosed with a bipolar
disorder not otherwise specified, rule out an organic affective disorder, and
hypochondriasis by history.
Her GAF was rated at 60.
She was prescribed
Topamax. Though she was scheduled for therapy and medication follow-ups at
four week intervals, Olson submitted no records relating to this treatment.
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In March 2009, Olson underwent a stress test. It showed no EKG evidence
of coronary insufficiency but she had a moderate impairment of her functional
aerobic capacity.
In April 2009, Olson presented to Thomas Robbins, M.D. She had no
complaints other than her concerns related to some recent visual disturbance. Her
physical exam was unremarkable and her bipolar disorder was stable. Dr. Robbins
continued Olson’s medication regimen and sent her to an opthamologist. The
opthamology evaluation revealed her visual fields were in “good shape.” (R. at
538.)
In October 2007, Olson’s filed was reviewed by Robert McGuffin, M.D., a
physician consultant with the state agency. McGuffin concluded that Olson’s
adenoma, migraines, and probable RLS did not prevent her from performing light
type work. He concluded that Olson’s statements regarding her symptoms and
their effects on her functioning were only partially credible. During the same
month, E. Hugh Tenison, Ph.D., a psychological consultant who worked with the
state agency, also reviewed Olson’s file. Dr. Tenison determined Olson had an
affective disorder that was not a severe impairment because it had caused no
restriction in her ADL, social functioning, concentration, persistence or pace.
Also, Olson’s condition had not caused an episode of decompensation.
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In February 2008, Donald Williams, M.D., a physician consultant who
worked with the state agency, reviewed Olson’s file. Dr. Williams determined that
Olson’s adenoma, migraines, probably RLS, and optic nerve edema did not
preclude her from performing light work. That same month, Howard S. Leizer,
Ph.D., a psychological consultant who worked with the state agency, also reviewed
Olson’s file. Dr. Leizer agreed with Dr. Tenison’s opinion.
Olson completed a Function Report – Adult questionnaire in August 2007.
She reported that she lived with her husband and two children and was the primary
caregiver for the children. Olson said she spent her day reading, preparing meals,
cleaning, doing laundry, grocery shopping, and surfing and shopping on the
internet. She paid bills, handled a savings account, and used a checkbook/money.
Her condition had not affected her ability to get along with others, complete tasks,
understand, and follow instruction.
A hearing on Olson’s application for benefits was held on August 20, 2009,
before Administrative Law Judge Richard L. Schwartz. Olson testified that she
disliked leaving the house and socializing, she still drove, and she usually did the
grocery shopping with her husband, and occasionally needed help caring for her
young children. The vocational expert testified that an individual with Olson’s
limitations who was able to perform light work would be able to perform her past
relevant work except for the mystery shopper. The ALJ issued a decision on
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October 5, 2009, and concluded that Olson had the severe impairments of a
pituitary gland tumor, migraine headaches, and optic nerve edema on the left eye.
He determined that none of these impairments met or equaled listing requirements
and that Olson had the residual functional capacity to perform light work.
Gross argues that the ALJ’s decision is not supported by substantial
evidence. For the reasons below, I disagree.
III
The plaintiff bears the burden of proving that she is under a disability.
Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). The standard for
disability is strict.
The plaintiff must show that her “physical or mental
impairment or impairments are of such severity that [she] is not only unable to do
[her] previous work but cannot, considering [her] age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy . . . .” 42 U.S.C.A. § 423(d)(2)(A).
In assessing DIB claims, the Commissioner applies a five-step sequential
evaluation process. The Commissioner considers whether the claimant: (1) has
worked during the alleged period of disability; (2) has a severe impairment; (3) has
a condition that meets or equals the severity of a listed impairment; (4) could
return to her past relevant work; and (5) if not, whether she could perform other
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work present in the national economy. See 20 C.F.R. § 404.1520(a)(4) (2011). If
it is determined at any point in the five-step analysis that the claimant is not
disabled, the inquiry immediately ceases. Id. The fourth and fifth steps of the
inquiry require an assessment of the claimant’s residual functional capacity, which
is then compared with the physical and mental demands of the claimant’s past
relevant work and of other work present in the national economy. Id.; Johnson v.
Barnhart, 434 F.3d 650, 653-54 (4th Cir. 2005).
In accordance with the Act, I must uphold the Commissioner’s findings if
substantial evidence supports them and the findings were reached through
application of the correct legal standard. Craig v. Chater, 76 F.3d 585, 589 (4th
Cir. 1996). Substantial evidence means “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales,
402 U.S. 389, 401 (1971) (quotation marks and citation omitted). Substantial
evidence is “more than a mere scintilla of evidence but may be somewhat less than
a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). It is the
role of the ALJ to resolve evidentiary conflicts, including inconsistencies in the
evidence. Seacrist v. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976). It is
not the role of this court to substitute its judgment for that of the Commissioner.
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
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Olson first argues that the ALJ erred in failing to address all of the evidence
in the record.
Specifically, Olson argues that the ALJ did not consider the
evidence of Dr. Barry’s treatment of her as reported in Exhibit 5F. An ALJ must
consider all the evidence and explain on the record the reasons for his findings,
including the reasons for rejecting relevant evidence in support of the claim. See
Stawls v. Califano, 596 F.2d 1209, 1213 (4th Cir. 1979). However, the ALJ is not
required to discuss or refer to every piece of evidence in the record so long as the
court can discern the basis of his decision. See Fargnoli v. Massanari, 247 F.3d
34, 42 (3d Cir. 2001).
As the defendant notes, although the ALJ did not
specifically mention Exhibit 5F in his decision, Dr. Barry’s records contained in
Exhibit 5F were duplicates of those contained in Exhibit 4F. There were only two
additional treatment notes in Exhibit 5F from December 2006 and January 2007
and those records addressed Olson’s treatment for cholelithiasis and pharyngitis.
Neither of these notes contained relevant probative evidence because these
conditions were not adversely impacting her ability to function. See Gordon v.
Schweiker, 725 F.2d 231, 235 (4th Cir. 1984); see also Johnson v. Comm’r of Soc.
Sec., 529 F.3d 198, 204 (3d Cir. 2008).
Olson argues that the ALJ did not consider Dr. Barry’s diagnoses of pituitary
adenoma, weight gain, fatigue and depression. Dr. Barry was Olson’s primary care
physician from 2004 to the beginning of 2007. The diagnoses in his notes are
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repeated throughout the medical records and do not add anything significant to the
other medical records. For example, Dr. Barry’s references to Olson’s pituitary
adenoma primarily track her treatment by Dr. Blevins, the doctor to whom Dr.
Barry referred her. As for his diagnoses of depression, Dr. Barry’s notes only state
“depression” and note that Olson “feels like she doesn’t want to get out.” (R. at
283.)
While it is true that the ALJ’s opinion does not mention Dr. Barry
specifically or explicitly review his notes, it is clear that the ALJ gave extensive
consideration to the effect of the pituitary adenoma, weight gain, fatigue and
depression on Olson and in doing so, considered the medical records from Dr.
Barry. (R. at 18.) The ALJ satisfactorily explained the basis of his decision and
his “duty of explanation is not intended to be a mandate for administrative
verbosity or pedantry. If a reviewing court can discern ‘what the ALJ did and why
he did it,’ the duty of explanation is satisfied.” Piney Mountain Coal Co. v. Mays,
176 F.3d 753, 762 n.10 (4th Cir. 1999) (citation omitted).
Olson’s second argument is that the ALJ’s conclusion that she did not suffer
from a severe mental impairment is contrary to substantial evidence in the record.
Specifically, Olson points to the diagnoses of depression by Drs. Barry and Couch
and her diagnosis and treatment for unspecified bipolar disorder at Cherokee
Health Systems. At step two of the five step process, the ALJ must determine
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whether a claimant has a medically determinable impairment that is severe. 20
C.F.R. § 404.1520(c) (2011). An impairment or combination of impairments is
severe under the regulations only if it significantly limits an individual’s ability to
perform basic work activities. If the evidence establishes only a slight abnormality
that would have no more than a minimal effect on the individual’s ability to work,
then it is not severe. 20 C.F.R. § 404.1521 (2011).
Drs. Barry and Couch’s diagnoses of depression and the diagnosis of
unspecified bipolar disorder at Cherokee Health Systems do not require a finding
of disability. See Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986). Olson’s
own testimony showed that she functioned in managing her family obligations,
including caring for her young children and she had not sought any treatment by
mental health professionals until the end of 2008. At her hearing, she testified that
she was not receiving any current treatment for her mental problems. Further, the
state agency psychologists agreed that Olson’s mental disorder was not a severe
impairment.
The ALJ was required to consider the option of these “highly
qualified” psychologists who are “experts” in the field of Social Security disability
evaluation. 20 C.F.R. § 404.1527(f)(2)(i) (2011). These opinions are consistent
with the record as a whole and particularly with the evidence of Olson’s treating
physicians, Drs. Barry and Couch.
Substantial evidence supported the ALJ’s
conclusion that Olson’s mental condition was not severe.
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IV
For the foregoing reasons, the plaintiff’s Motion for Summary Judgment will
be denied, and the defendant’s Motion for Summary Judgment will be granted. A
final judgment will be entered affirming the Commissioner’s final decision
denying benefits.
DATED: January 20, 2012
/s/ James P. Jones
United States District Judge
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