Opinion
CIVIL ACTION No. 02-2326-GTV
March 26, 2004
MEMORANDUM AND ORDER
Plaintiff Nodie Lindsey-Evans brings this action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3) and D. Kan. Rule 83.7, seeking judicial review of the decision of the Commissioner of Social Security ("Commissioner") to deny her applications for supplemental security income benefits under Title XVI of the Social Security Act. Plaintiff claims that she is disabled because she suffers from vision impairments and depression. She has a high school education and has taken some college classes. Her past work experience includes employment as a housekeeper, a fast-food worker, a telemarketer, a salad bar attendant, a greeter, and a switchboard operator.
This appeal focuses on the Commissioner's determination that Plaintiff's vision impairments and depression were not disabling. Plaintiff contends that the Commissioner improperly relied on the testimony of a non-examining expert, failed to properly assess her past relevant work, and failed to consider her non-exertional impairments. For the following reasons, the court affirms the Commissioner's decision.
I. Procedural Background
In July 1999, Plaintiff filed an application for supplemental security income benefits, claiming disability since January 1, 1996. The application was denied both initially and upon reconsideration. At Plaintiff's request, an administrative law judge ("ALJ") held a hearing on June 14, 2001. At that time, Plaintiff amended her alleged disability onset date to June 1, 1999. No decision resulted from that hearing and a supplementary hearing was held on December 6, 2001 before a second ALJ, at which Plaintiff and her counsel were present. On April 10, 2002, the second ALJ rendered a decision in which he determined that Plaintiff was not under a "disability" as defined by the Social Security Act. After the ALJ's unfavorable decision, Plaintiff requested review by the Appeals Council. The Appeals Council denied Plaintiff's request for review on June 7, 2002, rendering the ALJ's decision the final decision of the Commissioner.II. Standard of Review
The Commissioner's findings are binding on this court if supported by substantial evidence. 42 U.S.C. § 405(g); Dixon v. Heckler, 811 F.2d 506, 508 (10th Cir. 1987). The court's review is limited to determining whether the Commissioner's decision is supported by substantial evidence in the record and whether the Commissioner properly applied relevant legal standards. Marshall v. Chater, 75 F.3d 1421, 1425 (10th Cir. 1996) (citing Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994)). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Castellano, 26 F.3d at 1028 (citations and internal quotation marks omitted). The court may not reweigh the evidence or substitute its judgment for that of the ALJ or the Commissioner. Hamilton v. Sec'y of Health Human Servs., 961 F.2d 1495, 1500 (10th Cir. 1992).
III. The ALJ's Findings
1. Claimant has not engaged in substantial gainful activity since the alleged onset of disability.
2. Claimant has an impairment or a combination of impairments considered "severe" based on the requirements in the Regulations ( 20 C.F.R. § 416.920(b)).
3. These medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4.
4. The undersigned finds claimant's allegations regarding her limitations are not totally credible for the reasons set forth in the body of the decision.
5. The undersigned has carefully considered all of the medical opinions in the record regarding the severity of claimant's impairments ( 20 C.F.R. § 416.927).
6. Claimant has the following residual functional capacity: light work. Under part "A" of the listing of impairments, claimant suffers from an affective disorder. Under part "B" of the listings, she has mild restrictions in activities of daily living, mild difficulties in maintaining social functioning, mild difficulties in maintaining concentration, persistence or pace, and no episodes of decompensation. There is no evidence that she meets any of the criteria under part "C" of the listings.
7. Claimant's past relevant work as a fast food worker, salad bar attendant, greeter, and telephone solicitor did not require the performance of work-related activities precluded by her residual functional capacity. She can also perform other light work such as a small parts assembler, hand packager, and molding machine operator ( 20 C.F.R. § 416.965).
8. Claimant's medically determinable vision deficits and an affective disorder do not prevent claimant from performing her past relevant work
9. Claimant was not under a "disability" as defined in the Social Security Act, at any time through the date of the decision ( 20 C.F.R. § 416.920(e)).
IV. Discussion of Plaintiff's Claims
"The Secretary has established a five-step sequential evaluation process for determining whether a claimant is disabled." Williams v. Bowen 844 F.2d 748, 750 (10th Cir. 1988). "If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary." Id. Those five steps are as follows:(1) A person who is working is not disabled.
(2) A person who does not have an impairment or combination of impairments severe enough to limit the ability to do basic work activities is not disabled
(3) A person whose impairment meets or equals one of the impairments listed in the regulations is conclusively presumed to be disabled.
(4) A person who is able to perform work she has done in the past is not disabled.
(5) A person whose impairment precludes performance of past work is disabled unless the [Commissioner] demonstrates that the person can perform other work. Factors to be considered are age, education, past work experience, and residual functional capacity.Reyes v. Bowen. 845 F.2d 242, 243 (10th Cir. 1988) (citing 20 C.F.R. § 416.920(a)-(f)) (internal citations omitted).
Plaintiff alleges that the ALJ committed several errors at step four of his decision. Step four consists of three phases. "In the first phase, the ALJ must evaluate a claimant's physical and mental [residual functional capacity], and in the second phase, he must determine the physical and mental demands of the claimant's past relevant work."Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996) (citation omitted). "In the final phase, the ALJ determines whether the claimant has the ability to meet the job demands in phase two despite the mental and/or physical limitations found in phase one." Id. A "claimant bears the burden at step four of proving his inability to return to his particular former job and to his former occupation as that occupation is generally performed throughout the national economy."Andrade v. Sec'y of Health Human Servs., 985 F.2d 1045, 1051 (10th Cir. 1993). "However, in order to make the ultimate finding that a claimant is not disabled at step four, the ALJ is required by SSR 96-8p to make specific and detailed predicate findings" at each of the three phases. Winters v. Barnhart, No. 00-2419-DJW, 2002 WL 1286134, at *14 (D. Kan. June 5, 2002).
Claim 1: The ALJ Ignored the Opinions of Two Consulting Psychologists
Plaintiff first claims that the ALJ's mental Residual Functional Capacity ("RFC") determination is not based on substantial evidence. In evaluating Plaintiff's mental impairments, Plaintiff argues that the ALJ failed to consider the opinions of two psychologists who evaluated her on a consultative basis in connection with her application for benefits, and instead relied solely on the opinion of a non-examining, non-treating expert who testified at the hearing. The Commissioner argues that the ALJ properly evaluated the opinions contained in the record.
"Generally, [the ALJ] must give substantial weight to the treating physician's opinion, less weight to the opinions of doctors who have examined but not treated the claimant; and the least weight to opinions of doctors who have merely reviewed records but not treated or examined the claimant." Higgins v. Barnhart, 294 F. Supp.2d 1206, 1211 (D. Kan. 2003) (citingTalbot v. Heckler, 814 F.2d 1456, 1463 (10th Cir. 1987)); seealso Johnson-Winborn v. Apfel, 106 F. Supp.2d 1144, 1147 (D. Kan. 2000) ("SSR 96-6p requires an ALJ to treat the fact findings of a state agency reviewing physician as non-examining expert opinion."). In this case, the records reflects that Plaintiff's mental capacity was examined by one treating psychiatrist and two consulting psychologists. Moreover, an expert reviewed their diagnoses and provided testimony at Plaintiff's second hearing.
Plaintiff was examined by a treating psychiatrist once during the alleged period of disability when Dr. John H Henderson examined Plaintiff on July 19, 1999. Dr. Henderson is a psychiatrist who appears to have seen Plaintiff regularly for therapy and treatment from April 17, 1998 until July 19, 1999. In his notes from Plaintiff's July 19, 1999 visit, Dr. Henderson stated that Plaintiff was "nervous, stressful, moody, can't sleep, forgetful." At that visit, Dr. Henderson started Plaintiff on Effexor, an anti-depressant. Plaintiff was also examined by two consulting psychologists in conjunction with her application for benefits. First, on September 28, 1999, Gerald H. Vandenberg, Ph.D., performed a mental status evaluation on Plaintiff and reported that she had a depressed affect and was "a bit anxious" and "a bit teary eyed at times." Dr. Vandenberg also found that Plaintiff's "attention and concentrations were below expectation," her "Verbal abstract reasoning was good," and that her "general fund of information was fairly good." His overall impression was that Plaintiff had a mfld to moderate dysthymic disorder and that she could manage her own funds. Second, Plaintiff was examined by Bruce W. Bean, Ph.D., on February 2, 2000. Dr. Bean noted that Plaintiff "appears to be an individual who is rather notably depressed," but further observed that she was not undergoing treatment or taking any medications because of her financial limitations. Dr. Bean concluded that Plaintiff had the mental capacity to perform tasks in a work situation, but he also noted that her "depression would appear to limit her somewhat in terms of her potential for competitive employment."
Finally, at the second hearing, the ALJ requested psychologist George R. Chance, Ph.D., to review the record evidence and provide expert testimony concerning Plaintiff's mental health status. In his testimony, Dr. Chance stated that entries from Dr. Henderson's records did not describe any serious symptoms. Dr. Chance also mentioned that Dr. Vandenberg's overall impression of Plaintiff's condition was a dysthymic disorder and that Dr. Vandenberg believed Plaintiff was mentally competent and could manage her own funds. Dr. Chance further noted that Dr. Bean provided a diagnostic opinion of depression and that Dr. Bean stated that this could limit Plaintiff's potential for competitive employment. Finally, Dr. Chance noted that Plaintiff was prescribed an anti-depressant in 1999, but that the record did not indicate any hospitalizations or severe symptoms.
Plaintiff now argues that the ALJ based his mental RFC on Dr. Chance's testimony and "simply ignored the mental RFC as determined by the examining medical experts," Dr. Vandenberg and Dr. Bean. The court disagrees.
In his decision, the ALJ stated that he called Dr. Chance to testify as an expert regarding Plaintiff's level of mental and emotional functioning. The ALJ then discussed Dr. Chance's testimony, noting the diagnoses provided by Dr. Vandenberg and Dr. Bean, as well as the fact that Plaintiff "was taking a minimal dosage of anti-depressive medication, and that there was no evidence of severe symptoms." Moreover, the ALJ noted that although Plaintiff suffers from an affective disorder, Dr. Chance's testimony established that she did does not suffer "significant symptoms due to mental and emotional impairments."
While the ALJ's decision relied in part on Dr. Chance's testimony, it is also evident that the ALJ separately reviewed the record concerning Plaintiff's mental impairments. In his decision, the ALJ stated:
The undersigned has completed an independent review of the medical evidence, and finds that the medical expert's opinion is consistent with the evidence, which demonstrates that while claimant suffers from some symptoms of depression, they are not particularly disabling. Specifically, she stated at the hearing that she attends church regularly and sings in the church choir, which represents a level of social activity inconsistent with disabling depression. Also, claimant has had an inconsistent medical treatment history, and has not regularly taken medication or seen a mental health counselor, which is inconsistent with disability, as it is reasonable to assume that if claimant were as disabled as alleged, she would aggressively seek treatment, including low cost treatment options that are available. Moreover, a consultative examination by Dr. Vandenberg concluded that claimant suffered only mild to moderate symptoms due to her affective disorder.
The court determines that the ALJ properly considered the opinions of the two consulting psychologists, as well as the testimony of Dr. Chance in determining Plaintiff's mental RFC. Dr. Henderson was the only treating psychiatrist, and his notes did not reflect that Plaintiff suffered from severe symptoms of depression. Furthermore, Dr. Henderson's notes failed to provide an opinion concerning any potential limitations on Plaintiff's ability to work The only other evaluations of Plaintiff's depression came from Dr. Vandenberg and Dr. Bean. The court does not agree with Plaintiff's contention that the ALJ ignored the opinions of these two psychologists. The ALJ expressly mentioned the examination performed by Dr. Vandenberg when reporting his independent review of the evidence, and Dr. Chance's testimony is primarily based on the evaluations performed by the two consulting psychologists. The court concludes that the ALJ's mental RFC determination is supported by substantial evidence. The ALJ properly relied on the evidence contained in the record and the testimony provided at both hearings; Dr. Chance's testimony was not given undue weight. Moreover, Plaintiff has not pointed to any opinion conflicting with the ALJ's decision.
Claim 2: The ALJ Failed to Assess Plaintiff's Prior Work
Second, Plaintiff argues that the ALJ failed to make a function by function assessment as to the mental and physical demands of Plaintiff's past relevant work and to compare that with what she is presently capable of doing. Specifically, Plaintiff's brief asserts that "[i]n reviewing the decision of this ALJ, it is readily apparent that this ALJ made no attempt to assess claimant's prior work. . . ." The court disagrees.
At step four, the ALJ determined that Plaintiff's vision deficits and affective disorder did not prevent her from performing her past relevant work as a telephone solicitor, fast-food worker, greeter, and salad bar attendant. In reaching this decision, the ALJ relied on the testimony of a vocational expert. At the second hearing, the vocational expert testified that all of Plaintiff's past employment consisted of unskilled positions, requiring light or sedentary work. Equally important, the vocational expert observed that beginning in March 2001, during her alleged period of disability, Plaintiff had worked as a housekeeper for four to five months. The vocational expert stated that a housekeeper position also required light, unskilled work.
At the end of the hearing, the ALJ asked Plaintiff's attorney to provide documentation concerning Plaintiff's employment in 2001. In the ALJ's decision, he noted that he could not make an informed decision as to whether Plaintiff was performing substantial work because Plaintiff's attorney had not submitted the requested information. The ALJ noted, however, that this suggested that Plaintiff "had retained significant work capacity long after her alleged onset date."
During the hearing, the ALJ questioned the vocational expert with a hypothetical. The ALJ inquired as to what jobs Plaintiff could perform if she suffered from an affective disorder with a moderate severity level and endured some vision impairment, but could still follow simple instructions and do repetitive, light work The vocational expert stated that Plaintiff could still perform her past work as a salad bar attendant and a housekeeper, as well as other light work jobs that included a small parts assembler, a hand packager, and a mold machine operator. Plaintiff's attorney also offered a hypothetical to the vocational expert. He asked the vocational expert what light work Plaintiff could perform if she suffered from an "extreme" vision impairment, "so severe that it would be just one step" from being considered legally blind. The vocational expert responded that such a claimant would not be able to perform a full range of light work in those circumstances.
This level of visual impairment, however, is not supported by the record. The ALJ's decision noted that Plaintiff's visual acuity with corrected vision was 20/70 in the right eye, and 20/60 in the left eye. Plaintiff also testified that she liked to watch television, especially the news and Wheel of Fortune.
The court concludes that substantial evidence supports the ALJ's determination that Plaintiff could perform her past relevant work. The ALJ properly questioned the vocational expert as to Plaintiff's ability to perform her prior work, considering her visual impairments and affective disorder. The vocational expert noted that Plaintiff's past employment consisted of light work and testified that Plaintiff's impairments would not prevent her from doing light work This conclusion is consistent with the testimony of the vocational expert that testified in the first hearing, and is further bolstered by the fact that Plaintiff apparently worked as a housekeeper after her alleged onset of disability. Plaintiff maintains that the ALJ made no attempt to assess her prior work, but the court notes that it is Plaintiff's burden to establish disability. See Flores v. Sullivan, No. 91-2242-O, 1992 WL 221523, at *2 (D. Kan. Aug. 24, 1992) (citing Walden v. Bowen 813 F.2d 1047, 1049 (10th Cir. 1987) ("If the record does not contain evidence about the mental and physical demands of Plaintiff's past work, it is a reflection of Plaintiff's failure to make a prima facie showing on step number four, rather than an indictment of the Secretary's decision-making process.")).
Claim 3: The ALJ Failed to Consider Plaintiff's Non-Exertional Impairments
Finally, Plaintiff claims that the ALJ failed to take her non-exertional impairments into consideration when determining her RFC. Specifically, Plaintiff argues that the ALJ failed to consider the impact of her depressive disorder on her ability to do work. Again, the court disagrees.
In his decision, the ALJ factored Plaintiff's affective disorder into his assessment of Plaintiff's RFC. The ALJ, however, was not convinced that Plaintiff's depression was a disabling problem. He determined that the medical evidence indicated that Plaintiff suffered from a mild to moderate affective disorder, but he observed that Plaintiff had not been aggressively seeking treatment. See King v. Apfel, No. 00-4104-RDR, 2001 WL 1568350, at *6 (D. Kan. Nov. 30, 2001) (citations omitted) ("`If an impairment can reasonably be treated or controlled it cannot constitute a disability.'"). In her testimony from the first hearing, Plaintiff acknowledged that she should be on medication, but that she was unable to afford any medicine because her financial situation. When the ALJ asked her if she had looked into low cost services, she admitted that she had recently scheduled an appointment with the Wyandotte Mental Health Center. The ALJ's decision also mentioned that Plaintiff's daily activities were inconsistent with disabling depression. The record showed that Plaintiff attended church on a regular basis, sang in the church choir, and traveled with her family on fishing trips. Overall, the ALJ concluded that Plaintiff's inconsistent medical treatment history and her social activities, in conjunction with the lack of medical evidence indicating that she suffered any severe symptoms of depression, did not sustain a finding of disability.
The court determines that substantial evidence supports the ALJ's RFC findings regarding Plaintiff's affective disorder. Contrary to Plaintiff's assertion, the ALJ did not reject Plaintiff's depression "on his arbitrary whim."
IT IS, THEREFORE, BY THE COURT ORDERED that the decision of the Commissioner is affirmed.
The case is closed.
Copies of this order shall be transmitted to counsel of record.