MAX O. COGBURN, JR., United States Magistrate Judge.
THIS MATTER is before the court upon plaintiff's Motion for Summary Judgment and the Commissioner's Motion for Summary Judgment. Having carefully considered those motions and reviewed the pleadings, the court enters the following findings, conclusions, and recommendation.
FINDINGS AND CONCLUSIONS
I. Administrative History
On February 12, 1997, plaintiff filed an application for Supplemental Security Income benefits ("SSI") under Title XVI of the Social Security Act, alleging disability since February 12, 1997. Plaintiff's application was denied initially and upon reconsideration, and she filed on January 22, 1998, a request for a hearing. A hearing was held before an Administrative Law Judge ("ALJ") on February 25, 1999, in Hickory, North Carolina. Plaintiff appeared with counsel and testified. In her decision, the ALJ noted that plaintiff previously filed several Title XVI applications in 1977, 1978, 1979, 1984, 1990, 1991, 1992 and 1993. The ALJ issued her opinion on May 20, 1999, denying the relief sought, and the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. This action was timely filed, and it appearing that the issues have been fully briefed, the matter is now ripe for decision.
The court notes that this district has previously considered and resolved the case of Betty J. Hawkins v. Shalala, 4:93cv296 (W.D.N.C. 1994) (emphasis added), which was filed under a slightly different social security number, making it difficult to determine whether such case was pursued by plaintiff herein.
II. Factual Background
It appearing that the ALJ's detailed findings of fact are supported by substantial evidence, the undersigned adopts and incorporates those findings herein as if fully set forth. The following summary of those findings is set forth in order to aid further review.
The ALJ determined from the evidence presented that plaintiff had medically determinable impairments diagnosed as Crohn's disease with periodic flare-ups; moderate L2-3 disk space narrowing and degenerative changes of the lumbar spine; macrocytic anemia; dysthymic disorder; and pain disorder with psychological and physical components — all of which she found to be "severe," as defined in the Act.
At the third step of the sequential-evaluation process (discussed infra), the ALJ found that plaintiff did not have an impairment or combination of impairments which met the duration requirement and was of such severity as any impairment listed in, or medically equal to an impairment listed in, Appendix 1, Subpart P, Regulations No. 4. See 20 C.F.R. § 416.925. In addition, the ALJ found that no physician expressed the opinion that the severity of her impairments, either singly or in combination, was medically equivalent to any listing.
The ALJ further found that although plaintiff's impairments caused more than minimal limitation of her ability to perform basic work-related activities, plaintiff retained the residual functional capacity to perform light work with little or no public contact, but with the limitation of being near a restroom, due to her Crohn's disease.
In addition to plaintiff's medical records, which are fully presented in the administrative record and discussed by the ALJ in her decision, at issue infra are the results and findings of a consultative psychiatric evaluation, which was conducted on August 19, 1997, by Dr. K. M. Ahsanuddin, M.D.
Concerning that one-time examination, the ALJ found inconsistencies between the history related to the doctor by plaintiff and that elsewhere documented in the record. Plaintiff reported to Dr. Ahsanuddin that she had been depressed for "a while," with periods of remission; had lost some weight; and did not eat well because her appetite was poor. The ALJ, however, pointed to contemporaneous evidence of record that reflected no significant weight loss due to her Crohn's disease or any other reason and that plaintiff reported at other times having a good appetite, but having to eat several small meals during the day.
Dr. Ahsanuddin's examination revealed plaintiff walked slowly and acted as if she was in pain, she was 5'11" and weighed 150 pounds, she was fairly cooperative, and she showed sustained anxiety mixed with depression. She was alert, fully oriented, and able to focus well on various themes. Her intellectual ability seemed to be within the average range. Her insight was limited, and her personality showed mixed features.
Dr. Ahsanuddin's diagnostic impression was that plaintiff had a pain disorder with psychological and physical components (Crohn's disease), dysthymia, and panic disorder with agoraphobia, mild. Her global assessment of functioning (GAF) was 30. Her prognosis was that she would not improve further in her emotional and behavioral level of functioning.
In assigning little weight to such consultative diagnostic impression, the ALJ cited 20 C.F.R. § 416.927(d)(2) and found that such opinion on the nature and severity of plaintiff's impairment was not well-supported by medically acceptable clinical and laboratory diagnostic techniques and was not consistent with the other substantial evidence in the case record. For cause, the ALJ found that the following factors advised such departure:
1. Dr. Ahsanuddin saw plaintiff only on one occasion as a consulting examiner and was not a treating source.
2. His prognosis was not supported by medically acceptable or clinical data and was contrary to the record as a whole, which reflects that the plaintiff has had no treatment for her mental problems and that those problems were noted to be of a relatively mild nature to begin with.
3. He did not take into account that, with treatment, plaintiff might possibly sustain improvement of her mental status.
4. Plaintiff's mental problems were related to her physical condition and were not at such a severe level of intensity as to require hospitalization or any other drastic measures.
5. The ALJ cited contrary mental health evidence of record finding that plaintiff suffered only mild depression (Exhibit 8F/2), which reflects that it had not affected her cognitive functioning, social functioning, or her ability to function adequately on a daily basis. Further, the ALJ determined that plaintiff reported having this problem in adolescence and was evidently able to work despite it.
Subsequent to the consultative examination, a psychological evaluation was performed on December 10, 1998, by Michele Coates, M.A., due to plaintiff's allegations of memory problems. She reported a history of average to above average academic performance. At the time of evaluation, plaintiff was employed on a part-time basis as a school crossing guard and had worked at that position approximately 10 hours per week since August 1998.
During the evaluation, plaintiff reported that she suffered from mild depression since adolescence, with occasional exacerbation of symptoms. She complained of "significant memory problems." Plaintiff scored well on memory tests, except for Working Memory, obtaining an Index Score of 76.
During the mental status examination, it was noted that plaintiff walked slowly and acted as if in pain. Excessive anxiety was not observed or reported. The evaluator did report that plaintiff was friendly, polite and cooperative, but that her mood seemed sad with a constrictive affect — she never smiled, reported crying occasionally, and began crying the last 15 minutes of the interview. Plaintiff reported sleep disturbance (insomnia) and no appetite, but reported no weight loss. She also reported occasional suicidal ideation, but denied a plan or intent. She was well oriented in all spheres. Her judgment and impulse control appeared good, and her long-term memory appeared adequate, with no apparent retrieval problems.
The evaluator diagnosed dysthymia and mood disorder due to medical conditions. In addition, the evaluator found that plaintiff was able to follow verbal instructions well, with no observed or reported comprehension problems, and at no time required clarification; she could satisfactorily perform a repetitive work routine, would be able to adjust to a work schedule and environment, and could tolerate work stressors and relate well to coworkers or supervisors; and she appeared to be competent.
Finally, the ALJ also considered the opinions of the state agency medical consultants, who provided at the initial and reconsideration levels an assessment of plaintiff's residual functional capacity. The ALJ did not give those opinions controlling weight, but weighed them as those of highly qualified physicians who are experts in the evaluation of the medical issues in disability claims under the Social Security Act. SSR 96-6p.
III. Standard of Review
The only issues on review are whether the Commissioner applied the correct legal standards and whether the Commissioner's decision was supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 390 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Review by the undersigned is not de novo, Smith v. Schwieker, 795 F.2d 343, 345 (4th Cir. 1986); rather, inquiry is limited to whether there was "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," Richardson v. Perales, supra. Even if the undersigned were to find that a preponderance of the evidence weighedagainst the Commissioner's decision, the Commissioner's decision would have to be affirmed, if supported by substantial evidence. Hays v. Sullivan, supra.
IV. The Correct Legal Standard
Reflected in S.S.R. 90-1p and rulings subsequent thereto, the correct standard for evaluating claims based on pain is set forth explicitly in the appellate court's decision in Hyatt v. Sullivan, 899 F.2d 329 (4th Cir. 1990)(Hyatt III), in which the court held, as follows:
Once an underlying physical or mental impairment that could reasonably be expected to cause pain is shown by medically acceptable objective evidence, such as a clinical or laboratory diagnostic techniques, the adjudicator must evaluate the disabling effects of a disability claimant's pain, even though its intensity or severity is shown only by subjective evidence. If an underlying impairment capable of causing pain is shown, subjective evidence of the pain, its intensity or degree, can, by itself, support a finding of disability. Objective medical evidence of pain, its intensity or degree (i.e., manifestations of the functional effects of pain such as deteriorating nerve or muscle tissue, muscle spasm, or sensory or motory disruption), if available, should be obtained and considered. Because pain is not readily susceptible of objective proof, however, the absence of objective medical evidence of the intensity, severity, degree or functional effect of pain is not determinative.
Id., at 336. SSR 96-8p correctly provides that the assessment of residual functional capacity must be based on all of the relevant evidence, considering all allegations of physical and mental limitations or restrictions. When allegations of physical and mental limitations or restrictions are made, the ALJ is to consider each function separately in making an assessment of residual functional capacity. SSR 96-8p. The ALJ is obligated to consider only those limitations or restrictions which are alleged and/or based on relevant evidence. When there is no allegation of a physical or mental limitation or restriction of a specific functional capacity, and no information is found in the record that there is such a limitation or restriction, the adjudicator must consider the individual to have no limitation or restriction with respect to that functional capacity. In his decision, the ALJ set forth and applied the
Hyatt III standard and SSR 96-8p. As discussed above, the record reveals that the ALJ recognized and applied the correct legal standard in evaluating this particular plaintiff's subjective claims of pain.
V. Substantial Evidence
A. Introduction
The undersigned has read the transcript of plaintiff's administrative hearing, closely read the decision of the ALJ, and reviewed the extensive exhibits contained in the administrative record. The issue is not whether the undersigned might have reached a different conclusion had he been presented with the same testimony and evidentiary materials, but whether the decision of the ALJ is supported by substantial evidence. The undersigned finds that it is.
B. Sequential Evaluation
A five-step process, known as "sequential" review, is used by the Commissioner in determining whether a Social Security claimant is disabled. The Commissioner evaluates a disability claim under Title II pursuant to the following five-step analysis:
1. An individual who is working and engaging in substantial gainful activity will not be found to be "disabled" regardless of medical findings;
2. An individual who does not have a "severe impairment" will not be found to be disabled;
3. If an individual is not working and is suffering from a severe impairment that meets the durational requirement and that "meets or equals a listed impairment in Appendix 1" of Subpart P of Regulations No. 4, a finding of "disabled" will be made without consideration of vocational factors;
4. If, upon determining residual functional capacity, the Commissioner finds that an individual is capable of performing work he or she has done in the past, a finding of "not disabled" must be made;
5. If an individual's residual functional capacity precludes the performance of past work, other factors including age, education, and past work experience, must be considered to determine if other work can be performed.
20 C.F.R. § 404.1520(b)-(f). In this case, the Commissioner determined plaintiffs claim at the fifth step of the sequential-evaluation process.
C. The Administrative Decision
At the fourth step in the sequential-evaluation process, the ALJ determined that plaintiff lacked the residual functional capacity to perform any of her past relevant work, which primarily involved work as a school custodian. At the fifth step, the ALJ determined that plaintiff's impairments did not prevent her from doing other work. At the time of decision, plaintiff was 52 years of age (considered an individual closely approaching advanced age) with a high-school education and an Associate of Arts degree in corrections. Inasmuch as plaintiff was limited to light work with nonexertional limitations of little or no public contact and being near a restroom, the ALJ did not rely on the Medical-Vocational Guidelines, but employed a vocational expert, James L. Burge. The ALJ posed a hypothetical question to the vocational expert, asking him to assume the existence of an individual of plaintiff's age, education, and past work with the residual functional capacity for light work, but with the specified nonexertional limitations. The vocational expert testified that such an individual could perform a number of jobs which existed in significant numbers in the national economy — hand packaging/filling jobs, with 1600 such jobs regionally, 316, 000 such jobs nationally, and 15, 000 such jobs in North Carolina; and entry-level jobs, such as sales clerks, records, file clerks, complaint and desk clerks, etc., with 4300 such jobs regionally, 1, 800, 000 such jobs nationally, and 35, 000 such jobs in North Carolina.
The ALJ then asked the vocational expert to add the limitation of a sit/stand option, and he testified that this would affect the hand packaging jobs, reducing the numbers to 800 regionally, 195, 000 nationally, and 8, 000 in North Carolina, but would not cause a significant reduction of the clerical jobs mentioned. Taking into account the vocational expert's testimony, as well as that of the plaintiff, the ALJ concluded that plaintiff was capable of performing a number of jobs which exist in significant numbers in the national economy.
D. Discussion
1. Plaintiff's Assignments of Error
Plaintiff has made the following assignments of error:
I. The ALJ erred when he rejected the report of Dr. K. M. Ahsanuddin;
II. There was no substantial evidence for the ALJ's finding of a residual functional capacity for light work with medications; and
III. The ALJ omitted significant impairments from plaintiff's hypothetical question.
Plaintiffs assignments of error will be discussed seriatim.
2. First Assignment of Error: The ALJ Erred When he Rejected The Report of Dr. K. M. Ahsanuddin
The opinion of a treating physician may be disregarded only if there is persuasive contradictory evidence. Mitchell v. Schweiker, 699 F.2d 185 (4th Cir. 1983).
Objective medical facts and the opinions and diagnoses of the treating and examining doctors constitute a major part of the proof to be considered in a disability case and may not be discounted by the ALJ.
Id., at 187. A treating physician is a physician who has observed the plaintiff's condition over a prolonged period of time.
Id. Even the opinion of a treating physician may be disregarded where it is inconsistent with clearly established contemporaneous medical records.
See 20 C.F.R. § 404.1527(d)(4).
The record is clear that Dr. Ahsanuddin was not plaintiff's treating physician and based his conclusions on one consultative visit. The ALJ properly determined that Dr. Ahsanuddin was not a treating source in accordance with the factors set out in 20 C.F.R. § 416.927(d)(2). The ALJ's finding that Dr. Ahsanuddin's opinion is not supported by the findings that he made in his report is supported by substantial evidence. For example:
1. Dr. Ahsanuddin stated that Plaintiff was suffering from moderately severe depression.
The only evidence Dr. Ahsanuddin cited was plaintiff's statements that she had been depressed for awhile and that she had experienced suicidal ideation; his report did not reflect consideration of evidence that plaintiff had periods when she was not depressed, that she failed to seek treatment for her depression and that she did not indicate how long ago or how often she suffered suicidal ideation.
2. Dr. Ahsanuddin noted that plaintiff had sustained anxiety.
Plaintiff made no statements to the doctor that she suffered from anxiety or panic attacks.
3. Dr. Ahsanuddin noted that plaintiff had a Global Assessment of Functioning ("GAF") Score of 30.
Dr. Ahsanuddin did not document clinical evidence to support this claim, as he noted in his report that plaintiff had no psychotic symptoms, no problem with judgment, and demonstrated no signs of psychosis or homicidal/suicidal thoughts. The ALJ also found Dr. Ahsanuddin's opinion to be based on statements not consistent with the administrative record. Plaintiff told Dr. Ahsanuddin the following:
[S]he doesn't read because she has problems concentrating, she does not have friends visit her, she does not see her relatives, she doesn't go shopping and she watches little television.
Tr., at 222-23. Such reported history is contrary to testimony and statements that plaintiff made elsewhere in the record. Plaintiff informed Ms. Coats that reading was her hobby, that she sang in the church choir, and that she acted as secretary for her missionary club. At various parts of the record, plaintiff reports a robust social, family, and civic life, including visiting her neighbor every day when her neighbor takes her to her part-time job, shopping, seeing her grandchildren, going to the laundromat when her daughter takes her once or twice a month, attending church services twice a week, and being checked on twice a week by her sister.
Contrary to the doctor's findings, plaintiff testified that she reads for enjoyment, and if she has to stop reading, it is not due to a concentration problem, but is a result of her eyes needing rest and her having blurred vision. Finally, Dr. Ahsanuddin's opinions are wholly inconsistent with the findings of Ms. Coats. The ALJ, therefore, did properly evaluate Dr. Ahsanuddin's opinion as required under 20 C.F.R. § 416.927(d)(2) and found such consultative opinion was not supported by medical evidence from Dr. Ahsanuddin's own examination and was inconsistent with other evidence in the administrative record. The undersigned can find no error on the part of the ALJ and must find that her determination is consistent with current law and that she further satisfied her obligation of explaining and giving good and adequate reasons for giving the opinion of Dr. Ahsanuddin less than full credit.
3. Second Assignment of Error: There was no Substantial Evidence for the ALJ's Finding of a Residual Functional Capacity for Light Work with Medications
It is the duty of the ALJ alone to determine an applicant's residual functional capacity. 20 C.F.R. § 416.946. Under 55R96-8p, the ALJ must consider functional limitations and restrictions that result from a plaintiff's impairment. In this case, the ALJ based her decision as to residual functional capacity on the findings of the state agency doctor, who found that plaintiff could frequently lift ten pounds; was able to sit, stand and walk for six out of eight hours; and had no limitations in her ability to push or pull.
In making a determination as to residual functional capacity, the ALJ was not obligated to defer to Dr. Seagle's opinion that plaintiff was limited to "sedentary work." Even if deference were to be given such vocational conclusion by a physician, Dr. Seagle's opinion that plaintiff was limited to sedentary work was not supported by clinical findings as to plaintiff's ability to lift, sit, stand, walk, push, or pull. Instead, Dr. Seagle's clinical findings are remarkably inapposite to such a severe vocational limitation, in that he found that plaintiff had no tenderness in her back or spine, she could bend forward, she had 90 degrees of forward flexion, she had ten degrees of extension in her thoracolumbar spine, she had a normal gait, and she could walk on her toes and heels. Dr. Seagle further found that plaintiff was able to walk without assistance and that there was no objective evidence to support her claim of arthritis.
The ALJ's determination that plaintiff had the residual functional capacity for light work was supported by substantial evidence. In addition to the findings of the state agency that would independently support the ALJ, the evidence of plaintiff's daily activities supports the ALJ's determination as to residual functional capacity. The nature of a plaintiff's symptoms, the effectiveness of any medication she is taking, and her daily activities are all relevant factors when considering subjective symptoms. 20 C.F.R. § 404.1529(c)(3)(i) and 416.929(c)(3)(i). Substantial evidence supports the ALJ's determination as to residual functional capacity.
4. Third Assignment of Error: The ALJ Omitted Significant Impairments from Plaintiff's Hypothetical Question.
Finally, plaintiff contends that the ALJ failed to present all significant impairments to the vocational expert in her hypotheticals. Hypothetical questions posed by an ALJ to a vocational expert must fully describe a plaintiffs impairments and accurately set forth the extent and duration of the plaintiff's pain, if any. Cornett v. Califano, 590 F.2d 91 (4th Cir. 1978). Plaintiff contends that the ALJ should have informed the vocational expert that plaintifff "cries for no reason, has major depression, suffers from diarrhea and a back problem and has weakness in her working memory." As discussed above, the ALJ's decision to give less than full credit to allegations of major depression, back problems, and lack of emotional control is supported by substantial evidence.
Where the ALJ properly formulates her hypothetical to reflect accurately the condition and limitations of the plaintiff, the ALJ is entitled to afford the opinion of the vocational expert great weight.Shively v. Heckler, 739 F.2d 987 (4th Cir. 1984). Inasmuch as plaintiff's conditions and limitations were accurately portrayed to the vocational expert in the hypotheticals, see discussion in Section V(c) supra, the ALJ did not fail to consider all the evidence, and her reliance on the opinion of the vocational expert that jobs were available to a person with plaintiff's limitations was proper. Substantial evidence supports the ALJ's determinations.
E. Conclusion
The undersigned has carefully reviewed the decision of the ALJ, the transcript of proceedings, plaintiffs motion and brief, the Commissioner's responsive pleading, and plaintiff's assignments of error. Review of the entire record reveals that the decision of the ALJ is supported by substantial evidence. See Richardson v. Perales, supra; Hays v. Sullivan, supra. Finding that there was "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,"Richardson v. Perales, supra, the undersigned must recommend to the district court that plaintiff's Motion for Summary Judgment be denied, the Commissioner's Motion for Summary Judgment be granted, and the decision of the Commissioner be affirmed.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that
(1) the decision of the Commissioner, denying the relief sought by plaintiff, be
AFFIRMED;
(2) the plaintiff's Motion for Summary Judgment (#8) be DENIED;
(3) the Commissioner's Motion for Summary Judgment (#10) be
GRANTED; and
(4) this action be DISMISSED.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984).