NARANJO v. MASSANARI, (D.N.M. 2001)

MOLZEN, UNITED STATES MAGISTRATE JUDGE

After a first application for benefits was denied, Plaintiff Paul Naranjo (Naranjo) filed a second application for benefits alleging an onset date of May 16, 1996 based on the impairments of spinal spondylosis, degenerative disc disease, fibromyalgia, arthritis, and depression. Following a hearing, the Administrative Law Judge (ALJ) denied benefits on February 18, 1999. The Appeals Council denied review on May 12, 2000. This action was filed on June 5, 2000, and the matter is now before the Court on Plaintiffs Motion to Reverse and Remand for a Rehearing. Doc 10.

Having reviewed the entire record and considered the arguments and relevant law, I recommend that Plaintiffs motion be denied, the Commissioners decision affirmed, and this matter dismissed. Analysis If substantial evidence supports the ALJs findings and the correct legal standards were applied, the Commissioners decision stands and Plaintiff is not entitled to relief. E.g., Hamilton v. Sec'y of Health Human Servs., 961 F.2d 1495, 1497-1500 (10 th Cir. 1992). Plaintiff raises two issues the ALJ failed to apply the treating physician rule and the ALJ erred in finding depression to be nonsevere.

Plaintiff was first diagnosed with fibromyalgia as the possible source of his chronic pain in February 1997. See Record at 469, 531. Dr. Ben Daitz began treating Plaintiff around May 1997. He wrote two letters on Plaintiffs behalf, one in October 1997 and the other in November 1998. In these letters, Dr. Daitz explains that he is of the opinion that the recently-diagnosed fibromyalgia, which cannot be confirmed by laboratory or imaging tests, resulted in Naranjo not being able to work or support his family for a decade. Dr. Daitz supports Plaintiffs application for disability benefits and believes Plaintiff will be unable to hold a job in the future, even with treatment. See id. at 501, 547. The ALJ considered Dr. Daitz opinion but did not give it controlling weight because there was substantial evidence to the contrary and the opinion was not supported by objective medical findings. Id. at 372-373.

Plaintiff focuses exclusively on a narrow point. He argues that the ALJ failed to understand that there are no tests to confirm a diagnosis of fibromyalgia. Because Dr. Daitz did not state Plaintiffs exact points of tenderness, Naranjo contends that the ALJ had a duty to seek clarification from Dr. Daitz. Plaintiffs argument ignores the ALJs finding of substantial evidence contradicting Dr. Daitz opinion that Naranjo is totally disabled due to fibromyalgia.

I find that the ALJ did not err. A treating physicians opinion of nature and severity of an impairment, including physical and mental restrictions, is entitled to controlling weight if it is well supported by clinical and laboratory diagnostic techniques and if it is not inconsistent with other substantial evidence in the record. Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1029 (10 th Cir. 1994) (citing 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). However, a treating physicians opinion that a claimant is totally disabled is not dispositive, because final responsibility for determining the ultimate issue of disability is reserved to the Secretary. Id.

In evaluating a treating physicians opinion, the ALJ is not required to disregard the other medical evidence he is required to determine the weight to be afforded Dr. Daitz opinion. See Reid v. Chater, 71 F.3d 372, 374 (10 th Cir. 1995).

The ALJ did not discredit Dr. Daitz fibromyalgia diagnosis. Indeed, he found fibromyalgia among Plaintiffs severe impairments. Record at 369 (quotation in original).

Thus, there was no reason to seek further clarification from Dr. Daitz about the specific trigger points underlying his fibromyalgia diagnosis. Rather, the ALJs findings concern Dr. Daitz conclusion that Plaintiff is totally disabled and entitled to benefits because of fibromyalgia-induced pain of ten years standing. The ALJ gave specific, legitimate reasons that are supported by substantial evidence for disregarding Dr. Daitz opinion of disability. See Goatcher v. United States Dep't of Health Human Servs., 52 F.3d 288, 290 (10 th Cir. 1995).

Dr. Daitz opinion is based on the conclusion that Plaintiff has been complaining of chronic pain all over for a decade. Having reviewed the entire record, I find this conclusion suspect. The medical records indicate Plaintiff complained of pain in particular spots such as his shoulders, neck, and/or lower back. In addition, Dr. Daitz stated in 1997 that Naranjo had been unable to support his family for over a decade, yet the record reflects that Plaintiff in fact worked in the late 1980's and early 1990's. See id. at 64, 74.

In any event, as the ALJ noted, no treating or examining physician, including Dr. Daitz, placed restrictions on Naranjo. Id. at 373. Furthermore, as noted by the ALJ, another treating physician stated Plaintiff should be encouraged to work and Plaintiff agreed. Id. at 533, 372. Yet another consultative physician, Dr. Anthony Reeve, stated that Naranjo is an able bodied individual and should be able to work at a full duty release without restrictions. Id. at 483, 371.

Dr. C. H. Uhlenhuth, apparently a treating psychiatrist, noted in September 1998 that upon examination, Plaintiff initially moved stiffly as in pain but that this behavior abated. Id. at 552.

Plaintiff related a rather pleasant life to Dr. Uhlenhuth: working in the garden, visiting friends and relatives, driving his truck, watching TV, active in his church, driving to the far corners of the State in a church van. Id. at 373, 552. Plaintiff also told Dr. Steven Sacks, a consultative psychiatric physician, that he and his wife try to support themselves with going to flea markets or yard sales . . . they get things to sell from donations from their church. Id. at 373, 487-88.

For these reasons, I find that the ALJ did not fail to apply the treating physician rule. He applied it and properly weighed Dr. Daitz opinion in light of other substantial evidence in the record.

Evidence of a mental impairment that is alleged to prevent a claimant from working requires the ALJ to follow a particular procedure. That procedure, and more, was followed here.

The ALJ not only completed a Psychiatric Review Technique Form (PRT), but also had consultative psychiatrist Dr. Sacks examine Plaintiff, and had two reviewing psychiatrists review Plaintiffs psychological records and issue their own PRT reports. See Cruse v. United States Dept. of Health Human Servs., 49 F.3d 614, 617 (10 th Cir. 1995); see also 20 C.F.R. § 404.1520a, 416.920a (1999).

All three of the PRT reports are in accord: no more than slight limitations in daily living activities and maintaining social functioning, no more than seldom deficiencies in concentration, persistence or pace, and no episodes of deterioration or decompensation in a work or work-like setting. See Record at 377, 497, 514. Under the applicable regulations, these findings do not meet the Part B criteria for Plaintiffs depression to qualify as a listed severe impairment. See e.g., Cruse, 614 F.3d at 617.

The medical records from the University of New Mexico Mental Health Center include Dr. Uhlenhuths description of Plaintiffs daily activities and assessments of Naranjos condition as anywhere from not at all ill and malingering to moderately ill.

The medical records also indicate Plaintiffs prescriptions for antidepressant medication. See Record at 549-67. Dr. Sacks expressly noted Naranjos daily functioning as independent of supervision or direction and further described daily activities as driving to visit relatives, going to flea markets or yard sales, shopping, watering the garden, watching television, attending to his own grooming needs, raising cats, and attending church functions three times a week. Id. at 487-88. While Dr. Sacks questioned whether Plaintiff applied himself fully to the attention/concentration evaluation, id. at 487, he found Plaintiff well groomed, maintained good eye contact, had no bizarre or stereotype movements, sat in the chair for the entire interview, oriented and in contact with reality, able to do basic math and abstractions, and complied with taking his antidepressant medication, see id. at 486-487. Dr. Sacks concluded that Naranjo 6 appears to be able to relate with others. He is able to understand and follow basic instructions. I believe he could maintain the attention required to perform simple and repetitive tasks. He would have some difficulties withstanding the stresses and pressures associated with day-to-day work activity at the present time. I consider his psychiatric impairment to be moderate. . . . I consider his depression to be mild at the present time. Id. at 487-488.

Citing the medical records and the consultative examination of Dr. Sacks, the ALJ determined that Plaintiffs depression did not meet the severe listing at step 2. Id. at 369-70.

Plaintiff argues that the ALJ mischaracterized evidence of Plaintiffs daily activities, activities which he contends do not provide substantial evidence that Naranjo can perform full-time sustained employment. He maintains that the ALJ should have explained how these activities of daily living prove an ability to work. Doc. 11 at 6. I disagree.

Plaintiffs testimony regarding the type of daily activities in which he engages is consistent with what he reported to Drs. Uhlenhuth and Sacks and provides substantial evidence that Plaintiff is capable of performing light work. Moreover, Plaintiff does not argue that the evidence establishes the B criteria from the PRT reports, which is the relevant inquiry at step 2. The mere fact that Plaintiff has some depression does not automatically entitle him to a finding of disability. Bernal v. Bowen, 851 F.2d 297, 301 (10 th Cir. 1988).

Although Naranjo received an Axis V scale rating of 70 in June 1996, it was down to 40 by July 1998, and it was only up to 45 by December 1998. Plaintiff argues that a rating of 50 does not equate with the ability to perform unskilled competitive work [and] the ALJ should have considered these lower ratings. Doc. 11 at 7. However, the GAF score represents Axis V of the Multiaxial Assessment system. See American Psychiatric Assoc., DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 25-30, (4th ed. 1994). The axial system of evaluation enables the clinician to comprehensively and systematically evaluate a client. See id. at 25. The GAF rates the clients psychological, social, and occupational functioning. Id. at 30. The GAF is not an absolute determiner of ability to work. Stalvey v. Apfel, 242 F.3d 390 at *2 (10 th Cir. 1999) (emphasis added) (unreported) (attached).

Only some of Naranjos psychological records make a GAF assessment and, as noted above, other such records find him anywhere from not ill and malingering to moderately impaired at the time of the visit. Additionally, severity of depression can be situational and transient. As the Commissioner notes, the July 1998 report coincides with Plaintiffs notice of this Courts prior decision denying his motion to remand and denial of his welfare medical benefits due to noncompliance with treatment. See Record at 560; Naranjo v. Apfel, CIV No. 97-683 (June 30, 1998 dismissal). While he did not specifically mention the three Axis scores, I find that the ALJ did not err because he considered all of the Plaintiffs records in reaching his determination that [Plaintiff] could perform light work. Stalvey at *2.

Finally, Plaintiff contends that the ALJ failed to discuss the relevance of Dr. Sacks statement at steps 4 and 5 that Plaintiff would have some difficulties withstanding the stresses and pressures associated with day-to-day work activity at the present time. Record at 488. It is apparent that the ALJ gave consideration to this isolated statement since he specifically mentioned it. Nevertheless, I cannot say that the ALJs evaluation of Dr. Sacks report as a whole was in error. Because the ALJ properly found no significant mental impairment that would limit Naranjos ability to work, substantial evidence supported the conclusion that Plaintiff can do light work. Id. at 370, 372-373.

Wherefore,

IT IS HEREBY RECOMMENDED THAT Plaintiffs motion (Doc. 10) be denied, the Commissioners decision affirmed, and this action dismissed.

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 10 DAYS OF SERVICE of a copy of these Proposed Findings and Recommended Disposition they may file written objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any objections with the Clerk of the District Court within the ten day period if that party wants to have appellate review of the proposed findings and recommended disposition. If no objections are filed, no appellate review will be allowed.