JOHN M. BODENHAUSEN, Magistrate Judge.
This cause is on appeal from an adverse ruling of the Social Security Administration. The suit involves an Application for Disability Insurance Benefits under Title II of the Social Security Act. Plaintiff has filed a Brief in Support of her Complaint, and the Commissioner has filed a Brief in Support of her Answer. The parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).
On March 5, 2010, Plaintiff Vicky L. Muckey filed an Application for Disability Insurance Benefits under Title II of the Act, 42 U.S.C. §§ 401
At the hearing on May 5, 2011, Plaintiff testified in response to questions posed by the ALJ and counsel. (Tr. 28-39) She lives with her husband in Festus. (Tr. 28) Plaintiff has a GED and additional training as a bookkeeper from Sanford Brown College, and as a dispatcher, from Abbott Ambulance. (Tr. 29)
Plaintiff acknowledged the medical records show she helped her niece from September through December 2009, by answering the phones at her office. (Tr. 30) Plaintiff stated she possibly stopped receiving unemployment benefits is 2010. (
Plaintiff testified that Dr. Malik of Psych Care Consultants has treated her for almost a year, and Dr. Malik provides medication management to her. (Tr. 33) She testified that Dr. Malik treats her for anxiety, bipolar disorder, and depression. (Tr. 34) During treatment, she complained of memory problems. (Tr. 38) Plaintiff testified that she cannot afford the $50 deductible to see the doctor. (Tr. 33) As a child, Plaintiff was treated for ADHD, and her treating doctor diagnosed her with ADHD. (Tr. 39)
Plaintiff testified she takes her medications when she remembers, but she admitted she does not take her medications consistently. (Tr. 35) Plaintiff explained how, when she forgot to take her medications for a couple of days, her husband questioned whether she had been taking her medications based on her behavior. (Tr. 36) Plaintiff testified that her doctor does not know she is not taking her medications consistently. (
As to her daily activities, Plaintiff testified that she has not done much since 2009, because she feels down. (Tr. 35-36) She forgets appointments and birthdays. (Tr. 38) Plaintiff stopped working on February 25, 2009, her alleged onset date of disability, after she was fired for frequently missing work. (Tr. 34)
Vocational Expert Dr. Gerald Belchick testified at the hearing. (Tr. 39-46) The ALJ noted the records and Plaintiff's testimony show she has work experience as an ambulance dispatcher, a cashier, a bookkeeper, and a receptionist/secretary. (Tr. 41) Dr. Belchick noted that Plaintiff worked as receptionist from 1995 through 1997, a semi-skilled job considered sedentary. (Tr. 42) From 1998 through 2001, she worked as a bookkeeper, a skilled job considered sedentary. Dr. Belchick noted that Plaintiff next worked as a cashier in a retail setting from 2001 through 2005, a semi-skilled job considered light. From 2005 through 2009, Plaintiff worked as a dispatcher for an ambulance service, a semi-skilled job considered sedentary. (
The ALJ noted that, although the medical records and her hearing testimony do not show Plaintiff has any physical limitations, she does have non-exertional limitations related to her mental impairments. (Tr. 42-43) Specifically, the ALJ opined Plaintiff is limited to unskilled work, and she is precluded from working in a setting which requires constant regular contact with the general public or more than infrequent handling of customer complaints. (Tr. 43) When asked whether Plaintiff could perform any of her past relevant work with those limitations, Dr. Belchick testified that all of her past relevant work would be eliminated, and there would be no transferable skills. (
Next the ALJ asked "whether a hypothetical individual with the same educational background, vocational profile, and residual functional capacity has the ability to perform any occupations that exist in significant numbers on a regional and national level?" (Tr. 43) Dr. Belchick first identified an unskilled job of assembling that can be performed at either the sedentary, light or medium exertional level. (Tr. 44) At the light level, Dr. Belchick indicated there are 3,100 jobs locally, and nationally 400,000 jobs available. Next, Dr. Belchick identified another unskilled job of packaging that can be performed at either the sedentary or light level, with 2,400 jobs in the local area and about 245,000 jobs nationally. The third unskilled job he identified was a kitchen helper with duties including mostly dishwashing, with a light level and 3,500 jobs available locally and about120,000 nationally. (
Plaintiff's counsel asked Dr. Belchick whether a hypothetical individual who had marked limitations in her ability to accept instruction and respond appropriately to supervisors in the work place would be able perform any of the jobs he listed. (Tr. 45) Dr. Belchick noted how marked limitations by definition would preclude the ability to perform the jobs. Next, counsel asked if the individual missed more than three days of work per month as a regular occurrence, would she be able to perform any of the jobs he listed. Dr. Belchick explained the national average is one day a month, and so absences in excess of one day a month would eliminate the jobs he cited. (
In a post hearing addendum to the record, the ALJ opined as follows:
(Tr. 46-49)
In the Disability Report — Adult, Plaintiff reported she stopped working because of her conditions and other reasons, mainly she was fired due to her attendance. (Tr. 183-85) She listed in her job history the following jobs: dispatcher, cashier, bookkeeper, and receptionist. (Tr. 186)
In her Function Report — Adult, Plaintiff reported her daily activities include eating breakfast, watching television, hanging around the house, sometimes doing her laundry, making lunch, and sometimes making dinner. (Tr. 172) Sometimes she visits family or friends, and she goes shopping as needed. (
To obtain disability insurance benefits, Claimant must establish that she was disabled within the meaning of the Social Security Act not later than the date her insured status expired — June 30, 2014.
On August 8, 2008, Plaintiff presented at Kirkwood Medical Group for preventive medicine treatment and reported having anxiety. (Tr. 264) The neuro/psychiatric examination was negative for appropriate interaction, combativeness, and difficulty concentrating. (Tr. 265) Dr. Singer found her memory to be intact. (
In follow-up treatment on January 16, 2009, Dr. Singer noted Plaintiff has psychiatric symptoms including anxiety and difficulty concentrating. (Tr. 260, 352) Psychiatric examination showed she has a normal attention span and concentration. (Tr. 261) Dr. Singer prescribed Concerta. (
On referral by Dr. Singer, Dr. Alan Politte completed a psychological evaluation on September 1 and 17, 2009, and diagnosed Plaintiff with ADHD. (Tr. 220-29, 377-85) Plaintiff reported being diagnosed with ADD as a child and taking Ritalin, but she stopped taking ADD medication some time ago. (Tr. 221, 378) After reading a book on ADD, she decided she still has ADD, and she believes ADD is causing most of her problems. After seeing Dr. Singer, her primary care physician who prescribed an antidepressant, Plaintiff reported how she decided not to take the medication. (
On November 17, 2009, Plaintiff started treatment with Dr. Gautum Datta of Psych Care Consultants. (Tr. 305) Plaintiff noted her current psychosocial stressors to be her husband and lack of medications. Dr. Datta diagnosed ADD, ruled out bipolar affective disorder, and prescribed Xanax, Dilantin, and Seroquel
In a March 31, 2010, Psych Care Consultants treatment note, Plaintiff stated she is unhappy in her marriage and having a lot of anger and high anxiety. (Tr. 324, 363) Plaintiff reported that Dr. Datta had been treating her for ADD and prescribed Ritalin and Adderall. Dr. Malik found Plaintiff endorsed symptoms of bipolar disorder. (
Completing a Mental Residual Functional Capacity Assessment dated May 6, 2010, Dr. James Morgan concluded that, in the three abilities in the area of understanding and memory, Plaintiff was not significantly limited. (Tr. 328) In the area of sustained concentration and persistence, she was not significantly limited in five of the seven abilities: namely her abilities to (i) to carry out very short and simple instructions; (ii) to carry out detailed instructions; (iii) to maintain attention and concentration for extended periods; (iv) to sustain an ordinary routine without special supervision; and (v) to make simple work-related decisions. Plaintiff was moderately limited in the remaining two abilities: namely, (i) her abilities to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; and (ii) to work in coordination with or proximity to others without being distracted by them. (Tr. 328-29) In the area of social interaction, Plaintiff was not significantly limited in one of the five abilities, i.e., her ability to ask simple questions or request assistance, and was moderately limited in three, namely her abilities to (i) interact appropriately with the general public; (ii) get along with coworkers or peers without distracting them or exhibiting behavioral extremes; and (iii) maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness. Plaintiff was markedly limited in her ability to accept instructions and respond appropriately to criticism from supervisors. (Tr. 329) In the area of adaptation, she was not significantly limited in three of four abilities listed, namely her abilities to (i) to be aware of normal hazards and take appropriate precautions; (ii) travel in unfamiliar places or use public transportation; and (iii) set realistic goals or make plans independently of others. Plaintiff was moderately limited in one, i.e., to respond appropriately to changes in the work setting. (
Also in May 2010, Dr. Morgan completed a Psychiatric Review Technique and noted Plaintiff has an organic mental disorder, ADD, an affective disorder, bipolar, and a personality disorder, but the medical evidence record shows her alleged severity appears to be partially credible, and she has the ability to work away from the public. (Tr. 331-41) In particular, Dr. Morgan found Plaintiff to be markedly limited in maintaining social functioning. (Tr. 339)
In a May 17, 2010, "To Whom it May Concern Letter" sent to the Department of Disability, Dr. Malik stated Plaintiff has been under her care since March 31, 2010, and has a GAF assessment of 60/70. (Tr. 346) Dr. Malik opined "[b]ecause of her mental illness, she has not been able to maintain gainful employment." (
In follow-up treatment on June 4, 2010, with Dr. Malik, although she noted not being as moody or angry, Plaintiff explained how when people upset her, "she goes off on people." (Tr. 368-69) Dr. Malik found she still had depressive symptoms, but her anxiety had improved. (Tr. 368) Plaintiff stated people told her she is calmer, but she still gets agitated with people. (Tr. 369) Dr. Malik increased her Abilify dosage and added Lithobid. (
Dr. Malik completed a Mental Health Source Document — Depression and/or Anxiety in a check-box format on August 4, 2010. (Tr. 389) Dr. Malik opined Plaintiff would have marked limitations in her ability to deal with work stress. Her psychological conditions affecting her ability to work are anxiety and mood disorder. Dr. Malik noted her symptoms would frequently limit her ability to handle work demands, persistence, and expectations and to focus, organize, and complete work tasks timely. Dr. Malik checked off crying spells, loss of energy, fatigue, loss of interest in activities, sleep disturbance, difficulty with memory and concentration, reduced social function, restriction in daily activities, mental and physical exhaustion, always feels stress, feelings of loss of control, and reduced social life as depressive symptoms present. Dr. Malik noted that she first treated Plaintiff on March 31, 2010. (
During treatment on December 13, 2010, Plaintiff reported her mood to be better and improvement in sleep, but she is crying over little things. (Tr. 397) Dr. Malik increased her dosage of Lithobid and added Celexa to address her depressive symptoms. (Tr. 397-98) In follow-up treatment on February 7, 2011, Plaintiff noted how she is feeling better, but occasionally she feels down so she gets up and does things. (Tr. 398) Since starting the two medications, her relationship with her husband has improved, and she is not irritable or having crying spells. She still experiences a little anxiety, but her anxiety is not as bad as it used to be. Plaintiff reported Celexa having helped. (
In the June 6, 2011, "To Whom it May Concern Letter" sent to her attorney's office, Dr. Malik noted how Plaintiff is currently a patient under her care being treated for bipolar disorder, anxiety, and depressive symptoms. (Tr. 401) She prescribes Abilify, Lithobid, and Celexa. Dr. Malik noted how "her illness causes her problems with her concentration and memory," and "she has difficulty remembering to take her medications." (
The ALJ found that Plaintiff met the insured status requirements of the Social Security Act on February 25, 2009, and she has remained insured throughout the period of the decision. (Tr. 16) Plaintiff has not engaged in substantial gainful activity since February 25, 2009. The ALJ found Plaintiff has the severe impairments of bipolar disorder and attention deficit hyperactivity disorder, but no impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4. The ALJ found that since February 25, 2009, Plaintiff has the residual functional capacity to perform work at all exertional levels, and she has the ability to understand, remember and carry out at least simple instructions and non-detailed tasks. The ALJ imposed the limitations that Plaintiff's work must not require constant or regular contact with the general public or more than infrequent handling of customer complaints. (
In a disability insurance benefits case, the burden is on the claimant to prove that he or she has a disability.
The Commissioner has promulgated regulations outlining a five-step process to guide an ALJ in determining whether an individual is disabled. First, the ALJ must determine whether the individual is engaged in "substantial gainful activity." If she is, then she is not eligible for disability benefits. 20 C.F.R. § 404. 1520(b). If she is not, the ALJ must consider step two which asks whether the individual has a "severe impairment" that "significantly limits [the claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). If the claimant is not found to have a severe impairment, she is not eligible for disability benefits. If the claimant is found to have a severe impairment the ALJ proceeds to step three in which he must determine whether the impairment meets or is equal to one determined by the Commissioner to be conclusively disabling. If the impairment is specifically listed or is equal to a listed impairment, the claimant will be found disabled. 20 C.F.R. § 404.1520(d). If the impairment is not listed or is not the equivalent of a listed impairment, the ALJ moves on to step four which asks whether the claimant is capable of doing past relevant work. If the claimant can still perform past work, she is not disabled. 20 C.F.R. § 404.1520(e). If the claimant cannot perform past work, the ALJ proceeds to step five in which the ALJ determines whether the claimant is capable of performing other work in the national economy. In step five, the ALJ must consider the claimant's "age, education, and past work experience." Only if a claimant is found incapable of performing other work in the national economy will she be found disabled. 20 C.F.R. § 404.1520(f);
Court review of an ALJ's disability determination is narrow; the ALJ's findings will be affirmed if they are supported by "substantial evidence on the record as a whole."
In reviewing the Commissioner's decision, the Court must review the entire administrative record and consider:
Plaintiff argues that the ALJ failed to give the proper weight to the opinion of her treating physician, Dr. Shazia Malik.
"A treating physician's opinion is given controlling weight if it `is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [a claimant's] case record.'"
The undersigned finds that the ALJ considered Dr. Malik's opinions set forth in the onepage attorney-commissioned Mental Health Source Document — Depression and/or Anxiety and gave little weight to Dr. Malik's opinions in her written opinion as follows:
(Tr. 17) (internal citation omitted)
In the Mental Health Source Document — Depression and/or Anxiety ("Source Document"), completed on August 4, 2010, Dr. Malik opined Plaintiff would have marked limitations in her ability to deal with work stress, and her anxiety and mood disorder affected her ability to work. Dr. Malik also noted Plaintiff's symptoms would frequently limit her ability to handle work demands, persistence, and expectations and to focus, organize, and timely complete work tasks. Dr. Malik checked off crying spells, loss of energy, fatigue, loss of interest in activities, sleep disturbance, difficulty with memory and concentration, reduced social function, restriction in daily activities, mental and physical exhaustion, always feels stress, feelings of loss of control, and reduced social life as depressive her symptoms. In the May 17, 2010, "To Whom it May Concern Letter" sent to the Department of Disability, Dr. Malik indicated Plaintiff had a GAF assessment of 60/70 and opined "[b]ecause of her mental illness, she has not been able to maintain gainful employment."
In the instant case, the record includes a treatment note of a visit to Dr. Malik on the day she completed the Source Document. The Source Document was only a series of check marks to assess the mental limitations of Plaintiff with little or no explanation of the findings. A checklist format and conclusory opinions, even of a treating physician, are of limited evidentiary value.
With respect to the alleged inability to concentrate and difficulty with memory, the ALJ found Dr. Malik's opinion was inconsistent with her own treatment notes inasmuch as she never found such limitations during treatment.
Further, a review of Dr. Malik's treatment notes show she never imposed any mental limitations or any work restrictions on Plaintiff.
Lastly, Dr. Malik's opinions were inconsistent with other substantial medical evidence. The evaluation of Plaintiff's mental status by Drs. Politte and Datta failed to evidence any deficits or abnormalities other than a poor self image, feelings of insecurity, and on occasion, abnormal affect, decreased concentration, low energy, and/or disturbed sleep. The January 16, 2009 psychiatric examination by Dr. Singer showed Plaintiff had a normal attention span and concentration. Moreover, the assessments of Plaintiff's GAF ranged from 70 to 55 during the relevant time period. The ALJ properly accorded Dr. Malik's opinions in the Source Document little weight inasmuch as her findings were inconsistent with, and unsupported by, the evidence of record.
Further, no examining physician in any treatment notes stated that Plaintiff was disabled or unable to work or imposed mental limitations on Claimant's capacity for work.
For the foregoing reasons, the ALJ's decision is supported by substantial evidence on the record as a whole. An ALJ's decision is not to be disturbed "`so long as the ... decision falls within the available zone of choice. An ALJ's decision is not outside the zone of choice simply because [the Court] might have reached a different conclusions had [the Court] been the initial finder of fact.'"
