GARR M. KING, District Judge.
Plaintiff Torrie Merriam brings this action pursuant to section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner denying plaintiff's application for disability insurance benefits ("DIB") and supplemental security income benefits ("SSI"). I affirm the decision of the Commissioner.
Merriam filed applications for DIB and SSI on October 10, 2007, alleging disability as of May 23, 2006. The applications were denied initially and upon reconsideration. After a timely request for a hearing, Merriam, represented by counsel, appeared and testified before an Administrative Law Judge ("ALJ") on February 19, 2010.
On March 26, 2010, the ALJ issued a decision finding that Merriam was not disabled within the meaning of the Act and therefore not entitled to benefits. This decision became the final decision of the Commissioner when the Appeals Council declined to review the decision of the ALJ on October 1, 2010.
The Social Security Act (the "Act") provides for payment of disability insurance benefits to people who have contributed to the Social Security program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1). In addition, under the Act, supplemental security income benefits may be available to individuals who are age 65 or over, blind, or disabled, but who do not have insured status under the Act. 42 U.S.C. § 1382(a).
The claimant must demonstrate an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to cause death or to last for a continuous period of at least twelve months. 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). An individual will be determined to be disabled only if his physical or mental impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B).
The Commissioner has established a five-step sequential evaluation process for determining if a person is eligible for either DIB or SSI due to disability. The evaluation is carried out by the ALJ. The claimant has the burden of proof on the first four steps.
If the impairment is severe, the ALJ proceeds to the third step to determine whether the impairment is equivalent to one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d) and 416.920(d). If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is presumed to be disabling, the ALJ proceeds to the fourth step to determine whether the impairment prevents the claimant from performing work which the claimant performed in the past. If the claimant is able to perform work she performed in the past, a finding of "not disabled" is made and disability benefits are denied. 20 C.F.R. §§ 404.1520(e) and 416.920(e).
If the claimant is unable to perform work performed in the past, the ALJ proceeds to the fifth and final step to determine if the claimant can perform other work in the national economy in light of his age, education, and work experience. The burden shifts to the Commissioner to show what gainful work activities are within the claimant's capabilities. Parra, 481 F.3d at 746. The claimant is entitled to disability benefits only if he is not able to perform other work. 20 C.F.R. §§ 404.1520(f) and 416.920(f).
The court must affirm a denial of benefits if the denial is supported by substantial evidence and is based on correct legal standards.
The ALJ found Merriam had the severe impairments of major depressive disorder, PTSD, personality disorder NOS, mild lumbar spondylosis, left ulnar mononeuropathy, early matatarsalgia, asthma, and history of seizure disorder. The ALJ found that these impairments, either singly or in combination, did not meet or medically equal the requirements of any of the impairments listed in 20 C.F.R. § 404, Subpart P, Appendix 1.
The ALJ concluded that Merriam had the residual functional capacity ("RFC") to lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk six hours in an eight hour workday, and sit six hours in an eight hour workday. He found Merriam to be limited to occasional use of foot controls bilaterally, with only occasional ladder, rope and scaffold climbing. She should avoid moderate exposure to pulmonary irritants and concentrated exposure to workplace hazards. She was limited to performing simple, repetitive tasks consistent with unskilled work in an environment with minimal changes. Finally, he concluded Merriam should have limited contact with the general public and her contact with coworkers and/or supervisors should be restricted to only work-related issues.
Based on this RFC, and relying on the testimony of a vocational expert ("VE"), the ALJ believed Merriam could work as a fruit sorter, stuffer, or small parts assembler.
Merriam, a 34-year old with a GED at the time of her alleged onset of disability, identified a seizure disorder, hypertension, sleep apnea, a head injury, and memory loss as the reasons for her inability to work. Her most recent job, which lasted from 2004 to May 2006, was working as a night clerk at a motel where she was responsible for bookkeeping tasks; her mother was her manager. Merriam also had prior work experience at a bowling alley, performing customer service, cashier and bookkeeping tasks there for five years. She was fired due to theft allegations.
A neurologist in 1999 referred Merriam to obtain an EEG after she reported experiencing a "generalized convulsive seizure in May of 1999." The test results were normal, reflecting "no evidence of a focal lateralized or epileptiform abnormality." Tr. 464.
Merriam received treatment after a car accident in 2004. The accident happened when she began merging into the lane to her right, from a complete stop, and was hit by a Chevy Astro van. Her airbag deployed. She went to the emergency room complaining about pain in her feet, tailbone and hips. Notably, she made no allegation of being hit in the face or head. She subsequently received care for low back pain, and finger and left forearm numbness and tenderness.
Merriam obtained treatment for seizures on four occasions in July and August 2006, then again on November 27 and December 12, 2006. During the August 2006 visit, George A. Palmer, M.D., opined that "none of the events she describes today are epileptic," and he believed the "emotional seizures" she described experiencing during family disputes were actually panic attacks. Tr. 250.
On February 21, 2007, Travis Owens, Psy.D., examined Merriam and diagnosed Major Depressive Disorder, Severe with Psychotic Features; Bereavement; Cannabis Abuse; Obsessive-Compulsive Disorder (Provisional), and a Rule Out diagnosis of Bipolar Disorder. She tested with a low average IQ. She reported her disability as seizures, depression, herniated disc, loss of rotation in right shoulder, and fracture in her right hip; she reported her disability first became noticeable when she had her first seizure at 14 months old. She used marijuana for pain in her face when an airbag struck her in the face during the 2004 car accident. Dr. Owens opined that Merriam had a mild limitation in social interactions, marked impairment in daily activities, mild impairment in understanding, remembering and carrying out simple instructions, and moderate impairment in understanding, remembering and carrying out complex instructions. Dr. Owens believed Merriam demonstrated moderate to marked impairment in responding appropriately to coworkers, supervisors, and the public, while her ability to maintain attention, concentration, persistence and pace was only mildly impaired. Dr. Owens assigned a GAF of 35.
She obtained treatment for seizures from Thomas Hankins, M.D., reporting on February 26, 2007 that she was "100% disabled due to GM seizure disorder." Tr. 272. She saw Dr. Hankins for seizures again on April 6, 2007. On July 3, 2007, she reported to Dr. Hankins for "seizure disorder" to "demonstrate her need for continued disability." Tr. 259. Dr. Hankins found Merriam lying on the exam table "producing tonic clonic voluntary muscle activity and declining to respond to verbal questions."
She attended therapy sessions somewhat sporadically at Douglas County Mental Health Center from December 2007 to December 2008. She attended either a group or an individual session on 22 occasions during those years, but missed 35 sessions.
Her neurologist, Jerry D. Boggs, M.D., reviewed EEG test results in February 2008 and concluded there was no evidence of seizure activity or epilepsy. Merriam acknowledged "without defensiveness" that she was experiencing pseudoseizures.
Around this time, Frank Lahman, Ph.D., a non-examining agency consultant, reviewed the medical records and concluded Merriam had depression and anxiety, as well as a history of polysubstance abuse and current use of cannabis. He believed she exhibited mild restrictions in her daily living activities, moderate difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence or pace. He recommended Merriam be limited to simple tasks and limited public, coworker and supervisor interactions.
In a physical examination performed by Kurt Brewster, M.D., in September 2008, Merriam reported a seizure disorder since 14 months of age, with treatment since 1998. She reported a head injury in a 2004 car accident, after which her "seizures went out of control." Tr. 353. She reported her doctor took her off her anti-seizure medication in 2007, reporting that her doctor "didn't believe I needed it." Tr. 354. She reported she left her last job because of her seizures. After assessing her physical abilities, Dr. Brewster concluded Merriam could walk about six hours in an eight-hour day, had no restrictions on sitting, and could lift 20 pounds occasionally and ten pounds frequently.
Judith Eckstein, Ph.D., performed a psychodiagnostic evaluation on Merriam in September 2008. Merriam reported taking Seroquel, which improved her mood and made her feel for the first time "somewhat normal since I was a kid." Tr. 367. She reported having obsessive thoughts, worrying, and having panic attacks, and described a history of being both the victim and the perpetrator of violence. She reported she left her last job because of the pain from her 2004 car accident. Dr. Eckstein noted that Merriam appeared to be benefitting from "the proper use of psychotropic medications to help deal with her emotional volatility and agitation." Tr. 368. She diagnosed Merriam with Posttraumatic Stress Disorder, Intermittent Explosive Disorder (Improved with Medication), Personality Disorder NOS with Paranoid and Obsessive-Compulsive Traits, as well as a history of seizures and pseudo-seizures, COPD, asthma, bronchitis, hypertension and restless leg syndrome. She assigned a Global Assessment of Functioning ("GAF") of 50.
In a closing report from Douglas County Mental Health Center on January 28, 2009, Merriam's therapist reported that she was "participating through DHS in a field placement at UCAN. She indicated that her mood symptoms were stable through medication management by PCP and skills learned and was hoping to be able to secure employment through UCAN. Continues to have physical problems with neuropathy. Mental health issues are expected to be ongoing but hopefully can be maintained." Tr. 505. Merriam's "prognosis is fair, provided that medication management through PCP is able to maintain stability of symptoms." Id. At discharge, her primary diagnoses were bipolar disorder with psychotic features and PTSD. At admission, rather than bipolar disorder, she had been diagnosed with major depression. Her therapist reported she was not employed, but seeking work, and that she was "employable." Tr. 507.
In March 2009, Merriam was diagnosed with left ulnar neuropathy, as a result of numbness in her left little and ring fingers. She was counseled about breaking her habit of spending her day with her elbow flexed and pressure on her elbows.
Later that month, Merriam again sought treatment for a seizure, reporting that it had been about one year since her last one. Dr. Hoyne noted the diagnosis of pseudoseizures and her stable vital signs. He educated her on pseudoseizures and Merriam declined a neurological referral.
On January 9, 2010, Dr. Eckstein completed a Mental Residual Functional Capacity form for Merriam, based on her 2008 evaluation. She opined that Merriam was moderately limited in her ability to understand and remember detailed instructions, but was markedly limited in her ability to carry out detailed instructions and maintain attention and concentration. She was moderately limited in performing activities within a schedule, and markedly limited in her ability to sustain an ordinary routine without supervision. She was markedly limited in her ability to work with or around others and to complete a normal workday and workweek without interruptions due to psychological problems. She was markedly limited in her ability to interact with the general public and to accept instruction. She was moderately limited in her ability to respond to changes in the work setting, take precautions of normal hazards, travel to unfamiliar places, and set realistic goals without help from others.
Additionally, on May 4, 2010, Dr. Eckstein responded to the ALJ's unfavorable decision. Dr. Eckstein reported Merriam continued to take psychotropic medications to stabilize her mood, which she said helps with her "loudness and boisterousness." Tr. 675. Merriam had left her position at UCAN, where she had volunteered from November 2008 to June 2009, because she felt "they were very disrespectful to me" when they did not use a project on which she had been working. She continued to smoke marijuana two or three times a day, even though she no longer had a medical marijuana card, as it helped with her appetite when she was in a manic phase. She still had periods of sleeplessness and racing thoughts, and she described herself as being short-tempered frequently. She continued to experience depression and that she does not have much purpose in life. She reported paranoid ideation, although not as strong as in the past. Dr. Eckstein continued to diagnose PTSD, Bipolar II Disorder, Intermittent Explosive Disorder (by History), Panic Disorder with Agoraphobia, Personality Disorder NOS with Paranoid and Obsessive-Compulsive Traits, and again assessed a GAF of 50. After recognizing that the medication was perhaps controlling Merriam's aggressive outbursts, Dr. Eckstein nevertheless opined that Merriam was "likely to exhibit increased anxiety symptoms as well as angry outbursts even with co-worker contact limited to work-related issues." Tr. 676.
Merriam challenges the ALJ's decision for failing to give: (1) clear and convincing reasons for rejecting her testimony; (2) germane reasons for rejecting the lay witness testimony; (3) clear and convincing reasons for rejecting Dr. Eckstein's evaluations; and (4) reasons for finding she could perform "other work" in the national economy.
The ALJ gave Merriam's testimony regarding the intensity, persistence and limiting effects of her symptoms little weight for several reasons. The ALJ first noted Merriam's repeated inconsistent statements: she reported treatment for seizures as a child, and then that her seizures started as an adult; she presented to the ER to "demonstrate her need for continued disability," contending she was experiencing a seizure, but the physician noted no symptoms consistent with seizures; she reported she had been driven to the ER, but treating providers watched her drive herself away. Additionally, the ALJ noted Merriam's continued cigarette and marijuana smoking, while suffering from asthma, against medical advice. Merriam reported attending counseling at Douglas County Mental Health for almost a year, but she called to cancel her appointments more often than she attended. She asserted a seizure disorder as a reason for her inability to work, but she was actually diagnosed with pseudoseizures. Finally, she testified to having some form of bipolar or depression since her teenage years, but her previous jobs did not end as a result of those impairments.
Merriam concedes that "there are some inconsistencies in her reporting[.]" Pl.'s Br. 18. She also agrees that she canceled counseling sessions "a few times," but asserts her treatment "was not insignificant."
When deciding whether to accept the subjective symptom testimony of a claimant, the ALJ must perform a two-stage analysis. In the first stage, the claimant must produce objective medical evidence of one or more impairments which could reasonably be expected to produce some degree of symptom.
The ALJ identified clear and convincing reasons to find Merriam less than credible given her repeated inconsistent statements, the fact that she canceled her therapy sessions (35 sessions) more often than she attended them (22 sessions), thereby undermining her prescribed course of treatment, and that she claimed a seizure disorder as a reason for her inability to work without revealing that the diagnosis was actually pseudoseizures.
Merriam suggests that the ALJ failed to adequately consider the diagnosis of Factitious Disorder, which she says is the reason for her inconsistent statements. As an initial matter, the diagnosis came up on only one occasion by one physician, and the doctor did not repeat the diagnosis when he saw her the next month. Additionally, the disorder would not account for inconsistent statements about her history only exaggerations as to her symptoms.
Merriam's mother testified at the hearing that Merriam worked for her at the hotel, that Merriam missed a lot of work after her car accident, that she was meticulous in her work, that she argued with coworkers, that she hid in her room for one to three days after a manic phase at least once every two weeks, that she had trouble concentrating on one task, and that Merriam left the motel because other employees believed Merriam's mother was "playing favorites" and because her mother was helping Merriam finish tasks. Tr. 54. Merriam's mother believed that Merriam's condition worsened after the car accident that "[s]he started having seizures that she never had before. You know, and blackouts. And then her personality just started changing." Tr. 55.
The ALJ found as follows:
Tr. 19. The ALJ concluded the RFC he crafted accounted for any credible limitations identified by the lay witness.
Lay testimony about a claimant's symptoms is competent evidence which the ALJ must take into account unless he gives reasons for the rejection that are germane to each witness.
Merriam suggests that the ALJ found her mother's testimony to be generally credible, and that, as a result, the ALJ's failure to address all of the limitations identified by her mother was error.
As an initial matter, the ALJ only gave some credit to Merriam's mother's testimony, but otherwise found the majority of the testimony unpersuasive. The germane reason the ALJ gave was that, despite Merriam's mother's testimony to the contrary, the car accident had no connection with Merriam's psychological difficulties. Additionally, the ALJ accounted for many of the problems identified by Merriam's mother in the RFC. First, and most importantly, he concluded Merriam could not perform her past work as a motel desk clerk. Furthermore, because Merriam could not complete tasks at the motel without the help of her mother, Merriam was limited to performing simple, repetitive tasks. Her emotional condition was accounted for by the limitation to unskilled work in an environment with minimal changes, and limited contact with the general public, coworkers, and supervisors. The record amply supports the ALJ's reasoning for only partially accepting Merriam's mother's testimony, and the remainder of her testimony is consistent with the RFC.
The ALJ gave "almost no weight" to Dr. Eckstein's 2010 functional assessment of Merriam. The functional assessment was based on Dr. Eckstein's examination of Merriam two years earlier. At that time, she diagnosed Merriam with PTSD, intermittent explosive disorder, and personality disorder NOS with paranoid and OCD traits. The ALJ opined that the 2010 functional assessment was not supported by the 2008 examination, that the 2008 examination itself was significantly reliant on Merriam's suspect reports, that Dr. Owens spent more time with Merriam and administered formal testing, and that the State agency psychological consultants' findings were most consistent with the record. The ALJ commented that Dr. Eckstein and Dr. Owens came up with different diagnoses and limitations, but that the consistencies between the two opinions were reflected in the RFC.
The weight given to the opinion of a physician depends on whether the physician is a treating physician, an examining physician, or a nonexamining physician. More weight is given to the opinion of a treating physician because the person has a greater opportunity to know and observe the patient as an individual.
Merriam contends that in order to reject Dr. Eckstein's opinion, the ALJ was required to provide clear and convincing reasons. The Commissioner suggests the ALJ's reasoning was "specific, legitimate, clear and convincing[.]" Def.'s Br. 8, 9.
Since Dr. Eckstein's opinion was contradicted by Dr. Lahman, the agency's medical consultant, the ALJ was required to give specific and legitimate reasons for rejecting Dr. Eckstein's opinion.
With respect to concentration, persistence, and pace, since Dr. Eckstein herself specifically referred to Dr. Owens' testing as "more conclusive" and "a better indicator of [Merriam's] ongoing mental functioning," the ALJ's conclusion that Dr. Owens' opinion, and the consistent opinion of Dr. Lahman, was entitled to more weight is a specific and legitimate reason to reject Dr. Eckstein's opinion. Tr. 368. Dr. Owens found Merriam only mildly limited in her ability to maintain attention and concentration for extended periods, and Dr. Lahman found her only moderately limited in this category. Furthermore, Dr. Eckstein based her 2010 opinion on Merriam's statements, made two years earlier, that she experienced difficulty with concentration and short-term memory, but the ALJ properly discounted Merriam's statements; this is a specific and legitimate reason to reject Dr. Eckstein's opinion.
Additionally, Dr. Eckstein's behavioral observations do not support her conclusion that Merriam was markedly limited in her ability to interact with the general public or respond to criticism from a supervisor. For example, Dr. Eckstein noted Merriam was prompt, cooperative, made appropriate eye contact, and had logical and coherent thought processes. She noted Merriam's speech was "rather rushed and accelerated" and that she "appeared somewhat agitated[,]" but also that she "demonstrated no overt signs of distress." Tr. 366. Furthermore, Merriam's mood had improved on Seroquel and she considered herself to be "a pretty happy person." Tr. 366-67. Indeed, Dr. Eckstein found Merriam's mental status to be free from significant problems. An ALJ is not required to accept the opinion of a physician if the opinion is "brief, conclusory, and inadequately supported by clinical findings."
Merriam makes much of Dr. Owens' conclusion that her ability to respond appropriately to co-workers, supervisors and the public is moderately to markedly impaired, suggesting that Dr. Owens' conclusion is not so different from Dr. Eckstein's. I note, however, that Dr. Owens separately found Merriam's ability to relate in her interpersonal relationships was moderately to markedly impaired, but that she had only "mild difficulty interacting with her world and maintaining social functioning." Tr. 669. This latter conclusion supports the ALJ's opinion that Merriam could perform work if she had limited contact with the general public and restricted contact with co-workers and supervisors to work-related issues. Further support is found in Dr. Lahman's opinion, relying on Dr. Owens' findings, that Merriam could perform work if her contact with the general public, coworkers and supervisors was limited, even with moderate difficulties interacting with the general public and getting along with coworkers.
Merriam argues that Social Security Ruling 85-15 directs a finding of disability because even if Merriam exhibited these marked limitations only part of the time, she could not work. Social Security Ruling 85-15 provides that a "substantial loss" in the ability to "respond appropriately to supervision, coworkers, and usual work situations" would justify a finding of disability because it would "severely limit the potential occupational base." SSR 85-15, at *4. The ALJ, however, translated Dr. Owens' opinion of moderate to marked impairment interacting with the general public, supervisors, and co-workers, and mild impairment interacting with her world and maintaining social functioning, into an RFC of limited contact with the general public, and restrictions on her contact with co-workers and supervisors; the RFC is consistent with Dr. Owens' opinion.
Merriam also finds it significant that Dr. Owens assessed a lower GAF (35) than did Dr. Eckstein (50). The GAF score is simply a way to sum up a clinician's overall estimation as to the "psychological, social and occupational functioning of a patient."
Finally, Merriam suggests the VE testified a restriction to co-worker and supervisor contact regarding only "work-related issues" was unrealistic. However, the VE specifically accepted the ALJ's hypothetical, which included such a limitation, and offered several jobs he believed Merriam could perform, including fruit sorter, stuffer, and small parts assembler. Further, although the VE appears to have testified in a somewhat contradictory fashion that it would be "unrealistic" to "only talk[] about work when they're in the work environment," the ALJ did not craft an RFC precluding Merriam from talking about non-work related subjects. Tr. 64. Instead, the RFC targets those jobs where the bare minimum requirement is the ability to interact with co-workers and supervisors on work-related matters.
The ALJ did not err in his treatment of Dr. Eckstein's assessment.
Merriam argues the ALJ did not meet his burden in showing she could perform other work.
I have rejected all of Merriam's arguments with respect to Dr. Eckstein, so I do not accept Merriam's request to credit the doctor's assessment.
Merriam suggests that the ALJ's RFC formulation did not adequately address Dr. Owens' finding of Merriam's "moderate to marked" difficulty responding to supervision, arguing that such a limitation would preclude work. As I indicated above, however, the ALJ's RFC properly accounted for Dr. Owen's opinion.
In addition, I find no legal error in the ALJ's conclusion that, for listing purposes, Merriam has moderate limitations in concentration, persistence or pace, but that she retained the capacity to perform simple repetitive tasks. Dr. Lahman, the agency consultant, found Merriam had moderate difficulties maintaining concentration and attention, but that she could perform simple tasks. Tr. 307. So long as the ALJ's decision is supported by medical evidence, a limitation to simple, repetitive work can account for moderate difficulties in concentration, persistence or pace.
Finally, Merriam suggests that the ALJ's hypothetical was defective because it did not include limitations associated with her ulnar neuropathy. However, after being diagnosed with ulnar neuropathy, Merriam agreed to treat the condition conservatively and she was able to continue using her left arm in lifting and moving furniture. Additionally, the ALJ limited her to carrying 20 pounds occasionally and ten pounds frequently. Merriam does not argue these functional limitations are insufficient to address the condition.
I conclude that the ALJ met his burden of showing Merriam retained the functional capacity to perform other work in the national economy.
The findings of the Commissioner are based upon substantial evidence in the record and the correct legal standards. For these reasons, the court affirms the decision of the Commissioner.
IT IS SO ORDERED.