KENNETH S. McHARGH, Magistrate Judge.
This case is before the Magistrate Judge pursuant to the consent of the parties. (Doc. 14). The issue before the undersigned is whether the final decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Jamie Soto's ("Plaintiff" or "Soto") application for a Period of Disability and Disability Insurance benefits under Title II of the Social Security Act,
For the reasons set forth below, the Court AFFIRMS the Commissioner's decision.
Soto filed an application for a Period of Disability and Disability Insurance benefits on July 19, 2005. (Tr. 30, 84-86). Plaintiff alleged she became disabled on July 15, 2002, due to chronic fatigue and infections, fibromyalgia, depression, ulcers, colitis, and immune deficiency. (Tr. 30, 77). On March 27, 2006, the Disability Determination Service ("DDS")
On November 29, 2006, Plaintiff filed a request for a hearing by an administrative law judge ("ALJ"). (Tr. 67). Prior to the hearing, in April 2008, disability examiner Kathy Davis reviewed the record apparently to determine if an earlier onset date could be established without the need for an administrative hearing. (Tr. 49). She noted that Plaintiff's counsel had submitted a number of additional medical records showing that Plaintiff received treatment for a variety of physical symptoms in the past. (Id.). The examiner concluded that in regard to Plaintiff's alleged onset date, "it seems unlikely that her psychological symptoms became disabling on the date of the consultative exam and an earlier onset is likely. However, it is difficult to establish onset as of her [alleged onset date] of 7/15/02. A fully favorable onset cannot be established and [the] case is being returned for [the] ALJ to determine onset." (Id.).
ALJ Steven Hanekamp convened an administrative hearing on September 5, 2008, to evaluate Soto's application. (Tr. 774-810). Plaintiff, represented by counsel, appeared and testified before the ALJ. (Id). A vocational expert ("VE"), Gene Burkhammer, also appeared and testified. (Id.). During the hearing, the ALJ explained that he was required to make a fresh determination regarding whether Plaintiff was disabled, and could not limit the issue to the appropriateness of an earlier onset date. (Tr. 777-78). Soto's counsel agreed and communicated his client's understanding. (Id.).
On October 30, 2008, the ALJ issued an unfavorable decision, finding Soto was not disabled at any time from July 15, 2002, through the date last insured. (Tr. 30-45, 36, 778). After applying the five-step sequential analysis,
Plaintiff was born on January 18, 1965, and was 42 years old on the date last insured and 43 years old at the time of the administrative hearing. (Tr. 43, 782). As a result, Plaintiff was considered "a younger individual" for Social Security purposes.
In 1999, three years prior to her alleged disability onset date of July 15, 2002, Plaintiff treated with Olga Kovacevic, M.D., after having received diagnoses of chronic fatigue and mild situational depression from physicians at the Cleveland Clinic. (Tr. 683-84). Around the beginning of September 1999, Dr. Kovacevic prescribed 40 mg of Celexa. (Tr. 682-83). By October 27, 1999, Plaintiff reported she was doing well on Celexa, feeling more energetic and alert. (Tr. 681). Dr. Kovacevic's progress note from January 2002 indicated that Plaintiff continued taking the same dosage of Celexa. (Tr. 674).
During the year-and-one-half after her alleged onset date, Plaintiff visited Dr. Kovacevic and other physicians on a number of occasions. (Tr. 662-73). Treatment notes from this period do not discuss Plaintiff's depression. (Id.). Soto did not otherwise seek psychiatric treatment. As of March 20, 2003, Plaintiff was still taking 40 mg of Celexa daily. (Tr. 667).
A number of years later, on January 23, 2006, Plaintiff underwent a one-time consultative psychological examination with Mitchell Wax, Ph.D. (Tr. 579-84). At the time of the examination, Plaintiff had no prior psychiatric hospitalizations or prior psychiatric care, and was not currently undergoing counseling. (Tr. 580). Dr. Wax diagnosed major depression (severe with psychosis) and post-traumatic stress disorder ("PTSD") as a result of being a victim in a bank robbery in 1994. (Tr. 583). He assigned a Global Assessment of Functioning ("GAF") score of 30, representing behavior that is considerably influenced by delusions or hallucinations, serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupations), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). (Id.). Dr. Wax based the GAF score on Plaintiff's self-reports, which Dr. Wax felt demonstrated that she acted in a "grossly inappropriate manner." Soto told Dr. Wax that she was tired all the time, stayed in bed most of the day, could not work, had no friends, and was totally taken care of by her husband, mother-in-law, and sister. (Id.).
As to Plaintiff's functional limitations, Dr. Wax opined that Plaintiff did not have sufficient judgment or reasoning ability, and could not concentrate well enough to live independently. (Tr. 582). Soto could marginally make important decisions concerning her future and could not manage her own funds. (Id.). The psychologist concluded Plaintiff's abilities were significantly impaired in the following areas: relating to others; understanding, remembering, and following instructions; maintaining attention, concentration, and persistence; and withstanding stresses and pressures associated with day-to-day work. (Tr. 582-83).
On February 17, 2006, Andrea Mann, D.O., indicated that Plaintiff's depression was poorly controlled on Celexa and Wellbutrin. (Tr. 400). The doctor recommended trying Cymbalta, continuing Wellbutrin, and following up in three weeks. (Tr. 403). Plaintiff's next visit, however, was not until approximately four months later, on June 23, 2006. (Tr. 396). Treatment notes included no mention of issues with depression. (Tr. 396-99).
On February 24, 2006, state agency reviewing physician Leslie Rudy, Ph.D., conducted a review of Soto's file. (Tr. 5523-55). In the checkbox portion of the Mental Residual Functional Capacity Assessment form, the doctor indicated that Plaintiff was moderately limited in her ability to understand, remember, and carry out detailed instructions, and respond appropriately to changes in the work setting. (Tr. 552-53). Dr. Rudy also opined that Plaintiff was markedly limited in her ability perform activities within a schedule, maintain regular attendance, be punctual, complete a normal workday and workweek without interruptions from psychologically based symptoms, and perform at a consistent pace without unreasonable number and length of rest periods. (Id.).
In her narrative discussion, Dr. Rudy questioned Dr. Wax's opinion on several grounds:
(Tr. 554-55). Nevertheless, Dr. Rudy opined that Plaintiff would be unable to work, explaining:
(Tr. 555). On February 28, 2006, Dr. Rudy clarified that there was insufficient evidence to make the psychological portion of the disability determination from the alleged onset date of July 15, 2002, through January 22, 2006, the day before Dr. Wax's consultative examination. (Tr. 550). The doctor indicated that as of January 23, 2006, Plaintiff did not have the ability sustain attendance at a level that would be tolerated in a typical workplace due to symptoms of somatoform disorder. (Id.).
On March 23, 2006, state agency physician, Joseph Cools, Psy.D., evaluated the record and agreed with the DDS's established onset date. (Tr. 540). He opined that Plaintiff would be incapable of performing simple routine tasks with adequate pace or endurance and would be unable to tolerate normal stress. (Id.).
On October 3, 2006, state agency physician Todd Finnerty, Psy.D., reviewed the evidence and Dr. Rudy's February 24, 2006, assessment. (Tr. 394). Dr. Finnerty affirmed the unfavorable onset date of January 23, 2006. (Id.).
Soto attended a psychiatric evaluation at the Cleveland Clinic with Jerilyn Hagan Sowell, MSN, CS, on May 8, 2007. (Tr. 146-50). At the time of the evaluation, Plaintiff was taking Cymbalta and Wellbutrin, but had never undergone psychiatric therapy. (Tr. 146). Soto denied symptoms of anxiety, but described sleep disturbance, decreased interest, and hopelessness with passive thoughts of death or suicide, but no intent or plan. She also denied any manic episodes and PTSD symptoms. (Id.).
Upon mental status examination, Ms. Sowell described Plaintiff as neat, clean, and appropriately dressed. (Tr. 147). Soto was cooperative with the interview, maintained good eye contact, and was alert and oriented. Plaintiff's speech was normal in rate, tone, and volume; her thought content was logical and goal-directed. Plaintiff exhibited psychomotor retardation and described her mood as "I hate life." However, her affect was appropriate and responsive, and there was no evidence of disturbance in thought perception or progression. Soto's memory was fair, and she was able to recall 3 out of 3 objects after 5 minutes. Plaintiff's concentration was good, as she was able to calculate "serial 7s," and her abstract reasoning was good. Her insight and judgment were adequate. Lillian Gonsalves, M.D., discussed the results of the examination with Ms. Sowell and diagnosed mood disorder and major depressive disorder, severe with psychotic symptoms. Dr. Gonsalves assigned a GAF score range of 42-50-41, representing serious symptoms (e.g., suicidal ideation) or any serious impairment in social or occupational functioning (e.g., no friends, unable to keep a job). Dr. Gonsalves did not change Plaintiff's current psychotropic medication regime and recommended pain management. (Id.).
On September 26, 2007, Edward Covington, M.D., evaluated Soto at a pain management center. (Tr. 137-41). Plaintiff had multiple complaints of pain throughout her body, but told Dr. Covington that she felt the chronic pain program may not be possible due to her schedule with her children, who were 12 and 5 years old. (Tr. 137). Nevertheless, Plaintiff reported that her social, work in the home, and recreational activities were severely impaired, and she reclined 16 hours out of the day. (Tr. 138). She recounted a history of various encounters with physicians and her frustration with medical providers' inability to discover what was causing her problems, which included fatigue, pain, and weakness. (Id.). Plaintiff reported symptoms of sadness, depression, loss of interest and energy, and feelings of worthlessness and hopelessness. She had a "don't care attitude," and her objective was to "get through the day and take care of my children." (Id.).
Based on a mental status examination, Dr. Covington described Soto as alert, cooperative, and pleasant. (Tr. 139). Her eye contact was good, though her affect was depressed. Soto's speech was spontaneous, fluent, and coherent; her thoughts were logical without any delusional thinking or hallucinations; her judgment and insight were good; her attention and concentration were normal; and she was well-oriented. (Id.). Dr. Covington recommended daily treatment in the chronic pain rehabilitation program for approximately three weeks with goals of pain reduction, functional restoration, mood normalization, improved coping, and vocational rehabilitation. (Tr. 140). The doctor felt that Plaintiff's prognosis was good. (Id.).
The ALJ made the following findings of fact and conclusions of law:
(Tr. 32-45) (internal citations omitted).
A claimant is entitled to receive Disability Insurance and/or Supplemental Security Income benefits only when she establishes disability within the meaning of the Social Security Act. See
Judicial review of the Commissioner's benefits decision is limited to a determination of whether, based on the record as a whole, the Commissioner's decision is supported by substantial evidence, and whether, in making that decision, the Commissioner employed the proper legal standards.
The Commissioner's determination must stand if supported by substantial evidence, regardless of whether this Court would resolve the issues of fact in dispute differently or substantial evidence also supports the opposite conclusion.
Plaintiff takes issue with the ALJ's treatment of opinions issued by state agency reviewing psychologists Drs. Rudy, Cools, and Finnerty. In February 2006, Dr. Rudy opined that Plaintiff did not have the ability to sustain attendance at a level that would be tolerated in a typical workplace as of January 23, 2006. (Tr. 550). During March 2006, Dr. Cools concluded that Soto would be incapable of performing simple routine tasks with adequate pace or endurance, and would be unable to tolerate normal stress, as of January 23, 2006. (Tr. 540). Finally, in October 2006, Dr. Finnerty reviewed the evidence and affirmed the unfavorable onset date of January 23, 2006. (Tr. 394). Plaintiff asserts that the ALJ failed to name these psychologists in his opinion and any analysis provided is insufficient to meet the requirements set out in Social Security Ruling 96-8p and 20 C.F.R. § 404.1527.
It is well-established that for an ALJ's decision to stand, the ALJ is not required to discuss every piece of evidence in the record.
In the present case, Plaintiff correctly argues that the ALJ did not name the three state agency reviewing psychologists or indicate the weight assigned to their opinions. The ALJ provided the following discussion regarding opinions from the Disability Determination Service ("DDS"):
(Tr. 36) (emphasis added). Toward the beginning of this discussion the ALJ focused on disability examiner Kathy Davis's April 2008 finding regarding Plaintiff's alleged onset date. (Tr. 49). Yet, it is unclear who the ALJ referred to as he continued to discuss the "DDS" in the italicized portion of the above quoted passage. The ALJ may have intended to reference any, or a combination of, the following findings issued by state entities: Davis's opinion (Tr. 49), the March 2006 decision approving Plaintiff's application for benefits as of the date of the CE (Tr. 77), or the three state agency reviewing psychologists' conclusions that Plaintiff was disabled as of the date of the CE. (Tr. 394, 540, 550).
Despite this lack of clarity, and the ALJ's failure to strictly comply with the applicable ruling and regulation, the Court finds any error that may exist involving the reviewing psychologists is not reversible. Reviewing physicians' opinions are due, if anything, less deference than treating physicians' opinions, and thus the same standards may be applied.
To begin, throughout his analysis of Plaintiff's mental RFC, the ALJ discussed a number of factors that were inconsistent with the reviewing psychologists' findings of disabling limitations, as well as, a finding of disability any time during the period which Plaintiff claims mental impairments rendered her disabled. For instance, the ALJ explained:
The ALJ's decision, as recounted above, highlights that Plaintiff did not undergo significant mental health treatment at any point in the record: she was not referred to and never attended mental health therapy, was never hospitalized, and her prescriptions for psychotropic medications remained relatively stable and apparently helped manage her depression. Additionally, Plaintiff chose not to pursue pain management. Following Dr. Wax's consultative examination, the results of two mental status examinations revealed largely normal findings and demonstrated Plaintiff's logical thinking and coherent speech, good judgment and insight, and normal attention and concentration. The evidence discussed by the ALJ undermines the serious limitations recommended by the state agency psychologists, such as Dr. Rudy's conclusion that Plaintiff could not maintain attendance and Dr. Cools' conclusion that Plaintiff could not maintain pace or tolerate normal stress due to her mental impairments.
Additionally, the ALJ questioned the probative value of evaluators' opinions regarding disability when they lack access to the complete medical record. (Tr. 36). The three reviewing psychologists conducted their reviews toward the beginning of 2006. As a result, none assessed the record which developed until the ALJ rendered his opinion in October 2008. Although there is not a significant amount of evidence relating to Plaintiff's mental health, the majority of such evidence developed after the state agency psychologists' formulated their opinions, which were based on a only few notes from Soto's general physicians and Dr. Wax's CE report. Importantly, these psychologists did not review the results of Soto's later mental status examinations, which revealed largely normal mental functioning and generally unremarkable symptoms.
Overall, the ALJ's mental residual capacity functioning is supported by substantial evidence. While physicians may opine about the claimant's ability to work, the ultimate responsibility for determining the claimant's RFC lies with the ALJ.
Plaintiff alleges that the RFC is flawed because it was based on no medical source opinion and cites
Plaintiff argues that her GAF scores were indicative of very severe mental impairments such that the ALJ could not have formulated the RFC without further medical opinion evidence. Soto asserts that Dr. Wax assigned a GAF score of 30, while Dr. Gonsalves assigned a GAF of 42. (Tr. 148, 583). However, as the ALJ explained, Dr. Wax's GAF score was largely based on Plaintiff's subjective complaints rather than objective medical findings. (Tr. 37, 583). As to Dr. Gonsalves, the ALJ correctly observed the doctor did not indicate what point in time the GAF reflected Plaintiff's functioning or whether the GAF would permanently remain at this level. (Tr. 38, 148). Further, despite assigning a GAF score that represented serious mental health issues, Dr. Gonsalves did not recommend psychiatric care, but only pain management. (Id.). Both Drs. Wax and Gonsalves's GAFs are largely incongruent with the remainder of the medical evidence, which does not support such extreme functional impairment. Additionally, the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders ("DSM") no longer includes the GAF score.
For the foregoing reasons, the Magistrate Judge finds that the decision of the Commissioner is supported by substantial evidence. Accordingly, the final decision of the Commissioner is AFFIRMED.
IT IS SO ORDERED.
