United States District Court, W.D. Missouri, Western Division
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
ROBERT E. LARSEN, Magistrate Judge.
Plaintiff Valorie Affandi seeks review of the final decision of the Commissioner of Social Security denying plaintiff's application for disability benefits under Titles II and XVI of the Social Security Act ("the Act"). Plaintiff argues that the ALJ erred in (1) finding plaintiff not credible, (2) giving greater weight to the opinion of Dr. Cowles than Dr. Sheehan, and (3) relying on improper vocational expert testimony. I find that the substantial evidence in the record as a whole supports the ALJ's finding that plaintiff is not disabled. Therefore, plaintiff's motion for summary judgment will be denied and the decision of the Commissioner will be affirmed.
On March 25, 2010, plaintiff applied for disability benefits alleging that she had been disabled since February 9, 2010. Plaintiff's disability stems from paranoia, chronic obstructive pulmonary disease ("COPD"), torn cartilage in her knee, depression, anxiety disorder, and high blood pressure. Plaintiff's application was denied initially. On February 8, 2012, a hearing was held before an Administrative Law Judge. On March 28, 2012, the ALJ found that plaintiff was not under a "disability" as defined in the Act. On February 21, 2013, the Appeals Council denied plaintiff's request for review. Therefore, the decision of the ALJ stands as the final decision of the Commissioner.
II. STANDARD FOR JUDICIAL REVIEW
Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a "final decision" of the Commissioner. The standard for judicial review by the federal district court is whether the decision of the Commissioner was supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales , 402 U.S. 389, 401 (1971); Mittlestedt v. Apfel , 204 F.3d 847, 850-51 (8th Cir. 2000); Johnson v. Chater , 108 F.3d 178, 179 (8th Cir. 1997); Andler v. Chater , 100 F.3d 1389, 1392 (8th Cir. 1996). The determination of whether the Commissioner's decision is supported by substantial evidence requires review of the entire record, considering the evidence in support of and in opposition to the Commissioner's decision. Universal Camera Corp. v. NLRB , 340 U.S. 474, 488 (1951); Thomas v. Sullivan , 876 F.2d 666, 669 (8th Cir. 1989). "The Court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory." Wilcutts v. Apfel , 143 F.3d 1134, 1136 (8th Cir. 1998) (citing Steadman v. Securities & Exchange Commission , 450 U.S. 91, 99 (1981)).
Substantial evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales , 402 U.S. at 401; Jernigan v. Sullivan , 948 F.2d 1070, 1073 n. 5 (8th Cir. 1991). However, the substantial evidence standard presupposes a zone of choice within which the decision makers can go either way, without interference by the courts. "[A]n administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite decision." Id .; Clarke v. Bowen , 843 F.2d 271, 272-73 (8th Cir. 1988).
III. BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS
An individual claiming disability benefits has the burden of proving he is unable to return to past relevant work by reason of a medically-determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A). If the plaintiff establishes that he is unable to return to past relevant work because of the disability, the burden of persuasion shifts to the Commissioner to establish that there is some other type of substantial gainful activity in the national economy that the plaintiff can perform. Nevland v. Apfel , 204 F.3d 853, 857 (8th Cir. 2000); Brock v. Apfel , 118 F.Supp.2d 974 (W.D. Mo. 2000).
The Social Security Administration has promulgated detailed regulations setting out a sequential evaluation process to determine whether a claimant is disabled. These regulations are codified at 20 C.F.R. §§ 404.1501, et seq. The five-step sequential evaluation process used by the Commissioner is outlined in 20 C.F.R. § 404.1520 and is summarized as follows:
1. Is the claimant performing substantial gainful activity?
2. Does the claimant have a severe impairment or a combination of impairments which significantly limits his ability to do basic work activities?
3. Does the impairment meet or equal a listed impairment in Appendix 1?
4. Does the impairment prevent the claimant from doing past relevant work?
5. Does the impairment prevent the claimant from doing any other work?
IV. THE RECORD
The record consists of the testimony of plaintiff; orthopedic surgeon Robert Campbell Thompson, M.D.; neuropsychologist Richard Scott Cowles, Ph.D.; and Sugi Y. Komarov, a vocational expert, in addition to documentary evidence admitted at the hearing and presented to the Appeals Council.
A. ADMINISTRATIVE REPORTS
The record contains the following administrative reports:
The record establishes that plaintiff earned the following income from 1975 through 2011, shown in actual and indexed figures:
Actual Indexed Year Earnings Earnings 1975 $ 1, 217.46 $ 5, 830.63 1976 763.40 3, 420.06 1977 1, 281.37 5, 415.99 1978 540.70 2, 117.26 1979 1, 568.97 5, 649.511980 387.00 1, 278.35 1981 0.00 0.00 1982 3, 068.68 8, 728.98 1983 363.42 985.74 1984 2, 433.38 6, 233.86 1985 5, 771.1114, 180.32 1986 15.00 35.79 1987 956.57 2, 145.811988 1, 027.00 2, 195.86 1989 492.00 1, 011.80 1990 0.00 0.00 1991 0.00 0.00 1992 889.311, 602.74 1993 0.00 0.00 1994 0.00 0.00 1995 0.00 0.00 1996 0.00 0.00 1997 203.14 306.16 1998 9, 722.29 13, 924.13 1999 14, 563.96 19, 757.27
2000 22, 438.01 28, 844.03 2001 23, 324.40 29, 284.85 2002 9, 738.13 12, 105.26 2003 11, 173.57 13, 558.19 2004 9, 373.39 10, 868.57 2005 16, 063.08 17, 967.91 2006 14, 476.90 15, 482.03 2007 3, 278.00 3, 353.41 2008 4, 057.20 4, 057.20 2009 0.00 0.00 2010 360.00 360.00 2011 0.00 0.00 2012 0.00 0.00
(Tr. at 176, 190, 198).
Disability Report - Field Office
On March 25, 2010, S. Allen met face to face with plaintiff and observed that she had no difficulty hearing, reading, breathing, understanding, concentrating, talking, answering, sitting, standing, walking, seeing, writing, using her hands, or coherency (Tr. at 200-201).
Disability Report - Adult
In a Disability Report, plaintiff indicated that she can read and write English, that she weighed 250 pounds, that she completed 12th grade in 1980 but has no specialized job training, trade or vocational school, and that her medications for her mental impairment consisted of Cymbalta (antidepressant) and Valium (anti-anxiety) (Tr. at 203-214).
Function Report - Adult
In a Function Report dated April 1, 2010, plaintiff stated that she watches a lot of television (Tr. at 215-222). Others come to visit her a lot, but she does not have a social life outside of her family. Her impairments affect her ability to lift, squat, bend, stand, walk, sit, kneel, climb stairs, see, remember, complete tasks, concentrate, understand, follow instructions and get along with others. She has no difficulty using her hands, talking or hearing. She can only walk 4 or 5 feet. She does not follow written instructions. As for spoken instructions, "If it is plain and simple, I don't need redirection. But if I have to figure it out I get help." She uses a brace on her knee, and she uses a cane.
B. SUMMARY OF MEDICAL RECORDS
On August 18, 2008, plaintiff's sixth application for supplemental security income and third application for a period of disability and disability insurance benefits were denied initially. This was the case prior to the one currently before me.
On October 16, 2008, plaintiff saw James True, M.D., at Swope Health Services Behavioral (Tr. at 307). Plaintiff said, "I am miserable, but the medicine helps I guess." Dr. True made the following observations: "She is looking for a job, but cannot find one. The jobs are tight now. In addition, she has sort of hooked up with a man who expects her to work, get things done, expects him not to work at all, lazes around and then complains that she is angry for wanting him to put out the trash, do some work, etc.... There is no SI [suicidal ideation] involved." Under mental status exam, Dr. True noted that plaintiff was "mildly anxious." He prescribed Klonopin (treats anxiety) and Cymbalta (antidepressant).
On April 27, 2009, plaintiff saw a nurse practitioner at Swope Health for medication refills (Tr. at 293-294). Plaintiff weighed 264 pounds and her blood pressure was 146/80. She reported neck pain which she rated a 7 out of 10 in severity. She was assessed with hypertension, asthma and obesity. Hydrochlorothiazide was prescribed for hypertension, and samples of Advair were provided to treat plaintiff's asthma. No pain medication was prescribed. Plaintiff was told to diet and exercise.
On July 16, 2009, plaintiff was treated at Swope Health reporting that she had been out of her blood pressure medication for two weeks (Tr. at 291-292). She was experiencing chest pain, anxiety, dizziness and syncope. She reported sleeping 6 to 7 hours per night. Her physical exam was entirely normal including her neck and extremities. She was assessed with hypertension and history of asthma. She was prescribed Maxzide (treats hypertension), Cymbalta (antidepressant), Loratadine (antihistamine), Albuterol (for asthma) and Advair (for asthma).
On July 20, 2009, plaintiff saw Dr. True (Tr. at 290).
SUBJECTIVE: "Looking for work."
OBJECTIVE: The patient got her degree and is looking hard for work, but cannot find one in this economy, however, she is still proud of her degree which she should be struggling to make it, lot of people say negative things and try to keep her down, but she refuses to bend.
MENTAL STATUS EXAM: She is well groomed, pleasant, goal directed in her speech, euthymic and calm.
Dr. True assessed Bipolar I disorder, most recent episode (or current) mixed, unspecified, with a GAF of "about 55". He prescribed Cymbalta (antidepressant) and Klonopin (treats anxiety).
On December 14, 2009, plaintiff saw Dr. True (Tr. at 289, 298). Plaintiff said she was awaiting her disability hearing. "Still anxious and so depressed she can't work. Still with twisted knee. Depressed or can't support self." Plaintiff said Valium (treats anxiety) does not work as well as Klonopin (treats anxiety). She was still anxious. Dr. True performed a mental status exam and noted only that plaintiff was depressed and anxious with no psychosis. He assessed bipolar I disorder, most recent episode (or current) mixed, unspecified and anxiety disorder not otherwise specified. Her GAF was 42. He discontinued Valium and prescribed Klonopin (which had actually been prescribed five months earlier), and he gave plaintiff samples of Cymbalta (antidepressant).
On January 21, 2010, plaintiff saw Dr. True (Tr. at 287-288). The records reflect that plaintiff said she "never got medical records, and never got her degree." She was depressed over having no job, she said she could not work due to depression. She had no suicidal ideation. "Plans failed." She said she was fired from her job, then was "too depressed to go." Dr. True performed a mental status exam and observed that plaintiff was depressed and anxious with no psychosis. He assess bipolar I disorder and generalized anxiety disorder, and he noted a GAF of 42. "Weeping with decreased mood." He told plaintiff to stop taking Klonopin. It appears he prescribed Cymbalta and Valium. "Valium for money issues."
On February 8, 2010, plaintiff's sixth application for supplemental security income and fourth application for a period of disability and disability insurance benefits was denied by an ALJ.
The next day, February 9, 2010, is plaintiff's alleged onset date in the case before me.
On March 8, 2010, plaintiff saw Dr. True (Tr. at 286). "I lost my disability application hearing."
OBJECTIVE: The patient said that the court told her they never received medical records. When she went to our medical records, they told her that I had not written any notes. I showed her in the chart the notes that I indeed had written plus other people. She will go back to her attorney and try to obtain these notes again. She has no side effects from the medications. She likes the Cymbalta and gets it through Swope Care, but has to stay ahead of it. She said, she cannot sleep. When I told her I had given her medicine for sleep, especially the diazepam, she told me she had not been taking it, but agreed to do so. It works wonderfully for her for her sleep, but she does not want to get "addicted." We discussed this at some length.
MENTAL STATUS EXAM: The patient is irritated, depressed and anxious. There is no overt psychosis. Today, she [has] no suicidal ideations.... She has no energy and reports that she is "menopausal."
Dr. True assessed Bipolar I disorder, most recent episode (or current) mixed, unspecified and anxiety disorder not otherwise specified. Her GAF was "about 42." He refilled her Cymbalta and Valium, which was prescribed for insomnia.
On March 16, 2010, plaintiff went to the emergency room at St. Luke's complaining of an exacerbation of her asthma and knee pain (Tr. at 310-320). She denied back pain or difficulty walking. Her physical exam was normal except for wheezing - her back was normal, extremities were normal, and her psychological examination was normal. X-rays of her knee and chest were taken. Her lungs were normal. Mild thoracic degenerative disc disease was noted. Moderately large right knee joint effusion (water on the knee) and degenerative joint disease were observed. She was assessed with asthma exacerbation due to upper respiratory infection, possible bronchitis. She was told to use an Ace bandage for her knee along with ice and over-the-counter Aleve. She was given an antibiotic and a prescription for Lortab and told to use her Albuterol inhaler.
Nine days later, on March 25, 2010, plaintiff applied for supplemental security income for the seventh time and a period of disability and disability insurance benefits for the fifth time, which is the case now before me.
On May 7, 2010, plaintiff saw Dr. True (Tr. at 400). She reported that she was "under too much stress, I cannot sleep." The objective section of this record reads as follows: "The patient states that her life is out of control basically because she thinks she is in an [sic] relationship that has spun out of control. In addition, she does not have much money. Bills come in and so forth. She denies suicidal ideation. She does not know if therapy can help, but eventually wishes to get therapy. I do not assess her as psychotic. There is no delusion or abnormality in her speech process or content, but she is certainly depressed, but not suicidal. She is also slightly anxious. She believes it is the med change we made from Klonopin to Valium was not good and wants to go back to the Klonopin. In addition, she is not sleeping and feels like the medicines have all plateaued." Dr. True assessed bipolar I disorder "by history" and generalized anxiety disorder. Her GAF was "about 48." Dr. True told plaintiff to continue Cymbalta, discontinue the Valium and substitute Klonopin, and he prescribed amitriptyline (antidepressant) for sleep. "I arranged short-term psychotherapy with the director of psychotherapy here at Mental Health Department."
On May 8, 2010, J. Edd Bucklew, Ph.D., a non-examining agency psychologist, reviewed plaintiff's file (Tr. at 323-334). Dr. Bucklew found that plaintiff has mild restriction of activities of daily living; moderate difficulties in maintaining social functioning; and mild difficulties in maintaining concentration, persistence or pace. "Based on the evidence as a whole, claimant may have problems at times performing more demanding tasks, and she would be limited for socially stressful or complex tasks, but she is otherwise able to remember, understand, and complete instructions with usual supervision."
On May 10, 2010, plaintiff underwent an initial assessment for psychotherapy at Swope Health (Tr. at 389-399). Plaintiff reported a lack of motivation to exercise and said she had gained about 40 pounds. "Client ruptured her knee and reports pain in standing.... Client states that she has been more depressed for the past few weeks.... Client states that she stays to herself more - can not work outside the home. Trouble focusing - feels like she is in a trance most of the time, hard to complete household chores [due to "lack of motivation or desire to participate in daily living activities"].... Client reports a history of drug use and may have experienced some delusion as a result." Plaintiff reported a suicide attempt in 2006 by taking sleeping pills. Under employment history, plaintiff said she is not able to control her temper with adults - "it has gotten worse." Plaintiff reported that she completed 12th grade. She reported having used cocaine daily from age 31 to age 34 (i.e., from about 1989 to 1992). She completed inpatient substance abuse treatment in 1993 and had been drug-free for the past 20 years. In a risk assessment, plaintiff reported "no current thoughts or history of attempts" of suicide. She checked the box for "ten or more minor instances" of violent behavior or ...