Opinion
Civil Action No. 03-800-GMS.
September 27, 2004
MEMORANDUM
I. INTRODUCTION
Carlen McManus, the plaintiff, applied for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Title II and XVI, respectively, of the Social Security Act on September 20, 2001. Title II, 42 U.S.C. §§ 401-433 (2003); Title XVI, 42 U.S.C. §§ 1381- 1383f (2003). In her application, she claimed she had been disabled since November 1, 1998, due to severe depression, as well as a number of physical ailments, including migraine headaches, irritable bowel syndrome and diabetes. Her application was denied on November 16, 2001, and a gain upon reconsideration on September 20, 2001. McManus requested a hearing before an Administrative Law Judge. She presented her case on January 8, 2003, before ALJ Pace. Following the hearing, ALJ Pace issued an unfavorable written opinion on February 24, 2003. McManus requested a review of the decision. The Appeals Council denied her request on July 28, 2003.
This is the plaintiff's second set of unsuccessful applications for benefits. ( McManus v. Barnhart, Civ. No. 01-791-GMS (D. Del.)). Her previous claim was denied initially and upon reconsideration. Administrative Law Judge ("ALJ") Pace rendered an unfavorable opinion and the Appeals Council denied McManus' request for review. McManus appealed the adverse decision to this court, which found that the ALJ's denial of benefits was supported by substantial evidence. The court denied the plaintiff's motion for summary judgment and granted summary judgment in favor of the Commissioner of Social Security Administration (the "Commissioner").
Having exhausted her administrative remedies, McManus filed a complaint with the court on August 8, 2003. (D.I. 1.) The Commissioner timely answered on October 10, 2003. (D.I. 8.) McManus moved for summary judgment on March 22, 2004 (D.I. 13), and the Commissioner cross-moved for summary judgment on April 26, 2004, (D.I. 16). Because the court finds that the ALJ's denial of benefits was supported by substantial evidence, the court will deny the plaintiff's motion and grant summary judgment in favor of the Commissioner.
II. BACKGROUND
McManus is a 40-year-old woman with a high school education. Her past work experience includes employment as an office clerk. (D.I. 9 at 183.) On November 1, 1998, McManus alleged an onset of disability due to major depression, constant migraine headaches, back pain, irritable bowel syndrome, diabetes mellitus, recurring urinary tract infections, ulcers and colitis. (Id.) In January 2000, she attempted to return to work, part-time with fewer job responsibilities. On October 6, 2000, she was fired for poor attendance. (Id. at 184, 269-70.)
A. Medical History
In October 1992, McManus was hospitalized with acute pyelonephritis of the right kidney and severe flank pain. (Id. at 184.) She was again hospitalized in August 1997 with depression and suicidal ideation. (Id.) Most recently, McManus was hospitalized from April 6, 2000 to April 13, 2000, with major depression and suicidal ideation. (Id.) At that time, she was able to perform concentration tests, her attention span was satisfactory and there was no memory impairment. (Id.) She was discharged on multiple medications and was referred to a partial hospitalization program. (Id.)
Records from Dr. Jose M. Gueco, dated October 28, 1998 to September 14, 2000, reflect that McManus complained of right flank pain and was diagnosed with a urinary tract infection. (Id. at 184, 351-71.) On February 22, 2001, Dr. Richard I. Zamarin conducted an EMG on McManus which showed evidence of minor right carpal tunnel syndrome. (Id. at 184, 430-31.) An upper endoscopy and colonoscopy on May 22, 2001, revealed gastroesophageal reflux. Dr. Ruffini, a board-certified internist, advised that McManus had irritable bowel syndrome. (Id. at 184, 432-33.) Records from Dr. Jose D. Manalo, dated June 12, 2001 and October 5, 2001, reflect that McManus was on insulin for diabetes and that she took antidepressant medication. (Id. at 185, 337-347.) She also had migraine headaches and was obese. (Id.)
On January 14, 2003, McManus was examined by Dr. Aydin Z. Bill, her treating psychiatrist since 1997. (Id. at 185, 193-98.) Dr. Bill rated her global assessment of functioning ("GAF") at 55, and noted that her signs and symptoms included sleep disturbance, emotional lability, social withdrawal or isolation, decreased energy, difficulty concentrating, and a history of suicidal ideation. (Id. at 185-86, 193-98.) Dr. Bill further concluded that McManus was seriously limited in her ability to understand, remember and carry out simple job instructions, work with others without being unduly distracted, and complete a normal work day and work week without interruptions from psychologically based symptoms. (Id.)
B. McManus' Testimony
McManus failed to appear at the ALJ hearing due to illness, so her testimony was taken by telephone. (Id. at 186, 199-220.) She testified that she had been fired from her last job because she had accumulated a number of absences due to depression and migraine headaches. (Id. at 186, 203.) She further stated that she suffered from diabetes, chronic kidney problems, muscle spasms in her back, irritable bowel syndrome, and side effects from her medications, including fatigue, dizziness, agitation and lightheadedness. (Id. at 186-87, 200-20.) Additionally, she had monthly appointments with a psychiatrist to treat depression, paranoia, and because has both difficulty getting along with others and difficulty with memory and concentration. (Id.) She is rarely able to leave the house or perform daily chores. (Id. at 186-89, 210-12.)
C. Vocational Expert Testimony
At the hearing, ALJ Pace asked vocational expert, Lori Cowan, whether a person of McManus' age, education, and with her ailments would be able to perform jobs with low-stress, simple routine, little decision making, minimal interaction with the public and co-workers, and a bathroom in close proximity. (Id. at 221.) Cowan responded that there are jobs that a person with McManus' limitations could perform, such as an information clerk, a security monitor, or a production inspector grader. (Id. at 222-23.) She also stated that there were approximately 265,500 jobs of this nature in the national economy and approximately 775 jobs of this nature in the Wilmington-Newark metro area. (Id.) Upon cross examination by McManus' counsel, Cowan acknowledged that McManus' alleged limitations, for example, that she must lie down frequently due to migraine headaches and be absent from work several days a month, would compromise her possibility for employment. (Id. at 223.) Cowan stated that if the court deemed McManus credible, "she would be unemployable primarily due to severe pain causing difficulty concentrating on a sustained physical or mental activity" because generally an individual cannot have more than an average of one unexcused absence per month. (Id.)
D. ALJ's Findings
ALJ Pace found that although McManus' complaints seemed generally credible, they were not fully corroborated by objective medical evidence. (Id. at 190.) In particular, ALJ Pace stated:
Dr. Bill, the claimant's treating psychiatrist, advised in January 2003 that the claimant had only moderate symptoms (i.e., a GAF of 55). He further noted that the claimant was taking multiple medications, with no medication side effects. On an attached questionnaire, however, the physician advised that the claimant could be expected to be absent from work due to her impairments or treatment more than three times a month, that she had frequent deficiencies of concentration, persistence and pace, and that she had had continual episodes of deterioration or decompensation in work or work like settings. Consistent with these statements, he also advised that the claimant had poor or no capacity to maintain regular attendance, and to complete a normal work day and work week without interruptions from psychologically based symptoms. If these statements were true, the claimant would be unable to sustain any type of substantial gainful activity.
Pursuant to sections 404.1527 and 416.927 of Regulations Nos. 4 and 16, and Social Security Ruling 96-2p, a treating physician's opinion may be given controlling weight only if the opinion is both well-supported by medically acceptable clinical and laboratory diagnostic techniques, and not inconsistent with the other substantial evidence of record in Dr. Bill's own statements that the claimant had a current GAF of 55 and a highest GAF in the past year of 55, indicating only moderate symptoms ([Diagnostic and Statistical Manual of Mental Disorders — Fourth Edition]). Moreover, Dr. Bill further advised that the claimant was not precluded from understanding, remembering and carrying out simple job instructions, sustaining an ordinary routine without special supervision, performing at a consistent pace without an unreasonable number and length of rest periods, asking simple questions and requesting assistance, getting along with coworkers or peers without unduly distracting them, and responding appropriately to changes in the work setting. [I] found these statements, too, to be inconsistent with the conclusions, stated above, that she had frequent deficiencies of concentration, persistence and pace, and that she could be expected to be absent from work due to her impairments or treatment more than three times a month. Accordingly, [I do] not find Dr. Bill's opinion to be controlling, pursuant to the standard above.
(Id. at 191.)
Given Dr. Bill's inconsistency, ALJ Pace favored the testimony of the vocational expert. Thus, he concluded that McManus did not qualify for disability because there were a number of jobs she was capable of performing. (Id. at 191-92.) McManus argues before this court that ALJ Pace erred by rejecting the opinion of Dr. Bill, McManus' treating psychiatrist. (D.I. 14 at 1.)
III. STANDARD OF REVIEW
A reviewing court must uphold the Commissioner's factual determinations if they are supported by "substantial evidence." 42 U.S.C. §§ 405(g), 1383(c)(3); Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992); see also Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (stating "[w]here the ALJ's findings of fact are supported by substantial evidence, . . . [the court is] bound by those findings, even if . . . [it] would have decided the factual issue differently"). "Substantial evidence" means more than "a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The inquiry is not whether the reviewing court would have made the same determination, but rather, whether the Commissioner's conclusion was reasonable. See Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). Thus, substantial evidence may be slightly less than a preponderance. See Hanusiewicz v. Bowen, 678 F. Supp. 474, 476 (D.N.J. 1988).
The Social Security Act defines "disability" as the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(A). The Commissioner has promulgated regulations for determining disability by application of a five-step sequential analysis. See 20 C.F.R. § 404.1520. The ALJ, the reviewing Appeals Council, and the Commissioner evaluate each case according to this five-step process until a finding of "disabled" or "not disabled" is obtained. See id. at § 404.1520(a). The process is summarized as follows:
1. If the claimant currently is engaged in substantial gainful employment, he will be found "not disabled."
2. If the claimant does not suffer from a "severe impairment," he will be found "not disabled."
3. If the severe impairment meets or equals a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 and has lasted or is expected to last for a continuous period of at least twelve months, the claimant will be found "disabled."
4. If the claimant can still perform work he has done in the past ("past relevant work") despite the severe impairment, he will be found "not disabled."
5. Finally, the Commissioner will consider the claimant's ability to perform work ("residual functional capacity"), age, education and past work experience to determine whether or not he or she is capable of performing other work in the national economy. If he or she is incapable, a finding of disability will be entered. Conversely if the claimant can perform other work, he will be found "not disabled."See Cunningham v. Apfel, No. 00-693, 2001 WL 1568708, at *4 (D. Del. Dec. 7, 2001) (paraphrasing the five-step process for determining disability).
The disability determination analysis involves a shifting burden of proof. See Wallace v. Secretary of Health Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983). In the first four steps of the analysis, the burden is on the claimant to prove every element of his or her claim by a preponderance of the evidence. At step five, however, the burden shifts to the Commissioner to prove that there is some other kind of substantial gainful employment the claimant is able to perform. See Sykes v. Apfel, 228 F.3d 259, 263 (3d Cir. 2000); see also Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987); Olsen v. Schweiker, 703 F.2d 751, 753 (3d Cir. 1983). Substantial gainful employment is defined as "work that — (a) involves doing significant and productive physical or mental duties; and (b) is done (or intended) for pay or profit." 20 C.F.R. § 404.1510. When determining whether substantial gainful employment is available, the ALJ is not limited to consideration of the claimant's prior work, but may also consider any other substantial gainful activity which exists in the national economy. See 42 U.S.C. § 423 (d)(1)(A), (2)(A); Heckler v. Campbell, 461 U.S. 458, 460 (1983). Furthermore, a treating physician's opinion must be "well supported by medically acceptable clinical and laboratory diagnostic techniques and not be inconsistent with other substantial evidence of record." 20 C.F.R. § 404.1527 (d)(2). Thus, an ALJ may reject a treating physician's opinion on the basis of contradictory medical evidence. Plummer v. Apfel, 186 F. 3d 422, 429 (3rd Cir. 1999).
IV. DISCUSSION
McManus contends that the ALJ's finding is not supported by substantial evidence because ALJ Pace incorrectly rejected McManus' treating physician's assessment. Specifically, she argues that there is no contrary medical evidence to rebut Dr. Bill's report and that ALJ Pace substituted his lay opinion for the medical opinion of experts. (D.I. 14 at 5.)
However, the record reveals that Dr. Bill's report was inconsistent in his evaluation of McManus. Dr. Bill assessed the plaintiff as having no useful ability, or a seriously limited ability, to perform every specific mental task relevant to performing unskilled work. (D.I.9 at 596.) But as ALJ Pace concluded, these findings were inconsistent with Dr. Bill's opinion that McManus had a GAF score of 55. (Id. at 190-91, 593.) A GAF score in the range of 51-60 is indicative of only moderate psychological impairments. (Id. at 190-91.) Moreover, Dr. Bill advised that the plaintiff was not precluded from understanding, remembering and carrying out simple job instructions, sustaining an ordinary routine without special supervision, performing at a consistent pace without an unreasonable number and length of rest periods, getting along with coworkers, and responding appropriately to changes in work setting. (Id. at 596.) In essence, although Dr. Bill concluded that McManus' illness prevented her from maintaining employment, he also rated her as having only moderate symptoms that did not interfere with her ability to function in a workplace environment. The record also contains other evidence that contradicts Dr. Bill's conclusion. For instance, although McManus was hospitalized in April 2000 with depression, she was able to perform concentration tests, her attention span was satisfactory, and there was no evidence of memory impairment. (D.I. 9 at 184, 400.)
Based on the evidence in the record tending to discredit Dr. Bill's findings, coupled with the vocational expert's testimony that McManus retains the ability to work, a reasonable mind could certainly reach the same conclusion as ALJ Pace.
V. CONCLUSION
Therefore, the court finds that the inconsistent testimony of Dr. Bill, the medical history reports, and the testimony of the vocational expert combine to make the requisite showing of substantial evidence. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Thus, the court will grant the Commissioner's motion for summary judgment, and deny McManus' motion for summary judgment.
ORDER
IT IS HEREBY ORDERED that:
1. The plaintiff McManus' motion for summary judgment (D.I. 14) is DENIED.
2. The defendant Commissioner's motion for summary judgment (D.I. 17) is GRANTED.
3. Judgment is hereby ENTERED in favor of the Commissioner on all claims pending against her.