Opinion
Civ. No. 99-1031, SECTION "LLM" (3).
February 14, 2000.
ORDER AND REASONS
Plaintiff Alton Mosby seeks judicial review pursuant to Section 405(g) of the Social Security Act (the "Act") of the final decision of the Commissioner of Social Security Administration (the "SSA"), which denied his claim for Medicare benefits under Title II of the Act, 42 U.S.C. § 401 et seq., and supplemental security income benefits based on disability ("SSI") under Title XVI, §§ 1602 and 1614(a)(3)(A) of the Act, 42 U.S.C. § 1381(a). Plaintiff and defendant filed timely cross-motions for summary judgment. Record Doc. Nos. 6, 7.
1. PROCEDURAL HISTORY
Mosby applied for Medicare and SSI disability benefits on August 8, 1996, alleging disability since February 15, 1993, because of depression and nervousness. (Tr. 55-58, 197-200). The Commissioner denied his application initially and on reconsideration. (Tr. 43-45, 201-202). Plaintiff requested a hearing before an administrative law judge ("ALJ"), which was held on January 5, 1998. (Tr. 20-40). The ALJ denied Mosby's application on January 21, 1998. (Tr. 10-18). After the Appeals Council denied review on February 5, 1999 (Tr. 5-6), the ALJ's decision became the final decision of the Commissioner for purposes of this Court's review.
2. STATEMENT OF ISSUES ON APPEAL
Plaintiff's request for judicial review raises the following issue: whether the Commissioner erred by failing to find plaintiff disabled under listing 12.04(A3).
3. ALJ'S FINDINGS RELEVANT TO ISSUES ON APPEAL
The Commissioner made the following findings relevant to the issues on appeal:
A. Claimant suffers with a bipolar disorder, well controlled with Lithium. It is being assumed that his mental impairment is more than "non-severe." Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985).
B. Claimant's impairment does not meet or equal the criteria of any impairment in the Listing of Impairments of Appendix 1, Subpart P, Regulations No. 4.
C. Claimant's assertions as to pain, limitations and the complete inability to do work are not substantiated by record evidence and are not credible.
D. Claimant has the residual functional capacity for work at all levels of exertion.
E. Claimant's impairment(s) and residual functional capacity do not preclude him from doing his past relevant work as a letter sorter, distributor and expediter.
F. Claimant has not been under a "disability" as defined in the Social Security Act at any relevant time through the date of this decision.
(Tr. 17-18).
4. ANALYSIS
A. Standards of Review
The function of this Court on judicial review is limited to determining whether there is substantial evidence in the record to support the final decision of the Commissioner as trier of fact and whether the Commissioner applied the appropriate legal standards in evaluating the evidence. Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). Substantial evidence is more than a scintilla but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.Richardson v. Perales, 402 U.S. 389, 401 (1971); Spellman, 1 F.3d at 360. This Court may not reweigh the evidence, try the issues de novo or substitute its judgment for the Commissioner's. Id.;Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
The Commissioner is entitled to make any finding that is supported by substantial evidence, regardless whether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91 (1992). Despite this Court's limited function, it must scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence exists to support it. Villa, 895 F.2d at 1022; Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). Any findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).
To be considered disabled and eligible for DIB, plaintiff must show that she is unable "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 twelve months." 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has promulgated regulations that provide procedures for evaluating a claim and determining disability. 20 C.F.R. § 404.1501 to 404.1599 Appendices, §§ 416.901 to 416.998 (1995). The regulations include a five-step evaluation process for determining whether an impairment prevents a person from engaging in any substantial gainful activity. Id. §§ 404.1520, 416.920; Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); Moore v. Sullivan, 895 F.2d 1065, 1068 (5th Cir. 1990). The five-step inquiry terminates if the Commissioner finds at any step that the claimant is or is not disabled. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The five-step analysis requires consideration of the following:
First, if the claimant is currently engaged in substantial gainful employment, he or she is found not disabled. 20 C.F.R. § 404.1520(b), 416.920(b).
Second, if it is determined that, although the claimant is not engaged in substantial employment, he or she has no severe mental or physical impairment which would limit the ability to perform basic work-related functions, the claimant is found not disabled. Id. §§ 404.1520(c), 416.920(c).
Third, if an individual's impairment has lasted or can be expected to last for a continuous period of twelve months and is either included in a list of serious impairments in the regulations or is medically equivalent to a listed impairment, he or she is considered disabled without consideration of vocational evidence. Id. §§ 404.1520(d), 416.920(d).
Fourth, if a determination of disabled or not disabled cannot be made by these steps and the claimant has a severe impairment, the claimant's residual functional capacity and its effect on the claimant's past relevant work are evaluated. If the impairment does not prohibit the claimant from returning to his or her former employment, the claimant is not disabled. Id. §§ 404.1520(e), 416.920(e).
Fifth, if it is determined that the claimant cannot return to his or her former employment, then the claimant's age, education and work experience are considered to see whether he or she can meet the physical and mental demands of a significant number of jobs in the national economy. If the claimant cannot meet the demands, he or she will be found disabled. Id. §§ 404.1520(f)(1), 416.920(f)(1). To assist the Commissioner at this stage, the regulations provide certain tables that reflect major functional and vocational patterns. When the findings made with respect to claimant's vocational factors and residual functional capacity coincide, the rules direct a determination of disabled or not disabled. Id. § 404, Subpt. P, App. 2, §§ 200.00-204.00, 416.969 (1994) ("Medical-Vocational Guidelines")
The claimant has the burden of proof under the first four parts of the inquiry. Id. If she successfully carries this burden, the burden shifts to the Commissioner to show that other substantial gainful employment is available in the national economy, which the claimant is capable of performing. Greenspan, 38 F.3d at 236;Kraemer v. Sullivan, 885 F.2d 206, 208 (5th Cir. 1989). When the Commissioner shows that the claimant is capable of engaging in alternative employment, "the ultimate burden of persuasion shifts back to the claimant." Id.; accord Selders, 914 F.2d at 618.
The Court "weigh[s] four elements of proof when determining whether there is substantial evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) [her] age, education, and work history." Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995). "The Commissioner, rather than the courts, must resolve conflicts in the evidence." Id.
B. Factual Background
Plaintiff Alton Mosby was 58 years old at the time of the administrative hearing, and testified that he had completed approximately three years of college. He stated he had been working since he was fourteen, and entered the military when he was eighteen or nineteen. He was in the Army from December 30, 1957 until March, 1964, and began working of the post office in 1965 in Los Angeles. Altogether, he claims he has 27 years of federal service. He last worked for the post office in February, 1993. In response to a question from the ALJ as to why he had stopped working, he said that it was partially due to his getting sick, but that he was terminated after being involved in an altercation in which it was determined that he was at fault, although he denied actually being in the wrong. (Tr. 23-28). Since then he has applied for jobs, but aside from some manpower work for a couple of days, he has never been called for any of the jobs for which he applied. Id.
Plaintiff testified that he takes Lithium for his bipolar condition. He became sick around 1968 or 1969, and was hospitalized once in a military hospital and twice in Charity Hospital. He stated that he is not able to work any longer because he is extremely nervous and depressed. (Tr. 28).
C. Medical Evidence
This Court has reviewed the medical records in evidence and the ALJ's summary of the medical evidence (Tr. 14-17), and finds the ALJ's thorough summary of the evidence was substantially correct and incorporates it herein by reference.
Plaintiff maintains that his condition met the requirements of Listing 12.04 (A3) and that he therefor should have been found disabled by the ALJ. Under 20 C.F.R. Pt. 404, Subpt. P, App. 1, the criteria for mental disorders are set forth in relevant part as follows:
12.00 Mental Disorders.
A. Introduction: The evaluation of disability on the basis of mental disorders requires the documentation of a medically determinable impairment(s) as well as consideration of the degree of limitation such impairment(s) may impose on the individual's ability to work and whether these limitations have lasted or are expected to last for a continuous period of at least 12 months.
12.04 Affective Disorders: Characterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome. Mood refers to a prolonged emotion that colors the whole psychic life; it generally involves either depression or elation.
The required level of severity for these disorders is met when the requirements in both A and B are satisfied.
A. Medically documented persistence, either continuous or intermittent, of one of the following:
* * *
3. Bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes (and currently characterized by either or both syndromes) (Emphasis added);
AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Deficiencies of concentration, persistence or pace resulting in frequent failure to complete tasks in a timely manner (in work settings or elsewhere); or
4. Repeated episodes of deterioration or decompensation in work or work-like settings which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms (which may include deterioration of adaptive behaviors).
Plaintiff relies on the reports of Dr. Edward Levy (Tr. 158-160) and Dr. Lester Clayton Culver (Tr. 169-176). As noted by the defendant, Dr. Culver's testing and report was not done until after the hearing, but it was submitted to the Appeals Council as part of his request for review. The Appeals Council did consider the report along with all other submitted evidence, but still concluded there was no basis for granting plaintiff's request for review. (Tr. 5-7).
The ALJ carefully reviewed Dr. Levy's findings, and he called Dr. Brian Jordan, a clinical psychologist, to testify at the hearing regarding the findings of Dr. Levy and Dr. Fe-Borenstein. Dr. Jordan stated that he was at a loss to explain Dr. Levy's findings of a number of "moderate and marked impairments," considering his other findings regarding the plaintiff. Dr. Jordan stated it was well known clinically that Lithium medication controls bipolar disorder, and that a bipolar disorder that's controlled is not an impairment to job functioning. (Tr. 32). It should be noted that Dr. Fe-Borenstein stated that at some point between 1992 and 1993, plaintiff either stopped taking or decreased his medication, which the doctor believed resulted in him getting into a fight and ultimately getting fired from the job. (Tr. 108). The ALJ noted that Dr. Fe-Borenstein had questioned plaintiff's compliance with his medication, which had a direct effect on his mood swings. (Tr. 14).
The ALJ incorrectly noted that claimant's Lithium level was subtherapeutic in December of 1993. (Tr. 14). The level was 1.0; therapeutic levels range from 0.5 to 1.05. (Tr. 121-122). However, the Court finds this to be a minor error and that the ALJ's findings overall were substantially correct.
Subjective complaints must be corroborated by objective medical evidence. Houston v. Sullivan, 895 F.2d 1012, 1016 (5th Cir. 1989). When the medical signs or laboratory findings show that the claimant has medically determinable impairments that could reasonably be expected to produce the alleged symptoms, the Commissioner must evaluate the intensity and persistence of the symptoms, so that he can determine how the symptoms limit the claimant's capacity for work. 20 C.F.R. § 404.1529(c).
A treatable condition which a claimant declines or refuses to treat is not disabling See Johnson v. Bowen, 894 F.2d 683, 685 n. 4 (5*th Cir. 1988) (an individual who fails to follow prescribed treatment will not be found disabled); 20 C.F.R. § 404.1530, 416.930; see also Epps v. Harris, 624 F.2d 1267, 1270 (5th Cir. 1980) (conditions controlled or controllable by treatment are not disabling).
The Commissioner has considerable discretion in assigning weight to medical opinions and is free to reject the opinion of any physician when the evidence supports a contrary conclusion. 20 C.F.R. § 404.1527(d)(2), 416.927(d), (e); Greenspan, 38 F.3d at 237; Spellman, 1 F.3d at 364; Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990). The Commissioner may give less weight to a physician's opinion when the opinion is so brief and conclusory that it lacks strong persuasive weight, is not accepted by medically acceptable clinical or laboratory diagnostic techniques, or is otherwise unsupported by the evidence. Leggett, 67 F.3d at 566; Spellman, 1 F.3d at 364.
In this case, as he is clearly entitled to do, the Commissioner weighed all the medical evidence, including Dr. Levy's report. In essence, he found Dr. Levy's opinion regarding "moderate" and "marked" impairments on the part of plaintiff were not supported by the evidence. "[T]he Act empowers the Commissioner to analyze the physicians' testimony. Substantial evidence supports the ALJ's decision to disregard the physicians' conclusions. That basis is enough to survive our review." Greenspan, 38 F.3d at 237. Moore, 919 F.2d at 905 (citing Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985)). "`[T]he Commissioner is free to reject the opinion of any physician when the evidence supports a contrary conclusion.'" Martinez, 64 F.3d at 176 (quoting Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987)); see also 20 C.F.R. § 404.1527(c)(2) ("If any of the evidence in your case record, including any medical opinion(s), is inconsistent with other evidence or is internally inconsistent, we will weigh all the other evidence and see whether we can decide whether you are disabled based on the evidence we have."). A reading of the ALJ's decision shows that he carefully considered, but ultimately rejected, Dr. Levy's assessment of plaintiff. Moreover, a physician's statement that a patient is disabled does not mean that the patient is disabled for purposes of the Act, because that determination may be made only by the Commissioner. Tamez, 888 F.2d at 336 n. 1; Milam v. Bowen, 782 F.2d 1284, 1287-88 (5th Cir. 1986); Barajas v. Heckler, 738 F.2d 641, 645 (5th Cir. 1984). The Commissioner has sole responsibility for determining a claimant's disability status. Moore, 919 F.2d at 905.
The Commissioner determined that Mosby was able to perform his past relevant work. As noted above, under the five step process, if claimant is found able to do his past relevant work, he is not disabled. See Fn. 1, supra. This Court finds substantial evidence in the record to support the Commissioner's findings.
Dr. Culver's opinion, based on one meeting with plaintiff and his wife after the hearing, was considered by the Appeals Council, which found it was insufficient to provide a basis for granting plaintiff's request for review. This Court agrees. The ALJ's assessment of plaintiff's credibility, and the rest of the medical evidence, amount to substantial evidence supporting the ALJ's decision.
As noted earlier, "[t]he Commissioner, rather than the courts, must resolve conflicts in the evidence." Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995). The Commissioner is entitled to make any finding that is supported by substantial evidence, regardless whether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91 (1992). In accordance with the law, this Court has scrutinized the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence exists to support it. Villa, 895 F.2d at 1022; Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). The Court has determined that there was substantial evidence to support the ALJ's decision.
CONCLUSION
Substantial evidence in the record supports the ALJ's decision that the limitations resulting from Mosby's impairment were not so severe as to be debilitating and that he has the residual functional capacity to perform his past relevant work. Accordingly, IT IS ORDERED that plaintiff's complaint be and is hereby DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 10th day of February, 2000.