Opinion
CIVIL ACTION No. 02-2313-GTV
May 27, 2003.
MEMORANDUM AND ORDER
Plaintiff Marjorie E. Weiderholt brings this action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3) and D. Kan. Rule 83.7, seeking judicial review of the decision of the Commissioner of Social Security ("Commissioner") to deny her applications for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act. Plaintiff claims that she is impaired by carpal tunnel syndrome, degenerative disc disease, fibromyalgia, depression, anxiety, confusion, memory problems, fatigue, and sleep disturbance. She has a high school education and her past work experience includes employment as an injection mold machine operator, cashier, stocker, clothing folder, packer, moving company packer, and prep cook.
This appeal focuses on the Commissioner's determination that Plaintiff's depression, anxiety, memory problems, and confusion (collectively referred to as "depression" or "mental impairments/limitations") were not disabling. Plaintiff contends that the Commissioner (1) improperly determined that her depression had not lasted for twelve months; (2) failed to adequately develop the record; and (3) asked the vocational expert an inadequate hypothetical question. For the reasons set forth below, the court affirms the Commissioner's decision.
I. Procedural Background
In February 2000, Plaintiff filed applications for disability insurance benefits and supplemental security income benefits, claiming disability since December 7, 1998. The applications were denied both initially and upon reconsideration. At Plaintiff's request, an administrative law judge ("ALJ") held a hearing on August 21, 2001. After the hearing, the ALJ had Plaintiff engage in a consultative examination regarding her mental and fibromyalgia impairments. Plaintiff saw David R. Mouille, Ph.D., on September 25, 2001. A second ALJ held another administrative hearing on January 8, 2002, at which Plaintiff and her counsel were present. At that time, Plaintiff amended her alleged disability onset date to March 1, 1998. On February 4, 2002, the second ALJ rendered a decision in which he determined that Plaintiff was not under a "disability" as defined by the Social Security Act. After the ALJ's unfavorable decision, Plaintiff requested review by the Appeals Council. The Appeals Council denied Plaintiff's request for review on May 8, 2002, rendering the ALJ's decision the final decision of the Commissioner.
II. Standard of Review
The Commissioner's findings are binding on this court if supported by substantial evidence. 42 U.S.C. § 405(g); Dixon v. Heckler, 811 F.2d 506, 508 (10th Cir. 1987). The court's review is limited to determining whether the Commissioner's decision is supported by substantial evidence in the record and whether the Commissioner properly applied relevant legal standards. Marshall v. Chater, 75 F.3d 1421, 1425 (10th Cir. 1996) (citing Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994)). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Castellano, 26 F.3d at 1028 (citations and internal quotation marks omitted). The court may not reweigh the evidence or substitute its judgment for that of the ALJ or the Commissioner. Hamilton v. Sec'y of Health Human Servs., 961 F.2d 1495, 1500 (10th Cir. 1992).
III. The ALJ's Findings
In his February 4, 2002 decision, the ALJ made the following findings of fact:
1. Claimant meets the nondisability requirements for a Period of Disability and Disability Insurance Benefits set forth in Section 216(i) of the Social Security Act and is insured for benefits through the date of this decision.
2. Claimant has not engaged in substantial gainful activity since the alleged onset of the disability.
3. Claimant has an impairment or a combination of impairments considered "severe" based on the requirements in the Regulations 20 C.F.R. § 404.1520(b) and 416.920(b).
4. These medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4.
5. The undersigned finds claimant's allegations regarding her limitations are not credible for the reasons set forth in the body of the decision.
6. The undersigned has carefully considered all of the medical opinions in the record regarding the severity of claimant's impairments ( 20 C.F.R. § 404.1527 and 416.927).
7. Claimant has the following residual functional capacity: She is limited to light, physically non-stressful job tasks with no lifting of more than ten pounds with her right upper extremity. She also cannot perform repetitive gripping, grasping, or overhead activity with her right dominant upper extremity. Mentally, she is limited to simple, unskilled job tasks.
8. Claimant is unable to perform any of her past relevant work ( 20 C.F.R. § 404.1565 and 416.965).
9. Claimant is a "younger individual between the ages of 18 and 44" ( 20 C.F.R. § 404.1563 and 516.963).
10. Claimant has a "high school (or high school equivalent) education" ( 20 C.F.R. § 404.1564 and 416.964).
11. Claimant has no transferable skills from any past relevant work and/or transferability of skills is not an issue in this case ( 20 C.F.R. § 404.1568 and 416.968).
12. Claimant has the residual functional capacity to perform a significant range of light work ( 20 C.F.R. § 416.967).
13. Although claimant's limitations do not allow her to perform the full range of light work, using section 202.20 of the Medical-Vocational Rules as a framework for decision-making, there are a significant number of jobs in the local and national economies that she could perform. Examples of such jobs include work as duplicating machine operator, pressing machine operator, and surveillance systems monitor.
14. Claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision (C.F.R. § 404.1520(f) and 416.920(f)).
IV. Discussion
A. Improper Consideration of the Duration of Plaintiff's Depression
Plaintiff first claims that the ALJ erroneously made the determination that Plaintiff's depression was not disabling based on an isolated and irrelevant statement by Dr. Mouille that Plaintiff's "[d]epression [was] expected to ameliorate within one year." Plaintiff claims that the ALJ should have determined that her depression was of such severity that it met or equaled section 12.04 of the Listing of Impairments. The court disagrees.
In September 2001, Dr. Mouille examined Plaintiff after the first ALJ involved in this case determined that he needed more information regarding Plaintiff's alleged depression. Dr. Mouille's opinion is the only evidence in the record regarding Plaintiff's mental limitations aside from Plaintiff's and her husband's testimony, which the ALJ found not credible. Plaintiff has not appealed the ALJ's credibility findings.
Dr. Mouille opined that Plaintiff suffered from major depression and that her current level of functioning was GAF 40, which indicates "[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood." American Psychiatric Association, Diagnostic Manual of Mental Disorders 32 (4th ed. 1997). Dr. Mouille also opined that Plaintiff was unable to manage her own funds and that she was impaired in her ability to engage in the following activities: (1) performing activities of daily living (a "very significant" impairment); (2) establishing and maintaining adequate relationships with co-workers and supervisors; (3) understanding and performing simple tasks in an average amount of time; (4) concentrating, persisting and pacing; and (5) maintaining an adequate work schedule with average performance demands. Finally, Dr. Mouille marked "yes," in response to a question that read, "Do you expect the patient to be able to manage funds in the future (for example, the patient is temporarily unconscious)?" When asked to explain his answer, he wrote, "Depression expected to ameliorate within one year."
In order to meet or equal Listing 12.04, Plaintiff must show that the severity of her depression met or equaled Listing 12.04 for twelve or more months. Plaintiff argues that the ALJ primarily based his determination of non-disability on Dr. Mouille's "amelioration" statement, which was in response to a very specific question about Plaintiff's ability to manage funds. Plaintiff also claims that the ALJ ignored contrary evidence in the record regarding the duration of Plaintiff's depression. Plaintiff contends that there is substantial evidence suggesting that Plaintiff had been severely depressed for many months prior to the time she saw Dr. Mouille. Plaintiff largely bases her argument on her own comment in the January 8, 2002 hearing that she "started being that way [(depressed)] when [she] had pain." Rationalizing that she has had pain since at least August 1998, Plaintiff concludes that she must have been suffering from severe depression well before September 2001. Plaintiff also points out that she was prescribed antidepressant medication in September 2000 and that she and her husband testified in the administrative hearing about numerous mental lapses (i.e., forgetting she was cooking eggs and starting a fire in the kitchen, forgetting to pick up her children, and getting lost on short trips) that occurred before January 2002. Plaintiff acknowledges that she does not know the dates the mental lapses occurred.
The ALJ explained his decision as follows:
[T]here is very little evidence documenting the severity of claimant's depression, which was first diagnosed in a September 2001 consultative examination by Dr. D. Mouille, who concluded that claimant suffered marked and extreme functional restrictions due to depression. Moreover, there are no other reports or evaluations documenting this degree of impairment, and no evidence of any significant treatment for this condition other than low dosage Amitriptyline prescribed by a family physician. Given the degree of restriction opined by Dr. Mouille, one would expect much more aggressive treatment. In addition, after completing the evaluation, Dr. Mouille offered the opinion that her "Depression [is] expected to ameliorate within one year." Thus, it is clear that Dr. Mouille believes that claimant's depression will not be disabling for a continuous period of not less than twelve months, and therefore, would not meet the definition of disability. In addition, Mr. Mouille states in his report that claimant suffered from thoughts of suicide, thoughts which claimant has denied, which draws into question the accuracy of the information relied upon by Dr. Mouille in his report.
After reviewing the record, the court concludes that the ALJ's decision is supported by substantial evidence. The record simply is devoid of any evidence other than Plaintiff's and her husband's testimony that Plaintiff was unable to engage in any substantial gainful activity for more than twelve months because of her depression. In its entirety, the record supports a finding that Plaintiff's depression is not disabling.
First, the court is not persuaded by Plaintiff's argument that Dr. Mouille's "amelioration" statement only applied to her ability to manage funds. The statement, "Depression expected to ameliorate within one year" is a very broad statement, and there is nothing in Dr. Mouille's report that would contradict a broad interpretation of the statement.
The court next notes that Plaintiff did not include depression as an impairment when she completed her applications for disability in February 2000. It appears that she first reported mental limitations in an August 16, 2001 Pre-Hearing Memorandum. She testified at the administrative hearing that her depression began when she had pain, but this statement is insufficient for the court to infer that she has been suffering from disabling depression for as long as she has had pain. The twelve-month duration requirement applies to Plaintiff's "inability to engage in any substantial gainful activity," not just to her underlying impairment, depression. See Barnhart v. Walton, 535 U.S. 212, 122 S.Ct. 1265, 1269-72 (2002).
Plaintiff argues that the court should not consider this evidence because the ALJ did not mention it in his opinion. "The record must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to discuss every piece of evidence. Rather, in addition to discussing the evidence supporting his decision, the ALJ also must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects." Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (citation omitted). The court will not limit itself to considering only the evidence the ALJ discussed, as the ALJ was not required to mention every piece of evidence in the record.
Plaintiff argues that Walton is not on point because Walton did not address a Listed Impairment. Plaintiff also submits that when a Listed Impairment is involved, "a more reasonable interpretation of the language in 20 C.F.R. § 404.1520(d) is that if a claimant has a `severe impairment' which has lasted or is expected to last for a continuous period of 12 months and he or she meets or equals a listing at the time of the Commissioner's decision, the claimant will be found disabled at step three of the sequential evaluation." The court disagrees. 20 C.F.R. § 404.1525(a) specifies that "[m]ost of the listed impairments are permanent or expected to result in death, or a specific statement of duration is made. For all others, the evidence must show that the impairment has lasted or is expected to last for a continuous period of at least 12 months." The court interprets this regulation to require that the claimant have a Listed Impairment for at least 12 months, and notes that this interpretation is consistent with the Supreme Court's decision in Walton.
20 C.F.R. § 404.1520(d) states, "If you have an impairment(s) which meets the duration requirement and is listed in Appendix 1 or is equal to a listed impairment(s), we will find you disabled without considering your age, education, and work experience."
Plaintiff's lack of treatment also supports a finding of "not disabled." Plaintiff testified at the administrative hearing that she had received no treatment for anxiety or depression, and the ALJ noted that Plaintiff did not display signs of memory or confusion problems during the hearing. Although Plaintiff now claims that her treating physician prescribed antidepressant medication for her, the court notes that the medication, Amitriptyline, may not have been prescribed for depression. A form completed on January 16, 2002 by Plaintiff's treating physician's nurse practitioner indicates that Plaintiff was prescribed an antidepressant for neuropathy. Plaintiff's treating physician also noted that Amitriptyline helped Plaintiff sleep. The only other evidence in the record regarding the purpose of Plaintiff's antidepressant medication is Plaintiff's statement at the administrative hearing that "[t]he doctor told me it was for my depression and it was supposed to help." Plaintiff did not specify which doctor told her the medication was for her depression, and her statement conflicts with her earlier statement that she had not received any treatment for anxiety or depression. The ALJ found Plaintiff's testimony not credible, and Plaintiff has not appealed that finding.
The breadth of Plaintiff's self-reported activities also belies a finding of "disabled." On February 26, 2000 and June 28, 2000, Plaintiff reported that she was engaging in the following activities: cooking five times a week; six loads of laundry a week with help; light housekeeping; grocery shopping four times a month with help; and "other" shopping twice a month with help, among other activities. On the same forms, Plaintiff discussed pain in her right shoulder and neck. There was no mention of any mental limitations on either form.
Finally, the court rejects Plaintiff's argument that this case mirrors Tucker v. Sullivan, 779 F. Supp. 1290 (D.Kan. 1991), and Taylor v. Bowen, 738 F. Supp. 436 (D.Kan. 1987). The court finds both cases distinguishable. Tucker and Taylor held that the respective ALJs improperly substituted their own opinions for those of the claimants' physicians. 779 F. Supp at 1298; 738 F. Supp. at 439-440. Here, the ALJ specifically relied on Dr. Mouille's opinion that Plaintiff's depression would not last for a year. Dr. Mouille did not offer a retrospective opinion on Plaintiff's condition. When the ALJ attempted to determine how long Plaintiff's mental limitations had lasted, therefore, there was no medical opinion for him to replace with his own opinion.
The court concludes that there is substantial evidence supporting the ALJ's decision. As a whole, the record supports a finding that Plaintiff's mental impairments were not disabling. The ALJ's decision is affirmed on this basis.
B. Failure to Fully Develop the Record
Plaintiff next claims that the ALJ discounted Dr. Mouille's opinion, and because he did, he had a duty to further develop the record regarding Plaintiff's mental limitations by ordering a second consultative examination. The court disagrees on both counts. First, the ALJ did not fully discount Dr. Mouille's opinion. The ALJ relied largely on Dr. Mouille's statements that Plaintiff's depression was expected to ameliorate within one year and that Plaintiff's IQ score was inconsistent with her employment history.
Second, the court determines that the ALJ fulfilled his obligation to adequately develop the record. "The ALJ has a basic obligation in every social security case to ensure that an adequate record is developed during the disability hearing consistent with the issues raised. This is true despite the presence of counsel, although the duty is heightened when the claimant is unrepresented." Henrie v. United States Dep't of Health Human Servs., 13 F.3d 359, 360-61 (10th Cir. 1993) (internal citations omitted). An ALJ may have a duty to order a consultative examination when "such an examination is necessary or helpful to resolve the issue of impairment." Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997); Robertson v. Chater, 900 F. Supp. 1520, 1530 (D.Kan. 1995) (citations omitted). The ALJ has broad discretion in deciding whether to order such an examination. Diaz v. Sec'y of Health Human Servs., 898 F.2d 774, 778 (10th Cir. 1990).
The ALJ asked Plaintiff several questions about her apparent lack of treatment for depression and anxiety. He specifically asked Plaintiff about Dr. Mouille's "amelioration" statement. Plaintiff was unable to explain why she was not receiving treatment and why she had not sought treatment. The ALJ also observed Plaintiff's mannerisms at the hearing. Although the ALJ has a duty to develop the record, it remains Plaintiff's burden to establish that she was disabled. Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991) (citation omitted). She was represented by counsel, and she was not precluded from obtaining and submitting additional evidence regarding her mental impairments or any medication being taken for such impairments. Furthermore, Plaintiff's counsel was aware that the ALJ was concerned about Dr. Mouille's "amelioration" statement and had the opportunity to present evidence indicating that Plaintiff's allegedly disabling depression had lasted for more than a year or was expected to last for more than a year. Counsel did not indicate at the administrative hearing that the evidence regarding Plaintiff's mental condition required further development. See Hawkins, 113 F.3d at 1167-68.
The ALJ had sufficient evidence before him to make a determination regarding Plaintiff's emotional and mental limitations; he observed that Plaintiff had not sought treatment for her depression, noted that Plaintiff's medication was minimal, and considered Dr. Mouille's opinion. The court concludes that the ALJ did not have a duty to more fully develop the record by ordering a second consultative examination. The ALJ's decision is affirmed on this basis.
C. Inadequate Hypothetical Question
Plaintiff also claims that the ALJ posed an inadequate hypothetical question to the vocational expert because he did not include Plaintiff's mental and emotional limitations as identified by Dr. Mouille. In crafting a hypothetical question, the ALJ may only rely on those limitations supported by substantial evidence in the record. Patterson v. Apfel, 62 F. Supp.2d 1212, 1218 (D.Kan. 1999) (citing Talley v. Sullivan, 908 F.2d 585, 588 (10th Cir. 1990)). "Without question, the ALJ may restrict the questions to those limitations which he has found to be based upon credible evidence." Gay v. Sullivan, 986 F.2d 1336, 1341 (10th Cir. 1993).
In this case, the ALJ included in the hypothetical question only those limitations he found to be credible. He instructed the vocational expert that Plaintiff was limited to "simple, unskilled job tasks mentally." While Dr. Mouille stated that Plaintiff suffered marked and extreme functional restrictions in several areas, the ALJ did not relay such restrictions to the vocational expert because Dr. Mouille also opined that Plaintiff's depression was expected to ameliorate within one year. The court concludes that the ALJ properly applied the law, and affirms the decision on this basis.
IT IS, THEREFORE, BY THE COURT ORDERED that the decision of the Commissioner is affirmed.
The case is closed.
Copies or notice of this order shall be transmitted to counsel of record.
IT IS SO ORDERED.