Head v. Astrue, Case No: 10-cv-45-TLW
| Decision Date | 01 June 2011 |
| Docket Number | Case No: 10-cv-45-TLW |
| Court | U.S. District Court — Northern District of Oklahoma |
| Parties | CECIL LLOYD HEAD, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. |
Plaintiff Cecil Lloyd Head seeks judicial review of a decision of the Commissioner of the Social Security Administration denying his claim for supplemental security income ("SSI") benefits under Title XVI of the Social Security Act ("the Act"), 42 U.S.C. § 1382c(a)(3). In accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to proceed before a United States Magistrate Judge. [Dkt. # 14]. Any appeal of this Opinion and Order will be directly to the Tenth Circuit.
On July 2, 2007, plaintiff filed an application for supplemental security income benefits alleging disability due to chronic low back pain (resulting from a work related injury on January 15, 2007), chronic right leg pain, major depressive disorder, general anxiety disorder, sleep disturbance, fatigue, poor memory, and poor concentration. [Dkt. # 22 at 1-2]. After being denied benefits, plaintiff filed a written request for a hearing before an ALJ on February 29, 2008. The ALJ conducted a hearing on April 7, 2009. On May 13, 2009, the ALJ issued her decision, denying benefits. Following the decision, the Appeals Council denied plaintiff's request for review on November 25, 2009. The decision of the Appeals Council represents theCommissioner's final decision for purposes of further appeal. 20 C.F.R. § 416.1481. On January 1, 2010, plaintiff timely filed the subject action with this Court. [Dkt. # 2].
The role of the Court in reviewing a decision of the Commissioner under 42 U.S.C. § 405(g) is only to determine whether substantial evidence supports the decision and whether the applicable legal standards were applied correctly. See Briggs ex. rel. Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001). Substantial evidence is more than a scintilla, 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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The Court may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Casias v. Secretary of Health & Human Service, 933 F.2d 799, 800 (10th Cir. 1991).
A claimant for disability benefits bears the burden of proving that he is disabled. 42 U.S.C. § 423 (d)(5); 20 C.F.R. § 416.912(a). "Disabled" is defined under the Act as an "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. § 423(d)(1)(A). To meet this burden, plaintiff must provide medical evidence of an impairment and the severity of his impairment during the relevant adjudicated period. 20 C.F.R. § 416.912(b). Disability is a physical or mental impairment "that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques" administered by "acceptable medical sources" such as licensed and certified psychologists and physicians. 42 U.S.C. § 423 (d)(3); 20 C.F.R. § 416.913.
Plaintiff was born on January 16, 1961, and was forty-eight at the time of his hearing before the ALJ. [R. 16, 19]. Plaintiff was 6'1" tall and weighed 130 pounds at the time he filed his claim. [R. 188]. He dropped out of school in the eleventh grade and never obtained a GED. [R. 266]. Plaintiff has worked as a mechanic, an assembler, and a salvage laborer. [R. 50-51]. He is single and lives with his mother in her home. [R. 31]. He consumes two packs of cigarettes and ten cups of coffee daily and has been convicted of six DUI's. [R. 266, 267]. Plaintiff has a history of various back problems, none of which have resulted in surgery. [R. 276]. Plaintiff asserts that he stopped working on January 15, 2007, as a result of a work related back injury. [R. 118, 276]. Plaintiff had been previously diagnosed with mild desiccation or degeneration of intervertebral discs at L2-3, L3-4 and L4-5, and mild to moderate central disc bulging at L4-5 producing a mild to moderate spinal stenosis. [R. 218]. Plaintiff subsequently claimed a heart condition that he admits is uncorroborated by medical evidence. [Dkt. # 22 at 5; R. 47-48, 133]. Plaintiff has self-prescribed the use of a cane for walking and has seen amultitude of doctors and chiropractors for treatment of his physical injuries.1 [R. 33-34]. His treatment has led to the prescription of various pain medications, including Tramadol (from two to eight 50 mg doses a day). [R. 267, 277]. Plaintiff has never undergone surgery for his spinal issues, and his doctors have postulated that surgery would have a less than 50% chance of improving his condition. [R. 341]. Doctors that have been involved in the treatment of plaintiff's spinal issues include: Brian Ispen, M.D., a treating orthopedic surgeon retained for a prior worker's compensation claim, who the ALJ has acknowledged saw plaintiff thirteen times [R. 16]; Kevin Mangels, M.D., an evaluating spinal surgeon who was retained by plaintiff's attorney [R. 281]; John Knudson, III, M.D., a treating pain management specialist, whom plaintiff was referred to by Dr. Ipsen [R. 161]; and Kenneth R. Trinidad, D.O., an evaluating osteopathic specialist from whom plaintiff sought a second opinion to Dr. Ispen. [R. 187].
Additionally, plaintiff was diagnosed with major depressive disorder and general anxiety disorder by Lindsey Brooks, Psy.D. on February 27, 2009. [R. 269]. Plaintiff had a single visit with Dr. Brooks lasting two hours. [R. 260]. Before seeing Dr. Brooks, plaintiff had been taking an antidepressant medication called amitriptyline, prescribed by Dr. Knudson to help with depression and sleep. [R. 41]. Plaintiff alleges that he did not struggle with depression for more than a year before consulting Dr. Brooks. [R. 260]. The record does not reflect that additional counseling was sought after the meeting with Dr. Brooks.
The ALJ found that plaintiff had not engaged in any substantial gainful activity since July2, 2007. [R. 11]. The ALJ next found at step two of the five-step sequential evaluation process2 that plaintiff's mental disorders were non-severe using the listings in appendix 1 of subpart P of 20 C.F.R. 404. [R. 11-13]. Subsequently, the ALJ made a finding at step five that while plaintiff could not perform his past relevant work, he had the residual functional capacity (RFC) to perform the full range of sedentary work as defined by 20 C.F.R. 416.967(a) with certain limitations. [R. 14]. Based on the testimony of the vocational expert, the ALJ found that plaintiff could find employment as an assignment clerk or a radio dispatcher. [R. 20].
I. Issue One
First, plaintiff asserts that the ALJ erred in finding that his depressive disorder is not a severe impairment. [Dkt. # 22 at 3]. The threshold for finding that an impairment is severe is relatively low. Bowen v. Yuckert, 107 S. Ct. 2287 (1987). A finding of non-severity is proper when the evidence establishes only a slight abnormality which has no more than a minimal effect on a claimant's ability to do basic work activities. SSR 85-28. At step two, the ALJ is to assess a plaintiff's performance of "basic work activities" in conjunction with the alleged impairment. If the severity of the impairment cannot be clearly determined, step two should be skipped in favor of moving to step three and the remaining steps of the sequential evaluation until a determination regarding disability can be reached. SSR 96-3p. If the ALJ is doubtful about the severity of the symptoms, the plaintiff should be given the benefit of the doubt. Id. Basic workactivities include: the ability to perform required physical functions; the capacity to speak, see, and hear; the ability to understand or carry out simple instructions; the use of judgment; the ability to respond appropriately to supervision; and the ability to deal with changes in routine. 20 C.F.R. § 416.945(b)(c).
In finding that plaintiffs mental impairments were non-severe, the ALJ correctly cited Section 12.04 (affective disorders) for the criteria to be considered in determining the severity of an alleged major depressive disorder impairment. Section 12.04 provides that "[t]he required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in C are satisfied." 20 C.F.R. § 404, subpart P, App. 1. The ALJ also correctly identified the "C" criteria. The ALJ then correctly cited Section 12.06 (anxiety related disorders) for the criteria to be considered in determining the severity of an alleged general anxiety disorder impairment. Next, the ALJ stated her finding:
The claimant's medically determinable mental impairments of major depressive disorder and general anxiety disorder, considered singly and in combination, do not cause more than...
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