Savat v. Social Security Administration, No. 5:2007cv01752 - Document 13 (W.D. La. 2009)

Court Description: MEMORANDUM RULING AFFIRMING the decision of the Commissioner and DISMISSING this matter WITH PREJUDICE. Signed by Magistrate Judge Karen L Hayes on 3/5/09. (crt,Crawford, A)

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION FRANK V. SAVAT * VERSUS * MICHAEL J. ASTRUE, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION * CIVIL ACTION NO. 07-1752 MAGISTRATE JUDGE HAYES MEMORANDUM RULING Before the court is plaintiff s petition for review of the Commissioner s denial of social security disability benefits. Pursuant to 28 U.S.C. § 636(c)(1) and with the consent of all parties, the district court referred the above-captioned matter to the undersigned magistrate judge for the administration of proceedings and entry ofjudgment. For reasons assigned below, the decision ofthe Commissioner is AFFIRMED, and this matter DISMISSED with prejudice. Background & Procedural History Frank V. Savat, Jr. filed the current application for Title II Disability Insurance Benefits on January 16, 2003. (Tr. 16O~162).1 He alleged disability since April 3, 1995, due to a herniated disc, fibromyalgia, and depression. (Tr. 160, 168). The claim was denied at the initial stage of the administrative process. (Tr. 142, 153-156). Thereafter, Savat requested and received a March 12, 2004, hearing before an AU. (See, Tr. 390). However, in a May 28, 2004, written decision, AU Thomas Bundy found that Savat was not disabled under the Act. (Tr. 387-396). 1 An Administrative Law Judge ( AU ) denied a prior application for Disability Insurance Benefits on April 3, 1997; it was not further pursued. (See, Tr. 27). Savat appealed the adverse decision to the Appeals Council, which granted the request for review, vacated the AU s decision, and remanded the case for further proceedings. (October 15, 2004, Order; Tr. 405-408). Upon remand, a new hearing was held on June 6, 2005, before AU Charles Lindsay. (Tr. 86-132). However, in a July 27, 2005, written decision, the AU found that Savat was not disabled under the Act. (Tr. 436-448). Savat appealed the adverse decision to the Appeals Council, which again granted the request for review, vacated the AU s decision, and remanded the case for further proceedings. (See, March 3, 2006, Order, Tr. 454-457). Upon remand, new hearings were held before AU Bundy on March 1, 2006,2 and November 1, 2006. (Tr. 39-85). Nevertheless, on December 13, 2006, the AU determined that Savat was not disabled under the Social Security Act, finding at Step Five of the sequential evaluation analysis that he was able to make an adjustment to other work that exists in substantial numbers in the national economy. (Tr. 24-38). Savat appealed the adverse decision to the Appeals Council. This time, however, the Appeals Council denied Savat s request for review; thus the AU s decision became the final decision of the Commissioner. (August 24, 2007, Notice; Tr. 9-11). On October 24, 2007, Savat sought review before this court. He alleges several errors which can be categorized as follows, 1) the AU erred in his analysis at Step Two of the sequential evaluation process, because he failed to recognize all ofplaintiff s severe impairments; 2) the AU s residual functional capacity assessment is not supported by substantial evidence; and This hearing date precedes the Appeals Council s remand order. Although the hearing transcript is dated March 1, 2006, it is likely the transcript from the March 12, 2004, hearing, which does not otherwise appear in the record. 2 2 3) the AU s Step Five determination is not supported by substantial evidence. Standard of Review This court s standard of review is (1) whether substantial evidence of record supports the AU s determination, and (2) whether the decision comports with relevant legal standards. Villa v. Sullivan, 895 F.2d 1019, 1021 (5t~~ Cir. 1990). Where the Commissioner s decision is supported by substantial evidence, the findings therein are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. 389, 390 (1971). The Commissioner s decision is not supported by substantial evidence when the decision is reached by applying improper legal standards. Singletary v. Bowen, 798 F.2d 818 (5th Cir. 1986). Substantial evidence is suchrelevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. at 401. While substantial evidence lies somewhere between a scintilla and a preponderance, substantial evidence clearly requires such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991). Conversely, a finding of no substantial evidence is proper when no credible medical findings or evidence support the AU s determination. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). The reviewing court may not reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Secretary. Greenspan v. Shalala, 38 F.3d 232, (5th Cir. 1994). Determination ofDisability Pursuant to the Social Security Act (the Act ), individuals who contribute to the program throughout their lives are entitled to payment of insurance benefits if they suffer from a 3 physical or mental disability. See 42 U.S.C. § 423(a)(1)(D). The Act defines a 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 ofnot less than 12 months. . . . 42 U.S.C. § 423(d)(1)(A). Based on a claimant s age, education, and work experience, the Act utilizes a broad definition of substantial gainful employment that is not restricted by a claimant s previous form ofwork or the availability of other acceptable forms of work. See 42 U.S.C. § 423(d)(2)(A). Furthermore, a disability may be based on the combined effect ofmultiple impairments which, if considered individually, would not be of the requisite severity under the Act. See 20 C.F.R. § 404.1520(a)(4)(ii). The Commissioner of the Social Security Administration has established a five-step sequential evaluation process that the agency uses to determine whether a claimant is disabled under the Act. See 20 C.F.R. §~ 404.1520, 416.920. The steps are as follows, (1) An individual who is performing substantial gainful activity will not be found disabled regardless of medical findings. (2) An individual who does not have a severe impairment ofthe requisite duration will not be found to be disabled. (3) An individual whose impairment(s) meets or equals a listed impairment in [20 C.F.R. pt. 404, subpt. P, app. 1] will be considered disabled without the consideration ofvocational factors. (4) If an individual s residual functional capacity is such that he or she can still perform past relevant work, then a finding of not disabled will be made. (5) If an individual is unable to perform past relevant work, then other factors including age, education, past work experience, and residual functional capacity must be considered to determine whether the individual can make 4 an adjustment to other work in the economy. See, Boyd v. Apfel, 239 F.3d 698, 704 -705 (5th Cir. 2001); 20 C.F.R. § 404.1520. The claimant bears the burden ofproving a disability under the first four steps of the analysis; under the fifth step, however, the Commissioner must show that the claimant is capable of performing work in the national economy and is therefore not disabled. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). When a finding of disabled or not disabled maybe made at any step, the process is terminated. Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990). If at any point during the five-step review the claimant is found to be disabled or not disabled, that finding is conclusive and terminates the analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987). Analysis Savat remained insured for Title II disability benefits only through December 31, 2000. (Tr. 28). Thus, disability must be established on or before that date. Id. Also, because an AU denied Savat s prior application on April 3, 1997, the relevant period begins on April 4, 1997. I. Steps Two and Three The AU determined at Step Two of the sequential evaluation process that Savat suffers severe impairments of herniated nucleus pulposus, U-S/Si, degenerative disc disease, fibromyalgia, and depression. (Tr. 30, 37). He concluded, however, that the impairments were not severe enough to meet or medically equal any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4, at Step Three of the process. Id. Plaintiff contends that the AU erred because his decision purportedly failed to consistently list his severe impairments. On page two of his decision, the AU recited plaintiff s alleged impairments of herniated disc, fibromyalgia, and depression. (Tr. 28). Thereafter, in the S body of his decision and in his findings, the AU determined that Savat suffered from severe impairments of herniated nucleus pulposus, U-S/Si, degenerative disc disease, fibromyalgia, and depression. (Tr. 30, 37) (emphasis added). It is manifest, however, that the AU initially recited the impairments alleged by plaintiffon his application. (See, Tr. 28, i68). The AU did not determine plaintiff s severe impairments until later in his decision, which he consistently applied thereafter. Plaintiff further contends that the AU s Step Two determination omitted other impairments such as pain, depression, and learning/cognitive disorders. Pain, alone or in conjunction with other impairments, may be disabling, and the [Commissioner] is obliged to weigh subjective evidence ofits existence. Dellolio v. Heckler, 70S F.2d i23, i27 (St ~Cir. i 983) (citations omitted). In assessing the severity of an impairment, the Fifth Circuit has determined that an impairment can be considered as not severe only if it is a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual s ability to work, irrespective of age, education or work experience. Loza v. Apfel, 2i9 F.3d 378, 39i (Sth Cir. 2000). The court observes that the AU did determine that plaintiff s depression constituted a severe impairment. (Tr. 30, 37). Moreover, to the extent that plaintiff urges generic pain and learning disorder as severe impairments, such omission is not critical when, as here, the AU has determined that the claimant suffers at least one severe impairment. At this point, the AU must proceed to consider all medically determinable impairments and their effects in the remaining steps of the sequential analysis. 20 C.F.R. §~ 404.i523 & 4i6.923. In fact, the AU specifically observed that once it is determined that a severe impairment exists, all medically determinable 6 impairments must be considered in the remaining steps of the sequential analysis. (Tr. 29). The critical issue is whether the AU s residual functional capacity assessment is supported by substantial evidence. II. Residual Functional Capacity Assessment The AU determined that Savat retained the residual functional capacity to perform light work reduced by moderate limitations in the ability to understand, remember, and carry out detailed instructions and make judgments on simple work-related decisions. (Tr. 34, 37).3 Savat also suffers slight limitations in his ability to: interact appropriately with the public, supervisors and coworkers; respond appropriately to work pressures in a usual work setting; and respond appropriately to changes in a routine work setting. Id.4 a) Physical RFC Plaintiff contends that the AU s determination that plaintiff retained the exertional capacity for a full range of light work is undermined by his testimony and the medical record. He ~ Light work entails: lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, ajob is in this category when it requires a good deal of walking or standing, or when it involves sitting most ofthe time with some pushing and pulling ofarm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all ofthese activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods oftime. 20 C.F.R. § 404.1567(b). The AU defined moderate as moderately limited, but still able to function satisfactorily. Id. Slight is defined as a mild limitation, but generally able to function well. Id. 7 refers, for example, to Larry Broadwell, M.D., who examined plaintiff almost one year after the relevant period. (Tr. 232-23S). During the examination, Savat reported that his former employer had promised to take care ofhim, but had since reneged on the promise. Id. Savat stated that it was a big disappointment and letdown, but that it would not be a problem if he were able to work. Id. Broadwell diagnosed low back pain with degenerative disc disease of the lumbar spine; discogenic etiology ofback pain with history of herniated disk; fibromyalgia; and degenerative disk disease of the cervical spine with neck pain. Id. Broadwell believed that employment at the light duty level might be possible, with a sit/stand option to avoid prolonged sitting. Id.5 On, or about July i 2, 2002, Savat underwent a functional capacity evaluation which concluded that he was capable of full-time work at the light physical exertional level. (Tr. 24325 6). The physical therapist stated that Savat perceived himself as suffering from a severe disability which was not consistent with the evaluation. Id. The physical therapist stated that he would do best with ajob that allowed him to frequently change position. Id. Stooping should be occasional, and he should not squat, kneel, or climb ladders. Id.6 A previous functional capacity ~ Dr. Broadwell s examination contains the earliest reference of a cervical impairment. Although, contemporaneous x-rays confirmed cervical issues, there is no evidence that plaintiff complained of cervical problems prior to the date that he was last insured, almost one year earlier. Moreover, despite recognizing the cervical impairment, Dr. Broadwell did not assign any additional limitations due to this impairment. Based upon his one-time examination in 200 i, Broadwell wrote a subsequent medical report on February i8, 2003, stating that Savat was restricted to lifting 2S pounds. (Tr. 237). Broadwell further stated that he could not frequently bend his neck or back, and had restrictions on prolonged sitting, standing, or walking. Id. The record also reveals an April 2i, 2003, evaluation by a pain care specialist, Ross Nelson, M.D. (Tr. 478-48i). However, Nelson did not assess plaintiff s limitations, and his evaluation does not focus upon the relevant period at issue. 6 However, Savat believed that he could occasionally squat and kneel. (Tr. 2SS). 8 evaluation indicated that Savat was capable of full-time work at the light exertional level. (Tr. 24S). Also, a January 29, 2003, Narrative Report from Savat s chiropractor indicated that he could not performrepeated bending, lifting, stooping, or prolonged sitting or standing. (Tr. 276277). However, the report did not mention a cervical impairment. Id.7 Of the various medical sources that addressed plaintiff s physical residual functional capacity, only Savat s treating orthopedist, Austin Gleason, M.D., examined him during the relevant period. Moreover, during that time, plaintiff saw Dr. Gleason on only five occasions, and his complaints were limited to low back pain. (Tr. 2i3-2i7). At his most recent visit just four days before his eligibility for benefits expired, plaintiff described lower back pain that radiated to his left leg and that it comes and goes. (Tr. 2i3). In a July iO, 200i, Progress Report, Dr. Gleason wrote that he first began seeing Savat in March i995. (Tr. 2 ii). Gleason stated that in i995, he diagnosed plaintiff with herniated disc, extrusion at US-Si on the left side, and recommended surgery. Id. He noted that he had last seen Savat on December 27, 2000, when he was still complaining of leg pain. Id. Gleason reviewed a labor market survey conducted by Cigna, and opined that plaintiff could perform four out of the twelve jobs listed, which were identified at the sedentary and light exertional levels. Id. ~ The court observes that physical therapists, like chiropractors, are not acceptable medical sources under the regulations. 20 C.F.R. § 404.iSi3(d) & 4i6.9i3(d). Moreover, only acceptable medical sources can provide medical opinions to show the severity of a claimant s impairment and how it affects her functional ability. 20 C.F.R. § i527(a)(2) & 4i6.927(a)(2). Although the AU is required to consider evidence from other sources when evaluating an acceptable medical source s opinion, the fact that a medical opinion is from an acceptable medical source is a factor that may justify giving that opinion greater weight than an opinion from a medical source who is not an acceptable medical source because,... acceptable medical sources are the most qualified health care professionals. SSR O6-O3p. See also, Griego v. Sullivan, 940 F.2d 942, 94S (St ~Cir. i99i) (recognizing that the regulations accord less weight to other sources such as chiropractors than to medical doctors). 9 On January i4, 2004, Dr. Gleason sent a letter to plaintiff s attorney wherein he agreed that from an orthopedic standpoint, Savat could work at the light or sedentary level. (Tr. 364365). Due to Savat s vocational factors and mental impairments, however, Gleason concluded that he had been disabled since i 995, and would require extensive training to make an adjustment to other light or sedentary work. Id. Of course, a physician s statement that a claimant is disabled or unable to work is accorded no special significance under the regulations. 20 C.F.R. § 404.i527(e)(i); Frankv. Barnhart, 326 F.3d 6i8 (St ~Cir. 2003). Moreover, whether Savat would be able to make an adjustment to other work is outside ofa physician s expertise; it remains an issue for the vocational expert.8 Plaintiff also contends that the AU failed to account for his complaints of pain. Of course, pain is considered disabling under the Social Security Act only when it is constant, unremitting, and wholly unresponsive to therapeutic treatment. Selders v. Sullivan, 9 i 4 F.2d 6i4, 6i8-6i9 (Sth Cir. i990). The AU s decision as to the credibility ofplaintiff s complaints of pain is entitled to considerable judicial deference if supported by substantial evidence. James v. Bowen, 793 F.2d 702, 706 (Sth Cir. i986); Wren v. Sullivan, 92S F.2d i23, i28 (Sth Cir. i99i). Factors that the AU may consider in evaluating the claimant s subjective complaints include: (i) claimant s daily activities; Falco v. Shalala, 27 F.3d i60 (Sth Cir. i994); Anthony v. Sullivan, 9S4 F.2d 289, 296 (Sth Cir. i992); Reyes v. Sullivan, 9i5 F.2d, iSi, iSS (Sth Cir. i990); (2) medication the claimant takes for pain; Anthony v. Sullivan, supra; Villa v. Sullivan, 89S F.2d iOi9, i024 (Sth Cir. i990); (3) degree ofmedical treatment; Villa v. Sullivan, supra; Nickerson v. Secretary ofHealth and Human Services, 894 F. Supp. 279 (E.D. Tex. 8/3/i995); (4) lack of 8 Gleason s records during the relevant period do not reference any mental impairment. io medical opinions in the record indicating the claimant is precluded from performing the level of activity indicated by the AU; Villa v. Sullivan, supra; and (S) external manifestations of debilitating pain such as marked weight loss. Falco v. Shalala, 27 F.3d i60 (Sth Cir. i994); see also 20 C .F.R.§ §404. i 529(C)(3)(I)-(vii), 4 i 6.929(c)(3)(I)-(vii) (i 993). In this case, the AU carefully considered plaintiff s complaints ofpain and found that his impairments could reasonably cause his alleged symptoms. (Tr. 32). However, he did not credit Savat s allegations regarding the severity of the symptoms. Id. Nonetheless, due to his impairments, the AU reduced plaintiff s residual functional capacity to the light occupational base. There is substantial record evidence that the AU s residual functional capacity assessment accommodated plaintiff s impairments and their effects. See, discussion, supra; Story v. Astrue, Docket No. 08-i0234 (St ~Cir. Sept. 30, 2008) (unpubl.) (AU fulfilled obligation to make explicit credibility findings when he considered claimant s allegations and found them inconsistent with the medical evidence).9 In his assessment, the AU clearly credited the limitations recognized by plaintiff s treating orthopedist, Dr. Gleason. As the fact finder, the AU enjoys the sole responsibility for weighing the evidence and may choose whichever physicians diagnosis is most supported by the record. Muse v. Sullivan, 92S F.2d 78S, 790 (St ~Cir. i99i) (citing Bradley v. Bowen, 809 F.2d i054, i057 (Sth Cir.i987)). Here, he favored the assessment ofthe physician that had a longitudinal appreciation of plaintiff s condition, and who saw plaintiff during the relevant ~ There is evidence that plaintiff exaggerated his symptoms. See, discussion, infra. ii period. 10 b) Mental RFC There is no question that by 2002-2003, Savat s depression imposed severe work-related limitations. The issue, however, is whether these limitations existed during the relevant period, i.e. prior to 200 i. In this regard, [a] claimant is eligible for benefits only if the onset of disability began on or before the date the claimant was last insured. Ivy v. Sullivan, 898 F.2d i045, i048 (Sth Cir. i990). The claimant bears the burden of establishing a disabling condition before the expiration of his insured status. Id. Social Security Ruling 83-20 outlines the policy and procedure by which the Commissioner should determine the onset date of a disability. SSR 83-20 (i983). Factors relevant to the determination of disability onset include the individual s allegation, the work history, and the medical evidence. Id. With slowly progressive impairments such as depression, it is sometimes impossible to obtain medical evidence establishing the precise date an impairment became disabling. Spellman v. Shalala, i F.3d 3S7, 10 Even if the court were to accept plaintiff s argument that the AU should have credited some of the additional restrictions identified by Dr. Broadwell and the other sources, any error was harmless. See, Audler v. Astrue, SOi F.3d 446, 448 (St ~Cir. 2007) (AU s omission does not require remand unless it affected claimant s substantial rights). During a prior hearing, AU Lindsay (and plaintiff s counsel) posited hypotheticals to a vocational expert ( VE ) that incorporated additional physical limitations such as the ability to only occasionally perform postural activities and the need for a sit/stand option, but the VE opined that there were jobs that existed in substantial numbers in the national economy that plaintiff could perform despite these additional restrictions. (Tr. ii 9-i 32). The hypotheticals included mental limitations consistent with the instant AU s residual functional capacity assessment. (See, Tr. i23-i24, i30). VE testimony from a prior hearing may properly support the Commissioner s decision when, as here, the claimant had an opportunity to cross-examine the expert. See, Sonnier v. Shalala, Si F.3d i045, i995 WU i534i5 (Mar. 29, i995) (unpubl.); Sherman v. Astrue, 233 Fed. Appx. 70S (9th Cir. May 2S, 2007); Wolfe v. Chater, 86 F.3d i072 (i it ~ Cir. i996); and Thibaut v. Astrue, 2008 WU 45i0033 (M.D. La. Oct. 2, i998). i2 362 (Sth Cir. i997) (quoting, SSR 83-20). In such cases, when the medical evidence regarding the onset date of a disability is ambiguous and the [Commissioner] must infer the onset date, SSR 83-20 requires that that inference be based on an informed judgment. The [Commissioner] cannot make such an inference without the assistance of a medical advisor. Spellman, i F.3d at 362. In this case, the AU employed the services of a psychiatrist, Barbara Felkins, M.D., to assess the effects of plaintiff s mental impairment. In response to interrogatories dated June i, 2006, from the AU, Felkins opined that Savat met Listing i2.04. Id. She also completed a medical source statement which indicated marked and moderate limitations of functioning. Id. However, the interrogatories and her responses thereto did not set forth the relevant period at issue. Accordingly, on July i 0, 2006, the AU submitted additional interrogatories to Dr. Felton, which clarified the relevant period at issue. (Tr. S74-S79). This time, Felton specified that plaintiff did not meet Listing i2.04 until October iO, 2002. Id. Prior to that time, she opined that his mental impairment imposed only moderate and slight limitations of functioning limitations which were ultimately adopted by the AU in his residual functional capacity assessment. (Tr. S80-S8i)J~ Plaintiff contends that the AU erred when he credited Felton s, a non-examining physician, assessment of the temporal progression of a claimant s impairment over the ~ Plaintiff contends that the focus of Dr. Felton s review was whether or not plaintiff met a listing during the relevant period. While Dr. Felton s review was unquestionably directed at the Step Three inquiry, she also addressed the Step Two inquiry and plaintiff s mental residual functional capacity. (Tr. 574-58i). i3 assessments rendered by two examining, consultative physicians.12 Ordinarily, plaintiff s argument would be well-taken.13 Here, however, the issue is not plaintiff s condition at the time 12 In support of his argument, plaintiff touts the findings of two consultative psychologists, James Pinkerton, Ph.D., and Gary Milford, Ph.D. The former psychologist examined Savat on February 24, 200S, at the request of Disability Determination Services. (Tr. 424-428). Pinkerton observed that Savat ambulated without gross difficulty. Id. Pinkerton remarked that Savat openly endorsed psychological distress at a magnitude suggesting possible exaggeration. Id. Pinkerton concluded that the report reflected a reasonable representation of Savat s emotional functioning in the context of possible exaggeration. Id. During the evaluation, Savat stated that he placed a pistol to his head a few times about three years earlier. Id. He also self-inflicted wounds to his head when he becomes frustrated or upset. Id. He stated that he did not feel like working because he was depressed all ofthe time, and did not like to be around people. Id. Savat reported a history of depression going to back to i 985. Id. He nonetheless was able to sustain concentration, and was capable of making independent decisions. Id. His overall intellectual skills were measured to be in the low average range. Id. Pinkerton diagnosed major depressive disorder, severe; panic disorder without agoraphobia; and pain disorder. Id. He assigned a current GAF of 50. Id. Pinkerton did not believe that Savat was motivated to pursue employment opportunities at that time. Id. He remarked that Savat had established a routine without employment for the past ten years. Id. Pinkerton concluded that Savat suffered numerous, marked limitations offunctioning which were thought to have lasted for ten years and were expected to continue, absent effective psychiatric treatment. Id. Pinkerton also completed a medical source statement of ability to do work-related activities (mental). (Tr. 429-43i). On September 7, 2006, and 2 i, 2006, Gary Milford saw Savat for a psychological evaluation. (Tr. S92-S99). Milford diagnosed major depression, recurrent; alcohol abuse; generalized anxiety; and somatoform features. Id. Milford remarked that Savat viewed himself as a victim and that he had bonded himself to that story. Id. Milford concluded that Savat was not employable. Id. On October 20, 2006, plaintiff s attorney sent Dr. Milford a copy of Dr. Pinkston s evaluation and medical source statement. (Tr. S84-S87). Milford reviewed Pinkston s assessment and agreed that Savat s difficulties had lasted for eleven years. Id. Milford also completed a medical source statement (mental), which indicated numerous marked limitations of functioning. Id. 13 [A]n AU may properly rely on a non-examining physician s assessment when those findings are based upon a careful evaluation of the medical evidence and do not contradict those ofthe examiningphysician. Carrier v. Sullivan, 944 F.2d 243, 246 (Sth Cir.i99i) (quoting, Villa v. Sullivan, 89S F.2d iOi9,i024 (Sth Cir. i990)) (emphasis added). i4 ofthe examination, but his condition as it existed more than five years before the examinations in question. As required by the regulations, the instant AU employed a medical advisor, a psychiatrist, to provide an opinion regarding the progression ofplaintiff s mental impairment. Moreover, in Spellman, the Fifth Circuit remanded the matter so the Commissioner could employ a medical advisor to assist with the disability onset date determination despite a statement by an examining physician that plaintiff s mental impairment has rendered the claimant unable to work for the past five or six years,. Spellman, supra. There was no suggestion that upon remand, the medical advisor had to examine the claimant in order to assess the disability onset date. Id. Moreover, in the case subjudice, there is other corroborating evidence to support the onset date as determined by Dr. Felton and the AU. Of paramount significance is a July i9, 2002, Appraisal Report rendered by David Atkins, Ph.D. (Tr. 23 8-242). During the evaluation, Savat reported no delays or deficits in his social-adaptive functioning. Id. He denied suicidal gestures or attempts. Id. Although he frequently cleared his throat in a tic-like fashion, he otherwise displayed normal psychomotor activity. Id. His speech content was adequate. Id. He displayed dysphoric mood and his affect was mildly constricted. Id. His immediate and sustained concentration were adequate. Id. He read at an eighth grade level, and his math skills were at the sixth grade level. Id. Atkins diagnosed low-average cognitive and academic abilities. Id. His verbal report strongly suggested dysthymic as opposed to a major mood disorder. Id. His prognosis was fair. Id. Atkins recommended vocational training and an opportunity for regular employment as deemed appropriate by a physician. Id. Atkins diagnosis for dysthymic disorder is significant because by definition, a dysthymic disorder is characterized by chronic, less severe depressive symptoms that have been present for is many years. Diagnostic and Statistical Manual ofMental Disorders, Fourth Edition, DSM-IV, pg. 348 (emphasis added). Moreover, other than occasional visits to a priest, there is no evidence that Savat sought treatment for a mental impairment during the relevant period. (See, Tr. 622). 14 In fact, plaintiff testified that he did not receive any mental health treatment during the relevant period. (Tr. S9). Savat s medical records confirm that his mental health began to decline after his private disability insurer ceased paying benefits in April 200i. (Tr. 24S). Progress notes from Savat s hospitalization in February 2003, reflect that his wife was concerned that depression was becoming increasingly worse. (Tr. 29S) (emphasis added). Upon admission, on February 2i, 2003, Savat stated that he had been under stress for two years. (Tr. 3i 8) (emphasis added). His depression was worsening. Id. Progress notes from February 23 and 28, 2003, indicate that Savat was not gravely disabled. (Tr. 287, 292). After his hospital discharge in 2003, records indicate that plaintiff did not take his medication regularly. (Tr. 363). Dr. Richie indicated that somatization disorder was a consideration. Id. Richie noted that Savat was worried about the possibility of not obtaining Social Security and becoming destitute. Id.15 In sum, the record contains substantial evidence to support a finding that Savat s mental health did not begin to decline until his private disability provider withdrew his eligibility for 14 There is evidence of treatment for a mental impairment in i986-i987. (Tr. 38i-386). Again, however, he was diagnosed with dysthymic and adjustment disorders, rather than depression. Id. In January-February 2004, two of Savat s treating mental health providers, John Richie, M.D., and Alton McKnight, Ph.D., completed psychiatric review techniques and medical source statements indicating marked or extreme limitations of functioning in multiple areas. (Tr. 348-36i, 366-379). However, they specifically limited their assessments to Savat s condition beginning in 2003. Id. i6 benefits in April 200 i. The mental health examination that most closely trailed the relevant period recognized symptoms and a diagnosis considerably less severe than his deteriorated state less than one year later. Again, the medical records reflect that the flashpoint for Savat s mental health slide was his loss ofprivate disability benefits. Unfortunately, by that point, Savat was no longer insured for Title II disability insurance benefits under the Act. III. Step Five With the assistance of a VE, the AU concluded at Step Four of the sequential evaluation process that Savat was unable to return to his past relevant work. (Tr. 3S, 37). Accordingly, he proceeded to Step Five. At this step, the AU determined that plaintiffwas an individual closely approaching advanced age, with a high school education, and no transferable skills. (Tr. 3S, 37). Relying upon VE testimony, the AU found that Savat was capable ofmaking an adjustment to perform other jobs that exist in significant numbers in the national economy. (Tr. 36~37).16 Plaintiff contends that the AU s finding that he had a high school education is unsupported by the record because testing confirmed that he read at an eighth grade level and performed math skills at a sixth grade level. (See, Tr. 24i). In response, the Commissioner seems to suggest that the fact that a claimant obtained a high school diploma is dispositive. However, the regulations provide that the numerical grade level that you completed in school may not represent your actual educational abilities. These may be higher or lower. 20 C.F.R. 404.i564(b). If there is no contradictory evidence, then the Commissioner will use the claimant s numerical grade level to determine educational abilities. Id. 16 The VE identified general clerk and administrative clerk as representative jobs that plaintiff could perform. (Tr. 36, i 8, 274-27S). i7 § Here, there is contradictory evidence. Moreover, if the AU overstated plaintiff s educational abilities, then this arguably tainted his hypothetical to the VE.17 Nonetheless, any error was harmless because the testimony solicited from a VE at a prior hearing was premised upon a hypothetical comprised ofvocational factors consistent with Savat s circumstances, including the ability to read at an eighth grade level and marginal math skills at the fourth grade level. (Tr. ii9-i20).18 Despite these vocational factors and various hypotheticals which incorporated physical and mental limitations more restrictive than those ultimately adopted by the instant AU, the VE identifiedjobs that exist in significant numbers in the national economy that the hypothetical claimant could perform. (Tr. ii9-i32).19 IV. Conclusion The AU was tasked with determining Savat s residual functional capacity for the period prior to January i, 200 i. In so doing, he considered the scant medical record from the relevant period, and other evidence. The evidence was not uniform, and it could have supported a different outcome. However, the AU ultimately grounded his decision upon examinations or evaluations that were most connected temporally to the relevantperiod. Such conflicts in the 17 In fact, there is no indication that AU Bundy s hypothetical to the VE included any vocational considerations at all. (See, Tr. 76-84). The hypothetical contemplated a claimant even older than Savat s age during the relevant period. (Tr. 119). 18 19 Two representative jobs identified by the VE at the unskilled, light exertional level included cashier II and ticket seller. (Tr. i2i). There are approximately 3,iOO jobs for each title in Louisiana. Id. These jobs constitute a significant number ofjobs in the national economy. 42 U.S.C. § 423(d)(2)(A); Johnson v. Chater, i08 F.3d i78, i8i (8th Cir. i997) (200jobs at state level and i 0,000 nationally, constitute a significant number). i8 evidence, including conflicting medical opinions, are for the Commissioner to resolve. Selders v. Sullivan, 9i4 F.2d 6i4, 6i7 (Sth t (S h Cir. i990) (citation omitted); Grant v. Richardson, 44S F.2d 6S6 Cir. i 97 i) (citation omitted). This court may not reweigh the evidence in the record, try the issues de novo, or substitute its judgment for the Commissioner s, even if the evidence weighs against the Commissioner s decision. Newton v. Apfel, 209 F.3d 448, 4S2 (Sth Cir. 2000) (citations and internal quotation marks omitted). That is not to say that the AU s decision is blemish-free, but procedural perfection in the administrative process is not required, and any errors do not undermine confidence in the decision. For the foregoing reasons, the undersigned finds that the Commissioner s decision is supported by substantial evidence and remains free of legal error. Accordingly, The Commissioner s decision is AFFIRMED, and the matter DISMISSED with prejudice. THUS DONE AND SIGNED at Monroe, Louisiana, this ~th day of March, 2009. RENL HAYES U. S. MAGISTRATE JUDGE i9

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