Nickerson v. Astrue, No. 3:2007cv00921 - Document 37 (N.D. Tex. 2009)
Court Description: Memorandum Opinion and Order: Plaintiff Darrell Nickerson, the surviving spouse of Karolyn Nickerson, seeks judicial review of a final adverse decision of the Commissioner of Social Security pursuant to 42 U.S.C. $ 405(g). For the reasons stated herein, the hearing decision is affirmed. (see order) (Ordered by Magistrate Judge Jeff Kaplan on 2/6/09) (klm)
Download PDF
<![CDATA[
IN THE I.INITED STATESDISTRICTCOURT NORTHERNDISTRICTOF TEXAS DALLAS DIVISION DARRELL NICKERSON,o/b/o KarolynNickerson, Deceased Plaintiff. VS. MICHAEL J. ASTRUE, of Commissioner SocialSecuriw Defendant. MEMORANDUM $ $ $ $ $ $ $ $ $ $ $ NO.3-07-CV-092I-BD OPINION AND ORDER review of Plaintiff DarrellNickerson,the survivingspouse KarolynNickerson,seeksjudicial of of a final adversedecisionof the Commissioner Social Securitypursuantto 42 U.S.C. $ 405(g). For the reasonsstatedherein,the hearingdecisionis affirmed. I. and On November2l ,2003,KarolynNickersonappliedfor disabilityinsurance supplemental Act,42U.S.C.$401, etseq. securityincome("SSI")benefitsunderTitlesllandXVloftheSecurity After her applications were denied initially and on reconsideration,Karolyn requesteda hearing before an administrative law judge. However, Karolyn died before this hearing was held. At the time of her death, Karolyn was 40 yearsold. She had a high school equivalencydiploma with two years of college credit and past work experienceas a certified medical assistantand a fast food gainful activity sinceNovember I ,1999. in employee. Karolyn had not engaged substantial of Following the deathofhis wife, plaintiff filed a noticeof substitution partiesandrequested anotheradministrativehearing. That hearingwas held on December20,2005. At the conclusion of the hearing, the ALJ found that Karolyn was not disabled prior to her death and therefore not entitled to disability or SSI benefits. Although the medical evidence establishedthat Karolyn suffered from disordersof the spine with chronic pain and depression,the judge concludedthat the severity of those impairments did not meet or equal any impairment listed in the social security regulations. The ALJ further determinedthat, prior to her death,Karolyn had the residual functional capacity to perform a limited range of light work, but could not return to her past relevant employment. Relying on the testimony of a vocational expert, the judge found that Karolyn was a capableof working as a housekeeping employee,a janitor, a generaloffice clerk, an assembler, Plaintiff sorter,andahandpacker*jobsthatexistedinsignificantnumbersinthenationaleconomy. appealedthe hearingdecisionto the Appeals Council. The Council affirmed. Plaintiffthen filed this action in federal district court. il. In two groundsfor relief, plaintiff contendsthat: ( I ) the ALJ improperly evaluatedKarolyn's mental impairments and her subjective complaints of pain; and (2) substantialevidence does not support the finding that Karolyn could perform other work in the national economy. A. is whetherthe Commissioner's Judicialreview in socialsecuritycases limited to determining decision is supportedby substantialevidenceand whether the proper legal standardswere used to the evaluate evidence.See42 U.S.C.$ a05(g);Ripleyv. Chater,67F.3d 552,555(5th Cir. 1995). mind might acceptto Substantialevidenceis defined as "such relevantevidenceas a reasonable 14 . Ri s u p p o r t a c o n c l u s i o n . " c h a r d s o n v . P e r a l e s , 4 O 2 U . S . 3 8 9 , 4 0 l , 9 l S . C t2 0 , 1 4 2 7 , 2 8 L . E d . 2 d 842(1971);Austinv. Shalala,994F.2dll70,1174(sthCir. 1993).Itismorethanascintillabut less than a preponderance. Richardson,9l S.Ct. at 1427. The district court may not reweigh the evidence or substitute its judgment for that of the Commissioner, but must scrutinize the entire record to ascertainwhether substantialevidencesupportsthe hearingdecision. Hollis v. Bowen,837 F.2d1378,1383(5th Cir. 1988). A disabledworker is entitled to monthly social securitybenefitsif certain conditions aremet. 42 U.S.C. $ a23(a). The Act defines "disability" as the inability to engagein substantialgainful activity by reasonof any medically determinablephysical or mental impairment that canbe expected to result in deathor last for a continuedperiod of l2 months. 1d. $ 423(d)(lXA); Cookv. Heckler, 750 F.2d 391,393 (5th Cir. 1985). The Commissionerhas promulgateda five-step sequential evaluation processthat must be followed in making a disability determination: 1. The hearing officer must first ascertainwhether the claimant is engagedin substantialgainful activity. A claimant who is working is not disabledregardless the medical findings. of 2. The hearine officer must then determinewhether the claimed impairmeni is "severe." A "severe impairment" must significantly limit the claimant'sphysical or mental ability to do basic work activities. This determinationmust be made solely on the basisof the medical evidence. 3. The hearing offrcer must then determine if the impairment meets or equals in severity certain impairments described in Appendix I of the regulations. This determination is madeusing only medical evidence. 4. If the claimant has a "severe impairment" covered by the regulations, the hearing officer must determine whether the claimant can perform his past work despiteany limitations. 5. If the claimant doesnot have the residual functional capacity to perform pastwork, the hearingofficer must decidewhether the claimant can perform any other gainful and substantial work in the economy. This determinationis made on the basis of the claimant's age, education,work experience,and residual functional capacity. Seegenerally,20 C.F.R. $ 404.1520(b)-(0. The claimanthas the initial burden of establishinga disabilityin the first four steps this analysis. Bowenv. Yuckert,482 of U.S. 137,146n.5, 107 S.Ct. 2 2 8 7 , 2 2 9 4n .5 ,9 6 L .8 d .2 d 1 1 9 (1987) . denthenshiftstotheComm issioner tos how that Thebur theclaimantis capable ofperformingwork in thenational economy. Afinding thattheclaimant Id. is disabled not disabled anypoint in the five-step or at reviewis conclusive terminates and the analysis. Lovelqce Bowen,8l3F.2d55,58 (5thCir. 1987). v. In reviewingthe proprietyof a decisionthata claimantis not disabled, court'sfunction the is to ascertainwhether the record as a whole containssubstantialevidenceto support the Commissioner's final decision. The court weighs four elements determine to whetherthere is (2) substantial evidence disability:(1) objective of medical facts; diagnoses opinions oftreating and physicians; subjective (3) andexamining evidence painanddisability; (4) theclaimant's of and age, v. education, work history.Martinez Chater, F.3d 172,174(5th Cir. 1995), and 64 citing llren v. the Sullivan,925F.2d 123 126(5th Cir. 1991 TheALJ hasa dutyto fully andfairly develop facts , ). relatingto a claim for disabilitybenefits.Ripley,67 F.3dat 557 If the ALJ doesnot satisffthis . justified.Id. However, procedural perfection not is is duty,theresulting decision not substantially ruling only if the claimant showsthat his required. The court will reversean administrative F.Supp.980,984 rightswereprejudiced. Smithv.Chater,962 substantive OI.D.Tex. 1997). B. ratherthana bipolar Plaintiff challenges finding thathis wife suffered from depression the personality disorder. Karolyn's mentalimpairment, or borderline HadtheALJ properly characterized plaintiff believes judgewouldhavegivenmoreweightto hersubjective the complaints painand of foundthat shelackedthe residual functionalcapacity performanygainfulandsubstantial work. to givencontrolling Plaintifffurtherargues theALJ should that have weightto theopinions MHMR of counselors, whosetestingrevealed Karolyn's that mentalimpairment wassevere enough prevent to her from working. 1. The medical evidenceestablishes that, prior to her death,Karolyn Nickerson suffered from an affective disorder alternately diagnosedas bipolar disorder and borderline personality disorder. (Compare at 243,280,282,286,297,300,304,359, Tr. &365 with id. al283,29I,294,314,317, 351, 359, 365,& 367). Although the ALJ foundthat Karolyn sufferedfrom severe "chronicpain and depression,"the judge determinedthat Karolyn was capableof performing severallight, unskilled jobs that did not require independentdecisionmaking or more than incidental interpersonalcontact. (Seeid. at 38-39). The judge also found that Karolyn's subjectivecomplaints of pain were credible only "to the extent that they are consistentwith the frndings of this decision." (Id. at36). According to plaintiff, the ALJ would have given more weight to Karolyn's complaints of disabling pain had the judge recognizedthat depression was merely one symptom of his wife's bipolar or borderline personalitydisorder. In a thoroughand well-reasoned decision,the ALJ explainedwhy shebelievedthat Karolyn had the residual functional capacity to perform a limited range of light work: At the hearing,medical experttestimonywas provided by psychiatrist Hellmut Tauber,MD. Dr. Tauberreviewedthe medicalevidenceof record, and testified that claimant had failed back syndrome associated with a prior injury to the lumbar spineoccuning in 1996 and subsequent surgicalrepair in 1997. Dr. Tauberwent on to say that claimant suffered from long-standingchronic pain syndrome in addition to an affective disorder alternately diagnosed as major depression, bipolar disorder,and evenborderlinepersonalitydisorder. Dr. Tauber indicated that the record did not reveal any evidence of psychosis, however. Dr. Tauber's testimony is supported by consultativeexaminationfindings from July of 2004. At that time, claimant reporteda substantialimprovement in her mood with useof psychotropic medications.Also, no sleepor appetite disturbance was noted although claimant recountedintermittent crying spellsand low energy. It was additionally reportedthat claimant had no history of suicide attempt or psychiatric hospitalization. On mental status examination, claimant was somewhat lethargic but appearedin no obvious distress while siuing for a prolonged period despite her complaints of chronic pain. Claimant'smood was depressed and her affect restricted; otherwise, memory and concentrationwere within normal limits. Bipolar disorder,not otherwise specified,in partial remission was diagnosedand a global assessment functioning of (GAF) scoreof 60 was assigned. In accordance with the Diagnostic and Statistical Manual of Mental Disorders, a GAF score of 60 denotes only moderate symptomology and not a psychiatric impairmentof disablingseverity. On cross-examination, counselquestioned Tauberregardingthe Dr. longitudinal nature of claimant's pain. Dr. Tauber, however, responded that there were no objective findings in the record to support claimant's degreeof pain and that her symptoms decreased after epidural steroid injections. Moreover, Dr. Tauber suggested the possibility of narcotic pain medication dependence.Counsel also questioned Dr. Tauber regarding claimant's longstanding mental illness and its relation to her chronic pain. He responded that features of borderline personality disorder were often manifestedin physical illnessandclaimant's mentalimpairmentwas simply not of disabling severitv. medicalrecords, Tauberopined Dr. Basedon his review of claimant's have sustained the demands of light work that claimant could (unskilled in nature)with occasionalpostural limitations and limited interpersonal contact and the undersigned accords considerable with the objectiveevidence weight to this testimonyasit is consistent as a whole. Pursuant to Social Security Ruling 96-6p, the of undersignedhas additionally consideredthe assessment the state physicianssimilarly agencymedical consultants[ ]. The stateagency limited claimant to the exertional demands of light work with occasional postural manuevers[sic] and some degree of mental restrictions. The undersignedadoptsthe stateagencyconclusion as (includingthe opinion it is consistent with othersignificantevidence of Dr. Tauber) and it is well supportedby the other objective medical findings. The undersigned has also considered the claimant's subjective allegations in accordancewith the provisions of Social Security Ruling 96-7 and finds them credible to the extent that they are with the findines of this decision. consistent (Tr. 35-36) (internal citationsomitted). The social security regulations establish a two-step process for evaluating subjective complaints ofpain and other symptoms. First, the ALJ must considerwhether there is an underlying medically determinablephysical or mental impairment that could reasonablybe expectedto produce the pain or othersymptoms alleged.SeeSSR96-7p,1996WL 374186 *2 (Jul.2,1996). Where at such an impairment hasbeenproved, the ALJ must evaluatethe intensity, persistence,and limiting effects of the symptomsto determinewhether they limit the ability to do basic work activities. Id.; seealso 20 C.F.R. $ 404.1529. In additionto objectivemedicalevidence, ALJ shouldconsider the the following factorsin assessing claimant'scredibility: the 1. The individual'sdaily activities; 2. The location, duration, frequency, and intensity of the individual's pain or other symptoms; 3. Factorsthat precipitate and aggravatethe symptoms; 4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5. Treatment, other than medication, the individual receivesor has received for relief of pain or other symptoms; 6. other than treatmentthe individual usesor has Anv measures used to relieve pain or other symptoms; and 7. Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. SSR 96-7p, 1996 WL 374186at *3. Although the ALJ must give specific reasonsfor making a credibility determination,"neitherthe regulationnor interpretivecaselawrequires that an ALJ name, enumerate,and discusseach factor in outline or other rigid, mechanicalform. It suffices when the administrative decision is sufficiently specific to make clear that the regulatory factors were considered." Princev.Barnhart,4lS F.Supp.2d 863,871(E.D. Tex.2005),citingShavev. Apfel, (5thCir. 2001). 238F.3d592,595 Here,the ALJ citedto the applicable regulations, summarized evidence, articulated the and legitimatereasons finding that Karolyn'scomplaints disablingpain werenot credibleto the for of extentalleged. It is clear from the context of the hearingdecisionthat the ALJ gaveadequate consideration theregulatory to factors.See, Salgado Astrue,2Tl Fed.Appx. v. e.g. 456,2008WL 828945at *6 (5th Cir. Mar. 28, 2008) (upholdingcredibility determination made by ALJ notwithstanding failure address regulatory to factor); each Undheimv. Barnhart,2l4Fed.Appx.448, (same); 2007WL 178062 Prince,4l8F.Supp.2dat (same). at*2 (5thCir.Jan.19,2007) 871 Nor from all medicalevidence suggests wife wasprecluded his doesplaintiff point to anyobjective that work activity. To the contrary,mental and physicalresidualfunctional capacityassessments physicians performedby stateagency show that Karolyn could performa limited rangeof light, legalstandards in Because ALJ used proper the the Tr. & unskilledwork. (See at 184-87 189-96). pain,the hearing is decision supported by complaints disabling of Karolyn's subjective evaluating substantial evidence. a. Plaintiff further arguesthat the ALJ should have given controlling weight to the opinions of of MHMR counselors, measured Karolyn'sglobal assessment functioning("GAF") who repeatedly at no more than 45--a scorethat indicatesa seriousimpairment in social,occupational,or school functioning, including the inability to keep a job.r (See,e.g. Tr. at 243,283,288, 300, 319). ' GAF is a standardized a measureof psychological,social,and occupationalfunctioningused in assessing patient'smental health. SeeBoyd v. Apfel,239 F.3d 698, 700 n.2 (5th Cir. 2001). The GAF scale rangesfrom 100, denoting superior functioning, to l, indicating that the patient is in persistentdangerofseverely hurting herselfor others, has a persistent inability to maintain minimal personal hygiene, or has engagedin a serious suicidal act with a clear expectationof death. Brownv. Barnhart,285 F.Supp.2d9l9,924 n.7 (S.D. Tex,2003), citing AmericanPsychiatric at Association, Dr,qcNosrrc eNo Sreflsrrcal MnNuer oF MENTALDISORDERS 32 (4th ed. 1994). The court initially observesthat a low GAF score is not determinative of a disability. See, e.g.Sambulav.Barnhart,285F.Supp.2d 815,825(S.D.Tex. 2002);Alvarezv. Barnharr,No. SA0l-CA-0958-FBN, 2002WL31466411 at *8 (W.D. Tex. Oct. 2,2002); Gloverv. Massanori, No. 3-00-CV-2088-AH, 2001WL 1112351at*7 (N.D. Tex. Sept.14,2001). "While the GAF is a test used by mental health practitioners with respect to planning treatment and tracking the clinical progressof an individual in global terms,the ALJ is not bound to considerits resultsat the exclusion of other medically reliable evidence." Alvarez,2002 WL 31466411at *8. The hearing record includes an evaluationperformed by J. LawrenceMuirhead, Ph.D., a clinical psychologist,who diagnosedKarolyn as having bipolar disorder, not otherwise specified, in partial remission. At the time of the evaluation" Dr. Muirhead observed that: [Karolyn] complained of lumbar ailment but was in no obvious while seated distress during the courseof the evaluation.Her speech was monotonic and produced at a normal rate. Her attitude was plaintive and shestruggledwith a compromisedfrustration tolerance. Her mood was depressiveand her affect was restrictedin range. Her thought processes were relevant and goal directed with good development.On a testof immediaterecall, shewas able conceptual to repeat six digits forward and four digits backward. In a test of delayed recall, she was able to rememberthree of three presented items after a five-minute delay. There was no evidenceof psychotic processor marked impairmentof reality testing. Intellectually,she to appearedto function in an averagerange. Her judgment appeared affect. Her sensoriumwas be partially compromisedby depressive clear. Shewas able to correctly speciff both her date of birth and the date of evaluation. She understoodthe purposeof the evaluation. With respectto her working capacity, she made the statement,"I get upseteasily." (Tr. at 238). A GAF test administeredby Dr. Muirhead resulted in a score of 60, indicating that Karolyn had only moderate symptoms or moderate difficulty in social, occupational, or school functioning. See American PsychiatricAssociation,DncNosuc AND SrertsrtceL MANUALoF MsNrRr DtsononRsIV-TR (DSM IV-TR) at34 (4th ed. 2000). Thosefindings were supported by Dr. Hellmut Tauber, a psychiatrist, who testified at the administrative hearing that Karolyn's GAF score of 45 was "artificially low," and that she could be expectedto sustainfull-time employment notwithstandingher mental impairments. (SeeTr. at395-98). Dr. Tauberbasedon his opinion on the lack of objective medical evidence that Karolyn had any psychotic manifestations, hospitalizations, episodes decompensation. (Id.). In light of this evidence, ALJ did not err or of the in discreditingthe resultsof the GAF test administered MHMR counselors. by The court also notes that the MHMR counselorswho evaluatedKarolyn Nickerson are not medicalsources" "acceptable whoseopinionsareentitledto controllingweight. Zumwalt v. Astrue, 220 Fed.Appx. 770,2007 WL 853206at *9 (lOth Cir. Mar. 22,2007);seealso Johnsonv. Apfel, No. 98-0674-AH-G, 2000 WL 208741 at *2 (S.D. Ala. Feb. 17, 2000) (licensed professional doctors, counseloris not an "acceptable medicalsource"). Only licensedphysiciansor osteopathic licensed or certified psychologists,licensed optometrists, licensed podiatrists, and qualified pathologistsareconsidered"acceptable medicalsources" who canprovide evidence speech-language impairment. See20 C.F.R. $$ 404.1513(a) that a claimant suffersfrom a medically determinable medical source,"the ALJ was entitled & 416.913(a).Without contrary evidencefrom an "acceptable to rely on the opinions of Dr. Muirhead, a licensed psychologist, and Dr. Tauber, a licensed physician, both of whom concludedthat Karolyn did not have a disabling mental impairment.2 C. In his second ground for relief, plaintiff contends that the ALJ posed an improper hypotheticalquestionto Molly Meloy, a vocationalexpert,that failed to include all the limitations associatedwith Karolyn's mental impairments. At the hearing, the judged askedMeloy: 2 Plaintiff also criticizes the ALJ for failing to referencecertain MHMR records in the hearing decision. (^See Plf. MSJ Br. at I l). However, the ALJ is not required to mention or discussthe contentsof every medical report and assessment containedin the administrative record. SeeOkolie v. Astrue,No. 4-07-CV-0485-Y, 2008 WL 1947103at *6 May 2,2008). CN.D.Tex. Could the hypothetical [person] with the claimant's education and work experience . . . are there jobs available, let's see, light work, uncomplicatedsimple. Occasionalpostural and incidental contact with thepublic and supervisors. Are there suchjobs? (Tr. at 400) (emphasis added). Meloy responded that sucha personcould work as a housekeeping employee,ajanitor, and a generaloffice clerk. (ld. at400-01). Plaintiff now arguesthat the phrases "uncomplicated simple" and "incidental contact with the public and supervisors"are vague, confusing, and fail to take into account Karolyn's inability to follow more than "routine step instructions" and inability to perform work requiring "independentdecision making" or "more than incidental interpersonal contact." (Plf. MSJ Br. at 12-13). A hypothetical questionto a vocational expertcannotprovide substantial evidencesupporting incorporates the disabilitiesof the the denial of benefitsunless: (l) the hypotheticalreasonably all claimant recognized by the ALJ; and (2) the claimant or her representative is afforded the SeeBoydv.Apfel,239F.3d698,706-07(5thCir. opportunitytocorrectdeficienciesinthequestion. 2001);Bowlingv. Shalala,36F.3d431,436(5thCir.1994).Thereisnorequirementthat,inposing a hypothetical, the ALJ use specific diagnosticor symptomaticterms where other descriptivewords define the claimant'simpairments. SeeHoward v. Massanari,255 F.3d or phrases can adequately posedto the vocationalexpertincorporated 577,582 (8th Cir. 2001). In this case,the hypothetical all the mental limitations recognizedby the ALJ and credibly establishedby the record. Plaintiff, who was represented counselat the administrative hearing, was given a full and fair opportunity by the to cross-examine vocational expert. (SeeTr. at402-03). By describingKarolyn asbeing capable of doing "uncomplicated, simple" work, the ALJ adequatelyaccountedfor her limited ability to judgment. Howard,255 F.3d at 582 handle complex intellectualtasksor to exerciseindependent (hypotheticaldescribingclaimant as capableof doing simple, routine, repetitivetasksadequately accounted for finding of borderline intellectual functioning and deficiencies in concentration, persistence, pace). Similarly,use of the phrase "incidental contact with the public and or supervisors" reasonably incorporated the limitation that the job require no more than "incidental interpersonalcontact." Accordingly, thereis substantialevidenceto supportthe finding that Karolyn could perform other work in the national economy. CONCLUSION The hearingdecisionis affrrmedin all respects. SO ORDERED. DATED:February 6,2009. JUDCE MAGISTRATE STATES
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
