The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff Wanda Joyce Church ("plaintiff"), who is represented by counsel and proceeding in forma pauperis, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "defendant") denying plaintiff's application for Supplemental Security Income benefits under Title XVI of the Social Security Act ("Act").*fn1
In her motion for summary judgment, plaintiff contends that the administrative law judge ("ALJ") in this case erred: (1) by not finding "changed circumstances" sufficient to rebut the presumption of continuing non-disability in light of "significant changes in plaintiff's medications" for her mental issues (Mot. for Summ. J. at 8-9); (2) by rejecting the opinion of plaintiff's treating physician, Dr. Demetra Stamm, given that Dr. Stamm's opinion was "consistent with" the treating records of other physicians (id. at 14-15); (3) by rejecting the opinion of treating physician Dr. Stamm given that his opinion is bolstered by a record showing "significant changes in [plaintiff's] medication," such as an increase in dosage of Abilify for mood swings (id. at 16-17); (4) by giving weight to the opinions of consultative and non-examining physicians who were unaware of and thus "failed to consider" plaintiff's "large increase in dosage of Abilify from 8/18/09 to 3/4/10" and other records (id. at 17, 20); (5) by crediting the opinion of consultive examiner Dr. Cross although she is a psychologist rather than a psychiatrist, although she "failed to consider" plaintiff's increased dosage of Abilify, and although plaintiff disputes Dr. Kara Cross' interpretation of a memory test she administered to plaintiff (id. at 19-20); and (6) by rejecting the vocational expert's opinion that, in response to questioning by plaintiff's counsel, plaintiff would be unable to perform past relevant work (id. at 20-21). Plaintiff also argues that the Appeals Counsel erred for these same reasons when it failed to remand the matter to the ALJ. (Id. at 21-22.)
Defendant filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Def.'s Opp'n & Cross-Motion for Summ. J. ("Opp'n"), Dkt. No. 20.) Plaintiff did not file a reply memorandum in support of her motion. For the reasons stated below, the court denies plaintiff's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.
This case differs from the typical Social Security case because plaintiff previously applied for and was denied social security benefits on two other occasions.*fn2 As discussed below, the existence of a prior denial of benefits triggers a presumption of continuing non-disability, which is at issue here.
On May 30, 2002, plaintiff filed an application for supplemental security income benefits, which was denied initially and upon reconsideration (the "First Decision").*fn3 (Admin.
Additionally, to the extent the undersigned uses the present tense in referring to or describing plaintiff's alleged conditions or functional abilities, or the ALJ's or Appeals Council's characterizations of the same, the undersigned clarifies that such references are to plaintiff's conditions or functional abilities at the time of the ALJ's or Appeals Council's decision, unless otherwise indicated.
Record ("AR") 33.) An ALJ issued a decision denying benefits on March 12, 2004. (Id.) The ALJ issuing the First Decision found that plaintiff had severe impairments including "neck pain and left upper extremity neuropathy" but that plaintiff "did not have a severe mental impairment." (AR 36-37.)
On April 21, 2005, plaintiff filed another application for Supplemental Security Income benefits, which was denied initially and upon reconsideration. (AR 12.) On November 14, 2007, an ALJ issued a decision denying benefits (the "Second Decision"). (Id.) The ALJ issuing the Second Decision applied the presumption of continuing non-disability, and found that "new and material evidence" overcame that presumption with respect to physical impairments but not mental impairments, and ultimately denied benefits because plaintiff could perform sedentary work with certain limitations. (AR 34, 36-38, 43.) Specifically, the ALJ found that the plaintiff's "mental impairments continue to be non-severe" given that "[t]reatment records provide few objective mental status examination findings" and "[t]he record does not document that the claimant has undergone mental health treatment." (AR 37-38.) The ALJ also found that the record did not indicate that plaintiff's functioning was significantly impaired by any mental disorder, and that there was no evidence of worsening in plaintiff's functioning since the prior decision. (AR 38.) The Second Decision concluded that plaintiff had "severe" impairments of "degenerative disc disease of the cervical spine and status post cervical fusion with related degenerative joint disease of the left hip at the graft site." (AR 36.) The ALJ who issued the Second Decision also found that plaintiff had the residual functional capacity ("RFC") to "perform the full range of sedentary work." (AR 38.) ////
The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.
On August 14, 2008, plaintiff filed a third application for Supplemental Security Income benefits, which was initially denied on November 5, 2008, and upon reconsideration on January 22, 2009. (AR 12.) Plaintiff requested a hearing before an ALJ, and the ALJ conducted the hearing on October 26, 2009. (AR 12.) Plaintiff was represented by counsel at the hearing and testified. (AR 12, 48-60.) A vocational expert, Ms. Susan L. Creighton-Clavel, also testified at the hearing. (AR 12, 60-64.) On February 18, 2010, an ALJ issued a decision denying benefits ("Third Decision"). (AR 12-23.) This Third Decision is the decision at issue in this case.
The ALJ issuing the Third Decision applied the presumption of continuing non-disability, found that it had not been rebutted (AR 23), and adopted the RFC assessment from the Second Decision. (AR 21.) The ALJ issuing the Third Decision also found that "[a]s in the previous ALJ decision . . . the claimant has the following severe impairments: status post cervical fusion with residual degenerative disc disease and degenerative joint disease of the left hip at the graft site." (AR 15.)
The Third Decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AR 1-8.) Plaintiff subsequently filed this action, which arises from the Third Decision.
B. Summary of the ALJ's Findings in the Third Decision In issuing the Third Decision, the ALJ conducted the required five-step evaluation and concluded that plaintiff was not disabled within the meaning of the Act.
At step one, the ALJ found that plaintiff had not engaged in substantial gainful employment since August 14, 2008, the alleged date of disability onset. (AR 15.)
At step two, the ALJ "adopt[ed] the prior ALJ decision" and found that plaintiff had "severe" impairments of "status post cervical fusion with residual degenerative disc disease and degenerative joint disease of the left hip at the graft site." (Id.) The ALJ clarified that "the presumption of continuing non-disability has not been rebutted by evidence of new impairments that were not evaluated in the prior decision." (AR 13.) The ALJ found that plaintiff's "medically determinable mental impairments of depression, post-traumatic stress disorder, and anxiety, considered singly and in combination, do not cause more than minimal limitation in the claimant's ability to perform basic mental work activities and are therefore nonsevere."*fn4 (AR 15.)
In determining that there was no evidence supporting the presence of an increasingly severe mental impairment or a new impairment, the ALJ analyzed whether plaintiff's evidence met the "Paragraph B" criteria for evaluating mental disorders.*fn5 (Id.)
In connection with that analysis, the ALJ rejected the opinion of treating physician Dr. Stamm, who opined in part that plaintiff had a "fair" ability to understand and remember short, simple instructions, and that plaintiff had "poor" understanding and remembering of detailed or complex instructions. (AR 16 (citing AR 377-78 (Dr. Stamm's Medical Source Statement -- Mental, dated Sept. 29, 2009).)
The ALJ rejected Dr. Stamm's opinion on grounds that it was unsupported by objective medical evidence in the record and because it conflicted with Dr. Stamm's own treating note, which chronicled plaintiff's history of "mild" mood swings and depression. The ALJ also rejected the opinion in light of evidence that plaintiff's medication controlled her mental condition, and given the lack of evidence that plaintiff's mental functioning was worsening. (AR 16-17.)
The ALJ also found that, contrary to Dr. Stamm's conclusions, conclusions by state agency sources reflected that plaintiff's "mental impairments were not severe" and that the sources "assessed no mental functional limitations." (AR 15.) The ALJ described a lack of evidence of ongoing treatment and the presence of evidence reflecting plaintiff's "generally good functioning and activities of daily living." (Id.) The ALJ explained that plaintiff's treatment records "did not contain observations that would indicate she had a severe mental impairment." (AR 15-16.) The ALJ further explained that the record reflects only "mild" limitations in plaintiff's functioning and reflects "no psychiatric hospitalizations, no 5150-holds," and no "periods of decompensation of extended duration." (Id.) The ALJ concluded that plaintiff's alleged mental impairments were "nonsevere" given that, after rejecting Dr. Stamm's opinion, the record revealed "no more than a 'mild'" limitation as to the first three functional areas of the Paragraph B criteria, and "no" episodes of decompensation of extended duration as to the fourth functional area of that criteria. (AR 17.) The ALJ concluded that plaintiff, at most, had only "nonsevere" mental impairments. (Id.)
At step three, the ALJ determined that plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed in the applicable regulations. ...