Opinion
CASE NO. 01-4096-SAC
September 23, 2003
REPORT AND RECOMMENDATION
This is an action reviewing the final decision of the Commissioner of Social Security denying the plaintiff disability insurance benefits and supplemental security income payments. (Doc. 14 at 1.) The matter has been fully briefed by the parties, and has been referred to this court for a report and recommendation. The court recommends that the Commissioner's decision be REVERSED, and the case REMANDED for further proceedings, as more fully described herein.
BACKGROUND
Plaintiff Marylin C. Allen seeks disability and supplemental security benefits going back to August 1, 1997. (Doc. 14 at 1.) Around that time, she began to show symptoms that ultimately appeared to stem from a blockage in her right internal carotid artery. See id. at 7-8. Subsequently, she underwent surgery to remove the obstruction. See id. Post-operative examinations indicated that the operation was successful. (Tr. 203.) Sometime thereafter, Allen began to complain of mental confusion and memory loss. (Doc. 14 at 9.) She also alleged significant weakness in her lower extremities. See id.
The transcript of the entire record of proceedings below was filed as an attachment to defendant's Answer (Doc. 9), and will be cited as "Tr." with the relevant page number.
From late-1997 through early-1999, Allen saw numerous doctors in an attempt to obtain relief from her leg weakness. See id. at 9-15. These doctors included various specialists, such as cardiologists and neurologists, as well as a trip to the Mayo Clinic. See id. Unfortunately, no physician ever diagnosed the cause of her ailment. (Tr. 278 (unremarkable CT scan of lumbar spine); 309 (neurophysiologic study reveals no evidence of neuropathy, radiculopathy, plexopathy, or myopathy); 313-15 (neurologist Dr. Zwibelman finds no cause of leg weakness, but recommends further testing); 312, 316-23, 334 (spinal tap shows no apparent cause of leg weakness); 337 (psychologist Dr. Avner Stern finds no mental cause for weakness, and speculates that the weakness is due to a physical condition); 346 (Mayo clinic neurologist Dr. David Dodick says, "I can find no neurological explanation" for patients leg weakness, and speculates that it may be due to a conversion disorder, a mental problem); 353 (cardiologist Dr. Michael Mancina finds no cause of leg weakness, but recommends CAT scan to check for evidence of spinal cord compression); 380 (Dr. John Crane provides medical source statement describing Allen's back, hip, and leg discomfort as "etiology unknown"); 390 (Dr. Mancina describes Allen's leg weakness as "etiology unknown"); 55 (Allen concedes at hearing that no diagnoses has ever been made regarding her leg weakness); 69 (Allen's attorney admits that no doctor has diagnosed a cause for her weakness).) The Commissioner ultimately referred Allen to a psychologist for a psychiatric consult (Tr. 171, 337-38); however, his conclusion was that she suffered no mental impairments. (Tr. 337-38.)
The Commissioner denied Allen's application for benefits, both at the initial stage, and following a request for reconsideration. (Tr. 73, 77.) Plaintiff requested and was granted a hearing before Administrative Law Judge (ALJ) John J. Rubin. After a hearing on the matter, the ALJ concluded that Allen failed to meet the legal requirements for a disability under the Social Security Act, 42 U.S.C. § 301-1397jj. (Tr. 15.) Allen appealed his decision, but the Appeals Council declined review (Tr. 8-9); thus, the ALJ's decision represents the Commissioner's final decision on the matter. Allen now seeks review of the ALJ's decision pursuant to sections 205(g) and 1631(c)(3) of the Act, 42 U.S.C. § 405(g), 1383(c)(3).
STANDARD OF REVIEW
The district court reviews the Commissioner's decision to ensure that the factual findings are supported by substantial evidence in the record and that the correct legal standards were applied. See 42 U.S.C. § 405(g); Doyal v. Barnhart , 331 F.3d 758, 760 (10th Cir. 2003). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Doyal , 331 F.3d at 760 (citation and internal quotation marks omitted). Evidence is not substantial if it is merely conclusory. See Knipe v. Heckler , 755 F.2d 141, 145 (10th Cir. 1985).
DISABILITY DETERMINATION
The Act provides that an individual shall be determined to be under a disability only if the claimant can establish that he has a physical or mental impairment expected to result in death or last for a continuous period of twelve months which prevents the claimant from engaging in substantial gainful activity. 42 U.S.C. § 423(d)(1)(A), (d)(5)(A). The claimant's physical or mental impairment or impairments must be of such severity that he is not only unable to perform his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. Id. § 423(d)(2). The claimant has the burden of proving a disability that prevents him from engaging in his prior work activity. See id. § 423(d)(5)(A). Once the claimant has established such a disability, the burden shifts to the Commissioner to show that the claimant retains the ability to do other work activity and that jobs the claimant could perform exist in the national economy. See Williams v. Bowen , 844 F.2d 748, 751 (10th Cir. 1988).
The Commissioner has established a five-part sequential evaluation process for determining disability. See 20 C.F.R. § 404.1520, 416.920; see also Thompson v. Sullivan , 987 F.2d 1482, 1486 (10th Cir. 1993); Williams , 844 F.2d at 750-52. If at any step in the process the Commissioner determines that the claimant is disabled or is not disabled, the evaluation ends. 20 C.F.R. § 404.1520(a), 416.920(a); see also Thompson , 987 F.2d at 1486.
Step one determines whether the claimant is presently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b), 416.920(b). If he is not, the decision maker proceeds to step two, determining whether the claimant has a medically severe impairment or combination of impairments which significantly limits the claimant's ability to work. 20 C.F.R. § 404.1520(c), 416.920(c). If the claimant is able to make such a showing, the decision maker proceeds to step three, whether the impairment meets or equals one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. § 404.1520(d), 416.920(d). If the claimant's impairment does not satisfy this step, then the decision maker proceeds to step four, where the claimant must show that the impairment prevents the claimant from performing work he has performed in the past. 20 C.F.R. § 404.1520(e), 416.920(e); see also Williams , 844 F.2d at 750-51. At step five, the burden shifts to the Commissioner to show that the claimant retains the residual functional capacity (RFC) to do other work that exists in the national economy. See 20 C.F.R. § 404.1520(f), 416.920(f); Williams , 844 F.2d at 751.
THE ALJ'S DECISION
The ALJ held a hearing on March 4, 1999, at which Ms. Allen was present. (Tr. 38-72.) She was represented by counsel and also had a witness to testify on her behalf. (Tr. 38.) The ALJ issued his decision on May 28, 1999, in which he made the following relevant findings:
Step One: The claimant had not engaged in substantial gainful activity since the alleged onset of her disability, August 1, 1997.
Step Two: Claimant had the following impairments, which collectively were severe — atherosclerotic peripheral vascular disease; status post carotid endarterectomy; hypertension, controlled; corneal scar, left eye; and mild coronary artery disease, asymptomatic.
Step Three: None of claimant's impairments, or combination thereof, meet or exceed any of the listed impairments.
Step Four: Claimant could perform her past relevant work, and was therefore not disabled.
(Tr. 16-22.)
On appeal, plaintiff asserts two points of error in the ALJ's decision. First, that the ALJ failed to properly consider plaintiffs allegations of a mental impairment. (Doc. 14 at 21.) And second, that the ALJ impermissibly rejected the opinions of some of Allen's treating physicians. Id. at 17.
ALLEGATIONS OF MENTAL IMPAIRMENTS
If the claimant produces some objective evidence that she suffers from a mental impairment that may have a material effect on the disability determination, the Commissioner is obliged to investigate it. See Hawkins v. Chater , 113 F.3d 1162, 1167 (10th Cir. 1997). In so doing, the Commissioner must follow the procedure set forth in the governing regulations. Hill v. Sullivan , 924 F.2d 972, 975 (10th Cir. 1991). The applicable procedure is described at 20 C.F.R. § 404.1520a and 416.920a. Application of the procedure must be documented in the ALJ's decision. 20 C.F.R. § 404.1520a(e)(2), 416.920a(e)(2). The procedure commences at Step Two of the sequential disability determination, where a particular method is specified to evaluate the existence of a medically determinable mental impairment. See 20 C.F.R. § 404.1520a(b), 416.920a(b). Moreover, even if a mental impairment is not considered "severe" at Step Two, it must still be considered for its cumulative effect with all other impairments at Steps Two, Four, and Five. 20 C.F.R. § 404.1545(a), 416.945(a).
Allen appears to have alleged a mental impairment in her Reconsideration Disability Report, dated December 4, 1997, wherein she stated, "Remembering is difficult. Deciding how to complete forms is difficult." (Tr. 141.) Moreover, several doctors cited her complaints of mental confusion and memory loss. (Tr. 199, 203, 313, 352.) Furthermore, some physicians diagnosed her with depression or anxiety. (Tr. 229, 236, 237, 245, 344-45, 367.) One of her treating physicians even prescribed Prozac for her perceived depression. (Tr. 257.) Apparently recognizing the possibility of a mental impairment, the Commissioner obtained a consultative psychiatric evaluation for the claimant. (Tr. 171, 337-38.) The results of that exam were later reviewed and documented on a Psychiatric Review Technique Form (PRTF). (Tr. 162-71.) Finally, Allen testified at the hearing before the ALJ that she suffered confusion and memory loss. (Tr. 51.) Further pressing that theory, her attorney questioned the vocational expert (VE) regarding how such mental limitations might affect Allen's ability to perform her prior relevant work. (Tr. 68.)
Despite all this discussion of her potential mental impairments, the ALJ failed to even mention them at Step Two. (Tr. 16-17.) Indeed, he did not even mention the psychiatric evaluation performed at the Commissioner's directive by Dr. Avner Stern, an evaluation that would have supported the ALJ's decision had he concluded that no mental impairment existed. See id. Moreover, the potential impairment was not only material, see Hawkins , 113 F.3d at 1167, but apparently dispositive at Step Four. In response to questions by plaintiffs attorney at the hearing, the VE stated that if Allen suffered from the confusion and memory loss problems of which she complained, she would not be able to perform her past relevant work. (Tr. 68.) Pursuant to 20 C.F.R. § 404.1520a and 416.920a, the ALJ was required to evaluate the claimant for a medically determinable mental impairment at Step Two, and to document application of the evaluation technique in his decision. By contrast, not one word regarding mental impairments appears in the ALJ's decision at Step Two. (Tr. 16-17.) To be sure, there was evidence upon which the ALJ might have concluded that no mental impairment existed (Tr. 337-38); however, it was his responsibility to make some decision and to document it, with the reasoning therefor, in his decision. Having failed to do so, the court has little choice but to recommend that the case be remanded for proper evaluation of mental impairment beginning at Step Two.
Allen also asserts as error the ALJ's failure to complete and attach a PRTF to his decision, thereby violating 20 C.F.R. § 404.1520a (1999). That regulation has subsequently been amended to remove the requirement that the ALJ complete and attach the PRTF. See 20 C.F.R. § 404.1520a(e)(2) (2003). On remand, the ALJ would apply the new regulations, which would not require him to attach the form. Moreover, this error is subsumed within the larger error of failing to properly evaluate the presence of a mental impairment. Accordingly, failure to attach the PRTF does not constitute separate grounds for reversal.
RFC DETERMINATION AT STEP FOUR Considering Complaints of Leg Weakness
In making his RFC determination at Step Four, the ALJ noted that Allen's "only significant complaint is leg weakness." (Tr. 21.) Indeed, it appears from his decision that the ALJ based the majority of his RFC determination on Allen's leg weakness. (Tr. 21-22.) This raises a most perplexing problem, one neither noted by the ALJ, nor raised by counsel on appeal. Nonetheless, it is a problem that merits discussion.In order to be disabled under the Act, the inability to work must be "by reason of any medically determinable physical or mental impairment." 42 U.S.C. § 423(d)(1)(A). This causal link between the inability to work and a medically determinable impairment is further refined at 20 C.F.R. § 404.1520(e) and 416.920(e), where it states, "Your impairment(s) must prevent you from doing past relevant work." See also 20 C.F.R. § 404.1505(a), 416.905(a) (to be disabled, your impairment must be the cause of your inability to work); id. §§ 404.1545(a), 416.945(a) (RFC determination based on how your impairments affect your ability to do work). Finally, the Commissioner's own Social Security Ruling states, "The RFC assessment considers only functional limitations and restrictions that result from an individual's medically determinable impairment or combination of impairments, including the impact of any related symptoms." SSR 96-8P, 1996 WL 374184 at *1 (emphasis added). Accordingly, the Commissioner can only consider limitations at Step Four that are causally connected with an impairment identified at Step Two.
While the inability to walk is a severe limitation, it is not an impairment. An impairment "must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable diagnostic techniques." 20 C.F.R. § 404.1508, 416.908. Moreover, an impairment must be established "by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms." Id. (emphasis added). These regulations are drawn directly from the Act, itself, which provides:
An individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability.42 U.S.C. § 423(d)(5)(A) (emphasis added). The regulations go on to define pain, weakness and fatigue as symptoms, not impairments. See 20 C.F.R. § 404.1529(b), 416.929(b). Accordingly, Allen's leg weakness is a symptom, not an impairment. In order to consider her leg weakness at Step Four, it must accordingly be caused by an identified impairment. See 20 C.F.R. § 404.1505(a), 404.1520(e), 404.1545(a), 416.905(a), 416.920(e), 416.945(a).
Unfortunately, the record is devoid of any diagnosis that associates the claimant's leg weakness with an impairment. While virtually every doctor in the record noted her complaints of weakness, none provided anything beyond speculation as to the underlying medical ailment. (Tr. 313-15 (neurologist Dr. Zwibelman finds no cause of leg weakness, but recommends further testing); 337 (psychologist Dr. Avner Stern finds no mental cause for weakness, and speculates that the weakness is due to a physical condition); 346 (Mayo clinic neurologist Dr. David Dodick says, "I can find no neurological explanation" for patient's leg weakness, and speculates that it may be due to a conversion disorder, a mental problem); 353 (cardiologist Dr. Michael Mancina finds no cause of leg weakness, but recommends CAT scan to check for evidence of spinal cord compression); 380 (Dr. John Crane provides medical source statement describing Allen's back, hip, and leg discomfort as "etiology unknown"); 390 (Dr. Mancina describes Allen's leg weakness as "etiology unknown").) Numerous tests and evaluations were inconclusive. (Tr. 278 (unremarkable CT scan of lumbar spine); 309 (neurophysiologic study reveals no evidence of neuropathy, radiculopathy, plexopathy, or myopathy); 312, 316-23, 334 (spinal tap shows no apparent cause of leg weakness).) The record paints a dire picture of speculation as to the cause of plaintiff's symptoms, followed by evaluations that contradicted that theory, followed by more conjecture. In one series of evaluations, a neurologist hypothesized that the impairment must be neurological, although he could not actually find a neurological ailment. (Tr. 313-15.) Thereafter, a Mayo Clinic neurologist determined that Allen suffered no neurological deficiencies. (Tr. 346.) This neurologist, in turn, suggested that the cause must be psychological. Id. A subsequent psychiatric evaluation by a psychologist determined that she suffered no mental impairment, and that any cause for her leg weakness must be physical. (Tr. 337.) Indeed, plaintiff conceded at the administrative hearing that no cause had ever been diagnosed for her malady. (Tr. 55.) Her attorney stated at the hearing, "the ideology [sic] of her leg weakness has not been explained." (Tr. 69.) The record conclusively shows that no impairment capable of causing plaintiffs symptoms of leg weakness has ever been diagnosed.
The court notes that a mere lack of laboratory-type findings showing a causal link between an impairment and symptoms such as pain, fatigue, and weakness does not automatically foreclose a finding of disability. Certain impairments have been recognized that are identified solely by the claimant's subjective complaints. See, e.g., Sisco v. U.S. Dept. of Health and Human Services , 10 F.3d 739 (10th Cir. 1993) (chronic fatigue syndrome); Owen v. Chater , 913 F. Supp. 1413 (D. Kan. 1995) (fibromyalgia). However, in those cases, a physician or similar acceptable medical source diagnosed the claimant with an impairment (chronic fatigue syndrome or fibromyalgia) capable of producing the claimant's symptoms. Sisco , 10 F.3d at 740; Owen , 913 F. Supp at 1419. By contrast, no acceptable medical source has diagnosed an impairment that would cause Allen's symptoms.
The Second Circuit faced a similar dilemma in Gallagher v. Schweiker , 697 F.2d 82 (2d Cir. 1983). There, the claimant alleged severe pain due to an undiagnosed cause. See id. at 82. In denying the claimant's appeal, the court acknowledge the genuine existence of her pain, but nonetheless found that the Act did not permit a finding of disability unless the pain was caused by an underlying impairment. Id. at 84-85. The Second Circuit went on to discuss the policy undergirding its decision, saying,
Manifestly the Act ties the scope of its benefits to the progress of medical science, permitting a denial of benefits in those instances when the cause of subjective symptoms defies diagnosis. Congress was entitled to conclude that in the allocation of trust funds medical ascertainment of the existence of an abnormality was an appropriate safeguard against the risk of payment for exaggerated claims of subjective pain, even though such a requirement permits denial of payment to some undiagnosed claimants who may truly be in distress. The distribution of public funds not infrequently requires such difficult legislative judgments to be made, and courts are obliged to enforce them.Id. at 85. Gallagher has since been cited with approval by many federal courts. See, e.g., Bunnell v. Sullivan , 947 F.2d 341, 347-48 (9th Cir. 1991); Winn v. Heckler , 762 F.2d 180, 182 (1st Cir. 1985); Smith v. Heckler , 598 F. Supp. 509, 511 (D.D.C. 1984). In Luna v. Bowen , 834 F.2d 161 (10th Cir. 1987), the Tenth Circuit announced virtually the same principle, saying "We have recognized the [Act] requires that a pain-producing impairment, whether psychological or physiological in origin, must be proven by objective medical evidence before an agency decision maker can find a claimant disabled by pain." Luna , 834 F.2d at 163. Like pain, weakness and fatigue are described as symptoms. 20 C.F.R. § 404.1529(b), 416.929(b). Accordingly, the same causal connection between weakness and an underlying impairment must be established. Therefore, on remand, the ALJ may not consider Allen's leg weakness unless he finds that it is due to an impairment identified at Step Two.
Treating Physicians' Opinions
As her last point of error, plaintiff claims that the ALJ improperly rejected statements from her treating physicians. (Doc. 14 at 17.) Allen bases her argument, in large part, on Claassen v. Heckler , 600 F. Supp. 1507 (D. Kan. 1985), wherein the court stated, "Expert opinions of a treating physician as to the existence of a disability are binding on the fact finder unless contradicted by substantial evidence to the contrary." Id. at 1512. If that statement is taken to mean that every unsupported, conclusory statement by a treating physician is to be accorded controlling weight, it was too broad when it was written. See 20 C.F.R. § 404.1527 (1985). To the extent it was an accurate statement of the law, it has long since been overruled. For example, in Castellano v. Secretary of Health and Human Services , 26 F.3d 1027 (10th Cir. 1994), the court concluded that a treating physician's opinion is only entitled to controlling weight if it "reflects a judgment about the nature and severity of the claimant's impairments including the claimant's symptoms, diagnosis and prognosis, and any physical or mental restrictions," and only if the opinion is "well supported by clinical and laboratory diagnostic techniques and if it is not inconsistent with other substantial evidence in the record." Id. at 1029 (citing 20 C.F.R. § 404.1527, 416.927). By contrast, Castellano held that a treating physician's opinion as to the ultimate issue of disability was not binding on the Commissioner. See id.
Plaintiff relies heavily on a medical source statement by her treating physician, Dr. Crane. (Doc. 14 at 18, 20-21.) In the statement, Dr. Crane opined that the claimant could essentially lift no weight, could neither sit nor stand for more than one hour per day, would likely miss work more than four times a month, and was "[i]ncapable of even `low stress' jobs." (Tr. 382-85.) The ALJ completely rejected Dr. Crane's opinion, finding it "wholly unsupported by the objective medical evidence of record and . . . in part inconsistent with claimant's own testimony. (Tr. 21.)
First, Dr. Crane's opinion was clearly not entitled to controlling weight because it was completely unsupported. See 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). Dr. Crane merely worked his way through a pre-printed form checking boxes. Where the form asked for reasons in support of his conclusions, Dr. Crane provided none. (Tr. 382) Furthermore, although the form directed the doctor to attach relevant information in support of his conclusions, none was provided. (Tr. 380.) Accordingly, the only support in the record for Dr. Crane's conclusions were the treatment notes from his clinic. (Tr. 365-69, 395-97.) Those notes indicate that Allen made eight office visits to Dr. Crane between February 1998 and March 1999. See id. Unfortunately, the treatment notes are quite unenlightening. They indicate nothing more than routine office visits and some blood work. See id. It doesn't appear from those notes that Dr. Crane did anything more than keep tabs on the plaintiff while she bounced from one specialist to another. They in no way appear to satisfy the requirement that the physician's opinion be supported by "medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). Accordingly, Dr. Crane's opinion was not entitled to controlling weight.
Even so, the ALJ could not completely reject Dr. Crane's opinion without first evaluating it pursuant to the factors set out in 20 C.F.R. § 404.1527(d), 416.927(d). Although the record must show that the ALJ considered the relevant factors, the ALJ was not required to precisely describe each decisional step. See Hamilton v. Secretary of Health Human Services of U.S. , 961 F.2d 1495, 1500 (10th Cir. 1992). In discussing the reasons for rejecting various statements from treating physicians, the ALJ cited lack of objective support for findings, making opinions beyond the scope of the doctor's expertise, opining on issues reserved to the commissioner, lack of consistency with other evidence in the record, and direct contradiction with the claimant's sworn testimony as reasons for rejecting the various physicians' statements. (Tr. 20-21.) With respect to Dr. Crane's source statement, the ALJ focused most heavily on its contradiction with plaintiffs testimony. See id. Yet, the surrounding discussion suggests that the ALJ was considering the appropriate factors when evaluating the doctors' statements. See id.
In reviewing Dr. Crane's source statement (Tr. 380-86), the court finds that the ALJ's decision to reject that statement was based on substantial evidence. First, as previously noted, Dr. Crane provides little support for his conclusions. The only evidence in the record are his treatment notes, which provide little, if any, discernable support for his conclusions. (Tr. 365-69, 395-97.) Next, like the other physicians in this case, he provides no diagnosis for Allen's leg weakness. (Tr. 380 (leg weakness "etiology unknown").) Finally, his answers to questions 9-14 appear only to be supported by the patient's own statements during her office visits, and are therefore little more than the doctor parroting back plaintiffs own complaints. (Tr. 381-82.)
Plaintiff appears to take the strongest issue with the ALJ's rejection of Dr. Crane's answers to question 15, which covers the claimant's ability to lift, walk, sit, etc. (Doc. 14 at 20-21.) This, however, appears to be the weakest part of Dr. Crane's statement. First, while Crane says that Allen can essentially lift no weight, Allen testified at the hearing that she can lift between 5 and 10 pounds, and can carry a gallon of milk a short distance with no trouble. (Tr. 58.) Thus, the claimant's own testimony contradicts the doctor's opinion. Likewise, Crane opined that Allen could sit no more than fifteen minutes continuously without standing or walking about. (Tr. 383.) Conversely, Allen testified that she had no trouble sitting (Tr. 53), she sat through an hour of church on a weekly basis (Tr. 58), and could ride in a car for 30 minutes before feeling some discomfort in her hips. (Tr. 53.) Hence, once again, Dr. Crane's opinion was overly conservative as compared to the plaintiffs own statements. Finally, the court observes that Dr. Crane's summation of Allen's ability to sit, stand, and walk, along with her required rest in an eight-hour work day is, at best, confusing. (Tr. 385.) The form clearly asks how much time the claimant can sit, stand or walk during an eight-hour work day, and how much time must be spent resting. See id. Dr. Crane indicated that Allen could sit for no more than one hour, stand or walk for no more than one hour, and would need one hour of rest. Id. That leaves five hours completely unaccounted for. Does that imply that she can sit for 1/3 of the day, stand for 1/3 of the day, and then must rest for the remaining 1/3? Or does it mean that she can sit for one hour, stand for one hour, and the remainder of the day must be spent resting? The meaning is unclear, and accordingly unhelpful. Due to the unsupported, conclusory nature of Dr. Crane's opinion, its inconsistency with plaintiffs own testimony, and the ambiguity therein, the ALJ's decision to reject Dr. Crane's opinion was proper, and supported by substantial evidence.
The court takes judicial notice of the fact that a gallon of milk weighs approximately eight pounds.
Allen also asserts that the ALJ improperly rejected a statement by Dr. McNamara in which he found plaintiff to be permanently disabled. (Doc. 14 at 18 n. 2.) Plaintiff seriously mischaracterizes the nature of Dr. McNamara's statement. The cited exhibit is nothing more than an application for a disabled person's license plate. (Tr. 379.) It hardly amounts to a finding of disability. The ALJ rejected that statement because it was completely unsupported by medical evidence and because it was based on a different standard of disability — that of the state of Missouri for purposes of obtaining a disabled parking permit. (Tr. 20.) The only thing that Dr. McNamara's statement could possibly add is an ultimate conclusion of disability. That conclusion being reserved to the Commissioner, and since the statement was unsupported and based on a different definition of disability, the ALJ's decision to reject it was supported by substantial evidence.
Finally, Allen claims that the ALJ erred by not citing any medical source that contradicts the opinion of Dr. Aspinwall, who concluded that Allen could not maintain full-time employment because of her "disabling fatigue." (Doc. 14 at 18 n. 2.) Dr. Aspinwall did not issue that opinion until August 19, 2000, more than a year after the ALJ issued his decision. (Tr. 435.) Hence, it was impossible for the ALJ to address Dr. Aspinwall's assertions. Since the Commissioner has not ruled on Dr. Aspinwall's opinion (other than through the Appeals Council's denial of review), the court offers no opinion on how the doctor's opinion may affect the case. On remand, the Commissioner may consider Dr. Aspinwall's opinion to the extent appropriate under the Act and the relevant regulations.
IT IS THEREFORE RECOMMENDED that this case be remanded for further proceedings (sentence four remand) for the reasons set forth above.
Copies of this recommendation and report shall be electronically transmitted to counsel of record for the parties. Pursuant to 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72(b) and D. Kan. Rule 72.1.4, any party may serve and file written objections to the recommendation within ten (10) days after being served with a copy.