Opinion
CAUSE NO. 1:02-CV-122
October 22, 2002
MEMORANDUM OF DECISION AND ORDER
I. INTRODUCTION
This matter is before the Court for judicial review of a final decision of the defendant, Commissioner of Social Security ("Commissioner"), denying the application of the plaintiff, Patty Carradine ("Plaintiff"), for Disability Insurance Benefits ("DIB") beginning February 3, 1994.
Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636 (c), all parties consenting.
Section 205(g) of the Social Security Act ("the Act") provides, inter alia, "[a]s part of [her] answer, the [Commissioner] shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the case for a rehearing." It also provides, "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. § 405(g).
II. THE PROCEDURAL AND FACTUAL BACKGROUND
A. The Procedural Background
On February 17, 1998, the Plaintiff filed an applications for DIB, alleging an onset date of February 3, 1994. The Plaintiff's claim was denied initially and upon reconsideration. The Plaintiff requested a hearing, and on April 24, 1995, a hearing was held before the Administrative Law Judge Kathleen Donahue ("ALJ Donahue"). Nearly eighteen months later, on September 11, 1996, ALJ Donahue issued her decision wherein she found the Plaintiff not disabled. however, on July 13, 1998, the Appeals Council issued a Notice of Order of Appeals Council remanding the case for further proceedings because ALJ Donahue failed to account for the report of Dr. Samuel Goodloe.
A subsequent hearing was held on April 20, 2000, this time before ALJ Bryan Bernstein ("the ALJ"). The Plaintiff was represented by counsel and testified at the hearing. David Carradine, the Plaintiff's husband, and Robert Bond, a Vocational Expert ("VE"), also testified.
Sixteen months later, on July 18, 2001, the ALJ issued his decision wherein he made the following findings:
1. The claimant met the disability insured status requirements of the Act on February 3, 1994, the date the claimant stated she became unable to work, and has acquired sufficient quarters of coverage to remain insured only through September 30, 1999.
2. The claimant has not engaged in substantial gainful activity since February 3, 1994.
3. The medical evidence establishes that on the date her insured status expired the claimant suffered from upper body pain; fight hand numbness; Scheuermann's disease; and myofascial and fibromyalgic symptomatology, impairments which are severe but which do not meet the equal criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's statements concerning her impairments and their impact on her ability to work on the date her insured status expired are not entirely reliable.
5. On September 30, 1999, the date her insured status expired, the claimant retained the residual functional capacity to perform a limited range of light work. She can stand and/or walk continuously for one hour; occasionally climb ladders; lift ten pounds frequently; lift twenty pounds occasionally; carry twenty pounds; and occasionally push and/or pull ten pounds.
6. The claimant can perform her past relevant work as transport driver.
7. The claimant is 49 years old, which is defined as a "younger individual" ( 20 C.F.R. § 404.1563).
8. The claimant has a high school education ( 20 C.F.R. § 404.1564).
9. The claimant is capable of making an adjustment to work which exists in significant numbers in the national economy. Such work includes employment as a checker (250 jobs in the region), a storage rental clerk (150 jobs in the region), and a routing clerk (250 jobs in the region).
10. The claimant was not under a disability, as defined in the Social Security Act, at any time through September 30, 1999, the date her insured status expired.
(Tr. at 26-27.)
_____Based on these findings, the ALJ determined that the Plaintiff was not entitled to DIB. The Plaintiff requested review by the Appeals Council, which was denied on February 15, 2002, leaving the ALJ's decision as the final decision of the Commissioner. This appeal followed.
The Plaintiff filed her opening brief on August 12, 2002. On September 26, 2002, the Defendant filed a memorandum in support of the Commissioner's decision, and the Plaintiff filed her reply on October 11, 2002.
B. The Factual Background
The Plaintiff was forty-two years old in February 1994, the alleged onset date of disability, a "younger individual" as defined in the Act. See 20 C.F.R. § 404.1563 (c). The Plaintiff obtained a GED equivalency diploma and has previous work activity as a production worker and as an addiction-counseling aide.
The Plaintiff was forty-nine years old at the date of the hearing.
The Plaintiff claims a disability based on her degenerative back disease, scoliosis, lumbar sprain/strain, chronic pain syndrome, myofascial pain syndrome, Scheurmann's disease, symptoms of fibromyalgia, major depressive episode, adjustment disorder with mixed emotional features and somatization disorder.
On February 14, 1993, the Plaintiff slipped on snow and ice while getting into her car. (Tr. at 207.) The next day, she went to Koontz Chiropractic and saw Dr. C.S. McMarrow, D.C., with complaints of right hip pain, mild thoracic pain, neck pain, headaches and left elbow pain. (Id.) On February 22, 1993, Dr. McMarrow, performed an orthopedic and neurologic elevation. (Tr. at 207-209.) He found that the Plaintiff had a reduced cervical and lumbar range of motion with pain. (Tr. at 208.) An X-ray revealed mild kyphosis, mild osteophytic changes at the C4 vertebra in the lumbar spine, mild degenerative disk disease at the C3 and C4 vertebrae, mild right lateral head tilt, and mild hypertrophy in C6 vertebra. In the thoracic spine, he found moderate degenerative disk disease at T3, T4, T5 vertebrae; mild osteophytic changes in T4, T5, and T6 vertebrae; and mild compensatory right lateral thoracic scoliosis. (Id.)In the lumbar spine he found a moderate left lateral scoliosis, mild degenerative disk disease at L2 vertebra, moderate degenerative disk disease at L4 vertebra, and mild facet imbrication at L4-5 and L5-S1 vertebrae. (Id.)Dr. McMarrow diagnosed the Plaintiff with lumbar disk degeneration, low back syndrome and lumbar sprain/strain. (Tr. at 209.)
Lee Smith, physical therapist, evaluated the Plaintiff on March 9, 1993. (Tr. at 245-246.) The Plaintiff complained of muscle spasms in the low back, middle back, and left shoulder. (Tr. at 245.) Her cervical range of motion was reduced, and she exhibited tenderness in the left upper trapezius, mid-thoracic region, along the cervical spine, and at the base of the occiput. (Tr. at 246.) As for therapy, the Plaintiff found cervical traction to be helpful, (Tr. at 244), but certain exercises caused her to complain of "back spasms." (Tr. at 244.)
On April 8, 1993, the Plaintiff saw a rheumatologist, Dr. Kausalya Chandraskehar. (Tr. at 455-456.) Dr. Chandraskehar's physical examination revealed acute muscle spasm, and trigger point tenderness. (Id.)The Plaintiff also had muscle spasm of the left para-spinal muscles. (Id.)Dr. Chandraskehar diagnosed the Plaintiff with fibromyalgia and myofascial pain. (Tr. at 456.) She prescribed Skelaxin, Toradol, Zantac, and continued therapy. (Id.)
The Plaintiff saw a Dr. Chandraskehar again on May 20, 1993. (Tr. at 248.) X-rays of the Plaintiff's cervical spine, suggested disk disease with minimal narrowing of the spinal canal due to bony spurs. (Tr. at 249.)
On June 7, 1993, the Plaintiff saw Dr. Karl Jackson at the Rehabilitation Center for Pain in Indianapolis (the "Pain Center"). (Tr. at 259-262.) Dr. Jackson noted that during the interview she displayed a high level of "pain behavior." (Tr. at 259.) The Plaintiff indicated that she experienced pain during her entire life, and that she often experienced depression, which affected her memory and concentration, causing her to be easily distracted and disoriented. (Tr. at 260.) In addition, the Plaintiff told Dr. Jackson that her sleep was severely impaired, and that she gained weight due to overeating. (Id.)Dr. Jackson diagnosed the Plaintiff with Major Depressive Episode, responsive to her chronic painful condition and associated chronic pain syndrome. (Id.)He thought overall her prognosis for improvement was fair too good. (Tr. at 262.)
On the same day, the Plaintiff saw Dr. Karl Manders at the Pain Center. (Tr. at 263-264.) He noted that the Plaintiff's pain was aggravated by activities including work, weather change, riding in a car, stress, or even laying down. (Tr. at 263.) She told him that the pain was reduced with ice, some exercise, standing, sitting, walking, relaxation, lying down, and changing position. (Id.)Dr. Manders's physical examination revealed diffuse tenderness in the mid and upper dorsal region as well as in the cervical spine, as well as tightness in her paracervical musculature with resistance of motion of the cervical spine in all directions. (Tr. at 263-264.) However, he noted no overt pain behavior. (Tr. at 264.)
Dr. Manders and Dr. Jackson diagnosed the Plaintiff with intractable back pain which was difficult to control with previous treatment, major depressive episodes, ineffective pain management with significant life disruption, excessive muscular tension and anxiety, inability to work, significant pain behaviors, and trigger point/muscle spasms contributing to pain. (Tr. at 256.) They recommended an extensive course of therapy. (Tr. at 257.)
On June 24, 1993, Dr. Manders reported that the Plaintiff had been working with a psychologist on relaxation techniques, which had helped, but she was still quite depressed. (Tr. at 254.) He reported that she seemed to be improving nicely. (Id.)
On July 1, 1993, Dr. Manders reported that the Plaintiff was sleeping well on the Doxepin. (Tr. at 253.) Her muscle spasms had decreased with soft tissue massage and positional exercises. (Id.) She had also been using a transcutaneous electrical nerve simulator. (Id.)
On July 9, 1993, she was discharged from the pain management program at the Pain Center. (Tr. at 251.) Dr. Manders reported that she had a diagnosis of traumatic myofascial pain syndrome, but that she had done well in the pain management program, and was taking medication to help control her pain. (Id.)In physical therapy she had been performing twenty minutes of aerobic activity, and had been given a home exercise program. (Id.)She also demonstrated an ability to control severe muscle spasms in her rhomboids and lower trapezius muscles using ice, stretching and direct pressure. (Id.)In sum, Dr. Manders concluded that occupational therapy had worked, and that she might return to work on July 21, 1993 at her previous position. (Id.)It was recommended that she not independently carry over fifty pounds of luggage at a time, and options should be explored to provide breaks every thirty to forty minutes during her driving excursions. (Id.)Dr. Manders thought her prognosis should be good. (Id.)
On May 14, 1994, Dr. Susan Steffy performed a consultative examination at the request of Social Security. (Tr. at 271-272.) A physical examination revealed that the Plaintiff's gait and station were normal. (Tr. at 271.) Although active range of motion in the neck was slightly decreased, she had a complete passive range of motion. (Id.)Dr. Steffy diagnosed the Plaintiff with was musculoskeletal pain. (Id.)
On August 16, 1994, Dr. Samuel Goodloe, an anesthesiologist in the practice of diagnosis and treatment of pain, evaluated the Plaintiff (Tr. at 296-305.) The Plaintiff told him that her pain is better after relaxing, lying down, with medication, changing positions frequently, and with biofeedback. (Tr. at 296.) His physical examination of the Plaintiff revealed upper extremity strength at 3+ in flexion and 2+ in extension bilaterally. (Tr. at 304.) Strength in the lower extremities was 3+ in flexion/extension bilaterally. (Id.)She also showed tenderness from T1-2 to T9, 10, and 11 vertebrae on palpitation. (Id.)His impression was cervical strain/sprain, thoracic strain/sprain, and posttraumatic injury to the thoracic spine. (Tr. at 296.) His plan was to continue her current medications. (Tr. at 296.)
On September 26, 1994, Dr. Goodloe saw the Plaintiff for a follow-up examination. (Tr. at 293-295.) The Plaintiff reported that driving back and forth to some classes for approximately 30 minutes had increased her overall discomfort. (Tr. at 293.) She also reported using a TENS unit on a full time basis. (Id.)Dr. Goodloe noted that an MRI of the cervical and thoracic spine showed osteophytic spurring at T2-T3 level and T7-T8 level without evidence of disk herniation. (Id.) There was also a significant osteophytic change at the T7-T8 level, where there was a slight flattening of the dorsal cord to the right of the midline. (Id.)X-rays of the cervical and dorsal spine showed loss of lordosis and mild narrowing of C4-CS and CS-C6 disk spaces. (Tr. at 294.)
Lordosis is an abnormal bending or curbing of the spine, generally the lumbar with anterior convexity. See Stedman "s Medical Dictionary, 810 (5th L.Ed. 1981) (hereinafter "Stedman's").
On October 11, 1994, the Plaintiff saw Dr. Goodloe for another follow-up examination. (Tr. at 290-291.) She noted that she was able to go to class on a regular basis, but was unable to attend classes for five or six days due to the thoracic discomfort. (Tr. at 290.) She had discontinued physical therapy because the exercises were producing more aggravation of her discomfort especially in the thoracic area. (Id.)
The Plaintiff next saw Dr. Goodloe on April 29, 1994, and she reported that on a scale of 1 to 10, her pain was a 7 despite no changes in her activity level. (Tr. at 369.) Dr. Goodloe discussed intraspinal infusions and possibly seeking a dorsum column evaluation and stimulation by Dr. Tumer. (Id.)
On May 23, 1995, the Plaintiff reported to Dr. Goodloe a pain level of 8 with no changes in her activity level, and an infusion was schedule for June 1, 1995. (Tr. at 367.)
The Plaintiff was hospitalized at Methodist Hospital from June 1, 1995 through June 7, 1995 for placement of an intraspinal catheter for intraspinal analgesic infusion to attempt to relieve her pain. (Tr. at 335-345.) After placement of the catheter her pain went down from a 9-10 level to a 4-5 level and gradually decreased to a 2-3 level. (Tr. at 336.)
On June 20, 1995, the Plaintiff reported to Dr. Goodloe that her pain level was a 5 with no change in her activity level. (Tr. at 365.) The possibility of nerve stimulation was discussed; however, the Plaintiff decided to await the results of continued physical therapy. (Id.)
By August 8, 1995 her pain level had increased to an 8 with a decreased activity level due to pain in the neck and arms with severe muscle spasms. (Tr. at 363.) Dr. Goodloe encouraged her to see Dr. Turner for evaluation and placement of a dorsum column stimulator implantation. (Id.)
Between December 26, 1995 and December 28, 1995 the Plaintiff was hospitalized at Methodist Hospital for implantation of a spinal cord stimulator. (Tr. at 341-345.)
More than two years later, in a letter dated March 18, 1997, Dr. Goodloe responded to a questionnaire from the Plaintiff's attorney. (Tr. at 346-362.) He enclosed the CPT results, which he found to be objective findings consistent with her severe pain. (Tr. at 346.) He found that her pain levels were consistent with having to spend a portion of each day lying down. (Tr. at 347.) He also noted that she had received bioelectric treatments both at his office and with a home unit, that medication was unsuccessful in controlling her pain, that steroid blocks temporarily relieved the pain, and that she an intraspinal catheter had brought some pain relief (Id.)
On April 29, 1997, the Plaintiff saw Dr. Goodloe and reported a pain level of 7. (Tr. at 416.) She also reported having fallen on her back causing problems with the stimulator. (Id.) Dr. Goodloe noted that she was using her matrix internal home unit 3 to 4 times daily, which allowed her to tolerate the pain. (Id.)
On July 2, July 3, and July 17, 1997 the Plaintiff underwent nerve blocks by Dr. Goodloe. (Tr. at 403-405.) On July 22, 1997 she reported to Dr. Goodloe a pain level of 6.5. (Tr. at 414.) She reported seeing a chiropractor for hip pain. (Id.)
On September 17, September 22, September 24, September 25, October 1 and October 6, 1997 the Plaintiff underwent more nerve blocks. (Tr. at 397-402.)
On October 7, 1997, the Plaintiff reported a pain level of 6 in the right back and 7 in the left back. (Tr. at 412.) Dr. Goodloe recommended increasing the level of her stimulator. (Tr. at 413.)
On November 4, 1997, the Plaintiff reported a pain level of 8. (Tr. at 410.)
On December 4, 1997, she reported a pain level of 8, with decreased activity level. (Tr. at 408.) She had also been unable to drive to Dr. Goodloe's office for her bioelectrical treatments. (Id.)
On April 21, 1998, the Plaintiff reported a pain level of 8 to Dr. Goodloe. (Tr. at 395.) She reported that she had not been able to do much. (Id.)
On July 14, 1998, the Plaintiff reported to Dr. Goodloe that her pain level was a 9. (Id.) She also reported a recent fall which left her unconscious. (Id.)Before the fall, her pain level had been down to 5 as a result of her last block, but now she was sore all over and her stimulator was not working. (Id.)
Dr. Goodloe continued treating the Plaintiff and performed a number of nerve blocks through the remainder of 1998. Indeed, he performed the procedure on July 20, July 22, July 23, July 30, September 10, September 14, September 23, September 24, October 7, and October 8, 1998. (Tr. at 376-381 and 386-389.)
On April 13, 1999, a Functional Capacity Evaluation was performed by a physical therapist at the request of the ALJ. (Tr. at 482-505.) The testing revealed that the Plaintiff was significantly deconditioned. (Tr. at 482-483.) The physical therapist also noted that the testing revealed a number of "invalid" readings. (Tr. at 483.) For example of the 30 possible invalidity criteria, the Plaintiff failed to satisfy 20 of them. (Id.)The physical therapist found that the Plaintiff was unable to perform at the recommended work limit according to NIOSH in 1994. (Id.) He stated that according the DOT she was capable of sedentary work. (Id.)
On July 3, 1999, the Plaintiff went to the Marion General Hospital Emergency Room with complaints of neck and back pain. (Tr. at 524-525.) During the physical examination, she was tender to palpitation in the para-spinal muscle areas and Rhomboid muscle areas of the upper back. (Id.)The Plaintiff was diagnosed with recurrent neck and back pain with spasms. (Id.)
On August 10, 1999, the Plaintiff returned to the Marion General Hospital because of her severe back pain. (Tr. at 522-523.) The emergency room physician noted that the Plaintiff appeared to be in some pain with torticollis to the left. (Tr. at 522.) The plaintiff was also very tender to palpitation of her neck, shoulder girdle, and upper back area, she had slight soft tissue swelling in the right mid-dorsal area with tenderness, she had a limited range of motion of the neck or back, and her gait was antalgic. (Id.)The emergency room physician's impression was chronic pain syndrome with exacerbation of cervical and dorsal myospasm. (Tr. at 523.)
On October 25, 1999, the Plaintiff returned to the emergency room for her back pain. (Tr. at 520-521.) The doctor there did not find any definite spasms on physical exam, but the Plaintiff claimed she had tremendous spasm problems. (Tr. at 520.) The Plaintiff was given a Morphine injection to help control the pain. (Tr. at 521.)
On January 14, 2000, she saw Dr. Kevin E Macadaeg, an anesthesiologist/pain disorder specialist. (Tr. at 534-537.) Dr. Macadaeg noted tenderness in the lower paracervical region and the thoracic paraspinous region. (Tr. at 536.) There was also loss of lordical curvature of the cervical spine, and a decreased range of motion in the thoracolumbar spine. (Id.)There was no evidence of cervical, lumbar or thoracic paravertebral spasm. (Id.)A thoracic MRI showed multiple end plate changes, consistent with thoracic Scheuermann's disease, and she also had degenerative disk/slight disk herniation at the T6-T7 level. (Id.)Dr. Macadaeg cautioned against any further intervention therapies, and noted that the Plaintiff was not a surgical candidate. (Tr. at 534.) He further noted that spinal cord stimulation for mechanical cervical thoracic spine pain typically did not work well in the long term; thus, he recommended against any further use of the stimulator. (Id.)He concluded that the Plaintiff's condition should continue to improve, but that it could take years. (Id.)
On January 26, 2000, Dr. Macadaeg referred the Plaintiff to a physical therapist for further evaluation and therapy. (Tr. at 591.) The physical therapist observed that the Plaintiff had significant forward head posturing and thoracic kyphosis. (Id.)The Plaintiff also demonstrated totoicollis with head tilt to the left, and her left shoulder was elevated relative to the right. ([Id.) She was unable to stay in one position for a long period of time, and she was observed constantly shifting posture/position. (Id.)She had significant tightness in the bilateral levatoris and the bilateral upper trapezius. (Id.)Accessory mobility of the cervical and thoracic spine were not assessed secondary to muscle spasms. (Tr. at 592.) The therapist's assessment was that the Plaintiff demonstrated clinical signs and symptoms associated with Scheuermann's disease with a secondary diagnosis of thoracic degenerative disk and joint disease with fibromyalgia. (Id.)
After two visits for mainly aquatic exercises, the Plaintiff requested to be dismissed from the physical therapy program. (Tr. at 593-594.)
The Plaintiff then saw Dr. Edward J Kowlowitz on January 27, 2000. (Tr. at 568-569.) At that time she rated her pain as a nine out of ten with a combination of aching, burning, and shooting sensations. (Tr. at 568.) During the examination, Dr. Kowlowitz noted myofascial pain in the cervical paraspinals trapezii and rhomboid area tested positive. (Id.)She was tender over the dorsal spinal and thoracic region. (Id.)The trigger/tender points were elicited at the costochondrial junctions and lateral epicondyles. (Id.)X-rays of the thoracic spine showed diminished interverbal disk space consistent with Scheuermann s disease. (Id.)Dr. Kowlowitz diagnosis was myofascial and fibromyalgia symptomology more marked in the upper torso and spinal stimulation with lead failure. (Tr. at 569.)
On February 9, 2000, the Plaintiff returned to Dr. Kowlowitz because of inadequate pain control. (Tr. at 565.)
On March 8, 2000, she saw Dr. Kowlowitz who found that she was compliant with the treatment regimen and was making progress. (Id.)He stated that she was using her medication as prescribed. (Id.)
On April 10, 2000, the Plaintiff saw Dr. Kowlowitz, and explained that she had exhausted her physical therapy benefits. (Tr. at 555.) Dr. Kowlowitz reported that she was looking much better, and was satisfied with her current level of pain management. (Id.)
On May 8, 2000, she reported a small flare of pain. (Tr. at 546.)
On June 13, 2000, the Plaintiff underwent a psychological evaluation by Dr. Henry 6. Martin at the request of Social Security. (Tr. at 611-621.) Dr. Martin took her history regarding her pain, and noted her alcohol problems and treatment. (Tr. at 611-612.)
During the interview the Plaintiff reported severe muscle spasm and pain in her spinal column which she said felt like a limp dishcloth. (Id.)She stated that she had difficulty with her daily activities, and she often needed help getting dressed. (Id.)She noted that her daughter helped her get dressed, and helped her cook and clean. (Id.)She also reported concentration and memory problems, so much so that she often got lost in her own neighborhood. (Id.) During the cognitive examination, the Plaintiff was only able to recall two out of three objects on a five-minute delayed recall, and she recalled six digits forward and four digits backward. (Tr. at 613.) She completed serial 7's in 80 seconds with 3 errors.
The Plaintiff reported that she spent most of her day watching television, reading history or biography books, emailing her family, walking for half an hour, and took infrequent visits to the YMCA. (Tr. at 614.) She reported going to church two or three times a month, and attending appointments and Alcoholics Anonymous groups. (Id.)She also drove a car a couple of times a week to run errands; however, most of her days she paced herself and sometimes had to use ice packs or takes time to lie down when the pain gets too severe. (Id.)She also reported that on some days she didn't get dressed if she had a bad spell, but tried to shower daily. (Id.)She reported sleeping only about four hours at a time. (Id.)
She was given the WAIS-III exam, and scored in the average range of intelligence. (Tr. at 614-615.) She also took the MMPI-II. (Tr. at 615.) Dr. Martin stated that her score on the MMPI-II indicated that she was an intense, anxious individual who developed chronic physical ailments usually resulting from psychological stress and conflicts. (Id.)Furthermore, he noted that these individuals tend to ruminate and become obsessive, but they deny the existence of psychological problems. (Id.)
Dr. Martin diagnosed the Plaintiff with an adjustment disorder with mixed emotional features, somatization disorder, and alcohol dependence in full remission. (Id.)The Plaintiffs Global Assessment of Function was 55. (Id.)
The GAF is the clinician's judgment of the individual's overall level of functioning, but it does not include impairment and functioning due to physical or environmental limitations. A rating of 55 is in the middle of the category which describes moderate symptoms or moderate difficulty in social, occupational, or social functioning. Diagnostic Statistical Manual, 30-32 (4th ed. 2001) (hereinafter "DSM-IV").
Dr. Martin also completed a form regarding the Plaintiffs ability to perform work-related mental activities. (Tr. at 620-621.) He found that she would have "fair" abilities in several areas, including her ability to maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual and maintain an ordinary routine without special supervision; complete a normal work day and work week; and perform at a consistent pace. (Tr. at 620.) He added that her concentration/attention level would be impaired due to her focus on pain. (Tr. at 621.)
III. STANDARD OF REVIEW
To be entitled to Social Security benefits, the Plaintiff must establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months. . . ." 42 U.S.C. § 416 (i)(1); 42 U.S.C. § 423(d)(1)(A). A physical or mental impairment is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). It is not enough for the Plaintiff to establish that an impairment exists. It must be shown that the impairment is severe enough to preclude the Plaintiff from engaging in substantial gainful activity. Gotshaw v. Ribicoff 307 F.2d 840, 844 (4th Cir. 1962), cert. denied, 372 U.S. 945 (1963); Garcia v. Calfano, 463 F. Supp. 1098 (N.D. Ill. 1979).
A five step test has been established to determine whether a claimant is disabled. See Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 482, U.S. 137, 107 S.Ct. 2287, 2290-91 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test as follows:
The following steps are addressed in order: (1) Is the claimant presently unemployed? (2) Is the claimant's impairment "severe"? (3) Does the impairment meet or exceed one of a list of specific impairments? (4) Is the claimant unable to perform his or her former occupation? (5) Is the claimant unable to perform any other work within the economy? An affirmative answer leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than step 3, stops the inquiry and leads to a determination that the claimant is not disabled.Nelson v. Bowen, 855 F.2d 503, 504 n. 2 (7th Cir. 1988); Zalewski v. Heckler 760 F.2d 160, 162 n. 2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). A claimant has the joint burdens of production and persuasion through at least step four, where the individual's residual functional capacity ("RFC") is determined. Yuckert, 482 U.S. at 146 n. 5; 20 C.F.R. § 404.1545, 416.945. At step five the Commissioner bears the burden of proving that there are jobs in the national economy the plaintiff can perform. Herron v. Shalala, 19 F.3d 329, 333 n. 18 (7th Cir. 1994). From the nature of the ALJ's decision to deny benefits, it is clear that step five was the determinative inquiry.
IV. DISCUSSION
Given the foregoing framework, "[t]he question before [this court] is whether the record as a whole contains substantial evidence to support the [Commissioner's] findings." Garfield v. Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) (citing Whitney v. Schweiker, 695 F.2d 784, 786 (7th Cir. 1982); 42 U.S.C. § 405 (g)); Burnett v. Bowen, 830 F.2d 731, 734 (7th Cir. 1987). "Substantial evidence" has been described as "more than a mere scintilla." Anderson v. Bowen, 868 F.2d 921, 923 (7th Cir. 1989). It means, "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. . . ." Id. (quoting Richardson v. Perales, 402 U.S. 389 (1971); see also Allen v. Weinberger, 552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed . . . unless there has been an error of law." Garfield, 732 F.2d at 607; see also Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).
In the present case, the ALJ found that the Plaintiff had not engaged in any substantial gainful activity since the alleged onset date. At step two, the ALJ found that the Plaintiffs alleged physical impairment was severe; however, the ALJ found that the Plaintiffs impairment did not meet or exceed one of the listed impairments under step three. Nevertheless, the ALJ found that the Plaintiffs alleged mental impairments were not severe under step two. Under step four, the ALJ found that the Plaintiff was precluded from returning to her past relevant work. However, under step five, the ALJ found the Plaintiff capable of making a vocational adjustment to perform work a limited range of light work in the region as a checker, storage rental clerk, or a routing clerk.
The Plaintiff contends the ALJ erred by (1) finding that the Plaintiff did not suffer from a "severe" mental impairment under step two of the sequential analysis, (2) using an incorrect legal standard regarding the treating physician rule, and improperly applying the rule, and (3) applying an incorrect credibility standard and improperly assessing the Plaintiffs credibility.
1. The Plaintiff's Mental Impairment
The Plaintiff contends that the ALJ incorrectly determined that the Plaintiffs mental condition was not severe, despite Dr. Martin's finding that she has only a "fair" ability to maintain attention and concentration for extended periods, to perform activities within a schedule, maintain regular attendance, and be punctual, to work with or near others without being distracted by them, to complete a normal workday or workweek, and to perform at a consistent pace.
The Commissioner argues that Dr. Martin's findings and opinions are neither controlling or necessarily conclusive of the Plaintiffs mental condition being severe. Specifically, she points out that because Dr. Martin examined the Plaintiff nearly nine months after the Plaintiffs insured status expired (for DIB purposes), his opinion, is entitled to less weight than medical evidence during her insured period. (Commissioner's Br. in Support, at 9, citing Anderson v. Sullivan, 925 F.2d 220, 222 (7th Cir. 1991)). However, this argument seems misplaced considering the fact that the ALJ apparently afforded considerable weight to Dr. Martin's opinion, despite the fact that it post-dated the Plaintiffs insured period. Indeed, it was the ALJ who required the Plaintiff to be evaluated by Dr. Martin in the first place, and in his decision, the ALJ states that the "only professional evaluation [of the claimant's mental impairment] is the June 2000, psychological evaluation administered by Henry Martin, Ph.D." (Tr. at 25.) The ALJ then goes on to spend nearly one full single spaced page explaining how Dr. Martin's opinion leads to the conclusion that the Plaintiffs mental impairment is not severe. Thus, the ALJ's decision makes clear that he afforded considerable weight to Dr. Martin's opinion.
All of this leads to the more pressing point that the ALJ did not err when he found that the Plaintiffs mental impairments were not severe. A mental impairment is "severe" only if it "significantly limit[s the Plaintiffs] mental ability to do basic work activities." 20 C.F.R. § 404.1521 (a). The Plaintiff argues that because Dr. Martin rated her ability to concentrate, to perform work within a schedule, to complete a workday, and to perform at a consistent rate as "fair," her mental impairment is necessarily severe. However, it is hardly obvious that a "fair" rating in any of these categories automatically makes a condition severe. After all, "fair" means that the "individual can perform the activity satisfactorily some of the time? (Tr. at 620.) Certainly the simple fact that the Plaintiff can perform these tasks satisfactorily some of the time does not indicate that her impairment significantly limits her ability to perform basic work activity. Accordingly, given Dr. Martin's rather unremarkable findings regarding the Plaintiffs alleged mental impairments, the ALJ's decision is supported by substantial evidence.
2. Treating Physician Rule
The Plaintiff next argues that the ALJ improperly assessed the weight to be given to his treating physician, Dr. Goodloe. Specifically, the Plaintiff lodges two complaints: the ALJ applied an incorrect legal standard and the ALJ failed to correctly assess Dr. Goodloe's opinion under the treating physician rule.
Social Security requires a two-prong evaluation of the medical opinions of treating physicians. First, under what is known as the "Treating Physician Rule," the medical opinion of a treating physician must be given controlling weight if the opinion (1) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and (2) is "not inconsistent" with other substantial evidence in the case record. McGraw v. Apfel, 87 F. Supp.2d 845, 853 (N.D. Ind. 1999) (emphasis added); 20 C.F.R. § 404.1527(d)(2) (emphasis added). Second, even if the opinion is not entitled to controlling weight, the physician's opinion is still entitled to deference and must be weighed using the factors set out in the regulations. Id. The regulations also provide that "[w]e will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion." Id. Nevertheless, "the final decision on whether a claimant is disabled or not is a legal one rather than a medical one, and it is for the ALJ to make that decision." Kapusta v. Sullivan, 900 F.2d 94, 97 (7th Cir. 1989).
Codified at 20 C.F.R. § 404.1527(d)(2); 416.927(d)(2); Social Security Ruling 96-2p.
The factors cited include: the length of treatment relationship and frequency of examination; nature and extent of the treatment relationship; supportability (e.g., medical signs and laboratory findings); specialization; and other factors. See 20 C.F.R. § 404.1527 (d)(2)-(d)(6).
The Plaintiff takes issue with the ALJ's characterization of the treating physician rule. In his decision, the ALJ stated "[i]f a treating physician's opinion is consistent with the balance of the medical records, that opinion is accorded great weight in the deliberations about disability." (Tr. at 17) (citing 20 C.F.R. § 404.1527 416.927) (emphasis added). However, this is simply not the correct legal standard provided by the Social Security Administration. Although the distinction between "consistent" and "not inconsistent" may not be readily apparent, SSR 96-2p provides some clarity:
[Not inconsistent] is a term used to indicate that a well-supported treating source medical opinion need not be supported directly by all the other evidence (i.e., it does not have to be consistent with all other evidence) as long as there is no other substantial evidence in the record that contradicts or conflicts with the opinion.
SSR 96-2p (emphasis in original). Moreover, at least two recent cases have discussed the difference between the use of the "consistent" and "not inconsistent" in assessing a treating physician's opinion:
Pursuant to Ruling 96-2p, the ALJ must give controlling weight to [a] treating source's opinion if it is "not inconsistent" with other substantial evidence in the record, accord[,] 20 C.F.R. § 404.1527 (d)(2); the opinion need not, as the ALJ stated, be "consistent" with the record. This is not merely a semantic issue. The "not inconsistent" standard presumes the opinion's prominence and requires the ALJ to search the record for inconsistent evidence in order to give the treating physician's opinion less than controlling weight. Under the standard imposed by the ALJ, the opinion only has controlling weight if the record supports it.Dominguese v. Massanari, 172 F. Supp.2d 1087, 1100 (E.D. Wis. 2001); Lopez-Navarro v. Barnhart, 207 F. Supp.2d 870, 885 (E.D. Wis. 2002).
Nevertheless, while it appears that the ALJ erred by referring to the "consistent" standard rather than the "not inconsistent" standard, such error was harmless. To be entitled to controlling weight under the treating physician rule, Dr. Goodloe's opinion must still be well-supported by medically acceptable clinical and laboratory diagnostic techniques (i.e., objective evidence). See McGraw, 87 F. Supp.2d at 853; 20 C.F.R. § 404.1527 (d)(2). In his decision, the ALl found Dr. Goodloe's opinion was not supported by his own clinical findings or other objective evidence. (See Tr. at 19.) Indeed, in the opinion Dr. Goodloe submitted to the Plaintiff's attorney, he does not explain what objective evidence he relied on in reaching his conclusion that the Plaintiff needs to lie down during the workday; nevertheless, elsewhere, he suggests that the CPT testing constitutes objective evidence which supports his evaluation of the Plaintiffs pain. However, as the ALJ notes, it is difficult to see how the CPT testing supports Dr. Goodloe's assessment of severe pain; after all, the results revealed only a few "mild" and "very mild" sensitivities while most of the tests showed "no abnormalities" whatsoever in nerve sensitivity. (Tr. at 352, 354, 356, 358, 360, 362.) Similarly, X-rays showed only minimal disc spacing (Tr. at 249), an MRI showed only mild narrowing of the cervical spine and a slight flattening of the dorsal spinal cord, but no disc herniation in the thoracic spine (Tr. at 293-94), and an EMG study of the upper extremities failed to demonstrate any abnormalities. Moreover, during Dr. Goodloe's examinations, the Plaintiff was able to walk, hop, squat, and get on and off the examination table without difficulty. (Tr. at 271.) Her range of motion was only slightly decreased in her neck, and she had normal range of motion in her back. (Id.)Thus, because Dr. Goodloe's assessment of the Plaintiffs condition is not well-supported by objective evidence, the ALJ properly discounted his opinion under the treating physician rule.
Nevertheless, the Plaintiff argues that the ALJ failed to otherwise weigh Dr. Goodloe's opinion. The regulations provide a list of factors to consider when evaluating what weight to give a medical opinion. These factors include: (1) the length of the treatment; (2) the nature and extent of the treatment relationship; (3) the supportability of the medical opinion; (4) the consistency of the opinion with the record as a whole; (5) the physician's degree of specialization; and (6) other factors which tend to support or contradict the opinion. 20 C.F.R. § 404.1527 (d)(2)-(6); 416.927. However, in determining the weight to give to a physician's opinion, the ALJ need only "minimally articulate [her] justification for rejecting or accepting specific evidence" Steward v. Bowen, 858 F.2d 1295 (7th Cir. 1988). See also Stephens v. Heckler, 766 F.2d 284, 287-88 (7th Cir. 1985); Zblewski v. Schweiker 732 F.2d 75, 79 (7th Cir. 1984).
In reviewing those factors here, we believe the ALJ properly discounted Dr. Goodloe's opinion. Indeed, the ALJ determined that Dr. Goodloe's opinion was not supported by objective testing and was actually inconsistent with some clinical techniques he performed and the medical record as a whole. Additionally, it is clear that the ALJ considered Dr. Goodloe's specialization, after he described him as an anesthesiologist "in the practice of diagnosis and treatment of pain." (Tr. at 21.) Likewise, we believe the ALJ adequately considered the length of Dr. Goodloe's treatment relationship in considering the weight to give his opinion. Accordingly, the ALJ's decision discounting the opinion of Dr. Goodloe is supported by substantial evidence.
3. Credibility of the Plaintiff
Finally, the Plaintiff contends that the ALJ erred in assessing her credibility because he allegedly applied an incorrect legal standard and improperly evaluated her credibility. The Seventh Circuit has repeatedly held that an ALJ's credibility determination will not be overturned so long as the decision has some support in the record and is not patently wrong. Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001); Diaz v. Chater, 55 F.3d 300, 308 (7th Cir. 1994); Herron v. Shalala, 19 F.3d 329, 335 (7th Cir. 1994). After all, a credibility determination often involves inarticulable elements that "leave no trace that can be discerned in this or any other transcript." Herron, 19 F.3d at 335 (quoting Ehrhart v. Secretary of Health and Human Services, 969 F.2d 534, 541 (7th Cir. 1992). Nevertheless, when credibility determinations "rest on objective factors or fundamental implausibilities rather than subjective considerations such as a claimant's demeanor," courts have greater freedom to review ALJ decisions. Clifford, 227 F.3d at 872 (quoting Herron, 19 F.3d at 335).
First, the Plaintiff complains that the ALJ applied an incorrect legal standard for assessing her credibility. In his decision, the ALJ described the standard for credibility as follows:
In evaluating the claimant's own account, her reliability is critical to the usefulness of her testimony. Reliability is a feature of testimony and allegations made during the application and to professionals during examination and treatment. Reliability is achieved when consistency and verification are available and when a confirmation is established for the extent of the limitations the claimant describes based on the requirements of 20 C.F.R. § 404.1529 and 416.929, and Social Security Ruling 96-7p. When testimony is not reliable, only inadvertent admissions against the interest of the affiant can support a finding.
(Tr. at 17.) The Plaintiff focuses on the final sentence, and argues that it requires an "all or nothing" approach to evaluating her credibility, in contradiction to SSR 96-7p. See SSR 96-7p (ALJ need not totally accept or reject testimony). However, we fail to appreciate the Plaintiffs argument, given that the ALJ made clear that if her testimony was reliable, then it would be found credible. This is significant because the ALJ determined that the Plaintiffs testimony concerning her impairments and their impact on her ability to work were "not entirely reliable." (Tr. at 27.) The Commissioner properly points out that this language does not indicate that the ALJ found the Plaintiff to be completely incredible. Rather the ALJ credited portions of the Plaintiffs testimony (he found her combination of impairments to be severe after all), and discredited those portions found to be inconsistent with other substantial evidence in the record. Accordingly, we believe the ALJ correctly applied SSR 96-7p.
We are uncertain where the ALJ picked up the last sentence of the language quoted above; after all it is not located in any Social Security regulation or ruling. In fact, it appears to be some imprecise distillation of Fed.R.Evid. 804(b)(3) applied in the Social Security setting. However, 42 U.S.C. § 405 (b) provides that "[e]vidence may be received at any hearing before the Secretary even though inadmissible under the rules of evidence applicable to court pmcedure." Nevertheless, because, as discussed infra, we believe the ALJ properly considered and applied the correct standard for credibility, any error that may have resulted from this was harmless.
Nevertheless, the Plaintiff also argues that the ALJ improperly assessed her credibility. The Plaintiff cites to Clifford, 227 F.3d at 872, and argues that the ALJ erred by detailing some of the Plaintiffs daily activities which are inconsistent with her complaints of pain and confusion. (Pl.'s Opening Br. at 21-22) (citing Clifford, 227 F.3d at 872). However, in Cliford the ALJ found the objective medical evidence did not support the claimant's complaints of pain, but rather than pointing to that medical evidence, the ALJ only recounted some inconsistent daily activities. The Seventh Circuit held that relying on inconsistent daily activities alone was insufficient to find a claimant incredible because these activities do not reflect the demands of the workplace. Clifford, 227 F.3d at 872. Nevertheless, the Social Security Rulings make it clear that the ALJ is entitled to consider the Plaintiffs daily activities in assessing her credibility, see SSR 96-7p (daily activities is a factor for credibility). Moreover, in contrast to Clifford, the ALJ did not rely solely on this evidence. Rather, as discussed infra, he detailed all of the objective medical evidence which is inconsistent with her complaints of pain, he noted invalidity findings of an FCE, and noted the fact that the Plaintiff suffers from a somatization disorder which manifests itself through exaggerated symptomology. Accordingly, we believe the ALJ properly discussed the Plaintiffs daily activities in relation to her complaints of pain and confusion.
Next, the Plaintiff faults the ALJ for relying on an invalid FCE as some indication of her credibility (or more properly, her lack thereof), since there is allegedly a debate over whether FCEs accurately gauge musculoskeletal patient's ability to perform work. See Phyllis M. King, et al., A Critical Review of Functional Capacity Evaluations, 78 PHYSICAL THERAPY 852, 862-63 (1998), available at Tr. at 628-42); Deborah E. Lechner, et al., Detecting Sincerity of Effort, 78 PHYSICAL THERAPY 294, 306 (1998), available at Tr. at 654-75. However, we do not believe the ALJ's decision should be reversed simply because the accuracy of functional capacity testing has undergone some academic debate. Indeed, the physical therapist who administered the FCE here noted that of the 30 validity criteria, the Plaintiff failed 20 of them. (Tr. at 483.) Significantly, the physical therapist noted that 18 of these were due the Plaintiffs minimal efforts during the testing, and that physiological responses to different tests indicated that she was giving minimal effort Accordingly, we believe the ALJ's reliance on the invalid FCE is justified and supported by substantial evidence.
The Plaintiff also cites to another document which was apparently prepared at the behest of Social Security. (See Pl. Opening Br. at 23) (citing Analysis of Functional Assessment of Instruments for Disabilities/Rehabilitation Programs: Report Reviewing and Commenting on West at Approach to Functional Assessment, Virginia Commonwealth University Medical College of Virginia, Dept. of Physical Medicine and Rehabilitation.) However, this document, once available from Social Security, is no longer available and the Plaintiff concedes he is merely relying on a summary of it in a treatise. Thus, because this document is not available to the Court or the Commissioner (or the Plaintiff for that matter) it carries no authority. Besides, as we note, this is merely part of an on-going academic debate.
The Plaintiff next faults the ALJ for discounting her testimony based on her somatization disorder, which according to the DSM-IV, can manifest itself in a tendency to describe her physical complaints in "colorful, exaggerated terms." DSM-IV at 486-87. Although the Plaintiff claims that her somatization disorder actually caused her pain (a tenuous argument at best), the ALJ was justified in noting that the Plaintiff suffers from a condition which manifests itself through the tendency to exaggerate her complaints.
Finally, the Plaintiff contends the ALJ improperly discounted her testimony by discussing how her complaints are not consistent with objective medical evidence. However, the ALJ went to great efforts to catalogue the various objective testing that is inconsistent with the Plaintiffs testimony. Accordingly, we see no error and find that the ALJ's credibility determination is supported by substantial evidence.
CONCLUSION
Thus, because the decision of the ALJ is supported by substantial evidence, it is AFFIRMED. SO ORDERED.