Opinion
Civil No. 00-2451 (JRT/ESS).
March 31, 2002.
Edward C. Olson, Minneapolis, Minnesota, for plaintiff.
Lonnie F. Bryan, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Minneapolis, Minnesota, for defendant.
ORDER REJECTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Plaintiff Sandra L. Charles is suing the Commissioner of Social Security ("Commissioner"), seeking judicial review of the Commissioner's denial of her application for disability insurance benefits. Plaintiff moved for summary judgment, asking this Court to reverse the Commissioner's decision. The Commissioner filed a cross-motion for summary judgment. This matter is now before the Court on the Commissioner's objections to the Report and Recommendation of the Magistrate Judge dated December 19, 2001. The Court has conducted a de novo review of the objections pursuant to 28 U.S.C. § 636 (b)(1)(C) and D. Minn. LR 72.1(c)(2). For the reasons set forth below, the Court rejects the Report and Recommendation of the Magistrate Judge.
BACKGROUND
Plaintiff filed her current application for disability insurance benefits on May 12, 1998, alleging that she could not work because of back and neck injuries and arthritis. Plaintiff's application was denied initially and upon reconsideration. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), which was held on April 27, 1999 before ALJ John Kraybill. Plaintiff testified at the hearing, as did an impartial medical expert ("ME"), Dr. Andrew Steiner, and an impartial vocational expert ("VE"), Ms. Julietta Harren. The ALJ denied plaintiff's application in a decision issued August 17, 1999.
Plaintiff filed an earlier application for benefits on January 15, 1997. This application was denied by an Administrative Law Judge on April 14, 1998. This application is still pending before the Appeals Council.
Plaintiff was born on January 5, 1947, and was 52 years old at the time of the hearing. She has a G.E.D., and worked for many years as an assembler of printed circuit boards. She also worked briefly in a seafood store. In February 1992, plaintiff injured her back and neck at work. She was treated by Dr. Lee Rock, who prescribed anti-inflammatory medication and physical therapy. Plaintiff experienced relief from the neck pain, but her back pain persisted. In August 1992, plaintiff had surgery to repair her back, but lower back pain persisted.
Plaintiff returned to work in November 1992 and assumed lighter duties than before. Plaintiff held this job until she was laid off in January 1995. Nine months later, plaintiff found another job as an assembler of circuit boards. Plaintiff stated that she left this job six months later because of shoulder pain, though she had previously reported that she left because her employer would not file an injury report. Plaintiff found work at a seafood store, but left after one month because, she claimed, the amount of standing was too much for her.
At some point in 1994, Dr. Rock prescribed anti-inflammatory medication for plaintiff's back pain. She continues to take 1000 mg. of this medication daily. Dr. Rock also treated plaintiff in April 1996 for overuse bursitis in her shoulder, and in August 1996 for anemia and hypothyroidism, for which he prescribed hormone replacement and monthly vitamin shots. In October 1996, Dr. Rock referred plaintiff to a rheumatologist after she complained of joint pain in her feet, hands, shoulder, and thigh. The rheumatologist found that plaintiff suffered from osteoarthritis and degenerative joint disease. Dr. Rock recommended physical therapy to restore plaintiff's conditioning.
In connection with her application for benefits, plaintiff or her medical records were examined by several physicians. In July 1998, plaintiff was examined by Dr. Lawrence Jedlicka. Dr. Jedlicka took x-rays, and concluded that plaintiff could lift ten pounds infrequently, five pounds frequently, and that she could stand, walk, and sit for ten minutes at a time before changing positions. (Tr. at 416.) Dr. Jedlicka also noted that plaintiff should not do any strenuous or frequent bending, pushing, or pulling. (Id.) Dr. Francis Pecoraro did not examine plaintiff, but he reviewed her medical records, and opined that plaintiff could lift twenty pounds occasionally and ten pounds frequently, and could stand, walk, and sit six hours in an eight-hour work day. (Tr. at 435-43.) Dr. Pecoraro's opinion was reviewed and affirmed by Dr. Thomas Chisholm. (Tr. at 443.)
In August 1998, plaintiff had a resurgence of back pain, and she was again examined by Dr. Rock. He noted that plaintiff had done nothing to exacerbate her condition, but she nevertheless had increasing pain in her lower lumbar spine. Dr. Rock prescribed additional medication. On April 30, 1999, three days after the hearing, Dr. Rock wrote a letter to plaintiff's counsel, which was entered into the record. (Tr. at 446.) In the letter, Dr. Rock stated that he agreed with Dr. Jedlicka's conclusions, and would not modify any of the restrictions that Dr. Jedlicka noted. (Id.) Dr. Rock added that during his most recent examination of plaintiff, he advised her that she should "not stand for more than four hours per workday. Initially, when she returned to work, she should limit it to a four-hour workday until such time as she has had to acclimate." (Id.)
Dr. Andrew Steiner testified at the hearing as the medical expert. He opined that plaintiff could lift ten pounds and could spend an unlimited time on her feet if she is permitted to move around. (Tr. at 70.) He further opined that both sitting and standing in place should be limited to ten to fifteen minutes, and repetitive neck motions, as well as repetitive bending, twisting, stooping, kneeling, and crawling, should be precluded. (Id.)
At the hearing, the ALJ posed a hypothetical question to the vocational expert. The ALJ asked the VE to assume a 52-year-old woman with a G.E.D. and plaintiff's work history, who has the same pain impairments and medical history as plaintiff. The ALJ further asked the VE to assume that this hypothetical individual was limited to lifting ten pounds occasionally, could not make repetitive neck movements or perform repetitive bending, twisting, kneeling, crouching, or crawling. (Tr. at 75.) This individual could not sit or stand in one place for more than ten to fifteen minutes, but there would be no limitation to this individual's time on her feet as long as she could move around. In response, the VE testified that such an individual could not perform plaintiff's past relevant work, but that she could perform work that fell in between the light and sedentary categories. (Tr. at 75-77.)
In determining whether plaintiff is disabled, the ALJ followed the five-step analysis codified at 20 C.F.R. § 404.1520. First, the ALJ determined that plaintiff has not engaged in substantial gainful activity since the alleged onset of her disability. In steps two and three, the ALJ found that plaintiff's impairments are "severe," but that none of them meet or equal impairments listed in the regulations. In the fourth step, the ALJ determined that plaintiff has the residual functional capacity ("RFC") for a range of work that does not require lifting more than ten pounds occasionally, has no limit on time spent on her feet in an eight-hour work day as long as she could move around, did not require sitting or standing in one place for more than fifteen minutes at a time, and did not require repetitive neck motion or repetitive bending, twisting, kneeling, crouching, or crawling. (Tr. at 30.) Finally, in the fifth step, the ALJ determined that plaintiff can perform other jobs that exist in significant numbers in the national economy, such as that of a security guard, a stock checker, a machine tender, and an office helper. Thus, the ALJ found that plaintiff is not disabled.
Plaintiff filed for review of the decision with the Appeals Council, which denied the application for review on September 15, 2000. The ALJ's decision thus became the final decision of the Commissioner.
ANALYSIS I. Standard of Review
The Court may reject the ALJ's decision only if it is not supported by substantial evidence on the record as a whole. Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994); 42 U.S.C. § 405(g). Even if the Court might have weighed the evidence differently, it may not reverse the decision when there is enough evidence in the record to support either outcome. Culbertson, 30 F.3d at 939; Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992).
II. Magistrate Judge's Findings and Commissioner's Objections
The Magistrate Judge found that the ALJ should not have discounted the opinion of plaintiff's treating physician, Dr. Rock. Doing so, the Magistrate Judge found, led the ALJ to craft an incorrect hypothetical, which in turn tainted the VE's response, and caused the ALJ to determine the wrong RFC. Thus, the Magistrate Judge concluded that the ALJ's decision was not based upon substantial evidence, and recommended a remand to determine the correct RFC.
The key factual issue here is the amount of time that plaintiff may stand on her feet in an eight-hour workday. The ME, Dr. Steiner, and the consulting physicians, Drs. Pecoraro and Chisholm, all agree that plaintiff is able to stand on her feet for at least six hours in an eight-hour day, as long as she can move around. Dr. Jedlicka stated that plaintiff can stand for ten minutes at a time before changing positions, but offered no opinion as to how long in an eight-hour day plaintiff may stand. Dr. Rock asserted that he agrees with Dr. Jedlicka's conclusions, but added that plaintiff should not stand for more than four hours per workday.
The Report and Recommendation reflected some dispute over what Dr. Rock's full opinion is. In his letter, Dr. Rock stated that when plaintiff "returned to work, she should limit it to a 4-hour workday." (Tr. at 496.) (emphasis added). The Magistrate Judge correctly noted that this is somewhat ambiguous. The ALJ believed that "it" referred to time spent standing at work. The Magistrate Judge, however, believed that the letter imposes a "hard four hour limit on standing for plaintiff while counseling that [plaintiff's] workday should initially be no longer than four hours, but may be extended to eight hours a day. . . ." Report and Recommendation at 14.
Generally, the Court must "defer heavily" to the findings and conclusions of an ALJ. Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001). In the present case, the Magistrate Judge acknowledged that the letter was ambiguous, but chose to adopt his own interpretation of the letter rather than rely on the ALJ's reading. If called upon to make this decision, the Court would be inclined to defer to the ALJ on this factual determination. However, the Court finds it unnecessary to resolve this question. The Magistrate Judge and the ALJ agree that whatever the total length of the workday, Dr. Rock recommended a total four-hour limit on standing. (Report and Recommendation at 14. This issue — the total amount of time spent standing — is the only question relevant to the Court's determination.
The key legal question is whether Dr. Rock's opinion was properly discounted by the ALJ. The Magistrate Judge faulted the ALJ's reliance on the opinions of Dr. Jedlicka, Dr. Steiner, and Drs. Pecoraro and Chisholm. The Magistrate Judge determined that none of these opinions constitute substantial evidence, and that the ALJ therefore erred by "disregard[ing] Dr. Rock's opinion in favor of . . . other physicians whose opinions . . . do not constitute substantial evidence." Report and Recommendation at 15. See Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000) (holding that a treating physician's opinion should be granted controlling weight if it is well-supported by medical evidence and is not inconsistent with the other substantial evidence in the record). The Magistrate Judge further stated that "while Dr. Rock's opinion might not be entitled to controlling weight, it is entitled to some weight and may not be disregarded." Report and Recommendation at 15. The Commissioner objects, arguing that the Magistrate Judge did not grant the appropriate deference to the ALJ's weighing of the evidence. See Culbertson, 30 F.3d at 939 (holding that if an ALJ's decision is based upon substantial evidence, the Court may not reverse the ALJ even if it might have weighed the evidence differently).
The opinion of a treating source is entitled to greater weight and deference than that of a non-treating source. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000); Ghant v. Bowen, 930 F.2d 633, 639 (8th Cir. 1991). Nevertheless, the opinion of a treating source is not conclusive in determining disability. Cunningham v. Apfel, 222 F.3d 469, 502 (8th Cir. 2000). The medical opinion of a treating source is controlling only where the opinion is well supported by medically acceptable clinical and laboratory diagnostic techniques, and is not inconsistent with other substantial evidence. 20 C.F.R. § 404.1527(d)(2); Holmstrom v. Massanari, 270 F.3d 715, 720 (8th Cir. 2001); Singh, 222 F.3d at 452. Therefore, if the treating source's opinion is inconsistent with other substantial evidence in the record, it will not be afforded controlling weight.
A close look at the record reveals that the ALJ did not "disregard" Dr. Rock's opinion. In fact, the ALJ considered Dr. Rock's opinion and weighed it in the final decision. The ALJ declined, however, to give Dr. Rock's view "significant weight." (Tr. at 25.) This is because the ALJ found that the record as a whole contained substantial contradictory medical evidence. Specifically, the ALJ determined that Dr. Rock's opinion was conclusory and unsupported by any specific medical evidence, such as clinical or laboratory diagnostic information. See Piepgras v. Chater, 76 F.3d 233, 236 (8th Cir. 1996) ("A treating physician's opinion deserves no greater respect than any other physician's opinion when [it] consists of nothing more than vague, conclusory statements."). The ALJ also noted that Dr. Rock's opinion was contradicted by other medical evidence in the record, particularly that of Dr. Steiner, who stated that plaintiff may stand for an unlimited time if she can move around, and that of Dr. Jedlicka, who noted no restriction on standing in an eight-hour day.
The Court agrees with the Magistrate Judge that Dr. Jedlicka's opinion does not contradict Dr. Rock. Although Dr. Jedlicka opined that plaintiff can "stand, walk and sit for ten minutes at a time" before changing positions, he offered no opinion about the total number of hours per day that plaintiff may stand. (Tr. at 416.) "[T]he absence of an opinion does not constitute substantial evidence." Lauer v. Apfel, 245 F.3d 700, 705 (8th Cir. 2001). In Lauer, a physician was never asked, and never offered an opinion about whether the plaintiff could engage in work-related activities. Id. In the present case, Dr. Jedlicka offered no opinion on the total length of time plaintiff may stand on her feet. Because this issue is so central to the difference of opinion between the various physicians, the Court does not agree with the Commissioner that Dr. Jedlicka's silence on the issue "could be fairly read by the ALJ as no restriction" on time spent standing. (Def. Obj. to Report and Recommendation at 4.)
Although Dr. Jedlicka's opinion does not constitute substantial evidence to contradict Dr. Rock, the Court finds that the testimony of Dr. Steiner, the impartial medical expert, does constitute substantial evidence. Dr. Steiner listed the impairments that served as a basis for his opinion, and referenced several specific pieces of medical and diagnostic evidence in the record. (Tr. at 70.) In contrast, Dr. Rock's letter cited no laboratory or diagnostic materials. (Tr. at 446.) An ALJ may discount the opinion of a treating physician "if other medical assessments are supported by superior medical evidence." Holmstrom, 270 F.3d at 720. The Court determines that Dr. Steiner's assessment was supported by superior medical evidence. Furthermore, the Court finds that the ALJ gave "good reasons" for his decision to give more weight to Dr. Steiner's opinion than to that of Dr. Rock. See id. (holding that whatever weight the ALJ accords the treating physician's opinion, the ALJ "must give good reasons for that weighting."). The record shows that the ALJ acknowledged Dr. Rock's opinion, and proceeded to give a detailed explanation for why he gave Dr. Rock's view minimal weight. (Tr. at 25-26.) Therefore, the Court determines that the ALJ properly declined to give significant weight to Dr. Rock's recommendation, even though he is plaintiff's treating physician.
The ALJ further found that plaintiff's use of medications, course of medical treatment, work history, and daily activities are not consistent with disabling pain and symptoms. (Tr. at 26-28.) These factors, combined with the foregoing discussion, convince this Court that the ALJ's determination was based upon substantial evidence upon the record as a whole. Therefore, the Magistrate Judge's recommendation will be rejected.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, the Court SUSTAINS defendant's objection [Docket No. 20] and REJECTS the Magistrate Judge's Report and Recommendation [Docket No. 16]. Accordingly, IT IS HEREBY ORDERED that:
1. Defendant's Motion for Summary Judgment [Docket No. 13] is GRANTED.
2. Plaintiff's Motion for Summary Judgment [Docket No. 11] is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.