Opinion
CIVIL ACTION No. 02-2542-KHV
October 9, 2003
MEMORANDUM AND ORDER
Sandra A. Daley appeals the final decision of the Commissioner of Social Security to deny her disability benefits under Title n of the Social Security Act, 42 U.S.C. § 401 et seq. This matter is before the Court on Plaintiffs Brief (Doc. #9) filed June 1, 2003, which the Court construes as a motion for judgment. For reasons set forth below, the Court sustains plaintiff's motion in part.
Procedural Background
On October 20, 1999, plaintiff filed her disability application with the Social Security Administration ("SSA"). She alleged a disability onset date of April 22, 1999. Plaintiff's benefit application was denied initially and on reconsideration. On May 24, 2001, the administrative law judge ("ALP') concluded that plaintiff was not under a disability as defined in the Social Security Act and that she therefore was not entitled to disability benefits. On August 23, 2002, the Appeals Council denied plaintiff's request for review. The decision of the ALJ stands as the final decision of the Commissioner. See 42 U.S.C. § 405(g), § 1383(c)(3).
Factual Background
The following is a brief summary of the evidence presented to the ALJ.Sandra A. Daley is 57 years old. She suffers from pain and limitations secondary to left knee arthritis with chondromalacia, left foot plantar calcaneal spur with degenerative changes of the talonavicular joint, benign positional vertigo and discoid lupus. Transcript Of Proceedings Before The Social Security Administration("Tr.") at 17, attached to defendant's Answer (Doc. #6) filed March 20, 2003. The ALJ concluded that these conditions are severe and cause more than minimal restrictions in plaintiff's ability to perform basic work activity.Id.
From 1982 through May of 1999, plaintiff worked as a collections representative for an insurance company. Plaintiff's former job was very detail oriented and stressful. Tr. 56. Plaintiff testified that she stopped working in May of 1999 because she could not stay awake in the afternoon and she was extremely stressed out. Tr. 32. Plaintiff testified that she cannot return to her former job at this time because she does not have the stamina. Tr. 56.
In addition to the severe impairments that the ALJ identified, plaintiff has a history of significant chest pain and depression. On July 17, 1998, Kevin Ring, M.D. examined plaintiff and diagnosed her with affective disorder, chest pain and hypertension. Tr. 372.
On January 5, 1999, Steven Simon, Ph.D. examined plaintiff for pain management. Tr. 315. Dr. Simon diagnosed plaintiff with chronic neck pain from muscle fatigue.
On February 23, 1999, C. Erik Nye, M.D. examined plaintiff. Tr. 313. Dr. Nye reported that plaintiff's left knee had been getting progressively worse over the past several years and that plaintiff found ? difficult to walk, to bend or to kneel. Dr. Nye diagnosed plaintiff with early degenerative arthritis in her left knee with chondromalacia and patellofemoral arthritis.
On March 31, 1999, Kathy McCarthy, a physical therapist, reported that plaintiff was unable to work due to pain. Tr. 262.
On May 10, 1999, Dr. Ring examined plaintiff for follow up on her peptic ulcer disease, sinusitis and affective disorder. Tr. 370. Dr. Ring found that plaintiff's affective disorder may have been caused by her job so he decided to wait until plaintiff quit her job to see if her symptoms resolved.
On May 26, 1999, plaintiff quit her job as a collections representative for the insurance company. On June 10, 1999, Dr. Ring re-examined plaintiff. Tr. 370. He noted that plaintiff's sinusitis resolved after taking Levaquin and that her peptic ulcer disease resolved after therapy. Dr. Ring found, however, that plaintiff's affective disorder was still a large problem. He noted that plaintiff had quit her job but that she was under a tremendous amount of stress taking care of her mother and interacting with her family. Dr. Ring increased the concentration of plaintiff s Zoloft prescription.
On July 29, 1999, Dr. Ring re-examined plaintiff and noted that her affective disorder was poorly controlled. Tr. 368-69. He again increased her Zoloft prescription.
On August 30, 1999, Dr. Ring examined plaintiff for follow up on her affective disorder, hyperlipidemia and osteoarthritis. Tr. 367. He found that plaintiff's affective disorder was better controlled with the increased concentration of Zoloft, but that she still had feelings of despair.
On September 4, 1999, Dr. Ring admitted plaintiff to the hospital for chest pain and vertigo. Tr. 305. On September 5, 1999, Dr. Ring discharged plaintiff. He determined that plaintiff's chest pain was likely gastrointestinal in origin and he discontinued her prescription of Vioxx. He found that her dizziness most likely was benign positional vertigo and he prescribed Antivert. Tr. 305.
On September 9, 1999, E. Kent Stevenson, M.D., a psychiatrist, examined plaintiff. He diagnosed her with major depression. He prescribed Effexor and a decreased concentration of Zoloft. Tr. 333.
On October 4, 1999, Dr. Stevenson examined plaintiff. He noted that plaintiff was still depressed. Tr. 331. He prescribed Zoloft and Effexor. Id
On October 25, 1999, Dr. Stevenson examined plaintiff. Tr. 330. He noted that plaintiff was anxious but that her overall symptoms were "a bit better." Id.
On November 8, 1999, Michael E. Ryan, M.D. examined plaintiff for dizziness. Tr. 337. Dr. Ryan noted plaintiff had a history of chest pain, thyroid disease, arthritis, depression, reflux esophagitis, reflux disease and fluid restriction.
On November 15, 1999, Bradley, R Kwapiszeski, M.D. performed cataract surgery on plaintiff's left eye. Tr. 600.
On December 27, 1999, Dr. Stevenson again examined plaintiff. He noted that plaintiff was anxious and felt that she was "in another world." Tr. 359. He found that plaintiff's depression had regressed. Dr. Stevenson prescribed Effexor and Zoloft.
On December 29, 1999, at the request of Disability Determination Services (DDS), Grant Edwards, Ph.D., a psychiatrist, examined plaintiff. Dr. Edwards diagnosed major depression by history. Dr. Edwards found that plaintiff's statements were consistent with the records provided by DDS and were consistent throughout the examination. He found plaintiff credible. Tr. 340. He assessed that plaintiff had responded well, but not fully, to treatment. He determined, however, that plaintiff likely could not return to her former job because (1) she continued to find routine interactions with others to be overwhelming, (2) she tired easily, and (3) her performance on attention and concentration tasks, while accurate, was slow. Dr. Edwards concluded that she would likely not be successful at full time work
On January 18, 2000, state psychiatric consultant Dean T. Collins, M.D. reviewed plaintiff's medical records related to her mental impairment. He noted that plaintiff alleged fibromyalgia, headache, chest pain, cataracts, affective disorder, depression, arthritis, fatigue, and positional vertigo. Dr. Collins noted that plaintiff had a medically deteiminable impairment (affective disorder — major depression), but that her impairment was not severe. Tr. 386. He indicated that plaintiff suffered from a disturbance of mood, accompanied by a full or partial manic or depressive syndrome, as evidenced by depressive syndrome characterized by sleep disturbance or decreased energy. Tr. 388.
On January 24, 2000, Dr. Stevenson examined plaintiff. He noted that she was not able to handle stress and that her progress was unchanged. Tr. 358. Dr. Stevenson prescribed Effexor and Zoloft.
On February 8, 2000, Dr. Ring examined plaintiff. He noted that plaintiff had worsening problems with arthritis in her legs. Tr. 381. Dr. Ring diagnosed plaintiff with arthritis and he prescribed Vioxx. He noted that he would eventually have to replace her joints.
On March 20, 2000, Dr. Stevenson examined plaintiff because of pain in the back of her head. Tr. 448. He continued to prescribe Zoloft and Effexor.
On April 6, 2000, Gail Roberson, R.N., M.N., A.R.N.P., evaluated plaintiff. Tr. 450-51. Roberson noted that plaintiff had intermittent chest pain, fatigue and shortness of breath with activity.
On April 20, 2000, state psychological consultant George Stern, PhD. completed a Psychiatric Review Technique form. Tr. 376. Dr. Stern noted that plaintiff appeared to have a severe impairment based onher depression. Dr. Stern indicated that plaintiff had a Listing 12.04 Affective Disorder, Tr. 374, i.e. disturbance of mood, accompanied by a full or partial manic or depressive syndrome, as evidenced by major depression. Tr. 378. Dr. Stern also indicated that plaintiff had moderate difficulties in maintaining social functioning. Tr. 382. Dr. Stern completed a Mental Residual Functional Capacity Assessment. Tr. 394-96. Dr. Stern indicated that plaintiff was moderately limited in her ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. Dr. Stern also indicated that plaintiff was moderately limited in her ability to interact appropriately with the general public. Dr. Stern stated that plaintiff "may have interruptions from psychologically based symptoms which would interfere with her completing work at a consistent pace. This would be particularly true if they were detailed or complicated. [Plaintiff] reports being overwhelmed by extensive interpersonal interaction. Therefore, she may have some difficulty working with the general public." Tr. 396.
On May 16, 2000, Dr. Stevenson again examined plaintiff. Tr. 447. He noted that she was still depressed and that her progress was unchanged. He continued to prescribe Zoloft and Effexor.
On July 25, 2000, Dr. Stevenson examined plaintiff. He noted that she was still depressed, that her progress was unchanged and that her condition was worse in the mornings. Tr. 446. Dr. Stevenson continued to prescribe Zoloft and Effexor.
On July 28 and 31, 2000, Dr. Ring examined plaintiff for chest pain and skin lesions. On August 4, 2000, C. David Rios, M.D. examined plaintiff because of an abnormal exercise stress test. Tr. 452. Dr. Rios noted that plaintiff had intermittent chest pain and some exertional dyspnea (shortness of breath associated with disease of the heart or lungs) over the last several months. Id. Dr. Rios scheduled a catheterization. On August 11, 2000, Ray E. Lash, M.D. performed a left heart catheterization with left ventriculogram and coronary angiogram. Tr. 487.
On August 24, 2000, Dr. Stevenson completed a Medical Source Statement (Mental) form. Tr. 443. Dr. Stevenson indicated that plaintiff was moderately limited in her ability (1) to remember locations and work-like procedures, (2) to understand and remember very short and simple instructions, (3) to understand and remember detailed instructions, (4) to carry out very short and simple instructions, (5) to carry out detailed instructions, (6) to ask simple questions or request assistance, (7) to accept instructions and respond appropriately to criticism from supervisors, (8) to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness, and (9) to set realistic goals or make plans independently of others. Tr. 443-44. Dr. Stevenson indicated that plaintiff was markedly limited in her ability (1) to maintain attention and concentration for extended periods, (2) to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances, (3) to sustain an ordinary routine without special supervision, (4) to work in coordination with or proximity to others without being distracted by them, (5) to make simple work-related decisions, (6) to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, (7) to interact appropriately with the general public, (8) to get along with coworkers or peers without distracting them or exhibiting behavioral extremes, (9) to respond appropriately to changes in the work setting, (10) to be aware of normal hazards and take appropriate precautions, and (11) to travel in unfamiliar places or use public transportation. Tr. 443-44.
On October 9, 2000, Jacqueline Dean, M.D. examined plaintiff because of red lesions on her body. Tr. 458. Dr. Dean diagnosed plaintiff with discoid lupus and osteoarthritis. Tr. 459.
When plaintiff applied for benefits in October of 1999, she was taking the following medications: Effexor and Zoloft for depression, Prevacid and Carafate for her stomach, Lasix for fluid restriction, Antivert for vertigo, Lipitor for hyperlipidema, and Synthroid, Premarin and aspirin. At various times, plaintiff also took Vioxx and Relafen for osteoarthritis, but she could not take these medications continually because of side effects. By 2001, plaintiff also started taking Lorazepam, an anti-anxiety medication.
At a hearing held on February 27, 2001, plaintiff testified that she can sit for 30 to 45 minutes if she has room to move her legs. Plaintiff stated that she deals with her fatigue by limiting her physical activities. Plaintiff testified that she cannot handle being around people or noise in supermarkets or loud telephones, doorbells or horns. Approximately two or three days a week, plaintiff has problems with dizziness. Plaintiff testified that three or four times a week, she must take naps around 2:00 p.m. She usually sleeps about two hours when she naps. Plaintiff testified that her vision is not good and that since her surgery in November of 1999, she had bubbles in her eye.
The Commissioner retained Amy Salva to testify as a vocational expert. The ALJ asked Salva to consider a claimant of plaintiff's age, education and work experience. The ALJ hypothesized that claimant has the following limitations: she can sit six to seven hours in an eight hour day at two to three hour intervals; she can stand six of eight hours in an eight hour day at one to two hour intervals; she can occasionally walk two to three blocks on a level surface; she can lift, carry and handle with both hands an object weighing 15 to 20 pounds 10 to 12 times in an hour and carry the object 15 feet; she can occasionally bend over and climb stairs; and she has limitations on reaching, pushing, pulling, gripping and grasping. See Tr. 81. Salva testified that based on the ALJ's description of plaintiff's capacity, she could perform her past relevant work as a collections representative. See id.
In his order of May 24, 2001, the ALJ made the following findings:
1. Claimant met the disability insured status requirements of the Act on April 22, 1999, and continues to meet them until at least December 31, 2001.
2. Claimant has not engaged in substantial gainful activity since on or about May 26, 1999.
3. The medical evidence establishes that claimant has left knee arthritis with chondromalacia, left foot plantar calcaneal spur with degenerative changes of the talonavicular joint, benign positional vertigo and discoid lupus, which are considered severe impairments. The testimony of the medical expert was a key factor in making this finding.
4. Claimant does not have an impairment or combination of impairments listed in or medically equal to one listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. The factors necessary to meet or equal the requirements of any listing are not present.
5. Claimant has only mild limitations of activities of daily living, social functioning and concentration. Claimant has never experienced serious decompensation in a work-like setting.
6. For reasons set out more fully in the Rationale section of the decision, claimant's testimony regarding her subjective complaints, as they relate to her ability to perform work, are not fully credible. (SSR 96-7P; 20 C.F.R. § 404.1529).
7. Claimant has a residual functional capacity for light work which requires her to lift, carry, push and pull up to 20 pounds occasionally and to sit and stand for 6 hours of an 8-hour workday, with sitting limited to 2-3 hours at a time and standing limited to 1-2 hours at a time. Claimant is capable of walking up to 3 blocks at a time and can occasionally bend and climb stairs. She should avoid exposure to sunlight and avoid working at unprotected heights or around moving machinery.
8. Claimant is capable of performing her past relevant work as a collector.
9. Claimant is not disabled, as defined in the Social Security Act, as amended, at any time since April 22, 1999. ( 20 C.F.R. § 404.1566).
Tr. 23.
Standard Of Review
The ALJ's decision is binding on the Court if supported by substantial evidence. See 42 U.S.C. § 405(g); Dixon v. Heckler, 811 F.2d 506, 508 (10th Cir. 1987). The Court must determine whether the record contains substantial evidence to support the decision and whether the ALJ applied the proper legal standards. See Castellano v. Sec'y of HHS, 26 F.3d 1027. 1028 (10th Cir. 1994). While "more than a mere scintilla," substantial evidence is only "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). Evidence is not substantial "if it is overwhelmed by other evidence — particularly certain types of evidence (e.g., that offered by treating physicians) — or if it really constitutes not evidence but mere conclusion." Knipev. Heckler, 755 F.2d 141, 145 (10th Cir. 1985) (citation omitted).Analysis
Plaintiff bears the burden of proving disability under the Social Security Act. See Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). The Social Security Act defines "disability" as the inability to engage in any substantial gainful activity for at least twelve months due to a medically deteiminable impairment. See 42 U.S.C. § 423(d)(1)(A). To determine whether a claimant is under a disability, the Commissioner applies a five-step sequential evaluation: (1) whether the claimant is currently working; (2) whether the claimant suffers from a severe impairment or combination of impairments; (3) whether the impairment meets an impairment listed in Appendix 1 of the relevant regulation; (4) whether the impairment prevents the claimant from continuing her past relevant work; and (5) whether the impairment prevents the claimant from doing any kind of work See 20 C.F.R. § 404.1520, 416.920. If a claimant satisfies steps one, two and three, she will automatically be found disabled; if a claimant satisfies steps one and two, but not three, she must satisfy step four. If step four is satisfied, the burden shifts to the Commissioner to establish that the claimant is capable of performing work in the national economy. See Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988).
Here, the ALJ denied benefits at step four, finding that plaintiff's impairments did not prevent her from performing her past relevant work as a collections representative for an insurance company. In reaching his conclusion, the ALJ agreed that plaintiff had several severe impairments but rejected the opinion of Dr. Stevenson that her depression was severe and that she likely could not work full time because of her condition.See Tr. 25-26.
I. Step Two Analysis
At step two, the ALJ must determine whether the claimant has an "impairment or combination of impairments which significantly limits [her] . . . ability to do basic work activities." 20 C.F.R. § 404.1520(c). Step two requires a "deminimis" showing of impairment Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997) (citation omitted). The claimant, however, must show more than the mere presence of a condition or ailment. See Bowen v. Yuckert, 482 U.S. 137, 153 (1987) (step two designed to identify at early stage claimants with such slight impairments they would be unlikely to be found disabled even if age, education and experience were considered).
The ALJ may deny a claim at step two only if the medical evidence establishes a slight abnormality or abnormalities which would have no more than "a minimal effect on the person's physical or mental ability(ies) to perform basic work activities." Soc. Sec. Ruling 85-28, 1985 WL56856 at *3. The ALJ should exercise "great care" before finding that a claimant's impairments are not severe. See id. at *4. If such a finding is not clearly established by medical evidence, "adjudication must continue through the sequential evaluation process." Id. at *3. In other words, step two is "an administrative convenience to screen out claims that are `totally groundless' solely from a medical standpoint."Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (quotingFarris v. Sec'y of HHS, 773 F.2d 85, 89 n. 1 (6th Cir. 1985)).
Plaintiff argues that the ALJ erred at step two by finding that her depression was not a severe mental impairment The Commissioner notes that on July 25, 2000, Dr. Stevenson stated that plaintiff was taking care of two grandchildren (ages 3 and 5) and that she reported feeling better. For that same visit, however, Dr. Stevenson noted that plaintiff was "still depressed" and that her progress was "unchanged." Tr. 446. The Commissioner also points out that in December of 1999, Dr. Edwards reported that plaintiff was properly oriented, that her performance on all attention and concentration tasks was accurate although slow and deliberate, and that her depression had responded well to treatment. Dr. Edwards concluded, however, that plaintiff met the criteria for a diagnosis of major depression, that she had not fully responded to treatment and that she likely could not return to her old job because (1) she continued to find routine interactions with others to be overwhelming, (2) she tired easily, (3) her performance on attention and concentration tasks, while accurate, was slow, probably slower than others who perform a job similar to the one she held, and (4) while she could probably perform simple jobs such as her volunteer work at church, she likely could not perform full time work. Tr. 340. The ALJ also ignored the report of Dr. Stern, the state psychological consultant who concluded on April 20, 2000, that plaintiff appeared to have a "severe impairment based on her depression." Tr. 376.
In sum, three psychiatrists — plaintiff's treating physician, one examining state consultant and one reviewing state consultant — concluded that plaintiff had a severe mental impairment. Only one non-examining consultant, Dr. Collins, found otherwise. And the ALJ did not even mention Dr. Collins' opinion at step two. See Knipe, 755 F.2d at 149 (court cannot uphold denial of benefits on reason not advanced by ALJ or Appeals Council); Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000) (ALJ decision must stand or fall with reasons set forth in decision, as adopted by Appeals Council). Substantial evidence does not support the ALJ's conclusion that plaintiff's depression was not a severe impairment Accordingly, the Court must remand the case for further administrative proceedings.
II. Step Three Analysis
At step three, the ALJ must determine whether the claimant has an impairment "equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity." Williams, 844 F.2d at 751 (quotation omitted). The ALJ must make this determination solely on medical evidence.See 20 C.F.R. § 404.1526(b). To do so, the ALJ "compare[s] the symptoms, signs, and laboratory findings about [a claimant's] impairments), as shown in the medical evidence [associated with the claim], with the medical criteria shown with the listed impairment." 20 C.F.R. § 404.1526(a). At step three, the claimant has the burden of demonstrating, through medical evidence, that her impairments "meet all of the specified medical criteria" contained in a particular listing.Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
Plaintiff argues that the ALJ erred at step three because he did not discuss the evidence and explain why he found that plaintiff had not satisfied any of the listed impairments. Here, the ALJ stated:
In response to a question from the undersigned, Dr. DeMarco opined that claimant does not have an impairment or combination of impairments which meet or equal a listing. The factors necessary to meet the requirements of any listing were not present.
Tr. 20.
The ALJ's conclusory finding is insufficient under step three. First, he did not specify what listed impairment or impairments that he compared to plaintiff's impairments. See Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996) (ALJ erred by failing to identify relevant listing or listings). Second, he did not specifically discuss the evidence or his reasons for determining that plaintiff was not disabled at step three.See id. "[T]he step three analysis requires a comparison of medical evidence regarding symptoms, signs, and laboratory findings with the listed impairment sought to be established or the listed impairment most similar to the claimant's." Larson v. Chater, 1996 WL 709848, at *1, 103 F.3d 144 (10th Cir. 1996). The fact that the ALJ agreed with the conclusion of the medical expert is insufficient to show that the ALJ conducted this comparative analysis. Absent reference to a specific listing or listings or an explanation of what evidence the ALJ considered, the Court cannot review the ALJ's bare conclusion at step three. See Clifton, 79 F.3d at 1009. (ALJ's bare conclusion at step three is beyond meaningful judicial review). The Court therefore must remand the case so that the ALJ can (1) identify the relevant listings which he compared to plaintiff's impairments and (2) explain whether plaintiff's impairments meet or equal those contained in the relevant listings.
III. Opinion Of Treating Psychiatrist
Plaintiff argues that the ALJ should have given controlling weight to the opinion of Dr. Stevenson, a treating psychiatrist. The ALJ must give substantial weight to the opinion of a treating physician "unless good cause is shown to disregard it." Goatcher v. United States Dep't of HHS, 52 F.3d 288, 289-90 (10th Cir. 1995). When a treating physician's opinion is inconsistent with other medical evidence, the ALJ's task is to examine reports of other physicians to see if they outweigh the reports of the treating physician. See id. The ALJ must consider the following specific factors to determine what weight to give any medical opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion. Id. at 290 (citing 20 C.F.R. § 404.1527(d)(2)-(6)). The ALJ must give specific, legitimate reasons for disregarding the treating physician's opinion that a claimant is disabled. See Goatcher, 52 F.3d at 290.
On August 24, 2000, Dr. Stevenson completed a medical source statement form which reflected that plaintiff was markedly limited in 11 work-related activities and moderately limited in nine other work-related activities. See Tr. 443-44. The ALJ gave the following reasons for discounting Dr. Stevenson's opinion:
Claimant's own activities and [Dr. Stevenson's] subsequent [sic] notes are inconsistent with this opinion. Thus, the undersigned will give this opinion limited weight
Tr. 21.
The ALJ apparently discounted Dr. Stevenson's opinion under the third and fourth factors. The ALJ did not specifically explain, however, how plaintiff's activities and Dr. Stevenson's notes were inconsistent with his opinion that plaintiff could not work. The ALJ's catch-all, conclusory statement is insufficient to reject the opinion of a treating physician. See Goatcher, 52 F.3d at 289-90 n. 2 (failure to give specific, legitimate reasons for disregarding treating physician opinion is miscarriage of justice warranting reversal). plaintiff's activities were somewhat extensive, but absent explanation by the ALJ, the Court cannot conclude that such activities were inconsistent with the specific limitations which Dr. Stevenson identified on the medical source statement. In addition, Dr. Stevenson's notes, though general in nature, are not inconsistent with his opinion on the medical source statement. Finally, the ALJ did not specifically explain what weight, if any, he gave to the other factors outlined in Goatcher. For these reasons, the Court must remand this action so that the ALJ can explain upon what evidence he rejects Dr. Stevenson's opinion as to plaintiff's limitations in various work-related activities, including specific reference to the factors outlined in Goatcher and 20 C.F.R. § 404.1527(d).
To the extent the ALJ thought that Dr. Stevenson should have provided further explanation for his conclusions, the ALJ should have asked him to do so. See Tr. 83 (ALJ noted at hearing that Dr. Stevenson never included specific limitations in his treatment notes, but simply checked boxes on form and did not give reasons for checking them). The ALJ has a duty of inquiry to fully and fairly develop the record. 42 U.S.C. § 423(d)(5)(B); 20 C.F.R. § 404.944; Henrie v. United States Dep't of Health Human Servs., 13 F.3d 359, 360-61 (10th Cir. 1993). Here, Dr. Stevenson was asked to simply check boxes which reflected the extent of plaintiff's limitations in a number of work-related activities. The two-page form which Dr. Stevenson received did not request explanation of the limitations noted, and it provided a very small area for "remarks" at the end of the document. In these circumstances, the ALJ had a duty to ask Dr. Stevenson for further explanation before he simply discounted the opinion.
IV. Plaintiff's Credibility
Plaintiff argues that the ALJ discounted her testimony about her limitations without making specific findings, linked to substantial evidence, as to her credibility. In reviewing ALJ credibility determinations, the Court should "defer to the ALJ as trier of fact, the individual optimally positioned to observe and assess witness credibility." Casias v. Sec'y of HHS, 933 F.2d 799, 801 (10th Cir. 1991). "Credibility is the province of the ALJ." Hamilton v. Sec'y of HHS, 961 F.2d 1495, 1499 (10th Cir. 1992). At the same time, the ALJ must explain why specific evidence relevant to each factor supports a conclusion that a claimant's subjective complaints are not credible. See Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). "Findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings." Id. (quotingHuston v. Bowea 838 F.2d 1125, 1133 (10th Cir. 1988) (footnote omitted)). So long as he sets forth the specific evidence he relies on in evaluating the claimant's credibility, the ALJ is not required to conduct a formalistic factor-by-factor recitation of the evidence. White v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2001); see Quails v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). Standard boilerplate language, however, will not suffice. Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1239 (10th Cir. 2001).
Here, the ALJ found that plaintiff's "testimony regarding her subjective complaints, as they relate to her ability to perform work, are not fully credible." Tr. 23. Plaintiff argues that such boilerplate language does not fulfil the requirement that the ALJ affirmatively link substantial evidence to his credibility findings. Plaintiff ignores the fact that the ALJ set forth several relevant factors including her daily activities, the effectiveness of her medications and her work history.See Tr. 20-21. Although the ALJ could have done a better job linking these factors to specific testimony which he found incredible, his credibility finding is supported by substantial evidence. Because the Court remands this case on other issues, however, the ALJ should reconsider his credibility findings in light of those issues and link any credibility findings regarding plaintiff's subjective complaints to specific and substantial evidence in the record.
V. Step Four Analysis
Plaintiff asserts that the ALJ erred at step four because (1) he did not make specific findings as to her residual functional capacity and the demands of her past jobs, and (2) he did not include in her residual functional capacity the limitations based on her depression. As to plaintiff's first objection, the Tenth Circuit has held that the ALJ must make findings regarding the physical and mental demands of the claimant's past relevant work See Winfrey v. Chater, 92 F.3d 1017, 1024 (10th Cir. 1996). Here, the ALJ determined the physical demands of her past work as it is customarily performed in the national economy. The ALJ apparently did not include the mental demands of plaintiff's past work because he did not find that her depression was a severe impairment under step two. As explained above, the Court remands this case based on the ALJ's failure to find that plaintiff's depression was a severe impairment. On remand, if the ALJ finds that plaintiff's depression was a severe impairment, he must determine the mental demands of plaintiff's past work. Likewise, if the ALJ finds that plaintiff's depression was a severe impairment, he must include plaintiff's mental limitations in her residual functional capacity.
VI. Conclusion
For the reasons outlined above, the Court must remand the case for further proceedings for the ALJ to further explain his ruling or award benefits. In particular, the ALJ should explain (1) upon what evidence and for what reasons he finds that plaintiff has not made a "de minimis" showing of impairment based on depression at step two; (2) what relevant listings he compared to plaintiff's impairments and whether plaintiff's impairments meet or equal those in the relevant listings; and (3) upon what evidence he rejects Dr. Stevenson's opinion as to plaintiff's limitations in various work-related activities, including specific reference to the factors outlined in Goatcher and 20 C.F.R. § 404.1527(d).
When the Court reverses the Commissioner's ruling, it can remand for further proceedings or direct an immediate award of benefits.Talbot v. Heckler, 814 F.2d 1456, 1465 n. 6 (10th Cir. 1987). A remand for further proceedings is generally required unless it would serve no purpose. Dollar v. Bowen, 821 F.2d 530, 534 (10th Cir. 1987). In this case, further proceedings are necessary to determine whether plaintiff's depression was a severe impairment and whether she can perform her past work or any work.
IT IS THEREFORE ORDERED that plaintiff's Brief (Doc. #9) filed June 1, 2003, which the Court construes as a motion for judgment, be and hereby is SUSTAINED in part. The Court overrules plaintiff's request for an immediate award of benefits, but sustains her alternative request for remand
IT IS FURTHER ORDERED that the Judgment of the Commissioner is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings not inconsistent with this memorandum and order.