Opinion
Civil Action No. 99-0895-RV-L.
November 9, 2000.
REPORT AND RECOMMENDATION
Plaintiff brings this action under 42 U.S.C. § 405(g) and 1383(c)(3) seeking judicial review of a final decision of the Commissioner of Social Security denying her claim for a period of disability, disability insurance benefits and supplemental security income benefits.
This action was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Oral argument was held on September 21, 2000. Upon consideration of the administrative record, the memoranda of the parties and the oral argument, it is recommended that the decision of the Commissioner be reversed and remanded for further proceedings consistent with this report and recommendation.
I. Issues on Appeal.
Plaintiff raised the following issues on appeal:
(1) The Administrative Law Judge committed reversible error in finding that the Plaintiffs complaints of pain, exertional limitations, and need to use a bathroom on a frequent basis because her Crohn's disease, were not credible.
(2) The Administrative Law Judge committed reversible error by failing to give controlling weight to the opinion of the Plaintiffs treating physician, Dr. Gary Kania MD, in violation of Social Security Ruling 96-2p.
II. Background Facts.
Plaintiff was born December 28, 1973 and was twenty-three years old at the time of the administrative hearing on April 1, 1997 (Tr. 45, 143, 187).
At the hearing she testified as follows: Plaintiff completed high school in 1992 and attended cosmetology school but did not finish (Tr. 45, 193-194). She was unmarried, lived with her two small children in public housing (Tr. 46). She received no child support but did receive food stamps, Aid to Families with Dependent Children and a Housing and Urban Development grant (Tr. 46, 54). She washed dishes but did no other household cleaning and had no one helping her on a daily basis (Tr. 49). She had a drivers license, drives and does her own shopping. She feeds, bathes and dresses herself, without assistance, and participates in church activities including singing in the choir two or three Sundays each month (Tr. 55-56). She spent each day "working around [her] children, doing little different activities with them. Probably throwing a ball to them, let them go outside, ride their bike, make little sandwiches for them" (Tr. 56).
Her surgeon and treating physician, Dr. Gary Kania, limited her to lifting no more than ten pounds and she does not pick up her two year old child because of this limit (Tr. 47). He told her to walk each day. She started "walking for thirty minutes at rapid speed" and then would "gradually pick on up after that" (Tr. 47). She walked a half mile to a mile each day (Tr. 47). She could stand for only thirty minutes before she would tire and have stiffness in her leg and she had weakness on her right side but not in her arms or hands (Tr. 57). She could sit for forty minutes before tiring and she did not get out and visit much (Tr. 57-58).
She had bowel movements "[n]ormally about twelve to thirteen times" from around 6:30 a.m., the time she gets up, (Tr. 48, 52, 268) and each bathroom visit took from twenty to twenty five minutes (Tr. 48). She experienced strong, sharp pain in the right lower abdomen (Tr. 48, 52). She had sores on her buttock and rectal area "every now and then . . . maybe once or twice a month" and her doctor treated her for these sores (Tr. 48). When she has the rectal sores she must cushion the seat of any chair on which she sat (Tr. 48). Her doctor gave her suppositories to help calm her intestines (Tr. 49). On these days, she could not do things with her children as she should (Tr. 49). The pain in her abdomen and the frequent trips to the bathroom occurred daily (Tr. 51-52). She did not wear diapers. Dr. Kania had told her if she got to the point where she needed diapers, he would reevaluate her condition (Tr. 53). She controls her bowels long enough to reach the bathroom at home, but sometimes when she travels, it gets to the point where she can not control them (Tr. 53).
Dr. Kania told her, after her September 1996 biopsy was inconsistent with Crohns Disease, that "the frequent bowel movement, they felt when they done the test, was not coming from the Crohn's Disease. Because he felt that he went inside, when he done the surgery, that he took care of the part that was inflamed. But was not for sure where the frequent bowel movement is coming from as of yet" (Tr. 53).
She had experienced symptoms of heart problems, which she described as "faint heart sounds," "palpitation," and shortness of breath (Tr. 49). She also experienced symptoms of anemia, which she described as light-headedness and dizziness, three to four times a week and she tires easily (Tr. 50). She took Chromagen (an iron supplement) medication "two pills, three times a day" (Tr. 50).
She had been unable to find work because of the restriction on lifting and she had not yet met with the Department of Vocational Rehabilitation (Tr. 51). Dr. Kania, told her she could work if she found a job that wouldn't require any lifting and before she "got out, he discussed with [her] not to lift anything over ten pounds." He also restricted her diet and told her to walk every day (Tr. 56-57).
In her Disability Report prepared the month following her surgery, Plaintiff stated Dr. Kania had restricted her from any household chores, lifting, and driving an automobile (Tr. 190-197). She indicated in her Daily Activities Questionnaire, prepared the month following her surgery, that she took care of all of her children's needs including preparing breakfast, dressing the children and taking them to school. She cooked meals for herself and her children without assistance, grocery shopped every other day, washed dishes and ironed, all without assistance. Each day she walked, watched talk shows on T. V., read books, novels and the newspaper. She went out four times a week but did not drive because of her low blood. She got along well with her family, often visited her family and friends and talked on the phone with relatives two time a week. She attended church, sang in the choir and went to movies. She had no problems with concentration and she understood verbal or written instructions. She takes her medication without assistance and her social life had changed since she became ill. She cannot lift anything heavier than five pounds (Tr. 198-201).
This report was completed on May 2, 1996. Her surgery was April 22, 1996. It is unclear as to whether these were permanent restrictions or post-surgical restrictions.
Rosemary Denson (Plaintiffs mother) filed a claim on behalf of Plaintiff for title XVI Supplemental Security Income (SSI) disabled child's benefits on/about June 9, 1983 (Tr. 69), alleging disability from age five due to rheumatic fever (Tr. 69, 100). Her claim was denied initially (Tr. 69, 100), and upon readjudication in 1992 (Tr. 69-76, 100-142). See Sullivan v. Zebley, 490 U.S. 1064 (1989); affirmed by Sullivan v. Zebley, 493 U.S. 521 (1990). Tiffany L. Denson (Plaintiff) filed a claim for title II disability insurance benefits and supplemental security income disability benefits on March 25, 1994, alleging an inability to work beginning December 20, 1979, due to rheumatic fever, heart problems, and swollen legs (Tr. 77-81, 93-99). Her initial disability insurance benefits claim was denied because she was not insured at that time (Tr. 68, 187-189). Her initial supplemental security income claim was denied because she was found not disabled (Tr. 82-86). Plaintiff filed her current claims for disability insurance benefits and supplemental security income benefits on May 2, 1996, alleging an inability to work beginning March 8, 1995, due to Crohn's disease, shortness of breath, and heart problems (Tr. 182-186, 350-353). Her claims were denied initially (Tr. 162-163, 166-171, 354-355) and upon reconsideration (Tr. 164-165, 174-175, 356-366).
Plaintiff timely requested a hearing before an administrative law judge (AJ) on October 1, 1996 (Tr. 176-177). ALJ Glay E. Maggard conducted the hearing on April 1, 1997, in Evergreen, Alabama (Tr. 40-64). Plaintiff appeared, testified and was represented by counsel (Tr. 40-64). A vocational expert (VE), Barry Murphy, also appeared and testified (Tr. 40-42, 58-64). The ALJ rendered an unfavorable decision on February 25, 1998 (Tr. 13-26). The ALJ found Plaintiff could not perform her past relevant work as a sewing machine operator. However, the ALJ further found Plaintiff retained the residual functional capacity to perform a significant number of other jobs existing in the national economy as identified by the VE, including cashier and housekeeper (Tr. 25). The Appeals Council (AC) considered additional argument submitted by Plaintiffs counsel (Tr. 10-12, 368-371), but found no basis for changing the ALJ's decision. The AC therefore denied review on August 11, 1999 (Tr. 6-8), making the ALJ's decision the final agency decision. See 20 C.F.R. § 404.981, 416.1481 (1999).
III. ALJ Findings
The ALJ made the following findings, in pertinent part, in regard to Plaintiffs claims (Tr. 24-25):
1. The claimant met the disability insured status requirements of the Act on March 8, 1995, the alleged disability onset date, and continues to meet them at least through the date of this decision.
2. The claimant has not engaged in substantial activity since the alleged disability onset date of March 8, 1995.
3. The medical evidence establishes that the claimant has history of Crohn's disease, history of anemia, history of rheumatic fever, heart problem. The anemia, rheumatic fever, and the heart problems have not resulted in any documented significant work-related limitations and are considered "nonsevere", while the remaining impairments are "severe" impairments, she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant subjective complaints are inconsistent and disproportionate to the medical evidence and are not fully credible, considering both medical and "other" evidence ( 20 C.F.R. § 404.1529 and 416.929).
5. The claimant has the residual functional capacity to perform the physical exertion and nonexertional requirements as expressed by Dr. Stallworth in Exhibit 6F ( 20 C.F.R. § 404.1545 and 416.945).
6. The claimant is unable to perform her past relevant work as a sewing machine operator.
7. The claimant's residual functional capacity for the full range of medium work is reduced by occasionally climbing and reaching, and mild restrictions from unprotected heights, being around moving machinery, exposure to marked changes in temperature and humidity, dust, fumes, and gasses, and no driving automotive equipment.
8. The claimant is 23 years old, which is defined as a younger individual under the Act ( 20 C.F.R. § 404.1563 and 416.963).
9. The claimant has a high school education ( 20 C.F.R. § 404.1564 and 416.964).
10. The claimant does not have any acquired work skills, that are transferable to skilled or semi-skilled work functions of other work (C.F.R. § 404.1568 and 416.968).
11. The claimant cannot perform her past relevant work as a sewing machine operator.
12. Although additional nonexertional limitations do not allow the claimant to perform all of the requirements of medium work, based on the entire record including vocational expert testimony, the claimant could perform up to 30% of all jobs existing in the national economy which the undersigned finds is a significant number of jobs. Specific examples of such jobs are: cashier and housekeeper.
13. The claimant was not under a "disability" as defined in the Social Security Act and Regulations, at any time through the date of this decision ( 20 C.F.R. § 404.1520(f) and 416.920(f)).
IV. Discussion A. Standard of Review.
In reviewing claims brought under the Act, this Court's role is a limited one. The Court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986). The Commissioner's findings of fact must be affirmed if they are based upon substantial evidence. Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991), citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is defined as "more than a scintilla but less than a preponderance," and consists of "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 390, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Bloodsworth, 703 F.2d at 1239. The Secretary's decision must be affirmed if it is supported by substantial evidence even when a court finds that the preponderance of the evidence is against the decision of the Secretary. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (1971); Bloodsworth, 703 F.2d at 1239. "In determining whether substantial evidence exists, we must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Further, it has been held that the Commissioner's "failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal." Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991). This Court's review of the Commissioner's application of legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
B. Statement of the Law
An individual who applies for Social Security disability benefits or supplemental security income must prove their disability. See 20 C.F.R. § 404.1512; 20 C.F.R. § 416.912. Disability is defined as the "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a) (1992); 20 C.F.R. § 416.905(a) (1991). The Social Security regulations provide a five-step sequential evaluation process for determining if a claimant has proven their disability. See 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. At the first step, the claimant must prove that he or she has not engaged in substantial gainful activity. At the second step, the claimant must prove that he or she has a severe impairment or combination of impairments. If, at the third step, the claimant proves that the impairment or combination of impairments meets or equals a listed impairment, then the claimant is automatically found disabled regardless of age, education, or work experience. If the claimant cannot prevail at the third step, he or she must proceed to the fourth step where the claimant must prove inability to perform their past relevant work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In evaluating whether the claimant has met this burden, the examiner must consider the following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; (4) the claimant's age, education and work history. Id, at 1005. Once a claimant meets this burden, it becomes the Commissioner's burden to prove at the fifth step that the claimant is capable of engaging in another kind of substantial gainful employment which exists in significant numbers in the national economy, given the claimant's residual functional capacity and age, education, and work history. Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985). If the Commissioner can demonstrate that there are such jobs the claimant can perform, the claimant must prove inability to perform those jobs in order to be found disabled. Jones v. Apfel 190 F.3d 1224, 1228 (11th Cir. 1999); Powell o/b/o Powell v. Heckler, 773 F.2d 1572, 1575 (11th Cir. 1985); Ambers v. Heckler, 736 F.2d 1467, 1469 (11th Cir. 1984). See also Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987), citing Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985).
V. Medical Evidence
On May 9, 1994, Mohammed A. Nayeem, M.D., consultatively examined Plaintiff, prior to her onset of Crohn's Disease. Plaintiff reported to Dr. Nayeem that her family physician had told her that she had a "heart problems with one of her heart valves." Dr. Nayeem observed that her heart rhythm and rate were normal and that she had no complaints of chest pain. He diagnosed probable mild mitral valve prolapse. He stated that "[s]ince ten percent of the normal health population has some degree of mitral valve prolapse, this is probably not a dangerous heart condition." He recommended she undergo an echocardiogram and consult with a cardiologist (Tr. 156-158). He noted, "[p]resently, there is no physical impairment" (Tr. 158).
On March 6, 1996, Dr. Abraham Mouton admitted the Plaintiff to Vaughan Thomasville Medical Center (Tr. 331-332). He noted her primary complaint as right lower quadrant abdominal pain which he suspected was the result of a ruptured ovarian cyst. He noted her history of such cysts with rupture. He also noted that her bowel habits were normal and that she had had diarrhea about one week previously due to a gastric flu. He also noted her treatment for peptic ulcer disease about one year previously. On March 11, 1996, at discharge, Dr. Mouton noted his final diagnosis of "[i]nflammatory bowel disease to be confirmed either as ulcerative colitis or Crohn's disease" and consulted Dr. Gary Kania (Tr. 330).
On March 11, 1996, Dr. Kania performed a laparoscopy with aspiration of pelvic fluid. Initially, a ruptured hemorrhagic ovarian cyst was suspected (Tr. 333-334). Dr. Kania noted as follows:
INTRAOPERATIVE FINDINGS: Reveal the pelvis to be normal. No evidence of endometriosis or cyst. There is no blood in the pelvis from previous cyst rupture. No tumors or masses of the pelvis noted. Liver appears normal. Stomach normal. There is acute inflammation of the terminal ileum and cecum. This may represent an early Crohn's disease. There may be some signs of early fat wrapping.
Dr. Kania noted that she would need further studies. (Tr.334).
On March 15, 1996, Plaintiff was seen at Dr. Kania's office. He noted mild stomach cramps for the past four days and spotting of blood. He also noted "BM OK" and that Plaintiff was taking steroids (Tr. 266).
On March 20, 1996, Dr. Kania performed an esophagogastroduodenoscopy and total colonscopy with biopsy (Tr. 325-326). He noted as follows:
GROSS FINDINGS: 22 year old black female who has had approximately 3 or 4 months of right lower quadrant abdominal pain. There was concern for possible ruptured cyst. She had laparoscopy performed. At the time of laparoscopy the terminal ileum appeared to be inflamed. There was an approximately 8-10 cm. segment of inflammation. The cecum and ascending colon also appeared mildly inflamed at the time. The patient was scheduled for GI workup. The intraoperative findings reveal the stomach to have mild gastritis, otherwise normal esophagus, stomach and duodenum. No evidence of ulcers, polyps or masses. No evidence of inflammatory bowel disease. Colonoscopic findings revealed mild nonspecific inflammation of the cecum. There is a questionable inflammation at the ileocecal valve. Multiple biopsies were taken at this area. There is no gross evidence of acute Crohn's disease or inflammatory bowel disease. No tumors, polyps or masses.
The biopsies taken by Dr. Kania were examined by Donald W. Chandler, M.D., pathologist (Tr. 327, 265). He noted as follows:
CLINICAL DIAGNOSIS: Post: Mild gastritis, nonspecific inflammation, colon.
DIAGNOSIS (Gross and microscopic) Cecal biopsies: nonspecific findings, with chronic inflammation, mucosal and submucosal lymphoid nodules.
On March 25, 1996, Dr. Kania noted Plaintiffs complaints of abdominal cramps lasting three to five minutes about four time per day for the past two days (Tr. 266). He also noted "no distress or pain" (Tr. 266).
On March 27, 1996, Dr. Kania examined Plaintiff on complaint of occasional intermittent right lower quadrant pain lasting four to five minutes with cramping. She was instructed to continue her steroid medication, Prednisone.
On April 11, 1996, Dr. Kania examined Plaintiff on complaint of intermittent pain, heartburn and indigestion. He also noted her report of three bowel movements per day and that her rectal bleeding was present. He also noted "some improvement." He prescribed Prilosec, decreased her steroid medication and continued her iron supplement for her anemia. (Tr. 262).
On April 16, 1996, Dr. Kania spoke by telephone with Plaintiff on complaint of no bowel movement and some intermittent chest pain. Dr. Kania noted that he told Plaintiff that she needed surgery on her bowels. He noted that Plaintiff wanted a second opinion and he recommended two physicians at Mobile Infirmary, but told her that this was an emergency and that she should go to an emergency room.
On April 22, 1996, Dr. Kania performed a right hemicolectomy and removed a portion Plaintiffs ileum and cecum and her appendix (Tr. 242-243). He noted as follows:
INTRAOPERATIVE FINDINGS: Reveals what appears to be an inflammatory mass of the ileocecum. This appears to be more in the terminal ileum. There is enlarged lymph nodes. There is no definitive fat wrapping to suggest Crohn's; however, this still appears to me to be more inflammatory than neoplastic. There are enlarged lymph nodes in the mesentery. There are no other palpable masses of the bowel. There are no tumors of the liver, stomach or kidneys. There was no evidence of acute Crohn's disease in any other part of the intestines.
The surgical pathological report of the section of the colon removed from Plaintiff confirmed "inflammatory bowel disease consistent with Crohn's disease involving ileum, appendix and colon showing ulcerations of ileal mucosa and foci of acute and chronic abscesses in the muscular wall of colon and ileum" (Tr. 245, 261).
On April 29, 1996, Plaintiff complained of pain in chest and on swallowing after eating. She was instructed to take Mylanta or Maalox and Prilosec was prescribed (Tr. 261).
On May 6, 1996, Dr. Kania noted that she was "doing well," had no pain in her right lower quadrant, "BM OK" and no rectal bleeding. (Tr. 261).
On May 7, 1996, Plaintiff called Dr. Kania to complain of rectal bleeding and was instructed to call back if the problem continued. Later, that day, Plaintiff called to inform Dr. Kania that the bleeding continued and she was instructed to go to the emergency room (Tr. 259). On May 8, 1996, Dr. Kania noted no blood was present, but she was anemic and medications were prescribed. He noted her weight at 120 pounds (Tr. 258).
On May 20, 1996, Dr. Kania noted no rectal bleeding, "BM OK" and occasional pain in right side. He continued her iron supplement and reduced her Prednisone (Tr. 257). On May 21 and 22, 1996, Plaintiff complained of and was treated for pain at the IV site (Tr. 257).
On June 11, 1996, Plaintiff was treated for complaints of lightheadedness, nausea and a "spinning sensation." Dr. Kania noted his impression of vertigo. He also noted that she was negative for rectal bleeding. Medication was prescribed (Tr. 256).
On June 24, 1996, Dr. Kania noted "doing well," no complaints and continued her medications (Tr. 254). Plaintiff did not show up for any other appointment set for June or July.
On August 7, 1996, Dr. Kania noted Plaintiff complained of intermittent pain, slight blood from rectum and frequent urination. He noted that she was positive for diarrhea for the past two weeks. He also noted that her iron was up, she felt better and she had gained weight up to 136 pounds. He noted his impression of possible urinary tract infection and questionable exacerbation of Crohn's disease. Medications were prescribed. (Tr. 254). Plaintiff did not show up for any other appointment set for August.
On September 25, 1996, Dr. Kania noted that Plaintiff was "doing well" and that she had loose bowels one time per day. He noted her weight gain up to 142 pounds. He noted his impression of Crohn's, recommended a colonoscopy and continued her medication (Tr. 253).
On September 30, 1996, Dr. Kania performed a post-operative colonoscopy with biopsy (Tr. 304). After the colonscopy, he noted as follows:
GROSS FINDINGS: 22 year old black female with history of Crohn's Disease and status post ileocecal resection approximately 6 to 8 months ago. The patient has been doing fairly well on Azocol and she is having a repeat colonoscopy to check the anastomosis and ascertain any possible new onset of Crohn's disease.
INTRAOPERATIVE FINDINGS: Reveal no evidence of tumors, masses, polyps or ulcers of the colon. There is no evidence of acute "Crohn's Disease." There is mild erythema at the anastomosis. I was unable to visualize the small intestine secondary to large amount of feces in the small intestine.
The biopsies taken by Dr. Kania were examined by Donald W. Chandler, M.D., pathologist (Tr. 305). He noted as follows:
COMMENT: The colonic biopsies do not show features consistent with inflammatory bowel disease. The isolated granuloma seen could easily be associated with changes from the previous surgery since the biopsy is from an anastomosis site. I do not believe this granuloma is consistent with Crohn's disease.
On October 8, 1996, Dr. Kania noted that Plaintiff was "doing ok" though her iron was low. He prescribed a different iron supplement (Tr. 276).
On November 12, 1996, Plaintiff reported that she was gaining weight. Her weight was 151 pounds. Dr. Kania noted her report of four to eleven bowel movements each day. He noted that she was starting to exercise and that her abdomen was soft. He also noted that she continued with "persistent anemia," that she should continue her iron supplement and he would recheck her in three months (Tr. 275).
On November 23, 1996, Plaintiff was treated at the Vaughan Thomasville Medical Center on complaints of seven bowel movements and vomiting eleven times. She was diagnosed with acute viral gastroenteritis and anemia. Medications were prescribed and she was advised to check with her family physician (Tr. 288).
On December 5, 1996, Dr. Kania noted that she was "doing fair" and that she had had a virus two weeks ago. He also noted "some stomach cramps," "BM OK" and walking two blocks once a day. He noted her abdomen was soft with mild tenderness. Dr. Kania adjusted her medication and arranged for a hemotology consult with a physician at USA Medical Center. Her weight was 150 pounds (Tr. 274).
On February 10, 1997, Plaintiff had her last visit of record with Dr. Kania prior to her April 1, 1997 hearing. Her weight was listed as 152 pounds (Tr. 273). Her primary complaint was right breast pain. She reported her bowel movements as ten times per day with occasional blood. Dr. Kania noted his impression of fibrocystic breast disease and Crohn's disease. Dr. Kania started her Prednisone, told her to avoid caffeine and return for a check-up in one month. He also noted that he would arrange a hematology consult (Tr. 273).
On February 13, 1997, J. A. Stallworth, M.D., conducted an internal medicine consultative evaluation. He noted a Grade I/VI systolic ejection heart murmur, mild abdominal tenderness in the right lower quadrant, normal bowel sounds, and a negative pelvic/rectal examination. Plaintiff had full range of motion in her extremities, no edema, and was neurologically normal (Tr. 268). Dr. Stallworth noted Crohn's disease by history and status postileo-cecal resection, history of iron deficiency anemia, and history of rheumatic fever (Tr. 269). Dr. Stallworth also completed a physical capacities evaluation indicating Plaintiff could sit for 2 hours at a time and for a total of 4 hours in an 8 hour workday; stand for 2 hours at a time and for a total of 4 hours in an 8 hour workday; and walk for 1 hour at a time and for a total of 2 hours in an 8 hour workday. He noted she could frequently lift up to 25 pounds, occasionally lift 26-50 pounds, but not lift 51-100 pounds. He opined Plaintiff could use her hands for repetitive action such as simple grasping, pushing and pulling of arm controls, and for fine manipulation and could use her feet for repetitive movements such as pushing and pulling of leg controls. He noted she could frequently bend squat, and crawl and occasionally climb or reach. He found her mildly restricted from activities involving unprotected heights, being around moving machinery, exposure to marked changes in temperature and humidity, and exposure to dust, fumes, and gases, but without restriction from driving automotive equipment (Tr. 270).
Two letters from Dr. Kania, the first dated March 30, 1997 and the second undated but provided to the ALJ on May 21, 1997, indicate Plaintiff was diagnosed with Crohn's disease. In the first letter, Dr. Kania stated that the disease is chronic, noncurable and likely to recur. He noted Plaintiff had had surgery and was taking medication which would continue. He noted Plaintiff would be afflicted with this disease for the remainder of her life and would require long term monitoring and frequent treatment. He stated that most patients require multiple abdominal surgeries (Tr. 344).
In his second letter, Dr. Kania stated as follows: This letter is in regards (sic) to Tiffany Denson who is applying for disability. As you know, Ms. Denson suffers from Crohns Disease, an incurable illness which waxes and wanes in intensity and symptoms. It is typical of Chrohns to have more frequent bowel movement than the normal individual. Ms. Denson would have 1-6 bowel movement (sic) a day and would be indisposed for about 15 minutes at a time. Cramping would often accompany any loose bowel movement.
(Tr. 349). Dr. Kania completed a "Crohn's Disease Pain Questionnaire" form which indicated her complaints of chronic severe pain were consistent with this diagnosis. However, Dr. Kania noted the pain would affect Plaintiffs ability to perform in a work setting "only when the pain is severe" (Tr. 348).
Dr. Kania completed a physical capacities evaluation dated April 7, 1997, which indicated in an 8 hour workday, Plaintiff could sit for 8 hours, stand for 2 hours at a time, and walk for 2 hours at a time. Dr. Kania did not complete the "Total During 8 Hour Day" part of the form. He noted Plaintiff could frequently lift up to ten pounds, occasionally lift up to twenty-five pounds, but not more. She was unrestricted on the use of either hand for simple grasping, pushing or pulling arm controls, and fine manipulations. She was unrestricted on the use of her legs and feet for repetitive action such as pushing or pulling of leg controls. Dr. Kania opined Plaintiff could frequently bend and reach, occasionally squat and crawl, but should not climb. She was totally restricted from unprotected heights, and moderately restricted as to exposure to moving machinery, exposure to marked changes in temperature and humidity, and exposure to dust, fumes, and gases. She was not restricted from driving automotive equipment. He noted no other functional limitations (Tr. 345).
VI. Plaintiff's Argument
A. Credibility of Plaintiff's Testimony.
Plaintiff alleges that the Administrative Law Judge committed reversible error in finding the Plaintiffs complaints of pain, exertional limitations, and need to use a bathroom on a frequent basis because her Crohn's disease, were not credible. Plaintiff states that the medical records and reports of Dr. Kania support her complaints of pain and other symptoms; thus, the ALJ erred in finding her not credible.
When a plaintiff alleges disability based upon subjective complaints of pain or other subjective symptoms, those complaints of pain and subjective symptoms are evaluated under the "pain standard" discussed in Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986). See Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991), citing Jackson v. Bowen, 873 F.2d 1111, 1114 (8th Cir. 1989).
In order to consider the subjective testimony, the standard requires "(1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain." Foote v. Chater, 67 F.3d at 1560; Holt v. Sullivan, 921 F.2d at 1223 (11th Cir. 1991) (citing Landry v. Heckler, 782 F.2d at 1553 (11th Cir. 1986)). Plaintiff must provide evidence of the underlying medical condition which could reasonably produce the degree of subjective complaints alleged. 20 C.F.R. § 404.1529; 20 C.F.R. § 416.929. Her statements, standing alone, will not establish disability. See Edwards v. Sullivan, 937 F.2d 580, 584 (11th Cir. 1991) (citing Landry, 782 F.2d. at 1553). Also, the ALJ has the duty to examine the evidence and resolve conflicts therein. See Wolfe v. Chater, 86 F.3d 1072, 1079 (11th Cir. 1996).
Moveover, when a plaintiff alleges symptoms greater than what would reasonably be expected based upon the medical evidence, further evaluation is necessary. 20 C.F.R. § 404.1529; 20 C.F.R. § 416.929. Social Security Ruling 96-7p: Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing The Credibility of an Individual's Statements states that an individual's symptoms may imply a level of severity which is greater than that shown by objective medical evidence and that the ALJ must consider the following, in addition to the objective medical evidence, in reaching a decision about Plaintiffs credibility:
1. The individual's daily activities; 2. The location, duration, frequency, and intensity of the individual's pain or other symptoms; 3. Factors that precipitate and aggravate the symptoms; 4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5. Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms; 6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7. Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
The Eleventh Circuit Court of Appeals has also held that the determination of whether objective medical impairments could reasonably be expected to produce the pain or other subjective symptom was a factual issue for determination by the Secretary and, therefore, "subject only to limited review in the courts to ensure that the finding is supported by substantial evidence." Hand v. Heckler, 761 F.2d 1545, 1549 (11th Cir.), vacated for rehearing en banc, 774 F.2d 428 (1985), reinstated sub nom. Hand v. Bowen, 793 F.2d 275 (11th Cir. 1986).
The ALJ made specific finding in regard to Plaintiffs subjective complaints of frequent bowel movements and pain and evaluated her medical evidence including that of her treating physician (Tr. 19-22). The ALJ found that Plaintiffs Crohn's disease was a severe impairment but did not meet or equal any impairment in 20 C.F.R. Pt. 4, Subpt P, App. 1, Listing of Impairments (Tr. 24-25). Therefore, she met the first prong of the evaluation of subjective complaints. The ALJ then noted that if a claimant alleges symptomatology in excess of what would reasonably be expected by the medical evidence, further analysis must be made (Tr. 21). The ALJ continued his analysis and found that, in regard to her subjective complaints of pain in her abdomen which prevent work, "the medical signs and/or clinical findings in the record do show the existence of some pain, but its affect or interference on the claimant's functional ability is minimal, can be controlled by medication and exercise and does not reach the level alleged by the claimant" (Tr. 21). Upon consideration of her daily activities, the ALJ found that her "self described activities are indicative that claimant's allegations as to restrictions of standing, sitting, walking, and lifting are not as significant as alleged and that she has the functional capacity for some type of work activity" (Tr. 21-22).
The ALJ also noted that Plaintiffs credibility was further compromised by the consultative report of Dr. Stallworth and, Dr. Kania's medical reports and letters. The ALJ found that "[a]t no time in Dr. Kania's medical reports did he noted (sic) that such condition was disabling as to restrict claimant from performing any type of work activity. In fact he only indicated that claimant would be indisposed for about 15 minutes at a time during her bowel movements, and this disposition does not restrict her from performing all types of work activities" (Tr. 22).
In regard to the Plaintiffs allegation that the frequency of her bowel movements prevented her from working, the ALJ found as follows:
The medical record is void of any indication where the treating physicians noted any limitations, or disabling conditions that would prevent claimant from performing any activities. Most of claimant's conditions were surgically contained and controllable with prescribed medication. Her allegation regarding the frequency of bowel movement of 1/2 hour duration is not supported by the objective record nor is it plausible or reasonable. Particularly so in view of the fact that she is the primary care provider for her children and her description of her social activities.
(Tr. 22). Based on this analysis, the ALJ found Plaintiffs subjective complaint not credible (Tr. 23).
The credibility of a witness shall be determined by the Commissioner of Social Security and not by the courts. Kelly v. Heckler, 736 F.2d 631, 632 (11th Cir. 1984). This Court must consider the entire record in its consideration of whether substantial evidence supports the ALJ's decision, including credibility findings regarding complaints of disabling symptoms, and evidence that detracts from the evidence relied upon by the ALJ. See Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995); Parker v. Bowen, 793 F.2d 1177 (11th Cir. 1986).
As discussed, infra, the medical records and Plaintiffs daily activities are contrary to the level of functional limitations which Plaintiff claims. Therefore, the undersigned finds that the ALJ properly rejected Plaintiffs complaints of disabling pain and other symptoms and that his decision is supported by substantial evidence.
First, the medical records of Dr. Kania do not support her allegation that she has twelve to thirteen bowel movements per day which last twenty to twenty-five minutes. Dr. Kania's letter states that Plaintiff has one to six bowel movements per day which may last up to fifteen minutes (Tr. 349). In August 1996, Dr. Kania noted her report of diarrhea for about two weeks (Tr. 254). On September 25, 1996, he noted her report of loose bowels one time per day (Tr. 253). On September 30, 1996, a colonoscopy was performed which was negative for exacerbation of Crohn's disease (Tr. 304-305). On November 12, 1996, she stated she had four to eleven bowel movements per day but then on December 5, 1996, she reported that her bowel movements were "OK" (Tr. 274-5).
Further, Dr. Kania' s records do not support her allegation of disabling pain. Dr. Kania's letter states that she would experience cramping with her bowel movements. However, in the pain questionnaire, while noting that she would have chronic severe pain, he stated in his written response that the pain would affect her ability to work "only when it is severe" (Tr. 348). This statement raises the implication that her pain would not always be severe, especially when combined with his statement that Crohn's symptoms will wax and wane and that she would experience cramping not severe pain.
Plaintiff has complained of cramping and loose bowels for which she has been prescribed Azacol and Prednisone. However, Dr. Kania's medical records do not indicate complaints of severe pain. There are no prescriptions for pain medication, alternative treatment for pain, nor referral for pain management. Plaintiffs medication list did not include pain medication.
Also, underlying an allegation of chronic severe disabling pain there must be a diagnosis. Her September 20, 1996 colonscopy and resulting biopsies were interpreted by her treating physician and the pathologist as indicating no presence of acute Crohn's disease (Tr. 304-305). Dr. Kania's notes state that he performed the colonoscopy to "ascertain any possible new onset of Crohn's disease" (Tr. 304). He noted his findings as revealing "no evidence of tumors, masses or polyps or ulcers of the colon" and then noted "[t]here is no evidence of acute Crohn's disease." (Tr. 304). The pathologist noted that "t]he colonic biopsies do not show features consistent with inflammatory bowel disease . . . . I do not believe this granuloma is consistent with Crohn's disease" (Tr. 304).
Plaintiff testified that her doctor had treated her for rectal and buttock sores occurring about twice a month (Tr. 48). A review of the medical records provided from Dr. Kania (Tr. 249-266; 272-276) and Dr. Mouton (Tr. 219-320) do not indicate treatment of this kind or frequency.
Plaintiff testified that her doctor had limited her to lifting no more than ten pounds. However, Dr. Kania's physical capacities evaluation indicated that Plaintiff could lift and carry up to ten pounds frequently and up to twenty-five pounds occasionally but not more.
On the physical capacities evaluation form prepared by Dr. Kania, "occasionally" equals from 1% to 33% of an eight hour work day and "frequently" equals 34% to 66% of an eight hour work day (Tr. 345). The same percentages are used on the physical capacities evaluation prepared by Dr. Stallworth. He found that Plaintiff could frequently lift up to twenty pounds and occasionally lift twenty-one pounds to fifty pounds. He also found that Plaintiff could frequently carry up to ten pounds and occasionally carry eleven to fifty pounds (Tr. 270). questionnaire, supports her testimony that she is disabled and his opinion should have controlling weight.
The undersigned finds that the ALJ's properly rejected Plaintiffs allegations of disabling subjective complaints and that there was no error in the ALJ's credibility finding nor in his application of the analysis as set forth in Social Security Ruling 967p and 20 C.F.R. § 404.1529. The ALJ specifically set forth adequate reasons for rejecting the Plaintiff's subjective complaints which are supported by the medical evidence and Plaintiff's statements and testimony, including her daily activities in caring for her two year old child and four year old child and her church activities (Tr. 21-22).
(B). Consideration of Treating Physician.
Plaintiff argues that the Administrative Law Judge committed reversible error by failing to give controlling weight to the opinion of Plaintiffs treating physician, Dr. Kania, in violation of Social Security Ruling 96-2p. Plaintiff asserts that Dr. Kania's opinion, as expressed in his letters, physical capacities evaluation and pain
The Regulations require an ALJ to give more weight to the opinion of Plaintiffs treating physician because treating physicians should be able to provide a detailed, longitudinal picture of the Plaintiffs medical impairments which cannot be obtained from any other source. 20 C.F.R. § 404.1527(d)(2) (2000); 20 C.F.R. § 416.927(d)(2) (1998). Although a treating physician's opinion is generally entitled to considerable weight, such an opinion may be accorded little weight where the evidence shows "good cause" to the contrary. 20 C.F.R. § 416.927; Edwards v. Sullivan, 937 F.2d at 583; Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986); Johns v. Bowen, 821 F.2d 551, 555 (11th Cir. 1987). In addition, a treating physician's opinion may be discounted when it is not accompanied by objective medical evidence or it is wholly conclusory. 20 C.F.R. § 416.927(d) (2000); 20 C.F.R. § 404.1527 (2000); Edwards v. Sullivan, 937 F.2d at 583. A treating physician's opinion about the nature of an impairment and the prevalence of symptoms receives controlling weight when it is supported by medically acceptable clinical records, laboratory and diagnostic techniques, and consistent with the other substantial evidence in the case. 20 C.F.R. § 404.1527(d)(2) (2000); 20 C.F.R. § 416.927(d)(2) (2000).
Further, "the [Commissioner] may reject the opinion of any physician when the evidence supports a contrary conclusion." Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir 1983). Also, a treating physician's disability opinion may be properly discredited because it is not consistent with the physicians s own clinical notes and physical capacities evaluation. Jones v. Department of Health and Human Services, 941 F.2d 1529, 1533 (11th Cir. 1991). "Even if a treating source's medical opinion is well-supported, controlling weight may not be given to the opinion unless it is also `not inconsistent' with the other substantial evidence in the case record." Social Security Ruling 96-2p: Giving Controlling Weight to Treating Source Medical Opinion. An ALJ may discredit evidence submitted by a treating physician, if the ALJ clearly articulates his reasons. Marbury v. Sullivan, 957 F.2d 837, 841 (11th Cir. 1992). The ALJ is required to state with particularity the weight given different medical opinions and the reasons therefore. See Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987). If the ALJ rejects the opinion, he or she must give explicit and adequate reasons for so doing. Elam v. Railroad Retirement Board, 921 F.2d 1210, 1215 (11th Cir. 1991); McGregor v. Bowen, 786 F.2d 1050, 1053, (11th Cir. 1986).
The ALJ specifically referenced the two letters from Dr. Kania in his decision (Tr. 21) and discussed the medical evidence in Dr. Kania's records (Tr. 21-23). The ALJ found the letters "indicated that the claimant was diagnosed with Crohn's diseases which was noncurable, and that people with this disease often develop bowel obstructions, and abscesses in the abdomen and fistulae" (Tr. 21). The ALJ also noted Dr. Kania stated Plaintiff would be "afflicted with this disease for the remainder of her life which will require long term monitoring and frequent treatment" (Tr. 21, 22). He stated that Dr. Kania's medical reports did not note her condition as disabling or restricting Plaintiff from performing any type of work activity (Tr. 22). He also noted Dr. Kania's statement that she would be "indisposed for about 15 minutes at a time during her bowel movements" and the ALJ determined such indisposition would not "restrict her from performing all types of work activities" (Tr. 22). The ALJ also found that the "medical record [was] void of any indication where the treating physician noted any limitations, or disabling conditions that would prevent claimant from performing any activities" (Tr. 22).
As stated herein, the ALJ may reject or discredit the opinion of a treating physician where there is good cause to do so and he must give adequate and explicit reasons for so doing. Upon review of the ALJ's decision, the undersigned can not determine whether the ALJ accepted or rejected the treating physician's, Dr. Kania's opinion. If the ALJ intended to reject any portion of Dr. Kania's opinion, e.g. that Plaintiff was indisposed one to six times a day for fifteen minutes, then he must state specific reasons for doing so. If the ALJ accepted Dr. Kania's limitations, then these would constitute significant non-exertional limitations which should be considered by the ME when determining whether other work exists in the national economy.
VII. Conclusion
For the reasons set forth, and upon consideration of the administrative record, the hearing decision, the memoranda of the parties, and oral argument, it is recommended that the decision of the Commissioner denying the Plaintiffs claim for a period of disability, disability insurance benefits and supplemental security income benefits be reversed and remanded for further proceedings not inconsistent with this report and recommendation.
Furthermore, it is recommended that a final judgment be entered ordering remand in this action pursuant to sentence four of 42 U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89 (1991), for further proceedings not inconsistent with this recommendation, see Shalala v. Schaefer, 509 U.S. 292 (1993).
The attached sheet contains important information regarding objections to this report and recommendation.
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Objection . Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the clerk of court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)( en banc). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable where proceedings tape recorded) . Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.