Opinion
Case No. 2:01CV00114
March 8, 2003
MEMORANDUM OPINION AND ORDER
Before the Court is plaintiff's request for judicial review of the decision of the Commissioner of Social Security denying her claim for disability insurance benefits ("benefits") under Title II of the Social Security Act, 42 U.S.C. § 401-433. Having reviewed the parties' briefs, the administrative record and the applicable law, the Court issues the following memorandum Opinion and Order.
I. PROCEDURAL HISTORY
Plaintiff applied for Social Security Disability benefits on December 23, 1998 alleging an inability to work since June 11, 1998 due to stress, panic attacks, shortness of breath, side effects of medications, chest pain, difficulties with memory and concentration, heart problems, passing out, depression, anxiety and post traumatic stress disorder. After her claims were denied at the initial and reconsideration levels of administrative review, plaintiff requested a hearing with the ALJ. That hearing was held on March 22, 2000.
On April 27, 2000, the ALJ denied plaintiff's claim, finding that she could perform work as a small parts assembler, storage rental clerk, and solder production line worker. The ALJ also found that each of these occupations existed in the national and regional economy. Plaintiff appealed to the Appeals Council. However, that request was denied thereby making the ALJ's April 27, 2000 ruling the Commissioner's "final decision" under 42 U.S.C. § 405(g). Plaintiff now brings this timely action seeking judicial review of the Commissioner's decision. Plaintiff alleges that beginning in June of 1998 she has met or exceeded the definition of disability and is entitled to benefits.
A disability is "the inability to engage in 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 12 months." 42 U.S.C. § 423(d)(1)(A).
II. FACTUAL BACKGROUND A. Medical Treatment
Plaintiff was 35 years old as of the date she claims she became disabled and 37 years old as of the date of the Commissioner's "final decision." She has a high school education with some completed college work and has worked as a quality control clerk.
Plaintiff's first treating physician, Fares Arguello, M.D., began treating plaintiff on April, 4, 1997. At that time plaintiff was diagnosed with "depressive disorder NOS" and "anxiety disorder NOS." Antidepressant medication and medication for insomnia and panic symptoms were prescribed.
In July of 1998, Dr, Arguello reported plaintiff had experienced a resurgence in symptoms but that plaintiff was functioning better with treatment and medication. By October 22, 1998, Dr. Arguello described gradual improvement and on December 29, 1998, he stated that plaintiff was "basically improved" with medications. Dr. Arguello also stated, however, that plaintiff "continues to have some problems [with] insomnia [and] memories of trauma." And, or December 11, 1998 Dr. Arguello wrote that plaintiff had "symptoms" of "depression, anxiety, [and] at times panic." He also opined that plaintiff was "unable to work."
Gerald E. Manwill, Ph.D., performed a mental status examination of plaintiff at the request of the Commissioner on March 19, 1999. Dr. Manwill found no signs of post traumatic stress disorder or psychosis but diagnosed panic disorder with agoraphobia. Dr. Manwill also noted that plaintiff's abilities to understand, remember, and carry out simple one or two step job instructions were not impaired. He noted that although plaintiff had previously experienced severe depression, the depression had "largely lifted."
Plaintiff began treatment with John Helfer, M.D., on March 24, 1999. Dr. Heifer noted that plaintiff was non-compliant with treatment and that she missed appointments without notice. He reported that plaintiff's memory was normal, that she had no psychotic symptoms and that "her symptoms are apparently under control with present medications." He also noted that anxiety and depression had been treated satisfactorily with medication. Finally, he reported that plaintiff "show[ed] little if any interest in improving her condition . . ."
At the request of the Commissioner, Margaret Moore, Ph.D., completed a psychiatric review technique form after reviewing plaintiff's records. Dr. Moore concluded that plaintiff did not have a "severe" mental impairment. She also opined that plaintiff was engaged in disability-seeking behavior and that plaintiff was not compliant with treatment.
On May 20, 1999, plaintiff was examined by Ronald B. Brown, M.D., for complaints of "atypical" chest pain, increased heart rate, and shortness of breath. However, a physical examination found normal blood pressure and pulse with only a "very soft murmur."
After examining plaintiff on July 29, 1999, Dr. Harvey U. Rishe, Ph.D. completed an insurance form describing plaintiff's symptoms as "overwhelmed, heart arrhythmia, depression, anxiety, dizzy, passed out." Dr. Rishe diagnosed plaintiff as depressed and suffering from a large amount of stress. He opined that such stress was hard on plaintiff's heart and that she was always out of breath. Finally, he noted that plaintiff was indefinitely totally disabled from both her regular occupation and any other occupation.
In November of 1999, Dr. Brown again treated plaintiff for symptoms related to her irregular heart beat. In a letter addressed "to whom it may concern" Dr. Brown noted that the prescribed medication had resulted in "some improvement but not complete suppression of her symptoms" which included "loss of consciousness and the sensation of an irregular heart beat." Dr. Brown stated that plaintiff "may well continue to have intermittent palpations and even an episode of a loss of consciousness."
Dr. Glen Johnson, M.D., a psychiatrist, noted on December 16, 1999 that plaintiff suffered from panic disorder secondary to job-induced stress and harassment, major depression secondary to job-induced stress and harassment, post traumatic stress disorder, and acute stress disorder created by job harassment.
Lastly on March 22, 2000 Dr. Brown stated that plaintiff has "a heart rhythm abnormality." He stated that "[d]espite medical therapy, she continues to have symptomatic episodes of her rhythm problem."
B. Testimony
Plaintiff testified before the ALJ that, beginning in May 1999, she began to suffer episodes of irregular heart beat. She stated that she had chest pain and numbness in the left arm and that she was diagnosed with heart arrhythmia. She also testified that her condition caused her to pass out at least once or twice per week. When she passed out she would typically lose consciousness for five to ten minutes. After she regained consciousness, she could not move for one-half hour afterward and often she would remain on the couch for a longer period of time to "try and regroup."
Plaintiff's husband, Andrew Gibson, corroborated plaintiff's testimony. He testified that she would frequently lose consciousness, and he explained that on one particular occasion plaintiff lost consciousness while standing in the kitchen and fell and cut herself. Mr. Gibson also testified that plaintiff often became light-headed and frequently needed to lie down. Plaintiff also often appeared pale, had a "hard time keeping a complete thought" and seemed forgetful. According to Mr. Gibson, plaintiff also complained of pain in her arm and in the back of her head, and had difficulty sleeping.
Plaintiff testified that she takes Paxil for her emotional condition, Alprazolam for her panic disorder and Atenol for her heart rhythm irregularity. Each of these medications may cause lightheadedness, dizziness and drowsiness (Record at 99, 100, 103).
Plaintiff's daily activities consisted of taking care of her personal grooming, childcare for her five year old, flower gardening, taking automobile rides with her husband, reading, listening to music, cooking infrequently, and watching television. Plaintiff also testified that she spent the majority of her day in bed or on the couch. Mr. Gibson also testified that plaintiff spent most of her time in bed.
Plaintiff has not worked since June 1998. In April 1999, she attempted to work at a recreational center, picking up papers and completing other janitorial duties. However, plaintiff had trouble breathing, became dizzy and "almost passed out." Her employment lasted only three days.
The ALJ asked John F. Hurst, M.S., a vocational expert, to consider two separate hypothetical applicants. In the first hypothetical the ALJ asked the vocational expert to consider a person
with a full range of exertional capabilities with non-exertional limitations, with a history of reported fainting spells, no exposure to moving mechanical parts, electrical shock or high places. Due to the effects of the medication and physical/emotional problems, no detailed work or complex work. Minimum contact with the public.
Mr. Hurst testified that with these limitations a person would not be able to perform any of plaintiff's previous jobs. Mr. Hurst also testified that based on those limitations the hypothetical person could perform other occupations within the national and regional economies. Specifically, he found that the hypothetical person could successfully work as a small parts assembler, storage facility rental clerk and solder production line worker.
The second hypothetical given to the vocational expert assumed that:
in addition to the first hypothetical that . . . individual suffers from a condition where they lose consciousness one or two time a week for 5 to 10 minutes with the recovery time of up to one hour, and such episode preceded by a warning where they could either sit or lie down. Would they be able to do those jobs?
In response to this hypothetical, the vocational expert stated, "I don't believe so, Your Honor. It would result in an individual being off task for a little longer than what most employers would. allow."
IV. ANALYSIS A. Standard of Review
This Court reviews the Commissioner's decision to determine whether substantial evidence supports the decision and whether proper legal standards were applied. 42 U.S.C. § 405(g); Nguyen v. Shalala, 43 F.3d 1400, 1402 (10th Cir. 1994). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938)). A reviewing court, however, may neither reweigh the evidence nor substitute its judgment for that of the ALJ. White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001).
The Commissioner uses a sequential evaluation process in evaluating disability claims. 20 C.F.R. § 404.1520. "If at any point in the process the [Commissioner] finds that a person is disabled or not disabled, the review ends." Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988). The Commissioner considers, in sequence: (1) whether the claimant is currently working, (2) whether the claimant has a severe impairment, (3) whether the impairment meets or equals a "listed impairment", (4) whether the impairment prevents the claimant from doing past relevant work and (5) whether the impairment prevents the claimant from doing any kind of work. 20 C.F.R. § 404.1520. In this case, the ALJ denied plaintiff's request for benefits at step five of the sequential evaluation process. At step five, the ALJ bears the burden to prove that plaintiff can work at any lower level than his past relevant work. Haddock v. Apfel, 183 F.3d 1225, 1229-30 (10th Cir. 1999); Thompson v. Sullivan, 987 F.2d 1482, 1491 (10th Cir. 1993).
B. Step Five Evaluation
The Social Security Act provides that an individual
shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.
The ALJ found that plaintiff is "unable to do [her] previous work." However, at step five of the evaluation the ALJ found that plaintiff's impairments do not prevent her from engaging in "any other kind of substantial gainful work which exists in the national economy."
Plaintiff, however, argues that the ALJ erred at step five of the evaluation because her impairments completely preclude her from any substantial gainful employment. Specifically, plaintiff argues that the ALJ failed to adequately take into account plaintiff's heart problems, her medication for those heart problems and the symptoms resulting from both. The evidence shows that plaintiff was taking Paxil, Alprazolam and Atenol at the time of her alleged disability. Each of these medications carries labels warning users of possible side effects including dizziness, lightheadedness and weakness.
20 C.F.R. § 416.972 defines substantial work activity as work that involves doing significant physical or mental activities.
The ALJ did consider the symptoms resulting from both of these health problems in its findings of fact. The ALJ found that plaintiff "does have limitations as a result of her heart rhythm problems." He also stated that claimant "does have heart rhythm abnormality that may cause intermittent palpitations and even an episode of loss of consciousness." Finally, the ALJ included these findings within the hypothetical given to the vocational expert. He stated that the plaintiff has a "history of reported fainting spells." Therefore, the ALJ generally acknowledged in his findings that plaintiff suffered from weakness and other limitations as a result of her heart conditions. Although he did not specifically mention plaintiff's medication, he did find that plaintiff could lose consciousness, an extreme symptom of plaintiff's medication.
Plaintiff also argues that the ALJ improperly found plaintiff's credibility to be lacking. The ALJ stated that "claimants allegations that she is unable to perform any work activity are not found credible." In support of this finding, the ALJ noted that various physicians had stated that plaintiff appeared to be motivated to obtain disability benefits and was not compliant with medical treatment.
Dr. Helfer, a treating psychiatrist, stated that plaintiff "show[ed] little if any interest in improving her condition," and was making no effort to return to work even though her symptoms were controlled by medications. Dr. Arguello, plaintiff's treating physician noted that plaintiff was not taking medications appropriately in May 1998, and Dr. Helfer noted that plaintiff was not compliant with psychiatric treatment. Finally, Dr. Moore stated that treatment records were consistent with an individual who was motivated by secondary gain and that plaintiff was not compliant with treatment.
The ALJ's determination of credibility cannot be disturbed absent a failure of the ALJ to give specific, legitimate reasons for disbelieving the claimant's testimony. In this case, the ALJ's opinion as to plaintiff's credibility was supported by specific, legitimate reasons, and therefore the Court finds that this determination was proper. See Hamilton v. Secretary of Health and Human Servs., 961 F.2d 1495, 1499 (10th Cir. 1992) (explaining that "credibility is the province of the ALJ").
Plaintiff also claims that the ALJ's evaluation of the treating physicians' opinions was improper. An ALJ is required to "evaluate every medical opinion" he receives. 20 C.F.R. § 404.1527(9)(d), 416.927(d). Furthermore, he must "consider all relevant medical evidence of record in reaching a conclusion as to disability." Baker v. Bowen, 886 F.2d 289, 291 (10th Cir. 1989).
Generally the agency gives controlling weight to the opinion of the claimant's treating physician concerning the nature and severity of a claimant's impairments if the opinion is well-supported and not inconsistent with other evidence in the record. White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001). However, "a treating physician's opinion is not dispositive on the ultimate issue of disability." White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001). Such determination is reserved to the Commissioner. Id.
Plaintiff's first treating physician in this case was Dr. Fares Arguello. Mr. Arguello, first started treating plaintiff in April 1997. He diagnosed "depressive disorder NOS" and "anxiety disorder NOS" stemming from a traumatic incident at her place of employment. In December of 1998, Dr. Arguello wrote that plaintiff had "symptoms" of "depression, anxiety, and at times panic." He also noted that plaintiff "is unable at this time to work." However, he listed no objective findings at that time, and opined that plaintiff's diagnosis for recovery was good "with psychotherapy."
Dr. Ronald E. Brown, M.D. treated plaintiff for these subsequent health problems. On May 20, 1999, Dr. Brown saw plaintiff for complaints of "atypical" chest pain, increased heart rate, and shortness of breath on activity. However, the physical evaluations found normal blood pressure and pulse, no carotid bruits, and plaintiff's EGK was normal. A "very soft murmur" consistent with a flow murmur was noted, and point of maximal intensity was "perhaps slightly displaced laterally."
Later, in November 30, 1999 Dr. Brown stated that the monitor had shown "an accelerated junctional rhythm." Dr. Brown prescribed the medication noted above and "stated that plaintiff may well continue to have intermittent palpitations and even an episode of a loss of consciousness." Lastly, on March 22, 2000 Dr. Brown stated that plaintiff was seen in his cardiology clinic every three to four months, and that "[d]espite medical therapy, she continues to have symptomatic episodes of her rhythm problem."
Dr. Harvey U. Rishe, Ph.D. completed an insurance form on July 29, 1999 describing plaintiff's symptoms as "overwhelmed, heart arrhythmia, depression, anxiety, dizzy, passed out." Dr. Rishe diagnosed plaintiff as depressed and suffering from a large amount of stress. He opined that such stress was hard on plaintiff's heart and that she was always out of breath. Finally, he noted that plaintiff was indefinitely totally disabled from both her regular occupation and any other occupation.
The ALJ only partially accepted these doctors' testimony. He stated that the "evidence shows the claimant does have limitations as a result of her heart rhythm problems." The ALJ also incorporated into his first hypothetical Dr. Brown's assessment that plaintiff may have periods of time where she will lose consciousness. The vocational expert testified that these conditions would not prevent a person from performing any work in the national and regional economies.
The ALJ, however, did not adopt these doctors' opinions that this condition prevented plaintiff from working at all. He found that such statements "do not have a basis" because "they were without supporting evidence to substantiate the claim." See White, 271 F.3d at 1257. He also discounted their conclusions that "the claimant is 100% disabled and is emotionally and physically unable to work" because they were "not supported" but were also "without medical basis." Id.; Goatcher v. United States Dep't. of Health Human Servs., 52 F.3d 288, 290 (10th Cir. 1995).
These findings by the ALJ are supported by substantial evidence. There is little objective medical evidence to support these doctors' conclusions. Instead, a large part of these doctors' comments are merely notations of plaintiff's subjective complaints concerning her health. They are not well-supported and they are inconsistent with other doctor's opinions in the record. For example, Drs. Manwill, Helfor and Moore found plaintiff's symptoms to "be under control." They also noted that they believed plaintiff to be seeking disability benefits notwithstanding her actual health condition.
The ALJ could also properly discount the emphasis placed on Dr Arguello, Dr. Rishe and Dr. Brown's records because the ALJ found that plaintiff's problems were aggravated by stress from an incident at her former place of employment. Thus, the depression experienced by plaintiff could properly be categorized as "a situational problem." However, an "impairment must result from anatomical, physiological, or psychological abnormalities." 20 C.F.R. § 416.908. Accordingly, the ALJ could discount the effects of such "stress" in determining plaintiff's physical capabilities.
Finally, as noted above the ALJ found that the "claimants allegations [that] she is unable to perform any work activity are not found credible." Such a course of action is within the province of the ALJ as the finder of fact. An ALJ is not required to assign any weight to a treating physician's opinion that a claimant is "disabled" or "unable to work." Such determinations are reserved to the Commissioner. See 20 C.F.R. § 416.927(e)(1); Castellano, 26 F.3d at 1029. This is especially true when there are few objective medical tests, findings or analysis within the notes of the doctors making the evaluations. Therefore, the ALJ properly discounted the opinions of Drs. Rische, Brown, and Arguello by providing specific, legitimate reasons for doing so.
Finally, plaintiff claims that the ALJ's decision is not supported by substantial evidence because the ALJ relied on a flawed hypothetical to reach its determination. In the first hypothetical the ALJ asked the vocational expert to consider a person
with a full range of exertional capabilities with non-exertional limitations, with a history of reported fainting spells, no exposure to moving mechanical parts, electrical shock or high places. Due to the effects of the medication and physical/emotional problems, no detailed work or complex work. Minimum contact with the public.
The vocational expert then testified that with these limitations, a person would not be able to perform any of plaintiff's previous jobs. He also testified, however, that based on those limitations "there are a significant number of jobs in the national economy that [plaintiff] could perform. Examples of such jobs include work as a small parts assembler . . . a storage rental clerk . . . and a solder production line worker . . ."
In this case, the ALJ found that plaintiff's ability to perform the requirements of some jobs was limited by exertional requirements. The ALJ specifically found that plaintiff's residual function capacity limited her to "light work." Such a determination is clearly a limitation on plaintiff's exertional abilities.
20 C.F.R. § 404. 1569a states:
Limitations are classified as exertional if they affect your ability to meet the strength demands of jobs. The classification of limitation as exertional is related to the United States Department of Labor's classification of jobs by various exertional levels (sedentary, light, medium, heavy, and very heavy) in terms of the strength demands for sifting, standing, walking, lifting, carrying, pushing, and pulling. Limitations or restrictions which affect your ability to meet the demands of jobs other than sitting, standing, walking, lifting, carrying, pushing or pulling, are considered nonexertional.
The defendant concedes that the ALJ described no exertional limitations in the first hypothetical question despite the ALJ's previous finding that plaintiff could only perform "light" work existing in the national economy. However, such a discrepancy does not preclude the ALJ's reliance on the vocational expert's response in this case because the vocational expert also concluded that plaintiff could perform light jobs in the national economy. Therefore, the Court finds that the inclusion of the exertional requirements in the hypothetical by the ALJ would not have resulted in a different conclusion by the vocational expert. Thus, the ALJ could properly rely on the vocational expert's response to the first hypothetical. More importantly, the testimony of the vocational expert is sufficient to establish that plaintiff's exertional capacities were consistent with the jobs listed by the vocational expert in his response to the first hypothetical.
Plaintiff also argues that the second hypothetical was a more accurate description of plaintiff's health and therefore the ALJ should be bound the vocational expert's answer. However, as noted above, the ALJ found plaintiff's credibility to be lacking with respect to the frequency and severity of her episodes of loss of consciousness. Therefore, the vocational expert's response to the second hypothetical was not required to be accepted by the ALJ.