Opinion
Case No. 02-4176-JAR
March 23, 2004
MEMORANDUM ORDER
Plaintiff Deborah Hubbard brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of Defendant Commissioner of Social Security's denial of her application for a period of disability and disability insurance benefits under Title II of the Social Security Act. According to plaintiff, defendant failed to accord adequate weight to the opinion of her treating physician, and failed to establish that plaintiff could perform other jobs despite her limitations. As explained in more detail below, the Court rejects each of Plaintiff's arguments and affirms defendant's decision.
I. Procedural Background
On July 3, 2000, plaintiff filed her application for a period of disability and disability insurance benefits, claiming disability since January 1, 1999, due to fibromyalgia and carpal tunnel syndrome. The application was denied both initially and upon reconsideration. At Plaintiff's request, an administrative law judge ("ALJ") held a hearing on March 5, 2002, at which both plaintiff and her counsel were present. On April 25, 2002, the ALJ rendered a decision denying all benefits, on the basis that plaintiff was not under a "disability" as defined by the Social Security Act. After the ALJ's unfavorable decision, plaintiff requested review by the Appeals Council; her request for review was denied on October 10, 2002. Thus, the ALJ's decision is the final decision of defendant.
II. Standard of Review
Judicial review under 42 U.S.C. § 405(g) is limited to whether defendant's decision is supported by substantial evidence in the record as a whole and whether defendant applied the correct legal standards. The Tenth Circuit has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." In the course of its review, the court may not reweigh the evidence or substitute its judgment for that of defendant.
See White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001) (citing Castellano v. Sec `y of Health Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994)).
Id. (quoting Castellano, 26 F.3d at 1028).
Id.
III. Relevant Framework for Analyzing Claim of Disability and the ALJ's Findings
"Disability" is defined in the Social Security Act as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . . ." The Social Security Act further 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. . . ."
Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (quoting 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A) (1982)).
Id. (quoting 42 U.S.C. § 423(d)(2)(A), 1382c(a)(3)(B) (1982 Supp. Ill 1985)).
The Social Security Administration has established a five-step sequential evaluation process for determining whether a claimant is disabled, and the ALJ in this case followed the five-step process. If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary. Step one determines whether the claimant is presently engaged in substantial gainful activity. If she is, disability benefits are denied. If she is not, the decision maker must proceed to the second step. Here, the ALJ determined that plaintiff was not engaged in substantial gainful activity and, thus, properly proceeded to the second step.
See id. (citing 20 C.F.R. § 404.1 520, 416.920 (1986)).
Id.
Id.
Id.
Id.
The second step of the evaluation process involves a determination of whether "the claimant has a medically severe impairment or combination of impairments." This determination is governed by certain "severity regulations," is based on medical factors alone, and, consequently, does not include consideration of such vocational factors as age, education, and work experience. Pursuant to the severity regulations, the claimant must make a threshold showing that her medically determinable impairment or combination of impairments significantly limits her ability to do basic work activities. If the claimant is unable to show that her impairments would have more than a minimal effect on her ability to do basic work activities, she is not eligible for disability benefits. If, on the other hand, the claimant presents medical evidence and makes the de minimis showing of medical severity, the decision maker proceeds to step three. The ALJ in this case concluded that Plaintiff's atypical fibromyalgia syndrome and carpal tunnel syndrome are impairments that satisfied the severity requirement and, thus, the ALJ proceeded to step three.
(quoting Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987)).
Id. (citing 20 C.F.R. § 404.1520(c), 416.920(c) (1986)).
Id. at 750-51 (citing20 C.F.R. §§ 404.1 521(b), 416.921(b) (1986)).
Id. at 751.
Id.
In step three, the ALJ "determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity." If the impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to benefits. If not, the evaluation proceeds to the fourth step, where the claimant must show that the "impairment prevents [the claimant] from performing work he has performed in the past." If the claimant is able to perform her previous work, she is not disabled. With respect to the third step of the process in this case, the ALJ determined that Plaintiff's impairments were not listed or medically equivalent to those listed in the relevant regulations. At the fourth step, the ALJ concluded that plaintiff was unable to perform past relevant work.
Id. (citing 20 C.F.R. § 404.1520(d), 416.920(d) (1986); Bowen v. Yuckert, 482 U.S. at 141).
Id.
Id. (citing 20 C.F.R. § 404.1520(e), 416.920(e) (1986); Bowen v. Yuckert, 482 U.S. at 141).
Id.
Thus, the ALJ proceeded to the fifth and final step of the sequential evaluation process-determining whether the claimant has the residual functional capacity (RFC) "to perform other work in the national economy in view of [her] age, education, and work experience." At that point, the ALJ properly shifted the burden of proof to defendant to establish that plaintiff retains the capacity "to perform an alternative work activity and that this specific type of job exists in the national economy." At this step, the ALJ concluded that plaintiff was not disabled, a conclusion that rested on a finding that Plaintiff's allegations regarding her limitations were not credible, and that although she has some limitations, she is able to perform sedentary work not requiring repetitive use of the hands or high levels of sustained concentration. The ALJ concluded that plaintiff has the residual functional capacity to perform a significant range of sedentary work, for example jobs such as cashier, information clerk and telephone solicitor. The vocational expert acknowledged that if plaintiff is unable to work an entire eight hour workday, she is unable to work or engage in substantial gainful activity.
See id. (quoting Bowen v. Yuckert, 482 U.S. at 142).
See id. (citations omitted); accord White, 271 F.3d at 1258 (at fifth step, burden of proof shifts to Commissioner to show that claimant retains the functional capacity to do specific jobs).
IV. Analysis of Plaintiff's Specific Arguments
Plaintiff contends that the ALJ erred in three respects: (a) he failed to give any weight to the treating doctor's opinions relating to Plaintiff's functional abilities, including manipulative, postural and environmental limitations; (b) his determination of Plaintiff's residual functional capacity (RFC) is not supported by any medical or vocational evidence, as required by SSR 96-8, in that the RFC does not contain any exertional or positional limitations; and (c) he erred in finding that plaintiff had refused to undergo medical treatment necessary to control her fibromyalgia because he failed to consider the reasonableness of her refusal in light of the doctor's current recommended course of treatment.
Plaintiff contends that defendant failed to give any weight to the opinion of her treating physician, Dr. Hatton, that plaintiff was disabled. A treating physician's opinion that a patient is disabled is not dispositive, but a treating physician's opinion about the nature and severity of the claimant's impairments should be given controlling weight if it is "well-supported . . . and is not inconsistent with other substantial evidence." In addition to its consistency with other evidence, the court examines a treating physician's opinion with several factors in mind, including the length of the treatment relationship, the frequency of examination, and the extent to which the opinion is supported by objective medical evidence. In short, the ALJ cannot disregard a treating physician's opinion that a claimant is disabled without giving legitimate and specific reasons for doing so.
White, 271 F.2d at 1259 (quoting 20 C.F.R. § 404.1527(d)(2)).
Id. (citing 20 C.F.R. § 404.1527(d)(2)).
See Goatcher v. United States Dep't of Health Human Servs., 52 F.3d 288, 290 (10th Cir. 1995) (citing Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987)).
The ALJ stated that he had specifically considered the opinion of the treating physician, Dr. Hatton, but found that it was ". . . not entitled to great weight, as it is inconsistent with the limited signs and findings, the lack of significant treatment, and the inconsistencies described above, all of which demonstrate that the claimant is not disabled." The ALJ articulated specific reasons for not giving Dr. Hatton's opinion substantial weight: it was inconsistent with the limited clinical signs and findings; it was inconsistent with the lack of significant treatment sought or received by plaintiff; and it was inconsistent with other evidence in the record, detailed by the ALJ. The Court analyzes the legitimacy of the ALJ's articulated reasons, in turn.
The ALJ explained that Dr. Hatton's opinion that plaintiff was disabled by fibromyalgia was inconsistent with the limited clinical signs and findings in this case. The symptoms of fibromyalgia are largely subjective: pain, fatigue, disturbed sleep, stiffness, and multiple tender spots. There are no laboratory tests to identify its presence or severity.
Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996); Biri v. Apfel, 4 F. Supp.2d 1276, 1279 (D. Kan. 1998).
Glenn v. Apfel, 102 F. Supp.2d 1252, 1258 (D. Kan. 2000); Anderson v. Apfel, 100 F. Supp.2d 1278, 1286 (D. Kan. 2000); Ward v. Apfel, 65 F. Supp.2d 1208, 1213 (D. Kan. 1999).
The presence of multiple tender pressure points, however, is a clinical sign of fibromyalgia. Dr. Abdou, a rheumatologist who examined plaintiff in February 1997 on referral from Dr. Hatton, found the presence of multiple tender pressure (or trigger) points. The ALJ discounted this finding, noting that "[a]lthough there is evidence of some fibromyalgia trigger points, these are only a handful, not enough to meet the requirements of a classic fibromyalgia diagnosis." Dr. Abdou found that plaintiff had "tender trigger points at the mild trapezius, suboccipital area, mild tenderness opposite the costochondral junctions anteriorly and opposite both trochanters, and mild tenderness opposite the left gluteal area," which did not "fit the classical criteria of fibromyalgia." But, Dr. Abdou diagnosed "incomplete or atypical fibromyalgia syndrome" noting that plaintiff also had other symptoms of fibromyalgia, " fatigue, musculosketal pain, headache, interrupted sleep, and poor memory and concentration."
Sarchet, 78 F.3d at 306; Biri, 4 F. Supp.2d at 1279.
See Glenn, 102 F. Supp.2d at 1259 (A patient must be positive on at least eleven of the eighteen tender points to be diagnosed with fibromyalgia).
Since Dr. Abdou's findings in 1997, no other treating physician has recorded the number of tender trigger points. In August 2000, Dr. Verstraete, a consulting physician examined plaintiff, and like Dr. Abdou, diagnosed atypical fibromyalgia. Dr. Verstraete found all trigger points positive, but found all controls positive, too. The record does not explain the significance of all control points being positive vis a vis all trigger points being positive. This Court surmises that the ALJ considered this in concluding that plaintiff was exaggerating her symptoms. Absent medical evidence or testimony, or reference to any legitimate medical source, discounting the finding that all trigger points are positive because all control points were positive too, constitutes an overstepping of the ALJ's bounds into the province of medicine, and must be avoided.
In May 2002, after the ALJ had rendered his decision, plaintiff was examined by another rheumatologist, Dr. Letourneau, on referral from Dr. Hatton. Dr. Letourneau found "multiple paired tender points in the lateral epicondyles, trapezius occipital, sacroiliac, and anserine bursa areas." The Court need not consider this evidence. See Tollett v. Barnhart, 60 Fed. Appx. 263, 265 (10th Cir. 2003) ("Because the [medical] records pertaining to [claimant's] depression were created . . . after the ALJ's . . . decision, we do not consider those records"); Thompson v. Harris, 508 F. Supp. 134, 138 (D. Kan. 1981) ("The court cannot consider evidence not in the record, as this review is not a trial de novo.")
See Miller v. Chater, 99 F.3d 972, 977 (10th Cir. 1996); see also Kemp v. Bowen, 816 F.2d 1469, 1476 (10th Cir. 1987) (While the ALJ is authorized to make a final decision concerning disability, the ALJ cannot interpose their own medical expertise over that of a physician, especially when that physician is the regular treating doctor for the disability applicant).
Even if the ALJ inappropriately interpreted Dr. Verstraete's finding that all control points were positive, that does not render the ALJ's opinion reversible. For, in not giving great weight to Dr. Hatton's opinion that plaintiff was disabled, the ALJ properly relied on a host of factors. Essentially, the ALJ found that many of plaintiff's subjective complaints, which formed the basis of Dr. Hatton's opinion, were inconsistent with other evidence in the record, and not credible. Rejecting the opinion of a treating physician because it appears to be based on the claimant's subjective complaints is a sufficiently specific and legitimate reason for doing so.
See Boss v. Barnhart, No. 02-7114, 2003 WL 21357260, at *3 (10th Cir. June 12, 2003) (citing Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994)).
Dr. Hatton relied on Plaintiff's subjective complaints of severe pain experienced on a daily basis. However, from January 1999 to September 1999, during the period of alleged disability, plaintiff had received unemployment benefits, which required her certification that she was able to work. Similarly, from September 1999 to April 2000, plaintiff worked as an assistant manager for a retail store. Plaintiff testified that she was employed by a friend, who allowed her to do no more than just be present to prevent theft from the store; that is she did "favored work," but other testimony by the plaintiff and her husband belies this. Plaintiff admitted that she packed purses in boxes when the store closed, and did bookkeeping, albeit with her husband's assistance. The ALJ also disbelieved that any employer would have paid plaintiff the income she was paid, for merely being present in the store.
Plaintiff testified that her pain was so severe that she spent most of the day lying or sitting down with a heating pad; and on some days she could not get out of bed. She testified that her husband did most of the housework. Her husband testified that on her better days, plaintiff did quite a bit of light household chores and laundry, and she occasionally dusted, ironed and swept and mopped the floors. Plaintiff testified that her family moved from a house to a smaller trailer because of her difficulty in climbing stairs; plaintiff's husband testified that the move was unrelated to plaintiff's disability.
Plaintiff's husband submitted an unsworn letter after the ALJ's decision modifying his testimony about the reason for the move and the extent of plaintiff's work around the house.
Contrary to Plaintiff's complaints and Dr. Hatton's findings, in his August 2000 examination of plaintiff, Dr. Verstraete observed that plaintiff had: only mild difficulty getting on and off the examining table; mild difficulty with heel and toe walking; mild difficulty hopping; and moderate difficulty squatting and arising from the sitting position. This is consistent with the ALJ's observation during the lengthy evidentiary hearing in April 2002, that plaintiff experienced no apparent discomfort, but she was slow to stand up from a sitting position. Moreover, during the examination, Dr. Verstraete noted that plaintiff "put forth questionable efforts during movement resistance testing and a bending exercise," and stated "today the exam is somewhat limited as she resists movement."
The Court surmises that the ALJ considered these statements of Dr. Verstraete as further evidence that plaintiff was exaggerating her symptoms. The ALJ also properly considered other inconsistencies in discounting Plaintiff's subjective complaints of pain. Plaintiff has not participated in an exercise program, despite being encouraged to do so by Dr. Hatton and Dr. Abdou. In 1997, Dr. Abdou provided plaintiff with instructions and specific therapeutic exercises.
In rejecting some of plaintiff's subjective complaints of pain as not credible, the ALJ properly evaluated Plaintiff's credibility under the factors outlined in Luna v. Bowen, Under Luna, the ALJ must decide whether a claimant's subjective claims of pain are credible, considering such factors as a claimant's persistent attempts to find relief for her pain and her willingness to try any treatment prescribed, regular use of crutches or a cane, regular contact with a doctor, the claimant's daily activities, and the dosage, effectiveness, and side effects of medication. Moreover, the ALJ must give specific reasons why he or she rejects a claimant's subjective complaints of pain. Ultimately, credibility determinations "are peculiarly the province of the finder of fact," and should not be upset if supported by substantial evidence. The Court finds that the ALJ satisfied these requisites and his credibility determination is therefore given deference by this Court.
834 F.2d 161 (10th Cir. 1987).
Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000) (citing Luna, 834 F.2d at 165-66).
White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001) (citing Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995)).
Id. (citing Kepler, 68 F.3d at 390-91).
To be sure, defendant must generally give greater weight to the opinions of a treating physician than that given to examining or consulting physicians who do not observe, examine and treat the claimant over the same period of time. But if a treating physician's opinion is inconsistent with other medical evidence, the ALJ's task is to examine the other physicians' reports to see if they outweigh the treating physician's report. The ALJ evaluates the relative strength of the physicians' opinions, giving consideration to: (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 or not 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.
Washington v. Shalala, 37 F.3d 1437, 1440-41 (10th Cir. 1994); Kemp v. Bowen, 816 F.2d 1469, 1476 (10th Cir. 1987) (treating physician's opinion generally accorded great weight because a treating physician is usually more familiar with a claimant's medical condition than other physicians).
Goatcher, 52 F.3d at 290.
In light of those factors, the Court cannot find that the ALJ's reliance on Dr. Verstraete's observations and opinions in error in this case. First, although Dr. Hatton had treated plaintiff over a period of years, he only saw plaintiff twice during the nine months before the hearing, even though plaintiff was allegedly in severe pain during the period. And, Dr. Hatton saw plaintiff for medication checks, not full examinations. In fact, a review of Dr. Hatton's records reveals that his findings about Plaintiff's physical limitations do not reference his own clinical observations; instead, his findings appear to merely record the history related to him by plaintiff. The opinion of a treating physician may be rejected if it is brief, conclusory, and unsupported by medical evidence.
Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987).
The ALJ relied on other inconsistencies in Plaintiff's testimony in discounting Plaintiff's subjective complaints of pain and physical limitations, and in giving greater weight to Dr. Verstraete's opinions than Dr. Hatton's opinions. Plaintiff testified that she was unable to hold a pen and other items for long and frequently dropped things such as plates and cups. Dr. Hatton stated that plaintiff had poor grip strength, but did not reference any clinical observation of the same. But, in his August 2000 examination, Dr. Verstraete, the consulting physician, found that plaintiff had intact grip strength and dexterity. Other evidence supports Dr. Verstraete's finding in this regard. Plaintiff testified that she did bookkeeping work for her employer in 1999 and 2000, which would have been entirely impossible had she been unable to hold a pen for more than a few seconds as she also testified.
Given this Court's de novo determination that the ALJ appropriately found many of plaintiff s subjective complaints exaggerated or not credible, and appropriately adopted the opinions of Dr. Verstraete rather than Dr. Hatton, the Court concludes that the RFC in this case was appropriately determined. The RFC was based on findings that plaintiff had no postural, manipulative, visual, communicative or environmental limitations. Dr. Verstraete's opinion on Plaintiff's limitations was expressly based on clinical observations and findings; Dr. Hatton's opinion was apparently based on Plaintiff's self reported history, as the record lacks any significant and express clinical observations and findings by Dr. Hatton. The RFC was further based on the following exertional limitations: occasionally and/or frequently lift and/or carry ten pounds; stand and/or walk at least two hours in an eight hour workday; sitting about six hours in an eight hour workday, and unlimited pushing and/or pulling.
Significantly, the RFC assumes that plaintiff can work an eight hour workday, contrary to Plaintiff's subjective complaints about the severity, frequency and effect of her pain. But, the Court finds that the ALJ's determination that those complaints were largely exaggerated or not credible, is corroborated by the clinical observations of Dr. Verstraete, and the ALJ's observations; plus Plaintiff's relevant testimony is internally inconsistent, as well as inconsistent with the testimony of her husband.
Accepting the ALJ's findings as appropriate and supported by substantial evidence, the Court concludes that the RFC was appropriately determined. The hypothetical question posed to the vocational expert was appropriately framed; and the vocational expert's opinion that plaintiff can perform sedentary unskilled work in the national economy was appropriately adopted by the ALJ.
Gay v. Sullivan, 986 F.2d 1336, 1341 (10th Cir. 1993) (A vocational expert's testimony can provide a proper basis for an ALJ's determination where the claimant's impairments are reflected adequately in the hypothetical inquiries to the expert).
Accordingly, the Court affirms the decision of defendant that plaintiff is not disabled.
IT IS THEREFORE ORDERED BY THE COURT THAT Plaintiff's Complaint (Doc. #1) is denied and defendant's decision denying plaintiff disability benefits is affirmed.