Opinion
No. 99-4044-SAC
September 27, 2001
Steven M. Tilton, [COR LD NTC], Tilton Tilton LLP, Topeka, Ks, for Roger D. Killian, plaintiff
Jackie A. Rapstine, [COR LD NTC], Office of U.S. Attorney, Topeka, Ks., for Social Security, Commissioner of, Kenneth F. Apfel, Commissionter of Social Security, defendant
MEMORANDUM AND ORDER
This is an action to review the final decision of the defendant Commissioner of Social Security ("Commissioner") denying the claimant Roger D. Killian's applications for disability insurance benefits under Title II of the Social Security Act ("Act") and for supplemental security income ("SSI") under Title XVI of the Act. When the case became ripe for decision upon the filing of the parties' briefs pursuant to D.Kan. Rule 83.7, the district court referred it to the magistrate judge for a report and recommendation. On August 15, 2001, Magistrate Judge O'Hara filed his proposed findings of fact and conclusions of law recommending that the district court affirm the Commissioner's decision which had denied the claimant's applications. (Dk. 15). The case now comes before the district court upon the plaintiff's timely filed objections to this report and recommendation. (Dk. 16).
PROCEDURAL BACKGROUND
Because the report and recommendation fully and accurately sets forth these matters, the district court simply adopts that part of the order. For ease of understanding and reference, the court will summarize that background. The plaintiff first applied for benefits in December of 1993 and losing at each administrative level sought judicial review. United States District Court Judge Richard Rogers remanded the case in 1998 based on the lack of substantial evidence in support of the administrative law judge's ("ALJ's") finding that Killian had worked after his injury in May of 1991 until his termination in April of 1992 and based on the ALJ's failure to follow precedent and to consider the totality of the evidence relevant in evaluating the credibility of the claimant's pain testimony. On remand, the ALJ conducted a supplemental hearing and promptly issued his decision finding that the claimant was not under a disability at any relevant time through the date of his decision.
STANDARD OF REVIEW, ALJ'S FINDINGS, SUMMARY OF PLAINTIFF'S ARGUMENTS, AND SUMMARY OF FACTS
The magistrate judge's report and recommendation fully and fairly sets forth the law, findings and facts relevant to this case on review. The court incorporates the same for purposes of its decision here, as the claimant lodges no objection to those sections of the report and recommendation.
ANALYSIS AND DISCUSSION
"De novo review is statutorily and constitutionally required when written objections to a magistrate's report are timely filed with the district court." Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations omitted). Rule 72(b) of the Federal Rules of Civil Procedure requires a district judge to "make a de novo determination upon the record, . . ., of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule." Those parts of the report and recommendation to which there has been no objection are taken as true and judged on the applicable law. See Campbell v. United States District Court for the Northern Dist. of California, 501 F.2d 196, 206 (9th Cir.), cert. denied, 419 U.S. 879 (1974); see also Summers v. Utah, 927 F.2d at 1167 (holding that "[i]n the absence of timely objection, the district court may review a magistrate's report under any standard it deems appropriate"). The district court has considerable judicial discretion in choosing what reliance to place on the magistrate judge's findings and recommendations. See Andrews v. Deland, 943 F.2d 1162, 1170 (10th Cir. 1991) (citing United States v. Raddatz, 447 U.S. 667 (1980)), cert. denied, 502 U.S. 1110 (1992). When review is de novo, the district court is "`free to follow . . . or wholly . . . ignore'" the magistrate judge's recommendation, but it "`should make an independent determination of the issues'" without giving "`any special weight to the prior'" recommendation. Andrews v. Deland, 943 F.2d at 1170 (quoting Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458, 1464 (10th Cir. 1988)). In short, the district court may accept, reject or modify the magistrate judge's findings, or recommit the matter to the magistrate with instructions. See 28 U.S.C. § 636 (b)(1)(C) (1994).
The plaintiff makes five specific objections to the magistrate judge's report and recommendation. In considering these objections, the district court has independently reviewed the entire administrative record, Judge Roger's earlier decision, the magistrate judge's report and recommendation, and the plaintiff's written objections. The court addresses those objections seriatim.
Objection A
First, the plaintiff argues the record does not support the magistrate judge's conclusion that the ALJ understood the plaintiff's diagnosis of reflect sympathetic dystrophy syndrome ("RSDS"). The magistrate judge concluded the ALJ had carefully evaluated the medical evidence and testimony in the case and the record did not support the plaintiff's contention that the ALJ had not understood the plaintiff's medical condition. (Dk. 15, p. 22).
To demonstrate the ALJ's lack of understanding, the plaintiff refers to the ALJ's written decision that states he "has also carefully considered the medical evidence in the record, and finds that it supports a finding that claimant does not suffer significant pain or limitations from his alleged impairments." (Tr. 226). The plaintiff construes this statement to be a finding that the plaintiff "did not have any limitations from pain." (Dk. 16, p. 2) (underlining added). The plaintiff insists such a finding is inconsistent with a diagnosis of RSDS and the medical literature that describes this condition as disabling to most patients.
Rather than finding the plaintiff to be without any RSDS-caused impairment, the ALJ concluded the impairments, including RSDS, had not caused "significant . . . limitations." (Tr. 226). The ALJ discussed the limitations to the left arm and shoulder that had been recorded by the different physicians who had seen the plaintiff. The ALJ specifically mentioned a limited range of motion, decreased grip strength, some atrophy of the left arm, and pain of the shoulder with diminished sensation. The ALJ referred to a number pieces of medical evidence that suggested the impairment was not significant, including the diagnosis of "mild reflex sympathetic dystrophy" made by Dr. Christian Stehr, the physician who evaluated the plaintiff in 1995 at the request of the plaintiff's former attorney in this proceeding. (Tr. 172). After a de novo review of the record, the court concurs with the magistrate judge that the record does not support any notion that the ALJ failed to understand and appreciate the significance of the RSDS diagnosis.
Objection B
The plaintiff complains that the magistrate judge simply concluded that the ALJ had found inconsistencies in the record that discredited the plaintiff's testimony of disabling pain without stating "with any specificity" the substantial evidence in support of the ALJ's so-called inconsistencies. (Dk. 16, p. 3). The plaintiff also objects to the magistrate judge's statement that the "[m]ost compelling of these inconsistencies" was the plaintiff's testimony he had not seen a doctor or taken prescriptive medication for what he described as severe and constant pain. The plaintiff complains the magistrate judge erred in not only rejecting his testimony about lacking money for medical treatment and prescription drugs but in not following the law relevant to this issue. Finally, the plaintiff takes issue with the magistrate judge's comment about over-the-counter medications, because the ALJ had not inquired into this area.
The ALJ's decision articulates in detail the evidence establishing what he found to be inconsistencies with the plaintiff's pain testimony. There is no obligation on the magistrate judge or the district judge to repeat that evidence in its order on review. It is enough that the court finds the evidence to be substantial in light of the whole record. The court here is satisfied that the ALJ's credibility findings are closely and affirmatively linked to substantial evidence. In support of its conclusion, the court will refer to some of the inconsistencies and the substantial evidence of record supporting them.
The plaintiff testified in August of 1998 that he had not received any medical treatment for his condition since his visit with Dr. Stehr in January of 1995 and that he had not taken any prescriptive medications since sometime shortly after that visit. (Tr. 256). The plaintiff further testified at the supplemental hearing that his reason for not seeing a physician or taking medication was that he could not afford this medical treatment. (Tr. 257). The plaintiff acknowledged he had not sought out public medical care available to the indigent. (Tr. 257). The plaintiff also submitted as an exhibit at the hearing his handwritten statement that stated in relevant part: "Because if your judgment is to award Disability it will mean that I will be able to get Medical help again. It will open the doors once again that has been slammed in our faces. And afford me the relief through medication to be able to possibly get some rest at night. Which would be the greatest thing next to fixing this injury." (Tr. 334). Between the plaintiff's substantial lump sum workers' compensation award, his wife's modest income, and the availability of indigent medical services, the plaintiff had options for seeking out medical treatment if his pain were as severe as he described. The court also notes that three years earlier in August of 1995, some seven months after his last physician visit, the plaintiff told the ALJ that he had no plans for seeking additional medical treatment because he believed there was nobody that could help him. (Tr. 207). That the plaintiff has changed his reasons for not seeking medical treatment makes the plaintiff's latest reason even less credible.
The medical evidence of record substantially supported the ALJ's credibility finding on the plaintiff's pain testimony. The physical examinations did confirm an impairment but not to the degree testified to by the plaintiff. Dr. Stehr's diagnosis was "mild" RSDS. There is also evidence that others, including physicians, either questioned the cause of the plaintiff's pain symptoms and/or believed he had exaggerated them. In a letter dated April 15, 1993, Dr. Prostic wrote:
His clinical course is not nearly as good as one would expect if thoracic outlet syndrome were the only condition affecting his progress. Presently, I do not feel that any further physical evaluation or treatment is likely to be beneficial. From a purely orthopaedic and physical point of view, my belief is that Mr. Killian has 15 percent permanent partial impairment of the body as a whole on a functional basis. I am pessimistic that Mr. Killian desires return to work and for that reason I am pessimistic that vocational rehabilitation will enable him to return to employment.
(Tr. 149). In October of 1992, Dr. E. Bruce Toby reported:
Although he has thoracic outlet syndrome, his symptoms are far in excess of what we would normally see. Reflex sympathetic dystrophy is a possibility, although his physical exam is certainly not consistent with an RSD at this point. I do not feel comfortable with trying to give a disability rating to this gentleman whose subjective complaints are many and quite severe, and yet his objective studies are essentially negative. Mr. Killian would like to have his EMG and PNCV's repeated and also, if possible, to see a thoracic surgeon in Topeka because the patient describes significant discomfort when riding in a car. I certainly do not think that this gentleman's main problem is a shoulder strain. I do not think that a shoulder strain in any way would explain his symptoms.
(Tr. 130). An evaluator at a work recovery center August of 1993 reported the following about the plaintiff:
His discomfort complaints were multiple and involved neck, shoulder, chest arm and hand. Majority of his discomfort expressions were exaggerated with moaning, gasps, facial grimmaces, eyes closed, and distraught appearance. Heart rate was monitored during testing and did not reflect an increase during his reports of extreme discomfort. There is a correlation between increased heart rate and discomfort.
(Tr. 327).
Besides the absence of medical treatment and the presence of contradictory medical evidence, the ALJ identified other inconsistencies with the plaintiff's pain testimony and the evidence of record supporting them. When he applied for unemployment compensation in April of 1992, the plaintiff represented that he was willing and able to work. (Tr. 252). The plaintiff's explanation for doing so does not diminish the significance of the fact that he knowingly and willingly made inconsistent representations of his physical condition to two different governmental agencies in an effort to receive public assistance. "`Though not conclusive, this evidence has adverse effects on plaintiff's credibility and provides evidence that she was not disabled. Jernigan v. Sullivan, 948 F.2d 1070, 1074 (8th Cir. 1991).'" Allen v. Apfel, 54 F. Supp.2d 1056, 1064 n. 1 (D. Kan. 1999) (quoting Dailey v. Chater, No. 95-2021-KHV, 1995 WL 534660, at *6 (D. Kan. Aug. 4, 1995)), aff'd, 216 F.3d 1086 (10th Cir. Jun. 21, 2000) (Table). Finally, observing that the transcript of the plaintiff's pain testimony is filled with indicia of exaggeration and magnification, the court can find no basis in the record for second-guessing or even seriously questioning the credibility evaluation rendered by the ALJ after hearing the plaintiff's live testimony.
Objection C
The magistrate judge reported that the ALJ's findings were not inconsistent with the opinions held by the plaintiff's health care providers. The plaintiff objects that the report and recommendation does not specify the evidence of record in support of that conclusion or address each of the arguments advanced in her brief
The evidence fully sustains the magistrate judge's impression of the ALJ's findings and the medical evidence of record. The plaintiff argues that the ALJ relied on selective portions of the medical record, construed those portions in isolation, ignored the totality of the medical evidence, and disregarded the ultimate medical opinions. The court can find nothing in the record that sustains the plaintiff's arguments. The ALJ accepted the diagnosis of RSDS and the objective medical evidence confirming a "severe" impairment of the left shoulder. (Tr. 230). The ALJ, however, found that the evidence could not sustain a finding that the impairments were so severe as to preclude him from sedentary work. The plaintiff's brief on appeal does not focus his argument on this narrower issue, and he does not identify any reports of examining or treating physicians that were rejected by the ALJ and that necessarily established the plaintiff was unable physically to perform sedentary work.
There is no dispute that Robert Layton, a human resources specialist with the Kansas Department of Human Resources, is not qualified to render any qualified medical opinion on physical capability. The ALJ properly described Layton's opinion on "employability" as being based exclusively on the plaintiff's subjective complaints. The court finds no error in the ALJ reading Layton's letter as little more than an opinion that a person with the plaintiff's subjective complaints of pain would not be employable. Indeed, the ALJ acknowledged the same at the hearing that if he credited everything that the plaintiff had said about his pain and limitations then the plaintiff would not be employable. (Tr. 294).
Objection D
The magistrate judge found that the ALJ had properly included and considered the relevant and significant impairments that were supported by the evidence. The plaintiff objects that the report and recommendation does not specify what reasons or evidence support this finding. Once again, the ALJ's decision speaks for itself: "the medical evidence establishes that he has no other significant impairment and his complaints of vision problems, back pain, and headaches are not supported by objective evidence or treatment or evaluation from acceptable medical sources." (Tr. 225). The plaintiff's citations to the record do not show the ALJ's conclusion to be erroneous. Indeed, the record fully supports the ALJ's finding in this regard. The plaintiff's objection is meritless.
Objection E
The magistrate judge concluded that the ALJ properly included in his hypothetical questions only those impairments found to be credible and supported by the medical evidence. The plaintiff objects that there is "significant evidence showing that plaintiff has significant deficiencies in concentration, persistence and/or pace." (Dk. 16, p. 6). The plaintiff further objects to the magistrate judge's finding that there was no evidence to show that his right eye impairment "is severe or would preclude plaintiff from performing any of the sedentary, unskilled jobs which the vocational expert testified plaintiff could perform." (Dk. 15, pp. 21-22).
This objection simply rehashes his prior arguments over the ALJ's credibility determinations. What the plaintiff argues to be evidence of the plaintiff's deficiencies with concentration, persistence and/or pace is for the most part the plaintiff's own subjective complaints. As for what others may have observed as the plaintiff's difficulties in these areas, the evidence shows that even they questioned the genuineness of the plaintiff's difficulties. (Tr. 327).
Finally, the plaintiff points to no evidence of record contradicting the conclusion that his vision problems would not preclude him from performing the sedentary, unskilled jobs identified by the ALJ. The plaintiff complains that the ALJ should have included the vision problem as an impairment in his hypothetical. It should be noted first that the plaintiff's counsel cross-examined the vocational expert and did not include the vision deficiency in his hypothetical question. More importantly, the medical evidence shows the vision deficiency dates back to eye surgeries that occurred in 1978 and 1979 from which the plaintiff was able to return to his former employment that included the operation of forklifts and computers. There is no basis in record for believing that the vision impairment would have affected the plaintiff's ability to perform the sedentary jobs of surveillance systems monitor, telephone solicitor or information clerk.
In sum, none of the plaintiff's objections shows errors of fact or law in the magistrate judge's report and recommendation. The court finds substantial evidence in the record to support the commissioner's decision to deny the plaintiff's applications. Accordingly, the court accepts and adopts the report and recommendation.
IT IS THEREFORE ORDERED that the plaintiff's objections (Dk. 16) to the report and recommendation of Magistrate Judge O'Hara are overruled, the report and recommendation (Dk. 15) is accepted and adopted, and the Commissioner's decision is affirmed.