Opinion
IP 01-332-C-T/F
March 27, 2002
ENTRY ON JUDICIAL REVIEW
Plaintiff Oralia C. Martinez seeks judicial review of a final decision by the Commissioner of Social Security denying her application for disability insurance benefits under the Social Security Act. Acting for the Commissioner, Administrative Law Judge ("ALJ") Donald T. McDougall determined that Plaintiff had severe impairments consisting of osteoarthritis, history of low back fusion, and a history of carpal tunnel in her left hand. However, the ALJ found that Plaintiff retained the ability to perform jobs in the national economy. Thus, Mrs. Martinez was not disabled within the meaning of the Act. Mrs. Martinez now seeks this court's review of the ALJ's decision, arguing that the ALJ failed to give the appropriate weight to a treating doctor's medical opinion and erred by relying on the testimony of the vocational expert in response to an incomplete hypothetical question. As explained below, the ALJ's decision was supported by substantial evidence and is affirmed.
Background
Mrs. Martinez was born in 1949, and at the time of the ALJ's decision she was 48 years old. She completed the eleventh grade, but did not finish high school or obtain a GED. She worked for fifteen years as a quality operator on a production line. She stopped working in 1993 due to back pain, and claimed that she had become disabled on May 6, 1993. Her application for disability insurance benefits was denied initially and on reconsideration. Mrs. Martinez then asked for a hearing before an ALJ, which was held on June 2, 1997. The ALJ denied benefits, and the Appeals Council denied further review, making the ALJ's decision the final decision of the Commissioner.
Disability and the Standard of Review
Mrs. Martinez seeks benefits under the Social Security Act's disability insurance program. To be eligible for disability insurance benefits, a person must be both disabled and insured. 42 U.S.C. § 423(a)(1). The Act defines "disability" as an inability to engage in substantial gainful activity by reason of a medically determinable impairment that can be expected to cause death or to last for twelve continuous months. See 42 U.S.C. § 423(d)(1)(A). Mrs. Martinez was disabled if her impairments were of such severity that she was unable to perform work that she previously had done, and if, based on her age, education, and work experience, she could not engage in any other kind of substantial work existing in the national economy. 42 U.S.C. § 423(d)(2)(A).
This standard is a stringent one. The Act does not contemplate degrees of disability or allow for an award based on partial disability. Stephens v. Heckler, 766 F.2d 284, 285 (7th Cir. 1985). It must be clear that the claimant has an impairment severe enough to prevent her from performing virtually any kind of work.
The ALJ's decision followed the familiar five-step sequential analysis set forth in the regulations to determine whether Mrs. Martinez was disabled under the Social Security Act. The steps are as follows:
(1) Is the claimant engaging in substantial gainful activity? If so, he or she is not disabled.
(2) If not, does the claimant have an impairment or combination of impairments that are severe? If not, he or she is not disabled.
(3) If so, does the impairment(s) meet or equal a listed impairment in the appendix to the regulations? If so, the claimant is disabled.
(4) If not, can the claimant do his or her past relevant work? If so, he or she is not disabled.
(5) If not, can the claimant perform other work given his or her residual functional capacity, age, education, and experience? If so, then he or she is not disabled. If not, he or she is disabled.
See generally 20 C.F.R. § 404.1520. When applying this test, the burden of proof is on the claimant for the first four steps and on the Commissioner for the fifth step. Young v. Secretary of Health Human Services, 957 F.2d 386, 389 (7th Cir. 1992).
At step one, the ALJ determined that Mrs. Martinez had not engaged in substantial gainful activity since the alleged onset of disability on May 6, 1993. At step two, the ALJ found that Mrs. Martinez had "severe" impairments consisting of osteoarthritis, history of low back fusion, and a history of carpal tunnel in her left hand. She also had a non-severe impairment consisting of mild depression. At step three, the ALJ found that Mrs. Martinez's impairments did not equal a listed impairment in the appendix to the regulations that leads to an automatic finding of disability. At step four, the ALJ determined that Mrs. Martinez was not capable of performing her past relevant work. At step five, the ALJ found that Mrs. Martinez could perform a significant number of light work and sedentary jobs that exist in the national economy including assembler, machine operator, and cashier. The ALJ concluded that Mrs. Martinez was not disabled and therefore was not entitled to disability insurance benefits.
The Social Security Act provides for judicial review of the Commissioner's denial of benefits. 42 U.S.C. § 405(g). Because the Appeals Council denied further review of the ALJ's findings, the ALJ's findings are treated as the findings of the Commissioner. Henderson v. Apfel, 179 F.3d 507, 512 (7th Cir. 1999); Luna v. Shalala, 22 F.3d 687, 689 (7th Cir. 1994). If the Commissioner's findings of fact are supported by substantial evidence, the findings must be upheld by a reviewing court. 42 U.S.C. § 405(g); Maggard v. Apfel, 167 F.3d 376, 379 (7th Cir. 1999).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971). To determine whether substantial evidence exists, the court reviews the record as a whole — the evidence that favors the claimant as well as the evidence that supports the Commissioner's conclusion. Nelson v. Apfel, 131 F.3d 1228, 1237 (7th Cir. 1997). However, the court does not attempt to substitute its judgment for the ALJ's by reweighing the evidence, resolving material conflicts, or reconsidering facts and/or the credibility of witnesses. Luna, 22 F.3d at 689. "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is entitled to benefits," the court must defer to the Commissioner's resolution of that conflict. Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997). Nevertheless, a reversal and remand may be required if the ALJ committed an error of law, Nelson, 131 F.3d at 1234, or if the ALJ based the decision on serious factual mistakes or omissions. Sarchet v. Chater, 78 F.3d 305, 309 (7th Cir. 1996).
Discussion
Mrs. Martinez asks this court to review the ALJ's decision for substantial evidence and legal error. Specifically, Mrs. Martinez presents two arguments. First, she argues that the ALJ failed to give the medical opinion of treating physician Robert S. Flint, M.D., appropriate weight. Second, Mrs. Martinez argues that the ALJ erred by relying upon the vocational expert's response to an incomplete hypothetical question. The court finds that the ALJ neither committed any legal error nor failed to support his decision with substantial evidence, and therefore affirms the denial of benefits.
First, Mrs. Martinez argues that the ALJ failed to give the medical opinion of treating physician Dr. Flint appropriate weight in determining her residual functional capacity. Mrs. Martinez argues that Dr. Flint's medical opinion should have been given controlling weight or at least significant weight. In evaluating medical opinions the ALJ must consider the extent of the treatment relationship. The regulations provide:
The residual functional capacity is a measure of what an individual can do despite the limitations imposed by her impairments. 20 C.F.R. § 404.1545(a).
(1) Treatment relationship. Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence. . . . If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.20 C.F.R. § 404.1527(d)(2).
Furthermore, the regulations provide that certain types of opinions are "reserved to the Commissioner because they are administrative findings that are dispositive of a case." 20 C.F.R. § 404.1527(e). Whether the claimant is disabled is a decision reserved to the Commissioner. Disability is a legal term of art which depends on whether a claimant meets the statutory definition. "A statement by a medical source that you are "disabled" or "unable to work" does not mean that [the Commissioner] will determine that you are disabled." 20 C.F.R. § 404.1527(e)(1). However, the Commission will "review all of the medical findings and other evidence that support a medical source's statement that you are disabled." Id.
Dr. Flint, a specialist in Neurology, treated Mrs. Martinez from October 9, 1995, to December 17, 1996. Dr. Flint thought Mrs. Martinez could work and provided work restrictions during his treatment relationship, until October 15, 1996, when he concluded that she was totally disabled. As previously discussed, Dr. Flint's opinion that Mrs. Martinez was totally disabled is not binding on the Commissioner. However, the ALJ examined the medical findings and other evidence upon which Dr. Flint based his conclusion.
The ALJ disagreed with Dr. Flint's opinion that Mrs. Martinez was disabled. First, the ALJ found that Dr. Flint's medical opinions on the nature and severity of Mrs. Martinez's impairments were not consistent with other substantial evidence. Thus, the ALJ concluded that Dr. Flint's medical opinion should not be given controlling weight. The court agrees.
John Shay, M.D., was Mrs. Martinez's treating surgeon. He treated her back pain from August 11, 1994, till at least July 27, 1995. (R. 251-60.) Dr. Shay performed a fusion procedure in October 1994 at the L5-S1 level. In June 1995, Mrs. Martinez had the hardware, which was used to obtain a solid fusion, removed. Dr. Shay examined her on July 27, 1995, and found a solid fusion. (R. 253.) He also noted a mild improvement in her low back symptoms, and recommended that she be "allowed to return to work." (R. 253.) However, Dr. Shay noted: "[Mrs. Martinez] will, . . . be better off in a job that does not require her to do an excessive amount of physical activity which may aggravate her lower back pain." (R. 253.)
Dr. Shay's assessed residual functional capacity is consistent with the state agency physicians who reviewed the record in April and July 1994 (R. 125-36) and again in September 1996 (R. 203-21). The state agency physicians also assessed a residual functional capacity that would allow Mrs. Martinez to work. The residual functional capacity assessment found that Mrs. Martinez could lift and carry up to twenty pounds occasionally and ten pounds frequently, without further limitation in the use of her upper and lower extremities for pushing and pulling; stand and/or walk about six hours in an eight-hour workday and sit for about the same amount of time; and occasionally climb, balance, stoop, kneel, crouch, and crawl. (R. 203-221.) Dr. Flint's assessment of Mrs. Martinez's physical capabilities is much lower. The opinions of Dr. Shay and the state agency physicians are substantial evidence that is inconsistent with Dr. Flint's opinion. The ALJ also found that Mrs. Martinez's daily living activities appear consistent with some limited work. (R. 228.) Thus, the ALJ did not err in failing to give Dr. Flint's opinion controlling weight.
The ALJ further discounted Dr. Flint's medical opinion. On September 16, 1996, Dr. Flint opined that Mrs. Martinez could work and gave her work restrictions. (R. 282.) The work restrictions provided: "no bending, stooping, twisting, no lifting more that 7.5 pounds, and no standing or sitting more that 20 minutes at a time." (R. 282, 370-83.) One month later on October 15, 1996, Dr. Flint indicated that Mrs. Martinez was now totally disabled. (R. 280.) The ALJ found inconsistency with the fact the Dr. Flint gave Mrs. Martinez work restrictions in September 1996, but said she was disabled in October 1996, without evidence of a significant change over the month. Dr. Flint also failed to provide a rationale and/or clinical findings to explain or support his opinion of total disability or the change in his opinion. (R. 39 n. 3.) Thus, the ALJ did not err in discounting Dr. Flint's medical opinion.
Furthermore, an ALJ must be aware of the potential bias a treating physician may have in favor of the claimant. This is especially true when the treating physician provides a residual functional capacity much lower than the consulting physicians. See Butera v. Apfel, 173 F.3d 1049, 1056 (7th Cir. 1999). The Seventh Circuit provided:
This Court has repeatedly stressed that "[a] claimant's treating physician may be biased in favor of the claimant; bias that a consulting physician may not share. . . ." Micus v. Bowen, 979 F.2d 602, 607 (7th Cir. 1992). "The patient's regular physician may want to do a favor for a friend and client, and so the treating physician may too quickly find disability. The regular physician also may lack an appreciation of how one case compares with other related cases. A consulting physician may bring both impartiality and expertise." Stephens v. Heckler, 766 F.2d 284, 289 (7th Cir. 1985).
Butera, 173 F.3d at 1056. Thus, the ALJ did not err in failing to accord Dr. Flint's opinion controlling or significant weight.
After the ALJ assessed Mrs. Martinez's residual functional capacity and determined that she is unable to return to her previous employment, the burden shifted to the Commissioner to establish that Mrs. Martinez can perform substantial gainful work that exists in the national economy. The ALJ concluded that Mrs. Martinez could perform a significant number of light work and sedentary jobs. The ALJ reached this conclusion by relying on the vocational expert's testimony in response to hypothetical questions which set forth all of the impairments and limitations credited by the ALJ.
In the Seventh Circuit, "[t]he hypothetical questions posed by the ALJ to the [vocational expert] must fully set forth the claimant's impairments to the extent that they are supported by the medical evidence in the record." Herron v. Shalala, 19 F.3d 329, 337 (7th Cir. 1994). If the ALJ found that alleged impairments were not supported by evidence in the record, then the alleged impairments need not be included in the hypothetical questions. Ehrhart v. Secretary of Health Human Servs., 969 F.2d 534, 540 (7th Cir. 1992).
During the hearing the ALJ and the vocational expert, Ms. Stephanie R. Archer, had the following exchange:
ALJ: Okay. If we have a hypothetical question of a person of the same age, education and work experience as the claimant, but if the person is limited to light work as that's defined in the Regulations, and the person would have to . . . be able to sit briefly about every half-hour to forty-five minutes. And by briefly, I mean very briefly, about a minute or two. . . . [T]he jobs should involve no more than the minimal climbing, balancing, and by climbing I mean climbing stairs or ramps. No climbing ladders, ropes or scaffolds and no more than minimal stairs or ramps. No more than minimal balancing, stooping, kneeling, crouching or crawling. Would there be any jobs such a person could do?
VE: Yes, sir. There would be. There are some light assembly jobs and at the light level they number about 3,000. There are also some machine operator jobs at the light level that allow the worker to sit. Those number about 200.
ALJ: Okay. Anything at the sedentary level where a person would be able to stand briefly every half-hour?
VE: Yes. Those would include assembler, about 4,000 and cashiers about 3,000, and machine operators about 1,500.
(R. 88.)
Mrs. Martinez argues that the hypothetical question that the ALJ asked was incomplete because it did not indicate that her work pace is slow. (Pl.'s Br. at 12-13.) She refers the court to the consultative examiner's evaluation on August 9, 1996, where he indicated that Mrs. Martinez's work pace is slow. (R. 227.) Ms. Archer testified that if a "slow work pace" is below average, then an individual who worked at that pace would not be able to maintain employment. (R. 90.)
The vocational expert testified that she assumed that a slow pace meant "significant less than average [pace]." (R. 92.) There is no indication that the ALJ interpreted the consultative examiner's statement that Mrs. Martinez has a slow work pace in the same manner. Interpreting a slow work pace to be significantly slower than an average work pace also leads to an internal inconsistency since the consultative examiner concluded that Mrs. Martinez "could handle simple, repetitive work-like tasks." (R. 227.) Such an interpretation of slow is also inconsistent with the residual functional capacity assessments of Dr. Shay and the state agency physicians.
Even if the ALJ should have indicated that Mrs. Martinez's work pace would be slow in the hypothetical question, her attorney asked the vocational expert about Mrs. Martinez's ability to work if her work pace was slow. (R. 90.) Thus, the information was in the record for the ALJ to consider, and the ALJ could rely on the vocational expert's conclusion. Therefore, the responses of the vocational expert provide a reliable assessment of the jobs Mrs. Martinez can perform given her residual functional capacity.
The ALJ properly discounted Dr. Flint's medical opinion and asked the vocational expert complete hypothetical questions. There also is substantial evidence to support the Commissioner's decision to deny disability insurance benefits.
Conclusion
For the foregoing reasons, the court affirms the Commissioner's denial of Mrs. Martinez's application for disability insurance. Accordingly, final judgment will be entered.