Opinion
Case No. 02-4178-JAR.
June 3, 2004
MEMORANDUM ORDER
Plaintiff James R. McHenry brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of Defendant Commissioner of Social Security's denial of his application for a period of disability and disability insurance benefits under Title II of the Social Security Act (Act) and supplemental security income under Title XVI of the Act. According to plaintiff, defendant failed to properly assess plaintiff's credibility, failed to accord adequate weight to the physicians' opinions, and failed to adequately support its decision that plaintiff's limitations did not meet the criteria of an impairment listed in Appendix 1, Subpart P of 20 C.F.R. Part 404 (listing of impairments). As explained in more detail below, the Court rejects each of plaintiff's arguments and affirms defendant's decision.
I. Procedural Background
On April 1, 2000, plaintiff filed his applications for a period of disability, disability insurance benefits, and supplemental security income. Plaintiff is insured for disability benefits through March 31, 2001, so he must establish disability on or prior to that date in order to be entitled to Title II benefits. On plaintiff's application he claimed disability since November 25, 1999, due to problems with his lower back and hips, disk herniation, bipolar disorder, and blurred vision. The application was denied both initially and upon reconsideration. At plaintiff's request, an administrative law judge (ALJ) held a hearing on May 1, 2002, at which both plaintiff and his counsel were present. On June 11, 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; his request for review was denied on September 13, 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. III 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 he is, disability benefits are denied. If he 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. § 404.1520, 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 his medically determinable impairment or combination of impairments significantly limits his ability to do basic work activities. If the claimant is unable to show that his impairments would have more than a minimal effect on his ability to do basic work activities, he 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 satisfied the severity requirement based on the following impairments: depression, alcohol dependence, and a back disorder. Thus, the ALJ proceeded to step three.
Id. (quoting Bowen v. Yuckert, 107 S.Ct. 2287, 2291 (1987)).
Id. (citing 20 C.F.R. § 404.1520(c), 416.920(c) (1986)).
Id. at 750-51 (citing 20 C.F.R. § 404.1521(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 his previous work, he is not disabled. With respect to the third step of the process in this case, the ALJ determined that plaintiff's impairments met listing 12.09 for alcoholism. This requires the ALJ to determine whether plaintiff's alcoholism is a contributing factor to his impairment. The ALJ determined that plaintiff's alcoholism was a contributing factor, and therefore his impairments were not listed or medically equivalent to those listed in the relevant regulations absent his alcoholism. 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, 107 S.Ct. at 2291).
Id.
Id. (citing 20 C.F.R. § 404.1520(e), 416.920(e) (1986); Bowen v. Yuckert, 107 S.Ct. at 2291).
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 his 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, despite possessing certain non-exertional limitations, nonetheless could perform a significant number of jobs in the state and national economies, including surveillance systems monitor, administrative support person, and optical goods assembler.
See Williams, 844 F.2d at 750.
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
In his motion, plaintiff contends that the ALJ made three errors in reaching his decision: defendant failed in finding plaintiff's testimony not credible, failed to accord adequate weight to the opinions of the physicians, and failed to state substantial evidence for his decision that plaintiff's impairments were not listed or medically equivalent to those listed in the relevant regulations. The Court addresses each of these arguments in turn.
A. Assessment of Plaintiff's Credibility
Plaintiff contends that in determining his RFC, the ALJ improperly assessed the credibility of his complaints. When assessing credibility, the ALJ must consider the three prong test set out in Luna v. Bowen. The ALJ properly determined the first two prongs: plaintiff has an impairment, and there is a loose nexus between the alleged symptoms and the impairment. The third prong of the Luna test asks whether the symptoms are in fact disabling, considering all the evidence presented, including medical data, objective indications of the degree of symptoms, and subjective accounts of severity of symptoms by the claimant. In addition to objective medical evidence, at this third step the ALJ is to consider:
834 F.2d 161 (10th Cir. 1987).
Id. at 164.
Id. at 163.
1. [t]he individual's daily activities; 2. [t]he location, duration, frequency, and intensity of the individual's pain or other symptoms; 3. [f]actors that precipitate and aggravate the symptoms; 4. [t]he type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5. [t]reatment, other than medication, the individual receives or has received for relief of pain or other symptoms; 6. [a]ny 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. [a]ny other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
Soc. Sec. Rul. 96-7p, 1996 WL 374186 at *3.
The ALJ may also consider such factors as a claimant's persistent attempts to find relief and willingness to try any treatment prescribed, regular contact with a doctor, and subjective measures of credibility that are peculiarly within the judgment of the ALJ. Moreover, the ALJ must give specific reasons why he rejects a claimant's subjective complaints. Ultimately, credibility determinations "are peculiarly the province of the finder of fact," and should not be upset if supported by substantial evidence.
Luna, 834 F.2d at 165-66; Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988).
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).
A review of the ALJ's decision in this case reveals that he complied with Luna in assessing plaintiff's credibility. The ALJ's assessment was based on several specific factors including the medical evidence and plaintiff's daily activities, conservative treatment, lack of side effects from medications, and unstable work history. Plaintiff has not shown how this assessment was in error.
A claimant's daily activities may be considered in determining whether he is able to engage in substantial gainful employment. The ALJ noted as part of his credibility analysis that the fact that plaintiff can do some household chores and vacuum shows he is able to do physical activity consistent with at least some sedentary work. Plaintiff testified that he only does household chores occasionally and has to lay down the entire next day when he does chores. The ALJ made note of this testimony, but thought that his activities still weighed against plaintiff's allegation of total disability. It was not an error for the ALJ to rely on plaintiff's activities of daily living as part of his credibility determination.
Talbot v. Heckler, 814 F.2d 1456, 1462 (10th Cir. 1987).
Plaintiff further asserts that the ALJ erred in relying on the fact that plaintiff had never had surgery on his back to relieve the pain. Plaintiff argues that the ALJ should have complied with the Tenth Circuit's four part test in Frey v. Bowen for determining when a plaintiff can be found not disabled for failing to follow a prescribed treatment. This test requires among other things, that the ALJ determine whether the treatment at issue would restore plaintiff's ability to work. However, the Tenth Circuit has held that this test is not required in a situation such as this, when the treatment has not been prescribed and the ALJ is simply considering "what attempts plaintiff made to relieve his pain . . . in an effort to evaluate the veracity of plaintiff's contention that his pain was so severe as to be disabling." Therefore the ALJ did not err in considering this particular factor.
816 F.2d 508, 517 (10th Cir. 1987).
Id.
Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000) (citing Hargis v. Sullivan, 945 F.2d 1482, 1489 (10th Cir. 1991); Luna v. Bowen, 834 F.2d 161, 165-66 (10th Cir. 1987)).
Plaintiff also argues that he was told surgery would worsen his condition, but he is unable to produce any record that he was told this. Dr. Kirschman decided that plaintiff would not benefit from surgery because his neurological problems were not severe. The fact that Dr. Kirschman did not believe plaintiff to be a candidate for surgery strengthens the ALJ's argument that plaintiff's impairment was not as severe as alleged. Furthermore, the ALJ recognized the treatment plaintiff had received, but found it to be conservative in comparison to the amount of pain in which plaintiff claimed to be.
The ALJ noted that plaintiff claimed he experienced almost constant drowsiness from his medications, but the ALJ discredited this claimed side effect because there was no evidence in the record to support it. And finally, the ALJ discredited plaintiff because of his "somewhat unstable work history with fluctuating earnings and significant breaks in employment, suggesting that he may not be highly motivated for work." Plaintiff argues that "common courtesy" required the ALJ to at least ask plaintiff about his sporadic work history, but cites nothing that requires the ALJ to do so. Plaintiff also argues that he had significant earnings in 1990 and 1997, but the ALJ believed that plaintiff's sporadic and fluctuating work history was evidence of his lack of motivation to work, not his low earnings. The ALJ may use the fact that plaintiff had periods of unemployment before his alleged onset date as one of the factors bearing on plaintiff's credibility. The ALJ properly considered plaintiff's minimal work history and his lack of side effects as factors in his credibility determination.
Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995).
See id. (citing Soc. Sec. Reg. 88-13); Soc. Sec. Rul. 96-7p, 1996 WL 374186 at *3.
In short, the ALJ considered the entire record, set forth the specific evidence he relied upon, applied the correct legal standards in evaluating plaintiff's testimony, and based his determination on substantial evidence in the record as required. Because credibility determinations are ultimately left to the ALJ when he supports it with substantial evidence, the Court finds that the ALJ's decision regarding plaintiff's credibility is not erroneous. B. Physicians' Opinions
Plaintiff further argues that the ALJ erred in the weight he gave to the opinions of the physicians and psychologist. There are three opinions in issue; none are from treating doctors. Dr. Verstraete examined plaintiff on October 21, 2000, and recorded his findings regarding plaintiff's physical complaints. Dr. Mintz, a psychologist, examined plaintiff on October 17, 2000, and made an account of his findings regarding plaintiff's mental impairment. Finally, Dr. Chance did not examine plaintiff, but gave expert testimony at the hearing before the ALJ, based on his review of plaintiff's medical records. Plaintiff complains that the ALJ did not consider all of the doctors' opinions and gave too much weight to the opinions in light of the rest of the record, specifically the records from the VA hospital.
The ALJ must give the most weight to treating physicians' opinions; opinions of physicians who have examined the claimant are given less weight; and opinions of physicians who merely review the claimant's records are to be given the least amount of weight. In addition, the ALJ must consider specific factors when deciding the weight to give any physician's opinion, including the length of the treatment relationship, the frequency of examination, and the extent to which the opinion is supported by objective medical evidence.
Talbot v. Heckler, 814 F.2d 1456, 1463 (10th Cir. 1987).
Goatcher v. U.S. Dept. of Health Human Servs., 52 F.3d 288, 290 (10th Cir. 1995).
There are no opinions in the record from any treating physicians, but plaintiff argues that the ALJ did not state sufficient evidence why the doctors' opinions were given more weight than the records from the VA hospital. It is apparent from the ALJ's opinion that he considered the records from the VA hospital, and there is nothing that says the records from a hospital should be given more weight than any physicians' opinion. If anything, they should be considered together, on the whole, and it appears they were.
In his decision, the ALJ remarked that Dr. Verstraete found limited range of motion in plaintiff's low back with pain and muscle spasm; however, motor function was normal and reflexes and sensation were intact. He also found plaintiff had mild difficulty with orthopedic maneuvers. It is correct, as plaintiff argues, that Dr. Verstraete did not give an opinion of plaintiff's ability to do work related activities, but merely stated his observations of plaintiff upon examination. Therefore, the ALJ was not relying on Dr. Verstraete's letter as a medical opinion, but rather as objective medical evidence. And because this was not the only objective medical evidence the ALJ relied on, there was no error in the weight he gave this evidence.
The ALJ also relied on Dr. Mintz's evaluation, including his finding that upon evaluation plaintiff appeared depressed and anxious and his speech was somewhat pressured. Plaintiff argues that the ALJ gave no reasons why Dr. Mintz's opinion should be disregarded, but the ALJ did not disregard it. He used Dr. Mintz's opinion as evidence that plaintiff did suffer from depression during periods of intoxication. In fact, plaintiff admitted during Dr. Mintz's examination that he drank half a bottle of whisky that day before the exam.
Finally, the ALJ asked Dr. Chance to testify as a medical expert at the hearing about whether plaintiff's impairments met or equaled a listed impairment. It is proper for an ALJ to use expert testimony in this capacity. The ALJ stated that he considered Dr. Chance's opinion and the opinion in a November 7, 2000, Psychiatric Review Technique Form when making his ultimate decision about plaintiff's mental impairments; therefore, there was no error in the ALJ's reliance on this testimony as part of his decision.
20 C.F.R. § 404.1527(f)(2)(iii), 416.927(f)(2)(iii).
The Court finds that the ALJ in this case set forth specific and legitimate reasons for the evidence he considered regarding the opinions and findings of the consultative and examining doctors. Because the opinions were sufficiently explained, consistent with the record, and supported by evidence, the ALJ did not err in using them in his opinion. Moreover, plaintiff sufficiently considered the other medical evidence in the record, including evidence from the VA hospital records, in addition to these doctors' findings.
C. The Listing of Impairments
Plaintiff's final argument is that the ALJ erred in his evaluation of whether plaintiff's impairments are equivalent to a listed impairment. The ALJ determined that plaintiff met listing 12.09 for substance addiction disorder. When a claimant is found to meet listing 12.09, the ALJ must follow the process prescribed in 20 C.F.R. § 404.1535 and 416.935. This requires a determination of whether the claimant's addiction disorder is a contributing factor to his or her disability. The key factor in this determination is whether the claimant would still be found disabled if he or she stopped using drugs or alcohol. The ALJ in this case found that plaintiff's impairments were not of listing severity when considered apart from plaintiff's alcoholism.
Appendix 1, Subpart P of 20 C.F.R. Part 404.
20 C.F.R. § 404.1535, 416.935.
20 C.F.R. § 404.1535(b)(1); 416.935(b)(1).
Plaintiff first argues that the ALJ erred by making a blanket statement that plaintiff's impairments did not meet a listing. The Tenth Circuit has held that "[u]nder [ 42 U.S.C. § 405(b)(1)], the ALJ was required to discuss the evidence and explain why he found that appellant was not disabled at step three." The ALJ stated that plaintiff's impairments did not meet a listing because there were no examination results, laboratory data, clinical studies, medical signs or findings, or other persuasive evidence that any of plaintiff's non alcohol-related impairments met or equaled any of the listed impairments. Also, the ALJ stated his findings regarding the "Part B" criteria from a Psychiatric Review Technique Form, which is used to determine whether mental impairments meet the listing, and none of his findings would have made plaintiff's impairment equivalent to a listed impairment. The ALJ stated sufficient evidence in his opinion as a whole to determine that plaintiff's impairments did not meet or equal any in the listing of impairments.
Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996) (citing Cook v. Heckler, 783 F.2d 1168, 1172-73 (4th Cir. 1986); see also Brown v. Bowen, 794 F.2d 703, 708 (D.C. Cir. 1986) (relying upon 20 C.F.R. § 404.953 and 5 U.S.C. § 557(c)[(3)(A)] to hold that an ALJ must explain his adverse decisions)).
Plaintiff further argues that the ALJ did not make a proper finding when he determined that plaintiff's impairment did not equal a listed impairment absent his alcoholism. He argues that the ALJ improperly relied only on Dr. Chance's opinion for this decision. However, the ALJ also relied on the Psychiatric Review Technique Form filled out by a State agency physician, and he properly discussed his reason for this finding, including the fact that the records show plaintiff had increased symptoms during periods of intoxication. Plaintiff argues that there is substantial evidence in the record that plaintiff's depression increased after he stopped drinking alcohol, but the evidence plaintiff cites is not substantial evidence outweighing the ALJ's findings.
Because the ALJ made proper findings regarding plaintiff's credibility and the weight to give to the doctors' findings and the medical evidence, and properly considered whether plaintiff's alcoholism was a contributing factor to his impairments, his RFC determination was sufficiently supported by substantial evidence. Therefore, the hypothetical questions to the Vocational Expert (VE) contained all of plaintiff's limitations, and because the VE responded that plaintiff could perform other jobs in the national economy, it was proper for the ALJ to determine that plaintiff was not disabled.
In sum, having carefully reviewed the record in this case and having considered plaintiff's arguments in light of the record, the Court concludes that substantial evidence supports defendant's decision to deny plaintiff's application for disability benefits and that no deviation from established legal standards occurred.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff's motion for judgment is denied and defendant's decision denying plaintiff disability benefits is affirmed.