Opinion
Case No. 97-4114-JAR
April 10, 2003
RECOMMENDATION AND REPORT
This is an action reviewing the final decision of the Commissioner of Social Security denying the plaintiff disability insurance benefits and supplemental security income payments. The matter has been fully briefed by the parties and has been referred to this court for a recommendation and report.
The court's standard of review is set forth in 42 U.S.C. § 405 (g), which provides that "the findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." The court should review the Commissioner's decision to determine only whether the decision was supported by substantial evidence and whether the Commissioner applied the correct legal standards. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994). Substantial evidence requires more than a scintilla, but less than a preponderance, and is satisfied by such evidence that a reasonable mind might accept to support the conclusion. The determination of whether substantial evidence supports the Commissioner's decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it really constitutes mere conclusion. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). Although the court is not to reweigh the evidence, the findings of the Commissioner will not be mechanically accepted. Nor will the findings be affirmed by isolating facts and labeling them substantial evidence, as the court must scrutinize the entire record in determining whether the Commissioner's conclusions are rational. Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan. 1992). The court should examine the record as a whole, including whatever in the record fairly detracts from the weight of the Commissioner's decision and, on that basis, determine if the substantiality of the evidence test has been met. Glenn, 21 F.3d at 984.
The Social Security Act provides that an individual shall be determined to be under a disability only if the claimant can establish that they have a physical or mental impairment expected to result in death or last for a continuous period of twelve months which prevents the claimant from engaging in substantial gainful activity. The claimant's physical or mental impairment or impairments must be of such severity that they are not only unable to perform their previous work but cannot, considering their age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d). The claimant has the burden of proving a disability that prevents him or her from engaging in their prior work activity. Once the claimant has established such a disability, the burden shifts to the Commissioner to show that the claimant retains the ability to do other work activity and that jobs the claimant could perform exist in the national economy. The Commissioner meets this burden if the decision is supported by substantial evidence. Ray v. Bowen, 865 F.2d at 224.
The Commissioner has established a five-part sequential evaluation process for determining disability. Thompson v. Sullivan, 987 F.2d 1482, 1486 (10th Cir. 1993); Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988). If at any step in the process the Commissioner determines that the claimant is disabled or is not disabled, the evaluation ends. Thompson v. Sullivan, 987 F.2d at 1486.
Step one determines whether the claimant is presently engaged in substantial gainful activity. If he or she is not, the decision maker proceeds to step two, determining whether the claimant has a medically severe impairment or combination of impairments which significantly limit the claimant's ability to work. If the claimant is able to make such a showing, the decision maker proceeds to step three, whether the impairment meets or equals one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. If the claimant's impairment does not satisfy this step, then the decision maker proceeds to step four, where the claimant must show that the impairment prevents the claimant from performing work he has performed in the past. Williams, 844 F.2d at 750-51.
At step five, the burden shifts to the Commissioner to show that the claimant retains the residual functional capacity (RFC) to do other work that exists in the national economy. The Commissioner meets this burden if the decision is supported by substantial evidence. Thompson, 987 F.2d at 1487. A claimant is placed in one of five RFC categories depending on his capacity for work activity on a regular and continuing basis. Channel v. Heckler, 747 F.2d 577, 579 (10th Cir. 1984). Significantly, a claimant must be able to perform the full range of such work on a daily basis and must possess the physical capacities equal to the strength requirements for most of the jobs in that range in order to be placed in a particular RFC category.Id. At 579-80. A claimant is entitled to benefits if the Commissioner cannot establish that the claimant retains the capacity to perform alternative work activity and that this specific type of job exists in the national economy. Williams, 844 F.2d at 751.
On February 14, 1996, administrative law judge (ALJ) Francis Eyerman issued his decision in this case (R. at 192-198). Although the ALJ found that plaintiff could not perform past relevant work, the ALJ found that plaintiff could perform other jobs in the national economy (R. at 197-198). Plaintiff appealed his case to the U.S. District Court. On June 19, 1998, the court granted defendant's motion to remand the case because the Commissioner was unable to locate the claim file (R. at 209-210).
The remand was granted pursuant to sentence six of 42 U.S.C. § 405(g) (R. at 213-214).
Upon remand, a new decision was issued by ALJ Gary Lowe (R. at 9-34). His findings included the following:
1. Claimant . . . stated he became unable to work [on July 15, 1989].
2. The evidence does not show that claimant has engaged in substantial gainful activity since July 15, 1989.
3. From July 15, 1989, through June 3, 1993, claimant did not have an impairment or a combination of impairment[s] that was "severe."
4. The evidence establishes that claimant has had a combination of medically determinable impairments that has attained the minimal "severity" threshold since June 4, 1993. These impairments are summarized as: (a) Degenerative joint disease of the knees, mild to lower range of moderate, first observed on June 18, 1994; (b) carpal tunnel syndrome, mild, first diagnosed in October 1994, and some degenerative changes in metacarpophalangeal joints; (c) history of complaints of generalized arthralgias (i.e., aches and pains sometimes associated with slip/trip falls and otherwise described as rheumatism or osteoarthritis) affecting multiple locations (shoulders, back, wrist, knees, feet and hands), partially attributable to (a) and (b), and generally responsive to mild pain medications or infrequent corticosteroid injection; (d) GERD [gastroesophageal reflux disease], generally well controlled on Prilosec and with some attention to diet; (e) history of "heel spur syndrome with associated plantar fasciitis, left foot," treated in June to August 1993, with no further treatment since then; and (f) history of infrequent otitis externa, responsive to treatment with antibiotics, and not an individually "severe" impairment.
5. Claimant does not [meet or equal a listed impairment].
7. Claimant's residual functional capacity since June 4, 1993 has been for a limited range of "light" exertional work. He: Is not limited in sitting; has no limitation in level surface walking at his own pace, using a cane to the extent that he may find it to be necessary; is able to stand for up to an hour at a time, for six to eight hours of a work day; is able to lift and carry objects weighing up to 20 pounds, 10 to 12 times per hour, for a distance of 15 feet; has no limitation in bending; has no limitation on gripping and grasping within the parameters of light work; is able to use stairs to go once up and down in eight hours; has no medicinal side-effects; has no visual deficit; has no hearing problems; and has no unusual sleepiness or need to take naps during the day.
8. Claimant is unable to perform any occupations that qualify as past relevant work.
11. Considering further the vocational expert's testimony, there are jobs existing in significant numbers in the economy that claimant could have performed from June 4, 1993, through the date of this decision. Examples of such jobs are: Machine tender: packer operator: and parking lot cashier.
12. Claimant has not been under a "disability" from July 15, 1989, through the date of this decision.
(R. at 32-34).
I. Did the ALJ err by failing to give controlling weight to the opinion of plaintiff's treating physician?
A treating physician's opinion about the nature and severity of the claimant's impairments should be given controlling weight by the Commissioner if well supported by clinical and laboratory diagnostic techniques and if it is not inconsistent with other substantial evidence in the record. Castellano v. Secretary of Health Human Services, 26 F.3d 1027, 1029 (10th Cir. 1994); 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). A treating physician's opinion must be given substantial weight unless good cause is shown to disregard it. Goatcher v. United States Department of Health and Human Services, 52 F.3d 288, 289-290 (10th Cir. 1995). A treating physician's opinion is entitled to extra weight because he or she is usually more familiar with a claimant's medical condition than other physicians. Kemp v. Bowen, 816 F.2d 1469, 1476 (10th Cir. 1987). When 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, not the other way around. The ALJ must give specific, legitimate reasons for disregarding the treating physician's opinion that a claimant is disabled. The ALJ must consider the following specific factors to determine what weight to give any medical opinion: (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. Goatcher, 52 F.3d at 290. 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. Kemp, 816 F.2d at 1476. Finally, opinions of treating physicians are entitled to greater weight than that of a physician who examined the claimant once at the request of the agency, or a physician who based his or her opinion solely on the record evidence and plaintiff's testimony at a hearing. Washington v. Shalala, 37 F.3d 1437, 1440-1441 (10th Cir. 1994). An ALJ errs when he or she rejects opinions of treating physicians which are based on specific medical findings in the absence of conflicting evidence. Washington v. Shalala, 37 F.3d at 1441. On the other hand, the opinion of a treating physician might be rejected if it is brief, conclusory, and unsupported by medical evidence. Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987). Furthermore, a treating physician's opinion that a patient is disabled is not dispositive, because the disability determination rests ultimately with the Commissioner.Castellano, 26 F.3d at 1029.
However, in the determination of issues reserved to the Commissioner, such as opinions regarding: whether an impairment meets or equals a listing; plaintiff's RFC; whether a plaintiff can do past relevant work; how age, education, and work experience apply; and whether a plaintiff is disabled, treating source opinions will not be given any special significance or controlling weight. 20 C.F.R. § 404.1527(e) (2 3), 416.927(e) (2 3); Soc. Sec. Rul. 96-5p, 1996 WL 374183, at *2; Soc. Sec. Rul. 96-8p, 1996 WL 374184, at *8, n. 8. On the other hand, even on issues reserved to the Commissioner, the decision must explain the consideration given to treating source opinions. 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2); Soc. Sec. Rul. 96-5p, 1996 WL 374183, at *2-3; Soc. Sec. Rul. 96-8p, 1996 WL 374184, at *8, n. 8. Where the ALJ's RFC determination conflicts with a medical source opinion, the ALJ must explain why he did not adopt the medical source opinion. Soc. Sec. Rul. 96-8p, 1996 WL 374184, at *7.
Plaintiff alleges that the ALJ failed to give "controlling" weight to the opinion of Dr. Petersen, plaintiff's treating physician, that plaintiff is disabled. The record indicates that Dr. Petersen, in a letter dated March 1, 1996, stated that it is his opinion that Mr. Sosa has been totally disabled since December 1994, and has no significant chance of recovery. In the letter, Dr. Petersen indicates that he has been treating plaintiff since June, 1993. Dr. Petersen indicates that the plaintiff has had a lot of difficulty with multiple joint symptoms, degenerative arthritic disease, and "probable" carpal tunnel syndrome. However, plaintiff has had no rheumatologic markers of an inflammatory arthritis. Dr. Petersen opined that plaintiff has had a steady decline in his ability to function since October, 1994. He further noted that plaintiff has had multiple falls and does require a cane to ambulate safely (R. at 240). However, as noted above, although the case law and regulations state that a treating physician's opinion about the nature and severity of a claimant's impairments should be given controlling weight if well supported by clinical and laboratory diagnostic techniques and if not inconsistent with other substantial evidence in the record, on issues reserved to the Commissioner, including the question of whether a claimant is disabled, treating source opinions should be considered, but are not entitled to special significance or controlling weight. Therefore, the opinions of Dr. Petersen will be considered in light of the regulations and case law set forth above.
Plaintiff specifically complains that the finding of the ALJ that plaintiff's carpal tunnel syndrome was mild is not supported by the evidence in this case. The ALJ acknowledged plaintiff's testimony that he is greatly limited by carpal tunnel syndrome. However, in finding the condition to be mild, the ALJ considered it relevant that the plaintiff had not had carpal tunnel surgery, which he described as minor day surgery. The ALJ also noted that Dr. Cooley and Dr. Peterson did not agree on his need for the surgery. The court will therefore review the records of Dr. Cooley and Dr. Peterson on this point.
The ALJ decision cited to a progress note of Dr. Peterson dated November 21, 1994. In that note, it states that Dr. Peterson found moderate swelling of both wrists and a discussion with plaintiff of his "possible carpal tunnel syndrome." Plaintiff was given wrist splints for both wrists to be worn primarily at night in an attempt to prevent the need for surgical repair (R. at 182). Dr. Peterson had previously referred plaintiff to Dr. Cooley, a specialist in rheumatology (R. at 296). Dr. Cooley diagnosed plaintiff with carpal tunnel syndrome (R. at 299). On November 7, 1994, Dr. Cooley indicated in his records that "he may eventually need to undergo right carpal tunnel surgery" (R. at 298), and that he had told the plaintiff that he would be happy to set up an appointment with him to see a hand surgeon (R. at 297). The ALJ apparently relied on these records for his finding that the two physicians did not agree on his need for such surgery. However, the court does not find that these records support a finding that the two physicians did not agree on plaintiff's need for surgery.
To support his finding of only mild carpal tunnel syndrome, the ALJ also noted the testing on grip strength performed by Dr. Chamberlin, a consultative physician, in June 1994 (R. 222-224). Dr. Chamberlin's report indicates that the plaintiff described pain in both hands. Grip strength was measured at 40 pounds bilaterally (R. at 223). The ALJ also relied on a consultative physical therapy examination performed in January 1995 by Sam Gill, a physical therapist. Mr. Gill reported that plaintiff's hand intrinsics on manual muscle tests are approximately 3/5 and wrist flexion/extension is approximately 4 to 4-/5 on a manual muscle test. Active wrist ROM (range of motion) is 60 degrees of extension left and 50 degrees right. Passive ROM is 80 degrees of extension left and 75 degrees right. Active and passive flexion is 80 degrees bilaterally. Grip strength is 35 to 65 pounds with his right hand, and 29 to 59 pounds with his left hand. Mr. Gill stated that the linear progression of strength values for plaintiff's right hand may indicate a lack of full effort during grip strength testing (R. at 172-173).
The ALJ also noted that plaintiff complained of wrist pain in February 1996 after slipping on some ice, but there were no further complaints in 1996 or 1997. Plaintiff again complained of right hand pain in February 1998 after a fall, but did not complain of hand problems again in 1998. The ALJ noted that the complaints in 1996 and 1998 were related to trauma and not carpal tunnel syndrome per se. The ALJ noted that the 1998 complaint responded to Tylenol and moist heat, which he stated would not be the cure for a neurological problem. For these reasons, the ALJ found that the plaintiff was not fully credible as to the extent of his hand problems (R. at 23-24).
Dr. Peterson, in a questionnaire dated October 1, 1999, provided his opinion on plaintiff's impairments before December 31, 1994. Dr. Peterson indicated that plaintiff could not use his hands to grasp, turn, or twist objects, could not use his fingers for fine manipulation, and could not use his arms for reaching (R. at 288). However, on December 21, 1994, Ms. Cecilia Bamford spoke directly to Dr. Peterson. Her notes of that conversation were as follows:
Talked directly to Dr. Peterson who thought records had been sent. They will be shortly. He says that the red blood count is nothing to worry about. He does have arthralgias, carpal tunnel and painful knees but no specific grip strength or ROM done. His evidence is based more on subjective input. Dr. Peterson does not do SSA reports.
(R. at 303). The ALJ found that, given Dr. Peterson's contemporaneous admission in 1994 that his evidence was substantially based on what the plaintiff had told him, and that his office notes do not reflect specifically quantified information, the undersigned is unable to ascertain the objective basis for Dr. Peterson's 1999 conclusions as to plaintiff's functional limitations in 1994 (R. at 27). The ALJ also noted that Dr. Peterson's March 1, 1996 letter (expressing the opinion that plaintiff is disabled) indicates "probable carpal tunnel syndrome" (R. at 240, 27), which in the opinion of the ALJ indicates that this is only a mild condition (R. at 27).
At the hearing, Dr. Finley testified as a medical expert. Dr. Finley reviewed the file, but did not examine the plaintiff (R. at 80). Dr. Finley found no basis for a finding of carpal tunnel syndrome (R. at 93-94), and opined that plaintiff would have no restrictions on gripping and grasping with his hands (R. at 96). The ALJ, in his decision, acknowledged that Dr. Finley did not have the medical records which most strongly supported the diagnosis of carpal tunnel syndrome; nonetheless, the ALJ concluded that plaintiff's carpal tunnel was a fairly mild problem (R. at 30). Plaintiff's RFC, as determined by the ALJ, was that plaintiff had no limitation on gripping or grasping (R. at 106). Based on the RFC established by the ALJ, the vocational expert found that plaintiff could perform other jobs in the national economy.
At step five, the burden is on the agency to show that the claimant retains the RFC to perform work that exists in the national economy.Rutledge v. Apfel, 230 F.3d 1172, 1174 (10th Cir. 2000). In this case, the only medical evidence that expresses a clear opinion on plaintiff's RFC limitations as to his hands, fingers and arms due to carpal tunnel syndrome is the opinion of Dr. Peterson, his treating physician. The court finds that the ALJ has set forth valid reasons for discounting his opinions, including the fact that Dr. Peterson had previously acknowledged that his opinions were not based on specific grip strength or ROM, but relied more on subjective input. Furthermore, Dr. Peterson failed to provide any objective basis for his findings other than the diagnosis of carpal tunnel syndrome.
Dr. Finley, the medical expert who testified at the hearing, stated that plaintiff did not have carpal tunnel syndrome and had no restrictions on gripping and grasping. However, the ALJ conceded that Dr. Finley did not have the medical records that most strongly supported the diagnosis of carpal tunnel syndrome. The ALJ thus found that plaintiff had carpal tunnel syndrome based on the medical records not available to Dr. Finley, but nonetheless found that plaintiff had no limitations on gripping or grasping.
The ALJ does rely on the findings of Dr. Chamberlin and Sam Gill, a physical therapist, who set forth various findings, including grip strength and range of motion of plaintiff's hands and wrists. Whether their findings demonstrate that plaintiff does or does not have limitations in his hands and/or fingers would require a medical opinion. However, there is no medical opinion or evidence in the record stating that the findings of Dr. Chamberlin and Sam Gill demonstrate that plaintiff has no limitations with his hands and/or fingers. Dr. Finley found no restrictions in gripping and grasping based on the medical records that he had, but his finding is tainted by the fact that he was missing key medical evidence on this issue. Besides missing key evidence, Dr. Finley did not specifically comment on whether the findings of Dr. Chamberlin and Sam Gill would indicate that plaintiff had no limitations in gripping and grasping, or fine finger manipulation.
As noted above, the burden of proof that the claimant has the RFC to perform other work in the national economy is on the defendant. The court finds that there is no clear medical evidence that plaintiff has no limitations with his hands and/or fingers due to carpal tunnel syndrome. On the other hand, plaintiff's treating physician has opined that plaintiff has severe limitations with his hands, fingers and arms. Although the ALJ provided legitimate reasons for discounting this opinion, this does not relieve him of his duty to provide medical evidence that plaintiff has no such limitations. The absence of evidence is not evidence. It is the Commissioner's burden to prove that the plaintiff can perform work other than his past relevant work.Thompson v. Sullivan, 987 F.2d 1482, 1491 (10th Cir. 1993). Therefore, this case should be remanded for further hearing on this issue. The ALJ could again utilize a medical expert who is provided with all the relevant medical evidence in this case. The ALJ could also utilize a consultative examination that provides an opinion on whether plaintiff has limitations with his hands or fingers due to carpal tunnel syndrome.
Furthermore, in his decision, the ALJ stated that he was unable to ascertain the objective basis for Dr. Peterson's 1999 conclusions as to plaintiff's functional limitations (R. at 27). Under the governing regulations, the ALJ must recontact the treating physician when the information from the treating physician is inadequate to determine whether the claimant is disabled. It is the inadequacy of the evidence that the ALJ receives from the treating physician that triggers the duty. Thus, there is no need to recontact the treating physician if the ALJ determines that the information received was adequate. White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2002) (citing 20 C.F.R. § 404.1512(e); 416.912(e)). The regulation goes on to state that:
We will seek additional evidence or clarification from your medical source when the report from your medical source . . . does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques. We may do this by requesting copies of your medical source's records, a new report, or a more detailed report from your medical source . . . or by telephoning your medical source. In every instance where medical evidence is obtained over the telephone, the telephone report will be sent to the source for review, signature and return.20 C.F.R. § 404.1512(e)(1); 416.912(e)(1). The finding of the ALJ that he could not ascertain the objective basis for Dr. Peterson's 1999 opinions is similar to the regulatory language that Dr. Peterson's report does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques. Although the ALJ apparently had obtained the medical source's records, on remand, the ALJ should consider obtaining a more detailed report or telephoning the medical source in order to determine the bases for Dr. Peterson's opinions. As noted earlier, someone from the agency had contacted Dr. Peterson in 1994 and had recorded a summary of that phone call. However, that phone call was made before Dr. Peterson rendered his opinions in 1996 (R. at 240) or 1999 (R. at 284-289). Furthermore, that phone call did not comply with the regulatory requirement that medical evidence obtained over the phone will be sent to the source for review, signature and return.
As for the remainder of the ALJ's findings on plaintiff's RFC (R. at 30-31, 33), they are nearly identical to the RFC findings given by Dr. Finley (R. at 28). In fact, the testimony of Dr. Finley provides the only medical opinion that supports the RFC findings of the ALJ. However, the ALJ has conceded that Dr. Finley did not have all of the medical records, including Dr. Cooley's records from October 31, 1994-November 7, 1994, and Dr. Peterson's records from October 17, 1994-December 19, 1995 (R. at 30). As noted above, the failure to provide Dr. Finley with certain evidence impacted his diagnosis of carpal tunnel syndrome and the severity of that impairment. Furthermore, the records not provided to Dr. Finley included treatment records from Dr. Peterson which cover a 14 month period, and include discussion of a wide variety of plaintiff's impairments other than carpal tunnel syndrome (R. at 178-184). It is certainly possible that the failure to provide these documents may have impacted other opinions of Dr. Finley. The opinions of Dr. Finley are clearly tainted by an incomplete medical record and therefore cannot provide an adequate basis for making an RFC determination. Given the clear reliance by the ALJ on the opinions of Dr. Finley as to plaintiff's RFC, and the fact that certain medical records were not provided to Dr. Finley, the court holds that the findings of the ALJ concerning plaintiff's RFC are not supported by substantial competent evidence.
Plaintiff also contends that the ALJ erred by discrediting the diagnosis of degenerative joint disease. Plaintiff further contends that Dr. Finley disagreed with the diagnosis of heel spur (Doc. 31 at 25). The ALJ listed as severe impairments degenerative joint disease of the knees, generalized arthralgias and a history of heel spur syndrome. Thus, as to these impairments, the ALJ did not improperly discredit or discount these diagnoses. However, Dr. Peterson's medical notes indicate degenerative joint disease of the knees and back (R. at 178, Nov. 2, 1995), and degenerative joint disease, with joint pain primarily in the hips and knees (R. at 232, August 24, 1998). Although these diagnoses were mentioned by the ALJ in his opinion (R. at 14, 16), the ALJ failed to provide any explanation for finding degenerative joint disease of the knees as a severe impairment, but not finding degenerative joint disease of other joints, including the back and hips, as severe impairments. Such a summary conclusion prevents meaningful judicial review. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). On remand, the ALJ must set forth his specific findings on this issue, and his reasons for determining that some diagnoses constitute severe impairments, while others do not.
II. Did the ALJ err in his analysis of plaintiff's vision and its impact on his ability to work?
Plaintiff also alleges that the ALJ erred by discounting the medical evidence and plaintiff's testimony concerning his eyesight. The ALJ had found that there was no evidence of "other than optometrically correctable vision" (R. at 23). Plaintiff testified at the hearing that a doctor told him in February 1999 that he would be going blind (R. at 57). Plaintiff also refers to a one page medical record from a Dr. Singh which refers to plaintiff having a low tear in the meniscus in one eye and recommends that a graft be performed before it grew larger and onto pupillary axis (R. at 302). Plaintiff's brief goes on to state that this "apparently can lead to blindness" (Doc. 31 at 22), but fails to provide any evidence of this fact.
The burden of proof is on the plaintiff to establish a severe impairment at step two. See Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993) (the claimant bears the burden of proof through step four of the analysis). A claimant's showing at step two that he or she has a severe impairment has been described as "de minimis."Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997); see Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988) ("de minimis showing of medical severity"). A claimant need only be able to show at this level that the impairment would have more than a minimal effect on his or her ability to do basic work activities. Williams, 844 F.2d at 751. However, the claimant must show more than the mere presence of a condition or ailment. If the medical severity of a claimant's impairments is so slight that the impairments could not interfere with or have a serious impact on the claimant's ability to do basic work activities, the impairments do not prevent the claimant from engaging in substantial work activity. Thus, at step two, the ALJ looks at the claimant's impairment or combination of impairments only and determines the impact the impairment would have on his or her ability to work. Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997).
The determination at step two is based on medical factors alone. A claimant must provide medical evidence that he or she had an impairment and how severe it was during the time the claimant alleges they were disabled. 20 C.F.R. § 1512 (c). The evidence that a claimant has an impairment must come from acceptable medical sources including licensed physicians or psychologists. 20 C.F.R. § 1513(a). A claimant's statements regarding the severity of an impairment is not sufficient. Adame v. Apfel, 2000 WL 422341 at *3-4 (D. Kan. March 20, 2000);Flint v. Sullivan, 743 F. Supp. 777, 782 (D. Kan. 1990).
Although plaintiff has provided evidence that he has a low tear in the meniscus in one eye and that a graft is recommended before it grows larger and onto pupillary axis, plaintiff has presented no evidence concerning the significance of this condition or whether it had any impact on his ability to work at any time prior to the ALJ decision. Absent medical evidence that this condition had more than a minimal impact on plaintiff's ability to work during the time period in question, the court finds plaintiff's argument on this point to be without merit.
III. Did the ALJ err in his analysis of plaintiff's credibility, including his claims of pain?
The framework for the proper analysis of evidence of pain is that the Commissioner must consider (1) whether claimant established a pain-producing impairment by objective medical evidence; (2) if so, whether there is a "loose nexus" between the proven impairment and the claimant's subjective allegations of pain; and (3) if so, whether considering all the evidence, both objective and subjective, claimant's pain is in fact disabling. Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995); Thompson v. Sullivan, 987 F.2d 1482, 1488-89 (10th Cir. 1993); Luna v. Bowen, 834 F.2d 161, 163-65 (10th Cir. 1987). If an impairment is reasonably expected to produce some pain, allegations of disabling pain emanating from that impairment are sufficiently consistent to require consideration of all relevant evidence. For example, an impairment likely to produce some back pain may reasonably be expected to produce severe back pain in a particular claimant. Luna, 834 F.2d at 164. Symptoms can sometimes suggest a greater severity of impairment than is demonstrated by objective and medical findings alone. Direct medical evidence of the cause and effect relationship between the impairment and the degree of claimant's subjective complaints need not be produced. Luna, 834 F.2d at 165. The absence of an objective medical basis for the degree of severity of pain may affect the weight to be given to the claimant's subjective allegations of pain, but a lack of objective corroboration of the pain's severity cannot justify disregarding those allegations. When determining the credibility of pain testimony the ALJ should consider the levels of medication and their effectiveness, the extensiveness of the attempts (medical or nonmedical) to obtain relief, the frequency of medical contacts, the nature of daily activities, subjective measures of credibility that are peculiarly within the judgment of the ALJ, the motivation of and relationship between the claimant and other witnesses, and the consistency or compatibility of nonmedical testimony with objective medical evidence. Thompson, 987 F.2d at 1489.
A reviewing court does not weigh the evidence and may not substitute its discretion for that of the agency. Credibility determinations are peculiarly the province of the finder of fact, and a court will not upset such determinations when supported by substantial evidence. However, findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). Furthermore, the ALJ cannot ignore evidence favorable to the plaintiff.Owen v. Chater, 913 F. Supp. 1413, 1420 (D. Kan. 1995). As this court has stated on many occasions, the ALJ cannot impermissibly ignore the evidence as a whole while choosing instead to abstract selective pieces of evidence favorable to their position. See O'Connor v. Shalala, 873 F. Supp. 1482, 1491 (D. Kan. 1995);Jones v. Sullivan, 804 F. Supp. 1398, 1406 (D. Kan. 1992);Claassen v. Heckler, 600 F. Supp. 1507, 1511 (D. Kan. 1985).
When analyzing evidence of pain, the court does not require a formalistic factor-by-factor recitation of the evidence. So long as the ALJ sets forth the specific evidence he relies on in evaluating the claimant's credibility, the ALJ will be deemed to have satisfied the requirements set forth in Kepler. White, 287 F.3d at 909; Quails v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). Therefore, the court finds that the mere fact that the ALJ may not have conducted a formalistic factor-by-factor recitation of the evidence is not error so long as the ALJ has set forth the specific evidence he relied on in evaluating plaintiff's credibility.
The ALJ, in his opinion, provided a very thorough and comprehensive discussion of plaintiff credibility (R. at 22-28). The ALJ decision also contained a complete and thorough review of the medical evidence in this case (R. at 10-16). The ALJ carefully examined plaintiff's levels of medication and their effectiveness, the extensiveness of plaintiff's attempts to obtain relief, the frequency of medical contacts, the nature of daily activities, and the motivation of and the relationship between the plaintiff and the other witnesses, and the consistency or compatibility of nonmedical testimony with objective medical evidence. The ALJ set forth in detail the evidence he relied on in evaluating the plaintiff's credibility. The record must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to discuss every piece of evidence so long as the he/she discusses the uncontroverted evidence he chooses not to rely on, as well as significant probative evidence he/she rejects. Clifton v. Chater, 79 F.3d 1007, 1009-1010 (10th Cir. 1996). The court does not find any significant errors by the ALJ in his analysis of plaintiff's claims of pain and credibility. However, on remand, the ALJ should reexamine this issue once further evidence is received from either a medical expert who has examined all the medical evidence, a consultative physician, and/or has obtained further information from Dr. Peterson, for the reasons set forth above.
Specifically, plaintiff alleges that the ALJ erred in not considering the fact that plaintiff had no insurance when the ALJ noted that plaintiff had presented "irregularly" with complaints of knee problems (R. at 24). First, there is no evidence that the plaintiff was unable or had difficulty seeing a physician due to lack of insurance. Second, in his decision, the ALJ not only noted the long periods of time between physician visits by the plaintiff, but he also noted that during some of his visits to the physician, plaintiff never mentioned any problems with his knees. Therefore, the court finds no error by the ALJ on this point.
The only basis for plaintiff's claim that he lacked insurance was a reference to one document that states "self pay" in 1992 (R. at 160).
At another point in his brief, the plaintiff noted the reference to "self pay", further stating that this information "suggest [ed] that he was under financial constraints" (Doc. 31 at 8). However, this "suggestion" is not evidence that plaintiff was unable or had difficulty seeing a physician because of lack of insurance or due to financial constraints.
Plaintiff also complains about the ALJ finding that the medical evidence is very weak in establishing the basis for plaintiff's alleged need to use a cane all of the time (R. at 30). The court finds this complaint to be without merit. Despite the reservations expressed by the ALJ as to plaintiff's need for a cane, the RFC established by the ALJ included a provision that plaintiff had no limitation in level surface walking at his own pace subject to the fact that plaintiff would be using a cane to the extent that the plaintiff may find it to be necessary (R. at 30, 33).
Plaintiff also contends that the ALJ mistakenly found that plaintiff had "no" medication side effects, citing to R. at 25. However, the ALJ did not make an express finding that plaintiff had "no" medication side effects. The ALJ did analyze the use of medication by plaintiff, and stated that the medical records suggest that plaintiff's use of pain medications has been sporadic (R. at 25). The use and levels of medication and their effectiveness are proper matters to be considered by the ALJ when analyzing plaintiff's allegations of pain and his credibility. The court finds no clear error in the analysis by the ALJ on this issue.
Plaintiff also notes that the ALJ discounted plaintiff's credibility because plaintiff never had surgery for any of his impairments. Plaintiff correctly notes that plaintiff's physicians spoke with him about surgical options, but never clearly prescribed surgery (Doc. 31 at 26). It is entirely appropriate for the ALJ to take into account that none of his treating physicians believed, at any time, that any of his impairments were so serious that surgery was clearly prescribed.
IT IS THEREFORE RECOMMENDED that the decision of the Commissioner be reversed, and that the case be remanded for further proceedings (sentence four remand) for the reasons set forth above.
Copies of this recommendation and report shall be mailed to counsel of record for the parties. Pursuant to 28 U.S.C. § 636(b)(1), as set forth in Fed.R.Civ.P. 72(b) and D. Kan. Rule 72.1.4, the parties may serve and file written objections to the recommendation within 10 days after being served with a copy.