Opinion
Case No. 2:01-CV-00275-DS
March 20, 2003
MEMORANDUM DECISION AND ORDER
I. INTRODUCTION
Plaintiff, pursuant to 42 U.S.C. § 405 (g), seeks judicial review of the decision of the Commissioner of Social Security denying her claim for Disability Insurance Benefits. Plaintiff claims disability allegedly beginning April 1, 1999 due to Crohn's disease, arthritis, and anxiety. Plaintiff's application was denied initially and upon reconsideration. A hearing was held on May 31, 2000 at which Plaintiff appeared and was represented by counsel. In a decision dated August 11, 2000 the Administrative Law Judge ("ALJ") denied benefits, concluding that although plaintiff was unable to return to her past work as a cosmetologist, she retained the residual functional capacity ("RFC") to perform other jobs available in significant numbers within the national economy and, therefore, Plaintiff was not disabled for purposes of the Social Security Act. The Appeals Council denied Plaintiff's subsequent request for review.
II. STANDARD OF REVIEW
The court reviews the Commissioner's decision to evaluate whether the record contains substantial evidence to support the findings, and to determine whether the correct legal standards were applied. Pacheco v. Sullivan, 931 F.2d 695, 696 (10th Cir. 1991). Substantial evidence to support the Commissioner's decision that plaintiff is not disabled is "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Broadbent v. Harris, 698 F.2d 407, 414 (10th Cir. 1983) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In reviewing the Commissioner's decision, the court cannot weigh the evidence or substitute its discretion for that of the Commissioner, but the court has the duty to carefully consider the entire record and make its determination on the record as a whole. Dollar v. Bowen, 821 F.2d 530, 532 (10th Cir. 1987)
Disability is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423 (d)(1)(A). The Commissioner has established a five-step sequential evaluation process to determine if a claimant is disabled. Reyes v. Bowen, 845 F.2d 242, 243 (10th Cir. 1988) (listing five steps); 20 C.F.R. § 404.1520, 416.920. The first step is to decide whether the claimant is currently engaged in substantial gainful employment. The second step is to decide whether the claimant's impairments are severe. The third step is to decide whether the impairments meet or equal one of the listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. The fourth step is to decide whether the claimant's impairments prevent him from performing his past relevant work. The fifth and last step is to decide whether the claimant could engage in other substantial gainful activity considering his age, education, and past work experience. If a claimant is determined to be disabled or not disabled at any step, the evaluation process ends there. Sorenson v. Bowen, 888 F.2d 706, 710 (10th Cir. 1989). The burden of proof is on the claimant through step four; then it shifts to the Commissioner. See id. (citing Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989)).
III. DISCUSSION
A. The ALJ's Decision.
As noted, Plaintiff alleges an inability to work due to "arthritis, Crohn's disease or regional enteritis and psychiatric disorders including anxiety related disorders". (R.. 36). At step one the ALJ found that plaintiff had not engaged in substantial gainful activity since April 1, 1999, the claimed onset date of disability. Proceeding to step two the ALJ found that plaintiff has Crohn's — like disease and an anxiety related disorder which are sever impairments. Arthritis was found not to be a severe impairment for Plaintiff. At step three, however, the ALJ concluded that Plaintiff's impairments did not meet or equal one of acknowledged listed impairments found in Appendix 1 of 20 C.F.R. Part 404, Subpart P. The ALJ proceeded to determine at step four that Plaintiff's residual functional capacity was such that she could not perform her past relevant work as a cosmetologist. At step five, the ALJ determined that Plaintiff had the residual functional capacity to perform other work available in significant numbers in the national economy.
B. Treating Physicians' Opinions.
Plaintiff first claims that the ALJ did not give proper weight to her treating physicians' opinions regarding her disability status. Specifically she complains that the ALJ failed to accept evidence of ongoing complaints of pain, nausea, diarrhea, ignored clinical findings of recurrent bowel obstructions, and ignored findings related to her anxiety.
The ALJ must give substantial weight to the evidence and opinions of the claimant's treating physicians unless good cause is shown for finding to the contrary. Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987).See also Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir 2001) ("ALJ is required to give controlling weight to a treating physician's well-supported opinion, so long as it is not inconsistent with other substantial evidence in the record"). A treating physician's opinion may be rejected if it is not "well supported by clinical and laboratory diagnostic techniques" and if inconsistent with other substantial evidence of record. Castellano v. Secretary of Health Human Servs., 26 F.3d 1027, 1029 (10th Cir 1994); Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir. 1995)
The ALJ considered, but gave little or limited weight to, the opinions of Dr Kuwahara and Dr. Davis. Melvin Kuwahara, M.D., treated Plaintiff for symptoms consistent with Crohn's disease including recurrent partial bowel obstructions, recurrent cramping abdominal pain and nausea. He noted that her complaints of joint and back pain were also likely associated with her Crohn's disease. He also noted that she "has been treated for anxiety which in part appears to be related to stress associated with coping with her inflammatory bowel disease". (R. 227). He opined that she required 2 hours of rest in an 8 hour work day, could lift 5 pounds frequently and 10 pounds rarely, and had bilateral hand limitations with fine manipulation. He also opined that "at this time symptoms associated with [Plaintiff's] Crohn's disease appear to be impairing her ability to hold regular employment." (R. 227).
The Commissioner correctly notes that Dr. Kuwahara did not provide a basis for Plaintiff's sitting restriction or for her need to lie down for two hours during an 8 hour work day. Dr. Kuwahara's treatment notes make no mention of arthritis, back or hand pain, or related problems. His only mention of any similar complaint was on May 25, 1999 when he noted that "[f]or the past week the patient has been taking Celebrex for left elbow swelling and pain." (R. 198). His notes reflect occasional bowel problems which appear to be relatively well controlled. The court, therefore, agrees with the Commissioner that the ALJ had a sufficient basis or good cause for discounting Dr. Kuwahara's opinion "[b]ecause of the lack of support of his [Dr. Kuwahara's] opinions with clinical or laboratory findings and the inconsistency of his opinion with other credible evidence including the claimant's daily activities". (R. 14).
Daniel Davis, M.D., Plaintiff's primary care physician, opined that Plaintiff must lie down for 2 hours in an 8 hour workday, could lift 10 pounds frequently and 20 pounds rarely, and had limitations with grasping and fine hand manipulation. (R. 229). He also indicated she had difficulty with sustained concentration and persistence in work-related activities, and moderate to marked difficulty in understanding and memory. (R. 230-231). The court, likewise, concludes that the ALJ had a sufficient basis or good cause for giving limited weight to Dr. Davis' opinion regarding Plaintiff's ability to engage in physical activities because Dr. Davis did not provide the basis for his opinion. (See generally R. 184-193). Similarly, the ALJ also had good cause for discounting Dr. Davis' opinion regarding Plaintiff's mental work capacity because Dr. Davis failed to provide the basis for his opinion. Dr. Davis' treatment notes reflect that he prescribed medication for anxiety only and that Paxil improved the problem. There is no record of counseling sessions. His opinion was inconsistent with the opinions of Dr. Manwill and Dr. Egan who found that Plaintiff's mental status was essentially normal, (R. 179-180, 182), and Plaintiff's self — report that her anxiety was alleviated with medication.
The record reflects that the ALJ also considered the report of David Spendlove, Ph.D. In weighing Dr. Spendlove's report, the ALJ noted the absence of any specific recommendation for ongoing mental health counseling, Plaintiff's self — report of improvement with Depakote, and the absence of an opinion relative to Plaintiff's ability to perform work related activities. (R. 14, 240, 236, 235).
Moreover, in the court's opinion, the overall record reasonably can be read to support the Commissioner's position with respect to Plaintiff's treating physicians. Although Plaintiff's Crohn's disease and anxiety were severe, her symptoms were alleviated with medication. Plaintiff told Dr. Manwill in July 1999 that Pentasa and Paxil were helping her Crohn's disease and her anxiety, and that she had not had a panic attack in two months. (R.180, 181). She reported to Dr. Kuwahara in April 1999 that Pentasa was helping to alleviate her stomach pain. (R. 200). Dr. Manwill, an examining psychologist, found Plaintiff's mental status was essentially normal in July 1999. (R. 179-80). In April 2000 Plaintiff told Dr. Spendlove that, although struggling in terms of thought and disorganization, she was feeling calmer on Depakote. (R. 236). Plaintiff's complaints of severe back and hand pain were not consistent with the medical evidence. Although initially treated for such complaints, (R.188, 233), the medical record is devoid of objective clinical findings or ongoing treatment for Plaintiff's alleged disabling arthritis. Plaintiff's description of her activities reasonably could be viewed as inconsistent with her allegations of disabling physical and mental impairments. In sum, it appears to this court that the ALJ had a sufficient basis to properly discount the treating physicians' opinions.
C. Opinions of State Agency Consultants.
Plaintiff next claims that the ALJ improperly adopted the opinion of the state agency consultants, that she retained the ability to do light work, because those opinions did not take into account her most current medical information. The court agrees with the Commissioner that the ALJ did not "adopt" the opinion of the nonexaming Disability Determination Services ("DDS") physicians, but gave weight to those findings supported by substantial evidence in the record as a whole. The record reflects that after the DDS physicians' review of the record, Dr. Davis and Dr. Kuwahara completed their assessment of Plaintiff's physical and mental capacity. Those assessments, as noted, were discounted by the ALJ. Dr. Kuwahara's treatment notes after the DDS physician's review merely reflect Plaintiff's sporadic treatment for Crohn's disease. Dr. Spendlove's treatment of Plaintiff, which also occurred after the DDS review, reflects that Plaintiff continued to complain of problems with anxiety. However, contrary to the DDS findings, the ALJ found that Plaintiff's mental impairment was severe and included mental limitations in her RFC.
D. Plaintiff's Credibility.
Plaintiff further claims that the ALJ's finding, that Plaintiff's testimony is not credible, is not supported by substantial evidence. The court disagrees. "`Credibility determinations are peculiarly the province of the finder of fact, and we will not upset such determinations when supported by substantial evidence.'" Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quoting Diaz v. Secretary of Health Human Servs., 898 F.2d 774 777 (10th Cir. 1990)). As the Commissioner notes, the ALJ was not required to set forth "a formalistic factor — by — factor recitation of the evidence" he relied on in evaluating Plaintiff's credibility. Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir 2000) If the ALJ disbelieved her allegations, he must explain what evidence led him to conclude the claimant's allegations were not credible. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). It appears to the court that the ALJ did this. The ALJ found as follows:
When evaluating the claimant's testimony regarding her functional limitations the undersigned noted that it was internally inconsistent, for example, she testified that she cleans the house and that her daughters come and do it. In July 1999 she told Dr. Manwill that she rides her horse, just less frequently but testified that she had not ridden her horses in two years. She alleged diarrhea resulting in frequent accidents but there is no mention of that in doctor's notes. She testified to experiencing anxiety attacks occurring 3 to 4 times daily for the past 2 years but reported to Dr. Manwill in July 1999 that she had not had any in the previous 2 months and that the medication was helping with that which is what was also recorded as her report to Dr. Davis. Considering all of this, the undersigned finds that the claimant's testimony was not fully credible to the extent of preventing all work.
(R. 16).
E. Step Five.
Finally, Plaintiff contends that the Commissioner failed to meet her burden of proof at step five, when the ALJ found that Plaintiff could do light work and that jobs in significant numbers would accommodate an individual with Plaintiff's limitations. Plaintiff complains that based on the assessments of Dr. Davis and Dr. Kuwahara that she requires a two hour rest period in each eight hour work day, all work in the national economy would be eliminated. As noted, however, the ALJ properly discounted the reports of Dr. Davis and Dr. Kuwahara. The ALJ properly solicited the testimony of a vocational expert, who opined that an individual of Plaintiff's age, education, vocational experience, and credible physical and mental limitations could perform certain specific jobs available in sufficient numbers in the national economy. The ALJ was entitled to consider vocational expert testimony as evidence of jobs Plaintiff could perform. Ellison v. Sullivan, 929 F.2d 534, 537 (10th Cir. 1990).
Plaintiff next complains that the medical records reflect she has bilateral hand impairments that prevent her from performing light work, and that she is precluded from performing any work due to her mental limitations. The court agrees with the Commissioner that Plaintiff's alleged bilateral hand impairments are not supported in the medical record. The record reflects that Plaintiff was treated briefly by Dr. Davis for lateral epicondylitis in her left hand, (R. 188), and that Dr. Kuwahara treated Plaintiff with Imuran, a medication indicated for rheumatoid arthritis. (R. 233). The medical record, however, is devoid of objective clinical findings or ongoing treatment for Plaintiff's alleged disabling arthritis.
Contrary to Plaintiff's assertion, the ALJ did conclude that Plaintiff had some mental limitations. The ALJ found that Plaintiff "can no more than frequently understand, remember or carry out detailed instructions, maintain a production rate schedule, work with co-workers or work with the general public." (R.16). That assessment, in the courts opinion, is supported by substantial evidence of record. Dr. Manwill, the examining psychologist found Plaintiff's mental status was essentially normal in July 1999, and that she had the mental capacity for unskilled work. (R. 179-80). Merritt H. Egan, M.D., reported in August 1999 that Plaintiff's impairments are not severe and that she can do simple 2 step job instruction work. (R. 182). The state agency medical consultants determined that Plaintiff's physical and mental impairments were not of disabling severity. (R. 209-226). Plaintiff was subsequently treated by Dr. Spendlove for complaints of anxiety and depression. (R. 236-240). Plaintiff reported that Paxil was helping to control her anxiety, although she struggled with disorganization and losing things. The record does not reveal subsequent ongoing counseling or psychotherapy. The evidence of infrequent medical treatment can be viewed as discrediting Plaintiff's claim of disabling mental impairments.
IV. CONCLUSION
The court is of the opinion that the Commissioner's decision is supported by substantial objective evidence of record and is not the result of any legal error which has been brought to the court's attention. Therefore, based on the foregoing reasons as well as the Commissioner's opposing memorandum in general, Plaintiff's complaint is DISMISSED and the Commissioner's decision to deny Plaintiff's claim of disability insurance benefits is AFFIRMED.
IT IS SO ORDERED.
This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED
that plaintiff's complaint is dismissed and the Commissioner's decision to deny plaintiffs claim of disability insurance benefits is affirmed.