Opinion
Civil Action No. 00-2467-KHV
July 2, 2001
MEMORANDUM AND ORDER
Trecia R. Barrow brings suit under 42 U.S.C. § 405(g) and 1383(c)(3) seeking judicial review of the Commissioner's decision to deny disability benefits under Title II of the Social Security Act ("SSA"), 42 U.S.C. § 401 et seq., and supplemental security income ("SSI") benefits under Title XVI of the SSA, 42 U.S.C. § 1381 et seq. This matter is before the Court on plaintiff's Motion For Judgment (Doc. #6) filed February 17, 2001. For reasons stated below, the Court overrules plaintiff's motion.
Two social security disability benefit programs are available: disability insurance for qualified individuals who paid social security taxes for the relevant period, and supplemental security income ("SSI") for individuals who did not. The pertinent regulations are the same for both programs. See Eads v. Sec'y of Dep't of HHS, 983 F.2d 815, 816 (7th Cir. 1993).
Procedural Background
On March 23, 1998 and May 14, 1998, plaintiff filed applications for SSI and disability insurance benefits. Tr. 56-58. Plaintiff claimed that she was disabled beginning March 19, 1998, as a result of lupus. Tr. 73. She explained that she could not work because:
I am very fatigued and the headaches do not allow me to drive or see very clearly. Also the joint pain makes it difficult to walk and the chest pain makes it hard to breathe.
Id. On November 26, 1999, an Administrative Law Judge ("ALJ") found that plaintiff was not disabled. Tr. 13-27. The Appeals Council denied plaintiff's request for review. Tr. 6-7.
Factual Background
The following evidence was presented to the ALJ.
Trecia Rachael Barrow is 30 years old. Tr. 336. She is five feet, five inches tall and weighs 170 pounds. Id. She has never been married and has two sons aged ten and two. Tr. 338. Both sons live with plaintiff in a duplex. Id. Nobody else lives in the home. Id. Plaintiff receives $500 a month in social security benefits for her 2-year old son, because he was born with an imperforate anus. Tr. 371. She also receives $123 a month in food stamps. Id. She does not receive money from any other sources. Id. Plaintiff graduated from high school and completed two years of college. Tr. 336. She can read and write, and she has a driver's license. Tr. 337.
An imperforate anus is a "congenital absence of an anal opening due to the presence of a membranous septum (persistence of the cloacal membrane) or to a complete absence of the anal canal." Stedman's Medical Dictionary at 109, 164 (26th ed. 1995).
Plaintiff has worked as a dispatcher, a long-distance operator, a telemarketer and various customer service and clerical positions. Tr. 348-358. She last worked in 1996, as a dispatcher. Tr. 348. She stopped working in June 1996, due to complications with her pregnancy. Id. She did not return to work after the birth of her second son (November 9, 1996) because of his birth defect. Tr. 174, 348, 371.
Plaintiff's medical evidence establishes that she suffers from migraine headaches, mild mitral valve prolapse, colitis and possible connective tissue disease. Plaintiff also has a history of endometriosis. Plaintiff complains of fatigue, headache, chest pain, shortness of breath, palpitations, nausea, abdominal pain, vomiting, diarrhea, light sensitivity and joint pain and/or stiffness. On April 7, 1997, Dr. James Mirabile, M.D., examined plaintiff on an emergency basis for abdominal cramping and pain caused by a cyst on her left ovary. Tr. 256. Dr. Mirabile scheduled a laparotomy with extensive adhesion lysis and oophorectomy as soon as possible. Id. The next day, Overland Park Regional Medical Center ("OPRMC") admitted plaintiff for three days. Tr. 143-150. Dr. Mirabile noted that plaintiff had an ultrasound demonstrating a solitary mass in the pelvis, measuring 4 cm in greatest dimension, containing several hypoechoic masses with a dominant 15 mm mass, consistent with an ovary with a dominant follicular cyst.
Plaintiff testified that Dr. Mirabile is an OB/GYN. Tr. 340.
An oophorectomy, or ovariectomy, is the excision of one or both ovaries. See Stedman's Medical Dictionary at 1248, 1273. Dr. Mirabile had already performed a hysterectomy on plaintiff on January 7, 1997. Tr. 145, 160-168, 253-260.
Tr. 145. Dr. Mirabile performed an exploratory laparotomy with left salpingo-oophorectomy, extensive adhesiolysis, repair of enterorrhaphy and appendectomy. Tr. 149-150. He noted that plaintiff tolerated the procedure extremely well, with no complications. Tr. 143. Dr. Mirabile discharged plaintiff with prescriptions for darvocet, estratest (hormone therapy) and cephalexin (to prevent skin incision infection). Id.
An enterorrhaphy is a suture of the intestine. See Stedman's Medical Dictionary at 577, 1179.
Darvocet is prescribed to relief mild to moderate pain. See Physicians' Desk Reference at 1574 (54th ed. 2000).
On April 17, 1997, plaintiff followed up with Dr. Mirabile. Tr. 257. He noted that her incision was healing well and that plaintiff was feeling much better. Id. Dr. Mirabile prescribed phentermine hydrochloride for weight loss. Id. On June 20, 1997, Dr. Mirabile reported that plaintiff had lost 15 pounds in two months. Tr. 251.
On July 7, 1997, Dr. Mirabile examined plaintiff for pain in the lower right quadrant. Tr. 251. An ultrasound revealed a lot of stool in the colon. Id. Dr. Mirabile prescribed colace and bentyl and asked her to follow up within 72 hours. Id. On July 9, 1997, plaintiff called and reported that she had not had a bowel movement for two days. Id. Dr. Mirabile recommended an enema, which plaintiff agreed to try. Id.
Colace is a stool softener. See Physicians' Desk Reference at 2585.
On July 20, 1997, plaintiff called complaining of pelvic pain and reported that she was running out of pain medication. Tr. 250. Dr. Mirabile's office prescribed more darvocet. Id. The next day, Dr. Mirabile saw plaintiff on an emergency basis for severe right-sided pain in her abdomen, located from her upper quadrant down to the pelvic region. Id. An ultrasound, UA and gallbladder scan were negative. Id. Dr. Mirabile stated that he would have Dr. Blando follow up with plaintiff to determine the cause of her pain. Id.
The record does not indicate Dr. Blando's full name or specialty, or whether Dr. Blando examined and/or diagnosed plaintiff.
On July 31, 1997, plaintiff visited the emergency room at Columbia Overland Park Regional Medical Center with pain in her right upper quadrant and right shoulder. Tr. 139-142. Plaintiff reported that she had had the pain for three weeks, but that it had worsened. Tr. 139. The doctor noted that plaintiff was not in acute distress and that her vital signs and physical exam were unremarkable. Id. The doctor diagnosed abdominal pain and constipation. Id. Plaintiff received a milk of molasses enema, which provided much relief. Id. Plaintiff was advised to follow up with Dr. Mirabile the next day. Id.
The record does not indicate whether plaintiff did so.
On August 26, 1997, plaintiff consulted Dr. Charles L. Brooks, M.D., Olathe Medical Center, for abdominal pain. Tr. 226-229. Dr. Brooks noted that approximately two and half months earlier, plaintiff had developed a dull right lower quadrant pain which lasted one to two weeks and gradually migrated into the right upper quadrant, where it remained. Tr. 226, 229. Plaintiff reported sharp exacerbations of pain which radiated into her right shoulder and were associated with nausea and vomiting. Tr. 226, 229. Over the counter medicines provided no relief. Id. Dr. Brooks noted that since April 1997, plaintiff had been taking phentermine to lose weight and that she had lost 40 pounds. Id. Plaintiff had stopped taking the drug two months earlier, however, when her symptoms developed. Id. Dr. Brooks noted that Dr. Mirabile had performed a sonogram of plaintiff's gallbladder, which was negative. Tr. 226. Dr. Brooks examined plaintiff and found that she had right upper quadrant pain of uncertain etiology. Tr. 227. He prescribed prevacid and ordered an EGD, noting that if it was negative he would recommend a sonogram at a radiology facility. Tr. 228. On September 8, 1997, Dr. Brooks performed an EGD with biopsy to rule out peptic ulcer disease. Tr. 225. The results were normal. Id.
In one report Dr. Brooks stated that the exacerbations occurred two to three times a day. Tr. 229. In another report he stated that they occurred every two to three days. Tr. 226. The Court cannot determine which report is correct.
The active ingredient in prevacid is substituted benzimidazole, which inhibits gastric secretions. See Physicians' Desk Reference at 3105.
EGD is an abbreviation for esophagogastroduodenoscopy, which is an endoscopic examination of the esophagus, stomach and duodenum. See Stedman's Medical Dictionary at 598.
On September 10, 1997, plaintiff visited Dr. Mirabile for weight management. Tr. 248. Plaintiff reported that a gastrointestinal doctor had treated her. Dr. Mirabile noted that she was doing "really well" at the time. Id. He examined plaintiff and placed her back on phentermine hydrochloride. Id.
On October 13, 1997, Dr. Brooks performed a colonscopy. Tr. 224. He noted that the results of plaintiff's upper endoscopy, abdominal sonogram and CT scan of the abdomen were normal. Id. Dr. Brooks reported an impression of abdominal pain of uncertain etiology. Id. The pathology report diagnosed "colitis with a slightly thickened fibrocollagenous band beneath surface epithelium suggestive of collagenous colitis." Tr. 223. It further commented:
Colitis is an inflammation of the colon. Collagenous colitis occurs mostly in middle-aged women and is characterized by persistent watery diarrhea and a deposit of a band of collagen beneath the basement membrane of colon surface epithelium. See Stedman's Medical Dictionary at 364.
Sections show segments of colonic mucosa with slight increase in the number of inflammatory cells in the edematous lamina propria including some neutrophils and eosinophils. There is a subepithelial band of collagen which appears to be slightly thickened, and highlighted by special connective tissue stain utilizing a trichrome stain. In the appropriate clinical setting the morphologic findings are consistent with collagenous colitis.
Id.
On March 13, 1998, plaintiff visited the emergency department at Shawnee Mission Medical Center ("SMMC") with a severe headache. Tr. 236. Plaintiff reported that she had had the headache for two weeks, and that it was accompanied by nausea and vomiting. Id. Plaintiff stated that she had no history of headaches. Id. The emergency department record reported that other than a history of endometriosis, plaintiff had been in excellent health. The results of a non-contrast CT of plaintiff's head were unremarkable. Tr. 210. Doctors performed a lumbar puncture and discovered a mildly elevated sed rate, which could reflect an inflammatory process. Tr. 237-238. They assessed acute severe cephalgia and prescribed lortab and bed rest. They also recommended that plaintiff contact Dr. George Bures, M.D., if her symptoms did not significantly improve within two days and that she follow up with her personal physician. Tr. 237.
Cephalgia means headache. See Stedman's Medical Dictionary at 310.
Lortab relieves moderate to moderately severe pain. See Physicians' Desk Reference at 3121.
Two days later, on March 15, 1998, plaintiff returned to the emergency department at SMMC complaining of numbness and tingling in her lower back and legs. Tr. 233. Plaintiff still suffered from a headache. Id. Dr. David S. Vodonick, M.D., opined that plaintiff had been traumatized and was sore from spinal needles from the lumbar puncture two days earlier and that she had a viral syndrome with headache and myalgias. Tr. 234. He recommended that plaintiff continue lortab, use flexeril and follow up with Dr. Bures, as previously recommended. Id.
Myalgia is muscular pain. See Stedman's Medical Dictionary at 1161.
Flexeril relieves muscle spasm associated with acute, painful musculoskeletal conditions. See Physicians' Desk Reference at 1797.
The record does not indicate whether plaintiff followed up with Dr. Bures.
On April 1, 1998, Dr. Mark A. Greenfield, M.D., The Headache Pain Center, examined plaintiff for headaches. Tr. 183-184. Plaintiff reported that she began having headaches in February 1998. Tr. 183. She said that she had almost constant headaches four to six times a week. Id. The headaches took five to ten minutes to reach maximum intensity and lasted the rest of the day, accompanied with nausea, vomiting, sonophobia and photophobia. Id. Dr. Greenfield noted that plaintiff was a stay at home mother. Tr. 184, 198. His exam revealed that:
It appears that plaintiff sought treatment for headache pain from Dr. William J. Hendricks, M.D., on March 19, 1998, and April 1, 1998 but copies of the medical records in the transcript are not legible. See Tr. 205-208. Dr. Hendricks referred plaintiff to Dr. Greenfield. Tr. 183.
Spurling's test reproduces marked neck and head pain with pain extending to the shoulders and the proximal upper extremities. Lhermitte's sign is negative except for an exacerbation of cervical pain. Cervical traction does not appreciably ameliorate her symptomatology. There is extremely limited range of motion of the cervical spine in all planes tested. There is tenderness in the midline of the paraspinous muscles.
Tr. 184. Dr. Greenfield assessed "[c]ervicogenic headaches, presumably secondary to cervical radiculitis/radiculopathy." Id. He performed a cervical epidural nerve block with steroid augmentation to reduce the severity of plaintiff's pain. Id. He gave her samples of cataflam for abortive treatment and started her on trazadone as an adjuvant analgesic. Id. Dr. Greenfield asked plaintiff to return on April 6 for further evaluation and treatment. Id.
On April 9, 1998, Dr. Charles L. Weinstein, M.D., Neurological Consultants of Kansas City, Inc., examined plaintiff for headaches. Tr. 214-215. Plaintiff reported symptoms similar to those which she had reported to Dr. Greenfield. Id. Dr. Weinstein noted that CT and MR scans of plaintiff's head were normal. Plaintiff reported that the cervical epidural which Dr. Greenfield performed had aggravated her headaches and that the medicine did not help. Id. Dr. Weinstein found that plaintiff's history was consistent with a diagnosis of chronic daily migraine headache. He discontinued her previous medications and prescribed nortriptyline daily and zomig as needed for severe headache. Tr. 215.
On April 21, 1998, Dr. William J. Hendricks, M.D., examined plaintiff for chest pain and shortness of breath. Tr. 204. Plaintiff reported intermittent pain over the last two days with deep breaths, moving and twisting. Id. She also wanted to follow up on her elevated sed rate from the previous month and get help for a rash on her right buttock. Id. Dr. Hendricks noted some slight palpable tenderness in the chest wall and asked her to return in the morning for a chest x-ray. Id. The results of the x-ray were normal. Tr. 209.
On April 24, 1998, Dr. Weinstein examined plaintiff for headaches. Tr. 213. Plaintiff continued to have headaches almost daily, but she reported a marked reduction in the intensity with nortriptyline. Id. The medicine caused drowsiness, so plaintiff began taking it at bedtime. Id. She reported no other side effects. Id. Since beginning nortriptyline, plaintiff had only one severe headache, which responded well to zomig. Id. Dr. Weinstein added a prescription of inderal LA. Id.
On June 2, 1998, Dr. Herbert B. Lindsley, M.D., Professor of Medicine, The University of Kansas Medical Center ("KU Medical Center"), School of Medicine, Department of Internal Medicine, Division of Allergy, Clinical Immunology and Rheumatology, saw plaintiff on referral by Dr. Hendricks. Tr. 298. On an intake questionnaire, plaintiff reported severe headaches, fatigue, chest pain, shortness of breath and aching joints. Tr. 303. In response to questions regarding her activities and lifestyle, plaintiff stated that she could perform the following without any difficulty: dress herself, get in and out of bed, lift a full cup or glass to her mouth, walk outdoors on flat ground, wash and dry her entire body and turn regular faucets on and off. Tr. 307. She reported that she could do the following tasks with some difficulty: bend down to pick up clothing from the floor, get in and out of a car, run errands, shop and drive a car five miles from her home. Id. She stated that she had much difficulty climbing a flight of stairs and that she could not walk, run or jog two miles or participate in sports games. Id. On a scale of one to ten, with ten being the most severe, plaintiff stated that her pain in the last week was 2.8. Id. On the same scale, she rated her fatigue as 9.9, a major problem. Id.
Dr. Lindsley noted that plaintiff had a three month history of generalized musculoskeletal pain, particularly in her neck, shoulders, back, knees and hands, and that she experienced variable morning stiffness up to several hours a day. Tr. 298. He also noted symptoms of shortness of breath, chest pain and migraine headaches. Id. Dr. Lindsley reported that plaintiff stayed home because of a disabled son. Id. Dr. Lindsley assessed fibromyalgia syndrome, noting no clinical findings suggestive of inflammatory arthritis even though plaintiff had an elevated ESR. Tr. 299. He planned to increase her prescription of nortriptyline, consider an additional analgesic and order lab tests of ESR, C-reactive protein and urinalysis. Id. Dr. Lindsley gave plaintiff educational material on fibromyalgia and suggested that she make her next appointment as needed. Id.
Plaintiff had already filed her claims of disability at this time, yet it appears that plaintiff did not inform Dr. Linsdley (or any other doctor) that she stayed home because she was disabled.
ESR stands for erythrocyte sedimentation, which is the formation of a sediment of mature red blood cells. See Stedman's Medical Dictionary at 595, 599, 1590.
On July 17, 1998, Dr. Charles Brooks, M.D., WestGlen Endoscopy Center, performed a colonscopy to assess the cause of diarrhea. Tr. 220-221. Dr. Brooks found no evidence of significant pathology in the cecum, ascending colon, transverse colon, descending colon, sigmoid colon or rectum. Id. He obtained random sigmoid colon biopsies to rule out collagenous colitis. Tr. 221. The pathology report diagnosed mild chronic inflammation of lamina propria with lymphoid follicle formation and found "no evidence of active chronic colitis, changes of collagenous colitis or of neoplasm." Tr. 222.
Plaintiff also consulted with Dr. Brooks at Olathe Medical Center in 1997. The record is unclear whether Dr. Brooks held positions with both Olathe Medical Center and WestGlen Endoscopy Center or whether he changed jobs.
On July 29, 1998, Dr. Brooks performed an endoscopy to assess the cause of plaintiff's diarrhea. Tr. 216-217. Dr. Brooks reported that he obtained (1) random biopsies of the second portion of the duodenum to rule out celiac sprue and (2) random antral biopsies for CLO testing. Tr. 216. He observed that the EGD was otherwise normal. Tr. 216. The pathology report diagnosed mild chronic inflammation of lamina propria. Tr. 219. It further stated, "We do not find significant villus blunting of fusion. This overall appearance is not suggestive of sprue or sprue-like condition." Id.
Plaintiff was in contact with Dr. Lindsley's office in August and September 1998 regarding continued problems, but the Court cannot determine what transpired based on the handwritten medical notes. See Tr. 295-296.
On September 24, 1998, plaintiff visited Dr. Mirabile. Tr. 248. Dr. Mirabile noted that plaintiff was in surgical menopause and that she had taken herself off of hormone therapy because she feared cardiovascular risks. Id. Dr. Mirabile discussed hormone therapy and placed her back on climara. He noted that plaintiff was having problems with pleuritic chest pain and hot flashes and stated that the hormone therapy would hopefully resolve some of her symptoms. Id. He also noted that plaintiff planned to follow up with Dr. Harms for cardiac evaluation. Id.
On September 27, 1998, plaintiff visited the emergency room at SMMC complaining of chest congestion. Tr. 231. Dr. Scott A. Hollrah, M.D., noted that plaintiff complained of sore throat, fever and chills for one day. Id. Plaintiff denied ear pain, cough, nausea, vomiting, diarrhea, headache or neck stiffness. Id. Plaintiff reported that she was on the following medications: nortiptyline, prozac and verapamil. Id. Dr. Hollrah diagnosed pharyngitis, gave her lortab for her discomfort and prescribed ceftin and tylenol 3 for home. Id. He noted that her condition on discharge was good and improved. Id.
On October 5, 1998, Dr. Geoffrey L. Harms, M.D., The Kenyon Clinic, evaluated plaintiff's chest pain. Tr. 267. Dr. Harms noted that plaintiff had been diagnosed as having systematic lupus or LSE. Tr. 267. He stated that plaintiff's chest pain was somewhat atypical and that
certainly causes to be ruled out include Lupus, pericarditis, possible discomfort secondary to pulmonary hypertension, valvular heart disease related to Lupus affects on the pulmonary vessels, and with her auscultatory findings mitral valve prolapse is also a distinct possibility.
Id. Dr. Harms recommended an echocardiogram, which he performed the same day. Tr. 267-268. The results revealed a mild mitral valve prolapse with trace to 1+ mitral regurgitation, but an otherwise unremarkable echocardiogram. Tr. 268. Dr. Harms stated:
I suspect the mitral valve prolapse may very well be playing a role in Ms. Barrow's atypical chest discomfort. Certainly there is no evidence for Lupus type disease i.e., pericardial effusion, etc. I have recommended taking 1/2; of a Toprol 50 mg a day on a prn basis and see if this helps.
Id.
On October 22, 1998, plaintiff followed up with Dr. Mirabile for hormone therapy. Tr. 247. Plaintiff reported that all of her menopausal symptoms had improved, and that she was no longer having hot flashes. Id. Plaintiff stated that Dr. Harms had diagnosed a mitral valve prolapse and prescribed a beta-blocker. Id. The only problem that plaintiff reported was a slight rash with her climara patch. Id. Dr. Mirabile recommended cortaid and asked her to follow up if she had any other problems. Id.
On October 27, 1998, plaintiff followed up with Dr. Harms for chest pain. Tr. 266. Plaintiff reported that the toprol was not helpful and may worsen her pain. Id. Dr. Harms switched her to ziac. Id. He also noted that plaintiff had a history of lupus and planned to see a rheumatologist soon.
On November 3, 1998, Dr. Lindsley examined plaintiff. Tr. 289-292. At this time plaintiff was on the following medications: prozac, nortriptyline, verapamil, darvocet (about three times a week) and z-beta. Tr. 289. Plaintiff reported that she experienced significant fatigue which prevented her from getting out of bed some days; nausea and vomiting once a week; diffuse joint pain in her shoulders, chest, fingers, knees, ankles, hips and toes which was worse in the morning; migraine headaches twice a month; insomnia, which nortriptyline, initially improved but no longer helped; anxiety attacks three times a week; sores in her nose; and occasional ulcers in her mouth. Tr. 289-290. It appears that Dr. Lindsley assessed possible fibromyalgia and/or connective tissue disease. Tr. 292. He referred plaintiff to opthalmology for an evaluation of keratoconjunctivis sicca and asked her to follow up in three to four months. Id.
The record contains only handwritten notes regarding Dr. Lindsley's assessment. See Tr. 292. The notes are not entirely legible, but they appear to read:
(1) Fibromyalgia — ? Connective tissue dy, r/o sjogren's
(2) Connective tissue disease, xerophthalmia + (arrow up) ESR CRD — consider Sjogren's Syndrome
See Tr. 292.
On November 11, 1998, plaintiff visited The Kenyon Clinic with chest pain. Tr. 265. Dr. James E. Davia, M.D., reported that
[l]ast night she developed some chest pain while she was cooking dinner. It is a heavy type of a tightness pain inferior to the left breast and in the sternal area that definitely hurts more when she takes a breath and makes her feel somewhat short of breath. It lasted all last evening and last night and she still has some today.
Id.
Dr. Davia noted that an electrocardiogram performed that day was normal. Tr. 265. He opined:
The patient's chest pain does not have characteristics of cardiac origin. It probably is musculoskeletal. I don't think that increasing the dose of Z-Beta will provide any benefit for this patient, but I told her she might start taking it on a regular basis rather than prn. I think that a heating pad to the chest wall and also Vicodin may be of help. She has tried a number of anti-inflammatories for this pain and they have not provided any benefit. I also told her to notify her rheumatologist about this pain.
Id.
On November 13, 1998, Lance L. Brown, M.D., and Jerry Menikoff, M.D., Ophthalmology Clinic, KU Medical Center, examined plaintiff. Tr. 288. Drs. Brown and Menikoff noted that plaintiff had a working diagnosis of lupus v. fibromyalgia. Id. They found no superior limbic keratoconjunctivis or keratoconjunctivis sicca, but they noted mild eye allergies. Id. They asked plaintiff to return in a year, or as needed, to monitor her condition. Id.
In late December 1998 and early January 1999, plaintiff telephoned Dr. Lindsley's office regarding sores in her nose and mouth and a skin rash. Tr. 286-287. On January 8, 1999, Dr. Lindsley examined plaintiff. Tr. 277-280. At this time plaintiff took the following medicine: flexeril, prozac as needed, verapamil for migraines, darvocet as needed and z-beta two times a week. Tr. 277. Plaintiff reported that she slept seven to eight hours a night. Tr. 277. She also reported episodic mouth sores, a rash for ten days on her shoulders, neck, fingers, ankles and hip, stiffness in the morning for 30 to 60 minutes and mid sternal chest pain. Tr. 277. Dr. Lindsley assessed (1) possible ill defined connective tissue disease, (2) mild joint paint, and (3) "hx. of stomatitis — none today." Tr. 280. He referred plaintiff to see a dermatologist that day for her rash. Id.
The medical report also states that plaintiff reported "episodes of SPB — present all time." Tr. 277. The Court cannot determine the meaning of SPB.
Kansas University Physicians, Inc., examined plaintiff's rash on January 8, 1999. Tr. 281-285. The record, however, contains only handwritten notes and the Court cannot discern which doctor examined plaintiff or the diagnosis. See id.
On February 8, 1999, plaintiff visited Dr. Harms reporting increased chest pain. Tr. 264. Dr. Harms noted:
This is not exactly like her pain with mitral valve prolapse was [sic] which did improve with Toprol. This is more of a pleural pericardial pain. This is very sharp like a knife sticking through her, sometimes through to the back. When she has it is [sic] somewhat positional, not clearly relieved by leaning forward but clearly worse and sharper with a deep breath and cough. She continues on Verapamil, Prozac, Nortriptyline, Darvocet, Toprol 25 mg/day was stop [sic] and she is on Z-beta.
Id. Dr. Harms believed that plaintiff was not suffering from mitral valve prolapse discomfort, but more of a "pleural pericardial thing" which may be related to heart inflammatory disease. Id. He decided to check a chest x-ray and echocardiogram to rule out pleural effusion, pericardial effusion, etc. Id. He also recommended a one week course of indocin SR 75 mg/day. Id. On February 16, 1999, Dr. Harms performed a 2-D M-Mode echocardiogram and dopler exam. Tr. 263. He reported a mild mitral valve prolapse with trace to 1+ mitral regurgitation, but an otherwise normal echocardiogram. Id.
On March 9, 1999, Dr. Lindsley examined plaintiff. Tr. 273-276. Plaintiff reported that she slept six to seven hours a night, and that she sometimes rested. Tr. 273. In addition, plaintiff reported increased recent problems with colitis and migraine headaches; mouth and nose sores; and joint stiffness in her ankles, toes and shoulders and pain in her hip for about 30 minutes in the mornings. Id. Tr. 276. Dr. Lindsley prescribed celebrex and asked her to return in three months. Id.
Dr. Lindsley's handwritten notes regarding his assessment on this visit are not legible. See Tr. 276. Celebrex is a non-steroidal anti-inflammatory drug. See Stedman's Medical Dictionary at 2334, 2901.
On March 29, 1999, plaintiff called Dr. Lindsley's office because her ankles and feet had been swollen for a week and her nose had been bleeding for five days. Tr. 272. The next day, plaintiff called back. Tr. 271. She had talked to her gastrointestinal doctor because she had bright red blood in her stool. Tr. 271. Based on this conversation, plaintiff stated that she believed that the blood in her stool was due to colitis but that she should discontinue celebrex in case it was aggravating the colitis. Id.
On August 20, 1999, Dr. Hendricks reported the following to plaintiff's attorney:
I first saw Ms. Barrow on 03-19-98 in follow up from Shawnee Mission Emergency Room where she was seen with severe headaches. These had developed and become progressively worse over 2 weeks prior to my evaluation. Patient's medical history at that time was significant for a history of colitis followed by Dr. Charles Brooks. She was noted to have an elevated sed rate on the evaluation done to that date. Over the next several weeks, patient developed progressive fatigue. Patient was seen on 06-02-98 by Herbert D. Lendsley, [sic] M.D. at K.U. Med Center, Department of Rheumatology. It was at that time felt that despite her laboratory results, her condition likely represented fibromyalgia. I understand per patient that this diagnosis has subsequently been changed to likely seronegative systemic lupus erythematosus. This would certainly explain her residual fatigue and possibly explain her headaches which have been better controlled with medical regimen that is detailed in several notes by Dr. Charles Weinstein, M.D.
In regards to patient's debility related to her condition, certainly with the diagnosis of systemic lupus erythematosus, severe fatigue and joint symptoms are consistent with this condition. As to the exact diagnosis, I would defer to Dr. Lendsley, [sic] Certainly the patient's symptoms and physical findings to date would be consistent with that diagnosis. It is certainly my medical judgement [sic] that she has suffered from the above detailed symptoms to a degree certainly consistent with debilitation that patient has complained of to the present time.
Tr. 318.
In her disability report dated April 28, 1998, plaintiff stated that she cleaned her house at least four times every day, did laundry three times a week, cooked meals three time a day, shopped for groceries regularly, drove to doctor's visits and took her son to and from school. Tr. 76. In support of her disability claim, plaintiff stated:
There are days were [sic] the pain in my joints makes it extremely difficult to get out of bed and the headaches are disabling. Also with my son's condition, (He was born with an imperforate anus and has a weakened immune system, which prohibits him from being placed in a day care environment) he needs my attention and care.
Tr. 84.
At the administrative hearing on September 8, 1999, plaintiff testified that the following conditions prevent her from working:
I consistently have migraine headaches, which I have problems with vision, light, nausea. I'm consistently having joint pain that makes it really difficult to walk, bend my fingers, move my neck. I always have fatigue, which pretty much limits any energy that I have. . . . [T]he biggest problem that I'm having at this particular point is a digestive disorder. I'm being treated for colitis, ulcerative colitis. . . . Here recently I've been vomiting blood, been passing blood and diarrhea in stool, severe abdominal pain.
Plaintiff testified that she began vomiting blood the night before the hearing. Tr. 345-346.
Tr. 341-342.
Plaintiff testified that she would not be able to work at any of her past jobs because of fatigue and migraine headaches. Tr. 358-359. Plaintiff stated that she suffers migraine headaches three times a week and that her headaches last one to three days and have become more frequent and severe. Tr. 342. Plaintiff testified that Dr. Weinstein believes that she has lupus and that her migraines may be associated with the disease. Tr. 343. Upon further questioning, plaintiff admitted that doctors have not definitively diagnosed her with lupus, but that it is a possibility. Id. She said that Dr. Lindsley has diagnosed her with an unnamed connective tissue disease. Tr. 344. When asked whether her fatigue is constant or occasional, plaintiff stated:
The fatigue is on, well, I shouldn't say on occasion. It's after I've been doing some type of activity in the morning, if I'm getting up and I'm caring for my children, if I'm walking up and down the steps.
Tr. 345.
Plaintiff also claims that she suffers from colitis, joint pain, chest pain, shortness of breath and insomnia. With respect to colitis, plaintiff is planning to take predisone for inflammation. Tr. 346-347. Plaintiff testified that she has joint pain all the time when she wakes up in the morning, but it goes away after a while. Tr. 345. Plaintiff also testified that her chest pains and shortness of breath are caused by her mitral valve prolapse, which a recent electrocardiogram showed was "very pronounced." Tr. 370. Finally, plaintiff testified that she can sleep only four hours at most each night. Tr. 366. She stated that she does not sleep during the day, but that she lies down in the afternoon for two to four hours because of fatigue or headache. Tr. 366-368. Plaintiff stated that she awakes refreshed on some mornings, but not all. Tr. 374. She said that her spells of energy typically last two to four hours and after that she feels very fatigued, short of breath and sweaty. Tr. 374. According to plaintiff, if she does not rest every four hours, she would be fatigued and have joint pain the next day "to a point where [she] would have to be in bed for probably another couple of days." Tr. 374-375.
The transcript contains no record of an electrocardiogram which shows that plaintiff's mitral valve prolapse is "very pronounced." To the contrary, the two electrocardiogram results in the transcript indicate that plaintiff's mitral valve prolapse is "mild." Tr. 268, 263.
Plaintiff testified that her condition flares-up three times a month. Tr. 375. Plaintiff stated that during a flare-up, she has a low-grade fever, a great deal of fatigue, joint pain and migraine headache, and that her mouth is dry and cracked with ulcers. Id. Plaintiff stated that a flare-up will last between three to seven days, and that her mother comes during that time to help plaintiff with her children and daily needs. Tr. 375-376. Plaintiff's mother testified at the administrative hearing. Tr. 377-379. Plaintiff's mother stated that she comes to plaintiff's house at least once a week. Tr. 377-378. At times when plaintiff has had difficulties during the past year and a half, plaintiff's mother has taken off work and stayed with her until she has gotten back on her feet. Tr. 378. Her mother also testified that plaintiff's oldest son helps quite a bit with lifting and watching over his little brother. Tr. 379.
Plaintiff's mother did not state how many times she has stayed with plaintiff over the last year and a half.
On a typical day, plaintiff wakes up at 7:00 a.m., dresses herself and takes care of her needs in the bathroom. Tr. 359. During the day, she cares for her two sons. Tr. 359. She lifts her youngest son, who weighs 26 pounds, and changes his diapers. Tr. 365. Plaintiff also performs chores around her home. Tr. 359. She cooks and washes dishes almost every day and she dusts, vacuums and does laundry twice a week. Tr. 360-361. Plaintiff shops for groceries with her two-year old son and drives to frequent doctors appointments. Tr. 361. She drives without problem unless she has a migraine headache. Tr. 361. If she has a migraine, she does not drive at all. Id. Plaintiff goes to movies and eats out with friends about twice a month. Tr. 362. She also participates in church services about twice a month. Tr. 364. Plaintiff does not exercise. Tr. 362. She watches television and reads fiction. Tr. 365. Plaintiff can lift 40 pounds, sit for four hours and stand for two hours. Tr. 368-369. Plaintiff feels fatigued after one flight of stairs. Tr. 369. She estimates that she can walk a half mile. Tr. 369. She can bend over to pick up a pen or pencil off the floor, and she can reach above her head to reach a cup off the shelf. Tr. 370.
The Commissioner retained Terry Cordray to testify as a vocational expert. Cordray testified that plaintiff had a history of clerical jobs which were skilled, sedentary jobs performed in a seated position. Tr. 380. Cordray further testified that if the ALJ believed plaintiff's testimony, plaintiff could not work an eight-hour day because
she would either not show up for work because of her inability to return to a second 8-hour day following 1 day of exertion. Or if she did get to work, as she states, she has to lie down daily for between 2 to 4 hours.
Tr. 381.
Standard of Review
The ALJ's decision is binding on the Court if supported by substantial evidence. See 42 U.S.C. § 405(g); Dixon v. Heckler, 811 F.2d 506, 508 (10th Cir. 1987). The Court must determine whether the record contains substantial evidence to support the decision and whether the ALJ applied the proper legal standards. See Castellano v. Sec'y of HHS, 26 F.3d 1027, 1028 (10th Cir. 1994). While "more than a mere scintilla," substantial evidence is only "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). The court must scrutinize the record and take into account any evidence which fairly detracts from the evidence which supports the Secretary's findings. See Nieto v. Heckler, 750 F.2d 59 (10th Cir. 1984). Evidence is not substantial "if it is overwhelmed by other evidence — particularly certain types of evidence (e.g., that offered by treating physicians) — or if it really constitutes not evidence but mere conclusion." Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir. 1985) (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)).
Analysis
Plaintiff bears the burden of proving disability under the SSA. See Henrie v. United States Dep't of HHS, 13 F.3d 359, 360 (10th Cir. 1993); Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). The SSA defines "disability" as the inability to engage in any substantial gainful activity for at least twelve months due to a medically determinable impairment. See 42 U.S.C.A. § 423(d)(1)(A). To determine whether a claimant is disabled, the Commissioner applies a five-step sequential evaluation: (1) whether the claimant is currently working; (2) whether the claimant suffers from a severe impairment or combination of impairments; (3) whether the impairment meets an impairment listed in Appendix 1 of the relevant regulation; (4) whether the impairment prevents the claimant from continuing her past relevant work; and (5) whether the impairment prevents the claimant from doing any kind of work. 20 C.F.R. § 404.1520, 416.920 (1996). If a claimant satisfies steps one, two and three, she is disabled; if a claimant satisfies steps one and two, but not three, then she must satisfy step four. If she satisfies step four, the burden shifts to the Commissioner to establish that the claimant is capable of performing work in the national economy. See Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988). In this case, the ALJ denied benefits at step four, rejecting plaintiff's claim that her impairments prevented her from performing her past relevant work in clerical positions. Specifically, the ALJ rejected the testimony of plaintiff and her mother, finding that they exaggerated the extent of plaintiff's functional limitations and subjective symptoms. Tr. 26.
The Tenth Circuit has set forth the following factors for analyzing complaints of subjective conditions: (1) whether claimant proves with objective medical evidence an impairment that causes the subjective condition; (2) whether a loose nexus exists between the impairment and the subjective condition; and (3) whether the subjective condition is disabling based upon all objective and subjective evidence. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); Luna v. Bowen, 834 F.2d 161, 163-64 (10th Cir. 1987). Plaintiff has satisfied the first two factors. See Luna, 834 F.2d at 164 ("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") (emphasis in original). Thus the ALJ must consider plaintiff's assertions regarding subjective conditions and decide whether he believes them. See id. at 163. In determining the credibility of plaintiff's testimony, the ALJ should consider such factors as:
In addition to disabling pain, the standard applies to complaints of other subjective conditions, including fatigue. See Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991); Jackson v. Bowen, 873 F.2d 1111, 1114 (8th Cir. 1989) (applying standard to claim of fatigue).
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.
Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988).
Plaintiff argues that the record does not support the ALJ's credibility findings. In reviewing the credibility determination, the Court should "defer to the ALJ as trier of fact, the individual optimally positioned to observe and assess witness credibility." Casias v. Sec'y of HHS, 933 F.2d 799, 801 (10th Cir. 1991). "Credibility is the province of the ALJ." Hamilton v. Sec'y of HHS, 961 F.2d 1495, 1499 (10th Cir. 1992). At the same time, the ALJ must explain why specific evidence relevant to each factor supports a conclusion that a claimant's subjective complaints are not credible. See Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995); but see Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000) (Kepler does not require formalistic factor-by-factor recitation of evidence). "Findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings." Id. (quoting Huston, 838 F.2d at 1133) (footnote omitted)). "In making a finding about the credibility of an individual's statements, the adjudicator need not totally accept or totally reject the individual's statements." See Social Security Ruling 96-7p, 61 Fed. Reg. at 34486. Rather, the ALJ "may find all, only some, or none of an individual's allegations to be credible." See id.
In discrediting plaintiff's testimony, the ALJ relied on several factors. First, he noted that plaintiff testified at the hearing in September 1999 that she slept at most four hours a night, yet she reported to Dr. Lindsley's office that she slept seven to eight hours a night in January 1999 and six to seven hours a night in March 1999. Tr. 22. Based on this discrepancy, the ALJ discounted plaintiff's testimony that she needs to lie down during the day because of fatigue. Tr. 22, 24. The discrepancy between plaintiff's testimony and the information contained in her medical records is a sufficient basis to discount plaintiff's testimony. See, e.g., Eiting v. Apfel, 44 F. Supp.2d 1008, 1020-21 (E.D.Mo. 1999) (inconsistencies in record support ALJ decision to discount claimant's testimony).
The ALJ also discounted plaintiff's claim that she needs to lie down due to migraine headaches, finding that because the medical records do not document consistent complaints, her headaches appear to be adequately controlled by medication. Tr. 22-24. Indeed, the record indicates that plaintiff last sought medical help for headaches on April 24, 1998, when she reported a marked reduction in her headache intensity as a result of medication. Tr. 213. The levels of medication and their effectiveness and the extensiveness of plaintiff's attempts to obtain relief are relevant factors to the credibility determination. See Huston, 838 F.2d at 1132. Moreover, conditions which are controlled with medication cannot serve as basis for disability. See, e.g., Dixon, 811 F.2d at 508.
In addition, the ALJ noted that five months had elapsed since plaintiff's last medical treatment record and that plaintiff did not produce a medical report to substantiate her claim that she had a recent echocardiogram which showed that her mitral valve prolapse is "very pronounced." Tr. 23. The ALJ concluded that the information which plaintiff conveyed to Dr. Lindsley, i.e. that she did not work because of her disabled son, reflected the true reason for plaintiff's decision to stay home. Tr. 24. See Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995) (fact that plaintiff quit working several years before onset of alleged disability relevant to credibility determination). Substantial evidence supports the ALJ conclusions. The Court therefore defers to the ALJ's decision to discount the testimony of plaintiff and her mother.
The ALJ discounted plaintiff's mother's testimony as substantially cumulative and not fully credible for the same reasons. The Court finds no error in this determination. See, e.g., Adams v. Chater, 93 F.3d 712, 715 (10th Cir. 1996) (ALJ not required to make specific written findings of each witness's credibility). Plaintiff asserts that the ALJ failed to consider the combined effects of her ailments. The record reflects that the ALJ considered plaintiff's complaints as whole, however, and that he discounted her subjective complaints based on her exaggerated testimony and discrepancies in the record.
Plaintiff also argues that the ALJ did not give sufficient weight to the opinion of Dr. Hendricks, her treating physician. The ALJ must give substantial weight to the opinion of a treating physician "unless good cause is shown to disregard it." Goatcher v. United States Dep't of HHS, 52 F.3d 288, 289-90 (10th Cir. 1995). When a treating physician's opinion is inconsistent with other medical evidence, the ALJ's task is to examine the reports of the other physicians, to see if they outweigh the reports of the treating physician. The ALJ must give specific, legitimate reasons for disregarding the treating physician's opinion that a claimant is disabled. Id. at 290. In addition, 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. 20 C.F.R. § 404.1527(d)(2)-(6).
The ALJ discounted the letter from Dr. Hendricks dated August 20, 1999, because (1) the record contained no office records from Dr. Hendricks after April 1998 and (2) the letter was based on a diagnosis of lupus, which Dr. Hendricks received second-hand from plaintiff. Tr. 23-24. Again, the record supports the ALJ decision. According to the medical records, Dr. Hendricks last saw plaintiff in April 1998, more than a year before he wrote the letter to plaintiff's attorney. This lapse in time suggests that Dr. Hendricks was not plaintiff's treating physician at the time he wrote the letter. Moreover, the letter states that his understanding of plaintiff's diagnosis is second-hand, from plaintiff, and that he would defer to Dr. Lindsley for the exact diagnosis. Finally, even if Dr. Hendricks were her treating physician, he does not opine that she is disabled. At most, he recites her medical history and states that plaintiff's complaints are consistent with the condition which plaintiff has told him she has. On this record, the Court concludes that substantial evidence supports the ALJ decision to disregard Dr. Hendricks' letter.
As previously noted, plaintiff testified at the hearing that doctors have not diagnosed her with lupus. Tr. 343-344.
IT IS THEREFORE ORDERED that plaintiff's Motion For Judgment (Doc. #6) filed February 17, 2001 be and hereby is OVERRULED.