Opinion
Case No. 00-4075-RDR.
October 19, 2001.
MEMORANDUM AND ORDER
This is an appeal from the denial of plaintiff's applications for disability and supplemental security income benefits. Plaintiff asserts that the defendant Commissioner's decision should be reversed because: it is not based on substantial evidence as a whole; the Administrative Law Judge (ALJ) failed to fully and fairly develop the record; the ALJ failed to consider the combination of plaintiff's impairments; the ALJ erred in rejecting plaintiff's subjective complaints; the ALJ erred in rejecting the opinions of plaintiff's treating physicians; the ALJ erred in determining the plaintiff's residual functional capacity; and plaintiff is presumptively disabled under Social Security Administration regulations.
At the time of his hearing before the ALJ, plaintiff was thirty-three years old. He has a ninth-grade education. He last worked on August 28, 1996. Plaintiff believes he had a stroke on that day, and he testified that he has had three strokes since. Plaintiff's applications for benefits were filed on January 2, 1997.
Plaintiff has previously worked as a truck driver, welder, auto mechanic, cook, glass cutter, punch press operator, municipal construction worker, foundry laborer, plastics trimmer, and warehouse worker.
Plaintiff has speech, writing, memory and concentration problems. He also suffers from migraine headaches, back pain and right-sided muscle weakness.
Plaintiff has been diagnosed as having two herniated discs in addition to cerebrovascular accident. There is some disagreement in the record as to whether plaintiff has actually had a stroke. He has been prescribed several medications.
Dr. Komes, plaintiff's treating physician, saw plaintiff a few times in 1996 and once in 1997. On August 5, 1996, Dr. Komes reported the plaintiff was suffering back pain after being struck by some shopping carts outside of a store in June. Plaintiff appeared to be in "minimal distress," though walking with an "antalgic gait on the right side." (Tr. 186). On examination, the doctor found normal strength throughout. He concluded from other tests that plaintiff had "some soft tissue injury on the right side" and scheduled plaintiff for further examination. (Tr. 186). Approximately a week later, plaintiff had an MRI which showed no significant nerve impingement and no "frank herniations." (Tr. 184). It was recommended that plaintiff not work because of his discomfort. Darvocet was prescribed. The next week, after another examination, it was recommended that plaintiff continue with physical therapy, medication and "try to integrate into normal work environment." (Tr. 183). Plaintiff reported the exacerbation of back pain to Dr. Komes on August 28, 1996 and was told to return to therapy.
On September 4, 1996, the stroke was reported to Dr. Komes. The doctor found right facial droop, mild right upper extremity weakness and agrammatic speech. (Tr. 181).
Plaintiff next saw Dr. Jain on September 18, 1996 regarding his complaints of stroke. Dr. Jain determined that plaintiff's comprehension was fair and that his speech was stuttering. He determined that plaintiff was wobbly when he stood with his feet together. (Tr. 195). Upon a follow-up examination, Dr. Jain noted plaintiff's complaints of migraine headaches and stated that an MRI had shown herniated disks at the L5-S1 level and the L4-5 level. (Tr. 194). Medication was prescribed for the headaches. Finally, on October 23, 1996, Dr. Jain reported that plaintiff's headaches were less severe and less frequent. (Tr. 196). In the three visits Dr. Jain had with plaintiff, the doctor could not find that plaintiff had a stroke.
On February 17, 1997, plaintiff was given a mental examination by Dr. Mintz, a psychologist. Dr. Mintz concluded that plaintiff had mild dysthymia and borderline intellectual functioning. He also found that plaintiff related well to co-workers and supervisors in the past; that he appeared able to understand simple instructions; that his concentration capacity appeared diminished; and that he appeared capable of handling his funds. (Tr. 221). Another examination by Dr. George Hough found no significant limitations in most mental functions. Only the ability to understand, remember and carry out detailed instructions was determined to be moderately limited. (Tr. 223-4). Dr. Hough considered plaintiff capable of simple unskilled work. (Tr. 227).
Plaintiff underwent a disability examination on March 22, 1997. The examiner found that plaintiff had a moderate limp on the right. He found no atrophy and normal range of motion in all joints. There was severe difficulty getting on and off the examining table and in hopping; moderate difficulty with heel and toe walking and squatting and arising from the sitting position. Some muscle weakness was reported in the upper and lower right extremity as well as decreased grip strength and dexterity on the right. (Tr. 238-41).
Dr. Komes, plaintiff's treating physician, completed a medical source statement in September 1997. He concluded that: plaintiff could occasionally lift up to 25 pounds; he could stand and/or walk for 15 minutes at a time for a total of three hours in an eight-hour workday; he could sit for eight hours in a workday; he should not climb or balance; and he could occasionally stoop, kneel, crouch, and bend. Additionally, Dr. Komes marked that plaintiff could reach, handle, finger, and feel on a limited basis. Dr. Komes mentioned that plaintiff stuttered and that it was difficult to separate what was a physical impairment and what was a psychological overlay. (Tr. 294-95). Dr. Komes concluded that plaintiff would benefit from a vocationally-oriented rehabilitation program "as his impairments are mild." (Tr. 310).
At the time of the hearing before the ALJ, plaintiff was separated from his wife, living with his mother, and caring for one of his two children. His wife had custody of the other child. Plaintiff testified that he writes with the left hand, although he is right-handed. Although plaintiff has trouble speaking, he seemed able to communicate effectively with the ALJ and the doctors he visited. Plaintiff stated that he had filled out "a couple hundred" job applications. (Tr. 58). He has trouble with concentration and cannot remember his social security number. (Tr. 59-60). He stated that his migraine headaches become so severe that he has to vomit and his tongue swells up. (Tr. 61). When he was asked how often he has migraine headaches, plaintiff said "all the time" and five or six days out of a week. (Tr. 61). Plaintiff also stated that it had been three or four months since the last "real bad one." (Tr. 61).
Plaintiff's mother testified that plaintiff slurs his speech, chops his words, limps, can't lift very much weight, forgets a lot, and has lost muscle tone on the right side. She also stated that he does little around the house other than feed his fish and take care of his son. (Tr. 65). She said there isn't much housework for plaintiff to do. (Tr. 66).
A vocational expert testified that plaintiff should be able to perform a full range of unskilled light and sedentary labor, such as a car wash attendant, a cafeteria attendant, a golf ball trimmer or a production inspector. He further testified that plaintiff's limitations in memory and concentration were too vaguely described to consider in the context of the vocational standards.
The ALJ concluded that medical evidence established that plaintiff has "cerebrovascular accident and dysthymia," which he considered to be severe impairments but not so severe as to meet or equal the criteria of impairments list in Appendix 1, Subpart P of the regulations. (Tr. 39). He determined that plaintiff's statements concerning his impairments and their impact on his functional capacity were not entirely credible "in light of the claimant's own description of [his] activities and life style and the findings made on examination." (Tr. 39). He found that plaintiff had the capacity to carry up to 20 pounds occasionally and up to 10 pounds frequently, as well as stand or walk for up to six hours of an eight-hour day. He further found that plaintiff retained the ability for simple unskilled work, in spite of "moderate limitations in understanding and memory and sustained concentration and persistence." (Tr. 39). Ultimately, the ALJ decided that while plaintiff could not return to work he previously performed, he could perform various types of light and sedentary unskilled jobs.
We review the record to determine if it contains substantial evidence to support the Commissioner's decision and if the correct legal standards were applied. See Kepler v. Chater, 68 F.3d 387, 388 (10th Cir. 1995). "Substantial evidence is adequate relevant evidence that a reasonable mind might accept to support a conclusion." Id. at 388-89.
Plaintiff's first argument is that substantial evidence does not support the decision of the ALJ as adopted by defendant. We disagree. We believe a reasonable mind would conclude from the record that plaintiff can perform substantial gainful activity. Plaintiff's treating physician described his limitations as "mild" and recommended vocational rehabilitation programs as well as reintegration into the work environment. The assessments performed by the treating physician as well as Drs. Perkins and Thompson, who were examining doctors, did not exclude plaintiff from performing a range of both sedentary and light employment. Plaintiff's problems with memory and concentration were evaluated and found not to be disabling by Dr. Mintz and Dr. Hough. Finally, plaintiff's problems with migraines appear to be controllable with medication. (Tr. 61 196).
Dr. Komes' assessment, as we read it, could be construed as limiting plaintiff to sedentary employment. Still, this does not preclude plaintiff from substantial gainful employment which exists in the economy.
Plaintiff's next contention is that the ALJ did not fully and fairly develop the record. The court disagrees. The ALJ and plaintiff's attorney asked questions which developed information regarding the nature of plaintiff's impairments, the extent of the impairments, and the mitigation of those impairments. While more questions could always be asked, the court believes the ALJ did an adequate job of developing the record. "Further, when the claimant is represented by counsel at the administrative hearing, the ALJ should ordinarily be entitled to rely on the claimant's counsel to structure and present claimant's case in a way that the claimant's claims are adequately explored."Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997).
Next, plaintiff contends that the ALJ did not consider the combination of plaintiff's impairments in determining whether plaintiff was disabled from substantial gainful employment. We reject this contention. The ALJ's discussion of the evidence considered all of plaintiff's alleged impairments. He determined that plaintiff could not return to his previous employment, but that light and sedentary unskilled employment was still within plaintiff's capability. There is nothing in the record which indicates to the court that the ALJ did not consider all of plaintiff's impairments in combination when he reached this conclusion.
Plaintiff further contends that the ALJ improperly rejected plaintiff's subjective complaints of pain. We disagree with this argument. The ALJ considered plaintiff's inconsistent work history, his failure to mention his alleged need to lie down to doctors, his treating physician's characterization of plaintiff's impairments as "mild," the mitigation of headache pain with medication, plaintiff's ability to drive, and the other medical documentation in the record. The ALJ also considered plaintiff's testimony that he had applied for many jobs. We disagree with the ALJ's reliance upon job applications to dispute credibility. See Cavitt v. Schweiker, 704 F.2d 1193, 1195 (10th Cir. 1983). However, we believe the other factors considered by the ALJ provide substantial evidence in support of the ALJ's credibility determination. Moreover, as counsel for defendant has noted, additional support for the credibility determination is provided by plaintiff's statements in his function report. (Tr. 167-68).
Next, plaintiff argues that the ALJ's decision should be reversed because the ALJ improperly rejected the opinions of plaintiff's treating physician. The ALJ did not adopt the conclusions shown on the medical source statement form which Dr. Komes filled out after examining plaintiff for the first time in a year in September 1997. The ALJ determined that the limitations listed on the form were not supported by the doctor's recorded findings or the findings of other doctors in the record. The court agrees with the ALJ on this point. But, even if Dr. Komes' conclusions were adopted, we do not believe this would qualify plaintiff for benefits. Dr. Komes stated that plaintiff's limitations were "mild" and his conclusions, in our opinion, do not exclude plaintiff from a variety of unskilled sedentary jobs. We acknowledge that the vocational expert in this case construed Dr. Komes' medical source statement as concluding that plaintiff could not lift any weight on a frequent or occasional basis and that the expert stated that plaintiff could not work under such limitations. (Tr. 69-70). However, we do not construe Dr. Komes' statement in the same fashion because the statement clearly indicates that plaintiff could lift up to 25 pounds occasionally and because, as mentioned many times before, Dr. Komes describes plaintiff's impairments as "mild." If Dr. Komes did mean to say that plaintiff could do no lifting whatsoever, then it is obvious that this conclusion is not supported in the medical record.
Plaintiff's next contention is that the ALJ erred in determining plaintiff's residual functional capacity because the ALJ relied too heavily upon the opinion of non-treating state agency doctors. The court believes the ALJ considered these doctors' opinions together with the rest of the medical record in determining plaintiff's functional capacity. That determination is supported by substantial evidence. Therefore, we reject plaintiff's argument.
Finally, plaintiff asserts that the ALJ should have determined that plaintiff was presumptively disabled under sections 1.05(C); 11.04(A)(B); and 12.07 of the Listing of Impairments. Appendix 1, Subpart P of 20 C.F.R. Part 404. Section 105(C) relates to "other vertebrogenic disorders." Although plaintiff was determined to have herniated disks, there is no significant evidence of muscle spasm or reflex loss. Evidence of spasm and reflex loss is necessary to satisfy the listing under section 1.05(C). In addition, the evidence of pain — another requirement under Section 1.05(C) — was unconvincing to the ALJ. Accordingly, plaintiff was not presumptively disabled because of a vertebrogenic disorder.
Section 11.04(A)(B) concerns central nervous system vascular accident. Here, the evidence does not support a finding of "ineffective speech or communication" or "significant and persistent disorganization of motor function in two extremities" as required under the section. Plaintiff was determined to have impairments in speech and in his gait. But, the impairments were not so significant as to render his speech ineffective or to amount to "significant and persistent disorganization in two extremities."
Lastly, section 12.07 concerns somatoform disorders. Plaintiff contends that he is presumptively disabled under this section because of: slurred speech; deficiencies in concentration; restrictions in daily activities and social functioning; "nonorganic" disturbance of his right upper and lower extremities; and symptoms associated with dysthymia. We disagree with plaintiff's contention because there is no substantial evidence to support a "nonorganic" cause of significant, marked or persistent restrictions in the functions listed in section 12.07.
In conclusion, a reasonable person could find that substantial evidence supports the defendant's decision that plaintiff's functional limitations, individually and in combination, do not disable him from light and sedentary jobs which exist in significant numbers in the economy. Therefore, the court shall affirm the decision of defendant to deny plaintiff's applications for benefits.
IT IS SO ORDERED.