Opinion
No. 03-2015-GTV
August 11, 2003
MEMORANDUM AND ORDER
Plaintiff Pauletta Bolden brings this action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3) and D. Kan. Rule 83.7, seeking judicial review of the decision of the Commissioner of Social Security ("Commissioner") to deny her applications for a period of disability, disability insurance benefits, and supplemental security income benefits under Titles II and XVI of the Social Security Act. Plaintiff claims that she is impaired by constant, sharp lower-back and leg pain, as well as joint pain. She has a high school education and her past work experience includes employment in a customer service position, as a dispatcher, as a clerical worker, and as a cashier.
Plaintiff contends that the Commissioner made the following errors: (1) substituted his own opinion for that of the treating physician; (2) failed to consider Plaintiffs obesity as a severe impairment; and (3) asked the vocational expert inadequate hypothetical questions. For the reasons set forth below, the court affirms the Commissioner's decision.
I. Procedural Background
On September 19, 2000, Plaintiff filed applications for a period of disability, disability insurance benefits, and supplemental security income benefits, alleging that she became disabled on August 1, 1993. The applications were denied both initially and upon reconsideration. At Plaintiffs request, an administrative law judge ("ALJ") held a hearing on April 18, 2002, at which Plaintiff and her counsel were present. On September 19, 2002, the ALJ rendered a decision in which he determined that Plaintiff was not under a "disability" as defined by the Social Security Act. After the ALJ's unfavorable decision, Plaintiff requested review by the Appeals Council. The Appeals Council denied Plaintiffs request for review on November 15, 2002, rendering the ALJ's decision the final decision of the Commissioner.II. Standard of Review
The Commissioner's findings are binding on this court if supported by substantial evidence. 42 U.S.C. § 405(g); Dixon v. Heckler, 811 F.2d 506, 508 (10th Cir. 1987). The court's review is limited to determining whether the Commissioner's decision is supported by substantial evidence in the record and whether the Commissioner properly applied relevant legal standards. Marshall v. Chater, 75 F.3d 1421, 1425 (10th Cir. 1996) (citing Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994)). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Castellano, 26 F.3d at 1028 (citations and internal quotation marks omitted). The court may not reweigh the evidence or substitute its judgment for that of the ALJ or the Commissioner.Hamilton v. Sec'y of Health Human Servs., 961 F.2d 1495, 1500 (10th Cir. 1992).
III. The ALJ's Findings
1. The claimant met the earnings requirements of the Act on August 1, 1993 and continued to meet them through the date of this decision.
2. The claimant has not engaged in substantial gainful activity since August 1, 1993.
3. The medical evidence establishes that the claimant has the following severe impairments: a L5-S1 posterior central disc protrusion with associated posterior osteophyte formation and mild thecal sac narrowing, early bilateral median nerve compression neuropathy of the anterior aspect of the wrist, polyarthralgia without synovitis, osteoarthritis of the hips and knees, mild myopathy, bilateral trochanteric bursitis, moderate microcytic anemia and mild thrombocytosis that has resolved. Nevertheless, she does not have an impairment or combination of impairments listed in, or medically equal to one listed in 20 C.F.R. Part 404, Appendix 1, Subpart P.
4. The claimant's testimony is not found credible when considered in light of the medical signs and findings, history of medical treatment, reports of treating and examining physicians and the inconsistencies in the claimant's testimony, all of which is discussed more fully in the Rationale section of this decision.
5. The claimant [has] the residual functional capacity to perform work-related activities except for lifting or carrying more than ten pounds maximum occasionally and five pounds frequently, using her hands repetitively and would require a sit/stand option in competitive employment ( 20 C.F.R. § 404.1545 and 416.945).
6. The claimant is unable to perform her past relevant work.
7. The claimant is a younger individual ( 20 C.F.R. § 404.1563 and 416.963) and has a high school education ( 20 C.F.R. § 404.1564 and 416.964).
8. The claimant has no acquired work skills that are transferable to semi-skilled or skilled work functions of other work within her residual functional capacity ( 20 C.F.R. § 404.1568 and 426.968).
9. After considering the claimant's above described residual functional capacity for a range of work and age, education and past relevant work, the undersigned Administrative Law Judge is persuaded that the claimant would be able to make a vocational adjustment to work which exists in significant numbers in the local and national economies.
10. The claimant has not been under a "disability," as defined in the Social Security Act, as amended, since August 1, 1993 and through the date of this decision ( 20 C.F.R. § 404.1520(f) and 416.920(f)).
IV. Discussion A. Treating Physician's Opinion
Plaintiff first claims that the ALJ substituted his own opinion for the opinion of Plaintiffs treating physician, Dr. Reginald Hall. The court disagrees."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." Walker v. Apfel No. 97-1189-MLB, 1998 WL 928672, at *4 (D. Kan. Sept. 18, 1998) (citing Castellano 26 F.3d at 1029). If a treating physician's opinion is inconsistent with other evidence, the ALJ must determine whether the other evidence outweighs the treating physician's opinion. Goatcher v. United States Dep't of Health Human Servs., 52 F.3d 288, 290 (10th Cir. 1995). In weighing any medical opinion, the ALJ must consider several factors, including the amount of relevant evidence supporting the physician's opinion and how consistent that opinion is with the rest of the record. 20 C.F.R. § 404.1527(d)(2)-(6) (listing additional factors). The ALJ cannot disregard a treating physician's opinion that a claimant is disabled without giving legitimate and specific reasons. Goatcher 52 F.3d at 290 (citing Frey v. Bowen 816 F.2d 508, 513 (10th Cir. 1987)). But the ultimate responsibility for determining whether a claimant is disabled is reserved for the ALJ, not the treating physician. Castellano 26 F.3d at 1029 (citations omitted).
In the instant case, Plaintiff had multiple treating physicians. Dr. Hall, an internist, opined on April 7, 2002, that Plaintiffs chronic pain from her lumbar disk disease was disabling. The ALJ determined that Dr. Hall's opinion was outweighed by other evidence in the record — and, in closely-connected analysis, that Plaintiffs allegations of disabling pain were not credible — for several reasons, which can generally be classified as follows: (1) Dr. Hall failed to cite specific signs and findings in support of his conclusion; (2) his opinion was inconsistent with another physician's recommendations that Plaintiff try exercise as therapy; (3) Plaintiffs medical records did not indicate that her condition was disabling; (4) Plaintiff was not always compliant in taking medication or participating in recommended therapy; (5) Plaintiffs claims were inconsistent with her earnings records and her daily activities; (6) Plaintiff sought little treatment between 1993 and January 2001; and (7) Plaintiffs treatment was conservative. The ALJ cited the first four reasons specifically within his rejection of Dr. Hall's statement, and discussed the last three in a more general discussion of Plaintiffs credibility. The court concludes that substantial evidence supports the ALJ's decision.
First, the ALJ stated that Dr. Hall's opinion that Plaintiff was disabled was conclusory. Upon reviewing the record, the court notes that Dr. Hall did explain Plaintiffs history of chronic low back pain and that a CT scan on December 8, 2000 had revealed posterior central disk protrusion with associated posterior osteophyte formation, narrowing of the thecal sac, and nerve root compression without nerve displacement. But he did not explain what activities Plaintiffs condition prevented her from doing. He did not specify any exertional limitations or explain specifically why he deemed Plaintiff unable to work. "[A] treating physician's opinion might be rejected if it is brief, conclusory, and unsupported by medical evidence. . . ." Frey 816 F.2d at 513 (citation omitted). The court concludes that the ALJ did not err in finding that Dr. Hall's statement was conclusory. Moreover, the court notes that Dr. Hall did not specify how long he thought Plaintiff had been disabled. Plaintiff claims that she was disabled from August 1, 1993 through the date of the ALJ's decision. The court is reluctant to retroactively apply Dr. Hall's statement to Plaintiffs condition as early as 1993, particularly when the record is virtually devoid of medical evidence for the time between 1993 and 2000.
Second, Dr. Hall's opinion was inconsistent with another treating physician's recommended therapy. In March 2001, Dr. Hall had referred Plaintiff to Dr. S.R. Reddy Katta, a physician with the Orthopaedic Professional Association who specialized in physical medicine and rehabilitation and electrodiagnostic medicine, for her back pain. She visited both physicians regularly from March 2001 through the end of 2001. Dr. Katta repeatedly told Plaintiff that she needed to begin a walking program, or at least a water aerobics program, a suggestion that was inconsistent with Dr. Hall's opinion that Plaintiff was incapable of working.
Third, the ALJ observed that Plaintiffs objective medical records did not indicate that her condition was disabling. Specifically, he noted that Dr. Hall's opinion was inconsistent with the results of a March 6, 2001 diagnostic test. As a result of that test, Dr. Katta determined that there was no clinical evidence of lumbar radiculopathy and noted that Plaintiff "remaine[ed] independent with mobility and self-care tasks," an observation he made again in April, June, and September 2001. Furthermore, an x-ray taken June 30, 2000 showed a central disk protrusion at L5-S1, but no definite neural compression or displacement. On October 5, 2000, Dr. Robert Beatty noted that an MRI showed a degenerated L5-S1 disk with a "very small protrusion." Later tests showed that Plaintiff had central disk protrusion touching the S1 nerve roots, but it did not appear to be "significantly displacing" the nerve roots. Plaintiff has not undergone surgery on her back and no surgery has been recommended. These observations are merely a sampling of the medical record, but are representative of the evidence before the ALJ. While the record does contain evidence that Plaintiff suffered from a severe impairment or combination of impairments, the objective medical findings do not support her allegations of total disability.
Fourth, the ALJ observed that Plaintiff was not always compliant in taking her medication and did not appear to participate in the therapy recommended by Dr. Katta. Levels of medication and the extent of attempts to obtain relief are both valid considerations in evaluating a claimant's subjective complaints of disabling pain. Huston v. Bowea 838 F.2d 1125, 1132 (10th Cir. 1988); Reece v. Apfel 92 F. Supp.2d 1174, 1181 (D. Kan. 2000) (citing Noble v. Callahan 978 F. Supp. 980, 985-86 (D. Kan. 1997)) ("The fact that plaintiff took over the counter medication rather than prescription medication to deal with her pain supports the ALJ's decision that her pain was not disabling."). Plaintiff claims that she took medication when financially able and points to her testimony that she did undergo physical therapy in 2000, when she had insurance. The ALJ found Plaintiffs testimony to be not credible. Because the ALJ is "`optimally positioned to observe and assess witness credibility,'" Adams v. Chater 93 F.3d 712, 715 (10th Cir. 1996) (quoting Casias v. Sec'v of Health Human Servs., 933 F.2d 799, 801 (10th Cir. 1991)), the court "may overturn such a credibility determination only when there is a conspicuous absence of credible evidence to support it," Patterson v. Apfel 62 F. Supp.2d 1212, 1217 (D. Kan. 1999) (citing Trimiar v. Sullivan 966 F.2d 1326, 1329 (10th Cir. 1992)). Credibility determinations made by the ALJ are generally treated as binding upon review. Talley v. Sullivan 908 F.2d 585, 587 (10th Cir. 1990). There are numerous references in the record to Plaintiffs failure to take recommended or prescribed medication, even when Dr. Hall appeared to be giving her free samples. Because the ALJ adequately supported his credibility determination and linked it to findings of fact "fairly derived from the record," the court accepts the ALJ's credibility findings. White v. Barnhart 287 F.3d 903, 910 (10th Cir. 2001).
While evaluating Plaintiffs credibility, the ALJ noted that Plaintiff had earnings suggestive of substantial gainful activity in the years 1994 through 2000 (earning between $7,000 and $13,000 each year). Even though the ALJ did not deny Plaintiff benefits solely on this basis, the ALJ properly considered Plaintiffs apparent ability to work during those time periods. Evidence that a claimant was employed during a period of alleged disability is probative of his or her ability to work. Williams v. Chater 923 F. Supp. 1373, 1379 (D. Kan. 1996) (citing 20 C.F.R. § 404.1571, 416.971). The ALJ also found Plaintiffs self-reported activities of daily living, such as taking care of her personal needs, going out to eat or to the movies once every three or four months, and watching television, to be inconsistent with a finding of "disabled." The court also notes that in the hearing before the ALJ, Plaintiff testified that she did light chores around the house, such as cooking, washing dishes, and grocery shopping, but that she did not clean toilets, the bathtubs, or the floor.
The ALJ also observed that Plaintiff sought little treatment between 1993 and January 2001. The court further notes that much of the medical record in this case consists of records from the 1980's not pertaining to Plaintiffs back pain. Based on the medical records before him, the ALJ had very little information about Plaintiffs condition between 1993 and 2000, a time period that is included in Plaintiffs claim for benefits.
Finally, the ALJ noted that Plaintiffs physicians treated her conservatively, suggesting application of moist heat on her back, stretching exercises, trigger point massage, and exercising in a walking program or water aerobics. Minimal or conservative medical treatment may indicate that a claimant's pain is not disabling. Wiley v. Chater 967 F. Supp. 446, 451 (D. Kan. 1997).
The court has independently reviewed the record and concludes that substantial evidence supports the ALJ's determination that Dr. Hall's opinion was outweighed by other evidence in the record. Moreover, the ALJ adequately explained and supported his decision to discount the opinion of Dr. Hall. To the extent that Plaintiff has challenged the ALJ's credibility findings, the court also finds that they are supported by substantial evidence. The court affirms the ALJ's decision on such bases.
B. Failure to Consider Plaintiffs Obesity
Plaintiff next claims that the ALJ failed to address whether Plaintiffs obesity constituted a severe impairment, as required by Social Security Ruling 02-Ip. In her brief, Plaintiff asserts that her size "[a]rguably . . . impacted and exacerbated her lower back, leg and joint pain. It is also likely that her weight contributed to her functional limitations." At the time of the hearing, Plaintiff was 5 feet 4 inches tall and weighed 216 pounds.
The court has been unable to find in the record where Plaintiff has previously claimed that her obesity was an impairment. She presented no objective medical evidence regarding the effect of her alleged obesity on her ability to engage in work activities. The only references to Plaintiffs weight in the record are a few stray remarks by physicians noting her weight or her overweight appearance and one comment by Dr. Kamran Riaz, a consulting physician, that "[w]eight loss may be helpful." None of Plaintiffs treating physicians recommended that she lose weight to alleviate her back pain or commented on the effect of her weight on her medical condition.
Because Plaintiff never raised obesity as an impairment and because the record does not support a finding that Plaintiffs weight, combined with her other impairments, rendered her disabled, the court declines to reverse the ALJ's decision based on his failure to address Plaintiffs obesity.
C. Inadequate Hypothetical
Finally, Plaintiff claims that the ALJ neglected to address her fatigue, severe pain, and obesity in his hypothetical questions to the vocational expert. In crafting a hypothetical question, the ALJ may only rely on those limitations supported by substantial evidence in the record. Pattersoa 62 F. Supp.2d at 1218 (citing Tallev 908 F.2d at 588). "Without question, the ALJ may restrict the questions to those limitations which he has found to be based upon credible evidence." Gav v. Sullivan 986 F.2d 1336, 1341 (10th Cir. 1993). However, a hypothetical question must relate with precision all of a claimant's impairments.Hargis v. Sullivan 945 F.2d 1482, 1492 (10th Cir. 1991). If impairments are omitted or misrepresented, testimony elicited as a result of the hypothetical question cannot constitute substantial evidence. Id (quotation omitted).
Here, the ALJ relayed all of the restrictions he found credible to the vocational expert. The court has already determined that the ALJ's findings are supported by the record, and further determines that his questions to the vocational expert were appropriate based on those findings.
IT IS, THEREFORE, BY THE COURT ORDERED that the decision of the Commissioner is affirmed.
The case is closed.
Copies or notice of this order shall be transmitted to counsel of record.
IT IS SO ORDERED.