Opinion
Civil Action No. 00-0110-AH-L
March 8, 2001
REPORT AND RECOMMENDATION
Plaintiff brings this action under 42 U.S.C. § 405 (g) seeking judicial review of a final decision of the Commissioner of Social Security denying his claim for Social Security disability insurance benefits and Supplemental Security Income disability benefits.
This action was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B). Oral argument was held on November 20, 2000. Upon consideration of the administrative record, oral argument and the memoranda of the parties, it is recommended that the decision of the Commissioner be affirmed.
I. Issues on Appeal
The plaintiff presents the following issues on appeal:
1. The Administrative Law Judge committed reversible error by not finding the plaintiff disabled under Rule 201.14 of the Medical-Vocational Guidelines.
2. The Administrative Law Judge committed reversible error by failing to assign full weight to and follow the opinion of the plaintiffs treating physician Dr. Curtis Harris, MD pursuant to Social Security Ruling 96-2p.
3. The Administrative Law Judge committed reversible error in finding plaintiffs testimony not credible because it was not supported by objective medical evidence and the opinions of his treating physician.II. Background Facts
Plaintiff was born February 26, 1948, and was 50 years old, an individual closely approaching advanced age, at the time of the administrative hearing (Tr. 44). Plaintiff completed high school and has worked as a welder (Tr. 44-45, 131). He testified that he last worked in January 1997 (Tr. 45). Plaintiff alleged he became disabled on January 28, 1997, due to carpal tunnel syndrome, high blood pressure, knee and back pain, hearing loss and loss of strength in his arms and hands (Tr. 47-53, 79, 127-132).
At the hearing plaintiff testified regarding his disability as follows: He can not use his arms and hands for lifting or gripping because of numbness in both caused by carpal tunnel syndrome. He wears wrist braces at night and takes medication for his carpal tunnel syndrome and to help him sleep, however, numbness wakes him, thus, he can not get enough sleep. Carpal tunnel surgery has been performed on his left hand but not his right. Moreover, the degenerative disc disease in his spine causes numbness in his legs and prevents him from walking farther than seventy-five to one hundred yards before his back will tighten and he becomes short-winded. He cannot bend straight down; he must kick his leg back to bend down. His knees hurt, pop and swell and he must elevate his knees on a pillow. He can stand for only thirty minutes and sit for only forty-five minutes. He also takes medication for the pain and swelling in his knees, high blood pressure and irregular heartbeat. (Tr. 46-52).
Plaintiff filed an application for disability insurance benefits and supplemental security income on December 9, 1997 (Tr. 55-57, 93-94). These applications were denied initially and upon reconsideration (Tr. 70-75, 96-101). Plaintiff appealed the reconsideration denial, and on August 25, 1998, a hearing was held before an administrative law judge (ALJ) (Tr. 41-54). On January 28, 1999, the ALJ issued a decision finding plaintiff not disabled and, therefore, not entitled to Social Security benefits (Tr. 13-27). The Appeals Council (AC) denied review on February 3, 2000, and the ALJ's decision became the final decision of the Commissioner (Tr. 5-6).
III. ALJ Findings
The ALJ found, in pertinent part, as follows: (Tr. 26).
1) The medical evidence establishes that the claimant has severe carpal tunnel syndrome and mild degenerative joint disease of the knees, but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
2) The claimant is unable to perform his past relevant work as a welder or shipfitter.
3) The claimant is 50 years old, which is defined as closely approaching advanced age ( 20 C.F.R. § 404.1563 and § 416.963).
4) The claimant has more than a high school education ( 20 C.F.R. § 404.1564 and § 416.964).
5) In light of the claimant's age and residual functional capacity, the issue of transferability of work skills is not material.
6) The ALJ found plaintiffs subjective complaints of pain and loss of strength were not fully credible at the level alleged and were not consistent with the objective evidence (Tr. 26, Finding 4).
7) The ALJ concluded plaintiff retained the residual functional capacity to perform the full range of light work (Tr. 27, Finding 7).
Upon consideration of plaintiffs residual functional capacity for the full range of light work, age, and education, the ALJ found him not disabled as defined in the Act pursuant to the Medical Vocational Guidelines (Tr. 27, Finding 11).
IV. Medical Evidence
On January 28, 1994, plaintiff was treated at the University of South Alabama Medical Center emergency room for lower back and leg pain from a work-related injury. His lumbar spine was x-rayed. He was then diagnosed with low back strain and medications were prescribed. Follow-up was scheduled at Stanton Road Clinic for vascular studies for lower leg pain (Tr. 154-158).
On February 8, 1994, plaintiff was examined at the Stanton Road Clinic for possible vascular surgery. However, the examiner noted no vascular problems and that his pain was not due to a vascular insufficiency (Tr. 222). From December 20, 1991 through May 9, 1997, plaintiff was treated at the Stanton Road Clinic for various health problems not related to his alleged disabling conditions (Tr. 213-223)
On March 17, 1994, plaintiff was examined by Dr. Robert J. Zarzour, orthopaedic physician. He had previously seen Dr. Zarzour in 1987 for lumbo-sacral strain. He complained of continued back pain from the injury of January 1994. Dr. Zarzour determined that plaintiffs x-rays showed no significant arthritic changes and diagnosed low back strain with hamstring tightness. He recommended physical therapy and medications. Dr. Zarzour stated that with "proper therapy and motivation he should be able to return to his regular work in one to two months." He recommended light duty until that time, without bending or lifting more than twenty pounds, no climbing or working at unprotected heights. (Tr. 177-176). On April 8, 1994, plaintiff returned and was given medication but his insurance did not approve therapy with Dr. Zarzour at that time. (Tr. 174-175).
A lumbar CT scan performed on August 26, 1987 revealed a slight central bulging of the annulus fibrosis at L4-5. No herniated disc. The vertebral joints were normal. (Tr. 179).
On May 17, 1994, plaintiff was seen by Dr. William A. Crotwell, orthopaedic physician. On examination, the doctor noted no evidence of any permanent impairment or restrictions, and stated that plaintiff could return to his previous occupation. He noted that the x-rays from January showed a normal lumbar spine with minimal disc space collapse at L5-S1 and some mild arthritic changes. He noted a "history of lumbosacral strain, healed." Dr. Crotwell stated that plaintiff was "worked up for a blood clot in the leg" at Stanton Road Clinic and that he was referred to Dr. Zarzour on March 17, 1994, who recommended physical therapy and medication. Dr. Crotwell also noted that plaintiff "states his knee and leg are not bothering him now. It's mainly across the back with radiation into the hips but with tightness." (Tr. 158-159).
On July 11, 1994, plaintiff saw Dr. Zarzour with complaints of pain in his back and down his legs. He was given pain medication (Tr. 175). On July 15, 1994, an MRI revealed "narrowing of L5-S1 disc space with mild disc bulge. No evidence of nerve root or thecal sac compression and `mild disc bulge at L4-L5 level, no evidence of compression of nerve root or thecal sac, slight narrowing of nerve root foramen are present at this level" (Tr. 174). On July 25, 1994, Dr. Zarzour explained the MRI to plaintiff, told him that no herniations were seen and that he would have to "live with his condition." Dr. Zarzour also stated that "[a]s soon as he is feeling better we are going to send him back to work as a welder." On August 22, 1994, he advised plaintiff that no type of surgery was indicated, they would "wait a little longer" and "send him back to work when they can." Dr. Zarzour found plaintiffs legs were "neurologically intact" (Tr. 172). Medications were prescribed on August 29, 1994 and October 10, 1994 (Tr. 173-172).
On October 17, 1994, plaintiff discussed work hardening with Dr. Zarzour. However, it was not approved by his insurer until December 1994. At his last visit on February 2, 1995, plaintiff stated that he still was not able to do all of the work hardening because of problems. Dr. Zarzour noted that he was sending plaintiff back to work on February 16, 1995 (Tr. 171). On May 25, 1995, plaintiff still complained of chronic back pain since his injury. Medications were prescribed and he was told to return as needed (Tr. 170).
From July through October 1994, plaintiff received physical therapy, heat, ultrasound and massage three times per week at Dr. Zarzour's office. (Tr. 181-187) There are several therapist's notations of plaintiffs non-compliance with the exercise and therapy program. On September 7, 1994, the therapist noted that "he was not doing his exercises and he had not been doing them at home and he seems to be getting tighter and is actually more tender to gentle palpation today. We asked him to do a few exercises here and he is only able to do a very few of them further indicating that he has not been doing them appropriately. We have talked and discussed this with him today." (Tr. 184). On September 8, 1994, it was noted that he "refuses to do the exercises for us while he is here." (Tr. 183). On September 12, 1994, it was noted that he did try his exercises and stated that he refused to do them in the past because he was sore (Tr. 183). Frequently, plaintiff stated that he was feeling about the same, that he was not getting better and that he would just have to learn to live with the back pain. He also stated that he often felt good after therapy but it wore off (Tr. 182). On October 21, 1994, plaintiff stated that he was "barely able to walk, even around the block" and he had increased pain (Tr. 181).
In December 1994, a work capacities assessment was performed on plaintiff at Healthsouth wherein it was recommended that he participate in a three-week long progressive daily work hardening program with the goal of return to work. Plaintiff showed less than full effort on two of four screening tests. (Tr. 160-163).
On February 7, 1995, Dr. Zarzour noted plaintiff still had "some back pain" and that he could not complete the work hardening program because of "problems of milage, money, etc." He was released to return to work on February 16, 1995 (Tr. 171). The next notation from Dr. Zarzour is dated May 26, 1995. Dr. Zarzour prescribed medications and noted that plaintiff related that he had chronic pain since his injury (Tr. 170).
There are no medical records in regard to plaintiffs alleged disabling conditions until December 1996. On December 10, 1996, plaintiff was seen by Dr. Raymond Broughton at the Mostellar Clinic. Plaintiff complained of numbness in the tips of his fingers in both hands which had been present for several weeks. Dr. Broughton noted his impression of hypertension, "numbness of the hands and fingers of undetermined etiology," and "obesity". He prescribed medication, performed a blood test and prostate specific antigen (PSA) test and advised plaintiff to return for a re-check in three to four weeks or earlier if his conditions worsened (Tr. 228).
On January 4, 1997, plaintiff was treated at USA Medical Center emergency room for complaints of burning pain, swelling and popping in the right knee. The examiner noted no joint instability and that plaintiff was able to stand and walk. The examiner noted plaintiff's statements that he worked on his knees all day long. He was diagnosed with osteoarthritis and medications, Prednisone and Ultram, were prescribed. He was told to elevate the leg as needed and to follow up with Dr. Broughton (Tr. 164-167). The x-ray of his knee showed no bone or joint abnormalities and the radiologist noted his impression as "normal right knee examination." (Tr. 167). Plaintiff saw Dr. Broughton on January 6, 1997 and was released to return to work on January 7, 1997 (Tr. 227).
On January 16, 1997, on examination, Dr. Broughton found no abnormalities of the knees. He noted "full range of motion of both knees without crepitus" and no "ligamentous laxity." He noted the normal x-ray exam from the emergency room on January 4, 1997. He stated "[o]n exam today, I find no abnormalities of this knee exam." Dr. Broughton also examined plaintiffs hands on complaint of numbness related to machinery used at work. Plaintiff was referred to Stanton Road Clinic (Tr. 225).
On January 30, 1997, Dr. Zarzour diagnosed plaintiff with bilateral carpal tunnel syndrome. Dr. Zarzour noted that plaintiff could make a fist, straighten his fingers and spread them apart, and touch his thumbs to his little fingers. He noted good thenar strength but the Phalen maneuver was positive. He prescribed a nerve conduction study on both upper extremities; however, plaintiffs insurance would not cover the study (Tr. 169).
On March 20, 1997, on referral from the Mostellar Clinic, plaintiff presented to the Stanton Road Clinic with complaints of numbness in both hands which wakes him at night. He reported constant numbness which was worse with welding, some improvement of symptoms with the use of wrist splints, and no relief with Elavil. Plaintiff denied weakness, but stated that he used his hands as little as possible. His thumbs and fingers two through four were affected. On neurological examination, plaintiff was normal in all extremities but for decreased pain perception and light touch, positive Tinel's sign and positive Phalen's sign, in both hands (Tr. 217). On March 27, 1997, nerve conduction studies confirmed bilateral carpal tunnel syndrome (Tr. 216).
A tingling sensation felt in the distal portion of a limb upon percussion of the skin over a regenerating nerve in the limb. Named for Jules Tinel (1879-1952), French neurologist. MERRIAM-WEBSTER'S MEDICAL DESK DICTIONARY (1996).
The reproduction of the symptoms of carpal tunnel syndrome by hyperflexing the wrist. UNITED STATES NAVAL FLIGHT SURGEON'S MANUAL, CH. SEVEN: NEUROLOGY (3rd ed. 1991).
On April 29, 1997, Dr. Curtis N. Harris, plastic and reconstructive surgeon, performed a carpal tunnel release operation on plaintiffs left hand (Tr. 191-212). Dr. Harris noted "excellent release of the nerve both proximally and distally." (Tr. 191). On December 15, 1997, Dr. Harris performed an evaluation of plaintiff; the first since the carpal tunnel release in April of 1997 (Tr. 251). Dr. Harris noted that plaintiff complained of pain in the proximal interphalangeal (PIP) joints of both hands and a snapping in his thumb on the left hand. Dr. Harris noted that "[t]here does not seem to be anything obvious. I am not finding the clicking. It is on the dorsal surface not the volar surface." (Tr. 251). He prescribed medication and noted that plaintiffs carpal tunnel syndrome still existed in the right hand (Tr. 251). There are no further records of medical examinations by Dr. Harris.
Proximal interphalangeal joints are commonly referred to as the first knuckle.
On January 29, 1998, plaintiff was consultatively examined by John W. Lowery, M.D. (Tr. 234-247). Plaintiff reported a history of bilateral carpal tunnel syndrome in his hands which resulted in pain, numbness, and inability to hold objects well; high blood pressure controlled fairly well with medication; lumbar back pain, and pain in both knees. A pulmonary function test was performed which indicated moderate obstruction. On examination, Dr. Lowery noted as follows:
Plaintiff has stated that he smoked one pack of cigarettes per day and began smoking at age 13 or 14. (Tr. 228). He tested positive for pulmonary asbestosis (Tr. 145).
He opposes his thumb and the remaining fingers. Negative straight leg raising sign bilaterally. Flexes and extends his knees well. He flexes and extends his fingers well. . . . Both knees show some mild crepitation, no swelling. They are tender with good range of motion. . . . He is right-handed. His strength is 5/5 in his hands. Grasp: He holds his arms in space and doesn't push down and had passive pressure. It is difficult to adequately evaluate his upper extremities strength, but he is very muscular as he is in the lower extremities as well. Gait: Normal. He walks without a cane or a walking device. He has no limp. He is able to walk on heels, toes, and squat about a forth of the way and arise. He flexes his back normally 90 degrees AP and 20 degrees laterally. Back shows some rather moderate tenderness in his lumbar area.
(Tr. 235).
On February 3, 1998, a functional capacities evaluation was prepared by Gulf Coast Therapy (Tr. 263-272). On musculoskeletal evaluation, the examiner noted decreased light touch sensation in both hands in the median distribution, normal range of motion, minimal edema and no atrophy in either upper extremity. His pain scale was seven out often, before and after testing. Plaintiff attempted most tests; however, he did not attempt any test which involved crawling, climbing, crouching, or kneeling, because of knee pain. The examiner noted no difficulty in standing for an hour or sitting. The examiner noted her assessment as follows:
Mr. Casher demonstrates a significant limitation in grip strength and work tolerances related to his bilateral CTS. He also has limitation in work capacity due to bilateral knee pain. There is no clean diagnosis on this knee problem. He is not currently under a physician's care for this. Right grip is 84% less than the Norm. Left grip is 98% less. Right pinch strength are 70 to 85% less than Norm and left pinch strengths are 89 to 92 % less than Norm. There were inconsistencies in (L) strength testing. Lifting, carrying and push/pull capacity is limited to 10 lbs due to hand pain and knee pain. Client is unable to assume crawling, crouching, or kneeling positions due to knee pain. The client demonstrates the ability to perform in the sedentary category of work.
(Tr. 267). On the grip strength test with the Jamar Dynamometer, the therapist noted "[t]he three trials should be consistent and stable if maximum effort is being exerted. Coefficient of variance on (L) was very high. The client's demonstrated grip strength is extremely limited in relation to bulky forearms." (Tr. 264) In regard to the BIB maximum effort evaluation, the therapist noted
[t]he client was formally evaluated on the BTE work simulator to test for consistency of response. This test is based on the assumption that repetitive trials within a brief span of time will be stable. The statistical measurement of stability that is used is the coefficient of variance. Client was presented with 5 tasks, three trials of each task. The coefficient of variance was calculated for each of the tasks. If the client produces a significant number of coefficients of variance over 15%, this may indicate the client is giving less than maximum effort. . . . Three coefficients of variance are more than 15% which may indicate questionable cooperation. Left grip on the BTE is inconsistent with grip on the Jamar.
(Tr. 265).
On February 20, 1998, James Douglas Miller, a licensed professional counselor, was deposed in plaintiff's worker's compensation case (Tr. 273-315). Mr. Miller testified that he met with plaintiff, reviewed the functional capacities evaluation of Gulf Coast Therapy, administered additional testing and determined that plaintiff was unemployable and functionally illiterate.
On March 16, 1998, Dr. Harris completed a questionnaire provided by plaintiffs counsel. On the questionnaire, Dr. Harris noted that plaintiff had carpal tunnel syndrome for at least one year, that it affected his right hand but not his left, that plaintiff had pain and numbness, that it would affect his ability to lift and carry objects, but the weight plaintiff could lift or carry was unknown. (Tr. 249). Dr. Harris noted that plaintiff could use both hands for simple grasping, pushing and pulling of arm controls, and reaching. He could use his left hand for fine manipulation and crawling, but not his right hand. He could not use either hand for climbing. Plaintiff was restricted from unprotected heights and moving machinery, but he was unrestricted in regard to marked changes in temperature and humidity, driving an automobile, and exposure to dust, gases and fumes. He indicated that the condition could be expected to last at least twelve months. He did not answer the question in regard to plaintiffs abilities over a forty hour work week. Instead, he marked the question "N/A."(Tr. 249-250). There are no treatment notes for this date.
On March 24, 1998, in a letter from Dr. Harris to plaintiffs counsel, Dr. Harris states that he first saw the plaintiff April 29, 1997 and did not see him again until December 15, 1997. Dr. Harris referenced the results of nerve conduction studies from March 1997 and the functional capacity evaluation performed February 3, 1998. He also referenced limitations in regard to plaintiffs knees. Dr. Harris then stated that
[f]rom these studies, it is clear that [plaintiff] is unlikely to be able to spend 40 hours a week on his feet at least. It is also clear that the carpal tunnel syndrome is not the only basis of his apparent disabilities. Whether or not this other situation has been addressed, I do not know. In any event, he needs carpal tunnel release on the un-operated side. He has had this disease for such a long period of time, that full recovery probably could not be expected even with that release.
(Doc. 248). There are no treatment notes for this date.
On April 16, 1998, plaintiff was seen at the Franklin Memorial Primary Health Center with complaints of pain in the back of his neck, knees "giving out" and stress. The assessment was hypertension and "anxiety/depression" and medications were prescribed (Tr. 316-317).
On April 27, 1998, Plaintiff was seen again by Dr. Broughton with complaints of knee pain with difficulty walking, and numbness in his right hand. Dr. Broughton noted that plaintiff had not been in since January 16, 1997. He noted plaintiffs statement that "he has undergone carpal tunnel release on the left side with resolution of his pain." (Tr. 319). On knee examination, the doctor noted "[h]e had a slight crepitus to range of motion in both knees, but no effusion was appreciated." He also noted that knee x-rays, both AP (anterior to posterior) and lateral showed "mild degenerative changes." He diagnosed "mild DJD (degenerative joint disease) of the knees" and "hypertension, B[lood] P[ressure] well controlled." (Tr. 319-321).
V. Discussion A. Standard of Review
In reviewing claims brought under the Act, this Court's role is a limited one. The Court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986). The Commissioner's findings of fact must be affirmed if they are based upon substantial evidence. Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991), citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is defined as "more than a scintilla but less than a preponderance," and consists of "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 390, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Bloodsworth, 703 F.2d at 1239. The Secretary's decision must be affirmed if it is supported by substantial evidence even when a court finds that the preponderance of the evidence is against the decision of the Secretary. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (1971); Bloodsworth, 703 F.2d at 1239. "In determining whether substantial evidence exists, we must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Further, it has been held that the Commissioner's "failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal." Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991). This Court's review of the Commissioner's application of legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
B. Statement of the Law
An individual who applies for Social Security disability benefits or supplemental security income must prove their disability. See 20 C.F.R. § 404.1512; 20 C.F.R. § 416.912. Disability is defined as the "inability to do 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); 20 C.F.R. § 404.1505 (a) (1992); 20 C.F.R. § 416.905 (a) (1991). The Social Security regulations provide a five-step sequential evaluation process for determining if a claimant has proven their disability. See 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. At the first step, the claimant must prove that he or she has not engaged in substantial gainful activity. At the second step, the claimant must prove that he or she has a severe impairment or combination of impairments. If, at the third step, the claimant proves that the impairment or combination of impairments meets or equals a listed impairment, then the claimant is automatically found disabled regardless of age, education, or work experience. If the claimant cannot prevail at the third step, he or she must proceed to the fourth step where the claimant must prove inability to perform their past relevant work. Jones v. Bowen, 810 F.2d 1001, 1005 (1st Cir. 1986). In evaluating whether the claimant has met this burden, the examiner must consider the following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; (4) the claimant's age, education and work history. Id., at 1005. Once a claimant meets this burden, it becomes the Commissioner's burden to prove at the fifth step that the claimant is capable of engaging in another kind of substantial gainful employment which exists in significant numbers in the national economy, given the claimant's residual functional capacity and age, education, and work history. Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985). If the Commissioner can demonstrate that there are such jobs the claimant can perform, the claimant must prove inability to perform those jobs in order to be found disabled. Jones v. Apfel 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987), citing Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985).
C. Plaintiff's Argument 1) Disability under Rule 201.14.
Plaintiff argues that the Administrative Law Judge (ALJ) committed reversible error by not finding him disabled under Rule 201.14 of the Medical-Vocational Guidelines. 20 C.F.R. Pt. 404, Subpt. P, App. 2 which applies to persons with the residual functional capacity to perform sedentary work. Plaintiff states that the ALJ erred by finding he retained the residual functional capacity for the full range of light work. He argues that the medical evidence, primarily the functional capacities evaluation (Tr. 264-267), the opinion of Dr. Harris in regard to limitations caused by his carpal tunnel syndrome, knee and back pain (Tr. 248), Dr. Broughton's finding of mild degenerative joint disease in his knees (Tr. 319) and Dr. Lowery's finding of mild crepitation in his knees (Tr. 235) combined with his testimony support a finding that he is limited to sedentary work, and that, upon application of Rule 201.14, he would be found disabled.
Based upon a finding that plaintiff was capable of the full range of light work, the ALJ applied Rules 202.13, 202.14 and 202.15 of the Guidelines at the fifth step in the sequential evaluation process which mandated a finding that plaintiff was not disabled (Tr. 25). Therefore, the initial consideration is whether substantial evidence supports the ALJ's decision that plaintiff was limited to the full range of light work.
Light work is defined as follows:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.20 C.F.R. § 404.1567 (b) (1998).
Social Security Ruling 83-10: Titles II and XVI: Determining Capability to Do Other Work — the Medical-Vocational Rules of Appendix 2, discusses the Regulations definition of light work as follows:
2. Light work. The regulations define light work as lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted in a particular light job may be very little, a job is in this category when it requires a good deal of walking or standing — the primary difference between sedentary and most light jobs. A job is also in this category when it involves sitting most of the time but with some pushing and pulling of arm-hand or leg-foot controls, which require greater exertion than in sedentary work; e.g., mattress sewing machine operator, motor-grader operator, and road-roller operator (skilled and semiskilled jobs in these particular instances). Relatively few unskilled light jobs are performed in a seated position.
Frequent" means occurring from one-third to two-thirds of the time. Since frequent lifting or carrying requires being on one's feet up to two-thirds of a workday, the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the remaining time. The lifting requirement for the majority of light jobs can be accomplished with occasional, rather than frequent, stooping. Many unskilled light jobs are performed primarily in one location, with the ability to stand being more critical than the ability to walk. They require use of arms and hands to grasp and to hold and turn objects, and they generally do not require use of the fingers for fine activities to the extent required in much sedentary work.
SSR 83-10.
The ALJ considered the medical evidence and discussed the history of treatment for carpal tunnel syndrome. He noted Dr. Harris' statement that the surgery was successful in relieving the symptoms in the left hand. In regard to Dr. Harris' records, the ALJ found that
Dr. Harris, who treated claimant for carpal tunnel syndrome, noted that the claimant could engage in all manipulative and grasping activities with his left upper extremity, although he would be limited with respect to his right, or predominate, upper extremity. However, the consulting physician found 5/5, or normal, strength in the claimant's hands and the record does not reflect any medical limitations concerning the claimant's abilities to use his right hand for routine activities. Although Dr. Harris indicated some limitations of the right upper extremity with respect to fine manipulation, climbing and crawling, the record does not establish any findings that would preclude the claimant from using both upper extremities for lifting and/or carrying objects consistent with light work activity, which is defined in the Social Security Administration as requiring lifting or carrying of objects weighing not more than 20 pounds or frequently lifting and/or carrying objects weighing more than 10 pounds.
(Tr. 23). The ALJ also noted that the x-rays of plaintiffs knees revealed only mild degenerative joint disease but there was no documentation of "severe loss of motion nor any other physical finding that would establish a severe and limiting symptom." (Tr. 23). Further, the ALJ noted that the carpal tunnel symptoms improved after surgery and that there was "no valid information of record that suggests an inability to use the right upper extremity for light work activities" (Tr. 25). The ALJ also discussed plaintiff's testimony that he could sit for only forty-five minutes and stand for only twenty minutes, and noted the absence of medical evidence to support this limitation (Tr. 25).
Review of the medical records indicates that there is substantial evidence to support the ALJ's determination that plaintiff had the residual functional capacity to perform the full range of light work. There are no medical records of treatment by Dr. Zarzour for lumbar back strain since May 1995 (Tr. 170). The consultative examination by Dr. Lowery revealed plaintiffs ability to flex "his back normally 90 degrees AP and 20 degrees laterally" and "some rather moderate tenderness in his lumbar area." (Tr. 235). As discussed by the ALJ, plaintiffs emergency room examination on January 4, 1997, revealed no joint instability, that he could stand and walk, and a normal x-ray. The examiner suggested that he elevate the knees and noted plaintiffs statement of working on his knees all day long. (Tr. 20, 164-167). However, light work as defined requires frequent standing and walking, or sitting, but not kneeling.
Further, the ALJ discussed Dr. Broughton's January 1997 evaluation wherein he noted "full range of motion of both knees without crepitus" and no "ligamentous laxity." He stated "[o]n exam today, I find no abnormalities of this knee exam." and released the plaintiff to return to work. I should be noted that the release to go back to work occurred only twenty-one (21) days before plaintiff claims he became disabled. (Tr. 20, 225, 227). Also, in regard to plaintiffs knee problem, the January 1998 examination by Dr. Lowery noted plaintiff "[f]lexes and extends his knees well," "[b]oth knees show some mild crepitation, no swelling [and] [t]hey are tender with good range of motion." (Tr. 21, 235). Furthermore, in the functional capacities evaluation of February 1998, although questionable in regards to plaintiffs efforts, the examiner's stated that plaintiff had no difficulty with sitting or standing (Tr. 21, 25). At this evaluation plaintiff did not attempt the tests which required use of his knees, alleging pain, and the therapist noted this limitation, but, stated there was "no clean diagnosis on this knee problem" and that he was "not currently under a physician's care for this." (Tr. 267). Also supportive of the ALJ's determination is the April 1998 examination by Dr. Broughton wherein he noted "slight crepitus to range of motion in both knees, but no effusion was appreciated" and that plaintiffs knee x-rays, both AP (anterior to posterior) and lateral showed only "mild degenerative changes." (Tr. 22, 319-321).
In regards to the plaintiffs allegation of back problems, it is significant to note that there are no records of physical therapy or consistent treatment for his back since 1995 but for intermittent pain medication prescriptions. Furthermore, there are no records of physical therapy, recommendations of weight loss, strengthening exercises or any other treatments customarily prescribed to improve the knees or alleviate the symptoms, but for the one suggestion at the emergency room that he elevate his knees.
Upon consideration of the medical evidence, as outlined in detail above, substantial evidence exists to support the ALJ's determination that, in regard to plaintiffs knees, he should be capable of walking or standing the requisite six out of eight hours per day for light work. Further, as an aside it should be noted that jobs in the light category are also performed while seated using push and pull motions with the arms or working leg controls.
In regards to lifting, light work requires lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Plaintiff has referenced the functional capacities evaluation performed in February 1998, wherein the examiner found plaintiff able to lift, carry, push and pull up to ten pounds, as evidence to support his limitation to sedentary work. (Tr. 267). The ALJ discussed this evaluation and noted inconsistencies in the maximum effort evaluation of plaintiffs grip strength and that his cooperation was questionable. (Tr. 21). Upon review, the evaluation regarding plaintiffs ability to lift and carry does not appear to be of much probative value and therefore the ALJ did not err by discounting the conclusion that plaintiff could only lift and carry up to 10 pounds.
In response to complaints of disability based on carpal tunnel syndrome, the record indicates that in January 1998, Dr. Lowery found plaintiff "very muscular" with normal grip strength at 5/5 in both hands (Tr. 235). Dr. Lowery also noted that plaintiff could flex and extend his fingers well and could touch his thumb to all fingers on both hands and that it was "difficult to adequately evaluate his upper extremity strength, but he is very muscular[.]" (Tr. 235).
The plaintiff relies upon the evaluation of Dr. Harris for his argument that he is unable to perform a full range of light work. Although Dr. Harris' carpal tunnel syndrome questionnaire stated that the condition could affect the claimant's ability to lift and carry objects, he did not know how much weight the claimant could lift or carry (Tr. 249). However, Dr. Harris stated that the plaintiff could "use both upper extremities for simple grasping, pushing and pulling of arm controls, and for reaching, and use his left hand for crawling and fine manipulation but not his right." (Tr. 249). Moreover, according to Dr. Harris, the carpal tunnel symptoms in the left hand were substantially alleviated and the left hand was unlimited but for climbing (Tr. 249-250). There is also an inference is raised by Dr. Harris that if plaintiff received carpal tunnel surgery on his right hand his symptoms would be substantially alleviated and even though a full recovery would not be expected, Dr. Harris does not give any specific limitations regarding plaintiffs right hand (Tr. 248-249). Therefore, Dr. Harris' opinion regarding plaintiffs ability to lift and carry does not lend support to plaintiffs argument that he is limited to sedentary work.
By letter to plaintiffs counsel, Dr. Harris also stated without any intervening examination that, based upon the functional capacities evaluation and the nerve conduction studies of March 27, 1997 (prior to surgery) and plaintiffs report of knee pain, he found it unlikely that plaintiff could spend "40 hours per week on his feet at least." (Tr. 248). This opinion obviously does not relate to plaintiff's ability lift and carry. Instead it relates to plaintiffs back and knee problems, which Dr. Harris never treated. Moreover, it is based upon a questionable functional capacities evaluation, a report of knee pain which is not supported by any clinical or laboratory diagnostic tests but for one x-ray which showed mild degenerative joint disease and a nerve conduction study done prior to plaintiffs carpal tunnel release surgery on his left hand. Therefore, this conclusory opinion lends no support to plaintiffs argument that he is limited to sedentary work.
Based upon the foregoing, the undersigned finds that the record contains substantial evidence to support the ALJ's determination that plaintiff could perform the full range of light work, and therefore finds no error in the application of the Guidelines.
2) Plaintiff's treating physician.
Plaintiff argues that the Administrative Law Judge committed reversible error by failing to assign full weight to and follow the opinion of the plaintiffs treating physician, Dr. Harris. The Social Security regulations define a treating source as follows:
Treating source means your own physician, psychologist, or other acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you. Generally, we will consider that you have an ongoing treatment relationship with an acceptable medical source when the medical evidence establishes that you see, or have seen, the source with a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for your medical condition(s). We may consider an acceptable medical source who has treated or evaluated you only a few times or only after long intervals (e.g., twice a year) to be your treating source if the nature and frequency of the treatment or evaluation is typical for your condition(s). We will not consider an acceptable medical source to be your treating source if your relationship with the source is not based on your medical need for treatment or evaluation, but solely on your need to obtain a report in support of your claim for disability. In such a case, we will consider the acceptable medical source to be a nontreating source.20 C.F.R. § 404.1502 (2000); 20 C.F.R. § 416.902 (2000).
Generally, a treating physician can give the longitudinal, detailed picture of a plaintiffs medical status that can not be obtained from a consultive examination or a short term or one time evaluation by a non-consultive examination, or any other medical source. 20 C.F.R. § 404.1527 (d)(2) (2000); 20 C.F.R. § 416.927 (d)(2) (2000). See McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (a one-time examiner is not a treating physician).
Plaintiff saw Dr. Harris twice: when he performed plaintiffs carpal tunnel surgery in April 1997 and, again for an examination in December 1997. (Tr. 191-212, 248-252). In Dr. Harris' letter dated October 15, 1997, to the plaintiffs workmen's compensation attorney, he stated that plaintiff had been followed since surgery by Franklin Memorial Clinic and not his office. On March 16, 1998, Dr. Harris completed the carpal tunnel syndrome questionnaire (Tr. 249-250) and on March 24, 1998, wrote an opinion letter to plaintiffs social security disability attorney (Tr. 248). It is questionable as to whether Dr. Harris was a "treating physician" as anticipated by the regulations. He did not prescribe any course of treatment, exercises, nor physical therapy for plaintiffs hands. If Dr. Harris is not a treating physician, then there is no presumption that his opinion should be given controlling weight. Therefore, the ALJ could not err by failing to do so.
In the examination of December 1997, Dr. Harris noted that plaintiff had "done well" with the release. He also noted plaintiffs complaints of snapping in the thumbs and pain in the right hand but could not see "anything obvious" nor could he find the "clicking." (Tr. 251). He prescribed medication for "discomfort," "something for sleep" and noted that he would see plaintiff as needed. Dr. Harris noted plaintiff was having some "legal (?) difficulties" arranging carpal tunnel surgery for his right hand and that he would return "when those are cleared up." (Tr. 251).
However, assuming that Dr. Harris is a treating physician, the undersigned finds that the ALJ did not reject the opinion of Dr. Harris but instead accepted his findings in the carpal tunnel assessment questionnaire (Tr. 249-250) and discounted his unsupported opinion in regard to plaintiffs limitations in the letter of March 1998 (Tr. 248). In his decision, the ALJ summarized the findings of the questionnaire noting the specific limitations to plaintiffs hands discussed therein and Dr. Harris' absence of "opinion with respect to a question concerning whether the claimant could engage in gainful employment over an eight hour work day and a forty hour work week." (Tr. 21). The ALJ stated that
Dr. Harris, who treated the plaintiff for carpal tunnel syndrome, noted that the claimant could engage in all manipulative and grasping activities with his left upper extremity, although he would be limited with respect to his right, or predominate, upper extremity. However, the consulting physician found 5/5, or normal, strength in the claimant's hands and the record does not reflect any medical limitations concerning the claimant's abilities to use his right hand for routine activities. Although Dr. Harris indicated some limitations of the right upper extremity with respect to fine manipulations, climbing, and crawling, the record does not establish any findings that would preclude the claimant from using both upper extremities for lifting and/or carrying objects consistent with light work activity[.] . . . The administrative law judge finds that the claimant is limited to light work activity because of his carpal tunnel syndrome.
(Tr. 23). Based upon the foregoing, it appears that the ALJ relied upon the carpal tunnel questionnaire completed by Dr. Harris to reach his decision that plaintiff could perform light work. Therefore, he did not fail to "accord `substantial' or `considerable' weight to the opinion of a claimant's treating physician, absent `good cause' to the contrary." Johns v. Bowen, 821 F.2d 551, 554 (11th Cir. 1987). See also Hillsman v. Bowen, 804 F.2d 1179, 1181 (11th Cir. 1986).
In regard to the March 1998 letter from Dr. Harris, the record indicates that there was good cause to disregard the opinion. The ALJ referenced the opinion of the consultative examiner in regard to plaintiffs grip strength, and absence in the record of any restrictions of use of the right hand for routine activities as his basis for discrediting the conclusory opinion of Dr. Harris in regard to plaintiffs limited use of his right hand. Thus, the ALJ specifically stated a reason for rejecting this aspect of Dr. Harris's opinion. MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (citations omitted) (The Commissioner must specify what weight is given to a treating physician's opinion and any reason for giving it no weight.) An ALJ may discredit evidence submitted by a treating physician, if the ALJ clearly articulates his reasons. Marbury v. Sullivan, 957 F.2d 837. 841 (11th Cir. 1992).
Further, the ALJ's reasons must be legally correct and supported by substantial evidence in the record. Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir. 1987). The record indicates that Dr. Lowery, the consultative examiner, examined the plaintiff one time only and found 5/5 grip strength (Tr. 21, 235). Dr. Harris made no specific findings regarding plaintiffs left hand (Tr. 248-249). Also, in April 1998, Dr. Broughton, who saw the plaintiff four times on complaints of hand or knee pain, noted plaintiffs statement that "he has undergone carpal tunnel release on the left side with resolution of his pain" and did not note any restrictions or limitations of plaintiffs use of his arms or hands. (Tr. 22, 319).
Plaintiff has referenced the functional capacities evaluation upon which Dr. Harris based his opinion letter of March 1998 and argued that because it was the only functional capacities evaluation in the record it should be given controlling weight. Moreover, because the examiner found plaintiff limited to sedentary work, it would follow therefrom, that if Dr. Harris relied upon and accepted that evaluation, then he essentially found that plaintiff is limited to sedentary work. However, as discussed herein, the results of the evaluation are questionable and Dr. Harris' statement that he thought plaintiff could not sustain a forty hour work week on his feet, appears to be based solely upon these questionable functional capacities evaluation. Therefore, the ALJ did not err in rejecting the opinion of Dr. Harris to the extent that it was based upon a questionable evaluation.
Plaintiff also points to Dr. Harris' statement that "[f]rom these studies, it is clear that [plaintiff] is unlikely to be able to spend 40 hours a week on his feet at least" to support his argument that he is disabled (Tr. 248). However, when Dr. Harris made this statement, he had made no independent evaluation of plaintiffs knees, performed no objective medical testing, not reviewed the other medical reports and x-rays, but rather based his opinion solely upon the questionable functional capacities evaluation. The Eleventh Circuit has held that a treating physician's opinion regarding disability may be disregarded by the ALJ if it is unsupported by medical evidence or is wholly conclusory. Edwards v. Sullivan, 937 F.2d 580 (11th Cir. 1991) ( citing Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987). Dr. Harris' conclusory statement is not supported by the objective medical evidence.
3. Plaintiff's credibility.
Plaintiff argues that the Administrative Law Judge committed reversible error in finding plaintiffs testimony in regard to the functional limitations caused by his hand and knee pain not credible. The ALJ considered plaintiffs subjective allegations of symptoms, including numbness and pain, and found him not credible because it was unsupported by objective medical evidence (Tr. 25). Specifically, the ALJ stated:
In concluding that the claimant is not disabled, the Administrative Law Judge considered the claimant's subjective allegations pursuant to Social Security Administration Regulations No. 4 and 16 ( 20 C.F.R. § 404.1529 and 20 C.F.R. § 416.929) which provide for consideration of subjective symptoms, such as pain. The regulations require consideration of daily activities. The record does not reflect any medical reason for any limitation of activities. The regulations require consideration of the location, duration, frequency, and intensity of pain or other symptoms. The claimant testified to an inability to hold things in his hands, and to swelling and pain in his knees and to back pain. However, the record does not confirm any history of treatment for a back impairment since the alleged onset date, reports related to the claimant's knees reveal but mild changes, and the claimant's carpal tunnel symptoms clearly improved following appropriate surgery on his left hand [and] there is no valid information of record that suggests an inability to use the right upper extremity for light work activities. The regulations require consideration of precipitating and aggravating factors related to impairments. The claimant testified that walking 75-100 yards would result in tiredness and in tightness in his chest. Such allegations are not confirmed in the record. The claimant testified that he could stand for but 20 minutes and he could not sit for more than 45 minutes because of numbness and pain. Again, none of the medical evidence refers to allegations of such severe limitations nor does the evidence suggest any impairment that would result in such limitations. The regulations require considerations of medication. The claimant has been prescribed appropriate medications for his impairments, but the record does not reflect any allegations of forgetfulness nor drowsiness, which the claimant described in his testimony, as being reported to any treating or examining physician. No specific measures used to relieve pain or other symptoms were identified and no other factors concerning functional limitations or restrictions are established. The Administrative Law Judge finds that the claimants allegations of disability are not credible.
(Tr. 25-26). This recitation indicates that the ALJ considered plaintiffs complaints of pain and subjective symptoms and applied the appropriate standard thereto. Holt v. Sullivan, 921 F.2d 1221 (11th Cir. 1991), 20 C.F.R. § 404.1529, 20 C.F.R. § 416.929 and Social Security Ruling 96-7p: Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing The Credibility of an Individual's Statements.
Under Holt, the regulations and the ruling, the plaintiff must establish a medically determinable physical or mental impairment which could reasonably be expected to produce the symptoms. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (citing Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986)). (The plaintiff must establish "(1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain [or other symptom] arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain [or other symptom].")
The regulations provide that a claimant may establish disability based on subjective testimony of pain or other symptoms if "medical signs or findings show that there is a medical condition that could be reasonably expected to produce those symptoms.' 20 C.F.R. § 404.1529 and 20 C.F.R. § 416.929." Elam v. Railroad Retirement Board, 921 F.2d 1210, 1215 (11th Cir. 1991).
The Eleventh Circuit has held that the determination of whether objective medical impairments could reasonably be expected to produce the pain was a factual question to be made by the Secretary and, therefore, "subject only to limited review in the courts to ensure that the finding is supported by substantial evidence." Hand v. Heckler, 761 F.2d 1545, 1549 (11th Cir.), vacated for rehearing en banc, 774 F.2d 428 (1985), reinstated sub nom. Hand v. Bowen, 793 F.2d 275 (11th Cir. 1986); Elam v. Railroad Retirement Board, 921 F.2d 1210, 1215 (11th Cir. 1991).
The ALJ found that plaintiff had severe carpal tunnel syndrome and mild degenerative disease of the knees which were established by objective medical evidence (Tr. 24). The ALJ then applied the factors as set forth in the regulation and the ruling and found the plaintiff not credible (Tr. 25-26). The ruling states that
"[f]actors relevant to your symptoms, such as pain, which we will consider include: (i) Your daily activities; (ii) The location, duration, frequency, and intensity of your pain or other symptoms; (iii) Precipitating and aggravating factors; (iv) The type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms; (v) Treatment, other than medication, you receive or have received for relief of your pain or other symptoms; (vi) Any measures you use or have used to relieve your pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and (vii) Other factors concerning your functional limitations and restrictions due to pain or other symptoms."
Social Security Ruling 96-7p.
Upon application of these factors in reaching a decision as to whether plaintiffs medical conditions could reasonably be expected to give rise to the symptoms alleged, the ALJ found plaintiffs symptoms not credible because there was no history of treatment for back pain since the alleged onset date, the objective medical evidence in regard to his knees showed only mild degenerative changes, and plaintiffs symptoms of carpal tunnel improved following surgery on the left hand and that there was no valid information in the record to suggest an inability to use the right hand for light work. (Tr. 25). Under Gibson v. Heckler, 779 F.2d 619, 624 (11th Cir. 1986), credibility determinations are within the discretion of the ALJ, but the ALJ must provide specific reasons for discrediting a claimant's subjective complaints of pain. See also Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987). In this instance, the ALJ has provided adequate reasons which are supported by substantial evidence for discrediting the plaintiffs complaints of pain.
VII. Conclusion
For the reasons set forth, and upon consideration of the administrative record, the memoranda of the parties, and oral argument it is recommended that the decision of the Commissioner denying plaintiffs claim for Social Security disability insurance benefits be affirmed.
The attached sheet contains important information regarding objections to this report and recommendation.