Opinion
Case No. 03-2063-DJW
March 31, 2004
MEMORANDUM AND ORDER
Plaintiff brings this action seeking judicial review of the Commissioner's decision to deny her application for disability insurance benefits and supplemental security income based on disability under Titles II and XVI of the Social Security Act. For the reasons set forth below, the decision of the Commissioner denying Plaintiff benefits is affirmed.
I. Procedural Background
Plaintiff filed applications for disability insurance benefits and supplemental social security income on September 5, 2000, alleging she has been disabled since July 3, 1999. After receiving denials at the initial and reconsideration stages, Plaintiff requested a hearing with an Administrative Law Judge ("ALJ"). The hearing was held on March, 26, 2002. On August 9, 2002, the ALJ issued a decision denying benefits, and Plaintiff subsequently filed an appeal requesting review of the ALJ's decision. On December 13, 2002, the Appeals Council denied Plaintiff's request for review, and the ALJ's decision stands as the final decision of the Commissioner in Plaintiff's case.
On February 13, 2003, Plaintiff filed the present action alleging the Commissioner erred as a matter of law in denying Plaintiff her disability benefits and supplemental social security income. For the reasons stated below, the decision of the Commissioner denying benefits is affirmed.
II. Standard of Review
Pursuant to 42 U.S.C. § 405(g) and 1383(c)(3), a court may render "upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." The court reviews the decision of the Commissioner to determine whether the record as a whole contains substantial evidence to support the Commissioner's decision. In reviewing the record to determine whether substantial evidence supports the Commissioner's decision, the court may neither reweigh the evidence nor substitute its discretion for that of the Commissioner.The court also reviews the decision of the Commissioner to determine whether the Commissioner applied the correct legal standards. The Commissioner's failure to apply the proper legal standard may be sufficient grounds for reversal independent of the substantial evidence analysis. Accordingly, the court reviews the decision of the Commissioner to determine whether the record as a whole contains substantial evidence to support the Commissioner's decision and to determine whether the correct legal standards were applied.
Glass v. Shalala, 143 F.3d 1392, 1395 (10th Cir. 1994).
Id. (citing Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993)).
Hamilton v. Sec'y of Health Human Servs., 961 F.2d 1495, 1497 (10th Cir. 1992).
III. Relevant Framework
"Disability" is defined in the Social Security Act as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." The Social Security Act further provides that an individual "shall be determined to be under a disability only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy."To that end, the Social Security Administration has established a five-step sequential evaluation process for determining whether a claimant is disabled. If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.
Id. (citing 20 C.F.R. § 404.1520, 416.920 (1986)).
Id.
Step one of this five-step process requires the ALJ to determine whether the claimant presently is engaged in substantial gainful activity. If she is, disability benefits are denied. If she is not, the decision maker must proceed to the second step. Here, the ALJ determined Plaintiff had not engaged in substantial gainful activity since July 3, 1999. Plaintiff does not dispute this finding.
Id.
Id.
Id.
The second step of the evaluation process involves a determination of whether "the claimant has a medically severe impairment or combination of impairments." This determination is governed by certain "severity regulations," is based on medical factors alone, and does not include consideration of vocational factors as age, education, and work experience. Pursuant to the severity regulations, the claimant must make a threshold showing that her medically determinable impairment or combination of impairments significantly limits her ability to do basic work activities. If the claimant is unable to show that her impairments would have more than a minimal effect on her ability to do basic work activities, she is not eligible for disability benefits. If, on the other hand, the claimant presents medical evidence and makes a minimal showing of medical severity, the decision maker proceeds to step three. At this second step, the ALJ determined that Plaintiff's back pain was severe, but that her depression was not. Based on this determination, the ALJ appropriately moved on to the next step of the evaluation process.
Id. (quoting Bowen v. Yuckert, 482 U.S. 137 (1987)).
Id. (citing 20 C.F.R. § 404.1520(c), 416.920(c) (1986)).
Id. at 750-51 (citing 20 C.F.R. § 404.1521(b), 416.921(b) (1986)).
Id. at 751.
Id.
In step three, the ALJ "determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity." If the impairment is listed, it is conclusively presumed to be disabling, and the claimant is entitled to benefits. If not, the evaluation proceeds to the fourth step, where the claimant must show the impairment prevents her from performing work she has performed in the past. If the claimant is able to perform her previous work, she is not disabled. Here, the ALJ determined Plaintiff's impairments were not equivalent to any of the listed impairments, and Plaintiff was unable to perform her previous work. Plaintiff does not dispute either of these findings.
Id. (citing 20 C.F.R. § 404.1520(d), 416.920(d) (1986); Bowen v. Yuckert, 482 U.S. 137 (1987)).
Id.
Id.
Id.
Thus, the ALJ proceeded to the fifth and final step of the evaluation process: determining whether Plaintiff has the residual functional capacity (RFC) "to perform other work in the national economy in view of [her] age, education, and work experience." At that point, the ALJ properly shifted the burden of proof to the Commissioner to establish that Plaintiff retains the capacity "to perform an alternative work activity and that this specific type of job exists in the national economy." It was at this final step that the ALJ concluded Plaintiff was not disabled, finding that even though Plaintiff suffered from severe pain, she nonetheless could perform a significant number of jobs in the state and national economies, including the jobs of interviewer, receptionist, order clerk, and correspondence clerk.
Id. (quotation omitted).
Id. (citations omitted).
IV. Discussion
Plaintiff contends the ALJ made three errors in reaching her decision: (1) the ALJ's decision regarding Plaintiff's credibility is not supported by substantial evidence of record; (2) the ALJ erroneously assessed Plaintiff's RFC; and (3) the ALJ improperly relied upon the responses of the vocational expert to a hypothetical question that did not include all of Plaintiff's physical and mental limitations. The Court will address each of these arguments in turn.A. Plaintiff's Credibility
Plaintiff's first point is that the ALJ's decision regarding Plaintiff's credibility with respect to her complaints of disabling pain is not supported by substantial evidence of record. "Substantial evidence," such as is necessary to support a decision of the Secretary of Health and Human Services to deny a claim for social security disability benefits, is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. "Generally, credibility determinations are the province of the ALJ, `the individual optimally positioned to observe and assess witness credibility.'" Indeed, courts normally defer to the ALJ on matters involving the credibility of witnesses. The ALJ is required, in assessing credibility, to consider all evidence, both objective and subjective. If an ALJ states she considered all of the evidence, sole reliance on medical evidence in the ALJ's ultimate findings does not allow this Court to assume otherwise.
Adams v. Chater, 93 F.3d 712, 714 (10th Cir. 1996).
Id. at 715 (quoting Casias v. Sec'y of Health Human Servs., 933 F.2d 799, 801 (10th Cir. 1991)).
Hamilton v. Sec'y of Health and Human Servs., 961 F.2d 1495, 1499 (10th Cir. 1992).
Williams v. Bowen, 844 F.2d 748, 753 (10th Cir. 1988).
Hamilton, 961 F.2d at 1498-99.
The legal standards for evaluating the credibility of complaints regarding pain are contained in the Secretary's regulations. Based on these standards, the Tenth Circuit has outlined a framework to be used in evaluating a disability claim based on pain. More specifically, this framework provides that if a pain-producing impairment is demonstrated by objective medical evidence, the decision maker must consider the relationship between the impairment and the pain alleged. The impairment or abnormality must be one which reasonably could be expected to produce the alleged pain. If an appropriate nexus does exist, the decision maker must then consider all the evidence presented to determine whether the claimant's pain is in fact disabling.
Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987).
Id. at 163.
Id.
The first component of the inquiry, the objective impairment prerequisite, is fulfilled without regard to subjective evidence. The second component, a nexus between the impairment and the alleged pain, is examined "tak[ing] the subjective allegations of pain as true." Upon reaching the third component — considering all evidence presented — the decision maker considers medical data presented, any other objective indications of pain, and subjective accounts of the severity of the pain. At this point, the decision maker may assess the claimant's credibility.
Id.
Id.
Here, it is undisputed that Plaintiff's lumbar sprain and degenerative joint disease are impairments capable of producing pain. Since the first component is present, the Court turns its attention to the nexus between these impairments and Plaintiff's subjective allegations of pain; in other words, the impairment must be reasonably expected to produce the pain that is being claimed. Notably, the nexus between the impairment and the alleged pain can be a loose one. "[I]f an impairment is reasonably expected to produce some pain, allegations of disabling pain" are sufficiently consistent to satisfy this part of the evaluation process.
Id.
Id. at 164.
Id. ("For example, an impairment likely to produce some back pain may reasonably be expected to produce severe back pain in a particular claimant") (emphasis in original).
The medical records demonstrate Plaintiff suffers from lumbar pain/lumbar strain, "mild" degenerative joint disease of the lumbosacral spine and depressive syndrome. Plaintiff has a history of treatment by Dr. Knox for chronic back/hip pain and she testified she quit work as a vocational assistant because the pain in her back did not allow her to perform her job duties. Plaintiff has been taking medication for pain and depression since 1996 and she states the combination of the medications hinders her ability to concentrate.
Based on the evidence presented, and given that only a minimal showing is necessary to establish this second component, the Court finds that at least a loose nexus exists between Plaintiff's medical diagnosis and her allegations of pain. Accordingly, the analysis proceeds to the third component of the inquiry: consideration of the totality of the evidence — including, but not limited to, medical data presented, any other objective indications of pain, and subjective accounts of the severity of the pain-to assess the claimant's credibility and decide whether the claimant's assertions of severe pain are worthy of belief.
Luna, 834 F.2d at 163.
In the underlying administrative matter, the ALJ found that Plaintiff's assertions of pain were not credible. Plaintiff asserts the ALJ's findings are erroneous on grounds that, in this third prong of the inquiry, the ALJ considered only the objective evidence and failed to consider the subjective evidence in assessing Plaintiff's credibility as required by the Luna framework. Although it is true that the absence of an objective medical basis for the degree of severity of pain may affect the weight to be given to a claimant's subjective allegations of pain, a lack of objective corroboration of the pain's severity cannot justify disregarding such allegations altogether. The statute permits awarding disability based on pain where subjective statements consistent with objective findings convince the decision maker to find the claimant disabled even though objective evidence alone was insufficient.
Id. at 165.
Avery v. Sec'y of Health Human Servs., 797 F.2d 19, 21 (1st Cir. 1986).
In her determination, the ALJ did not disregard Plaintiff's allegations of pain, but instead considered Plaintiff's subjective complaints of severe and debilitating back pain and subsequently determined they were inconsistent with the objective medical evidence and with Plaintiff's own account of her daily activities.
Objective Medical Evidence Considered
The objective medical evidence in the record establishes Plaintiff has undergone CT scans, MRI's and x-rays in order to determine a cause for her complaints of back pain and that these medical tests revealed little to no abnormalities. On September 29, 1999, x-rays of Plaintiff's low back and pelvis obtained by David J. Clymer, M.D., an orthopaedic surgeon, revealed "no significant bony abnormalities." Dr. Clymer observed a "little bit" of disc space narrowing and facet arthropathy with spurring, but he described it as "not too severe." Dr. Clymer doubted that Plaintiff had "any significant lumbar disc problems," although he could not entirely rule it out based on the x-rays. Accordingly, an MRI of Plaintiff's lumbar spine was performed on October 4, 1999, but it was completely normal, with "no evidence of disc herniation at any of the levels examined," and "no evidence of stenosis."
On January 24, 2000, Michael F. Peril, M.D. of Internal Medicine and Rheumatory Associates, P.C. examined Plaintiff for back pain complaints. The results of his examination were "essentially normal" and Dr. Peril noted no problems in spinal mobility, curvature, or tenderness. CVA tenderness was stated to be "negative." Neurological examination also found no abnormalities. On March 31, 2000, Dr. Peril saw Plaintiff for follow-up, at which time he noted that an MRI revealed no disk disease. Examination of Plaintiff's back revealed no difficulty with heel and toe walking, although she had some pain with palpation over the right SI joint. Flexion of the dorsilumbar spine was to 70 degrees without difficulty. There was no pain with straight leg raises and deep tendon reflexes were intact.
On May 8, 2000, x-rays of Plaintiff's hip obtained by Brian E. Healy, M.D., an orthopaedic surgeon, were completely normal. On May 16, 2000, a lumbar myelogram and CT scan of the lumbar spine also were normal. The myelogram showed "normal alignment of the lumbar spine with vertebral body heights and disk spaces maintained." There was "[v]ery minor ventral ridging noted at multiple lumbar levels," but "no evidence of nerve root displacement or amputation," and "no spinal stenosis." The CT scan showed "no evidence of herniated nucleus pulposus or spinal stenosis." There was also no nerve root clumping or thickening and the bony structures were within normal limits.
On June 22, 2000, Donald K. Hopewell, M.D., a neurologist, examined Plaintiff. Motor examination revealed normal tone, mass, power, coordination, and muscle stretch reflexes in all four extremities, except in her right leg, where some hesitancy due to pain, not decreased strength, was noted. Plaintiff's station and gait were intact and Romberg's sign was absent. She had tenderness on palpation of the lower back, more to the right side of her spine. There was a positive straight leg raise on the right, but no shooting numbness down the leg. Dr. Hopewell rendered his opinion that Plaintiff's back pain was more mechanical and not from any spinal process or radiculopathy.
On August 28, 2000, Douglas B. Knox, M.D., Plaintiff's family care physician, noted that a myelogram showed no acute nerve compressions and was an "essentially unremarkable study," although x-ray films showed some cuffing and possibly spurring at L5-S1 and L4-L5. Nonetheless, Dr. Knox's examination was unremarkable: straight leg raise was negative, and Plaintiff had good strength in toes and heels. Dr. Knox diagnosed lumbosacral strain.
On January 5, 2001, Plaintiff presented to the emergency department at Olathe Medical Center complaining of severe low back pain, x-rays depicting five views of Plaintiff's lumbar spine were taken with the following results: "There is no evidence of a verbetral body fracture. There is mild degenerative spurring. Alignment is preserved without evidence of subluxation. No evidence of sponylolysis." Plaintiff was given an injection of Demerol, after which she requested further injections.
On February 22, 2001, another MRI of Plaintiff's lumbar spine was performed at the Olathe Medical Center, with the following interpretation by Craig M. Bruner, M.D.: "Very mild degenerative changes are seen involving the lower lumbar spine. No focal disk herniation is seen at any level. No significant central spinal canal or neural foraminal stenosis is noted."
On April 5, 2001, C.M. Striebinger, M.D., orthopaedic surgeon, examined Plaintiff. Dr. Striebinger noted that a myelogram and MRI scan were "completely normal." He noted that the myelogram examination report did mention some degenerative change in the SI (sacroiliac) joints. Plaintiff had discomfort with straight leg raising on the right, but was normal on the left, and she had tenderness over the right SI joint to palpation. Dr. Striebinger stated his opinion that Plaintiff's pain was secondary to SI joint changes, although he found "no evidence of disc or actual spine problems."
On May 5, 2001, Olathe Medical Center reported that a test for HLA-B273, processed at Mayo Medical Laboratories in Rochester, Minnesota, was negative. On June 5, 2001, Dr. Knox's examination of Plaintiff resulted in positive straight leg raising bilaterally, producing right lumbar pain, although Plaintiff had good strength in her toes and heels, and normal lower extremity sensation bilaterally. Dr. Knox noted that another MRI had been "essentially unremarkable," and rendered his opinion that Plaintiff's persistent low back pain was likely caused by "a work-related lumbosacral strain." He suggested that she could "retrain and enter a career field not taxing for her back."
On January 14, 2002, Plaintiff was examined at Miami County Medical Center emergency department for back pain complaints. Stephen R. Meirose, D.O., gave Plaintiff pain injections, including Demerol, and released her with a diagnosis of lumbar strain.
Non-Medical and Subjective Factors
The ALJ considered non-medical and subjective factors in her assessment of Plaintiff's credibility, including the fact that Plaintiff was enrolled in twelve hours of college credit and had classes scheduled five days per week. She used a tape recorder at school and occasionally took handwritten notes. While Plaintiff argues in her brief that her school attendance should not be considered because she allegedly attended class only 50-75% of the time, she submitted no school records to substantiate this claim and indicated she was passing all of her courses. With respect to Plaintiff's claim that she was allowed to stand up and move around during classes, the ALJ's RFC finding acknowledges that Plaintiff required "an opportunity to stand," although not a strict sit/stand option. The vocational expert testified that such a requirement would not preclude work in the national economy, including the jobs of interviewer, receptionist, correspondence clerk, and order clerk. The vocational expert explicitly indicated that these jobs "do not require captive sitting," but allow an employee "to move about as long as you don't leave your work station."
The ALJ also considered Plaintiff's medications and alleged side effects, and concluded that "[c]laimant was recently prescribed narcotic pain medication which I have considered, but again that fact does not alone preclude all work." While Plaintiff testified that her narcotic medications caused problems with concentration, the evidence of record indicates she was able to successfully attend college classes in 2002 despite any such side effect. Moreover, medical and income evidence demonstrate Plaintiff was able to work at substantial gainful activity levels in 1996 (annual earnings of $8,179.74) and again in 1999 (annual earnings of $13,147.72) while using narcotic medications to treat symptoms of alleged pain.
Although the Tenth Circuit requires more than a simple recitation of credibility factors, a "formalistic factor-by-factor recitation of the evidence" is not necessary, and an analysis is sufficient "so long as the ALJ sets forth the specific evidence he relies on in evaluating the claimant's credibility." Because the ALJ considered both objective and subjective factors in her credibility analysis, and discussed the specific evidence she relied on in discrediting Plaintiff's subjective complaints, her credibility finding will be upheld.
Quails v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000) (citation omitted).
B. Plaintiff's Residual Functional Capacity
The ALJ found Plaintiff had the residual functional capacity for sedentary employment with an opportunity to stand, but no need for a strict sit/stand option. Plaintiff contends this RFC is improper because (1) it conflicts with her testimony, the testimony of her mother, and the opinion of Dr. Knox; and (2) the ALJ failed to conduct a function-by-function assessment of Plaintiff's limitations and restrictions. The Court will address each of these points in turn.
The Testimony of Plaintiff and her Mother
As discussed, supra, the ALJ found Plaintiff's testimony was not credible. Plaintiff's mother's testimony is discredited by the same factors that detract from Plaintiff's credibility, i.e., lack of evidence to substantiate allegations of disabling symptoms. Because the testimony of Plaintiff and her mother were not supported by the evidence of record, the ALJ was justified in not incorporating limitations based on such testimony in her RFC finding.
See Quails v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000) (ALJ properly omitted limitations from his RFC assessment that were not supported by the record).
The Opinion of Dr. Knox
With regard to the opinion of Dr. Knox, the ALJ discounted the functional limitations suggested as inconsistent with the objective medical findings, as inconsistent with Plaintiff's testimony regarding her daily activities, and as contradicted by the testimony of a specialist in the relevant field, Dr. DeMarco.Standard for Weighing Medical Opinion Evidence
Every medical source opinion, whether held by a treating source, an examining source, or a non-examining source, must be evaluated by the Commissioner in accordance with factors contained in the regulations. "If [the Commissioner] find[s] that a treating source's opinion on the issue(s) of the nature and severity of [the claimant's] impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [claimant's] case record, [the Commissioner] will give it controlling weight." In harmony with the regulations, the Tenth Circuit has held that an ALJ must give controlling weight to a treating source's opinion concerning the nature and severity of claimant's impairments if the opinion "is well supported by clinical and laboratory diagnostic techniques and if it is not inconsistent with other substantial evidence in the record." A treating source's opinion must be given substantial weight unless good cause is shown to disregard it. A treating source opinion is given such weight because it "reflects expert judgment based on continuing observation of a claimant's condition over a prolonged period of time."
20 C.F.R. § 404.1527(d), 416.927(d); Soc. Sec. Rul. 96-5p.
Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir. 1995) (quoting Castellano v. Sec'y of Health Human Serv., 26 F.3d 1027, 1029 (10th Cir. 1994)).
Goatcher v. Dept. of Health Human Servs., 52 F.3d 288, 289-90 (10th Cir. 1995).
Williams v. Chater, 923 F. Supp. 1373, 1379 (D. Kan. 1996).
If a treating source's medical opinion is not given controlling weight, it must be evaluated in accordance with the factors provided for evaluating all medical source opinions. Those factors are:
(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.
Id. at § 404.1527(d)(2-6); Goatcher, 52 F.3d at 290.
When a treating physician's opinion is inconsistent with other medical evidence, the ALJ's task is to examine the other physicians' reports "to see if [they] `outweigh[ ]' the treating physician's report, not the other way around." The ALJ must give specific, legitimate reasons for disregarding the treating physician's opinion that a claimant is disabled. Courts in this jurisdiction have acknowledged various reasons for rejecting a treating source opinion.
Reyes v. Bowen, 845 F.2d 242, 245 (10th Cir. 1988).
Goatcher, 52 F.3d at 289-90.
James v. Dep't of Health Human Serv., No. 94-6124, 1995 WL 65454, at *2 (10th Cir. Feb. 17, 1995) (office records do not support the conclusion); Castellano, 26 F.3d at 1029 (not supported by specific findings); Hargis v. Sullivan, 945 F.2d 1482, 1489-90 (10th Cir. 1991) (ALJ gives specific, legitimate reasons); Murphy v. Callahan, No. 96-4084-SAC, 1997 WL 263739, at *5 (D. Kan. Apr.28, 1997) (physician's records reflect only plaintiff's subjective beliefs); Douglas v. Chater, No. 94-2330, 1996 WL 42131, at *3 (D. Kan. Jan.29, 1996) (treatment records do not support the conclusion).
Analysis
In this case, the ALJ found Plaintiff had an RFC to perform sedentary work with the opportunity to stand, but did not require a strict sit/stand option. The ALJ further found that Plaintiff had the following mental RFC: slight restriction in activities of daily living; slight limitation in maintaining social functioning; slight limitation in maintaining concentration, persistence, or pace as is evidenced by her ability to complete her school work; and no episodes of decompensation of extended duration. "Sedentary" work is specifically described as "involv[ing] lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met."On a medical source statement completed for Plaintiff's attorney, Plaintiff's treating physician, Dr. Knox, submitted a statement claiming he had treated Plaintiff for endometriosis and lumbosacral sprain and that he believed Plaintiff also suffered from depression, poor self-esteem and a short attention span. Dr. Knox stated he believed Plaintiff experienced pain and fatigue from "degenerative arthritis and degenerative SI joints" and that, as a result, Plaintiff was limited to the extent that, among other things, she could not lift and/or carry any amount of weight, she could not stand and/or walk for more than one hour, and could not sit more than one hour in an eight-hour day. Dr. Knox indicated that his opinion was based on a CT scan, an MRI scan, HLA-B27 testing, and "manual assessment. The ALJ rejected Dr. Knox's opinion as being inconsistent with the record as a whole and unsupported by the objective medical evidence.
During Plaintiff's administrative hearing on March 26, 2002, Lynn DeMarco, M.D., a specialist in rheumatology, testified as a medical expert. Dr. DeMarco. testified that Plaintiff's diagnosis would best be classified as lumbar strain and "very minimal" degenerative joint disease of the lumbosacral spine. He stated that, based on the minimal findings from x-rays, CT scans, MRI scans, and myelograms, Plaintiff's back impairments would be classified as "mild." With respect to the "negative" test for HLA-B27, as reported by the Olathe Medical Center, Dr. DeMarco explained that HLA-B27 is a tissue typing that may, but not always, indicate the presence of an inflammatory spinal disease such as ankylosing spondylitis. In this case, Plaintiff's test for HLA-B27 was "negative," thus tending to direct against a diagnosis of inflammatory spinal disease. Dr. DeMarco. stated that everything else in the "chart" was against such a diagnosis as well. Dr. DeMarco. also testified that Plaintiff's depression was not a severe mental impairment.
Based on his review of the medical evidence of record, Dr. DeMarco rendered his opinion that Plaintiff could stand/and or walk up to six hours a day; sit up to eight hours a day, lift twenty to twenty-five pounds, and was only very minimally restricted in bending, stooping, climbing, and twisting. The ALJ found Dr. DeMarco's testimony was supported by the evidence of record.
Plaintiff argues that the ALJ did not give adequate weight to the opinion of her family physician, Dr. Knox. The Commissioner must examine a treating physician's opinion with several factors in mind: the length of the treatment relationship, the frequency of examination, the extent to which the opinion is supported by objective medical evidence, and consistency with other evidence presented. Here, Dr. Knox indicated that his opinion was based on a CT scan, an MRI scan, HLA-B27 testing, and "manual assessment" As discussed, supra, however, all objective clinical testing, including the tests mentioned by Dr. Knox, produced minimal results. The CT scan Dr. Knox apparently refers to was performed in May 2000, along with a myelogram, and neither test detected the presence of a serious spinal condition. The myelogram showed "normal alignment of the lumbar spine with vertebral body heights and disk spaces maintained," and only "[v]ery minor ventral ridging" with "no evidence of nerve root displacement or amputation," and "no spinal stenosis." The CT scan performed the same day showed that all "bony structures were within normal limits," with "no evidence of herniated nucleus pulposus or spinal stenosis," and no evidence of nerve root clumping or thickening.
White v. Massanari, 271 F.3d 1256, 1259 (10th Cir. 2001) (citing 20 C.F.R. § 404.1527(d)(2)).
Similarly, MRI scans were performed on two occasions with normal or near normal findings. In October 1999, an MRI of Plaintiff's lumbar spine showed "no evidence of disc herniation at any of the levels examined," and "no evidence of stenosis.". An MRI performed in February 2001 found only "[v]ery mild degenerative changes" involving the lower lumbar spine, "[n]o focal disk herniation" at any level, and "[n]o significant central spinal canal or neural foraminal stenosis." With respect to Dr. Knox's citing of HLA-B27 testing, such testing was "negative," thus providing no support for Dr. Knox's opinion.
As the ALJ also noted, Dr. Knox is a family practice physician while the medical expert who testified at the hearing, Dr. DeMarco, is a specialist in rheumatology. Dr. DeMarco. testified that the results of clinical tests, including x-rays, CT scans, and MRI scans, were indicative of lumbar strain and "very minimal" degenerative joint disease, both "mild" conditions that would reasonably cause no more than minimal limitations on Plaintiff's ability to perform work activities. As a general rule, the opinion of a specialist about medical issues related to his or her area of specialty is generally entitled to more weight than the opinion of a source who is not a specialist.
Goatcher, 52 F.3d at 290; 20 C.F.R. § 404.1527(d)(5), 416.927(d)(5) (2003).
As discussed in length by the ALJ in her determination, the CT scan, MRI, and HLA-B27 test results cited by Dr. Knox to support his opinion simply do not do so. While Dr. Knox also mentions "manual assessment," it is not clear what this phrase refers to. If it means tests such as straight leg raising, wherein the patient tells the tester at which point in the leg raise he or she feels pain, such a test has a subjective quality and provides little objective support for Dr. Knox's opinion, particularly in light of the minimal findings from conventional x-rays, CT scans, MRI scans, and myelograms. Of course, "manual assessment" may also mean simply listening to Plaintiff's account of her symptoms. In either instance, it was proper for the ALJ to reject Dr. Knox's opinion because it lacks any significant support from the objective medical evidence. An ALJ may reject a treating physician's opinion where the doctor's assessment is based on the claimant's "subjective assertions rather than objective medical evidence."
White, 271 F.3d at 1260.
The ALJ also rejected the portion of Dr. Knox's opinion that rated Plaintiff's mental ability to cope with work stress as "poor to none." The ALJ noted that this opinion "was not supported by the treatment records. Claimant has never been hospitalized for any mental impairment, she takes only very mild medication, and has received minimal psychiatric treatment, at best."
In sum, because the ALJ "articulated specific, legitimate reasons" for discounting Dr. Knox's opinion, her finding in that regard must be upheld.
Qualk v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000) (ALJ properly omitted limitations from his RFC assessment that were not supported by the record); Washington v. Shalala, 37 F.3d 1437, 1440 (10th Cir. 1994).
Function-by-Function Assessment of Plaintiff's Limitations and Restrictions
Plaintiff next contends the ALJ erred at step four of the sequential evaluation process by failing to satisfy the requirements of Social Security Ruling 96-8p and the regulations set forth in 20 C.F.R. § 404.1545. More specifically, she argues the ALJ failed to include a function-by-function assessment of her limitations.At step four, a claimant bears the burden of proving her medical impairment prevents her from performing work she has performed in the past. In order to make the ultimate finding that a claimant is not disabled at step four, however, the ALJ is required by the agency's rulings to make specific and detailed predicate findings concerning the claimant's residual functional capacity, the physical and mental demands of the claimant's past jobs, and how these demands mesh with the claimant's particular exertional and nonexertional limitations.
Williams v. Bowen, 844 F.2d 748, 751 n. 2 (10th Cir. 1988).
SSR 96-8p, 1996 WL 374184, at * 5-6 (July 2, 1996); Winfrey v. Chater, 92 F.3d 1017, 1023-25 (10th Cir. 1996).
In arriving at an RFC, an ALJ must provide a "narrative discussion describing how the evidence supports" his or her conclusion. The ALJ must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The ALJ must also explain how any material inconsistencies or ambiguities in the case record were considered and resolved. The RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence. The RFC assessment must not be expressed initially in terms of the exertional categories of "sedentary [or] light"; rather, a function-by-function evaluation is necessary in order to arrive at an accurate RFC. A failure to make a function-by-function assessment of the claimant's limitations of restrictions could result in the adjudicator overlooking some of the claimant's limitations or restrictions.
SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996).
Id.
Id.
Id.
Id. at *3.
SSR 96-8p, 1996 WL 374184, at *4 (July 2, 1996).
Plaintiff contends the ALJ made a conclusory determination regarding her residual functional capacity and failed to include a function-by-function assessment of her limitations with a narrative setting forth how the medical evidence and other evidence of record supports each conclusion in the assessment of her RFC. The Court disagrees.
The ALJ ultimately found Plaintiff retains the residual functional capacity to perform sedentary work with the opportunity to stand, but does not require a strict sit/stand option. Although in a circuitous manner, the ALJ did perform the necessary function-by function assessment before coming to such a conclusion. The ALJ accepted the findings of Dr. DeMarco, who — based on his review of the all the medical evidence — specifically found found that Plaintiff could stand and/or walk for up to six hours a day, sit for up to eight hours a day, walk and lift 20-25 pounds. Dr. DeMarco further found that Plaintiff should not do repetitive bending, but was not restricted from normal stair climbing or twisting. Finally, Dr. DeMarco. found the medical evidence did not establish that claimant has a "severe" mental condition or depression.
Utilizing these limits, the ALJ concluded Plaintiff could perform sedentary work with the opportunity to stand, but did not require a strict sit/stand option. While she may not have completed her function-by-function assessment within the same paragraph as her conclusion that Plaintiff could do sedentary work, the decision as a whole indicates that the ALJ engaged in the proper analysis.
In reviewing the medical evidence leading up to this RFC finding, the ALJ discusses in detail the testimony of Plaintiff's treating physician, Dr. Knox, but ultimately rejects Dr. Knox's opinion because (1) the opinion lacks any significant support from the objective medical evidence; and (2) the opinion is not supported by what Plaintiff testified she actually does during a day. The ALJ specifically notes in her determination that she gave greater weight to the opinion of Dr. DeMarco. on issues relating to inflammatory disease and resulting limitations given Dr. DeMarco. is a rheumatologist, i.e. specialist, and Dr. Knox is not.
Contrary to Plaintiff's assertion that the ALJ is silent as to the medical evidence the ALJ considered in formulating the RFC determination, the Court finds that the ALJ specifically identified the medical sources for the limitations she included in the RFC assessment. The Court, therefore, holds the ALJ provided an adequate function-by-function assessment of Plaintiff's limitations and a narrative discussion of how the medical evidence and other evidence of record supports her assessment of Plaintiff's RFC.
C. The Hypothetical Question to the Vocational Expert
Plaintiff argues that the ALJ's hypothetical question was improper because it did not contain all of her alleged impairments and limitations, including those given by Dr. Knox. More specifically, Plaintiff argues the ALJ should have included limitations regarding repetitive activity, the inability to concentrate, and absenteeism.
If the hypothetical question includes those impairments the ALJ found credible and excludes those she discredits for legally sufficient reasons, the burden to show a significant number of jobs in the national economy that a claimant could perform is satisfied by the vocational expert's testimony." Testimony elicited by hypothetical questions which include a full description of the impairments of a claimant constitute substantial evidence to support the decision of the ALJ.
Koenig v. Chater, 936 F. Supp. 776, 785 (D. Kan. 1996).
Wiley v. Chater, 967 F. Supp. 446, 452 (D. Kan. 1997).
In her decision, the ALJ determined Plaintiff's testimony regarding her ability to concentrate was not credible due to Plaintiff's own testimony that she was able to complete her school work. In addition, the ALJ found Dr. DeMarco's testimony credible regarding Plaintiff's ability to participate in repetitive tasks and attend work on a regular basis. These determinations led the ALJ to discredit Plaintiff's claims that she cannot conduct repetitive tasks, has the inability to concentrate, and cannot attend work on a regular basis. In response to the ALJ's questions, the vocational expert, Terry L. Cordray, M.S., testified that Plaintiff had skills from her past relevant work transferable to sedentary jobs that did not require "captive sitting," including the job of interviewer (1,500 jobs in Kansas and 135,000 nationally), order clerk (1,600 jobs in Kansas and 150,000 nationally), receptionist (6,000 jobs in Kansas and 600,000 nationally), and correspondence clerk (100 jobs in Kansas and 9,000 nationally). Again, where a hypothetical question includes all the limitations the ALJ ultimately includes in her RFC assessment, "the VE's answer to that question provid[es] a proper basis for the ALJ's disability decision."
Quails, 206 F.3d at 1373.
V. Conclusion
Based on the discussion above, the decision of the Commissioner denying Plaintiff benefits is hereby affirmed. Such decision will dispose of this case, including Plaintiff's Complaint (doc. 1), which has been considered a petition for review.IT IS SO ORDERED.