Opinion
Civil Action 99-0726-AH-S.
October 18, 2000.
RECOMMENDATION OF MAGISTRATE JUDGE
This appeal is brought by Plaintiff, Thaddeus Dixon, pursuant to 42 U.S.C. § 405(g) and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of the Social Security Administration (Commissioner) denying his claim for supplemental security income and disability insurance benefits. This matter has been referred to the undersigned Magistrate Judge for a recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and SDAL LR 72.2. The undersigned has determined that oral argument is unnecessary to resolve this matter.See SDAL LR 7.3. Upon careful consideration of the administrative record and the arguments raised by the parties in their memoranda, it is recommended that the decision of the Commissioner be affirmed.
Procedural History and Background
Thaddeus Dixon (Plaintiff) filed an application for supplemental security income on October 11, 1995, and an application for disability insurance benefits on November 1, 1995, alleging disability as a result of a musculoskeletal impairment. After unfavorable initial and reconsideration determinations, Plaintiff timely filed a request for hearing which was granted. Subsequently, a hearing was held on February 12, 1997, in Mobile, Alabama, before Administrative Law Judge (ALJ) R.G. Goosens. During the hearing, Plaintiff appeared, testified, and was represented by counsel. A vocational expert also appeared and testified at the hearing. On April 12, 1997, Judge Goosens entered a written decision finding that Plaintiff was not disabled. On June 4, 1999, Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council, thus making Judge Goosen's decision the final decision of the Commissioner. The parties agree that this case is now ripe for review and is properly before this Court pursuant to 42 U.S.C. § 405(g) and 1383(c)(3).
Statement of Facts
Plaintiff was born on May 1, 1954, and was forty-two years of age at the time of the administrative hearing. Plaintiff has an eleventh grade education and past work experience as a machine operator, seafood processor, cook, sawmill laborer, bus boy, and warehouse laborer. Plaintiff submits that he is disabled and unable to engage in gainful work activity as a result of a musculoskeletal impairment caused by an automobile accident and that he has been disabled since August 25, 1995.
During the administrative hearing, Plaintiff testified that he attended high school through the eleventh grade and could read and write. Administrative Record, page 51 (R. at 51). Plaintiff stated that he had a driver's license but that he did not drive because "it hurt [him]." R. at 57. According to Plaintiff, he was in an automobile accident several years ago and injured his back. R. at 58. Plaintiff testified that, as a result of the accident, he had two discs removed from his back and that he needed an MRI of his back but could not afford it. R. at 58-59. Plaintiff stated that he still experienced constant pain and some numbness in his left side, that he could not walk long distances or lie on his left side, that he sometimes lost his balance and tripped, and that he had problems with his right hand. R. at 61-62. Plaintiff testified that he was always sleepy, that he spent most of his time lying around the house, and that he often could not sleep due to his pain. R. at 62-63. Plaintiff testified that family members prepared his meals, that he picked up around the house but did not clean or do yard work, that his brother did the grocery shopping, and that he had no hobbies. R. at 64-65. Plaintiff stated that, before the accident, he played football, softball, and basketball but, since the accident, he constantly watches television. R. at 65. Plaintiff also stated that he regularly visited with friends and relatives. R. at 67. Plaintiff testified that he had not utilized vocational rehabilitation services, that he had no treating physician, that Dr. Sauter had been his treating doctor at one time, and that Dr. Sauter wanted him to have an MRI because of the left-side symptoms that he reported after his back surgery but he told the doctor that he could not afford the $400.00 MRI. R. at 68-69. Finally, Plaintiff stated that he tried to get assistance in paying for an MRI by contacting the Mobile Health Center and the Health Department but that his doctor never ordered an MRI for him. R. at 69-70.
During the hearing, the ALJ took the testimony of a vocational expert, Barry Murphy, who was qualified as an expert without objection from Plaintiff's counsel. R. at 71. Mr. Murphy described Plaintiff as a younger individual with a limited education. R. at 71. Mr. Murphy then classified Plaintiff's past relevant work as follows: machine operator as light/unskilled work; seafood processor as medium/unskilled work; cook as medium/semi-skilled work; sawmill laborer as medium/semi-skilled work; bus boy as medium/unskilled work; and warehouse laborer as heavy/unskilled work. R. at 71-72. The ALJ then posed a hypothetical question to the vocational expert asking him to assume an individual of Plaintiff's age and educational and vocational background who was restricted to sedentary exertion. R. at 72-73. Mr. Murphy testified that there were numerous jobs existing in significant numbers in the national economy that such an individual could perform, including the jobs of assembler which is unskilled with 1.8 million jobs in the United States and 2,300 jobs in the state, cashier which is unskilled with 1.2 million jobs in the United States and 10,600 jobs in the state, and telemarketer which is semi-skilled on the low end with 750,000 jobs in the United States and 772 jobs in the state. R. at 72-73.
The ALJ then posed another hypothetical question to the vocational expert asking him to assume the same individual but to also assume the individual had limitations regarding the pushing or pulling of arm controls beyond sedentary requirements. R. at 73-74. The vocational expert stated that these restrictions would not reduce or eliminate the number of jobs existing for such an individual. R. at 74. The ALJ posed a third hypothetical question asking the vocational expert to assume the same individual but also to assume that he was limited to simple grasping and gross manipulation with the dominant right hand but was capable of fine manipulation with the left hand. R. at 74. The vocational expert stated that such a restriction would reduce the availability of telemarketing and cashier jobs by one-half and the availability of assembler jobs by three-fourths. R. at 74.
Plaintiff's counsel asked the vocational expert to assume the facts as stated but also to assume that the individual was limited to sedentary exertion and was unable to use his fingers, to perform fine manipulation with either hand, or to engage in pushing or pulling with either hand. R. at 74-75. The vocational expert replied that no jobs would exist in significant numbers in the national economy suitable for such an individual. R. at 75. Plaintiff's counsel then asked the vocational expert to assume the same facts except to assume that the individual was able to do only simple grasping with his dominate right hand, was able to do fine manipulation with his left hand, could sit for up to 1 hour at a time, and could stand or walk for up to 30 minutes at a time. R. at 75-76. The vocational expert stated that the job base would be significantly eroded for such an individual. R. at 76. Referring to the estimated numbers provided in hypothetical question number one, the vocational expert stated that the telemarketing and cashier jobs would be reduced by one-half, and the assembly jobs would be reduced by nine-tenths. R. at 78.
On April 12, 1997, the ALJ entered his written decision. Based on the evidence before him, the ALJ determined that Plaintiff had the severe impairment of status post cervical diskectomy but that Plaintiff did not have a single impairment or combination of impairments which met or equaled the criteria for any of the impairments listed in 20 C.F.R. § 404, Appendix 1, Subpart P, Regulations No. 4. R. at 25. After determining that Plaintiff's allegations of disability and functional limitations were not supported by the evidence to the degree alleged and therefore were not credible, the ALJ found that Plaintiff had the residual functional capacity for at least sedentary exertion, limited to simple grasping and gross manipulation of the right hand with no routine pushing or pulling of arm controls beyond the sedentary level and with the allowance of sitting one hour at a time and walking or standing thirty minutes at a time. R. at 26. After determining that Plaintiff was unable to return to his past relevant work, the ALJ found that Plaintiff was able to perform the jobs identified by the vocational expert. R. at 26. Using Rule 201.25 and 201.26 of the Medical-Vocational Guidelines as a framework for decision making and based on the testimony of the vocational expert, the ALJ concluded that Plaintiff was not disabled. R.at26.
Issues on Appeal
Plaintiff presents the following issues on appeal: (I) whether the ALJ erred in failing to fully develop a full and fair record by declining to order a consultative examination and an MRI of Plaintiff, (2) whether the ALJ erred in failing to articulate the nonexertional limitations material to his decision; (3) whether the ALJ erred in finding that there are jobs that exist in significant numbers in the national economy which Plaintiff can perform despite his impairments; (4) whether the ALJ failed to make specific findings regarding the effect of the combination of Plaintiff's impairments on his ability to work; and (5) whether the ALJ improperly discounted the opinion of consultative physician Dr. Crotwell III.
Burden of Proof and Standard of Review
The burden lies upon the claimant to prove disability. Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983). "Disability" is defined as the "inability to engage in 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). A claimant will be considered disabled only if:
his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. § 423(d)(2)(A).
The standard or scope of review in Social Security cases comprises two factors: (1) whether the decision of the Secretary is supported by substantial evidence, and (2) whether the correct legal standards were applied. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). As set forth in 42 U.S.C. § 405(g), "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 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, 28 L.Ed.2d 842 (1971);Bloodsworth, 703 F.2d at 1239. A court may neither reweigh the evidence nor substitute its judgment for that of the Secretary. Bloodsworth, 703 F.2d at 1239. Even if a court finds that the preponderance of the evidence is against the decision of the Secretary, the Secretary's decision must be affirmed if it is supported by substantial evidence.Id.
Develop the Record Claim
Initially, Plaintiff contends that the ALJ erred in failing to fully develop a full and fair record by declining to order a consultative examination and an additional MRI. The law in this Circuit is clear that the ALJ is charged with developing a fair and full record. Todd v. Heckler, 736 F.2d 641, 642 (11th Cir. 1984). In addition, the ALJ is bound to make every reasonable effort to obtain from Plaintiff's treating physician(s) all the medical evidence necessary to make a determination. 20 C.F.R. § 404.1512(d). However, as set forth above, the burden is on Plaintiff to prove he is disabled. The Social Security Regulations provide in part:
In general, you have to prove to us that you are blind or disabled. Therefore, you must bring to our attention everything that shows that you are blind or disabled. This means you must furnish medical and other evidence that we can use to reach conclusions about your impairment(s) and, if material to the determination of whether you are blind or disabled, its effect on your ability to work on a sustained basis.20 C.F.R. § 404.1512(a).
In the present case, the ALJ determined that the record before him did not support the need for more evidence, and that he had all of the medical evidence necessary to make a determination as to Plaintiff's functional capacity. This Court's own review of the medical evidence compels the same conclusion. With regard to a consultative evaluation, the record before the ALJ contained medical reports and records from Plaintiff's treating physician, Kent Sauter, M.D., and consultative physicians, Andre J. Fontana, M.D., and William A. Crotwell, III, M.D. Although consultative examinations are not required by statute, the Regulations provide for them where warranted. See 20 C.F.R. § 404.1517. With respect to consultative evaluations, 20 C.F.R. § 404.1519(a) provide in relevant part as follows:
(a)(1) General. The decision to purchase a consultative examination for you will be made after we have given full consideration to whether the additional information needed (e.g., clinical findings, laboratory tests, diagnoses, and prognosis) is readily available from the records of your medical sources.
* * * *
(b) Situations requiring a consultative examination. A consultative examination may be purchased when the evidence as a whole, both medical and non-medical, is not sufficient to support a decision on your claim. Other situations listed below, will normally require a consultative examination: (1) the additional evidence needed is not contained in the records of your medical sources;20 C.F.R. § 404.1519(a).
While it is reversible error for an ALJ not to order a consultative examination when such evaluation is necessary for him to make an informed decision, Reeves v. Heckler, 734 F.2d 519, 522 n. 1 (11th Cir. 1984), the ALJ is not required to order a consultative examination unless the record establishes that such an examination is necessary to enable the ALJ to render a decision. Holladay v. Bowen, 848 F.2d 1206, 1210 (11th Cir. 1988) (citing Ford v. Secretarv of Health and Human Services, 659 F.2d 66, 69 (5th Cir. 1981)). In the case at hand, the ALJ determined that the record did not support the need for further evaluation and that he had adequate information, including two consultative examinations, to properly assess Plaintiff's residual functional capacity.
Plaintiff also argues the ALJ failed to fully and fairly develop the record because he did not order an MRI on his behalf. Social Security Regulations state that if a claimant's medical sources cannot or will not provide sufficient medical evidence about his impairment to enable the ALJ to determine whether he is disabled, the ALJ may ask the claimant to undergo diagnostic tests at the expense of the Social Security Administration. See 20 C.F.R. § 404.1517. In his written decision, the ALJ acknowledged that Plaintiff alleged that he needed an MRI and considered the possible need for an additional MRI, as well as Plaintiff's claim that he could not pay for such a test. After reviewing the medical evidence of record and Plaintiff's testimony, however, the ALJ rejected the Plaintiff's allegation that he needed an MRI as follows:
[T]estimony revealed the cost of [an MRI] to be approximately four hundred dollars. The evidence of record does not support the claimant's allegation that he was unable to afford or receive the MRI. He met the cost of Dr. Crotwell's "independent evaluation." He also manages to support his nonessential weekly alcohol use, which he admitted to be approximately 12 beers a week. Additionally, the Mobile County Health Department records imply a willingness to assist the claimant in securing an MRI. However, according to his testimony, he never returned to the Health Department, nor followed-up regarding this assistance.
Moreover, the record does not support the claimant's allegation that an MRI is required. The claimant was tested by MRI prior to surgery; other than the cervical injury, no abnormalities were noted. Subsequent radiological series documented post-surgical fusion, proper alignment, and "a stable cervical spine." Dr. Sauter's final x-ray showed no interval change; Dr. Crotwell's x-ray showed the fusion and no other abnormalities. Objective findings from all subsequent physical examinations were consistent, indicating the claimant had achieved full recovery with minimal residual effects.
Dr. Sauter, the claimant's treating physician, unambiguously reported the claimant's condition to be stable and impliedly considered further treatment unnecessary. The claimant's final visit to Dr. Sauter occurred after Dr. Sauter declined to evaluate him in regard to his disability claim. Dr. Sauter's findings remained consistent and were silent regarding the presence of residual limitations. Dr. Sauter's examination revealed no medically determinable basis for the claimant's complaints. Dr. Sauter apparently suggested the claimant could try another MRI, and should return if further treatment was indicated. However, Dr. Sauter did not order an MRI, although an added note indicates the claimant was informed of the services offered by the Mobile Health Department. Dr. Sauter did not provide the claimant with a prescription for additional testing, nor did he schedule the claimant for a follow-up appointment; as he had done throughout the course of the claimant's required treatment. Thus, the evidence indicates the claimant's treating physician was satisfied with information available through physical examination and standard x-rays, and considered the claimant recovered. Overall, the undersigned must conclude that it is too speculative to conclude whether an MRI or other test would have disclosed abnormalities corroborating the claimant's symptomatology. Further, the undersigned finds the claimant did not exhaust all avenues of follow-up in his pursuit of additional testing.
R. at 22-23 (references omitted).
The undersigned has reviewed the medical evidence of record and finds that the ALJ's analysis of the medical evidence as set forth above is substantially correct. Moreover, after reviewing the medical evidence and Plaintiff's testimony at the administrative hearing, the undersigned finds that the evidence of record substantially supports the conclusions of the ALJ and his decision not to order an additional consultative examination or MRI testing. Based upon the evidence before the Court, the undersigned finds that the ALJ has substantially fulfilled his requirement to fully develop the record, and that there is sufficient evidence in the record to support the conclusions reached by the ALJ.
Nonexertional Limitations Claim
Plaintiff contends that the ALJ erred in failing to articulate the nonexertional limitations material to his decision. This argument is without merit. The ALJ clearly articulated the nonexertional limitations that were material to his decision. Specifically, the ALJ discussed the Plaintiff's inability to use his dominate right hand for fine manipulation in both the body and the findings of his written decision. R. at 23-25, 26. The ALJ even discussed the connection between Plaintiff's limitation in fine manipulation and significant erosion of the occupational base. R. at 24-25.
Job Availability Claim
Next, Plaintiff contends that the ALJ erred in finding that there are jobs that exist in significant numbers in the national economy which Plaintiff could perform despite his impairments. Specifically, Plaintiff argues that the vocational expert's testimony does not support the ALJ's conclusion that there are a significant number of jobs that Plaintiff could perform. Also, Plaintiff argues that the ALJ did not adequately identify a significant number of jobs that Plaintiff could perform.
During the administrative hearing, the ALJ took the testimony of vocational expert Barry Murphy, who was qualified as an expert without objection from Plaintiff's counsel. R. at 71. Based on the hypothetical questions posed by the ALJ, there were jobs available in the national economy that Plaintiff was able to perform. R. at 72-73. Mr. Murphy testified that there were jobs existing in significant numbers in the national economy that Plaintiff could perform despite his exertional and nonexertional limitations, including the jobs of assembler, cashier, and telemarketer. R. at 72-73. Based on the entire record, including Plaintiff's and the vocational expert's testimony, the ALJ found that Plaintiff was unable to perform his past relevant work. R. at 23. The ALJ then acknowledged that the burden shifted to the Commissioner to show that there were other jobs existing in significant numbers in the national economy that Plaintiff could perform despite his medically determinable impairments, functional limitations, age, education and work experience. R. at 23. The ALJ found that the jobs identified by the vocational expert were jobs that Plaintiff could still perform despite his limitations and that existed in significant numbers in the regional and national economies. R. at 23-24. The ALJ noted that only when the vocational expert was asked to assume unsupported and contradicted contentions regarding nonexertional limitations of both hands did the vocational expert reply that the occupational base would be significantly eroded. R. at 75-78; and see 20 C.F.R. § 404.1566. Interestingly, even when the vocational expert took into consideration the unsupported assumptions posed by Plaintiff's counsel, the vocational expert testified that, although the occupational base would be significantly eroded, there would be jobs available that Plaintiff could perform. Mr. Murphy stated that the telemarketing and cashier jobs would be reduced by one-half and that the assembly jobs would be reduced by nine-tenths. R. at 78. In other words, even when considering the unsupported assumptions posed by Plaintiff's counsel, the vocational expert identified 108,000 national and 230 local unskilled assembler jobs; 600,000 national and 5,300 local unskilled cashier jobs; and 325,000 national and 386 local telemarketer jobs.
According to Social Security Regulations,
[w]ork exists in the national economy when it exists in significant numbers either in the region where you live or in several other regions of the country. It does not matter whether —
(1) Work exists in the immediate area in which you live;
(2) A specific job vacancy exists for you; or
(3) You would be hired if you applied for work.
20 C.F.R. § 404.1566(a). The appropriate focus under the regulation is the national economy. Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987).
In Allen, the vocational expert testified that there were 174 small appliance repair jobs available in the area where the plaintiff lived.Allen, 816 F.2d at 602. The record also contained evidence that there were 1,600 general appliance repair jobs in the state and 80,000 jobs nationwide. Id. The ALJ found that there were a significant number of jobs available to the plaintiff based on the testimony of the vocational expert. On appeal, the plaintiff argued that the Secretary failed to establish that the work he was able to perform existed in sufficient quantity to preclude a finding of disability. The Eleventh Circuit upheld the Secretary's decision and found the Secretary's decision that there were a significant number of jobs available in the national economy was supported by substantial evidence. In the case at hand, the vocational expert identified a total of 1,033,000 national jobs and 5,916 local jobs, many more jobs than in Allen. It is clear that the ALJ reasonably found that these jobs amounted to a significant number of jobs and that his finding is supported by substantial evidence.
In this Circuit, the preferred method of demonstrating job availability where a plaintiff is unable to perform a full range of work at a given functional level or when a claimant has both exertional and nonexertional limitations is through the testimony of a vocational expert. Welch v. Bowen, 854 F.2d 436, 439-440 (11th Cir. 1986). The Commissioner must show that there are other types of work available that Plaintiff can perform and that showing must be supported by substantial evidence. In this case, the ALJ found that there were other jobs available to Plaintiff in significant numbers in the national economy. The ALJ based this finding on the vocational expert's testimony that such jobs existed and that Plaintiff was able to perform them. The undersigned is satisfied that the ALJ's determination is supported by substantial evidence and that he substantially complied with his burden to "articulate specific jobs that exist and that the claimant is capable of performing." Welch at 439 (citing Cowart v. Schweiker, 662 F.2d 731, 736 (11th Cir. 1981)). Thus, Plaintiff's arguments that the vocational expert's testimony does not support the ALJ's conclusion that there are a significant number of jobs that Plaintiff could perform and that the ALJ did not adequately identify a significant number of jobs that Plaintiff could perform despite his impairments is without merit.
Combination of Impairments Claim
Plaintiff contends that the ALJ failed to make specific findings regarding the combined effect of Plaintiff's impairments on his ability to work. The regulations require that the ALJ consider not only a claimant's impairments separately but also in combination. 20 C.F.R. § 404.1522(b) and 404.1523. In this case, the ALJ thoroughly discussed the medical evidence of record, addressing all of Plaintiff's alleged impairments. R. at 14-17. While the ALJ determined that Plaintiff had the "severe" impairment of status post cervical diskectomy, he specifically stated that "[n]o single medically-determinable impairment,or combination thereof, has had specific or equivalent severity of medical findings necessary to establish presumptive disability under the evaluative standards" found in the listings. R. at 25 (emphasis added).
In this Circuit, the ALJ must consider the combined effects of a claimant's impairments in determining whether the claimant is disabled.Walker v. Bowen, 826 F.2d 996 (11th Cir. 1987) (citing Jones v. Bowen, 810 F.2d 1001, 1006 (11th Cir. 1986)). A review of the ALJ's discussion of Plaintiff's alleged impairments followed by the ALJ's statement that he considered all of these impairments in combination before determining that Plaintiff was not disabled, compels a conclusion that the ALJ properly addressed the combination issue. Wheeler v. Heckler, 784 F.2d 1073, 1076 (11th Cir. 1986). Accordingly, since the ALJ acknowledged and discussed Plaintiff's alleged impairments in his decision and stated in his decision that Plaintiff's impairments were considered both singly or in combination, the undersigned finds that the ALJ clearly considered the combined effect of Plaintiff's impairments in making his decision that Plaintiff was not disabled.
Treating Physician Claim
Finally, Plaintiff contends that the ALJ improperly discounted the opinion of consultative physician William A. Crotwell, III, M.D. In his written decision, the ALJ discounted the opinion of Dr. Crotwell and determined that his evaluation merited less weight because it was in conflict with the overall medical and nonmedical evidence of record.
In this Circuit, [t]he testimony of a treating physician must ordinarily be given substantial or considerable weight unless good cause is shown to the contrary." MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986). Good cause exists to reject a treating physician's opinion "when it is so brief and conclusory that it lacks persuasive weight or where it is unsubstantiated by any clinical or laboratory findings."Bloodsworth, 703 F.2d at 1240. Moreover, a treating physician's disability opinion may be discredited where it is not consistent with that physician's own clinical notes and physical capacities evaluation.Jones v. Dept. of Health Human Services, 941 F.2d 1529, 1533 (11th Cir. 1991). In the case sub judice Dr. Crotwell is not one of Plaintiff's treating physicians; Plaintiff was seen by Dr. Crotwell on one occasion for a consultative orthopedic evaluation. Nonetheless, the ALJ may not arbitrarily reject Dr. Crotwell's opinion without articulating specific reasons which are supported by substantial evidence. See MacGregor, 786 F.2d at 1053-54.
The record reveals that, on October 14, 1996, Plaintiff was seen by consultative orthopedist, William A. Crotwell, III, M.D., at the request of his attorney. R. at 210-216. In his report dated October 17, 1996, Dr. Crotwell noted that Plaintiff complained of weakness in his right arm, right side, and right leg, and reported a burning sensation from the left buttock radiating laterally down into his left leg. R. at 210. Dr. Crotwell's report indicates that Plaintiff denied any bowel or bladder dysfunction, or any increase in his pain in connection with coughing or sneezing. R. at 210. Dr. Crotwell's physical examination shows that Plaintiff retained +2 deep tendon reflexes equally in all upper and lower extremities, that sensory was decreased over the volar aspect of the left thumb, and that sweat patterns were good in all fingers. R. at 210.
Dr. Crotwell noted that Plaintiff's forearm was "definitely smaller and wasted compared to the right side," and stated that Plaintiff had "intrinsic wasting" and decreased grip strength on the right side. R. at 210. Dr. Crotwell stated that Plaintiff had 80 percent range of motion in all directions but a definite weakness with triceps, biceps, and wrist flexors and extensors on the right. R. at 210. The report indicates that Plaintiff's toe and heel walk was normal, that his straight leg raises were inconsistent, and that both calves measured 14 inches; both thighs measured 16 inches. R. at 210-11.
X-rays of Plaintiff's lumbar spine showed no major disc space collapse and no major bony abnormalities. R. at 211. X-rays of Plaintiff's cervical spine showed the cervical fusion at C5-6 with an allograft. R. at 211. Dr. Crotwell's recorded the following impressions: 1) post-op severe C5-6 disc syndrome with surgery and fusion with residual muscle atrophy in the right upper extremity and possible Brown-Sequard type radicular components in the left lower extremity with numbness and burning sensation; and 2) possible lumbar disc syndrome. R. at 211. Dr. Crotwell stated that Plaintiff's problems included post-op cervical disc with fusion, residual weakness in the right arm, and left leg problems, and that he thought an MRI and EMGs of both upper and lower extremities were indicated so the doctor could delineate between a cervical cord Brown-Sequard type syndrome and a lumbar disc syndrome. R. at 211. Dr. Crotwell opined that Plaintiff was "100% permanently and totally disabled from carrying out any sort of work activity," and noted he would not allow Plaintiff to do any sort of major work activity until the recommended diagnostic procedures had been carried out. R. at 211.
Dr. Crotwell also prepared a Physical Capacities Evaluation form and a Clinical Assessment of Pain form on October 17, 1996. R. at 212-14. Dr. Crotwell recorded that Plaintiff could occasionally lift and carry up to 5 pounds and could perform simple grasping only, with no fine manipulation or pushing and pulling of arm controls. R. at 212. Dr. Crotwell stated that Plaintiff was completely prohibited from sitting, standing, or walking for any length of time and was completely prohibited from any bending, squatting, crawling, climbing, or reaching. R. at 212. Dr. Crotwell also stated that Plaintiff had total restriction of activities involving unprotected heights, being around moving machinery, exposure to marked changes in temperature and humidity, driving automotive equipment, and exposure to dust, fumes and gases. R. at 212. Dr. Crotwell indicated that pain, which Plaintiff reported was 80% leg pain and 20% back pain, was present, irretractable, and virtually incapacitating, and that physical activity would result in increase of pain to the extent that bed rest and/or medication would be necessary. R. at 213. Dr. Crotwell also indicated that Plaintiff's underlying medical condition was consistent with the pain he alleged. R. at 214. Dr. Crotwell noted that the question about side effects or other impact from medication was not applicable. R at 214.
A review of the written decision of the ALJ reveals that the ALJ discounted Dr. Crotwell's opinion as to Plaintiff's physical capacity. R. at 21. After thoroughly discussing Dr. Crotwell's report and evaluation (R. at 15-17), the ALJ stated:
The Administrative Law Judge has given great weight to the opinion of Dr. Sauter, the claimant's treating physician. The Administrative Law Judge has given due weight to the opinions of Dr. Crotwell and Dr. Fontana, consultative physicians.
The Administrative Law Judge considered the conflicting aspects of Dr. Crotwell's "independent evaluation," and determined his evaluation merits lesser [sic] weight where in conflict with the overall medical and nonmedical evidence of record. Dr. Crotwell was hired by the claimant's attorney to render an evaluation in preparation for litigation. In doing so, Dr. Crotwell had the opportunity to examine the claimant on only a single occasion. The objective results of Dr. Crotwell's physical examination were essential [sic] consistent with those of Dr. Sauter and Dr. Fontana. However, his conclusions, purportedly drawn from these findings, are internally inconsistent and in conflict with the opinions of other physicians of record. Objectively, he notes examination of the claimant's upper extremities showed equal deep tendon reflexes and sweat patterns, and decreased sensory of only the right thumb. He states the right forearm is smaller, yet neglects to provide measurement as he did regarding the legs. He cites weakness of the right triceps, biceps, wrist, and grip; yet, neglects to provide objective strength measurements. His examination of the claimant's lower extremities showed equal deep tendon reflexes, normal sensory, 5/5 motor, normal toe and heel walk, and equally sized right and left legs. He tested the claimant's straight leg raises, and found the claimant showed distress while supine; yet returned seated straight leg raises of 90 degrees with no radicular pain, numbness or tingling. Regardless, Dr. Crotwell concluded the claimant had "problems" in the lower left extremity; and recommended the claimant have upper and lower extremity MRI's and EMG's, although his own objective findings demonstrate essentially equal and adequate functioning.
In essence, Dr. Crotwell's conclusions regarding the claimant's residual functional capacity are not only without some objective foundation, but are contradicted by even the claimant's acknowledged capabilities at time of hearing [sic]. Dr. Crotwell concludes that the claimant is completely unable . . . to sit, stand, or walk any length of time during the day; rendering him essentially bedridden. Dr. Crotwell's recommended restrictions are unusually encompassing. Dr. Crotwell opined that the claimant was restricted from every single situation presented, to include activities involving changes in temperature and humidity; and those involving exposure to dust, fumes and gases. Moreover, Dr. Crotwell rated the claimant's pain as the most extreme of all choices possible; yet he found medication related side effects to be not applicable, probably because no physician has seen fit to prescribe significant pain relieving medication or therapy.
R. at 20-21.
In the case sub judice, the ALJ concluded that Dr. Crotwell's opinion that Plaintiff was "100% permanently and totally disabled from carrying out any sort of work activity" was not supported by the other evidence of record. The ALJ determined that the opinions of Dr. Crotwell as expressed in his evaluation, the Physical Capacities Evaluation form, and the Clinical Assessment of Pain form, were due to be given less weight because they were inconsistent with the other objective evidence of record. As stated previously, the ALJ may not arbitrarily reject the report of Dr. Crotwell without articulating specific reasons which are supported by substantial evidence. See MacGregor, supra. The undersigned has reviewed the medical evidence of record, and after undertaking that review, the undersigned finds that the ALJ demonstrated good cause and articulated specific reasons to reject Dr. Crotwell's opinion regarding Plaintiff's ability to perform work-related activities.
Dr. Crotwell's opinion that Plaintiff was "100% disabled" and totally restricted in his ability to sit, stand, or walk for any length of time is unsupported by the other evidence of record. The medical evidence of record reveals that Plaintiff underwent a diskectomy performed by Dr. Sauter. R. at 141. The records indicate that Plaintiff's postoperative progress resulted in good return of sensation and increase in motor strength in his affected hand, that he was up and about successfully engaged in physical therapy, and that he was independently and functionally able to care for himself. R. at 141. Plaintiff was discharged on September 24, 1995, with instructions to wear a neck collar for 12 weeks and to engage in very light activities for 6 weeks. R. at 142. Thereafter, Plaintiff sought follow-up treatment from Dr. Sauter. R. at 143-174, 183-187. On October 9, 1995, Dr. Sauter noted that Plaintiff demonstrated 4/5 right hand grip, with decreased sensation in the first and second digits, but that all other motor findings were 5/5. R. at 147. X-rays taken on October 9, 1995, and December 4, 1995, showed an intact, well-positioned C5-6 bone graft. R. at 185-186. On December 4, 1995, Dr. Sauter recorded that Plaintiff was doing well and noted that he intended to discontinue the neck collar at the next follow-up. R. at 148. On January 14, 1996, x-rays showed that Plaintiff had achieved good fusion, and Dr. Sauter noted that Plaintiff was neurologically stable. R. at 187. On February 26, 1996, x-rays still showed an intact bone graft with no abnormal movement. R. at 146. Plaintiff complained of a lateral burning sensation on his left leg, and Dr. Sauter instructed Plaintiff to take 3-5 days bed rest and told him to return in two weeks, if necessary. R. at 146. Dr. Sauter also instructed Plaintiff to discontinue wearing the neck collar and noted an impression of questionable left side radiculopathy. R. at 146. Dr. Sauter opined that Plaintiff's condition was stable, and for the first time, did not prescribe further x-rays or schedule a return visit. R. at 146.
On February 22, 1996, Dr. Sauter responded to a Social Security administration request for records. Dr. Sauter provided radiological comparisons, which confirmed that Plaintiff's spinal canal was well maintained and that Plaintiff had achieved a successful fusion with good anatomic alignment. R. at 183. Dr. Sauter stated that Plaintiff was capable of handling his own affairs and indicated that he was not willing to examine Plaintiff in regard to his Social Security disability claim. R. at 183. On March 14, 1996, Dr. Sauter noted that Plaintiff said he was no better with bed rest and Motrin, and that he would obtain an MRI. R. at 204. Dr. Sauter did not schedule a return visit or order further studies but he noted that Plaintiff was referred to "Social Services" for assistance regarding further MRI studies. R. at 204. Dr. Sauter found that Plaintiff had some residual effects from surgery, but was doing well and that his condition was stable. R. at 204. Dr. Sauter recorded no restrictions or limitations on Plaintiff's physical capacity or his ability to work.
On December 5, 1996, Plaintiff was seen for a consultative examination by Andre J. Fontana, M.D. R. at 223-226. After a physical examination, Dr. Fontana noted an impression of status/post cervical injury with some residual possible motor and sensory deficits. R. at 223-224. Dr. Fontana indicted that he would restrict Plaintiff to "very sedentary light type things at this time." R. at 224. In his Physical Capacities Evaluation form, Dr. Fontana opined that Plaintiff could occasionally lift and carry up to 10 pounds, and could rarely lift up to 20 pounds. R. at 225. Dr. Fontana stated that, during a normal 8-hour day, Plaintiff could sit for one hour at a time up to a total of 6 hours in the day, that he could stand for thirty minutes at a time up to a total of 2 hours in the day, and that he could walk for thirty minutes at a time up to a total of one hour in the day. R. at 225. Dr. Fontana noted that Plaintiff was restricted from fine manipulation and the pushing and pulling of arm controls but that Plaintiff could tolerate very sedentary light activities. R. at 225.
Given the foregoing, the undersigned finds that the ALJ articulated specific reasons for discounting Dr. Crotwell's opinion and those reasons are supported by substantial evidence of record. The ALJ's decision to discount the opinion of Dr. Crotwell that Plaintiff was "100% permanently and totally disabled from carrying out any sort of work activity" and to accord Dr. Crotwell' s opinions less weight because they were inconsistent with the other evidence of record is supported by substantial evidence. The objective medical evidence of record supports the ALJ's finding that Plaintiff could perform sedentary work with specific limitations on the use of Plaintiff's right hand and arm and an allowance for alternating between sitting and standing. Thus, the ALJ's decision not to give the opinion of Dr. Crotwell great or controlling weight was not in error.
As stated previously, this Court may reverse the decision of the ALJ only when convinced that the decision is not supported by substantial evidence or that proper legal standards were not applied. Martin, 894 F.2d at 1529. The undersigned has reviewed the evidence of record and finds that this evidence substantially supports the conclusions of the ALJ and his determination that Plaintiff is not disabled. Accordingly, it is the recommendation of the undersigned that the decision of the Commissioner be affirmed.
Conclusion
For the reasons set forth above, the Magistrate Judge recommends that the decision of the Commissioner be affirmed.
The attached sheet contains important information regarding objections to this recommendation.