Opinion
Cause No. 1:01-CV-446
July 31, 2002
MEMORANDUM OF DECISION AND ORDER
I. INTRODUCTION
This matter is before the Court for judicial review of a final decision of the defendant, Commissioner of Social Security Administration ("Commissioner"), denying the application of the plaintiff, Alex Galloway ("Plaintiff") for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB").
Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting.
Section 205(g) of the Social Security Act ("the Act") provides, inter alia, "[a]s part of his answer, the [Commissioner] shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the case for a rehearing." It also provides, "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. § 405(g).
II. THE PROCEDURAL AND FACTUAL BACKGROUND
A. The Procedural Background
On November 12, 1998, the Plaintiff filed an application for DIB and SSI, and he alleges an inability to work beginning October 26, 1998. The Plaintiff's claims were denied initially and upon reconsideration. On August 17, 2000, a hearing was held before the Administrative Law Judge Ann C. Grover ("ALJ"). The Plaintiff was represented by counsel and testified at the hearing. Also testifying were the Plaintiffs niece, Barbette Faulkner, and Robert Barkhaus, a vocational expert ("VE").
On September 26, 2000, the ALJ issued her decision wherein she made the following findings:
1. The claimant met the disability insured status requirements of the Act on October 26, 1998, the date the claimant stated he became unable to work, and has acquired sufficient quarters of coverage to remain insured only through December 31, 1998 (Exhibit 7B).
2. The claimant has not engaged in disqualifying substantial gainful activity since October 26, 1998.
3. The medical evidence establishes that the claimant has recent episodes of lightheadedness, a back condition, and a hand condition, impairments which are severe, but which do not meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's statements concerning his impairments and their impact on his ability to work are not credible.
5. The claimant retains the residual functional capacity to perform light exertional work activity that does not involve working around hazardous machinery or at unprotected heights.
6. The claimant is unable to perform his past relevant work as a sander, welder, or painter.
7. The claimant is 52 years old, an individual "approaching advanced age."
8. The claimant has a limited seventh grade education.
9. The claimant has semi-skilled work experience, but no skill transferrable to work within his functional capacity.
10. Based on an exertional capacity for light work, and the claimant's age, educational background, and work experience, Sections 404.1569 and 416.969 and Rule 202.11, Table 2, Appendix 2, Subpart P, Regulations No. 4, would direct a conclusion of "not disabled."
11. Although the claimant is unable to perform the full range of light work, using Rule 202.11 as a framework for decision-making and considering Social Security Ruling 85-15, [he] is capable of making an adjustment to light exertional work which exists in significant numbers in the national and regional economy.
12. The claimant has not been under a disability, as defined in the Social Security Act, at any time through the date of this decision.
13. The claimant's history of alcoholism and polysubstance abuse are not contributing factors material to the determination of disability.
(Tr. at 24-25.)
Based on these findings, the ALJ determined that the Plaintiff was not entitled to DIB or SSI. The Plaintiff requested review by the Appeals Council, which was denied on October 26, 2001, leaving the ALJ's decision as the final decision of the Commissioner. This appeal followed.
The Plaintiff filed his opening brief on May 6, 2002. After an extension of time to file, the Commissioner filed her memorandum in support of the Commissioner's decision, and the Plaintiff filed his reply on July 3, 2002.
B. The Factual Background
The Plaintiff was fifty years-old in October 1998, the alleged onset date of disability, an individual "approaching advanced age," as defined in the Act. See 20 C.F.R. § 404.1563(d).
The Plaintiff was fifty-two years old at the date of the hearing.
The Plaintiff has a seventh grade education and has previous work activity as a sander, welder and painter.
In the Plaintiff's "Disability Report" filed with Social Security in November 1998, he indicated that he had an eighth grade education (Tr. at 104), but during the hearing he testified that he thought he only finished the seventh grade. (Tr. at 40.)
The Plaintiff claims a disability due to hepatitis C, arthritis in his back and hands, and depression with cognitive deficits.
On April 21, 1998, the Plaintiff injured his back while at work. (Tr. at 150.) The subsequent day, he went to the emergency room with complaints of back pain. (Id.) Dr. Rebecca Martin, D.O., examined the Plaintiff, and noted that the Plaintiffs entire back was tender to the touch, and his forward flexion was somewhat restricted. (Id.) Dr. Martin also noted that X-rays of the Plaintiffs lumbosacral spine showed some lumbar spondylosis and degenerative changes of his lower lumbosacral spine. (Tr. at 151.) She ultimately diagnosed the Plaintiff with arthritic pain. (Id.)
Spondylosis is a vertebral ankylosis, often denoting a lesion in the spine. Stedman's Medical Dictionary, 1322 (5th L.Ed. 1984) (hereinafter "Stedman's")
Then apparently sometime around September 1998, the Plaintiff suspected that he had contracted hepatitis, because on or about September 19, he visited the Allen County STD Clinic, where a specimen was drawn and sent to the Indiana Department of Health for analysis. On September 22, 1999, the lab results indicated that the Plaintiff had Hepatitis C because he tested positive for ANTI-HBs, ANTI-HBc, ANTI-HCV, and RIBA HCV 2.0. (Tr. at 173.)
Then on November 3, 1998 the Plaintiff went to The Neighborhood Health Clinic ("the clinic") to discuss his hepatitis C. (Tr. at 169.) Apparently he spoke to a nurse practitioner about the condition after a brief physical exam. (Id.) These notes form one of the parties' central disputes. Although the parties agree that the notes indicate an assessment of Hepatis C, the Plaintiff argues one handwritten note that appears "ASymptomatic" means "Assessment: Symptomatic," while the ALJ and the Commissioner interpret this note to mean "Asymptomatic." (Id.)
On November 5, 1998, the Plaintiff spoke with a registered nurse at the clinic, and she explained the lab results to him, and instructed him to return for more laboratory testing in mid-December. (Id.)
On November 19, 1998, the Plaintiff called the clinic with complaints of arthritis, mainly lower back pain. (Id.)
On December 1, 1998, a physician at the clinic examined the Plaintiff. (Id.) The Plaintiff complained of joint pain including stiffness of the back and hand and chronic hepatitis C. (Id.) Physical examination revealed mild swelling and stiffness in the proximal interphalangeal joints ("PIP joints") and distal interphalangeal joints ("DIP joints") joints on both hands. (Id.) He was unable to flex his fingers or fully extend his hands. (Id.) The clinic physician diagnosed the Plaintiff with osteoarthritis of both hands, sciatica and probable lumbar disk prolapse, chronic hepatitis C, hepatitis anti-body positive, but with normal liver function tests, and induced NSAID gastritis. (Id.) The physician refered him to the St. Joseph Orthopedic Clinic for possible interferon therapy for his hepatitis C. (Id.)
On December 11, 1998 the Plaintiff saw Dr. Mark Channer, M.D., at the St. Joseph Orthopedic Center. (Tr. at 155.) The Plaintiff complained of an extended history of low back pain, leading his legs to give out on five occasions over the course of one year. (Id.) Dr. Channer noted previous lumbar X-rays from an emergency room visit, which he interpreted as showing moderate degenerative disc disease at the L4-L5 levels with Grade I Spondylolisthesis. (Id.) Although Plaintiff reported global tenderness, there was no muscle spasm, leg-raising test was negative, hip range of motion was full, muscle strength was normal and his neurological evaluation was normal (Tr. 155). Dr. Channer diagnosed the Plaintiff with chronic low back pain with degenerative disc disease and spondylolisthesis and recommended further testing (Id.)
On December 18, 1998, the Plaintiff saw Dr. Oladele Olusanya, M.D., at the clinic for a disability determination regarding the Plaintiffs application for Medicaid. (Tr. at 170). Dr. Olusanya noted the results of his physical examination from December 1, 1998, and opined that the severe limitation of movements and functional abilities of both hands had affected the Plaintiffs ability to engage in any occupations requiring the use of hands, and his condition was progressive. (Tr. at 279-81)
Dr. Olusanya opined that his limitations were substantial enough to prevent him from engaging in any type of gainful activity. (Id.) He opined that the Plaintiff had severe limitations in movements and functional abilities of his hands which affected his ability to engage in any occupation requiring the use of his hands. (Tr. at 281.) He added that the Plaintiffs functional limitations might improve with treatment, although they would not completely disappear. (Id.) He also opined that the Plaintiff was limited in sitting, standing and walking, and could not lift anything heavier than a coat. (Tr. at 282.)
On January 12, 1999, the Plaintiff saw Dr. Kevin Scott, M.D., at the St. Joseph Orthopedic Clinic, who reported that further testing indicated negative rheumatoid factor, negative ANA but a sedimentation rate of 16. (Tr. at 153.) The Plaintiff did not complain of radicular symptoms and his strength was 5/5 in both legs with equal and bilateral deep tendon reflexes. (Id.) Moreover, the Plaintiff showed decreased range of back motion, secondary to pain. (Id.) Dr. Scott recommended a course of physical therapy. (Id.)
On January 19, 1999, Plaintiff went to the clinic for a follow-up visit. (Tr. at 168.) He complained of body aches and hand pain, but on examination, Dr. Olusanya reported no deformities in Plaintiffs fingers except for a "cocked-up" right thumb. (Id.)
On January 25, 1999, Dr. Michael E. Holton, M.D., performed a consultative evaluation of Plaintiff (Tr. at 158-61.) An examination of the Plaintiffs lungs revealed prolongation of the expiratory phase and occasional use of accessory muscles. (Tr. at 159.) Also, the Plaintiff exhibited a slow, somewhat shuffling gait without lateralization or the need for an assistive device. (Id.) The Plaintiff also had moderate bilateral stiffness on heel and toe walking. (Id.) There was palpable tenderness in the paracervical and paralumbar areas with muscle spasms, and the Plaintiff exhibited generalized stiffness consistent with wide spread degenerative arthritis, but muscular strength and tone were full in all extremities (Id.) Grip strength was 4/5 bilaterally, but except for some moderate to marked bilateral stiffness, Plaintiff had a normal ability to perform fine finger manipulations (Tr. at 159-60.) Dr. Holton diagnosed the Plaintiff with degenerative arthritis, chronic obstructive pulmonary disease, a reported history of hepatitis C, and low vision. (Tr. at 160.)
On February 25, 1999, the Plaintiff saw Dr. S.L. Tuori, M.D., at the clinic for an examination of his hands. X-rays revealed mild soft tissue prominence around the PIP joints and to a lesser extent the DIP joints. (Tr. at 167.) However, no hypertrophic or erosive changes were seen. (Id.)
On March 17, 1999, the Plaintiff saw Dr. Olusanya at the clinic for a follow-up visit, and Dr. Olusanya noted the February 25, 1999 X-ray report that showed mild soft tissue prominence in the DIP joints with no erosive change. (Tr. at 168.) Nevertheless, Dr. Olusanya assessed the Plaintiff with osteoarthritis, but refused to provide the Plaintiff with Vicodin for his musculo-skeletal pains.
On May 24, 1999, the Plaintiff first saw Dr. William Harter, M.D., for a medical history visit. (Tr. at 198.) Dr. Harter noted the Plaintiff had a history of taking over-the-counter drugs and had a "more expansive lifestyle" which included various legal issues. (Id.) He noted the Plaintiff had made an application for disability due to multiple joint pains of the low back and hands. (Id.) He also noted that the Plaintiff had tested positive for hepatitis C. (Id.) Upon examination, Dr. Harter noted that the Plaintiffs liver felt distended, and he had a small lipoma over the interior low left ribs. (Id.) Dr. Harter diagnosed the Plaintiff with a history of alcoholism, anxiety and accompanying diagnoses, chronic hepatitis C infection, and arthritis. (Id.)
On June 7, 1999, the Plaintiff saw Dr. Harter for a follow-up visit. (Tr. at 197.) The Plaintiff reported no change in his condition. (Id.) Nevertheless, he also noted continued osteoarthritis in his fingers, but that creams had helped some. (Id.) However, the examination of the fingers and hands did not show discrete pathology. (Id.) He was given Daypro samples for the arthritis. (Id.)
On July 1, 1999, Dr. Harter gave Plaintiff medication for arthritis, depression, and heartburn (Id.)
On August 26, 1999, the Plaintiff saw Dr. Birjis Chinoy, M.D., for a physical consultative exam at the request of Social Security. (Tr. at 200-203) The Plaintiff complained that he tired easily, and his hands are numb all of the time. (Id.) He also noted that he had lost about 30 pounds in a year and a half. (Tr. at 201) During the physical examination, the Plaintiff sat easily with moderate discomfort, but he had some difficulty getting on to the examining table with pain in his back. Dr. Chinoy noted that his gait was antalgic, he was unable to walk on heels or toes and tandem walk was difficult, he could not hop or squat, and range of motion in the upper extremities was preserved. (Id.) However, there was lumbosacral tenderness in the L5-S-1 region as well as in the perivertbral regions on both sides. (Tr. at 202) Grip was poor in the left and right hands, and the pharyngeal joints and proximal interphalangeal joints showed stiffness but not swelling. (Id.) A neurological examination indicated the strength in the extremities and proximal and distal groups was 4/5. (Id.) Triceps and biceps in the right side were normal but sluggish in the left side. (Id.) Sensations to coarse touch and pain on the left side in the hand regions from C6, C7, C8 bilaterally were diminished. (Id.) Dr. Chinoy then diagnosed the Plaintiff with chronic hepatitis C with associated symptoms related to fatigue, weakness, and joint pains. (Id.) Finally, Dr. Chinoy noted that the Plaintiff exhibited lumbosacral pain and limitation of activities, and that he had history of alcohol abuse, depression with mild recent memory lapses, and controlled hypertension. (Id.)
On September 2, 1999, the Plaintiff saw Dr. Robert M. Shugart, M.D., with complaints of back pain. (Tr. at 215.) Dr. Shugart performed a physical examination of the Plaintiff and reviewed his medical records. Dr. Shugart also noted the Plaintiff tested positive for Waddell signs. Dr. Shugart opined that the Plaintiff was not a candidate for surgery, and he had no limitations but should engage in activities as tolerated. (Id.)
On October 7, 1999, the Plaintiff saw Dr. Dr. Wayne Von Bargeri, Ph.D., for a psychological evaluation. Dr. Von Bargen opined that the Plaintiffs history suggested the presence of depressive disorder, with symptoms of irritability, social withdrawal, appetite disturbance, sleep disturbance, and concentration difficulties. (Tr. at 205.) Dr. Von Bargen noted that although his symptoms had probably intensified with recent illness and unemployment, they appeared to have been present prior to these events. (Id.) He also noted a history of anti-social behavior, accompanied by a possible personality disorder. (Id.) Dr. Von Bargen diagnosed the Plaintiff with Dysthymic Disorder, possible Major Depressive Disorder, and Personality Disorder. (Id.) He assigned the Plaintiff a Global Assessment of Functioning ("GAF") score of 60. (Id.)
The essential feature of major depressive disorder is a clinical course that is characterized by one or more major depressive episodes without a history of manic, mixed, or hypomanic episodes. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 339 (4th Ed. 1994) (hereinafter "DSM-IV").
A personality disorder is an enduring pattern of inner experience and behavior that deviates markedly from the expectation of the individual's culture, is pervasive and inflexible, has an onset at adolescence or early adulthood, is stable over time, and leads to distress or impairment. DSM-IV at 629.
A GAF score assesses the individual's overall level of mental functioning. A rating of 60 is at the highest end of the moderate symptoms or moderate difficulty in social, occupational, or social functioning category. DSM-IV, at 30-32.
Then on February 23, 2000, the Plaintiff saw Dr. Harter because of three recent episodes of light heatedness. (Tr. at 217.) The physical exam was normal, and Dr. Harter assessed the Plaintiff with depression, chronic low back discomfort, lipoma, and leg weakness. (Id.) Dr. Harter noted that peripheral vascular screening was underway. (Id.)
On March 1, 2000, the Plaintiff again saw Dr. Harter because of hypoglycemic episodes or anxiety attacks. (Id.) Dr. Harter proscribed Zoloft. (Id.)
On April 2, 2002, the Plaintiff saw Dr. Harter stating that he was depressed, and that he had lost 30 pounds since 1999. (Id.)
On April 29, 2000, the Plaintiff attempted to help a friend tow a vehicle, but while handling a chain, his left fingers got caught, resulting in the partial amputation of his left index finger and laceration to his middle finger by the chain. (Tr. at 261.) The Plaintiff went to the Parkview Hospital's emergency room where X-rays of his left hand revealed comminuted tuft fractures to the left index and middle fingers.
On August 9, 2000, the Plaintiff saw Dr. Thomas Paul Ryan, M.D., with complaints of passing out about three times within the course of five months without warning. (Tr. at 295.) An echocardiogram and a dual istope Persantine scan were both normal. (Tr. at 295-296.) Dr. Ryan was at a loss to explain his symptoms; however, he wanted to consider a Tilt Table test. (Tr. at 296.)
On September 9, 2000, Dr. Harter sent a report to plaintiffs counsel explaining that the Plaintiff had difficulties with dizziness or fainting over the past few months and that a cardiological work up was underway. (Tr. at 288.) Dr. Harter noted that the Plaintiff had a history of hepatitis C, although the Plaintiff's liver function tests had been good, and he was not confirming the diagnosis. (Id.) Dr. Harter also noted that the Plaintiff had problems with lower back pain but that blood work and X-rays have not suggested an inflammatory process like lupus or rheumatism. (Id.) Additionally, Dr. Harter suggested that Dr. Shugart's earlier recommendations based solely on the Plaintiffs discomfort were still appropriate but added that he had not tested the Plaintiffs functional capacity. Nevertheless, Dr. Harter believed that the Plaintiff was limited in the following ways: could only stand/sit for 20 minutes per episode, could walk for only 100 feet per episode, had no tolerance for vibrating machinery, could go up no more than one flight of stairs, and because of chronic narcotic use, could not manage machinery. (Tr. at 189.) Thus, Dr. Harter suggested that the Plaintiff could perform a job that allowed him to shift from sitting to standing at will, required no more than intermittent lifting of 10 pounds, allowed for unscheduled breaks, and could accommodate 1-2 days per month missed work due to fatigue and pain. (Id.) Finally, Dr. Harter opined that the Plaintiff had no restrictions on his fine hand motions or finger use, concentration, verbal skills, and reaching overhead if not repetitive. (Id.)
At the hearing, the VE testified that a hypothetical person with the Plaintiffs work restrictions could perform numerous unskilled light jobs within the regional economy, specifically 1,000 jobs as a sales attendant, 200 jobs as a personal companion attendant, 75 jobs as a parking lot attendant, and 300 jobs as a retail marker. (Tr. at 63-64.)
III. STANDARD OF REVIEW
To be entitled to Social Security benefits, the Plaintiff must establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months. . . ." 42 U.S.C. § 416(i)(1); 42 U.S.C. § 423(d)(1)(A). A physical or mental impairment is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). It is not enough for the Plaintiff to establish that an impairment exists. It must be shown that the impairment is severe enough to preclude the Plaintiff from engaging in substantial gainful activity. Gotshaw v. Ribicoff 307 F.2d 840, 844 (4th Cir. 1962), cert. denied, 372 U.S. 945 (1963); Garcia v. Califano, 463 F. Supp. 1098 (N.D.Ill. 1979).
A five step test has been established to determine whether a claimant is disabled. See Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert 482, U.S. 137, 107 S.Ct. 2287, 2290-91 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test as follows:
The following steps are addressed in order: (1) Is the claimant presently unemployed? (2) Is the claimant's impairment "severe"? (3) Does the impairment meet or exceed one of a list of specific impairments? (4) Is the claimant unable to perform his or her former occupation? (5) Is the claimant unable to perform any other work within the economy? An affirmative answer leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than step 3, stops the inquiry and leads to a determination that the claimant is not disabled.
Nelson v. Bowen, 855 F.2d 503, 504 n. 2 (7th Cir. 1988); Zalewski v. Heckler 760 F.2d 160, 162 n. 2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). A claimant has the joint burdens of production and persuasion through at least step four, where the individual's residual functional capacity ("RFC") is determined. Yuckert, 482 U.S. at 146 n. 5; 20 C.F.R. §§ 404.1545, 416.945. At step five the Commissioner bears the burden of proving that there are jobs in the national economy the plaintiff can perform. Herron v. Shalala, 19 F.3d 329, 333 n. 18 (7th Cir. 1994). From the nature of the ALJ's decision to deny benefits, it is clear that step five was the determinative inquiry.
IV. DISCUSSION
Given the foregoing framework, "[t]he question before [this court] is whether the record as a whole contains substantial evidence to support the [Commissioner's] findings." Garfield v. Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) (citing Whitney v. Schweiker 695 F.2d 784, 786 (7th Cir. 1982); 42 U.S.C. § 405(g)); Burnett v. Bowen, 830 F.2d 731, 734 (7th Cir. 1987). "Substantial evidence" has been described as "more than a mere scintilla." Anderson v. Bowen, 868 F.2d 921, 923 (7th Cir. 1989). It means, "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. . . ." Id. (quoting Richardson v. Perales, 402 U.S. 389 (1971); see also Allen v. Weinberger, 552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed . . . unless there has been an error of law." Garfield, 732 F.2d at 607; see also Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).
In the present case, the ALJ found that the Plaintiff had not engaged in any substantial gainful activity since the alleged onset date. At step two, the ALJ found that the Plaintiff's combination of impairments were severe; however the ALJ found that the Plaintiff's impairments did not meet or exceed one of the listed impairments under step three. Under step four, the ALJ found that the Plaintiff was precluded from returning to his past relevant work. However, under step five, the ALJ found that the Plaintiff was capable of performing a significant number of jobs in the regional economy.
The Plaintiff contends that the ALJ committed reversible error by (1) concluding that hepatitis C was not a severe impairment, (2) failing to build an accurate bridge between the evidence and her findings, (3) failing to properly evaluate Dr. Harter's opinion under the "treating physician rule," and (4) failing to give reasons for rejecting Dr. Olusanya's report.
1. Whether the Plaintiff's Hepatitis C is a Severe Impairment
The Plaintiff contends that the ALJ erred when she concluded that his hepatitis C, standing alone, was not a severe impairment under the Social Security Act. The Commissioner contends that the ALJ did not err, and that in any event under step two of the sequential analysis, the ALJ actually found the Plaintiffs combined impairments to be severe.
The applicable regulations define a severe impairment as "[an] impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities[.]" 20 C.F.R. § 416.920(c); Social Security Ruling ("SSR") 85-28. Conversely, where an impairment or combination of impairments has only a minimal effect of the claimant's physical or mental abilities to perform basic work activities, then the impairment is not severe. See SSR 86-8; SSR 85-28.
Here, the ALJ determined that the Plaintiffs hepatitis C was not a severe impairment because the clinic's treatment notes for November 3, 1998, indicate that the Plaintiffs hepatitis C was asymptomatic. (Tr. at 21.) The Plaintiff argues that this conclusion ignores his medical records, and amounts to the ALJ impermissibly playing doctor. See Rousey v. Heckler 771 F.2d 1065, 1069 (7th Cir. 1985).
The parties first dispute what the handwritten treatment notes of one of the clinic's physicians actually meant. Indeed, the clinic's treatment notes from November 3, 1998, contain two entries which appear as follows: "ASymptomatic" and "A. Hep. C." (Tr. at 169.) The Plaintiff insists that capitalized "A" in both are shorthand for "assessment," and he understands the former to mean "Assessment: Symptomatic." Moreover, because both the "A" and the "S" in the former entry are capitalized, the Plaintiff argues that common usage would read a space between the two letters.
However, as the Commissioner rightly points out, the Plaintiffs version is an expansive reading, particularly since there is no space between the "A" and the "S." Moreover, the ALJ's reading is reinforced by the fact that in the latter entry the "A" is separated from "Hep. C" by a period and a space, (i.e., "A. Hep. C") indicative of an abbreviation, and there is no such similar marking in the former entry. Thus, we think the ALJ correctly understood the former entry to read "asymptomatic."
Nevertheless, the Plaintiff also argues that the Commissioner ignored other medical evidence demonstrating that his hepatitis C was actually symptomatic, and presumably thus a severe impairment. In reviewing the ALJ's decision, we must ensure that the ALJ considered all lines of evidence, and minimally discussed contradictory evidence. Scott v. Barnhard ___ F.3d __ 2002 WL 1608218, *4 (7th Cir. July 22, 2002); Godbey v. Apfel, 238 F.3d 803, 807-08 (7th Cir. 2001). Specifically, the Plaintiff points to Dr. Chinoy's opinion that he suffered from chronic hepatitis C associated with "constitutional symptoms related to fatigue, weakness, and joint pains." (Tr. at 202.) Additionally, the Plaintiff maintains that Dr. Harter's letter to his attorney shows that his fatigue is associated with hepatitis C. (Tr. at 288.)
However, we believe the ALJ adequately, even if minimally, considered and discussed these lines of evidence in her decision. Indeed, she specifically discussed Dr. Chinoy's consultative examination, noting the physical limitations and symptoms he observed, but (as discussed more fully infra) ultimately concluded it was entitled to no weight. (Tr. at 18). Moreover, the ALJ addressed the letter Dr. Harter sent to the Plaintiffs attorney, but (as will be discussed infra) she discredited it as lacking sufficient laboratory or clinical support. (Tr. at 21.) Although both of these physicians noted that the Plaintiffs hepatitis C was associated with some fatigue and, in the case of Dr. Chinoy, joint pain and weakness (Tr. at 202, 288), we believe the ALJ's decision on this point is supported by substantial evidence. Indeed, the Plaintiff only saw the Dr. Chinoy once on a consultative visit, and while Dr. Chinoy based his conclusion that the Plaintiff has hepatitis C on medical history and records, it appears that he relied solely on the Plaintiffs subjective complaints to conclude that his fatigue, weakness, and joint pains were associated with that condition. Moreover, Dr. Chinoy performed no clinical or laboratory tests which would link these conditions to the Plaintiffs hepatitis C, and Dr. Harter's letter to the Plaintiffs attorney only states that the Plaintiff has complained of fatigue. Finally, the ALJ properly discounted Dr. Harter's letter as unsupported by clinical or laboratory techniques, and afforded no evidentiary weight to Dr. Chinoy's evaluation (both of which are addressed more fully infra).
In contrast, the medical evidence indicates that while the Plaintiff suffered from hepatitis C, his liver was nevertheless functioning normally. (Tr. at 170, 189, 198, 271, 277, 288.) Additionally, it was certainly reasonable for the ALJ to find that the Plaintiffs hepatitis C was not symptomatic since even the Plaintiff did not associate his joint pains, weakness, or fatigue to that condition. Indeed, during the 55 minute long administrative hearing, the Plaintiff only mentioned either hepatitis or his "liver condition" three times, and even then only in connection with a purported distended liver and memory loss, not fatigue or joint pain. (Tr. at 56-58.) In contrast, the Plaintiff repeatedly connected his hand and back pain to arthritis and osteoporosis rather than hepatitis C. (Tr. at 42-44, 46, 54-57.) Accordingly, we believe the ALJ's decision is supported by substantial evidence.
Moreover, even if the ALJ erred in this determination, her error was harmless because it did not effect the outcome of the case. See Nelson v. Apfel 131 F.3d 1228, 1237 (7th Cir. 1997) (ALJ's improper consideration of evidence harmless when did not alter result). After all, while the ALJ may not have considered hepatitis C to be a severe impairment by itself, she nevertheless found that the Plaintiff had a combination of impairments which were severe under step two of the sequential analysis. (Tr. at 24.) Indeed, the ALJ went on to complete each step of the sequential analysis, giving full credit to the Plaintiffs alleged symptoms, and determined that based on the Plaintiffs RFC, he was still capable of performing a full range of light work. (Tr. at 25.) Moreover, the Plaintiff has not identified how hepatitis C significantly limits his ability to do basic work activities, and merely cites to two medical journal articles that indicate that musculoskeletal pain and fatigue may be associated with hepatitis C. See S. Merican, et al., Clinical, Biochemical and Histological Features in 102 Patients with Chronic Hepatitis C Virus Infection, 86 Q. J. OF MED. 119 (1993) (Tr. at 331-37); Andre Barkhusien, et al., Musculoskeletal Pain and Fatigue Associated with Chronic Hepatitis C, 94 AM. J. OF GASTROENTEROLOGY 1355 (1999) (Tr. at 325-30). However, even if true, it was precisely these types of impairments that the ALJ actually considered to be severe. For example, the ALJ found the Plaintiffs musculoskeletal pain (i.e., his back and hand conditions) and fatigue (i.e., lightheadedness) significantly limited his ability to engage in work activities. Accordingly, even if the ALJ erred in finding that the Plaintiffs hepatitis C was not severe, that error was harmless.
2. The ALJ Built an Accurate Bridge Between the Evidence and Her Conclusions
The Plaintiff also contends that the ALJ failed to build an accurate and logical bridge between several pieces of evidence and her conclusions. See Scott, 2002 WL 1608218, at *4 Godbey, 238 F.3d at 807-08. However, because the ALJ met her minimal articulation standard for evaluating the evidence, we believe her opinion is supported by substantial evidence. See Diaz v. Chater 55 F.3d 300, 307-08 (7th Cir. 1995) Nonetheless, we will address each of the Plaintiffs contentions in turn.
A. Evidence that Hepatitis C is Associated with Joint Pain and Fatigue
First, the Plaintiff contends that the ALJ failed to consider combined effects of the Plaintiffs hepatitis C with his other impairments. However, as discussed supra, we believe the ALJ adequately considered this evidence and built an accurate bridge between the evidence and her conclusion.
B. Evidence Concerning X-ray Findings
The Plaintiff next argues that the ALJ impermissibly "played doctor" when she found the X-rays of his back were "minimal" and that the X-rays of his hands did not support the Plaintiffs allegations. However, while the Plaintiff does not explain how the ALJ erred, it is clear she built an accurate and logical bridge between the evidence and her findings. Id.
Regarding the Plaintiffs back X-rays, Dr. O'Connor indicated that the X-rays revealed "minimal age-related" mid to lower back problems (Tr. at 264) (emphasis added), and Dr. Arata noted only "mild lumbar spondylosis." (Tr. at 152) (emphasis added). Indeed, based on this evidence, the ALJ correctly noted that the Plaintiffs back X-rays revealed minimal findings.
As for the X-rays of the Plaintiffs hands, the ALJ noted that medical findings were inconsistent. She found that a consultative examiner noted degenerative deformities, but that the Plaintiffs treating physician did not observe these deformities at around the same time, and that the alleged deformities were not supported by X-rays. (Tr. at 21.) Although the ALJ's opinion may have been less than clear on this point, it is evident that the Plaintiffs own treating physician supported his opinion with X-rays of the Plaintiffs hands. Indeed, the Plaintiffs treating physician specifically reviewed the hand X-rays and noted they revealed only mild soft-tissue prominence with no erosive changes. (Tr. at 168.) Thus, we find no error with the ALJ's findings.
Accordingly, substantial evidence supports the ALJ's findings.
C. The ALJ Properly Discounted Dr. Chinoy's Consultative Evaluation
In his opening brief, the Plaintiff argues that the ALJ erred when she gave Dr. Chinoy's consultative evaluation no weight because it conflicted with Dr. Holton's examination. However, as the Commissioner correctly points out, the ALJ gave Dr. Chinoy's opinion no weight because it conflicted with Dr. Shugart's evaluation (not Dr. Holton's) and because the Plaintiff tested positive for Waddell's signs. In his reply, the Plaintiff corrected himself and argued that the ALJ erred in affording Dr. Chinoy's opinion no weight because Dr. Shugart only examined the Plaintiffs back while Dr. Chinoy provided a more global assessment, and because the ALJ improperly applied the Waddell signs.
Waddell signs are "nonorganic signs" or factors considered in a standardized assessment of a patient's behavioral responses to examination, which in combination may indicate symptom magnification (i.e., malingering) by the patient. Chris Main and Gordon Waddell, Behavioral Responses to Examination: A Reappraisal of the Interpretation of "Nonorganic Signs," 23 SPINE 2367 (1998) (see Tr. at 319-324).
The regulations provide a list of factors to consider when evaluating what weight to give a medical opinion. These factors include: (1) the length of the treatment; (2) the nature and extent of the treatment relationship; (3) the supportability of the medical opinion; (4) the consistency of the opinion with the record as a whole; (5) the physician's degree of specialization; and (6) other factors which tend to support or contradict the opinion. 20 C.F.R. § 404.1527(d)(2)-(6); 416.927. However, in determining the weight to give to a physician's opinion, the ALJ need only "minimally articulate [her] justification for rejecting or accepting specific evidence[.]" Steward v. Bowen, 858 F.2d 1295 (7th Cir. 1988). See also Stephens v. Heckler, 766 F.2d 284, 287-88 (7th Cir. 1985); Zblewski v. Schweiker 732 F.2d 75, 79 (7th Cir. 1984).
In reviewing those factors here, we believe the ALJ correctly discounted Dr. Chinoy's consultative evaluation. Indeed, Dr. Chinoy only saw the Plaintiff on one occasion, and then only for a consultative evaluation. More important, however, is that the ALJ determined that Dr. Chinoy's opinion was not supported by or consistent with Dr. Shugart's evaluation. Dr. Chinoy noted that the Plaintiffs gait was antalgic and that he was unable to walk on his heels and toes, that tandem walking was difficult, he could not walk or squat and that he had several range of motion limitations. However, Dr. Chinoy's evaluation is not supported by the examination by Dr. Shugart, an orthopedic specialist, just one week later. Indeed, Dr. Shugart reported that the Plaintiff was only in mild pain, but that he had no motor deficits, and while his X-rays showed some disc space narrowing, they were otherwise negative. Moreover, Dr. Shugart noted that the Plaintiff revealed several Waddell signs. Thus, based on this evidence Dr. Shugart concluded that the Plaintiff could work as tolerated without limitation. (Tr. at 216, 286.) Accordingly, the ALJ appropriately considered the 20 C.F.R. §§ 404.1527(d); 416.927(d)(2) factors, and her opinion on that point is supported by substantial evidence.
The Plaintiff contends that the ALJ committed legal error by improperly discounting Dr. Chinoy's evaluation because Dr. Shugart indicated that the Plaintiff tested positive for Waddell signs, which the ALJ interpreted as evidence of malingering. Specifically, the Plaintiff argues that the ALJ did not even point to what Waddell signs were even considered, or that their presence was of any significance. However, we believe the ALJ did not rely solely on this evidence and the weight he provided to Dr. Shugart's opinion is supported by the record as a whole.
D. Evidence of Tow Truck Work
The Plaintiff claims the ALJ erred when she considered evidence that he helped a friend tow a car as being inconsistent with the limitations alleged. Specifically, the Plaintiff argues that he was only riding in the friend's tow truck to catch a ride to a doctor's appointment when the car slipped off the chain, and he attempted to help.
However, although we recognize that the Plaintiff was not performing extended work activity as a tow truck operator, we do not believe the ALJ viewed this evidence in that manner either. Indeed, while the ALJ noted that the Plaintiff was only helping his friend with the towing, she found that he was engaged in that activity enough to receive a serious injury. (Tr. at 21.) Indeed, we agree with the ALJ that this type of activity is generally inconsistent with the Plaintiffs alleged limitations, and we do not believe the ALJ committed legal error by considering it.
E. Evidence Concerning the Plaintiff's Hand Condition
The Plaintiff argues the ALJ incorrectly evaluated the evidence when she found that his hand condition only limits heavy lifting. The Plaintiff argues that the ALJ ignored Dr. Holton, and Dr. Chinoy's opinions, both of which indicated the extent of the Plaintiffs hand limitations. However, our review of the record reveals that the ALJ discussed Dr. Holton's opinion as a contradictory line of evidence. (See Tr. at 21) (referring to "Exhibit 3F" (i.e., Dr. Holton's evaluation)). Moreover, as discussed supra, the Plaintiff correctly afforded Dr. Chinoy's evaluation no weight whatsoever. Accordingly, we believe the decision of the ALJ is supported by substantial evidence.
3. ALJ Properly Discounted the Opinion of the Plaintiff's Treating Physician
In her decision, the ALJ discounted the opinion of Dr. Harter, the Plaintiffs treating physician, who opined that the Plaintiff was very limited in what he could perform. Specifically, in a letter to the Plaintiffs attorney, Dr. Harter noted the following limitations: the Plaintiff could alternately sit or stand for no more than 20 minutes each, could walk no more than 100 feet per episode, could not operate vibrating machinery or climb or manage machinery and could only handle one flight of stairs. (Tr. at 289.)
At this point, we must conduct a two-prong evaluation of the medical opinions of any treating physicians. First, under what is known as the "Treating Physician Rule," the medical opinion of a treating physician must be given controlling weight if the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record. McGraw v. Apfel 87 F. Supp.2d 845, 853 (N.D. Ind. 1999). Second, even if the opinion is not entitled to controlling weight, the physician's opinion is still entitled to deference and must be weighed using the factors set out in the regulations. Id. The regulations also provide that the Social Security Administration "will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion." Id. Nevertheless, "the final decision on whether a claimant is disabled or not is a legal one rather than a medical one, and it is for the ALJ to make that decision." Kapusta v. Sullivan, 900 F.2d 94, 97 (7th Cir. 1989).
Codified at 20 C.F.R. §§ 404.1527(d)(2); 416.927(d)(2); Social Security Ruling 96-2p.
The factors cited include: the length of treatment relationship and frequency of examination; nature and extent of the treatment relationship; supportability (e.g., medical signs and laboratory findings); specialization; and other factors. See 20 C.F.R. § 404.1527(d)(2)-(d)(6).
The ALJ properly reasoned that Dr. Harter's opinion is not entitled to controlling weight since he did not rely on any medically acceptable clinical or laboratory diagnostic techniques. For example, Dr. Harter did not make any medical findings regarding the Plaintiffs condition and he did not rely on any X-rays. Rather, Dr. Harter allegedly relied on the limitations noted by Dr. Holton, however, those limitations are not contained in the record. Additionally, Dr. Harter's opinion is inconsistent with his own treatment notes and with other medical evidence in the record. For example, although Dr. Harter would essentially limit the Plaintiff to sedentary work, he reported that the Plaintiff had no discrete pathology in his hands, no inflammatory process in his back, and had never reported any neurological abnormalities or other significant clinical or laboratory findings. Tr. at 197-98, 288-89.)
Finally, the Plaintiff contends that Dr. Harter's opinion is entitled to controlling weight since the Plaintiffs hepatitis C may have had some impact on his back and joint pain. However, this contention is simply inconsistent with Dr. Harter's treatment notes which never indicate that the Plaintiffs back and hand conditions were related to his hepatis C. Thus, because Dr. Harter's opinion is not supported by medically acceptable laboratory techniques and is inconsistent with other evidence, the ALJ's decision is supported by substantial evidence.
The Plaintiff next contends that if Dr. Harter's opinion is not entitled to controlling weight, it should be evaluated pursuant to the factors provided in 20 C.F.R. §§ 404.1527(d); 416.927(d).
Even if not entitled to controlling weight, treating source opinions must still be evaluated according to the factors discussed supra at 2C. See SSR 96-2p; 20 C.F.R § 404.1527(d); 416.927(d). However, in so doing, the ALJ need only "minimally articulate [her] justification for rejecting or accepting specific evidence[.]" Steward v. Bowen, 858 F.2d 1295 (7th Cir. 1988). See also Stephens v. Heckler, 766 F.2d 284, 287-88 (7th Cir. 1985); Zblewski v. Schweiker 732 F.2d 75, 79 (7th Cir. 1984).
Upon review of the decision, it appears the ALJ properly considered the §§ 404.1527(d); 416.927(d) factors concerning the weight to accord Dr. Harter's opinion that the Plaintiff was essentially capable of working only at the sedentary level. First, while the ALJ did not explicitly discuss the length of Dr. Harter's treatment relationship with the Plaintiff, it is clear that she considered his treatment notes which indicated only intermittent treatment commencing in February 1999. Additionally, we think the ALJ's review of the evidence reveals that she adequately considered the dearth of any sort of medical signs and laboratory findings made by Dr. Harter supporting his decision. See 20 C.F.R. § 404.1527(d)(3) ("The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion. The better an explanation a source provides for an opinion, the more weight we will give that opinion.") Indeed, Dr. Harter did not provide any explanation for his opinions that the Plaintiff required a job permitting alternative sitting and standing every 20 minutes, unscheduled breaks, intermittent lifting of no more than 10 pounds, and which could accommodate 1-2 days missed work a month for fatigue and pain. (See Tr. at 289.) Moreover, the ALJ doubtless considered the fact that Dr. Harter was merely a family practitioner, and not an orthopedic specialist. Consequently, the ALJ correctly devalued the opinion of Dr. Harter. Thus, substantial evidence indicates the ALJ properly considered the §§ 404.1527(d); 416.927(d) factors in weighing Dr. Harter's statement.
E. The ALJ Adequately Articulated Her Consideration of Dr. Olusanya's Opinion
Lastly, the Plaintiff contends that the ALJ failed to minimally articulate her reasons for rejecting the medical opinion of Dr. Olusanya. In December 1998, Dr. Olusanya completed a disability determination form, in which he indicated that the Plaintiff had pain while seated and standing, could not walk more than half a block, could not lift anything "heavier than a coat," and was severely limited in grasping. (Tr. at 282.)
The ALJ is required to evaluate a medical opinion according to the factors discussed supra at 2C. See 20 C.F.R. § 404.1527(d); 416.927(d). However, in so doing, the ALJ need only minimally articulate her consideration of the evidence, an articulation sufficient to allow the reviewing court to trace the path of her decision. Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001); Godbey, 238 F.3d at 807.
Here, we believe ALJ properly considered the §§ 404.1527(d); 416.927(d) factors concerning the weight to accord Dr. Olusanya's opinion. While Dr. Olusanya and other clinic physicians treated the Plaintiff from November 1998 to March 1999, Dr. Olusanya provided his opinion after just one month of treatment. Additionally, Dr. Olusanya did not rely on any medically acceptable clinical or laboratory techniques in reaching his suggested limitations. See 20 C.F.R. § 404.1527(d)(3). Indeed, he conducted no functional capacity evaluation or any other functional testing prior to reaching his conclusions. See Wolf v. Halala, 997 F.2d 321, 325 (7th Cir. 1993) (ALJ may discount physician's limitation opinion when unsupported by objective medical findings). Moreover, the limitations he advised are not even supported by his own treatment notes. For example, although he opined that the Plaintiff was severely limited in grasping, just three months later, in March 1999, he noted that the Plaintiffs X-rays revealed only soft tissue prominence in the Plaintiffs hand with no other significant abnormalities. (Tr. at 168.) Accordingly, we believe the ALJ properly considered the § 404.1527(d) factors in discounting Dr. Olysanya's limitations.
CONCLUSION
Because the opinion of the ALJ is supported by substantial evidence, the decision of the Social Security Administration is hereby AFFIRMED.