Opinion
Case No. 02-4116-JAR
April 22, 2004
MEMORANDUM ORDER
Plaintiff Jeannine K. Hedges brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of Defendant Commissioner of Social Security's denial of her application for a period of disability and disability insurance benefits under Title n of the Social Security Act. According to plaintiff, defendant failed to properly evaluate the medical evidence, opinions of the treating and examining physicians, and plaintiff's complaints of pain and mental impairment; failed in finding plaintiff's impairments did not meet the severity of an impairment listed in Appendix 1 to Subpart P of the Regulations Part 404; and failed to find significant jobs in the national economy that plaintiff can perform. As explained in more detail below, the Court rejects each of plaintiff's arguments and affirms defendant's decision.
I. Procedural Background
On April 14, 1999, plaintiff filed her application for a period of disability and disability insurance benefits, claiming disability since October 1, 1995, due to fibromyalgia, chronic anxiety and panic attacks. The application was denied both initially and upon reconsideration. At plaintiff's request, an administrative law judge ("ALJ") held a hearing on June 12, 2000, at which both plaintiff and her counsel were present. On August 15, 2000, the ALJ rendered a decision denying all benefits, on the basis that plaintiff was not under a "disability" as defined by the Social Security Act. After the ALJ's unfavorable decision, plaintiff requested review by the Appeals Council; her request for review was denied on July 5, 2002. Thus, the ALJ's decision is the final decision of defendant.
II. Standard of Review
Judicial review under 42 U.S.C. § 405(g) is limited to whether defendant's decision is supported by substantial evidence in the record as a whole and whether defendant applied the correct legal standards. The Tenth Circuit has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." In the course of its review, the court may not reweigh the evidence or substitute its judgment for that of defendant.
See White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001) (citing Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994)).
Id. (quoting Castellano, 26 F.3d at 1028).
Id.
III. Relevant Framework for Analyzing Claim of Disability and the ALJ's Findings
"Disability" is defined in the Social Security Act as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . . ." The Social Security Act further provides that an individual "shall be determined to be under a disability only if 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. . . ."
Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (quoting 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A) (1982)).
Id. (quoting 42 U.S.C. § 423(d)(2)(A), 1382c(a)(3)(B) (1982 Supp. III 1985)).
The Social Security Administration has established a five-step sequential evaluation process for determining whether a claimant is disabled, and the ALJ in this case followed the five-step process. If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary. Step one determines whether the claimant is presently engaged in substantial gainful activity. If she is, disability benefits are denied. If she is not, the decision maker must proceed to the second step. Here, the ALJ determined that plaintiff was not engaged in substantial gainful activity and, thus, properly proceeded to the second step.
See Id. (citing 20 C.F.R. § 404.1520, 416.920 (1986)).
Id.
Id.
Id.
Id.
The second step of the evaluation process involves a determination of whether "the claimant has a medically severe impairment or combination of impairments." This determination is governed by certain "severity regulations," is based on medical factors alone, and, consequently, does not include consideration of such vocational factors as age, education, and work experience. Pursuant to the severity regulations, the claimant must make a threshold showing that her medically determinable impairment or combination of impairments significantly limits her ability to do basic work activities. If the claimant is unable to show that her impairments would have more than a minimal effect on her ability to do basic work activities, she is not eligible for disability benefits. If, on the other hand, the claimant presents medical evidence and makes the de minimis showing of medical severity, the decision maker proceeds to step three. The ALJ in this case concluded that plaintiff had myofascial pain syndrome, affective disorder, and anxiety disorder, which satisfy the severity requirement and, thus, the ALJ proceeded to step three.
Id. (quoting Bowen v. Yuckert, 107 S.Ct. 2287, 2291 (1987)).
Id. (citing 20 C.F.R. § 404.1520(c), 416.920(c) (1986)).
Id. at 750-51 (citing 20 C.F.R. § 404.1521 (b), 416.921(b) (1986)).
Id. at 751.
Id.
In step three, the ALJ "determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity." If the impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to benefits. If not, the evaluation proceeds to the fourth step, where the claimant must show that the "impairment prevents [the claimant] from performing work he has performed in the past." If the claimant is able to perform her previous work, she is not disabled. With respect to the third step of the process in this case, the ALJ determined that plaintiff's impairments were not listed or medically equivalent to those listed in the relevant regulations. At the fourth step, the ALJ concluded that plaintiff was unable to perform past relevant work.
Id. (citing 20 C.F.R. § 404.1520(d), 416.920(d) (1986); Bowen v. Yuckert, 107 S.Ct. at 2291).
Id.
Id. (citing 20 C.F.R. § 404.1520(e), 416.920(e) (1986); Bowen v. Yuckert, 107 S.Ct. at 2291).
Id.
Thus, the ALJ proceeded to the fifth and final step of the sequential evaluation process-determining whether the claimant has the residual functional capacity (RFC) "to perform other work in the national economy in view of [her] age, education, and work experience." At that point, the ALJ properly shifted the burden of proof to defendant to establish that plaintiff retains the capacity "to perform an alternative work activity and that this specific type of job exists in the national economy. " At this step, the ALJ concluded that plaintiff was not disabled, a conclusion that rested on a finding that plaintiff, despite possessing certain physical limitations, nonetheless could perform a significant number of jobs in the state and national economies, including performing sedentary work as a security monitor, electronics assembler, and optical goods assembler.
See id. (quoting Bowen v. Yuckert, 107 S.Ct. at 2291).
See id. (citations omitted); accord White, 271 F.3d at 1258 (at fifth step, burden of proof shifts to Commissioner to show that claimant retains the functional capacity to do specific jobs).
IV. Analysis of Plaintiff's Specific Arguments
In her motion, plaintiff contends that the ALJ made three errors in reaching his decision-defendant failed at step three to determine that plaintiff's mental impairments equal one listed in the regulations; failed to properly evaluate plaintiff's subjective complaints of pain and mental anguish and the medical evidence and opinions of the treating and examining physicians when determining plaintiff's Residual Functional Capacity ("RFC"); and finally failed to consider plaintiff's award of disability benefits in a case subsequent to this case. The court addresses each of these arguments in turn.
A. Listings 12.04 and 12.06 and plantiff's Mental Impairment
Plaintiff contends that the ALJ erred when he found that her mental impairments did not meet listing 12.04 or 12.06 in step three of his analysis. In order for a claimant to be considered disabled based on a mental impairment listing, "the [Commissioner] must follow the procedure for evaluating mental impairments set forth in 20 C.F.R. § 404.1250a and the Listing of Impairments and document the procedure accordingly." This requires the ALJ to fill out a Psychiatric Review Technique Form ("PRT form"), which determines the severity of the claimant's mental impairments. The form can be filled out by the ALJ with or without the assistance of a medical advisor. In order for the ALJ's findings to be considered sufficient, "the record must contain substantial competent evidence to support the conclusions recorded on the PRT form[, and] if the ALJ prepares the form himself, he must' discuss in his opinion the evidence he considered in reaching the conclusions expressed on the form.'"
Cruse v. U.S. Dep't. of Health Human Servs., 49 F.3d 614, 617 (10th Cir. 1995) (citing Andrade v. Sec'y of Health Human Servs., 985 F.2d 1045, 1048 (10th Cir. 1993)).
Id.
Id.
Id. 617-18 (quoting Washington v. Shalala, 37 F.3d 1437 (10th Cir. 1994)).
In this case, plaintiff's PRT form records the ALJ's conclusions that plaintiff had an affective disorder and an anxiety related disorder, but the severity of her impairment was not enough to raise to the level required in 20 C.F.R. § 404.1520a. The ALJ stated that plaintiff's impairments or combination of impairments did not meet the criteria of any of the listed impairments. He based this on the fact that none of plaintiff's treating or examining physicians mentioned any objective findings equivalent in severity to the criteria of any listed impairments.
A review of the evidence reveals that there was substantial evidence for the ALJ's determination that plaintiff's impairments were not severe enough to meet the listing. The ALJ relied on the findings of Dr. Chance, who reviewed the entirety of the medical record and noted that there was no objective evidence of disabling depression or anxiety. On the other hand, Plaintiff's treating psychiatrist, Dr. Shelton, completed a Mental Residual Functional Capacity form in which he stated that plaintiff had: marked restrictions in her activities of daily living; moderate difficulties in maintaining social functioning; frequent deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner; and repeated episodes of deterioration or decompensation in work or work-like settings.
But the ALJ appropriately gave "little weight" to these opinions of Dr. Shelton, for several reasons. First, Dr. Shelton referred to no objective evidence supporting his opinions. Dr. Shelton's treatment notes do not address or support this laundry list of disabling symptoms. Secondly, there is substantial evidence that plaintiff's affective and anxiety disorders were not sufficiently severe to meet the listings. For example, as Dr. Shelton acknowledged, plaintiff's depression was well controlled with medication; and although she had started taking more anxiety medication, there was no evidence that her anxiety prevented her from working.
Moreover, there was little evidence that plaintiff had received consistent psychological treatment before June 4, 1999. Plaintiff did not see Dr. Shelton for almost two years, from July 31, 1997 to June 4, 1999. Plaintiff's two year hiatus from treatment by Dr. Shelton was another reason that the ALJ discredited Dr. Shelton's statement in the Medical Source Statement, that plaintiff had been unable to work after her fall in August 1998. Furthermore, Dr. Shelton's opinions were based in large part on plaintiff's subjective complaints of pain, which the ALJ found not completely credible.
In short, the ALJ appropriately discounted the opinions of Dr. Shelton, the treating psychiatrist, because there was not substantial supportive evidence in the record. The ALJ found substantial evidence supporting the opinions of Dr. Chance that: there was no objective evidence of disabling depression or anxiety; there was little evidence of psychological testing or treatment; medication appeared to control plaintiff's symptoms; and stress exacerbates plaintiff's symptoms.
B. Assessment of plantiff's RFC
The ALJ found that plaintiff was capable of: lifting and carrying 10 pounds occasionally and two to three pounds frequently; sitting and/or standing throughout an eight hour day, with normal breaks, so long as she is able to alternate positions; performing low stress work that involves occasional contact with the public, but she cannot have constant interaction with supervisors and coworkers. The ALJ concluded that plaintiff has the residual functional capacity to preform a significant range of sedentary work.
Plaintiff contends that the ALJ erred in determining her RFC and resulting ability to perform work existing in substantial numbers in the national economy. Plaintiff argues that the ALJ erred in assessing her credibility and in finding that her pain was not as limiting as plaintiff alleged. Plaintiff further argues that in determining her RFC, the ALJ did not give proper weight to her treating physicians' opinions.
1. Determination of plaintiff's Credibility
Plaintiff asserts that the ALJ committed error by failing to assess properly her credibility in accordance with the Tenth Circuit's opinion in Luna v. Bowen. Under Luna, the ALJ must decide whether a claimant's subjective claims of pain are credible, considering such factors as a claimant's persistent attempts to find relief for her pain and her willingness to try any treatment prescribed, regular use of crutches or a cane, regular contact with a doctor, the claimant's daily activities, and the dosage, effectiveness, and side effects of medication. Moreover, the ALJ must give specific reasons why he or she rejects a claimant's subjective complaints of pain. Ultimately, credibility determinations "are peculiarly the province of the finder of fact," and should not be upset if supported by substantial evidence.
834 F.2d 161 (10th Cir. 1987).
Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000) (citing Luna, 834 F.2d at 165-66).
White v. Massanari, 271 F.3d at 1261 (citing Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995)).
Id. (citing Kepler, 68 F.3d at 390-91).
A review of the ALJ's decision in this case reveals that he complied with Luna in assessing plaintiff's credibility. The ALJ agreed that plaintiff met the first two prongs of Luna, which are that she has a pain producing impairment and there is a loose nexus between the pain and the impairment. He discussed only the third prong of the Luna decision, which requires the ALJ to consider all the evidence presented, including medical data, objective indications of the degree of pain, and subjective accounts of severity of pain by the claimant, to determine if the claimant's pain is in fact disabling. This the ALJ did, by considering the entire record, setting forth the specific evidence he relied upon, applying the correct legal standards in evaluating plaintiff's subjective allegations of pain, and basing his determination on substantial evidence in the record.
Luna, 834 F.2d at 164.
Id. at 163.
The ALJ found plaintiff's subjective complaints of pain not fully credible and her symptoms not as limiting as she alleged. The ALJ compared the objective evidence in the record, as well as all subjective evidence, and found that many of plaintiff's allegations were contradicted by substantial evidence, including objective evidence and plaintiff's own statements and conduct.
Whereas plaintiff claimed that her disability began on October 1, 1995, plaintiff informed Dr. Shelton on June 24, 1996, that she quit her job earlier that year because she had been demoted, not because of pain or other disabling symptoms. Evidence that a claimant quit his or her job for reasons other than disability is important to the determination of whether he or she is disabled. The ALJ also discredited plaintiff's allegation that her disability began on October 1, 1995, because after she quit her job in 1996 she said she was looking for another job, and she reported to Dr. Jacoby on December 29, 1997, that she was running a business out of her home. Desire to work is not evidence that a claimant can work, and could make the claimant's disability claim more believable. However, actually working during a period of alleged disability is probative of plaintiff's ability to work.
See Williams v. Chater, 923 F. Supp. 1373, 1379 (D. Kan. 1996); Pugh v. Sec'y of HEW, 448 F. Supp. 37, 41 (D. Kan. 1978).
Biri v. Apfel, 4 F. Supp.2d 1276, 1279 (D. Kan. 1998) (citing Cavitt v. Schweiker, 704 F.2d 1193, 1195 (10th Cir. 1983)).
Williams, 923 F. Supp. at 1379 (citing 20 C.F.R. § 404.1517 "The work . . . that you have done during any period which you believe you are disabled may show that you are able to work at the substantial gainful activity level. . . . Even if the work you have done was not substantial gainful activity, it may show that you are able to do more work than you actually did.")
There were other contradictions that rendered plaintiff's allegations not fully credible. Plaintiff testified that she was unable to concentrate; yet in May 2000 she informed one of her treating physicians that one of her activities was reading. Further, Plaintiff complained that she had problems with her hands. But a consulting physician, Dr. Sankoorikal, examined plaintiff and found her to have grip strength of 55 lbs. on the right side and 40 lbs on the left side; and he found that her hand dexterity was normal, noting that she was able to drive and wash dishes.
And, substantial evidence contradicted plaintiff's claim that her pain became much worse after she fell in a department store on August 7, 1998. X-rays taken of her knee at that time were normal and her treating physician instructed her to return to work. The ALJ noted that plaintiff "even stated that she was doing well on November 10, 1998," and she did not have further treatment for physical (as opposed to mental) symptoms until February 2000.
The ALJ stated in his opinion that he has no doubt plaintiff has pain, but he believes the "allegations of symptom levels that preclude all types of work are not consistent with the evidence as a whole and are not credible." Because credibility determinations are ultimately left to the ALJ when he has substantial evidence for his determination, the Court finds that the ALJ's decision regarding plaintiff's credibility is not erroneous.
2. Treating Physicians' Opinions
Plaintiff further argues that the ALJ's determination of RFC was in error because he failed to give adequate weight to the treating physicians' opinions. The ALJ noted that he gave little weight to the Medical Source Statements of Dr. McKinney and Dr. Shelton — both treating physicians. He also gave little weight to the opinions of Dr. Jacoby, another treating physician, and Dr. Zimmerman, a consultative physician. A treating physician's opinion is given controlling weight only if it is "well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in [the] record . . . " According to the Tenth Circuit, a treating physician's opinion is not dispositive on the ultimate issue of disability. In addition to its consistency with other evidence, the court examines a treating physician's opinion with several factors in mind, including the length of the treatment relationship, the frequency of examination, and the extent to which the opinion is supported by objective medical evidence. In short, the ALJ cannot disregard a treating physician's opinion that a claimant is disabled without giving legitimate and specific reasons for doing so.
20 C.F.R. § 404.1527(d)(2); see also Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003).
White, 271 F.2d at 1259 (citing Castellano, 26 F.3d at 1029).
Id. (citing 20 C.F.R. § 404.1527(d)(2)).
See Goatcher v. United States Dep't of Health Human Servs., 52 F.3d 288, 290 (10th Cir. 1995) (citing Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987)).
The court finds that the ALJ in this case articulated specific and legitimate reasons for discounting these treating doctors' opinions; the opinions were either contradicted, not supported by substantial evidence, or not supported by the doctor's treatment notes and history of treating plaintiff. For example, in her June 8, 2000, Medical Source Statement, Dr. McKinney stated that plaintiff could stand only one minute; this was inconsistent with Dr. McKinney's statement on February 17, 2000, that plaintiff should perform mild aerobic activity. And, Dr. McKinney had no objective basis to state that plaintiff's fall in 1998 aggravated her fibromyalgia, because Dr. McKinney did not examine plaintiff until February 17, 2000.
Similarly, the ALJ gave little weight to treating physician Dr. Shelton's Medical Source Statement, because his treating notes did not support his opinion that plaintiff's pain markedly limited her ability to function. Dr. Shelton also rendered an opinion that plaintiff had not been able to work since her fall in 1998; yet the records indicate that plaintiff did not seek treatment from Dr. Shelton until June 4, 1999.
In a March 9, 2000 letter to plaintiff's attorney, treating physician Dr. Jacoby opined that plaintiff could not work and that her fall had aggravated her symptoms. But, there is no support for such an opinion in his treating notes. Plaintiff only saw the nurse at Dr. Jacoby's clinic, until January 7, 1999, when she saw Dr. Jacoby and he noted that plaintiff was depressed and anxious because her mother had died, not mentioning any depression arising from her physical problems.
In short, the ALJ discounted and gave little weight to the opinions of treating doctors Jacoby, Shelton and McKinney, as well as the opinions of consulting doctor Zimmerman, because all were seemingly largely based on plaintiff's subjective allegations of pain, and her self reported history of symptoms during times when these doctors were not treating or examining her. The Tenth Circuit has held that this is an entirely appropriate reason to disregard the opinion of a treating physician. Because the doctors' opinions are not well-supported by objective evidence, are inconsistent with other evidence in the record, and appear to be based in large part on plaintiff's subjective complaints, the ALJ did not err in giving these opinions little weight.
See Boss v. Barnhart, No. 02-7114, 2003 WL 21357260, at *3 (10th Cir. June 12, 2003) (citing Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994)). Pursuant to 10th Cir. Rule 36.3(B)(1), the court cites this unpublished opinion for its persuasive value.
The ALJ did give some weight to the doctors' opinions, and to plaintiff's complaints of pain when determining her RFC. Notably, the ALJ did not entirely adopt the physical and mental RFC determinations of the agency's nonexamining medical consultants. Whereas the consultant determined that plaintiff could lift or carry 10 pounds frequently, sit about six hours and stand at least two hours in an eight hour workday; the ALJ found that plaintiff could lift or carry only two to three pounds frequently. He further found that plaintiff could sit or stand throughout an 8 hour day as long as she was able to alternate positions. And whereas the consultant determined that plaintiff could interact appropriately with coworkers without significant limitation and interact with the public and supervisors with moderate limitations; the ALT found that plaintiff could only do low stress work with occasional contact with the public and no constant interaction with supervisors or coworkers. It is apparent that the ALJ's findings are based on a review of all of the medical evidence, testimony and record. And, although the ALJ did not find plaintiff's subjective complaints of pain fully credible, he gave credence to some of plaintiff's subjective statements about her physical and mental limitations. Based on this RFC, the ALJ, with the help of a Vocational Expert ("VE"), determined plaintiff could not perform her past relevant work, but according to the VE, plaintiff can perform a significant number of jobs in the national economy.
C. Plantiff's Subsequent Award of Disability Benefits:
In addition to appealing the ALJ's unfavorable decision, plaintiff filed a subsequent disability application on September 6, 2000. Based on this application, defendant found that plaintiff was disabled, commencing August 16, 2000 — the day after the ALJ's unfavorable decision in this case. In this case, the Appeals Council was aware that plaintiff had been awarded benefits based on her September 6, 2000 application, but the Appeals Council nevertheless affirmed the ALJ's decision. Plaintiff cites to the Hearings, Appeals, and Litigation Law Manual (HALLEX) 1-4-2-30 and argues that the Appeals Council should have considered whether the additional evidence in the subsequent claim would have permitted a fully favorable decision in this claim. What plaintiff fails to realize is that HALLEX 1-5-3-17 states that the Appeals Council will consider a subsequent favorable decision when deciding whether to grant review of a case, but the plaintiff retains the burden of providing the Appeals Council with any additional information that she believes will be favorable to her case. There is no evidence that plaintiff provided the Appeals Council with any additional evidence to use when making its decision.
In sum, having carefully reviewed the record in this case and having considered plaintiff's arguments in light of the record, the Court concludes that substantial evidence supports defendant's decision to deny plaintiff's application for disability benefits and that no deviation from established legal standards occurred.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff's motion for judgment is denied and defendant's decision denying plaintiff disability benefits is affirmed.
IT IS SO ORDERED.