Opinion
Civil Action No: 00-2417-DJW
September 19, 2002
MEMORANDUM AND ORDER
Plaintiff seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of Defendant Commissioner of Social Security Administration (Commissioner) denying her application for supplemental security income benefits under Title XVI of the Social Security Act, as amended. The parties have filed their consent to jurisdiction by a U.S. Magistrate Judge, pursuant to 28 U.S.C. § 636(c)(1) and Fed.R.Civ.P. 73 (doc. 22). Plaintiff has filed her brief (doc. 15) seeking judicial review of the Commissioner's decision. Defendant Commissioner has filed a brief in opposition. (doc. 20) Plaintiff has also filed a reply brief (doc. 21).
The Court has reviewed the administrative record and the briefs of both parties. As set forth below, the Court reverses the decision of the Commissioner and remands the case back to the administrative law judge for further proceedings consistent with this decision.
I. Standard of Review
Pursuant to 42 U.S.C. § 405(g), a court may render "upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." The court reviews the decision of the Commissioner to determine whether the record as a whole contains substantial evidence to support the Commissioner's decision. The Supreme Court has held that "substantial evidence" is more than a scintilla and is that evidence that a reasonable mind might accept as adequate to support a conclusion. In reviewing the record to determine whether substantial evidence supports the Commissioner's decision, the court may neither reweigh the evidence nor substitute its discretion for that of the Commissioner. Although the court is not to reweigh the evidence, the findings of the Commissioner will not be mechanically accepted. Nor will the findings be affirmed by isolating facts and labeling them substantial evidence, as the court must scrutinize the entire record in determining whether the Commissioner's conclusions are rational. This determination entails a review of "the record as a whole, including whatever in the record fairly detracts from the weight of the [Commissioner's] decision." Evidence is not considered substantial "if it is overwhelmed by other evidence — particularly certain types of evidence (e.g., that offered by treating physicians) — or if it really constitutes not evidence but mere conclusion."
Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994).
Richardson v. Perales, 402 U.S. 389, 401-02, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).
Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000) (citing Casias v. Sec'y of Health Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)).
Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D.Kan. 1992).
Holloway v. Heckler, 607 F. Supp. 71, 72 (D.Kan. 1985).
Vogt v. Chater, 958 F. Supp. 537, 538 (D.Kan. 1997).
Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir. 1985) (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)).
The court also reviews the decision of the Commissioner to determine whether the Commissioner applied the correct legal standards. The Commissioner's failure to apply the proper legal standard may be sufficient grounds for reversal independent of the substantial evidence analysis. The court thus reviews the decision of the Commissioner to determine whether the record as a whole contains substantial evidence to support the Commissioner's decision and whether the correct legal standards were applied.
Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994).
Glass, 43 F.3d at 1395 (citing Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993)).
Hamilton v. Sec'y of Health Human Servs., 961 F.2d 1495, 1497 (10th Cir. 1992).
II. Procedural History
Plaintiff filed her most recent application for Supplemental Security Income (SSI) benefits on August 18, 1997. (Certified Tr. of the Record at 166-68, (doc. 9), hereinafter referred to as Tr.) She filed a previous application for SSI benefits on August 13, 1996 (Tr. 83-85), which was denied on October 30, 1996. (Tr. 79-82) No appeal of that application was made. On the current application, Plaintiff alleges that she became disabled, unable to work, and eligible to receive Social Security SSI benefits under Title XVI on May 31, 1996, due to insulin-dependent diabetes with neuropathy, right arm and wrist carpal tunnel syndrome, and eye problems. This application was denied on December 10, 1997. (Tr. 152-55)On January 13, 1999, an administrative law judge (ALJ) conducted a hearing on her claim. (Tr. 28-77) Plaintiff appeared in person with her attorney. (Tr. 28) On February 23, 1999, the ALJ issued his decision in which he found Plaintiff was not under a "disability" as defined in the Social Security Act at any time through the date of the decision. (Tr. 15-25) During step four of the five-part analysis, the ALJ determined that Plaintiff was unable to perform her past relevant work as a personal care attendant. (Tr. 22) However, during step five of the analysis, the ALJ found that, considering Plaintiff's age, educational background, and residual functional capacity, she is able to make a successful vocational adjustment to work that exists in significant numbers in the national economy, including work as a cashier, information clerk, and a ticker seller. (Tr. 24) Plaintiff's request for review of the ALJ's decision by the Appeals Council was denied on July 19, 2000. (Tr. 8-10) Thus, the findings of the ALJ stand as the final decision of the Commissioner in this case.
III. Factual Summary
Plaintiff testified she was age 39 at the time of the hearing. (Tr. 36) Thus, according to Social Security regulations, she is classified as a "younger individual." She has a tenth grade education (Tr. 36), which is considered having a limited education. She has no other formal education or training. (Tr. 36)
20 C.F.R. Part 404, Subpart P, App. 2.
Plaintiff's past work includes working as a personal care attendant for her handicapped boyfriend. (Tr. 37-38, 95, 177, 196) She claims her medical problems resulted in an inability to perform the duties and functions of her past work as a personal care attendant or any work. Plaintiff ceased all work activity on May 31, 1996, which is the alleged onset date of her disability. (Tr. 15, 83, 166)
IV. The ALJ's Findings
In his order of February 23, 1999, the ALJ made the following findings:
1. The claimant has not engaged in substantial gainful activity since February 1996.
2. The medical evidence establishes that the claimant has insulin dependent diabetes mellitus with neuropathy, status post right carpal tunnel syndrome with residuals from surgery with lens replacement, 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.
3. The claimant's statements concerning her impairments and their impact on her ability to work are not entirely credible.
4. The claimant retains the residual functional capacity to occasionally lift 20 pounds and frequently lift 10 pounds. She can stand or walk two hours in an eight hour day and sit six hours in an eight hour day but needs to alternate sitting and standing. She can occasionally climb ramps and stairs, stoop, twist, squat, kneel, and crawl. She cannot climb ropes, ladders, or scaffolding. She cannot perform rapid repetitive movements or operate hand controls with her right upper extremity, and she cannot perform rapid repetitive gripping with her right upper extremity. She should avoid concentrated exposure to temperature extremes and should avoid heights and hazardous moving machinery.
5. The claimant is unable to perform her past relevant work as health care provider.
6. The claimant is 39 years old, a "younger individual."
7. The claimant has a limited education.
8. The claimant has semi-skilled work experience.
9. Considering the claimant's age, educational background, and residual functional capacity, she is able to make a successful vocational adjustment to work which exists in significant numbers in the national economy. Such work includes employment as a cashier, an information clerk, and a ticker seller.
10. The claimant has not been under a disability, as defined in the Social Security Act at any time through the date of this decision.
(Tr. 23-24)
V. Plaintiff's Challenges to the Commissioner's Decision
Plaintiff challenges the decision of the Commissioner, denying her SSI benefits. Plaintiff contends that the ALJ lost his objective point of view, thereby committing several material errors of fact and law. As such, the Commissioner's decision was not based on substantial evidence of record, nor in accordance with applicable case law and social security regulations. Specifically, she contends that: (1) the ALJ failed to include the opinion of her treating physician in the residual functional capacity (RFC) determination and the ALJ's stated reasons for discrediting Dr. Greiner's opinion are neither legitimate nor supported by substantial evidence in the record, (2) the ALJ erred in adopting the testimony of the vocational expert because the three jobs identified by the expert are inconsistent with the RFC restrictions and the Dictionary of Occupational Titles, (3) the ALJ failed to make a specific credibility determination that was supported by substantial evidence in the record, and (4) the ALJ erred by finding Plaintiff can perform a "wide range of light work" given the RFC assessment and by failing to link the RFC assessment to medical evidence in the record. Plaintiff urges reversal with an immediate award of benefits, or, in the alternative, a remand of the case to the Commissioner so that the ALJ's errors can be corrected. The Commissioner submits that substantial evidence supports the ALJ's decision, and thus seeks an order affirming the decision.
VI. Analysis and Discussion A. Treating Physician's Opinion
The first argument addressed by the Court is Plaintiff's claim that the ALJ failed to include the opinion of her treating physician, Dr. Greiner, in the RFC determination and the ALJ's stated reasons for giving Dr. Greiner's opinion little weight are neither legitimate nor supported by substantial evidence in the record. In response, the Commissioner argues that the ALJ provided specific, legitimate reasons for discounting Dr. Greiner's opinion, and these reasons are supported by substantial evidence in the record.
"A treating physician may offer an opinion which reflects a judgment about the nature and severity of the claimant's impairments including the claimant's symptoms, diagnosis and prognosis, and any physical or mental restrictions." The RFC assessment must always consider and address medical source opinions. Medical opinions from treating sources about the nature and severity of an individual's impairments are entitled to special significance and may be entitled to controlling weight. The Commissioner will give controlling weight to the treating source's opinion on the nature and severity of an individual's impairments if it is well supported by medically-acceptable clinical and laboratory diagnostic techniques and if it is not inconsistent with other substantial evidence in the record. Although the ALJ may disregard the opinion of a treating physician if it is conclusory and unsupported by medical evidence, the ALJ must articulate "specific, legitimate reasons" for doing so.
Castellano, 26 F.3d at 1029; See also 20 C.F.R. § 416.927(a)(2).
SSR 96-8p, 1996 WL 374184, at *7.
Id.
Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987).
In his statement dated January 4, 1999, K. Allen Greiner, M.D., reported that he had treated Plaintiff for three years, serving as her primary care physician for general health maintenance and for treatment of emergent and urgent difficulties. Dr. Greiner opined in his letter that:
Ms. Herbert has several medical problems that cause ongoing difficulties. She has difficult to control diabetes mellitus, which requires high doses of insulin therapy. Her diabetes frequently leaves her with very high or very low blood sugars, resulting in difficulty functioning actively. She also has multiple complications from her diabetes including; chronic peripheral neuropathy (nerve pain in hands and lower legs), frequent urinary and skin infections, chronic mild renal insufficiency, visual problems, gastroparesis (poor stomach and bowel motility). In addition, Ms. Herbert sustained an injury to the right arm this last year requiring surgery and permanently damaging the nerves to her right hand, leaving her with numbness and weakness in the medial right hand.
The severity of Ms. Herbert's medical problems makes it likely that she will continue to have worsening of complications in the future. Since her diabetes is hard to control even using insulin shots she will progress to have loss of eyesight, loss of kidney function, continual infections and hospitalizations with eyesight and kidney function completely gone in a five year time frame. I believe she will be unable to perform in a work environment because of these problems. She cannot sustain employment because [she] has so many complications due to blood sugar abnormalities and other symptomatic problems. I do not feel that she has a drug problem, nor do I feel that past drug use is in some way affecting her ability to work.
Ms. Herbert has trouble with her treatment regimen because it is very complicated and she has minimal skills with literacy and comprehension. She also has limited support through family and friends.
(Tr. 393)
The ALJ, in his decision, acknowledged Dr. Greiner's January 4, 1999 letter. (Tr. 19) He then provided the following reasons why he gave Dr. Greiner's opinion little weight:
Dr. Greiner has not opined that the claimant's current condition prevents her from working. His opinion is given little weight because he noted the claimant did not have a drug problem and her past drug use did not affect her ability to work. He also noted she has difficulty with literacy and comprehension which complicates her compliance; however, the undersigned finds the medical record shows that control of the claimant's blood sugars was quickly obtained when she was hospitalized or seen in the emergency room. Furthermore, there is evidence that she has a support group who can identify the symptoms of hypoglycemia even when masked with alcohol and cocaine use and attempt to administer appropriate treatment.
(Tr. 21-22)
The Court determines that the ALJ has articulated specific reasons for giving Dr. Greiner's opinion little weight. However, the Court finds that the articulated reasons are either not legitimate reasons for discounting Dr. Greiner's entire opinion concerning Plaintiff's diabetes or they are not supported by substantial evidence in the record.
The ALJ's primary reason for discounting Dr. Greiner's opinion is based upon Dr. Greiner's statements that he believes Plaintiff does not have a drug problem and her past drug use does not affect her ability to work. Evidently, the ALJ disagreed with Dr. Greiner's opinion regarding whether Plaintiff had a drug problem. The ALJ's mere disagreement with the doctor's opinion as to whether Plaintiff has a drug problem, especially in light of the timing of Dr. Greiner's letter, is not a legitimate reason for discounting Dr. Greiner's entire opinion concerning her diabetes and its complications and limitations.
It is undisputed that Plaintiff has a history of drug usage, including four instances between September 1997 and October 1998 in which Plaintiff tested positive for cocaine during her emergency room visits. (Tr. 258, 277, 298, 328) However, Plaintiff's last documented drug use was in October 1998. This coincides with Plaintiff's testimony, at the January 1999 hearing, that she last used cocaine three months prior. Thus, at the time Dr. Greiner's letter was written, in January 1999, Plaintiff, by all indications in the record, was not using drugs. The Court, therefore, determines that the ALJ's reliance on Dr. Greiner's statement that he believed Plaintiff does not have a drug problem and her past drug use does not affect her ability to work is not a legitimate reason for discounting Dr. Greiner's entire opinion concerning Plaintiff's diabetes and its complications and limitations.
The ALJ's second stated reason for discounting Dr. Greiner's opinion is based upon Dr. Greiner's statement that Plaintiff has difficulty complying with her treatment regime due to her minimal literacy and comprehension abilities. The ALJ discounts Dr. Greiner's opinion because he found that the medical record shows that Plaintiff's blood sugar level was quickly controlled when she was hospitalized or treated in the emergency room. Contrary to the ALJ's suggestion, the Court finds that Plaintiff's history of poor compliance, along with the fact that her blood sugar level is quickly controlled when she is hospitalized or treated in the emergency room, tends to support Dr. Greiner's opinion that her noncompliance is due to her minimal literacy and comprehension skills. A logical inference is that the reason why Plaintiff's blood sugar is quickly controlled while she is in the hospital is because trained medical professionals, who assumably have good literacy and comprehension skills, are the ones administering the diabetes treatment regime. The Court, therefore, concludes that the ALJ's reliance on the fact that Plaintiff's blood sugar level was quickly controlled when she was hospitalized or treated in the emergency room does not provide a legitimate reason for giving little weight to Dr. Greiner's entire opinion.
The ALJ's final stated reason for his decision to give Dr. Greiner's opinion little weight was based upon Dr. Greiner's statement that Plaintiff has a limited support network. The ALJ apparently disagreed with Dr. Greiner, finding that Plaintiff did have a "support group who can identify the symptoms of hypoglycemia even when masked with alcohol and cocaine use and attempt to administer appropriate treatment." (Tr. 22) The Court is uncertain as to what support network the ALJ is referencing in his decision. As the Court finds no indication in the record of a support network like the one described by the ALJ, the Court cannot conclude that substantial evidence in the record supports this reason for discounting Dr. Greiner's opinion.
Based upon these facts, the Court finds that the ALJ's articulated reasons for giving little weight to Dr. Greiner's entire opinion concerning Plaintiff's diabetes and its complications and restrictions are either illegitimate reasons or are not supported by substantial evidence in the record. The case is reversed and remanded to the Commissioner for further proceedings in which the opinion of Dr. Greiner is given controlling weight.
B. Vocational Expert's Testimony
Plaintiff next argues that the ALJ improperly relied upon the vocational expert's testimony that she could perform jobs such as cashier, information clerk, or ticket seller because that testimony conflicts with the Dictionary of Occupational Titles (DOT) and its companion volume, Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SC). Plaintiff asserts that two of the jobs identified by the vocational expert, cashier and ticket seller, require frequent reaching, handling, and fingering according to the SC. Given these physical demands, Plaintiff asserts it was illogical for the ALJ to find that Plaintiff could perform these two jobs given the RFC dominant right-hand limitations on rapid, repetitive gripping, use of hand controls, and repetitive pushing or pulling. In response, the Commissioner only argues that the Plaintiff does not argue that the third job identified by the vocational expert, information clerk, would be precluded by her dominant right hand restrictions.
In a case like this one, where the claimant's ability to do the full range of light or sedentary work is limited due to some restriction, "the ALJ must cite examples of occupations or jobs the individual can do and provide a statement of the incidence of such work in the region where the individual lives or in several regions of the country." At step five, by regulation, when the agency determines that unskilled, sedentary, light, and medium jobs exist in the national economy in significant numbers, the Commissioner will take administrative notice of reliable job information available from various governmental and other publications, including the DOT. Although the ALJ decides whether to employ the services of a vocational expert, "nothing prevent[s] counsel from challenging the expert's figures and conclusions with data available from other, administratively noticed publications, which is a recognized means of discrediting expert vocational testimony."
Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999) (quoting SSR 96-9p, 1996 WL 374185, at *5).
Gay v. Sullivan, 986 F.2d 1336, 1340 n. 2 (10th Cir. 1993).
In Haddock v. Apfel, the Tenth Circuit addressed the ALJ's duty when the vocational expert's testimony at step five conflicts with information provided in the DOT or other reliable publications. The Court held that if there is any conflict between the testimony of the vocational expert and the descriptions of jobs listed in the DOT, "the ALJ must investigate and elicit a reasonable explanation for any conflict before the ALJ may rely on the expert's testimony as substantial evidence to support a determination of disability."
Haddock, 196 F.3d at 1091.
Id.
In the RFC assessment, the ALJ found that Plaintiff "cannot perform rapid repetitive movements or operate hand controls with her right upper extremity and she cannot perform rapid repetitive gripping with her right upper extremity." (Tr. 22) At the hearing, the ALJ's included this restriction in his first hypothetical to the vocational expert:
We have a hypothetical claimant who's . . . 37 to 39 years of age with less than a high school education but literate, able to read, write, make change, has past work similar to that of Ms. Herbert and impairments include Insulin dependent diabetes. . . . List neuropathy, both the upper and lower extremities. She's had post-cataract surgery with lense replacement. Medical evidence of record indicates that her vision is correctable to sufficient to obtain a driver's license. . . . She stands post right departments [sic] with surgery, . . . . [with] residual numbness and weakness in the right upper extremity on account of that. On account of these impairments, my hypothetical claimant is limited to a max lift of 20 pounds, occasional, 10 pounds more frequently, we'll say five to ten pounds more frequently. She's limited to a max period of standing and walking, a combined two hours out of eight. She can sit up to six hours in an eight hour period and should have the option to sit or stand to do work if she's in a mobilized captive type position. . . . Posturals of stooping, twisting, squatting, kneeling and crawling limit those to occasional only. She should not engage in climbing of ropes, ladders, or scaffolding. No more than occasional climbing of ramps or stairs due to her feet. No rapid, repetitive use of hand controls with the dominant right upper extremity. No rapid, repetitive gripping with the dominant right upper extremity and I'm going to say no repetitive push/pull with the right upper extremity. So, the, the left upper extremity is preserved. On account of her hypoglycemic problems, she needs to avoid unprotected heights, needs to avoid hazardous moving machinery. She need to avoid concentrated exposure to hot, humid and cold conditions. . . .
(Tr. 71-72) (emphasis added).
In response, the vocational expert testified that this hypothetical claimant could not do the past work of Plaintiff as a health care attendant. (Tr. 73) The vocational expert, however, testified that the hypothetical claimant could work as (1) a cashier in a cafeteria, movie theater or theme park, (2) an information clerk, or (3) a ticket seller. (Tr. 73) The ALJ apparently adopted the vocational expert's opinion regarding the types of jobs Plaintiff could perform because he listed those jobs in his decision. (Tr. 23)
From the Court's review of the publication Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles, the position of cashier (DOT Code 211.462-010 or 211.362-010) requires frequent reaching, handling, and fingering as physical demands of the occupation. The position of ticket seller (DOT Code 211.467-020) requires an even higher degree of constant reaching, handling, and fingering. According to Appendix C of the SC, a frequent physical demand component is defined as existing from one-third to two-thirds of the time while constant is defined as existing two-thirds or more of the time. Based upon this information, Plaintiff's dominant right-arm RFC restrictions on rapid, repetitive use of hand controls, gripping and pushing and pulling appear to conflict with the physical demands of cashier or ticket seller. Thus, the vocational expert's testimony appears to conflict with the description of the jobs in the DOT and SC.
U.S. Dep't. of Labor, Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (1993) at 333 (emphasis added).
Id. (emphasis added).
Id. at App. C.
While a conflict between the jobs identified by the vocational expert and the DOT does not automatically result in the DOT trumping the vocational expert's testimony, the ALJ must explain the conflict prior to adopting the vocational expert's testimony. In this case, nothing in the ALJ's decision indicates that he investigated or elicited a reasonable explanation for the apparent conflict between the vocational expert's identification of jobs and the DOT and SC. Because the ALJ failed to investigate and elicit a reasonable explanation for the conflict with the DOT and S.C. as required by Haddock, the ALJ is not permitted to rely on the vocational expert's testimony as substantial evidence to support his finding that Plaintiff is capable of performing the jobs of cashier and ticket seller.
Haddock, 196 F.3d at 1091.
Id.
The Commissioner argues that even if the DOT conflicts with two of the three jobs identified by the vocational expert, Plaintiff could still perform the third job listed, information clerk. An information clerk job (DOT Code 237.367-022) is classified as sedentary work and lists only occasional reaching and handling with fingering not being present. As a sedentary job, "any significant manipulative limitation of a claimant's ability to handle and work with small objects with both hands will result in a significant erosion of the unskilled sedentary occupational base." Given the reaching and handling demands of the sedentary information clerk job and Plaintiff's dominant right-hand restrictions, the Court cannot conclude that the vocational expert's testimony that Plaintiff is capable of performing the job of information clerk is consistent with the DOT.
Selected Characteristics at 336 (emphasis added).
SSR 96-9p, 1996 WL 374185, at *7 (emphasis added).
Furthermore, even if the vocational expert's testimony was found to be consistent with the DOT, it is unclear whether the ALJ would have reached the same conclusion if the only job Plaintiff could perform was information clerk. The Court, therefore, reverses and remands this case for a determination of whether there is substantial gainful work within the Plaintiff's RFC. To make this determination, the ALJ needs to consult a vocational expert and evaluate the expert's opinion to make sure the identified jobs are within Plaintiff's RFC and consistent with the DOT and SC. If they are not consistent, then the ALJ shall address and explain any inconsistency before adopting the vocational expert's testimony.
C. Credibility Determination
Plaintiff next argues that the ALJ erred in assessing her credibility. In particular, she asserts that (1) the ALJ failed to make a specific credibility determination adequately stating what portions of her testimony he found not credible, (2) the ALJ's stated reasons for finding her not credible are not supported by the record, and (3) the ALJ either fails to consider or incompletely considers several factors in his assessment of her credibility. In response, the Commissioner contends that the ALJ properly considered the following factors in assessing Plaintiff's credibility: her prior poor work record, reported daily activities, and inconsistent statements about whether she was testing her blood sugars and following her prescribed diabetic diet and regime and whether she was using drugs.
Generally, credibility determinations are the province of the ALJ, "the individual optimally positioned to observe and assess witness credibility." Because the court recognizes that some claimants exaggerate symptoms for the purpose of obtaining government benefits, deference to the fact-finder's assessment of credibility is the general rule, although deference is not absolute. Thus, a court will not upset credibility determinations when supported by substantial evidence. The ALJ must link his credibility finding to substantial evidence by explaining why the specific evidence led him to conclude the claimant's subjective complaints were not credible. These findings should be "closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings." In assessing credibility, the ALJ considers the entire record, "including the objective medical evidence, the individual's own statements about symptoms, statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence in the case record." The final decision must list the specific reasons for the credibility finding, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and subsequent reviews the weight and the reason for the weight given to the individual's statements. The issue before the Court is whether the ALJ made a specific credibility determination, whether his stated reasons for finding Plaintiff not credible are supported by substantial evidence in the record, and whether the ALJ failed to consider several factors in his assessment of Plaintiff's credibility.
Adams v. Chater, 93 F.3d 712, 715 (10th Cir. 1996) (quoting Casias, 933 F.2d at 801).
Thompson, 987 F.2d at 1490; Frey v. Bowen, 816 F.2d 508, 517 (10th Cir. 1987).
Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995) (quoting Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)).
Kepler, 68 F.3d at 391.
Id. (quoting Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988) (footnote omitted)).
SSR 96-7p, 1996 WL 362209, at *34484.
Id. at *34486.
1. Whether the ALJ made a specific credibility determination
Initially, Plaintiff contends that the ALJ failed to make a specific credibility determination. She argues that the ALJ made inconsistent statements regarding her credibility in his decision. In the Evaluation of the Evidence section of his decision, the ALJ states that "[Plaintiff's] statements concerning her impairments and their impact on her ability to work are not credible." But in the Findings section of his decision the ALJ states that "[Plaintiff's] statements concerning her impairments and their impact on her ability to work are not entirely credible." Plaintiff contends that this inconsistency renders it impossible for a reviewing court to determine whether the ALJ found Plaintiff not credible or only partially credible. If the ALJ found her statements concerning her impairments only partially credible, Plaintiff argues that he then erred by failing to sufficiently specify the portions of Plaintiff's testimony he found not credible.
The Court agrees with Plaintiff that the ALJ's decision, which states in one section that "claimant's statements concerning her impairments and their impact on her ability to work are not credible" and states in another section that Plaintiff's statements are "not entirely credible," is inconsistent and unclear. This inconsistency renders it impossible for the Court to determine whether the ALJ found Plaintiff's statements concerning her impairments and their impact on her ability to work not credible or only partially credible. If the ALJ found Plaintiff only partially credible, as stated in his Findings, then he failed to identify specifically what portions of her statements he found not credible. Without a specific credibility determination, the Court is left to speculate as to which credibility statement the ALJ meant to state in his decision. The Court determines that a remand is necessary so that the ALJ can clarify whether he found Plaintiff's statements concerning her impairments and their impact on her ability to work not credible or only partially credible. If he found her testimony partially credible then he needs to identify what portions of the testimony he found not credible and give reasons for his decision.
2. Whether substantial evidence supports the ALJ's credibility findings
Notwithstanding the fact that the Court is unable to determine whether the ALJ found Plaintiff not credible or only partially credible, the Court will address Plaintiff's next argument that substantial evidence in the record does not support the ALJ's stated reasons for finding Plaintiff's statements concerning her impairments and their impact on her ability to work not credible or not entirely credible. In particular, she argues that the ALJ's reliance on her alleged poor compliance with her diabetes treatment regime, her inconsistent statements as to whether she used drugs and alcohol, and a brief statement in the medical record suspecting her of being a cocaine dealer are not supported by substantial evidence in the record.
In his decision, the ALJ stated the following reasons for his credibility determination:The claimant testified she is [sic] uses her insulin daily, however, the medical evidence of record shows frequent episodes of hyperglycemia requiring emergency room care and frequent reports to her physician that she was out of insulin and had not taken it. She declined further examination for her complaints of leg pain when she learned she could not get Valium. She is quite inconsistent in her reports of alcohol and cocaine use, and was suspected of being a cocaine dealer by one treating source. Her use of cocaine has been confirmed by urine drug screen despite her denial of any use. Dr. Gladden noted on October 8, 1998, the claimant's glycohemoglobin level was indicative of her poor control despite her protests that she had good control of her blood sugar. (Tr. 21)
The ALJ remarked that Plaintiff's testimony that she uses her insulin daily was inconsistent with her medical history of frequent episodes of hyperglycemia requiring emergency room care and frequent reports to her physician that she was out of insulin and had not taken it. The Court has reviewed the medical record and determines that substantial evidence supports the ALJ's first stated reason for finding Plaintiff not credible. Plaintiff stated at the hearing that she never misses her insulin. (Tr. 53) However, her medical record has many documented emergency room visits, including twelve visits for hypoglycemic or hyperglycemic episodes between May 1997 and October 1998. (Tr. 198, 208, 222, 228-30, 234-38, 253-54, 265-67, 271-73, 274-76, 310-13, 319-21, 329-32) On November 11, 1997, the University of Kansas Medical Center (UKMC) examination notes indicate that Plaintiff states she will not do finger stick blood sugars at home and that she has been in the emergency room three to four times in last three months. (Tr. 312) The treating clinical care manager noted that noncompliance and follow-up treatments remain an issue for Plaintiff. (Tr. 312) During Plaintiff's June 3, 1998 emergency room visit, the UKMC attending staff physician reported that "[Plaintiff] does not monitor her blood sugars at home and has appeared in the past to have very little interest in keeping her diabetes under good control." (Tr. 281) On October 6, 1998, the UKMC staff physician noted that Plaintiff's history and physical was limited by her uncooperativeness and desire not to elaborate on the questions asked. (Tr. 329) She reported that she had taken her blood sugar at home and it had measured out to about 1100; she later, upon further questioning, denied this. (Tr. 329) The report documented that Plaintiff stated she had been taking her prescribed insulin dose but admitted she had not been taking it consistently. (Tr. 329)
Accordingly, the Court finds that the ALJ's decision provided specific reasons for his finding her statements concerning her impairments and their impact on her ability to work either not credible or not entirely credible. Furthermore, one of the ALJ's stated reasons, Plaintiff's inconsistent statements regarding her compliance with her diabetes treatment regime, is supported by substantial evidence in the record. As the Court finds that substantial evidence in the record supports one of the ALJ's stated reasons for finding Plaintiff either not credible or not entirely credible, the Court need not address Plaintiff's remaining arguments why substantial evidence does not support the ALJ's credibility decision.
3. Whether the ALJ failed to consider or improperly considered credibility factors
Plaintiff's final credibility argument is that the ALJ failed to consider or improperly considered several credibility factors, including precipitating and aggravating factors, other treatment received for symptoms, and any other factors concerning functional limitations and restrictions.
In addition to medical evidence, the ALJ considers the following factors in assessing an individual's credibility as to his or her reported symptoms:
1. Daily activities;
2. The location, duration, frequency, and intensity of pain or other symptoms;
3. Precipitating and aggravating factors;
4. The type, dosage, effectiveness, and side effects of any medication taken to alleviate pain or other symptoms;
5. Treatment, other than medication, received for relief of pain or other symptoms;
6. Any measures used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the functional limitations and restrictions due to pain or other symptoms. While Plaintiff argues that the ALJ recited the credibility factors but then proceeded to ignore three of them, she does not identify what precipitating and aggravating factors and other treatments she received that the ALJ failed to consider in his credibility assessment. Plaintiff cites Thompson v. Sullivan for the proposition that the ALJ must consider all of the factors in determining the credibility of Plaintiff's testimony. However, in Thompson, the Tenth Circuit held that "there is not a talismanic requirement that each factor [for determining the credibility of a claimant's pain testimony] be addressed but [the Hargis] case sets out generally the kinds of factors that should ordinarily be considered."
Contrary to Plaintiff's suggestion, the ALJ is not required to discuss evidence relating to each and every factor set forth in 20 C.F.R. § 404.929(c)(3) in assessing an individual's credibility as to reported symptoms. While the ALJ is required to consider all these factors, this consideration does not entail a factor-by-factor detailed, narrative discussion. In his decision, the ALJ appropriately set forth sufficient reasons for his credibility determination. The ALJ, therefore, did not error by failing to expressly address all of the credibility factors set forth in 20 C.F.R. § 404.929(c)(3).
Id. at *34485; 20 C.F.R. § 416.929(c)(3).
987 F.2d 1481, 1490 (10th Cir. 1993).
Id. (citing Hargis v. Sullivan, 945 F.2d 1482, 1489 (10th Cir. 1991)).
D. Residual Functional Capacity Determination
Plaintiff's final set of arguments relate to the ALJ's RFC determination. Specifically, whether the ALJ erred by including the statement Plaintiff can perform a "wide range of light work" in his RFC determination and whether the ALJ failed to link the RFC determination with specific evidence in the record.
1. Whether the ALJ erred in finding Plaintiff can perform a "wide range of light work" given his RFC determination
Plaintiff claims that the ALJ's assessment of her RFC is misleading and suggests a greater capacity for work than she actually possesses. She argues that the ALJ's conclusion that she can perform a "wide range of light work" is internally inconsistent with the other limitations and restrictions included in the RFC determination. In particular, Plaintiff claims that the ALJ's RFC finding that Plaintiff needs to alternate sit and stand positions and her dominant right-hand restrictions on rapid, repetitive movements, operating hand controls, and gripping eliminate most of the jobs in the light and sedentary work categories.
In this case, the ALJ determined that Plaintiff had the following RFC:
[C]laimant retains the residual functional capacity to occasionally lift 20 pounds and frequently lift 10 pounds. She can stand or walk two hours in an eight hour day and sit six hours in an eight hour day but needs to alternate sitting and standing. She can occasionally climb ramps and stairs, stoop, twist, squat, kneel, and crawl. She cannot climb ropes, ladders, or scaffolding. She cannot perform rapid repetitive movements or operate hand controls with her right upper extremity and she cannot perform rapid repetitive gripping with her right upper extremity. She should avoid concentrated exposure to temperature extremes and should avoid heights and hazardous moving machinery. Thus, the undersigned [ALJ] finds the claimant can perform a wide range of "light" work ( 20 C.F.R. § 416.967).
(Tr. 22)
Plaintiff claims that the two-hour limitation on standing or walking in an eight-hour day is inconsistent with the ALJ's conclusion that she can perform a wide range of light work because, under the regulations, relatively few jobs in the light work category are performed in the seated position. She additionally argues that the dominant right-arm restrictions on rapid, repetitive movements, operating hand controls, and rapid, repetitive gripping further reduce her capacity to do even sedentary work.
The Commissioner concedes that the ALJ mistakenly suggested that Plaintiff could perform a wide range of light work but argues that remand is not necessary because the ALJ did not rely on the Medical-Vocational Guidelines (grids) nor did he include his statement that Plaintiff could perform a "wide range of light work" in the hypothetical presented to the vocational expert. Thus, the Commissioner argues, the ALJ's statement that Plaintiff could perform a "wide range of light work" is harmless error.
Because the parties basically agree that the ALJ erred in concluding Plaintiff can perform a "wide range of light work" given the ALJ's other RFC restrictions, the Court does not address this issue, but rather focuses on whether the ALJ's error of including the statement that Plaintiff can perform a "wide range of light work" is harmless error.
Here, the ALJ appropriately consulted the vocational expert, who opined as to what jobs Plaintiff could perform with the alternate sit/stand option and restrictions on rapid, repetitive movements, operating hand controls, and gripping with her dominant right hand. While the ALJ stated in his decision that Plaintiff can perform a "wide range of light work," the ALJ did not include this parameter in this hypothetical question to the vocational expert. Accordingly, his ultimate conclusion that Plaintiff was able to make an adjustment to other work that exists in the local economy does not appear to be based upon Plaintiff's being able to perform a "wide range of light work." The ALJ's inclusion of the statement that Plaintiff can perform a "wide range of light work" in his RFC determination is therefore harmless error.
While ordinarily the Court declines to remand for harmless error, the Court concludes that because other errors exist in the ALJ's decision that require remand, this point should be remanded for the ALJ to re-evaluate his inclusion of the statement that Plaintiff can perform a "wide range of light work" in his assessment of Plaintiff's RFC.
2. Whether the ALJ linked the RFC determination to specific evidence in the record
Plaintiff further claims that the ALJ erred by failing to link the RFC assessment to specific evidence in the record. She argues that the ALJ did not cite to any medical evidence to document the RFC determination. She also contends that the ALJ's RFC analysis is not consistent with the requirements of SSR 96-8p, requiring the ALJ to include a specific narrative discussion describing how the evidence supports each conclusion and provide appropriate rationale for the limitations set forth in the RFC assessment.
Social Security Ruling 96-8p provides guidance on assessing a claimant's RFC. It sets forth the requirement that, in arriving at a RFC determination, an ALJ must provide a "narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities and observations)." The ALJ must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence of the case record were considered and resolved.
SSR 96-8p, 1996 WL 374184, at *7.
Id.
Id.
In his decision, the ALJ set forth his assessment of Plaintiff's RFC. He, however, failed to cite any specific medical facts or non-medical evidence that would indicate where he derived the specific RFC limitations and restrictions. He also failed to include a specific narrative discussion describing how the evidence supports each conclusion or provide any rationale for the limitations set forth in the RFC assessment. Although the ALJ's decision states that he considered Plaintiff's subjective allegations in assessing her RFC (Tr. 20), he, earlier in the decision, discounts her credibility regarding her statements concerning her impairments and their impact on her ability to work. (Tr. 21) The Court, therefore, holds that the ALJ's assessment of Plaintiff's RFC fails to comply with the requirements of SSR 96-8p. The case should be remanded so that the ALJ can indicate what facts and evidence he relied upon in deriving Plaintiff's RFC. Upon remand, the ALJ should also include a specific narrative discussion describing how the evidence supports each conclusion, citing specific medical facts and non-medical evidence.
VII. Conclusion
After careful consideration of the record and the parties' arguments, the Court concludes that this action should be remanded for further proceedings. On remand, the Commissioner shall give controlling weight to the opinion of Plaintiff's treating physician, Dr. Greiner. In addition, any conflict between the testimony of the vocational expert and the descriptions of jobs listed in the Dictionary of Occupational Titles, and its companion volume, Selected Characteristics of Occupations Listing in the Revised Dictionary of Occupational Titles, should be addressed and explained before the Commissioner adopts the expert's opinion as to the jobs Plaintiff could perform at step five. In assessing Plaintiff's credibility, the Commissioner shall clarify whether he found Plaintiff's statements concerning her impairments and their impact on her ability to work not credible or only partially credible. If Plaintiff is found to be only partially credible, then those portions that are not credible should be adequately identified and explained. Finally, the Commissioner shall re-evaluate the inclusion of the statement that Plaintiff can perform a "wide range of light work" in the ALJ's assessment of Plaintiff's RFC and indicate the particular facts and evidence he relied upon in deriving Plaintiff's individual RFC limitations. The ALJ should also include a specific narrative discussion describing how the evidence supports each conclusion, citing specific medical facts and non-medical evidence.
IT IS THEREFORE ORDERED that the decision of the Commissioner denying Plaintiff benefits is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings consistent with this opinion. Such decision will dispose of this case, including Plaintiff's Complaint (doc. 1), which has been considered a petition for review.
IT IS SO ORDERED.