Opinion
No. 1:02cv32-T
August 1, 2002
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the court upon plaintiff's Motion for Summary Judgment and the Commissioner's Motion for Summary Judgment. Having carefully considered those motions and reviewed the pleadings, the undersigned enters the following findings, conclusions, and recommendation.
FINDINGS AND CONCLUSIONS
I. Administrative History
On May 14, 1999, plaintiff filed an application for disability insurance benefits. In that application, she alleged that she became unable to work on July 31, 1985, due to back pain. Plaintiff's date last insured was March 31, 1995. Her claim was denied initially and upon reconsideration. She then requested a hearing before an administrative law judge ("ALJ"), and that hearing was conducted on February 25, 2000. The decision of the ALJ issued on March 23, 2000, and plaintiff was found not disabled at any relevant time because she retained the residual function capacity to perform her past relevant work as a medical clerk and receptionist, which are jobs at the sedentary exertional level. On January 2, 2002, the Appeals Council denied plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner.
II. Factual Background
It appearing that the ALJ's findings of fact are supported by substantial evidence, the undersigned adopts and incorporates them herein as if fully set forth. In order to aid further review, those findings are summarized below.
In 1983, plaintiff worked as a nursing assistant and injured her back while lifting a patient. Her injury was treated conservatively, and she returned to work as a receptionist later that year. There are no further medical records until December 1989, when plaintiff presented at an emergency room complaining of back spasms, but lumbar spine x-rays taken that day were negative. Notes between 1992 and 1995 from plaintiff's treating family physician indicate she had complaints of recurrent low back pain, radiating into the left leg. Her doctor ordered an MRI, but she was unable to complete the procedure, and she was prescribed Orudis and Darvocet for inflammation and pain.
In 1993, plaintiff also sought treatment by a neurologist for the same symptoms plus a burning pain in her left leg, but no weakness. A myleogram revealed a herniated disc, with nerve root compression. The neurologist noted that plaintiff was in no apparent distress, there were no deformities of the extremities, she had a weakly positive straight leg raising sign on the left at 45 degrees, tenderness to palpation in the lower lumbar spine, 5/5 motor strength in upper and lower extremities, and diminished sensory testing in the L5-s1 distribution. The neurologist recommended a microlumbar diskectomy, which she refused because the outcome did not sound encouraging.
The record indicates that plaintiff next visited a physician some 21 months later in November 1994 for a reaction to allergy testing. No mention was made of symptoms or pain secondary to her back injury. The following month, plaintiff had call-in-prescriptions for Darvocet and Xanax (an anxiety medication). The record does not contain any additional doctor visits until after her insured period closed in March 1995. In February 1996, plaintiff slipped and fell, and she reported that her back symptoms significantly increased. Plaintiff underwent back surgery in 1997.
In addition to the medical evidence, the ALJ also considered plaintiff's daily activities in considering whether her anxiety created any functional limitations. She reads regularly and accompanies her husband to the grocery store. The ALJ also noted the August 1999 opinion of plaintiff's second neurologist, Dr. Keith Maxwell, that she was permanently disabled and could not work. The ALJ noted that Dr. Maxwell first saw plaintiff in November 1996, more than a year after her insured status expired, and that his conclusion was based on her current level of functioning, not her functioning on or before March 31, 1995. Closer review of the medical evidence by this court reveals that Dr. Maxwell reported in August 1998 that plaintiff walked as far as three miles per day, without having to rest. See Admin. Trans., at 153. Between January 1985 and July 1995, plaintiff sought treatment for back pain on only seven occasions.
The ALJ determined that plaintiff's testimony concerning the disabling nature of her pain was not fully credible, determined at the fourth step of the sequential- evaluation process that she was not disabled, and found that she was capable of performing her past relevant work as a medical receptionist/clerk, which was a job performed at the sedentary level of exertion.
III. Standard of Review
The only issues on review are whether the Commissioner applied the correct legal standards and whether the Commissioner's decision is supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 390 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Review by the undersigned is not de novo, as plaintiff suggests in her brief, Smith v. Schwieker, 795 F.2d 343, 345 (4th Cir. 1986); rather, inquiry is limited to whether there was "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," Richardson v. Perales, supra. Even if the undersigned were to find that a preponderance of the evidence weighed against the Commissioner's decision, the Commissioner's decision would have to be affirmed if supported by substantial evidence. Hays v. Sullivan, supra.
IV. The Correct Legal Standard
Reflected in S.S.R. 96-8p, the correct standard for evaluating claims based on pain is set forth explicitly in the appellate court's decision in Hyatt v. Sullivan, 899 F.2d 329 (4th Cir. 1990) (Hyatt III), in which the court held, as follows:
Once an underlying physical or mental impairment that could reasonably be expected to cause pain is shown by medically acceptable objective evidence, such as a clinical or laboratory diagnostic techniques, the adjudicator must evaluate the disabling effects of a disability claimant's pain, even though its intensity or severity is shown only by subjective evidence. If an underlying impairment capable of causing pain is shown, subjective evidence of the pain, its intensity or degree, can, by itself, support a finding of disability. Objective medical evidence of pain, its intensity or degree (i.e., manifestations of the functional effects of pain such as deteriorating nerve or muscle tissue, muscle spasm, or sensory or motory disruption), if available, should be obtained and considered. Because pain is not readily susceptible of objective proof, however, the absence of objective medical evidence of the intensity, severity, degree or functional effect of pain is not determinative.
Id. at 336. SSR 96-8p correctly provides that the assessment of residual functional capacity must be based upon all of the relevant evidence, considering all allegations of physical and mental limitations or restrictions. When allegations of physical and mental limitations or restrictions are made, the ALJ is to consider each function separately in making an assessment of residual functional capacity. SSR 96-8p.
The ALJ is obligated to consider only those limitations or restrictions which are alleged and/or based upon relevant evidence. When there is no allegation of a physical or mental limitation or restriction of a specific functional capacity, and no information is found in the record that there is such a limitation or restriction, the adjudicator must consider the individual to have no limitation or restriction with respect to that functional capacity. In his decision, the ALJ set forth and applied the Hyatt III standard and SSR 96-8p and specifically considered plaintiff's pain and anxiety separately. As discussed above, the record reveals that the ALJ recognized and applied the correct legal standard in evaluating this particular plaintiff's subjective claims of pain.
V. Substantial Evidence
A. Introduction
The undersigned has read the transcript of plaintiff's administrative hearing, closely read the decision of the ALJ, and reviewed the extensive exhibits contained in the administrative record. The issue is not whether the undersigned might have reached a different conclusion had he been presented with the same testimony and evidentiary materials, but whether the decision of the ALJ is supported by substantial evidence. The undersigned finds that it is.
B. Sequential Evaluation
A five-step process, known as "sequential" review, is used by the Commissioner in determining whether a Social Security claimant is disabled. The Commissioner evaluates a disability claim under Title II pursuant to the following five-step analysis:
1. An individual who is working and engaging in substantial gainful activity will not be found to be "disabled" regardless of medical findings;
2. An individual who does not have a "severe impairment" will not be found to be disabled;
3. If an individual is not working and is suffering from a severe impairment that meets the durational requirement and that "meets or equals a listed impairment in Appendix 1" of Subpart P of Regulations No. 4, a finding of "disabled" will be made without consideration of vocational factors;
4. If, upon determining residual functional capacity, the Commissioner finds that an individual is capable of performing work he or she has done in the past, a finding of "not disabled" must be made;
5. If an individual's residual functional capacity precludes the performance of past work, other factors including age, education, and past work experience, must be considered to determine if other work can be performed.
20 C.F.R. Part 404.1520(b)-(f). In this case, the Commissioner determined plaintiff's claim at the fourth step of the sequential-evaluation process.
C. The Administrative Decision
Plaintiff correctly points out that the ALJ erred in determining that plaintiff sought medical treatment on only five occasions during the relevant period, but is incorrect in asserting that the real number was 10. The administrative record reveals notes of seven doctor visits by plaintiff for back pain between January 1985 and July 1995, and one such note was not a part of the record when the decision issued. Thus, the ALJ was off by only one visit, which this court finds to be inconsequential. The defendant has also pointed out that the ALJ erred in determining that plaintiff's insured status expired September 30, 1995, when it really expired March 31, 1995. This error was in plaintiff's favor and, therefore, is not relevant.
The ALJ made the following findings: plaintiff last engaged in gainful employment in 1992; she was 50 years old at the time of decision; as of the date her insured status expired, she suffered from severe degenerative disk disease; she lacked the residual functional capacity to stand or walk for prolonged periods or repetitively bend, but that such limitations did not impact her past relevant work as a receptionist as performed in the national economy; plaintiff's testimony concerning her impairments and their impact on her ability to work was not entirely credible; and plaintiff was not disabled as of the date she was last insured.
The undersigned finds that the ALJ's determination that plaintiff was unable to walk for prolonged periods is unsupported by the medical evidence of Dr. Maxwell, which clearly indicates that she was able to walk three miles without resting, well after her insured status expired. Inasmuch as this error was in plaintiff's favor, the court will not strike the ALJ's finding.
D. Discussion
1. Issues Presented
The following issues have been presented: (1) whether the ALJ erred at the third step of the sequential-evaluation process by not finding that plaintiff had a listed impairment and was not disabled; (2) whether the ALJ properly considered plaintiff's averments concerning pain; and (3) whether the ALJ erred in finding that plaintiff retained the residual functional capacity to perform her past relevant sedentary work as of the date last insured. These issues will be discussed seriatim
2. Finding of No Listed Impairment or Combination of Impairments at the Third Step
Plaintiff contends that the ALJ erred in not finding at the third step an impairment or combination of impairments that met the "listings." She contends that her impairments met listing 1.05C, which at the time of the administrative decision, required finding the following:
(1) pain, muscle spasm and significant limitation of motion in the spine; and
(2) appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.
The general instructions used in applying such listing are even more specific as to what a claimant must show, including persistence of abnormal physical findings on "repeated examinations," despite therapy, and a detailed description of a number of clinical findings, most of which are completely missing from the relevant portions of the record. While there is some evidence, it in no way could be considered as meeting, either qualitatively or quantitatively, the rigorous requirement of the instructions. Substantial evidence, therefore, supports the ALJ's determination at the third step.
3. Pain Determinations
Plaintiff also assigns error to the ALJ's discrediting of her testimony concerning the disabling nature of her pain. In part, the ALJ discredited the testimony based on the infrequent visits to doctors concerning her pain during the relevant 10-year period. Plaintiff contends that the ALJ erred as to the number of visits, which the undersigned has previously discussed, and failed to "consider what role Ms. Humphrey's nursing background had in her lack of doctor visits." Plaintiff brief, at 14. The undersigned has searched the regulations and reported decisions and can find no special rule or exception that applies to nurse's assistants, nurses, or even doctors on the very appropriate factor of seeking medical care for pain.
Even if the court were to consider plaintiff's argument, it could just as easily cut against her, inasmuch as having worked in the medical profession, she should have been aware of the benefits that typically follow professional attention to a medical problem. It was quite appropriate for the ALJ to treat neutrally her work as a nonprofessional medical assistant.
In Gross v. Heckler, 785 F.2d 1163 (4th Cir. 1986), the Court of Appeals for the Fourth Circuit held that the nature of a claimant's symptoms, the effectiveness of any medication she is taking, and her daily activities are all relevant factors when considering subjective symptoms such as pain. Id. The transcript of the hearing reveals that plaintiff went to the grocery store and mall, vacuumed her home, read, and walked. She limited her testimony, however, stating that she had limitations and only went places in the company of her husband. At one point she testified that she could pick items off the floor with her toes, but had trouble bending over to pick up books, and trouble with overhead reaching.
An ALJ is to consider credibility on subjective testimony, and a factor to consider is the "consistency, both internally and with other information in the case record." S.S.R. 96-7p. While it is inappropriate to simply discount testimony as to disabling pain based solely on the lack of objective medical findings, it is well within the law of this circuit and the regulations to discount such testimony where plaintiff's unilateral decision to not seek medical treatment left little chance to develop objective medical findings. There is evidence in the hearing transcript that plaintiff had medical insurance through her husband's work, so there was little financial barrier to seeking medical care, and as discussed before, plaintiff's own work in the field of medicine should have made her aware of the need to have chronic medical problems followed. See Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984). The ALJ's decision to discredit her testimony is well-supported by the record and current case law, and it is also in line with common sense. Where gainful employment, and enjoyment of life in general, is important, it would be reasonable to assume that a person who was suffering totally "disabling pain" and had access to medical care would do more than visit a doctor for such pain only seven times in 10 years. See Mickles v. Shalala, 29 F.3d 918, 930 (4th Cir. 1994). Reviewing the record as a whole, substantial evidence supports the ALJ's decision to give plaintiff's testimony concerning pain less than full credit. The undersigned can find no error.
4. Residual Functional Capacity
As to this final issue, plaintiff believes the ALJ erred in discrediting the opinion letter of plaintiff's second neurologist, Dr. Keith Maxwell, that she was totally disabled and a second letter from another physician who was treating her at the time of decision. At the fourth step of the sequential-evaluation process, the ALJ determined that plaintiff retained the residual functional capacity to perform her past relevant sedentary work as of the date last insured. In doing so, the ALJ specifically departed from the opinion of plaintiff's treating physician. In making such finding, the ALJ determined that plaintiff was limited to sedentary work, with no standing or walking for prolonged periods and no repetitive bending. While plaintiff's doctors may be correct that plaintiff is now totally disabled, there is no support in the record for their conclusions concerning her ability to work years before they ever saw her.
In general, the medical opinion of a treating physician may be disregarded only if there is persuasive contradictory evidence. Mitchell v. Schweiker, 699 F.2d 185 (4th Cir. 1983).
Objective medical facts and the opinions and diagnoses of the treating and examining doctors constitute a major part of the proof to be considered in a disability case and may not be discounted by the ALJ.
Id. at 187. A treating physician is a physician who has observed the plaintiff's condition over a prolonged period of time. Id. Even the opinion of a treating physician may be disregarded where it is inconsistent with clearly established contemporaneous medical records. See 20 C.F.R. § 404.1527(d)(4). In this case, Dr. Maxwell's opinion clearly conflicts with his finding in 1998 that plaintiff could walk three miles without rest. The classic problem with a doctor's vocational finding is, once again, present here: such opinions are in no way backed by clinical findings that relate to functional limitations, and even if they were, there is no indication that the doctors had any expertise or even knowledge of the physical demands of particular jobs or at what exertional level those jobs are performed.
The problem in this case is that the medical opinion letters, even where they reference previous clinical findings of past doctors, can be of no greater import than the clinical findings themselves. Where there are no contemporaneous clinical findings of relevant limitations or restrictions, an opinion letter by another physician, written years after insured status expired, does not provide the Commissioner with a rational basis for finding disability. When evaluating the opinion of a treating physician, the ALJ must consider whether the opinion should be given controlling weight. 20 C.F.R. § 4041527(d)(2). Controlling weight is afforded where
(1) the opinion is from a treating source;
(2) is a medical opinion concerning the nature and severity of the plaintiff's impairment; and
(3) is well-supported by medically acceptable clinical and laboratory diagnostic techniques.
See S.S.R. 96-2p. The undersigned must find no merit to this assignment of error.
E. Conclusion
The undersigned has carefully reviewed the decision of the ALJ, the transcript of proceedings, plaintiff's motion and brief, the Commissioner's responsive pleading, and plaintiff's assignments of error. Review of the entire record reveals that the decision of the ALJ is supported by substantial evidence. See Richardson v. Perales, supra; Hays v. Sullivan, supra. Finding that there was "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," Richardson v. Perales, supra, the undersigned must recommend to the district court that plaintiff's Motion for Summary Judgment be denied, the Commissioner's Motion for Summary Judgment be granted, and the decision of the Commissioner be affirmed.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that
(1) the decision of the Commissioner, denying the relief sought by plaintiff, be AFFIRMED;
(2) the plaintiff's Motion for Summary Judgment be DENIED;
(3) the Commissioner's Motion for Summary Judgment be GRANTED; and
(4) this action be DISMISSED.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984).
This Memorandum and Recommendation is entered in response to plaintiff's Motion for Summary Judgment (#7) and the Commissioner's Motion for Summary Judgment (#9).