Opinion
CIVIL ACTION No. 01-2267-DJW
September 30, 2002
MEMORANDUM AND ORDER
Plaintiff seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of Defendant Commissioner of the Social Security Administration (Commissioner) denying her application for disability insurance benefits under Title II of the Social Security Act. The parties have filed their consent to jurisdiction by Magistrate Judge, pursuant to 28 U.S.C. § 636(c)(1) and Fed.R.Civ.P. 73. (doc. 11) Plaintiff has filed a brief (doc. 10) seeking judicial review of the Commissioner's decision. Defendant has filed a brief in opposition. (doc. 12) Plaintiff has also filed a reply brief. (doc. 15)
The Court has reviewed the administrative record and the briefs of both parties. As set forth below, the Court affirms the decision of the Commissioner.
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 mere scintilla" and is "such relevant evidence as 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, 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 application for disability insurance benefits on December 16, 1997. ( See Certified Tr. of the Record at 115-17, doc. 7, hereinafter referred to as Tr.) In her application, she alleges that she had been disabled as of July 15, 1994. (Tr. 115) The Commissioner denied the claim initially and upon reconsideration. (Tr. 87-91, 94-98)On December 16, 1998, the Administrative Law Judge (ALJ) conducted a hearing on Plaintiff's claim. (Tr. 44-84) Plaintiff appeared in person with her attorney, M. Joseph Kuhn. (Tr. 46) At the hearing, Plaintiff amended her disability onset date to August 1, 1997, the date she claims as the onset of her cardiomyopathy. (Tr. 48) Also giving testimony at the hearing as a medical expert was Thomas Winston, M.D., a cardiovascular and forensic surgeon. (Tr. 61-81) During the hearing, Plaintiff requested that the record be held open in order to allow her to gather and submit additional, recently-acquired medical evidence. (Tr. 48)
On January 29, 1999, the ALJ issued his decision indicating that the additional medical evidence provided by Plaintiff after the hearing was received, entered into the record, and considered in the decision. (Tr. 24) The ALJ's decision concluded that Plaintiff was not disabled within the meaning of the Social Security Act and was therefore not entitled to receive disability insurance benefits. (Tr. 24-33) In reaching his conclusion, the ALJ determined that Plaintiff retained the capacity to perform her past relevant work as a sales clerk and, alternatively, to make an adjustment to work that exists in significant numbers in the national economy. (Tr. 31) The ALJ, therefore, concluded that Plaintiff was not disabled under step four of the Commissioner's five-step sequential process for determining disability.
On February 26, 1999, Ms. Jackson requested a review of the hearing decision by the Appeals Council. (Tr. 19) She submitted additional medical evidence relating to her alleged impairments on May 11, 2000. (Tr. 12-17) The Appeals Council issued an Order stating that the evidence submitted by Plaintiff was received and made a part of the record. (Tr. 8) On April 16, 2001, the Appeals Council found no grounds for review and concluded that the additional evidence submitted by Plaintiff did not provide a basis for changing the ALJ's decision. (Tr. 6-7) Thus, the findings of the ALJ stand as the final decision of the Commissioner in this case.
III. Factual Summary
At the time of the hearing, Plaintiff was 52 years of age. (Tr. 115) Under the social security regulations, this is classified as "closely approaching advanced age." (Tr. 32) Plaintiff has a high school education (Tr. 32) but no other formal education or training. Her past work includes working as a sales clerk, waitress, and bartender. (Tr. 30, 132, 138) Plaintiff alleges she became disabled, unable to work, and eligible for disability insurance benefits on August 1, 1997, due to chronic obstructive pulmonary disease, congestive heart failure, and idiopathic cardiomyopathy resulting in fatigue and shortness of breath, hypothyroidism, and joint pain.
20 C.F.R. Part 404, Subpart P, App. 2, Rule 200.00(g).
IV. The ALJ's Findings
In his order of January 29, 1999, the ALJ made the following findings:
1. The claimant met the disability insured status requirements of the Act on August 1, 1997, the amended date the claimant stated she became unable to work, and has acquired sufficient quarters of coverage to remain insured through June 30, 1999.
2. The claimant has not engaged in substantial gainful activity since August 1, 1997.
3. The medical evidence establishes that the claimant has a history of congestive heart failure — compensated, COPD and idiopathic cardiomyopathy, impairment[s] which are severe but which [do] not meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's statements concerning her impairments and their impact on her ability to work are only credible to the extent that they indicate abilities which do not exceed the limitations set forth in the residual functional capacity determination below.
5. The claimant has the residual functional capacity to perform the exertional demands of work activity consistent with light work which requires lifting and carrying up to 20 pounds occasionally and up to 10 pounds frequently; to stand and walk 6 hours in an 8 hour workday; and to sit 6 hours in an 8 hour workday.
6. The claimant has non-exertional limitations in that she is restricted to no more than occasional bending, stooping, crouching, kneeling, or crawling. The claimant must avoid temperature extremes; exposure to environmental pollutants; and frequent, repetitive pushing and pulling activity.
7. The claimant is able to perform her past relevant work as a sales clerk in that the type of work and duties required by that job does not exceed the exertional and non-exertional residual functional capacity retained by the claimant.
8. The claimant is 52 years old, an individual "closely approaching advanced age".
9. The claimant has at least a high school education.
10. The claimant has skilled work experience but has not necessarily acquired work skills transferable to other jobs.
11. Considering the claimant's age, educational background, and residual functional capacity, and regardless of transferability of skills, she is able to make a successful vocational adjustment to work which exists in significant numbers in the national economy. Such work includes employment within the full range of over 1,400 unskilled occupations each representing numerous jobs in the light occupational base.
12. The claimant has not been under a disability, as defined in the Social Security Act, at any time through the date of this decision.
(Tr. 31-33)
V. Plaintiff's Challenges to the Commissioner's Decision
Plaintiff challenges the decision of the Commissioner, who denied her disability insurance benefits, on several grounds. Plaintiff contends the Commissioner's decision was not based on substantial evidence on the record as a whole, and contains several errors of fact and law that are grounds for reversal of the Commissioner's decision. Specifically, she contends that: (1) the ALJ failed to include, as a basis for his decision, several relevant, material medical records, (2) the ALJ improperly discounted some of the opinions of her treating physicians, (3) the ALJ failed to make a specific credibility determination and ignored some of the factors used in assessing her credibility, (4) the ALJ failed to include a narrative discussion describing how the evidence supports each RFC conclusion, and (5) the ALJ failed to call a vocational expert to testify at the hearing. Plaintiff urges reversal with an immediate award of benefits, or, alternatively, a remand of the case to the Commissioner to correct the identified errors.
The Commissioner seeks an order affirming the decision denying Plaintiff disability benefits. The Commissioner submits that substantial evidence supports the decision that Plaintiff was not disabled.
VI. Analysis and Discussion A. Failure to Consider Medical records
Plaintiff's first alleged point of error is that the ALJ failed to include, as a basis for his decision, several key, relevant, and material medical records, either in whole or part. She cites, as examples from the record, the statements of her treating physicians, Drs. Grillot and Hallin, and the medical evidence of her breathing problems and heart condition.
1. Dr. Grillot's Medical Assessment
The first medical record Plaintiff claims the ALJ failed to include as a basis for his decision is the Medical Assessment of Ability to Perform Work-Related Activities form completed by her long-term treating physician, Stephen Grillot, D.O., sometime after September 14, 1998. (Tr. 293-296) In the assessment, Dr. Grillot opines that Plaintiff can occasionally lift/carry 10 pounds, frequently lift/carry 5 pounds, and continuously lift/carry zero pounds. (Tr. 294) He further indicates on the medical assessment form that, if Plaintiff is allowed to change positions, she could sit 8 hours, stand 4 hours and walk 2 hours. (Tr. 293) She can sit 8 hours, stand 4 hours, and walk 4 hours at one time without having to alternate positions. (Tr. 293)
From the Court's review of the ALJ's decision, it appears that the ALJ included Dr. Grillot's medical assessment form, completed sometime after September 14, 1998, as a basis for his decision. The ALJ expressly references Dr. Grillot's medical assessment form in his decision: "Dr. Grillot has assessed [Plaintiff's] functional limitations. (Ex. 20F) Such evaluation, even from an acceptable medical treating source, while given consideration, is never controlling, as the determination of whether a claimant is capable of work is an issue reserved for the Commissioner under Social Security Ruling 96-5p." The ALJ then states that he placed significant weight on Dr. Grillot's opinion, along with the opinions of the State Agency physicians, and only discounted the portions of Dr. Grillot's opinion that were inconsistent or unsupported by the objective medical evidence. Lastly, the fact that the ALJ included most of Dr. Grillot's limitations in his assessment of Plaintiff's RFC convinces the Court that the ALJ considered Dr. Grillot's medical assessment in his decision.
2. Dr. Hallin's Opinion
Plaintiff next contends that the ALJ failed to include Dr. Gustav Hallin's opinion that her medical condition prevents the performance of gainful employment in his decision. In a statement for the Kansas Department of Social and Rehabilitation Services dated November 14, 1997, Dr. Hallin checked a box that indicated Plaintiff's condition prevents the performance of gainful employment, is expected to last 12 months or longer, and is not controllable within a 12-month period by medication, surgery, or other treatment. (Tr. 217-18)
The Court determines that the ALJ properly included Dr. Hallin's November 14, 1997 opinion as a basis for his decision. The ALJ states in his decision that "the opinion of Dr. Hallin that the claimant's impairments will prevent substantial gainful activity (Ex. 4F), while considered, reaches the ultimate issue of disability, reserved to the Commissioner under Social Security Ruling 96-5p. It must be emphasized that Dr. Hallin's evaluation was documented in November, 1997, prior to the claimant's dramatic improvement documented elsewhere in the record." (Tr. 30)
Based upon the ALJ's discussion, the Court determines that the ALJ appropriately included Dr. Hallin's November 14, 1997 opinion as a basis for his decision.
3. Medical Evidence of Plaintiff's Breathing Problems
Plaintiff next claims that the ALJ did not fully consider the totality of her medical evidence relating to her breathing impairment. She asserts that the medical record shows that she suffers from bronchitis or shortness of breath.
Contrary to Plaintiff's assertion, the ALJ appears to have considered evidence relating to her breathing problems. In his decision, the ALJ addresses Plaintiff's complaints of shortness of breath and fatigue and notes that both conditions have improved with medication. (Tr. 26, 29) He also notes that she was hospitalized for bronchitis and respiratory insufficiency in October 1997 (Tr. 26) and reported dyspnea on exertion in 1998. The ALJ further indicated that Plaintiff's symptoms showed marked improvement with prescribed medications. (Tr. 27)
Defined as "shortness of breath; a subjective difficulty or distress in breathing, usually associated with disease of the heart or lungs." Stedman's Medical Dictionary 480 (25th ed. 1990).
Taking this into account, the Court concludes that the ALJ appears to have considered evidence relating to Plaintiff's claimed breathing impairments in his decision.
4. Medical Evidence of Plaintiff's Heart Condition
The next category of evidence Plaintiff claims the ALJ did not consider in his decision is the October 13, 1998 letter written by Dr. Michael T. Hagley, the cardiologist who performed Plaintiff's heart catheterization on December 17, 1997. In this letter addressed to Dr. Grillot, Dr. Hagley states that Plaintiff has dilated, non ischemia cardiomyopathy and she still has some dyspnea on exertion. (Tr. 291) He also indicated that she feels better than before treated. (Tr. 291)
The ALJ noted in his decision that Plaintiff was treated at various intervals by Drs. Grillot, Hallin, and Hagley. (Tr. 26) He then discussed the following medical evidence relating to Plaintiff's heart condition:
Cardiomyopathy was diagnosed in 1997 and the claimant was treated for congestive heart failure. In December, 1997, the claimant's left ventricular ejection fraction registered at 16%. However, Dr. Hallin and others have noted that her condition has improved dramatically since that time with prescribed medication including Synthroid and Vasotec. For instance, an echocardiogram from April, 1998 indicated only a mildly reduced left ventricular function measured at approximately 45-50%. A cardiac catheterization undertaken in December, 1997 indicated an idiopathic dilated cardiomyopathy, according to Dr. Hagley, but no significant coronary artery disease.
A drug commonly used for the treatment of hypothyroidism. Physician's Desk Reference 1498 (53d ed. 1999).
A drug commonly used for the treatment of symptomatic congestive heart failure Id. at 1916.
(Tr. 27)
Based on this discussion, the Court concludes that the ALJ considered the medical evidence relating to Plaintiff's heart condition in making his decision.
B. Treating Physicians' Opinions
Plaintiff next claims that the ALJ erred by failing to give controlling weight to the opinions of Dr. Grillot, her "long term treating doctor," and Dr. Hallin, another treating physician specializing in pulmonary disease. The Commissioner responds that the ALJ properly considered the physicians' opinions and articulated specific, legitimate reasons for discounting those portions of their opinions he did not adopt.
"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 Commissioner will give controlling weight to that type of opinion if it is well supported by 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 v. Sec'y of Health Human Servs. , 26 F.3d 1027, 1029 (10th Cir. 1994); 20 C.F.R. § 404.1527(a)(2).
Id. ; 20 C.F.R. § 404.1527(d)(2).
Frey v. Bowen , 816 F.2d 508, 513 (10th Cir. 1987).
1. Dr. Grillot's opinion
Plaintiff specifically asserts that not all of Dr. Grillot's findings, as listed in the Medical Assessment of Ability to Perform Work-Related Activities, were given controlling weight as provided by 20 C.F.R. § 404.1527(d)(2). As discussed earlier, Dr. Grillot opined in the medical assessment that Plaintiff could sit 8 hours, stand 4 hours, and walk 2 hours during an 8-hour workday if she were allowed to change positions as needed. (Tr. 293) She can sit 8 hours, stand 4 hours, and walk 4 hours at one time without having to alternate positions. (Tr. 293) He also indicated that Plaintiff could occasionally lift/carry 10 pounds, frequently lift/carry 5 pounds and continuously lift/carry 0 pounds. (Tr. 294) Plaintiff, he stated, can occasionally use her hands, arms, feet and legs for push/pull type movements, but she is limited to only occasional bending, stooping, kneeling, reaching with both arms, and twisting/turning. (Tr. 294) Dr. Grillot also indicated that Plaintiff should avoid repetitive handling of large items, climbing stairs, crouching and squatting and should be totally restricted against crawling, exposure to extreme temperatures, and environmental pollutants. (Tr.294-5) Lastly, Plaintiff points out, Dr. Grillot stated that she has a "markedly decreased exercise tolerance." (Tr. 296) The Court notes that Dr. Grillot's Medical Assessment is not dated, but was completed sometime after September 14, 1998 (the date Dr. Grillot reported he last saw Plaintiff). (Tr. 293)In this case, the ALJ found that Plaintiff retained the residual functional capacity to: [O]ccasionally lift up to 20 pounds and up to 10 pounds frequently; to stand and walk up to 6 hours in an 8 hour workday; and sit for 6 hours in an 8 hour workday. This is consistent with the exertional demands of light work. 20 C.F.R. § 404.1567.
[Plaintiff's] capacity for work is diminished by non-exertional limitations which potentially pose difficulties in performing some everyday work functions in certain jobs. The claimant is restricted to no more than occasional bending, stooping, crouching, kneeling, or crawling. The claimant must avoid temperature extremes; exposure to environmental pollutants; and frequent repetitive pushing and pulling activity.
(Tr. 30) Comparing Dr. Grillot's medical assessment with the ALJ's RFC determination, the Court notes that the ALJ appears to have adopted the majority of Dr. Grillot's restrictions. The primary discrepancies appear to be the number of pounds Plaintiff can lift occasionally and frequently and her standing and walking tolerances.
The ALJ's provided the following explanation for why he disregarded some of the exertional limitations contained in Dr. Grillot's medical assessment:
The opinions of the claimant's treating sources discussed above have been considered but none are given controlling weight because they present some inconsistencies in their findings relative to the substantial evidence. Dr. Grillot has assessed the claimant's functional limitations. (Ex. 20F). Such evaluation, even from an acceptable medical treating source, while given consideration, is never controlling, as the determination of whether a claimant is capable of work is an issue reserved to the Commissioner under Social Security Ruling 96-5p. Dr. Grillot's assessment is shown to be partially consistent with the substantial evidence of record. However, some of the limitations, such as the degree of lifting restriction expressed for example, is not supported by objective medical findings. In making this determination, the undersigned has also considered the opinions of the Kansas State Agency medical consultants regarding the claimant's functional capacity. (Exs. 11F, 12F). That set of opinions, taken in conjunction with the evaluation by Dr. Grillot, referenced above, is a generally consistent representation of the claimant's capacity based on the entire record. The undersigned has placed significant weight on these consolidated opinions in determining the claimant's residual functional capacity.
(Tr. 29-30)
Plaintiff maintains that the ALJ's reason for not giving Dr. Grillot's opinion controlling weight lacks specificity and does not provide a medical basis for declaring the lifting opinion as not being supported by objective medical evidence. She then identifies the lifting restriction as "apparently the only part of Dr. Grillot's opinion" that the ALJ found "disagreeable" and asserts that the "only specific reason provided" by the ALJ for discrediting Dr. Grillot's opinion, its inconsistency with the State Agency Medical consultants, is not a legitimate reason.
The Commissioner contends that the ALJ assigned significant weight to the consolidated opinions of Dr. Grillot and the State agency physicians and only discounted those portions of Dr. Grillot's opinion that he found inconsistent with or unsupported by the objective medical evidence. The Commissioner asserts that the ALJ's determination of Plaintiff's RFC particularly reflects Dr. Grillot's opinion that Plaintiff had no limitation in sitting, that she was limited to occasional pushing and pulling, bending, stooping, and kneeling, and that she must avoid repetitive crouching. Also, Dr. Grillot's opinion regarding to Plaintiff's need to avoid temperature extremes and environmental pollutants is included in the RFC determination. (Tr. 30, 295)
The Commissioner argues that the ALJ found Dr. Grillot's opinion asserting the Plaintiff should be restricted to lifting only 10 pounds occasionally and 5 pounds frequently to be unsupported by substantial evidence of record. Although Plaintiff complained of joint pain (Tr. 277), Dr. Grillot did not state that restricting Plaintiff's activities was the necessary result of these complaints. The Commissioner also points to inconsistencies noted by Dr. Winston, the medical expert, with regard to Dr. Grillot's opinions about Plaintiff's limitations with regard to walking and standing. (Tr. 74, 293) At the hearing, Dr. Winston noticed that Dr. Grillot had stated that Plaintiff could walk for 4 hours at a time but was limited to walking for a total of 2 hours per day. Also, as Dr. Winston pointed out, Dr. Grillot assessed Plaintiff as being able to stand four hours at a time but for a total of only four hours in a day.
The Commissioner relies on Castellano v. Secretary of HHS and 20 C.F.R. § 404.1527(d)(2) in asserting that the opinion of a treating physician is entitled to deference if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the case record. The Court agrees with the Commissioner, and determines that the exceptions that the ALJ makes in disregarding Dr. Grillot's opinion with regard to Plaintiff's capacities for lifting, standing, and walking are specifically and legitimately articulated, and are supported by substantial evidence in the record.
Castellano, 26 F.3d at 1029.
2. Dr. Hallin's opinion
Plaintiff additionally argues that the opinion of Gustav Hallin, M.D., a board-certified internal medicine physician who qualifies as Plaintiff's treating physician, is improperly rejected by the ALJ. The Commissioner responds by noting that Dr. Hallin's opinion that Plaintiff "is suffering from a severe impairment or impairments which have lasted or is expected to last for a period of one year and will prevent substantial gainful work activity" was stated on November 14, 1997, when Plaintiff's diagnosis was "severe cardiomyopathy." The Commissioner argues that the ALJ considered and then properly discounted Dr. Hallin's statement as an opinion of disability that is ultimately reserved for the Commissioner under Social Security Ruling 96-5p.
The Court notes that the ALJ's report emphasized that Dr. Hallin's opinion had been rendered prior to "dramatic improvement" in Plaintiff's condition as documented in the medical evidence. (Tr. 30) In particular, such improvement is noted by Dr. Hallin himself in his November 18, 1997 referral letter to Dr. Hagley, in which he states that Plaintiff has "improved dramatically after her first dose of Lasix," is "asymptomatic," her lungs "absolutely clear" and her heart size "clearly smaller compared to a month ago, and now well within normal limits." (Tr. 196) In addition, the Court notes other objective medical evidence supports the ALJ's finding that Plaintiff's heart condition had significantly improved. Plaintiff's echocardiogram on April 14, 1998 showed that her left ventricular function appeared only mildly decreased and her left ventricular ejection fraction was approximately 45-50%. (Tr. 254) Another echocardiogram, performed on October 13, 1998, indicated that Plaintiff's overall left ventricular function was at the "lower limit of normal" and her estimated left ventricular ejection fraction was approximately 50-55%. (Tr. 292) This constituted a significant improvement from Plaintiff's 16% ejection fraction in November 1997 and was nearing the normal range of 50-55%, as reported by the medical expert, Dr. Winston. (Tr. 66)
Commonly used for treatment of edema associated with congestive heart failure. Physician's Desk Reference at 1325.
The Court agrees with the Commissioner's assertion that the ALJ is not bound to accept the conclusion of Plaintiff's treating physician on the ultimate fact of disability. The treating physician's opinion that claimant is disabled is not dispositive because final responsibility for determining the ultimate issue of disability is reserved for the Commissioner. 20 C.F.R. § 404.1527(e)(2). In this case, the ALJ considered and then discounted the opinion of Dr. Hallin. His reasons for doing so are articulated specifically and legitimately in his report and are supported by substantial medical evidence in the record.
C. Credibility Determination
Plaintiff next contends that the ALJ erred by failing to make a specific credibility determination. She claims that the ALJ's finding that her "statements concerning her impairments and their impact on her ability to work are credible only to the extent they indicate abilities which do not exceed the limitations set forth in the residual functional capacity determination below" fails to sufficiently identify what portions of her testimony he found not credible. Plaintiff also claims that the ALJ either failed to consider or incompletely considered several factors in his assessment of her credibility. The Commissioner argues that the ALJ's consideration of the subjective aspects of Plaintiff's complaints comports with 20 C.F.R. § 1529 and the framework set out in Luna v. Bowen.
1. Whether the ALJ made a specific credibility determination
The Court first addresses Plaintiff's argument that the ALJ failed to make a specific credibility determination. She argues that the ALJ's conclusion that "[her] statements concerning her impairments and their impact on her ability to work are credible only to the extent they indicate abilities which do not exceed the limitations set forth in the residual functional capacity determination below" fails to satisfy the requirements of Social Security Ruling 96-7p. Plaintiff asserts that the ALJ's credibility finding is a single, conclusory statement, which fails to sufficiently identify which portions of Plaintiff's statements he found not credible.
In determining the credibility of the individual's statements, the ALJ must consider the entire case 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. An individual's statements about the intensity and persistence of pain or other symptoms or about the effect the symptoms have on his or her ability to work may not be disregarded solely because they are not substantiated by objective medical evidence.
Social Security Ruling (SSR) 96-7p, 1996 WL 362209, at *34484.
It is not sufficient for the adjudicator to make a single, conclusory statement that "the individual's allegations have been considered" or that "the allegations are (or are not) credible." It is also not enough for the ALJ to simply recite the factors that are described in the regulations for evaluating symptoms. The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight.
Id.
Id.
Id.
In his decision, the ALJ provided the following discussion of his assessment of Plaintiff's credibility:On considering the entire record, it is clear that objectively, the symptoms alleged do not have full medical documentation. For example, there has been shown no musculoskeletal impairment expected to produce significant pain. However, there is no reason to question the existence of pain and other subjective symptoms such as those alleged as some level up to, and including that which may be disabling. As to those symptoms as are alleged, the testimony shows that claimant apparently obtains relief from over-the-counter medications, required [sic] any prescription pain relief. This is generally taken to indicate a lower level of pain than would be expected to be disabling.
Her shortness of breath and fatigue are consistent with her history of congestive heart failure and COPD as well as with the medication for those disorders. However, both conditions have improved dramatically within months of the earliest diagnosis of record, with appropriate medication. More recently, the claimant reported an absence of these symptoms in the course of an examination with a consulting physician. One of the claimant's treating physicians has indicated that no limitation in sitting throughout an entire 8 hour workday, as emphasized by the expert witness. In summary, the claimant is not found subject to disabling pain or shortness of breath.
Notwithstanding the above conclusion, symptoms as documented do warrant a reduction in residual functional capacity. At the same time, the claimant's statements of record reflect the ability to engage in a number of daily activities. While this ability does not necessarily or directly translate into work capacity, it does demonstrate the capacity for a substantial range of movement. Considering these factors, the undersigned finds that the claimant has functional limitations, but that the claimant's statements are credible only to the extent they indicate an inability to engage in activity exceeding the residual functional capacity set forth below.
(Tr. 28-29) From this discussion, the Court ascertains that the ALJ found Plaintiff's testimony not credible regarding her shortness of breath and fatigue and her claimed limitation on sitting for an 8-hour day. The Court, therefore, finds that the ALJ set forth a sufficiently specific discussion of the weight he gave to Plaintiff's statements regarding her work limitations and the reasons for that weight. The Court is thus able to understand what portions of Plaintiff's testimony he found not credible. Although the ALJ makes the conclusory statement that Plaintiff's statements concerning her impairments and their impact on her ability to work are credible only to the extent they indicate abilities which do not exceed the limitations set forth in the residual functional capacity determination, he further explains this statement by specifically discussing those portions of her testimony he found not credible.
The Court further determines that the ALJ's decision in this case contains specific reasons for the finding on credibility and these reasons are supported by evidence in the case record. The ALJ's finding that Plaintiff is not currently subject to disabling pain or shortness of breath is supported by documentation as Dr. Hagley's physical exam and echocardiogram findings on October 13, 1998 (Tr. 291-292), Dr. Grillot's Medical Assessment of Ability to Perform Work-Related Activities (Tr. 293-296), and Dr. Chamber's Outpatient Consult report dated December 17, 1998 (Tr. 298-299). Her ability to sit for an 8-hour day is supported by Dr. Grillot's Medical Assessment as well. (Tr. 293)
For these reasons, the Court concludes that the ALJ's made a sufficiently specific credibility determination, which is supported by substantial evidence in the record.
2. Whether the ALJ failed to consider or improperly considered credibility factors
Plaintiff's next credibility argument is that the ALJ failed to consider or improperly considered several credibility factors, including activities of daily living; the location, duration, frequency, and intensity of symptoms; precipitating and aggravating factors, other treatment received for pain and symptoms; and any measures used to relieve pain or other symptoms. Responding to Plaintiff's brief, the Commissioner counters that substantial evidence supports the ALJ's credibility determination in which Plaintiff's credibility was discounted based on several factors. The Commissioner maintains that the ALJ did consider the objective medical evidence of record, Plaintiff's attempts to obtain relief, Plaintiff's activities of daily living, and the intensity and frequency of her symptoms in determining her credibility. The Commissioner relies on Bridgeford v. Chater in support of his argument that the ALJ's failure to discuss each of the numerous factors listed as relevant in evaluating Plaintiff's testimony is not error in itself.
922 F. Supp. 449, 459 (D.Kan. 1995) (citing Porter v. Chater , 895 F. Supp. 1427, 1436 (D.Kan. 1995)).
The regulations describe a two-step process for evaluating symptoms, such as pain, fatigue, shortness of breath, weakness, or nervousness. First, the adjudicator must consider whether there is an underlying medically determinable physical or mental impairment that can be shown by medically acceptable clinical and laboratory diagnostic techniques and could reasonably be expected to produce the individual's pain or other symptoms. Second, once an underlying physical or mental impairment that could reasonably be expected to produce the individual's pain or other symptoms has been shown, the adjudicator must evaluate the intensity, persistence, and limiting effects of the individual's symptoms to determine the extent to which the symptoms limit the individual's ability to do basic work activities.
SSR 96-7p, 1996 WL 362209, at *34484.
Id., at *34485.
When additional information is needed to assess the credibility of the individual statement's about symptoms and their effects, the adjudicator must make every reasonable effort to obtain available information that could shed light on the credibility of the individual's statements. In recognition of the fact that an individual's symptoms can sometimes suggest a greater level of severity of impairment than can be shown by the objective medical evidence alone, 20 C.F.R. § 404.1529(c) and 416.929(c) describe the kinds of evidence, including the factors below, that the adjudicator must consider in addition to the objective medical evidence when assessing the credibility of an individual's statements: 1) The individual's daily activities; 2) the location, duration, frequency, and intensity of the individual's pain or other symptoms; 3) factors that precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5) treatment, other than medication, the individual receives or has received for relief of pain or other symptoms; 6) any measures other than treatment the individual uses or has 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 individual's functional limitations and restrictions due to pain or other symptoms.
Id.
Id. ; 20 C.F.R. § 404.1529(c)(3).
In this case, the ALJ recited the factors that must be considered, in addition to the objective evidence, when assessing the credibility of an individual's statements. (Tr. 28) He also included a discussion of the medications Plaintiff uses for pain relief and her reported daily activities. (Tr. 26) He also described the symptoms Plaintiff reported (Tr. 26) and then addressed why he found them not credible. (Tr. 29) While he did not expressly address the other factors in his decision, Plaintiff has not identified what other precipitating and aggravating factors or other treatments Plaintiff 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." While the ALJ is required to consider all these factors, failure to discuss all the factors is not error in itself. 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. § 404.1529(c)(3).
987 F.2d 1482, 1490 (10th Cir. 1993).
Id. (citing Hargis v. Sullivan , 945 F.2d 1482, 1489 (10th Cir. 1991)).
Bridgeford, 922 F. Supp. at 459 (citing Porter , 895 F. Supp. at 1436).
D. Residual Functional Capacity (RFC) Determination
Plaintiff contends that the ALJ erred at step four of the sequential analysis by failing to satisfy the requirements of Social Security Ruling 96-8p. She argues that ALJ failed to include a narrative discussion of how the medical evidence and other evidence of record supports each conclusion in the assessment of her RFC. She argues that the ALJ's decision is silent with regard to the medical evidence on which the ALJ relied in formulating Plaintiff's RFC determination. In response, the Commissioner argues that the ALJ's decision states that he gave significant weight to the consolidated opinions of Dr. Grillot and the State Agency physicians, as well as Plaintiff's own testimony regarding her limitations. The Commissioner notes the consistency of Plaintiff's RFC with Dr. Grillot's limitations and points to the fact that Plaintiff's RFC is actually more restrictive in many aspects than the limitations assigned by the State Agency physicians. Lastly, the Commissioner cites the similarity between the ALJ's RFC determination and Plaintiff's own statements regarding her limitations.
At step four, a claimant bears the burden of proving that her medical impairments prevent her from performing work that she has performed in the past. However, in order to make the ultimate finding that a claimant is not disabled at step four, the ALJ is required by the agency's rulings to make specific and detailed predicate findings concerning the claimant's residual functional capacity, the physical and mental demands of the claimant's past jobs, and how these demands mesh with the claimant's particular exertional and nonexertional limitations.
See generally Williams v. Bowen , 844 F.2d 748, 751 n. 2 (10th Cir. 1988).
SSR 96-8p, 1996 WL 374184; SSR 82-62, 1982 WL 31386, at *4; see also Winfrey v. Chater , 92 F.3d 1017, 1023-25 (10th Cir. 1996).
In arriving at an RFC, an ALJ must provide a "narrative discussion describing how the evidence supports" his or her conclusion. 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 ALJ must also explain how any material inconsistencies or ambiguities in the case record were considered and resolved. The RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence. The RFC assessment "must not be expressed initially in terms of the exertional categories of "sedentary [or] light;" rather, a function-by-function evaluation is necessary in order to arrive at an accurate RFC. A failure to first make a function-by-function assessment of the claimant's limitations of restrictions could result in the adjudicator overlooking some of the claimant's limitations or restrictions.
SSR 96-8p, 1996 WL 374184, at *7.
Id.
Id.
Id.
Id., at *3.
SSR 96-8p, 1996 WL 374184, at *4.
In this case, the ALJ provided the following explanation regarding where he derived the limitations set forth in her RFC determination:
Dr. Grillot has assessed the claimant's functional limitations. (Ex. 20F). Such evaluation, even from an acceptable medical treating source, while given consideration, is never controlling, as the determination of whether a claimant is capable of work is an issue reserved to the Commissioner under Social Security Ruling 96-5p. Dr. Grillot's assessment is shown to be partially consistent with the substantial evidence of record. However, some of the limitations, such as the degree of lifting restriction expressed for example, is not supported by objective medical findings. In making this determination, the undersigned has also considered the opinions of the Kansas State Agency medical consultants regarding the claimant's functional capacity. That set of opinions, taken in conjunction with the evaluation by Dr. Grillot, referenced above, is a generally consistent representation of the claimant's capacity based on the entire record. The undersigned has placed significant weight on these consolidated opinions in determining the claimant's residual functional capacity.
(Tr. 29-30)
Contrary to Plaintiff's assertion that the ALJ is silent as to the medical evidence the ALJ considered in formulating the RFC determination, the Court finds that the ALJ specifically identified the medical sources of the limitations he included in the RFC assessment. The Court, therefore, holds that the ALJ provided an adequate narrative discussion of how the medical evidence and other evidence of record supports each conclusion in his assessment of Plaintiff's RFC.
E. Failure to Consult a Vocational Expert
Plaintiff's final contention is that the ALJ committed a procedural error in failing to obtain the testimony of a vocational expert. Plaintiff contends that the ALJ's resort to the Medical-Vocational Guidelines (grids) was inappropriate because she has both exertional and non-exertional impairments. In this case, the ALJ concluded at step four of the sequential evaluation process that Plaintiff could perform her past relevant work as a sales clerk. As Plaintiff never met her burden of showing that her impairments prevented her from returning to her past work as a sales clerk at step four, the ALJ was under no obligation to elicit the testimony of a vocational expert. IT IS THEREFORE ORDERED that the decision of the Commissioner denying Plaintiff benefits is affirmed. Such decision will dispose of this case, including Plaintiff's Complaint (doc. 1), which has been considered a petition for review. IT IS FURTHER ORDERED that Jo Anne B. Barnhart is substituted for Larry G. Massanari as the party defendant in this suit, and the Clerk shall change the docket to reflect the caption as shown on this Memorandum and Order. IT IS SO ORDERED.
Musgrave v. Sullivan , 966 F.2d 1371, 1376 (10th Cir. 1992); see also Clarke v. Shalala , Civ. A. No. CV-2216, 1993 WL 244968, at *1 (D.Kan. 1993) ("[B]ecause Plaintiff is capable of performing past relevant work, and thus Plaintiff is deemed not disabled at step four, there is no need for vocational expert testimony to introduce evidence of substantial gainful activity that the claimant is able to perform.")