Opinion
Case No. 01-cv-136-JPG.
March 12, 2002
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation ("Report") (Doc. 11) of Magistrate Judge Philip M. Frazier recommending that the Court affirm the Commissioner of Social Security's ("Commissioner") final decision to deny plaintiff Sandra Lange's ("Lange") application for disability benefits.
I. Background
Since at least 1991, Lange has suffered from degenerative osteoarthritis of the knees. She worked until September 15, 1991, and was insured for disability benefits until September 30, 1991. In January 1998, she filed an application for disability insurance benefits. In order for Lange to be eligible for such benefits, she must have been disabled while she was insured, that is, on or before September 30, 1991. The administrative law judge's ("ALJ") decision, the final decision in this case, held that Lange was not disabled on or before September 30, 1991, because she did not have an impairment that met the criteria of any impairment listed in the applicable federal regulations and because she was able to perform the type of work she had done in the past. That is the order from which Lange appeals to this Court.
In her appeal, Lange argues that the ALJ was obligated to update her medical record after he received a letter from Dr. Thorpe, an orthopaedic surgeon, dated July 22, 1998. That letter stated that after reviewing the medical records and impairments listed in the appropriate federal regulations, Dr. Thorpe believed that Lange "does meet" the criteria for disability under one of those regulations. The letter did not speak to Lange's condition in 1991. The Report found that the ALJ was not obligated to update the medical record after he received Dr. Thorpe's letter because it did not speak to Lange's condition during the relevant time period — on or before September 30, 1991. In fact, the ALJ noted that Dr. Thorpe was not Lange's treating physician during that period. Because Dr. Thorpe's letter did not in any way cast doubt on the state consultants' opinions from April and May 1998 that Lange's impairment was not equivalent in severity to a listed impairment during the relevant time period, the Report concluded that the ALJ had no duty to seek further information from Dr. Thorpe.
Lange also argues that the ALJ improperly evaluated the credibility of her statements about pain, other symptoms and their effect on her functional capacity. She claims that he did not give reasons with reference to the evidence for the weight given to her statements. Specifically, she points to her statement that in 1991 she could not stand for six hours at a time and that getting up and down hurt her knees. Apparently, she believes that the ALJ discredited her testimony when he found that she could "drive weekly to the grocery, attend church services about three times a week and required only short breaks to relieve the pain." The Report found that the ALJ's assessment of Lange's credibility was adequately explained in such a way that permitted review.
Lange's final argument is that the ALJ did not develop a full and fair record because he did not consult a medical advisor to assure that his determination of the onset of Lange's alleged disability has a legitimate medical basis. Lange points to records that she was able to obtain to present to the Appeals Council when she asked it to review the ALJ's decision but which the ALJ did not obtain for use in his decision. She claims that those records would lead the ALJ to infer that her disability began before September 30, 1991. The Report found that the ALJ had sufficient evidence from which to evaluate Lange's condition and functional capacity at the relevant time.
II. Report and Recommendation Review Standard
After reviewing a magistrate judge's report and recommendation, a district court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in the report. Fed.R.Civ.P. 72(b). The court must review de novo the portions of the report to which objections are made. The district judge has discretion to conduct a new hearing and may consider the record before the magistrate judge anew or receive any further evidence deemed necessary. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999). Lange has objected to the Report's conclusions on all three issues raised in this appeal (Doc. 12), and the Commissioner has responded to the objections (Doc. 13). Thus, the Court will review the case de novo.
III. Analysis
The Court will affirm the Commissioner's decision if it is supported by substantial evidence. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (internal quotations and citation omitted). In addition, the ALJ has a duty to develop a full and fair record. See Smith v. Apfel, 231 F.3d 433, 437 (7th Cir. 2000); Thompson v. Sullivan, 933 F.2d 581, 585 (7th Cir. 1991). Failure to do so constitutes "good cause" for remanding a case to gather additional evidence. Smith, 231 F.3d at 437; Thompson, 933 F.2d at 586.
A. Duty to Update Medical Record
Lange objects to the Report's conclusion that the ALJ was not obligated to update Lange's medical record after Dr. Thorpe's July 1998 letter. Relying on Social Security Ruling 96-6p, she argues that Dr. Thorpe's opinion was sufficient to trigger the ALJ's obligation to seek an updated medical judgment. Relying on 20 C.F.R. § 404.1512(e) and Social Security Ruling 96-5p, she also argues that Dr. Thorpe's opinion was inadequate so the ALJ should have recontacted him for a further opinion. Finally, she claims that the record is insufficient to support the ALJ's findings because it does not reflect an in depth analysis by the state consultant.
The Court finds that the ALJ was not obligated to update Lange's medical record after receiving Dr. Thorpe's letter. Ruling 96-6p states, in pertinent part, "an administrative law judge and the Appeals Council must obtain an updated medical opinion from a medical expert in the following circumstances: . . . When additional medical evidence is received that in the opinion of the administrative law judge or the Appeals Council may change the State agency medical or psychological consultant's finding that the impairment(s) is not equivalent in severity to any impairment in the Listing of Impairments." (footnote omitted). After two state medical consultants opined that Lange's impairments were not equivalent in severity to any listed impairment, the ALJ in this case received a letter from Dr. Thorpe, a physician who was not treating Lange at the relevant time period and who did not make any statement about her condition in that time period. Lange has offered no reason why Dr. Thorpe's letter should have caused the ALJ to doubt the continuing reliability of the state consultants' findings and to call for an updated medical opinion.
The Court also finds that the ALJ was not required to recontact Dr. Thorpe for a further opinion after receiving his letter. Federal regulations provide,
When the evidence we receive from your treating physician or psychologist or other medical source is inadequate for us to determine whether you are disabled, we will need additional information to reach a determination or a decision. To obtain the information, we will . . . first recontact your treating physician or psychologist or other medical source to determine whether the additional information we need is readily available. We will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques.20 C.F.R. § 404.1512(e). Ruling 96-5p further provides, in pertinent part, "Because treating source evidence (including opinion evidence) is important, if the evidence does not support a treating source's opinion on any issue reserved to the Commissioner and the adjudicator cannot ascertain the basis of the opinion from the case record, the adjudicator must make `every reasonable effort' to recontact the source for clarification of the reasons for the opinion."
Lange fails to realize that the letter from Dr. Thorpe was not "inadequate" to determine whether she was disabled in 1991; it was irrelevant. The ALJ had no obligation under the foregoing regulation or ruling to recontact Dr. Thorpe because he was not Lange's treating physician at the relevant time period and could not reasonably have contributed any additional information about her condition during that period.
Finally, the Court finds that the record was sufficient to support the ALJ's findings despite the fact that it does not reflect as in depth of an analysis by the state consultant as Lange might have liked (R. 30-40, 124-131). Ruling 96-6p states that the ALJ must receive into evidence a state consultant's opinion about equivalency to a listed impairment "as expert opinion evidence and give[it] appropriate weight." The ALJ did so and gave the opinion weight because it was consistent with the record as a whole. That is all that is required.
For the foregoing reasons, the Court finds that the ALJ was correct in not seeking an updated medical opinion after receiving Dr. Thorpe's letter. Accordingly, the Court will adopt the Report to the extent it deals with that question.
B. Credibility Determination
Lange objects to the Report's conclusion that the ALJ adequately explained its finding that her testimony was not entirely credible. Relying on Social Security Ruling 96-7p, she argues that the ALJ did not discuss the specific factors required to be considered when evaluating a plaintiff's testimony regarding pain and its limitations.
The Court finds that the ALJ appropriately discussed and supported his finding that Lange's testimony was not entirely credible. Ruling 96-7p states, in pertinent part,
[A]n individual's statement(s) about his or her symptoms is not enough in itself to establish the existence of a physical or mental impairment or that the individual is disabled. . . . [O]nce an underlying physical or mental impairment(s) 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. For this purpose, whenever the individual's statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the adjudicator must make a finding on the credibility of the individual's statements based on a consideration of the entire case record. This includes the medical signs and laboratory findings, the individual's own statements about the symptoms, any 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.
Specifically, the ALJ must consider:
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.
SSR 96-7p; accord 20 C.F.R. § 404.1529(c)(4).
In this case, the ALJ noted Lange's daily activities and the things she did that made her knees hurt. He also noted that she had some exertional limitations but that she was not on any medication or undergoing any treatment during the relevant time period that would have prevented her from working. He considered her own reports of the location, duration, frequency and intensity of the pain and whether those reports were supported by or in conflict with the objective medical evidence contained within the record, which was sparse for the relevant time period, the state consultants' expert opinions and Lange's prior statements. Lange has not pointed to any specific item that the ALJ should have considered and discussed but did not. She simply has not shown that the ALJ's credibility determination or explanation was insufficient. For this reason, the Court finds that the ALJ's credibility determination was sufficiently explained and supported by the record. Accordingly, the Court will adopt the Report to the extent it deals with that issue.
C. Full and Fair Record
Lange objects to the Report's conclusion that the ALJ adequately developed a full and fair record that contained sufficient medical evidence and expert opinions to enable to ALJ to evaluate Lange's impairment and its effects during the relevant time period. Relying on Social Security Ruling 83-20, Lange argues that the ALJ was obligated to seek further medical advice because it was possible that Lange's disability onset date was during the relevant time period.
The Court finds that the ALJ was not obligated to seek further medical advice. It is always difficult to compile a "complete" record because further medical exams and opinions may always be sought and medical conditions change over time. See Luna v. Shalala, 22 F.3d 687, 692 (7th Cir. 1994). Courts generally respect the Commissioner's reasoned judgment on when a record is "complete" enough to allow an informed decision. Id. Nevertheless, the ALJ must follow certain guidelines. For example, with respect to the onset of a disability, Ruling 83-20 states, in pertinent part,
In some cases, it may be possible, based on the medical evidence to reasonably infer that the onset of a disabling impairment(s) occurred some time prior to the date of the first recorded medical examination, e.g., the date the claimant stopped working. How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred. If there is information in the file indicating that additional medical evidence concerning onset is available, such evidence should be secured before inferences are made.
The ALJ in this case called on the services of two state medical consultants to determine Lange's functional capacity prior to September 30, 1991. The consultants rendered opinions that noted some exertional and postural limitations because of Lange's knee problems but that overall supported the ALJ's finding that Lange was not disabled at that time. A state medical consultant is an expert whose opinion must be considered by the ALJ. See 20 C.F.R. § 404.1527(f)(2)(i). In the absence of any medical evidence calling into question the state consultants' opinions in this case (see the discussion of Dr. Thorpe's letter earlier in this order), there was no need to seek a further medical opinion on the issue.
Furthermore, the ALJ was not obligated to seek additional medical evidence because there was no information in the file indicating that additional medical evidence concerning the onset was available. In addition, the evidence Lange says the ALJ should have sought out and found was not relevant to the determination of the onset of any alleged disability. The additional evidence (R. 140-175) was either not related to her knee problems at all or was so far before September 1991 (1977-1982) that it could not possibly have been considered as "concerning onset" of Lange's alleged disability in 1991. Lange suffered no prejudice from the ALJ's failure to obtain these additional records, so reversal of the Commissioner's decision on that basis is not warranted. See Nelson v. Apfel, 131 F.3d 1228, 1235 (7th Cir. 1997).
For the foregoing reasons, the Court finds that the ALJ adequately developed a full and fair record in this case and will adopt the Report to the extent it deals with that issue.
IV. Conclusion
For these reasons, the Court finds that the Commissioner's decision is supported by substantial evidence and is based on a full and fair record, ADOPTS the Report (Doc. 11) in its entirety, AFFIRMS the decision of the Commissioner to deny disability insurance benefits to Lange and DIRECTS the Clerk of Court to enter judgment accordingly.
IT IS SO ORDERED.