Opinion
CIVIL ACTION No. 00-2231-KHV.
February 16, 2001.
MEMORANDUM AND ORDER
David R. Liter appeals the final decision of the Commissioner of Social Security to deny him disability benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq., and supplemental security income benefits ("SSI") based on disability under Title XVI of the Act, 42 U.S.C. § 1381 et seq. This matter is before the Court on Plaintiff's Brief In Support Of Petition To Reverse The Decision Of Defendant (Doc. #10) filed October 9, 2000, which the Court construes as a motion for judgment. For reasons set forth below, the Court sustains plaintiff's motion in part.
There are two social security disability benefit programs — Disability Insurance, for qualified individuals who paid social security taxes for the relevant period, and Supplemental Security Income, for individuals who did not. The pertinent regulations are the same for both programs. See Eads v. Sec'y of Dep't of HHS, 983 F.2d 815, 816 (7th Cir. 1993).
Procedural Background
On May 19, 1993, plaintiff filed his initial applications with the Social Security Administration ("SSA"). He alleged a disability onset date of August 15, 1990. Plaintiff's benefit applications were denied initially and on reconsideration. On October 11, 1995, following a hearing, an administrative law judge ("ALJ") found that plaintiff was not under a disability as defined in the Social Security Act and that he therefore was not entitled to disability or SSI benefits. On January 31, 1997, the Appeals Council denied plaintiff's request for review.
On April 3, 1997, plaintiff filed an action in this Court requesting review of the SSA decision. On July 2, 1998, this Court remanded the case to the Commissioner. See Liter v. Apfel, No. 97-2180-KHV, 1998 WL 404352 (D.Kan. July 2, 1998). On March 24, 1999, following another hearing, an ALJ found that plaintiff was not under a disability and that he therefore did not qualify for benefits. On March 25, 2000, the Appeals Council declined jurisdiction. The decision of the ALJ therefore stands as the final decision of the Commissioner. See 42 U.S.C. § 405(g), § 1383(c)(3).
Factual Background
The following evidence was presented to the ALJ.
Plaintiff, David Liter, is 42 years old. Plaintiff left high school to join the military after completing tenth grade but because of bilateral patellar chondromalacia (a form of osteoarthritis) in his knees, he received a medical discharge in 1976.
Plaintiff has a G.E.D. and has taken one semester of vocational training in electronics. His past relevant work experience is as a driver of tow trucks, taxicabs and over-the-road trucks. Plaintiff fractured his right ankle in 1984, requiring surgery, and has walked with a cane since 1995. Plaintiff has not engaged in substantial gainful activity since August 1989. Plaintiff was insured for disability insurance benefits through September 30, 1992, but not thereafter.
Plaintiff's medical evidence establishes that he suffers from osteoarthritis, an impingement syndrome of the right shoulder, obstructive sleep apnea, obesity and a gastroesophageal reflux condition.
Sleep apnea is caused by periodic cessation of respiration associated with hypoxemia and frequent arousals from sleep. See 20 C.F.R. Pt. 404, Subpt. P, App. 1. Individuals with sleep apnea may have daytime drowsiness with chronic pulmonary hypertension and/or disturbances in cognitive function. See id.
In January 1993, plaintiff underwent a tonsillectomy and adenoidectomy to correct his sleep apnea. Tr. 118. On April 2, 1993, the results of plaintiff's pulmonary function testing were near normal. Tr. 137. On a Disability Report dated May 16, 1993, plaintiff reported that his sleep apnea was "kept in check by [nightly] use of an oxygen machine." Tr. 89.
In August 1993, a medical evaluation by Dr. William Kossow, University of Kansas Medical Center, concluded that plaintiff had no muscle atrophy; that he had a normal range of motion in his neck, back, shoulders, elbows, wrists, fingers, hips, knees and ankles; that he had full strength in all muscles of his upper and lower extremities; and that he had normal grip and pinch strength. Tr. 139-41. Dr. Kossow found that plaintiff also had good ligament stability in both knees and was able to manipulate fine objects well. Although plaintiff's gait favored his right leg, Dr. Kossow observed no objective factors which substantiated plaintiff's use of a cane. Tr. 141.
At the first administrative hearing on August 16, 1995, plaintiff testified that he engaged in household chores such as vacuuming, painting, going to the grocery store and mowing the lawn with a push lawn mower.
The ALJ denied plaintiff's claim at step four of the sequential evaluation, finding that plaintiff could return to his past work as a taxicab driver. Alternatively, in a one paragraph summary, the ALJ found at step five that plaintiff was not disabled under the Secretary's Appendix 2 Grid Rules. On review, this Court found that the record did not reflect substantial evidence to support the ALJ's finding at step four. The Court also found that because the ALJ did not consider the effect of plaintiff's sleep apnea, substantial evidence did not support his conclusion under step five. Accordingly, the Court remanded the matter for further development of the record.
On January 16, 1996, plaintiff underwent a sleep study at Bethany Medical Center. Dr. James S. Appelbaum concluded that plaintiff had severe obstructive sleep apnea and hypopnea syndrome responsive to nasal continuous positive airway pressure machine therapy (CPAP therapy). Tr. 388.
In March 1996, plaintiff complained of left sided hip and ankle discomfort to Dr. Russell King, his treating physician. Tr. 415. Office notes indicate that Dr. King thought plaintiff had a flare up of osteoarthritis and that he was still having trouble with insomnia despite CPAP treatment. Id.
On July 10, 1996, plaintiff underwent a follow up sleep study at Bethany Medical Center. Dr. Appelbaum indicated that the CPAP treatment controlled plaintiff's sleep apnea, but that plaintiff had developed a serious problem with periodic limb movements of sleep. Tr. 380.
In October 1996, plaintiff visited Dr. King for a follow up on knee and hip pain. Plaintiff also complained that he would awake at night with back pain. Tr. 411. On November 1, 1996, plaintiff again visited Dr. King, who noted that plaintiff was still walking with the assistance of a cane because of on-going degenerative changes in his knee, hips and lower back. Tr. 410. On November 19, 1996, plaintiff reported to Dr. King that he was "still having sleep problems" and that he "wants Rx [prescription]." Id. In December 1996, Dr. King noted that plaintiff had sleep apnea with limb movements during sleep. Tr. 408.
On March 24, 1997, after an examination, Dr. King reported that plaintiff still had persistent symptoms of sleep apnea and that the hyperaresthesia of the arm following a cough or sneeze was probably because of some underlying cervical spondylosis. Tr. 406. On June 24, 1997, plaintiff again visited Dr. King, who noted that plaintiff was still having trouble sleeping despite the CPAP therapy. Tr. 404. Dr. King also noted that plaintiff's depression was worsening with symptoms of irritability, forgetfulness and poor ability to stay on task. Id. On September 24, 1997, plaintiff again reported to Dr. King that he was not sleeping well. Tr. 402.
On February 26, 1998, plaintiff visited Dr. King, who noted that plaintiff was feeling quite a bit worse since the last visit. Office notes indicate that plaintiff was still using a cane, that plaintiff had difficulty getting up from a chair and getting up on the examination table, and that plaintiff had a lot of balance trouble and thigh muscle weakness. Dr. King noted that plaintiff had a relative amount of quadricep weakness for his size. Dr. King also noted that plaintiff had been using the CPAP machine more during the day to help fight daytime drowsiness. Tr. 399.
In May 1988, plaintiff again visited Dr. King, who noted that plaintiff was still having a lot of trouble sleeping despite the CPAP and nocturnal oxygen treatments. Office notes indicate that plaintiff was still using a cane, that his left hand was swollen over the first and second metacarpals and that his grip strength was reduced because of discomfort over the medical epinondyle. Dr. King referred plaintiff to Dr. Appelbaum for a sleep consultation. Tr. 395.
In July 1988, plaintiff consulted with Dr. Appelbaum. Dr. Appelbaum reported that as a result of plaintiff's neurological condition, he thought that plaintiff's sleep apnea was poorly controlled and that he continued to suffer from periodic limb movements of sleep. Dr. Appelbaum also noted that plaintiff had a component of chronic pain causing wakefulness during the night and that plaintiff had a worrisome symptom of sneeze-related paresthesias which implied some cervical spine pathology. Tr. 378. Dr. Appelbaum recommended a follow up sleep study to determine whether bi-positive airway pressure (BiPAP) treatment would help plaintiff, but he noted that plaintiff could not afford the treatment and his Medicaid would not cover the sleep study. Tr. 378-79.
On August 18, 1998, Dr. Appelbaum again examined plaintiff. Dr. Appelbaum found that an increased CPAP level of 15 allowed plaintiff to sleep a little bit better, but that plaintiff still had daytime somnolence. Dr. Appelbaum noted that plaintiff had neck and back pain, osteoarthritis, obstructive sleep apnea and hypopnea. Tr. 377.
On August 31, 1998, Dr. Asghar M. Chaudhary examined plaintiff. Dr. Chaudhary concluded that plaintiff had (1) low back pain; (2) right knee pain, possibly secondary to osteoarthritis; (3) GERD with reflux esophagitis; (4) sleep apnea; (5) headaches; (6) osteoarthritis; and (7) obesity. Tr. 359-61. Dr. Chaudhary also noted that plaintiff had smoked approximately a half pack of cigarettes per day for the past 23 years.
On October 6, 1998, Dr. Russell King, plaintiff's treating physician, issued a report regarding plaintiff. See Tr. 392. Dr. King noted that plaintiff had been disabled for some time because of osteoarthritis, which required him to use a cane. Dr. King also stated that plaintiff had "a lot of daytime drowsiness" due to sleep apnea. Dr. King noted that the sleep apnea was controlled pretty well with a CPAP machine which plaintiff used at night. Dr. King observed, however, that plaintiff was "soundly asleep" in the exam room after waiting approximately 15 minutes. Dr. King concluded that if plaintiff did work, he would need to be in a job that did not require any physical labor or any repetitive activity and a job that would allow him the ability to doze off at rather frequent intervals. Dr. King further noted that plaintiff should not be in a job which requires driving because it is "highly likely" that he would doze off while driving.
On January 5, 1999, after a follow up visit with plaintiff, Dr. King reported that plaintiff "continues to have trouble with sleep apnea despite seeing Dr. Appelbaum and having both his medications and machine adjusted." Tr. 438. Dr. King noted that with plaintiff's sleep apnea still not very well controlled, he did not see any significant employment opportunities. Id.
At the second administrative hearing on January 14, 1999, plaintiff testified that his daily activities are limited due to pain, hand swelling, numbness, knee instability, breathing problems, feelings of depression, and impaired concentration and memory. Plaintiff testified that the surgery to remove his tonsils and adenoids in 1993 had actually made his condition worse. He testified that he gets one to three hours of decent sleep per night. Plaintiff testified that on a daily basis, he dozes off three to four times for approximately 30 to 60 minutes. Sometimes, plaintiff dozes off while talking to someone on the telephone or in person. Plaintiff also testified that he uses an oxygen concentrator and CPAP machine at night, but that he continues to doze off between two and four times per day. Tr. 465-66. Plaintiff's wife corroborated his testimony regarding sleeping and dozing off during the day. Tr. 486-87, 489-90.
Plaintiff testified that he had been treated for depression, but that his depression was caused by the constant pain. Plaintiff acknowledged that his depression was not a disabling factor and that he was not claiming a mental impairment. Tr. 475-76.
Plaintiff testified that his right knee and ankle problems have progressively worsened since his 1984 injury and that his left knee also has been impacted. Tr. 466-69. He stated that he always uses a cane when he walks and that he cannot walk more than a half block without resting. Tr. 477. Even with a cane, plaintiff testified that he falls down frequently. Tr. 470. Plaintiff further testified that he has left elbow and rotator cuff problems. Tr. 473-74.
Plaintiff testified that he also experiences severe pain in his hips and low back. He experiences more pain if he sits or stands in one place for an extended period. Plaintiff also described problems with numbness in his arms and hands, particularly when he sneezes or coughs. He also testified that he could not stand for more than ten minutes because of lower back and right leg pain. Tr. 477. He testified that he could not sit down for more than 20 or 30 minutes because of pain in his left side. Plaintiff's wife also testified that he could not sit in one place for long periods of time. Tr. 488-89.
Finally, plaintiff testified that he performs very limited household chores such as helping his kids study and paying bills. Tr. 478-79. Plaintiff testified that he also drives short distances, but that his wife is usually with him. Tr. 472, 476.
The Commissioner retained Lynn I. DeMarco, M.D. to testify as a medical expert. See Tr. 491-504. Dr. DeMarco reviewed the evidence and heard plaintiff's testimony. Dr. DeMarco testified that plaintiff had degenerative arthritis of the right ankle; chronic low back pain without radiculopathy with x-rays of the lumbar spine and pelvis showing no bony or nerve abnormalities; complaints of knee pain with no bony abnormalities; bulging discs at C3-4 but no structural abnormality or nerve impingement; right shoulder tendonitis; left elbow epicondylitis; and obstructive sleep apnea. Tr. 492-94.
The Commissioner also retained Janice Hastert to testify as a vocational expert. Hastert testified that based on the ALJ's description of plaintiff's impairments, he could not perform his past relevant jobs, but that he could perform a variety of sedentary jobs such as a security monitor, electronics assembler and phone solicitor. Tr. 511. Hastert acknowledged that if plaintiff had trouble staying awake at work or if he had to miss two or three days per month because of his medical problems, plaintiff would not be able to perform the sedentary jobs or any job. Tr. 516.
The record indicates that part of Hastert's answer was inaudible. Tr. 516. Defendant, however, does not contest plaintiff's description of Hastert's testimony. Moreover, if plaintiff dozed off at the sedentary jobs mentioned, a vocational expert certainly would conclude that he could not perform such jobs. See Biggs v. Apfel, No. 99-C-3446, 2000 WL 1346702, at * 8 (N.D.Ill. Sept. 14, 2000) ("because of his severe obstructive sleep apnea, [plaintiff] falls asleep several times a day. For obvious reasons, a person who falls asleep unexpectedly cannot work effectively as a cashier.").
In his order of March 24, 1999, the ALJ made the following findings:
1. Claimant met the disability insured status requirements of the Act on August 15, 1990, the date claimant stated he became unable to work, and continued to meet them through September 30, 1992.
2. Claimant has not engaged in substantial gainful activity since August 15, 1990.
3. The medical evidence establishes that claimant has a history of a right ankle fracture with surgical insertion of a plate, right shoulder tendonitis, left elbow epicondylitis, chronic low back pain, C3-4 disc bulging, complaints of knee pain, and obstructive sleep apnea, but he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
4. The allegations of claimant and his wife are found not credible for the reasons set forth above.
5. Claimant has at all times pertinent to this decision had a residual functional capacity for some sedentary work. He cannot tolerate prolonged sitting or standing and must be allowed to alternate these positions to relieve pain or other discomfort. He is able to lift a maximum of ten pounds.
6. Claimant is unable to perform his past relevant work as a truck driver, tow truck driver, or cab driver.
7. Claimant is 40 years old, which is defined as a "younger" individual.
8. Claimant completed the equivalent of a high school education.
9. Claimant does not have any acquired work skills which are transferable to the skilled or semiskilled work activities of other work.
10. Based on a capacity for sedentary work with the additional restrictions described above, the framework of the vocational regulations, justify a conclusion that claimant, considering his residual functional capacity, age, education, and work experience, is not disabled in light of the sedentary jobs which exist in significant numbers in the national economy which claimant can perform. Examples of these jobs, as identified by the vocational expert, include security monitor, electronics assembler, and telephone solicitor.
11. Claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision ( 20 C.F.R. § 404.1520(f) and 416.920(f)).
Tr. 325-26.
Standard Of Review
The ALJ's decision is binding on the Court if supported by substantial evidence. See 42 U.S.C. § 405(g); Dixon v. Heckler, 811 F.2d 506, 508 (10th Cir. 1987). The Court must determine whether the record contains substantial evidence to support the decision and whether the ALJ applied the proper legal standards. Castellano v. Sec'y of HHS, 26 F.3d 1027, 1028 (10th Cir. 1994). While "more than a mere scintilla," substantial evidence is only "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). Evidence is not 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." Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir. 1985) (citation omitted).
Analysis
Plaintiff bears the burden of proving disability under the SSA. See Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). The SSA defines "disability" as the inability to engage in any substantial gainful activity for at least twelve months due to a medically determinable impairment. See 42 U.S.C.A. § 423(d)(1)(A) (1996). To determine whether a claimant is under a disability, the Commissioner applies a five-step sequential evaluation: (1) whether the claimant is currently working; (2) whether the claimant suffers from a severe impairment or combination of impairments; (3) whether the impairment meets an impairment listed in Appendix 1 of the relevant regulation; (4) whether the impairment prevents the claimant from continuing his past relevant work; and (5) whether the impairment prevents the claimant from doing any kind of work. 20 C.F.R. § 404.1520, 416.920 (1996). If a claimant satisfies steps one, two and three, he will automatically be found disabled; if a claimant satisfies steps one and two, but not three, then he must satisfy step four. If step four is satisfied, the burden shifts to the Commissioner to establish that the claimant is capable of performing work in the national economy. See Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988).
Here, the ALJ denied benefits at step five. At step five, the fact finder must determine whether the claimant has the residual capacity to perform other work in the national economy in view of his age, education and work experience. See Bowen v. Yuckert, 482 U.S. 137, 148 (1987). The Commissioner bears the burden of proof at step five. See id. at 146 n. 5. To meet this burden, the Commissioner must show that a claimant can perform work "in the claimant's residual functional capacity category." Talbot, 814 F.2d at 1462. Here, the ALJ found that plaintiff was unable to sit or stand in one place for long periods of time, but that he could perform a job with a sit/stand option such as a security monitor, electronics assembler or telephone solicitor. Tr. 325-26. In reaching his conclusion, the ALJ agreed that plaintiff had obstructive sleep apnea, see Tr. 325, but rejected the testimony of plaintiff and his wife that he dozes off three to four times each day. The ALJ also apparently rejected Dr. King's opinion that plaintiff could work only in a job which allowed him to doze at rather frequent intervals.
I. Evaluation Of Plaintiff's Credibility
Plaintiff first argues that the ALJ failed to make proper credibility findings regarding his limitations caused by sleep apnea and various other ailments. The Tenth Circuit has set forth the proper framework for analyzing evidence of disabling pain or fatigue. The relevant factors are (1) whether claimant proves with objective medical evidence an impairment that causes pain or fatigue; (2) whether a loose nexus exists between the impairment and the subjective complaints of pain or fatigue; and (3) whether the pain or fatigue is disabling based upon all objective and subjective evidence. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); Luna v. Bowen, 834 F.2d 161, 163-64 (10th Cir. 1987). In the final step, the ALJ should consider the following factors:
Subjective complaints such as fatigue are generally analyzed under the same standard as complaints of pain. See Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991); Jackson v. Bowen, 873 F.2d 1111, 1114 (8th Cir. 1989).
the levels of medication and their effectiveness, the extensiveness of the attempts (medical or nonmedical) to obtain relief, the frequency of medical contacts, the nature of daily activities, subjective measures of credibility that are peculiarly within the judgment of the ALJ, the motivation of and relationship between the claimant and other witnesses, and the consistency or compatibility of nonmedical testimony with objective medical evidence.
Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988).
Here, the ALJ concluded that plaintiff's pain and fatigue was not disabling based upon all objective and subjective evidence. In particular, the ALJ noted that plaintiff's subjective complaints were exaggerated and not disabling because of (1) the absence of sufficient objective medical evidence to support the complaints, (2) the infrequency of plaintiff's attempts to obtain relief and the effectiveness of that relief, (3) inconsistent statements by plaintiff and (4) plaintiff's sporadic work history. Tr. 322-23.
A. Consistency Of Plaintiff's Complaints With Objective Medical Evidence
The ALJ first rejected plaintiff's complaints because of an absence of objective medical evidence. Tr. 322. Substantial evidence supports the ALJ's conclusion that plaintiff's impairments including his sleep apnea were not adequately supported by the objective medical evidence before January 16, 1996. In August 1993, a medical evaluation by Dr. Kossow concluded that plaintiff had no muscle atrophy; that he had a normal range of motion in his neck, back, shoulders, elbows, wrists, fingers, hips, knees and ankles; that he had full strength in all muscles of his upper and lower extremities; and that he had normal grip and pinch strength. Dr. Kossow found that plaintiff also had good ligament stability in both knees and was able to manipulate fine objects well. Although plaintiff's gait favored his right leg, Dr. Kossow observed no objective factors which substantiated plaintiff's use of a cane. In February 1995, Dr. King stated that plaintiff had full range of motion of the left shoulder, and that his hands, wrists and elbows were unremarkable. He also noted that plaintiff was able to lift his right arm almost completely. Tr. 160.
The ALJ did not specifically address the objective evidence, or lack thereof, with respect to plaintiff's sleep apnea and daytime somnolence. Objective medical evidence, however, did not support plaintiff's complaints regarding sleep apnea before January 16, 1996. In 20 treatment visits from 1990 through 1992, the medical notes only once mention a sleep disturbance. Tr. 319-20. In January 1993, plaintiff underwent a tonsillectomy and adenoidectomy to correct his sleep apnea. Tr. 118. On April 2, 1993, the results of plaintiff's pulmonary function testing were near normal. Tr. 137. On a Disability Report dated May 16, 1993, plaintiff reported that his sleep apnea was "kept in check by [nightly] use of an oxygen machine." Tr. 89. On that same report, plaintiff stated that he drove a car daily. Tr. 86. On a disability pain questionnaire dated June 14, 1993, plaintiff stated that he could no longer perform work as a truck driver or tow truck operator. Plaintiff did not claim, however, that he was unable to perform non-physically demanding sedentary work. Tr. 92. From 1993 through 1995, except for one reference to "daytime sleepiness" on September 9, 1993, see Tr. 157, the medical notes are silent regarding any complaints of daytime drowsiness. In March 1994, one doctor noted that plaintiff's treatment for sleep apnea was "coming along fairly well" with no reference to daytime drowsiness. Tr. 166.
Objective medical evidence did support plaintiff's complaints related to sleep apnea beginning January 16, 1996. On that day, a sleep study showed that plaintiff had "severe obstructive sleep apnea" responsive to CPAP. Tr. 388. In March 1996, however, Dr. King noted that plaintiff was still having trouble with insomnia despite CPAP therapy. Tr. 415. Defendant argues that in July 1996, a sleep study showed that plaintiff's sleep apnea was well-controlled with CPAP treatment. Tr. 383. The July 1996 sleep study also revealed, however, that plaintiff had a "serious problem with periodic limb movements" which woke him from his sleep. Tr. 383. In July 1998, Dr. Appelbaum, the same doctor who interpreted plaintiff's sleep studies in 1996, stated that plaintiff's sleep apnea was poorly controlled and that he had periodic limb movements and chronic pain which also contributed to his wakefulness during the night. Tr. 378. In August 1998, Dr. Appelbaum again noted that plaintiff had obstructive sleep apnea and that he still had daytime somnolence. Tr. 377. Moreover, in October 1998, Dr. King found plaintiff sound asleep in the examination room after waiting less than fifteen minutes. The objective medical evidence is not inconsistent with a finding that since January 1996, plaintiff has had daytime drowsiness. The Court recognizes that the objective medical evidence is not dispositive (or even strongly suggestive) either way on the question whether plaintiff has had daytime drowsiness. Absent a medical observation of plaintiff during the day, however, such precise evidence is not available. The best objective corroborating evidence of daytime drowsiness available to the ALJ was the observation of Dr. King that plaintiff was sound asleep in the examination room after waiting less than fifteen minutes — an observation which only bolsters the credibility of plaintiff's statement that he dozes off during the day.
As of January 16, 1996, plaintiff had a definitive diagnosis of obstructive sleep apnea. None of plaintiff's physicians suggested that plaintiff may have exaggerated the amount of his daytime drowsiness or that the amount of drowsiness he reported was inconsistent with the objective medical evidence. The medical community has not developed a simple laboratory test for daytime drowsiness. See Sisco v. United States Dep't of HHS, 10 F.3d 739, 744 (10th Cir. 1993). Accordingly, a claimant's uncontested testimony may not be rejected simply because it has not been proven conclusively in a laboratory setting. See id.
B. Extensiveness Of Attempts To Obtain Relief And Their Effectiveness
The ALJ next noted that plaintiff generally sought "treatment on a sporadic basis for acute exacerbations of illness, which for the most part resolve with treatment." Tr. 322. Substantial evidence supports the ALJ's conclusion with respect to plaintiff's impairments before January 16, 1996. With respect to plaintiff's sleep apnea beginning January 16, 1996, however, the ALJ's conclusion is overwhelmed by other record evidence. Plaintiff underwent sleep studies in January 1996 and July 1996. In March 1996, office notes indicate that plaintiff was still having trouble with insomnia despite CPAP therapy. Tr. 415. On November 19, 1996, plaintiff also reported to Dr. King that he was "still having sleep problems" and that he "wants Rx [prescription]." Tr. 410. In December 1996, Dr. King noted that plaintiff had sleep apnea with limb movements during sleep. Tr. 408. In March and June 1997, plaintiff was still having trouble sleeping despite CPAP treatments and displayed persistent symptoms of sleep apnea. Tr. 404, 406. On September 24, 1997, plaintiff reported to Dr. King that he was still not sleeping well. Tr. 402. In February 1998, Dr. King noted that plaintiff had been using the CPAP machine more during the day to help fight daytime drowsiness. Tr. 399. On May 21, 1998, Dr. King noted that plaintiff had a lot of sleep trouble despite the CPAP and oxygen concentrator machines. Tr. 395. On July 21, 1998, Dr. Appelbaum noted that plaintiff had excessive daytime somnolence and that his sleep apnea was poorly controlled. Tr. 378. On August 18, 1998, Dr. Appelbaum noted that plaintiff still had daytime somnolence, but that he cannot afford another sleep study. Tr. 377. On October 6, 1998, Dr. King noted that plaintiff had a lot of daytime drowsiness because of sleep apnea. Tr. 392. In January 1999, Dr. King noted that plaintiff still had trouble with sleep apnea despite having his CPAP and oxygen concentrator machines adjusted. Tr. 438. Plaintiff's attempts at relief are one factor for the ALJ to consider in evaluating plaintiff's subjective complaints of fatigue. See Huston, 838 F.2d at 1132. With respect to plaintiff's sleep apnea beginning January 16, 1996, the ALJ's conclusion that plaintiff sought treatment on a "sporadic basis for acute exacerbations of illness, which for the most part resolve with treatment" is not supported by substantial evidence. The ALJ did not explain why he discounted plaintiff's numerous attempts for relief of his sleep apnea from January 1996 through January 1999. See Social Security Ruling 96-7p, 61 Fed. Reg. 34483, 34487 (S.S.A. July 2, 1996) ("Persistent attempts by the individual to obtain relief of pain or other symptoms, such as by increasing medications, trials of a variety of treatment modalities in an attempt to find one that works or that does not have side effects, referrals to specialists, or changing treatment sources may be a strong indication that the symptoms are a source of distress to the individual and generally lend support to an individual's allegations of intense and persistent symptoms.").
C. Plaintiff's Inconsistent Statements
The ALJ also noted several inconsistencies in plaintiff's statements. First, the ALJ noted that plaintiff testified at the hearing in 1999 that he continues to drive a car even though he alleged that he dozes off as much as four times during the day. Tr. 322. Plaintiff actually testified that he drives short distances, that his wife is usually with him and that he "very rarely" drives by himself. Tr. 472, 476. In a disability report dated May 16, 1993, plaintiff reported that he drove a car daily. Tr. 86. In context, plaintiff's testimony on driving does not severely undermine (1) his testimony that he dozes off during the day or (2) the fact that he has made numerous complaints about daytime drowsiness since January 1996. See Social Security Ruling 96-7p, 61 Fed. Reg. at 34486 ("Symptoms may vary in their intensity, persistence, and functional effects, or may worsen or improve with time, and this may explain why the individual does not always allege the same intensity, persistence, or functional effects of his or her symptoms. Therefore, the adjudicator will need to review the case record to determine whether there are any explanations for any variations in the individual's statements about symptoms and their effects.").
The ALJ also noted that in a Disability Report in 1993, three years after his alleged onset date, claimant stated that he was able to go fishing occasionally with his children and visit his neighbors daily and friends and relatives weekly. Tr. 322. The ALJ further noted that plaintiff also stated that he occasionally vacuumed, which suggests a level of activity consistent with physically non-stressful work. Id. In early 1994, however, plaintiff stated that he could not cut the yard or play outdoors with his children because his legs "won't hold up." Id. In finding that plaintiff's 1993 and 1994 statements were inconsistent, however, the ALJ did not discuss the fact that in October 1993, plaintiff's knee gave out and he fell and injured his shoulder. Tr. 95. From the record, the ALJ did not try to resolve the alleged inconsistency in plaintiff's statements, which he was required to do. See Cloutier v. Apfel, 70 F. Supp.2d 271, 278 (W.D.N.Y. 1999). Moreover, the "sporadic performance [of household tasks or work] does not establish that a person is capable of engaging in substantial gainful activity." Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993) (citing Frey v. Bowen, 816 F.2d 508, 516-17 (10th Cir. 1987); see Gossett v. Bowen, 862 F.2d 802, 807 (10th Cir. 1988) ("evidence that a claimant engages in limited activities . . . does not establish that the claimant can engage in light or sedentary work activity").
Finally, the ALJ noted that in a disability pain questionnaire in 1993, plaintiff alleged that he was unable to perform his past relevant work as a truck driver and that he was unable to lift any significant weight or walk significant distances. Tr. 92, 322. At the hearing in 1999, however, plaintiff alleged that he was unable to perform even a sedentary job. Tr. 322. Plaintiff's statements may be inconsistent with a finding that he was disabled since 1990 but they are consistent with a finding that his sleep apnea became disabling at some point between 1993 and 1999. From January 16, 1996 to the second administrative hearing in January 1999, plaintiff consistently told his treating doctors that he dozed off during the day despite his regular use of several medical treatments. See Social Security Ruling 96-7p, 61 Fed. Reg. at 34486 (consistency of individual's own statements is a strong indication of credibility, especially those complaints that are made to treating or examining medical sources).
D. Plaintiff's Work History
The ALJ also relied on plaintiff's work history. A plaintiff's lack of motivation to work may be considered in determining the credibility of his subjective complaints. See Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995); Hunter v. Chater, 895 F. Supp. 1454, 1462 (D.Kan. 1995). The ALJ noted that plaintiff may have little motivation to work because he has a sporadic work history with fluctuating levels of reported earnings and breaks in employment. Tr. 70-71, 323). The ALJ also noted that plaintiff receives significant public assistance benefits which further lessens his financial need to work. Tr. 323. This factor supported the ALJ's conclusion that plaintiff was not disabled from August 15, 1990 through January 15, 1996, but it was insufficient by itself to establish that plaintiff was not disabled after January 15, 1996.
E. Overall Evaluation Of Credibility Factors
In reviewing the ALJ's credibility determinations, the Court should "defer to the ALJ as trier of fact, the individual optimally positioned to observe and assess witness credibility." Casias v. Sec'y of HHS, 933 F.2d 799, 801 (10th Cir. 1991). "Credibility is the province of the ALJ." Hamilton v. Sec'y of HHS, 961 F.2d 1495, 1499 (10th Cir. 1992). At the same time, the ALJ must explain why specific evidence relevant to each factor supports a conclusion that a claimant's subjective complaints are not credible. See Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). "Findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings." Id. (quoting Huston, 838 F.2d at 1133) (footnote omitted)). "In making a finding about the credibility of an individual's statements, the adjudicator need not totally accept or totally reject the individual's statements." See Social Security Ruling 96-7p, 61 Fed. Reg. at 34486. Rather, the ALJ "may find all, only some, or none of an individual's allegations to be credible." See id.
Here, the ALJ found some, but not all, of plaintiff's allegations to be credible. Indeed, the ALJ recognized that plaintiff cannot return to his past relevant work as a cab, tow-truck or over-the-road truck driver. The ALJ also recognized that plaintiff cannot tolerate prolonged sitting or standing, that he must be allowed to alternate positions to relieve pain or other discomfort and that he is able to lift a maximum of ten pounds. The Court finds that the ALJ conclusions regarding the credibility of plaintiff with respect to his limitations before January 16, 1996 are supported by substantial evidence. Although the ALJ could have discussed the evidence in greater detail, the record need only demonstrate that he considered all of the evidence; "an ALJ is not required to discuss every piece of evidence." Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (citing Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)).
With respect to plaintiff's limitations beginning January 16, 1996, however, substantial evidence does not support the ALJ's conclusion that plaintiff exaggerated the fact that he dozes off during the day. As explained above, beginning January 16, 1996, plaintiff consistently sought medical treatment for his sleep apnea and daytime drowsiness with very limited relief. Beginning January 16, 1996, the objective medical evidence was not inconsistent with plaintiff's allegation of daytime drowsiness. Plaintiff's prior work history and his alleged inconsistent statements were insufficient to support the ALJ's credibility determination for the period beginning January 16, 1996. Indeed the ALJ did not discredit plaintiff's testimony based solely on these two factors. Based on the ALJ's flawed credibility determination, his finding regarding plaintiff's residual functional capacity for the period beginning January 16, 1996 is not supported by substantial evidence.
The Court recognizes that it has accepted the ALJ's credibility determination with respect to plaintiff's allegation of disability before January 16, 1996, but rejected it for the following period. The Court has reached this result in part because the ALJ did not separately evaluate plaintiff's subjective complaints of pain or fatigue or attempt to divide the relevant time period as the Court has done in this order. Rather, in his discussion of plaintiff's credibility, the ALJ specifically referred almost exclusively to plaintiff's conditions other than sleep apnea. Although a few of the factors discussed by the ALJ applied to the credibility of plaintiff as a whole, the ALJ himself did not use these factors as a basis to completely reject plaintiff's testimony. If the ALJ had completely rejected plaintiff's testimony or expressed serious doubts about plaintiff's truthfulness as a whole, and evidence supported these conclusions, the Court would have certainly deferred to the ALJ without examining his findings with respect to each of plaintiff's ailments for each year that he alleges he was disabled.
II. Evaluation Of Dr. King's Opinion
Plaintiff next argues that the ALJ improperly discounted the opinion of Dr. King, a treating physician, in favor of the opinion of a medical expert, Dr. DeMarco, who testified at the hearing. As explained above, the ALJ acknowledged that plaintiff had sleep apnea, but concluded that he would not have trouble staying awake at work. In reaching this conclusion, the ALJ noted that Dr. King's opinions as a whole established that plaintiff could not perform his past relevant work, but that he could perform physically non-stressful work. Tr. 324. Plaintiff argues that the ALJ ignored Dr. King's statement that plaintiff could work only in a job which allowed him to doze off at rather frequent intervals. Tr. 392.
The ALJ must give substantial weight to the opinion of a treating physician "unless good cause is shown to disregard it." Goatcher v. United States Dep't of HHS, 52 F.3d 288, 289-90 (10th Cir. 1995). When a treating physician's opinion is inconsistent with other medical evidence, the ALJ's task is to examine the other physician's reports to see if they outweigh the reports of the treating physician. The ALJ must give specific, legitimate reasons for disregarding the treating physician's opinion that a claimant is disabled. Id. at 290. In addition, the ALJ must consider the following specific factors to determine what weight to give any medical opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion. 20 C.F.R. § 404.1527(d)(2)-(6).
In this case, the ALJ gave the following reasons for discounting Dr. King's opinion that plaintiff was disabled:
1. Dr. King did not cite any medical signs, findings, reports or evaluations to support a conclusion of total disability. Dr. King's conclusions also were not supported by the minimally abnormal medical signs and findings found by other doctors in the record.
2. Dr. King's opinion was not supported by his own examination findings of his general observations about claimant's functional restrictions. For example, in January 1999, Dr. King found some evidence of poor range of motion in the lumbar spine and claimant was quite tender over the left lateral epicondyle, but grip strength in the left arm was adequate. There was no muscle atrophy in either arm. There was pain in the left knee but no effusion, consistent with chondromalacia degenerative change. Dr. King also found that he had a pretty good range of motion, with some impingement, in the shoulders.
In evaluating plaintiff's physical impairments other than his sleep apnea, the ALJ gave specific legitimate reasons for rejecting the opinion of his treating physician. Although this Court might not have reached the same conclusion as the ALJ, the Court cannot re-weigh the evidence. See Casias, 933 F.2d at 800. Substantial evidence supports the ALJ's decision not to give the opinion of the treating physician controlling weight with respect to plaintiff's impairments other than sleep apnea and for his assessment that plaintiff was not disabled before January 16, 1996.
Plaintiff challenges only the ALJ's rejection of Dr. King's assessment of plaintiff's sleep apnea. Except for the general statements outlined above, the ALJ did not give any reasons for rejecting Dr. King's opinion that plaintiff needed a job which allowed him to doze off at rather frequent intervals. Indeed, the ALJ characterized Dr. King's opinion as follows: plaintiff could not perform his past relevant work, but he could perform physically non-stressful work. The ALJ's characterization is correct with the caveat that plaintiff must be able to doze off at rather frequent intervals. The ALJ did not explain, however, why he rejected this additional restriction. As explained above, the ALJ must give substantial weight to the opinion of a treating physician "unless good cause is shown to disregard it." Goatcher, 52 F.3d at 289-90.
The Court recognizes that Dr. King's report depended in part on the credibility of plaintiff's statements that he dozed off during the day. As explained above, however, substantial evidence does not support the ALJ's conclusion that plaintiff exaggerated the fact that he dozes off during the day. Moreover, Dr. King independently observed that plaintiff was sound asleep in the examination room in less than 15 minutes.
In his discussion of the evidence, the ALJ did note Dr. DeMarco's testimony that the treatment records for plaintiff's sleep apnea "were sparse with no evidence of an ongoing treatment program for this problem." Tr. 319. The ALJ did not actually rely on this conclusion, however, as a reason for rejecting Dr. King's opinion that plaintiff needed a job where he can doze off at rather frequent intervals. The Court therefore cannot uphold the Commissioner's denial of benefits on this basis. See Knipe, 755 F.2d at 149 n. 16; Dong Sik Kwon v. INS, 646 F.2d 909, 916 (5th Cir. 1981) (en banc); see also Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000) ("The ALJ's decision must stand or fall with the reasons set forth in the ALJ's decision, as adopted by the Appeals Council."). In any event, Dr. DeMarco's conclusion is overwhelmed by other record evidence. In 1996, plaintiff underwent two sleep studies. From January 1996 through January 1999, office notes confirm that plaintiff used CPAP and oxygen concentrator machines on a nightly basis, and that he took various medicines for his sleep apnea on a daily basis. Plaintiff testified that he still uses CPAP and oxygen machines each night and that he takes various medicines but that his sleep apnea is not under control. Tr. 201, 465-66. For the period from January 1996 through January 1999, plaintiff's treatment records for sleep apnea cannot be characterized as "sparse" with "no evidence of an ongoing treatment program."
In his discussion of the evidence, the ALJ also noted that Dr. DeMarco testified that plaintiff's sleep apnea had been complicated by weight gain and cigarette smoking. Tr. 319. Once again, the ALJ did not actually rely on this conclusion as a reason for rejecting Dr. King's opinion and the Court therefore cannot uphold the ALJ's decision on this basis. See Knipe, 755 F.2d at 149 n. 16. Moreover, plaintiff testified that he had started using a prescription inhaler in an effort to stop smoking as soon as Medicaid decided to reimburse participants. Tr. 480. With respect to plaintiff's weight gain, the evidence does not suggest that a doctor recommended plaintiff to enroll in a certain program or that plaintiff has not attempted to lose weight.
For these reasons, the Court finds that the ALJ improperly rejected the opinion of Dr. King that plaintiff must be able to doze off at rather frequent intervals during the day. Accordingly, the Court must reverse the decision of the Commissioner because he did not show that beginning January 16, 1996, plaintiff could perform work in the national economy.
III. Remedy
Plaintiff filed his application in this case May 19, 1993 — nearly eight years ago. The Commissioner has had two chances to conduct a proper determination. In light of the Commissioner's obvious failure to satisfy his burden of proof at step five, and the protracted delay which has resulted from his disposition of the proceedings, the Court finds that the judgment of the Commissioner should be reversed in part and remanded so that the Commissioner can award benefits for the period beginning January 16, 1996. See Ragland v. Shalala, 992 F.2d 1056, 1060 (10th Cir. 1993) (remanding for award of benefits because of Commissioner's "patent failure" to meet step five burden of proof and long delay because of Commissioner's erroneous disposition); Frey, 816 F.2d at 518 (case remanded for immediate award of benefits; over six years had passed since claimant sought disability; the record had been fully and fairly developed and the record as whole supported conclusion that claimant was disabled); see also Wilder v. Apfel, 153 F.3d 799, 801 (7th Cir. 1998) (after eight years, time "to bring the charade to an end"); Sisco, 10 F.3d at 746 (remanding for award of benefits; SSA "is not entitled to adjudicate a case ad infinitum until it correctly applies the proper legal standard and gathers evidence to support its conclusion") (quotations and citations omitted). Remand for an immediate award of benefits also is appropriate because "additional fact finding would serve no useful purpose." Sorenson v. Bowen, 888 F.2d 706, 713 (10th Cir. 1989) (citation omitted).
IT IS THEREFORE ORDERED that Plaintiff's Brief In Support Of Petition To Reverse The Decision Of Defendant (Doc. #10) filed October 9, 2000, which the Court construes as a motion for judgment, be and hereby is SUSTAINED in part.
IT IS FURTHER ORDERED that the Judgment of the Commissioner is REVERSED in part. The case is REMANDED to the Commissioner with directions to award benefits to plaintiff for the period from January 16, 1996 to the present.