Opinion
Civ. 98-1003-WEB
December 28, 1999
MEMORANDUM AND ORDER
This action is before the court on plaintiff's request for a reversal of the Social Security Commissioner's denial of disability benefits under the provisions of Title XVI of the Social Security Act, 42 U.S.C. § 1381, et. seq. The court has reviewed the administrative record and the presentations of both parties. For the following reasons, the court determines that plaintiff's petition should be denied and that the Commissioner's decision should be affirmed.
Plaintiff Lisa Ma filed an application for supplemental security income benefits based on disability under Title XVI on August 10, 1994, alleging an inability to work beginning March 3, 1993, due to back pain, emotional problems, and depression. After initial denials of her claim, an evidentiary hearing was held on May 13, 1996. An unfavorable decision was rendered by the administrative law judge on May 22, 1996, and the appeals council declined to review that decision on November 7, 1997. While plaintiff appears to have been represented by counsel through these administrative proceedings, she filed a complaint pro se in this court seeking to have the decision reversed with an award of benefits, or in the alternative, for an order remanding the case to the Commissioner for additional action.
The court's standard of review is set out in 42 U.S.C. § 405 (g) which provides that "[t]he findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive." This court's review is limited to a determination of whether the unfavorable decision was supported by substantial evidence, and whether the Commissioner applied the correct legal standards. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994) The court must examine the record as a whole to determine if the decision to deny benefits is supported by that evidence. Glenn v. Shalala. supra.
Under the provisions of the federal Social Security Act, a person can be found to be under a disability only if he or she can establish that they have a medically determinable physical or mental impairment which is expected to result in death or last for a period of twelve months, which prevents that person from engaging in "substantial gainful activity." A "`physical or mental impairment' is an impairment that results from anatomical, physiological or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423 (d)(3). The qualifying impairment must be so severe that the person is not only unable to perform previous work, but is also unable to perform any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423 (d)(1)(2).
The Commissioner has established a five-part evaluation process for determining disability. If at any step in the process the Commissioner determines that the claimant is disabled or is not disabled, then the evaluation ends. Thompson v. Sullivan, 987 F.2d 1482, 1486, (10th Cir. 1993). Step one of this evaluation determines whether a claimant is presently engaged in substantial gainful activity. If he or she is not, the decision proceeds to step two to determine whether the claimant has a medically severe impairment or combination of impairments which significantly limit the ability to work. If so, the evaluation proceeds to step three to determine whether the impairment meets or equals one of a number of listed impairments which are so severe as to preclude employment. If the claimant's impairment does not satisfy this step, then the process proceeds to step four for a determination of whether the impairment prevents the person from performing past work. If it is found that the impairment is such that a person can not perform past work, then the issues proceed to step five where the burden shifts to the Commissioner to show that the claimant retains the residual functional capacity (RFC) to do other work that exists in the national economy.
Following an evidentiary hearing, the ALJ evaluated plaintiff's claim through step two of the process, finding that plaintiff was not disabled. His findings may be summarized as follows:
In the first step of the process, the ALJ found that the plaintiff (a Vietnamese immigrant, age 44) had no past work experience since she entered the United States, and that she has not "engaged in any substantial gainful activity at any time since the date of alleged onset of disability." (Record, 15)
The ALJ next considered whether plaintiff had a "severe" impairment or combination of impairments which imposed significant restrictions on her ability to perform basic work activities. In her application for benefits, plaintiff claimed that she is tired, has pain in her back and chest, can not stand or walk for a long time, and has heart disease. In evaluating these contentions, the ALJ reviewed the medical evidence in the file which may be summarized in the following manner:
The records of Chuon Duc Le, M.D., covering the period of July 16, 1987, through July 1, 1994, appear as Exhibit 18. (Record, 105-149). In December, 1988, plaintiff complained of pain in her right index finger and lumbar spine region. She reported one week later that the prescribed medications made her feel better. (Record, 138) Dr. Le's records include the information that X-rays which were taken December 15, 1988, of plaintiff's lumbar spine and right hand were normal. (Record, 149). In early 1989, plaintiff's chief complaint was a continual pain in her right index finger. In the fall of 1989, plaintiff had developed yellow spots on her eyelids and a rash on her arms. (Record, 132-133).
In February 1990, plaintiff was referred to Frank W. Hansen, M.D., because of continual complaints of pain in her finger joints. (Record, 129). Dr. Hansen noted that plaintiff's physical examination was "unremarkable" and that an examination of plaintiff's hands revealed "no significant abnormalities." X-rays showed some degenerative changes of the joints in plaintiff's right hand. It was Dr. Hansen's opinion that plaintiff was probably suffering from osteoarthritis and not lupus. Dr. Hansen prescribed Motrin and discontinued the Ascriptin. (Record, 128).
On March 8, 1990, plaintiff reported to Dr. Le that the Motrin prescribed by Dr. Hansen had not helped and she was still having pain in her right index and little fingers. (Record, 127). Plaintiff apparently had surgery on her right index finger in June, 1990 (Record, 125, 155). Plaintiff saw Dr. Le again on July 23, 1990, at which time she complained of burning urination and vaginitis. (Record, 124)
In an examination on March 6, 1991, Dr. Le noted mild tenderness in plaintiff's lumbar region. He also diagnosed plaintiff with hypercholesterolemia (Record, 124). In July 1991, plaintiff complained again of yellow spots on her eyelids and, in December 1991, she complained of indigestion after eating. (Record, 123).
In June, 1992, an X-ray of plaintiff's cervical spine was normal. (Record, 121). She complained of dizziness and vaginitis in August, 1992. (Record, 122) In October, 1992, she complained of dizziness and a problem with her right eye. Dr. Le suggested she see an optometrist (Record, 120). On December 19, 1992, plaintiff again complained of pain in her right index finger. (Record, 119)
In February, 1993, Dr. Le noted that plaintiff had chest pain, not related to exertion, possibly of chest wall origin. Throughout the rest of 1993, plaintiff continued to complain of chest pain, body aches, especially in the fingers, and dizziness. (Record, 112-116)
In January, 1994, plaintiff complained of numbness and a burning sensation in the chest. An upper GI series performed on January 25, 1994, was normal. In May, 1994, plaintiff stated that the burning was migratory, moving from place to place. (Record, 111, 143, 107)
Plaintiff began psychiatric treatment with Shivanna V, Kumar, M.D., on July 15, 1994. At that time it was noted that her chief complaints were chest pain, shortness of breath, numbness, abdominal pain, and body aches. She reported a history of panic and anxiety attacks, nightmares, and fearful flashbacks of Vietnam. (Record, 153) Dr. Kumar noted that plaintiff was anxious and depressed but without any perceptual distortions or delusional ideation. Her thoughts appeared to be well connected, with cognition intact. Dr. Kumar opined that plaintiff had an undifferentiated somatoform disorder, generalized anxiety disorder, and a panic disorder without agoraphobia. Elavil and Xanax were prescribed (Record, 154). By July 28, 1994, plaintiff reported to Dr. Kumar that she was feeling better, was less anxious and depressed, was sleeping well, and had no side effects from the medications. (Record, 152).
Dr. Kumar saw plaintiff again on September 7, 1994, when she stated she was doing better but had stopped the medications due to costs. She was instructed to continue the medications. (Record, 152)
Roger C. Trotter, M.D., saw plaintiff on November 2, 1994, at the request of the Agency. He noted a normal physical examinations; X-rays of the lumber spine and chest were normal, an EKG showed some inversion of T wave in V2, V3, V4 but was otherwise normal. (Record, 155-157). Dr. Trotter was of the opinion that despite some complaints of aches and pains, there was no objective evidence to indicate plaintiff would have any difficulty sitting, standing, walking, lifting, carrying or handling objects, hearing, speaking, or traveling. (Record, 155)
On July 28, 1994, Dr. Kumer sent a medical statement to the Kansas Department of Social and Rehabilitation Services, checking a box on the form that plaintiff had a physical or mental condition which prevented her from gainful employment, specifically undefined somatoform disorder, anxiety disorder, and diabetes. (Record, 188). However, in a report dated November 16, 1994, Dr. Kumar reported to the state agency that plaintiff was not seen as psychotic or having any functional disorders. She was able to perform simple instructions and routine daily tasks. She was able to maintain concentration fairly well, perform independently, and follow a work schedule. (Record, 159-160).
Plaintiff reported to Dr. Kumar on November 10, 1994, that she had been doing well but had stopped taking the medications and was again having anxiety attacks. Dr. Kumar noted that when plaintiff did take the medications there were no reported side effects. She was again advised to take her medications. (Record, 192)
On January 17, 1995, plaintiff reported to Dr. Kumar that again she had stopped taking the medications and had anxiety attacks with sweating, shortness of breath, and dizzy spells. Her physical examination was within normal limits. Dr. Kumar gave her a prescription for Xanax and Elavil. (Record, 192)
Plaintiff returned on March 14, 1995, and reported depression and anxiety attacks. Dr. Kumar prescribed Effexor for depression. Plaintiff reported on June 7, 1995, that she was doing well physically, and that her panic attacks had subsided with medication. On September 11, 1995, plaintiff stated that she had panic attacks at times and was generally depressed about her financial and family situations and pain in her hands. Dr. Kumar noted that she had no side effects from the medications and in addition to the Xanax and Elavil, a prescription for Rilavon was issued to alleviate joint pain. (Record, 191).
Dr. Kumar completed another medical statement for the Kansas agency on January 22, 1996. She checked boxes to indicate plaintiff had diabetes with severe neuropathy resulting in marked difficulty standing, walking or using the hands, and functional psychotic disorders which caused severe functional limitations precluding competitive employment and requiring ongoing psychiatric or psychological treatment. (Record, 199-204).
This medical statement was sent to the state agency to determine plaintiff's eligibility for state welfare assistance and participation in work programs. (Record, 199)
With reference to the medical statements sent to the state agency by Dr. Kumar, the ALJ noted that although "Dr. Kumar's medical records do not support a finding of severe impairments, they do indicate that [Plaintiff] is unable to afford medication without the medical card and without medication she does experience problems." (Record, 17)
At the evidentiary hearing on plaintiff's claim she was represented by counsel from the Kansas Rural Legal Services agency, and she was provided with a Vietnamese interpreter for her testimony.
Plaintiff's testimony at the hearing may be summarized in this manner:
She was born in Vietnam and had completed six years of school in that country. She testified that while she had worked as a seamstress there sewing clothes, she has never been employed in the United States and that she can no longer sew or use scissors because of pain in her hands. She has attended English language classes for 5 years in the United States and has a limited ability to read and speak English. Plaintiff claimed that she has pain all over her body; that her medication makes her tired and dizzy; that the medication helps with the pain, but she has to take it all week for it to help; that she has trouble sleeping. In addition plaintiff stated that she can lift 5 pounds, stand 25 to 30 minutes and sit for 30 minutes; she has no hobbies, no recreation, and sometimes watches television.
Michael J. Wiseman, a vocational expert, testified in response to a hypothetical question which assumed plaintiff's age, education and work experience, as well as an individual who had mild symptomatic complaints for pain and anxiety. The question further assumed that the individual was limited in her ability to speak English and would need routine repetitive work. The expert testified that given those limitations, such an individual could perform unskilled light work such as a production assembly worked. (Record, 253, 255, 256)
In arriving at his decision, the ALJ determined that plaintiff has no severe impairment or combination of impairments, which would significantly limit her ability to perform basic work-related functions and, therefore, a finding that she was not disabled was reached without the need for consideration of the remaining steps in the sequential evaluation process. While the ALJ concluded that plaintiff has back pain, emotional problems and depression, her impairments are not severe and do not cause significant vocational limitations.
In arriving at this decision, the ALJ considered plaintiff's testimony relating to the subjective nature and extent of her pain in accordance with the requirements set out by this circuit in Luna v. Bowen, 834 F.2d 161, 165-166 (10th Cir. 1987), andThompson v. Sullivan, supra, 987 F.2d at 1489 (10th Cir. 1993). In so doing, the ALJ found that plaintiff's descriptions of her pain and medical condition were "not entirely credible" in light of the medical evidence in the record. (Record, 18):
The claimant's statements concerning her impairments and their impact on her ability to work are not entirely credible. Although the claimant testified that she has greatly limited her activities, the medical evidence does not show any necessity to limit her activities to this degree. Dr. Trotter noted that there was no objective evidence of any limitations. Records from Dr. Kumar did not indicate any functional disorders. The records note that the claimant is not always compliant with her medication, however, when she remains on her medication she does well. Dr. Kumar stated that she can care for herself, family and home. She maintains social relationships. She is able to maintain concentration and can keep a work schedule (exhibit 22). Claimant's dress, bearing and demeanor at the hearing did not indicate any limitations. There was no developmental limitation of note and she was able to give extended answers to inquiries which belied any lack of concentration.
* * * * *
. . . Although the claimant stated that the medications make her tired and dizzy, medical records from Dr. Kumar repeatedly state that she has no side effects from the medication. Claimant stated that she has difficulty sleeping, however, Dr. Kumar noted that once she began her medication regimen she sleeps well (exhibit 32/2). Dr. Kumar. completed paperwork to entitle the claimant to a medical card, however, his medical records do not establish a severe impairment.
On the application for benefits, the claimant stated that she has heart disease, however the medical record contain (sic) no allegation or evidence supporting any heart disease. Claimant testified to physical limitations, lifting 5 pounds, standing 25-30 minutes and sitting 30 minutes; which are not supported by medical evidence (exhibit 21)
Exhibit 21, Record p. 155, is the report of Dr. Trotter dated November 2, 1994. In his examination of plaintiff's extremities, he found:
normal range of motion of the shoulders, elbows, hands, knees, hips and ankles. Muscle strength equal and normal bilaterally. BACK: she can bend to 30 degrees, extend to 5 degrees, left lateral bend to 10 degrees and right lateral bend to 15 degrees. Lumbar spine-normal vertebral. Dorsal spine is normal . . .
In terms of evaluating this lady, other than some complaints of aches and pains, she don't (sic) have any objective evidence that there is a problem with sitting, standing, walking, lifting, carrying or handling objects, hearing, speaking or travelling. She moved about the room well, got on and off of the table well, sat up and laid down without difficulty.
In papers filed pro se in this appeal, it appears that plaintiff was receiving a medical card and cash assistance payments through the Kansas Social Rehabilitation Services. Under state regulations, she was scheduled to participate in the "Welfare-To-Work program, a mandatory requirement if she wished to continue receiving her current assistance from the state agency.
Apparently it was the opinion of state authorities that she was not suitable for employment training and on April 23, 1998, she was informed that she was exempt from the "Kan-Work" program, this decision to "have no effect on [her] cash assistance case."
The decision of the state agency regarding plaintiff's suitability for employment training is not relevant to a decision regarding her right to disability benefits under federal law.
The court finds that the ALJ properly considered plaintiff's subjective complaints of pain and limitations in assessing her ability to perform work functions. His finding that plaintiff was "not entirely credible" in her testimony is supported by the medical evidence and his personal observance of plaintiff at the hearing. After fully reviewing the record in this case, the court determines that the finding of the ALJ that plaintiff does not have any impairment which significantly limits her ability to perform basic work-related functions and that she has not been under a disability at any time as defined under the provisions of the Social Security Act, is supported by substantial evidence. Under these circumstances, the decision of the Commissioner must be affirmed. Accordingly,
IT IS ORDERED that plaintiff's motion seeking reversal of the Commissioner's denial of disability benefits under the provisions of Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq. be, and it is hereby DENIED;
IT IS FURTHER ORDERED that the decision denying disability benefits to plaintiff, be, And it is hereby AFFIRMED.
SO ORDERED this 28th day of December, 1999.