Opinion
No. 02-1449 SC
September 9, 2002
JUDGMENT
In accordance with the Court's Order Granting Defendants' Motion for Summary Judgment and Denying Plaintiff's Motion for Summary Judgment entered by the Court in the above-captioned matter, it is hereby ORDERED, ADJUDGED, and DECREED that:
Judgment shall be entered in this action in favor of Defendant and against Plaintiff McFadden.
IT IS SO ORDERED.
I. INTRODUCTION
Plaintiff Terry McFadden ("Plaintiff") has moved for summary judgment on his action seeking review of the Commissioner of Social Security's final decision denying his claim for Supplemental Security Income. Defendant Jo Anne Barnhart ("Defendant") has cross-motioned for summary judgment in her favor. For the reasons set forth below, this court denies Plaintiff's motion and grants Defendant's.
II. BACKGROUND
In March, 2001, Plaintiff filed an application for Supplemental Security Income under Title XVI of the Social Security Act. The Social Security Administration denied his claim initially and again on reconsideration, and Plaintiff sought a hearing before an Administrative Law Judge (ALJ). The ALJ denied Plaintiff's claim. Plaintiff appealed his claim to the Social Security Administration Appeals Council, which denied review. Following the Appeals Council's denial, Plaintiff filed this claim in federal court.
Plaintiff is a forty-five year old male. For years, he has complained of chronic pain, often in his back and shoulders but also sometimes in his legs, wrists, and elsewhere in his body. In addition, he has complained of fatigue and of depression associated with his pain. He has an irregular employment history; he last held a regular job in 1987, and has not worked at all since 1994, when he claims he injured his back performing clerical work. Since that time, he was primarily occupied with taking care of his mother, who recently passed away. His testimony at the administrative hearing suggests that he is now only minimally active.
The record contains numerous reports from medical clinics Plaintiff has visited since 1994. His visits have been frequent since 2000. Between 1994 and 2000, he received more sporadic treatment and had several missed appointments. The marginally illegible clinical reports document a variety of subjective complaints but very few objective findings. Diagnostic tests generally failed to reveal a particular source for Plaintiff's ailments, though various doctors suggested asthma, arthritis, and spinal disorders. One medical examiner, who Plaintiff visited at the request of the Social Security Administration, concluded that Plaintiff was basically healthy and noted evidence of dissembling, and another doctor later suggested that other than possible lower back pain Plaintiff was basically in good health. Despite the lack of a definitive diagnosis, Plaintiff has taken a variety of medications over the years, including antidepressants and numerous painkillers.
The most recent documentation in the record is from clinical visits during the summer of 2001. These documents include a May 29, 2001 Clinic Progress Report from the Alameda County Medical Center. The handwritten report, signed by a doctor whose name appears to be "Neuwelt," contains the inscription "A: Fibromyalgia/soft tissue somatic pain synd." Tr. at 12. Directly below this, in handwriting that appears to be different but is even less legible, someone wrote what appears to be the words "probable fibromyalgia. . . ." Id.
Fibromyalgia is "a common, but elusive and mysterious, disease, much like chronic fatigue syndrome, with which it shares a number of features. Its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are `pain all over,' fatigue, disturbed sleep, stiffness, and — the only symptom that discriminates between it and other diseases of a rheumatic character — multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that a patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch. All of these symptoms are easy to fake, although few applicants for disability benefits may yet be aware of the specific locations that if palpated will cause a patient who really has fibromyalgia to flinch." Sarchet v. Chater, 78 F.3d 305, 306-07 (7th Cir. 1996) (citations omitted).
Plaintiff did not present this report to the ALJ at the hearing, and did not mention the possible fibromyalgia diagnosis. At the hearing, Plaintiff's attorney requested additional time to gather information for the record. The ALJ granted three weeks, and, at the close of the three weeks, granted Plaintiff's attorney's request for another three week extension of the period. On September 4th, after more than six weeks had passed, Plaintiff submitted the additional documentation to the ALJ.
The ALJ issued his opinion on October 23, 2001. He concluded that Plaintiff had failed to show the existence of any severe disability, and based this conclusion on the lack of objective evidence and his conclusion that Plaintiff's subjective complaints lacked credibility.
The ALJ discussed Plaintiff's medical records but made no mention of the fibromyalgia assessment. He noted that Plaintiff had produced scant objective evidence supporting any particular diagnosis, and observed that most diagnostic tests had failed to reveal any underlying impairment.
In support of his conclusion that Plaintiff lacked credibility, the ALJ noted the doctor's report finding evidence of dissembling, Plaintiff's almost total lack of work history, answers provided during the hearing that the ALJ found insufficient or unsatisfactory, and Plaintiff's supposed failure to provide documentation after the hearing. The ALJ speculated that in 1994 Plaintiff had conveniently developed an injury to avoid doing work mandated by the General Assistance program. He concluded that he "strongly [felt] that the claimant was dissembling." Tr. at 25.
Plaintiff appealed the ALJ's decision to the Appeals Council. On January 28, 2002, the Appeals Council wrote a letter to Plaintiff stating that, despite considering the additional evidence provided by Plaintiff, it had found no basis for reviewing the ALJ's decision. On June 6, 2002, the Appeals Council sent a letter to Plaintiff's attorney, also stating that, despite reviewing the additional evidence, it had found no basis for changing either the ALJ's decision or the Appeals Council denial. The Appeals Council did add the additional evidence to the record.
Plaintiff resubmitted the evidence he had provided to the ALJ on September 4th. The Appeals Council treated this evidence as new, and appears to have assumed that the ALJ did not consider it in his evaluation.
On March 25, 2002, Plaintiff filed his complaint with this court. The complaint alleges that the Commissioner's decision was not supported by substantial evidence, that the Commissioner applied an erroneous legal standard, and that Plaintiff was denied a full and fair hearing by the ALJ. On July 18, Plaintiff moved for judgment on the pleadings and transcript. Defendant filed a cross-motion for summary judgment on August 14.
III. LEGAL STANDARD
This Court may set aside the ALJ's decision only if it is based on an incorrect application of law or is not supported by substantial evidence. Substantial evidence means "more than a scintilla, but less than a preponderance." Reddick v. Chater, 157 F.3d 715, 720. The court must review the record as a whole, including evidence weighing both for and against the ALJ's decision, but will not substitute its judgment for that of the ALJ if the ALJ's decision is reasonable. Id. at 720-21.
This Court's review of the record must include the additional evidence added to the record by the Appeals Council. While several circuits have held that courts may not consider such additional evidence where the Appeals Council has denied review, the 9th Circuit has held that courts must consider evidence added to the record by the Appeals Council regardless of whether that evidence was before the ALJ. Ramirez v. Shalala, 8 F.3d 1449, 1451-52 (9th Cir. 1993); cf. Eads v. Sec. of Dept. of Health and Human Services, 983 F.2d 815-816 (7th Cir. 1993).
In determining whether an applicant is eligible for benefits, the Social Security Administration (SSA) follows a five-step process. 20 C.F.R. § 404.1520; Reddick, 157 F.3d at 721. First, the SSA determines whether the applicant is currently engaged in gainful employment. If he is, he is not disabled. 20 C.F.R. § 404.1520(b). Second, the SSA determines whether the applicant has a severe impairment; the applicant must demonstrate that he has "anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques," and that the impairment significantly interferes with his or her work activities. 20 C.F.R. § 416.908; 15 20 C.F.R. § 404.1520(c). If the applicant is suffering from such an impairment, the SSA then determines whether the impairment is included on a standardized list, or is equivalent to or more serious than an ailment on the list. 20 C.F.R. § 404.1520(d). If the applicant meets the burden of showing such an impairment, he is considered disabled. If the applicant is unable to demonstrate that his impairment is equivalent to or more severe than a listed impairment, the SSA will consider the applicant's ability to do his former job or other work based on his education, age, and experience. 20 C.F.R. § 404.1520(e)-(f).
IV. DISCUSSION
Plaintiff claims that the ALJ's decision was based on legal error and were not supported by substantial evidence. The ALJ's opinion is terse in its explanations of the links between factual conclusions and law, but does not appear to be based on any misapplication of the legal standards. Likewise, the record provides reasonable evidentiary support for the ALJ's decision.
A. Application of legal standards
Plaintiff argues that the ALJ erred in his application of the second step of the five-step evaluation process. He claims that the ALJ was obligated, once any impairment was identified, to complete steps three through five of the process, analyzing whether the impairment was severe enough to prevent Plaintiff from working. Since the record does identify that at various times Plaintiff suffered from depression, a limited range of motion, and a disc problem in his back, Plaintiff suggests that it was legal error for the ALJ to fail to complete steps three through five of the analysis for each of these impairments.
The regulations, however, are not quite so rigid in their division of the analytical steps. At step two, the ALJ must consider whether the applicant has demonstrated the existence of a "severe impairment" — one that significantly interfered with his ability to work. 20 C.F.R. § 404.1520(c). The ALJ did not explicitly state that the impairments identified did not create such a burden, but did quite clearly set forth this legal standard and then conclude that Plaintiff's impairments, if they existed, were not severe. Accordingly, the ALJ was not obligated to continue with steps three through five of the analysis.
B. Substantial Evidence
The ALJ based his denial on Plaintiff's failure to meet his burden at the second step of the evaluation process. The ALJ found that Plaintiff had produced no objective evidence establishing the existence of a severe impairment, and discounted Plaintiff's subjective complaints on the basis of his lack of credibility. Plaintiff argues that this finding of a lack of credibility is based on mischaracterization of the record. In addition, Plaintiff argues that he met his burden of proving a severe impairment, partly through objective findings in the various earlier medical reports, but most importantly through the May 2001 assessment of fibromyalgia.
Despite Plaintiff's arguments, the ALJ's conclusions regarding Plaintiff's credibility are supported by substantial evidence. One medical examiner concluded that Plaintiff may have been dissembling through an examination. Plaintiff's long history of unemployment provides some circumstantial evidence of malingering. Most importantly, determining credibility is properly the province of the ALJ, who has the opportunity to listen to and observe the applicant's testimony. Reddick, 157 F.3d at 722. Some of the reasons the ALJ cited for doubting Plaintiff's credibility seem somewhat suspect, but the ALJ clearly cited more than a scintilla of evidence in support of his conclusion, and this court will not set aside his finding.
The ALJ stated that Plaintiff's "description of the medications revealed that they were, in fact, very minimal," that "Mr. McFadden has been very guarded with regard to revealing his current daily living activities," that Plaintiff had inconsistently suggested that he was more active in years past than now, despite the fact that his back was supposedly now no worse, that Plaintiff could not satisfactorily explain his missed doctors appointments, and that Plaintiff had submitted no additional information despite his request that the record be held open. Tr. at 25.
Whether medications are "very minimal" is, of course, a judgment call, but Plaintiff did speak of using of a host of painkilling, sleep-inducing, and antidepressant drugs. Id. at 37-38, 47. Likewise, in the transcript Plaintiff appears to have asserted quite clearly that during the day he couldn't do much of anything, and the past activities the ALJ referred to appeared to consist only of limited and intermittent housework. Id. at 36, 48-49. Plaintiff stated that he missed the doctors appointments because he wasn't feeling good or lacked transportation, plausible explanations coming from someone who complains of depression and chronic pain. Tr. at 40. Finally, while Plaintiff submitted the additional information late, he did not, as the ALJ claimed, fail entirely to submit it.
Likewise, the ALJ's conclusion that Plaintiff had failed to demonstrate the existence of a severe impairment is supported by substantial evidence. Once he discounted Plaintiff's subjective complaints, the ALJ was left with very little objective evidence of a severe impairment. Various diagnostic tests had found no satisfactory explanation for Plaintiff's condition, and none of the multiple possible diagnoses stated in the medical reports appears to have been accepted by the doctors as definitive.
Plaintiff relies heavily on purported fibromyalgia diagnosis in the May, 2001 clinical report. This assessment was not accompanied by any supporting documentation or witness testimony, however, leaving the Appeals Council to guess at the significance of several scribbled words, one of which appears to be "probable". Moreover, although fibromyalgia can be identified through a test in which a doctor seeks a pain reaction at a specific set of pressure points, the clinical report does not identify any of the reasons leading the doctor to this possibly tentative conclusion. Finally, it is counterintuitive to suggest that Plaintiff would have received a diagnosis finally giving a definitive medical explanation for his years of pain and then failed, just one week later, to mention that diagnosis at the administrative hearing. In short, one ambiguous clinical report of unknown certainty does not provide grounds for overturning the ALJ's conclusion.
V. CONCLUSION
For the reasons set forth above, Plaintiff's motion for summary judgment is DENIED, and Defendant's motion for summary judgment is GRANTED.
IT IS SO ORDERED.