Opinion
CIVIL ACTION No. 03-2255-KHV
March 19, 2004
MEMORANDUM AND ORDER
Sheryl W. McIntosh-Hay appeals the final decision of the Commissioner of Social Security to deny her disability benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. This matter is before the Court on Plaintiff's Brief In Support Of Reversing The Administrative Decision Of Defendant (Doc. #6) filed September 26, 2003, which the Court construes as a motion for judgment. For reasons set forth below, the Court overrules plaintiff's motion.
Procedural Background
On March 9, 1999, plaintiff filed her disability application with the Social Security Administration. She alleged a disability onset date of November 26, 1998. Plaintiff's benefit application was denied initially and on reconsideration. On April 25, 2001, the administrative law judge ("ALJ") concluded that plaintiff was not under a disability as defined in the Social Security Act and that she therefore was not entitled to disability benefits. On March 26, 2003, the Appeals Council denied plaintiff's request for review. The decision of the ALJ stands as the final decision of the Commissioner. See 42 U.S.C. § 405(g), § 1383(c)(3).
Factual Background
The following is a brief summary of the evidence presented to the ALJ.Sheryl McIntosh-Hay was born on May 15, 1953. Transcript Of Proceedings Before The Social Security Administration ("Tr.") at 34, attached to defendant's Answer (Doc. #2) filed July 29, 2003. At the time of her hearings before the ALJ, plaintiff was 47 years old. Tr. 34. Plaintiff has a high school education plus a Bachelor of Science degree in nursing. Tr. 34. Before November 26, 1998, her alleged onset date of disability, plaintiff was a registered nurse. A registered nurse performs at the medium exertional level and is a skilled position. Tr. 21.
Plaintiff's first hearing was held on January 23, 2001. The ALJ held a supplemental hearing on April 5, 2001.
Plaintiff suffers from gastroesophageal reflux disease ("GERD"); status post surgical repair with Nissen fund aplication, nowtreated and controlled with medication; history ofbronchial asthma, treated with medication; history of migraine headaches; irritable bowel syndrome; hypertension, without evidence of end organ damage and treated with medication; depression, NOS; bilateral plantar fasciitis, right greater than left, diagnosed in January of 2001; and allegations of chronic fatigue syndrome, fibromyalgia and dementia. Tr. 27.
I. Medical History
A. Gastroesophageal Reflux, Irritable Bowel, Migraine Headaches, Flushing And Fevers
On March 11, 1997, Jerry H. Feagan, M.D., performed an esophagogastroduod enoscopy with biopsy/CLO on plaintiff Tr. 253. In his operative report, Dr. Feagan noted that plaintiff's distal esophagus revealed significant reflux changes with shallow ulcerations at the GE junction, at 36 cm; suggestion of a small hiatal hernia; and mild antral gastritis. Tr. 253. He also noted that plaintiff's superior and mid esophagus was normal as was her duodenal bulb, 2nd and 3rd portion of the duodenum. Tr. 253. Dr. Feagan recommended that plaintiff continue symptomatic measures,ie. small frequent feedings, elevation of the head and increased doses of Prilosec and Propulsid, and noted that she could consider an anti — reflux procedure. Tr. 253.
Plaintiff has a history of GERD. Tr. 257. Charles Filipi, M.D., treated plaintiff, performing seven serial esophageal dilations and esophageal swallowing studies. Tr. 257. On May 29, 1997, Dr. Filipi performed laparoscopic Nissen fund aplication on plaintiff without complications. Tr. 255. At the time of surgery, plaintiff was taking Prilosec 60 mg a day and Propulsid 30-40 mg qid. Tr. 259.
A fund aplication is a plication of the fundus of the stomach around the lower end of the esophagus to treat reflux esophagitis. Dorland's Illustrated Medical Dictionary 743 (30th ed. 1994).
On December 4, 1997, plaintiff saw R. Neil Schimke, M.D., at the University of Kansas Medical Center ("KUMC"), Division of Endocrinology, Metabolism and Genetics, for her symptoms of flushing, low — grade fevers and intermittent occasional diarrhea. Tr. 290. Dr. Schimke reported that plaintiff's thyroid function was normal and that the physical evaluation was unremarkable. Tr. 290. He thought that plaintiff's symptoms could be menopausal, related to mastocytosis or represent panic attacks, and suggested that she obtain further laboratory work. Tr. 290.
Mastocytosis is a group of rare diseases which are characterized by infilitrates of mast cells in the tissues and sometimes other organs. Dorland's Illustrated Medical Dictionary 1104.
On December 8, 1997, plaintiff reported to Dr. Schimke that her most recent episodes of flushing, abdominal cramping and diarrhea had been more intense and worse. Tr. 291. Dr. Schimke ordered additional tests and started her on a combination of H1 and H2 blockers, Zantac and Allegra. Tr. 292.
By December 31, 1997, Dr. Schimke ruled out several possible diagnoses, noted that plaintiff could have insulin resistance and be in a prediabetic state and advised her to lose weight. Tr. 293. Plaintiff reported that she felt substantially better on the HI and H2 blockers. Tr. 293. Dr. Schimke did not believe estrogen deficiency in any way contributed to her flushing episodes. Tr. 293.
In March of 1998, a doctor at St. Luke's Hospital saw plaintiff for complaints of lower abdominal pain, discomfort and distention. Tr. 334. Examination revealed an ovarian cyst emanating from the right side which was followed for three months. Tr. 334. In June of 1998, plaintiff underwent an exploratory laparotomy with bilateral salpingo — oophorectomy to remove benign ovarian cysts in each ovary. Tr. 332. Her surgery went without difficulty, but her post — operative course was marked by a low grade temperature and her bowel function was slow to return to normal. Tr. 332. By the fourth post — operative day she was doing better, but she became distended and a flat plate was ordered, which had findings suggestive of an ileus. Tr. 332. On the sixth day, plaintiff was sent home and her bowel was functioning. Tr. 332.
An ileus is an obstruction of the intestines. Dorland's Illustrated Medical Dictionary 907.
On July 8, 1998, St. Luke's Hospital emergency room treated plaintiff for injuries which she sustained in a motor vehicle accident. Tr. 343. She was assessed with multiple contusions, dismissed and advised to take Tylenol and Darvocet as needed. Tr. 345.
On July 14, 1998, plaintiff underwent an ultra sound to evaluate pain and cellulitis along the incision from her exploratory laparotomy three weeks earlier. Tr. 349. The ultrasound revealed no abscess, but indicated probable diffuse fatty infiltration of the liver and cholelithiasis. Tr. 349.
Cholelithiasis is the presence or formation of gallstones. Dorland's Illustrated Medical Dictionary 353.
On August 31, 1998, Daniel R. Hinthorn, M.D., a doctor at the Infectious Diseases Clinic at KUMC, evaluated plaintiff regarding her prolonged fevers. Tr. 299. Plaintiff reported intermittent fevers since 1994, occasional night sweats and shaking chills. Tr. 299. Dr. Hinthorn was unable to diagnose plaintiff, but recommended that plaintiff reduce some of her medications and undergo further testing. Tr. 300.
On September 2, 1998, plaintiff saw Richard W. McCallum, M.D., chief of the Division of Gastroenterolgy/Hepatology at KUMC, regarding diffuse pelvic symptoms including pain and problematic bowel movement. Tr. 303. Dr. McCallum noted that a gallium scan was pending regarding Dr. Hinthorn's work on plaintiff's fevers and imaging which revealed a gallstone. Dr. McCallum advised plaintiff that they would discuss removing her gallbladder at some point, but that her gallbladder problems did not necessarily relate to all of her pelvic symptoms or bowel movement habits. Tr. 303. Dr. McCallum reduced the dosage and changed some of plaintiff's medications and ordered a gastric emptying and small bowel transit test. Tr. 304.
On November 2, 1998, plaintiff saw Dr. Filipi and reported that her GERD had returned after her car accident in July. Tr. 351. She reported that she had problems digesting food and felt like a heavy weight was on her chest, that the symptoms were frequent, that medications helped to some extent and that she had abdominal pain, diarrhea and nausea but no vomiting. Tr. 351. On November 3, 1998, plaintiff was admitted to St. Joseph's Hospital and Dr. Filipi performed a laparoscopic cholecystectomy, an intracorporeal ultrasound of her common bile duct, a liver biopsy, an upper endoscopy, take down of Nissen fund aplication and cross closure, and fund aplication reinforcement. Tr. 350. He also repaired her paraesophageal laparoscopically. Tr. 276. Following the procedure, plaintiff was asymptomatic. Tr. 276.
A cholecystectomy is a surgical removal of the gallbladder. Dorland's Illustrated Medical Dictionary 352.
On November 16, 1998, Dr. Filipi wrote a letter "to whom it may concern," stating that plaintiff had a surgical procedure on November 3 and that she could return to regular work duties on November 18, 1998. Tr. 274.
On November 23, 1998, plaintiff saw Edward Ellerbeck, M.D., of the Department of Internal Medicine at KUMC, regarding her continued malaise and unexplained fevers. Tr. 311. In addition to unexplained fevers, plaintiff reported flushing, frequent abdominal cramps and intermittent diarrhea, occasional chills and night sweats, fatigue, frequent headaches and loss of appetite accompanied by weight gain. Tr. 311. Dr. Ellerbeck reported no remarkable findings on her physical exam, a normal chemistry profile and a negative gallium scan. Tr. 312. He noted that plaintiff did not meet the criteria for fever of unknown origin. Tr. 312. Plaintiff also complained of a mood disorder with anxiety and depression which Dr. Ellerbeck noted was improved with Celexa but could be exacerbated by erratic dosages of estrogen from over — the — counter dosing. Tr. 312. He recommended that she resume her transdermal estrogen patch and discontinue the Estrapen. Tr. 312.
On December 8, 1998, in response to questions which plaintiff sent to his nurse, Dr. Filipi advised plaintiff to reduce the dosage of Propulsid from 20 mg four times a day to 10 mg or none. Tr. 275.
OnDecember 16, 1998, plaintiff returned to Dr. McCallumand reported that her overall symptoms had decreased since Dr. Filipi removed her gallbladder, but that she still had bloating and constipation. Tr. 313. Dr. McCallum recommended a Sitz marker study to determine whether plaintiff had a total atonic colon or trouble with the sphincteric function of the rectum, and a small bowel series to determine whether she had Crohn's disease. Tr. 314.
That same day, December 16, 1998, Dr. Filipi wrote to Dr. McCallum to discuss his follow — up with plaintiff. Tr. 276. The letter noted that on that day, plaintiff had reported that her trocar sites were healing well, that she had no evidence of infection or trocar site hernia formation, and that she was swallowing without difficulty and doing well. Tr. 276.
On January 5, 1999, plaintiff called Dr. Ellerbeck to request a statement that she could network at night. Tr. 319. Dr. Ellerbeck recommended that she not work nights but did not have enough evidence to state that she was disabled. Tr. 319. He offered to fill out a form for plaintiff or have her return for a reassessment. Tr. 319.
On January 15, 1999, plaintiff saw Dr. Ellerbeck and reported an increase in her GERD symptoms following a motor vehicle accident the previous Monday. Tr. 320. She reported that she had been taking Clonidine to relieve daily headaches and Dr. Ellerbeck suggested that she take it on a regular basis. Tr. 323.
On January 21, 1999, Dr. Filipi wrote to Dr. Ellerbeck to request permission to perform a repeat endoscopy to evaluate plaintiff's heartburn, epigastric pain, regurgitationand hoarseness, all of which had returned after her recent car accident. Tr. 277.
On February 16, 1999, Dr. Filipi performed a endoscopy which revealed no obvious evidence of esophagitis, an intact fund aplication, no chalasia (with air insufflation), and unremarkable duodenum. The exam revealed severe gastritis and a large amount of bile in the stomach, but the remainder of plaintiff's exam was normal. Tr. 383.
On February 19, 1999, Dr. Filipi wrote a letter "to whom it may concern," stating that plaintiff was off work for esophageal testing on November 2, 1998, that she was admitted to St. Joseph's Hospital on November 3, 1998 and discharged on November 6, 1998, and that she was able to return to work on November 18, 1998. Tr. 278.
On March 3, 1999, plaintiff saw Scott Kempton, M.D., requesting a referral for surgery. Tr. 386.
On March 5, 1999, plaintiff called Dr. Kempton and reported that she was stopping the Wellbutrin after two doses because it made her shaky. Tr. 386.
On March 10, 1999, Dr. Filipi reported to Dr. Kempton that plaintiff had alkaline reflux gastritis and might have GERD, and that she experienced bloating, constipation and a sore throat. Tr. 279. Dr. Filipi noted that a recent endoscopy revealed no evidence of esophagitis but that plaintiff had gastritis and bile in her stomach, and that he advised her to take Propulsid four times a day. Tr. 279. Dr. Filipi also noted that if plaintiff did not improve, a gastric emptying study should be obtained. Tr. 279.
Esophagitis is an inflamation of the esphagus. Dorland's Illustrated Medical Dictionary 643.
On March 15, 1999, plaintiff saw Dr. Kempton to refill her medications. Tr. 387. Lab work that day revealed an abnormal sedimentation rate. Tr. 388.
On March 16, 1999, plaintiff saw Nadeem Sufi, M.D., for her high blood pressure and to request a psychiatric referral. Tr. 391. She denied active complaints other than chronic pain in her left hand, flushing, sweating and occasional swelling of her feet. Tr. 391. Plaintiff stated that emotional problems caused by her significant number of medical conditions and inability to keep one job at a time caused her difficulty at work and that she wanted psychiatric treatment. Tr. 391. Dr. Sufi diagnosed plaintiff with hypertension, migraine headaches and anxiety neurosis, and history of congestive heart failure, anemia, asthma and viral encephalopathy. Tr. 391. He referred plaintiff to Nancy Bounds, a psychologist, and Jan Campbell, M.D., a psychiatrist. Tr. 391.
On March 24, 1999, plaintiff saw Dr. Filipi, who reported that her primary symptom was dyspepsia. Tr. 284. Dr. Filipi noted a small paraesophageal hernia on upright endoscopy, diagnosed duodenal gastric reflux, alkaline reflux gastritis and possible gastroparesis, and advised plaintiff to stop taking Prevacid, reduce Propulsid to 10mg four times a day and start Carafate. Tr. 284.
Dyspepsia in an impairment of the power or function of digestion; usually applied to epigastric discomfort following meals. Dorland's Illustrated Medical Dictionary 576.
On July 7, 1999, plaintiff returned to see Dr. Sufi for a follow — up on her hypertension. Tr. 394. Plaintiff complained of generalized gaseous abdominal pain and distension which occurred off and on with associated fever of 101 to 102, occasional nausea (vomiting one time), diarrhea and pain across her scapula. Tr. 394. Dr. Sufi's assessment was dyspeptic symptoms along with fever, and he put her on Prevacid for a two week trial. Tr. 394.
On July 13, 1999, plaintiff called Dr. Sufi's office, crying, stating that she hurt so bad she could kill herself and rambling on about pseudoobstruction and mast cell disease. Tr. 396. After 20 or 30 minutes, plaintiff stated that she would be okay until tomorrow. Tr. 396. That same day, plaintiff had an abdominal sonogram which was essentially unremarkable although her liver was not well seen. Tr. 397.
Pseudoobstruction is a condition characterized by constipation, colickypain, and vomiting, but without evidence of organic obstruction apparent at laparotomy. Dorland's Illustrated Medical Dictionary 1535.
On July 19, 1999, plaintiff saw Dr. Sufi and relayed her abdominal pain and fever history. Tr. 398. She told him that the Mayo Clinic and KUMC had thoroughly investigated her complaints and told her she had nothing wrong, that she had been diagnosed with right — sided heart failure and was started on Zestril, and that she did not follow up with the cardiologist at KUMC. Tr. 398. Dr. Sufi's impression was that plaintiff most likely had post — cholecystectomy syndrome, probable irritable bowel syndrome with spastic colon, and probable anxiety neurosis. Tr. 398. He noted that plaintiff could be anxious, but that she was on multiple medications which she tried to adjust by herself. Tr. 398. Nevertheless, he noted that she seemed to be in perfect condition at the moment, that he needed to review her medical records (which she agreed to provide), and that if needed, he could order an echocardiogram. Tr. 398.
On August 12, 1999, plaintiff reported to Dr. Filipi that she had controlled her heartburn with Prevacid, that she had back pain related to meals and that she needed to elevate the head of her bed. Tr. 285. Dr. Filipi noted that plaintiff had unremarkable vital signs and a normal physical exam, and that she had recurrent GERD. Tr. 285. Dr. Filipi suggested liver function tests, an upper endoscopy and an open laparotomy for repair of her problem. Tr. 285.
On August 24, 1999, plaintiff saw Dr. Sufi, reporting that her abdominal pain and constipation had improved after she discontinued Doxepin. Tr. 399. Plaintiff told Dr. Sufi that she was concerned about her obesity and her liver, and she wanted a liver function test. Tr. 399. Dr. Sufi noted that plaintiff seemed anxious about a lot of multiple symptoms even though she had had blood tests which found nothing significant. Tr. 399. He advised her that he would order liver function tests if her abdominal symptoms recurred, that she should go to the nearest hospital to have her glucose drawn next time she had symptoms of hypoglycemia and that she should increase her exercise and watch her fat diet to control her obesity. Tr. 399.
On September 14, 1999, plaintiff had her glucose drawn and the lab study showed that plaintiff had high insulin levels in her blood. Tr. 401.
On October 16, 1999, at the requestofthe Disability Determination Service, KamranRiaz, M.D., examined plaintiff. Tr. 419-23. Plaintiff complained of GERD, hypoglycemia, back pain and high blood pressure. Tr. 419. She reported a six — month history of pain in her right shoulder which occurred after she ate, and that Flexeril provided relief. She also reported a nine — year history of lower abdominal pain with constipation for several days. Tr. 419. Dr. Riaz reported that plaintiff's physical exam was essentially normal, and concluded that plaintiff had histories of GERD but that abdominal examination was unremarkable. He found (1) no history of obstruction, fistula formation or gastrointestinal bleeding although plaintiff had some post — operative ileus; (2) high blood pressure with medication management and borderline blood pressure; (3) arthralgia, but a preserved range of motion of the lumbar spine, symmetrical reflexes and no objective evidence of functional impairment; and (4) asthma, but unremarkable clinical examination with no obvious inherent lung disease appreciated. Tr. 421.
On October 25, 1999, plaintiff saw Dr. Sufi to follow up on her abdominal pain. Tr. 476. She reported continued vague lower abdominal pain and continuous flushing. Dr. Sufi assessed that her pain was probably due to a spastic colon. Tr. 476. He noted that plaintiff "is a nurse . . . and she seems to be thinking of a lot of diseases that may not be present in her case, for example, mastocytosis or pheochromocytoma." He therefore "discussed with her in detail that it is very less likely that she has either of those and that her symptoms may be due to a spastic colon." Tr. 476. Nevertheless, Dr. Sufi told plaintiff that he would wait for her urine tests for pheochromocytoma and mastocytosis; if those were negative, he would refer her for possible colonoscopy, endoscopy and CT scan of the abdomen. Tr. 476. Dr. Sufi told plaintiff to continue her current medications and opined that plaintiff might have a psychosomatic disorder. Tr. 476.
Flushing is a transient, episodic redness of the face and neck caused by certain diseases, ingestion of certain drugs or other substances, heat, emotional factors or physical exertion. Dorland's Illustrated Medical Dictionary 715.
Mastocytosis is a group of rare diseases characterized by infiltrates of mast cells in the tissues and sometimes other organs. Dorland's Illustrated Medical Dictionary 1104. Pheochromocytoma is a usually benign, well — encapsulated, lobar, vascular tumor of chromaffin tissue of the adrenal dedulla or sympathetic paraganglia. Hypertension is a cardinal symptom. During severe attacks, an individual may have a headache, sweating palpitation and tremor, pallor or flushing, nausea and vomiting, pain in the chest and abdomen, and parasthesias of the extremities. Id. at 1422.
On November 9, 1999, Dr. Sufi saw plaintiff regarding complaints of right knee pain which she experienced while playing tennis. Tr. 475. Dr. Sufi diagnosed her with a knee sprain and gave her a support to wear when playing tennis. Tr. 475.
On November 30, 1999, plaintiff saw Dr. Sufi reporting symptoms of dyspepsia. Tr. 474. Specifically, plaintiff reported having abdominal pain in the epigastric region along with burning and occasional nausea but no vomiting or diarrhea. She also reported that she suffered some chest injury in a car accident on November 26, 1999 and that she had sharp pain in the middle of her chest but no shortness of breath. Tr. 474. Dr. Sufi referred plaintiff to Dr. A. Sufi for an esophagogastroduod enoscopy. Tr. 474.
Esophagogastroduod enoscopy is an endoscopic examination of the esophagus, stomach and duodenum. Dorland's Illustrated Medical Dictionary 643.
On January 24, 2000, plaintiff returned to see Dr. Filipi, who performed an upper endoscopy with biopsies for recurrent GERD. Tr. 522. His postoperative diagnosis was intrathoracic fund aplication gastritis. Tr. 522. The stomach biopsy showed mixed antral and fundic mucosa with moderately active chronic gastritis and the giemsa stain was negative for Helicobacter pylori. The distal esophagus biopsy showed gastroesophageal junctional mucosa with mild chronic inflammation and was negative for intestinal metaplasia. Tr. 520. On January 27, 2000, to follow up the procedure which Dr. Filipi performed on January 24, plaintiff saw Dr. Sufi. Tr. 472. Dr. Sufi noted that plaintiff denied any active complaints and had been taking her medications without significant problems, but that she continued to have nonspecific multiple complaints such as minor headaches, body aches and pains, loose stools, occasional abdominal distention, joint pains, chills and low grade fever. Tr. 472. He noted that plaintiff's complaints did not fit into one category and that she "seems to be the sort of person who worries a lot about different diseases" because of her training as a nurse. Tr. 472. Dr. Sufi cautioned plaintiff to be careful when selecting her medications and advised that she talk to a doctor or pharmacist before taking any kind of medication. Tr. 472.
On February 9, 2000, Dr. Filipi wrote a progress note which stated that plaintiff's sphincter on manometry was incompetent and that on endoscopy she had a 1 A. 2A failure. Tr. 524. Dr. Filipi planned a surgical procedure after some preliminary testing. Tr. 524.
Manometry is the measurement of pressure generated by the anal sphincter, used in the evaluation of fecal incontinence. Dorland's Illustrated Medical Dictionary 1096.
On February 21, 2000, plaintiff saw Dr. Sufi for multiple complaints,i.e. headaches, fever and abdominal pains. Tr. 471. Plaintiff also wondered whether she had cystic fibrosis. Dr. Sufi suggested that plaintiff see a local neurologist and opined that plaintiff probably did not have cystic fibrosis. Tr. 471.
On March 26, 2000, plaintiff went to the Barton Community Hospital emergency room complaining of right side abdominal pain. Tr. 491. Plaintiff reported a history of kidney stones and hypertension and requested a catheterization. Linda Becker, M.D., the physician on duty, diagnosed plaintiff with pyelonephritis, prescribed medications and instructed plaintiff to see Dr. Sufi the following day. Tr. 491.
Pyelonephritis is inflammation of the kidney and renal pelvis because of bacterial infection which begins in the interstitial tissues and rapidly extends to involve the tubules, glomeruli, and then the renal blood vessels. Dorland's Illustrated Medical Dictionary 1549.
On April 11 and 12, 2000, plaintiff saw Jay Goldstein, M.D. Tr. 525. Dr. Goldstein outlined plaintiff's medical and treatment history, noted that her physical examination was otherwise unremarkable, and diagnosed her with chronic fatigue syndrome, irritable bowel syndrome, migraine and tension type headaches, asthma, allergic rhinitis, GERD with two failed Nissen fund aplications, hypertension and temporomandibular dysfunction, perhaps related to her headaches. Tr. 525-27. Dr. Goldstein gave plaintiff several trial prescriptions and various other prescriptions. Tr. 527.
On June 20, 2000, plaintiff underwent a neurological examination at KUMC. Plaintiff reported that her left side became weak with sustained exertion. Tr. 508. The treating physician's impression was migraine headache. Tr. 511. An MRI and EEG were ordered and plaintiff's dosage of Depakote was increased. Tr. 511.
On June 29, 2000, plaintiff saw ErvinEaker, M.D., of the WestGlen Endoscopy Center, requesting an evaluation for a repeat Nissen fund aplication. Tr. 539. Plaintiff reported that Prevacid, Propulsid and Carafate had significantly improved her symptoms, but that Medicaid had recently restricted her access to these medications and that she therefore had been using over — the — counter medications which caused her heartburn and acid regurgitation to return. Tr. 539. Dr. Eaker noted his impressions as (1) GERD: nonerosive; (2) constipation and abdominal pain, with a diagnosis of irritable bowel syndrome based on her symptoms and a negative colonoscopy; (3) fibromyalgia; (4) chronic migraine headaches; and (5) fatty liver. Tr. 540.
On July 12, 2000, plaintiff went to St. Luke's Shawnee Mission Medical Group regarding a sinus problem and plantar fasciitis. Tr. 496. An x-ray taken that same day showed a small bone spur on her right heal. Tr. 498.
Plantar fasciitis is inflammation of fascia, which is (a sheet or band of fibrous tissue such as lies deep to the skin, Dorland's Illustrated Medical Dictionary 674) of the sole of the feet. Dorland's Illustrated Medical Dictionary 678.
On August 4, 2000, Ivan Osorio, M.D., saw plaintiff for her complaints of left — sided weakness. Tr. 551. Dr. Osorio's impression was minimal left hemispheric dysfunction, non — specific in nature. Tr. 551.
On August 25 and September 18, 2000, at the request of her physician Paula Davis, M.D., plaintiff saw Arlo S. Hermreck, M.D., a vascular surgeon, for her GERD. Tr. 505. Dr. Hermreck reviewed the voluminous records which plaintiff brought and the numerous medications which she was taking. Tr. 505. Dr. Hermreck's examination of plaintiff was unremarkable except for plaintiff's obesity. Tr. 505. He noted that plaintiff had undergone a gastric emptying and that her gastric emptying time was poor. He recommended that she continue taking Prilosec and Tagamet, place the head of her bed on six — inch blocks, avoid eating and drinking at least four hours before bedtime, avoid chocolate and peppermint, never lay down and nap immediately after eating, and attempt to get her weight down. Tr. 505. Dr. Hermreck noted that he would reevaluate plaintiff in three months and that she might require operative treatment in the future, but he recommended more conservative measures at the time. Tr. 505.
Plaintiff saw Dr. Davis several times in late 2000 to discuss her GERD symptoms. Tr. 506-07. On October 27, 2000, Dr. Davis examined plaintiff and adjusted her dosage of Depakote. Tr. 515. That same day plaintiff had a neurological examination which was essentially normal. Tr. 515.
On October 3 and November 20, 2000, plaintiff returned to see Dr. Goldstein for medication adjustments. Tr. 530-33.
On December 22, 2000, plaintiff saw Arthur R. Dick, M.D., in the Neurology Department at KUMC to follow up on her October 27 visit for her migraine headaches. Tr. 546. Dr. Dick noted that her neurological examination was normal and that she had no tenderness of the TMJ area with her mouth open or closed. Tr. 546. He surmised that she possibly had trigeminal neuralgia, but that the pain appeared to be less and possibly resolving, as it had in the past. Tr. 546. Dr. Dick advised plaintiff to begin Tegretol if the pain recurred. Tr. 546.
Trigeminal neuralgia is excruciating episodic pain in the area supplied by the trigeminal nerve, often precipitated by stimulation of well — defined trigger points. Dorland's Illustrated Medical Dictionary 1251.
On January 10, 2001, plaintiff returned to see Dr. Dick and reported that she was taking Darvocet and 200 mg of Tegretol three times a day without relief, and that she had discontinued Depakote. Tr. 545. Dr. Dick advised plaintiff to gradually increase her Tegretol dosage by 100 mg per dose over several days and to not self prescribe extra doses of medications. Tr. 545. On January 24, 2001, plaintiff saw Dr. Dick and reported that she had discontinued Tegretol because it caused blurred vision and that she had started back on Depakote due to recurrence of headaches. Tr. 544.
On January 24, 2001, Dr. Davis performed a physical capacities evaluation in which she found plaintiff incapable of sustaining an eight — hour work day five days a week because plaintiff took medications which limited her focus and concentration and experienced facial pain and chronic migraines, chronic sinusitis and residual symptoms of GERD following failed surgery. Tr. 536-38.
On February 1, 2001, Dr. Davis wrote a letter "to whom it may concern," stating that she had been treating plaintirf for the past year, had reviewed her medical records and had conducted her own examinations. Tr. 535. In her opinion, plaintiff's significant medical problems precluded her from working as a nurse or in any other occupation. Tr. 535. Specifically, Dr. Davis noted that plaintiff had significant fatigue, intermittent fevers and constitutional symptoms which were diagnostic of chronic fatigue syndrome, and other contributing medical problems such as hypertension, hyperlipidemia, migraine complicated by right — sided neurological impairment and severe allergy with prior sinus surgery and ongoing asthma. Tr. 535.
On February 24, 2001, Dr. Davis treated plaintiff for facial pealing. Tr. 555.
On March 22, 2001, plaintiff saw Dr. Davis for medication management. Tr. 554.
On May 11, 2001, plaintiff saw Jane Murray, M.D., at KUMC. Tr. 579. Plaintiff reported flushing symptoms, intermittent fevers and plantar fasciitis. Dr. Murray did not perform an exam, but provided a consult and assessed plaintiff with multisymptom dysfunction with resultant chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome and migraines. Tr. 579. Dr. Murray recommended that plaintiff consider non — traditional treatments such as acupuncture, use of herbs, yoga and meditation. Tr. 579.
B. Plantar Fasciitis
From August 14 to September 14, 2000, plaintiff participated in outpatient rehabilitation to treat her plantar fasciitis. Tr. 501. Plaintiff's strength improved, but she reported no change in her symptoms of pain when walking. Tr. 501.
On September 27, 2000, plaintiff went to the Truman Medical Center Orthopaedic Clinic for a follow up examination with Michael Harris, M.D., for bilateral plantar fasciitis. Tr. 553. Dr. Harris examined her feet and found that she was neurovascularly intact and had pain to palpation under her heels bilaterally. Tr. 553. He prescribed an anti — inflammatory and advised her to be fitted with a night splint for her right foot, but listed no work restrictions. Tr. 553.
C. Depression
Between August 13, 1998 and April 20, 1999, plaintiff saw N. Bonner, LSCSW, for counseling on eight occasions. Tr. 462-69.
On April 8, 1999, plaintiff saw Dr. Campbell. Tr. 461. Dr. Campbell noted that plaintiff tried Neutrontin but did not tolerate the sedation. Dr. Campbell diagnosed plaintiff with Major Depressive Disorder and ordered a trial dose of Doxepin. Tr. 461. On April 20, 1999, plaintiff saw Dr. Campbell again and reported that the Doxepin helped her sleep better and that she was more relaxed during the day, but that she had some morning sedation and wanted to reduce her dosage. Tr. 460.
On September 28, 1999, Dr. Campbell assessed plaintiff with disturbed mood, sleep, energy and activity, and good appetite and thought. Tr. 459. She noted that plaintiff had symptoms of anxiety, anhedonia, nightmares, dysphoric moods, prominent insomnia and severe headaches, and that the Doxepin was relatively successful in managing plaintiff's insomnia and anxiety but caused profound constipation which made plaintiff's gastrointestinal disorder worse. Tr. 458. Dr. Campbell opined that plaintiff's mental status was consistent with major depression and stated that it was "quite difficult to imagine that [plaintiff] would be able to function in any employment capacity considering the extent of her medical complications and the difficulty in trying to control her psychiatric disorder with some multiple drug interactions. . . . At this point, I would describe her as unable to maintain a reasonable level of physical activities with poor concentration and consequent poor memory, inability to maintain a consistent level of performance and complications from her numerous medical appointments and periods of time when she is incapable of performing at an adequate level." Tr. 458.
Anhedonia is total loss of feeling of pleasure in acts that normally give pleasure. Dorland's Illustrated Medical Dictionary 90.
On October 26, 1999, David R. Mouille, Ph.D., evaluated plaintiff at the request of the Disability Determination Services. Tr. 424-30. Dr. Mouille performed a mental status examination, conducted an interview with plaintiff, reviewed her records and administered the Wechsler Adult Intelligence Scale — Third Edition and the Wechsler Memory Scale — Third Edition. Tr. 424. Plaintiff had a diagnosis of depression which was treated with Doxepin, she complained of migraines and gastrointestinal problems, and she reported symptoms typical of a person with depression (i.e. she cried easily; was sad, irritable, restless and withdrawn; had lost interest in life; had reduced attention, concentration, memory and appetite; and experienced disturbed sleep). Tr. 424. Dr. Mouille concluded that:
1. [Plaintiff's] ability to perform her activities of daily living is reduced but not impaired as a consequence of psychopathology.
2. [Plaintiff's] ability to establish and maintain adequate relationships with co-workers and supervisors is reduced but not impaired as a consequence of psychopathology.
3. [Plaintiff's] ability to understand and perform simple tasks in an average amount of time is reduced but not impaired as a consequence of psychopathology.
4. [Plaintiff's] ability to concentrate, at a persistent pace is reduced but not impaired as a consequence of psychopathology.
5. [Plaintiff's] ability to maintain an adequate work schedule with average performance demands is reduced but not impaired as a consequence of psychopathology. [Plaintiff] is able to manage her own funds.
Tr. 426-27. Dr. Mouille's suggested diagnoses were depression — NOS and dementia (mild) secondary to encephalitis. Tr. 425.
Plaintiff's scores on the Wechsler Adult Intelligence Scale — Third Edition revealed that she had a verbal 10 of 115 (high average), a performance 10 of 86 (low average) and a full scale 10 of 102 (average). Tr. 429. Dr. Mouille explained that the significant deviations in her scores indicated the presence of damage in the right hemisphere of her brain, which was consistent with her history of encephalitis in 1977. Tr. 429. Her scores on the Wechsler Memory Scale — Third Edition indicated that no significant deviation existed on the memory scale, which was consistent with the other aspects of plaintiff's interview and showed no severe impairments. Tr. 429.
On December 8, 1999, George W. Stern, Ph.D., completed a psychiatric review of plaintiff. Tr. 433-42. Dr. Stern noted that plaintiff suffered from an affective disorder as evidenced by anhedonia or pervasive loss of interest in almost all activities, appetite disturbance with change in weight, sleep disturbance, and difficulty concentrating or thinking. Dr. Stern noted that although plaintiff described symptoms which were consistent with depression, she did a full range of activities of daily living, lived by herself and required no assistance. Tr. 436 and 442. He stated that although Dr. Campbell had indicated that plaintiff's poor concentration and memory made her unable to maintain a reasonable level of physical activity, her poor concentration and memory were not substantiated by the memory test which Dr. Mouille had administered. He also stated that plaintiff's depression might make it difficult for her to interact with the general public, but that it would not preclude all types of employment. Tr. 442 and 448.
II. Testimony And Daily Activities
A Plaintiff
Plaintiff testified that she had two laparoscopic surgeries for GERD, that she continued to have reflux and that she took medications to control the symptoms. Tr. 37-39. Plaintiff also testified that she has irritable bowel syndrome with symptoms of bloating and bowel obstruction which occur several times a month and cause severe abdominal pain. Tr. 39-40. Plaintiff uses a heating pad and lies down to get through the incident, and after she passes the obstruction she experiences diarrhea for several hours. Tr. 41. Plaintiff testified that on occasion she is unable to make it to a bathroom and soils herself. Tr. 43. In association with her irritable bowel, she has diarrhea and abdominal discomfort every day and she typically uses the bathroom three to four times an hour. Tr. 44-45.
Plaintiff testified that she experiences fatigue every day and that the fatigue causes her to nap for a few hours each afternoon. Tr. 45. She does not sleep well at night and although she takes medication to help her sleep, she rarely wakes feeling refreshed. Tr. 46.
Plaintiff testified that she has headaches several times a week which may be caused by sinus problems, allergies or stress, and that her doctors have advised her that she has migraines. Tr. 46. Plaintiff took Clonidine and Depakote, which helped, but she experienced headaches a couple times a week even with the medications. Tr. 47. If she takes the Clonidine right away she can continue her day. If she does not, or if the headache gets worse, it lasts several hours and she has to sleep it off. Tr. 48-49. Plaintiff also testified that the Clonidine and Depakote cause slower bowels, swelling and obstructive symptoms. Tr. 49.
Plaintiff testified that she has problems with irritability and mood swings, that she is not currently receiving treatment for depression, that she tried every anti — depressant but the medications aggravate her other conditions. Tr. 50-51. Plaintiff testified that she has good days and bad days, that she has more difficulty with concentration and memory when she is fatigued, and that she experiences fatigue which interferes with her concentration and memory several times a week. Tr. 51-52. Plaintiff testified that she could have several bad days in a row, depending on her bowel problems and headaches. She did not like lying down all day so she tried to do what she could before lying down again. Tr. 55.
Plaintiff testified that the day before the hearing was a pretty typical day for her. She awoke with a headache between 6:00 and 7:00 a.m., prepared breakfast for her husband, took Depakote and Clonidine and lay down on the sofa. Tr. 52-53. Although she did not feel better, she got up and did a load of laundry. Tr. 53. Plaintiff laid back down and rested off and on until about noon, and then she got ready to meet with her attorney. Tr. 53-54. She returned home after the meeting and took a nap. Around 5:00 p.m. she and her husband took a prepared pizza to a friend and then returned home, watched television and went to bed around 10:30 p.m. Tr. 54.
Plaintiff testified that she went to church when she felt okay and she went to the library once every two weeks. Tr. 56. She also enjoyed writing articles on the computer and had completed and submitted two or three for publication in magazines. Tr. 56-57.
Plaintiff completed two Activities of Daily Living questionnaires — in April and September of 1999. Tr. 204-09 and 230-36. On both forms, plaintiff reported that her poor energy level made it difficult for her to care forpersonal needs such as bathing, grooming, dressing, etc. Tr. 204 and 230. She nevertheless reported that she bathed and washed her hair daily and changed her clothes and brushed her teeth twice a day; cooked simple meals every evening; helped care for two teenagers on weekends; did two or three loads of laundry each week; and spent one or two hours each week cleaning. Tr. 204-05 and 230-31. In addition, plaintiff handles her own money and pays her own bills, shops for groceries without assistance and uses coupons and lists, shops for other household items without assistance, and can drive and use public transportation. Tr. 206 and 232. Plaintiff also watches television, listens to the radio, reads, and engages in hobbies such as cooking for others, reading and playing the piano. Tr. 207 and 233. She reported spending two or three hours away from home each week at the library or movies or taking walks. Tr. 207 and 233. In April she also reported that she occasionally attended church or social events. Tr. 207.
In September of 1999, because plaintiff's car was broken and she had to walk to the store, she went every two or three days and bought only small quantities which she could carry. Tr. 232.
Plaintiff also completed a fatigue questionnaire in which she described her fatigue as feeling "like beating a dead horse. It feels like I weigh 300 pounds. A helpless feeling." Tr. 218. She reported that she felt fatigued almost daily and that exertion, infections, reactions to medications, trauma and severe emotional distress brought on the fatigue. Tr. 218. She also reported she had experienced fatigue which limited her activities for at least 20 years but that it has gotten worse in the past few years, and that rest relieved the fatigue. Tr. 218.
B. Testimony Of Vocational Expert Amy Salva
On January 23, 2001, vocational expert Amy Salva testified at the request of the ALJ. Tr. 58-63. Salva read the written evidence of record, heard plaintiff's testimony and testified that if plaintiff's impairments were as she had described them in her testimony, she could not return to her past work as a nurse. Tr. 59. Salva testified that if plaintiff's impairments only restricted her from lifting and carrying more than ten pounds and required her to work in a controlled environment to reduce breathing difficulties, plaintiff could perform sedentary and unskilled work such as surveillance systems monitor, information clerk or telephone solicitor. Tr. 60-61. She also testified that if plaintiff's depression prevented her from maintaining adequate concentration, remembering and following job instructions and interacting appropriately with co-workers or supervisors, she would not be able to maintain any employment. Tr. 61-62. Finally, Salva testified that an individual who had to miss two or three days (or more) a month because of health problems, and who had to lie down and nap for two hours each afternoon could not maintain any employment. Tr. 61-62. Salva testified that certain offices accommodate employees who have to use the restroom frequently. Tr. 62.
C. Testimony Of Medical Expert Lynn I. DeMarco, M.D.
On April 5, 2001, Lynn I. DeMarco, M.D., testified at plaintiff's supplemental hearing at the request of the ALJ. Tr. 68-91. Dr. DeMarco testified that he was an allergist and an immunologist, but that he also did rheumatology at Truman Medical Center. Tr. 69.
Based on his review of the written evidence, Dr. DeMarco. testified that plaintiff suffered from gastro — esophageal reflux, hypertension without evidence of end organ damage, a history of bronchial asthma which was not severe, a history of migraine headaches and irritable bowel syndrome. Tr. 69-70. He explained that irritable bowel syndrome is a motility disorder of the bowel that can result in episodic abdominal pain, constipation or diarrhea which is poorly understood in the medical community. Tr. 70. Dr. DeMarco. did not consider plaintiff's irritable bowel syndrome severe, Tr. 70, but he agreed that plaintiff's gastric emptying time of 25 percent in one hour was `Very poor." Tr. 86.
The record reflected that plaintiff had a diagnosis of major depression, but Dr. DeMarco. testified that the medical opinion revealed a discrepancy regarding the severity of plaintiff's depression. Tr. 71. Specifically, although Dr. Mouille had diagnosed depression and found mild dementia, Dr. DeMarco. did not accept Dr. Mouille's diagnosis because plaintiff's IQ test indicated no dementia and no other record evidence existed. Tr. 71 and 83.
Furthermore, while the record also reflected a diagnosis of fibromyalgia which dated back to 1993 and chronic fatigue syndrome which dated back to 1977, Tr. 71-72, Dr. DeMarco. testified that these diagnoses were not well substantiated in the record. Tr. 71-72. Dr. DeMarco testified that although Dr. Goldstein had diagnosed plaintiff with chronic fatigue syndrome, the record indicated that he arrived at the diagnosis historically and did not address the definite criteria. Dr. DeMarco. testified that based on the record, plaintiff did not meet the criteria. Tr. 90. Further, Dr. DeMarco. testified that although Dr. Davis wrote that plaintiff had significant fatigue, intermittent fevers and constitution symptoms which were diagnostic of chronic fatigue syndrome, the letter was conclusory and she provided no documentation. Tr. 90.
Dr. DeMarco. testified that the criteria for chronic fatigue syndrome include (1) such severe incapacitating fatigue that a person can only do 50 percent of the pre-morbid activity; (2) rule out other causes of fatigue; (3) physical criteria including examination of throat, non — exhibited pharyngitis, lymph nodes and fever; and (4) the situation continues for more than six months. Tr. 91.
Although plaintiff suffered encephalitis in 1977, Dr. DeMarco. saw no evidence of residual damage. Tr. 72. The record also revealed that plaintiff had been diagnosed with plantar fasciitis, which is a soft tissue inflammation of the soles of the feet, Tr. 74, but Dr. DeMarco believed that this condition would resolve with proper exercise, shoe supports and heel cups. Tr. 74.
Dr. DeMarco. agreed that a treating physician would be in a better position to determine a patient's functional capacities and abilities, Tr. 76, but testified that the written record did not support a finding that plaintiff met or equaled any listed impairment. Tr. 73. Further, he did not believe that plaintiff's conditions significantly restricted her ability to function in the workplace. Tr. 74. Specifically, he testified that her plantar fasciitis would resolve and her gastro — esophageal reflux had improved and could be controlled with medications. Tr. 75-76.
D. Testimony Of Vocational Expert Terry L. Cordray
On April 5, 2001, vocational expert Terry L. Cordray testified at the request of the ALJ. Tr. 93-101. Cordray reviewed the written evidence. The ALJ asked Cordray which jobs an individual could perform if she had a history of gastro — esophageal reflux disease, hypertension treated by medication, bronchial asthma treated by medication and considered not severe, a history of migraine headaches and irritable bowel syndrome, and other conditions described as fibromylangia, chronic fatigue syndrome, plantar fasciitis and major depression — if she was capable of carrying up to 20 pounds occasionally, ten pounds frequently, and she was restricted to relatively simple, non — complex work and would not have to do work which required things to be done in a quick period of time. Tr. 95-96. Cordray testified that such a person could work as a cleaner/housekeeper, telephone salesperson, security monitor, cashier or production inspector. Tr. 96-97.
Cordray testified that mental problems from depression or dementia which cause an individual to have difficulty remembering, following job instructions or interacting appropriately, or maintaining adequate concentration and persistence and pace would preclude competitive work activity. Tr. 97. In addition, he testified that a person who missed work two or three days a month could not work because of excessive absenteeism. Tr. 97. Further, a person who had to lie down and rest during the work day could not compete for employment. Tr. 98.
III. ALJ Findings
In his order of April 25, 2001, the ALJ made the following findings:
1. Claimant met the special earnings requirements of the Act on November 26, 1998, the date she stated she became unable to work, and continues to meet them through the date of this decision.
2. Claimant has not engaged in substantial gainful activity since November 26, 1998.
3 The medical evidence establishes that claimant has the following severe impairments: gastroesophageal reflux disease, status post surgical repair with Nissen fund aplication, now treated and controlled with medication; history of bronchial asthma, treated with medication; history of migraine headaches; irritable bowel syndrome; hypertension, without evidence of end organ damage, and treated with medication; depression, NOS; bilateral plantar fasciitis, right greater than left, diagnosed in January 2001; and allegations of chronic fatigue syndrome, fibromyalgia and dementia, not substantiated or supported by the totality of the evidence of record. Nonetheless, claimant does not have impairments, considered singularly or in combination, which meet or equal any criteria contained in the Listing of Impairments, Appendix 1, Subpart P, Regulations No. 4.
4. Claimant's testimony, withrespect to the severityofher overall medical condition and alleged need to lie down on a daily basis, is found to be only partially credible, and not disabling so as to prevent her from performing substantial gainful activity.
5. Claimant has the residual functional capacity to perform the exertional and non — exertional requirements of either sedentary or light work activity with the restrictions set forth hypothetically to the vocational experts at both hearings.
6. Claimant is unable to perform her past relevant work for the reasons set forth in this decision.
7. Claimant's vocationally — acquired skills from her past relevant work as a registered nurse, are not readily transferable to lesser exertional endeavors.
8. Claimant was born on May 15, 1953 and was 45 years of age at her alleged onset date of disability. She is currently 47 years old, and under the regulations, is classified as a "younger" individual.
9. Claimant has a "high school" education plus a Bachelor of Science degree in nursing.
10. Based on an exertional capacity for either sedentary or light sit/stand option work activity, and claimant's age, education and past relevant work experience, Rules 201.21 and 202.21 of Table Nos. 1 and 2, Appendix 2, Subpart P, Regulations No. 4 direct a conclusion of "not disabled."
11. Although claimant has some non — exertional limitations, using the above — cited rules as a framework for decisionmaking, there are a significant number of jobs in the local and national economies which he [sic] could perform, the numbers and identities of which were specifically set forth by the vocational expert at the hearing.
12. Claimant has not been under a "disability," as defined in the Social Security Act, as amended, at any time through the date of this decision.
Tr. 27-29.
Standard Of Review
The ALJ's decision is binding on the Court if supported by substantial evidence. See 42 U.S.C. § 405(g); Dixonv. 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. See 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 Social Security Act. See Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). The Social Security Act 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. § 423(d)(1)(A). 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 her past relevant work; and (5) whether the impairment prevents the claimant from doing any kind of work. See 20 C.F.R. § 404.1520, 416.920. If a claimant satisfies steps one, two and three, she will automatically be found disabled; if a claimant satisfies steps one and two, but not three, she 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 three, finding that plaintiff does not suffer impairments, considered singularly or in combination, which meet or equal any criteria contained in the Listing of Impairments in Appendix 1. Tr. 23. In reaching his conclusion, the ALJ found that plaintiff's daily activities were inconsistent with her claim of a debilitating medical condition, rejected the opinion of Dr. Davis that plaintiff could not work full time, and found that plaintiff's testimony with respect to the severity of her physical impairments and alleged need to lie down on a daily basis was only partially credible.
The ALJ next found, under step four, that plaintiff could not perform her past relevant work as a registered nurse. At step five, however, the ALJ denied benefits because he found that plaintiff could perform work in the national economy. In the step five analysis, the ALJ must determine whether — in view of her age, education and work experience — plaintiff has the residual capacity to perform other work in the national economy. Bowen v. Yuckert, 482 U.S. 137, 148(1987). The ALJ bears the burden of proof at step five. See id at 146 n. 5. To meet this burden, the ALJ must find that plaintiff can perform work "in the claimant's residual functional capacity category." Talbot v. Heckler, 814 F.2d 1456, 1462 (10th Cir. 1987).
As noted above, plaintiff's medical record establishes that 14 different physicians saw her on over 50 occasions, that she has been hospitalized for surgery on four occasions and undergone multiple tests and medical procedures. Further, plaintiff's treating physician and former treating psychiatrist support her application for disability benefits. Despite this evidence, the ALJ found plaintiff capable of performing entry level sedentary or light sit/stand work which requires only simple, repetitive tasks, in a climate controlled environment.
Plaintiff challenges the ALJ's decision, arguing that the ALJ (1) did not give appropriate weight to the opinions of plaintiff's treating physicians; (2) failed to explain his finding that plaintiff's condition did not meet or equal a listed impairment; (3) erred in finding that plaintiff's claims were not credible and in establishing a residual functional capacity which conflicted with her testimony and the medical evidence; and (4) erred in relying on the vocational expert's testimony that plaintiff could perform other substantial gainful activity.Plaintiff's Brief In Support Of Reversing The Administrative Decision Of Defendant (Doc. #6) filed September 26, 2003, at 42-43.
I. Opinion Of Treating Sources
The ALJ requested the testimony of Dr. DeMarco, a board — certified internist, to evaluate plaintiff's impairments. The ALJ relied heavily on Dr. DeMarco's testimony and specifically noted that Dr. DeMarco. had reviewed the entire record. As a result of his review, Dr. DeMarco. testified regarding the mental status examination which Dr. Mouille had performed in October of 1999, the diagnoses of fibromyalgia and chronic fatigue syndome, plaintiff's gastric emptying time, and Dr. Baker's report of June 2000 regarding plaintiff's GERD. Dr. DeMarco. concluded that plaintiff's impairments, singularly and in combination, did not meet or equal any of the criteria in the Listing of Impairments. Tr. 26.
According to the ALJ,
Dr. DeMarco. . . . testified that claimant had had a mental status examination by David R. Mouille, Ph.D. in October 1999 . . . wherein diagnoses of depression, NOS, and mild dementia secondary to encephalitis, had been made. Overall, and after looking at claimant's I.Q. test scores and the Global Assessment of Functioning (GAP) score of 70 given at that time to claimant, Dr. DeMarco. noted that there was no basis for the diagnosis of dementia. Herein, Dr. DeMarco indicated that claimant did have a viral encephalopathy some 25 years ago. Although he noted that this condition could cause devastating symptoms, he indicated that there was no evidence in the record that claimant was demented or confused as a result thereof. Additionally, Dr. DeMarco. testified that claimant had had an extensive neurological evaluation by a qualified neurologist, who had made no mention of any signs of dementia on the part of claimant in his report.
Tr. 24.
As to fibromyalgia and chronic fatigue syndrome, the ALJ noted Dr. DeMarco's testimony as follows:
Dr. DeMarco. . . . testified that although fibromyalgia and chronic fatigue syndrome had been mentioned in treatment notes for claimant . . . these conditions were not substantiated or supported diagnoses, according to the evidence of record. When asked by counsel to comment on the February 2001 report by Paula Davis, M.D. . . ., with respect to claimant's significant fatigue and intermittent fevers, and give his opinion as to whether these symptoms were associated with chronic fatigue syndrome, Dr. DeMarco. indicated that this comment by Dr. Davis was conclusory, and a diagnosis of chronic fatigue syndrome was not substantiated in the record for claimant. Herein, Dr. DeMarco. testified that definite criteria had to be met for a diagnosis of this condition.
According to Dr. DeMarco, a person had to have debilitating fatigue wherein he or she could perform only 50 percent of pre-morbid activity. Secondly, all other causes for an individual's debilitating fatigue had to be ruled out. He further noted that there had to be physical examination finds to determine the cause of patient's fevers, and the condition would have to persist greater than six months. Overall, Dr. DeMarco. indicated that none of the criteria was met in claimant's case, according to the evidence of record, for a diagnosis of chronic fatigue syndrome.
Tr. 24.
The ALJ noted that when asked to comment on the examination by Dr. Hermreck in September of 2000, Dr. DeMarco
noted that claimant had a gastric emptying time of 25 percent at one hour, which was `Very poor." . . . Herein, Dr. DeMarco. testified that although this was a very poor reading, Dr. Hermreck had not commented further on this in his report. Additionally, Dr. DeMarco. indicated that when claimant was evaluated for this condition in June 2000 by Ervin Y. Eaker, M.D., no such finding was made at that time.
Tr. 24.
The ALJ noted that
[w]hen asked to comment on claimant's gastroesophageal reflux condition, according to Dr. Eaker's June 2000 report, Dr. DeMarco. noted that claimant was symptomatic at that time, but that she had stopped taking her medication because she could not afford them. Those records, according to Dr. DeMarco, indicated that claimant's medication (Prevacid, Propulsid and Carafate) had helped claimant's symptomatology.
Tr. 25.
Plaintiff argues that the ALJ should have given controlling weight to the opinions of her treating physicians — Drs. Davis and Campbell.
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 reports of other physicians to see if they outweigh the reports of the treating physician. See id. 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 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. Id at 290 (citing 20 C.F.R. § 404.1527(d)(2)-(6)). The ALJ must give specific, legitimate reasons for disregarding the treating physician's opinion that a claimant is disabled. See Goatcher, 52 F.3d at 290.
A. Dr. Davis
Some time in 2000, more than a year after plaintiff's alleged disability onset date in November of 1998, plaintiff began seeing Dr. Davis. Plaintiff saw Dr. Davis several times in late 2000 to discuss her GERD symptoms. On January 24, 2001, Dr. Davis performed a physical capacity evaluation in which she found that plaintiff could not sustain an eight — hour work day five days a week because she took medications which limited her focus and concentration and experienced facial pain, chronic migraines, chronic sinusitis and residual symptoms of GERD following failed surgery. Dr. Davis also saw plaintiff on February 24, 2001 for facial peeling and on March 22, 2001 for medication management.
On February 1, 2001, more than two years after plaintiff's alleged disability onset date, Dr. Davis wrote a letter "to whom it may concern" which stated that she had been treating plaintiff for the past year, and had reviewed plaintiff's medical records and conducted her own examinations. In Dr. Davis' opinion, plaintiff had significant medical problems which precluded her from working as a nurse or in any other occupation. Specifically, Dr. Davis noted that plaintiff had (1) significant fatigue, (2) intermittent fevers, (3) constitutional symptoms which were diagnostic of chronic fatigue syndrome, and (4) other contributing medical problems such as hypertension, hyperlipidemia, migraine headaches, severe allergy and ongoing asthma.
In evaluating this evidence, the ALJ noted:
Although the uncontradicted opinion of a treating physician is entitled to substantial weight, that tenet is not without some limitations. In weighing opinion evidence, the degree to which the opinion is supported by medical signs and findings is also considered ( 20 C.F.R. § 404.1527(d)(3) and 416.927(d)(3)). Additionally, case law holds that a treating doctor's opinion is entitled to particular deference, but that it is not controlling. In Piepgras v. Chater. 76 F.3d 233 (8th Cir. 1996), the 8th Circuit held that a treating medical doctor's opinion deserved no greater respect than any other medical doctor's opinion when the opinion consists of nothing more than conclusory statements. Furthermore, a treating medical doctor's opinion can be discounted by medical expert testimony.
Tr. 25. The ALJ discounted Dr. Davis' opinion because he found that it was (1) conclusory; (2) not supported; and (3) contradicted by the medical evidence and Dr. DeMarco's testimony, which he found to be reasonable and unimpeached. Tr. 25.
In considering what weight to afford Dr. Davis' opinion, the ALJ emphasized the degree to which her opinion was supported by relevant evidence, the inconsistency between her opinion and the record as a whole, and other factors which tended to contradict her opinion. As noted, the ALJ relied on plaintiff's testimony and that of the medical expert, Dr. DeMarco, who emphasized that with respect to claimant's significant fatigue and intermittent fevers, Dr. Davis' report of February 1, 2001 was conclusory in that it provided no documentation. Dr. DeMarco. also found that a diagnosis of chronic fatigue syndrome was not substantiated in the record because "definite criteria had to be met for a diagnosis of this condition." Tr. 24. Based on this testimony, and other record evidence, the ALJ determined that the record did not support a diagnosis of chronic fatigue syndrome and that plaintiff did not suffer from "a condition or conditions of disabling severity so as to prevent her fromperforming sedentary or light sit/stand option work activity pursuant to the regulations."
The ALJ noted that according to Dr. DeMarco, the definite criteria for a diagnosis of chronic fatigue syndrome included:
[First] a person had to have debilitating fatigue wherein he or she could perform only 50 percent of pre-morbid activity. Secondly, all other causes for an individual's debilitating fatigue had to be ruled out. He further noted that there had to be physical examination findings to determine the cause of the patient's fevers, and the condition would have to persist greater than six months. Overall, Dr. DeMarco. indicated that none of the criteria was met in claimant's case, according to the evidence of record, for a diagnosis of chronic fatigue syndrome.
Tr. 24.
Plaintiff argues that based on Social Security Ruling ("SSR") 99-2p, 1999 WL 271569 (S.S.A.), the ALJ should have found that she has chronic fatigue syndrome. That Ruling describes the Center for Disease Control ("CDC") definition of chronic fatigue syndrome as follows:
a systemic disorder consisting of a complex of symptoms that may vary in incidence, duration, and severity. It is characterized in part by prolonged fatigue that lasts 6 months or more and that results in substantial reduction in previous levels of occupational, educational, social, or personal activities.
SSR 99-2p, 1999 WL 271569, at * 1. The current CDC definition requires the concurrence of four or more of the following symptoms, all of which must have persisted or recurred during six or more consecutive months of illness and must not have pre-dated the fatigue:
Self — reported impairment in short — term memory or concentration severe enough to cause substantial reduction in previous levels of occupational, educational, social, or personal activities; Sore throat; Tender cervical or axillary lymph nodes; Muscle pain; Multi — joint pain without joint swelling or redness; Headaches of a new type, pattern, or severity; Unrefreshing sleep; and Postexertional malaise lasting more than 24 hours.
Within these parameters, an individual with chronic fatigue syndrome can also exhibit a wide range of other manifestations, such as muscle weakness, swollen underarm (axillary) glands, sleep disturbances, visual difficulties (trouble focusing or severe photosensitivity), orthostatic intolerance (e.g., lightheadedness or increased fatigue with prolonged standing), other neurocognitive problems (e.g., difficulty comprehending and processing information), fainting, dizziness, and mental problems (e.g., depression, irritability, anxiety).
Social Security Ruling 99-2p also addresses the requirement that evidence of an impairment must include objective clinical or laboratory manifestations. See Sections 223(d)(3) and 1613(a)(3)(D) of the Social Security Act, 42 U.S.C. § 401 et seq.; 20 C.F.R. § 404.1508, 416.908. For purposes of Social Security disability evaluation, one or more of the following medical signs clinically documented over a period of at least six consecutive months establishes the existence of a medically determinable impairment for individuals with chronic fatigue syndrome:
Palpably swollen or tender lymph nodes on physical examination; Nonexudative pharyngitis; Persistent, reproducible muscle tenderness on repeated examinations, including the presence of positive tender points; or, Any other medical signs that are consistent with medically accepted clinical practice and are consistent with the other evidence in the case record.
SSR 99-2p, 1999 WL 271569, at *2.(footnote omitted). The Ruling recognizes that at this time, no laboratory findings are accepted as confirmatory of chronic fatigue syndrome. The following findings are sufficient, although not required, to establish a medically determinable impairment of chronic fatigue syndrome under the Act:
An elevated antibody titer to Epstein-Barr virus (EBV) capsid antigen equal to or greater than 1:5120, or early antigen equal to or greater than 1:640; An abnormal magnetic resonance imaging (MRI) brain scan; Neurally mediated hypotension as shown by tilt table testing or another clinically accepted form of testing; or, Any other laboratory findings that are consistent with medically accepted clinical practice and are consistent with the other evidence in the case record; for example, an abnormal exercise stress test or abnormal sleep studies, appropriately evaluated and consistent with the other evidence in the case record.Id 1999 WL 271569, at *2.
Although the ALJ did not specifically refer to SSR 99-2p, he rejected a diagnosis of chronic fatigue syndrome based on Dr. DeMarco's definition, the medical evidence of record and plaintiff's testimony with respect to the severity of her physical impairments. His findings are supported by substantial evidence, and plaintiff has not established that SSR 99-2p would have required him to conclude that plaintiff has chronic fatigue syndrome. Plaintiff argues that certain "signs" of chronic fatigue syndrome exist in the record, i.e. multiple complaints of migraine headaches and a sore throat or hoarseness, a review of the record, however, does not reveal prolonged fatigue which lasted six months or more and resulted in substantial reduction in previous levels of occupational, educational, social or personal activities, four or more of the symptoms contained in the CDC definition, or medical signs clinically documented over a period of at least six consecutive months.
The ALJ did not err in discounting Dr. Davis' opinion. He gave specific, legitimate reasons for affording her opinion little weight. As noted above, the ALJ specifically noted that plaintiff's daily activities, as evidenced by her questionnaires and testimony, were inconsistent with the limitations which Dr. Davis identified, and that the record as a whole did not support her opinions.
B. Dr. Campbell
The ALJ also found that plaintiff did not have a mental impairment which would prevent her from performing substantial gainful activity. Tr. 26. In this regard, plaintiff argues that the ALJ improperly discounted the opinion of her former treating psychiatrist, Dr. Campbell.
In her report of September 28, 1999, Dr. Campbell opined that plaintiff's mental status was consistent with major depression and that it was "quite difficult to imagine that [plaintiff] would be able to function in any employment capacity considering the extent of her medical complications and the difficulty in trying to control her psychiatric disorder with some multiple drug interactions." Dr. Campbell described plaintiff as "unable to maintain a reasonable level of physical activities with poor concentration and consequent poor memory, inability to maintain a consistent level of performance and complications from her numerous medical appointments and periods of time when she is incapable of performing at an adequate level." The ALJ discounted Dr. Campbell's opinion because he found that it was (1) conclusory, and (2) not supported by the objective medical evidence, "particularly when looking at the I.Q. test scores, and the evaluation by Dr. Mouille." Tr. 26. The ALJ also found that plaintiff's testimony with regard to the severity of her mental impairments was only partially credible.
In considering what weight to afford Dr. Campbell's opinion, the ALJ emphasized the degree to which her opinion was not supported by relevant evidence, the inconsistency between her opinion and the record as a whole and other facts which tended to contradict her opinion. Specifically, the ALJ considered plaintiff's IQ test scores, the evaluation by Dr. Mouille, and plaintiff's testimony and daily activity questionnaires. The ALJ noted that Dr. Mouille reported that although plaintiff had symptoms which were consistent with depression, she was able to perform a variety of activities of daily living, write articles on various subjects and submit them for publication and compose and type a letter to a physician in October of 1999. The ALJ also noted that according to her IQ test, plaintiff's cognitive functioning did not appear to be significantly impaired and her scores were well within the range to permit many types of employment. Tr. 26.
The ALJ gave specific, legitimate reasons for discounting Dr. Campbell's opinion, and he did not err in doing so.
II. Listed Impairment
As noted above, after the ALJ found that plaintiff has severe impairments, he proceeded to step three and found that plaintiff does not suffer impairments, singularly or in combination, which meet or equal any criteria contained in the Listing of Impairments in Appendix 1. Tr. 23. In reaching his conclusion, the ALJ (1) found that plaintiff's daily activities were inconsistent with her claim of a debilitating medical condition; (2) rejected Dr. Davis' opinion that plaintiff could not work full time because of her condition; and (3) found that plaintiff's testimony with respect to the severity of her physical impairments and alleged need to lie down on a daily basis was only partially credible.
Plaintiff argues that the ALJ did not explain his finding that her impairments did not meet or equal a listed impairment or refer to a particular listed impairment, and that this failure is sufficient to require remand under Clifton v. Chater, 79 F.3d 1007 (10th Cir. 1996).
Under the Social Security Act,
[t]he Commissioner of Social Security is directed to make findings of fact, and decisions as to the rights of any individual applying for a payment under this subchapter. Any such decision by the Commissioner of Social Security which involves a determination of disability and which is in whole or in part unfavorable to such individual shall contain a statement of the case, in understandable language, setting forth a discussion of the evidence, and stating the Commissioner's determination and the reason or reasons upon which it is based.42 U.S.C. § 405(b)(1). The record must therefore "demonstrate that the ALJ considered all of the evidence," by "discussing the evidence supporting his decision, . . . the uncontroverted evidence he chooses not to rely upon, [and] significantly probative evidence he rejects."Clifton, 79 F.3d at 1009-10. Nevertheless, the ALJ is not obligated to discuss every piece of evidence and the Court should not weigh evidence in cases before the Social Security Administration.Id. (citing 42 U.S.C. § 405(g) (factual findings of Commissioner conclusive if supported by substantial evidence); Cagle v. Califano, 638 F.2d 219, 220 (10th Cir. 1981) (court does not weigh evidence or substitute its judgment for that of Secretary) andConsolo v. Fed. Maritime Comm'a 383 U.S. 607 619-20 (1966) (discussing similar "substantial evidence" standard under Administrative Procedure Act, now codified at 5 U.S.C. § 706(2)(E)).
In Clifton, the Tenth Circuit reversed the district court and remanded the case for additional proceedings because the ALJ made "such a bare conclusion" that it was effectively "beyond meaningful judicial review." 79 F.3d at 1009. Clifton was based on the fact that "the ALJ did not discuss the evidence or his reasons for determining that appellant was not disabled at step three, or even identify the relevant Listing or Listings; he merely stated a summary conclusion that appellant's impairments did not meet or equal any Listed Impairment." Id
In contrast, the ALJ here identified the relevant listings and found that "claimant does not have impairments, considered singularly or in combination, which meet or equal any criteria contained in the Listing of Impairments in Appendix 1." Tr. 22. The ALJ also evaluated the evidence in light of plaintiff's allegations regarding the severity of her impairments. Specifically, the ALJ noted that he had considered plaintiff's testimony, work record and daily activities questionnaires, see Tr. 22; the testimony of Dr. DeMarco, who had reviewed the entire record, see Tr. 23; and the medical evidence of record — including Dr. Davis' evaluationof January 24, 2001, Dr.Mouille'sreport of October 1999, Dr. Campbell's report of September 1999, and a letter which plaintiff wrote to her physician in October 1999, see Tr. 25-26. The ALJ also considered the testimony of two vocational experts. Tr. 26. These findings are not the type of summary conclusion the Tenth Circuit rejected in Clifton, and they are not beyond meaningful judicial review.
The ALJ indicated that he had reviewed the record and considered all the evidence. Contrary to plaintiff's suggestion, the ALJ provided a sufficient rationale for determining the weight which he accorded the medical evidence. The ALJ findings — that plaintiff does not have impairments which meet or equal any criteria in the Listing of Impairments, that plaintiff's testimony was only partially credible, and that plaintiff was not so disabled as to be prevented from performing substantial gainful activity — are supported by substantial evidence. See Kelley v. Chater, 62 F.3d 335, 337 (10th Cir. 1995) (court will notreweigh evidence or substitute its discretion for that of agency). Further, the ALJ identified the relevant listings (Appendix 1, Subpart P, Regulations No. 4), which he compared to plaintiff's impairments — and he explained that plaintiff's impairments did not meet or equal those contained in the relevant listings. These are findings which the Court can review. The Court concludes that the ALJ analysis is legally sufficient and provides significant substance for review, which is what Clifton requires.
III. Plaintiff's Credibility
Plaintiff argues that the ALJ improperly discounted her testimony and erred in establishing a residual functional capacity ("RFC") which conflicted with her testimony, the medical evidence and the opinions of her treating physicians. The Commissioner responds that the ALJ properly evaluated plaintiff's subjective complaints of pain using the standards set forth in Luna v. Brown. 834 F.2d 161 (10th Cir. 1987), and the regulations, and that in making his credibility determination, the ALJ properly considered plaintiff's work record, testimony and questionnaires regarding her daily activities, and the objective medical evidence of record.
The Tenth Circuit has set forth the proper framework for analyzing evidence of disabling pain. The relevant factors are (1) whether claimant proves with objective medical evidence an impairment that causes pain; (2) whether a loose nexus exists between the impairment and the subjective complaints of pain; and (3) whether the pain is disabling based upon all objective and subjective evidence. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); Luna. 834 F.2d at 163-64. In the final step, the ALJ should consider the following factors:
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).
As noted above, the ALJ found that plaintiff's daily activities were inconsistent with her claim of a debilitating medical condition, and that her testimony with respect to the severity of her overall medical condition and her alleged need to lie down on a daily basis was only partially credible. Plaintiff argues that the ALJ did not address her five — year effort to seek relief from her pain and symptoms; the location, duration, frequency and intensity of her pain or symptoms; factors which precipitated or aggravated the symptoms; the type, dosage, effectiveness and side effects of any medications; treatment other than medication; or any other factors concerning plaintiff's functional limitations and restrictions due to pain or other symptoms. Plaintiff argues that the ALJ therefore erred in discounting her testimony.Plaintiff's Brief In Support Of Reversing The Administrative Decision Of Defendant (Doc. #6) filed September 26, 2003 at 55-56.
In reviewing ALJ 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 v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988) (footnote omitted)). So long as he sets forth the specific evidence he relies on in evaluating the claimant's credibility, the ALJ is not required to conduct a formalistic factor — by — factor recitation of the evidence. White v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2001); see Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). "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.
Plaintiff argues that she has established the "loose nexus" required under Luna v. Bowen, 834 F.2d 161, 164 (10th Cir. 1987), between her conditions and her allegations of pain and other limitations. The ALJ did not dispute the presence of severe impairments which might produce pain or other disabling limitations. Instead, the ALJ reviewed plaintiff's daily activities questionnaire and the medical evidence and listened to her testimony. He noted that plaintiff's subjective complaints were inconsistent with her daily activities; that the record contained insufficient objective medical evidence to support her complaints; and that plaintiff's cognitive test results were inconsistent with a mental disability. Tr. 22-26. Specifically, the ALJ summarized plaintiff's testimony regarding her impairments as follows:
Specifically, the ALJ found that plaintiff has the following severe impairments: GERD, status post surgical repair with Nissen fund aplication, not treated and controlled with medication; history of bronchial asthma, treated with medication; history of migraine headaches; irritable bowel syndrome; hypertension, without evidence of end organ damage, and treated with medication; depression, NOS; bilateral plantar fasciitis, right greater than left, diagnosed in January 2001; and allegations of chronic fatigue syndrome, fibromyalgia and dementia, not substantiated or supported by the totality of the evidence of record. Tr. 28-29.
Claimant appeared in person at the hearing and testified as to her alleged impairments and resultant functional limitations. Herein, she testified to an inability to work due to her gastroesophageal reflux disease and irritable bowel syndrome. Reference was made to a history of severe abdominal pain, difficulty swallowing food, regurgitationand hoarseness. Claimant also indicated that she had irritable bowel problems, and experienced symptoms such as bloating, flushing sensation, and severe constipation. Claimant also indicated that she had a history of migraine headaches, chronic fatigue and daily fevers. Reference was further made to daily bouts of diarrhea, and claimant testified that she sometimes soiled her clothing as a result thereof. Additionally, claimant noted that she suffered from depression and severe mood swings, and had problems with concentration and memory. Overall, claimant noted that she was required to lie down a few hours each day due to her severe symptomatology, namely her chronic fatigue.
Tr. 22.
In evaluating plaintiff's credibility, the ALJ then considered plaintiff's work record (which was not problematic) and daily activities. Tr. 22. Plaintiff's activities may be considered in determining whether she is able to engage in substantial gainful activity. See Talbot v. Heckler, 814 F.2d 1456, 1462 (10th Cir. 1987). The ALJ found plaintiff only partially credible because her daily activities were inconsistent with her claim of a debilitating medical condition. Specifically, the ALJ noted that:
With respect to the ability to care for personal needs such as bathing, grooming, dressing, etc., claimant reported that she required no help with these activities. Claimant also reported . . . that she fixed easy microwaveable meals two to three times per week, and that she required no help with this. Household chores included dusting, and cleaning the bathroom and kitchen, and claimant reported that she spent one hour on these chores each week. Claimant further reported that she handled the finances, and paid the bills, spending three hours per month on this activity. Grocery shopping was another activity claimant performed . . . and she indicated that she prepared the grocery list, and could carry small items of groceries.
Pleasurable activities included watching television several hours each day, and listening to tapes at night to help her sleep. Claimant also reported that she made use of the local public library, and checked out books. Overall, claimant indicated that she spent 1 to 2 hours a day away from her home, for activities such as walking, or going to the library. She cited other activities such as writing, learning Hebrew, and spending time on the Internet. . . .[she] testified that she composed and typed articles on the computer, indicating that she had submitted some of her articles to "Reader's Digest" and "Christianity Today." Claimant . . . was active in the synagogue, writing letters to the editor, as well as to the "Jewish Chronicle."
Tr. 22-23.
The ALJ found that even though plaintiff could not perform her past relevant work as a registered nurse, her daily activities were inconsistent with total disability and she did not have a condition of disabling severity which would prevent her from performing substantial gainful activity. In other words, at the final step of the Luna analysis, the ALJ determined that plaintiff's pain and limitations were not as severe as she alleged, that her complaints were inconsistent with the medical record and her own statements, and found that her impairments did not meet or equal any criteria containing in the Listing of Impairments, Appendix 1, Subpart P, Regulations No. 4.
As stated above, the ALJ also rejected plaintiff's complaints because they were not supported by the objective medical and clinical findings of record. See Tr. 23. The ALJ referred to several medical reports which showed non — disabling physical symptoms allowing for sedentary exertional activity and no significant psychological limitations. See id The ALJ's conclusion is supported by substantial evidence. See Luna. 834 F.2d at 165-66 (lack of objective medical evidence to support degree of pain alleged is important factor to consider in evaluating claim of disabling pain); Talley v. Sullivan, 908 F.2d 585, 587 (10th Cir. 1990) (medical records must be consistent with nonmedical testimony as to severity of pain).
For reasons stated above, the Court finds that the ALJ's decision to find plaintiff only partially credible is 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)).
IV. Testimony Of Vocational Expert
As noted above, the ALJ found that plaintiff satisfied steps one and two but not step three. At step four, plaintiff met her burden of establishing that she could not perform her past relevant work as a registered nurse. The burden therefore shifted to the Commissioner to establish that claimant is capable of performing work in the national economy. See Williams, 844 F.2d at 751. To determine whether jobs exist in the national economy which plaintiff can perform, the ALJ requested the testimony of two vocational experts — Salva and Cordray.
Plaintiff argues that the ALJ improperly relied on vocational expert testimony that she can perform substantial gainful activity. Specifically, plaintiff argues that the vocational expert opinions do not relate with precision to her impairments because they are based on hypothetical which the ALJ proposed, rather than limitations which Dr. Davis identified, and that the vocational expert opinions therefore cannot constitute substantial evidence to support the ALJ decision.
An ALJ is obligated to propound questions to the vocational expert which incorporate plaintiff's limitations as supported by the evidence.Davis v. Barnhart 85 Fed. Appx. 170, 173, 2004 WL 33637, *3 (10th Cir. 2004) (citing Evans v. Chater. 55 F.3d 530, 532 (10th Cir. 1995) (ALJ must include in hypothetical inquiry only impairments supported by record)). As noted above, the ALJ did not err in discounting Dr. Davis' opinions and he therefore was not obligated to propound questions which incorporated the limitations which Dr. Davis identified or plaintiff's complaints which were not credible.
When questioning vocation expert Salva, the ALJ used hypotheticals which incorporated the following impairments which were supported by the record: "gastro — esophageal reflux disease, a history of hypertension, not well controlled, complaints of abdominal pain and discomfort, bowel problems, fatigue and headaches, fever and mental depression." Tr. 60. The ALJ asked Salva what jobs plaintiff could do if she had these impairments, in combination, and was restricted to work that would not require her to lift and carry more than ten pounds and was in a climate controlled environment to accommodate any breathing difficulties. Tr. 60. This hypothetical was proper, as it incorporated impairments and limitations which the record supported.
The ALJ used a similar hypothetical when he questioned Cordray. Specifically, the ALJ asked Cordray what jobs plaintiff could perform with a history of gastro — esophageal reflux disease created by medication, hypertension treated by medication, bronchial asthma treated by medication and considered not severe, a history of migraine headaches, irritable bowel syndrome, other conditions that had been described as fibromyalgia and chronic fatigue syndrom, and more recently plantar fasciitis. Tr. 95. The ALJ also asked Corday to assume that plaintiff was capable of carrying up to 20 pounds occasionally and ten pounds frequently, and that she was restricted to relatively simple, non — complex work and would not have to do work which required things to be done in a quick period of time. Tr. 96-97. This hypothetical was also proper as it incorporated the impairments and limitations which the record supported.
Because the ALJ used hypotheticals which incorporated impairments and limitations which the record supports, the testimony of the vocational experts constitutes substantial evidence on which the ALJ could properly rely.
IT IS THEREFORE ORDERED that Plaintiff's Brief In Support Of Reversing The Administrative Decision Of Defendant (Doc. #6) filed September 26, 2003 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that the Judgment of the Commissioner is AFFIRMED.