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finding no treating relationship because, although plaintiff went to doctor's clinic for twenty-five years, there was no evidence that the doctor reviewed plaintiff's record or was involved in claimant's treatment
Summary of this case from Sharon M. v. Comm'r, Soc. Sec. Admin.Opinion
Civil No. 01-279 (JRT/AJB).
March 18, 2002
Randall J. Fuller, BABCOCK, NEILSON, MANNELLA, LaFLEUR AND KLINT, Anoka, Minnesota for plaintiff.
Lonnie F. Bryan, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Minneapolis, Minnesota for defendant.
MEMORANDUM OPINION AND ORDER AFFIRMING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Plaintiff Muriel E. Moser is suing the Commissioner of Social Security ("Commissioner"), seeking judicial review of the Commissioner's denial of her application for a period of disability and disability insurance benefits. Plaintiff moved for summary judgment, asking this Court to reverse the Commissioner's decision or to remand the matter for further administrative action. The Commissioner filed a cross-motion for summary judgment.
The matter is now before the Court on plaintiff's objections to the Report and Recommendation of United States Magistrate Judge Arthur J. Boylan dated November 9, 2001. The Magistrate Judge recommended granting the Commissioner's motion for summary judgment and denying plaintiff's motion. The Court has reviewed de novo the objections to the Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(C) and D. Minn. LR 72.1(c)(2). For the reasons set forth below, the Court adopts the Magistrate Judge's recommendation, and grants the Commissioner's motion for summary judgment.
BACKGROUND
Following is a brief summary of the relevant facts. Plaintiff applied for a period of disability and disability insurance benefits on May 14, 1998, alleging that she became disabled on September 1, 1996. Plaintiff claimed that her disability was the product of hip pain, leg pain, and fatigue. Plaintiff was fifty-seven years old when she applied for benefits. Plaintiff's application was denied both initially and on reconsideration. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), which was held on June 21, 1999. Plaintiff, Dr. Andrew Steiner, and Norman Mastbaum, a vocational expert, appeared and testified at the hearing. In a decision dated October 13, 1999, the ALJ denied plaintiff's application, finding plaintiff was not disabled.
The Magistrate Judge extensively discussed the facts in the Report and Recommendation, and the Court incorporates that discussion herein by reference.
In making her determination, the ALJ applied the five-step analysis codified at 20 C.F.R. § 404.1520. First, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset of her disability. Second, the ALJ concluded that plaintiff suffered from the severe impairments of steroid-induced osteoarthritis, high blood pressure, and hepatitis. Third, the ALJ determined that, although severe, plaintiff's impairments did not meet or equal an impairment listed in the regulations. Therefore, her impairments did not warrant a presumption of disability. Fourth, the ALJ determined plaintiff's residual functional capacity ("RFC"), and found that plaintiff had the RFC to perform work in the sedentary category. Accordingly, the ALJ concluded that plaintiff was able to perform her past relevant work. Based on these findings, the ALJ concluded that plaintiff was not disabled, and did not proceed to step five.
Plaintiff sought review of the ALJ's decision by the Appeals Council. The Appeals Council denied review, concluding there was no basis under the applicable regulations for granting review. This denial made the ALJ's decision the final decision of the Commissioner.
ANALYSIS
Plaintiff now objects to the Magistrate Judge's findings that: (1) Dr. Koch and Dr. Drogt are not treating sources; (2) the ALJ's decision to discount the opinions of Dr. Koch and Dr. Drogt was supported by substantial evidence; and (3) the ALJ properly discounted plaintiff's subjective complaints.
I. Standard of Review
The Court may reject the ALJ's decision only if it is not supported by substantial evidence on the record as a whole. Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994); 42 U.S.C. § 405(g). Even if the Court could draw two inconsistent conclusions from the same record, that does not preclude the decision from being supported by substantial evidence. Culbertson, 30 F.3d at 939. Even if the Court might have weighed the evidence differently, it may not reverse the decision when there is enough evidence in the record to support either outcome. Id.; Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992).
II. Dr. Koch and Dr. Drogt as Treating Sources
The Magistrate Judge found that neither Dr. Koch nor Dr. Drogt were treating sources, and therefore, their opinions are not entitled to any deference. A "treating source" must be plaintiff's "own physician, psychologist, or other acceptable medical source who provides . . . or has provided [plaintiff] with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship" with plaintiff. 20 C.F.R. § 404.1502; Branson v. Callahan, 14 F. Supp.2d 1089, 1098 (N.D.Iowa 1998). An "acceptable medical source" includes clinics that have treated or evaluated the applicant. McClellan v. Apfel, 2000 WL 433094 at *8 (D.Kan. Apr. 12, 2000). See 20 C.F.R. § 404.1502. See also Federal Old-Age, Survivors, Disability Insurance Supplemental Security Income for the Aged, Blind, Disabled; Evaluating Opinion Evidence, 65 Fed. Reg. 11866 (Mar. 7, 2000) (explaining amendment to 20 C.F.R. § 404.1502 regarding definition of acceptable medical source).
A treatment relationship is "ongoing" if medical evidence establishes that plaintiff is seeing, or has seen, an acceptable medical source with a "frequency consistent with acceptable medical practice for the type of treatment and/or evaluation required for [her] medical condition(s)." 20 C.F.R. § 404.1502; Branson v. Callahan, 14 F. Supp.2d 1089, 1098 (N.D.Iowa 1998). Thus, a doctor who has treated or evaluated plaintiff only a few times or only after a long delay may still be considered a treating source if that degree of treatment is appropriate for her condition. Id. A physician is not considered a treating source if the relationship is based solely upon the applicant's need to obtain a report in support of a disability claim. Id.
Upon applying these standards to facts in the record, the Court agrees with the Magistrate Judge that neither Dr. Koch nor Dr. Drogt were treating sources. As to Dr. Drogt, the record gives no indication that he had an ongoing physician-patient relationship with plaintiff. Dr. Drogt examined and treated plaintiff only twice. (Tr. at 191, 215.) These visits were within ten days of each other, and the second visit appears to have been a follow-up to the first. Id. On his RFC assessment of plaintiff, Dr. Drogt himself acknowledged the brevity of the relationship. Moreover, Dr. Drogt issued his RFC assessment in June 1999, thirteen months after he examined plaintiff. The record does not indicate that Dr. Drogt treated or examined plaintiff during this time. The fact that the treatment relationship between plaintiff and Dr. Drogt was so brief, and was initiated when plaintiff first filed for disability benefits, raises a concern that the relationship may have been based solely upon plaintiff's need to obtain a report in support of her disability claim. See 20 C.F.R. § 404.1502 (stating that such relationships do not make the physician a treating source); Branson v. Callahan, 14 F. Supp.2d 1089, 1098 (N.D.Iowa 1998). For these reasons, the Court finds that Dr. Drogt is not a treating source.
The RFC questionnaire shows the duration of the relationship as May 11, 1998 to May 28, 1998. (Tr. at 278-83.) Even if this time frame is correct, it still does not establish the requisite ongoing relationship.
Even if this is true, Dr. Drogt's RFC assessment gives plaintiff little help. As discussed in Part III of this Opinion, Dr. Drogt's conclusion differs little from that of the ALJ.
The question of Dr. Koch's status presents a closer issue than portrayed by the Magistrate Judge. For instance, although plaintiff did not list Dr. Koch as a treating physician on an April 1998 disability report, she did list him as a treating physician on two subsequent Social Security forms. (Tr. at 88-93, 163-64.) Furthermore, Dr. Koch's clinic treated plaintiff for twenty-five years. (Tr. at 284.) This length of time indicates that plaintiff's relationship with Dr. Koch may indeed be the type contemplated by the regulations. On the other hand, as the Magistrate Judge noted, no evidence indicates that Dr. Koch reviewed plaintiff's record before rendering his opinion, nor does the record contain evidence that Dr. Koch was involved in plaintiff's treatment. Upon a de novo review, the Court finds that the Magistrate Judge was correct in upholding the ALJ's determination on Dr. Koch. This question, however, is largely academic, because even if Dr. Koch is a treating source, the Court determines that the ALJ correctly discounted his opinion. See Part III.
III. Discounting the Opinions of Dr. Koch and Dr. Drogt
Plaintiff further objects to the Magistrate Judge's determination that the ALJ properly discounted the opinions of Dr. Koch and Dr. Drogt. Plaintiff claims that the ALJ did not provide sufficient reasons for discounting these medical opinions. The ALJ acknowledged Dr. Koch's opinion, but discounted it as inconsistent with medical evidence in the record. (Tr. at 30-31.) The ALJ did not mention Dr. Drogt's opinion in her determination.
The opinion of a treating source is entitled to greater weight and deference than that of a non-treating source. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000); Ghant v. Bowen, 930 F.2d 633, 639 (8th Cir. 1991). Nevertheless, the opinion of a treating source is not conclusive in determining disability. Cunningham v. Apfel, 222 F.3d 469, 502 (8th Cir. 2000). The medical opinion of a treating source is controlling only where the opinion is well supported by medically acceptable clinical and laboratory diagnostic techniques, and is not inconsistent with other substantial evidence. 20 C.F.R. § 404.1527(d)(2); Singh, 222 F.3d at 452; Cunningham, 222 F.3d at 502. Therefore, if the treating source's opinion is inconsistent with other substantial evidence in the record, it will not be afforded controlling weight. An ALJ's failure to consider or discuss a treating physician's opinion that a claimant is disabled "constitutes error where . . . the record contains no contradictory medical opinion." Prince v. Bowen, 894 F.2d 283, 285-86 (8th Cir. 1990).
Even if Dr. Koch was considered a treating source, the Court finds that the ALJ properly discounted his opinion based upon substantial contradictory evidence in the record. The ALJ pointed specifically to the records kept by Dr. William Wiencke and the testimony of Dr. Andrew Steiner. Dr. Wiencke has been plaintiff's physician since 1996; his records do not indicate that plaintiff is in disabling pain. (Tr. at 290-96.) Dr. Andrew Steiner appeared at the hearing as a medical expert; he testified that plaintiff is able to perform work in the sedentary category. (Tr. at 57-58.)
In addition, Dr. Koch's records do not indicate that plaintiff is disabled. First, Dr. Koch's treatment of plaintiff appears to have been for conditions unrelated to her claimed disability. Second, as the Magistrate Judge noted, there is no evidence that Dr. Koch reviewed plaintiff's medical record before assessing her condition for the disability claim. The Court therefore determines that a reasonable mind could accept a conclusion contrary to Dr. Koch's view on plaintiff's disability claim. The ALJ correctly found that his opinion is inconsistent with other substantial evidence in the record and is properly discounted.
Dr. Koch treated plaintiff for sinusitis in October 1997. (Tr. at 294.) Dr. Koch also ordered tests on plaintiff for an unspecified condition in December 1994, and treated her for gallstones in November 1994. (Tr. at 212-13, 217-18.)
As for Dr. Drogt, he is not a treating physician and thus his opinion is not entitled to deference and the ALJ did not err in discounting it. Plaintiff objects, however, because the ALJ's did not discuss Dr. Drogt's opinion. In Black v. Apfel, the Eighth Circuit held that the ALJ is not required to discuss every item of evidence submitted. 143 F.3d 383, 386 (8th Cir. 1998) ("An ALJ's failure to cite specific evidence does not indicate that such evidence was not considered."); Miller v. Shalala, 8 F.3d 611, 613 (8th Cir. 1993) (per curiam). In the present case, the ALJ referenced Dr. Drogt's examination of plaintiff, indicating that she was aware of plaintiff's relationship with him. (Tr. at 30.) The Court finds no need, however, for the ALJ to have explicitly refuted or discounted Dr. Drogt's RFC determination, because his view seems nearly identical to that of the ALJ.
Dr. Drogt's RFC assessment concluded, like the ALJ, that plaintiff is capable of performing sedentary work. (Tr. at 279, 33.) His conclusion differs from that of the ALJ only in the amount of time per day that plaintiff may work; Dr. Drogt recommends that this time be limited to four hours per day, while the ALJ stated that plaintiff may work up to six hours per day. Id. Although it is not clear, the two opinions might also differ as to how much of that time may be spent standing or walking. Id. Because both Dr. Drogt and the ALJ reached the same ultimate conclusion — that plaintiff may perform sedentary work — the Court finds these differences to be of minimal significance. The ALJ did not err by failing to discuss Dr. Drogt's opinion.
IV. Articulation of Reasons for Rejecting Plaintiff's Subjective Complaints
Plaintiff also claims that the ALJ did not articulate specific reasons for discounting her subjective complaints. The ALJ found "significant inconsistencies" between plaintiff's claims and the record as a whole, and therefore determined that her complaints were only partly credible. (Tr. at 31.) Specifically, the ALJ found that plaintiff's impairments could produce the symptoms of which she complained, but that that this did not amount to evidence that she cannot perform substantial gainful employment.
In Polaski v. Heckler, the Eighth Circuit established several factors the Court must consider when evaluating subjective complaints. 739 F.2d 1320 (8th Cir. 1984). These factors include objective medical evidence, claimant's prior work record, and observations by third parties and treating/examining physicians regarding: (1) claimant's daily activities; (2) the duration, frequency and intensity of the pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects of medication; and (5) functional restrictions. Id. at 1322.
When conducting a Polaski analysis, "the ALJ must make an express credibility finding and give . . . reasons for discrediting the testimony." Reynolds v. Chater, 82 F.3d 254, 258 (8th Cir. 1996) (citation omitted). However, a lack of specific findings does not require reversal if the ALJ clearly made implicit determinations about the applicant's credibility. See id. ("Although specific delineations of credibility findings are preferable, an ALJ's arguable deficiency in opinion-writing technique does not require us to set aside a finding that is supported by substantial evidence.").
In the present case, the Court finds that the ALJ conducted a proper Polaski analysis, and based upon that analysis, clearly determined that plaintiff's subjective complaints were not credible. First, it is evident from the ALJ's decision, the record, and the discussion earlier in this Opinion that the ALJ considered the objective medical evidence. (Tr. at 30-31.) Second, the record also shows that the ALJ considered plaintiff's work history, discussing her earlier jobs and noting that her previous work falls in the sedentary category. (Tr. at 29, 32.)
Like the ALJ, this Court finds it significant that plaintiff's testimony is frequently inconsistent with the medical records. (Tr. at 31.) Inconsistencies between medical reports and plaintiff's testimony can alone provide a sufficient basis to discount her subjective complaints of pain. Matthews v. Bowen, 879 F.2d 422, 425 (8th Cir. 1989). The Court has reviewed plaintiff's medical records, which were accurately summarized by the Magistrate Judge. See Rep. Rec. at 14. These records reveal periodic complaints about leg pain, but are devoid of complaints about disabling symptoms.
Finally, the ALJ considered plaintiff's daily activities, pain characteristics, medication, aggravating factors, and functional restrictions. Specifically, the ALJ noted that plaintiff is able to cook, vacuum, and do the laundry and other light housekeeping. (Tr. at 29.) The ALJ also noted that plaintiff takes nothing more than Advil for her pain. (Tr. at 29.) This "does not suggest a disabling degree of pain." Ostronski v. Chater, 94 F.3d 413, 419 (8th Cir. 1996) (stating that plaintiff's use of aspirin undercuts claimant's complaints of disabling pain); Haynes v. Shalala, 26 F.3d 812, 814 (8th Cir. 1994) (stating lack of strong pain medication is inconsistent with subjective complaints of disabling pain); Nelson v. Sullivan, 966 F.2d 363, 367 (8th Cir. 1992) (same). The ALJ also considered the characteristics of plaintiff's pain, noting that plaintiff experiences pain in her left hip, knee and leg, and hands, as well as headaches and fatigue. (Tr. at 29.) The ALJ also noted plaintiff's testimony that pain does not interrupt her sleep and that she has no trouble sleeping. Id.
From the foregoing, it is clear to the Court that the ALJ considered all of the relevant Polaski factors in determining plaintiff's credibility. The Court therefore concludes that the ALJ implicitly — if not expressly — based her credibility determination upon those factors. Accordingly, the Court finds that the ALJ properly discounted plaintiff's subjective complaints.
ORDER
Based on the foregoing, the submissions of the parties, and all of the files, records, and proceedings herein, the Court OVERRULES plaintiff's objections [Docket No. 10] and ADOPTS the Report and Recommendation of the Magistrate Judge [Docket No. 9]. Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for summary judgment [Docket No. 5] is DENIED.
2. Defendant's motion for summary judgment [Docket No. 7] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.