Opinion
Case No. 03-1038-WEB
December 9, 2003
MEMORANDUM AND ORDER
Plaintiff seeks judicial review of the Defendant's decision denying his application for disability benefits under Title II of the Social Security Act. After a review of the record and consideration of the arguments raised by Plaintiff, the Court affirms the Defendant's decision.
I. FACTS
The facts, which are not in dispute, may be summarized as follows. Plaintiff was born on April 4, 1958, and has a high school education. For the 15 years preceding his stated disability date of November 10, 1998, he did relatively heavy warehouse and maintenance work. The record shows Plaintiffs physical problems began in 1994 when he injured his right knee. He had surgery on the knee, but complications required a second surgery for a skin graft. In early 1998, Plaintiff complained of upper extremity pain after moving heavy drums at work. Plaintiff was seen by a Dr. Kuhns, whose clinical notes are not in the record According to the notes of George Fluter, M.D., to whom Plaintiff was referred by Dr. Kuhns, blood work ordered by Dr. Kuhns did not reveal any systemic diseases. When Dr. Fluter examined Plaintiff in March 1998, Plaintiff's complaints of pain had increased:
[T]he patient states that he has aching and stabbing pain in most joints with burning and stabbing pain in most muscles and tendons. He indicates on the pain diagram that he has aching, stabbing, and burning pain generally affecting all areas of joint and limb muscles. In addition, he indicates that he has aching pain along the right side of his head which he believes is due to tension. He has aching anD stabbing pain along the axial spine; he has numbness affecting the hands and feet. He rates the average daily level of pain at 9 on a scale of 0 to 10.
(R. 365.) Dr. Fluter diagnosed right knee dysfunction/status post operative repair, and fibromyalgia. Dr. Fluter recommended that Plaintiff return to work part-time for two weeks and full time thereafter with a restriction of occasional work at or above the shoulder level.
Fibromyalgia is a syndrome of pain in the fibrous tissues. The symptoms are entirely subjective, and their severity cannot not be demonstrated by laboratory tests. Nevertheless, courts have recognized that the pain can be disabling. See Anderson v. Apfel, 100 F. Supp.2d 1278, 1286 (D.Kan. 2000), and cases cited therein.
Plaintiff saw Dr. Fluter again in April 1998. Plaintiff had discontinued physical therapy because he could tolerate the activity, and he reported no improvement in his condition. Plaintiff had been transferred to a desk job, but he stated that this hurt his shoulders. Dr. Fluter made no further treatment recommendations and told Plaintiff to make return appointments as needed.
Plaintiff continued intermittently with physical therapy, and he also saw R.M. Varner, D.O. Dr. Varner ordered x-rays which showed a normal cervical spine, only minimal spurring in the mid-thoracic spine, and the possibility of some lumbar disc disease. An MRI of the thoracic region showed a mildly protruding disk but no evidence of nerve root pressure or stenosis.
After discussing the results with Plaintiff, Dr. Varner recorded that he had, "[n]othing else to offer other than to continue meds." (R.289.) Dr. Varner did begin frequent manipulations of Plaintiff's spine, however, performing the procedure nearly weekly through the end of 1998, and less frequently into 2001. The records of the visits show the examinations were limited to vital signs, a record of the physical complaints and current medications, and a repeated finding of "[a]bnormal tissue tone and tenderness cervical thoracic lumbar area." (R. 282.)
Plaintiff saw Dr. Fluter one more time, in March 1999, when Plaintiff reported increased overall body pain. Dr. Fluter again found tender points consistent with fibromyalgia, and he thought it "apparent that [Plaintiff] was suffering from a chronic pain syndrome." (R. 343.) Dr. Fluter recommended Plaintiff continue his home exercise program and return for a revaluation in three months. Plaintiff did not keep the revaluation appointment.
Both Drs. Varner and Fluter completed questionnaires provided by Plaintiff's counsel. Dr. Varner opined that Plaintiff could sit for 0-1 hours in an eight hour work day, and stand or walk for 0-1 hours per day. Among many other work restrictions, Dr. Varner thought Plaintiff required unscheduled breaks every 30-45 minutes, and that he would likely miss more than three days of work each month. Dr. Fluter thought Plaintiff could sit four hours per day and stand or walk for four hours per day. Dr. Fluter thought it likely Plaintiff would need three to four unscheduled breaks each day, and that he would likely miss one day of work per month.
Plaintiff was also seen twice by Jack L. Perkins, M.D., for consultative examinations. In the first examination, Dr. Perkins found multiple arthralgias, and in the second examination the diagnosis was expanded to include fibromyalgia. A physical residual functional capacity form was completed by a non-examining physician, M. Stockwell, M.D., who found from all the evidence in the file that Plaintiff could sit with normal breaks for a total of about 6 hours in an eight hour day.
Arthralgia: "pain in a joint." Dorland's Illustrated Medical Dictionary (27th ed. 1988).
At the hearing, Plaintiff testified that his pain was moderated by medications. On a ten-point scale, Plaintiff said the pain in his right knee was a three or four, his shoulders were a two, his neck a three or a four, and his lower back a four. Plaintiff stated he could walk four or five blocks on a good day, but less than 200 feet on a bad day. Plaintiff claimed he could sit for 20 to 30 minutes at the most, and that he could lift 35 to 40 pounds.
The ALJ also took evidence from a vocational expert (VE). The VE was asked whether available jobs could be performed by an,
individual of the [Plaintiffs] age, education and work experience . . .[with] the following exertional and non-exertional limitations . . . occasionally lift and carry 20 pounds, frequently lift and carry 10 pounds, stand or walk for a total of two hours in an eight hour workday, sit six hours in an eight hour workday, must periodically every 30 minutes sit, stand, change positions, push/pull limitations are the same as the lift/carry and with the following postural limitations, only occasionally climbing ladders, ropes and scaffolds, could frequently climb ramps and stairs, could frequently balance with only occasionally stoop, kneel, crouch, crawl, avoid. . . concentrated exposure to extreme cold and humidity and wetness.
Given this residual functional capacity (RFC), the VE stated forty percent of the sedentary unskilled job base would remain, and that representative jobs were available in the area. The VE testified that no jobs were available for an individual who would miss three or four days per month, however, or who must stretch 10-15 minutes every thirty minutes.
The ALJ found that Plaintiff had several severe impediments: "degenerative disc disease of the lumbar and thoracic spine with protrusion of the T7-8 disc; status-post right knee surgery; diagnosed fibromyalgia; myofascitis, alternatively diagnosed as myofascial pain or chronic pain syndrome; and hypertension-partially controlled with medication." (R 25-26.) The ALJ found Plaintiff's complaints of pain only partially credible, and he did not give the opinions of his treating physicians controlling weight. The ALJ adopted the RFC presented at the hearing to the VE and found Plaintiff could not perform his past relevant work. The ALJ found the Plaintiff could perform the sedentary work identified by the VE, however, thus determining at step five that the Plaintiff was not disabled
II. DISCUSSION
Plaintiff alleges the following errors: "the ALJ failed to give controlling weight to Plaintiffs treating physician, the ALJ erred in his analysis of Plaintiffs claims of pain, and the ALJ's finding regarding Plaintiffs RFC levelis not supported by substantial evidence." Plaintiff's Brief, at 2. Plaintiffs counsel at the hearing also asked for a psychological or psychiatric consultative exam, but the ALJ denied that request, holding in his decision that, "the [Plaintiff] is not prevented from submitting a new application for benefits to allege a mental impairment that is medically determinable, severe and expected to last 12 months." (R. 20.) Plaintiff does not seek judicial review of this order or any other determination or finding regarding his mental state.
A. Standard of Review
The Court must affirm the Defendant's final decision if it is supported by substantial evidence. 42 U.S.C. § 405(g); White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2002). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842, 852 (1971) (citation omitted).
While the Court must not reweigh the evidence or substitute its judgment for the Defendant, the Court must examine the record as a whole, "including whatever in the record fairly detracts from the weight of the [Defendant's] decision, and, on that basis, determine if the substantiality of the evidence test has been met." Casias v. Secretary of Health Human Services, 933 F.2d 799, 800-01 (10th Cir. 1991) ( citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456, 467-68 (1951). The Court will typically defer to the Defendant on issues of credibility, but even credibility determinations should be "closely and affirmatively linked to substantial evidence. . . ." Kent v. Apfel, 75 F. Supp.2d 1170, 1172 (D.Kan. 1999) (quoting Winfrey v. Chater, 92 F.3d 1017, 1020 (10th Cir. 1996) (further citations omitted)).
The Defendant's application of law is not subject to a deferential standard of review. Reversal may be appropriate if the Defendant either applied the incorrect legal standard or failed to demonstrate that she relied on the correct legal standard. Casias, 933 F.2d at 801; Schmidt, 39 F. Supp.2d at 1295.
B. Treating Physician
Plaintiff first argues that the ALJ should have given controlling weight to the opinion of Dr. Varner. See Plaintiffs Brief, at 34. The regulations require Defendant to give controlling weight to a treating physician's opinions which are "well-supported by medically acceptable clinical and laboratory diagnostic techniques and [are] not inconsistent with the other substantial evidence in [the] case record. . . ." 20 C.F.R. § 404.1527(d)(2). The Defendant's determination of the weight given to a treating physician's opinion is reviewed for substantial evidence. See Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000); Adams v. Chater, 93 F.3d 712, 714 (10th Cir. 1996); Anderson v. Apfel, 100 F. Supp.2d 1278, 1286 (D.Kan. 2000).
The ALJ gave Dr. Varner's opinions substantial, but not controlling, weight because, "[a]part from initial x-ray findings . . . Dr. Varner's reports are essentially limited to the [Plaintiff's] basic complaint of pain at various sites (typically back or knee), observations of tenderness in the [P]laintiff's thoracic and cervical area, a very generalized assessment of range of motion limitation, and prescription of pain relief and anti-inflammatory medications as well as a TENS unit for pain, at least one steroid injection and a referral to physical therapy." (R. 22.) Plaintiff does not dispute the sparse nature of Dr. Varner's reports but rather argues the ALJ should have developed the record by recontacting Dr. Varner to learn the basis of his opinions.
The Court disagrees. Certainly the Defendant must recontact a physician when the evidence obtained is "inadequate . . . to determine whether you are disabled." 20 C.F.R. § 404.1512(e). But where the evidence is adequate for the ALJ to discount a physician's opinion, there is no such burden. In White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2002), for example, the Tenth Circuit considered whether an ALJ should have recontacted a physician whose report, "rested heavily on . . . subjective assertions of pain," and was based, "less on detailed medical examinations than were the assessments of the consulting physicians." The Tenth Circuit found no such duty because the "ALJ believed the information . . . was `adequate' for consideration," but he "also believed that the conclusion . . . was wrong; that is, it was insufficiently supported by the record as a whole." Id.
Here, similarly, Dr. Varner's treatment notes provide adequate evidence of the nature of the visits. The notes show that the examinations were general and routine, being limited to discussions of medication, possible or actual consultations with other physicians, and the spinal manipulations. Dr. Varner did record Plaintiff's complaints of pain, and the ALJ credited this fact.
When it comes to Dr. Varner's opinion regarding Plaintiff's functional limitations, however, the ALJ accurately noted the lack of medically acceptable clinical and laboratory diagnostic techniques. Dr. Varner's notes record the fibromyalgia diagnosis on an intermittent basis, but there is no indication of an actual clinical evaluation independent of that performed earlier by Dr. Fluter. And, as in White, Dr. Varner's opinion regarding Plaintiff's pain was limited to Plaintiff's subjective complaints. The ALJ had no reason to believe, given the evidence before him, that recontacting Dr. Varner would yield more information relevant to the disability determination.
The ALJ also discussed the questionnaires completed by Dr. Varner. The Court's own review of the record shows substantial evidence supporting the ALJ's decision to not credit all of the opinions expressed in the questionnaires. For example, Dr. Varner listed cervical disk disease as a diagnosis although an earlier x-ray revealed a normal cervical spine. Dr. Varner also thought Plaintiff suffered from rheumatoid arthritis at the time he completed the questionnaire, but by the time of the hearing this had been effectively ruled out. Finally, as the ALJ noted, the reports of Dr. Fluter and a physical therapist did not support the level of restrictions suggested by Dr. Varner.
The ALJ referred to two statements, one from June 1998, and the other from June 2000. The Court cannot locate a June 1998, medical source statement from Dr. Varner in the record. Both questionnaires are dated June 2000, although one has "June, 98" listed as the first date on the first page; this was the date of first treatment, however, not the date of the report. (R. 243.).
The Court cannot locate support for one of the ALJ's specific findings, however. The ALJ found that Dr. Varner's "assessment that the [Plaintiff] can stand or sit for less than 1 hour a day each does not comport with his opinion that the [Plaintiff] can carry significant weight for as much as two-thirds of the day." (R 22.) Dr. Varner actually opined that Plaintiff could lift and carry "0-5" pounds "frequently." (R. 252.).
Dr. Varner's notes from March 7, 2001, show Plaintiff did not have a "clear cut diagnosis even after rheumatology consult." (R. 230.) Dr. Perkins found, "no evidence of inflammatory change, hyperthermia or erythema to suggest active synovitis in spite of his stated history of rheumatoid arthritis." (R. 374.) Radiological examinations of Plaintiff's left shoulder, right knee, elbows, and hands did not show arthritic changes.
The Tenth Circuit has said "repeatedly" that courts are "unable to now reweigh th[e] evidence and substitute [the court's] judgment for the [ALJ's]." White, 287 F.3d at 909. Applying this standard of review, the Court affirms the decision that Dr. Varner's opinions were not entitled to controlling weight.
C. Analysis of Plaintiff's Pain
Plaintiff raises a number of points here, but his essential complaint is that, "the ALJ failed to mention if pain is one of the nonexertional limitations." Plaintiff's Brief, at 40. Pain is not a limitation, whether exertional or nonexertional. Pain is a symptom is related to an impairment which in turn may cause a limitation. See 20 C.F.R. § 404.1529(a) ("In determining whether you are disabled, we consider all your symptoms, including pain. . . .); 404.1545(a) ("Your impairment(s), and any related symptoms, such as pain, may cause physical and mental limitations. . . .); 404.1569a(a) ("Your impairment(s), and related symptoms, such as pain, may cause limitations of function or restrictions which limit your ability to meet certain demands of jobs. These limitations may be exertional, nonexertional, or a combination of both."); SSR 96-8p, *1 ("[S]ymptoms, including pain, are not intrinsically exertional or nonexertional. It is the functional limitations or restrictions caused by medical impairments and their related symptoms that are categorized as exertional or nonexertional.").
There was no error, therefore, in the omission of the word "pain" from the RFC. The RFC is a statement of functional limitations, not of symptoms. See 20 C.F.R. § 404.1545(a) ("Your residual functional capacity is what you can still do despite your limitations."). In this case, the ALJ first analyzed Plaintiff's symptoms of pain, and he then made a finding regarding the resultant limitations and presented it to the VE for both steps four and five. The weight he gave to Plaintiffs complaints of pain, and the connected question of the substantial evidence supporting the RFC, are examined next.
D. The RFC and Substantial Evidence
As seen from the Court's statement of the facts, the ALJ found that Plaintiff has several severe impediments which cause him pain. The remaining issues are the severity of Plaintiff's pain and the extent of the limitations caused by the pain. In making these determinations, the ALJ had to consider the entire record. Plaintiff cites several Eight Circuit authorities for the proposition that the RFC is essentially a medical determination, but the administrative regulations and unpublished Tenth Circuit authority show the determination is entrusted to the ALJ and is based on all the evidence. See 20 C.F.R. § 404.1546 (the responsibility for deciding the RFC rests with the ALJ, and it "is based on all the evidence we have. . . ."); Corber v. Massanari, 2001 WL 1203004, ** 5 (10 Cir. 2001) ("because the [RFC] assessment is . . . based upon all the evidence in the record, not only the relevant medical evidence, it is well within the province of the ALJ").
The ALJ began his analysis by setting out the proper standard for evaluating symptoms of pain under 20 C.F.R. § 404.1529 and Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987). The ALJ then emphasized the fact admitted by Plaintiff at the hearing — that with medication, his pain is generally four or less on a ten point scale. Taken together with prior statements regarding relief obtained with medication, testimony regarding other methods of pain relief, and the findings of the medical sources, the ALJ found that Plaintiff's allegations of disabling pain were not fully credible.
This conclusion was supported by substantial evidence. The ALJ cited a functional capacity evaluation prepared by a physical therapist who conducted a 2-day examination of Plaintiff's abilities. The therapist found that Plaintiff could sit or stand for 30 minutes with only "slight difficulty," and that in total he could sit or stand for up to two-thirds of an eight hour day with frequent weight shifting. (R. 311.) The therapist found Plaintiff could frequently lift 60 pounds to the waist level, 45 points to eye level, and 35 pounds overhead, over the course of an eight hour day. The therapist found Plaintiff could frequently carry 50 pounds in front and 3 5 pounds in either hand Plaintiff walked 1.5 miles in 13 minutes with a slight limp, and the therapist determined he could climb stairs for up to a third of a day.
As the ALJ noted, this evaluation was much less restrictive than Dr. Varner's. The ALJ also noted Dr.Fluter's recommendation in 1998 to return to full-time work, the fibromyalgia diagnosis notwithstanding, and the fact that both Dr. Fluter and Dr. Perkins found, "only mild but widespread reduction of range of motion." (R. 23.) This was commensurate with the medical consultant's finding that Plaintiff could sit for six hours per day. The ALJ's determination that Plaintiff could sit for 6 hours a day with changes in position every 30 minutes was thus supported by the evidence. The findings on lifting and carrying were well within the physical therapists' findings, and together with Dr. Fluter's opinion that Plaintiff could stand or walk for four hours a day, the ALJ's finding on walking was also supported by substantial evidence. The nonexertional postural and environmental restrictions were similarly supported by substantial evidence.
Plaintiff, nevertheless, cites SSR 96-8p and claims the ALJ failed to narrate how the evidence supports each individual finding. The Court agrees that the ALJ summarized the medical and non-medical evidence in places, but the Court finds that the ALJ's discussion was sufficient to allow a meaningful review in this case. The ALJ identified the relevant medical sources, he discussed the reasons why he found them credible or not, and he then incorporated his discussion into the analysis of Plaintiffs credibility by reference. The Court's duty is to examine the ALJ's conclusion in light of the record as a whole, and having done this the Court finds substantial evidence that the Defendant carried her step-five burden to show Plaintiff can perform other work existing in significant numbers the national economy.
IT IS THEREFORE ORDERED that the Plaintiffs Social Security Brief (Doc. 11), which the Court shall construe as a motion for judgment on the pleadings, is DENIED. The decision of the Defendant denying benefits to Plaintiff is AFFIRMED, and the Complaint (Doc. 1) is DISMISSED.
SO ORDERED.