Opinion
Case No. 02-2181-JWL
March 5, 2003.
MEMORANDUM AND ORDER
Plaintiff Herbert I. Reimers brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the decision of defendant, the Commissioner of Social Security, to deny his application for a period of disability and disability insurance benefits under Title II of the Social Security Act. According to plaintiff, defendant incorrectly evaluated plaintiff's credibility, improperly disregarded the opinion of plaintiff's treating physician, and failed to consider the combined effect of plaintiff's several impairments. As explained in more detail below, the court rejects each of plaintiff's arguments and affirms defendant's decision.
I. Procedural Background
On November 20, 1998, plaintiff filed his application for a period of disability and disability insurance benefits, claiming disability since May 2, 1995 due to vision problems, back problems, depression and hepatitis B. The application was denied both initially and upon reconsideration. At plaintiff's request, an administrative law judge ("ALJ") held a hearing on July 31, 2001, at which both plaintiff and his counsel were present. On August 29, 2001, the ALJ rendered a decision in which he determined that plaintiff was not under a disability at any time through December 31, 1997, the date that plaintiff's insured status expired. After the ALJ's unfavorable decision, plaintiff requested review by the Appeals Council. The Appeals Council denied plaintiff's request for review on February 20, 2002, rendering the ALJ's decision the final decision of defendant.
II. Standard of Review
Judicial review under 42 U.S.C. § 405(g) is limited to whether defendant's decision is supported by substantial evidence in the record as a whole and whether defendant applied the correct legal standards. See White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001) (citing Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994)). The Tenth Circuit has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Castellano, 26 F.3d at 1028). In the course of its review, the court may not reweigh the evidence or substitute its judgment for that of defendant. Id.
III. Relevant Framework for Analyzing Claim of Disability and the ALJ's Findings
"Disability" is defined in the Social Security Act as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . . ." Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (quoting 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A) (1982)). The Social Security Act further provides that an individual "shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . ." Id. (quoting 42 U.S.C. § 423(d)(2)(A), 1382c(a)(3)(B) (1982 Supp. III 1985)).
The Social Security Administration has established a five-step sequential evaluation process for determining whether a claimant is disabled, see id. (citing 20 C.F.R. § 404.1520, 416.920 (1986)), and the ALJ in this case followed the five-step process. If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary. Id. Step one determines whether the claimant is presently engaged in substantial gainful activity. Id. If he is, disability benefits are denied. Id. If he is not, the decision maker must proceed to the second step. Id. Here, the ALJ determined that Mr. Reimers was not engaged in substantial gainful activity and, thus, properly proceeded to the second step.
The second step of the evaluation process involves a determination of whether "the claimant has a medically severe impairment or combination of impairments." Id. (quoting Bowen v. Yuckert, 107 S.Ct. 2287, 2291 (1987)). This determination is governed by certain "severity regulations," is based on medical factors alone, and, consequently, does not include consideration of such vocational factors as age, education, and work experience. Id. (citing 20 C.F.R. § 404.1520(c), 416.920(c) (1986)). Pursuant to the severity regulations, the claimant must make a threshold showing that his medically determinable impairment or combination of impairments significantly limits his ability to do basic work activities. Id. at 750-51 (citing 20 C.F.R. § 404.1521(b), 416.921(b) (1986)). If the claimant is unable to show that his impairments would have more than a minimal effect on his ability to do basic work activities, he is not eligible for disability benefits. Id. at 751. If, on the other hand, the claimant presents medical evidence and makes the de minimis showing of medical severity, the decision maker proceeds to step three. Id. The ALJ in this case concluded that Mr. Reimers' physical impairments, including optic atrophy, spinal stenosis and asymptomatic hepatitis B, were severe and, thus, the ALJ proceeded to step three.
The ALJ concluded that Mr. Reimers did not have any severe mental impairment prior to December 31, 1997 because Mr. Reimers' allegation that he suffered from depression prior to December 31, 1997 was not supported by any medical evidence of record.
In step three, the ALJ "determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity." Id. (citing 20 C.F.R. § 404.1520(d), 416.920(d) (1986); Bowen v. Yuckert, 107 S.Ct. at 2291). If the impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to benefits. Id. If not, the evaluation proceeds to the fourth step, where the claimant must show that the "impairment prevents [him] from performing work he has performed in the past." Id. (citing 20 C.F.R. § 404.1520(e), 416.920(e) (1986); Bowen v. Yuckert, 107 S.Ct. at 2291). If the claimant is able to perform his previous work, he is not disabled. Id. With respect to the third step of the process in this case, the ALJ determined that Mr. Reimers' impairments were not listed or medically equivalent to those listed in the relevant regulations. At the fourth step, the ALJ concluded that Mr. Reimers was unable to perform past relevant work.
Thus, the ALJ proceeded to the fifth and final step of the sequential evaluation process-determining whether the claimant has the residual functional capacity (RFC) "to perform other work in the national economy in view of his age, education, and work experience." See id. (quoting Bowen v. Yuckert, 107 S.Ct. at 2291). At that point, the ALJ properly shifted the burden of proof to defendant to establish that Mr. Reimers retains the capacity "to perform an alternative work activity and that this specific type of job exists in the national economy." See id. (citations omitted); accord White, 271 F.3d at 1258 (at fifth step, burden of proof shifts to Commissioner to show that claimant retains the functional capacity to do specific jobs). At this step, the ALJ concluded that Mr. Reimers was not disabled, a conclusion that rested on a finding that even though Mr. Reimers suffered from several impairments through the date he was last insured for disability benefits, he nonetheless could have made, prior to the expiration of his insured status, a vocational adjustment to work which existed in significant numbers in the local and national economies.
IV. Analysis of Plaintiff's Specific Arguments
In his motion, plaintiff contends that the ALJ made three errors in reaching his decision — he improperly evaluated plaintiff's subjective complaints concerning plaintiff's impairments and essentially found plaintiff's testimony on those subjects lacked credibility; he improperly disregarded the opinion of Dr. Gandolfo, plaintiff's treating physician; and he failed to consider the combined effect of plaintiff's several impairments. The court addresses each of these arguments in turn.
A. Plaintiff's Subjective Complaints
Plaintiff asserts that the ALJ committed error by disregarding plaintiff's subjective complaints concerning his back pain and vision problems. Under the Tenth Circuit's decision in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987), the ALJ must decide whether a claimant's subjective claims of pain are credible, considering such factors as a claimant's persistent attempts to find relief for his pain and his willingness to try any treatment prescribed, regular use of crutches or a cane, regular contact with a doctor, the claimant's daily activities, and the dosage, effectiveness, and side effects of medication. Barnett v. Apfel, 231 F.3d 687 (10th Cir. 2000) (citing Luna, 834 F.2d at 165-66). Moreover, the ALJ must give specific reasons why he or she rejects a claimant's subjective complaints of pain. White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001) (citing Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995)). Ultimately, credibility determinations "are peculiarly the province of the finder of fact," and should not be upset if supported by substantial evidence. Id. (citing Kepler, 68 F.3d at 390-91). With respect to his back pain, plaintiff testified before the ALJ that his back pain constantly radiates into his legs and that the pain is aggravated by remaining seated for more than 20 minutes or walking more than one block. He further testified that his back pain was never completely relieved despite taking Tylenol and Naprosyn in 1997 and that, throughout the day, he lies down to relieve some of the pain. The ALJ found that plaintiff was exaggerating his symptoms and that his subjective complaints concerning his back pain were not credible for several reasons, including the fact that the medical evidence concerning plaintiff's back problems was minimal, that plaintiff did not complain of disabling back pain to any treating or examining physician prior to the expiration of his insured status and that the ALJ had observed plaintiff at the hearing and noted that he "sat for 20 to 30 minutes at a time without difficulty." In addition, the ALJ found it significant that plaintiff did not participate in physical therapy and did not participate in an exercise program recommended by his physician. The ALJ also noted that plaintiff's daily activities were inconsistent with the extent of the pain he alleged. In that regard, plaintiff testified that, during the insured period, he did his laundry, used a microwave to prepare meals and used a riding lawnmower to mow his one-acre yard. Finally, the ALJ recalled plaintiff's testimony in which he stated that he did not experience any side effects from his medication and noted that there was no indication in the record that plaintiff's medications were not efficacious when taken.
Clearly, the ALJ gave specific reasons for discounting plaintiff's subjective complaints of pain and those reasons are based on appropriate factors set forth in Luna. As such, there was no error in discounting plaintiff's testimony concerning the nature and extent of his back pain. See White, 271 F.3d at 1261-62 (ALJ adequately supported his negative credibility determination regarding claimant where he noted that the claimant sat comfortably during most of the hearing and found the claimant's testimony inconsistent with her own account of her daily activities); Barnett, 231 F.3d at 690 (ALJ relied on appropriate factors and committed no error with respect to his assessment of plaintiff's subjective complaints of pain where ALJ noted the paucity of objective medical findings in the record, the claimant's failure to report disabling pain to her physicians, the claimant's lack of obvious discomfort at the hearing and the fact that the claimant had not been treated by her physicians in the nine months prior to the hearing).
With respect to his vision problems, plaintiff testified at the hearing that he began to experience a decrease in vision in 1991, that he has difficulty distinguishing faces and people on television, that he cannot use a computer because his eyes hurt, and that he does not watch much television because his eyes become tired. He further testified that if he reads anywhere from a paragraph to a full page, the entire page goes blank. He testified that he has to rest his eyes for 15 minutes after watching 30 minutes of television. Plaintiff also complained of blurred vision in both eyes and stated that he did not renew his driver's license because he could not do so without going to a doctor first (and the visit to the doctor would be too costly) but he was not sure he could pass the test anyway because of his vision problems. The ALJ concluded that plaintiff's testimony concerning the nature and extent of his vision problems was exaggerated and inconsistent with the objective medical evidence in the record. Specifically, the ALJ highlighted that plaintiff's treating physician stated that with the use of visual aids, plaintiff would be able to obtain a driver's license, watch television, go to the grocery store or watch ball games. In other words, plaintiff's treating physician concluded that plaintiff's vision was correctable to functional levels that would allow him to perform routine daily activities. Plaintiff's medical records further indicated that a significant number of tests pertaining to plaintiff's vision performed within the relevant time frame were within normal limits and that plaintiff needed a trifocal lense for general use, a 3x bioptic for driving and a 4x short focusing telescope. Because the ALJ relied on appropriate factors in rejecting plaintiff's testimony concerning the severity of his vision problems, there was no error.
In sum, because the record reveals substantial evidence to support the ALJ's credibility assessment and the reasons underlying that assessment, the court will not disturb the ALJ's findings.
B. Disregarding Dr. Gandolfo's Testimony
In his decision, the ALJ expressly disregarded the opinion of Dr. Gandolfo, plaintiff's treating physician. Dr. Gandolfo's opinion was in the form of an RFC assessment completed in February 2001 with respect to plaintiff's mental state in which Dr. Gandolfo ultimately concluded that, based upon plaintiff's mental state, plaintiff would have a poor ability to function in multiple areas, including the ability to follow work rules, the ability to interact with supervisors, and the ability to maintain attention and concentration. As explained by the ALJ, he gave "little weight" to Dr. Gandolfo's opinion on the grounds that the opinion was "conclusory, was made more than three years after the claimant's date last insured and is inconsistent with the claimant's lack of treatment and the clinical signs and findings of treating and examining medical professionals prior to the date last insured."
The ALJ must give "controlling weight" to the opinion of a treating physician, provided that opinion is "well-supported and is not inconsistent with other substantial evidence." White, 271 F.2d at 1259 (quoting 20 C.F.R. § 404.1527(d)(2)). According to the Tenth Circuit, a treating physician's opinion is not dispositive on the ultimate issue of disability. Id. (citing Castellano, 26 F.3d at 1029). In addition to its consistency with other evidence, the court examines a treating physician's opinion with several factors in mind, including the length of the treatment relationship, the frequency of examination, and the extent to which the opinion is supported by objective medical evidence. Id. (citing 20 C.F.R. § 404.1527(d)(2)). In short, the ALJ cannot disregard a treating physician's opinion that a claimant is disabled without giving legitimate and specific reasons for doing so. See Goatcher v. United States Dep't of Health Human Servs., 52 F.3d 288, 290 (10th Cir. 1995) (citing Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987)).
The court finds that the ALJ in this case set forth specific and legitimate reasons for discounting Dr. Gandolfo's opinion. As noted by the ALJ, Dr. Gandolfo's RFC assessment was completed more than three years after the expiration of Mr. Reimers' insured status. Significantly, Dr. Gandolfo's assessment does not purport to assess plaintiff's mental condition at any time other than the time it was completed. Stated another way, Dr. Gandolfo did not submit an opinion that Mr. Reimers was actually disabled at any time prior to the expiration of Mr. Reimers' insured status. Moreover, the ALJ found no evidence supporting Mr. Reimers' allegation that he suffered from depression prior to the expiration of his insured status. Indeed, plaintiff first received treatment for depression in December 1998 — one year after the expiration of his insured status.
While plaintiff sought psychiatric treatment on one occasion prior to the expiration of his insured status, there is no evidence that the treatment sought was related to depression. Rather, plaintiff was diagnosed with Adjustment Disorder with anxiety.
In rejecting Dr. Gandolfo's opinion, it is apparent that the ALJ recognized the need for some evidence of an actual disability during the period that Mr. Reimers maintained insured status. See Flint v. Sullivan, 951 F.2d 264, 267 (10th Cir. 1991). As noted above, Dr. Gandolfo did not purport to render an opinion regarding Mr. Reimers' mental state during the relevant time period. Plaintiff concedes that Dr. Gandolfo's opinion relates solely to a time period long after the expiration of plaintiff's insured status but contends that Dr. Gandolfo's opinion is nonetheless relevant in that it bears upon the severity of plaintiff's impairment during the relevant time period. This general principle finds support in Tenth Circuit precedent. See Baca v. Dep't of Health Human Servs., 5 F.3d 476, 479 (10th Cir. 1993) ("[E]vidence bearing upon an applicant's condition subsequent to the date upon which the earning requirement was last met is pertinent evidence in that it may disclose the severity and continuity of impairments existing before the earning requirement date or may identify additional impairments which could reasonably be presumed to have been present and to have imposed limitations as of the earning requirement date.").
The principle, however, has no application where, as here, there is simply no medical evidence of the existence of a disabling impairment during the relevant time period. Stated another way, evidence bearing on Mr. Reimers' mental condition after the expiration of his insured status is insufficient, in and of itself, to establish the existence of a disabling mental impairment during the relevant time period. See Adams v. Chater, 93 F.3d 712, 714-15 (10th Cir. 1996) (ALJ properly rejected opinions of treating physician who made diagnosis five years after expiration of insured period; physician did not submit opinion that claimant was actually disabled during relevant time period and no other evidence in the record suggested that claimant was disabled during the relevant period); Flint, 951 F.2d at 267 (ALJ properly disregarded evidence of diagnosis made ten years after expiration of insured status where that evidence was not substantiated by evidence in the record pertinent to the insured period and no evidence in the record suggested that the claimant experienced disabling impairment during the insured period).
In short, because Dr. Gandolfo did not render an opinion regarding plaintiff's mental state during the relevant time period and because there is no medical evidence in the record to support the conclusion that plaintiff suffered from depression during the relevant time period, the ALJ did not err in rejecting Dr. Gandolfo's mental RFC made in February 2001.
C. Considering the Combined Effect of Mr. Reimers' Impairments
Finally, Mr. Reimers argues that the ALJ failed to analyze the extent to which the combined effect of Mr. Reimers' impairments limited his ability to work. As an initial matter, the court notes that plaintiff fails to offer in his papers any support for his argument that the ALJ did not consider the combined effect of plaintiff's impairments. Indeed, plaintiff's "argument" with respect to this issue consists of only one sentence. In any event, plaintiff is correct that the ALJ is required to "consider the combined effects of impairments that might not be severe individually, but which in combination may constitute a severe medical disability." See Hargis v. Sullivan, 945 F.2d 1482, 1491 (10th Cir. 1991) (citing 42 U.S.C. § 423(d)(2)(C) (1988)); see also 20 C.F.R. § 404.1523. Nonetheless, the court rejects plaintiff's argument because the ALJ clearly considered the combined effect of plaintiff's impairments. Significantly, the ALJ accounted for each of plaintiff's impairments (and the effects of those impairments) when analyzing plaintiff's capabilities:
Substantial evidence persuades the Administrative Law Judge that claimant had the following severe impairments prior to the date last insured: optic atrophy, spinal stenosis, and asymptomatic hepatitis B. From the alleged onset date the claimant's medically determinable impairments were of such severity to prevent him from lifting more than 20 pounds maximum occasionally and 10 pound[s] frequently, standing or walking more than two hours in eight, sitting no more than six hours in eight with regular breaks, climbing ropes, ladders or scaffolds, engaging in repetitive stooping, twisting, squatting, kneeling or crawling, climbing ramps or stairs more than occasionally, being exposed to concentrated heat, humidity or cold, working at unprotected heights or around dangerous moving machinery, engaging in repetitive reading even though he has 20/40 corrected vision. He should be limited [to] simple, routine, repetitive work due to his complaints of pain and impact upon his attention and concentration.
This paragraph shows that the ALJ, at a minimum, considered the effects and symptoms of plaintiff's back problems and vision problems when assessing plaintiff's work abilities. Plaintiff's argument, then, lacks merit.
In sum, having carefully reviewed the record in this case and having considered plaintiff's arguments in light of the record, the court concludes that substantial evidence supports defendant's decision to deny Mr. Reimers' application for disability benefits and that no deviation from established legal standards occurred.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff's motion for judgment (doc. #10) is denied and defendant's decision denying plaintiff disability benefits is affirmed.
IT IS SO ORDERED.