Opinion
CIVIL NO. 1:01cv447
August 15, 2002
ORDER
This matter is before the court for judicial review of a final decision of the defendant Commissioner of Social Security Administration denying plaintiff's application for Disability Insurance Benefits (DIB) as provided for in the Social Security Act. 42 U.S.C. § 416(i); 42 U.S.C. § 423(d). Section 205(g) of the Act provides, inter alia, "[a]s part of his answer, the [Commissioner] shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the case for a rehearing." It also provides, "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g).
Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting.
The law provides that an applicant for disability insurance benefits must establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months . . . ." 42 U.S.C. § 416(i)(1); 42 U.S.C. § 423(d)(1)(A). A physical or mental impairment is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). It is not enough for plaintiff to establish that an impairment exists. It must be shown that the impairment is severe enough to preclude the plaintiff from engaging in substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (7th Cir. 1962), cert. denied, 372 U.S. 945 (1963); Garcia v. Califano, 463 F. Supp. 1098 (N.D.Ill. 1979). It is well established that the burden of proving entitlement to disability insurance benefits is on the plaintiff. See Jeralds v. Richardson, 445 F.2d 36 (7th Cir. 1971);Kutchman v. Cohen, 425 F.2d 20 (7th Cir. 1970).
Given the foregoing framework, "[t]he question before [this court] is whether the record as a whole contains substantial evidence to support the [Commissioner's] findings." Garfield v. Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) citing Whitney v. Schweiker, 695 F.2d 784, 786 (7th Cir. 1982); 42 U.S.C. § 405(g). "Substantial evidence is defined as `more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984) quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1410, 1427 (1971); see Allen v. Weinberger, 552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed, 42 U.S.C. § 405(g), unless there has been an error of law." Garfield, supra at 607; see also Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).
In the present matter, after consideration of the entire record, the Administrative Law Judge ("ALJ") made the following findings:
1. The claimant met the disability insured status requirements of the Act on February 19, 1997, the date the claimant stated she became unable to work, and has acquired sufficient quarters of coverage to remain insured through December 31, 2002.
2. The claimant has not engaged in substantial gainful activity since February 19, 1997.
3. The medical evidence establishes that the claimant has chronic fatigue and anxiety, impairments which are severe but which do not meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's statements concerning her impairments and their impact on her ability to work on the date her insured status expired are not entirely credible.
5. The claimant has the residual functional capacity to perform light work which allows an option to sit or involves primarily sitting tasks. She is limited to simple and routine tasks which allow for brief lapses in attention.
6. The claimant is unable to perform her past relevant work as a home health aide, nurses aide, bus person, or housekeeper.
7. The claimant is 37 years old, which is defined as a "younger individual."
8. The claimant has a limited education.
9. The claimant has semi-skilled work experience but has acquired no transferable work skills.
10. Based on an exertional capacity for light work, and the claimant's age, educational background, and work experience, Section 404.1569 and Rule 202.17, Table 2, Appendix 2, Subpart P, Regulations No. 4, would direct a conclusion of "not disabled."
11. Although the claimant was unable to perform the full range of light work she is capable of making an adjustment to work which exists in significant numbers in the national economy. Such work includes employment as a small parts assembly (1,640 jobs), packaging (329 jobs), and parking lot attendant (107 jobs). A finding of "not disabled' is, therefore, reached within the framework of the above-cited Rule.
12. The claimant was not under a disability, as defined in the Social Security Act, at any time through the date of this decision.
(Tr. 22-23).
Based upon these findings, the ALJ determined that the plaintiff was not entitled to disability insurance benefits. The ALJ's decision became the final agency decision when the Appeals Council denied review. This appeal followed.
The plaintiff filed her opening brief on April 16, 2002. On June 27, 2002, the defendant filed a memorandum in support of the Commissioner's decision, and on July 16, 2002, the plaintiff filed her reply. Upon full review of the record in this cause, this court is of the view that the decision must be affirmed.
A five step test has been established to determine whether a claimant is disabled. See Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988);Bowen v. Yuckert, 107 S.Ct. 2287, 2290-91 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test as follows:
The following steps are addressed in order: (1) Is the claimant presently unemployed? (2) Is the claimant's impairment "severe"? (3) Does the impairment meet or exceed one of a list of specific impairments? (4) Is the claimant unable to perform his or her former occupation? (5) Is the claimant unable to perform any other work within the economy? An affirmative answer leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than step 3, stops the inquiry and leads to a determination that the claimant is not disabled.Nelson v. Bowen, 855 F.2d 503, 504 n. 2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160, 162 n. 2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). From the nature of the ALJ's decision to deny benefits, it is clear that step five was the determinative inquiry.
The plaintiff initially applied for benefits on March 21, 1997, alleging an onset date of disability of February 19, 1997. The plaintiff's application was denied upon initial consideration, and it was not appealed. The plaintiff then filed a new application on December 16, 1997. This claim was denied initially and upon reconsideration. On March 3, 1999, a hearing was held before ALJ Ann C. Grover. The plaintiff and her husband, Ken Snyder, testified at the hearing on the plaintiff's behalf. Dr. Leonard Fisher, a Vocational Expert (VE) also testified. In a decision dated October 27, 1999, the plaintiff was denied Disability Insurance Benefits. On October 10, 2001, the Appeals Council upheld the decision of the ALJ, which became the final decision of the Commissioner.
The plaintiff was 37 years old at the time of her alleged onset of disability. The plaintiff has a ninth grade education and past relevant work experience as a home health aide, nurse's aide, housekeeper, and busboy. The plaintiff's alleged impairments are chronic fatigue syndrome (CFS), and panic disorder without agoraphobia. A review of the plaintiff's medical records follows.
The plaintiff began seeing Dr. Bhupendra K. Shah after an emergency room visit on February 19, 1997. The plaintiff reported that she experienced weak legs after sitting at a concert, and she also felt a tingling from the neck down when bending her head forward. The plaintiff also stated that her right leg became numb when sleeping on it, she had some blurry vision, as well as difficulty using her right arm and hand.
After a neurological evaluation, Dr. Shah opined that the plaintiff's history was very strongly suggestive of a possible demylinating disorder because her history indicated Lhermitte's sign. Dr. Shah recommended an MRI scan of the head and cervical spin and told the plaintiff that she should not drive.
Lhermitte's sign consists of twinges resembling mild electric shock felt by the patient in various parts of the body, especially in the back and in the arms. It is elicited when the patient flexes or bends his head forward suddenly. It is observed in cases of multiple sclerosis and irritation or thickening of the meninges (the membranes covering the brain and spinal cord), and other demyelinating diseases (i.e., diseases in which the myelin covering of the nerves is lost). J.E. Schmidt, M.D.,Schmidt's Attorneys' Dictionary of Medicine, Volume 3 at L-72 (1994).
The plaintiff returned to Dr. Shah on March 11, 1997. Dr. Shah noted that an MRI scan of the brain evidenced a few pinpoint rounded areas of increased signal in the white matter, and suggested the possibility of multiple sclerosis. Accordingly, Dr. Shah recommended a spinal tap.
On April 7, 1997, the plaintiff reported that her legs felt tired all the time, and she felt weak. The plaintiff also reported that she felt dizzy and uncoordinated, and that her hands frequently felt numb while peeling potatoes, writing letters, and blow drying her hair. Dr. Shah recommended an EMG and nerve conduction study of the upper extremities to look into the possibility of carpal tunnel syndrome. These tests were performed on April 14, 1997, and they were within normal limits.
On May 30, 1997, the plaintiff continued to have tingling all over her body, and she had some burning pain involving her lower back, legs, and left arm. Dr. Shah recommended a urological evaluation, and a visual evoked response study. On June 3, 1997, the visual evoked response study was performed which was essentially within normal limits.
On July 28, 1997, the plaintiff reported to Dr. Shah that, after returning to work, she had the same symptoms of dizziness and tremors of her body, and she felt tired all of the time. The plaintiff reported that she had been given an off-work slip by Dr. Harter. Dr. Shah thought that the plaintiff's diagnosis was very unclear, and agreed with Dr. Harter's impression that the plaintiff may have fibromyalgia with some elements of anxiety and tension.
On August 25, 1997, the plaintiff reported doing fair, with no change in her condition. Dr. Shah recommended a myelogram and a repeat CFS study. On September 16, 1997, the plaintiff reported that she was doing about the same and that she was going to Dr. Ronald H. Scheeringa for an internal medicine evaluation. Dr. Shah reported that the spinal fluid examination, collagen vascular tests and myelogram were all normal.
The plaintiff began seeing Dr. Scheeringa in September 1997 regarding symptoms of dizziness and extreme tiredness. There had also been a significant increase in her weight from 120 pounds to 149 pounds. The plaintiff saw Dr. Scheeringa again in October 1997, and he noted that all of the tests performed since her last visit were normal. Dr. Scheeringa opined that the plaintiff might have CFS, and that she was showing some gradual improvement. On December 2, 1997, Dr. Scheeringa noted that the plaintiff's symptoms had been variable over the past two months. Dr. Scheeringa explained to the plaintiff that he could find no serious disorder but that she could be suffering from CFS. Dr. Scheeringa suggested that the plaintiff try returning to work part-time, and if she tolerated it, to increase her activity.
Dr. Ungemach examined the plaintiff at the request of the Social Security Administration. Dr. Ungemach reported that he found no evidence of fatigue during his exam, and concluded that there was no objective evidence that the plaintiff had any organic disease or that she had diabetes.
The plaintiff saw Dr. Harter on February 20, 1997, stating that she was weak and fatigued. The plaintiff described a tingling sensation running in waves along the lower extremities. On February 27, 1997, the plaintiff saw Dr. Harter complaining of dizziness. Dr. Harter thought that the plaintiff exhibited symptoms of anxiousness or panic disorder, but he did not have a strong sense of physiologic concerns. A pulmonary function test was performed on July 28, 1997, and the results were normal.
On December 4, 1997, the plaintiff reported to Dr. Harter that she did not feel much better. Dr. Harter discussed CFS, and noted that there was no special follow-up required. On February 5, 1998, the plaintiff reported difficulty sleeping, but on examination there were no particular findings such as trigger points. Dr. Harter prescribed Restoril for the sleep problems. The plaintiff related to Dr. Harter how a friend was experiencing agoraphobia and panic attacks, and reported that she may have had a mild panic attack at the bank recently but was not afraid of returning to the bank.
On February 17, 1998, the plaintiff saw Dr. Harter for a follow-up. On physical examination, the plaintiff had a lipoma approximately three inches across interacting with the muscular tissue. On August 4, 1998, the plaintiff reported soreness through her right kneecap. The plaintiff was also having a little more difficulty at night, and was discouraged that she kept gaining weight and was now at 178 pounds. The plaintiff was referred to Dr. Trier.
At the request of the plaintiff's attorney, Dr. Harter completed a "Chronic Fatigue Syndrome Residual Functional Capacity Questionnaire". Dr. Harter indicted that the plaintiff suffered from CFS, and had unexplained persistent or relapse in chronic fatigue that was of a newer definite onset and resulted in substantial reduction in her previous activities. Dr. Harter further indicated that other causes had been excluded and that the plaintiff had several significant CFS symptoms including a self-reported impairment in short-term memory or concentration, muscle pain, multiple joint pain without joint swelling or redness, unrefreshing sleep, and post-exertional malaise lasting more than 24 hours. Dr. Harter indicated that the plaintiff's fatigue and other symptoms were severe enough to interfere with attention and concentration for even simple repetitive tasks on a frequent basis, and limited lifting to less than ten pounds frequently, and would require her to miss work more than three times a month.
Dr. Donald J. Kramer performed a psychological evaluation of the plaintiff on April 7, 1998. The plaintiff reported some problems with short-term memory, concentration, and attention which varied depending on the level of her physical symptoms. The plaintiff reported that her depression and panic disorder started about the time that she developed CFS. The plaintiff reported no work difficulties until the development of CFS, and stated that she was primarily impaired by her physical problems but also has some emotional and cognitive difficulties. At the time the plaintiff had not received any psychological counseling, but had been on antidepressant medications through her family doctor. On mental status examination the plaintiff's affect was normal, and she showed no acute emotional distress, but was rather anxious during the interview and testing session. The plaintiff showed no significant cognitive difficulties during the interview, but her concentration and attention were somewhat weak. Dr. Kramer opined that her anxiety might have had some impact on her abilities in terms of concentration and mathematical reasoning. The plaintiff reported that she was socially avoidant and anxious, and had depressive symptoms such as low self-esteem, occasional tearfulness, some problems with motivation and weight gain, some sleep disturbance, and lowered tolerance of frustration and increased irritability.
Dr. Kramer administered the Wechsler Memory Scale-III. Most of the plaintiff's sub-test scores were at or near the average range which showed no particular area of short-term memory impairment, but her working memory score was in the borderline range. Dr. Kramer opined that this weak performance was probably due to the plaintiff's test-taking anxiety. Dr. Kramer further opined that the plaintiff's memory problems were most probably caused by her chronic anxiety and emotional distress which interferes with her concentration. Dr. Kramer also opined that the plaintiff's short-term memory potential is average, and her reported cognitive and memory problems were likely due to a combination of her high anxiety and physical difficulties, and fatigue associated with her physical problems. Dr. Kramer stated that individuals with the plaintiff's test scores "usually have no difficulty functioning independently or handling their own basic needs" and are typically able to function in many competitive employment situations without difficulty.
Dr. Kramer's diagnosis was panic disorder with agoraphobia and depressive disorder, not otherwise specified. Dr. Kramer recommended that the plaintiff could benefit from psychological treatment as her potential for employment appeared to be fairly good if she could resolve her current psychiatric difficulties.
The plaintiff saw Dr. Herbert Trier on August 7, 1998, for symptoms of anxiety. Dr. Trier completed a "Mental Impairment Questionnaire" at the request of the plaintiff's attorney. Dr. Trier diagnosed panic disorder without agoraphobia and gave the plaintiff a Global Assessment of Function of 32. Dr. Trier indicated that the plaintiff's signs and symptoms included poor memory, sleep disturbance, personality change, mood disturbance, emotional lability, decreased energy, generalized persistent anxiety, hostility and irritability, feelings of guilt/worthlessness, appetite disturbance with weight change, time or place disorientation, social withdrawal or isolation, recurrent panic attacks, anhedonia or pervasive loss of interests, psychomotor agitation or retardation, and difficulty thinking or concentrating. Dr. Trier treated the plaintiff with psychotropic medication and counseling to adapt to losses in functioning. Dr. Trier's prognosis was that the plaintiff's condition was not anticipated to significantly improve.
The plaintiff saw Dr. Ajay Gupta on May 14, 1997 on referral from Dr. Shah for evaluation of possible MS. Dr. Gupta noted that an MRI of the brain showed two areas of pinpoint signal intensity, one each in the right and left, atypical for demyelinating disease. Dr. Gupta's impression was that the plaintiff had multiple neurologic symptoms of unknown etiology, and a demyelinating disease was a prime consideration. However, the neurologic exam failed to show any definite evidence of unequivocal neurologic abnormality. Dr. Gupta also noted that a urologic evaluation should be considered.
The plaintiff was seen by Dr. Paul R. Eber in June of 1997 and was evaluated for urinary symptoms with occasional urgency and urge incontinence as well as slow stream and difficulty feeling like she is emptying. On July 14, 1997, a urodynamics was performed with CMG, EMG, and a pressure flow study that showed the plaintiff had a neurogenic bladder.
Analysis
The Social Security Act defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A). The agency has promulgated regulations that set forth a five-step sequential process for analyzing disability claims. 20 C.F.R. § 404.1520, 416.920. A claimant has the joint burdens of production and persuasion through at least step four, where the individual's residual functional capacity (RFC) is determined.Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987); 20 C.F.R. § 404.1545, 416.945. At step five the Commissioner bears the burden of proving that there are jobs in the national economy that the plaintiff can perform.Herron v. Shalala, 19 F.3d 329, 333 n. 18 (7th Cir. 1994). In the present case, the ALJ found that the plaintiff retained the ability to perform a significant number of jobs in the national economy.
The agency's final decision is subject to review pursuant to 42 U.S.C. § 405(g), which provides that the agency findings "as to any fact, if supported by substantial evidence, shall be conclusive." "Substantial evidence is . . . such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). Furthermore, "[w]here conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or on the [Commissioner's] designate, the ALJ)." Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987) (citations omitted). This court must accept the ALJ's findings if they are supported by substantial evidence, and may not substitute its judgment for that of the ALJ.Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir. 1986).
In her decision, the ALJ found that the plaintiff had not engaged in substantial gainful activity between her alleged onset date and her date last insured. At step two, the ALJ determined that the plaintiff had severe impairments, but found, at step three, that she did not have an impairment or combination of impairments that met or equaled any impairment in the Listing of Impairments. At step four, the ALJ determined that the plaintiff did not retain the residual functional capacity to perform her past relevant work. The ALJ also determined that the plaintiff's testimony was not entirely credible. At step five, the ALJ found that the plaintiff could perform a significant number of jobs in the national economy, and thus was not disabled.
The plaintiff first argues that there is no accurate and logical bridge between the evidence and the ALJ's conclusion that the plaintiff could work on a sustained basis. The ALJ concluded that the plaintiff's impairments did not preclude her from performing light work with a sit/stand option, which primarily involved sitting, involved no more than simple, routine tasks, and allowed for brief lapses in attention. (Tr. 22).
The plaintiff points out that she testified that doing simple household chores or going to the grocery store leaves her very tired, and that she rests about three days a week in the morning and also rests for an hour in the afternoon. The plaintiff further points out that her husband's testimony supports her testimony. With regard to the medical evidence, the plaintiff claims that the ALJ ignored significant portions of Dr. Hailer's report wherein he opined that the plaintiff would miss work more than three times a month due to her medical condition. Further, both Dr. Harter and Dr. Trier opined that the plaintiff had difficulties with attention and concentration. The plaintiff disputes the ALJ's claim that her ability to drive substantiates the inference that she is able to work. The plaintiff insists that she has significantly limited her driving activity because of her illness and does not like to drive much because of her nerves and dizziness. The plaintiff also claims that the ALJ misconstrued Dr. Kramer's report regarding her Wechsler Memory Scale-III scores. The plaintiff acknowledges that Dr. Kramer opined that an individual with the plaintiff's scores can function in competitive employment situations, but points out that she also has a panic disorder which was diagnosed by Dr. Kramer and Dr. Trier. Further, Dr. Kramer opined in his summary that the plaintiff's report indicates that her symptoms would significantly limit her social functioning and her ability to function independently.
The Commissioner, in response, argues that the ALJ's finding that the plaintiff retained the RFC to perform light work with a sit/stand option, which primarily involved sitting, was substantially supported by the record. The Commissioner points out that the plaintiff testified that she could stand fifteen to twenty minutes, walk one block, and sit two hours at a time. Additionally, Dr. Shah, in March of 1997, observed that the plaintiff had normal upper and lower extremity strength, sensation, muscle coordination, and gait. One month later, Dr. Shah observed that the plaintiff had a normal ability to perform fine motor movements, like buttoning buttons, tying shoes, and writing, as well as a normal ability to ambulate. Further, diagnostic testing, including a cervical spine MRI, cervical spine CT scan, EEG, and visual evoked response study, were all unremarkable. In December 1997, Dr. Scheeringa found no serious disorder but thought the plaintiff might be suffering from CFS, and suggested that she try to return to work part-time and increase her activity as tolerated. Dr. Ungemach's findings in January 1998 were also within normal limits, including the plaintiff's gait and station, ability to walk on he heels and toes, squat and arise, arm strength, and dexterity. Dr. Ungemach summarized that he observed no evidence of fatigue during the exam, and no disease was found except for fractured teeth. The Commissioner contends that such evidence does not suggest total disability, but supports the ALJ's conclusion that the plaintiff could perform light work.
This court holds that substantial evidence supports the ALJ's RFC finding. Nearly all of the plaintiff's evidence of CFS is her own testimony or self-reports to her doctors. While the plaintiff claims that the MRI which was negative for MS was a positive symptom of CFS, one symptom hardly supports the existence of a disabling disease. Additionally, even the plaintiff's treating physician, Dr. Scheeringa, suggested that the plaintiff could work and increase her activity until full-time work was achievable. (Tr. 268). The court is mindful of the fact that no pathognomonic signs or diagnostic tests for CFS exist at this time, making it difficult for a claimant to support a claim of CFS. Nevertheless, the Social Security Act and supporting Regulations require that an alleged disabling condition be supported by medical evidence and laboratory tests. Since the plaintiff clearly possesses the ability to perform some daily activities, and since several medical reports in the record support the ALJ's conclusion that the plaintiff is able to engage in light work, the court will not disturb the ALJ's RFC finding. Although the plaintiff claims that the ALJ failed to explain why she rejected contradictory evidence, the evidence relied on by the plaintiff consisted of her own testimony at the hearing, and her reports to her doctors. As the ALJ explained, this evidence was rejected due to lack of credibility on the part of the plaintiff.
The plaintiff next argues that the ALJ failed to properly evaluate the opinions of her treating physicians, Dr. Harter and Dr. Scheeringa. The plaintiff claims that Dr. Scheeringa opined that she had CFS, and the ALJ simply ignored this finding. A review of the pertinent portion of the record shows that Dr. Scheeringa (in October 1997) did not state that the plaintiff had CFS but stated "I suspect that she has chronic fatigue syndrome, whatever that may be and whatever may cause it." (Tr. 274). Dr. Scheeringa further stated that "She certainly is showing gradual improvement, and I think it may take a considerably longer period of time for her to be back to the point where she can function in a work environment." (Tr. 274-75). There can be no doubt that it was within the discretion of the ALJ to find that Dr. Scheeringa's report did not support the plaintiff's claim that she has totally disabling CFS.
With respect Dr. Harter's opinion that the plaintiff has CFS, the ALJ noted that even though Dr. Harter diagnosed CFS (apparently based on the plaintiff's subjective complaints), he opined that the plaintiff could sit for more than 2 hours and lift and carry 10 pounds frequently. When coupled with the plaintiff's testimony that she could do some daily activities, including some housework, Dr. Harter's opinion supports the ALJ's finding that the plaintiff could perform light work. The plaintiff argues that an opinion that she could sit for two hours is not sufficient to show that she could work an 8-hour day. However, Dr. Harter did not opine that the plaintiff could only sit for two hours out of eight hours. Rather, Dr. Harter stated that the plaintiff could sit for more than two hours "continuously . . . at one time" and could also stand continuously for 10 minutes. (Tr. at 371). Thus, the ALJ could logically find that the plaintiff could work an 8-hour day by alternating between sitting and standing. In fact, the ALJ specifically found that the plaintiff could perform light work with a sit/stand option, involving primarily sitting tasks. (Tr. 22, Finding No. 5).
The plaintiff also points out that Dr. Harter opined that she would miss work more than three days a month. (Tr. 372). The plaintiff claims that, since the VE testified that a person who had to miss work once a week was not employable, Dr. Harter's opinion proves she is disabled. Again, however, Dr. Harter's opinion on this point was based on the plaintiff's prior history and not on objective findings. Thus, the ALJ was permitted to give little or no weight to this opinion. Clearly, the ALJ's finding is supported by substantial evidence in the record.
For her next argument, the plaintiff claims that the ALJ improperly evaluated and rejected the opinion of her treating psychiatrist, Dr. Herbert Trier. With respect to Dr. Trier's reports, the ALJ stated the following:
Herbert Trier, M.D., psychiatrist, reported on February 12, 1999, at the attorney's request, that the claimant initially sought treatment from him in August 1998, for symptoms of anxiety. The doctor stated that the claimant had a poor to no ability to complete a normal workday, perform at a consistent pace, respond appropriate [sic] to changes in routine work, interact appropriately with the general public, and only a fair ability to function in other areas (Exhibit 16F). This evaluation is so extreme as to indicate an individual who should be institutionalized, which she is not. This report is inconsistent with the findings of all of the other physicians and a psychologist who have examined or treated the claimant. It also appears to be based totally on the claimant's complaints and statements. Therefore, great weight will not be given to Dr. Trier's opinion of severity.
(Tr. 19).
The plaintiff argues that the ALJ's decision that the limitations are so extreme as to indicate an individual who would be institutionalized misapprehends the interplay between mental illness, adaptive behavior, and work. The plaintiff argues that she adapts by isolating herself, and that although she is not institutionalized, her functioning would significantly deteriorate if placed in a competitive work situation which would be stressful for her. The plaintiff also contends that the ALJ failed to explain why she found the opinions of Dr. Trier inconsistent with the findings of other physicians. As to the first point, the ALJ's opinion that someone with the plaintiff's evaluation should be institutionalized is simply irrelevant to the issues in the case. The point is that Dr. Trier's evaluation was extreme compared to the other evaluations of the plaintiff, and the record as a whole. For example, Dr. Kramer observed that the plaintiff demonstrated no significant cognitive difficulties, although her concentration and attention were somewhat weak at times. The plaintiff's long-term and short-term memories appeared to be intact, and on the Wechsler Memory Scale-III, the plaintiff was able to follow simple instructions adequately and remain task-oriented throughout testing. As to the second point, that the ALJ failed to indicate why Dr. Trier's opinions were inconsistent, the inconsistencies become obvious by a simple reading of the ALJ's decision. The ALJ discusses each doctor's opinion in seriatim, and notes that Dr. Trier's opinions are inconsistent, meaning that the opinions are inconsistent with the other opinions she is discussing. (Tr. 17-19).
The plaintiff claims that the ALJ is also incorrectly stated that Dr. Trier's opinion was based totally on her complaints and statements. The plaintiff indicates that Dr. Trier sets out in the Mental Impairment Questionnaire, and in his accompanying letter, not only the symptoms but the signs that he believes support his opinion. (Tr. 355). This may be true, but there is still no indication that the signs and symptoms that Dr. Trier checked off on the questionnaire were based on anything other than the plaintiff's complaints and statements. The plaintiff also suggests that the ALJ should have recontacted Dr. Trier to obtain additional information. While it is true that the regulations allow for recontacting medical sources when the available evidence is inadequate for the ALJ to determine whether the claimant is disabled, the ALJ in the present case found adequate evidence to determine that the plaintiff was not disabled. Considering the extensive record in this case, the court agrees with the Commissioner that there was no need for the ALJ to recontact Dr. Trier.
The court also finds that the ALJ properly found the plaintiff's subjective allegations not fully credible. An ALJ is responsible for weighing the evidence and reaching a credibility determination. Cass v. Shalala, 8 F.3d 552, 555 (7th Cir. 1993). In the present case the ALJ considered the medical evidence, the testimony of the plaintiff, and the plaintiff's activities of daily living. The ALJ's credibility finding was not patently incorrect and, thus, will not be disturbed. Imani v. Heckler, 797 F.2d 508, 511 (7th Cir. 1986).
Conclusion
On the basis of the foregoing, the ALJ's decision is hereby AFFIRMED.