Opinion
Civil Action No. 09-717.
June 9, 2010
MEMORANDUM OPINION
Acting pursuant to 42 U.S.C. § 405(g), Gordon Thurber ("Thurber" or "the Claimant") appeals from a May 13, 2009 decision of the Commissioner denying his application for disability insurance and supplemental security income benefits. Cross Motions for Summary Judgment are pending. The Motion filed by Thurber (Doc. 8) will be denied, and the Motion filed by the Commissioner (Doc. 13) will be granted.
I. BACKGROUND
On March 17, 2003, Thurber protectively filed an application for disability insurance benefits and supplemental security income benefits, alleging that he became disabled on July 31, 1996 due to seizure and affective disorders. This claim was denied initially in a decision dated September 23, 2003. Thurber then requested a hearing which took place in Grove City, Pennsylvania on October 16, 2006. The Claimant, who was represented by counsel, testified, as did a vocational expert. On February 23, 2007, the Administrative Law Judge ("ALJ") issued a decision in which she found that Thurber was not disabled. (T. 16). A request for review was denied by the Appeals Council on May 13, 2009, making the ALJ's opinion the final decision of the Commissioner. This appeal followed.
This was Thurber's second application for benefits. His first application was filed on September 13, 1994, and denied by another ALJ on July 30, 1996. Thurber's last date insured for purposes of disability insurance benefits was September 30, 1998, which means that in order to receive disability benefits in the pending matter, he must establish that he was disabled on or before that date.
II. STANDARD OF REVIEW
The Social Security Act ("the Act") limits judicial review of the Commissioner's final decision regarding benefits to two issues: whether the factual findings are supported by substantial evidence, Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988), and whether the correct law was applied. Coria v. Heckler, 750 F.2d 245, 247 (3d Cir. 1984). "Where the ALJ's findings of fact are supported by substantial evidence, [the Court is] bound by those findings, even if [it] would have decided the factual inquiry differently." Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001).
III. THE ALJ'S OPINION
The ALJ arrived at her finding that Thurber was not disabled within the meaning of the Act by applying the sequential five step analysis articulated at 20 C.F.R. §§ 404.1520(a) and 416.9020(a). A claimant bears the burden of proof at the first four steps, and the Commissioner bears the burden at the fifth. See Fargnoli, 247 F.3d at 39. The ALJ resolved this matter at Step Five.
The familiar five steps are as follows: (1) If the claimant is performing substantial gainful work, he is not disabled; (2) If the claimant is not performing substantial gainful work, his impairment(s) must be "severe" before he can be found to be disabled; (3) If the claimant is not performing substantial gainful work and has a "severe" impairment (or impairments) that has lasted or is expected to last for a continuous period of at least twelve months, and his impairment (or impairments) meets or medically equals a listed impairment contained in Appendix 1, Subpart P, Regulation No. 4, the claimant is presumed disabled without further inquiry; (4) If the claimant's impairment (or impairments) does not prevent him from doing his past relevant work, he is not disabled; (5) Even if the claimant's impairment or impairments prevent him from performing his past work, if other work exists in significant numbers in the national economy that accommodates his residual functional capacity and vocational factors, he is not disabled.
At Step One, the ALJ found that Thurber had not engaged in substantial gainful activity since July 31, 1996. At Step Two, the ALJ concluded that the Plaintiff had "the following severe impairments: epilepsy with complex partial and secondary generalized seizures, organic mental disorder, an affective disorder, and a history of substance addition disorder, in remission. She found at Step Three that none of these impairments met or was equivalent to any of the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1. Specifically, the ALJ considered the listed impairment at 11.02, Epilepsy — convulsive, and the one at 11.03 Epilepsy — nonconvulsive, and concluded that the specific findings — particularly a detailed description of seizure activities — required by the listings are not present in this record. (R. 19). The ALJ wrote:
Listing 11.02 requires frequency greater than once a month, and listing 11.03 requires frequency more than once a week, neither of which is documented in this. The medical evidence does not satisfy § 11.00, Neurological, Appendix 1. The claimant testified that he experiences grand mal seizures five times per month and petit mal seizures ten times a month, but the medical record does not support this frequency.
(Id.).
The ALJ next assessed Thurber's organic mental disorder, depression, and history of substance abuse in accordance with the listed criteria for Organic Medical Disorders listed at 12.02, Affective Disorders at 12.04, and Substance Addiction Disorders at 12.09. As to these, she wrote:
The record shows some but not all of the symptoms Required by Part A of listings 12.02 and 12.04. The record shows substance abuse in the past which now appears to be in remission. Therefore, the use does not appear pervasive enough or prolonged enough to satisfy the preamble to listing 12.09. The claimant does not exhibit a marked or equivalent limitation in two (in fact, any) of the four categories set out in part B of listings 12.02 and 12.04, which are also the measure of severity for listing 12.09.
(Id).
At Step Four, the ALJ concluded that Thurber's severe limitations prevented him from returning to his past relevant work operating heavy machinery.
After reviewing the medical evidence and Thurber's description of his symptoms, the ALJ found that Thurber's "diagnosed seizure disorder" could "reasonably be expected to produce some seizure activity," but that the record did not "show frequency that would prevent sustained work." (R. 24). Based on her evaluation of the medical evidence and Thurber's testimony, the ALJ found that the Claimant had:
the residual functional capacity to perform work that does not require: exertion above the medium level to lift frequently 25 pounds and at times 50 pounds; or to make complex decisions; or to follow detailed instructions; or to climb ladders, or to be exposed to temperature extremes, moving machinery, or to heights; or to deal with the public; or to adapt to frequent changes in a work setting.
(R. 20). Given this residual functional capacity, the vocational expert testified that Thurber could perform work available in significant numbers in the national economy. (R. 69). As a result, the ALJ concluded that Thurber was not disabled within the meaning of the Act. (R. 27).
IV. DISCUSSION
The Claimant raises two allegations of error: He contends first that the ALJ failed to give proper consideration to the opinions of his treating physicians; and next, that she did not adequately explain why his testimony was deemed to be less than fully credible. The Court considers these arguments in turn.
The ALJ's Failure to Credit the Opinions of Thurber's Treating Physicians
Thurber focuses this argument on the ALJ's treatment of the opinions of Dr. Patel, the Claimant's treating psychiatrist, and Dr. Brossard, his treating neurologist, stating:
The Claimant does not contend that the record evidence pertaining to the period before the decision in his prior filing fails to show that he was disabled. The ALJ nonetheless reviews this evidence in some detail, noting that although Thurber did have seizures that dated from a work-related incident in 1993, diagnostic testing, including a CT scan, awake and sleeping EEGs, an MRI in January 1993, and an awake EEG in June 1994, were normal. A twenty-four hour ambulatory EEG in April 1995 was also normal. (T. 23). Thurber treated with Jose Toledo, M.D. from the time of his initial seizure through August 1995. (T. 156-186). Dr. Toledo prescribed anti-seizure medication, but did not conclude that Thurber was disabled. His notes show that he recommended vocational rehabilitation, (T. 178), and, in a conversation with Thurber's attorney, identified work-related restrictions. These included avoidance of heights, driving, and operating heavy machinery. Dr. Toledo found that there was a twenty-nine per cent impairment of the whole person. (R. 177).
Neurologist Paul A. Flaten, M.D. conducted an independent examination in October 1995, finding that all neurological tests were normal, and concluding, based on Thurber's records and medical history, that the Claimant had a "convulsive seizure disorder [that] had not been adequately trial managed with the various available anticonvulsant medications" (R. 196).
In May 1996, Thurber was examined by David Bush, Ph.D., a neuropsychologist. Thurber reported that he had not seen Dr. Toledo since October 1995, although he continued to take anti-seizure medication. He was not under the care of any other physician, and "was anxious to return to work" but had not had offers. (R. 200). Aside from a course of inpatient and outpatient treatment for substance abuse in 1991, Thurber "denied any other contacts with psychologists or psychiatrists." (Id.). Dr. Bush "did not appreciate any evidence of serious psychopathology or obvious cognitive impairment." (R. 202). With respect to Thurber's ability to return to work, Dr. Bush wrote that "his inadequately controlled seizure disorder obviously constitutes a major obstacle. Certainly, he needs to be under the ongoing care of a neurologist who is able to try him on a range of antiseizure medications." (Id.). Dr. Bush also concluded that Thurber "could certainly be experiencing subtle cognitive and other neuropsychological deficits as a consequence of his seizure disorder. If so, I strongly doubt that it would be serious enough to keep him from performing the kind of work that he was doing prior to [January 1993]." (Id.) Dr. Bush was not able to assess Thurber's disability status in the absence of "a comprehensive neuropsychological examination." (Id.).
Thurber's medical records indicate that he did not consult another physician or psychologist prior to his last insured date.
It is clear from Dr. Patel's assessment that [the claimant] meets both the A and B criteria of Listing 12.04. Dr Brossard, the claimant's treating neurologist . . . indicated that [the claimant] is in need of assisted living in a supervised setting where medical help is available for assistance with his neurologic disabilities. The ALJ indicated that these opinions were given little weight as there were no treatment notes from these recently retained physicians [but] gave significant weight the state agency opinions that the claimant was not disabled . . . The state agency reviewing doctor . . . should not have been favored over treating physicians. . . .
(Doc. 9 at 5).
"A cardinal principle guiding disability eligibility determinations is that the ALJ accord treating physicians' reports great weight, especially when their opinions reflect expert judgment based on a continuing observation of the patient's condition over a prolonged period of time." Morales v. Apfel, 225 F.3d 310, 317 (3d. Cir. 2000). "[The] ALJ may reject a treating physician's opinion outright only on the basis of contradictory medical evidence." Lockley v. Barnhart, Civil Action No. 05-05197, 2006 WL 1340866 at*4 (E.D. Pa. May 16, 2006) (citing Newhouse v. Heckler, 753 F.2d 283, 286 (3d. Cir. 1984)). This does not, however, mean that a treating physician's opinion is unassailable. The regulations make clear that there are factors which may favor rejecting or diminishing the weight given to that opinion.
The ALJ is authorized to consider the nature and extent of the treatment history, 20 C.F.R. §§ 404.1527(d)(2)(ii), 416.927(d)(2)(ii), the extent to which the opinion is explained and supported by other evidence in the record, 20 C.F.R. §§ 404.1527(d)(3),416.927(d)(3), whether the opinion is consistent with the entire record, 20 C.F.R. §§ 404.1527(d)(4), 416.927(d)(4), and the extent of the source's familiarity with the other record evidence.
Here, the ALJ rejected Dr. Patel's finding that Thurber was completely disabled as a result of a mental impairment meeting the criteria of listing 12.04 at 20 CFR Part 404, Subpart P, Appendix 1. She also rejected Dr. Brossard's finding in a single-paragraph letter that Thurber `s neurological deficits indicated that he should be placed in assisted living. In discounting the opinions of these medical professionals, the ALJ relied on those factors set forth in the relevant regulations which discuss the weight to be given the opinions of a claimant's treating physicians. She explained her rejection of the findings of Drs. Patel and Brossard in detail, citing the conclusory nature of those opinions, her assessment of the Claimant's credibility and the contrary medical evidence in the record.
The ALJ discussed thoroughly the specifics of all of the medical evidence in the record, both that preceding the last date on which Thurber was insured, and that following a years-long gap, which ended in July 2003 with Thurber's visit to physiatrist, Patrick Gonzalez, M.D. Dr. Gonzalez noted that Thurber had stopped taking antiseizure medication some three years prior "because he could not function appropriately and he was always very sleepy." (R. 204). The Claimant lived with his grandmother "and [saw] that she [ate] and [took] her medication." (Id.). All aspects of his physical examination were normal. Dr. Gonzalez concluded: "I will defer to a neurologist to establish gainful employment potential in light of the presently untreated seizures [sic] disorder." (R. 206).
Gregory Landrum, a clinical and forensic psychologist, conducted an evaluation of Thurber following his referral "for evaluation by the Office of Disability Determinations." (R. 207). Thurber exhibited a mild to moderate level of apprehension, but did not express suicidal ideation. His mood was depressed, and he reported problems with sleep and loss of appetite. (R. 208). He was not overtly anxious, and his thought processes were logical and coherent. Attention and concentration were considered intact, his intellectual functioning was in the low average range, and his visual memory show no significant deviation from the normative group. (Id.). Dr. Landrum did, however, find a "significant difference in his results from the norm in all of the auditory tasks. It is anticipated that his history of seizure disorder combined with the present findings support the amnestic disorder scenario." (Id.). Thurber appeared to have the ability to handle his own finances. He stated that he could not drive but tried to help his grandmother cook and clean, and visited with neighbors. His prognosis was guarded. Dr. Landrum did not indicate that the Claimant was unable to work.
In September 2003, state agency psychologist, Deborah Carter, Ph. D. conducted a psychiatric review of Thurber's records. (R. 210-227). She concluded that the Claimant suffered from amnestic and dysthymic disorders resulting in moderate restriction in Thurber's activities of daily living, mild difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence and pace. (R. 220). He had not suffered any episodes of decompensation. In a Mental Residual Functional Capacity Assessment, Dr. Carter found that Thurber did not have significant limitations in his ability to remember locations or work-like procedures, could remember, understand, and carry out very short and simple instructions, perform activities within a schedule, sustain an ordinary routine without special supervision, work in coordination or proximity to others without distraction, and make simple work-related decisions. (R. 224). He was not significantly limited in his ability to interact with the general public, ask simple questions or request assistance, accept instruction and respond appropriately to criticism from supervisors, get along with coworkers or peers, maintain socially appropriate behaviors, respond appropriately to changes in work setting, be aware of normal hazards, set realistic goals, and plan independently. (R. 225). The Claimant was determined to be moderately limited in his ability to maintain attention and concentration for extended periods, complete a normal work-day and work-week without interruption from psychologically based symptoms, to perform at a consistent pace without rest periods unreasonable in number or length, and in his ability to travel in unfamiliar places or use public transport. (R. 224-25). Marked limitations were noted in Thurber's ability to understand, remember, and carry out detailed instructions. (R. 224). In her written comments, Dr. Carter concluded that, overall, the Claimant retained the mental and social capacity to function independently. (R. 226).
Also in 2003, state agency physician, L. Ortiz, M.D.P.S., prepared a physical residual functional capacity assessment. (R. 228 — 235). Dr. Ortiz mentioned that Thurber had reported a history of seizures, but had not seen a neurologist for four years. (R. 229). Very few physical limitations were noted. According to Dr. Ortiz, Thurber could lift fifty pounds occasionally, and twenty-five pounds frequently. He could stand or sit about six hours in an eight hour work day. (R. 229). The only other limitations noted were the need for Thurber to avoid concentrated exposure to hazards, including operating machinery and heights. (R. 232).
In February 2004, different state agency physicians undertook a psychiatric review and a physical residual functional capacity assessment. Psychologist Alan Stead, Ph.D. completed the psychiatric review, considering particularly the extent of any organic mental disorder, affective disorder, or substance addiction disorder. Dr. Stead found that Thurber did have a memory impairment that could have resulted from a seizure disorder, drug abuse, or his 1993 accident. He also found that the Claimant suffered from a dysthymic disorder, and had a history of polysubstance abuse. None of these impairments met the relevant listings. Based on his review of Thurber's records, Dr. Stead concluded that Thurber had mild restrictions in activities of daily living and maintaining social function, was moderately restricted in maintaining concentration, persistence, or pace, and had not suffered any episodes of decompensation. (Id.). He did evidence a significant memory impairment which was likely due to a seizure disorder, extensive drug abuse or a closed head injury. Thurber had not alleged new or worsening mental complaints, and no other significant limitations were identified. (R. 261).
Dr. Jim Takach, M.D. completed a physical residual functional capacity assessment. (R. 236-243). He found that Thurber did not have any exertional limitations, but should never climb ramps, stairs, ladders, or scaffolds, and should avoid even moderate exposure to hazards such as machinery or heights. (R. 238, 240).
In July 2006, Thurber was seen for the first time by Colleen Barrett ("Barrett"), a nurse practitioner in the office of Betty Jean Bardella, M.D. Thurber told Barrett that he had at least five seizures per month, but "has not followed with a neurologist in quite some time, in fact I really do not have any medical records past the year 1995 or 1996. He stopped [antiseizure medication] on his own several years ago." (R. 270). He was able to ride a lawn tractor, but was "very careful." (R. 269). Thurber also reported depression, stating that he had "seen a number of psychiatrists," and had taken Prozac in 1991, but was not presently taking antidepressants. (R. 270). He stated that he slept well and had a good appetite. (R. 271). The physical examination was essentially normal with the exception of slightly elevated blood pressure. In her treatment plan, Barrett wrote:
Patient is asking me to Disable [sic] him and asking me to state that he does not need any health sustaining medications. I explained to the patient at this point that he has not followed with a physician in a great number of years and I did not feel that, although he probably is permanently disabled, that I could permanently disable him just based on this one encounter today. In fact, I feel that there is a chance that he could do work if his seizures were under control with the right medication. So I did ask him to be evaluated by a neurologist and we will schedule that appointment for him.
(R. 271).
Thurber was scheduled to see a neurologist, Iris Brossard, M.D., on August 2, 2006. Dr. Bardalla's office notes indicate, however, that Dr. Brossard declined to examine the Claimant on the date scheduled, because he was intoxicated.
On August 22, 2006, Thurber met for the first time with Dr. Bardella. She noted that he continued to complain of seizures, but had not been seen by a neurologist for almost five years, and was not on antiseizure medication. (R. 265). The Claimant had kept a recent appointment with Behavioral Health in Greenville in order to address his depression and anxiety symptoms. (Id.). His laboratory results were, [f]or the most part, within normal limits other than mildly elevated alkaline phosphate and SGOT," which was likely alcohol-related. (Id.). He had an iron deficiency, and was referred for GI and neurologic evaluations.
On August 30, 2006, Thurber had an MRI of the brain, which was normal, and an EEG. (R. 274, 275). "No abnormalities [were] produced by activation procedures."(R. 274). Dr. Brossard noted that a normal EEG does not rule out a seizure disorder. (Id.). The only other item in the record from Dr. Brossard is a letter dated October 11, 2006. Its salutation reads "To Whom It May Concern," and the body of the letter reads simply: "I am Mr. Thurber's neurologist. I believe that he is in need of assisted living. The patient has neurologic disabilities that make it important for him to be living in a supervised setting where medical help is available." (R. 286). Dr. Bardella, without referring to treatment notes or other diagnostic records, wrote on a prescription slip that she concurred with the "plan to move" Thurber to a facility where he could receive assisted care. (R. 285).
The only other medical information in the record is a document dated October 19, 2006 which is titled "Rating of Impairment Severity Listing 12.04 — Affective Disorders" prepared by a person identified in a cover letter written by Thurber's attorney as "Dr. Patel." (R. 287-289). Dr. Patel's practice area is not identified, nor does the report indicate that he treated or examined the Claimant. Without referencing medical records or identifying the basis for his findings, Dr Patel, by checking items on a form that tracks the 12.04 listing set out in 20 CFR Part 404, Subpart P, Appendix 1, concluded that Thurber suffered from a depressive syndrome characterized by anhedonia, sleep disturbance, psychomotor agitation or retardation, and thoughts of suicide. He. checked an item indicating that Thurber did not have manic symptoms, yet also checked that Thurber did have "bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes (and currently characterized by either or both syndromes.)" (R. 289-90). Dr. Patel indicated that Thurber had marked difficulties maintaining social functioning and maintaining concentration, persistence, and pace. (R. 290). Last, Dr. Patel concluded that Thurber had a "[m]edically documented history of a chronic affective disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and . . . repeated episodes of decompensation, each of extended duration." (Id.).
The Court has carefully reviewed the entirety of the record in this matter and is confident that substantial evidence supports the ALJ's decision not to give controlling or significant weight to the opinions of Drs. Bardella, Brossard, or Patel. As the ALJ observed, and the summaries of their observations make clear, these opinions do not appear to have been based on treatment records, are not explained by the doctors' cursory personal observations, and, in the case of Dr. Patel, are internally inconsistent. In fact, the findings of each of these professionals are conclusory, and are contradicted by the remainder of the medical evidence. Where this is the case, the term "treating physician" is of little significance. The fact remains that from 1993 on, Thurber had not been hospitalized, sought emergency treatment, and had not received regular medical care, or any psychological care at any time prior to the hearing. He had not taken antiseizure or antidepressant medication for years. All of his medical tests were normal.
In view of the paucity of support of these doctors' findings, it is impossible for the Court to credit the Claimant's assertion that Thurber's medical records show that his "doctors have treated [him] extensively over the course of many years and are best qualified to render an opinion concerning the Claimant's diagnosed conditions, prognosis and the effects her [sic] condition has upon her [sic] ability to sustain both daily and work related activities. The treating physician's [sic] should be given more weight than those who have had either no or very limited contact with the Claimant." (Doc. 9 at 6).
Although the Claimant treated with Dr. Toledo over some two years, he did not continue to take the medicines that Dr. Toledo prescribed. Moreover, Dr. Toledo did not concluded that Thurber was disabled from work. He instead concluded that Thurber should undergo vocational rehabilitation and could work with certain restrictions. (Tr. 177-178).
The nature of the evidence submitted by Drs. Bardella, Brossard and Patel was not the only ground for the ALJ's decision not to accord their opinions significant weight. She also found that these opinions did not jibe with evidence concerning Thurber's activities of daily life. As the Court has already discussed, the evidence shows that Thurber was able to care for his grandmother, ensuring that she ate and received her medication. He admitted to Dr. Bardella that he drove on occasion, and operated a riding mower without incident. He could wash dishes, cook microwave meals, sweep, take out the trash, socialize with neighbors, work jigsaw puzzles, and read the paper daily. The ALJ reasoned that these activities did not suggest complete disability, and were not consistent with the reliable medical evidence. She also stressed that her assessment of Thurber's residual functional capacity took into account the limitations documented by the record, and the activities in which he regularly engaged.
The ALJ's discussion of the reasons underlying her decision to credit the 2003 and 2004 findings of the four state agency examiners establishes that her decision — and the corollary decision to reject the opinions of Drs. Bardella, Brossard and Patel — was firmly grounded in the factors set which may, under governing regulations, be invoked to cast doubt on the reliability of the findings of a treating physician — the nature and extent of the treatment history, 20 C.F.R. §§ 404.1527(d)(2)(ii), 416.927(d)(2)(ii), the extent to which the opinion is explained and supported by other evidence in the record, 20 C.F.R. §§ 404.1527(d)(3),416.927(d)(3), whether the opinion is consistent with the entire record, 20 C.F.R. §§ 404.1527(d)(4), 416.927(d)(4), and the extent of the source's familiarity with the other record evidence.
The Claimant's contention that the ALJ erred in failing to credit the opinions of Thurber's treating physicians is meritless.
The ALJ'S Credibility Determination
Thurber next contends that the ALJ "commit[ed] error when she [did] not adequately explain why the Claimant's testimony was found to be not fully credible." (Doc. 9 at 8). Given the Court's detailed discussion of the evidence cited in its discussion of Thurber's first allegation of error, this contention does not warrant extended discussion. Even a cursory reading of the ALJ's decision is sufficient to establish that she did, indeed, explain the basis for her failure to credit fully the Claimant's account of the extent of his seizure activity and the effects of his depression. She considered not only Thurber's activities of daily living, but devoted extensive atention to the content of the medical record, tying her residual functional capacity determination to the substantiated record evidence, and crediting the Claimant's testimony to the extent that it was documented.
As a general rule, courts must defer to the ALJ's credibility determination, given his or her unique opportunity to assess the witnesses' demeanor. See, e.g., Atl. Limo., Inc. v. NLRB, 243 F.3d 711, 718 (3d Cir. 2001). This is especially true where, as here, the Claimant described his conditions and their consequences in detail, and the ALJ anchored her credibility determination to the specifics of the medical evidence. See,e.g., Reefer v. Barnhart 326 F.3d 376 (3d Cir. 2003).
The Court has independently and carefully reviewed the record, and is convinced that there is substantial evidence to support the ALJ's credibility determination.
V. CONCLUSION
For the reasons set out above, the Motion for Summary Judgment (Doc. 8) filed by the Claimant will be DENIED, and the Motion for Summary Judgment (Doc. 13) filed by the Commissioner will be GRANTED. Appropriate Orders follow.