Opinion
Cause No. IP01-1114-C-T/F
June 24, 2002
ENTRY REVIEWING COMMISSIONER'S DECISION
This entry is a matter of public record and is being made available to the public on the court's website, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Plaintiff requests judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act (the "Act"). The court rules as follows.
I. BACKGROUND
A. Plaintiff's Testimony Plaintiff, Mary Truman, applied for DIB and SSI in April 1999, alleging disability beginning in July 1978. Her application was denied initially and upon reconsideration.
Administrative Law Judge ("ALJ") James Norris held a hearing, and, on April 25, 2000, issued a decision denying benefits. The ALJ found that Ms. Truman was not disabled since she retained the residual functional capacity ("RFC") to perform medium work and was qualified for a significant number of jobs in the economy. The Appeals Council denied review, and the ALJ's decision became the final decision of the Commissioner.
At the time of the ALJ's decision, Ms. Truman was thirty-seven years old. (R. at 28.)
She had a twelfth grade education and fifteen years of part-time work experience as a waitress in a bar. (R. at 28, 78.) Ms. Truman stated that she last worked as a waitress in November 1998, but that she had to leave her job because it became too difficult to perform the required tasks. (R. at 28.) She did not seek any medical attention at the time.
(R. at 29.) Prior to 1999, when Ms. Truman went for a physical, she had not sought any treatment, nor consulted a physician regarding treatment of her condition, since she was fifteen years of age. (R. at 29, 38-39.) Ms. Truman stated that she did not take any medications or follow any treatment programs for her pain but that she sometimes used a heating pad, an electric blanket and took aspirin "every once in a while." (R. at 35-36.)
Ms. Truman testified that she experienced back pain, difficulty bending, stooping, walking and raising her arms over her head. (R. at 30-32, 38.) She also stated that it took her thirty-five to forty minutes to walk one block, after which she needed to rest for fifteen to twenty minutes. She estimated that this was the maximum distance she could walk and that she had trouble walking because one leg was shorter than the other. (R. at 32, 40.)
During a prior application for disability, a physician had recommended getting special shoes that would alleviate some of the discomfort and difficulty Ms. Truman experienced when walking, but she had not done so. (R. at 32, 40-41.) Ms. Truman also testified that she could lift five pounds followed by a five to ten minute rest, and she was able to sit for twenty to thirty minutes at a time before she had to shift her position. (R. at 32-34.) Ms. Truman stated that her daily activities included light housework, such as dusting, washing dishes, cooking and picking up trash. Ms. Truman also testified that she bathed and dressed herself, crocheted, sewed, drew, wrote letters, listened to the radio and watched television. (R. at 34-35.)
B. Medical Records Ms. Truman was diagnosed on March 17, 1978, with thoracic scoliosis which measured thirty-five degrees. (R. at 109.) She was treated with a back brace which decreased her scoliosis to thirty-two to thirty-three degrees. (R. at 106-109.) By September 1, 1978, Ms. Truman's physician felt her scoliosis was stabilized. (R. at 107.)
There is no evidence that Ms. Truman sought or received any treatment from September 1978 until she underwent a consultive examination, at the Agency's request, with Thabet Al-Sheikh, M.D. on May 18, 1999. (R. at 110-113.) At the examination, Ms. Truman displayed obvious scoliosis, but exhibited normal gait, strength, muscle tone and range of motion, although there was some limited range of motion in her lumbar spine. (R. at 110-111.) Ms. Truman also showed no difficulty walking on her heels and toes, squatting, getting in and out of a chair and getting on and off the examination table. (R. at 110-111.) She also reported that she was not taking any medications for her pain. (R. at 110.)
On July 1, 1999, Ms. Truman went for a physical at the Arlington Clinic at Wishard Memorial Hospital. (R. at 101.) Ms. Truman primarily complained of pain and swelling in her right hip and ankle but stated that she was not taking any medication. (R. at 101) Jeffery Gatz, M.D. reported that Ms. Truman had moderate scoliosis but that she exhibited normal strength and sensation. (R. at 101.) This is the only record from Dr. Gatz or the Arlington Clinic.
In June and October 1999, two state agency physicians reviewed Ms. Truman's medical records and assessed her ability to work. (R. at 114-121.) They found that she could occasionally lift fifty pounds, frequently lift twenty-five pounds, and sit or stand and walk for six hours each in an eight hour work day. (R. at 115.) The physicians noted no postural limitations (R. at 116), and did not find any non-exertional limitations. (R. at 116-121.)
II. DISCUSSION
A. Standard of Review The standard of review in these cases is a deferential one. "The Social Security Act limits the scope of judicial review, providing that the agency's finding of facts are conclusive so long as substantial evidence supports them and no error of law has occurred." Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). Substantial evidence is defined as such relevant evidence that a reasonable mind could accept as adequate to support a conclusion. Id.; Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001). Though the court may review the entire record to determine if there is relevant evidence adequate to support the ALJ's conclusion, it does not decide the facts anew, re-weigh evidence, or substitute it's judgment for that of the ALJ. Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Although the ALJ is not required to address every piece of evidence, he must express clearly a legitimate reason for his decision. Most importantly, he must "build an accurate and logical bridge from the evidence to his conclusion." Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir.), as amended (Dec. 13, 2000). Because the ALJ is in the best position to assess the credibility of witnesses, the court grants special deference to a credibility determination made by the ALJ, Nelson v. Apfel, 131 F.3d 1228, 1237 (7th Cir. 1997), and will reverse that determination only if the claimant can show that it was "patently wrong." Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000).
B. Analysis To qualify for disability benefits under the Act, a claimant must prove that she suffers from a "disability" as defined by the Act. The 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.
The ALJ performs a five step inquiry to determine whether or not the claimant is disabled. These five steps are: 1) If a claimant is engaging in work activity which is both substantial and gainful a finding of "not disabled" is made; 2) If a claimant's impairment does not significantly limit his/her physical or mental ability to do basic work activities, a finding of "not disabled" will be made on the basis that the claimant does not have a severe impairment; 3) If a claimant has an impairment which meets or equals those listed in the Listing of Impairments, a finding of disability will be made on medical factors alone; 4) If a claimant has a severe impairment but his/her residual functional capacity ("RFC") does not prevent performance of past relevant work, a finding of not disabled is made; 5) If a claimant has a severe impairment which prevents performance of past relevant work, the ability to engage in substantial gainful activity must be determined based on the individual's RFC and vocational abilities. 20 C.F.R. § 404.1520(b)(c)(d)(e)(f).
The ALJ decided this case at step five and determined that Ms. Truman had an RFC to perform medium work. Medium work involves frequently lifting or carrying objects up to twenty-five pounds maximum weight with occasional lifting of fifty pounds. 20 C.F.R. § 404.1567(c).
Ms. Truman appeals that decision on several grounds, contending that 1) the ALJ discounted her reported pain in several instances; 2) the ALJ disregarded the testimony of the Vocational Expert ("VE"); 3) the ALJ erred in failing to re-contact Ms. Truman's treating physician; and 4) the ALJ reduced the credibility of her testimony by using his own judgment in deciding if her lack of muscle atrophy was consistent with the physical limitations she claimed to have. The court will now address each of these issues.
1. ALJ's Disregard for Plaintiff's Reported Pain Ms. Truman first argues that the ALJ discounted her reported pain in several instances and neglected to consider the fact that she might opt to treat herself "holistically" rather than with medication. A doctor had previously recommended a treatment in the form of shoe lifts to assist Ms. Truman in walking but she declined to utilize or obtain the lifts.
Ms. Truman testified that her difficulty walking stemmed from the fact that her legs were different lengths. When she walked, this discrepancy caused her hip, chest and rib bones to rub together. (R. at 40-41.) The ALJ logically concluded that a shoe lift, which is designed to make the legs equal lengths, would alleviate some of these problems and thus, alleviate some of Ms. Truman's pain.
The only evidence of medicinal treatment and pain management was a receipt for an over-the-counter pain medication and Ms. Truman's testimony that she sometimes used a heating pad or electric blanket and infrequently took aspirin. There was no evidence to demonstrate that she was employing alternative or holistic pain management methods.
Additionally, this infrequent use of medicines and other treatments to alleviate her pain was inconsistent with her testimony as to the severity of her discomfort. Blancha v. Sec'y of Health Human Servs., 927 F.2d 228, 231 (6th Cir. 1990) (use of only mild medications undercuts complaints of disabling pain). Finally, an ALJ should consider medications and other methods when determining the extent and severity of a claimant's pain and disability.
The medical examination performed by the state agency physician did not coincide with Ms. Truman's subjective statements. The examination revealed no evidence of major motor disruption such as muscle weakness or atrophy. (R. at 110-121.) The failure on the part of Ms. Truman to seek treatment from a physician or make any effort to alleviate her allegedly disabling pain further supports the ALJ's decision to discount her subjective complaints. The only evidence of her debilitating pain was Ms. Truman's own testimony.
Ms. Truman's daily activities also contradict her subjective complaints. For example, she testifies that she does a number of daily activities including light household chores, picking up trash, sewing and crocheting.
As stated before, it is not for the district court to re-weigh evidence but only to determine if there was enough evidence for the ALJ to logically reach his conclusion.
Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). The ALJ's finding that Ms. Truman's claim of debilitating pain was not credible is supported by substantial evidence and is not "patently wrong."
Ms. Truman also contends that Clifford v. Apfel, 227 F.3d 872 (7th Cir. 2000), proposes that "reversal is warranted because the ALJ gave little or no weight to a claimant's reports of pain." (Pl.'s. Br. at 2). However unlike the case before this court, the record in Clifford showed that the plaintiff had a history of seeking medical treatment for pain symptoms and that the plaintiff was on a medication regimen for her pain. Also, Clifford states that an ALJ can give little or no weight to a plaintiff's subjective complaints as long as the ALJ gives sufficient reason for doing so. Id. The ALJ in this instance gave sufficient reason for disregarding Ms. Truman's testimony, including the evidence presented in her testimony regarding her daily activities, the medical reports, and her failure to seek treatment or take prescription medicine for her pain. (R. at 13-16.)
2. Disregard for Vocational Expert Testimony Next, Ms. Truman states that the ALJ disregarded the testimony of the VE.
However, if a claimant only has exertional impairments, then the rules set out in the Medical-Vocational Guidelines (the "Grids") are controlling and a VE is not needed or required. 20 C.F.R. Part 404, Subpt. P., App. 2, § 204.00(a); Banks v. Massanari, 258 F.3d 820, 826-27 (8th Cir. 2001); Kimbrough v. Sec'y of Health Human Servs., 801 F.2d 794, 796 (6th Cir. 1986). Ms. Truman's only severe impairment is scoliosis. This is an exertional impairment and there was no evidence of a non-exertional impairment. Thus, the ALJ properly consulted the Grids to determine if Ms. Truman was qualified to receive disability, and was not required to consult a VE. 20 C.F.R. Part 404, Subpt. P, App. 2, § 203.28. Furthermore, because the ALJ was not required to consult a VE, that the ALJ may have disregarded the VE's testimony is of no consequence. Similarly, any objection to the hypothetical posed to the VE is inconsequential.
Exertional impairments are classified as impairments resulting in strength or physical type limitations. Non-exertional impairments are certain mental, sensory, or skin impairments. 20 C.F.R. Part 404, Subpt. P, App. 2, § 200(e); Mac v. Sullivan, 811 F. Supp. 194, 198 (E.D.Pa. 1993).
3. Failure to Re-contact the Treating Physician Ms. Truman further contends that the ALJ failed to re-contact her treating physician in order to obtain more evidence of her disability. Ms. Truman at no time produced evidence that she was under the care of a treating physician or that she had visited a physician more than once since 1978. Also, she has never identified who her treating physician might be.
Since there was no discernable treating physician, the ALJ was not required to search for one.
Ms. Truman's other contention is that the ALJ decided the case before her counsel could obtain additional evidence. However, Ms. Truman's counsel did not make a request to keep the case open and also neglected to produce any evidence from her treating physician. Consequently, the ALJ was entitled to decide this case without waiting for the additional reports.
In connection with her argument regarding re-contacting the treating physician, Ms. Truman also alleges that the RFC calculated by the state agency physician does not qualify as substantial evidence and that the physician who conducted the examination neglected to list Ms. Truman's inability to "stand up straight" as a postural limitation. First, it was proper for the ALJ to consider a state agency physician's assessment of Ms. Truman's RFC. See 20 C.F.R. § 404.1527(f)(2)(i). Second, the ALJ relied on the state agency physician's RFC assessment, objective medical evidence, and the other evidence of record, all of which constitutes substantial evidence, in making his decision.
In addition, "standing up straight" is not considered a postural limitation on the RFC assessment form (R. at 116), although the ALJ did take into account all of Ms. Truman's limitations when determining her RFC. (R. at 14.) When considering the limitations placed on Ms. Truman because of her scoliosis, the ALJ, while not specifically mentioning her inability to stand up straight, considered all of Ms. Truman's impairments in the aggregate when determining her RFC. (Id.) The Listings do take into account Ms. Truman's limited range of motion and her inability to stand up straight. Listing 1.05(C)(1)(2). However, Listing 1.05 requires that the condition persist for at least three months despite prescribed therapy and that there be significant motor loss with muscle weakness. Listing 1.05(C)(2).
As stated previously, Ms. Truman only visited a physician a handful of times since being diagnosed with scoliosis in 1978. She also declined to use the shoe lifts that were recommended by one of her previous examining physicians as a way to alleviate some of the problems caused by the scoliosis. Consequently, while her range of motion might be limited due to her inability to stand up straight, Ms. Truman did not meet the requirements of Listing 1.05, nor was this limitation, when considered with the objective medical evidence, severe enough for the ALJ to find her disabled under the Act.
4. ALJ Used Own Judgment Regarding Plaintiff's Muscle Atrophy Ms. Truman also asserts that the ALJ reduced the credibility of her testimony by using his own judgment in deciding if her lack of muscle atrophy was consistent with the physical limitations she claimed to have. While an ALJ must not "play doctor" and substitute personal judgment for medical evidence, in this case the ALJ utilized the evidence that was presented when he determined that Ms. Truman's lack of muscle atrophy did not support the claim that she was fully disabled. None of the medical records indicate that any sign of muscle atrophy had been found. Furthermore, her testimony concerning her day to day activities does not coincide with the claim that she is fully disabled. When presented with this evidence, the ALJ made a logical conclusion regarding Ms. Truman's muscle atrophy.
Ms. Truman also cites Shramek v. Apfel, 226 F.3d 809 (7th Cir. 2000). Ms. Truman contends that the ALJ was logically inconsistent and used his own judgment when deciding the issue of her muscle atrophy. However, in Shramek, the "factors" used by the ALJ were either unsupported by the record or were "patently" insufficient to support his conclusions and his claims. In the case before the court, the ALJ relied on the medical records and Ms.
Truman's testimony of her daily activities in deciding whether or not she had experienced muscle atrophy. None of the medical reports suggest that Ms. Truman suffered from muscle atrophy and her daily activities would seem to suggest otherwise. The ALJ relied both on oral testimony and objective medical records in making this decision.
III. CONCLUSION
The decision of the ALJ in this case is supported by a logical, well developed record and substantial evidence. Consequently, this court will not disturb the findings and conclusions of the ALJ. Therefore, the decision of the Commissioner in this case is AFFIRMED.