Opinion
Case No. 99-4174-RDR.
March 12, 2001.
MEMORANDUM AND ORDER
This is an appeal from a denial of plaintiff's application for disability benefits.
We review the decision to deny benefits in this case "to determine whether it is supported by substantial legal evidence and whether correct legal standards were applied." Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000). "Substantial evidence is `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id., quoting Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).
Plaintiff was born in 1951. She completed high school and has two and one-half years of college. She alleges a disability onset date of February 19, 1996.
The opinion of the Administrative Law Judge (ALJ) in this case concluded that plaintiff had not engaged in substantial gainful activity since February 19, 1996; that she had a combination of conditions which caused a severe impairment to her functional capacity; but that plaintiff had not proven that these conditions prevented her from performing her past relevant work as a volunteer recruiter/coordinator. (Tr. 18-19).
Plaintiff's impairments, as listed in the ALJ's order, are: fibromyalgia; left knee replacement with revision; bilateral carpal tunnel syndrome; lupus erythematosus; migraine headaches; bronchial asthma; Chiari syndrome; and depressive symptoms. (Tr. 18).
Plaintiff's first argument in this appeal is that the ALJ neglected to consider certain other impairments: depression and chronic pain; right median and left distal ulnar nerve lesions; rheumatoid arthritis; and arthralgias. We reject this argument. We agree with the Commissioner that the ALJ considered plaintiff's "depression" when he examined her "depressive symptoms;" that he considered the nerve lesions in conjunction with carpal tunnel syndrome; and that he considered the arthritis, arthralgia and chronic pain complaints in connection with the fibromyalgia and lupus reports.
Plaintiff's next argument is that the ALJ did not properly evaluate plaintiff's subjective complaints of pain and other disabling conditions. In judging this matter, we remain mindful that the ALJ's credibility findings require the court's deference and must not be upset if they are supported by substantial evidence. Winfrey v. Chater, 92 F.3d 1017, 1020 (10th Cir. 1996). "[I]t is not this court's task to reevaluate the factual evidence. We must affirm if, considering the record as a whole, including whatever fairly detracts from the findings, there is sufficient evidence which `a reasonable mind might accept as adequate to support a conclusion.'" Glenn v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
The ALJ looked at numerous factors in assessing the credibility of plaintiff's testimony regarding her condition and ability to work. One of these factors was plaintiff's work record. While noting that her work record was not "particularly helpful" in assessing credibility, the ALJ stated that plaintiff's "minimal to no earnings" for many years suggested a questionable motivation to work. (Tr. 14). He also noted that plaintiff receives worker's compensation benefits and monthly payments as a foster parent. Plaintiff objects by claiming that there are several reasons for her low earnings which she was not asked to explain during the hearing and that she does not receive any money for her own use as a foster parent or guardian.
It was no mistake of law for the ALJ to consider plaintiff's earnings and work record. Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995); Hunter v. Chater, 895 F. Supp. 1454, 1462 (D.Kan. 1995). Furthermore, plaintiff's representative had the opportunity to clear up any misunderstanding regarding the issue. The ALJ stated that plaintiff's work record was not "particularly helpful." Thus, it is clear that the ALJ relied only slightly upon this factor in deciding credibility. His consideration of this factor among others was proper in this case.
The ALJ also weighed plaintiff's activities in assessing credibility. Plaintiff's objection asserts that it was unfair and improper for the ALJ to consider what plaintiff or any reasonable person would consider as "necessary to survive," i.e., care for four children, ages 9 to 16. However, obviously it is relevant for the ALJ to consider daily activities such as cleaning, laundry, cooking, shopping and other duties attendant to the care of four children in determining the credibility of pain allegations. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995).
The ALJ also considered that: plaintiff had not had a carpal tunnel release procedure; she did not use a TENS unit or cane in spite of neck pain and muscle spasms; and that she had worked previously in spite of similar complaints of pain. Plaintiff asserts that no doctor recommended a carpal tunnel release and that such procedures are not always successful. Plaintiff further argues that her dedication to work is shown by the fact that she continued to work in spite of pain until her doctor recommended that she stop.
Obviously, an ALJ may consider the nature and extent of treatment in deciding credibility issues. Luna v. Bowen, 834 F.2d 161, 165-66 (10th Cir. 1987). His consideration of these issues in this case is not legal error. Plaintiff may offer an alternative construction of the record. But, in essence, plaintiff's arguments amount to a request that the court reweigh the evidence and make a de novo assessment of credibility. This the court cannot do. See Casias v. Secretary of Health and Human Services, 933 F.2d 799, 801 (10th Cir. 1991) (must defer to the ALJ as trier of fact and individual optimally positioned to assess witness credibility).
Under the same authority, it was not error for the ALJ to consider the lack of inpatient hospitalizations in assessing the nature and severity of plaintiff's impairments. While not conclusive of the issue of credibility, it was a legitimate factor to consider.
Plaintiff further argues that the ALJ misjudged her symptoms of fatigue, sleeplessness and depression. In this regard, the ALJ noted: that plaintiff was not taking prescribed medication for sleep at the time of the hearing; that she said she had not been recommended to see a mental health specialist; and that plaintiff indicated that she took Prozac for pain, not for depression. (Tr. 15). This appears to be a correct summation of plaintiff's testimony. (Tr. 31, 37-38). Plaintiff objects that there are medical records showing that plaintiff had been prescribed medication for sleep in 1995 and 1996 (prior to the hearing in May 1997) and that she had been prescribed medication, e.g., Zoloft, for depression.
Both plaintiff and the ALJ accurately recount the record. The issue is whether the ALJ's failure to discuss the points mentioned by plaintiff is so serious as to undermine any substantial evidence supporting his decision. The Tenth Circuit holds that: "The record must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to discuss every piece of evidence. Rather, in addition to discussing the evidence supporting his decision, the ALJ also must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects." Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (citation omitted). Here, we do not believe the evidence of medication for depression and sleep is significant to deciding whether plaintiff can perform substantial gainful activity for the following reasons. First, the fact that plaintiff has been prescribed medicine for depression and sleep does not mean that these conditions are disabling; it may mean that these conditions can be controlled with medication. Second, these conditions may exist and not be disabling whether or not plaintiff takes medication. See Glenn, 21 F.3d at 986-87 (presence of a mental disturbance — schizophrenia — does not mandate a finding of disability). Finally, plaintiff herself did not allege disability due to her mental health impairments on her application for disability benefits. (Tr. 138). This can be considered when discounting a claim of disability. Spradling v. Chater, 126 F.3d 1072, 1074 (8th Cir. 1994).
Plaintiff's next argument attacks the conclusions and opinions of Dr. DeMarco, the medical expert who testified at the hearing before the ALJ. Plaintiff asserts that: Dr. DeMarco ignored treating records for plaintiff's migraine headaches; ignored documented treatment for depression; and ignored certain diagnoses in the medical records relating to orthopedic pain, fatigue and drowsiness.
The court has reviewed the record and Dr. DeMarco's testimony. The court believes that Dr. DeMarco did not say or intend to say that there was no objective medical evidence to support plaintiff's complaints of pain, headaches and fatigue. Nor did the ALJ render such a conclusion. Dr. DeMarco's testimony, as we see it, stated that the medical records do not contain an objective basis supporting plaintiff's description of the frequency or intensity of her pain, headaches and fatigue. For instance, the records do not indicate that plaintiff described to doctors how often she had incapacitating headaches or that she needed to lie down or nap once in the morning and once in the afternoon. Regarding headaches, Dr. Stein reported in January 1997 that the frequency had reduced to two per month. (Tr. 326). Improvement was also noted in March 1997 (Tr. 321), although in April 1997, in a somewhat confusing notation, Dr. Stein remarked: "Plaintiff said that she thinks headaches are somewhat less than they were when I first began to treat her. She estimates about 10 headaches per month, lasting from a half to one day." (Tr. 320).
A prescription drug which was suspected of causing drowsiness was discontinued by Dr. Stein on January 28, 1997. (Tr. 324).
We do not believe the ALJ erred by relying upon the opinion of Dr. DeMarco. As noted by the Commissioner, the ALJ also considered the opinions of examining physicians such as Dr. Stein and Dr. Thompson in reaching his conclusions.
Plaintiff argues, however, that the ALJ ignored important evidence of arthritis or arthralgias. This argument is somewhat repetitive, but we will address it again. Whether plaintiff's pain resulted from lupus, or rheumatoid arthritis or fibromyalgia, the pain which plaintiff suffers was carefully considered by the ALJ, even if he did not attribute the cause of the pain to arthritis. Certainly, the most recent and convincing evidence in the record suggests fibromyalgia as the cause of plaintiff's pain. There is no persuasive evidence that arthritis was a disabling condition in this instance.
Plaintiff contends that the ALJ incorrectly refused to consider impairments which preexisted plaintiff's disability onset date and improperly evaluated plaintiff's credibility as well as the testimony of the vocational expert. We reject these contentions. The ALJ considered all the significant impairments which contributed to plaintiff's claim of disability on February 19, 1996. He found plaintiff's testimony only partially credible for reasons within the province of the ALJ.
Finally, although the vocational expert stated that plaintiff would be disabled from all work if she had to lie down twice a day for substantial periods of time, the ALJ was entitled to disregard this testimony. This is because the ALJ did not believe plaintiff needed to lie down twice a day for substantial periods of time. The ALJ's conclusion was a credibility judgment which the ALJ was authorized to make given the testimony of the medical expert and the medical records presented for review. Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000) (ALJ may reject vocational expert's opinion if that opinion is based on testimony not supported by the record).
In conclusion, after a careful review, the court believes the decision of the Commissioner to deny benefits is supported by substantial evidence and must be affirmed.
IT IS SO ORDERED.