Opinion
CIVIL ACTION. No. 00-2027-KHV.
February 28, 2000.
MEMORANDUM AND ORDER
Virginia L. Cozadd brings suit under 42 U.S.C. § 405(g) seeking judicial review of the Commissioner's decision to deny disability insurance benefits under Title II of the Social Security Act ("SSA"), 42 U.S.C. § 401 et seq. This matter is before the Court on the Brief In Support Of Plaintiff's Petition To Reverse The Commissioner's Decision (Doc. #9) which plaintiff filed July 19, 2000, which the Court construes as a motion for judgment. For reasons set forth below plaintiff's motion is sustained in part.
Procedural Background
On May 13, 1996, plaintiff applied for disability insurance benefits, claiming that she was disabled beginning April 12, 1995, as a result of a heart condition, diabetes, high blood pressure, back pain and shortness of breath. Tr. 70-73, 126, 155. On December 15, 1997, an Administrative Law Judge ("ALJ") found that plaintiff was not disabled. Tr. 21-35. The Appeals Counsel denied plaintiff's request for review. Tr. 7-8.
Factual Background
The following evidence was presented to the ALJ.
Virginia Lee Cozadd is 36 years old. Tr. 559. She is 5 feet, 7 inches tall and weighs 222 pounds. Tr. 559. She is separated from her husband and has a 17 year-old son who lives with her and an 18 year-old daughter who lives elsewhere. Tr. 561, 562, 575-76. Plaintiff currently lives with her former mother-in-law. Tr. 563. Plaintiff has a tenth grade education and says that she can read and write "somewhat." Id. Plaintiff did not have medical insurance until March 1997, when she obtained a state medical card. Tr. 586-87.
Plaintiff has worked as a certified nurse assistant, cook, laborer and manager/assistant manager in the fast food industry. Tr. 645-46. She last worked in March 1996, as a nurse's aid. Tr. 564. She held that job since April 1995, when she had a heart attack and did not work for about six months. Id. She returned to work in November and worked 32 hours a week until early January 1996, when she sprained her ankle. Tr. 320, 564-65, 588. She did not work in January because of the ankle sprain, and she did not work in February because her blood sugar was out of control. Tr. 320, 312, 318. Plaintiff returned to work at the end of February 1996. Tr. 295, 293. Soon thereafter, on March 4, 1996, plaintiff injured her back. She has not worked since that time. Tr. 291, 564-65.
Plaintiff's medical evidence establishes that she suffers from a lower back injury, coronary artery disease, diabetes, hypertension, hyperlipidemia, obesity and tobacco abuse. Her diabetes, hypertension and hyperlipidemia are controlled with medication. She also suffers from constant vaginitis as a result of too much sugar in her urine. Tr. 590-91.
On April 12, 1995, Shawnee Mission Medical Center ("SMMC") admitted plaintiff for eight days for an inferior myocardial infarction.() Tr. 188-202. A cardiac catheterization revealed that her right coronary artery was totally occluded proximally with thrombus evident and that her left anterior descending coronary artery contained 40-50 per cent stenosis. Tr. 188, 190-91. On April 14, 1995, doctors performed angioplasty of the right coronary artery. Id. SMMC discharged plaintiff with a diagnosis of inferior myocardial infarction, transmural; noninsulin dependent diabetes mellitus; obesity; tobacco abuse; and hyperlipidemia. Tr. 189. Doctors instructed plaintiff to resume light activity but to remain off work for six weeks. Id. Her discharge medications included ecotrin, coumadin, lopressor and diabeta. Id.
An inferior myocardinal infarction is a sudden insufficiency of arterial or venous blood supply that produces a macroscopic area of necrosis (the pathologic death of one or more cells or a portion of tissue or organ) to the inferior or diaphragmatic wall of the heart. See Stedman's Medical Dictionary at 868, 1179 (26th ed. 1995).
On May 4, 1995, SMMC admitted plaintiff for five days for chest pain. Tr. 203-13. A cardiac catheterization revealed a patent right coronary artery at the sight of the angioplasty with minimal residual stenosis. Tr. 204. According to the discharge summary, plaintiff had failed to follow up with her doctor regarding the coumadin which had been prescribed for her during the previous hospital stay. Id. Plaintiff was counseled "in depth" about smoking, weight loss and control of her diabetes and blood pressure. Id. Doctors opined that plaintiff's prognosis was "guarded" and depended "largely on her ability to lose weight, control her diabetes and reduce her lipids." Id. They prescribed nitroglycerin, baby aspirin, diabeta and lopressor. Tr. 203. In addition, they instructed her to continue weight reduction with a 1600 calorie diet and to walk daily. Id.
On June 2, 1995, Dr. Mancina performed a stress echocardiography on plaintiff because she had prolonged substernal chest pain. Tr. 214. He reported that plaintiff "walked without pain to her peak heart rate and showed no evidence of ischemia."() Id. Dr. Mancina recommended that plaintiff continue to use lopressor, folate, diabeta, vitamin E and baby aspirin. Id. He noted that she had "discontinued smoking which we strongly support and has lost over 25 pounds in the last month and should continue her weight loss/lipid lowering diet." Id. He further noted that
Ischemia is "[l]ocal anemia due to mechanical obstruction (mainly arterial narrowing) of the blood supply." Stedman's Medical Dictionary at 894.
Ms. Cozadd is stable at this time and can return to full activity. She may have chest pain from time to time secondary to chest wall pain and I have asked her to begin Ibuprofen 400 mg tid [sic] with meals for a two week period to relieve chest wall pain that appears to be the most likely cause for the last two episodes of chest discomfort.
Tr. 215. See also Tr. 366-69. Although Dr. Mancina opined that plaintiff was able to perform her duties without restriction, he stated that he would re-evaluate if she had recurrent anginal pain. Tr. 367. He further stated that "[i]n the past, the pain has been indigestion like discomfort which sometimes is confusing to [plaintiff] since she has had indigestion intermittently that was nonanginal." Id. Dr. Mancina planned to see plaintiff in October for a stress echocardiogram, but stated that he would see her sooner if she had recurrent pain. Id. He asked plaintiff to lose 30 more pounds and to stay away from cigarettes and foods containing high cholesterol. Id. He concluded that plaintiff was making a "great effort to limit her risk by altering her lifestyle and she has so far been successful." Id.
On July 31, 1995, SMMC admitted plaintiff overnight for chest pain. Tr. 218-29. The discharge summary reports that she showed no evidence of progressive myocardial ischemia and that she had no further chest discomfort after receiving 150 mg of zantac at bedtime. Tr. 218. The physician suspected gastroesophageal reflux disease as the cause for plaintiff's chest pain. Id. He discharged her with instructions to have an outpatient myocardial nuclear perfusion study and to take lopressor, aspirin, diabeta, zantac and nitroglycerin. Id. The discharge summary contains the following history:
During the past several weeks the patient has returned to her usual activities and three days ago she returned to her occupation as a nurses aid. Approximately thirty-six hours prior to this admission she again noted substernal burning pain which had the characteristic of "heartburn." . . . The patient states that she has adhered poorly to her diet. In addition she continues to smoke one half packs of cigarettes per day.
Tr. 220. In addition, the discharge summary contains the following assessment:
This patient presents with recurring symptoms that are atypical for angina pectoris. The symptoms have been unremitting for thirty-six hours and have not been altered by nitroglycerin, antacids or vigorous exercise. She states that she assisted in painting her house yesterday while she was having chest pain and this did not alter her symptoms. A recent electrocardiogram has been normal as have enzymes and it therefore appears unlikely that she is having a major myocardial ischemic event. . . . The patient obviously continues to have major risk factors and shows very poor compliance in either the treatment of her diabetes or her cardiac risk factors.
Tr. 222.
On August 4, 1995, Dr. Robert D. Conn, M.D., Cardiovascular Consultants, Inc. reported that plaintiff's thallium stress test showed "quite minimal ischemia in the distribution of the right coronary artery with only a 5 per cent involvement of the left ventricular mass." Tr. 364. Dr. Conn stated:
This would not be an unexpected finding in somebody that had a previously occluded right coronary artery that had been revascularized. In reviewing my assessment of the patient, I felt that her symptoms were not due to myocardial ischemia and I was struck by the fact that reflux esophagitis might be a better explanation for her recurrent chest pain at this time. Nonetheless, I would not feel that any changes in her cardiac program are warranted at this time other than careful dietary measures, control of her diabetes, and attention to her lipid abnormalities.
Id.
On October 2, 1995, Dr. Thomas H. Good, M.D., of Cardiovascular Consultants, Inc. performed an exercise echocardiogram on plaintiff. Tr. 363. He found that her clinical and electrocardiographic responses to exercise were non-ischemic and that her echocardiographic response to exercise was non-ischemic in the setting of old inferior myocardial infarction. Id. On October 12, 1995, Dr. Mancina examined plaintiff. Tr. 361. He noted that she had no chest pain since her last hospital admission. Id. He stated that plaintiff's "major concentration had been to reduce her risk factors, but, recently her diabetes has been out of control, her blood pressure has been elevated, and her weight has not been modified." Id. He further noted that plaintiff "continues to eat a diet which she thinks is appropriate and has not had success in lowering her glucose." Id. He recommended further evaluation if she continued to have chest pain. Tr. 362.
On January 15, 1996, plaintiff saw Dr. Randall C. Thompson, M.D., of Cardiovascular Consultants, Inc. Dr. Thompson reported that plaintiff had experienced intermittent chest discomfort since the thallium stress test in August. Tr. 359. Plaintiff described that the discomfort occurred immediately after she strained her upper body and lasted up to 2 hours. Id. Plaintiff reported taking increased doses of nitroglycerin tablets. Id. Dr. Thompson noted that plaintiff complained of fatigue and described hypersomnolence and feeling tired. Id. Plaintiff also reported that she continued to smoke five cigarettes a day. Id. Dr. Thompson noted that plaintiff's weight was up to 224 pounds, up four pounds since her last visit. Id. Dr. Thompson asked plaintiff to reduce her dosage of lopressor and to continue her other medications. Tr. 360. He also recommended that she undergo an adenosine thallium study to assess possible ischemia as the etiology of her chest pain symptoms. Id.
On January 23, 1996, Dr. Timothy Bateman, M.D., of Cardiovascular Consultants, Inc., reported the results of a "Rest TL-201/Adenosine Stress Sestamibi Scintigraphic" on plaintiff. The purpose of the test was to evaluate ischemia. Tr. 230-31. Dr. Bateman found that her clinical response was nondiagnostic, her electrocardiographic response was nonischemic and her scintigraphic response was ischemic. He concluded that
[t]he combined test findings are consistent with a very small region of ischemia inferiorly and inferoseptally at the base, consistent with RCA distribution ischemia. Left ventricular function is normal segmentally and globally, with LVEF 51%.
The findings are unchanged in comparison to August 2, 1995.
Tr. 231. See also Tr. 356-57.
On January 29, 1996, Dr. Thompson reported that the test results from January 23 showed a small localized area of ischemia in the inferior left ventricular segment. Tr. 355. He noted that the study was unchanged compared to the prior thallium test. Id. Dr. Thompson increased plaintiff's dosage of lescol and stated that since her thallium study did not show an important change, she should have continued medical therapy. Id. He opined that plaintiff's recent chest pain symptoms originated in the chest wall. Id. He asked plaintiff to follow up with Dr. Lawhead in 6 to 8 weeks for re-measurement of her serum cholesterol and return to Dr. Thompson in one year unless her symptoms changed. Id.
On February 2, 1996, Della Taylor-McIntosh, a nurse practitioner at the McLouth Medical Clinic, performed a follow-up examination of plaintiff regarding an ankle sprain which had occurred a month earlier. Tr. 320. Taylor-McIntosh noted great improvement and found no edema, erythema or tenderness to palpation. Tr. 321. Plaintiff stated that she was ready to return to work. Id. At the check-up, Taylor-McIntosh checked plaintiff's blood sugar level, which had recently been out of control. Tr. 320. Taylor-McIntosh prescribed insulin therapy and education on diabetes management. Tr. 319, 321. Although she released plaintiff to return to work from the ankle sprain, Taylor-Macintosh restricted plaintiff from returning to work until after February 12, 1996, because of her blood sugar level. Tr. 312, 318.
On February 5, 1996, Taylor-McIntosh performed a complete physical exam of plaintiff. Plaintiff reported that she smoked approximately 6 cigarettes a day and that she did not have an exercise routine and did not use alcohol or illegal drugs. Tr. 313. Plaintiff also stated that she tried to restrict fats, cholesterol and sugar in her diet, and that she avoided caffeine. Id. Plaintiff complained of fatigue, but denied extremity edema. Tr. 314. Taylor-McIntosh scheduled plaintiff for diabetic education with a 1200 calorie diet and encouraged slow weight reduction, compliance with a diabetic diet and her medication regime, exercise and Accu-checks. Tr. 315, 317. The next day, Taylor-McIntosh counseled plaintiff for 50 minutes on diabetic management. Tr. 310.
Between February 2 and March 1, 1996, Taylor-McIntosh monitored plaintiff's response to insulin therapy on a regular basis. See Tr. 293-323. On February 12, Taylor-McIntosh recommended that plaintiff remain off work until her blood sugars were under control. Tr. 306, 308. On February 26, 1996, Taylor-McIntosh released plaintiff to work the day shift. Tr. 295. On March 1, 1996, Taylor-McIntosh noted that plaintiff had returned to work four days a week. Tr. 293. On March 4, 1996, plaintiff spoke with Taylor-McIntosh's office. Plaintiff reported that she had not yet filled her prescription for glucophage from March 1, because she did not have the money. Tr. 292.
On March 6, 1996, Taylor-McIntosh examined plaintiff for a workers' compensation injury to her lower back. Tr. 291. Plaintiff stated that at approximately 7:30 a.m. on March 4, 1996, she had injured her back when she "bent wrong" while lifting a patient at work. Id. March 5 was plaintiff's day off and when she returned to work on March 6 and began lifting patients, plaintiff noticed lower back pain. Id. Plaintiff described her pain as a deep ache that "grind[ed]" when she walked and was aggravated by lifting and certain positions such as turning in bed. Id. Taylor-McIntosh found point tenderness over L4 and L5. Id. Plaintiff reported that the pain radiated in a linear horizontal manner across bilat buttocks. Id. Plaintiff experienced discomfort with extension and leg raising exercises. Id. Taylor-McIntosh prescribed an x-ray to the lumbar spine, naprosyn, rest and alternating heat and ice to the lumbar area. Id. Taylor-McIntosh advised plaintiff to remain off work until March 8. Tr. 290.
On March 7, 1996, Dr. Stephen J. Tempero read the x-rays of plaintiff's lumbar spine. He opined:
There is Schmorl node deformity of T12, L1, and L2 in the superior aspect of each of those vertebral bodies. There is very slight anterior placement of L5 on S1 which may be due to degenerative changes of the posterior elements of L5 and S1 or could be due to spondylolysis of the posterior elements of L5. Oblique films of the lumbar spine would be needed for further evaluation of the possibility of spondylolysis of L5. There is some very mild levoscoliosis of the lumbar spine.
Tr. 331.
On March 8, 1996, Taylor-McIntosh re-examined plaintiff. Taylor-McIntosh reported the following regarding the x-ray films:
There is schmorl node deformity of T12, L1, and L2. There is also some anterior displacement of L5 of S1. This was contributed to possible degenerative changes. Spondylolysis noted as another possibility. Mild levoscoliosis also noted of the lumbar spine.
Tr. 289. Taylor-McIntosh concluded that plaintiff's lumbocacral strain was possibly aggravated by degenerative changes of the spine. Id. She prescribed naprosyn and flexeril and topical heat several times per day. Id. Taylor-McIntosh advised plaintiff to return in a week and to remain off work. Tr. 288-89.
On March 15, 1996, Taylor-McIntosh examined plaintiff's back again. Tr. 287. Plaintiff reported that she was doing recommended back exercises, but that she had increased stiffness in her back and could not stand for any length of time without discomfort. Id. Plaintiff stated that she avoided putting pressure on the hip area and that she had a "grinding" sensation with ambulation. Id. During the exam, plaintiff leaned to the left of the chair in order to reduce her discomfort. Id. Taylor-McIntosh noted that the injury had not improved and ordered a CAT Scan of the lumbosacral spine area. Tr. 286-87.
On March 18, 1996, plaintiff visited Taylor-McIntosh to follow up on her diabetes management. Tr. 283. Plaintiff reported that she was watching concentrated sugars in her diet, but that she had not been able to exercise after her back injury. Id. Taylor-McIntosh recommended that plaintiff continue with the same levels of insulin and glucophage and counseled her on the importance of a diabetic diet. Id.
On March 19, 1996, Dr. John D. Gay, M.D., Jefferson County Memorial Hospital, prepared an x-ray report of plaintiff's lumbar spine. Tr. 329. He concluded:
Bilateral spondylolysis at L5 with spondylolisthesis of L5 on S1. The amount of forward slippage of L5 seems to be greater than it was on the lumbar spine x-rays of 3-6-96. This suggests the possibility of instability.
Id.
On March 22, 1996, plaintiff saw Taylor-McIntosh again. Tr. 281-82. Plaintiff reported no improvement in her back. Tr. 281. In addition, plaintiff reported a "dead" sensation in the right lateral aspect of her right lower extremity which occurred after sitting in the car for 30 minutes and was promptly relieved with walking. Id. In reviewing the range of motion in plaintiff's back, Taylor-McIntosh noted:
there is guarding against extension. This occurs with slight extension. She has flexion without discomfort to 90 degrees. She has some discomfort with right lateral flexion, but not left lateral flexion. She does not have discomfort with rotation. Straight leg raising exercises, right leg raising elicits low back pain. No back pain with left straight leg raising.
Id. Taylor-McIntosh advised plaintiff to see Dr. Dale D. Dalenberg, M.D., of Leavenworth Bone Joint Surgery Clinic, P.A., for evaluation and treatment of her back pain and recommendations and consideration of the spondylolysis at L5 with spondylolitheses at L5 on S1. Tr. 282.
On March 27, Dr. Dalenberg examined plaintiff. Tr. 376-77. He assessed lumbar sprain superimposed on L5 spondylolysis with low grade spondylolisthesis. Tr. 377. He noted that plaintiff had no prior back history until her injury on March 4. Tr. 376. He further noted that plaintiff had not been in physical therapy, that she had to sit leaning over to the left to help with pain, that she had equal pain with prolonged sitting or standing, that extension was more painful than flexion, and that she did better in bed unless she had to twist. Tr. 376. Dr. Dalenberg also noted that plaintiff had a problem in her lower extremities of "some stocking distribution of numbness in her feet due to diabetes." Id. Plaintiff weighed 210 pounds and reported that she smoked 7 cigarettes a day and was trying to quit. Tr. 376-77. Dr. Dalenberg recommended physical therapy and asked her to return in three weeks. Tr. 377.
On March 29, 1996, Taylor-McIntosh met with plaintiff to follow up on diabetic management. Tr. 279. Plaintiff reported that she was following her diabetic diet, but that she was not able to exercise because of the back injury. Id. Taylor-McIntosh noted that plaintiff had not met the target blood sugars of 80-120. Id. She further noted that plaintiff's inability to exercise or work as a result of the back injury could decrease her optimal glycemic control. Id. Taylor-McIntosh counseled and encouraged plaintiff regarding following a diabetic diet, encouraged plaintiff to follow up with a dietician as needed and discouraged smoking. Id. Taylor-McIntosh increased plaintiff's glucophage and asked her to return in one month for diabetic management evaluation. Id.
On April 16, 1996, SMMC admitted plaintiff for four days for chest and arm pain. Tr. 238. A cardiac catheterization revealed mild coronary disease in the left system, with 95% stenosis in the proximal portion of the right coronary artery and possible associated thrombus. Id. The left ventriculography showed posterior basilar hypokinesis and mild anterolateral hypokinesis. Id. Doctors performed percutaneous transluminal coronary angioplasty with good angiographic result. Id. Plaintiff was discharged with instructions to follow-up with her nurse practitioner (Taylor-McIntosh) in two weeks and Dr. Thompson in six weeks. Id. Her diagnoses included unstable angina pectoris, diabetes mellitus, tobaccoism, obesity, hypertension and hyperlipidemia. Id. In addition, plaintiff "was given detailed instructions to not smoke, to eat a low-fat, diabetic diet, and to avoid strenuous activity." Id. Doctors prescribed ticlid, ecotrin, lopressor, nitroglycerin as needed for chest pain, vitamin E, lescol, insulin and glucophage. Id.
On April 24, 1996, Dr. Dalenberg noted that plaintiff continued to have moderately severe lower back pain and right buttock pain. Tr. 375. He stated that plaintiff had been in physical therapy but had a lot of exacerbation of pain with most interventions including traction. Id. He further noted that plaintiff had more pain with extension than flexion. Id. Dr. Dalenberg recommended further work up of the lumbar spine, including complete lumbar radiographs, flexion/extension lateral films and oblique films, and MRI scan of the lumbar spine. Id.
On April 25, 1996, plaintiff went to the Jefferson County Memorial Hospital emergency room with right sided chest discomfort and shortness of breath. Tr. 351. Doctors performed an extensive evaluation including cardiac enzymes, CBC, hemogolobin and hematocrit. Id. All labs were normal and she was discharged with instructions to follow up with doctors in the morning. Id. The next morning, plaintiff saw Dr. Stephanie L. Lawhorn, M.D., of Cardiovascular Consultants, Inc. Id. Plaintiff's pain had persisted through the night and remained in the morning. Id. Plaintiff reported that her discomfort increased when she lay on left or right side but did not hurt as much when she lay flat on her back. Id. Plaintiff also reported some shortness of breath with exertion. Id. Dr. Lawhorn assessed atypical chest discomfort, probably noncardiac in origin and secondary to costochondritis.() Tr. 352 She prescribed a nonsteriodal anti-inflammatory medication twice a day. Id. Dr. Lawhorn told plaintiff to call if her discomfort continued and to report to the emergency room if her pain increased. Tr. 353.
Chostochondritis is the inflammation of one or more costal cartilages, characterized by local tenderness and pain of the anterior chest wall that may radiate, but without local swelling. See Stedman's Medical Dictionary at 403.
On May 2, 1996, Dr. Mark J. Malley, M.D., of Cushing Memorial Hospital, reported the results of an MRI on plaintiff's lower back. Tr. 258. Dr. Malley narrated the following impressions:
1. No evidence of disc hernation or neural impingement.
2. Degenerative changes of apophyseal joints, lower lumbar spine.
3. Desiccation of the L4-5 and L5-S1 discs.
4. Normal appearing distal portion of the cord.
Id.
On May 3, 1996, plaintiff followed up with Dr. Dalenberg. Tr. 373. Based on test results, Dr. Dalenberg concluded that plaintiff had an L5-S1 spondylolysis with grade I spondylolisthesis, objective instability on her lumbar motion radiographs, mild instability of the L4-5 level in a compensatory fashion, an internal disk derangement at L4-5 and L5-S1 without disc herniations, and typical clinical findings consistent with instability symptoms. Id. His physical exam revealed the following:
On examination again today [plaintiff] is exhibiting typical signs of lumbar instability with relative extension tolerance but much better lexion tolerance. She is able to flex to touch her upper calves. She has a catch on arising with pain on arising from the flexed position. She achieves only 10 degrees of spinal extension with moderately severe lower back pain.
Id. He noted that plaintiff scored 58 per cent on an Oswestry low back pain disability questionnaire, which is a severely disabled category. Id. Dr. Dalenberg opted for a course of lumbar bracing. Noting that plaintiff said there was no light duty at work, he asked plaintiff to return in a month and to remain off work. Tr. 374.
On May 3, plaintiff saw Taylor-McIntosh for a diabetes follow-up. Tr. 263. At the visit, plaintiff denied any blurred vision, headaches, shortness of breath, chest pains or chest tightness. Id. Plaintiff stated that she was walking a mile in the morning and evening and that she was decreasing her fat intake and watching carbohydrates in her diet. Id. Taylor-McIntosh encouraged plaintiff to lose weight and reviewed the importance of diet and exercise in diabetic management. Id. Taylor-McIntosh suggested a dietary consultation but plaintiff declined. Id.
On May 8, 1996, plaintiff telephoned Taylor-McIntosh's office and requested medication for nightly headaches which extra strength Tylenol and Advil did not relieve. Tr. 262. Taylor-McIntosh prescribed orudis and instructed plaintiff to monitor blood sugar and insulin. Id. On May 14, 1996, plaintiff visited the office and requested prescriptions for nitroglycerin and another pain reliever which had been prescribed by a cardiologist. Tr. 261. Plaintiff reported that she had been experiencing frequent arm numbness. Id. Taylor-McIntosh prescribed a refill for the nitroglycerin and told plaintiff to obtain a prescription from the cardiologist for the pain reliever. Tr. 260.
On May 31, 1996, Dr. Thompson examined plaintiff for chest pain. Tr. 347-349. Plaintiff described a pins and needles sensation in her chest and soreness in her breast. Tr. 347. The anti-inflammatory drug prescribed by Dr. Lawhorn on April 26 had not relieved her symptoms. Id. Dr. Thompson stated that plaintiff's symptoms were "[r]emarkable for exertional dyspne and chronic tiredness." Id. He also reported the following impressions:
1. Coronary artery disease.
2. Recurrent chest discomfort. Mrs. Cozadd's chest pain is atypical, but, given the atypical nature of her previous angina, and the lack of response to nonsteriodal anti-inflammatory drugs, I am concerned that she may be having anginal symptoms again.
Tr. 348. He recommended repeated diagnostic testing, noting that
[w]e will proceed with diagnostic coronary angiogram on June 3, 1996. If this shows that the previously treated right coronary lesion is widely patent, then we should turn our attention to esophageal etiology of the patient's symptoms.
Id. Dr. Thompson noted that plaintiff requested a nicotine patch to quit smoking. Tr. 347.
On June 3, 1996, Dr. Thompson reported the results of plaintiff's cardiac catheterization with coronary angiography. Tr. 346. The angiogram showed mild coronary artery disease with continued patency at the site of the recent intercoronary stent implantation of the right coronary artery. Tr. 346. Dr. Thompson stated that he was very pleased with the findings. Id. He further stated that plaintiff's chest pain could be from esophageal etiology, and he referred her to Dr. Donald Hermans for gastrointestinal consultation. Id. He asked plaintiff to continue taking prilosec, reduce lopressor and continue insulin and other medications (including glucophage, vitamin E, lescol and aspirin). Id. On June 12, 1996, plaintiff followed up with Dr. Dalenberg regarding her back pain. Tr. 372. Dr. Dalenberg reported that plaintiff was still having severe mechanical pain and was unable to do mechanical activities. Id. He noted that her lumbar corset brace did not help. Id. He also noted that plaintiff was working on a weight loss program, that she weighed about 239 pounds, and that she continued to smoke but had cut back to 5 or 6 cigarettes per day. Id. Given her symptoms, Dr. Dalenberg suggested the possibility of lumbar fusion surgery. Id. He stated, however, that
[t]his is a decision that is going to have to be deferred because the patient recently had possible myocardial infarct in early April. Unless her cardiologist says otherwise it will probably be necessary to have her wait at least 6 months after that before she entertains any elective surgery. If she does go for elective surgery she will need cardiology clearance.
Id. Dr. Dalenberg released plaintiff to light duty work with alternating sitting and standing positions at least every 20 minutes and a 10 pound lifting restriction. Id. He asked plaintiff to follow up in three months. Id.
On August 8, 1996, Dr. Lawhorn examined plaintiff for complaints of right arm numbness, a sore left shoulder and atypical chest discomfort. Tr. 378-79. Plaintiff reported that she noticed the discomfort mainly after she had been bent over working in the garden for a period of time. Tr. 378. Dr. Lawhorn increased plaintiff's prescription for lopressor for its antianginal effect and blood pressure control. Tr. 379. She also recommended that plaintiff return for a repeat adenosine thallium stress test to rule out recurrent ischemia in the distribution of her right coronary artery and have a gallbladder sonogram to eliminate any possibility of a gallbladder source for the problem. Id. The thallium stress test showed the following results: clinical response, nondiagnostic (adenosine); electrocardiographic response, nonischemic; scintigraphic response, ischemic (mildly). Tr. 381. The combined results were consistent with mild anterolateral ischemia and mild nontransmural infarction in the inferoseptal wall. Id. The gallbaldder sonogram results were negative. Tr. 500.
On August 28, 1996, Dr. Lawhorn reported that "[t]he scintigraphic response revealed that there was no evidence of ischemia in the RCA distribution where [plaintiff] had the previous stent placed. [Plaintiff] did have some mild anterolateral ischemia in the left anterior descending artery territory which may also have been contributed to by breast artifact." Tr. 494. Dr. Lawhorn opined that plaintiff's chest discomfort was "very atypical" and was not consistent with her previous angina symptoms. Dr. Lawhorn further reported that she had stressed the importance to plaintiff that she stop smoking, lose weight and continue to adhere to a low cholesterol diet in order "to prevent further progression of the potential left anterior descending stenosis which was said to be 30% at the time of her last cardiac catheterization." Id.
On October 22, 1996, Dr. Nathan Shechter, M.D., evaluated plaintiff's complaints of disability associated with her workers' compensation lower back injury. Tr. 505-17. He noted that plaintiff's job duties as a nurse aid included lifting patients and a great deal of bending, squatting and lifting. Tr. 506. On examination, Dr. Schechter observed that plaintiff walked adequately on her heels and toes without any limp. Tr. 512. He found diffuse tenderness throughout the lumbosacral region, especially in the midline, and an increase in lumbar lordosis. Tr. 513. Plaintiff could flex to 60 degrees (normal is 90 degrees) and extend to 10 degrees (normal is 25 degrees), and her lateral flexion for both right and left was 10 degrees (normal is 25 degrees). Id. Dr. Shechter concluded that
[Plaintiff] injured her low back sustaining musculoligamentous injuries to her lumbar spine and aggravation of pre-existing degenerative changes in the low back with a spondylolisthesis. . . . [She] was given conservative treatment with bracing, medication, and physical therapy but still has signs and symptoms as described above. These soft tissue injuries are subject to remissions and exacerbations and require periodic treatment with physical therapy treatment from time to time as well as a home exercise program. Because of her degenerative condition and spondylolisthesis of the lumbar spine region, her back is more subject to stresses and strains than that of a normal back. [I believe that plaintiff] will eventually need a stabilization of her low back, namely a bone grafting with instrumentation.
* * *
[Plaintiff] should not lift more than 20 pounds maximum with frequent lifting up to 10 pounds.
Tr. 514-15. Dr. Shechter concluded that plaintiff's back injury resulted in a rating of "20 percent of the body as a whole permanent partial." Tr. 516. He further stated that plaintiff "fits into the category of light work with restrictions as previously determined as defined by the Dictionary of Occupational Titles, U.S. Department of Labor." Id.
On November 21, 1996, plaintiff saw Dr. Lawhorn for a follow up visit. Tr. 489-491. Dr. Lawhorn reported that plaintiff continued to have occasional atypical chest and arm discomfort. Tr. 489. Plaintiff stated that the discomfort lasted about an hour and that she rested until it totally abated. Id. Dr. Lawhorn noted that plaintiff "also complains of fatigue which has been present for quite some time. She states that many times she has no energy and so will find herself sleeping late in the morning and getting up for a while and sitting around and sleeping in the afternoon." Id. Dr. Lawhorn, noted however, that plaintiff denied any symptoms of sleep apnea. Id. Dr. Lawhorn further noted that plaintiff "occasionally has some shortness of breath with activity which makes her stop." Id. Plaintiff reported occasional difficulty breathing both with exertion and at rest and chronic tingling in her upper left arm. Id. At the time of the visit, plaintiff had stopped smoking for three days. Id. Plaintiff also walked 20 minutes or rode her exercise bike two times per week. Tr. 490. Plaintiff was not dieting and her weight had fluctuated up and down for the past three months. Tr. 489-90.
On February 26, 1997, SMMC admitted plaintiff for two days for chest pain. Tr. 485-88 Doctors performed cardiac catheterization, which revealed no significant progression of her coronary artery disease with only mild disease in the LAD, and the right coronary artery had no significant stenosis or evidence of restenosis at the previous stent site. Tr. 485. They concluded that an episode of GE reflux and/or spasm may have caused the discomfort. Id.
On March 5, 1997, Dr. Dalenberg performed a follow up examination on plaintiff's back. He noted that plaintiff continued to have "rather disabling low back pain without radiation in the buttocks or lower extremities." Tr. 504. He further noted that she went through a full course of conservative treatment and continued to have symptoms. Id. He stated:
[Plaintiff] was a candidate for an L5-S1 posterolateral spinal fusion. Unfortunately [she] has had several myocardial infarctions over the past 2 years. She continues to have angina and requires the use of nitroglycerine for control of that. She has recently undergone a cardiac catheterization. She is not a candidate for elective surgery at this time due to her associated medical condition.
Id. In addition to Tylenol, Dr. Dalenberg prescribed ultram for pain. He noted that she could require such medicine on a "chronic basis." Id. He also noted that plaintiff would continue on her exercise, walking and weight loss programs and should return to him as needed. Id. He concluded:
At this point I believe the patient has reached maximum medical improvement from her back strain of 1 year ago, in so far as she can improve without surgery. Until her cardiac situation is resolved, or until such time as she is able to go 6 months to 1 year without another myocardial infarction, we will not be able to do elective back surgery.
Id.
At the administrative hearing on October 29, 1997, plaintiff testified that she closely followed an 1800 calorie diet and has lost some weight as a result. Tr. 560-61. Plaintiff testified that for the last year she has been using a TENS unit turned to the highest setting 24 hours a day for back pain. Tr. 567-68, 590. She also takes over-the-counter Tylenol for back pain. Tr. 563. Plaintiff has difficulty sleeping because of pain, but her doctor has prescribed medication which helps. Tr. 577-78. Plaintiff can lift 10 pounds from a table, but her back hurts if she bends over to pick up anything from the floor, no matter what its weight. Tr. 570-71. She has not discussed bending or squatting with her doctors. Tr. 571. Plaintiff has difficulty twisting her back. Tr. 590. Plaintiff has problems with her feet swelling, which water pills do not alleviate. Tr. 581. She stated that she needs to prop her feet up to heart level at least once a day to help with swelling. Tr. 581-82. Plaintiff further testified that she needs to lie down and prop her feet up twice a day for about one to two hours to relieve back pain. Id. She said that Dr. Dalenberg instructed her to lie down two times a day, but that he did not write it down.() Tr. 582. Plaintiff further testified that she is tired most of the time and sleeps a lot as a result. Tr. 591-92.
The record is unclear whether plaintiff claims that Dr. Dalenberg instructed her to lie down with her feet propped solely for back pain, or for feet swelling as well.
Plaintiff can drive short distances, but she cannot sit long enough to drive long distances. Tr. 562-63. Her nephew helped drive her to the hearing. Tr. 562. Plaintiff walks two blocks twice a day, but because of lower back pain she has to stop every half a block to sit down. Tr. 570, 574. At home, plaintiff washes the dishes but it takes a long time because she cannot stand in the same position. Tr. 572. She does some cooking and folds laundry in alternating sitting and standing positions. Tr. 573. Plaintiff can go the grocery store alone to pick up an item or two, but her daughter does the primary grocery shopping. Id. Plaintiff goes with her daughter to the grocery store, watches television, has friends over to talk and drink coffee, goes out to eat, and attends her kids' baseball games. Tr. 573, 574, 575.
The Commissioner retained H. W. Witt, Jr., D.O., to testify as a medical expert. Dr. Witt reviewed the evidence and heard plaintiff's testimony. Tr. 593. Dr. Witt testified that plaintiff's medical records establish a possible need for back surgery, but no need to lie down or elevate her feet during the day and no basis for fatigue. Tr. 601, 616-17. Dr. Witt also testified that there was no medical basis to restrict plaintiff from lifting more than 10 pounds or to require her to alternate sitting and standing positions every 20 minutes. Tr. 603-04. Dr. Witt stated that plaintiff's lifting restriction should be 20 pounds occasionally and 10 pounds frequently and that she did not need a walking restriction. Tr. 605, 615. He further opined that plaintiff could crawl and stoop occasionally but not frequently and that she could climb stairs without limitation, but that she should avoid any type of heavy vibratory machines and extreme cold. Tr. 605-06, 615-16.
The Commissioner also retained Jerold Hildre to testify as a vocational expert. Hildre testified that plaintiff worked as a certified nurse assistant, cook and manager/assistant manager in the fast food industry at the heavy level, and as a laborer mowing grass at the medium, unskilled level. Tr. 645-46. The Commissioner asked Hildre to consider the following hypothetical:
a young lady who is 33 to 36 years of age with a limited education, the work background that [Hildre] described, who is diabetic . . . [and] is taking insulin. . . .She follows an 1800-calorie diet. She's lost . . . approximately 36 pounds of weight . . . [a]nd her blood sugars are running within the relatively normal range. She has a longstanding history of coronary artery disease. She had a myocardial infarction or what you and I call a heart attack in April of '95 requiring an angioplasty. Exactly a year later, she had a second angioplasty with a stint placed in one of the coronary arteries. No restrictions have been placed on her with respect to her cardiovascular impairment apparently by her cardiologist. . . . She's hypertensive. There's no evidence of any end-organ damage but her hypertensive disease is not optimally controlled. She has hyperlipidemia. That, too, is not a debilitating condition vis-a-vis lifting, standing, walking, things of that nature. And, of course, she has low back pain and has [had] it for approximately a year-and-a-half resulting from a March 1996 on-the-job injury. . . .She can sit and stand alternately about 30 minutes each, but would have to alternate these positions. She has no problem handling objects within the ten-pound range on a table or bench. And she could lift and carry those without difficulty 15 feet as long as she did not have to bend over and pick them up off the floor. Bending would be very difficult. . . . She could occasionally stoop but not frequently. She could infrequently climb stairs. She can walk maybe a block at a time on a level surface . . . but she couldn't do that continually throughout the day. Of major import (Phonetic) is the fact that she would require a sit/stand option. She has no mental or emotional impairment. . . .She could occasionally crawl. She should avoid any type of strong vibratory situation. And she should avoid extreme cold temperatures. Pushing and pulling with the upper extremities or operation of any kind of consequential foot pedals would be contraindicated, any rotary movement of the spine itself, primarily twisting and turning variety would be contraindicated. And reaching above the head would be contraindicated all because of her back condition.
Tr. 646-48. Based on the hypothetical, Hildre testified that plaintiff could work as a job solicitor; order clerk, room service; information clerk; and surveillance system monitor. Tr. 649. Based on Hildre's testimony, the ALJ concluded that a significant number of jobs existed in the national economy which plaintiff could perform. Tr. 34.
Standard of Review
The ALJ's decision is binding on the Court if supported by substantial evidence. See 42 U.S.C. § 405(g); Dixon v. Heckler, 811 F.2d 506, 508 (10th Cir. 1987). The Court must determine whether the record contains substantial evidence to support the decision and whether the ALJ applied the proper legal standards. See Castellano v. Sec'y of HHS, 26 F.3d 1027, 1028 (10th Cir. 1994). While "more than a mere scintilla," substantial evidence is only "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). The court must scrutinize the record and take into account any evidence which fairly detracts from the evidence which supports the Secretary's findings. See Nieto v. Heckler, 750 F.2d 59 (10th Cir. 1984). Evidence is not substantial "if it is overwhelmed by other evidence — particularly certain types of evidence (e.g., that offered by treating physicians) — or if it really constitutes not evidence but mere conclusion." Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir. 1985) (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)).
Analysis
Plaintiff bears the burden of proving disability under the SSA. See Henrie v. United States Dep't of HHS, 13 F.3d 359, 360 (10th Cir. 1993); Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). The SSA defines "disability" as the inability to engage in any substantial gainful activity for at least twelve months due to a medically determinable impairment. See 42 U.S.C.A. § 423(d)(1)(A). To determine whether a claimant is disabed, the Commissioner applies a five-step sequential evaluation: (1) whether the claimant is currently working; (2) whether the claimant suffers from a severe impairment or combination of impairments; (3) whether the impairment meets an impairment listed in Appendix 1 of the relevant regulation; (4) whether the impairment prevents the claimant from continuing her past relevant work; and (5) whether the impairment prevents the claimant from doing any kind of work. 20 C.F.R. § 404.1520, 416.920 (1996). If a claimant satisfies steps one, two and three, she is disabled; if a claimant satisfies steps one and two, but not three, then she must satisfy step four. If she satisfies step four, the burden shifts to the Commissioner to establish that the claimant is capable of performing work in the national economy. See Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988).
The ALJ denied benefits at step five. At step five, the fact finder must determine whether the claimant has the residual capacity to perform other work in the national economy in view of her age, education and work experience. See Bowen v. Yuckert, 482 U.S. 137, 148 (1987). The Commissioner bears the burden of proof at step five. See id. at 146 n. 5. To meet this burden, the Commissioner must show that a claimant has the residual functional capacity (RFC) to perform jobs which exist in the national economy. See Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). Here, the ALJ found that plaintiff has
the residual functional capacity to lift and/or carry 10 pounds occasionally and frequently. She must have the ability to alternate sitting and standing positions every 30 minutes. She can walk 1 block. She should do no bending. She may occasionally stoop and crawl. She can infrequently climb stairs. She should avoid vibratory situations and extreme cold temperatures. Her ability to twist and/or turn and push and/or pull are contraindicated ( 20 C.F.R. § 404.1545).
Tr. 34. Based on vocational expert testimony, the ALJ concluded that a significant number of jobs exist in the national economy which plaintiff can perform, including telephone solicitor, order clerk, information clerk and surveillance systems monitor. Id.
I. Hypothetical Question To Vocational Expert
Plaintiff argues that the ALJ's decision is not supported by substantial evidence because his hypothetical question to the vocational expert did not include all of plaintiff's physical manifestations. Hypothetical questions must include a full description of a claimant's impairments in order for the testimony elicited by such questions to constitute substantial evidence to support the ALJ's decision. See Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991). In formulating his hypothetical question, however, the ALJ need not include any alleged limitations which he does not accept as true. See Roberts v. Heckler, 783 F.2d 110, 112 (8th Cir. 1985). Rather, the ALJ may restrict his hypothetical to those limitations which he has found to exist based upon substantial evidence in the record. See Gay v. Sullivan, 986 F.2d 1336, 1341 (10th Cir. 1993).
A. Sitting/Standing Restriction
Plaintiff asserts that in light of Dr. Dalenberg's recommendation that plaintiff should alternate sitting and standing positions every 20 minutes, the ALJ should not have found that she must alternate sitting and standing positions every 30 minutes. The Court agrees. The ALJ must give substantial weight to the opinion of a treating physician "unless good cause is shown to disregard it." Goatcher v. United States Dep't of HHS, 52 F.3d 288, 289-90 (10th Cir. 1995). When a treating physician opinion is inconsistent with other medical evidence, the ALJ's task is to examine the other physician reports to see if they outweigh the opinion of the treating physician. See id. at 290. The ALJ must give specific, legitimate reasons for disregarding the treating physician's opinion that a claimant is disabled. Id. In addition, the ALJ must consider the following specific factors to determine what weight to give any medical opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion. See id. (citing 20 C.F.R. § 404.1527(d)(2)-(6)).
The ALJ found that Dr. Dalenberg's restriction was "excessively limiting in light of the minimal frequency with which [plaintiff] has sought medical treatment." The ALJ based this finding on the fact that plaintiff did not seek medical treatment for her back between June 12, 1996 and March 4, 1997, or after March 6, 1997 through the date of his decision (December 15, 1997). Tr. 30. In reaching this conclusion, however, the ALJ failed to consider other relevant factors. Specifically, the ALJ did not consider that prior to June 4, 1996, Dr. Dalenberg, an orthopedic surgeon, provided extensive examination, testing and treatment to plaintiff over the course of four months. See Tr. 372-77. On June 4, 1996, Dr. Dalenberg opined that lumbar fusion surgery might help plaintiff, but that she would have to wait at least six months before she could consider the surgery in light of her heart condition. Tr. 372. At her follow up visit on March 5, 1997, Dr. Dalenberg found that plaintiff continued to have "rather disabling" low back pain after a full course of conservative treatment. Tr. 504. He opined that plaintiff had reached maximum medical improvement without surgery, and that she still was not a candidate for surgery in light of her heart condition. Id. Dr. Dalenberg concluded that plaintiff should return to him on a per needed basis. Id.
The only contrary evidence are the opinions of Dr. Schechter, an orthopedic surgeon who examined plaintiff to evaluate her workers' compensation disability, and Dr. Witt, the medical expert who testified at trial. Although Dr. Schechter found that plaintiff should have a weight restriction, he was silent as to a sitting/standing requirement. The record does not reflect, however, whether a sitting/standing requirement was within the scope of his examination under worker's compensation disability standards. Dr. Witt opined that plaintiff did not need a sitting/standing requirement, but Dr. Witt did not examine plaintiff.
As plaintiff's treating physician, the ALJ should have given more weight to Dr. Dalenberg's opinion. See Williams, 844 F.2d at 757 (opinions of physicians who have seen claimant over period of time for purposes of treatment given more weight over views of consulting physicians or those who only review medical records and never examine claimant). On June 4, 1996 and March 6, 1997, Dr. Dalenberg found that but for her heart condition, plaintiff was a candidate for back surgery. On March 6, 1997, he found that plaintiff had reached maximum medical improvement without surgery and that she should only see him on a per needed basis. In light of these findings, the fact that plaintiff did not seek additional medical treatment between June 4, 1996 and December 15, 1997 does not support a conclusion that Dr. Dalenberg's restrictions were excessively limiting. Thus the Court concludes that the ALJ's assumption that plaintiff was required to alternate between sitting and standing positions every 30 minutes, as opposed to every 20 minutes, is not supported by substantial evidence. Accordingly, the Court will remand the case to determine whether significant jobs exist in the national economy which plaintiff can perform with a requirement that she alternate sitting and standing positions every 20 minutes.()
The Court might be tempted to find that the 10 minute difference is not material based on other cases which find that claimants can perform similar jobs with more restrictive sitting standing options. See, e.g., Allen v. Apfel, No. 99-3249, 2000 WL 796081, *1 (10th Cir. 2000) (vocational expert testimony that claimant who must alternate between sitting and standing at will could perform jobs of cashier, information clerk, food tabulator and security monitor). The Court cannot conclude from this record, however, that the 10 minute difference is immaterial as to this plaintiff. Moreover, this is a point on which the ALJ has the burden of proof.
B. Plaintiff's Subjective Complaints
Plaintiff also argues that the ALJ should have included in the hypothetical her chest pain, her need to prop her feet during the day due to swelling, and her need to lie down during the day because of pain and/or fatigue. The Tenth Circuit has set forth the proper framework for analyzing complaints of subjective conditions.() The relevant factors are (1) whether claimant proves with objective medical evidence an impairment that causes the subjective condition; (2) whether a loose nexus exists between the impairment and the subjective condition; and (3) whether the subjective condition is disabling based upon all objective and subjective evidence. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); Luna v. Bowen, 834 F.2d 161, 163-64 (10th Cir. 1987).
In addition to disabling pain, the standard applies to complaints of other subjective conditions, including fatigue. See Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991); Jackson v. Bowen, 873 F.2d 1111, 1114 (8th Cir. 1989) (applying standard to claim of fatigue). Although plaintiff's claim that she needs to prop her feet during the day due to swelling is not necessarily a subjective condition, the Court will treat it as one since plaintiff presents no medical evidence to support such need.
Here, plaintiff has satisfied the first two factors. See Luna, 834 F.2d at 164 ("if an impairment is reasonably expected to produce some pain, allegations of disabling pain emanating from that impairment are sufficiently consistent to require consideration of all relevant evidence") (emphasis in original). Thus the ALJ must consider plaintiff's assertions regarding subjective conditions and decide whether he believes them. See id. at 163. In determining the credibility of plaintiff's testimony, the ALJ should consider such factors as:
the levels of medication and their effectiveness, the extensiveness of the attempts (medical or nonmedical) to obtain relief, the frequency of medical contacts, the nature of daily activities, subjective measures of credibility that are peculiarly within the judgment of the ALJ, the motivation of and relationship between the claimant and other witnesses, and the consistency or compatibility of nonmedical testimony with objective medical evidence.
Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988).
The ALJ found that although plaintiff's impairments may create certain pain and discomfort, they are not as limiting as she alleges. Tr. 32. In reviewing this determination, the Court should "defer to the ALJ as trier of fact, the individual optimally positioned to observe and assess witness credibility." Casias v. Sec'y of HHS, 933 F.2d 799, 801 (10th Cir. 1991). "Credibility is the province of the ALJ." Hamilton v. Sec'y of HHS, 961 F.2d 1495, 1499 (10th Cir. 1992). At the same time, the ALJ must explain why specific evidence relevant to each factor supports a conclusion that a claimant's subjective complaints are not credible. See Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995); but see Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000) (Kepler does not require formalistic factor-by-factor recitation of evidence). "Findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings." Id. (quoting Huston, 838 F.2d at 1133) (footnote omitted)). "In making a finding about the credibility of an individual's statements, the adjudicator need not totally accept or totally reject the individual's statements." See Social Security Ruling 96-7p, 61 Fed. Reg. at 34486. Rather, the ALJ "may find all, only some, or none of an individual's allegations to be credible." See id.
The ALJ relied on several factors. First, he noted inconsistencies in the record between plaintiff's claims and her recreational activity level. Tr. 28-29. Specifically, he noted that despite plaintiff's claims that she cannot walk more than one block or sit or stand for more than 20 minutes, reports in the medical records indicate that plaintiff walked two miles on a daily basis (Tr. 263), rode her stationary bike twice weekly (Tr. 490), worked in the garden (Tr. 378) and assisted with painting her house (Tr. 222).() Tr. 28-29. The record supports this conclusion. See, e.g., Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995); Wiley v. Chater, 967 F. Supp. 446, 450-51 (D.Kan. 1997). In addition, the ALJ placed significant weight on the fact that no physician has opined that plaintiff is disabled. See Luna, 834 F.2d at 165-66 (lack of objective medical evidence to support degree of pain alleged by claimant is important factor to consider in evaluating claim of disabling pain). Indeed, no doctor has opined that plaintiff's heart condition restricts her ability to work in any way. In fact, plaintiff testified that she takes medication for chest wall pain, see Tr. 578-79, and she does not claim that the medication is ineffective. See Dixon, 811 F.2d at 508 (condition that can be controlled with medication cannot serve as basis for disability). Likewise, although the medical evidence establishes that plaintiff complained to treating physicians about swelling and fatigue, no doctor has stated that she is required to prop her feet or lie down during the day. See Luna, 834 F.2d at 165-66; see also Talley v. Sullivan, 908 F.2d 585, 587 (10th Cir. 1990) (medical records must be consistent with nonmedical testimony as to severity of pain). Finally, the ALJ found that plaintiff's poor work history (plaintiff had no earnings from 1982 through 1985 and nominal earnings in 1986, 1991 and 1993) detracted from her credibility. This factor also supports the ALJ's credibility determination. See Bean, 77 F.3d at 1213 (10th Cir. 1995) (plaintiff's poor work history relevant to credibility of subjective complaints).
Plaintiff also challenges the ALJ's assumption that she can walk a block at a time. The references in medical reports support the ALJ's determination, however, and the Court defers thereto. See Casias v. Sec' of HHS, 933 F.2d 799, 801 (10th Cir. 1991) (court should "defer to the ALJ as trier of fact, the individual optimally positioned to observe and assess witness credibility").
Based on this record, the Court concludes that substantial evidence supports the ALJ's credibility determination.() Thus the ALJ did not err in omitting plaintiff's subjective complaints in his hypothetical question.() See Roberts, 783 F.2d at 112.
Plaintiff contends that the ALJ improperly determined that her failure to follow prescribed treatment regarding diet, weight control and smoking habits is inconsistent with her complaints of disabling impairments. See Tr. 29. Specifically, plaintiff claims that the evidence does not support a finding of non-compliance and that the ALJ should not have relied on non-compliance because he did not find that she would have been able to work had she changed her behavior. The Court does not address this argument because substantial evidence supports the ALJ's credibility determination regardless whether plaintiff has been non-compliant.
Plaintiff also argues that the ALJ should not have assumed that plaintiff takes primarily Tylenol for her back pain when she has received prescriptions for various pain medications. Plaintiff's testimony at the hearing, however, supports the ALJ's assumption. See Tr. 563. Moreover, while medication levels and their effectiveness are relevant to the ALJ's determination whether pain is disabling, see Huston, 838 F.2d at 1132, plaintiff fails to show how such evidence would impact the vocational expert testimony regarding the availability of suitable jobs.
II. Job Qualifications
Finally, plaintiff asserts that her limited education is inconsistent with the jobs which the vocational expert identified. Specifically, plaintiff asserts that according to the Dictionary of Occupational Titles (DOT), the jobs identified by the vocational expert require higher levels of General Educational Development (GED) than plaintiff's capabilities. See Dictionary of Occupational Titles — Volume I (U.S. Dept. of Labor, 1991), job solicitor, DOT 299.357-014: Reasoning (R) 3, Mathematical (M) 3, Language (L) 3; order clerk, room service DOT 209.567-014: R3, M1, L2; information clerk, DOT 237.367-022: R4, M2, L3; surveillance system monitor, DOT 379.367-010: R3, M1, L3. The record establishes, however, that plaintiff has held jobs in the past with GED levels at or in excess of the job which the vocational expert identified. See, e.g., food-service supervisor, DOT 319.137-010: R4, M3, L3; nurse assistant, DOT 355.674-014: R3, M2, L2. Thus, substantial evidence supports the ALJ's decision in this regard.
IT IS THEREFORE ORDERED that the case is REVERSED and REMANDED under sentence four of 42 U.S.C. § 405(g) with instructions to the Commissioner to determine whether a significant number of jobs exist in the national economy which plaintiff can perform with a requirement that she alternate sitting and standing positions every 20 minutes.