Opinion
Civil Action No. 00-0139, Section "A"
May 8, 2001
ORDER AND REASONS
Before the Court are cross motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. These motions were submitted on the briefs. Having reviewed the motions, memoranda, exhibits/administrative record, and the applicable law, and for the reasons detailed herein below, this DENIES claimant's Motion for Summary Judgment and GRANTS the defendant's Cross-Motion for Summary Judgment.
I. Procedural Background
Plaintiff/claimant, Clarence Drake ("Drake"), seeks judicial review pursuant to Section 405(g) of the Social Security Act (the Act) of the final decision of the Commissioner of the Social Security Administration (SSA), denying his claim for supplemental security income benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1382c(a)(3), and finding the claimant was not disabled under the Social Security Act and Regulations.
See September 19, 1997 Decision of ALJ Carl W. Sarett denying Drake's application for Supplement Security Income [Administrative Record (Adm.Rec.), 12-21].
On September 20, 1994, Drake applied for supplemental security income benefits under Title XVI of the Act, alleging disability since August 21, 1992, due to a back injury and seizures. Following initial denial the claimant filed a request for reconsideration, disagreeing with the initial determination. Following the denial of his request on reconsideration, claimant filed a request for hearing before an Administrative Law Judge, noting that he disagreed with the determination because he was disabled, and had no additional evidence to submit but wished to appear at a hearing. The hearing was conducted on August 5, 1996, and the claimant was represented by counsel, before United States Administrative Law Judge (ALJ) Carl W. Sarett. On September 19, 1997, a Notice of Unfavorable Decision along with the decision denying benefits issued.
See September 20, 1994 Application for Supplemental Security Income [Adm.Rec. 44/Exh. 1]; and October 1, 1994 Disability Report [Adm.Rec. 53/Exh. 6].
See December 2, 1994 Notice of Disapproved Claim [Adm.Rec. 46/Exh. 2]
See December 28, 1994 Request for Reconsideration [Adm.Rec. 48/Exh. 3].
See January 11, 1995 Notice of Reconsideration, finding the prior determination proper [Adm.Rec. 49/Exh. 4].
See February 14, 1995 Request for Hearing [Adm.Rec. 50/Exh. 5].
See Notice of Hearing/Transcript of Transcript of August 5, 1996 Administrative Hearing Hearing [Adm.Rec. 22-43].
See Notice of/Unfavorable Decision dated September 19, 1997 [Adm.Rec. 9-21].
On request for review, the Appeals Council concluded that there was no basis in the regulations for granting the request for review, noting that the contentions raised by claimant provided no basis for changing the ALJ's decision. Thereafter and further addressing correspondence of the claimant and additional evidence submitted to the Office of Hearings and Appeals, the Appeals Council advised the claimant that there was no basis for reopening the decision, noting that additional medical from Dr. Howell dated December 18, 1998 regarding disability on account of residuals from a post-hearing/post decision stroke were not material to the decision since the physician's statement dealt with a new impairment not considered when Judge Sarett issued his decision on September 19, 1997.
See Request for Review of the Hearing Decision [Adm.Rec. 7-8].
See November 9, 1999 Action of Appeals Council on Request for Review [Adm.Rec., at 2].
See December 28, 1999 Correspondence of Administrative Appeals Judge [Adm.Rec. 4].
The decision is ripe for judicial review. As previously mentioned, Drake and the Commissioner filed cross-motions for summary judgment arguing that issues are amenable to summary disposition as a matter of law based on the record and the applicable law.
See Plaintiff's Motion and Memorandum in Support of Motion for Summary Judgment [Fed.Rec.Doc. No. 10]; and Defendant's Reply Memorandum of Facts and Law EFed.Rec.Doc. No. 11]. There has been no request for oral argument and in any event, having reviewed the record in its entirety, the Court believes that such argument is unnecessary and would not assist the Court in the disposition of the matter, and thus it is deemed submitted for decision.
II. ALJ's Findings
The ALJ's found that although the claimant had not engaged in substantial gainful employment since onset, he was not disabled within the meaning to the Social Security Act and Regulations. [Adm.Rec. 20-21]. Notwithstanding the finding of "severe" impairments within the meaning of the regulations, at step three of the sequential analysis the ALJ found that such impairments neither singly or in combination meet or equal the criteria of any impairment described at Appendix 1, Subpart P. [Adm.Rec. 20]. The ALJ further found that the claimant has the residual functional capacity to perform sedentary and light work with no repetitive bending or lifting from the ground level, no twisting of the body, no operation of motor vehicles or dangerous machinery, and no working at unprotected heights. Finally, the ALJ concluded that based on the claimant's age, education, work experience, and residual functional capacity, there exists a significant number of entry level light or sedentary jobs existing in the national economy which the claimant was capable of performing, and thus, he was not "disabled."
The ALJ accurately described claimant's impairments which include: chest pain upon strenuous activity or strenuous physical exertion; diabetes which is neither acute nor incapacitating; minimal herniation at L4-L5 but no significant nerve root involvement or canal stenosis established by the objective medical evidence; and a history of infrequent seizure episodes controlled with Dilantin. (Adm.Rec. 13-18].
Based upon the assumption that claimant has the residual functional capacity to perform light or sedentary work with the above noted restrictions, the vocational expert, Kelly, testified at the hearing that the claimant could perform the following jobs which which exist in Louisiana in significant numbers, to wit: assembler, hand packer, non-construction laborer, and janitor, inter alia.
III. Statement of Issues on Appeal
Drake's request for judicial review argues that the Commissioner's decision, given the record as whole, is not based upon "substantial evidence." Specifically, the claimant alleges error in the following particulars: (1) that the ALJ selectively addressed the totality of the evidence, both lay and expert, and both objective and subjective evidence; (2) that the ALJ merely paid lip service to the Fifth Circuit's mandate in Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985), which requires shifting the burden of proof to the Secretary to show other jobs, that the plaintiff is capable of performing, notwithstanding the finding of a "severe" impairment pursuant to step two of the sequential analysis; (3) the ALJ failed to address the impact of claimant's pain and medications together with any side-effects on his employability; (4) the ALJ's credibility determinations were not supported by the Record, either factually or medically; and (5) the ALJ erred in failing to fully develop the record, and more particularly failing to follow the dictates of the Stone opinion. Counsel for the claimant further submits the Appeals Counsel erred in refusing to include in the record proofs of a stroke suffered by the claimant pendente lite, and in excluding such evidence of post-application/post-hearing report of disability on account of a stroke which he argues may have related back to claimant's condition prior to the hearing and prior to the issuance of the ALJ's decision in this matter.
Step five, the final step of disability determinations analysis, poses the question of whether the claimant can perform any other work [ i.e., work other than his or her past relevant work]. Only at this stage are a claimant's residual functional capacity, age, education, and past experience considered. Stone v. Heckler, 752 F.2d at 1101; 20 C.F.R. § 1520(f).
At step two of the sequential analysis the standard utilized in determining whether a claimant's impairment is severe is that: "`[A]n impairment can be considered as not severe only if it is a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education and work experience.'" Stone v. Heckler, 752 F.2d 1099, 1101 (th Cir. 1985), 20 C.F.R. § 404.1520 (c). In other words some impairments are so slight that the ability of the claimant to work can be decided without a full evaluation of vocational factors, and thus, such cases can be disposed of at an early stage.
Addressing the aforementioned arguments submitted on behalf of the claimant, the Commissioner submits that because there is substantial evidence in the record which supports the final decision, it should be affirmed. More particularly, the Commissioner argues that the record viewed as a whole indicates that the plaintiff generally enjoyed good health, had a good ability to stand, sit and walk, had good use of his arms and hands, and was thus capable of performing light and sedentary work with the additional restrictions ascribed by the ALJ. Essentially, the Commissioner argues that he carried his burden at step five of the sequential analysis and demonstrated that considering the claimant's age, education, and work experience there were a significant number of jobs available in the national and sedentary level and the claimant was capable of meeting the demands of such employment notwithstanding the fact that he could not return to his former employment as a logger. The Commissioner further points out that sedentary work involves lifting no more than ten pounds at a time, no more than two hours of walking and standing a day, and six hours of sitting a day. 20 C.F.R. § 416.967 (a). Uight work requires standing or walking for six hours out of an eight hour workday, lifting no more than twenty pounds at a time, and frequent carrying of objects weighing up to ten pounds at a time. 20 C.F.R. § 416.967 (b).
The Commissioner further submits that the medical records more than amply support the ALJ's assessment of the nature of the claimant's impairments and their effects on the claimant's ability to function, to wit: (1) the evidence showed that plaintiff's back conditions did not limit him beyond the restrictions set out in Dr. Blamphin's report, and such restrictions were adopted by the ALJ in the hypothetical posed to vocational expert (VE) Kelly; (2) as to the complaints of chest pressure/pain, which were considered by one physician as symptoms of active coronary disease, the medical evidence was that claimant's symptoms were brought on by physical exertion, such as mowing the lawn, were relieved with nitroglycerin, and otherwise most of the medical tests administered, including EKG and stress tests, yielded normal readings; (3) the evidence of record indicates that the claimant's non-insulin dependent diabetes diagnosed in 1996, was controlled by diet, and did not impact the claimant's activities in any significant manner; and (4) the totality of the evidence evinces the impression that plaintiff's seizures were well-controlled by prescription medication Dilantin, which he had taken for 15 years and had no effect on his ability to work as a logger, inter alia, prior to his back injury in 1992. The Commissioner submits that there is substantial evidence that his seizure medication, Dilantin, rather allowed him to remain employable, with certain limitations well accounted for in the ALJ's hypothetical.
The totality of the evidence regarding any heart condition, did not suggest any restrictions, other than the avoidance of jobs that involved strenuous physical labor/exertion.
The Commissioner further submits that substantial medical evidence as well as the activities engaged in by the claimant support the ALJ's credibility assessments, which credibility determinations should be accorded deference.
IV. Analysis
A. Standards of Review
The function of this Court on judicial review is limited to determining whether there is "substantial evidence" in the record, as a whole, to support the final decision of the Commissioner as trier of fact, and whether the Commissioner applied the appropriate legal standards in evaluating the evidence. See 42 U.S.C. § 405 (g); Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993); Carriere v. Sullivan, 944 F.2d 243, 245 (5th Cir. 1991); Villa v. Sullivan, 895 F.2d 1019, 1021 (th Cir. 1990); Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993)
This premise guides the Court's determination of the specific issues raised by the claimant in this case.
"Substantial evidence" is that which is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); and Spellman, 1 F.3d at 360. The evidence must be more than a scintilla but may be less than a preponderance. Id.
A district court may not try the issues de novo, reweigh the evidence or substitute its own judgment for that of the Commissioner. Ripley, 67 F.3d at 555; Spellman, 1 F.3d at 360; and Selders v. Sullivan, 914 F.2d 614, 617 (th Cir. 1990). It must, however, scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence exists to support it. Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992); Villa v. Sullivan, 895 F.2d 1019, 1022 (th Cir. 1990); Johnson v. Bowen, 864 F.2d 340, 343-44 (th Cir. 1988). Any of the findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Ripley, 67 F.3d at 554.
The Commissioner is entitled to make any finding that is supported by substantial evidence, regardless of whether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992).
B. Entitlement Disability Benefits under the Act
To be considered disabled and eligible for disability benefits under the Act, the plaintiff must show that he is unable "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 12 months." 42 U.S.C. § 423 (d)(1)(A), 1382c(a)(3) (A). The Commissioner has promulgated regulations that provide procedures for evaluating a claim and determining disability. 20 C.F.R. § 404.1501 to 404.1599 Appendices, §§ 416.901 to 416.998 (1995). The regulations include a five-step evaluation process for determining whether an impairment prevents a person from engaging in any substantial gainful activity. Id. §§ 404.1520, 416.920; Greenspan v. Shalala, 38 F.3d 232, 236 (th Cir. 1994); Moore v. Sullivan, 895 F.2d 1065, 1068 (5th Cir. 1990). The five-step inquiry terminates if the Commissioner finds at any step that the claimant is or is not disabled. Leggett v. Chater, 67 F.3d 558, 564 (th Cir. 1995)
The five-step analysis requires consideration of the following: First, if the claimant is currently engaged in substantial gainful employment, he or she is found not disabled. 20 C.F.R. § 404.1520(b), 416.920(b) Second, if it is determined that, although the claimant is not engaged in substantial employment, he or she has no severe mental or physical impairment which would limit the ability to perform basic work-related functions, the claimant is found not disabled. Id. §§ 404.1520(c), 416.920(c) Third, if an individual's impairment has lasted or can be expected to last for a continuous period of twelve months and is either included in a list of serious impairments in the regulations or is medically equivalent to a listed impairment, he or she is considered disabled per se ( i.e., without consideration of vocational evidence). Id., 404.1520(d), 416.920(d) Fourth, if a determination of disabled or not disabled cannot be made by these steps and the claimant has a severe impairment, the claimant's residual functional capacity and its effect on the claimant's past relevant work are evaluated. If the impairment does not prohibit the claimant from returning to his or her former employment, the claimant is not disabled. Id. §§ 404.1520 (e), 416.920(e). Fifth, if it is determined that the claimant cannot return to his or her former employment, then the claimant's age, education and work experience are considered to see whether he or she can meet the demands of a significant number of jobs in the national economy. If the claimant cannot meet the demands, he or she will be found disabled. Id. §§ 404.1520(f)(1), 416.920(f)(1). To assist the Commissioner at this stage, the regulations provide certain tables that reflect major functional and vocational patterns. When the findings made with respect to claimant's vocational factors and residual functional capacity coincide, the rules direct a determination of disabled or not disabled. Id. § 404, Subpt. P, App. 2, §§ 200.00-204.00, 416.969 (1994) ("Medical Vocational Guidelines").
The claimant has the burden of proof under the first four parts of the inquiry. Id. If he successfully carries this burden, the burden shifts to the Commissioner to show that other substantial gainful employment is available in the national economy, which the claimant is capable of performing. Greenspan, 38 F.3d at 236; Kraemer v. Sullivan, 885 F.2d 206, 208 (th Cir. 1989). When the Commissioner shows that the claimant is capable of engaging in alternative employment, "the ultimate burden of persuasion shifts back to the claimant. Id.; accord Selders, 914 F.2d at 618.
The Court "weigh[s] four elements of proof when determining whether there is substantial evidence of disability: (1) objective medical facts; (2) diagnosis and opinions of treating or examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) his age, education, and work history." Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995). "The Commissioner, rather than the courts, must resolve the conflicts in the evidence." Id.
C. Medical Opinions of a Treating Source.
As to medical opinions of a "treating source," the ALJ must follow the guidelines set forth in 96-2p to determine whether "controlling weight" should be given such opinions. These guidelines are: (1) the opinion must come from a "treating source;" (2) the opinion must be a "medical opinion;" (3) the treating sources medical opinion must be "well supported" by "medically acceptable" clinical and laboratory techniques; and (4) even if supported, the opinion must not be inconsistent with other substantial evidence. Even if the ALJ finds that the treating source medical opinion is not entitled to controlling weight, that does not mean that the opinion can be rejected. "Treating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 C.F.R. § 404.1527 and 416.927." (SSR 92-2p) The factors provided in 20 C.F.R. § 404.1527 and 416.927 include: (1) Examining relationship; (2) Treatment relationship, length of treatment, frequency of examination, nature and extent of relationship; (3) Supportability; (4) Consistency; and (5) Specialization.
As to medical opinions of a specialist regarding the issues, they are generally accorded more weight than the opinions of a source who is not a specialist. 20 C.F.R. § 404.1527 (d)(5), 416.927(d)(5). However, specialization is only one of several factors considered in the evaluation of medical opinions. 20 C.F.R. § 404.127 (d)(1)-(6), 416.927(d) ((1)-(6). More weight is given to opinions supported by specific explanations and clinical findings and which are consistent with the record as a whole and an ALJ need not give weight to medical opinions not supported by clinical findings. 20 C.F.R. § 404.1527 (d)(3), (4), 416.927(d)(3), (4)
Additionally, no special significance is accorded to the source of an opinion on issues reserved to the Commissioner, such as whether impairments meet or equal the requirements for impairments in the Listing. Where there is conflicting evidence regarding an issue reserved for the Commissioner, the Commissioner has the responsibility to resolve that conflict. The final decision on whether a claimant is disabled for purposes of the Act is a legal one rather than a medical one, and that determination may be made only by the Commissioner. 20 C.F.R. § 404.1527 (e)(1), (2), 416.927(e)(1), (2); see also Tamez v. Sullivan, 888 F.2d 334, 336 n. 1 (5th Cir. 1989); and Moore v. Sullivan, 919 F.2d 901, 905 (th Cir. 1990)
In summary, the Commissioner has considerable discretion in assigning weight to medical opinions and is free to reject the opinion of any physician when the evidence supports a contrary conclusion. 20 C.F.R. § 404.1527 (d)(2), 416.927(d), (e); see also Greenspan, 38 F.3d at 237 (holding that the Act empowers the Commissioner to analyze the physicians' testimony and when substantial evidence supports the ALJ's decision to disregard a physician's conclusions, that basis alone is enough to survive judicial review); Martinez v. Chater, 64 F.3d 172, 176 (th Cir. 1995); Spellman, 1 F.3d at 364; Moore v. Sullivan, 919 F.2d 901, 905 (th Cir. 1990)
The Commissioner may give less weight to a physicians opinion when the physician's opinion is so brief and conclusory that it lacks strong persuasive weight, is not supported by medically acceptable clinical or laboratory diagnostic techniques, or is otherwise unsupported by the evidence. Leggett, 67 F.3d at 566; Spellman, 1 F.3d at 364.
D. Medical Evidence.
The medical evidence in the case at bar consists of the records of Dr. Anthony Zuppardo, D.C., the North Oaks Medical Center Seventh Ward General Hospital, and the Lallie Kemp Hospital and Medical Center, along with the reports of Drs. Vincent Cephalu, A.Z. Blamphin and Nicholas Stevens.
The April 12, 1993 MRI of the lumbar spine ordered by the claimant's chiropractor, Dr. Zuppardo, revealed some central posterior herniation of the L4-5 disc and no abnormality of the upper three lumbar discs or the T12-Ll disc. [Adm.Rec 91]
Claimant's NeuroMedical Center Records recount the history of the claimant's back injury. [Adm.Rec. 145]. In August of 1992, while employed as logger with Southern Forest Service, Drake stepped into a beehive. In his effort to extricate himself from the bees which pursued him, the claimant tripped and fell over some logs and injured his back. He was transported to Seventh Ward General Hospital, treated, X-rayed and released. Thereafter he was seen by Dr. Forrest in Amite, his chiropractor Dr. Zuppardo, and subsequently Dr. Hontas.
On May 18, 1993, Dr. Hontas observed "minimal protrusion of the L4 disc" from the claimant's CT-Scan. He further found that epidural steroid injections (ESI's) did not benefit Drake and ordered and EMG and nerve conduction studies. [Adm. Rec. 142]. Dr. Hontas conducted the electrical studies and the results were "totally normal." Dr. Hontas placed the claimant on Motrin for relief of his pain, which pain was purportedly somewhat intermittent at the time. The claimant was discharged from his care, Dr. Hontas having concluded that he had nothing further to offer Drake since he had already had a functional capacity examination and work hardening. [Adm.Rec. 141].
After study of the claimant's treatment records and examination of the claimant in April of 1993, Dr. Anthony Ioppolo of the NeuroMedical Center in Baton Rouge, Louisiana, concluded that Drake's neurological examination revealed no radicular focal neurological deficits. His impression of the results of the April 12, 1993 MRI Scan, was that claimant's scan was not overly impressive but noted that it had been officially read showing central and posterior herniation at L4. He recommended some further investigation such as a myleogram or post-myleogram CAT scan. [Adm.Rec. 143]. Dr. Ioppolo further noted that the claimant had a seizure disorder, which appeared to be well-controlled by Dilantin which the claimant has taken for the previous fifteen years. The claimant was 39 years old at the time of his initial examination by Dr. Ioppolo. [Adm.Rec. 145-46]
Claimant's physical examination by Dr. Ioppolo on April 20, 1993 with the claimant standing in the erect position revealed no evidence of spasm, no tilt of the pelvis, no list of the shoulders, no flattening of the lumbar lordotic curve, and no evidence of scoliosis or curvature of the spine. [Adm.Rec. 147]. Dr. Ioppolo further observed that Drake had no difficulty flexing his back to 90 degrees. Further upon flexion, there was no evidence of scoliosis or list, no evidence of spasm and the usual reversal of the lumbar lordotic curve was present. Id. As to mobility of the back, physical examination revealed "no limitation" either upon extension or upon lateral bending to the right and left. Id.
As to the muscular system, there was no evidence of loss of substance or atrophy, no loss of functional strength, and deep tendon reflexes were equal and symmetrical in the right and left lower extremities. However straight leg raising at 90 degrees did produce pain in the right leg and there was decreased pin sensation over the right leg. Id. Dr. Ioppolo observed that Drake "appeared to be in good general health and moved around without any difficulty." [Adm.Rec. 147].
Dr. Vincent Cephalu examined the claimant in October of 1994. He noted the last time he had seen Drake (i.e., on January 2, 1991) he had presented a history of having more seizures. He was started back on Dilantin and referred to Lallie Kemp Hospital's Neurology Clinic. Dr. Cephalu concluded in October of 1994 that claimant's physical and mental examinations were "completely within normal limits." [Adm.Rec. 148]. Dr. Cephalu observed that the claimant spoke clearly, was able to hear okay, and had no mental disabilities whatsoever. Dr. Cephalu further noted that physically, the claimant "should be able to sit, stand walk, lift, carry and handle objects." Id. Dr. Cephalu concluded: "I certainly do not consider him [Drake] disabled." [Adm.Rec. 148].
Emergency room records of Lallie Kemp Hospital reveal that on July 8, 1994, the claimant ambulated to the emergency room and presented himself with a chain saw laceration to the knee, which he sustained approximately 20 minutes prior to his arrival at the emergency room. Then on October 13, 1994, he again presented himself to the emergency room stating he had a seizure and had been out of his Dilantin medication for about two weeks. Emergency records note that the claimant came in for a refill.
On November 14, 1994, the claimant who was then 41 years old, was seen by Dr. A.Z. Blamphin. Dr. Blamphin noted that the record which accompanied the claimant stated that he had a central posterior herniation of the L4-L5 disc and also, degeneration of L4-5. Drake's complaint was pain radiating into the right lower extremity to his foot with numbness and tingling. Claimant's father accompanied him to describe the seizures Drake had experienced two to six times a year.
Dr. Blamphin observed that the range of motion of the claimant's back was within normal limits, heel walking was normal, and there was no pelvic tilt or list. Upon flexion, Dr. Blamphin noted that the lumbar curvature reverses normally and that Drake was capable of bending forward from an erect sitting position on the examining table and could touch his ankles with both hands. He observed that toe walking caused back pain and that all other movements were normal. Dr. Blamphin found "no evidence of pain, swelling, redness, effusion, increased warmth or deformity of any joint." [Adm.Rec. 167]. Dr. Blamphin further reported: "Gait and station normal. Coordination good. No motor loss, weakness or atrophy. Reflexes only trace. No asphasia, paralysis." Id. Dr. Blamphin further observed that the claimant's socio-mental condition was normal. [Adm.Rec. 168]. After diagnosing claimant's seizure disorder and disc herniation with radiculopathy, Dr. Blamphin's medical assessment of function limited the claimant in only the following respects, to wit: no driving, lifting, pushing, pulling, or climbing and avoid heights. [Adm.Rec. 167-168]
The X-ray of claimant's lumbar spine on November 11, 1994 "demonstrated narrowing of the L4 interspace with minimal hypertrophic reaction compatible with degenerative disc pathology." [Adm.Rec. 169]. There was no evidence of fracture, spondylolisthesis or other disease of the spine/joints.
Lallie Kemp Hospital records further reveal that the claimant presented himself to the emergency room on August 1, 1995 complaining of back pain on the left side and sometimes on the right side and that he had experienced such pain off and on for approximately two years since a logging accident. [Adm.Rec. 173] The ER physician noted that claimant's April 12, 1993 MRI showed posterior downward herniation of the L4-L5 disc. The emergency room record further reveals that approximately five days before the emergency room visit on August 1, 1995, the claimant had attempted to accomplish heavy physical labor cutting lumber but started having severe pain. Toradol was administered in the emergency room and Drake was prescribed Tylenol #3 tablets (15) to be taken as needed for pain along with prescription of chlorzoxazone caplets (50) to be taken three times a day. [Adm.Rec. 172-173]
On October 18, 1995 Drake was seen in the Outpatient Clinic of Lallie Kemp Medical Center with low back pain. Claimant was on this occasion advised to use heat, warm soaks, massage, proper biomechanics, controlled exercising and a firm bed. Claimant was further advised to avoid prolonged standing and sitting, bending, heavy lifting, and twisting. The final diagnosis was degenerative disc disease L4-L5. [Adm.Rec. 181]
On December 29, 1995, the claimant presented himself to the emergency room of Lallie Kemp Hospital with complaints of "`pressure' type chest pain" which he had experienced since the day prior to his emergency room visit. [Adm.Rec. 176]. Tests conducted in the emergency room revealed normal sinus rhythm rate and normal P axis, PR rate and rhythm. Claimant's EKG was normal. [Adm.Rec. 175, 179]. The final diagnosis was "angina-chest pain" and nitroglycerin was prescribed. The claimant's activities were not restricted. [Adm.Rec. 176-177]
The results of claimant's January 1996 exercise test administered by a cardiologist, Dr. A. Quiroz, were normal. [Adm.Rec. 189]. Dr. Quiroz's concluded that the test was negative for ischemia, resting tracing was within normal limits, heart rate and blood pressure response were adequate, no significant ST or T wave changes, and no arrhythmia. Claimant exercised 8 minutes on the standard Bruce Protocol. The test was stopped only because of fatigue. [Adm.Rec. 189]
On February 5, 1996, the claimant was seen at Lallie Kemp Medical Center for a follow up visit regarding his chest pain. It was noted that there remained some tightness in the chest and that the claimant also complained of a cold and congestion. The plan was continue medications as directed ( i.e., nitroglycerin). The claimant was also prescribed medications to treat his congestion and cold (i.e., amoxil).
A February 14, 1996 electroencephalography test result reports the impression of a "normal waking record." [Adm.Rec. 186]. On March 6, 1996, claimant was seen in the Lallie Kemp Medical Center for follow up in connection with his complaints of seizures and chest pain. The plan was to refer Drake to cardiology for follow up. His complaint was that he runs out of breath with chest pain. [Adm.Rec. 185]
The April 24, 1996 Dental Clinic Progress Notes of the Lallie Kemp Medical Center state his last seizure was three months prior to his visit and his last angina episode was the Friday before his visit. His medications included Dilantin and Nitro. [Adm.Rec. 183]
In June of 1996, Dr. Gary Kerber conducted a Persantime stress test. The reported results were negative for ischemia but there was evidence of reversible ischemia in the apical inferior region of the left ventricular myocardium. [Adm.Rec. 244]. On July 15, 1996, Drake was seen for follow up regarding his chest pains. [Adm.Rec. 241]. The earlier result of reversible ischemia was noted along with the fact that the stress test was negative for ischemia and that the claimant's EKG and EEG were normal. [Adm.Rec. 241]. Drake was advised to continue with his medications. It was further noted that the claimant had been seizure free for approximately three to four months.
On July 23, 1996, the claimant was seen by Dr. Howell in Lallie Kemp's Neurology Clinic on account of his referral by Dr. Mauterer in the Family Clinic. He was continued on Dilantin and instructed to return in four weeks. [Adm.Rec. 240]
The claimant was seen by Dr. Mauterer in the Family Clinic of Lallie Kemp on September 11, 1996 for follow up wanting "pain pills — something with `codeine' in it." His request was denied. [Adm.Rec. 239]
On September 30, 1996, the claimant was seen in the Cardiology Clinic complaining of chest pain brought on by exertion and stress, which was relieved by nitroglycerin. [Adm.Rec. 235]. It was reported that this happened two to three times a week and lasted about 30 minutes. It is further noted that the claimant felt pressure in his chest all the time and on one occasion he felt like passing out. The diagnosis was simply chest pain. [Adm.Rec. 235]. The claimant was continued on his nitroglycerin medication and told to return in three months. [Adm.Rec. 235].
On October 19, 1996, claimant went to the emergency room of Lallie Kemp Hospital with complaints of tightness or pressure in his chest, along with shortness of breath and left arm numbness. He reported that he had taken several nitroglycerin tablets and his chest pain had subsided. Emergency room records further reflect that the claimant admitted that the nitroglycerin pills he had taken were old. The final diagnosis was angina. [Adm.Rec. 226] Claimant's October 19, 1996 EKG was considered borderline. [Adm.Rec. 227]. Diagnostic radiology reported that claimant's lungs were clear, his heart was normal in size, and pulmonary vascularity was also normal. The impression was that there were no radiographic findings of acute cardiopulmonary abnormality. [Adm.Rec. 219]
On October 21, 1996, claimant went to Lallie Kemp's emergency room complaining of pain in his mid-chest area (pressure) radiating down his left arm, which eased with nitroglycerin. He rated the pain as a "2" on a one-to-ten scale. [Adm.Rec. 222]. His EKG showed normal sinus rhythm, normal P axis rate, normal QRSD, short RR interval, ST elevation, and was otherwise a normal EKG. [Adm.Rec. 221]
On October 26, 1996 claimant was seen for a follow-up on his blood sugar level. He did not complain of chest pain and denied any other symptoms. [Adm.Rec. 218]
On December 11, 1996, the claimant returned for his three month follow up visit to the Cardiology Clinic. The record states at the outset that the patient "feels fine today." [Adm.Rec. 211]. Claimant then complained of chest pain all the time and upon exertion, which was relieved by nitroglycerin. The diagnosis was non-insulin diabetes mellitis and coronary artery disease (i.e., "NIDDM/CAD"). [Adm.Rec. 211]. The results of the claimant's December 11, 1996 EKG was borderline. [Adm.Rec. 210]. The claimant was continued on his medications, several tests were ordered, and he was told to return to the clinic in three months for follow up. The results of the Echocardiography and Doppler Echo Study ordered on December 11, 1996 were that claimant's heart was of normal dimension, cardiac valves were normal, differential studies were normal, and his Echocardiagram was similarly normal. [Adm.Rec. 207].
On December 23, 1996, the claimant was seen in the Family Clinic by Dr. Mauterer. [Adm.Rec. 198]. It is noted that the claimant has angina, his seizure disorder was controlled on Dilantin, and that his last seizure was four months ago. Claimant's December 11th diagnosis of non-insulin dependent diabetes mellitis (NIDDM) was also noted. [Adm.Rec. 198].
A prescription pad note penned by Dr. Mauterer of the Family Clinic on December 23, 1996, addressed to the "Welfare Office", requests that the claimant be seen for a disability determination because the claimant was "not working — can't afford meds." [Adm.Rec. 199]. At no time did Dr. Mauterer conclude that the claimant was not capable of working, he simply noted the fact that the claimant was not working and thus, could not afford his medications.
On January 21, 1997, the claimant visited the Neurology Clinic for follow up in connection with his seizure disorder and complained that "he threatened a seizure a couple of times when he got upset but did not have a seizure." [Adm.Rec. 205]. Then, he admitted to Dr. Howell that he missed taking his Dilantin three days before the threatened seizure and that if he felt like he was going to have a seizure, he would take an extra Dilantin. [Adm.Rec. 205]. The plan was to continue the claimant on Dilantin and have him return in two months for follow up. Id.
On January 22, 1997, claimant reported to the Cardiology Clinic because he lost his old nitroglycerin prescription and needed a new one. [Adm.Rec. 204]
On March 31, 1997, the claimant returned to the Neurology Clinic for follow up regarding his seizures. [Adm.Rec. 201]. He advised the physician the he had had no seizures since his last visit — "`not even a threat.'" Id. Again, he admitted to missing some of his medication which accounted for the low Dilantin level on his prior visit. See, Results of September 11, 1996 Test of Phentoin level [Adm.Rec. 204]. Claimant's March 31, 1997 Neurology Clinic record further reports that the claimant complained of back pain. It states that he turned wrong. It is further noted that the claimant had a history of a "bad disc." [Adm.Rec. 201].
On June 3, 1997, Drake was referred to Dr. Nicholas Stevens to evaluate his condition and for Disability Determinations. [Adm.Rec. 284]. At that time, claimant complained of low back pain that increased with walking. He further described sharp chest pain located in the mid substernal region, associated with nausea, diaphoresis but no shortness of breath, which occurred when he was cutting the grass, and which decreased with rest and Nitroglycerin. Dr. Stevens further noted that the cardiolite stress test was negative for ischemia and that he did have a normal echocardiagram. [Adm.Rec. 284]
At the time of the June 3, 1997 evaluation with Dr. Stevens, claimant's medications included Dilantin 100 mgs 3X a day for his seizure disorder, Tylox as needed for pain, Glucotrol XL 5 mgs 2X a day and Nitrostat for his chest pains. It is further noted that the claimant has never been hospitalized for any condition. [Adm.Rec. 284]. The review of systems conducted by Dr. Stevens revealed that the claimant had not had a seizure in six months, he experienced shortness of breath with walking, no GI problems, no GU problems, and that his diabetes was controlled with oral medication and the claimant did not check his sugars at home. Rheumatologically, Drake complained of some back pain. [Adm.Rec. 284]
Dr. Stevens June 3, 1997 physical examination of Drake revealed: (1) in the cardiac category, regular rhythm and rate, normal S1 and S2; (2) abdomen/extremities normal; (3) neurological exam cranial, sensory and motor intact; (4) in the lumbar category, flex anterior such that the claimant could bring his hands within 12 inches of the floor but there was some pain on extension of his lumbar spine; (5) visual acuity 20/30 both eyes; (6) EKG sinus rhythm at a rate of 55, normal axis, with nonspecific STT wave changes; and (7) normal cardio-thoracic ratio, clear lung fields, and no infiltrates noted. [Adm.Rec. 285]
On August 6, 1997, Dr. Stevens commented in letter form on the Persantine study which was negative for ischemia but did show evidence of reversible ischemia in the apical inferior region of the left ventricular myocardium, as follows: "This indicates that the patient does have active coronary disease which could result in symptoms of chest pain and angina which would typically be brought on by any physical exertion. He [Drake] did describe chest pain associated with exertion such as mowing his grass. The patient should avoid any unnecessary physical exertion that may precipitate chest pain as it could result in myocardial infarction." [Adm.Rec. 289]
E. Factual Background
At the August 5, 1996 administrative hearing, the claimant testified that in 1992 he quit his work as a logger on account of his back injury. Regarding back pain, Drake testified that "its not too bad — it comes and goes — on account of a slipped disc." [Adm.Rec. 32]. As to frequency, Drake stated his back could be fine for months at a time and then sometimes it will go out "back to back." [Adm.Rec. 33]. He explained by stating that on some occasions by the time the pain stops, his back will go out again. Drake claimed that sometimes his back pain may last four or five days. The claimant testified that he takes over-the-counter medication ( i.e., ibuprofen) for relief. He testified that the low back pain sometimes travels down one leg, or both legs, and sometimes all over his body, depending on how much it is hurting. [Adm.Rec. 34-35]. He further testified that sometimes he has tingling/numbness in his left leg. He testified that he was experiencing some tingling/numbness during the hearing because of his forty-five minute car ride from his trailer home outside of
Hammond to the hearing. [Adm.Rec. 35]. Drake could not say how long he has to sit in one position before he experiences the numbness/tingling in his left leg. Id.
As to his chest pain, Drake testified that when he pushes the lawn mower, which he has tried to do a number of times, he gets chest pain. [Adm.Rec. 31]. He further testified that sometimes he just gets chest pain, like the morning of the hearing, he just woke up with chest pain. [Adm. Rec. 31]. Drake testified that he went to Lallie Kemp several times for chest pain and once for back pain. Id. The claimant further testified that he took Nitroglycerin pills and also had Nitroglycerin patches for his chest pain. [Adm.Rec. 34]. He testified at the hearing that most recently had been using the nitro patches every day — one in the morning and one in the evening. [Adm.Rec. 34]. He explained that it eases the pain down. Id.
The vocational expert (VE), Mary Kelly, testified in connection with the residual functional capacity of the claimant to engage in gainful employment considering the claimant's age, education, and past work experience. Further assuming that the claimant had a minimally herniated disc at L4-5 and intermittent moderate back pain which would be exacerbate with strenuous physical activity, that the claimant had a history of seizures that was controlled with Dilantin and which seizures occasionally occurred when claimant failed to take his Dilantin, that the claimant could not engage in repetitive bending, lifting from the ground level, or twisting of the body, and that the claimant further should not operate motor vehicles, should not work at unprotected heights or with dangerous tools or other dangerous machinery, the VE testified that there were light and sedentary jobs in the state of Louisiana and the Gulf Coast areas available in sufficient numbers which the claimant could perform. [Adm.Rec. 36-37]. The VE testified that jobs that fit within the parameters of the hypothetical posed would include an assembler, production inspector or examiner, hand packer, and non-construction laborer.
As to the assembler position, the VE testified that in Louisiana there were 849 such jobs at the sedentary level, and 3, 890 such jobs at the light level. As to the production examiner/inspector, the VE testified that at the sedentary level there 360 jobs available, and at the light level there were 2, 682 such positions available. As to the hand packer option, the VE testified that at the sedentary level there were 34 such positions and 1,744 at the light level. Turning to the non-construction labor category, which included laundry workers, napkin and towel folder, seafood picker and poultry boner, the VE testified that there were 1,020 jobs at the sedentary level in that category and 9,796 at the light level. The VE further testified that janitors would also fit into the hypothetical, and that there were 2,702 such jobs at the light level. [Adm.Rec. 37-38]
Upon further assuming the limitations of having to alternate sitting/standing/walking, the VE testified that such an additional limitation would not affect the available sedentary positions at all. [Adm.Rec. 38-39]. As to the light level, the VE testified it would reduce the number of jobs available in the assembler and production inspector categories by one-third. She further testified as to the light level, that such additional limitation would reduce the number of jobs available in the hand packer and non-construction laborer categories by one-half. [Adm.Rec. 39]. The VE also testified that regarding all of the aforementioned jobs, that none required any prior skills.
Per claimant's counsel's cross-examination which added to hypothetical the limitations that the claimant could not engage in any prolonged standing or sitting and had to alternate positions every 30 minutes, the VE testified as follows: (1) that such additional limitation would reduce the assembler and production examiner's positions in the light category by one-half of the original figures and would not affect the sedentary category at all; (2) that it would reduce the hand packer and non-construction laborer's positions in the light category by three-fourths of the original figures stated; and (3) that it would eliminate any janitor positions and there were no janitor's positions available in the sedentary category. [Adm.Rec. 41-42]
F. Discussion of the Issues.
1. Subjective Complaints of Disabling Pain/Credibility.
Turning to the issue of the alleged failure of the ALJ to heed claimant's complaints of severe and disabling pain, the ALJ determined that overall, the medical records do not substantiate any assertion of either constant back or chest pain and that claimant's estimate of the degree of pain ( i.e., 2 on a scale of 10), is not indicative of debilitating pain. The ALJ observed that the medical records indicated that the claimant experiences chest pain primarily upon strenuous exertion such as cutting the grass. He further observed that the claimant's seizures had been and were still controlled by the prescription medication Dilantin when taken in accordance with the doctor's orders. Nitroglycerin patches/pills were effective in easing the claimant's chest pain symptoms and claimant's back pain was treated with over-the-counter nonsteroidal anti-inflammatory medication (NSAID), such as ibuprof en. Both back and chest pain were brought on by heavy physical exertion. Moreover, seizures occurred only when the claimant failed to follow his prescription regimen of Dilantin 3X a day. This Court's review of the hearing testimony, all of the claimant's medical records, and the entirety of the administrative record reveals that the ALJ's determinations find support in substantial evidence of record.
Claimant's Disability Report dated September 20, 1994, explains how his condition keeps him from working as follows: "Back hurts on exertion — has occasional seizures." [Adm.Rec. 53]. In a Supplemental Interview outline dated October of 1994, the claimant reported that he sleeps well 8 hours a night, that he could not stand or sit for a long period of time, that sometimes he cannot bend and thus sometimes requires help dressing, that he cannot do repairs on his home. [Adm.Rec. 67-70]. He further reported that he regularly visits his father, once or twice a week, and sometimes he drives. [Adm.Rec. 71] The claimant's undated Reconsideration Disability Report [Exhibit 9] states that there had been no change in his condition since he filed his claim and that there were no additional illnes or injury to report. [Adm.Rec. 73]. Claimant's statement dated October 1, 1994, notes that he does not take his Dilantin medication daily and further states that he takes it when he can afford to visit a doctor. [Adm.Rec. 77]. Claimant's wife's statement dated October 1, 1994, states to the contrary that the claimant takes his seizure medication daily. [Adm.Rec. 78] The disability examiner determined based on claimant's medical evidence and file as of November 11, 1994, that the claimant was a "medium RFC with seizure precautions." [Adm.Rec. 83, 84, 89].
The law of the Fifth Circuit is that pain reaches the level of a disabling complaint when such pain is constant, unremitting, and wholly unresponsive to therapeutic treatment. Falco v. Shalala, 27 F.3d 160, 163 (th Cir. 1994). The administrative record in this case is uniformly to the effect that claimant's conditions/symptoms, including seizures, chest and back pain, are completely responsive to therapeutic treatment. Moreover, even the claimant himself did not complain at the hearing of pain and other symptoms which were constant, unremitting, and/or wholly unresponsive to therapeutic treatment.
Specifically, the medical evidence suggests that when claimant was compliant with the orders of Dr. Howell of Lallie Kemp's Neurology Clinic in connection with taking his Dilantin medication as prescribed, he would have no seizures — not even the threat of one. When Drake failed to take his medication as prescribed and allowed the phentoin level in system to reach a low level, his seizure disorder became symptomatic.
Similarly, there is substantial evidence in the record which suggests that claimant's chest pain symptoms were relieved by the administration of nitroglycerine patches/pills, provided that such medications are not too old. Additionally, claimant's activities, including repeated attempts at strenuous labor (i.e., mowing the lawn and wielding a chain saw), are, as the ALJ concluded, entirely inconsistent with severe and debilitating low back pain with radiculopathy and/or chest pain. Substantial evidence supports the ALJ's determinations in this vein. The stress test conducted at Lallie Kemp was concluded after eight minutes only on account of claimant's fatigue and absent any complaints of low back pain with or without radiation into one or both legs.
A claimant's allegations of disabling pain may be discredited by evidence that the claimant has received only minimal medical treatment and/or has taken only occasional pain medications. That appears to be the case here in connection with claimant's "slipped" disc and/or "minimal herniation" at L4-L5.
Also, in determining whether the claimant's pain is disabling, the first consideration is whether the objective medical evidence shows the existence of an impairment which could reasonably be expected to produce the pain alleged. Medical factors which indicate disabling pain include: limitation of range of motion, muscle atrophy, strength deficits, sensory deficits, reflex deficits, weight loss or impairment of general nutrition, noticeable swelling, and muscle spasm. No such deficits were noted in the subject medical records.
The Court notes that subjective complaints of pain may be discounted if there are inconsistencies in the record as a whole. There is indeed a paucity of neurological findings in this claimant's case needed to support a finding of severe and debilitating back pain with radiculopathy.
A review of the administrative records indicates continuing treatment at Lallie Kemp's Cardiology Clinic, as well as several emergency room visits, in connection with claimant's complaints of chest pain. However, this symptomotology appeared to be wholly responsive and controlled by nitroglycerine patches/pills. Severe and disabling coronary disease was not diagnosed in Drake's case. As to any limitations regarding activities, claimant's cardiac physicians merely advised that he avoid heavy physical exertion which seemed to precipitate his episodes of chest pain.
According to the medical evidence of record, claimant's seizure disorder remained asymptomatic, when he was compliant with his prescription regimen Dilantin 100 mgs 3X a day. There is substantial evidence of record which supports the ALJ's determination that claimant's seizure episodes occurred when he was less than vigilant in following Dr. Howell's orders. The medical record reflects that the claimant admitted to not taking his Dilantin as ordered, and such admission is substantiated objective test results indicating low Phentoin levels.
The rare complaints by the claimant to his physicians memorialized in the medical records do not concern either prescription medication effectiveness or any side-effects of prescription drug treatment, but rather, its expense. The physicians' notes only indicate a problem with claimant "s compliance with prescription drug treatment and affording such treatment.
In evaluating the claimant's testimony and comparing it with prior statements and other evidence, it does not appear that the ALJ selectively read claimant's treatment records and/or ignored medical evidence which might corroborate his hearing testimony.
The ALJ articulated sound reasons for rejecting the claimant's complaints of debilitating pain and symptoms sufficient to curtail his ability to perform sedentary or light work with the restrictions noted. Even if the claimant's underlying medical impairments can be reasonably expected to produce the kind of debilitating symptoms alleged, when such symptoms are lessened, relieved, remedied, and/or controlled by treatment, and there is substantial evidence that they are in this case, such symptoms cannot support a finding of disability.
The ALJ properly considered evidence of the claimant's limitations and the claimant's daily activities, along with the medical evidence in evaluating the claimant's credibility insofar as his statements concerning his ability to engage in gainful employment.
2. The Requirement to Obtain Supplemental Information.
SSR 96-2p instructs that:
[I]n some instances, additional development required by a case — for example to obtain more evidence or to clarify reported clinical signs or laboratory findings — may provide the requisite support for a treating sources medical opinion that at first appeared to be lacking or may reconcile what at first appeared to be an inconsistency between a treating source's medical opinion and the other substantial evidence in the case record. . . .
SSR 96-2p, 61 F.R. at 33491. SSA Regulations 20 C.F.R. § 404.1512 (e) provides in pertinent part:
(e) Recontacting medical sources. When the evidence we receive from your treating physician or psychologist or other medical source is inadequate for us to determine whether you are disabled, we will need additional information to reach a determination or decision. To obtain the information, well will take the following actions. (1) We will first recontact your treating physician or psychologist or other medical source to determine whether the additional information we need is readily available. We will seek additional evidence or clarification from your medical source when the report form your medical source contains a conflict or an ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques. . . .20 C.F.R. § 404.1512 (e). Subsection (d) of § 404.1512 provides in pertinent part:
Our responsibility. Before we make a determination that you are not disabled, we will develop your complete medical history for at least the 12 months preceding the month in which you file your application unless there is a reason to believe that development of an earlier period is necessary or unless you say that your disability began less than 12 months before you filed your application. We will make every reasonable effort to help you get medical reports from your own medical sources when you give us permission to request the reports.20 C.F.R. § 404.1512 (d).
In addition to the applicable regulations, the Fifth Circuit also imposes a duty on the ALJ "`to develop the facts fully and fairly relating to an applicant's claim for disability benefits.'"
Newton v. Apfel, 209 F.3d 448, 458 (th Cir. 2000) (citing Ripley, 67 F.3d at 557 for the proposition that "if the ALJ does not satisfy his duty, his decision is not substantially justified.").
This is simply not one of those cases in which the ALJ was faced with an incomplete medical analysis or failed to obtain supplemental information. Medical determinations as to the claimant's physical limitations were apparent in the medical record, and there appears to be no inconsistencies. The ALJ's findings regarding the claimant's residual functional capacity over the period at issue in this case is predicated on a thoughtful analysis of the treatment and medical history of the claimant set forth in the administrative record.
The absence of any medical opinion that the claimant suffered from any debilitating impairment or combination of impairments is relevant and proper for consideration in this case, though not conclusive in weight. The evidentiary inference is that the claimant does not have any impairment, or combination of impairments, which are sufficiently severe to render him unable to engage in gainful employment at the light or sedentary level.
None of the claimant's treating physicians described any of his impairments in sufficiently severe terms to warrant a finding of disability within the meaning of the Social Security Act and regulations. There was no countervailing medical opinions regarding either their diagnoses, the severity of claimant's impairments, or limitations posed by such impairments.
According to Dr. Howell, claimant's neurologist, his seizure disorder was responsive to prescription drug therapy (i.e., Dilantin). According to the Cardiology Clinic's records on the claimant, his chest pains, CAD and NIDDM responded well to nitroglycerin therapy. Additionally, the records reflect that claimant's back pain with radiculopathy and chest pain became symptomatic upon heavy or strenuous physical activities such as mowing the lawn, wielding a chain-saw, and such activities were to be avoided.
The medical basis for the ALJ's functional assessment is quite apparent from the record. There appears to be no need for further inquiry with the claimant's treating physicians or further consultative examinations. The record contains physician's opinions and other medical evidence addressing both exertional or nonexertional limitations associated with the claimant's diagnosed impairments. Also, the claimant in this case worked for many years with his seizure disorder which was at all pertinent time controlled by Dilantin. To the extent that claimant's seizures caused work limitations, the ALJ properly accounted for such limitations, specifying, inter alia: (1) no working at unprotected heights; (2) no operating any motor vehicles; and (3) no working with dangerous tools or dangerous machinery. The medical record is devoid of any mention of any ill-effects in connection with prescription drug therapy administered in the claimant's case on account of any of his impairments. The claimant himself did not testify at the hearing that drugs prescribed by his treating physicians affected him adversely or curtailed his activities in any significant manner.
Under the regulations, the Commissioner is required to consider the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate pain or other symptoms. In this Court's opinion, the applicable regulations were followed in this case. There was no evidence adduced that claimant's treatment/prescription drug therapy affected his activities or would affect his ability to perform light/sedentary work in any significant manner.
20 C.F.R. § 404.1529 (c)(3) (iv); see also Crowley v. Apfel, 197 F.3d 194, 199 (5th Cir. 1999).
3. Residual Functional Capacity/VE Testimony.
Substantial evidence of record indicates that the ALJ recognized that it was the Commissioner's burden to demonstrate that the claimant had retained the functional capacity to perform sedentary/light work with the restrictions noted and there were jobs available in significant numbers that the claimant was capable of performing.
In the case at bar, the ALJ most apparently recognized that the claimant has impairments which could reasonably be expected to produce certain symptoms including, seizures, intermittent moderate back pain with or without radiculopathy upon strenuous physical exercise, chest pain upon physical exertion. It further cannot seriously disputed that the ALJ recognized that the claimant's impairments, singly and/or in combination, cause some functional limitations, both exertional and nonexertional.
The ALJ followed the applicable regulations and at step five of the analysis considered all allegations of physical and mental limitations or restrictions and made every reasonable effort to ensure the file contained sufficient evidence to assess RFC. See Social Security Ruling 96-8p.
The ALJ's assessment of the claimant's credibility is accorded great deference. Other than claimant's testimony at the hearing, the evidence of record does not suggest either that the claimant's impairments or medical treatment [which would include drug therapy] significantly interrupts the ability to perform a normal, eight-hour work day, or otherwise precludes the claimant from engaging in gainful activity at the light and sedentary levels.
The claimant in the case at bar, did not require either daily, weekly or monthly visits to physicians on account of his impairments. Rather, the evidence is to the effect that his followup visits were routinely scheduled at 3-month intervals. The few emergency room visits in the claimant's case were precipitated either by the failure of the claimant to follow his physicians' orders with respect to his prescription drug therapy and/or the fact that the claimant engaged in strenuous physical activities which were not advised.
As to any effect of Dilantin therapy on the claimant's ability to work an eight hour day, substantial evidence of record indicates that such drug therapy wrought no effect on the claimant's activities. The record is further to the effect that throughout the entirety of claimant's work history, his seizure disorder was controlled by Dilantin, and such drug therapy allowed rather than inhibited his gainful employment.
It is well-established that pain, even if not disabling, may constitute a nonexertional factor that limits the range of jobs an applicant can perform. Lawler v. Heckler, 761 F.2d 195, 198 n. 3 (th Cir. 1985). Moreover, when determining that the claimant can perform a given type of work, "the ALJ must find that the applicant can meet the job's exertional requirements on a sustained basis." Carter v. Heckler, 712 F.2d 137, 142 (th Cir. 1983). If the claimant cannot perform his past work and suffers nonexertional impairments that prevents him from performing the full range of other available work, the Secretary must produce expert vocational testimony or similar evidence to establish that jobs exist in the national economy that the claimant can perform. Id. The ALJ did so in this case.
In light of the shifted burden of proof, it was incumbent upon the ALJ to consider, and it is apparent that the ALJ did in fact consider, the claimant's pain and drug therapy as a possible factors limiting the type of work he could perform. See Lawler, 761 F.2d at 199 n. 3.
To recap, the ALJ did find that the claimant experienced some pain traceable to objective medical evidence as revealed by the diagnoses of minimal herniation at L4-5 causing intermittent moderate back pain which was treated with over-the-counter NSAIDs, that his seizure disorder was controlled by Dilantin and became symptomatic when the claimant failed to take his medication as prescribed, that his non-insulin diabetes mellitis was controlled by diet, and that his chest pains sometimes precipitated by heavy physical exertion was controlled with nitroglycerin therapy.
Under the Secretary's interpretive guidelines, once a medically determinable physical impairment is documented, the effects of pain must be considered at each step of the sequential process. See SSR
88-13. When evaluating the claimant's complaints at step five, the ALJ must give full consideration to all of the available evidence, medical and other, that reflects on the impairments and any attendant limitations of function. The RFC assessment must describe the relationship between the medically determinable impairments and the conclusions of RFC which have been derived. The record adequately reflects that such was in fact accomplished in this case.
An ALJ has the discretion to evaluate credibility and to arrive at an independent judgment regarding pain as well as the duty to ultimately determine disability on the basis of the claimant's RFC to engage in gainful employment. The ALJ did so in this case considering the medical findings, including medical findings regarding the claimant's limitations and/or lack thereof, and all of the other evidence, including the claimant's activities, which bear on the true extent of the pain and limitations alleged.
It is noteworthy that in the latter half of the claimant's medical records, his minimal herniation at L4-5 with accompanying intermittent moderate pain was neither the focus of any medical attention and/or was considered of little clinical significance. The ALJ's hypothetical took into account all limitations supported by substantial evidence and caused by either claimant's heart and back conditions, and/or his diagnosed seizure condition and/or noninsulin dependent diabetes mellitis.
4. New Evidence.
The Court now turns to claimant's argument that the Appeals Council erred in failing to incorporate a notice from Dr. Howell dated December 14, 1998, indicating that post-hearing and postdecision the claimant suffered a stroke and disability on account of residuals of the stroke. Claimant submits that the Appeals Council applied an improper standard. The Appeals Council denied claimant's request to reopen his case on the basis of new and material evidence, finding that Dr. Howell's statement of December 14, 1998 regarding a post-hearing/post-decision residual disability on account of a stroke suffered by the claimant deals with a new impairment and thus, was not material to the ALJ's decision which issued on September 19, 1997.
See Claimant's Memorandum in Support of Motion for Summary Judgment, at ¶ VI.
See Appeals Council's Letter to Claimant dated December 28, 1999. [Adm.Rec. 4].
"`In order to justify a remand, the evidence must be (1) new, (2) material, and (3) good cause must be shown for the failure to incorporate the evidence into the record in a prior proceedings.'" 42 U.S.C. § 405 (g) provides in pertinent part that a court may remand to the Secretary and order consideration of additional evidence "upon a showing that there is new evidence which is material and that there is good cause for failure to incorporate such evidence into the record in a prior proceeding." Id.
Leggett v. Chater, 67 F.3d 558, 567 (th Cir. 1995) (citing Bradley v. Bowen, 809 F.2d 1054, 1058 (th Cir. 1987)).
Dr. Howell's notice regarding residuals of stroke suffered post-hearing and post-decision is considered new evidence. However, for such new evidence to be material, there must exist a reasonable possibility that it would have changed the outcome of the Secretary's determination. Chaney v. Schweiker, 659 F.2d 676, 679 (5th Cir. 1981)
The requirement of materiality is an important one, and in this case it is on the basis of lack of materiality that the Appeals Council decided that there was no basis to reopen the decision, explaining that Dr. Howell's notice addressing a new impairment [i.e., stroke] was not considered when the ALJ issued his decision on September 1997. The concept "material" suggests that the new evidence must be relevant and probative.
Even if relevant and probative, not every discovery of new evidence will justify a remand, for some evidence is of limited value and insufficient to justify the administrative costs and delay of a new hearing. Thus, remand is not justified if there is no possibility that it would have changed the outcome of the Secretary's determination.
"In addition, the new evidence must also pertain to the contested time period and not merely concern a subsequently acquired disability or the deterioration of a condition that was not previously disabling." The evidence at issue in the case consists of a notice of disability on account of a stroke, a condition which occurred and/or developed far outside of the period in which the claimant applied for and was denied benefits. Falco v. Shalala, 27 F.3d 160, 164 (th Cir. 1994). Drake offers no evidence that his current physical disability did not either subsequently develop after his initial application or that it was not the result of the deterioration of a condition that was not previously disabling.
Leggett v. Chater, 67 F.3d 558, 567 (5th Cir. 1995).
Id.
In the case at bar, the claimant fails on his burden of providing good cause for the absence of this evidence and this Court denies his request for remand. The appropriate action regarding these facts [i.e., alleged disability on account residuals of a post-application, post-hearing, and post-decision stroke] is the option to utilize such evidence as the basis for a new disability application. Falco, 27 F.3d at 164 n. 20.
Accordingly and for all of the above and foregoing reasons, including that the ALJ's decision is supported by substantial evidence and consistent with applicable regulatory criteria,
IT IS ORDERED that Commissioner's Motion for Summary Judgment is GRANTED and his decision is AFFIRMED.
IT IS FURTHER ORDERED that the Claimant's Motion to Remand and/or for Summary Judgment is DENIED.