Opinion
Civil Action No. 99-3038 Section "N"
June 11, 2001
ORDER AND REASONS
Before the Court are the plaintiff Evelyn Frank's and the defendant Larry G. Massanari's cross-motions for summary judgment. For the following reasons, the plaintiff's motion is DENIED; and the defendant's motion is GRANTED.
A. BACKGROUND
In 1993, plaintiff Evelyn Frank filed an application for Social Security disability insurance benefits, alleging that she was unable to work due to back, neck and leg injuries sustained during a fall. Her application was denied initially and on reconsideration. On January 30, 1997, an Administrative Law Judge (ALJ) conducted a hearing and determined that Frank was not disabled. This determination was upheld by the Appeals Council and became the final judgment of the Commissioner of Social Security on August 25, 1999. Frank has brought the instant action for review of the Commissioner's decision.
Frank claims that the ALJ erred by (1) failing to give proper weight to the opinion of her treating physician, (2) failing to consider whether she could obtain and maintain employment, and (3) using an improper basis for denouncing the credibility of both Frank and her treating physician.
B. STANDARD OF REVIEW
Disability under the Act is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . 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). In determining whether a claimant is disabled for purposes of receiving disability insurance benefits, a five-step "sequential evaluation" is used:
1. An individual who is working and engaging in substantial gainful activity will not be found to be disabled regardless of medical findings.
2. An individual who does not have a "severe impairment" will not be found to be disabled.
3. An individual who meets or equals a listed impairment in Appendix 1 of the regulations will be considered disabled without consideration of vocational factors.
4. If an individual is capable of performing the work she has done in the past, a finding of "not disabled" must be made.
5. If an individual's impairments preclude her from performing her past work, other factors including age, education, past work experience and residual functional capacity must be considered to determine if other work can be performed.Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (paraphrasing relevant sections of the C.F.R.). "A finding that a claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis." Id. (quoting Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987)). The applicant bears the initial burden of showing that she is disabled, which means that she bears the burden of proof on the first four steps of the sequential analysis. See id. Once this initial burden is satisfied, the Commissioner bears the burden of establishing that the claimant is capable of performing work in the national economy. See id.
As noted above, the Commissioner determined that, despite her impairments, Frank is not disabled within the meaning of the Act. Judicial review of the Commissioner's final decision under the Act is limited to two inquiries: (1) whether the decision is supported by substantial evidence in the record and (2) whether the proper legal standards were used in evaluating the evidence. See 42 U.S.C. § 405 (g); Greenspan, 38 F.3d at 236. Substantial evidence "is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotingConsolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). If supported by substantial evidence, the Commissioner's findings as to any fact are treated as conclusive and must be affirmed. See id. at 390. A finding of no substantial evidence is appropriate only where no credible evidence or medical findings exist to support the decision. See Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). In applying the substantial evidence standard, the Court must scrutinize the record to determine whether such evidence is present but may not reweigh the evidence, try the issues de novo, or substitute its own judgment for that of the Commissioner's. See Greenspan, 38 F.3d at 236.
Where, as here, a claimant's pain is at issue, the Court must be mindful that "[t]he evaluation of a claimant's subjective symptoms is a task particularly within the province of the ALJ, who has had an opportunity to observe whether the person seems to be disabled." Loya v. Heckler, 707 F.2d 211, 215 (5th Cir. 1983). However, "an ALJ's unfavorable credibility evaluation of a claimant's complaints of pain will not be upheld on judicial review where the uncontroverted medical evidence shows a basis for the claimant's complaints unless the ALJ weighs the objective medical evidence and assigns articulated reasons for discrediting the claimant's subjective complaints of pain." Abshire v. Bowen, 848 F.2d 638, 642 (5th Cir. 1988).
C. LAW AND ANALYSIS 1. Dr. V. J. Zeringue
Frank first argues that the ALJ erred in rejecting her treating physician Dr. V. J. Zeringue's opinion that she is disabled and unable to work. However, although "the opinion and diagnosis of a treating physician should be afforded considerable weight in determining disability," the treating physician's opinions are not conclusive and may be assigned little or no weight when good cause is shown. Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000) (citing Paul v. Shalala 29 F.3d 208, 211 (5th Cir. 1994) and Greenspan, 38 F.3d at 237).
In making this determination, the ALJ must evaluate the treating physician's opinion by a number of factors set forth in 20 C.F.R. § 404.1527 (d) and must "always give good reasons in [its] notice of determination or decision for the weight [it gives the claimant's] treating source's opinion." Id. The six factors of § 404.1527 include: (1) the physician's length of treatment of the claimant, (2) the physician's frequency of examination, (3) the nature and extent of the treatment relationship, (4) the support of the physician's opinion afforded by the medical record, (5) the consistency of the opinion with the record as a whole, and (6) the specialization of the treating physician. See 20 C.F.R. § 404.1527.
Applying these criteria to the case at bar, the Court finds that substantial evidence supports the ALJ's determination that Dr. Zeringue's opinions concerned only short-term ailments and that his diagnosis of disability was inconsistent with the medical evidence as a whole. The ALJ discounted Dr. Zeringue's opinion that Frank was disabled for several specific factual reasons. First, Dr. Zeringue concluded that Frank was in too much pain to work, despite Frank's statements that her pain was "tolerable," see Tr. at 331, and that swelling and soreness of her left leg occurred only occasionally. See Tr. at 208. The Court finds that these statements bolster the ALJ's decision to discount Dr. Zeringue's assessment of Frank's pain and to reject his diagnosis of cellulitis in her left leg. The ALJ's decision to reject Dr. Zeringue's conclusion is further supported by the September 1994 diagnosis of Dr. Robert Mipro, who determined that Frank was unable to perform heavy manual labor or walk long distances but was not disabled from all work. Finally, in January 1996, Dr. John Nitsche found that Frank could lift up to twenty-five pounds occasionally and ten pounds frequently; that Frank would be able to stand or walk for up to six hours during the day and for an hour at a time without interruption; and that her abilities to sit, reach, handle, feel, push, pull, see, hear, and speak were unaffected. Accordingly, the Court does not find that the ALJ erred in deciding not to give Dr. Zeringue's opinion controlling weight.
Frank also argues that the ALJ erred in discounting Dr. Zeringue's opinion without asking him for clarification or further evidence under 20 C.F.R. § 404.15 12(e). However, the Fifth Circuit has limited the applicability of § 404.1512(e) to cases in which there is no "competing first-hand medical evidence" on which an administrative court can base its factual determination that one doctor's opinion is more well-founded than another. See Newton, 209 F.3d at 458. As discussed above, there is an abundance of competing first-hand medical evidence in the case at bar, and the ALJ could therefore freely reject the opinion of any physician when the evidence supports a contrary conclusion. See id. at 455 (citing Paul v. Shalala, 29 F.3d 208, 211 (5th Cir. 1994)).
Finally, Frank argues that the ALJ erred by discounting Zeringue's conclusion without considering the results of an MRI performed at Charity Hospital ("Charity"). Due to a delay in obtaining Frank's records from Charity, the MRI was neither considered by the ALJ nor included in the record on appeal. Frank argues that, "given the significance of the MRI results, the Appeals Council should have remanded for the ALJ to consider the treating physician's opinions in light of the MRI results." Mem. at 8. However, these MRI results are not in the record on appeal before the Court; and the Court does not find an absence of substantial evidence to support the ALJ's decision to discount Dr. Zeringue's testimony. See Greenspan, 38 F.3d at 236 (stating that a district court's review of the Commissioner's determination is limited to whether the decision is supported by substantial evidence in the record and whether the proper legal standard was used in evaluating the evidence). Furthermore, Frank gives no hints as to the contents of the MRI report, why it is significant, or why the results should change the ALJ's determination. Accordingly, the Court does not find that the ALJ erred in failing to consider the MRI before discounting Dr. Zeringue's decision.
2. Obtaining and Maintaining Employment
Frank next argues that the ALJ failed to make a determination of whether she could maintain and obtain employment. See Singletary v. Bowen, 798 F.2d 818 (5th Cir. 1986) (holding that in cases of severe mental illness, a claimant is disabled if he can perform work but not enjoy sustained employment because of his condition); Wingo v. Bowen, 852 F.2d 827. 831 (5th Cir. 1988) (holding that the ALJ must determine whether there are sufficient jobs in the national economy for which the plaintiff is realistically, rather than theoretically, capable of performing).
The Court finds that the record contains sufficient evidence to support the ALJ's determination that Frank retained the ability to sustain a job performing her past relevant work. As stated above, the ALJ accepted Dr. Nitsche's conclusion that Frank could lift 25 pounds occasionally and ten pounds frequently, stand or walk for up to an hour without interruption, and sit for six hours. In light of Frank's statements in a 1994 Disability Report and at her administrative hearing that her past clerical work required some standing and long periods of sitting, the Court finds the ALJ's conclusion that Frank could maintain her past relevant work is supported by the evidence. In addition, the Court does not find the ALJ's determination is contrary to Dr. Mipro's conclusion that Frank is unable to perform heavy manual labor or walk long distances, due to the fact that her past relevant work did not require those duties.
3. Credibility Evaluations
Finally, Frank argues that the ALJ rejected both her own testimony and Dr. Zeringue's opinions based on an irrational assessment of their credibility. First, Frank disputes the ALJ's comment that her history of unemployment "detracted from [her] credibility with regards to her statement that she would rather be working if not for her injuries." Tr. at 20-21, 89. Frank argues that her employment history is irrelevant to the ALJ's evaluation of whether her complaints of pain were legitimate. Frank also takes issue with the ALJ's conclusion that Frank must have been engaging in more physical activity than she acknowledged in her testimony because she showed no signs of muscular atrophy.
Judgment as to the credibility of the plaintiffs testimony is the province of the ALJ, see Carrier v. Sullivan, 944 F.2d 243, 247 (5th Cir. 1991); and the ALJ has a duty to make a credibility finding based on the entire record when the individual's statements are "not substantiated by objective medical evidence." 20 C.F.R. § 404.1529 and 416.929. In the instant case, the ALJ found that, despite Frank's complaints of pain after her 1993 fall, she had full range of motion of her back, left shoulder, and left leg in 1994. The ALJ also noted that Frank said she felt better in 1994 and that her complaints of pain in 1996 responded to treatment within a short period of time. See Johnson v. Bowen, 864 F.2d 340, 348 (5th Cir. 1988) (holding that an impairment which can be controlled or remedied with medication is not disabling). Taking into account the medical evidence, the ALJ's evaluation of Frank's demeanor and testimony, and the record as a whole, the Court finds that substantial evidence in the record supports the ALJ's determination that Frank's complaints of pain were not credible.
Frank also submits that the ALJ inappropriately used the fact that Dr. Zeringue was unaware that Frank had not worked during the five years before her 1993 injury to discount Zeringue's credibility. However, as discussed above, substantial evidence in the record supports the ALJ's decision not to give controlling weight to Zeringue's analysis. Accordingly, the Court finds that the ALJ properly weighed the credibility of both Frank and Zeringue.
D. CONCLUSION
For the reasons stated above, IT IS ORDERED that plaintiff Evelyn Frank's Motion for Summary Judgment is DENIED; and defendant Acting Commissioner Larry G. Massanari's Motion for Summary Judgment is GRANTED.