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finding that the ALJ followed the procedure that the rule recommends by consulting a VE to determine whether there were occupations that the claimant could perform despite an inability to stoop, and that based on the VE's testimony, a finding that she was disabled was not required
Summary of this case from Wilbon v. BerryhillOpinion
CIV 05-0803 WPL.
July 13, 2006
MEMORANDUM OPINION AND ORDER
Teresita Luevano applied for Social Security disability insurance benefits on October 18, 2002, claiming that she became disabled because of a broken knee. (Administrative Record (AR) 14-15.) Following an adverse decision by the Commissioner of Social Security (Commissioner), she brought an action for review in this Court. (Doc. 1.) Luevano argues that the decision of the Administrative Law Judge (ALJ) is not supported by substantial evidence in the record. (Doc. 8 at 2.) Specifically, she argues that the ALJ: (1) erred in his evaluation of pain, (2) erred in finding that she was not credible, (3) erred in his evaluation of her Residual Functional Capacity (RFC), (4) failed to adequately develop the record, and (5) erred by improperly questioning the vocational expert (VE). Id. at 2-5. This matter is before me now on Luevano's motion to reverse or remand (Doc. 7) and her brief in support (Doc. 8), the Commissioner's response (Doc. 9), and Luevano's reply (Doc. 10). Having considered the briefs, pleadings, and applicable law, I will deny Luevano's motion.
PROCEDURAL BACKGROUND
Luevano filed for benefits on October 18, 2002. (AR 14, 45.) She alleged that she had become unable to work because of a broken knee she suffered on August 20, 2002. Id. at 58. ALJ Gerald Cole conducted a hearing on November 20, 2003. Id. at 281-82. ALJ Cole denied Luevano's application on January 21, 2005. Id. at 22. The Appeals Council denied review on May 27, 2005. Id. at 5.
The ALJ found that the evidence belied Luevano's claim of disabling pain. See id. at 18-19. He noted that she engaged in various daily activities, such as washing dishes, driving, cleaning the house, and shopping. Id. at 18. He also noted that her fracture was completely healed and that she could walk without crutches or a cane. Id. The consultative examiner, Dr. Nancy Alexander, had found that Luevano could do one to two hours of walking or standing in an eight-hour workday and that she should be able to be retrained and enter the workforce. Id. The ALJ also took note of the fact that Luevano took no prescription pain medication and was not currently seeing any doctors despite the availability of household income. Id. He stated that her pain was not so great as to interfere with her knitting and ceramics painting. Id. at 18-19. He found that her allegations of pain and limitation were out of proportion to the objective evidence and her testimony. Id. at 19. He further stated that her credibility was diminished by her apparent change in behavior when she was aware that she was being observed. Id.
The ALJ determined that Luevano retained the RFC to lift and carry ten pounds occasionally and less than ten pounds frequently. Id. He found that she could stand for one hour per day and sit for eight hours in an eight-hour workday, but could never kneel or stoop. Id. Accordingly, he found that Luevano was unable to return to any of her past relevant work. Id.
The ALJ determined that Luevano was "capable of performing a significant range of sedentary work as defined in 20 C.F.R. § 404.1567." Id. at 20. The ALJ noted that the VE had determined that a hypothetical worker with Luevano's relevant characteristics could work as a sewing machine operator, an eyeglass assembler, or a Christmas ornament maker. Id. Because he found that Luevano was capable of working in jobs that exist in significant numbers in the national economy, the ALJ made a finding of "not disabled." Id. Based on that finding, he ruled that Luevano was not entitled to disability insurance benefits. Id. at 20-21.
The VE's responses to the interrogatories reveal information regarding the occupations of sewing machine operator and eyeglass assembler. ( See AR 113.) It appears that she intended to include information regarding at least one more occupation on the other side of the page she was completing. See id. However, the other side of that page does not appear in the record and it is not referenced in any other response to the interrogatories.
On May 27, 2005, the Appeals Counsel denied Luevano's request for review of the ALJ's decision. Id. at 5. Luevano then filed a civil action in this court seeking review of that decision. (Doc. 1.)
FACTUAL BACKGROUND
Luevano was born in 1961. (AR 45.) She has performed several types of work, including washing dishes, cleaning houses, and agricultural work. Id. at 71-74, 295. Her most recent employment was chopping cotton. Id. at 59, 74, 289. She broke her knee at work on August 20, 2002, when she slipped and hit her knee on a ditch. Id. at 58, 135. She stopped working the same day. Id. at 58. She stated that her ability to work was limited because she could not put pressure on her leg. Id.
Diagnostic imaging performed on August 20, 2002 revealed a nondisplaced fracture of the left patella. Id. at 124. Dr. Earl Latimer examined her on August 28, 2002, finding that it was difficult to examine her because of pain. Id. at 135. He prescribed the use of a knee immobilizer for five weeks. Id. Dr. Latimer examined Luevano again on September 16, 2002. Id. at 132. He noted that the fracture was healing with some soft tissue swelling. Id. Luevano and her husband apparently had some difficulty with the knee immobilizer. See id. at 133. They "quit using the knee immobilizer . . . because they thought it was too small because there was a hole around the kneecap." Id. The proper use of the knee immobilizer was explained to them. Id.
The patella is also known as the kneecap. See STEDMAN'S MEDICAL DICTIONARY 1331 (27th ed. 2000).
Dr. Latimer noted on October 9, 2002 that the patella fracture was completely healed; it healed "anatomically." Id. at 129. He also noted that Luevano was experiencing pain and weakness. Id. He prescribed physical therapy. Id. Dr. Latimer found at Luevano's November 6, 2002 visit that she had "findings consistent with an internal derangement in her knee." Id. He reiterated, though, that her patella fracture was healed. Id.
Luevano again saw Dr. Latimer on November 18, 2002. Id. at 127. He noted that she could have "a medial meniscal tear or an increased signal in the medial meniscus," and also noted that the radiologist thought it was a medial meniscal tear. Id. Dr. Latimer stated that Luevano had "findings consistent with medial meniscal tear and also has a positive MRI." Id. He discussed arthroscopy with Luevano and stated that she wished to proceed with the surgery. Id.
The meniscus is a "crescent-shaped fibrocartilaginous structure of the knee." STEDMAN'S MEDICAL DICTIONARY at 1091.
Arthroscopy is the "[e]ndoscopic examination of the interior of a joint." STEDMAN'S MEDICAL DICTIONARY at 151.
On December 10, 2002, Luevano underwent a left knee arthroscopy and a minimal chondroplasty of the medial femoral condyle. Id. at 166. Dr. Latimer found some minimal chondromalacia of the medial femoral condyle. Id. He noted that Luevano tolerated the procedure well. Id.
Chondroplasty means "[r]eparative or plastic surgery of cartilage." STEDMAN'S MEDICAL DICTIONARY at 342. Femoral means "[r]elating to the femur or thigh. Id. at 655. A condyle is a "rounded articular surface at the extremity of a bone." Id. at 397.
Chondromalacia refers to the "[s]oftening of any cartilage." STEDMAN'S MEDICAL DICTIONARY at 341.
At a visit to Dr. James Boss on December 19, 2002, Luevano had flexion in her knee to about 100 degrees. Id. at 126. However, Dr. Boss stated that he had been informed that Luevano was not able to flex or bend her knee at all. Id. Luevano's husband stated that she had constant pain in her left knee and could not bear weight on her left side. Id. However, the doctor's report states that "[a]s the patient left, walking down the hall the length of the building, there was minimal if any limping or obvious pain noted to the left lower extremity. She, in fact, ambulated without crutches or any assistance whatsoever other than a slight limp." Id. Following a visit on January 15, 2003, five weeks after the surgery, Dr. Robert Pennington noted that Luevano stated that "the arthroscopy did not help and as a matter of fact, it is getting worse." Id. at 125. He stated that Luevano was unable to completely straighten her knee and that the "[r]ange of motion appears to be extremely painful." Id. Dr. Pennington opined that the arthroscopy was unremarkable and he was not sure what was causing her pain. Id. He noted that no meniscal tear was found during the arthroscopy. Id. He mentioned that he would like to see if Luevano could be referred for evaluation by a physiatrist for possible reflex sympathetic dystrophy (RSD). Id.
A physiatrist is "[a] physician who specializes in physical medicine." STEDMAN'S MEDICAL DICTIONARY at 1380. Reflex sympathetic dystrophy refers to "diffuse persistent pain usually in an extremity often associated with vasomotor disturbances, trophic changes, and limitation or immobility of joints." Id. at 558. It "frequently follows some local injury." Id.
Luevano saw Dr. Jack Henry on March 13, 2003. Id. at 147. He noted that Luevano "had hamstring tightness at about 40 degrees and would extend her knee, but almost had to be forced to do so." Id. Quad atrophy was very significant on the left. Id. Dr. Henry sent Luevano to physical therapy, which he believed was all that was needed at that time. Id. On April 17, 2003, Dr. Henry saw Luevano again. Id. at 145. He noted that she still had pain in her knee. Id. Also, x-rays of the knee revealed RSD. Id. Dr. Henry sent her to a pain clinic for the RSD. Id.
Dr. Nancy Alexander, who is board certified in pain medicine, examined Luevano on January 16, 2004 at the request of the Social Security Administration. Id. at 17, 262, 263. Measurements showed that the left extremity was smaller and cooler than the right. Id. at 262. The left knee appeared slightly swollen compared to the right, and Luevano "had difficulty flexing and extending the knee secondary to pain inhibition." Id. Dr. Alexander noted that Luevano was taking Tylenol. Id. In Dr. Alexander's opinion, Luevano had "a relatively clear-cut case of reflex sympathetic dystrophy or complex regional sympathetic mediated pain syndrome." Id. at 263. Dr. Alexander opined that pain management could help Luevano's condition. Id. She also stated that Luevano might very well be able to be retrained and enter the workforce again. Id. According to Dr. Alexander, with a "hand-held assistive device," Luevano could walk one to two hours in an eight-hour workday. Id. at 267. She also found that sitting was not limited. Id.
Complex regional pain syndrome is another term for reflex sympathetic dystrophy. See WebMD, Pain Management: Complex Regional Pain Syndrome, at http://www.webmd.com/content/article/100/105627.htm (last visited June 28, 2006).
At the hearing before ALJ Cole on November 20, 2003, Luevano testified that she often woke up at night because of pain in her knee. Id. at 286. In the morning, she usually tried to clean her house, but she had to sit down multiple times because of the pain. Id. She stated that she could not run or kneel, and she could not stand or walk for long periods of time. Id. at 287. She drove, did the laundry, went to the store, and visited friends. Id. at 287-88. Luevano said that she enjoyed knitting and ceramics painting. Id. at 288. When asked whether she was seeing a doctor, she stated that she couldn't get in to see one. Id. at 290. She also said that she took over-the-counter Tylenol for pain. Id. She walked with a cane to alleviate some of the pain in her knee. Id. at 290-91.
LEGAL STANDARDS
The standard of review in a Social Security case is whether the Commissioner's final decision is supported by substantial evidence and whether she applied the correct legal standards. Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). Substantial evidence is more than a scintilla; it is that evidence a reasonable mind might find adequate to support a conclusion. Id. Evidence is not substantial if it is overwhelmed by other evidence in the record or is a mere conclusion. Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The ALJ must consider all of the medical evidence and discuss evidence that detracts from or undercuts his decision. See Grogan, 399 F.3d at 1262. I must meticulously examine the record to determine whether substantial evidence supports the decision, but may not reweigh the evidence or substitute my discretion for that of the agency. Musgrave, 966 F.2d at 1374.
The Tenth Circuit has set out the process used to determine whether a claimant has a disability as follows:
In order to determine whether a claimant is under a disability, the Secretary applies a five-step inquiry: (1) whether the claimant is currently working; (2) whether the claimant suffers from a severe impairment; (3) whether the impairment meets an impairment listed in appendix 1 of the relevant regulation; (4) whether the impairment prevents the claimant from continuing his past relevant work; and (5) whether the impairment prevents the claimant from doing any kind of work.Id. (citing 20 C.F.R. §§ 404.1520, 416.920 Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988)). If the agency finds the claimant disabled or not disabled at any point in the process, the inquiry ends. Id.
If a claimant is not presently engaged in substantial gainful activity and meets the threshold showing that her impairments are severe enough to interfere with her ability to do basic work activities, then the decision maker must proceed to step three. See Williams, 844 F.2d at 751. At step three, the decision maker "determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity." Id. (quoting 20 C.F.R. §§ 404.1520(d), 416.920(d)). If so, then the claimant is entitled to benefits; if not, the inquiry proceeds to step four. Id. At step four, "the claimant must show that the impairment prevents [him] from performing work he has performed in the past." Id. (citations omitted) (alteration in original). The claimant is not disabled if she is able to perform past work. Id.
If the claimant is not able to perform past work, then she has met her burden of proof and established a prima facie case of disability. See id. The inquiry proceeds to step five, at which the burden of proof is shifted to the Secretary. Id. She must demonstrate that the claimant "retains the capacity to perform an alternative work activity and that this specific type of job exists in the national economy." Channel v. Heckler, 747 F.2d 577, 579 (10th Cir. 1984) (citing 42 U.S.C. § 423(d)(2)(A)). If the Secretary does not meet this burden, the claimant is entitled to benefits. Williams, 844 F.2d 751.
DISCUSSION Evaluation of Pain and Credibility Determination
Luevano first argues that the ALJ erred in his evaluation of pain and his credibility determination. (Doc. 8 at 2-4.) She argues that severe pain is supported by the record, and points to nine incidents in which a medical professional noted that Luevano complained of pain. See id. at 2-3. She alternatively asserts that she "has established a failed knee surgery that can only result in such pain consistent with current caselaw." Id. at 3. She further claims that the ALJ erred by treating all of her home activities as "work" and by misinterpreting her attempts at housework as household chores. See id. at 3-4.
When making a claim of disabling pain, the claimant must first prove through objective medical evidence the existence of an impairment which could reasonably be found to produce the alleged disabling pain. Hamlin v. Barnhart, 365 F.3d 1208, 1220 (10th Cir. 2004). Next, she must show that there is a loose nexus between the impairment and the subjective allegations of pain, and if so, whether considering all the evidence the pain is disabling. Id. "[D]isability requires more than mere inability to work without pain. To be disabling, pain must be so severe, by itself or in conjunction with other impairments, as to preclude any substantial gainful employment." Brown v. Bowen, 801 F.2d 361, 362-63 (10th Cir. 1986) (quotation marks and citation omitted). A claimant's subjective complaints of pain alone are insufficient to establish disability, but they must be considered in evaluating a claim based on pain. Talley v. Sullivan, 908 F.2d 585, 587 (10th Cir. 1990).
Credibility determinations are the province of the ALJ, and the reviewing court will not upset them when they are supported by substantial evidence. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). However, deference is not an absolute rule. Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993). Findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings. Kepler, 68 F.3d at 391. Kepler does not require a "formalistic factor-by-factor analysis of the evidence;" the ALJ must simply "set forth the specific evidence he relied on in evaluating the claimant's credibility." Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). Where an ALJ does not give particular reasons for discounting the claimant's credibility or gives insufficient reasons, the reviewing court is "free to view the ALJ's conclusion with a skeptical eye." See Talbot v. Heckler, 814 F.2d 1456, 1461 (10th Cir. 1987) (internal quotation marks and citation omitted).
A lack of objective corroborative evidence alone is insufficient to support a credibility determination. Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004). An ALJ may consider numerous factors, including the extensiveness of the attempts to obtain relief, the frequency of medical contacts, subjective measures of credibility that are peculiarly within the judgment of the ALJ, 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 gave adequate reasons to discount Luevano's credibility. See id. at 18-19. He did not make unsupported conclusions about her credibility. Rather, he based his credibility findings on specific observations from the medical records and Luevano's testimony. See id. The ALJ found that Luevano's allegations of pain were out of proportion to the objective evidence and her testimony about her activities. Id. at 19. The ALJ's decision is supported by substantial evidence.
The ALJ noted that despite Luevano's allegations of pain, "her own testimony indicates that she is able to drive, shop, cook, clean the house, and wash the dishes, although she does require the ability to sit down frequently to rest her leg." Id. at 18. Luevano argues that the ALJ mistakenly relied on her attempts at doing household work. (Doc. 8 at 4.) "[T]he ALJ may not rely on minimal daily activities as substantial evidence that a claimant does not suffer disabling pain. The sporadic performance [of household tasks or work] does not establish that a person is capable of engaging in substantial gainful activity." Thompson, 987 F.2d at 1490 (citations and quotation marks omitted) (second alteration in original). These activities therefore do not, by themselves, provide substantial evidence for the ALJ's decision. However, these activities "may be considered, along with other evidence, in determining whether a person is entitled to disability benefits." Gossett v. Bowen, 862 F.2d 802, 807 (10th Cir. 1988). The ALJ also stated that Luevano enjoyed knitting and painting ceramics, activities that "require significant attention and concentration." (AR 19.) Even assuming these recreational activities may not by themselves provide substantial evidence, they may also be considered in determining when Luevano is entitled to benefits. See Thompson, 987 F.2d at 1490.
Luevano argues that the transcript of the hearing before the ALJ reveals that she used to paint ceramics, but is no longer able to do so. (Doc. 10 at 4.) The transcript reads as follows:
Q: What kind of things do you do for recreation, for fun, just for you?
A: I knit. I paint ceramics. I used to (INAUDIBLE). I can't anymore because it's so heavy and my leg doesn't help me.
(AR 288.) Luevano seems to argue that when she stated that she "can't anymore," she was referring to painting ceramics. However, that phrase appears to refer to what it was that she used to do but which was recorded on the transcript as "inaudible." She clearly states that she "paint[s] ceramics." Luevano's argument is not convincing. The ALJ was correct in finding that Luevano painted ceramics at the time of the hearing.
The ALJ noted that Luevano's knee was completely healed. Id. at 18; see id. at 129. She was prescribed physical therapy two to three times per week for four weeks, but the record reveals only four visits. Id. at 18; see id. at 250-54. On December 19, 2002, examination revealed flexion of 100 degrees despite Luevano's claim that she could not bend or flex the knee at all. Id. at 18; see id. at 126. The ALJ pointed out that "while walking, unaware that she was being observed, the claimant showed minimal, if any, limping or obvious pain in the left lower extremity. She ambulated without crutches, a cane, or any other assistive device." Id. at 18; see id. at 126. The ALJ also credited the testimony of the consultative examiner, Dr. Alexander, who is board certified in pain medicine. Id. at 18, 263. She opined that Luevano might very well be able to be retrained and enter the workforce again. Id. at 18; see id. at 267. The ALJ referred to all of this evidence and it constitutes substantial evidence in support of his determination that Luevano was not credible.
The ALJ further noted that Luevano was not taking any prescription painkillers and was not seeing any physicians. Id. at 18; see Luna v. Bowen, 834 F.2d 161, 165 (10th Cir. 1987) ("The [person] who needs only aspirin surely feels less pain than the one requiring a much stronger drug."). Luevano argues that she was not taking prescription drugs or seeing a physician because she could not afford to do so. (Doc. 10 at 5-6.) In Crawford v. Chater, 997 F. Supp. 1387 (D. Colo. 1998), the court found that the claimant's failure to seek medical treatment was justifiable where her undisputed testimony was that she and her husband lived on her husband's social security income and she could not afford medical treatment. Id. at 1396.
There was no specific testimony that Luevano failed to take stronger medication because of her financial circumstances. It was the duty of the ALJ to inquire as to whether she could afford medical care or whether any other forms of payment were available. See Lee v. Barnhart, 117 F. App'x 674, 681 (10th Cir. 2004) (unpublished decision). While the ALJ did not raise the issue of whether she could afford medical care or medication when questioning her, counsel asked during her questioning of Luevano why she was not under medical care or taking prescription medication. (AR 292-93.) When asked why she stopped taking prescription medication, the transcript reveals that Luevano responded, "I finished it and the doctor did not (INAUDIBLE). He didn't know what was wrong." Id. at 292. Luevano also testified that she was not seeing a doctor because no doctor would see her. Id. at 292-93. When asked whether she would be under a doctor's care if she had money for insurance, she stated that she would. Id. at 293.
In his decision, the ALJ stated that "despite her complaints of disabling pain, the claimant takes no prescription pain killers and currently sees no doctors despite the availability of the household income of her husband's disability pension and Social Security disability benefits." Id. at 18. It appears that the ALJ did not credit Luevano's testimony that she could not afford medical care. He did not address her statements regarding her inability to schedule an appointment with a doctor. See Sand v. Shalala, 820 F. Supp. 1299, 1308 (D. Kan. 1993) ("[T]he ALJ failed to consider the reasons for the frequency or infrequency of medical contacts, including perhaps financial inability to obtain medical care."). In any event, there is still sufficient evidence to support the ALJ's decision even disregarding this evidence.
Luevano argues that she demonstrated a condition that "can only result in [severe] pain consistent with current caselaw." (Doc. 8 at 3.) In support, she cites Frey v. Bowen, 816 F.2d 508, 515 (10th Cir. 1987), and Luna, 834 F.2d at 164. (Doc. 8 at 3.) These cases do not stand for the proposition that her knee condition must necessarily cause disabling pain regardless of her credibility and other evidence. Objective medical evidence must demonstrate an impairment that could reasonably be expected to cause the alleged pain, but this does not automatically entitle a claimant to disability benefits. See Gossett, 862 F.2d at 806. Rather, "statements regarding the intensity and persistence of the pain must be consistent with the medical findings and signs." Id. "[I]f 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." Luna, 834 F.2d at 164. Luevano apparently identified an impairment that could reasonably be expected to cause some pain. The ALJ therefore considered all relevant evidence, concluding that Luevano's claims of pain were not consistent with the evidence. This decision is supported by substantial evidence.
Residual Functional Capacity Determination
Luevano asserts that the ALJ erred in finding that she retained the RFC to perform sedentary work. (Doc. 8 at 4-5.) "In determining a claimant's physical abilities, the ALJ should `first assess the nature and extent of [the claimant's] physical limitations and then determine [the claimant's] residual functional capacity for work activity on a regular and continuing basis.'" Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996) (quoting 20 C.F.R. § 404.1545(b)) (alterations in original). When a claimant has a severe impairment not meeting one of the listed impairments, the ALJ must consider the limiting effects of all of the impairments, even those that are not severe, in determining the RFC. See 20 C.F.R. § 404.1545(e).In determining Luevano's RFC, the ALJ relied on the opinions of the consultative examiner, Dr. Alexander. Id. at 18-19. The ALJ found that Luevano retained the RFC to lift and carry ten pounds occasionally and less than ten pounds frequently. Id. at 19. He found that she could stand for one hour per day and sit for eight hours per day, and could never kneel or stoop. Id. As the ALJ pointed out, his RFC findings comported with Dr. Alexander's assessment, which was uncontroverted by any other medical opinion in the record and consistent with the evidence. Id.
Luevano first asserts that the ALJ erred by not including pain in his RFC determination. (Doc. 8 at 4.) The RFC analysis includes both impairments and related symptoms, such as pain. See 20 C.F.R. § 404.1545(a)(1); Hamlin, 365 F.3d at 1220. "Pain, even if not disabling, is still a nonexertional impairment to be taken into consideration, unless there is substantial evidence for the ALJ to find that the claimant's pain is insignificant." Thompson, 987 F.2d at 1490-91 (citations omitted).
Luevano's argument is not persuasive. To be sure, the ALJ found that Luevano's pain was not disabling; however, he did not find that it was insignificant. He considered her allegations of pain and her credibility at length before making his RFC determination. ( See AR 18-19.) Luevano's pain was "taken into consideration" by the ALJ, see Thompson, 987 F.2d at 1490, and her assertion to the contrary lacks merit.
Luevano claims that the ALJ should have included in the record information regarding "what psychological effect pain would have on the Plaintiff and her [RFC]." (Doc. 8 at 4.) She cites for this proposition Salas v. Chater, 950 F. Supp. 316 (D.N.M. 1996), "where the Court reasoned that `a severe non exertional impairment must be considered as affecting the [RFC] to perform work.'" (Doc. 8 at 4 (quoting id. at 319).) Salas involved a claimant alleged to be suffering from " inter alia, organic brain damage, alcoholism and low intellectual functioning," id. at 319, and does not provide support to Luevano here. Luevano also cites Harkins v. Sullivan, 945 F. Supp. 1482, 1492 (10th Cir. 1991) [sic], in support of her assertion. (Doc. 8 at 4.) I can find no such case. Luevano appears to be referring to Harkins v. Sullivan, No. 85-1511-C, 1990 WL 193778 (D. Kan. Nov. 6, 1990) (unpublished decision), a case involving attorney's fees in a Social Security case which does not support her position. The ALJ properly considered pain in his determination of Luevano's RFC, relying on his credibility determination and the opinion of a pain medicine specialist. ( See AR 18-19.)
Luevano also specifically references her argument that the ALJ should have ordered a psychological exam as part of his duty to develop the record. Id. As explained in the next section, Luevano's argument that a psychological examination was required is not persuasive.
Luevano also asserts that the ALJ erroneously concluded that she "has limited ability to stand, sit, and stoop." (Doc. 8 at 4.) Her contention is not accurate. The ALJ concluded that Luevano could sit for eight hours in an eight-hour workday. (AR 19, 21.) He also concluded that she could never kneel or stoop. Id. Luevano appears to argue that the ALJ erroneously concluded that she had a limited ability, rather than a complete inability, to stoop. ( See Doc. 8 at 4-5.) However, it is clear that the ALJ found that she could never stoop. (AR 19, 21.)
Luevano appears to argue that her complete restriction on stooping requires a finding of disability. Id. at 4-5. She cites for this proposition Tyson v. Apfel, 107 F. Supp. 2d 1267, 1269 (D. Colo. 2000). (Doc. 8 at 4-5.) In that case, the court stated that Social Security Ruling 96-9p "requires a claimant who has the residual functional capacity for less than a full range of sedentary work to be considered disabled if her restrictions would significantly erode the occupational base for sedentary work." Tyson, 107 F. Supp. 2d at 1269. It also stated that "[t]he ruling specifically provides that . . . a complete inability to stoop will significantly erode the occupational base for sedentary work and require a finding of disabled." Id. at 1269-70. Social Security Ruling 96-9p provides in pertinent part:
An ability to stoop occasionally; i.e., from very little up to one-third of the time, is required in most unskilled sedentary occupations. A complete inability to stoop would significantly erode the unskilled sedentary occupational base and a finding that the individual is disabled would usually apply, but restriction to occasional stooping should, by itself, only minimally erode the unskilled occupational base of sedentary work. Consultation with a vocational resource may be particularly useful for cases where the individual is limited to less than occasional stooping.
S.S.R. 96-9p, 1996 WL 374185, at *8 (emphasis added).
I disagree that Ruling 96-9p requires a finding of disability if the claimant has a complete inability to stoop. Rather, such a finding would usually be required. See S.S.R. 96-9p. "There may be a number of occupations from the approximately 200 occupations administratively noticed, and jobs that exist in significant numbers, that an individual may still be able to perform even with a sedentary occupational base that has been eroded." Id. at *4. In Mullens v. Barnhart, 165 F. App'x 611 (10th Cir. 2006) (unpublished decision), the claimant, relying on Ruling 96-9p, argued that he should be found disabled because of his inability to stoop. Id. at 613. However, the court held that the rule did not require such a result in all cases and noted that the VE testified that there were jobs that the claimant could perform despite his limitations. Id. at 614. The court held the ALJ's analysis to be proper "[i]n light of the [VE's] testimony regarding the availability of sedentary jobs that require no stooping." Id. at 614-15.
In this case, as in Mullens, the ALJ followed the procedure that the rule recommends: consulting a VE to determine whether there are occupations that the claimant can perform despite an inability to stoop. See S.S.R. 96-9p. The hypothetical questions posed to the VE clearly stated that the worker could never stoop. ( See, e.g., AR 112-115.) The VE determined that even with the complete restriction on stooping there are sedentary occupations in the national economy that a hypothetical worker with Luevano's relevant characteristics could perform. Id. at 113. She gave at least two examples — a sewing machine operator and an eyeglass assembler — and demonstrated that these jobs exist in the national economy. Id.; see Channel, 747 F.2d at 579. Luevano's inability to stoop does not require a finding that she is disabled.
Luevano asserts that the "fundamental error in the ALJ's analysis is that no weight whatsoever was given to the Plaintiff's inability to communicate in the English language and the need to consider the GRIDS." (Doc. 10 at 2.) Because Luevano raised this argument for the first time in her reply, I will not address it. See Acker v. Burlington N. Santa Fe Ry. Co., 388 F. Supp. 2d 1299, 1302 n. 2 (D. Kan. 2005) (citing Minshall v. McGraw Hill Broad. Co., 323 F.3d 1273, 1288 (10th Cir. 2003) Coleman v. B-G Maint. Mgmt., 108 F.3d 1199, 1205 (10th Cir. 1997)).
Development of the Record
Luevano argues that the ALJ failed to adequately develop the record. (Doc. 8 at 5.) She claims that he should have ordered a psychological evaluation because of the severity of her pain. Id. She argues that the ALJ should have been aware of the need for an evaluation because she was tearful during the consultative examination and during a medical visit approximately a year later. Id.; see id. at 262, 279. She also contends that her treating physician recommended a psychological evaluation. Id.; see id. at 152.While the claimant has the burden of demonstrating that she is entitled to benefits, a social security disability hearing is nevertheless a nonadversarial proceeding. Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006). Therefore, "[t]he ALJ has a basic obligation in every social security case to ensure that an adequate record is developed during the disability hearing consistent with the issues raised." Henrie v. U.S. Dep't of Health Human Servs., 13 F.3d 359, 360-61 (10th Cir. 1993); see Madrid, 447 F.3d at 790. The ALJ's "basic duty of inquiry" requires him "`to inform himself about facts relevant to his decision and to learn the claimant's own version of those facts.'" Dixon v. Heckler, 811 F.2d 506, 510 (10th Cir. 1987) (quoting Heckler v. Campbell, 461 U.S. 458, 471, 471 n. 1 (1983) (Brennan, J., concurring)).
"The Secretary has broad latitude in ordering a consultative examination." Diaz v. Sec'y of Health and Human Servs., 898 F.2d 774, 778 (10th Cir. 1990). "[T]he ALJ should order a consultative exam when evidence in the record establishes the reasonable possibility of the existence of a disability and the result of the consultative exam could reasonably be expected to be of material assistance in resolving the issue of disability." Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997). The duty to develop the record extends to impairments that the ALJ may become aware of during the administrative hearing. Carter v. Chater, 73 F.3d 1019, 1021-22 (10th Cir. 1996).
At her consultative examination on January 16, 2004, Luevano "display[ed] a tearful affect" (AR 262); at a visit to Dr. Alexander on January 26, 2005, she was "somewhat tearful," id. at 279. The ALJ denied Luevano benefits on January 21, 2005. Id. at 22. The report of the January 26, 2005 visit thus occurred after the ALJ made his decision. I need not consider this evidence in determining whether the ALJ's decision was proper. It is true that evidence not before the ALJ may be presented to the Appeals Council and "becomes part of the administrative record to be considered when evaluating the Secretary's decision for substantial evidence." O'Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994). However, this "new evidence" must relate to the period on or before the date of the ALJ's decision. See id. at 858; 20 C.F.R. § 404.970(b) ("If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision.").
Luevano has only identified one incident prior to the ALJ's decision where Luevano was noted as being tearful. That Luevano was tearful at one of her medical visits while being seen for what she alleges was an extremely painful condition does not establish "the reasonable possibility of the existence of a disability." See Hawkins, 113 F.3d at 1169. She did not allege any mental impairments nor did she complain of psychological symptoms to her doctors. There was no suggestion at the hearing that she had a mental impairment. Luevano's argument that her treating doctors recommended a psychological evaluation is not accurate. Contrary to Luevano's assertions, Dr. Pennington recommended referral to a physiatrist, not a psychiatrist. ( See AR 152.) A physiatrist is "[a] physician who specializes in physical medicine." STEDMAN'S MEDICAL DICTIONARY at 1380. There is no evidence that Dr. Pennington thought Luevano needed a psychological evaluation.
The ALJ's Hypothetical Questions
Luevano argues that the ALJ erred by presenting faulty or defective questions to the VE. (Doc. 8 at 5.) She appears to argue that the questions did not properly reflect the extent of her pain and her posture limitations. Id. at 5-6. She also contends that the ALJ should have included questions about her alleged mental impairment. Id. at 6.The hypothetical questions must reflect the claimant's impairments and her limitations as supported by the evidence in the record. See Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996). Hypothetical inquiries "must include all (and only) those impairments borne out by the evidentiary record." Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995). "[T]estimony elicited by hypothetical questions that do not relate with precision all of a claimant's impairments cannot constitute substantial evidence to support the Secretary's decision." Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991) (quotation marks and citation omitted) (alteration in original).
Luevano appears to assert that the ALJ erred by not considering her allegations of pain in the hypothetical questions. ( See Doc. 8 at 5-6.) Pain that is not disabling but not insignificant should be taken into account in the RFC finding, see Thompson, 987 F.2d at 1490-91, and as noted above, the ALJ did so in this case. Because pain was properly considered in the RFC determination, there was no need to include it in the questions to the VE. In Herrera v. Barnhart, 69 F. App'x 438 (10th Cir. 2003) (unpublished decision), the claimant alleged that the ALJ did not mention his back and hand pain in the hypothetical questions. Id. at 441. The court stated that the ALJ assessed the effect of pain on the RFC, found the allegations of pain not fully credible, and determined that the claimant had no limitations on the ability to sit, stand, or walk. Id. The court noted that the hypothetical question reflected that lack of limitation and was consistent with the RFC determination. Id. It held that the hypothetical "adequately reflected the ALJ's conclusions concerning the effect of pain on appellant's ability to work." Id. Here, as in Herrera, the ALJ properly considered pain when determining Luevano's RFC and accurately conveyed her limitations in the hypothetical questions. As such, he did not err by not referring to pain in the hypotheticals.
Luevano also argues that the questions were faulty or defective because the ALJ (1) erred in his evaluation of pain and posture limitations, and (2) failed to include in the hypotheticals information about the mental impairment he should have recognized and for which he should have ordered a psychological consultative examination. (Doc. 8 at 5-6.) I have concluded that the ALJ's evaluation of pain was proper and that no psychological examination was required. Luevano's arguments therefore lack merit.
CONCLUSION
IT IS ORDERED that Luevano's Motion to Reverse Administrative Decision or, in the Alternative, a Remand of Said Decision (Doc. 7) is DENIED.
IT IS SO ORDERED.