Opinion
Case No. 02-4117-SAC.
July 7, 2004
MEMORANDUM AND ORDER
This social security appeal comes before the court on the magistrate judge's report and recommendation. The Commissioner denied disability insurance benefits ("DIB") and supplemental security income ("SSI" benefits, and the magistrate recommends affirming that decision. Plaintiff has timely objected to the report and recommendation.
PROCEDURAL BACKGROUND
Plaintiff filed applications for DIB and SSI on June 7, 1996 and July 18, 1996, respectively, alleging the date of onset of disability as April 12, 1988. Plaintiff later amended her date of onset of disability to November 2, 1989. Her application for benefits was denied initially and on reconsideration.
After an administrative hearing was held in March of 1998, the administrative law judge found against the plaintiff. Plaintiff appealed that decision to this court, and the case was reversed and remanded for additional proceedings. After supplemental hearings were held, the ALJ again denied benefits to plaintiff. The ALJ concluded that plaintiff was not disabled at step five of the analysis because she could perform a significant number of jobs in the national economy. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (explaining five-step process for evaluating claims for disability benefits). The ALJ's decision became the Commissioner's final decision in May of 2002, when the Appeals Council denied plaintiff's request for review. Plaintiff has once again appealed to this court, which referred the matter to the magistrate judge for report and recommendation.
Case No. 99-1279-JTM, filed Sept. 29, 2000.
STANDARD OF REVIEW
"De novo review is statutorily and constitutionally required when written objections to a magistrate's report are timely filed with the district court." Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations omitted). Rule 72(b) of the Federal Rules of Civil Procedure requires a district judge to "make a de novo determination upon the record, . . ., of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule." Those parts of the report and recommendation to which there has been no objection are taken as true and judged on the applicable law. See Campbell v. United States District Court for the Northern Dist. of California, 501 F.2d 196, 206 (9th Cir.), cert. denied, 419 U.S. 879 (1974); see also Summers v. Utah, 927 F.2d at 1167 (holding that "[i]n the absence of timely objection, the district court may review a magistrate's report under any standard it deems appropriate"). The district court has considerable judicial discretion in choosing what reliance to place on the magistrate judge's findings and recommendations. See Andrews v. Deland, 943 F.2d 1162, 1170 (10th Cir. 1991) (citing United States v. Raddatz, 447 U.S. 667 (1980)), cert. denied, 502 U.S. 1110 (1992). When review is de novo, the district court is "`free to follow . . . or wholly . . . ignore'" the magistrate judge's recommendation, but it "`should make an independent determination of the issues'" without giving "`any special weight to the prior' "recommendation. Andrews, 943 F.2d at 1170 (quoting Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458, 1464 (10th Cir. 1988)). In short, the district court may accept, reject, or modify the magistrate judge's findings, or recommit the matter to the magistrate with instructions. See 28 U.S.C. § 636(b)(1)(C) (1994).
A five-step sequential process is used in evaluating a claim of disability. Bowen v. Yuckert, 482 U.S. 137, 140 (1987). If the claimant bears his burden of proof on the first four steps, he establishes a prima facie case of disability. Williams, 844 F.2d at 751. The burden of proof then shifts to the commissioner at step five to show that the claimant retains the residual functional capacity ("RFC") to perform other work available in the national economy, considering such additional factors as age, education, and past work experience. Sorenson v. Bowen, 888 F.2d 706, 710 (10th Cir. 1989). The commissioner satisfies this burden if substantial evidence supports it. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
ALJ'S FINDINGS
In his decision dated January 9, 2002, the ALJ made the following findings:
1. The claimant met the earnings requirements of the Act on November 2, 1989 and continued to meet them through the date last insured of December 31, 1993.
2. The claimant has not engaged in substantial gainful activity since November 2, 1989.
3. The medical evidence establishes that the claimant has the following impairments: moderate dysthymia, obesity and fibromyalgia. Nevertheless, she does not have an impairment or combination of impairments listed in, or medically equal to one listed in 20 C.F.R. Part 404, Appendix 1, Subpart P.
4. The claimant's testimony is not found credible when considered in light of the medical signs and findings, history of medical treatment, reports of treating and examining physicians, the inconsistencies in the claimant's testimony, etc., all of which is discussed more fully in the Rationale section of this decision.
5. The claimant has the residual functional capacity to perform work-related activities except that she is limited to light non-physically stressful job tasks; cannot perform more than unskilled or low semiskilled job tasks; and cannot perform job tasks that require high levels of concentration. ( 20 C.F.R. § 404.1545 and 416.945).
6. The claimant is unable to perform her past relevant work.
7. The claimant is a younger individual . . . and has the equivalent of a high school education . . .
8. The claimant has no acquired work skills that are transferable to semi-skilled or skilled work functions of other work within her residual functional capacity . . .
9. After considering the claimant's above described residual functional capacity for a range of work and age, education and past relevant work, the undersigned Administrative Law Judge is persuaded that the claimant would be able to make a vocational adjustment to work which exists in significant numbers in the local and national economies within the framework of Rule 202.21 of the Medical Vocational Guidelines.
10. The claimant has not been under a "disability," as defined in the Social Security Act, as amended, since November 2, 1989 and through the date of this decision . . .
R. p. 236-37 (internal citations omitted).
ANALYSIS AND DISCUSSION
The Frey factors
Plaintiff first contends that the magistrate erred in its analysis of plaintiff's credibility by not considering the four factors prescribed in Frey v. Bowen, 816 F.2d 508 (10th Cir. 1987). Specifically, plaintiff contends that in considering the impact of a claimant's failure to undertake treatment when determining claimant's credibility, the ALJ must first consider these four elements: (1) whether the treatment at issue would restore claimant's ability to work; (2) whether the treatment was prescribed; (3) whether the treatment was refused; and, if so, (4) whether the refusal was without justifiable excuse. Frey, 816 F.2d at 517; see Adkins v. Barnhart, 80 Fed.Appx. 44, 49-50, 2003 WL 22413920,*6 (10th Cir. 2003) (finding legal error if ALJ concluded, without having applied Frey four-part test, that claimant was not credible because he did not take prescription pain medication); Goodwin v. Barnhart, 195 F. Supp.2d 1293, 1294-1295 (D. Kan. 2002) (finding Frey four-part test applicable even when noncompliance is simply a factor in the ALJ's evaluation of the claimant's credibility); Piatt v. Barnhart, 231 F. Supp.2d 1128, 1129-1130 (D. Kan. 2002); cf Higgins v. Barnhart, 294 F. Supp.2d 1206, 1214 (D. Kan. 2003) (finding Frey test applicable where conclusion of no disability was based in part on a determination that Plaintiff had not been compliant with a prescribed regimen).
Defendant counters that the four-factor Frey standard does not apply when a claimant's noncompliance with a physician's recommendation is used only as a credibility consideration rather than as a basis in itself for finding no disability. See Qualls v. Apfel, 206 F.3d 1368 (10th Cir. 2000) (reading Frey as restricted to ALJ's denial of benefits because a claimant has refused to follow prescribed treatment; finding Frey inapplicable where ALJ considers the attempts plaintiff made to relieve his pain — including whether he took pain medication — in an effort to evaluate the veracity of plaintiff's contention that his pain was so severe as to be disabling); Allen v. Apfel, 216 F.3d 1086, 2000 WL 796081, *3 (10th Cir. 2000) (same); Bates v. Barnhart, 222 F. Supp.2d 1252, 1261 (D. Kan. 2002) (same).
The court believes that the Frey test may properly be used in denying benefits for plaintiff's failure to follow prescribed treatment and in considering plaintiff's failure to follow prescribed treatment for purposes of evaluating plaintiff's credibility. See Goodwin v. Barnhart, 195 F. Supp.2d 1293, 1295 (D. Kan. 2002) (citing Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993), Ragland v. Shalala, 992 F.2d 1056, 1059-60 (10th Cir. 1993)). Here, however, it doers not appear that the ALJ was concerned with plaintiff's failure to follow prescribed treatment. See R. p. 234. Instead, the ALJ reference to these matters is included in the ALJ's rationale for not finding the allegations of total disability credible. Id. The ALJ noted Dr. Carabetta's 11/1/99 recommendation (included in the "impression/discussion" section of his consultation report) that plaintiff should routinely use anti-inflammatory medications along with physical therapy, and assuming some effectiveness in that treatment, a home exercise program, R. p. 445, as well as Dr. Johnson's 7/30/01 impression (included in her consultation report) that plaintiff's problem "can be treated by weight loss and exercise," R. p. 451. In so doing, the ALJ appears to have been evaluating the efforts plaintiff made to relieve or reduce her pain, solely to assess her credibility. Under these circumstances, the ALJ is not required to apply the Frey factors. See Sills v. Barnhart, 2004 WL 1293248, *5 (D. Kan. 2004).
But even assuming that the ALJ erred in failing to use the four factor Frey test in evaluating the reports by Doctors Carabetta and Johnson, the ALJ did not rely solely on plaintiff's failure to follow prescribed treatment in reaching his decision. Instead, the ALJ noted sufficient evidence otherwise for his credibility determination, as set forth below.
Lack of credibility — substantial evidence.
Plaintiff next alleges that the ALJ's discrediting of plaintiff's testimony is not supported by substantial evidence.
In evaluating an ALJ's credibility determination when a claimant alleges disabling pain, the court employs a three-part framework that considers: "(1) whether Claimant established a pain-producing impairment by objective medical evidence; (2) if so, whether there is a `loose nexus' between the proven impairment and the Claimant's subjective allegations of pain; and (3) if so, whether considering all the evidence, both objective and subjective, Claimant's pain is in fact disabling." Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994) (quoting Musgrave v. Sullivan, 966 F.2d 1371, 1375-76 (10th Cir. 1992)). Only the third of these criteria is at issue in this case.
The ALJ determined, after considering all the evidence, both objective and subjective, that claimant's pain is not disabling.
It is difficult . . . for a claimant "to establish disabling pain without the explicit confirmation of treating physicians." Kepler v. Chater, 68 F.3d 387, 390 (10th Cir. 1995) (quoting Huston v. Bowen, 838 F.2d 1125, 1131 (10th Cir. 1988)). Additionally, "[c]redibility determinations are peculiarly the province of the finder of fact, and we will not upset such determinations when supported by substantial evidence." Kepler, 68 F.3d at 391 (quotation omitted). Kepler "does not require a formalistic factor-by-factor recitation of the evidence. So long as the ALJ sets forth the specific evidence he relies on in evaluating the claimant's credibility, the dictates of Kepler are satisfied." White v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2001) (quoting Qualls, 206 F.3d at 1372).
Joyce v. Barnhart, 88 Fed.Appx. 320, 326-327, 2004 WL 214478,*5 (10th Cir. 2004).
The ALJ recited the following as specific evidence he relied on in discrediting the claimant's credibility: 1) the lack of objective medical evidence supporting plaintiff's allegations of total disability and extreme limitations on her residual functional capacity; 2) the sparse record of plaintiff's medical treatment; 3) plaintiff's record of work activity, showing sporadic work and below average earnings, ending in 1988; 4) the lack of any evidence from third parties supporting the alleged duration, frequency, and intensity of plaintiff's subjective complaints; 5) the lack of consistency in plaintiff's statements to physicians who examined her; 6) plaintiff's failure to take medication on a regular basis, despite the fact the medications were not shown to have been ineffective and plaintiff acknowledged that they produced no adverse side effects; 7) plaintiff's failure to follow through on an a weight loss and exercise regimen; and 8) plaintiff's ability to engage in daily living activities such as doing most of the household chores and driving. R. p. 234-35.
This court has reviewed the record and finds that the ALJ considered the entire record, set forth the specific evidence he relied upon in evaluating plaintiff's credibility, applied the correct legal standards in evaluating plaintiff's testimony, and based his determination on evidence in the record. Substantial evidence supports the ALJ's decision to find that plaintiff's testimony was less than fully credible. Because credibility determinations are ultimately left to the ALJ when supported by substantial evidence, the Court finds that the ALJ's decision regarding plaintiff's credibility is not erroneous.
Treating physicians
Plaintiff additionally contends that the ALJ erred in failing to give the opinion of Dr. Wolfe, a treating physician, controlling weight. Dr. Wolfe was the sole physician, of at least five others who examined plaintiff, to opine that plaintiff was totally disabled. Plaintiff additionally contends that even if the ALJ was not required to give Dr. Wolfe's opinion controlling weight, the ALJ failed to give it appropriate weight.
This court recently recited the standards for evaluating a treating physician's opinion in stating:
"In deciding how much weight to give a treating source opinion, an ALJ must first determine whether the opinion qualifies for `controlling weight.'" Watkins v. Barnhart, 350F.3d1297, 2003 WL 22855009, at *2 (10th Cir. Dec. 2, 2003). An ALJ is required to give the opinion of a treating physician controlling weight if it is both: (1) "well-supported by medically acceptable clinical and laboratory diagnostic techniques;" and (2) "consistent with other substantial evidence in the record." Id. (quotation omitted). "[I]f the opinion is deficient in either of these respects, then it is not entitled to controlling weight." Id.
Even if a treating physician's opinion is not entitled to controlling weight, "[t]reating 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." Id. at *3 (quotation omitted). The Tenth Circuit identified those factors as including:
(1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion.Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001) (quotation omitted). And, "[a]fter considering the pertinent factors, the ALJ must give good reasons in [the] . . . decision for the weight he ultimately assigns the opinion." Watkins, 2003 WL 22855009 at *3 (quotation omitted). Further, "if the ALJ rejects the opinion completely, he must then give specific, legitimate reasons for doing so." Id. (quotation omitted); see also Washington v. Shalala, 37 F.3d 1437, 1440 (10th Cir. 1994). The ALJ "may reject a treating physician's opinion outright only on the basis of contradictory medical evidence and not due to his or her own credibility judgments, speculation or lay opinion." McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) (quotation omitted) (emphasis in original).
Pena v. Barnhart, 2004 WL 302328, *5-6 (D. Kan. 2004). See Langley v. Barnhart, ___ F.3d ___ (10th Cir. June 30, 2004).
The ALJ stated that he gave "little weight" to the opinion of Dr. Wolfe because:
. . . it is conclusory and inconsistent with the signs and findings in the narrative of his own examinations and the signs and findings in the examinations of other treating and examining medical professionals of record.
R. p. 235. In support of his decision, the ALJ also noted that
. . . the diagnosis of fibromyalgia was not supported by the findings of Dr. Carabetta, the consultative physician to whom Dr. Wolfe referred the claimant. Further, the opinion that the claimant is disabled is inconsistent with the opinions of Dr. White, Dr. Komes, Dr. Mintz and Dr. Johnson and is not supported by the results of the laboratory and diagnostic tests of record. Lastly, Dr. Wolfe did not consistently report findings of trigger points generally associated with the diagnosis of fibromyalgia.Id.
The court finds that the ALJ was not required to give the opinion of Dr. Wolfe controlling weight because it was neither supported by medically acceptable clinical and laboratory diagnostic techniques nor consistent with other substantial evidence in the record, as detailed in the Report and Recommendation. Nonetheless, the opinion was entitled to some deference.
Some of the factors to be weighed in examining Dr. Wolfe's opinion cut in his favor. The court understands plaintiff's objections that Dr. Wolfe was the sole treating physician and had been treating plaintiff longer than the other physicians of record, but these are facts inherent in the nature of the treating physician relationship. Plaintiff does not contend that Dr. Wolfe was a "specialist" in the area of fibromyalgia, although she alleges that the other physicians who examined her are not.
The court also agrees that negative findings by non-treating physicians for diagnoses other than fibromyalgia do not rule out or contradict a diagnosis of fibromyalgia. See Lantow v. Chater, 98 F.3d 1349, 1996 WL 576012, at *1 (10th Cir. 1996) (Table) ("Because fibromyalgia, . . ., is diagnosed by ruling out other diseases through medical testing, . . ., negative test results or the absence of an objective medical test to diagnose the condition cannot support a conclusion that claimant does not suffer from a potentially disabling condition.") But here, the ALJ did not disagree with the diagnosis of fibromyalgia. The controlling issue is whether plaintiff is totally disabled.
The ALJ set forth specific, legitimate reasons for discounting Dr. Wolfe's assessment, and these reasons are supported by the medical record. Because the doctor's opinion is not well-supported by objective evidence, is inconsistent with other evidence in the record (regarding total disability), and appears to be based in large part on plaintiff's subjective complaints, the ALJ did not err in giving it little weight. See Boss v. Barnhart, No. 02-7114, 2003 WL 21357260, at *3 (10th Cir. June 12, 2003) (citing Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994); accord Rankin v. Apfel, 195 F.3d 427, 430 (8th Cir. 1999) (holding that a treating physician's opinion was properly discredited because it was "based heavily on [claimant's] subjective complaints and [was] at odds with the weight of the objective evidence"). Under these circumstances, and for the reasons more specifically set forth in the Report and Recommendation, no error has been shown.
IT IS THEREFORE ORDERED that plaintiff's objections (Dk. 33) to the report and recommendation of United States Magistrate Judge are overruled, the report and recommendation is accepted and adopted, and the decision of the Commissioner is affirmed.