Opinion
No. 02-4200-SAC
January 6, 2004
MEMORANDUM AND ORDER
This is an action to review the final decision of the defendant Commissioner of Social Security ("Commissioner") denying the claimant Tawny Pena's applications for disability insurance benefits under Title II of the Social Security Act ("Act") and for supplemental security income ("SSI") under Title XVI of the Act. The record from the proceedings below has been filed, and both parties have timely filed their respective briefs pursuant to D.Kan. Rule 83.7(d). The case is ripe for decision.
PROCEDURAL HISTORY
Claimant applied for disability benefits and SSI in July of 2000, asserting she was disabled as of March of 2000 on SSI application and as of June of 2000 on her disability benefit application. Her claims were denied initially and on reconsideration. At the claimant's request, a hearing before an administrative law judge ("ALJ") was held on April 11, 2002, and she appeared in person and with counsel. (Tr. 234-262). Witnesses at the hearing were the claimant and a vocational expert. The ALJ subsequently issued his decision on August 16, 2002, finding that the claimant was not disabled as defined under the Social Security Act. The Appeals Council denied the claimant's request for review. Thus, the ALJ's decision stands as the commissioner's final decision. O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994).
STANDARD OF REVIEW
The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that the commissioner's finding "as to any fact, if supported by substantial evidence, shall be conclusive." Substantial evidence is "more than a mere scintilla" and is that evidence which "a reasonable mind might accept as adequate to support a conclusion." Richardson v. Persales, 402 U.S. 389, 401 (1971) (quotation and citation omitted). "A finding of no substantial evidence will be found only where there is a conspicuous absence of credible choices or no contrary medical evidence." Trimiar v. Sullivan, 966 F.2d 1326, 1328 (10th Cir. 1992) (quotations and citations omitted). "Evidence is insubstantial if it is overwhelmingly contradicted by other evidence." O'Dell v. Shalala, 44 F.3d at 858 (citation omitted).
The court's duty to assess whether substantial evidence exists:
"is not merely a quantitative exercise. Evidence is not substantial `if it is overwhelmed by other evidence — particularly certain types of evidence (e.g., that offered by treating physicians) — or if it really constitutes not evidence but mere conclusion.'"Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988) (quoting Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir. 1985)). The court "must examine the record closely to determine whether substantial evidence supports" the commissioner's determination. Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996). The court is not to reweigh the evidence or substitute its judgment for the commissioner's. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). The court typically defers to the ALJ on issues of witness credibility. Hamilton v. Secretary of Health Human Services, 961 F.2d 1495, 1498 (10th Cir. 1992). Nonetheless, "`[f]indings as to credibility should be closely and affirmatively linked to substantial evidence. . . .'" Winfrey, 92 F.3d at 1020 (quoting Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988)). The courts do not mechanically accept the commissioner's findings. Claassen v. Heckler, 600 F. Supp. 1507, 1509 (D. Kan. 1985); see Ehrhart v. Secretary of Health Human Services, 969 F.2d 534, 538 (7th Cir. 1992) ("By the same token, we must do more than merely rubber stamp the decisions of the" commissioner. (citation omitted)). Nor will the findings be affirmed by isolating facts and labeling them substantial evidence, as the court must scrutinize the entire record in determining whether the commissioner's conclusions are rational. Holloway v. Heckler, 607 F. Supp. 71, 72 (D. Kan. 1985). "`We examine the record as a whole, including whatever in the record fairly detracts from the weight of the . . .[commissioner's] decision and, on that basis determine if the substantiality of the evidence test has been met.'" Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994) (quoting Casias v. Secretary of Health Human Services, 933 F.2d 799, 800-01 (10th Cir. 1991)); see Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). The record must "demonstrate that the ALJ considered all of the evidence," through "discussing the evidence supporting his decision,. . . the uncontroverted evidence he chooses not to rely upon, [and] significantly probative evidence he rejects." Clifton v. Chater, 79 F.3d 1007, 1009-1010 (10th Cir. 1996).
The qualifications for disability insurance benefits under the Social Security Act are that the claimant meets the insured status requirements, is less than 65 years of age, and is under a "disability." Flint v. Sullivan, 951 F.2d 264, 267 (10th Cir. 1991). An individual "shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . ." 42 U.S.C. § 423(d)(2)(A).
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 v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988). 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). A vocational expert's testimony may provide a proper basis for an ALJ's determination at step five only when a claimant's impairments are adequately reflected in the hypothetical questions posed to the expert. Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991).
ALJ'S FINDINGS
In his order of August 16, 2002, the ALJ made the following findings:
1. Claimant met the special earnings requirements of the Act on June 28, 2000, the date she stated she became unable to work, and continues to meet them through at least the date of this decision.
2. Claimant has not engaged in substantial gainful activity since June 28, 2000, her alleged onset date of disability.
3. The medical evidence establishes that claimant has the following severe impairments: insulin-dependent type II diabetes mellitus with resultant diabetic polyneuropathy, retinopathy and right foot ulcer, status post laser surgery to right eye; morbid obesity; degenerative disc disease of the lumbar spine with spondylosis and some mild central spinal stenosis; and a history of hypertension and hypothyroidism. Claimant's history of depression has also been considered in combination of impairments; however, it is found to be not severe, according to the medical evidence of record. Overall, claimant does not have impairments, considered singularly or in combination, which meet or equal any criteria contained in the Listing of Impairments, Appendix 1, Subpart P, Regulations No. 4.
4. Claimant's testimony, with respect to the severity of her overall medical condition and inability to work, provided she is compliant with her medication regimen, is not credible, and not supported by the objective medical evidence.
5. Claimant has the residual functional capacity to perform the exertional and non-exertional requirements of sedentary sit stand option work activity.
6. Claimant is unable to perform her past relevant work for the reasons set forth in this decision.
7. Claimant has acquired no vocational skills from her past relevant work which would transfer to work within her residual functional capacity and restrictions.
8. Claimant was born on March 29, 1962 and was 38 years of age at her alleged onset date of disability. She is currently 40 years old, and under the regulations, is classified as a "younger" individual.
9. Claimant has a "high school" education plus certified nurse's aide training.
10. Based on an exertional capacity for sedentary work activity, and claimant's age, education and past relevant work experience, the framework of Rule 201.28 of Table No. 1, Appendix 2, Subpart P, Regulations No. 4 directs a conclusion of "non disabled."
11. Although claimant has some non-exertional limitations, using the above-cited rules as a framework for decisionmaking, there are a significant number of jobs in the local and national economies which she could perform, the numbers and identities of which were specifically set forth by the vocational expert at the hearing.
12. Claimant has not been under a "disability," as defined in the Social Security Act, as amended, at any time through the date of decision.
(Tr. 21-22).
SUMMARY OF ARGUMENTS
The plaintiff argues that the ALJ's credibility determination on the plaintiff's complaints of disabling pain are not supported by substantial evidence. The plaintiff contends the ALJ erroneously based the plaintiff's RFC on the opinions of consulting physicians and without according proper weight to the opinions of her treating physicians. The plaintiff further takes issue with the adequacy of the ALJ's findings at step three of the sequential evaluation process. Attached to the plaintiff's reply brief is a copy of the commissioner's favorable decision on a subsequent application filed by the plaintiff. The decision states that the plaintiff was found disabled on August 17, 2002, which is the day after the ALJ's decision in this case. The plaintiff argues that her impairments plainly did not become disabling overnight. The plaintiff asks the court to reverse for an immediate award of benefits or remand for the ALJ to consider the Commissioner's subsequent findings.
DISCUSSION AND ANALYSIS
In light of the Commissioner's subsequent decision awarding benefits to the plaintiff as of August 17, 2002, the court will be brief in its analysis of the facts and issues. The evidence of record fully establishes that the plaintiff's impairments became more severe after the alleged onset dates of her disability. Rather than taking into account this ongoing deterioration in the plaintiff's condition, the ALJ ignored this rational explanation for the differences in medical evidence gathered at other points in times and in the plaintiff's description of her daily activities on the written report submitted in July of 2000 and her testimony given nearly two years later in 2002. The ALJ chose instead to isolate certain facts, contrast them with other facts without regard for timing or context, and simply conclude that the facts against a finding of disability were more credible. The court is convinced that this case requires a remand for the ALJ to reconsider the commissioner's subsequent disability award and to evaluate the evidence consistent with the analysis and standards discussed herein for purposes of deciding whether the plaintiff was disabled prior to August 17, 2002.
Because "[c]redibility determinations are peculiarly the province of the finder of fact," a reviewing court will not upset them "when supported supported by substantial evidence." Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). Credibility determinations, however, cannot be based on intangible or intuitive reasons, but "must be grounded in the evidence and articulated in the determination or decision." Soc. Sec. Rul. 96-7p, 1996 WL 374186, at *4. Credibility findings "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. The ALJ's credibility findings concerning the plaintiff's testimony and complaints are not supported by substantial evidence and are contrary to the law in several regards.
The lack of substantial evidence, as well as questionable objectivity, is particularly obvious in the following analysis appearing in the ALJ's decision. After noting that a claimant's prior work record is a proper consideration under Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987), the ALJ observed: "In this regard, the undersigned does not find claimant's work record to be problematic in that claimant, according to an earnings query (Exhibit 6-D), has had a fairly stable work history." (Tr. 17). In other words, a factor supporting credibility is merely not problematic in the ALJ's estimation. The ALJ then even discounts his estimation of this factor in next writing:
However, it is noted that claimant, at the hearing, testified that she had received disability benefits of $1,1032.00 from her employer, although they had recently been reduced to $485.00 per month, after taxes and health insurance. She also noted that received (sic) monthly Social Security checks of $383.00 for her 12 year old niece, of whom she now had guardianship. Additionally, claimant indicated that she had received food stamps as well. Overall, the undersigned notes that the benefits claimant has received during the period in question may be reducing her incentive to work somewhat.
(Tr. 17). The ALJ erred in two regards with this analysis. First, a VA disability finding or decision is not binding on the Commissioner, but it is entitled to some weight and should be considered. Morrison v. Apfel, 146 F.3d 625, 628 (8th Cir. 1998); see Wilkins v. Callahan, 127 F.3d 1260, 1262 (10th Cir. 1997). There is nothing of record to show that the ALJ gave any weight or proper consideration to the VA's finding that the plaintiff was disabled. Second, the ALJ's finding that claimant is not motivated to work because she was receiving disability benefits is based on his own speculation, not on substantial evidence. See Winfrey v. Chater, 92 F.3d 1017, 1021 (10th Cir. 1996). Indeed, the Tenth Circuit has held that a claimant's receipt of "such benefits has no bearing on her credibility." Hinton v. Massanari, 13 Fed. Appx. 819, 820, 2001 WL 744971 (10th Cir. Jul. 3, 2001).
Minimal daily activities are not substantial evidence that a claimant can work. Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993). The minimal activities to which the plaintiff testified in April of 2002 are fully consistent with her complaints of disabling pain, and her daily activities described in her daily living report of July of 2000 do suggest a lesser degree of pain but they are not substantial evidence of a RFC for sedentary work in September of 2001 or later. Moreover, as stated earlier, the ALJ wholly failed to consider that the plaintiff's deteriorating condition explains why her daily activities were more restricted in 2002 than in 2000.
The ALJ also discounted the plaintiff's credibility citing her lack of compliance with recommended medical regimen. The ALJ's analysis of this factor does not accord with the legal standards set out in Frey v. Bowen, 816 F.2d 508, 517 (10th Cir. 1987). The ALJ identified her failure to take medication prescribed for diabetes and depression and her failure to follow a diet as instances when the plaintiff did not follow recommended treatment. The ALJ found that "as long as she is compliant with her recommended medical regimen" the plaintiff was not disabled. (Tr. 20). The court is unable to find substantial evidence of record establishing the plaintiff's ability to work upon taking her medication for diabetes and depression. Rather, the evidence shows that even after the plaintiff resumed taking her diabetes medication regularly she still had a recurrent diabetic ulcer on her right foot that interfered with her ability to stand and walk. Moreover, the plaintiff's primary disabling impairment was her back, and there is no evidence that the plaintiff did not comply with the recommended medical regimen for this condition. The medical evidence of record does not sustain the ALJ's conclusion that the plaintiff's RFC for sedentary work would be restored by following the recommended medical treatment.
The plaintiff's treating physician wrote the following in a letter dated September 10, 2001: "Tawny Pena has severe chronic low back pain due to spinal stenosis, and possibly diabetic neuropathy. Because of this pain she continues to be totally disabled. The duration is indeterminate. She also has multiple other severe medical problems including diabetes mellitus, high blood pressure, hypothyroidism, and severe obesity." (Tr. 201). The ALJ accorded little weight to this medical opinion finding that it was conclusory, and not supported by Dr. Watkins' treatment records and those of Drs. Ebeling, Welch and Smith.
"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, ___ F.3d ___, 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).
The ALJ's credibility analysis of Dr. Watkins' opinion is not sustained by specific and legitimate reasons fully supported by substantial evidence. The ALJ does not explain how Dr. Watkins' treatment records are inconsistent with his opinion. As for Dr. Ebeling's opinion after a single examination in April of 2000, the ALJ focuses on the conclusion stated there that the plaintiff could work as tolerated without restrictions. The opinion letter of Dr. Ebeling shows that he was concerned principally with diagnosing neurological conditions as of April of 2000, and that he understood the plaintiff was working a desk job. The record does not include any subsequent evaluations or opinions by Dr. Ebeling. As for the plaintiff's condition in April of 2000, the plaintiff even testified that she probably could have performed a desk job at that point in time. Looking at Dr. Welch's records, he observed improvement in plaintiff's back following epidural injections and treatment with Neurontin in the latter part of 2000. Dr. Welch's treatment records, however, also show that this improvement was temporary, that the plaintiff experienced difficulties with the injections, that the plaintiff's pain increased and so did the amount of her prescribed medication, and that in October of 2001 Dr. Welch wrote as part of his recommendation that the plaintiff "will have continued disability related to both her lumbar degenerative disease and diabetic neuropathy." (Tr. 200). The medical records of Dr. Smith are also consistent with the above in showing the plaintiff's ability to perform light office work in the middle of 2000 with her condition worsening in the latter part of 2000 and additional medical opinions being sought. When placed in their appropriate context, the medical records of these other physicians do not contradict Dr. Watkins' disability opinion as of September 2001. The ALJ's credibility finding on Dr. Watkins is not supported by substantial evidence.
CONCLUSION
The incomplete and myopic analysis of medical evidence, the failure to articulate specific and sound reasons for the different credibility judgments, and the erroneous consideration of certain factors compel this court to conclude that the ALJ's evaluation of the credibility of the plaintiff and her treating physician is not supported by substantial evidence. On remand, the ALJ also shall consider the Commissioner's subsequent determination that the plaintiff was disabled as of August 17, 2002.
IT IS THEREFORE ORDERED that the judgment of the Commissioner is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings not inconsistent with this memorandum and order.