Opinion
No. 99-3320, SECTION "A".
February 22, 2001.
ORDER AND REASONS
Before the Court are cross motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. These motions were submitted on the briefs. Having reviewed the motions, memoranda, exhibits/administrative record, and the applicable law, and for the reasons detailed herein below, this Court GRANTS Commissioner's motion for summary and DENIES the plaintiff's motion for summary judgment.
I. Procedural Background
Plaintiff/claimant, Vernon M. Rivarde (Rivarde), seeks judicial review pursuant to Section 405(g) of the Social Security Act (the Act) of the final decision of the Commissioner of Social Security Administration (SSA), denying his claim for disability benefits (DIB), and finding that claimant has not been disabled and is not disabled as defined in Title II, §§ 216(I), 223 or 1614(a)(3)(A) of the Act at any time through the date of decision and is otherwise not entitled to Title II benefits.
The Plaintiff was initially hired as a grade 5 classified Office Service Specialist and she was thereafter promoted to a grade 8 as a Fiscal Manager. An employee is either "classified," "faculty" (administrative or regular faculty) or "hourly" and a faculty classification can include a clinical, teaching, administrative or combination position consisting of more than one function. (Def.'s Mem. at 3; Def.'s Suppl. Mem. in Supp. of Mot. for Summ. J. (Def.'s Suppl. Mem.), End. VII (Blatecky Suppl. Aff.) ¶ 2).
On March 3, 1997, Rivarde protectively applied for a period of Disability Benefits and Disability Insurance Benefits under 42 U.S.C. § 401 et seq., alleging inability to work as of that date because of a back disorder. Following initial and reconsideration denials, the claimant filed a timely request for a hearing, which was conducted before United States Administrative Law Judge (ALJ) John R. Burgess, on January 16, 1998. On February 11, 1998, the administrative law judge issued a decision finding that the claimant, Rivarde, was not "disabled" within the meaning of the Act. On August 31, 1999, the Appeals Council denied claimant's request for review and adopted the administrative law judge's February 11, 1998 — decision as the final decision of the Commissioner of Social Security. On November 1, 1999, Rivarde filed the instant complaint seeking judicial review of the final decision of the Commissioner denying his application for disability benefits. The decision is ripe for judicial review. As previously mentioned, Rivarde and the Commissioner filed crossmotions for summary judgment arguing that issues are amenable to summary disposition as a matter of law based on the record and the applicable law.
The Plaintiff contends that no reduction ultimately resulted, but her conclusionary suppositions are insufficient to create a genuine dispute of material fact, especially in the face of the substantiated assertions of the Defendant. (Pl.'s Mem. in Resp. and Opp. to Def.'s Suppl. Mem. in Supp. of Def.'s Mot. for Summ. J. (Pl.'s Mem. in Resp.), Ex. A (Kistler Second Suppl. Aff.)¶ 3).
Dr. Cohen does not recall the specifics of the conversation, but he also does not deny that something may have been discussed to the effect of Blatecky feeling threatened by Kistler's work ethic and ability. (Pl.'s Mem., Ex. I (Cohen Dep. at 27-28)). The Court therefore accepts the allegation as true for purposes of the motion.
But see Plaintiff's apparent self-contradiction that she was never told by Blatecky that funding was a reason for her not being given the position. (Kistler Dep. II at 88). Though puzzling, the Court concludes that the issue does not require resolution to decide the instant motion.
Blatecky denies he asked the Plaintiff to resign as opposed to only suggesting she may resign on her own accord. However, Silverman and Cohen (as well as Plaintiff) assert he told them he had asked for her resignation. The Court therefore construes the Plaintiffs allegation at this juncture as true. (Blatecky Aff. Ex. F; Pl.'s Mem., Ex. H (Silverman Dep. at 78); Ex. I (Cohen Dep. at 32); Kistler Dep. at 65).
The Plaintiff submitted various affidavits and related arguments contesting whether the Defendant treated the Plaintiff in a different manner with regard to her medical leave issue than others so as to establish a retahation claim, but the majority of it was submitted after the Court ruled on the matter at the conclusion of oral argument and all of the submissions are too conclusionary in any event without substantiation to merit consideration, especially in light of the Defendant's substantiated position. (Blatecky Aff. ¶¶ 17-20; Exs. J-Q).
See Action of Appeals Council on Request for Review dated August 31, 1999 [Adm.Rec. 4-7].
See Complaint filed November 1, 1999 [Fed.Rec.Doc. No. 1]
II. Statement of Issues on Appeal
Rivarde's request for judicial review argues that the Commissioner's decision, given the record as whole, is not based upon "substantial evidence" for the following reasons:
1. The Commissioner erred in failing to find Rivarde "disabled" under Section 105(c) of the Listing of Impairments and in any event ignores the alleged uncontested facts that all physicians in plaintiff's case concluded that he was severely limited from performing any work;
2. The Commissioner erred in assigning weight to the Vocational Expert's testimony, since it was based on evidence outside of the record, namely her personal experiences with her ex-husband's ability to function while medicated with Doxepan, said opinions also being contrary to known side effects of drug, listed in the Physician's Desk Reference (PDR); and
3. The Commissioner erred by failing to give "great weight" to the United States Office of Personnel Management's prior determination of disability in Rivarde's case.
For its part, the Government argues that the medical evidence clearly supports the ALJ's determination that Rivarde's condition fails to meet the requirements for the Listing 1.05C for a disorder of the spine, since applicable regulations ( i.e., 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 105C), establishes that vertebrogenic disorder must be accompanied by pain, muscle spasm, significant limitation of motion in the spine, radicular distribution of significant motor loss with muscle weakness, and sensory and reflex loss to be a basis of disability. In this vein, the Government argues that: (1) medical records pertaining to the evaluation of plaintiff's spine during the relevant time frame reveal no complaints of numbness, paresthesia, or weakness in either leg; and (2) there is a complete absence of evidence, and any allegation for that matter, of significant limitation of motion, significant motor loss with muscle weakness, and similarly no suggestion of sensory and/or reflex loss. As to "substantial evidence" supporting the Commissioner's determination1 the Government submits that both the state medical consultants and plaintiff's own treating physician found the plaintiff capable of sedentary work/activity with some lifting restrictions and commensurate pushing and pulling restriction and that his severe lumbar disc disease did not create much pain when the plaintiff was not active. Moreover, the Government argues that the his treating physician's summary conclusion in October 1997, that plaintiff was totally disabled was just that — i.e., the determination was not supported by contemporaneous medical findings and were contrary to all of his findings up to that point.
As to the alleged error of weight being assigned to the Vocational Expert's testimony on account of her testimony regarding alleged side effects of Doxipan, the Government submits that such is a non-issue noting the absence of any progress notes mentioning any complaints of the plaintiff due to side effects or side effects he actually experienced, nor is there testimony by the plaintiff regarding any alleged side effects. The Commissioner does not deny that the plaintiff's alleged impairments are severe and may cause him some pain, however, it is submitted that the level of pain alleged is not substantiated by objective evidence of record and credibility determinations by the ALJ should be accorded deference. In summary, the Commissioner argues that the VE's testimony constitutes "substantial evidence" to support the ALJ's finding that plaintiff is not disabled. There are jobs available in sufficient number in the national economy which he is capable of performing, and the plaintiff has failed to rebut that finding as required by law.
Finally, the Commissioner begs to differ with plaintiff's counsel's contention that the OPM's determination of disability should have been accorded some, if not, great weight. The Commissioner points to both applicable regulations and Fifth Circuit case law to the effect that it is the ALJ who makes determinations as to disability in social security cases and that determinations made by another agency are not binding on the Secretrary, noting that the process by which the Secretary of Social Security renders a disability determination is sui generis.
In summary, the Commissioner contends that plaintiff has failed to demonstrate that substantial rights were harmed and considering the thorough review of the medical evidence, the substantial evidence and relevant legal standards supporting the ALJ's decision that the plaintiff is not "disabled", the Court should affirm the administrative decision and dismiss the plaintiff's case.
III. ALJ's Findings Relevant to the Issues on Appeal
The Commissioner made the following findings relevant to the issues on appeal.
1. The claimant met the disability insured status requirements of the Act as of the alleged onset date and continues to meet them through December 2001.
2. The claimant has not engaged in substantial gainful activity since March of 1997.
3. The claimant has a "medically determinable severe impairment" within the meaning of Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985) and SSR 96-3p.
4. The claimant's impairments do not meet or equal the criteria of any impairment in the Listing of Impairments of Appendix 1, Subpart P, Part 404 of the C.F.R.
5. The claimant's assertions as to symptomatology, pain and limitation are credible in that he experiences low back pain for which surgery was recommended on numerous occasions but which was refused, all of which prevent him from performing the duties of his last employment.
6. The claimant has the residual functional capacity to occasionally lift 20 pounds, frequently lift ten pounds, stand and/or walk for two hours of an eight hour workday and to sit for six hours of an eight hour workday.
7. The claimant is forty-seven years old, which is defined as a younger individual, has a high school education and two years of college education.
8. The testimony of the vocational expert is credible and persuasive.
9. The vocational evidence indicates that there are a significant number of jobs in the national and regional economies which claimant is capable of performing;
10. The claimant has not been under a "disability" as defined in the Social Security Act at any time through the date of this decision and is not otherwise entitled to Title II benefits.
IV. Analysis
A. Standards of Review
The function of this Court on judicial review is limited to determining whether there is "substantial evidence" in the record as a whole, to support the final decision of the Commissioner as trier of fact, and whether the Commissioner applied the appropriate legal standards in evaluating the evidence. See 42 U.S.C. § 405 (g); Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993); Carriere v. Sullivan, 944 F.2d 243, 245 (5th Cir. 1991); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990); Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993).
See Rivarde's Motion for Summary Judgment [Fed.Rec.Doc. No. 9]; and Defendant's Reply Memorandum of Facts and Law [Fed.Rec.Doc. No. 10]. There has been no request for oral argument and in any event, having reviewed the record in its entirely, the Court believes that such argument would not assist the Court in the disposition of the matter, and thus it is deemed submitted for decision.
This premise guides the Court's determination of the specific issues raised by the plaintiff in this case.
"Substantial evidence" is that which is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); and Spellman, 1 F.3d at 360. The evidence must be more than a scintilla but may be less than a preponderance. Id.
A district court may not try the issues de novo, reweigh the evidence or substitute its own judgment for that of the Commissioner Ripley, 67 F.3d at 555; Spellman, 1 F.3d at 360; and Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). It must, however, scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence exists to support it. Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992); Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990); Johnson v. Bowen, 864 F.2d 340, 34344 (5th Cir. 1988). Any of the findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Ripley, 67 F.3d at 554.
The Commissioner is entitled to make any finding that is supported by substantial evidence, regardless of whether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992).
B. Entitlement Disability Benefits under the Act
To be considered disabled and eligible for disability benefits under the Act, the plaintiff must show that he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423 (d)(1)(A), 1382c (a)(3) (A). The Commissioner has promulgated regulations that provide procedures for evaluating a claim and determining disability. 20 C.F.R. § 404.1501 to 404.1599 Appendices, §§ 416.901 to 416.998 (1995). The regulations include a five-step evaluation process for determining whether an impairment prevents a person from engaging in any substantial gainful activity. Id. §§ 404.1520, 416.920; Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); Moore v. Sullivan, 895 F.2d 1065, 1068 (5th Cir. 1990). The five-step inquiry terminates if the Commissioner finds at any step that the claimant is or is not disabled.Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995)
The five-step analysis requires consideration of the following:
First, if the claimant is currently engaged in substantial gainful employment, he or she is found not disabled. 20 C.F.R. §§ 404.1520 (b), 416.920(b).
Second, if it is determined that, although the claimant is not engaged in substantial employment, he or she has no severe mental or physical impairment which would limit the ability to perform basic work-related functions, the claimant is found not disabled. Id. §§ 404.1520(c), 416.920(c)
Third, if an individual's impairment has lasted or can be expected to last for a continuous period of twelve months and is either included in a list of serious impairments in the regulations or is medically equivalent to a listed impairment, he or she is considered disabled per se ( i.e., without consideration of vocational evidence). Id., 404.1520(d), 416.920(d).
Fourth, if a determination of disabled or not disabled cannot be made by these steps and the claimant has a severe impairment, the claimant's residual functional capacity and its effect on the claimant's past relevant work are evaluated. If the impairment does not prohibit the claimant from returning to his or her former employment, the claimant is not disabled. Id. §§ 404.1520(e), 416.920(e)
Fifth, if it is determined that the claimant cannot return to his or her former employment, then the claimant's age, education and work experience are considered to see whether he or she can meet the demands of a significant number of jobs in the national economy. If the claimant cannot meet the demands, he or she will be found disabled. Id. §§ 404.1520(f)(1), 416.920(f)(1). To assist the Commissioner at this stage, the regulations provide certain tables that reflect major functional and vocational patterns. When the findings made with respect to claimant's vocational factors and residual functional capacity coincide, the rules direct a determination of disabled or not disabled. Id. § 404, Subpt. P, App. 2, §§ 200.00-204.00, 416.969 (1994) ("Medical Vocational Guidelines").
The claimant has the burden of proof under the first four parts of the inquiry. Id. If he successfully carries this burden, the burden shifts to the Commissioner to show that other substantial gainful employment is available in the national economy, which the claimant is capable of performing. Greenspan, 38 F.3d at 236; Kraemer v. Sullivan, 885 F.2d 206, 208 (5th Cir. 1989) When the Commissioner shows that the claimant is capable of engaging in alternative employment, "the ultimate burden of persuasion shifts back to the claimant. Id.; accord Selders, 914 F.2d at 618.
The Court "weigh[s] four elements of proof when determining whether there is substantial evidence of disability: (1) objective medical facts; (2) diagnosis and opinions of treating or examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) his age, education, and work history." Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995). "The Commissioner, rather than the courts, must resolve the conflicts in the evidence." Id.
C. Medical Evidence.
This Court has reviewed the medical records in evidence and finds the ALJ's summary of the evidence (AdmRec. 13-14] both thorough and accurate, and incorporates it herein by reference.
Dr. Mitchell Harris' chart note of April 1, 1997, reflects that Rivarde had been seen about a year prior to that time, was then diagnosed with Grade I spondylolisthesis, and was functioning quite well. He further notes that the patient's symptoms changed from predominantly low back pain to constant low back pain associated with pain in his left leg. The claimant was later found to have a Grade II spondylolisthesis with some foraminal encroachment and complete degeneration of the L5-S1 disc. Dr. Harris' chart note further notes that several specialists evaluated Rivarde and ultimately recommended surgery in April 1997, which the claimant was to consider. [Adm.Rec. 159-60 Exh. 1F2].
Claimant's physical examination of April 1, 1997 revealed the following: "He can bend forward to 90 degrees, but this is associated with some pain and he has some pain with extension as well. I cannot get him to walk today on either the left or the right. He can rise from a crouched position without assistance. Motor testing in his lower extremities is rather difficult to interpret secondary to poor effort on the patient's part. It does seem that he has some evident weakness of the gastro on both the left and the right. Deep tendon reflexes are normal and symmetric. Sensory examination is non-focal. Straight leg raising, on both the left and the right both seated and supine, produces low back pain especially on the left; however, it does not produce leg pain. The patient has normal dorsalis pedis and posterior tib pulses bilaterally." [Adm.Rec. 159 Exh. 1F2].
Thereafter in April of 1997, claimant's treating physician, Dr. James R. Davis, who determined that Rivarde could not perform his past employment due to his diagnosis/limitations, recommended that the claimant proceed with due haste to have his back surgery accomplished as soon as medically possible. [Adm. Rec. 186 Exh. 3F4] — Dr. Davis' August 1997 report indicates that Rivarde decided that he would rather take the pain medication, the muscle relaxant, and the NSAID rather than have surgery. [Adm.Rec. 183 Exh. 3F]. Dr. Davis further noted the claimant's continuing complaint of low back and observed that the Rivarde "has no trouble sitting, however does have problems standing over a prolonged period of time due to low back pain." [Adm. Rec. 184 Exh. 3F2]. Dr. Davis further observed that:
There was no difficulty in walking, however, lifting is restricted to no more than 15 lbs., carrying restricted to no more than 10-15 lbs., no problem handling light small objects however handling heavy objects should be restricted. There is no impairment of his hearing or his speech and can drive an automobile. There is no mental impairment and his understanding and memory is excellent. He has the ability to sustain concentration, and use persistence. He interacts well socially, and there is no problems with adaptation. The patient who is a trained X-ray technician probably will not be able to function in that capacity any longer. He could be retrained for a sedentary position however at the present time he should be declared totally disabled to work as an X-ray technician. Id.
At the request of Disability Determination Services, in May of 1997 Rivarde underwent a consultative examination by Frederick L. Keppel, M.D., who agreed that claimant had a Grade II spondylolisthesis at L5-S1. Dr. Keppel concluded that the claimant was severely limited in his ability to perform any work. [Adm.Rec. 205 Exh. 5f2] — When the state medical consultant reviewed Rivarde's records in July of 1997, he concluded that claimant was capable of occasional lifting of twenty pounds, frequent lifting of ten pounds, standing or walking for two hours and sitting for six all in the same eight hour work day. As to his ability to push and pull, the claimant was found to be limited only by lifting restrictions. Additionally, it was determined that claimant should only climb, stoop or crouch occasionally. It was further noted that there was no evidence of impaired sitting or manipulation. [Adm.Rec. 207-08 Exh. 6F].
See also August 1997 Report of State Medical Consultant (noting that the claimant wss capable of occasionally lifting 50 pounds, frequently lifting twenty-five, standing/sitting/walking for six hours out of an eight hour work day, and pushing/pulling limited only by lifting restrictions) (Adm.Rec. 215, 223 Exh. 7F].
In October of 1997, Dr. Davis submitted a second report opining that Rivarde should be declared totally disabled. However, Dr. Davis noted that claimant's EKG was basically normal, his hypertension under control, his anemia secondary to his peptic ulcer corrected and his severe lumbar disc disease is not that painful when claimant is not active, however, that with activity low back pain develops. [AdmRec. 224-25 Exh. 8F] (emphasis added).
D. Factual Background
Plaintiff testified at the hearing that he was 47 years old, graduated from high school, attended two years of college, and has an associate's degree from Delgado in Occupational Health. [Adm.Rec. 26, 28-29]. Rivarde further testified that his past relative employment was that of an X-ray technician from November of 1979 to November of 1996 [Adm.Rec. 32] and more recently three months as a housekeeper. [Adm.Rec. 30].
As an X-ray technician, claimant was required to walk, stand, stoop or crouch for considerable periods of time, all of which is entailed in operating X-ray and processing machines, which was a part of his employment. [Adm.Rec. 34]. As a housekeeper at the hospital in Covington, he was required to walk the halls, run inspection, and hands-on training of employees. He testified that he took that job to continue working, but it did not last very long because of his back condition. [Adm.Rec. 31].
Plaintiff testified that he wears a fiberglass back brace every day to protect his back whenever he leaves his house. [Adm.Rec. 36]. He testified he has pain in his back and shooting pain down his right leg, swelling on the bottom of his foot, and swelling of his hands. [Adm.Rec. 38, 43-44]. Claimant testified that he has pain in his leg every day, especially when he lays down and when he sits on his left side pain radiates down his right leg. [Adm.Rec. 43]. He rated his pain as an "8" on a "One to Ten Scale." Id. Rivarde further testified that his back medications do not relieve the pain, they just relax him and make him drowsy. Id. The claimant agreed with Dr. Davis, his treating physician, that he could lift ten pounds frequently, that he can walk about 5 blocks at a time and that he can sit for periods of time, however, he was in pain at all times while sitting. [Adm.Rec. 57-58].
Following claimant's testimony, the vocational expert Katrina Verden testified as to Rivarde's past relevant employment and opined that both jobs as an X-ray technician and a housekeeper were medium exertional work, however the latter was deemed unskilled. She further testified that his skills as an X-ray technician were not transferable to other work. (AdmRec. 63].
Given the medications that the claimant was taking, the vocational factors of gentleman 47 years old, with an associate degree in college, and claimant's work history, Ms. Verdin opined that Rivarde could perform sedentary unskilled work. [Adm.Rec. 65]. She further testified that the job of information clerk is sedentary unskilled work, with 51,000 such jobs available nationally, and 700 statewide. She also testified that the job of dispatcher is sedentary entry level work, with 29,000 jobs available nationally and 500 statewide. As to the job of "order clerk" which is also sedentary entry level work, Ms. Verdin testified nationally were 43,000 available, and 441 statewide. Also the cashier's job fell in that category, with one-half of a million available nationally and 11,000 statewide. [Adm.Rec. 66-67]. The list went on with examples given for the type of work. [AdmRec. 67-69].
E. Discussion of the Issues.
1. Disability under Section 105C of the Listing
As previously mentioned, at Step 3 of the sequential analysis, the claimant bears the burden of proving that he has an impairment that meets or equals the criteria of an impairment listed in Appendix one of the regulations. If the claimant meets this burden, the Commissioner is required to find the claimant disabled, and need go no further in the evaluation process. See C.F.R. § 404.1520(d).
Rivarde claims that he suffers from impairments which reach the Section loSC Listing level severity. In order to meet Listing 105C, there must be objective evidence establishing the existence of a vertebrogenic disorder with the following symptoms persisting for at least three months despite prescribed therapy, and expected to last 12 months, including: 1) pain, muscle spasm, and significant limitation of motion in the spine; and 2) appropriate radicular distribution of significant motor loss with weakness and sensory and reflex loss. See 20 C.F.R. § 404, Subpart P, Appendix 1, S 1.05C (1999).
Although Rivarde's memorandum contains recitation of some of the language from Listing 1.05C, the medical evidence simply does not meet the criteria for the listing. Statements in claimant's testimony claiming constant severe pain and in his memorandum claiming significant limitation of motion, motor loss and the like, are not supported by medical evidence in the record.
To the contrary there is substantial evidence in the record to support the ALJ's finding that claimant's vertebrogenic disorder fell short of the criteria in Listing 1.05C. Claimant submits that uncontradicted medical evidence of record shows that he meets the Listing requirements and such medical evidence is based on diagnostic tests and objective findings. Well, let's see if that's so.
Claimant relies on: (1) Dr. Frederick Keppel's May 7, 1997 Report, noting severe lower back pain, weakness in both lower extremities and limited range of motion on account of a Grade II spondylolisthesis, with bilateral neural foraminal compromise; (2) Dr. Lee Moss, who found surgery was indicated for the foregoing back disorder; (3) Dr. Mitchell Harris, who also found that Rivarde was a surgery candidate and noted constant low back pain and radiating pain in the leg; and (4) the treating physician, Dr. Davis who noted in his October 1997 report that Rivarde was totally disabled from work due to low back pain, with spondylolisthesis and degenerative lumbar disk disease.
While some of the findings aforestated may satisfy the criteria for Listing 105C(1), not one of the physicians reported the appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss necessary to satisfy Listing 105C(2).
For instance, Dr. Mitchell Harris in his April 1, 1997 chart note stated that claimant could bend forward to 90 degrees and could rise from a crouched position without assistance. He further noted that interpreting tests on claimant's motor skills was difficult due to "poor effort on patient's part." [Adm.Rec. 159]. He further noted that deep tendon reflexes were normal and symmetric. Id. Cause to suspect the plaintiff's credibility was manifested when Dr. Harris indicated in his report that the claimant was putting forth nowhere near his best effort during his physical examination.
Also, plaintiff's treating physician, Dr. James Davis noted in his August 1997 report:
There was no difficulty in walking, however, lifting is restricted to no more than 15 lbs., carrying restricted to no more than 10-15 lbs., no problem handling light small objects however handling heavy objects should be restricted. There is no impairment of his hearing or his speech and can drive an automobile. There is no mental impairment and his understanding and memory is excellent. He has the ability to sustain concentration, and use persistence. He interacts well socially, and there is no problems with adaptation. The patient who is a trained X-ray technician probably will not be able to function in that capacity any longer. He could be retrained for a sedentary position however at the present time he should be declared totally disabled to work as an X-ray technician. [Adm.Rec. 183-84 Exh. 3F] (emphasis added).
Thereafter in October 1997, Dr. Davis noted that "[t]he patient is now seeking full disability due to his chronic low back pain." (Adm.Rec. 225 Exh. 8F2] Then, he summarily concluded that "[t]he patient is totally disabled due to the above diagnosis (Grade II Spondylolisthesis/degenerative disc disease] and should be declared so immediately." Id. Such conclusion was made notwithstanding Dr. Davis' assessment in the very same report that:
His EKG is basically normal. His hypertension has been controlled. His anemia which was probably secondary to his peptic ulcer has been corrected. His severe lumbar disc disease when he is not active is not that painful, however, with activity he develops low back pain. Id.
Dr. Davis did not support his opinion of "total disability" with any clinical findings and his medical/clinical findings up to that Lime were contrary to the later determination of "total disability."
Regarding Dr. Davis' October 1997 report, the ALJ noted: Here, the claimant's treating physician, Dr. Davis, rendered an opinion in August of 1997 that claimant could be retrained to perform sedentary work. However, two months later, he opined that Rivarde was "totally disabled". The latter opinion was not supported by medical findings and, in fact, is obviously contrary to the findings listed in the report. Consequently, Dr. Davis' opinions, particularly the October 1997 report, have been considered as required in conjunction with the substantial evidence of record and accorded the appropriate weight under SSR 96-6p. [Adm.Rec., 15]
Although Dr. Frederick L. Keppel, the State Examiner noted weakness in both lower extremities, he further noted no atrophy and no limp. [Adm.Rec. 204 Exh. 3F]. Also the state consultant, who reviewed Rivarde's medical records thereafter, in July of 1997, found that claimant was capable of occasionally lifting 20 pounds, frequently lifting ten pounds, standing or walking for two hours and sitting for six hours, all out of an eight hour work day. [AdmRec. 207 Exh. 6F].
As to medical opinions of a "treating source," the ALJ must follow the guidelines set forth in 96-2p to determine whether "controlling weight" should be given such opinions. These guidelines are: (1) the opinion must come from a "treating source;" (2) the opinion must be a "medical opinion;" (3) the treating sources medical opinion must be "well supported" by "medically acceptable" clinical and laboratory techniques; and (4) even if supported, the opinion must not be inconsistent" with other substantial evidence. Even if the ALJ finds that the treating source medical opinion is not entitled to controlling weight, that does not mean that the opinion can be rejected. "Treating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 C.F.R. § 404.1527 and 416.927." (SSR 92-2p) The factors provided in 20 C.F.R. § 404.1527 and 416.927 include: (1) Examining relationship; (2) Treatment relationship, length of treatment, frequency of examination, nature and extent of relationship; (3) Supportability; (4) Consistency; and (5) Specialization.
As to medical opinions of a specialist regarding the issues, they are generally accorded more weight than the opinions of a source who is not a specialist. 20 C.F.R. § 404.1527 (d)(5), 416.927(d)(5). However, specialization is only one of several factors considered in the evaluation of medical opinions. 20 C.F.R. § 404.127 (d)(1)-(6), 416.927(d) ((1)-(6). More weight is given to opinions supported by specific explanations and clinical findings and which are consistent with the record as a whole and an ALJ need not give weight to medical opinions not supported by clinical findings. 20 C.F.R. § 404.1527 (d)(3), (4), 416.927(d)(3), (4).
Additionally, no special significance is accorded to the source of an opinion on issues reserved to the Commissioner, such as whether impairments meet or equal the requirements for impairments in the Listing. Where there is conflicting evidence regarding an issue reserved for the Commissioner, the Commissioner has the responsibility to resolve that conflict. The final decision on whether a claimant is disabled for purposes of the Act is a legal one rather than a medical one, and that determination may be made only by the Commissioner. 20 C.F.R. §§ 4041527(e)(1), (2), 416.927(e)(1), (2); see also Tamez v. Sullivan, 888 F.2d 334, 336 n. 1 (5th Cir. 1989); and Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990). An ALJ need only articulate some rationale for rejecting any medical opinion.
In summary, the Commissioner has considerable discretion in assigning weight to medical opinions and is free reject the opinion of any physician when the evidence supports a contrary conclusion. 20 C.F.R. § 404 .1527(d)(2), 416.927(d), (e); see also Greenspan, 38 F.3d at 237 (holding that the Act empowers the Commissioner to analyze the physicians' testimony and when substantial evidence supports the ALJ's decision to disregard a physician's conclusions, that basis alone is enough to survive judicial review); Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995); Spellman, 1 F.3d at 364; Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990). The Commissioner may give less weight to a physician's opinion when the physician's opinion is so brief and conclusory that it lacks strong persuasive weight, is not supported by medically acceptable clinical or laboratory diagnostic techniques, or is otherwise unsupported by the evidence. Leggett, 67 F.3d at 566; Spellrnan, 1 F.3d at 364.
In the case at bar, Drs. Davis and Kreppel, failed to support their conclusions with specific clinical findings. Dr. Kreppel failed to make specific clinical findings consistent with his disability determination. Dr. Davis' October 1997 assessment of total disability is deficient in that requisite clinical findings are absent and it does not speak to necessary findings which are necessary to satisfy the 105C Listing. His ultimate conclusion of "total disability," is not a medical opinion, it is a legal one. In the context of this case, the determination of disability under the Act is reserved to the Commissioner. It is noteworthy that with the exception of Dr. Keppel, all physicians who examined the claimant and spoke to the issue of whether Rivarde was capable of gainful employment, including Dr. Davis (i.e., claimant's treating physician) opined that Rivarde was capable of sedentary work. In summary, good cause exists to reject Dr. Davis' non-medical opinion that claimant was "totally disabled." Good cause resides in the facts that: (1) the treating physician's statement was not a medical opinion, but rather a vocational opinion, referring to the claimant's ability to perform a job; and (2) such opinion was not supported by his medical findings, internally inconsistent, and contrary to Davis' own prior findings.
The Court here notes that Dr. Keppel reviewed the claimant's medical records on one occasion as a consultant for the State, his findings were conclusory and at odds with claimant's treating physician. Moreover, the State's medical consultant who reviewed claimant's medical records shortly thereafter in July of 1997 concluded that Rivarde was capable of sedentary work. Also, the Court notes that Dr. Davis' October 1997 assessment of "total disability" is not supported by clinical findings and the report itself is internally inconsistent. Only two months earlier Dr. Davis found the claimant's limitations would permit sedentary work. The only changes in claimant's medical condition between Dr. Davis' August 1997 and October 1997 reports appear to be to the claimant's betterment as opposed to his detriment.
A review of the medical records reveals no neurologic deficits involving significant mdtor loss, muscle atrophy, or reflex or sensory loss. Based upon all the evidence the ALJ found that Rivarde had a Grade II Spondylolisthesis, with some foraminal encroachment and degeneration of the L5-S1 disc, a severe impairment which limited his functional ability to perform his past relevant employment. However, the ALJ concluded that Rivarde did not meet the criteria of Listing 1.05C. In so determining, the ALJ, as the fact finder, evaluated the record, weighing the testimony and records as he deemed appropriate — that is the province of the ALJ. As previously mentioned, a reviewing court may not reweigh the evidence.
So long as substantial evidence exists from which the ALJ can base his decision, such decision cannot be disturbed. Given the absence of the requisite medical findings, inconsistency of Dr. Davis' conclusion in his final report with all of his prior findings and the medical portion of the administrative record as a whole, and the plaintiff's suspect credibility as hinted by one of the plaintiff's physician, the Court finds that there is substantial evidence which supports the ALJ's determination that plaintiff fails to meet the requirements of Listing 1.OSC. Moreover, there is substantial evidence in the record which supports the ALJ's medical findings and his conclusion that the claimant is not "disabled" within the meaning of the Act.
2. Subjective Complaints of Disabling Pain
Turning to the issue of the failure of the ALJ to heed claimant's complaints of disabling pain, the ALJ candidly admitted that the claimant's impairments are severe and cause him some pain. However, the ALJ did not find that such impairment and/or the resulting pain were disabling. The ALJ is well-founded in this conclusion.
The law of the Fifth Circuit is that pain reaches the level of a disabling complaint when such pain is constant, unremitting, and wholly unresponsive to therapeutic treatment. Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994).
As to a determination of whether the claimant's pain is disabling, the first consideration is whether the objective medical evidence shows the existence of an impairment which could reasonably be expected to produce the pain alleged. Medical factors which indicate disabling pain include: limitation of range of motion, muscle atrophy, strength deficits, sensory deficits, reflex deficits, weight loss or impairment of general nutrition, noticeable swelling, and muscle spasm.
With regard to the plaintiff's complaints of disabling, unremitting low back and radiating leg pain, with the exception of some limitation of range of motion, the record discloses no other objective medical factors. The medical records disclose no muscle atrophy, no sensory deficits, no reflex deficits, no weight loss, no impairment of general nutrition, no noticeable swelling, and no muscle spasm.
At the time of claimant's work up for surgery by Dr. Harris, his chart notes state that claimant was capable of flexion of his spine to 90 degrees and could rise unassisted from a crouching position. Further noted was Rivarde's poor effort in the motor testing phase of Dr. Harris' examination. Dr. Harris further noted that Rivarde's reflexes were normal and symmetric, his sensory examination was non-focal, and that while leg raising produced some low back pain, it did not produce any leg pain.
Plaintiff's treating physician, Dr. Davis, noted in his final report of October 1997 that Rivarde's severe lumbar disc disease did not create much pain when the patient was not active. [Adm.Rec. 225 Exh. 8F2]. Dr. Davis statement was specifically noted in the ALJ's decision. [Adm.Rec. 14]. As to whether plaintiff's pain was constant, unremitting, and wholly unresponsive to therapeutic treatment, Rivarde's medical records, standing alone, admit no such conclusion.
The Court here notes that a treating physician's medical opinion should be accorded great weight. Most apparently, in regard to the determination of the nature and severity of the pain Rivarde was experiencing, the ALJ found the medical evidence more persuasive than the plaintiff's own testimony and accorded that aspect of the treating physician's assessment great weight. "These are precisely the kinds of determinations that the ALJ is best positioned to make." Falco v. Shalala, 27 F.3d 160, 164 (5th Cir. 1994).
Turning to plaintiff's subjective complaints, he testified that his pain was unremitting, was not alleviated by his pain medication, and he then, rated his pain as at the level 8 on a scale of 1 to 10.
The Court notes as observed during the administrative hearing, that there were no notes in the plaintiff's medical records corroborating his hearing testimony to the effect that his pain medications were ineffective in reducing his symptoms of pain, and instead, only produced drowsiness which caused him to sleep all but two or three hours during the day.
The ALJ expressly rejected Rivarde's contention that his pain was disabling, when he stated that claimant's subjective complaints of low back pain and other symptomatology are credited only to the extent that such would hinder him from performing his past work as an X-ray technician and as a housekeeping supervisor. [Adm.Rec. 16]. Simply stated, the ALJ found Rivarde's testimony incredible insofar as he professed severe, unremitting, totally disabling pain, which would not respond to therapeutic treatment.
As previously mentioned at the outset, credibility determinations are within the province of the ALJ. An ALJ is not required to accept the entirety of the claimant's perception of a disability.
The evaluation of an individual's subjective complaints is based upon the record as a whole. A complaint of pain may be discounted, as it was in the instant case, if it is not borne out objective medical evidence. A number of indications in the record appear to be inconsistent with Rivarde's complaints of constant, debilitating pain. Some of these were noted above and were also specifically noted by the ALJ. This Court concludes that the ALJ acted within his discretion with regard to his determination that Rivarde's complaints of disabling pain/symptomatology were not fully credible.
3. The Vocational Expert's (VE) Testimony.
Claimant submits that the Commissioner erred in assigning weight to the VE's testimony, since it was based on evidence outside of the record, namely her personal experiences with her exhusband's ability to function while medicated with Doxepan, said opinions also being contrary to known side effects of drug, listed in the Physician's Desk Reference (PDR).
The Commissioner submits that the VE called to testify stated that an individual that was forty-seven years old with two years of college education, past relevant work experience as an X-ray technician and a housekeeping supervisor, who could occasionally lift twenty pounds, frequently lift ten pounds, stand and/or walk for two out of an eight hour work day, and sit for six hours of an eight hour work day, could do the work of an information clerk, personnel clerk, and a ticket agent. The Commissioner's position is that such was sufficient, considering that the ALJ rejected plaintiff's complaints of disabling pain/drug side effects and other symptomatology, crediting Rivarde's testimony in that regard only insofar as it hindered him from performing his past employment.
The Commissioner further highlighted the fact that there are no progress notes or other mention in the plaintiff's medical records of either severe/debilitating pain, pain that is unresponsive to therapeutic treatment, and/or bad side-effects experienced by the plaintiff secondary to his prescribed pain medication.
An ALJ's hypothet must reasonably incorporate all disabilities recognized by the ALJ. See Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994). The Bowling court stated:
From the teachings of Morris and Rodriguez, then, this circuit's test for determining when a defective hypothetical question will produce reversible error becomes clear: Unless the hypothetical question posed by the ALJ, can be said to incorporate reasonably all disabilities of the claimant recognized by the ALJ, and the claimant or his representative is afforded the opportunity to correct the deficiencies in the ALJ's questions by mentioning or suggesting to the vocational expert any purported defects in the hypothetical questions (including disabilities not recognized by the ALJ's findings and disabilities recognized but omitted from the question), a determination of non-disability cannot stand. Id. (emphasis added).
In the case at bar claimant does not and cannot complain that he was not given the opportunity to suggest deficiencies in the original hypothetical question posed by the ALJ. Counsel for Rivarde in fact did so. However, the ALJ in this case specifically rejected plaintiff's subjective complaints of disabling pain and other alleged disabling symptomatology, finding Rivarde's assertions in that vein credible only insofar as they hindered his performance of his past employment. It is quite obvious that the ALJ did not find the plaintiff's testimony regarding any disabling side effects of his medication credible.
The record is devoid of medical findings, notations of complaints, or other mention of any drug side-effects that plaintiff experienced or any mention that his pain medications were ineffective in relieving his pain. As to the claimant's testimony regarding some impairment on account of severe drowsiness most of the time, such statement is at odds with his treating physician's assessment that the plaintiff was not restricted in his ability to operate his vehicle.
This Court, having reviewed the administrative record in its entirety, finds that the ALJ's assessment of the plaintiff's residual functional capacity did contain all the necessary findings. Also, the ALJ's hypothet in this case can be said to have reasonably incorporated all disabilities of the claimant recognized by the ALJ's findings. Furthermore, the hypothetical question posed and the response by the VE was supported by substantial evidence.
Once the Commissioner finds jobs in the national economy are available to the claimant, the burden of proof shifts back to the claimant to rebut this finding. The Vocational Expert's testimony constitutes substantial evidence to support the ALJ's decision denying benefits to the plaintiff and the plaintiff's argument does not rebut this finding.
4. The OPM's Prior Determination.
As previously discussed, the ALJ may not blindly defer to determinations by other agency officials. The law requires that the ALJ determine the issue of disability de novo. That is precisely what the ALJ did in this case and his findings are supported by substantial evidence and in accordance with applicable regulations.
See Johnson v. Sullivan, 894 F.2d 683, 686 (5th Cir. 1990) (rejecting claimant's contention that the Secretary erred by not fully crediting the decision of a state agency). In Johnson, the Fifth Circuit recognized its prior holding that the Secretary is required to consider and accord "great weight" to a determination by a state agency that a claimant is disabled. Notwithstanding that, the court stated:
Nevertheless, a disability finding by the VA or any other governmental or nongovernmental agency is not binding on the Secretary. Bowen, 828 F.2d 1081, 1083 (5th Cir. 1987); see 20 C.F.R. § 404.1504. The process by which the Secretary renders a disability determination is sui generis. Id.
Dr. Keppel's conclusion that the patient was severely limited in his ability to perform any work has no basis in any clinical findings that would support any such conclusion. [Adm.Rec. 105 Exh. 5F2]. Moreover, close on the heels of the issuance of the Keppel May 1997 report, a functional capacity assessment issued from the OPM in July of 1997, finding the claimant capable sendentary work. [Adm.Rec. 207 Exh 6F].
To the extent that the ALJ was so required, the record reflects that he did properly consider the OPM's determination.
For all of the above and foregoing reason's the decision of the Commissioner is AFFIRMED.
Accordingly,
IT IS ORDERED that:
(1) that the Commissioner's Motion for Summary Judgment is GRANTED; and
(2) that the Plaintiff's Motion for Summary Judgment is DENIED.
New Orleans, Louisiana, this 22nd day of February, 2001.