Opinion
CIVIL ACTION No. 99-2533-KHV
December 22, 2000
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff's Motion for Judgment (Doc. #7) filed June 2, 2000. Plaintiff brings suit under 42 U.S.C. § 405(g) and 1383(c)(3) seeking judicial review of the Commissioner's decision to deny disability insurance and supplemental security income under the Social Security Act ("SSA"). For reasons set forth below, the Court sustains plaintiff's motion.
Procedural Background
On August 11, 1995, plaintiff applied for a period of disability, disability insurance benefits, and supplemental security income ("SSI") disability benefits. The Social Security Administration denied his request initially and on reconsideration. On May 30, 1997, the Administrative Law Judge ("ALJ") held a hearing and found that plaintiff was not disabled because he could perform his former job as a dispatcher. The ALJ's decision stands as the final decision of the Commissioner.
Factual Background
In his applications for disability insurance benefits and SSI, plaintiff alleged that he became disabled on June 20, 1992, due to back problems and arthritis of the back and knee. Tr. 80, 83, 147. In his statement requesting a hearing, plaintiff indicated that he also had kidney and memory problems. Tr. 177-78. At the administrative hearing, plaintiff additionally asserted disability due to angina and dementia.
Medical Evidence
On June 30, 1989, plaintiff had an accident while driving a truck for Deffenbaugh Industries. Dr. John E. Aiken, M.D. treated plaintiff for pain between his shoulders and for muscle spasms of the thoracic spine. Tr. 210. Dr. Aiken prescribed physical therapy, Flexeril and heat. On August 3, 1989, Dr. Aiken noted that plaintiff's muscle spasms had improved. Plaintiff returned to work but on August 9, he reported that the bouncing of the truck triggered back spasms and extreme pain. After plaintiff experienced a set-back when he reached for a calendar, Dr. Aiken referred him to The Back Center. Tr. 202. The therapist treated plaintiff for muscles spasms with hyperextension of the thoracic spine and rotation of the torso. Plaintiff's posture, strength, flexibility and endurance improved with therapy, but he continued to experience some pain. Tr. 179. In early September, the therapist determined that plaintiff could return to work as a truck driver, except that his pain reports indicated that he could not tolerate the vibration. Tr. 179. The therapist recommended that plaintiff receive injections for pain or modify his activities until the pain subsided. Tr. 179-82. Dr. Aiken referred plaintiff to John D. Robinson, M.D., an anesthesiologist, who gave plaintiff three trigger point injections. On September 21, 1989, Dr. Robinson opined that plaintiff had improved by 40 per cent. He recommended that plaintiff remain on light work duty for the next several days. Tr. 185.
During October, 1989, plaintiff continued to report to Dr. Aiken that the pain was constant and had worsened, apparently due to driving a truck. Dr. Aiken released plaintiff to perform light duty work with no truck driving. Tr. 194-196.
On March 15, 1990, Dr. Aiken informed plaintiff's employer that plaintiff still had pain when he twisted or turned or when he was jarred by rough riding vehicles. Tr. 192. Dr. Aiken also stated, however, that plaintiff's pain was stabilized and that he could perform lighter duty work. Dr. Aiken opined that plaintiff's episodes of more severe pain might increase if he resumed his former job duties.
On April 7, 1993, Dr. Julian Nunez, M.D. examined plaintiff and prescribed Flexeril for pain. Tr. 217. On August 18, 1993, plaintiff returned to Dr. Nunez, and reported that he had trouble sleeping and walking. Dr. Nunez continued to prescribe Flexeril. Tr. 216. When plaintiff had a back spasm in November, 1993, Dr. Nunez restricted him from work for six months.
On January 5, 1995, family practitioner Dr. Steven R. Issac examined plaintiff for pain in his right hip and lower back after plaintiff fell. Dr. Issac found that plaintiff's right hip and sacroiliac were tender, that he had an abnormal gait, positive straight leg raising on the right and decreased deep tendon reflexes on the right side. Tr. 304. Dr. Issac prescribed Percocet and ibuprofen, and referred plaintiff to Dr. Mekki M. Saba, M.D., an orthopedic surgeon.
On January 12, 1995, Dr. Saba examined plaintiff, and noted that plaintiff continued to have tenderness in the sacroiliac area, but a normal range of motion and no neurological deficits in his lower extremities. Dr. Saba diagnosed plaintiff with muscle and ligament strain in the sacroiliac area with no evidence of a herniated nucleus pulposus. Dr. Saba advised plaintiff to continue the medication prescribed by Dr. Issac, and to undergo two weeks of physical therapy. Tr. 219.
Plaintiff saw Dr. Issac again on March 1, 1995, for fatigue and pain in his left flank, which Dr. Issac attributed to a urinary tract infection. Dr. Issac prescribed an antibiotic and Darvocet for pain. Tr. 301. On July 21, 1995, Dr. Issac treated plaintiff for vertigo. Tr. 300.
On September 16, 1995, Dr. John Chamberlain, M.D. performed a consultive examination of plaintiff. Dr. Chamberlain found that plaintiff had an abnormal gait, and limited range of motion and pain in his dorsolumbar spine. He had severe difficulty hopping, squatting and rising from a sitting position. An X-ray of the lumbar spine was within normal limits. An X-ray of his right knee showed a spur-like prominence. Plaintiff had a crepitation of the right shoulder and weakness in the right upper extremity based on pain. Dr. Chamberlain diagnosed traumatic arthralgias. Tr. 233.
On November 10, 1995, Dr. Issac admitted plaintiff to the hospital for chest pain. An EKG suggested myocardial ischemia. Tr. 228-29, 295-97. Treatment with nitroglycerin ameliorated plaintiff's pain and stabilized his heart rhythm.
On November 14, 1995, plaintiff took an exercise stress test which indicated possible ischemia. On November 15, 1995, a cardiac catheter revealed high-grade disease of the left anterior descending vessel and moderate disease of the circumflex and right coronary arteries. Tr. 243. Plaintiff immediately entered St. Luke's hospital, where he had a successful percutaneous revascularization with a stent. Tr. 239, 269-60. Dr. Steven Rowe discharged plaintiff on November 17, 1995, prescribing an aspirin a day and Ticlid (an anticoagulant/thrombolytic).
On January 5, 1996, Dr. Kit Powers, M.D. examined plaintiff to follow up the angioplasty and stent placement. Plaintiff reported that nitroglycerin relieved occasional dull chest pain. He had discontinued taking Ticlid because it made him nauseous. A treadmill test showed normal heart rate and blood pressure responses to exercise. Tr. 333. Dr. Powers diagnosed plaintiff's chest pain as gastrointestinal and prescribed Prilosec. Tr. 330.
On February 23, 1996, Dr. Issac examined plaintiff for complaints of chronic back pain on the left side and recent memory loss. Plaintiff's back was tender to palpation on the left side and Dr. Issac prescribed Darvocet.
On March 1, 1996, plaintiff again saw Dr. Issac for continued problems with memory loss and confusion. Lab results, including a thyroid panel, were essentially normal except for elevated cholesterol. Dr. Issac diagnosed early presenile dementia and prescribed Cognex. Tr. 290.
On March 22, plaintiff complained of worsening forgetfulness and stated that he suffered excessive fatigue while taking Zoloft. Tr. 290. Dr. Issac assessed probable depression with forgetfulness and memory loss and possible dementia, and prescribed Effexor (an antidepressant).
Tr. 290.
On March 25, 1996, plaintiff lost consciousness while at the hospital for a CT scan. Dr. Issac attributed the fainting spell to a vasovagal reaction. Tr. 289. On March 26, the CT scan was negative except for evidence of chronic sinusitus. Tr. 287-88.
On May 3, 1996, plaintiff complained to Dr. Issac that the day before he had shortness of breath and lost consciousness. An EKG revealed no significant changes since January 1996. Plaintiff's wife reported that his memory and mood improved slightly with Effexor. Dr. Issac diagnosed probable syncopal episode and memory loss. Tr. 287.
On May 7, 1996, Dr. James Davia, M.D., an internist, examined plaintiff at the request of the Social Security Administration. Plaintiff reported that he had an episode of chest pain and brief loss of consciousness a few days earlier, and that nitroglycerin relieved the pain. Plaintiff complained of left-sided neck and arm pain when at rest, memory problems and limitations due to back injury and moderate dyspnea on exertion due to a history of smoking. Plaintiff stated that he took aspirin, Ticlid and an anti-depressant. Tr. 269. Dr. Davia's exam revealed no peripheral edema, and a chest x-ray demonstrated no cardiomegaly and no evidence of congestive heart failure. Tr. 269. Dr. Davia found that plaintiff had coronary artery disease with a successful angioplasty and that his back, rather than his heart, caused his limitations. Because of the episode of pain three days earlier, however, Dr. Davia recommended that plaintiff take a stress test and that, until results of that test, he should not lift or carry over 20 pounds, and could sit or stand with limited walking. If plaintiff's stress test was normal, Dr. Davia opined that from a cardiac standpoint, he could work in a variety of employment situations. Tr. 270.
On May 8, 1996, plaintiff reported to Dr. Issac that he was feeling well and had no further chest pain. Plaintiff's cardiac enzymes were within normal limits. Tr. 281. Dr. Issac assessed plaintiff with a stable cardiac problem and cystitis, for which he prescribed Cephalexin. Tr. 281. Plaintiff entered the hospital for treatment of a urinary tract infection. Tr. 272-277. Tests revealed that he had a kidney stone and prostatic hypertrophy. While in the hospital plaintiff experienced another syncopal episode, and the staff revived him with minimal oxygen. Dr. Issac ruled out a myocardial infarction and seizure activity, Tr. 272-73, and discharged plaintiff. On May 23, 1996, plaintiff saw Dr. Issac and reported that he felt better and had no abdominal pain. Dr. Issac assessed nephrolythiasis with continued evidence of infection.
On May 31, 1996, Dr. Vacek, a cardiologist, examined plaintiff, who related that he had no recurrent angina, but that he had four episodes of lightheadedness. R. 327. A cardiac examination was normal, and plaintiff's EKG was essentially negative, although he had to stop due to shortness of breath. Tr. 327-28. Dr. Vacek found no evidence that active ischemia caused plaintiff's episodes of loss of consciousness, but believed that they might be vasovagal or cardiac dysrhythmias. Tr. 328. Dr. Vacek suggested that plaintiff keep a cardiac event record to evaluate any syncopal episodes. Tr. 328.
On September 18, 1996, at the request of plaintiff's attorney, Dr. Issac wrote a letter describing plaintiff's treatment history. Tr. 306-07. Dr. Issac had treated plaintiff for a variety of problems, including chronic back injury, unstable angina and memory loss. Dr. Issac stated that although plaintiff's memory improved with Effexor, he did not believe that plaintiff was currently taking it. Dr. Issac opined that plaintiff's memory problems might be related to depression and recommended a psychiatric evaluation. Dr. Issac filled out an assessment of work related mental activities, but he did not perform any psychological or mental assessments. Dr. Issac stated that plaintiff had good ability to understand, remember and carry out very short and simple instructions. Dr. Issac felt that plaintiff had a fair ability to remember work-like procedures, maintain attention for two hour segments, maintain regular attendance, sustain an ordinary routine, work with others, make simple work-related decisions, complete a normal workday and workweek, perform at a consistent pace, ask simple questions, accept instructions and respond appropriately to criticism from supervisors, get along with coworkers, be aware of normal hazards and take appropriate precautions. Finally, Dr. Issac rated as poor plaintiff's ability to respond appropriately to changes in a routine work setting, to understand, remember and carry out detailed instructions, and to set realistic goals or make plans independently of others. Tr. 306-308.
On November 9, 1996, plaintiff entered the hospital after he had chest pain and headache. Nitroglycerin relieved his chest pain, and a chest x-ray and cardiac enzymes were normal. Doctors treated plaintiff with antibiotics for bronchitis and a urinary tract infection. Tr. 313-318.
On November 25, 1996, Dr. Issac examined plaintiff, who reported that he had daily headaches. A CT scan showed no changes from the previous scan. Tr. 320.
On April 7, 1997, Dr. Steven Obermueller, M.D., a cardiologist, admitted plaintiff to the hospital to evaluate progressive symptoms of chest discomfort. Tr. 325. Plaintiff's EKG showed normal sinus rhythm with no change from the previous EKG a year earlier. Tr. 326. A heart catheterization revealed moderate coronary stenoses. Tr. 322, 341-42. Dr. Obermueller placed plaintiff on a low fat diet and prescribed Lopressor (an antihypertensive) and aspirin. A stress thalium study showed no abnormalities, although plaintiff's heart rate was submaximal due to the Lopressor. When plaintiff stopped using a nitroglycerin patch, he had chest pain, which suggested stable angina pectoris. Tr. 321.
On August 1, 1997, at the ALJ's request, neuropsychologist Minnie Koresko evaluated plaintiff. Tr. 346-54. Plaintiff performed in the low average range of intellectual functioning, with borderline verbal functioning. Although plaintiff denied symptoms of depression, his responses to a verbally administered MMPI-2 suggested underlying or chronic depression. Tr. 354. Plaintiff reported that he did not regularly take the medication which Dr. Issac prescribed for depression. Dr. Koresko found that plaintiff demonstrated deficiencies on selective tests of memory, although psychological distress may have skewed the results. The test results did not suggest Alzheimer's disease. Dr. Koresko concluded that plaintiff's test results and his academic history suggested a learning disorder associated with certain verbal abilities.
Dr. Koresko completed a medical source statement on which she rated plaintiff's abilities as moderately limited in ability to remember locations and work-like procedures; understand, remember and carry out detailed instructions; maintain attention and concentration for extended periods; perform activities within a schedule; sustain an ordinary routine; work in coordination with others; make simple work-related decisions; complete a normal workday and workweek; get along with coworkers; respond appropriately to changes in the work setting; be aware of normal hazards and take precautions; travel; and set realistic goals. She rated plaintiff's ability to accept instructions and respond appropriately to criticism from supervisors as moderately to markedly limited. Tr. 358-61.
Plaintiff's Testimony
At the administrative hearing on May 30, 1997, plaintiff testified that he is unable to work due to a bad heart, back pain and dementia. Tr. 34. He experiences pain between his shoulder blades and in the lower back, leg numbness and back spasms. Because he became dependent on painkillers he now uses only aspirin and Tylenol for back spasms. He estimates his back pain at five on a scale of ten and at ten during a spasm. Tr. 37. He relieves the spasms by lying flat on his back.
Because of his back, plaintiff avoids sitting for long periods of time. He stood up several times during the administrative hearing. He estimates that he can sit for 10 to 15 minutes at a time and stand for 15 to 20 minutes. He changes positions frequently, and cannot walk on uneven ground. Tr. 43. He can walk a block and a half. He does not lift more than five or six pounds at a time. Tr. 44.
Plaintiff first had heart symptoms in 1995. After angioplasty in November, 1995, he did well for 18 months but then began having chest pains. Tr. 39-40. He continues to have pain two to three times a week, accompanied by shortness of breath. After these episodes, plaintiff is exhausted. Tr. 41-42. He naps during the day and suffers from low energy. Tr. 42. He reports no side-effects from his heart medication. Tr. 58-59. He has not experienced an episode of loss of consciousness since he began taking medication. Tr. 45-46.
Plaintiff testified that he is slowly losing his memory. He can no longer balance a checkbook, remember to take his medication, or recall his children's ages. He must write things down to remember them, and his wife won't let him drive to Fort Scott with the children because he sometimes forgets how to get home. He testified that his wife had noticed his memory problems for over a year, and that he had noticed memory difficulty over the last three or four months. Tr. 46.
Plaintiff lives with his wife and daughter and four grandchildren who are in school. Tr. 52-53. On a typical day, plaintiff gets up about 6:00 a.m. and helps his daughter and grandchildren get ready for school. Tr. 48. He then spends most of the day sitting and watching television. Tr. 48, 55. He shops and rinses out some clothes once or twice a month. He occasionally mows the lawn, although the last time he had to quit after 15 minutes. Tr. 55.
Plaintiff has difficulty with temperature extremes. He smokes a pack of cigarettes a day, although his doctors have advised him to stop. He drives occasionally although his doctors have told him that he should not drive. Tr. 60. During a recent 90 minute car ride, plaintiff needed two breaks due to back pain even though he had taken pain medication. Tr. 62.
Testimony of Arlene Shafer, Plaintiff's Wife
Mrs. Shafer testified that she and plaintiff awake at 6:00 a.m. and that she gets the children ready for school. Plaintiff then cares for the children for about 45 minutes while Mrs. Shafer drives a bus route. Plaintiff eats breakfast at about 8:20. He then sleeps from 9:00 a.m. until 11:00 a.m; when he fixes lunch, watches television, and then naps until 3:00 p.m. He eats dinner at about 5:00 p.m. and goes to bed at about 9:00 or 10:00 p.m. Plaintiff gets up at least four times per night. If he turns the wrong way in bed he gets back spasms. Plaintiff's memory varies from day to day. Sometimes, Mrs. Shafer reminds plaintiff of something every day for a week, and he still does not remember it.
Testimony of Paul Simonds, Plaintiff's Pastor
Mr. Simonds sees plaintiff at least once a week. Plaintiff does not often attend church because he cannot sit through the service, so Mr. Simonds visits him in his home. Plaintiff's ability to be active is unpredictable. Some days plaintiff can perform almost normal activities, but on other days he is "flat on his back in bed." Tr. 69.
Testimony of Vocational Expert A. Glen Marlow
The Vocational Expert (the "VE") testified concerning plaintiff's past relevant work. Plaintiff worked as a trash truck driver, a medium exertional job that required frequent reaching and use of his hands. Tr. 71. He worked as a dispatcher, a sedentary job that required occasional reaching and handling as well as communication. Plaintiff also worked as a superintendent, a job classification normally performed at the light exertional level but performed by plaintiff at the heavy exertional level. That job required frequent reaching, handling and use of the hands and occasional stooping and bending. Tr. 71-73. Plaintiff's job as a concrete worker was heavy, and required frequent reaching, use of the hands, and occasional stooping, bending, and kneeling. His job as a laborer for an asbestos removal company was heavy and entry level. The laborer job required timing, balancing, stooping, bending and kneeling as well as frequent reaching and use of the hands. Plaintiff's job as a maintenance worker was medium and skilled. It required occasional climbing, balancing, stooping and bending as well as frequent reaching, handling and use of the hands. His work as a nurse's aid was medium and semi-skilled. It involved occasional stooping and frequent reaching, handling, and use of the hands. Tr. 72. His job as a delivery worker was medium. It required occasional stooping and bending and frequent reaching, handling and use of the hands. Tr. 73.
Plaintiff's skills from his job as a superintendent would transfer to a sedentary, semi-skilled job as timekeeper or order clerk. There are 1,200 timekeeper jobs in the relevant region and 60,000 such jobs in the United States. There are 800 order clerk jobs in the region and 42,000 in the U.S. Tr. 73.
The ALJ asked the VE to consider a person who is 50 years old, male, with a sixth-grade education, a fair to good ability to read, write and use numbers, and the past work as set forth above. Tr. 73. The ALJ asked the VE to assume that this person could perform light or sedentary work with the following restrictions: (1) can occasionally lift 20 pounds and frequently lift 10 pounds; (2) can stand, walk or sit for six hours per day; (3) has unlimited use of his arms and legs; (4) can occasionally climb, balance, stoop, kneel, crouch or crawl; (5) must avoid overhead reaching; and (6) must avoid temperature extremes and work inside an air-conditioned environment. Tr. 74. The VE testified that such a person could not perform plaintiff's past work except as dispatcher and that he could perform jobs such as timekeeper and order clerk. Tr. 74.
The ALJ then added the need to (1) avoid strenuous exertion; (2) not lift or carry over 20 pounds; (3) a fair ability (defined as seriously limited but not precluded) to remember work procedures, maintain attention for two hours, maintain regular attendance, be punctual, sustain an ordinary routine without special supervision, work in proximity to others without being distracted, make simple work-related decisions, complete a normal work day or week, perform at a consistent pace, ask simple questions, accept instruction, respond appropriately to criticism from supervisors, get along with coworkers and peers, and be aware of normal hazards and take appropriate precautions; and a poor ability to respond appropriately to changes in routine or work settings. Tr. 75. The VE testified that a person with such restrictions could not work. Tr. 76.
The VE testified that if the testimony of plaintiff's wife and pastor are fully credible, plaintiff could not work. Tr. 76. The memory problems are significant, and the physical restrictions limit him to a stand/sit option and the need to lie down. Tr. 76-77. The need to lie down would eliminate competitive employment.
The ALJ's Findings
The ALJ found that plaintiff's allegations of pain and limitations were not fully credible. He stated that the basis for the finding was as follows:
because, but not limited to the objective findings, or the lack thereof, by treating and examining physicians, the lack of medication for severe pain, the frequency of treatments by physicians and the lack of discomfort shown by the claimant at the hearing. Even more specifically, the claimant is not credible because there is minimal treatment for a back problem, the claimant usually did not allege a back problem during examinations; and he told Dr. Koresko that he had no problems sitting which is inconsistent with his testimony that he did have problems sitting.
Tr 17. The ALJ went on to state that there was never a significant diagnosis of a back problem in the objective medical evidence; rather, plaintiff was diagnosed with lumbar strain. Id. As to the cardiac problem, plaintiff underwent an angioplasty and placement of a stent. The ALJ found that plaintiff "has had very few heart related complaints," and his treating physicians have consistently limited him to lifting no more than 20 pounds. Tr. 17.
The ALJ stated that "I give more weight to Dr. Koresko's evaluation of the claimant's mental status that [sic] the comments by her [sic] treating physicians because their specialties do not include the diagnosis of mental impairments. The evaluation of the claimant's mental status is delineated on the attached Psychiatric Review Technique Form [PRFT]." Id. On the PRFT, the ALJ found that plaintiff had a "slight" degree of limitation with respect to restriction of activities of daily living and in maintaining social functioning. Tr. 17. He found that plaintiff was "seldom" limited with respect to concentration, persistence or pace, and "never" limited with respect to episodes of deterioration or decompensation in work or work-like settings. Tr. 18.
The ALJ then found that plaintiff has a residual functioning capacity to perform a complete range of light work subject to only occasional climbing, balancing, stooping, kneeling, crouching and crawling, no overhead reaching, and no extremes of heat and cold. Tr. 18.
The ALJ also found as follows:
1. The claimant is a 50 year old man having been born January 12, 1947, and as of April 23, 1993, the day after the date the claimant previously was denied benefits, the claimant met the special earnings requirements of the Act, and continued to meet them through March 31, 1996.
• The claimant has not engaged in any substantial gainful activity since April 23, 1993.
3. The claimant is impaired by back pain and angina, and such impairments are severe enough to reduce the claimant's ability to work.
4. The claimant's impairment(s) neither meet nor equal the criteria of any impairment in the Listing of Impairments.
5. The claimant has the residual functional capacity to perform a complete range of light work, subject to the limitation(s) on the residual functional capacity set forth above.
6. The claimant's impairment(s) and residual functional capacity does not preclude the claimant from performing the claimant's past relevant work as a dispatcher, and therefore, the claimant is not disabled.
Tr. 19.
Standard of Review
The ALJ's decision is binding on the Court if supported by substantial evidence. See 42 U.S.C. § 405(g); Dixon v. Heckler, 811 F.2d 506, 508 (10th Cir. 1987). The Court must determine whether the record contains substantial evidence to support the decision and whether the ALJ applied the proper legal standards. Castellano v. Secretary of Health Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). While "more than a mere scintilla," substantial evidence is only "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). 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." Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir. 1985) (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)).
Analysis
Plaintiff bears the burden of proving disability under the SSA. See Henrie v. United States Dep't of Health Human Servs., 13 F.3d 359, 360 (10th Cir. 1993); Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). The SSA defines "disability" as the inability to engage in any substantial gainful activity for at least 12 months due to a medically determinable impairment. See 42 U.S.C. § 423(d)(1)(A). To determine whether a claimant is under a disability, the Commissioner applies a five-step sequential evaluation: (1) whether the claimant is currently working; (2) whether the claimant suffers from a severe impairment or combination of impairments; (3) whether the impairment meets an impairment listed in Appendix 1 of the relevant regulation; (4) whether the impairment prevents the claimant from continuing his past relevant work; and (5) whether the impairment prevents the claimant from doing any kind of work. 20 C.F.R. § 404.1520, 416.920 (1996). Here, the ALJ denied benefits at step four, finding that plaintiff's impairment did not prevent him from continuing his past relevant work as a dispatcher.
Plaintiff first asserts that the ALJ erroneously found that plaintiff's only severe impairments are back pain and angina. Plaintiff asserts that his episodes of loss of consciousness, his memory problems and low intelligence level are also severe impairments.
An impairment or combination of impairments is "non-severe" if it does not significantly limit the individual's physical or mental ability to do "basic work activities." 20 C.F.R. § 404.1521(a), 416.921(a); Social Security Ruling 96-3p. "Basic work activities" include mental capacities for understanding, carrying out, and remembering simple instructions, using judgment, responding appropriately to supervision, co-workers, and usual work situations, and dealing with changes in a routine work setting and physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, handling, seeing, hearing, and speaking. 20 C.F.R. § 404.1521(b)(1)-(6) and 416.921(b)(1)-(6). An impairment can be considered "non-severe" only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience. See Brown v. Bowen, 827 F.2d 311, 312 (8th Cir. 1987); Akbar-Afzali v. Callahan, 968 F. Supp. 578, 583-85 (D.Kan. 1997).
The Court easily rejects plaintiff's claim that his few episodes of loss of consciousness constitute a severe impairment. Plaintiff testified that he has not had any episodes since he has been on medication. If treatment or medication reasonably controls an impairment, that impairment cannot be considered disabling. See Wiley v. Chater, 967 F. Supp. 446, 451 (D.Kan. 1997) (citing Johnson v. Bowen, 864 F.2d 340, 348 (5th Cir. 1988)). The ALJ did not err in determining that the loss of consciousness was not a severe impairment.
The ALJ's determination that plaintiff's mental functioning, including difficulty with memory, did not constitute a severe impairment requires more analysis.
When there is evidence of a mental impairment that allegedly prevents a claimant from working, the ALJ must follow the procedure for evaluating mental impairments set forth in 20 C.F.R. § 404.1520a and the Listing of Impairments and document the procedure accordingly. See Andrade v. Secretary of Health Human Servs., 985 F.2d 1045, 1048 (10th Cir. 1993). The ALJ must first determine the presence or absence of "certain medical findings which have been found especially relevant to the ability to work," sometimes referred to as the "Part A" criteria. § 20 C.F.R. § 404.1520a(b)(2). The ALJ must then evaluate the degree of functional loss resulting from the impairment, using the "Part B" criteria. § 404.1520a(b)(3). The ALJ then prepares a standard document called a Psychiatric Review Technique Form ("PRTF") that tracks the listing requirements and evaluates the claimant under the Part A and B criteria. See Woody v. Secretary of Health Human Servs., 859 F.2d 1156, 1159 (3d Cir. 1988); 20 C.F.R. § 404.1520a(d).
The ALJ evaluated the claimant on the PRTF form Part A criteria as having an organic mental disorder — specifically, a memory impairment — and a learning disorder. The ALJ then found no functional limitations under the Part B criteria. Plaintiff asserts that the ALJ's Part B criteria rating is not supported by substantial evidence in the record.
Dr. Issac, plaintiff's treating physician, rated plaintiff as seriously limited in many mental functions, including remembering work-like procedures and maintaining attention, and rated him as poor in ability to understand, remember and carry out detailed instructions. Dr. Koresko, a neuropsychologist, examined plaintiff at the ALJ's request and rated plaintiff as moderately limited in many mental functions, including remembering locations and work-like procedures, understanding, remembering and carrying out detailed instructions, and maintaining attention and concentration for extended periods. Further, Dr. Koresko found that plaintiff was moderately to markedly limited in ability to accept instructions and respond appropriately to criticism from supervisors. The ALJ nonetheless found that plaintiff had "none or slight" restrictions in activities of daily living and social functioning, "never or seldom" deficiencies in concentration, persistence or pace, and "never" in deterioration or decompensation in work or work-like settings. Thus the ALJ found that plaintiff did not meet the requirement for a severe mental impairment. See Hargis v. Sullivan, 945 F.2d 1482, 1488 (10th Cir. 1991); 20 C.F.R. § 404.1520a(c)(1) (if ratings indicate degree of limitation as none or slight in first area and second areas, never or seldom in the third area, and never in the fourth area, generally impairment is not severe.)
The record reveals some confusion based on the mental RFC forms which Dr. Issac completed. In Cruse v. United States Dep't of Health Human Servs., 49 F.3d 614, 617 (10th Cir. 1995), the Tenth Circuit recognized that the evaluation tools used to complete the PRTF did not match those used on the medical assessment forms completed by the consulting health care professionals and stated that the definition of "fair" as found on the medical assessment form is misleading. Id. at 618. The Cruse court held that the definition of "fair" as "seriously limited but not precluded" is the same as the listing requirements' definition of the term "marked," which would indicate a limitation which is" "more than moderate, but less than extreme.'" Id. (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1 12.00(C)). The Court further concluded that "`fair,' as defined on the medical assessment form, is evidence of disability." Id.
The ALJ must give a treating physician's opinion great weight except in specific circumstances, including if the physician's opinion is inconsistent with the record as a whole or is unsupported by clinical or laboratory findings. See Washington v. Shalala, 37 F.3d 1437, 1441 (10th Cir. 1994); Castellano v. Secretary of Health Human Services, 26 F.3d 1027, 1029 (10th Cir. 1994). When a treating physician's opinion is inconsistent with other medical evidence, the ALJ's task is to examine the other physician's reports to see if they outweigh the reports of the treating physician. The ALJ must give specific, legitimate reasons for disregarding the treating physician's opinion that a claimant is disabled. Id. at 290. In addition, the ALJ must consider the following specific factors to determine what weight to give any medical opinion: (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. 20 C.F.R. § 404.1527(d)(2)-(6).
Plaintiff asserts that the ALJ failed to adequately articulate his reasons for disregarding Dr. Issac's opinion as a treating physician that plaintiff has a memory problem, as well as his mental assessment ratings. In rejecting Dr. Issac's assessment, the ALJ simply stated that he gave more weight to Dr. Koresko's evaluation of plaintiff's mental status than the comments of his treating physicians because their specialties do not include the diagnosis of mental impairments. See 20 C.F.R. § 404.1527(d)(5) and 416.927(d)(5) (opinion of a specialist on issues related to her area of specialty generally entitled to more weight than the opinion of a non-specialist). Plaintiff points out, however, that the ALJ then also discounted Dr. Koresko's opinion, particularly her responses to the mental checklist. The Secretary asserts that the limitations in Dr. Koresko's checklist are not supported by objective evidence from her one-time consultative examination of plaintiff, including her finding of insufficient evidence of progressive dementia and her diagnosis of a learning disorder. The Secretary points out that Dr. Koresko found that psychological stress may have exacerbated plaintiff's memory deficiencies. The Secretary also asserts that the ALJ may properly discount the findings of Dr. Koresko because she was a nontreating physician. See Frey v. Bowen, 816 F.2d 508, 515 (10th Cir. 1987) (findings of nontreating physician based on limited contact and examination are of suspect reliability); see also Henderson v. Sullivan, 930 F.2d 19, 21 (8th Cir. 1991) (opinion of nontreating physician who sees a claimant only once is not entitled to as much weight as opinion of treating physician).
A close analysis of the ALJ's findings reveals that in determining to give little weight to Dr. Issac's opinion, and to discount Dr. Koresko's ratings on the check list, he failed to consider some of the required factors. Specifically, as to Dr. Issac, he did not address the length or nature of the treatment relationship and he failed to articulate the degree to which Dr. Issac's opinion is supported by and consistent with relevant evidence. As to Dr. Koresko, he essentially found that her checklist ratings were inconsistent with her diagnosis but did not compare her opinion to other evidence. The ALJ did note that plaintiff had never pursued treatment by a specialist for his purported memory impairment. Although the ALJ broadly stated that plaintiff's testimony was not credible — a determination which the ALJ is uniquely situated to make — he did not discuss plaintiff's testimony about his mental functioning at all. Finally, the ALJ did not address either the suggestions of Dr. Issac and Dr. Koresko that plaintiff probably suffered from depression — a condition that directly affects memory — or the fact that plaintiff had taken a variety of anti-depressants.
Thus, after rejecting the ratings of Dr. Issac and Dr. Koresko, and finding plaintiff's testimony not credible, the ALJ ultimately found that based on his own ratings of plaintiff's functioning on the PRTF, plaintiff's mental impairment was not severe. The Court is unclear upon what evidence the ALJ based these ratings. Even under this Court's very limited scope of review, it can not find that this determination is supported by substantial evidence. See Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992) (evidence is not substantial if it really constitutes not evidence but mere conclusion); Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir. 1985)(same). Further, in rejecting the opinions of Dr. Issac and Dr. Koresko, the ALJ failed to set forth an analysis of the all of the required factors. See Kepler v. Chater, 68 F.3d 387, 388-89 (10th Cir. 1995). Therefore the Court must remand the case for further proceedings for the ALJ to determine whether plaintiff's mental impairment is severe. Because the Court remands for the ALJ to evaluate plaintiff's claim of a severe mental impairment, it does not reach plaintiff's assertion that the ALJ erred in determining that he could perform his former relevant work as a dispatcher.
IT IS THEREFORE ORDERED that plaintiff's Motion for Judgment (Doc. #7) filed June 2, 2000, be and hereby is SUSTAINED. The case is REMANDED for further proceedings consistent with this order and judgment.