Opinion
CIVIL ACTION No. 01-2545-KHV
August 20, 2002
MEMORANDUM AND ORDER
Dene Vogrin brings suit under 42 U.S.C. § 405(g seeking judicial review of the Commissioner's decision to deny disability insurance benefits under Title II of the Social Security Act ("SSA"), 42 U.S.C. § 401 et seq. This matter is before the Court on Plaintiff's Brief In Support Of Petition To Reverse The Decision Of Defendant (Doc. #11) filed May 20, 2002. For reasons set forth below, plaintiff's motion is sustained in part.
Procedural Background
On February 26, 1998, plaintiff filed an application for disability insurance benefits, claiming that she had been disabled since April 18, 1997. See Certified Transcript Of The Record ("Tr.") in Answer (Doc. #6) filed February 11, 2002 at 118. Plaintiff's claim was denied initially and upon reconsideration and she timely requested a hearing. Tr. 83-98. On March 5, 1999, Administrative Law Judge John J. Rubin ("the ALJ") held a hearing. On July 27, 1999, after the hearing, the ALJ issued a written order which denied plaintiff's application for benefits. Tr. 24-33. On August 3, 1999, plaintiff timely requested review of the ALJ decision. Tr. 19. The Appeals Council received plaintiff's request on August 12, 1999. Tr. 18. On September 27, 2001, the Appeals Council denied plaintiff's request for review. Tr. 9. On November 16, 2001, plaintiff appealed to this Court.
Factual Background
The following evidence was presented to the ALJ:
Plaintiff was born on July 10, 1961. Tr. 40. At the time of the administrative hearing, she was 37 years of age. Tr. 40. Plaintiff is married and lives with her husband and 12-year-old daughter in a home that they own. Tr. 40. Plaintiff is a high school graduate and attended an area vocational technical school during her senior year, receiving a certificate of completion for the health assistant course. Tr. 40-41. When she is able, she drives five miles from her home to Christ the King Grade School where she works as a lunch monitor from 11:00 a.m. to 1:00 p.m. Tr. 41, 52-53.
Plaintiff suffers from myofascial pain syndrome and receives trigger point injections. Tr. 57.
I. Medical History
Plaintiff suffers from a repetitive motion occupational disease. Tr. 202. Plaintiff filed a worker's compensation claim for her injury and saw several doctors in preparation for that claim. Tr. 121. On March 17, 1997, Dr. Thomas W. Frederickson of Central Medical Consultants examined plaintiff. Dr. Frederickson found that plaintiff had diminished sensation in the medial aspect of both arms into her fingers and that she was complaining of pain in the neck, shoulders, elbows, knees and ankles. Tr. 191-94. On April 18, 1997, Dr. Vito J. Carabetta prepared a report which documented his visits with plaintiff on February 6, 14, and 21, 1997 and April 17, 1997, noting that plaintiff's myofascial complaints and forearm symptoms had persisted. Tr. 198. Dr. Carabetta diagnosed plaintiff with regional myofascitis affecting the mid and upper muscle region in her back, and forearm tendonitis in both arms. Utilizing the American Medical Association Guides to the Evaluation of Permanent Impairment (4th ed.), he also found that plaintiff had a 19 per cent whole person impairment and a 24 per cent permanent, incurable impairment to her upper extremities. Tr. 199.
He examined plaintiff on April 18, 1997 and noted that the spasms in her right forearm were diffuse. He also found a trace amount of spasms in her left forearm. Tr. 199. Plaintiff's range of motion between her neck and abdomen in the upper part of her trunk remained normal. Tr. 199. Dr. Carabetta found that plaintiff had experienced an increase in symptoms at the end range, especially with flexing or bending to either side. Tr. 199.
Myofascitis is the hardness of muscles due to the growth of fibrous tissue. See Stedman's Medical Dictionary ("Stedman's") 1171 (26th ed.).
Dr. Carabetta instructed plaintiff not to use her arms at or above shoulder level, and to handle or finger objects on an occasional basis only, to lift no more than ten pounds occasionally and lift no more than five pounds frequently. Tr. 200. Dr. Carabetta also prescribed Soma and Ultram for plaintiff. Tr. 201.
On July 31, 1997, Dr. P. Brent Koprivica examined plaintiff. He noted no exaggeration of symptoms and found decreased grip and range of motion in the upper extremities. Tr. 202-10. Dr. Koprivica concluded that plaintiff had developed multiple cumulative trauma disorders from working at Providence Medical Center, that she was at maximum medical improvement, that she would require indefinite medical care and medication for pain, and that she had sustained a 12 per cent whole person impairment and a 20 per cent upper arm impairment. Tr. 209. He opined that plaintiff could not return to her past job as a pharmacy technician and that she could not perform a significant percentage of the tasks that she had performed in 15 years of gainful employment. Tr. 210. On July 21, 1997, Dr. Gary Baker examined plaintiff for pain in her right hand and although he released her from care with no further treatment, he found that plaintiff had a one per cent impairment in her hand. Tr. 266. On March 7, 1998, Dr. Peter Winston of Central Medical Consultants examined plaintiff, finding minimal narrowing of the L2-3 disc space with very slight front endplate spurring and eburnation. Tr. 195.
Tinel's testing was positive in both arms and provocative testing for radial tunnel syndrome produced pain in both arms. Tr. 207. Forced elbow flexion and Tinel's finding overlying the ulnar nerve in the cubital tunnel were positive in both arms. Tr. 207-08. Dr. Koprivica also found active trigger areas above both shoulder blades and in the paracervical and parathoracic regions. Tr. 208. The trigger areas hurt during range of motion exercises with the shoulder girdles and cervical spine. Tr. 208. Plaintiff's gait was within normal limits. Tr. 208. Dr. Koprivica noted that plaintiff's trigger areas were regional in the cervicothoracic and scapular regions. Tr. 208.
Eburnation is a degenerative bone disease that changes some bone areas into a dense substance with a smooth surface like ivory. See Stedman's at 539.
Dr. Winston did not see any other lumbar spine or cervical spine abnormalities and an overall health survey found that plaintiff had normal glucose and cholesterol levels. Tr. 195-96.
On June 11, 1998, plaintiff received $72,000.00 from Providence Medical Center for her work-related injury. Tr. 267.
On March 11, 1998, plaintiff saw Dr. Patrip Patel, her regular doctor, for neck and shoulder pain. Tr. 310. Dr. Patel advised her to see a specialist. Tr. 310. On March 24, 1998, plaintiff called Dr. Patel due to bad neck and shoulder pain with active trigger points. Tr. 310. On April 4, 1998, plaintiff saw Dr. Patel, who recommended that she go to the Bethany Pain Clinic. Tr. 309.
Three weeks later, on April 24, 1998, plaintiff saw Dr. Christian H. Stehr at the Bethany Pain Clinic. Tr. 220-228. She stated that she had stabbing pain in her neck, shoulders, arms and hands and the nodules on her fingers. Tr. 222. Physical examination showed that plaintiff had shoulder tightness in both arms and tenderness in the back of the neck, but a range of motion in normal limits. Tr. 222. Dr. Stehr's clinical diagnostic impression was myofascial pain syndrome with possible fibromyalgia. Tr. 222. He recommended (1) continued therapy with Dr. Pamela S. Harris, a board-certified physical medicine and rehabilitation physician (possibly to include a TENS unit and water therapy), (2) consideration of trigger point injections for the multiple trigger points that he had found, (3) consideration of an epidural steriod, and (4) a chronic small dose of a narcotic regimen. Tr. 222-223. Also on this date, Dr. Stehr gave plaintiff ten trigger point injections. Tr. 225. Plaintiff received additional trigger point injections on May 5, 13, 18, 20, 22 and 28, 1998. Tr. 212-18, 276.
The record does not define a "TENS unit."
Two weeks later, on May 5, 1998, after the first injections, Dr. Stehr gave plaintiff ten additional trigger point injections. Tr. 218. Plaintiff was still experiencing fairly severe pain, although it was somewhat improved, and she wished to proceed with additional injections. Tr. 218. On May 13, 1998, Dr. Stehr administered 14 trigger point injections over the trapezius and back of the neck region. Tr. 216. Plaintiff's trigger points were quite tender during the injections and she began to hyperventilate. Tr. 216. Plaintiff appeared to have significant relief at the end of the 14 injections, but began to cry when told that she might not achieve complete relief from her symptoms. Tr. 216. On May 18, 1998, Dr. Stehr gave plaintiff eight trigger point injections, two in the back of the neck and six in a symmetric pattern over the trapezuis region. Tr. 213. She rated her pain as five on a scale of one to ten. Tr. 213.
On May 20, 1998, plaintiff used the TENS unit at Bethany Medical Center due to continued pain from her mid-back to shoulders. Tr. 212. Plaintiff told the nursing staff that the past two nights had been horrible and that her arms were still hurting. Tr. 212. Plaintiff also received four trigger point injections from Dr. Stehr. Tr. 276.
On May 22, 1998, plaintiff received ten more trigger point injections from Dr. Stehr at the Bethany Pain Clinic and discussed having a cervical epidural if the pain got worse. Tr. 274. Dr. Stehr learned that plaintiff's family was having a difficult time coping with her illness and told her that she would not be able to improve her condition without dealing with her family situation. Tr. 274. On May 28, 1998, Dr. Stehr examined plaintiff and noted that she had not improved after six trigger point injections. Tr. 271.
Ultimately Dr. Stehr advised plaintiff to discontinue additional injections and rely on other therapeutic interventions such as an epidural steriod in the cervical region. Tr. 271. Because myofascial pain normally responded to trigger point injections, Dr. Stehr began to believe that fibromyalgia was causing plaintiff's pain. Tr. 272. On June 11, 1998, plaintiff and her husband spoke with Dr. Stehr, who recommended that plaintiff and her husband participate in individual and joint counseling to help deal with plaintiff's condition. Tr. 269-70. On June 17, 1998, Dr. Stehr wrote Dr. Patel a letter regarding plaintiff's impairment. Tr. 268. Dr. Stehr did not make a disability determination, but he did indicate that plaintiff suffered from myofascial shoulder and neck pain that caused her significant distress. Tr. 268. Plaintiff had waves of improvement, but no progress, after numerous trigger point injections. Tr. 268. This lack of improvement indicated that plaintiff might have fibromyalgia. Tr. 268.
During this time, plaintiff began seeing Dr. Pamela Harris. Tr. 236-38. Dr. Harris found that plaintiff suffered from chronic pain syndrome of musculoskeletal origin, nodules in flexor tendons with right trigger finger (improved with injection) and depressed mood with anxiety versus adjustment reaction to disability. Tr. 237. Dr. Harris recommended that plaintiff take Serzone to help with sleep, pain, anxiety and depression. Tr. 238. She also suggested that plaintiff take Flexeril, a muscle relaxant, and use the pain management clinic and TENS unit at Bethany Medical Center. Tr. 238. On May 27, 1998, Dr. Harris sent Dr. Patel (plaintiff's regular doctor) a letter which stated that Dr. Stehr had recently changed some of plaintiff's medications because she felt overly sedated on Flexeril. Tr. 231, 282. Plaintiff was getting better sleep, although she was still waking about two times a night. Tr. 231, 282. Dr. Harris received a letter from Dr. Stehr on May 31, 1998, informing her of his treatment recommendation. He also told Dr. Harris that he was addressing plaintiff's family situation as well. Tr. 281.
During their first examination on April 21, 1998, plaintiff was on the verge of tears several times. Tr. 237. Plaintiff had moderate tenderness when touched in the back of the head with maximum tenderness in the shoulder blades, along with muscle spasms. Tr. 237. Plaintiff also had maximum tenderness in the chest muscles at her sternum, with lesser tenderness in the arm muscles. Tr. 237. Plaintiff had palpable nodules in both hands. Tr. 237.
In addition to therapy for pain, plaintiff has also received therapy for depression related to her illness. On April 24, 1998, Dr. Patel referred plaintiff to a therapist, Dr. Ben Halderman. Tr. 309. On May 11, 1998, plaintiff saw Dr. Halderman for a therapy session. She continued to see him until October 9, 1998, when she felt that she was doing well and decided to end her visits. Tr. 295-99. On July 1, 1998, Dr. R. E. Schulman conducted a psychiatric review of plaintiff. Tr. 249. He found that plaintiff's psychological problems were not severe and that she could function in an ordinary setting. Tr. 249.
On May 29, 1998, plaintiff saw Dr. Halderman for a one-hour counseling session. Tr. 299. Plaintiff reported for testing at Dr. Halderman's office on June 5, 1998. Tr. 299. On June 10, 1998, plaintiff and Dr. Halderman went over test results and he started to challenge her belief system. Tr. 297. On June 17, 1998, plaintiff saw Dr. Halderman for a one-hour counseling session where they worked on self-esteem issues. Tr. 297. On June 19, 1998, Dr. Halderman wrote Dr. Patel a letter which informed him that he was seeing plaintiff on Dr. Stehr's recommendation. Tr. 298. Dr. Halderman and Dr. Stehr believed that an antidepressant might help plaintiff turn the corner on her problems. Tr. 298.
On June 22, 1998, plaintiff saw Dr. Halderman. They discussed using hypnosis to control pain. Tr. 297. Plaintiff was concerned that she might start remembering portions of her childhood that she may have blocked out due to possible abuse by her brothers. Tr. 297. Plaintiff also could not remember much of the first five years of her marriage, although she knew that they had been extremely difficult and stressful. Tr. 297. Dr. Halderman believed that plaintiff's lack of recall indicated that she tended to deny and repress things. Tr. 297.
On July 6, 1998, plaintiff rescheduled a therapy appointment with Dr. Halderman to July 20, 1998 because she was going to the lake for a week. Tr. 295. On July 20, 1998, plaintiff saw Dr. Halderman for a one-hour counseling session. Tr. 295. Dr. Halderman observed that plaintiff looked a good deal better. Tr. 295. Plaintiff said that her improved condition was due to finishing up some projects, buying a truck with her disability settlement money and taking a recent trip to the lake. Tr. 295. Dr. Halderman and plaintiff discussed how they could deal with some of her problems more aggressively. Tr. 295. On July 29, 1998, plaintiff rescheduled her counseling appointment with Dr. Halderman to August 7, 1998. Tr. 295.
On September 4, 1998, Dr. Halderman wrote a letter to plaintiff regarding whether she needed to return to counseling. Tr. 296. He noted that they had discussed alternative ways, such as hypnosis, for her to control her pain. Tr. 296.
On June 18, 1998, Dr. Richard C. Kaspar performed a consultative psychological examination on plaintiff on behalf of the Department of Disability Determination and Referral Services of the Social Security Administration. Tr. 245. He noted that plaintiff walked slowly and sluggishly. While she was sitting, her body movement suggested considerable pain and discomfort. Tr. 245. Plaintiff avoided greeting and handshaking, again suggesting considerable pain. Tr. 246. Plaintiff was pleasant and cooperative during the examination. Tr. 246. Dr. Kaspar found that her mood was serious and sober and that she was prone to become quite teary. Tr. 246.
Mentally, plaintiff was relevant and alert. Tr. 246. She appeared to be an earnest and sincere woman, with an excellent work history and clear work ethic, who was experiencing considerable difficulty coping and dealing with pain. Tr. 246. Dr. Kaspar did not notice any evidence of feigning or malingering, and plaintiff had an earnest and debilitated manner. Tr. 246. Dr. Kaspar diagnosed plaintiff with dysthymia and adjustment disorder with depressed mood secondary to physical factors. Tr. 246.
Dysthymia is a chronic mood disorder which manifests as depression and is usually accompanied by poor appetite or over-eating, insomnia or hypersomnia, low energy or fatigue, low self-esteem, poor concentration, difficulty making decisions and feelings of hopelessness. See Stedman's at 436.
On July 8, 1998, Dr. Jack Perkins conducted a residual function exam of plaintiff. Tr. 257-265. Dr. Perkins found that plaintiff could occasionally lift 20 pounds, frequently lift or carry 10 pounds, stand and, with normal breaks, walk or sit for about six hours in an eight hour workday. He also found that her ability to push and pull was unlimited. Tr. 258. Dr. Perkins did not find any postural, manipulative, visual, communication or environmental limitations. Tr. 259-261.
On July 31, 1998, plaintiff met to discuss medications with Dr. Patel. Tr. 308. On September 1, 1998, plaintiff saw Dr. Patel for neck, shoulder and arm pain. Tr. 307. Dr. Patel believed that plaintiff was doing slightly better. Tr. 307. On September 17, 1998, plaintiff saw Dr. Patel for a medication check-up. Tr. 307. Plaintiff also saw Dr. Patel for a follow-up on October 6, 1998. Tr. 307. Plaintiff complained that the rain made her pain worse and that her hands were numb. Tr. 307. On September 10, 1998, Dr. Harris wrote Dr. Patel a letter concerning plaintiff's condition. Tr. 277. Dr. Harris noted that plaintiff's sleep pattern and pain control were better, but that she had to carefully monitor her activity level. Tr. 277. In addition, plaintiff was having difficulties due to stress which the denial of social security benefits was causing with her husband. Tr. 277. From 1997 to the present, plaintiff also saw Dr. Patel for various afflictions that appear to be unrelated to the conditions before the Court.
On February 19, 1998, plaintiff saw Dr. Patel for ear problems. Tr. 311. On March 30 and October 26, 1998, plaintiff saw Dr. Patel for sinus infection. Tr. 306, 310, 388. Plaintiff returned to Dr. Patel for sinus infection on November 2, 1998. Tr. 306, 388. On January 1, 1999, plaintiff saw Dr. Patel for pneumonia symptoms. Tr. 386. On January 5, February 17 and 22, May 5, June 16, July 28 and September 8, 1999, plaintiff saw Dr. Patel for body aches and all-over pain. Tr. 382-85, 387. On April 3, 2000, plaintiff saw Dr. Patel for pain and a possible sinus infection. Tr. 375.
On September 9, 1998, while her disability claim was pending, plaintiff apparently went to the Social Security Office to fill out additional paperwork. Tr. 185. While she was there, Kay Jones (apparently a Social Security Office employee) observed that plaintiff had a difficult time standing, was in tears from pain and could barely lift her purse. Tr. 185. Jones recorded these observations in plaintiff's file. Tr. 185.
As of January 28, 1999, plaintiff was taking the following prescription medications: Baclocen (pain and stiffness), Clonazepam (anxiety), Naproxen (pain and stiffness), Lortab (pain), Serzone (sleep aid), Climara (hysterectomy) and Kava (relaxation). Tr. 189. She also took over-the-counter St. John's Wort for depression. Tr. 189.
II. Plaintiff's Application For Benefits And Administrative Hearing
Plaintiff is right-handed, 5'4" tall and weighs 144 pounds. Tr. 41. She normally weighs 124 pounds, but gained weight due to her medication and lack of activity. Tr. 41. Plaintiff's family survives on her husband's income and $697 a month from a disability insurance policy. Tr. 45. At the time of the hearing, plaintiff was working as a lunch monitor five days a week at Christ the King School. Tr. 41. Plaintiff had held this position since the spring semester of 1998. Tr. 42. This is the only employment she has held since April 1997 and she calls in five days a month or roughly one day a week due to neck and shoulder pain and headaches. Tr. 42, 53. She does not have to lift or carry any objects during the lunch period. Tr. 42. Her job is mainly to sit or stand in various rooms and monitor the students. Tr. 43. She does not get involved in fights between students, but relies on the male lunch monitor to deal with these issues. Tr. 43. She earns $11.00 per hour for this work. Her pay is credited towards her daughter's tuition. Tr. 42.
From 1980 to April 1997, plaintiff worked at Providence Medical Center, first as a nursing assistant and later as a pharmacy assistant. Tr. 43. As a nursing assistant, plaintiff would monitor patient blood pressure and temperature, help bathe, lift, transfer and feed patients, and complete a variety of other tasks. Tr. 43-44. Plaintiff believed that lifting patients as a nursing assistant was heavy work. Tr. 60. Later, plaintiff worked as a pharmacy assistant. Tr. 44. When she started work, plaintiff had to push a 500 pound cart. She also made intravenous solutions in a sterile area. Tr. 44. Except when she was on break or restocking the room with boxes which weighed 30 to 50 pounds, plaintiff's arms were stretched out in front of her all day. Tr. 44.
In June 1996, while plaintiff was lifting heavy boxes and working as a pharmacy assistant, she developed shoulder pain which got worse down her arms. Tr. 46. Her arms became numb and she felt neck and shoulder pain. Tr. 47. A number of medical providers treated plaintiff in connection with her injury and, from time to time, the company doctor would give plaintiff a restriction which kept her entirely off work. Tr. 49. Toward the end of plaintiff's work as a pharmacy assistant, Providence Medical Center tried to accommodate her medical restrictions. Tr. 49. The medical restrictions precluded plaintiff from repetitive hand movement, use of arms in any outstretched position, and lifting more than five pounds. Tr. 50. Plaintiff tried to work an eight hour schedule but could not tolerate the work because of severe neck spasms and inability to sit for long periods. Tr. 50. The pain affected her neck, shoulders and arms. Tr. 51. Although Providence Medical Center has hundreds of jobs and employees, it ultimately told plaintiff that it had no jobs which would accommodate her medical restrictions. Tr. 51, 80. Plaintiff filed a worker's compensation claim and, as noted, ultimately received a $72,000 settlement. Tr. 47. At the hearing, the ALJ took judicial notice that this was a very high worker's compensation settlement. Tr. 73.
At the hearing plaintiff testified that she could not do a sedentary job because she could not sit for long periods of time and she had stabbing neck pain and spasms which radiated to her chest and shoulders. Tr. 61. Sitting with her neck bent causes pain. Tr. 61. Plaintiff has nodules in her hands. Tr. 57. She has difficulty sleeping and takes Serzone to help her relax and go back to sleep. Tr. 62. Pain usually wakes her up at 2:00 a.m. and she may take another Serzone tablet to get back to sleep. Tr. 62. Plaintiff hardly ever gets restful sleep. Tr. 62. Before June 1996, plaintiff did not have sleep problems. Tr. 62.
Plaintiff cannot do many of her normal household chores, including vacuuming, cleaning the bathroom, scrubbing, or doing anything that requires pulling or pushing. Tr. 55. Plaintiff's sister and daughter help with household chores. Tr. 55. Plaintiff fixes simple meals with assistance from her daughter, who also helps wash dishes and lift heavy pans and skillets. Tr. 56. Plaintiff occasionally lifts something over ten pounds, like a bag of potatoes. Tr. 63-64. She normally tries to avoid such lifting and has her daughter carry the groceries when they shop. Tr. 64. Plaintiff has a washer and dryer. She does the washing and puts the clothes in the dryer, but her husband or daughter carry the clothes to the living room and generally fold them. Tr. 64.
Plaintiff used to enjoy painting and sewing, but can no longer engage in these activities due to severe headaches and neck and elbow pain which they cause. Tr. 56-57. Plaintiff testified that even holding a pen or pencil and writing a note causes her pain. Tr. 62. When trying to write Christmas cards, for example, she could only write a couple of cards before she had to stop due to pain. Tr. 62-63. Plaintiff has problems gripping and holding on to things with either hand and she has difficulty opening doors, turning knobs and opening drawers. Tr. 63. She can tie shoes. Tr. 63. Plaintiff has a computer, but she does not use it because it is too difficult to operate the keyboard. Tr. 64-65. Plaintiff may drive short distances to her daughter's school or 4-H meetings, but she does not attempt longer distances. Tr. 55, 65. In the past six months, plaintiff and her family have not driven outside of Kansas City, Kansas because plaintiff has difficulty sitting in the car. Tr. 65. She does not do any outdoor work, such as taking care of the lawn, planting flowers or weeding. Tr. 65-66.
When she gets home from work, plaintiff is completely drained and fatigued. Tr. 60. She has a lack of energy due to the medications and she feels stressed about the pain which she suffers. Tr. 60. She experiences daily headaches and neck and shoulder spasms. Tr. 53. She has to carry her arms so they do not move because the rotation of her shoulders or elbows produces pain. Tr. 54. It is painful for plaintiff to stretch her arms out or lift her arms over her shoulders. Tr. 65. Although these symptoms are present every day, they are worse in cold weather or when the weather changes. Tr. 53. Plaintiff tries to relieve the pain by taking pain medicine and lying on the couch after work. Tr. 54. Normally she has to lie down for most of the day. Tr. 55. Plaintiff's doctors have told her that she has reached maximum improvement. Tr. 74.
Plaintiff has received 20 to 23 trigger point injections at once, which relieved the pain in the upper section of the affected muscle. Tr. 57. The lower section, however, would seize into contractions. Tr. 58. Plaintiff takes pain medication on a regular basis and she forwarded those prescriptions to the ALJ. Tr. 58.
Plaintiff also takes St. John's Wort for depression and anxiety. Tr. 58. Plaintiff first received treatment for depression in 1998, from Dr. Ben Halderman. Tr. 58-59. Before her injury at work at Providence Medical Center, plaintiff had never been treated for depression. Tr. 59. James Vogrin, plaintiff's husband of 18 years, testified at the administrative hearing. Tr. 67. Vogrin works for the Kansas City Kansas Housing Authority. His salary is $27,900.00 per year. Tr. 68. He has noticed that his wife has trouble getting up in the mornings, and she is typically asleep when he gets home from work. Tr. 69. He stated that his wife is not the person she was before her injury and that she always has a horrible disposition. Tr. 69. Vogrin attributed his wife's drowsiness and disposition to the pain which she experiences and the pain medications which she has to take. Tr. 69. He fought to get her to take on lunch monitor duties, even though it was just two hours a day, so that she could regain a part of her life. Tr. 69. The lunch monitor duties wear his wife out and leave her lying incoherent on the couch. Tr. 72. He believes that plaintiff lost her identity when she could not continue work at Providence Medical Center. Tr. 70. James Vogrin leaves for work at 7:00 a.m.
The daughter fixes her own breakfast and gets herself ready for school. Tr. 71. James Vogrin said that the family takes weekend trips to the Lake of the Ozarks. Tr. 70. During a family vacation to Estes Park, Colorado, plaintiff's condition worsened so much that the family had to come back five days early. Tr. 70-71.
Marianne K. Lumpe, a vocational expert, also testified at the administrative hearing. Tr. 74. Ms. Lumpe said that plaintiff's past relevant work history was as a pharmacy technician and a nursing assistant, semi-skilled work which plaintiff performed at a medium exertional level. Tr. 76. In response to a question from the ALJ, Ms. Lumpe testified that plaintiff could not perform her past relevant work. Tr. 77-78. The ALJ then hypothesized that plaintiff could grip light items. Tr. 78. Ms. Lumpe asked if that meant a pen or pencil and the ALJ responded that it did. Tr. 78.
Ms. Lumpe testified that the only work plaintiff could perform with her limitations was that of an unskilled information clerk. Tr. 78-79. She testified that approximately 100 information clerk jobs were available in the greater Kansas City area and 16,000 jobs were available nationally. Tr. 79. In response to a question from plaintiff's attorney, Ms. Lumpe testified that plaintiff could not work full time as an information clerk if she had neck pain and accompanying fatigue after two or three hours of work. Tr. 80. Plaintiff's attorney noted that Providence Medical Center had information clerk positions, but that they did not offer plaintiff one because of her disability. Tr. 80.
On July 27, 1999, the ALJ denied plaintiff's claim. Tr. 24-33. Plaintiff did not allege that any of her impairments met or equaled the requirements within the listing of impairments. The ALJ therefore found that he could not resolve plaintiff's case at step three of the analysis. The ALJ found that the objective medical evidence of record did not support claimant's testimony regarding her subjective complaints, functional restrictions, precipitating and aggravating factors and activities or daily living. Tr. 27. In assessing the medical record, the ALJ considered information from a consultative physical examination on March 7, 1997; an examination by Dr. Carabetta on April 18, 1997; a worker's compensation evaluation by Dr. Baker on July 21, 1997; a worker's compensation evaluation by Dr. Koprivica on July 31, 1997; an examination on April 21, 1998; a letter from Dr. Stehr and a consultative examination on April 24, 1998; a report from Dr. Stehr on June 17, 1998; a consultative psychological examination on June 18, 1998; a letter from Dr. Halderman on June 19, 1998; a psychotherapy note on July 20, 1998; a letter from Dr. Halderman on September 4, 1998; a letter from Dr. Harris on September 10, 1998; and an undated mental status examination and treatment plan. Tr. 27-28. The ALJ found that plaintiff's complaints regarding her upper extremities were credible, but that her allegations of depression were not. Tr. 28-29. The ALJ did not find any objective medical evidence that side effects of plaintiff's medications required her to rest during the day, or that the medications were not effective. Tr. 29. The ALJ gave little weight to the testimony of plaintiff's husband because it was cumulative of plaintiff's testimony, did not establish complete disability for the same reason that plaintiff's testimony did not, and may have been motivated by his wife's interest in pursuing benefits. Tr. 29. The ALJ gave little weight to the testimony of the state agency medical consultants because they did not examine plaintiff, had no treatment relationship with her, did not provide specific reasons for their opinions about plaintiff's residual functional capacity, had no specialized knowledge of her impairments and did not have access to all of the material medical evidence in the file when rendering their opinions. Tr. 29. At step four, the ALJ determined that plaintiff could not perform her past relevant work due to credible subjective allegations of pain in her upper extremities which were supported by evidence in the medical record. Tr. 30. At step five, however, the ALJ relied on vocational expert testimony to find that plaintiff could make a vocational adjustment to work as an information clerk. Tr. 31.
In his written order, the ALJ made the following findings:
1. Claimant met the earnings requirements of the Act on April 18, 1997, the alleged onset date, and continues to meet them through the date of this decision.
2. Claimant has not engaged in substantial gainful activity since April 18, 1997.
3. The medical evidence establishes that claimant has the following severe impairments: bilateral forearm extensor tendonitis, nodules in the hands, chronic myofascial pain syndrome, and a history of an adjustment disorder with a depressed mood, in remission since September 1998. Nevertheless, she does not have an impairment or combination of impairments listed in or medically equal to one listed in 20 C.F.R. Part 404, Appendix 1, Subpart P.
4. Claimant's testimony and that of her witness is not found fully credible when considered in light of the medical signs and findings, history of medical treatment, reports of treating and examining physicians and the inconsistencies in the claimant's testimony, all of which is discussed more fully in the Rationale section of this decision.
5. Claimant's combination of severe impairments prevents her from: lifting or carrying more than 5 pounds frequently or more than 10 pounds occasionally with both upper extremities; performing work activity with either upper extremity requiring hand grip strength; fine hand manipulation or dexterity more than occasionally during the workday; writing anything other than a name or brief entries in logs or reports, keyboarding or data entry, reaching out with her arms fully extended, reaching above shoulder level, engaging and pushing or pulling more than 5 pounds; and flexing or extending her neck more than occasionally during the workday. Claimant has no mental or psychological functional limitations, because her depression was fully resolved within 12 months of onset, according to the findings of her own treating psychiatrist. ( 20 C.F.R. § 404.1545).
6. Claimant is unable to perform her past relevant work.
7. Claimant is a younger individual ( 20 C.F.R. § 404.1563), and has more than a high school education ( 20 C.F.R. § 404.1568).
8. Claimant has no acquired work skills which are transferable to semi-skilled or skilled work functions of other work within her residual functional capacity.
9. Considering claimant's above-described residual functional capacity and her age, education, and past relevant work, the undersigned Administrative Law Judge is persuaded that claimant can make a vocational adjustment to other sedentary unskilled work as an information clerk which exists in significant numbers in the local and national economy. This finding is based on the testimony of the vocational expert.
10. Claimant has not been under a "disability," as defined in the Social Security Act, as amended, since her alleged onset date of disability of April 18, 1997 though the date of this decision ( 20 C.F.R. § 404.1520(f)).
Tr. 31-32.
Plaintiff filed an appeal on August 3, 1999, arguing that (1) the ALJ had engaged in an improper credibility analysis of her complaints of pain and the testimony of her treating physicians; and (2) the vocational expert did not identify sufficient jobs that plaintiff could still perform. Tr. 19, 394-397. With her appeal, plaintiff transmitted additional medical evidence to the Appeals Council, including two letters from Dr. Harris and Dr. Patel, and a report from Dr. Dale E. Darnell, an orthopaedic specialist with Dickson-Diveley Midwest Orthopaedic Clinic, to the Appeals Council. Tr. 13. Plaintiff also continued to seek relief for her symptoms of pain. Nonetheless, on September 27, 2001, the Appeals Council denied plaintiff's request for review. Tr. 9.
On January 30, 2001, Dr. Harris wrote a letter in support of plaintiff's appeal. She noted that despite therapies, trigger point injections and multiple medications, plaintiff still required narcotic medication to function for personal care tasks. Tr. 347. Dr. Harris also noted plaintiff's permanent medical restrictions of no repetitive hand use, no lifting more than five pounds frequently and no use of arms in an outstretched or overhead fashion. Id. Dr. Harris found that these restrictions prohibited plaintiff from performing most types of sedentary work, including typing, keying or writing on a sustained basis. Id. Given these limitations, Dr. Harris did not believe that plaintiff could sustain gainful employment. Id.
On February 6, 2001, Dr. Patel wrote a letter stating that he had been treating plaintiff since June 1992. Tr. 373. He pointed out that plaintiff had received many different medications, including pain medications, antidepressants and muscle relaxants, without significant relief. Id. He also noted that plaintiff had seen a number of specialists and had not obtained significant relief from intensive physical therapy and trigger point injections. Id. Dr. Patel diagnosed plaintiff with chronic myofascial neck and upper extremity pain and observed that her many pain medications made her tired and sleepy and did not provide adequate relief. Id. He opined that plaintiff continued to be disabled, despite aggressive treatment. Id.
Dr. Darnell's report was prepared in connection with an independent medical evaluation which he performed for CorVel Corporation. Tr. 312-15. His report summarized plaintiff's accident and treatment history since 1996, when she first developed generalized musculoskeletal pain in her upper thoracic spine, cervical spine, both shoulders, elbows, wrists and hands. Tr. 312. Dr. Darnell believed that plaintiff's fibromyalgia diagnosis was proper and that her complaints and areas of tenderness were compatible with this diagnosis. Tr. 314. According to Dr. Darnell, people with fibromyalgia are often unable to substantiate the severity of their complaints with objective medical findings. Tr. 314-15. Questioned whether plaintiff could work for any employer, Dr. Darnell expressed doubt that she could perform sedentary work in a satisfactory manner (because of her subjective complaints), even though a functional capacity evaluation showed that plaintiff could perform work at that level. Tr. 315. He did not feel that additional x-ray or electrodiagnostic studies would alter any of his opinions. Tr. 315. Dr. Darnell believed that for work-related purposes, plaintiff was totally disabled and that her self-described limitations and activities were reasonable in view of the history of her disease. Tr. 315.
Medical records from Bethany Medical Center from February 1 to November 7, 2000 indicate that plaintiff continued to have generalized chronic pain relating to fibromyalgia, tendonitis, carpal tunnel syndrome and chronic pain syndrome. Tr. 317-47. She took OxyContin, Demerol, Naproxen and Roxicodone for breakthrough pain. Tr. 317-47.
On September 23, 1999, Dr. Harris wrote Dr. Patel a letter about plaintiff's condition. Tr. 365-66. Plaintiff's home life had deteriorated since the Social Security Administration had denied her claim, because her husband believed that that she must not be disabled. Tr. 365. Plaintiff was also having daily headaches, back pain and had nodules on her hands. Tr. 365. Dr. Harris recommended increased medication and therapy for her home troubles. Tr. 365-66. On October 20 and November 17 and 24, 1999, plaintiff saw Dr. Patel for head, neck, shoulder, elbow and hand pain and a rash on her face. Tr. 380-81. On December 10, 1999, Dr. Harris wrote Dr. Patel a letter about plaintiff's course of treatment. Tr. 361. Plaintiff had been experiencing severe pain and cramping in her feet. Tr. 361. Plaintiff indicated that without medication her pain interfered with her daily activity most of the time and that her average pain was a six to nine on a scale of one to ten. Tr. 363. Dr. Harris started plaintiff on a regimen of Oxycontin to help with the pain. Tr. 361. On December 15, 1999, plaintiff saw Dr. Patel for neck, shoulder, elbow, hand, leg, lower back and foot pain. Tr. 379.
On February 1, 2000, plaintiff went to the hospital after suffering a fall. Tr. 317-18. Plaintiff had been doing increased activity caring for sick relatives, and she believed that her leg may have given out. Tr. 317, 325. The increased activity had caused plaintiff fatigue and pain, which she believed may have led to her injury. Tr. 325. A physical therapy exam revealed that plaintiff had pain in her shoulder and left side. Tr. 336-38. On February 7 and March 6, 2000, plaintiff visited Dr. Patel to follow up on her fall injury. Tr. 376-77.
On June 5, 2000, Dr. Harris examined plaintiff. Tr. 350-51. Plaintiff complained of aching in the shoulder and pelvic girdles, with painful trigger points and "knots" in many areas. Tr. 350. Dr. Harris sent Dr. Patel a letter which noted that pain medications helped with about 40 per cent of plaintiff's pain control but that she continued to have problems sleeping. Tr. 350. Plaintiff rated her pain on average as four to five on a scale from one to ten. Tr. 353. Dr. Harris increased plaintiff's Oxycontin to 10 milligrams in the morning and 20 at night. Tr. 351. She also changed plaintiff back to Percocet for breakthrough pain medication. Tr. 351. Dr. Harris instructed plaintiff to return as needed for problems or in four to six months for routine medication assessment. Tr. 351.
On August 22, 2000, plaintiff returned to the Bethany Pain Clinic due to all over trigger points, constant pain and inability to sleep. Tr. 344. Dr. Ananth examined plaintiff. Tr. 344. Her report indicated that plaintiff's prescriptions included Baclofen, Klonopin, Naprelan, Serzone, Oxycontin and Senokot, with Percocet once a day for breakthrough pain. Tr. 344.
On September 15, 2000, apparently because her husband had flushed some of her medications down the toilet, plaintiff went to the Bethany Pain Clinic to discuss getting refills. Tr. 343. On October 20, 24 and 25, 2000, plaintiff called or saw Dr. Patel to arrange physician referrals and prescription refills. Tr. 341-42. On November 7, 2000, plaintiff saw Dr. Patel to renew her prescription for Percocet. Tr. 340. Plaintiff had been in such pain since her Percocet ran out that she cut an Oxycontin in half to help tide herself over. Tr. 340. She had numbness and tingling in her arm. Tr. 340. In addition, her leg hurt due to a fall on the stairs in her home. Tr. 340.
On January 8, 2001, Dr. Ravi Bhagat saw plaintiff for sinus bradycardia. Tr. 370-71. Dr. Bhagat recommended an echnocardiagram and thryoid test. Tr. 370. She noted that plaintiff's medications might lead to hypertension, but that at the time, they seemed to be necessary. Tr. 370.
On November 16, 2001, plaintiff filed a claim for relief with the Court. She alleges that the ALJ erred (1) in assessing her credibility and allegations of pain; (2) in assessing the credibility of her physicians; and (3) in finding that the vocational expert had identified sufficient jobs that she could perform.
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. See Castellano v. Sec'y Of HHS, 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) (citation omitted).
Analysis
Plaintiff bears the burden of proving disability under the SSA. See 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 twelve months due to a medically determinable impairment. See 42 U.S.C.A. § 423(d)(1)(A) (1996). 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 her 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). If a claimant satisfies steps one, two and three, she will automatically be found disabled; if a claimant satisfies steps one and two, but not three, she must satisfy step four. If step four is satisfied, the burden shifts to the Commissioner to establish that the claimant is capable of performing work in the national economy. See Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988).
The ALJ found that plaintiff met step one because her work as a lunch monitor does not constitute substantial gainful activity, and also that she met step two because she had the following severe impairments: forearm tendonitis in both arms, nodules in the hands, chronic myofascial pain syndrome and a history of adjustment disorder with depressed mood, in remission since September 1998. The ALJ found that plaintiff had not met step three of the disability analysis, however, because her impairments, either singularly or in combination, did not meet or equal the level of severity of any impairment described in Appendix 1, Subpart P, 20 C.F.R. § 404. The ALJ next found, under step four, that plaintiff could not perform her past relevant work. At step five, however, the ALJ denied benefits because he found that plaintiff could perform work in the national economy.
In the step five analysis, the ALJ must determine whether — in view of her age, education and work experience — plaintiff has the residual capacity to perform other work in the national economy. See Bowen v. Yuckert, 482 U.S. 137, 148 (1987). The ALJ bears the burden of proof at step five. See id. at 146 n. 5. To meet this burden, the ALJ must find that plaintiff can perform work "in the claimant's residual functional capacity category." Talbot v. Heckler, 814 F.2d 1456, 1462 (10th Cir. 1987).
Plaintiff argues that substantial evidence does not support the ALJ's decision because the ALJ (1) did not fairly evaluate her complaints of pain and fatigue; (2) did not give proper weight to the testimony of her treating physicians; and (3) erred in finding that the vocational expert had identified sufficient jobs that she could perform.
I. Plaintiff's Subjective Complaints Of Pain
Plaintiff contends that the ALJ erred in finding that her allegations of disabling pain were not fully supported by the medical record. The Commissioner responds that the ALJ properly discounted plaintiff's subjective complaints because he gave specific reasons why he determined that her subjective complaints were not credible.
Plaintiff does not appear to contest the ALJ determination that her depression was not a disabling condition.
The Tenth Circuit has set forth the proper framework for analyzing evidence of disabling pain. The relevant factors are (1) whether claimant proves with objective medical evidence an impairment that causes pain; (2) whether a loose nexus exists between the impairment and the subjective complaints of pain; and (3) whether the pain is disabling based upon all objective and subjective evidence. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); Luna v. Bowen, 834 F.2d 161, 163-64 (10th Cir. 1987). In the final step, the ALJ should consider the following factors:
the levels of medication and their effectiveness, the extensiveness of the attempts (medical or nonmedical) to obtain relief, the frequency of medical contacts, the nature of daily activities, subjective measures of credibility that are peculiarly within the judgment of the ALJ, the motivation of and relationship between the claimant and other witnesses, and the consistency or compatibility of nonmedical testimony with objective medical evidence.
Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988).
In reviewing the credibility determination, the Court should "defer to the ALJ as trier of fact, the individual optimally positioned to observe and assess witness credibility." Casias v. Sec'y Of HHS, 933 F.2d 799, 801 (10th Cir. 1991). Credibility is the province of the ALJ. See Hamilton v. Sec'y Of HHS, 961 F.2d 1495, 1499 (10th Cir. 1992). At the same time, the ALJ must explain why specific evidence relevant to each factor supports a conclusion that a claimant's subjective complaints are not credible. See Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995); but see Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000) (Kepler does not require formalistic factor-by-factor recitation of evidence). Findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings. See Kepler, 68 F.3d at 391 (quoting Huston, 838 F.2d at 1133). In making a credibility finding, the ALJ need not totally accept or totally reject an individual's statements. See Social Security Ruling 96-7p, 61 Fed. Reg. at 34486. Rather, the ALJ "may find all, only some, or none of an individual's allegations to be credible." See id.
Plaintiff argues that the medical evidence fully supported her allegations of disabling pain. She states that she suffered chronic and constant pain and that she attempted to find relief by visiting numerous specialists and trying all types of pain treatments, including painful trigger point injections and high doses of powerful pain medications such as OxyContin, Percocet, Flexeril, Roxicodone and Demerol. Plaintiff argues that although the pain medications were at such high dosages that they made her sleepy, they did not provide adequate pain relief and her treating physician continued to believe that she was disabled. Prior to becoming disabled, plaintiff had an excellent work history and one of the Social Security Association's own medical consultants, Dr. Richard Kaspar, found that plaintiff appeared to be an earnest and sincere woman with an excellent work history and a clear work ethic who was experiencing considerable difficulty coping and dealing with pain. Tr. 246.
Although the ALJ did not find that plaintiff's pain rendered her completely disabled, he did find that it severely restricted her ability to perform physical labor. Basically, however, the ALJ did not believe that plaintiff's pain or the side effects of her medication left her so fatigued or in so much pain that she could not perform a full day of work with appropriate physical restrictions. Tr. 29.
In determining what sort of job plaintiff could perform, the ALJ found credible plaintiff's testimony that she could not (1) lift or carry more than five pounds frequently or more than 10 pounds occasionally with both arms, (2) perform work activity with either arm requiring hand grip strength, (3) engage in fine hand manipulation or dexterity more than occasionally during the workday, (4) write anything other than a name or brief entries in logs or reports, (5) perform keyboarding or data entry, (6) reach out with her arms fully extended, (7) reach above shoulder level, (8) engage in pushing or pulling more than five pounds, or (9) flex or extend her neck more than occasionally during the work day.
The record clearly indicates that plaintiff takes a great deal of medication which is only marginally helpful in controlling her pain and that she has switched her medications to avoid the side effect of drowsiness. The record does not show that plaintiff takes any sort of medication for fatigue, or that she plaintiff complained of fatigue more than once to her doctors.
Although the ALJ found that plaintiff's activities and work as a lunch monitor were inconsistent with allegations of disabling pain and fatigue, the Court notes that plaintiff and her husband explained how even this minimal amount of activity affected plaintiff. Plaintiff and her husband testified that work and vacation activities left plaintiff totally exhausted. The ALJ found that plaintiff's testimony was not credible regarding her depression. He also stated that he gave little weight to the testimony of plaintiff's husband because it (1) was cumulative of plaintiff's testimony, (2) did not establish complete disability, and (3) was possibly motivated by his wife's interest in pursuing benefits.
The determination of credibility is particularly within the province of the ALJ and he was not convinced that plaintiff's testimony on this point was credible. Based on the record, the Court can not find that his evaluation of plaintiff's credibility is unsupported by substantial evidence.
In addition, the ALJ gave little weight to the testimony of the state agency medical consultants because they did not examine plaintiff, had no treatment relationship with her, did not provide specific reasons for their opinions about plaintiff's residual functional capacity, had no specialized knowledge of her impairments and did not have access to all of the material medical evidence in the file when rendering their opinions. Tr. 29. These consultants apparently did not opine that plaintiff's complaints were totally debilitating or made her too fatigued to engage in gainful activity. Because the Court defers to the ALJ credibility determination, and based on its own review of the record, the Court finds that substantial evidence supports the ALJ analysis of this issue and that his decision should not be reversed on the ground that the ALJ did not properly evaluate her complaints of pain and fatigue.
II. Opinions Of Plaintiff's Treating Physicians
After the evidentiary hearing in March 1999, plaintiff submitted three additional medical reports to the Appeals Council. One report was dated May 26, 1999, from Dale Darnell, an orthopaedic specialist with the Dickson-Diveley Midwest Orthopaedic Clinic. Dr. Darnell noted that plaintiff's treating physicians had found her totally disabled for work-related purposes, and he expressed his opinion that plaintiff's described limitations and activities were reasonable in light of her disease process. A report from Dr. Harris, completed January 30, 2001, stated that plaintiff required narcotic medication to allow her to take care of personal tasks and that her impairment prevented her from engaging in gainful employment. Plaintiff also submitted a letter from her treating physician, Dr. Pratip Patel, dated February 6, 2001. Dr. Patel stated that although plaintiff had seen a number of specialists and had sought relief from her pain through many medications, she continued to be disabled.
Based on the record before it, including plaintiff's new evidence, the Appeals Council decided not to reverse the ALJ decision. Although the Appeals Council did not specifically state whether it found plaintiff's additional evidence to be relevant, it did not return the evidence to plaintiff, as required under 29 C.F.R. § 404.976, and it became part of the record. See Hodgson v. Apfel, 172 F.3d 62, 1999 WL 46689, at *3 (10th Cir. Sep. 3, 1999) (Appeals Council must have concluded that new evidence was relevant because it did not return evidence to plaintiff in accordance with 20 C.F.R. § 404.976(b)(1)).
Plaintiff argues that in light of the new reports, the Appeals Council should have either reversed the ALJ or remanded her claim to the ALJ for further proceedings. Plaintiff contends that had the Appeals Council remanded her claim, the ALJ would have given substantial weight to the new reports and found her disabled. The Commissioner argues that the Court should not revisit the decision to deny plaintiff's request for remand, that the ALJ decision is supported by substantial evidence even when the new evidence is considered, and that one of the reports is not entitled to particular weight because it is not from a treating physician and is based entirely on plaintiff's subjective complaints.
As an initial matter, plaintiff did not ask the Appeals Council to remand her case to the ALJ; she only asked it to reverse the ALJ decision to deny benefits. Furthermore, while plaintiff argues that the Court may review the procedural decision not to remand, she is incorrect. New evidence becomes part of the administrative record to be considered when evaluating the substantive decision of the ALJ. It does not support an independent determination that the case should have been remanded. See O'Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994). The Court will therefore review the entire record, including the new evidence, under the substantial evidence standard. See Westbrook v. Massanari, 26 Fed.Appx. 897, 900, 2002 WL 193911, at *2 (10th Cir. Feb. 8, 2002).
In O'Dell, the Tenth Circuit addressed whether, when reviewing the ALJ decision, a district court should consider new evidence which was submitted to the Appeals Council but not the ALJ. The Tenth Circuit noted that 20 C.F.R. § 404.970(b) "expressly authorizes a claimant to submit new and material evidence to the Appeals Council when seeking review of the ALJ's decision." Id. at 858. In submitting new evidence, a claimant need not show good cause for failure to submit it to the ALJ. Id.
The Commissioner argues that the first report, Dr. Darnell's letter of May 26, 1999, is not entitled to particular weight because he was not a treating physician and his opinion was only based on plaintiff's subjective complaints. See Phillips v. Apfel, 185 F.3d 875, 1999 WL 503049, at *2 (10th Cir. July 16, 1999) (ALJ may properly discount opinions not based on objective tests or other medical procedures).
The Commissioner's argument has merit. Plaintiff does not assert that Dr. Darnell was her treating physician — merely that he reviewed the reports from her treating physicians and found that their diagnoses were reasonable in light of his observations. Because plaintiff does not argue that Dr. Darnell was a treating physician, the Appeals Council did not err in failing to give his opinion substantial weight. Dr. Darnell's record does reveal, however, that he conducted a physical examination which included strength and grip tests of plaintiff's arms. The Appeals Council thus erred in giving Dr. Darnell's opinions no weight. Even if objective test results do not fully substantiate a claim, a medical opinion based on an evaluation of the patient's medical history, observations of the patient, and an evaluation of the credibility of the patient's subjective complaints of pain, is medical evidence which can support a claim of disabling pain. See Nieto v. Heckler, 750 F.2d 59, 61-62 (10th. Cir. 1984); Gatson v. Bowen, 838 F.2d 442, 447-448 (10th Cir. 1988) (medical doctor's clinical assessment is objective medical evidence of disabling pain). Dr. Darnell's opinion does not contradict the diagnoses of the other physicians and his opinion can be supported by their findings. The Court will therefore consider whether Dr. Darnell's opinion detracted from the substantial evidence necessary to support the ALJ decision.
The Court's review is hindered by the fact that the Appeals Council did not provide any evaluation of the additional evidence which plaintiff presented. See Hodgson v. Apfel, 172 F.3d 62, 1999 WL 46689, at *4 (10th Cir. Feb. 3, 1999) (failure of Appeal Council to explain its evaluation of evidence and failure of ALJ to make step four determination necessitated remand). The Court "cannot affirm the Appeals Council's reflexive confirmation of the ALJ's determination when additional evidence in the form of medical records and notes from other treating physicians, sustain the medical opinions rejected by the ALJ." Banks v. Apfel, No. 98-4212-SAC, 2000 WL 1963382, at *11 n. 1 (D.Kan. Nov. 13, 2000); see also Green v. Apfel, No. 98-4133-SAC, 1999 WL 1268372 (D.Kan. Nov. 10, 1999) (case reversed and remanded because Appeals Council did not state why new evidence still allowed denial of benefits).
In some cases, the Court may find that substantial evidence does not support the ALJ determination and reverse his denial of benefits. See Liter v. Apfel, No. 00-2231-KHV, 2001 WL 304046, at *13 (D.Kan. Feb. 16, 2001) (ALJ reversed and benefits awarded when substantial evidence did not support ALJ decision). Based upon the record as a whole, however, the Court cannot find that as a matter of law, plaintiff is entitled to disability benefits. In this case, the ALJ should re-examine the testimony of plaintiff and her physicians, including plaintiff's additional evidence that pain prevented her from working fulltime. Based on that re-examination, the ALJ must either grant plaintiff's application for benefits or provide a more satisfactory explanation regarding his findings on that issue. The Court also notes that 100 jobs as an information clerk in the Kansas City area appears to be at the low end of what might be considered sufficient. See Prince v. Apfel, 149 F.3d 1191, 1998 WL 317525, at *3 (10th Cir. 1998) (350 jobs in Oklahoma as gate tender and 50 jobs in Oklahoma as night watchman, which were representative but not exhaustive of the jobs someone with claimant's impairments could perform, were sufficient); see also Scott v. Shalala, 43 F.3d 1483, 1994 WL 708217, at *2 (10th Cir. 1994) (195 jobs in Oklahoma sufficient).
IT IS THEREFORE ORDERED that plaintiff's motion for judgment (Doc. #11) filed May 20, 2002 be and hereby is SUSTAINED in part.
IT IS FURTHER ORDERED that this case be REMANDED to the ALJ pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings not inconsistent with this order.