CLIFTON L. CORKER, Magistrate Judge.
This matter is before the United States Magistrate Judge, under the standing orders of the Court and 28 U.S.C. § 636 for a report and recommendation. The plaintiff's application for supplemental security income under the Social Security Act was denied by the Commissioner following an administrative hearing before an Administrative Law Judge ["ALJ"]. This is a judicial review of that adverse decision. Plaintiff and the defendant Commissioner have both filed Motions for Summary Judgment [Docs. 11 and 15].
The sole function of this Court in making this review is to determine whether the findings of the Commissioner are supported by substantial evidence in the record. McCormick v. Secretary of Health and Human Services, 861 F.2d 998, 1001 (6
Plaintiff was 52 years of age when he filed his application for supplemental security income on January 4, 2012. He is presently 56 years old. He has a high school education. There is no dispute that he is incapable of performing his past relevant work.
Plaintiff's medical history is set forth in his brief as follows:
On June 6, 2012, Mr. Hensley established care with Kenneth Nickle, D.O.31 (Tr. 1296). He stated that he had significant pain from chronic pancreatitis. Id. An examination revealed direct epigastric tenderness and tenderness in the right and left upper quadrant of the abdomen (Tr. 1298). Dr. Nickle diagnosed chronic infectious pancreatitis. The doctor prescribed Oxycodone. Id. On June 19, 2012, Mr. Hensley returned to Dr. Nickle for follow up (Tr. 1309). The doctor diagnosed esophageal varices and added Metoprolol to Mr. Hensley's other medications (Tr. 1312). On August 16, 2012, Mr. Hensley stated that his psychiatrist had left the facility and he had begun treating with mental health practitioner Karen Lane (Tr. 1356). However, he had not been prescribed any psychiatric medications. Id. Dr. Nickle diagnosedbinsomnia, chronic infectious pancreatitis, and anxiety disorder (Tr. 1358). Mr. Hensley was prescribed Quetiapine (Seroquel), Trazodone, and Diazepam. Id. On October 16, 2012, Dr. Nickle added Bupropion to Mr. Hensley's other medications (Tr. 1353-1355).
[Doc. 12, pgs. 2-12].
Plaintiff's records were also examined by State Agency psychologist Dr. Theren Womack, Ph.D., on March 23, 2012. Dr. Womack stated that plaintiff had been diagnosed with panic and anxiety disorders, and had a history of prior alcohol dependence (Tr. 1219, 1222). Dr. Womack stated that the plaintiff had mild limitations in activities of daily living. He had moderate difficulties with regard to social functioning. Dr. Womack opined that the plaintiff had no difficulties with concentration, persistence or pace, and had not experienced any episodes of decompensation (Tr. 1224). He noted that plaintiff's reporting of life events was not consistent. In this regard, he stated that plaintiff had indicated in 2011 that he had stopped drinking alcohol in 1999, but had been diagnosed with delirium, possibly secondary to alcohol withdrawal in 2009. (Tr. 1226).
Dr. Womack stated in his Mental RFC Assessment that plaintiff was moderately limited in his ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness and in his ability to respond appropriately to changes in the work setting. (Tr. 1229) In the other 18 areas of mental functioning Dr. Womack opined the plaintiff had no significant limitations. Id. Dr. Womack's evaluation was affirmed at the reconsideration level by another State Agency psychologist, Dr. Currey (Tr. 1307).
In respect to an earlier unsuccessful application for Social Security benefits, the plaintiff was consultatively examined by Dr. Bruce Berry on March 18, 2010. Dr. Berry noted the diagnosis and treatment of the plaintiff for pancreatitis (Tr. 801-02, 806). He stated that plaintiff advised him that he had stopped drinking one year before the examination, but Dr. Berry noted that the plaintiff had been treated for delirium tremens in 2008 and 2009 (Tr. 802-804). He also noted that the plaintiff's medical records indicated that an earlier treating doctor had discharged plaintiff from his practice due to strong drug seeking behavior (Tr. 804). Based upon his exam and the other records he examined, Dr. Berry opined that the plaintiff had no "medical indication for physical restrictions or limitations" at that time (Tr. 806).
A State Agency physician, Dr. Karla Montague-Brown, examined plaintiff's records as part of that earlier proceeding, and found no severe impairment. She stated that "[t]he claimant appears to be inconsistently compliant in following prescribed treatment and/or taking medication which have brought on acute pancreatitis episodes at times." (Tr. 565).
In connection with the present application for benefits, the plaintiff's records were reviewed by Dr. Anita Johnson, another State Agency non-examining physician, on March 29, 2012. She opined that the plaintiff could lift or carry 20 pounds occasionally and 10 pounds frequently, could stand or walk for six hours, and sit for six hours in an eight area work day. She also stated plaintiff had no other physical limitations (Tr. 1239-1242). On July 4, 2012, with more intervening medical evidence submitted, including Dr. Dyer refusing to give plaintiff any more narcotics due to plaintiff's drug seeking behavior, Dr. Johnson's opinion was concurred in by another State Agency physician, Dr. Carolyn Parrish (Tr. 1314).
The ALJ conducted an administrative hearing on April 2, 2013. At the administrative hearing, he took the testimony of Dr. Robert Spangler, a vocation expert ["VE"]. The ALJ asked Dr. Spangler to assume a person of plaintiff's age, vocational history, and education who had the physical capacity set out by Dr. Womack, which was the ability to perform light work. When asked if there were any jobs, Dr. Spangler identified 8,923,517 in the nation and 188,140 in Tennessee which such a person could perform (Tr. 57-58). The ALJ then asked the VE what jobs would be available for a person who also had the degree of mental limitation opined by Dr. Lawhon in his consultative examination (Tr. 1336-1343). The VE stated that those moderate limitations would have no impact on the number of jobs (Tr. 58-59).
On May 23, 2013, the ALJ rendered his hearing decision. He first described the sequential evaluation process he must follow in analyzing plaintiff's claim. He noted that at step three of the process where he must determine the plaintiff's residual functional capacity ["RFC"], he must consider the effects of all of plaintiff's impairments, regardless of whether he found them to be severe or non-severe (Tr. 28). He then found that the plaintiff had a severe impairment of chronic pancreatitis (Tr. 29). He then discussed the opinion of Dr. Kutty, the plaintiff's treating psychiatrist, and Dr. Lawhon who performed the consultative examination at the behest of the Commissioner. He then stated that he found that the plaintiff's mental impairments imposed no more than a minimal limitation on the plaintiff's ability to perform basic mental work activities. He therefore found that the plaintiff's mental impairments did not meet the standard under the regulations to be considered severe (Tr. 29-30). He then stated his opinion regarding the degree of limitation imposed in the four functional areas known as the "paragraph B criteria." (Tr. 30). He found that the plaintiff had mild limitations in regard to his activities of daily living, social functioning and in maintaining concentration, persistence or pace. He also found the plaintiff had not had episodes of decompensation of extended duration. Id. He stated that he would be required to give "a more detailed assessment" of the effects of plaintiff's mental impairment, even though it was non-severe, further on in the sequential evaluation process (Tr. 31).
He then described in detail the reasons for finding the plaintiff's mental impairments to be non-severe. These included the fact that plaintiff had not required hospitalization for a mental health issue, the plaintiff's ability to act in his own interest, perform ordinary activities and his "generally good response to therapy and medications" set out in the treatment records (Tr. 31). He then discussed the specific records relating to the plaintiff's mental impairment. He first noted that the State Agency psychologists had opined that the plaintiff had moderate limitations in social interaction, but that he found no more than a mild limitation based on the clinical evidence and the lack of evidence of interpersonal problems with former supervisors or co-workers. He therefore assigned them "some weight." Id. He then discussed the degrees of limitations in various functions opined by Dr. Kutty. He found them "overly restrictive and clearly not supported by their own clinical findings and total case record." (Tr. 31-32).
After finding that the plaintiff did not meet any of the listing of impairments in 20 CFR Part 404, Subpart P, Appendix 1, the ALJ proceeded to state the plaintiff's RFC. He found that he had the residual functional capacity to perform the full range of light work (Tr. 32). In this context, he indicated that it was necessary to opine as to the credibility of the plaintiff in describing his symptoms. Id.
He first recounted the plaintiff's testimony. He stated plaintiff complained of the pain from his pancreatitis which often caused him to be bedfast. He noted that plaintiff said he would have an acute pancreatitis attack every four to six weeks requiring him to go to the emergency room. Plaintiff described his constant pain, and that anything could trigger an attack. He said he had been treated by the Nolachuckey Mental Health Center for over 20 years with anxiety and panic disorder. Regarding all of this, the ALJ stated that he found that plaintiff's statements regarding his symptoms were not entirely credible. (Tr. 33).
In this regard, he discussed plaintiff's medical records. First, he stated that the medical record showed "a long history of alcoholic pancreatitis, chronic pancreatitis, pseudocysts and a pancreatic mass." This led to numerous recorded visits to the emergency room. However, the ALJ noted that on all occasions the plaintiff had been treated conservatively and discharged in stable condition. Id.
He continued his analysis of plaintiff's credibility by discussing the treatment by Dr. Dyer. Dr. Dyer noted "that she had issues with the claimant taking his medications correctly and that he received narcotics from another provider" while she was treating him. She noted frequent emergency room visits for pancreatitis pain "and at least two or three hospitalizations for the same within the past 12 months." He noted she had said plaintiff would be unable to hold a regular job due to his frequent bouts of pancreatitis. (Tr. 33-34). He spoke of Dr. Nickles' treatment of plaintiff who rated plaintiff's "level of pain as eight to ten and his level of fatigue as eight to ten." He discussed the plaintiff's hospitalization in December 2011 for abdominal pain. He noted the record showed the plaintiff's abdominal pain resolved and his pancreatic enzymes went back to normal. Plaintiff was strongly advised about smoking and alcohol cessation as well as dietary modification. He was discharged on December 6, 2011 in stable condition. Id.
The ALJ noted that the plaintiff did not have evidence of weight loss with his pancreatitis and had even been told to lose weight. He also mentioned that plaintiff's treating sources did not place restrictions on him in their treatment notes. Id.
The ALJ then spoke of the evidence "throughout the record" of plaintiff's drug seeking behavior. He spoke of the ER personnel advising plaintiff he would not be given narcotics and the plaintiff becoming angry. He mentioned that Dr. Dyer told plaintiff he needed to find another health care provider because she would no longer prescribe controlled substances for him. Plaintiff was noted by the ALJ to continue to smoke and that "[s]uch evidence significantly diminishes the claimant's credibility." (Tr. 34-35).
The ALJ then stated that State Agency medical doctors were given great weight because they were well supported by the record and imaging studies. He gave little weight to Dr. Nickle's opinion. Dr. Nickle opined that the plaintiff was seriously limited in standing and walking and would need unscheduled breaks of from thirty minutes to four hours and would miss more than three days a month of work. However, the ALJ stated the only remarkable finding in Dr. Nickel's records was epigastric tenderness, and that Dr. Nickle found that the plaintiff did not appear in acute distress and that his condition was stable. He gave Dr. Nickle's opinion little weight. He gave Dr. Dyer's opinion that the plaintiff could not hold a job with his frequent recurrences of pancreatitis because it was on an issue reserved to the Commissioner and was not supported by the objective evidence (Tr. 35).
The ALJ found at step four that the plaintiff could not return to his past relevant work (Tr. 35). He then discussed the Medical-Vocational Guidelines [the "Grid"], and found that a person of plaintiff's age, past work experience, and education who could perform the full range of light work would be "not disabled" under Rule 202.14. Alternatively, the ALJ stated that the VE had opined that there were a significant number of jobs a person with the mental limitations described in Dr. Lawhon's assessment could perform. Accordingly, the ALJ found that the plaintiff was not disabled.
Plaintiff asserts that the ALJ erred in three critical respects, which he asserts require at least a remand to the Commissioner. First, plaintiff asserts that the ALJ erred by failing to find that the plaintiff suffers from a severe mental impairment. Second, he maintains that the ALJ did not properly weigh the medical evidence relating to his chronic pancreatitis in formulating his RFC finding. Third, he argues that the ALJ erred in finding that he was not completely credible.
As the plaintiff points out, at step two of the sequential analysis, an impairment is non-severe only if causes no more than a de minimis limitation on basic work activities. See, Bowen v. Yuckert, 482 U.S. 137, 158 (1987). However, it is also true that, since the ALJ found that the plaintiff's chronic pancreatitis was severe, the evaluation process proceeded, and that as a part of the step three analysis, the ALJ is required to determine the plaintiff's RFC. Both the regulations at § 416.945(a)(2) and Social Security Ruling ["SSR"] 96-8p require all impairments to be considered in formulating the RFC, whether severe or not.
There is a perceived problem, however, with the ALJ's treatment of the plaintiff's mental impairments. The ALJ, in determining plaintiff's level of severity in the mental functional areas set out in 20 C.F.R. § 416.920a, found nothing more than mild impairments in either activities of daily living, social functioning, or in maintaining concentration, persistence or pace. The difficulty lies in the fact that all of the examining and non-examining psychiatrists and psychologists found that the plaintiff suffered from at least a moderate limitation of functioning in one or more of these areas. The ALJ accorded no more than some weight to any of their opinions, and specifically disagreed with their findings of plaintiff having at least a moderate limitation in some area of mental functioning. When he found that the plaintiff did not have a severe mental impairment, he did not include any degree of mental limitation in his RFC finding.
The Court agrees with the plaintiff that the ALJ was not free to simply disregard every mental health professional's opinion. Also, his failure to do so would call into question his step five determination that the plaintiff was capable of performing a significant number of jobs from a mental standpoint. The ALJ is very knowledgeable in Social Security law. However, he is not a medical expert. See, Hall v. Celebrezze, 314 F.2d 686, 690 (6
That being said, the Court is also aware that the ALJ asked Dr. Spangler, the VE, if there were jobs which the plaintiff could perform if he had that level of mental functioning ascribed to him by Dr. Lawhon, the consultative mental health examiner. Dr. Spangler opined that the number of light jobs he identified at the light level would not be diminished with the moderate limitations set out by Dr. Lawhon. Accordingly, if Dr. Lawhon's opinion is entitled to be considered as substantial evidence, then the failure of the ALJ to find that the plaintiff had a severe mental impairment would not matter. The issue then becomes whether the ALJ erred in his analysis of the opinions of Dr. Kutty, the plaintiff's treating psychiatrist, and in the weight he gave to his opinion.
Dr. Kutty's opinion, as is true with any treating source, is only entitled to controlling weight if it is well-supported by clinical and diagnostic techniques and is not inconsistent with other substantial evidence of record. See, 20 C.F.R. § 416.927(c). An ALJ may refuse to accept all or part of the opinion of a treating source if he or she gives good reasons for the weight he assigns. Allen v. Comm'r of Soc. Sec, 561 F.3d 646, 651 (6
The ALJ's hearing decision indicates that he was very familiar with Dr. Kutty's treatment notes as well as his opinions (Tr. 29, 31-32). After recounting the contents of the Impairment Questionnaire completed by Dr. Kutty and David L. Brown, LPC (Tr. 1288-1295), the ALJ stated that their jointly-signed opinion was "overly restrictive and clearly not supported by their own clinical findings and total case record." (Tr. 32). This statement, in and of itself, is rather terse. However, it must be considered in the context of the entire hearing decision. The treatment records of Dr. Kutty and Mr. Brown indicate a person with a severe mental impairment. However, after reviewing every one of them, as did the ALJ, they do not support limitations of the magnitude contained in the Impairment Questionnaire. The plaintiff's medications were working well at managing his symptoms. Also, a great many of his complaints were about his physical problems due to his chronic pancreatitis.
Dr. Kutty's and Mr. Brown's opinions that the plaintiff has a marked level of limitations in the ability to complete a normal work week without interruptions from psychologically based symptoms, to perform at a persistent pace, in the ability to perform activities without a schedule, and to maintain attendance seem to indicate a much greater level of restriction than the treatment notes themselves. The form defines marked limitation as effectively precluding the plaintiff from performing these activities. They certainly cannot be readily reconciled with the plaintiff's activities. Also, the opinion of Dr. Lawhon, based upon his examination and diagnostic testing, appears to the Court to be more in keeping with the degree of functionality described in the treatment notes of Kutty and Brown than does their Impairment Questionnaire.
The Court recognizes that the ALJ did not ascribe the weight to the opinion of Dr. Lawhon in his hearing decision that is discussed here. However, he considered it to the degree that he included it in his question to the VE and in his alternative finding based on that question. The plaintiff does have a severe mental impairment, but the error in not so finding was cured by the inclusion of Dr. Lawhon's opinion in the question to the VE. Also, the ALJ properly considered and weighed the opinion of Dr. Kutty and Mr. Brown.
Plaintiff asserts that the ALJ erred in his RFC finding that the plaintiff could perform a full range of light work. Instead, plaintiff asserts that the ALJ erred by accepting and giving great weight to the State Agency non-examining physicians as opposed to Dr. Dyer, and in ignoring the opinion of Dr. Nickle.
Plaintiff has had a sizeable number of treating physicians for his chronic pancreatitis. These include Dr. Claes Svendsen, Dr. L. Del Bailey, Dr. Crystal Dyer, and Dr. Kenneth Nickle. One by one, the patient/physician relationship eventually ended, either due to confirmed or suspected narcotic seeking behavior of the plaintiff. This will be discussed in addressing the ALJ's findings regarding plaintiff's credibility.
On April 9, 2012, shortly before Dr. Dyer's treatment relationship with the plaintiff ended, Dr. Dyer wrote a letter addressed "to whom it may concern." She stated that the plaintiff had a history of chronic pancreatitis and esophageal varices related to a history of alcohol abuse. She stated he had numerous ER visits for flares of pancreatitis, and "at least 2 or 3 hospitalizations for the same within the past 12 months." She stated he was on "chronic narcotic medication for control of his pain." She opined that plaintiff "would be unable to hold a regular job due to his frequent recurrences of pancreatitis." She also expressed "grave concerns about Mr. Hensley's ability to work safely given the amounts of pain medication he states he requires." (Tr. 1255). In all, she treated the plaintiff from January 4 to April 27, 2012.
The ALJ gave little weight to Dr. Dyer's opinion for two stated reasons. First, he properly noted that that her opinion that plaintiff could not hold a regular job due to his regular recurrences of pancreatitis was an issue reserved to the Commissioner. Second, he stated that the opinion was also not supported by the record due to the fact that the only abnormal physical finding on examination was epigastric tenderness (Tr. 35).
Plaintiff argues that even if they are not entitled to controlling weight, medical source opinions are still entitled to deference and must be weighed in accordance with 20 C.F.R. § 416.927. All of this would be true if she was giving a medical opinion and not an opinion on whether the plaintiff can hold a regular job. Given the extremely brief relationship, and her somewhat curious statement "about Mr. Hensley's ability to work safely given the amounts of pain medication he states he requires . . ." (Tr. 1255) as well as the opinion of the State Agency physicians, the ALJ properly assessed the weight he gave to Dr. Dyer. It is true, as plaintiff states, that generally the opinions of examining doctors are given more credence than those of State Agency non-examining doctors. It is also true that the State Agency physicians did not see Dr. Dyer's letter, because they reviewed the extant records and filed their reports before Dr. Dyer wrote it. However, the State Agency physicians were doubtlessly aware of the numerous ER visits and the hospitalizations for chronic pancreatitis that Dr. Dyer's letter referred to. Therefore, Dr. Dyer's statement that plaintiff could not perform a regular job because of his pancreatitis would not have altered their assessment. Therefore, the Court finds that the ALJ was free to evaluate Dr. Dyer's letter and give it what he determined was little weight.
The plaintiff also asserts that the ALJ "completely ignored" the opinion of Dr. Nickle [Doc. 12, pg. 22]. The ALJ considered the opinion (Tr. 1392-1399) quite carefully and found it overly restrictive and not supported by his treatment records. He also had noted epigastric tenderness and some abnormal levels of pancreatic enzymes. However, it is not explained how these would translate into the severe restrictions on standing and walking and lifting set out in Dr. Nickle's questionnaire. Also, Dr. Nickle's records indicate two occasions when plaintiff advised him that he was going to be going to work soon. (Tr. 1350, 1353). The Court cannot disagree with the ALJ's basis for giving Dr. Nickle's opinion little weight. Accordingly, the Court finds that the ALJ properly evaluated the opinions of Drs. Dyer and Nickle and was justified in the weight he gave to the opinions of the State Agency physicians.
Plaintiff asserts that the ALJ erred in his assessment of plaintiff's credibility. As plaintiff asserts, the ALJ evaluates credibility under a two-step process. First, the ALJ determines whether the plaintiff's medically determinable impairments could reasonably be expected to produce the alleged symptoms. Second, if those impairments have been shown to exist, the ALJ must evaluate the intensity, persistence and limiting effects of the plaintiff's symptoms to determine the extent to which they limit the claimant's functioning. If the statements are not directly shown to be true by objective medical evidence, the ALJ must make a credibility determination based upon the record. The ALJ's credibility determination is entitled to substantial deference by a reviewing court. Ulman v. Comm'r of Soc. Sec., 693 F.3d 709-714 (6
Plaintiff seems to suggest that the ALJ is required to analyze every factor in SSR 96-7p in making his credibility determination. However, the seven factors listed in the ruling are only suggestions of "the kinds of evidence . . . that the adjudicator must consider in addition to the objective medical evidence when assessing the credibility of an individual's statements." Id. The ALJ need not discuss every one of those factors, or even every factor in the record he may have considered. See, Thacker v. Comm'r of Soc. Sec., 99 F. App'x 661, 664 (6
The ALJ stated his reasons for finding the plaintiff to be not completely credible as follows:
(Tr. 34-35).
Plaintiff first asserts that the ALJ ran afoul of SSR 96-7p by not heeding its admonition that "the adjudicator must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide." Plaintiff states that the ALJ was required to consider evidence in the record that plaintiff could not afford appropriate treatment before mentioning plaintiff not having treatment by a pain specialist as a basis to find plaintiff was not credible. The ALJ could certainly consider that the plaintiff's treatment was conservative as opposed to aggressive in nature. The ALJ did not find fault with the plaintiff for not seeking other treatment that he could not afford.
Next, plaintiff argues that the ALJ's statement that plaintiff could "stand, move about, and use his arms, hands, and legs in a satisfactory manner" does not address how the plaintiff could meet the requirements of a full-time job. By itself it does not, but it is certainly relevant to the ALJ's assessments of both the plaintiff's mental and physical abilities. Likewise, as plaintiff states, he does not have to be an invalid to be eligible for benefits, but his activities are once again a part of the mix for the ALJ to consider in determining whether the plaintiff is being completely truthful.
Plaintiff also takes issue with the ALJ's statement that continuing to smoke cigarettes after being told to quit by his doctors significantly diminished plaintiff's credibility. Admittedly, the Court could not initially see any strong connection between smoking and the credibility of a plaintiff suffering from chronic pancreatitis. However, as the defendant points out, Dr. James A. Swenson, who treated plaintiff on July 14, 2009, stated that he "strongly advised discontinuing smoking tobacco which greatly increases the risk of pancreatic cancer." (Tr. 721) [emphasis added]. In this context, it is certainly at least suggestive that the plaintiff chooses to ignore some important medical advice which could be interpreted as meaning that he does not have as severe a problem with pancreatitis as he says he does.
Plaintiff's alleged drug seeking behavior influenced the ALJ's credibility judgment of the claimant. This was emphasized by nearly every treating source, and eventually led to several physicians refusing plaintiff further treatment. Dr. Kutty expressed concern about the plaintiff's apparent need to obtain opiates (Tr. 878). Dr. Berry observed that plaintiff had been refused further treatment in 2009 due to his drug-seeking behavior (Tr. 265, 804). Dr. Nickle, on August 16, 2012, reviewed with the plaintiff "multiple narcotic request visits to [Johnson City Medical Center] as reported by Dr. Allen in JCMD [Emergency Department]. Continue
Plaintiff asserts that "[t]he fact that Mr. Hensley has sought out pain medications repeatedly through the hospital is consistent with evidence that his condition causes severe pain and his inability to afford regular pain management." [Doc. 12, pg. 24]. Admittedly, this may in fact be true. But no one knows for sure except the plaintiff himself. The ALJ, as the trier of fact in this case who is charged with determining credibility, felt that the plaintiff was seeking narcotics beyond what was needed to control his pain. That is a legitimate point for the ALJ to consider. See, Lawson v. Comm'r of Soc. Sec., 192 F. App'x 521, 528 (6
The Court also notes that drug seeking behavior was not the only area casting doubt on the plaintiff's credibility. His struggle with alcoholism which contributed to his pancreatitis was also the subject of suspect assertions. He testified at the hearing that he had not had a drink since 2000 (Tr. 52). But he was treated for delirium tremens in 2008 and 2009 (Tr. 438). He even admitted to Dr. Kutty that he had consumed alcohol with his girlfriend in June 2011 (Tr. 883).
It is also noted that the plaintiff told Dr. Lawhon that he had been sober since 1999, but, in the same interview, stated he had been arrested twice for DUI (Tr. 1337). He told Dr. Lawhon he had lost his driver's license because of a DUI in 2005. A factfinder often cannot actually know by objective evidence how much pain another person is in. But in many contexts, factfinders are obliged to make these determinations. To accomplish this, factfinders have to look to a person's propensity for truthfulness in other areas. The plaintiff denying that he had consumed alcohol since 2000 and then being arrested for DUI in 2004, and treated for delirium tremens in 2008 and 2009 is inconsistent, and it is this sort of inconsistency the ALJ must look to in order to determine if the plaintiff is being truthful when talking about his symptoms. He committed no error in evaluating plaintiff's credibility.
One other bit of evidence recognized as significant by the ALJ is the fact that the plaintiff has maintained his weight in spite of pancreatitis and the acute worrying he claims to suffer from. He is 72 inches tall and weighed 217 pounds. The ALJ noted that he was even advised to lose some weight (Tr. 34). The ALJ insinuates at least that a person with such a debilitating illness as chronic pancreatitis should not be expected to go on a diet and lose weight.
To summarize, any error on the part of the ALJ in failing to find the plaintiff's mental impairments severe was cured by his alternative question to the VE, who found that the plaintiff could perform a significant number of jobs. Also, the ALJ had substantial evidence to support the weight given to plaintiff's treating physicians and psychiatrist. Finally, there is strong evidence to support the ALJ's credibility determination. Accordingly, it is respectfully recommended that the plaintiff's Motion for Summary Judgment [Doc. 11] be DENIED, and that the defendant Commissioner's Motion for Summary Judgment [Doc. 15] be GRANTED.
Respectfully submitted,
