RICHARD G. KOPF, Senior District Judge.
Plaintiff, Linda Nellie Fisher, brings this suit challenging the Social Security Commissioner's final administrative decision denying her application for disability insurance benefits under Title II of the Social Security Act,
Plaintiff filed her application for benefits on February 2, 2008 (Tr. 171-73).
The ALJ evaluated Plaintiff's claim according to the 5-step sequential analysis prescribed by the Social Security Regulations, see
(Tr. 126-131)
Plaintiff argues that the ALJ failed to make a proper RFC assessment because he (1) summarily rejected Plaintiff's testimony and (2) did not request her treating physician to provide an opinion as to Plaintiff's residual functional capacity.
Plaintiff claimed in her application for benefits that she became disabled on January 15, 2008 (Tr. 171). In her disability report, Plaintiff alleged disability due to fibromyalgia,
In August 2006, Kent Blakely, M.D., examined Plaintiff for her complaints of pain (Tr. 531-34). He noted that he diagnosed Plaintiff with fibromyalgia during her last appointment four or five years earlier (Tr. 531). Plaintiff reported working full-time as a certified nurse's assistant (Tr. 531). Upon examination, Plaintiff had a steady gait and normal pulses, strength, sensation, and range of motion (Tr. 532-33). She had tenderness in her shoulder, hip, and knees (Tr. 532). She had 16 of 18 tender points present for fibromyalgia (Tr. 533). Her mental status examination was normal (Tr. 533). Dr. Blakely assessed morbid obesity, depression, type-2 diabetes mellitus, and fibromyalgia (Tr. 533). He prescribed medication and instructed Plaintiff to return in six months (Tr. 533-34). He also told Plaintiff that she needed to exercise regularly (Tr. 534).
In February 2007, Plaintiff told Lorinda Reece, M.D., her treating physician, that she was "thinking about trying to get permanent disability" for her fibromyalgia (Tr. 329). Plaintiff indicated she was dissatisfied with Dr. Blakely and was interested in finding another rheumatologist. Plaintiff reported working 5 to 7 days per week and experienced pain while working (Tr. 329). She also complained of numbness in her hands (Tr. 329). Plaintiff's physical examination was normal except for some tenderness in the epigastric area (Tr. 329). Dr. Reece assessed hypercholesteralemia, fibromyalgia, polymenorrhea, and type-2 diabetes (Tr. 329). Dr. Reece advised Plaintiff "that she would need to see a different physician besides myself to qualify for the disability" (Tr. 329).
Plaintiff returned to her doctor's office a few weeks later with complaints of vertigo related to a cold virus (Tr. 416). Terry Gourley, PA-C, told her to take over-the-counter Sudafed (Tr. 408). In April 2007, Plaintiff saw Mr. Gourley for an upper respiratory infection (Tr. 321, 331) Plaintiff also saw Dr. Reece in April 2007 to have her medications refilled (Tr. 281). Plaintiff was assessed with diarrhea, fibromyalgia, type-2 diabetes, and hypothyroidism (Tr. 281).
In August 2007, Plaintiff complained to Dr. Reece of acute neck pain that began the day before (Tr. 453). She also complained of low back pain that began three days earlier (Tr. 453). Her physical examination was unremarkable; she had normal muscle strength and tone, no motor and sensory changes, and no remarkable neurological findings (Tr. 454). The assessment was acute lymphadenitis and lumbago with radiation to posterior thighs bilaterally (Tr. 454). Dr. Reece told Plaintiff to stretch and to take over-the-counter pain relievers as needed (Tr. 454).
Plaintiff hurt her thigh and back putting up Christmas lights at the end of November 2007 (Tr. 408). She had point tenderness in three different places, but Mr. Gourley noted that there was no abrasion or contusion and that Plaintiff could walk on her own power (Tr. 408).
One week later, Plaintiff complained to Mr. Gourley of cough and congestion (Tr. 407). She also told him that she was trying to get disability for fibromyalgia and had been having more pain since her fall the week before (Tr. 407). Her physical examination revealed an upper respiratory infection (Tr. 407). Mr. Gourley and Plaintiff talked about Plaintiff's recurring pain and Mr. Gourley suggested she get assistance to help with medical bills (Tr. 407). In January and February 2008, Mr. Gourley prescribed medication for Plaintiff's upper respiratory infection and laryngitis (Tr. 406, 418).
In March 2008, after Plaintiff had applied for Social Security disability insurance benefits, Leland Lamberty, M.D., performed a physical consultative examination (Tr. 419-23). Plaintiff told Dr. Lamberty that she had been diagnosed with several autoimmune disorders about 10 to 15 years earlier (Tr. 419). Her other health problems included hypothyroidism, migraine headaches, hypertension, GERD, non-insulin-dependent diabetes mellitus, and obstructive sleep apnea (Tr. 419). Her weight was 252 pounds and her blood pressure was 128/84 (Tr. 420). Dr. Lamberty observed that Plaintiff appeared to be in discomfort, especially when she changed positions (Tr. 421). He noted that she moved very slowly during the examination (Tr. 421). Her vision was 20/30 in her right eye and 20/25 in her left eye with glasses (Tr. 421). She had minimal tenderness over the mid-spine, but significant tenderness in multiple areas of her back (Tr. 422). She had good range of motion in her arms and legs and her pedal pulses were excellent (Tr. 422). She had no motor or sensory deficits (Tr. 422). Dr. Lamberty concluded that Plaintiff "genuinely seems to be in pain most of the time" (Tr. 422). He stated that Plaintiff would not be able to do moderate or strenuous work and that lifting and significant twisting or squatting would be very difficult for her (Tr. 422). He opined that more sedentary type work would appear to be within her grasp, provided that she frequently changed positions and continued on her medications (Tr. 423).
Also in March 2008, Rebecca Schroeder, Ph.D., performed a psychological consultative examination of Plaintiff (Tr. 538-46). Testing indicated that Plaintiff had average scores in auditory, visual, and memory function, except a just-below average score in working memory (Tr. 543). Dr. Schroeder noted that Plaintiff appeared to struggle most on tasks requiring focus and concentration (Tr. 543). Overall, her memory function appeared to be good (Tr. 544). Plaintiff's mental status examination revealed that she was well-oriented, alert, and well-spoken, with well-developed communication skills, a good mood, and a broad affect (Tr. 544). Plaintiff stated that she was applying for disability benefits because of her physical pain (Tr. 544). Dr. Schroeder concluded that Plaintiff did not have any restrictions in her activities of daily living related to her mental health functioning (Tr. 545). She stated that Plaintiff exhibited well-developed social skills (Tr. 545). She noted that Plaintiff appeared to have occasional problems with concentration and attention, but that she seemed to be able to understand, remember, and carry out short and simple instructions under ordinary supervision (Tr. 545). She diagnosed adjustment disorder with depressed mood and assessed a global assessment of functioning (GAF) score of 75, with the highest score of 82 during the past year (Tr. 546).
In April 2008, Plaintiff complained to Dr. Reece of vaginal itching for the past month, blurred vision for the past month, and cramps and aching in her legs (Tr. 458-59). Dr. Reece also noted that Plaintiff's diabetes was uncontrolled (Tr. 459). Dr. Reece discussed risk factor modifications with Plaintiff, and advised her to exercise regularly, lose weight, eat a low fat and low cholesterol diet, monitor and control her diabetes, and control her blood pressure (Tr. 459).
Plaintiff returned to Dr. Reece in June 2008 for help with her diabetes (Tr. 455). She told Dr. Reece that she had been diagnosed with diabetes 10 years earlier at a clinic (Tr. 455). She was not checking her blood sugars and her blood sugar was poorly controlled (Tr. 455). She was fairly compliant with her medication (Tr. 455). Dr. Reece stressed the importance of risk factor modifications (Tr. 456). Plaintiff stated that she could not afford her medication and was given samples (Tr. 456).
In September and October 2008, Jeffrey Brittan, M.D., treated Plaintiff 5 times for complaints of bronchitis (Tr. 493-97). In November 2008, she went to Dr. Brittan for a recheck of her bronchitis and complained of abdominal pain (Tr. 492). Her gallbladder was removed two days later (Tr. 465). She recovered well and 10 days later was released to resume normal activities, including work (Tr. 465, 489, 510). Plaintiff told Dr. Brittan in January 2009 that although her pain never went away, she otherwise felt good (Tr. 488).
In April and June 2009, Dr. Brittan gave Plaintiff samples of medication because she was having a hard time keeping up with her medications for financial reasons (Tr. 485-86). Plaintiff returned in June 2009, complaining of high blood pressure and swelling in her feet and legs (Tr. 484). Dr. Brittan continued her medications and followed up with her two weeks later (Tr. 483-84).
At the end of June 2009, Plaintiff saw another physician in Dr. Brittan's office for diabetes education as her blood sugars had been elevated (Tr. 482). He talked with her about her food intake and told her to keep a food diary (Tr. 482). Plaintiff returned weekly during July 2009, bringing in her food diary (Tr. 479-81). Her blood sugars were reduced to 150 (Tr. 480). She lost five pounds (Tr. 481).
In December 2009, Dr. Brittan completed a letter for Plaintiff's application for disability (Tr. 536). He noted that she suffered from multiple medical problems, including diabetes with secondary complications of peripheral neuropathy, loss of vision, and some renal insufficiency (Tr. 536). He opined that the combination of all of these problems, most specifically the peripheral neuropathy from the diabetes, made it impossible for her to work (Tr. 536).
At her administrative hearing on December 4, 2009, Plaintiff testified that she had problems with diabetes, fibromyalgia, lupus, Raynaud's syndrome, scleroderma, sleep apnea, acid reflux, migraines, and problems with memory (Tr. 92). She weighed over 250 pounds (Tr. 86). She rated her pain at 3 to 5 on a 10-point scale in the morning, but stated that the pain worsened throughout the day (Tr. 99). She would have days that were worse than others, but she was always in pain, as none of her medications relieved her pain completely (Tr. 95, 99-100). She stated that a warm bath helped, but she had to be careful with the heat because her lupus flared up and she could not use ice because then she had trouble with her Raynaud's disease (Tr. 95).
In describing her daily life, Plaintiff stated she lived with her husband in a house and did not have any children (Tr. 87). She could drive, but her husband did most of the driving (Tr. 87). She could care for her personal needs, although her husband occasionally helped her with her hair, and helped her with her socks and shoes every day (Tr. 87). Plaintiff testified that she performed some household chores, with her husband's help (Tr. 88). She would clean up around the house, taking breaks after 10 to 15 minutes of work (Tr. 88). She spent most of her day sitting or laying down and watched about 4 hours of television each day (Tr. 88-89, 101). She testified that she would visit friends and family (Tr. 89). She also worked for 8 hours per night, 2 nights per week at an assisted living facility (Tr. 90). Plaintiff testified that she did not go to the doctor frequently unless she was really sick, because she did not have money to pay her doctor's bill (Tr. 93). In describing her physical capabilities, Plaintiff stated that she could sit for 20 to 30 minutes, stand for 15 to 20 minutes, walk around the block, and lift 10 to 15 pounds (Tr. 96-97). Plaintiff stated she had problems picking up small objects from a table, turning a key, and opening a can of pop (Tr. 97-98).
Jose Chaparro, a vocational expert, testified in response to a hypothetical question posed by the ALJ, outlining Plaintiff's age, education, work experience, and work-related limitations (Tr. 106-10). The hypothetical individual could lift 10 pounds occasionally and frequently, could sit or stand at will, and could occasionally stoop, crawl, and kneel (Tr. 107). Considering the exertional and non-exertional limitations described by the ALJ, the vocational expert testified that the hypothetical person could perform representative occupations of nut sorter, production worker, and call out operator (Tr. 108-09).
The applicable standard of review is whether the Commissioner's decision is supported by substantial evidence on the record as a whole. See
"The credibility of a claimant's subjective testimony is primarily for the ALJ to decide, not the courts."
Plaintiff argues that the ALJ made a conclusory statement of her credibility, contrary to the requirements of Social Security Rulings 96-7p and 96-8p.
First, the ALJ noted that there were very few objective findings to support Plaintiff's complaints (Tr. 126-28). The absence of an objective medical basis to support the degree of Plaintiff's subjective complaints is an important factor in evaluating the credibility of the claimant's testimony and complaints. See
During her physical consultative examination in March 2008, Plaintiff moved slowly and appeared to be in discomfort but she had good range of motion of both upper and lower extremities (Tr. 419-22). Her pedal pulses were excellent (Tr. 422). She had no motor or sensory deficits (Tr. 422). Dr. Lamberty opined that more sedentary type work would appear to be within her grasp, provided that she frequently changed positions and continued on her medications (Tr. 423). Dr. Brittan's records do not reflect any severe or limiting physical findings (Tr. 479-88). Although the ALJ did not discredit Plaintiff solely based on the absence of objective findings to support her assertions, the lack of objective findings was an important consideration for him in evaluating Plaintiff's credibility.
The ALJ also considered that Plaintiff's treatment was conservative in nature (Tr. 126-27). Her office visits were for treatment for acute illnesses (Tr. 126-27, 321, 331, 407-08, 416, 453-54, 458-59, 492, 494-97) or medication refills (Tr. 126-27, 281, 455-56, 479-88). The Eighth Circuit has consistently held that allegations of a disabling impairment may be properly discounted because of inconsistencies such as minimal or conservative medical treatment. See, e.g.,
Plaintiff testified that she did not visit the doctor often because she owes on her bill and has no way to pay it (Tr. 93). Although economic justifications for the lack of treatment can be relevant to a disability determination, Plaintiff offered no testimony or other evidence that she had been denied further treatment or access to prescription medicine on account of financial constraints. See
The ALJ determined that Plaintiff's depression was medically determinable, but not severe (Tr. 127). He included in his decision his rationale for reaching that conclusion (Tr. 127). See
In evaluating her activities of daily living, the ALJ considered Plaintiff's testimony at the administrative hearing that she cared for most of her personal grooming, performed household chores with her husband's help, watched television, and worked part time (Tr. 87-90, 127). Activities that are inconsistent with a claimant's assertion of disability reflect negatively upon that claimant's credibility. See
The ALJ also considered that when Plaintiff had poor blood sugar control in June 2008, she was not checking her blood sugars (Tr. 129, 456). "A failure to follow a recommended course of treatment also weighs against a claimant's credibility."
The ALJ articulated the inconsistencies upon which he relied in discrediting Plaintiff's testimony regarding her subjective complaints (Tr. 128-30). Substantial evidence on the record as a whole supports the ALJ's credibility determination. See
An ALJ must give a treating physician's opinion controlling weight if it is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record.
The ALJ recognized Dr. Brittan's opinion was conclusory and not entitled to controlling weight, but still evaluated the opinion as required by the regulations and found it was not persuasive (Tr. 130). See
Dr. Brittan treated Plaintiff in the fall 2008 for bronchitis (Tr. 494-97). He rechecked her diabetes from April 2009 through July 2009 (Tr. 479-88). His medical records do not contain any objective findings to support a claim that Plaintiff could not work. There is one record of swelling in her feet and legs that Dr. Brittan treated with medication (Tr. 484). Other physical examinations show that Plaintiff had normal muscle strength and tone and normal gait (Tr. 422, 454, 532). Although Dr. Brittan stated that Plaintiff could not work primarily due to her peripheral neuropathy, there are no records that Plaintiff demonstrated any limitations from her neuropathy. Her examinations showed normal pedal pulses and sensation in all extremities (Tr. 422, 454, 532). Her gait and ability to walk were not affected (Tr. 408, 422, 532). Dr. Brittan's opinion that it was impossible for Plaintiff to work is inconsistent with the objective medical evidence of record.
None of Plaintiff's other physicians opined that she was disabled. Dr. Reece told Plaintiff that she would need to see a different physician to qualify for disability (Tr. 329). Dr. Lamberty opined that Plaintiff could perform sedentary work with frequent position changes (Tr. 423). The doctor who removed Plaintiff's gall bladder released her to resume normal activities, including work (Tr. 465, 489, 510). Rather than limiting her activity, Plaintiff's doctors encouraged her to move more and exercise (Tr. 454, 534). Dr. Blakely told Plaintiff that she would not feel better unless she participated in regular exercise (Tr. 534). Dr. Reece also told Plaintiff to exercise regularly as part of her risk factor modifications (Tr. 456, 459).
The ALJ found that although Dr. Brittan was Plaintiff's treating physician, the opinion of the consultative examiner was most consistent with the sparse medical evidence and was entitled to significant weight (Tr. 130). An ALJ is warranted in discrediting some of the treating physician's opinions which are inconsistent with, and contradicted by, other evidence in the record. See
Plaintiff argues that the ALJ had a duty to contact Dr. Brittan and have him complete the appropriate RFC criteria forms. This is not the law. The duty to "fully and fairly develop the record" concerning a claimant's limitations only exists where the professional opinions available are not sufficient to allow the ALJ to form an opinion. See
Accordingly, I conclude that the ALJ's decision is supported by substantial evidence on the record as a whole and is not contrary to law.
IT IS ORDERED that the decision of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). Final judgment will be entered by separate document.