T. LANE WILSON, Magistrate Judge.
This matter is before the undersigned United States Magistrate Judge for a report and recommendation. Plaintiff Greggory A. Lynn seeks judicial review of the Commissioner of the Social Security Administration's decision finding that he is not disabled. As set forth below, the undersigned recommends that the Commissioner's decision denying benefits be
A claimant for disability benefits bears the burden of proving a disability. 42 U.S.C. § 423 (d)(5); 20 C.F.R. §§ 404.1512(a), 416.912(a). "Disabled" is defined under the Act as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). To meet this burden, plaintiff must provide medical evidence of an impairment and the severity of that impairment during the time of his alleged disability. 20 C.F.R. §§ 404.1512(b), 416.912(b). A disability is a physical or mental impairment "that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423 (d)(3). "A physical impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by [an individual's] statement of symptoms." 20 C.F.R. §§ 404.1508, 416.908. The evidence must come from "acceptable medical sources," such as licensed and certified psychologists and licensed physicians. 20 C.F.R. §§ 404.1513(a), 416.913(a). A plaintiff is disabled under the Act only if his "physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work in the national economy." 42 U.S.C. § 423(d)(2)(A).
Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§ 404.1520, 416.920;
In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner has applied the correct legal standards and whether the decision is supported by substantial evidence.
Plaintiff, then a 39-year old male, applied for Title II and Title XVI benefits on September 14, 2010. (R. 129-32, 133-37). Plaintiff alleged a disability onset date of June 30, 2007. (R. 129, 133). Because plaintiff's last date insured was June 30, 2007, at the ALJ hearing, plaintiff acknowledged that he was only eligible to apply for Title XVI benefits and amended his onset date to reflect his Title XVI application date. (R. 36-37, 138). Plaintiff claimed that he was unable to work due to heart issues, lower back pain, chronic knee pain, high blood pressure, diabetes, and high cholesterol. (R. 161). Plaintiff's claims for benefits were denied initially on November 18, 2010, and on reconsideration on March 3, 2011. (R. 59-72). Plaintiff then requested a hearing before an administrative law judge ("ALJ"), and the ALJ held the hearing on January 6, 2012. (R. 34-58). The ALJ issued a decision on February 21, 2012, denying benefits and finding plaintiff not disabled because he was able to perform other work. (R.16-33). The Appeals Council denied review after considering additional evidence, and plaintiff appealed. (R. 1-6; Dkt. 2).
The ALJ found that plaintiff had not engaged in substantial gainful activity since his alleged disability onset date.
The ALJ then reviewed plaintiff's testimony and the medical evidence to determine plaintiff's residual functional capacity. (R. 23-28). Plaintiff testified that he regularly dropped things, especially anything heavier than a gallon of milk. (R. 23). Plaintiff also had "problems with buttons and pins."
Plaintiff occasionally drives during the day, but he has issues with his vision.
Plaintiff also has uncontrolled diabetes.
Plaintiff's medical records indicated a history of low back pain and knee pain.
Plaintiff received multiple "bilateral L-5 transforaminal epidural injection[s] with local anesthetic and steroid" between June 2009 and December 2009.
In April 2010, plaintiff sought treatment for low back pain sustained after moving a tool box. (R. 25). A week later, plaintiff sought treatment again at a different hospital.
Plaintiff also sought pain management treatment.
With respect to his diabetes, plaintiff was hospitalized June 29-30, 2011, for "acute vision changes most likely secondary to severe hyperglycemia, and uncontrolled diabetes."
Plaintiff underwent a consultative examination in January 2009.
Plaintiff also had a consultative examination to address his vision.
In addition to the consultative examination, two non-examining agency physicians reviewed plaintiff's medical records. In November 2010, the first physician found that plaintiff could perform light work with postural limitations. (R. 26). The second physician reviewed the records in March 2011 and concurred with the first physician's assessment.
The ALJ gave great weight to both the consultative examining physicians and the nonexamining agency physicians. (R. 28).
In assessing plaintiff's credibility, the ALJ relied on plaintiff's activities of daily living, the conservative course of treatment, and inconsistencies between plaintiff's complaints and the medical records. (R. 26-27). The ALJ noted that plaintiff had only received injections and pain management treatment following his back surgery.
The ALJ concluded that plaintiff retained the residual functional capacity to perform sedentary work with a limitation that he perform no work above shoulder level. (R. 22).
The ALJ found that plaintiff had no past relevant work. (R. 28). However, relying on the testimony of a vocational expert, the ALJ found that plaintiff could perform other work, such as a microfilm document preparer (300 jobs regionally/21,900 jobs nationally), a tube operator (200 jobs regionally/22,900 jobs nationally), and an addresser (200 jobs regionally/24,900 jobs nationally). (R. 29). Accordingly, the ALJ found plaintiff not disabled.
The ALJ held the hearing on January 6, 2012. (R. 34-58). Plaintiff testified that he had not worked often in the last fifteen years. (R. 39). Plaintiff had "always tried to find a job," but when his wife was working, he stayed home with their five children.
Plaintiff testified that he could sit for an hour before having pain in his back, knees, and feet. (R. 40-41). After sitting, plaintiff would lie down "for pretty much half the day" to relieve the pain. (R. 41). He complained that he could not do more than lie in bed and watch television due to pain.
Plaintiff could only stand still for a few minutes at a time before experiencing dizziness.
Plaintiff complained of numbness and swelling in his fingers, limiting the use of his hands. (R. 44). He stated that he had these issues daily for "most of the day."
The pain in plaintiff's neck limited his ability to look left, right, up, and down. (R. 45). Plaintiff also could not bend over to put on his pants or tie his shoes. (R. 50). He had difficulty sleeping and did not find sleep aids effective. (R. 45-46). His pain medication only "takes the edge off. It just makes it a dull ache, but it still hurts." (R. 50). Plaintiff did not believe his pain was controlled enough to permit him to work. (R. 51).
Plaintiff's vision limited his ability to drive. (R. 46). He did not drive at night and was finding it difficult to see white and gray cars on sunny days.
Plaintiff alleged that his diabetes was still uncontrolled. He reported checking his blood sugar three to five times a day and taking insulin shots six times a day. (R. 48). Plaintiff stated that he could not give himself the shots.
After plaintiff testified, the ALJ questioned the vocational expert. He posed a hypothetical in which plaintiff was limited to sedentary work with an additional limitation "to avoid work above shoulder level." (R. 53). The vocational expert testified that a claimant with those limitations could work as a microfilm document preparer, a tube operator, and an addresser. (R. 54).
The ALJ then asked the vocational expert to consider whether a person with the limitations plaintiff cited could perform any work. (R. 54). The vocational expert testified that plaintiff would not be able to work.
Plaintiff's counsel also asked the vocational expert to consider an additional vision limitation in the ALJ's first hypothetical.
The ALJ discussed plaintiff's medical records accurately and in great detail. Additional discussion of plaintiff's medical records is included infra as necessary to analyze plaintiff's allegations of error.
On appeal, plaintiff raises three points of error: (1) that the Appeals Council failed to properly consider the newly submitted treating physician's opinion; (2) that the ALJ failed to consider all plaintiff's impairments and made improper findings at step five; and (3) that the ALJ failed to perform a proper credibility analysis. (Dkt. 17).
Three days after the hearing, plaintiff's treating physician completed a residual functional capacity form. (R. 481-85). The Appeals Council added the form to the administrative record but denied plaintiff's request for review. (R. 1-6). Plaintiff argues that the Appeals Council was required to discuss the treating physician's opinion and could not simply deny review. (Dkt. 17). Alternatively, plaintiff argues that the treating physician's opinion should have been given controlling weight.
The Tenth Circuit does not require the Appeals Council to explain its reasons for denying review, even when new evidence is accepted.
On appeal, the claimant argued that the Appeals Council was required to address the treatment notes and determine whether they "undercut the second ALJ's rejection of [the treating physician's] opinions."
In this case, the Appeals Council accepted the new evidence from plaintiff's treating physician and made it part of the record. (R. 5). The Appeals Council declined review, however, because the additional evidence did not render the ALJ's decision "contrary to the weight of the evidence." (R. 2). According to the ruling in
As the Tenth Circuit requires, however, the undersigned has reviewed the additional evidence as part of the administrative record to determine whether the ALJ's decision is supported by substantial evidence.
The new evidence, a residual functional capacity report from plaintiff's treating physician at the pain management clinic, states that plaintiff can sit for a total of two hours, stand for a total of one hour, and walk for ten to thirty minutes in an eight-hour work day. (R. 482). The treating physician also opined that plaintiff could lift and carry up to five pounds frequently and six to ten pounds occasionally.
In contrast, the medical records from the pain management clinic include progress reports from plaintiff and treatment notes from the treating physician. (R. 448-60). In November 2010, plaintiff reported that he still had a good bit of pain but was able to control it by taking a double dose. (R. 460). The treating physician noted that plaintiff reported better functioning in his activities of daily living and observed that plaintiff's gait and ability to sit was improved.
These records are consistent with the results of the consultative physical examination from Dr. Joel Hopper, which found that plaintiff had a slow unstable gait and some difficulty getting on and off the exam table but that plaintiff also had a normal range of motion in his neck and spine and negative results from the straight leg raise test. (R. 206-11). These records are also consistent with plaintiff's medical records from Tulsa Pain Consultants, which reflected his treatment with pain medication and epidural injections in 2009 and showed that plaintiff was able to walk without an assistive device, move all four extremities, and stand from a seated position without difficulty. (R. 217, 221, 227, 231).
In light of the consistent, objective medical evidence in the record, the undersigned finds that the new residual functional capacity report is not supported by substantial evidence and is insufficient evidence to overturn the ALJ's decision. Not only is the residual functional capacity form inconsistent with the treating physician's own notes, it is also inconsistent with the other medical evidence in the record.
For these reasons, the undersigned recommends a finding of no error on this issue.
Plaintiff also contends that the ALJ made a number of errors in evaluating plaintiff's impairments and that those errors resulted in improper findings at step five, when the ALJ found that plaintiff could perform other work. (Dkt. 17). Plaintiff argues that the ALJ should have found plaintiff's diabetic retinopathy/vision problems and numbness in his fingers to be medically determinable, if not severe, impairments that warranted the imposition of limitations in the residual functional capacity findings.
The Commissioner argues that the ALJ discussed the limitations for plaintiff's diabetic retinopathy/vision problems but concluded, based on the objective evidence and plaintiff's own testimony, that the limitations would not impact plaintiff's work activities. (Dkt. 18). Plaintiff's complaints of numbness, however, were not supported by any medical evidence.
The ALJ found that plaintiff's diabetic retinopathy was a medically nondeterminable impairment because plaintiff was "able to continue driving except at night, which indicates his vision would not interfere with ordinary work like activities." (R. 21). The medical evidence shows that plaintiff underwent a consultative examination with an ophthalmologist. (R. 216). The ophthalmologist found that plaintiff had "background diabetic retinopathy" in both eyes, but plaintiff's corrected near vision was 20/30 in both eyes and plaintiff's corrected distance vision was 20/30 in the left eye and 20/40 in the right eye.
Similarly, plaintiff's complaints of numbness in his hands are not supported by any medical evidence in the record. The consultative examining physician's report, which is the only objective medical evidence on this issue, indicates that plaintiff had normal range of motion in his wrists, hands, fingers, and thumbs. (R. 210-11). Plaintiff was able to manipulate small objects and grasp items with his hands. (R. 211).
The ALJ did not address plaintiff's complaints of blurriness and double vision. The medical records indicate that plaintiff complained of "acute visual changes" resulting from uncontrolled diabetes at the time of his one-day hospitalization in June 2011. (R. 429-34, 444). When plaintiff arrived at the hospital, he complained of blurred vision and a "kaleidoscope" effect on his vision. (R. 444). An examination revealed no abnormalities with plaintiff's corneas. (R. 442). The physician who examined plaintiff concluded that plaintiff's vision issues would resolve as his blood sugar levels normalized. (R. 444). Aside from this single incident, which was linked to plaintiff's diabetes, the only evidence of plaintiff's double vision and blurry vision is his own testimony. (R. 46-47).
The undersigned finds no error in the ALJ's failure to address plaintiff's blurriness and double vision. The regulations define an impairment as a condition that "must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. § 416.908. Further, to qualify as a severe impairment, "it must have lasted or must be expected to last for a continuous period of at least 12 months." 20 C.F.R. § 416.909. Plaintiff's complaints were a symptom of his uncontrolled diabetes, which the ALJ did find was a severe impairment. Plaintiff's vision changes, however, were not a separate impairment for a number of reasons. First, plaintiff had no physical abnormalities that would cause the symptoms of which he complained. Second, plaintiff's complaints of blurriness and double vision do not meet the duration requirement because the medical records indicate that plaintiff's vision issues were both "acute" and would resolve when plaintiff's diabetes was controlled. Accordingly, plaintiff's complaints of vision problems do not meet the definition of an impairment.
The ALJ did address plaintiff's issues with gait and limited range of motion in the right shoulder. (R. 22). Limiting plaintiff to sedentary work accommodates plaintiff's pain and gait, which the ALJ acknowledged in his discussion of the medical evidence. (R. 24). Limiting plaintiff to work below the shoulder also accommodates plaintiff's limitations in the right shoulder, as evidenced by the notation that plaintiff's "right shoulder range of motion was impaired by pain."
Plaintiff then argues that the ALJ failed to find other work in significant numbers that plaintiff could perform. The ALJ found that plaintiff could perform other work as a "micro film document preparer" (300 jobs regionally/21,900 jobs nationally); "tube operator" (200 jobs regionally/22,900 jobs nationally); and "addresser" (200 jobs regionally/24,900 jobs nationally). (R. 28). Plaintiff argues that 700 jobs regionally is insufficient to qualify as a "significant" number. (Dkt. 17).
In considering whether plaintiff could perform "other work," the ALJ was required to assess whether plaintiff could:
42 U.S.C. § 423(d)(2)(A) (emphasis added). Under the statute, then, the ALJ may determine that jobs in "significant numbers" exist based on either the availability of work regionally or nationally.
Finally, plaintiff argues that the ALJ failed to perform a proper credibility analysis. (Dkt. 17). Plaintiff contends that the ALJ did not properly consider his limited activities of daily living, relied on boilerplate language in addressing other credibility factors, miscast the evidence, and failed to consider plaintiff's inability to afford treatment.
This Court will not disturb an ALJ's credibility findings if they are supported by substantial evidence because "[c]redibility determinations are peculiarly the province of the finder of fact."
The ALJ relied on a number of factors in assessing plaintiff's credibility. The ALJ discussed plaintiff's activities of daily living, noting that plaintiff reported an ability to care for himself, to be a full-time caregiver for his children, handle finances, and drive during the day. (R. 26). The ALJ also noted, in reviewing plaintiff's conservative course of treatment, that plaintiff often sought treatment for back pain after lifting heavy objects, such as a toolbox or a transmission, another indicator that his activities were not as limited as plaintiff claimed.
The ALJ discussed plaintiff's course of treatment. The ALJ cited plaintiff's use of emergency care rather than regular treatment.
The ALJ also found that plaintiff had not alleged any side effects from his medication.
These facts, discussed in the ALJ's opinion and supported by substantial evidence in the record, are more than sufficient to support the ALJ's finding that plaintiff was not entirely credible. Plaintiff's argument regarding credibility cites to a number of facts in the record, many of which the ALJ found were not supported by the evidence. (Dkt. 17). This argument, then, is nothing more than an attempt to persuade the Court to re-weigh the evidence. The undersigned finds no evidence that the ALJ miscast the evidence or ignored evidence that weighed in favor of plaintiff's credibility. For these reasons, the undersigned recommends a finding of no error on this issue.
For the reasons set forth above, the undersigned
In accordance with 28 U.S.C. §636(b) and Fed. R. Civ. P. 72(b)(2), a party may file specific written objections to this report and recommendation. Such specific written objections must be filed with the Clerk of the District Court for the Northern District of Oklahoma by February 24, 2015.
If specific written objections are timely filed, Fed. R. Civ. P. 72(b)(3) directs the district judge to determine de novo any part of the magistrate judge's disposition to which a party has properly objected. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.
