JOSEPH R. McCROREY, Magistrate Judge.
This case is before the Court pursuant to Local Civil Rules 73.02(B)(2)(a) and 83.VII.02,
Plaintiff applied for DIB and SSI on February 6, 2003, alleging disability as of September 11, 2001. Plaintiff's applications were denied initially and on reconsideration, and she requested a hearing before an administrative law judge ("ALJ"). A hearing was held on June 10, 2004, at which Plaintiff and a vocational expert ("VE") appeared and testified. In a decision dated May 27, 2005, the ALJ found that Plaintiff was not disabled and denied benefits concluding that work existed in the national economy which Plaintiff could perform. On February 9, 2006, the Appeals Council denied Plaintiff's request for review, making the decision of the ALJ the final decision of the Commissioner. Plaintiff then filed an action (C/A No. 3:06-1083-JRM) in the United States District Court on April 7, 2006.
After review of that case, the undersigned determined that the Commissioner's decision was not supported by substantial evidence, and the case was remanded to the Commissioner to consider medical records submitted to the Appeals Council.
On remand, a hearing was held before the ALJ on February 7, 2008, at which Plaintiff appeared and testified. On March 28, 2008, the ALJ issued a decision denying benefits and finding that Plaintiff was not disabled. The ALJ, after hearing the testimony of a VE, concluded that work exists in the national economy which Plaintiff could perform.
Plaintiff was forty-five years old at the time of her alleged onset of disability and fifty-two years old at the time of the ALJ's decision. She has a high school education (GED) and a two-year technical degree in health sciences (Tr. 68, 226-227), with past relevant work as a sales associate. Plaintiff alleges disability due to fibromyalgia and depression.
The ALJ found (Tr. 274-283):
On September 2, 2010, the Appeals Council considered Plaintiff's letter of exceptions, but did not find that the ALJ erred in following the instructions in this Court's September 19, 2007 order. The Appeals Council also noted that the ALJ's decision was supported by substantial evidence. Tr. 256-259. The ALJ's decision is the final decision of the Commissioner after remand from the District Court. Plaintiff filed this action in the United States District Court on October 29, 2010.
The only issues before this Court are whether correct legal principles were applied and whether the Commissioner's findings of fact are supported by substantial evidence.
On June 6, 2000, Plaintiff was diagnosed with hepatitis C. Tr. 119. Plaintiff was treated at Berkeley Family Practice for various ailments (including vomiting, headaches, and diarrhea in February 2001 and body aches and hip pain in November 2001) from March 2000 to March 2003. Tr. 101-118. On July 21, 2001, Plaintiff was treated in the emergency room for acute vomiting and diarrhea. She was given intravenous saline, prescribed medication, and released. Tr. 86-88. Plaintiff's hepatitis was followed by Dr. J. Gregory Thomas, from September 2001 to July 2003. Tr. 150-158. On September 12, 2001, Dr. Thomas noted that Plaintiff's recent liver panel was normal. Physical examination was unremarkable and Plaintiff denied any other medical problems, complaints, or complications. Dr. Thomas assessed hepatitis C and indicated that he might treat Plaintiff with Interferon at some point in the future. Tr. 155-156. On January 4, 2002, Dr. Thomas indicated that he would withhold treatment for Plaintiff's hepatitis C until Plaintiff's fibromyalgia was under better control. Tr. 154. On September 3, 2002, Dr. Thomas wrote that Plaintiff had a very low viral load and almost normal transaminase levels. Tr. 153. Dr. Thomas noted that Plaintiff had normal liver enzymes and a barely detectable hepatitis C viral load on December 18, 2002. Plaintiff complained of a high level of anxiety related to caring for her son, who was undergoing Interferon treatment for hepatitis C. Dr. Thomas assessed that Plaintiff had hepatitis C, chronic pain, fibromyalgia, and chronic anxiety. Tr. 152. On April 1, 2003, Dr. Thomas noted that Plaintiff continued to have normal liver enzymes and a barely detectable hepatitis C viral load. Tr. 151. Her condition was unchanged at a follow-up visit in July 2003. Tr. 150.
Dr. J. Grant Taylor, a rheumatologist, began treating Plaintiff in November 2001. Plaintiff complained about muscular and joint pain, and morning stiffness. She reported an onset of diffuse pain two months earlier in her hips, knees, shoulders, low back, and elbows, which worsened with activity. Plaintiff reported some pain relief with Tylenol, Soma, and Ultram. She also complained of episodic nausea, depression, agitation, and sleep problems. Dr. Taylor noted that Plaintiff had diffuse tenderness over her back and joints, but she retained full range of motion in all joints, brisk reflexes, normal strength, and normal sensation. Dr. Taylor diagnosed fibromyalgia, and indicated that Plaintiff's hepatitis was not likely the cause of her symptoms. He recommended that Plaintiff start an exercise program and refilled her medications. Tr. 145-149. On December 17, 2001, Plaintiff complained of worsening pain and an inability to sleep more than two hours at a time. She denied any joint swelling and stated that her medication was no longer working. Plaintiff reported that she was unemployed and was experiencing financial difficulties. Dr. Taylor diagnosed fibromyalgia and depression and added Darvocet and Ambien to her medications. Tr. 140-141.
On March 20, 2002, Plaintiff told Dr. Taylor that she had recently obtained a job as a bookkeeper at a bar. She stated she had a week-long episode of vomiting, which spontaneously resolved. Plaintiff reported that she had discontinued exercising, her stress level had improved, she did not have any joint swelling, and she had ongoing pain. Tr. 135-136. On May 3, 2002, Plaintiff reported to Dr. Taylor that she had been fired from her job and had full-time custody of her two-year-old grandson. Dr. Taylor noted that Plaintiff complained of intermittent aches and pains, but from a musculoskeletal standpoint she seemed to be doing okay. Plaintiff indicated that her pain level was low, she tolerated her medications well, and she slept well. Dr. Taylor opined that Plaintiff's fibromyalgia was stable on medication. Tr. 133. On July 1, 2002, Dr. Taylor noted that Plaintiff's health had improved since her last visit, and that she denied any radicular symptoms, prolonged stiffness, or joint swelling. Plaintiff reported that she was still caring for her young grandson, remained unemployed, and had recently moved in with her boyfriend. Dr. Taylor opined that Plaintiff's fibromyalgia and hepatitis C were stable. Tr. 131. On September 4, 2002, Plaintiff reported that she was doing fairly well and was actively applying for a job at a photography studio. Tr. 129. On October 23, 2002, Plaintiff complained of worsening diffuse pain after her medications ran out. She also reported that she spent hours each day looking for work. Tr. 127.
Plaintiff reported ongoing pain, worsened anxiety, and frequent muscle spasms on January 6, 2003. Dr. Taylor prescribed Lexapro for anxiety. Tr. 125. On March 12, 2003, Plaintiff complained of continued pain, but reported that her mood and anxiety had improved. Dr. Taylor noted that Plaintiff's fibromyalgia was stable and her anxiety was improved with Lexapro. Tr. 123. On June 23, 2003, Plaintiff reported that she was sleeping poorly, she had run out of Soma two to three days previously, and a chiropractor provided some relief with massage. Dr. Taylor noted that Plaintiff was diffusely tender over her neck and shoulders. He assessed that Plaintiff's fibromyalgia was stable, refilled Plaintiff's medications, and arranged a referral to another rheumatologist, as he was closing his practice. Tr. 122.
On August 13, 2003, Dr. Herbert Gorod, a State agency psychiatrist, reviewed Plaintiff's records and opined that her affective and anxiety disorders were not severe, in that they produced mild limitations in her activities of daily living, social functioning, and concentration, persistence, and pace, and no episodes of decompensation. Tr. 163-176.
Plaintiff began treatment with Dr. Gregory W. Niemer, a rheumatologist, on September 9, 2003. Dr. Niemer noted that Plaintiff had a "long history of fibromyalgia, along with osteoarthritis of the right hip and hepatitis C." Mild pain with hip motion and multiple trigger points were found on physical examination. Dr. Niemer opined that Plaintiff's symptoms were from fibromyalgia and there was no evidence of active arthritis. He noted that Plaintiff had responded well to Neurontin and increased her dosage. Tr. 184. Dr. Niemer examined Plaintiff again on October 3, October 14, November 13, and December 12, 2003. Tr. 177-181, 191-193.
On January 14, 2004, State agency physician Dr. W. Cain reviewed Plaintiff's records and assessed her physical residual functional capacity ("RFC"). He opined that she could lift fifty pounds occasionally, lift twenty-five pounds frequently, stand and/or walk for six hours in an eight-hour workday, and sit for six hours in an eight-hour workday. No other limitations were noted. Tr. 93-100.
On April 4, 2004, Dr. Niemer completed an affidavit in which he opined that Plaintiff was "disabled as a result of her medical conditions in that her condition is the same or just as severe as the following listing(s): 4.11 [and] 4.12[.]" Tr. 193.
On July 6, 2005, Dr. Niemer completed a form titled "Attending Physician's Statement" in which he opined that Plaintiff could lift and/or carry up to ten pounds occasionally and up to five pounds frequently, could sit for only three hours in an eight-hour workday, and could stand and/or walk for only one hour in an eight-hour workday. He also opined that Plaintiff should avoid dust, fumes, gases, extremes of temperatures, humidity, and other environmental pollutants; could never bend or stoop; could rarely push, pull, climb, balance, perform fine manipulation, or reach; and could occasionally perform gross manipulations, operate a motor vehicle, and work with and around hazardous machinery. Dr. Niemer also thought that Plaintiff would be absent from work more than four days per month. Tr. 202.
In December 2005, Dr. Niemer completed an Attending Physician's Statement, in which he opined that Plaintiff could lift up to five pounds occasionally and one pound frequently; sit for three hours and stand/walk for one hour per eight-hour workday; needed to avoid dust, fumes, gases, and extremes of temperature and humidity; could never bend, stoop or climb; could rarely push, pull, use fine manipulation, reach, and work around hazardous machinery; and occasionally could do gross manipulation and operate motor vehicles. Tr. 574.
Additionally, treatment notes indicate that Dr. Niemer continued to treat Plaintiff approximately once every two months from January 2006 to November 2007. Tr. 471-511, 555-559. On January 26 2006, Dr. Niemer opined that Plaintiff was completely disabled due to symptoms caused by fibromyalgia, osteoarthritis of her hips, chronic insomnia, and depression. Tr. 575.
On January 26, 2006, Dr. Marcus Shaeffer examined Plaintiff and noted that Plaintiff complained of fibromyalgia and depression. Plaintiff reported that she was able to drive, take care of her personal needs, cook, wash dishes, and do laundry. Examination revealed tenderness in her abdomen, sixty percent range of motion in her lumbar spine, and full range of motion of her upper extremities. Plaintiff was able to get on and off the examination table, squat, heel and toe walk, and walk fifty feet without any apparent problem. Dr. Schaeffer assessed fibromyalgia and recommended that Plaintiff be limited to light or sedentary work. Tr. 576-580.
In February 8, 2006, Dr. George Chandler, a State agency physician, reviewed Plaintiff's records. He opined that Plaintiff could lift, carry, push, and pull fifty pounds occasionally and twenty-five pounds frequently; sit for about six hours in an eight-hour workday; walk for about six hours in an eight-hour workday; frequently perform all postural activities; and had no visual, communicative, manipulative, or environmental limitations. Tr. 581-588. On February 13, 2006, Dr. Mark Williams, a State agency psychologist, reviewed Plaintiff's medical records and opined that she did not have a severe medical impairment and no more than mild mental functional limitations. Tr. 560-573.
On July 13, 2006, Dr. Joseph Gonzalez, a State agency physician, reviewed Plaintiff's medical records and assessed her physical RFC to perform work. He opined that Plaintiff could lift, carry, push, and pull fifty pounds occasionally and twenty-five pounds frequently; sit for about six hours in an eight-hour workday; walk and stand about six hours in an eight-hour workday; frequently perform all postural activities, except she could occasionally balance; and she had no visual communicative, manipulative, or environmental limitations. Tr. 512-519. Dr. Judith Von, a State agency psychologist, reviewed Plaintiff's medical records on July 12, 2006. Dr. Von concluded that Plaintiff did not have a severe mental impairment. Tr. 520-533.
On January 29, 2008, Dr. Niemer completed an Attending Physician's Statement in which he opined that Plaintiff could lift up to five pounds occasionally and one pound frequently, and sit three hours and stand/walk one hour per eight-hour workday. He thought she needed to avoid dust, fumes, gases, and extremes of temperature and humidity. Tr. 470. Dr. Niemer opined that Plaintiff could never climb, balance, bend, or stoop; rarely push, pull, use fine manipulation, reach, use gross manipulation, and work around hazardous machinery; and occasionally operate motor vehicles. He also thought that Plaintiff would be absent from work more than four days per month. Tr. 470.
In July 2003, Plaintiff told an Agency disability examiner that she had taken antidepressant medication for several years, but never had seen a mental health specialist. She reported she was able to drive, did household chores, and read a lot. She said her hepatitis was not giving her any problems. Tr. 83.
At the first hearing before the ALJ (June 2004), Plaintiff stated that in September 2001 she was supposed to start a new job where she could work from home, but was later told that she had to be in the office for eight hours per day, which she did not feel she could work. She testified that since September 2001, she had not performed any work, but had applied for jobs. Tr. 227-228, 245. Plaintiff testified that she experienced radiating pain, fatigue, vomiting, diarrhea, hepatitis C, depression, seizures, daily dizzy spells, anxiety, hypertension, blurred vision, memory and concentration problems, and poor sleep. Tr. 229, 231, 233, 234, 236-237, 240, 247. She indicated that she had diarrhea every day and vomited once per month. Tr. 241. Plaintiff complained that fibromyalgia affected her entire body and that she sometimes had difficulty grasping objects. Tr. 243. Plaintiff thought that she could sit for fifteen minutes at a time and reported she limped when she walked. She stated that she did not read much because she had a hard time with comprehension.
Plaintiff testified that she attended church once a month. Tr. 238. She said she no longer drove a car due to anxiety and medication side effects. Tr. 230-231. Plaintiff testified that her grandson lived with her from his birth in February 2001 until July 2002, and she cared for her teenage son (who had flu-like symptoms from hepatitis C), until July 2003. Tr. 243. Plaintiff said that friends visited her approximately once a week and she had not had a significant other since September 2001. Tr. 244-245.
At the second hearing before the ALJ (February 2008), Plaintiff stated she was fifty-one years old and married. Tr. 819. She had custody of and cared for her grandchildren, ages eighteen months and three and one-half years. Tr. 820. Plaintiff said she had some help caring for the grandchildren and cleaning her house. Tr. 824. She said she worked part-time from March 2006 to July 2007, answering phones for a company and earning approximately five hundred dollars per month. Tr. 821-822. She said she stopped working because her employer wanted her to expand her work duties. Tr. 822. Plaintiff reported that she was having memory problems that hindered her ability to do bookkeeping, but it did not affect her ability to answer phones. Tr. 823.
Plaintiff said she had one to two good days a week (implying that the other five to six were bad days). Tr. 824. She estimated she could sit for forty-five minutes to one hour at one time and stand fifteen minutes at one time on a good day. Tr. 826. She was able to walk more than one block, could walk about ten minutes at one time, and could lift five pounds. Plaintiff said she could not bend at the waist and stoop, but could climb a stepladder and a flight of stairs (if she held the rail). Tr. 827. She said she could do some housework on her good days. Tr. 831. Plaintiff spent most of her time watching television, belonged to a church, did not attend church services very often, and took a two-hour nap every day. Tr. 831-832.
Plaintiff alleges that: (1) the ALJ erred by failing to follow the proper legal standards for evaluating the diagnosis and disabling effects of her fibromyalgia syndrome; (2) the ALJ erred by disregarding the opinion of her treating rheumatologist that her RFC would preclude her from engaging in substantial gainful employment; and (3) the ALJ's decision is not supported by competent substantial evidence. She also appears to allege that the ALJ's credibility finding is not supported by substantial evidence. The Commissioner contends that substantial evidence
Plaintiff appears to allege that the ALJ failed to properly evaluate her fibromyalgia by discounting her credibility based on a lack of objective medical findings. She argues that the ALJ erred in discounting her credibility based on her daily activities because such activities are not indicative of an ability to perform full-time work. Plaintiff also argues that the ALJ erred by failing to take into account the side-effects of her medications. The Commissioner argues that the ALJ properly evaluated Plaintiff's fibromyalgia and did not rely exclusively on the normal objective findings. Specifically, the Commissioner argues that the ALJ properly discounted Plaintiff's claims that her fibromyalgia made her completely disabled from working based on her extensive daily activities and inconsistencies in the record. The Commissioner argues that the ALJ did not err as to Plaintiff's medication side effects as the record indicates that they were not so limiting as to preclude all substantial gainful activity.
The ALJ's determination that Plaintiff's impairments limited her ability to perform more than a reduced range of light work is supported by substantial evidence and correct under controlling law. Fibromyalgia was specifically found by the ALJ to be a severe impairment that limited Plaintiff's RFC.
In addition, the ALJ discounted Plaintiff's subjective symptoms based on his findings concerning her credibility. In assessing credibility and complaints of pain, the ALJ must: (1) determine whether there is objective evidence of an impairment which could reasonably be expected to produce the pain alleged by a plaintiff and, if such evidence exists, (2) consider a plaintiff's subjective complaints of pain, along with all of the evidence in the record.
Here, the ALJ properly considered Plaintiff's credibility by using the two-part test outlined above and considering the medical and non-medical record. At step one, the ALJ specifically found that Plaintiff had medically determinable impairments that could have reasonably been expected to produce some of the alleged symptoms. Tr. 278. At step two, the ALJ properly considered the medical and non-medical evidence in determining that Plaintiff's subjective allegations of limitations were not credible to the extent they were inconsistent with the RFC found by the ALJ.
The ALJ's decision is also supported by Plaintiff's activities of daily living.
The ALJ also considered Plaintiff's alleged side effects from her medications, but discounted them because the medical records did not collaborate her allegations. Tr. 279. He further discounted them based on inconsistencies in Plaintiff's credibility compared to the record.
Plaintiff argues that the ALJ failed to follow the proper legal standard for evaluating her treating physician's opinion and that the reasons the ALJ gave for discounting these opinions are without foundation. She argues that the ALJ's reasoning for discounting Dr. Niemer's opinions "is apparently based on a total misunderstanding or mischaracterization of the nature of fibromyalgia." She argues that the ALJ erred in discounting these opinions based on the absence of objective testing and a lack of objective evidence. Plaintiff argues that the ALJ disregarded Dr. Niemer's opinion in favor of the non-examining physicians and non-specialists. She claims that Dr. Niemer's opinions of Plaintiff's RFC were consistent with the record as a whole including reports of other treating medical sources and Plaintiff's testimony. The Commissioner contends that the ALJ reasonably concluded that Dr. Niemer's opinion as to Plaintiff's functional abilities was entitled to little weight. Specifically, the Commissioner argues that the ALJ properly discounted Dr. Niemer's opinions as they were inconsistent with his treatment notes, his opinions were conclusory, and other evidence in the record does not support Dr. Niemer's assessments. The Commissioner contends that Dr. Niemer based his opinion primarily upon Plaintiff's subjective complaints, Dr. Niemer's opinion was inconsistent with Plaintiff's activities, some of Dr. Niemer's opinions are more vocational opinions than medical opinions and were entitled to little weight, it was reasonable to infer that Plaintiff's presentation of forms to Dr. Niemer asking him to assist in her application for benefits influenced his opinion, and Plaintiff fails to cite evidence in the record that is consistent with Dr. Niemer's opinion that Plaintiff's symptoms prevented her from working.
The medical opinion of a treating physician is entitled to controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record.
Under § 404.1527, if the ALJ determines that a treating physician's opinion is not entitled to controlling weight, he must consider the following factors to determine the weight to be afforded the physician's opinion: (1) the length of the treatment relationship and the frequency of examinations; (2) the nature and extent of the treatment relationship; (3) the evidence with which the physician supports his opinion; (4) the consistency of the opinion; and (5) whether the physician is a specialist in the area in which he is rendering an opinion. 20 C.F.R. § 404.1527. Social Security Ruling 96-2p provides that an ALJ must give specific reasons for the weight given to a treating physician's medical opinion. SSR 96-2p.
The ALJ's decision to discount Dr. Niemer's opinions is supported by substantial evidence and correct under controlling law. The ALJ gave specific, acceptable reasons for discounting Dr. Niemer's opinions.
The ALJ, however, did not discount Dr. Niemer's opinions solely on the above reasons. He further found that Dr. Niemer did not give detailed discussion or rationale as to why he found Plaintiff so limited. Tr. 281. The ALJ also noted that Dr. Niemer's assessments were based primarily on Plaintiff's subjective symptoms, which were properly found not to be fully credible (as discussed above). Additionally, the ALJ found that Dr. Niemer's treatment notes are essentially illegible and do not provide significant support for the conclusions reached in his assessments. Plaintiff appears to argue that Dr. Niemer's treatment notes often noted that Plaintiff had more than the required number of findings of trigger points to support that Plaintiff had fibromyalgia. The ALJ, however, did find that Plaintiff had the severe impairment of fibromyalgia and limited her ability to stand, walk, lift/carry, climb, crawl, be exposed to temperature extremes, (and noted she needed a sit/stand option) as a result of this severe impairment. Tr. 281.
The ALJ also found that Dr. Niemer's opinion was not consistent with the record as a whole. Instead, he gave significant weight to the opinions of the State agency consultants as their opinion were generally consistent with the other evidence of record.
Despite Plaintiff's claims, she fails to show that the Commissioner's decision was not based on substantial evidence. This Court may not reverse a decision simply because a plaintiff has produced some evidence which might contradict the Commissioner's decision or because, if the decision was considered
This Court is charged with reviewing the case only to determine whether the findings of the Commissioner were based on substantial evidence,
RECOMMENDED that the Commissioner's decision be