BARBARA B. CRABB, District Judge.
Plaintiff Tonda Susan Bohringer has moved for judicial review of the final decision of defendant Carolyn W. Colvin, Acting Commissioner of Social Security, denying plaintiff's application for disability insurance benefits and supplemental social security. Plaintiff contends that the administrative law judge who heard her appeal erred in finding that she was not disabled but could perform jobs that exist in significant numbers in the national economy, specifically by not giving controlling weight to the opinions of plaintiff's treating physician, who found her unable to work eight hours a day.
I conclude that the administrative law judge was not bound to adopt the opinion of plaintiff's treating physician because that opinion was not supported by the medical evidence and was inconsistent with other evidence in the record. I conclude also that the record evidence supports his finding that plaintiff has the residual functional capacity to work at a sedentary exertional level and that jobs exist in the national economy that are within her ability to perform. Accordingly, I will enter judgment in favor of defendant.
Plaintiff was born in 1972 and was 36 when she filed her application for benefits, claiming that she had been disabled since April 1, 2007. She had a ninth grade education and had been in special education for all classes. Her past work included working as a charter driver, a bus driver, a general laborer and a short-order cook. Since 2007, she had worked part-time as a waitress at a restaurant owned by a relative. Administrative Record at 46.
Plaintiff filed her applications for disability insurance benefits and supplemental security income on May 2, 2008. The applications were denied initially on August 23, 2008 and again on December 8, 2010, after plaintiff sought reconsideration. Plaintiff requested a hearing and one was held on May 12, 2011, before administrative law judge Sylke Merchan. Plaintiff was represented by counsel and testified on her own behalf. The only other witness was the vocational expert, Stacia Star.
The administrative law judge found that plaintiff was not eligible for benefits because she could still perform substantial gainful work. This decision was upheld by defendant on August 7, 2012.
According to the record, plaintiff saw her treating physician, Dr. Stepanski, at least 17 times between August 2005 and July 2010. As relevant, the visits included the following.
March 12, 2007: Plaintiff came in with a complaint of chronic back pain. AR 302. Plaintiff said she had had epidural injections without improvement and that she was getting numbness down her left leg. Stepanski found her morbidly obese, noting that she had gained 30 pounds over the past year. Plaintiff also reported sinus congestion and depression that kept her from sleeping.
May 2007: plaintiff came in to discuss disability and a rash and pain in her lower back and extremities, for which she was seeing a rheumatologist AR 300. (The record does not disclose the name of the rheumatologist or include any records of visits to any rheumatologist before May 2007.) Plaintiff said she had gained weight because she was unable to exercise and that she was fatigued.
June 27, 2007: plaintiff came in with multiple problems, including ankle swelling, lupus and increased GERD. AR 335. Stepanski assessed plaintiff as having positional dyspnea (shortness of breath,
April 15, 2008: plaintiff came in for blood work relating to her lupus. AR 330. She complained of being overly tired. Stepanski could find no apparent reason for the fatigue and ordered a full set of lab work. She advised plaintiff to follow up with her rheumatologist.
October 21, 2008: plaintiff came in with complaints of cysts in her ovaries, right lower quadrant pain and pain in her right wrist that had started when she lifted a 50-pound bag of dog food a few days earlier. AR 439. (The cysts were later removed surgically. AR 418-19.) Stepanski found plaintiff's hands equal in grip and strength.
January 14, 2009: plaintiff came in with complaints of neck and back pain and constant headaches. AR 438. Stepanski noted paraspinal muscle spasm in plaintiff's lower lumbosacral area. She recommended that plaintiff increase her fluids, increase her range of motion, have physical therapy and a deep tissue massage.
August 18, 2009: plaintiff came in with a complaint of right arm pain that had been increasing in intensity. AR 431. Stepanski noted "paraspinal muscle spasms on the right trapezius but no gross deformity of upper extremities especially on the right where she is complaining of the pain."
July 22, 2010: plaintiff came in with complaints of sharp pains in her back and difficulty with her legs. AR 426. Stepanski planned to follow up with a rheumatologist.
In a May 2011 Lupus Treating Source Statement sent to the state social security office, AR 527-34, Dr. Stepanski noted that plaintiff had the following clinical findings for systemic lupus erythematosus: molar rash, photosensitivity, arthritis, positive test for ANA (antinuclear antibody,
Stepanski believed that plaintiff could sit for only 15 minutes at a time before she would need to stand and stretch for 15 minutes, AR 529; she could sit for less than six hours each day; she could stand for 30 minutes at a time before she would have to sit in a working position,
Dr. Stepanski assessed plaintiff's impairments as follows:
AR 532. According to Stepanski, plaintiff was likely to be absent from work because of her impairments or treatment for her impairments more than four times a month. AR 534.
Plaintiff saw Dr. Patel in July, August and September 2006. (Dr. Patel is a doctor at St. Joseph's Community Health Services, Inc., working in the same clinic as Dr. Stepanski.) At a visit on July 18, 2006, plaintiff came in for a check up for her lower back pain and worker's compensation claim. AR 306. Patel found that plaintiff's radiculopathy was improving significantly.
In August, plaintiff came in, still complaining of back pain and saying that her improvement had plateaued. AR 305. Plaintiff requested a refill of hydroxychloroquin, which she was taking for lupus. Patel recommended epidural injections, saying that the results of those would show whether plaintiff could return to work in mid-September, when her short-term disability ended.
Plaintiff saw Dr. Patel on April 14, 2009 for pain on the right side of her abdomen. AR 433. Patel found plaintiff "quite tender to palpation everywhere, tender in almost all the muscles that I touched." Her shoulders had normal range of motion.
Plaintiff saw Dr. Wilke at St. Joseph's Community Health Services on July 7, 2007, a week after seeing Dr. Patel in the Emergency Department. AR 308. (The record does not contain any report of the emergency room visit.) She told Wilke that her back pain continued, that her medications had not helped and that she had been in physical therapy. Wilke found plaintiff's reaction to palpation over her lumbosacral spine "almost more than would be expected."
In response to a request from the state disability determination bureau, Dr. Whitney examined plaintiff for rheumatoid arthritis and chronic low back pain, from which she said she had been suffering for about a year. He filed a report dated September 27, 2007. AR 323. Whitney observed that plaintiff had chronic lupus in her hands. He wrote that plaintiff dated the onset of her back pain to June 2006, when she had picked up an approximately ten pound pallet off the ground at work. She said that although she had had some physical therapy, she had done no stretching or strengthening exercises for more than five months and had done "nothing to assist in the musculoskeletal improvement in her back pain or her hand pain."
On examination, Whitney observed extreme tenderness to palpation over plaintiff's lumbar region and left paraspinal muscle region, "significantly more than would be expected given her history and complaints of pain." AR 324. He found her extreme pain "very suspicious for malingering or secondary gain type response."
Plaintiff saw Dr. Danning at the Gundersen Lutheran Medical Center on May 30, 2008, for a rheumatology consultation, on referral from Dr. Stepanski. AR 354. At the time, plaintiff was complaining of worsening fatigue and increasing pain, with flare ups of increasing pain, particularly in her lower back. She reported trouble sleeping and fatigue upon awakening and alternating diarrhea and constipation. She was trying to lose weight.
Danning noted that plaintiff had an extremely photosensitive rash and some paresthesias (burning or prickling sensation,
Danning's impression was that plaintiff had a history of autoimmune disorder because her symptoms were suggestive of a mild form of lupus.
Plaintiff saw Danning again on September 29, 2010, on referral by Dr. Stepanski for a review of her increased diffuse musculoskeletal pain and a possible flareup of her lupus. AR 458. Danning noted that plaintiff had never had full-blown lupus, despite her photosensitive rash, oral ulcers and arthralgias.
Plaintiff said she did not sleep well and that she tried to walk half a mile two times a week and stayed busy around her home but did not participate in a lot of other activities. AR 459. In addition, she said her rash was worse and she continued to have constant prickling in her arms, hands and legs.
Plaintiff showed no sign of depressive symptoms or flat affect. AR 460. On examination, Danning found plaintiff's range of motion to be "quite good" with full mobility in her shoulders, elbows, wrists, hands, knees, ankles and feet.
In Danning's opinion, fibromyalgia was a bigger issue than lupus in plaintiff's diffuse musculoskeletal pain and main symptomology. She noted the widespread pain, localized to the muscles without any clear-cut evidence of inflammation, muscle weakness or focal neurological deficits so far. Plaintiff had the classic tenderness, widespread chronic pain and poor sleep quality.
Danning recommended a regular exercise regimen for plaintiff that included stretching exercises for her neck, shoulders, lower back and hamstrings, walking short distances, pool exercises and quadriceps strength training for her knees, an increase in the Gabapentin she was taking and Tramadol for a pain reliever, as needed, along with a muscle relaxant taken two hours before bedtime. AR 461.
In a July 29, 2008 report, Dr. Syd Foster noted plaintiff's primary diagnosis as being lupus, with her secondary diagnosis lumbar spine problems, along with Sjogren's syndrome and joint swelling. AR 357. In Foster's opinion, plaintiff could lift a maximum of 20 pounds occasionally, 10 pounds frequently, sit, stand or walk for about six hours in a normal workday, push or pull without any limitations other than those imposed on sitting and lifting. AR 358. He found no basis for imposing any postural, manipulative, visual, communicative or environmental limitations. AR 359-61.
Foster explained why his conclusions differed from those of plaintiff's treating physician. AR 364. (1) Dr. Stepanski had found on May 8, 2007 that plaintiff had lupus, undifferentiated; carpal tunnel; obesity; chronic low back pain with annular tear and disc bulging, whereas Dr. Whitney had found reason to question the reliability of plaintiff's reports of pain. Whitney found plaintiff's extreme tenderness to simple touching to be suggestive of malingering, particularly when the rest of her examination was relatively normal and she displayed good flexion, strength, reflexes and sensation. Her gait was stable and she could walk on her toes, squat and bend to nearly touch her toes.
(2) In visits to her physician in 2008, plaintiff had blood work and followup on lupus but was neurologically intact with no motor or sensory deficits; she was seen for hand pain, assessed as consistent with carpal tunnel; and she had discontinued her lupus medication.
(3) Although the report of plaintiff's May 8, 2007 visit to Dr. Stepanski mentioned depression, the doctor did not include it as a diagnosis, plaintiff was not alleging it as a reason she should receive benefits and she had not mentioned it during the most recent visit included in her file as of Foster's review.
Foster concluded that plaintiff had the residual functional capacity to perform light work, even with her lumbar disc bulge, complaints of chronic pain and fatigue and a diagnosis of lupus.
Finally, Foster found plaintiff's reports of back pain only partially credible and her symptoms out of proportion to the objective findings.
Agency psychologist Eric Edelman prepared a psychiatric review technique form on July 30, 2008, in which he found that plaintiff had an affective disorder that was not severe in the form of a depressive syndrome characterized only by decreased energy. AR 365, 368. He concluded that plaintiff would have mild difficulties in maintaining concentration, persistence or pace, but no other limitations. AR 375. Edelman gave Stepanski's statement about plaintiff's depression little weight because it was not supported by any objective evidence, not consistent with the rest of the file evidence and not something plaintiff was alleging. AR 377. Moreover, plaintiff had not reported any depressive symptoms.
Agency physician Dr. Korshidi evaluated plaintiff's physical residual functional capacity assessment in a report dated December 8, 2010. AR 401. She listed primary diagnoses of lupus, Reynaud's phenomenon and fibromyalgia; secondary diagnoses of L4-L5 disc bulging with low back pain; and other alleged impairments of obesity, kidney issues and asthma.
Korshidi found plaintiff's statements credible to the extent they supported a sedentary residual functional capacity. AR 406. Apparently she reviewed the May 2007 statement from Dr. Stepanski in support of plaintiff's disability claim that is not in the record, but she gave it little weight. Stepanski had found plaintiff's functioning severely limited; in Korshidi's opinion, this finding was inconsistent with the examination results, the subsequent medical evidence of record and the objective evidence. AR 407.
4.
Psychologist Roger Rattan reviewed plaintiff's updated file evidence and concluded in a report signed on December 8, 2010 that it contained no allegations or evidence of mental health impairment. AR 443.
Plaintiff appeared with counsel at a May 12, 2011 hearing held before administrative law judge Sylke Merchan. AR 39. A vocational expert was also present. AR 38. Plaintiff testified that she lived in an apartment in Soldiers Grove, a small village in southwestern Wisconsin. She was not married and lived with her daughter, who was then 10. AR 42. Her parents lived nearby and often drove her to the doctor's office or grocery store, although she had a valid license. AR 43. They also helped her pay for medication when she needed it. AR 51.
Plaintiff testified that she had gone to school up to the ninth grade, that she weighed about 250 pounds and that she worked as a waitress at a bar in Soldiers Grove, Wisconsin, and had been doing so since 2009. AR 43. She said that she worked about eight to 12 hours a week, that her job required constant lifting of plates and other objects, AR 44, and that she made about $82 a week. AR 45. She testified that the bar was owned by a relative and that she could take breaks as needed, AR 46, and another waitress would fill in for her, AR 46, that she missed work about four times a month and that she had to leave early about four to five times a month. AR 47. She said that her ten year old daughter did the dishes at home, as well as the laundry, and helped with the vacuuming and dusting. AR 47. Her daughter got herself ready for school and made her mother coffee. AR 47-48. Plaintiff lived in subsidized housing and received food stamps. AR 48. Her parents checked on her each day and helped care for her daughter. AR 52.
Testifying about her medical condition, plaintiff said that she developed a rash and swelled up when she went out in the sun, AR 49, that she had to put her feet up every day, often before going to work and always after work.
Plaintiff said that her lupus caused her fatigue, joint swelling and fevers and that she had no pain-free days. AR 53. She said that her fibromyalgia caused her to have tight muscles and that she had found no medications that relieved her pain or relaxed her muscles. AR 55. Her doctor was continuing to try new medications and had recently started her on Lexapro, an anti-depressant. AR 56. In addition, her doctor had sent her to specialists, who had tried her on new medications that did not work. AR 57.
Plaintiff also talked about her muscle weakness and inability to sleep, AR 60, her difficulties with the activities of daily living, such as putting on pants or getting into the shower. AR 61. She also described her incontinence, AR 63-64, and said she was unsteady on her feet and needed a cane, although she had not gotten one. AR 63-65.
Vocational expert Stacia Star testified that she had reviewed plaintiff's file and was familiar with the kind of work involved in plaintiff's medium and light exertional jobs with skill levels ranging from semi-skilled to unskilled. AR 69-70. She testified that a person with plaintiff's age, education and work experience able to work at the sedentary exertional level and perform postural activities only occasionally would not be able to work at plaintiff's past relevant work but could perform a number of other jobs, such as surveillance monitor, table worker (an assembly type job that entails putting items into a box and putting it back on a conveyor belt) or assembler, all of which existed in significant levels in the state of Wisconsin. AR 70-71. She said that the jobs could be performed with a sit/stand option and that she knew this from her experience in the field doing job placement for persons who needed that option. AR 71. However, if the person had to be off work at least three days a month because of her impairments or side effects from medication, there would be no employment options. AR 71-72.
The administrative law judge followed the five-step evaluation process in determining whether plaintiff was disabled. At the first step, he found that plaintiff had not engaged in substantial gainful activity since 2007 and that she had the severe impairments of lupus, obesity, Raynaud's phenomenon, degenerative disc disease, fibromyalgia and congenital missing kidney. AR 22. At the second step, the administrative law judge found that plaintiff's symptoms of fibromyalgia, lupus and obesity constituted severe impairments because they resulted in significant functional limitations. AR 25. He did not find plaintiff's complaints of carpal tunnel syndrome problems to be severe impairments, in light of what he said was her failure to mention the problem more than once in the medical records and the findings in the record that she had no sign of muscle atrophy in that area and her grip strength was intact in both wrists.
At the third step, the administrative law judge found that plaintiff's severe impairments did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1, whether considered separately or in combination.
The administrative law judge found that plaintiff's lupus was mild in nature and manifested primarily in a positive ANA and photosensitivity. AR 23. In reaching this conclusion, he relied on the two reports from Dr. Danning and one from the consulting examiner, Dr. Whitney. As he observed, Danning's May 2008 report of her rheumatological examination of plaintiff revealed no sign of any lupus overactivity with the exception of a sunburn rash caused by photosensitive reaction. Neither the physical examination nor the laboratory tests suggested the presence of any acute disease activity or any sign of active synovitis ("inflammation of a synovial membrane, especially that of a joint," or arthritis,
Dr. Whitney reported in September 2007 that plaintiff had good lumbar flexion, normal reflexes, a stable gait, full leg strength and good strength and grasp in her hands; that she had more tenderness to touching than would be expected; and that, although plaintiff had complained of chronic hand pain secondary to lupus, Whitney found no problems in her hands and nothing indicative of lupus. AR 23-24.
The administrative law judge explained why he found Dr. Stepanski's severe restrictions on plaintiff's functional capacity were not entitled to controlling weight, despite Stepanski's role as plaintiff's treating physician. The restrictions were not reflected in her treatment notes or in the remaining physical evidence; her opinion was internally inconsistent when it came to assessing plaintiff's ability to sit and stand; she wrote that plaintiff could not perform sustained "posturals" (presumably lifting and reaching) and no more than occasional "manipulatives" (presumably handling and fingering), but neither her treatment notes nor any other medical evidence in the record supported these limitations or the marked and extreme limitations in symptoms that she had found. AR 27.
At step five, the administrative law found that plaintiff was unable to perform her past relevant work, AR 28, but that she could perform jobs that existed in significant numbers in the national economy.
Plaintiff asked for review of the administrative law judge's June 24, 2011 decision, but her request was denied by the appeals council. The council notified plaintiff of its action in a letter dated August 7, 2012. AR 1-3. Plaintiff filed this action on October 4, 2012.
In her challenge to the administrative law judge's decision, plaintiff focuses almost exclusively upon the administrative law judge's failure to give full credit to the opinions of plaintiff's treating physician, Dr. Stepanski. She argues that it was error for the administrative law judge to find that she had the residual functional capacity to perform full time sedentary work because he could make this finding only by ignoring Dr. Stepanski's 2007 and May 2, 2011 opinions. This, she says, violated the general rule that more weight, even controlling weight, is to be given to the opinions of treating physicians because these doctors have greater familiarity with the applicant's condition and circumstances.
Like most rules, the general rule on which plaintiff relies has exceptions. It applies only if the opinion is "well supported by medical findings and not inconsistent with other substantial evidence in the record."
The parties have spent a good deal of time arguing about the internal inconsistency of Dr. Stepanski's 2011 report, in which she said at one point that plaintiff could sit for no more than six hours at a time and stand for no more than 30 minutes, AR 529, and at another point, that plaintiff could sit for no more than four hours a day, stand for no more than two hours and would need two hours of rest time each day. AR 530. The administrative law judge found that plaintiff could stand for no more than two hours and sit for no more than 6 hours, with a sit/stand option. This was a reasonable conclusion to draw from Dr. Stepanski's statement; if anything, it was more favorable to plaintiff than the record warranted, as she admits in her opening brief. Plt.'s Br., dkt. #13, at 9.
Plaintiff attacks the administrative law judge's decision not to credit Dr. Stepanski's opinion that plaintiff is too disabled to perform even sedentary work, saying that it is not supported by the record. This contention does not stand up to a review of the administrative law judge's decision, which reveals his careful consideration of the record evidence and his reasons for finding that Stepanski's opinion was not supported by her own treatment notes or by the objective medical evidence. An administrative law judge need not blindly accept a treating physician's opinion but may discount it if it is internally inconsistent or contradicted by other substantial medical evidence in the record.
Although plaintiff argues otherwise, I find that the administrative law judge built "an accurate and logical bridge from the evidence to his conclusion."
IT IS ORDERED that plaintiff Tonda Susan Bohringer's appeal from the denial of her applications for disability insurance benefits and supplemental security income disability benefits, dkt. #1, is DENIED. The clerk of court is directed to enter judgment for defendant Carolyn W. Colvin, Acting Commissioner of Social Security, and close this case.
