Opinion
No. 00-0705.
March 14, 2001.
ORDER AND REASONS
Before the Court are cross motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. These motions were submitted on the briefs. Having reviewed the motions, memoranda, exhibits/administrative record, and the applicable law, and for the reasons detailed herein below, this Court GRANTS Commissioner's motion for summary and DENIES the plaintiff's motion for summary judgment.
I. Procedural Background
Plaintiff/claimant, Darrin Allen (Allen), seeks judicial review pursuant to Section 405(g) of the Social Security Act (the Act) of the final decision of the Commissioner of Social Security Administration (SSA), denying his claim for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 423 and Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. § 1382c, finding at step 2 of the sequential evaluation process that the claimant does not have any impairment or combination of impairments which significantly limit his ability to perform basic work-related functions (i.e., claimant does not have a severe impairment within the meaning of Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985)). Accordingly the ALJ determined that the claimant has not been disabled within the meaning of the Act at any time through the date of decision, and is therefore not eligible for disability or supplemental security income benefits under the Act.
See September 11, 1998 Decision of ALJ Daniel Curran denying benefits [Administrative Record (Adm.Rec.), 15-20].
On October 1, 1997, claimant Darrin Allen (Allen) filed an application for disability insurance benefits and supplemental security income alleging inability to work since July 1, 1996, due to back pain, depression and obesity. Following initial and reconsideration denials, the claimant filed a timely request for a hearing, which was conducted before United States Administrative Law Judge (ALJ) Daniel Curran, on August 24, 1998. On September 11, 1998, the administrative law judge issued a decision finding that the claimant, Allen, was not "disabled" within the meaning of the Act. On January 4, 2000, the Appeals Council denied claimant's request for review and adopted the administrative law judge's September 11, 1998 decision as the final decision of the Commissioner of Social Security. On March 3, 2000 Allen filed the instant complaint seeking judicial review of the final decision of the Commissioner denying his application for Social Security benefits. The decision is ripe for judicial review. As previously mentioned, Allen and the Commissioner filed cross-motions for summary judgment arguing that issues are amenable to summary disposition as a matter of law based on the record and the applicable law.
See October 1, 1997 Application for Disability Insurance Benefits [Adm.Rec. 73-75]; and Leads/Protective Filing Worksheets (Adm.Rec. 71-72].
See January 22, 1997 SSA Notice of Disapproved Claim [Adm.Rec. 55-58]; November 14, 1997 SSA Notice of Disapproved Claim [Adm.Rec. 59-62]; SSA Notice of Denial on Reconsideration [Adm.Rec. 65-66].
See Claimant's Request for Hearing by ALJ [Adm.Rec. 67-68].
See Transcript of August 24, 1998 Hearing, at which Claimant, accompanied by counsel, appeared and testified [Adm.Rec. 25-51].
See Notice of Unfavorable Decision and ALJ's September 11, 1998 Decision finding claimant not disabled, and thus ineligible for benefits. [Adm.Rec. 12-20].
See Action of Appeals Council on Request for Review dated January 4, 2000 [Adm.Rec. 7-9].
See Complaint filed March 3, 2000 [Fed.Rec.Doc. No. 1].
See Motion for Summary Judgment [Fed.Rec.Doc. No. 7]; and Defendant's Reply Memorandum of Facts and Law [Fed.Rec.Doc. No. 8]. There has been no request for oral argument and in any event, having reviewed the record in its entirety, the Court believes that such argument would not assist the Court in the disposition of the matter, and thus it is deemed submitted for decision.
II. Statement of Issues on Appeal
Allen's request for judicial review argues that the Commissioner's decision, given the record as whole, is not based upon "substantial evidence" for the following reasons:
1. The ALJ erred in failing to find Claimant's Impairments "Severe" and in failing to find his medical condition met or equaled Listings 1.05(C) and the Obesity Listing notwithstanding the fact that it has been eliminated from the listings since the hearing; and
2. The ALJ erred in basing his determination primarily on his evaluation of Claimant's credibility.
Claimant's Brief in Support of Summary Judgment, at pp. 3, 5, and 8 [Fed.Rec.Doc. No. 7].
Id. at pp. 3 and 7. Counsel for claimant submits that "this is a case of a functionally thirty year old black male, grossly obese, . . ., who is suicidal and homicidal at times, depressed, diagnosed as having poor judgment and poor insight, with. . . disc dessication, pain, muscle spasm, significant limitation of motion in the spine and radicular distribution of significant motor loss, with muscle weakness and sensory and reflex loss, who walks with a cane to support himself." Id., at p. 7.
The Commissioner submits that the issues for this Court on judicial review are: whether substantial evidence supports the Commissioner's/ALJ's decision and whether such decision comports with applicable legal standards. As to the precise issues proposed by Allen the Commissioner submits: (1) the ALJ's determination that claimant's impairments are not severe finds support in substantial evidence of. record during the pertinent time frame; (2) having appropriately determined that the claimant's impairments were not severe at step two of the sequential evaluation process, the ALJ was not required to proceed to step three and determine whether the alleged impairments met or equaled the requirements of any Listed impairment; and (3) the ALJ properly considered that claimant's credibility determining the severity of his alleged impairments and their effects on his ability to work considering that objective medical evidence and claimant's own prior statements contradicted his testimony at the hearing.
The Commissioner further argues that the relevant time period of this case is July 1, 1996 (i.e., the alleged onset date), through the date of the decision (i.e., September 11, 1998 and that mental health records post dating that time frame are irrelevant and should not be considered on review. As to claimant's contention that the Agency had already "conceded" the point that he had a severe impairment in the context of the January 22, 1997 Notice of Disapproved claim, the Commissioner submits that the claimant was specifically informed via the August 10, 1998 Notice of Hearing, that the ALJ would determine "the nature and extent of [his] impairment. . .," inter alia. The Commissioner points out that the claimant did not notify the ALJ in writing before the hearing of any objection to the issues made the subject of the scheduled administrative hearing and that the regulations afforded the claimant the opportunity to do so. See 20 C.F.R. § 404.939 and 416.1439. The Commissioner argues that the claimant therefore waived his right to object later in the administrative process and upon review citing 20 C.F.R. § 404.900 (b), 416.1400(b), and Sims v. Apifel, 120 S.Ct. 2080, 2083 (2000) for the proposition that whereas here the claimant has not exhausted administrative remedies as to an issue, he may not obtain judicial review.
The Court notes that when new and material evidence is submitted to the Appeals Council, 20 C.F.R. § 404.970 (b) requires that "[t] he Appeals Counsel shall evaluate the entire record including the new and material submitted if it relates to the period on or before the date of the administrative law judge's hearing decision. It will then review the case if it finds that the administrative law judge's action, findings, or conclusion is contrary to the weight of the evidence currently in the record." Id.; see also Cunningham v. Apfel, 222 F.3d 496, 500 (8 th Cir. 2000). Accordingly, in these circumstances, where the Appeals Council denied review, finding that the new evidence did not detract from the ALJ's conclusion, the reviewing court should determine whether the record as a whole, including the new evidence, supports the ALJ's determination. The timing of a mental or physical examination is not dispositive of whether evidence is material; medical evidence obtained after an ALJ has issued a decision is material if it relates to the claimant's condition on or before the date of the ALJ's decision. Cunningham, 222 F.3d at 502.
The precise holding of the Supreme Court in Sims v. Apfel, 120 S.Ct. at 2086 was "that a judicially created issue-exhaustion requirement is inappropriate" in the context of social security cases since SSA regulations to nor require issue exhaustion. The Court further explained that the rationale for a judicially imposed issue-exhaustion requirement does not apply in this context, since Social Security proceedings are inquisitorial rather than adversarial, and it is the duty of the ALJ to develop the facts both for and against granting benefit. The Court further noted that the Council's review is similarly broad. Id., at 2084-86 (citing 20 C.F.R. § 404.900 (b) (1999) and § 404.976(a) for the propositions that the SSA "`conduct[s] the administrative review process in an informal, nonadversarial manner'" and that "the Council's review is plenary."). The Sims Court reversed the judgment of the Fifth Circuit which held that a Social Security claimant waives judicial review of an issue if he fails to exhaust that issue by presenting it to the Appeals Council in his request for review. Id., at 2083, 2086.
Lastly, the Commissioner addresses claimant's arguments that the ALJ was required to consider whether his impairments met or equaled the requirements of any Listed impairment, notwithstanding the fact that the ALJ concluded at Step 2 of the sequential evaluation that claimant's impairments were not severe. As to Listing 1.05(c), the Commissioner submits that the evidence indicates that claimant has no sensory or reflex loss and therefore, does not meet the requirements of Listing 1.05 (c). As to obesity Listing 9.09 of the regulations, the Commissioner submits that effective October 25, 1999, Listing 9.09 was deleted from the Listing of Impairments. Because Allen's case was on appeal at the time that the deletion of Listing 9.09 became effective. His adjudication, which was not final until after October 25, 1999, was appropriately made in accordance with the revised Listings. In any event, the Commissioner submits that claimant, a five foot, four inch tall male, weighing 264 pounds at the time of the hearing, did not meet the requirements of the since deleted obesity Listing.
III. ALJ's Findings Relevant to the Issues on Appeal
The Commissioner made the following findings relevant to the issues on appeal.
1. The claimant met the disability insured status requirements of the Act on July 1, 1996, the date claimant stated he became unable to work, and has acquired sufficient quarters of coverage to remain insured only through March 31, 1997. 2. The claimant has not engaged in substantial gainful activity since July 1, 1996. 3. The claimant has lumbar disc disease, depression and alcohol abuse. 4. The claimant's statements concerning his impairments and their impact on his ability to work are not entirely credible in light of the reports of the treating and examining practitioners and the findings made on examination. 5. The claimant does not have any impairment which significantly limits his ability to perform basic workrelated functions; therefore, the claimant does not have a severe impairment (Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985)) 6. The claimant has not been under a disability, as defined in the Social Security Act, at any time through the date his insured status expired, or at any time through the date of this decision. 7. The claimant's alcoholism is not a contributing factor material to the determination of disability.
September 11, 1998 Findings of ALJ Curran [Adm.Rec. 19-20].
IV. Applicable Standards
A. Judicial Review
The function of this Court on judicial review is limited to
determining whether there is "substantial evidence" in the record, as a whole, to support the final decision of the Commissioner as trier of fact, and whether the Commissioner applied the appropriate legal standards in evaluating the evidence. See 42 U.S.C. § 405 (g); Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000); Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995). If the Commissioner's findings are supported by substantial evidence, they must be affirmed. Newton, 209 F.3d at 452; Martimez, 64 F.3d at 173.
This premise guides the Court's determination of the specific issues raised by the plaintiff in this case.
"Substantial evidence is that which is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. It is more than a scintilla and less than a preponderance." Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995) (internal quotations omitted)
A district court may not try the issues de novo, reweigh the evidence, or substitute its own judgment for that of the Commissioner, even if the evidence weighs against the Commissioner's decision. See Brown, 192 F.3d at 496; Ripley, 67 F.3d at 555; Spellman, 1 F.3d at 360; and Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990)
The Commissioner is entitled to make any finding that is supported by substantial evidence, regardless of whether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992).
A reviewing court must, however, scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence exists to support it. Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992); Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990); Johnson v. Bowen, 864 F.2d 340, 343.44 (5th Cir. 1988). Any of the findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Ripley, 67 F.3d at 554.
The Court "weigh[s] four elements of proof when determining whether there is substantial evidence of disability: (1) objective medical facts; (2) diagnosis and opinions of treating or examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) his age, education, and work history." Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995). "The Commissioner, rather than the courts, must resolve the conflicts in the evidence." Id.
B. Standard for Entitlement to Social Security
The claimant has the burden of proving he has a medically determinable physical or mental impairment lasting at least twelve months that prevents him from engaging in substantial gainful activity. 42 U.S.C. § 423 (d)(1)(A), 1382c(a)(3)(A). Substantial gainful activity is defined as work activity involving significant physical or mental abilities for pay or profit. 20 C.F.R. § 404.1572 (a) and(b)
The Commissioner has promulgated regulations that provide procedures for evaluating a claim and determining disability. 20 C.F.R. § 404.1501 to 404.1599 Appendices, §§ 416.901 to 416.998 (1995). The regulations include a five-step evaluation process for determining whether an impairment prevents a person from engaging in any substantial gainful activity. Id. §§ 404.1520, 416.920; Greenspan v. Shalala, 38F.3d 232, 236 (5th Cir. 1994); Moore v. Sullivan, 895 F.2d 1065, 1068 (5th Cir. 1990) The five-step inquiry terminates if the Commissioner finds at any step that the claimant is or is not disabled. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995)
The five-step analysis requires consideration of the following:
First, if the claimant is currently engaged in substantial gainful employment, he or she is found not disabled. 20 C.F.R. § 404.1520 (b), 416.920(b)
Second, if it is determined that, although the claimant is not engaged in substantial employment, he or she has no severe mental or physical impairment which would limit the ability to perform basic work-related functions, the claimant is found not disabled. Id. §§ 404.1520(c), 416.920(c).
Third, if an individual's impairment has lasted or can be expected to last for a continuous period of twelve months and is either included in a list of serious impairments in the regulations or is medically equivalent to a listed impairment, he or she is considered disabled per se (i.e., without consideration of vocational evidence). Id., 404.1520(d), 416.920 (d). Fourth, if a determination of disabled or not disabled cannot be made by these steps and the claimant has a severe impairment, the claimant's residual functional capacity and its effect on the claimant's past relevant work are evaluated. If the impairment does not prohibit the claimant from returning to his or her former employment, the claimant is not disabled. Id. §§ 404.1520(e), 416.920(e).
Fifth, if it is determined that the claimant cannot return to his or her former employment, then the claimant's age, education and work experience are considered to see whether he or she can meet the demands of a significant number of jobs in the national economy. If the claimant cannot meet the demands, he or she will be found disabled. Id. §§ 404.1520(f)(1), 416.920(f)(1). To assist the Commissioner at this stage, the regulations provide certain tables that reflect major functional and vocational patterns. When the findings made with respect to claimant's vocational factors and residual functional capacity coincide, the rules direct a determination of disabled or not disabled. Id. § 404, Subpt. P, App. 2, §§ 200.00-204.00, 416.969 (1994) ("Medical Vocational Guidelines").
The claimant has the burden of proof under the first four parts of the inquiry. Id. If the claimant successfully carries this burden, the burden shifts to the Commissioner to show that other substantial gainful employment is available in the national economy, which the claimant is capable of performing. Greenspan, 38 F.3d at 236; Kraemer v. Sullivan, 885 F.2d 206, 208 (5th Cir. 1989) When the Commissioner shows that the claimant is capable of engaging in alternative employment, "the ultimate burden of persuasion shifts back to the claimant. Id.; accord Selders, 914 F.2d at 618.
V. Analysis
A. Medical Evidence.
This Court has reviewed the medical records in evidence and finds the ALJ's summary of the evidence [Adm.Rec. 17-19] both thorough and accurate. The Court's summary of same follows with citations to the medical evidence submitted as part of the Administrative Record, including the claimant's 1999 Lafourche Mental Health Center (LMHC) Records, which records were considered by the Appeals Council.
The records of the Leonard J. Chabert Medical Center indicate that claimant Allen, a 28 year old male, presented himself to the emergency room on August 5, 1996 with complaints of low back pain. It was then noted that Allen had an appointment set up for August 13, 1996. It was noted his back was mildly tender, straight leg raising was negative and his motor/sensory was intact. [Adm.Rec. 182]. The Chabert Clinic medical records reveal that Allen, a 28 year old male, alleged having low back pain for approximately six years. [Adm.Rec. 172 Exh. 1F11]. The two X-rays which were performed in the emergency room were both negative. Id. Progress notes of Chabert Clinic note that claimant's back pain was not relieved with naprosyn and soma which had been prescribed in the emergency room. [Adm.Rec. 178 Exh. 1F17].
Chabert Clinic medical records further reveal that claimant's physical evaluation on September 24, 1996 indicated that his "lower back [was] tender to deep palpation." [Adm.Rec. 177 Exh. 1F16] The results of his neurological testing had not changed, to wit: straight leg raising negative; no atrophy; reflexes and sensory intact. Id. The impression was muscle strain. Id. Diagnostic studies of the back were scheduled for September 26, 1996. The plan of treatment included prescriptions of Ibuprofen and Flexiril and claimant was encouraged to lose weight. Id. The lumbar spine series performed on September 26, 1996 revealed a normal lumbosacral spine. [Adm.Rec. 174 Exh. 1F13]. The CT-scan revealed possible small herniation or bulge at L4-5. [Adm.Rec. 173 Exh. 1F12]. Dr. Vo's progress note dated October 8, 1996, noted that CT scan of lumbar spine indicated " questionable early herniation of L4-5" and "questionable spur impinging on caudal sac." [Adm.Rec. 171 Exh. 1F10] (emphasis supplied)
Chabert Medical records further indicate that as of April 8, 1997 the diagnosis of claimant's condition was "early L4-5 herniation," that the plan for his treatment included Darvocet, and that the patient could resume work. [Adm.Rec. 196 Exh. 3F6]. As of September 27, 1997, the diagnosis of "early L4-5 herniation" remained the same. [Adm.Rec. 193 Exh. 3F3]
Claimant was referred by Chabert to the Medical Center of Louisiana for treatment and its records dated January 27, 1997 and February 24, 1997 revealed that the CT films provided by claimant from Chabert Medical Clinic showed "no herniation." [Admin. Rec. 197 and 199 Exhs. 3F7 and 3F9 (emphasis added)]. The claimant's Medical Center of New Orleans treatment records dated February 24, 1997 further reflect the following as to the Lumbar Spine Series retaken that date: "Five lumbar vertebra are normally aligned posteriorly; No evidence of spondylosis or spondylolisthesis; Nor is there any evidence of disc space narrowing." [Adm.Rec. 198 Exh. 3F8 (emphasis added)]. The impression was "no abnormalities of the lumbar spine." Id. (emphasis added).
Likewise, a consultative examination by Dr. Christopher E. Cenac on November 4, 1997, similarly revealed no evidence of nerve root impingement or cord compression. [Adm.Rec. 200 Exh. 4F]. The results of claimant's physical examination conducted by Dr. Cenac were similar to results reported inthe treatment records from Chabert and Medical Center of New Orleans. Dr. Cenac reported claimant's straight leg raising and reflex examination were normal. Dr. Cenac further noted no sensory deficits and no atrophy. From an orthopedic standpoint, Dr. Cenac found no evidence of dysfunction and opined that the claimant was fully employable at any level of physical activity. Id.
Dr. Cenac did specifically note the following with respect with respect to his examination of the claimant:
Significant emotional overlay and symptom magnification is noted during the examination. [Adm.Rec. 200].
Dr. Victor P. Chisesi examined Allen on December 4, 1996 and reported that claimant came into his office with a noticeable limp, demonstrated no motion in his back and had a questionable and moderate degree of muscle spasm. Dr. Chisesi reported that the Xray examinations of the claimant's lumbar spine performed in his office "were unremarkable." [Adm.Rec. 189 Exh. 2F2 (emphasis added)]. Dr. Chisesi's assessment of claimant's condition was qualified by observation of a malingering element, which was specifically noted twice in his report.
First, Dr. Chisesi noted as to the claimant's physical examination that "[t]he malingerer test was positive bilaterally." [Adm.Rec. 189 Exh. 2F2]. Dr. Chisesi concluded his report as follows:
The man has no motion in his back and has muscle spasm. However, there is also a malingering element to his case.Id. (emphasis supplied).
The claimant was referred for a psychological evaluation with psychologist, Dr. Sandra Durdin. She observed and noted that claimant was "completely ambulatory with an unremarkable gait and posture." [Adm.Rec. 206 Exh. 5F2 (emphasis added)]. She further noted that claimant was fully intelligible at all times, his mood, affect, activity level, attention and concentration were normal. She further noted that he was alert and without evidence of psychosis. Dr. Durdin reported that the claimant takes care of two small children while his wife works at Rouse's, he is a licensed driver, drives, visits friends, and enjoys watching boxing and wrestling. [Adm.Rec. 207 Exh. SF3]
Dr. Durdin further reported that Allen "did not cooperate with testing," and "grossly exaggerated his mental incompetence on the Wechsler." [Adm.Rec. 208 Exh. SF4 (emphasis added)]. She did not believe that the claimant was mentally retarded, noting the facts that he was a licensed driver, drives; had held several jobs, and that his language development exceeded the level of mental retardation. [Adm.Rec. 208 Exh. SF4]. She diagnosed alcohol and cannabis abuse, depression, estimated borderline to Low Average Intelligence, and post status back injury with complaints of chronic pain and possible self-medication with substances. Id.
In summary, claimant's numerous physical examinations revealed no objective functional abnormalities. According to all of the evidence the claimant was neurologically intact, straight leg raising was negative, had no sensory or reflex loss, and had no muscle atrophy. The claimant was observed as being completely ambulatory with an unremarkable gait.
This case is unusual in that not just one, but all three consulting examiners (i.e., Drs. Chisesi, Cenac and Durdin), specifically noted medical evidence of exaggeration/malingering.
In her January 8, 1998 psychiatric review technique form, Charlotte Ducote, PhD., opined that claimant's alleged mental impairments caused no more than a "slight" limitation in his activities of daily living, or in his ability to maintain social functioning. [Adm.Rec. 216]. She further reported that claimant "seldom" had deficiencies of concentration, persistence or pace, and "never" had episodes of deterioration or decompensation in a work or work-like setting. [Adm.Rec. 216].
Claimant did not seek any treatment for depression and was not prescribed any anti-depressant medications by any treating physician until after ALJ rendered his decision in this case, finding that the claimant's impairments neither singly nor a combination were "severe" within the meaning of Heckler. Thereafter, claimant's March 29, 1999 psychiatric evaluation performed at the Lafourche Mental Health Center (LMHC) resulted in a diagnosis of depression (i.e., "Axis I MDE, moderate"). It is noteworthy that claimant's mental condition was characterized as "moderate" and not severe. [Adm.Rec. 226 Exh. AC-2]. The treating psychiatrist's Axis II diagnoses, which includes personality disorders and mental retardation, was that claimant exhibited no such mental impairment. Allen's treating psychiatrist specifically indicated that by filling in a zero adjacent to Axis II. Id. Under Axis IV pertaining to life's stressors that impacted claimant's mental condition, his treating psychiatrist noted that they also were moderate, to wit: "Moderate. Back Injury, marital discomfort, and mom deceased 3 years ago." Id. (emphasis supplied). Id.
The history of claimant's illness (i.e., what brought patient to the clinic) was that claimant "was not working, depressed, under pressure to support [his] family, and [had] no income." [Adm.Rec. 227]. As to his work and education, Mr. Colby Robichaux's notes reflect, that while claimant was currently unemployed, since the age of eighteen, Allen held 7 or 8 jobs and was never fired. [Adm.Rec. 230]. It is further noted that although he was in special education, claimant completed the seventh grade and went to trade school and Job Corps. Id. Claimant's March 29, 1999 psychiatric evaluation reveals that his judgment was fair and his insight was good. [Adm.Rec. 226 (emphasis supplied)]. LMHC records further reflect that claimant has had no hospitalizations and no suicide attempt. [Adm.Rec. 225, 227]. Also, claimant denied having any problems with alcohol or drugs, in the context of his psycho social evaluation on March 18, 1999. [Adm.Rec. 228]. Antidepressant drugs including Elavil and Benadryl/Effexor XR were prescribed on March 29, 1999. [Adm.Rec. 226]
LMHC's progress notes dated April 12, 1999, indicate that claimant's wife works at McDonald's and that claimant cares for the four year old, the youngest of their three children. [Adm.Rec. 224]. The April 12th progress notes further reflect that claimant took no naps during the day, his mood was better, he was less irritable and had no mood swings. Id. Claimant was continued on Benadryl (Diphenhydramine HCl) and anti-depressant medications, Effexor XR (Venlafaxine HCl), and Elavil (Ametriptyline HCl)and Risperdal (Risperidone). On May 3, 1999, Dr. Wilson observed that claimant's affect was pleasant, his thoughts were goal directed, he was cooperative, cleanly dressed, calmer, less irritable and on a diet. [Adm.Rec. 222-23]. LMHC's progress notes dated May 3, 1999 indicate that no abnormal movements were observed. [Adm.Rec. 222] Claimant was continued on the aforesaid anti-depressant medications and scheduled to return in one month to see Dr. Wilson. Claimant did not show for his June 2, 1999 appointment. However, claimant called the clinic and later rescheduled his appointment for July 15, 1999.
Benadryl/diphenhydramine is an antihistamine used to treat allergies and movement disorders caused by antidepressant drugs. See The American Medical Association Guide to Prescription and Over-the-Counter Drugs, at 317.
Essentially, the 1999 LMHC treatment records on Allen reflect that other than his initial psychosocial and psychiatric evaluations on March 18th and 29th, 1999 respectively, claimant was seen twice for his depression: once, on April 12, 1999 at which time improvement was noted; and again, on May 3, 1999, at which time it appeared his depression continued to improve with the prescribed anti-depressant medications.
See Lafourche Mental Health Center Progress Chart dated April 12, 1999 wherein the following is noted regarding claimant's mental condition: "mood-better, less irritable 3/10,. . . patient stays with four year old. . . no mood swings." [Adm.Rec. 224].
See Lafourche Mental Health Center Progress Chart dated 5/3/99 wherein the following regarding the claimant is noted: "thoughts goal directed, mood — 5/10, calmer, less irritable. . . on diet as per nutritionist. . . affect-pleasant, cooperative, cleanly dressed. . . no abnormal movements." [Adm.Rec. 222-223].
B. Factual Background
Claimant testified at the hearing that he was 30 years old, 5 feet four inches tall, and that he did not really know his current weight, but that the doctor's note reflected 264 pounds. [Adm.Rec. 29-30]. He testified that he was a licensed driver. [Adm.Rec. 29 30, 33]. He further testified that he had finished the seventh grade in special education. [Adm.Rec. 35]. Allen told that ALJ that he could only read "little words," could only write his name, and had trouble spelling. [Adm.Rec. 35]. Allen testified that his last job was working on a garbage pick-up truck. He also remembered having done cement work, fixed flat tires, and having worked in a crab factory and a cane field. [Adm.Rec. 36]
Allen testified that he has been disabled since July 1, 1996, when he hurt his back and he has been out work since that date. [Adm.Rec. 37]. He explained that when he used to work it would make his back swell up along with his knees and both of his legs and it hurt real bad. [Adm.Rec. 38].
Allen testified that his back hurt so bad on the way to his hearing that his wife had to stop the car several times so that he could get out the car and stand up for awhile. [Adm.Rec. 34]
[I]t hurts so bad, really, you be wanting to kill yourself, really . . . . And, you know, it makes me depressed a lot, feel bad, don't want to do nothing except lay down and be depressed, think about crazy things. Irritates you really, and stuff.
* * *
My leg right leg be giving out on me. Most of the time I got to walk with a cane because if I don't I fall down and stuff.
* * *
Well, most everything really, laying down, sitting down,. . . walking around make it worse. [Adm.Rec. 39-40]
Allen testified that he is treated at Charity, he goes there about once every six months, and the medication does not relieve his pain. [Adm.Rec. 40]. His testimony was further to the effect that he really is not able to walk much at all, and he cannot bend, stoop, squat or make any movements like that. [Adm.Rec. 41] Additionally, Allen testified that he had other problems including an inability to sleep at all at night, in addition to a cracked shoulder bone, headaches, breathing problems, blurred vision, and high blood pressure.
Allen testified that his wife helps him showering, brushing his teeth, and combing his hair. [Adm.Rec. 48-49]. He explained that if she does not comb his hair, he just leaves it a mess. According to the claimant, he just gets up in the morning, sits down and watches his kids play on the floor. His wife does the cooking, the laundry, the shopping and the housework. [Adm.Rec. 49 So]. He further testified that his wife works at McDonalds, two of his three children are in school, and the three year old is at home. [Adm.Rec. 49].
C. Discussion of the Issues.
1. The Severity of Claimant's Impairments.
A review of the ALJ's decision shows that step 2 of the sequential evaluation process it was determined that the claimant had no impairment or combination of impairments which was "severe" within the meaning of the Social Security Regulations. [Adm.Rec. 16]. The ALJ explained his conclusion as follows:
The claimant's statements concerning his impairments and their impact on his ability to work are not entirely credible in light of the reports of the treating and examining practitioners and the findings made on examination. The minimal findings do not reasonably support the degree of pain and the functional limitations alleged. First, the claimant's numerous physical examinations did not reveal any objective functional abnormalities. The examinations revealed subjective range of motion limitations, but negative straight leg raise. There was no sensory deficits to either pin prick or light touch. There was no atrophy of either lower extremity. The claimant was neurologically intact. The claimant was completely ambulatory with an unremarkable gait and posture. Dr. Cenac indicated that there were no physical restrictions. (Ex. 4F). The treating report dated April 8, 1997, from Leonard J. Chabert, noted that the claimant could return to work. (Ex 3F/6).
Further, all three consulting examiners indicated that there was evidence of exaggeration. Dr. Victor P. Chisesi, indicated that the claimant demonstrated no motion in his back, had questionable or moderate muscle spasm, and walked with an obvious limp. However, the doctor qualified these findings by reporting that there was a positive malingering element present. (Ex. 2F/2). Dr. Cenac reported that there was significant emotional overlay and symptom magnification present during his examination (Ex. 4F/l). Likewise, Dr. Durdin, the consulting psychologist, reported there was grossly exaggerated mental incompetence during the examination. Her report reflects that the claimant couldn't name any colors of the American Flag. Further he identified a penny as a quarter and stated that Winter means hot. These are clear examples of exaggeration, because the claimant has a work history, drives a car, visits friends, watches boxing and wrestling, and communicates fully intelligible sentences (Ex. 5F)See ALJ's Decision [Adm.Rec. 18-19]
In summary, the ALJ concluded that while the documentary evidence reveals that the claimant has lumbar disc disease, depression and some alcohol abuse, the overall evidence revealed no physical abnormalities or functional restrictions and his mental condition has not resulted in limitations in his daily activities. In so concluding, "considerable weight was given to the findings of Dr. Cenac at Exhibit 4F and of the State Agency non examining psychologist at Exhibit 6F" as required by the Social Security Regulations.
See ALJ's Decision [Adm.Rec. 19].
A fair reading of the evidence of record discussed above in this Court's review of the medical evidence reveals that substantial evidence supports the ALJ's decision. The ALJ recognized the claimant's impairments, thoroughly discussed same in the context of his complete and accurate discussion of the medical evidence, and determined that claimant's impairments were not "severe" giving appropriate weight to the claimant's treating sources. Claimant's counsel's contention that the ALJ primarily relied on his evaluation of the claimant's credibility in reaching his decision finds no support in the record.
Claimant's 1999 LMHC mental health records indicate that plaintiff finally sought treatment for his alleged depression, but only after the ALJ's decision issued in this case. The diagnosis was moderate and not severe depression. LMHC's progress notes further reflect that his condition was being controlled with monthly visits including counseling, prescription anti-depressants, and counseling.
As to medical opinions of a specialist regarding the issues, they are generally accorded more weight than the opinions of a source who is not a specialist. 20 C.F.R. § 404.1527 (d)(5), 416.927(d)(5). However, specialization is only one of several factors considered in the evaluation of medical opinions. 20 C.F.R. § 404.127 (d)(1)-(6), 416.927(d) ((1)-(6). More weight is given to opinions supported by specific explanations and clinical findings and which are consistent with the record as a whole and an ALJ need not give weight to medical opinions not supported by clinical findings. 20 C.F.R. § 404.1527 (d)(3), (4), 416.927(d)(3), (4).
The Court further notes that no special significance is accorded to the source of an opinion on issues reserved to the Commissioner, such as whether impairments meet or equal the requirements for impairments in the Listing. The Commissioner may give less weight to a physician's opinion when the physician's opinion is so brief and conclusory that it lacks strong persuasive weight, is not supported by medically acceptable clinical or laboratory diagnostic techniques, or is otherwise unsupported by the evidence. Leggett, 67 F.3d at 566; Spellman, 1 F.3d at 364.
Claimant's 1999 LMHC mental health records do not address whether the claimant's mental condition poses any restrictions on the claimant's activities or limit his ability to perform basic work functions. Claimant's 1999 LMHC Psychosocial and Psychiatric Evaluation and the progress notes from two monthly follow-up visits, thereafter, simply reiterate the claimant's statements regarding his alleged disabling back injury/pain. There are no opinions expressed in the LMHC 1999 mental health records that the claimant's mental condition significantly limits his ability to perform basic work functions or restricts his daily activities.
The medical evidence and the record as a whole does not, as counsel for claimant argues, paint a picture of a severely impaired, functionally illiterate, suicidal or homicidal black male, with impaired judgment and insight, incapable of performing any work.
Substantial evidence of record previously discussed supports the ALJ's determination that the claimant's impairments are not "severe" with the meaning of Stone v. Heckler. As to counsel's argument that the claimant is functionally illiterate, even the most recent mental health treatment records ( i.e., LMHC's 1999 mental treatment records), indicate that the claimant is not functionally illiterate. His mental health records reflect that since the age of 18, the claimant has held 7 or 8 jobs and was never fired. They further reflect that claimant completed the seventh grade in special education and went to trade school and Job Corps. [Adm.Rec. 230 Exh. AC-2]. The Psychiatric Review further indicates that the claimant is not mentally retarded. The 1999 LMHC mental health records do not indicate any episodes of deterioration or decompensation in a work-like setting which cause him to withdraw from that situation or to experience exacerbation of his mental condition.
It is quite apparent on the face of the record that Allen's treating psychiatrist at LMHC never seriously considered him potentially suicidal or believed that there was any real risk of suicide. LMHC's 1999 mental health records on Allen note no suicide attempts or past hospitalizations. Antidepressant medications, Elavil, Effexor XR, and Risperdal, were all prescribed in tandem. Relatively large numbers of sample tablets of one or more of these drugs along with prescriptions for the other two were dispensed to Allen by the clinic at the time of his visits, including the date of his psychiatric evaluation. [Adm.Rec. 221]. Precautions with respect to each of the prescription drugs Elavil, Effexor XR, and Risperdal, include the warning that potentially suicidal patients should not have access to large quantities of this drug and prescriptions should be written for the smallest amount feasible. The warnings further advise that close supervision of potentially suicidal patients should accompany drug therapy. See 2001 Physician's Desk Reference (PDR), at 626, 1581, and 3362. Allen's visits to the LMHC after his initial psychiatric evaluation were approximately once a month.
As to counsel's suggestion that the claimant is homicidal, the only reference to homicide in the record appears in Mr. Colby's March 18, 1999 PSYCHOSOCIAL Evaluation, however, it simply refers only generally to some unspecified homicidal history, without any description or notation regarding the content of any such ideation, its frequency of occurrence, and/or the date of the first such ideation. [Adm.Rec. 228]. The Court notes that in the later March 29, 1999 Psychiatric Evaluation and in LMHC's progress notes which follow, there is absolutely no mention of any homicidal history, homicidal thought content, homicidal ideation, incident of violence, incident of uncontrolled temper, or the like.
It is also important to note that Allen denied both suicidal and homicidal ideation in his psychiatric evaluation with Dr. Durdin. Also, whereas Allen indicated in his psychiatric and psychosocial evaluation at LMHC that he drank a beer or two but denied having any substance abuse problems, in his interview with Dr. Durdin on December 16, 1997, Allen freely described both occasional alcohol and substance abuse over a period of years. Finally, the Court notes that while the claimant reported to his treating psychiatrist on March 29, 1999 that at night time he had visual and auditory hallucinations of his mom calling his name, and such visual and auditory hallucinations commenced when his mom passed away three years ago [Adm.Rec. 225], the claimant made no mention of such disturbing audio-visual hallucinations to Dr. Durdin on December 16, 1997 and did not mention any such hallucinations during his administrative hearing. In fact, Allen told Dr. Durdin that he lost both of his parents at a young age, and that his older sister finished raising the children. [Adm.Rec. 207]. Dr. Durdin's report reflects that the claimant denied suicidal and homicidal ideation, that he was alert and without any evidence of psychosis. Id.
The Court further notes that Mr. Colby Robichaux's March 18, 1999 Psychosocial Evaluation indicated that the claimant's judgment and insight was poor, claimant's later March 29 Psychiatric Examination indicates precisely the opposite ( ie., "Judgment-fair; Insight-good"). See March 29, 1999 Psychiatric Evaluation [Adm.Rec. 226 Exh. AC-2]. The psychiatric evaluation further indicated that claimant was calm, had good eye contact, good rapport and his thought processes were goal-oriented. The diagnosis of claimant's condition was moderate depression. [Adm.Rec. 221 and 226]. Claimant's psychiatrist described the stressors in claimant's life as moderate, and identified such stressors as his back injury, marital discomfort, and the decease of his mother three years prior.
The LMHC's 1999 mental health records on Allen, which were submitted and made of the record before the Appeals Counsel, consist of a psychosocial assessment and a psychiatric evaluation, with progress notes from two follow up visits. The diagnosis of depression is cumulative of evidence which was before ALJ Curran to effect that one of the claimant's impairments was depression. The 1999 LMHC mental health records are not inconsistent with the determination that Allen's depression is not severe.
This Court's de novo review of the record as a whole including all of the medical evidence, plaintiff's testimony, and AU's decision, reveals that the AU's determinations through step two of the sequential evaluation process that the claimant's impairments do not significantly limit either his ability to perform basic work-related functions or to perform activities of daily living, are supported by "substantial evidence."
As previously discussed, once the claimant is found "not disabled" at step two in the sequential evaluation process, the remaining steps are properly not considered by the ALJ.
Notwithstanding the foregoing, the Court addresses the claimant's argument that he satisfies the requirements of level of severity for Listings 1.05(c) (vertebrogenic disorder) and the suggestion that claimant satisfies Listing 12.05 (mental retardation) and/or is functionally illiterate.
In order to meet Listing 1.05(c) Listing level of severity, there must be objective evidence establishing the existence of a vertebrogenic disorder with the following symptoms persisting for at least 12 months, including: (1) pain, muscle spasm, and significant limitation of motion in the spine; and (2) appropriate radicular distribution of significant motor loss with weakness and sensory and reflex loss. See 20 C.F.R. § 404, Subpart P, Appendix 1, S. 1.05C (1999). In addition to the paucity of objective evidence establishing the existence of a vertebrogenic disorder in this claimant's case, the medical evidence uniformly indicates that the claimant has no sensory deficits or reflex loss, and thus, does not meet the requirements of Listing 1.05(c).
Now addressing claimant's suggestion that he is functionally illiterate and the implication that he meets the requirements of the level of severity for Listing 12.05, it provides:
12.05 Mental Retardation and Autism: Mental retardation refers to a significantly subaverage general intellectual functioning with deficits in adaptive behavior initially manifested during the developmental period (before age 22). (Note: The scores specified below refer to those obtained on the WAIS, and are used only for reference purposes. Scores obtained on other standardized and individually administered tests are acceptable, but the numerical values obtained must indicate a similar level of intellectual functioning.) "Autism is a pervasive developmental disorder characterized by social and significant communication deficits originating in the developmental period.
The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied. (A) Mental incapacity evidenced by the dependence upon other for personal needs (e.g., toileting, eating, dressing, bathing) and inability to follow directions, such that the use of standardize measures of intellectual functioning is precluded;
(B) A valid verbal, performance, or full scale I.Q. of 59 or less;
(C) A valid verbal, performance, or full scale I.Q. of 60 through 70 and a physical impairment imposing additional significant work-related limitation of function; or
(D) A valid verbal, performance, or full scale I.Q. of 60 through 70 or in the case of autism, gross deficits of social and communicative skills.
At the outset claimant's own treating psychiatrist found no such impairment and filled in a zero as to any Axis II diagnosis. Dr. Durdin reported that claimant did not cooperate with testing and grossly exaggerated his mental incompetence on the WAIS R. Listing 12.05 necessarily presumes that test results are valid. If for any reason the claimant does not cooperate or is exaggerating his mental aptitude, test results would not be valid. Dr. Durdin, the examiner, opined that the claimant was not mentally retarded, considering that he fully and intelligibly spoke in complete sentences, was a licensed driver, held a number of jobs and had a level of language development which exceeded the level of mental retardation. Her assessment in that vein finds further support in claimant's 1999 LMHC records discussed previously in detail.
It is apparent that the ALJ recognized that depression, diagnosed by a medical professional, is objective medical evidence of pain, to the same extent as the results of an X-ray or a CT-scan. The 1999 LMHC mental health records noting a diagnosis of depression in the claimant's case is cumulative of Dr. Durdin's earlier diagnosis of some depression, which was not severe.
The technique employed by the SSA to evaluate the severity and impact of a mental impairment was utilized by Charlotte Ducote, Ph.D., a medical consultant with the state agency. In this case, on January 1, 1998, she employed the Psychiatric Review Technique which considers four functional areas essential to the ability to work: activities of daily living; ability to maintain social functioning; concentration, persistence and pace in performing activities; and deterioration or decompensation in work or worklike settings. Allen was rated slight, slight, seldom and never in these four functional areas, which resulted in the determination that his impairments were not "severe." [Adm.Rec. 209 Exh. 6F] ALJ Curran also filled out the Psychiatric Review Technique Form, which is attached to his decision, and concluded regarding the four functional areas "none, none, never, and never" and similarly concluded claimant's impairments were not severe. [Adm.Rec. 23]
The claimant's 1999 LMHC mental health records do not undermine the ALJ's determination that the combined impact of the claimant's impairments on his ability to function was not "severe." The ALJ's determination is supported by substantial evidence.
As to the suggestion that the claimant is illiterate, his testimony was to the effect that he could read little words, he could write his name, and had trouble spelling. Albeit in special education classes, the record further reflects that Allen finished the seventh grade and never failed a grade. It also reflects that he has held eight or nine jobs since he was eighteen years old and was never fired from any prior employment. The evidence of record simply does not wash with counsel's suggestion that Allen is somehow functionally illiterate, and there is substantial evidence to the opposite effect.
Applicable regulations define illiteracy as "the inability to read or write." 20 C.F.R. § 404.1564 (b)(1) and 416.964(b)(1).
As to the obesity Listing 9.09, the Commissioner correctly notes that such listing was deleted effective October 25, 1999, when the claimant's case was pending review by the Appeals Council. The final rule issued by the Commissioner applies to cases pending at the time the rule became effective. See 64 Fed.Reg. at 46127 (indicating the Commissioner's intent that all adjudications made after October 25, 1999, be made in accordance with the revised Listing). An award in this case cannot be made on the basis of a Listing which no longer exists, and which Listing was deleted prior to the final adjudication of the claim in this case.
See Revised Medical Criteria for Determination of Disability, Endocrine System and Related Criteria, 64 Fed. Reg. 46122 (1999).
In any event, there is a complete paucity of evidence in this case, medical or otherwise, which suggests that the slight functional and daily activity limitations which result from claimant's impairments, are in any way magnified by the fact that the claimant is overweight. Claimant himself did not attribute any physical restrictions or functional limitations to his size and weight, and did not profess experiencing any physical or mental effects on account of his weight. The claimant simply testified that Charity told him that prior to any back surgery, he would have to lose weight, but that, Charity would not perform back surgery in any event because there was only a 50/50 chance that it would improve his condition. [Adm.Rec. 39]. The claimant's testimony as to what limited his ability to function was: (1) his constant severe back pain which radiated down his right leg, and made everything swell up; and (2) such pain made him feel badly and depressed. [Adm.Rec. 38, 39]
The Court now turns to claimant's argument that the ALJ was bound by the SSA's prior concession in a January 22, 1997 Notice of Disapproval [Adm.Rec. 55 Exh. lB] that his condition was severe. The referenced determination of January 17, 1997 was that claimant's condition was not disabling on any date through 9/30/96 and such determination was made on a very limited record, which did not include all of the medical evidence and testimony which was considered by ALJ Curran, and upon which his September 11, 1998 decision was based. Necessarily, the brush of ALJ Curran's September 11, 1998 decision was much broader and spanned the time up to and including the date of his decision.
The ALJ, as the fact finder, evaluated the record in its entirety, weighing the claimant's testimony and the expanded record as he deemed appropriate considering the applicable regulations that is the province of the ALJ. A reviewing court may not reweigh the evidence.
Counsel's argument that the Commissioner previously conceded that the claimant's impairments were severe and that the ALJ was somehow bound by a statement to that effect in an earlier notice of disapproved claim is without merit. The very same rationale which militates in favor of rejecting the Government's argument that an issue-exhaustion requirement affects a waiver of issues not raised in claimant's administrative case, easily cuts the other way and nixes the claimant's argument that this Court should construe a statement made in the context of a prior denial of benefits as a judicial admission.
As previously discussed, Social Security proceedings are inquisitorial rather than adversarial, and it is the duty of the ALJ to develop the facts both for and against granting benefits. So long as substantial evidence exists from which the ALJ can base his decision, such decision cannot be disturbed. There is substantial evidence in the record which supports the ALJ's findings and his conclusion that the claimant was not "disabled" within the meaning of the Act.
2. Credibility: Testimony/Subjective Complaints of Disabling Pain and other Symptomatology
The Court now addresses the claimant's argument that the ALJ erred in basing his determination primarily on the evaluation of the claimant's credibility. The medical evidence discussed in detail by this Court belies any suggestion that the ALJ failed to give substantial weight to treating sources. The ALJ specifically rejected the claimant's view of his own functional limitations finding his testimony exaggerated and contradicted by the medical records rand his own prior statements/actions. The ALJ is wellfounded in this conclusion.
The law of the Fifth Circuit is that pain reaches the level of a disabling complaint when such pain is constant, unremitting, and wholly unresponsive to therapeutic treatment. Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994)
As to a determination of whether the claimant's pain is disabling, the first consideration is whether the objective medical evidence shows the existence of an impairment which could reasonably be expected to produce the pain alleged. Medical factors which indicate disabling pain include: limitation of range of motion, muscle atrophy, strength deficits, sensory deficits, reflex deficits, weight loss or impairment of general nutrition, noticeable swelling, and muscle spasm.
With regard to the plaintiff's complaints of disabling, unremitting pain in his back, legs, feet, etc., the record discloses no objective medical factors to support such a finding. The medical records disclose no noticeable swelling, no muscle atrophy, no sensory deficits, no reflex deficits, no weight loss. The medical evidence admits subjective limitation of motion. The medical evidence was uniformly to the effect that claimant was neurologically intact.
As to whether claimant's complaints regarding his functional limitations, constant pain, and symptomatology were contradicted by substantial evidence, they were. The medical records and other evidence do not support the claimant's assertions.
Allen testified at the hearing that in addition to his constant unremitting back pain radiating to his legs and swelling, he also suffers from bad headaches accompanied by trouble breathing, blurry vision, a cracked shoulder problem which irritates him when it rains and causes his hands to go numb, high blood pressure and depression. The medical records do not reflect any notations to the effect that prior to the hearing the claimant ever complained to any treating physician or consulting examiner that he had problems with headaches, blurry vision, a cracked shoulder, high blood pressure, or depression.
Claimant did not seek any treatment for his alleged depression problem until after the ALJ's decision issued in this case denying his claim for benefits on the basis of his alleged impairments either singly or in combination were not severe within the meaning of Stone v.Heckler. That in and of itself is of no great cause for concern, since depression is one of the most under-reported and under-diagnosed mental illnesses. The cause for concern, however, resides in the fact that when claimant did seek treatment for his depression from LMHC in 1999, he gave a history to those mental health care professionals which directly contradicted his prior assertions to medical professionals consulted by the SSA in his case. See Discussion, supra, at pp. 30-32.
The suggestion here is that the story told to mental health care professionals by Allen prior to the determination failed to result in a favorable determination, so thereafter, claimant sought treatment for his depression and exaggerate/embellished even more than he had prior to and during the hearing.
Also, the medical records in evidence to date reflect that the claimant has never at any time been hospitalized, or confined for the purposes of treating any physical or mental impairment and/or resulting pain and symptomatology, which he presently claims are disabling.
As to his alleged constant back pain, claimant testified during the hearing that because of his pain he needed a cane and then later testified he could not walk at all. Yet, Dr. Sandra Durdin observed that the claimant was completely ambulatory and walked with an unremarkable gait and posture. Dr. Durdin noted that Allen was apparently charged with the care of two of his small children while his wife worked at Rouse's. Dr. Durdin also reported her observation that claimant did not cooperate with testing and grossly exaggerated his mental incompetence which formed, in part, the basis of the ALJ's decision not to fully credit the testimony of the claimant.
Claimant's 1999 Lafourche Mental Health Center progress notes reflect that he is still entrusted with care and custody of the youngest child, then four years old, while his wife works at McDonalds and their two older children attend school. [Adm.Rec. 224].
The Court previously mentioned that Dr. Victor Chisesi of the Bone and Joint Clinic highlighted the malingering element in this claimant's case, and qualified his findings with the fact there was a such an element in this case. Dr. Cenac similarly noted significant emotional overlay and symptom magnification and found no evidence of dysfunction from an orthopedic standpoint, and that the claimant was fully employable at any level of physical activity and no physical restrictions applied. Additionally, claimant's treatment records from Leonard J. Chabert Medical Center dated April 8, 1997 noted that the claimant could resume work. [Adm.Rec. 196 Exh. 3F6]
The ALJ expressly rejected Allen's testimony relative to severity of his symptomatology and pain and the allegedly resulting severe restrictions on his ability to work and perform daily activities. As required, the ALJ explained that such testimony was inconsistent with and contradicted by the medical records and findings made upon examination of the claimant. The ALJ made specific mention of the fact that "all three consulting examiners noted there was evidence of exaggeration." [Adm.Rec. 18]
Considering the record as a whole, the ALJ's refusal to fully credit the claimant's testimony does not constitute error, and is supported by substantial evidence which has been discussed at length above. Credibility determinations are within the province of the ALJ. They are entitled to considerable weight. An ALJ is not required to accept the entirety of the claimant's perception of his disability. The evaluation of an individual's subjective complaints is based upon the record as a whole.
Complaints of unremitting disabling pain, symptomatology and functional limitations which preclude gainful employment may be discounted, as they were in the instant case, if the claimant's complaints are not borne out by the objective medical evidence. Neither the record as whole, nor the medical evidence of record, lend support to the claimant's testimony at the hearing.
Malingering, and/or faking, and/or exaggerating invite invalid results upon medical tests, whether upon mental or physical examination or evaluation. This concern was specifically voiced in this case by three different consulting physicians and handily explains the complete absence of objective medical evidence to support the claimant's complaints of "severe" impairment.
This is not a case where the treating and consultative physician's reports conflict or vary to any significant degree. Substantial evidence supports the ALJ's findings and conclusions, including the following: (1) the minimal findings of the treating and examining practitioners do not reasonably support the degree of pain and functional limitations and/or restrictions alleged; (2) there is a complete absence of evidence of objective functional abnormalities; (3) the overall evidence reveals no physical abnormality; (4) the claimant greatly exaggerated the severity of his physical limitations; (5) the claimant was not fully credible; and (6) claimant's impairments, neither singly, nor when considered in combination, are "severe" within the meaning of Stone v. Heckler.
The record in this case is rife with evidence of exaggeration and/or malingering, before, during and after the administrative hearing. What appears as a considered lack of veracity viewed in the context of the whole record, cannot be explained simply by reference to any mental impairment from which the claimant may suffer. The cold record in this case presents a daunting study of a credibility challenged claimant. Even the treating psychiatrist at UMHC who saw the claimant on three occasions in 1999 never indicated so much as even a suspicion of mental retardation or functional illiteracy. Considering all of the particular circumstances discussed in detail above, the Court cannot say that this matter was inappropriately concluded at Step 2 of the sequential evaluation process, since the Commissioner's decision finds support in substantial evidence.
Where the degree of pain alleged is significantly greater than that which can reasonably attributed to the objective physical findings, SSA regulations provide that the adjudicator must carefully explore any additional limitations imposed by the pain or other symptom of the individual's functional ability beyond those limitations indicated by the objective evidence before any conclusions about severity can be reached. SSR 96-3p, 96-7p. Substantial evidence reflects that the ALJ complied with these regulations.
For all of the above and foregoing reason's the decision of the Commissioner is AFFIRMED.
Accordingly,
IT IS ORDERED that:
(1) that the Commissioner's Motion for Summary Judgment is GRANTED; and
(2) that the Plaintiff's Motion for Summary Judgment is DENIED.