Opinion
Case No. 02-4174-JAR
March 25, 2004
MEMORANDUM ORDER REVERSING DECISION OF DEFENDANT
Plaintiff Christian P. Gatts brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of Defendant Commissioner of Social Security's denial of his application for a period of disability and disability insurance benefits under Title II of the Social Security Act. Because the Court finds that Defendant failed to accord adequate weight to the opinion of Plaintiff's treating physician, the Court reverses and remands pursuant to the fourth sentence of 42 U.S.C. § 405(g).
I. Procedural Background
On March 2, 2000, Plaintiff filed his application for a period of disability and disability insurance benefits, claiming disability since February 1 6, 2000, due to rheumatoid arthritis, tendinitis and depression. The application was denied both initially and upon reconsideration. At Plaintiff's request, an administrative law judge ("ALJ") held a hearing. On April 26, 2002, the ALJ rendered a decision denying all benefits, on the basis that Plaintiff was not under a "disability" as defined by the Social Security Act. After the ALJ's unfavorable decision, Plaintiff requested review by the Appeals Council; his request for review was denied on October 7, 2002. Thus, the ALJ's decision is the final decision of Defendant.
II. Standard of Review
Judicial review under 42 U.S.C. § 405(g) is limited to whether Defendant's decision is supported by substantial evidence in the record as a whole and whether Defendant applied the correct legal standards. The Tenth Circuit has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." In the course of its review, the court may not reweigh the evidence or substitute its judgment for that of Defendant.
See White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001) (citing Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994)).
Id. (quoting Castellano, 26 F.3d at 1028).
See id.
III. Relevant Framework for Analyzing Claim of Disability and the ALJ's Findings
"Disability" is defined in the Social Security Act as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . . ." The Social Security Act further provides that an individual "shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . ."
Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (quoting 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A)(1982)).
Id. (quoting 42 U.S.C. § 423(d)(2)(A), 1382c(a)(3)(B) (1982 Supp. Ill 1985)).
The Social Security Administration has established a five-step sequential evaluation process for determining whether a claimant is disabled, and the ALJ in this case followed the five-step process. If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary. Step one determines whether the claimant is presently engaged in substantial gainful activity. If he is, disability benefits are denied. If he is not, the decision maker must proceed to the second step. Here, the ALJ determined that Plaintiff was not engaged in substantial gainful activity and, thus, properly proceeded to the second step.
See id. (citing 20 C.F.R. § 404.1520, 416.920 (1986)).
Id.
Id.
Id.
Id.
The second step of the evaluation process involves a determination of whether "the claimant has a medically severe impairment or combination of impairments." This determination is governed by certain "severity regulations," is based on medical factors alone, and, consequently, does not include consideration of such vocational factors as age, education, and work experience. Pursuant to the severity regulations, the claimant must make a threshold showing that his medically determinable impairment or combination of impairments significantly limits his ability to do basic work activities. If the claimant is unable to show that his impairments would have more than a minimal effect on his ability to do basic work activities, he is not eligible for disability benefits. If, on the other hand, the claimant presents medical evidence and makes the de minimis showing of medical severity, the decision maker proceeds to step three. The ALJ in this case concluded that Plaintiff has a combination of impairments that satisfies the severity requirement: rheumatoid arthritis; rotator cuff tendinitis, right shoulder, status post arthroscopic subacromial debridement; umbilical hernia; and dysthymic disorder, late onset. Thus, the ALJ properly proceeded to step three.
Id. (quoting Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987)).
Id. (citing 20 C.F.R. § 404.1520(c), 416.920(c) (1986)).
Id. at 750-51 (citing 20 C.F.R. § 404.1521(b), 41 6.921(b) (1986)).
Id. at 751.
Id.
In step three, the ALJ "determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity." If the impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to benefits. If not, the evaluation proceeds to the fourth step, where the claimant must show that the "impairment prevents [the claimant] from performing work he has performed in the past." If the claimant is able to perform his previous work, he is not disabled. With respect to the third step of the process in this case, the ALJ determined that Plaintiff's impairments were not listed or medically equivalent to those listed in the relevant regulations. At the fourth step, the ALJ concluded that Plaintiff was unable to perform past relevant work and further, had "no readily acquired transferable work skills."
Id. (citing 20 C.F.R. § 404.1 520(d), 416.920(d) (1986); Bowen v. Yuckert, 482 U.S. at 141).
Id.
Id. (citing 20 C.F.R. § 404.1 520(e), 41 6.920(e) (1986); Bowen v. Yuckert, 482 U.S. at 141).
Id.
Thus, the ALJ proceeded to the fifth and final step of the sequential evaluation process — determining whether the claimant has the residual functional capacity (RFC) "to perform other work in the national economy in view of [his] age, education, and work experience." At that point, the ALJ properly shifted the burden of proof to Defendant to establish that Plaintiff retains the capacity "to perform an alternative work activity and that this specific type of job exists in the national economy." At this step, the ALJ concluded that Plaintiff was not disabled, a conclusion that rested on finding that Plaintiff's allegations regarding his limitations were not entirely credible, and that although he has some limitations, Plaintiff is a "younger" individual with a high school education and one year of college and has the residual functional capacity to perform sedentary, unskilled jobs that exist in significant numbers in the local and national economies, such as telemarketer, appointment clerk, and security monitor.
See id. (quoting Bowen v. Yuckert, 482 U.S. at 142).
See id. (citations omitted); accord White, 271 F.3d at 1258 (at fifth step, burden of proof shifts to Commissioner to show that claimant retains the functional capacity to do specific jobs).
IV. Analysis of Plaintiff's Specific Arguments
A. Opinion of Treating Physician regarding physical limitations.
Plaintiff contends that the ALJ erred in rejecting the opinions of his treating rheumato legist, Dr. Letourneau, that Plaintiff's exertional and nonexertional physical limitations, as well as mental limitations rendered Plaintiff disabled. A treating physician's opinion that a patient is disabled is not dispositive, but a treating physician's opinion about the nature and severity of the claimant's impairments should be given controlling weight if it is "well-supported and is not inconsistent with other substantial evidence." In addition to its consistency with other evidence, the court examines a treating physician's opinion with several factors in mind, including the length of the treatment relationship, the frequency of examination, and the extent to which the opinion is supported by objective medical evidence. In short, the ALJ cannot disregard a treating physician's opinion that a claimant is disabled without giving legitimate and specific reasons for doing so.
White, 271 F.3d at 1259 (quoting 20 C.F.R. § 404.1527(d)(2)).
Id. (citing 20 C.F.R. § 404.1527(d)(2)).
See Goatcher v. United States Dep't of Health Human Servs., 52 F.3d 288, 290 (10th Cir. 1995) (citing Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987)).
The ALJ explained that he rejected Dr. Letourneau's opinions because they were in the form of Medical Source Statements that were mere checklists lacking any justification or explanation of the opinions. The opinion of a treating physician may be rejected if it is brief, conclusory, and unsupported by medical evidence. But, the ALJ should consider whether there is supporting evidence in the record before rejecting opinions on the basis that they are conclusory.
Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987).
Here, the ALJ erred in finding that there were no objective medical or clinical findings in the record supporting Dr. Letourneau's opinions, particularly with respect to exertional limitations in Plaintiff's shoulders and arms. Dr. Letourneau opined that plaintiff could never engage in reaching or repetitive pushing and pulling, and could only occasionally engage in handling and fingering. The ALJ found that not only was there no objective medical or clinical findings supporting these opinions, but also that other clinical and medical evidence contradicted Dr. Letourneau's opinions. To be sure, during some examinations Plaintiff had full range of motion and mild pain or discomfort. But a complete and chronologic review of the records of treating physicians Letourneau, Gimple and Borchers reveals Plaintiff had episodic pain, decreased range of motion, and diminished strength. These problems were initially treated with periodic cortisone injections. The records of Drs. Letourneau and Gimple reveal that the steroid injections provided Plaintiff with temporary relief; however, the length of relief diminished over time, necessitating more frequent injections.
In 1999, Plaintiff was assessed as having rheumatoid arthritis and chronic bursitis, but he had good abduction and strength, only slightly decreased internal and external rotation in his shoulders, with some discomfort in the last 30°, and clinically observed tenderness. By early 2000, the treating physicians assessed Plaintiff as having rheumatoid arthritis, chronic shoulder pain and chronic tendinitis. In January 2000, Dr. Letourneau noted that the chronic tendinitis seemed to be "mechanical and more work-related than it is related to rheumatoid arthritis. . . . Of course he does a lot of lifting and a lot of repetitive activity at work. He does sanding, etc., which causes him problems."
The records further reveal that while the rheumatoid arthritis improved over time, the chronic rotator cuff tendinitis didnot. In March 2000, Dr. Letourneau's assessment also included fatigue and rotator cuff tendinitis. A May 2000 physical examination revealed decreased internal and external rotation in his shoulders. Given the diminished relief from steroid injections, on May 15, 2000, Dr. Gimple performed a "diagnostic arthroscopy of his right shoulder with debridement and decompression of the subacromial space."
Initially, the surgery seemed to improve the rotator cuff tendinitis. In May 2000, Dr. Gimple noted, "Plaintiff is doing well . . ., [h]is discomfort has been quite mild . . ., [and] he has full range of motion in his shoulder." But, by June 2000, Dr. Gimple's examination of Plaintiff revealed that although he had full range of motion in his right shoulder, he had discomfort away from his body. After treating Plaintiff for five months, and performing the surgery, Dr. Gimple did not see Plaintiff after his last examination in June 2000. Dr. Letourneau, however, continued to see Plaintiff, and his postoperative examinations revealed that Plaintiff continued to experience decreased range of motion in his shoulders, and pain. In July 2000, about two months postoperative, Dr. Letourneau opined that Plaintiff could not "handle any significant gainful employment at this time," and found that Plaintiff had shoulder pain and decreased internal and external rotation of the right shoulder.
In November 2000, Plaintiff was examined by his primary care physician, Dr. Borchers. Although Dr. Borchers found no decrease in range of motion "at this time," his examination of Plaintiff's shoulder revealed "tenderness in the anterior and lateral glenohumeral joint, none posteriorly, some tenderness over the proximal biceps tendon." He further found "significant pain with resisted internal rotation, less so with resisted external rotation. Lift test is positive. No distal asymmetry, but upper extremity musculature and strength is decreased at a ¾ level." Dr. Borchers' findings are consistent with Dr. Letourneau's findings that even postoperatively, Plaintiff's chronic rotator cuff tendinitis was not resolved; Plaintiff continued to suffer pain on internal and external rotation. Moreover, although Dr. Borchers did not mention fatigue, as Dr. Letourneau had mentioned in March, months before the surgery, Dr. Borchers found a decrease in upper body strength in November 2000, months after the surgery.
Dr. Letourneau's last examination of Plaintiff was also in November 2000. Consistent with Dr. Borchers, Dr. Letourneau found decreased internal and external rotation on abduction, along with marked pain. Dr. Letourneau's assessment included rheumatoid arthritis and fatigue.
The ALJ gave no weight to Dr. Letourneau's second Medical Source Statement in January 2002 because it was rendered some thirteen months after the doctor discontinued treatment of Plaintiff in November 2000. However, the ALJ erred in wholly rejecting Dr. Letourneau's first Medical Source Statement dated December 2000, because there were objective clinical and medical findings in the record supporting the conclusory opinions in the first Medical Source Statement. Moreover, although the second Medical Source Statement was apparently rendered without the benefit of any new examination or treatment, the ALJ failed to justify rejecting those opinions. Even an opinion rendered thirteen months after the last treatment arguably should have been given some weight. There were no opinions based on more recent examinations by any physician. Although Dr. Letourneau's records relevant to this case date from January 11, 1999 through November 21, 2000, he had treated Plaintiff for over five years for complaints of osteoarthritis, rotator cuff tendinitis, hernia, joint swelling and stiffness, chronic bursitis, fatigue, sleep difficulties, neck pain, general pain, problems concentrating and depression.
In comparison, the consulting physicians who provided a physical residual functional capacity assessment did not examine Plaintiff. While the ALJ did not actually state that he assigned greater weight to the consultative examiners, he apparently either improperly interjected his own medical opinion about the seriousness of the Plaintiff's condition, or relied on the consultative physicians, without explaining or justifying such reliance. An ALJ may not reject a treating physician's opinion based on his own speculation, credibility judgments, or lay opinion. Furthermore, an ALJ must generally give greater weight to the opinions of a treating physician than the opinions of examining or consulting physicians who do not observe, examine and treat the claimant over the same period of time.
McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002).
Washington v. Shalala, 37 F.3d 1437, 1440-41 (10th Cir. 1994); Kemp v. Bowen, 816 F.2d 1469, 1476 (10th Cir. 1 987) (treating physician's opinion generally accorded great weight because a treating physician is usually more familiar with a claimant's medical condition than other physicians).
Defendant may discount the opinion of a treating physician that is formed from Plaintiff's subjective complaints and not from the physician's other objective findings. But, Dr. Letourneau's opinions about Plaintiff's pain and fatigue find some support in the objective findings by he and Dr. Gimple. Both doctors noted tenderness in Plaintiff's shoulder, even when his range of motion periodically improved; and both doctors noted that Plaintiff had diminished strength in his shoulders and upper arms, even after surgery. Moreover, to the extent the ALJ rejected Dr. Letourneau's opinion as based on incredible subjective complaints, the ALJ erred in failing to fully evaluate the credibility of Plaintiff's complaints using the factors outlined in Luna v. Bowen, Under Luna, the ALJ must decide whether a claimant's subjective claims of pain are credible, considering such factors as a claimant's persistent attempts to find relief for his pain and his willingness to try any treatment prescribed, regular use of crutches or a cane, regular contact with a doctor, the claimant's daily activities, and the dosage, effectiveness, and side effects of medication. The ALJ must also give specific reasons why he or she rejects a claimant's subjective complaints of pain.
See Boss v. Barnhart, No. 02-7114, 2003 WL 21357260 at *3 (10th Cir. June 12, 2003).
834 F.2d 161 (10th Cir. 1987).
Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000) (citing Luna, 834 F.2d at 165-66).
White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001) (citing Kepler v. Chafer, 68 F.3d 387, 390-91 (10th Cir. 1995)).
The ALJ discounted Plaintiff's subjective complaints of pain apparently based on Plaintiff's testimony at the hearing that he was able to do laundry, help care for his four-year old daughter, clean house, prepare meals, attend church twice a week, and follow simple instructions. The ALJ's consideration of Plaintiff's activities of daily living as one element in his evaluation of Plaintiff's credibility was appropriate. But, there were other factors that the ALJ did not give apparent credence to: there was objective evidence of pain and tenderness particularly on internal and external rotation; there was decreased strength in the shoulder. And, the arthroscopy revealed chronic bursitis and other objective indicia of a pain producing condition. Moreover, Plaintiff repeatedly sought relief from his pain, receiving periodic cortisone injections, and surgery provided only temporary relief. In fact, by November 2000, his range of motion, pain and strength seemed to worsen.
Ultimately, credibility determinations "are peculiarly the province of the finder of fact," and should not be upset if supported by substantial evidence. But, the Court cannot find that the ALJ's credibility determination was supported by substantial evidence, given the lack of explanation or analysis of Luna factors other than Plaintiff's testimony about his daily activities.
White, 271 F.3d at 1261 (citing Kepler, 68 F.3d at 390-91).
B. Opinion of Treating Physician regarding mental limitations
Dr. Letourneau also rendered opinions about Plaintiff's mental limitations, filling out a Medical Source Statement that was a mere checklist. Unlike the physical Medical Source Statement, the opinions in the mental Medical Source Statement find little or no support in the medical record and appear to be based solely on Plaintiff's subjective complaints about memory loss. Dr. Letourneau did not note a memory problem until November 21, 2000, his last examination of Plaintiff. No memory problems are mentioned in the three years of prior notes of his examinations of Plaintiff. Further, it appears that Dr. Letourneau's opinion was based on Plaintiff's subjective complaints and information provided in a letter from Plaintiff's wife.
The ALJ properly rejected Dr. Letourneau's opinion, and relied instead on the opinions of Robert W. Barnett, Ph.D., who did a psychological consultive examination of Plaintiff on September 15, 2000. Although greater weight is typically given to the opinion of a treating physician, Dr. Letourneau's expertise was in rheumatology; he had no expertise in and was not treating Plaintiff for any mental disease. The consultative physicians examined and evaluated Plaintiff's subjective complaints of memory impairment. Dr. Barnett's diagnostic impressions was Dysthymic Disorder, late onset (Axis I) and no diagnosis on Axis II. Dr. Barnett opined that plaintiff, " . . . does not appear to be significantly intellectually limited and showed no difficulty with attention or concentration during the interview." Because plaintiff reported to Dr. Barnett that he had difficulty with memory, following routines and following steps in sequential tasks, Dr. Barnett thought it "might be useful to obtain intellectual and memory scores on this individual."
Further evaluation of plaintiff's intelligence and memory was done by David O. Hill, Ph.D., a Psychological Consultant. Dr. Hill found that plaintiff
retains sufficient MRFC for simple routine work. He will demonstrate some impairment in his ability to carry out detailed instructions because of forgetfulness and the need to establish a routine in carrying out instructions. His attention/concentration is also somewhat limited by the 3rd parties and self-report in the ADLs. However, there is evidence that his memory is basically intact and by his own report he can remember and carry out instructions that are written down. Information from the ADL as well as the observations of Dr. Barnett also suggest that while there is some impairment in his attention/concentration, and ability to remember, he is still capable of competitive employment as described here.
The ALJ properly resolved this conflict in the opinions, by giving greater weight to the opinions of those who specialize in the evaluation and treatment of mental disease, and who in fact examined Plaintiff specifically for mental disease or impairment. Moreover, the ALJ noted that Plaintiff's allegations of mental problems were not inconsistent with the conclusions of Dr. Barnett; Plaintiff testified at the hearing that he could concentrate "fairly well," and that he read for 30-minute periods without difficulty. The ALJ concluded that Plaintiff's ability to read for 30-minute periods demonstrated that he had a good ability to concentrate.
See Casias v. Secretary of HHS, 933 F.2d 799, 801 (10th Cir. 1991) (citing Richardson v. Perales, 402 U.S. 389, 399 (1971) (as the trier of fact, the ALJ has the duty to resolve conflicts in the medical evidence)); see also 20 C.F.R. § 404.1527(d)(5) (decision-maker should afford more deference to the opinion of a specialist than to the opinion of a source who is not a specialist).
Because Dr. Barnett noted that further testing "might be useful," Plaintiff further argues that the ALJ erred in relying on his opinion of no disability. It is not clear from Dr. Barnett's report whether he was firm or equivocal about further testing. If he was equivocal, then as Defendant argues, the ALJ did not err in failing to obtain additional testing.
20 C.F.R. § 404.1519a(b) (ALJ is required to order medical examinations and tests only if the medical records presented do not give sufficient medical evidence to determine whether plaintiff is disabled).
C. Opinion of Treating Physical Therapist
Plaintiff also argues that the ALJ erred in giving no weight to the opinions of Kevin Bird, the physical therapist who was treating Plaintiff. Under Defendant's regulations, physical therapists are not acceptable medical sources who can provide evidence to establish an impairment, but physical therapists are "other sources" who may provide evidence of the severity of impairment and how it affects the claimant's ability to work. As an "other source," physical therapists' opinions are entitled to less weight than the opinions of acceptable medical sources. Plaintiff cites to, Shontos v. Barnhart, which has since been withdrawn by the Eighth Circuit and superseded by an opinion holding that physical therapists are other sources, not acceptable medical sources under this rule.
See Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996)
322 F.3d 532 (8th Cir. 2003).
328 F.3d 418, 426 (8th Cir. 2003).
As an other source, the ALJ could give some weight to the opinions of Kevin Bird, but he chose to give them no weight, stating that Bird's medical source statements were mere checklists. The only additional comments offered on these checklists are that Plaintiff's ability to push or pull is limited "[d]ue to shoulders and upper extremities won't be able to do anything over 2-3 lb. pressure for 4-5 repetitions. . . .;" and "pain medication can impair safety judgement and reaction times." The ALJ further stated that the statements were unsupported by any objective medical or clinical findings by Bird. The Court agrees; the record includes no treating records of Bird. Thus, the ALJ properly accorded no weight to the opinions of the physical therapist, Kevin Bird.
V. Conclusion
Therefore, the Court finds that this action should be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to conduct further proceedings as follows:
Upon receiving the court's final order of remand, the Appeals Council of the Social Security Administration will remand this case and direct the ALJ to reassess the severity of Plaintiff s impairments, in accordance with the statute and regulations, including the evaluative procedure required for treating, examining and reviewing physician's opinions, and the evaluative procedure required for evaluating credibility and determining disability. The ALJ will further consider the records and opinion of Plaintiff s treating physicians, Drs. Letourneau, Gimple and Borchers, and the reviewing physician Dr. Stock well. The ALJ will give specific reasons for the weight given to his resultant findings. The ALJ will reassess his conclusions about Plaintiff's credibility and the severity of Plaintiff s impairments.IT IS THEREFORE ORDERED BY THE COURT THAT Defendant's decision denying plaintiff disability benefits is REVERSED AND REMANDED pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings in accordance with this Memorandum and Order.