Opinion
Civil No. 2:03 CV 0377 JTG
March 25, 2004
ORDER AND MEMORANDUM
PROCEDURAL HISTORY
Claimant, Christy Love, filed her first application for Supplemental Security Income (SSI) and Disability Insurance Benefits (DIB) on July 3, 1996 alleging an onset date of June 12, 1995. This application was denied on January 30, 1997. Love then filed a second application for SSI on September 21, 1999, and a second application for DIB on November 16, 1999. alleging an amended onset date of June 19, 1997. This second application for benefits was denied, initially and upon reconsideration, a timely request for a hearing was filed on July 31, 2000. A hearing was held in Salt Lake City on March 13, 2001 before an Administrative Law Judge (ALJ), who denied her claim on April 26, 2001. Love filed a timely request for review by the Appeals Council, and on February 21, 2003 the Commissioner of Social Security denied benefits. Love has exhausted administrative remedies, and filed suit in federal court pursuant to 42 U.S.C. § 405(g) and 13839(c)(3).
FACTUAL BACKGROUND
Claimant is a 44 year — old woman with a high school education and has previously worked as an office worker, customer service representative, salesperson, checker, cashier, waitress, assistant store manager, housekeeper, and telephone operator. Claimant's medical record begins with treatment that followed an automobile accident in August of 1983. Claimant continued working after recovering from this accident, until her work history became sporadic and inconsistent because of her medical conditions. Claimant alleges that her disability is due to muscle spasms, pain, fibromyalgia, bursitis, chronic fatigue syndrome, limited movement, trouble lifting, reaching, bending, standing, and depression.THE ALJ's OPINION
The ALJ used the five step process to determine whether a claimant is disabled pursuant to 20 C.F.R. § 416.920. At step one the ALJ found that claimant had not engaged in substantial gainful activity (SGA) since her onset date.
At steps two and three the ALJ found that claimant's medical evidence of fibromyalgia, chronic fatigue syndrome, and is status post left hip surgery, are severe impairments within the meaning of the Regulations, but not severe enough to meet or medically equal to one of the impairments listed in Appendix 1, Subpart P, Regulations No. 4.
At step three the ALJ reviewed claimant's medical record and found that claimant had a medical history reaching back to June 13, 1995, this supported his decision that the claimant had severe impairments, but not severe enough to be listed in the regulations. The ALJ found that one of the first medical records was in June 1995 when claimant underwent surgery to release the iliotoibial band of her left hip. (R. at 19). In July of 1996, claimant was diagnosed by Dr. Knorpp with chronic soft tissue pain syndrome, fibromyalgia, a history of depression, chronic smoking habit, and vocational dysfunction. (Id.). In a consultative examination on December 18, 1996, by Liz McGill, Ph.D. claimant was diagnosed with alcohol abuse, cannabis abuse, other unknown drug dependance, and personality disorder. (Id.). On May 19, 1997, Dr. Wilcox diagnosed claimant with chronic pain syndrome, psychiatric pathology, tobacco. abuse, and potential narcotic and muscle relaxor abuse. (Id.), The ALJ considered an office record from November 19, 1999, by Dr. Fujimura stating that claimant's fibromyalgia was well controlled and had left hip pain. (Id). In a psychological evaluation done by Louis F. Morse, Ph.D. on June 12, 2000, claimant was diagnosed with the same physical and abuse problems listed above, and obtained a GAP of 60. (R.at 20).
At step four the ALJ looked to more medical evidence to help determine the nature and severity of the impairments and resulting limitations. The ALJ also noted claimant's testimony from the hearing. In assessing the claimant's credibility, the ALJ found that "claimant's statements concerning her impairments and their impact on her ability to work are not entirely credible in light of the claimant's own description of her activities and life style, the degree of medical treatment required, the reports of the treating and examining practitioners, and the medical history, the findings made on examination, and the claimant's assertions concerning her ability to work." (R. at 21). The ALJ noted that claimant's psychological exam of June 12, 2000, did not show that she suffered from depression. The ALJ also noted that the medical evidence does show that she suffers from fibromyalgia, chronic fatigue syndrome, muscle pain, spasms, and bursitis. (Id.). At the conclusion of step four the ALJ found that claimant had the residual functional capacity to perform sedentary work which is diminished by significant nonexertional limitations because she would have about 2 hours of moderate impaired concentration and 6 hours of mild to moderate impaired concentration, also claimant would miss 24 days of work a year. (R. at 21-22). The ALJ adopted the opinion of the vocational expert that the claimant could not perform her past relevant work. (R. at 22).
The ALJ proceeded to step five where the burden shifts to the government to show that there is other work that exists in significant numbers in the national economy that claimant can perform. At this step the ALJ relied on the testimony of the vocational expert that given the claimants residual functional capacity, educational background and past relevant work, she was capable of performing the job of a call out operator, order clerk, and addresser, and therefore claimant was not disabled. (R. at 23).
STANDARD OF REVIEW
The Court's review of the decision is limited to determining whether the factual findings are supported by substantial evidence in the record viewed as a whole" and whether the correct legal standards were applied.Castellano v. Secretary of Health Human Services, 26 F.3d 1027, 1028 (10th Cir. 1994). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). The Court may consider the specific rules of law that the ALJ must follow in "`weighing particular types of evidence,' but [the Court] will not reweigh the evidence or substitute our judgment for the Commissioner's." Joyce v. Barnhart, 2004 WL 214478 (10th Cir. 2004).
ANALYSIS
1. The ALJ's credibility determination regarding claimant's testimony.
When evaluating the ALJ's determination about the claimant's credibility regarding disabling pain, there is a three — part framework to follow:
(1) Whether the Claimant established a pain — producing impairment by objective medical evidence; (2) if so, whether there is a Moose nexus' between the proven impairment and the Claimant's subjective allegations of pain; and (3) if so, whether considering all the evidence, both objective and subjective, Claimant's pain is in fact disabling.Joyce v. Barnhart, 2004 WL 214478 (10th Cir. 2004). In Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995), the court stated that "credibility determinations are peculiarly the province of the finder of fact, and we will not upset determinations when supported by substantial evidence." The ALJ should state specific reasons for doubting the claimant's credibility because "findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings."Id.
Claimant argues that the ALJ reached conclusions not supported by evidence in his decision about her credibility and the ALJ needed to find a lack of credibility in order to deny her claim. In the ALJ's opinion he does use a boilerplate statement about the claimant's credibility. However before making this statement, the ALJ considered medical records, cited to specific comments by claimant's doctors, and referred to claimant's testimony at the hearing.
The ALJ found that "claimant's statements concerning her impairments and their impact on her ability to work are not entirely credible in light of the claimant's own description of her activities and life style, the degree of medical treatment required, the reports of the treating and examining practitioners, and the medical history, the findings made on examination, and the claimant's assertions concerning her ability to work." (R. at 21).
The ALJ referred to Dr. McGill's opinion where she stated that she has "never been more impressed with someone trying to manipulate her presentation to obtain disability benefits." (R. at 300). Dr. Liu stated in February 1997, that claimant should have no prolonged sitting, standing, or walking (1 to 2 hours), with frequent rotation of activity and rest, also no excessive reaching, bending, or lifting more than 5 to 10 pounds. (Id.). The ALJ found that Pam VanCura, a vocational evaluator, noted that claimant was coping very well for dealing with a variety of extremely difficult issues and VanCura stated that claimant was strongly encouraged to apply for Social Security Disability Insurancebenefits.(Id). In March 2000, Dr. Fujimura stated that claimant has a greatly abnormal gait with no weight bearing on the left side, and claimant's ability to stand, lift and carry were greatly impaired because of her chronic hip dysmotility. (Id.). It was reported by Dr. Morse that claimant demonstrated normal social skills and was able to understand and follow simple instructions. (R. at 20-21).
The ALJ also took claimant's testimony into account when considering credibility. Claimant testified that she has constant pain over most of her body, a lot of numbness and tingling, and a lot of headaches. (R. 21). The ALJ found that claimant has a routine of exercises that she does everyday, such as stretching and walking. (Id.) The claimant testified that to relieve the pain she takes hot baths, meditates, and wraps her muscle spasms. (Id.) The claimant testified that she has to lie down 2 to 3 times a day for l/2 to 1 hour time periods. (Id.) Claimant claimed that she could stand for 20 minutes at a time and for 2 hours total during a period of 9 hours, she could walk for 1 to 2 hours total, and would need to lie down for 21/2 to 3 hours a day. (Id.). Claimant also stated that she has several bad days a week.(Id.).
The ALJ's opinion regarding the claimant's credibility is also supported by contradictions within the medical records. On May 19, 1997, claimant was assessed by Dr. Wilcox in a consultative examination, found during the physical examination that "patient focuses on pain throughout the examination and frequently makes conscious effort to reinforce verbally or by grimacing the degree of pain which she is experiencing. However, her physical motions observed over time and in different contextual situations do not reveal a consistent picture." (R. at 319-320). In an evaluation with Dr. Knorpp on July 29, 1996, the doctor noted that during her physical examination it was "reveling of an individual who attempts to afford this examiner the visual appearance that she either cannot or will not utilize the left upper extremity. However, she is inconsistent with this, often time utilizing the left upper extremity during the course of the interview and examination in a completely functional manner." (R. at 286). In a consultative examination by Liz McGill, Ph.D. on December 18, 1996, McGill stated that claimant drives and asserted that she can't do physical things anymore like cutting the lawn and shoveling snow, but did admit to doing household chores such as dishes, shopping, and cooking. (R. at 298). McGill stated that claimant seemed to be a "very adapted woman who would know how to manipulate to get assistance from others." (R. at 298-299).
It is clear that claimant does suffer from an amount of pain caused by the fibromyalgia, which is a consistent diagnosis throughout the medical record. However, from comments by examiners above, as well as a review of the medical record there are remarks that would support the ALJ's credibility conclusions. These credibility determinations by the ALJ are substantially related to the evidence presented, therefore this Court will not disturb the findings of the ALJ.
2. The ALJ's determination about claimant's ability to perform sedentary work.
When making decisions regarding the claimant's ability to perform sedentary work the ALJ looks at the medical records, the testimony from the vocational expert, and the claimant's testimony about her abilities. Here the ALJ reviewed all of these opinions to make his decision that the claimant would be able to do sedentary work. In Kelley v. Chater, 62 F.3d 335, 337-338 (10th Cir. 1995), the court found that the claimant could perform sedentary work after the claimant testified that he could not stand for more than thirty minutes or sit for more than forty minutes at a time. Also in Kelley the vocational expert testified that the claimant could perform several sedentary jobs. Id. Lastly, the court considered that "no physician had opined that Mr. Kelley is disabled, and, in fact, three physicians have opined that he retains the ability to perform at least some sedentary work." Id.
In the case at bar, the claimant testified that she could "stand for 20 minutes at one time, and for 2 hours total during a 9 — hour period of time. She could walk for 1 to 2 hours total and would need to lie down for 2 1/2 to 3 hours a day." (R. at 21). Before this statement however claimant testified that "she lies down about 2 to 3 times a day for 1/2 to 1 hour." (Id.). The vocational expert then testified about the claimant's ability to perform work. Dr. Kristy Farnsworth, the vocational expert, was given the following hypothetical:
Assume that the individual has the past experience listed . . . and any skill associated with those positions. This individual because of pain . . . would during a typical eight — hour work day have about six hours when she would have mild to moderate concentration, and about two hours of the work day when her concentration would be moderately impaired. This individual would have the capacity to sit for 30 minutes at one time for up to four hours in a typical workday, standing would be 20 to 30 minutes at one time, for up to two hours during the workday. During this time, the individual would need to do some stretching of the legs and shoulders . . . but this would be fairly inconspicious. This individual would be able to walk less then one hour, for a total of three hours during the work day. This individual would need to be able to lie down one hour at noon, and for 15 minute morning and afternoon scheduled breaks. Assume lifting would be about 10 pounds maximum.
(R. at 68-69). The ALT also had Farnsworth look at the test results for general aptitude, motor coordination, and other physical and mental test results. (R. at 69). Farnsworth, after looking at this information and considering the hypothetical, found that the "hypothetical individual would be able to perform some work in the unskilled, sedentary range." (R. at 70). Farnsworth then listed several jobs that could be performed in this work range, such as: a call out operator, an order clerk, and an addresser. (Id.). The vocational expert testified that all of these jobs had numerous jobs in the national economy.
The ALJ then adjusted the hypothetical in several ways in which the vocational expert concluded if the individual could only lift 7 1/2 pounds it would not impact any of the listed positions. (R. at 71). If the individual would miss up to 24 days of work per year, there would be no reduction or elimination of these positions. (Id.). If the individual need to lie down two hours during the work day instead of 1 1/2 hours, this would rule out the listed positions and all others. (Id). If the individual missed more than 24 days of work per year due to pain and numbness, this would eliminate the listed jobs and all others. (R. at 72). If the individual had additional concentration loss to cause 20% less productivity, then the jobs listed and other jobs would be eliminated. (Id.).
The medical record considered by the ALJ supports his determination that claimant would be able to perform sedentary work. Dr. Knorpp stated on July 29, 1996, that he "advised her that those individuals who do best are those who continue to function despite their perceived pain. To this end, [he] strongly encouraged her to once again resume her search for a job position in which she would feel comfortable and enjoy." (R. at 288). Liz McGill, Ph.D. opined on December 18, 1996, that the claimant "is a very capable woman who functions likely in the above average range of intelligence . . . There is no psychiatric reason why this woman shouldn't work. In fact, work would be beneficial for [claimant], as it would help her break her self — described `co. — dependent' behaviors and apparent addictive behaviors." (R. at 300). Dr. Sharon Strong stated in her records on September 16, 1996, that she and claimant "will want to have the common goal of getting her back to a job that will be helpful for her." (R. at 310). In this note by Dr. Strong claimant agreed to this goal. In Dr. Stephen Bekanich medical records for the claimant he states on October 26, 1998, that claimant had "asked [him] to sign a paper that says she cannot work due to her fibromyalgia more than 23 hours a week. [He] told her [he] would sign this, however she will follow up in 2 months after her new medical regimen, and will reassess this at this time. [He] encouraged her, but at this time [he] felt . . . that she would most likely be able to work a full week." (R. at 379).
From this record, the ALJ's opinion that the claimant could perform limited sedentary work is supported. The evidence provided through medical records, the vocational expert opinion, and claimants testimony were all considered by the ALJ in his opinion.
The ALJ's decision stated sufficient facts to support his finding that claimant's statements were not entirely credible and that claimant is able to perform limited sedentary work.
Based upon the foregoing reasons, it is hereby
ORDERED that the ALJ's decision is AFFIRMED.