Opinion
Cause No. IP99-1687-C-T/G
May 25, 2000
Entry Reviewing the Commissioner's Decision
Plaintiff, Glen D. Wade, seeks judicial review of the final decision of the Commissioner of Social Security denying his application for disability insurance benefits ("DIB") and for supplemental security income benefits ("SSI"), respectively, under Title II and XVI of the Social Security Act. Having reviewed the Commissioner's decision, the record and the parties' briefs the court decides as follows.
I. Background
Mr. Wade filed an application for DIB and SSI on March 13, 1997. His DIB and SSI applications were denied initially, and upon reconsideration. On February 18, 1997, Mr. Wade appeared with counsel for a hearing before an Administrative Law Judge ("ALJ"). The ALJ had before him the medical records and opinions from seven different doctors:
John Beghin, M.D., found normal ranges of motion and a normal gait with no abnormalities on the lower back x-rays and ordered "conservative" treatment with no work restrictions, though he found evidence of degenerative disc disease on the MRI he had requested. (R. at 129-30.)
Daria Schooler, M.D., a neurosurgeon, found decreased lower back ranges of motion but also a normal gait and neurological examination. She noted Mr. Wade's severe pain complaints around his sacrum, but all discs were normal in appearance. (R. at 133.) She reviewed his MRI and found degenerative disc disease with no nerve compression. (R. at 133.) Once again, only conservative treatment was recommended.
Darryl Kaelin, M.D., Mr. Wade's treating physician, found a normal gait and normal neurological evaluation. He diagnosed mechanical low back pain secondary to degenerative disc disease and superior iliac spine asymmetry. (R. at 151-52.) Only conservative treatment was recommended. Dr. Kaelin also noted evidence of mild displacement on the L3 nerve root on Mr. Wade's previous MRI. (R. at 168.) He recommended stronger medication and physical therapy. He found no signs of nerve root impingement. (R. at 177.) Upon performing a functional capacity evaluation, Dr. Kaelin found Mr. Wade could return to work with restrictions that would enable Mr. Wade to perform light work. (R. at 177.)
Ryan Nelson, M.D., diagnosed chronic neck and low back pain and recommended medication, but did not indicate any gait abnormalities or other limitations besides decreased lower back flexion. (R. at 183-84.)
Franklin Nash, M.D. examined Mr. Wade but he did not review Mr. Wade's medical records. (R. at 201.) He noted a slow gait, normal neck ranges of motion, normal neurological examination, and limited lower back ranges of motion. (R. at 204-05.) He diagnosed chronic sprain/strain of the neck and lower back, and opined a partial permanent impairment which equaled the "intent" of Listing 1.05(c). (R. at 205, 212.) Dr. Nash also opined that Mr. Wade could only perform sedentary work. (R. at 225.)
State reviewing physicians opined that Mr. Wade could do light work with occasional climbing, balancing, stooping, kneeling, crouching, and crawling. (R. at 108-115.)
Donald Blackwell, M.D., testified at the hearing that Mr. Wade had degenerative lumbar disc disease with no evidence of nerve root impingement. (R. at 36.) He opined that Mr. Wade did not meet or equal any listing based on the clinical findings of the treating and examining physicians because the record did not show any "neurologic abnormality in the lower extremities." (R. at 39.) Rather, he stated that Mr. Wade's extreme back pain was not explained by any medical findings. (R. at 37.) He opined that Mr. Wade could perform light work and agreed with Dr. Kaelin's assessment. (R. at 37.)
The superior iIliac joint is located at the "expansive superior portion of the hip bone." Dorland's Illustrated Medical Dictionary 142 (W.B. Saunders Co. ed., 28th ed. 1994). Here, the left posterior superior iliac spine sits about 1/2 to 1 inch higher than the right. (R. at 151.)
On April 23, 1998, the ALJ issued his written decision in which he found that, inter alia:
The claimant was insured on his alleged onset date and remains insured through at least the date of this decision.
The claimant did not perform substantial gainful activity after October 28, 1996.
The claimant has a severe impairment of degenerative disc disease which limits his ability to perform basic work-related activities.
The claimant does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
The claimant's allegations that his pain, functional limitations, and other symptoms are so severe as to prevent all competitive work are not entirely credible.
The claimant has the residual functional capacity to perform the full range of light work.
The claimant has past relevant work as a slitter machine operator.
The claimant is not able to perform his past relevant work.
The claimant is 51 years old and has been an individual closely approaching advanced age at all times since his alleged onset date.
The claimant has completed a high school education.
The claimant does not have any acquired work skills which are transferable to the skilled or semi-skilled work functions of other work.
Based on an exertional capacity for light work and the claimant's age, education, and work experience, 20 C.F.R. § 404.1569; 416.969 and Rule 202.14, Table 2, Appendix 2, Subpart P, Regulations No. 4 direct a conclusion of "not disabled."
The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision.
(R. at 16-17.) The ALJ therefore concluded that Mr. Wade was not entitled to DIB or SSI. (R. at 17.) Mr. Wade sought review by the Appeals Council, which review was denied. Therefore, the ALJ's decision became the final decision of the Commissioner.
II. Legal Standards
Entitlement to Social Security benefits is determined by the use of a five-step analysis set forth in the Social Security Regulations. See 20 C.F.R. § 404.1520 ("We consider all evidence in your case record during the 5-step evaluation process"). This analysis includes: (1) whether the claimant has been engaged in a substantial gainful activity within the last twelve months; (2) whether the claimant suffers from a "severe" impairment; (3) whether the impairment meets or equals any of the listed impairments in the federal regulations; (4) whether the claimant has the residual functional capacity ("RFC") to perform any past relevant work; and (5) whether the claimant is capable of performing other work existing in significant numbers in the national economy. See 20 C.F.R. § 404.1520 (outlining the five steps).
Judicial review of the Commissioner's final decision is limited. The proper inquiry is not whether the claimant is disabled, but whether the initial decision was supported by "substantial evidence." Brewer v. Chater, 103 F.3d 1384, 1389 (7th Cir. 1997). "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). To determine whether substantial evidence exists, the court reviews the record as a whole but does not substitute its judgment for the ALJ's "by reconsidering facts, reweighing evidence, resolving conflicts in evidence, or deciding questions of credibility." Brewer, 103 F.3d at 1390.
III. Analysis
Mr. Wade challenges the ALJ's decisions at steps 3 and 4, where the ALJ found that Mr. Wade did not meet or equal one of the listed impairments and that his RFC allowed him to perform light work. Mr. Wade contends that substantial evidence does not support these findings and that the ALJ failed to properly consider various factors such as his subjective testimony regarding the level of pain he was experiencing with the impairment, and Dr. Nash's report that light work would not be feasible given the chronic strain in Mr. Wade's lower back. The court disagrees.
A. Finding on Equivalency to Medical Listing 1.05(c)
Mr. Wade admits that he does not meet Listing 1.05(C), which required that he demonstrate:
Other vertebrogenic disorders (e.g., herniated nucleus puplosus, spinal stenosis) with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2:
1. Pain, muscle spasm, and significant limitation of motion in the spine; and
2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.20 C.F.R. Part 404, Subpart P, Appendix 1 § 1.05(C). However, Mr. Wade contends that his mechanical lower back pain equals the listing. Mr. Wade relies on his MRI, which showed "mild posterior displacement of exiting right L3 nerve root," and an excerpt from a Social Security Practice Guide. In addition, Mr. Wade relies on Dr. Nash's conclusion that "the severity of his combined impairments equals the intent of Medical Listing 105C." (R. at 212 (emphasis added).) With the establishment of this equivalency, Mr. Wade contends that he is automatically entitled to Social Security benefits by meeting a Listing.
Vertebrogenic is defined as "arising in the vertebra or in the vertebral column." Dorland's Illustrated Medical Dictionary 142 (W.B. Saunders Co. ed., 28th ed. 1994).
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.00(B) states that "Disorders of the spine, associated with vertebrogenic disorders as in 1.05C, result in impairment because of distortion of the bony and ligamentous architecture of the spine or impingement of a herniated nucleaus pulposus or bulging annulus of a nerve root." It then clarifies that "the specific findings listed in 1.05C represent the level required for that impairment." Id.
However, in order to meet or equal a listed impairment, Mr. Wade must prove that all the criteria of the listed impairment are satisfied. See Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir. 1999). Mr. Wade argues that he equals this listing because of his mechanical low back pain, which was observed by Dr. Kaelin. (R. at 177.) Mr. Wade looks to the Social Security Practice Guide as explanation of the relationship of mechanical low back pain and Listing 1.05(c). However, the Social Security Practice Guide carries no binding weight. See Lidy v. Sullivan, 745 F. Supp. 1411, 1421 (S.D.Ind. 1989) (Social Security Practice guide is "another treatise"). Moreover, the Social Security Practice Guide only states that a case of mechanical back pain creates the pain level that would satisfy the first prong required under § 1.05(c). However, complaints regarding mechanical back pain do not produce the evidence necessary to prove the other symptoms needed to demonstrate equivalency in severity with Listing 1.05(c). See 9 Social Security Practice Guide § 29.09[2] (1998). Rather, other evidence is needed to the presence of "muscle spasm, significant limitation of motion in the spine; and appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss." 20 C.F.R. Part 404, Subpart P, Appendix 1 § 1.05(C).
Since the medical evidence showed that Mr. Wade has no significant muscle weakness, reflex or sensory loss, no atrophy, and a normal gait, there is no equivalency. The MRI found the nerve root displacement to be only "mild" and upon review, Dr. Kaelin, Mr. Wade's treating physician, found no signs of nerve root impingement. Rather, since Mr. Wade did not demonstrate right-sided symptomatology that is usually associated with such a mild displacement, such as impact on mobility and pain in the right side, the presence of the displacement on the MRI was of uncertain significance. (R. at 131.)
Mr. Wade has failed to prove a lack of substantial evidence in support of the ALJ's decision. To qualify under 1.05(c), claimant must show: 1) he suffered from pain and muscle spasms and had significant limitations of motion in spine, and 2) there was appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss. Substantial evidence supports the ALJ's determination that Listing 1.05(c) had not been met or equaled because the second element (appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss) of the listing was absent. See Scott v. Sullivan, 898 F.2d 519, 523 (7th Cir. 1990) (claimant did not qualify under § 1.05(c) when there was no sensory or motor loss).
As far as the statement made by Dr. Nash asserting that the back impairment "equaled the intent of Listing 1.05(c)," he was the only physician to express this view. Neither Dr. Kaelin, the state reviewing physicians, nor Dr. Blackwell, the medical expert at the hearing (who took into account Dr. Nash's finding in forming his opinion), opined that Mr. Wade met or equaled any of the Listings. The ALJ acted within his discretion in discounting Dr. Nash's conclusion due to the fact that Dr. Nash was not a treating physician and he did not report physical findings which would support his opinion. (R. at 15.) As a result, the ALJ had substantial evidence to support his conclusion that Mr. Wade did not meet or equal a listed impairment.
As a physician, Dr. Nash was consulted to render a medical opinion regarding whether Mr. Wade has met and equaled one of the Listings. The rendering of a legal opinion regarding the "intent" of Listing 1.05(c) exceeds Dr. Nash's medical position. If Dr. Nash has opined that Mr. Wade has met Listing 1.05(c), review of this determination as compared to the opinions of the other physicians is within the province of the ALJ.
B. RFC
Since Mr. Wade failed to demonstrate that he met a specific Listing, the ALJ determined the type of work Mr. Wade could perform. The ALJ agreed with the Vocational Expert that Mr. Wade is unable to perform his previous job due to his inability to meet the lifting and carrying requirements. (R. at 15.) When the ALJ decided what other possible jobs that Mr. Wade would be able to perform, a determination was made as to Mr. Wade's RFC. This determination required the ALJ to consider a combination of both medical evidence as well as other evidence in the record. See 20 C.F.R. § 404.1529(c) ("In evaluating the intensity and persistence of your symptoms, we consider all of the available evidence"), 404.1545 (subjective descriptions and medical observations must be considered along with medical records to decide the extent the impairment prevents performance of particular work activities). Objective medical evidence includes medical signs and laboratory findings, and "other evidence" includes such things as claimant's statements, treating physician statements, treating and examination history, diagnosis, prescribed treatment, daily activities, efforts to work, and other factors related to claimant's ability to work. See 20 C.F.R. § 416.929 (consider all symptoms consistent with objective medical evidence and other evidence).
Mr. Wade contends that since the burden is on the Commissioner to prove Mr. Wade's RFC encompasses light work, the burden has not been met due to the MRI showing "mild posterior displacement of existing right L3 nerve root in an extraforaminal location." (R. at 131.) The presence of this scan, combined with Dr. Nash's statement that only sedentary work is possible, created the necessary objective medical evidence, according to Mr. Wade.
If Mr. Wade could perform only sedentary work, then he would have been disabled under the regulations due to his age, education and lack of transferable skills. See 20 C.F.R. pt. 404, App. 2, subpart p.
However, as discussed more fully below, substantial evidence supports the ALJ's finding that Mr. Wade could perform the full range of light work. Clinical evidence provides support since Mr. Wade consistently had a normal neurological examination, a normal gait, and a lack of severe symptoms. (R. at 129, 132-33, 151, 167, 177, 204-05.) There was no sign of nerve root impingement or compression. (R. at 33, 133, 177.) Furthermore, any self-reports made by Mr. Wade attesting to the pain he is experiencing are not determinative. See Diaz v. Chater, 55 F.3d 300, 307-08 (7th Cir. 1995) (ALJ may consider self-evaluations less significant than doctor findings).
Though objective medical evidence is preferred when determining Mr. Wade's RFC, the ALJ should consider "other evidence." See 20 C.F.R. § 416.929 (will not reject statements about the intensity and persistence of pain or other symptoms solely because the available objective medical evidence does not substantiate them). As a result, even if there is no diagnostic test or imagery that points to the impairment, the ALJ can rely on medical opinions, diagnoses, treatment regimens, and Claimant's subjective assertions of pain when determining the appropriate RFC.
Due to the fact that credibility of a witness is a factual finding, the ALJ's decision will only be disturbed if it "is patently wrong in view of the cold record." Pope v. Shalala, 998 F.2d 473, 485-86 (7th Cir. 1989). Credibility determinations are reserved for the trier of fact since they can best observe witnesses. See Zalewski v. Heckler, 760 F.2d 160, 165-67 (7th Cir. 1985) (ALJ must offer a minimal articulation of his assessment). When evaluating the credibility of Claimant's subjective complaints, the ALJ considers such factors as daily activities; location, duration, and intensity of pain or other symptoms; type, dosage, effectiveness and side effects of any medication taken to alleviate pain or other symptoms; measures used to alleviate pain; and other factors concerning functional limitations and restrictions due to pain or other symptoms. See 20 C.F.R. § 404.1529(c) ("when evaluating your symptoms, we consider all of the available evidence"); see also Pope, 998 F.2d at 485-86 (ALJ should evaluate all the evidence before dismissing an applicant's subjective complaints of pain, even when the objective evidence does not support the intensity of pain alleged).
The ALJ should "consider all [claimant's] symptoms, including pain, and the extent to which [claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence." 20 C.F.R. § 416.929. Medical findings and laboratory results must show "a medical impairment which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all of the other evidence, would lead to a conclusion [of a disability]." Id. While a hearing officer may not reject subjective complaints of pain solely because they are not fully supported by medical testimony, "the officer may consider that as probative of the claimant's credibility." Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000).
This case is very similar to Anderson v. Bowen, 868 F.2d 921 (7th Cir. 1989), where the court affirmed the ALJ's RFC finding of light work because the only evidence of an inability to do light work came from self-supporting statements made by the claimant. In Anderson, the two available physician reports suggested no evidence of a disability that would prevent the claimant from performing light work. See id. at 923. The evidence the claimant relied on to contend that light work was not possible was not supported by the clinical findings in the record. As a result, due to the ambiguity of the evidence the claimant relied on and the lack of clinical support, the court refused to reverse the ALJ's decision, finding support in the substantial medical evidence provided by the physicians. See id. at 925. In the present case, the examinations and the reports of numerous physicians constitute substantial evidence that Mr. Wade could perform light work. The only conflicting report comes from Dr. Nash; but as the ALJ found, "Dr. Nash did not report physical findings which would support his opinion." (R. at 15.) Thus, as in Anderson, Mr. Wade cannot overturn the ALJ's determination that he was not disabled simply based on his subjective assertions of pain when there is no other supporting evidence.
Mr. Wade contends that under Scivally v. Sullivan, 966 F.2d 1070 (7th Cir. 1992), the ALJ should have given greater weight to his claims of back pain when determining the RFC, and by failing to do so, the ALJ's finding was improper. However, under Scivally, pain is only considered "if supported by medical signs and findings." Id. at 1077. It is necessary to demonstrate a medical condition that would produce the alleged pain or symptoms. Unlike here, in Scivally, every doctor in the record supported the claimant's inability to perform light work, thus providing ample evidentiary support for the claims of pain. In Scivally, the ALJ substituted his own medical judgment for that of the unanimous physicians. However, in the present case, the ALJ did not rely on his own medical opinion. Rather, with the exception of Dr. Nash, a consultative physician, all physicians agreed on Mr. Wade's ability to perform light work.
Also in Scivally, the court found that the ALJ's determination that the claimant's allegations of pain were inconsistent with the clinical signs and findings was improper due to the ALJ's unsupported rejection of the medical evidence. See id. Therefore, the ALJ's dismissal of claimant's allegations of pain as unsupported were equally unsustainable. See id. at 1078. However, in the present case, since the ALJ did not improperly substitute his medical opinion for that of the physicians, his determination that Mr. Wade's pain allegations were unreliable was supported by the substantial evidence provided by the physicians.
The ALJ acted within his discretion in finding that the inconsistencies between Mr. Wade's testimony and other record evidence showed that Mr. Wade was not fully credible. See Anderson, 868 F.2d at 927. At the hearing on February 18, 1998, Mr. Wade testified that he could not do the bending, lifting or standing necessary for yard and house work. (R. at 71.) However, in January 1997, Mr. Wade reported no restrictions on these abilities as long as he paced himself, and in May 1997, he stated he could do light household chores. (R. at 162, 120.) Though he reported significant pain, upon assessment, Mr. Wade moved about without significant deviations or complaints. (R. at 167.) In addition, one physical therapist even noted that Mr. Wade seemed "pain focused," (R. at 163), and demonstrated "inconsistent pain behaviors." (R. at 171.)
The ALJ's disbelief regarding Mr. Wade's pain descriptions was supported by substantial evidence given the physician's reports and Mr. Wade's inconsistent statements, as well as the view of the physical therapist that Mr. Wade demonstrated "inconsistent pain behaviors." (R. at 171.) See Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999) (ALJ's credibility determination is the sort of determination that is entitled to particular deference as it "involves intangible and unarticulable elements which impress the ALJ that are not discernible from a transcript").
Mr. Wade relies on Dr. Nash's finding of functional loss of motion with marked pain intensity to support his disability claim. However, when he rejected Dr. Nash's medical opinion, the ALJ applied the criteria that the regulations require to weigh the value of a physician's opinion: (1) the nature and extent of the treatment relationship, (R. at 15); (2) the degree to which the medical signs and laboratory findings support the opinion, (R. at 15); (3) the degree to which the opinion takes into account all of the pertinent evidence in the record, (R. 13-15); (4) the persuasiveness of the opinion rendered, (R. at 15); (5) the consistency of the opinion with the record as a whole, (R. 13-15); and (6) the specialization of the physician, (R. at 15). See 20 C.F.R. § 404.1527(d) ("We consider all of the following factors in deciding the weight we give to any medical opinion."), 416.927(d) ("Regardless of its source, we will evaluate every medical opinion we receive.").
Based on the same minimal clinical findings relied upon by Dr. Nash and a review of Mr. Wade's MRI, Drs. Beghin, Schooler, Nelson, and Kaelin either placed no physical limitations on Plaintiff or only limited him to light work. (R. at 108-15, 129, 130, 133, 177, 186.) After reviewing this full record of medical opinions, Dr. Nash's was the only one contradicting light work restrictions. Given this balance, and the fact that even the treating physician supported light work, substantial evidence supports the ALJ's conclusion that Mr. Wade's RFC was light work.
In addition, when determining the proper RFC, and more specifically what weight to give Mr. Wade's pain allegations, the ALJ acted within his discretion when he looked to other facts such as Mr. Wade's use of over-the-counter medications, and his lack of visits to the doctor for treatment. As the ALJ pointed out, though Mr. Wade said he could not afford these things, that assertion is inconsistent with the number of physician visits he made to obtain opinions and examinations. (R. at 15.) Mr. Wade's lack of attempts to seek prescription medicines and treatment to alleviate the pain can reasonably be said to detract from the claim of debilitating pain.
Moreover, the lack of a need for surgery and the conservative treatment ordered by the various physicians supports the ALJ's decision. No physician felt surgery was warranted. Drs. Kaelin and Schooler both ordered physical therapy and medication. Another doctor ordered a steroid injection. All these approaches were conservative, which undermined the idea that a disability existed that prevented work performance. See Caldarulo v. Bowen, 857 F.2d 410, 413 (7th Cir. 1988) (non-aggressive treatment course inconsistent with allegations of severe disability).
Given the diagnosis of the different doctors, the medical test results, and treatments ordered, there was substantial evidence to support the ALJ's conclusion that Mr. Wade's RFC permits light work.
IV. Conclusion
The ALJ applied the proper analytical methodology in reaching his conclusions. The ALJ's discussion of the evidence as a whole leaves no doubt that (1) the ALJ considered the important evidence, Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993), (2) the ALJ's assessment of the evidence supports the conclusion reached, Groves v. Apfel, 148 F.3d 809 (7th Cir. 1998), and (3) there was substantial evidence to support the determination that Mr. Wade was not disabled as defined in the Social Security Act. The ALJ's determination that Mr. Wade could perform work-related activities with certain exertional limitations was amply supported by the medical evidence.
Because substantial evidence supports the Commissioner's decision that Mr. Wade is unable to perform his past work as a slitter machine operator but has a RFC that would allow him to perform a significant number of light duty jobs in the economy, the Commissioner's decision is AFFIRMED.
ALL OF WHICH IS ORDERED.
JUDGMENT
In accordance with 42 U.S.C. § 405(g), the decision of the Commissioner is hereby AFFIRMED and JUDGMENT is hereby entered in favor of the Defendant, Kenneth S. Apfel, and against the Plaintiff, Glen D. Wade.
ALL OF WHICH IS ORDERED.