Opinion
CIV 02-1025 KBM.
June 20, 2003.
MEMORANDUM OPINION AND ORDER
Plaintiff Buddy Williams worked as a welder and crane operator until July 1998, when he stopped working at age forty-three because the plant he worked for shut down. He applied for disability benefits in October 1998. Williams alleges that he became disabled when the plant closed down due to diabetes-related symptoms and depression. Plaintiff applied for benefits when he lived in Texas and all of the proceedings occurred there, but his claim was transferred to New Mexico by the Appeals Council. E.g., Administrative Record (" Record") at 9, 46, 65-66, 113, 128, 132, 134.
Finding Plaintiff's allegations of limitation not entirely credible and, with the assistance of a vocational expert, Administrative Law Judge ("ALJ") Bruce L. Evans concluded that Plaintiff has the residual functional capacity to perform a "full range of sedentary, unskilled work," id. at 50, and was not disabled at Step 5 pursuant to Medical-Vocational Rule 201.21, id. at 51. The Appeals Council declined review in July 2002, thereby rendering the ALJ's decision final. Id. at 4-5.
This matter is before the Court on Plaintiff's Motion to Reverse or Remand, where he asserts that the ALJ committed at least four errors. See Docs. 13, 14. Pursuant to 28 U.S.C. § 636(c) and FED. R. CIV. P. 73(b), the parties have consented to have me serve as the presiding judge and enter final judgment. The entire record has been read and carefully considered. I find that Plaintiff's motion should be denied and the decision of the Commissioner affirmed.
I. Standard Of Review
This case originated in Texas, in the Fifth Circuit. Both parties base their arguments on Tenth Circuit law. I have found no authority that requires I consider Fifth circuit law as binding for the purposes of my analysis. Accordingly, I too apply Tenth Circuit precedent.
If substantial evidence supports the ALJ's findings and the correct legal standards were applied, the Commissioner's decision stands and Plaintiff is not entitled to relief. E.g., Hamilton v. Sec'y of Health Human Servs., 961 F.2d 1495, 1497-1500 (10th Cir. 1992). My assessment is based on a review of the entire record, where I can neither reweigh the evidence nor substitute my judgment for that of the agency. E.g., Casias v. Sec'y of Health Human Servs., 933 F.2d Servs., 26 F.3d 1027, 1028 (11th Cir. 1994) (internal quotations and citations omitted). "Evidence is insubstantial if it is overwhelmingly contradicted by other evidence." O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994) (citation omitted).
II. Factual Background A. Plaintiff Asserts That He Is Unable To Perform Any Sort Of Work
Plaintiff asserts that by July 1998, or three years after the diagnosis of diabetes, his symptoms became so bad that he could continue to work only through the grace of his employer. Williams maintains that during this time his diabetes caused his eyesight to worsen and caused fluctuations in blood sugar. These fluctuations, in turn, resulted in mood swings and a lack of concentration and coordination. Record at 68. He contends that despite his worsening condition, his employer allowed Plaintiff to miss work and evidently allowed him to switch his position from welder to crane operator. See id. at 68-70, 128, 178.
I note that Plaintiff's earning statement does not appear to support this contention. Plaintiff's earnings did decrease slightly from 1994 to 1995. However they continually increased in 1996 and 1997. The decrease in 1998 is reflective of the fact that Plaintiff only worked part of the year. See Record at 118.
In his applications and testimony, and letters from his representative, Plaintiff also describes a deteriorating condition that he contends rendered him incapable of any type of work in a "structured environment" from July 1998 forward. See e.g., id. at 141, 178. He asserts that because of the diabetes: he is constantly and severely fatigued; his arms, chest, and legs tingle; he suffers from constant severe pain in his legs and feet and, therefore, cannot sit for long periods; his eyes burn and hurt and have lost vision capacity; he suffers from severe headaches and loss of memory and the ability to concentrate; and he is constantly "severely" depressed. See id. at 102, 103, 128, 140, 146, 152; 171-73, 178-82.
Plaintiff attributes a number of his symptoms to an inability to regulate his blood sugar and physical exertion. Id. at 152; see also id. at 172 ("severe fluctuation in sugar levels will cause nervousness, irritability, extreme mood swings, these symptoms tend to cause a lot of fear, Buddy becomes severely depressed."); but see id. at 153 (medicine "helps to level out sugars but length of time varies"). The headaches, however, are caused by his poor vision when he reads for too long a period. Id. at 154, 162, 173. Plaintiff also complained of gaining thirty pounds "since becoming insulin dependent," id. at 154, but that was after he lost a great deal of weight upon being diagnosed with diabetes, see id. at 69.
Plaintiff complains of trouble sleeping through the night because his "kidneys" wake him "constantly" and he generally has to urinate frequently. Id. at 158, 172. He claims that "almost anything" upsets him and with his family he has extreme mood swings, his temper flares and he argues. But, his submissions are somewhat inconsistent on this point. In one submission, he asserts that he becomes aggravated, frustrated and confused if his daily routine changes or he is stressed or someone criticizes him. See id. at 144, 145, 156-57. In yet another, Plaintiff maintains that most changes in daily routine "don't affect [him] much," id. at 156, and when someone criticizes or tells him what to do "it doesn't really bother [him]," id. at 157.
Plaintiff subsequently divorced.
Except for one notation that he frequently needs help buttoning his shirts, id. at 148, uniformly Plaintiff asserted that he has no trouble performing his personal needs, see id. at 153, 159, 155-56 (specifically bathing, brushing teeth, fixing hair, shaving, selecting appropriate clothing, cooking, paying bills, visiting, shopping/making change, riding the bus, taking care of children). He cooks breakfast and does some light house cleaning (such as washing dishes and laundry), walks 45 minutes daily, watches television, listens to the radio, and does light yardwork (mowing the lawn, caring for a cow). Although Williams can drive, he rarely does so because sitting for long periods hurts him and because he is prone to road rage. He has no recreational activities and no social contacts whatsoever. He no longer hunts or fishes is because he has "no patience" and is "afraid to be alone in the woods or on lake or river." Id. at 72-73, 77-78 131, 153, 158, 161, 163, 167, 173, 180.
B. Treating Physician For Diabetes (Dorfman) Is Of Opinion Plaintiff Can Work
The circumstances under which Plaintiff was diagnosed with diabetes are not entirely clear from the record. Evidently he visited the Internal Medicine Center in Paris, Texas, at some unspecified date, complaining of wheezing and asthma symptoms. Dr. Gordon B. Strom is associated with that clinic and believes Plaintiff was diagnosed with diabetes at that time. However, Dr. Steven Dorfmnan, who is associated with the Endocrine Associates of Dallas, actually rendered the medical care for Plaintiff's diabetic condition. See id. at 191, 258.
Dr. Dorfman's records begin as of January 1996. From 1996 to July 1998, Plaintiff's diabetes was "well" to "reasonably" controlled on oral medication, even when Plaintiff took the medication improperly. He was maintaining the weight he gained back after an initial drop when the diabetes was diagnosed. None of Dr. Dorfman's records or labwork mention the problems and/or limitations that Plaintiff asserts. See id. at 185-223, 234-37. Neither do the records of his other treating physician at the time. See id. at 224-25.
See Record at 192 (1/10/96 — weight 169 pounds in boots; "By some interpretation error on his part, instead of taking the metformin 500 mg b.i.d as well as the Glucotrol, he stopped the Glucotrol. Yet, his sugars look quite perfect"); id. at 190 (4/3/96 — weight not noted; Plaintiff's "fasting sugars are a little too high" so medication increased); id. at 188 (9/18/96 — weight not noted; Plaintiff "clinically seems to be doing well with his sugars. His diabetes is under very good control."); id. (2/26/97 — weight 164 pounds; Plaintiff's "diabetes sounds like it is well controlled. . . . Since he is a welder, we do not want to keep his diabetes over tightly controlled since this would be some potential risk if he had a hypo-glycemic reaction at work because he is working with somewhat dangerous equipment."); id. at 187 (5/22/97 — weight 163 pounds; Plaintiff "seems to be doing quite well. He has only been taking his Glucotrol XL once a day and his Glucophage two tablets twice a day. We will see if he needs to increase the Glucotrol to twice a day [notation `yes']. Sugars sound reasonable however, with diet and exercise and the above medications."); id. at 186 (8/20/97 — weight 162 pounds; something is "apparently much more tightly controlled at home now and it probably exists that this is the right dose of medication for him. However, we will see if we can back off anyway on his medication depending upon his sugars and hemoglobin"); id. (12/4/97 — weight 164 pounds; same medications in same dosage); id. at 185 (3/4/98 — weight 164 pounds; on "maximal doses" of oral medication for diabetes, Plaintiff's blood sugars are "reasonably controlled"); id. at 185, 237 (4/2/98 — weight 161 pounds; same medications in same dosage "with pretty reasonable control of his sugars. I am really expecting his glyco hemoglobin to be much better. . . . I suppose he has lost weight from 164 to 161 pounds; not so much from his sugar standpoint, but probably just from being stressed and not eating well and being anxious [due to impending shut down of plant]"); id. at 237 (7/1/98 — weight not noted; "Buddy Williams' sugars sound reasonable.").
To the contrary, in the first half of 1996, Plaintiff asked Dr. Dorfman to inform his employer that he had diabetes, evidently because he was trying to persuade his employer to move him to the day shift. Dr. Dorfman, however, was of the opinion that Plaintiff's diabetes was not a "medically necessary" reason to justify the switch in shifts and Plaintiff became "resigned" to remaining on the night shift. Several months before the plant closed, Plaintiff became worried about finding another job and Dr. Dorfmnan prescribed sleeping pills. Although Plaintiff was concerned that he would have "a lot of difficulty" finding another job, id. at 185, Dr. Dorfmnan was of the opinion that "as long as [Plaintiff's] diabetes is reasonably controlled . . . he will be able to work," id. at 237.
See Record at 190 (5/6/96 — "Pt's wife called — wants note fax to [telephone number] Babcock Wilcox Co. saying husband had diabetes. Faxed per Dr. Dorfman."); id. at 191 (copy of the fax on Dorfman letterhead/prescription pad dated 5/6/96 stating only "Buddy Williams . . . Patient has diabetes mellitus."); id. at 189 (7/30/96 — Dr. Dorfman "[r]eceived call from pt's employer, Boyd Rosser to inform us that in order for the pt to be transferred to the day shift, he must have a letter stating it is a `medical necessity.' Place of employment is unionized pt does not have the seniority to be transferred unless it is a medical necessity. Attempted to call pt to inform him working the day shift is not considered a medical necessity per Dr. Dorfman's orders. No answer. Will attempt to contact pt tomorrow.") (emphasis original); id. (7/31/96 — Dr. Dorfman's office "Spoke [with] pt's wife. She states she and pt understand Dr. Dorfman has done all he can to help pt get onto day shift. Pt. resigned to working 2nd shift.").
After two years of reasonable control of his blood sugars, by September 1998, Plaintiff's control of his blood sugar was worsening and he was unable to find work. Dr. Dorfmnan discontinued the oral medication and prescribed insulin shots instead. On October 1, 1998, Plaintiff filed his application for benefits. Id. at 113. Dr. Dorfinan continued to see Plaintiff through the end of 1998, during which time Plaintiff was gaining weight and Dr. Dorfinan was adjusting Plaintiff's insulin regimen to deal with hypoglycemic reactions.
Record at 236 (9/16/98 — weight 172 pounds; "Buddy Williams seems to be slowly progressing to needing insulin in the sense that his nocturia is increasing to three to four times a night. His sugars are running about 200 at all times. His last glyco hemoglobin was 8.1% and three to six months was 7.2%. His progression is clearly to failing on oral agents."); id. at 235 (9/30/98 — "Pt. sugars still too high PM. Pt states vision fuzzy. Pt. to take 15 units AM 12 PM call or fax if blood sugars do not come down to normal. Pt. taking shots okay. Pt needs supplies called in. Pt. was traveling eating on the road. Pt. states he was unable to find a job. Pt. stopped taking the Restoril, he didn't want to get addicted.").
Record at 235 (10/15/98 — weight 178 pounds though Plaintiff walks daily; "His sugars are under much better control although is fasting sugars could be a little bit better controlled. We will go up to 15 and 13 from 15 and 12 and see him back in six weeks or so. We will do a hemoglobin Alc at that time. We would like to keep his hemoglobin Alc around the 7% range which I think would be reasonable in this setting. I am confident, looking at his sugars, that we certainly are accomplishing that, which is about a mean sugar of 150. He is going to record his sugars a little more compulsively before lunch and bedtime so that we can get all those four readings at least for the week that he comes to see me."); id. at 234 (10/27/98 — "Pt changing insurance. Pt. insulin dose [medical symbol? or strike-out?] splits. Pt. sugars going to low in the afternoon. Pt. demonstrated how to mix dose. Pt instructed on peaks of insulin PE to fax blood sugars in 2-3 days. Pt. will have new insurance in 3 months. Pt. to call for appt. then."); id. (12/23/98 — weight 195 pounds; "Buddy Williams is having some hypoglycemic reactions during the day, particularly at lunchtime. Also, having some hypoglycemia early in the evening, sometimes at bedtime or 2:00 o'clock in the morning. . . . We are going to move his NPH from dinnertime to bedtime and lower his NPH and sliding scale in the morning; lower his NPH from 10 to 9 and lower his sliding scale 1 to 2 units in the morning and see if this corrects the problem. If we need to we will even lower his sliding scale another unit each time in the morning. He has gained a lot of weight and I think part of this is probably eating to avoid hypoglycemia.").
The record does not show that Dr. Dorfinan or any other physician treated Plaintiff for diabetes after December 1998. The record does not show that Plaintiff received any medical care for his depression at any time. Rather, the only other records are those of examining and/or consulting physicians, who evaluated Plaintiff in early 1999, after the initial denial of benefits on November 19, 1998. See id. at 88, 226-33 (initial denial).
C. Examining Consulting Psychiatrist For Mental Impairment (Lee) Is Of The Opinion Plaintiff Could Not Work At Time Of Examination But Could Respond To TherapyDoctor Paul M. Lee performed the first examination. His report is not written on letterhead, nor does his resume appear in the record, so Dr. Lee's specialty is unclear. Plaintiff refers to him as a psychiatrist, see Doc. 14 at 6, and Defendant does not dispute the assertion, so I will assume he is a psychiatrist. Dr. Lee noted that Plaintiff's "chief complaint" was that he was "`having problems with [his] memory'" and characterized Plaintiff's diabetes as "quite brittle . . . 200 to 300 on his blood sugar range." Id. at 254. Dr. Lee's mental status examination revealed that Plaintiff "was clearly psychomotor retarded," with his cognition and thought processes "sluggish" and poor math and spelling skills, but he performed "quite well" on construction tasks, reading, and following instructions. Id. at 255.
Dr. Lee's report concludes that as of January 1999, Plaintiff was suffering from depression, id. at 255, and although he can care for himself, id. at 255-56, he
has a very limited capacity for coping with stressors. He does not appear to be able to handle the stress of a work situation at this point. Concentration is very limited due to his severe depression. Deterioration has been marked given [h]is level of function some years back.Id. at 256. He diagnosed Plaintiff with "[m]ajor depressive disorder single episode severe with associated pseudodementia," "[g]eneralized anxiety disorder," and was of the opinion that Plaintiff's "[u]nemployment, chronic medical illness, social isolation" were severe, thus resulting in a global assessment of functioning or "GAF" of 50. Dr. Lee issued a "guarded prognosis," saying that
"The GAF rates the client's "psychological, social, and occupational functioning. . . ." See American Psychiatric Assoc., Diagnostic and Statistical Manual of Mental Disorders at 30 (4th ed. 1994). Of particular note, "[t]he GAF is not an absolute determiner of ability to work." Stalvey v. Apfel, 242 F.3d 390 at *2 (10th Cir. 1999) (unpublished) (emphasis added).
It is encouraging that [Plaintiff] has not received any psychiatric treatment. Thus it would be difficult to determine what type of response he might have to that treatment. If this dementia should prove to be related to another condition other than his depression, it might alter his prognosis significantly and provide for a much worse long term prognosis. If this indeed does represent a pseudodementia secondary to major depression, which I suspect it does, there are any number of a wide range of therapeutic interventions that can be performed with varying levels of prognosis. At any rate at this point, currently, the patient could not tolerate the stress of work.Id. at 257.
Dr. Lee's report refers to a completed "Form TRC-886," id. at 257, which does not appear in the record. Instead, nonexamining consulting physician Dr. Lyman G. Phillips executed "Psychiatric Review Technique ("PRT") and "Mental Residual Functional Capacity Assessment" ("RFC") forms. Based on the major depression and anxiety disorders diagnosed by Dr. Lee, see id. at 275, Dr. Phillips concluded that Plaintiff: has "slight" limitations in social functioning; is "often" limited in concentration/persistence/pace, id. at 271; and is "moderately limited" in his ability to remember locations and work-like procedures, to understand, remember, and carry out detailed instructions, to maintain attention and concentration for extended periods, to complete normal work day or week without interruptions and at a consistent pace, to accept instructions and respond appropriately to criticism form supervisors, and to respond appropriately to changes in a workplace setting, id. at 273-74. Otherwise, Dr. Phillips found Plaintiff not significantly limited in any other category. Id. The "functional capacity assessment" notes that Plaintiff has no history of psychiatric treatment and "shows mild impairment of concentration. Alleged limitations are not totally supported by evidence in file." Id. at 275.
D. Examining Consulting Physician For Physical Impairment (Strom) Is Of Opinion Plaintiff Can Do Sedentary Work
Dr. Strom, who did not treat Plaintiff for diabetes, also performed a consultative examination of Plaintiff and did so in February 1999. His findings are consistent with a conclusion that Plaintiff can do sedentary work with glasses:
[Plaintiff] does not have any significant inability to sit, stand, move about or carry objects. . . . He could fully move both hands. He did not have evidence of gross dysfunction or loss of dextrous movements. He could ambulate without the use of assistive devices. His vision is poor without glasses and there was no evidence of venous insufficiently noted.Id. at 260. Dr. Strom's recommendation states that Plaintiff "has a major complaint, depression, which I suspect is a significant portion of his disability. He lists problems with his legs and eyes and there is really not significant deficit present. I am concerned that this patient is significantly depressed as an etiology for the majority of his symptoms and would benefit from aggressive management of his depression." Id. at 261 (emphasis added).
Nonexamining consulting physician Dr. William O. Cleland executed a "Physical Residual Functional Capacity Assessment" form and concluded Plaintiff can occasionally lift 50 pounds, frequently lift 25 pounds, stand and/or walk (with normal breaks) for a total of 6 hours in an 8-hour workday, sit about 6 hours in an 8-hour workday, and has unlimited push/pull capacity. Id. at 278. He noted also that the "alleged limitations caused by the claimants symptoms are not (or are not fully) supported by the medical and other evidence." Id. at 282.
E. Post-Reconsideration Denial Developments
In March, 1999, the Administration denied Plaintiff's request for reconsideration of the initial denial of benefits. Id. at 89. In July 1999, Plaintiff had Dr. Strom fill out what look to be xeroxed portions of old or different forms that mirror some of the areas of inquiry on the PRT and RFC forms for mental impairments. On the PRT-type "form," Dr. Strom reached some of the same conclusions as Dr. Phillips. That is, Dr. Strom was of the opinion that Plaintiff has moderate limitations in: ability to understand/remember/carry out detailed instructions, and in working with others without being distracted. Id. at 290. In contrast to Dr. Phillips, Dr. Strom concluded Plaintiff also has moderate limitations in daily living and social functioning and has had "repeated" episodes of deterioration or decompensation in the work setting. Id. at 289.
Nevertheless, Dr. Strom's conclusions on his RFC-type "form" are consistent with the ability of Plaintiff to perform unskilled work. For example, he found that Plaintiff is "not significantly limited" in his ability to "understand, and remember very short and simple instructions," "maintain attention and concentration for extended periods," perform on a schedule with regular attendance and punctuality, "sustain an ordinary routine without special supervision," or "make simple work-related decisions." Id. at 290. He found "no evidence of limitation" in Plaintiff's ability to `remember locations an work-like procedures" or "carry out very short and simple instructions." Id.
In October 1999, Plaintiff underwent cataract surgery, which helped his vision. Id. at 29195. In November, Dr. Strom sent a letter to Plaintiff noting that prior tests showed elevated cholesterol levels and furnished Plaintiff with a prescription for Zocor. Id. at 296-97.
III. Analysis A. Credibility Related Issues
Plaintiff alleges that AL Evans erred in assessing his credibility and failed to give proper weight to certain medical evidence. These issues are interrelated, almost inextricably so, and I thus consider them together. As discussed in the next three sections, ALJ Evans applied the correct legal standards. Moreover, his credibility determination is based on substantial evidence.
(1) Prior Work History Is Not Conclusive Of Credibility
After considering the medical evidence of record, ALJ Evans began his discussion of credibility by citing the factors to consider. He introduced his analysis with this paragraph:
The medical opinions and notes throughout the record weigh heavily against the claimant's allegations of a disability. The allegations of symptom levels that preclude all types of work are not consistent with the evidence as a whole and are not credible. None of the physicians involved in the claimant's treatment provided objective findings which would indicate that the claimant was disabled or made any statement or recommendation that he would have been unable to work at a substantial gainful level for a continuous period of at least 12 months.Record at 47.
One of the factors ALJ Evans considered in reaching his credibility determination was Plaintiff's prior work record. Id. at 47 (citing 20 C.F.R. § 404.1529(c) and SSR 96-7); see also Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995). In his analysis, he considered that Plaintiff "has a fairly consistent work history," but assigned it no weight, finding that Plaintiff's "past work record neither adds to nor subtracts from the claimant's credibility." Id. at 48. Plaintiff asserts that a good work record entitles him to a finding that he is "more" or "substantially" credible. Doc. 14 at 10.
Plaintiff relies on a quotation from a Second Circuit decision that states: "A claimant with a good work record is entitled to substantial credibility when claiming an inability to work because of a disability." Rivera v. Schweiker, 717 F.2d 719, 725 (2nd Cir. 1993). Rivera, in turn relies on Singletary v. Secretary of Health, Education and Welfare, 623 F.2d 217 (2nd Cir. 1980), which provided in relevant part:
Mr. Singletary does show a life history of hard labor performed under demanding conditions over long hours. His work record shows employment by nationally known racing stables. These animals, both trotters and pacers, are very valuable. Their care is not entrusted to malingerers or goldbricks. His prior work history justifies the inference that when he stopped working he did so for the reasons testified to.Id. at 219 (emphasis added). One decision in this circuit relied on Rivera when it stated that "[w]here a claimant has a good work history, she is entitled to substantial credibility when she then asserts that she is unable to work." Tyson v. Apfel, 107 F. Supp.2d 1267, 1270 (Colo. 2000).
I am not persuaded, however, that the Rivera statement is consistent with the multi-factor credibility analysis provided by the regulations and Tenth Circuit law. Reading Rivera in light of the Singletary decision upon which it relies, the Second Circuit gives claimants with a long work history a presumption of credibility or, at the very least, requires an ALJ to assign a high value to that individual factor. The Seventh Circuit has rejected that approach, and I believe the Tenth Circuit would do so as well.
See Jones v. Apfel, 2000 WL 1648137 *2 (7th Cir. 2000) ("The Second Circuit has clarified, however, that work history is merely one of several factors bearing on credibility. . . . Because multiple factors also guide the ALJ's credibility determination in the Seventh Circuit, . . . Jones is not entitled to a presumption of credibility based solely on his long work history.") (internal citations omitted).
Under Tenth Circuit precedent, if the ALJ considers the requisite factors and links his or her credibility findings to substantial evidence in the record, then the credibility determination is entitled to deference and this Court cannot reweigh the evidence and substitute its opinion for that of the ALJ. Prior work history is but one of the factors, and is not conclusive on the issue of credibility. I therefore reject Plaintiff's contention that he should have been considered credible solely on the basis of his long work history. In considering prior work history as a factor, the ALJ applied the correct standard.
See e.g., 20 C.F.R. § 404.1259(c)(3) ("We will consider all of the evidence presented, including information about your prior work record"); id., § 404.1259(c)(4) ("we consider all of the available evidence described in paragraphs (c)(1) through (c)(3)"); see also Campbell v. Barnhart, 56 Fed.Appx. 438, 441 (10th Cir. 2003) ("The ALJ did not place undue emphasis on plaintiff s work history, but considered it as but one of several factors bearing on her credibility. The ALJ linked his determination of credibility to specific findings of facts in evidence which are fairly derived from the record. Credibility determinations are peculiarly the province of the finder of fact, and should not be upset when supported by substantial evidence.") (internal quotations and citation omitted); Jaramillo v. Massanari, 18 Fed.Appx. 776, 778 (10th Cir. 2001) ("While, as Mr. Jaramillo argues, the ALJ must consider his prior work history as one factor in making his credibility determination . . . that history does not outweigh the record evidence supporting the ALJ's conclusion that Mr. Jaramillo's pain testimony was not fully credible.") (internal citation omitted).
(2) Dr. Strom Is Not A "Treating" Physician And, Even If He Is, His Opinion On Plaintiff's Limitations Was Credited And Relied Upon By ALJ Evans
Plaintiff also argues that ALJ Evans did not properly apply the "treating physician rule" to Dr. Strom's single statement that Plaintiff has "a great deal of difficulty managing his insulin therapy and apparently has wide swings in his blood sugar." Doc. 14 at 5. Dr. Strom made this statement in his cover letter that accompanied the mental impairment forms he sent to Plaintiff's representative. See Record at 285. This argument is unavailing for several reasons.
First, Dr. Strom is not a "treating" physician. Evidently, Plaintiff was seen once at Dr. Strom's clinic in 1995, but there are no medical treatment records whatsoever from Dr. Strom or his clinic in the file, nor is there any indication that Dr. Strom was following Dr. Dorfinan's treatment of Plaintiff's diabetes in the capacity of a referring treating physician. Plaintiff did not list Dr. Strom as a treating physician for his diabetes or depression on his disability report, or on his reconsideration report, or on any other initial form. He only mentioned Dr. Strom in his statement for a request for hearing, and then only as having prescribed medication for athlete's foot and Priviril, which the Physician's Desk Reference indicates is used for hypertension and as an alternative to other drugs for heart failure patients. According to the request for rehearing form and Plaintiff's testimony, Dr. Strom's first of these medications was prescribed in June 1999 and the second in July 1999, in other words, after Dr. Strom examined Plaintiff as a consulting physician for the agency. See Record at 68-69, 75, 129, 147, 168-69.
As the Tenth Circuit recently explained, the regulations and caselaw "require a relationship of both duration and frequency," and doctors are generally considered as "treating sources" when they have "seen the claimant `a number of times and long enough to have obtained a longitudinal picture of [the claimant's] impairment.'" Doyal v. Barnhart, ___ F.3d ___, 2003 WL 21350254 at *4 (10th Cir. 6/10/03).
A physician's opinion is therefore not entitled to controlling weight on the basis of a fleeting relationship, or merely because the claimant designates the physician as her treating source. Absent an indication that an examining physician presented `the only medical evidence submitted pertaining to the relevant time period,' the opinion of an examining physician who only saw the claimant once is not entitled to the sort of deferential treatment accorded to a treating physician's opinion.Id. (citing Reid v. Chater, 71 F.3d 372, 374 (10th Cir. 1995), and adding emphasis). In Plaintiff's case, the medical evidence concerning his diabetes and control thereof are provided by Dr. Dorfman's medical records. In the absence of any treatment records or an indication by Dr. Strom of a treatment relationship of some standing, I conclude that he cannot be considered a "treating" physician.
Alternatively, I will assume for the purposes of discussion that Dr. Strom is considered a treating physician. If I understand Plaintiff's position correctly, he contends that Dr. Strom's statement that Williams "has had a great deal of difficulty managing his insulin therapy" should be considered an objective finding that he is disabled by his "wide swings in his blood sugar." See Doc. 14 at 5. Williams argues that such a finding corroborates his testimony.
I disagree that the cited statement is an "objective finding." Since there are no treating records from Dr. Strom, I conclude that the isolated sentence in question reflects Dr. Strom relating something Plaintiff had told him, as opposed to something he observed during the course of treatment. Thus, ALJ Evans correctly characterized the record when he found that no treating physician made objective medical findings indicating that Plaintiff is disabled or unable to work. Furthermore, Plaintiff's assertion that ALJ Evans failed to "discuss which objective findings contradict [Plaintiff's] allegation that his diabetes, depression and weakness disable him," Doc. 14 at 6, simply does not bear scrutiny in light of ALJ Evans' discussion of Plaintiff s allegations of limitations compared to the findings Dr. Strom made. See Record at 48-49.
Also, Dr. Strom's statement does not clearly state that Plaintiff's diabetes, i.e., the disease itself, is uncontrollable with medication. Rather, on its face it plainly suggests that Plaintiff does not properly manage his insulin. Even if I assume that Dr. Strom's comment means Plaintiff's disease is poorly controlled, the statement says nothing about Plaintiff's ability to work despite his disease. In fact, Dr. Strom rendered an opinion on that subject by virtue of the forms he provided, and ALJ Evans credited those opinions "significantly" in arriving at his decision. Those opinions support the conclusion that Plaintiff can perform unskilled sedentary work given his diabetes and depression. In the final analysis, then, ALJ Evans essentially did give controlling weight to Dr. Strom's opinion on Plaintiff's limitations.
In the alternative, then, I find that the treating physician rule is either not implicated or was in fact honored by ALJ Evans.
(3) ALJ Evans Did Not Deny Benefits Based On A Failure To Seek Treatment And He Rejected Dr. Lee's Opinion That Plaintiff Cannot Work Based On Substantial EvidencePlaintiff contends that ALJ Evans entirely discounted Plaintiff's depression on the improper ground that Plaintiff failed to seek treatment, without applying the four-part inquiry required by Thompson v. Sullivan, 987 F.3d 1482, 1490 (10th Cir. 1993). Doc. 14 at 7-8. He further contends that in discussing Plaintiff's failure to seek counseling, ALJ Evans "displays a lack of understanding of those who suffer from mental illness" and constitutes a error of law, because those "with mental impairments may not be able to recognize the need to seek treatment." Id. at 7. I disagree.
Plaintiff's reliance on Thompson is misplaced because the ALJ did not deny benefits based on a failure to seek treatment. The extent to which Plaintiff sought treatment for what he characterizes as debilitating depression is a legitimate "avenue of inquiry" in the credibility context. Teets v. Apfel, 1997 WL 713248 n. 2 (10th Cir. 1997) (attached); see also Brown v. Barnhart, 47 Fed.Appx. 864, 866 (106th Cir. 2002) (credibility determination did not violate Thompson where claimant's failure to lose weight was among the factors the ALJ considered in making credibility determination); Allen v. Apfel, 2000 WL 796081 (10th Cir. 2000) (and reported cases cited therein; rejecting argument that consideration of failure to take pain medication violated decisions Thompson relied upon) (attached); 20 C.F.R. § 404.1530(b) (the four factor test for denial of benefits when claimant fails to pursue prescribed medical treatment without good reason). Also, it is not erroneous when an ALJ considers a claimant's subjective complaints of depression and rejects them because they are inconsistent with the medical assessments of the claimant's condition and degree of functional limitations. See Allen, supra.
In any event, ALJ Evans did not entirely discount depression as an impairment. To the contrary, he found it to be "severe" at step 2. Record at 46. At issue here is not whether Plaintiff suffers from depression, but rather the degree of limitations posed by that condition. Plaintiff maintains the limitations render him unable to do any work. As to the latter issue, ALJ Evans found:
The claimant also alleges that he is disabled due to depression. Although the claimant testified that he has problems with mood swings, the claimant also testified that he has receive no treatment for this condition. Dr. Lee noted that the claimant interacted appropriately; his memory was intact; he was able to attend; and he had a low level of clinical depression. However, Dr. Lee also noted that his concentration was impaired. (Exh. 7F) Although the claimant may have some depression, the claimant's lack of treatment weight heavily against his allegations of disabling symptoms.Record at 48.
Plaintiff argues ALJ Evans simply ignored Dr. Lee's opinion that he cannot work. He maintains that Dr. Lee's opinion "when added to the opinion of Dr. Strom, makes [his] claim that he cannot work a compelling one." Doc. 14 at 7. Again, ALJ Evans did not ignore Dr. Lee's opinion that Plaintiff cannot work. To the contrary, he specifically discussed that finding. Record at 47. The quotation above demonstrates that Dr. Lee's specific findings are not necessarily consistent with his assertion that Plaintiff cannot work. Moreover, ALJ Evans thoroughly reviewed the medical evidence and specifically relied upon the mental limitation assessments of Dr. Strom, which were essentially consistent with Dr. Lee's, and specifically relied upon the consulting physicians' mental limitations assessments, which support Dr. Strom's findings. He additionally rejected Plaintiff's claims of total disability in light of his considerable daily activities. It is quite clear upon reading the comprehensive opinion that the reason ALJ Evans rejected Dr. Lee's conclusory statement about ability to work is because of other substantial evidence in the record.
B. ALJ Properly Relied On Vocational Expert Testimony
Plaintiff argues it was error for the ALJ not to adopt the vocational expert's testimony, asked by his representative, that a residual functional capacity which includes problems with mood swings and depression precludes all jobs. See Doc. 14 at 9; Record at 84-86. However, it is well settled that an ALJ is not required to accept as binding a hypothetical based on evidence unsupported by the record:
[t]he hypothetical question should include all — and only — those impairments borne out by the evidentiary record. . . . The VE relied on the limitations found by the ALJ, which are reflected in the RFC assessment form. The ALJ was not required to accept the answer to a hypothetical question that included limitations claimed by plaintiff but not accepted by the ALJ as supported by the record. . . . We conclude the ALJ did not err in relying on the VE's testimony.Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir. 1995); see also Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996); Talley v. Sullivan, 908 F.2d 585, 588 (10th Cir. 1990). This argument without merit in light of the credibility discussion, above.
Wherefore,
IT IS HEREBY ORDERED that Plaintiff's motion (Doc. 13) is DENIED and the decision of the Commissioner is AFFIRMED. A final order will enter concurrently herewith.