Rivers v. Astrue(CONSENT)

Filing 23

MEMORANDUM OPINION. Signed by Honorable Charles S. Coody on 3/4/2010. (dmn)

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION B E R T H A D. RIVERS, P l a in tif f , v. M IC H A E L J. ASTRUE, C o m m is s io n e r of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

C I V IL ACTION NO. 1:04cv481-CSC (W O )

M E M O R A N D U M OPINION I . Introduction T h e plaintiff applied for disability insurance benefits pursuant to Title II of the Social S e c u rity Act, 42 U.S.C. §§ 401 et seq, and supplemental security income benefits under Title X V I of the Social Security Act, 42 U.S.C. § 1381 et seq., alleging that she was unable to w o rk because of a disability. Her application was denied at the initial administrative level. T h e plaintiff then requested and received a hearing before an Administrative Law Judge (" A L J " ). Following the hearing, the ALJ also denied the claim on October 7, 2002. The A p p e a ls Council rejected a subsequent request for review. The ALJ's decision consequently b ec am e the final decision of the Commissioner of Social Security (Commissioner).1 See C h e ste r v. Bowen, 792 F.2d 129, 131 (11 th Cir. 1986). C o m m is s io n e r' s denial of this application to this Court.
Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social Security matters were transferred to the Commissioner of Social Security.
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The plaintiff appealed the

W h ile the plaintiff's first application was in the appellate process, the plaintiff filed a second application. Following a hearing on the second application, the ALJ issued a f a v o ra b le decision on October 28, 2004 in which the ALJ determined that the plaintiff was d is a b le d . (R. 29). Thus, the period of disability at issue in this case is from the date of onset o n September 1, 1999 until August 1, 2002.2 T h e case is now before the court for review pursuant to 42 U.S.C. §§ 405 (g) and 1 6 3 1 (c )(3 ). Pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties have c o n se n te d to the United States Magistrate Judge conducting all proceedings in this case and o r d e r in g the entry of final judgment. Based on the court's review of the record in this case a n d the briefs of the parties, the court concludes that the decision of the Commissioner s h o u ld be affirmed. II. Standard of Review U n d e r 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e ter m in a b le physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period o f not less than 12 months . . . To make this determination,3 the Commissioner employs a five-step, sequential

In his favorable decision issued on October 28, 2004, the ALJ determined that Rivers was disabled from August 2, 2002 through October 7, 2002, and that she has been disabled since October 8, 2002. (R. 33). A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
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e v a lu a tio n process. See 20 C.F.R. §§ 404.1520, 416.920. (1 ) Is the person presently unemployed? (2 ) Is the person's impairment severe? (3 ) Does the person's impairment meet or equal one of the specific im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? (4 ) Is the person unable to perform his or her former occupation? (5 ) Is the person unable to perform any other work within the economy? A n affirmative answer to any of the above questions leads either to the next q u e stio n , or, on steps three and five, to a finding of disability. A negative a n sw e r to any question, other than step three, leads to a determination of "not d is a b le d ." M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11 th Cir. 1986).4 T h e standard of review of the Commissioner's decision is a limited one. This court m u s t find the Commissioner's decision conclusive if it is supported by substantial evidence. 4 2 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11 th Cir. 1997). "Substantial e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e r a le s, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of th e record which support the decision of the ALJ but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11 th Cir. 1986).

diagnostic techniques. McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986), is a supplemental security income case (SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited as authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).
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[ T h e court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings . . . No similar p re su m p tio n of validity attaches to the [Commissioner's] . . . legal conclusions, in c lu d in g determination of the proper standards to be applied in evaluating c la im s . W a lk e r v. Bowen, 826 F.2d 996, 999 (11 th Cir. 1987). I I I . Procedural History A . Introduction Rivers was 46 years old at the time of the last hearing before the ALJ. (R. 1157). She h a s a high school equivalency diploma. (R. 1146, 1160). Rivers's prior experience includes w o rk as a "child care worker, a presser in a dry cleaner, a laundry worker and a seamstress." (R . 32). Following a hearing, the ALJ concluded that Rivers has severe impairments of " h is to ry of chronic lumbar strain, asymptomatic Human Immunodeficiency Virus (HIV) in f e ctio n and history of overactive bladder and mixed urinary incontinence." (R. 31). The A L J concluded that Rivers was unable to perform her past relevant work. (R. 32). Relying o n the testimony of a vocational expert, the ALJ concluded that there were jobs existing in s ig n if ic a n t numbers in the national economy that Rivers could perform, and thus, she was not d isab led. (R. 33). B . Plaintiff's Claims As stated by Rivers, she presents two issues for the Court's review: 1. W h e th e r the ALJ erred as a matter of law when he failed to s h o w good cause for discounting the opinion of a treating 4

p h ys i c i a n ? 2. W h e t h e r the ALJ erred as matter of law when he failed to pose a complete hypothetical to the vocational expert?

(Pl's Br., doc. # 16, pp. 1, 6 & 9). I V . Discussion A disability claimant bears the initial burden of demonstrating an inability to return to her past work. Lucas v. Sullivan, 918 F.2d 1567 (11 th Cir. 1990). In determining whether th e claimant has satisfied this burden, the Commissioner is guided by four factors: (1) o b je c tiv e medical facts or clinical findings, (2) diagnoses of examining physicians, (3) su b jec tiv e evidence of pain and disability, e.g., the testimony of the claimant and her family o r friends, and (4) the claimant's age, education, and work history. Tieniber v. Heckler, 720 F .2 d 1251 (11 th Cir. 1983). The court must scrutinize the record in its entirety to determine th e reasonableness of the ALJ's decision. See Walker, 826 F.2d at 999. The ALJ must c o n sc ien tio u sly probe into, inquire of and explore all relevant facts to elicit both favorable a n d unfavorable facts for review. Cowart v. Schweiker, 662 F.2d 731, 735-36 (11 th Cir. 1 9 8 1 ). The ALJ must also state, with sufficient specificity, the reasons for his decision r e f e r en c in g the plaintiff's impairments. a d d re s s e s the plaintiff's specific claims. A. Weight assigned to the opinion of a treating physician. The plaintiff complains th a t the ALJ's reasons for discounting the opinion of her treating physician, Dr. Jay B e is w a n g e r, are not supported by substantial evidence. (Pl's Br. at 7). The ALJ did not 5 Within this analytical framework, the court

ac co rd much weight to the opinion of Dr. Beiswanger. L ittl e weight is given to the opinion of Jay C. Beiswanger, M.D., that the c laim a n t' s overactive bladder and mixed urinary incontinence would n e c es s ita te frequent use of the bathroom and the need to stay in the bathroom f o r extended periods of time. Dr. Beiswanger's opinion was not supported by h is progress notes, which indicate that this condition had improved and that the c laim a n t was doing really well. (R . 32). O f course, the law in this circuit is well-settled that the ALJ must accord "substantial w e ig h t" or "considerable weight" to the opinion, diagnosis, and medical evidence of the c la im a n t's treating physician unless good cause exists for not doing so. Jones v. Bowen, 810 F .2 d 1001, 1005 (11 th Cir. 1986); Broughton v. Heckler, 776 F.2d 960, 961 (11 th Cir. 1985). T h e Commissioner, as reflected in his regulations, also demonstrates a similar preference for th e opinion of treating physicians. G e n e ra lly, we give more weight to opinions from your treating sources, since th e se sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the o b je c tiv e medical findings alone or from reports of individual examinations, s u c h as consultive examinations or brief hospitalizations. L e w is v. Callahan, 125 F.3d 1436, 1440 (11 th Cir. 1997) (citing 20 CFR § 404.1527 (d)(2)). T h e ALJ's failure to give considerable weight to the treating physician's opinion is reversible e rr o r. Broughton, 776 F.2d at 961-2; Wiggins v. Schweiker, 679 F.2d 1387 (11 th Cir. 1982). T h e re are, however, limited circumstances when the ALJ can disregard the treating p h ysician 's opinion. The requisite "good cause" for discounting a treating physician's

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o p in io n may exist where the opinion is not supported by the evidence, or where the evidence s u p p o rts a contrary finding. See Schnorr v. Bowen, 816 F.2d 578, 582 (11 th Cir. 1987). Good c a u se may also exist where a doctor's opinions are merely conclusory; inconsistent with the d o c to r' s medical records; or unsupported by objective medical evidence. See Jones v. Dept. o f Health & Human Servs., 941 F.2d 1529, 1532-33 (11 th Cir. 1991); Edwards v. Sullivan, 9 3 7 F.2d 580, 584-85 (11 th Cir. 1991); Johns v. Bowen, 821 F.2d 551, 555 (11 th Cir. 1987). T h e weight afforded to a physician's conclusory statements depends upon the extent to which th e y are supported by clinical or laboratory findings and are consistent with other evidence o f the claimant's impairment. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11 th Cir. 1986). T h e ALJ "may reject the opinion of any physician when the evidence supports a contrary c o n c lu s io n ." Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11 th Cir. 1983). The ALJ must a rtic u la te the weight given to a treating physician's opinion and must articulate any reasons f o r discounting the opinion. Schnorr, 816 F.2d at 581. The plaintiff argues that the ALJ took a single comment by Dr. Beiswanger that R iv e rs was "doing really well" "out of context," and the statement is insufficient to discount h is opinion. (Pl's Br. at 7-8). After reviewing all the medical records 5 , the ALJ rejected Dr.

Although the ALJ did not recite all of Dr. Beiswanger's medical records in his final opinion, he adopted all the evidence he discussed in his earlier decision. The medical evidence and testimony received at the claimant's prior hearing were completely and adequately summarized in the hearing decision dated October 7, 2002. Such summarization of the medical and other evidence of record in that proceeding are adopted and incorporated by reference as though fully set forth herein." (R. 31).

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B e is w a n g e r's opinion because "his opinion was not supported by his progress notes, which in d ic a te that this condition had improved and that the claimant was doing really well." (R. 3 2 ). Dr. Beiswanger bases his opinion on treatment notes by Jay Wilkins, a certified P h ys ic ia n 's Assistant, under his supervision and the supervision of other doctors in the o f f ic e . See 20 C.F.R. § 416.913(1).6 See also Social Security Ruling 06-03p. W ilk i n s treated Rivers, under the supervision of Dr. Beiswanger and other doctors, f ro m June 9, 2000 until August 22, 2002. (R. 637-666, 954). Rivers first presented on June 9 , 2000. (R. 648-49). At that time, she complained of "some intermittent gross hematuria 7 o v e r the past one month." (Id.) (footnote added). She also complained of "urge

in c o n tin e n c e." (Id.) Rivers was diagnosed with Hematuria, Pyuria,8 Bacteriuria,9 Mixed U rin a ry Incontinence with stress and urge incontinence, and Nocturia.1 0 After a cystoscopic e x a m in a t io n on July 10, 2000, Rivers was prescribed antibiotics. (R. 648). Wilkins also n o ted that Rivers "does have some incontinence, but at this time [she] is not interested in th e ra p y. . . .She may benefit from Prosed or some other type of antispasmodic." (Id.)

Because Wilkins is a Physician's Assistant, he is not considered a "treating physician," or an "acceptable medical source." He would be considered an "other source." See 20 C.F.R. § 416.913 ("In addition to evidence from the acceptable medical sources listed in paragraph (a) of this section, we may also use evidence from other sources . . . Other sources include, but are not limited to ­ (1) Medical sources not listed in paragraph (a) of this section (for example, nurse-practitioners, physicians' assistants, naturopaths, chiropractors, audiologists, and therapists); . . ."
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Hematuria denotes the presence of blood in the urine. Pyuria denotes the presence of pus in the urine. Bacteriuria denotes the presence of bacteria in the urine. Nocturia denotes the need to frequent get up during the night to urinate.

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R iv e rs returned to Dr. Beiswanger's office on August 14, 2000. At that time, Wilkins n o te d that she was d o in g really well. She states the Prosed helped her symptoms quite a bit. She d o e s admit to going to the bathroom every hour during the day, has quite a s ig n if ic a n t amount of urgency. It seems that her urge incontinence is worse w i th better stress incontinence, but both are minimal at this point. She is g e ttin g up four or five times a night as well. Since she did benefit from P ro s e d , I think Detrol is in order. . . . (R . 646) (emphasis added). Rivers was prescribed Detrol. (Id.) Rivers did not keep her f o llo w -u p appointment on November 14, 2000. (Id.) O n December 28, 2000, Rivers complained that she continued to have "some mixed u r in a r y incontinence," but she did not have "any interval problems." (R. 646). She also a d m itte d that she had not taken the medication Destrol as prescribed. (Id.) She next saw Wilkins on April 23, 2001. At that time, she reported that she had been ta k in g Ditropan with "excellent results." (R. 643-44). She was continued on Ditropan, three tim e s a day. (Id.). On August 9, 2001, Rivers was diagnosed with minor bacteriuria and p re sc rib e d antibiotics. (R. 643). On August 20, 2001, Rivers complained of increased u r g e n c y. It was suggested to Rivers that she practice timed voiding but she declined to fo llo w that suggestion. Her prescription for Ditropan was refilled. (R. 642). O n October 23, 2001, treatment notes indicate that Rivers had "frequent urination, [ b u t] was doing well on Ditropan." (R. 641). A CT urogram on October 30, 2001 was n o rm a l . (R. 638-39). On November 2, 2001, Rivers was diagnosed with Bacteriuria and U rg e n c y. (R. 638). Wilkins opined that Rivers' back pain was musculoskeletal and 9

u n re la te d to her bladder condition. (Id.) Because Rivers was also complaining of urgency, h e r medication was changed from Ditropan to Ditropan XL and the dosage was increased. (Id .) She was also prescribed antibiotics for the bacterial infection. (Id.) Rivers returned to Dr. Beiswanger's office on December 23, 2001. At that time, she w a s "doing well. The Ditropan XL is working great." (R. 637). Wilkins did not anticipate s e e in g Rivers again for a year. (Id.) Wilkins next saw Rivers on June 3, 2002. At that time, she complained of dysuria and f re q u e n t urination during the night. However, she "has urgency and sensation of incomplete e m p tyin g only with the onset of these symptoms." (R. 955) (emphasis added). She was d ia g n o se d with Bacteriuria and Yeast Vaginitis and prescribed antibiotics for the infections a s well as Prosed DS for inflammation of the urinary tract. (Id.). On June 12, 2002, her p re s c rip tio n for Ditropan XL was refilled. (Id.). Also on June 12, 2002, Dr. Beiswanger wrote a letter describing Rivers' medical c o n d itio n . M s . Rivers suffers with overactive bladder and mixed urinary incontinence. T h is does necessitate frequent use of the bathroom and medical therapy to d e c re a se the frequency of her symptoms. Urgency is a large component of th is , and she may feel the need to stay in the bathroom until the bladder spasms s u b s id e . (R . 666). D r. Beiswanger knew that the letter was to support Rivers's claim for disability b e n e f its . (Id.) He did not opine that Rivers was disabled or even that she was unable to

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w o rk . (Id.). After increasing Rivers' medication in November 2001, Rivers did not present to Dr. Beiswanger's office again until she complained of an infection. When Wilkins saw R iv e rs on June 3, 2002, she was treated for an urinary tract infection and it was noted that h e r urgency symptoms began with the onset of the infection. (R.955). Thus, Rivers' own tre a tm e n t records are inconsistent with and do not support Dr. Beiswanger's opinion that her c o n d itio n causes"frequent use of the bathroom and the need to stay in the bathroom for ex tend ed periods of time." (R. 32). M o reo v er, other medical records as a whole are inconsistent with and do not support B e is w a n g e r's opinion that Rivers's overactive bladder and incontinence cause functional lim ita tio n s . During the time period that Wilkins was treating Rivers, she was also treated by D r. William Bone. On September 7, 2000, Rivers denied any "dysuria, frequency, or u rg e n c y." (R. 597). On September 25, 2001, Rivers "[d]enies any urinary tract problems." (R . 608). On October 30, 2001, Dr. Bone reported that Rivers "denies any genito-urinary complaints such as hematuria, dysuria, frequency, urgency, hesitancy, nocturia, incontinence, e tc ." (R. 570, 904). She denied such problems on December 24, 2001, January 31, 2002, an d February 28, 2002. (R. 609-10, 611, 613, 615). O n April 29, 2002, Rivers complained to Dr. Bone of urinary incontinence "for the p ast several weeks." (R. 655, 889). On June 4, 2002, Rivers informed Dr. Bone that Dr. B e is w a n g e r had treated her for a urinary tract infection. (R. 887). On August 5, 2002, R iv e rs again denied "any genito-urinary complaints such as hematuria, dysuria, frequency,

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u rge n cy, hesitancy, nocturia, incontinence, etc." (R. 884). D u rin g the first administrative hearing on January 26, 2005, Rivers was asked why s h e could not work. While she initially responded "[m]y back, my feet, and my bladder," she la te r indicated she could not work due to the pain in her back and legs. (R. 1135). During th e second hearing on June 10, 2005, Rivers stated that she could not work due to her back. (R . 1146, 1149). Finally, during the third administrative hearing, the ALJ and Rivers e n g a g e d in the following colloquy. Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: . . . Okay, well tell us about your disability, ma'am. What are the p ro b le m s that you have that keep you from being able to work? P a in . O k a y, pain. S e v e re pain. A n d where is it located? M y back, down my legs, feet, hands. O k a y. T h e back and the legs are the worst. O k a y, so pain is a key part of the whole picture? Y es. O k a y. A n d having to go to the bathroom. I have to go to the bathroom quite f r e q u e n t l y.

(R . 1163). B a se d upon its review of the ALJ's decision and the objective medical evidence of re c o r d , the court concludes that the ALJ's rejection of Dr. Beiswanger's opinion that p la in tif f 's condition causes "frequent use of the bathroom and the need to stay in the b a th ro o m for extended periods of time" is supported by good cause and substantial evidence.

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B.

H y p o th e tic a l questions posed to the vocational expert. The plaintiff also

a rg u e s that the ALJ should have included functional restrictions related to her overactive b la d d e r and incontinence in the hypothetical questions posed to the vocational expert, and h is failure to do so constitutes error. (Pl's Be. at 9-10). Specifically, Rivers argues that the A L J should have accepted Dr. Beiswanger's opinion that Rivers would require frequent b a th ro o m breaks and extended periods of time in the bathroom, and thus, should have in c o rp o ra te d these restrictions in his hypothetical questions to the vocational expert. The c o u rt disagrees. For the reasons already stated, the ALJ had good cause to and properly d is c o u n te d Dr. Beiswanger's opinion in this regard. Next, the plaintiff argues that "when asked to consider functional limitations related to Ms. Rivers's urinary problems, the VE testified that such functional limitations would p re c lu d e employment (R. 1155)." (Pl's Br. at 10). Rivers relies on the following question p o s e d to the vocational expert at the second administrative hearing to support her position. Q: S ir, if you add to his hypothetical number one and number two the n e c es s ity for unscheduled breaks every hour. She was having physical p ro b le m s causing urination that, and that was never resolved, and it was re q u irin g breaks, would require breaks every hour. Would that p re c lu d e the jobs that you had listed? Y e s, I would expert that it would prevent the individual from sustaining th o s e jobs.

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(R . 1154) (emphasis added). The problem with the plaintiff's argument is the hypothetical a ss u m e s a critical fact not supported by the medical evidence. Rivers suggests in the h yp o th e tic a l that her overactive bladder and incontinence conditions were never resolved;

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h o w e v e r, the medical record does not support this suggestion. Treatment notes from Wilkins a n d Dr. Bone demonstrate that Rivers's urinary conditions were successfully treated with m e d ic a tio n . When she experienced frequency and urgency, these symptoms were caused by u r in a r y tract infections that were subsequently successfully treated with antibiotics. Thus, th e ALJ did not err by failing to include in his hypothetical questions limitations which have n o t been established by the record. Thus, the court finds that the ALJ did not commit error in his questioning of the vocational expert. This court must accept the factual findings of the C o m m is s io n e r if they are supported by substantial evidence and based upon the proper legal s ta n d a r d s . Bridges v. Bowen, 815 F.2d 622 (11 th Cir. 1987). V . Conclusion T h e court has carefully and independently reviewed the record and concludes that s u b s ta n tia l evidence supports the ALJ's conclusion that plaintiff is not disabled. Thus, the c o u rt concludes that the decision of the Commissioner is supported by substantial evidence a n d is due to be affirmed. A separate order will be entered. D o n e this 4 th day of March, 2010.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE

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