Stromp v. Social Security Administration
Filing
18
OPINION AND ORDER by Magistrate Judge T Lane Wilson (crp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
JOHN B. STROMP,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of the Social Security
Administration,
Defendant.
Case No. 11-cv-56-TLW
OPINION AND ORDER
Plaintiff John B. Stromp, pursuant to 42 U.S.C. §§ 405(g), 416(i), and 1382, requests
judicial review of the decision of the Commissioner of the Social Security Administration
denying his application for disability benefits under Title XVI of the Social Security Act (“Act”).
In accordance with 28 U.S.C. § 636(c)(1) and (3), the parties have consented to proceed before
the undersigned United States Magistrate Judge. (Dkt. # 8). Any appeal of this order will be
directly to the Tenth Circuit Court of Appeals.
Review
When applying for disability benefits, a plaintiff bears the initial burden of proving that
he or she is disabled. 42 U.S.C. § 423(d)(5); 20 C.F.R. § 416.912(a). “Disabled” under the Social
Security Act is defined as the “inability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment.” 42 U.S.C. § 423(d)(1)(A). A
plaintiff is disabled under the Act only if his or her “physical or mental impairment or
impairments are of such severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of substantial
gainful work in the national economy.” 42 U.S.C. § 423(d)(2)(A). Social Security regulations
1
implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. § 416.920;
Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (setting forth the five steps in detail). “If
a determination can be made at any of the steps that a plaintiff is or is not disabled, evaluation
under a subsequent step is not necessary.” Williams, 844 F.2d at 750.
The role of the court in reviewing a decision of the Commissioner under 42 U.S.C. §
405(g) is limited to determining whether the decision is supported by substantial evidence and
whether the decision contains a sufficient basis to determine that the Commissioner has applied
the correct legal standards. Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).
Substantial evidence is more than a scintilla, less than preponderance, and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The Court’s
review is based on the record, and the Court will “meticulously examine the record as a whole,
including anything that may undercut or detract from the [Administrative Law Judge]
[(“]ALJ[“)]’s findings in order to determine if the substantiality test has been met.” Id. The Court
may neither re-weigh the evidence nor substitute its judgment for that of the Commissioner. See
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Even if the Court might have reached
a different conclusion, if supported by substantial evidence, the Commissioner’s decision stands.
White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2002).
A disability is a physical or mental impairment “that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423 (d)(3). “A physical impairment
must be established by medical evidence consisting of signs, symptoms, and laboratory findings,
not only by [an individual’s] statement of symptoms.” 20 C.F.R. § 416.908. The evidence must
2
come from “acceptable medical sources” such as licensed and certified psychologists and
licensed physicians. 20 C.F.R. § 416.913(a).
Background
Plaintiff was born January 27, 1966 and was 43 years old at the time of ALJ John Volz’s
final decision on June 23, 2009. (R. 86, 92). He is 6’4” tall, and weighs 250 lbs. (R. 95). Plaintiff
graduated high school in 1983. (R. 99). Plaintiff’s prior work history consists mainly of
construction work. (R. 37, 130). Plaintiff protectively filed a Title XVI claim on August 6, 2007,
alleging a disability onset date of May 1, 2007. (R. 86, 92). Plaintiff had a hearing before the
ALJ on June 1, 2009. The ALJ issued his decision on June 23, 2009, denying plaintiff’s claim for
benefits. Plaintiff appealed that decision to the Appeals Council, which declined to review the
decision of the ALJ. (R. 1-5).
Hearing Summary
Plaintiff testifies he stopped working in construction “and outdoor work” when he
learned he was diabetic two years prior to the hearing. (R. 20-21). He testifies to sharp pain in his
stomach, which he also describes as constant pressure, creating nausea and weight loss. He says
he is scheduled to have a “scope” the week following the hearing. (R. 21-22). He went on to
describe diabetic neuropathy which affects his hands, feet, legs, and arms. He says his normal
blood sugar readings were around 220. Plaintiff states he is compliant with his medication and
diabetic diet. (R. 23). He claims he could walk 50 to 100 feet before pain makes him stop. He
claims standing and sitting are both affected by his diabetes, and he is most comfortable
alternating between lying down, sitting, and walking. (R. 25).
3
The ALJ asked plaintiff about any drinking problems, which he denied, saying he never
had a problem with alcohol, and explained he drank in high school and college, but that was over
20 to 25 years before. (R. 27).
Plaintiff discusses adverse effects of his high blood pressure, explaining his doctors have
unsuccessfully tried several medications to control it. (R. 24, 30). He mentions an issue with his
heart, trouble sleeping, and headaches. (R. 32, 33). He states he feels he would be able to lift 20
pounds with no problem. (R. 32). He claims to be unable to focus on a two-hour movie and that
his depression and anxiety factor into his inability to work. (R. 34-35). Plaintiff is able to drive
and owns a car, but said he does not drive very far. (R. 35).
The vocational expert (“VE”) testified plaintiff’s former work as a construction laborer
was classified as heavy exertion and unskilled. (R. 37). The ALJ then posed a hypothetical
person of plaintiff’s “age, educational background, and prior work experience who could
occasionally lift 50 pounds, frequently lift 25 pounds, stand and/or walk six hours in an eighthour workday, sit six hours in an eight-hour workday, unlimited other than shown, lift and carry,
except for those limitations in weight,” and asked if there were jobs in the regional or national
economy such a person could perform. The VE found plaintiff would be unable to perform his
previous work, but would be able to perform the medium exertion jobs of janitorial work and
machine operator, and the sedentary job of assembly work. (R. 37-38).
Medical Records
Plaintiff presented to Clinico, LLC, Rural Health Clinic eleven times between October
27, 2006 and August 27, 2007, was tested and treated for high blood pressure, diabetes, liver
disease, and an abnormal ultrasound of his gall bladder. (R. 141-165). He was referred to a
4
gastroenterologist, but was unable to afford to go, so doctors told his wife to contact both OU
and OSU medical centers for possible treatment. (R. 143).
On November 7, 2007, plaintiff presented to Ronald Schatzman, M.D. for a consultative
examination. (R. 166-171). Dr. Schatzman conducted a general review of plaintiff’s systems,
noting plaintiff was “remarkable for diabetes, fainting, dizzy spells, muscle pain, indigestion,
constipation, gallstones, hypertension, and rapid heartbeat.” (R. 166). Upon examination, he
noted the majority of plaintiff’s systems were normal. He noted grip strength of “5/5 bilaterally
strong and firm,” and that plaintiff could perform gross and fine tactile manipulations. (R. 168).
Plaintiff’s heel/toe walking was noted to be difficult, but within normal limits. His cervical,
thoracic, and lumbar-sacral spines were all non-tender with a normal range of motion, with
negative straight leg testing bilaterally. Dr. Schatzman also noted decreased sensation to midthigh in plaintiff’s legs, paresthesias1 up his legs to his knees, and decreased sensation in his
hands to the wrists. Id. Dr. Schatzman noted plaintiff had a stable gait, but “walk[ed] as though
he ha[d] sore feet.” Id. Plaintiff’s range of motion charts were normal. (R. 169-171). Plaintiff
was diagnosed with hypertension, diabetes mellitus, peripheral neuropathy,2 tobacco abuse, and
possible alcohol abuse in the past. (R. 168).
On December 6, 2007, plaintiff presented to Morton Comprehensive Health Services,
Inc. to “establish care,” with complaints of numbness and tingling bilaterally in his lower
extremities, heartburn. (R. 181-191). Plaintiff listed his history of type 2 diabetes with
1
Paresthesia is defined as a burning, prickling, itching, or tingling skin sensation with no
discernible cause. See http://medical-dictionary.thefreedictionary.com/paresthesia last visited
April 30, 2012.
2
Peripheral neuropathy associated with diabetes is nerve damage which usually affects the arms,
hands, legs, and feet. It is known to present with or without symptoms of pain.
See http://www.foothealthfacts.org/footankleinfo/diabetic_peripheral_neuro.htm last visited
April 30, 2012.
5
neuropathy, and explained his previous primary care physician prescribed Neurontin for the
tingling and numbness, but plaintiff could not afford it. He requested a refill of Lortab, which he
used for neuropathic pain. After examination, Njanja Ruenji, P.A. assessed plaintiff with type 2
diabetes, diabetic neuropathy, and GERD. Plaintiff’s treatment plan included adding
prescriptions of Omeprazole (to treat GERD), and Neurontin (to treat neuropathic pain), to his
current medications (including Humulin, an insulin; Enalapril for high blood pressure; Tramadol
for moderate to severe pain; Neurontin for neuropathic pain; and Lortab for pain), lab work, a
referral to a pain management specialist, and smoking cessation. (R. 181-182).
On December 17, 2007, Luther Woodcock, M.D. completed a physical RFC form
regarding plaintiff. (R. 172-179). Dr. Woodcock gave plaintiff the RFC to occasionally lift
and/or carry 50 pounds, frequently lift and/or carry 25 pounds, sit, stand, and/or walk, with
normal breaks, each for six hours in an eight hour workday. There were no push and/or pull
restrictions. Dr. Woodcock adopted most of the results of plaintiff’s November 7, 2007
consultative examination with Dr. Schatzman. Dr. Woodcock listed no postural, manipulative,
visual, communicative, or environmental limitations.
Plaintiff visited CREOKS Mental Health Center twice between January 4, 2008 and
March 3, 2008. (R. 193-203). His initial Axis diagnoses were: I-major depressive disorder,
recurrent, severe, and generalized anxiety disorder; II-none; III-diabetes (insulin dependent),
high blood pressure, and neuropathy; IV-social environment, economic, and access to healthcare
services; and V-GAF of 52. These did not change on his second visit. Although it is noted on a
section named “Discharge Plan” that plaintiff’s expected date of discharge would be March,
2009, no further records of treatment from CREOKS are found in the file.
6
Next, Denise LaGrand, Psy.D., performed a mental consultative examination of plaintiff
for the administration on April 1, 2008. (R. 204-210). No mental health records for plaintiff were
provided. (R. 204). Dr. LaGrand noted plaintiff’s physical appearance, that his hygiene was
appropriate, he had no noticeable physical handicaps, his posture, gait and motor activity were
normal, no unusual mannerisms or involuntary movements were noticed, his facial expression
and eye contact were appropriate, and he was cooperative, alert, and responsive to his
surroundings. (R. 205-206). She noted during her examination that though plaintiff had
complained of memory problems interfering with his ability to function, he had no significant
difficulty with the exam memory tasks. Plaintiff reported feeling sad, and reported suicidal
ideations. Her diagnostic impression was Axis I-pain disorder due to his general medical
condition, major depressive disorder, moderate; Axis II-no diagnosis; Axis III-deferred; Axis IVoccupational problems; and Axis V-GAF score of 55.
Based on testing, Dr. LaGrand noted plaintiff’s ability to concentrate to be low average
with no significant problems with persistence or pace; his IQ was estimated in the low average
range, and his functioning was consistent with this IQ; his ability to maintain appearance was
adequate; reliability was fair; his ability to communicate and interact socially was adequate; his
abilities to function independently and cope with typical work-like mental/cognitive demands
were adequate; his abilities to sustain concentration and persistence on basic skills, and to timely
complete work-like tasks, were fair. Dr. LaGrand noted plaintiff’s reported mental/emotional
symptoms did not appear to affect his performance. (R. 208). She stated based from a
psychological standpoint, overall, plaintiff possessed a “low average” ability to perform
adequately in most job situations, and handle the stresses associated with a normal work setting.
Id. Dr. LeGrand estimated plaintiff to have a fair chance to improve his condition with “adequate
7
treatment, relief from pain, medical intervention for his physical problems, counseling,
parenting, and appropriate psychotropic medication.” (R. 209).
Kathleen Gerrity, Ph.D. completed a Psychiatric Review Technique form for plaintiff on
April 24, 2008. (R. 212-225). She evaluated him for category 12.04, Affective Disorders. The
impairment was rated “not severe.” (R. 212). She rated plaintiff with mild restriction in activities
of daily living, maintaining social functioning, and maintaining concentration, persistence, or
pace. No episodes of decompensation were found. (R. 222). In her notes, Dr. Gerrity first noted
plaintiff did not allege any mental problems in his initial application documents, but alleged
“‘more anxiety and depression’, and ‘confused [and] can’t remember things’” at the
reconsideration level. She discussed several pieces of evidence from plaintiff’s records, and
summarized Dr. LaGrand’s mental consultative examination. (R. 224). Dr. Gerrity also
completed a Case Analysis form the same date, noting a not severe rating on plaintiff’s
psychiatric diagnosis for category 12.04. (R. 211).
Ernestine Shires, M.D. completed a Case Analysis form for plaintiff’s physical
allegations on April 24, 2008 affirming the physical RFC assessment by Dr. Woodcock dated
December 17, 2007. (R. 226).
Next, plaintiff’s medical records jump forward to April 20, 2009, when Kevin Baker,
D.O., of OSU Medical Center, reviewed an x-ray of plaintiff’s abdomen on complaints of
abdominal pain. Dr. Baker’s impression was “probable right mid and upper small bowl ileus;3
recommend clinical follow up.” (R. 244). He was discharged April 21, 2009 with medications
and instructions regarding both his blood pressure and sugar levels, with no activity level
3
An ileus is a type of obstruction. See http://medical-dictionary.thefreedictionary.com/ileus, last
visited April 23, 2012.
8
restrictions beyond “exercise/activity as tolerated.” (R. 228). Records indicate plaintiff visited
OSU Medical Center eight times between April 21, 2009 and August 4, 2009.4 (R. 229-253). His
complaints of stomach pain were evaluated by Brian C. Diener, D.O., who recommended an
esophageal scope procedure and a CT scan. (R. 246-249). Plaintiff was diagnosed by various
doctors at OSU with uncontrolled diabetes mellitus, diabetic neuropathy, tobacco abuse, and
uncontrolled high blood pressure. (R. 232, 237, 239, 241, 243). Medications were prescribed and
adjusted during this time. One chart notation mentions plaintiff has a history of drug and alcohol
abuse. (R. 242).
Procedural History
Plaintiff alleges his disabling impairments include hypertension, diabetes, neuropathy
pain, dizziness, and depression. (R. 95, 114, 124). In assessing plaintiff’s qualifications for
disability, the ALJ determined plaintiff had not engaged in substantial gainful activity since his
application date of August 6, 2007. At step two, he found plaintiff suffered the severe
impairments of diabetes mellitus and peripheral neuropathy. Applying the “special technique” at
step two, the ALJ determined plaintiff’s “medically determinable mental impairment of
depression does not cause more than minimal limitation in the claimant’s ability to perform basic
mental work activities and is therefore nonsevere.” (R. 12). At step three, the ALJ determined
plaintiff’s impairments, singularly and in combination, did not meet or equal a listed impairment,
focusing on listing 9.08, Diabetes Mellitus. (R. 13).
Before moving to step four, the ALJ found plaintiff retained the residual functional
capacity (“RFC”) to perform the full range of medium work “as defined in 20 C.F.R.
416.967(c),” that he could lift and/or carry 50 pounds occasionally, 25 pounds frequently, and
4
Plaintiff’s attorney submitted these records to the Appeals Council on August 24, 2009. (R.
230).
9
stand, walk, or sit for a total of six hours of an eight hour workday. Id. At step four, the ALJ
found plaintiff was unable to perform any of his previous work, but at step five, found jobs in
significant numbers plaintiff was capable of performing, thereby finding him not disabled from
August 6, 2007 through June 23, 2009, the date of his decision. (R. 15-16).
Issues Raised
Plaintiff’s allegations of error are as follows:
1. The ALJ failed to make a proper determination at step five of the sequential
evaluation process,
2. The ALJ failed to properly consider the medical evidence of record, and
3. The ALJ failed to perform a proper credibility determination.
(Dkt. # 12 at 1).
Discussion
The ALJ’s Step 5 Analysis
Plaintiff’s step five allegation of error is two-fold. First, plaintiff alleges that the ALJ
improperly applied the Medical-Vocational Guidelines (“Grids”) by failing to consider plaintiff’s
nonexertional impairments of pain and depression. His second step five allegation of error is that
the ALJ failed to consider all of plaintiff’s impairments throughout all five steps, consequently
determining a faulty RFC. Plaintiff argues the ALJ failed to include his nonexertional limitations
of mental impairments (although mild), and pain in his RFC determination, and further failed to
consider the same impairments in his application of the Grids. (Dkt. # 12 at 2-3). Defendant
counters by presenting several arguments that appear to “bridge the gap” for the ALJ, which is
not permitted. (Dkt. # 16 at 2). The Court finds plaintiff’s arguments to be persuasive.
Plaintiff argues it was improper for the ALJ to apply the Grids conclusively to determine
plaintiff was not disabled because plaintiff’s nonexertional impairments of pain, dizziness,
lightheadedness, and mild mental impairment were not taken into account. Defendant counters
10
that if a claimant’s nonexertional impairments do not significantly reduce the range of available
jobs, an ALJ is permitted to rely conclusively on the Grids, citing Evans v. Chater, 55 F.3d 530,
532-533 (10th Cir. 1995). Defendant also argues plaintiff is required to show more than the
presence of an impairment, citing Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997).
“[A]n ALJ may not rely conclusively on the grids unless he finds ... that the claimant has
no significant nonexertional impairment,” and the finding is supported by substantial evidence.
Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir.1993).
SSR 96-7p identifies seven areas to be evaluated to assist the ALJ in accurately assessing
a claimant’s symptoms. These include daily activities; the location, duration, frequency, and
intensity of pain or other symptoms; factors that bring on and aggravate the symptoms;
medications used and their side effects, etc.; treatment other than medication for relief; any other
measures tried for relief; and any other factors regarding functional limitations and/or restrictions
due to pain or other symptoms. SSR 96-7p, 1996 WL 374186. Although the record clearly
supports the ALJ’s application of the grids when considered in light of the foregoing factors, the
ALJ failed to explain his findings in these areas. Thus, the Court must remand for the ALJ to
explain how plaintiff’s nonexertional impairments of pain,5 and mild mental impairment impact
his decision at step five, if at all.
Regarding his RFC determination, plaintiff argues the ALJ failed to include his
nonexertional limitations of mental impairments (although mild), and pain. (Dkt. # 12 at 2-3).
Defendant counters by stating “[a] hypothetical question need only include the limitations in the
5
Just a diagnosis of diabetic neuropathy is not objective medical evidence of pain from the
condition. The Court recognizes diabetic neuropathy can be present with or without pain. Nerve
tests can be performed for a proper evaluation any nerve damage and/or pain. From a thorough
review of the record, the Court fails to find any objective tests that confirm plaintiff’s subjective
complaints of pain.
11
properly determined RFC finding. Gay v. Sullivan, 986 F.2d 1336, 1341 (10th Cir. 1993).” (Dkt.
# 16 at 2). The plaintiff’s arguments have merit.
At step two, the ALJ determined plaintiff had the severe impairments of diabetes mellitus
and peripheral neuropathy, both of which are well documented in the record. Next, still at step
two, the ALJ considered plaintiff’s mental impairment of depression. After applying the “special
technique,” he determined plaintiff’s depression imposed no more than a minimal limitation on
his ability to perform basic work activity. (R. 12-13).
At step two, the burden of proof belongs to the plaintiff.6 Plaintiff’s records show two
visits to CREOKS Mental Health Center early in 2008, with no record of any mental health
treatment before or after. (R. 193-203). On a Disability Report-Appeal form, plaintiff reported he
was taking Paxil and Trazodone for depression, prescribed by Dr. Vanessa Werlla at CREOKS.
(R. 126). There are several notations in the medical records of complaints or diagnoses of
depression from plaintiff and his various doctors. (R. 181, 186, 188, 204, 206, 208, 224, 247).
The only examining opinion evidence in the record regarding plaintiff’s mental health is the
consultative examination performed by Dr. LaGrand on April 1, 2008. Dr. LaGrand’s
examination results appear to be, in large part, the basis for Dr. Gerrity’s conclusions as stated in
the Psychiatric Review Technique form. Dr. Gerrity rated plaintiff as having mild restriction in
activities of daily living, maintaining social functioning, and maintaining concentration,
persistence, or pace, and he found no episodes of decompensation, which are the restrictions the
6
A claimant for disability benefits bears the burden of proving a disability. 42 U.S.C. § 423
(d)(5); 20 C.F.R. § 416.912(a).
12
ALJ adopted at step two to find plaintiff’s depression to be nonsevere.7 (R. 12-13, 222). The
ALJ’s step two determination is supported by the record and is affirmed.
However, the only RFC discussion of plaintiff’s mild mental impairments and pain is
found in what appears to be the ALJ’s credibility explanation, where the ALJ states:
Mr. Stromp has few treatment records and no longitudinal history of treatment.
Consultative psychologist Denise, LaGrand, Psy.D. opined after seeing the
claimant that his application seemed to be based primarily on physical factors.
She believed that his capacity to cope with the typical mental/cognitive demands
of basic work-like tasks was adequate. Dr. LaGrand did not perceive Mr. Stromp
having significant problems with persistence or pace (Exhibit 7F, p. 5). From
CREOKS, where he received mental health assistance in the first three months of
2008, Mr. Stromp was diagnosed with depression and anxiety. But, he claimed he
got along with others fairly well and that he had a good relationship with his livein girlfriend (Exhibit 6F, p. 1). Except for some mental abuse in his youth from
his father, there did not appear to be any history of psychological trauma (Exhibit
6F, p. 8).
The claimant’s most limiting impairment appears to be diabetic neuropathy. Yet,
there is scant evidence of treatment for the condition. Dr. LaGrand observed that
Mr. Stromp denied having any difficulty with dressing, preparing food, shopping,
driving, or performing household chores. He had apparently abandoned hunting,
fishing, and sports because of alleged pain. But, Dr. LaGrand wrote that she had
not seen him having any noticeable physical handicap. His posture, gait, and
motor activity were normal while his thought process showed no indication of
active psychosis (Exhibit 7F, p. 3).
(R. 14). Although the ALJ’s analysis is sufficient, he failed to mention how his analysis impacted
his RFC determination, if at all. Thus, the Court is unable to determine whether the ALJ found
that plaintiff’s non-exertional limitations do not impact plaintiff’s RFC or whether he simply
forgot to take them into account.
Medical Evidence Analysis
Initially, plaintiff challenges the opinion weight assigned to the medical opinions in the
record; however, he then attempts to introduce a new diagnosis of a somatoform disorder as an
7
The ALJ’s analysis at step two is affirmed.
13
overlooked issue. After a careful review of the record, the Court notes plaintiff was never
diagnosed by any physician with a somatoform disorder and declines to instruct the ALJ to
assume one on remand. However, the Court finds plaintiff’s argument as to the weight given to
the medical opinions in the record to have merit.
As to plaintiff’s physical impairments, the ALJ appears to give some weight to the
opinion of consultative examiner “Nelson Onaro, D.O.,” stating Dr. Onaro:
… listed the claimant’s symptoms in a consultative evaluation report dated
November 7, 2007. These were syncope, dizziness, hypertension, rapid heartbeat,
indigestion, constipation, and gallstones. Mr. Stromp had the full range of motion
in his back, neck, and joints. His heel/toe walking was difficult but within normal
limits. Grip strength was 5/5 bilaterally and firm. The claimant was able to
perform gross and fine tactile manipulation (Exhibit 2F).
(R. 14-15). Although the agency consultative examination was performed on November 7, 2007,
it was performed by Ronald Schatzman, M.D., not Nelson Onaro, D.O. In addition, the
symptoms the ALJ recited as plaintiff’s complaints were not his primary complaints. His primary
complaints to Dr. Schatzman consisted of “diabetes mellitus, hypertension, and peripheral
neuropathy.” Plaintiff complained of falls in the past, and informed Dr. Schatzman that he was
previously employed working on “high towers.” (R. 166). Dr. Schatzman noted plaintiff’s
“review of systems is remarkable for diabetes, fainting, dizzy spells, muscle pain, indigestion,
constipation, gallstones, hypertension, and rapid heartbeat.” Id. Dr. Schatzman diagnosed
plaintiff with hypertension, diabetes mellitus, peripheral neuropathy, tobacco abuse, and possible
prior ethanol abuse. (R. 168).
The ALJ only mentions plaintiff’s treating physicians at Morton Comprehensive Health
Services to note these physicians “urged [plaintiff] to cease his pack a day smoking habit of over
25 years (Exhibit 4F, p. 2). There were no overt problems concerning his breathing and/or lung
capacity.” (R. 14). Plaintiff’s complaints to Morton Health, however, related to his diabetes,
14
neuropathy, pain, and heartburn. He was diagnosed with Type 2 diabetes, diabetic neuropathy,
GERD, and “smoking cessation.” (R. 181). He received a referral to “pain management for his
chronic pain,” was instructed to continue his present medications, and placed on additional
prescription medications for GERD and pain. (R. 182).
The ALJ failed to fully discuss any of this evidence, and failed to explain the weight
given to any opinion. It appears he relied very heavily on the consultative mental examination
performed by Dr. LaGrand, and the physical RFC form completed by Dr. Woodcock; and
somewhat on the consultative physical examination of Dr. Schatzman, but the ALJ must explain
his reasoning in a manner that does not leave areas of speculation open to the Court. Therefore,
the Court remands this issue to the ALJ to explain what weight he afforded the opinion evidence
of Dr. Schatzman’s consultative physical examination (R. 166-171); Dr. LaGrand’s mental
consultative examination (R. 204-210); Dr. Woodcock’s physical RFC opinion; as well as what
evidence he chose not to rely on in formulating his ultimate RFC determination.
Credibility
Finally, plaintiff complains the ALJ failed to properly consider his credibility. The Court
disagrees. “Credibility determinations are peculiarly the province of the finder of fact, and we
will not upset such determinations when supported by substantial evidence. However, [f]indings
as to credibility should be closely and affirmatively linked to substantial evidence and not just a
conclusion in the guise of findings.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)
(quotation and citation omitted). The ALJ must “explain why the specific evidence relevant to
each factor led him to conclude claimant’s subjective complaints were not credible.” Id. The ALJ
is allowed to consider objective factors, such as attempts to find relief, use of medications,
15
regular contact with doctors, and daily activities when determining a claimant’s credibility. Luna
v. Bowen, 834 F.2d 161, 165-66 (10th Cir. 1987).
Here, the ALJ found as follows:
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected
to cause the alleged symptoms; however, the claimant’s statements concerning
the intensity, persistence and limiting effects of these symptoms are not
credible to the extent they are inconsistent with the above residual functional
capacity assessment
Mr. Stromp has few treatment records and no longitudinal history of
treatment. Consultative psychologist Denise LaGrand, Psy.D. opined after
seeing the claimant that his application seemed to be based primarily on
physical factors. She believed that his capacity to cope with the typical
mental/cognitive demands of basic work-like tasks was adequate. Dr.
LaGrand did not perceive Mr. Stromp having significant problems with
persistence or pace (Exhibit 7F, p. 5). From CREOKS, where he received
mental health assistance in the first three months of 2008, Mr. Stromp was
diagnosed with depression and anxiety. But, he claimed he got along with
others fairly well and that he had a good relationship with his live-in girlfriend
(Exhibit 6F, p. 1). Except for some mental abuse in his youth from his father,
there did not appear to be any history of psychological trauma (Exhibit 6F, p.
8).
The claimant’s most limiting impairment appears to be diabetic neuropathy.
Yet, there is scant evidence of treatment for the condition. Dr. LaGrand
observed that Mr. Stromp denied having any difficulty with dressing,
preparing food, shopping, driving, or performing household chores. He had
apparently abandoned hunting, fishing, and sports because of alleged pain.
But, Dr. LaGrand wrote that she had not seen him having any noticeable
physical handicap. His posture, gait, and motor activity were normal while his
thought process showed no indication of active psychosis (Exhibit 7F, p. 3).
(R. 14-15). Clearly, the ALJ linked his credibility determination to specific evidence in the
record. Given the deference afforded the ALJ in this area, the Court affirms his credibility
determination.
16
Conclusion
For the foregoing reasons, this case is REVERSED and REMANDED for further
consideration.
SO ORDERED this 3rd day of May, 2012.
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?