Prince v. Social Security Administration
Filing
17
OPINION AND ORDER by Magistrate Judge Paul J Cleary Affirming the Commissioner's decision (kjp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
JACQUELINE ELAINE PRINCE,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of the
Social Security Administration,
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No. 11-CV-208-PJC
OPINION AND ORDER
Claimant, Jacqueline Elaine Prince (“Prince”), pursuant to 42 U.S.C. § 405(g), requests
judicial review of the decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying her applications for benefits under the Social Security Act, 42 U.S.C.
§§ 401 et seq. In accordance with 28 U.S.C. § 636(c)(1) and (3), the parties have consented to
proceed before a United States Magistrate Judge. Any appeal of this order will be directly to the
Tenth Circuit Court of Appeals. Prince appeals the decision of the Administrative Law Judge
(“ALJ”) and asserts that the Commissioner erred because the ALJ incorrectly determined that
Prince was not disabled. For the reasons discussed below, the Court AFFIRMS the
Commissioner’s decision.
Claimant’s Background
At the hearing before the ALJ on January 12, 2010, Prince was 41 years old and had
completed school through the eleventh grade. (R. 45-48). She worked as an in-home healthcare
provider before she stopped working in 2005. (R. 26). Prince indicated in her work history
report that between 1983 and 2005 she had also worked as a cashier and a babysitter. (R. 166).
Prince testified that she had stopped working because of swelling in her feet and hands, as
well as pain in her back, legs, and hips. (R. 27). She had diabetes and high blood pressure. (R.
31, 37). She had tested her blood sugar level at 210 on the morning of the hearing. (R. 31). A
“sinus mass” had been found in her brain, and Prince attributed headaches, forgetfulness, trouble
with balance, and trouble with vision to the sinus mass. (R. 31-34). She explained that various
treatments had been tried in order to reduce or eliminate the mass, but none had been successful.
(R. 33). Prince said that her gallbladder had been removed, and she described the resulting
restrictions to her diet and indigestion problems. (R. 30, 32). Prince testified that she was blind
in her right eye, and the left eye was strained by compensating for the right. (R. 31). In her
testimony, Prince explained the side effects of her medication. She experienced diarrhea,
excessive tiredness, irritability, skin irritation, and headaches. (R. 29, 31-33).
According to her testimony, Prince’s daily activities included caring for three children:
her two sons and her stepdaughter. (R. 38). She transported them to and from school each day.
Id. The family’s financial support came from governmental housing assistance, disability that
her mentally disabled son received, and some child support. Id. Prince testified that she did
household chores such as dishes and cooking, but she had to sit down during these tasks. (R. 31).
During the hearing, the ALJ confronted Prince with the fact that her medical records from
the Oklahoma State University (“OSU”) Medical Center suggested that she was noncompliant in
taking her medication. (R. 34). Prince denied this and pointed out that the report writer had
performed no blood tests to make this determination. (R. 36).
2
In a computed tomography (“CT”) scan of Prince’s abdomen, dated September 7, 2006,
the laboratory reported that Prince’s liver was enlarged, but there were no other abnormalities.
(R. 258). In November 2006, Prince complained of abdominal pain and underwent a biliary
scan, which “did reproduce the patient’s symptoms of abdominal pain.” ( R 254). In January
2007, Prince continued to complain of abdominal pain, and another biliary ultrasound was
performed. (R. 253). The impression was hepatic steatosis1 with dampened hepatic venous. Id.
There was a recommendation for a CT scan of her abdomen, since the evaluation of the pancreas
had been limited in the ultrasound. Id. During January 2007, a tissue sample from Prince’s
gallbladder was obtained and tested, and the diagnoses were acalculus chronic cholecystitis2 and
diverticulae extending deeply into the wall of the gallbladder. (R. 251).
Prince saw Margaret Stripling, M.D., on May 23, 2007. (R. 245). Dr. Stripling noted that
Prince had pain from an enlarged liver, low back pain, and lower abdominal pain. Id. Prince
rated the pain at a 9 or 10 on a scale from 0 to 10. Id. Her weight was 255 pounds, and her
blood pressure was 150/100. Id. Dr. Stripling’s assessment was that Prince had hypertension,
back pain, and asthma. Id. Dr. Stripling prescribed Lisinopril,3 Lortab,4 Micardis,5 and Actos.6
Prince next saw Dr. Stripling on June 11, 2007, and Dr. Stripling’s diagnoses continued to be
1
Steatosis is: “Fatty degeneration; disease of the sebaceous glands.” Taber’s Cyclopedic
Medical Dictionary 1870 (17th ed. 1993).
2
Cholecystitis is: “Inflammation of the gallbladder.” Taber’s Cyclopedic Medical
Dictionary 1870 (17th ed. 1993).
3
Lisinopril is used to treat hypertension. www.pdr.net
4
Lortab is used to treat pain. www.pdr.net
5
Micardis is used to treat hypertension. www.pdr.net
6
Actos is used to improve glycemic control for adults with type II diabetes. www.pdr.net
3
hypertension and back pain. (R. 244). It appears that the medications were unchanged. Id.
Prince’s weight was the same, and her blood pressure was 130/100. Id. Prince had an
appointment with Dr. Stripling on July 3, 2007. Id. Dr. Stripling noted that Prince could not
bend, continued to complain of pain, and needed to see an eye doctor. Id. Dr. Stripling’s
assessment and plan remained unchanged, other than to add a prescription for Caduet.7 Id.
Prince had an office visit with Dr. Stripling on January 9, 2008. (R. 241). Dr. Stripling
diagnosed Prince with hypertension, back and neck pain, and type II diabetes. Id. Medications
remained the same. Id. Prince’s blood pressure was 139/61. Id. Prince complained of back
pain, “knots” in her back, and stomach problems during her March 5 and March 7 office visits
with Dr. Stripling. (R. 240). Dr. Stripling’s diagnoses and medical prescriptions remained
unchanged, except that on March 7 Dr. Stripling’s “impression/diagnosis” also included
abdominal pain. Id. Prince’s blood pressure was 128/80 on March 5, and was 145/96 on March
7. Id. Prince’s weight was 265 pounds. Id.
An ultrasound was done on March 26, 2008. (R. 282). The ultrasound found interval
cholecystectomy8, diffuse fatty infiltration of the liver, enlarged uterus, no acute intra-abdominal
or pelvic process, and a small umbilical hernia with only fat present. Id.
Prince was examined by agency consultant Keith Patterson, D.O., on April 1, 2008. (R.
232-37). Dr. Patterson reported that Prince was cooperative and intelligible. (R. 233). He noted
that she could move all extremities well, could perform fine tactile manipulations, could move
7
Caduet is used to treat hypertension. www.pdr.net
8
There are no medical records in the Administrative Transcript regarding the removal of
Prince’s gallbladder. Presumably, the procedure occurred sometime between the January 2007
testing of her gallbladder and the March 2008 ultrasound.
4
about the exam room easily, and could ambulate with a stable gait. Id. Her weight was 267
pounds, and her blood pressure was 143/106. (R. 232). Dr. Patterson reported that Prince had
pain in her back, neck and shoulders, but that her range of motion was within normal limits. (R.
233). She was obese with a Body Mass Index (“BMI”) of 48. Id. She had type II diabetes and
hypertension. Id. Dr. Patterson instructed Prince to seek emergency medical care for
hypertension. Id.
Prince presented to the OSU Medical Center on April 1, 2008 after seeing Dr. Patterson.
(R. 227). Prince had a headache, high blood pressure, and uncontrolled type II diabetes. Id.
Prince was morbidly obese and appeared older than her stated age of 39. (R. 226). During her
stay, Prince’s blood sugar ranged from 184 to 200. (R. 227). She told the medical personnel that
she had “pain all over body and at all times.” Id. She admitted that she was medically
noncompliant and that she did not take her medication because it made her feel tired. (R. 22627). The report indicated that Prince’s treatment would include resuming medication, teaching
Prince how to manage her diabetes, and encouraging her to improve her diet and exercise and to
stop smoking. (R. 227).
Dr. Stripling saw Prince on April 4, 2008. (R. 239). Prince’s blood pressure was
164/107. Id. Dr. Stripling noted that Prince had been hospitalized for a day for back pain and
diabetes. Id. Dr. Stripling’s diagnoses and treatment plan remained unchanged, other than
adding allergic rhinitis/sinus to the diagnoses. Id. On April 29, 2008, Prince came to Dr.
Stripling’s office to discuss lab work results. (R. 238). At the time, Prince’s blood pressure was
165/109. Id. In addition to Prince’s other medications, Dr. Stripling listed Lantus9 and
9
Lantus is used to improve glycemic control for patients with diabetes. www.pdr.net
5
Bystolic.10 At an office visit on May 6, 2008, Dr. Stripling observed that Prince had a painful,
itchy rash, and she also had head pain. (R. 238). Prince weighed 260 pounds, and her blood
pressure was 142/96. Id. Dr. Stripling’s diagnoses and prescriptions for Prince remained the
same. Id. On June 11, 2008, Dr. Stripling noted that Prince had hearing loss and eye trouble. Id.
Her blood pressure was 137/90, and her weight was 262 pounds. Id. The diagnoses continued
to be hypertension, diabetes, and abdominal pain, and Prince continued to be treated with several
medications. Id. Prince had a checkup on July 8, 2008. (R. 280). She complained of leg pain,
and she also reported that she had seen an eye doctor about her vision problems and that the
doctor referred her to a neurologist because of possible nerve damage to the eyes. Id.
Medications remained unchanged, and Dr. Stripling indicated that Prince had hypertension,
diabetes, and allergic rhinitis or sinus issues. Id. Dr. Stripling noted that she spent time during
the April 4 and July 8, 2008 office visits teaching Prince how to take medication for diabetes and
hypertension. (R. 239, 280).
On October 1, 2008, Prince underwent a magnetic resonance imaging (“MRI”) scan of
her brain. (R. 273-74). The MRI found that there was “significant paranasal sinus disease with
inflammation within the right frontal sinus, both right and left anterior ethmoid air cells (more
pronounced on the right side), as well as bilateral mucosal changes within the floor of the
maxillary sinuses.” Id. Wes McFarland, D.O., examined Prince on October 30, 2008 at the Ear,
Nose & Throat Clinic of Tulsa. (R. 285-86). He listed her diagnoses as chronic sinusitis,11
10
Bystolic is used to treat hypertension. www.pdr.net
11
Sinusitis is inflammation of the sinus. Taber’s Cyclopedic Medical Dictionary 1870
(17th ed. 1993).
6
allergic rhinitis,12 hypertrophy of turbinates13 with obstruction, and diabetes. (R. 285). He
recommended allergy testing, bilateral maxillary and anterior ethmoidectomy,14 and turbinate
reduction. Id. On December 29, 2008, Prince underwent a sinus-facial CT scan at the OSU
Medical Center. (R. 335). The impression was osteomeatal units filled with mucoid material
bilaterally, bilateral medial antrostomies noted, and mucoid material seen in the bilateral
maxillary, bilateral ethmoid, and right frontal sinuses without air-fluid levels. Id.
On July 3, 2008 and January 30, 2009, Prince received eye examinations after being
referred to Eye Care Associates by Dr. Stripling. (R. 311-20). During the first visit, Prince
reported seeing “flashes” and seeing “floaters all the time.” (R. 311). The detailed notes are
difficult to read, but the examiner did note that an MRI revealed a sinus mass. (R. 315). The
examiner noted during the January 30, 2009 appointment that Prince complained that her vision
“seems to be getting worse, blurry until mid-day,” whereas her complaint during her previous
visit had been blurriness mostly in the morning. Id.
Prince had a checkup with Dr. Stripling on October 7, 2008 regarding her paranasal sinus
disease, hypertension, and diabetes. (R. 274). Dr. Stripling added Levaquin15 to the prescriptions
12
Rhinitis is inflammation of the nasal mucosa. Taber’s Cyclopedic Medical Dictionary
1870 (17th ed. 1993).
13
“Turbinate hypertrophy is due to an enlargement of the turbinates - the small structures
within your nose that cleanse and humidify air as it passes through your nostrils into your lungs.”
Johns Hopkins Sinus Center, 2008,
http://www.hopkinsmedicine.org/sinus/sinus_conditions/septal_deviations.html.
14
An ethmoidectomy is the “excision of ethmoid cells that open into nasal cavity.”
Taber’s Cyclopedic Medical Dictionary 1870 (17th ed. 1993).
15
Levaquin can be used to treat a number of ailments, including acute bacterial sinusitis.
www.pdr.net
7
Prince already had. Id. Prince saw Dr. Stripling from November 2008 through June 2009
regarding her paranasal sinus disease, hypertension, diabetes, and anxiety, and her medications
continued unchanged. (R. 306-29). On June 26, 2009, Prince underwent another abdominal CT
scan, which again showed an enlarged liver. (R. 305).
In October 2009, Prince underwent a sleep study, which found that she had mild sleep
apnea. (R. 339-42). Liphard D’Souza, M.D., who performed the study, wrote that Prince had
mild sleep apnea hyponea and sleep disordered breathing syndrome. (R. 340). Prince’s morbid
obesity and poor sleep hygiene likely exacerbated the sleep ailment. Id. Dr. D’Souza
recommended further evaluation, including a night of “CPAP/BiPAP titration analysis under
Lunesta.” Id. Dr. D’Souza also recommended avoidance of driving until Prince no longer had
excessive daytime sleepiness. Id.
After the hearing before the ALJ on January 12, 2010 and ALJ’s decision on January 27,
2010, Prince saw Sam Worrall, D.O., several times. (R. 351-57). Prince saw Dr. Worrall on
January 27, 2010 to discuss options to treat her sinus problems, including possible surgical
options. (R. 351-53). At Dr. Worrall’s referral, she underwent another CT scan on February 2,
2010 to examine her paranasal sinuses. (R. 356). The appearance of the sinuses continued to be
“suspicious for inflammatory sinus disease.” Id.
On March 31, 2010, Prince was examined at Midtown EyeCare, LLC. (R. 375-77). That
office referred her to ophthalmologist Lars Freisberg, M.D., who could provide consultation
regarding concerns about the potential for retinal detachment. (R. 376). Dr. Freisberg found that
Prince had a visual acuity of 20/200 in her right eye and 20/60 in her left eye. (R. 378). Dr.
Freisberg wrote that he “would be hard pressed to have a definite explanation as to why the
vision in the right eye is somewhat limited” and recommended further monitoring of Prince. (R.
8
379). On August 11, 2010, Prince returned to Midtown EyeCare, complaining of “flashes” and
“floaters” in vision, as well as lids tightening. (R. 380). Kyle Craig, O.D., prescribed a treatment
plan that included continued monitoring of Prince, directions for Prince to come in immediately
if symptoms worsened, and education about symptoms of retinal detachment. (R. 381).
Records from the OSU Medical Center from August 20, 2010 indicate that Prince was
seen to evaluate whether she had ulcers, dysphagia,16 and chronic heartburn. (R. 387-91).
Ernestine Shires, M.D., a nonexamining agency medical consultant, completed a Physical
Residual Functional Capacity Assessment for Prince on August 8, 2008. (R. 262-69). Dr. Shires
determined that Prince could occasionally lift and/or carry 50 pounds and frequently lift and/or
carry 25 pounds. (R. 263). She could stand, walk, and sit for about six hours in an eight hour
workday. Id. Dr. Shires found no limits in Prince’s ability to use hand and/or foot control or to
push or pull. Id. For narrative explanation, Dr. Shires described Prince’s “alleged ailments” as
hypertension, diabetes, and problems with vision, hips, legs, shoulder, stomach, and liver. Id.
Dr. Shires had requested medical evidence of record (“MER”) from Dr. Stripling, but had not
received it. Id. Dr. Shires did review and mention Prince’s records from her April 2008 stay at
the OSU Medical Center, when Prince had been treated for elevated blood pressure. Id. Dr.
Shires wrote that Prince had admitted medical noncompliance. Dr. Shires briefly reviewed and
discussed Dr. Patterson’s report from his examination of Prince, including his findings that
Prince’s heart and lung functions were normal, and that she had a BMI of 48. (R. 263-64). Dr.
Shires referenced Dr. Patterson’s report that Prince could use all her extremities well, perform
fine tactile manipulation, walk with a normal gait, and had excellent grip and toe strength. (R.
16
Dysphagia is “inability to swallow or difficulty in swallowing.” Taber’s Cyclopedic
Medical Dictionary 1870 (17th ed. 1993).
9
264). In her assessment, Dr. Shires reported no postural, manipulative, visual, communicative,
or environmental limitations. (R. 262-69). On December 9, 2008, Kenneth Wainner, M.D., a
nonexamining, agency consultant, wrote a report reconsidering all the medical evidence in
Prince’s case and affirming Dr. Shires’ assessment. (R. 287).
On January 8, 2010, Gwendolyn Montes, ARNP, of Dr. Stripling’s office filled out a
form entitled “Residual Functional Capacity To Do Work Related Activities.” (R. 343-46). This
assessment reported that at any one time and during an entire day Prince could sit for 10-30
minutes, stand for five minutes, and walk for less than five minutes. (R. 343). It indicated that
Prince could occasionally lift and/or carry up to five pounds. Id. According to this assessment,
Prince could occasionally bend, crawl, reach, and perform gross and fine manipulations with both
hands. (R. 344). She could never squat. Id. Prince could never be exposed to unprotected
heights, moving machinery, marked changes in temperatures and humidity, dust, fumes, gases,
driving, and vibrations. Id. The assessment explained that pain, insulin dependence, and other
medications would prevent Prince from working on a sustained and continuing basis. (R. 344).
Procedural History
Prince filed applications for Title II disability insurance benefits and Title XVI
supplemental security income benefits, 42 U.S.C. §§ 401 et seq. (R. 149-53). Prince alleged
onset of disability as April 10, 2008. (R. 149). The applications were denied initially and on
reconsideration. (R. 50-58). A hearing before ALJ John Volz was held on January 12, 2010 in
Tulsa, Oklahoma. (R. 23-44). By decision dated January 27, 2010, the ALJ found that Prince
was not disabled. (R. 12-18). On February 15, 2011, the Appeals Council denied review of the
ALJ’s findings. (R. 1-5). Thus, the decision of the ALJ represents the Commissioner’s final
decision for purposes of this appeal. 20 C.F.R. §§ 404.981, 416.1481.
10
Social Security Law and Standard of Review
Disability 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 claimant is disabled under the Act only if his
“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 implement a five-step sequential process to evaluate a disability
claim. 20 C.F.R. § 404.1520.17 See also Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)
(detailing steps). “If a determination can be made at any of the steps that a claimant is or is not
disabled, evaluation under a subsequent step is not necessary.” Id.
Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §
405(g). This Court’s review is limited to two inquiries: first, whether the decision was supported
by substantial evidence; and, second, whether the correct legal standards were applied. Hamlin v.
17
Step One requires the claimant to establish that he is not engaged in substantial gainful
activity, as defined by 20 C.F.R. § 404.1510. Step Two requires that the claimant establish that
he has a medically severe impairment or combination of impairments that significantly limit his
ability to do basic work activities. See 20 C.F.R. § 404.1520(c). If the claimant is engaged in
substantial gainful activity (Step One) or if the claimant’s impairment is not medically severe
(Step Two), disability benefits are denied. At Step Three, the claimant’s impairment is compared
with certain impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App.1 (“Listings”). A claimant
suffering from a listed impairment or impairments “medically equivalent” to a listed impairment
is determined to be disabled without further inquiry. If not, the evaluation proceeds to Step Four,
where the claimant must establish that he does not retain the residual functional capacity
(“RFC”) to perform his past relevant work. If the claimant’s Step Four burden is met, the burden
shifts to the Commissioner to establish at Step Five that work exists in significant numbers in the
national economy which the claimant, taking into account his age, education, work experience,
and RFC, can perform. See Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001). Disability
benefits are denied if the Commissioner shows that the impairment which precluded the
performance of past relevant work does not preclude alternative work. 20 C.F.R. § 404.1520.
11
Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (quotation omitted).
Substantial evidence is such evidence as a reasonable mind might accept as adequate to
support a conclusion. Id. The court’s review is based on the record taken as a whole, and the
court will “meticulously examine the record in order to determine if the evidence supporting the
agency’s decision is substantial, taking ‘into account whatever in the record fairly detracts from
its weight.’” Id., quoting Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). The court
“may neither reweigh the evidence nor substitute” its discretion for that of the Commissioner.
Hamlin, 365 F.3d at 1214 (quotation omitted).
Decision of the Administrative Law Judge
The ALJ found that Prince’s date last insured was September 30, 2008. (R. 14). At Step
One, the ALJ found that Prince had not engaged in substantial gainful activity since April 10,
2008, the alleged onset date. Id. At Step Two, the ALJ found that Prince’s diabetes mellitus,
sleep apnea, and hypertension constituted severe impairments. Id. At Step Three, the ALJ found
that none of these impairments nor any combination of these impairments met the requirements
of a Listing. Id.
The ALJ found that Prince had the RFC to perform the full range of medium work. (R.
15). At Step Four, the ALJ found that Prince was capable of performing past relevant work as a
home health aide, cashier/checker or babysitter. (R. 17). At Step Five, as an alternative finding,
the ALJ found that there were jobs in significant numbers in the national economy that Prince
could perform, taking into account her age, education, work experience, and RFC. (R. 18).
Therefore, the ALJ found that Prince was not disabled from April 10, 2008 through the date of
his decision. Id.
12
Review
Prince asserts that the ALJ erred by failing to properly consider and evaluate medical
source evidence, failing to make a proper credibility assessment, and failing to consider the effect
of obesity on Prince’s ability to work. Plaintiff’s Opening Brief, Dkt. #12, p. 2. Regarding the
issues raised by Prince, the undersigned finds that the ALJ’s decision is supported by substantial
evidence and complies with legal requirements. Therefore, the ALJ’s decision is affirmed.
Medical Opinion Evidence
The first issue addressed by Prince is whether the ALJ properly considered the medical
opinion evidence provided by Prince’s physician.18 Plaintiff’s Opening Brief, Dkt. #12, p. 2. A
treating physician opinion must be given controlling weight if it is supported by “medically
acceptable clinical and laboratory diagnostic techniques,” and it is not inconsistent with other
substantial evidence in the record. Hamlin, 365 F.3d at 215; see also 20 C.F.R. §§
404.1527(d)(2) and 416.927(d)(2). Even if the opinion of a treating physician is not entitled to
controlling weight, it is still entitled to deference and must be weighed using the appropriate
factors set out in Sections 404.1527(d) and 416.927(d). Langley v. Barnhart, 373 F.3d 1116,
1119 (10th Cir. 2004). The ALJ is required to give specific reasons for the weight he assigns to a
treating physician opinion, and if he rejects the opinion completely, then he must give specific
legitimate reasons for that rejection. Id. When a treating physician’s opinion is inconsistent with
other medical evidence, it is the job of the ALJ to examine the other medical reports to see if they
18
Because the parties do not raise the issue of whether it was proper for the ALJ to
attribute the opinion to Dr. Stripling in spite of its being written and signed by the ARNP, the
undersigned accepts the ALJ’s attribution of the opinion to Dr. Stripling for purposes of the
Court’s analysis. Plaintiff’s Opening Brief, Dkt. #12, p. 2; Defendant’s Response Brief, Dkt.
#13, p. 4.
13
outweigh the treating physician’s report, not the other way around. Hamlin, 365 F.3d at 1215
(quotation omitted).
The undersigned finds that the ALJ’s analysis was adequate and supported his decision to
reject “Dr. Stripling’s limitations for the claimant [and] her opinion that Ms. Prince cannot
sustain a regular work week.” (R. 16). The ALJ pointed out there was no basis in the medical
records for the assessment that Prince could not lift more than five pounds and could only stand
or walk for around five minutes at a time and five minutes in a total workday. Id. Similarly, the
ALJ found that there was no basis for restricting Prince from all environmental hazards. Id.
Finally, the ALJ reasoned that the nature of Dr. Stripling’s treatment had not given her a basis for
finding that Prince would likely be absent from work as many as three times a month. Id.
This analysis represents the ALJ’s examination of the relevant factors. Goatcher v. U. S.
Dep’t Health and Human Servs., 52 F.3d 288, 290 (10th Cir. 1995); 20 C.F.R. §§ 404.1527.
Within that analysis, the ALJ addressed many factors, such as “the length of the treatment
relationship and the frequency of examination,” “the nature and extent of the treatment
relationship,” the “supportability” of the opinion, and the “consistency” between Dr. Stripling’s
opinion and the rest of the record. Id. The ALJ gave more than a mere conclusion that Dr.
Stripling’s opinion had an insufficient medical basis, and he explained specifically what parts of
Dr. Stripling’s opinion lacked support.
The ALJ’s finding is supported by substantial evidence in the record. The narrative
explanation of Dr. Stripling’s RFC assessment fails to connect medical evidence to Prince’s
restrictions. (R. 343-46). In fact, in the substantial space provided on the form to explain the
medical findings that support the assessment, the ARNP wrote only, “See labs.” (R. 346). The
ARNP did “explain” some of the restrictions. (R. 346). For example, the assessment explained
14
that “upper and low back pain may prevent [Prince] from sitting for long periods of time.” (R.
345). However, as the ALJ correctly recognized, such explanations cannot replace medical
support such as tests or specific observations that tend to prove that a condition exists. “The ALJ
duly cited and discussed” Dr. Stripling’s opinion, and his rejection of her opinion was justified.
Balthrop v. Barnhart, 116 Fed. Appx. 929, 932-33 (10th Cir. 2004) (unpublished). The ALJ’s
analysis provided a sufficient basis for review, and he gave “good reasons” for his assessment of
the weight due to Dr. Stripling’s opinion. Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir.
2003).
Prince argues that the ALJ’s reasons for rejecting Dr. Stripling’s opinion as controlling
were insufficient because the ALJ did “not even mention ‘controlling weight.’” Plaintiff’s
Opening Brief, Dkt. #12, p. 2. Apparently, Prince believes that the ALJ must use certain
language in her or her opinion; however, there is no such requirement. Doyal v. Barnhart,
331 F.3d 758, 761 (10th Cir. 2003) (holding that “the form of words should not obscure the
substance of what the ALJ actually did”). It is amply clear from the ALJ’s language that he
found that Dr. Stripling’s opinion was not controlling.
Prince argues that the ALJ should have explained what weight he gave to Dr. Stripling’s
opinion compared to what weight he gave nontreating, nonexamining consultants’ opinions.
Plaintiff’s Opening Brief, Dkt. #12, pp. 4-5. This is important because even if a treating
physician’s opinion is not controlling, the ALJ must still show how he assigned due deference to
the opinion. Langley, 373 F.3d at 1119. However, even with the obligation to give deference,
the ALJ may still reject completely the opinion of a treating physician. Bales v. Astrue, 374 Fed.
Appx. 780, 783 (10th Cir. 2010) (unpublished) (affirming an ALJ’s decision to reject the opinion
of a treating physician where the physician’s opinion was internally inconsistent and inconsistent
15
with other medical evidence); White v. Barnhart, 287 F.3d 903, 907-08 (10th Cir. 2001)
(affirming an ALJ’s decision to reject the RFC assessment of a treating physician because the
physician’s “examinations of Mrs. White were very limited and did not fully support the very
restrictive functional assessment”).
The ALJ’s opinion makes it clear how he weighed the opinions of the physicians. He did
not give weight to Dr. Stripling’s opinion with regard to Prince’s limitations or inability to
“sustain a regular work week.” (R. 16). The ALJ wrote that his RFC determination was
“supported” by Dr. Shires’ RFC assessment. (R. 17). Thus, while the ALJ did not specifically
state the weight he assigned, he obviously gave Dr. Stripling’s form little if any weight for his
stated reasons, and gave Dr. Shires’ report great weight. Kruse v. Astrue, 436 Fed. Appx. 879,
883 (10th Cir. 2011) (unpublished) (finding that the ALJ’s weighing of medical opinion evidence
was “readily apparent” even though he did not “state a specific weight”). Given his reasoning in
rejecting Dr. Stripling’s opinion and the substantial evidence in record supporting his RFC
finding, the ALJ did not err in his assignment of weight to the opinions of the respective
physicians.
Credibility Determination
Credibility determinations by the trier of fact are given great deference. Hamilton v.
Sec’y of Health & Human Servs., 961 F.2d 1495, 1499 (10th Cir. 1992).
The ALJ enjoys an institutional advantage in making [credibility determinations].
Not only does an ALJ see far more social security cases than do appellate judges,
[the ALJ] is uniquely able to observe the demeanor and gauge the physical
abilities of the claimant in a direct and unmediated fashion.
White, 287 F.3d at 910. In evaluating credibility, an ALJ must give specific reasons that are
closely linked to substantial evidence. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995);
16
Social Security Ruling 96-7p, 1996 WL 374186.
The ALJ found that Prince’s “statements concerning the intensity, persistence and
limiting effects of [her] symptoms are not credible to the extent they are inconsistent with the
above residual functional capacity assessment.”19 (R. 16). The ALJ proceeded to give specific
reasons for his credibility finding. Id.
The ALJ’s credibility assessment was based on discrepancies between Prince’s claim of
disabling back pain and the evidence. He noted the lack of objective medical evidence
supporting the claimant’s allegation of intense back pain, or her claim that she had degenerative
or herniated discs. (R. 16). The ALJ pointed to evidence which showed that, on the contrary,
Prince had good mobility. Id. He referenced evidence from Dr. Patterson’s examination that
Prince could move easily and with a normal gait. (R. 233). These were appropriate and
legitimate reasons to support the ALJ’s finding that Prince’s complaints were not entirely
credible. Harper v. Astrue, 428 Fed. Appx. 823, 828-29 (10th Cir. 2011) (unpublished). In
Harper, the claimant contended that the ALJ performed an erroneous credibility analysis because
he did not highlight evidence of “deceptiveness, equivocation, prevarication, trumpery or guile”
in her statements. Id. at 829. The court found that it was proper for the ALJ's discussion to rely
“on the lack of evidence, not contrary medical evidence.” Id. In the present case, the ALJ did
not refer to evidence that directly contradicted Prince’s testimony, but he appropriately focused
on the lack of evidence to support Prince’s description of her back problems.
19
Prince faulted this language as meaningless boilerplate, but this sentence was merely an
introduction to the ALJ’s analysis and was not harmful. See Kruse, 436 Fed. Appx. at 887
(“boilerplate language is insufficient to support a credibility determination only in the absence of
a more thorough analysis”).
17
Prince argues that the ALJ’s discussion of Prince’s activities of daily living (“ADLs”)
was insufficient, because it only mentioned that she washed dishes and cooked. Plaintiff’s
Opening Brief, Dkt. #12, p. 6. The ALJ did mention these ADLs in his narrative summary of
Prince’s testimony, but he did not rely on them in assessing credibility. (R. 15). Furthermore,
the Plaintiff does not give any examples of ADLs that the ALJ should have discussed or how
these examples should have impacted the ALJ’s credibility determination.
Prince argues that the ALJ should have discussed her complaints of pain, including her
demonstrated painful range of motion and inability to bend. Plaintiff’s Opening Brief, Dkt. #12,
pp. 6-7. The ALJ did discuss Prince’s complaint of “intense” back pain, which allegedly
prevented her from sitting for long periods of time. (R. 15-16). He also addressed these issues
when he discussed the lack of records of degenerative disc disease or herniated discs, and pointed
to evidence of Prince’s physical ability displayed during Dr. Patterson’s physical examination.
(R. 16). The ALJ was not required, in his credibility analysis, to recite all of the references to the
records which gave some support to Prince’s claims of pain.
Prince lists several pieces of evidence that the ALJ “ignored,” including medical
appointments with a podiatrist and orthopedist, a gastrointestinal evaluation, and eye
examinations. Plaintiff’s Opening Brief, Dkt. #12, p. 7. Nothing in these records contradicts the
ALJ’s credibility assessment. In Zaricor-Ritchie, the Plaintiff made a similar argument, asserting
that in assessing credibility the ALJ should have taken into account evidence of her injuries such
as a broken foot and strained neck. Zaricor-Ritchie v. Astrue, 452 Fed.Appx. 817, 824 (10th Cir.
2011) (unpublished). The court found that evidence of these injuries “lends no support to the
credibility of her testimony regarding the severity” of other impairments. Id. Even if records
validated some of Prince complaints, it does not follow that the ALJ would have been required to
18
find that Prince’s other complaints were credible.
Prince raises an issue of whether the ALJ should have more thoroughly addressed her
sleep apnea, which the ALJ found was a severe impairment. Plaintiff’s Opening Brief, Dkt. #12,
p. 7. This type of argument may be appropriate where the plaintiff appeals the RFC assessment,
but Prince did not appeal the RFC determination. It is unclear how this argument regarding
Prince’s sleep apnea relates to Prince’s credibility, which is the issue raised by Plaintiff. The
ALJ acknowledged that Prince underwent a sleep study, which found that her “poor sleep
patterns left her with excessive daytime fatigue.” (R. 16). The undersigned finds that Prince’s
arguments related to sleep apnea are perfunctory and not sufficiently developed to allow
meaningful analysis. They are therefore waived. Wall v. Astrue, 561 F.3d 1048, 1066 (10th Cir.
2009).
Prince argues that the ALJ, in noting that Prince protested her doctors’ assertion that she
was non-compliant in taking her medication for hypertension, failed to comply with the four-part
Frey test.20 Plaintiff’s Opening Brief, Dkt. #12, pp. 7-8. As previously noted, the ALJ gave
relevant reasons for his finding that Prince was not fully credible. After noting these reasons, the
ALJ went on to observe in a separate paragraph that “[t]he record shows that with compliance
Ms. Prince is able to maintain a normal blood pressure.” (R. 16). Thus, it does not appear that
the ALJ used non-compliance as a primary basis for his credibility assessment. Even if he did so,
and even if that was erroneous, which the undersigned does not find, the other legitimate reasons
for finding Prince less than credible would be sufficient to support his assessment. Lax v. Astrue,
20
The prongs of this test are: “(1) whether the treatment at issue would restore claimant's
ability to work; (2) whether the treatment was prescribed; (3) whether the treatment was refused;
and, if so, (4) whether the whether the refusal was without justifiable excuse.” Frey v. Bowen,
816 F.2d 508, 517 (10th Cir.1987).
19
489 F.3d 1080, 1089 (10th Cir. 2007) (in spite of a legally flawed finding by ALJ, there was still
substantial evidence supporting ALJ’s ultimate finding); Tom v. Barnhart, 147 Fed. Appx. 791,
793 (10th Cir. 2005) (unpublished) (ALJ’s improper questioning of treating physician’s
impartiality was not fatal to his discounting of physician’s opinion when he articulated other
legitimate reasons).
Prince argues that the ALJ’s credibility finding warrants reversal because the ALJ failed
to state which portions of Prince’s claims he accepted as true or rejected as untrue. Plaintiff’s
Opening Brief, Dkt. #12, p. 5. Prince cites Hayden v. Barnhart to support the proposition that
the law requires this level of specificity from the ALJ. Hayden v. Barnhart, 374 F.3d 986, 992
(10th Cir. 2004). This “rule” appears nowhere in the Hayden opinion, and the Tenth Circuit
actually appears to reject such an argument in Hayden. Id. Instead, the court in Hayden used
reasonable inferences based on the RFC assessment to determine what parts of the testimony the
ALJ found credible. Id. Similarly, it is clear in the present case that the ALJ rejected statements
that were inconsistent with the RFC assessment. (R. 16). That meant that he rejected statements
that Prince could not occasionally lift/carry 50 pounds, frequently lift/carry 25 pounds, and could
not walk, stand, or sit for six hours of an eight hour work day with the usual breaks. The
undersigned finds that the ALJ’s credibility assessment was “closely and affirmatively linked to
substantial evidence” that supported the conclusion that Prince was not fully credible. Hackett v.
Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005).
Effect of Obesity
Prince argues that the ALJ did not consider the effect of her obesity in assessing her
ability to work, and that such failure constitutes reversible error. Plaintiff’s Opening Brief, Dkt.
#11, p. 8. It is true that “[o]besity in combination with another impairment may or may not
20
increase the severity or functional limitations of the other impairment.” Social Security Ruling
02-1p, 2002 WL 34686281. Obesity can affect “exertional, postural, and social functions,” and a
failure by the ALJ to assess the effect of obesity on the claimant’s RFC can result in reversal.
Baker v. Barnhart, 84 Fed. Appx. 10, 14 (10th Cir. 2003) (unpublished).
Contrary to Prince’s assertion, it is apparent from the ALJ’s opinion that he took Prince’s
obesity into account in making his RFC assessment. (R. 15). The ALJ noted her height, weight,
BMI, and found that she was “morbidly obese.” Id. Additionally, the reports of Dr. Patterson
and Dr. Shires both noted Prince’s obesity. (R. 232-37, 262-69). In his assessment, Dr.
Patterson found that Prince was obese with a BMI of 48. (R. 233). In the narrative portion of her
RFC report, Dr. Shires also mentioned Prince’s BMI. (R. 264). Although Dr. Shires was aware
that Prince was morbidly obese with a BMI of 48, she nevertheless found Prince was capable of
doing medium work with no other restrictions.
The fact that Dr. Patterson and Dr. Shires recognized Prince’s obesity puts this case in
contrast to DeWitt v. Astrue, a case on which Prince relies to support her argument that the ALJ
neglected his obligation to consider the effect of obesity on her RFC. DeWitt v. Astrue, 381 Fed.
Appx. 782 (10th Cir. 2010) (unpublished); Plaintiff’s Opening Brief, Dkt. #12, pp. 8-9;
Plaintiff’s Reply Brief, Dkt. #16, p. 3. In DeWitt, a testifying, nonexamining consultant made no
mention of the claimant’s obesity, and there was no evidence that he was even aware of her
obesity. DeWitt, 381 Fed. Appx. at 784. Still, the ALJ in DeWitt stated that he gave great weight
to that consultant’s opinion in assessing the effects of the claimant’s obesity. Id. at 785. The
Tenth Circuit reversed because the consultant’s testimony did not support the ALJ’s statement
regarding obesity. Id. DeWitt is distinguishable from the present case, because Dr. Shires was
aware of Prince’s weight and morbid obesity, and with that awareness nevertheless found that
21
Prince could perform medium work. Dr. Shires’ assessment therefore remains substantial
evidence supporting the ALJ RFC determination. Cowan v. Astrue, 552 F.3d 1182, 1189-90
(10th Cir. 2008) (opinion evidence of nonexamining consultants can constitute substantial
evidence); Weaver v. Astrue, 353 Fed. Appx. 151, 154-55 (10th Cir. 2009) (unpublished)
(nonexamining opinion was substantial evidence supporting RFC determination).
Prince argues that the ALJ should have considered Listings 1.04,21 3.00,22 and 4.0023 in
evaluating whether her impairments met the requirements of a Listing. There is no evidence
highlighted to support a finding that Prince met the qualifications for one of those Listings.
These arguments are perfunctory and unrelated to the issue of the Plaintiff’s obesity. Without
significantly more development, the Court does not have the ability to meaningfully analyze the
arguments, and they are therefore waived. Wall, 561 F.3d at 1066.
Conclusion
The decision of the Commissioner is supported by substantial evidence and the correct
legal standards were applied. The decision is AFFIRMED.
Dated this 22nd day of June 2012.
21
Listing 1.04 includes: “Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord.
22
Listing 3.00 describes impairments of the respiratory system.
23
Listing 4.00 describes impairments of the cardiovascular system.
22
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?