PAUL CASSELL, District Judge
Plaintiff, Richard S. Nielson filed this action seeking judicial review of a final decision of the Commissioner denying his application for disability insurance benefits ("DIB") under Title II of the Social Security Act. Because the evidence substantially supports the ALJ's conclusions, this court affirms the decision of the Commissioner, and denies Mr. Nielsen's appeal.
See 42 U.S.C. § 401-433.
Statement of Facts
Plaintiff Richard S. Nielson was born on May 30, 1950, and was 50 years old on the date of the Administrative Law Judge's decision. Mr. Nielson has a high school education plus one year of college, and has worked as a truck driver and yardman. He claimed he became disabled on November 7, 1998 (subsequently amended to the date of his 50th birthday, May 30, 2000) due to spondylolisthesis with three-level back fusion at L5-S1 and L3-L4, and loss of hearing and right eyesight.
On April 21, 1998, an MRI of Mr. Nielson's lumbar spine showed a minimal grade I broad-based posterior disk bulge without significant stenosis. At L-3-4, there was a grade I-II posterior broad-based bulge associated with an annular tear with no significant spinal canal and neuroforaminal narrowing. At L4-5, a diffuse grade I-III disk bulge was seen without significant narrowing. At L5-S1, there was a grade II diffuse disk bulge associated with disk degeneration and desiccation. The bulging disk mildly narrowed both neuroforamina.
In August 1998 and again in October 1998, Mr. Nielson underwent an epidural injection to the L4-5 interspace, performed by Terry Sawchuck, M.D.
On November 13, 1998, a bone scan showed increased activity about the L5-S1 disc space compatible with degenerative disc disease. There was mild uptake at right acromioclavicular joint, also thought to be due to degenerative changes.
On January 22, 1999, physical therapist Kurt Dudley opined Mr. Nielson could lift 50-60 pounds without bending or stooping. Mr. Dudley further opined Mr. Nielson could lift 35 pounds from the floor and should avoid twisting.
On February 5, 1999, Reed E. Fogg, M.D., performed a facet rhizotomy (cutting of nerve roots) at L3-4 and L4-5 bilaterally. Because of continuing symptoms, on June 2, 1999, Mr. Nielson underwent an anterior interbody fusion at L3-4, L4-5, and L5-S1, performed by Dr. Fogg.
On October 1, 1999, Mr. Nielson stated his daily activities including going to physical therapy, doing what house work he could, sometimes going to a movie, watching television or reading, and sometimes going for a walk. His wife prepared all the meals and did most of the household chores; he helped with grocery shopping. He drove his car to therapy, which included swimming pool therapy for one hour and lifting 20-30 pound weights for 30 minutes three days a week. He sometimes visited with friends on his way back home from physical therapy.
On January 11, 2000, Dr. Fogg released Mr. Nielson to return to light-medium work on January 15, 2000. In a letter dated February 24, 2000, Dr. Fogg noted Mr. Nielson had been placed at maximum medical improvement on January 15, 2000. Dr. Fogg stated that functional testing placed Mr. Nielson in the light-medium category, which included lifting 50 pounds occasionally and only occasional bending and twisting. Dr. Fogg opined Mr. Nielson was able to return to his work as an auto transport driver.
On February 26, 2000, Mr. Nielson was examined by Brian E. Staley, M.D. Mr. Nielson's sensation to light touch and temperature was decreased over the right foot to the ankle in no particular dermatomal distribution. He had mild difficulty getting on and off the examining table, and "moderate difficulty getting his shoes and socks on and off in that he had to pull his feet behind him because he could not bend forward." Mr. Nielson had back pain with straight leg raises, but he was able to raise his heels six inches off the examining table. He was able to walk on either his heels or toes without difficulty. He could hop on one foot with mild difficulty. He had no limitations in eight gross or fine motor functions of the upper extremities. He could pick up small coins from a flat surface without difficulty. Dr. Staley noted that, although Mr. Nielson's straight leg raising was positive, loss of range of motion was mild. He also noted sensory loss in Mr. Nielson's right foot was suggestive, but not diagnostic of nerve root irritation. Mr. Nielson ambulated well and did not appear to require a supportive device to ambulate.
On April 4, 2000, Mr. Nielson stated he quit physical therapy in January 2000. He watched television most of the day and read magazines for about one hour a day. He drove himself to the doctor's office, and visited with friends about one hour a week.
In a May 4, 2000, progress note, Mr. Nielson presented with complaints of tenderness on the right side of his spine after pulling a lawnmower. Dr. Fogg believed Mr. Nielson aggravated the muscle and gave him an epidural injection. Mr. Nielson was told to return in six months.
On May 16, 2000, Dr. Fogg completed a "Medical Assessment of Ability to do Work-Related Physical Activities." He opined that in an eight hour workday Mr. Nielson could sit for four hours, stand or walk for about four hours. Mr. Nielson could lift and carry continuously less than 10 pounds, frequently lift and carry 10 to 20 pounds, and occasionally lift and carry 50 pounds. Mr. Nielson could continuously do simple grasping, and gross and fine manipulation, as well as frequent pushing and pulling of controls. He was able to frequently climb ramps, stairs, and ladders. He could occasionally stoop, kneel, crouch, crawl, and reach.
On May 23, 2000, a State agency medical consultant (DDS physician) reviewed the record and completed a physical RFC assessment. The physician found Mr. Nielson could lift 50 pounds occasionally and 25 pounds frequently; stand and/or walk about six hours in an eight-hour workday; and sit about six hours in an eight hour workday. In addition, Mr. Nielson could balance, stoop, kneel, crouch, or crawl only occasionally.
On October 10, 2000, Dr. Fogg reported Mr. Nielson was "really doing well." He noted Mr. Nielson "had a lift added to his shoe which has greatly taken away a lot of his low back pain." X-rays showed a solid fusion.
On November 5, 2000, Mr. Nielson was hospitalized for an acute inferior wall myocardial infarction. He underwent a successful stenting of the right coronary artery. On January 1, 2001 Mr. Nielson returned to his home.
In a progress note dated January 10, 2001, Rebecca B. Bair, M.D., noted Mr. Nielson had stent placement surgery and received Plavix for "6?" weeks. Dr. Blair also noted Plavix (clopidogrel bisulfate) "is indicated for the reduction of atherosclerotic events (myocardial infarction, or stroke, and vascular death) in patients with atherosclerosis documented by recent stroke, recent myocardial infarction, or established peripheral arterial disease. She reported Mr. Nielson was currently doing well and had no chest pain, shortness of breath, paroxysmal nocturnal dyspnea, orthopnea, or palpitations. Mr. Nielson was exercising regularly and following a low cholesterol diet; he was a nonsmoker.
MOSBY'S DRUG CONSULT, (12th Ed. 2002), available in TETON VIEWER: MEDICAL REFERENCE (First Quarter 2002).
On January 11, 2001, Mr. Nielson underwent right sacroiliac joint injection, performed by Terry C. Sawchuck, M.D., Mr. Nielson tolerated the procedure well and reported an 80 percent relief of symptoms.
On January 22, 2001, Mr. Nielson stated he could stand for 10 minutes, walk about one mile, lift no more than 35 pounds, and sit no longer than 20 minutes. He drove a car three or four times a week for short trips.
On January 26, 2001, Dr. Fogg completed a lumbar spine residual functional capacity questionnaire. Dr. Fogg noted Mr. Nielson had significantly reduced range of motion, tenderness, muscle spasm, and impaired sleep. He would need to lie down each day for pain relief for three to four hours a day. Mr. Nielson would often experience pain severe enough to interfere with attention and concentration. He could sit for 15 to 20 minutes for a total of two hours, and stand 15 minutes at one time for a total of two hours. He would need to be able to shift positions at will from sitting, standing, or walking. He could lift and carry 10 pounds frequently, and 20 pounds occasionally. He had significant limitations in doing repetitive reaching.
At the February 14, 2001, administrative hearing before an Administrative Law Judge ("ALJ"), Mr. Nielson testified he injured his back in a work-related accident about one year prior to his alleged onset of disability in November 1998. He testified he had a one-year pass to a fitness center and that he went almost every other day to walk on the indoor track and stretch in the pool.
Procedural History
Mr. Nielson's application for DIB was protectively filed in August 1998, was denied initially, and upon reconsideration. After a hearing, the ALJ issued a decision on April 27, 2001, finding that Mr. Nielson was not disabled because he retained the residual functional capacity ("RFC") to perform a significant range of light work and jobs existing in significant numbers would accommodate his limitations. The Appeals Council declined review of the ALJ's determination, making it the Commissioner's final decision for purposes of judicial review.
See 20 C.F.R. § 404.981 (2001).
Standard of Review
The court reviews the Commissioner's decision to determine whether substantial evidence in the record as a whole supports the factual findings and whether the correct legal standards were applied. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The Court may neither "reweigh the evidence nor substitute [its] discretion for that of the [ALJ]." Where the evidence as a whole can support either the agency's decision or an award of benefits, the agency's decision must be affirmed.
Castellano v. Secretary of Health Human Services, 26 F.3d 1027, 1028 (10th Cir. 1994); Hamilton v. Secretary of Health Human Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992).
Hamilton, 961 F.2d at 1498.
White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001).
See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).
Discussion
The plaintiff has the burden of proving his disability by establishing a medically-determinable physical or mental impairment which lasts for a continuous period of at least twelve months that prevents him from engaging in any substantial gainful activity. The Commissioner follows a five-step sequential evaluation process for determining disability. The five steps are: (1) whether the claimant is currently working; (2) whether the claimant suffers from a severe impairment; (3) whether the impairment meets or equals the criteria for an impairment listed in Appendix 1 or 20 C.F.R. Subst. P; (4) whether the impairment prevents the claimant from performing his past relevant work; and (5) whether the impairment prevents the claimant from performing other work. The burden is on the plaintiff to meet the first four inquiries. However, if plaintiff does meet all four, the burden then shifts to the Commissioner to establish that there are other jobs, existing in a significant number, which the plaintiff is capable of performing. If a decision can be reached at any step in the sequential evaluation process, further evaluation is unnecessary. If at any point in time the ALJ finds that a person is disabled or not disabled the review ends.
See Reyes v. Bowen, 845 F.2d 242 (10th Cir. 1988).
See 20 C.F.R. § 404.1520 (a)-(f).
See Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992).
Id.
Here, the ALJ followed the five-step sequential evaluation in evaluating Mr. Nielson. He determined that Mr. Nielson suffered from a severe impairment, but that Mr. Nielson's impairments did not meet or equal a Listing impairment. The mere existence of a "severe" impairment does not require a finding that an individual is disabled within the meaning of the Act; rather, to be disabling, the claimant's condition must be so functionally limiting as to preclude any substantial gainful activity for at least twelve consecutive months. The ALJ determined that Mr. Nielson had engaged in substantial gainful activity since the alleged onset of the disability.
See Barnhart v. Walton, 1225 S.Ct. 1265, 1266 ( 535 U.S. 212) (2002); Quails v. Apfel, 206 F.3d 1368, 1373 (10th Cir. 2000); Bernal v. Bowen, 851 F.2d 297, 301 (10th Cir. 1988).
Before continuing to the fourth step of the evaluation, the ALJ assessed Mr. Nielson's RFC. Based on the evidence in the record as a whole, the ALJ found that Mr. Nielson had the RFC to perform light and medium work. The ALJ'S RFC determination was based on the medical evidence as well as nonlexical evidence, and therefore comported with the regulations.
See 20 C.F.R. § 404.1529, 416.929.
Mr. Nielson raises three challenges to the ALJ's determination: first, that the ALJ did not properly find Mr. Nielson's combined impairments did not meet or equal a Listing impairment; second, that the ALJ did not properly evaluate Mr. Nielson's credibility and his subjective complaints; and, third, that the ALJ violated the "Treating Physician Rule" with regard to the opinions of Dr. Fogg.
1. Mr. Nielson `s Combined Impairments did not Meet or Equal a Listed Impairment.
Mr. Nielson first contends that the ALJ did not properly find Mr. Nielson's combined impairments did not meet or equal a Listing impairment. The Commissioner's regulations provide that the determination of whether a particular medical condition meets or equals a listed impairment is a medical judgment, made at the initial and reconsideration levels by the Commissioner's designated physicians and consultative medical specialists. Mr. Nielsen argues that the combination of his impairments meets an unspecified Listing impairment. For a claimant to qualify for benefits by showing that his combination of impairments is equivalent to a listed impairment, he must present medical findings equal in severity to all the criteria for the one more similar, listed impairment.
See 20 C.F.R. § 404.1526.
See 20 C.F.R. Part 404, Subst. P. App.l
See Sullivan v. Zebley, 493 U.S. 521, 531 (1990); 20 C.F.R. § 404.1526 (a).
Mr. Nielsen claims his impairments — due to his chronic back pain and his heart attack — rise to the level of a Listing impairment. However, the medical evidence, and the findings of the DDS evaluator, support the ALJ's conclusion they do not. The ALJ noted that subsequent to Mr. Nielson's successful lumbar fusion surgery in June 1999, he did not seek ongoing treatment until May 2000, almost one year later, when he received an epidural injunction from Dr. Fogg after working with a lawnmower. Mr. Nielsen also received an epidural injunction from Dr. Sawchuck in January 2001, almost seven months later, for his sacroiliac joint dysfunction. A claimant's claims of disabling pain can be discredited by evidence of infrequent medical treatment. In this case, the fact that Mr. Nielsen sought only infrequent treatment for his allegedly disabling back pain, supports the ALJ's conclusion that the medical evidence did not support a finding that Mr. Nielsen was disabled.
See Musgrave v. Sullivan, 966 F.2d 1371, 1376 (10th Cir. 1992); Luna v. Bowen, 834 F.2d 161, 165-66 (10th Cir. 1987).
The ALJ further noted that, in January 2000 (approximately seven months after Mr. Nielson's lumbar fusion surgery), Dr. Fogg released Mr. Nielsen to return to work at the light to medium exertional level. In May 2000, Dr. Fogg completed a work capacity assessment in which he opined that in an eight-hour workday, Mr. Nielsen could sit for four hours, and stand or walk for about four hours. Dr. Fogg concluded Mr. Nielsen could participate in work that involved frequent pushing and pulling of controls, and that he could frequently climb stairs, ramps, and ladders. Even Dr. Fogg concluded Mr. Nielsen was capable of some exertional work.
The ALJ also noted that the medical records indicated Mr. Nielsen was doing well with the treatment he received in October 2000. The ALJ further observed that in January 2001, Dr. Bair indicated that Mr. Nielsen was doing "really well" following his heart attack and that he "had no chest pain, shortness of breath, paroxysmal nocturnal dyspnea, orthopnea, or palpitations. He exercised regularly and he followed a low cholesterol diet."
Taken collectively, the medical evidence supports the ALJ's conclusion that there was no consecutive twelve month period from Mr. Nielson's alleged onset date of May 30, 2000, to the time of decision where his condition would have prevented all types of work activity. The ALJ reasoned:
Dr. Fogg's (treating physician) residual functional assessment and Dr. Staley's (consultative examination) seem to leave gaps where the claimant may have been able to perform his past relevant work or at least "light" work for periods of several months . . . on January 11, 2000 Dr. Fogg released the claimant to light to medium work. The claimant appears to have done well following the June 1999 surgery until May 2000.
In November 2000, six months after Dr. Fogg's May 2000 assessment, Mr. Nielsen suffered a myocardial infarction. Mr. Nielsen underwent a successful stenting of the coronary artery. The ALJ reviewed the subsequent reports of Dr. Bair which indicate that Mr. Nielsen recovered quickly from the heart attack. When an impairment is alleviated by treatment, it is not disabling. The ALJ reviewed the medical record and, based on Dr. Bair's assessment as well as the other medical evidence, reasonably determined that Mr. Nielson's heart impairment was not of disabling severity for the necessary twelve continuous months.
See Kelley v Chater, 62 F.3d 335, 338 (10th Cir. 1995).
The ALJ also properly considered the DDS physician's May 2000 Residual Functional Capacity (RFC) assessment which corroborated the opinions of Dr. Fogg. The DDS physician reviewed the entire medical record, including Dr. Fogg's May 2000 assessment of Mr. Nielsen. The DDS physician concluded that Mr. Nielsen was capable of a significant range of light work. The ALJ could properly rely on this evidence.
Because Mr. Nielsen received infrequent treatment of his alleged disabling back pain, the ALJ's finding that Mr. Nielson's back pain did not rise to the level of a Listing impairment is substantially supported by the record. In addition, the ALJ noted the medical evidence showed that Mr. Nielsen successfully, and quickly, recovered from his heart attack, despite the prior back pain. Because the ALJ's conclusion that Mr. Nielson's impairments did not rise to the level of a Listing impairment is substantially supported by the record, it is affirmed.
2. Mr. Nielson's Credibility
Mr. Nielsen next argues that the ALJ did not properly consider the medical and nonmedical evidence in the record when evaluating his credibility. Credibility is the province of the ALJ, and a reviewing court should generally treat credibility determinations made by an ALJ as binding upon review, as long as the ALJ properly considered the relevant medical and nonmedical evidence and gave specific legitimate reasons for disbelieving the plaintiff's testimony. The ALJ does not need to set forth a detailed analysis of the factors that were the basis for the credibility findings. Here, the ALJ explained his specific concerns about Mr. Nielson's credibility and their relation to the evidence in the case:
See Gossett v. Bowen, 862 F.2d 802, 807 (10th Cir. 1988); see also 20 C.F.R. § 404.1529.
See Quails v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
The claimant's statements concerning his impairments and their impact on his ability to work are not entirely credible in light of the claimant's own description of his activities and lifestyle, the degree of medical treatment required, the reports of the treating and examining practitioners, the medical history, the findings made on examination, and the claimant's assertions concerning his ability to work.
The ALJ could properly rely on a possible inconsistency between Mr. Nielson's activities and lifestyle and alleged disabling pain. The question of whether Mr. Nielsen was credible or not belongs to the ALJ, not this court. This court's limited role is to determine the ALJ's conclusions were reasonable. Given the ALJ's specific explanation of his conclusions, the ALJ's findings in this regard were not erroneous.
3. Treating Physician
Mr. Nielson's final argument is that the ALJ violated the "Treating Physician Rule" in failing to follow the opinions of Dr. Fogg. The court disagrees. The ALJ considered all relevant evidence, both medical and non-medical, and properly discounted Dr. Fogg's January 2001 RFC assessment because it was not supported by objective findings and, indeed, was seemingly inconsistent with Dr. Fogg's own progress notes. Dr. Fogg's earlier, May 2000, assessment was entitled to significant weight because it was consistent with the record. The ALJ noted that Dr. Fogg's new assessment of Mr. Nielsen in January 2001 was not accompanied by significant changes in Mr. Nielson's objective medical or clinical findings. Dr. Fogg's new assessment was also inconsistent with his own treatment notes. In particular, in October 2000, three months prior to the January 2001 assessment, Dr. Fogg reported that Mr. Nielsen was doing "really well." The ALJ also noted that Dr. Fogg had given no indication that any disability would persist for 12 continuous months. In this court, Mr. Nielson offers no reason for believing the disability would persist the required length of time.
The treating physician's opinion can be rejected if it is not supported by other evidence in the record. The ALJ discounted Dr. Fogg's January 2001 RFC assessment because his findings were inconsistent with Dr. Fogg's own progress notes. The ALJ also noted that the ultimate determination of whether Mr. Nielson was disabled in an issue reserved for the Commissioner, not Dr. Fogg. The ALJ's duty was to weigh the evidence, to resolve material conflicts in the record, and to decide the case accordingly. In this case, the ALJ's decision to discount the second opinion of Dr. Fogg is substantially supported by the record.
See, e.g., Bean v. Chater, 11 F.3d 1210, 1214 (10th Cir. 1995); Castellano, 26 F.3d at 1029; Bernal, 851 F.2d at 301.
See 20 C.F.R. § 404.1527 (e).
See Richardson v. Perales, 402 U.S. 389, 399 (1971); Casias v. Secretary of Health Human Servs., 933 F.2d 799, 801 (10th Cir. 1991).
CONCLUSION
For all these reasons, the court DENIES Mr. Nielson's Petition for Review, AFFIRMS the Commissioner's decision, and dismisses this case. The Clerk of the Court is directed to close the case.