Opinion
Case No. 2:02-CV-00339TC
May 22, 2003
ORDER
Venus McDuffie appeals the denial of her August 26, 1999 application for Supplemental Security Income (SSI) payments under Title XVI of the Social Security Act, 42 U.S.C. § 1381 1383c. (Record "R." at 109-112.) She had previously filed an application on August 29, 1996. (R. at 11.) Ms. McDuffie contends that a number of impairments in combination render her incapable of working. (R. at 12, 109, 147, 170, 178, 335.) Her claim was denied initially on March 29, 2000 (R. at 97, 104-107), and upon reconsideration on July 17, 2000. (R. at 96, 99-101.) Ms. McDuffie timely filed a request for a hearing on August 8, 2000. (R. at 98.)
Following an administrative hearing on March 21, 2001 (R. at 29 95), Administrative Law Judge ("All") Robin L. Henrie issued his September 7, 2001 decision finding the claimant not disabled. (R. at 8 22.) Ms. McDuffie timely filed a request for review by the Appeals Council on October 10, 2001. (R. at 7.) The Commissioner of Social Security ("Commissioner") issued its final administrative decision denying Ms. McDuffie SSI benefits on February 22, 2002. (R. at 5 6.) Consequently. Ms. McDuffie filed this action pursuant to 42 U.S.C. § 405 (g) and 1383(c)(3), appealing the administrative decision denying her application for SSI payments. Ms. McDuffie contends that the ALJ findings should be reversed because they are contrary to substantial evidence and the result of legal error. Having considered the evidence presented in the administrative record and at the April 29, 2003 review hearing, along with the arguments of both parties. the court affirms the administrative decision for reasons that follow.
BACKGROUND
Ms. McDuffie is a 32 year old woman. (R. at 78, 153.) She attended special education classes in school, obtained a GED (high school equivalent education), and completed two years of college. (R. at 153.) In the past, she has worked as a mailroom clerk, a dishwasher, and a telemarketer. (R. at 148.) Ms. McDuffie alleged an inability to work. beginning on August 1, 1999, due to multiple medical impairments. (R. at 109, 147.) Among these medical conditions are kidney malformation (irregular small right kidney) (R. at 147, 297, 367, 371-73), Factor V Leiden deficiency (See, e.g., R. at 147% 371-72), advanced Protein C resistance (See, e.g., R. at 147). deep vein thrombosis and pulmonary embolism (See. e.g., R. at 147, 173-74); irritable bowel syndrome (R. at 147); asthma, chronic bronchitis, and chronic migraine headaches (See, e.g., R. at 147, 425 41); major depression, post-traumatic stress disorder, dysthymia, personality disorder. and suicidal tendencies (R. at 147, 379-422). Although the medical records reveal that the blood clotting disorder is Ms. McDuffie's most severe ailment, she does not argue that any one limiting condition predominates. Rather, as addressed below, she argues that the ALJ neglected to consider her various impairments in combination, and that the ALJ further disregarded the opinions of her treating physicians in determining both that her impairments do not meet or equal a listed impairment and that she is capable of performing jobs available in significant quantities in the national economy.
A genetic condition that creates a tendency toward blood clotting.
A resistance related to the Factor V Leiden deficiency.
Ms. McDuffie suffers from hypercoaguable syndrome, a blood clotting disorder, discovered in January 1995. Because of this, she is prone to thrombi and pulmonary emboli (in laymen's terms. blood clots), and has had a Greenfield type titanium filter placed at the junction of the inferior vein cava and right atrium of the heart. (R. at 173-74).
ANALYSIS
I. Standard of Review
A person seeking social security benefits bears the burden of proving that because of her disability, she is unable to perform her previous work activity. See Miller v. Chater, 99 F.3d 972, 975 (10th Cir. 1996). Once the claimant establishes that she has such a disability, the burden shifts to the Commissioner to prove that the claimant retains the ability to do other work and that jobs which she can perform exist in the national economy. See id.; Saleern v. Chater, 86 F.3d 176, 178 (10th Cir. 1996). The Commissioner has established a five-part sequential evaluation process for determining disability. 20 C.F.R. §; 404.1520(a)(f). In the first two steps. the ALJ determines whether the claimant is engaging in substantial gainful activity, and whether the claimant has a "severe" impairment. 20 C.F.R. § 404.1520(b) (e). If the claimant has satisfied the first two steps, the evaluation moves on to step three, a determination of whether the claimant's impairments meet or equal a disability described in the listing of impairments. 20 C.F.R. § 404.1520 (d). If the claimant is found to have an impairment meeting or equaling the listed impairments, he or she must be found disabled. Id. If the claimant fails to satisfy this step, the evaluation moves to steps four and five, an assessment of the claimant's residual functional capacity ("RFC"). 20 C.E.R. § 404.1520(e) (f). At step four, the ALJ determines whether the claimant can perform her past work. 20 C.F.R. § 404.1520 (e). If she cannot, the evaluation moves on to step five, where the ALJ decides whether the claimant can perform other work. 20 C.F.R. § 404.1520 (f).
The court reviews the ALJ's decision "to determine whether it is supported by substantial evidence and whether correct legal standards were applied." Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000). In conducting this review, the court examines the record viewed as a whole.Saleem, 86 F.3d at 178. The ALJ's findings of fact, if supported by substantial evidence, are conclusive upon judicial review. See Richardson v. Perales. 402 U.S. 389, 390 (1971); 42 U.S.C. § 405 (g), 1383(c)(3). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."Richardson, 402 U.S. at 401; Qualls, 206 F.3d at 1371. Evidence is not substantial if it is overwhelmed by other evidence in the record or if it constitutes mere conclusion. Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). In reviewing the ALJ's decision. the court "may neither reweigh the evidence nor substitute [its] discretion for that of the [ALJ]." White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001).
II. Discussion
Ms. McDuffie challenges the ALJ's September 7, 2001 decision on two bases: (1) that the ALJ failed to consider the cumulative effect of her combined impairments in determining that Step 3 of the evaluation (listed impairments) was not met; and (2) that the ALJ improperly determined that she was capable of performing a significant number of jobs in the national economy. Underlying both of these theories is Ms. McDuffie's argument that the ALJ violated the treating physician rule by failing to place the proper weight on the opinions of her treating physicians.
A. Did the ALJ fail to consider the cumulative effect of Ms. McDuffie's combined impairments in determining that such impairments did not meet or equal a listed impairment?
Ms. McDuffie contends that the ALJ failed to consider whether her several impairments in combination met or equaled a listed impairment. Where a claimant has more than one impairment. none of which meets or equals a listed impairment. the ALJ must match the collective medical findings of the combined impairments "to the specific set of symptoms, signs, and laboratory findings of the listed impairment to which they can be most closely related." Social Security Ruling ("SSR") 86-8, available at 1986 WL 68636, at *4 (S.S.A. 1986); see also 20 C.F.R. § 404.1526 (a). Here, Ms. McDuffie argues that her "multiple physical and mental difficulties" including her malformed right kidney, Factor V Leiden deficiency. advanced protein C resistance, depression with suicidal tendencies, deep vein thrombosis, pulmonary embolism, irritable bowel syndrome. asthma. chronic bronchitis, and chronic migraines-when considered as a whole, "meet the medical equivalence to a listed impairment." (Pl.'s Brief at 16.) However, "[t]he mere accumulation of a number of impairments will not establish medical equivalency." SSR 86-8. 1986 WL 68636, at *4. see also, Christian v. Apfel, 188 F.3d 518, at **2 (10th Cir. 1999) (unpublished opinion) (claimant must do more than simply argue that overall functional impact of her impairments equals a listed impairment in severity). Rather, as the Tenth Circuit Court of Appeals has explained in an unpublished opinion, Ms. McDuffie must show, "through medical evidence, that [her] impairments `meet all of the specified medical criteria' contained in a particular listing." Riddle v. Halter, 10 Fed. Appx. 665, 667 (10th Cir. 2001) (quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990)). Ms. McDuffie neither specifies which listed impairment she believes her impairments equaled, nor outlines the specified medical criteria for any such listing. Instead, she argues that the ALJ incorrectly concluded that her mental limitations (as assessed by Dr. McGill) were insufficient to meet Listing 12.04 (Affective Disorder), particularly in combination with the symptoms of her physical impairments. Under the analysis that follows, the court disagrees.
Where an ALJ addresses a claimant's various impairments in his or her findings, there is "nothing to suggest that they were not properly considered" in combination. Eggleston v. Bowen, 851 F.2d 1244, 1247 (10th Cir. 1988). In his decision, the ALJ considered evidence going to all the impairments Ms. McDuffie argues should have been assessed cumulatively: Ms. McDuffie's malformed kidney (and irregular cyst), blood clotting disorder (including Factor V Leiden deficiency, deep vein thrombosis and pulmonary embolism, and problems with her anticoagulant medications), depression with suicidal tendencies (as well as several other psychological disorders). irritable bowel syndrome, asthma, chronic bronchitis, and chronic migraines. (R. at 12-14.)
Although the ALJ did not specifically cite evidence of irritable bowel syndrome, it is clear that he acknowledged the validity of the condition by requiring that "[t]he claimant must be allowed to work near a restroom for quick access. (R. at 15.)
It is also true that the ALJ specifically addressed the failure of the medical evidence to meet Listing 12.04 (Affective Disorder). The ALJ applied the following standards, allowing that a claimant can meet the requirements of Listing 12.04 by establishing at least two of the following criteria:. First, he remarked that 12.04
requires that the claimant establish at least two of the following: "marked" restriction of daily activities, "marked" difficulties maintaining social functioning, "marked" deficiencies of concentration, persistence, or pace; or three repeated episodes of decompensation, each of extended duration. The claimant can equal a listing by demonstrating "extreme" functional limitation in one of the above areas.
(R. at 14.) Looking at Ms. McDuffie's mental impairments, ALJ made reference to the following evidence: a February 16, 2001 LDS Hospital Pulmonary Clinic Report indicating that Ms. McDuffie has depression with suicidal ideation (R. at 541-43); a February 1, 1999 Valley Mental Health Psychiatric Evaluation indicating that she was diagnosed with major depression (recurrent, moderate), and had symptoms of dysthymia and a history of post-traumatic stress disorder, as well as a GAP rating of 55 (indicating moderate symptoms or moderate difficulty in social, occupational, or school functioning) (R. at 392); a July 4, 1999 Pioneer Valley Hospital Emergency Department report indicating that she attempted suicide by overdose of bendodiazepines and became almost comatose (R. at 308 14); a November 15, 1999 Valley Mental Health progress note indicating that she was assessed as having depression in remission and a personality disorder, and noting that work would be good for her (R. at 379 81); a November 23, 1999 Disability Determination Services assessment indicating that, psychologically, she had moderate improvement, that she has major depression (recurrent), dysthymia and a personality disorder (borderline, avoidant), and that although her psychological problems alone should not preclude her working. her medical problems may add to the complexity and depth of her ability to function (R. at 422); a February 17, 2000 University Pain Management Center assessment indicating that she has major depression (recurrent, moderate to severe), a generalized anxiety disorder, a panic disorder with agoraphobia, a GAP rating of 60 (which would allow for full-time work), and only 3-4 good hours per day (R. at 499.)
In the part of his analysis going to the question of residual functional capacity, the ALJ explicitly accepted the opinions of State Agency physicians. When determining medical equivalence, the ALJ may "consider the medical opinion or psychological consultants designated by the Commissioner." 20 C.F.R. § 404.1526 (b); see also, Valde, v. Apfel, 102 F. Supp.2d 1203, 1205 (D. Colo. 2000) (internal citations omitted) ("While the Tenth Circuit has not specifically addressed this issue, other circuits have held that `[t]he ALJ is entitled to rely on the opinions of reviewing physicians when considering whether the claimant meets the requirements of a listed impairment.'") One state physician who reviewed Ms. McDuffie's records, Dianne Brown, found in relevant part, that Ms. McDuffie exhibited symptoms of affective disorders and personality disorders, but that her depression did not preclude her working; that she does her activities of daily living, if sloppily; that she reads, uses the computer, does crafts, listens to music, and does exercises; and that she has no moderate, marked, or extreme functional limitations (R. at 474-481). Dr. Brown assessed Ms. McDuffie as having a nonsevere mental impairment, capable of a light residual functional capacity. (R. at 483.) Another state agency physician, in a reconsideration review, found symptoms of affective disorders, anxiety related disorders, and personality disorders, but found only slight to moderate functional limitations and "not significantly limited" or "moderately limited" features of sustained concentration and persistence. social interaction, and adaptation. (R. at 527-37.)
Based on this evidence, other evidence in the record concerning Ms. McDuffie's mental impairment, and the testimony at the hearing, the ALJ concluded that (1) her degree of limitation in activities of daily living is mild; (2) she has moderate difficulty in maintaining social contact; (3) she has moderate limitations of concentration, persistence and pace; and (4) she has exhibited 1 or 2 repealed episodes of decompensation, each of extended duration. (R. at 14-15.) Accordingly, the ALJ concluded that Ms. McDuffie's impairments did not satisfy the requirements of Listing 12.04 under the first evidentiary route.
As Ms. McDuffie points out, the ALJ's findings are contrary to reports given by Ms. McDuffie's treating physician with respect to her mental conditions, psychologist Liz McGill. In a Mental Work Capacity Evaluation, Dr. McGill, Ph.D., assessed Ms. McDuffie as having, in relevant part: (1) Extreme limitations in her ability to understand and remember detailed instructions, her ability to carry out detailed instructions, her ability to maintain attention and concentration for extended periods, her ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances, and her ability to work in coordination with or in proximity to others without being distracted by them (R. at 558-59); (2) Marked limitations in her ability to remember locations and work-like procedures, her ability to carry out very short and simple instructions, her ability to sustain an ordinary routine without special supervision, her ability to make simple work-related decisions, her ability to accept instructions and respond appropriately to criticism from supervisors, her ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes, her ability to respond appropriately to changes in the work setting, her ability to travel in unfamiliar places or use public transportation, and her ability to set realistic goals or make plans independently of others. (R. at 558-59.)
Overall. Dr. McGill assessed Ms. McDuffie as having, in relevant part, (1) Marked restrictions of activities of daily living; (2) Frequent deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner (in work settings or elsewhere); and (3) three or more two-week episodes (within a twelve month period) of deterioration or decompensation in work or work-like setting, which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms (which may include deterioration of adaptive behaviors). (R. at 560.) These conclusions appear to meet three of the four criteria for Listing 12.04: marked restrictions of daily activities, marked deficiencies of concentration, persistence, or pace. and three episodes of extended decompensation. The ALJ notes that a claimant "can equal a listing by demonstrating `extreme' functional limitation in one of the above areas." (R. at 14.) Dr. McGill indicated that Ms. McDuffie's degree of limitation for four of the eight abilities listed under "sustained concentration and persistence" was "severe" (R. at 558-59.) It is therefore possible that Ms. McDuffie's limitations "equal" Listing 12.04.
The question then becomes whether the ALJ was justified in not accepting the opinions of Ms. McDuffie's treating physicians. In challenging the ALJ's limited regard for her treating physicians' opinions, including that of Dr. McGill, Ms. McDuffie invokes the "treating physician rule," which maintains that a treating physician's opinion is binding on an ALJ unless contradicted by substantial evidence to the contrary. Hintz v. Chater, 913 F. Supp. 1486, 1492 (D. Kan. 1996) (citations omitted). The Tenth Circuit has explained that "[a] treating physician may offer an opinion which reflects a judgment about the nature and severity of the claimant's impairments including the claimant's symptoms. diagnosis and prognosis, and any physical or mental restrictions." Castellano v. Sec'y of Health and Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994) (citing 20 C.F.R. § 404.1527, 416.927). The Commissioner "will give controlling weight to that type of opinion if it is well supported by clinical and laboratory diagnostic techniques and if it is not inconsistent with other substantial evidence in the record." Id. The Commissioner therefore "must give substantial weight to the evidence and opinion of the claimant's treating physician, unless good cause is shown for rejecting it." Reyes v. Bowen, 845 F.2d 242, 244-45 (10th Cir. 1988) (citations omitted); see also 20 C.F.R. § 404.1527 (d)(2). If an ALJ rejects the treating physician's opinion, he "must give specific, legitimate reasons for his action." Reyes, 845 F.2d at 245; see also Drapeau v. Masanari, 255 E.3d 1211, 1213 (10th Cir. 2001) (citations omitted).
The controlling authority of medical opinions is subject to further limitation. As the ALJ has pointed out, under 20 C.F.R. § 404.1527 (e), "some issues are not medical issues regarding the nature and severity of an individual's impairment(s) but are administrative findings that are dispositive of a case; i.e., that would direct the determination or decision of disability." (R. at 18.) Examples of such ultimate issues that are reserved to the Commissioner are
1. Whether an individual's impairment(s) meets or is equivalent in severity to the requirements of any impairment(s) in the listings;
2. What an individual's RFC is;
3. Whether an individual's RFC prevents him or her from doing past relevant work;
4. How the vocational factors of age, education, and work experience apply; and
5. Whether an individual is "disabled" under the Act.
Social Security Ruling ("SSR") 896-5p, available at 1996 WL 374183, at *2 (S.S.A. 1996) see also, 20 C.F R. 404.1527(c)(1)(2). Even though adjudicators must carefully consider medical source opinions on these types of issues "to determine the extent to which the opinion is supported by the record," such opinions
are never entitled to controlling weight or special significance. Giving controlling weight to such opinions would, in effect, confer upon the treating source the authority to make the determination or decision about whether an individual is under a disability and thus would be an abdication of the Commissioner's statutory responsibility to determine whether an individual is disabled.
SSR 896-5p. 1996 WL 374183 at *2-3. In this case, the ALJ accepted the opinion of Dr. McGill to the extent that she commented on the nature and severity of Ms. McDuffie's impairments. (R. at 18.) However, the ALJ refused to give controlling weight to Dr. McGill's opinions to the extent that they drew conclusions on Ms. McDuffie's residual functional capacity, her ability to do past work, her ability to do other work, and whether she had a disability under the Act. (R. at 18.) Further, the ALJ remarked that, although he carefully considered Ms. McDuffie's treating physicians' (including Dr. McGill) opinions, he gave them "diminished weight as they indicate very extreme limitations that are unsupported by objective evidence, including the medications the claimant is taking. inconsistent with the claimant's testimony at the hearing and inconsistent with the claimant's activities of daily living as demonstrated in the record and in testimony." (R. at 19.) It is evident that the ALJ, although affording only limited weight to Dr. McGill's opinion on the question of whether she meets or equals Listing 12.04, gave elaborate, specific, and legitimate reasons for doing so, and thus has not violated the treating physician rule. Reyes, 845 F.2d at 245. Furthermore, there is substantial evidence in the record in the way of State Agency physicians' opinions and objective medical evidence, described above — supporting the ALJ's conclusion that Ms. McDuffie does not meet or equal Listing 12.04:
Along with those of her other treating physicians, who did not offer Opinions relevant to this Listing 12.04 analysis.
As well as her other treating physicians, on matters unrelated to Listing 12.04.
Also in his opinion, the ALJ explained that a claimant may satisfy a second set of criteria to meet Listing 12.04 by providing
medical documentation that the disorder lasted more than two years and caused more than a minimal limitation of ability to do basic work activity, with symptoms or signs currently attenuated by medication or psychosocial support and at least one of the following: repeated episodes of decompensation, each of extended duration: a residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would cause the individual to decompensate, on a current history of one or more years inability' to function outside a highly supportive living arrangement, with an indication of continued neat for such arrangement.
(R. at 15.) The All concluded that there was no written evidence or credible testimony that would meet these criteria. (R. at 15.) The evidence and hearing testimony described more fully above support this conclusion.
B. Did the ALJ improperly determine that Ms. McDuffie was capable of performing a significant number of jobs in the national economy?
Ms. McDuffie argues that the ALJ improperly concluded that she could perform a significant number of jobs in the national economy based on her RFC. Central to Ms. McDuffie's argument is the proposition that the ALJ effectively shifted the Commissioner's burden back to Ms. McDuffie by relying on the "absence or paucity of medical evidence" in making the RFC determination required in Step Five. Miller, 99 F.3d at 976 (citing Byron v. Heckler, 742 F.2d 1232. 1235 (10th Cir. 1984)). But her argument that the ALJ did not carry this burden is unpersuasive.
The ALJ found that Ms. McDuffie has the very limited residual functional capacity "to perform work at the sedentary exertional level with additional limitations as set forth [in other parts of the opinion]." (R. at 21.) Specifically, the ALJ recognized the following limitations: (1) lifting no more than 5 to 8.5 pounds at a time; (2) standing/walking no more than 15 to 20 minutes at a time, nor more than 2 hours in an 8 hour work-day; (3) sitting no more than 45-60 minutes at a time, nor more than 6 hours in an 8 hour work-day; (4) remaining seated or on one's feet, standing or walking (sit/stand option) no more than 15 minutes at a time; (5) not using the hands/fingers for fine manipulation activities more than briefly and intermittently (2-3 minutes at a time and 3-4 minutes out of every 10 minutes); (6) work at no more than the unskilled level; (7) work at no more than a low stress level, which means below average stress, and no significant stressors, such as significant production rate work; (8) essentially no working with the general public; (9) having the ability to respond appropriately to only minimal supervision and minimal interaction with supervisors and co-workers; (10) having the ability to respond appropriately to only minimal work setting changes (as opposed to "routine" work setting changes); (11) work at no more than a low concentration level (precluding mental computations, sustained spontaneous speaking or sustained reading and writing). but still requiring average alertness and attentiveness; (12) work at no more than a low memory level (meaning having the ability to understand, remember and carry out simple 1 to 2 step instructions, with the option to write things down or keep a list or diagram in sight to aid in memory, and with only minimal changes in the work instructions from week to week; (13) quick access to a restroom; (14) option to elevate legs at chair seat height at will; (15) no exposure to dangerous heights, machinery or chemicals; (16) no danger of bruising; and (17) no more than three-fourths of the working day (10 to 15 minutes at a time) given to repetitive use of the hands and fingers, using a brace. (R. at 15-16.) The ALJ further concluded that there are "a significant number of jobs in the national economy that she could perform," including the positions of surveillance systems monitor (100,000 jobs in the national economy) and wafer breaker (37,500 jobs in the national economy). (R. at 21.)
These limitations reflect the conditions imposed in the second hypothetical the ALJ posed to the Vocational Expert. Dr. Rivera.
In making this RFC determination, the ALJ relied principally on the testimony of Dr. Rivera to whom the ALJ had given an extensive hypothetical situation reflecting Ms. McDuffie's age, education, and past relevant work with ability to do a limited range of sedentary, unskilled work." (R. at 81.) In response to this hypothetical, and even in response to the ALPs second set of limitations (reflected in the ALJ's REC findings), Dr. Rivera indicated that the positions of surveillance monitor and wafer breaker would accommodate these limitations and are available in significant numbers in the national economy. (R. at 81-83, 87-89.) It was only when the ALJ posed a third hypothetical that Dr. Rivera responded that the proposed limitations would not be tolerated, and would eliminate the named jobs. (R. at 84.) The limitations included in this third hypothetical were as follows: (1) performing at 30 to 40% below average in all critical elements of the job (particularly in terms of productivity), (2) the need to elevate the legs above the heart beyond breaks and lunch, (3) some panic, anxiety, and depressive symptoms, reducing concentration and focus, (4) significant pain in the legs and stomach area. (5) significant headaches, (6) related problems discussed in the hearing, and (7) frequent absences. (R. at 84.) Dr. Rivera responded that these limitations would render the clerk and monitor jobs impossible.
Ms. McDuffie's argument appears to be that the ALJ disregarded substantial evidence in the record that proves the existence of several of the limitations in the third hypothetical, most notably (I) severe leg pain, and (2) the need to elevate the legs above the heart a significant portion of the day. But the ALJ found that "The medical records indicate no real, persistent indication of pain in the claimant's legs or swelling in her lower extremities — nor is there any mention of recumbency or this degree of elevation [above the heart] in the record." (R. at 16.) Although the ALJ found "rather regular indication of pain in the `flank' (between hip and ribs-not in the lower extremities) and the stomach area," there was no real reference to leg pain or to the need to elevate the legs above the heart "for this pain or any other pain." (R. at 16-17.) It was the conclusion of the ALJ that Ms. McDuffie's allegation that she was required to elevate her legs above her heart a large percentage of the day lacked credibility, in that it was inconsistent with her own description of her activities and life style, the degree of medical treatment she required, and the reports of treating and examining practitioners. (R. at 16, 133-37.) See Bean, 77 F.3d at 1214 (ALJ not required to accept vocational expert's responses to questions based on limitations ALJ did not find credible.)
Casting further doubt on Ms. McDuffie's credibility, according to the ALJ, was evidence demonstrating that Ms. McDuffie was "frequently" and "notoriously non-compliant in taking her anticoagulant medication (which manages her blood clotting disorder) and other medications. (R. at 13, 17, 287, 291, 546 47.) For her part. Ms. McDuffie gave different explanations for her noncompliance. reporting at times that "she simply had too many things going on to take her coumadin" and at other times that these medications caused nausea, vomiting, bruising, nosebleeds. bleeding from the tear ducts, or allergic reaction. (R. at 290, 338, 541, 543.) However, the ALJ found the record showed both that Ms. McDuffie's noncompliance was not excused, and that she would be "much more comfortable and less symptomatic" were she compliant with her treatment plan. (R. at 13, 17.)
With regard to her leg pain and need to elevate her legs, Ms. McDuffie testified that her blood clotting condition makes her legs feel heavy and leaden, and causes her constant pain in her legs of a rushing and throbbing nature (R. at 35); that she cannot go hiking or walk for much of a distance (R. at 41); that because of pain, she cannot walk more than half block without resting, stand for more than ten minutes, or sit for more than an hour without getting up and moving (R. at 42-43); that she needs to elevate her legs when she sits, and spends most of her day lying down or lying back in a recliner (R. at 43-44); that she wears support pantyhose, mostly at home, but that wearing them does not help the pain or prevent blood clots (R. at 68-69); that she quit taking her Heparin (an anticoagulant medication) for a period of time, when she was having badly swollen legs. bruising, and worsening pain in her legs (R. at 71); that on a typical work day, she would have to lie down and elevate her legs for twenty minutes every couple of hours to reduce the pain and swelling in her legs (R. at 76); and that her doctors have told her she needs to elevate her legs in this way (R. at 77). The ALJ found that Ms. McDuffie was
somewhat inconsistent in her testimony regarding how much she elevates her legs, when she does this, for how long and how much the doctors have told her to do this. Initially, the claimant testified that she elevates her legs for about 5 minutes an hour. Later, the claimant testified that she elevates her legs above heart height for several (a couple) hours a day for 20 minutes at a time.
(R. at 16.) But in pointing out these "inconsistencies," the ALJ misstates the record. In fact, Ms. McDuffie testified with respect to the "5 minutes" language: "And I'm suppose to elevate my legs when I'm sitting and I'm suppose to get up and move around for about five minutes like every couple of hours or something." (R. at 39-40.) Likewise, with respect to the "20 minutes" language, Ms. McDuffie testified that, if she were to work a typical work day, she would have to elevate her legs above her heart "every couple of hours . . . for 20 minutes or something." (R. at 76.) These two statements are not inconsistent.
Nor are Ms. McDuffie's statements regarding her need to elevate her legs inconsistent with those of her treating physicians. In a Pulmonary Residual Functional Capacity Questionnaire, Dr. Gregory Elliott, the treating physician for Ms. McDuffie's deep vein thrombosis, has stated that Ms. McDuffie will need to sit in a recliner or lie down for four hours each day for pain relief and that she would need unscheduled breaks during an eight hour work day, during which time she must sit or recline. (R. at 550-53.) Margaret Baldwin, PAC (with Ms. McDuffie's primary care office), similarly completed a Residual Functional Capacity Questionnaire, in which she opined that Ms. McDuffie needs to lie down or recline at least six hours out of an eight hour work day. (R. at 554-57.) The ALJ discounted Dr. Elliott's assessment (and presumably Ms. Baldwin's as well) of Ms. McDuffie's need to lie down or recline, on the basis that it "does not state the reason, or when this should take place and for how long-hence it lacks the specificity needed to be given much weight." (R. at 17.) Such an explanation is sufficiently specific and legitimate to justify the ALJ's disregard for Dr. Elliott's and Ms. Baldwin's assessments on this point. Reyes, 845 F.2d at 245. It is true that Ms. McDuffie has pointed to no medical evidence, either from this questionnaire or from any other medical records by Dr. Elliott or others, that would establish that she needs to elevate her feet above her heart for certain set periods of time throughout the work day. Accordingly, where the ALJ included even in his first hypothetical "the option to elevate [the] legs at chair seat height at will," he has given Ms. McDuffie "the benefit of a doubt." (R. at 17.)
The ALJ found Ms. Baldwin's opinion "limited by the fact that she is not an acceptable medical source under tile regulations." (R. at 19.) However, as Ms. McDuffie's attorney pointed out in the hearing, the questionnaire is signed not only by Ms. Baldwin, but also by a Dr. Johnson. Accordingly, this basis fails to justify ALJ's limited regard for Ms. Baldwin's opinion.
Here, where the ALJ has relied on vocational expert testimony based on hypothetical conditions ostensibly describing Ms. McDuffies's own impairments and limitations, her argument that the ALJ's decision was unsupported by substantial evidence is without merit.
The ALJ decision is therefore AFFIRMED.
SO ORDERED