Opinion
CIVIL ACTION No. 00-2543-KHV
August 23, 2001
MEMORANDUM AND ORDER
Arthur D. Crawford appeals the final decision of the Commissioner of Social Security to deny him disability benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq., and supplemental security income benefits ("SSI") based on disability under Title XVI of the Act, 42 U.S.C. § 1381 et seq. This matter is before the Court on Plaintiff's Brief [In Support Of Petition To Reverse The Decision Of Defendant] (Doc. #7) filed May 23, 2001, which the Court construes as a motion for judgment. For reasons set forth below, the Court overrules plaintiff's motion.
There are two social security disability benefit programs — Disability Insurance for qualified individuals who paid social security taxes for the relevant period, and Supplemental Security Income for individuals who did not. The pertinent regulations are the same for both programs. See Eads v. Sec'y of Dep't of HHS, 983 F.2d 815, 816 (7th Cir. 1993).
Procedural Background
On February 11, 1999, plaintiff filed his applications with the Social Security Administration ("SSA"). He alleged a disability onset date of November 15, 1997. Plaintiff's benefit applications were denied initially and on reconsideration. On October 6, 1999, following a hearing, an administrative law judge ("ALJ") found that plaintiff was not under a disability as defined in the Social Security Act and that he therefore was not entitled to disability or SSI benefits. On September 28, 2000, the Appeals Council, after reviewing additional evidence, denied plaintiff's request for review. The decision of the ALJ therefore stands as the final decision of the Commissioner. See 42 U.S.C. § 405(g), § 1383(c)(3).
Factual Background
The following evidence was presented to the ALJ.
Plaintiff, Arthur D. Crawford, is 39 years old. He completed the tenth grade and later received a GED. See Transcript Of Proceedings Before The Social Security Administration ("Tr.") 29, attached to defendant's Answer (Doc. #6) filed April 10, 2001. He completed one year of college study and trained as a welder. See Tr. 133. From 1982 to 1998, plaintiff worked as a welder. See Tr. 133, 136-42, 157-68.
Plaintiff's medical evidence establishes that he suffers from degenerative disk disease. In December 1996, plaintiff injured his back at work while lifting channel wires at a manufacturing plant.See Tr. 35. On December 10, 1996, plaintiff consulted with Dr. Cody Davis. Dr. Davis reported that plaintiff complained of low back pain but he discovered no evidence of severe pain or of greatly decreased range of motion. See Tr. 205. Dr. Davis ordered an MRI of plaintiff s lumbar spine, which revealed degenerative disk disease at L4-L5 and L5-S1, small central disc herniation at L3-L4, right paracentral disc herniation at L4-L5, and mild bulging of the L5 disc.See Tr. 209.
On January 7, 1997, plaintiff consulted with Dr. John G. Yost, Jr., an orthopedic specialist, who concluded that plaintiff had degenerative disk disease, protruding disk herniation and mild lumbar radiculopathy.See Tr. 220. Dr. Yost instructed plaintiff to start an exercise program and return to work on January 20, 1997 with no restrictions.See id.
On May 2, 1997, plaintiff again injured his back while lifting a large piece of steel at work. Four days later, he consulted Dr. Yost who diagnosed plaintiff with a lumbosacral sprain with disk herniation and lumbar radiculopathy. See Tr. 219. Dr. Yost told plaintiff to stay off work for two weeks and to return for reevaluation at the end of the two week period. See id. On May 20, 1997, Dr. Yost again examined plaintiff. He concluded that plaintiff had a recurrent lumbar sprain, but that it was healing well. See Tr. 218. Dr. Yost noted that he was pleased with plaintiff's progress and released plaintiff to work with no restrictions. See id. Plaintiff returned to work and worked off and on until early 1999. In February or March 1999, plaintiff hurt his back while cutting wood. See Tr. 37, 44. Plaintiff did not see a doctor but he used the medication that the doctors had previously prescribed for him. See Tr. 37.
In 1998, plaintiff's posted earnings were $7,944.86.See Tr. 123. Plaintiff held three different jobs that year. In early 1998, plaintiff operated a weed eater and rebuilt small engines for Highland Park Cemetery. See Tr. 139, 161. At that job, he frequently lifted 20 to 25 pounds. Tr. 139. In April or May 1998, he left that job because he found another job as a welder for Millennium Park/Rail. See Tr. 161. Plaintiff worked at Millennium Park/Rail until June 1998, when he quit because of his back. See id. From October through November 1998, plaintiff worked as a welder at Klein Products of Kansas where he frequently lifted 50 pounds or more and occasionally lifted 100 pounds or more. See Tr. 137. Plaintiff left Klein Products because of back problems. Sometime in 1998, plaintiff worked briefly as a welder for Helm Illustrated. Tr. 118. At Helm, plaintiff frequently lifted 20 to 25 pounds. See Tr. 138. In February 1999, plaintiff worked as a welder for Manpower Temps. See Tr. 165. At Manpower, plaintiff lifted heavy items of 50 pounds or more.See Tr. 52. In a work activity report dated March 14, 1999, plaintiff stated that his employment with Manpower ended because the "job ended, ran out of funds," Tr. 165, but he later testified that he left Manpower so that he could take care of his back, see Tr. 52. In 1999, plaintiff also worked one day a week as a welder doing custom exhaust work at a tire shop. See Tr. 18, 165, 176, 227.
Plaintiff did not seek medical treatment for his back for nearly two years, from May 20, 1997 through April 13, 1999. After plaintiff filed his application for benefits, the Commissioner referred plaintiff to Dr. Brian Libel, a physical therapist, for a range of motion evaluation on the lumbar spine. On April 13, 1999, Dr. Libel examined plaintiff. See Tr. 227. Plaintiff reported that he had hurt his back several weeks earlier while chopping wood. See id. He reported that he had no current complaints, but that he was not doing any significant amount of work. See id. Plaintiff reported that "limitations include working secondary to the lifting and bending which would be required in any job he would be able to find."Id. During the examination, plaintiff displayed significantly reduced range of motion, but validity checks showed that these findings were invalid. See id.
On a questionnaire, plaintiff stated that on July 31, 1998, he obtained a prescription for flexeril from Dr. John H. Spencer.See Tr. 196. No other documentation regarding Dr. Spencer is in the record and plaintiff did not identify him as a treating physician. Elsewhere, plaintiff states that Dr. Yost prescribed flexeril.See Tr. 132. The Court assumes that Dr. Spencer simply renewed plaintiff's earlier prescription or that plaintiff misidentified Dr. Yost as Dr. Spencer in the questionnaire.
On April 27, 1999, Dr. Yost examined plaintiff because of persistent problems of back and leg pain. See Tr. 230. Plaintiff reported that he had problems with pain radiating to his left side and leg.See id. Dr. Yost noted that plaintiff ambulated with good power on his toes and heels, but that he stood with a list. See id. Dr. Yost found a limited range of motion in the lumbar spine, and reflex and sensory deficits in the lower extremities, predominantly in the left.See id. Dr. Yost diagnosed plaintiff with lumbosacral disk herniation with lumbar radiculopathy. See id. Dr. Yost opined that plaintiff had marked difficulty standing or walking which was expected to persist for at least 12 months and result in severe functional limitation. See Tr. 231. Dr. Yost recommended an EMG and MRI study with possible surgical intervention or a rehabilitation program with possible vocational retraining. See Tr. 230.
On June 7, 1999, Dr. M. Rene Hausheer completed a residual functional capacity assessment for plaintiff. See Tr. 248. Dr. Hausheer concluded that plaintiff was capable of lifting 20 pounds occasionally and ten pounds frequently, standing two hours of an eight hour day, and sitting six hours of an eight hour day but that he would have difficulty with postural restrictions. See id., Dr. Hausheer noted that plaintiff's allegations of difficulty in standing and walking were fully credible. See id.
On August 26, 1999, Dr. Kenneth W. Johnson, an associate of Dr. Yost, examined plaintiff. Plaintiff reported that he had not been welding continuously since March or April of 1999. See Tr. 257. Dr. Johnson noted that plaintiff had limited range of motion with left lateral rotation, but that other range of motion was full in all planes.See id. Dr. Johnson noted that plaintiff had radicular pain bilaterally. See id. Dr. Johnson found that plaintiff had lumbar strain, probable herniated nucleus pulposis and L4 radiculopathy on the left. See id. Dr. Johnson noted:
Dr. Yost's recommendations were also valid, yet not adhered to, due to a work injury per patient, and therefore no one agreeing to pay for the procedures recommended. Without these completed, the patient is not deemed to have reached his maximum medical improvement.
* * *
Due to the patient's job requirements, recommendations would be for formal functional capacity evaluation prior to his consideration of return to work and/or a vocational rehabilitation program. This can be accomplished to possibly place the patient within his field with a less strenuous capacity such as in quality control or administration, or management, per patient. No impairment rating can be given . . . until the patient is deemed to have reached maximum medical improvement.
Tr. 258-59. Plaintiff also testified that Dr. Yost told him that "he [could] fix the problem with an operation." Tr. 41.
On November 3, 1999, an EMG test revealed right acute S1 radiculopathy, moderate herniated disk, L4-5, right, and degenerative disk disease, L3-4, right. See Tr. 261, 264. On December 7, 1999, Dr. Yost noted a failure of conservative treatment. He recommended lumbar disk excision and nerve root decompression. See Tr. 264.
Plaintiff testified that his lower back pain starts above the belt line and radiates into his hips and legs. See Tr. 43. Plaintiff said that he felt such pain whenever he over exerted himself or picked up heavy items. See Tr. 43-44. In addition, plaintiff testified that he experienced pain when he turned the wrong way too fast, bent over, etc. See Tr. 45. Plaintiff testified that he is in constant pain and that he cannot recall the last time he was pain free.See id.
Plaintiff testified that he lives alone and is independent in household chores except that he has difficulty with functions involving heavy lifting and bathing. See Tr. 48. Plaintiff does take a significant amount of time to complete some tasks. For example, he testified that it takes him three to four hours to shop because he has to sit down and rest every ten to 15 minutes. See Tr. 50. Plaintiff apparently walks to a store which is two to three blocks from his home. See id. Plaintiff testified that he goes fishing three to four times a week, sometimes up to eight hours per day.See Tr. 51. Plaintiff testified that he cannot comfortably lift more than 15 to 20 pounds, sit longer than ten to 15 minutes at a time or two to three hours of an eight hour work day, or stand longer than 30 minutes at a time or four hours of an eight hour work day. See Tr. 46-47. Plaintiff testified that no doctor was treating his back problems at the time of the hearing. See Tr. 42.
The Commissioner retained Cindy Younger to testify as a vocational expert. The ALJ asked Younger to consider a claimant of plaintiffs age, education and work experience, with a medical record remarkable for lumbar sacral disc deterioration. The ALJ hypothesized that the claimant has a standing tolerance of three to four hours of an eight hour work day, a sitting tolerance of five to six hours of an eight hour work day, but that he must alternate between sitting and standing at approximately 30 minute intervals. See Tr. 55-56. The ALJ also noted that the claimant could tolerate only moderate bending, stooping, kneeling, crouching and crawling. See id. Younger testified that based on the ALJ's description of plaintiff s impairments, he could not perform his past relevant jobs, but that he could perform other work which exists in significant numbers in the economy such as an information clerk, an office helper or an electronics tester. See Tr. 54-58. Younger acknowledged that if the claimant could sit for only ten to 15 minutes at a time for a maximum of two to three hours in an eight hour work day, stand for 30 minutes at a time for a maximum of four hours in an eight hour day, occasionally lift ten to 20 pounds, and frequently lift less than ten pounds, the claimant would not be able to perform any job.See Tr. 59-60.
On a pain questionnaire dated April 20, 1999, plaintiff stated that the last few times he had felt lower back pain were when he was working at McNally's (apparently in May 1997), chopping wood at home (February or March 1999) and lifting a couch. See Tr. 170.
In his order of October 6, 1999, the ALJ made the following findings:
1. The claimant met the disability insured status requirements of the Act on November 15, 1997, the date the claimant stated he became unable to work, and has acquired sufficient quarters of coverage to remain insured through at least December 31, 2003.
2. The claimant has not engaged in substantial gainful activity since November 15, 1997.
3. The medical evidence establishes that claimant has degenerative disc disease of the lumbar spine, an impairment which is severe but which does not meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's statements concerning his impairments and their impact on his ability to work are credible to the extent they indicate an inability to engage in activity exceeding the residual functional capacity set forth below. 5. The claimant retains the residual functional capacity to engage in work at the light exertional level, or work which requires lifting or carrying up to 20 pounds occasionally and up to 10 pounds frequently, sitting up to 6 hours of an 8 hour day, and standing or walking up to 3 to 4 hours of an 8 hour day.
6. The claimant is unable to perform his past relevant work.
7. The claimant's capacity for the full range of light work is diminished by his requirement for position alternation on a 30-minute basis. The claimant is restricted to no more than occasional bending, stooping, twisting, crouching, and crawling.
8. The claimant is 39 years old, a "younger" individual.
9. The claimant has a high school education.
10. The claimant has skilled and semi-skilled work experience but has no transferable work skills.
11. Based on an exertional capacity for light work, and the claimant's age, educational background, and work experience, Sections 404.1569 and 416.969 and Rule 202.21, Table 2, Appendix 2, Subpart P, Regulations No. 4, would direct a conclusion of "not disabled."
12. Although the claimant is unable to perform the full range of light work, he is capable of making an adjustment to work which exists in significant numbers in the national economy. Such work includes employment as an information clerk, with 458,000 such jobs in the national economy, 2,020 of those in Kansas, and 175 in southeast Kansas; an office helper, with 289,000 such jobs in the national economy, 2,630 of those in Kansas, and 525 in southeast Kansas; and an electronics tester, with 259,000 such jobs in the national economy, 1,710 of those in Kansas, and 175 in southeast Kansas. A finding of "not disabled" is therefore reached within the framework of the above-cited rule.
13. The claimant has not been under a disability, as defined in the Social Security Act, at any time through the date of this decision.
Tr. 22-23.
Standard Of Review
The ALJ's decision is binding on the Court if supported by substantial evidence. See 42 U.S.C. § 405(g); Dixon v. Heckler, 811 F.2d 506, 508 (10th Cir. 1987). The Court must determine whether the record contains substantial evidence to support the decision and whether the ALJ applied the proper legal standards. See Castellano v. Sec'y of HHS, 26 F.3d 1027, 1028 (10th Cir. 1994). While "more than a mere scintilla," substantial evidence is only "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). Evidence is not substantial "if it is overwhelmed by other evidence — particularly certain types of evidence (e.g., that offered by treating physicians) — or if it really constitutes not evidence but mere conclusion." Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir. 1985) (citation omitted).
Analysis
Plaintiff bears the burden of proving disability under the SSA.See Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). The SSA defines "disability" as the inability to engage in any substantial gainful activity for at least twelve months due to a medically determinable impairment. See 42 U.S.C. § 423(d)(1)(A) (1996). To determine whether a claimant is under a disability, the Commissioner applies a five-step sequential evaluation: (1) whether the claimant is currently working; (2) whether the claimant suffers from a severe impairment or combination of impairments; (3) whether the impairment meets an impairment listed in Appendix 1 of the relevant regulation; (4) whether the impairment prevents the claimant from continuing his past relevant work; and (5) whether the impairment prevents the claimant from doing any kind of work. See 20 C.F.R. § 404.1520, 416.920 (1996). If a claimant satisfies steps one, two and three, he will automatically be found disabled; if a claimant satisfies steps one and two, but not three, then he must satisfy step four. If step four is satisfied, the burden shifts to the Commissioner to establish that the claimant is capable of performing work in the national economy. See Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988).
Here, the ALJ denied benefits at step five. At step five, the fact finder must determine whether the claimant has the residual capacity to perform other work in the national economy in view of his age, education and work experience. See Bowen v. Yuckert, 482 U.S. 137, 148 (1987). The Commissioner bears the burden of proof at step five. See id. at 146 n. 5. To meet this burden, the Commissioner must show that a claimant can perform work "in the claimant's residual functional capacity category." Talbot v. Heckler, 814 F.2d 1456. 1462 (10th Cir. 1987). Here, the ALJ found that plaintiff was unable to perform the full range of light work because of the necessity of alternating his position, but that he could perform a job which could accommodate such a restriction such as an information clerk, office helper or electronics tester. See Tr. 22-23. In reaching his conclusion, the ALJ agreed that plaintiff had a severe impairment, but rejected plaintiff's testimony that he could sit for only ten to 15 minutes at a time for a maximum of two to three hours of an eight hour work day. See id.
I. Criteria Of Listing 1.05C
Plaintiff first argues that the ALJ should have found that he was disabled at step three because he satisfied Listing 1.05C of the Listing of Impairments. Under Listing 1.05C, an individual is considered disabled if he or she meets the following criteria:
C. Other vertebrogenic disorders (e.g., herniated nucleus puplosus, spinal stenosis) with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2:
1. Pain, muscle spasm and significant limitation of motion in the spine; and
2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.
20 C.F.R. Pt. 404, Subpt. P., App. 1, § 1.05C. The ALJ found that although plaintiff has disc herniation, the current medical evidence did not indicate muscle spasm or motor weakness. See Tr. 17. The ALJ also noted that no treating or examining physician had mentioned findings equivalent in severity to the criteria of any listed impairment.See id.
Plaintiff argues that his pain, loss of reflexes, radiculopathy and muscle weakness has been consistently documented since 1996, and that he suffers lumbar radiculopathy and a herniated disc. Substantial evidence supports the ALJ's finding that plaintiff does not have an impairment listed in Section 1.05C or an impairment equivalent in severity to the criteria listed in that section. The medical evidence establishes that plaintiff suffers from back pain, limited range of motion and some sensory and reflex loss, but the medical evidence at the time of the hearing did not establish any muscle spasm or significant motor loss with muscle weakness. From the Court's review of the record, only one medical report indicates that plaintiff had "paraspinal muscle spasm." Tr. 219. That finding was on May 6, 1997, shortly after plaintiff had injured his back. See id. Two weeks later, Dr. Yost re-examined plaintiff and did not note any muscle spasm. See Tr. 218. In that same report, Dr. Yost noted that he was pleased with plaintiff's progress and released him back to work with no restrictions. See id. Medical evidence at the time of the hearing did not establish that plaintiff had "significant motor loss with muscle weakness." Accordingly, the ALJ's conclusion that plaintiff did not satisfy the criteria of Listing 1.05C is supported by substantial evidence.
Plaintiff has not explained how his impairment is "equivalent" to the one listed in Section 1.05C. The equivalence analysis does not seem to apply in this case. See Brainard v. Sec'y of HHS, 25 F.3d 1055, 1994 WL 170783, at *2 (10th Cir. May 5, 1994) (equivalence analysis has no application where plaintiff claims to suffer from a listed impairment, but simply does not meet the listing's criteria).
II. Evaluation Of Plaintiff's Credibility
Plaintiff argues that the ALJ failed to make proper credibility findings regarding the limitations caused by his back pain. The Tenth Circuit has set forth the proper framework for analyzing evidence of disabling pain. The relevant factors are (1) whether claimant proves with objective medical evidence an impairment that causes pain; (2) whether a loose nexus exists between the impairment and the subjective complaints of pain; and (3) whether the pain is disabling based upon all objective and subjective evidence. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir 1994); Luna v. Bowen, 834 F.2d 161, 163-64 (10th Cir. 1987). In the final step, the ALJ should consider the following factors:
the levels of medication and their effectiveness, the extensiveness of the attempts (medical or nonmedical) to obtain relief, the frequency of medical contacts, the nature of daily activities, subjective measures of credibility that are peculiarly within the judgment of the ALJ, the motivation of and relationship between the claimant and other witnesses, and the consistency or compatibility of nonmedical testimony with objective medical evidence.Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988).
Here, the ALJ concluded that plaintiff's pain was not disabling based upon all objective and subjective evidence. In particular, the ALJ noted that plaintiffs subjective complaints were exaggerated and not disabling because of (1) the absence of sufficient objective medical evidence to support the complaints, (2) the infrequency of plaintiff s attempts to obtain relief, (3) the strenuous nature of the activities which aggravate plaintiff's symptoms, (4) plaintiff's daily activities and work history, and (5) the ALJ's observations of plaintiff at the hearing.
A. Consistency Of Plaintiff's Complaints With Objective Medical Evidence
The ALJ first rejected plaintiffs complaints because they suggested a greater severity of impairment than shown by the objective medical evidence.See Tr. 17; see generally Luna, 834 F.2d at 165-66 (lack of objective medical evidence to support degree of pain alleged is important factor to consider in evaluating claim of disabling pain);see also Talley v. Sullivan, 908 F.2d 585, 587 (10th Cir. 1990) (medical records must be consistent with nonmedical testimony as to severity of pain).
Plaintiff argues that the reports of Drs. Yost and Johnson concluded that his allegations of disabling pain were medically substantiated. Contrary to plaintiff's assertions, these reports do not require a finding of disability. On April 27, 1999, Dr. Yost recommended an EMG and MRI study with possible surgical intervention or a rehabilitation program with possible vocational retraining. See Tr. 230. On August 26, 1999, Dr. Johnson concluded that "Dr. Yost's recommendations were valid, yet not adhered to, due to a work injury per patient, and therefore no one agreeing to pay for the procedures recommended. Without these completed, the patient is deemed not to have reached his maximum medical improvement." Tr. 258, Dr. Johnson further noted:
Due to the patient's job requirements, recommendations would be for formal functional capacity evaluation prior to his consideration of return to work and/or a vocational rehabilitation program. This can be accomplished to possibly place the patient within his field with a less strenuous capacity such as in quality control or administration, or management, per patient. No impairment rating can be given . . . until the patient is deemed to have reached maximum medical improvement.
Tr. 259 (emphasis added). On December 7, 1999, Dr. Yost noted a failure of conservative treatment and recommended surgery (lumbar disk excision and nerve root decompression). See Tr. 264. The reports of Drs. Yost and Johnson suggested surgery and/or a vocational rehabilitation program before plaintiff returned to work. Neither doctor opined that plaintiff would be unable to return to work in any capacity. Indeed, Dr. Johnson's notes reflect that plaintiff himself suggested that he may be able to return to a less strenuous job within his previous field of work. See Tr. 259.
The Commissioner notes that plaintiff's medical evidence from August 26, 1999 through December 7, 1999 was not presented to the ALJ. Plaintiff did present this evidence to the Appeals Council. See Tr. 6-8. The Tenth Circuit has held that "new evidence becomes part of the administrative record to be considered when evaluating the Secretary's decision for substantial evidence." O'Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994). In the instant action, as in O'Dell, however, "consideration of the new evidence does not require a change in the outcome: the ALJ's determination remains supported by substantial evidence." Id.
The Commissioner suggests that plaintiff's failure to go through with the recommended surgery supports the ALJ's conclusions. Because the ALJ did not actually rely on this factor, the Court cannot uphold the Commissioner's denial of benefits on this basis. See Knipe, 755 F.2d at 149 n. 16: Dong Sik Kwon v. INS, 646 F.2d 909, 916 (5th Cir. 1981) (en banc): see also Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000) (`The ALJ's decision must stand or fall with the reasons set forth in the ALJ's decision, as adopted by the Appeals Council.").
Plaintiff also argues that the state agency medical consultant, Dr. Hausheer, found his subjective allegations credible. Dr. Hausheer noted that plaintiff's "primary allegations regard[ing] his inability to stand or walk . . . [are] fully credible." Tr. 248, Dr. Hausheer concluded that plaintiff could not stand for more than two hours out of an eight hour work day. See id. Dr. Hausheer's opinion was based on the statement of Dr. Yost on April 27, 1999. See Tr. 19. Plaintiff testified, however, that he could stand or walk up to 30 minutes at a time and could be on his feet up to four hours of an eight hour work day.See Tr. 47; see also Plaintiff's Brief (Doc. #7) at 3 (plaintiff testified that he could stand for a total of approximately four hours in an eight hour work day). Moreover, the ALJ noted that plaintiff's testimony was supported by his daily activities such as fishing up to eight hours a day, welding, camping and performing automotive repairs. See Tr. 19. Accordingly, the ALJ's decision to reject the portion of Dr. Hausheer's opinion with regard to plaintiff's ability to stand or walk no more than two hours per day is supported by substantial evidence.
B. Extensiveness Of Attempts To Obtain Relief And Their Effectiveness
The ALJ noted that plaintiff did not seek treatment for his back from May 21, 1997 through April 26, 1999. See Tr. 16, 18. Plaintiff does not deny this fact. Indeed, plaintiff testified that no doctor was treating his back problems at the time of the hearing. See Tr. 42. "[I]n an effort to evaluate the veracity of plaintiff s contention that his pain was so severe as to be disabling," the ALJ may consider the frequency of plaintiff's attempts to relieve his pain. Quails v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000); see Huston, 838 F.2d at 1132; see also Social Security Ruling 96-7p, 61 Fed. Reg. 34483, 34487 (S.S. A. July 2, 1996) (persistent attempts to obtain relief of pain or other symptoms, such as by increasing medications, trials of a variety of treatment modalities, referrals to specialists, or changing treatment sources may be strong indication that symptoms are source of distress to individual and generally lend support to allegations of intense and persistent symptoms).
C. Activities Which Aggravate Plaintiff's Symptoms
The ALJ noted that plaintiff's most recent exacerbations have been the result of chopping wood and lifting a couch, activities which exceed the exertional requirements of light work. See Tr. 18. The fact that plaintiff chooses to engage in such strenuous non-work-related activities is facially inconsistent with allegations of disabling pain and the ALJ reasonably decided to so construe the evidence. See generally Social Security Ruling 96-7p, 61 Fed. Reg. 34483, 34485 (S. S. A. July 2, 1996) (ALJ must consider factors that precipitate or aggravate the symptoms).
D. Daily Activities/Work History
The ALJ found that plaintiff's daily activities require significant lifting, sitting, standing and walking (often on uneven surfaces), and indicate the ability to sustain full-time employment despite pain and medication side effects. See Tr. 18. Plaintiff argues that his daily activities are not inconsistent with his complaints of disabling pain because he does house work at his own pace with frequent breaks and he suffers a significant increase in pain after sitting or standing for 15 minutes or walking for 30 minutes. The ALJ noted that plaintiff's activities included household chores (such as cooking, cleaning, dusting, mopping, sweeping and laundry), lawn mowing, automotive repairs, shopping, reading, camping, fishing, visiting friends, watching television and attending movies on a regular basis. See Tr. 18, 171-76. During the period plaintiff alleged he was disabled, his activities also included chopping wood, lifting a couch and riding a motorcycle.See Tr. 18, 44, 170, 227, 257. Such household chores and recreational activities are inconsistent with allegations of disabling pain. See Potter v. Sec V of HHS, 905 F.2d 1346, 1349 (10th Cir. 1990). In addition to his household and recreational activities, the ALJ noted that from May 1997 through April 1999, plaintiff worked at various welding and laborer jobs. See Tr. 18, From October through November 1998, plaintiff worked as a welder at Klein Products of Kansas where he frequently lifted 50 pounds or more and occasionally lifted 100 pounds or more. See Tr. 137. The fact that plaintiff would attempt to lift items of 100 pounds or more strongly discredits his testimony that he was disabled during that period. Working at relatively strenuous jobs during the claimed disability period is inconsistent with allegations of disabling pain. See Brainard, 1994 WL 170783, at *3 (work history belied claim of disabling pain): see also Bentley v. Shalala, 52 F.3d 784, 786 (8th Cir. 1995) (applying for jobs during claimed disability period shows that plaintiff did not view pain as disabling); Barrett v. Shalala, 38 F.3d 1019, 1024 (8th Cir. 1994) (seeking work inconsistent with disability).
The Court recognizes that since 1997, plaintiff left nearly every welding job because of back pain. The fact that plaintiff could adequately perform these strenuous jobs for one to two month intervals, however, suggests that at a minimum, plaintiff could perform light sedentary work.
E. ALJ's Observations At Hearing
Plaintiff testified that he could only sit for ten to 15 minutes without a significant increase in back pain. See Tr. 46. Plaintiff further estimated that he was able to sit a total of two to three hours over the course of an eight hour day, but only if he were allowed to alternately sit and stand in ten to 15 minute increments.See Tr. 46-47. The ALJ noted that plaintiff sat on a hard chair throughout the 50 to 60 minute hearing without any apparent discomfort.See Tr. 18. The ALJ may consider his own assessment of a plaintiff's behavior and demeanor during the hearing as part of his credibility determination. See Quails, 206 F.3d at 1373;Hubbard v. Sullivan, 943 F.2d 57, 1991 WL 172661, at *3 (10th Cir. Sept. 5, 1991); see also Broadbent v. Harris, 698 F.2d 407, 413 (10th Cir. 1983) ("determination of credibility is left to the observations made by the [ALJ] as the trier of fact").
F. Overall Evaluation Of Credibility Factors
In reviewing the ALJ's credibility determinations, the Court should "defer to the ALJ as trier of fact, the individual optimally positioned to observe and assess witness credibility." Casias v. Sec'y of HHS, 933 F.2d 799, 801 (10th Cir. 1991). "Credibility is the province of the ALJ." Hamilton v. Sec'y of HHS, 961 F.2d 1495, 1499 (10th Cir. 1992). At the same time, the ALJ must explain why specific evidence relevant to each factor supports a conclusion that a claimant's subjective complaints are not credible. See Kepler v. Chater, 68 F.3d 387. 391 (10th Cir. 1995). "Findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings."Id. (quoting Huston, 838 F.2d at 1133) (footnote omitted)). "In making a finding about the credibility of an individual's statements, the adjudicator need not totally accept or totally reject the individual's statements." See Social Security Ruling 96-7p, 61 Fed. Reg. at 34486. Rather, the ALJ "may find all, only some, or none of an individual's allegations to be credible." See id.
Here, the ALJ found some, but not all, of plaintiff's allegations to be credible. Plaintiff primarily objects because the ALJ did not accept his testimony that he could sit only ten to 15 minutes at a time and a maximum of two to three hours per day. See Plaintiff's Brief (Doc. #7) at 4. Instead, the ALJ found that plaintiff had to be able to alternate sitting and standing every 30 minutes and sit no more than five to six hours per day. Substantial evidence supports the ALJ's conclusion. Both residual functional capacity assessments, initially and on reconsideration, stated that plaintiff could sit about six hours per day with no requirement to alternate sitting and standing. See Tr. 235, 243, 248. In a pain questionnaire dated April 14, 1999, plaintiff indicated that he had difficulty standing and walking, and essentially any type of movement, but he did not note any difficulty in sitting for prolonged periods. See Tr. 170, In the pain questionnaire, plaintiff stated that he experienced back pain whenever he lifted light to heavy objects, with no pain noted for prolonged sitting. See id. He also reported that he is able to watch movies for approximately six to eight hours per week, see Tr. 174, and watch television or listen to the radio everyday, sometimes for the entire day, see Tr. 173. Finally, no medical evidence reports any back pain associated with sitting 30 minutes at a time. Although the ALJ could have discussed the evidence in greater detail, the record need only demonstrate that he considered all of the evidence; "an ALJ is not required to discuss every piece of evidence." Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (citing Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)). The Court finds that the ALJ's decision to reject plaintiff's testimony that he could sit for only ten to 15 minutes at a time and a maximum of two to three hours per day is supported by substantial evidence.
III. Hypothetical Questions To Vocational Expert
Plaintiff argues that the ALJ's hypothetical was improper because it did not include all of plaintiff's subjective allegations of pain. As the Commissioner correctly points out, however, a hypothetical need not include all limitations to which a claimant has testified. The ALJ may restrict his questions to those limitations which he has found to exist based upon substantial evidence in the record. See Gay v. Sullivan, 986 F.2d 1336, 1341 (10th Cir. 1993); Jordan v. Heckler, 835 F.2d 1314, 1316 (10th Cir. 1987): Davis v. Apfel, 40 F. Supp.2d 1261, 1269 (D. Kan. 1999). The ALJ's hypothetical question tracked his conclusions regarding the severity of plaintiff s impairments and therefore it was not incomplete. Accordingly, the Court rejects plaintiff's objection to the hypothetical question.
IT IS THEREFORE ORDERED that Plaintiff's Brief [In Support Of Petition To Reverse The Decision Of Defendant] (Doc. #7) filed May 23, 2001, which the Court construes as a motion for judgment, be and hereby is OVERRULED.
IT IS FURTHER ORDERED that the Judgment of the Commissioner is AFFIRMED.
( ) JURY VERDICT. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
(X) DECISION BY THE COURT. This action came to decision by the Court. The issues have been considered and a decision has been rendered.IT IS ORDERED AND ADJUDGED pursuant to the Memorandum And Order filed August 23, 2001, the Judgment of the Commissioner is AFFIRMED.