Opinion
Case No. 8:01CV582
July 1, 2002
MEMORANDUM AND ORDER
This matter is before the Court on the denial, initially and on reconsideration, of the Plaintiff's supplemental security income ("SSI") benefits under Title XVI of the Social Security Act ("Act"), 42 U.S.C. § 1381-1383 (2002). The Court has carefully considered the record and the parties' briefs.
PROCEDURAL BACKGROUND
On September 22, 1997, the Plaintiff, Shirley M. Holsinger, filed an application for SSI benefits based on disability under Title XVI. (Tr. 202-05.) The claim was denied initially and on reconsideration. (Tr. 150-54; 157-62.) Holsinger requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 163-66.) Administrative hearings were held before ALJ Cheryl M. Rini on October 14, 1998 (Tr. 45-59), June 16, 1999 (Tr. 60-125), and August 4, 1999 (Tr. 126-47). On October 14, 1999, the ALJ issued a decision finding that Holsinger was not "disabled" within the meaning of the Act or eligible for SSI benefits. (Tr. 20-40.) On October 3, 2001, the Appeals Council denied Holsinger's request for review, after considering additional evidence. (Tr. 6-9, 530-669.) Holsinger now seeks judicial review of the ALJ's determination as the final decision of the Defendant, the Commissioner of the Social Security Administration ("SSA"). (Filing No. 1.)
Jo Anne B. Barnhart, the new Commissioner of Social Security, is substituted for Larry G. Massanari, Acting Commissioner of the Social Security Administration, as Defendant pursuant to Federal Rule of Civil Procedure 25(d)(1).
Holsinger claims that the ALJ's decision was incorrect because the ALJ: 1) incorrectly ruled that Holsinger could return to her past relevant work; 2) failed to include all impairments in the hypothetical question; and 3) found Holsinger's testimony not credible. Holsinger also argued that because the Appeals Council received additional relevant evidence, the Council should have remanded her case to the ALJ for a new hearing.
Upon careful review of the record, the parties' briefs and the law, the Court concludes that the ALJ's decision denying benefits is supported by substantial evidence on the record as a whole. Therefore, the Court affirms the Commissioner's decision.
FACTUAL BACKGROUND
Holsinger's date of birth is February 8, 1951. (Tr. 206.) She is now fifty-one years old. ( See Tr. 65.) Holsinger is five feet, six inches tall, and at the time of the hearing she weighed 130 pounds. (Tr. 100.) Holsinger has had ten years of formal education, earned her GED, and attended Metropolitan Community College for approximately eighteen months in a dental assistant program. (Tr. 83-84.)
Holsinger's Testimony
At the hearing, Holsinger testified that she has not worked since September 11, 1997, the onset date of her alleged disability. (Tr. 85.) She testified that she has not received workers compensation, unemployment or other benefits. (Tr. 65, 132.) She testified that in the past she held such jobs as: hand packager for Skylark Meats for about eight months to one year; machine packager for Airlite Plastics for about one year; vacuum plastics machine operator for a short period of time; envelope machine operator for six to eight months; dishwasher at a restaurant; warehouse worker; and optical lense washer. (Tr. 66-80.) For a period of time before August 1997, Holsinger did not work. During that time, she cared for her father before his death. (Tr. 85, 315.)
Holsinger testified that she takes the following medications: Premarin; Zoloft; Trazodone; Ultram; and a muscle relaxant. (Tr. 87, 95-96.) Holsinger testified to her morning routine: rising at 7:30 a.m.; making coffee; praying; talking with her daughter on the telephone for twenty to thirty minutes; doing T-shirt artwork; reading; walking around her apartment complex and to get her mail; and taking the bus to her appointments. (Tr. 88-89.) Holsinger stated, however, that she walks slowly and with difficulty because of disorientation and weakness in her left leg that causes her to stumble. (Tr. 92.) Holsinger testified that she does her own dishes, dusts the floors and furniture, washes her clothes, cleans her windows, takes out her trash, and goes to the grocery store. (Tr. 89-90, 101.) Holsinger stated that she relies on family members to help her with chores such as vacuuming and scrubbing or mopping the floors. (Tr. 91.) Holsinger testified that she has trouble bending and stooping. (Tr. 93.) She stated that she bathes herself in her specially equipped shower. She can dress herself, but to avoid doing so she stays in pajamas or sweat clothes unless she has to go out. (Tr. 102.) Holsinger testified that she does not eat meals. Rather, she eats foods that demand little, if any, preparation or utensils in part because she lacks the utensils. (Tr. 102-03.) Holsinger testified that she has difficulty concentrating, and she tires easily. Her blurred vision makes reading difficult. (Tr. 92, 103, 105.) She testified that she does not watch television, because she does not like to sit. (Tr. 92.) Holsinger naps daily for thirty to forty minutes. (Tr. 95.) Holsinger is right-handed, and she underwent surgery on her right arm. Holsinger testified that since her surgery she has difficulty lifting objects such as a gallon of milk with her right hand. (Tr. 103-04.) Holsinger stated that she does not experience the same problems with her left hand. (Tr. 105.)
Holsinger testified that she was seeing her treating physician, Dr. Terry Davis, of Douglas County Hospital Primary Health Care Clinic, twice monthly. (Tr. 93-94, 113.) Holsinger testified that she experienced heart palpitations or heart "flutters," "[q]uite a few times" daily. (Tr. 97.) To alleviate the palpitations, Holsinger stated that she breathes deeply and sometimes lies down for fifteen to twenty minutes. (Tr. 98.) Holsinger testified that she experiences continuous pain in her lower back, her left hip, and burning down her leg and in her toes. (Tr. 98.) Holsinger stated that she lies down with a heating pad when the pain is severe, usually twice daily. (Tr. 99.) Holsinger testified that her back symptoms increase with high humidity. (Tr. 100.) Holsinger testified that she experiences bowel problems which have yielded no diagnosis. Holsinger stated that dietary changes failed to alleviate her bowel symptoms. (Tr. 100.) Holsinger also testified that she has anxiety attacks and mood swings approximately three or four times per day. (Tr. 105-06.) Holsinger testified that she attended physical therapy for approximately one and one-half months. (Tr. 137.)
Vocational Expert's Testimony
Testimony was also heard from a vocational expert ("VE"), Gayle Tichauer, under contract with the SSA. (Tr. 139-46.) The VE was presented with seven hypotheticals. The first hypothetical assumed: Holsinger's vocational profile; a disregard of Holsinger's testimony; the ability to lift or carry fifty pounds occasionally and twenty-five pounds frequently; standing or sitting for at least six hours per eight-hour day with breaks every two hours; the ability to balance and kneel but perform other postural maneuvers only occasionally; no manipulative, visual or communicative limitations; the inability to work at protected heights; no other environmental limitations. With these limitations, the VE opined that Holsinger could return to all of her past work. (Tr. 142.)
Gayle Tichauer's curriculum vitae is in the record. (Tr. 183-84.)
The second hypothetical assumes all of the limitations included in the first hypothetical, with the following additional "limitations," or abilities to: "understand, remember and carry out simple instructions and one to four step procedures;" "respond appropriately to supervisors and coworkers and usual work situations;" and "deal with changes in a routine work setting and . . . exercise judgment." (Tr. 142-43.) With these limitations, the VE stated that Holsinger could return to all of her past work.
The third hypothetical is the same as hypothetical number two, with the following difference: the ability to only "lift or carry 20 pounds occasionally, ten pounds frequently." (Tr. 143.) The VE testified that, under these restrictions, Holsinger could return to all of her past work.
The fourth hypothetical is identical to hypotheticals number two, with a lifting restriction of ten pounds occasionally and small objects frequently. (Tr. 143.) Under this hypothetical, Holsinger could return to her past relevant work of packaging machine operator, as she performed the job. (Tr. 143-44.)
The fifth hypothetical is the same as number four, with the change that Holsinger could carry out only one- to two-step procedures. The VE opined that, under this scenario, Holsinger could perform the packaging machine operator position.
The sixth hypothetical is the same as the fifth hypothetical, with the following differences: the ability to walk or stand for only one hour, then again be on her feet for one hour after sitting down for a period of time not to exceed five minutes, totaling at least six hours on her feet out of an eight-hour day; and the ability to sit for only one hour, then again sit for one hour after being up and moving about for a period of time not to exceed five minutes, totaling at least six hours' sitting out of an eight-hour day. The VE stated that, with these restrictions, Holsinger could not return to her past work, but that she "possibly could do some catering positions" that would allow alternating sitting and standing. (Tr. 145.)
Finally, the seventh hypothetical assumes that Holsinger's testimony is credible, including her description of her limitations. The VE stated that, under such restrictions, Holsinger could not return to her past relevant work and would have a difficult time returning to any other type of work. (Tr. 145.) The VE based her opinion on Holsinger's: description of her difficulty grabbing and grasping objects with her hands; ability to lift less than ten pounds with her right hand; need to lie down when experiencing heart palpitations; and the need to lie down for at least thirty minutes due to her constant back pain. (Tr. 145-46.)
Documentary Evidence Before the ALJ
In addition to oral testimony, the ALJ considered additional evidence. On May 8, 1997, Holsinger was seen at the University of Nebraska Medical Center for a lumbar sprain. Lorcet was prescribed. (Tr. 306.) On June 21, 1997, Holsinger was diagnosed with a moderate to severe enlargement of her uterus with several large fibroid tumors. (Tr. 302.) On October 22, 1997, Holsinger was seen at Primary Health Care, and she was diagnosed with depression and a viral cold. A trial of antidepressant medication was noted. (Tr. 330.)
On November 24, 1997, Andrzej Wasiak, M.D. saw Holsinger for lower back pain, attributed by Holsinger to lifting a heavy box at work. (Tr. 286.) Holsinger also complained of heavy menstrual bleeding during the previous year combined with dizziness, blurred vision, and mood swings. Holsinger noted that a hysterectomy was recommended. Holsinger stated that the symptoms affected her ability to sit or walk for long periods of time. She also described difficulty lifting objects weighing more than twenty pounds. (Tr. 286.) Dr. Wasiak's impression was a history of lower back pain and uterine fibroids. Based on his examination and x-rays, he found her complaints of constant back pain "exaggerated." (Tr. 288.) He also opined that her symptoms such as heavy menstrual bleeding, dizziness, headache, and depression could be related to her uterine fibroids and should improve with proper treatment. (Tr. 288.)
On January 7, 1998, Michael Gillespie, Ph.D., wrote a "psychiatric" evaluation following his examination of Holsinger pursuant to a primary health care referral. Dr. Gillespie found that Holsinger expressed "no significant depressions." (Tr. 318.) His impression was adjustment disorder with depressed mood and history of past alcohol abuse. He based her depressed mood on stressors such as conflict with her daughter, unemployment, health concerns and marginal social support. (Tr. 318.)
On January 14, 1998, James R. Dunlap, M.D. noted that Holsinger had a history of depression which had been treated successfully with Zoloft. He also indicated that Holsinger was awaiting surgery on her fibroid tumors. (Tr. 310.) On January 19, 1998, Holsinger was admitted to the hospital for a total hysterectomy. She was discharged on January 22, 1998. (Tr. 342.) On January 30, 1998, Holsinger was seen for a followup visit to her surgery. Although "feeling a little weepy," she stated that she was not "depressed" and denied appetite or sleep problems. Notes reflect that Holsinger was joking and laughing, and that her affect was appropriate. Her dispirited mood appeared to result from her difficult recovery from her surgery. (Tr. 356.)
On February 23, 1998, Holsinger was seen at the Douglas County Hospital, complaining of continued low back pain that had bothered her for more than one year. (Tr. 380.) While Holsinger complained of difficulty squatting, sitting, lying, standing, bending or lifting, observation showed that she moved without difficulty during the examination. Holsinger also complained of vision problems. The assessment was "chronic low back pain secondary to mechanical strain and deconditioning," and "[i]mpaired visual acuity due to normal age changes." (Tr. 380.)
On February 27, 1998, Holsinger was seen at the University of Nebraska Ob/Gyn Clinic for continued pain in her hip, back, left thigh and incision site. The pain was found to be of "unknown origin." (Tr. 355.) On April 3, 1998, therapy notes reflect Holsinger's complaints of emotional upset over being denied disability payments, explaining that she had worked long years and paid into the system. (Tr. 374.) On the same day, Holsinger was seen by Frederic Ogren, M.D., at the University of Nebraska for a swollen lymph node and difficulty in swallowing. Tests were normal, and Dr. Ogren's impression was dysphagia. (Tr. 349.)
"Dysphagia" is defined as "[d]ifficulty in swallowing." Stedman's Medical Dictionary 554 (27th ed. 2000).
Notes form the Douglas County Hospital dated May 5, 1998, showed that Holsinger exhibited "very slight muscoskeletal dysfunction" and "few signs of discomfort or pain." (Tr. 370.) An exercise program and return to physical therapy was recommended. (Tr. 370.) On July 6, 1998, Holsinger was seen for chest tightness and tingling hands. There were no physical findings, and a recent EKG was noted as normal. The impression was anxiety disorder due to stress experienced prior to the examination. (Tr. 367.) Therapy notes indicated that on August 3, 1998, Holsinger said she had a "serious cardiac condition and migraine headache." (Tr. 365.) Notes further reflect on August 13, 1998 that a psychiatric diagnosis was recommended. (Tr. 365.)
On August 17, 1998, Julian Fabry, Ph.D., a psychologist, saw Holsinger for a psychological evaluation. (Tr. 361.) Dr. Fabry noted an "underlying mood of depression." He diagnosed dysthymia, a history of alcohol abuse in remission, and possible post traumatic stress disorder. (Tr. 362.)
"Dysthymia" is defined as "[a] chronic mood disorder manifested as depression for most of the day, more days than not, accompanied by" symptoms including: poor appetite; overeating; insomnia; hypersomnia; low energy; fatigue; low self-esteem; poor concentration; difficulty making decisions; and feelings of hopelessness. Stedman's Medical Dictionary, supra, at 556.
On August 28, 1998, Holsinger was seen at Bergan Mercy Hospital for lower extremity venous doppler studies, which showed excellent bilateral leg flow and no clots. (Tr. 359.)
On November 21, 1998, Dr. Fabry again performed a psychological evaluation. Holsinger was referred by the Disabilities Determination Services for a limited interview in conjunction with testing. (Tr. 390.) Dr. Fabry noted that Holsinger's mood suggested depression. She complained of sleep problems, a lack of appetite and energy, and suicidal thoughts. She described sexual abuse experienced when she was a child. Dr. Fabry noted that she was involved in individual psychotherapy and was taking prescribed medication for her "depressive tendencies." (Tr. 390-91.) The Wechsler Adult Intelligence Test revealed difficulties in the areas of attention, concentration, sustained attention, and nonverbal abstracting, but adequate vocabulary, problem solving skills and concept formation. (Tr. 392.) The Minnesota Multiphasic Personality Inventory II ("MMPI") results, and additional related comments, were reported as follows:
The results . . . are questionable. The following results should therefore take this into consideration. The clients [sic] overall profile is suggestive an individual who has what is typically referred to as a suicidal profile. These individuals are usually in some type of distress, although the client may have learned to live with it. They suffer from extreme anxiety, maladaptive behavior, along with having been subjected to some type of stress or trauma for a prolong [sic] period of time. There also is some indication that the client has a significant substance history. These individuals have significant health related issues along with a low self-esteem, anger, cynicism, depression and poor treatment response.
It should be noted that these latter findings seem to be somewhat contradictory from what was discovered in the client's cognitive findings. Clinical interpretations of those results suggest that the client is probably a good candidate for further therapeutic interventions.
(Tr. 392.)
Dr. Fabry diagnosed: post-traumatic stress disorder; dysthymia history; and history of alcohol abuse. Holsinger was also diagnosed with a GAF of 60. (Tr. 393.) In addition, Dr. Fabry completed a summary of Holsinger's current level of functioning by answering specific yes/no questions. The answers indicate, among other findings, Dr. Fabry's determination that Holsinger had the ability to carry out short and simple instructions under ordinary supervision and to relate appropriately to coworkers and supervisors. (Tr. 394.) Dr. Fabry also completed a "Medical Statement of Ability to do Work Related Activities (Mental)." (Tr. 395.) Dr. Fabry rated Holsinger "good" in the following abilities, among others: following work rules; relating to coworkers; using judgment; interacting with supervisors; functioning independently; and understanding, remembering and carrying out simple, detailed and complex job instructions. Holsinger was rated "fair" in other abilities: using judgment; dealing with work stresses; maintaining attention/concentration; and demonstrating reliability. (Tr. 396.)
"GAF"is defined as the "Global Assessment of Functioning Scale," useful for "tracking the clinical progress of individuals in global terms, using a single measure." Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 30 (4th ed. 1994).
On December 1, 1998, Michael Schooff, M.D., reported his "disability physical examination" of Holsinger. (Tr. 399.) Apparently, the evaluation was on November 24, 1998. Holsinger's chief complaint was back pain worsened with sitting, standing, lying, or walking. Holsinger also complained of heart palpitations and blurred vision. (Tr. 400.) She stated that she alternated sitting and standing all day. Holsinger told Dr. Schooff that she had never been referred to physical therapy or prescribed any medication for her back pain. Dr. Schooff noted that Holsinger had never tried alternative therapies. (Tr. 399.) Dr. Schooff's assessment stated:
The report refers to November 24, 1995, which appears to be a typographical error.
1. This is a 47-year-old female with the most significant complaint of back pain. From her history, she has had a very incomplete evaluation for this pain and very limited if any specific therapies for that. She certainly has pain and dysmobility in her back; however, it is uncertain what functionality she may be able to regain if treated appropriately for her problems;
2. The patient also has an unknown heart irregularity that is intermittent in nature. Her heart was certainly regular on my examination today. If this is more of an issue, she would need a workup to include possibly a Holter monitor and/or echocardiogram.
3. Blurred vision which seems intermittent in nature, and she has just recently completed a full optometric examination. . . .
(Tr. 401.)
Dr. Schooff took x-rays of Holsinger's left hip and lumbosacral spine, which were normal. (Tr. 402, 405.) Dr. Schooff evaluated Holsinger's functional limitations, recommending: 1) lifting less than two pounds, and less than one pound "frequently," defined as from one-third to two-thirds of an eight-hour day; 2) standing, walking, or sitting no more than four hours daily, and fifteen to twenty minutes at time; and 3) only occasional climbing and kneeling, and no balancing, stooping, crouching, or crawling. (Tr. 406-08.) A progress note from the Douglas County Hospital and report from St. Joseph's Hospital stated that an MRI performed on February 10, 1999 of Holsinger's lumbosacral spine showed a small tear in the L1-2 disk, but no disc herniation, central canal stenosis, or foraminal narrowing. (Tr. 435, 461-62.)
Additionally, the report from St. Joseph's stated:
FINDINGS: Small Schmorl's node along the superior endplate of T11. Prominent Schmorl's node along the superior endplate of L1 as well. Low signal involving the inferior endplate at T12 likely relates to Schmorl's node as well, however moderate amount of surrounding marrow edema suggests that this is probably acute.
(Tr. 461.)
The impression was stated as follows:
1. DEGENERATIVE CHANGES OF THE LUMBAR SPINE AS DETAILED ABOVE, MOST PRONOUNCED AT L4-5 and L1-2.
2. THREE SCHMORL'S NODES, ONE AT THE INFERIOR ENDPLATE OF T12 APPEARS ACUTE.
(Tr. 462.)
In discussing the results of the MRI with Holsinger, the need for increased exercise was also reviewed. Also recommended was physical therapy twice weekly. (Tr. 435.)
On May 20, 1999, Holsinger underwent testing and evaluation at the Creighton University Cardiac Center. Holsinger complained of left-sided chest pain that sometimes radiated into her back, shortness of breath, lightheadedness, and blurry vision. (Tr. 497.) An electrocardiogram and an echocardiogram were normal. A stress test was stopped after six minutes due to shortness of breath and leg fatigue, but showed no significant ST-T wave changes. Thomas P. Pagano, M.D., found that Holsinger's chest pain was atypical, and her stress test showed mild impairment of her exercise capacity. Holsinger was advised to stop smoking and increase her exercise by starting to exercise from twenty to thirty minutes a day five times weekly. She was also instructed to obtain a lipid profile, have a chest x-ray and pulmonary function studies, and advised to contact Donald Frey, M.D., her treating physician, for possible smoking cessation. (Tr. 499.)
Holsinger failed to go to her first physical therapy session, which was not scheduled until June 1, 1999. (Tr. 518.) Physical therapy notes of June 17, 1999, showed no significant musculoskeletal limitations, noting that "[a]ny limitations on her part at this point would be due to her subjective complaints of pain and behavior." (Tr. 517.) Holsinger was instructed in back exercises, and she was to return to therapy three times weekly for six weeks. (Tr. 517.) Holsinger performed well for three physical therapy sessions (Tr. 514-16), canceled one appointment and failed to show for the next session. She later explained that these absences were due to illness. (Tr. 511-13.)
Documentary Evidence Submitted to the Appeals Council
Additional evidence was submitted to the Appeals Council, summarized as follows. (Tr. 530-669.) On August 18, 1999, Holsinger saw Edward Schima, M.D., with the Omaha Neurological Clinic. Dr. Schima's impression was: 1) chronic lumbosacral strain; and 2) possible peripheral neuropathy. (Tr. 533.) Dr. Schima interpreted the February 1, 1999, MRI as showing degenerative change at L1-2 and L4-5. Holsinger was given an exercise handout and directions along with a new medication, Neurontin. If the pain persisted, Dr. Schima recommended an epidural block. (Tr. 534.)
On December 2, 1999, Douglas County Health referred Holsinger to the University of Nebraska Medical Center Pain Clinic. (Tr. 555.) Shawn Pettis, M.D., assessed the following: 1) degenerative disk disease; and 2) myofascial pain. (Tr. 544.) Holsinger reported smoking forty-six cigarettes daily. (Tr. 543.) Dr. Pettis recommended an epidural steroid injection. (Tr. 544.) On September 23, 1999, she received the first injection, which provided some relief. On January 18, 2000, she received her second injection. (Tr. 539.) However, Holsinger reported to Dr. Pettis that the injections did not help "at all," and therefore Dr. Pettis ordered a TENS unit, stating that he had no other suggestions for her persistent low back pain. If the weakness noted in her left leg persisted, Dr. Pettis recommended an electromyelogram and nerve conduction studies. (Tr. 622.) Douglas County Hospital notes reflected that Holsinger still reported pain, despite the TENS unit. (Tr. 575.)
On January 12, 2000, Dr. Gillespie, updated his previous psychological evaluation. He noted that she had "somewhat improved" since his initial evaluation in January 1998. Dr. Gillespie noted that her financial and physical problems affected her mood and daily functioning. (Tr. 578.) His Axis I diagnosis was dysthymia and alcohol abuse in remission. (Tr. 579.)
Between October 19, 1999, and January 11, 2000, Holsinger was seen at the Douglas County Hospital by Amy Schuett, M.D. On January 28, 2000, Dr. Schuett included the following impressions in a letter to Ms. Clarkson:
Despite several trials of antidepressants over the last two years [Holsinger] continues to have a persistent low mood. She continues to complain of sleep disturbance, problems with appetite, energy and irritability. She also has chronic back pain which seems to contribute to her low mood.
As result [sic] of her dysphoric mood, [Holsinger] has trouble with motivation and energy. She has passive wishes to die at times but no suicidal thoughts. She tends to isolate herself from others and copes with stressors poorly.
I would expect her chronic low mood to persist although some improvement may be expected with ongoing regular therapy and medications. However, I do not expect the patient to improve over the next year greatly.
I have enclosed a Functional Capacity Assessment for Ms. Shirley Holsinger. I do believe Ms. Holsinger has very limited ability to engage in substantial gainful work activity over the next year.
(Tr. 581.)
In completing the Functional Capacity Assessment, Dr. Schuett noted marked limitations for the following: 1) "[t]he ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances"; and 2) "[t]he ability to complete a normal work-day and work week without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods." (Tr. 582.) Both of those categories were originally marked as "[m]oderately limited," and then the ratings were changed to "[m]arkedly limited." Moderate limitations were assessed for the following abilities: 1) maintaining attention and concentration for extended periods; 2) interacting appropriately with the general public; and 3) accepting instructions and responding appropriately to supervisors. All other fourteen areas were rated "[n]ot significantly limited." (Tr. 582-83.)
On March 14, 2000, pursuant to the referral of Holsinger's present counsel, Mary P. Clarkson, Holsinger was referred to Jay Parsow, M.D., P.C., for an evaluation. (Tr. 584.) Dr. Parsow found the following: 1) chronic low back pain; 2) referred leg pain; 3) history of headaches; 4) referred upper limb symptoms; and 5) chronic pain syndrome. (Tr. 586.) Dr. Parsow performed manual therapy, and he recommended a change in medication, "office-based therapy," continuing "off-work status," and caffeine and cigarette cessation. (Tr. 587.) Dr. Parsow performed manual therapy on Holsinger from March 17, 2000 through May 15, 2000. (Tr. 589-601.) On September 9, 2000, Dr. Parsow evaluated Holsinger's functional capacity to include the following limitations: occasional lifting of ten pounds; frequent lifting of less than ten pounds; ability to stand and/or walk at least two hours in an eight-hour day; ability to sit for less than six hours in an eight-hour day; no ladder climbing; occasional ramp/stair climbing, balancing, stooping, kneeling, crouching, and crawling; and occasional reaching. Dr. Parsow noted no visual limitations. (Tr. 664-69.)
THE ALJ'S DECISION
The ALJ noted that Holsinger was found not "disabled" pursuant to section 1614(a)(3)(A) of the Act based on her September 16, 1997, application for SSI benefits. More specifically, the ALJ framed the issues as: 1) whether Holsinger was under a "disability;" and, if so (2) when the disability began, and the duration of the disability. (Tr. 21.)
The ALJ followed the five-step sequential evaluation process set out in 20 C.F.R. § 416.920 (2001) to determine whether Price was disabled, considering:
any current work activity, the severity of any medically determinable impairment(s), and the individual's residual functional capacity with regard to his or her ability to perform past relevant work or other work that exists in the regional and national economies. This latter step requires an assessment of the individual's age, education and past work experience.
(Tr. 21.)
Following this analysis, the ALJ found that Holsinger is not disabled. (Tr. 40.) Specifically, at step one the ALJ found that, since September 11, 1997, Holsinger has not performed substantial gainful work activity. (Tr. 21.) At step two, the ALJ found that Holsinger has two medically determinable impairments that are "severe" within the meaning of the Act's regulations: mild degenerative disc disease; and dysthymia. (Tr. 29.) At step three, the ALJ found that Holsinger's medically determinable impairments, either singly or collectively, do not meet any section of Appendix 1 to Subpart P of the Social Security Administration's Regulations No. 4, known as the "listings." (Tr. 39.) However, the ALJ stated that Holsinger's impairments have resulted in the following limitations in Holsinger's ability to perform work-related functions:
to lift and carry no more than 20 lbs occasionally, 10 lbs frequently; stand/walk at least 6 hours in an 8 hour day with normal breaks meaning about every 2 hours; sit for at least 6 hours in an 8 hour day with normal breaks, again meaning about every 2 hours; can frequently balance and kneel but can perform all other postural maneuvers only on an occasional basis. She has no manipulative, visual or communicative limitations but can not work at unprotected heights. There are no additional environmental limitations. She is only able to understand, remember and carry out simple instructions and one to four step procedures; but can respond appropriately to supervisors and co-workers and usual work situations; can deal with changes in a routine work setting; and can exercise judgment.
(Tr. 39.)
At step four, the ALJ determined that, despite the limitations set forth in step three, Holsinger can perform her past relevant work as a machine packager, a machine operator, a warehouse worker, and an envelope machine operator as she previously performed those jobs. The ALJ found that Holsinger's testimony was not credible in light of the criteria set forth in 20 C.F.R. § 416.929 (2001).
STANDARD OF REVIEW
In reviewing an ALJ's decision to deny disability benefits, a district court does not reweigh evidence or the credibility of witnesses or revisit issues de novo. Bates v. Chater, 54 F.3d 529, 532 (8th Cir. 1995); Harris v. Shalala, 45 F.3d 1190, 1193 (8th Cir. 1995). Rather, the district court's role under 42 U.S.C. § 405(g) is limited to determining whether substantial evidence in the record as a whole supports the Commissioner's decision and, if so, to affirming that decision. Harris, 45 F.3d at 1193.
"Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept it as adequate to support a decision." Holmstrom v. Massanari, 270 F.3d 715, 720 (8th Cir. 2001). The Court must consider evidence that both detracts from, as well as supports, the Commissioner's decision. Id. As long as substantial evidence supports the Commissioner's decision, that decision may not be reversed merely because substantial evidence would also support a different conclusion or because a district court would decide the case differently. McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000); Harris, 45 F.3d at 1193.
DISCUSSION
Holsinger argues that the ALJ erred in: 1) finding that Holsinger could return to her past relevant work; 2) failing to include all impairments in the hypothetical questions; and 3) finding that Holsinger's testimony was not credible. Holsinger also argues that the Commissioner failed to reevaluate the ALJ's findings in light of the evidence presented at the Appeals Council level.
In further references to returning to past relevant work, implicit is the limitation found by the ALJ as to the types of work that Holsinger can perform: machine packager, machine operator, warehouse worker, and envelope machine operator as she previously performed those jobs.
"Disability" Defined
An individual is considered to be disabled if he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to . . . last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A) (2002). The physical or mental impairment must be of such severity that the claimant is "not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). If the claimant argues that he has multiple impairments, the Act requires the Commissioner to "consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity." 42 U.S.C. § 423(d)(2)(B).
Sequential Evaluation
In determining disability, the Act follows a sequential evaluation process. See 20 C.F.R. § 416.920 (2001). In engaging in the five-step process, the ALJ considers whether: 1) the claimant is gainfully employed; 2) the claimant has a severe impairment; 3) the impairment meets the criteria of any SSI listings; 4) the impairment prevents the claimant from performing past relevant work; and 5) the impairment necessarily prevents the claimant from doing any other work. Id. If a claimant cannot meet the criteria at any step in the evaluation, the process ends and the determination is one of no disability. Id.
In this case, the ALJ completed four of the five steps in the evaluation process, concluding: 1) since September 11, 1997, Holsinger has not performed substantial gainful work activity; 2) Holsinger has two medically determinable impairments that are "severe" within the meaning of the SSA's regulations: mild degenerative disc disease; and dysthymia; 3) Holsinger's medically determinable impairments, either singly or collectively, do not meet any section of Appendix 1 to Subpart P of the SSA's Regulations No. 4, known as the "listings"; and 4) despite certain limitations set forth in step three, Holsinger has the ability to perform her past relevant work as a machine packager, a machine operator, a warehouse worker, and an envelope machine operator as she previously performed those jobs.
Credibility of Holsinger's Testimony
Holsinger argues that the ALJ erred in finding that her testimony was not credible.
The ALJ found that Holsinger's testimony was not credible in light of the criteria set forth in 20 C.F.R. § 416.929 (2001) and Social Security Ruling 96-7p. Specifically, the ALJ found that with regard to "objective medical evidence" as defined in 20 C.F.R. § 416.929, the record does not support Holsinger's allegations of: intractable pain; shortness of breath; dizziness; lightheadedness; fainting spells; blurred vision; restriction of movement; numbness of limbs; and frequency of headaches.
The credibility of Holsinger's testimony is crucial because, in determining the fourth factor relating to a claimant's residual functional capacity to perform a range of work activities in spite of her impairments, an ALJ must evaluate the credibility of a claimant's testimony regarding subjective pain complaints. The underlying issue is the severity of the pain. Black v. Apfel, 143 F.3d 383, 386-87 (8th Cir. 1998). The ALJ is allowed to determine the "authenticity of a claimant's subjective pain complaints." Ramirez v. Barnhart, 2002 WL 1181052, at *5 (8th Cir. June 5, 2002) (citing Troupe v. Barnhart, 32 Fed. Appx. 783, 784 (8th Cir. 2002); Clark v. Shalala, 28 F.3d 828, 830-31 (8th Cir. 1994)). An "`ALJ may discount subjective complaints of pain if inconsistencies are apparent in the evidence as a whole.'" Haley v. Massanari, 258 F.3d 742, 748 (8th Cir. 2001) (stating the issue as whether the record as a whole reflected inconsistencies that discredited the plaintiff's complaints of pain) (quoting Gray v. Apfel, 192 F.3d 799, 803 (8th Cir. 1999)).
Also, an ALJ may resolve conflicts among various treating and examining physicians, assigning weight to the opinions as appropriate. Pearsall v. Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001).
The Polaski standard is the guide for credibility determinations:
While the claimant has the burden of proving that the disability results from a medically determinable physical or mental impairment, direct medical evidence of the cause and effect relationship between the impairment and the degree of claimant's subjective complaints need not be produced. The adjudicator may not disregard a claimant's subjective complaints solely because the objective medical evidence does not fully support them.
The absence of an objective medical basis which supports the degree of severity of subjective complaints alleged is just one factor to be considered in evaluating the credibility of the testimony and complaints. The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant's prior work record, and observations by third parties and treating and examining physicians relating to such matters as:
1. the claimant's daily activities; 2. the duration, frequency and intensity of the pain; 3. precipitating and aggravating factors; 4. dosage, effectiveness and side effects of medication; 5. functional restrictions.
The adjudicator is not free to accept or reject the claimant's subjective complaints solely on the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole.Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1986).
Interpreting the Polaski standard, § 416.929 discusses the framework for determining the credibility of subjective complaints, e.g., pain.
An ALJ is required to make an "express credibility determination" when discrediting a social security claimant's subjective complaints. Lowe v. Apfel, 226 F.3d 969, 971-72 (8th Cir. 2000). This duty is fulfilled when an ALJ acknowledges the Polaski factors, and the ALJ has clearly examined the factors before discounting the claimant's testimony. An ALJ is "not required to discuss methodically each Polaski consideration." Id. at 972.
The federal regulations provide that the ALJ must consider all symptoms, "including pain, and the extent to which symptoms can reasonably be accepted as consistent with the objective medical evidence," defined as "medical signs and laboratory findings." § 416.929. Medical "signs" are defined as:
anatomical, physiological, or psychological abnormalities which can be observed, apart from your statements (symptoms). Signs must be shown by medically acceptable clinical diagnostic techniques. Psychiatric signs are medically demonstrable phenomena that indicate specific psychological abnormalities, e.g., abnormalities of behavior, mood, thought, memory, orientation, development, or perception. They must also be shown by observable facts that can be medically described and evaluated.20 C.F.R. § 416.928(b) (2001).
"Laboratory findings" are defined as: "anatomical, physiological, or psychological phenomena which can be shown by the use of a medically acceptable laboratory diagnostic techniques. Some of these diagnostic techniques include chemical tests, electrophysiological studies (electrocardiogram, electroencephalogram, etc.), roentgenological studies (X-rays), and psychological tests." 20 C.F.R. § 416.928(c) (2001).
Social Security Ruling 96-7p provides that a "strong indication" of the credibility of a claimant's statements is the consistency of the claimant's various statements and the consistency between the statements and the other evidence in the record. Ruling 96-7p provides that the ALJ must consider such factors as:
• The degree to which the individual's statements are consistent with the medical signs and laboratory findings and other information provided by medical sources, including information about medical history and treatment.
• The consistency of the individual's own statements. The adjudicator must compare statements made by the individual in connection with his or her claim for disability benefits with statements he or she made under other circumstances, when such information is in the case record. Especially important are statements made to treating or examining medical sources and to the "other sources" defined in 20 C.F.R. § 404.1513(e) and 416.913(e). However, the lack of consistency between an individual's statements and other statements that he or she has made at other times does not necessarily mean that the individual's statements are not credible. Symptoms may vary in their intensity, persistence, and functional effects, or may worsen or improve with time, and this may explain why the individual does not always allege the same intensity, persistence, or functional effects of his or her symptoms. Therefore, the adjudicator will need to review the case record to determine whether there are any explanations for any variations in the individual's statements about symptoms and their effects.
• The consistency of the individual's statements with other information in the case record, including reports and observations by other persons concerning the individual's daily activities, behavior, and efforts to work. This includes any observations recorded by SSA employees in interviews and observations recorded by the adjudicator in administrative proceedings.
SSR 96-7p, 1996 WL 374186 (S.S.A.) at *5 (July 2, 1996).
Social Security Ruling 96-7p is entitled: "Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements.
Deference is generally granted to an ALJ's determination regarding the credibility of a claimant's testimony and, in particular, subjective complaints of pain. Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001) (stating that if an ALJ provides a "good reason" for discrediting claimant's credibility, deference is given to the ALJ's opinion, although every factor may not have been discussed).
In Holsinger's case, the record illustrates that the ALJ performed a thorough Polaski analysis in determining the credibility of Holsinger's subjective pain complaints. In making the credibility determination, the ALJ considered that Holsinger has not performed substantial gainful activity since September 11, 1997, and has not received workers' compensation or unemployment benefits since that time. The ALJ summarized in detail Holsinger's complaints, including her depression, back pain, heart palpitations, trouble grasping with her hands, bowel problems, anxiety attacks, mood swings, blurred vision, and difficulty walking. (Tr. 32-33.)
The ALJ considered Holsinger's daily activities, which include: morning coffee; devotionals for twenty to thirty minutes; art work; reading; walking around her apartment complex; riding a bus once a week; dishwashing; laundry; dusting; and taking out the garbage. (Tr. 32.) See Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1996) (affirming the ALJ's discount of claimant's subjective complaints of pain, where the plaintiff cared for one of his children on a daily basis, drove a car infrequently, and occasionally went grocery shopping).
The ALJ also considered the medical opinion of Dr. Wasiak, who found Holsinger's complaints to be "exaggerated." The ALJ noted a progress report attributing her visual changes to the normal aging process, and dismissing Holsinger's need for exercise and smoking cessation. The ALJ considered Holsinger's normal cardiac test results. (Tr. 33-34.) The ALJ noted "significant" contradictions in Holsinger's own testimony, i.e., her characterization of treatment rendered for manic depressive disorder, later clarified by records as major depressive disorder. (Tr. 34.) The ALJ noted four personal observations of medical personnel that discredit Holsinger's complaints of back pain and related maladies: 1) a report from the Douglas County Hospital on February 23, 1998, stating that Holsinger moved without difficulty when complaining of back pain; 2) a physical therapy report stating that on May 5, 1998, Holsinger showed few signs of pain; 3) an August 17, 1998, psychiatric evaluation indicating that Holsinger did not exhibit problems such as attention or concentration; and 4) physical therapy reports from June and July 1999 stating repeatedly that Holsinger showed no signs of dysfunction or pain. (Tr. 35.)
The ALJ also discussed evidence showing that Holsinger has not complied with her treatment program without good cause. (Tr. 35-36.) For example, on February 10, 1999, physical therapy was recommended, but as of May 6, 1999, Holsinger still had not attended therapy. (Tr. 36.)
The ALJ also considered that Holsinger's work history, unimpressive because Holsinger: did not work for seven of the fifteen years prior to her onset date; held jobs for short periods of time; and never earned more than $2,796.29 in one year. Yet, the record reflected that Holsinger told her therapist that she was upset over her disability application, and while crying told the therapist that she had "worked long years and paid into [the] system." (Tr. 36.) It should be noted that a lack of work history has been found to indicate poor motivation. Pearsall, 274 F.3d at 1218.
The ALJ also considered Holsinger's misrepresentation of her treatment and exaggeration of her medical conditions. For example, in December 1998 Holsinger told Dr. Schooff that she had never been prescribed medication or therapy for her back pain. However, she had both been prescribed medication and treated with physical therapy in 1997, and again prescribed therapy in February 1998. Also, Holsinger told Dr. Schooff that she had an "arrhythmia" found as a result of an EKG done over a year ago, when in fact she had an EKG less than a year before that showed normal results. (Tr. 37.)
Also, the ALJ noted that Holsinger made untrue statements regarding her education, i.e., the grade level completed, obtaining a GED, and completion of college-level work. (Tr. 37.)
The ALJ also considered Holsinger's right ulnar nerve transposition performed in March 1989. However, the ALJ did not consider this impairment to be "severe" or having more than a minimal effect on Holsinger's ability to work. The ALJ reasoned that Holsinger worked after March 1989 with the condition, and no physician had reported reduced grip strength or range of motion. (Tr. 38.)
In summary, the ALJ thoroughly considered Holsinger's subjective pain complaints, the reports of her treating physicians, therapists, reports of agency physicians, and Holsinger's own statements. The ALJ correctly engaged in the Polaski analysis. The ALJ set out the standards stated in § 404.1529, and she acknowledged the Polaski standard as well as applicable regulations and SSR 96-7p. (Tr. 30-31.) The ALJ's conclusion that Holsinger `s pain was not severe enough to prevent her from engaging in her past relevant work as performed was well-founded, and followed an appropriate express credibility determination regarding Price's assertion of subjective complaints. (Tr. 39.) The ALJ's credibility decision was well-supported and based on a thorough analysis of treating and consultative medical reports.
Therefore, the ALJ appropriately determined that Holsinger's testimony was not credible.
Past Relevant Work
The ALJ bears the primary responsibility for assessing Holsinger's residual functional capacity based the relevant evidence. However, Holsinger's residual functional capacity is a medical question. Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir. 2001). The ALJ must resolve any conflict in the medical evidence. Id. However, some medical evidence "`must support the determination of the claimant's [residual functional capacity], and the ALJ should obtain medical evidence that addresses the claimant's ability to function in the workplace.'" Id. At 712 (quoting Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001)). "To properly determine a claimant's residual functional capacity, an ALJ is therefore `required to consider at least some supporting evidence from a [medical] professional.'" Id. (quoting Lauer, 245 F.3d at 704).
In Holsinger's case, the ALJ followed the procedures in determining that she retained the residual functional capacity to return to some of her past relevant work as she performed that work. The ALJ considered, among other things, records from both treating and agency physicians and psychologists. Conflicts existed among those opinions, and therefore the ALJ examined factors such as Holsinger's delay in beginning and absences in physical therapy, and her resistance to quitting smoking and beginning an exercise program. Taking all of this evidence as well as additional relevant evidence into consideration, the Court finds that the ALJ properly determined the fourth step of the inquiry.
Therefore, this Court agrees that the ALJ properly determined that Holsinger could return to her past relevant work as a machine packager, a machine operator, a warehouse worker, and an envelope machine operator as she previously performed those jobs.
Vocational Expert; Hypothetical Questions
Holsinger argues that the ALJ failed to include all of her impairments in the seven hypothetical questions posed to Gayle Tichauer, the VE. Specifically, Holsinger complains that the following were not included: 1) the results of the Wechsler Adult Intelligence Test, which revealed difficulties in the areas of attention, concentration, sustained attention, and nonverbal abstracting, but adequate vocabulary, problem solving skills and concept formation; and 2) the MMPI results, which were "questionable."
Initially, the Court notes that a claimant bears the burden of proving that she cannot return to her past relevant work. Fenton v. Apfel, 149 F.3d 907, 910 (8th Cir. 1998). Once the determination is made that a claimant can perform past relevant work and therefore is not disabled, the burden does not shift to the Commissioner to show a lack of disability. Therefore, a VE's services are unnecessary. Id.; Gaddis v. Chater, 76 F.3d 893, 896 (8th Cir. 1996). Therefore, reliance on the VE's testimony was not even required in Holsinger's case.
Nevertheless, a VE's hypothetical questions are proper if they sufficiently set out all of the impairments accepted by the ALJ as true, and if the questions likewise exclude impairments that the ALJ has reasonably discredited. Pearsall, 274 F.3d at 1220. In Holsinger's case, the VE specifically stated that Holsinger performed her past occupations at skill levels considerably lighter than as described in the Dictionary of Occupational Titles. (Tr. 141.) The Court notes that Holsinger's attorney at the time of the hearing, Mary Gryva, had no comments when specifically asked whether she questioned the VE's summary of Holsinger's past occupations and the skill levels at which she performed those jobs. Moreover, Holsinger's attorney did not question the VE at all during the hearing before the ALJ. (Tr. 146.)
The Wechsler Adult Intelligence Test and the MMPI were included in a psychological evaluation performed by Dr. Fabry. The Wechsler results revealed difficulties in the areas of attention, concentration, sustained attention, and nonverbal abstracting. In contrast, the results revealed adequate vocabulary, problem solving skills and concept formation. The MMPI results were "questionable." Dr. Fabry's diagnosis included post-traumatic stress disorder and dysthymia history.
The evidence shows that the ALJ attributed greater weight to certain medical, psychological and other evidence in the record, and the hypothetical questions reflect the ALJ's consideration of the evidence. Therefore, the hypothetical questions were properly based on the evidence credited by the ALJ. See Pearsall, 274 F.3d at 1220 (stating that the ALJ included in hypothetical questions posed to a VE limitations found by a physician whose opinion was afforded greater weight than other medical opinions).
Substantial Evidence
The Court must affirm the ALJ's opinion if her findings are supported by substantial evidence in the record as a whole. Ramirez, 2002 WL 1181052, at *5 (citing Flynn v. Chater, 107 F.3d 617, 620 (8th Cir. 1997)). "`Substantial evidence is less than a preponderance, but enough so that a reasonable mind might accept it as adequate to support a conclusion.'" Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001)). Evidence both supporting and detracting from the ALJ's decision is considered. Holmstrom, 270 F.3d at 720.
The Court already determined that the ALJ properly performed the Polaski analysis in evaluating Holsinger's subjective pain complaints and the extent to which Holsinger stated that her pain interfered with her daily activities. Furthermore, the ALJ reasoned that, while Holsinger was impaired, she nonetheless retained the residual functional capacity to perform her past relevant work, as previously performed, despite her impairments. The objective medical evidence, together with the ALJ's credibility determination of Holsinger's subjective pain complaints, constitutes substantial evidence in the record to support the ALJ's denial of SSI benefits. See Ramirez, 2002 WL 1181052, at *5. Additional Evidence Presented to the Appeals Council
Holsinger argues that remand is appropriate for consideration of the evidence submitted to the Appeals Council. This argument is misplaced.
In denying Holsinger's request for review of the ALJ's decision, the Appeals Council specifically stated that it considered the additional evidence submitted at the Appeals Council level. (Tr. 6-9.) Once the Appeals Council explains why review is denied despite consideration of new evidence at the appellate level, remand for consideration of the new evidence is inappropriate. Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994).
CONCLUSION
For the reasons discussed, the Court concludes that the Commissioner's decision is supported by substantial evidence on the record as a whole and is affirmed.
IT IS ORDERED that the decision of the Commissioner is affirmed, the appeal is denied, and judgment in favor of the Defendant will be entered in a separate document.
JUDGMENT
Pursuant to the related memorandum and order,
IT IS ORDERED:
1. Judgment is entered for the Defendant and against the Plaintiff;
2. The decision of the Commissioner is affirmed; and
3. The appeal is denied.