Opinion
No. C99-1011.
Filed February 16, 2000.
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to briefs on the merits of this application for Supplemental Security Income (SSI) benefits. The matter was referred to the undersigned United States Magistrate Judge for the issuance of a report and recommendation. It is recommended that the court find in favor of the defendant and this action be dismissed.
Procedural Background
Plaintiff Joseph David Margan applied for Title II and Title XVI Social Security disability benefits on April 25, 1996, alleging an inability to work since August 25, 1995. His application was initially denied; and was denied again on reconsideration. On November 4, 1997, following two hearings (May 1, 1997 via video; and a supplemental hearing on October 7, 1997), Administrative Law Judge J. Michael Johnson found the plaintiff was not disabled as defined by the Social Security Act, 20 C.F.R. § 404.1520(e) and denied benefits. On February 19, 1999, the Appeals Council of the Social Security Administration denied the plaintiff's request for review. The plaintiff filed this petition for judicial review on March 23, 1999.
Factual Background
Plaintiff Joseph David Margan is a 52-year-old married man with a history of back problems and obesity. He has an eleventh-grade education, earned his general equivalency diploma (GED) (Tr. 54), and has worked as a cook in restaurants (Tr. 128) and supper clubs (Tr. 124), as a retail store stock clerk (Tr. 57), as a roofer (Tr. 132), and doing highway construction (Tr. 124). Since June 29, 1996, the plaintiff drove a taxi (20 to 24 hours/week) for A-OK Yellow Cab in Dubuque, Iowa, and earned about $100 per week (Tr. 56, 86). He was still working as a part-time cab driver in May 1997 at the time of his disability hearing (Tr. 55).
On a normal day, the plaintiff says he gets out of bed about 8 or 8:30 a.m. (Tr. 77). Sometimes, his wife must help him dry his legs and back when he gets out of the shower (Tr. 70) and help him put on underwear and socks (Tr. 69). The plaintiff and his wife eat breakfast, run errands (Tr. 77); he may go outside and take a load of laundry off the clothesline (Tr. 69). The plaintiff likes to watch sports on television (Tr. 78-79). In the afternoon, he might go for a walk (Tr. 77). The plaintiff says he can walk for 1.5 to 2 miles, if he pushes himself (Tr. 77). After exercise, the plaintiff says he must rest in the fetal position or his back goes into spasms (Tr. 77). The plaintiff says he cannot go more than 10 days to two weeks without a flare-up of his back pain (Tr. 66). Unless the pain is acute, plaintiff says he does daily stretching exercises (Tr. 135).
The plaintiff claims he has had back problems since he fell on the ice at age 14 (Tr. 205). Medical records from John C. Godersky, M.D., associate professor of neurosurgery at the University of Iowa Hospitals and Clinics, indicate the plaintiff had back surgery for herniated disks in the L5-S1 lumbar region in 1980 (surgery performed by Julian G. Nemmers, M.D., an orthopedist in Dubuque) and again in 1982 (surgery performed by Eugene Herzberger, M.D., a Dubuque neurosurgeon) (Tr. 212). Some medical reports indicate the surgeries were performed in 1976 and 1978 ( Tr. 205), or 1976 and 1977 (Tr. 199). When he fell on his back at work in 1984, a myloegram and a CT scan showed a bulging disk at L5-S1 and mild spinal stenosis at L4-5 (Tr. 212). In March 1988, the plaintiff was working as a cook when he slipped on a wet floor at work, again injuring his back (Tr. 212). No surgery was performed for the 1984 and 1988 injuries; the plaintiff was placed on physical therapy and received a TENS unit (Tr. 215). In January 1994, Matthew Drewry, M.D., noted the plaintiff was taking ibuprofen and Valium for low back pain (Tr. 213); and William Galbraith, M.D., who diagnosed the plaintiff with low back pain in April 1994, suggested the continued use of ibuprofen and Valium (Tr. 179).
In March 1995, the plaintiff was shoveling snow from his driveway (Tr. 60), and he developed acute pain in his lower back with pain radiating into his right leg (Tr. 215). Christopher Loftus, M.D., a University of Iowa neurosurgeon, saw the plaintiff on March 13, 1995, and ordered an MRI which showed a diffuse disc bulge at L3-4, L4-5 and some central sights at L5-S1 in the plaintiff's back; also, there was enlarged nerve root (Tr. 215). He prescribed Percodan tablets (Tr. 182). On March 16, 1995, the plaintiff was examined by William John Dall, M.D., an internal medicine specialist in Dubuque, who said his condition was an aggravation of a pre-existing disc problem, rather than a new ruptured disc (Tr. 194). The plaintiff was examined at a pain clinic on April 5, 1995, by Deborah Graves McFarlane, Ph.D., who said the plaintiff was having moderate-to-significant success at controlling and reducing his pain (Tr. 218). Dr. McFarlane noted the plaintiff's "general activity level was higher than the average pain patient" (Tr. 218). On May 14, 1995, the plaintiff was released to return to work by Dr. Dall (Tr. 193).
The plaintiff, who stands six feet tall, has a history of weight problems. In April 1995, the plaintiff weighed 295 pounds, 111 pounds more than his ideal body weight of 184 pounds (Tr. 19). In August 1996, the plaintiff weighed 300 pounds, 36 pounds short of the obesity listings (Tr. 156), and in January 1997, the plaintiff weighed 315 pounds Tr. 22). By May 1997, the plaintiff had lost ten pounds and weighed 305 (Tr. 55). He admitted he had weighed "over 350 pounds at one time" (Tr. 55). The plaintiff has a history of hepatitis and alcohol and drug use (Tr. 216). Now, the plaintiff drinks a beer or two only occasionally (Tr. 77), but he has never been in drug detox or alcohol rehab (Tr. 78), and he has not taken any street drugs for 15 years (Tr. 78). Also, the plaintiff smoked a half-pack of cigarettes for 25 years, but quit in 1994 (Tr. 179, 216).
There have been several conflicting medical reports regarding the plaintiff's condition. For example, three doctors who examined the plaintiff in 1995 and 1996 determined his back problems would not restrict his activity, and flare-ups should be treated when they occur:
Timothy J. Maves, M.D., assistant professor in the Department of Anesthesia at the University of Iowa Hospitals and Clinics, assessed the plaintiff's musculoskeletal back pain three times between June 1995 and September 1995, and prescribed medication for pain (Tr. 185-89). The plaintiff told the doctor that walking helped the pain (Tr. 189). On June 27, 1995, the plaintiff described a back spasm after reaching over and picking up a can of soup in the cupboard (Tr. 185). Dr. Maves suggested physical therapy and steroid injections to the spine if the pain worsened (Tr. 186). On July 24, 1995, the doctor described the plaintiff's gait as normal, his lower extremity motor exam as "completely normal," and said the plaintiff was able to stand on his toes and heels without difficulty (Tr. 187). "We feel that acute exacerbations of his pain are most appropriately treated (Tr. 188). By September 18, 1995, the doctor said the plaintiff was in no apparent distress (Tr. 189). Dr. Maves' colleague in the Department of Anesthesia at the University of Iowa, assistant professor Timothy J. Brennan, M.D., Ph.D., noted in May 1995, that the plaintiff still experiences some pain symptoms, he "seems to be much relieved of his pain as compared to one month ago" (Tr. 220).
Peggy A. Mulderig, M.D., examined the plaintiff in July 24, 1996, noting that he exhibited "a good deal of facial grimacing and sighing" (Tr. 200-201). She diagnosed lower back pain and a limited range of motion at the spine. She said the plaintiff walked with a normal gait, was able to rise out of a chair and get off the examining table, and walk on his heels and toes (Tr. 201). The doctor said the plaintiff could lift and carry 40 to 50 pounds frequently and that there was no objective evidence that the plaintiff's ability to stand, walk or sit during an eight-hour shift should be limited. Also, the doctor said there was no reason to limit the plaintiff's work environment or his ability to climb or kneel. She said the plaintiff's ability to stoop or crawl may be limited by his lack of range of motion. She noted that the patient said his back pain is worse when he walks, but "previous notes indicate that walking seemed to improve his symptoms" (Tr. 201). (For example, Dr. Maves said Sept. 18, 1995, that "the pain is minimal when the patient is walking around . . ." (Tr. 189), and Barbara Westfall's April 1995 physical therapy report says walking relieves plaintiff's pain (Tr. 183)).
James Hepplewhite, M.D., wrote a Residual Functional Capacity Assessment in August 1996 saying there was no reason to believe that the plaintiff would have a limitation on the amount of weight he could carry; that there is no objective evidence that his ability to stand and walk during an 8-hour shift should be limited; that his ability to sit, climb or kneel was not limited; and that his ability to stoop and crawl would be limited by his lack of ROM at his trunk (Tr. 156). "Patient states his low back pain is worse when walking while previous notes indicate that walking improves his symptoms," the doctor wrote (Tr. 156).
Two doctors, however, determined in 1997 that the plaintiff's back problems were severe, and said working would require restrictions in his ability to lift, carry or sit:
Dr. William John Dall, of Dubuque, the plaintiff's primary physician since 1975, said on January 7, 1997, that the plaintiff was a "very honest man who surely has been trying to work" (Tr. 205). During his exam, Dr. Dall noted that the plaintiff was helped on and off the examining table and that he had trouble getting around (Tr. 205). The doctor said the plaintiff had no reflexes in his right lower leg, and diminished reflexes on his left leg (Tr. 205). Dr. Dall described the plaintiff as permanently disabled (Tr. 206), "in constant pain" (Tr. 210), and unable to do any "regular type of work" (Tr. 206).
Dr. Dall noted that the plaintiff could not work for more than a day at his most recent job at a pizza parlor because "he had difficulty lifting a 2-liter bottle of soda" (Tr. 205-206). (The manager of Papa Sarducci's in Dubuque said the plaintiff was unable to bend and lift 30 lbs. of canned tomatoes, 50 lbs. of flour, or 5 gallons of spaghetti sauce because of back pain (Tr. 162)). Dr. Dall said on a Residual Function Capacity Questionnaire dated January 28, 1997, that the plaintiff's prognosis was poor, that he could lift only 10 pounds occasionally, could sit and stand for only 20 minutes at a time for a total of less than 2 hours in an eight-hour shift, and must walk every 30 minutes for three minutes (Tr. 208-209).
Thomas R. Nicknish, M.D., of Iowa City, examined the plaintiff on July 28, 1997, after the plaintiff's initial hearing with the ALJ. Because the plaintiff could not perform most of the studies (Tr. 223), the doctor had difficulty trying to decipher the actual deficit of the plaintiff. In his August 8, 1997, report, Dr. Nicknish said the plaintiff could lift a gallon of milk occasionally and not carry it very far because the plaintiff complained of back pain (Tr. 226), that the plaintiff could probably sit less than one hour in an eight-hour day, could climb but not balance, and could not crawl, stoop, or kneel (Tr. 227).
At the hearing before the Administrative Law Judge, vocational expert Carma Mitchell testified that, hypothetically, a man the plaintiff's age with degenerative disc disease, an inability to lift more than 20 pounds, who was not required to use foot controls and was required to stoop, crawl, bend, kneel or climb only occasionally, would be able to perform past relevant work as a cook or as a customer service representative, as long as there were no shelf-stocking duties involved (Tr. 88). Also, Mitchell testified that transferable job skills included short-order cook, salad maker, store sales clerk, or food assembler, like working at a deli counter (Tr. 89). Mitchell said there were 1,317 jobs in Iowa for a short-order cook; 500 jobs in Iowa for a salad or pantry good maker; and 2,000 jobs in Iowa for a counter attendant or food assembler (Tr. 89-90).
SCOPE OF REVIEW Substantial Evidence
The scope of a district court's review of the Commissioner's final decision is set forth in 42 U.S.C. § 405(g) which provides, in part, that:
[t]he court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . .42 U.S.C. § 405(g).
In order for the court to affirm the ALJ's findings of fact, those findings must be supported by substantial evidence appearing on the record as a whole. See Lochner v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992); Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989). Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Cruse, 867 F.2d at 1184; Taylor v. Bowen, 805 F.2d 329, 331 (8th Cir. 1986). The court must take into account evidence which fairly detracts from the ALJ's findings. Cruse, 867 F.2d at 1184; Hall v. Bowen, 830 F.2d 906, 911 (8th Cir. 1987). Substantial evidence requires "something less than the weight of evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence."Cruse, 867 F.2d at 1184 (quoting Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966)). The court must consider the weight of the evidence appearing in the record and apply a balancing test to contradictory evidence. Gunnels v. Bowen, 867 F.2d 1121, 1124 (8th Cir. 1989); Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987).
CONCLUSIONS OF LAW Determination of Disability
Determining whether or not a claimant is disabled is evaluated by a five-step process. 20 C.F.R. § 404.1520(a-f). First, if a claimant is working and the work constitutes substantial gainful activity, they will not be found disabled regardless of their medical condition, age, education, or work experience. Id. Second, a claimant must have an impairment or combination of impairments which significantly limits their physical or mental ability to do basic work activities. Id. Third, if the impairment(s) meets the duration requirement or is listed in Appendix 1, or equals a listed impairment(s), the claimant will be found disabled regardless of age, education, and work experience. See 20 C.F.R. Pt. 404, App. 1, Subpt. P. Fourth, the impairment must prevent the claimant from doing their past relevant work. Fifth, the impairment must prevent the claimant from doing any other work. 20 C.F.R. § 404.1520. "To establish a disability claim, the claimant bears the initial burden of proof to show that he is unable to perform his past relevant work." Frankl v. Shalala, 47 F.3d 935, 937 (8th Cir. 1995) (citing Reed v. Sullivan, 988 F.2d 812, 815 (8th Cir. 1993)). If the claimant meets this burden, the burden of proof then shifts to the Commissioner to demonstrate that the claimant retains the physical residual functional capacity to perform a significant number of other jobs in the national economy that are consistent with the claimant's impairments and vocational factors such as age, education, and work experience. Id.
It is undisputed that Margan suffers from chronic musculoskeletal back pain, disc problems and obesity. However, the ALJ found that Margan did not have an impairment or combination of impairments which would qualify him for SSI benefits as a "disabled" person. Also, the ALJ found that Margan was able to perform his past relevant work as a cook or customer service representative and can transfer those skills to other types of work in the food service or customer service industries.
Subjective Pain
Plaintiff asserts that the ALJ improperly discounted his subjective complaints of severe disabling pain. When evaluating an applicant's claim of pain or other subjective impairment, the adjudicator may not disregard a claimant's subjective complaints solely because the objective medical evidence does not fully support them. 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 applicant's daily activities; (2) the duration, frequency and intensity of pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects of medication; and (5) functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir. 1984); Baker v. Secretary of Department Health and Human Services, 955 F.2d 552, 555 (8th Cir. 1992).
The ALJ "is not free to accept or reject the claimant's subjective complaints solely on the basis of personal observations." Polaski, 739 F.2d at 1322 (emphasis in original). Subjective complaints may be discounted if inconsistencies exist in the evidence as a whole.Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir. 1994); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). When deciding whether subjective complaints are credible, the ALJ must discuss the five factors, as well as any inconsistent medical evidence, and show that all the evidence was evaluated. Herbert, 783 F.2d at 130. The ALJ must say more than that the testimony on pain is not credible, the ALJ's credibility findings must be explicit. Rainey v. Bowen, 814 F.2d 1279, 1281 (8th Cir. 1987).
In this case, while the plaintiff complained of constant pain, he evaluated it to pain clinic psychologist Debra McFarlane as only a "2" on a scale of 1 through 10, with 10 being the worst pain; he described pain at "3 or 4" as tolerable. The plaintiff reported moderate success in being able to control his pain and significant success in being able to reduce his pain. In fact, in May 1995, the plaintiff told his physician, Dr. Dall, that he was getting along well and requested a return-to-work release.
The ALJ determined the plaintiff was not credible because of the inconsistencies in the record. Among the inconsistencies were the defendant's statements about whether walking eased his back pain. The plaintiff, who admitted he was able to walk up to two miles, told some physicians that walking helped ease the pain, while other doctors were told that walking increased the pain. Also, some doctors were told that sitting was painful for the plaintiff, yet the plaintiff continued to drive a taxi at least two 10-hour shifts each week. While the plaintiff may be living with varying amounts of pain, his pain does respond to treatment. One doctor noted improvement in the plaintiff's pain between two appointments only one month apart.
In the face of the plaintiff's complaints of pain, this plaintiff was identified by one doctor as one of the most active patients with complaints of back pain. Along with his part-time job as a cab driver, the plaintiff was able to collect laundry off the clothesline, and to run errands (such as grocery shopping and carrying a few bags inside the house, "but nothing heavy") with his wife. This is a condition the plaintiff had been living with for years, and there was nothing in the record to indicate that the plaintiff's back pain had recently deteriorated. In fact, the record indicated that the plaintiff's bouts with acute back pain were set off by specific activities, such as shoveling snow. Common sense would dictate that the plaintiff should avoid shoveling snow. However, the fact that the plaintiff should avoid shoveling snow has no bearing on whether the plaintiff can successfully be employed at his past relevant work. The ALJ correctly determined that the plaintiff's subjective complaints of disabling pain were not credible, and that there was substantial evidence in the record to conclude that the plaintiff retains the residual functional capacity to perform successfully his past relevant work despite his degenerative disc disease.
Treating Physician
The Eighth Circuit Court of Appeals recognizes that a treating physician's opinion on disability is entitled to substantial weight. Onstead v. Sullivan, 962 F.2d 803, 805 (8th Cir. 1992). "However, a treating physicians's opinion is `not conclusive in determining disability status and must be supported by medically acceptable clinical or diagnostic data.'" Chamberlain, v. Shalala, 47 F.3d 1489, 1494 (8th Cir. 1995) (quoting Matthews v. Bowen, 879 F.2d 422, 424 (8th Cir. 1989)). Thus, "[w]hile the opinions of treating physicians are entitled to special weight, they do not automatically control, since the record must be evaluated as a whole." Bentley v. Shalala, 52 F.3d 784, 785, 786 (8th Cir. 1995).
In this case, the ALJ determined that Dr. William Dall, a specialist in internal medicine, not orthopedics who provided medical care for the plaintiff on and off since 1975, did not provide a medical basis for his opinions about the plaintiff's pain and inability to work. The ALJ said the doctor's medical assessment was based on the claimant's statements, not on objective medical evidence. The ALJ determined that the plaintiff's work activities as a taxi driver were inconsistent with the doctor's opinion that the plaintiff was totally disabled. Finally, the ALJ determined that because the plaintiff did not see Dr. Dall from March 1995 until January 1997, Dr. Dall's opinion did not carry the weight of a treating physician. The ALJ had similar problems with the assessment of Dr. Nicknish, also an internal medicine specialist: the doctor's assessment was based on the plaintiff's self-report and was not supported by objective medical evidence.
In looking at the plaintiff's record as a whole, there was a variety of opinion from doctors regarding the plaintiff's abilities. It is clear, however, that the doctors who relied on the plaintiff's self-evaluation, not objective medical evidence, were the doctors who concluded that the plaintiff had a disability that restricted his capacity to work. There is substantial evidence in the record to show that the ALJ correctly relied on medical opinions which concluded that the plaintiff was able to perform his past relevant work.
Conclusion
In this case, the ALJ correctly determined that the plaintiff was not disabled. The ALJ correctly determined that the plaintiff's subjective complaints of pain were inconsistent with his ability to function, including his ability to work as a taxi driver. The ALJ correctly determined that the plaintiff did not see Dr. Dall frequently enough for the physician's opinion to carry the weight of a primary care physician. Also, the ALJ correctly determined that the plaintiff was able to perform his past relevant work in the food service or customer service industries. It is recommended that the court find in favor of the defendant.
Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, this action be dismissed.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P . 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).