McPherson v. Apfel

Full title: ARLAN E. McPHERSON, Plaintiff, v. KENNETH S. APFEL, Commissioner of Social…

Court: United States District Court, N.D. Iowa, Central Division

Date published: Aug 10, 2000

No. C99-3049-MWB (N.D. Iowa Aug. 10, 2000)

Opinion

No. C99-3049-MWB

August 10, 2000

REPORT AND RECOMMENDATION

PAUL A. ZOSS, Magistrate Judge.

I. INTRODUCTION

The plaintiff, Arlan E. McPherson ("McPherson"), appeals the denial by the administrative law judge ("ALJ") of Title XVI supplemental security income ("SSI") and Title II disability insurance ("SSD") benefits. McPherson argues (1) the ALJ erred by not properly evaluating his subjective pain complaints and credibility, and (2) the ALJ's decision that McPherson is able to perform substantial gainful activity despite his numerous impairments is not supported by substantial evidence. Thus, McPherson argues he is entitled to an award of SSI and SSD benefits.

II. PROCEDURAL AND FACTUAL BACKGROUND A. Procedural Background

McPherson filed an application for both SSI and SSD benefits on July 24, 1995. (R. at 132-40)¹ The application was denied initially (R. at 124-31), and upon reconsideration. (R. at 103-12) McPherson then requested a hearing, which was held before ALJ Andrew T. Palestini on October 4, 1996. (R. at 48-83) Attorney Ronald J. Wagenaar represented McPherson at the hearing. McPherson and Vocational Expert ("VE") Leona E. Martin testified at the hearing.

1 McPherson previously filed an application for SSD benefits in 1991. (R. at 97-100). That application was denied initially (R. at 84-87), and was not appealed.

On April 1, 1997, the ALJ ruled McPherson was not entitled to SSI or SSD benefits. (R. at 15-40) The Appeals Council of the Social Security Administration denied McPherson's request for review on April 16, 1999 (R. at 4-5), making the ALJ's decision the final decision of the Commissioner. In rendering its decision, the Appeals Council considered additional medical records submitted by McPherson, and included those exhibits as part of the official record. ( See R. at 6, 8, 384-420)

McPherson filed a timely complaint on June 14, 1999, seeking judicial review of the ALJ's ruling. (Doc. No. 1) On September 20, 1999, pursuant to Administrative Order #1447, Chief Judge Mark W. Bennett referred this matter pursuant to 28 U.S.C. § 636(b)(1)(B) to the undersigned United States Magistrate Judge for the filing of a report and recommendation. McPherson filed a brief supporting his claim on November 4, 1999. (Doc. No. 8) On January 3, 2000, the Commissioner of Social Security filed his brief. (Doc. No. 9) The court now deems the matter fully submitted, and turns to a review of McPherson's application for benefits pursuant to 42 U.S.C. § 405(g).

B. Factual Background 1. Introductory facts and McPherson's daily activities

McPherson is seeking SSI and SSD benefits for a disability beginning on November 25, 1989, caused by chronic pain in his back, shoulders and neck, radiating into his legs; numbness and grip problems in his fingers; headaches; poor concentration; and depression. At the time of the hearing in October 1996, McPherson was forty-four years old. He was 5'9-1/2"tall and weighed 200 pounds, which McPherson testified had been his normal weight for the preceding six years. (R. at 51) McPherson graduated from high school, and completed a vo-tech program in mechanical drafting at Iowa Central Community College. He also took welding classes at Kirkwood Community College. (R. at 52) McPherson was married and had three children, to-wit: a 13-year-old son and two daughters, ages 9 and 8. (R. at 419)

McPherson testified that for approximately five months preceding the hearing, he had experienced problems with his concentration due to his inability to work and support his family in a manner acceptable to him. He said he was forgetful at times and had to be reminded of what he was supposed to be doing. (R. at 53-54)

McPherson summarized his physical complaints as, "Pain in my lower back radiating down to my left. Numbness in my ring finger and pinky finger on my right hand. Headaches quite often. Generally kind of run down feeling." (R. at 54). He testified the pain in his low back was "there constantly and it's enough that it bothers me." ( Id.) He said the only way he could get any relief was to take medication. At that time, he was taking Hydrocodone² at the rate of two tablets, three times a day. McPherson said sitting, walking, and standing for any length of time aggravated the condition and made his leg numb, and his back pain worsened if he tried to "walk very far or sit for very long." ( Id.) McPherson characterized the pain as a "constant sharp type pain." (R. at 55) He said he had experienced this lower back and leg condition for about a year-and-a-half prior to the hearing. ( Id.) As an example of how this condition was affecting his daily life, McPherson testified he recently was bent over the hood of his car to change the fan belt when his "left leg just went numb," and he had to have his wife help him get up. ( Id.) McPherson said a spine specialist "noticed on an MRI scan that there was degeneration in two of the disks in [his] lower back," but no definitive diagnosis had been rendered yet. ( Id.)

2 "[A] semisynthetic product of codeine . . . having narcotic analgesic effects similar to but more active than those of codeine[.]" Dorland's Pocket Medical Dictionary, 332 (23rd ed. 1982).

McPherson testified he had a long history of back problems, including spina bifida and, in April 1994, back surgery to repair a fractured disk. (R. at 56) He testified that he could stand for a maximum of 20 minutes at a time, although by that time he would have "the tinglies" in his leg — a feeling "like your foot going to sleep," that worsened the longer he remained standing. ( Id.) He said he could sit for about half an hour before his leg went numb and began to hurt "very bad." (R. at 56-57) When that happened, he testified, "I would turn to the side and try to go down to my knees and roll over on my back and try to elevate my legs and use what they call a lumbar pillow underneath my lower back and that seems to help some. Getting up from there is not very easy." (R. at 57)

McPherson testified he could walk approximately one city block before his leg began to get numb and his back pain started to increase. He started using a cane about four months prior to the hearing because he had begun falling down. He used the cane whenever he went "on a long road trip or something," but not around the house. (R. at 57-58)

McPherson explained he could kneel down but had to have someone help lift him to get back up. (R. at 58). A pulling motion would pull the muscles in his lower back, all the way down his back. He had no trouble driving an automatic car, but would have trouble operating the clutch in a car with a manual transmission. ( Id.)

McPherson said his chiropractor had limited McPherson's lifting to 50 pounds; however, when he tried to pick up his 39-pound nephew, he had to put him down immediately because of pain in his lower back. (R. at 58-59) He said Physician's Assistant Mark Magennis told him to limit his lifting to ten pounds. (R. at 59) Depending on how his hands and neck were feeling, he sometimes could lift a gallon of milk and sometimes not. ( Id.)

McPherson also testified to problems with his neck. He had neck surgery in 1990, and then fell and injured his lower back, requiring surgery. At the time of the fall, he "felt something pop in [his] neck," but he was not yet receiving treatment for his neck, stating his doctors "want to get my back straightened out." ( Id.) He described the problems with his neck as "a tightness . . . which causes numbness in the ring finger and pinky finger on [his] right hand." (R. at 60) He experienced a little pain (which he described as "not very much pain") that radiated down to his right shoulder and upper right arm. ( Id.) He described the numbness in his ring finger and "pinky finger" of his right hand as making his fingers "feel like they're huge sausages. They go completely numb. I can't feel them. They get very cold." ( Id.) The condition sometimes affected his grip because although he could get his thumb and the first two fingers of his hand closed around an object, he was unable to get his ring finger and little finger "to work properly." (R. at 60-61) He lost his grip strength "[a]verage maybe once or twice a day," preventing him from gripping things like a gallon of milk, an iced tea jug, a can of pop, and the like. (R. at 61)

McPherson testified that he could perform minimal tasks involving fine manipulation, such as putting a nut on a bolt or two, but if he had to perform a repetitive task, he would get "a tightness through my forearm up into my shoulder and my neck area." ( Id.) He said the problem was just in his right arm. He also said he no longer experienced carpal tunnel problems, which he had suffered in the past. ( Id.)

Turning to the "run down feeling," McPherson testified he was being treated for mild depression, for which doctors had prescribed two medications: Amitriptyline,³ which he took at night to help him sleep, and Zoloft.⁴ He stated he quit taking Zoloft the third day because it made him "irritable and . . . want to hit people and stuff." (R. at 62) In addition to taking medication, McPherson said he tried to alleviate the depression by talking with his parents, his wife, his doctor and his minister, and by getting out and doing things. However, he stated he got frustrated when he was unable to do things he had attempted. (R. at 63) He testified he had problems sleeping at night, usually getting about six hours of sleep. He tried to go to bed by 11:00 p.m., and got up at 6:30 a.m. to help care for his three children and get them off to school. ( Id.) Specifically, he would go over his children's schedule with them, make sure their homework was done, and remind them what they needed to do that day. (R. at 64) McPherson stated his sleep problems arose from his neck or his fingers becoming numb, and being awakened by pain in his neck, fingers or back. He said he tossed and turned quite a bit and was unable to get comfortable. He said he got up and paced around "at least twice a night," for about 15 minutes each time. (R. at 63)

3 An antidepressant. Dorland's Illustrated Medical Dictionary, 62 (27th ed. 1988).

4 An antidepressant. Physicians Desk Reference, 2217 (50th ed. 1996).

McPherson testified he had been diagnosed with hepatitis C, and it was "still very much of a problem." He said it caused him to have frequent heartburn, and prevented him from giving blood and from acting as assistant scout master for the Eagle Boy Scouts. (R. at 62)

As far as taking care of himself, McPherson said he could bath without assistance, but when it came to dressing himself, he had trouble bending over to put on his shoes and socks. His wife helped him pull on his socks, and then he would "just kind of kick my feet into my shoes." ((R. at 64) He stated his daily routine included talking walks up and down the block in front of his house, stating, "[I]f I can make that I consider that a very good day." ( Id.) He watched a lot of television, and laid on the floor with his legs elevated. He did no yard work, but occasionally would wash or dry the dishes for ten or fifteen minutes to help his wife. Otherwise, he did no housework. (R. at 64-65) McPherson testified that when he helped his wife with housework or took a walk, he would be very sore the next day. He estimated he usually would lie down for six out of every eight hours. (R. at 65) If he was unable to lie down, then he would take pain medication which did not always work. ( Id.) He said that in a typical week, he would have only one "good day," where he didn't have to lie down frequently and was able to maybe do things around the house. The next day, after activity, he would "hurt severely." (R. at 68)

McPherson occasionally would do grocery shopping, but would take his children along to carry the groceries. As far as driving, McPherson limited himself to "a half an hour one way" for trips he took on his own because his back would begin hurting, his leg would become numb, and then he was unable to function afterwards. (R. at 66) If he had to make a longer trip, then he would stop frequently to rest his leg. ( Id.)

McPherson testified he has headaches two to three times a week, lasting anywhere from one hour to five or six hours. The headaches are at the base of his skull and are "just a sharp bitter type headache that is very intense." (R. at 67) He takes pain medication, which does not relieve the headaches, and holds a rag on his forehead. ( Id.)

McPherson said he had not worked for the six years prior to the hearing "except for one day." ( Id.) Prior to that time, he had worked in heavy construction as "a welder, concrete saw operator, heavy equipment operator, things like that." He did not believe he could return to any of those jobs because he "couldn't handle the jarring motion from the construction." ( Id.) He also testified construction jobs require a minimum of 50 pounds lifting ability, and if he did that repeatedly in a day, he would be unable to make it to work the next day. (R. at 67-68)

On questioning by the ALJ, McPherson explained that although his back had improved for awhile after the April 1994 surgery, he was playing with his seven-year-old daughter several months later and as he picked her up, he felt a "pop" in his lower back. He stated his back had been worsening gradually ever since then, getting worse every week. (R. at 68-69) He said that at first, he got by with regular Tylenol for the pain, then he moved to Tylenol II with Codeine, and currently he was taking Hydrocodone. Immediately after the injury, it felt like he had merely strained his back, but the pain continued to worsen and the leg numbness returned. (R. at 69) McPherson testified that between the end of 1995 and the time of the hearing in October 1996, his problems continued to get worse. ( Id.)

McPherson said he had last been hunting, a hobby he enjoyed prior to his injury, in the fall of 1993, and at that time he was able to walk for about an hour-and-a-half. He testified he had been unable to go hunting for the past two years. (R. at 70) He also stated the reason a diskogram had not yet been scheduled was he was awaiting approval for payment from the State of Iowa welfare program. (R. at 72)

In response to further questioning by the ALJ, McPherson clarified his work history somewhat. He stated there were times he operated a bulldozer or a scraper "all day long." He said he had worked for the same company for five years, off and on, and each time they would put him on a different piece of equipment, so he had experience operating several types of equipment, sometimes for an entire day and other times for just an hour or two. (R. at 74-75)

2. Vocational expert's testimony

VE Leona E. Martin testified at the October 4, 1996 hearing. (R. at 73-74, 76-82) The ALJ posed the following hypothetical to the VE:

I'd like the vocational expert to initially assume that I find that the claimant could sit for up to two hours at a time for a maximum of eight hours a day, that he could stand for one to two hours for a maximum of six to eight hours a day, that he is able to walk for 30 minutes at [sic] time, that he could lift up to 10 pounds maximum and 10 pounds frequently, that he should not lift his upper extremities above the shoulder level. He should not more than occasionally kneel, squat, crawl, climb, push, pull, or operate foot controls. That bending should only be occasional. That both hands can be used for grasping, manipulation, and handling. He should not be exposed to excessive temperature extremes. That he is able to follow written instructions and can perform work functions that involve recording of written information. With those limitations and abilities would the claimant be able to return to any of the jobs described in [the Past Relevant Work Summary prepared by the VE]?

(R. at 76) The VE testified the hypothetical claimant would not be able to return to past relevant work based primarily on the lifting restriction and the limitation on squatting, climbing, and the like. (R. at 76-77) The VE opined that none of McPherson's past relevant semi-skilled jobs, including welder, construction, and heavy equipment operator, would provide him with skills that could be transferred to light or sedentary work. (R. at 77)

The ALJ then altered the hypothetical to include "the fact that the claimant is a younger individual who has completed high school and with past vocational training in mechanical drafting and welding, and the work history as set out in [the Past Relevant work summary]." The ALJ asked if such an individual could perform unskilled work. The VE responded:

He would be able to perform unskilled as well as entry level work and he would be able to do entry level work as an assembler which is light and it's light not because of the lifting but because of the fact that would be standing six — up to six hours a day. . . . It's light and entry level semi-skilled. There's estimated to be 90,000 in Iowa and 600,000 in the United States. There would also be jobs as sales counter clerk, rental clerk. . . . There's estimated to be 1,000 in Iowa and 80,000 in the United states. That also is an entry level, semi-skilled. Or as a recreational facility attendant. . . . Entry level, light, semi-skilled. 500 in Iowa, 60,000 in the United States.

. . . .

There would also be sedentary, unskilled jobs such as laborers in production picking threads and pulling cuffs, that kind of thing. . . . There are approximately 1,000 in Iowa, 10,000 in the United States. There are interviewers for instance like a charge account clerk. . . . I'd estimate there would be 200 in Iowa, 20,000 in the United States. There are — could perform such jobs as ticket checker. . . . Estimated to be 1,000 in Iowa and 70,000 in the United States. We also have cashiers, unskilled, sedentary. . . . Estimated to be 1,500 in Iowa and 130,000 in the United States. There are sedentary assembler jobs . . . and there's estimated to be 1,200 in Iowa and 90,000 in the United States. Those are some examples.

(R. at 77-79)

The ALJ altered the hypothetical further to a person who could sit and stand for one-half hour at a time, and excluding bending, stooping, crawling, climbing, operating foot controls, pushing and pulling, and constant grasping with the right hand. The VE testified assembly work and jobs requiring repetitive motion, such as production laborer, would be excluded; however, she testified work as a cashier in some venues still might be possible, as well as some types of interviewers, ticket taker, and protective services system monitor. (R. at 79-80) Other appropriate work might include recreation facility attendant, sales counter clerk or rental clerk, each depending upon the specific job's requirements. (R. at 80-81)

On examination by McPherson's attorney, the VE testified that if the hypothetical claimant also were required to lay down for an hour in the morning and an hour in the afternoon, all the jobs mentioned would be eliminated "because that would not be tolerated." (R. at 81) Any competitive employment also would be eliminated if the hypothetical claimant would miss work anywhere from one to two days a week due to pain and the effect of exertion or activity on his pain. ( Id.)

3. McPherson's medical history ⁵

5 A detailed, chronological summary of McPherson's relevant medical history is attached to this opinion as an Appendix.

McPherson's medical history is rife with treatment for pain in his back, neck and shoulders. Records indicate his back problems began at least as early as May 1987. His neck and shoulder problems began in November 1989, which is the time from which McPherson claims he has been disabled. He appears to have been on numerous medications continually since that time for pain, muscle relaxation, and depression.

In June 1990, McPherson underwent surgery on his back and had a left carpal tunnel release. (App. at A-7) The back surgery relieved his pain and records indicate he recovered well. In August 1990, Dr. Boarini, who had performed the surgery, noted McPherson "could return to work." (R. at 206) However, a month later, McPherson was still experiencing considerable pain in his left shoulder. (R. at 329) Records indicate he had decreased range of motion, marked tenderness and muscular instability in his left shoulder, and he was referred for physical therapy. (R. at 328, 240) He completed a course of seven physical therapy sessions and was scheduled for a vocational rehabilitation program to begin in November 1990. (R. at 242) McPherson underwent a Functional Capacity Evaluation on January 31, 1991, and was released to return to work. (R. at 256-268; App. at A-11) In February 1991, records indicate McPherson was "trying to get a job with a construction company in Latimer." (R. at 327) From McPherson's testimony, it appears he did not get the construction job. ( See R. at 67)

McPherson returned to the doctor in March 1991, complaining of pain in his left arm. Dr. John McKee noted McPherson had "done beautifully since surgery," but opined he might have thoracic outlet syndrome. (R. at 274) He prescribed a nonsteroidal anti-inflammatory medication and scheduled McPherson for a follow-up exam in 60 days. At the return visit, McPherson was still complaining of pain in his right elbow and shoulder and numbness in his arms. ( Id.) McPherson was referred to the Spine Diagnostic and Treatment Center at the University of Iowa Hospitals and Clinics. After examining McPherson, Dr. Ernest M. Found opined, "In my estimation, Mr. McPherson will not be able to return to full-time, heavy-duty work tasks such as found in construction." (R. at 270)

McPherson was still experiencing pain in his left shoulder in September 1991. He was diagnosed with arthritis and bursitis in his left shoulder. He indicated he wanted to return to work. (R. at 327) In February 1992, P.A. Mark Magennis advised McPherson to get some job training or go back to work. (R. at 324) For the next several months, McPherson was on anti-inflammatory and arthritis medications. In June 1992, he was helping his brother with a roofing job and strained his neck. (R. at 322) His neck pain and headaches continued for several weeks, and then he fell at home and hit his nose. ( See App. at A-15) P.A. Magennis noted McPherson was "beginning to lose some hope" and was "[w]illing to try anything to relieve his neck pain and headache." (R. at 321)

In January 1993, McPherson began exhibiting signs of carpal tunnel syndrome in his right wrist. He was going to school at the time and wanted to wait until spring break to consider surgery. (R. at 320) He underwent the right carpal tunnel release in August 1993, and was healing normally at his post-operative exam in September 1993. ( See R. at 319) McPherson apparently had no problems for the next three months, but returned to the doctor in December 1993, complaining that his left shoulder pain had been increasing for the prior three weeks. (R. at 318) He was diagnosed with probable tendonitis or arthritis, started on medication, and told to apply moist heat to his shoulder. ( Id.)

McPherson strained his back further on December 28, 1993, when he was "wrestling around with his kids." (R. 318) X-rays showed mild arthritis, and he was diagnosed with an acute lumbar strain. He had follow-up visits on January 4 and 11, 1994, and again on January 25, 1994, after he fell on the ice. ( See App. at A-18)

On March 15, 1994, McPherson underwent a pre-employment physical for a position at Frigidaire. (R. 316) He was unable to meet the physical requirements for the job. (R. 145) McPherson continued to have back pain, and symptoms of arthritis in his neck, shoulders and back. ( See R. at 316) On April 12, 1994, McPherson went to the emergency room with acute left pelvic pain, radiating down his left leg, and numbing or tingling from his left knee down to his toes. Records indicate that range of motion testing at the waist caused "increased excruciating burning down the left leg, left hip, especially left groin." (R. at 315) He was seen two days later with complaints of low back pain and stating his left foot was cold and tingling. He was scheduled for a CT scan of his lumbar spine and told not to work until further notice. ( Id.)

On April 20, 1994, McPherson was admitted to Mary Greenley Medical Center for surgery for a displaced intervertebral disk. (R. at 289) He underwent a hemilaminectomy for a ruptured disc "that had migrated down to the left side of the thecal sac with impingement of nerve root exiting L-5 and S-1." (R. at 315) Records indicate that following the surgery, McPherson's pain was improved but he still experienced numbness in his left leg. ( Id.) In addition, P.A. Magennis noted McPherson "[m]ay need liver biopsy." ( Id.)

A week later, on May 2, 1994, McPherson stepped off a curb, causing pain in his back. He was treated with ultrasound and hydroculater packs, given a prescription for Tylenol with Codeine #3, and told not to walk for two days. He also was advised to do hamstring stretching exercises. (R. at 314)

On May 23, 1994, McPherson was diagnosed with hepatitis-C virus. He was treated from May through August 1994, with Interferon-Alfa injections. Records indicate the disease "itself should not cause any disability" and there was no reason he "could not be released to return to work." (R. at 307)

A month later, in June 1994, McPherson hurt his right shoulder playing ball. He was treated with moist heat and Tylenol. (R. at 314) McPherson's next complaint of back pain was six months later, on December 22, 1994, when he was referred to an orthopedist to follow up on his laminectomy and check the new mid-back pain. (R. at 313) He saw the orthopedist on January 19, 1995, and the doctor concluded the back pain was due to muscle strain and prescribed regular exercise. (R. at 306) The next month, on February 22, 1995, McPherson was seen for complaints of muscle spasms in his neck and numbness in his right hand. He was referred to physical therapy for treatments three times per week for two weeks, and told to take Tylenol for pain. (R. at 313)

From August through December 1995, McPherson received chiropractic treatments for neck pain and low back pain. (R. 344-355; App. at A-22) During that time period, on September 6, 1995, he was evaluated at his medical doctor's office for chronic neck and lower back pain. Records indicate he was diagnosed with "mild muscle neck spasms." Doctors concluded McPherson could sit for one hour; life up to 10 pounds; travel as desired; and "work environment not restricted." (R. at 341)

McPherson continued to seek treatment for low back pain, neck pain, and numbness in his hands. He was evaluated by an orthopedic surgeon on February 12, 1996, and diagnosed with left leg radiculopathy, post-laminectomy syndrome, and bilateral hand numbness/tingling. The doctor prescribed Tylenol. (R. at 356) McPherson was seen next on September 5, 1996, at the Minnesota Spine Center, still complaining of low back and left leg pain. (R. at 377) On September 18, 1996, McPherson's chiropractor assessed him as having limitations in standing, bending, lifting and walking. The doctor opined McPherson's "ability to do physical work would be limited by his pain and numbness." (R. at 379)

No records were submitted for the period between September 1996 and April 1997. On April 9, 1997, McPherson was seen at the Spine Diagnostic and Treatment Center for complaints of low back and neck pain. The doctor noted McPherson had mildly limited range of motion, and tenderness to palpation, and scheduled him for a Functional Capacity Evaluation. (R. at 412) In June of 1997, McPherson was evaluated by a medical social worker, who opined McPherson "could benefit from two week Rehabilitation Program." (R. at 409) He received a vocational rehabilitation assessment on June 21, 1997, when he reported he did not believe he could work in "competitive physical employment." McPherson expressed the desire to be self-employed, and the rehabilitation counselor provided him with "materials to start [his] own business." (R. at 407)

Also on June 21, 1997, McPherson was evaluated by a clinical psychologist. The doctor noted McPherson felt depressed most of the time; suffered from anhedonia ( see App., note 41), suicidal ideation, and sleep disturbance due to back pain. The doctor stated McPherson "appears sincerely distressed about the current limitations he is experiencing due to his back pain. His family life, work, and social life, all appear to have been negatively affected by his current back pain." She recommended a two-week rehabilitation program to learn coping skills for pain management. (R. at 404)

McPherson underwent a one-day Functional Capacities Assessment on June 24, 1997. The therapist concluded McPherson was "suitable for light to medium heavy work tasks . . . based on his present endurance level," and opined he would benefit from a conditioning program to improve functional strength and endurance. (R. at 401-03)

From July 11, 1997, through October 8, 1997, which is where the record in this case ends, McPherson was treated by mental health professionals for depression. At his intake interview, the records indicate McPherson was having "financial problems due to unemployment." (R. at 417) He had attempted suicide on two occasions and exhibited "severe depressive symptomatology based on the Beck Depression inventory." (R. at 405, 417-18) An antidepressant was prescribed, and for the next three months, records from the Mental Health Center of North Iowa indicate he was neither suicidal nor homicidal and did not display evidence of psychotic symptoms. (R. at 415-16) However, records from the University of Iowa Hospitals and Clinics reference a "serious suicidal ideation" which occurred during September 1997, while he was participating in a chronic low back rehabilitation program. (R. at 384-85) Those records also note McPherson had "difficulty responding to cognitive techniques," was impatient with his recovery, and left the program early due to frustration. ( Id.) In November 1997, McPherson was evaluated by a psychiatrist, who diagnosed Major Depressive Disorder, Personality Disorder, chronic pain syndrome with mood instability secondary to pain; chronic back pain; and poly-substance abuse (in remission). He still did not evidence any psychosis, and was continued on antidepressant medication. (R. at 386-93)

4. The ALJ's conclusion

The ALJ found McPherson "met the disability insured status requirements under Title II of the Social Security Act, as amended, on November 24, 1989, the date he stated he became unable to work, and continued to meet them through December 31, 1994, but not thereafter." (R. at 39) The ALJ further found McPherson's impairments "imposed more than slight limitations upon his ability to function." ( Id.) The ALJ concluded, however, that McPherson did not have an impairment or combination of impairments specifically meeting or equaling the criteria of any impairment listed in 20 C.F.R. Part 404, Appendix 1, Subpart P, Regulations No. 4. ( Id.) The ALJ found McPherson had not performed substantial gainful activity since November 24, 1989, and could not perform his past relevant work as a construction welder or construction laborer. ( Id.) However, the ALJ found McPherson:

[P]ossesses the residual functional capacity to occasionally lift 20 pounds and frequently lift 10 pounds; sit for 2 hours at a time for a maximum of 8 hours a day; stand for 1 to 2 hours at a time for a maximum of 6 to 8 hours a day; walk for 30 minutes; occasionally bend, kneel, squat, stoop, crawl, climb, push/pull and operate foot controls; use both hands for simple grasping, manipulation and handling; and follow written instructions or perform work functions that involve recording written information. The Claimant cannot lift above shoulder level with either upper extremity; and he should not work in areas with excessive temperature extremes.

(R. at 37) The ALJ concluded that although McPherson would be unable to return to his past relevant work as a construction laborer or welder, his residual functional capacity enabled him to perform a significant number of jobs present in the regional and national economy. (R. at 40) Accordingly, the ALJ found McPherson was not under a "disability" as defined in the Social Security Act. ( Id.)

III. STANDARD OF REVIEW A. The Substantial Evidence Standard

Governing precedent in the Eighth Circuit requires this court to affirm the ALJ's findings if they are supported by substantial evidence in the record as a whole. Weiler v. Apfel, 179 F.3d 1107, 1109 (8th Cir. 1999) (citing Pierce v. Apfel, 173 F.3d 704, 706 (8th Cir. 1999)); Kelley v. Callahan, 133 F.3d 583, 587 (8th Cir. 1998) (citing Matthews v. Bowen, 879 F.2d 422, 423-24 (8th Cir. 1989)); 42 U.S.C. § 405(g) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . ."). Under this standard, substantial evidence means something "less than a preponderance" of the evidence, Kelley, 133 F.3d at 587, but "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); accord Ellison v. Sullivan, 921 F.2d 816, 818 (8th Cir. 1990). Substantial evidence is "relevant evidence which a reasonable mind would accept as adequate to support the [ALJ's] conclusion." Weiler, 179 F.3d at 1109 (again citing Pierce, 173 F.3d at 706); Perales, 402 U.S. at 401, 91 S.Ct. at 1427; accord Hutton v. Apfel, 175 F.3d 651, 654 (8th Cir. 1999); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993); Ellison, 91 F.2d at 818.

Moreover, substantial evidence "on the record as a whole" requires consideration of the record in its entirety, taking into account "`whatever in the record fairly detracts from'" the weight of the ALJ's decision. Willcuts v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998) (quoting Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)); accord Hutton, 175 F.3d at 654 (citing Woolf, 3 F.3d at 1213). Thus, the review must be "more than an examination of the record for the existence of substantial evidence in support of the Commissioner's decision"; it must "also take into account whatever in the record fairly detracts from the decision." Kelley, 133 F.3d at 587 (citing Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).

In evaluating the evidence in an appeal of a denial of benefits, the court must apply a balancing test to assess any contradictory evidence. Sobania v. Secretary of Health Human Serv., 879 F.2d 441, 444 (8th Cir. 1989) (citing Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987)). The court, however, does "not reweigh the evidence or review the factual record de novo." Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (quoting Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994)). Instead, if, after reviewing the evidence, the court finds it "possible to draw two inconsistent positions from the evidence and one of those positions represents the agency's findings, [the court] must affirm the [Commissioner's] decision." Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992) (citing Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989)); see Hall v. Chater, 109 F.3d 1255, 1258 (8th Cir. 1997) (citing Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996)). This is true even in cases where the court "might have weighed the evidence differently," Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994) (citing Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992)), because the court may not reverse "the Commissioner's decision merely because of the existence of substantial evidence supporting a different outcome." Spradling v. Chater, 126 F.3d 1072, 1074 (8th Cir. 1997).

B. Disability Determination and the Burden of Proof

Section 423(d) of the Social Security Act defines a disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505. A claimant has a disability when 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 [significant numbers in] the national economy . . . either in the region in which such individual lives or in several regions of the country." 42 U.S.C. § 432(d)(2)(A).

To determine whether a claimant has a disability within the meaning of the Social Security Act, the Commissioner follows a five-step process outlined in the regulations. 20 C.F.R. § 404.1520 416.920; see Kelley, 133 F.3d at 587-88 (citing Ingram v. Chater, 107 F.3d 598, 600 (8th Cir. 1997)). First, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity. Second, he looks to see whether the claimant labors under a severe impairment; i.e., "one that significantly limits the claimant's physical or mental ability to perform basic work activities." Kelley, 133 F.3d at 587-88. Third, if the claimant does have such an impairment, then the Commissioner must decide whether this impairment meets or equals one of the presumptively disabling impairments listed in the regulations. If the impairment does qualify as a presumptively disabling one, then the claimant is considered disabled, regardless of age, education, or work experience. Fourth, the Commissioner must examine whether the claimant retains the residual functional capacity to perform past relevant work.

Finally, if the claimant demonstrates the inability to perform past relevant work, then the burden shifts to the Commissioner to prove there are other jobs in the national economy that the claimant can perform, given the claimant's impairments and vocational factors such as age, education and work experience. Id.; Hunt v. Heckler, 748 F.2d 478, 479-80 (8th Cir. 1984) ("[O]nce the claimant has shown a disability that prevents him from returning to his previous line of work, the burden shifts to the ALJ to show that there is other work in the national economy that he could perform.") (citing Baugus v. Secretary of Health Human Serv., 717 F.2d 443, 445-46 (8th Cir. 1983); Nettles v. Schweiker, 714 F.2d 833, 835-36 (8th Cir. 1983); O'Leary v. Schweiker, 710 F.2d 1334, 1337 (8th Cir. 1983)).

Step five requires that the Commissioner bear the burden on two particular matters:

In our circuit it is well settled law that once a claimant demonstrates that he or she is unable to do past relevant work, the burden of proof shifts to the Commissioner to prove, first that the claimant retains the residual functional capacity to do other kinds of work, and, second that other work exists in substantial numbers in the national economy that the claimant is able to do. McCoy v. Schweiker, 683 F.2d 1138, 1146-47 (8th Cir. 1982) ( en banc); O'Leary v. Schweiker, 710 F.2d 1334, 1338 (8th Cir. 1983).

Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000) (emphasis added) accord Weiler, 179 F.3d at 1110 (analyzing the fifth-step determination in terms of (1) whether there was sufficient medical evidence to support the ALJ's residual functional capacity determination and (2) whether there was sufficient evidence to support the ALJ's conclusion that there were a significant number of jobs in the economy that the claimant could perform with that residual functional capacity); Fenton v. Apfel, 149 F.3d 907, 910 (8th Cir. 1998) (describing "the Secretary's two-fold burden" at step five to be, first, to prove the claimant has the residual functional capacity to do other kinds of work, and second, to demonstrate that jobs are available in the national economy that are realistically suited to the claimant's qualifications and capabilities).

IV. ANALYSIS

McPherson presents two arguments challenging the Commissioner's decision. First, McPherson argues the ALJ erred in not properly evaluating his subjective pain complaints and credibility. Second, McPherson contends the ALJ's decision that he is able to perform substantial gainful activity despite his numerous impairments is not supported by substantial evidence. The court will address each of McPherson's arguments in turn.

A. The Polaski Standard: Subjective Pain Complaints and Credibility Determination

The Sixth and Seventh Circuits have held that an ALJ's credibility determinations are entitled to considerable weight. See, e.g., Young v. Secretary of H.H.S., 957 F.2d 386, 392 (7th Cir. 1992) (citing Cheshier v. Bowen, 831 F.2d 687, 690 (7th Cir. 1987)); Gooch v. Secretary of H.H.S., 833 F.2d 589, 592 (6th Cir. 1987), cert. denied, 484 U.S. 1075, 108 S.Ct. 1050, 98 L.Ed.2d 1012 (1988); Hardaway v. Secretary of H.H.S., 823 F.2d 922, 928 (6th Cir. 1987). Nonetheless, in the Eighth Circuit, an ALJ may not discredit pain allegations simply because there is a lack of objective evidence; instead, the ALJ may only discredit subjective pain complaints if they are inconsistent with the record as a whole. Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir. 1994); see also Bishop v. Sullivan, 900 F.2d 1259, 1262 (8th Cir. 1990) (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)). Under Polaski:

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.

Polaski, 739 F.2d at 1322.

McPherson's argument that the ALJ failed to evaluate properly his subjective pain complaints and credibility requires a review of the Polaski factors to determine whether the ALJ's decision rests on substantial evidence.

McPherson's uncontradicted testimony concerning his daily activities supports his claims of ongoing pain. McPherson testified to disabling pain when performing even the simplest of tasks, such as gripping a gallon of milk or a can of pop (R. at 61), or putting on his shoes and socks. (R. at 64) Despite numerous surgeries, frequent doctor visits, and prolonged, ongoing medication, McPherson testified his pain remains constant and prevents him from engaging in anything more than the most minimal physical activity. He provided specific examples of how his daily living is affected by his physical limitations. ( See R. at 53-75)

McPherson's testimony is supported by his extensive medical records, which describe years of treatment for pain in his back, neck, shoulders and hands. The record describes in detail how McPherson's ongoing, unrelenting pain, and his resultant inability to provide for his family, have led to severe depression and even suicide attempts. This is not a case where the medical evidence reveals only minor impairments and conservative treatment,⁶ which would be inconsistent with McPherson's complaints of disabling pain. On the contrary, although there were times during McPherson's treatment history when doctors recommended he return to work and did not place serious limitations on his ability to work,⁷ the record overall paints a picture of a man living with almost constant pain which has markedly affected his ability to support his family, take part in family activities, and even care for himself, resulting in severe depression and loss of the enjoyment of life.

6 See, e.g., Smith v. Shalala, 987 F.2d 1371, 1374-75 (8th Cir. 1993) (where doctor prescribed only muscle relaxers and mild pain relievers, and placed no significant medical restrictions on claimant's activities, record was inconsistent with complaints of disabling pain); Matthews v. Bower, 879 F.2d 422, 425 (8th Cir. 1989) (record of minor impairments and minimal limits on range of motion were sufficient basis to discount subjective pain complaints).

7 See, e.g., R. at 205, 206, 330.

The ALJ made a specific finding that McPherson's testimony regarding his subjective pain complaints and inability to work was not credible.⁸ The ALJ discounted McPherson's subjective pain complaints because of evidence in the record indicating that in spite of his impairments, McPherson continued to be active intermittently throughout the period since the alleged onset date of his disabling condition. ( See R. at 34-37) The record indicates McPherson attempted to continue activities he formerly had enjoyed, such as hunting, working on cars, and playing with his children. The record also indicates, however, that on each occasion, McPherson's physical limitations prevented him from continuing with these pleasurable activities. McPherson also attended mechanical drafting classes in an attempt to retrain himself for employment purposes. Although he completed his course of study, he found that prolonged keyboarding and sitting exacerbated his pain and caused numbness in his hands. In his analysis, the ALJ credited McPherson's testimony regarding his activities, but completely ignored his testimony about the consequences he suffered from engaging in those activities. In effect, it appears the ALJ penalized McPherson for attempting repeatedly to overcome his disabilities and get on with his life.

8 "[T]he undersigned . . . finds that the Claimant's testimony, insofar as it pertained to the inability to perform virtually any type of work activity on a sustained basis, was not credible." (R. at 36)

McPherson's subjective pain complaints were consistent with the record as a whole. The ALJ's decision to the contrary does not rest on substantial evidence. During the relevant period, the record indicates McPherson was suffering from numerous physical impairments, as well as serious depression. It also appears McPherson's combination of impairments prevented him from working. The only way to conclude McPherson possessed the residual functional capacity to perform work which exists in sufficient numbers in the regional and national economy is to discount his testimony completely. Polaski prevents such a result.

B. Substantial Evidence

The ALJ's decision that McPherson possessed the ability to engage in a sufficient number of occupations which exist in significant numbers is not supported by substantial evidence. The hypotheticals posed to the VE by the ALJ failed to encompass all of McPherson's physical and mental impairments and resulting functional limitations. As such, the VE's opinion based on those hypotheticals cannot constitute substantial evidence on the disability issue. See, e.g., Brenner v. Schweiker, 711 F.2d 96, 99 (8th Cir. 1983) (hypothetical must accurately set forth claimant's impairments and "resulting functional limitations" for expert to make realistic assessment of job availability); McMillian v. Schweiker, 697 F.2d 215, 221 (8th Cir. 1983).

When McPherson's counsel added to the ALJ's hypotheticals the fact that McPherson needs to lie down for a portion of each day, and likely would miss one to two days of work per week due to pain and exertion, the VE testified no competitive employment would be available. (R. at 81) As McPherson's brief accurately sets forth:

For a claimant to be found not disabled, the evidence must establish that that person can work "day in and day out in the sometimes competitive and stressful conditions in which real people work in the real world." McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir. 1982); Anderson v. Heckler, 738 F.2d 959, 960 (8th Cir. 1984).

(Doc. No. 8 at 15-16). Although McPherson testified he occasionally assists his wife with the dishes and grocery shopping, he explained that anything beyond the most minimal of activity causes him to suffer from debilitating pain and exhaustion the following day. Just because McPherson is able to engage in some of the normal activities of daily life "does not qualify as the ability to do substantial gainful activity." Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989); Easter v. Bowen, 867 F.2d 1128, 1130 (8th Cir. 1989).

The court finds, after balancing the evidence as a whole, that the Commissioner has failed to meet his burden of proving McPherson could perform substantial gainful activity despite his impairments.

V. CONCLUSION

The court finds the ALJ's decision that McPherson was not entitled to benefits is not supported by the record as a whole. The court may affirm, modify, or reverse the Commissioner's decision with or without remand to the Commissioner for a rehearing. 42 U.S.C. § 405(g). Furthermore, "[w]here the record overwhelmingly supports a disability finding and remand would merely delay the receipt of benefits to which plaintiff is entitled, reversal is appropriate." Thompson v. Sullivan, 957 F.2d 611, 614 (8th Cir. 1992). Here, the record is clear that McPherson was disabled during the relevant period. Accordingly, the ALJ's decision should be reversed, and the case should be remanded to the Commissioner for the purpose of calculating and awarding benefits.

IT IS RECOMMENDED, unless any party files objections⁹ 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, that judgment be entered in favor of McPherson and against the Commissioner.

9 Objections must specify the parts of the report and recommendation to which objections are made. Objections 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, 106 S.Ct. 466, 475, 88 L.Ed.2d 435 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).

IT IS SO ORDERED.