Opinion
Civ. No. 02-228 (JRT/RLE)
January 24, 2003
REPORT AND RECOMMENDATION
I. Introduction
The Plaintiff commenced this action, pursuant to Section 405(g) of the Social Security Act, Title 42 U.S.C. § 405(g) , seeking a judicial review of the Commissioner's final decision, which found that he was not entitled to Disability Insurance Benefits ("DIB"), under Title II of the Social Security Act. The matter is presently before the Court upon the parties' cross-Motions for Summary Judgment. For these purposes, the Plaintiff has appeared by James I. Roberts, Esq., and the Defendant has appeared by Lonnie F. Bryan, Assistant United States Attorney. For reasons which follow, we recommend that the Plaintiff's Motion for Summary Judgment be denied, and that the Defendant's Motion be granted.
II. Procedural History
The Plaintiff filed an application for DIB on July 27, 1999, in which he alleged that he had been disabled, since October 12, 1998, due to injuries sustained to his lower back, which occurred on January 23, 1997. [T. 121, 488-491]. The Plaintiff's claim was denied upon initial review, and upon reconsideration. [T. 22]. The Plaintiff then requested a Hearing before an Administrative Law Judge ("ALJ") and, on July 11, 2000, a Hearing was conducted, at which time, the Plaintiff appeared personally, by a representative, and with the assistance of an interpreter. [T. 22, 51-97, 476]. Thereafter, on July 28, 2000, the ALJ issued a decision which denied the Plaintiff's claim for benefits. [T. 16-30]. The Plaintiff then requested administrative review before the Appeals Council, [T. 14-15], but the Appeals Council declined to review the ALJ's decision further. [T. 7-9]. Thus, the ALJ's decision became the final decision of the Commissioner. See, Sims v. Apfel, 530 U.S. 103, 106 (2000); Hutsell v. Massanari, 259 F.3d 707, 710 (8th Cir. 2001); 20 C.F.R. § 404.981. This action was commenced on January 22, 2002.III. Administrative Record
A. Factual Background. At the time of the Hearing, the Plaintiff was thirty-eight years old. [T. 56]. He had achieved a sixth grade education in Mexico, and was capable of reading and writing in Spanish, but he was not proficient in English. [T. 56-57, 509]. The Plaintiff has worked in a variety of positions, including: as a truck driver, groundskeeper, and packer. [T. 504, 518-21].The Record is not clear as to the last date on which the Plaintiff worked. [T. 57-58]. The ALJ found, however, that the Plaintiff had not engaged in disqualifying substantial gainful activity since at least October 13, 1998, and after that date, the Plaintiff worked for only a short period of time, which also did not amount to substantial gainful activity. [T. 23]. The last job at which the Plaintiff worked was at Gold'n Plump, where he repaired gloves with a needle and thread, but that was only for a very short period of time — perhaps only one day. [T. 57-58]. Prior to that, the Plaintiff was employed at Gold'n Plump as a packer. [T. 518-19].
At the Hearing, the ALJ asked the Plaintiff when he had last worked, at any job, for any period of time, to which the Plaintiff responded, "[w]ell, it's been about, the last time I went to Golden Plum for four hours, maybe about a year and a half or two ago/' [T. 57-58]. The Record reveals that the Plaintiff previously reported having worked at Gold'n Plump from March of 1996, to January of 1997. [T. 518-19]. On April 12, 1999, however, the Plaintiff reported to Dr. Joseph N. Blonski, who the Plaintiff saw for a possible kidney infection, that he was working at Gold'n Plump at that time, but it is not certain whether the Plaintiff was actually working. [T. 621].
As stated, the Plaintiff was originally injured on January 23, 1997, while working at Gold'n Plump, when he sustained a work related injury to his lower back. [T. 121]. The fact that the Plaintiff's injury rendered him disabled is uncontested by the Defendant, in light of the decision of June 14, 1999, which granted the Plaintiff DIB for the period from January 23, 1997, to October 12, 1998. Thus, the Plaintiff's medical history is only pertinent to the extent that it reflects upon the Plaintiff's condition from October 13, 1998, to July 11, 2000, the date on which the ALJ is sued the decision now under review. However, the Plaintiff argues that the ALJ erred in finding that his back condition was not of Listing level severity and, therefore, the Plaintiff's medical his tory is not relevant beyond the scope of that argument.
The Plaintiff's medical record reflects that the Plaintiff had a history of degenerative disc disease of the lumbar spine and, on March 27, 1997, after conservative treatment failed, the Plaintiff underwent a surgical procedure — decompressive laminectomies on three levels. [T. 121, 185-86, 189-90]. Then, on January 14, 1998, the Plaintiff underwent another surgery, a fusion with TSRH instrumentation, and iliac crest bone grafting, at L2 through SI. [T. 319-23].
The Plaintiff started working again, in early October of 1998, but reported having pain in his buttocks on October 16, 1998, and as a result, he saw Dr. Jeffrey S. Gerdes — the surgeon who performed the procedures on the Plaintiff's back — on Monday, October 19, 1998. Dr. Gerdes advised the Plaintiff that he should not work during the upcoming weekend, but that the Plaintiff could return to work on Sunday, October 25, 1998, concluding that the Plaintiff's pain was just a response to the Plaintiff's increased activity level, and noting that he did not think that there was a specific structural etiology for the Plaintiff's complaint. [T. 430],
On December 24, 1998, the Plaintiff completed a "Pain Questionnaire," in which he reported that he was experiencing, in association with his pain, numbness, tingling, weakness, increased sweating, muscle spasm, and loss of sleep, and in which he state that "sometimes I can't sleep because of pain in the back and legs." [T. 384]. The Plaintiff also rated his pain, at its worst, on a scale of 0-15, as "pain as bad as you can imagine'" — a designation that the questionnaire allowed for pain in excess of the 0-15 scale. [T. 385]. The Plaintiff reported that, at its best, his pain was a 13, on the 0-15 scale; and was usually a 10. [T. 385].
On January 12, 1999, the Plaintiff saw Dr. Gerdes again. [T. 421]. The Plaintiff complained of back pain, which Dr. Gerdes felt was the result of the Plaintiff's attempts to increase his work hours from five to six hours daily, and of the Plaintiff's deconditioned state. [T. 421]. Dr. Gerdes gave the Plaintiff a "work slip," which kept him off of work. [T. 421].
On January 28, 1999, the Plaintiff, complaining of pain in his lower back, buttocks, and left leg, saw Dr. Thomas Balfanz. [T. 390-92]. Dr. Balfanz noted some range of motion limitations, but observed no focal weakness, nor weakness attributed to any nerve root, and he reported intact sensation. [T. 391]. The Plaintiff could walk from heel to toe, but his gait was slow and stiff, and he had pain on his left side with straight leg raising. [T. 391]. Dr. Balfanz concluded that the Plaintiff suffered from deconditioning, recommended a strengthening program, advised the Plaintiff to increase his activity level, and suggested that the Plaintiff return to light duty work which would allow for a change of positions every 45 minutes, for six hours per day, and four hours on days on which the Plaintiff was scheduled for rehabilitation. [T. 391-92]. Dr. Balfanz noted that the Plaintiff disagreed with his recommendations, expressing, instead, that rest and relaxation would be more appropriate. [T. 391-92]. The Plaintiff, and the Plaintiff's wife, who accompanied him on his visit with Dr. Balfanz, and who acted as the Plaintiff's interpreter, expressed frustration with Dr. Balfanz. The Plaintiff's wife told Dr. Balfanz to be quiet. [T. 392]. Thus, Dr. Balfanz wrote that, based on the Plaintiff's reaction to his recommended treatment, "it will be very difficult to achieve any results with him given his attitude regarding all of the above" as, "[i]n my experience, rehabilitation does not succeed unless the patient goes into it with a good attitude and seems committed to improving functional status." [T. 392].
From April 1, 1999, to May 10, 1999, the Plaintiff underwent physical therapy, participating in nine visits, but making only marginal improvements, and complaining of pain throughout the sessions. [T. 595-604]. The Plaintiff's physical therapist reported that the Plaintiff was discharged due to poor tolerance. [T. 595]. In connection with the rehabilitation, the Plaintiff met with Dr. Balfanz, on April 27, 1999, at which time Dr. Balfanz noted a 13% improvement in workload with the lumbar extensors, and a 20% improvement in the Plaintiff's range of motion in flexion and extension. [T. 604]. Dr. Balfanz recommended that the Plaintiff continue his physical therapy for three more weeks, at which time, Dr. Balfanz explained, there would be nothing further to offer the Plaintiff for his problems. [T. 604]. During that time, the Plaintiff was kept off of work pursuant to the orders of his treating physician, Dr. Gerdes. [T. 419, 604].
On May 20, 1999, Dr. Balfanz again examined the Plaintiff. [T. 594]. The Plaintiff complained of back pain, but stated that he had no leg symptoms. [T. 594]. The Plaintiff's strength was full — 5/5 — and his gait appeared normal, but the Plaintiff exhibited a limited range of motion in his back, as well as tenderness. [T. 594]. Dr. Balfanz suggested that the Plaintiff find a light duty job which would allow him to change positions, and which would only occasionally require postural activities, such as bending and twisting. [T. 594].
On June 14, 1999, the Plaintiff saw Dirck A. Curry, who examined the Plaintiff in response to the Plaintiff's complaints of low back pain. [T. 621]. The Plaintiff also reported pain in his buttocks, and down both legs. [T. 621]. Dr. Curry noted some limitation in the Plaintiff's back range of motion, but normal reflexes, sensation, motor control, and gait. [T. 620]. Dr. Curry diagnosed the Plaintiff with obesity, and expressed the view that the Plaintiff's weight gain had added to the strain on the his back and, therefore, he recommended that the Plaintiff attempt weight reduction, by lowering his caloric intake, and by engaging in low impact exercise, such as bicycling, water aerobics, or swimming. [T. 620].
On August 31, 1999, Dr. Curry reported that the Plaintiff was unable to stand for long periods of time, and noted that, even after fifteen minutes on his feet, the Plaintiff required sitting to alleviate the pain in his back. [T. 618]. Dr. Curry further observed that the Plaintiff was unable to do any exertional activity, or mild lifting, due to discomfort in the L2-S1 region of his lower back. [T. 618]. The treatment recommended by Dr. Curry was vocational rehabilitation, as Dr. Curry concluded that the Plaintiff was unable to do the work he had previously performed at Gold'n Plump, was unable to work on assembly lines, and would not be able to perform any work in the foreseeable future. [T. 617-18].
On December 16, 1999, the Plaintiff again saw Dr. Curry, who recorded that the Plaintiff's gait, motor control, and reflexes were normal, but observed some slight weakness in the Plaintiff's lower left leg, upon toe raising. [T. 635]. Dr. Curry diagnosed the Plaintiff as having bilateral radiculopathy. [T. 635].
On January 17, 2000, a computerized tomography ("CT") scan of the Plaintiff's back revealed chronic low back pain, and a history of previous surgery, but further diagnosis was compromised by an extensive scatter artifact from the rods and screws that were employed in the posterior fusion. [T. 632]. On January 18, 2000, Dr. Curry examined the Plaintiff, and reported appropriate motor control and gait, with weakness in the right leg, and sometimes a slight limp. [T. 633], The Plaintiff's toe raises were stronger on the left than on the right, and his sensation down in the lower extremities was duller on the right side, than on the left. [T. 633]. Strength and straight leg raising was bilaterally equal with good strength in holding the leg out. [T. 633].
On November 7, 2000, Dr. Curry wrote to Mr. John Provinzino, and reported that the Plaintiff received a second injection to the middle back, which helped immensely, and he suggested that the Plaintiff enter a work vocational rehabilitation program, with limitations. [T. 637]. The limitations suggested by Dr. Curry included: not lifting more than five pounds, more than once in one half hour; and not engaging in any crawling, climbing up ladders, or heavy pushing or pulling of objects heavier than ten pounds. Given these restrictions, he recommended that the Plaintiff be employed in light duty desk work. [T. 637].
On June 29, 2001, Dr. Curry wrote a second letter to Mr. Provinzino, in which he reported that the Plaintiff continued to suffer from significant pain in his lower back, and from radiculopathy down the left leg. [T. 638]. Dr. Curry further noted that the Plaintiff was unable to work, unless specific training in a new task would allow him to sit and stand periodically. He felt that the Plaintiff could not perform any heavy lifting or exertion. [T. 638].
B. Hearing Testimony.
The ALJ commenced the Hearing by noting that there was a previous favorable decision, which granted the Plaintiff disability benefits from January 23, 1997, to October 12, 1998, and that the Plaintiff then sought to extend the period of disability from that latter date, to present. [T. 55]. The ALJ then questioned the Plaintiff's attorney on the Plaintiff's theory for extending the period of disability. Id. Counsel responded that the Plaintiff was illiterate in the English language, and was unable to perform the full range of sedentary activities, due to the Plaintiff's pain, and his restrictions in motion. Id. Having thus framed the issue, the ALJ commenced questioning the Plaintiff.
After providing the ALJ with certain background information, the Plaintiff responded, with the assistance of an interpreter, that he knew very little English. [T. 56-57]. The Plaintiff stated that he had a valid driver's license, could read street signs, and could sometimes read the labels on cans of food. [T. 57]. He further explained that he had taken a class in English, but that he only attended for approximately two weeks and, at work, he communicated with his supervisors through the assistance of interpreters. Id.
The ALJ next questioned the Plaintiff about his work history, and asked him the date on which he last worked, at any job, for any period of time, to which the Plaintiff responded, "[w]ell, it's been about, the last time I went to Golden Plum [sic, Gold'n Plump] for four hours, maybe a year and a half or two ago. [T. 57-8]. At that job, the Plaintiff recounted, he repaired gloves with a needle and thread, and was able to stand up and sit down. [T. 58]. The Plaintiff had no formal instruction in sewing, and never sewed using a machine, and he advised that he had previously worked for Gold'n Plump in other capacities. Id.
The ALJ inquired of the Plaintiff whether he had a worker's compensation claim with that employer. Id. The Plaintiff answered that the claim was settled for thirty-eight thousand dollars, at sometime during the preceding year. [T. 58-59].
Then, the ALJ began questioning the Plaintiff as to his family life. [T. 59]. The Plaintiff responded that his wife was not employed, and that he had four children who were living with him in his house, and three children, from a previous marriage, who were residing elsewhere.Id.
The Plaintiff's employment history was the next subject for the ALJ's questions. Id. The Plaintiff initially responded that he had "worked for the city hall, recreation parks, driving trucks that had potatoes, and labor." Id. When asked by the ALJ whether he had done any packaging, the Plaintiff replied that he had, at Gold'n Plump. [T. 59-60].
Responding to questions from the ALJ, the Plaintiff testified that he came to the United States approximately twenty years before, and first lived in Eagle Pass, Texas, and then moved to Minnesota, where he has resided for the past seven years. [T. 60]. The job at which the Plaintiff worked for the longest duration was at City Corps, where the Plaintiff worked for four years, performing maintenance work at parks, and other recreational sites. Id.
The ALJ asked the Plaintiff whether he had gone to the Department of Vocational Services ("DVS") in an effort to obtain employment, and whether anyone had suggested that he do so, to which the Plaintiff responded that he had not, because of pain, and because he did not know the location of the DVS offices. He did state that one of doctor's told him to visit DVS, but never provided him with an address. [T. 61]. Then, the ALJ inquired whether the Plaintiff exercised, and whether exercise was ever recommended by any of the Plaintiff's doctors. [T. 61-62]. The Plaintiff responded that he did not exercise, and explained that he had been exercising, but had stopped because of back pain. [T. 62], The Plaintiff also testified that he sometimes walked for two, or two and a half blocks. Id.
When pressed by the ALJ as to whether any of the Plaintiff's doctors spoke with him about exercise, the Plaintiff denied any such conversations. Id. The ALJ then read from the report that had been prepared by Dr. Balfanz, which reflected that the Plaintiff, and his wife, disagreed with the doctor's treatment philosophy, which included an increase in the Plaintiff's activity level. [T. 63-4]. The Plaintiff responded that he had tried to work, but could not tolerate the pain, and he explained that, when he was receiving physical therapy, his condition worsened. [T. 64-5]. Finally, the Plaintiff reported that the reason he stopped physical therapy was because he was bleeding from his rectum, although the Plaintiff acknowledged that his doctor had not told him the physical therapy had caused that bleeding. [T. 65]. After the bleeding stopped, however, the Plaintiff did not return to physical therapy. [T. 65-6].
The ALJ went on to question the Plaintiff about his physical therapy, and his visits to Dr. Balfanz, noting that Dr. Balfanz reported that the Plaintiff's functional ability had showed improvement. [T. 66]. The Plaintiff maintained that he was unable to perform those exercises and, therefore, discontinued the therapy. [T. 66].
Returning to his previous question about DVS, the ALJ noted that Dr. Balfanz had stated, in his report, that the Plaintiff should attempt to contact the Department of Vocational Rehabilitation, and that the number for that department was available at Dr. Balfanz's office. [T. 67]. The Plaintiff responded, however, that Dr. Balfanz never gave him the phone number. Id.
The ALJ next posed questions to the Plaintiff concerning his personal finances. [T. 67]. As neither the Plaintiff, nor his wife, were working, the Plaintiff explained that they received a check from the government, but the Plaintiff did not know from which government — federal, state, or local — or the amount of the check, saying that his wife handled the finances. [T. 67-68]. The attorney representing the Plaintiff advised that the checks were in the amount of approximately $700.00, and that the Plaintiff's family also received approximately $300.00 in food stamps monthly. [T. 68].
The Plaintiff further responded that his family dwelt in a two bedroom home, which also had a living room, bathroom, kitchen, and laundry room. [T. 68]. The Plaintiff stated that the only chore he performed around the house was picking up papers, which he accomplished with the assistance of a tool. [T. 68-9]. Thus, when asked what he did all day, the Plaintiff replied, "nothing, walk, take my kids to the park." [T. 69].
The ALJ asked the Plaintiff about the thirty-eight thousand dollar check that he had received from his worker's compensation settlement, and the Plaintiff explained that he used the money to purchase a 1999 Chevrolet Suburban, and to pay down some debts. [T. 69]. The Plaintiff further advised that the car drove well, and that he was able to drive the car for up to an hour without problems. Id.
The Plaintiff testified that he was not a member of any groups, or organizations, and he stated that his only hobby was going to second hand stores, [T. 70], where he would purchase tools to fix engines, such as lawn mower engines. The Plaintiff agreed with the ALJ's description of him as a "general handy man." [T. 71].
Finally, the ALJ asked the Plaintiff what was the worse problem which prevented him from working. [T. 71]. The Plaintiff answered that it was painful for him to stand for long periods of time, which he stated was twenty-five minutes or more. Id. The Plaintiff went on to say that it was better to walk than stand, but that it was best to both walk and sit, trying to do the two about half the time. [T. 71-2]. The Plaintiff stated that the level of pain he suffered varied. [T. 72].
The Plaintiff's attorney then briefly questioned the Plaintiff. [T. 72]. Counsel, and the Plaintiff, exhibited significant difficulties in communicating, and the only testimony elicited was that the Plaintiff, after his surgery, attempted to resume work at the reduced time of four hours a day, but was unable to continue because of the pain. [T. 72-74]. The Plaintiff then advised, at that point in the Hearing, that he was in pain, and the ALJ stated that the Plaintiff could stand if he liked, and noted that the Hearing, up to that point, had consumed forty-five minutes. [T. 74].
Next, the ALJ questioned the Plaintiff's wife, Laura L. Rodriguez, also with the assistance of an interpreter. [T. 74]. The ALJ asked Ms. Rodriguez several background questions, which included inquiring when she and the Plaintiff married, to which she replied that they had been married for eight years. [T. 75]. Ms. Rodriguez also stated that she, and the Plaintiff, had four children together, and that she had one child from a previous relationship, so that there were actually five children living in their home, aged twelve, five, four, two, and five months.Id. The ALJ then asked the Plaintiff's wife about the assistance her family was receiving from the government, and Ms. Rodriguez explained that the family was receiving welfare assistance of $811.00 a month, as well as $469.00 in food stamps. [T. 76].
The ALJ concluded his questioning of Ms. Rodriguez by asking her about her recollections of the Plaintiff's visits with Dr. Balfanz. [T. 76-7]. Ms. Rodriguez could not answer any of the specific
inquiries, and stated that she could not remember the discussions with Dr. Balfanz. Id.
The Plaintiff's attorney then questioned Ms. Rodriguez, and asked her if she typically spent the day with the Plaintiff. [T. 77]. She responded affirmatively, and explained that, "sometimes," the Plaintiff's back did not feel good, and that he would lie down and ask her to give him a back massage. [T. 78]. Ms. Rodriguez further explained that her husband was not the same person that he was prior to his back surgeries, and stated that he used to enjoy repairing things around the house, but now, "sometimes," he could not take the pain. Id. She went on to say that her husband sometimes took pills to sleep, and changed positions while sleeping. Id. Ms. Rodriguez also advised that, on occasion, the Plaintiff had to lie down during the day.Id.
The ALJ then resumed his questioning of Ms. Rodriguez, and inquired whether the Plaintiff was ever depressed, or if his problems were only physical [T. 78-9]. Ms. Rodriguez responded that the Plaintiff was not depressed, and that she believed the Plaintiff's problems were only physical, and stemmed from his back pain. [T. 79].
The Medical Expert ("ME"), Dr. James F. Hammarstein, was then qualified, and sworn. [T. 79-80]. Prior to testifying, Dr. Hammarstein questioned Ms. Rodriguez about who performed the family's grocery shopping. [T. 80]. She responded that she did the shopping, but that, sometimes, the Plaintiff would accompany her and, at other times, she would shop in the company of their two youngest children, while leaving the others at home with the Plaintiff. Id. Ms. Rodriguez also explained that, when necessary, the Plaintiff would run to the store to make small purchases, such as buying soda or tortillas. [T. 80-1].
Dr. Hammarstein then inquired about the family's home, and specifically, whether it was a house, or an apartment, how large the yard was, and who did the outside maintenance, such as mowing, and shoveling snow in the winter. [T. 80]. Ms. Rodriguez explained that they lived in a two bedroom home, with a regular size yard, and stated that the house was a duplex, and that her brother, and sister-in-law, lived in the adjoining unit. Id. She testified that the Plaintiff mowed, and shoveled, but did so sparingly, and that her brother also shoveled on occasion. [T. 81]. Finally, Dr. Hammarstein asked Ms. Rodriguez if she had memory problems, to which she responded that she did not.Id. Next, Dr. Hammarstein questioned the Plaintiff. [T. 82].
First, he asked the Plaintiff whether he smoked, or drank alcoholic beverages. Id. The Plaintiff replied that he did not smoke, and drank beer once a month. Id. Then, Dr. Hammarstein inquired whether the Plaintiff changed the oil in his car, or the spark plugs. Id. The Plaintiff responded that he did not, and that his nephew did it for him. Id.
Dr. Hammarstein concluded his examination of the Plaintiff by asking about the Plaintiff's driving habits, noting the Plaintiff's remark, to the ALJ, that he could only drive one hour at a time, and inquired where the Plaintiff would drive to in an hour. [T. 82]. The Plaintiff answered that he had driven to "Bruton," and once to Eagle Pass, Texas, and Mexico, in order to visit his parents, during which he and another switched driving duties. The Plaintiff added that, when he was not driving, he would lie down in the back of the vehicle. [T. 83]. The Plaintiff testified that his family joined him on that trip.Id.
The ALJ then examined Dr. Hammarstein, asking him to summarize the evidence that he believed to be relevant, and to render his opinion as to whether the Plaintiff met, or equaled, any relevant Listing. [T. 83-4], Dr. Hammarstein summarized the Plaintiff's medical records, and noted that there was some lack of agreement among the Plaintiff's treating physicians. [T. 84], He observed that Dr. Gerdes, who was the surgeon who operated on the Plaintiff, referred the Plaintiff to Medx for exercise programs. [T. 85]. Dr. Hammarstein also noted that the Plaintiff saw Dr. Curry, a doctor of osteopathic medicine, who advised that the Plaintiff was unable to work on an assembly line, and that the Plaintiff was returning to school in order to learn a new occupation. Id. Dr. Curry also had expressed the view that the Plaintiff had problems standing for fifteen minutes or more, and that the Plaintiff would be unable to perform any work within the foreseeable future. Id.
Next, Dr. Hammarstein cited the Plaintiff's visits to Dr. Balfanz, and noted that Dr. Balfanz had advised that there was light duty work that would be suited to the Plaintiff, and had concluded that the Plaintiff's physical restrictions were as follows: lifting twenty pounds occasionally, and ten frequently, changing positions between sitting and standing every forty-five minutes, and only rare bending and twisting.Id. Dr. Hammarstein stated that he agreed with Dr. Balfanz's assessment, but explained that, perhaps, the Plaintiff's limitations were better stated that he should change positions between standing and walking every thirty to forty-five minutes, should lift from the floor only rarely, should be required to do no more than moderate concentration, or to perform work that requires detailed or complex instructions. [T. 85-6]. Upon questioning by the ALJ, Dr. Hammarstein contrasted "moderate" concentration, such as the heightened level of concentration required by an occupation such as an air traffic controller, or by a job requiring the employee to continuously observe a monitor, with such tasks as driving a vehicle, which would only require moderate concentration. [T. 86].
Following the ALJ's examination of the ME, the Plaintiff's attorney questioned Dr. Hammarstein about whether the Plaintiff's limitations involved any restriction on bending. [T. 87]. Dr. Hammarstein responded that bending should not be performed on a repetitive basis, but he stated that both bending, and twisting, could be done intermittently.Id.
The ALJ then resumed his questioning of the ME, and asked whether the doctor was referring to occasional bending, or rare bending and twisting, and defined "occasional" as being up to one-third of the time. [T. 87]. Dr. Hammarstein replied that the Plaintiff could engage in bending and twisting with greater than occasional frequency, as long as those movements could be interrupted. Id. In further clarification, the ME testified that, if the bending or twisting occurred over one-third of the time, then it should be spread out over the day. Id.
Dr. Hammarstein also testified that a functional capacity evaluation of the Plaintiff revealed that he had some difficulty in doing fine dexterity work on a rapid basis, but he noted that this evaluation was done prior to the Plaintiff's last surgery. [T. 87-8]. The Plaintiff's attorney then inquired of Dr. Hammarstein as to whether a functional test had been performed after the Plaintiff's last surgery. [T. 88]. Dr. Hammarstein responded in the negative. Id.
Next, the Vocational Expert ("VE"), Wayne Onkon, testified that the Plaintiff's prior work consisted of unskilled, and some semi-skilled jobs, which had medium physical demands. [T. 90]. The ALJ then posed a hypothetical to the VE, by asking the VE to assume a person in his late thirties, with a sixth grade education, that was obtained in Mexico, who had basic literacy in Spanish, and very limited in English, and further assumed that Dr. Hammerstein that the ME had adopted Dr. Balfanz's opinion as to the Plaintiff's functional capacity, but with the ME's noted modifications. Given those assumptions, the VE was asked whether the Plaintiff could perform his past work. [T. 90-1], The VE responded that the Plaintiff could not. [T. 91].
The ALJ then asked the VE if the Plaintiff had any transferable skills to other work within the stated limitations, with the further assumption that the Plaintiff's work level was at the low level, semi-skilled position, and that driving was difficult on the Plaintiff's back. [T. 91]. The VE replied that there would be no transferable positions, but that there would be unskilled positions to which the Plaintiff could transfer his skills, such as his job at Gold'n Plump. [T. 92]. The VE described that position as a "hand packager," and added that, in that general category, there were about 15,000 such positions in Minnesota, with about half of those positions being classified as either light, or sedentary. Id. The VE further concluded that, taking into account the Plaintiff's limitations, including the "sit/stand" option, and the change of posture every thirty minutes, there were about 3,000 positions that would satisfy that hypothetical. Id.
The VE also explained that he would also list an assembler of small products or parts — DOT 739.687-030 — as an unskilled position, and testified that, in such category, there were about 5,000 job positions, after reducing the number from 10,000 in order to take into consideration the Plaintiff's need for postural changes every thirty minutes, and the Plaintiff's other restrictions. [T. 92]. Finally, the VE included various assembler positions, such as bench assembler — DOT 706.684-042 — as also constituting an unskilled position, at the light level. Id. There were an additional 2,000 positions, in Minnesota, in that category. Id.
The ALJ then inquired whether the aforementioned jobs were only available in Minnesota, to which the VE responded that those positions were available in the national economy. [T. 93]. The VE stated that, conservatively, the number of positions available in Minnesota, to which he had testified, could be multiplied by a magnitude of forty to include all of the positions available in the national economy. Id. Thus, the 5,000 assembler positions, which were available in Minnesota, would translate into 200,000 assemblers in the United States.Id.
The ALJ also questioned whether, if one assumed that the Plaintiff's pain rendered him unable to work three to five days per month, would that be consistent with performing full-time competitive work. [T. 94]. The VE answered that it would not. Id.
Finally, the Plaintiff's attorney posed several questions of the VE, including whether hand packaging would involve lifting. [T. 94]. THE VE responded that such a position would involve some lifting, but would be within the Plaintiff's stated restrictions. Id. Counsel for the Plaintiff then asked if the positions would require moderate concentration, to which the VE responded that the positions would require moderate concentration, but no more concentration than was required to drive an automobile. Id. The VE also explained that the identified positions would likely include some expected production goals, and further stated that the goals would be calibrated to assume an eight hour day, with a lunch break, and two additional breaks, but would not include breaks for lying down when one's back hurt. As a result, the VE stated that the Plaintiff would not be able to perform those positions if lying down occasionally was required. Id.
C. The ALJ's Decision. The ALJ issued his decision, which denied the Plaintiff's request for benefits, on July 28, 2000. [T. 22-9]. As he was required to do, the ALJ applied the sequential, five-step analytical process that is prescribed by 20 C.F.R. § 404.1520. [T. 23]. As a threshold matter, the ALJ concluded that the Plaintiff had not engaged in substantial gainful activity since his alleged onset date of disability. [T. 23],
Under the five-step sequential process, the ALJ analyzes the evidence as follows:
(1) whether the claimant is presently engaged in a " substantial gainful activity;'' (2) whether the claimant has a severe impairment that significantly limits the claimant's physical or mental ability to perform basic work activities; (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations; (4) whether the claimant has the residual functional capacity to perform his or her past relevant work; and (5) if the claimant cannot perform the past work, the burden then shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform.Simmons v. Massanari, 264 F.3d 751, 754-55 (8th Cir. 2001).
A claimant is disabled only if he is not engaged in substantial gainful activity; he has an impairment that limits his ability to perform basic work activities; and his impairment is either presumptively disabling, or he does not have the residual functional capacity to perform his previous work, and he cannot perform other work existing in the national economy. Id. at 754. Furthermore, if drug addiction or alcoholism is a contributing factor, which is material to the determination of disability, then the claimant is not disabled. See,Estes v. Barnhart, 275 F.3d 722 (8th Cir. 2002);Title 42 U.S.C. § 423(d)(2) . The relevant inquiry is whether a person would still be found to be disabled if he stopped using drugs or alcohol. 20 C.F.R. § 404.1535.
Next, the ALJ examined whether the Plaintiff was subject to any severe physical or mental impairments, which would substantially compromise his ability to engage in work activity. See, 20 C.F.R. § 416.921 . The ALJ found that the Plaintiff was subject to a medically determinable severe impairment consisting of degenerative disc disease of the lumbar spine, with post decompressive laminectomies, in March of 1997, and a lumbar fusion, in January of 1998, with pain. [T. 23].
Third, the ALJ compared the Plaintiff's severe impairments with the Listed impairments in Appendix 1, to Subpart P of the Regulation No. 4. See 20 C.F.R. § 404.1520 (d). The ALJ found that the Plaintiff was not subject to an impairment, or combination of impairments, that met, or equaled, the preconditions of any Listed impairment. [T. 23].
Appendix 1 contains a Listing of Impairments that identifies a number of different medical conditions and describes a required level of severity for each condition. If the required severity is met, the claimant is found disabled without considering vocational factors.
The ALJ then proceeded to determine the Plaintiff's residual functional capacity ("RFC"). [T. 23-7]. The ALJ conducted a credibility analysis of the Plaintiff's complaint, that he could not perform any work activity, and concluded that the Plaintiff's complaint was inconsistent with the overall Record. [T. 23-7], The ALJ then determined the Plaintiff's RFC to be as follows:
The claimant has the following residual functional capacity: lifting and carrying 20 pounds occasionally and 10 pounds frequently; rare lifting from the floor of small items only; standing and walking every 6 hours of an 8 hour day; sitting 6 hours of an 8 hour day' sit/stand option every 30 to 45 minutes; occasional bending and twisting; and moderate levels of concentration.
RFC is a measure of what a claimant can do despite limitations. See, 20 C.F.R. § 404.1545.
[T. 28].
Based on this RFC, as well as the testimony of the VE, the ALJ concluded that the Plaintiff retained the ability to perform his past relevant work. [T. 28]. As a result, the ALJ concluded that the Plaintiff was not under a disability, at any time, in the relevant time period.Id.
III. Discussion
A. Standard of Review. The Commissioner's decision must be affirmed if it conforms to the law and is supported by substantial evidence on the Record as a whole. See, Title 42 U.S.C. § 405(a); see also, Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002); Quails v. Apfel, 158 F.3d 425, 427 (8th Cir. 1998); Callus v. Cal-lahan, 117 F.3d 1061, 1063 (8th Cir. 1997). This standard of review is more than a mere search for the existence of evidence supporting the Commissioner's decision. See, Morse v. Shalala, 32 F.3d 1228, 1229 (8th Cir. 1994), citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488-91 (1951). Rather, the substantiality of the evidence must take into account whatever fairly detracts from its weight, see, Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998); Newton v. Chater, 92 F.3d 688, 692 (8th Cir. 1996), and the notable distinction between "substantial evidence," and "substantial evidence on the record as a whole," must be observed. See, Wilcutts v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998). On review, a Court must take into consideration the weight of the evidence, apply a balancing test, and determine whether or not substantial evidence in the Record as a whole supports the findings of fact upon which a Plaintiff's claim was granted or denied. See, Loving v. Secretary of Health and Human Services. 16 F.3d 967, 969 (8th Cir. 1994);Thomas v. Sullivan. 876 F.2d 666, 669 (8th Cir. 1989).
Substantial evidence means more than a mere scintilla; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See, Moad v. Massanari, 260 F.3d 887, 890 (8th Cir. 2001); Jackson v. Apfel, 162 F.3d 533, 536 (8th Cir. 1998); Black v. Apfel, 143 F.3d 383, 385 (8th Cir. 1998). Stated otherwise, "[substantial evidence is something less than a preponderance, but enough that a reasonable mind would conclude that the evidence supports the decision."Banks v. Massanari, 258 F.3d 820, 822 (8th Cir. 2001). Therefore, "if, after review, we find it possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, we must affirm the denial of benefits." Howard v. Massa- nari, 255 F.3d 577, 581 (8th Cir. 2001), citing Mapes v. Chater, 82 F.3d 383, 385 (8th Cir. 1996); see also, Fenton v. Apfel, 149 F.3d 907, 910 (8th Cir. 1998'); Scott v. Chater, 112 F.3d 367, 368 (8th Cir. 1997). Under this standard, we do not reverse the Commissioner even if this Court, sitting as the finder-of-f act, would have reached a contrary result. See, Harris v. Shalala, 45 F.3d 1190, 1193 (8th Cir. 1995);Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).
Consequently, the concept of substantial evidence allows for the possibility of drawing two inconsistent conclusions and, therefore, it embodies a "zone of choice," within which the Commissioner may decide to grant or deny benefits without being subject to reversal on appeal. See, Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994); see also, Haley v. Massanari, 258 F.3d 742, 746 (8th Cir. 2001) ("[A]s long as there is substantial evidence in the record to support the Commissioner's decision, we will not reverse it simply because substantial evidence exists in the record that would have supported a different outcome,Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995), or 'because we would have decided the case differently.'"), quoting Holley v. Massanari, 253 F.3d 1088, 1091 (8th Cir. 2001). Our review of the ALJ's factual determinations, therefore, is deferential, and we neither reweigh the evidence, nor review the factual record de novo. See,Flynn v. Chater, 107 F.3d 617, 620 (8th Cir. 1997);Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996).
B. Legal Analysis. In support of his Motion for Summary Judgment, the Plaintiff solely argues that the ALJ improperly concluded that the Plaintiff's back condition neither met, nor equaled, Listing 1.05C.
a. Standard of Review. At Step Three, the Plaintiff bears the burden of establishing that his impairments satisfy each of the preconditions, which are contained in a pertinent Listing, through the submission of evidence concerning his symptoms, signs, and laboratory findings. See, Ostronski v. Chater. 94 F.3d 413, 418 (8th Cir. 1996) ("Where, as here, the ALJ's determination that [the claimant] does not meet the listing criteria is supported by substantial evidence in the record as a whole, we will not second-guess the ALJ"); Marciniak v. Shalala, 49 F.3d 1350, 1353 (8th Cir. 1995) ("For a claimant to show that [his] impairment matches a listing, it must meet all the specified medical criteria") , quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990) [emphasis in original];20 C.F.R. § 404.1525(c). Similarly, "[f]or a claimant to qualify for benefits by showing that his unlisted impairment, or combination of impairments, is 'equivalent' to a listed impairment, he must present medical findings equal in severity to all the criteria for the one most similar listed impairment." Sullivan v. Zebley, supra at 531 [emphasis in original]; see also, Brown v. Sullivan. 902 F.2d 1292, 1296 (8th Cir. 1990). Should the Secretary conclude that a claimant's impairments do not meet or equal one of the Listed Impairments, then the Record must demonstrate that the ALJ actually considered the impairments in combination. See, Arnick v. Sullivan. 921 F.2d 174, 176 (8th Cir. 1990);Gooch v. Secretary of Health and Human Services. 833 F.2d 589, 591-92 (6th Cir. 1987).
b. Legal Analysis. The Plaintiff contends that he satisfied the elements of Listing 1.05C, Disorders of the Spine, and as such, the ALJ's finding, that he did not, is legal error. Plaintiff's Brief at 5.
On November 19, 2001, the Agency published final Rules for evaluating musculoskeletal disorders. See, 66 Fed.Reg. 58010 (2001). Those Rules became effective on February 19, 2002. Id. The ALJ issued his decision on July 28, 2000, which was prior to the date on which the revised final Rules became effective. As a result, the ALJ applied the former rules. Our review of the Commissioner' s final decision is made in accordance with the Rules in effect at the time of the final decision, which were the Rules applied by the ALJ, See 66Fed.Reg, at 58011.
In pertinent part, Listing 1.05C provides that an individual is disabled if he or she has the following impairments:
Other vertebrogenic disorders (e.g., herniated nucleus puplosus, spinal stenosis) with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2:
1. Pain, muscle spasm, and significant limitations of motion in the spine; and
2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and re flex loss.20 C.F.R. Pt. 404, Subpt. P. App.1., § 1.05(C).
The Plaintiff maintains, we conclude erroneously, that the Record established each of the referenced elements.
Our close parsing of the Record demonstrates that the ALJ reasonably concluded that the Plaintiff's impairments did not meet this Listing, during the relevant period. While the ALJ did not expressly state his reasons for deciding that the Plaintiff did not meet or equal any of the Listings, and while it would have been decidedly preferable for the ALJ to "explicitly state the reasons why a claimant failed to meet a listing, the conclusion may [nevertheless] be upheld if the record supports it." Dunahoo v. Apfel, 231 F.3d 1033, 1037 (8th Cir. 2001), citing Briggs v. Callahan, 139 F.3d 606, 609 (8th Cir. 1998). Therefore, we turn our analysis to whether the ALJ's determination, at Step Three, was supported by substantial evidence in the Record as a whole.
In support of his argument, that his back condition satisfies the requisites of Listing 1.05C, the Plaintiff contends that he met the first requirement of Listing 1.05(C)(1), since he experienced pain, muscle spasm, and significant limitation of motion in the spine. Specifically, he notes that he sustained a four-level fusion in his low back, which resulted in eighty percent of the vertebra, in his low back, being static. The Plaintiff cites to twenty-three references in the Record to support that assertion. Plaintiff's Memorandum of Law in Support of Summary Judgment, at 5. The Plaintiff notes that Dr. Kramer examined him on September 16, 1997, and found his range of motion, in his low back, was only sixty-nine percent. [T. 208]. This examination, however, was completed prior to the Plaintiff's fusion surgery, and was during a period of disability in a prior proceeding.
While the evidence referenced by the Plaintiff does show that, at some point, he had experienced the factors comprising the first criteria for Listing 1.05(C) — pain, muscle spasms, and limitations of motion in the spine — the evidence does not specifically show that the Plaintiff satisfied that first requisite during the relevant period. [T. 430, 633, 635, 638]. As we have detailed, since the Plaintiff seeks DIB, he must demonstrate that he became disabled after October 13, 1998, the alleged onset date of his disability. What is readily evident, from a cursory review of the evidence cited by the Plaintiff, is that it does not relate to the relevant period at issue here, but rather, it constitutes evidence of his condition prior to that relevant period. Specifically, of the Plaintiff's twenty-three citations to the Record, only four of those citations pertain to the relevant time period, and none of the citations provide medical documentation of muscle spasms, but merely record the Plaintiff's complaints. While the Commissioner suggests that self-reported complaints, by the claimant, cannot satisfy the medical findings required by the first element of Listing 1.05(C), the case cited for that proposition is not on point. See, Dixon v. Sullivan. 905 F.2d 237, 238 (8th Cir. 1990). Quite simply, Dixon cannot be contorted to support the Commissioner's argument.
However, even if we accepted the Plaintiff's urging, that he satisfied the symptoms enumerated in the first element of Listing 1.05C, that would not be sufficient. We first confronted this issue in Marciniak v. Shalala, supra at 1353, where our adoption of the Commissioner's interpretation of Listing 1.05(C), was affirmed, on appeal, as follows:
The ALJ found that Marciniak did not meet or equal the second criteria for this listed spinal disorder because medical evidence indicated no significant motor loss with muscle weakness and no significant sensory and reflex loss. Marciniak undoubtedly suffers pain and spinal impairments, but there is substantial evidence to support the ALJ's conclusion that her medical impairments do not equal the listing because there are no medical findings comparable in kind or severity to the second criteria. Marciniak's medical records indicate that her doctors noted "[n]o obvious motor or sensory deficit and deep tendon reflexes were brisk and symmetrical." (R. at 168.) Thus, even if Marciniak's complaints of pain were sufficient to equal the first medical criteria under the listing, the absence of medical findings similar and equal in severity to the second criteria is fatal to her claim of medical equivalency.
The very same may be said here. The medical evidence of Record demonstrates that the Plaintiff's motor control, sensation, and reflexes were normal. [T. 391, 594, 604, 620, 633, 635].
On December 21, 1999, Dr. Curry observed that the Plaintiff had appropriate motor control and gait. [T. 635]. On January 20, 2000, Dr. Curry again noted that the Plaintiff had normal motor control and gait, appropriate with weakness in the right leg. [T. 633], Dr. Curry also stated that the Plaintiff's reflexes were normal. Id. Further, the Plaintiff was able to walk heel to toe, and his gait and motor testings were repeatedly normal. [T. 391, 594, 604, 620, 633, 635]. Thus, the Plaintiff has failed to show the requisite reflex, sensory, and motor loss during the relevant period. Moreover, as the Defendant argues, the ME reviewed the entire medical record and found that the Plaintiff's condition did not satisfy any Listing, as did the two State Agency physicians who reviewed the medical record. [T. 84, 458, 462]. The Plaintiff offers no opinions, nor any medical findings, to the contrary.
In sum, given the uncontested medical evidence we have referenced, the Plaintiff failed to carry his burden of proof at the Third Step by satisfying the second criteria of Listing 1.05(C), and therefore, the ALJ's determination at that Step is supported by substantial evidence. Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000); Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994); Browning v. Sullivan. 958 F.2d 817, 823 n. 4 (8th Cir. 1992); Nelson v. Sullivan. 966 F.2d 363, 366 (8th Cir. 1992). As a result, we find no reversible error in this respect, and we recommend that the Defendant's Motion for Summary Judgment be granted, and that the Plaintiff's cross-Motion be denied.
NOW, THEREFORE, It is —
RECOMMENDED:
1. That the Plaintiff's Motion [Docket No. 15] for Summary Judgment be denied.
2. That the Defendant's Motion [Docket No. 18] for Summary Judgment be granted.
NOTICE
Pursuant to Federal Rule of Civil Procedure 6(a), D. Minn. LRl.l(f), and D. Minn. LR72.1(c)(2), any party may object to this Report and Recommendation by filing with the Clerk of Court, and by serving upon all parties by no later than February 10, 2003, a writing which specifically identifies those portions of the Report to which objections are made and the bases of those objections. Failure to comply with this procedure shall operate as a forfeiture of the objecting party's right to seek review in the Court of Appeals.
If the consideration of the objections requires a review of a transcript of a Hearing, then the party making the objections shall timely order and file a complete transcript of the Hearing by no later than February 10, 2003, unless all interested parties stipulate that the District Court is not required by Title 28 U.S.C. § 636 to review the transcript in order to resolve all of the objections made.