Opinion
No. C00-4009-MWB.
January 3, 2001.
REPORT AND RECOMMENDATION
TABLE OF CONTENTS
I. INTRODUCTION II. PROCEDURAL BACKGROUND III. "SENTENCE FOUR" REMAND IV. FACTUAL BACKGROUND A. Introductory facts and Terfone's daily activities B. Vocational expert's testimony C. Terfone's medical history D. The ALJ'S conclusion V. STANDARD OF REVIEW A. The Substantial Evidence Standard B. Disability Determination and the Burden of Proof
C. The Polaski Standard: Subjective Pain Complaints and Credibility Determination
VI. ANALYSIS VII. CONCLUSION APPENDIX: Medical Records Summary I. INTRODUCTION
The plaintiff Janice Terfone ("Terfone") appeals the denial by the administrative law judge ("ALJ") of Title XVI supplemental security income ("SSI") benefits. Terfone argues the ALJ erred in finding Terfone does not have an impairment or combination of impairments equal to those listed in the applicable regulations. Terfone argues the ALJ improperly discounted the opinion of her treating psychiatrist and therapist, and placed improper weight on the opinion of an educational psychologist who examined Terfone. Terfone also argues the ALl erred in finding she was capable of performing jobs that are found in significant numbers in the national economy. Thus, Terfone claims she is entitled to SSI benefits, and urges reversal of the ALJ's opinion.
The Commissioner resists Terfone's claims, and, as discussed below, seeks remand for further consideration.
II. PROCEDURAL BACKGROUND
Terfone filed an application for SSI benefits on June 21, 1996, alleging a disability onset date of January 1, 1977. (R. 105-15) The application was denied initially (R. 89-92), and upon reconsideration. (R. 95-98) Terfone then requested a hearing (R. 99), which was held before ALJ Andrew T. Palestini on November 20, 1997. (R. 50-85) Attorney Ruth Carter represented Terfone at the hearing. Terfone, her sister Diana Burnett, and Vocational Expert ("VE") Leona Martin appeared and testified at the hearing.
Despite Terfone's claimed disability onset date, the "first date relevant for consideration of eligibility for benefits is June 21, 1996, the date [Terfone] filed her application for title XVI benefits." (R. 16, citing 20 C.F.R. § 416.501)
On April 9, 1998, the ALJ ruled Terfone was not entitled to SSI benefits. (R. 15-32) The Appeals Council of the Social Security Administration denied Terfone's request for review on December 6, 1999 (R. 5-7), making the ALJ's decision the final decision of the Commissioner.
Terfone filed a timely complaint in this court on January 25, 2000, seeking judicial review of the ALJ's ruling (Doc. No. 3). Pursuant to Administrative Order #1447, entered September 20, 1999, by Chief Judge Mark W. Bennett, this matter was referred pursuant to 28 U.S.C. § 636 (b)(l)(B) to the undersigned United States Magistrate Judge for the filing of a report and recommendation. Terfone filed a brief supporting her claim on August 16, 2000 (Doc. No. 12).
In his initial Answer (Doc. No. 6), filed June 2, 2000, the Commissioner argued the ALJ's findings are supported by substantial evidence in the record, and the Commissioner's decision should be affirmed. Subsequently, however, in the course of preparing his brief, the Commissioner asked the Appeals Council of the Social Security Administration to reconsider the decision. As a result of that review, the Appeals Council determined remand was appropriate for further consideration by the ALJ of Terfone's claims. Accordingly, the Commissioner filed a Motion to Reverse and Remand (Doc. No. 15), requesting remand pursuant to sentence four of 42 U.S.C. § 405 (g), for further consideration. Specifically, the Commissioner seeks an order directing the ALJ to "reevaluate the evidence with respect to [Terfone's] mental impairment and assign appropriate weight to the opinion of [Terfone's] treating psychiatrist, Dale Wassmuth, M.D. The ALJ will also be directed to reevaluate [Terfone's] credibility and residual functional capacity (RFC), and to utilize a hypothetical question which accurately depicts [Terfone's] impairments and limitations." (Doc. No. 16)
Terfone resists the motion, arguing the record as a whole supports a finding of disability, making remand for further consideration both inappropriate and unnecessary. (Doc. No. 17) Both parties have filed supplemental arguments (Doc. Nos. 18 19), and the court now deems the motion ripe for consideration.
III. "SENTENCE FOUR" REMAND
The Eighth Circuit articulated the requirements for remand pursuant to sentence four of section 405(g) in Buckner v. Apfel, 213 F.3d 1006 (8th Cir. 2000), as follows:
Section 405(g), which governs judicial review of final decisions made by the Commissioner, authorizes only two types of remand orders: (1) those made pursuant to sentence four, and (2) those made pursuant to sentence six. See Melkonyan v. Sullivan, 501 U.S. 89, 98-99, 111 S.Ct. 2157, 115 L. Ed.2d 78 (1991); Hafner v. Sullivan, 972 F.2d 249, 250-51 (8th Cir. 1992). Sentence four, by its terms, authorizes a court to enter "a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing." 42 U.S.C. § 405 (g). A sentence four remand is therefore proper whenever the district court makes a substantive ruling regarding the correctness of a decision of the Commissioner and remands the case in accordance with such a ruling. See Melkonyan, 501 U.S. at 98, 111 S.Ct. 2157.
Buckner, 213 F.3d at 1010. After conducting its own independent review of the record, see id. at 1011, the court "may enter an immediate finding of disability only if the record `overwhelmingly supports' such a finding." Id. (citations omitted). Accordingly, the court turns to an independent review of the record as a whole to determine whether the evidence `overwhelmingly supports' a finding that Terfone is disabled, or, on the other hand, whether remand is appropriate for further consideration of Terfone's claim.
IV. FACTUAL BACKGROUND A. Introductory facts and Terfone's daily activities
At the time of the hearing on November 20, 1997, Terfone was 44 years old. (R. 105) She was 4'11" tall and weighed 267 pounds. (R. 53) She was living in her parents' home with her 72-year-old father. ( Id.) Terfone testified she has always lived with her parents. (R. 54) Her father "[m]ostly takes care of himself," and she does the housework and light cooking. Her sister Diana helps with the housework. (R. 56)
Terfone has never learned to drive and does not have a driver's license. She uses public transportation, and one of her sisters drives her places. (R. 54, 136) Her father gets around by walking and taking the bus. (R. 56)
Terfone said she started having emotional problems in junior high school when she "just never felt [she] was . . . as good as the rest of the kids," and she "[d]idn't have any friends or anything." (R. 55) She completed her sophomore year of high school, and later got a GED. (R. 54) She dropped out of school over an incident involving her hair, when she "just couldn't take it anymore" and "just had to leave." (R. 56) Terfone felt she did not fit in with other kids and people were making fun of her. (R. 57)
The record is unclear as to what happened, due to an inaudible portion of the tape. Terfone's testimony is recorded as: "Well, a teacher in class (INAUDIBLE) my hair one day right in front of everybody and just — I just couldn't take it anymore. I had to leave (INAUDIBLE) I just had to leave." (R. 56)
She first tried to get a job after she got her GED. In 1971, she started working as a waitress in a cafeteria-style restaurant at Woolco. She worked there for nine months. (R. 57) Terfone got to work on the bus. She testified she was "nervous and shaky and almost didn't feel like going" to work. (R. 57-58) She was on her feet most of the day. She ran the cash register "[j]ust a little bit, not too much," and she would take people water and clean tables "a little bit." (R. 58) Terfone said she was not allowed to refill customers' water or coffee, stating "they wouldn't let me do that because I'd get too shaky and I'd spill the coffee all over them." ( Id.) She stated she did not interact well with customers, made lots of mistakes, dropped things, and was "really just nervous the whole time." ( Id.) She said she would go in the bathroom and just "[s]tand there . . . stay there and try to get [her] composure." ( Id.) The biggest problems she had were an inability to do things as fast as her boss would like, and dropping things. (R. 69)
Terfone testified she told the restaurant manager that she was uncomfortable around customers, and he told her she "had to keep with it." (R. 59) He gave her a task in "the back," but she cut her finger on a slicing machine, so she "stopped going in the back." ( Id.)
Terfone said she is "[n]ot too good" at working with machines and her hands. She stated she is unable to get her hands open all the way at times because of pain, and she "shake[s] a lot and drop[s] things." ( Id.) She said sometimes her hands swell, and they get "really kind of achy especially in the morning." ( Id.) She testified she used to do cross stitch, but her hands hurt too much and she had to stop. (R. 60) She puts Ben Gay on her hands at night, and wears mittens in the wintertime. ( Id.) She takes Aleve twice a day for the pain. If she uses her hands a lot, it makes the pain worse. (R. 61) Terfone said she has had trouble with her hands for a long time, worsening steadily over the past five years. (R. 60) She has never had a doctor look at her hands and has never been diagnosed with arthritis. Terfone said she is "just too afraid to go to the doctor." ( Id.)
Terfone testified she also has a little bit of pain in her back and her knees. Her back hurts every time she stoops down or tries to pick things up. (R. 61) She said her back pain makes it difficult to do laundry. The pain comes and goes, but gets worse at night and in cold temperatures. (R. 61-62)
She said she has difficulty sleeping because of worrying and she "can't turn [her] mind off or something like that." (R. 62) As a result, she goes to bed around 2:00 a.m., wakes up during the night, and then gets up around 9:00 a.m. ( Id.) She also naps during the day. (R. 63)
She said her legs sometimes "sort of give out when [she is] walking down the steps or walk up a hill or something." ( Id.) She has pain in her knees, and it is hard for her to stand for long periods of time or walk very far. Terfone said she can only stand for "about five minutes or so" before her knees start hurting, and she can walk "about maybe a couple of blocks or something." ( Id.) Her knees get stiff when she sits, but she can stay seated as long as she moves them around. ( Id.) Terfone said she has not seen any doctors about the problems with her hands, knees, or back. (R. 70)
Terfone began therapy for her emotional problems at her sister's suggestion. She started seeing Dr. Dale Wassmuth, a psychiatrist, and Michele Boykin, a social worker, around the time she applied for SSI benefits. (R. 64) She sees a counselor about every two weeks. (R. 65) Terfone said she has been depressed for four or five years, and she also has had anxiety or panic attacks for about five years. She stated she gets anxiety attacks "about once a week or so," on average. ( Id.) She described a typical anxiety attack as follows:
If something is really different or if I'm not sure of something I get all shaky and it's almost like a pressure in my chest. I can't breathe too good and I get dizzy and it's — I don't know, I thought I was having a heart attack. It's really bad. . . . Heart racing and things like that.
(R. 65-66) She said she is working with her counselor to overcome her anxiety. (R. 66)
Terfone described a typical day in her life. She gets up around 9:00 a.m., and sometimes takes a shower and gets dressed, although some days she does not get dressed, brush her teeth, etc., at all. During the day, she will help her father with his medication, sleep, and sit and watch television. ( Id.) She said she used to enjoy listening to music, but she "just [doesn't] feel like doing much" anymore. ( Id.) She cries often, and occasionally thinks about suicide. Terfone said, "Oh, a lot of times at night I feel like nothing's ever going to get better for me. Whatever I try to do it just seems like it backfires on me all the time." (R. 67) She said the last time she thought about suicide was in March 1997, and she does not think about suicide as often as she used to. ( Id.)
Terfone applied for SSI at her sister's suggestion, and her sister helped her fill out the forms. Terfone said she can follow instructions if she can work at her own speed, and she should be able to remember several instructions at once if she was not under pressure and the instructions were not too complicated. (R. 64-65) She said she often gets confused or disoriented in new situations, such as in an elevator or in a building that is unfamiliar to her. (R. 67) She stated she has difficulty talking to new people, and it bothers her and affects her concentration when other people are talking around her. ( Id.) She does not have trouble with her temper; rather, she deals with stressful situations by going off by herself. Terfone said she did not think she could handle being given a deadline to complete work. (R. 67-68)
Terfone stated she is not taking any medication. Her doctor suggested she try Paxil, but he also told her it was "best to do without medication." (R. 68)
Terfone summarized her emotional problems as "[j]ust feeling useless and not good enough and just really afraid to just, you know, talk to people or, you know, I can't look at them when I talk to them." (R. 69)
Terfone's older sister Diana Burnett ("Burnett") testified at the hearing, and provided her observations of Terfone's difficulties, as follows:
Well, [Terfone's] more or less on a road of her own when it comes to (INAUDIBLE) and things. She is not good about making decisions. She calls me about everything. Taking responsibility. She withdraws a lot. I mean, most of the time she won't even know — you'll have to repeat it twice because she doesn't sometime[s] she doesn't even understand what you're saying because she's not listening because she's withdrawing. . . . [Terfone has done this] [m]uch of her life. We had a very difficult childhood and I think that's been the defense mechanism. In order to survive she had to withdraw.
. . . .
She doesn't [interact with people outside the family]. She has no friends. She has never dated. She's never — unless me or one of my sisters get her out, she doesn't go out. Going to the grocery store — and it's actually maybe even worse because it used to be at least she'd go to the grocery store but now my sister has to take her. Just, just leaving the house is a real big thing for her right now.
(R. 71-72)
Burnett was asked to describe Terfone's nervousness. She stated Terfone "has very acute anxiety attacks where she'll just physically shake and start hyperventilating. She just falls apart emotionally, cries. It takes quite a long time to calm her down and it doesn't take much to set her off." (R. 73) Burnett said she helps Terfone with paying some of her bills, but Terfone "mails all the payments in." ( Id.) She said Terfone is easily intimated, and she seldom will call about a disputed bill; she will ask Burnett to help her. (R. 73-74)
Burnett testified she did not believe Terfone would be able to work at this time. She said Terfone "spent her whole life withdrawing so it's going to take awhile to get her back out." (R. 74) Burnett stated Terfone would need some kind of job training and more counseling before she would be able to support herself. (R. 75) She said Terfone had an appointment with a vocational rehabilitation counselor, but she did not attend the appointment because her father got sick and went into the hospital. ( Id.)
B. Vocational expert's testimony
VE Leona Martin testified that she is "an independent rehabilitation consultant under contract with the Social Security Administration." (R. 76) Prior to being asked to testify at the hearing, she had no contact or involvement with Terfone or her case. She did not prepare a past relevant work summary because Terfone had not worked in the preceding fifteen years, and "there was no evidence of a relevant work history in the record." ( Id.)
The ALJ presented the following hypothetical question to the VE:
I'd like you to initially assume that I find the claimant cannot perform complex or detailed instructions; is limited to one or two-step operations; should not have to travel into unfamiliar places as part of the job; she should not have to fill out forms regarding work; she should not have to directly interact with the public but could be in places where others are present especially once she gets to know them; she should not have to work with more than a few other workers at a time when performing the actual job function; she should not have to use her hands in water frequently. . .; stress levels at work should be at a normal or ordinary level so that there's no quota or production (INAUDIBLE) days work . . .; she should not have to have prolonged concentration on one task for more than two hours so the work should be more short, repetitive type activities and should involve no more than occasional climbing. With those factors and considering that she is a younger individual with the equivalent of a high school education and no work background, is there any unskilled work she could perform?
(R. 76-77)
The VE responded in the affirmative. She said Terfone could work as a laundry worker, household cleaner, hand packager, or sewing machine operator, all of which are light and unskilled jobs existing in sufficient numbers in both the Iowa and national economies. (R. 78) The VE clarified that the sewing machine operator position might not suit the limitations provided in the hypothetical because it often involves piece work, where the person is paid by the number of pieces completed. The VE stated "that may be . . . more stressful than you'd like to have her exposed to." (R. 78-79)
The VE initially said the laundry worker job would not require Terfone to have her hands in water. She would fill a machine, or could put towels on a roller. (R. 78) A laundry job also could involve only folding and sorting. (R. 83) However, the VE agreed Terfone might have to handle wet clothing, and would be on her feet much of the time. (R. 81)
The household cleaning job would not require Terfone to travel from place to place; it would be in, for example, a hospital or nursing home. (R. 78) The VE agreed the job could involve mopping the floors, which would require gripping the mop handle. (R. 82)
The ALJ then added to the hypothetical that the claimant would be limited to standing and moving around for five minutes at a time. The VE said that limitation would rule out the listed jobs; however, there are other sedentary jobs that would not require Terfone to be on her feet for more than five minutes at a time. Terfone could work as a laborer in production, "such as a cuff folder or someone who threads cuts threads on garments, that kind of thing." (R. 79) She also could be a sedentary hand packager, or work in an administrative support occupation such as an addresser, or cutter and paster. (R. 79-80)
The ALJ next added to the hypothetical an inability to grasp on a constant basis. The VE explained how the added limitation would affect Terfone's ability to perform any of the light jobs (i.e., laundry worker, household cleaner, hand packager, sewing machine operator), as follows:
She would need to be able to hold items in order to do the cleaning work or to operate a sewing machine to put the materials in the machine and so depending upon the amount of grip that she would have, that would be limited. And as a hand packager, she would need to pick things up and put them in packages. So she would be using her hands in all of these jobs.
Q On a constant basis. And the same apply to the sedentary jobs of cuff folder, hand packager and addresser?
A Yes. The things that she'd pick up and use as an — in the administrative support positions as a sedentary unskilled such as an addresser, they would be very light and would not require a whole lot of grip but she would — it would necessitate that she pick things up with her hands and use her hands.
Q Would there be light or sedentary jobs that would only require occasional grasping with the other factors I gave you?
A The cleaner and household housekeeping [sic] would be frequent reaching and handling but only occasionally fingering, you know, grasping, at least in a firm, repetitive manner. And using a sewing machine, it wouldn't necessarily need a tight grasp in order to push the materials through the sewing machine but there would be some use of the hands and reaching and fingering.
(R. 80-81)
The VE stated the hand packaging job likely would require some type of quota to be maintained, but would not be "as fast-paced as like on a production line, for instance." (R. 82)
C. Terfone's medical history
A detailed chronology of Terfone's medical history, taken from the records she provided in support of her application for benefits, is attached as an Appendix to this opinion. At the time Terfone initially applied for benefits on June 21, 1996, she listed her disabling conditions as "breathing problems, gallstones, psychological problems." (R. 108) Her records indicate she had surgery to remove her gallbladder on July 2, 1996. (R. 166-72) She did well after surgery (R. 180), and the records contain no further indication of abdominal problems. This is consistent with the ALJ's conclusion that "[t]he record does not support any limitations in the claimant resulting from the effects of the gall bladder surgery." (R. 18)
Terfone's "breathing problems" also are undocumented. It appears what she perceives as breathing problems actually may be related to her anxiety or panic attacks. (See R. 165-66, 173, 176)
Terfone's psychological and emotional problems are the most well-documented in the record, and also the most likely to constitute a disabling condition. She began seeing a counselor on June 14, 1996 (see R. 160), at the urging of her family members. She was diagnosed with depression, generalized anxiety disorder, and dependent personality disorder, as well as exhibiting difficulties due to her obesity. (See, e.g., R. 175-79, 194-201, 227-35)
The record as a whole presents a confusing picture of Terfone's mental state. Her counselor and treating psychiatrist offer opinions indicating Terfone may very well be disabled. On the other hand, the results of independent testing obtained by the Commissioner were far less conclusive. The psychologists who evaluated Terfone for the Commissioner were unsure whether Terfone actually has serious problems or was malingering for purposes of seeking SSI benefits. They were unable to reach a definitive conclusive evaluation because of the manner in which Terfone responded to questions and to the testing itself. For example, James N. Butcher, Ph.D., who evaluated Terfone's MMPI-2 test results, said Terfone presented "an unusual number of psychological symptoms" which "could result from poor reading ability, confusion, disorientation, stress, or a need to seek a great deal of attention for her problems . . . . She may be showing a lack of cooperation with the testing or she may be malingering by attempting to present a false claim of mental illness." (R. 210) The psychologists' evaluations seem to be directly at odds with the testimony of Terfone and her sister, and with the evaluations of the counselor who treated her for over a year and her treating psychiatrist.
Terfone also is claiming some disability related to problems with her back, neck, and/or hands. The medical records indicate she may suffer from carpal tunnel syndrome or early arthritis (see R. 241-43, 245-46), but again the records are less than conclusive in showing Terfone has a disability from these difficulties. Terfone testified in some detail about problems with her hands which are undocumented in the medical records.
D. The ALJ's conclusion
The ALJ found Terfone had no past relevant work, and no acquired work skills transferable to the skilled or semi-skilled work functions of other work, and she had not engaged in substantial gainful activity at any time relevant to her SSI application. (R. 31-32) Regarding Terfone's impairments, the ALJ found:
The medical evidence establishes that the claimant has the following severe impairments: mild carpal tunnel syndrome; cholelithiasis status post cholecystectomy; obesity; personality disorder; and depression with anxiety features, but she does not have an impairment or combination of impairments listed in, or medically equal to one listed in [the applicable regulations].
(R. 31, ¶ 2) The ALJ also found Terfone's subjective complaints to be "less than fully credible," and similarly found the testimony of Terfone's sister not to be credible. (R. 31, ¶ 3)
The ALJ recognized that Terfone's treating psychiatrist, Dr. Dale Wassmuth, found Terfone to be substantially limited in most of the functions required in a normal work environment (see R. 21-22); however, the ALJ noted Dr. Wassmuth's evaluation failed to indicate how many times he had met with Terfone. The ALJ placed some emphasis on the fact that Terfone was not taking Paxil, as recommended by her physician, and found Terfone "made a statement at the hearing indicating that it was her decision" not to take the medication. (R. 22) The record itself, however, indicates this finding is in error. Terfone actually testified that although her doctor initially recommended Paxil, the doctor "said it's best to do without medication." (R. 68) Thus, the ALJ's finding that Terfone failed to follow treatment specified by her physician was in error. Nevertheless, the ALJ was correct in noting that when "an impairment can be controlled by treatment or medication[,] it cannot be considered disabling." (R. 29) The record fails to indicate whether Terfone has tried medication, and the results of the treatment.
The ALJ placed great emphasis on the opinion of licensed psychologist John A. McMeekin, Ed.D., which contradicts Dr. Wassmuth's opinion. McMeekin's report stated Terfone's profile showed exaggeration, and indicated her test results were excessively elevated in comparison to her appearance and behavior in the interview. (R. 25, 202-07)
The ALJ found Terfone's "activities of daily living are not consistent with the level of impairment which she has alleged[.]" (R. 26) In particular, he noted:
There are inconsistencies between information provided by the claimant in the course of her application and what the claimant has told the social worker and the psychiatrist. The social worker's notes indicate that the claimant only had a relationship with family, having no other social contacts. In contrast, on her application for benefits the claimant indicated that she would at least "visit with friends." Even within the time the claimant has applied for benefits, the record shows that she has been able to get out and interact with those she knows or even with strangers. In June 1996, the claimant came alone by bus to go see the social worker. The claimant has reported that she attended a family get-together on Memorial Day just prior to her application for benefits. As shown on the standard form, the degree of limitation in regards to difficulties in maintaining social functioning, her most significant such limitation, is between slight and moderate. When the claimant came to see the psychologist, Dr. McMeekin, in December 1997, she had taken the bus accompanied by her sister, and was not distressed after the sister left. The ability to take the bus by herself is significant, and does not bespeak a level of functioning that precludes all contact with strangers. The claimant admitted at the hearing that she can use public transportation, and in familiar places, will do "good." The record shows shyness and some level of impairment in social functioning of this claimant, but as a whole the record does not support an allegation of total isolation and inability to work with others.
(R. 27-28; internal citations omitted)
The ALJ discounted the January 1998 evaluation by Dr. Wassmuth, finding his report seemed to be based on Terfone's subjective statements "and not on any clinical measurement. The psychiatrist does not appear to have had a close grasp of the facts upon which he based his conclusion." (R. 28) The ALJ found an inconsistency in reports of the frequency of Terfone's panic attacks. At the hearing, Terfone reported having attacks about once per week, while she told Dr. McMeekin the attacks occurred "once in awhile." ( Id.) Placing heavy emphasis on this perceived inconsistency, the ALJ found:
Clearly, this inconsistent indication of the level of the panic attacks by the social worker shows exaggeration of the frequency and therefore an inaccurate assessment of the severity of the claimant's impairments.
( Id.)
The court does not find the same level of inconsistency as did the ALJ in Terfone's statements to doctors and counselors, and her testimony at the hearing. "Once per week" and "once in awhile" could be considered consistent statements.
The ALJ relied on the VE's testimony in finding that jobs exist in sufficient numbers in the national economy which Terfone could perform. (R. 30) With respect to Terfone's employment-related limitations, the ALJ found:
The claimant has the residual functional capacity to perform the physical exertional and nonexertional requirements of work with the following limitations: cannot perform complex, detailed instructions; is limited to one to two step operations; should not have to travel to unfamiliar places as part of the job; should not have to fill out forms in performing work; cannot directly interact with the public, though could be where others are present, especially when she gets to know them; can do no work with more than a few others at a time when actually working; cannot use hands frequently in water; must have no more than an ordinary level of stress, with no quota or fast paced work; and cannot do prolonged concentration on one task for more than two hours; can do short, repetitive work activity; and can do no more than occasional climbing.
(R. 31, ¶ 4)
V. 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).
C. 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.
VI. ANALYSIS
The court agrees with the Commissioner that the record, as it stands, is not sufficient to overwhelmingly support an immediate finding of disability. The record strongly suggests Terfone has significant psychological difficulties which affect her daily living. The record also suggests Terfone may be limited in the use of her hands. The record is not, however, conclusive as to whether Terfone's limitations are severe enough to constitute a disability under the regulations, or to prevent her from engaging in gainful employment. On the other hand, neither is the denial of benefits supported by substantial evidence in the record. Rather, the evidence in the record is conflicting and often ambiguous, mandating further consideration.
The Commissioner suggests the ALJ should "be directed to reevaluate the evidence with respect to [Terfone's] mental impairment and assign appropriate weight to the opinion of [Terfone's] treating psychiatrist," and "reevaluate [Terfone's] credibility and residual functional capacity (RFC), and to utilize a hypothetical question which accurately depicts [Terfone's] impairments and limitations." (Doc. No. 16) The court agrees, and finds the Commissioner's denial of benefits at this stage is not supported by substantial evidence in the record. Accordingly, sentence four remand is the appropriate remedy in this case. See Buckner, supra, 213 F.3d at 1012-13.
VII. CONCLUSION
The court may affirm, modify or reverse the Commissioner's decision with or without remand to the Commissioner for rehearing. 42 U.S.C. § 405 (g). In this case, the court finds deference to the ALJ is proper, and the case should be remanded for further consideration pursuant to sentence four of section 405(g).
Accordingly, IT IS RECOMMENDED, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b), within ten (10) days of the service of a copy of this Report and Recommendation, that the defendant's motion be granted, and that this case be remanded to the Commissioner with instructions for reconsideration consistent with the above opinion.
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.