Opinion
Case No. A1-04-55, Docket No. 12, Case No. A4-04-55.
December 21, 2004
ORDER REMANDING THE ACTION TO THE COMMISSIONER TO CONSIDER NEW AND MATERIAL EVIDENCE
The plaintiff, John Burck, seeks judicial review of the Social Security Commissioner's denial of his application for disability insurance benefits. For the reasons set forth below, the Court remands the action to the Commissioner to consider new and material evidence.
I. PROCEDURAL HISTORY
The plaintiff, John Burck, filed an application for disability insurance benefits (DIB) on January 16, 2003, alleging that he had been disabled since November 20, 2001. (Tr. 12). Burck's claim was denied by the Social Security Administration ("Commissioner") on April 9, 2003. (Tr. 30). Burck subsequently made a timely request for reconsideration that was also denied. (Tr. 34-38). He then requested a hearing by an administrative law judge ("ALJ"). (Tr. 39). A hearing was held on August 26, 2003, before ALJ William J. Musseman. (Tr. 322-43). The ALJ issued a decision denying Burck's claim for benefits. (Tr. 12-20). On March 9, 2004, Burck requested review by the Appeals Council. (Tr. 7). The Appeals Council denied Burck's request to review the ALJ's decision, thereby adopting the ALJ's opinion as the Commissioner's final decision on the matter on April 9, 2004. (Tr. 4-6). On May 6, 2004, Burck filed a timely complaint with this Court seeking judicial review of the Commissioner's decision. (Docket No. 1).
On September 20, 2004, the Commissioner filed a Motion for Summary Judgment. On September 21, 2004, the Plaintiff filed a Motion for Summary Judgment.
II. BACKGROUND
The plaintiff, John Burck, was born on January 22, 1968. (Tr. 47). He was thirty-six years old on the date of the administrative hearing. (Tr. 13). Burck has a high school equivalency certificate and past work experience as a truck driver, farm laborer, construction laborer, bone cleaner and bus driver. (Tr. 13).
The record reveals that Burck has a history of back and leg pain beginning in 1996. (Tr. 102). Burck underwent a lumbar laminectomy in 1996. (Tr. 103). Due to persistent problems, a spinal fusion was performed on February 25, 2003. (Tr. 114). Burck claims that his back pain renders him unable to retain work and that he must lay down for much of the day. (Tr. 327-28). According to Burck, his lower back pain radiates into his hips and legs. (Tr. 329). This leg pain causes spasms in his right leg. (Tr. 329). Burck rated his pain at between a seven and eight on a ten-point scale (ten being the most painful). (Tr. 331). Burck takes pain medication every four hours which causes intense drowsiness. (Tr. 328). Due to depression stemming from his inability to work, Burck has also been prescribed anti-depressants. (Tr. 330).
Burck testified that he is able to care for his personal hygiene, except for cutting his toenails. (Tr. 332). He sometimes cooks, but is unable to do the dishes, dust, sweep, vacuum, make beds, do the laundry, or shop for groceries. (Tr. 332). Burck cares for his child, and visits his father that lives approximately five miles away. (Tr. 333). He occasionally drives, but only locally. (Tr. 333). In his spare time, Burck watches television, reads, and cares for his bird. (Tr. 333). Burck testified that his typical day starts between 8:00 and 10:00 a.m., with walking around his yard and talking with his bird. (Tr. 335). Burck will occasionally visit his father during the day, and take a nap between 2:00 and 3:00 p.m. (Tr. 335).
III. ALJ'S DECISION
The ALJ used the five-step sequential evaluation mandated by 20 C.F.R. § 404.1520 in determining whether Burck was disabled:
(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.
(Tr. 17-24).
For the first step, the ALJ found that Burck had not taken part in substantial gainful employment since his onset date of November 20, 2001. (Tr. 13). At the second step, the ALJ recognized that Burck's back pain was a severe physical impairment, but found that his depression did not constitute a severe mental impairment. (Tr. 13-14). At the third step, the ALJ found that Burck's impairments did not meet any of the criteria of any of the listed impairments. (Tr. 14).
Moving to the fourth step, the ALJ determined that Burck was prevented from taking part in his past relevant work due to his impairments. (Tr. 17). However, when reviewing the record as a whole, the ALJ held that Burck would still be able to perform unskilled sedentary work. (Tr. 18). Based on the evidence, and relying on testimony from a vocational expert, the ALJ found that Burck could perform a significant number of jobs to include food and beverage order clerk, small parts assembler, and quotation clerk. (Tr. 18). Based on the five-part test, the ALJ found that Burck was not "disabled" within the meaning of the Social Security Act. (Tr. 18).
IV. STANDARD OF REVIEW
This Court plays a limited role when reviewing the Commissioner's decisions. Wiseman v. Sullivan, 905 F.2d 1153, 1155 (8th Cir. 1990). The Court does not conduct a de novo review. Keller v. Shalala, 26 F.3d 856, 858 (8th Cir. 1994). Rather, it looks at the record as a whole to determine whether the decision is supported by substantial evidence. Upon a review of the pleadings and transcript of the record, the Court can affirm, modify, or reverse the decision of the Commissioner, with or without remanding the case for a rehearing. 42 U.S.C. § 405(g). To affirm the Commissioner's decision, the Court must find that it is supported by substantial evidence appearing in the record as a whole. Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989). "Substantial evidence is less than a preponderance, but enough so that a reasonable mind might find it adequate to support the conclusion." Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992). The review of the record is more than a search for evidence supporting the Commissioner's decision. The Court must also take into account matters that detract from the ALJ's findings and apply a balancing test to weigh evidence which is contradictory. Kirby v. Sullivan, 923 F.2d 1323, 1326 (8th Cir. 1991); Sobania v. Secretary of Health Human Services, 879 F.2d 441, 444 (8th Cir. 1989).
When conducting its review, the Court employs a "scrutinizing analysis" that balances the supporting and contradictory evidence on the record. Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987). As noted, this requires more than a search for evidence that supports the Commissioner's decision. The Court must review the entire record and weigh all evidence that fairly detracts from the Commissioner's findings. Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989).
In determining whether there is substantial evidence to support the Commissioner's decision, the Court must consider:
1)the credibility findings made by the ALJ;
2)the plaintiff's vocational factors;
3)medical evidence from treating and consulting physicians;
4)the plaintiff's subjective complaints relating to exertional and non-exertional activities and impairments;
5)any corroboration by third parties of the plaintiff's impairments; and
6)the testimony of vocational experts that is based upon a proper hypothetical questions setting forth the plaintiff's impairment.Baker v. Secretary of Health and Human Services, 955 F.2d 552, 555 (8th Cir. 1992).
The substantial evidence standard "allows for the possibility of drawing two inconsistent conclusions, thus it embodies a zone of choice within which the [Commissioner] may decide to grant or deny benefits without being subject to reversal on appeal."Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994). In other words, while the Court may weigh evidence differently, it cannot reverse a Commissioner's decision if there is sufficient evidence in the record to support either outcome. Id. V. LEGAL DISCUSSION
Burck contends that there is not substantial evidence to support the ALJ's conclusion that Burck did not have a listed impairment. Burck also contends that the ALJ should not have discredited Dr. Killen's opinion regarding Burck's condition and Burck's subjective complaints of pain. Burck also contends that evidence from his new Social Security claim should be considered as part of this claim.
A. MEDICAL EVIDENCE
Burck's medical records reveal that he has a long history of back problems beginning in 1996 when he underwent a lumbar laminectomy. (Tr. 103). Burck returned to work after the surgury. (Tr. 102).
On February 21, 2002, Dr. Michael R. Moore, performed an interdisc electrothermal annuloplasty (IDET) on Burck. (Tr. 163-64). Burck reported that he was feeling much better on March 27, 2002. (Tr. 228). On April 10, 2002, physical therapist Allen Brossart reported that "[o]verall, the patient does report full recovery of lower extremity symptoms, 90% decrease in back pain. . . . Overall, the patient is doing very well in regards to return of lower back mobility." (Tr. 161). Burck told Brossart that he was sleeping well at that time. (Tr. 160). However, Brossart also noted that Burck was experiencing varying levels of pain from mild to severe. (Tr. 161). In a followup on May 2, 2002, Brossart reported that Burck was experiencing "a progressive decrease in back pain." (Tr. 158). In June of 2002, medical notes reveal that Burck reported about 50% improvement, stating he felt "significantly better." (Tr. 228). At that time, Burck had made several "long hauls" in his truck and had been able to work. (Tr. 228). On September 13, 2002, Burck returned for his six-month followup of his IDET. (Tr. 226). Burck's back pain had worsened over the previous four to six weeks, but he was not taking any pain medication. (Tr. 226). Medical notes from November 7, 2002, reveal that Burck had stopped going to physical therapy because he was too busy with work. (Tr. 225).
In November of 2002, Burck reported to Dr. Ron M. Knutson, complaining of back pain. (Tr. 102-103). Dr. Knutson reported that an MRI from September 2002 showed "small central and left paracentral disc protrusion at L4-5. Mild diffuse disc bulge at L3-4 and L5, S1 and findings consistent with an old left laminectomy at L5, S1." (Tr. 102-103). Dr. Knutson performed an epidural steroid injection. (Tr. 100). On November 11, 2002, Burck reported to physical therapist Lesley Jacobson. (Tr. 155). Jacobson noted that Burck was experiencing increased pain. (Tr. 155). Again, on December 9, 2002, Burck reported to Jacobson who wrote that Burck was feeling much better. (Tr. 153). Burck was able to sleep, had fed cattle, and sat on a tractor much of the weekend. (Tr. 153). On December 19, 2002, Dr. Moore wrote "I don't think [Burck] is able to pursue any useful type of work and I think it is unlikely he would be able to get back to truck driving after three level fusion." (Tr. 225). In January of 2002, Burck discussed the possibility of further surgery with Dr. Moore, and Dr. Charles S. Rothberg. (Tr. 224, 151-52). Both doctors agreed that surgery would be appropriate. (Tr. 224, 151-152).
Burck was hospitalized from February 25-March 1, 2003, and underwent a lumbar disc fusion. (Tr. 104, 112-18). In March of 2003, Burck had recurring back pain (Tr. 142, 178-79, 210-11), and two drainages were performed on Burck due to the development of bilateral fluid collections. (Tr. 175-77). On March 27, 2003, Burck rated his pain at only a three out of ten and stated that he was walking two miles per day. (Tr. 205). X-rays showed "excellent maintenance of alignment and position of grafts and implants." (Tr. 207). The doctor also noted that Burck was "feeling very good." (Tr. 207). Burck reported to Dr. Shelley A. Killen, on March 31, 2003, to whom he rated his pain at a six or seven out of ten, but claimed he was still walking nine blocks a day. (Tr. 133). Dr. Killen felt that it would be very difficult for Burck to return to his job as a truck driver and suggested that he begin to seek out "other types of work options." (Tr. 134).
On April 7, 2003, a State agency physician completed a physical residual functional capacity assessment of Burck. (Tr. 270). In that report, the physicians concluded that Burck could lift and/or carry 20 pounds occassionally, and 10 pounds frequently, stand and/or walk about 6 hours in an 8-hour workday, sit about 6 hours in an 8-hour workday, push and/or pull within his lifting capacity, climb, balance, stoop, kneel, crouch, and crawl occasionally, and had no manipulative or visual, communicative, or environmental limitations. (Tr. 271-74). The physicians noted that Burck should be capable or performing work related duties within 12 months of his surgery. (Tr. 275). One month later, on May 8, another State agency physician agreed with those findings. (Tr. 277).
On April 21, 2003, Burck was hospitalized for intoxication and depression. (Tr. 303). Burck was admitted to the hospital after he drank three/fourths of a bottle of tequila the previous evening. (Tr. 303). Burck rated his back pain at a two out of ten at that time. (Tr. 307). He was discharged the next day after the doctors concluded that he was not suicidal. (Tr. 303-304).
On May 9, 2003, the medical records reveal that Burck was experiencing an increase in symptoms. (Tr. 280). However, on June 4, 2003, Burck stated that he was satisfied with the surgery and that his pain level had improved. (Tr. 279). Burck complained about his lower right extremity, but Dr. Moore found 5/5 strength and noted he saw no problems on the MRI. (Tr. 279). On June 19, 2003, Dr. Killen noted that Burck's complaints were consistent with a chronic left L5 radiculopathy, but found that there was no evidence of an acute process. (Tr. 290). Notes from July 3, 2003, reveal that Burck was doing better despite his persistent pain. (Tr. 278).
On August 14, 2003, Dr. Killen completed a "Medical Source Statement of Ability to do Work-Related Activities" form. (Tr. 300-302). Dr. Killen found that Burck could lift or carry 10 pounds occasionally and less than 10 pounds frequently, stand and walk 2 hours out of an 8-hour work day, sit less than 6 hours in an 8-hour work day, was limited in his lower extremities for pushing and pulling, could occasionally climb or balance, and never kneel, crouch, or crawl. (Tr. 300-301).
B. SUBJECTIVE COMPLAINTS
It is well-established that courts generally afford great deference to the ALJ's credibility assessments when the ALJ has seriously considered, but for good reason expressly discredits, a claimant's subjective complaints, and those reasons are supported by substantial evidence on the record as a whole. See Haggard v. Apfel, 225 F.3d 969, 972 (8th Cir. 2000); Brockman v. Sullivan, 987 F.2d 1344, 1346 (8th Cir. 1993). As the Eighth Circuit has stated, "Our touchstone is that a claimant's credibility is primarily a matter for the ALJ to decide."Anderson v. Barnhart, 344 F.3d 809, 814 (8th Cir. 2003).
The Court is satisfied that the ALJ considered Burck's subjective complaints in accordance with the criteria outlined by the Eighth Circuit in Polaksi v. Heckler, 739 F.2d 1320. Applying these guidelines to the evidence, the ALJ concluded that Burck's testimony was not credible. Having carefully reviewed the record, the Court concludes that the ALJ's conclusion is supported by substantial evidence.
In Polaski v. Heckler, the Eight Circuit Court of Appeals stated the following with respect to themanner in which subjective pain complaints are to be analyzed:
A claimant has the burden of proving that the disability results from a medically determinable physical or mental impairment. . . . While the claimant has the burden of proving that the disability results from a medically determinable physical or mental impairment, direct medical evidence of the cause and effect relationship between the impairment and the degree of claimant's subjective complaints need not be produced. The adjudicator may not disregard a claimant's subjective complaints solely because the objective medical evidence does not fully support them.
The absence of an objective medical basis which supports the degree of severity of subjective complaints alleged is just one factor to be considered in evaluating the credibility of the testimony and complaints. The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant's prior work record, and observations by third parties and treating and examining physicians relating to such matters as:
1. the claimant's daily activities;
2. the duration, frequency and intensity of the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of medication; and
5. functional restrictions.
The adjudicator is not free to accept or reject the claimant's subjective complaints.739 F.2d at 1321-22
There is little doubt that Burck has suffered from chronic back problems since 1996. Nevertheless, the medical evidence indicates that Burck's physical condition was not as debilitating as he claimed. Nearly seven months after the alleged onset date Burck stated that he had gone on several "long hauls" in his truck and admitted he had been working. (Tr. 228). In November of 2002, Burck reported that he had stopped going to physical therapy because he was too busy working. (Tr. 225). More than one year after his onset date, in December of 2002, Burck reported to the doctor after having spent the weekend sitting on a tractor and feeding cattle. (Tr. 153). In March of 2003, Burck reported that he was walking up to two miles every day and was admittedly "feeling very good." (Tr. 205, 207).
The Court also recognizes that there is evidence to suggest that Burck was genuine regarding his complaints of pain at the administrative hearing. The Eighth Circuit has held that subjective pain complaints can be disregarded if the ALJ finds inconsistencies in the record as a whole. Zeiler v. Barnhart, 384 F.3d 932, 936 (8th Cir. 2004) (citing Johnson v. Chater, 108 F.3d 942, 947 (8th Cir. 1997)). A review of the ALJ's decision reveals that the ALJ properly considered the totality of the evidence in making his credibility determination. See Burns v. Sullivan, 888 F.2d 1218, 1219 (8th Cir. 1989). This Court must give deference to the credibility determinations made by the ALJ.
C. TREATING PHYSICIANS
Burck contends that the ALJ erroneously discounted portions of Dr. Killen's opinion. "The opinions of the claimant's treating physicians are entitled to controlling weight if they are supported by and not inconsistent with the substantial medical evidence in the record." Stormo v. Barnhart, 377 F.3d 801, 805 (8th Cir. 2004) (citing Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001)).
The ALJ's decision rejected Dr. Killen's "Medical Source Statement of Ability to do Work-Related Activities" report completed on August 16, 2003. (Tr. 16). The ALJ found the report unpersuasive because it was not supported by clinical findings or by Burck's own reports of his functioning. (Tr. 16). In particular, the ALJ listed examples such as Burck reporting that he was walking two miles a day and reporting his pain level at a three out of ten on March 27, 2003, and an MRI performed in May of 2003 revealing normal strength and no significant findings. (Tr. 205, 279-80). It is clear that the ALJ gave consideration to Dr. Killen's opinion, but concluded that the treating physician's opinion was not entirely consistent with the medical records or with Burck's own reports. Under Eighth Circuit case law, the ALJ was entitled to discount Dr. Killen's report.
D. VOCATIONAL EXPERT
Burck also contends that the hypothetical posed by the ALJ was "defective." It is well-established that "[t]estimony from a vocational expert is substantial evidence only when the testimony is based on a correctly phrased hypothetical question that captures the concrete consequences of a claimant's deficiencies."Taylor v. Chater, 118 F.3d 1274, 1278 (8th Cir. 1997). "However, the ALJ is not required to include every physiological impairment suggested by the evidence. Rather, the hypothetical is sufficient if it sets forth the impairments which are accepted as true by the ALJ." Roberts v. Heckler, 783 F.2d 110, 112 (8th Cir. 1985).
During the hearing, the ALJ posed the following hypothetical question to vocational expert Warren Haagenson:
Let's assume an individual the same age and educational background as the Claimant limited to an exertional level of full range of sedentary with a sit, stand option. No squatting, kneeling, crawling, or climbing, occasional bending. No moving machinery, no unprotected heights, no foot or leg controls. Would an individual with these limitations be able to do the past work of the Claimant?
. . .
Would there other jobs that would be compatible with these limitations?
(Tr. 340). Haagenson concluded that an individual with those limitations could perform sedentary work, including such jobs as food and beverage order clerks, charge account clerks, and some small parts and bench assembly type occupations. (Tr. 341).
It is apparent from the ALJ's decision that the impairments included in the hypothetical were impairments that the ALJ accepted as being true based on the entire record. There is substantial evidence in the record to support the impairments included in the hypothetical. Accordingly, the Court finds that the hypothetical question posed by the ALJ was not defective.
E. SENTENCE-SIX REMAND
Burck has submitted new and additional evidence for the Court to consider. This evidence was not before either the ALJ or the Appeals Council. Burck requests that his claim be remanded back to the Commissioner so that this evidence may be considered. The Eighth Circuit has cautioned that the role of the Court is to "determine whether there exists substantial evidence on the record viewed as a whole to support the Secretary's decision, not to receive additional evidence and try the issues de novo."Williams v. Bowen, 790 F.2d 713, 715 (8th Cir. 1986). However, sentence six of 42 U.S.C. § 405(g) provides that the Court may order that additional evidence be taken before the Commissioner, "but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding."See 42 U.S.C. § 405(g). Material evidence has been defined as "non-cumulative, relevant, and probative of the claimant's condition for the time period for which benefits were denied, and there must be a reasonable likelihood that it would have changed the [Commissioners] determination." Krogmeier v. Barnhart, 294 F.3d 1019, 1025 (8th Cir. 2002).
In this case the relevant time period is from November 20, 2001 (Burck's alleged onset date), through February 23, 2004 (the date of the ALJ's decision). See Rehder v. Apfel, 205 F.3d 1056, 1061 (8th Cir. 2000). Burck submitted medical records from a January 6, 2004, follow-up visit with Dr. Killen. Burck was in a significant amount of pain and was "back to using a single point cane." Dr. Killen noted that Burck's gait was antalgic, and further noted that all Burck's movements were fairly antalgic. Burck also "remain[ed] tender over the left SI joint." Although Burck had no new complaints, Dr. Killen wrote that Burck was still "extremely disabled." The Court is justified in remanding the matter for further consideration in light of the new and material evidence obtained relative to Burck's new application. 42 U.S.C. § 405(g). The medical records from January 6, 2004, were not submitted to the ALJ because they were obtained by the Social Security Administration in the course of its investigation of Burck's new application for disability benefits which was filed on March 19, 2004. The new evidence arguably offers support for Burck's contentions concerning the disabling nature of his chronic back problems. The fact that such evidence did not exist at the time the ALJ ruled serves as a sufficient excuse for failure to include it in the record of the administrative hearing. Goad v. Shalala, 7 F.3d 1397, 1398 (8th Cir. 1993).
Burck filed a new application for disability benefits on March 19, 2004, alleging an onset date for his disability of February 23, 2004. This was the date of the ALJ's decision. The application was initially denied but disability benefits were later awarded after reconsideration. Burck was found to be disabled as of February 24, 2004, and awarded benefits beginning in August 2004. Thus, the question is not whether Burck is presently disabled but rather how long he has been disabled.
The Court will remand the matter to the Social Security Administration to reconsider the evidence of record and, specifically, to consider the medical records of Dr. Killen from January 6, 2004.
VI. CONCLUSION
The Court finds it necessary to remand the matter to the ALJ to consider the new evidence from the medical records of January 6, 2004, under sentence six of 42 U.S.C. § 405(g); see Buckner v. Apfel, 213 F.3d 1006, 1010 (8th Cir. 2000). The Court finds that such a remand is warranted because the new evidence is material, and there exists good cause for failing to incorporate the evidence into the record at the prior proceeding. The Court respectfully requests that Burck's new evidence be taken before the Commissioner as soon as reasonably possible.
IT IS SO ORDERED.