Opinion
Civil No. 01-780 ADM/RLE
April 9, 2002
Ethel Schaen, Esq., St. Paul, MN, on behalf of Plaintiff.
Lonnie F. Bryan, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge pursuant to Plaintiff Teresa Fedje's ("Plaintiff") Objections [Doc. No. 15] to the January 24, 2002, Report and Recommendation ("RR") [Doc. No. 14] of Magistrate Judge Raymond L. Erickson. The RR recommended that Plaintiff's Motion for Summary Judgment [Doc. No. 6] be denied and Defendant JoAnne B. Barnhart's ("Defendant") Motion for Summary Judgment [Doc. No. 11] be granted. For the reasons set forth below, the RR is adopted. The factual background for this matter is clearly set forth in the RR and is incorporated by reference for purposes of Plaintiff's Objections.
II. DISCUSSION
A district court must make an independent, de novo evaluation of those portions of an RR to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); D. Minn. LR 72.1(c)(2). When reviewing a denial of benefits, the Commissioner of Social Security's ("Commissioner") final decision must be upheld if it is supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g); Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999); Whitehouse v. Sullivan, 949 F.2d 1005, 1006 (8th Cir. 1991). Substantial evidence is that which a reasonable mind might accept as adequate to support the Commissioner's conclusion. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000). In assessing the substantiality of the evidence, a court must consider evidence that detracts from the Commissioner's decision as well as evidence that supports it. See Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993); Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992); Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984). This 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." Turley v. Sullivan, 939 F.2d 524, 528 (8th Cir. 1991) (citing Bland v. Bowen, 861 F.2d 533, 535 (8th Cir. 1988)). A court may not reverse the Commissioner's decision "merely because substantial evidence would have supported an opposite decision." Baker, 730 F.2d at 1150. Rather, if it is possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, then the Commissioner's decision must be affirmed. Young, 221 F.3d at 1068 (citing Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995) (quoting Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992)).
Plaintiff objects to three portions of the RR. First, she objects to the holding that the Administrative Law Judge ("ALJ") properly analyzed the facts in accordance with the requirements of Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984). Second, she objects to the holding that the ALJ properly considered and discounted the opinion of Plaintiff's treating physician. Third, she disputes the holding that "alertness" is a transferable skill.
A. Objection to ALJ's Discrediting of Plaintiff's Subjective Complaints Under Polaski
Credibility determinations are generally within the discretion of the ALJ. Driggens v. Bowen, 791 F.2d 121, 125 n. 2 (8th Cir. 1986) (citing Smith v. Heckler, 760 F.2d 184, 187 (8th Cir. 1985)); Underwood v. Bowen, 807 F.2d 141, 143 (8th Cir. 1986). However, the ALJ can not discredit Plaintiff's testimony "solely because objective medical evidence does not fully support [it]." Polaski, 739 F.2d at 1322. Polaski requires the ALJ to give consideration to all the evidence presented relating to Plaintiff's subjective complaints, including her 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.
Id. On review, the ALJ's credibility determination must be supported by substantial evidence on the record as a whole. Miller v. Shalala, 8 F.3d 611, 613 (8th Cir. 1993).
Plaintiff challenges the ALJ's Polaski analysis on four grounds. First, insufficient consideration was given to Plaintiff's work history. Second, the ALJ failed to specify his reasons for rejecting the testimony of Plaintiff's husband, a third party observer. Third, the side effects of Plaintiff's medications were improperly evaluated. Fourth, the "medical source statements" were incorrectly analyzed.
1. Plaintiff's work history
Plaintiff alleges that "absolutely no consideration" was given to what she refers to as her "very solid work history." Pl. Obj. at 2. "A claimant with a good work record is entitled to substantial credibility when claiming an inability to work because of disability." Nunn v. Heckler, 732 F.2d 645, 648 (8th Cir. 1984) (quoting Rivera v. Schweiker, 717 F.2d 719, 725 (2nd Cir. 1983)). The record reveals that the ALJ did give consideration to Plaintiff's work history. In fact, the ALJ specifically questioned Plaintiff about her employment and the reasons for her termination. Tr. at 51-54. Plaintiff has worked consistently since 1991, with the exception of 1995 when she did not work for the entire year. Id. While the ALJ addressed Plaintiff's work history, its effect on the assessment of Plaintiff's credibility is unstated. Silence on this issue does not require reversal of the ALJ's decision if other substantial evidence on the record supports the ALJ's decision.
Moreover, Plaintiff's subjective complaints of an inability to work are inconsistent with her employment record. Plaintiff's failure to work in 1995 was not due to a disability, but was the result of her employer closing its business. Tr. at 31. Also, Plaintiff worked after her insured status expiration date. Id. Therefore, substantial evidence in the record supports the ALJ's discrediting of Plaintiff's subjective complaints.
2. Third party observations
Plaintiff argues that the ALJ failed to specify why her husband's testimony was rejected and that this failure requires reversal. Plaintiff relies on Cline v. Chater, 82 F.3d 409 (4th Cir. 1996). However, Cline does not support this proposition. While the ALJ is to "specifically discuss each credibility decision made," the failure of an ALJ to do so does not necessarily require reversal or remand. Robinson, 956 F.2d at 840. Here, the ALJ discussed the testimony of Plaintiff's husband and concluded that his testimony mirrored Plaintiff's subjective complaints. Tr. at 31. Because the testimony of Plaintiff's was essentially that of Plaintiff's, the evidence that the ALJ relied on in discrediting Plaintiff's testimony would apply to her husband's testimony as well. The failure of the ALJ to give specific reasons for the discrediting of Plaintiff's husband is inconsequential. Young, 221 F.3d at 1068 (citing Lorenzen v. Chater, 71 F.3d 316, 319 (8th Cir. 1995) (stating that failure of ALJ to specifically discredit witness has no bearing on the outcome when witnesses testimony is discredited by same evidence that proves claimant's testimony is not credible)).
Cline involves an objection to a vocational expert hypothetical question and does not address assessing the credibility of third party observations.
3. Side effects of Plaintiff's medication
Plaintiff argues the ALJ and Magistrate Judge improperly evaluated the side effects of her medication and that the opinion of Dr. Mark T. Sprangers, M.D., one of Plaintiff's treating physicians, should control. Dr. Sprangers stated that Plantiff had "significant cognitive dysfunction" due to her medication. Tr. at 538. Plaintiff also argues the ALJ failed to address the effect that nightly use of Vicodin may have on her daytime activities.
Substantial evidence in the record supports the ALJ's analysis of the side effects of Plaintiff's medication. The record reveals that Plaintiff heavily used Vicodin and only minimally used other pain, sleep and depression medication. Plaintiff testified that the only side effects from her medication were grogginess and sleeplessness. Tr. at 30, 51, 63, 537. The ALJ credited Plaintiff's testimony as to the side effects of her medication and provided safety precaution limitations accordingly. Tr. at 27. The ALJ concluded because of Vicodin's side effects, specifically grogginess, Plaintiff should not work at heights or near hazardous machinery.
Vicodin is a tablet containing "[h]ydrocodone bitartrate and acetaminophen" that is "indicated for the relief of moderate to moderately severe pain." Physician's Desk Reference, p. 1629-30 (55th Ed. 2001).
Furthermore, the record reveals Dr. Sprangers was concerned with Plaintiff's overuse of Vicodin. On at least one occasion, Plaintiff requested an early refill of her Vicodin because she had used 70 tablets in 30 days despite being prescribed only two tablets a day. Tr. at 474. Dr. Sprangers refilled her prescription but warned Plaintiff that he would not refill it again before the specified refill date. Id. In addition, Dr. Ensor E. Transfeldt, M.D., the physician who performed Plaintiff's anterior cervical disectomy and fusion, and Dr. Elizabeth A. Arendt, M.D., an orthopedist whom Plaintiff was referred to by Dr. Sprangers for a knee injury, both expressed concern about Plaintiff's use of Vicodin. Tr. at 478, 498, 514. Dr. Transfeldt noted in 1998 that Plaintiff was "back to taking five Vicodin a day" and recommended that Plaintiff be weaned from Vicodin. Tr. at 498. In 1999, Dr. Transfeldt again expressed his concern with Plaintiff's use of "large amounts of narcotics" and opined that Plaintiff was likely becoming dependent on such drugs. Tr. at 510. The inference may be drawn from Plaintiff's overuse of Vicodin is that she was not using it in accordance with her prescription, that she may have been abusing it, and that she was likely becoming addicted to it. Plaintiff's side effects from her medication were properly analyzed by the ALJ under the Polaski criteria.
4. "Medical source statements"
Plaintiff argues that in deciding to accept the testimony of the medical expert ("ME"), Dr. Andrew M. Steiner, the ALJ failed to consider Plaintiff's treating physicians. The ALJ accepted the opinion of Dr. Steiner in its entirety because Dr. Steiner was the only doctor with access to Plaintiff's entire medical history as well as the testimony of Plaintiff and her husband. Tr. at 30. However, the ALJ did not solely rely on the testimony of Dr. Steiner, despite Plaintiff's argument to the contrary. Rather, the ALJ also accepted the majority of Dr. Sprangers' opinion, rejecting only that portion that was rendered a year and a half after Plaintiff's insured status expired and which was inconsistent with Dr. Sprangers' earlier opinion. Id. The ALJ therefore properly analyzed the inconsistencies in Dr. Sprangers' testimony and had no reason to discredit the testimony of Dr. Steiner.
Plaintiff also argues that the ALJ failed to address why the medical opinions of Dr. Elizabeth A. Arendt and Dr. Matthew Monsein, M.D., Director of the Chronic Pain Program at the Sister Kenny Institute, were not taken in to account. Dr. Arendt only briefly treated Plaintiff for a knee injury. Thomas v. Sullivan, 928 F.2d 255, 259 n. 3 (8th Cir. 1991) (expressing doubt that a doctor should be considered treating physician when they treat claimant for a different injury than the injury alleged to cause disability). Dr. Monsein only saw Plaintiff once for her depression and to evaluate whether Plaintiff needed to be weaned from her pain medication. Morse v. Shalala, 16 F.3d 865, 872 (8th Cir. 1994) (citing Hancock v. Secretary of the Dep't of Health, Educ. and Welfare, 603 F.2d 739, 740 (8th Cir. 1979) (expressing rule that a report of a consulting physician who only briefly treated claimant on one occasion does not constitute substantial evidence)). Due to this brief contact, lack of treatment for injury allegedly causing disability, and lack of access to Plaintiff's entire medical history, the opinions of Drs. Arendt and Monsein are not significant.
Other substantial evidence on the record further supports the ALJ's decision that the Plaintiff's subjective complaints were not credible. Specifically, there are inconsistencies in the record casting doubt on Plaintiff's credibility. Stephens v. Shalala, 46 F.3d 37, 39 (8th Cir. 1995) ("Where there are inconsistencies in the evidence as a whole, the [Commissioner] may discount subjective complaints."). Furthermore, questions of fact, such as the credibility of a claimant's subjective complaints, are primarily for the Commissioner to decide, not the courts. Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987).
A claimant's failure to seek aggressive medical care is not suggestive of disabling pain. Chamberlan v. Shalala, 47 F.3d 1489, 1495 (8th Cir. 1995) (citing Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994); Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988)). The ALJ found that the objective medical evidence revealed Plaintiff had a significant range of motion deficit in her neck and upper thoracic region, but that it was not significantly persistent and therefore did not corroborate Plaintiff's allegation that she could not sit or stand for extended periods. Tr. at 28. The medical evidence also revealed that much of Plaintiff's treatment was conservative. Id. She was not hospitalized for her pain and she was not referred to a pain clinic until eighteen months after her insured status expired. Id. Plaintiff was mostly treated with oral medication and did not have consistent or significant physical or occupational therapy, chiropractic treatment, trigger point injections or nerve blocks. Id. The ALJ also noted that Plaintiff had significant gaps in her treatment, between October, 1996, and June, 1997, and between November, 1997, and July, 1998. Id. This supports the ALJ's conclusion that the medical evidence does not indicate the degree of debilitation Plaintiff alleged, and is therefore inconsistent with Plaintiff's testimony.
An ALJ may also discredit Plaintiff's subjective complaints that are inconsistent with daily activities. Lawrence v. Chater, 107 F.3d 674, 676-77 (8th Cir. 1997) (citing Clark v. Chater, 75 F.3d 414, 417 (8th Cir. 1996)). Daily activities inconsistent with a disabling condition include cleaning one's house, cooking and grocery shopping. Spradling v. Chater, 126 F.3d 1072, 1075 (8th Cir. 1997); Johnson v. Chater, 87 F.3d 1015, 1018 (8th Cir. 1996); Chamberlain, 47 F.3d at 1494-95. The ALJ addressed Plaintiff's daily activities and determined that these activities were "regular and recurrent" and evidenced "significant functional capabilities which [were] generally consistent with the RFC." Tr. at 30. Plaintiff's daily activities include cooking, loading and unloading the dishwasher, putting laundry into the machines and watching television. Tr. at 57. Although Plaintiff's daily activities are limited by her injury, the fact that she can still cook, do laundry, assist in grocery shopping, maintain a social life and attend church is inconsistent with her subjective complaints of an inability to work. Onstead v. Sullivan, 962 F.2d 803, 805 (8th Cir. 1992) (holding that claimant's daily activities of light housekeeping, cooking, watching television and reading were consistent with the Secretary's finding that the claimant could perform light work).
Based on the foregoing, substantial evidence in the record supports the ALJ's discrediting of Plaintiff's subjective complaints.
B. Objection to Opinion of Plaintiff's Treating Physician
The Eighth Circuit has repeatedly held that the treating physician's opinion should be given great weight. Morse, 16 F.3d at 872 (citing Thompson v. Sullivan, 957 F.2d 611, 614 (8th Cir. 1992)); Henderson v. Sullivan, 930 F.2d 19, 21 (8th Cir. 1991); Hancock, 603 F.2d at 740). However, "such an opinion is not conclusive and must be supported by medically acceptable clinical or diagnostic data." Wilson v. Chater, 76 F.3d 238, 241 (8th Cir. 1996). A treating physician's opinion "does not automatically control, since the record must be evaluated as a whole." Bentley v. Shalala, 52 F.3d 784, 786 (8th Cir. 1995). Before discrediting an opinion of a treating physician, the ALJ must consider the following factors in 20 C.F.R. § 416.927: (1) the length of the treatment relationship; (2) the nature and extend of the treatment relationship; (3) the quantity of evidence in support of the opinion; (4) the consistency of the opinion with the record as a whole; and (5) whether the treating physician is also a specialist.
Plaintiff argues that Dr. Sprangers' opinion should have been given controlling weight rather than Dr. Steiner's opinion. While Dr. Sprangers has treated Plaintiff for a significant period of time and he clearly meets the standard for treating physician status enumerated in 20 C.F.R. § 416.927(d)(2), the record must be evaluated as a whole. Plaintiff alleges that the same reason the ALJ rejected a portion of Dr. Sprangers' opinion should apply to reject Dr. Steiner's opinion. The ALJ rejected Dr. Sprangers' opinion of Plaintiff's inability to work because this opinion was rendered eighteen months after Plaintiff's insured status expired. Tr. at 30-31. It was also inconsistent with an earlier opinion by Dr. Sprangers of Plaintiff's ability to work with limitations. Id. Plaintiff appears to contend that if Dr. Sprangers' 1999 opinion that Plaintiff is unable to sustain gainful employment is rejected because it postdates Plaintiff's insured status expiration, then Dr. Steiner's opinion should similarly be rejected because it not only postdated the relevant period of disability, but it was given well after the rejected opinion of Dr. Sprangers. Pl. Obj. at 5.
Plaintiff is misinterpreting the ALJ and Magistrate Judge's analysis. Dr. Sprangers' later opinion was not rejected solely because it was given after Plaintiff's insured status expired, but because it was inconsistent with the opinion that Dr. Sprangers gave only three months prior to the expiration of Plaintiff's insured status. Tr. at 30-31. The ALJ compared two inconsistent opinions given by Dr. Sprangers and chose to accept the earlier opinion that Plaintiff could work in a limited capacity because this opinion was rendered closer to the expiration of Plaintiff's insured status, was consistent with Dr. Steiner's opinion, was supported by objective medical evidence and was consistent with Plaintiff's employment history. Johnson, 87 F.3d at 1018 ("Where a treating physician's opinion is itself inconsistent, it should be accorded less deference."). The ALJ gave substantial credibility to the majority of Dr. Sprangers' opinion and discounted only that portion which was inconsistent with the record as a whole.
C. Objection to "Alertness" as a Transferable Skill
Plaintiff argues that "alertness" is not a transferable skill, but rather is only an aptitude or ability. Because the ALJ found Plaintiff's Residual Functional Capacity ("RFC") to be between light work and sedentary work, the Medical Vocational Guidelines ("Grids") can not be used to direct whether Plaintiff is disabled. Heckler v. Campbell, 461 U.S. 458 (1983); Haynes v. Heckler, 716 F.2d 483, 485 (8th Cir. 1983) (holding that the ALJ committed error by relying on the Grids to determine that the claimant was not disabled rather than vocational testimony where the Grids did not encompass the claimant's alleged disability). Instead, the ALJ is to "produce expert vocational testimony to meet [the Commissioner's] burden of showing that jobs are available in the national economy for a person with the claimant's characteristics." Id. If the ALJ had, on the other hand, found that Plaintiff could only perform sedentary work, then, and only then, is Plaintiff's disability determination dependent on whether she has transferable skills under the Grids. Id.
The ALJ properly relied on vocational testimony produced in finding that there were jobs that Plaintiff could perform in the national economy. The Magistrate Judge, after finding no error in the ALJ's analysis, opined that, assuming arguendo that Plaintiff could only perform sedentary work, Plaintiff would still not be disabled under the Grids because she has the transferable skill of "alertness." Tr. at 236. Vocational testimony is to be used, rather than the Grids, when a Plaintiff's RFC or alleged disability is not defined under the Grids. The application of the Grids by the Magistrate Judge, even if it was incorrect, does not affect the ALJ's finding that Plaintiff is capable of working. Rather, the "credible, persuasive and uncontradicted" vocational testimony satisfies the Commissioner's burden of establishing that there are jobs in the national economy that Plaintiff is capable of performing. The ALJ's determination is supported by substantial evidence on the record as a whole.
III. CONCLUSION
Based upon the foregoing, and upon independent review of all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. The RR [Doc. No. 14] is ADOPTED,
2. Plaintiff's Objections [Doc. No. 15] are DENIED,
3. Plaintiff's Motion for Summary Judgment [Doc. No. 6] is DENIED, and
4. Defendant's Motion for Summary Judgment [Doc. No. 11] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.