Opinion
No. C 97-3111-MWB
April 20, 1999.
REPORT AND RECOMMENDATION
I. INTRODUCTION
The plaintiff appeals the administrative law judge's ("ALJ") denial of Title II disability insurance ("DI") benefits raising six issues: (1) that the ALJ erred in finding that Henderson was not presumptively disabled, (2) that the ALJ failed to properly credit Henderson's subjective pain complaints, (3) that the ALJ erred by failing to apply the medical-vocational guidelines, (4) that even when the grids were not applied, the ALJ erred in assessing Henderson's residual functional capacity, (5) that the ALJ posed an inaccurate and incomplete hypothetical to the vocational expert, and (6) that the Appeals Council failed to properly review both the ALJ's decision and the post-hearing brief submitted by the plaintiff. As a consequence, the plaintiff claims that he is entitled to an award of DI and SSI benefits, or, in the alternative, a remand of his case for rehearing.
20 C.F.R. § 404, Subpart P, App. 2.
II. PROCEDURAL AND FACTUAL BACKGROUND A. Procedural Background
Plaintiff Michael E. Henderson filed for DI benefits on March 27, 1995, alleging an inability to work since September 6, 1993. (R. at 62-65.) These applications were denied initially on June 7, 1995, (R. at 88-91), and denied upon reconsideration on August 3, 1995. (R. at 96-98.) On June 27, 1996, ALJ Thomas M. Donahue held a hearing on the applications. (R. at 43-60.) Attorney Kyle Groves represented the plaintiff. Henderson and a vocational expert, Jack Reynolds, presented testimony.
On November 25, 1996, the ALJ ruled that Henderson was not entitled to DI benefits. (R. at 12-27.) The Appeals Council of the Social Security Administration denied Henderson's request for review on September 24, 1997, thus making the ALJ's decision the final decision of the Commissioner. (R. at 4-5.) Henderson then filed a timely complaint on November 18, 1997, seeking judicial review of the ALJ's ruling (Doc. No. 1). Subsequently, on November 17, 1998, by order of the Honorable Mark W. Bennett, this matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) for the filing of a report and recommendation as to its disposition (Docket No. 25). The court turns now to a review of Henderson's application for benefits pursuant to 42 U.S.C. § 405(g).
B. Factual Background Introductory facts and plaintiff's daily activities
Henderson was forty-nine years old at the time of the hearing and had a twelfth grade education. (R. at 57.) His past relevant work is as a semi-truck driver. (R. at 57, 120, 373.) Henderson alleges that he is disabled due to ruptured discs in his back, heart problems, seizures, and hypoglycemia. (R. at 116.)
As part of his application for DI benefits, Henderson completed several written statements about his daily activities. In a Disability Report completed on March 27, 1995, Henderson stated that he was able to cook, clean, and shop. (R. at 119.) He also that these activities were limited and that his son helps him. Id Before his alleged disability onset date, Henderson used to hunt and fish, but now he reads, watches television, and does puzzles. Id. He visits his friends and neighbors, and also drives a car once per week. Id. A representative from the Social Security Administration noted that Henderson "could not sit through" the one-hour interview and had to stand. (R. at 124.) Henderson also "walked slowly and slightly bent." Id.
Henderson completed a Supplemental Disability Report on April 3, 1995, which essentially corroborated the information given in the March 1995 Disability Report. Henderson added that his wife had left him and that she was seeking a divorce. (R. at 126.) His youngest son, who was sixteen years old, lived with him. Id. Henderson added that his chest and/or his back pain cause him trouble when sleeping. (R. at 127.)
At the hearing before the ALJ, Henderson elaborated on his daily activities. He usually wakes up at 8:00 a.m., makes a pot of coffee, and takes his medication. (R. at 54.) He then watches television for the rest of the morning. Id. Henderson again noted that he does his own grocery shopping, but informed the judge that his son "pretty well keeps the house." (R. at 54-55.)
Henderson also testified about the restrictions caused by his alleged disability. He can lift five to ten pounds, sit for twenty to thirty minutes, and stand for twenty to thirty minutes. (R. at 52.) At the time of the hearing, Henderson could walk about a mile a day, but he thought that once his doctor took him off protozone, the pain may be too much for him to walk that distance. (R. at 52-53.) He also noted that he cannot work in cold or hot environments. (R. at 53-54.)
Vocational expert's testimony
Vocational expert ("VE") Jack Reynolds testified at the hearing before the ALJ. (R. at 56-60.) The ALJ, explaining that all of the hypothetical questions were based on a claimant with Henderson's age, education, and work experience, asked the VE the following question:
. . . the ability to lift up to 20 pounds occasionally, 10 pounds frequently; sitting and standing up to 30 minute, 30 minutes each; can sit for 30 minutes, can stand for 30 minutes; the ability to alternate between those positions for a total of 6 of an 8 hour day for each sitting and standing; can walk up to a mile per day; only occasional climbing of ramps and stairs; never climbing ladders, ropes and scaffolds; only occasional imbalance in stooping, kneeling, crouching, crawling and bending; not working at heights or around dangerous equipment due to seizures; should avoid concentrated exposure to extremes of heat, cold and excessive humidity. Based on that first hypothetical, could the claimant do his past relevant work?
(R. at 57-58.) The VE testified that such a claimant could not perform his past relevant work, nor would he have transferable skills. (R. at 58.) However, the claimant would be able to perform jobs of an unskilled nature that the Social Security Administration defines as "light" or "sedentary," such as, a small parts bench assembler, a surveillance security monitor, and an arcade attendant. Id.
Henderson's attorney then asked the VE an alternative hypothetical. The attorney changed the lifting limitation to five pounds, the standing and sitting limitations to fifteen minutes for each activity, and added that the hypothetical claimant had Grand Mal seizures which occurred randomly. (R. at 59.) The VE responded that the hypothetical claimant would be unable to work under those conditions. Id. The ALJ re-examined the VE and asked if his response would change if the seizures only occurred at night. In response, the VE stated that the seizures "wouldn't impact on his ability to work, assuming the residuals from those seizures didn't interfere." Id.
Plaintiff's medical history
On April 2, 1994, Henderson was admitted to the Hamilton County Public Hospital with chest pains. (R. at 147.) J.X. Latella, D.O., noted that Henderson took Dilantin for seizures and was also being treated for hypoglycemia. Id. Dr. Latella found that Henderson had a myocardial infarction and decided to transfer him to Mercy Hospital Medical Center ("Mercy Hospital") in Des Moines, Iowa, for an angiogram. (R. at 149.)
Upon admission to Mercy Hospital on April 4, 1994, Robert Kraemer, D.O., completed a history and physical examination of Henderson. Dr. Kraemer thought that Henderson was having chest pain of cardiac origin and wanted to study him further. (R. at 191.) Henderson had an angiogram on April 5, 1994, which showed a "100 percent block of the proximal left anterior descending." (R. at 185.) After Dr. Kraemer unsuccessfully attempted to wire the vessel, he had a stress test performed on Henderson. Id. The stress test showed "considerable ischemia of the anteroseptal area." Id. Dr. Kraemer then sought surgical consultation which resulted in a recommendation that Henderson be revascularized, i.e. bypass surgery. Id. Mark Strom, M.D., successfully performed the revascularization on April 11, 1994. Id. Post-operatively, Henderson did well except for the development of a left pleural effusion. Id. His doctors, however, felt that it was safe to send him home and discharged him on April 15, 1994. (R. at 184.)
While in Mercy Hospital, a neurologist, Steven R. Adelman, D.O., performed a neurological evaluation on Henderson for his seizures. While Henderson has experienced seizures since he was in his early thirties, he was not placed on medication until approximately 1984. (R. at 179.) Henderson told Dr. Adelman that his seizures occur both during the day and at night, but that he had not had a daytime seizure for more than ten years. Id. Dr. Adelman decided to switch Henderson's seizure medication from Dilantin to Tegretol. (R. at 178.)
Henderson also completed a Seizure Disorder. In the undated questionnaire, Henderson noted that his seizures usually happen at night while he is sleeping. (R. at 125.) The day after a seizure, Henderson usually has a "tremendous headache," and needs to rest for half a day to get rid of it. Id. At the hearing, Henderson testified that after switching medications, he has seizures less often. (R. at 50.) When he does have them, however, they usually occur at night, and they cause him to "turn stiff as a board." Id.
After his bypass surgery, Henderson saw his treating physician, Dr. Latella frequently. Henderson's physical condition generally improved, and by May 31, 1994, he was walking up to two miles per day. (R. at 348.) Henderson continued to make good progress until November 1994, when he saw Dr. Latella for complaints of back pain. (R. at 349.) Dr. Latella diagnosed the pain as sciatic neuralgia and ordered x-rays. Id. While the x-rays showed only mild degenerative changes of the lumbar spine, (R. at 307), Henderson continued to complain of back pain through the date of the hearing, June 1996.
From November 1994 through the date of the hearing, June 1996, Henderson continued to see Dr. Latella about his back pain complaints. In November 1994 and January 1995, Henderson had an epidural cortisone injection. (R. at 350, 352.) Henderson also received intophoresis treatments and two MRIs during this time period. (R. at 350-52.) The first MRI, in December 1994, showed bulging discs, (R. at 350), while the second MRI, in January 1995, showed a ruptured disc.
Referred by Dr. Latella, Henderson saw Joshua D. Kimelman, D.O., on December 13, 1994. Dr. Kimelman reported that Henderson was in "obvious discomfort," walked with an "antalgic gait," and rated his pain as a five on a scale of zero to ten. (R. at 280.) Finding Henderson had right S1 radiculopathy, but no disc herniation or impingement, Dr. Latella recommended a Medrol Dosepak, restricted activity, and no work for one month. (R. at 280, 350.)
Henderson saw Dr. Kimelman for a follow-up visit on January 10, 1995. Dr. Kimelman reported that Henderson again walked cautiously and with an antalgic gait, and that his pain continued to be about a five or six on a zero to ten scale. (R. at 281.) This time, Dr. Kimelman's impression of Henderson's condition was degenerative disc disease. Id. He referred Henderson to physical therapy and switched him from the Medrol Dosepak to Naprosyn and Flexeril. Id. Additionally, Dr. Kimelman limited Henderson to sedentary type work. Id.
Dr. Latella, on January 24, 1995, admitted Henderson to the Hamilton County Public Hospital. Henderson could not walk, sit, or stand, and Dr. Latella determined that he had ruptured discs at L4-5, and bulging discs at L3-4. (R. at 268.) Dr. Latella, in "trying to save [Henderson] from an operative procedure," felt that taking him off his feet for a few days would make the pain subside. Id. However, only treatments with hotpacks and ultrasound made Henderson's pain subside. Id. Dr. Latella discharged Henderson on January 26, 1995, giving him a prescription for Toradol for his pain. Id.
On February 14, 1995, Henderson returned to Dr. Kimelman. Since his previous visit with Dr. Kimelman, Henderson had another MRI which showed a "disc herniation at 4/5 with nerve root impingement eccentrically to the right." (R. at 282.) Henderson continued to complain of back pain that radiated down to his right leg, especially after any type of physical activity. Id. Dr. Kimelman noted that Henderson had already had two epidural steroid injections, had been on anti-inflammatory medications, and had appropriate treatment for two months, yet he continued to be symptomatic. Id. Since Henderson was reluctant to consider surgery, Dr. Kimelman recommended that Henderson be off work, but that he be considered for Vocational Rehabilitation. Id.
From February through June 1996, Henderson continued to see Dr. Latella. Henderson's back pain showed some improvement in February 1995, but by April it had again gotten worse. (R. at 353-54.) Furthermore, he began feeling chest pain in March 1995. (R. at 354.) On March 23, 1995, Henderson reported that he was doing physical therapy exercises, but they hurt his back. Id. Dr. Latella recommended continued therapy and vocational rehabilitation.
The Disability Determination Services referred Henderson to David P. Johnson, Ph.D., for an assessment of his level of memory functioning on May, 10, 1995. Henderson told Dr. Johnson that he was having problems with his short-term memory. (R. at 358.) Dr. Johnson found that Henderson functioned at the low-average to borderline range of general memory ability, and that he functioned at the borderline to average range with respect to various more specific memory abilities. (R. at 359.) Because he was unsure if Henderson gave "his best effort at all times" of the evaluation, Dr. Johnson thought the results "may underestimate somewhat his true level of ability." Id. Dr. Johnson concluded that Henderson would be mildly to moderately limited . . . in his ability to remember and understand instructions, procedures, and locations, to carry out instructions, maintain attention, concentration, and pace, to interact appropriately with supervisors, coworkers, and the public, and to use good judgment and to respond appropriately to changes in the work place. Id.
On May 8, 1996, Henderson saw Samir Wahby, M.D., who scheduled him for another MRI. (R. at 376.) Dr. Wahby found only bulging discs, as opposed to the herniated discs shown in the previous MRI, and decided not to operate. (R. at 375, 377.) However, in notes from a visit to Dr. Latella on June 24, 1996, Henderson's diagnosis is "[c]ardiac arrythmia; ruptured disc." (R. at 375.) Also at this time, Dr. Latella continued Henderson on Flexeril, but decreased his prescription for steroids. Id.
The ALJ's conclusions
The ALJ followed the steps set out in the Social Security Administration's Regulations for evaluating disabilities. See 20 C.F.R. § 404.1520(a) (1999). He determined that Henderson had not engaged in substantial gainful activity since September 6, 1993. (R. at 24.) Although he found that the medical evidence established that Henderson's combination of impairments, including severe degenerative disc disease, artherosclerosis, status post cardia bypass surgery, hypertension, and a seizure disorder were severe, he nonetheless found that Henderson did not have an impairment or combination of impairments equal to those listed in Appendix 1, Subpart P, Regulations No. 4. (R. at 25.) Relying on the testimony of the VE, the ALJ then determined that Henderson could not return to his past relevant work, but that he did have the residual functional capacity to be able to perform other work which existed in significant numbers in the national economy, such as a bench assembler, surveillance security monitor, or arcade attendant. (R. at 25-26.)
III. ANALYSIS A. Standard of Review
Governing precedent in the Eighth Circuit requires this court to affirm the ALJ's findings, provided they are supported by substantial evidence in the record as a whole. 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 requires "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401, 91 S. Ct. at 1427; accord Ellison, 921 F.2d at 818.
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)). 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 he 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, 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 his age, education, or work experience. Fourth, the Commissioner must examine whether the claimant retains the residual functional capacity to perform his past relevant work. Finally, if the claimant demonstrates that he is unable to perform his past relevant work, the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform, given his 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)).
C. Review of the ALJ's Decision 1. Whether Henderson is presumptively disabled
Henderson argues that the ALJ erred at Step Three of the sequential analysis when he decided that Henderson's impairments did not meet or equal the presumptively disabling impairment for "Disorders of the Spine" listed at section 1.05(C) in the regulations. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.05(C). The Step 3 determination is based on medical evidence. Ingram v. Chater, 107 F.3d 598, 602 (8th Cir. 1997); 20 C.F.R. § 404.1526(b), 416.926(b). "For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria." Marciniak v. Shalala, 49 F.3d 1350, 1353, (8th Cir. 1995) (quoting Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 891, 107 L.Ed.2d 967 (1990)). Thus, for Henderson to be presumptively disabled under "Disorders of the Spine" impairment listed at section 1.05(C), the medical evidence must show that he meets the following criteria:
C. 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 limitation of motion in the spine; and
2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.05(C).
The medical record shows that Henderson meets some, but not all, of the medical criteria listed in section 1.05(C). The first mention of Henderson having a herniated nucleus pulposus comes from a diagnosis by Dr. Latella in January 1995. That diagnosis is somewhat in question, though, because of a subsequent MRI performed in May 1996 which showed only bulging discs. From January 1995 through the date of the hearing, almost all of the medical records note Henderson's back pain, however, what is less frequent in the medical record is mention of muscle spasms or significant limitation of motion in the spine. Similarly, there is almost no mention of motor or reflex loss. Because Henderson does not meet all the specified medical criteria under section 1.05(C), the ALJ correctly found that he was not presumptively disabled.
Whether the ALJ properly credited Henderson's subjective pain complaints
Henderson contends that the ALJ erred when he found that Henderson's subjective pain complaints ("SPCs") were not fully credible and that his symptoms were not as limiting as he alleged. In analyzing a claimant's subjective complaints of pain, an ALJ must examine: (1) the claimant's daily activities; (2) the duration, frequency, and intensity of the pain; (3) dosage, effectiveness, and side effects of medication; (4) precipitating and aggravating factors; and (5) functional restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). The ALJ may also consider other relevant factors, including the claimant's relevant work history and the absence of objective medical evidence to support the complaints. See id.
An ALJ may not discredit pain allegations simply because there is a lack of objective evidence; instead, the ALJ may only discredit SPCs 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 at 1322)). Furthermore, "[w]hen rejecting a claimant's complaints of pain, the ALJ must make an express credibility determination, detailing reasons for discrediting the testimony, must set forth the inconsistencies, and must discuss the Polaski factors." Beckley v. Apfel, 152 F.3d 1056, 1060 (8th Cir. 1998).
When a plaintiff claims that the ALJ failed to properly consider subjective complaints of pain, the duty of the court is to ascertain whether the ALJ considered all of the evidence relevant to plaintiff's complaints of pain under the Polaski standards and whether the evidence so contradicts plaintiff's subjective complaints that the ALJ could discount his testimony as not credible. Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987). The court therefore turns to a review of the ALJ's decision, with regard to the Polaski factors, to determine if the decision rests on substantial evidence.
the claimant's daily activities
In his decision, the ALJ noted Henderson's daily activities. After rising at 8:00 a.m., Henderson usually drinks coffee, eats breakfast, and takes medicine. The rest of Henderson's day is filled with little else besides watching television. Although he can prepare meals and do some cleaning, Henderson's son does most of the housework. Henderson also stated that he visits friends and drives a car once per week. At the time of the hearing, Henderson could walk approximately a mile per day. That estimate, however, was predicated on his taking Protozone, a prescription medication that Henderson indicated his doctor would no be refilling.
The ALJ's decision does not mention whether Henderson's daily activities added to or detracted from the credibility of his SPCs, but based on this record, it seems that the daily activities and the SPCs are consistent. The ability of a claimant to do minimal activity does not necessarily indicate an ability to perform gainful employment. See Ricketts v. Secretary of HHS, 902 F.2d 661, 663 (8th Cir. 1990) (ability to do light housework does not necessarily indicate ability to perform gainful employment); Hight v. Shalala, 986 F.2d 1242, 1244 (8th Cir. 1993) (fact that claimant is not bedridden does not mean he is not disabled). Henderson's pre-hearing statements are in agreement with his testimony. The statements and testimony paint a picture of a man limited by pain to only the most basic activities. Thus, Henderson's daily activities support his SPCs.
THE DURATION, FREQUENCY, AND INTENSITY OF THE PAIN
The ALJ relies on an inconsistency related to this factor in supporting his decision to discredit Henderson's SPCs. Specifically, the ALJ found that Henderson's testimony about his periodic need to sit in a recliner to relieve his back pain was inconsistent with the record as a whole because none of Henderson's doctors noted such a need. Close inspection of the transcript and the record, however, belie the ALJ's finding.
The ALJ misconstrued Henderson's testimony regarding his use of a recliner to relieve his back pain. Henderson did not testify that he had a periodic need to sit in a recliner, but rather, Henderson testified that because he has difficulty sitting straight up, he finds relief in a recliner which he "tilt[s] . . . about three fourths of the way back. . . ." (R. at 49.) This statement is not at all inconsistent with the medical record noting the amount of pain Henderson suffers and the different positions in which the pain is diminished. For instance, Henderson told Dr. Kimelman at an examination on February 14, 1995, that "if he sits around and doesn't do anything, that it's not too bad and he can live with it . . . [b]ut when he's up and around and more active . . . he has more pain in the right leg." (R. at 282.) The difference between Henderson's testimony at the hearing and his statement to Dr. Kimelman is negligible. Both statements are consistent in that Henderson found relief from back pain by sitting in a chair, more specifically, by sitting in a reclined position.
Moreover, the record indicates that Henderson's complaints about the duration, frequency, and intensity of his pain also have been consistent. Evidence of Henderson's constant pattern of pain comes from the notes from examinations by his various doctors. The complaints, mostly involving his back and leg pain, show that from November 1994, Henderson has experienced back pain. Although he had infrequent and short-lived relief from a few courses of treatment, the pain always returned. This record, consistent with his SPCs, supports a finding of credibility.
The dosage, effectiveness, and side effects of medication
At the hearing, Henderson testified that after he takes one of his medications, cortisone, he feels like taking a nap. The ALJ noted that none of the doctors' records indicated that Henderson had any side effects from his medication. The ALJ therefore reasoned that this inconsistency weighed against Henderson's credibility.
While side effects are one aspect of this Polaski factor, dosage and effectiveness are also mentioned. A claimant's allegations of disabling pain may be discredited by evidence that the claimant has received minimum medical treatment and/or has taken only occasional pain medications. See Cline v. Sullivan, 939 F.2d 560, 564, 568 (8th Cir. 1991). This does not apply in Henderson's case. Henderson has made numerous visits to doctors, and he takes several prescription medications for his heart problems, seizures, hypoglycemia, and for pain and inflammation in his back and legs. Additionally, he has tried various treatment modalities for his back and leg pain, including, physical therapy, epidural cortisone injections, ultrasound therapy, and he has undergone three MRIs. This multitude of evidence of medical treatment and pain medication supports the credibility of Henderson's SPCs. See Beckley v. Apfel, 152 F.3d 1056, 1060 (8th Cir. 1998) (noting consistency between record and claimant's SPCs where claimant had many visits to doctors, took numerous prescription medications for pain and inflammation, and availed herself of many treatment modalities for chronic pain).
The ALJ also states that a failure by Henderson to seek follow-up care, recommended by Dr. Adelman, for a change in seizure medication also weighed against crediting his testimony. While Henderson was in the hospital for what would eventually be bypass surgery, he was examined by Dr. Adelman. Dr. Adelman thought that Henderson's seizures were too frequent and that he should switch medications from Dilantin to Tegretol. Dr. Adelman asked that Henderson have his Tegretol levels checked approximately one week after his discharge from the hospital and phone the results to Dr. Adelman. The ALJ implies that Henderson did not follow these instructions and that this "failure to seek . . . medical attention . . . is inconsistent with his complaints of a disabling seizure disorder." (R. at 21.) The ALJ then concluded that Henderson's seizures can be controlled given compliance with his medication.
The record supports the ALJ's ultimate conclusion, the controllability of Henderson's seizures, but the record is not so clear regarding the ALJ's decision to discredit Henderson for failing to seek medical attention. It is more likely that Henderson's "family" doctor, Dr. Latella, was the person directed to check Tegretol levels and phone them to Dr. Adelman. In an April 19, 1994, memorandum to Dr. Latella summarizing Henderson's discharge from Mercy Hospital, Dr. Adelman states that Henderson was to have his Tegretol level checked in one week and that the results should be phoned to Dr. Adelman. (R. at 187.) Dr. Adelman's notes reflect that he received a message from Mrs. Henderson on June 3, 1994, regarding Tegretol levels. While somewhat unclear, the message shows evidence that Henderson attempted to comply with Dr. Adelman's instructions to have his Tegretol levels checked. Finally, in a toxicity report in the records from Hamilton County Public Hospital, the main focus is Henderson's Tegretol levels. (R. at 295.) The date of the report, April 20, 1994, is consistent with the time frame in which Dr. Adelman instructed Henderson to provide results of a Tegretol check. These portions of the record do not support the ALJ's determination that Henderson failed to seek recommended follow-up care and that his testimony regarding his SPCs was not credible.
The message reads: "5-19-94 Tegretol level 10.4 (4-8) pt taper Dilantin 100 mg per week till off then get another Tegretol level a week after off Dilantin." (R. at 177.)
PRECIPITATING AND AGGRAVATING FACTORS
The ALJ's decision did not consider precipitating and aggravating factors in determining the credibility of Henderson's SPCs. The court notes that almost any type of physical activity apparently aggravates Henderson's pain. This has been evidenced in his complaints to his doctors, in his written statements to representatives of the Commissioner, and in his testimony before the ALJ.
FUNCTIONAL RESTRICTIONS
Although the ALJ credited some of Henderson's testimony regarding his functional restrictions, he noted that none of Henderson's doctors stated that Henderson should be precluded from all work. In supporting his conclusion that Henderson retained the functional capacity to work, the ALJ pointed out that Dr. Kimelman stated on January 10, 1995, that Henderson "could be on modified duty, sedentary type work." (R. at 20.) He also noted that on February 14, 1995, Dr. Kimelman suggested that Henderson should be considered for Vocational Rehabilitation or a job change. Id.
The record shows that none of Henderson's doctors explicitly precluded him from all work. Lack of significant restrictions imposed by treating physicians can support an ALJ's finding that a claimant's complaints of disabling pain are inconsistent. See Brown v. Chater, 87 F.3d 963, 965 (8th Cir. 1996); Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir. 1993). In conducting its duty to determine if the ALJ considered all the relevant evidence, the court notes that in December 1994, Dr. Latella recommended that Henderson be off work for one month, in January 1995, Dr. Latella hospitalized Henderson for two days because of his pain, and in February 1995, Dr. Kimelman recommended that Henderson "remain off work." (R. at 283.) However, because the record reflects that Henderson's physicians did not impose significant restrictions, this Polaski factor weighs against crediting Henderson's SPCs.
THE CLAIMANT'S RELEVANT WORK HISTORY
Henderson argues that the ALJ correctly acknowledged Henderson's strong work record, but erred when he found that the "record neither detracts from nor adds to [Henderson's] credibility." (R. at 21.) While an impressive work record, by itself, may not comment on an individual's impairments, functional abilities, abilities to work in the national economy, such is not the case with Henderson. See Brown, 87 F.3d at 965 (8th Cir. 1996). Henderson not only has an impressive work history to support the credibility of his SPCs, (R. at 100-05), but also a history of limited daily activities, pain complaints, and numerous medications and treatments. It is hard to reconcile the ALJ's recognition of Henderson's work history, which does not stand alone, with a finding that it does not add to his credibility. Such a finding is not based on substantial evidence.
WHETHER OBJECTIVE MEDICAL EVIDENCE EXISTS TO SUPPORT THE COMPLAINTS
The ALJ found further support for his decision to discredit Henderson's SPCs from a lack of objective medical evidence. Specifically, the ALJ found Henderson's "symptoms and allegations of functional limitations are not supported by medical evidence," and that "there is no objective medical evidence that the claimant's pain is of such severity that he is totally incapacitated from performing all work." (R. at 20.)
"Although the ALJ may not reject subjective complaints solely because of a lack of objective medical evidence on the record as a whole, the absence of objective medical evidence which supports the degree of severity is a factor to be considered by the ALJ."
Barrett v. Shalala, 38 F.3d 1019, 1022 (8th Cir. 1994). The record in Henderson's case, however, contains ample objective medical evidence to support the severity of pain Henderson claims. See supra Part III.C.2.c. Thus, the ALJ's finding regarding this factor is not based on substantial evidence. Moreover, in reviewing the Polaski factors as a whole, the court does not find that the ALJ's decision to discredit Henderson's SPCs is based on substantial evidence.
RFC assessment and whether to apply the Medical-Vocational Guidelines
Henderson argues that the ALJ erred when he called a VE to testify about whether Henderson could perform substantial gainful activity in the national economy. Henderson contends that because his characteristics regarding his age, education, and past work experience did not differ significantly from section 201.14 of the Medical Vocational Guidelines ("the grids"), the ALJ should have relied on the grids and found Henderson disabled. The Commissioner, on the other hand, argues that because the ALJ found that Henderson retained the residual functional capacity ("RFC") to perform not only sedentary work, but also light work, Henderson's characteristics differed significantly from the appropriate grid listing, and he was therefore correct in consulting a VE.
Section 201.14 dictates a finding of disability for a person who: (1) is limited to sedentary work, (2) is closely approaching retirement age, (3) has a education level of high school graduate or more, but with no provision for direct entry into skilled work, and (4) had past relevant work of a skilled or semi-skilled nature, but those skills are non-transferable. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.14.
At the core of this argument is whether or not the ALJ properly assessed Henderson's RFC. If a claimant is unable to return to his previous work, the Commissioner's two-fold burden in showing a claimant is not disabled is to: (1) prove by medical evidence that the claimant has the RFC, physical capacity, to do other kinds of work, and (2) demonstrate that jobs are available in the national economy considering the claimant's age, education, previous work experience, and exertional and nonexertional impairments. Fenton v. Apfel, 149 F.3d 907, 910 (8th Cir. 1998) (citations omitted). If the claimant's characteristics do not differ significantly from those contemplated in the grids, the ALJ may rely on the grids alone to direct a finding of disabled or not disabled. Thompson v. Bowen, 850 F.2d 346, 349 (8th Cir. 1988). The ALJ erred at the first step, failing to prove by medical evidence that Henderson had the RFC to do other kinds of work. Specifically, the ALJ erred when he concluded that Henderson could perform light work.
Section 404.1567 of the regulations defines light work:
(b) Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.20 C.F.R. § 404.1567(b).
Generally, a treating physician's opinion is entitled to substantial weight as long as it is supported by medically acceptable clinical or diagnostic data. Baker v. Apfel, 159 F.3d 1140, 1145 (8th Cir. 1998). The only indication of an RFC assessment from Henderson's doctors comes from Dr. Kimelman who, in January 1995, suggested that Henderson could be on "sedentary type work." (R. at 281.) This conclusion was supported by the medical record which showed Henderson had unsuccessfully tried ultrasound, physical therapy, and epidural cortisone shots to relieve his pain. Additionally, within two weeks of Dr. Kimelman's suggestion, an MRI of Henderson showed ruptured discs.
The ALJ, on the other hand, relied on the RFC assessments "completed by the State Agency physicians" who had never examined Henderson. See Metz v. Shalala, 49 F.3d 374, 378 (8th Cir. 1995) ("The opinion of a consulting physician who examines a claimant once or not at all does not generally constitute substantial evidence."). Furthermore, the fact that the RFC assessments upon which the ALJ relied were completed in June 1995, a year before Henderson's hearing before the ALJ, also weigh against their credibility. Frankl v. Shalala, 47 F.3d 935, 938 (8th Cir. 1995) (finding RFC forms, completed almost one year before date of hearing, did not constitute substantial evidence). The court finds that the ALJ erred in not relying on Dr. Kimelman's statements that Henderson should be restricted to sedentary work.
If Henderson is restricted to sedentary work, then his characteristics do not "differ significantly from those contemplated in the Medical-Vocational Guidelines," and "the ALJ may rely on the Guidelines alone to direct a finding of disabled or not disabled." Lucy, 113 F.3d at 908 (8th Cir. 1997) (citations omitted). Additionally, because the grids, when applicable, are conclusive and not presumptive, the ALJ's decision to call a VE rather than rely on the grids was erroneous. See SSR 83-5a, 1983 WL 31250.
Whether the ALJ posed a complete and accurate hypothetical
Henderson alternatively claims that even if the ALJ was correct in calling a VE, the ALJ's decision was still not based on substantial evidence because the hypothetical question posed to the VE was inaccurate and incomplete. A VE's testimony only constitutes substantial evidence when based on a properly phrased hypothetical question. Cruze v. Chater, 85 F.3d 1320, 1323 (8th Cir. 1996). Furthermore, the hypothetical question must include those impairments that the ALJ finds are substantially supported by the record as a whole. See Stout v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993).
Henderson's argument rests on his allegation that the ALJ improperly failed to include Henderson's mental impairments. In support of this argument, Henderson notes three items from the record. First, that on the "OHA Psychiatric Review Technique Form," the ALJ noted the presence in Henderson of both an organic mental disorder and a mild memory deficit. (R. at 28-29.) Second, in a psychiatric review, Dr. Steven G. Warner noted the presence of a mild memory deficiency. (R. at 81.) Third, Dr. David Johnson noted Henderson:
. . . will be mildly to moderately limited, for reasons of memory limitations, in his ability to remember and understand instructions, procedures, and locations, to carry out instructions, maintain attention, concentration, and pace, to interact appropriately with supervisors, coworkers, and the public, and to use good judgment and to respond appropriately to changes in the workplace.
(R. at 359.)
In Henderson's case, the ALJ acknowledged that Henderson had a mental impairment and that finding is supported by objective evidence — the review performed by Dr. Johnson. However, the ALJ found Henderson's mental impairment to be nonsevere and summarily dismissed it. Simply because an acknowledged mental impairment is not of listing-level severity, see supra Part III.C.1, does not mean that the ALJ is entitled to omit it from a hypothetical question to a VE. Pickney v. Chater, 96 F.3d 294, 296-97 (8th Cir. 1996). Since the hypothetical question posed to the VE did not capture the concrete consequences of Henderson's deficiencies, the VE's answer does not constitute substantial evidence. See id. (quotations and citations omitted).
D. Whether the Appeals Council properly reviewed the ALJ's decision
Henderson argues that the Appeals Council erred in its review of his request for reconsideration of the ALJ's decision. Henderson states that "[t]here is no indication whatsovever that any substantial evaluation of his file was made prior to the issuance of a form letter denying review." (Pl. Br. at 17.) "The regulations permit an applicant to seek administrative review by the Secretary's Appeals Council." Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992). When the Appeals Council denies review, as in Henderson's case, the regulations dictate that the ALJ's determination stands as the Secretary's final decision. See Id.; 20 C.F.R. § 404.981. Moreover, this court's jurisdiction is limited by statute to the "final decision of the Secretary." 42 U.S.C. § 405(g). "Therefore, we may only review the ALJ's final decision, not the Appeals Council's non-final administrative decision to deny review. Browning, 958 F.2d at 822; see Piepgras v. Chater, 76 F.3d 233, 238 (8th Cir. 1996).
E. Appropriate Relief
The Court may affirm, modify, or reverse the Commissioner's decision with or without remand to Commissioner for a rehearing. 42 U.S.C. § 405(g). Furthermore, "[w]here the record overwhelmingly supports a disability finding and remand would merely delay the receipt of benefits to which plaintiff is entitled, reversal is appropriate." Thompson v. Sullivan, 957 F.2d 611, 614 (8th Cir. 1992).
While reversal is appropriate in Henderson's case, the court must also determine the date of onset for Henderson's disability.
SSR 83-20 sets forth guidelines for determining the onset date of a claimant's disability. The ruling defines the disability onset date as "the first day an individual is disabled as defined in the Act and the regulations." SSR 83-20, 1983 WL 31249 (S.S.A.). In determining the onset date for disabilities of nontraumatic origin, the ALJ should consider the applicant's allegations, [his] work history, and the medical and other evidence of [his] condition.
With slowly progressive impairments, it is sometimes impossible to obtain medical evidence establishing the precise date an impairment became disabling. Determining the proper onset date is particularly difficult, when, for example, the alleged onset and the date last worked are far in the past and adequate medical records are not available. In such cases, it will be necessary to infer the onset date from the medical and other evidence that describe the history and symptomatology of the disease process. . . . How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. Grebenick v. Chater, 121 F.3d 1193, 1200 (8th Cir. 1997) (quoting SSR 83-20).
The court finds that the correct onset date of Henderson's disability is December 8, 1994. On December 8, 1994, Henderson completely stopped working due to a back injury. (R. at 112.) Additionally, the medical evidence showed that Henderson began making complaints of back pain to his doctor in November 1994. Henderson began his first of several attempts at treatment during this time period. He also had an MRI in December 1994 which showed bulging discs, and a second MRI in January 1995 which showed a ruptured disc. This informed judgment of the facts leads to the conclusion that Henderson's disability onset date is December 8, 1994.
IV. CONCLUSION
The decision of the ALJ should not be affirmed because it is not based on substantial evidence. In light of a review of the Polaski factors, the ALJ erred in his decision to not fully credit Henderson's subjective pain complaints. The ALJ also erred by posing an incomplete and inadequate hypothetical question to the vocational expert. More importantly, the ALJ erred in assessing Henderson's residual functional capacity. The record supports a conclusion that Henderson is limited to sedentary type work. Additionally, the Medical-Vocational Guidelines direct a finding of disabled for a person of Henderson's age, education, and past work experience who is limited to sedentary work. Therefore, the ALJ should have relied on the Medical-Vocational Guidelines and found Henderson disabled rather than calling a vocational expert to testify.
IT IS RECOMMENDED that, 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 ALJ's decision be reversed, judgment be entered in favor of the plaintiff, and the case be remanded to the Commissioner with instructions to award benefits from Henderson's disability onset date of December 8, 1994.
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.