Opinion
Civ. No. 02-4909 (ADM/RLE).
January 28, 2004
REPORT AND RECOMMENDATION
I. Introduction
The Plaintiff commenced this action, pursuant to Section 205(g) of the Social Security Act, Title 42 U.S.C. § 405(g), seeking a judicial review of the Commissioner's final decision, which denied her application for Supplemental Security Income ("SSI"). The matter is now before the Court upon the parties' cross-Motions for Summary Judgment. For these purposes, the Plaintiff has appeared by Daniel S. Rethmeier, Esq., and the Defendant has appeared by Lonnie F. Bryan, Assistant United States Attorney. For reasons which follow, we recommend that the Plaintiff's Motion for Summary Judgment be denied, and that the Defendant's Motion be granted.
II. Procedural History
The Plaintiff filed an application for SSI on March 12, 2001, with a protective filing date of February 27, 2001, which alleged that she had become disabled on February 7, 2001. [T. 73-76, 117]. Her claim was denied upon initial review, and upon reconsideration. [T. 52-57].On September 26, 2001, the Plaintiff requested a Hearing before an Administrative Law Judge ("ALJ") and, on April 23, 2002, a Hearing was conducted, at which the Plaintiff appeared personally, and by legal counsel. [T. 29-51]. Thereafter, on May 10, 2002, the ALJ issued a decision which denied her claim for benefits. [T. 11-25]. The Plaintiff requested an Administrative Review before the Appeals Council which, on December 10, 2002, declined to review the matter further, despite the Plaintiff's submission of additional evidence. [T. 7-9]. Thus, the ALJ's determination became the final decision of the Commissioner.Steahr v. Apfel, 151 F.3d 1124, 1125 (8th Cir. 1998);Johnson v. Chater, 108 F.3d 942, 943-44 (8th Cir. 1997); 20 C.F.R. § 1481. This action was commenced on December 26, 2002.
III. Administrative Record
A. Factual Background. The Plaintiff's earliest medical records are from the Affiliated Community Medical Centers, where she received treatment for a variety of complaints until at least September 13, 2000. [T. 175-232]. On March 30, 1998, she was seen after a recurrence of fibromyalgia, which she described as a constant burning sensation, that increased with any movement. [T. 232]. The doctor noted that the Plaintiff had decreased range of motion of her head. Id. She was instructed to continue taking Ibuprofen 800 mg., and using hot and cold for treatment, and she was prescribed Norflex and Elavil. [T. 231].
Norflex "is indicated as an adjunct to rest, physical therapy, and other measures for the relief of discomfort associated with acute painful musculoskeletal conditions."Physicians' Desk Reference, p. 1888 (57th Ed. 2003).
Elavil is the "trademark for preparation of amitriptyline hydrochloride, which is "a tricyclic antidepressant * * * also having sedative effects." Dorland's Illustrated Medical Dictionary, p. 63, 573 (29th Ed. 2000).
At her next visit, on April 29, 1998, the Plaintiff complained of shortness of breath and pain in her left heel and arch area. She was diagnosed with bronchitis, with an underlying asthma condition, fascitis of the left heel, and fibromyalgia, and was prescribed Albuterol and Azmacort [T. 230]. She also reported that the Elavin had helped to control her symptoms of fibromyalgia. [T. 230].
Albuterol is "used as a bronchodilator for the treatment and prophylaxis of reversible bronchospasm in obstructive airway disease." Dorland's Illustrated Medical Dictionary, at 45 (29th Ed. 2000).
Azmacort is the "trademark for a preparation of triamcinolone acetonide," which "is administered by inhalation for the chronic treatment of bronchial asthma." Dorland's Illustrated Medical Dictionary, at 181, 1871 (29th Ed. 2000).
On May 9, 1998, the Plaintiff was admitted to Granite Falls Hospital for a spinal tap, after she complained of a history of lower extremity weakness, which dated back to when she was three years old, and polio was suspected. [T. 157]. The spinal tap was performed to rule out multiple sclerosis ("MS"), and post paralytic polio syndrome. Id. The doctor noted that she had a history of fibromyalgia, and was taking Amitriptyline, Norflex PRN, and she also used Albuterol and Azmacort for shortness of breath. Id. An examination revealed an unsteady gait, wobbling, and an inability to fully flex the hip and extend the knee joint. [T. 158]. The Plaintiff had difficulty getting up from a chair, and sitting up from a lying down position. Id. However, she had normal strength, extension, flexion, and hand grip in her upper limbs. Id. Ultimately, the oligoclonal bands and other protein markers were negative for MS, but the Plaintiff was transferred to Methodist Hospital for further evaluation. [T. 157].
The Plaintiff underwent a neurological evaluation, and had a complete work-up, but the cause of her symptoms was still unknown. [T. 229]. The doctor noted that she was going to have some special spine x-rays, due to a condition of basilar evagination of her cervical spine, so as to ensure that there was no impingement, and the Plaintiff was ordered to stay off of work for a couple of weeks. Id. On May 21, 1998, the Plaintiff continued to complain of weakness and unsteadiness, and an inability to walk. [T. 228]. She reported that she did not do a lot of her housework, such as vacuuming, because she was too weak. Id. The doctor noted that she would probably need to have a muscle biopsy, which does not appear to have been completed at that time, because her symptoms subsequently resolved. [T. 226-227]. Her other test results, including the cervical spine x-rays and the antibody test, came back negative. [T. 226]. In June of 1998, the Plaintiff's doctor wrote her a letter, in which he stated that she needed to discontinue her present job, and have vocational rehabilitation, apparently in response to a telephone call by the Plaintiff in which she stated that she had applied for vocational rehabilitation and social security. [T. 224-225].
Symptoms similar to those from her episode in May of 1998, resurfaced in October of 1998, when the Plaintiff complained of head pressure. [T. 221]. She reported that her thought processes were more difficult, and she had a hard time staying focused.Id. At that time, she also denied having any problems with constipation, diarrhea, or change in her bowels. Id. After a recheck two weeks later, she was diagnosed with chronic sinusitis, which was resolved with the use of Keflex. [T. 219]. Later that same month, the Plaintiff came in again complaining that her legs were shaking, and she was walking jerkily. [T. 218]. She also stated that her hands, and sometimes her head, would shake, which created difficulty with typing, but if she picked up a pencil, she was able to write, because the shaking would dissipate. Id. The doctor recommended that she go to either Mayo or the University for further evaluation, including a muscle biopsy. Id. Subsequent records reveal that she was seen at the University, but a cause was not found. [T. 197].
Keflex is indicated for the treatment of a number of infections. Physicians' Desk Reference, at 1231 (57th Ed. 2003).
The Plaintiff had a complete physical examination on November 13, 1998, during which she again reported trouble with her memory, which she attributed to fatigue. [T. 215]. On February 1, 1999, she was seen for complaints of lower back pain. [T. 210]. She reported that she had been doing some housework and felt a click and a burning sensation in her hip, which resulted in sharp and constant pain, radiating down both of her legs. Id. She did not feel any numbness or tingling, and stated that her pain was worse while sitting, and better with ice. Id. The doctor noted that she had some limited range of motion, which was due, in part, to her size. She was given prescriptions for Lodine and Flexeril, and was referred to physical therapy. Id. The Plaintiff returned a week later, after she rolled over in bed, heard a pop, and immediately felt excruciating pain in her lower back, which radiated down her right leg. [T. 208]. Again, she stated that the pain was worse when she sat, and better when she was lying down. Id. She had been able to sit in class for twenty minutes but, after that, she had some problems in her right leg. Id. She was ordered to continue with Lodine and physical therapy, discontinue Flexeril, and she was given a new prescription for Ultram. Her x-rays were within normal limits. [T. 207].
Lodine is the "trademark for preparations of etodolac," which is "a nonsteroidal anti-inflammatory drug prescribed as an analgesic and anti-inflammatory." Dorland's Illustrated Medical Dictionary, at 626, 1026 (29th Ed. 2000).
Flexeril "is indicated as an adjunct to rest and physical therapy for relief of muscle spasm associated with acute, painful musculoskeletal conditions." Physicians' Desk Reference, at 1897 (57th Ed. 2003).
Ultram "is indicated for the management of moderate to moderately severe pain in adults." Physicians' Desk Reference, at 2511 (57th Ed. 2003).
In October of 1999, the Plaintiff injured her left knee. [T. 201-202]. She reported a history of recurrent knee problems, and had two arthroscopic surgeries for a meniscal tear and chondromalacia patella. [T. 202]. Normal range of motion was noted, but with discomfort at the extremes of flexion. Id. The doctor suspected a medial meniscal tear, ordered an MRI, and placed the Plaintiff in a knee immobilizer. Id. However, the MRI revealed no evidence of a meniscal tear. The impression was of a small joint effusion, marked attenuation of the ACL, and mild degenerative osteophytic changes. [T. 201].
Later that same month, she reported irregularity in her bowel movements. [T. 200]. She stated that tests had been performed eleven years earlier, which showed some sort of a mass, but she never followed up with a colonoscopy. Id. One was scheduled for November 3, 1999. Id.
The Plaintiff returned on November 18, 1999, for upper back spasms. [T. 198]. Although she had visited both a chiropractor and a reflexologist, they did not help. Id. In January of 2000, she stated that she was experiencing numbness in her right foot and leg, but did not appear to have any difficulty walking, and no weakness was found. [T. 197]. However, there appeared to be some decreased sensation of the medial foot, as compared to the lateral foot. Id. An EMG suggested mild right median nerve mononeuropathy or carpal tunnel syndrome, but there was no evidence of lower extremity neuropathy, and the MRI was essentially normal. [T. 192, 194].
On March 21, 2000, the Plaintiff reported that she was having trouble with her left knee again, which had previously been felt to be a patellofemoral syndrome, possibly related to an ACL tear. [T. 190]. The doctor noted that her left knee was loose. Id. She underwent left knee reconstruction of her ACL in June of 2000, and from June 15, 2000, to July 31, 2000, the Plaintiff underwent physical therapy. [T. 167-185]. At her pre-operation consultation, she reported incontinence, some of which was stress-related, and some was related to very little urge, and it resulted in leakage. [T. 183]. During this time, she also reported problems with her left ankle, bilateral foot pain, which was diagnosed as right plantar fascitis, and a left heel spur. [T. 176-181]. She was also diagnosed with rhomboid muscle strain, after she reported upper back pain on September 13, 2000. [T. 175].
In November of 2000, the Plaintiff began visiting Lakeview Medical Clinic, where she sought treatment for low back pain and right shoulder pain, possibly related to her recent move. [T. 271]. Although she saw various doctors there from November 7, 2000, to May 31, 2001, her primary physician appears to be Dr. Larry Okerlund. At her visit on November 7, 2000, the doctor noted that she was currently taking Darvocet, Ibuprofen 800 mg., Prozac, and Nasacort. Id. She demonstrated tenderness with resisted external rotation of the shoulder, and forward flexion of the arm. Id. The doctor diagnosed her with sacroiliac joint strain and right rotator cuff tendinitis, and recommended that she avoid any work with her arms above her head, and stretching exercises, and prescribed Vioxx and Soma. Id. When she returned with similar complaints, Dr. Okerlund ordered physical therapy, and the Plaintiff subsequently had an x-ray of her lumbar spine. [T. 236-238, 251, 269]. After she slipped and fell on the ice, she came in again, but reported no numbness, tingling or radiating pain. Id. She also stated that she had no bowel or bladder dysfunction. Id. The doctor advised that he preferred lifestyle modification as treatment for fibrobmyalgia, but prescribed a Medrol Dosepak. Id. The Record also contains a note from Dr. Philip Vanderstoep, which states that the Plaintiff's lumbar spine and sacroiliac joints were normal. [T. 268].
Darvocet "is a centrally acting narcotic analgesic agent," indicated "for the relief of mild to moderate pain." Physicians' Desk Reference, at 3504 (57th Ed. 2003).
Prozac is an antidepressant indicated for the treatment of depression. Physicians' Desk Reference, at 1232-33 (57th Ed. 2003).
Nasacort "is indicated for the treatment of the nasal symptoms of seasonal and perennial allergic rhinitis in adults and children 6 years of age and older." Physicians' Desk Reference, at 746 (57th Ed. 2003).
Vioxx is indicated for the relief of the signs and symptoms of osteoarthritis and rheumatoid arthritis in adults.Physicians' Desk Reference, at 2122 (57th Ed. 2003).
Soma "is indicated as an adjunct to rest, physical therapy, and other measures for the relief of pain, muscle spasm, and limited mobility associated with acute, painful musculoskeletal conditions." Physicians' Desk Reference, at 3255 (57th Ed. 2003).
Medrol is the "trademark for preparations of methylprednisolone," which is "used in replacement therapy for adrenal insufficiency and as an anti-inflammatory and immunosuppressant in a wide variety of disorders." Dorland's Illustrated Medical Dictionary, at 1072, 1105 (29th Ed. 2000).
On January 26, 2001, the Plaintiff complained of abdominal pain, with a few loose stools. [T. 267]. She was diagnosed with colitis and a history of irritable bowel syndrome, prescribed Bentyl, and was given a sample of Cipro. Id. She returned to Dr. Okerlund on February 9 and 10, 2001, and was diagnosed with right renal colic. [T. 266]. An intravenous pyelogram and other examinations returned normal, and he noted that there was no guarding or rigidity. [T. 265].
Bentyl is the "trademark for preparations of dicyclomine hydrochloride," which is "an anticholinergic, used as an anti-spasmodic in the treatment of functional gastrointestinal disorders." Dorland's Illustrated Medical Dictionary, at 204, 497 (29th Ed. 2000).
Cipro "is indicated for the treatment of infections caused by susceptible strains of the designated microorganisms" in numerous conditions. Physicians' Desk Reference, at 877 (57th Ed. 2003).
The Plaintiff was also seen in February of 2001 for neck and right arm pain, and did demonstrate tenderness. [T. 263-265]. Dr. Okerlund prescribed Vioxx and Percocet, and subsequently scheduled an MRI of her neck and right shoulder. [T. 265]. X-rays of the shoulder were negative, but x-rays of the cervical spine showed some loss of disc height at C5-6 and C6-7, and the Plaintiff was diagnosed with possible cervical disc disease with radiculopathy. [T. 264]. Her prescription for Vioxx was replaced with Celebrex. Id. In addition, the MRI confirmed mild disc space, which was narrowing with spondylosis, and an associated broad-based disc bulge, which caused a moderate spinal stenosis, but her shoulder was normal.Id. The impression was of degenerative spondylosis in the lower cervical spine. Id. The Plaintiff also underwent physical therapy for her arm pain, and reported moderate response. [T. 233-235, 246, 264]. Pursuant to Dr. Okerlund's request, Dr. David Jorgenson, with Little Falls Orthopedics, evaluated the Plaintiff in March of 2001. [T. 240-241]. He found that she suffered from degenerative disc disease in her cervical spine, and sent her to physical therapy. [T. 240]. However, the Plaintiff reported that the therapy only exacerbated her pain, and instead, she requested a referral to Dr. Garry Banks at the Advanced Spine Associates.Id.
Percocet "is indicated for the relief of moderate to moderately severe pain." Physicians' Desk Reference, at 1304 (57th Ed. 2003).
Celebrex "is indicated for relief osteoarthritis, rheumatoid arthritis, and acute pain." Physicians' Desk Reference, at 2590 (57th Ed. 2003).
The Plaintiff then began treating with Dr. Banks on March 19, 2001. [T. 286-287]. He noted tenderness in the C6-7 region of her neck, and in both trapezius areas, as well as moderate decreased cervical motion. [T. 287]. He reviewed the MRI and diagnosed her with multilevel disc degeneration, most marked at C6-7, with central disc herniation and left foraminal stenosis, right subacromial bursitis, and a history of fibromyalgia. Id. Dr. Banks and the Plaintiff discussed proceeding with a discography, in order to determine whether a cervical fusion procedure would provide improvement, and chronic pain management. Id. The Plaintiff underwent the discography, during which, the injections resulted in severe concordant pain at C5-6 and C6-7, but the procedure was then terminated because of her pain. [T. 283]. She informed Dr. Banks that she would like to proceed with the discography at the adjacent levels. Id. The procedure was subsequently performed on April 11, 2001, and revealed no significant pain reproduction and normal disc morphology. [T. 280]. The Plaintiff and Dr. Banks again discussed the possibility of surgery, with which the Plaintiff wanted to proceed. Id.
Also, in April of 2001, the Plaintiff complained of pain in her right buttocks, and posterior upper leg, but she denied any back pain. [T. 263]. Brian Yost, a physician's assistant, was unable to detect any swelling or tenderness, and he diagnosed her with sciatica. Id. He noted that she had been put on Vicodin recently, and he continued that, Percocet, and Vioxx, and advised her to do some stretching exercises. Id. The Plaintiff indicated that she had some exercises from physical therapy that she was going to try. Id. She returned on May 2, 2001, after a volleyball pole fell on her right foot, but no broken bones were detected. [T. 260]. The doctor wrapped her foot and ordered rest, ice and elevation.
Vicodin is "indicated for the relief of moderate to moderately severe pain." Physicians' Desk Reference, at 509 (57th Ed. 2003).
The State Agency physicians completed their Functional Capacity Assessment ("FCA") of the Plaintiff in April of 2001. [T. 290-312]. Dr. Cliff Phibbs found that she could lift up to twenty pounds occasionally, and ten pounds frequently, could sit or stand for six hours per 8-hour workday, and was limited in her upper extremities. [T. 291]. He further noted that she could frequently balance and stoop, occasionally kneel, crouch, crawl, and climb ramps and stairs, but could never climb ladders, ropes or scaffolds. [T. 292]. The only other limitation was on reaching in all directions, including overhead, where Dr. Phibbs noted that she should avoid rigorous and/or frequent motion of the neck. [T. 293]. Dr. Alan Suddard reviewed the file on August 22, 2001, noted that the Plaintiff had undergone surgery since the date on which the FCA was originally completed, but concurred with the findings. [T. 297].
We note that Dr. Banks issued his work restrictions in between the time that Dr. Phibbs completed the FCA, and the time that Dr. Suddard affirmed it.
Dr. Thomas Kuhlman completed the mental FCA, and found that the Plaintiff suffered from a non-severe personality disorder, characterized by persistent disturbance of mood or affect. [T. 300-307]. However, he made no assessment, whatsoever, as to any functional limitations arising from that disorder. [T. 310]. The only other notation on the form appears to indicate that a consultative examination was not needed because the Plaintiff did not allege depression, and did not reference it on her activities of daily living form. [T. 312]. It also appears to say that the notes from her primary care physician suggest that the Plaintiff suffered from severe depression at one time, but that it had been treated with a selective serotonin re-uptake inhibitor, and had improved. Id. On August 22, 2001, Dr. Russell Ludeke affirmed those findings. [T. 300].
The Plaintiff had surgery on May 15, 2001, in which Dr. Banks performed anterior discectomies with interbody fusion, anterior decompression with partial vertebrectomy, anterior plating, left anterior iliac crest bone graft, and reconstruction of the iliac crest with allograft. [T. 253-255]. Subsequent to the surgery, the Plaintiff developed constipation, for which she was seen by Dr. Okerlund on May 31, 2001. [T. 259].
The Plaintiff was seen for further evaluation by Dr. Banks on June 25, 2001, at which time, she reported improvement in her back and neck pain, and stated that her back pain was tolerable with light activities. [T. 278-279]. She further stated that she still had some neck discomfort, and intermittent pain in her lower extremities. [T. 279]. She noted that her pain increased, when she tried to increase her activities, and she had to change positions every fifteen minutes to keep her pain at a tolerable level. Id. Dr. Banks examined her lumbar spine, which was tender and had mild spasm present. Id. He reported that her lumbar mobility was quite restricted, and that her lumbar MRI revealed moderate L4-S1 disc degeneration, with posterior annular tearing at each level.Id.
Considering the Plaintiff's chronic back and neck pains, Dr. Banks recommended permanent restrictions, which included a maximum of five pounds lifting, an avoidance of bending and twisting activities on a permanent basis, and the ability to change positions every fifteen minutes. Id. He stated that it would be unlikely that the Plaintiff would find gainful employment within the restrictions, as detailed in the workability form. Id. On the Report of Workability, Dr. Banks reiterated those restrictions, and advised that the Plaintiff was able to return to work immediately, but with permanent restrictions, and for only four to five hours per day. [T. 278]. The restrictions included lifting, carrying, pushing, and pulling, a maximum of five pounds, total restrictions on bending, twisting, turning, kneeling, squatting and overhead reaching, and an ability to change positions every fifteen minutes. Id. He also repeated his earlier conclusion that the Plaintiff was unlikely to find long-term work within those restrictions. Id.
In July of 2001, the Plaintiff had a hysterectomy, with no apparent complications. [T. 288-289]. She was seen again by Dr. Banks in September of 2001, for further evaluation of her lower back. [T. 322]. She reported that neither physical therapy nor Vioxx had been helping, and an examination revealed tenderness and restricted flexion and extension. Id. Dr. Banks opined that she was likely having increased problems related to the L4-S1 degenerative disc problems, and he recommended proceeding with the discography on L3-sacrum. Id. The discography showed that the L3-4, L4-5, and L5-S1, were all degenerative, with marked annular tearing at each level. [T. 323]. In addition, there was severe concordant pain from L4-S1, and moderately severe concordant pain at L3-4. Id. Dr. Banks and the Plaintiff discussed surgery, and he recommended that she have a thoracic MRI to determine if there was cord impingement which was causing her urinary difficulties. Id.
The Plaintiff had surgery in November of 2001, in which Dr. Banks performed anterior discectomies and fusion, right anterior iliac crest bone graft, reconstruction of the iliac crest with allograft, posterior fusion bilateral facet, and posterior instrumentation. [T. 324-328]. The surgery was performed without complications. [T. 328]. At her follow-up visit, she reported moderate pain in the left anterior iliac bone donor region and pain in the left lateral hip area. [T. 330]. X-rays revealed no complications related to the fusion. Id. He noted that she was progressing reasonably well, and recommended that she gradually progress walking and light activities, with the use of her corset. Id.
During that time, the Plaintiff also visited with a licensed psychologist, Ed Modahl ("Modahl"), and requested an assessment of her mental health status, after other individuals apparently expressed their concern that she might be depressed. [T. 317-319]. She denied delusional thinking or hallucinations, and she was able to attend and concentrate. [T. 317]. Modahl noted that her memory appeared intact, and her judgment, insight, and reasoning, appeared adequate. Id. The Plaintiff stated that she did not think she was depressed, but she reported problems sleeping, poor appetite, feelings of blame, tension and worry, and problems with memory. Id. Modahl administered the MMPI-2 over the phone and, based on those results, as well as a phone interview and a review of her medical records, he concluded that she was exhibiting symptoms of mild depression, and he diagnosed her with a mood disorder due to a general medical condition, with depressive features. [T. 317-319].
In January of 2002, the Plaintiff returned to Dr. Jorgenson for a recheck of her right shoulder. [T. 313]. She reported that her shoulder pain had never really gone away and, while her neck was much better, she continued to have pain with activity over the superior and lateral aspects of the shoulder. Id. Dr. Jorgenson opined that she had chronic impingement with a possible small rotator cuff tear of her right shoulder. Id. Although they discussed surgery, the Plaintiff stated that she was not ready for any more surgery at that point, but would talk with Dr. Banks about it in March. Id.
When she did see Dr. Banks, she reported that much of pre-operative back pain had resolved and her pain control had considerably improved. [T. 315]. She stated that she continued to have ongoing problems even with light activities, and she had discussed right shoulder surgery with Dr. Jorgenson. Id. Dr. Banks noted, again, that she was doing reasonably well, and recommended that she continue to avoid much bending or twisting, and instructed her only to do very limited physical activities.Id. He further recommended that she remain off of work for six months due to her extensive back and neck problems. [T. 316]. The Plaintiff also reported a weakness in her bladder and bowel, with dribbling of urine. [T. 315]. Although she stated that she was able to defecate, she felt that her rectal sphincter was weak.Id. Dr. Banks noted that she was scheduled for a colonoscopy in the near future and, although he was uncertain of the origin of her bowel and bladder symptoms, he stated that it did not appear to be due to any significant neural impingement. [T. 316].
The Plaintiff saw Dr. Susan Congilosi in March of 2002 for fecal incontinence. [T. 320]. She stated that she was taking stool softeners, but that they made her stools much more like liquid, and were causing seepage. Id. After performing several tests, Dr. Congilosi found a large anterior rectocele, which did not completely empty, and opined that her episodes of incontinence were related to the change of her bowel consistency.Id. As a result, Dr. Congilosi recommended that they work at modifying the consistency of her stool and, if her incontinence progressed, biofeedback. Id.
On April 19, 2002, Dr. Okerlund wrote a letter, in which he stated that the Plaintiff had had a very slow recovery, and was beginning to develop more pain and weakness in her left leg, and urinary incontinence. [T. 331]. He stated that she "did meet the definition of disability," that he did not "foresee her gaining meaningful employment within the next 12 months," and that he did "not believe she would be a candidate for any extended activity."Id. He also noted that she was having difficulty with her personal care, and had to rely on someone else to help her put on shoes and socks. Id.
B. Hearing Testimony. The ALJ commenced the Hearing on April 23, 2002, by identifying the individuals present. [T. 31]. The Plaintiff stated that her last name was now Hill, rather than Soupir, since her divorce papers had been finalized. Id. Also present was the Plaintiff's boyfriend, Tim Tweet ("Tweet"). [T. 31-32]. The Plaintiff's attorney made a brief opening statement to clear up the fact that another shoulder surgery had been scheduled, and to draw the ALJ's attention to the conflicting documentation as to whether the Plaintiff's disability insured status was met. [T. 33]. The ALJ clarified that only an application for SSI, and not for DIB, had been filed. [T. 34].
The Plaintiff stated her address, her date of birth, which was April 16, 1958, and which made her 44 years old. [T. 34]. She testified that she was born in the United States, was five feet, five inches tall, and weighed 240 pounds. [T. 34-35]. The ALJ asked her whether that was her normal weight, to which she replied that she had gained about forty pounds over the past six or seven months, due to lack of mobility. [T. 35]. The Plaintiff is right-handed. Id. She testified that she lived with Tweet, in his house. Id. While there were no stairs to the living area, there were stairs going up to a loft, which they did not use, and she had not been to since her back problems had arisen, and before her surgery. Id.
The Plaintiff stated that she only drove when she had to, which she described as once or twice per month, and that Tweet had driven her to the Hearing. [T. 36]. She received $200 per month, which would last for three years, as a result of the property settlement from the divorce. Id. She further testified that she had been receiving General Assistance, but had been taken off of it, after her divorce settlement. Id.
Next, the ALJ inquired as to her education. [T. 36]. The Plaintiff testified that she could read and write English, but did not know any other languages. Id. She graduated from high school, and had attended one year of vocational training in computer support from the Fall of 1998 to 1999. [T. 36-37]. At that time, she was unable to find a job due to her restrictions, so she bought a small restaurant, which she no longer owns. [T. 37]. She stated that she was not currently working, and had not since February of 2001, when she worked for three weeks at Eldon's grocery/deli, as a deli assistant manager. Id. She left that position when her neck and back became so chronic that she was no longer able to work. Id. Prior to that, she had worked at Burger King and McDonald's, and before that, she had owned the restaurant. Id. As to her restaurant, which was located in Belbia [phonetic], Minnesota, she stated that she opened it in July of 1999, and closed it on October 4, 2000, after she lost business due to the closing of a school. [T. 38]. The restaurant was sold at an auction in November of 2000. Id.
The ALJ asked whether she suffered from any medical conditions, other than her back, which prevented her from working. [T. 38]. The Plaintiff responded that she had fibromyalgia for ten years, arthritis in both hips and one shoulder, irritable bowel syndrome, and bowel and bladder problems, which had been ongoing since her first fusion. Id. She stated that she experienced pain on a daily basis, the most severe of which was in her neck and back, that radiated down her legs as the day progressed.Id. She described it as a constant stabbing pain, which could be minimized with rest. Id. However, aggravating factors included walking, sitting, standing, doing dishes, riding in the car, and driving, which was why she no longer drove as often. [T. 39]. She relieved her symptoms by lying down, and by taking Tylenol. Id.
The Hearing continued with the Plaintiff's attorney questioning her. [T. 39]. The Plaintiff stated that she typically awoke at 8:00 o'clock a.m., and went to bed between 9:00 o'clock and 10:00 o'clock p.m. Id. She characterized her sleep as poor, due to her fibromyalgia and muscle spasms, and due to the need to shift during the night, because she was unable to lie in one position for a long time. Id. A good night of constant sleep was about five hours. Id. She further stated that she was able to comfortably sit for fifteen to twenty minutes, after which the pressure in her back was aggravating, and she needed to get up and walk around, to go lie down. Id. She stated that she lay down at least once on a daily basis, when the pain became intense, but she read, rather than napped, during that time. [T. 39-40].
The Plaintiff stated that she could only stand for about five minutes in one position, and that pain from the fusion prevented her from twisting and bending. [T. 40]. As a result, she had altered her daily activities "quite a bit." Id. She stated that she can sit and knit, or crochet, for about fifteen minutes before she had to do something else, such as walk around or lie down. Id. She described it as "constant moving," because she was unable to sit or lie in one position for more than an hour.Id.
The precipitating symptoms, prior to the cervical fusion of her neck, included constant severe pain, which radiated down her arms, and headaches. [T. 40]. The Plaintiff related that, even after her surgery, her pain was only about 25 per cent better. [T. 41]. Since she had the cervical fusion, she was limited in her ability to use the computer, which she stated was "not straight on," and she could not do anything with her upper arms, such as typing and writing, for longer than fifteen minutes at a time. Id. When she worked with her hands outstretched, pain radiated from her neck down to her arms. Id. She listed folding laundry as an example of that type of activity, and she stated that she was only able to do it for five minutes at a time. Id.
The Plaintiff described the damage to her shoulder as a tear in her shoulder, and possibly one in her arm, which created problems because she was right-handed. Id. However, she noted that the x-rays were a year old, so the extent of the damage was unclear.Id. She testified that she had problems lifting a quart of milk, or a coffee pot, and writing. Id. She stated that she could feel an increase in her pain when she lifted a mayonnaise jar, but that her restriction was five pounds, which she felt was appropriate. [T. 42].
The Plaintiff recounted that, prior to her various injuries, she performed 90 per cent of the household work, but that she was now limited to doing the dishes and folding laundry, if it was at a level where she could reach it. [T. 42]. She was not able to do vacuuming, because of the pushing, pulling, and twisting involved. Id. As for cooking, she was able to cook on the stove, or in the microwave — anything that was at her level, without requiring her to bend or twist. Id.
The Plaintiff testified that she continued to see Dr. Banks for follow-up on both her cervical and lumbar fusions. [T. 42]. Her next appointment with Dr. Banks was scheduled for May 31, 2002. [T. 43]. She related that he has not advised that she was available to return to work, after her back fusion in November of 2001, and he had not released her to return to work after the surgical fusion, which meant that she had been off work since the Spring of 2001, pursuant to her doctor's orders. Id. She further stated that there was time, during November and December of 2001, when she was also off work due to physical therapy. Id. In addition, the Plaintiff testified that her irritable bowel syndrome made it difficult for her to work, because there might be a sudden onset. Id. She stated that she constantly had to wear an undergarment, and that she might have to be in the bathroom from one to forty-five minutes at a time. Id. This condition, over which she had no control, flared up on a daily basis. Id.
According to the Plaintiff, Modahl, a licensed psychologist at Lutheran Social Services, advised that she had symptoms of mild depression, as a result of the physical limitations from her injuries and treatment. [T. 44]. He apparently reported that she tended to think in a very concrete manner, and had concentration difficulties and memory problems, which the Plaintiff described as an accurate statement. Id. She testified that she would go to the phone and dial a number, and then forget who she had called and why she was calling them, and that she wrote notes to herself on a daily basis, but often lost them. Id. She also stated that she had difficulty staying on task for an extended period of time. Id. For example, she stated that, while talking, or writing a letter, she would change subjects without realizing it. [T. 45]. She had learned to let it go, and return to it at a later time. Id.
When asked whether her hobbies or social activities had been affected, the Plaintiff replied that she was not able to drive to visit her mother, who lived two and a half hours away, because she was not able to reposition herself while driving, so someone else needed to take her. [T. 45]. She stated that she did not travel very often other than to go to the grocery store. Id. She had last seen her children, and grandchildren, at Christmas.Id. The Plaintiff testified that she used to get out of house on a daily basis, and now it was once per week. Id. Outside of the house, she stated that she used a cane on a daily basis, because she had been known to trip and stumble, and because she had better stability and less pain with a cane. Id.
The ALJ then resumed questioning, and asked the Plaintiff how far she was able to walk at one time. [T. 46]. She responded that she was able to walk 150-200 feet without sitting, and then would have to sit down to rest. Id. When asked how long she needed to rest, she replied, "as long as I can sit, 15 to 20 minutes, and then I'll have to get up and move." Id. She testified that she spent her time reading, knitting, crocheting, and sewing, which she used to be able to do for hours at a time, but was now only able to do for ten to twenty minutes, at the most. Id. As far as cleaning, she could wash dishes, but she had to take several breaks, dust within her reach, and cook. Id. She was unable to do any sweeping or mopping. Id. The Plaintiff also stated that she lay down at least once a day, without napping, usually in the early afternoon. Id. On a monthly basis, she maybe took two naps. [T. 46-47].
The Plaintiff also offered testimony about the limitations on her personal care, and stated that she was unable to shave her legs, take care of her feet, or clip her toenails. [T. 47]. She put her socks on with the assistance of a device, and her shoes were slip-on but, if she had to wear boots or tennis shoes, someone had to put them on for her, and tie them. Id. Finally, she stated that if she needed anything, such as a suppository, someone else had to administer it, since she was unable to do it herself. Id.
The Hearing continued with the testimony of the vocational expert ("VE"), James Berglie. [T. 47]. The VE testified that he had been in the vocational work field for many years, had participated in numerous Hearings, and was familiar with the Dictionary of Occupational Titles. [T. 48]. The ALJ confirmed that the VE had access to the Plaintiff's file, had prepared a past relevant work summary, and had been present during the Hearing. Id. The VE stated that he had no questions, and did not need to make any changes in his earlier submitted paperwork.Id.
The ALJ posed a hypothetical to the VE, which asked him whether "a 43 year old woman with a high school education who can sit for six out of an eight hour day, walk and stand for two hours in an eight hour day, and lift five to ten pounds occasionally," would be able to perform any of the Plaintiff's past relevant work. [T. 48]. The VE testified that such an individual would not be able to perform most of her past relevant work, because it required being on her feet for a majority of the workday, but could do the job of a women's advocate, which was a sedentary job and would not require any substantial lifting. [T. 48-49]. A mild memory loss would not preclude that job, or most others, except for the most skilled tasks. [T. 49]. The ALJ then asked what the effect to the work environment would be for unscheduled breaks, due to any cause. Id. The VE responded that, while some higher skilled jobs would allow a tolerance and flexibility in scheduling, most jobs, including her past relevant work, would not. Id. Instead, she would need to follow the schedule as set by the employer, with normal breaks, and absences of no more than a couple of days per month, and even that would not be tolerated on an ongoing basis. Id. The VE further testified that it would still be the rule with the women's advocate position, which he had described as skilled, because that job involved appointments, and a schedule that would have to be adhered to, and so it would not tolerate unscheduled absences. Id. When asked about work in the national economy, the VE stated, as follows:
In general it does not — there's all kinds of jobs that thee [sic] would be transferable skills to in the past work and unskilled jobs would not tolerate that. There are, in terms of you [sic] hypothetical, a sedentary range of work. Again, and certainly there are jobs that if you can attend routinely, there are jobs that would fall within those parameters.
[T. 50].
With that, the Hearing concluded.
C. The ALJ's Decision. The ALJ issued his decision on May 10, 2002. [T. 11-25]. As he was required to do, the ALJ applied the sequential, five-step analytical process that is prescribed by 20 C.F.R. § 416.920. As a threshold matter, the ALJ concluded that the Plaintiff had not engaged in substantial gainful activity since the date of her alleged onset of disability. [T. 17].
Under the five-step sequential process, the ALJ analyzes the evidence as follows:
(1) whether the claimant is presently engaged in a "substantial gainful activity;" (2) whether the claimant has a severe impairment that significantly limits the claimant's physical or mental ability to perform basic work activities; (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations; (4) whether the claimant has the residual functional capacity to perform his or her past relevant work; and (5) if the claimant cannot perform the past work, the burden then shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform.Simmons v. Massanari, 264 F.3d 751, 754-55 (8th Cir. 2001). A claimant is disabled only if he is not engaged in substantial gainful activity; he has an impairment that limits his ability to perform basic work activities; and his impairment is either presumptively disabling, or he does not have the residual functional capacity to perform his previous work, and he cannot perform other work existing in the national economy. Id. at 754.
Next, the ALJ examined whether the Plaintiff was subject to any severe physical or mental impairments, which would substantially compromise her ability to engage in work activity. See, 20 C.F.R. § 416.921. After considering the Plaintiff's medical history, and the testimony given at the Hearing, the ALJ found that the Plaintiff was severely impaired by spondylosis of the cervical spine, abnormalities of the right rotator cuff, and disc degeneration of the lumbar spine. [T. 18]. However, the ALJ found that the Plaintiff's complaints related to arthritis of the legs, hysterectomy, fibromyalgia, irritable bowel syndrome, depression, and left knee problems, were non-severe. [T. 16-18].
At the Third Step, the ALJ compared the Plaintiff's severe impairments with the impairments contained in Appendix 1, Subpart P of the Regulations. See, 20 C.F.R. § 416.920(d). The ALJ determined that the Plaintiff's impairments did not meet, or equal, the criteria of any Listed Impairment. [T. 18].
Appendix 1 contains a Listing of Impairments that identifies a number of different medical conditions, and describes a required level of severity for each condition. If the required severity is met, the claimant is found disabled without considering vocational factors.
The ALJ then determined the Plaintiff's RFC. [T. 18]. The ALJ recognized that, in order to arrive at the Plaintiff's RFC, he was obligated to consider all symptoms, including the Plaintiff's subjective complaints of pain. The ALJ noted inconsistencies in the Record undermining the Plaintiff's credibility, and stated that "the claimant's description as to the level, intensity, and severity of her pain far exceeds the objective medical evidence." [T. 20-21]. After considering the testimony at the Hearing, the opinions of the Plaintiff's treating physicians, the objective medical evidence, and the Plaintiff's subjective complaints, the ALJ then determined the Plaintiff's RFC to be as follows:
RFC is defined as the most an individual can still do after considering the effects of physical or mental limitations that affect that individual's ability to perform work-related tasks. 20 C.F.R. § 404.1545.
[The Plaintiff] is capable of sitting up to 6 hours in a workday with normal breaks; standing/walking up to 2 hours in a workday; and lifting/carrying 5 to 10 pounds occasionally.
[T. 23]. Proceeding to the Fourth Step, the ALJ discussed the testimony of the VE concerning the Plaintiff's ability to perform her past work. [T. 23-24]. Based on the RFC, and the testimony of the VE, the ALJ determined that the Plaintiff could perform her past relevant work as a women's advocate. [T. 24]. Therefore, it was unnecessary for the ALJ to proceed to the final step and, based upon the testimony of the VE, and taking into consideration the Plaintiff's age, educational background, work experience, and RFC, the ALJ concluded that the Plaintiff was not disabled, and therefore, was not eligible for SSI payments. [T. 23-24].
D. Evidence Submitted to the Appeals Council. Subsequent to the Hearing before the ALJ, and the issuance of the ALJ's decision, but before the case was submitted to the Appeals Council, the Plaintiff's attorney supplemented the Record with medical documents from Dr. Banks and Dr. Jorgenson. [T. 339-350]. The records from Dr. Banks included the results of the lumbar discography, which was conducted on October 8, 2001, and the MRI of her thoracic spine on October 15, 2001. The results of the discography were discussed previously. [T. 323, 343-344]. The MRI showed a normal thoracic spine. [T. 341]. In addition, Dr. Banks saw the Plaintiff on May 31, 2002, at which time, the Plaintiff reported considerable improvement in her pain, but continued neck and low back discomfort. [T. 339]. However, as long as she minimized her activities, and changed positions frequently, her pain was tolerable. Id. An examination revealed moderately restricted cervical and lumbar mobility. Id. Dr. Banks continued to recommend against any more than light lifting, and a very short duration of physical activities, which were long term restrictions. Id. He also recommended a permanent three pound lifting restriction, and he stated that he had detailed other restrictions on a workability form on that same date, but that form does not appear in the Record. Id.
Dr. Jorgenson's notes date from February 20, 2002, to August 28, 2002. [T. 347-350]. In February of 2002, the Plaintiff reported continued pain in her right shoulder, which he diagnosed as impingement of the right shoulder with a partial rotator cuff tear, and impingement of the left shoulder. [T. 349]. They discussed surgery, and the Plaintiff was supposed to contact him if she wanted to proceed with arthroscopy, which she subsequently did on April 23, 2002. Id. The arthroscopic surgery on her right shoulder was performed on June 5, 2002, without apparent complications. [T. 350]. She received follow-up care on June 18, 2002, July 3, 2002, and August 28, 2002. [T. 347-348]. She underwent physical therapy, and reported that she was doing well, and did not have any problems, other than the development of carpal tunnel syndrome in her right wrist. Id.
IV. Discussion
A. Standard of Review. The Commissioner's decision must be affirmed if it conforms to the law and is supported by substantial evidence on the Record as a whole. See,Title 42 U.S.C. § 405(g) ; see also, Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002); Qualls v. Apfel, 158 F.3d 425, 427 (8th Cir. 1998); Gallus v. Callahan, 117 F.3d 1061, 1063 (8th Cir. 1997). This standard of review is more than a mere search for the existence of evidence supporting the Commissioner's decision. See, Morse v. Shalala, 32 F.3d 1228, 1229 (8th Cir. 1994), citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488-91 (1951). Rather, the substantiality of the evidence must take into account whatever fairly detracts from its weight, see, Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998); Newton v. Chater, 92 F.3d 688, 692 (8th Cir. 1996), and the notable distinction between "substantial evidence," and "substantial evidence on the record as a whole," must be observed. See, Wilcutts v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998). On review, a Court must take into consideration the weight of the evidence, apply a balancing test, and determine whether or not substantial evidence in the Record as a whole supports the findings of fact upon which a Plaintiff's claim was denied. See, Loving v. Secretary of Health and Human Services, 16 F.3d 967, 969 (8th Cir. 1994); Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989).Substantial evidence means more than a mere scintilla; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See, Moad v. Massanari, 260 F.3d 887, 890 (8th Cir. 2001); Jackson v. Apfel, 162 F.3d 533, 536 (8th Cir. 1998); Black v. Apfel, 143 F.3d 383, 385 (8th Cir. 1998). Stated otherwise, "[s]ubstantial evidence is something less than a preponderance, but enough that a reasonable mind would conclude that the evidence supports the decision."Banks v. Massanari, 258 F.3d 820, 822 (8th Cir. 2001). Therefore, "`[i]f, after review, we find it possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, we must af-firm the denial of benefits.'" Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001), quoting Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1996); see also, Fenton v. Apfel, 149 F.3d 907, 910 (8th Cir. 1998); Scott v. Chater, 112 F.3d 367, 368 (8th Cir. 1997). Under this standard, we do not reverse the Commissioner even if this Court, sitting as the finder-of-fact, would have reached a contrary result. See,Harris v. Shalala, 45 F.3d 1190, 1193 (8th Cir. 1995);Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).
Consequently, the concept of substantial evidence allows for the possibility of drawing two inconsistent conclusions and, therefore, it embodies a "zone of choice," within which the Commissioner may decide to grant or deny benefits without being subject to reversal on appeal. See, Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994); see also, Haley v. Massanari, 258 F.3d 742, 746 (8th Cir. 2001) ("[A]s long as there is substantial evidence in the record to support the Commissioner's decision, we will not reverse it simply because substantial evidence exists in the record that would have supported a different outcome,Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995), or `because we would have decided the case differently.'"), quotingHolley v. Massanari, 253 F.3d 1088, 1091 (8th Cir. 2001). Our review of the ALJ's factual determinations, therefore, is deferential, and we neither reweigh the evidence, nor review the factual record de novo. See, Flynn v. Chater, 107 F.3d 617, 620 (8th Cir. 1997); Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996).
Where, as here, new evidence has been submitted to the Appeals Council, which the Council has examined in declining to review the ALJ's determination, our task is not fundamentally different, although the Record we review is expanded to incorporate the new evidence. On such occasions, the Appeals Council is to treat the new evidence as though it were a part of the Record before the ALJ, and "then review the case if it finds that the administrative law judge's action, findings, or conclusion [were] contrary to the weight of the evidence," which now includes the new evidence. Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992). Should the Appeals Council decline to review the case further, the reviewing Court's role is to "review the ALJ's decision and determine whether there [was] substantial evidence in the administrative record, which now includes the new evidence, to support the ALJ's decision." Id., quoting Browning v. Sullivan, 958 F.2d 817, 823 n. 4 (8th Cir. 1992); see also, Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994) (noting that the standard creates "a peculiar task for a reviewing court," because it asks the Court to decide how the ALJ would have decided the matter had this additional evidence been before him or her).
Thus, we are obliged to review all of the evidence, even the evidence that had never been considered by the ALJ, in order to determine whether the ALJ's decision was supported by substantial evidence in the Record as a whole. In such instances, the Court must "not evaluate the Appeals Council's decision to deny review, but rather * * * determine whether the record as a whole, including the new evidence, supports the ALJ's determination."Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000).
B. Legal Analysis. In support of her Motion for Summary Judgment, the Plaintiff advances the following arguments:
1. The ALJ and the Appeals Council Failed to Evaluate the Medical Evidence of Record Properly, and Failed to Consider All Medical Evidence Determining Disability.
2. The ALJ and the Appeals Council Erred by Failing to Afford Credibility to Plaintiff's Subjective Complaints of Pain and Failed to Recognize Plaintiff's Significant Impairments as Documented by Substantial Evidence on the Record as a Whole.
3. The ALJ Failed to Offer the Vocational Expert a Valid and Complete Hypothetical, the Answer to Which Could Serve as a Basis for a Finding of Vocational Incapacity.
We address each contention in turn.
1. Whether the ALJ and the Appeals Council Failed to Evaluate the Medical Evidence of Record Properly, and Failed to Consider All Medical Evidence Determining Disability.
The crux of the Plaintiff's argument is her assertion that the ALJ failed to accord appropriate weight to the opinions of her treating physicians, as to the severity of her physical impairments. She asserts that the ALJ erred by failing to find that her fibromyalgia, and her shoulder and arm pain, were severe, and by subsequently failing to consider the combined effect of those symptoms on her ability to do basic work activities.
a. Standard of Review. When a case involves medical opinion — which is defined as "statements from physicians and psychologists or other acceptable medical sources" — the opinion of a treating physician must be afforded substantial weight.20 C.F.R. § 416.927; see also, Burress v. Apfel, 141 F.3d 875, 880 (8th Cir. 1998); Grebenick v. Chater, 121 F.3d 1193, 1199 (8th Cir. 1997); Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1996); Miller v. Shalala, 8 F.3d 611, 613 (8th Cir. 1993); Onstead v. Sullivan, 962 F.2d 803, 805 (8th Cir. 1992); Kirby v. Sullivan, 923 F.2d 1323, 1328 (8th Cir. 1991). Nevertheless, an opinion rendered by a claimant's treating physician is not necessarily conclusive. An ALJ may discount a treating physician's medical opinion, and adopt the contrary medical opinion of a consulting physician, when the treating source's statements are conclusory, unsupported by medically acceptable clinical or diagnostic data, or when the ALJ's determination is justified by substantial evidence in the Record as a whole. See, Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997); Pena v. Chater, supra at 908; Ghant v. Bowen, 930 F.2d 633, 639 (8th Cir. 1991); Kirby v. Sullivan, supra at 1328; Ward v. Heckler, 786 F.2d 844, 846 (8th Cir. 1986).
The opinion of a treating physician may also be discounted if other assessments are supported by better, or by more thorough, medical evidence. See, Rogers v. Chater, supra at 602; Ward v. Heckler, supra at 846. In short, the ALJ is not required to believe the opinion of a treating physician when, on balance, the medical evidence convinces him otherwise. Id. As but one example, a treating physician's opinion is not entitled to its usual substantial weight when it is, essentially, a vague, conclusory statement. See, Piepgras v. Chater, 76 F.3d 233, 236 (8th Cir. 1996), citing Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991). Rather, conclusory opinions, which are rendered by a treating physician, are not en-titled to greater weight than any other physician's opinion. Id.; Metz v. Shalala, 49 F.3d 374, 377 (8th Cir. 1995).
The Code of Federal Regulations sets forth additional factors to assist the ALJ in determining what weight should be accorded to the opinion of a given physician, including a treating physician. The Regulations encourage the ALJ to afford more weight to those opinions which are "more consistent with the record as a whole." See, 20 C.F.R. § 416.927(d)(4). More weight is also to be extended to "the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist." See, 20 C.F.R. § 416.927(d)(5). When presented with a treating physician's opinion, the ALJ is obligated to examine the nature and extent of the treatment relationship, attributing weight to such an opinion that is proportionate to the knowledge that the medical provider has about the claimant's impairments. See, 20 C.F.R. § 416.927(d)(2) (ii). Further, the Regulations make clear that the opinions of treating physicians, on questions reserved for the Commissioner — such as whether a claimant is disabled, or is unable to work — are not to be given any weight by the ALJ. See, 20 C.F.R. § 416.927(e)(1).
b. Legal Analysis. The Plaintiff initially challenges the ALJ's findings that her fibromyalgia, and shoulder and arm pain, were non-severe impairments. Although the ALJ recognized that the medical records revealed a history of medical treatment for fibromyalgia, he noted that the Plaintiff "[did] not describe any specific pain or limitations based on her fibromyalgia." [T. 16]. Additionally, the ALJ observed that the Plaintiff continued to work, even with that diagnosis. Therefore, the ALJ properly found that her fibromyalgia was not a severe impairment. We further find that nothing in the additional evidence submitted to the Appeals Council has any bearing on the Plaintiff's fibromyalgia, and would not affect the ALJ's conclusion in that respect.
Second, we consider the Plaintiff's allegations of shoulder and arm pain. Elsewhere, the Plaintiff also asserts that the ALJ erred by finding that her neck condition was non-severe. Those assertions are wholly without merit, since the ALJ, in fact, did consider those conditions to be severe impairments. The ALJ specifically found that both spondylosis of the cervical spine, and abnormalities of the right rotator cuff, were severe impairments. [T. 18]. However, he found that her neck impairment did not have a duration of twelve continuous months, as required by the Regulations. See, Title 42 U.S.C. § 423(d)(1) (A) ; 20 C.F.R. § 416.922. He noted that the Plaintiff's cervical impairment had an onset date of February of 2001, and that, within the next twelve months following a neck fusion surgery in May of 2001, she reported that most of her pre-operative neck pain had resolved [T. 278], that her neck had really been doing well [T. 322], and that her neck was much better [T. 313]. [T. 22].
The evidence in the Record suggests that the Plaintiff's arm pain was related to her shoulder impairments. Therefore, we do not devote any separate consideration to it, outside of our discussion of her shoulder condition.
We note that the Plaintiff does not appear to challenge the ALJ's conclusions that her conditions did not last longer than twelve months, individually, and therefore, any such challenges have been waived. See, Craig v. Apfel, 212 F.3d 433, 437 (8th Cir. 2000) (finding that an argument, which is not articulated to the district court, is forfeited). In any case, we find that those conclusions were supported by substantial evidence in the Record as a whole.
He further found that the severe impairment of her right shoulder had been accommodated by the limitations in her RFC, and would not further impact on her abilities. [T. 22]. Although the Plaintiff complained of right shoulder pain as early as November of 2000, and was diagnosed with right rotator cuff tendinitis, she felt that it may have been related to her recent move. [T. 271]. A subsequent x-ray of the shoulder was negative, and the MRI revealed a normal right shoulder. [T. 264]. It was not until January of 2002 that Dr. Jorgenson first diagnosed her with a chronic impingement and a possible small rotator cuff tear of her right shoulder. [T. 313]. Based on the evidence before him, the ALJ appropriately considered the Plaintiff's shoulder condition a severe impairment, and his finding that the RFC sufficiently accommodated that condition was not erroneous.
Moreover, the evidence submitted to the Appeals Council did involve the Plaintiff's shoulder condition, but it does not bolster her argument. The Plaintiff underwent arthroscopic surgery on June 5, 2002, after which, and within twelve months of Dr. Jorgenson's diagnosis, she reported that she was doing well, and did not have any subsequent problems with it. [T. 347-348]. Therefore, the additional evidence did not undermine the ALJ's conclusions. We further find that, to the extent the Plaintiff challenges the ALJ's consideration of those impairments, both severe and non-severe, there is substantial evidence in the Record as a whole, which demonstrates that the RFC, as propounded by the ALJ, appropriately accounted for any limitations arising out of those impairments, either individually or in combination.
The Plaintiff does not challenge the non-severe designation of the Plaintiff's other ailments, which include her depression and irritable bowel syndrome. Again, any such contentions have now been waived. See, Craig v. Apfel, 212 F.3d 433, 437 (8th Cir. 2000) (finding that an argument, which is not articulated to the District Court, is forfeited).
Next, the Plaintiff asserts that the ALJ erred by failing to accord proper weight to the restrictions imposed by her treating physicians, and primarily Dr. Banks. Initially, Dr. Banks imposed permanent restrictions on lifting, carrying, pushing or pulling more than five pounds, total restrictions on bending, twisting, turning, kneeling, squatting, and overhead reaching, and a required ability to change positions every fifteen minutes. [T. 278]. Those restrictions were set by Dr. Banks on June 25, 2001, approximately six weeks after the Plaintiff's cervical spine surgery, and five months prior to her lumbar surgery. However, the ALJ found that those restrictions were inconsistent with the Record as a whole, since the Plaintiff reported improvement in her conditions, following each of her surgeries, and Dr. Banks later stated that the Plaintiff was to gradually progress in walking and light activities. [T. 23]. Because of this inconsistency, both within Dr. Banks' own records, and within the Record as a whole, we find that the ALJ did not err in deciding not to give controlling weight to the opinion of the Plaintiff's treating physician, Dr. Banks, as to her restrictions. See,Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000), citing Cruze v. Chater, 85 F.3d 1320, 1324-25 (8th Cir. 1996) (an ALJ may discount, or even disregard, the inconsistent opinions of a treating physician); see also,Haggard v. Apfel, 175 F.3d 591, 595 (8th Cir. 1999) (an ALJ may grant less weight to a treating physician's opinion when it conflicts with other substantial evidence in the Record).
The additional evidence submitted to the Appeals Council, which includes Dr. Banks' opinion that the Plaintiff should be limited to a permanent three pound lifting restriction, is likewise inconsistent with substantial evidence in the Record as a whole, and is not entitled to controlling weight. Id. Finally, although not raised by the Plaintiff, we note that Dr. Okerlund's opinion, that the Plaintiff's condition(s) met the definition of disability, and that he did not foresee her obtaining meaningful employment, was not entitled to deference, because it is a conclusory opinion, which addresses an issue reserved to the Commissioner. See, 20 C.F.R. § 416.927(e).
Thus, we find that the ALJ did not improperly discount the opinions of the Plaintiff's treating physicians. Having thoroughly considered and weighed all of the medical evidence before him, the ALJ analyzed the Plaintiff's impairments using the correct legal standards, and his conclusions were supported by substantial evidence in the Record as a whole, which includes the additional evidence submitted to the Appeals Council.
2. Whether the ALJ and the Appeals Council Erred by Failing to Afford Credibility to Plaintiff's Subjective Complaints of Pain and Failed to Recognize Plaintiff's Significant Impairments as Documented by Substantial Evidence on the Record as a Whole.
a. Standard of Review. The governing law makes clear that credibility determinations are initially within the province of the ALJ. Driggins v. Bowen, 791 F.2d 121, 125 n. 2 (8th Cir. 1986); Underwood v. Bowen, 807 F.2d 141, 143 (8th Cir. 1986). As a finding of fact, the determination must be supported by substantial evidence on the Record as a whole. See, Stout v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993).
To be legally sufficient, the ALJ must make an express credibility determination, must set forth the inconsistencies in the Record which led to the rejection of the Plaintiff's testimony, must demonstrate that all relevant evidence was considered and evaluated, and must detail the reasons for discrediting that testimony. See, Shelton v. Chater, 87 F.3d 992, 995 (8th Cir. 1996); Hall v. Chater, 62 F.3d 220, 223 (8th Cir. 1995); Ricketts v. Secretary of Health and Human Services, 902 F.2d 661, 664 (8th Cir. 1990). These requirements are not mere suggestions, but are mandates that impose affirmative duties upon the ALJ. Johnson v. Secretary of Health and Human Services, 872 F.2d 810, 814 n. 3 (8th Cir. 1989).
The mode and method by which an ALJ must make and support a credibility finding, on the basis of subjective symptoms, has been firmly established in the Eighth Circuit by Polaski v. Heckler, supra, and its progeny. See, e.g., Ostronski v. Chater, 94 F.3d 413, 418 (8th Cir. 1996); Shelton v. Chater, supra; Jones v. Chater, 86 F.3d 823 (8th Cir. 1996). Factors which the ALJ must consider, in the evaluation of the Plaintiff's subjective symptoms, include the Plaintiff's prior work record and the observations of third parties, and of physicians, concerning:
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.
Polaski v. Heckler, supra at 1321-22.
The ALJ must not only consider these factors, but he must list them and explain the resolution of any demonstrable conflict or inconsistency in the Record as a whole. Cf., Jones v. Chater, supra at 826; Delrosa v. Sullivan, 922 F.2d 480 (8th Cir. 1991); Carlock v. Sullivan, 902 F.2d 1341 (8th Cir. 1990).
It is well-settled that an ALJ may not disregard a claimant's subjective complaints of pain or other subjective symptoms solely because there is no objective medical evidence to support them.Ostronski v. Chater, supra at 418; Jones v. Chater, supra at 826; but cf., Johnston v. Shalala, 42 F.3d 448, 451 (8th Cir. 1995) (ALJ should consider absence of objective medical basis as a factor to discount the severity of a claimant's subjective complaints of pain). It is also firmly established that the physiological, functional, and psychological consequences of illness, and of injury, may vary from individual to individual. Simonson v. Schweiker, 699 F.2d 426 (8th Cir. 1983). For example, a "back condition may affect one individual in an inconsequential way, whereas the same condition may severely disable another person who has greater sensitivity to pain or whose physical condition, due to * * * general physical well-being is generally deteriorated." O'Leary v. Schweiker, 710 F.2d 1334, 1342 (8th Cir. 1983); see also,Landess v. Weinberger, 490 F.2d 1187 (8th Cir. 1974). Given this variability, an ALJ may discredit subjective complaints of pain only if those complaints are inconsistent with the Record as a whole. Taylor v. Chater, 118 F.3d 1274, 1277 (8th Cir. 1997); Johnson v. Chater, supra at 944.
Nevertheless, as the decisions of this Circuit make clear, the interplay of the Polaski factors in any given Record, which could justify an ALJ's credibility determination with respect to a Plaintiff's subjective allegations of debilitating symptoms, is multi-varied. For example, an individual's failure to seek aggressive medical care militates against a finding that her symptoms are disabling.Chamberlain v. Shalala, 47 F.3d 1489, 1494 (8th Cir. 1995);Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994);Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988). By the same token, "[i]nconsistencies between subjective complaints of pain and daily living patterns may also diminish credibility."Pena v. Chater, supra at 908; see also, Lawrence v. Chater, 107 F.3d 674, 676-77 (8th Cir. 1997) (ALJ may discredit complaints that are inconsistent with daily activities); Clark v. Chater, 75 F.3d 414, 417 (8th Cir. 1996); Shannon v. Chater, supra at 487. Among the daily activities, which counterindicate disabling pain, are: a practice of regularly cleaning one's house, Spradling v. Chater, 126 F.3d 1072, 1075 (8th Cir. 1997); Chamberlain v. Shalala, supra at 1494; cooking, id.; and grocery shopping, Johnson v. Chater, 87 F.3d 1015, 1018 (8th Cir. 1996). Although daily activities, standing alone, do not disprove the existence of a disability, they are an important factor to consider in the evaluation of subjective complaints of pain. Wilson v. Chater, 76 F.3d 238, 241 (8th Cir. 1996).
It is also settled law that, "when an ALJ fails to believe lay testimony about a claimant's allegations of pain, he should discuss the testimony specifically and make explicit credibility determinations." Prince v. Bowen, 894 F.2d 283, 286 (8th Cir. 1990); Smith v. Heckler, 735 F.2d 312, 317 (8th Cir. 1984) ("We have held that a failure to make credibility determinations concerning such evidence requires a reversal and remand"); but cf., Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992) ("While it is preferable that the ALJ delineate the specific credibility determinations for each witness, an `arguable deficiency in opinion-writing technique' does not require us to set aside an administrative finding when that deficiency had no bearing on the outcome."), citing Benskin v. Bowen, 830 F.2d 878, 883 (8th Cir. 1987).
b. Legal Analysis. The Plaintiff challenges the ALJ's determination that her subjective complaints of pain were not fully credible. The Plaintiff argues that the ALJ improperly rejected her testimony as to her limited daily activities, functional limitations, and past employment, and asserts that her subjective complaints of pain were consistent with the evidence in the Record as a whole.
The ALJ, while noting our Court of Appeals' instructions, inPolaski v. Heckler, supra, discredited the Plaintiff's subjective complaints of pain, and found significant inconsistencies in the Record as a whole. The ALJ found that the claimant's description of ongoing severe stabbing low back pain, following her surgeries, was "totally inconsistent with her post-operative follow up." [T. 20]. Similarly, her testimony that she only received 25 per cent relief following her neck surgery was inconsistent with her reports to her doctors. [T. 20]. The ALJ also considered that, at the time of the Hearing, the Plaintiff was not using any prescription pain-relief, and instead, relied on Tylenol. Finally, the ALJ noted that the Plaintiff's hobbies of crocheting, knitting, working on the computer, and reading, were inconsistent with her claims of radicular symptoms in her upper extremities.
We find that the ALJ properly discredited the Plaintiff's subjective complaints of pain. The ALJ thoroughly reviewed the Record, and found substantial inconsistencies in the Record on a whole, including discrepancies between the testimony of the Plaintiff at the Hearing, as compared to her reports to her doctors, her lack of strong pain medication at the time of the Hearing, notwithstanding a history of such prior use, and daily activities and hobbies that were inconsistent with her subjective complaints. "The ALJ is in the best position to gauge the credibility of testimony and is granted deference," Sarna v. Barnhart, 32 Fed.Appx. 788, 791 (8th Cir. 2002), and "[w]e will defer to the ALJ's findings," where, as here, "they are sufficiently substantiated by the record." Ramirez v. Barnhart, 292 F.3d 576, 581 (8th Cir. 2002). Nothing in the additional evidence submitted to the Appeals Council changes our conclusion in this regard, and we find no responsible basis to recommend a reversal on this ground.
3. Whether the ALJ Failed to Offer the Vocational Expert a Valid and Complete Hypothetical, the Answer to Which Could Serve as a Basis for a Finding of Vocational Incapacity.
a. Standard of Review. In determining the Plaintiff's RFC, and in framing an appropriate hypothetical for a VE, the ALJ need only include the limitations he accepted, as supported by substantial evidence. See, Pertuis v. Apfel, 152 F.3d 1006, 1007 (8th Cir. 1998); Rappoport v. Sullivan, 942 F.2d 1320, 1323 (8th Cir. 1991). Those facts are designed to replicate the Plaintiff's RFC, so as to allow the VE to identify jobs in the economy, if any there be, which an individual with functional limitations, like those of the Plaintiff, would be able to perform. See, Nelson v. Sullivan, 946 F.2d 1314, 1317 (8th Cir. 1991); Cline v. Sullivan, supra at 565.
Moreover, it is well-settled that the testimony of a VE, which is based upon a properly-phrased hypothetical question, constitutes substantial evidence. See, e.g., Howard v. Massanari, supra at 582; Warburton v. Apfel, 188 F.3d 1047, 1049 (8th Cir. 1999); Porch v. Chater, 115 F.3d 567, 571 (8th Cir. 1997). In order to rely upon a VE's opinion, however, the hypothetical posed "must fully set forth a claimant's impairments." Sullins v. Shalala, 25 F.3d 601, 604 (8th Cir. 1994), citing Totz v. Sullivan, 961 F.2d 727, 730 (8th Cir. 1992).
b. Legal Analysis. The Plaintiff argues that the ALJ's hypothetical was flawed, because he failed to accord proper weight to her treating physicians' opinions, and because he erroneously discredited her subjective complaints of pain. We have already determined that the ALJ thoroughly reviewed the Record, and properly considered the opinions of the Plaintiff's treating physicians. We have also found that his decision not to accord controlling weight to the work restrictions of Dr. Banks was appropriate, and that the ALJ did not err in discrediting the Plaintiff's subjective complaints of pain.
Further, the ALJ specifically found that the Plaintiff was severely impaired by spondylosis of the cervical spine, by abnormalities of the right rotator cuff, and by disc degeneration of the lumbar spine, which is consistent with the Record. Additionally, he considered the combined effect of those severe impairments, and the effect of her non-severe impairments. The ALJ accounted for those limitations both in the RFC, and in the hypothetical posed to the VE. [T. 23, 48-49]. The VE testified that the Plaintiff would be able to perform her past relevant work as a women's advocate, which was a sedentary job, and did not involve substantial lifting. [T. 49]. Although the Plaintiff argues that the VE's testimony, that unscheduled breaks would rule out that job, or any other type of competitive employment, the ALJ considered the effects of her irritable bowel syndrome, and decided that it did not impose any limitations upon the Plaintiff. It is well-settled that the ALJ need only include the limitations that he accepted, as supported by substantial evidence. See, Pertuis v. Apfel, supra at 1007; Rappoport v. Sullivan, supra at 1323. Accordingly, the ALJ's finding that the Plaintiff was not disabled, because she could perform her past relevant work, was supported by substantial evidence in the Record. Again, nothing in the evidence submitted to the Appeals Council suggests a contrary result. Therefore, finding no error in this, or in any other respect, we recommend that the Defendant's Motion for Summary Judgment be granted, and that the Plaintiff's cross-Motion be denied.
An ALJ may rely on a VE's testimony when it was elicited in response to a hypothetical question that accurately describes all of claimant's impairments that were supported by substantial evidence. See, Haggard v. Apfel, 175 F.3d 591, 595 (8th Cir. 1999) ("A hypothetical question `is sufficient if it sets forth the impairments which are accepted as true by the ALJ.'"), quoting Roberts v. Heckler, 783 F.2d 110, 112 (8th Cir. 1985); Andres v. Bowen, 870 F.2d 453, 455 (8th Cir. 1989).
NOW, THEREFORE, It is —
RECOMMENDED:
1. That the Plaintiff's Motion [Docket No. 8] for Summary Judgment be denied.
2. That the Defendant's Motion [Docket No. 10] for Summary Judgment be granted.