Opinion
Civil No. 00-2685 (JRT/AJB)
February 15, 2002
Daniel S. Rethmeier, Rethmeier Law Office, St. Cloud, MN. for plaintiff.
Lonnie F. Bryan, Assistant United States Attorney, Office of the United States Attorney, Minneapolis, MN, for defendant.
MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff Duane Kunkel brings this action against the Commissioner of Social Security seeking judicial review of the denial of his application for disability insurance benefits. The parties have filed cross-motions for summary judgment. In a report and recommendation dated October 19, 2001, United States Magistrate Judge Arthur J. Boylan recommended that the Court grant defendant's motion for summary judgment and deny plaintiff's motion for summary judgment. This matter is before the Court on plaintiff's objections to the report and recommendation.
The Court has reviewed de novo plaintiff's objections to the report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(C) and D. Minn. LR 72.1(c)(2). For the reasons set forth below, the Court overrules plaintiff's objections to the Magistrate Judge, grants defendant's motion for summary judgment and denies plaintiff's motion for summary judgment.
BACKGROUND
I. Procedural History
Plaintiff filed an application for disability insurance benefits on May 29, 1997. He alleged that he was disabled as a result of a herniated disc in his neck and a bulging disc in his lower back. Plaintiff's claim was denied both initially and on reconsideration. After making a timely request for administrative review, a hearing before the Administrative Law Judge ("ALJ") took place on May 28, 1998. On July 7, 1998, the ALJ issued a decision denying plaintiff's claim for benefits. Plaintiff filed a Request for Review, which was denied, thereby making the findings of the ALJ the final decision of the defendant. Thereafter, plaintiff timely filed this civil action seeking judicial review of the denial of benefits pursuant to 42 U.S.C. § 405(g).
II. Factual Summary
Plaintiff was born on July 7, 1954 and was 43 years old at the time of the administrative hearing. He has a high school degree and his past relevant work includes employment as a meat cutter, maintenance manager and auto mechanic. The administrative record contains the following medical evidence in support of plaintiff's disability claim.
In December 1993, plaintiff began seeing Dr. Thomas J. Balfanz, a specialist in rehabilitation medicine. Plaintiff reported a history of low back pain. Dr. Balfanz examined plaintiff and concluded that he suffered from chronic low back pain. Plaintiff underwent rehabilitation and in June 1994, Dr. Balfanz referred plaintiff for a functional capacity assessment. In August 1994, after reviewing the functional capacity assessment, Dr. Balfanz concluded that plaintiff did not require further treatment and recommended that plaintiff continue in his capacity as an auto mechanic.
In January 1995, plaintiff visited Dr. Michael Amaral for neck and left arm pain. An x-ray revealed a herniated disc on the left side at C6-7 impinging upon the C7 nerve root. Dr. Amaral concluded that plaintiff suffered from C7 radiculopathy and began plaintiff on a regimen of conservative treatment. Dr. Amaral continued to treat plaintiff until March 1995, when, at that time, he referred plaintiff back to Dr. Balfanz.
In April 1995, plaintiff visited Dr. Balfanz for his cervical spine issues, but also complained that his lower back was troubling him again. Dr. Balfanz diagnosed plaintiff with a herniated cervical disk at C6-7 with C7 radiculopathy, chronic low back pain and deconditioning syndrome involving the cervical spine musculature. Dr. Balfanz recommended at that time that plaintiff not return to his job as an auto mechanic and further opined that plaintiff's future may involve job retraining.
In June 1995, Dr. Balfanz noted improvement in plaintiff's strength but that plaintiff reported no improvement in pain. He recommended that plaintiff no longer work as an auto mechanic and referred plaintiff to get another Functional Capacity Assessment ("FCA"). A month later, plaintiff underwent a two-day functional capacity assessment. The physical therapist concluded that plaintiff's abilities would best meet the medium work demands as defined by the United States Department of Labor and Social Security Administration. Dr. Balfanz reviewed the FCA and, while concurring in the restrictions outlined by the physical therapist, added that plaintiff should avoid repetitive neck extension, wrenching with his arms, and bending or twisting over fenders. Dr. Balfanz concluded that plaintiff no longer needed intervention and could continue treatment at home.
In October 1995, plaintiff visited Dr. Robert Rafferty, the family physician, reporting low back pain and neck stiffness. Dr. Rafferty's assessment was consistent with prior evaluations — herniated cervical disc at C6-7 with C7 radiculopathy and chronic low back pain. He prescribed a return to physical therapy and Aleve. He further noted that plaintiff complained of having to stand all day at a new job and opined that plaintiff's future employment may require a job allowing a sit/stand option.
Plaintiff continued visiting Dr. Rafferty over the next several months. In January 1996, Dr. Rafferty noted that plaintiff's neck was satisfactory, but that his low back pain persisted. Dr. Rafferty prescribed the same functional restrictions as those outlined in the July 1995 FCA as supplemented by Dr. Balfanz.
In March 1996, plaintiff was examined by Dr. Dwight Jaeger at the request of Dr. Rafferty. Dr. Jaeger diagnosed plaintiff with chronic lumbar disc syndrome. He prescribed continued home exercise and the same functional restrictions as those outlined in the July 1995 FCA as supplemented by Dr. Balfanz.
In September 1996, plaintiff returned to Dr. Rafferty, who noted that a recent MRI reveals some disc protrusion at L4-5 with mild nerve root impingement. Dr. Rafferty further noted that, although plaintiff's low back pain remained unchanged, his neck pain had improved and his headaches were gone.
Plaintiff did not visit Dr. Rafferty until six months later. Plaintiff reported that he had been feeling better with chiropractic treatment until treatments were stopped in January 1997 because of nonpayment by Workers' Compensation. Dr. Rafferty wrote a note recommending further chiropractic treatment. A month later, plaintiff returned to Dr. Rafferty, reporting continued neck discomfort and low back pain. Dr. Rafferty concluded that plaintiff would be a good candidate for pain management program. In addition, Dr. Rafferty continued to recommend the same functional restrictions as outlined in the July 1995 functional assessment.
In May 1997, plaintiff visited Dr. L. Michael Espeland and received a lumbar epidural steroid injection, however, the injection did not help plaintiff's symptoms. In June 1997, Dr. Robert Hammerstrom, a state agency physician, reviewed plaintiff's medical file and concluded that plaintiff could perform medium work. In September 1997, Dr. Alan Suddard, another state agency physician, reviewed plaintiff's medical file and concurred with Dr. Hammerstrom's assessment.
In November 1997, plaintiff returned to Dr. Rafferty, reporting increase low back pain. Plaintiff reported that he applied for disability benefits and Dr. Rafferty opined that plaintiff fits some criteria for that and also noted that he cannot sit long enough to sit at a desk or do computer work.
At the administrative hearing, plaintiff testified that he had neck pain, which radiated into his left arm and back pain, which radiated into his left leg. According to plaintiff, his neck pain was 6-7 out of 10 and his back pain 8 out of 10 on a good day. On a bad day, his pain was 10 out of 10 for both. Plaintiff testified that he did some household chores, such as dish washing, vacuuming, grocery shopping (with his wife) and lawn mowing (with a self-propelled mower). He did not, however, do any chores on a bad day. Plaintiff further testified that he tried doing prescribed exercises, but they made matters worse and that water therapy failed to help. He takes Advil for his pain but other medications, such as Aleve, made him "woozy." Plaintiff testified that he could sit for 15-20 minutes but then had to stand or lie down; that he could stand for about 1/2 hour but then had to sit down. Plaintiff's wife also testified at the hearing and generally corroborated plaintiff's testimony.
III. Administrative Decision
Applying the five-step sequential analysis set forth in 20 C.F.R. § 404.1520, the ALJ first concluded that plaintiff had not engaged in the level of gainful activity that precluded a finding of disability. At step two, the ALJ concluded that plaintiff suffered from severe impairments, namely, "functional limitations associated with a herniated disk at C6-7 and degenerative disk disease of the cervical and lumbar spine." At the third step, the ALJ found that, while plaintiff's impairments were severe, they did not reach the degree necessary to warrant a presumption of disability pursuant to the regulations. Accordingly, the ALJ proceeded to assess plaintiff's residual functional capacity ("RFC"). Specifically, the ALJ found that plaintiff retains the functional capacity to perform light work, which, by definition, involves lifting no more than ten pounds frequently, twenty pounds occasionally, and walking and standing for no more than six hours in a normal work day. Giving plaintiff the full benefits of doubt as to his allegations, the ALJ further found that plaintiff is limited to jobs which would afford him the opportunity to alternate position every half hour, require him to climb, stoop, crouch or crawl only on an occasional basis and where he would not be expected to perform jobs which would require repetitive overhead reaching or fine manipulation. Based on this RFC, the ALJ concluded at step four that plaintiff could not perform his past relevant work. At step five, the ALJ concluded that plaintiff possessed the RFC to work as a service writer, security monitor, night security officer, assembler or inspector and that there were a significant number of these jobs in the national economy. Accordingly, the ALJ concluded that plaintiff was not disabled and denied his application for benefits.
The ALJ actually posed four separate hypotheticals to the vocational expert, each with increasing restrictions imposed on the hypothetical individual.
IV. Recommendation of the Magistrate Judge
Plaintiff challenged the ALJ's decision on three grounds, namely that, the ALJ: 1) improperly discounted the opinion of Dr. Rafferty, plaintiff's treating physician; 2) improperly discounted plaintiff's subjective complaints; and 3) presented the vocational expert with an improper hypothetical. The Magistrate Judge rejected each of these arguments, concluding that plaintiff's claim that the ALJ erred in discounting the opinion of plaintiff's treating physician was not well founded; that the ALJ had a substantial basis for discounting plaintiff's subjective complaints and that the ALJ posed a proper hypothetical to the vocational expert. Accordingly, the Magistrate Judge recommended that the Court grant defendant's motion for summary judgment and deny plaintiff's motion for summary judgment.
ANALYSIS
I. Standard of Review
The Court may reject the Commissioner's decision only if it is not supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g). The Court defers heavily to the findings and conclusions of the SSA. Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001). The possibility that the Court could draw two inconsistent conclusions from the same record does not preclude the decision from being supported by substantial evidence. Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994). The Court may not substitute its own judgment or findings of fact when reviewing the record for substantial evidence. Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). Nevertheless, the Court must consider the weight of the evidence in the record and balance evidence that is contradictory. Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987).
II. Plaintiff's Objections
In his objections, plaintiff raises the same arguments he raised before the Magistrate Judge in support of his motion for summary judgment. Specifically, plaintiff claims that: 1) the ALJ improperly discounted the opinion of Dr. Rafferty, plaintiff's treating physician in support of plaintiff's disability; 2) the ALJ improperly rejected plaintiff's subjective complaints; and 3) the ALJ posed an improper hypothetical to the vocational expert. The Court addresses each argument in turn.
A. Plaintiff's Treating Physician
Plaintiff objects to the Magistrate Judge's conclusion that the ALJ properly discounted the opinion of plaintiff's treating physician, Dr. Rafferty. Plaintiff argues that, as plaintiff's treating physician, Dr. Rafferty's opinion should be afforded substantial weight where supported by medically acceptable clinical or diagnostic data.
According to applicable regulations, the opinion of a treating physician must be given controlling weight if: 1) it is well-supported by medically acceptable clinical and laboratory diagnostic techniques; and 2) the opinion is not inconsistent with the other substantial medical and nonmedical evidence in the case record. 20 C.F.R. § 404.1527(d)(2). In his decision, the ALJ rejected Dr. Rafferty's opinion that plaintiff could not work because it was not supported by the overall evidence in the record and appeared to be based solely on the claimant's subjective complaints. Upon review of the record, the Court finds that the ALJ's determination discrediting Dr. Rafferty's opinions is supported by substantial evidence.
As the Magistrate Judge observed in his report and recommendation, Dr. Rafferty did not clearly opine in November 1997 that plaintiff was disabled but rather merely noted that plaintiff's condition fit "some of the disability criteria." Although Dr. Rafferty opined in an earlier report that plaintiff is "disabled for most work," (R. at 269), the ALJ was not required to grant this opinion controlling weight because 1) the issue of whether an individual is unable to work is a determination expressly reserved for the Commissioner, 20 C.F.R. § 404.1527(e)(1); and 2) the opinion was inconsistent with other substantial evidence in the record, including other record physician opinions and Dr. Rafferty's own treatment notes.
It is also noteworthy that the ALJ limited plaintiff to a residual functional capacity more restrictive than that opined by the record physician opinions. Rather than adopt the record physician opinions, which consistently concurred with the July 1995 functional capacity assessment or independently concluded that plaintiff could perform a range of medium work, the ALJ limited plaintiff's residual functional capacity to light work with a sit/stand option.
B. Plaintiff's Subjective Complaints
Plaintiff next argues that the ALJ failed to provide support for his negative credibility determination of plaintiff's subjective complaints. Upon review of the ALJ's decision and the record as a whole, the Court finds otherwise. In his decision, the ALJ listed all the relevant factors in making this determination and then proceeded to discuss those factors with the record evidence. R. at 23-25. The ALJ's discussion of the discrediting evidence demonstrates that he considered the required factors and relied on both the objective medical findings and other probative evidence to evaluate plaintiff's residual functional capacity. The ALJ's determination that plaintiff's complaints of disability were not fully credible is supported by substantial evidence and plaintiff's objection on this issue is thus overruled.
C. Hypothetical Based on RFC
Finally, plaintiff argues that because the ALJ improperly discounted the opinion of Dr. Rafferty and failed to provide proper support for his discrediting of plaintiff's subjective complaints, the ALJ erred in his determination of plaintiff's residual functional capacity and thus posed an improper hypothetical question to the vocational expert. However, as stated above, the Court finds no error in the above determinations and finds that the ALJ's RFC determination is supported by substantial evidence. The Court further finds, as did the Magistrate Judge, that one of the hypotheticals posed to the vocational expert matches the characteristics of the residual functional capacity. Consequently, no error in the hypothetical occurred and the testimony of the vocational expert in response to the hypothetical constitutes substantial evidence supporting the ALJ's decision that plaintiff was not disabled. Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995). Plaintiff's objection is thus overruled.
ORDER
Based on the foregoing, the submissions of the parties, and all of the files, records, and proceedings herein, the Court OVERRULES plaintiff's objections [Docket No. 12], and ADOPTS the Report and Recommendation of the Magistrate Judge [Docket No. 11].
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's Motion for Summary Judgment [Docket No. 6] is DENIED.
2. Defendant's Motion for Summary Judgment [Docket No. 9] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.