Opinion
Civil No. 03-5606 ADM/FLN.
March 22, 2005
George H. Smith, Esq., Trawick Smith, P.A., Minneapolis, MN, on behalf of Plaintiff Gerald L. Owens.
Lonnie F. Bryan, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of Defendant Jo Anne B. Barnhart.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge for consideration of the Objections of Gerald L. Owens ("Plaintiff" or "Owens") [Docket No. 26] to the February 15, 2005 Report and Recommendation ("RR") of Magistrate Judge Franklin L. Noel [Docket No. 23]. The RR recommends this Court uphold the Commissioner's final decision denying Owens' application for disability insurance benefits and Supplementary Security Income under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 405(g) and 1383(c)(3). The procedural and factual background, described in the RR, is incorporated by reference for review of the present Objections.
II. DISCUSSION
A. Standard of Review
The district court must undertake an independent, de novo, review of those portions of a RR to which objection is made and "may accept, reject, or modify, in whole or part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); see also D. Minn. LR 72.1(c)(2).
A reviewing court must affirm the Commissioner's decision if it is supported by substantial evidence contained in the record as a whole. 42 U.S.C. § 405(g); Holley v. Massanari, 253 F.3d 1088, 1091 (8th Cir. 2001). While less than the preponderance of the evidence standard, substantial evidence is enough that a reasonable mind would find it "adequate to support the Commissioner's conclusion." Holley, 253 F.3d at 1091. A reviewing court should consider evidence that both detracts from and supports the Commissioner's decision. Id. If the record contains substantial evidence supporting the Commissioner's determination, the court may not reverse the Commissioner's ruling even if it would have reached a different conclusion.Id.
B. Plaintiff's Objections
Plaintiff makes the following three objections to the RR's findings: (1) the administrative law judge ("ALJ") did not conduct a proper credibility analysis; (2) the ALJ determined Plaintiff could perform his past work as a cashier, as the work is generally performed in the national economy, without completing the comparative analysis required under Rule 202.00(f) of Appendix II; and (3) the ALJ erred by not applying Rule 202.06 of Appendix II. Each of Plaintiff's objections will be addressed in turn.
1. Credibility Analysis
Plaintiff objects to the RR's finding that the ALJ conducted a proper credibility analysis. Plaintiff contends the ALJ failed to consider all of the evidence required by Polaski v. Heckler in evaluating the credibility of his subjective complaints. 739 F.2d 1320, 1322 (8th Cir. 1984). In determining Plaintiff's residual functional capacity, the ALJ stated:
After careful consideration of the record, including the Claimant's testimony, the undersigned finds the Claimant retains the following residual functional capacity for work at a light exertional level, as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), with only occasional climbing, balancing, stooping, kneeling and crawling. The undersigned finds the Claimant's allegation credible that he does experience some shortness of breadth and limitations as a result of his impairments. However, the undersigned cannot find the Claimant fully credible that he is unable to engage in all work activity because of significant inconsistencies in the record as a whole.
Tr. at 18 (emphasis added). Plaintiff argues the ALJ discounted Owens' contention he was unable to engage in all work activity without conducting the Polaski analysis.
In Polaski, the Eighth Circuit set forth the factors an ALJ must consider when evaluating the credibility of subjective complaints:
The absence of an objective medical basis, which supports the degree of severity of subjective complaints alleged, is just one factor to be considered in evaluating the credibility of the testimony and complaints. The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant's prior work record, and observations by third parties and treating physicians relating to such matters as:
1. the claimant's daily activities;
2. the duration, frequency and intensity of the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of medication;
5. functional restrictions
The adjudicator is not free to accept or reject the claimant's subjective complaints solely on personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole.739 F.2d at 1322, quoting SR-82-58 (emphasis in original). See also Gray v. Apfel, 192 F.3d 799, 803 (8th Cir. 1999). Although the ALJ is not required to explicitly discuss eachPolaski factor, the ALJ must make an express credibility determination if he rejects a claimant's testimony, explaining the reasons for his decision. Brown v. Chater, 87 F.3d 963, 965 (8th Cir. 1996); Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000). The ALJ's credibility finding is entitled to considerable deference. See, e.g., Johnson v. Chater, 87 F.3d 1015, 1018 (8th Cir. 1996) (court will not substitute its opinion of the plaintiff's credibility for that of the ALJ).
The ALJ identified several inconsistencies in the record as a whole to support his determination that Plaintiff's assertions were not credible. Namely, the ALJ found: (1) the objective medical evidence supported the ALJ's residual functional capacity ("RFC") determination and was inconsistent with Plaintiff's testimony that he was completely unable to work; (2) the medical opinions in the record did not support Plaintiff's assertion of disability; (3) the objective medical evidence indicated Plaintiff's condition improved with medical treatment; (4) Plaintiff's daily activities were consistent with someone who has the RFC to complete light work; and (5) Plaintiff's work history and earnings record did not support his claims.
The objective medical evidence supports the ALJ's finding that Plaintiff could work at a light exertional level. Tr. at 19. Central to this conclusion was the ALJ's finding that Plaintiff's condition improved following the initiation of medical treatment in January 2001. Records dated August 2, 2001 indicate that, following medical therapy, Plaintiff exhibited "marked clinical improvement and echocardiographic improvement . . . and reduction in left ventricular diastolic dimension as well as reduction in mitral regurgitation to moderate grade." Tr. at 19, 129. Although Plaintiff presented to the emergency room on April 29, 2002 with shortness of breath, the records indicate this event occurred shortly after Plaintiff allowed his medication to lapse. Tr. at 19, 136. There is no record that Plaintiff has returned to the emergency room. Chest x-rays dated April 29, 2002 show "borderline congestive changes with no significant change since August 1, 2001 to suggest new active pulmonary disease." Tr. at 19, 141. This Court agrees with the RR's conclusion that the "objective medical evidence supports the ALJ's determination regarding the credibility of Plaintiff's allegations of total disability." RR at 12; see Polaski, 739 F.2d at 1322.
Although Plaintiff takes a variety of medications, including Prinivil, Metoprolo, Lipitor, Colchicine, and Allopurinol, the ALJ noted that Plaintiff experienced no side effects from these medications that would affect his RFC. Tr. at 19, 115. As the RR correctly stated, "[i]mpairments that are controllable or amenable to medication do not support a finding of total disability." RR at 12 (citing Kisling v. Chater. 105 F.3d 1255, 1257 (8th Cir. 1997)); see also 20 C.F.R. § 404.1529(c)(3)(i) (treatment history is an element of credibility). Accordingly, the ALJ was entitled to conclude from the objective medical evidence that Plaintiff's medical impairments limited him to some degree, but not to the extent Plaintiff alleged.
The ALJ also reasonably determined the medical opinions in the record were inconsistent with a finding of total disability. Tr. at 18-19. Plaintiff's treating physician, Dr. Durand E. Burns, stated that Plaintiff could perform light or medium physical exertion and lift up to 25 pounds. RR at 18,162. He also opined that Plaintiff's long-term cardiovascular prognosis was "quite good," provided he remained compliant with his medical regimen. Tr. at 18, 162. Dr. Frazin similarly testified Plaintiff was able to lift ten pounds frequently and twenty pounds occasionally, and that Plaintiff could stand or walk six hours if he could alternatively sit and stand. Tr. at 19. Finally, after reviewing his medical records, the State Agency Medical Consultants, Drs. Alan Suddard and Mario J. Zarama, found Plaintiff could perform light exertional work. Tr. at 19, 149-58. As a result, the ALJ properly concluded the medical opinions in the record support some limitations, not a finding of complete disability.
The ALJ also considered Plaintiff's daily work activities in assessing his credibility. Plaintiff testified that he cares for his apartment, does his own cooking, socializes with friends, attends church, does push-ups and sit-ups and can lift 25 pounds. Tr. at 19. These daily activities support the ALJ's finding that Plaintiff is capable of performing light exertional work.
Furthermore, the ALJ found Plaintiff's earnings record did not reflect a consistent work history. Since 1985, Plaintiff earned less than $1,000 per year in eight years and only once exceeded $10,000 in earnings. Although the earnings record indicates Plaintiff may have worked for several years prior to the instant hearing, the ALJ could reasonably conclude that the work history did not bolster Plaintiff's claims.
In rejecting Plaintiff's subjective complaint of total disability, the ALJ complied with Polaski's requirements by explicitly identifying the inconsistencies between Plaintiff's allegations and the objective medical evidence, opinion evidence and Plaintiff's daily activities. Where an ALJ explicitly provides sound reasons for discrediting testimony, a court must uphold that judgment unless it is not supported by substantial evidence on the record as a whole. Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992). Since substantial evidence on the record as a whole supports the ALJ's determination that Plaintiff's allegations of disability were not wholly credible, Plaintiff's objection must be denied.
2. Past Relevant Work
Plaintiff argues the ALJ erred by determining Plaintiff could perform his past work as a cashier, as the work is generally performed in the national economy, without completing the comparative analysis required under Grid Rule 202.00(f).
See 20 C.F.R. Pt. 404, Subpt. P., App. 2, Rule 202.06.
Grid Rule 202.00(f) states:
For a finding of transferability of skills to light work for individuals of advanced age who are closely approaching retirement age (age 60-64), there must be very little, if any, vocational adjustment required in terms of tools, work, processes, work settings or the industry.
Furthermore, when evaluating whether a claimant can return to past work, the ALJ is required to:
Specifically set forth the claimant's limitations, both physical and mental, and determine how those limitations affect the claimant's residual functional capacity. The ALJ must also make explicit findings regarding the actual physical and mental demands of the claimant's past work. Then, the ALJ should compare the claimant's residual functional capacity with the actual demands of the past work to determine whether the claimant is capable of performing relevant tasks.Ingram v. Chater, 107 F.3d 598, 604 (8th Cir. 1997), quoting Groeper v. Sullivan, 932 F.2d 1234, 1237 (8th Cir. 1991).
Plaintiff contends the ALJ simply concluded he was capable of performing his past work as a cashier as the work is generally performed in the national economy, rather than conduct the comparison and analysis required by the Eighth Circuit. In support of his position, Plaintiff cites to Finding No. 7, which states:
The claimant's past relevant work as a cashier as that job is generally performed in the national economy does not require the performance of work-related activities precluded by his residual functional capacity ( 20 C.F.R. §§ 404.1565 and 416.965).
Tr. at 21.
As the RR correctly noted, Social Security Ruling 82-61 allows the ALJ to consider how the claimant's past position is generally performed in the national economy. RR at 14; Tr. at 20. See also Evans v. Shalala, 21 F.3d 832, 833-34 (8th Cir. 1994); 20 C.F.R. § 404.1560(b)(2) (past relevant work considered "either as the claimant actually performed it or as generally performed in the national economy"). The Record reflects the vocational expert ("VE") testified that, although Plaintiff was unable to return to his cashier position because it required heavy lifting, the cashier position, as it is generally performed in the national economy, is defined at a light exertional level. As a result, the VE concluded that Plaintiff's RFC made him capable of performing as a cashier, as the position is generally performed in the national economy.
Plaintiff's objection that the ALJ erred by baldly concluding he could work as a cashier as the position is generally performed in the national economy is unfounded. The ALJ was entitled to rely on the VE's testimony that the Dictionary of Occupational Titles ("DOT") described the cashier position as light. See Cruze v. Chater, 85 F.3d 1320, 1326 (8th Cir. 1996) (VE's response to accurate hypothetical is substantial evidence supporting the ALJ's decision). Furthermore, Plaintiff's attorney asked the VE whether the cashier position, as it is performed nationally, would provide for direct transferability of skills and allow Plaintiff to enter directly into those jobs without significant additional training. The VE responded that Plaintiff could "absolutely" enter into these jobs without training. Tr. at 205. The ALJ's determination also examined Plaintiff's current physical and mental limitations (Tr. at 17-18) and determined how the limitations affect his RFC (Tr. at 19). Finally, the ALJ's determination explicitly compared Plaintiff's RFC with the actual demands of past work to determine whether he was capable of performing relevant tasks:
[The VE] acknowledged that the claimant previously had lifted up to seventy-five pounds when he had performed the cashier job, and that he could not do the job as he had previously performed it. However, the DOT defines the cashier job (DOT Code 211.462-010) as at a light exertional level, and the claimant's residual functional capacity is fully consistent with the limitations as defined and as that job is generally performed. (Social Security Ruling 82-61). Tr. at 20.
Furthermore, the Court finds Rule 202.00(f) is inapplicable to Plaintiff's determination. As the RR correctly states, a five-step sequential process outlined in 20 C.F.R. §§ 404.1520 and 404.920 is applied to determine whether an applicant is entitled to disability benefits. RR at 8, 15. Under the five-step process, the claimant bears the burden of demonstrating he is unable to perform his past relevant work. This burden applies through step four, at which point it shifts to the Commissioner to establish the applicant possesses the RFC to perform a significant number of jobs in the national economy.See Singh, 222 F.3d at 451. For claimants with exertional impairments, the Commissioner can satisfy his burden by applying the medical-vocational guidelines, or "Grids." Gray, 192 F.3d at 802. Grids are fact-based generalizations concerning the availability of jobs for people of varying ages, educational backgrounds, and previous work experience with varying degrees of exertional impairment. Id. (citations omitted). VE testimony is required under step five only when the claimant has nonexertional impairments. Pearsall v. Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001) (citations omitted).
As both the RR and Defendant note, effective September 25, 2003, the Social Security Administrations revised and reorganized the regulations at 20 C.F.R. §§ 404.1520 and 404.920. 68 Fed. Reg. 51153, 51161-62 (2003). The modifications did not substantively alter the sequential process and, for consistency with the RR, the Court will cite the regulations that were in effect at the time of the ALJ's decision. See RR at 8.
The ALJ was not required to apply Rule 202.00 to Plaintiff's case. See Hunt v. Heckler, 748 F.2d 478, 479-80 (8th Cir. 1984). The Grid Rules apply only to step five of the analysis. As Plaintiff failed to carry his burden of showing he was unable to perform his past relevant work as the position was performed in the national economy, the ALJ concluded his analysis at step four of the sequential process. As a result, the Grids are inapplicable to the ALJ's determination of whether Plaintiff was disabled under the Act. Even if the Grids were applicable, however, the VE testified that Defendant "absolutely" could perform the cashier position, as it is performed in the national economy, without additional training. Tr. at 205. Therefore, this Court finds the ALJ did not err in assessing Plaintiff's past relevant work.
3. Rule 202.06
Plaintiff contends the ALJ erred by not applying Rule 202.06, which requires the ALJ to consider the transferability of skills to light work for individuals of advanced age. Plaintiff argues application of Grid Rule 202.06 would have mandated a finding that Plaintiff was disabled. Plaintiff claims it was error for the ALJ to conclude he could return to his past work when he had testified his past work involved lifting heavy objects and stocking shelves, activities categorized as medium work.
See 20 C.F.R. Pt. 404, Subpt. P. App. 2, Tbl. 2, Rule 202.06.
As previously discussed, Grid Rules are only applicable if the claimant carries the burden of showing he is unable to perform his past relevant work experience. Since the ALJ properly concluded Defendant could perform the cashier position, as it was generally performed in the national economy, Rule 202.06 is inapplicable to the ALJ's determination of whether Plaintiff was disabled under the Act.
III. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:1. Judge Noel's RR [Docket No. 23] is ADOPTED in its entirety;
2. Plaintiff's Objections to the RR [Docket No. 26] are DENIED;
3. Plaintiff's Complaint [Docket No. 1] is DISMISSED WITH PREJUDICE; LET JUDGMENT BE ENTERED ACCORDINGLY.