Opinion
No. 02-228 (JRT/RLE)
March 10, 2003
James I. Roberts, LAW OFFICE, St. Cloud, MN, for plaintiff.
Lonnie F. Bryan, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Minneapolis, Minnesota, for defendant.
ORDER ADOPTING THE REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Plaintiff Sergio G. Rodriguez seeks judicial review of the Commissioner of Social Security's ("Commissioner") denial of his application for disability insurance benefits. The parties have filed cross-motions for summary judgment. In a Report and Recommendation dated January 24, 2003, United States Magistrate Judge Raymond L. Erickson 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 the 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 adopts the adopts the Report and Recommendation of the Magistrate Judge, grants defendant's motion and denies plaintiff's motion for summary judgment.
BACKGROUND
The Magistrate Judge discussed the facts of this case at length. Rather than repeat that discussion, the Court adopts the factual summary and incorporates it herein by reference. The following is a brief summary of the facts relevant to plaintiff's objections. Plaintiff first applied for disability insurance benefits and supplemental security income in 1997. He was granted benefits for a closed period of disability-from January 23, 1997 to October 12, 1998. Plaintiff then applied for disability insurance benefits on July 27, 1999, claiming that injuries sustained on January 23, 1997 to his lower back had left him disabled since October 12, 1998. Plaintiff's claim was denied after initial review, and he requested a hearing, which was held on July 11, 2000. Plaintiff testified at this hearing, as did vocational expert ("VE") Wayne Onkon, medical expert ("ME") Dr. James F. Hammarstein, and plaintiff's wife, Laura Rodriguez. In a decision dated July 28, 2000, the Administrative Law Judge ("ALJ") denied plaintiff's application. The ALJ's decision became the final decision of the Commissioner when plaintiff's request for further administrative review was denied.
I. Hearing
At the hearing, the ALJ questioned the ME and the VE based upon their respective examinations of the record. The ME opined that the record supported a finding that plaintiff's back met the level of severity of a listed impairment at the time of the surgery, and for six months following the surgery. The ME further testified, however, that based on the existing record, plaintiff was able to do light duty work, with only occasional bending and twisting, and only moderate levels of concentration.
A hypothetical was presented to the VE that inquired whether an individual of plaintiff's age, experience, and background, and subject to plaintiff's restrictions, could perform any work existing in significant numbers in the national economy. The VE identified three types of jobs-hand packaging, small parts assembly, and bench assembly-which fit the hypothetical restrictions and which exist in significant numbers in the national economy.
II. ALJ Decision
In determining whether plaintiff is disabled, the ALJ followed the five-step analysis codified at 20 C.F.R. § 404.1520. First, the ALJ determined that plaintiff has not engaged in substantial gainful activity since the alleged onset of his disability. Second, the ALJ found that plaintiff's back disease and surgeries constitute a "severe" impairment that limits his ability to perform basic work activities. Third, the ALJ determined that plaintiff's impairment does not meet or equal an impairment set forth in the regulations.
The ALJ proceeded to determine if plaintiff has the capacity to return to his past relevant work or to perform any work existing in significant numbers in the national economy. In determining plaintiff's residual functional capacity, the ALJ gave consideration to the medical evidence, as well as to plaintiff's subjective complaints of pain. He found that plaintiff did suffer from back pain, but found that plaintiff's allegations of being unable to work were inconsistent with the records of his treating physicians, his own stated level of daily activity, and the testimony of his wife regarding his daily activities. The ALJ concluded, based in part on the opinions of the VE and ME, that plaintiff retains residual functional capacity to perform work that exists in significant numbers in the national economy.
ANALYSIS
Plaintiff now objects to the Magistrate Judge's conclusion that substantial evidence supports a finding that plaintiff did not meet the Listing 1.05(C), Disorders of the Spine. Listing 1.05(C) provides that an individual is disabled if he or she has the following impairments:
Other vertebrogenic disorders (e.g., herniated nucleus puplosus, spinal stenosis) with the following persisting for at least 3 months despite proscribed therapy and expected to last 12 months. With both 1 and 2:
1. Pain, muscle spasm, and significant limitations of motion in the spine; and
2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.
20 C.F.R. pt. 404, subpt. P, App.1., § 1.05(C).
Since the Commissioner's decision became final in this case, new regulations were issued. The Court reviews the Commissioner's decision according to the rules in place at the time the decision was made. See 66 Fed. Reg. 58011.
The Magistrate Judge recommended that the ALJ's conclusion be upheld because it was supported by substantial evidence in the record as a whole. In sum, the Magistrate Judge suggested that even if plaintiff met the criteria in element one, he did not satisfy the next element, and therefore did not meet the Listing. Specifically, the Magistrate Judge pointed to uncontroverted medical evidence that plaintiff had "normal motor control and gait" upon examination by plaintiff's treating physician. The Magistrate Judge also noted that the treating physician found plaintiff's reflexes to be normal, and that plaintiff was able to walk toe to heal in repeated examinations.
I. Standard of Review
The Court may reject the ALJ's decision only if it is not supported by substantial evidence on the record as a whole. Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994); 42 U.S.C. § 405(g). Even if the Court might have weighed the evidence differently, it may not reverse the decision when there is enough evidence in the record to support either outcome. Culbertson, 30 F.3d at 939; Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992).
Plaintiff's objection focuses on the third of the five-step analysis-specifically, he objects to the conclusion that his impairments do not satisfy Listing 1.05(C). "For a [plaintiff] to show that [his] impairment matches a listing, it must meet all of the specified medical criteria." Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis added); Marciniak v. Shalala, 49 F.3d 1350, 1353 (8th Cir. 1995) (quoting Sullivan). If the plaintiff suffers from an impairment that is included in the listings he or she will be determined disabled without considering age, education, or work experience. Braswell v. Heckler, 733 F.2d 531, 533 (8th Cir. 1984).
II. Record Evidence
Plaintiff argues that the record evidence supports a finding that he meets the criteria set out in Listing 1.05(C). He points out that an orthopedic surgeon and a physiatrist rated plaintiff with 24% and 27% permanent partial disability. Plaintiff also points to medical evidence that six weeks after his back surgery, an Evoked Potential Study indicated a latency in his lower extremity nerve distribution.
The Court does not question the presence or content of this evidence; however, the Court notes that this evidence indicates plaintiff's condition during a previous period of disability. The relevant question in the current process is whether plaintiff still exhibits those symptoms and therefore remains presumptively disabled pursuant to the criteria in Listing 1.05(C).
As noted above, plaintiff received disability insurance benefits and supplemental security income from January 23, 1997 to October 12, 1998.
The Court's review of the administrative record reveals insufficient medical evidence that plaintiff meets the second element of Listing 1.05(C). There are simply insufficient medical findings that would allow the Court to determine that plaintiff's condition is comparable in kind or severity to that required by the Listing.
One of plaintiff's treating physicians, Dr. Dirck Curry, examined plaintiff on December 16, 1999 and found that plaintiff's "lower extremities have bilateral equal deep tendon reflexes with appropriate motor control and gait, equal strength in the upper extremities, slightly weaker strength in the left lower extremity on toe raising. His gait is good bilaterally." (Record "R." at 635.) Upon examination on January 13, 2000, Dr. Curry found that plaintiff's "motor control and gait are appropriate" but noted that plaintiff experienced "weakness" in the right leg. (R. at 633.) Curry also noted that plaintiff's toe raise was stronger on the left than right, and noted sensation was "duller to the right side than the left." (R. at 633.) Plaintiff's gait and motor testing were normal at exams on May 20, 1999 (R. at 594); April 27, 1999 (R. at 604); and June 14, 1999 (R. at 620).
"Record" refers to the transcript of the administrative law hearing and all documents relating to the case.
The ALJ's decision is also supported by the opinion of the ME, who opined that plaintiff no longer met the requirements of Listing 1.05(C). The ME further noted that plaintiff was not restricted from working light duty jobs, provided plaintiff would be able to change physical positions (from sitting to standing) regularly. In addition, two state physicians reviewed the record and did not find plaintiff's condition severe enough to keep him from working. (R. at 458-61; R. at 462-65.)
From the foregoing, the Court determines that the ALJ's determinations were supported by substantial evidence and therefore plaintiff's objections are overruled.
ORDER
Based on the foregoing of all the records, files, and proceedings herein, the Court OVERRULES plaintiff's objections [Docket No. 21] and ADOPTS the Magistrate Judge's Report and Recommendation [Docket No. 20].
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's Motion for Summary Judgment [Docket No. 15] is DENIED.
2. Defendant's Motion for Summary Judgment [Docket No. 18] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.