Opinion
CASE NO. 8:02CV411
August 18, 2003
MEMORANDUM AND ORDER
This matter comes before the Court on the denial, initially and on reconsideration, of the Plaintiff's disability insurance ("disability") benefits under the Social Security Act ("Act"), 42 U.S.C. § 401-433, and supplemental security income ("SSI") benefits under Title XVI of the Act, 42 U.S.C. § 1381-1383. The Court has carefully considered the record and the parties' briefs.
PROCEDURAL BACKGROUND
The Plaintiff, Leonard Sullivan, filed his initial applications for Disability and SSI benefits on March 3, 1998. (Tr. 16.) The claims were denied initially (Tr. 60, 62-65, 377-82) and on reconsideration (Tr. 61, 68-73, 383). An administrative hearing was held before Administrative Law Judge ("ALJ") Emily Cameron Shattil on May 4, 1999. (Tr. 35-59.) On July 19, 1999, the ALJ issued a decision finding that Sullivan can perform his past relevant work as a photocopy machine operator and is not "disabled" within the meaning of the Act. Therefore, the ALJ concluded that Sullivan is not eligible for either disability or SSI benefits. (Tr. 28.) On July 8, 2002, after considering additional evidence (Tr. 384-433), the Appeals Council denied Sullivan's request for review. (Tr. 6-8.) Sullivan now seeks judicial review of the ALJ's determination as the final decision of the Defendant, the Commissioner of the Social Security Administration ("SSA"). (Filing No. 1.)
Sullivan claims that the ALJ's decision was incorrect in several respects. The issues briefed by Sullivan are summarized as follows: 1) the ALJ posed an improper hypothetical to the vocational expert; and 2) substantial evidence does not support the ALJ's conclusion; and 3) the ALJ failed to follow Social Security Ruling 82-59. The Commissioner phrased the issues somewhat differently: 1) whether the ALJ properly assessed Sullivan's credibility; and 2) whether substantial evidence supported the conclusion that Sullivan can perform his past relevant work as a photo copy machine operator.
Upon careful review of the record, the parties' briefs and the law, the Court concludes that the ALJ's decision denying benefits is supported by substantial evidence on the record as a whole. Therefore, the Court affirms the Commissioner's decision.
FACTUAL BACKGROUND
Sullivan is now forty-seven years old. (Tr. 17.) He has a high school education, and he completed one year of college and a nine-month course in automobile mechanics. (Tr. 38-39.) Sullivan was in the military, and he received an honorable discharge. (Tr. 39-40.) Sullivan last worked on January 23, 1997 as a credit card clerk. (Tr. 40.) Other occupational experience included work as a secretary, file clerk, mail clerk, and x-ray clerk. (Tr. 41-42.) Since January 23, 1997, Sullivan has not engaged in any substantial gainful employment. (Tr. 40.)
Sullivan's Testimony
At the hearing, Sullivan testified that he experienced poor vision and had laser surgery on his eyes. (Tr. 43.) The ALJ expressed the inability to reconcile a doctor's report indicating that Sullivan could read fine print with Sullivan's statement that he could not do so. (Tr. 43-45.) Another inconsistency noted was the indication in Sullivan's medical records that his vision had improved since his laser surgery with Sullivan's own assertion that it had not improved. (Tr. 45.) The ALJ also noted that reports did not indicate whether the reported vision was for corrected or uncorrected eyesight. (Tr. 46.) Sullivan's attorney agreed to obtain additional medical records addressing these issues. (Tr. 44-45, 46.) Sullivan testified that he cannot read the newspaper, highway signs, billboards, or anything with fine print. (Tr. 46-47.) Sullivan testified that while he can walk without assistance inside and outside of his home, taking a bus is problematic due to his inability to see whether he would be getting on the right bus or to read the street signs and know when to get off the bus. (Tr. 47-48.) Sullivan stated that he does not clean due to his back and vision problems. (Tr. 48-49.)
Sullivan lives with his wife and three children, who were ages four, twelve and fifteen at the time of the hearing. (Tr. 49.) Sullivan testified that he watches his four-year old daughter, but he has problems getting around and vision problems that interfere with his ability to do so. (Tr. 49-50.)
Sullivan testified that he experiences mental problems, including suicidal thoughts and an inability to deal with authority. (Tr. 50.) He stated that he experiences a short attention span and is bothered by noise. (Tr. 50-51.) Sullivan testified that he cannot lift more than ten pounds, yet the ALJ noted that the record indicated the ability to lift fifty pounds. (Tr. 51.) Sullivan stated that he can stand or sit for thirty minutes and walk for two blocks. (Tr. 52.) Sullivan also described difficulty bending, stating that he needed help in dressing himself. (Tr. 53.) Sullivan does not drive. (Tr. 54.)
Sullivan described his position as copy machine operator, stating that the job includes resolving paper jams and adding toner. (Tr. 55.)
Vocational Expert's Testimony
Testimony was also heard from a vocational expert ("VE"), Anita Howell, under contract with the Social Security Administration. (Tr. 54-58.) The VE was told to assume that Sullivan was forty-one upon onset of disability, earned a high school education together with a certificate showing completion of a nine-month automobile mechanic program, has diabetes with resulting eye problems, and experiences back problems as testified to by Sullivan. The VE also assumed that Sullivan: cannot read fine print; needs a job that does not require exposure to the public or close contact with coworkers and requires only occasional encounters with supervisors; has slight restrictions in daily living activities, minor difficulty in social functioning, and frequent deficiencies in concentration; has the ability to lift fifty pounds occasionally and twenty-five pounds frequently; can walk and stand six out of eight hours and cannot use ladders, ropes or scaffolds; has limited near and far acuity, depth perception and field of vision; and must avoid concentrated exposure to extreme cold and avoid hazards. (Tr. 56-57.) With those restrictions, the VE opined that Sullivan can return to his past relevant work as a copy machine operator. (Tr. 57.) The VE noted that, in order to perform this job, Sullivan would only have to see well enough to see impressions made by the machine on the copy paper, the parts of the machine in the paper path, and the levers in the event of a paper jam. She specifically noted that Sullivan would not have to see well enough to read the materials being copied. (Tr. 57-58.) The VE then opined that, absent these visual abilities, Sullivan would not be able to perform other jobs available in the national economy.
Anita Howell's credentials are in the record. (Tr. 79-83.)
Documentary Evidence Before the ALJ
In addition to oral testimony, the ALJ considered numerous pieces of documentary evidence including, but not limited to, medical records and questionnaires completed by Sullivan and his wife.
Medical Records
On September 23, 1996, Sullivan was hospitalized with complaints of chest pain. (Tr. 160-76.) The impression was musculoskeletal chest pain together with very poorly controlled diabetes. (Tr. 160-170.) Sullivan also complained of depression, and stated that he drank to relieve the stress encountered at work. (Tr. 160.) Upon discharge, Sullivan was told to obtain the appropriate device and check his blood sugar twice a day. He was also given a diet and told to follow a daily exercise regimen. (Tr. 161.)
On September 10, 1997, Sullivan was referred for evaluation of his diabetes to William C. Duckworth, M.D., an endocrinologist at the University of Nebraska Medical Center ("UNMC"). (Tr. 217-20.) Several complications were noted. Dr. Duckworth discussed with Sullivan the interplay between his depression and blood sugar control. It was noted that Sullivan had "very little understanding, knowledge or appreciation of his disease." (Tr. 219.) Sullivan had been taking insulin but not checking his blood sugar. (Tr. 218.)
On October 16, 1997, Dr. Duckworth was concerned by the extreme swings in Sullivan's blood glucose levels. Dr. Duckworth noted that Sullivan showed "little insight into his disease." (Tr. 214.) Dr. Duckworth did not know whether Sullivan's poor control over his diabetes was due to depression or to other factors. (Tr. 214.) Dr. Duckworth told Sullivan that dealing with his depression would also improve his diabetic condition. (Tr. 217.)
On November 13, 1997, Sullivan was seen again by Dr. Duckworth for followup treatment. (Tr. 211-12.) Dr. Duckworth noted that, while Sullivan had experienced extremely erratic blood glucose levels, he had not experienced negative symptoms. Considering all factors, Dr. Duckworth found that, in general, Sullivan's blood glucose were "pretty well controlled." (Tr. 211.)
On January 16, 1998, David M. Chacko, M.D., Ph.D., an ophthalmologist and the Director of Retina Service at UNMC, noted that Sullivan was status post pan retinal photocoagulation in both eyes for proliferative diabetic retinopathy. According to Dr. Chacko, Sullivan's decreased visual acuity, then 20/80 and 20/80-1, OD (right eye) and OS (left eye), respectively, was due to diabetic macular edema (Tr. 206-07).
"Retinopathy" is defined as a "[n]oninflammatory degenerative disease of the retina." Stedman's Medical Dictionary, 1560 (27th ed. 2000).
By way of comparison, on December 19, 1996, Sullivan's vision in both eyes measured 20/50. (Tr. 226-27.)
On March 3, 1998, an SSA field representative noted that Sullivan wore glasses. In addition, Sullivan "was able to sign his own forms, etc." (Tr. 115.) On March 9, 1998, Sullivan underwent surgery to correct proliferative diabetic retinopathy with cystoid macular edema in the left eye. (Tr. 180-82.)
On May 1, 1998, Barbara C. Schuett, M.A., a clinical psychologist, conducted a psychological assessment of Sullivan. (Tr. 183-87.) Ms. Schuett noted that Sullivan reported feeling suicidal and homicidal in November 1997, and therefore Dr. "Mangleson" gave him a 30-day supply of Zoloft. Ms. Schuett concluded that Sullivan was not on any medication at the time of her assessment. Ms. Schuett also noted that Sullivan's records revealed an earlier depressive episode that led to his admission to the Veterans' Affairs Medical Center ("VAMC"). (Tr. 184.) At the interview, despite some hesitancy and lack of spontaneity, Sullivan was oriented and cooperative in providing information, and his attitude was appropriate. He spoke in a goal-directed manner without rambling. (Tr. 185.) Sullivan's mood was depressed and his affect was bland. (Tr. 185.) He showed no evidence of psychosis, did not appear tense or anxious, and showed no agitation. There was a suggestion of substance abuse, apparently in the past. Sullivan's intelligence was average, his memory was adequate, and his judgment and insight were appropriate. (Tr. 185.) Ms. Schuett opined that Sullivan could concentrate and complete tasks. Ms. Schuett wrote that, although Sullivan could understand and remember short and simple instructions, he would not be successful in a working environment without successful treatment for depression. Ms. Schuett also noted that, because Sullivan was easily angered and upset, he would have difficulty relating to coworkers and supervisors. Ms. Schuett's diagnostic impression at Axis I was major depressive disorder, severe, without psychotic features; alcohol abuse, sustained full remission; and avoidant personality disorder. Sullivan's Global Assessment of Functioning ("GAF") score was in the range of 40 to 50. (Tr. 186.)
Ms. Schuett's qualifications are in the record. (Tr. 303.)
Probably Thomas Magnuson, M.D. (Tr. 339.)
According to an August 10, 1998, intake evaluation, in 1994, Sullivan reported mixing alcohol with an overdose of sedatives. (Tr. 189.)
"GAF" refers to the "Global Assessment of Functioning Scale," a rating of overall psychological functioning. While 40 potentially indicate major impairment in areas including work, the 41-50 range indicates "serious symptoms," e.g. suicidal ideation, or serious impairment in social or occupational functioning, e.g. inability to hold a job. American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000).
On July 8, 1998, Sullivan was admitted to the hospital due to complaints of substernal pressure for four hours, with radiation to his back, knees and somewhat to his left shoulder. (Tr. 192-203.) A dobutamine stress echocardiogram revealed no significant findings. (Tr. 192, 198-99.) The primary concern was Sullivan's failure to manage his diabetes, and he was educated as to proper management of his disease, diet, weight reduction and exercise. (Tr. 192-93, 201-03.)
On August 10, 1998, William J. Michael, M.D., a resident psychiatrist at UNMC, conducted a psychiatric intake evaluation of Sullivan. (Tr. 189-91, 336-38.) Sullivan reported that Sullivan had failed to follow-up with Dr. Magnuson as suggested regarding his psychiatric condition, and that Sullivan's endocrinologist, Dr. Duckworth, prescribed Zoloft for him. (Tr. 189, 339.) The mental status examination revealed fairly spontaneous responses and a cooperative attitude, with minimal eye contact at times. Sullivan's mood was mild to moderately dysphoric, with mood congruent affect. His speech was rambling and had to be redirected. Sullivan displayed no suicidal or homicidal ideations, and he reported no auditory or visual hallucinations, delusions, paranoia, or suspiciousness. He was alert and oriented, showing good short-term memory and concentration. Sullivan displayed an adequate fund of knowledge and a fair abstract ability. Dr. Michael's Axis I assessment was provisional major depressive disorder, recurrent. (Tr. 190.) Sullivan's GAF was 60. (Tr. 190.) Dr. Michael increased Sullivan's Zoloft dosage on a trial basis and prescribed Trazodone for insomnia. (Tr. 191.) Sullivan was to return to the UNMC clinic in two weeks for further evaluation of his depressive symptoms and medication and to begin therapy. (Tr. 191.)
A GAF of 51-60 suggests moderate symptoms, e.g., flat affect and circumstantial speech, occasional panic attacks, or moderate difficulty in social, occupational, or school functioning, e.g. few friends, conflicts with peers or co-workers. American Psychiatric Ass'n, supra note 7, at 34.
On February 22, 1999, Sullivan saw Lynn Mack-Shipman, M.D. in the UNMC endocrine clinic for multiple medical problems, including diabetes, hypertension, attention deficit disorder ("ADD"), and depression. (Tr. 319-24, 327-28.) It was noted that Sullivan had been followed by a psychiatrist and was taking Zoloft for depression and Ritalin for ADD. (Tr. 319.) Sullivan's diabetes was found to be under "poor control," and Sullivan was provided with extensive diabetes education. (Tr. 320.)
Sullivan saw Dr. Michael on August 27, 1998 (Tr. 335), October 22, 1998 (Tr. 334), December 18, 1998 (Tr. 333), January 22, 1999 (Tr. 332), and March 30, 1999 (Tr. 331).
On March 29, 1999, Dr. Michael noted that Sullivan had demonstrated a history of noncompliance with psychotropic medications and delaying scheduled followup appointments. These events resulted, in turn, in a "poorer prognosis." (Tr. 326.) Dr. Michael opined that Sullivan's current GAF was in the range 55-60 and that his GAF for the past year was 60 (Tr. 326).
See n. 7, supra.
In a report dated May 13, 1999, Dr. Ritch Miller stated that he treated Sullivan from July 9 through September 4, 1991, for back pain. Dr. Miller's diagnosis was lumbar disc syndrome with myelopathy, aggravated by movements during work and daily activities. During the time he was seen, Sullivan experienced "only slight improvement," and he discontinued his care before completion of his treatment plan. (Tr. 348.)
"Myelopathy" is defined as a "[d]isorder of the spinal cord." Stedman's Medical Dictionary, supra note 2, at 1171.
Other Documentary Evidence
In a supplemental disability report dated March 7, 1998, Sullivan stated that he walked to the grocery store once a week without help. He also stated that he took his children to the park. (Tr. 124.) He also stated that his ability to care for himself had not change since his illness. (Tr. 125.) Yet, on July 10, 1998, Sullivan stated in a reconsideration disability report that he undertook no daily activities, did not go out and did not "do anything." (Tr. 138.)
In completing a supplemental information form dated April 16, 1998, Sullivan's wife, Jo Ann Sullivan, stated that Sullivan "can pretty much stay on task." She added that and, when he performs daily activities, "it's okay." (Tr. 135.)
The ALJ also considered earnings reports indicating that, after three prior applications for disability benefits were denied, Sullivan earned wages as follows: $15,767.89 in 1992; $8,160.91 in 1994; $10,193.70 in 1995; $14,225.03 in 1996; and $3,937.55 between January 1-23, 1997. (Tr. 26, 110.)
THE ALJ'S DECISION
The ALJ found that Sullivan was not "disabled" pursuant to his March 3, 1998, application for disability benefits under Disability or SSI benefits under Title XVI benefits. (Tr. 28.) The ALJ framed the issues as: (1) whether Sullivan was entitled to disability and SSI benefits under the Act; and (2) whether Sullivan was "disabled." (Tr. 16.)
The ALJ followed the sequential evaluation process set out in 20 C.F.R. § 404.1520 and 416.920 to determine whether Sullivan was disabled, considering:
Section 404.1520 relates to disability benefits, and identical § 416.920 relates to SSI benefits. For simplicity, further references will only be to § 404.1520.
any current work activity, the severity of any medically determinable impairment(s), and the individual's residual functional capacity with regard to his . . . ability to perform past relevant work or other work that exists in the regional and national economies. This latter step requires an assessment of the individual's age, education and past work experience.
(Tr. 17.)
Following this analysis, the ALJ found that Sullivan is not disabled. (Tr. 28.) Specifically, at step one the ALJ found that Sullivan has not performed any substantial gainful work activity since January 23, 1997. (Tr. 17.) At step two, the ALJ found that Sullivan has medically determinable impairments that have imposed more than slight limitations on his ability to function: diabetic retinopathy; insulin dependent diabetes mellitus; and an affective disorder. (Tr. 18-21, 27.) At step three, the ALJ found that Sullivan has the following medically determinable impairments: diabetic retinopathy; insulin dependent diabetes mellitus; and an affective disorder. (Tr. 27.) While these impairments, either singly or collectively, do not meet section 12.04 or any other section of Appendix 1 to Subpart P of the Social Security Administration's Regulations No. 4, known as the "listings," the ALJ noted that Sullivan's impairments have imposed limitations on his ability to perform basic work-related functions. Those limitations include: the frequent lifting/carrying of objects weighing more than ten pounds; more than occasional lifting of objects weighing twenty pounds; fine visual acuity; depth perception; full field of vision; climbing ladders, ropes or scaffolds; exposure to temperatures of extreme cold or heat; close interaction with coworkers or more than occasional interactions with supervisors. (Tr. 28.) At step four, the ALJ determined that, despite Sullivan's medically determinable impairments, he possessed the residual functional capacity to perform his past relevant work as a photo copy machine operator. (Tr. 21.)
In so deciding, the ALJ weighed Sullivan's testimony, finding the testimony not credible in light of the criteria set out in 20 C.F.R. § 404.1520(e) and 416.902(e), Social Security Ruling 96-7p and Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1986). (Tr. 21-26, 28.) The ALJ also carefully considered the medical records and other documentary evidence (Tr. 24-26).
STANDARD OF REVIEW
In reviewing a decision to deny disability benefits, a district court does not reweigh evidence or the credibility of witnesses or revisit issues de novo. Bates v. Chater, 54 F.3d 529, 532 (8th Cir. 1995); Harris v. Shalala, 45 F.3d 1190, 1193 (8th Cir. 1995). Rather, the district court's role under 42 U.S.C. § 405(g) is limited to determining whether substantial evidence in the record as a whole supports the Commissioner's decision and, if so, to affirming that decision. Harris, 45 F.3d at 1193.
"Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept it as adequate to support a decision." Holmstrom v. Massanari, 270 F.3d 715, 720 (8th Cir. 2001). The Court must consider evidence that both detracts from, as well as supports, the Commissioner's decision. Id.; Morse v. Shalala, 16 F.3d 865, 870 (8th Cir. 1994). As long as substantial evidence supports the Commissioner's decision, that decision may not be reversed merely because substantial evidence would also support a different conclusion or because a district court would decide the case differently. McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000); Harris, 45 F.3d at 1193.
DISCUSSION "Disability" Defined
An individual is considered to be disabled if he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to . . . last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A). The physical or mental impairment must be of such severity that the claimant is "not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). If the claimant argues that he has multiple impairments, the Act requires the Commissioner to "consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity." 42 U.S.C. § 423(d)(2)(B).
Sequential Evaluation
In determining disability, the Act follows a sequential evaluation process. See 20 C.F.R. § 416.920. In engaging in the five-step process, the ALJ considers whether: 1) the claimant is gainfully employed; 2) the claimant has a severe impairment; 3) the impairment meets the criteria of the "listings"; 4) the impairment prevents the claimant from performing past relevant work; and 5) the impairment necessarily prevents the claimant from doing any other work. Id. If a claimant cannot meet the criteria at any step in the evaluation, the process ends and the determination is one of no disability. Id. In this case, the ALJ completed the evaluation process, concluding: 1) Sullivan has not performed substantial gainful work activity since January 23, 1997; 2) Sullivan has medically determinable impairments that have imposed more than slight limitations on his ability to function, i.e. diabetic retinopathy; insulin dependent diabetes mellitus; and an affective disorder; 3) Sullivan's medically determinable impairments, either singly or collectively, do not meet the "listings." However, the impairments impose several restrictions on his ability to perform basic work-related functions, as listed previously in this Memorandum and Order; and 4) despite Sullivan's medically determinable impairments, he possesses the residual functional capacity to perform his past relevant work as a photo copy machine operator. The ALJ found that Sullivan's testimony was not credible. (Tr. 27-28.)
Pain Analysis Credibility of Sullivan's Testimony
Sullivan did not raise an argument specifically relating to the finding that his testimony was not credible. However, Sullivan raised two arguments that relate to the credibility issue. First, Sullivan argues that the hypothetical posed to the VE was "inaccurate." Implicit is the argument that the ALJ did not properly apply the correct standard in evaluating Sullivan's subjective complaints of pain, and the finding that his testimony was not credible and led to an improper hypothetical posed to the VE. Second, Sullivan argues that the ALJ failed to follow SSR 82-59.
The ALJ found that Sullivan's testimony was not credible in light of the criteria set forth in 20 C.F.R. § 404.1529 and 416.929, Social Security Ruling 96-7p, and Polaski. Specifically, the ALJ relied on numerous medical reports indicating a lack of compliance on Sullivan's part with treatment regimens for his diabetes, depression, and back condition as well as a failure to show good cause for his failure to follow his doctors' advice.
The ALJ noted that Sullivan was seen in September 1991 for his back condition, but failed to take analgesics or to seek further treatment for future back problems. The record shows that Sullivan only sought treatment for his back condition between July 9 through September 4, 1991, diagnosed as lumbar disc syndrome with myelopathy, aggravated by movements during work and daily activities. Sullivan experienced discontinued his care before completion of the treatment plan. (Tr. 348.).
The credibility of Sullivan's testimony is crucial because, in determining the fourth factor relating to a claimant's residual functional capacity to perform past relevant work in spite of his impairments, the ALJ must evaluate the credibility of a claimant's testimony regarding subjective pain complaints. The underlying issue is the severity of the pain. Black v. Apfel, 143 F.3d 383, 386-87 (8th Cir. 1998). The ALJ is allowed to determine the "authenticity of a claimant's subjective pain complaints." Ramirez v. Barnhart, 292 F.3d 576, 582 (8th Cir. 2002) (citing Troupe v. Barnhart, 32 Fed. Appx. 783, 784 (8th Cir. 2002)); Clark v. Shalala, 28 F.3d 828, 830-31 (8th Cir. 1994)). An "`ALJ may discount subjective complaints of pain if inconsistencies are apparent in the evidence as a whole.'" Haley v. Massanari, 258 F.3d 742, 748 (8th Cir. 2001) (stating the issue as whether the record as a whole reflected inconsistencies that discredited the plaintiff's complaints of pain) (quoting Gray v. Apfel, 192 F.3d 799, 803 (8th Cir. 1999)).
Also, an ALJ may resolve conflicts among various treating and examining physicians, assigning weight to the opinions as appropriate. Pearsall v. Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001).
The Polaski standard is the guide for credibility determinations:
While the claimant has the burden of proving that the disability results from a medically determinable physical or mental impairment, direct medical evidence of the cause and effect relationship between the impairment and the degree of claimant's subjective complaints need not be produced. The adjudicator may not disregard a claimant's subjective complaints solely because the objective medical evidence does not fully support them.
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 and examining 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 the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole.Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1986).
Interpreting the Polaski standard, §§ 404.1529 and 416.929 discuss the framework for determining the credibility of subjective complaints, e.g. pain.
An ALJ is required to make an "express credibility determination" when discrediting a social security claimant's subjective complaints. Lowe v. Apfel, 226 F.3d 969, 971-72 (8th Cir. 2000). This duty is fulfilled when an ALJ acknowledges the Polaski factors, and the ALJ has clearly examined the factors before discounting the claimant's testimony. An ALJ is "not required to discuss methodically each Polaski consideration." Id. at 972.
The federal regulations provide that the ALJ must consider all symptoms, "including pain, and the extent to which symptoms can reasonably be accepted as consistent with the objective medical evidence," defined as "medical signs and laboratory findings." 20 C.F.R. § 416.929. Medical "signs" are defined as:
anatomical, physiological, or psychological abnormalities which can be observed, apart from your statements (symptoms). Signs must be shown by medically acceptable clinical diagnostic techniques. Psychiatric signs are medically demonstrable phenomena that indicate specific psychological abnormalities, e.g., abnormalities of behavior, mood, thought, memory, orientation, development, or perception. They must also be shown by observable facts that can be medically described and evaluated.20 C.F.R. § 416.928(b) (2001).
"Laboratory findings" are defined as: "anatomical, physiological, or psychological phenomena which can be shown by the use of medically acceptable laboratory diagnostic techniques. Some of these diagnostic techniques include chemical tests, electrophysiological studies (electrocardiogram, electroencephalogram, etc.), roentgenological studies (X-rays), and psychological tests."20 C.F.R. § 416.928(c) (2001).
Social Security Ruling 96-7p provides that a "strong indication" of the credibility of a claimant's statements is the consistency of the claimant's various statements and the consistency between the statements and the other evidence in the record. Ruling 96-7p provides that the ALJ must consider such factors as:
* The degree to which the individual's statements are consistent with the medical signs and laboratory findings and other information provided by medical sources, including information about medical history and treatment.
* The consistency of the individual's own statements. The adjudicator must compare statements made by the individual in connection with his or her claim for disability benefits with statements he or she made under other circumstances, when such information is in the case record. Especially important are statements made to treating or examining medical sources and to the "other sources" defined in 20 C.F.R. § 404.1513(e) and 416.913(e). However, the lack of consistency between an individual's statements and other statements that he or she has made at other times does not necessarily mean that the individual's statements are not credible. Symptoms may vary in their intensity, persistence, and functional effects, or may worsen or improve with time, and this may explain why the individual does not always allege the same intensity, persistence, or functional effects of his or her symptoms. Therefore, the adjudicator will need to review the case record to determine whether there are any explanations for any variations in the individual's statements about symptoms and their effects.
* The consistency of the individual's statements with other information in the case record, including reports and observations by other persons concerning the individual's daily activities, behavior, and efforts to work. This includes any observations recorded by SSA employees in interviews and observations recorded by the adjudicator in administrative proceedings.
SSR 96-7p, 1996 WL 374186 (S.S.A.) at *5 (July 2, 1996).
Social Security Ruling 96-7p is entitled: "Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements.
Deference is generally granted to an ALJ's determination regarding the credibility of a claimant's testimony and, in particular, subjective complaints of pain. Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001) (stating that if an ALJ provides a "good reason" for discrediting claimant's credibility, deference is given to the ALJ's opinion, although every factor may not have been discussed).
In Sullivan's case, the record illustrates that the ALJ performed a thorough Polaski analysis in determining the credibility of his subjective pain complaints. In making the credibility determination, the ALJ considered that Sullivan has not performed substantial gainful activity since January 23, 1997, earned wages in 1994, 1995, and 1996 after three unsuccessful applications for disability, and earned $3,937.55 during the brief period in 1997 before his alleged onset date of January 23, 1997. The ALJ summarized in detail Sullivan's complaints relating to his low back pain. (Tr. 24.)
The ALJ exhaustively considered medical opinions, particularly those of: Dr. Duckworth, Sullivan's primary treating physician for his diabetic condition; Dr. Chacko, who treated Sullivan's vision problems; Dr. Michael, who evaluated Sullivan's mental condition; and Dr. Miller, who briefly treated Sullivan's back condition in 1991. (Tr. 18-25.) The ALJ specifically noted discrepancies between Sullivan's testimony and the medical evidence. Of particular note was Sullivan's failure to follow through with followup treatment for his diabetes, depression and back pain. In summary, the ALJ thoroughly considered Sullivan's subjective pain complaints, the reports of his treating physicians, efforts at treatment, reports of evaluations, and Sullivan's own statements. The ALJ correctly engaged in the Polaski analysis. The ALJ set out the standards stated in §§ 404.1529 and 416.929, and the ALJ acknowledged the Polaski standard as well as applicable regulations and SSR 96-7p. (Tr. 22-23.) The ALJ did not err in not considering SSR 82-59, which does not apply to Sullivan's case and does not preclude the consideration of noncompliance with treatment within an analysis of a claimant's credibility. Holley v. Massanari, 253 F.3d 1088, 1092 (8th Cir. 2001) (stating that SSR 82-59 only applies to claimants who would be disabled and whose compliance with treatment would restore their ability to work).
In summary, the ALJ's conclusion that Sullivan's pain is not severe enough to prevent him from engaging in some of his past relevant work as performed was well-founded, and followed an appropriate express credibility determination regarding Sullivan's assertion of subjective complaints. The ALJ's credibility decision was well-supported and based on a thorough analysis of treating and consultative medical reports. The ALJ appropriately determined that Sullivan's testimony was not credible with respect to the extent of his symptoms and limitations.
Past Relevant Work
The ALJ bears the primary responsibility for assessing Sullivan's residual functional capacity based on the relevant evidence. However, Sullivan's residual functional capacity is a medical question. Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir. 2001). The ALJ must resolve any conflict in the medical evidence. Id. However, some medical evidence "`must support the determination of the claimant's [residual functional capacity], and the ALJ should obtain medical evidence that addresses the claimant's ability to function in the workplace.'" Id. at 712 (quoting Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001)). "To properly determine a claimant's residual functional capacity, an ALJ is therefore `required to consider at least some supporting evidence from a [medical] professional.'" Id. (quoting Lauer, 245 F.3d at 704).
In Sullivan's case, the ALJ followed the procedures in determining that Sullivan retained the residual functional capacity to return to some of his past relevant work. The ALJ considered, among other things, records from both treating and agency physicians. The ALJ examined factors including, but not limited to: Sullivan's failure to continue treatment for his diabetes, vision and back problems; actions in earning significant wages after being denied disability on three prior occasions; and significant earnings during the first twenty-three days of January 1997 before Sullivan's most recent disability application was filed on January 23, 1997. Taking all of this evidence as well as evidence presented at the ALJ's request after the hearing into consideration, the Court finds that the ALJ properly determined the fourth step of the required inquiry.
Therefore, this Court agrees that the ALJ properly determined that Sullivan could return to his past relevant work as a photo copy machine operator.
Residual Functional Capacity
Residual functional capacity is defined as what Sullivan "can still do despite . . . limitations." 20 C.F.R. § 404.1545(a), 416.945(a). Residual functional capacity is an assessment based on all "relevant evidence," id., including a claimant's description of limitations; observations by treating or examining physicians or psychologists, family, and friends; medical records; and the claimant's own description of his limitations. Id. §§ 404.1545(a)-(c), 416.945(a)-(c).
The ALJ must determine RFC based on all of the relevant evidence, including the medical records, observations of treating physicians and others, and the claimant's own description of his limitations. McKinney v. Apfel, 228 F.3d 860, 863-64 (8th Cir. 2000). Before determining residual functional capacity, an ALJ first must evaluate the claimant's credibility. In evaluating subjective complaints, the ALJ must consider, in addition to objective medical evidence, any other evidence relating to: a claimant's daily activities; duration, frequency and intensity of pain; dosage and effectiveness of medication; precipitating and aggravating factors; and functional restrictions. See Polaski, 739 F.2d at 1322; see also § 404.1529. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole. Polaski, 739 F.2d at 1322. A lack of work history may indicate a lack of motivation to work rather than a lack of ability. See Woolf v. Shalala, 3 F.3d 1210, 1214 (8th Cir. 1993) (stating that a claimant's credibility is diminished by a poor work history). The credibility of a claimant's subjective testimony is primarily for the ALJ, not a reviewing court, to decide. Pearsall, 274 F.3d at 1218.
In this case, the ALJ set out the language describing the appropriate standard under Polaski and § 404.1529. (Tr. 22-23.) The ALJ summarized Sullivan's testimony, and she considered described Sullivan's daily activities according to the testimony and documentary evidence. (Tr. 24.) The ALJ found Sullivan's testimony not credible. (Tr. 26.) The ALJ's record included, in addition to Sullivan's testimony, documentary evidence including reports of treating and consultative physicians, a residual functional capacity assessment, and the testimony of Anita Howell, a vocational expert under contract with the SSA. The VE opined that Sullivan had the residual functional capacity to perform his past relevant work as a photo copy machine operator with certain specific restrictions. (Tr. 26.)
Question Posed to Vocational Expert
A vocational expert's hypothetical question is proper if it includes all of the impairments accepted by the ALJ as true, and if the question likewise excludes impairments that the ALJ has reasonably discredited. Pearsall, 274 F.3d at 1220.
Sullivan argues that the hypothetical is inconsistent with answers provided by the ALJ to questions in an "OHA Psychiatric Review Technique Form" completed on the same day as the filing of the ALJ's opinion. (Tr. 30-32.) Sullivan offers no legal authority for his argument.
Examining the hypothetical posed to the VE in this case, the question properly included the impairments that the ALJ found to be substantially supported by the record as a whole. Sullivan's argument regarding two answers to questions relating to social functioning and deficiencies of concentration and ability to complete tasks in a timely manner considers those answers out of the context of the evidence as a whole. Therefore, the Court concludes that the hypothetical posed to the VE was proper, in light of all the evidence.
CONCLUSION
For the reasons discussed, the Court concludes that the Commissioner's decision is supported by substantial evidence on the record as a whole and is affirmed.
IT IS ORDERED that the decision of the Commissioner is affirmed, the appeal is denied, and judgment in favor of the Defendant will be entered in a separate document.