Weber v. Apfel, 1998 DSD 1

United States District Court, District of South Dakota

Weber v. Apfel, 1998 DSD 1

Opinion Filed Jan 20, 1998

Formatting courtesy of The State Bar of South Dakota
and South Dakota Continuing Legal Education, Inc.
222 East Capitol Ave.
Pierre, SD 57501

ALLEN K. WEBER,
Plaintiff,
v.
KENNETH S. APFEL,(1)
Commissioner of Social Security,
Defendant.
[1998 DSD 1]

United States District Court
District of South Dakota-Western Division
CIV 97-5055

MEMORANDUM OPINION AND ORDER

Opinion Filed Jan 20, 1998.

Richard H. Battey, Chief Judge

I. PROCEDURAL HISTORY

[ś1] In an opinion dated December 12, 1996, Jon L. Lawritson, an Administrative Law Judge ("ALJ"), denied plaintiff Allen K. Weber ("Weber") Title II disability benefits under Title II of the Social Security Act, 42 USC §§ 401-33. Weber requested review by the Appeals Council of the ALJ's decision, and the Appeals Council declined review. Weber next filed a complaint before this Court seeking review of the ALJ's decision⁽²⁾ denying him social security benefits. On October 1, 1997, Weber filed his motion for summary judgment. Plaintiff urges this Court to reverse the decision of the ALJ denying him benefits and to grant him disability benefits based upon the administrative record. The Commissioner of Social Security ("Commissioner") filed his response urging that he is entitled to summary judgment as a matter of law and that the decision by the ALJ should be affirmed. Weber has filed his reply. This Court has jurisdiction to proceed pursuant to 42 USC § 405(g).

II. FACTS

[ś2] Weber was born on January 27, 1949. Weber worked as a diamond drill contractor for Homestake Mining Company ("Homestake") for approximately twenty-seven years. Tr. 47, 59. He worked for Homestake until February 22, 1994. Tr. 47. In February, he was told that he could no longer work in his job until he took care of his back problems. Tr. 48. By March of 1994, Weber's back condition had deteriorated to the point where he required surgery. Tr. 145-46, 165. In March of 1994, Dr. Larry Teuber, Weber's treating physician, performed the surgery. Tr. 145-46, 165. Dr. Teuber diagnosed Weber with spondylolisthesis, a stenosis, and spondylolysis; these are essentially the same as degenerative lumbar disk disease. Tr. 145, 256.

[ś3] At the administrative hearing held on November 8, 1996, Weber testified that he suffers from back problems, pain in both knees, and arthritis in the knuckles of both his hands.⁽³⁾ Tr. 49. Weber stated that he has not received any treatment for his hands except some cortisone shots in one of his shoulders several years ago. Tr. 50. He stated that he has problems grasping anything, such as a pencil or a knife, in a pinching type motion for any length of time. However, he does not have problems gripping with his fist unless he is gripping an object which creates downward pressure on his joints. Tr. 53. Weber stated that he does not have any problems reaching. Tr. 53.

[ś4] Weber testified that his right knee affects his walking, standing, bending down, squatting, or standing up from a squat. Tr. 51. Approximately four months prior to the administrative hearing, Weber had surgery on his right knee. Tr. 57. For the first six months after surgery, Weber stated that his knee was better, then the improvements on his knee started to go backwards. Tr. 56. At the time of the hearing, Weber's knee was better than it had been before the surgery, but he did not feel that the surgery had significantly improved his knee, and his knee felt worse than it did in 1994. Tr. 56, 57.

[ś5] As for Weber's back pain, Weber testified that his pain varies from a "dull ache to a sharp pain." Tr. 50. Weber testified, "I suppose I could probably lift as much as I wanted to, but according to the doctor I'm supposed to keep a 25 pound limit." Tr. 52. Weber stated that he would not quarrel with the doctor's 25-pound limit. Tr. 52. Weber testified that he has good days half of the time and bad days the other half of the time. Tr. 54. On a good day, Weber stated that he is able to sit for an hour, and on a bad day, he is able to sit for about fifteen minutes before he needs to get up and walk around. Tr. 52. Weber stated that he is unable to bend forward at his waist without bending his knees. Tr. 52.

[ś6] Weber testified that there would be some weeks which he felt that if he had a job he would only be able to work two to three days a week. Tr. 63. According to Weber, his back and knee prevent him from working because he cannot do the lifting. Tr. 52. Weber also testified that he needs to lay down every day. Tr. 57-58.

[ś7] On a bad day, Weber gets up at 5:30 a.m. Tr. 54. He reads the paper and then exercises for 30 to 45 minutes. As for exercise, Weber uses a cardio bike and lifts arm weights. Tr. 55. When using arm weights, the least amount of weight which he uses is 10 pounds. Tr. 55. The most weight Weber uses is 20 pounds. Tr. 56. After exercising, he sits in a hot tub for 15 to 30 minutes. Tr. 54. Next, Weber will have breakfast and finish reading the paper. Tr. 54. About three to five times a day, Weber testified that he will lay down for 10 to 15 minutes. Tr. 54. See also Tr. 118. Weber works in his wood shop during the day. Tr. 54. When Weber works in his wood shop, he uses mostly power tools. In his wood shop, Weber restores antiques. Tr. 56. Weber also does the cooking, sweeping, grocery shopping, and dishes. Tr. 55, 117. During the night, Weber gets up to walk around every couple of hours. Tr. 55. Weber testified that on a good day he does about the same thing that he does on a bad day. Tr. 55.

[ś8] Weber is not on any prescription medication. Tr. 58. He takes over-the-counter medication, Aleve and Orudis. Tr. 58. At the time of the hearing, Weber was taking from six to eight Aleve a day. Tr. 62. Weber takes Aleve because his doctors recommended it and because he is afraid of becoming addicted to prescription medication. Tr. 62.

[ś9] At the administrative hearing, the vocational expert, Martin L. Rauer, also testified. Assuming that an individual could perform at the light exertional level, had back pain, pain in his right knee, and would need to be able to sit or stand at will, Rauer testified that the individual would not be able to perform the previous work which Weber has performed. The ALJ then asked Rauer to also assume Weber's age, education, and work experience. Considering these three additional factors and the previous factors, Rauer concluded that there would be positions available in the national economy for Weber. Rauer concluded that Weber could work as a gate guard which is light physical demand, a private dispatcher which is sedentary, and an information clerk which is also sedentary. Tr. 65. Rauer stated that even assuming that Weber could only occasionally kneel and could not do any over head reaching that he would still be able to perform the previous jobs. Tr. 66.

[ś10] The ALJ then proposed a hypothetical to Rauer which assumed that an individual could frequently carry up to 10 pounds, occasionally carry 11 to 24 pounds, sit for two to three hours in an eight-hour day, walk for four to five hours in an eight-hour day, alternate sitting and standing seven to eight hours in an eight-hour day, avoid moving machinery, avoid marked changes in temperature and humidity, and has Weber's age, education, and work experience. Rauer concluded that Weber could not still perform the gate guard position given the temperature restriction. Tr. 67. Rauer concluded that with these restrictions, Weber could also work as a survey worker, a load dispatcher, and a surveillance system monitor. Tr. 68-69. The position of a surveilance system monitor is sedentary and unskilled. Tr. 69.

[ś11] The vocational expert testified that if Weber's testimony was found to be fully credible he would not be able to perform any work within the national economy. Tr. 69. Rauer reached this conclusion because of Weber's testimony that he needs to lie down almost daily. Tr. 69.

[ś12] Weber's wife, Cheryl Weber, stated that Weber does cooking, grocery shopping once or twice a week, some yard work, the dishes, and sweeps. According to Cheryl, Weber does not need help completing these chores unless the task requires lifting. Tr. 112. Cheryl has taken over many of the household chores because Weber is not able to carry more then 20 pounds. Tr. 288. Cheryl, in a statement dated November 8, 1996, which was submitted as an exhibit to the administative hearing, said that Weber can sit for about half an hour before he starts to fidget. Tr. 287. She also stated that when Weber is standing he will shift his weight from side to side. Weber is unable to ride in the car for any length of time without having to get out of the car and stretch. Tr. 287-88. Cheryl stated that Weber goes from sitting to walking to laying down to stretch out. Tr. 288. She said that this cycle is a continuous cycle occurring all day long. Tr. 288. According to Cheryl, Weber will take from 2 to 8 Aleve a day depending on his level of pain. Tr. 288. Cheryl stated that she has also witnessed Weber's restless nights. She does not know when he sleeps. Normally, he will go to bed by 10 p.m. and is up by 1 a.m. and may not go back to bed again until 4 a.m. and then is up by 5:30 a.m. Tr. 289. Cheryl stated that Weber's back problem has taken so much from their lives. Tr. 289. See also Tr. 111-15 (daily activities questionaire filled out by third-party Cheryl Weber).

[ś13] On February 6, 1995, Dr. Teuber's report showed that Weber was doing fine postoperatively, and Dr. Teuber stated that he would like to see Weber get back to work. Tr. 197. See also Tr. 196, 198-203. In February, the only restrictions noted by the doctor were that Weber will be restricted for his lifetime from heavy lifting and bending. Tr. 197. See also Tr. 200 (Dr. Teuber noted on September 6, 1994, that Weber would be restricted from lifetime of heavy lifting). However, in a letter dated April 1, 1995, Dr. Teuber felt that Weber was capable of performing only sedentary employment. Tr. 195. A sedentary job presupposes that an individual will be sitting most of the time, but may stand two to three hours in an eight-hour work day and is limited to lifting 10 pounds. Tr. 195. A light job, for which Dr. Teuber did not believe Weber qualified, presupposes that an individual can stand and walk for at least six hours in an eight-hour work day. Tr. 195. In a functional capacities assessment performed by Dr. Teuber dated April 1, 1995, Dr. Teuber concluded with Weber's limits that he could not return to his former job but that he could work with his restrictions. Tr. 193. Dr. Teuber's functional capacities assessment concluded that Weber could frequently lift and carry up to 10 pounds and that he could occasionally lift and carry 11 to 24 pounds. Tr. 194. Teuber also found that Weber could sit for two to three hours, stand for four to five hours, walk for four to five hours, and alternate sitting and standing for seven to eight hours. Tr. 194.

[ś14] In September of 1995, Dr. Teuber noted that Weber did well for the first six months after his back surgery, but that over the last six months, he had developed progressive problems. Tr. 209. The doctor noted that Weber had developed a persistent aching in his left leg. Tr. 209. The doctor also stated that Weber had told him he was experiencing numbness in his left hand. Tr. 209.

[ś15] A functional capacities assessment was also performed by Nano Johnson. At the administrative hearing of Weber, the deposition testimony of Nano Johnson was entered as an exhibit. Johnson is currently the supervisor for industrial medicine at Black Hills Rehabilitation Hospital. Tr. 212. Johnson is trained as a physical therapist. Tr. 213. Johnson is not trained as a physician. Tr. 215. In 1986, she started to do functional capacity assessments. Johnson performed a functional capacities assessment on Weber. See Tr. 240-244. This assessment was her first contact with Weber. Tr. 219. According to Johnson's findings, Weber's walking, sitting, and standing is considered to be low as compared with the normal population. Tr. 215. Johnson stated that these results pose limits on gainful employment. Tr. 216. Johnson stated that according to the Polinsky functional capacities assessment, a person performing a sedentary job would be sitting six out of eight hours a day. Tr. 216. Considering the limitations which Johnson determined Weber to have, Johnson testified that Weber would have a very difficult time finding a job. Tr. 216. Johnson testified that it would be difficult to put someone with Weber's limits into a sedentary job. Tr. 217. Johnson stated that knowing that Weber performed daily activities, such as cutting grass, gardening, and driving, would not change her conclusions. Tr. 218. She stated that she encourages people to remain as active in their daily lives as they can within their limitations. Tr. 218.

[ś16] However, Johnson also testified that whether Weber could perform sedentary and light occupations was not a recommendation she could make. Tr. 219. Johnson did testify that she would not recommend the jobs listed within the Dictionary of Occupational Titles because of Weber's prolonged tolerance to sitting, standing, and walking. Tr. 220. On the other hand, Johnson stated that if a job could be found within the sedentary or light category which would accommodate his sitting/standing limitations, then he could work an eight-hour day. Tr. 222. Johnson also testified that while observing Weber taking his functional capacities assessment she believed his complaints of pain to be credible. She would not classify Weber as a symptom magnifier. Tr. 220-22.

[ś17] The record also contains a third functional capacities assessment which concludes that Weber is capable of doing light work. Tr. 133-40. This is apparently the functional capacities assessment which the ALJ relied on in part in not accepting Dr. Teuber's assessment of Weber.

III. DECISION BY THE ALJ

[ś18] In assessing the sequential process⁽⁴⁾ which is required when determining if an individual is disabled pursuant to the Social Security Act, the ALJ first concluded that Weber has not performed any substantial gainful activity since the date of the alleged onset of his disability. Second, the ALJ found that Weber suffered from severe medical impairments. However, in the opinion of the ALJ, the severe medical impairments which Weber does suffer from did not fit within one of the listed severe impairments in Appendix 1 to Subpart P. See Appendix 1 to Subpart P of Part 404, 20 CFR §§ 404.1501 et seq. (1996).

[ś19] The ALJ's last step in determining whether Weber is disabled was to consider whether he could perform past work or other work within the national economy. The ALJ considered Weber's testimony from the administrative hearing as to the pain which occurs in his lower back and right knee. The ALJ also noted that Weber also complained of pain in his hands, but admitted that he has not received any treatment for his hands. Weber testified that on a bad day he usually lays down for ten to fifteen minutes three or four times a day. During the day, he usually works in his wood shop restoring antiques. Occasionally he cooks, sweeps, and washes dishes. The ALJ noted that Weber testified that he finds it uncomfortable to remain in the same position for an extended period. Weber wakes up every two hours during the night. Accordingly to the ALJ, on a "good day" Weber's activities are essentially the same.

[ś20] The ALJ pointed out that the only pain medications which Weber takes are over-the-counter Aleve and Orudis. At the time of the hearing, Weber was not receiving physical therapy or any other treatment.

[ś21] In assessing Weber's credibility as to his complaints of pain, the ALJ set forth the factors in Polaski v. Heckler, 739 F2d 1320, 1322 (8^th Cir. 1984). The ALJ did not find Weber's testimony as to his limitations to be fully credible. In reaching this conclusion, Weber relied on a questionnaire completed by Weber in May of 1995. In the questionnaire, Weber stated that he did most of his family's grocery shopping. Weber also stated that he is able to stand to cook and that he mows the lawn with a self-propelled lawn mower. Weber also listed gardening as an activity in which he was involved. The ALJ also relied on Weber's mother-in-law in reaching his conclusion. Weber's mother-in-law indicated that although he does so slowly, Weber is able to take care of the household chores. She stated that he mows the lawn and does some cooking and gardening.

[ś22] In arriving at his conclusions relating to Weber's credibility, Weber also considered the functional capacity assessment form which was completed by Weber's treating physician, Dr. Larry L. Teuber, on April 1, 1995. Dr. Teuber found that Weber could lift 10 pounds and could occasionally lift 24 pounds. According to Dr. Teuber, Weber is able to sit for two or three hours and stand or walk for four to five hours with rests. Weber is able to alternate between sitting and standing for seven to eight hours a day. The ALJ also noted that he did not accept Dr. Teuber's assessment as "accurately describing the Claimant's residual functional capacity." The ALJ reached this conclusion based upon inconsistencies which he found in Dr. Teuber's reports on Weber. On February 6, 1995, Dr. Teuber said that Weber would only be restricted from heavy lifting. Then in a letter dated April 1, 1995, Dr. Teuber stated that Weber would only be able to perform sedentary work, but on the same date Dr. Teuber completed the questionnaire discussed above which, according to the ALJ, would suggest that Weber could perform more than sedentary work.

[ś23] A residual functional capacity assessment prepared by a doctor who was employed by the state agency states that Weber is capable of performing a full range of light work. Tr. 133-40. Based upon Weber's testimony, the questionnaire completed by Dr. Teuber, and the residual functional capacity assessment by the state agency, the ALJ concluded that Weber "has the residual capacity to work at the light exertional level but would require a sit-stand option and is unable to work around moving machinery and needs to avoid extremes of temperature and humidity." Tr. 33. The ALJ agreed with the vocational expert's conclusion that Weber would be unable to perform his past work. However, based upon the opinion of the vocational expert, the ALJ also concluded that there are jobs in the national economy which Weber could perform. The jobs which the ALJ concluded that Weber could perform were illustrated by information clerk, survey interviewer, and surveillance system monitor. Despite the ALJ's conclusion that Weber is able to perform light work, the jobs which the ALJ concluded that Weber could perform are all sedentary jobs within the national economy. Given the ALJ's conclusion, the ALJ found that Weber was not disabled as defined by the Social Security Act.

IV. STANDARD OF REVIEW

[ś24] The decision of the ALJ must be upheld if it is supported by substantial evidence on the record as a whole. 42 USC § 405(g); Metz v. Shalala, 49 F3d 374, 376 (8^th Cir. 1995) (citing Sullins v. Shalala, 25 F3d 601, 603 (8^th Cir. 1994), cert. denied, 573 U.S. 1076, 115 S. Ct. 722, 130 L. Ed. 2d 627 (1995)); Smith v. Shalala, 987 F2d 1371, 1373 (8^th Cir. 1993). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support such a conclusion. Shannon v. Chater, 54 F3d 484, 486 (8^th Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971)). See also Onstead v. Sullivan, 962 F2d 803 (8^th Cir. 1992) (quoting Whitehouse v. Sullivan, 949 F2d 1005, 1007 (8^th Cir. 1991)). Review by this Court extends beyond a limited search for the existence of evidence supporting the Commissioner's decision to include giving consideration to evidence in the record which fairly detracts from the decision. Brockman v. Sullivan, 987 F2d 1344, 1346 (8^th Cir. 1993); Locher v. Sullivan, 968 F2d 725, 727 (8^th Cir. 1992); Turley v. Sullivan, 939 F2d 524, 528 (8^th Cir. 1991).

[ś25] The Court's role under section 405(g) is to determine whether there is substantial evidence in the record as a whole to support the decision of the Commissioner and not to reweigh the evidence or try the issues de novo. Murphy v. Sullivan, 953 F2d 383, 384 (8^th Cir. 1992). The Commissioner's conclusions of law are only persuasive, not binding, on the reviewing court. Smith v. Sullivan, 982 F2d at 311; Satterfield v. Mathews, 483 F. Supp. 20, 22 (E.D. Ark. 1979), aff'd per curiam, 615 F2d 1288, 1289 (8^th Cir. 1980). As long as the ALJ's decision is supported by substantial evidence, then this Court cannot reverse the decision of the ALJ even if the Court would have decided it differently. Smith v. Shalala, 987 F2d at 1374.

V. DISCUSSION

[ś26] For Weber to be eligible for disability insurance benefits, he must be under a disability at the time he was insured for disability insurance benefits. See 42 USC § 423(a)(1)(A)-(D). A disability is defined as

inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

Id. § 423(d)(1). In determining when a disability has occurred in a case, the ALJ must follow five prescribed steps.⁽⁵⁾ See Evaluation of Disability Rule, 20 CFR § 404.1520 (1996). Weber urges that the ALJ's finding that Weber is able to perform work within the national economy was not supported by substantial evidence. In order for Weber to be eligible for benefits, he is required to show that he was unable to perform any substantial gainful activity for at least twelve consecutive months prior to his date-last-insured. Specifically, Weber has stated three objections to the ALJ's conclusion: (1) that the ALJ's rejection of Dr. Teuber's opinion was an error of law; (2) ALJ's credibility determination of Weber's pain is not supported by substantial evidence; and (3) the ALJ's conclusion that Weber is able to perform other existing jobs within the national economy is not supported by substantial evidence.

[ś27] Weber argues that the ALJ's conclusion that Weber is able to perform jobs within the national economy is not supported by substantial evidence because the ALJ failed to include within his hypothetical questions the extent of Weber's limitations when alternating between sitting and standing. A hypothetical question posed by the ALJ to a vocational expert constitutes substantial evidence if it sets forth the impairments which are accepted as true by the ALJ. Sobania v. Secretary of Health & Human Services, 879 F2d 441, 445 (8^th Cir. 1989). Of the jobs which the ALJ concluded Weber could perform within the national economy, the record is clear that the ALJ rejected Weber's testimony that he often needs to lay down during the day. He performs a number of tasks such as household chores, outside work, including mowing the lawn and gardening, and woodworking in his shop. The record is clear that the jobs would allow Weber to alternate between sitting and standing.

[ś28] Weber asserts other claims of error. He argues that the ALJ's rejection of Dr. Teuber's opinion was an error of law. Weber's argument of error focuses on two points. First, Weber urges that it was clear error for the ALJ to not discuss in his decision Dr. Teuber's recent medical opinions given in his March 14, 1996, deposition. See Tr. 254-272. Second, Weber argues that it was error for the ALJ to reject Dr. Teuber's opinion.⁽⁶⁾

[ś29] In Miller v. Shalala, 8 F3d 611, 613 (8^th Cir. 1993), the plaintiff argued that the ALJ erred when the ALJ "did not analyze her treating physician's statements that she cannot carry five pounds, that she needs a splint to lift five pounds, and that she cannot perform sedentary work." The Eighth Circuit stated, "In denying disability, the ALJ does not have to discuss every piece of evidence presented, but must develop the record fully and fairly." Id.; see also Walker v. Bowen, 834 F2d 635 (7^th Cir. 1987) (ALJ not required "to discuss every piece of evidence, but only to articulate his rationale sufficiently to allow meaningful review;" court found ALJ did not need to discuss why he preferred to rely on medical evidence rather than vocational evidence to reach his conclusion). It was not error for the ALJ not to discuss the deposition of Dr. Teuber.

[ś30] Dr. Teuber in his deposition refused to testify as to whether Weber could perform any work on a regular basis. Tr. 265. Dr. Teuber stated that he would defer that question to the vocational experts. Tr. 265-66. In reality, the ALJ may have considered the deposition of Dr. Teuber but chose not to discuss it. Regardless, the Eighth Circuit has held that the ALJ cannot be required to discuss every piece of evidence presented, and this Court finds that the ALJ reasonably developed the record as to the findings of Dr. Teuber.

[ś31] Dr. Teuber's assessment of Weber's functional capacity was discounted as inconsistent with the objective evidence. The ALJ was entitled to do so. Clark v. Chater, 82 F3d 202, 204 (8^th Cir. 1996). The ALJ stated that he did not accept Dr. Teuber's assessment of Weber's functional capacity because the ALJ found Dr. Teuber's opinion to be inconsistent with other evidence in the record.

[ś32] In rejecting Dr. Teuber's assessment, the ALJ compared an opinion given by Dr. Teuber on February 6, 1995, a letter dated by Dr. Teuber on April l, 1995, and the functional capacities assessment completed by Dr. Teuber signed on April 1, 1995. On February 6, 1995, Dr. Teuber stated, "[Weber] is restricted for lifetime for heavy lifting and bending and I would like to see him get back to work, but he will have to do so at a diminished capacity." Tr. 197. Two months later, in a letter signed by Dr. Teuber on April 1, 1995, Dr. Teuber then indicated that Weber should be limited to sedentary work. Tr. 195 (Ex. 21-5). Limiting an individual to sedentary work presupposes that a job performed would involve mostly sitting, but may allow standing and walking for two to three hours a day in an eight-hour work day. Tr. 195. A sedentary job would also limit Weber's ability to lift up to 10 pounds. Tr. 195. This Court finds that there was substantial evidence for the ALJ to feel that these two opinions were inconsistent. Whether this Court agrees with the ALJ is not the standard. The opinion in February stated that the only limits were heavy lifting and bending, but a sedentary job would place additional limits on Weber.

[ś33] In the functional capacity assessment, also signed by Dr. Teuber on April 1, 1995, the ALJ found that Dr. Teuber represented that Weber could perform more than sedentary work. Tr. 193-94 (Ex. 21-3, 21-4). The functional capacities assessment concluded that Weber: (1) could frequently lift 10 pounds; (2) could occasionally lift 11 to 24 pounds; (3) could sit for 2 to 3 hours with rests; (4) could stand 4 to 5 hours with rests; (4) could walk 4 to 5 hours with rests; and (5) could alternate sitting and standing for 7 to 8 hours with rests. The ALJ is correct that the functional capacities assessment reached by Dr. Teuber may exceed what is involved in a sedentary job. However, the work category after sedentary work is light work (Tr. 195) and given Dr. Teuber's conclusions in the functional capacities assessment and what is presupposed to be involved in jobs involving light work (Tr. 195), Weber could not stand and walk long enough to perform light work. The ALJ properly assessed any discrepancy in Dr. Teuber's assessment. C.

[ś34] Weber claims that the ALJ erred in discrediting Weber's allegations of pain. Weber argues that the ALJ's credibility determination was based upon "(1) Claimant cooks, mows his law[n], does some gardening, and works on his hobby of restoring antiques during the day; [and] (2) Claimant is using only over the counter pain medication and is not involved in any type of pain treatment." The ALJ's credibility determination was not error. Substantial evidence in the record supports the finding.

[ś35] In making the credibility determination as to Weber's pain, the ALJ set forth the factors⁽⁷⁾ of Polaski which he was to consider. In concluding that Weber's testimony regarding his pain was not fully credible, the ALJ first considered Weber's testimony as to his daily activities. Weber testified he does the family grocery shopping, that he is able to stand and cook, that he mows the lawn, and does some gardening. The ALJ heard lay witness testimony that Weber takes care of the usual household maintenance but that he does so slowly. Weber also testified that he works at his hobby restoring antiques most of the day. Claimant testified that he was only taking over-the-counter pain medication and that he is not involved in any physical therapy.

[ś36] An ALJ may discredit subjective complaints of pain if they are inconsistent with the record as a whole. Polaski, 739 F2d at 1322. See also Wilson v. Chater, 76 F3d 238 (8^th Cir. 1996). An ALJ may discredit a claimant's pain based upon evidence that the claimant is taking only mild pain medication. Jeffery v. Secretary of Health & Human Services, 849 F2d 1129, 1133 (8^th Cir. 1988). The claimant offered an explanation for taking mild pain medication. Id. at 1132-33. The explanations offered in Jeffery were that claimant was concerned about becoming addicted to prescription pain medication and claimant did not believe that the prescription pain medication was any more effective in relieving her pain symptoms.

[ś37] Weber argues that his testimony provided sufficient reasons for taking over-the-counter pain medication. Weber testified that he was taking Aleve because it was recommended by his doctors. Tr. 62. Weber also testified that he does not want to take prescription pain medication because he is concerned about becoming addicted to such medication. Tr. 62. It is clear that Weber's reasons for not taking prescription drugs were thought to be illusory. Based upon Jeffery, the explanations offered by Weber for taking over-the-counter prescriptions appear insufficient.

[ś38] The ALJ also discusses Weber's daily activities in discrediting Weber's credibility. The Eighth Circuit has stated, "Although daily activities alone do not disprove disability, they are a factor to consider in evaluating subjective complaints of pain." Wilson, 76 F3d 238 (quoting Russel v. Sullivan, 950 F2d 542, 545 (8^th Cir. 1991)). The ALJ relied on the fact that Weber does most of the grocery shopping, that he stands to cook, that he mows the lawn, and he does some gardening.

[ś39] Based upon the foregoing discussion, it is hereby

[ś40] ORDERED that judgment shall be entered in favor of the defendant and against the plaintiff. Costs shall not be assessed.

Footnotes

1. Kenneth S. Apfel was sworn in as Commissioner of Social Security on September 29, 1997. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, Kenneth S. Apfel should be substituted, therefore, for Acting Commissioner John J. Callahan as the defendant in this suit. No further action need be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 USC § 405(g).

2. After the Appeals Council declines to review the ALJ's decision, the decision of the ALJ becomes the decision of the Commissioner of Social Security, Kenneth S. Apfel, ("Commissioner"). 20 CFR § 404.981 (1996).

3. On June 14, 1995, Weber's claim for disability benefits was denied. Tr. 78. On July 7, 1995, Weber filed a motion for reconsideration which claimed that it was only low back pain which kept him from working. Tr. 82. His motion for reconsideration was denied. On November 11, 1995, Weber filed a request for a hearing by an ALJ. Tr. 87. This request also claimed that only his back pain prevented him from working. Tr. 87. Claimant's disability report of April 24, 1995, states that Weber's back surgery has resulted in his disabling condition. Tr. 96. In a reconsideration disability report signed by Weber on June 26, 1995, Weber stated that in addition to his low back pain he also had pain in his right leg. Tr. 105.

4. The steps are summarized as follows:

(1) First, a determination is made whether claimant is currently engaged in substantial gainful activity; if so, he must be found not disabled.

(2) If claimant is not engaged in substantial gainful activity, the next question is whether he is suffering from a severe impairment, defined as one that significantly limits the ability to perform basic work-related functions. If a severe impairment is not found, claimant must be found not disabled.

(3) If there is a severe impairment, and it is one listed in Appendix 1 to Subpart P, claimant is found disabled on the medical evidence alone. [ See Appendix 1 to Subpart P of Part 404, 20 CFR §§ 404.1501 et seq. (1996)].

(4) If the impairment is not listed in Appendix 1, the next inquiry is whether claimant can perform relevant past work. If he can, a finding of no disability is required.

(5) Finally, if claimant cannot perform relevant past work, the question then becomes whether he can nevertheless do other jobs that exist in the national economy, despite his having a severe impairment that prevents return to his previous work.

McCoy v. Schweiker, 683 F2d 1138, 1141-42 (8^th Cir. 1982). See also 20 CFR § 404.1520; 1 Harvey L. McCormick, Social Security Claims and Procedures § 410, at 346 (4^th ed. 1991).

5. See footnote 4.

6. Weber also argues that it was error for the ALJ not to discuss the deposition of Nano Johnson. Tr. 211-234. Nano Johnson saw Weber once when she performed a functional capacities assessment. This Court does not find that it was error for the ALJ to not discuss Johnson's deposition. Miller v. Shalala, 8 F3d 611, 613 (8^th Cir. 1993) (ALJ is not required to discuss every piece of evidence which was presented).

7. The court in Polaski stated:

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.

Polaski, 739 F2d at 1322. This Court recognizes that it may not be error for an ALJ to fail to discuss all the factors in Polaski. This Court recognizes that the Eighth Circuit has held:

Although the ALJ did not explicitly discuss each Polaski factor in a methodical fashion, he acknowledged and considered those factors before discounting Brown's subjective complaints of pain. What we said in an earlier case is applicable here: "An arguable deficiency in opinion-writing technique is not a sufficient reason for setting aside an administrative finding where . . . the deficiency probably had no practical effect on the outcome of the case." Benskin, 830 F2d at 883.

Brown v. Chater, 87 F3d 963, 966 (8^th Cir. 1996).