United States District Court, District of South Dakota
Opinion Filed Feb, 1998
Formatting courtesy of The State Bar of South Dakota
and South Dakota Continuing Legal Education, Inc.
222 East Capitol Ave.
Pierre, SD 57501
PATRICK A. DENNY,
Plaintiff,
v.
KENNETH S. APFEL,
Commissioner of Social Security,
Defendant.
[1998 DSD 4]
United States District Court
District of South Dakota - Western Division
CIV. 97-5060
MEMORANDUM OPINION AND ORDER
Opinion Filed Feb, 1998
Richard H. Battey, Chief Judge
NATURE AND PROCEDURAL HISTORY
[¶1] Pending before the Court are cross-motions for summary judgment in this social security case. Plaintiff, Patrick A. Denny (Denny), protectively filed for disability insurance benefits on August 18, 1994, alleging the onset of a disability on May 12, 1994. After being denied through the reconsideration level, he timely requested a hearing which was held before an Administrative Law Judge (ALJ) on January 9, 1996. (A.R. 15). At the hearing, Denny was represented by counsel, James Doyle. Id. Plaintiff's date of birth is July 16, 1954. He was 41 years of age on the date of the ALJ's decision.
[¶2] On March 11, 1996, the ALJ issued his decision granting Denny disability for a closed period, May 12, 1994 to May 31, 1995. (A.R. 20, Finding 12). The ALJ concluded that the disability ended as of May 31, 1995, due to Denny's medical improvement and that he was thus not entitled to disability payments following that date. (A.R. 20, Finding 13). On June 10, 1997, the Appeals Council declined review of the ALJ's determination. (A.R. 3-4). On July 23, 1997, Denny commenced this action to review the Commissioner's final decision denying his claim. See Docket #1.
[¶3] This Court has jurisdiction under 42 USC § 405(g) and 42 USC § 1383(c)(3).
FACTS
[¶4] A. MEDICAL EVIDENCE
[¶5] In 1975, while in the Navy, Denny suffered a broken collar bone and damage to cartilage in the shoulder. (A.R. 30). In 1983, Denny underwent surgery for double hernia. Id. A motorcycle accident in 1986 resulted in the removal of three disks and fusion of several vertebrae. Id. In 1993, a skiing accident resulted in a dislocated shoulder. (A.R. 31). Denny also suffers from a hereditary tremor which limits his writing ability. (A.R. 32). On May 12, 1994, Denny was involved in a motorcycle accident which resulted in fractures of both tibias, the left fibula, and the left patella. (A.R. 110). He also suffered head trauma resulting in unconsciousness and a scalp laceration. Extensive surgery was required to repair the damage to his legs.
[¶6] Denny's treating physician, Dr. Mark Harlow, indicated on December 15, 1994, that there was clinical union of the fractures in his legs and that Denny was walking without the assistance of crutches or a cane. (A.R. 154). On February 6, 1995, Dr. Wayne Anderson indicated on a functional capacity evaluation form that Denny could sit no more than 4 hours, stand no more than 2 hours, and walk no more than 2 hours in an eight-hour work day. (A.R. 155). Dr. Anderson also recommended that Denny lift and carry no more than 10 pounds frequently and no more than 34 pounds occasionally. (A.R. 156). On March 13, 1995, Denny had impairment ratings done by Dr. Anderson which resulted in an 18 percent whole person permanent partial impairment from his back injuries and "12% permanent partial impairment of the left lower extremities secondary to the motorcycle injury." (A.R. 157). Dr. Anderson combined these two impairments to arrive at a 22 percent whole person partial impairment. Id. On September 21, 1995, in a letter to Denny's attorney, Dr. Harlow concluded that Denny is "permanently and totally disabled from all forms of gainful employment, including those that are sedentary in nature." (A.R. 160).
[¶7] Following the ALJ's decision but prior to the Appeals Council's consideration, Denny submitted new evidence of his disability. First, he offered a vocational assessment by Dr. Lynn Meiners dated May 20, 1996, in which Dr. Meiners concludes that Denny was incapable of performing gainful activity. Plaintiff's Brief, exhibit #2. Second, Denny presented evidence from Dr. Anderson, contradicting his prior diagnosis and which supported the conclusion of Dr. Harlow and Dr. Meiners that Denny was incapable of performing any type of work. Plaintiff's Brief, exhibit #3. However, the record does not indicate that the Appeals Council considered the new evidence in its decision to deny review of the ALJ's determination.
[¶8]B. ALJ DECISION
[¶9] In evaluating Denny's claims, the ALJ applied the five-step sequence specified in 20 CFR §§ 404.1520 (Title II), 416.920 (Title XVI). (A.R. 15 - 20).(1) The ALJ first determined that Denny had not engaged in substantial gainful activity since May 12, 1994. (A.R. 16; A.R. 19 (Finding 2)). In step two of the sequential evaluation, he determined that Denny's injuries constituted a severe physical impairment. (A.R. 16; A.R. 19 (Finding 3)). The ALJ concluded in step three of the sequential evaluation that although Denny's physical impairments may be considered "severe," they are not impairments which meet or equal an impairment listed in 20 CFR Part 404, Subpt. P, App. 1. Id. A finding was also made that the injuries predating the 1994 motorcycle accident did not inhibit Denny in any meaningful way. (A.R. 16).
[¶10] The ALJ then concluded that from the day of the accident on May 12, 1994, until clinical union of the fractured bones, May 31, 1995, Denny could not return to his job or perform any other job and was thus disabled. (A.R. 17; A.R. 19 (Finding 4)). As of June 1, 1995, the ALJ determined that based on the medical evidence and testimony, Denny would be unable to return to his past relevant work as a miner because of the exertional requirements involved. (A.R. 18; A.R. 19 (Finding 9)). However, the ALJ concluded that since July 1, 1995, Denny had the residual functional capacity to perform the physical exertional and nonexertional requirements of a full range of sedentary work . (A.R. 18).
[¶11] Under step five of the sequential evaluation, the ALJ acknowledged that the Commissioner had the burden of proving that a significant number of jobs existed in the national and regional economies which Denny could still perform considering his combined medically determinable impairments, functional limitations, age, education, and past work experience. (A.R. 18). The ALJ determined that Denny's nonexertional limitations did not limit his ability to perform a full range of sedentary work. (A.R. 18). Accordingly, the ALJ relied exclusively on the guidelines to determine that Denny was not disabled. 20 CFR Part 404, Subpt. P, App. 2, Rule 201.21; Reed v. Sullivan, 988 F2d 812, 816 (8th Cir. 1993) ("Because the ALJ specifically found . . . that the nonexertional impairments do not significantly diminish [claimant's] RFC to perform a full range of activities listed in the guidelines, the ALJ was correct to rely exclusively on the guidelines in order to determine [claimant's] disability status").
[¶12] The ALJ made a determination that the evidence presented by Denny to support his claim of permanent disability was not sufficient. Specifically, the ALJ discounted Dr. Harlow's conclusion that Denny was "permanently and totally disabled from all forms of gainful employment" as unsubstantiated by any clinical or medical evidence. (A.R. 17). Instead, the ALJ relied on the opinion of Dr. Anderson and the functional capacity evaluation which indicated that Denny had the ability to perform tasks attendant to sedentary work. (A.R. 17).
STANDARD OF REVIEW
[¶13] The decision of the ALJ must be upheld if it is supported by substantial evidence in the record as a whole. 42 USC § 405(g); Metz v. Shalala, 49 F3d 374, 376 (8th Cir. 1995) (citing Sullins v. Shalala, 25 F3d 601, 603 (8th Cir. 1994)); Smith v. Shalala, 987 F2d 1371, 1373 (8th 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 (8th Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971)). 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 (8th Cir. 1993); Locher v. Sullivan, 968 F2d 725, 727 (8th Cir. 1992); Turley v. Sullivan, 939 F2d 524, 528 (8th Cir. 1991). However, the Court's role is to determine whether there is substantial evidence in the record as a whole to support the decision of the Commissioner and not to re-weigh the evidence or try the issues de novo. Murphy v. Sullivan, 953 F2d 383, 384 (8th Cir. 1992). Furthermore, a reviewing court may not reverse the Commissioner's decision "merely because substantial evidence would have supported an opposite decision." Woolf v. Shalala, 3 F3d 1210, 1213 (8th Cir. 1993); Smith v. Shalala, 987 F2d at 1374 (citing Locher, 986 F2d at 727 (quoting Baker v. Heckler, 730 F2d 1147, 1150 (8th Cir. 1984))).
[¶14] In addition to reviewing the Commissioner's decision to determine if it is supported by substantial evidence in the record as a whole, the Court must review the Commissioner's decision to determine if an error of law has been committed. Smith v. Sullivan, 982 F2d 308, 311 (8th Cir. 1992); Nettles v. Schweiker, 714 F2d 833, 836 (8th Cir. 1983). The Commissioner's conclusions of law are only persuasive, not binding, on the reviewing court. Smith, 982 F2d at 311; Satterfield v. Mathews, 483 F. Supp. 20, 22 (E.D. Ark. 1979), aff'd per curiam, 615 F2d 1288, 1289 (8th Cir. 1980).
DISCUSSION
[¶15] Denny primarily uses two arguments to support his request for a remand. First, he contends that new evidence of the extent of his injuries so undermines the ALJ's decision that a remand is required. Plaintiff's Brief at 3. Second, Denny notes that according to Eighth Circuit law the ALJ must give full consideration to the claimant's subjective allegations of pain. In this case, he argues, a remand is necessitated because the ALJ made no inquiry into his assertions of severe pain. Plaintiff's Reply Brief at 6-7. The Court finds merit only in the second argument.
[¶16] A. New Evidence
[¶17] In his decision, the ALJ rejected Dr. Harlow's opinion that Denny was permanently disabled. The ALJ noted that Dr. Harlow's opinion was not supported by any clinical evidence and was therefore, according to the regulations, not to be accorded controlling weight. (A.R. 17). Instead, the ALJ relied upon the opinion of Dr. Anderson which was supported by a functional capacities evaluation. (A.R. 17). Dr. Anderson's evaluation indicated that Denny had the physical ability to perform sedentary work. (A.R. 155-57).
[¶18] Denny contends that the ALJ's decision that Denny's disability ended on May 31, 1995, is not supported by substantial evidence. In support of his claim, Denny argues that the ALJ's rejection of Dr. Harlow's opinion in favor of the opinion of Dr. Anderson was in error. Plaintiff's Brief at 2-3. Denny offers new evidence from Dr. Anderson which contradicts his earlier opinion and concludes that Denny is unable to perform gainful employment. Plaintiff's Exhibit #3. Additionally, Denny offers the vocational assessment of Dr. Meiners to bolster his argument. Dr. Meiners also concluded that Denny is permanently disabled. Plaintiff's Exhibit #2 at 6.
[¶19] The ALJ, as noted in his decision, is not required to give substantial weight to the opinion of a treating physician if it is not supported by clinical evidence. Ostronski v. Chater, 94 F3d 413, 420-21 (8th Cir. 1996) (noting that the ALJ acted properly by giving less than controlling weight to an opinion not supported by clinical evidence); 20 CFR § 404.1527. In this instance there is no accompanying clinical evidence to support Dr. Harlow's assertion that Denny was permanently disabled. Dr. Anderson's opinion was, however, supported by clinical evidence, the functional capacities evaluation. The Court thus finds that the ALJ's initial decision to rely on Dr. Anderson's opinion instead of Dr. Harlow's was correct. The issue then becomes what significance to attach to the post-hearing submissions by Denny.
[¶20] In considering an application for disability benefits, the ALJ is required to consider all the evidence presented in the case record. 42 USC § 423 (d)(5)(B). When additional evidence, not considered by the ALJ, is presented to the Appeals Council it becomes part of the record upon review by the district court. Mackey v. Shalala, 47 F3d 951, 953 (8th Cir. 1995) ("[O]ur task is only to decide whether the ALJ's decision is supported by substantial evidence in the record as a whole including the new evidence deemed material by the appeals Council that was not before the ALJ."). However, there is no indication in the instant case that the Appeals Council considered the new evidence proffered by Denny. Therefore, the Court must determine if the case should be remanded to consider the new evidence.
[¶21] To warrant remand under 42 USC § 405(g) for new evidence, the claimant must show that "there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." See also, Jones v. Callahan, 122 F3d 1148, 1154 (8th Cir. 1997); Smith v. Shalala, 987 F2d 1371, 1275 (8th Cir. 1993).(2) Moreover, "[t]o be material, new evidence must be non-cumulative, relevant, and probative of [the claimant's] condition for the time period for which benefits were denied, and there must be reasonable likelihood that it would have changed the [Commissioner's] determination." Woolf v. Shalala, 3 F3d 1210, 1215 (8th Cir. 1993).
[¶22] Denny's new evidence consists of a vocational assessment by Dr. Lynn Meiners and a letter from Dr. Anderson. Dr. Meiners' opinion that Denny cannot perform any job is based upon her review of his medical file, an interview, an aptitude survey, a functional capacities questionnaire, and a psychological scale comparison. Plaintiff's Exhibit #2 at 1. At no time did she conduct a medical examination of Denny. Dr. Anderson's letter indicates that after further review of the medical records, five months after the ALJ decision, he believed that Denny was incapable of any gainful employment. Plaintiff's Exhibit #3. Again, there is no indication that his opinion was based upon a physical examination of Denny.
[¶23] The Court concludes that neither of these opinions warrant a remand. An opinion reached by a physician is accorded less significance when it is reached without a physical examination. 20 CFR § 404.1527(d)(1) ("[W]e give more weight to the opinion of a source who has examined [the claimant] than to the opinion of a source who has not.") In addition, the ALJ discounted Dr. Harlow's opinion based upon a dearth of clinical evidence. Likewise, the opinions of Dr. Meiners and the revised opinion of Dr. Anderson lack sufficient clinical support. While Dr. Meiners' evaluation lists the survey and psychological evaluation results used to reach her conclusion, her opinion was based only on observation and not a physical examination of Denny. Dr. Anderson's opinion is conclusory and unsupported by any medical evidence. Most glaring is that Dr. Anderson's latest assertion is not based upon a physical examination of Denny but merely a review of his records. As a result, the Court is not convinced that this new evidence presents a reasonable likelihood that the denial of benefits would have been altered and is thus not material.
[¶24] B. Subjective Pain
[¶25] It is well established that an ALJ faced with subjective complaints of pain must make a credibility determination. Polaski v. Heckler, 739 F2d 1320, 1321-22 (8th Cir. 1984). In so doing the ALJ should consider: "(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." Id. Furthermore, an ALJ "may discredit subjective complaints of pain only if they are inconsistent with the evidence on the record as a whole. Delrosa v. Sullivan, 922 F2d 480, 485 (8th Cir. 1991) (citing Rainey v. Bowen, 814 F2d 1279 (8th Cir. 1987). Also,"an applicant need not be completely bedridden . . . to be considered disabled." Ludden v. Bowen, 888 F2d 1246, 1248 (8th Cir. 1989) (quoting Easter v. Bowen, 867 F2d 1128, 1130 (8th Cir. 1989)). In any case the ALJ is required to make inquiry into this area.
[¶26] In the instant case, the ALJ recognized that Denny's subjective complaints needed to be addressed. The ALJ noted in step two that subjective complaints were one of the factors to be considered in determining the residual functional capacity of the claimant. (A.R. 16). The Court concludes that the ALJ did consider Denny's subjective complaints of pain in his analysis and found them not credible.
CONCLUSION
[¶27] Given all the evidence in the record and the additional evidence presented by Denny, the Court finds that the decision of the Commissioner finding Denny not disabled is supported by substantial evidence.
[¶28] Accordingly, it is hereby
[¶29] ORDERED that the Commissioner's motion for summary judgment (Docket #18) is granted. Judgment shall be issued against Denny and in favor of the Commissioner. Costs shall not be assessed against Denny.
Footnotes
1. The determination of whether a claimant is entitled to Title II disability insurance benefits or Title XVI supplemental security income benefits must be made according to the following five-step sequential evaluation. See 20 CFR § 404.1520 (Title II); 20 CFR § 416.920 (Title XVI). Step One: The ALJ must determine if the claimant is engaged in "substantial gainful activity." If so, the claimant cannot be found disabled. Step Two: If the claimant is not engaged in substantial gainful activity, the ALJ must determine if the claimant suffers from a "severe impairment." Step Three: If the claimant does have a severe impairment, the ALJ must next determine if this impairment meets or equals an impairment listed in 20 CFR Part 404, Subpt. P, App. 1. If the claimant has a listed impairment, then the claimant must be found to be disabled. Step Four: If the claimant does not have a listed impairment, the ALJ must determine whether the claimant can return to his or her past relevant work. If the claimant can return to past relevant work, he or she is not entitled to benefits. Step Five: If the claimant cannot return to past relevant work, then the burden shifts to the Commissioner to demonstrate that the claimant can do some other work which exists in substantial numbers in the national economy. If the Commissioner does not carry this burden, the claimant must be found to be disabled.
2. The Court finds that Denny has demonstrated a good faith effort to incorporate the new evidence into the record before the Appeals Council considered the case. See Affidavit of Mailing attached as exhibit #1 to Plaintiff's Reply Brief.