United States District Court, District of South Dakota
Opinion Filed Mar 5, 1998
Formatting courtesy of The State Bar of South Dakota
and South Dakota Continuing Legal Education, Inc.
222 East Capitol Ave.
Pierre, SD 57501
ELIZABETH N. CAMPBELL,
KENNETH S. APFEL,
Commissioner of Social Security,
[1998 DSD 7]
United States District Court
District of South Dakota - Western Division
MEMORANDUM OPINION AND ORDER
Opinion Filed Mar 5, 1998
RICHARD H. BATTEY, CHIEF JUDGE
NATURE AND PROCEDURAL HISTORY
[¶1] Pending before the Court are cross-motions for summary judgment by both parties in this social security case. On August 25, 1994, plaintiff protectively filed for disability insurance benefits under Title II of the Social Security Act 2, USC §§ 401-433. Plaintiff claims that the onset of her disability was June 30, 1993.
[¶2] On August 30, 1996, the ALJ issued his decision denying Campbell's claim for disability insurance benefits for the period beginning June 30, 1993, and ending August 12, 1994. The ALJ determined that Campbell was not disabled prior to August 12, 1994, according to social security regulations. (A.R. 32; Finding 7). On June 20, 1997, the Appeals Council declined review of the ALJ's determination. (A.R. 3-4). On August 18, 1997, Campbell commenced this action to review the Commissioner's final decision denying her claim. See Docket #1.
[¶3] This Court has jurisdiction under 42 USC § 405(g) and 42 USC § 1383(c)(3).
[¶4] A. MEDICAL EVIDENCE
[¶5] Campbell suffers from several maladies, the most serious of which is multiple sclerosis (MS), a Listing 11.09(C), 20 C.F. R. Part 404, Subpart P, Appendix 1 impairment, for which she receives disability insurance as of August 12, 1994. Her multiple sclerosis was first diagnosed in 1991. (A.R. 60, 99). For the time period in question for this inquiry, June 30, 1993 to August 12, 1994, in addition to MS and its attendant symptoms, Campbell also suffered from neck and back pain requiring chiropractic assistance, migraine headaches for which painkillers were prescribed, hypertension, and obesity. (A.R. 99). Campbell also suffers from a mental condition for which the drug Xanax was prescribed. (A.R. 30).
[¶6] B. ALJ DECISION
[¶7] In evaluating Campbell's claims, the ALJ applied the five-step sequence specified in 20 CFR §§ 404.1520 (Title II), 416.920 (Title XVI). (A.R. 28-32).(fn1) The ALJ first determined that Campbell had not engaged in substantial gainful activity since June 30, 1993. (A.R. 28-29; A.R. 32 (Finding 2)). Although Campbell was employed at various times during the relevant period it was for short segments and only temporary in nature and thus not considered substantial gainful activity. Id. In step two of the sequential evaluation, the ALJ determined that Campbell's MS constituted a severe physical impairment. (A.R. 29; A.R. 32 (Finding 3)). The ALJ concluded in step three of the sequential evaluation that although Campbell's physical impairments were considered "severe," they were not impairments which met or equaled an impairment listed in 20 CFR Part 404, Subpt. P, App. 1. Id.
[¶8] In step four of the sequential evaluation, the ALJ determined that based on the medical evidence and testimony, Campbell was capable of performing her past relevant work as a business manager, secretary, or dispatcher. (A.R. 31-32; A.R. 32 (Finding 6)). The ALJ found support for this determination in the temporary work that Campbell performed as well as the opinion of the DDS medical consultant, Dr. James H. Chalmers. (A.R. 31-32). The ALJ made a determination that Campbell's "testimony is relatively credible, but not to the extent she contends she was disabled prior to August 12, 1994." (A.R. 32 (Finding 4)). The ALJ concluded that during the relevant period Campbell had the residual functional capacity to perform a full range of light work and was thus not disabled. (A.R. 31; A.R. 32 (Finding 5)).
STANDARD OF REVIEW
[¶9] 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))).
[¶10] 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 FSupp 20, 22 (E.D. Ark. 1979), aff'd per curiam, 615 F2d 1288, 1289 (8th Cir. 1980).
[¶11] In support of her motion for summary judgment, Campbell contends the ALJ's decision was in error for the following reasons: (1) the ALJ's failure to assess Campbell's credibility concerning her subjective complaints of pain; (2) failure to assess Campbell's subjective symptoms; (3) rejection of the opinion of Dr. A. S. Lopez concerning Campbell's condition; (4) according controlling weight to the DDS consultant who did not perform an examination of Campbell and was not her treating physician; (5) failure to complete Psychiatric Review Technique Form (PRTF); (6) failure to consider the combined effect of all of Campbell's impairments; (7) concluding that Campbell was able to perform light work on August 11, 1994, but not August 12, 1994, when her impairment was a progressive illness; and (8) failure to determine the physical and mental demands of Campbell's past relevant work and whether she had the residual functional capacity to perform that work. See Brief in Support of Motion for Summary Judgment (Plaintiff's Brief) at 12.
[¶12] 1. Assessment of subjective complaints
[¶13] In the Eighth Circuit when faced with a claimant's subjective complaints an ALJ shall expressly address the claimant's credibility. Shelton v. Chater, 87 F3d 992, 995 (8th Cir. 1996); Hall v. Chater, 62 F3d 220, 223 (8th Cir. 1984) ("When making a determination based upon [the Polaski] factors to reject an individual's complaints, the ALJ must make an express credibility finding and give his reasons for discrediting the testimony"). Moreover, there is a prescribed manner to the required inquiry. The case of Polaski v. Heckler, 739 F2d 1320, 1321-22 (8th Cir. 1984) requires that an ALJ consider the following five factors when making a credibility assessment: "(1) the claimant's daily activities, (2) the duration, frequency and intensity of the pain, (3) dosage, effectiveness, and side effects of medication, (4) precipitating and aggravating factors, and (5) functional restrictions."
[¶14] In this case, when faced with Campbell's subjective complaints, the ALJ did make a determination as to her credibility. However, he neglected to explain his findings or undergo the Polaski analysis. At the hearing of July 16, 1996, Campbell repeatedly discussed the physical pain emanating from her back and neck, as well as from migraine headaches. (A.R. 44, 45, 46, 47). She also explained the limiting effects she felt from having MS, such as fatigue, weakness, and lack of concentration. (A.R. 43, 47, 48, 49, 50, 52, 53, 57, 59, 60). The ALJ concluded that Campbell's "testimony is relatively credible, but not to the extent she contends she was disabled prior to August 12, 1994." (A.R. 32 (Finding 4)). This is the only mention of Campbell's credibility in the decision. There is no mention of the Polaski standard nor an examination of its factors as they pertain to Campbell's complaints. The Court finds that the ALJ erred by not expressly evaluating Campbell's subjective complaints as prescribed by Polaski.
[¶15] 2. Failure to accord weight to statements of Dr. Lopez
[¶16] Campbell further contends that the ALJ should have considered the opinion of Dr. A. S. Lopez, Campbell's former employer, in his analysis. Dr. Lopez outlined the decline in Campbell's performance as her MS developed and at one point considered terminating her employment due to her diminished capabilities. (A.R. 175-76). He also concludes, as an employer, that the onset of her disability should be set back to "at least June 1993." (A.R. 76). The ALJ "accorded no weight" to the opinion of Dr. Lopez since his statement was in 1996 and was based only on his observations not on an examination. (A.R. 30).
[¶17] While the ALJ was not required to grant deference to the statement of Dr. Lopez, in cases involving degenerative disease the observations of third parties is to be considered. Grebenick v. Chater, 121 F3d 1193, 1197-98 (8th Cir. 1997) ("Once the diagnosis is established, but the severity of the degenerative condition during the relevant period is unanswered, the claimant may fill the evidentiary gap with lay testimony. The ALJ must consider this evidence, even if it is uncorroborated by objective medical evidence"). Examination of the record reveals that the ALJ did consider the opinion of Dr. Lopez as a lay witness but rejected it as made in hindsight and based upon observation of Campbell prior to the relevant period. (A.R. 30).
[¶18] 3. Weight given to assessment of DDS consultant
[¶19] Campbell further contends that the ALJ's reliance on the opinion of a non-treating DDS consultant was in error. She attacks the weight accorded to this opinion for three reasons: (1) her counsel had no opportunity to cross-examine the consultant; (2) the residual functional capacity assessment was based only upon Campbell's complaints of headaches; and (3) the consultant's findings had been reversed upon receipt of new evidence. Plaintiff's Brief at 19. The Court finds that the ALJ's reliance on this evaluation which occurred in December, 1994, was misplaced. However, the ALJ did not exclusively or even primarily depend on this report in reaching his conclusion that Campbell was not disabled during the relevant period.
[¶20] Since the DDS consultant used only neurology records of Campbell and did not actually perform an examination, the opinion reached by the consultant represents only a small part of the total picture. It is conceded that Campbell was diagnosed with MS in 1991, and she also complained frequently of back and neck pain. The consultant primarily relied upon medical records from Black Hills Neurology to reach the opinion that Campbell could perform a full range of light work. (A.R. 124-32). As such the consultant's opinion is limited and could not form the primary basis for a finding of no disability. The ALJ based his opinion only in part on input from the DDS consultant. The ALJ found Campbell's work during the relevant period much more damaging to her claims of disability. (A.R. 31). The ALJ also found Campbell's statement that "I fully earned my pay up until 4/15/94" significant in that it demonstrated her capabilities during the relevant period. (A.R. 31). As such the ALJ's assignment of weight to the consultant's opinion was not necessarily determinative.
[¶21] 4. Failure to complete a PRTF
[¶22] Campbell faults the ALJ for not completing a Psychiatric Review Technique Form (PRTF) to determine her mental condition during the relevant period. Plaintiff's Brief at 20. After considering Campbell's claims of depression and anxiety for the relevant period, the ALJ found that "there is no medical documentation of any medically determinable mental impairment prior to August 12, 1994." (A.R. 31). Campbell contends that whenever a "showing of mental impairment is made, as in this case, the ALJ does not have discretion to omit" completion of the PRTF. Plaintiff's Brief at 20. However, the Eighth Circuit requires that in order to establish a mental impairment "there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment." Brown v. Shalala, 15 F3d 97, 98 (8th Cir. 1994). Campbell does not indicate, nor could the Court find, any medical diagnosis of a mental impairment in the record for the period in question. The ALJ's failure to complete a PRTF was not in error.
[¶23] 5. Failure to consider the combined effects of all impairments
[¶24] Campbell argues that the ALJ improperly diminished the significance of the reports of Campbell's treating chiropractor. Specifically, she contends that the ALJ should have given greater significance to the 76 chiropractic treatments received by her. Plaintiff's Brief at 21. The ALJ correctly recognized that treatment by a chiropractor is not afforded the same weight as treatment by a physician. (A.R. 31) (citing 20 CFR § 404.1513(a)). The ALJ then noted that chiropractic treatment is admissible and went on to consider it in the present case. He concluded that the evidence should be afforded little weight. (A.R. 31). He based this finding on the circumstances surrounding the treatments (in one case Campbell's migraine came on the heals of a 2200 mile car trip, physical exertion, and the death of her mother). Id. The ALJ's examination of the chiropractor's notes demonstrates that he adequately considered this evidence in reaching his conclusion to downplay its significance. Moreover, the ALJ specifically states that Campbell's impairments "singly or jointly" are not severe and the record indicates that he adequately considered them all in reaching his decision. (A.R. 29). The Court finds no error in the ALJ's determination on this issue.
[¶25] 6. Determining the exact onset date
[¶26] Campbell finds it difficult to fathom how she could be considered disabled on August 12, 1994, but not on August 11, 1994, though she suffered from a degenerative condition. Plaintiff's Brief at 22. In support of this argument Campbell cites the Social Security Administration's procedural manual as well as sections of the Code of Federal Regulations pertaining to exacerbating and remitting illnesses, primarily mental illness. Id. at 22-23.
[¶27] 7. Failure to determine the exertional levels of past relevant work
[¶28] Campbell's final argument concerns the ALJ's failure to ascertain the physical and mental demands of her past relevant work and his assessment that she retained the ability to perform these functions. Plaintiff's Brief at 24.
[¶29] The Commissioner has promulgated specific guidelines that the ALJ must follow when determining if a claimant is able to perform past relevant work. Salts v. Sullivan, 958 F2d 840, 844 (8th Cir. 1992). The Eighth Circuit has held that "the ALJ must specifically set forth the claimant's physical and mental limitations, along with the physical and mental requirements of the claimant's past work." Id. Only when the ALJ does so can it be properly determined if the claimant is capable of performing past relevant work. An ALJ's conclusory statement that a claimant is able to perform past relevant work is not sufficient. Id. (citing Groeper v. Sullivan, 932 F2d 1234, 1238 (8th Cir. 1991)).
[¶30] In this case the ALJ made no findings concerning Campbell's past relevant work. He merely relied on the fact that she had performed some secretarial duties on a part-time basis during the relevant period. (A.R. 31). Based upon this and the opinion of the DDS consultant, the ALJ concluded that Campbell had the residual functional capacity to perform light work and that therefore she could perform her past relevant work as a secretary. (A.R. 31-31). The ALJ did not set forth the physical and mental requirements of the past jobs which he felt Campbell was capable of performing. Salts, 958 F2d at 844. This conclusory opinion does not satisfy the requirements prescribed by the Eighth Circuit.
[¶31] The determination of Campbell's ability to perform past relevant work should not be lightly considered. The Eighth Circuit in addressing this issue stated:
The decision as to whether the claimant retains the functional capacity to perform past work which has current relevance has far-reaching implications and must be developed and explained fully in the disability decision. Since this is an important and, in some instance, a controlling issue, every effort must be made to secure evidence that resolves the issue as clearly and explicitly as circumstances permit.
Kirby v. Sullivan, 923 F2d 1323, 1326 (8th Cir. 1991).
[¶32] This case involved a determination as to the onset date of Elizabeth Campbell's disability. She originally applied for benefits based upon an onset date of August 12, 1994. This application was denied and she requested reconsideration but changed the onset date to June 30, 1993. At the reconsideration level it was determined that she became disabled on August 12, 1994. Campbell then requested a hearing to determine the onset date. The ALJ found that she was not disabled prior to August 12, 1994. This finding is not supported by substantial evidence in the record as a whole.
[¶33] Accordingly, it is hereby
[¶34] ORDERED that judgment shall issue in favor of plaintiff awarding benefits for the period June 30, 1993, to August 12, 1994.
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.