United States District Court, District of South Dakota
Opinion Filed Apr 3, 1998
Formatting courtesy of The State Bar of South Dakota
and South Dakota Continuing Legal Education, Inc.
222 East Capitol Ave.
Pierre, SD 57501
LOIS A. FRANCK,
KENNETH S. APFEL,
Commissioner of Social Security,
[1998 DSD 8]
United States District Court
District of South Dakota - Western Division
MEMORANDUM OPINION AND ORDER
Opinion Filed April 3, 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 January 6, 1995, plaintiff Lois A. Franck ("Franck") protectively filed for disability insurance benefits under Title II of the Social Security Act, 42 USC §§ 401-433. Franck claimed that the onset of her disability was December 30, 1988. Based upon her earning status, Franck was last insured under social security regulations on March 31, 1991. Based upon Franck's claim, the period of claimed disability is for the period December 30, 1988, to March 31, 1991. Her application for benefits was denied through the reconsideration level. She subsequently requested a hearing in front of an Administrative Law Judge (ALJ). Said hearing was held on October 22, 1996.
[¶2] On December 17, 1996, the ALJ issued his decision denying Franck's claim for disability insurance benefits for the period beginning December 30, 1988, and ending March 31, 1991. (A.R. 38 - 44). On September 9, 1997, the Appeals Council declined review of the ALJ's determination. (A.R. 4-5). On November 5, 1997, Franck 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] Franck suffered from several maladies, before, during, and subsequent to the time period in question. In the reconsideration disability report Franck listed the following, either individually, or in combination as the source of her disability: congestive heart failure diagnosed in 1984; asthma diagnosed in 1990; allergies; cluster headaches, diabetes diagnosed in 1990, back pain from degenerative disk disease; a broken hip in 1994; injured knee cap in 1994; arthritis and bursitis in hips and shoulders; carpal tunnel syndrome; Graves disease diagnosed in the early 1990s; colitis and irritable bowel syndrome; and anxiety disorder including panic attacks since childhood.(fn1) (A.R. 132-33).
[¶6] Franck was born on May 15, 1942, and was 54 years old at the time of the ALJ hearing. (A.R. 105). She attended high school through the 11th grade and does not have a GED. (A.R. 73).
[¶7] B. ALJ Decision
[¶8] In evaluating Franck'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).(2) Based upon Franck's earning records, the ALJ first determined that Franck last met the insured status on March 31, 1991. (A.R. 39). The ALJ next found that Franck had not engaged in substantial gainful activity since December 30, 1988. (A.R. 39; A.R. 43 (Finding 2)). Although Franck performed some work after December 30, 1988, it was for short segments and only temporary in nature and thus not considered substantial gainful activity. (A.R. 39).
[¶9] In step two of the sequential evaluation, the ALJ determined that the degenerative disk disease, enlarged thyroid, and diabetes from which Franck suffered combined to constitute a severe impairment according to the regulations. (A. R. 39; A.R. 43 (Finding 3)). The ALJ concluded in step three of the sequential evaluation that although Franck'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. (A.R. 39 - 40; A.R. 43 (Finding 3)).
[¶10] In step four of the sequential evaluation, the ALJ determined that based on the medical evidence and testimony, Franck was capable of performing her past relevant work as a teacher's aide/playground assistant, a position she last held in 1979. (A.R. 43; A.R. 44 (Finding 6)). The ALJ made a determination that Franck's testimony as to subjective complaints was not fully credible concerning her abilities to perform work during the time period in question. (A.R.42; A.R. 44 (Finding 4)). The ALJ concluded that during the relevant period Franck had the residual functional capacity to perform past relevant work and was thus not disabled. (A.R. 43; A.R. 44 (Findings 7 and 8 )).
STANDARD OF REVIEW
[¶11] 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))).
[¶12] 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).
[¶13] In support of her motion for summary judgment, Franck contends the ALJ's decision was in error for the following reasons: (1) the ALJ failed to consider all of her impairments; (2) the ALJ failed to properly assess Franck's subjective symptoms and make a credibility assessment; (3) the ALJ failed to develop the record concerning the onset of her mental disorders; and (4) the ALJ found that she could perform past work as a teacher's aide. Plaintiff's Brief in Support of Motion for Summary Judgment (Plaintiff's Brief) at 11.
[¶14] A. Failure to Consider the Combined Effects of All Impairments
[¶15] Franck argues that the ALJ did not properly consider her mental illness along with the physical impairments and that failure to do so requires a remand. Plaintiff's Brief at 11 - 12. In his decision, the ALJ explored the various psychological problems alleged by Franck and concluded that they were not supported by the medical evidence. He first considered Dr. Pfeiffer's mention of possible depression in 1982 but noted that there was no prescribed treatment or follow-up. (A.R. 42). The ALJ also noted that Franck complained to the doctors at Ellsworth Air Force base in 1991 that her hot flashes may be psychologically based. No treatment, including use of drugs, was recommended and no follow-up was suggested. Finally, the ALJ discounted the 1995 diagnosis of major depression as too far removed, almost four years, from Franck's ability to perform work prior to March 31, 1991. Id.
[¶16] The Court concludes that the ALJ underwent a thorough examination of the evidence pertaining to Franck's mental condition. His conclusion that Franck could perform past relevant work reflected both her physical and mental capabilities prior to March 31, 1991. Franck's claim that the ALJ did not properly consider her mental condition is without merit.
[¶17] B. Assessment of Subjective Complaints
[¶18] Franck contends that the ALJ did not properly consider her subjective complaints in reaching his conclusion. She first takes issue with the ALJ's refusal to include in his calculus the medical evidence subsequent to March 31, 1991, her date last insured. Plaintiff's Brief at 12. Her second complaint is that the ALJ failed to follow the procedure prescribed by the Eighth Circuit for analyzing subjective complaints. Id.
[¶19] 1. Medical Evidence
[¶20] The Eighth Circuit has held that medical evidence of a claimant's condition should not be discounted solely because it follows the date last insured. Parsons v. Heckler, 739 F2d 1334, 1340 (8th Cir. 1984) (noting that "the mere fact that the examination was made following the expiration of insured status does not automatically make the examination irrelevant."). In the instant case, the ALJ acknowledged that Franck was diagnosed with major depression in 1995 and that she then began psychotherapy. (A.R. 42). The ALJ did not give this medical evidence much weight since it related to Franck's condition four years after the date last insured. Id. Instead of focusing on this evidence, the ALJ emphasized the medical evidence during the time period in question in support of his determination. Thus, the ALJ did not discount the 1995 diagnosis simply because it came after the date Franck was last insured but rather because he felt it was too attenuated and there was other medical evidence which concerned the time frame in question. The Court finds no error in the ALJ's affinity for records from the time in question rather than for those significantly removed.
[¶21] 2. Polaski Analysis
[¶22] Franck also contends that the ALJ neglected to undergo the analysis prescribed by the Eighth Circuit in addressing subjective complaints. Plaintiff's Brief at 12.
[¶23] Social Security Ruling 96-7p indicates that an ALJ must make a finding concerning credibility when there is an underlying physical or mental impairment which could explain the complaints of the claimant. 1996 WL 374186 *1 (S.S.A.); 20 CFR § 404.1529. Additionally, a credibility assessment is not satisfied by merely "recit[ing] the factors that are described in the regulations for evaluating symptoms." 1996 WL 374186 at *2. An ALJ must make specific findings and explain why the subjective complaints were not credible. Id. The Court finds that the ALJ's findings in this regard are supported by substantial evidence in the record as a whole.
[¶24] The ALJ examined the record for the period in question and concluded that it did not support Franck's subjective complaints. (A.R. 40-41) ("If the claimant's subjective complaints and limitations could be accepted as fully credible, the claimant would be found disabled. However, the record, when viewed as a whole (for the time period in review), simply does not substantiate the claimant's significant complaints and allegations."). From this statement he went on to highlight portions of the medical record which supported his conclusion. The ALJ did consider the Polaski factors. (A.R. 40).
[¶25] C. Onset Date of Depression and Anxiety
[¶26] Franck argues that the ALJ failed to properly develop the record concerning the onset date of her emotional problems. Plaintiff's Brief at 19. Specifically, Franck contends that since she was diagnosed with depression in 1995 and she had complained of symptoms that could possibly be related to depression and anxiety disorders during the relevant period, further examination should have been made into the onset date of her mental impairment. Id. at 19-21.
[¶27] The ALJ found that the diagnosis of depression in 1995 was too far removed from the relevant time period to be of significance. (A.R. 42). The ALJ also extensively examined the medical records for the time period in question and found little to bolster Franck's claims of anxiety or depression. Id. He noted that there was no medical evidence to support her claims and no treatment prescribed by the various doctors who treated her. Therefore, having concluded that there was no medical evidence of any kind to support her claims of emotional impairments, it was not incumbent upon the ALJ to ascertain an alleged onset date.
[¶28] To bolster her claim Franck cites to The Merck Manual to conclude that the symptoms of which she complained can sometimes be associated with her later diagnosed emotional disturbance. Plaintiff's Brief at 9. This argument, along with her reliance on a diagnosis of depression four years after the date last insured to maintain that the ALJ should have determined when her depression began, is unpersuasive.
[¶29] D. Past Relevant Work
[¶30] Franck also takes issue with the ALJ's finding that she maintained the ability to perform past relevant work as a teacher's aide/playground assistant. Plaintiff's Brief at 21. She argues that due to her lack of education and cognitive abilities she would no longer be able to work in this capacity. The Court disagrees.
[¶31] At the time that Franck performed her duties as a teacher's aide in 1979 she possessed the same degree of education as she does today. The physical restrictions of which she complained could be accommodated in such a position enabling her to perform it during the time period in question. Thus the ALJ's determination was supported by substantial evidence.
[¶32] Franck contested the ALJ's decision that she was not disabled under the regulations for several reasons, primarily for failure to address her subjective complaints. The ALJ considered the necessary factors to consider in his evaluation of Franck's credibility. The ALJ's findings are supported by substantial evidence in the record as a whole.
[¶33] Accordingly, it is hereby
[¶34] ORDERED that plaintiff's motion for summary judgment is denied.
[¶35] IT IS FURTHER ORDERED that defendant's motion for summary judgment is granted. Judgment shall be issued in favor of defendant and against plaintiff.
1. Several of the records from Franck's treatment throughout the 1980s at Ellsworth Air Force Base have not been located. (A.R. 78, 103, 486-88).
2. 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.