United States District Court, District of South Dakota
Opinion Filed Apr 7, 1998
Formatting courtesy of The State Bar of South Dakota
and South Dakota Continuing Legal Education, Inc.
222 East Capitol Ave.
Pierre, SD 57501
NORMANDIE J. WILEY,
KENNETH S. APFEL,(fn1)
Commissioner of Social Security,
[1998 DSD 10]
United States District Court
District of South Dakota - Western Division
MEMORANDUM OPINION AND ORDER
Opinion Filed April 7, 1998
RICHARD H. BATTEY, CHIEF JUDGE
I. PROCEDURAL HISTORY
[¶1] On March 10, 1995, plaintiff Normandie J. Wiley ("Wiley") filed an application for disability benefits under Title II of the Social Security Act ("the Act"), 42 USC §§ 401-33, and an application for Supplemental Security Income ("SSI") benefits under Title XVI, 42 USC § 1381-1383. Wiley alleges an onset date of May 22, 1993. Her applications were denied initially and upon reconsideration. Wiley then requested a hearing before an Administrative Law Judge ("ALJ"). A hearing was held by ALJ Robert Maxwell on August 22, 1996, and on September 18, 1996, he issued on opinion denying Wiley benefits. Wiley filed a request for review before the Appeals Council which was denied. Wiley then filed a complaint with this Court seeking relief.
[¶2] Wiley was born on March 21, 1952. She is forty-six years old. AR 82. She is married and has one daughter and two sons. AR 29, AR 83. Wiley graduated from high school and completed two years of vocational training in the area of architectural drafting. AR 29.
[¶3] From August of 1978 to May of 1992, Wiley worked for the Hertz Corporation in reservations. AR 31. From April of 1993 until her accident in May of 1993, Wiley worked as a house parent in Custer, South Dakota, at the South Dakota Developmental Center ("SDDC"). AR 31-32. In April of 1993, Wiley slipped and fell on a wet floor at the SDDC. Wiley's fall resulted in pain in her lower back. AR 33. Wiley states that she still suffers from lower back pain as a result of this fall. She did not return to work at the SDDC. AR 34.
[¶4] According to Wiley, her condition keeps her from working because she is unable to do any lifting, stand for long periods of time, or sit for long periods of time. AR 92. Wiley complains of lower back pain and hip pain. AR 92.
[¶5] After her accident, Wiley had several short term jobs. She worked as a teacher's assistant, a substitute teacher, a secretary, and assisted a school district in logging in their books. When working as a teacher's assistant, she worked for about six hours a day for five days a week. AR 35. Wiley testified that she would lay down at least once a day. AR 35. Usually, she would lay down during her lunch hour. AR 35. This job lasted approximately two weeks. AR 35. Wiley substituted for the Hot Springs and Wounded Knee School Districts. She substituted for Wounded Knee on two different days and did not recall exactly how many days she substitute taught for Hot Springs. AR 38-39. Wiley testified that after substitute teaching, she was in such pain by the end of the day that she went home and went to bed. AR 36-37. Wiley's next job was working as a secretary for approximately two months. AR 45. When working as a secretary, she worked three to four days a week for approximately six hours a day. AR 41. At this job if Wiley was not feeling well, she was permitted to go home and lie down. AR 41-42.
[¶6] Wiley testified that the intensity of her pain in her back will vary. AR 45-46. She stated that there are some days where she is pain free, but that she has not gone a week without experiencing any pain. AR 46. According to Wiley, she does housework and sometimes this will result in pain. AR 47. When washing dishes, Wiley stated that if she overdoes it that she will experience pain. AR 46. When washing dishes or doing household chores, Wiley may take breaks before she has completed a chore. AR 47-48. Wiley also sometimes does the cooking and the laundry. AR 49. According to Wiley, how often Wiley lies down varies depending on her pain, and she tries not to take any pain medication. AR 47, 59. Normally, she will lie down for an hour a day, but on bad days she will lie down longer. AR 54.
[¶7] As to Wiley's limitations, she testified that in an eight-hour day she could sit for a total of three hours and stand for a total of two hours. AR 50. She stated that she is able to stand in one place without shifting for ten to fifteen minutes before she would experience pain. AR 50. Wiley tries not to lift "anything too heavy." AR 51. Wiley testified that she is able to ride in a car from five to twenty minutes before she must get out of the car to stretch. AR 52. In January 1995, Wiley was walking three miles a day. AR 60. However, at the time of the administrative hearing, Wiley was supposed to be walking two to three miles a day but she had not been walking as the doctor had prescribed. AR 60. See also AR 149-154 (Wiley's personal pain questionnaire).
[¶8] Wiley's husband also testified as to her limitations. AR 65-69. According to her husband, when performing sitting activities she will often get up and walk around. Wiley's treating physician, Dr. Goff, limited her to sedentary work from July of 1993 to January of 1995. AR 95, 164-172 . In October and November of 1994, Dr. Goff stated that Wiley was not functioning at a full-time sedentary level. AR 170, 171. In November of 1994, Dr. Goff felt that Wiley could work at a part-time sedentary job. AR 171. A functional capacities assessment ("FCA") dated May 3, 1995, concluded that Wiley could occassionally lift ten pounds, frequently lift less than ten pounds, stand or walk for a least two hours in an eight-hour work day, and sit for about six hours in an eight-hour work day. AR 109. In January of 1994, another FCA was done which concluded that Wiley could perform sedentary work. AR 191.
III. DECISION OF THE ALJ
[¶9] In assessing the sequential process(fn2) which is required when determining if an individual is disabled pursuant to the Social Security Act, the ALJ first concluded that Wiley has not performed any substantial gainful activity since the date of the alleged onset of her disability. Second, the ALJ found that Wiley suffered from a severe medical impairment. However, in the opinion of the ALJ, the severe medical impairment which Wiley suffers 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. (1997).
[¶10] The ALJ's last step in determining whether Wiley is disabled was to consider whether she could perform past work or other work within the national economy. In reaching a conclusion, the ALJ concluded that Wiley's testimony as to her subjective complaints and her limitations was not fully credible. In assessing Wiley's credibility, the ALJ considered the medical evidence contained in the record (including the records of Wiley's treating physician Dr. Steven Goff), the functional capacities assessment (Exhibit 30), the vocational assessment (Exhibit 24), and Wiley's daily activities. The ALJ found that Wiley could not perform her past relevant work as a car rental reservationist, but that there are a significant number of jobs within the national economy which Wiley is able to perform. The ALJ found that
claimant has the residual functional capacity to perform the physical exertion and nonexertional requirements of work except for lifting of more than 15 pounds on an very occasional basis and walking or standing for extended periods in an eight hour day. She can occasionally climb stairs, however should perform no stooping, crouching or kneeling. (20 CFR 404.1545 and 416.945).
AR 19. The ALJ concluded that Wiley has a residual functional capacity to perform light work, but that her "full range of light work is reduced by her limited lifting requirement and non-exertional limitations." AR 20. The ALJ concluded that the medical/vocational guidelines ("guidelines" or "grids"), 20 CFR 404, Subpt. P, App. 2, directed a finding that Wiley was not disabled through the date of his decision.
IV. STANDARD OF REVIEW
[¶11] 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 (8th Cir. 1995) (citing Sullins v. Shalala, 25 F3d 601, 603 (8th 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 (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)). See also Onstead v. Sullivan, 962 F2d 803 (8th Cir. 1992) (quoting Whitehouse v. Sullivan, 949 F2d 1005, 1007 (8th 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 (8th Cir. 1993); Locher v. Sullivan, 968 F2d 725, 727 (8th Cir. 1992); Turley v. Sullivan, 939 F2d 524, 528 (8th Cir. 1991).
[¶12] However, 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 (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))). 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 v. Sullivan, 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). 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.
[¶13] For Wiley to be eligible for disability insurance benefits, she must be under a disability at the time she 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.(fn3) See Evaluation of Disability Rule, 20 CFR § 404.1520 (1997). In order for Wiley to be eligible for benefits, she is required to show that she was unable to perform any substantial gainful activity for at least twelve consecutive months prior to her date-last-insured. Specifically, Wiley has stated three objections to the ALJ's conclusion: (1) that the ALJ's failure to rely on the vocational expert's testimony in reaching his conclusion was error; (2) that the ALJ's failure to rely on Wiley's treating physician's opinion was error; and (3) that the ALJ's credibility determination is not supported by substantial evidence.
[¶14] A. Significant Jobs Within the National Economy
[¶15] Wiley's first objection alleges that it was error for the ALJ to conclude that there are a significant number of jobs within the national economy which she could perform based upon the grid. Wiley argues that the grids are not controlling given the nonexertional impairments from which she suffers. If a claimant's profile matches one of the rules set out in the grids in Appendix 2 of 20 CFR Part 404, Subpt. P, the rule then indicates whether or not a claimant is disabled. In this case, the ALJ concluded Wiley was not disabled and that there were significant jobs available in the national economy based upon Rule 201.21 contained in Table 2 of Appendix 2.
[¶16] In reaching his findings, the ALJ acknowledged that Wiley has nonexertional limitations. He specifically referred to subjective symptoms "such as pain and fatigue." AR 16. His finding was that the evidence, when the record is considered as a whole, does not substantiate the claimant's subjective complaints and limitations. AR 16. He made a credibility determination which he is permitted to do. AR 18.
[¶17] The ALJ found that Wiley was able to engage in significant daily activities. AR 34-45. Based upon his finding and the application of the "grid," Wiley was found to be "not disabled." Such finding 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).
[¶18] B. Testimony of Treating Physician
[¶19] Wiley's second objection is that the ALJ committed an error of law when he rejected the uncontroverted medical opinion of Dr. Goff, Wiley's treating physician. Wiley urges that the ALJ should have agreed with what she refers to as Dr. Goff's final opinions (dictation of Dr. Goff dated November 18, 1994, and January 6, 1995). According to Wiley, Dr. Goff in his dictation of November 18, 1994, limited Wiley to part-time sedentary work. In January 6, 1995, Wiley interprets Dr. Goff as limiting her to full-time sedentary work with significant limitations. In arguing that the ALJ committed error, Wiley points out that the ALJ did not even mention the opinions of Dr. Goff dated November 18, 1994, or January 6, 1995.
[¶20] The ALJ does not have to discount or respond to all the medical evidence contained in the record. In Miller v. Shalala, 8 F3d 611 (8th Cir. 1993), the court 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. at 613 (ALJ did not err in failing to address physician's statements that claimant could not carry five pounds, lift five pounds without a splint, or that claimant could not perform sedentary work). In reviewing the record and the opinion of the ALJ, this Court finds that the ALJ fully and fairly developed the record as to Dr. Goff. There is substantial evidence in the record to support the ALJ's interpretation of Dr. Goff's assessment of the claimant. Dr. Goff had rarely seen Wiley in 1995 and 1996. AR 58. Wiley does not deny that at one time Dr. Goff found that claimant could return to sedentary full-time work. Plaintiff's Opening Brief at 10; AR 167, 169. Wiley also does not deny that Dr. Goff adopted the findings of the functional capacities assessment.(fn4) Plaintiff's Opening Brief at 10-11; AR 167. This Court does not disagree with the ALJ that Dr. Goff's opinion of January 1995 could be interpreted as permitting Wiley to perform full time sedentary work. Accordingly, the Court finds that the record was fully and fairly developed as to the medical opinions of Dr. Goff.
[¶21] C. Wiley's Credibility
[¶22] Wiley's final argument is that the ALJ's credibility determination of claimant is not supported by substantial evidence. After reviewing the record, this Court finds that the ALJ's credibility determination is supported by substantial evidence. In assessing Wiley's credibility, the ALJ considered the medical evidence, Wiley's functional capacities assessment, the vocational assessments of Wiley, and claimant's daily activities. The record reveals that Wiley held several short term jobs after the accident. The record also reveals that Dr. Goff consistently felt that Wiley could perform sedentary work. According to Wiley's testimony, she was not taking pain medication at the time of the hearing. Wiley's functional capacities assessment also concluded that she was capable of performing sedentary work. Also, after January of 1995, Wiley rarely saw her treating physician Dr. Goff. Therefore, this Court finds that there is substantial evidence in the record to support the ALJ's assessment of Wiley's credibility.
[¶23] Based upon the foregoing discussion, it is hereby
[¶24] ORDERED that judgment shall be issued in favor of defendant and against plaintiff. Plaintiff's complaint shall be dismissed.
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. The steps are summarized as follows:
(1) First, a determination is made whether claimant is currently engaged in substantial gainful activity; if so, she must be found not disabled.
(2) If claimant is not engaged in substantial gainful activity, the next question is whether she 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. (1997)].
(4) If the impairment is not listed in Appendix 1, the next inquiry is whether claimant can perform relevant past work. If she can, a finding of no disability is required.
(5) Finally, if claimant cannot perform relevant past work, the question then becomes whether she can nevertheless do other jobs that exist in the national economy, despite her having a severe impairment that prevents return to her previous work.
McCoy v. Schweiker, 683 F2d 1138, 1141-42 (8th Cir. 1982). See also 20 CFR § 404.1520; 1 Harvey L. McCormick, Social Security Claims and Procedures § 410, at 346 (4th ed. 1991).
3. See footnote 2.
4. In January of 1994, Wiley participated in a functional capacities assessment. Exhibit 30; AR 214-220. This functional capacities assessment concluded that Wiley could perform sedentary work. AR 218.