United States District Court, District of South Dakota
Opinion Filed Apr 16, 1998
Formatting courtesy of The State Bar of South Dakota
and South Dakota Continuing Legal Education, Inc.
222 East Capitol Ave.
Pierre, SD 57501
JAMES W. BAIRD,
KENNETH S. APFEL,
Commissioner of Social Security,
[1998 DSD 11]
United States District Court
District of South Dakota - Western Division
MEMORANDUM OPINION AND ORDER
Opinion Filed April 16, 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 involving claimant James W. Baird ("Baird"). On March 12, 1993, Baird filed for disability benefits and was denied. On May 13, 1994, Baird reapplied for benefits with a protective filing date of April 14, 1994. He used November 1, 1991, as the onset date of his disability.
[¶2] A hearing in front of an Administrative Law Judge (ALJ) was held on June 12, 1996. Present at the hearing were Baird; his counsel, Catherine Enyeart; Dr. Douglas Wessel, a medical expert; and Dennis Parker, a vocational expert. (A.R. 15). On October 17, 1996, the ALJ issued his decision denying Baird's claim for disability insurance benefits. The ALJ determined that Baird was not disabled according to social security regulations. (A.R. 23; Finding 13). On August 18, 1997, the Appeals Council declined review of the ALJ's determination. (A.R. 6-8). On November 17, 1997, Baird 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).
[¶4] A. Medical Evidence
[¶5] Aside from osteoarthritis of the spine, Baird's impairments are all of a mental variety. The records of his treatments and conditions are quite lengthy and will be briefly summarized here. Baird was first diagnosed with major depression on September 26, 1990, with repeated subsequent diagnosis in 1991, 1992, 1994, 1995, and 1996. Plaintiff's brief at 4. He has also been diagnosed with dysthymic disorder, bipolar disorder,(fn1) and cyclothymia. Id. Baird has also been diagnosed with a personality disorder with some of the following characteristics: avoidant, schizoid, antisocial, passive-aggressive, narcissistic, paranoia, obsessive-compulsive. Id. Baird has spent a great deal of time under treatment, both in-patient and out-patient. Baird has spent considerable time at VA facilities for his mental conditions. From May of 1994 to June 12, 1996, Baird primarily resided in either VA hospitals or domiciliary facilities in South Dakota and Oregon. (A.R. 45-46). Baird was 38 years old at the time of the hearing. He has a GED and a year and a half of college education.
[¶6] B. ALJ Decision
[¶7] In evaluating Baird'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).(fn2) The ALJ first determined that Baird had engaged in substantial gainful activity since the alleged onset date of November 1, 1991. (A.R. 16). Baird worked as a laundry aide at Yellowstone National Park during the summers of 1992 and 1993 which constituted substantial gainful activity according to the ALJ. The ALJ thus determined that Baird last engaged in substantial gainful activity on August 30, 1993. (A.R. 16; A.R. 22 (Finding 2)). Although Baird was also employed at various times since the alleged onset date in a VA Compensated Work Therapy program, the ALJ noted that this was therapeutic in nature and thus not substantial gainful activity according to the regulations.
[¶8] In step two of the sequential evaluation, the ALJ determined that Baird's mental impairments combined with his physical problems constituted a severe impairment. (A.R. 17; A.R. 22 (Finding 3)). The ALJ concluded in step three of the sequential evaluation that although Baird's 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. This decision was based upon the minimal functional limitations which Baird's impairments caused.
[¶9] In step four of the sequential evaluation, the ALJ determined that based on the medical evidence and testimony, Baird was capable of performing his past relevant work as a laundry worker. (A.R. 22 (Finding 6)). The ALJ found support for this determination from the opinion of Dr. Wessel, the medical consultant, and the vocational expert. Alternatively, the ALJ underwent a step 5 analysis and determined that since Baird's impairments may prevent him from doing a full range of light work, there were a significant number of jobs in the national economy which he could perform such as night watchman/security guard and assembler. (A.R. 21; A.R. 23 (Finding 12)).
STANDARD OF REVIEW
[¶10] 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))).
[¶11] 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).
[¶12] In support of his motion for summary judgment, Baird contends the ALJ's decision was in error for the following reasons: (1) Dr. Wessel's opinion upon which the ALJ relied to formulate his decision was not supported by substantial evidence; (2) the vocational expert's testimony did not support the ALJ's decision; and (3) the ALJ's credibility finding did not comply with the regulations and Eighth Circuit law. Plaintiff's Brief at 14.
[¶13] A. Dr. Wessel's Opinion
[¶14] Baird is critical of the ALJ's reliance on the opinion of Dr. Wessel in reaching his final decision. Baird contends that the ALJ improperly relied on Dr. Wessel's opinion for the following reasons: (1) Dr. Wessel was not the treating physician and in fact never examined Baird; (2) Dr. Wessel did not consider Baird's work background in reaching his conclusion; (3) Dr. Wessel underestimated the severity of Baird's behavioral abilities; (4) Dr. Wessel's opinion as to the credibility of Baird was an usurpation of the ALJ's responsibility; (5) the Psychiatric Review Technique Form ("PRTF") completed by Dr. Wessel was not reliable since it did not reflect Baird's abilities outside an institutional setting. Plaintiff's Brief at 14-17. The Court finds these arguments to be without merit.
[¶15] Baird's primary complaint is what he contends was an over-reliance by the ALJ on the opinion of Dr. Wessel instead of the opinions of his treating physicians. A complete review of the record reveals that the ALJ did not rely exclusively on the testimony of Dr. Wessel and that the ALJ's decision is supported by substantial evidence. In reaching his decision, the ALJ carefully considered Dr. Wessel's opinion along with other medical evidence and Baird's testimony.
[¶16] The ALJ reviewed the evidence from Dr. Edwin Pearson who examined Baird in 1995 in connection with his disability application. Dr. Pearson, who examined Baird and subjected him to various tests, concluded that he was not significantly impaired and was overstating his psychological distress. (A.R. 689). Additionally, Dr. Pearson indicated that Baird's problems with past employment had been primarily due to boredom. (A.R. 687). In the end, Dr. Pearson's opinion did not support a finding of an inability to perform past relevant work. The ALJ noted the similarities between the opinions of Dr. Pearson and Dr. Wessel. (A.R. 20-21). Both of the doctors indicated that Baird was not significantly limited by his mental impairments. Id.
[¶17] The ALJ also considered the testimony and evidence concerning Baird's perception of his situation. The ALJ noted that Baird has a high I.Q. (122) which may account for his boredom with the menial labor in which he was engaged in the past. (A.R. 21). Baird's actions validate this conclusion. Baird walked off the job at the VA facility in Oregon because he was bored. (A.R 749). In December 1995, Baird also indicated to Dr. Pearson that he could return to his past work but that he really wished to be placed on social security so that he could attend college. (A.R. 690).
[¶18] Baird's argument that the ALJ was in error by relying on the opinion of a non-examining physician over the opinions of an examining physician is unfounded. Baird argues that the opinion of Dr. Guido Spangher that Baird was not employable should carry the day. Plaintiff's Brief at 16. However, such conclusory opinions by a physician as to the issue of disability are not binding. 20 CFR §§ 404.1527(e)(1), 416.927(e)(1). The ALJ is to examine the entire record in making a determination concerning disability. In this case, the entire record, from the evidence of Dr. Pearson and Dr. Wessel to Baird's own actions and testimony supported the ALJ's decision.
[¶19] B. The Vocational Expert
[¶20] The ALJ, with the assistance of a vocational expert, determined that Baird could perform his past relevant work as a laundry aide. The ALJ also performed a step 5 analysis and concluded that Baird had the ability to perform light work with some limitations. Baird first contends that since the DOT lists a laundry aide as medium-level work, and the ALJ found that he could do only light work, the ALJ erred in finding that he could do his past work. Plaintiff's Brief at 18.
[¶21] The ALJ's findings on Baird's residual functional capacity was quite comprehensive. He first found that Baird could perform past work as a laundry aide and then went on to find that he could also perform additional work in the light range. It is important to note that the limitations placed on Baird were nonexertional stemming from his mental impairments. The laundry position is classified as medium-level work due to the exertional requirements. The vocational expert testified that based upon the what he had heard from the testimony at the hearing and his review of the vocational records that Baird could perform his past work as a laundry aide. (A.R. 114). He further testified that based upon Baird's testimony and based upon his intelligence he had "unlimited potential for entering into some semiskilled job market." Id. The Court finds that the ALJ's finding is not inconsistent. The ALJ considered both past work and Baird's potential for other forms of employment. Due to the nonexertional requirements placed upon Baird, the demands of the laundry position, and the reasons he left that position, the vocational expert's opinion was appropriate.
[¶22] Baird next contends that the ALJ's findings concerning Baird's residual functional capacity were incorrect since the vocational expert did not match Baird's impairments with the demands of the jobs listed and also did not include reviewable data as to the number and availability of those jobs. Plaintiff's Brief at 19.
[¶23] The vocational expert was first asked by the ALJ if Baird could perform past work based upon what the vocational expert had heard during the hearing and a review of the records. (A.R. 113). The vocational expert indicated that Baird would be able to perform past work as a laundry aide and possibly as a foreman of a tree trimming operation. (A.R. 114). The ALJ then limited the vocational expert to only sedentary jobs and asked if there were significant jobs in the national economy. (A.R. 115). The vocational expert indicated that Baird could be a night watchman/security guard, a job which exists in significant numbers around the nation. (A.R. 115-116). The vocational expert went on to indicate that Baird could also perform work on an assembly line, a job which also exists in significant numbers in the national economy. (A.R. 116).
[¶24] The Court finds no fault in this exchange. The ALJ thoroughly examined the vocational expert as to Baird's ability to perform past work as well as additional jobs in the sedentary range. The vocational expert indicated that past work could be performed and that other jobs existed given the restrictions in the hypothetical posed to him. The vocational expert heard the testimony of Baird and Dr. Wessel and was asked to consider both as well as the records he had reviewed in reaching his conclusions. His conclusions are supported by substantial evidence and were not in error as Baird asserts.
[¶25] C. Credibility Assessment
[¶26] Baird contends that the ALJ failed to properly consider all the factors listed in Polaski v. Heckler, 751 F2d 943 (8th Cir. 1984) in evaluating his subjective complaints. He further argues that the ALJ neglected to assess his credibility based upon the psychological symptomatology as distinct from his physical impairments. Plaintiff's Brief at 20-21. The Court disagrees.
[¶27] Review of the entire record indicates that the ALJ adequately considered all of Baird's subjective complaints and found them to be lacking. The ALJ considered the Polaski factors in his analysis but concluded that Baird's actions and statements undermined his subjective complaints. Baird has a high I.Q and was generally "under-employed" given his intellectual abilities. He repeatedly indicated that his primary interest in receiving disability was to pay for college. At one point he claimed he left his job at the Oregon VA facility due to back pain but the record reflects that he left because he was bored. (A.R. 18). This evidence does not support Baird's subjective complaints. As such, the ALJ was correct in finding that Baird's subjective complaints were not fully credible.
[¶28] This case involved assessment of Baird's psychological impairments. While there is little question that Baird does suffer from various impairments, they do not constitute a disability according to the regulations. The ALJ thoroughly examined the medical record and the testimony of Baird, Dr. Wessel, and the vocational expert. The ALJ's reliance on the opinion of Dr. Wessel was not in error nor was the use of a vocational expert. His opinion that Baird possessed the residual functional capacity to perform past work or, in the alternative, work available in significant numbers in the national economy is supported by substantial evidence in the record.
[¶29] Accordingly, it is hereby
[¶30] ORDERED that Baird's motion for summary judgment (Docket #10) is denied.
[¶31] IT IS FURTHER ORDERED that the Commissioner's motion for summary judgment (Docket #12) is granted. Judgment shall issue in favor of defendant.
1. Baird's initial diagnosis of bipolar disorder, made on September 22, 1990, was changed by the diagnosing physician on September 26, 1990, so that the bipolar consideration was removed. (A.R. 740 ). He was again diagnosed and hospitalized with bipolar disorder in 1996. (A.R. 17).
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.