United States District Court, District of South Dakota
Opinion Filed Apr 28, 1998
Formatting courtesy of The State Bar of South Dakota
and South Dakota Continuing Legal Education, Inc.
222 East Capitol Ave.
Pierre, SD 57501
KENNETH S. APFEL,
Commissioner of Social Security,
[1998 DSD 12]
United States District Court
District of South Dakota - Western Division
MEMORANDUM OPINION AND ORDER
Opinion Filed April 28, 1998
RICHARD H. BATTEY, CHIEF JUDGE
I. PROCEDURAL HISTORY
[¶1] On April 12, 1995, plaintiff Patrick J. Harwood ("Harwood") filed an application for disability benefits under Title II of the Social Security Act ("the Act"), 42 USC §§ 401-33. Harwood alleges an onset date of September 26, 1994. His applications were denied initially and upon reconsideration. Harwood 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 Harwood benefits. Harwood filed a request for review before the Appeals Council which was denied. Harwood then filed a complaint with this Court seeking relief.
[¶2] This Court has jurisdiction to proceed pursuant to 42 USC § 405(g).
[¶3] Harwood was born July 17, 1956. AR 89. He is currently forty-one years old. He is married and has two biological children and two step-children. AR 31. Harwood completed the tenth grade. AR 31. Harwood went to a vocational technical school for six months where he learned how to make jewelry. AR 31.
[¶4] Around 1983, Harwood went to work for Ridco ("Riddles"). AR 34; AR 125. He started out polishing and steaming the jewelry. AR 35. When Harwood left Ridco in September of 1994, he was working as a supervisor of the Wriggling Department. Harwood would supervise up to six people. AR 36. Harwood was responsible for obtaining the work at the front desk and dispersing out the additional work. AR 36. The Wriggling Department was responsible for creating the leaves on Black Hills Gold jewelry. AR 35-36
[¶5] Harwood complains of pain in the joints of his thumb, in both wrists, in both elbows, both shoulders, and in his upper back. AR 38-39. Harwood testified that his pain has gotten worse and that he is in constant pain. AR 39. See also AR 119. Harwood attempted to take medication for his pain, but the medication which was described either did not reduce his pain or had side effects. AR 40-41. At the time of the hearing, Harwood was taking at least one aspirin a day for his pain. AR 41. According to Harwood, any movement of his shoulders or upper body results in increased pain. AR 42.
[¶6] Harwood is able to take care of his personal needs, for example, he dresses and showers himself. AR 42. As for household chores, Harwood stated that he vacuums once a week and that he will put the dishes into the dishwasher. AR 42. When doing these chores, he will take breaks before completing the entire chore. AR 43. Harwood also waters the garden, but he does not mow the lawn. AR 44. Harwood testified that the chores cause him pain, but that he does them because they have to be done. AR 43. During Harwood's typical day, he is responsible for taking care of two younger children while his wife is at work. AR 46. Harwood also helps out with the cooking and the laundry. AR 46. In his disability report, Harwood also stated that he does one to two hours of housework four days a week. AR 113. Harwood's wife testified that she does more household chores than she did before her husband was injured. AR 63.
[¶7] Harwood enjoys outdoor activities such as hiking, but stated that he no longer participates very often in outdoor activities. AR 43. Harwood enjoys working on his art. He has been taking a cartooning class for the last four years. AR 43. At the administrative hearing, Harwood stated that he works on his cartooning "a couple of minutes here and a couple of minutes there." AR 16. Harwood does not sit while working at his cartooning table. AR 44. He has it set up so that he can stand. According to Harwood, it takes him months to get anything done. AR 44. In his disability report dated April 12, 1995, Harwood stated that he draws for one hour three times a week. AR 113.
[¶8] Harwood does not believe he is capable of performing a full-time job because he is in constant pain and activity increases his pain. AR 50. Harwood testified that his pain limits his sitting, standing, and walking. AR 52. To help with the pain, Harwood soaks in a hot tub three to four times a week and sometimes uses a heating pad. AR 59. Harwood also stated that he lays down in his recliner or on the couch three or four times a day to relieve his pain. AR 60. Harwood's wife also testified that he lies down during the day. AR 65.
[¶9] In November of 1994, a functional capacities assessment ("FCA") was also performed on Harwood. This FCA concluded that Harwood was capable of light work. AR 178. On May 11, 1995, another FCA was performed on claimant. AR 141. The results showed that Harwood could occasionally lift twenty pounds and frequently lift or carry ten pounds. The FCA concluded that Harwood could stand or walk for six hours out of an eight hour day. The FCA limited Harwood's repetitive use of reaching or handling.
[¶10] As for the medical evidence contained in the record, on September 23, 1994, Harwood was examined by Dr. Dwight K. Caughfield. Dr. Caughfield concluded that Harwood's neck and shoulders showed a full range of motion and that his wrists showed a good range of motion. AR 150. The doctor also found that the shoulders showed a painless range of motion. AR 150. The doctor did find marked tenderness in the right elbow. AR 150. However, Harwood was able to make a fist without any difficulty. AR 150. Dr. Caughfield recommended bilateral thumb splints to see if they would alleviate his symptoms. AR 151. The doctor said that Harwood could keep working at a job which he could do with the splints. AR 151. Dr. Caughfield also prescribed an elbow band and some prescription medication. AR 151. Dr. Caughfield's notes from September conclude that Harwood is probably suffering from an early onset of potential osteoarthritis of a joint. AR 190. The doctor felt that Harwood would probably need to "do a job transition for his repetitive use problem." AR 190. On October 26, 1994, Dr. Caughfield noted that Harwood had not made any gains with his occupational therapy. AR 192. Dr. Caughfield ordered that a functional capacities assessment of Harwood be performed to discover his job limitations. AR 192. Dr. Caughfield accepted the conclusion of the FCA which placed him in a light category with additional limitations for repetitive upper extremity activities. AR 193, 198.
[¶11] In September of 1994, Dr. Cynthia Weaver did not feel that Harwood was totally disabled and unable to perform any type of work at all. AR 151. In October of 1994, Harwood was discharged from physical therapy because he did not reschedule. AR 162. Harwood had a total of three physical therapy sessions. AR 162. This last session was September 20, 1994.
[¶12] On November 10, 1994, Harwood was examined by Dr. Dale R. Anderson. The examination revealed that Harwood "seem[ed] to be comfortable and without distress or pain." AR 183. Dr. Anderson performed an upper extremity examination and concluded everything was normal. AR 183. Dr. Anderson concluded that the symptoms which Harwood described appeared to be overuse syndrome. AR 184. Dr. Anderson concluded that Harwood's symptoms could be improved with exercise. Dr. Anderson believed that Harwood could work if he had a job which did not require him to perform the same repetitive motion. AR 184. On February 9, 1995, Harwood again saw Dr. Anderson. AR 185. According to Harwood, the swimming exercises which Dr. Anderson prescribed were not helping him. AR 185. Dr. Anderson stated that he did not think that there is any treatment which would eliminate all of Harwood's pain. AR 185. The doctor believed that Harwood should focus on retraining for a specific vocation. AR 185.
[¶13] In a vocational assessment of Harwood which was performed in July of 1995, it was concluded that Harwood did not have any transferable skills which would be sufficient for alternate employment. AR 206. The assessment concluded that Harwood was presently unemployable and that retraining was not likely to result in Harwood's returning to work. AR 207.
[¶14] Harwood testified that he does not go in for regular checkups anymore because his doctors have told him that there is nothing that they can do for him. AR 48.
III. DECISION OF THE ALJ
[¶15] In assessing the sequential process(fn1) which is required when determining if an individual is disabled pursuant to the Social Security Act, the ALJ first concluded that Harwood has not performed any substantial gainful activity since the date of the alleged onset of his disability. Second, the ALJ found that Harwood suffered from a severe medical impairment, overuse syndrome in both shoulders and both arms. However, in the opinion of the ALJ, the severe medical impairment which Harwood 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).
[¶16] The ALJ's last step in determining whether Harwood is disabled was to consider whether he could perform past work or other work within the national economy. In reaching a conclusion, the ALJ concluded that Harwood's testimony as to his subjective complaints and his limitations was not fully credible. In assessing Harwood's credibility, the ALJ considered Harwood's testimony, including his complaints of pain, his daily activities, and his statements as to his limitations on his functional capacity. The ALJ also thoroughly considered the medical evidence contained in the record. The ALJ considered the evidence contained in the record by Dr. Dwight Caughfield, M.D., Dr. Dale Anderson, M.D., and Dr. Cynthia Weaver, M.D. The ALJ looked to Harwood's functional capacities assessment and the vocational assessment. The ALJ found that Harwood could not perform his past relevant work as a supervisor in a jewelry manufacturing firm, a cut-off saw operator, and construction worker, but that there are a significant number of jobs within the national economy which Harwood is able to perform.
IV. STANDARD OF REVIEW
[¶17] 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), cert. denied, 573 US 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 US 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).
[¶18] 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.
[¶19] For Harwood to be eligible for disability insurance benefits, he must be under a disability at the time he was insured for disability insurance benefits. See 42 USC § 423(a)(1)(A)-(D). A disability is defined as an
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.(fn2) See Evaluation of Disability Rule, 20 CFR § 404.1520 (1997). In order for Harwood to be eligible for benefits, he is required to show that he was unable to perform any substantial gainful activity for at least twelve consecutive months prior to his date-last-insured. Specifically, Harwood has stated three objections to the ALJ's conclusion: (1) that the ALJ failed to develop the record by failing to direct interrogatories to the medical providers regarding his medical restrictions; (2) the ALJ erred in finding that Harwood is able to perform significant jobs within the national economy; and (3) the ALJ's credibility determination is not supported by substantial evidence.
[¶20] The only argument which Harwood raised before the Appeals Council was that the ALJ's credibility determination was not supported by substantial evidence. AR 224-233. Defendant argues that Harwood has waived the arguments which he failed to raise in his brief to the Appeals Council requesting review. This Court agrees. In Weikert v. Sullivan, 977 F2d 1249 (8th Cir. 1992), the Eighth Circuit refused to address claimant's arguments because he failed to properly address them below. Id. at 1254 (claimant failed to raise argument at administrative level or district court level). The Eighth Circuit stated, "[Claimant's] failure to raise the argument at the agency level would ordinarily prevent him from raising it in judicial proceedings." Id. (citing Hix v. Director of Office Workers' Compensation Programs, 824 F2d 526, 527 (6th Cir. 1987) (holding that "claimant may not obtain review of the ALJ's decision on any issue not properly raised before [the Benefits Review Board]"). See also Johnson v. Chater, 108 F3d 942, 946 (8th Cir. 1997) (court found that claimant improperly raised new factual issue; court held issue should have been presented "at the agency level, first to the ALJ and then to the Appeals Council"); James v. Chater, 96 F3d 1341, 1344 (10th Cir. 1996) (holding that "issues not brought to the attention of the Appeals Council on administrative review may, given sufficient notice to the claimant, be deemed waived on subsequent judicial review").
[¶21] Harwood did not fully exhaust his administrative remedies as to the issue of whether there are significant jobs within the national economy which he could perform and whether the ALJ erred in failing to address interrogatories to the medical providers. Harwood had sufficient notice of these arguments. By failing to argue them before the Appeals Council, these objections are not properly before this Court and will not be addressed. Therefore, the only issue before this Court is whether there is substantial evidence in the record to support the ALJ's credibility determination of Harwood.
[¶22] Harwood argues 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 Harwood's credibility, the ALJ considered the testimony of Harwood, including Harwood's complaints of pain, the medical evidence contained in the record, Harwood's functional capacities assessment, the vocational assessment, and claimant's daily activities. According to Harwood, at the time of the hearing, he was taking only aspirin to deal with his pain. The record reveals that Harwood is capable of performing some personal chores and at the time of the hearing was responsible for taking care of two young child while he was home during the day. AR 42-46. The record reveals that the FCA done in November of 1994 concluded that Harwood could perform a light range of work. AR 178. In fact, Dr. Caughfield accepted the conclusion of the FCA which placed Harwood in a light category with additional limitations for repetitive upper extremity activities. AR 193, 198. In September of 1994, Dr. Weaver did not believe that Harwood was totally disabled and unable to perform any type of work, and Dr. Anderson believed Harwood could work in a job which did not require a repetitive motion and encouraged Harwood to focus on retraining for a specific vocation. AR 151, 185. The administrative record reveals that Harwood was last seen by a physician, Dr. Caughfield, in November of 1995. AR 209. After considering the record in this case, this Court finds that there is substantial evidence in the record to support the ALJ's assessment of Harwood'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. The steps are summarized as follows:
(1) First, a determination is made whether claimant is currently engaged in substantial gainful activity; if so, he must be found not disabled.
(2) If claimant is not engaged in substantial gainful activity, the next question is whether he 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 he can, a finding of no disability is required.
(5) Finally, if claimant cannot perform relevant past work, the question then becomes whether he can nevertheless do other jobs that exist in the national economy, despite his having a severe impairment that prevents return to his 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).
2. See footnote 1.