United States District Court, District of South Dakota
Opinion Filed June 26, 1998
Formatting courtesy of The State Bar of South Dakota
and South Dakota Continuing Legal Education, Inc.
222 East Capitol Ave.
Pierre, SD 57501
ERROL R. GRAY,
KENNETH S. APFEL,
Commissioner of Social Security,
[1998 DSD 14]
United States District Court
District of South Dakota - Western Division
Filed June 26, 1998.
RICHARD H. BATTEY, CHIEF JUDGE
I. PROCEDURAL HISTORY
[¶1] On December 18, 1995, plaintiff Errol R. Gray (Gray) 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. His application was denied through the reconsideration stage and he requested a hearing before an Administrative Law Judge (ALJ). On April 6, 1997, a hearing was held before an ALJ in Rapid City, South Dakota. The ALJ denied Gray's claim and the Appeals Council declined review. Gray filed a complaint in this Court on January 23, 1998. Gray alleges an onset date of March 28, 1995.
[¶2] Gray was born on July 16, 1945. AR 30 He is fifty-two years old. Gray has a high school diploma and completed a year-long course in auto mechanics. AR 30.
[¶3] Gray worked as a delivery driver for a furniture store from 1978 to 1985. AR 90. From 1985 to 1995 he worked as a metal finisher and painter in a metal shop. AR 90, 30. His back was injured at work in February of 1995 and he stopped working on March 28, 1995. AR 30. Shortly thereafter he underwent back surgery -- microdiskectomy -- performed by Dr. Larry Teuber. AR 126-27. He has not worked since that time. Gray stated that he still suffers from constant lower back pain and is limited in activity due to the same. AR 30-31.
[¶4] According to Matthews, his lower back problem limits him to 20 - 25 minutes of sitting and the same for standing. AR 37-38. He is unable to attend movies or go out for dinner due to the extended sitting required. AR 36. His sleep is troubled due to his back pain as well. He takes no prescription or over-the-counter medication for the pain. AR 32-33. He engages in no physical therapy. AR 46 To relieve his pain he lies down for several hours at a time. AR 36. Gray also testified that he could lift thirty pounds about twice a day and carry thirty pounds. AR 39.
[¶5] Gray testified that on a typical day he wakes at 7 a.m., gets the paper and has breakfast. He does the dishes and then watches TV. AR. 37. He eats dinner then lays down for a while. Id. He cares for himself and does some of the housework but is no longer able to care for the yard. AR 34. Gray can take out the garbage which requires that he walk one block. AR 38. Gray testified that he can drive his truck for up to a half hour at a time before he must stop and walk around. AR 42.
[¶6] Betty Bland (Bland), testified that she has lived with Gray for twenty-three years. AR 48. She indicated that since his back injury all of their social activities have ceased. Id. She also indicated that he has become more irritable and depressed since the injury and doesn't do much but watch TV. AR 49.
[¶7] On May 16, 1995, Gray indicated to Dr. Teuber that the surgery had relieved his pre-surgery back and leg pain. AR 137. He did, however, complain of some hip and knee pain. Id. In July of 1995, Gray again saw Dr. Teuber and complained of increased pain in his back and leg. AR 136. Gray was no longer undergoing any type of physical therapy. Dr. Teuber diagnosed Gray as having post-laminectomy syndrome and strongly recommended a resumption of the therapy. No medication was prescribed. Id. On October 3, 1995, Dr. Teuber noted that Gray continued to complain of pain but his motor and reflex deficit had been resolved. AR 134. Gray was not participating in any form of therapy. Id. On November 6, 1995, Dr. Teuber once again noted the symptoms of post-laminectomy syndrome and also indicated there was nothing more to be done. AR. 133.
[¶8] Dr. Dwight Caughfield saw Gray on June 8, June 22, and July 6, 1995. AR 116-119. Dr. Caughfield noted that Gray had significant pain and recommended a physical therapy regime involving water exercises. Gray did not participate in the water exercise therapy due to his fear of water. Dr. Caughfield gave Gray a 10 percent whole person impairment rating. AR 116.
[¶9] On June 24, 1996, Margot Burton (Burton), a vocational counselor at Job Service of South Dakota, was deposed concerning her interaction with Gray. AR 151-163. Burton first met with Gray on October 5, 1995. AR 153. Burton administered a General Aptitude Test Battery (GATB) to Gray. The results of the test indicated to Burton that Gray did not meet the norms for most jobs. AR 154. Burton concluded that based upon the test scores and her personal experience it would be difficult for Gray to find employment in this area. AR 155. She also concluded that it would be difficult for Gray to be retrained. Id.
[¶10] On March 28, 1996, Dr. Lynn Meiners performed a vocational assessment of Gray at the request of Gray's attorney. AR 144. Dr. Meiners performed various tests, reviewed Gray's medical history, and personally interviewed him. Dr. Meiners indicated that in her opinion Gray's residual functional capacity "does not allow return to any full time competitive employment available in the local labor market." AR 147. In reaching this conclusion Dr. Meiners noted that the results of the GATB administered by Burton "do not predict successful performance in the majority of jobs." AR 148.
III. DECISION OF THE ALJ
[¶11] 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 Gray had not performed any substantial gainful activity since the alleged onset date. Second, the ALJ found that the degenerative disk disease from which Gray suffers constituted a severe impairment. The ALJ also concluded, at step three, that the severe medical impairment which Gray suffers from did not fit within one of the listed severe impairments in Appendix 1 to Subpart P. AR 14.
[¶12] At the fourth step in determining whether Gray was disabled the ALJ considered whether he could perform past work or other work within the national economy. In reaching a conclusion, the ALJ concluded that Gray's testimony as to his subjective complaints and his limitations was not fully credible. AR 15. In assessing credibility, the ALJ considered the medical evidence contained in the record, Gray's own testimony concerning the degree and duration of the pain, Gray's daily activities, lack of medication (including over-the-counter pain relievers) for the alleged pain, and failure to follow through with rehabilitation. AR 15-16. The ALJ discounted the testimony of Gray's vocational experts as not supported by the evidence and potentially biased. AR 16. For similar reasons the ALJ gave little weight to the testimony of Betty Bland. AR 17.
[¶13] In the final step of the analysis the ALJ concluded that given Gray's age, education, and past work experience there were significant work opportunities for him. The ALJ agreed with the state agency medical consultant that Gray maintained the residual functional capacity for a full range of light work. The ALJ noted that the Medical-Vocational Guidelines (Grid) indicated that there are "approximately 1600 separate sedentary and light jobs existing" in the national economy which Gray could perform. AR 17. He went on to conclude that based upon the Grid Gray was not disabled.
IV. STANDARD OF REVIEW
[¶14] 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 US 1076, 115 SCt 722, 130 LEd2d 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 SCt 1420, 1427, 28 LEd2d 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).
[¶15] 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 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))). 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 F Supp. 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.
[¶16] In support of his motion for summary judgment, Gray contends the ALJ's decision was in error for the following reasons: (1) the ALJ improperly discounted the opinions of two vocational experts; (2) exclusive reliance upon the Grid to determine Gray's ability to perform jobs in the national economy; (3) the credibility determination was not supported by substantial evidence. Plaintiff's Brief at 3-9.
[¶17] According to Gray, the ALJ completely disregarded the testimony of two of his vocational experts and in fact reached a conclusion which contradicts their opinions. Plaintiff's Brief at 3-5. Relying on Simons v. Sullivan, 915 F2d 1223 (8th Cir. 1990), Gray contends that the ALJ's decision should be reversed. The Court does not agree.
[¶18] "The claimant has a twelfth grade education plus training in automotive mechanics." AR 14. The ALJ considered Gray's nonexertional limitations as claimed and properly made credibility determinations based upon the vocational testimony presented and upon consideration discredited the testimony for valid reasons. The ALJ's determination was based upon the medical reasons from Gray's treating physicians as well as the vocational evidence in the record. He found that Gray retains the capacity to perform light work activity (citing examples). AR 16. The decision is supported by substantial evidence on the record as a whole.
[¶19] Gray urges the Court that Simons requires reversal and grant of the requested social security benefits. The Court does not agree. Simons differs on its facts. Simons was a claimant with a ninth-grade education. The vocational counselor testified that Simons was not intellectually qualified to perform light work although he was physically able to do so. There is no issue of the lack of intellectual ability to perform light work in this case.
[¶20] Gray offered the testimony of two vocational experts, Margot Burton and Dr. Lynn Meiners. Both Burton and Dr. Meiners indicated that Gray's nonexertional impairments limited his ability to find employment. Both based their opinions on the GATB and other tests. Burton's testimony indicated that she felt that Gray would be unable to find a job due to his low test scores. AR 155-57. Likewise, Dr. Meiners' report noted that Gray's GATB did "not predict successful performance in the majority of jobs." AR 148. Dr. Meiners also questioned Gray's ability to perform light work based upon his motor speed, accuracy, and concentration. Id.
[¶21] The ALJ concluded that these opinions were "simply not supported by the other evidence of record." AR at 16. The ALJ is not bound by the conclusory opinions of medical and vocational experts. 20 CFR §§ 404.1527 (e)(2) and 416.927(e)(2) (noting that the Commissioner has the final responsibility for determining whether an individual is disabled. Special significance will not be placed on opinions by treating physicians that an individual is disabled); Barrett v. Shalala, 38 F3d 1019, 1023 (8th Cir. 1994) (noting that conclusory statements as to disability made by a physician need not be given special deference).
[¶22] Accordingly, it is hereby
[¶23] ORDERED that the decision of the ALJ is affirmed. Judgment is entered accordingly.
1. 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).