DONALD B. KIZER, JR.,
Plaintiff,
v.
KENNETH S. APFEL,
Commissioner of Social Security Administration,
Defendant.
[1998 DSD 18]
United States District Court
District of South Dakota
Western Division
CIV 97-5103
MEMORANDUM OPINION
Opinion Filed July 21, 1998.
Richard H. Battey, Chief Judge
I. PROCEDURAL HISTORY
[¶1] On February 27, 1995, plaintiff Donald Kizer ("Kizer") filed an application for disability benefits under Title II of the Social Security Act ("the Act"), 42 USC §§ 401-33, and for Supplemental Security Income ("SSI") benefits under Title XVI, 42 USC § 1381-1383. Kizer was last insured on December 31, 1993. Kizer is requesting benefits for a closed period from June 1, 1991 through March of 1994 and then a second period commencing on November 1, 1995.
[¶2] His applications were denied initially and upon reconsideration. Kizer then requested a hearing before an Administrative Law Judge ("ALJ"). A hearing was held by ALJ Jon L. Lawritson on November 7, 1996, and on December 18, 1996, he issued on opinion denying Kizer disability benefits but concluding that Kizer is entitled to SSI benefits. Kizer filed a request for review before the Appeals Council which was denied. Kizer then filed a complaint with this Court seeking relief.
[¶3] This Court has jurisdiction to proceed pursuant to 42 USC § 405(g).
II. FACTS
[¶4] Kizer was born on November 23, 1948. He is currently forty-nine years old. AR 60. Kizer has a four-year degree in education majoring in industrial arts. AR 36. On March 29, 1995, Kizer filled out a disability report setting forth his disabling condition as follows:
Back pain, shoulder-rotator cuff tears, arthritis, pancreatitis, encephalitis, tension, anxiety, sleep problems, inability to cope with people and hold jobs [and] mental problems. . . . I can't see very well. Have friend filling out this form.
AR 98. Kizer's application also indicated that he had been hospitalized for mental illness. AR 100. At the administrative hearing, Kizer testified that he has pain in his back, elbows, and wrists. AR 38.
[¶5] Kizer's vocational report reflects that he worked as a teacher from 1971 to 1985. AR 114. While he was teaching, during his summers off from 1971 to 1977, Kizer worked as a carpenter. AR 114. Then in 1988, Kizer began working full-time as a carpenter; he did this until 1990. AR 114. In 1990, he began working as a part-time carpenter. AR 114. This part-time carpentry work ended sometime in 1991. AR 114. Kizer's next job was doing production work for a manufacturing business from March through May of 1993. AR 114. In April of 1994, Kizer started working as a carpenter again. AR 114. This job lasted through October of 1994. AR 114. Kizer was again employed from May through November of 1995. AR 38. Kizer testified that he would miss four to six days a month for work because "he was tired and I'd just have to catch up." AR 38.
[¶6] In Kizer's daily activities questionnaire dated May 2, 1995, Kizer noted that he often has difficulty sleeping. AR 120. Kizer stated that sometimes he may go two days without sleeping. AR 120. Kizer also discussed that even caring for himself can be painful. AR 120. He stated that it is painful to shave or comb his hair. AR 120. According to Kizer, he does not do his household chores because it is too painful. AR 121.
[¶7] The record indicates that beginning in March of 1982, Kizer sought counseling for his marital problems and his temper. AR 163. However, Kizer prematurely terminated his treatment without explanation. AR 164. In September of 1991, Kizer went to see Dr. Andersen about lower back pain. AR 180. The doctor's notes do not make mention of depression on the part of Kizer on this date. AR 180. Dr. Andersen's notes from September of 1992 do indicate that Kizer has a problem with depression. AR 179.
[¶8] In May of 1995, Kizer saw Dr. Steven Goff for an evaluation of his musculoskeletal system. AR 166. Dr. Goff assessed that Kizer has recurrent low back pain, chronic sacroiliac dysfunction, periarthritis of both shoulders, possible bilateral carpal tunnel syndrome, a history of depression, and a history of chemical dependency. AR 167-68. Dr. Donald Burnap on May 3, 1995, diagnosed Kizer with a severe dysthymia disorder and alcohol dependence which is in remission. AR 175. As to Kizer's physical disorders, Dr. Burnap concluded that Kizer has back problems. AR 175. Dr. Burnap concluded:
It is suggested that this man probably qualifies for disability benefits on account of the combination of both physical and mental problems. He can manage benefit payments, adequately, in his own interest.
TR 176.
[¶9] On October 1, 1996, Dr. J.D. Sabow diagnosed Kizer with narcolepsy(fn1) syndrome with hypnagogic hallucinations and sleep paralysis and carpal tunnel syndrome. AR 184.
[¶10] Kizer testified that his dysthymia which he was diagnosed with causes him to go into "bad periods." AR 41. Kizer stated that he has a difficult time getting up and dealing with people. AR 41. Kizer discussed that carpal tunnel syndrome causes his hands to become numb and that he drops things and has a difficult time picking up small objects. AR 40-41.
III. DECISION OF THE ALJ
[¶11] 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 Kizer has not been performing substantial gainful activity since November of 1995. Second, the ALJ found that Kizer suffered from severe impairments during the closed period and beginning on November 1, 1995. The ALJ stated that Kizer has severe impairments of degenerative disc disease and bilateral shoulder injuries. The ALJ concluded that these impairments caused work-related limitations on or before the date last insured, December 31, 1993. As of November 1, 1995, the ALJ also determined that Kizer had bilateral carpal tunnel syndrome, narcolepsy, and dysthymia. However, in the opinion of the ALJ, none of the impairments which Kizer suffers from fit within 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). In addition, the ALJ did not find Kizer's testimony as to his alleged onset date to be fully credible.
[¶12] The ALJ's last step in determining whether Kizer is disabled was to consider whether he could perform past work or other work within the national economy. The ALJ found that prior to December 31, 1993, Kizer could perform his past relevant work as a teacher. Next, the ALJ found that Kizer could not perform any past relevant work after November 1, 1995. In addition, the ALJ concluded that there are no significant jobs within the national economy which Kizer is able to perform after this date. Accordingly, the ALJ concluded that Kizer has been disabled since November 1, 1995.
[¶13] Based upon the ALJ's decision, Kizer is denied disability benefits. The ALJ concluded that Kizer was not disabled until November 1, 1995. Due to the ALJ's decision, Kizer was not eligible for disability insurance benefits since his insured status expired almost two years before his disability date. Kizer is entitled to SSI benefits given the ALJ's decision that he has been disabled since November 1, 1995.
IV. STANDARD OF REVIEW
[¶14] 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 SCt 722, 130 LEd 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).
[¶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 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 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.
V. DISCUSSION
[¶16] For Kizer 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). Kizer's date of last insured is December 31, 1993. Therefore, to receive disability benefits, Kizer must have been disabled prior to December 31, 1993. 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 Kizer 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, Kizer has stated seven objections to the ALJ's conclusion:
(I) Whether the ALJ's credibility finding met any legal standard or was supported by any evidence.
(II) Whether failure to consider lay witness evidence was reversible error.
(III) Whether the ALJ's failure to consider a diagnosed impairment was reversible error.
(IV) Whether the ALJ was required to develop the record in accordance with agency standard if the evidence failed to establish with sufficient certainty the date of onset of any of claimant's impairments.
(VI) Whether the ALJ's "RFC" formulation failed to incorporate all of claimant's limitations related to "basic work activities."
(VII) Whether the vocational evidence constitutes "substantial evidence" where the hypothetical question did not include all of claimant's limitations for the relevant period.
See Plaintiff's Opening Memorandum at 13.
[¶17] The first issue raised by Kizer is that this case must be remanded because the ALJ failed to follow the legal standard when making his credibility finding. This Court agrees. First, the ALJ failed to even set forth or consider the Polaski(fn4) factors.
When an ALJ reviews a claimant's subjective allegations of pain and determines whether the claimant and his testimony are credible, the ALJ must examine the factors listed in Polaski and apply those factors to the individual. Merely quoting Polaski is not good enough, especially when an ALJ rejects a claimant's subjective complaints of pain.
Hall v. Chater, 62 F3d 220, 223 (8th Cir. 1995) (emphasis added). In this case, the ALJ failed to even quote Polaski and set forth the Polaski factors. The ALJ thoroughly analyzed the medical evidence contained in the record, but analysis of the medical evidence is not enough to discredit Kizer's credibility. According to the Eighth Circuit,
When an individual's subjective complaints of pain are not fully supported by the medical evidence in the record, the ALJ may not, based solely on his personal observations, reject the complaints as incredible. See, e.g., Sullins v. Shalala, 25 F3d 601, 603 (8th Cir. 1994), cert. denied, 513 US 1076, 115 SCt 722, 130 LEd 2d 627 (1995). Rather, the ALJ must consider all the evidence relating to the claimant's subjective complaints, including his previous work record, and observations by third parties and treating and examining physicians relating to his daily activities; the duration, frequency and intensity of his pain; precipitating and aggravating factors; dosage, effectiveness and side effects of medication; and functional restrictions. See Polaski v. Heckler, 751 F2d 943, 948-50 (8th Cir. 1984) (Polaski I).
Jones v. Callahan, 122 F3d 1148, 1151 (8th Cir. 1997). In this case, the ALJ emphasized the medical evidence and failed to discuss the other evidence in the record which could have discredited or given credence to Kizer's subjective complaints of pain.
[¶18] Second, the ALJ failed to make any express findings as to why he found Kizer's testimony regarding his onset date not to be credible. In Hall, the Eighth Circuit recognized that
the ALJ was not obliged to believe the claimant, but without an express finding that [claimant's] testimony is incredible, with reasons given for the finding, the record does not support the ALJ's finding that [claimant] could perform a full range of sedentary work.
Hall, 62 F3d at 224 (emphasis added). The Eighth Circuit in Hall remanded the case. Id. In this case, the ALJ did not make any express findings that claimant's testimony was incredible. The only comment in the entire record which the ALJ made as to Kizer's credibility was that "[t]he claimant's testimony regarding the date of onset is not fully credible." AR 18. This clearly does not comply with the standard under Polaski and its progeny. Hall requires more than just a statement by the ALJ that a claimant is not credible. Accordingly, this case should be remanded to the ALJ for consideration of the Polaski factors and for express findings by the ALJ if the ALJ determines that Kizer's testimony regarding the onset date is not credible.
[¶19] Kizer also objects to the ALJ's failure to consider his diagnosed impairments of dysthymia and narcolepsy. Kizer argues that the ALJ refused to consider medical evidence as to these impairments unless it was from the relevant time period-- June 1, 1991, through March of 1994. Kizer is correct that the ALJ did not address the medical evidence outside of the relevant time frame when considering if Kizer was disabled between June 1, 1991, and March of 1994. In considering whether Kizer was able to perform past relevant work during the closed period, the ALJ stated, "There is no other medical evidence pertaining to the first alleged period of disability." AR 16.
[¶20] In Parsons v. Heckler, 739 F2d 1334, 1340 (8th Cir. 1984), the court stated:
The Secretary argues that the court may not consider any medical, psychological, or psychiatric evaluations made after the expiration of the claimant's insured status. We do not agree. While the Secretary is correct insofar as she contends that such evaluations must relate to the claimant's condition prior to the expiration of his insured status, the mere fact that the examination was made following the expiration of insured status does not automatically make the examination irrelevant.
Id. (emphasis added). In this case, the ALJ did not consider the reports from doctors outside the closed benefits period. This period ended in March of 1994, three months after the expiration of Kizer's insured status. The ALJ appears not to have considered the later diagnoses by doctors because they occurred outside this closed period. However, as long as it can be shown that these evaluations relate to Kizer's previous condition, then the Court may consider medical evidence outside this time frame. Id. Accordingly, this case is also remanded for the ALJ to consider if the more recent diagnoses of Kizer for dysthymia and narcolepsy affect the ALJ's conclusion that Kizer did not suffer from narcolepsy or dysthymia prior to December 31, 1993. If the ALJ concludes that Kizer suffered from these impairments during the closed time period, then the ALJ should determine if they would have prevented him from performing past relevant work and work within the national economy.
[¶21] Given this Court's conclusion to remand this case, this Court declines to address the other issues raised by Kizer.
[¶22] Accordingly, it is hereby
[¶23] ORDERED that this case is remanded to the ALJ in accordance with this opinion.
Footnotes
1. Recurrent, uncontrollable, brief episodes of sleep, often associated with hypnagogic hallucinations, cataplexy, and sleep paralysis. Dorland's Illustrated Medical Dictionary 1101 (28th ed. 1994).
2. 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).
3. See footnote 1.
4. Polaski v. Heckler, 739 F2d 1320 (subsequent history omitted).