KENNETH S. APFEL,
Commissioner of Social Security,
[1998 DSD 23]
United States District Court
District of South Dakota
MEMORANDUM OPINION AND ORDER
Filed Sept 1, 1998.
Richard H. Battey, Chief Judge
I. PROCEDURAL HISTORY
[¶1] In an opinion dated August 30, 1996, Lloyd E. Hartford, an Administrative Law Judge ("ALJ"), denied plaintiff Gene Donnafield ("Donnafield") Title II disability benefits under Title II of the Social Security Act, 42 USC §§ 401-33. Donnafield requested review by the Appeals Council of the ALJ's decision, and the Appeals Council declined review. Donnafield next filed a complaint before this Court seeking review of the ALJ's decision denying him social security benefits. On June 9, 1998, Donnafield filed his motion for summary judgment. Plaintiff urges this Court to reverse the decision of the ALJ denying him benefits and to grant him disability benefits based upon the administrative record. The Commissioner of Social Security ("Commissioner") filed his response urging that he is entitled to summary judgment as a matter of law and that the decision by the ALJ should be affirmed. Donnafield has filed his reply. This Court has jurisdiction to proceed pursuant to 42 USC § 405(g).
[¶2] Donnafield was born on March 13, 1950. He has ten years of primary and secondary education resulting in a G.E.D. as well as an Associate's Degree from Western Technical Institute in El Paso, Texas. Tr. 309. Donnafield's associate's degree was earned in microcomputer technology and TV/VCR repair. Tr. 309. Donnafield served in the United States Army from 1968-88 and obtained the rank of Sergeant First Class. For at least five of his twenty years in the military, Donnafield served as a field wireman including a tour of duty in Viet Nam (1969-70). Tr. 320. In 1978, Donnafield was diagnosed with insulin dependent diabetes mellitus, and his duty was then limited to avoid assignments in isolated areas where definitive medical care would be unavailable. Tr. 320. Donnafield left the military in 1988 and upon his leaving, the Veteran's Administration ("VA") gave him a disability rating of 60 percent.(fn1) Tr. 36. By 1992, the VA rated him at 100 percent disabled.(fn2) Tr. 36.
[¶3] After leaving the military, Donnafield worked as a security guard in El Paso, Texas, from 1989-90, but this job ended when a new security company took over patrol duties. Tr. 321. Donnafield testified at the administrative hearing held July 31, 1996, that after he obtained his associate's degree in TV/VCR/microcomputer repair, he attempted to work in this field but, "can't see the minute stuff anymore, like the little . . . computer chips have little prongs on them and stuff and they all do certain things and you have to probe them all out and I'm normally on one or two of them at the same time and it's normally the wrong one." Tr. 33. After leaving this job, Donnafield worked sorting electronic outlet covers and wiring an amphitheater. In both cases, Donnafield quit after a period of brief employment due to pain in his hands, lack of manual dexterity in his hands, dizziness, and lightheadedness. Tr. 322. By 1993, Donnafield attempted to work as a delivery driver for an automobile dealership, but quit this job after one day when he decided it "wasn't for me."(fn3) Tr. 322. Donnafield's last attempt at employment was again as a security guard in El Paso, Texas. Tr. 323. Donnafield was fired from this position after he skipped his requisite evening snack, suffered an insulin reaction, and was taken to the hospital. Tr. 37; see also Tr. 323.
[¶4] Donnafield testified that he has insulin reactions sometimes twice a week, which may require recuperation lasting up to six or eight hours. Tr. 40. When having insulin reactions, his mouth and lips become numb and he suffers from fatigue: "I would just be extremely tired and just feel like you've been up all night."(fn4) Tr. 49. Donnafield has kept diaries of his blood sugar levels at various points in the past. Tr. 73. On this basis, he testified that despite a regular diet and the same amount of insulin, sometimes his blood sugar fluctuates from 140 in the evening to 38 in the morning.(fn5) Tr. 75.
[¶5] Donnafield stated that beyond his diabetes, he suffers from degenerative arthritis, his knees "are shot" and that he has problems with circulation in his feet and blurred vision due to diabetic retinopathy, although he sees well enough to drive during the day. Tr. 40-44; see also Tr. 61. For his diabetes, Donnafield takes daily insulin injections, though he testified at the administrative hearing that for his arthritis and poor circulation he usually only takes over-the-counter strength ibuprofen, sometimes up to 800 milligrams a day. Tr. 48. Donnafield explained to the ALJ that he can sit for up to an hour at a time, but then must get up and move around for approximately one-half hour or his feet become "numb and weird." Tr. 50. He also stated that he can lift up to twenty pounds, but that this bothers his back, arms, hands, wrists and knees and that he does not have difficulty pushing or grasping or holding objects with his hands, but he cannot use a lawnmower due to the vibration. Tr. 52-55.
[¶6] Donnafield testified that he is able to take care of his personal needs such as dressing himself, brushing his hair, shaving, and brushing his teeth. Tr. 63-64. He also stated that during the day he drives a Nissan pickup truck with a standard transmission.(fn6) Tr. 64. He performs household chores, including doing the dishes, cooking, washing clothes, sweeping floors, dusting, painting, and taking out the garbage. Tr. 65-66; see also Tr. 69. Donnafield also engages in social activities, including walking with his girlfriend, fishing, black-powder shooting, and occasional weekend trips out of town. Tr. 68-70.
III. DECISION BY THE ALJ
[¶7] In assessing the sequential process(fn7) which is required when determining if an individual is disabled pursuant to the Social Security Act, the ALJ first concluded that Donnafield has not performed any substantial gainful activity ("SGA") since September 1, 1990, the amended date of disability onset. Second, the ALJ found that Donnafield did suffer from severe medical impairments, although he opined that they do 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. (1996).
[¶8] Upon a decision that Donnafield could no longer perform any previous relevant work, the ALJ's next step was to calculate Donnafield's residual functional capacity ("RFC"). A claimant's RFC is based upon the medical evidence of the record, as well as his testimony and credibility. It is used to determine the particular type of work Donnafield may be able to perform, despite his severe impairment. See 20 CFR § 404.1545. The ALJ cited the criteria set out at 20 CFR § 404.1529 as the basis under which he evaluated Donnafield's subjective symptoms, such as pain.(fn8) On the basis of these factors, the ALJ found that Donnafield's testimony as to his limitations was not fully credible. The ALJ also noted that the VA had rated Donnafield 100 percent impaired and as a result, he received $1,945 in disability benefits per month. However, the ALJ went on to point out that:
the VA terminology is not equivalent to Social Security's definition of disability and it is not binding upon the Social Security Administration.
Rather, there is substantial evidence that although the claimant cannot do his past relevant work, particularly the jobs he performed while in the Army, he can do other work considering the limitations outlined.
[¶9] Pointing to the contrast between Donnafield's testimony at the administrative hearing and the medical documents available on the record, the ALJ noted multiple inconsistencies. Donnafield testified that his eyes are tired and that his vision is poor, but based upon the available medical records, the ALJ found no disabling visual impairments. The ALJ determined that this was consistent with Donnafield's testimony that he could drive a car during the day, but not at night.
[¶10] Citing to the administrative hearing, the ALJ pointed to Donnafield's testimony that he has problems working when it is too hot or too cold and that he said he can climb two flights of stairs, but then feels shaky. Donnafield also alleged poor finger dexterity of the right dominant hand, while at the same time stating that he has adequate grip strength. The ALJ went on to note that Donnafield drives a standard transmission vehicle, finding that this indicates that Donnafield can operate the hand and foot controls despite his complaints of arthritis in the hands and knees. The ALJ also concluded that although Donnafield complained of problems with writing due to limited hand dexterity and pain, such cannot be the basis for disability, no matter how genuine, in the absence of medical signs and findings. For this conclusion, the ALJ pointed to medical documents in the record that showed Donnafield had adequate grip strength and suffered from no confirming clinical evidence of arthritis or other abnormality on x-ray.
[¶11] Turning his attention to physical functions, the ALJ pointed to Donnafield's testimony that he can sit for 45 minutes to an hour, although he then must get up at for at least 30 minutes because his feet begin to feel numb. He also stated that he can stand and walk for two hours, but then feels worn out, and that he can lift and carry 20 pounds at a time and bend on an occasional basis, though he testified that after painting the walls of his trailer, his arms and shoulders became sore.
[¶12] Upon reviewing Donnafield's daily activities, the ALJ found them to be consistent with sedentary activity, pointing to Donnafield's statements that he spent his days watching television and performing a variety of household chores, including doing the dishes and laundry, cooking, sweeping, dusting, and taking out the garbage. Furthermore, the ALJ found Donnafield's statements to be inconsistent where he alleged he had difficulty concentrating at least one hour a week, and then testified that he had no difficulty reading for 45 minutes at a time and that he had successfully completed his associate's degree in 1990 or 1991, after his alleged onset date. The ALJ acknowledged that this could not be considered substantially gainful activity, but pointed out that such activity at least shows that Donnafield was at able to attend classes, travel to and from school, take notes, listen to lectures, study, read, and concentrate.
[¶13] Turning to Donnafield's status as an insulin dependent diabetic, the ALJ noted that Donnafield had testified he injected insulin twice a day to control his diabetes while simultaneously contending that he suffered from hypoglycemic reactions 1or 2 times a week; each attack sometimes lasting from 6 to 8 hours. The ALJ further noted that Donnafield had alleged other complications of the diabetes, including blurred vision, problems with lack of stamina, dizziness, and fatigue during hypoglycemic reactions. In response, the ALJ concluded that the medical information to be found on the record failed to support Donnafield's contention of total disability on this basis. The ALJ pointed to Donnafield's statement that he had 1 or 2 hypoglycemic reactions a week, saying it was inconsistent with Donnafield's 1993 statement to Porfirio Lozano, Jr., D.O., a VA staff physician; namely, that Donnafield had told Dr. Lozano that he had had only 10 episodes of hypoglycemia in a time span of approximately 20 years and that these attacks could be relieved by eating a banana or drinking a glass of orange juice. The ALJ also noted that Donnafield had told Lozano that his diabetes was under fair control through the taking of insulin.
[¶14] The ALJ did acknowledge that Donnafield's diabetes was "not under optimal control" for a short period in 1993, but upon citing to medical records and VA progress notes, he concluded that Donnafield's diabetes became well regulated after the 1993 problems. The ALJ also dismissed Donnafield's claims of blurred vision, stating that these problems could be corrected with eye glasses and that as of a June 1993 medical exam, Donnafield showed no evidence of any diabetic retinopathy.
[¶15] The ALJ's opinion next addressed Donnafield's allegations of disability based upon a variety of pain complaints affecting the neck, back, right forearm, both hands, and both knees, as well as his complaints of poor circulation. On these points, the ALJ concluded that the medical records did evidence some degenerative changes, "but not at the level which would significantly limit his physical functions." The ALJ based this conclusion upon medical records reflecting a VA evaluation and series of x-rays conducted in June 1993 which showed only minor degenerative changes of the knees, cervical spine, and lumbar spine. The ALJ went on to say that there was no confirming clinical findings of a significant spinal abnormality to support Donnafield's allegation that his back gives out, nor any evidence of arthritic changes of the hand and right forearm, nor any instability or weakness or limitation of motion in the knees. Here, the ALJ also noted that Donnafield's gait was normal, and that the examination showed no signs of atrophy on any of the lower extremities. In support of this conclusion, the ALJ also cited to a medical consultation conducted in January 1994 which determined that Donnafield's circulation was within normal limits and that Donnafield had no podiatric complaints in either April 1994 or in October 1994.
[¶16] The ALJ next acknowledged that Donnafield was treated for a back strain in September 1994, but that his symptoms resolved themselves with heat treatment, muscle relaxants, and ibuprofen. The VA physician noted at this examination that Donnafield had a full range of motion in the neck, and that x-rays revealed no evidence of acute injury to the spine, other than minor degenerative changes.
[¶17] The ALJ found it significant that were it not for the VA compensation and pensions examinations of December 1988 and June 1993, "there would be very little in the way of medical care other than outpatient care since September 1, 1990." Here the ALJ cited by way of example, several trips to outpatient care made by Donnafield in response to a cold, diabetic treatment, diabetic education, minor injuries, sinusitis and more recently, treatment for a stiff neck.
[¶18] The ALJ also concluded that there is no evidence of situational anxiety, pointing to an absence in the record of any diagnosis of a medically determinable mental impairment. The ALJ pointed out that Donnafield has not required counseling and does not take any psychotropic medication. Moreover, Donnafield's MMPI test, administered in February 1996, indicated good social skills and ego functioning.
[¶19] By way of summation, the ALJ concluded that on the basis of the entire medical record, Donnafield's claims of hypoglycemic reactions occurring 1 or 2 times a week could not be accepted. In support of this proposition, the ALJ surmised that:
if the claimant's self report of hypoglycemic reactions was accurate to the degree alleged, then it is likely that he would have sought medical care. However, the medical record reflects only one emergency room visit for a hypoglycemic reaction of September 1993. Otherwise, the medical record indicates the claimant's diabetes is under adequate control with insulin.
[¶20] In further summary, the ALJ concluded that Donnafield retains considerable functional capacity to perform substantial gainful activity, finding little support for allegations that his diabetes is not under control with insulin or that he experiences frequent hypoglycemic reactions as described. Moreover, the ALJ concluded that there is also little medical evidence to support Donnafield's claims of diabetic complications. Although he acknowledged that Donnafield is not pain free, the ALJ maintained that the pain he is under can be relieved with ibuprofen and the changing of physical positions.
[¶21] The ALJ also dismissed Donnafield's allegations that he lacked finger dexterity, pointing to Donnafield's ability to drive a car and perform household chores. Also as a basis for his conclusions, the ALJ cited the absence of medical treatment such as pulmonary therapy, pain management programs, physical therapy, chiropractic care, as well as a lack of surgical intervention.
[¶22] On the analysis provided above, the ALJ found that Donnafield has the residual functional capacity to perform a nearly full range of sedentary work allowing flexibility of positions. The ALJ further concluded that Donnafield can lift and carry no more than 12 pounds at a time and that he can occasionally bend, stoop, crouch, and kneel. This restriction to sedentary work accommodates Donnafield's level of pain, limitations, and use of prescription ibuprofen as needed. The ALJ cited the testimony of Dennis Parker, a certified vocational expert, regarding a series of hypotheticals he was provided with that mirrored Donnafield's condition as concluded by the ALJ. Under step five of the requisite analysis, Parker testified that other jobs did exist in the national economy that are consistent with Donnafield's medically determinable impairments, functional limitations, and vocational factors. Accordingly, Parker testified that Donnafield had transferable skills in leading and dealing with people, reasoning abilities, and answering telephones. Further, Parker testified, and the ALJ agreed, that there are other jobs in the national economy, existing in significant numbers, that Donnafield could perform. By way of example, Parker concluded that Donnafield could work as a police aide or motor vehicle dispatcher, and that he could perform unskilled sedentary work, such as a surveillance system monitor. The ALJ agreed with Parker, concluding that all of the above jobs allow flexibility of positions, do not require lifting more than 12 pounds, and involve only occasional bending, stooping, kneeling, and crouching. Given the above conclusions, the ALJ found that Donnafield was not disabled as defined by the Social Security Act.
IV. STANDARD OF REVIEW
[¶23] 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 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 less than a preponderance, but enough evidence that a reasonable mind might find it adequate to support the conclusion. Fines v. Apfel, No. 97-3254, 1998 WL 414437, *1 (8th Cir. SD) (citing Oberst v. Shalala, 2 F3d 249, 250 (8th Cir. 1993)). See also 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)); 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).
[¶24] 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.
[¶25] For Donnafield 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(d)(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 particular case, the ALJ must follow the requisite five steps.(fn9) See Evaluation of Disability Rule, 20 CFR § 404.1520 (1996). Donnafield urges that the ALJ's finding that Donnafield is able to perform work within the national economy was not supported by substantial evidence. Specifically, Donnafield has proffered five objections to the ALJ's conclusions: (1) that the ALJ failed to give appropriate consideration to the VA's determination that plaintiff is 100 percent disabled; (2) that the ALJ had a duty to better develop the record, to insure expert interpretation of the medical evidence; (3) that the ALJ's credibility assessment of Donnafield was based upon a mistake of fact and a mistake of law; (4) that the residual functional capacity formulation chosen by the ALJ failed to incorporate all of Donnafield's limitations; and (5) that the vocational evidence provided at the administrative hearing did not constitute substantial evidence under the circumstances of this case.
[¶26] A. The ALJ's Consideration of the VA's 100 Percent Disabled Rating
[¶27] Donnafield argues that the ALJ failed to give appropriate consideration to the VA's determination that Donnafield, as of 1993, was 100 percent disabled. A disability rating given by the VA, however, does not automatically qualify Donnafield for social security benefits. Fisher v. Shalala, 41 F3d 1261, 1262 (8th Cir. 1994). Under applicable regulations:
A decision by any nongovernmental agency or any other governmental agency about whether you are disabled or blind is based on its rules and is not our decision about whether you are disabled or blind. We must make a disability or blindness determination based on social security law. Therefore, a determination made by another agency . . . is not binding on us.
20 CFR § 404.1504. The VA's determination that Donnafield was 100 percent impaired was based on its examination of Donnafield which took place during a period of fluctuating blood sugar levels in 1993.(fn10) In a detailed opinion, the ALJ acknowledged that during 1993 Donnafield suffered a period where his diabetes was "not under optimal control," but he went on to note that there was little evidence in the record, beyond Donnafield's own testimony at the administrative hearing, to show that Donnafield continued to be subject to frequent hypoglycemic attacks after 1993. What evidence to believe and what weight that evidence is to be given is the prerogative of the ALJ as fact-finder, within broad limits. Onstad v. Shalala, 999 F2d 1232, 1346 (8th Cir. 1993).
[¶28] B. The ALJ's Duty to Develop the Record
[¶29] Donnafield has also contended that the ALJ had a duty to develop the record in greater detail to insure an expert interpretation of the medical evidence. Donnafield seeks remand on this basis. Donnafield urges that it was because the ALJ "failed to comprehend the medicine" that the ALJ decided Donnafield was not credible. Specifically, Donnafield contends that it was his fluctuating blood sugar levels and frequent hypoglycemic reactions that resulted in his inability to maintain a job and hence, the ALJ should have asked for and considered the opinion of a medical advisor concerning whether Donnafield's impairments could reasonably be expected to produce the alleged symptoms. This proposition is without merit.
[¶30] In considering this contention, the question is whether Donnafield was treated unfairly or prejudiced by how the ALJ did or did not develop the record. Phelan v. Bowen, 846 F2d 478, 481 (8th Cir. 1988); see also Onstad, 999 F2d at 1232. In his opinion, the ALJ did not deny that frequently fluctuating blood sugar levels due to insulin dependent diabetes mellitus could result in hypoglycemic reactions. Rather, the ALJ looked to the medical record provided, pointing out that Donnafield had had few complaints of hypoglycemic reactions since 1993. Although Donnafield sought out medical care between 1994 and 1996, it was predicated upon other medical matters, including a jammed thumb, congestion, a desire to stop smoking, and stiffness in his back and neck. In fact, the medical record post-1993, provides a substantial basis for the ALJ's conclusion that Donnafield was not concerned about hypoglycemic reactions. The VA medical progress notes taken on May 15, 1994, indicated that Donnafield reported his diabetes was "well regulated." Tr. 276. On November 14, 1995, Donnafield visited the Hot Springs VA and according to the pharmacy progress notes, denied he had any new problems and that he felt good. Tr. 303. In a February 15, 1996, visit to the VA, the medical progress notes, while noting Donnafield's history of insulin dependent diabetes mellitus, indicated that Donnafield was not in any distress beyond some neck discomfort and stiffness. Tr. 296. A lack of objective medical evidence is a factor that may be considered in an ALJ's determination of severity of disability. Cruse v. Bowen, 867 F2d 1183, 1186 (8th Cir. 1989); Ward v. Heckler, 786 F2d 844, 847
(8th Cir. 1986). Even if the medical evidence regarding the frequency of Donnafield's hypoglycemic attacks was equally balanced, it is the ALJ who is to resolve this conflict. Spradling v. Chater, 126 F3d 1072, 1075 (8th Cir. 1997) (citing Bentley v. Shalala, 52 F3d 784, 787 (8th Cir. 1995)). Thus, substantial evidence supports the ALJ's determination that Donnafield was no longer suffering from frequent hypoglycemic attacks after 1993.
[¶31] C. The ALJ's Credibility Determination
[¶32] Donnafield further urges that the ALJ's credibility assessment was based upon mistake of fact and error of law, countering that Donnafield's testimony of hypoglycemic reactions should not have been determined to be lacking in credibility. In analyzing Donnafield's subjective complaints, an ALJ must examine : (1) the claimant's daily activities; (2) the duration, frequency, and intensity of the pain; (3) dosage, effectiveness, and side effects of medication; (4) precipitating and aggravating factors; and (5) functional restrictions. Polaski v. Heckler, 739 F2d 1320 (8th Cir. 1984). Although an ALJ may not discount a claimant's subjective complaints based solely for the reason that no objective medical evidence supports its existence, he may discount such complaints if there are inconsistencies on the record as a whole. Brockman v. Sullivan, 987 F2d 1344, 1346 (8th Cir. 1993); see also Matthews v. Bowen, 879 F2d 422, 425 (8th Cir. 1989). The ALJ's opinion demonstrates that he duly considered Donnafield's subjective complaints of disabling symptoms, recognized his obligations under the Polaski standard, carefully evaluated the evidence Donnafield presented, and concluded his complaints were not credible for several reasons.
[¶33] The ALJ concluded that Donnafield's daily activities were not consistent with a person suffering to the extent Donnafield alleged. Donnafield testified that his daily routine consists of cleaning the house, sometimes sweeping, often doing dishes, driving, walking in the evenings with his girlfriend, fishing, black-powder shooting, and occasional trips out of town. Tr. 65-70. It is well recognized that such extensive daily activities are uncharacteristic of a person unable to engage in any type of gainful employment. Spradling, 126 F3d at 1075; Brockman, 987 F2d at 1346; Onstead v. Sullivan, 962 F2d 803, 805 (8th Cir. 1992).
[¶34] The ALJ also noted that the medical evidence on the record regarding the duration and intensity of Donnafield's alleged hypoglycemic attacks was also inconsistent with Donnafield's testimony. There is little evidence on the record that Donnafield sought medical treatment for his alleged frequent hypoglycemic attacks after 1993. It is proper for the ALJ to consider a plaintiff's failure to seek medical treatment when determining plaintiffs credibility. McClees v. Shalala, 2 F3d 301, 303 (8th Cir. 1993); Walker v. Shalala, 993 F2d 630, 631-32 (8th Cir. 1993).
[¶35] In finding Donnafield's subjective complaints lacking in credibility, the ALJ pointed to Donnafield's limited use of medication, beyond his daily use of insulin, use of ibuprofen, and some muscle relaxants. Donnafield's assertion of disability is also based upon complaints that he suffers from various arthritic conditions of the knees, back, and hands, as well as a stiffness in his neck. In his findings, the ALJ did not deny the existence of these painful problems, rather, he found that standing alone they were not extensive enough to be a basis for finding that Donnafield was unable to engage in any type of gainful employment. A failure to take strong pain medication has been determined to be inconsistent with subjective complaints of disabling pain. See, e.g., Haynes v. Shalala, 26 F3d 812, 814 (8th Cir. 1994); Nelson v. Sullivan, 966 F2d 363, 367 (8th Cir. 1992). Moreover, the ALJ pointed to Donnafield's medical records including the VA's 1993 compensation examination which illustrated that, though Donnafield was suffering from some degenerative changes, these changes were simply not at the level required for a finding of disability. Further, this evaluation showed no evidence of any spinal instability to support Donnafield's claims that his back gave out. The ALJ also noted that there is no medical evidence of arthritic changes in the hand or forearm, his gait was normal, and there was no atrophy of the lower extremities. As is often stated, "there is no doubt that the claimant is experiencing pain; the real issue is how severe that pain is." Thomas v. Sullivan, 928 F2d 255, 259 (8th Cir. 1991). Donnafield also testified at the administrative hearing that he could lift up to 20 pounds, brush his own hair, shave, and feed himself and drive a standard transmission automobile with no problems. On this basis, the ALJ's determination that Donnafield's pain was not so extreme as to be disabling is supported by substantial evidence.
[¶36] D. The ALJ's RFC Formulation
[¶37] Donnafield also urges that the ALJ's formulation of his residual functional capacity failed to incorporate all of Donnafield's limitations. Specifically, Donnafield asserts that the ALJ's determination of his RFC improperly excluded all the limiting effects of the diabetes such as mild neuropathy, circulatory impairment, and blurring vision due to mild retinopathy. Such an assertion is not borne out by the record. A plaintiff's RFC is a measure of what the individual can still do in spite of his physical and mental limitations or environmental restrictions, placed in terms of his physical, sensory, cognitive, judgmental, and adaptive abilities. 20 CFR § 404.1521. The ALJ expressly considered the above limiting effects and found that Donnafield has the residual functional capacity to perform nearly a full range of sedentary work allowing for a flexibility of positions. During Donnafield's testimony at the administrative hearing, he testified that the mild blurring of vision he had suffered was corrected with proper eyeglasses, and that he was in need of a new prescription. Tr. 45. Donnafield further testified, and the ALJ noted in his opinion, that he took ibuprofen for his circulation. The ALJ also pointed out that Donnafield's circulation was considered to be within normal limits as of a January 1994 doctor's visit. Contrary to Donnafield's assertion that the ALJ took an "all or nothing" approach to the RFC assessment, the record demonstrates that the ALJ, in fact, considered each of Donnafield's potential limiting effects of his diabetes in turn, and found that they were unsupported by the medical evidence and Donnafield's own testimony.
[¶38] E. The Vocational Evidence
[¶39] Finally, Donnafield contends that the vocational evidence cannot be considered substantial evidence under the circumstances of this case. The ALJ determined that Donnafield was unable to perform his prior relevant work as a military mechanic and as a security guard. Tr. 37, 141-142. At this point, the burden of proof shifted to the Commissioner to determine if there was a significant number of jobs in existence in the national or regional economy which Donnafield could perform, considering his age, education, previous work experience, and RFC. Frankl v. Shalala, 47 F3d 935, 937 (8th Cir. 1995). To meet this burden, the ALJ sought the testimony of Dennis Parker, a certified vocational expert who had familiarized himself with Donnafield's past work history. On the basis of Donnafield's past work history and RFC, Parker testified that there exists a significant number of jobs in the regional and national economy that could be performed by Donnafield. By way of example, Parker cited the jobs of police aide, motor vehicle dispatcher, and surveillance system monitor.(fn11) Donnafield urges that the testimony of the vocational expert is not based upon substantial evidence, as it is premised upon an incomplete RFC. This assertion is without merit. The weight to be given to testimony is for the fact-finder to decide. Onstad, 999 F2d at1243. Hence, if the ALJ did not find Donnafield's complaints of hypoglycemic attacks, blurred vision, debilitating back and neck pain, lack of dexterity in the hands and poor circulation to be credible, as discussed above, then he is under no duty to incorporate these findings in the hypotheticals posed to the vocational expert. Id. Therefore, the ALJ's determination that Donnafield is not disabled is supported by substantial evidence.
[¶40] Based upon the foregoing discussion, it is hereby
[¶41] ORDERED that judgment shall be entered in favor of the defendant and against the plaintiff. Costs shall not be assessed.
1. This 60 percent disability rating was based on a "compensation and pension examination" given to Donnafield by the VA in 1988, specifically for impairment rating purposes. On the basis of this examination Donnafield was diagnosed with diabetes mellitus, insulin dependent, arthralgia of both hands, the right forearm and the left knee, peripheral vascular disease involving both feet, probable muscle tension headaches, minimal degenerative disease involving the knee joints, dysphagia, and an edema in the duodenal cap. Tr. 161.
2. Donnafield's 100 percent disability rating was based upon his diagnosis following another "compensation and pension examination" conducted by the VA in 1993. On the basis of this examination, Donnafield was again diagnosed with insulin dependent diabetes mellitus, although it is noted that his symptoms were "under control with medication." [emphasis added] Tr. 217. He was also diagnosed with peripheral vascular disease involving both lower extremities, peripheral vascular arterial disease involving both lower extremities, degenerative osteoarthritis in the right knee, Myosotis and myalgia in both hands and degenerative arthritis in the cervical and lumbar spine, as well as in the left knee. Tr. 217.
3. There exists some inconsistency in the record on this point. The summary of Donnafield's work background indicates that he quit because the job was not for him. However, Donnafield testified at the administrative hearing that "the constant setting [sic] in one spot" was the problem.
4. Donnafield testified that as a result of insulin reaction he would miss work approximately five or six times a month. Tr. 79. He stated in the administrative hearing that "[s]ometimes I wouldn't even go to work because I didn't feel like it, you know, because of the insulin reactions. I'd just stay home, call them up and say, sorry, I don't feel like it." Tr. 77.
5. A normal range for blood sugar is between 65 and 115.
6. Donnafield testified that though he can drive at night, he prefers not to. Tr. 62. In 1992, Donnafield blacked out while driving, purportedly due to an insulin reaction, wrecking his vehicle. Tr. 312, 321.
7. 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. (1996)].
(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).
8. These factors are the same as outlined in the well cited case of Polaski v. Heckler, 739 F2d 1320, 1322 (8th Cir. 1984):
The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant's prior work record, and observations by third parties and treating and examining physicians relating to such matters as:
1. The claimant's daily activities;
2. the duration, frequency and intensity of the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of medication;
5. functional restrictions.
Polaski, 739 F2d at 1322.
9. See footnote 7.
10. In his Supplement to Plaintiff's Rely Brief, Donnafield pointed to the case of Morrison v. Apfel, ___ F3d ___ (8th Cir. No. 97-3865MN, filed July 17, 1998). In Morrison, the Court held that "[i]f the ALJ was going to reject the VA's finding, reasons should have been given, to enable a reasoned review by the courts." First, it should be noted that this case cannot control the decision of the ALJ, as it was decided after the ALJ's opinion had been issued. Further, the ALJ's conclusions did acknowledge Donnafield's frequent hypoglycemic attacks in 1993, the date of the VA's impairment determination; however, the ALJ went on to provide detailed reasons why he rejected Donnafield's contentions that these attacks continued after 1993.
11. The vocational expert testified that at the sedentary exertional level, a job such as a police aide offers approximately 15 to 20 positions in the regional economy of southwestern South Dakota, and 45,000 positions nationally. A motor vehicle dispatcher position offers 94 positions regionally in southwestern South Dakota, and 115,000 nationally. The vocational officer also noted that Donnafield could perform the unskilled position of surveillance system monitor, though he did not provide the number of positions available. Donnafield contends such a failure was reversible error. This argument too is without merit, as Parker's testimony regarding the position of police aide and motor vehicle dispatcher is, by itself, substantial evidence of suitable jobs to be found in sufficient numbers in the regional and national economy.