JEFFREY J. ACHTENBERG,
KENNETH S. APFEL,
Commissioner of Social Security,
[1998 DSD 24]
United States District Court
District of South Dakota
MEMORANDUM OPINION AND ORDER
Filed Aug 28, 1998
Richard H. Battey, Chief Judge
I. PROCEDURAL HISTORY
[¶1] In an opinion dated December 20, 1996, Jon L Lawritson, an Administrative Law Judge ("ALJ"), denied plaintiff Jeffrey J. Achtenberg ("Achtenberg") Title II disability benefits under Title II of the Social Security Act ("the Act"), 42 USC §§ 401-33. Achtenberg then requested review by the Appeals Council of the ALJ's decision, and the Appeals Council declined review. On March 20, 1998, Achtenberg filed a complaint before this Court seeking review of the ALJ's decision denying him social security benefits. Achtenberg urges this Court to reverse the decision of the ALJ denying his 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 of the ALJ should be affirmed. Achtenberg has filed his reply. This Court has jurisdiction to proceed pursuant to 42 USC § 405(g).
[¶2] Achtenberg was born on May 19, 1959. His age is now 39. He has a high school education and an associate's degree in auto mechanics from North Dakota State School of Science. Tr. 40. At the time of the administrative hearing, held on November 8, 1996, Achtenberg was attending Black Hills State University in Spearfish, South Dakota, for a degree in secondary education. Tr. 43. Prior to his alleged date of onset (January 21, 1995), Achtenberg worked as a delivery driver for United Parcel Service ("UPS"). Tr. 101. Achtenberg has also worked as an auto mechanic and assistant grain elevator operator. Tr. 102-03. In October 1990, Achtenberg injured his back while picking up a heavy package on the job. Tr. 105. After four months of occupational therapy, he returned to work. Tr. 105. By January 21, 1995, Achtenberg's condition had worsened again, and he quit UPS. Tr. 105. Achtenberg was diagnosed with degenerative disc disease and an L5-S1 disk bulge slightly abutting the S1 nerve root in January 1995. Tr. 136.
[¶3] Achtenberg testified at the administrative hearing that, although the severity of his pain had lessened, it is still present in his daily life. Tr. 42. He stated that his pain varies, depending on the weather, and that when it is colder he suffers more. Tr. 43. As of the time of the hearing, Achtenberg testified that he endures pain mostly along his right side, and that he no longer has pain throughout his entire back, upper back, lower back, buttocks, and down his right leg. Tr. 43. Achtenberg uses stretching techniques, walking, relaxation, and self-meditation to control his pain on a daily basis, preferring to avoid medication that he believes only "masks the pain." Tr. 43-45.
[¶4] Achtenberg's daily activities include cooking, playing with and reading to his children, performing light housework, dusting, and doing laundry. Tr. 45. He testified that he can lift up to 20 pounds, pain free, and occasionally help up to 40 pounds, though he was unsure how much he could lift on a routine basis. Tr. 45, 53. Achtenberg also stated that he can sit comfortably for one-half-hour, but then must walk or change positions. He also avoids bending and stooping out of a fear that such actions could cause his back to flare up. Tr. 45-46. Achtenberg explained that he must lie down at least three times daily or his level of pain will increase throughout the day. Tr. 48. This testimony was reiterated by Achtenberg's wife who also testified at the administrative hearing. Tr. 62.
[¶5] Although Achtenberg testified that he could consistently arrive at work in the morning, he does not believe, in light of his pain, that he could maintain a full-time job. Tr. 54. He stated: "[t]here's some days it just -- I wake up with . . . [the pain]. I mean, it's always there. Some days I can't get rid of it with my exercises, with my meditation, with my -- everything I've been taught to do." Tr. 54.
[¶6] At the administrative hearing Martin L. Rauer, a vocational expert, testified at the request of the ALJ. Tr. 55. Based upon a review of Achtenberg's file and testimony, Rauer stated that at the light exertional level, with a sitting and standing option, there exists at least two skilled positions in the national economy that Achtenberg could perform; namely, as a service automotive technician, and as a bicycle assembly person.(fn1) Tr. 58. In regard to unskilled positions, Rauer stated that Achtenberg could perform the position of a private dispatcher, information clerk, or survey worker.(fn2) Rauer testified further that if Achtenberg's assertions of severe pain and its resulting limitations were taken as fully credible, he could think of no work in the national economy that Achtenberg could perform. Tr. 60.
III. DECISION BY THE ALJ
[¶7] In assessing the sequential process(fn3) which is required when determining if an individual is disabled pursuant to the Social Security Act, the ALJ first concluded that Achtenberg has not performed any substantial gainful activity ("SGA") since the alleged onset date of January 21, 1995. Second, the ALJ found that Achtenberg 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). Specifically, the ALJ concluded that the requisite findings as to vertebral fracture, spinal immobility, osteoporosis, or muscle weakness, motor, sensory and reflex loss as required by section 1.05 are absent.(fn4) See section 1.05(C) of the Listing of Impairments, Appendix 1 to Subpart P of Part 404, 20 CFR § 404.1521.
[¶8] Next the ALJ determined, as per the fourth step in the sequential process, that Achtenberg would be incapable of returning to any of his past relevant work. In this regard, the ALJ pointed to the testimony of vocational expert, Rauer, who opined that Achtenberg's previous work history involved medium to heavy and sometimes very heavy exertional requirements that were no longer compatible with Achtenberg's impairment. Tr. 27.
[¶9] Acknowledging that the burden shifts to the Secretary upon the determination that Achtenberg can no longer return to his previous occupation, the ALJ turned his attention to Achtenberg's residual functional capacity for work activity. After listening to all of the subjective limitations described by Achtenberg, the ALJ stated that if such statements "were taken as entirely credible, I would conclude that he is incapable of performing any type of work on a substantial basis and is therefore disabled." Tr. 28. The ALJ was of the opinion, however, that Achtenberg "exaggerates both his symptoms and limitations." Tr. 28. In making this determination, the ALJ pointed to Achtenberg's school attendance, including 9 credit hours his first semester, summer school attendance, and 13 credit hours his second semester. The ALJ found that such attendance was dramatically at variance with his allegations of disabling pain, noting further that Achtenberg's statements were contradictory when he testified that he sat for 45 minutes in each class, while also testifying that he could only sit for 30 minutes at a time.
[¶10] The severity of Achtenberg's alleged pain was also discredited, the ALJ noted, by Achtenberg's refusal to use any pain medication. Here, the ALJ acknowledged that Achtenberg's doctors apparently approved of his avoidance of pain medication, but the ALJ went on to conclude that the fact that he is capable of abstaining from such medication indicates that his pain is not as severe as he claims. The ALJ also found Achtenberg's extensive daily activities, including taking care of his children, dusting, doing laundry and organizing the house, to be inconsistent with his alleged level of severe pain.
[¶11] Turning to the objective medical evidence, the ALJ concluded that it also supported a finding that Achtenberg was not disabled. The ALJ cited to numerous medical documents in the record that indicated that Achtenberg was doing well and improving with treatment, placing particular emphasis on the progress notes written by Achtenberg's treating physician, Dr. Larry Teuber. Dr. Teuber, the ALJ noted, did not indicate that Achtenberg was disabled, rather he recommended that Achtenberg learn to manage his pain and obtain retraining so that he could enter another line of work. The ALJ also emphasized the progress notes taken by Achtenberg's physical therapist, Geoffrey Bonar. Bonar noted that although Achtenberg continued to have localized flares, his condition improved with treatment, and his range of motion was essentially within functional limits.
[¶12] Based upon the evidence as a whole, the ALJ ultimately concluded that although Achtenberg is unable to perform the full range of light work due to his requirement that he be able to sit and stand as needed, he retains the residual functional capacity for a wide range of light work activity. Hence, the ALJ found that Achtenberg is not disabled.
IV. STANDARD OF REVIEW
[¶13] 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. S.D.) (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).
[¶14] 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.
[¶15] For Achtenberg to be eligible for disability benefits, he must be under a disability at the time he was insured. See 42 USC § 423(a)(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.(fn5) See Evaluation of Disability Rule, 20 CFR § 404.1520 (1996). Achtenberg urges that the ALJ's finding that Achtenberg is able to perform work within the national economy was not supported by substantial evidence. Specifically, Achtenberg has proffered two objections to the ALJ's conclusions: (1) that Achtenberg's impairment meets or equals an impairment as listed under 20 CFR 404(P) (Listing 1.05(C));(fn6) and (2) that the ALJ's credibility determination is not supported by substantial evidence.
[¶16] A. Whether Achtenberg's impairment is listed?
[¶17] Achtenberg contends that his condition falls squarely under the listing at 1.05(C). This listing requires that plaintiff suffer a "vertebrogenic disorder" with both pain, muscle spasms, and a significant limitation of motion, as well as "appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss." Achtenberg cites to the medical record to support his contention. Relying in part on the medical progress notes generated by Dr. Sabow, Achtenberg explains that these notes indicate that he is certainly suffering from a vertebrogenic disorder, with pain, muscle spasms, significant limitation of motion in the spine and that his forward bending motion is limited to about 80 degrees. Achtenberg also points to other medical records to illustrate his contention that he meets or equals an impairment listed under 1.05(C). In Miller v. Shalala, 8 F3d 611, 613 (8th Cir. 1993), the plaintiff argued that the ALJ erred when the ALJ did not analyze medical evidence that stated plaintiff could not carry five pounds, that she needed a splint to lift five pounds, and that she could not perform sedentary work. The Eighth Circuit stated: "In denying disability, the ALJ does not have to discuss every piece of evidence presented, but must develop the record fully and fairly." Id.; see also Walker v. Bowen, 834 F2d 635 (7th Cir. 1987) (ALJ not required "to discuss every piece of evidence, but only to articulate his rationale sufficiently to allow meaningful review").
[¶18] Although already discussed above, it bears repeating that this Court must uphold the Commissioner's determinations if they are supported by substantial evidence on the record as a whole. Spradling v. Chater,126 F3d 1072, 1073-74 (8th Cir. 1997). Further, it is not the proper role of this Court to reweigh the evidence, and even if this Court would have decided the case differently, it cannot reverse the decision when it is based upon substantial evidence. Harris v. Shalala, 45 F3d 1190, 1193 (8th Cir. 1995). Upon review of the medical evidence available in the record, the ALJ found that Achtenberg's impairments did not meet or equal the impairments listed in 1.05(C). Achtenberg proffered medical evidence to the contrary. However, what evidence to be believed and what weight to be given to that evidence is the prerogative of the ALJ as fact-finder, within broad limits. Onstad v. Shalala, 999 F2d 1232 (8th Cir. 1993); see also Mitchell v. Shalala, 25 F3d 712, 714 (8th Cir. 1994) (refusing to reverse the decision of the ALJ "simply because some evidence may support the opposite conclusion"). In Achtenberg's case, the ALJ placed great weight on the progress notes written by Dr. Teuber, Achtenberg's treating physician. A treating physician's opinion is to be given great weight when it is supported by medically acceptable clinical or diagnostic data, as is the case here. Woolf, 3 F3d at 1213; citing Matthews v. Bowen, 879 F2d 422, 424 (8th Cir. 1989). These notes, viewed in their entirety, do not support Achtenberg's assertion that his impairment falls under the impairment listed at 1.05(C). For Achtenberg to fall under the 1.05(C) listing he must have all of the symptoms of both 1 and 2.(fn7) Achtenberg's impairment, though severe, falls short of this mark. Dr. Teuber, in his November 11, 1995, examination, noted that Achtenberg suffered none of the requisite radiculopathy [a disease of the roots of the spinal nerves] and went on to write:
I have pointed out to Jeff that he has got to proceed with his life. It is a given that he is going to have some component of back discomfort and waxing and waning throughout his life. What he should do is manage this. . . He should return to the work force and seek another line of training and education. He should start dealing with his discomfort by way of proper exercise and over the counter medications and come to the realization that he is not going to be able to [do] labor intensive work such as UPS in the future because of this problem.
Tr. 299. Hence, the ALJ's finding that Achtenberg did not meet the 1.05(C) impairment is supported by substantial evidence in the record.
[¶19] B. Was the ALJ's Credibility Determination Supported by Substantial Evidence?
[¶20] Achtenberg also asserts that the ALJ's credibility determination is not supported by substantial evidence, and he attacks five of the ALJ's conclusions on this basis.(fn8) It is a well- settled principle, however, that if there are any inconsistencies in the evidence as a whole, an ALJ is permitted to disbelieve a plaintiff's subjective complaints. See, e.g., Cruse v. Bowen, 867 F2d 1183, 1186 (8th Cir. 1989); Conley v. Bowen, 781 F2d 143, 147, (8th Cir. 1986). Achtenberg states that his school attendance cannot be a basis for the ALJ's finding that Achtenberg's testimony regarding the severity of his pain is not credible. The Eighth Circuit has recognized that attending college is indicative of a finding that claimant had a residual functional capacity for at least the full range of light work. See Grace v. Sullivan, 901 F2d 660 (8th Cir. 1990). Moreover, while it is true that standing alone, one's school attendance cannot be a basis for an ALJ's credibility determination, a review of the record in its entirety can be. Achtenberg's attempt to pick and choose among the ALJ's reasons for finding that Achtenberg lacked credibility ignores the ALJ's careful consideration of the record as a whole. In this consideration, the ALJ identified specific pieces of contradictory and inconsistent medical evidence,(fn9) including medical progress notes showing minimal to no pain, and a good range of motion. Tr. 28-29. This Court is satisfied that the ALJ, while not mechanically reciting the Polaski factors,(fn10) carefully evaluated the evidence Achtenberg presented, and a review of the record as a whole indicates that substantial evidence supports his finding.
[¶21] The ALJ evaluated Achtenberg's daily activities and properly determined that they were inconsistent with his claims of severe and disabling pain. Benskin, 830 F2d at 882-83; see also Murphy, 953 F2d at 386. Achtenberg testified that he did help out at home, performing such duties as dusting, doing laundry and taking care of his children (including picking his 40-pound child up on a routine basis). This conclusion was further supported by Achtenberg's refusal to take any pain medication. Benskin, 830 F2d at 883. In Benskin, the court stated: "The measures she [plaintiff] undertook to relieve her pain, hot showers and doses of Advil and Aspirin, do not indicate that her pain was so severe as to be disabling." Id. It is worth noting that in Achtenberg's case, he refused all pain medication, including even over-the-counter medication. Although it is true that an individual need not prove he is bedridden or completely helpless to be found disabled, Thomas v. Sullivan, 876 F2d 666 (8th Cir. 1989), full time school attendance, extensive daily activities, and a refusal to use pain medication, combined with a vast amount of evidence in the medical record, do constitute substantial evidence for the ALJ's determination that Achtenberg did not suffer disabling pain to the extent alleged.
[¶22] Finally, Achtenberg urges that the ALJ's failure to specifically discuss the testimony of Joy Achtenberg and provide it with adequate weight was an error of law. Such a claim is without merit. Joy Achtenberg, as a lay witness, was not qualified to render an opinion as to her husband's capacity to work. Black v. Apfel, 143 F3d 383 (8th Cir. 1998). Rather, Joy Achtenberg's statements merely corroborated her husband's testimony regarding his subjective complaints. The ALJ, having properly discredited the subjective complaints of Achtenberg, as discussed above, was equally empowered to reject the cumulative testimony of Achtenberg's wife. Id.; see also Ostronski v. Chater, 94 F3d 413, 419 (8th Cir. 1996) (holding that the ALJ was not required to make credibility findings as to lay witness testimony that merely corroborated the testimony of the claimant, and was contrary to medical evidence on the record). Hence, the ALJ was not required to specifically address the testimony of Joy Achtenberg in his opinion. Therefore, this Court concludes that the ALJ's determination that Achtenberg was not disabled is supported by substantial evidence on the record as a whole.
[¶23] Based upon the foregoing discussion, it is hereby
[¶24] ORDERED that judgment shall be entered in favor of the defendant and against the plaintiff. Costs shall not be assessed.
1. According to Rauer, the position of automotive service technician has an incidence in the United States of approximately 159,000 jobs, with around 530 jobs in South Dakota. The position of bicycle assembly person has an incidence of 9,000 jobs nationally, and about 30 in South Dakota. Tr. 59.
2. Rauer stated that the position of private dispatcher had a national incidence of around 178,000, with approximately 650 positions present in South Dakota. With some erosion to bring it down to unskilled, Rauer estimated there may be about 430 positions in South Dakota. The position of information clerk has a national incidence of about 125,000, with approximately 400 jobs in South Dakota. The survey worker, or interviewer position, Rauer estimated, has an incidence of 360,000 jobs nationally, with 1,200 in South Dakota. Tr. 59.
3. 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).
4. Achtenberg contends that his impairment meets or equals an impairment listed in 1.05C:
Other vertebrogenic disorders (e.g., herniated nucleus pulposus, spinal stenosis) with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2:
- Pain, muscle spasm, and significant limitation of motion in the spine; and
- Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.
5. See footnote 3.
6. See footnote 4.
8. Specifically, Achtenberg questions the ALJ's credibility determination as it is based upon Achtenberg's school attendance, failure to use pain medication, his daily activities, the objective medical evidence in its entirety, and the ALJ's failure to expressly discuss the lay testimony of Achtenberg's wife, Joy Achtenberg.
9. The ALJ specifically, and in great detail, discussed no less than 11 separate medical entries from several doctors who had treated Achtenberg in arriving at his conclusion that Achtenberg's complaints of severe and disabling pain were not credible to the extent alleged. The ALJ examined the notes of Achtenberg's treating physicians and physical therapists before concluding that "the picture that emerges is that of an individual who has periodic flares of back pain but who is almost asymptomatic when he complies with home exercises." Tr. 30.
10. The factors to be used in an ALJ's determination of a claimant's credibility were outlined in the well-cited case of Polaski v. Heckler, 739 F2d 1320, 1322 (8th Cir. 1984) (subsequent history omitted):
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. Polaski, 739 F2d at 1322. This Court recognizes that it may not be error for an ALJ to fail to discuss all the factors in Polaski. The Eighth Circuit has held:
Although the ALJ did not explicitly discuss each Polaski factor in a methodical fashion, he acknowledged and considered those factors before discounting Brown's subjective complaints of pain. What we said in an earlier case is applicable here: "An arguable deficiency in opinion-writing technique is not a sufficient reason for setting aside an administrative finding where . . . the deficiency probably had no practical effect on the outcome of the case." Benskin, 830 F2d at 883.
Brown v. Chater, 87 F3d 963, 966 (8th Cir. 1996).