DWIGHT L. HOLZ,
KENNETH S. APFEL,
Commissioner of Social Security,
[1998 DSD 29]
United States District Court
District of South Dakota
MEMORANDUM OPINION AND ORDER
Filed Sep 10, 1998
Richard H. Battey, Chief Judge
I. PROCEDURAL HISTORY
[¶1] On June 4, 1993, plaintiff Dwight L. Holz (Holz) filed an application for disability benefits under Title II of the Social Security Act (the Act), 42 USC §§ 401-33 in which he alleged an onset date of December 13, 1992. His application was denied through the reconsideration stage and by an Administrative Law Judge (ALJ). Plaintiff appealed the decision of the ALJ to this Court. On February 23, 1996, this Court issued an order remanding the case back to the administration for further consideration of plaintiff's nonexertional impairments.
[¶2] While this case was pending Holz filed another application for disability benefits on September 18, 1995, and an application for Supplemental Security Income (SSI) under Title XVI on September 8, 1995. The remand and the new applications were combined into one hearing in front of an ALJ held on February 7, 1997. The ALJ granted benefits to plaintiff beginning on February 27, 1995, his fiftieth birthday. Holz appealed, alleging an onset date of December 13, 1992. The Appeals Council declined review of the ALJ's decision and Holz filed a complaint in this Court. Currently pending are cross-motions for summary judgment.
[¶3] Holz was born on February 27, 1945, and was 51 years old at the time of the second hearing. He attended school through the sixth grade and has not attained a GED. AR 38. Holz is married and has three sons. AR 38.
[¶4] Holz worked as a heavy equipment operator for various construction firms from 1979 to 1992. AR 379. On December 13, 1992, Holz injured his back laying pipe and has not worked since. AR 49.
[¶5] Following an MRI, Holz was diagnosed with "degenerative narrowing of the L5-S1 disc" in January 1993. AR 436. He also had some disc herniation as well. This diagnosis was unchanged after examination by Dr. William Zavitz on January 19, 1995. AR 471. On April 25, 1994, Dr. Scott Cherry made a passing reference to mild depression. AR 462. Dr. Cherry noted that "[t]here is also an indication that Mr. Holz may be experiencing a mild to moderate degree of depression, not recognizing his current feelings or emotions as a depressive state." Id. Dr. Lynn Meiners, Holz's vocational expert, underwent a vocational assessment involving examination of Holz's prior work experience, medical records, and various cognitive and spatial tests. AR. 253 -258. Dr. Meiners' opined that Holz is unable to return to his former work and is not a good candidate for retraining. AR 258. As for his nonexertional impairments, Dr. Meiners indicated that Holz is unlikely to be successful in jobs which require "reading, math, spelling, problem solving or logical reasoning skills." AR 257. Furthermore, she noted that Holz is "experiencing depression and guardedness related to his injury." Id.
[¶6] Holz testified that he suffers from constant pain in his lower back which interrupts his sleeping and prevents him from engaging in any meaningful activity. AR 40-41. Bending over, sitting or standing too long, and climbing stairs causes discomfort. AR 41, 45, 48. He indicated that he takes prescribed medication when he can afford it and otherwise takes Tylenol or other over-the-counter drugs to relieve his pain. Id. At times his pain is so severe that he cannot get out of bed or get up from a chair. AR 42-43, 45. He used to help out around the house but even this has diminished since 1996. AR 44. Holz testified that he generally lays around the house watching TV and occasionally assists in housekeeping chores. AR 48. He has difficulty reading at times due to the pain and doesn't write very well. AR 49.
[¶7] Nancy Holz, plaintiff's wife, testified that Holz is no longer able to do many of things he did before the injury such as golfing, walking, and scouting. AR 52. She indicated that her husband visibly shows the pain and that his mental attitude has become quite negative since the injury. AR 53-54.
III. DECISION BY THE ALJ
[¶8] 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 Holz has not performed any substantial gainful activity (SGA) since December 13, 1992, the date of disability onset. AR 18. In step two, the ALJ, referencing the first hearing in front of an ALJ, found that the back ailments alleged by Holz were "severe" as that term is defined by the Act. Id. The ALJ also concluded, at step three, that the severe medical impairment from which Holz suffers did not fit within one of the listed severe impairments in Appendix 1 to Subpart P of Part 404, 20 CFR §§ 404.1501 et seq. (1996).
[¶9] At the fourth step the ALJ considered whether Holz could perform past work or other work within the national economy. In reaching her conclusion, the ALJ concluded that Holz's testimony as to his subjective complaints and his limitations was not an accurate indication of his condition prior to February 27, 1995. AR 20-21; AR 23 (Finding #4). In assessing credibility, the ALJ considered the medical evidence contained in the record, plaintiff's own testimony concerning the degree and duration of his limitations, and evidence of Holz's daily activity. The ALJ found that Holz's testimony did not correspond to the medical evidence. As for the mental impairment, the ALJ noted a dearth of medical evidence supporting such a claim. AR 21. The ALJ noted that while Dr. Cherry mentioned depression, he did not formally diagnose Holz with depression and recommended no treatment. AR 21. The ALJ found that Dr. Meiners' assessment of Holz as unable to return to work was based primarily on his physical, not mental, condition. Id. The ALJ determined that since Holz was not diagnosed with a mental impairment and no doctor recommended treatment for it that his subjective complaints were less than credible. AR 21. Finally, the ALJ used the testimony of a vocational expert, Robert Peregrine, to conclude that Holz could not perform past relevant work but could perform a full range of unskilled sedentary work since December 13, 1992. AR 22.
[¶10] As a consequence, at step five, the ALJ utilized the Medical-Vocational Guidelines (the Grid) to factor in Holz's age, education, and past work experience. The ALJ concluded that Holz, prior to reaching the age of fifty, was not disabled according to the Grid because significant jobs existed in the local and national economy which he could perform. However, once Holz turned fifty on February 27, 1995, he was no longer qualified for many of those positions and thus was "disabled" according to the Act. AR 23.
IV. STANDARD OF REVIEW
[¶11] 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, 149 F3d 893 (8th Cir. 1998) (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).
[¶12] However, the Court's role 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.
[¶13] Holz does not contest the ALJ's determination that he is disabled; instead he argues the ALJ's finding that he became disabled on February 27,1995, is in error. Holz contends that he should have been found disabled since December 13, 1992, the alleged date of onset. Holz attacks the ALJ's decision for two reasons: (1) it did not adequately address Holz's subjective complaints of pain, and (2) it did not address his mental impairments as required by this Court's opinion of February 23, 1996. Plaintiff's Brief at 5-12. Each argument will be addressed in turn.
[¶14] A. Subjective complaints of pain
[¶15] Holz takes issue with the ALJ's determination that his complaints of pain and limitations were not credible. The Court disagrees. It is apparent from the ALJ's decision that she considered all the evidence in concluding that Holz's testimony was not entirely credible as it related to his ability to perform less strenuous work prior to his fiftieth birthday. AR 20; AR 23 (Finding 4). The ALJ considered the activities in which Holz has participated since his alleged onset date, activities such as chopping wood, lifting twenty-pound items, and pushing an automobile off the road. AR 20. Additionally, the ALJ noted that Holz has at times not been compliant with the instructions of various doctors. Id. Finally, the ALJ recognized the inconsistency between Holz's testimony and the medical record. AR 20.
[¶16] The ALJ's decision is also supported by testimony during the hearing on February 7, 1997. It appears from Holz's own testimony that his pain and limitations have increased since his alleged onset date. For instance, Holz indicated that he "used to help a lot around the house. I'd try to. But lately, I've been -- the last year or so here, I just -- I try not to do much at all because anytime I do anything, it flares up." AR 43. He also indicated that his difficulty with standing and sitting have become problematic recently. AR 45. Nancy Holz testified that "lately" Holz has let her drive the car. AR 54. She also indicated that since the alleged onset in 1992 his limitations have increased. This testimony combined with the evidence recited above supports the ALJ's determination that Holz became disabled in February 1995, a year prior to the hearing.
[¶17] B. Nonexertional impairments
[¶18] Holz also contends that the ALJ's use of the Grid was improper. He argues that this Court's opinion remanding the case required the use of a vocational expert to assess the availability of jobs which Holz could perform in the regional and national economies. He further argues that since there were nonexertional impairments, use of the Grid was inappropriate. Plaintiff's Brief at 5-7. Holz is correct in arguing that the Court indicated that a vocational expert must be consulted and is also correct that where there is a nonexertional impairment use of the Grid is not warranted. Simons v. Sullivan, 915 F2d 1223, 1224 (8th Cir. 1990). However, examination of the ALJ's decision reveals that the ALJ did abide by the mandate of this Court and that use of the Grid was not improper since she concluded there were no significant mental impairments present.
[¶19] In its order of February 23, 1996, the Court instructed that upon remand the administration either call its own vocational expert or rely on the vocational expert testimony proffered by Holz. AR 534. The ALJ did both. At the hearing Robert Peregrine (Peregrine) testified as a vocational expert as to the types of jobs Holz could perform. AR 55-58. Peregrine indicated that Holz possessed skills which could be transferred to a light exertional category. AR 57-58. The ALJ also relied upon Dr. Lynn Meiners' report in concluding that Holz suffered from no significant mental impairments. AR 21. The ALJ concluded that Dr. Meiners' conclusion that Holz could not perform his former jobs was based upon physical, not mental, impairments. Id. Moreover, the fact that Holz performed his past employment for over ten years when he allegedly suffered from the same mental impairments, namely low IQ and poor educational background, supports the ALJ's decision. Also, there was no evidence that any physician recommended treatment or medication for the depression from which Holz suffered. There being little to no evidence of a mental impairment, the ALJ was justified in referring to the Grid at step five.
[¶20] Accordingly, it is hereby
[¶21] ORDERED that Holz's motion for summary judgment (Docket #10) is denied.
[¶22] IT IS FURTHER ORDERED that the Commissioner's motion for summary judgment (Docket #13) is granted. Judgment shall be issued in favor of defendant and against plaintiff. Plaintiff's complaint shall be dismissed.
1. The steps are summarized as follows:
(1) First, a determination is made whether claimant is currently engaged in substantial gainful activity; if so, he must be found not disabled.
(2) If claimant is not engaged in substantial gainful activity, the next question is whether he is suffering from a severe impairment, defined as one that significantly limits the ability to perform basic work-related functions. If a severe impairment is not found, claimant must be found not disabled.
(3) If there is a severe impairment, and it is one listed in Appendix 1 to Subpart P, claimant is found disabled on the medical evidence alone. [ See Appendix 1 to Subpart P of Part 404, 20 CFR §§ 404.1501 et seq. (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).