HAROLD T. CAIN,
KENNETH S. APFEL,
Commissioner of Social Security,
[1998 DSD 35]
United States District Court
District of South Dakota
MEMORANDUM OPINION AND ORDER
Filed Oct 28, 1998
Richard H. Battey, Chief Judge
I. PROCEDURAL HISTORY
[¶1] Pending before the Court are cross motions for summary judgment filed by plaintiff Harold T. Cain (Cain) and the defendant. On June 21, 1994, Cain applied for Title II disability insurance benefits and supplemental security income payments under Title XVI. Cain alleged November 2, 1992, as the onset date of disability. Cain's application was denied on August 4, 1994. He re-applied for benefits on December 20, 1994, and was denied through the reconsideration level.
[¶2] Cain subsequently requested a hearing before an Administrative Law Judge (ALJ). A hearing was held on September 5, 1996. On October 25, 1996, the ALJ issued her decision denying Cain's claim for benefits. The ALJ determined that Cain was not disabled according to the regulations. On March 6, 1998, the Appeals Council declined review of the ALJ's decision. On April 2, 1998, Cain commenced this action to review the Commissioner's final decision denying his claim.
[¶3] This Court has jurisdiction under 42 USC § 405(g) and 42 USC § 1383(c)(3).
[¶4] Cain was born on June 2, 1944, and is currently fifty-four years old. AR 40. He attended school through tenth grade and has obtained a GED. AR 46, 124. Between 1980 and the alleged date of onset in November 1992, Cain worked nineteen different jobs ranging from carpenter to cook. AR 805-842. Of those jobs fourteen of them involved carpentry work in the construction business. Id.
[¶5] Cain injured his back in a work-related accident in November 1992. AR 140. A CT scan revealed "very minimal central disc protrusion at L5-S1. Somewhat broader based disc bulge/herniation centrally and to the left at L4-5." AR 143. X-rays revealed anterior osteophytic spur formation involving L1 but there was "no evidence for an acute abnormality." AR 144. On December 5, 1992, an MRI of Cain's back revealed "desiccation of the discs" at the L2-3, L4-5, L5-S1 levels. AR 150. Also, there was "diffuse disc bulge" present at the L2-3 level and central disc bulge at the L4-5 level. Id. Cain underwent physical therapy three times a week following the injury. AR 149. On June 25, 1993, he was given an 11 percent permanent impairment rating by Dr. Steven K. GofF AR 155.
[¶6] Cain resumed work in June 1994 as a construction supervisor. AR 204. On August 3, 1994, while working, Cain fell about nineteen feet and was knocked unconscious. AR 231. The emergency room diagnosed him as suffering from concussion syndrome, sprained left foot, and generalized muscular sprain/strain particular paravertebral muscle mass. Id. X-rays revealed "marked narrowing C4-C5 intervertebral disc space" and "slight narrowing C5-C6 intervertebral disc space." AR 233. Since the fall, Cain has complained of chronic dizziness and seizures. AR 307, 895. Following this accident Cain returned to work but was placed on "light duty" which enabled him to avoid working with heavy equipment and tools. AR 864. In October 1994, Cain quit his job due to a heart ailment. He was hospitalized in November for coronary artery disease and unstable angina and underwent triple coronary bypass surgery. AR 254. He attempted to return to work as a custodian in 1995 but was unsuccessful due to his health limitations. AR 45.
[¶7] Cain also has some nonexertional impairment history. He was hospitalized at the psychiatric ward in 1985 where he was diagnosed with personality disorder with primarily narcissistic dependent features. AR 935. No record of treatment or medication for this condition exists following that episode. Cain testified that he has frequent seizures which incapacitate him. AR 64. He has also suffered a loss of memory since the fall. AR 66-67. Cain testified that he has become exceedingly hostile to others. AR 70.
[¶8] As for subjective complaints, Cain testified that since the fall he has headaches accompanied by dizziness four to six times a week. AR 48. The headaches render him unable to function and interrupt his sleep and his eating. Id. Cain encounters frequent neck pain which interrupts his sleep. Id. Shoulder pain is common since an accident in 1980. AR 49. Cain testified that the most pain he suffers emanates from his lower back due to the injury in 1992. AR 50-51. Cain also encounters pain in his knees. AR 53. To cope with the pain Cain takes 24 pills each day and often applies ice packs to the injured area. AR 55. Cain further testified that he has trouble breathing about five times a day and is often short of breath. AR 56. He also suffers from chest pains. AR 58
[¶9] Cain testified that he can sit without pain for an hour, sometimes two hours. AR 60. He cannot stand for extended periods of time. Id. He walks a half mile a day and plays pool with his friends if he is physically able. AR 60, 78. He often fishes for relaxation. AR 81. He testified that he recently picked up a 25-pound TV but encountered immediate back pain. AR 61. He infrequently attempts to lift things like groceries for fear of injury to his back. He also has trouble pushing, but not pulling, a vacuum cleaner, as well as problems reaching for things. AR 61-62. He cooks meals sometimes. He has withdrawn from many of his social activities and has lost most of his friends due to surliness. AR 72-73.
III. DECISION OF THE ALJ
[¶10] 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 Cain did not perform substantial gainful activity (SGA) from the date of onset in 1992 until June 1994, but did perform SGA between June 1994 through October 1994. AR 18, 23 (Finding #2). In short, the ALJ concluded that there was a five month period in 1994 in which Cain performed SGA.
[¶11] The ALJ concluded that Cain's back impairment was not severe as demonstrated by his ability to return to work in 1994. AR 19. The ALJ also concluded that Cain's nonexertional impairments, both the seizures and alleged mental impairments, were not severe as they did not intrude upon Cain's ability to work. Moreover, the ALJ noted that there was no treatment record for either of these alleged impairments. AR 19-21. The ALJ found that Cain's heart ailment did constitute a severe impairment. AR 20. However, at step three, the ALJ found that the heart impairment was not a listing impairment. AR 21.
[¶12] The ALJ concluded at step four that Cain was unable to perform previous relevant work prior to his date last insured due to coronary artery disease and degenerative disk disease. AR 21. The final step was for the ALJ to determine Cain's residual functional capacity (RFC).(fn2) The ALJ determined that Cain's subjective complaints were not entirely credible since he "had almost no treatment for his musculoskeletal problems in recent years and he is not taking strong prescriptive pain medication." AR 22. The ALJ also noted that Cain continued to engage in "a variety of sedentary and light household and recreational activities." Id. In the end, the ALJ concluded that the record did not "support the conclusion that [Cain] has pain or other symptoms sufficient to reduce his work capacity below the light level." AR 23. Having so concluded, the ALJ then relied upon the Medical-Vocational Guidelines (the grids), found at 20 C.FR. Part 404, Subpart P, Appendix 2, to determine that Cain was "not disabled." AR 22.
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, 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).
[¶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] Cain argues that the case should be remanded to consider new evidence of his medical condition. Plaintiff's Brief at 24-25. On a substantive level, Cain broadly argues that the ALJ's determination was not supported by substantial evidence. Id. at 5. More specifically, Cain is critical of the ALJ's decision for the following reasons: (1) finding that Cain engaged in substantial gainful activity from June through October 1994; (2) finding that Cain suffered from only one severe impairment; (3) finding that none of his impairments met the listing criteria; and (4) failing to undergo a proper Step Five analysis.
[¶16] A. New Evidence .
[¶17] Cain submits the following material as new evidence: (1) Black Hills Neurology records from November 16, 1992, to March 4, 1998; (2) records from Family Medical Center, Belle Fourche, South Dakota, from May 29, 1996, to May 28, 1997; (3) Heart Doctors records from August 18, 1997, to November 7, 1997; and (4) Rapid City Regional Hospital records from May 26, 1998. See Declaration of Plaintiff's Attorney Regarding New and Material Evidence. In order for "new evidence" to be considered by the Court it must be material and good cause must be shown why it was not presented to the Social Security Administration prior to its decision becoming final. Woolf v. Shalala, 3 F3d 1210, 1215 (8th Cir. 1993) (citing 42 USC § 405(g)). Moreover, "to be material, new evidence must be non-cumulative, relevant, and probative of the claimant's condition for the time period for which benefits were denied." Id. The Court does not reach the good cause element as it finds that the evidence, even if accepted, is immaterial as it is insubstantial, duplicative, and not pertinent to the relevant time period.
[¶18] The Black Hills Neurology records offer little additional insight into Cain's condition between 1992 and 1998. In fact, several portions undermine his arguments. For instance, on November 16, 1992, a CT scan "showed no abnormalities" and "no evidence of a herniated disc or focal neurologic deficit at this time." Black Hills Neurology records at 1. Cain apparently seizes upon Dr. Tschida's diagnosis of a seizure disorder. In actuality, Dr. Tschida diagnosed Cain with "[p]ossible partial complex seizures" on May 31, 1995. Id. at 3 (emphasis added). In the same report, Dr. Tschida notes that the seizure problem is improved with the use of Depakote and that Cain denies depression. Id. On August 29, 1995, Cain was doing "much better" and hadn't had "any episodes of altered consciousness of great significance." Id. at 4. Again the seizure problem had improved with the use of Depakote. Id. at 5. There is evidence in these records that Cain stated he was undergoing seizures but this evidence is already in the record via testimony and other medical evidence.
[¶19] The records from the Family Medical Center in Belle Fourche are similarly redundant. The most helpful diagnosis, as far as Cain is concerned, occurred on June 4, 1996, and indicated that Cain suffered from a "history of coronary artery disease." Family Medical Center records at 2. However, the ALJ found that Cain's heart ailment was severe and examined records of his triple bypass surgery. Much of the information in the Family Medical Center records undercuts Cain's argument of disability. On May 28, 1997, Dr. Jeffrey Anderson noted that Cain was not having pain at the current time. Id. at 3.
[¶20] Finally, the records from Rapid City Regional Hospital and Heart Doctors are not only inconclusive, but are also beyond the scope of the relevant time period. "To be considered material, the new evidence must be 'non-cumulative, relevant and probative of the claimant's condition of the time period for which benefits were denied.'" (emphasis added) Jones v. Callahan, 122 F3d 1148, 1154 (8th Cir. 1997) (citing Woolf, 3 F3d at 1215). The ALJ hearing related to the time period from alleged date of onset in 1992 up until the hearing in September 1996. The records from Rapid City Regional and Heart Doctors concern Cain's condition from August 1997, to May 1998. This information may assist Cain in a re-application for benefits but is not grounds for a remand. Jones, 122 F3d at 1154.
[¶21] B. Substantial Gainful Activity
[¶22] The ALJ determined that Cain engaged in substantial gainful activity from June through October 1994 and that Cain was thus not disabled during this period. AR 18. Cain argues that this period of SGA should be considered an unsuccessful work attempt. Plaintiff's Brief at 7. He concedes that he worked in a physically demanding capacity from June to August 3, 1994, when he fell nineteen feet and was seriously injured. Cain returned to work shortly after the fall but in a "light duty" capacity only. Id. at 6. Cain concludes that due to the duration of the job and the resulting injury this employment should be considered an unsuccessful work attempt. Id. at 7.
[¶23] 20 C.FR. § 404.1574(a)(1) states that "[g]enerally, if you worked for substantial earnings, this will show that you are able to do substantial gainful activity."(3) This section goes on to indicate that work which is stopped after a short while due to the impairment will be considered an unsuccessful work attempt. Cain argues that the June through October 1994 time period should be considered an unsuccessful work attempt because it was of short duration and was interrupted by his fall in August. The ALJ relied on the earnings during the period to establish that it demonstrated the ability of Cain to perform substantial gainful activity. This was a correct interpretation and application of the rule. That Cain earned over $7,000 in a five-month period demonstrated his ability to perform substantial gainful activity.
[¶24] Equally unavailing is Cain's assertion that after the fall his employment met the sheltered or special environment exception to substantial gainful activity found at 20 C.FR. § 404.1574(a)(3). Cain returned to work in a "light work" capacity after his fall. Simply because he was not handling heavy equipment and tools does not mean he was working in a sheltered or special environment. The rule contemplates programs such as a "sheltered workshop or similar facility" and such specifically tailored programs for those who are somewhat incapacitated. A mere shifting of responsibilities to less strenuous work does not meet this exception. Id. The Court finds that substantial evidence supports the ALJ's conclusion that Cain engaged in substantial gainful activity from June through October 1994.
[¶25] C. Severe Impairment
[¶26] The ALJ determined that only Cain's heart ailment was a severe impairment. AR 20. Cain takes issue with this and contends that several of his other maladies were severe as well. Plaintiff's Brief at 9-10. Cain lists several impairments in an attempt to distinguish the ALJ's analysis; however, the most significant impairments involved his back and alleged seizure disorder. In that regard, the ALJ's decision is supported by substantial evidence.
[¶27] Cain injured his back while carrying a door in early November 1992. Following an examination and x-rays, Dr. Simmons noted that there was some "mild" disc bulging and prescribed bed rest with gradual increase of activity. AR 138. Dr. Iverson noted that Cain appeared to be in excruciating pain but that his reflexes and motor strength were "normal in his lower extremity." AR 139. A CT scan revealed "[v]ery minimal central disc protrusion at L5-S1. Somewhat broader based disc bulge/herniation centrally and to the left at L4-5." AR 143. Upon examining Cain and his x-rays, Dr. Nesbit, a radiologist, noted "[n]o evidence for an acute abnormality." AR 144. In January 1993, an MRI revealed "no evidence of herniated disc." AR 148. On March 30, 1993, Dr. Goff noted no "frank herniations" and no "radicular symptoms." AR 158. Dr. Goff recommended a conservative treatment plan including physical therapy. Id. In June 1993, Dr. Goff noted that Cain had an 11 percent permanent partial impairment. Moreover, the record reveals no ongoing treatment or medication for his back pain once he terminated physical therapy in 1993. Finally, as discussed previously, Cain returned to strenuous work in 1994, further evidence that his back injury was not severe. Piepgras v. Chater, 76 F3d 233, 236 (8th Cir. 1996).
[¶28] Cain also complained of seizures and dizziness following his fall in August 1994. The ALJ found that these complaints were not sufficiently supported by medical evidence to be considered severe. AR 20. The record demonstrates no definitive diagnosis of complex partial seizures. On March 11, 1995, Dr. Robert Finley noted "possible complex partial seizures." AR 296. An EEG and examination were unremarkable and he was discharged with instructions to limit activity over the weekend. AR 296-97. During the same time period, Dr. Tschida, a neurologist, also indicated possible complex seizure as the reason for Cain's problems. AR 300. All the tests done on Cain were unremarkable. AR 302-05. Finally, Dr. Tschida allowed Cain to return to work as long as it didn't involve the operation of heavy equipment. AR 307. This environmental restriction does not support a finding that Cain's seizures are severe. SSR 85-15 ("A person with a seizure disorder who is restricted only from being on unprotected elevations and near dangerous moving machinery is an example of someone whose environmental restriction does not have a significant effect on work that exists at all exertional levels").
[¶29] The medical evidence thus supports the ALJ's conclusion that only Cain's heart impairment was severe. In essence, Cain's objections are to the ALJ's findings that Cain's subjective complaints were not entirely credible. A lack of objective medical evidence is one factor the ALJ considered in evaluating the credibility of Cain's subjective complaints. AR 22; see Black v. Apfel, 143 F3d 383, 386 (8th Cir. 1998). The ALJ also examined Cain's daily activities, the extent of the pain, medication used, and Cain's functional restrictions, all in accordance with Polaski v. Heckler, 739 F2d 1320 (8th Cir. 1984). AR 22-23. The ALJ's findings that Cain's subjective complaints were not entirely credible and that only the heart ailment was severe are well supported by evidence and not grounds for a remand.
[¶30] D. Listing Impairments
[¶31] The ALJ determined at step three that none of Cain's impairments met the listing requirements. AR 21. Cain contends that his back pain, seizure disorder, and coronary artery disease met the listing requirements. Plaintiff's Brief at 17-18. "For a claimant to show that [his] impairment matches a listing, it must meet all of the specified criteria." Marciniak v. Shalala, 49 F3d 1350, 1353 (8th Cir. 1995) (quoting Sullivan v. Zebley, 493 U.S. 521, 530, 110 S. Ct. 885, 91, 107 L. Ed. 2d 967 (1990)). A claimant must also present medical findings "equal in severity to all the criteria for the one most similar listed impairment." Zebley, 493 U.S. at 531, 110 S. Ct. at 891. The medical record does not support a finding that Cain met the listing requirements. 20 C.FR. Part 404, Subpart P., App. 1 § 1.05 concerns disorders of the spine. Cain apparently tries to fit his back problems into this listing under § 1.05(c) Other vertebrogenic disorders; however, there was no diagnosis of motor loss, reflex loss, sensory loss, or muscle weakness in the record as is required by the listing.
[¶32] Cain also fails to meet the criteria for showing a listing impairment for his seizure disorder. See 20 C.FR. Part 404, Subpt. P, App. 1 § 11.00(A). For convulsive disorders, "[A]t least one detailed description of a typical seizure is required. Such description includes the presence or absence of aura, tongue bites, sphincter control, injuries associated with the attack, and postictal phenomena," none of which exists in the medical record. Id. The listing impairment for epilepsy requires substantiation through EEG records. 20 C.FR. Part 404, Subpt. P, App. 1 § 11.02 and 11.03. As mentioned above, the EEG taken by Dr. Finley on March 9, 1995, was unremarkable. AR 298.
[¶33] Finally, the encouraging diagnosis of Cain after his triple bypass by Dr. Teixeira prevents a finding that his coronary artery disease met the listing criteria found at 20 C.FR. Part 404, Subpt. P, App. 1 § 4.404(C). Following the bypass surgery Dr. Teixeira noted that Cain had a "new lease on life" and that the bypasses had worked well. AR 272. In fact, he was allowed to return to work just months after the surgery. Id.
[¶34] E. Step Five Analysis
[¶35] Finally, Cain argues that the ALJ erred by finding that he had the residual functional capacity to perform a full range of light work. Plaintiff's Brief at 19-20. At step five, the Commissioner bears the burden of showing that significant jobs exist in the national economy which the claimant can perform. Foreman v. Callahan, 122 F3d 24, 25 (8th Cir. 1997). This burden can be satisfied by use of the grids. Id. Where there is evidence of nonexertional impairments, such as a mental condition or pain, which would significantly impact claimant's ability to perform work-related activities the grids cannot be the sole means of establishing RFC. Id. However, "an ALJ may use [the grids] even though there is a nonexertional impairment if the ALJ finds, and the record supports the finding, that the nonexertional impairment does not diminish the claimant's residual functional capacity to perform the full range of activities listed in [the grids]." Lucy v. Chater, 113 F3d 905, 908 (8th Cir. 1997) (quoting Thompson v. Bowen, 850 F2d 346, 349-50 (8th Cir. 1988)).
[¶36] The ALJ determined that Cain's alleged mental impairments did not significantly reduce his ability to perform work related activities. AR 21. The ALJ noted that Cain was hospitalized overnight in 1985 for an emotional disturbance but that there was no record of treatment or medication since that time. The ALJ further noted that Cain testified he had never lost a job due to personality conflicts with fellow employees. Id. Accordingly, the ALJ found that his alleged mental impairments did not restrict his ability to perform work- related activities.
[¶37] Pain is also considered a nonexertional impairment. Beckley v. Apfel, 1998 WL 541585, *3 (8th Cir.). The ALJ determined that Cain's subjective complaints of pain were not substantiated by the evidence. AR 22. In reaching this credibility determination the ALJ considered the medical evidence, Cain's work-related activity since the alleged onset date, his testimony, and treatment and medication records. AR. 22-23. The evidence supports the ALJ's findings. First, the medical evidence does not support Cain's assertion of debilitating pain emanating from his back. Dr. Goff noted on March 30, 1993, that there were no herniations and no radicular symptoms. AR 158. Likewise with his heart condition, Cain was given a "new lease on life" following triple bypass. AR 272 Second, Cain returned to work following his back injury which indicates that his pain did not interfere with his abilities to work. Third, after 1993 Cain failed to engage in any physical therapy for his back. Finally, Cain continued to fish, play pool with friends, and lift some heavy objects following his back injury. Cain may have experienced pain but it was not so severe that he could not perform work-related activities.
[¶38] Finally, the ALJ, in an abundance of caution, heard the testimony of a vocational expert at the hearing. AR 86-92. With the benefit of this testimony and the record as a whole, the ALJ determined that Cain's subjective complaints of pain and mental impairments were not entirely credible. Since the ALJ concluded that the evidence did not support a finding that Cain's nonexertional impairments significantly influenced his ability to perform a full range of light work, reliance on the grids was proper. Turning then to the grids, the ALJ noted that Cain was 52 years old an "closely approaching advanced age" at the time of the hearing. AR 21-22. Cain has a high school education and some skilled work experience. The ALJ concluded that Cain, at the time of the hearing, met all the criteria of 20 C.FR. Part 404, Subpt. P, App. 2, Rule 202.14. and thus was "not disabled." AR 22.
[¶39] Harold Cain is a 54 year old individual seeking social security disability benefits. Cain alleged an onset date of November 2, 1992, and complained of several impairments, the most significant of which concerned his back and coronary artery disease. The Commissioner determined that Cain was not disabled according to social security regulations. Cain filed a complaint in this Court arguing that the ALJ had erred at every step of the process and asking that the case be remanded to consider new evidence.
[¶40] The Court determines that the new evidence was neither material nor pertinent to the time period in question. The Court also finds that the ALJ's findings were supported by substantial evidence. Specifically, the Court finds that: Cain did engage in substantial gainful activity after the date of onset when he returned to work in June 1994; Cain's only severe impairment was coronary artery disease; none of his impairments met were listing level impairments; and the ALJ properly relied upon the Medical-Vocational Guidelines to conclude that Cain was "not disabled."
[¶41] Accordingly, it is hereby
[¶42] ORDERED that Cain's motion for summary judgment (Docket #16) is denied.
[¶43] IT IS FURTHER ORDERED that the Commissioner's motion for summary judgment (Docket #20) is granted. Judgment shall be in favor of defendant and against plaintifF Plaintiff's complaint shall be dismissed with prejudice.
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 C.FR. §§ 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).
2. A claimant's RFC is based upon the medical evidence, as well as his testimony and credibility. It is used to determine the particular type of work claimant may be able to perform despite a severe impairment. See 20 C.FR. § 404.1545.
3. If earnings averaged more than $500 per month they are considered substantial. 20 C.FR. § 404.1574(b)(2)(vii). In this case Cain earned over $7,000 in a five-month period for an average well in excess of $500 per month. AR 202.