KENNETH S. APFEL
Commissioner of Social Security,
[1998 DSD 42]
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
MEMORANDUM OPINION AND ORDER
Filed Dec 1998.
Richard H. Battey, Chief Judge
I. PROCEDURAL HISTORY
[¶1] Pending before the Court are cross motions for summary judgment filed by plaintiff Angela Eich (Eich) and the defendant. On April 17, 1995, Eich applied for Title II disability insurance benefits and on May 2, 1995, she filed an application for supplemental security income under Title XVI. For both applications Eich alleged a disability onset date of September 18, 1994. Her applications were considered together and were denied initially and at the reconsideration level. Eich subsequently requested a hearing before an Administrative Law Judge (ALJ). A hearing was held on January 16, 1997. On February 28, 1997, the ALJ issued a decision denying Eich's claims. The ALJ determined that Eich was not disabled according to Social Security regulations. On April 29, 1998, the Appeals Council declined to review the ALJ's decision. On June 22, 1998, Eich commenced this action to review the Commissioner's final decision denying her claim.
[¶2] This Court has jurisdiction under 42 USC § 405(g) and 42 USC § 1383(c)(3).
[¶3] Eich was born on March 13, 1972, and is currently twenty-six years old. AR 94. She has one child, is not married, but has lived with her boyfriend for several years. AR 57. She graduated from high school in 1990 and has no further educational experience. She contends that her disability is both physical and emotional or a combination thereof. Plaintiff's Brief in Support of Motion for Summary Judgment (Plaintiff's Brief) at 3.
[¶4] Eich visited the emergency room of Rapid City Regional Hospital on September 18, 1994, complaining of an upset stomach, abdominal pain, and diarrhea. AR 194. The emergency room physician, Dr. Rob Bathurst, diagnosed her with gastroenteritis and sent her home with an instruction sheet. Id. Between September 18, 1994, and January 1995, Eich returned to the emergency room five additional times, each time complaining of abdominal pain and vomiting. AR 197-210. She was diagnosed with a urinary tract infection (AR 197) and peptic ulcer disease (AR 205, 210). She was given various prescriptive drugs to ease the nausea and the pain. On March 9, 1995, Dr. Terry Hinkson diagnosed Eich as suffering from irritable bowel syndrome. AR 212.
[¶5] Also during this time, Eich was seen by doctors at the Rapid City Community Health Center. AR 233-47. These reports include a diagnosis of bacterial vaginosis (AR 233); peptic ulcer syndrome (AR 242); probable duodenal ulcer (AR 240); and bowel disease (AR 247). Notes from her visits to the clinic indicate that Eich's symptoms did improve for several weeks. AR 236, 237, 238.
[¶6] Eich testified that from September 1994, to January 1995, she was vomiting several times every day but her medication has now reduced that to three days per month. AR 56. In a typical month she has about twenty "bad days" in which she has to limit her physical activity to avoid vomiting. AR 75-76. On those days she remains immobile in a recliner chair. Id.
[¶7] Eich testified that her psychological illness first manifest itself in eighth grade when she could no longer stand to go to school. AR 35, 276. She was home schooled from eighth through eleventh grade. AR 35. She attempted to attend school on various occasions but was exceedingly uncomfortable and felt that she was being talked about behind her back. AR 36, 267. Eich's family relocated to Watertown, South Dakota, before her junior year in high school. She was examined by the school district's psychologist, Dr. Mark Hedges, to determine if she should continue in a home schooling environment. AR 274-281. Dr. Hedges concluded that she should continue in the program. AR 280. He also found that Eich exhibited some signs of an "emerging maladapted personality pattern and thus, can be classified as a severe behavior disorder." Id. Prior to her senior year in high school Eich's family moved to Kearney, Nebraska, where she was able to attend the public high school. AR 36, 267. She graduated from high school in 1990.
[¶8] Eich also was examined by Dr. Donald Burnap on October 25, 1995, to determine her eligibility for disability benefits. AR 266. After interviewing Eich, Dr. Burnap concluded that she suffered from major depressive disorder, dependent personality disorder, and probable bonafide physical disorder. AR 270. In his opinion, "it would be realistically impossible for [Eich] to maintain gainful employment." Id. He also mentioned that Eich's physical problems could be psychosomatic. AR 269. Finally, Dr. Burnap recommended that she be given disability benefits. Id.
[¶9] Eich has held many jobs since graduating from high school in 1990. She was employed the summer after graduation as a housekeeper at an inn in Jackson Hole, Wyoming. AR 47. She returned to Rapid City and began working at Long John Silvers for three or four months as a cashier and waitress. AR 43. After injuring her ankle she decided not to return to work there. Id. Eich next worked at TCBY for two months before she quit because of the pressure. AR 42. She was employed as an apartment complex housekeeper for a year beginning in 1993. AR 39. This job ended when she became pregnant and could no longer perform some of her duties. AR 49. Eich provided daycare for her sister's child from April 1995 to June 1996. AR 52. Finally, she was employed as a babysitter for Cara Riker from February 1995 to August 1996. AR 319.
[¶10] In the past Eich cared for her son with the assistance of her mother, her sister, and her boyfriend. AR 57. However, at the time of the hearing she had been caring for him primarily by herself. AR 61-62. In addition to caring for her son, Eich testified that she shops, cleans, drives by herself, and occasionally socializes with her boyfriend and his friends with little difficulty. AR 59-61, 70.
III. 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 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.
[¶13] In support of her motion for summary judgment, Eich contends the ALJ erred in the following two ways: (1) failure to assess her credibility in accordance with Eighth Circuit standards, and (2) improperly rejecting the opinion of the consulting psychiatrist, Dr. Burnap. Plaintiff's Brief at 9, 16. Each argument will be addressed seriatim.
[¶14] Eich argues that the ALJ did not properly discount her subjective complaints in accordance with Polaski v. Heckler, 739 F2d 1320 (8th Cir. 1984). This oft-cited opinion laid the groundwork for analyzing subjective complaints. The court in Polaski noted that when considering subjective complaints the entire record must be examined. Id. at 1322. Specifically, the court outlined the following five factors to be analyzed:
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.
Id. Eich contends that the ALJ did not consider all of these factors in concluding that her complaints were not credible. Plaintiff's Brief at 12. The Court disagrees.
[¶15] Careful examination of the ALJ's decision indicates that he scrupulously examined the record as a whole including analysis of the five Polaski factors. First, the ALJ noted that Eich engages in a wide range of daily activity and has very few physical restrictions. AR 14. He mentioned her ability to grocery shop, care for her child, and socialize with her boyfriend and his friends. Id. Eich testified that she goes to the mall and other stores on her own and drives on her own. AR 60-61. Second, the ALJ closely examined the medical records as well as Eich's testimony concerning the duration, frequency, and intensity of the pain. He noted that pain does not stop Eich from sleeping, that several times during the period in question she noted no pain or that it had significantly diminished. AR 15-16. The ALJ also mentioned several other reports from physicians in which her symptoms had improved including reduced bloating and vomiting. AR 16. Third, the ALJ considered what precipitated Eich's nausea and pain, such as intake of food at various times of the day. AR15-16. Fourth, the ALJ contemplated the medication Eich was taking and the attendant results. He noted that the record indicates that her medication helps her sleep and prevents or reduces nausea. AR 14, 15, 16. Finally, the ALJ observed that Eich had few physical restrictions. She can lift 25 pounds frequently and 50 pounds occasionally and has few limitation on her ability to sit, stand, or walk. AR 18.
[¶16] Clearly, the ALJ considered all the specific factors outlined in Polaski. He examined the medical evidence from Eich's many trips to the emergency room as well as her visits to the Rapid City Community Health Center. The ALJ also closely reviewed Eich's testimony and the testimony of her mother. His conclusion that Eich's testimony was not fully credible as it pertained to subjective complaints is supported by substantial evidence.
[¶17] Eich's second basis for summary judgment is the ALJ's diminishment of Dr. Burnap's opinion of Eich's condition. Plaintiff's Brief at 16. Dr. Burnap remarked in his report that it would be impossible for Eich to obtain gainful employment. AR 270. The ALJ accorded this opinion little weight because it was not consistent with Dr. Burnap's own findings, was not supported by the medical evidence from Eich's treating physicians, and was conclusory in nature. AR 17.
[¶18] In his report Dr. Burnap notes that Eich's memory is intact, she is of average intelligence, has "good capacity for both concrete and abstract reasoning," was not anxious, was alert, and was well adjusted. AR 268-69. He does mention that her motor skills were less than average and that her overall mood was markedly depressed. Id. From these findings he concludes that she is totally unable to work. Eich visited Dr. Burnap on only one occasion. In contrast is the substantial medical records of her visits to physicians at Rapid City Regional Hospital and Rapid City Community Health Center. These records reveal scant evidence of any mental or psychological problems. From October 11, 1994, to September 19, 1995, Eich visited the Health Center 18 times. AR 233-265. There is no mention in these records of any emotional problems. Likewise, from September 18, 1994, to May 12, 1995, Eich was examined in the emergency room 10 times with no mention of emotional disturbances or abnormalities. AR 194-220.
[¶19] As for Dr. Burnap's conclusion that Eich be given disability benefits, the ALJ correctly attributed it little controlling weight. Barrett v. Shalala, 38 F3d 1019, 1023 (8th Cir. 1994) (noting that conclusory statements as to disability made by a physician need not be given special deference).
[¶20] In summary, the ALJ's findings concerning Eich's disability status is supported by substantial evidence. Although Eich appears to suffer from irritable bowel syndrome, it does not limit her in a significant way. Her testimony concerning the severity of pain and discomfort was not credible under the Polaski analysis. Dr. Burnap's opinion that Eich was emotionally disabled and that she should be given disability benefits was properly downplayed by the ALJ. The medical evidence, Eich's testimony, and Dr. Burnap's own report does not support such a conclusion.
[¶21] Accordingly, it is hereby
[¶22] ORDERED the Eich's motion for summary judgment (Docket #14) is denied.
[¶23] IT IS FURTHER ORDERED that the Commissioner's motion for summary judgment (Docket #19) is granted. Judgment shall be issued in favor of defendant and against plaintiff. Plaintiff's complaint shall be dismissed.