KENNETH S. APFEL
Commissioner of Social Security,
[1998 DSD 44]
United States District Court
District of South Dakota
MEMORANDUM OPINION AND ORDER
Filed Dec 29, 1998
Richard H. Battey, Chief Judge
[¶1] Pending before the Court are cross motions for summary judgment filed by plaintiff Albert Rankin (Rankin) and the defendant. On October 20, 1995, Rankin applied for Title II disability insurance benefits and supplemental security income payments under Title XVI. Rankin alleged January 13, 1994, as the onset date of disability. Rankin's application was denied through the reconsideration level.
[¶2] Rankin subsequently requested a hearing before an Administrative Law Judge (ALJ). A hearing was held on April 8, 1997. On June 2, 1997, the ALJ issued her decision granting Rankin's application in part. The ALJ determined that Rankin was disabled according to the regulations between January 13, 1994, and April 3, 1996, at which time he achieved medical improvement and was no longer disabled according to the regulations. On June 6, 1998, the Appeals Council declined review of the ALJ's decision. On August 4, 1998, Rankin commenced this action to review the Commissioner's final decision.
[¶3] This Court has jurisdiction under 42 USC § 405(g) and 42 USC § 1383(c)(3).
[¶4] Rankin was born on February 1, 1961, is currently thirty-seven years old, and is married. AR 51. He has obtained a GED and attended vocational school for a year and a half. AR 53. Rankin worked as a ranch hand from April 1979 to March 1981, as an oil field laborer from March 1981 to July 1983, and as a water truck driver from August 1983 to January 1994. AR 250.
[¶5] Rankin injured his back in a work-related accident in March 1991. An MRI in September 1992, revealed a herniated disc at C6-7. AR 151, 264. He continued to work as a water truck driver until January 1994, when he was fired because he failed a commercial driver's license test. AR 52-54, 136. He has not returned to work since.
[¶6] After the injury in 1991 Rankin experienced pain and decreased movement episodically. AR 137-173. These periods were interrupted by stretches where he retained full range of movement and diminished pain. Id. Rankin has substantially maintained his strength and dexterity throughout. AR 155, 391. Rankin received pain relief from stretching exercises and physical therapy as well as medication. AR 146, 150, 167. In May 1994, Ranking was diagnosed as having only slightly limited range of motion in the shoulder and neck and had reached maximum medical improvement. AR 166. Dr. Steven Goff, his treating physician, gave Rankin a 10 percent permanent partial impairment rating in June 1994. AR 135. In August of 1995, and again in December 1996, Dr. Goff indicated that Rankin was not capable of returning to work. AR 341, 310. This opinion was also expressed by Dr. Sabow, who also diagnosed Rankin as suffering from post-traumatic fibromyalgia. AR 262-264. However, a physical therapy assessment on April 3, 1996, indicated that Rankin had the ability to work an eight-hour day at the sedentary, light, and possibly modified medium levels. AR 392.
[¶7] As for subjective complaints, Rankin quantified his pain as a 6 or 7 on a scale from 1 to 10. AR 55. The pain increases when he engages in physical activity. Id. To relieve the pain he takes over-the-counter medication as well as prescription medication and gets a massage. Id. He also has had considerable relief from stretching, the use of heating pads, and physical therapy.
[¶8] Rankin testified that he can sit or stand without the pain increasing for 20 to 30 minutes. AR 60. He can walk about a half a block before the pain starts to increase. Id. He attended vocational school for 1½ years during 1995-96 but withdrew due to his physical limitations. AR 62. Around the house Rankin vacuums, barbecues on the grill, feeds hay to the horses, plays cards with the kids, and attends church. AR 63-70. He also testified that he can lift 25 pounds and can drive three hours without stopping. AR 68-70.
DECISION OF THE ALJ
[¶9] 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 Rankin did not perform substantial gainful activity (SGA) after January 13, 1994, the alleged date of onset. AR 31, 37 (Finding #2).
[¶10] The ALJ next concluded that Rankin's back impairment, fibromyalgia, and depression combined to establish a severe impairment. AR 31. However, at step three, the ALJ found that none of Rankin's impairments were listing impairments according to the guidelines. AR 21.
[¶11] The ALJ concluded at step four that Rankin was unable to perform previous relevant work or any other type of work as of the onset date, January 13, 1994. AR 33. The ALJ thus concluded that Rankin was disabled beginning on that date. AR 33-34. However, the ALJ found that the disability did not continue beyond April 3, 1996, when Rankin achieved medical improvement. AR 34. The ALJ relied upon notes from Rankin's physical therapist, a functional capacity assessment, notes from Dr. Goff, and Rankin's daily activity in reaching this conclusion. AR 34-35. The ALJ determined that Rankin's subjective complaints were credible though at times inconsistent. AR 35. Specifically, the ALJ noted that Rankin testified that he could sit no more than 20 minutes yet went on a 750 mile trip in the car during which he stopped once every three hours. AR 36. The ALJ also noted that while Rankin takes some prescription drugs the bulk of his pain relief comes from over-the-counter medicine. AR 35.
[¶12] Having determined that Rankin regained the ability to perform work activity, the final step was for the ALJ to determine Rankin's residual functional capacity (RFC).(fn2) The ALJ concluded that Rankin could not perform his prior work activity. AR 36. She then relied upon testimony by Robert Peregrine, a vocational expert, to conclude that Rankin could perform a full range of light work. AR 38 (Finding #7). The ALJ also demonstrated that significant jobs existed in the regional and national economies which Rankin could perform. AR 36. Examples of these positions include a telephone directory delivery operator, a cashier, a street sweeper, and a lamber. Id. Accordingly, the ALJ concluded that Rankin was disabled between January 13, 1994, and April 3, 1996, at which time his condition improved and he no longer met the disabled status according to the regulations.
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 US 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 US 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.DISCUSSION
[¶15] Rankin argues that the ALJ erred by finding his condition improved enough to remove him from disabled status on April 3, 1996. He contends the ALJ's decision is not supported by substantial evidence and criticizes the specific evidence the ALJ relied upon in reaching this conclusion. Specifically, Rankin is critical of the ALJ's reliance on: (1) the February 9, 1996, physical therapy record; (2) the April 3, 1996, functional capacity assessment; (3) Dr. Goff's conclusions; and (4) Rankin's daily activities. Plaintiff's Motion for Summary Judgment (Plaintiff's Brief) at 4-10. Examination of the theses factors and the record as a whole lends credence to the ALJ's decision.
[¶16] While Rankin's criticisms of the ALJ's rationale for finding he reached medical improvement on April 3, 1996, may have some merit taken in isolation, viewed in its entirety the record fully supports the ALJ's decision. Rankin correctly points out that reliance on one statement of a physical therapist on February 9, 1996, is not enough to find that he was able to perform work activity. However, the physical therapy notes from 1994-96 demonstrate a progression in his condition to the extent that Rankin discontinued the therapy on November 30, 1995. AR 278. At that time all of the short-term goals for his therapy had been met and four of six long term goals had been met. Id. Rankin returned to Dakota Hills Physical Therapy for six more treatments in January and February of 1996. AR 277. All but one of these treatments were after a car accident which occurred on January 28, 1996. Id. These treatments again denote a progression with some flare-ups.
[¶17] In any event, the physical therapy notes along with Rankin's testimony demonstrate that his condition was controlled through physical therapy and stretching exercises. AR 146, 167, 277. The record also demonstrates that his range of motion was not greatly restricted by the cervical injury. AR 166-167. Therefore, the ALJ correctly found that Rankin's subjective complaints of disabling pain were not entirely credible. Cruse v. Bowen, 867 F2d 1183, 1186 (8th Cir. 1989) (noting that pain is considered disabling "when it is not remediable" and that "the mere fact that working may cause pain or discomfort does not mandate a finding of disability").
[¶18] Rankin also objects to the ALJ's interpretation of the opinion of Dr. Goff, who concluded that Rankin could no longer perform work-related activity. The ALJ expressly considered the opinion of Dr. Goff, asserted in December 1996, that Rankin could not perform any full-time employment. AR 35. The ALJ concluded that taken as a whole, Dr. Goff's testimony was inconsistent on the issue of Rankin's ability to perform work related activity. Id. For example, Dr. Goff testified that Rankin could lift 20 pounds and that he could perform work as a counter attendant at a convenience store, a clerical job, and a sales job. AR 322. Such inconsistencies lend support to the ALJ's decision. Moreover, Dr. Goff's opinion in December 1996, was based primarily on what Rankin had told him. The significance of such an opinion is reduced when the ALJ determines, as she did here, that the claimant's subjective complaints are not entirely credible. Clark v. Chater, 82 F3d 202, 203-204 (8th Cir. 1996).
[¶19] Rankin vainly attempts to overcome the April 3, 1996, functional capacity assessment by emphasizing how Dr. Goff uses such tools. Plaintiff's Brief at 8. Despite Dr. Goff's opinion, which was addressed above, the ALJ found the assessment to be credible. The assessment indicated that Rankin could work an eight hour day of sedentary to light work activity. AR 392. This conclusion was reached after a battery of tests were performed. AR 393-400. Given the clinical nature of this assessment, the Court finds that the ALJ did not err in relying upon it to reach her conclusion.
[¶20] Rankin's daily activities also support the ALJ's determination. Rankin testified that he could sit for only 20 minutes. AR 60. Yet he also testified that he took a trip in which he drove for three hours straight. Such inconsistencies permit the ALJ to disbelieve the subjective complaints of a claimant. Cruse, 867 F2d at 1186. The other activities engaged in by Rankin further support the ALJ's findings. Rankin does considerable work around the house from vacuuming to tending to the horses. He also attended school for 1½ years after the injury. In addition, the medical record demonstrates that since the injury claimant has chopped wood with an axe, an activity which requires overhead lifting and considerable strain on the back. AR 185.
[¶21] Finally, underlying this entire discussion is a fundamental inconsistency in the record, namely, that Rankin worked for three years while suffering from the same condition from which he currently suffers. He was fired from his job in 1994 not because of his physical limitations but because he failed to pass a commercial driver's test. AR 52-54, 136. Curiously, his alleged onset date is the same day he became unemployed. This coincidence further undermines Rankin's argument that he be given benefits indefinitely.
[¶22] Albert Rankin is a 37 year-old individual seeking social security benefits. Rankin alleged an onset date of January 13, 1994, stemming from the residual effects of a back injury sustained in 1991. The ALJ determined that Rankin was disabled from January 13, 1994, to April 3, 1996, at which time he reached a level of medical improvement which permitted him to perform substantial gainful activity. Rankin took issue with this finding by the ALJ and argued that his impairment had not improved; thereby allowing him to receive benefits indefinitely.
[¶23] The Court finds that the ALJ's findings were supported by substantial evidence. The record indicates that Rankin's condition did improve in 1996. The physical therapy notes and a functional capacity assessment demonstrate that Rankin was capable of performing light to sedentary work activity. His daily activities and the three years of work after the injury also demonstrate his ability to perform work activity after April 3, 1996.
[¶24] Accordingly, it is hereby
[¶25] ORDERED that Rankin's motion for summary judgment (Docket #7) is denied.
[¶26] IT IS FURTHER ORDERED that the Commissioner's motion for summary judgment (Docket #10) 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 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).
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 CFR § 404.1545.