KURT SCHMIDT,
Plaintiff,
v.
KENNETH S. APFEL,
Commissioner of Social Security,
Defendant.
[1999 DSD 3]
United States District Court
District of South Dakota-Western Division
CIV. 98-5090
MEMORANDUM OPINION AND ORDER
Michael John Simpson, Groves, Julius & Simpson, Rapid City, SD
Attorney for Plaintiff
Diana J. Ryan, U.S. Attorney's Office, Rapid City, SD
Attorney for Defendant
Filed Feb 1, 1999
Richard H. Battey, Senior District Judge
PROCEDURAL HISTORY
[¶1] Pending before the Court are cross motions for summary judgment filed by plaintiff Kurt Schmidt (Schmidt) and the defendant. On April 4, 1996, Schmidt applied for Title II disability insurance benefits and supplemental security income payments under Title XVI. Schmidt alleged February 15, 1993, as the onset date of disability but amended this date to August 30, 1992, during the ALJ hearing. Schmidt's application was denied through the reconsideration level.(fn1)
[¶2] Schmidt subsequently requested a hearing before an Administrative Law Judge (ALJ). A hearing was held on July 9, 1997. On August 27, 1997, the ALJ issued her decision denying Schmidt's application. The ALJ determined that Schmidt was not disabled according to the regulations at any time prior to the hearing. On August 28, 1998, the Appeals Council declined review of the ALJ's decision. On September 22, 1998, Schmidt 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).
FACTS
[¶4] Schmidt was born on July 16, 1962, is currently thirty-six years old, and is married. AR 40. He quit school in ninth grade and has obtained a GED. AR 40. He has also had some training in auto body repair. AR 65. The following is a listing of Schmidt's employment since 1987:
logger - January 1987 to January 1988
auto body repairman - July 1989 to December 1989
brake repairman - January 1990 to October 1990
auto body repairman - November 1990 to November 1991
auto body repairman - February 1992 to September 1992
janitor - November 1992 to February 1993.
AR 249.
[¶5] Schmidt injured his back in a work-related accident in 1987 while doing work as a logger. AR 44. He was hospitalized for five days following the accident. AR 45. X-rays taken shortly after the accident showed no evidence of a fracture or neurological damage and he had good range of motion. AR 148-49. A bone scan taken in December 1988 revealed no abnormalities. AR 154. However, in January 1989 he was diagnosed as having mild scoliosis and wedging in the dorsal spine area. AR 160. An MRI in August 1990 was normal with no herniation. AR 171. Again in 1992 an MRI revealed no disc herniation but did show some mild bulging. AR 192. Schmidt had good strength in all muscle groups as of September 1993. AR 198. A CT scan in December 1994 showed no spondylolysis. (293). On May 7, 1995, Dr. Sabow concluded that Schmidt could return to work on light to moderate duty and that he could lift 50 pounds occasionally and 20 pounds frequently. AR 200. In June 1995, Dr. Sabow gave Schmidt a 33 percent whole body permanent impairment rating. AR 298. Dr. Sabow stated that Schmidt could perform sedentary work if retrained but until retrained he was totally unemployable. Id. In June 1997, Dr. Sabow, in response to interrogatories, opined that Schmidt "is permanently disabled from assuming any full-time or gainful employment." AR 373. At various times Schmidt was prescribed Lorcet, Darvocet, Flexeril, and Deseryl to assist him with pain and flexibility. AR 273.
[¶6] After the injury in 1987, Schmidt experienced low-back pain and intermittent numbness on the left side of his body. AR 51-53. Schmidt testified that typically three days a week he doesn't leave the house because of the pain in his back. AR 54. On those days he rests as much as possible and avoids any type of activity. Id. Colder weather exacerbates his condition. Id. Schmidt testified that he can sit for no more than one hour and can stand for no more than an hour. AR 57. He also testified that he can engage in only limited walking, can lift up to 20 pounds but it "hurts like hell," and that he has difficulty sleeping. AR 57-58. He continues to fish, although he sits in one place instead of walking up and down the stream, he visits friends and plays pool on occasion. AR 56, 65.
[¶7] Schmidt also testified that at the time of the hearing he had been taking Prozac for two years to help him with depression. AR 55, 60. He takes one pill three or four times a week to help him with his attitude. AR 55. Schmidt testified that he sometimes feels listless and has difficulty concentrating due to his back ailment. AR 60-61. Dr. Sabow first prescribed Prozac in June 1995. AR 365.
DECISION OF THE ALJ
[¶8] In assessing the sequential process(fn2) which is required when determining if an individual is disabled pursuant to the Social Security Act, the ALJ first concluded that Schmidt did perform substantial gainful activity (SGA) after his alleged onset date. AR 22. The ALJ observed that Schmidt worked as a custodian at Black Hills State University for four months ending on February 15, 1993. During that time Schmidt averaged over $700 per month in wages which exceeds the minimum which is "normally indicative of substantial gainful activity." AR 21. The ALJ noted that Schmidt did not engage in substantial gainful employment after February 15, 1993. AR 22, 25 (Finding #2).
[¶9] The ALJ next determined that Schmidt's back impairment, a "status post compression fracture at T7-9," was a severe impairment. AR 22. However, at step three, the ALJ found that the back impairment was not a listing impairment according to the guidelines. AR 22, 26 (Finding #3). The ALJ emphasized that there was no diagnostic evidence that Schmidt's back ailment resulted in "significant limitation in range of motion and muscle weakness and sensory and reflex loss" as is required under the listings. AR 22.
[¶10] The ALJ concluded at step four that Schmidt was unable to perform previous relevant work. AR 25. The ALJ determined that Schmidt's subjective complaints were not entirely credible. AR 24. Specifically, the ALJ noted that Schmidt's testimony was not supported by the medical record or discussions he had with his doctors. Id. Schmidt's daily activities also conflicted with his subjective complaints according to the ALJ. Id. Finally, the ALJ noted that there is no diagnostic evidence that Schmidt suffers from a nonexertional impairment. Id.
[¶11] Having determined that Schmidt retained the ability to perform work activity, the final step was for the ALJ to determine Schmidt's residual functional capacity (RFC).(fn3) The ALJ concluded that Schmidt could not perform his prior work activity which was quite strenuous but he could perform work at the sedentary level. AR 24. The ALJ relied upon the medical-vocational rules (the grid) to demonstrate that significant jobs existed at the sedentary level in the regional and national economies which Schmidt could perform. AR 25. Accordingly, the ALJ concluded that Schmidt was not disabled during the relevant period and was not entitled to benefits. AR 25, 26 (Findings #9,10)
STANDARD OF REVIEW
[¶12] 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).
[¶13] 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
[¶14] In support of his motion for summary judgment, Schmidt contends the ALJ erred in the following ways: (1) rejecting the opinion of Dr. Sabow, (2) failing to order a consultative exam concerning Schmidt's nonexertional impairments, (3) rejecting Schmidt's subjective complaints, and (4) applying the medical-vocational guidelines when there was evidence of nonexertional impairments. Plaintiff's Brief in Support of Motion for Summary Judgment (Plaintiff's Brief) at 4-14. Each argument will be addressed seriatim.
[¶15] Dr. Sabow's Opinion
[¶16] Schmidt argues that the ALJ erred when he diminished the significance of Dr. Sabow's opinion concerning Schmidt's ability to perform substantial gainful employment. Plaintiff's Brief at 4-5. He takes issue with the ALJ's conclusion that the record does not support Dr. Sabow's opinion that Schmidt was unable to perform any substantial gainful activity.
[¶17] It is true, as Schmidt argues, that a physician's opinion is ordinarily entitled to substantial weight. McGhee v. Harris, 683 F2d 256, 259 (8th Cir. 1982). It is equally true that a physician's conclusion that an individual is disabled, as defined by the guidelines, need not be given special deference. 20 CFR §§ 404.1527(e)(2) and 416.927(e)(2) (noting that the Commissioner has the final responsibility for determining whether an individual is disabled. Special significance will not be placed on opinions by treating physicians that an individual is disabled.); Ostronski v. Chater, 94 F3d 413, 417 n.5 (8th Cir. 1996); Barrett v. Shalala, 38 F3d 1019, 1023 (8th Cir. 1994). This is especially true where there is little clinical or diagnostic support for such a conclusion. Ostronski, 94 F3d at 420-21. In the instant case, the Court finds that the ALJ did not err in minimizing the 1997 conclusion of Dr. Sabow.
[¶18] On June 16, 1997, in preparation for the ALJ hearing, Dr. Sabow noted that Schmidt "is permanently disabled from assuming any full-time or gainful employment." AR 373. Schmidt seizes upon this language as support for his disability contention. The ALJ concluded that Dr. Sabow's opinion need not be accorded significant weight primarily because it was contradicted by Dr. Sabow's own records and notations. AR 23. Dr. Sabow began treating Schmidt in April 1991, several years after the accident from which Schmidt's back pain arose. From April 1991 to June 1997, Dr. Sabow frequently indicated that Schmidt was capable of performing work at one level or another. Dr. Sabow's 1997 conclusion that Schmidt was unfit for work is inconsistent with his prior findings, especially since Dr. Sabow noted no consistent deterioration of Schmidt's condition over the years. Thus, his 1997 opinion is somewhat anomalous. Given this fact, and the notion that a treating physician's opinion as to disability is not determinative, especially when there is little diagnostic support for it, the Court concludes that the ALJ did not err in rejecting Dr. Sabow's opinion that Schmidt could not perform substantial gainful activity.
[¶19] Failure to Develop Record on Schmidt's Depression
[¶20] Plaintiff argues that the ALJ improperly disregarded Schmidt's own testimony and his use of Prozac in concluding that Schmidt did not suffer from a nonexertional impairment. Plaintiff's Brief at 8. Schmidt contends that the ALJ had a duty to more fully develop the record concerning his depression by ordering a psychological or psychiatric examination. Id. The ALJ noted that the record does indicate Schmidt suffers from some symptoms of depression but that there is no diagnostic evidence nor restrictions on Schmidt's activities to support further examination of the issue. AR 24.
[¶21] It is well established that the ALJ has a duty to fully and fairly develop the record. Boyd v. Sulllivan, 960 F2d 733, 736 (8th Cir. 1992) (quoting Warner v. Heckler, 722 F2d 428, 431 (8th Cir. 1983)). The duty to develop the record may include ordering a consultative examination in appropriate cases. Dozier v. Heckler, 754 F2d 274, 276 (8th Cir. 1985). However, the regulations do not require the ALJ to order a consultative evaluation of every alleged impairment. See 20 CFR § 416.919a; Matthews v. Bowen, 879 F2d 422, 424 (8th Cir. 1989). The regulations require a consultive examination "when the evidence as a whole, both medical and nonmedical, is not sufficient to support a decision on [a] claim." 20 CFR § 416.919a(b). Additionally, as with physical impairments, to establish a mental impairment there must be "medical evidence consisting of signs, symptoms, and laboratory findings, not only [claimant's] statement of symptoms." 20 CFR §§ 404.1508, 404.1512(b)(1), 404.1527(a)(1).
[¶22] In the instant case, the only evidence of depression was Schmidt's own testimony and the prescription of Prozac by Dr. Sabow. Nowhere does the record reflect Dr. Sabow performed any psychological testing or evaluation before prescribing Prozac, one of the most prescribed drugs there is. There is also no evidence that Schmidt's depression limited him in any way. Furthermore, the medical record in this case is quite thorough and not once did Schmidt receive treatment for depression nor was it recommended that he do so. The lack of diagnostic or other evidence of depression supports the ALJ's decision not to pursue further inquiry into Schmidt's mental impairment.
[¶23] Credibility Determination
[¶24] Schmidt next takes issue with the ALJ's credibility assessment. The ALJ concluded that Schmidt was not entirely credible in part because the activities he was capable of performing since the back injury and the fact that Schmidt made very few references concerning his limitations to his physicians. AR 24.
[¶25] An ALJ has the discretion to discredit claimant's subjective assertions of pain and suffering if not supported by medical evidence. Cruse v. Bowen, 867 F2d 1183, 1186 (8th Cir. 1989). Furthermore, "[i]f there are inconsistencies on the record as a whole, an ALJ is permitted to disbelieve claimant's subjective complaints." Id. (citing Conley v. Bowen, 781 F2d 143, 147 (8th Cir. 1986)).
[¶26] Schmidt's subjective complaints are frequently inconsistent with the record as a whole. First, the back injury in this case occurred in 1987. Schmidt intermittently complained of pain thereafter even though various diagnostic techniques, including MRIs, x-rays and a CT scan, revealed no damage to his spine. Moreover, Schmidt continued to perform substantial gainful activity following the accident for another six years. Second, Schmidt's daily activities demonstrate that his pain is not as debilitating as he testified. Schmidt does considerable work around the house including cooking, washing dishes, vacuuming, dusting, sweeping, mowing the lawn, driving, and car maintenance. AR 56-58, 71, 114, 248, 325. Schmidt also enjoys visiting friends, playing pool, and fishing. AR 68-70. He attempted to go to work as a chainsaw store operator only to be precluded due to high insurance premiums, not his physical incapacity. AR 67. Third, the medical notes do not reflect the kind of agony to which Schmidt testified. While the medical record often indicates that Schmidt was in pain they also reflect that his range of motion, strength, and flexibility were infrequently restricted. AR 149, 104, 198, 200. For instance in September 1993, Schmidt was reported as having good strength in all muscle groups in his lower body. AR 198. In May 1995, Dr. Sabow reported that Schmidt could lift 50 pounds occasionally and 20 pounds frequently and that he could return to work in a light or moderate capacity. AR 200. These factors lend support to the ALJ's credibility finding. The Court finds that the ALJ's determination that Schmidt's testimony concerning the degree and severity of his pain was not fully credible is supported by substantial evidence.
[¶27] Application of the Medical-Vocational Guidelines
[¶28] Schmidt's final contention involves the ALJ's use of the medical-vocational guidelines, or "the grids" as they are commonly known. Plaintiff's Brief at 6. According to Schmidt, the pain from his back ailment as well as his depression preclude the use of the grids to determine his RFC.
[¶29] Schmidt is correct that use of the grids is typically not permitted when nonexertional impairments, including pain, are present. Foreman v. Callahan, 122 F3d 24, 25 (8th Cir. 1997). 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)). As mentioned previously, the ALJ determined that the dearth of evidence of depression did not warrant a finding that Schmidt suffered from a mental impairment. AR 24. The Court agrees with this assessment and thus use of the grids was not precluded by Schmidt's alleged depression.
[¶30] Pain is considered a nonexertional impairment. Beckley v. Apfel, 152 F3d 1056,1059 (8th Cir. 1998). The ALJ made express findings that Schmidt's subjective complaints of pain were not entirely credible. The ALJ concluded that his pain did not significantly reduce Schmidt's ability to perform sedentary work. AR 24. In reaching this conclusion the ALJ considered Schmidt's testimony, the medical record, and his daily activities. AR 24. Having concluded that Schmidt could perform sedentary work despite his subjective complaints of pain use of the grids was permitted. Lucy, 113 F3d at 908. The Court finds that neither Schmidt's allegations of pain or depression were so significant as to preclude the use of the grids to determine his RFC.
CONCLUSION
[¶31] Kurt Schmidt is a thirty-six-year old male whose application for social security benefits was denied by the Commissioner. He alleged an onset date of August 30, 1992, stemming from work-related injuries to his back in 1987. He also alleges he suffers from depression brought about by his back injury.
[¶32] Schmidt filed a complaint in this Court asserting four reasons why the ALJ had erred in concluding that he was not disabled. The Court has considered Schmidt's arguments as well as the counter-arguments submitted by the Commissioner and finds that substantial evidence supports the ALJ's opinion that Schmidt was not disabled at any time prior to the hearing.
[¶33] Accordingly, it is hereby
[¶34] ORDERED that Schmidt's motion for summary judgment (Docket # 7) is denied
[¶35] IT IS FURTHER ORDERED that the Commissioner's motion for summary judgment (Docket #8) is granted. Judgment shall be in favor of defendant and against plaintiff. Plaintiff's complaint shall be dismissed with prejudice.
Footnotes
1. Schmidt initially filed for benefits in October 1993 and January 1995. These claims were denied at the initial level. Schmidt did not request a hearing before an ALJ on those claims
2. 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).
3. 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.