JANET L. TRAUPEL,
Plaintiff,
v.
KENNETH S. APFEL,
Commissioner of Social Security,
Defendant.
[1999 DSD 8]
United States District Court
District of South Dakota - Western Division
CIV. 98-5079
MEMORANDUM OPINION AND ORDER
Lawrence R. Bihlmeyer, Rapid City, SD
Attorney for Plaintiff
Diana J. Ryan, US Attorney's Office, Rapid City, SD
Attorney for Defendant
Filed March 3, 1999
Richard H. Battey, Senior District Judge
PROCEDURAL HISTORY
[¶1] Pending before the Court are cross motions for summary judgment filed by plaintiff Janet Traupel (Traupel) and the defendant. On October 31, 1995, Traupel applied for supplemental security income payments under Title XVI and disability insurance benefits under Title II. Traupel alleged November 18, 1994, as the onset date of disability. Traupel's application was denied through the reconsideration level.
[¶2] Traupel subsequently requested a hearing before an Administrative Law Judge (ALJ). A hearing was held on January 10, 1997. On February 11, 1997, the ALJ issued his decision denying Traupel's application. The ALJ determined that Traupel was not disabled according to the regulations at any time prior to the hearing. On June 6, 1998, the Appeals Council declined review of the ALJ's decision. On August 5, 1998, Traupel 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] Traupel was born on December 11, 1957, is currently forty-two years old, and is the mother of three. AR 52. She has a high school degree and an associates degree in electronics. AR 53. The following is a listing of Traupel's employment since 1983:
Grocery store checker/manager - 1983
Convenience store cashier - June to October 1986
Music store employee - November 1986 to August 1987
Pawn shop loan officer - March 1988 to March 1991
Chiropractic assistant - March 1991 to September 1991
Electronics repair - June 1992 to June 1994
Grocery store checker - June 1994 to November 1994.
AR 53-60. Following an injury in November 1994, Traupel attempted to return to work in several different capacities without success. AR 60-62. Her last attempt at employment ended in August 1995. AR 62.
[¶5] Traupel injured her neck and back in a work-related accident in 1994 while working at a grocery store. AR 60. Since the injury Traupel has developed fibromyalgia. Dr. Gregory Gruba, a chiropractor, testified that the fibromyalgia developed as a direct consequence of the injury. AR 65. Dr. Steven Hata from Black Hills Neurology diagnosed Traupel with fibromyalgia syndrome on December 20, 1994. AR 217. On April 4, 1995, Dr. Dwight Caughfield noted that Traupel suffered from fibromyalgia type syndrome and recommended myofacial work to progress into work hardening. AR 229. Dr. Cynthia Weaver reached the same prognosis on November 21, 1996. AR 302.
[¶6] Since the triggering incident in November 1994, Traupel has returned to work. Her physical therapist, Geoff Bonar, noted an initial pain rating of 4 on a scale of 1 to 10. AR 198. During May and June 1995, Bonar steadily increased the amount of work Traupel could perform in a day from two hours to eight. AR 197-207. On June 23, 1995, Traupel worked five days in a row of full shift work at Albertson's. AR 207. Traupel was discharged from physical therapy on July 25, 1995. AR 210.
[¶7] Traupel's progress is also noted by Black Hills Neurology, specifically Dr. Hata. On December 5, 1994, Traupel was originally ordered not to work due to fibromyalgia syndrome and carpal tunnel syndrome. AR 212. In February 1995, Dr. Hata indicated that Traupel was rated at a medium duty level of exertion in a functional capacity assessment (FCA). AR 220. In March 1995, Dr. Hata suggested that Traupel could perform light duty work with frequent lifting of no more than ten pounds and a carrying restriction of 25-30 pounds. AR 221. In September 1995, Dr. Hata noted that there were no longer signs of continuing carpal tunnel syndrome. AR 225.
[¶8] From April to July 1995, Dr. Caughfield also steadily increased Traupel's work hours from ten hours per week to eight hours per day. AR 232-237. Throughout this period Dr. Caughfield characterized Traupel's progress as "good," with "excellent gains." AR 232, 237. On August 1, 1995, Dr. Caughfield determined that Traupel had reached maximum medical improvement (MMI) and gave her a 2 percent whole person impairment rating. AR 238. On November 14, 1995, Dr. Caughfield agreed with the FCA that indicated Traupel could perform light work AR 241.
[¶9] Traupel saw various other individuals in the medical community. Her chiropractor, Dr. Gruba, noted in December 1995 that Traupel should no longer work at Albertson's. AR 276. He also gave her a 15 percent whole person impairment rating and felt her prognosis for recovery was poor. AR 284-85. In October 1996, Rick Ostrander from MVR Consulting Services, Inc. felt that Traupel was "not employable in any type of regular capacity." AR 299.
[¶10] Traupel testified that she is constantly in pain due to fibromyalgia and headaches. AR 72, 76. She cannot sit or stand for long and has difficulty concentrating due to the pain. AR 73-75. At times the weight of her hair becomes painful on her neck and shoulders. AR 74. Often her pain causes numbness in her arms. AR 77. Around the house she performs several activities but must take frequent breaks. AR 77. These activities include: sweeping the floor, dishes, laundry, light housework, cooking, shopping, and short drives. AR 78-80. Due to the sleep-depriving aspects of fibromyalgia Traupel is often tired and must take naps in the afternoon. AR 71, 81.
[¶11] For her pain she has taken several drugs at various dosages including: Naprosyn, Motrin, Tylenol, and Zoloft. She receives frequent chiropractic adjustments and uses ice packs and moist heat to relieve her discomfort. AR 64-65, 69. She also uses a TNS unit five times per week and receives pain counseling. AR 69-70.
DECISION OF THE ALJ
[¶12] 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 the work Traupel performed after the alleged onset date were unsuccessful work attempts and did not constitute substantial gainful activity (SGA). AR 36.
[¶13] The ALJ next determined that Traupel suffers from fibromyalgia and it is a severe impairment. Id. However, at step three, the ALJ concluded that Traupel's severe impairment did not meet the listing requirements and thus did not warrant a presumptive finding of disability. AR 36, 42.
[¶14] The ALJ found Traupel's testimony concerning subjective complaints of pain not entirely credible. Primarily, the ALJ used the lack of corroborative medical evidence as a basis for questioning Traupel's testimony. AR 37-39. The ALJ further rejected the testimony of Dr. Gruba, Traupel's chiropractor, because it was unsupported by medical findings and symptoms. AR 39. According to the ALJ, the opinions of Dr. Caughfield, Dr. Hata, and Dr. Weaver, all treating physicians, demonstrated that Traupel had a greater capacity to perform work than that to which she testified and Dr. Gruba stated. Id.
[¶15] The ALJ concluded at step four that Traupel required significant limitations in the workplace in order to perform work. AR 40. After setting forth those limitations the ALJ went on to conclude that Traupel could perform past relevant work as an assistant store manager. Id. Although the work Traupel actually performed as an assistant manager required medium exertion, the job as identified by the Dictionary of Occupational Titles (DOT) requires only light work. AR 41. Therefore, the ALJ concluded at step four that Traupel could perform past relevant work as assistant store manager and was thus not disabled according to the guidelines. Id.
STANDARD OF REVIEW
[¶16] 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).
[¶17] 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
[¶18] In support of her motion for summary judgment, Traupel contends the ALJ erred in the following four ways: (1) finding Traupel's testimony concerning her subjective complaints not entirely credible; (2) determining that Traupel could perform past relevant work as an assistant manager; (3) denying "plaintiff review by the appeals council[;]" and (4) rejecting the opinion of Dr. Gruba. Plaintiff's Brief in Support of Motion for Summary Judgment (Plaintiff's Brief) at 9. Each argument will be addressed seriatim.
[¶19] Credibility Determination
[¶20] Traupel takes issue with the ALJ's credibility assessment. The ALJ concluded that Traupel was not entirely credible in part because the medical evidence did not support her claims of pain and physical restriction. AR 40. The ALJ also considered Traupel's daily activities and medication. AR 37-39.
[¶21] 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)).
[¶22] Traupel's subjective complaints are frequently inconsistent with the record as a whole. The medical records, except for Dr. Gruba, demonstrate that Traupel maintained the ability to perform at least light work. Shortly after the accident Traupel's range of motion was reasonably normal and in April1995, Traupel gave her pain a rating of 4 on a 1 to 10 scale. AR 192, 197. She was gradually able to increase her ability to work from two hours per day up to eight hours. AR 201-207. In February and March of 1995 notes from Black Hills Neurology indicated she could perform light work AR 219-221. In August 1995, Dr Caughfield gave Traupel a 2 percent whole person impairment rating. AR 238. A functional capacity assessment taken on October 17, 1995, notes that Traupel could lift 22 pounds occasionally and 15 pounds frequently and that she tested in the normal range for many of the physical activities. AR 179-183. The FCA concluded that Traupel could work at the light level. AR 178.
[¶23] For the most part Traupel was taking over-the-counter pain relief medication. She was eventually prescribed Zoloft, an anti-depressant, to help relieve the symptoms of fibromyalgia. Traupel engaged in numerous activities on a daily level although she frequently encountered pain when doing so. AR 174-177. The ALJ considered these activities as well as her ability to stand, sit, and walk. AR 36-37. Accordingly, it is evident that the ALJ thoroughly examined those factors pertinent to the evaluation of Traupel's subjective complaints. Review of this evidence directs the Court to find that substantial evidence supports the ALJ's decision in this regard.
[¶24] Traupel's Ability to Perform Past Relevant Work
[¶25] Traupel contends the ALJ incorrectly reached the conclusion that she could perform her past work as an assistant manager. Plaintiff's Brief at 15. Specifically, Traupel contends that the ALJ failed to consider "the specific demands" of her assistant manager position. Id. Plaintiff bears the burden of showing that she cannot perform past relevant work. Barrett v. Shalala, 38 F3d 1019, 1024 (8th Cir. 1994) (citing Conley v. Bowen, 781 F2d 143, 146 (8th Cir. 1986)).
[¶26] In concluding that Traupel could perform past relevant work as a store manager the ALJ considered the demands of that position as outlined in the DOT, not as Traupel described them. AR 41. The ALJ noted that "regardless of whether the claimant can perform her past work as she performed it, the claimant retains the residual functional capacity to perform that job [as] is generally performed in the national economy." AR 41. The ALJ also drew upon the testimony of a vocational expert in reaching this conclusion. Id. Despite Traupel's protestations, this was the correct analysis.
[¶27] Social Security Regulation (SSR) 82-61 provides two means to determine residual functional capacity for past work. These two means include:
1. The actual functional demands and job duties of a particular past relevant job; or
2. The functional demands and job duties of the occupation as generally required by employers throughout the national economy.
SSR 82-61; Jones v. Chater, 86 F3d 823, 826 (8th Cir. 1996); Martin v. Sullivan, 901 F2d 650, 652-53 (8th Cir. 1990). That the ALJ in this case chose the second alternative was entirely permissible. Martin, 901 F2d at 653. Moreover, "[t]o determine what a typical job description is in the "national economy," an ALJ may take judicial notice of job information in the Dictionary of Occupational Titles. Jones, 86 F3d at 826 (citing Evans v. Shalala, 21 F3d 832, 834 (8th Cir. 1994)). It is therefore evident that the ALJ's determination that Traupel could perform past relevant work is supported by substantial evidence. Traupel did not meet her burden of showing she could not perform such activity.
[¶28] Action of Appeals Council
[¶29] Traupel argues that the Appeals Council's decision not to overturn the decision of the ALJ was in error, especially given the new evidence she submitted. She submitted reports from Dr. Donald Burnap, a consultative psychiatrist, a letter from Dr. Gruba, and letters from her mother, children and a friend.
[¶30] This Court does not have jurisdiction "to review the Appeals Council's action because it is a nonfinal agency action." Mackey v. Shalala, 47 F3d 951, 953 (8th Cir. 1995). Instead, the Court is to examine the record, including the new evidence, and determine if the ALJ's decision is supported by substantial evidence. Id. The Court finds that it is.
[¶31] The new evidence offers very little which could sway the Court. The letter from Dr. Gruba, Traupel's chiropractor, is duplicative as it merely iterates his opinion that Traupel is disabled. As mentioned below, the Court does not depart from the ALJ's determination that Dr. Gruba's opinion is to be accorded lesser weight than the other medical evidence. The opinion of Dr. Burnap, a psychiatrist, is limited in value. Dr. Burnap met with Traupel three times within a month in August and September 1997. AR 10. From these meetings and several psychological exams Dr. Burnap concluded that Traupel has a severe physical illness and could not work. AR 15-16. He offers little supportive, diagnostic evidence of this opinion. Such conclusory statements need not be give much deference. Barrett, 38 F3d 1019, 1023 (8th Cir. 1994) (noting that conclusory statements as to disability made by a physician need not be given special deference). Moreover, given the evidence from Traupel's treating physicians this consultative opinion is accorded little weight. Johnson v. Chater, 87 F3d 1015, 1017-18 (8th Cir. 1996) (opinion of treating physicians to be accorded more weight that consultative physician). Finally, the letters submitted as new evidence offer very little new insight into Traupel's condition. Consequently, the new evidence submitted since the hearing is not persuasive. Substantial evidence supports the ALJ's determination.
[¶32] Dr. Gruba's Opinion
[¶33] Traupel argues that the ALJ erred when he diminished the significance of Dr. Gruba's opinion concerning Traupel's ability to perform substantial gainful employment. Plaintiff's Brief at 20-21. She takes issue with the ALJ's conclusion that "a chiropractor is not an acceptable medical source." AR 27. The ALJ accurately portrayed the status of chiropractors according to the regulations. 20 CFR § 404.1513(a); Walker v. Shalala, 993 F2d 630, 632 n.2 (8th Cir. 1993) ("the Secretary does not acknowledge chiropractors as 'acceptable medical sources,' 20 C.F. R. § 404.1513, and their opinions are therefore accorded less weight than those of medical doctors"). The Court finds no error in the manner in which the ALJ apportioned weight to the various medical evidence.
CONCLUSION
[¶34] Janet Traupel is a forty-two-year-old female whose application for social security benefits was denied by the Commissioner. She alleged an onset date of November 18, 1994, stemming from work-related injuries to her back and neck which developed into fibromyalgia.
[¶35] Traupel filed a complaint in this Court asserting four reasons why the ALJ had erred in concluding that she was not disabled. The Court has considered Traupel's arguments as well as the counter-arguments submitted by the Commissioner and finds that substantial evidence supports the ALJ's opinion that Traupel was not disabled at any time prior to the hearing.
[¶36] Accordingly, it is hereby
[¶37] ORDERED that Traupel's motion for summary judgment (Docket #14) is denied
[¶38] IT IS FURTHER ORDERED that the Commissioner's motion for summary judgment (Docket #19) is granted. Judgment shall be in favor of defendant and against plaintiff. Plaintiff's complaint shall be dismissed with prejudice.
Footnotes
1. The steps are summarized as follows:
(1) First, a determination is made whether claimant is currently engaged in substantial gainful activity; if so, she must be found not disabled.
(2) If claimant is not engaged in substantial gainful activity, the next question is whether she 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 she can, a finding of no disability is required.
(5) Finally, if claimant cannot perform relevant past work, the question then becomes whether she can nevertheless do other jobs that exist in the national economy, despite her having a severe impairment that prevents return to her 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).