MARLENE MOON,
Plaintiff,
v.
KENNETH S. APFEL,
Commissioner of Social Security,
Defendant.
[1999 DSD 15]
United States District Court
District of South Dakota
Western Division
CIV. 98-5089
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 Apr 26, 1999.
Richard H. Battey, Senior District Judge
I. PROCEDURAL HISTORY
[¶1] In an opinion dated July 20, 1997, Administrative Law Judge Jon L. Lawritson ("ALJ") denied plaintiff Marlene M. Moon ("Moon") disability benefits under Title II of the Social Security Act ("the Act"), 42 USC §§ 401-433. Moon then requested that the Appeals Council review the ALJ's decision, but the Appeals Council declined. On September 22, 1998, Moon filed a complaint with this Court (Docket #1) urging that the ALJ's decision be reversed. Moon's brief seeking reversal was filed on February 10, 1999 (Docket #11). The Commissioner of Social Security ("Commissioner") has filed his response seeking summary judgment as a matter of law (Docket # 12). Moon has replied. This Court has jurisdiction to proceed pursuant to 42 USC § 405(g).
II. FACTS
[¶2] Moon was born on April 14, 1938, and was 59 years old at the time of her administrative hearing. AR 16, 30. Moon has a tenth grade education and has worked as an apartment manager and commissary employee. AR 30, 47.
[¶3] Moon alleges she became disabled in 1980 when she injured her back while hauling lava rock for landscaping. AR 33. At the administrative hearing held on May 5, 1997, Moon testified that she suffered three ruptured discs as a result of her injury. AR 34. She stated that she was required to wear a back brace for some time, but upon its removal she received no additional physical therapy or treatment. Id. Although Moon continued in her position as an apartment manager after her injury, she testified that her husband and mother frequently filled in for her when the pain in her back forced her to lie down. Moon worked as an apartment manager until May 24, 1994. AR 17, 31.
[¶4] Moon is afflicted with lower back pain which radiates down the back of her right leg through the buttocks. AR 48-49. She asserts that her pain is constant and is worsened by sitting, standing, walking, or lying in any one position for more than10 to 20 minutes. AR 35-36, 46-49. Moon says she can drive for up to 50 minutes and sit in a straight backed chair for up to 90 minutes. AR 46-47. To alleviate her pain she lies down, exercises, and takes both prescribed and over-the-counter pain medication.(fn1) AR 42.
[¶5] Moon's daily activities consist of cooking and washing dishes, mopping the kitchen floor, doing laundry, ironing, and going shopping. She performs these chores at her own pace, with frequent breaks. AR 45. For hobbies, Moon enjoys playing bingo and fishing. AR 41, 49.
III. DECISION BY THE ALJ
[¶6] 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 Moon had not engaged in any substantial gainful activity since May 24, 1994. AR 17. Next, the ALJ found that Moon suffered from mild degenerative disc disease, and that, although the condition was severe, it was not a listed impairment as outlined in Appendix 1 of the Regulations. See Appendix 1 to Subpart P, Part 404, 20 CFR §§ 404.1501 et seq. Specifically, the ALJ analyzed Moon's back condition under listing 1.05(c) (Disorders of the Spine) which requires that the claimant suffer pain, muscle spasms, and a significant limitation of motion in the spine, as well as an appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss. In making his findings, the ALJ thoroughly examined the medical evidence in the record, noting that "[t]here is no evidence of muscle weakness in this case and neither the treating physician nor the examining physician have [sic] mentioned findings equivalent in severity to the criteria of any listed impairment." AR 17.
[¶7] After determining that Moon's condition did not meet any listed impairment, the ALJ went on to consider whether Moon maintained the residual functional capacity(fn3) to perform her past relevant work as an apartment manager. The ALJ answered this question in the affirmative, stating that "[b]ecause Ms. Moon's past work did not require the performance of work activities precluded by her medically determinable impairment, she is able to return to the type of work she performed in the past." AR 20-21.
[¶8] The ALJ also found that Moon's statements concerning her impairment and its impact on her ability to work were not fully credible in light of her daily activities and lifestyle, the reports of examining practitioners, her medical history, and the findings made upon examination. Based upon these conclusions, the ALJ found that Moon was not disabled under the Act.
IV. STANDARD OF REVIEW
[¶9] 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).
[¶10] However, the Court's role 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.
V. DISCUSSION
[¶11] For Moon to be eligible for disability benefits, she must be under a disability at the time she was insured. See 42 USC § 423(a)(1)(A)-(D). A disability is defined as:
[an] inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.
Id. § 423(d)(1). In this case the ALJ concluded that Moon, while suffering from mild degenerative disc disease, was not disabled under the Act because she maintained the residual functional capacity to perform her past work as an apartment manager.
[¶12] Moon urges this Court to reverse the ALJ's decision, contending (1) that the ALJ's erred in finding that Moon could perform her past relevant work as an apartment manager; (2) that the ALJ's rejection of Moon's subjective complaints of pain was unsupported by substantial evidence; and (3) that the application of the Medical Vocational Guidelines directs a finding of disabled. Upon careful review, this Court finds that the ALJ's decision was proper and based upon substantial evidence in the record as a whole.
[¶13] A. Whether the Finding of Ability to Perform Past Relevant Work was in Error
[¶14] Moon argues that the ALJ erred in determining that her work as an apartment manager from 1989 through 1994 was substantial gainful activity. In support of this proposition Moon points to 20 CFR § 404.1573(b) which states in part "if you are unable, because of your impairments, to do ordinary or simple tasks satisfactorily without more supervision or assistance than is usually given other people doing similar work, this may show that you are not working at the substantial gainful activity." Moon insists that she maintained her job as an apartment manager only due to the assistance of her husband and mother who filled in for her when severe pain forced her to lie down for long periods of time. Because of this assistance, Moon believes her work should be considered "minimal and subsidized" and therefore it cannot be deemed substantial gainful activity. Moon then goes on to conclusorily state "[t]he ALJ's denial of benefits because of a finding that Claimant had the ability to do her previous minimal and subsidized employment constitutes an error of law."
[¶15] For Moon's argument to succeed she must establish two points: (1) that her work as an apartment manager between 1989 to 1994 was not substantial gainful activity pursuant to 20 CFR § 404.1573(b); and (2) the ALJ determined that Moon could return to her past relevant work as an apartment manager based upon a job description that allowed her, with family assistance, to lie down for several hours at a time while on the job. Because Moon has not established either of these two points, her argument fails.
[¶16] While it is true that a showing of an inability to perform ordinary work tasks without assistance may establish a lack of substantial gainful activity under § 404.1573(b), no such showing has been made in this case. The ALJ properly concluded, based upon income earned (over $500 monthly) and employment history, that Moon had engaged in substantial gainful activity during her work as an apartment manager between 1989 to 1994. See 20 CFR § 1574. Moon has simply failed to establish that the ALJ erred in this determination. Moreover, the ALJ concluded that Moon was able to perform her past relevant work as an apartment manager based upon the impartial job description outlined by the testifying vocational expert. This description required that Moon be able lift up to 20 pounds, alternate sitting and standing every four hours, and occasionally stoop, climb, and kneel. The job description did not provide that Moon could sit for short periods of time and be relieved by family when her pain became too intense. The ALJ expressly determined that Moon's description of pain was not fully credible and that she could perform the duties of an apartment manager as outlined by the impartial vocational expert. Given Moon's failure to establish either of the two points outlined above, this Court cannot conclude that the ALJ erred as a matter of law.
[¶17] B. Whether the Credibility Assessment was Based Upon Substantial Evidence
[¶18] Moon argues that the ALJ improperly discredited her subjective complaints of disabling pain. This Court disagrees. The ALJ found that Moon's statements concerning her impairment and its impact on her ability to work were not fully credible in light of her daily activities and lifestyle, the reports of examining practitioners, her medical history, and the findings made upon examination. All of these are appropriate factors for consideration under Polaski v. Heckler.(fn4)
[¶19] It is well settled that an ALJ may discount subjective complaints of pain if they are inconsistent with the evidence as a whole. See Rautio v. Bowen, 862 F2d 176, 179 (8th Cir. 1988). While the ALJ acknowledged that Moon suffers from some pain and discomfort, he pointed to several factors which weighed against Moon's credibility including her active lifestyle and the objective medical evidence. On a daily basis, Moon cooks, cleans, irons, shops, and occasionally goes fishing or plays bingo. The ALJ also noted that Moon could drive for 50 minutes at a time without a break and could sit in a straight backed chair for up to 90 minutes. These types of daily activities are properly considered by an ALJ in making credibility determinations regarding subjective complaints of pain. See Lawrence v. Chater, 107 F3d 674, 676-77 (8th Cir. 1997) (ALJ properly discredited subjective complaints of pain where inconsistent with medical evidence and daily activities); Clark v. Chater, 75 F3d 414, 417 (8th Cir. 1996) (ALJ may discredit complaints that are inconsistent with evidence including daily activities).
[¶20] In addition, the ALJ carefully reviewed the medical records in evidence before finding that the frequency, intensity, and level of pain complained of by Moon was inconsistent with the medical evidence. The ALJ discussed in some detail the medical evidence submitted from Moon's physicians, including reports from Dr. Susan M. Tiona, Dr. David A. Klopfenstein, and Dr. William R. Zavitz. None of these physicians reported that Moon was suffering from more than mild degenerative disc disease. In addition, Dr. Tiona reported that Moon did not have a "surgically amenable problem." Such an absence of supporting objective medical evidence is properly considered in assessing a claimant's subjective complaints of pain. See Barrett v. Shalala, 38 F3d 1019, 1022 (8th Cir. 1994).
[¶21] The ALJ also observed that Moon had failed to seek any treatment for the injuries to her back between 1989 and 1994. A failure to seek treatment for injuries has often been held to be inconsistent with subjective complaints of disabling pain. See e.g., Onstead v. Sullivan, 962 F3d 803, 805 (8th Cir. 1992); Benskin v. Bowen, 830 F2d 878, 884 (8th Cir. 1988). Given the inconsistencies in the record, and based upon the foregoing authority, the Court finds that the ALJ's assessment of Moon's credibility is supported by substantial evidence.
[¶22] C. Whether the GRIDS Require a Finding of Disabled
[¶23] Moon argues that even assuming the ALJ properly determined that she was able to return to her past relevant work, application of the Medical Vocational Guidelines ("GRIDS") still directs a finding of disabled. Under Rule 201.02 of the GRIDS, a person of advanced age, with a limited education, skilled or semi-skilled previous work experience and non-transferable skills should be found disabled.
[¶24] The GRIDS become applicable, however, only after the claimant has satisfied her burden of demonstrating that she is incapable of performing her past relevant work and the burden has shifted to the commissioner to show that claimant retains the residual functional capacity to perform other jobs in the national economy. See Walker v. Shalala, 993 F2d 630, 632 (8th Cir. 1993) (citing Robinson v. Sullivan, 956 F2d 836, 841 (8th cir. 1992); Edwards v. Secretary of Health and Human Services, 809 F2d 506, 507 (8th Cir. 1987); McCoy v. Schweiker, 683 F2d 1138, 1142 (8th Cir. 1982)). In this case, the ALJ properly determined that Moon was capable of performing her past relevant work as an apartment manager. Once this finding was made, the disability analysis was halted and a finding of "no disability" was required. Given this determination, the disability analysis ended before the burden shifted to the commissioner, thus eliminating the applicability of the GRIDS. Because the GRIDS are not applicable in this case, Moon's argument is without merit.
[¶25] In view of the foregoing discussion, this Court concludes that substantial evidence supports the ALJ's determination that Moon is not disabled and thus not entitled to benefits under the Act. Accordingly, it is hereby
[¶26] ORDERED that Moon's motion seeking reversal of the ALJ's decision (Docket #11) is denied. The decision of the ALJ is affirmed.
[¶27] IT IS FURTHER ORDERED that the Commissioner's motion for summary judgment (Docket #12) is granted. Judgment shall issue accordingly.
Footnotes
1. Moon has been prescribed Nortiptyline which she takes at night. She also takes Excedrin, Ecotrin, and Motrin.
2. 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).
3. The ALJ determined that Moon had a residual functional capacity to lift and carry more than 20 pounds, sit four hours and stand four hours, as well as stoop, climb, and kneel on occasion.
4. The factors to be used in an ALJ's determination of a claimant's credibility were outlined in the well-cited case of Polaski v. Heckler, 739 F2d 1320, 1322 (8th Cir. 1984) (subsequent history omitted):
The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant's prior work record, and observations by third parties and treating and examining physicians relating to such matters as:
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.
Polaski, 739 F2d at 1322. This Court recognizes that it may not be error for an ALJ to fail to discuss all the factors in Polaski. The Eighth Circuit has held:
Although the ALJ did not explicitly discuss each Polaski factor in a methodical fashion, he acknowledged and considered those factors before discounting [Claimant's] subjective complaints of pain. What we said in an earlier case is applicable here: "An arguable deficiency in opinion-writing technique is not a sufficient reason for setting aside an administrative finding where . . . the deficiency probably had no practical effect on the outcome of the case." Benskin, 830 F2d at 883.
Brown v. Chater, 87 F3d 963, 966 (8th Cir. 1996).