nka Julie Sandford,
WILLIAM A. HALTER, (fn1)
Commissioner of Social Security,
[2001 DSD 13]
United States District
District of South Dakota--Western Division
AND ORDER ON REMAND
Nancy J. Manning, Rapid
Attorney for Plaintiff
Diana J. Ryan, US
Attorney's Office, Rapid City, SD
Attorney for Defendant
Filed May 3, 2001
Hon. Richard H. Battey, U. S. District Judge
[¶1] In an opinion dated May 29, 1998, Administrative Law Judge Wayne N. Araki (ALJ) rendered a decision denying Julie M. Sanford's (Sandford) claim for disability benefits under Title II of the Social Security Act (the Act), and supplemental security income under Title XVI of the Act. Sandford's request for Appeals Council review was denied, and on August 17, 2000, Sandford filed a complaint with this Court urging that the ALJ's decision be reversed and benefits be awarded. This Court has jurisdiction to proceed pursuant to 42 USC § 405(g). FACTS
[¶2] Sandford was born on August 21, 1973, and was 24 years old at the time of the administrative hearing. AR 41. Sandford has a high school education and is licensed as a Certified Nurses Assistant (CNA). AR 43-44. Early in school, she was placed in special education services under an individualized education plan as a young girl and was forced to repeat the third grade. AR 70, 162-166, 371. She is divorced and has one child. Ar 42. Prior to her alleged onset date of October 15, 1995, Sandford worked as a CNA, fast-food worker, and housekeeper. AR 194-207. Sandford alleges she suffers from a learning disability, depression, back problems including mild scoliosis, shoulder pain, and headaches. AR 106-108.
[¶3] In 1990, Sandford was involved in a car accident and injured her neck and back, though these problems resolved themselves. AR 448. In 1993, she was involved in a second car accident, which resulted in a cervical strain, back pain, right parathesia, muscle strain, and headaches. AR 58-59, 226. Since this time, Sandford has gained 100 pounds, and has problems bending, lifting, walking, and sitting. AR 58-59, 75, 77, 79. She takes Prozac for her depression, AR 62, prescription migraine medication for her headaches, and over-the-counter Motrin and Tylenol to relieve her back, neck, and shoulder pain. AR 75. She also visits a chiropractor two or three times a week. AR 76. While she was referred to physical therapy and given a regimen of exercises to perform, she testified that she did not return for the follow-up visits as scheduled and that she attempted the exercises as she had been shown but stopped doing them at some point. AR 62. Her daily activities consist of taking care of her daughter, doing some household chores, going grocery shopping with assistance, taking naps with her daughter, watching movies, and observing her daughter in play. AR 46-47, 66-67, 76, 78.
DECISION BY THE ALJ[¶4] In assessing the sequential process (2) which is required when determining if an individual is disabled pursuant to the Social Security Act, the ALJ first found that Sandford had not engaged in any substantial gainful employment during the period in question. AR 25. At steps two and three, the ALJ determined that her impairments, though severe, did not meet or equal a listed impairment in accordance with 20 CFR Part 404, Subpart P, App. 1, § 1.00 et seq. AR 23. The ALJ next found that Sandford could not return to her past relevant work as a CNA, as such work required the ability to lift more than she was able. AR 23. Finally, the ALJ determined at step five of the sequential evaluation that Sandford did maintain the residual functional capacity (RFC) to perform work as a cashier, assembler, and order clerk or credit clerk. AR 23. He further found that these jobs existed in significant numbers within the regional or national economy. (3) AR 23. Accordingly, the ALJ found Sandford was not disabled under the Act and denied benefits. AR 23, 25.
STANDARD OF REVIEW
[¶5] The decision of the ALJ must be upheld if it is supported by substantial evidence in the record as a whole. See 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 SCt 722, 130 LEd2d 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. See 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 SCt 1420, 1427, 28 LEd2d 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. See 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).
[¶6] 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. See 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. See 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. See Smith v. Sullivan, 982 F2d at 311; Satterfield v. Mathews, 483 FSupp 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. See Smith v. Shalala, 987 F2d at 1374. DISCUSSION
[¶7] For Sandford 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 determined that Sandford retained the RFC to perform sedentary, light, or even medium work activity. AR 24. Sandford now urges this Court to reverse the decision of the ALJ and award her benefits, suggesting that the ALJ committed error: (1) by failing to consider chiropractic evidence and corroborating lay evidence from family and friends; (2) by declining to consider all of her impairments in combination; (3) by discounting her subjective complaints of pain; and (4) by considering her ability to perform light housework and care for her child as corroboration of her ability to perform substantial work in the national economy. Sandford also argues that the ALJ's findings are unsupported by substantial evidence in the record as a whole. These claims will be address seriatim.
[¶8] Evidence of Chiropractic Treatment and Lay Testimony
9[¶10] Sandford first contends that the ALJ failed to take into consideration the evidence of her chiropractic treatment. However, at page two of his written decision, the ALJ expressly acknowledged that Sandford had been "treated primarily with chiropractic manipulation of her spine." AR 21. This comment belies Sandford's claim that the ALJ failed to take into account her chiropractic treatment. While the ALJ did not provide a detailed analysis of the chiropractor's records, this is not required as chiropractors are not deemed to be an "acceptable medical source" under the regulations. See 20 CFR § 404.1513(a); see also Bauer v. Shalala, 53 F3d 917, 920 (8th Cir. 1995). Sandford also asserts that the ALJ's failure to mention the lay statements of her sister and boyfriend signifies that these statements were not considered. This assertion is unavailing; an ALJ need not detail every piece of evidence in the record in arriving at his findings. See Black v. Apfel, 143 F3d 383, 386 (8th Cir. 1998) ("[a]lthough required to develop the record fully and fairly, an ALJ is not required to discuss every piece of evidence submitted ... [and][a]n ALJ's failure to cite specific evidence does not indicate that such evidence was not considered").
[¶11] Consideration of Combined Effect of Impairments
[¶12] Sandford next insists that the ALJ neglected to consider the combined effect of all of her alleged impairments and that had he considered her impairments in combination, he would have found her unable to work. Sandford, however, provides no specific facts in support of this claim and review of the record reveals that the ALJ did, in fact, discuss all of Sandford's alleged impairments separately and in combination, including her claims of headaches, neck and upper back pain, cervical and lumbar strain, border line intelligence, and depression. AR 21-22, 24. At page 2 of the decision, the ALJ acknowledged his duty to consider Sandford's impairments in combination:
[I]t must be determined at steps two and three of the sequential evaluation of the evidence whether the claimant has any severe impairments or combination of impairments, and, if so, whether her impairments are severe enough either singly or in combination to meet or equal the level of severity required by the Listings.
AR 21 (emphasis added). Further, before arriving at a finding of not disabled, the ALJ stated: "[t]he claimant has never had an impairment or combination of impairments severe enough to warrant a finding of disability based upon medical considerations alone ... ." AR 23 (emphasis added). Because Sandford's claim that the ALJ failed to consider the combined effect of her impairments is conclusory and unsupported in the record, it shall be disregarded. See Hajek v. Shalala, 30 F3d 89, 92 (8th Cir. 1994) (rejecting plaintiff's conclusory statement that ALJ failed to consider combined effects of impairments where ALJ noted each impairment and concluded that impairments, alone or in combination, were not of listing-level severity).
[¶13] Discrediting Subject Complaints of Disabling Pain
[¶14] Next, Sandford argues that the ALJ erred in discrediting her subjective complaints of pain. As a threshold matter, it is well-settled that if an ALJ explicitly discredits a claimant's testimony and gives a good reason for doing so, courts should normally defer to that judgment. See Dixon v. Sullivan, 905 F2d 237, 238 (8th Cir. 1990). In discrediting Sandford's subjective complaints of pain in this case, the ALJ expressly stated that he had considered each of the factors outlined in 20 CFR § 404.1529 and § 416.929. (fn4) He then went on to discuss in some detail a number of the inconsistencies which he believed undermined Sandford's complaints of disabling pain.
[¶15] Specifically, the ALJ first found that the objective medical evidence did not document physical abnormalities that could reasonably produce the type of pain alleged by Sandford. This finding is supported by substantial evidence in the record as a whole. See Matthews v. Bowen, 879 F2d 422, 425 (8th Cir. 1989) (finding that medical reports showing only minimal back problems allowed ALJ to discount claimant's subjective complaints of disabling back pain).
[¶16] In February 1995, Sandford complained of headaches, and cervical pain centrally located over the spine, as well as pain in the right posterior shoulder blade area and right buttock. AR 289, 295. In a statement written by Dr. Horst G. Blume, it was observed that testing for thoracic outlet syndrome revealed no abnormal findings, a CT scan of the head revealed no abnormal findings, and x-ray films appeared generally normal. AR 297. While Dr. Blume did observe what he perceived to be a ruptured cervical disc, this appears to have been successfully treated with an occipital nerve block injection given on February 7, 1995. AR 298. On October 22, 1995, Sandford reported to the Headache and Pain Control Center, P.C. complaining of constant and moderate pain in her right posterior shoulder extending into her arm which was again treated with an occipital nerve block injection. AR 299-300.
[¶17] After receiving these treatments, the record is devoid of any evidence that Sandford sought additional care for her alleged impairments for almost two years. While this gap in time is not specifically alluded to by the ALJ, a failure to seek medical assistance for such a lengthy period of time is also inconsistent with complaints of disabling pain. See Gwathney v. Chater, 104 F3d 1043, 1045 (8th Cir. 1997) (claimant's "failure to seek medical assistance for her alleged physical ... impairments contradicts her subjective complaints of disabling conditions and supports the ALJ's decision to deny benefits"); Benskin v. Bowen, 830 F2d 878, 884 (8th Cir. 1987) (noting claimant's failure to seek medical attention inconsistent with complaints of disabling pain).
[¶18] The record shows that beginning sometime in April 1997, Sanford once again sought treatment. AR 265. At this visit, she complained of hip pain and difficulties in picking up her daughter. AR 264-65. She was advised to implement a stretching and exercise routine. AR 265. In a May 29, 1997, visit to the Headache and Pain Control Center, she stated that her low back pain was "really bad all of the time," AR 302, though results of an MRI conducted shortly thereafter, revealed only mild degenerative changes with no evidence of disc herniation, canal stenosis or focal nerve compression. On the whole, the MRI was deemed "unremarkable." AR 427.
[¶19] The ALJ also discredited Sanford's complaints of disabling pain in light of the conservative treatment she had received. AR 24. This finding is also supported by substantial evidence. As the ALJ pointed out, Sandford has generally taken only Tylenol and non-prescription strength Motrin to relieve her pain. See Nelson v. Sullivan, 966 F2d 363, 367 (8th Cir. 1992) (observing that the mere use of nonprescription pain medication is inconsistent with complaints of disabling pain). Though it is true that on at least one occasion she was prescribed Naprosyn and Aleve, these medications appear to have been given in response to her complaints of hip pain aggravated by her Depo Provera shot. (fn5) AR 264-65. In addition, the record of this visit also states that Sanford had "no other problems" to report. AR 265.
[¶20] While Sandford made her own decision to visit a chiropractor several times of week, physical therapy remained the only treatment recommended by her doctors. AR 266. During her initial visit to the physical therapist, the therapist outlined a plan to teach Sandford various mobility and strengthening exercises which were eventually to be carried out at home. AR 285. This treatment was discontinued, however, when Sanford failed to attend her therapy sessions. AR 287. When, shortly thereafter, Sandford again reported complaining of back pain, the attending physician noted: "I believe the patient still needs to lose some weight, do abdominal back extensor strengthening and stretching exercises for her low back. I have re-emphasized that these exercises need to be done as she has been instructed by her therapist." AR 377. Despite being advised of the need to continue her physical therapy exercises, Sandford does not appear to have returned to physical therapy for further treatment, nor did she continue to perform her exercises on her own. In this regard, the ALJ correctly found that Sandford's failure to pursue her recommended course of treatment was also inconsistent with her complaints of disabling pain. See Johnson v. Bowen, 866 F2d 274, 275 (8th Cir. 1989) (ALJ can discredit subjective complaints of pain based on claimant's failure to follow prescribed course of treatment). Finally, the ALJ noted that Sandford's daily activities were not consistent with her accounts of disabling pain as they reflected activity at the sedentary to light exertional level. AR 24. [¶21] As is often the case in disability cases, "there is no doubt that the claimant is experiencing pain; the real issue is how severe that pain is." Spradling v. Chater, 126 F3d 1072, 1074 (8th Cir. 1997) (internal quotation and citation omitted). Upon review of the record as a whole, this Court cannot conclude that the ALJ committed an error of fact or law in finding that Sandford's subjective complaints of disabling pain were not credible. See Haynes v. Shalala, 26 F3d 812, 814-15 (8th Cir. 1994) (observing medical evidence and daily activities that are inconsistent with complaints of disabling pain may provide basis for discounting subjective complaints).
[¶22] Daily Activities as Corroborative Evidence
[¶23] Sandford next argues the ALJ erred by using her daily activities such as performing housework, doing laundry, cooking, and caring for her children, to support his finding that she was able to perform light unskilled work. Because this assertion is a misstatement of the record, it shall be disregarded.
[¶24] Review of the ALJ's decision reveals that while the ALJ did discuss Sandford's ability to perform child care, housework, laundry and cooking, he used this as a factor in support of his finding that her complaints of disabling pain were not credible. AR 24. The ALJ did not use this evidence to corroborate his finding that Sandford had the RFC to perform light unskilled work.
[¶25] Finding of Not Disabled
[¶26] Finally, Sandford contends the ALJ's findings that she can perform work as a cashier, assembler, order clerk or credit clerk is unsupported by substantial evidence in the record as a whole. Specifically, Sandford argues that she is unable to perform any work existing in significant numbers in the regional or national economy because she cannot learn the job in the time required; she is unable to stand for more than 15-20 minutes at a time; she is unable to interact well with members of the public; and she is unable to operate machinery.
[¶27] At the outset, the Court's role on review 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. See Murphy, 953 F2d at 384. Moreover, this Court may not reverse the Commissioner's decision "merely because substantial evidence would have supported an opposite decision." Woolf v. Shalala, 3 F3d at 1213. In this case, the ALJ drafted a thorough decision which is well-supported by substantial evidence in the record as a whole.
[¶28] The ALJ determined that Sandford should avoid lifting in excess of 20-25 pounds, but that she can sit, stand or walk for six to eight hours per day in one to two-hour increments. AR 22. He also found she can perform gross and fine manipulations with her hands, can occasionally stoop, crouch, or squat, and can lift 7-10 pounds frequently and up to 20 pounds occasionally. AR 22. After noting that Sandford has not had regular psychiatric care or counseling, he did find that she has borderline intellect, though he did not find that she suffered from any mental or emotional impairments which would prevent the performance of a full range of unskilled work. AR 22. These findings are amply supported in the record and reflected in his hypothetical questions to the vocational expert (VE).
[¶29] In presenting his hypothetical questions to the VE, the ALJ queried, in part:
[A]ssume that you have a hypothetical person between the age of 20 and 30 ... with the same work history as Ms. Sandford. Then I would like you to assume [she] can read and do math at at least the seventh grade level ... [and] is able to perform unskilled work at the SVP one and two level from an intellectual standpoint. I would also like you to further assume that this hypothetical person can sit or stand anywhere form about 60 minutes at a time, and in combination, can do it for eight hours a day ... [and] could lift or carry 15 to 20 pounds occasionally and 7 to 10 pounds frequently. And I would like you to assume that this person can occasionally stoop, crouch or squat.
AR 85-86. In response to this hypothetical, the VE testified that a person of this type could perform several jobs that existed in significant numbers in the regional or national economy. AR 86-87. Based upon this testimony, the ALJ found Sandford not disabled.
[¶30] Because the ALJ posited a hypothetical to the VE that is supported by substantial evidence in the record as a whole, and which adequately reflects Sandford's impairments, this Court concludes that the Commissioner has met his burden (fn6) as is required at step-five of the sequential process. See Miller v. Shalala, 8 F3d 611, 613 (8th Cir. 1993) (per curiam) (noting that VE's testimony amounts to substantial evidence if hypothetical precisely included impairments that ALJ accepted as true); see also Roe v. Chater, 92 F3d 672, 676 (8th Cir. 1996) (observing that point of hypothetical is to present VE with a set of limitations mirroring claimant's); Onstad v. Shalala, 999 F2d 1232, 1234 (8th Cir. 1993) (stating that ALJ is required to include in hypothetical only those impairments that he finds actually exist).
[¶31] Based upon the foregoing discussion and citation of authority, it is hereby
[¶32] ORDERED that Sandford's motion for summary judgment (Docket #17) is denied. The decision of the Commissioner is affirmed.
A. Halter became the Acting Commissioner of Social Security on January 20, 2001.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, William A.
Halter shall be substituted for Commissioner Kenneth S. Apfel as the defendant
in this suit.
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 20 C.F.R. Part 404, Subpart P, App. 1, § 1.00 et seq.]
(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.
See 20 CFR § 404.1520; 1 Harvey
L. McCormick, Social Security
Claims and Procedures § 410, at 346 (4th
3.According to the testimony of vocational expert (VE) Sara Jensen, there are at least 725 sedentary and light assembly positions in the region and 320,000 nationwide. She also testified there are 95 order clerk positions and 95 credit clerk positions regionally, with 137,000 combined positions nationwide.
4. Under these regulations, the ALJ must consider a claimant's statements, the medical records, prescribed treatment, daily activities, efforts to work, and any evidence demonstrating how her impairments prevent work.
5. Depo Provera is a progestin administered intramuscularly as a contraceptive. See Dorland's Illustrated Medical Dictionary, 445, 1001 (28th ed. 1994).
6. Once there has been a finding that the a claimant can no longer return to her past relevant work, the burden shifts from the claimant to the Commissioner to prove that a significant number of jobs exist in the national economy that the claimant can perform.