LARRY G. MASSANARI,
Acting Commissioner, Social Security Administration,
[2001 DSD 24]
Catherine R. Enyeart, Enyeart & Koehn. Hot Springs, SD
Attorney for Plaintiff
Diana J. Ryan, U. S. Attorneys Office, Rapid City, SD
Attorney for Defendant
Filed Sept 5, 2001
Hon. Richard H. Battey, United States District Judge
[¶1] Administrative Law Judge James D. Geyer ("ALJ") entered a decision on March 31, 2000, finding that Todd Estes ("Estes"), was not disabled as defined in the Social Security Act (the "Act") and consequently was not entitled to supplemental social security income under § 1614(a)(3)(A) of the Act. Subsequently, Estes filed a request for review with the Appeals Council on April 25, 2000. The Appeals Council denied the request on September 26, 2000. A complaint was filed with this Court on November 14, 2000 (Docket #1), and Estes filed a motion for summary judgment on June 1, 2001 (Docket #14). This Court has jurisdiction over this matter pursuant to 42 USC § 405(g).
[¶2] Estes was born on August 6, 1958. Administrative Record ("AR") at 39. He is single and lives alone. AR 39. Estes has completed two years of college, achieving sophomore status. AR 39. Estes has worked as a substitute teacher, pipe layer, library assistant, finish carpenter, tutor, lay public defender, and probation officer. AR 53-54, 68. He has also worked odd jobs. AR 54. Needless to say, Estes's work history is sketchy and sporadic at the very least. AR 53-54, 68.
[¶3] On July 15, 1998, Estes was involved in a automobile accident involving alcohol. AR 320. Estes complains of pain in his left ankle and the right side of his head. AR 41, 70. He alleges that the pain occurs 24 hours a day, seven days a week. AR 70. He also alleges that he suffers from constant headaches. AR 71. On a scale of zero to ten (with ten being high), Estes alleges a pain level of eight for the right side of his leg and a pain level of six to eight for his headaches (reduced to five with medication). AR 70-72. His leg is made worse by standing and walking. AR 71. Additionally, Estes complains of blurred vision and abnormally frequent urination. AR 40, 49.
[¶4] Dr. P. E. Hoffsten, M.D., examined Estes and found the following:
1. Long past history of alcoholism.
2. History of fracture of the left ankle with the development of osteomyelitis and subsequent fusion, age 26.
3. Fracture of the right leg secondary to accidental fall with placement of titanium rod still in place, healing completed.
a. Moving vehicle accident, July 15, 1998. Single car rollover accident secondary alcohol excess with multiple injuries including:
b. Fracture of right elbow now lacking 15 degree of full extension with plate device in place.
c. Healed laceration, left forehead.
d. Bimalleolar fracture, right ankle - healed, but with post traumatic arthritic change.
e. Adult respiratory distress syndrome with need for tracheostomy and eventual recovery.
f. Nonoliguric acute renal failure, recovered.
g. Claimed difficulty with memory, blurred vision, drifting to the left when he walks, no objective evidence.
h. Residuary urinary urgency and nocturia following removal of Foley catheter, etiology not clear.
5. Ongoing history of cigarette abuse.
6. Hypertension, not treated.
7. History of peptic ulcer diathesis.
AR 323. Dr. Craig Cade, M.D., provided a medical summary report concerning Estes on January 25, 2000. Dr. Cade indicated that Estes suffers from residual effects from his automobile accident. AR 350. Such effects are both mental and physical. AR 350. A renal sonogram was performed on January 24, 2000. AR 350. The sonogram revealed an obstruction of one kidney with progressive damage and a mass on the other kidney. AR 350. A CT scan of the abdomen was ordered. AR 350. The results of the CT revealed no mass on the lower pole of the right kidney. AR 358. No hydronephrosis was discovered on the left kidney. AR 358.
[¶5] A psychological review of Estes was performed by Dr. Frank Dame, Ph.D. AR 324-329. Dr. Dame's report, which is disputed by Estes and contradicted by Dr. Rosemary Webb of Indian Health Service, AR 348-49, finds that Estes has an alcohol dependency problem. AR 328. Dr. Dame's tests reveal that he is functioning at an average intellectual ability with no significant memory deficits. AR 328. Estes has strong language abilities and performs well on tasks requiring rapid learning and good sensory/motor coordination. AR 328. Dr. Dame was unable to discover any intellectual deficits. AR 328. Dr. Dame concludes that Estes suffers from no physical or psychological disorders that render him unemployable. AR 328.
[¶6] Contrary to the results found by Dr. Dame, Dr. Rosemary Webb finds indications that Estes has suffered brain damage resulting in poor motor coordination and poor motor control. AR 352. These symptoms may also be related to physiological tensions, according to Dr. Webb. AR 352. Additionally, Dr. Webb noted that Estes suffered from frustration and feelings of inferiority. AR 353. In Dr. Webb's opinion, Estes is not employable in his present state. AR 353.
[¶7] A Residual Functional Capacity Assessment ("RFC Assessment") was performed on June 24, 1999. AR 350. The assessment indicates that Estes can occasionally lift up to twenty pounds, can frequently lift ten pounds, can stand at least two hours in an eight-hour workday, can sit about six hours in an eight-hour workday, and that pushing and/or pulling is limited in both the upper and lower extremities. AR 331. The assessment also indicates that Estes should never climb, but can occasionally balance, stoop, kneel, crouch, and crawl. AR 332. Estes, according to the assessment, is limited in reaching in all directions, but is unlimited in handling (gross manipulation), fingering (fine manipulation), and feeling (skin receptors). AR 333. The assessment established no visual, communicative, or environmental limitations. AR 333-34.
[¶8] Estes underwent physical therapy performance testing at the Physical Therapy Clinic at the Rosebud Indian Health Services which is somewhat contradictory to the Residual Functional Capacity Assessment. AR 354. The test results indicate that Estes has limited motion and decreased hand dexterity due to the dysfunction of his right arm. AR 356. Hence, the report recommends that he does not perform any lifting activities or fine motor activities with his right upper extremity. AR 356. Additionally, the report recommended that pushing and pulling activities related to the right upper extremity should be avoided. AR 356. Estes is able to lift a small amount of weight with his left arm (ten pounds) but is unable to perform any fine motor coordination activities with his left arm. AR 356. This is due to the reduction, in capacity, of his right arm and the fact that he is right-handed. AR 356. Estes may manipulate objects larger than one centimeter. AR 356. Estes is able to walk short distances. AR 356. The report recommends that Estes not carry anything over ten pounds when walking. AR 356. The report also noted that as Estes progressed to more difficult tasks, he became irritable. AR 356.
[¶9] Estes's daily activities appear rather limited. He takes care of his dogs. AR 57. He does all his own housekeeping, including washing dishes and laundry, and does his own grocery shopping. AR 61, 163. Estes also must walk one hundred yards every day or so to get water, which he carries in two one-gallon water jugs. AR 58. Estes spends most of his time alone as he does not like to be around other people. AR 63.
[¶10] The ALJ used the sequential evaluation process (1) outlined in 20 CFR § 404.1520, which is required to determine whether an individual is disabled for purposes of the Social Security Act. First, the ALJ determined that Estes was not engaged in substantial gainful activity . AR 12.
[¶11] The ALJ then proceeded to the second step in the process, determining whether the alleged impairments are severe. AR 13. Having reviewed the medical evidence, the ALJ determined that the following impairments of Estes were, in fact, severe:
a closed supracondylar fracture of the right humerus (status post open reduction, internal fixation); a comminuted right tib/fib fracture (status post intramedullary rod placement, right tibia (1997); status post removal of distal locking screws (1997)); post-traumatic arthritic changes, right ankle, secondary to bimalleolar fracture; and a remote left ankle fracture with development of osteomyelitis (status post fusion).
AR 13. However, the ALJ determined that the following impairments were not severe:
hypertension, a closed head injury with open wound to forehead ... mid-line glabellar fracture, fracture of the sinus ... adult respiratory distress syndrome with need for tracheostomy, nonoliguric acute renal failure ... fractures of the right fourth through sixth posterior ribs with a small pneumothoroax, acute cholecuistis ... .
AR 13. The ALJ determined these were non-severe "either because they do not place even minimal limitations on claimant's ability to perform basic work activities or because they were not severe and/or not expected to be severe for a period exceeding 12 continuous months." AR 13 (citing 20 CFR § 416.921). The ALJ concluded, under the third step of the sequential process, that although Estes had severe impairments, the level of severity did not medically meet or equal the level of severity of any impairments listed in Appendix 1, Subpart P, Regulations No. 4. AR 13 (citing 20 CFR § 416.920(d)).
[¶12] After determining that Estes's medical impairments did not meet the regulatory requirements, the ALJ proceeded to determine whether Estes possessed the requisite overall residual functional capacity to perform past relevant work or other work existing in significant numbers in the national economy. AR 13. The ALJ conceded that if Estes's subjective complaints were believed, a finding of "disabled" may result. AR 15. After performing a thorough credibility analysis, see AR 15-20, the ALR did not accept Estes's subjective complaints of severe and disabling pain. AR 22.
[¶13] The ALJ found, under the fourth step of the sequential process, that Estes was unable to perform his past relevant work as a construction worker. AR 22. The other jobs performed by Estes were disregarded as they were not performed at the level of substantial gainful activity. AR 22.
[¶14] In determining whether Estes could perform other work existing in significant numbers in the national economy, the ALJ adopted the residual functional capacity evaluation by the Disability Determination Services as he found it consistent with the record. (2) AR 20. Based on Estes's residual functional capacity, and the testimony of the vocational expert, the ALJ determined that there were a significant number of jobs in the national economy which Estes would be able to perform. AR 22-23. Consequently, the ALR determined that Estes was not disabled as defined under the Social Security Act and therefore was not entitled to supplemental social security income under §§ 1602 and 1614(a)(3)(A) of the Social Security Act. AR 23.
[¶15] 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 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. 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).
[¶16] 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 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. See Smith v. Shalala, 987 F2d at 1374. In other words, "if after review, [the Court] finds it possible to draw two different inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, [the Court] must affirm the denial of benefits." Howard v. Massanari, 255 F3d 577, 581 (8th Cir. 2001) (citing Mapes v. Chater, 82 F3d 259, 262 (8th Cir. 1996) (citing Siemers v. Shalala, 47 F3d 299, 301 (8th Cir. 1995)).
[¶17] Estes presents five issues wherein he argues the ALJ committed reversible error. Plaintiff's Opening Brief (Plaintiff's Brief") at 20. Additionally, Estes raises the issue as to whether this Court should remand the case to the ALJ due to new and substantial evidence pursuant to 42 USC § 405(g). Id.
[¶18] Exclusion of Certain Impairments Claimed as Severe
[¶19] Section 416.921(a) of the Social Security regulations provides the definition of a severe impairment for purposes of the Social Security Act. "An impairment or combination of impairments is not severe if it does not significantly limit [the claimant's] physical or mental ability to do basic work activities." 20 CFR § 416.921(a). Basic work activities are defined as abilities and aptitudes necessary to do most jobs. 20 CFR § 416.921(b). Under the regulation's "duration requirement," the impairment must have lasted, or be expected to last, at least twelve continuous months. 20 CFR § 416.909. It is important to note that it is the disability which must meet the duration requirement, not the impairment. See Titus v. Sullivan, 4 F3d 590, 594 (8th Cir. 1993).
[¶20] Estes contends that the ALJ committed error when he did not find the following injuries severe: (1) closed head injury stemming from an automobile accident in 1998, resulting in current mental impairments allegedly manifested as social avoidance, irritability, and severe headaches; and (2) impingement syndrome of the right shoulder. Plaintiff's Brief at 21. Initially, it should be noted that Estes does not contest the ALJ's finding that he did not have an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1.
[¶21] Regarding the closed head injury, there is little evidence to suggest that the three-year- old injury is currently affecting Estes's mental abilities as required under 20 CFR § 416.909. On the contrary, the psychological evaluation performed on June 24, 1999, concluded only "slight" impairments and no severe impairments. AR 338-345.
[¶22] As to the alleged nerve impingement, assuming that a nerve impingement did exist, the record lacks evidence that the impingement would cause more limitation than already found by the ALJ. Cf. Howard v. Massanari, 255 F3d 577, 582 (8th Cir. 2001) (holding that while an ALJ "must set forth all the claimant's impairments [during a hypothetical question for an RFC determination], it need not use a specific diagnostic or symptomatic term where other descriptive terms can adequately define the claimant's impairments.") (quoting Roe v. Chater, 92 F3d 672, 676 (8th Cir. 1996)). The ALJ did address the issue of the nerve impingement. AR 18. However, the ALJ found the RFC Assessment, which diagnosed an impairment of the right elbow, AR 330-337, to be persuasive evidence and adopted it. AR 20. The physical therapy report was not found to be persuasive evidence and the ALJ therefore did not adopt it. AR 20. The RFC did note limited ability to push and/or pull in the upper extremities and limited ability to reach in all directions due to the right elbow. AR 331, 333.
[¶23] Estes suggests that the failure to address the nerve impingement prejudicially influenced the ALJ's assessment of credibility which would influence the determination of his RFC Assessment at step four of the sequential process. Plaintiff's Brief at 21. "Where adequately explained and supported, credibility findings are for the ALJ to make." Lowe v. Apfel, 226 F3d 969, 972 (8th Cir. 2000) (citing Tang v. Apfel, 205 F3d 1084, 1087 (8th Cir. 2000)). The Eighth Circuit, in Polaski v. Heckler, outlined the necessary steps an ALJ must take in determining the credibility of a claimant's subjective complaints. 739 F2d 1320, 1321-22 (8th Cir. 1984). Under Polaski, the ALJ:
must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant's 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 requirements.
The adjudicator is not free to accept or reject the claimant's subjective complaints solely on the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole.
Id. (emphasis in original). See also 20 CFR § 416.929(c)(3). The ALJ is not required to "discuss methodically each Polaski consideration, so long as he acknowledged and examined those considerations ... ." Lowe, 226 F3d at 972.
[¶24] "Pain is recognized as disabling when it is not remedial and precludes a claimant from engaging in any form of substantial gainful activity" Cruse v. Bowen, 867 F2d 1183, 1186 (8th Cir. 1989) (citations omitted). "The mere fact that working may cause pain or discomfort does not mandate a finding of disability." Id. (citations omitted). Importantly, "[w]here the record is inconsistent with a [claimant's] subjective complaints of pain, the ALJ may properly discount them. McKinney v. Apfel, 228 F3d 860, 864 (8th Cir. 2000). See also Brockman v. Sullivan, 987 F2d 1344, 1346-47 (8th Cir. 1993) (administrative law judge is justified in discounting a claimant's subjective complaints of pain if there are inconsistencies in the record as a whole).
[¶25] Here, the ALJ performed a credibility analysis. See AR 15-20. The ALJ found several inconsistencies in the testimony of Estes concerning his daily activities and his alleged impairments. The ALJ found the that Estes's claim of blurred vision and headaches occurring after fifteen to thirty minutes (3) of reading to be contradicted by the fact that he admitted to reading eight hours a day. AR 14, 16, 19. These alleged problems are not supported by any medical evidence. AR 323. The ALJ also found that the eight hours of reading contradicted Estes's claim of problems with memory and concentration. AR 16. Dr. Hoffsten also noted that Estes "seemed to remember quite well." AR 323. Additionally, the ALJ noted that Estes took care of his housekeeping, however limited, fed and watered his dog, did his own grocery shopping (which requires bending, lifting, carrying), did his own dishes and laundry, and carried two one-gallon jugs of water a hundred yards daily. AR 16, 57-58, 61. The ALJ determined that Estes's drinking of three pots of coffee a day, AR 57, is probably a major factor in his problem with frequent urination. AR 19. The ALJ determined that these daily activities contradicted Estes's subjective complaints. AR 16, 19. Thus, the ALJ found that Estes's daily activities were more consistent with the RFC assessment. AR 16.
[¶26] The ALJ also noted that the work history of Estes was intermittent. AR 15. Estes had made no reasonable attempts to seek employment since his accident. AR 15. Estes had admitted he had not registered at Job Service, Vocational Rehabilitation, or tribal employment programs. AR 15, 43-44. It should be noted that Estes had very limited significant work history for the past twelve years, a time even before his accident. See AR 119.
[¶27] The ALJ also found Estes's lack of seeking ongoing medical treatment was problematic for his credibility. AR 18. This lack of ongoing medical treatment, according to the ALJ, undermined Estes's testimony concerning severe and disabling pain. AR 18. Overall, given the review by Dr. Hoffsten, M.D., AR 320-23, Estes's work history, AR 119, and daily activities, AR 43-44, 56-58, 61, 63, the ALJ's credibility determination is supported by the evidence.
[¶28] Development of Medical Evidence
[¶29] Estes alleges, as a second point of error, that the ALJ failed in his duty to develop medical evidence. Plaintiff's Brief at 22. Estes correctly argues that the ALJ has a duty to develop additional evidence. See 20 CFR § 416.927(c)(3). However, '"[a]n ALJ is permitted to issue a decision without obtaining additional medical evidence so long as other evidence in the record provides a sufficient basis for the ALJ's decision."' Howard, 255 F3d at 581 (quoting Anderson v. Shalala, 51 F3d 777, 779 (8th Cir. 1995) (quoting Naber v. Shalala, 22 F3d 186, 189 (8th Cir. 1994))). See also 20 CFR § 416.927(c)(4) (stating that "[w]hen there are inconsistencies in the evidence that cannot be resolved ... we will make a determination or decision based on the evidence we have."). Estes cites to 20 CFR § 416.912(e), purporting that it requires the ALJ, under these circumstances, to develop the evidence from the claimant's medical source. Plaintiff's Brief at 23. However, § 416.912(e) requires such action only if there is "a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable ... techniques." 20 CFR § 416.912(e)(1). Here, the ALJ had all the information necessary, and required under Howard, to make its findings. The ALJ had and used the evidence provided by the Dr. Hoffsten, AR 320-323, Dr. Dame, AR 324-329, the DDS's RFC Assessment, AR 330-337, a Psychiatric Review Report, AR 338-346, and the reports from Indian Health Services, AR 347-356, along with other miscellaneous medical evidence. There was ample evidence to support the ALJ's decision. Thus, § 416.12(e) is inapplicable.
[¶30] Legal Standard for Weighing Non-Examining Physician Evidence
[¶31] Estes contends that the ALJ erred by giving undue weight to a non-treating physician's opinion and by not giving sufficient weight to an opinion of a physical therapist in determining Estes's RFC. Plaintiff's Brief at 24-25. The ALJ is to apply the rules stated in paragraphs (a) through (e) of 20 CFR § 416.927 in weighing the opinions of non-examining sources. 20 CFR § 416.927(f). In addition, the ALJ "must consider findings of State agency medical and psychological consultants or other program physicians or psychologists as opinion evidence, except for the ultimate determination whether [the claimant] is disabled ... using relevant factors in paragraphs (a) through (e) of [§ 416.927] ... ." 20 CFR § 416.927(f)(2)(i) and (ii). The ALJ has complied with these regulatory requirements. See AR 16-20. The fact that the non-examining physician was not a treating source is a factor, but is not dispositive. See 20 CFR § 416.927.
[¶32] Estes's real issue of contention appears to be that the ALJ gave more weight to the findings of the Disability Determination Services ("DDS") than Estes's physical therapist. Plaintiff's Brief at 24-25. The pertinent regulation defines medical opinions as "statements from physicians and psychologists or other acceptable medical sources ... ." 20 CFR § 416.927(a)(2). Acceptable medical sources are defined as licensed physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language pathologists. 20 CFR §§ 404.1513(a), 416.913(a). As physical therapists are not listed as acceptable medical sources, the ALJ was not required to accept the therapist's findings or give the findings any weight whatsoever. Nevertheless, the ALJ did review the findings and found that the sixty-minute examination, compared to a customary two-day examination, was not persuasive. AR 20.
[¶33] Formulation of Residual Functional Capacity
[¶34] The fourth issue before this Court is whether the ALJ erred by failing to comply with the directives of SSR 96-8p. Plaintiff's Brief at 26. This argument constitutes a return to the first and third issue presented by Estes. Estes argues that the ALJ should have developed the medical evidence further and take into account the alleged organic mental impairment, the nerve impingement, frequency of urination, and complaints of severe headaches. Id. at 26-27. As already noted, the ALJ performed a credibility analysis where he determined Estes's subject complaints lacked credibility. AR 15-20. Also, as stated above, the ALJ complied with the regulatory requirements governing the duty to develop additional evidence. Finally, the ALJ did, in fact, address these issues in his first hypothetical question to the Vocational Expert ("VE"): "For my first hypothetical assume I find fully credible the claimant's testimony at this hearing... ." AR 80.
[¶35] Discrepancies between the Vocational Expert and the Dictionary of Occupational Titles
[¶36] Estes next argues that the Court erred in not explaining the discrepancies between the RFC, the jobs identified by the VE, and the Dictionary of Occupational Titles ("DOT"). Plaintiff's Brief at 27. While it is true that, under Eighth Circuit case law, when there is a conflict in the testimony of a vocational expert and the DOT, the DOT controls, see Smith v. Shalala, 46 F3d 45, 47 (8th Cir. 1995), the testimony in this case is reconcilable with the DOT. The DDS assessment, which the ALJ adopted, states that Estes has an unlimited ability for handling (gross manipulation), fingering (fine manipulation), and feeling (skin receptors). AR 333. Although the report indicates Estes has limited ability to reach in all directions, the examiner notes that Estes could "still reach-only minimally limited in how far he could reach. Should still be able to perform frequent reaching required for teacher[']s aid job." AR 333. As for exertional limitations, the RFC determined that Estes can occasionally lift twenty pounds, frequently lift ten pounds, stand at least two hours in a eight-hour work day and sit about six hours in a eight-hour work day. AR 331. Estes does have limited ability to push and/or pull in the upper and lower extremities. AR 331. Further, Estes has no visual, communicative or environmental limitations. AR 333-334.
[¶37] Based on the testimony of the vocational expert, AR 80-84, the ALJ found that Estes could perform the following jobs: "sedentary bench assembler positions including positions in jewelry assembly... small product assembler... electric wire worker... telemarketer positions... and [certain] cashier positions... ." AR 23. The relevant physical requirements for a wireworker include: frequent reaching, frequent handling, and frequent fingering. See Plaintiff's Exhibit C at 2. As stated above, Estes is unlimited in his ability to handle and finger and only "minimally" limited in his ability to reach with his right extremity. See AR 333. Thus, Estes is physically able to perform this job. See AR 333. The relevant physical requirements for an assembler include: constant handling and reaching and frequent fingering. Plaintiff's Exhibit C at 3. Although this is perhaps a closer case, Estes's right (not left) upper extremity is merely "minimally" limited in reaching, Estes should be able to perform the reaching required, at least with his left upper extremity. AR 333. The relevant physical requirements for the position of an assembler, small product I, include frequent reaching, handling, and fingering. As stated above, according to Estes's RFC Assessment, he is able to perform these tasks. See AR 333. The telemarketing position requires the following pertinent physical requirements: occasional reaching and handling and frequent fingering. Plaintiff's Exhibit C at 6. The DOT also states that the position requires level three reasoning, level three math, reading and writing skills. Plaintiff's Exhibit C at 5-6. As discussed above, Estes is capable of meeting the physical requirements of this position. See AR 333. Additionally, although some rudimentary reading, writing, and math skills are required, Estes's college background certainly affords him the ability to read, write and perform rudimentary mathematical operations. See AR 39. Additionally, the VE stated that the telemarketing positions in the region require one only to "hunt and peck with [a] keyboard" and talk on the phone. AR 82. The ALJ also found that Estes could work as a cashier. AR 23. The VE noted that there were probably 900 to 1,000 cashier positions which would allow Estes to sit. AR 82. The relevant physical requirements for a cashier II position include frequent reaching, handling, and fingering. Plaintiff's Exhibit C at 8. As discussed above, Estes has the ability to meet these requirements. See AR 333. Finally, it should be noted that the subjective complaints that Estes claims would hinder him were discredited in the ALJ's credibility analysis. See AR 15-20.
[¶38] New and Material Evidence
[¶39] Estes argues that this Court should remand the case back to the administrative level for consideration of new and material evidence. Plaintiff's Brief at 29-30. The alleged new and material evidence consists of: (1) correspondence written on behalf of Estes by Dr. Web, Ph.D., to the Appeals Council, dated September 5, 200, Plaintiff's Exhibit A-1; (2) a neuropsychological evaluation report, Plaintiff's Exhibit A-2; and (3) a medical source statement, Plaintiff's Exhibit A-3.
[¶40] Section 405(g) of Title 42 provides, in pertinent part: "The court may, ... at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 USC § 405(g). Evidence is considered "new and material" if it is "non-cumulative, relevant, and probative of the claimant's condition for the time period for which benefits were denied." Jones v. Callahan, 122 F3d 1148, 1154 (8th Cir. 1997) (citing Woolf v. Shalala, 3 F3d 1210, 1215 (8th Cir. 1993)). "Furthermore, it must be reasonably likely that the Commissioner's consideration of this new evidence would have resulted in an award of benefits." Jones, 122 F3d at 1154 (citing Wolf, 3 F3d at 1215).
[¶41] Estes filed a request for an Appeals Council review on April 25, 2000. AR 6. The form he used stated the following requirement quite clearly: "[a]ny additional evidence which you wish to submit must be either attached to this form or forwarded within 15 days to the Appeals Council ... ." AR 6 (emphasis added). The additional evidence upon which Estes seeks remand was submitted, if at all, on September 5, 2000. See Exhibits A-1 to A-3. Estes clearly missed the 15-day deadline outlined in the application form. See AR 6.
[¶42] Estes must show good cause why this action should be remanded for further consideration. 42 USC § 405(g). Estes argues that his lack of legal representation, the alleged backlog of appeals, and a customary 45-day extension, if requested by other claimants' legal representatives, is excuse enough for Estes's delay. See Reply Brief at 2. However, Estes was represented by a lay representative. AR 31. The fact that Estes did not seek legal representation until a later date does not excuse him from complying with the deadline of which he had actual notice. The fact that the Appeals Council may be backlogged, taking 24 months to decide a case, provides no excuse for Estes not to file his new evidence within the time line required. Estes was aware of the deadline and missed it. As there is no good cause for the failure of Estes to present the evidence to the Appeals Council in due time, this Court need not address whether the evidence is "new and material" such that it would reasonably resulted in an award of benefits.
[¶43] Based on a review of the entire record, the foregoing discussion and citation of legal authority, it is hereby
[¶44] ORDERED that the Plaintiff's motion for summary judgment (Docket #14) is denied. The decision of the Commissioner is affirmed. Judgment shall be issued in favor of the Commissioner.
1. The five-step sequential evaluation process is as follows:
(1) If the claimant is working and such work is substantial gainful activity, the claimant is not deemed disabled for purposes of the Social Security Act;(2) The claimant must have a severe impairment(s) which is an impairment that significantly limits the claimant's physical or mental ability to do basic work activities;
(3) If the impairment(s) either meets or equals one of the listed impairments found in 20 CFR Part 404, Subpart P, Appendix 1, and meets the duration requirement, the claimant will be found to be disabled without considering the claimant's age, education, and work experience;
(4) The impairment(s) must prevent the claimant from doing past relevant work. If such a conclusion cannot be made based upon the claimant's current work activity, then the ALJ reviews the claimant's residual capacity and the physical and mental demands of the claimant's former employment activities. If the ALJ determines that the claimant can still do past relevant work, then the claimant is not disabled for the purposes of the Social Security Act; and
(5) The impairment(s) must also prevent the claimant from doing any other work. However, "if [the claimant has] only a marginal education, and long work experience (i.e., 35 years or more) where [the claimant] did only arduous unskilled physical labor, and [the claimant] can no longer do this kind of work, [a different rule is used] (see § 404.1562).
20 CFR § 404.1520. See also Howard v. Massanari, 255 F3d 577, 581 (8th Cir. 2001) (acknowledging the five-step sequential evaluation process of 20 § CFR 404.1520). If the ALJ can determine that the claimant is, or is not, disabled at any point in the sequential process, no further review under the sequential process is required. See 20 CFR § 404.1520.
2. The ALJ found the recommendations of a physical therapist, AR 354, unpersuasive as the examination was performed in 60 minutes as opposed to the customary two-day Functional Capacities Evaluations. AR 20. Additionally, the ALJ found the results of this evaluation to be factually inconsistent with Estes's daily activities. AR 20.
3. Estes's testimony at the hearing, however, indicates that he has problems with blurred vision and headaches after "fifty minutes to a half an hour." AR 40.