Opinion
Civil No. 02-4801 (JRT/JSM).
February 10, 2004
REPORT AND RECOMMENDATION
The above matter is before the undersigned United States Magistrate Judge on plaintiff's Motion for Summary Judgment [Docket No. 20] and defendant's Motion for Summary Judgment [Docket No. 22]. This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation by the District Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c).
For the reasons discussed below, it is recommended that the plaintiff's Motion for Summary Judgment be granted in part and denied in part; that the defendant's Motion for Summary Judgment be denied; and that the decision of the Administrative Law Judge be vacated and the case be remanded for further administrative proceedings consistent with this Report and Recommendation.
I. FACTUAL BACKGROUND
Plaintiff's application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 416, 423, was filed on April 6, 2001. Tr. 54. Plaintiff claims he became disabled as of November 3, 1998, due to back, neck and leg pain. Tr. 54, 90.
The Social Security Administration ("SSA") denied plaintiff's application initially and upon reconsideration. Tr. 30-39. Plaintiff filed a request for a hearing and on April 1, 2002, a hearing was held before Administrative Law Judge ("ALJ") Diane Townsend-Anderson. Tr. 15. Testimony was taken at the hearing from plaintiff, Rene Snyder ("Ms. Snyder"), plaintiff's wife, neutral medical expert ("ME") Andrew Steiner, M.D., and neutral vocational expert ("VE") Wayne Onken. Tr. 15. On July 3, 2002, the ALJ issued a decision to deny plaintiff benefits. Tr. 22. Plaintiff filed a Request for Review of the ALJ's decision with the Appeals Council. Tr. 10. The Appeals Council extended the time for plaintiff to submit evidence that was both new and material. Tr. 9. Ultimately, the Appeals Council denied plaintiff's request for review and upheld the ALJ's decision denying benefits to plaintiff, making the ALJ's findings the final decision of defendant. Tr. 6-7. See 42 U.S.C. § 405(g).
Plaintiff sought review of the ALJ's decision by filing the instant action with this Court pursuant to 42 U.S.C. § 405(g). The matter is now before the Court on Plaintiff's Motion for Summary Judgment [Docket No. 20] and Defendant's Motion for Summary Judgment [Docket No. 22].
II. PROCESS FOR REVIEW
Congress prescribed the standards by which Social Security disability benefits may be awarded: "[t]he Social Security program provides benefits to people who are aged, blind, or who suffer from a physical or mental disability." 42 U.S.C. § 1382(a); Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992). The Social Security Administration shall find a person disabled if the claimant "is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 42 U.S.C. § 1382c(a)(3)(A). The claimant's impairments must be "of such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B). The impairment must last for a continuous period of at least twelve months or be expected to result in death. 42 U.S.C. § 1382c(a)(3)(A); see also 20 C.F.R. § 404.1509, 416.909.
A. Administrative Law Judge Hearing's Five-Step Analysis
If a claimant's initial application for benefits is denied, he or she may request reconsideration of the decision. 20 C.F.R. § 404.909(a)(1), 416.1409(a). A claimant who is dissatisfied with the reconsidered decision may obtain administrative review by an ALJ. 42 U.S.C. § 405(b)(1), 1383(c)(1); 20 C.F.R. § 404.929., 416.1429, 422.201 et seq. To determine the existence and extent of a claimant's disability, the ALJ must follow a five-step sequential analysis, requiring the ALJ to make a series of factual findings regarding the claimant's work history, impairment, residual functional capacity, past work, age, education, and work experience. See 20 C.F.R. § 404.1520, 416.920; see also Locher, 968 F.2d at 727. The Eighth Circuit described this five-step process in Morse v. Shalala, 16 F.3d 865, 871 (8th Cir. 1994) as follows:
The first step asks if the claimant is currently engaged in substantial gainful employment. If so, the claimant is not disabled. If not, the second step inquires if the claimant has an impairment or combination of impairments that significantly limits the ability to do basic work activities. If not, the claimant is not disabled. If so, the third step is whether the impairments meet or equal a listed impairment; if they do, the claimant is disabled. The fourth step asks if the claimant's impairments prevent her from doing past relevant work. If the claimant can perform past relevant work, she is not disabled. The fifth step involves the question of whether the claimant's impairments prevent her from doing other work. If so, the claimant is disabled.
B. Appeals Council Review
If a claimant is dissatisfied with the ALJ's decision, he or she may request review by the Appeals Council, though review is not automatic. 20 C.F.R. § 404.967-404.982, 416.1467-416.1482. The decision of the Appeals Council, or of the ALJ if the request for review is denied, is final and binding upon a claimant unless the matter is appealed to Federal District Court within 60 days of notice of the Appeals Council's action. 42 U.S.C. § 405(g), 1383(c)(3); 20 C.F.R. § 404.981, 416.1481.
C. Judicial Review
Judicial review of the ALJ's decision generally proceeds by considering the decision of the ALJ at each of the five steps. The Court is required to review the administrative record as a whole and consider:
1. The credibility findings made by the ALJ.
2. The plaintiff's vocational factors.
3. The medical evidence from treating and consulting physicians.
4. The plaintiff's subjective complaints relating to exertional and non-exertional activities and impairments.
5. Any corroboration by third parties of plaintiff's impairments.
6. The testimony of vocational experts, when required, which is based upon a proper hypothetical question which sets forth plaintiff's impairments.Cruse v. Bowen, 867 F.2d 1183, 1185 (8th Cir. 1989) (citingBrand v. Secretary of HEW, 623 F.2d 523, 527 (8th Cir. 1980)).
The review by this Court is limited to a determination of whether the decision of the ALJ is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Johnson v. Apfel, 210 F.3d 870, 874 (8th Cir. 2000);Clark v. Chater, 75 F.3d 414, 416 (8th Cir. 1996); Murphy v. Sullivan, 953 F.2d 383, 384 (8th Cir. 1992). "We may reverse and remand findings of the Commissioner only when such findings are not supported by substantial evidence on the record as a whole."Buckner v. Apfel, 213 F.3d 1006, 1012 (8th Cir. 2000).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotingConsolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)); see also Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994). "`Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion.'" Buckner, 213 F.3d at 1012 (quoting Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000));see also Cox v. Apfel, 160 F.3d 1203, 1206-07 (8th Cir. 1998) (same).
In reviewing the record for substantial evidence, the Court may not substitute its own judgment or findings of fact for that of the ALJ. Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). "It is not my job to decide the facts anew, reweigh the evidence, or substitute my judgment for that of the Commissioner. In this regard, I `must consider both evidence that supports and evidence that detracts from the Secretary's decision, but may not reverse merely because substantial evidence exists for the opposite decision.'" Callison v. Callahan, 985 F. Supp. 1182, 1186 (D. Neb. 1997) (citations omitted).
The possibility that the Court could draw two inconsistent conclusions from the same record does not prevent a particular finding from being supported by substantial evidence.Culbertson, 30 F.3d at 939. The Court should not reverse the Commissioner's finding merely because evidence may exist to support the opposite conclusion. INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1 (1992); Buckner, 213 F.3d at 1011 (8th Cir. 2000); Mitchell v. Shalala, 25 F.3d 712, 714 (8th Cir. 1994). Instead, the Court must consider "the weight of the evidence in the record and apply a balancing test to evidence which is contradictory." Gavin v. Apfel, 811 F.2d 1195, 1199 (8th Cir. 1987).
A claimant bears the burden of proving his or her entitlement to disability insurance benefits under the Social Security Act.See 20 C.F.R. § 404.1512(a), 416.912(a); Thomas v. Sullivan, 928 F.2d 255, 260 (8th Cir. 1991). Once a claimant has demonstrated that he or she cannot perform prior work due to a disability, the burden of proof shifts to the Commissioner to show that the claimant can engage in some other substantial, gainful activity. Martonik v. Heckler, 773 F.2d 236, 238 (8th Cir. 1985).
III. DECISION UNDER REVIEW
A. ALJ's Findings of Fact
Plaintiff was considered a "younger person" during the period of time contemplated by the ALJ. Tr. 21 (citing 20 C.F.R. § 404.1563). The highest grade level completed by plaintiff was the tenth grade in high school. Tr. 96. Plaintiff alleges he became disabled and unable to work because of back, neck and leg pain. Tr. 90.
The ALJ concluded that plaintiff was not entitled to disability insurance benefits under §§ 216(i) and 223 of the Social Security Act. Tr. 22. The ALJ based this decision on the following findings:
1. The claimant meets the nondisability requirements for a period of disability and Disability Insurance Benefits set forth in section 216(i) of the Social Security Act and is insured for benefits through the date of this decision.
2. The claimant has not engaged in substantial gainful activity since the alleged onset of disability.
3. The claimant has an impairment or combination of impairments considered `severe' based on the requirements in the Regulations 20 C.F.R. § 404.1520(b).
4. These medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4.
5. The undersigned finds that the claimant's allegations regarding his limitations are not totally credible for the reasons stated forth in the body of the decision.
6. The undersigned has carefully considered all of the medical opinions in the record regarding the severity of the claimant's impairments ( 20 C.F.R. § 404.1527).
7. The claimant has the following residual functional capacity: stand and walk for 6 hours in an 8-hour workday. Lift and carry up to 20 pounds at a time and ten pounds frequently. Claimant may not perform repetitive rotation fix/flex of neck. He may not perform repetitive fine fingering or gripping. No exposure to extremes of temperature, or humidity, and he may not climb ladders ropes of scaffolds. He may not work at hazardous heights. He may occasionally bend, stoop, crouch, crawl, twist, bend or reach overhead.
8. The claimant is unable to perform any of his past relevant work ( 20 C.F.R. § 404.1565).
9. The claimant is a `younger individual between the ages of 18 and 44' ( 20 C.F.R. § 404.1545).
10. The claimant has a `limited education.' 20 C.F.R. § 404.1564.
11. The claimant has no transferable skills from any past relevant work and/or transferability of skill is not an issue in this case ( 20 C.F.R. § 404.1568).
12. The claimant has the residual functional capacity to perform a significant range of light work ( 20 C.F.R. § 416.967).
13. Although the claimant's exertional limitations do not allow him to perform the full range of light work, using the Medical Vocational Rule 202.17 as a framework for decision making, there are a significant number of jobs in the national economy that he could perform. Examples of such jobs include work as an assembler, with 2,000 jobs; hand packager, with 3,000 job[sic], cashier II with 5,000 jobs, parking lot attendant, with 7,000 jobs.
14. The claimant was not under a `disability,' as defined in the Social Security Act, at any time through the date of this decision ( 20 C.F.R. § 404.1520(f)).
Tr. 21-22.
B. ALJ's Application of the Five-Step Process
The ALJ made the following determinations under the five-step procedure. At the first step, the ALJ concluded that plaintiff had not engaged in any substantial gainful activity since the alleged onset of disability and, therefore, plaintiff's application for benefits could not be denied because of work experience. Tr. 16. At the second step, the ALJ found that plaintiff had reflex sympathetic dystrophy, degenerative disc disease and headaches, which are severe impairments Tr. 16-17. At the third step, the ALJ determined that the record did not establish that plaintiff was subject to any impairment or combination of impairments that meets or equals the requirements of the Listing of Impairments in Appendix 1, Subpart P, Regulation No. 4. Tr. 17. At the fourth step, the ALJ found that plaintiff did not have the residual functional capacity ("RFC") to perform his past relevant work. Tr. 19. At the fifth step, the ALJ determined that plaintiff had the RFC to perform a significant number of jobs existing in the national economy. Tr. 20.
Reflex Sympathetic Dystrophy: "Diffuse persistent pain usually in an extremity often associated with vasomotor disturbances, trophic changes, and limitation or immobility of joints; frequently follows some local injury." See STEADMAN'S ONLINE MEDICAL DICTIONARY, at http://www.stedmans.com/section. cfm/45.
IV. ISSUES UNDER REVIEW
Once it has been determined that a claimant cannot perform past relevant work, step five of the sequential analysis requires the ALJ to consider whether the claimant's RFC or range of work abilities enables him or her to perform alternative work. In the present case, the ALJ determined that plaintiff maintained the following RFC:
The claimant has the following residual functional capacity: stand and walk for 6 hours in an 8-hour workday. Lift and carry up to 20 pounds at a time and ten pounds frequently. Claimant may not perform repetitive rotation fix/flex of neck. He may not perform repetitive fine fingering or gripping. No exposure to extremes of temperature, or humidity, and he may not climb ladders ropes of scaffolds. He may not work at hazardous heights. He may occasionally bend, stoop, crouch, crawl, twist, bend or reach overhead.
Tr. 21.
Plaintiff disagrees with this RFC determination. On appeal, plaintiff contends the ALJ committed the following errors in determining he has the RFC to perform other work: First, the ALJ erred in failing to accept the opinions of plaintiff's treating physician. Second, the ALJ erred in discounting plaintiff's subjective testimony. Third, the ALJ relied on vocational expert testimony that was based on flawed hypotheticals. This Court's task is to determine whether the ALJ's determination regarding plaintiff's RFC is supported by substantial evidence appearing on the record as a whole.
A. Opinion of Treating Physician
The social security regulations provide that "a treating physician's opinion regarding an applicant's impairment will be granted `controlling weight,' provided the opinion is `well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.'" Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000) (quoting 20 C.F.R. § 404.1527(d)(2)) (concluding that the ALJ was correct in not giving controlling weight to a treating physician's opinion where such opinion was unsupported by clinical signs and inconsistent with the physician's own prior evaluations). Absent these two requirements, the ALJ need not accord controlling weight to a treating physician's opinion and the ALJ may not give a treating physician's opinion controlling weight based solely on the fact that he or she is a treating physician. Id. at 1013; see also Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997) (finding that an ALJ may discount a treating physician's medical opinion when the treating source's statements are conclusory or unsupported by medically acceptable clinical or diagnostic data);Ward v. Heckler, 786 F.2d 844, 846 (8th Cir. 1986) (same).
Plaintiff maintains that the "ALJ erred in her medical analysis by failing to give due weight to the opinion of Plaintiff's treating physician and by failing to provide any rationale from the medical evidence of record to discount Dr. Trobiani's part-time restriction." See Plaintiff's Memorandum in Support of Plaintiff's Motion for Summary Judgment ("Pl.'s Memo."), at p. 13. At issue, in part, are the restrictions placed on plaintiff by Dr. Trobiani in a letter dated January 21, 2000:
As a consequence of the motor vehicle accidents of March 16, 1998 and November 3, 1998, Mr. Snyder is presently restricted from prolonged, painful posturing of the head and neck. He is restricted from repetitive bending, stooping, twisting, crouching, squatting, kneeling, pushing and pulling. He is to avoid all running, jumping and climbing. He is restricted from lifting and carrying in excess of 20 pounds from floor to shoulder and 10 pounds overhead. He is to avoid all activity which would transmit significant vibratory force to the axial spine. Such activities include horseback riding, jet skiing, water skiing, snowmobiling, jogging, high impact aerobics, etc. These restrictions apply both occupationally and recreationally and are permanent. As a consequence of these restrictions, it is my opinion that Mr. Synder is presently unemployable. I do not believe that he will be capable of returning to any but sedentary work. Tr. 199. Similar restrictions were also stated by Dr. Trobiani in an April 3, 2000 note in which he released plaintiff to sedentary work. Tr. 195.
The ALJ declined to give the opinion of Dr. Trobiani controlling weight for several reasons. Tr. 18. First, the ALJ found that opinion rendered by Dr. Trobiani was over a year old and that the subsequent records indicated plaintiff had not received treatment related to back pain. Id. Second, the ALJ noted that "even at the time the physician offered his opinion there was not substantiating medical evidence for the level of restrictions imposed by the physician." Id. Third, the ALJ stated that based upon the entire medical record, the medical expert, concluded that plaintiff would be capable of light work with some restrictions. Id.
For starters, "[s]tatements that a claimant could not be gainfully employed `are not medical opinion but opinions based on the application of the statute, a task assigned solely to the discretion of the [Commissioner].'" Krogmeier v. Barnhart, 294 F.3d 1019, (8th Cir. 2002) (quoting Cruze v. Chater, 85 F.3d 1320, 1325 (8th Cir. 1996), quoting Nelson v. Sullivan, 946 F.2d 1314, 1316 (8th Cir. 1991)). See also 20 C.F.R. § 404.1527(e) (stating "[a] statement by a medical source that you are `disabled' or `unable to work' does not mean that we will find that you are disabled"). Consequently, Dr. Trobiani's opinion that plaintiff is unemployable is not entitled to controlling weight.
As for the restrictions placed on plaintiff, this Court finds that based on the record as a whole, the ALJ accorded the proper weight to the opinions of Dr. Trobiani.
On March 17, 1998, plaintiff was in involved in a motor vehicle accident in which he was rear-ended at about 30-35 miles per hour. Tr. 160. Plaintiff was diagnosed with a cervical sprain secondary to motor vehicle accident. Id.
On November 3, 1998, plaintiff was involved in another automobile accident. Tr. 162. Dr. J. Robinson examined plaintiff after the second accident. His report stated that plaintiff's chest and upper extremities to be stable, that he had no tenderness in his lower extremities, and his tibial spine was intact without any undue tenderness. Tr. 163. Plaintiff did not complain of weakness, numbness or tingling. Id. Dr. Robinson also noted that plaintiff's cervical spine was clear and the lumbrosacrol spine film only showed "some anterior spurring" of the L3 which appeared to be from an old injury.
Lumbrosacrol: "Relatiing to the lumbar vertebrae and the sacrum." STEADMAN'S MEDICAL DICTIONARY (2000).
On November 4, 1998, Dr. Kurt K Scheurer ("Dr. Scheurer") examined X-rays taken of plaintiff's back. Tr. 166. Dr. Scheurer noted mild degenerative changes of the L3-4 disc space with some early spur formation at L-4, with the remainder of the lumbar spine appearing within normal limits. Id. Mild scoliosis of the lumbar was also noted to be present. Id. The cervical spine was negative. Id.
Spur: "A dull spine or projection from a bone." STEADMAN'S MEDICAL DICTIONARY (2000).
On November 5, 1998, plaintiff was seen by Dr. Trobiani who opined that the plaintiff appeared to be suffering from a probable aggravation of prior cervical discogenic pain syndromes and bilateral C2-3 and C3-4 facet athropathies. Tr. 219. A motor examination showed 5/5 strength in plaintiff's upper and lower extremities. Id Plaintiff also displayed normal coordination and gait. Id. A sensory examination showed a decrease to pin the right side of the body relative to the left, but that touch, vibration, position, double simultaneous stimulation, stereognosis and graphesthesia were normal. Id.
Discogenic: "Denoting a disorder originating in or from the invertebral disk." STEADMAN'S MEDICAL DICTIONARY (2000).
Facet: "Small smooth area on a bone. . . ." STEADMAN'S MEDICAL DICTIONARY (2000).
Athropathy: "Any disease affecting a joint." STEADMAN'S MEDICAL DICTIONARY (2000).
Stereognosis: "Appreciation of the form of an object by means of touch." STEADMAN'S MEDICAL DICTIONARY (2000).
Graphesthesia: "Tactual ability to recognize writing on the skin." STEADMAN'S MEDICAL DICTIONARY (2000).
During a follow-up visit on November 19, 1998. Dr. Trobiani noted that an MRI indicated minor annular bulging at L4-5 without central disc herniation and indication of a left foraminal herniation. Tr. 218. The MRI of plaintiff's cervical spine indicated mild central bulging at the disc at C5-6 and mild posterior annular disease and minimal annular bulging at C3-4, C4-5 and C6-7. Id.
Herniation: "Protrusion of anatomic structure from its normal anatomic position." STEADMAN'S MEDICAL DICTIONARY (2000).
On January 7, 1999, plaintiff went see Dr. Bruce J. Bartie, upon request for an evaluation by Dr. Trobiani regarding his back pain. Tr. 167-168. The examination showed that plaintiff a moderate amount of paravertabral spasm with no radicular finding in the legs. Id. The examination also showed limited lumbar flexibility. Id. There was no evidence of atrophy or weakness and plaintiff could toe stand, heel stand and do a deep knee squat. Id. It was Dr. Bartie's opinion that plaintiff could participate in an active therapy program with resistance exercises and a range of motion exercises on gym equipment. Id. However, Dr. Bartie did not believe that plaintiff needed any surgical intervention. Tr. 168-69.
Paravertabral: "Alongside a vertebra or the vertebral column." STEADMAN'S MEDICAL DICTIONARY (2000).
Dr. Trobiani, in his January 20, 1999 note, stated that a Dr. Bartie did not feel that plaintiff's condition was severe enough to warrant any surgical intervention. Tr. 217. On March 4, 1999, Dr. Trobiani noted that because plaintiff continued to complain of neck and back pain, despite physical therapy, he requested an evaluation with a Dr. Sunny Kim, ("Dr. Kim"), for a surgical evaluation. Tr. 216. On March 11, 1999, plaintiff was examined Dr. Kim, a physician with the Institute for Low Back and Neck Care. This examination revealed that plaintiff was in no acute distress. Tr. 170. Plaintiff displayed a limited range of motion of his neck but a good range of his shoulder without pain, bilateral symmetric reflexes in his upper and lower extremities, intact strength, and good pulses. Tr. 170-171. Plaintiff was diagnosed with soft-tissue whiplash style type of injury to the cervical and lumbar range. Tr. 171. In addition, Dr. Kim reviewed the MRI scan of the cervical spine and lumbar spine, and stated:
There is slight dehydration of the L4-L5 disc. There is no focal disc herniation or neural impingement. I do not think there is any significant L4 nerve root impingement and if there was, this is not consistent with the patient's pain pattern into the left leg wherein the pain radiates posteriorly from the back onto the posterior buttock, posterior thigh, into the leg.Id. Dr. Kim did not believe plaintiff was a good candidate for surgery. Id.
On March 26, 1999, a Dr. David Nelson, M.D. ("Dr. Nelson") examined plaintiff and noted that there was some diminution of sensation to his right arm versus the left to a pinprick but that this difference was subtle. Tr. 174. Dr. Nelson also found plaintiff's motor function in his upper extremities to be normal for his age and physical condition. Id.
On April 29, 1999, plaintiff saw Dr. Trobiani again, complaining of increased cervical pain. Tr. 213. Dr. Trobiani noted some limitations in plaintiff's range of motion, but stated that his strength was full in both upper extremeties, and his reflexes were equal. Id. Based on his worsening pain and decreased range of motion, Dr. Trobiani ordered another MRI of plaintiff's cervical spine. Id.
Plaintiff again consulted with Dr. Trobiani regarding his cervical and lumbar pain on May 12, 1999. Tr. 212. Dr. Trobiani made reference to a MRI scan taken of plaintiff on May 5, 1999. He noted that there was no significant change in the cervical spine from the MRI scans taken on November 11, 1998. Id. The report also indicated that plaintiff's neck pain had improved but that plaintiff was still experiencing significant neck and back pain as to prevent him from returning to work. Id. Dr. Trobiani recommended that plaintiff attend a chronic pain program and that plaintiff follow-up with him on an as-needed basis. Id. On September 2, 1999, plaintiff returned to Dr. Trobiani complaining that the chronic pain program only increased his lower lumbar pain. Tr. 211. Dr. Trobiani referred plaintiff to the Sister Kenny Institute for actual chronic pain program in order to learn coping mechanisms for his pain. Id.
Plaintiff's next contact with Dr. Trobiani was on March 22, 2000, over six months after his last visit on September 2, 1999. Tr. 196. Plaintiff went to see Dr. Trobiani due to increased pain in his lumbar region and burning pain in both of his feet. Id. The examination of plaintiff revealed marked spasm to the lumbar spine, positive straight leg raising with pain, full strength, and equal reflexes. Id. Dr. Trobiani recommended that a MRI scan be taken of plaintiff's lumbar region. Id. In the interim, Dr. Trobiani stated that plaintiff should remain off work. Id.
On April 3, 2000, Dr. Trobiani noted the MRI taken on March 28, 2000, showed mild disc hydration with mild disc space narrowing at L4-5 with a high signal intensity left annular tear, but without disc herniation. Tr. 195. The doctor also noted that there had been no significant change from the MRI taken in November 1998. Id. In addition, Dr. Trobiani stated that plaintiff had not gone to Sister Kenny Institute for treatment as recommended due to childcare issues. Id. In this report, Dr. Trobiani released plaintiff to sedentary work with the following restrictions:
He is restricted from repetitive bending, stooping, twisting, crouching, squatting, kneeling, pushing and pulling. He is restricted from lifting and carrying of any weights in excess of 20 pounds. He is to vary his positions as needed between sitting, standing, and walking. He is to avoid all running, jumping and climbing. He is also to avoid any activity which would transmit significant vibratory force to the axial spine.Id.
May 17, 2001, plaintiff was seen at Ellingson Chiropractic Sports Injuries Rehabilitation for an evaluation related to his previous motor vehicle accidents. Tr. 180-185. The report of this evaluation stated that the "physical findings revealed further decrease in cervical and lumbar range of motion, increased muscle spasm, and myofascial involvement noted throughout the previously mentioned muscular regions." Tr. 182. The report also noted that x-rays taken of plaintiff showed further evidence of increased degenerative changes at the C4-C6 intervertebral levels. Id. The x-ray also revealed a mild case of scoliosis of the cervical spine. Tr. 181, 313
On June 7, 2001, 14 months after his previous visit, plaintiff returned to Dr. Trobiani's office for cervical and lumbar pain. Tr. 192. Plaintiff told Dr. Trobiani that he was working for lawn care company, where he worked riding a stand-up lawn mower and doing some trimming. Id. Dr. Trobiani's course of action was to manage plaintiff's pain with medications. Id. On July 19, 2001, Dr. Trobiani restricted plaintiff to working 15 hours per week. Tr. 190.
The record also reflects that plaintiff was involved in automobile accident on December 4, 2001, as a passenger in automobile that was broad-sided on the driver's side. Tr. 244. The x-rays taken of plaintiff showed no acute abnormality of his cervical or lumbar spines. Id. The x-ray report stated that plaintiff's "[I]umbar vertebral bodies, posterior elements, and disk spaces appear normal. Facets relate normally." Tr. 250. The cervical study showed that "[c]ervical vertebral bodies, disk spaces, posterior elements appear normal." Tr. 251.
From January through March 2002, plaintiff attended physical therapy to address the pain in his neck and low back. Tr. 252-253, 296-297. The notes state that there was some relief afforded by the stretching exercises, which helped to relax plaintiff's arms and legs, however, progress was slow in terms of plaintiff's mobility. Id.
B. Opinion of the ME and the Consulting Physicians
On June 14, 2001, Dr. Cliff Phibbs, a state agency physician, reviewed plaintiff's records. Tr. 236-43. Based on the medical records, Dr. Phibbs opined that plaintiff could occasionally lift 20 pounds, frequently carry 10 pounds, stand and/or walk and sit for six hours out of an eight hour day. Tr. 237. Dr. Phibbs further opined that plaintiff's ability to push or pull, including operation of hand and/or foot controls, was unlimited.Id. Dr. Phibbs also found that plaintiff could occasionally climb stairs, stoop or crouch and could frequently balance, kneel and crawl. Tr. 238. However, Dr. Phibbs believed that plaintiff could never climb ladders, ropes or scaffolds, and that he should avoid frequent motion of the neck and frequent motion of his arms at shoulder level or above. Tr. 238-39.
At the hearing, after requesting the ME to review plaintiff's (Tr. 340), the ALJ asked the ME to state what limitations or restrictions would he place on him. The ME responded:
I think the record describes someone functioning at the light range, as far as lifting and time on the feet. There would certain activities limited to occasional, and these would be overhead activities, and bending and twisting, stooping, and kneeling, and crawling, and climbing. I think repetitive neck activities would be precluded. Those are the kinds of limitations I see from this record.
Tr. 341. In response to questioning from plaintiff's counsel, the ME testified that he would characterized these limitations as modified light range. Id.
The ME also testified that the testimony of plaintiff and his wife would describe a modified sedentary level. Tr. 341.
C. Weight Given to Treating Physicians' Opinions
Based on a review of the record as a whole, this Court finds that the ALJ assigned the proper weight to the opinions of plaintiff's treating physicians, including Dr. Trobiani, and in fact, several of the limitations placed on plaintiff by Dr. Trobiani were consistent with those limitations placed on plaintiff by the ME and ultimately, the ALJ.
For example, in the limitations specified by Dr. Trobiani, he restricted plaintiff from lifting and carrying of any weights in excess of 20 pounds. Tr. 195, 199. This is the same restriction listed by the ALJ in plaintiff's RFC. Tr. 21. Dr. Trobiani restricted plaintiff from repetitive bending, stooping, twisting, crouching, squatting, kneeling, pushing and pulling. Tr. 195-96 (emphasis added). The ALJ stated that plaintiff "mayoccasionally bend, stoop, crouch, crawl, twist, bend or reach overhead." Tr. 21 (emphasis added). Dr. Trobiani restricted plaintiff from prolonged, painful posturing of the neck. Tr. 199. Similarly, the ALJ restricted plaintiff from performing repetitive rotation fix/flex of neck. Tr. 21. Dr. Trobiani also restricted plaintiff from running, jumping and climbing. Tr. 195, 199. The ALJ did not state that plaintiff could run or jump, but did state that plaintiff may not climb ladders or ropes. Tr. 21. Lastly, Dr. Trobiani restricted plaintiff from all activity which would transmit significant vibratory force to the axial spine, such as "horseback riding, jet skiing, water skiing, snowmobiling, jogging, high impact aerobics, etc." Tr. 195, 199. The RFC set by the ALJ by no means suggested that plaintiff could withstand that type or level of activities.
The ALJ does not mention squatting in her RFC but this Court does not see how squatting is significantly different from crouching. In addition, the kneeling restriction provided for by Dr. Trobiani is similar to the crawling restriction put into place by the ALJ.
Dr. Trobiani included in his restrictions a limitation regarding pushing or pulling; the ALJ did not. However, this Court finds nothing in the medical records, the testimony of the ME, or the report of the state consultant to support such a limitation. The ALJ did state, however, that plaintiff may not perform repetitive fine fingering or gripping. Id.
There is no indication from the medical records that plaintiff ever complained of pain as a result of pulling or pushing. In addition, there is no evidence in the record of any tests conducted by Dr. Trobiani to determine if plaintiff could indeed pull and push without pain. To the contrary, in earlier reports Dr. Trobiani stated that plaintiff had full painless motion of both shoulders. Tr. 220, 226; see also Tr. 170 (Dr. Kim noting good range of shoulder without pain). The only support for Dr. Trobiani's restriction with respect to pushing and pulling is his letter to plaintiff's attorneys dated January 21, 2000, in which he observed that pushing or pulling, among other activities, can cause the abrasion of the dural lining of the cervical cord, thereby causing localized cervical pain. Tr. 202.
The state agency physician, in his review of the medical evidence of the record, found that plaintiff's ability to push or pull (including the operation of hand and/or foot controls) was "unlimited." Tr. 237.
The ALJ in her decision stated that the evidence showed that plaintiff had the ability to stand and walk for 6 hours a day. Tr. 21. Dr. Trobiani made no mention as how long plaintiff could stand; he only stated that plaintiff should vary his positions as needed between sitting, standing, and walking. Tr. 195. This Court does not find the limitations imposed by the ALJ in plaintiff's RFC with regards to standing and walking, to be in conflict with Dr. Trobiani's opinion. To the contrary, Dr. Bartie in his examination dated January 7, 1999 noted "no radicular finding in the legs." Tr. 168. Dr. Kim reviewed plaintiff's MRI on March 11, 1999, and concluded that there was no significant nerve root damage, and if there was, it was not consistent with plaintiff's claims of pain radiating into his leg. Tr. 171. Dr. Nelson, in his examination of plaintiff on September 24, 1998, noted that plaintiff's "motor function in his lower extremities appears to be normal for his age." Tr. 178. Even Dr. Trobiani's notes dated June 7, 2001, document that plaintiff was working riding a standing lawn mower. Tr. 192. The objective medical evidence of the record supports the assertion that plaintiff can stand or walk for at least six hours a day.
For all of the above reasons, this Court concludes that the ALJ gave the appropriate weight to Dr. Trobiani's opinions when formulating the RFC for plaintiff.
D. Plaintiff's Subjective Testimony
Failure to give some consideration to a claimant's subjective complaints is reversible error. Brand v. Secretary of the Dept. of Health, Educ. and Welfare, 623 F.2d 523, 525 (8th Cir. 1980). "[A] headache, back ache, or sprain may constitute a disabling impairment even though it may not be corroborated by an x-ray or some other objective finding." Id. An ALJ must consider a claimant's subjective complaints, regardless of whether they are corroborated by objective medical findings. Id.; see also Cline v. Sullivan, 939 F.2d 560, 566 (8th Cir. 1991). On the other hand, "we will not substitute our opinions for that of the ALJ, who is in a better position to assess a claimant's credibility." Id. (citing Woolf, 3 F.3d at 1213).
In considering a claimant's subjective complaints of disability, the ALJ must assess the claimant's credibility, applying the factors set forth in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (vacated on other grounds by Bowen v. Polaski, 476 U.S. 1167 (1986)). The Polaski factors require the ALJ to give full consideration to all the evidence presented relating to a claimant's subjective complaints, including prior work record, and observations of 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; and
5. functional restrictions.
Id.; see also Cox v. Apfel, 160 F.3d 1203, 1207 (8th Cir. 1998) (same); Baumgarten v. Chater, 75 F.3d 366, 368 (8th Cir. 1996) (same); Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996) (same); Cline, 939 F.2d at 565 (same); Callison, 985 F. Supp. 1182, 1186 (D. Neb. 1997) (same). "Other relevant factors include the claimant's relevant work history and the absence of objective medical evidence to support the complaints." Cox, 160 F.3d at 1207.
"An ALJ may discount a claimant's subjective complaints of pain only if there are inconsistencies in the record as a whole."Johnson, 87 F.3d at 1017 (citing Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir. 1993)). "The ALJ may discount a claimant's allegations of pain when he explicitly finds them inconsistent with daily activities, lack of treatment, demeanor, and objective medical evidence." Jones v. Chater, 86 F.3d 823, 826 (8th Cir. 1996); see also Cox, 160 F.3d at 207. The ALJ may not disregard a claimant's subjective complaints solely because he or she believes the objective medical evidence does not support them. Griffon v. Bowen, 856 F.2d 1150, 1154 (8th Cir. 1988).
If the ALJ rejects a claimant's complaint of pain, "the ALJ must make an express credibility determination detailing his reasons for discrediting the testimony." Cline v. Sullivan, 939 F.2d 560, 565 (8th Cir. 1991). "It is not enough that inconsistencies may be said to exist, the ALJ must set forth the inconsistencies in the evidence presented and discuss the factors set forth in Polaski when making credibility determinations."Cline, 939 F.2d at 565.
Here, plaintiff claims that the ALJ and the Appeals Council erred by failing to afford credibility to plaintiff's subjective complaints of pain as it related to his neck and back. Pl. Memo., pp. 13-14. Plaintiff bases his contention on the following language in the ALJ's decision with regard to plaintiff's subjective complaints:
At the instant hearing, the claimant did not allege back pain as the reason he was unable to work. He did assert that reflex sympathetic dystrophy and hand pain were major reasons for his disability.
Plaintiff did not argue in his brief to the Court that the ALJ failed to give his subjective complaints proper weight when considering his RSD or hand pain. Therefore, he has waived his right to contest her findings with respect to those conditions. See Yeazel v. Apfel, 148 F.3d 910, 911-12 (8th Cir. 1998) (citing Roth v. G.D. Searle Co., 27 F.3d 1303, 1307 (8th Cir. 1994))n (finding failure to raise an issue before this Court results in waiver of that argument.) However, even if plaintiff were making such an argument, it would fail. First, plaintiff's counsel admitted at the hearing that there has been no active treatment for the RSD in recent years. Tr. 326. Second, there is no objective medical evidence in the record that would support an assertion that plaintiff suffered from either RSD or disabling hand pain after November 3, 1998, the date of plaintiff's alleged onset of his disability. See e.g. Tr. 174, 219, 225, 254, 298, 308. "The lack of supporting evidence may be used as `one factor to be considered in evaluating the credibility of testimony and complaints.'" Curran-Kicksey v. Barnhart, 315 F.3d 964, 968 (8th Cir. 2003) (quoting Polaski, 739 F.2d at 1322). Third, there is no mention of any treatment for RSD and very little mention of treatment for hand pain (Tr. 309) in the record after November 3, 1998. "[A] claimant's allegations of disabling pain may be discredited by evidence that the claimant has received minimal medical treatment and/or has taken only occasional pain medications." Singh v. Apfel, 222 F.3d 448, 453 (8th Cir. 2000); see also Curran-Kicksey, 315 F.3d at 969 (finding that evidence that a party did not regularly require prescription medication or therapy could "create reasonable doubt in a reasonable adjudicator's mind regarding to her testimony about the extent of her pain.") (citation omitted). Finally, the record shows that plaintiff was able to drive on a daily basis, cook weekly, do daily yard work, take care of his children on a regular basis, worked on putting together model cars, and engaged in daily exercise activities. Tr. 112. The record also shows that plaintiff engaged in part-time work during the relevant period, including "knock[ing] out walls in home projects, snowplow[ing] and do[ing] a lot of other laborious work" (Tr. 167), and riding a standing lawn mower and doing some trimming. Tr. 192. Although plaintiff does not need to establish that he is bedridden to be disabled, a claimant's credibility regarding subjective complaints of pain can be undermined by daily activities. See Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1996) (concluding that the credibility of claimant's allegations of disabling pain was undermined by his daily activities, including caring for children, driving, and occasional grocery shopping). Thus, this Court concludes that the ALJ properly assessed plaintiff's RFC and his subjective testimony in light of the inconsistencies between the record and plaintiff's subjective complaints with regards to his claims of RSD and hand pain.
Tr. 18.
This Court concludes that the ALJ's finding that the claimant did not allege at the hearing that back pain was a reason he was unable to work is not supported by the substantial evidence of the record. To the contrary, the testimony of the plaintiff at the hearing specifically provides that his back pain was part of the reason why he could not work:
Q All right. Why don't you tell me why it is you think you can't work a full time-job?
A Oh, I have tremendous pain. I'll start from my head. I've got major headaches behind my ears. I've got neck pain that runs down my shoulders and into my arms. My right arm, I can't hold a glass or anything in my hand longer than a few minutes. My left hand is numb, constantly. I've got tingling in my hand all the time. My middle of my back hurts constantly. My lower back, I've got shooting pains down my legs. And my feet, I feel like needles are poking me in my back and my feet.
Q Which is your primary problem, your back or your arms and your hands?
A It's all a problem. I — it's not just one.
Q Is it more difficult for you to open a jar, or pick up coins?
A Oh. I'd say they're both really hard to do. I have hardly any feeling in my hand It's — part of it's hot and cold, temperature [INAUDIBLE] it's hard for me to tell.
Q And the back pain, when does it seem to come on?
A It's constant. It's there all the time. I have problems sleeping at night. I'm up every hour, take the medication, I'll take a hot bath at three o' clock in the morning, its hard for me to sleep at night. I just —
Q And is there anything you seem to do that brings it on?
A Just getting out of bed. Just waking up, walking, everything.
Tr. 328-29. Furthermore, plaintiff claimed in his disability report to SSA that his condition limits his ability to work because of the resulting "[c]onstant pain in low back + neck. . . ." Tr. 90.
It is evident from the ALJ's decision that she did not evaluate plaintiff's subjective complaints of neck and back pain under thePolaski standards, or make an express credibility determination detailing her reasons for discrediting his testimony. See Cline v. Sullivan, 939 F.2d at 565. As such, this Court remands this case to the ALJ to consider the credibility of plaintiff's subjective complaints of neck and back pain, and its impact on her RFC determination. If the ALJ concludes that plaintiff's subjective complaints of pain with respect to his neck and back should be discounted, the ALJ should be directed to explain her position on those matters.
E. VE Hypothetical
Plaintiff argues that hypothetical posed by plaintiff to the VE was flawed because it improperly discounted the treating physician's opinion and because it was based on a flawedPolaski analysis. See Pl.'s Memo. at p. 15. Testimony from a VE based on a properly phrased hypothetical question constitutes substantial evidence." Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996). A proper hypothetical question presents to the vocational expert a set of limitations that mirror those of the claimant. Id. at 676. While a hypothetical question must accurately set forth all of the claimant's impairments, the question need only include those limitations accepted by the ALJ as true. Rappoport v. Sullivan, 942 F.2d 1320, 1323 (8th Cir. 1991).
The ALJ posed the following hypothetical to the VE regarding plaintiff's limitations:
Assume we have an individual who is 35 years of age, with a tenth grade education. Who is on a number of medications, the apparent side effects being some tiredness and some grogginess, who has work experience as outlined by yourself at 15E. Who is impaired with RSD, degenerative disc disease, and suffers from headaches. Who is limited in lifting and can carry 20 pounds occasionally, 10 pounds frequently. Who can do work that allows for only occasionally bending, stooping, crouching, crawling, twisting, or climbing or overhead work. Who can do work that that requires no repetitive fine finger, or power gripping, twisting or pounding. Who can do work that requires no repetitive rotation, fixation, of flexation[sic] of the neck. Who can do work that requires no heights, ladders or scaffolding, and an environment where there would be no exposure in temperature or humidity extremes.
Tr. 342. The VE opined that plaintiff could not perform his past work as the crew leader of a lawn service, but that there were jobs in the national economy that he could perform given the hypothetical including assembler of small products, basic hand packager, and parking lot attendant. Tr. 343.
In light of this Court's finding that the ALJ did not consider, evaluate or explain any inconsistencies in connection with plaintiff's subjective complaints of neck and back pain in determining his RFC, this Court concludes that the hypothetical presented to the VE may well be flawed. Therefore, after considering plaintiff's subjective complaints of neck and back pain in determining his RFC, if the ALJ revises her final RFC determination, she should solicit new testimony from a Vocational Expert in order to determine whether, at step five of the evaluation process, there are any jobs that plaintiff could perform given the ALJ's post-remand RFC determination. See Jenkins v. Apfel, 196 F.2d 922, 925 (8th Cir. 1999) (where a vocational expert's opinion is predicated on a faulty RFC determination, the ALJ cannot rely on that opinion); Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000).
V. CONCLUSION
For the reasons discussed above, the Court concludes that the ALJ's decision to deny plaintiff's application for SSI benefits, cannot be upheld because she failed to properly assess plaintiff's subjective complaints of neck and back pain in determining his RFC.
It is therefore recommended that plaintiff's motion for summary judgment be granted in part and denied in part. Plaintiff's request for an order vacating the ALJ's decision should be granted, but his request for an immediate award of benefits should be denied. It is also recommended that the defendant's motion for summary judgment be denied, and that this case be remanded for further administrative proceedings. On remand, the ALJ should consider the credibility of plaintiff's subjective complaints of back pain, and its impact on her RFC determination. If the ALJ concludes that plaintiff's subjective complaints of pain with respect to his neck and back should be discounted, the ALJ should be directed to explain her position on those matters. In addition, if the ALJ does revise her final RFC determination as a consequence of her evaluation of plaintiff's subjective complaints regarding his neck and back, she should solicit new testimony from a Vocational Expert in order to determine whether, at step five of the evaluation process, there are any jobs that plaintiff could perform given the ALJ's post-remand RFC determination.
VI. RECOMMENDATION
For the reasons set forth above, it is recommended that:
1. Plaintiff's Motion for Summary Judgment [Docket No. 20] be granted in part and denied in part;
2. Defendant's Motion for Summary Judgment be [Docket No. 22] be denied; and
3. The decision of the Administrative Law Judge be vacated and the case be remanded for further administrative proceedings consistent with this Report and Recommendation.
Pursuant to Local Rule 72.1(c)(2), any party may object to this Report and Recommendation by filing with the Clerk of Court, and by serving upon all parties on or before February 26, 2004 a copy of this Report, written objections which specifically identify the portions of the Report to which objections are made and the bases for each objection.