Summary: Plaintiff sought judicial review of SSA’s denial of benefits. Based on the whole record, there is substantial evidence to support the finding plaintiff retains the residual functional capacity for certain light and sedentary work. The ALJ did not ignore the opinions of plaintiff’s treating physicians. There is substantial evidence supporting the ALJ’s conclusion that plaintiff’s depressive disorder is not severe. The ALJ also sufficiently analyzed the combined effects of plaintiff’s impairments. Finally, the ALJ adequately evaluated plaintiff’s subjective complaints of disabling pain, and his decision to reject those complaints is supported by substantial evidence. The SSA’s decision was affirmed.

Case Name: Susan Waxvik v. SSA

Case Number: A2-99-152

Docket Number: 19

Date Filed: 3/12/01

Nature of Suit: 863

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

NORTHEASTERN DIVISION

     REPORT AND RECOMMENDATION

            Plaintiff Susan Kay Waxvik initiated this action under 42 U.S.C. § 405(g) seeking judicial review of the final decision of the Commissioner of Social Security (Commissioner) denying her application for disability insurance and Supplemental Security Income (SSI) benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1382c. Both parties’ motions for summary judgment are before the court. (Doc. #14, 16.) For the reasons articulated in the recommendation, the undersigned magistrate judge recommends that defendant’s motion be granted and the decision of the commissioner be affirmed.

I. Background

            Plaintiff filed applications for disability insurance and SSI benefits on August 30, 1996. (Tr. at 119-123.) Plaintiff alleges that she has been disabled since May 26, 1995, due to mental and physical impairments. (Tr. at 539.) The Social Security Administration (SSA) denied plaintiff’s applications for disability benefits initially and upon reconsideration. (Tr. at 107, 113.) Plaintiff timely requested a hearing before an ALJ. (Tr. at 115.) Following the administrative hearing, the ALJ found plaintiff’s physical impairments (fibromyalgia, mild degenerative changes, lumbar spine, slight medial compartment space narrowing, right knee, bilateral foot pain, and a remote history of frostbite injuries to the toes and fingers) to be severe, but her mental impairments (history of alcohol dependency and a depressive disorder) to not be severe. (Tr. at 15-16.) The ALJ found plaintiff has the residual functional capacity (RFC) to perform some light exertional work. (Tr. at 29.) The ALJ found the plaintiff’s impairments did not prevent the claimant from performing her past relevant work. (Id.) Thus, the ALJ concluded plaintiff was not disabled under the Social Security Act. (Id.)

            Plaintiff timely filed a request for review of the ALJ’s decision with the Appeals Council. (Tr. at 9.) The Appeals Council found no grounds to review the ALJ’s determination and denied plaintiff’s request for review. (Tr. at 5-6.) Accordingly, the Appeals Council affirmed the ALJ’s decision as the final decision of the Commissioner. (Id.)                             

II. Discussion

            Upon review of the pleadings and transcript of the record, the court can affirm, modify, or reverse the decision of the Commissioner, with or without remanding the cause for a rehearing. 42 U.S.C. § 405(g). To affirm the Commissioner's decision, the court must find that it is supported by substantial evidence appearing in the record as a whole. See id.; Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989). "Substantial evidence is less than a preponderance, but enough so that a reasonable mind might find it adequate to support the conclusion." Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992); Consolidated Edison Co., et al. v. National Labor Relations Bd., et al., 305 U.S. 197, 229 (1938). The review of the record is more than a search for evidence supporting the Commissioner's decision; the court must also take into account matters that detract from the ALJ's findings and apply a balancing test to weigh evidence which is contradictory. Kirby v. Sullivan, 923 F.2d 1323, 1326 (8th Cir. 1991); Sobania v. Secretary of Health & Human Services, 879 F.2d 441, 444 (8th Cir. 1989) (citation omitted).

            Under the Social Security Act, an individual is "disabled" if he or she is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to . . . last for a continuous period of not less than twelve months . . . ." 42 U.S.C. § 1382c(a)(3)(A). The impairment(s) must be severe enough so that the applicant 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." Id. § 1382c(a)(3)(B).

            Claims of disability are evaluated using a five-step sequential review. See 20 C.F.R. § 416.920(a) (1997). If the Commissioner finds that the applicant is either disabled or not disabled at any point in the review, the Commissioner does not continue the review. The first step is to determine whether the applicant is engaged in substantial gainful employment. If the applicant is so engaged, there is no disability. If, however, the applicant is not engaged in substantial gainful employment, the second step is to consider whether the applicant has an impairment or combination of impairments that significantly limit his or her ability to perform basic work activities. If there is no limiting effect, the applicant is not disabled. But, if the applicant is significantly limited by his or her impairment(s), the third step is to determine whether the impairments meet or equal a listed impairment. If the impairments do meet or equal a listed impairment, the applicant is disabled. The fourth step is to determine how the impairments affect the applicant's ability to perform past relevant work. The applicant is not disabled if he or she is still able to perform past relevant work. Finally, the fifth step is to determine whether the applicant can perform other work. If the applicant cannot perform other work, the applicant is disabled.

            The applicant bears the burden of proving disability. Clark v. Shalala, 28 F.3d 828, 830 (8th Cir. 1994). "However, if the claimant can demonstrate that [s]he is unable to do past relevant work, and thereby reaches the fifth step in the process, the burden shifts to the [Commissioner], who must show that substantial gainful activity exists in the national economy which the claimant can perform." Id.

            Plaintiff asserts the ALJ’s decision is not supported by substantial evidence for two reasons. First, plaintiff claims the ALJ ignored the opinions of her treating physicians, Dr. Patrick Emery and Dr. Jon D. Peterson, particularly their view that plaintiff’s frostbite condition had deteriorated. Emery stated in a June 26, 1998 letter that plaintiff’s health has deteriorated during the three years he has been her physician. (Tr. at 309.) Emery also stated it was his opinion plaintiff could not tolerate any substantial gainful activity because of her physical impairment. (Id.) However, even a treating physician’s opinion that a claimant is disabled can properly be discredited where the statement does not explain how a claimant’s ailments impede her ability to work, and other more detailed statements do not support the conclusion of disability. See Davis v. Shalala, 31 F.3d 753, 756 (8^th Cir. 1994).

             Doctor Emery’s other statements shed a light on plaintiff’s condition that does not support the conclusion in his letter. For instance, in a September 11, 1996, evaluation, Emery states plaintiff’s depression has improved, her right knee pain has improved, her back pain has improved and her foot pain has improved. (Tr. at 274.) Later, in an October 28, 1996, evaluation, Emery notes plaintiff’s right knee pain has pretty much resolved, an EMG is normal, and plaintiff has good reflexes, knee jerk and ankle response. (Tr. at 271.) In an evaluation on July 30, 1996, Emery questions whether plaintiff was putting forth a valid effort in the strength testing of her legs. (Tr. at 276.) The record demonstrates Emery’s detailed statements do not completely support his conclusion of disability.

            Dr. Peterson’s conclusion, unlike Dr. Emery’s, does not state plaintiff cannot tolerate any substantial gainful activity. Peterson, a podiatrist, concludes regarding her foot problems:

This seems to be a progressive situation for her and she finds herself unable to find a job that she can tolerate as far as her foot pain is concerned. The only functional deficit that I do see is that she has some stiffness of the joints in the feet with decreased range of motion of the midtarsal joints and metatarsophalangeal joints as well as the titbiotalar joints. . . . Other than these objective findings her symptoms are subjective in nature.

(Tr. at 288.) After a January 21, 1997 check-up, Peterson wrote “Most of her complaints are subjective in nature with very little objective findings.” (Tr. at 207.)

            Emery’s conclusion is not fully supported by his findings and Peterson’s findings and conclusions are mixed at best. A look at the whole record of both doctors reveals inconclusive data on whether plaintiff is disabled. The record does not support plaintiff’s allegation that the ALJ ignored the opinions of plaintiff’s treating physicians.

            Plaintiff next argues the ALJ’s decision is not supported by substantial evidence because his conclusion that plaintiff’s depressive disorder is not severe is inconsistent with the evidence. Plaintiff points to Testing Report of January 16, 1998 put together by two psychologists. According to the Report, scores indicate plaintiff is depressed and anxious. (Tr. at 290.) The Report also indicates plaintiff has difficulty with recall, and she has trouble sequencing words and ordering events in time. (Tr. at 291.)

            There is, however, conflicting evidence in the record. Mental evaluations revealed plaintiff was alert and oriented in three spheres; she had normal, organized and goal-directed thought processes, normal speech, and no delusions or hallucinations. (Tr. at 205, 238-39, 276.) Plaintiff denied being suicidal and it was noted that plaintiff did not complain much about her depression during her evaluation. (Tr. at 205, 238-39.) Inconclusive medical data, like that present here, is best resolved by the ALJ. See Spradling v. Chater, 126 F.3d 1072, 1075 (8^th Cir. 1997).

            Plaintiff also argues the ALJ erred in failing to evaluate the combined effects of the plaintiff’s social, physical, and psychological problems. This argument is without merit. Statements by the ALJ indicate he considered the combined effects of all of the plaintiff’s problems. The ALJ stated, “While claimant definitely possesses ‘severe’ impairments, the severity of the same does not, either when considered individually or in combination, meet or medically equal the level of severity of any impairment listed in Appendix 1, Subpart P. Regulations No. 4.” (Tr. at 16.) While analyzing plaintiff’s capacity for work, the ALJ stated, “Before determining whether claimant possesses the overall residual functional capacity to perform her past relevant work, . . . the undersigned must next assess claimant’s mental residual functional capacity.” (Tr. at 25.) The ALJ concluded, “The claimant’s impairments do not prevent the claimant from performing her past relevant work.” (Tr. at 29.) (emphasis added).

            The court in Browning v. Sullivan, 958 F.2d 817, 821 (8^th Cir. 1992), held the ALJ sufficiently considered impairments in combination when he separately discussed each impairment, and made a finding that the claimant’s impairments did not prevent her from performing her past relevant work. “To require a more elaborate articulation of the ALJ’s thought processes,” the court said, “would not be reasonable.” Id. The ALJ here sufficiently considered plaintiff’s various impairments and concluded the impairments did not prevent her from performing her past relevant work. Under Browning, the ALJ’s analysis was reasonable. Id.

            Finally, plaintiff argues the ALJ erred in downgrading the credibility of her complaints of pain. Specifically, plaintiff asserts the ALJ gave undue weight to the functional capacity evaluation (FCE). The FCE found plaintiff capable of performing light exertional work. (Tr. at 230-35.) One reason plaintiff attacks the FCE is because it was conducted 19 months before the hearing before the ALJ. The ALJ noted that no treating or examining physician has ever repudiated the FCE and that there is no indication in the medical evidence of record as a whole that her condition has materially deteriorated since the evaluation. (Tr. at 25.) Plaintiff points to no evidence that her condition has materially deteriorated since the FCE.

            Furthermore, although the ALJ stated the FCE was “perhaps the most compelling factor” in downgrading plaintiff’s credibility, the ALJ cited several other reasons for downgrading plaintiff’s credibility. In evaluating the credibility of plaintiff’s subjective complaints of pain, the ALJ noted his reliance on the criteria set forth in Polaski v. Heckler, 751 F.2d 943 (8^th Cir. 1984), the dictates contained in Social Security Ruling 96-7p and the conditions of 20 CFR 404.1529 and 416.929. (Tr. at 19.) Plaintiff counters that the ALJ cited the Polaski decision, but failed to follow it regarding several factors: plaintiff’s work record, observations of third parties and treating and examining sources, plaintiff’s daily activities, the quality of plaintiff’s pain, causes of plaintiff’s pain, plaintiff’s medication and how the pain restricted plaintiff’s activities.

            To determine whether the ALJ properly applied the Polaski factors, this court must consider whether the ALJ took into account all the relevant evidence, and whether the claimant’s own testimony contradicted the evidence in the record so that the ALJ could discount the testimony for lack of credibility. Benskin v. Bowen, 830 F.2d 878, 882 (8^th Cir. 1987). The ALJ began his analysis by focusing on plaintiff’s work record. The ALJ determined plaintiff possesses a positive work profile, one which creates probative weight for the credibility of her allegation of disability. (Tr. at 20.) However, the probative weight was “significantly eroded” by two primary factors. (Id.) First, although plaintiff claims residuals from a 1975 frostbite incident prevent her from working, she enjoyed great vocational success after 1975 and the medical evidence fails to document any deterioration in her medical condition. (Id.) Second, the ALJ questioned plaintiff’s failure to make an effort to complete a vocational rehabilitation program, particularly why plaintiff was able to make other appointments, but unable to make vocational rehabilitation appointments because of her pain. (Id.)

            The ALJ also analyzed plaintiff’s daily activities. He noted plaintiff at hearing indicated she experiences difficulty getting in and out of the bathtub, that while she is able to perform household chores, she must do so with frequent rest breaks, and that she needs help carrying her groceries. (Tr. at 21.) The ALJ noted, however, plaintiff’s greater capacity for activities of daily living than admitted to at the administrative hearing. (Id.) Plaintiff previously indicated she was able to cook meals, help with dusting and vacuuming, and wash clothes. (Id.)

            The ALJ noted that while the medical evidence documents the existence of a medically determinable impairment or combination of impairments which can reasonably be expected to cause a certain degree of pain and limitation, there are several material inconsistencies between plaintiff’s testimony and the medical record. (Tr. at 21.) The ALJ noted the letter of Marsha Lange, M.D., who said of plaintiff, “I think she would not be able to hold a job which requires a lot of physical exertions. Specifically, I think she would do fine at a desk job as long as she was able to shift her balance and get up every hour or so to walk around to get pressure off her back. I think that a job requiring pushing a vacuum or other muscular activity would not work as well.” (Tr. at 23-24.)

             Furthermore, plaintiff said at the administrative hearing that she suffers from swelling in her lower extremities, but physical examinations revealed no pedal edema or excessive swelling. (Tr. at 24.) Thus, according to the ALJ, it appears the medication plaintiff is taking for swelling is working. (Id.) The ALJ noted plaintiff’s complaints of lower extremity pain, but also noted an EMG ruled out radiculopathy and there is no medically determinable impairment which might further explain or otherwise serve as a foundation for plaintiff’s pain. (Id.) 

            The ALJ also considered plaintiff’s complaints of pain in her arms and pain and swelling in her fingers. (Tr. at 24.) According to the ALJ, “no physical examination has documented excessive swelling observed in claimant’s hands, wrists or fingers.” (Id.) The ALJ analyzed plaintiff’s complaints of back pain, noting “most physical examinations have revealed negative straight leg raising and x-rays taken of claimant’s lumbar spine area revealed quite mild degenerative changes of questionable clinical significance.” (Id.)

            Plaintiff also had indicated at hearing she has the start of a cataract and that she sees “floaters.” (Id.) The ALJ, however, found plaintiff never informed any treating or examining physician of any visual problems. (Id.) In regard to plaintiff’s complaint at hearing that she experiences great difficulty sleeping through the night, the ALJ found the claim inconsistent with other evidence. (Tr. at 24-25.) Plaintiff indicated to her physicians that she sleeps well, and “no treating or examining physician has ever documented a complaint made by claimant or any other person that claimant needs to lie down and rest during a typical day.” (Tr. at 25.)

            Based on the analysis above, it is evident the ALJ considered all the relevant evidence, and determined the claimant’s own testimony contradicted the evidence in the record so that the ALJ could discount the testimony for lack of credibility. While the ALJ did not state specifically which Polaski factor lined up with each piece of evidence, he did thoroughly analyze plaintiff’s complaints of pain, considering all relevant evidence, and adequately detailed his reasoning as to why he rejected plaintiff’s complaints of disabling pain. See Benskin, 830 F.2d at 882.

III. Conclusion

            The ALJ did not ignore the opinions of plaintiff’s treating physicians. There is substantial evidence supporting the ALJ’s conclusion that plaintiff’s depressive disorder is not severe. The ALJ also sufficiently analyzed the combined effects of plaintiff’s impairments. Finally, the ALJ adequately evaluated plaintiff’s subjective complaints of disabling pain under Polaski, and his decision to reject those complaints is supported by substantial evidence. Thus, it is recommended that defendant’s motion be granted and the Commissioner’s decision be affirmed. Based on the whole record, there is substantial evidence to support the finding plaintiff retains the residual functional capacity for certain light and sedentary work. 

IT IS RECOMMENDED:

            1.         Plaintiff’s motion for summary judgment be denied (Doc. #14.)

            2.         Defendant’s motion for summary judgment be granted. (Doc. #16.) Judgment should be entered affirming the decision of the Commissioner and dismissing plaintiff’s complaint and cause of action with prejudice. 

            Any party may object to this recommendation by filing an objection with the clerk of court on or before March 29, 2001.

Dated: March____, 2001

Karen K. Klein
United States Magistrate Judge