Summary: Plaintiff sought judicial review of SSA's denial of disability benefits. On cross-motions for summary judgment, the court held that substantial evidence in the record as a whole supports the ALJ's finding that plaintiff is able to perform some light work. An RFC assessment when, as here, supported by the medical record as a whole, may constitute substantial evidence. The hypothetical question asked by the ALJ adequately described plaintiff's limitations and was thus not error. The SSA's decision was affirmed.

Case Name: Hansen v. SSA
Case Number: A2-99-89
Docket Number: 9
Date Filed: 9/14/00
Nature of Suit: 864

REPORT AND RECOMMENDATION

Plaintiff Vicky Hansen initiated this action under 42 U.S.C. § 405(g) seeking judicial review of the final decision of the Commissioner of Social Security (Commissioner) terminating her benefits under the Supplemental Security Income (SSI) program, Title XVI, § 1602 of the Social Security Act, 42 U.S.C. § 1381, et seq. Both parties have moved for summary judgment. (Doc. # 5, 7.) For the reasons articulated in this recommendation, the undersigned magistrate judge recommends that defendant's motion be granted and the decision of the Commissioner be affirmed.

I. Background

Plaintiff was granted SSI benefits effective October 1988 due to trauma to both hands and arms as well as alcoholism. (Tr. at 89.) Because of a change in the law disallowing benefits if alcoholism is a contributing factor in the disability, her benefits were terminated effective January 1, 1997. (Tr. at 93, 112.) Plaintiff alleges she is disabled due to the residual effect from traumas to her upper extremities. (Tr. at 78.) Plaintiff timely requested a hearing before an ALJ. (Tr. at 114-115.) Following the administrative hearing on August 1, 1997, the ALJ found plaintiff's arm injuries constitute severe impairments, but plaintiff retains the residual functional capacity (RFC) to perform a limited range of light work. (Tr. at 17.) Although plaintiff has no past relevant work since she has not engaged in substantial gainful activity since 1983, the ALJ found plaintiff could perform a significant number of jobs existing in the national economy. (Tr. at 18.) Thus, the ALJ determined plaintiff is not disabled as defined in the Social Security Act. (Id.)

Plaintiff timely requested a review of the ALJ's decision by the Appeals Council. (Tr. at 6-7.) The Appeals Council considered the request, but found no grounds to review the ALJ's determination. (Tr. at 3-4.) The Appeals Council denied plaintiff's request for review and 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 ⁽¹⁾

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. ⁽²⁾ 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 articulates two arguments regarding a hypothetical question asked by the ALJ. Plaintiff first argues the ALJ erroneously relied on the Residual Functional Capacity (RFC) assessment completed by the Social Security Medical Consultant in posing the hypothetical question. Second, plaintiff argues, based on the medical evidence in the record, the hypothetical question did not adequately set out plaintiff's impairments.

Plaintiff, citing Frankl v. Shalala, 47 F.3d 935 (8th Cir. 1995), asserts a Social Security RFC assessment may not constitute substantial evidence. In Frankl, the ALJ relied on an RFC assessment that no longer fairly represented plaintiff's condition, as subsequent medical evidence demonstrated plaintiff's condition had seriously deteriorated since the assessment. Id. at 938. Because the RFC was no longer representative, it was not substantial evidence. Id. An RFC assessment by a non-treating physician, under appropriate circumstances, can constitute the requisite substantial evidence. Smallwood v. Chater, 65 F.3d 87, 89 (8th Cir. 1995).

Moreover, the ALJ here held plaintiff's limitations as reflected in the consultative RFC assessment are supported by the medical record as a whole. (Tr. at 15.) The undersigned must then consider whether substantial evidence supports the ALJ's conclusion the medical record as a whole supports the limitations reflected in the assessment. The ALJ, in asking the hypothetical question, relied on the limitations given in the RFC assessment. ⁽³⁾ (Tr. at 65.) Thus, this issue-whether the assessment is supported by substantial evidence-is essentially the same as the second issue raised by plaintiff-whether the assumptions in the hypothetical question are supported by evidence in the medical record. Therefore, these issues will be analyzed together.

Plaintiff insists the ALJ's characterization that the individual in the hypothetical question would have manipulation limitations in terms of handling, fingering and feeling does not fully describe plaintiff's limitations. Plaintiff refers to the following findings of medical personnel: Dr. Lee found decreased pinprick perception at the territory of the median nerve on the right side and the ulnar nerve on the left side. (Tr. at 174.) Lee also discovered plaintiff's handgrip was quite weak bilaterally and there is obvious atrophy on the interosseous muscles on the left side. (Id.) Plaintiff cites Dr. Nabwangu's finding of moderate weakness of the thenar eminence group of muscles on the right side as well as hypesthesia involving the thumb, index, middle and lateral aspect of the fourth finger on that side. (Tr. at 185.) Dr. Nabwangu found on the left side severe weakness of the eminence group of muscles as well as the hypothenar group of muscles, severely limited abduction and adduction at the level of the fingers and hypesthesia involving the left fifth and partially the left fourth finger. (Tr. at 185-86.)

Although plaintiff refers to specific language in the doctors' reports, plaintiff points to nothing in those reports that materially adds to or contradicts the limitations the ALJ listed. A hypothetical question must set forth all the claimant's impairments, but it need not use specific diagnostic or symptomatic terms where other terms can adequately define the claimant's impairments. Roe v. Chater, 92 F.3d 672, 676 (8th Cir. 1996). The findings by the doctors are consistent with the RFC assessment that stated plaintiff is limited in handling (gross manipulation), fingering (fine manipulation), and feeling (skin receptors).

To fully review whether the assumptions in the hypothetical question are supported by substantial evidence, the undersigned must also look to the evidence the ALJ discounted. Although the ALJ found the medical record generally consistent with the RFC assessment, the ALJ did not accept all limitations noted in the record or alleged by plaintiff. The ALJ discounted a report by Karen Rasmussen, a physical therapist who evaluated plaintiff. ⁽⁴⁾

The ALJ found the evaluation consistent with the manipulative limitations found in the RFC assessment. (Tr. at 16.) However, the ALJ discounted the degree of probative weight given to the assessment for two reasons. (Id.) First, the evaluation is not from an "acceptable medical source." See C.F.R. § 416.913 (listing acceptable medical sources). Second, portions of the evaluation are inconsistent with the evidence in the record as a whole. (Id.) Although the physical therapist limited the amount of time plaintiff could sit or stand at one time, plaintiff has no medically determinable impairment that would affect her capacity to sit, stand or walk. (Id.) Plaintiff herself testified she is able to stand, sit and walk without limitation. (Tr. at 41-42.)

The ALJ also found no basis for Rasmussen's prohibition against cold environmental exposure and use of vibrating tools. (Tr. at 16.) The ALJ found there was no documentation in the medical record of such physician-imposed work-related restrictions and that the physical therapist did not explain the basis for such restrictions. The undersigned finds support for the ALJ's conclusion that there is no documented basis for the cold environmental exposure limitation, but finds the evidence contradicts the ALJ's conclusion of no basis for the limitation on use of vibrating tools. Rasmussen stated plaintiff is restricted from using vibratory tools with the right hand due to carpal tunnel symptoms with the right hand. (Tr. at 209.) Indeed, Dr. Lee's report indicated severe carpal tunnel syndrome on the right side. (Tr. at 176.) The repetitive motion of vibratory tools would seem to be inappropriate for a carpal tunnel condition. The physical therapist tied the limitation to plaintiff's clearly diagnosed carpal tunnel syndrome. Thus, there is adequate support for this limitation in the medical record.

Despite improperly discounting the limitation on use of vibratory tools, the ALJ was correct in concluding Rasmussen is not an "acceptable medical source," and the ALJ did note some valid inconsistencies between the evaluation and other medical evidence. In light of these factors, the ALJ's decision to discount the degree of probative weight given to the assessment was not error.

The ALJ also discounted plaintiff's allegations that she had disabling pain and was unable to use her hands. (Tr. at 15.) The ALJ's analysis of plaintiff's pain complies with

Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). Polaski requires the ALJ to consider all evidence of plaintiff's subjective complaints of pain, including prior work history, as it relates to: (1) the claimant's daily activities; (2) the duration, frequency and intensity of the pain; (3) precipitating or aggravating factors; (4) dosage, effectiveness and side effects of medication; (5) functional limitations. Id. The ALJ specifically noted plaintiff's daily activities, which include

lifting up to fifteen pounds of laundry, washing dishes, vacuuming and lawn mowing with a riding lawn mower. (Id.) Plaintiff specifically testified she mows her own yard and two other yards. (Tr. at 45.) The ALJ also cited two medical reports that note plaintiff's lawn mowing, but do not instruct plaintiff to not engage in this type of activity. (Id.) Plaintiff's significant daily activities provide substantial evidence supporting the ALJ's decision to discount the credibility of plaintiff's allegations.

After reviewing the medical evidence highlighted by plaintiff and the evidence the ALJ discounted, the magistrate judge concludes there is substantial evidence supporting the ALJ's conclusion that the medical records are consistent with the limitations given in the RFC assessment. The hypothetical question posed by the ALJ adequately summarized plaintiff's abilities and impairments, and was thus appropriate. See Trenary v. Bowen, 898 F.2d 1361, 1365 (8th Cir. 1990) (finding no error in hypothetical question when such question adequately summarized claimant's abilities and impairments). In sum, based on the whole record, there is substantial evidence to support the ALJ's finding that plaintiff retains the RFC for certain sedentary and light work.

IT IS RECOMMENDED:

1. Plaintiff's motion for summary judgment be denied. (Doc. #5.)

2. Defendant's motion for summary judgment be granted. (Doc. #7.) Judgment should be entered affirming the decision of the Commissioner and dismissing plaintiff's complaint and cause of action with prejudice.

Pursuant to Local Rule 72.1(G)(5), any party may object to this recommendation within ten (10) days after being served with a copy thereof.

Dated: September ____, 2000

Karen K. Klein
United States Magistrate Judge