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 sedentary jobs. Although some evidence conflicted, the ALJ resolves those conflicts, not this court on appeal. The ALJ's discounting of plaintiff's subjective complaints of pain and limitation is supported by substantial evidence in the record. Although the plaintiff introduced new evidence, the evidence is not probative of plaintiff's condition for the time period at issue. Thus remand to the Commissioner to evaluate the new evidence is inappropriate. The SSA's decision was affirmed.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION

REPORT AND RECOMMENDATION

Plaintiff Patricia Ann Goodale initiated this action pro se 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. ⁽¹⁾ Both parties' motions for summary judgment are before the court. (Doc. # 42, 44.) For the reasons stated 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 April 9, 1996. (Tr. at 195-98.) Plaintiff alleges she has been disabled since January 14, 1992, having impairments diagnosed as mild cervical degenerative disc disease, bilateral carpal tunnel syndrome and a history of shortness of breath with mild to moderate airway obstruction. (Tr. at 15.) The Social Security Administration (SSA) denied plaintiff's application for disability benefits initially and upon reconsideration. (Tr. at 176-78, 184-85, 310-11.) Plaintiff timely requested a hearing before an ALJ. (Tr. at 188.) Following the administrative hearing, the ALJ found plaintiff's impairments are severe, but they do not destroy plaintiff's ability to perform basic work activities. (Tr. at 15.) The ALJ found plaintiff has the residual functional capacity (RFC) to perform the physical exertional requirements of work for a total of more than six hours in an eight-hour workday, standing and/or walking (with normal breaks) for more than one hour in an eight-hour workday, and lifting more than ten pounds. (Tr. at 25-26.) Although plaintiff could not perform her past work, based on the testimony of a vocational expert, the ALJ found that there were significant numbers of jobs available in the economy plaintiff could perform. (Tr. at 26.) Therefore, the ALJ concluded the plaintiff was not disabled under the Social Security Act. (Id.)

Plaintiff filed a request for review of the ALJ's decision with the Appeals Council (Tr. at 8-9.) 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).

Under the Social Security Act, an individual is "disabled" if he or she is "unable to engage in any substantial gainful activity ⁽²⁾

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. ⁽³⁾ 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's main argument revolves around the medical report of the doctor who examined plaintiff at the request of Disability Determination Services. Plaintiff claims the report of Dr. Bergom dated May 15, 1996, contains false information. For instance, Dr. Bergom makes reference to plaintiff's hands, but plaintiff claims he never investigated her hands. It appears Dr. Bergom's report is contradictory to plaintiff's characterization of the examination. Plaintiff argues the ALJ's reliance on this medical report is misplaced.

The ALJ certainly relied on the Bergom evaluation. However, there was little medical evidence in the record to compare with this evaluation. As the ALJ noted, plaintiff did not receive any medical treatment between August 22, 1994 and the appointment with Bergom on May 14, 1996. (Tr. at 19.) Moreover, such contradictions in evidence are properly resolved by the ALJ, not by an appellate court upon review. Cabrnoch v. Bowen, 881 F.2d 561, 564 (8th Cir. 1989) (concluding consonant with the law in this circuit, it was properly the function of the ALJ to resolve the numerous conflicts of opinion the evidence presented). The magistrate judge declines to recommend reversal of the decision of the ALJ by arbitrarily accepting one person's accusation over other evidence.

Plaintiff also argues her subjective pain and breathing limitations were not properly taken into account. She claims the pain in her neck, joints and chest are disabling and that her breathing problems do not allow her to do any exertional activities. The ALJ did not doubt plaintiff experiences pain and breathing problems, but concluded these subjective impairments are not disabling. (Tr. at 25.) The ALJ must evaluate plaintiff's claim of disabling pain under the factors of Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). (Tr. at 24-26.) 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 discounted plaintiff's claims of disabling pain and limitation caused by her impairments. The ALJ highlighted the aforementioned gap in plaintiff's medical record from August 1994 to May 1996. The ALJ noted plaintiff stated she did not seek medical attention because she could not afford it. However, because there was no indication plaintiff was refused care or that she tried to seek care at free clinics or clinics that offer services based on "ability to pay" schedules, the ALJ still discounted plaintiff's credibility. See Clark v. Shalala, 28 F.3d 828, 831 (8th Cir. 1994) (finding lack of medical treatment was a valid reason, among other reasons, to discount subjective pain because even though plaintiff lacked financial resources, she offered no testimony that she had been denied further treatment or access to prescription pain medication on account of financial constraints).

The ALJ also noted the lack of objective evidence supporting plaintiff's subjective complaints. See Richmond v. Shalala, 23 F.3d 1441, 1444 (8th Cir. 1994) (affirming ALJ's determination that plaintiff's complaints of pain were not totally credible in part because objective medical evidence did not fully support plaintiff's subjective complaints). Doctor Bergom's evaluation, the most recent one available to the ALJ, found plaintiff to be in no acute distress. (Tr. at 277.) Her nose was clear; her chest was clear, and her lungs were clear to auscultation and percussion. (Id.) He said both hands look normal, plaintiff had a negative Tinel's sign, good grasp and no muscle atrophy. (Id.) Bergom assessed that plaintiff possessed shortness of breath with no serious underlying disease process identified and bilateral carpal tunnel syndrome, minimally symptomatic. (Id.) He stated, "By our examination and the studies done, we do not feel that this lady is disabled. We suspect that she does get short of breath when placed under stress, but by objective criteria we feel that she could pursue any job that she is qualified for." (Id.)

The ALJ also noted some contradictions between plaintiff's statements and other evidence in the record. See Richmond, 23 F.3d at 1443 (concluding ALJ may discredit subjective complaints of pain if they are inconsistent with the evidence on the record). For instance, plaintiff claimed she needed to lie down approximately 5 hours and 40 minutes in an eight hour span of time, but there is no evidence plaintiff told a treating or examining physician of this problem. (Tr. at 355-56.) The ALJ also downgraded plaintiff's credibility because of the lack of any on-going medical treatment, use of only over-the-counter medication and some non-compliance with treatment remedies. See Richmond, 23 F.3d 1441, 1443-44 (concluding the lack of strong medication is inconsistent with subjective complaints of disabling pain). Based on the analysis above, there is substantial evidence supporting the ALJ's discounting of plaintiff's subjective complaints of pain and limitation.

Although plaintiff has not specifically raised the issue of whether this case should be remanded because of new evidence introduced since the Commissioner's decision, the court will analyze this issue because plaintiff has placed a considerable amount of evidence in the record subsequent to the Commissioner's decision. This court's review is limited to the administrative record that was before the Commissioner when the administrative proceedings ended. See 42 U.S.C. 405(g) (stating this "court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . . .) (emphasis added); Williams v. Bowen, 790 F.2d 713, 715 (8th Cir. 1986) (concluding the court is to determine whether there exists substantial evidence on the record viewed as a whole to support the Secretary's decision, not to receive additional evidence and try the issues de novo).

However, this court may consider additional evidence in the context of a motion to remand. The federal code provides for the remand of a case for the Commissioner to consider new evidence if the evidence is "material and . . . there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g). Material evidence is that which is non-cumulative, relevant, and probative of the claimant's condition for the time period for which benefits were denied. Rehder v. Apfel, 205 F.3d 1056, 1061 (8th Cir. 2000). ⁽⁴⁾ The time period at issue here is October 13, 1994 to October 28, 1997. (Tr. at 18, 27.)

Most of the medical records plaintiff has added to the record since the ALJ's decision do not relate to the relevant time period. Those that do relate to the relevant time period, such as Dr. Bergom's Notes of May 14, 1996, are cumulative to other evidence already in the record. The diagnosis of asthmatic bronchitis in February 1998 is likely probative of plaintiff's impairments, but it does not relate to the time period at issue. Thus, remand is inappropriate here. Plaintiff's remedy is to re-apply for disability benefits based on this new medical evidence.

III. Conclusion

In sum, although there are contradictions in evidence, such contradictions are properly resolved by the ALJ. 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. The new evidence plaintiff has produced since the Commissioner's decision is not probative of plaintiff's condition during the time period at issue here, making remand to the Commissioner to consider the evidence inappropriate. 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 the plaintiff retains the RFC for certain sedentary work.

IT IS RECOMMENDED:

1. Plaintiff's motion for summary judgment be denied (Doc. #42.)

2. Defendant's motion for summary judgment be granted. (Doc. #44.) 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(E)(4), 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

1. Plaintiff insists as she did in earlier efforts to litigate this matter, that this is a civil rights action for professional malpractice and not an action for judicial review of the Commissioner's decision denying her disability benefits. However, she has not alleged a viable civil rights claim. Instead, her complaint alleges "the defendant, Social Security Administration, has wrongfully and in bad faith withheld benefits due to the plaintiff" and "defendant's refusal to pay benefits due has compelled plaintiff to initiate litigation to recover those benefits." (Complaint at ¶ 14 and ¶ 14(d)). In addition to compensatory and punitive damages, her complaint seeks "a judgment requiring defendant to pay the total sum of past due benefits . . ." or "a declaration that plaintiff is entitled to SSA and SSI benefits for disability." (Complaint at ¶ 31). Thus, her action is properly construed as one for judicial review of the decision denying her application for benefits.

2. "Substantial gainful activity means the performance of substantial services with reasonable regularity either in competitive or self-employment." Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989).

3. "Basic work activities" are defined as "the abilities and aptitudes necessary to do most jobs," including:

(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;

(2) Capacities for seeing, hearing, and speaking;

(3) Understanding, carrying out, and remembering simple instructions;

(4) Use of judgment;

(5) Responding appropriately to supervision, co-workers and usual work situations; and

(6) Dealing with changes in a routine work setting.

20 C.F.R. § 404.1521(b) (1997).

4. The federal regulations provide, "If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision." 20 C.F.R. § 404.970(b). It is not clear whether the Appeals Council evaluated some or any of the new evidence, but this fact does not alter the rule requiring the new evidence to relate to the period on or before the date of the ALJ hearing decision.