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. The ALJ properly evaluated plaintiff's subjective complaints of pain and his decision to reject those complaints is supported by substantial evidence. The ALJ's finding that plaintiff's mental impairments are not severe is also supported by substantial evidence. The SSA's decision was affirmed.

Case Name: Hlebechuck v. SSA
Case Number: A3-99-146
Docket Number: 15
Date Filed: 9/18/00
Nature of Suit: 720

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

REPORT AND RECOMMENDATION

Plaintiff Jeffrey Hlebechuk 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 his 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. #10,12.) 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 February 3, 1997. (Tr. at 540.) Plaintiff alleges that he has been disabled since November 15, 1992, 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 372-73.) Plaintiff timely requested a hearing before an ALJ. (Tr. at 193-95.) Following the administrative hearing, the ALJ found plaintiff's upper extremity impairments are severe, but did not find past diagnoses of affective or personality disorders, or the umbilical hernia to be "severe." (Tr. at 20.) The ALJ found plaintiff has the residual functional capacity (RFC) to perform light exertional work, provided the work does not involve repetitive use of the dominant, left upper extremity for other than assistive purposes. (Tr. at 23.) The "light" work involves lifting of no more than twenty pounds on occasion and up to ten pounds with more frequency. (Id.) The ALJ found the plaintiff was no longer capable of performing his past relevant work, but there were significant numbers of jobs available in the economy that plaintiff could perform. (Tr. at 27-28.) Thus, the ALJ concluded plaintiff was not disabled under the Social Security Act. (Tr. at 28.)

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 6-7.) 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 ⁽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 brings two arguments in support of his assertion the ALJ's findings are not supported by substantial evidence. First, plaintiff disputes the ALJ's finding that plaintiff's psychological problems do not constitute a severe impairment. Thus, plaintiff argues the ALJ erred in not including plaintiff's psychological problems in the hypothetical questions asked of the vocational expert. In order to be considered severe, an impairment must significantly limit a claimant's ability to perform basic work activities. 20 C.F.R. § 404.1520(a).

In September 1995, plaintiff was evaluated after stopping in at Southeast Human Service Center. (Tr. at 470.) The evaluation found plaintiff to be in an angry mood. (Id.) The evaluator found plaintiff to be of average intelligence, with no psychotic ideation present; she found plaintiff's memory to be not good, as well as his judgment and problem solving ability. (Id.) Plaintiff was referred for psychiatric evaluation to Dr. Philip Hajek. (Tr. at 471.) In October 1995, Hajek found him to be alert, cooperative, with cognitive functions intact, psychomotor activities within normal limits. (Tr. at 467.) The doctor said plaintiff's affect is full and mood is even. (Id.) Hajek made the following recommendations:

At this point, I am refraining from placing the patient on any psychotropic medication. The patient( )s explosiveness and temper outbursts appear to be life-long and quite pervasive. The patient also feels quite justified in his actions as he often sees himself as being the victim of the system. Follow up will be on an as needed basis.

(Tr. at 468.) No physician has deemed plaintiff disabled because of a mental impairment.

There are no other objective medical findings in the record supporting plaintiff's claim of mental impairment. See e.g., Spradling v. Chater, 126 F.3d 1072, 1075 (8th Cir. 1997) (concluding ALJ may consider absence of medical evidence regarding alleged impairment). Furthermore, at the time of the hearing, plaintiff was not receiving ongoing mental health treatment. The ALJ also noted plaintiff's current work activities were inconsistent with a disabling mental impairment, as plaintiff was then working approximately 20 hours a week as a cook's helper at a local tavern. (Tr. at 21.) See Rose v. Apfel, 181 F.3d 943, 945 (8th Cir. 1999) (finding no severe mental impairment where plaintiff was leading an active lifestyle). Work at this level, while perhaps not substantial gainful activity, ⁽³⁾ is inconsistent with a claim that a mental impairment interferes with plaintiff's ability to use judgment or respond appropriately to others in a work setting.

Based on the inconclusive medical evidence, and the fact plaintiff is working part-time while not seeking mental health treatment, there is substantial evidence supporting the ALJ's conclusion plaintiff's mental impairment is not severe. See Spradling, 126 F.3d at 1075 (finding inconclusive medical evidence is best resolved by the ALJ).

Plaintiff next argues the ALJ improperly discounted his subjective pain. Plaintiff asserts that if his pain were properly credited, he would be considered disabled. The ALJ did not accept plaintiff's claim of uncontrollable debilitating pain, but said the plaintiff may have some discomfort and may be subject to episodic exacerbations. (Tr. at 26.)

In making a residual functional capacity (RFC) finding, 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). The ALJ in this case did. (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 carefully followed the factors in Polaski, properly considered plaintiff's complaints of pain and adequately detailed his reasons for rejecting plaintiff's claim of disabling pain. (Tr. at 24-26.) Several reasons given for the ALJ's conclusion stand out. Plaintiff continues to work part-time as a helper to a cook at a tavern. (Tr. at 85-86.) Plaintiff testified his duties on the job include getting food out of the freezer, putting food in the microwave and taking out the garbage. (Tr. at 86.) Plaintiff also testified at the hearing he was registered with Job Service and was seeking full-time employment. (Tr. at 90.) It is reasonable to find the continued search for employment undermines plaintiff's claim he is unable to work. Melton v. Apfel, 181 F.3d 939, 942 (8th Cir. 1999).

Plaintiff performs significant daily activities, such as walking several miles a day, caring for his personal needs, light household cleaning, preparing light meals, and driving an automobile. (Tr. at 93-100) Plaintiff also said he loaded and shot a handgun for target practice with his right non-dominant hand a year prior to the hearing. (Tr. at 123-24.) The ALJ noted plaintiff was evaluated by a hand specialist in March 1996, but plaintiff failed to follow through with the recommended testing, and he did not return to this physician until January 1997. (Tr. at 25.) Plaintiff also testified at the hearing before the ALJ he was not then taking any prescribed or over-the-counter medications. ⁽⁴⁾ (Tr. at 92.) This fact may reasonably lead one to lessen the credibility of a claim of debilitating pain. See Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999) (concluding lack of need for strong medication is a factor that may be used to discredit plaintiff's subjective allegations).

III. Conclusion

The ALJ's conclusion plaintiff's mental or psychological problems are not "severe" is supported by substantial evidence. Also, 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 RFC for certain light work.

IT IS RECOMMENDED:

1. Plaintiff's motion for summary judgment be denied (Doc. #10.)

2. Defendant's motion for summary judgment be granted. (Doc. #12.) 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