Summary: Plaintiff sought judicial review of SSA's denial of disability benefits. On cross motions for summary judgment, the court found that the ALJ's findings that plaintiff's claim of disabling pain is not credible and that plaintiff retains the RFC to perform a limited range of sedentary or light work, subject to limitations outlined by her physicians, are all supported by substantial evidence. Because the claimant's condition could be effectively relieved by medication, she was found not to be disabled.

Case Name: Collins v. SSA
Case Number: A3-99-81
Docket Number: 18
Date Filed: 9/18/00
Nature of Suit: 865

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

REPORT AND RECOMMENDATION

Plaintiff Nancy G. Collins (hereinafter "Collins," "claimant" or "plaintiff") 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 benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-433. Before the court are both parties' motions for summary judgment. (Doc. #13, 15). For the reasons articulated in this memorandum, the court recommends that defendant's motion be granted and the Commissioner's final decision be affirmed.

I. Background

Plaintiff filed a protective application for disability benefits on October 17, 1996, alleging a disability onset date of October 31, 1996. (Tr. 92-96). Her application was denied initially and on reconsideration. (Tr. 72, 73). Plaintiff timely requested a hearing before an Administrative Law Judge (ALJ). An administrative hearing was held on December 5, 1997. On February 9, 1997 the ALJ issued a decision finding that the plaintiff "has severe impairments diagnosed as chronic cervical dystonia and myofacial pain syndrome secondary to chronic cervical musculoligamentous sprain/strain (hereinafter "dystonia"), but that she does not have an impairment or combination of impairments listed in, or medically equal to [a listed impairment]." (Tr. 25). The ALJ further found that as of October 31, 1996, although plaintiff could not perform her past relevant work as a postal worker and secretary, she does retain the residual functional capacity to perform the physical exertional requirements for the full range of sedentary and light work, subject to limitations outlined by her physician. ⁽¹⁾ The ALJ also declined to accept the claimant's testimony as fully credible "in light of the material inconsistencies and incongruities disclosed and discussed in the credibility analysis." (Tr. 25). Thus, the ALJ determined that the plaintiff was not disabled as defined in the Social Security Act.

Plaintiff timely requested a review of the ALJ's decision by the Appeals Council. (Tr. 7). On or about March 19, 1999, the Appeals Council denied the plaintiff's request for review, affirming the decision of the ALJ as the final decision of the Commissioner. (Tr. 4). Subsequent to its denial, the Appeals Council was made aware of some additional evidence timely submitted for consideration. (Tr. 305). The Appeals Council considered the claimant's new contentions and evidence and again concluded that this additional evidence does not "provide a basis for changing the Administrative Law Judge's decision." ⁽²⁾ (Tr. 305-306). Accordingly, the Appeals Council again 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).

Under the Social Security Act, an individual is "disabled" if he or she is "unable to engage in any substantial gainful activity ⁽³⁾

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) (Supp. 1997). The impairment(s) must be so severe 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." 42 U.S.C. § 1382c(a)(3)(B) (Supp. 1997).

Claims of disability are evaluated using a five-step sequential review. See 20 C.F.R. § 416.920(a) (1997). ⁽⁴⁾ 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. ⁽⁵⁾ 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 []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 first argues that it was reversible error for the ALJ to substitute his own opinion for that of the treating physician. In particular, plaintiff asserts that the ALJ's opinion that Collins could have continued to work if she had kept taking high doses of Artane, the medication most effective to alleviate plaintiff's pain and symptoms, was not supported by objective medical evidence. However, the undersigned finds that there is significant evidence to the contrary and in support of the ALJ's position. In particular, the plaintiff's treating physician, Dr. Sollum, opined that the plaintiff was able to work in a sedentary or light work position with specific limitations. (Tr. 303). In addition, the ALJ noted that prior to plaintiff's alleged onset of disability she did work, despite her disabling condition. (Tr. 22). The ability to work for a period of years without any worsening of the condition precludes a claim of disability. See Dixon v. Sullivan, 905 F.2d 237, 238 (8^th Cir. 1990). In fact, the undersigned notes that the position which the claimant held was more physically taxing than those recommended by the vocational expert in light of the restrictions placed on the claimant by her physician. (Tr. 24). Thus, although the ALJ found that claimant is precluded from the performance of her past relevant work, she is able to do other jobs that exist in significant numbers in the national and regional economy. (Tr. 24-25). ⁽⁶⁾ Further, although the work exacerbated her condition, her pain was relieved by medication. (Tr. 210).

This takes us to the issue of the claimant's medication. The record is clear that Artane is the most effective medication in alleviating claimant's pain associated with her condition. On several occasions claimant ceased using the medication for one reason or another. ⁽⁷⁾ However, not until claimant ceased using the Artane did she claim she could no longer work. (Tr. 92). When she again commenced the use of the Artane in 1997 Dr. Sollum reported a "significant improvement" in plaintiff's condition. (Tr. 300). It is well recognized that a medical condition that can be controlled by medication is not disabling. Kisling v. Chater, 105 F.3d 1255, 1257 (8^th Cir. 1997). Thus, regardless of the reason for claimant's ceasing to take the effective medication, ⁽⁸⁾ once it was determined that her condition necessitated her taking the Artane, the ALJ's finding that she could engage in gainful employment so medicated was not in error.

Plaintiff also argues that the ALJ's finding that plaintiff's complaints of disabling pain and fatigue were not completely credible is not supported by substantial evidence and that the ALJ did not properly consider plaintiff's complaints under Polaski v. Heckler, 739 F.2d 1320 (8^th Cir. 1984). In stating that he accepted the claimant's testimony, for the most part, as reliable, the ALJ found that there is "a distant (sic) element of overstatement as to the intensity, duration and frequency of her allegations of pain and other subjective complaints, and also her limitations." (Tr. 19). After considering the evidence in the record as a whole, the undersigned finds that the ALJ properly evaluated plaintiff's subjective complaints under Polaski and that his credibility determination is supported by substantial evidence.

When evaluating a disability claim based on pain and/or fatigue, an ALJ must consider the claimant's subjective complaints under the standard set forth in Polaski. Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir. 1995). Under Polaski, the ALJ must consider all evidence presented that relates to plaintiff's subjective complaints in determining whether such complaints are credible evidence of a disability. ⁽⁹⁾ 739 F.2d at 1322. An ALJ may not reject a claimant's subjective complaints solely because of a lack of medical evidence. Benson v. Heckler, 780 F.2d 16, 17 (8th Cir. 1985). Furthermore, "before an ALJ may reject a claimant's subjective complaints of pain, the ALJ must make express credibility determinations" and "detail[] his reasons for discrediting the testimony." Ricketts v. Secretary of Health and Human Services, 902 F.2d 661, 664 (8th Cir. 1990); Brock v. Secretary of Health and Human Services, 791 F.2d 112, 114 (8th Cir. 1986). These specific findings "must demonstrate that [the ALJ] evaluated all the evidence" relevant to the claimant's pain. Herbert v. Heckler, 783 F.2d 128, 130 (8th Cir. 1986). Plaintiff asserts that the ALJ found Collins to not be fully credible because she admitted to being able to do a few household chores and because her fatigue symptoms were not recorded with any specificity in the medical records. First, as to the plaintiff's daily activities, the ALJ recognized that plaintiff's "activities of daily living" have no doubt been affected by her impairments. The ALJ concluded, however, that the record documents her retention of the ability to accomplish the activities and her activities are consistent with the functional capacity contained in the assessment by her physician. (Tr. 20-21). Although these minimal activities themselves do not constitute substantial evidence that claimant can engage in substantial gainful activity, Harris v. Secretary of Dep't of Health and Human Services, 959 F.2d 723, 726 (8^th Cir. 1992), they can be considered in assessing the credibility of the claimant's subjective complaints. Clark v. Shalala, 28 F.3d 828, 831 (8^th Cir. 1994). It is the opinion of the undersigned that the ALJ properly assessed these activities in determining the claimant was not entirely credible.

Plaintiff next asserts that the ALJ improperly discredited Collins' testimony concerning her need to nap and rest throughout the day because the specifics were not documented in the medical records. Plaintiff points out that her records do indicate that in fact she did tell Dr. Sollum of her fatigue. Dr. Sollum advised that it is not his practice to record the specifics of a person's resting pattern, except in cases when he determines precisely when people need to rest or nap. Dr. Sollum opined that, in his experience, fatigue is a common symptom of people with spasmodic torticollis. (Tr. 330-331). In response, the Commissioner asserts that the ALJ properly discredited Collins' subjective complaint as inconsistent with the record. The undersigned agrees. Although the ALJ may not dismiss the claimant's complaints of fatigue solely on the insufficiency of medical evidence, inconsistencies in the record noted by the ALJ permit the ALJ to disbelieve subjective complaints in such circumstances. Aborn v. Sullivan, 959 F.2d 111, 112 (8^th Cir. 1992).

The ALJ concluded that the lack of specificity in the record of the claimant's need to nap significantly eroded her credibility. (Tr. 21). Further, the nap period was not imposed by her physician as a course of treatment or even identified as necessary at the time Dr. Sollum outlined claimant's limitations and restrictions on April 28, 1998. (Tr. 302-303). In addition, Dr. Sollum opined it is feasible that Collins could work an 8 hour day, 40 hour work week, "if she could find a job within those restrictions and at that activity level." (Tr. 331). Dr. Sollum further suggested that a Functional Capacity Assessment would be helpful to more objectively assess the claimant's capabilities and restrictions. Although Dr. Sollum preferred a "two day Isernhagen FCE," (Id.), a Consultative Residual Functional Capacity Assessment ("RFCA") had been completed on January 7, 1997 and was affirmed as written on June 11, 1997. (Tr. 284-291). A review of the RFCA discloses no limitation on the number of hours claimant may work. In fact, the RFCA states that plaintiff may stand or walk for 6 hours in an 8-hour workday, with normal breaks, and sit for about 6 hours in an 8-hour workday. (Tr. 285). Further, the Commissioner employed the services of Dr. Ryan Harrington to provide a Neurological Consultation in May 1997. (Tr. 282-283). Dr. Harrington confirmed Dr. Sollum's diagnosis and noted that claimant stated that Artane "seems to help her condition." (Tr. 282). There is no suggestion in Dr. Harrington's report that the plaintiff is not able to work an 8-hour day, 40 hour workweek. (Tr. 282-283). Such inconsistencies favor the ALJ's determination that the claimant's subjective complaints of pain are not entirely credible.

Plaintiff's final argument in support of her position that the ALJ erred in his determination of not disabled is that he failed to consider and weigh the evidence submitted by lay witnesses. However, the ALJ did consider the lay witness testimony and although he found it to be "sincere," he concluded it was not to be afforded great weight because

the cumulative probative weight that can possibly be afforded thereto does not even begin to counter-balance or outweigh the degree of negative probative weight necessarily assigned to the inconsistencies and incongruities discussed and disclosed in the credibility analysis, the negative probative weight assigned to claimant's failure to follow recommended treatment with respect to taking Artane, especially (sic) such medication clearly enabled her to perform work activities thirty to forty hours per week which aggravated her condition, or the weight necessarily assigned to the valid and professionally objective opinion of claimant's treating physician regarding work-related limitations.

(Tr. 23). The undersigned finds that the ALJ was justified in discounting this testimony as contradictory to the medical evidence. See Ostronski v. Chater, 94 F.3d 413, 419 (8^th Cir. 1996)

(The testimony of the claimant's family was not afforded great weight as they "were not qualified to render an opinion as to [the claimant's] capacity to work; their statements merely corroborated [claimant's] testimony regarding her activities; and the testimony conflicted with the medical evidence regarding [claimant's] functional capabilities.").

The undersigned finds that the ALJ, in his opinion, systematically and painstakingly discussed each of the Polaski factors and the evidence in the record that was relevant to each factor. (Tr. 19-23). Thus, the undersigned finds that the ALJ properly considered plaintiff's complaints under Polaski and very adequately detailed his reasons for determining that plaintiff's subjective complaints were not fully credible.

In sum, the undersigned finds that the ALJ's findings that plaintiff's claim of disabling pain is not credible and that plaintiff retains the RFC to perform a limited range of sedentary or light work are all supported by substantial evidence.III. Conclusion

For the foregoing reasons, IT IS RECOMMENDED:

1. Plaintiff's motion for summary judgment be denied. (Doc. #13).

2. Defendant's motion for summary judgment be granted. (Doc. #15). Judgment should be entered affirming the decision of the Commissioner and dismissing plaintiff's complaint and cause of action.

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 this _____ day of September, 2000.

Karen K. Klein
United States Magistrate Judge

1. The claimant's work is subject to the following limitations identified by her physician and adopted in total by the ALJ: "The claimant has the residual functional capacity to perform the physical exertional requirements of work except for lifting and reaching the arms out in front of her body or overhead on more than an occasional basis, engaging in lifting activities out in front of her or above her head of more than 10 pounds, carrying at waist level more than twenty pounds, unilaterally carrying more than fifteen pounds on either side, lifting from floor to chair or floor to waist level more than twenty pounds on more than an occasional basis, working in jobs that do not allow the claimant to alternate between sitting and standing (with the ability to sit for twenty to thirty minutes at one time and stand for more than twenty to thirty minutes at one time), working in jobs which do not allow her to avoid prolonged chronic postural strain to the neck and upper back area, bending, stooping and twisting, especially with the upper body and torso, on more than an occasional basis, working at heights or on ladders, and working in jobs wherein the ability to balance is integral." (Tr. 26).

2. Plaintiff's argument that the Appeals Council committed reversible error by failing to review and consider the additional evidence is essentially rendered moot by the Appeals Council's supplemental opinion on April 18, 2000.

3. "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).

4. 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.

5. "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).

6. Because the ALJ found that Collins is not able to do past relevant work, the Commissioner bears the burden to show that a significant number of other jobs exist in the economy which plaintiff could perform. To determine what other jobs the claimant could do with the limitations delineated by her physician, the ALJ obtained the opinion of a vocational expert, Lorna Mathias. The hypothetical presented to Ms. Mathias was correct, absent the claimant's assertion of a need for a nap in the afternoon. Based on the claimant's age, work experience and education, as well as the residual functional capacity outlined by Dr. Sollum, Ms. Mathias testified claimant would be able to perform the jobs of receptionist, patient registration clerk, or security guard. Claimant chose not to cross-exam Ms. Mathias, waiving the opportunity to challenge her opinion. The ALJ is entitled to rely on the opinion of the expert to meet the burden of establishing that a significant number of jobs existed which plaintiff could perform. Onstad v. Shalala, 999 F.2d 1232, 1234 (8^th Cir. 1993).

7. The ALJ opined that the claimant's reason for ceasing the use of Artane, in order to become pregnant, is a personal reason and cannot serve as the basis for finding her disabled. Plaintiff asserts that she ceased using the medication at the advice of her doctor who wanted to give her a "drug holiday." Dr. Sollum explained in his letter dated April 28, 1998: "There are times when we decided to wean down and stop the Artane to see if, in fact, she could get by without it because I don't like to have people on medications forever if they don't need to be on them." (Tr. 330-332) (emphasis added).

8. Dr. Sollum did not specifically state that he was weaning the plaintiff from Artane in October 1996 in order to give her a "drug holiday." On a number of occasions claimant was advised to wean herself from the medication to "try for pregnancy." (Tr. 212). The ALJ's assumption that the claimant voluntarily ceased using Artane is well supported by the evidence.

9. The ALJ must consider all evidence of plaintiff's subjective complaints, 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 and aggravating factors; (4) dosage, effectiveness and side effects of medication; (5) functional limitations.

Polaski, 739 F.2d at 1322.