Opinion
Case No. 01-435 JRT/FLN
February 4, 2002
Jane M. Wirrer, Esq., for Plaintiff.
Roylene A. Champeaux, Assistant United States Attorney, for the Government.
REPORT AND RECOMMENDATION
THIS MATTER came before the undersigned United States Magistrate Judge on the Parties' cross-motions for summary judgment [## 5 and 7]. Plaintiff Gale Cousins ("Mr. Cousins" or "Plaintiff") seeks judicial review of the Commissioner of Social Security's final decision denying him a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act. See 42 U.S.C. § 416 (i), 423(d), 1381a, 1382c. The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405 (g) and 1383(c)(3). For the reasons which follow, the Court recommends that Plaintiff's Motion be denied and Defendant's Motion be granted.
I. PROCEDURAL HISTORY
Mr. Cousins filed an application for disability insurance benefits on August 28, 1998, alleging that he became disabled on April 5, 1996, due to residuals of a back impairment and multiple surgeries. (Tr. 17, 90-92.) His application was denied by the state agency initially and upon reconsideration, and after a hearing before an Administrative Law Judge ("ALJ"). (Tr. 29-31, 40-63, 70-83.) After considering additional evidence at Plaintiff's request, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 5-6.) Mr. Cousins submitted additional evidence to the Appeals Council which was duly made part of the record. (Tr. 7.)
II. FACTS
A. Background
Plaintiff was born on September 7, 1953, and was forty-six years old at the time of the ALJ's decision. (Tr. 17, 43, 90.) He has a high school education and has previous work experience as a truck mechanic, truck driver, auto mechanic, service station manager, hardware salesman, hired farm hand, school bus driver and cashier. (Tr. 17, 46, 107 149.) Mr. Cousins is married and lives with his wife and daughters. (Tr. 123.)
He stopped working on a full time basis sometime in June 1996, approximately two months after his alleged onset date of April 1996. (Tr. 46.) This position was as a cashier in a local hardware shop; however, the position exceeded his physical restrictions because it involved prolonged standing. (Id.) He is able to independently groom himself and perform other domestic tasks, but, he is unable to perform any chores that require bending, stooping or lifting heavy objects. (Id.) He is also able to drive a vehicle for approximately fifty miles before needing to stretch out. (Tr. 55-56.)
B. Medical Evidence
In September 1992, Mr. Cousins was involved in a work related accident and sustained a back injury that required surgery in November 1992. (Tr. 136.) Following this surgery, Mr. Cousins returned to work as a truck driver until he re-injured his back in 1995. (Id.; Tr. 45, 161.) This subsequent injury led to two surgeries to fuse three levels of his lower back. (Tr. 18, 136 161-163.)
The first surgery was performed on April 2, 1996, by Richard Salib, M.D., and involved placing implants in L3-4 and L4-5 levels in his back. (Tr.136, 162.) On July 31, 1996, Dr. Salib completed a Work-Ability Report in which he opined that Mr. Cousins could perform light work and was able to stand for thirty minutes at one time, carry, push or pull ten pounds, but was restricted from bending or lifting. (Tr. 201.) The record is unclear about the restrictions imposed on the number of hours he could work per day. (Id.) As previously Mr. Cousins did attempt working as a cashier at a hardware store; however, he had to resign after a few months because the duties went beyond his physical restrictions and required prolonged standing. (Tr. 17, 131.)
Dir. Salib was Mr. Cousins' treating orthopedic surgeon/physician for his back injury and surgeries. See Thomas v. Sullivan, 928 F.2d 255, 259 n. 3 (8th Cir. 1991) (citation omitted) (noting that the treating physician rule is premised, at least in part, on the notion that the treating physician is usually more familiar with a claimant's medical condition than are other physicians.).
Despite this initial improvement, the back pain returned and so on October 17, 2001, Dr. Salib performed the second back fusion surgery. (Tr. 151.) Mr. Cousins was discharged on October 21, 2001, and approximately two months later, Dr. Salib completed another Work-Ability Report in which he opined that Mr. Cousins could perform light work, as defined earlier, for approximately eight hours daily. (Tr. 151, 235.) Mr. Cousins attended regular physical therapy sessions and although his symptoms included some left leg pain, he was able to walk for one mile, twice daily by January 29, 1997. (Tr. 189.) On April 28, 1997, Dr. Salib completed a Functional Capacities Evaluation in which he opined that Mr. Cousins could not bend or stoop at all; however, he could squat continuously, climb stairs frequently, reach above shoulder level continuously, crouch and kneel frequently, balance continuously, push and pull weights of twenty-six pounds occasionally and ten pounds continuously, and carry up to thirty-five pounds occasionally. (Tr. 231-33.) Noting that Mr. Cousins felt well and essentially pain free, Dr. Salib released him to return to work. (Tr. 213.) At a follow up appointment on October 27, 1997, Dr. Salib noted that Mr. Cousins restrictions remained the same and that he had been working at a hardware store until recently. (Tr. 211.)
On April 15, 1998, Mr. Cousins presented to Dr. Salib for his two-year post surgery followup appointment. (Tr. 210.) Dr. Salib examined Mr. Cousins and noted that his range of motion was essentially normal as he had full flexion and extension and no pain on a single maneuver of this activity. (Id.) He also noted that the neurological examination and straight leg tests produced normal results and that there were no surgical complications. (Id.) Finally, Dr. Salib opined that Mr. Cousins' restrictions remained the same as before with no bending, lifting and repetitive motions of his spine being of import. (Id.) On May 26, 1998, in conjunction with a Worker's Compensation Mediation Resolution Award, Dr. Salib completed a Health Care Provider Report in which he indicated that Mr. Cousins had a permanent partial disability of twenty-seven and a half percent and had reached maximum medical improvement on April 28, 1997. (Tr. 93-95, 97.)
On August 28, 1998 and again on November 11, 1998, Mr. Cousins saw David Odland, M.D., for follow-up care. (Tr. 239.) Dr. Odland noted that Mr. Cousins was "not so much depressed" as he was just frustrated and recommended re-training. (Id.) No medical concerns were noted at this time and Mr. Cousins did not feel that he required psychological or psychiatric assistance at this time. (Id.) At the request of the state agency, a licensed psychiatrist, Jim Horgan, MA, UP, performed a psychological evaluation of Mr. Cousins on November 30, 1998. (Tr. 240.) Mr. Horgan noted that there was no personality disorder evident but provisionally diagnosed depressive symptoms directly related to his physical injuries. (Tr. 241.) On May 28, 1999, Kenneth Ogren, M.S., Mr. Cousins' Vocational Expert, opined that despite the fact that his client could carry up to thirty-five pounds, his inability to bend, stoop or lift precluded him from performing any jobs, whatsoever. (Tr. 131-138.)
On August 31, 1998, Russell Ludeke, Ph.D., L.P. reviewed Mr. Cousins' file and completed the Psychiatric Review Technique Form ("PRTF") (Tr. 243.) In completing the PRTF, Dr. Ludeke concluded that although Mr. Cousins had some symptoms of an affective disorder, they were not severe and did not meet or equal the criteria under Listing 12.04. (Id.) In completing the paragraph B criteria of the PRTF for determining the severity of the impairments, he concluded that Mr. Cousins: (1) experienced no restriction of activities of daily living; (2) experienced slight difficulties in maintaining social functioning; (3) seldom experienced deficiencies of concentration, persistence and pace; and (4) never experienced any episodes of deterioration or decompensation in work settings. (Tr. 250.) R. Owen Nelson, Ph.D. reviewed and affirmed Dr. Ludeke's findings on March 5, 1999. (Tr. 243.)
On September 27, 1999, Francisco Pecoraro, M.D. completed the Physical Residual Functional Capacity Assessment Form ("RFC"). (Tr. 252.) Dr. Pecoraro essentially confirmed Mr. Cousins' previous physical restrictions, noting that he could stand for at least two hours and sit, with normal breaks, for six hours in an eight hour work-day. (Tr. 253.) There were no other limitations. (Id.)
C. Plaintiff's Testimony
At the hearing before ALJ Holloway on October 19, 1999, Mr. Cousins, answering questions posed by the ALJ, testified about his surgical history and employment history. (Tr. 43-48.) At the time of the hearing, Mr. Cousins was working as a part-time, week-end cashier in a gas station, which amounted to seven or eight days per month, for five to seven hours per day. (Tr. 49-50.) Despite his employer's substantial accommodations, Mr. Cousins stated that he felt sore and had to "lay low" after working for a weekend. (Tr. 51.) He stated that he located the job on his own; however, given his physical limitations, there weren't too many work opportunities in his home town area. (Tr. 43-49, 50-52.)
Under examination by his representative, Mr. Cousins indicated that he could perform his current position on a full-time basis, but that he would be sore. (Tr. 51.) He subsequently stated that he really could not work for a full week and still function normally. (Tr. 52.) Mr. Cousins also reported "feeling pretty good" except for some shooting pain in his left leg for which he took over the counter, non-prescribed analgesics. (Tr. 50-51.) He testified that on a scale of one to ten, his daily pain would be at a four or five, but the pain would increase to a seven on the days he worked. (Tr. 57-58.)
Mr. Cousins testified that he tried to perform household and/or domestic tasks, but would experience pain and need to lie down for a while. (Tr. 52-53.) He also indicated that he would "get stiff" if he sat for extended periods of time, could not ride in a vehicle for more than fifty miles without stopping to stretch. (Id.) He is not socially active and enjoys attending his daughter's sporting events; however, had to sit at the top of the bleachers during said events so as not to obstruct anyone's view if he needed to stand up. (Tr. 55.) Overall, Mr. Cousins indicated that he performs some activities that are beyond his restrictions and needs to "lie low" for a day or two thereafter. (Tr.56.)
D. Vocational Expert's Testimony
The Vocational Expert ("VE"), Tom Avdet, testified at the hearing. (Tr. 63.) The ALJ posed a hypothetical question which assumed an individual of Mr. Cousins', age, experience and background, who was restricted to light work exertionally and had the same impairments. (Tr. 63-64.) The ALJ then asked whether such a hypothetical person could perform any of Mr. Cousins, previous work. (Tr. 64-65.) The VE testified that the only previous jobs the hypothetical person could perform would be the cashierjobs; however, he also agreed that there were numerous unskilled jobs, such as a Cashier II position and a parts clerk or parts sales person, that would accommodate the hypothetical person's limitations. (Tr. 65-66.) Under examination by Mr. Cousins' representative, the VE also noted that frequent absences and needing more than usually scheduled breaks would preclude any type of competitive employment and that there were enough cashier positions that were consistent with Mr. Cousins' restrictions. (Id.)
E. The ALJ's Decision
In determining whether or not Mr. Cousins was disabled, the ALJ followed the five-step sequential process outlined at 20 C.F.R. § 404.1520. (Tr. 19.) At the first step in the process, the ALJ evaluated whether Mr. Cousins engaged in substantial gainful activity since the date of alleged onset of disability and concluded that he had not engaged in substantial gainful activity at any time relevant to this decision. (Id.)
At the second step in the sequential evaluation, the ALJ determined whether or not Mr. Cousins had a "severe" impairment, which is defined as an impairment which imposes more than a minimal effect on Mr. Cousins' physical or mental ability to perform basic work-related activities. (Tr. 19; 20 C.F.R. § 404.1521). After weighing the record evidence, the ALJ found that Mr. Cousins' degenerative disc disease and history of back fusion surgeries comprise a severe back impairment that limits his ability to perform basic work activities. (Tr. 20.)
The ALJ also considered the psychological reports and concluded that Mr. Cousins did not have an affective disorder that affects his ability to work. Mr. Cousins does not challenge this conclusion and as such, it will not be addressed by this Court.
After finding that Mr. Cousins' impairment was "severe," the ALJ determined that it was not attended with the specific clinical signs and diagnostic findings required to meet or equal the requirements set forth in the Listing of Impairments, Appendix 1 to Subpart P, Regulations No. 4. (Tr. 21.) In making this determination, the ALJ specifically considered all of Mr. Cousins' impairments, both individually and in combination. (Id.)
Having determined that Plaintiff's restrictions were "severe" and that a dispositive determination could not be made based on medical considerations alone, the ALJ proceeded to Steps Four and Five of the sequential evaluation, where he determined whether Mr. Cousins retained the Physical Residual Functional Capacity ("RFC") to perform light duty work with no capacity for bending or stooping. (Tr. 21-22.) In determining Mr. Cousins' RFC, the ALJ granted significant weight to Dr. Salib's treatment notes and the extensive surgical and physical therapy medical records. (Tr. 21-23.) He also rejected Mr. Cousins' VE's, Mr. Ogren, opinion that Mr. Cousins was unable to perform any work whatsoever as inconsistent with the RFC, the record medical evidence and Dr. Salib's treatment notes. (Id.)
The ALJ also considered the credibility of Mr. Cousins' subjective complaints in accordance with 20 C.F.R. § 404.1529 and Social Security Ruling 96-7p and concluded that while Mr. Cousins' subjective complaints were honest and sincere, his allegations of being unable to work were unsupported by his treating surgeon's/physician's records, his level of activities, his lack of medical attention since 1998, and because no physician ever imposed any significant exertional limitations, other than light duty work, or restricted Mr. Cousins from full-time work. (Tr. 23-27.) Having considered all of the factors up to that point in his analysis, the ALJ determined that Mr. Cousins retained the functional capacity for a wide range of light duty work that does not involve bending or stooping, affords Mr. Cousins the opportunity to stand or sit alternately and involves lifting no more than twenty pounds on occasion and up to ten pounds with more frequency. (id.)
Finding the VE's testimony credible and persuasive, the ALJ found that Mr. Cousins' past relevant work exceeded his RFC; however, he retained the RFC to perform a significant number of jobs existing in the Minnesota economy. (Tr. 27-30.) Ultimately, the ALJ concluded that Mr. Cousins did not meet the relevant statutory criteria for a finding of disability at any time relevant to the adjudication. (Id.)
III. STANDARD OF REVIEW
Judicial review of the final decision of the Commissioner is restricted to a determination of whether the Secretary's findings are supported by substantial evidence. See Gavin v. Heckler, 811 F.2d 1195, 1197-99 (8th Cir. 1987); Taylor v. Bowen, 805 F.2d 329, 331 (8th Cir. 1986). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); 42 U.S.C. § 405 (g). The Eighth Circuit has expanded upon this substantial evidence standard, holding that the Commissioner's decision must be based upon substantial evidence on the record as a whole. See Wilson v. Sullivan, 886 F.2d 172, 175 (8th Cir. 1989). This expanded standard requires the court to do more than search for the existence of substantial evidence which supports the Commissioner's findings. Id. at 175. The substantiality of the evidence must take into account whatever is in the record that fairly detracts from its weight. See Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989) (citing Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1951)). However, the Court "may not reverse merely because substantial evidence would have supported an opposite decision." Gaddis v. Chater, 76 F.3d 893, 895 (8th Cir. 1996) (internal citations omitted).
IV. ISSUE ON APPEAL
Did the ALJ err by adopting the opinion of the VE whose opinion was premised on a faulty hypothetical?
V. CONCLUSIONS OF LAW
In moving for summary judgment, Mr. Cousins challenges the ALJ's decision on the ground that the ALJ erred in relying upon the VE's testimony, because the hypothetical question on which the VE based his testimony omitted relevant testimony from the claimant, the treating orthopedic surgeon and Mr. Cousins' VE, Mr. Ogren.
We disagree. Specifically, Mr. Cousins erroneously assumes that the ALJ found his testimony regarding his pain and inability to work credible. The ALJ evaluated Plaintiff's subjective complaints of pain in accordance with the requirements of 20 C.F.R. § 404.1529; Social Security Ruling 96-7p and Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). The record reveals that the ALJ conducted a careful analysis in compliance with the guidelines in Polaski and properly applied the foregoing criteria to the evidence of record before issuing his decision as to Mr. Cousins' subjective allegations of disabling pain. The transcript reveals that the ALJ elicited testimony from Mr. Cousins on the fivePolaski subjects, applied it to his analysis and concluded that although Mr. Cousins' subjective complaints were honest and sincere, his allegations of being unable to work were unsupported by his treating physician's records, his level of activities and his lack of medical attention since 1998. Furthermore, the medical findings directly contradicted Mr. Cousins' allegations of inability to work, especially since no physician, including his treating surgeon, concluded that he was unable to work. See Bolton v. Bowen, 814 F.2d 536, 538 (8th Cir. 1987) (no medical evidence to support assertions of subjective pain discounts credibility of assertions of disabling pain).
In Polaski, the Eighth Circuit demanded that:
[the ALJ] give full consideration to all of the evidence relating to subjective complaints, including the Plaintiff's prior work record, and observations by third parties and treating and examining physicians relating to such matters as:
1. the Plaintiff's daily activities;
2. the duration, frequency and intensity of pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of medication;
5. functional restrictions.
Taken together, these facts comprise far more than the substantial evidence on the record as a whole that this Court needs to sustain the ALJ's decision to discount Mr. Cousins' testimony about his inability to work. See Browning v. Sullivan, 958 F.2d 817, 821 (8th Cir. 1992) (noting that the Eighth Circuit will not disturb the decision of an ALJ who seriously considers, but for good reasons explicitly discredits, a Plaintiff's testimony of disabling pain). In making this determination, the Court bears in mind that the ALJ's credibility finding is entitled to considerable deference. See e.g., Johnson v. Chater, 87 F.3d 1015, 1018 (8th Cir. 1996) (court does not substitute its opinion of the Plaintiff's credibility for that of the ALJ). "Where there are inconsistencies in the evidence, the ALJ may discount subjective complaints." Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1996). Inconsistencies between subjective complaints of pain and daily living patterns may also diminish credibility. Id. Accordingly, this Court finds that substantial evidence on the record as a whole supports the ALJ's decision as to Mr. Cousins' credibility regarding his inability to work and concludes that the ALJ's decision need not be reversed for this reason.
The Court reject's Mr. Cousins' contention that the ALJ's hypothetical omitted testimony from Dr. Salib, the treating orthopedic surgeon. Not only did Dr. Salib not appear at the hearing, but Mr. Cousins fails to identify "testimony" he is referring to. Furthermore, the record evidence clearly reveals that the ALJ carefully considered Dr. Salib's medical opinions and relied on them in creating the hypothetical and reaching his conclusions of import is the un-controverted fact that no physician, including Dr. Salib, ever concluded that Mr. Cousins was unable to work.
Finally, Mr. Cousins argues that the ALJ's hypothetical omitted relevant testimony from his VE, Mr. Kenneth Ogren, relating to his inability to work. Once again, Mr. Cousins erroneously assumes that the ALJ summarily dismissed Mr. Ogren's opinion. The record evidence reveals that the ALJ rejected Mr. Ogren's opinion that Mr. Cousins was unable to perform any work whatsoever as inconsistent with the RFC, the record medical evidence and Dr. Salib's treatment notes. See Pertius v. Apfel, 152 F.3d 1006 (8th Cir. 1998) (holding that it is perfectly acceptable for the ALJ's hypothetical question to only include those limitations accepted as credible and supported by the evidence). Consequently, this Court finds that the ALJ's decision to reject Mr. Orgen's opinion was supported by substantial evidence.
Based on the foregoing, this concludes that the hypothetical question contained all the restrictions and impairments for which the ALJ found credible evidence. Substantial evidence on the record as a whole supports the ALJ's choices in this regard and it was perfectly acceptable for the ALJ's hypothetical question to only include those limitations accepted as credible and supported by the evidence. See Pertius v. Apfel, 152 F.3d 1006 (8th Cir. 1998). Accordingly, this Court finds that the ALJ's hypothetical posed to the VE was supported by substantial evidence and the ALJ's decision need not be reversed.
In so far as Mr. Cousins' challenges Mr. Advets', the neutral VE, conclusions about potential jobs that qualify as "light duty work" and conform with Mr. Cousins' limitations, this Court concludes that at least one of the potential jobs identified by Mr. Advet, Cashier II, was not beyond Mr. Cousins' limitations or abilities. Furthermore, although there are inconsistencies between the relevant DOT job descriptions for parts clerk or parts sales person jobs and Mr. Cousins' limitations, such discrepancies are not fatal since the VE can identify jobs inconsistent with DOT descriptions. See Whitehouse v. Sullivan, 949 F.2d 1005, 1007 (8th Cir. 1991).
VI. RECOMMENDATION
Based on the files, records and proceedings herein, IT IS HEREBY RECOMMENDED that:1. Plaintiffs Motion for Summary Judgment [#5] be DENIED;
2. Defendant's Motion for Summary Judgment [#7] be GRANTED.
Pursuant to Uocal Rule 72.1(c)(2), any party may object to this Report and Recommendation by filing with the Clerk of Court and serving on all parties, within ten days of this Report and Recommendation, written objections which specifically identify the portions of the proposed findings, recommendations or report to which objection is being made, and a brief in support thereof. A party may respond to the objecting party's brief within ten days after service thereof. All briefs filed under this rule shall be limited to ten pages. A judge shall make a de novo determination of those portions to which objection is made.
This Report and Recommendation does not constitute an order or judgment of the District Court, and it is therefore not appealable to the Circuit Court of Appeals.