Opinion
Civil No. 02-4909 ADM/RLE
March 25, 2004
Daniel Storm Rethmeier, Esq., Rethmeier Law Office, St. Cloud, Minnesota, for Plaintiff
Lonnie F. Bryan, Minneapolis, MN, for Defendant
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge pursuant to Plaintiff Betty J. Hill's ("Plaintiff') Objection ("Objections") [Docket No. 14] to the January 28, 2004 Report and Recommendation ("RR") of Magistrate Judge Raymond L. Erickson [Docket No. 12]. The RR recommends Plaintiff's Motion for Summary Judgment [Docket No. 8] be denied and Defendant Jo Anne B. Barnhart's ("Defendant") Motion for Summary Judgment [Docket No. 10] be granted. For the reasons set forth below, the RR is adopted.
II. DISCUSSION
Although the Objections were not filed until approximately two weeks after the deadline specified in the RR, Plaintiff submitted a concurrent Motion to Extend Time [Docket No. 15], explaining that the delay was due to technical difficulties. The Court will grant Plaintiff's requested extension and will consider the merits of the Objections. The factual background for this matter is detailed in the RR and is incorporated by reference for the purpose of Plaintiff's present Objections.
The district court must undertake an independent, de novo, review of those portions of the RR to which objection is made and "may accept, reject, or modify, in whole or part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); see also D. Minn. LR72.1(c)(2).
The RR recommends affirming the disability determination of the Administrative Law Judge ("ALP') and thus denying Plaintiff's request for Social Security benefits. Plaintiff objects to three portions of the RR. First, she objects to the discounting of the opinion Dr. Garry Banks ("Dr. Banks"), one of Plaintiff's treating physicians, concerning her physical condition and restrictions. Second, Plaintiff objects to Magistrate Judge Erickson's adopting of the ALJ's credibility determination of her subjective reports of pain. Finally, she challenges the conclusion that the hypothetical question posed to the Vocational Expert ("VE") by the ALJ is supported by substantial evidence.
A reviewing court must affirm the decision of the Commissioner if it is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405 (g); Holley v. Massanari, 253 F.3d 1088, 1091 (8th Cir. 2001). While less than a preponderance, substantial evidence is enough that a reasonable mind would find it sufficient to support the conclusion reached. Holley, 253 F.3d at 1091. The Court should not reverse the Commissioner's finding merely because evidence may exist to support the opposite conclusion. Mitchell v. Shalala, 25 F.3d 712, 714 (8th Cir. 1994). Instead, the Court applies a balancing test in considering the weight of contradictory evidence in the record.Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987). As long as substantial evidence of record exists, the court may not reverse the ruling of the Commissioner even if it would have reached a different decision. Holley, 253 F.3d at 1091.
A. Opinion of Plaintiff's Treating Physician
Plaintiff first disputes the RR's agreement with the ALJ in declining to give controlling weight to the opinion of Dr. Banks, Plaintiff's surgeon, concerning the nature and severity of her impairment.
The ALJ discounted the June 25, 2001 recommended restrictions of Plaintiff's spinal specialist because he found they were contradicted by other evidence in the record. Dr. Banks advised that Plaintiff be permanently restricted to lifting, carrying, pushing or pulling no more than five pounds, and totally restricted from bending, twisting, turning, kneeling, squatting, and overhead reaching. Tr. at 278. He opined Plaintiff should change positions every fifteen minutes. Id. at 279. While these restrictions tend to detract from the ALJ's decision, they were set approximately six weeks after the Plaintiff's cervical spine surgery and five months prior to her lower back surgery, and subsequent to both surgeries Plaintiff reported improvement in her pain and denied numbness or weakness. Id. at 279, 315, 330. Additionally, Dr. Banks later advised that the Plaintiff was to gradually progress to walking and light activities. Id. at 330. Therefore, the ALJ's determination not to accord full weight to the June 2001 recommended restrictions is supported by the record when viewed in whole. See Mitchell, 25 F.3d at 714 (court should not reject ALJ's findings merely because contrary evidence exists).
Notably, a physical assessment of Plaintiff dated April 16, 2001, sets forth significantly less restrictive limitations. Tr. at 290-97.
B. ALJ's Determination of Plaintiff's Credibility
Plaintiff asserts that her subjective complaints are "fully consistent with a person subjected to invasive surgical procedures and a person carrying limitations as set forth by her treating specialist physician," and therefore that the evidentiary inconsistencies identified by the ALJ and his resultant credibility determination are unsupported. Pl's Objections at 3.
When assessing the Plaintiff's subjective assertions of pain and impairment and weighing their credibility, the ALJ must make an explicit credibility determination, and if discrediting the testimony, must state his reasons for doing so. Shelton v. Chater, 87 F.3d 992, 995 (8th Cir. 1996); Robinson v. Sullivan 956 F.2d 836, 839 (8th Cir. 1992) (stating that when discrediting a claimant's complaints of pain the ALJ must expressly "set forth on the record inconsistencies that lead to this conclusion"). Credibility findings must be supported by substantial evidence. Robinson 956 F.2d at 839.
In examining the Plaintiff's subjective claims of pain, the ALJ is to evaluate and explain his conclusions regarding the observations of third parties and physicians as to:
1. the claimant's daily activities;
2. the duration, frequency, and intensity of the pain;
3. precipitating and aggravation factors;
4. dosage, effectiveness, and side effects of medication;
5. functional restrictions.
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984);Shelton, 87 F.3d at 995. The ALJ may not disregard subjective testimony of symptoms solely based on an absence of objective medical evidence, though lack of such evidence may be a factor in discounting a Plaintiff's claims. Jones v. Chater, 86 F.3d 823, 826 (8th Cir. 1996).
The ALJ discredited the Plaintiff's complaints of pain because he found significant inconsistencies in the record. Tr. at 20. Without citation to the record, Plaintiff asserts her subjective reports are corroborated by other evidence. Although Plaintiff did report some level or area of pain or discomfort to her physicians on a consistent basis, the decision not to fully credit Plaintiff's description of her symptoms and their severity is supported by the medical documentation. As considered and cited by the ALJ, Plaintiff's testimony of ongoing severe stabbing low back pain, and of only 25 percent relief in pain following her surgeries, was not consistent with her post-operative reports to her doctor. Tr. at 20, 279, 315, 330. The ALJ additionally noted that Plaintiff's reported past or ongoing hobbies of "crocheting, knitting, working on the computer, and reading, were inconsistent with her claims of radicular symptoms in her upper extremities." Tr. at 21; see also Tr. at 135. As the adjudicator present at the hearing, "the ALJ is in the best position to gauge the credibility of testimony and is granted deference."Sarna v. Barnhart, 32 Fed. Appx. 788, 791 (8th Cir. 2002). Accordingly, the Court "will defer to the ALJ's findings when they are sufficiently substantiated by the record," and the RR is affirmed on this point. Ramirez v. Barnhart, 292 F.3d 576, 581 (8th Cir. 2002).
C. Vocational Expert Hypothetical
Plaintiff next objects to the hypothetical question posed to the VE in order to determine whether or not Plaintiff's impairments resulted in vocational incapacity. Based on the ALJ's hypothetical, the VE testified that Plaintiff would be able to perform her past relevant work as a woman's advocate. Tr. at 49. Plaintiff argues that the formulation of the hypothetical was flawed because the ALJ failed to incorporate the opinion of Dr. Banks and improperly discredited Plaintiff's testimony. Plaintiff contends that because the hypothetical was incomplete, it did not fully set forth her impairments and therefore could not serve as an appropriate basis for the VE's assessment. The Court disagrees.
While the ALJ's hypothetical question "must fully set forth a claimant's impairments" to render the VE's opinion reliable, "it needs only include those impairments accepted by the ALJ as true." Rappoport v. Sullivan, 942 F.2d 1320, 1323 (8th Cir. 1991): see also Stout v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993). As discussed above, the ALJ found the restrictions recommended by Dr. Banks contradicted by other evidence of Plaintiff's condition, and thus he was not required to include them in the hypothetical question. Similarly, for the reasons noted above, the ALJ did not accept Plaintiff's subjective complaints of pain. As such, the hypothetical question adequately incorporated all the relevant impairments the ALJ found to be supported by substantial evidence. Plaintiff's objection to this portion of the RR is denied.
III. CONCLUSION
Based upon the foregoing, and all of the files, records, and proceedings, herein, IT IS HEREBY ORDERED that:
1. Plaintiff's Motion to Extend Time [Docket No. 15] is GRANTED,
2. Plaintiff's Objection [Docket No. 14] is DENIED,
3. The RR [Docket No. 12] is ADOPTED,
4. Plaintiff's Motion for Summary Judgment [Docket No. 8] is DENIED and
5. Defendant's Motion for Summary Judgment [Docket No. 10] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.