Opinion
Civil No. 03-3368 (DWF/RLE).
September 16, 2004
Fay E. Fishman, Esq., Peterson Fishman, Minneapolis, MN, counsel for Plaintiff.
Lonnie F. Bryan, Assistant United States Attorney, Minneapolis, MN, counsel for Defendant.
ORDER
Introduction
This matter is before the undersigned United States District Judge pursuant to Plaintiff Judy Metzger's ("Plaintiff") objections to the July 1, 2004, Report and Recommendation ("RR") (Doc. No. 10) of Magistrate Judge Raymond L. Erickson. The RR recommended that Plaintiff's motion for summaryjudgment be deniedand thatDefendant Jo Anne B. Barnhart's ("Defendant" or "Commissioner") motion for summary judgment be granted. For the reasons set forth below, the Court declines to adopt the RR. Plaintiff's motion for summary judgment is granted and Defendant's motion for summary judgment is denied. The case will be remanded for a determination of benefits. The factual and procedural background of this case is set forthat considerable lengthinthe RR and is incorporated by reference for the purposes of Plaintiff's present objections.
Discussion
I. Standard of ReviewA district court must make an independent, de novo evaluation of those portions of an RR to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); D. Minn. LR 72.1(c)(2).
When reviewing a denial of benefits, the Commissioner's final decision must be upheld if it is supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g); see also Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999); Whitehouse v. Sullivan, 949 F.2d 1005, 1006 (8th Cir. 1991). Substantial evidence is that which a reasonable mind might accept as adequate to support the Commissioner's conclusion. See Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
In assessing the substantiality of the evidence, a court must consider evidence that detracts from the Commissioner's decision as well as evidence that supports it. See Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998); see also Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993); Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992); Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984). This standard "allows for the possibility of drawing two inconsistent conclusions, thus it embodies a zone of choice within which the Commissioner may decide to grant or deny benefits without being subject to reversal on appeal." Turley v. Sullivan, 939 F.2d 524, 528 (8th Cir. 1991) (citing Bland v. Bowen, 861 F.2d 533, 535 (8th Cir. 1988)).
A court may not reverse the Commissioner's decision "merely because substantial evidence would have supported an opposite decision." Baker, 730 F.2d at 1150. Rather, if it is possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, then the Commissioner's decision must be affirmed. See Young, 221 F.3d at 1068 (citing Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995)).
II. Plaintiff's Objections
Plaintiff raises three objections to the Magistrate Judge's recommendation that the ALJ's decision be upheld, namely that the ALJ: (1) did not give sufficient weight to plaintiff's subjective complaints; (2) did not give sufficient weight to the opinions of Dr. Carol Sharpe, Plaintiff's treating physician; and (3) improperly relied on the vocational expert's testimony.
III. Plaintiff's Subjective Complaints of Pain
Plaintiff asserts that the ALJ did not adequately take into consideration her subjective complaints of pain, as the ALJ is required to do pursuant to Polaski v. Heckler. Plaintiff points out that the ALJ found that "the claimant's subjective complaints are generally credible." (Tr. at 22.) However, Plaintiff contends that throughout the ALJ's report the ALJ failed to consider several Polaski factors and that the ALJ's analysis of those factors that were considered was flawed.
In Polaski, the EighthCircuit established severalfactorsthatthe Courtmust consider when evaluating subjective complaints. See Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984). The factors include objective medicalevidence, claimant's work record, and observations by the treating or examining physicians and third parties regarding: (1) 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; and (5) functional restrictions. See id.
Specifically, Plaintiff asserts that the ALJ failed to consider the significance of the side effects of Plaintiff's medications on her ability to work. Plaintiff testified that the use of her medication made it difficult to concentrate and that she would sometimes have to lie down after taking her medications. Plaintiff's treating physician, Dr. Carol Sharpe, also indicated that the use of Plaintiff's medications would result in grogginess. Plaintiff asserts that the ALJ found her and her treating physician's testimony on this matter to be credible but that the ALJ failed to consider the effect of Plaintiff's medication on her when considering whether she would be able to work. Plaintiff also asserts that the ALJ failed to adequately discuss several Polaski factors, including: the precipitating and aggravating factors, or the nature, location, onset, duration, frequency, radiation and intensity of subjective complaints.
Plaintiff asserts that the factors that were considered were analyzed in a flawed manner. For instance, Plaintiff points out that the Magistrate Judge found that the ALJ had "overstated the extent of the Plaintiff's activities" when performing his analysis. (RR at 49, n. 23.) Plaintiff claims that the ALJ's flawed consideration of this factor is particularly troublesome because the ALJ based his opinion that the Plaintiff was not disabled in part on his opinion that the Plaintiff's level of activities was equal to, if not greater than, the demands of work.
The Court finds that the ALJ failed to properly analyze and discuss the Polaski factors in determining Plaintiff's ability to work. The ALJ stated that his decision was based on a consideration of the Polaski factors, but nowhere in the ALJ's decision are the individual factors discussed except in a general manner as they relate to the testimony presented at the hearing. "Merely quoting Polaski is not good enough, especially when an ALJ rejects a claimant's subjective complaints of pain." Hall v. Chater, 62 F.3d 220, 223 (8th Cir. 1995).
The Court also finds that the ALJ's decision as to those Polaski factors that were discussed are not supported by substantial evidence. As previously stated, the Magistrate Judge stated in the RR that the ALJ had "overstated the extent of the Plaintiff's activities" when performing his analysis of Plaintiff's ability to work. (RR at 49, n. 23.) The Court agrees wholeheartedly with the Magistrate Judge's assertion.
The ALJ appeared to rely primarily on his assertion that the Plaintiff is not significantly restricted in her daily life in determining that the Plaintiff had the ability to work. In particular, the ALJ stated that the Plaintiff was able to "drive, cook, visit with friends and relatives, shop, perform housework, eat out at restaurants on occasion, take care of her personal needs, and maintain concentration when reading and watching television." (Tr. at 21.) In reviewing the testimony at the hearing before the ALJ, the Court finds that all of the evidence presented indicated that the Plaintiff was unable to handle these day-to-day tasks.
Plaintiff's uncontested testimony at the hearing was that she was unable to care for her son's children (Tr. at 32), that she was not able to take the children outside of her son's home (Tr. at 32), that she could not vacuum or sweep her son's home (Tr. at 41), that she could do dishes but would need to lie down immediately afterwards (Tr. at 41), that she could shop for one or two items at a time (Tr. at 44), that she was unable to perform basic housekeeping tasks (Tr. at 45), and that she lacked the concentration to watch television or read books (Tr. at 47). The ALJ's finding that Plaintiff is not significantly restricted in her daily life is not supported by the record.
IV. Consideration of Dr. Carol Sharpe's Opinion
Plaintiff contends that the ALJ improperly failed to give the appropriate weight to the opinions of Dr. Carol Sharpe regarding Plaintiff's inability to work. The opinion of a treating source is entitled to greater weight and deference than that of a non-treating source. See Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000). However, the opinions of a treating source physician are not conclusive in determining disability. See Cunningham v. Apfel, 222 F.3d 466, 502 (8th Cir. 2000). Only where the medical opinions of a treating source physician are well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record is it controlling. See Holmstrom v. Massanari, 270 F.3d 715, 720 (8th Cir. 2001). An ALJ can disregard the opinion of a treating source physician if other medical assessments are supported by better or more thorough medical evidence. See Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000).
Plaintiff asserts that the ALJ failed to give appropriate weight to the opinions of the Plaintiff's treating physician. First, Plaintiff asserts that the ALJ failed to explain why he was not relying on the treating physician's opinions. Second, Plaintiff points out that the opinions of Dr. Carol Sharpe and that of the neutral medical expert, Dr. John LaBree, are in substantial agreement regarding Plaintiff's physical condition.
Dr. Carol Sharpe testified that she had treated the Plaintiff since 1982 and that the medical records indicate that the Plaintiff had migraine headaches two or three times a week since the early 1970's. Dr. Sharpe described the pain associated with the migraines as severe and stated that Plaintiff would be unable to perform even basic work activities while experiencing the migraines. Dr. Sharpe testified that the Plaintiff needed to lie down in a dark area during the migraines and would likely miss two to three days a week of work as a result. Finally, Dr. Sharpe testified that it was her opinion that Plaintiff was incapable of work given her various physical ailments.
Dr. John LaBree stated that Plaintiff's impairments were not of sufficient severity to meet or equal a listed impairment. However, Dr. LaBree did so without figuring into his opinion the effect of the migraines on Plaintiff's ability to work. Dr. LaBree discounts the effect of the migraines by stating that they are subjective and as such he "can't measure that in any way." (Tr. at 64.) Although he does not comment otherwise on the migraines, Dr. LaBree does acknowledge that Plaintiff has been diagnosed with migraines and that people with migraines will often need to lie down to relieve the pain. (Tr. at 65.)
The Court finds that the ALJ failed to give appropriate weight to the opinions of Plaintiff's treating physician. The ALJ's decision paraphrases the testimony of Dr. Sharpe and Dr. LaBree, but it does not describe why the ALJ discounts the effect of the migraines on the Plaintiff's ability to work. The Court recognizes that the ALJ need not accept conclusory statements regarding Plaintiff's ability to work from the medical experts, but all of the medical evidence presented at the hearing supported Plaintiff's contention that she suffered from migraines and that the migraines limited her ability to work.
V. Reliance on the Vocational Expert's Opinion
Plaintiff contends that the ALJ improperly relied on the vocational expert's testimony regarding Plaintiff's ability to work. In determining a plaintiff's Residual Functional Capacity ("RFC"), and in framing an appropriate hypothetical for a vocational expert, the ALJ must set forth all of the claimant's limitations that he or she finds to be true and supported by the evidence. See Rappoport v. Sullivan, 942 F.2d 1320, 1323 (8th Cir. 1991). The hypothetical is meant to replicate plaintiff's RFC so as to allow the vocational expert to identify jobs in the economy, if any exist, which an individual with limitations like those of the plaintiff, would be able to perform. See Nelson v. Sullivan, 946 F.2d 1314, 1317 (8th Cir. 1991). The testimony of a vocational expert that is based on a proper hypothetical question constitutes substantial evidence. See Warburton v. Apfel, 188 F.3d 1047, 1049 (8th Cir. 1999).
Plaintiff asserts that the ALJ's hypothetical was flawed because it failed to include the Plaintiff's need to lie down, decreased concentration, and absences from work related to illness. Plaintiff asserts that she met her burden of proving that she was unable to perform her past relevant work, but that the Commissioner failed to satisfy his burden of establishing that Plaintiff could perform other work.
The ALJ's first hypothetical was a lengthy recitation of the Plaintiff's various ailments. In response to the hypothetical, the vocational expert testified that the Plaintiff could no longer perform the duties of a medical assistant, but that she could work as an office manager or a data entry clerk. The ALJ's second hypothetical required the vocational expert to reduce his consideration of Plaintiff's skill level to that of lower semi-skilled or unskilled. In response to the hypothetical, the vocational expert testified that Plaintiff could not work as an office manager but could work as a data entry clerk. The ALJ's third hypothetical required that the vocational expert consider the fact that the Plaintiff could only stand or sit for limited periods of time. The vocational expert testified that such a restriction would not "interfere greatly in the productivity of a data entry clerk." (Tr. at 69.)
The ALJ's fourth, and final, hypothetical required the vocational expert to consider how many absences a data entry clerk could have in a month without jeopardizing his or her employment. The vocational expert testified that "anything excessive of two or three days a month on a regular basis would jeopardize most employment situations." (Tr. at 69.) Plaintiff's counsel questioned the vocational expert further on the subject and the vocational expert stated that a day and a half of absenteeism per week would be tolerated but that anything beyond that would fall into a "gray area." (Tr. at 70.) The vocational expert also testified that anything beyond a roughly 15 minute break in the morning and afternoon and a 30 minute lunch would not be tolerated by an employer. (Tr. at 71.)
The Court finds that the hypotheticals put to the vocational expert by the ALJ were appropriate and included all of the Plaintiff's limitations. The ALJ addressed the Plaintiff's inability to do any type of work other than sedentary, semi-skilled work with the need for Plaintiff to be able to take longer than usual breaks and to be absent from the workplace 2-3 days a week. The Court finds that all of the limitations discussed by Dr. Sharpe and Dr. LaBree were included in the ALJ's hypotheticals. However, the Court finds the vocational expert's responses to the hypotheticals to be dubious at best. The Court believes that few, if any, employers would be willing to hire a 59-year-old woman without any data entry experience who requires longer than average breaks during the day and would miss anywhere between 2 to 3 days of work a week because of illness. Nonetheless, the Court need not address the issue because the Court finds that the vocational expert's testimony was insufficient to meet the Commissioner's burden of establishing that the Plaintiff could perform other work existing in significant numbers in the economy.
As previously stated, a vocational expert's testimony that is based on a proper hypothetical question constitutes substantial evidence. See Warburton, 188 F.3d at 1049. In this case, the vocational expert testified twice in response to proper hypotheticals that an employer may not have been willing to make adjustments such that Plaintiff could have worked as a data entry clerk. First, the vocational expert testified that two absences a week "is probably not going to rule out employment" and that three absences a week is in "a gray area where some employer's won't tolerate that. . . ." (Tr. at 70) (emphasis added). Second, the vocational expert testified that " most employers would not tolerate" work breaks in excess of the 30 minute lunch break and 15 minute morning and afternoon breaks. (Tr. at 71) (emphasis added).
The Court finds that the vocational expert's responses were insufficient to establish that Plaintiff could perform other work existing in significant numbers in the economy. The responses indicate that only a fairly small number of employers might have been willing to hire the Plaintiff. Thus, the Court finds that the ALJ's finding that the Plaintiff was able to perform work was not supported by substantial evidence in the record.
In light of this finding and the Court's findings that the ALJ should not have discounted Plaintiff's subjective complaints of pain, and that the Plaintiff's treating physician's opinion should have been afforded more weight, the Court finds that Plaintiff is entitled to a grant of her motion for summary judgment. All of the evidence presented at the hearing before the ALJ supports Plaintiff's assertion that she is entitled to a grant of benefits. Therefore, the case is remanded for an award of benefits to Plaintiff.
Conclusion
Accordingly, IT IS HEREBY ORDERED that:
1. The Court declines to accept the Magistrate Judge's Report and Recommendation (Doc. No. 10).
2. Plaintiff's objections (Doc. No. 11) are GRANTED.
3. Plaintiff's motion for summary judgment (Doc. No. 6) is GRANTED.
4. Defendant's motion for summary judgment (Doc. No. 7) is DENIED.
5. The Commissioner's decision is REVERSED. The case is REMANDED for an award of benefits to Plaintiff.
LET JUDGMENT BE ENTERED ACCORDINGLY.