Opinion
Civil No. 01-570 ADM/FLN
March 8, 2002
William Plummer, 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 [##6 15]. In this action, Plaintiff Laurel A. Nelson ("Plaintiff" or "Ms. Nelson") seeks judicial review of the final decision of the Defendant, Commissioner of Social Security ("Commissioner"), denying her application for Supplemental Security Income ("SSI"). See 42 U.S.C. § 1382a, 1382c. Jurisdiction over this claim resides in this Court pursuant to 42 U.S.C. § 405 (g) and 1383(c)(3). This matter was referred to the undersigned for Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1.
I. PROCEDURAL HISTORY
Ms. Nelson filed her claim for SSI on November 18, 1997, alleging that she became disabled on April 12, 1996, but the earliest medical evidence of record is November 1, 1996, due to weakness, fatigue, and anxiety after having consumed several alcoholic beverages a day. (Tr., 29, 99, 188-189.) Her application was denied by the state agency initially and upon reconsideration and after a hearing before an Administrative Law Judge ("ALJ"). (Tr. 18-31, 48-80.) The appeals council denied her request for review making the ALJ' s decision the final decision of the Commission. (Tr. 10-11.) Ms. Nelson submits additional evidence which is made part of this record but was not presented to the ALJ for consideration during the hearing. (P1. Br. Ex. 1.)
II. STATEMENT OF FACTS
A. Background
Ms. Nelson was born on March 10, 1953, and was forty-five years old on the date of the ALJ's decision. (Tr. 50.) Plaintiff completed high school. (Tr. 64.) At the time of the hearing, Plaintiff was single with no children and taking eight different medications for cirrhosis of the liver, alcohol dependent in remission since 1997. (Tr. 18A.)
The Plaintiff stopped working April 12, 1996 at which time she claimed to be disable due to fatigue. (Tr. 188.) Plaintiff worked as a tax processor for the Revenue Department prior to her illness. She did not see a doctor for seven months at which time she had become progressively worse. (Tr. 68.) Plaintiff lived alone and took care of her own personal needs, made simple meals, managed her finances and received limited help with chores such as cleaning and grocery shopping. (Tr. 59, 70.)
B. Medical Evidence
Ms. Nelson's alleged disability stems from alcohol induced weakness, fatigue and anxiety from prolonged abuse on a daily basis. On November 1, 1996 she reported to St. Paul Ramsey Medical Center where liver function tests revealed evidence of jaundice ankle edema (swelling) and ascites (accumulation of fluid in the abdominal cavity). (Tr. 184-185.) Six months later Plaintiff was reevaluated by Dr. Martinelli who advised Plaintiff that she would die from liver failure if she continued to drink. (Tr. 185.) August 1997 Plaintiff was hospitalized for the treatment of liver failure, anemia and alcohol dependence. (Tr. 154-155.) Fluid was drained from Plaintiff's abdomen; she received blood transfusions; and was placed on a number of medications and nutritional supplements. (Tr. 154-155.) Plaintiff was then admitted to a fourteen day inpatient chemical dependency program. (Tr. 162-163.) Doctors prescribed propranolol and recommended a colonoscopy on outpatient basis. (Tr. 154.) Followup evaluations with Dr. Martinelli revealed Plaintiff was feeling better. (Tr. 177-179.) However, she complained of tiredness and stated she had been unable to sleep consistently throughout the night, but was stay up late watching television and was able to sleep during the day. (Tr. 177-179.) The record further documents Plaintiff's weight had dropped to ninety-eight pounds though she weighed one hundred and forty-five pounds less than a month earlier. (Tr. 180.)
Subsequently Plaintiff was instructed to exercise and maintain a low protein diet. (Tr. 173.) During the September 1997 appointment with Dr. Martinelli, Plaintiff reported moving into an apartment and attending alcoholics anonymous meetings sporadically. (Tr. 178.) Plaintiff inquiry when it would be appropriate for her to return to work. (Tr. 178.) Plaintiff was continued on all medications and lasix was included to medical regiment. (Tr. 179.)
In February 1998, Plaintiff saw Dr. Falcon who noted her anemia was improving and continued her medication as originally proscribed. (Tr. 171-172.) Dr. Falcon reported that Plaintiff's complaints of fatigue might be related to her medication and just a progression of her cirrhosis. (Tr. 171-172.) Dr. Alford S. Karayusuf performed a psychiatric examination on Plaintiff March 1998 at the request of the Social Security Administration. (Tr. 166.) Plaintiff complained of mental confusion which she thought might be caused by one of her medications and her test results reflected some impairment of concentration such as an inability to subtract serial sevens. (Tr. 166-167.) Dr. Karayusuf stated however that Plaintiff's digit recall and recent remote memory were in tact. (Tr. 167.) This evaluation resulted in a diagnosis of alcohol dependence in remission and the conclusion was that Plaintiff could understand, retain and follow simple instructions; interact appropriately with co-workers, supervisors, and the public; and maintain pace and persistence on simple routine, repetitive, concrete, and tangible tasks. (Tr. 168.)
Plaintiff next saw Dr. Martinelli June 5, 1998 and complained of bouts of confusion and she did not feel as though she was ready to return to work. (Tr. 169.) On September 21, 1998, Dr. Martinelli reported Plaintiff was feeling better and that liver function test results, while still elevated, were slowly decreasing. (Tr. 219-220.) Dr. Martinelli referred Plaintiff to Dr. Johnston for neuropsychological testing due to memory changes. (Tr. 219.) Dr. Chris Johnston licensed Psychologist performed a two-day evaluation of Plaintiff in September and October of 1998. (Tr. 228-230.) Plaintiff revealed concentration difficulties and memory problems that caused her to drift of in the middle of conversations. (Tr. 228.) Dr. Johnston's test results reflected a number of deficiencies including profoundly impaired memory functioning. (Tr. 229.) Dr. Johnston reported an inconsistency in the test results from a neurologic standpoint noting for example, that Plaintiff's performance on memory testing was completely nil but when questioned about information she provided at her first appointment and other details concerning her recent medical history, she demonstrated excellent recall. (Tr. 229.) Dr. Johnston concluded that the evaluation strongly suggested Plaintiff was feigning inability either consciously or unconsciously. (Tr. 229.)
In April and July 1998, Drs. Hadden and Hammerstrom rendered opinions concerning the impact of Plaintiff's impairment on her residual functional capacity (RFC). (Tr. 198.) There conclusion was that Plaintiff should be reduced in her RFC because of complaints such as fatigue and weakness. (Tr. 198.) With abstinence from alcohol and medication, she should be capable of performing at least light work. (Tr. 198.) The doctors indicated that Plaintiff would have been able to function at that level since her alleged onset date (AOD). (Tr. 198.)
20 C.F.R. § 404.1567 (b) defines light work as limiting lifting to twenty pounds and requiring standing and walking most of the workday.
Two psychologists Drs. Conroe and Frederiksen concluded that Plaintiff did not have any severe mental impairment that would significantly limit her ability to perform basic work activities. (Tr. 204.)
At the administrative hearing, medical expert Dr. Andrew Steiner testified that after a review of the record he was of the opinion that the Plaintiff would be able to function at a sedentary level because no evidence was presented to indicate an inability to perform work for the minimum twelve month period. (Tr. 72.) Dr. Steiner also stated that Plaintiff's condition would lead one to expect significant fatigue but no evidence was provided to document a need for day time naps. (Tr. 78-79.)
Steven Bosch, a vocational expert, also testified that and individual of Plaintiff's age could perform work involving one and two-stepped tasks such as clerical sorter, hand packager and electronic assembler. (Tr. 77-78.) Mr. Bosch also stated that should memory problem of the degree that Plaintiff allege require a nap once or twice a day, she would not be able to perform sedentary work. (Tr. 78.)
Plaintiff has submitted additional information to this court that was not part of the record before the ALJ or the Appeals Council. (P1. Br. Ex. A.) A letter dated April 17, 2001 from Dr. Martinelli stated that Plaintiff's liver function test returned to normal and that one of the medications, propranolol, was discontinued. (P1. Br. Ex. A.) Following the discontinuation of this medication, Plaintiff experienced great improvement in memory and concentration and was able to obtain a job. (P1. Br. Ex. A.) Dr. Martinelli opined that the inclusive results in the tests administered by Dr. Johnston may have been a reaction to the propranolol. (P1. Br. Ex. A.)
C. Plaintiff's Testimony
At the hearing before ALJ Leonard Nelson ("ALJ") on August 18, 1998, Ms. Nelson, answering questions posed by the ALJ, testified about her living arrangements, social and family history. (Tr. 49-66.) She reported not having a driver's license and depending on mass transit or public transportation. (Tr. 51.) Plaintiff reported experiencing tiring very easily and having to do everything in intervals, ankles swelling and lack of sleep. (Tr. 51-52.) At the time of the administrative hearing Plaintiff testified she had not consumed an alcoholic beverage in over year. (Id.) She reported that the results of her psychological testing concluded that she profound memory lost as if she had some sort of head injury. (Tr. 55.) Plaintiff gave examples of her forgetfulness to include forgetting to throw trash in the trash can and instead throwing it in the toilet. (Id.) She also reports going to the grocery store and forgetting to get items she went to the store for. (Id.) Plaintiff also reported inadvertently throwing away notes she has written to herself. (Id.) She performed household chores with the help of her aunt, but does her own cooking and grocery shopping. (Tr. 59-60.) She keeps up with her own personal hygiene, bathing, hair grooming, and finger nails, and manages her finances. (Tr. 69-70.) Plaintiff testified that her previous employment was processing tax returns for the revenue department and she quit because she could not longer walk to the bus stop due to fatigue and trouble breathing. (Tr. 60.) She reports working out on a cardio-glider so that she can regain her strength in walking. (Tr. 62.) She does not have any pain when sitting for up to an hour, however, she has an uncomfortable feeling sometimes on the left side. (Tr. 62-63.) Plaintiff reports that her ability to get along with people reasonably well is attributed to her ability hold down a job as along as she has. (Id.) Plaintiff reports sleeping an average of fifteen to twenty hours a day because she is tired. (Tr. 64.) Although it is not straight through, the sleep is broken up and she never feels rested. (Id.) Plaintiff has a pet that she takes care of. (Id.)
D. Medical Expert's Testimony
Dr. Andrew Steiner testified as a neutral medical expert at the hearing. (Tr. 66-73.) Dr. Steiner indicated that the record documented a past history of alcohol abuse that has been in remission since August of 1997. (Tr. 71.) The diagnosis of termed end stage liver disease, and was associate(1 with abnormal liver function tests, esophageal varices, anemia, and ascites treated on the inpatient basis for a period of time.(Id.) Though there is evidence that memory problems were reported Plaintiff was not diagnosed with dementia. (Id.) None of the impairments singularly or in combination met or equaled the criteria for presumptive disability outlined in the Commissioners listing of impairments. (Tr. 71.) Dr. Steiner indicated that Ms. Nelson retained the ability to lift a sedentary range of weight, spend time on her feet. (Id.) Although there was likely a pathology occurring prior to Plaintiff's hospitalization the lack of documentation going back to the onset date fail to indicate a twelve month continuous period of disability. (Id.)
E. Vocational Expert's Testimony
The Vocational Expert ("VE"), Steve Bosh, testified at the hearing. (Tr. 73-79.) The ALJ posed a hypothetical question which assumed an individual of Ms. Nelson's age, experience and background, who is impaired by the effects of chronic alcohol abuse which include liver disease, varicose veins, some anemia, and memory problems. The ALJ then asked whether this person could return to her past relevant work if limited to sedentary exertion. The VE explained that depending on the extent of memory problems and if limited to sedentary exertion, the hypothetical worker could return to her past relevant work as a clerk I, accountant, or bookkeeper. (Id.) However the VE also noted that even if the hypothetical person suffered from significant memory loss, she would still be able to perform one or two step tasks.
The Plaintiff's attorney then posed a second hypothetical, mirroring the first in all restrictions and respects except that the hypothetical worker required a nap one or two times a day for an hour or so. Under examination by Ms. Nelson's attorney, the VE testified that two naps per day would preclude any type of competitive employment; however, he also noted that the record was devoid of any evidence indicating the necessity of naps for the degree of fatigue experienced by the Plaintiff. (Tr. 78-79.)
F. The ALJ's Decision
In determining whether or not Plaintiff was disabled, the ALJ followed the five-step sequential process outlined at 20 C.F.R. § 404.1520 (c). (Tr. 18A.) At the first step in the process, the ALJ evaluated whether the Plaintiff engaged in substantial gainful activity since the date of alleged onset of disability and concluded that she had not engaged in substantial gainful activity at any time relevant to this decision. (Tr. 18A.)
At the second step in the sequential evaluation, the ALJ determined whether or not Ms. Nelson had a "severe" impairment, which is defined as an impairment which imposes more than a minimal effect on her physical or mental ability to perform basic work-related activities. (Tr. 21 8A, 20 C.F.R. § 404.1521). After weighing the record evidence and completing the PTRF pursuant to 20 C.F.R. § 404.1520a to determine whether Ms. Nelson was subject to any medically determinable mental impairment identified in the Listing of Impairments, the ALJ found that she had anemia, fatigue, liver cirrhosis, alcohol dependence in remission since 1997, and an affective disorder.
After finding that Ms. Nelson's physical and mental impairments were "severe" within the meaning of the regulations the ALJ determined that the record failed to establish findings required to meet or equal the requirements set forth in the Listing of Impairments, Appendix 1 to Subpart P, Regulations No. 4. (Tr. 18A.) In making this determination, the ALJ specifically considered all of her 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 Ms. Nelson retained the Residual Functional Capacity ("RFC") for a full range of work at the sedentary exertional level. (Id.) In determining her RFC, the ALJ granted significant weight to the medical record. (Tr. 20-29.) The ALJ also considered the credibility of Ms. Nelson's subjective complaints in accordance with 20 C.F.R. § 404.1529 and Social Security Ruling 96-7p and concluded that Plaintiff was not fully credible because her allegations of being unable to work were unsupported by and inconsistent with her treating physicians' records, the objective medical record and her level of activities. (Id.) of import in the ALJ's credibility determination was the fact that none of Ms. Nelson's physicians imposed any significant exertional limitations or restricted her from full-time work. (Id.) In making his REC decision, the ALJ also considered the administrative findings of fact made by state agency medical physicians and other consultants. (Id.) Having considered all of the factors up to that point in his analysis, the ALJ determined that Ms. Gieseke retained the functional capacity to perform the exertional demands of sedentary work existing in significant numbers in the national market.
Finding the VE's testimony credible and persuasive, the ALJ determined that Ms. Nelson was unable to perform her past relevant work; however, she retained the RFC to perform a significant number of jobs existing in the Minnesota economy. (Tr. 30-31.) Therefore, the ALJ concluded that Ms. Nelson did not meet the relevant statutory criteria for a finding of disability at any time relevant to the adjudication, and there was no need to evaluate whether the alcoholism was a material contributing factor in the determination of disability at any relevant time associated with this adjudication.
G. Additional Evidence Submitted to the Court
Following the ALJ's decision, Ms. Nelson submitted a April 2000, letter from Dr. Martinelli, to controvert the ALJ's credibility finding. This evidence was not submitted to the ALJ or the Appeals Council.
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 Commissioners findings. 14, 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. ISSUES ON APPEAL
In moving for summary judgment, Ms. Nelson challenges the ALJ's decision on the grounds that:
1. The ALJ failed to develop the administrative record as required;
2. The ALJ's credibility determination was not based on substantial evidence;
3. The ALJ improperly failed to find that Ms. Nelson suffered from a listed impairment at Step 3 of the sequential evaluation;
4. The hypothetical question on which the VE based his testimony was improper;
5. The ALJ erred in determining the proper onset date for Ms. Nelson's disability;
6. There is substantial evidence in the record supporting a finding of disability.
V. CONCLUSION OF LAW
1. The ALJ Developed the Record as RequiredMs. Nelson challenges the ALJ's decision on the ground that the ALJ erred in considering the side effects, dosage and effectiveness of her medications as required. Plaintiff contends analysis to the non-exertional impairments is inadequate because the degree of side effects she experienced has nothing to do with whether the medication regimen remained constant.
Plaintiff's argument is not persuasive. Reviewing the ALJ's determination under the substantial evidence standard, the record clearly reflects Plaintiff received adequate examinations and evaluations from numerous medical doctors, Psychiatrist, Psychologist, vocational expert, and medical expert. The information provided in the transcript as a whole is not deficient in a way that leaves to question the meaning of any critical material relating to the affects medications may or may not have had on Plaintiff. The ALJ is reasonable to consider inconsistent reports in following medical advice with medications as a contributing factor in this case. The ALJ completely followed the five-step sequential evaluation process as required.
In light of the foregoing, this Court concludes the record is fully developed as required.
2. Substantial Evidence Supported the ALJ's Credibility Determination
Ms. Nelson appears to argue that the ALJ erred in the discrediting her subjective allegations of non-exertional impairments based on Dr. Johnston's reports. She contends that the ALJ erred in relying on this report because Dr. Johnston's report failed to consider the side effects of her drugs, was unaware of her complaints of memory loss and concentration difficulties from the onset of her acute medical crises. We disagree.
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). In the Eighth Circuit, subjective complaints of pain are evaluated in accordance with the requirements of Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). 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:
a. the Plaintiff's daily activities;
b. the duration, frequency and intensity of pain;
c. precipitating and aggravating factors;
d. dosage, effectiveness and side effects of medication;
e. functional restrictions.
Id. 20 C.F.R. § 404.1529 and Social Security Ruling 96-7p require that the ALJ consider
(i) the Plaintiff's daily activities;
(ii) the location, duration, frequency, and intensity of any pain and other symptoms;
(iii) precipitating and aggravating factors;
(iv) type, dosage, effectiveness and adverse side effects of any pain medications;
(v) treatment, other than medication, used for relief of pain or other symptoms;
(vi) other measures used to relieve pain or other symptoms; and
(vii) any other factors concerning the Plaintiff's functional limitations and restrictions due to pain or other symptoms.
While the two listings are functionally identical, the greater detail called for in the second listing is, if anything, more thorough than is required by Polaski. The focus of the inquiry thus shifts to whether the ALJ properly applied the criteria to the evidence of record. In making this determination, this 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.
Our review of the record evidence indicates that the ALJ's Polaski analysis does meet the requirements established in that decision. The transcript reveals that the ALJ elicited testimony from Ms. Nelson on the five Polaski subjects, applied it to his analysis and concluded that he could not find her testimony that she was incapable of performing any work activity at any exertional level sufficient to engage in substantial gainful activity credible. Contrary to Ms. Nelson's contention, the ALJ's credibility determination was not based solely upon Dr. Johnston's report. Specifically, the ALJ noted that Ms. Nelson's ability to perform a wide range of activities, continued drink use, significant inconsistencies in the record as a whole, treating and examining physicians reports, the overall hearing record and objective medical evidence precluded him from finding that she was incapable of all work activity. Furthermore, the medical findings directly contradicted her allegations of inability 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). of import was the ALJ's observation that none of Ms. Nelson's treating physicians opined that she was incapable of any work or restrict her daily activities.
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 Ms. Nelson's testimony about her 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). Accordingly, this Court finds that substantial evidence on the record as a whole supports the ALJ's decision as to Plaintiff's credibility regarding her inability to work and believes that the ALJ's decision need not be reversed for this reason.
3. The ALJ Properly Concluded that Ms. Nelson Did not Suffer from a Listed Impairment at Step 3 of the Sequential Evaluation
The ALJ determined that Ms. Nelson's mental condition did not satisfy the prerequisites contained in Listing 12.04, Affective Mood Disorders. In contesting that determination, she contends that had the ALJ found her testimony credible, he would have found her impairments sufficient to meet the criteria in Listing 12.04.
The Secretary's Regulations set forth a special procedure for the evaluation of evidence concerning a claimant's medically determinable mental disorder. See 20 C.F.R. § 404.1 520a; 20 C.F.R. Part 404, Subpart P, Appendix 1, §§ 12.00(A), 12.04(A); 20 C.F.R. § 920a. If a medically determinable mental disorder is found, based upon the pertinent signs, symptoms, findings, functional limitations, and effects of treatment — as they are reflected in the Administrative Record — then the ALJ must measure the severity of that disorder by determining its functional effects. See 20 C.F.R. § 404.1508; 20 C.F.R. § 404.1520a (b)(1); 20 C.F.R. § 416.920a. The severity of the impairment is assessed in terms of a prescribed list of functional restrictions, which are associated with mental disorders, and which are referred to as the "paragraph B criteria." See 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00(C).
Section 404.1508 states, in pertinent part:
Your impairment must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms * * *.
Section 12.00(C) provides, in pertinent part, as follows:
For mental disorders, severity is assessed in terms of the functional limitations imposed by the impairment. Functional limitations are assessed using the criteria in paragraph B of the listings for mental disorders (descriptions of restrictions of activities of daily living; social functioning; concentration, persistence, or pace; and ability to tolerate increased mental demands associated with competitive work).
Thus, the Secretary has "supplemented the familiar five-step sequential process for generally evaluating a claimant's eligibility for benefits with additional regulations dealing specifically with mental impairments." Pratt v. Sullivan, 956 F.2d 830, 835 (8th Cir. 1992). Therefore, in considering a Plaintiff's mental impairments, the ALJ is obligated to follow a separate sequential process which has been prescribed in 20 C.F.R. § § 404.1 520a, and 41 6.920a, and which has been paraphrased as follows:
The first step is to record pertinent signs, symptoms, and findings to determine if a mental impairment exists. 20 C.F.R. § 404.1520a (b)(l). . . . If a mental impairment is found . . . the ALJ then must analyze whether certain medical findings relevant to ability to work are present or absent. Id. § 404.1 520a(b)(2).
The procedure then requires the ALJ to rate the degree of functional loss resulting from the impairment in four areas of function which are deemed essential to work. Those areas are: activities of daily living; social functioning; concentration, persistence or pace; and deterioration or decompensation in work or worklike settings. Id. The degree of functional loss is rated on a scale that ranges from no limitation to a level of severity which is incompatible with the ability to perform those workrelated functions. Id. After rating the degree of functional loss, the ALJ is to determine the severity of the mental impairments with reference to the ratings. Id.; § 404.1 520a(c). If the mental impairment is severe, then the ALJ must determine whether it meets or equals a listed mental disorder. This is done by comparing the presence of medical conclusions and the rating of functional loss against the paragraph A and B criteria of the appropriate listed mental disorders. Id. If the claimant has a severe impairment, but the impairment neither meets [nor] equals the listing, then the ALJ is to do a residual functional capacity assessment. Id.; § 404.1 520a(c)(3).Pratt v. Sullivan, supra at 834-35 (footnotes omitted); Anderson v. Callahan, 981 F. Supp. 1258, 1267 (E.D). Mo. 1997).
In addition, the Regulations require that the steps of this process are to be documented, at each level of administrative review, by the completion of a Psychiatric Technique Review Form ("PTRF"), which should be attached to the ALJ's decision. See 20 C.F.R. § 404.1520a(d), and 416.920a; Pratt v. Sullivan, supra at 834. The failure to follow these procedures, including the completion of a PTRF, may require a remand. See Montgomery v. Shalala, 30 F.3d 98, 100 (8th Cir. 1994); Pratt v. Sullivan, supra at 834; Hill v. Sullivan, 924 F.2d 972, 975 (10th Cir. 1991).
In evaluating the functional loss associated with the mental impairment, rating a paragraph B criterion above "marked," "frequent," or "repeated," reflects a degree of limitation which is incompatible with the ability to perform work-related functions. See 20 C.F.R. § 404.1520a(b)(3). In other words, these degrees of limitation satisfy the Listings. Conversely, ratings of "none or slight" in the first and second areas, "never or seldom" in the third area, and "never" in the fourth area, signify an impairment that is not severe unless evidence indicates otherwise. See 20 C.F.R. § 404.1520a(c)(1); Pratt v. Sullivan, supra at 835 n. 11.
As noted, the Plaintiff contends that the ALJ erred in concluding that her mental impairment did not satisfy Listing 12.04. of course, the determination of whether a person's impairments, either alone or in combination, meet or equal a Listed Impairment has medical overtones but, essentially, it is a finding of fact that is derived from a comparison of the person's impairments with the criteria of a Listed Impairment. See 20 C.F.R. § 404.1520a, 1523, 416.920a, and 4 16.923;Pratt v. Sullivan, supra at 834; Brown v. Sullivan, 902 F.2d 1292, 1296 (8th Cir. 1990). Should the ALJ conclude that a claimant's impairments do not meet or equal one of the Listed Impairments, then the Record must demonstrate that the ALJ actually considered the impairments in combination. See Arnick v. Sullivan, 921 F.2d 174, 176 (8th Cir. 1990);see also Gooch v. Secretary of Health and Human Services, 833 F.2d 589, 591-92 (6th Cir. 1987), cert. denied, 484 U.S. 1075 (1988).
An Affective Disorder is characterized by "a disturbance of mood, accompanied by a full or partial manic or depressive syndrome." Listing 12.04. The Plaintiff argues that there is substantial evidence in the Record to support her claim that she experiences an Affective Disorder which is severe within the meaning of the Listing 12.04.
To meet the required level of severity, which would be necessary in order to satisfy Listing 12.04 — and result in a presumptive determination of disability — a claimant must meet both the "A" and "B" criteria of the Listing. Those criteria provide as follows:
A. Medically documented persistence, either continuous or intermittent of one of the following:
1. Depressive syndrome characterized by at least four of the following:
a. Anhedonia or pervasive loss of interest in almost all activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
1. Hallucinations, delusions, or paranoid thinking; or . . .
AND
B. Resulting in two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Deficiencies of concentration, persistence or pace resulting in frequent failure to complete tasks in a timely manner (in work settings or elsewhere); or
4. Repeated episodes of deterioration or decompensation in work or work-like settings which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms (which may include deterioration of adaptive behaviors).
Listing 12.04(A)-(B).
As noted earlier, Ms. Nelson does not contend that substantial evidence did not support the ALJ's determination that her impairments failed to meet the criteria in Listing 12.04, rather, she argues that the ALJ's credibility determination affected his conclusion that her impairments did not satisfy the listing. Since we have already concluded that the ALJ did not err in his credibility determination and that it was supported by substantial evidence, Ms. Nelson's challenge appears to be moot. Furthermore, the record is replete with evidence supporting the ALJ's determination that Ms. Nelson did not suffer from a severe impairment under Listing 12.04.
4. The Hypothetical Question Posed to the VE Was Proper
Ms. Nelson 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 any reference to her fatigue. See Smith v. Shalala, 31 F.3d 715 (8th Cir. 1994) (holding that unless the hypothetical question comprehensively describes the limitations on a claimant's ability to function, a VE will be unable to accurately assess whether jobs exist for the claimant). After carefully reviewing the record and Ms. Nelson's arguments, this Court finds no merit to her contention that the ALJ posed an improper hypothetical question to the VE because it failed to include the aforementioned limitation.
The record evidence reveals that the ALJ's hypothetical, while not specifically indicating that the hypothetical worker suffered from fatigue, did account for the effects of this fatigue by providing that the hypothetical worker should be limited to non-strenuous sedentary work that required only one or two step tasks. The ALJ's decision to account for the fatigue in this manner was supported by the fact that: (1) the medical record was devoid of any evidence that Ms. Nelson's fatigue significantly impaired her ability to perform substantial gainful employment; (2) Ms. Nelson's work history and medical reports indicated that she lacked the motivation for employment; (3) Ms. Nelson was able to engage in other daily activities such as household chores, socializing and employing public transportation and did not suffer from debilitating fatigue; and (4) the ME examined the entire medical record and concluded that her fatigue did not affect her ability to maintain gainful employment.
In light of the foregoing, this Court believes that the limitations which the ALJ included in his hypothetical questions were proper and supported by the evidence. See Davis v. Apfel, 239 F.3d 962, 9678-68 (8th Cir. 2001) (ALJ properly based decision on state agency medical consultant's opinions, where it was well supported by the record evidence); See Pertius v. Apfel, 152 F.3d 1006 (8th Cir. 1998); See Rappoport v. Sullivan, 942 F.2d 1320, 1323 (8th Cir. 1991) (while hypothetical question must accurately set forth all of the claimant's impairments, the question need only include those limitations accepted by the ALJ as true).
5. ALJ Properly Determined an Onset Date
Plaintiff contends that ALJ's failure to ask the medical expert to infer an onset date from the medical and other evidence in the record that describe the history and symptomatology of the disease. The ME concluded that while it is likely Plaintiff possessed symptoms of her illness prior to seeking her medical attention, without documentation no twelve month period of disability was found.
Regardless whether the ALJ asked the ME specifically to infer an onset date or not the decision of the ALJ is supported by substantial evidence in the record. See Grebenick v. Chater, 121 F.3d 1193, 1197-98 (8th Cir. 1997) (standard of review; appellate court may not reverse merely because substantial evidence would have supported different decision). In a case involving a possible degenerative disease where a claimant does not have contemporaneous objective medical evidence of the onset of the disease, the ALJ must consider all of the evidence on the record as a whole, including the lay evidence and the retrospective conclusions and diagnosis of her doctor. See Jones v. Chater, 65 F.3d 102, 103-04 (8th Cir. 1995) (retrospective medical diagnoses, uncorroborated by contemporaneous medical reports but corroborated by lay evidence relating back to claimed period of disability, can support finding of past impairment; noting three mental health professionals implied claimant was suffering from disorder at time his insured status expired). In addition, we find no reversible error based on the ALJ's failure to ask a medical expert to testify concerning the onset date. See Grebenick v. Chater, 121 F.3d at 1199-1201 (discussing SSR 83-20 and holding ALJ's need to call medical advisor turns on whether evidence is ambiguous regarding possibility that onset of disability occurred before expiration of claimant's insured status; reasoned credibility findings will not be disturbed). Consequently, this Court concludes substantial evidence supports the decision of the administrative law judge (ALJ) concerning the onset of Ms. Nelson's disability.
6. Substantial Evidence Supports the ALJ'S Determination that Ms. Nelson Was Not Disabled
The Plaintiff contends that if this Court finds the ALJ's decision was not justified we must choose to reverse or remand for an order granting benefits or reviewing new evidence. This Court has found the ALJ's decision was supported by substantial evidence and therefore, there is no need to reverse or remand for further determination.
The Eighth Circuit has established a two-step sequence for evaluating evidence first submitted to the Appeals Council in connection with a request for review under 20 C.F.R. § 404.970 (b), 416.1470 (b). In reviewing the Commissioner's decision, the Court should first evaluate whether the ALJ's decision is supported by substantial evidence in the record before the ALJ. See Browning v. Sullivan, 958 F.2d 817, 822-23 (8th Cir. 1992). If the Court concludes that the ALJ's decision is supported by substantial evidence in the record, it then considers whether the evidence submitted to the Appeals Council changes that conclusion. See Browning, 958 F.2d at 822-23. Given our conclusion that the ALJ's decision was supported by substantial evidence on the record as a whole, the focus of this inquiry is on the latter issue.
After carefully reviewing the additional evidence, we believe that it is highly unlikely that any of the new evidence submitted to the Appeals counsel would have changed or negates the ALJ's opinion. See Cruze v. Chater, 85 F.3d 1320, 1325 (8th Cir. 1996).
VI. RECOMMENDATION
Based on the files, records and proceedings herein, IT IS HEREBY RECOMMENDED that:1. Plaintiff's Motion for Summary Judgment [#6] be DENIED.
2. Defendant's Motion for Summary Judgment [#15] be GRANTED.