Opinion
Civ. No. 02-2900 (JRT/RLE).
February 19, 2004
REPORT AND RECOMMENDATION
At Duluth, in the District of Minnesota, this 19th day of February, 2004.
I. Introduction
The Plaintiff commenced this action, pursuant to Section 205(g) of the Social Security Act, Title 42 U.S.C. § 405(g), seeking a judicial review of the Commissioner's final decision, which denied her application for Supplemental Security Income ("SSI"). The matter is now before the Court upon the parties' cross-Motions for Summary Judgment.
For these purposes, the Plaintiff has appeared by Edward C. Olson, Esq., and the Defendant has appeared by Lonnie F. Bryan, As-sistant United States Attorney. For reasons which follow, we re-commend that the Plaintiff's Motion for Summary Judgment be denied, and that the Defendant's Motion be granted.
II. Procedural History
The Plaintiff protectively filed her first application for SSI on October 25, 2000, which alleged that she had become disabled on December 12, 1998, due to lung and breathing problems. [T. 85-88]. Her claim was denied upon initial review, and upon reconsideration. [T. 64-66, 71-73].
On March 26, 2001, the Plaintiff requested a Hearing before an Administrative Law Judge ("ALJ") and, on October 23, 2001, a Hear-ing was conducted, at which the Plaintiff appeared personally, and by legal counsel. [T. 30-53, 74, 77]. Thereafter, on December 27, 2001, the ALJ issued a decision which denied her claim for bene-fits. [T. 12-21]. The Plaintiff requested administrative review before the Appeals Council which, on June 7, 2002, declined to re-view the matter further. [T. 7-8, 10-11]. Thus, the ALJ's deter-mination became the final decision of the Commissioner. Steahr v. Apfel, 151 F.3d 1124, 1125 (8th Cir. 1998); Johnson v. Chater, 108 F.3d 942, 943-44 (8th Cir. 1997); 20 C.F.R. § 1481. The Plaintiff commenced this action for judicial review on August 12, 2002.
III. Administrative Record
A. Factual Background. At her Hearing, the Plaintiff was forty-nine years old, and had a tenth-grade education. [T. 31, 33, 85, 143]. She had prior work experience as a plastics laborer, and in working in turkey processing. [T. 37, 123]. As related by the Plaintiff, she stopped working on March 24, 1988, due to increased pain, despite taking Darvocet, as prescribed. [T. 67]. At the time of the Hearing, the Plaintiff testified that she had not worked since December 12, 1998, and she reported that she had stop-ped working due to breathing problems, which she felt had resulted from the plastics with which she worked. [T. 33]. In her appli-cation for SSI, the Plaintiff alleged that she could not work due to lung and breathing problems. [T. 85-88].
Darvocet "is a centrally acting narcotic analgesic agent," that is indicated "for the relief of mild to moderate pain."Phy-sicians' Desk Reference, p. 3504 (57th Ed. 2003).
In her Memorandum in Support of her Motion for Summary Judgment, the Plaintiff makes limited references to her medical records. See Docket No. 11. Accordingly, we will only recite those portions of the Plaintiff's file which the Plaintiff has deemed pertinent to her challenge to the Commissioner's decision. We have, of course, reviewed the entirety of the Plaintiff's medical records which, we note, are not extensive.
It appears from the Record that the Plaintiff's primary physi-cian was Dr. Keith J. Olson, who began seeing the Plaintiff, for her asthma, in or about 1995. [T. 130]. On September 25, 1996, the Plaintiff called Dr. Olson's office with complaints of asthma, and she reported that her inhaler was not as effective as in had been. Id. It was also noted that the Plaintiff was taking Pro-ventil tablets. Id. On October 15, 1996, and again on October 31, 1996, the Plaintiff cancelled her scheduled appointments with Dr. Olson. Id.
Proventil is a brand of albuterol, and is indicated "for the prevention and relief of bronchospasm in patients with reversible obstructive airway disease, and is also administered for the prevention of exercise-induced bronchospasm. Physician's Desk Reference, p. 3063 (57th Ed. 2003).
On May 23, 1997, the Plaintiff telephoned Dr. Olson's office in order to request a refill for her prescriptions. Id. It was noted that the Plaintiff had not been seen by Dr. Olson since 1995, and therefore, the Plaintiff was told that she would have to make an appointment to see Dr. Olson before he would give her a refill of her prescriptions. Id. The Plaintiff was not, however, seen by Dr. Olson until May 6, 1998, almost one year later. Id.
On May 6, 1998, Dr. Olson examined the Plaintiff. Id. He re-corded that she was currently employed at Mastermart Plastics ("Mastermart"), a plastic manufacturer, and that she complained that her symptoms, and cough, were worse at work. Id. The Plain-tiff stated that she was a non-smoker, but that she was exposed to secondhand smoke in her home, from family members who did smoke. Id. The Plaintiff also reported a recent history of colds and as-thma, but Dr. Olson noted that the Plaintiff had not been recently evaluated for either colds or asthma. Id. Dr. Olson concluded that the Plaintiff required a new course of treatment, and he pre-scribed a Vanceril inhaler, and Singulair tablets. [T. 128, 130].
Vanceril is a trademark preparation of beclomethasone dipropionate, see Dorland's Illustrated Medical Dictionary, at p. 1932 (29th Ed. 2000), which is an anti-inflammatory steroid indicated for the relief of the symptoms of seasonal or perennial rhinitis. See Physician's Desk Reference, at pp. 3083-84 (57th Ed. 2003). Rhinitis is an inflammation of the mucuous membrane of the nose. See Dorland's Illustrated Medical Dictionary, at p. 1572 (29th Ed. 2000).
"Singulair is indicated for the prophylaxis and chronic treatment of asthma in adults and pediatric patients 2 years of age and older." Physician's Desk Reference, p. 2086 (57th Ed. 2003).
On September 19, 1998, the Plaintiff was seen by Dr. Olson for follow-up regarding her new course of treatment. [T. 128]. The Plaintiff reported improvement with her asthma, and told Dr. Olson that she was able to run more often at work. Id. Upon examina-tion, Dr. Olson observed improved aeration in the Plaintiff's lungs, and she was without rales or a wheeze. Id. Dr. Olson noted that the Plaintiff's asthma had improved. Id.
Asthma is defined as "recurrent attacks of paroxysmal dsypnea, with airway inflammation and wheezing due to spasmodic concentration of the bronchi." Dorland's Illustrated Medical Dictionary, at p. 163 (29th Ed. 2000).
A "rale" is a "discontinuous sound consisting of a series of short nonmuscial noises, heard primarily during inhalation; called also crackle." Dorland's Illustrated Medical Dictionary, at p. 1516 (29th Ed. 2000).
A "wheeze" refers to "a continuous sound consisting of a whistling noise with a high pitch thought to be generated by gas flowing through narrowed airways." Dorland's Illustrated Medical Dictionary, at p. 1986 (29th Ed. 2000).
On September 22, 1999, the Plaintiff presented to Dr. Olson with complaints of nasal congestion. [T. 129]. Dr. Olson observed that the Plaintiff was not short of breath. Id. He diagnosed the Plaintiff with acute bronchitis with co-morbidity of asthma. Id.
Bronchitis is defined as an "inflammation of a bronchus or bronchi" — "any of the larger air passages of the lungs" — characterized by symptoms which include fever, coughing, and expectoration. Dorlands Illustrated Medical Dictionary, at p. 244, 246 (29th Ed. 2000).
On April 24, 2000, the Plaintiff consulted with Dr. Olson as to complaints of symptoms of bronchitis. [T. 126]. Upon examination, Dr. Olson observed that the Plaintiff did not appear to have any symptoms of respiratory distress, and was not wheezing, but she stated that she had an occasional, unproductive cough. Id. Dr. Olson's examination revealed no abnormalities. Id. The Plaintiff was given samples of Avelox, and a prescription for a Vanceril in-haler. Id. He also authorized the purchase of a nebulizer machine, and he prescribed an Albuterol pre-mixed solution to be used in the nebulizer machine. Id. Dr. Olson decreased the Plain-tiff's dosage of Singulair. Id.
Avelox is a synthetic broad spectrum antibacterial agent, which is indicated for the treatment of adults with infections caused by susceptible strains of microorganisms, including bacterial sinusitis, acquired pneumonia, and chronic bronchitis. See Physician's Desk Reference, p. 870-72 (57th Ed. 2003).
A "nebulization" is a "treatment by aerosol." Dorland's Il-lustrated Medical Dictionary, at p. 1179 (29th Ed. 2000).
On April 27, 2000, the Plaintiff telephoned Dr. Olson's office in order to report that the prescription for Avelox upset her stom-ach and made her feel nauseated. Id. On May 29, 2000, the Plain-tiff was seen by Dr. Olson with complaints of a sore throat. [T. 125]. Dr. Olson told the Plaintiff to follow-up if her conditions persisted or worsened. Id. The Plaintiff was not seen again, by Dr. Olson, and the only other medical records, which related to care by Dr. Olson, were requests by the Plaintiff for refills of her prescriptions. [T. 126]. On July 5, 2000, the Plaintiff re-ceived a refill of her prescription for Singulair and, on September 28, 2000, her prescriptions for Albuterol, and the Vanceril in-haler, were refilled. Id.
On October 21, 2001, the Plaintiff was evaluated by Dr. Paul M. Reitman, a licensed psychiatrist. [T. 142-148]. The Plaintiff reported to Dr. Reitman that she had last worked in 1998, at which time, she had worked at Mastermark, where she had worked for five years. [T. 143]. The Plaintiff told Dr. Reitman that she was forced to stop working because the chemicals made it difficult for her to breath. Id. She also stated that she had severe asthma, and that she suffered from severe migraine headaches. Id. She complained that she was short of breath.Id. The Plaintiff also reported that she had attempted to work at Casey's Convenience Store ("Casey's"), but that she also had to stop working there be-cause the cleaning chemicals bothered her. Id. Dr. Reitman noted that the Plaintiff denied using any drugs, alcohol, or smoking. Id.
In his evaluation of the Plaintiff, Dr. Reitman recorded the Plaintiff's self-description of her daily activities. [T. 144]. The Plaintiff explained to Dr. Reitman that she typically arose at approximately 8:00 o'clock a.m., after which she had coffee, and read or watched the news. Id. The Plaintiff reported that she cleaned the house, including washing the dishes, vacuuming, and mopping the floors. Id. She also stated that she put the pets outside. The Plaintiff testified that she enjoyed cooking, and that she cooked dinner for her husband every night. Id. She added that she also enjoyed watching television, and visiting with her children, and grandchildren, who she saw every other day. Id.
The Plaintiff told Dr. Reitman that she had difficulty sleep-ing due to her asthma, but Dr. Reitman observed that the Plaintiff had not seen her doctor since last August. Id. Dr. Reitman fur-ther observed that the Plaintiff had never received any psychia-tric, or psychological treatment, of any kind. Id. The Plaintiff did acknowledge a history of sexual assault. Id. She told Dr. Reitman that she had been sexually assaulted as a child, by her brother, and that, when she was twelve, her brother-in-law had sexually assaulted her. Id. She also reported experiencing some on the job sexual harassment, and stated that she suffered from nightmares as a result of those experiences. Id.
Upon examination, Dr. Reitman reported that the Plaintiff was oriented to time, place, and person, but that she displayed symp-toms of anxiety. Id. The Plaintiff reported episodes of anxiety attacks. Id. She also complained that, at times, she experienced a sense of "unreality." Id. She did not display any disasso-ciative episodes, but did appear to have some paranoid ideation in terms of feeling somewhat mistrustful. Id.
B. Hearing Testimony. The ALJ commenced the Hearing, on October 23, 2001, by explaining the Hearing procedures, and by ask-ing the Plaintiff several biographical questions. [T. 30-31]. The Plaintiff testified that she was born in Sioux City, Iowa, and that she celebrated her forty-ninth birthday on September 18, 2001. [T. 31-32]. The Plaintiff also testified that she was married, and that she lived with her husband [T. 32]. She then testified that she did not have a driver's license and, therefore, that she never drove. Id.
Responding to additional questions from the ALJ, the Plaintiff testified that she finished school through the tenth grade. [T. 33]. She related that she was last employed on December 12, 1998.Id. She explained that she had stopped working, at Mastermart, be-cause the chemicals made it difficult for her to breath. Id. The Plaintiff reported that she had worked at Mastermart, full time, for five years. Id.
The ALJ then questioned the Plaintiff about the circumstances that led her to end her employment. [T. 33-34]. The Plaintiff re-sponded that she was not fired, but rather, she quit when her breathing started to bother her. She testified that she had per-formed her job satisfactorily, and that, in her five years at Mas-termart, she had never missed a day of work. [T. 34]. She also explained that Mastermart began putting different chemicals in the plastics. Id.
The Plaintiff next testified about her medical condition. Id. She testified that she was diagnosed with asthma, and that she was prescribed a steroid inhaler, and a machine for breathing.Id. She stated that she used the inhalers twice a day. [T. 34-35]. She also testified that she used the breathing machine everyday, sometimes twice and, on other days, sometimes three times. [T. 35]. The Plaintiff also stated that she had used the inhalers while she was working at Mastermart. Id.
The ALJ asked the Plaintiff whether she had ever had to go to the emergency room because of her asthma. [T. 36]. The Plaintiff testified that, on one occasion, prior to 1998, she had to go to the emergency room. Id. She testified that she had never been hospitalized because of her asthma. Id.
In addition to her asthma, the Plaintiff testified that she suffered from migraine headaches, and ulcers. [T. 37-38]. She stated that she first began having problems with ulcers when she was eleven years old. [T. 37]. The Plaintiff testified, however, that she was not currently receiving medical care for her ulcers. [T. 38]. She stated that her migraine headaches would sometimes last for a week, but also noted that she was given a prescription for Ibuprofen which, she testified, had helped. Id.
The ALJ next questioned the Plaintiff about her physical limi-tations. [T. 38]. The Plaintiff testified that she had no limita-tions on the length of time she could stand, walk, or sit.Id. She stated that second-hand cigarette smoke caused her asthma to act up. Id. The Plaintiff related that she performed all of the work around the house, including cooking, washing the dishes, shop-ping, laundry, and vacuuming. [T. 39-40]. Both the Plaintiff, and her husband, balanced their checkbook. [T. 40].
The Plaintiff reported that, once a week, she watched her grandson, and that she spoke to her daughter, on the phone, every-day. [T. 40-41]. She testified that she read detective magazines, and the newspaper. Id. The Plaintiff reported that she enjoyed playing Solitaire. She recounted that her hobby was making pillows and blankets. [T. 41]. She explained that it took her approxi-mately an hour and a half to make a pillow. Id. She stated that, over the years, she had probably made 37 pillows. [T. 42].
The Plaintiff next testified about her employment status. [T. 43-45]. She testified that, in 1998, while she still worked at Mastermart, she also worked at Casey's. [T. 45]. She stated that she quit working at Casey's because the chemicals, that she used there, caused her asthma to act up. Id. The Plaintiff testified that, since 1998, she had not applied, or searched, for any jobs, because she believed that all of the jobs in her area required her to work with chemicals. Id.
The ALJ then asked the Plaintiff if she thought she would be able to work in a day care center for children, since she cared for her grandchild once a week. [T. 45-46]. The Plaintiff testified that all of the day care centers were filled, and that she was not licensed, but she conceded that she would be able to perform the work. Id.
The ALJ then asked the Plaintiff about her past work experience. [T. 46-47]. The Plaintiff testified that she worked at a turkey processing plant in 1991, but was laid-off. Id. She also stated that, although she would have looked for other work if she had not been laid-off, she could still perform the work she per-formed at the turkey processing plant. Id.
Lastly, the ALJ asked the Plaintiff if she had ever been treated for depression or mental illness. [T. 48]. The Plaintiff answered in the negative, and stated that she had never been treat-ed for either. Id.
The Hearing continued with the Plaintiff's attorney questioning her. [T. 49-50]. The Plaintiff's attorney asked her about the incidents of sexual harassment that she experienced at Master-mart. [T. 50]. The Plaintiff testified that she was sexually har-assed by her supervisor, and by another person.Id. She stated that the harassment continued for a period of six months, and that it did not stop until she quit. Id.
Responding to other questions posed by her attorney, the Plaintiff testified that, in addition to cigarette smoke, anxiety also caused her asthma to act up. [T. 51-52]. Specifically, the Plaintiff related an incident in which she was riding in a car that drove under a bridge, which caused her to experience asthmatic con-ditions because she was claustrophobic. Id. She also reported an incident in which she saw a group of African-American men, who did nothing threatening, but who caused the Plaintiff to feel anxious. [T. 52].
The Plaintiff's examination, by her attorney, concluded with the Plaintiff's attorney explaining to the ALJ that the Plaintiff was examined by Dr. Reitman, after the Administration refused the attorney's request for a consultative exam. [T. 50]. Earlier in his examination of the Plaintiff, the Plaintiff's attorney asked the Plaintiff about her family history, and the Plaintiff testified that she had siblings who were in special education, and who had epilepsy. [T. 49].
The ALJ then examined Dr. Endahar, the Medical Expert ("ME"). [T. 53]. The ME testified that the Plaintiff's medical records substantiated a diagnosis of chronic asthma bronchitis, and an anxiety disorder with panic attacks. Id. With regard to her as-thma, the ME testified that a series of pulmonary function studies, which were conducted on January 29, 2001, revealed that her pulmon-ary function was within normal ranges, and that, for her age and height, the values were actually better than normal.Id. The ME testified that those results signified to him that the Plaintiff's condition could return to normal. [T. 53-54]. The ME stated that, as an internist, he was not qualified to render an opinion on the Plaintiff's diagnosis of panic attacks. [T. 54].
The ME testified that the Plaintiff's asthma would not impose any exertional limitations on her, but that she would suffer some environmental limitations. Id. Specifically, the ME testified that the Plaintiff would not be able to work in places where she would be exposed to noxious chemicals, fumes, dust, smoke, or per-fumes. Id.
Finally, responding to a question posed by the Plaintiff's at-torney, the ME testified that the symptoms of panic attacks could include shortness of breath, but that panic attacks were not amen-able to individuals with bronchodilators, like the Plaintiff. [T. 55].
The ALJ next examined the Vocational Expert ("VE"). Id. At the outset, the VE corrected the Record, by adding the position of turkey eviscerator to the list of the Plaintiff's prior work his-tory. [T. 55-56]. The ALJ then asked the VE to assume an in-dividual who had no exertional limitations, but who was limited in her ability to work in environments containing noxious chemicals, fumes, dust, smoke, or perfumes. [T. 56]. Considering those limi-tations, the VE opined that the Plaintiff was unable to return to her work as a plastics laborer, but he testified that the Plaintiff could still perform her past work as a turkey eviscerator, as the Plaintiff had earlier testified. Id. The VE stated that there were approximately 2,040 positions available as a meat, poultry, or fish cutter and trimmer, in the State of Minnesota. Id.
The VE also testified that the Plaintiff would be able to work as an assembler, of which there were 43,410 jobs in the State of Minnesota; an inspector, of which there were 8,460 jobs in the State of Minnesota; and a packager, of which there were 14,200 jobs in the State of Minnesota. [T. 57]. However, the VE eliminated 20% of those positions as unclean and, therefore, not within the Plaintiff's environmental limitations. [T. 57-58].
The VE was then questioned by the Plaintiff's attorney. [T. 58-59]. The Plaintiff's attorney referred the VE to Dr. Reitman's summary of his examination of the Plaintiff, and specifically to Dr. Reitman's observation that the Plaintiff had severe impairments in her ability to concentrate. Id. The Plaintiff's attorney asked the VE to assume that additional limitation in his hypothetical, and asked the VE whether the Plaintiff would still be able to per-form competitive employment. Id. The VE responded that the Plain-tiff would not be able to perform competitive employment if her ability to concentrate was severely impaired. Id. The Hearing was then adjourned. [T. 60].
C. The ALJ's Decision. The ALJ issued his decision on December 27, 2001. [T. 15-21]. As he was required to do, the ALJ applied the sequential, five-step analytical process that is prescribed by 20 C.F.R. § 416.920. As a threshold matter, the ALJ concluded that the Plaintiff had not engaged in substantial gainful activity since the date of her alleged onset of disability. [T. 16].
Under the five-step sequential process, the ALJ analyzes the evidence as follows:
(1) whether the claimant is presently engaged in a "substantial gainful activity;" (2) whether the claimant has a severe impairment that significantly limits the claimant's phys-ical or mental ability to perform basic work activities; (3) whether the claimant has an impairment that meets or equals a presump-tively disabling impairment listed in the regulations; (4) whether the claimant has the residual functional capacity to perform his or her past relevant work; and (5) if the claim-ant cannot perform the past work, the burden then shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform.Simmons v. Massanari, 264 F.3d 751, 754-55 (8th Cir. 2001).
A claimant is disabled only if he is not engaged in substantial gainful activity; he has an impairment that limits his ability to perform basic work activities; and his impairment is either pre-sumptively disabling, or he does not have the residual functional capacity to perform his previous work, and he cannot perform other work existing in the national economy. Id. at 754.
Next, the ALJ examined whether the Plaintiff was subject to any severe physical or mental impairments, which would substantially compromise her ability to engage in work activity. See20 C.F.R. § 416.921. After considering the Plaintiff's medical his-tory, and the testimony given at the Hearing, the ALJ found that the Plaintiff was severely impaired by a history of asthma, and a diagnosis of panic attacks. [T. 16]. With respect to the Plain-tiff's mental impairment, the ALJ concluded, based on the Record, and the Hearing testimony, that the Plaintiff had no limitations in activities of daily living, and only mild limitations in social functioning. [T. 19]. The ALJ also found that the Plaintiff had no apparent deficits of concentration, persistence, or pace, and that she had no episodes of decompensation. Id.
At the Third Step, the ALJ compared the Plaintiff's severe im-pairments to the impairments contained in Appendix 1, Subpart P of the Regulations. See 20 C.F.R. § 416.920(d). The ALJ, however, determined that the Plaintiff's impairments, either individually or in combination, did not meet, or equal, the criteria of any Listed Impairment. [T. 16].
Appendix 1 contains a Listing of Impairments that identifies a number of different medical conditions, and describes a required level of severity for each condition. If the required severity is met, the claimant is found disabled without considering vocational factors.
The ALJ then determined the Plaintiff's RFC. [T. 19]. The ALJ first recognized his obligation to conduct a credibility assessment in accordance with the factors delineated in Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984). [T. 17-19]. After con-sidering all of the evidence in the Record, the ALJ concluded as follows:
RFC is defined as the most an individual can still do after considering the effects of physical or mental limitations that af-fect that individual's ability to perform work-related tasks. 20 C.F.R. § 416.945.
[T]he claimant retains the following residual functional capacity: simple, repetitive tasks; and no exposure to fumes, dusts, gases, and smoke.
[T. 19].
Proceeding to the Fourth Step, the ALJ discussed the testimony of the VE concerning the Plaintiff's ability to perform her past work. [T. 19-21]. Based on the RFC, and the testimony of the VE, the ALJ determined that the Plaintiff retained the ability to perform her past work in a turkey processing plant. [T. 21]. He further con-cluded that the Plaintiff's "medically determinable history of as-thma, borderline intellectual functioning, and anxiety do not pre-vent the claimant from performing her past relevant work." Id. Consequently, the ALJ held that the Plaintiff was "not under a `dis-ability'" and, therefore, was not entitled to a period of disability or DIB. Id.
IV. Discussion
A. Standard of Review. The Commissioner's decision must be affirmed if it conforms to the law and is supported by substantial evidence on the Record as a whole. See Title 42 U.S.C. § 405(g) ; see also, Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002); Qualls v. Apfel, 158 F.3d 425, 427 (8th Cir. 1998); Gallus v. Callahan, 117 F.3d 1061, 1063 (8th Cir. 1997). This standard of review is more than a mere search for the existence of evidence supporting the Com-missioner's decision. See Morse v. Shalala, 32 F.3d 1228, 1229 (8th Cir. 1994), citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488-91 (1951). Rather, the substantiality of the evidence must take into account whatever fairly detracts from its weight, See Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998); Newton v. Chater, 92 F.3d 688, 692 (8th Cir. 1996), and the notable distinction between "substantial evidence," and "substantial evidence on the record as a whole," must be observed. SeeWilcutts v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998). On review, a Court must take into consi-deration the weight of the evidence, apply a balancing test, and determine whether or not substantial evidence in the Record as a whole supports the findings of fact upon which a Plaintiff's claim was denied. SeeLoving v. Secretary of Health and Human Services, 16 F.3d 967, 969 (8th Cir. 1994); Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989).Substantial evidence means more than a mere scintilla, it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Moad v. Massanari, 260 F.3d 887, 890 (8th Cir. 2001); Jackson v. Apfel, 162 F.3d 533, 536 (8th Cir. 1998); Black v. Apfel, 143 F.3d 383, 385 (8th Cir. 1998). Stated other-wise, "[s]ubstantial evidence is something less than a preponder-ance, but enough that a reasonable mind would conclude that the evi-dence supports the decision." Banks v. Massanari, 258 F.3d 820, 822 (8th Cir. 2001). Therefore, "`[i]f, after review, we find it possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, we must af-firm the denial of benefits.'" Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001), quoting Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1996); see also, Fenton v. Apfel, 149 F.3d 907, 910 (8th Cir. 1998); Scott v. Chater, 112 F.3d 367, 368 (8th Cir. 1997). Under this standard, we do not reverse the Commissioner even if this Court, sitting as the finder-of-fact, would have reached a contrary result. See Harris v. Shalala, 45 F.3d 1190, 1193 (8th Cir. 1995); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).
Consequently, the concept of substantial evidence allows for the possibility of drawing two inconsistent conclusions and, there-fore, it embodies a "zone of choice," within which the Commissioner may decide to grant or deny benefits without being subject to re-versal on appeal. See Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994); see also, Haley v. Massanari, 258 F.3d 742, 746 (8th Cir. 2001) ("[A]s long as there is substantial evidence in the record to support the Commissioner's decision, we will not reverse it sim-ply because substantial evidence exists in the record that would have supported a different outcome, Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995), or `because we would have decided the case dif-ferently.'"), quoting Holley v. Massanari, 253 F.3d 1088, 1091 (8th Cir. 2001). Our review of the ALJ's factual determinations, there-fore, is deferential, and we neither reweigh the evidence, nor re-view the factual record de novo. See Flynn v. Chater, 107 F.3d 617, 620 (8th Cir. 1997);Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996).
B. Legal Analysis. In support of her Motion for Summary Judgment, the Plaintiff advances the following arguments:
1. The ALJ Failed to Find that the Plaintiff's Mental Impairment Satisfied the Listing Contained in Section 12.05(c).
2. The ALJ Failed to Consider whether the Plaintiff's Impairments, in Combination, Equaled a Condition Contained in the List-ings.
3. The ALJ Erroneously Concluded that the Plaintiff's Past Work as a Turkey Eviscerator Constituted Past Relevant Work Within the Meaning of the Regulations.
We address each contention in turn, commencing with the Plaintiff's argument that her mental impairment met the Listing contained in Section 12.05(c).
1. Whether the ALJ Failed to Find that the Plaintiff's Mental Impairment Satisfied the Listing Contained in Section 12.05(c).
The Plaintiff asserts that her condition meets the criteria contained in Section 12.05(c) of the Listings for mental retardation.
1) Standard of Review. "Section 12.05(c) provides that mental retardation is sufficiently severe to constitute a list-ed disability for an adult when the claimant has: (1) `[a] valid verbal, performance, or full scale IQ of 60 through 70,' and (2) `a physical or other mental impairment imposing additional and signifi-cant work-related limitation of function.'" Jones v. Barnhart, 335 F.3d 697, 669 (8th Cir. 2003), quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(c) (2002). "A physical or other mental impairment is sufficient to satisfy the second part of this test when such impair-ment `has a "more than slight or minimal" effect on [the claimant's] ability to perform work.'" Id., quoting Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir. 2000), quoting, in turn, Cook v. Bowen, 797 F.2d 687, 690 (8th Cir. 1986).
Mental retardation is a significantly subaverage general in-tellectual functioning with deficits in adaptive behavior initially manifested during the developmental period (before age 22). Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001).
2) Legal Analysis. To support her assertion, that her condition satisfies the criteria of Section 12.05(c) of the Listings, the Plaintiff notes that, on October 21, 2001, she was examined by Dr. Reitman, and that Dr. Reitman stated that the Plain-tiff had a full scale IQ score of 70. [T. 145]. An IQ score of 70 clearly falls within the range of scores that satisfies the first prong of Section 12.05(c) of the Listings. However, "[a]n ALJ may disregard a claimant's IQ score when it is derived from a one-time examination by a non-treating psychologist, paicularly if the score is inconsistent with the claimant's daily activities and be-havior." Muncy v. Apfel, 247 F.3d 728, 733 (8th Cir. 2001), citing Clark v. Apfel, 141 F.3d 1253, 1255-56 (8th Cir. 1998); see also, Holland v. Apfel, 153 F.3d 620, 621-22 (8th Cir. 1998) ("An IQ test is useful in determining whether an applicant has a mental impair-ment, but other information in the record which indicates the indi-vidual's ability to function can be used to discredit the lone IQ score."), citing Mackey v. Shalala, 47 F.3d 951, 953 (8th Cir. 1995) (Other evidence in the record can be examined to discredit IQ in-dicative of mild mental retardation).
As the Defendant notes, even Dr. Reitman did not specifically diagnose the Plaintiff as mentally retarded, but rather, he observed that the Plaintiff's IQ scores were "considered to be in the low-average to borderline range." [T. 145]. Nonetheless, while the ALJ, in his decision denying the Plaintiff's claim for benefits, discussed Dr. Reitman's examination and conclusions, he did not make specific reference the Plaintiff's IQ score, nor did he discredit her IQ score of 70. Thus, for the purposes of our analysis, we assume, without deciding, that the Plaintiff's condition satisfies the first prong of Section 12.05(c).
Even where it is undisputed that a claimant's IQ score meets the criteria of Listing 12.05(c), the claimant must still possess an "additional and significant" limitation in order to satisfy the Listing. See Jones v. Barnhart, supra at 669. While the ALJ deter-mined that the Plaintiff did not suffer any exertional limitations upon her ability to work, the Plaintiff argues that she has "`pro-found deficits with respect to attention and concentration,'" that she experiences "`serious depressive symptomology'" and "`signifi-cant anxiety.'" Plaintiff's Memorandum, at p. 6, quoting Dr. Reit-man's October 21, 2001 Evaluation; [T. 145-146]. The only medical evidence, which is offered by the Plaintiff to support her assertion that she has the stated "additional and significant" limitations, is the evaluation of Dr. Reitman, who observed the Plaintiff, on one occasion and at the behest of the Plaintiff's attorney. The Record is devoid of any further evidence that the Plaintiff suffers any limitations, other than the environmental limitations discussed by the VE, and incorporated into the ALJ's decision.
At the outset, we note that, unlike the opinions of the Plain-tiff's treating physicians, the opinions of Dr. Reitman, a non-treating medical care source, who saw the Plaintiff only once and at the request of her attorney, can be discounted, as it was not en-titled to any different treatment than the opinion of a consulting physician. See Henderson v. Sullivan, 930 F.2d 19, 21 (8th Cir. 1991), citing Lanning v. Heckler, 777 F.2d 1316, 1318 (8th Cir. 1985). The ALJ properly discounted Dr. Reitman's opinions. Speci-fically, in his decision, the ALJ reasoned as follows:
The undersigned did not place controlling weight on the opinion of Dr. Reitman given the inconsistency between the opinion of moderately severe anxiety and the claimant's lack of men-tal health treatment and high level of func-tioning.
[T. 19].
The ALJ's decision to give the opinions of Dr. Reitman little weight is supported by substantial evidence in the Record. At the Hearing, the Plaintiff testified that she had no history of mental health problems, and that she never sought treatment for any mental health problems. [T. 48]. In his evaluation, Dr. Reitman also noted that the Plaintiff reported that she had never undergone any psychiatric or psychological treatment. [T. 144]. Further, in her Application for SSI, the Plaintiff stated that she was impaired by "lung and breathing problems," and she made no reference to any mental limita-tions. [T. 85-88].
The Plaintiff testified that she did not take special education classes while she was in school. [T. 33]. She also testified that both she, and her husband, balanced the check book. [T. 40]. She also recited a number of daily activities that contradict a finding that she suffered from significant mental limitations. She testi-fied that she watched her grandchild, read, and made pillows, quilts, and blankets. [T. 39-41]. She also told the ALJ that she could work in day care, and in her past job in a turkey processing plant. [T. 45-47]. Lastly, there is no indication in the Record that the Plaintiff's mental condition had deteriorated as she had aged, and the Plaintiff testified that she worked at Mastermart for a period of five years and, in that time, she never missed a day of work, and she performed that job satisfactorily. [T. 33]. Thus, to the extent that the Plaintiff suffered from any mental impair-ment, there was no evidence, in the Record, to suggest that she did not suffer from those impairments while she worked at Mastermart, Casey's, or the turkey processing plant, and therefore, those limi-tations, if any there be, did not significantly affect her perfor-mance at any of her past relevant work. As such, any mental limi-tations were not significantly limiting. Accordingly, the ALJ's decision not to give the opinions of Dr. Reitman controlling weight was supported by substantial evidence in the Record.
Having properly discounted the opinions of Dr. Reitman, there is absolutely no evidence in the Record of any functional, or exer-tional limitations, to support a finding that the Plaintiff was im-paired by any "additional and significant" restrictions. Thus, the Plaintiff did not satisfy the second prong of Listing 12.05(c). Ac-cordingly, even though the Plaintiff was never diagnosed by any phy-sician, including Dr. Reitman, as being mentally retarded, the ALJ's decision, that the Plaintiff's mental impairments did not meet the criteria of any Listing, including, without express reference, List-ing 12.05(c), was supported by substantial evidence in the Record. Therefore, we recommend that the Plaintiff's Motion for Summary Judgment in this regard be denied.
2. Whether the ALJ Failed to Consider whether the Plaintiff's Impairments, in Combination, Equaled a Condition Contained in the Listings.
The Plaintiff argues that she suffers from both asthma, a physical limitation, as well as unspecified psychological impairments. Therefore, the Plaintiff contends that the ALJ was re-quired, under the Regulations, to consider her limitations in combi-nation. The Plaintiff also argues that the ALJ's finding, that her impairments, in combination, did not meet or equal any of the List-ings, was not based on substantial evidence because the ALJ failed to obtain an opinion from a medical expert concerning the Plain-tiff's psychological impairments.
At the outset, it appears that the ALJ did consider all of the Plaintiff's impairments, both physical and psychological, in combi-nation, when he decided to deny the Plaintiff's claim for benefits. In his decision, the ALJ held that "[t]he claimant's medically determinable history of asthma, borderline intellectual functioning, and anxiety do not prevent the claimant from performing her past relevant work." [T. 21]. Further, one of the premises, on which the Plaintiff's argument is based, is seriously flawed. While the Plaintiff argues that she suffered from psychological limitations, the ALJ specifically found that the Plaintiff did not suffer from any psychological impairments. Specifically, the ALJ held that "the claimant has no limitations in daily activities and mild limitations in social functioning." [T. 19]. He also found that she "has no apparent deficits of concentration, persistence, or pace," and that she "has no episodes of decompensation." Id.
The ALJ's determination, that the Plaintiff did not suffer from any psychological limitations, was supported by substantial evidence in the Record. The ALJ based that finding primarily on the Plain-tiff's testimony at the Hearing. Id. The ALJ noted that she testi-fied that she was married, and that she performed all of the house-hold chores, including cleaning, cooking, laundry, and shopping. [T. 19, 40-42]. As noted, the Plaintiff also testified that she balanced the check book with her husband [T. 40-42]. The ALJ then recounted that the Plaintiff spent time reading, playing solitaire, watching television, and making pillows and blankets. [T. 19, 40-42]. The ALJ stated that the Plaintiff reported taking care of her grandchild. Id. The Plaintiff further testified that she could perform work in day care, and could return to her prior job in a turkey processing plant. [T. 45-47].
As stated, the only indication, in the Record, that the Plain-tiff suffered from any psychological limitations was contained in the opinion of Dr. Reitman. As we have already detailed, the ALJ properly discounted Dr. Reitman's opinion, that the Plaintiff suf-fered from psychological limitations, as we have found that the ALJ's assessment of Dr. Reitman's opinion was properly supported by substantial evidence in the Record. Therefore, we recommend that the Plaintiff's Motion for Summary Judgment be denied in this re-spect as well.
3. Whether the ALJ Erroneously Concluded that the Plaintiff's Past Work as a Turkey Eviscerator Constituted Past Relevant Work Within the Meaning of the Regulations.
The Plaintiff argues that the work, which she had performed as a turkey eviscerator, was not "past relevant work" as defined in the Regulations, because she was employed at Jennie-O-Turkey — the turkey processing plant at which she had worked — for less than thirty days. While we note that the Plaintiff testified, at the Hearing, that she had worked at the turkey processing plant for six months, she attached an Employee Earnings Report, for the year ending December 11, 1994, which recorded that she was paid, at that plant, from April of 1994, until May of 1994 — approximately thirty days. While we do not find that attachment to be conclusive evidence as to the entire duration of the Plaintiff's employment at that plant, especially in light of her testimony at the Hearing, for these purposes, we find that the Plaintiff only worked at the Jennie-O-Turkey plant for a period of approximately thirty days.
1) Standard of Review. "To be relevant, past work must have been done within the last 15 years, lasted long enough for the person to learn to do it, and constituted `substantial gainful activity.'" Reeder v. Apfel, 214 F.3d 984, 989 (8th Cir. 2000), citing 20 C.F.R. § 416.965 (a). "The regulations define substantial gainful activity as work activity that involves doing significant physical or mental activities, even if done on a part-time basis, and work that is done for pay or profit, whether or not a profit is realized." Id., citing 20 C.F.R. § 404.1565 (a), (b). Further, "earnings of more than $500 a month in a calendar year after 1989 constitute substantial gainful activity." Roe v. Chater, 92 F.3d 672, 679 (8th Cir. 1996), citing 20 C.F.R. § 404.1574 (b)(2) (vii).
2) Legal Analysis. There is no dispute that the Plaintiff had worked at the Jennie-O-Turkey plant in the last fif-teen years, and that she Plaintiff worked there long enough to learn how to properly perform her job duties. Moreover, the Plaintiff testified that she was laid-off, and that, had she not been laid-off, she could still work at the plant, although she expressed her dissatisfaction with that work. [T. 47-48]. Thus, the Plaintiff's challenge solely turns on whether her work at Jennie-O-Turkey con-stituted "substantial gainful activity." To support her position, the Plaintiff cites to20 C.F.R. § 416.974©) (3), which provides as follows:
If you worked 3 months or less. We will consider work of 3 months or less to be an unsuc-cessful work attempt if you stopped working, or you reduced your work and earnings below the substantial gainful activity earnings level, because of your impairment or because of the removal of special conditions which took into account your impairment and permitted you to work.Id.; see also, Andler v. Chater, 100 F.3d 1389, 1392 (8th Cir. 1996) ("A work effort that lasts less than three months can be considered an unsuccessful work attempt when a claimant is unable to perform work for more than a short time, and must quit due to an impairment, or due to the removal of special conditions related to the impair-ment that are essential to the further performance of the work."), citing Sample v. Shalala, 999 F.2d 1138, 1142 (7th Cir. 1993); 20 C.F.R. § 416.974 (a)(1).
Assuming that the Plaintiff worked at the Jennie-O-Turkey plant for three months or less, to be considered an "unsuccessful work at-tempt," as the Plaintiff urges, she must have stopped working due to an impairment. See, e.g., Lanes v. Harris, 656 F.2d 285, 287-88 (8th Cir. 1981) ("[The plaintiff] quit the job after five weeks be-cause of his inability to do the stooping and the bending and the lifting of the meters and the working at the bench."). However, the Plaintiff stopped working at the Jennie-O-Turkey plant, not because of any impairments, but because she was laid-off. [T. 47]. Thus, unlike the plaintiff inLanes, the Plaintiff's work at the Jennie-O-Turkey plant was not an "unsuccessful work attempt."
The Plaintiff's Employee Earnings Report reveals that, from the period of April 30, 1994, until May 28, 1994, the Plaintiff was paid a total of $844.39, which constitutes "substantial gainful acti-vity." Roe v. Chater, 92 F.3d 672, 679 (8th Cir. 1996) ("Earnings of more than $500 a month in a calendar year after 1989 constitute sub-stantial gainful activity."), citing20 C.F.R. § 416.974 (b)(2) (vii). Accordingly, we find that the Plaintiff's past work as a turkey evi-serator constituted "past relevant work" within the meaning of the Regulations. Therefore, we recommend that the Plaintiff's Motion for Summary Judgment be denied in its entirety, and that the Defen-dant's cross Motion for Summary Judgment be granted.
NOW, THEREFORE, It is —
RECOMMENDED:
1. That the Plaintiff's Motion [Docket No. 11] for Summary Judgment be denied.
2. That the Defendant's Motion [Docket No. 13] for Summary Judgment be granted.