Opinion
No. C98-4041-MWB
May 6, 1999.
REPORT AND RECOMMENDATION
I. INTRODUCTION
The plaintiff appeals the administrative law judge's ("ALJ") denial of Title II disability insurance ("DI") benefits and Title XVI supplemental security income ("SSI") benefits. The plaintiff contends that the ALJ's decision was not based on substantial evidence. Specifically, that the plaintiff argues that the ALJ erred in analyzing his subjective pain complaints under Polaski . As a consequence, the plaintiff claims that he is entitled to an award of DI and SSI benefits, or, in the alternative, a remand of his case for rehearing.
Polaski v. Heckler, 739 F.2d 1320, 1322, supplemented, 751 F.2d 943 (8th Cir. 1984). The United States Supreme Court vacated the Polaski decision, 476 U.S. 1167, 106 S. Ct. 2885, 90 L. Ed. 2d 974 (1986), and remanded the case to the Eighth Circuit Court of Appeals for reconsideration in light of Bowen v. City of New York, 476 U.S. 467, 106 S. Ct. 2022, 90 L. Ed. 2d 462 (1986). See Bowen v. Polaski, 476 U.S. 1167, 106 S. Ct. 2885, 90 L. Ed. 2d 974 (1986). On remand, the Eighth Circuit adhered to its original decision. Bowen v. Polaski, 804 F.2d 456 (8th Cir. 1986), cert. denied, 482 U.S. 927, 107 S. Ct. 3211, 96 L. Ed. 2d 698 (1987).
II. PROCEDURAL AND FACTUAL BACKGROUND A. Procedural Background
Plaintiff Lewis M. Wilson ("Wilson") filed an application for DI and SSI benefits on October 27, 1994, claiming an inability to engage in any substantial and gainful work activity since November 30, 1993. (R. at 75-81.) The applications were denied initially and on reconsideration. (R. at 82-86, 88-92.) Wilson appealed these decisions and a hearing was held before ALJ Franklin D. Carroll on January 12, 1996. Attorney Gene Wickey represented the plaintiff at the hearing. Wilson testified at the hearing.
On March 29, 1996, the ALJ ruled that Wilson was entitled to neither DI benefits nor SSI benefits. (R. at 27.) The Appeals Council of the Social Security Administration denied Wilson's request for review on March 6, 1998, thus making the ALJ's decision the final decision of the Commissioner. Wilson then filed a timely complaint on May 5, 1998, seeking judicial review of the ALJ's ruling (Doc. No. 1). Subsequently, on January 5, 1999, by order of the Honorable Mark W. Bennett, this matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) for the filing of a report and recommendation as to its disposition (Docket No. 10). The court turns now to a review of Wilson's application for benefits pursuant to 42 U.S.C. § 405(g).
B. Factual Background 1. Introductory facts and plaintiff's daily activities
Wilson was forty-three years old at the time of the hearing before the ALJ. He has an eleventh grade education and previously worked as a farm laborer and a truck driver. While a Disability Report filled out by Wilson on October 27, 1994 shows that he claimed an inability to work due to active inflammatory arthritis, the report also mentions a previous shoulder operation, a previous knee operation, and depression. (R. at 95.) Additionally, in a Reconsideration Disability Report filled out by Wilson on January 27, 1995, he stated that he had also developed heart problems. (R. at 107.)
As part of his application for DI and SSI benefits, Wilson completed several written statements about his daily activities. In the Disability Report mentioned above, Wilson stated that he is able to do some household chores, such as, cooking, cleaning, and shopping. (R. at 98.) He also noted that he "was trying to paint [the] house." Id. Wilson "walked as much as possible," visited friends daily, visited family several times a month, and drove a car daily. Id.
A Supplemental Disability Report completed by Wilson on December 7, 1994, clarified and supplemented information regarding Wilson's daily activities. Although Wilson listed no participation in social activities, he noted that his visits with friends and family lasted two hours daily. (R. at 103.) He also stated he enjoyed fishing as a hobby. (R. at 104.) Wilson clarified that he only cooked once in a while and that he only performed housework when he was able (a couple times per week). (R. at 103.) His other responsibilities included daily supervision of his sixteen year old son and picking up his mother at the hospital three times per week. (R. at 104.) Additionally, Wilson noted that his alleged disability sometimes forces him to ask for help in getting dressed. (R. at 105.)
The Reconsideration Disability Report, mentioned supra, also contained statements about Wilson's daily activities. In the report, Wilson stated that his disability caused the pain and numbness in his legs to increase. (R. at 107.) Wilson reported similar increases in pain and swelling in his hands. Id. Because of these problems, Wilson was able "to do less and less." Id.
At the hearing before the ALJ, Wilson presented testimony about his daily activities and the restrictions caused by his disability. He reiterated that his social activities included visiting friends and family, and that he enjoyed fishing as a hobby. Wilson testified that because of his arthritis and chronic low back pain he can sit for no longer than one hour and lift no more than twenty pounds. (R. at 71-72.) He stated that on "good" days, he can walk three or four blocks with no discomfort, but on "bad" days he could "hardly walk from 75 feet." (R. at 72.) The arthritis and low back pain also cause him to suffer from pain when he bends. (R. at 65.) Additionally, Wilson's heart problems cause him to suffer from mild "dizzy spells" once per week and from more severe dizzy spells "at least once every six months . . . ." (R. at 68); his previous shoulder surgery makes it painful for him to reach over his head with his right arm (R. at 57); and his previous knee surgery adds to his pain when walking long distances (R. at 58).
2. Plaintiff's medical history
In November 1992, Wilson was referred to Kevin J. Liudahl, M.D., for evaluation of a shoulder problem. (R. at 180.) Wilson's shoulder problem began when his job required him to do overhead hammering with a sledge hammer. Id. Dr. Liudahl diagnosed Wilson as having right shoulder rotator cuff tendonitis. Id. He gave Wilson an injection of lidocaine and aristospan and recommended that Wilson participate in a home stretching program. Id.
After an arthrogram on December 2, 1992, Wilson saw Dr. Liudahl for a follow-up visit. Id. Dr. Liudahl's analysis of the arthrogram "showed [a] near complete if not complete tear." Id. He recommended, and Wilson agreed, that Wilson undergo an open right shoulder AC resection and open cuff repair. (R. at 181.) On December 21, 1992, Dr. Liudahl successfully completed the surgery. (R. at 195-96.)
Post-operatively, Wilson did well. He saw Dr. Liudahl once per month from December 1992 through March 1993. (R. at 181-82.) At each visit, Dr. Liudahl noted that Wilson was doing well and improving. Id. On March 1, 1993, at Wilson's last follow-up visit for his shoulder, Dr. Liudahl thought that Wilson was "capable of going ahead and going about his normal work." (R. at 182.)
Wilson saw Kim Jundt, M.D., on April 5, 1993, complaining of a sore right knee. Dr. Jundt noted that as a result of a sledge hammer accident when Wilson was sixteen, "every year or two [Wilson] does have a period of a couple weeks where it is more tender." (R. at 166.) Dr. Jundt's assessment was recurrent or chronic knee pain and effusion. Id. He gave Wilson a knee immobilizer, nonsteroidal medication, and told him to ice the knee.
On April 15, 1993, Wilson saw Leanna K. Johnson-Winant, M.D., for a follow-up visit regarding his right knee. Dr. Johnson-Winant noted that Wilson walked with a slight limp and that there was no change in his pain. (R. at 167.) X-rays of the knee showed no abnormalities. Id. Dr. Johnson-Winant diagnosed Wilson with persistent right knee pain. Id. She gave Wilson a cortisone injection and told him to continue treating it with heat and ice. Id. She also told him to restrict his activities. Id.
In another follow-up examination for his knee, Wilson saw Scott Rens, M.D., on May 4, 1993. Wilson's condition showed no change. (R. at 168.) Dr. Rens diagnosed Wilson with right knee medial pain and a possible meniscal tear. Id. "Given . . . the fact the steroids ha[d] not helped," Dr. Rens suggested that Wilson undergo an orthopedic evaluation from Dr. Liudahl. Id.
Dr. Liudahl examined Wilson on May 6, 1993. He found that Wilson had early medial femoral condyle chondromalacia. (R. at 182.) He gave Wilson an injection of lidocaine and aristospan, and told him if the condition did not improve he would perform a diagnostic arthroscopy. Id.
On May 21, 1993, Wilson returned to Dr. Liudahl. He told Dr. Liudahl of painful "popping" and "catching" in his right knee. (R. at 183.) Dr. Liudahl found a trace of synovitis as well as severe medial jointline tenderness. Id. He recommended that Wilson undergo "diagnostic arthroscopy, cartilage shaving, and/or partial meniscectomy." Id. Wilson agreed and Dr. Liudahl successfully performed the surgery on May 25, 1993. Id.
Wilson saw Dr. Liudahl twice in June 1993 for follow-up examinations. He generally noted that Wilson was doing well and recommended a home exercise program. Id. On June 25, 1993, after noting that Wilson's gait had improved markedly, Dr. Liudahl stated that Wilson had "no restrictions" and could "resume full work." Id.
On November 30, 1993, Wilson went to the emergency room at Marian Health Center complaining of left knee pain. M.O. McCorkindale, M.D., saw Wilson, gave him a shot of Toradol, and told him to follow-up with Michael L. Hattan, M.D., in one week. (R. at 207.) When Wilson saw Dr. Hattan about his left knee trouble, Dr. Hattan diagnosed it as tendonitis. (R. at 169.) He gave Wilson an aristospan and xylocaine injection and told him to keep his left leg in a "straight leg" brace for one week. Id.
Dr. Hattan saw Wilson two more times in December for follow-up visits. At the first visit, Dr. Hattan noted Wilson was doing worse and diagnosed him with persistent tendinitis of the left knee. (R. at 170.) Dr. Hattan decided to have Wilson try physical therapy. Id. At the second visit, Dr. Hattan found that the physical therapy did not improve Wilson's condition. Id. He then decided to refer Wilson to an orthopedic surgeon, Dr. Liudahl. Id.
On December 30, 1993, Dr. Liudahl saw Wilson for an evaluation of Wilson's left knee. Dr. Liudahl noted that Wilson had a mild antalgic gait and severe point tenderness. (R. at 183.) He concluded that Wilson had a severe amount of patellar chondromalacia and some medial femoral condyle chondromalacia. Id. He gave Wilson an injection of lidocaine and aristospan. (R. at 184.)
In another follow-up visit, Wilson saw Dr. Liudahl on January 12, 1994. Wilson still had pain, a mild limp, and tenderness. Id. Dr. Liudahl diagnosed Wilson as having persistent knee pain and recommended diagnostic arthroscopy. Id. However, Dr. Hattan's notes of an examination performed on Wilson on March 11, 1994, reflect that Wilson was unable to pay for the procedure Dr. Liudahl recommended. (R. at 171.)
On June 17, 1994, Wilson was brought by the police to the emergency room after he attempted suicide by slashing his left wrist. (R. at 210.) Wilson cited depression and intoxication as the reasons behind the attempt. Id. Wilson received medication, and since that time, according to Wilson's testimony, his depression has not been severe. (R. at 58.) Furthermore, Wilson testified that at the time of the hearing, he had not had any alcohol in over a year. (R. at 59.)
Wilson saw Del Lassen, M.D., on August 29, 1994, complaining of pain and swelling in his legs and arms. Wilson told Dr. Lassen that he had been having the pain intermittently since November of 1993. (R. at 173.) Wilson underwent some tests performed and came back to see Dr. Lassen on September 7, 1994, to discuss the results. Id. Dr. Lassen then diagnosed Wilson with hand pain of questionable etiology and referred him to Nils Erikson, M.D., a rheumatologist.
Dr. Erikson examined Wilson on October 6, 1994, and laid out his findings in a "New Patient Evaluation" dated October 7, 1994. (R. at 309-11.) He determined that Wilson had "[m]igratory inflammatory arthritis by history," and "[a] clinical scenario is consistent with melandromic rheumatism." (R. at 311.) Dr. Erikson recommended that Wilson undergo more tests in order to determine the severity of his condition and a more specific cause. Id.
Wilson's next appointment with Dr. Erikson was on October 26, 1994. Wilson had no change in his symptoms, but complained of paresthesias of the left hand and finger. (R. at 244.) Dr. Erikson's examination showed tenderness of Wilson's wrist and finger, a decrease in hand closure, and a positive Tinel's sign. Id. Wilson was diagnosed with inflammatory polyarthritis and carpal tunnel syndrome. Id. Dr. Erikson began Wilson on a corticosteroid treatment and prescribed prednisone, azulfidine, and naprosyn. (R. at 244-45.) He also wrote a note for Wilson stating "[h]e should not resume work for three months when he will be re-evaluated." (R. at 247.)
Dr. Erikson saw Wilson again on January 31, 1995. Wilson continued to do poorly and complained of "migratory, intermittent pain in the left and right hand and leg." (R. at 245.) Dr. Erikson performed tests to check the status of Wilson's inflammation and to monitor for toxicity of Wilson's medications. Id. He decided to continue Wilson's current therapy pending the results of the tests. Id.
On February 8, 1995, Wilson discussed the lab results with Dr. Erikson. He also told Dr. Erikson that his most significant problem, at that time, was a swollen and stiff left knee. (R. at 246.) After discussing a research study, to which Wilson was agreeable, Dr. Erikson set up a follow-up appointment one week later. Id.
As scheduled, Wilson saw Dr. Erikson on February 15, 1995, for the follow-up appointment. Wilson continued to complain of pain and swelling in his left knee. Id. Dr. Erikson diagnosed Wilson with acute arthritis of the left knee and rheumatoid arthritis with persistent disease activity. Id. He performed an arthrocentesis on Wilson's left knee and removed a few drops of synovial fluid. Id. He also injected Wilson's left knee with triamcinolone. Id. Dr. Erikson advised Wilson that they would continue with Wilson's current therapy. Id.
Wilson again saw Dr. Erikson on March 16, 1995. Wilson continued to complain of pain in his left knee, but also complained of pain in his left leg, left hip, and his low back. Id. Dr. Erikson noted that the injection given to Wilson at the previous visit "was not as helpful as hoped." (R. at 315.) Because Dr. Erikson planned to close his practice in the summer of 1995, he told Wilson only to return for a follow-up visit if Wilson had problems. Id. He also told Wilson to consider surgical treatment of his "symptomatic areas," and to follow-up with his primary physician for his non-rheumatologic disorder. Id. As for Wilson's low back pain complaint, an x-ray performed on Wilson's lumbar spine showed no significant abnormality. Id.
The next rheumatologist Wilson saw was Robert C. Wisco, M.D., on October 6, 1995. Wilson's complained of worsening arthritis, especially in the morning when he experience one to two hours of stiffness. (R. at 296.) Dr. Wisco noted that one of the drugs Wilson took to relieve his symptoms, Sulfasalazine, caused Wilson to have diarrhea. Id. He diagnosed Wilson with systemic inflammatory arthritis and recommended a change in medication. (R. at 296-97.) Dr. Wisco continued Wilson on Darvocet and Prednisone, but gave him a new prescription for Methotrexate and Voltaren. (R. at 297.)
On November 21, 1995, Wilson saw Dr. Wisco for a follow-up examination. Wilson's arthritis continued to bother him, but Dr. Wisco noted that Wilson seemed "to be tolerating" his new medicine. (R. at 321.) Dr. Wisco's diagnosis remained the same and he continued Wilson's same dosage on all medications. Id. He also ordered tests run in order to screen for toxicity of the medications. Id.
Wilson's obtained his lab results, which showed no toxicity problems, on January 3, 1996, and returned to see Dr. Wisco on January 31, 1996. Wilson's chief complaint was an increase in pain in his lower back made worse with any bending or lifting. (R. at 325.) Upon examination, Dr. Wisco noted "moderate tenderness over the lower lumbar vertebral area and paraspinous muscle regions." Id. Dr. Wisco added a diagnosis of low back pain to Wilson's rheumatoid arthritis. Id. Although he found that the low back pain was of questionable etiology, he also observed that Wilson had a "past history of a herniated disc which was noted many years ago." Id. Wilson had more tests performed to screen for toxicity from his medications. Id. As for Wilson's low back pain, Dr. Wisco scheduled lumbosacral spine films done. Id. The x-rays, performed by Y.T. Chung, M.D., on February 12, 1996, showed: (1) moderate to severe spinal and neural foraminal stenosis at L4-5 and L3-4, (2) mild spinal and neural foraminal stenoses at L2-3, (3) a vertebral hemangioma in L4, and (4) mild to moderate hypertrophic degenerative changes of the facets of the lumbar spine. (R. at 326.)
Wilson also developed heart problems in late 1994. From March 1995 through July 1995 he saw Dr. Lassen about complaints of pounding in his chest and irregular heartbeats. (R. at 277.) In March, Dr. Lassen's initial examination revealed an occasional irregular rhythm in Wilson's heart and decided to fit him with a Holter monitor. Id. In early April, Dr. Lassen noted that the Holter monitor showed "many PVCs including bigeminy." Id. Wilson's complaints continued through July, and Dr. Lassen treated him with Sectral. (R. at 277-78.) On July 10, 1995, after noting Wilson's heart had occasional skipped beats, Dr. Lassen referred him to a cardiologist. (R. at 281.)
Although the cardiologist's notes do not appear in the record, Dr. Lassen's progress notes summarize the cardiologist's conclusions. The cardiologist, Dr. Miller, apparently diagnosed Wilson with ventricular ectopy and recommended that he continue taking Sectral. Id. Dr. Lassen subsequently examined Wilson on August 16, 1995, and noted that Wilson stated his heart was doing well. (R. at 282.)
3. The ALJ's conclusions
The ALJ followed the steps set out in the Social Security Administration's Regulations for evaluating disabilities. See 20 C.F.R. § 404.1520(a) (1999). He determined that Wilson had not engaged in substantial gainful activity since November 30, 1993. (R. at 26.) Although he found that the medical evidence established that Wilson had medically determinable impairments, he nonetheless found that Wilson did not have an impairment or combination of impairments equal to those listed in Appendix 1, Subpart P, Regulations No. 4. (R. at 25.) The ALJ then determined that Henderson could not return to his past relevant work, but that he did have the residual functional capacity to be able to perform the full range of unskilled, sedentary occupations. Id.
The ALJ found that Wilson's impairments were:
"inflammatory polyarthritis, rheumatoid arthritis, status post right rotator cuff repair, status post arthroscopy and cartilage and synovial shaving of the right knee, medial collateral ligament strain of the left knee, moderate to severe spinal and neural foraminal stenosis at L4-5 and L3-4, mild spinal and neural foraminal stenosis at L2-3, mild to moderate hypertrophic degenerative changes of the facets of the lumbar spine, chronic pain syndrome, history of superficial vein phlebitis of the left lower extremity, bigeminy and frequent premature ventricular contractions (controlled with medication), single episode of major depression, and history of alcohol abuse (in remission)."
(R. at 26.)
III. ANALYSIS A. The Substantial Evidence Standard
Governing precedent in the Eighth Circuit requires this court to affirm the ALJ's findings, provided they are supported by substantial evidence in the record as a whole. Kelley v. Callahan, 133 F.3d 583, 587, (8th Cir. 1998) (citing Matthews v. Bowen, 879 F.2d 422, 423-24 (8th Cir. 1989)); 42 U.S.C. § 405(g) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . ."). Under this standard, substantial evidence means something "less than a preponderance" of the evidence, Kelley, 133 F.3d at 587, but "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); accord Ellison v. Sullivan, 921 F.2d 816, 818 (8th Cir. 1990). Substantial evidence requires "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401, 91 S. Ct. at 1427; accord Ellison, 921 F.2d at 818.
In evaluating the evidence in an appeal of a denial of benefits, the court must apply a balancing test to assess any contradictory evidence. Sobania v. Secretary of Health Human Serv., 879 F.2d 441, 444 (8th Cir. 1989) (citing Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987)). The court, however, does "not reweigh the evidence or review the factual record de novo." Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (quoting Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994)). Instead, if after reviewing the evidence the court finds it "possible to draw two inconsistent positions from the evidence and one of those positions represents the agency's findings, [the court] must affirm the [Commissioner's] decision." Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992) (citing Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989)). This is true even in cases where the court "might have weighed the evidence differently," Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994) (citing Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992)), because the court may not reverse "the Commissioner's decision merely because of the existence of substantial evidence supporting a different outcome." Spradling v. Chater, 126 F.3d 1072, 1074 (8th Cir. 1997).
B. Disability Determination and the Burden of Proof
Section 423(d) of the Social Security Act defines a disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505. A claimant has a disability when he is "not only unable to do his previous work but cannot, considering . . . his age, education and work experience, engage in any other kind of substantial gainful work which exists in [significant numbers in] the national economy . . . either in the region in which such individual lives or in several regions of the country." 42 U.S.C. § 432(d)(2)(A).
To determine whether a claimant has a disability within the meaning of the Social Security Act, the Commissioner follows a five-step process outlined in the regulations. 20 C.F.R. § 404.1520 416.920; see Kelley, 133 F.3d at 587-88, (citing Ingram v. Chater, 107 F.3d 598, 600 (8th Cir. 1997)). First, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity. Second, he looks to see whether the claimant labors under a severe impairment, i.e., "one that significantly limits the claimant's physical or mental ability to perform basic work activities." Kelley, 133 F.3d at 587-88. Third, if the claimant does have such an impairment, the Commissioner must decide whether this impairment meets or equals one of the presumptively disabling impairments listed in the regulations. If the impairment does qualify as a presumptively disabling one, then the claimant is considered disabled, regardless of his age, education, or work experience. Fourth, the Commissioner must examine whether the claimant retains the residual functional capacity to perform his past relevant work. Finally, if the claimant demonstrates that he is unable to perform his past relevant work, the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform, given his impairments and vocational factors such as age, education and work experience. Id.; Hunt v. Heckler, 748 F.2d 478, 479-80 (8th Cir. 1984) ("[O]nce the claimant has shown a disability that prevents him from returning to his previous line of work, the burden shifts to the ALJ to show that there is other work in the national economy that he could perform.") (citing Baugus v. Secretary of Health Human Serv., 717 F.2d 443, 445-46 (8th Cir. 1983); Nettles v. Schweiker, 714 F.2d 833, 835-36 (8th Cir. 1983); O'Leary v. Schweiker, 710 F.2d 1334, 1337 (8th Cir. 1983)).
C. The Polaski Standard and Subjective Pain Credibility Determinations
The Sixth and Seventh Circuits have said, "an ALJ's credibility determinations are, of course, entitled to considerable weight." Young v. Secretary of HHS, 957 F.2d 386, 392 (7th Cir. 1992) (citing Cheshier v. Bowen, 831 F.2d 687, 690 (7th Cir. 1987)); see also Gooch v. Secretary of HHS, 833 F.2d 589, 592 (6th Cir. 1987), cert. denied, 484 U.S. 1075, 108 S.Ct. 1050, 98 L.Ed.2d 1012 (1988); Hardaway v. Secretary of HHS, 823 F.2d 922, 928 (6th Cir. 1987). Nonetheless, in the Eight Circuit, an ALJ may not discredit pain allegations simply because there is a lack of objective evidence; instead, the ALJ may only discredit subjective pain complaints ("SPC's") if they are inconsistent with the record as a whole. Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir. 1994); see also Bishop v. Sullivan, 900 F.2d 1259, 1262 (8th Cir. 1990) (citing Polaski v. Heckler, 739 F.2d at 1322)). Under Polaski,
"The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant's prior work record, and observations by third parties and treating and examining physicians relating to such matters as:
1) the 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;
5) functional restrictions."
Polaski, 739 F.2d at 1322.
D. Review of the ALJ's Decision
Wilson contends that the ALJ's decision denying benefits is not supported by substantial evidence. In support of his argument, Wilson states that the ALJ failed to properly consider the medical evidence and his subjective pain complaints ("SPCs"). Wilson also argues that the ALJ failed to detail the reasons for discrediting Wilson's testimony. The court therefore turns to a review of the ALJ's decision, with regard to the Polaski factors, to determine if the decision rests on substantial evidence.
1. The claimant's daily activities
The Commissioner argues that Wilson's daily activities are inconsistent with his SPCs. In particular, he notes the ALJ's reliance on Wilson's ability to care for his teenage son, do household chores, fish, visit with friends and neighbors, cook, shop, and drive a car. The court notes that there are conflicting authorities on whether such activities are probative on the question of disability, compare Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995) (inconsistencies between subjective complaints of pain and daily living patterns may diminish credibility), with Ricketts v. Secretary of HHS, 902 F.2d 661, 663 (8th Cir. 1990) (finding ability to do light housework does not necessarily indicate ability to perform gainful employment); see also Hight v. Shalala, 986 F.2d 1242, 1244 (8th Cir. 1993) (noting fact that claimant not bedridden does not mean he is not disabled).
In support of his argument, the Commissioner also cites medical reports that note Wilson injured his left knee "while he was chasing a kid," (R. at 282), and experienced chest pain while chasing cattle, (R. at 238-39). The two incidents, the former being based on a figure of speech that does not necessarily imply sprinting after a child and the latter being based on an incident that occurred well before Wilson's chief complaints of arthritis and heart problems, do not provide any meaningful support for the Commissioner's argument. The conflicting case law and lack of support in the record for either party leads the court to find that this factor favors neither Wilson nor the Commissioner.
2. The duration, frequency, and intensity of the pain
Ample evidence in the record exists to support Wilson on this Polaski factor. Starting in the late summer and early fall of 1994, Wilson began to consistently complain of pain in his joints. In fact, the first rheumatologist Wilson saw, Dr. Erikson, recommended that Wilson stay off work for three months while his arthritis was being treated. Wilson received treatment by injections and several different medications, none of which had much effect on his continuing pain complaints. After seeing Dr. Erikson for approximately one year, Wilson saw a second rheumatologist, Dr.Wisco, who changed Wilson's medications. Wilson, however, continued to complain of pain in his joints.
3. Precipitating and aggravating factors
While the ALJ did not explicitly analyze precipitating or aggravating factors of Wilson's SPCs, he did discredit Wilson's contention that reaching overhead with his right arm caused him pain. To support this conclusion, the ALJ noted several doctors reports that stated Wilson had a good recovery from his rotator cuff surgery and good range of motion in his right shoulder.
A review of the record reveals a few more precipitating and aggravating factors. For instance, Wilson complained that his arthritis pain was worst during the first few hours of the morning. He also stated that frequent bending aggravated the pain in his lower back. Generally, Wilson's pain is exacerbated by any prolonged physical activity. Because the ALJ did not address these factors and nothing in the record indicates there is reason to discredit them, the court accepts them as true.
4. Dosage, effectiveness, and side effects of medication
Wilson testified that he experienced stomach irritation as a side effect of one of his medications. The Commissioner argues that the ALJ dismissed any significance of the side effect because a doctor subsequently prescribed an additional medication that successfully managed the stomach irritation. While this evaluation is accurate, it is important to note that the analysis of side effects of medication is only one aspect of this Polaski factor.
A claimant's failure to seek aggressive treatment can support an ALJ's conclusion that the claimant's SPCs lack credibility. Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994). Furthermore, a claimant's failure to take strong pain medication has also been found to be inconsistent with subjective complaints of disabling pain. Haynes v. Shalala, 26 F.3d 812, 814 (8th Cir. 1994). The record shows Wilson's case to be the opposite; he has sought treatment for his arthritis pain since August 1994, and the two rheumatologists that treated Wilson have tried different combinations of prescription medications as well as injections. The evidence of Wilson's continuing search for treatment, use of prescription medication, and his rheumatologists' consistent diagnosis of rheumatoid arthritis support the credibility of Wilson's SPCs. See Cox v. Apfel, 160 F.3d 1203, 1208 (8th Cir. 1998) (doctors' consistent diagnosis of claimant's chronic low back pain coupled with history of pain management and drug therapy supported credibility of claimant's SPCs).
5. Functional restrictions
Although the ALJ did not explicitly address this factor, he found that Wilson was not functionally restricted from all work. Wilson testified that he could only lift up to twenty pounds, sit for an hour at a time, and walk three to four blocks on "good" days. The ALJ essentially agreed with these assertions, but concluded that "[Wilson's] testimony, insofar as it attempted to create the impression of the inability to perform even sedentary work activities, has been found to lack credibility." (R. at 24.)
As stated above, the ALJ essentially agreed with all of Wilson's asserted functional restrictions. The only restriction which the ALJ could arguably be seen to disagree with is Wilson's sitting restriction. An ALJ may discredit SPCs if they are inconsistent with the record as a whole. Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir. 1994). Furthermore, lack of significant restrictions by doctors can be found to be inconsistent with a claimant's SPCs. Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir. 1993). While Wilson stated that he could only sit for an hour at a time before he needed to "walk around or recline . . .," (R. at 71), the ALJ found that Wilson could "sit (with normal breaks and meal periods) throughout an 8-hour work day. . . ." (R. at 24.) Except for a three-month period in late 1994, no doctor ever restricted Wilson's ability to sit, much less his ability to work. Due to the lack of doctor-recommended restrictions in the record, the ALJ was free to find that Wilson was able to sit throughout an 8-hour work day with normal breaks.
The ALJ determined that Wilson could not perform occupations that required: (1) frequent lifting and/or carrying of objects weighing up to ten pounds, (2) prolonged walking and/or standing, (3) or frequent bending.
The only doctor-recommended limitation in the record is the recommendation by Dr. Erikson in October 1994 that Wilson stay off work for three months. The only other evidence of a doctor's recommended limitations comes from an October 18, 1995, letter to Wilson's attorney from Dr. Wisco. In the letter Dr. Wisco noted that because of the "delay in [the] onset of action" of Wilson's new medications, it was "premature for him to state with a reasonable degree of certainty" whether or not Wilson was permanently disabled. (R. at 294.) Dr. Wisco, however, saw Wilson in January 1996 and the notes of that visit contain no reference to any functional limitations.
6. The claimant's relevant work history
The ALJ found that Wilson's relevant work history was did not support his claims of disabling SPCs. He noted that Wilson had a limited work history and that Wilson's earnings record showed that his income varied from $1,009.04 in 1981 to $15,880.00 in 1979. He also noted that since Wilson's alleged disability onset date, November 30, 1993,
Wilson's source of income has been payments from Aid to Dependent Children and food stamps. Citing the fact that the monthly payments from these programs totaled $573, an amount which equaled or exceeded that which Wilson earned while actually employed, the ALJ reasoned that Wilson was "not highly motivated toward employment." (R. at 16.)
The ALJ was correct in noting that Wilson's work history, standing alone, said "nothing concerning his impairments. . . ." (R. at 16.) However, the ALJ's citation to the fact that Wilson collects payments from AFDC and food stamps as support for his conclusion that Wilson is unmotivated to work lacks merit. Using the ALJ's reasoning, every person who collects AFDC or food stamps payments would be considered unmotivated to work, even if the person was actually disabled. Thus, Wilson's work history does not weigh in favor of either the ALJ or Wilson.
7. Whether objective medical evidence exists to support the complaints
In his decision, the ALJ notes that one of the factors under Polaski is "the existence or non-existence of an `objective' medical basis to support the degree of severity of an individual's alleged symptoms." (R. at 17) (emphasis in original). While the ALJ never explicitly states it, his opinion infers that he credits the objective medical evidence as supporting a certain amount of pain. He makes clear, however, that he does not believe that Wilson's pain is so severe as to preclude all work activity.
The ALJ's evaluation of this factor is based on substantial evidence from the record. For example, he supports his decision to not fully credit Wilson's complaints of pain and swelling by noting the lack of objective findings of persistent synovitis. The record obviously contains objective medical evidence to support pain complaints, but the ALJ correctly determined the severity of those complaints.
8. Overall Polaski analysis
Wilson argues that although the ALJ cited Polaski, he failed to offer reasons for his finding that Wilson's SPCs were not credible. As long as an ALJ acknowledges and considers the Polaski factors before discounting a claimant's SPCs, he does not have to explicitly discuss each Polaski factor in a methodical fashion. Brown v. Chater, 87 F.3d 963, 966 (8th Cir. 1996); see also Benskin v. Bowen, 830 F.2d 878, 883 (8th Cir. 1987) ("An arguable deficiency in opinion-writing technique is not a sufficient reason for setting aside an administrative finding where . . . the deficiency probably had no practical effect on the outcome of the case.").
The ALJ in Wilson's case properly acknowledged and considered the Polaski factors before discounting Wilson's SPCs. Wilson's argument that the ALJ offered no reasons for discrediting Wilson's SPCs is incorrect. While the court disagreed with the ALJ's analysis of some of the factors, the court finds that overall the ALJ's decision is supported by substantial evidence. See Mitchell v. Shalala, 25 F.3d 712, 714 (8th Cir. 1994) ("We will not reverse a decision simply because some evidence may support the opposite conclusion."). This is especially true in light of the lack of significant restrictions placed on Wilson by any of his doctors and the lack of objective medical evidence to support the severity of Wilson's SPCs.
IV. CONCLUSION
The ALJ's decision finding Wilson not disabled and capable of sedentary work is based on substantial evidence.
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, that judgment be entered in favor of the defendant.
Objections must specify the parts of the report and recommendation to which objections are made. Objections must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155, 106 S. Ct. 466, 475, 88 L. Ed. 2d 435 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).
IT IS SO ORDERED.